State Consumer Disputes Redressal Commission
Smt. Uma Mondal vs Dr. S. Mukherjee on 20 September, 2022
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Complaint Case No. CC/291/2013 ( Date of Filing : 05 Dec 2013 ) 1. Smt. Uma Mondal W/o Late Swapan Mondal, Grom Golad Hora, P.O. Herodanga, P.S. Canning, Dist. South 24 Pgs. ...........Complainant(s) Versus 1. Dr. S. Mukherjee Medical College Hospital, E.N.T. Department, College Street, P.S. Bowbazar, Kolkata - 700 012. 2. Medical Super Medical College Hospital, E.N.T. Department, College Street, P.S. Bowbazar, Kolkata - 700 012. ............Opp.Party(s) BEFORE: HON'BLE MR. JUSTICE MANOJIT MANDAL PRESIDENT HON'BLE MRS. SAMIKSHA BHATTACHARYA MEMBER HON'BLE MR. SHYAMAL KUMAR GHOSH MEMBER PRESENT: Mr. Anjan Kumar Dutta, Advocate for the Complainant 1 None appears ......for the Opp. Party Dated : 20 Sep 2022 Final Order / Judgement Shyamal Kumar Ghosh, Member
The instant consumer complaint in respect of medical negligence has been filed by Smt Uma Mondal wife of late Swapan Mondal against the opposite parties praying for compensation, cost etc. The synopsis of the case is that the husband of the complainant viz. Swapan Mondal since diseased was suffering from ENT problem and was admitted in Medical College Hospital under the supervision of Dr. S.Mukherjee on 28/11/2012. The patient was treated and operated there on 10/12/2012. The operation was done by any junior doctor instead of Dr. Mukherjee. After operation the patient was shifted at the bed of recovery department at about 4.30 PM. At about 12 o'clock in night the bleeding was started and the patient had been suffering from breathing problem. Without any delay the brother of the complainant was trying, on several occasions, to inform the said event to the doctor on duty and surprisingly he did not come to attend the patient. Rather the said doctor was talking with a lady inside the room which was under lock. The complainant further stated that her brother Bhabani Patra knocked at the door of the said room but the said house staff along with lady used to deliver filthy language and stated that they had no responsibility at all regarding this event and they categorically further stated that only Dr. S. Mukherjee was the sole responsible person as under his guidance and control, the patient was admitted at the said hospital. Thereafter on 11/12/2012 in the morning the condition of the patient was highly deteriorated. No doctor attended the patient and at last on 11/12/2012 at about 7.25 A.M the patient expired without any assistance of any doctor of the said hospital. Thereafter, at about 8 AM Dr. S. Mukherjee came to the hospital and stated that the patient had no chance for recovery. There was a clear gross negligence and deficiency in service on the part of the doctors and hospital authority. The patient party demanded for post-mortem of the body of the patient but the doctors of the said hospital stated that they could not handover the body to the patient party before ¾ days if the post-mortem was done. Being afraid of the said event the patient party took the body from hospital. For this unfortunate event, Dr. Mukherjee and the doctor engaged in night shift on the particular date and time both were negligent and deficient in service. It is also added that the death certificate was issued on 11/12/2012 wherefrom it appeared that cancer 4th stage and heart attack have been written down for causing death whereas cancer grade - II has been written/mentioned in the biopsy report dated 20/12/2012. So from these two documents, the apparent difference has clearly been shown regarding the stage of cancer. The complainant lodged a complaint/FIR at Bowbazar Police Station stating all facts and requested for post mortem of the patient. But the doctors and hospital authority told that it was a very long process. For the above reason no post mortem was done. Due to gross negligence and carelessness on the part of the doctors and hospital authority during the period of post operation, the death of the patient was caused. Having no other alternative, the complainant knocked at the door of the Commission for getting proper relief / reliefs as prayed for.
The opposite parties contested this case by filing writing version stating inter alia that the patient attended the ENT Department of the Medical College & Hospital, Kolkata on 7th and 18th July 2012. The patient was advised to visit Endocrinology Department (diabetic check up department) for specialist opinion. But the patient attended OPD of ENT department on 25/08/2012 without following the advice of doctor. He was further advised in twice for pre-anaesthetic check up on 25/08/2012 and 31/10/2012. But due to non-attendance on the part of the patient at the hospital and without taking prescribed medicines regularly, the disease progressed rapidly affecting the surrounding areas with greater severity. The patient was further referred to dental OPD on 10/11/2012. But the patient ignored and avoided the said advice of the doctor.
Thereafter, the patient Swapan Mondal was admitted in Free Bed no M-2 of Ezra Building at Medical College & Hospital on 28/11/2012. He was operated on 10/12/2012. It was a major operation under general anaesthesia. The operation was done after due consultation with Endocrinology Department and Surgical Oncology Department of the Medical College & Hospital. After successful operation made by Dr. Sourav Kr. Ghosh, Head of Department, Surgical Oncology under the supervision of Dr. S. Mukherjee, HOD ENT Dept, the patient was shifted to the recovery room available in Ezra ENT indoor dept. The said patient had been monitoring time to time by the team of doctors under the guidance of Dr. Subrata Mukherjee, HOD, ENT dept. The post operative round was initially made by Dr. Subrata Mukherjee with Post Graduate Trainee and RMO on 10/12/2012 at about 5 PM and found the patient in stable condition and necessary advice was made. The next round was made by Dr. Saurav Kumar Ghosh on 5.30 PM. Thereafter, at 8.45 PM. the further round was made.
Dr. Niladri Chakraborty, Junior Resident, Dept of ENT, Medical College & Hospital was on the duty as 'CALL DOCTOR' during the night of 10/12/2012. Mr. Bhabani Patra (brother of the complainant) was allowed to stay near the patient at the night on 10/12/2012. At about 2.30 AM on 11/12/2012, patient party made a complaint that the patient was suffering from respiratory distress and the said doctor attended the patient. Subsequently, on two occasions around 4.30 AM and 6.30 AM , said Dr. Chakraborty examined the patient. The patient was further examined by said doctor at about 7.05 AM when the condition of the patient was going to be deteriorated gradually. Dr. Chakraborty treated the patient till his death.
By filing the written version the ops also asserted that one lady with whom Dr. Chakraborty talking at night in the duty room was a duty intern and the said duty room was located inside the ward without any lock so that all patients along with patient parties were entitled to ingress to the duty room without any barrier.
However, instead of all efforts taken by the doctors, the patient succumbed to death on 11/12/2012 at about 7.25 AM. Soon after getting death information on 11/12/2012 at about 8.15 AM the HOD visited the ward and enquired the matter in details. The allegations made by the patient party were totally false and fabricated. The matter was informed forthwith to MSVP (Medical Superintendent Cum Vice-Principal) and an enquiry committee was formed. The necessary investigations were made by enquiry committee regarding the duty of night shift doctor as well as discrepancy in the biopsy report dated 20/12/2012 and death certificate dated 11/12/2012. The enquiry report revealed that the patient was a known case of advanced stage of malignancy with co morbidity with past history of tuberculosis. As regard to the stage of the disease and co morbidity, the operation was considered as a high risk operation with graded prognosis. In the post operative period the patient was attended and treated regularly by on duty doctors.
The enquiry committee observed that there was no negligence on the part of night shift doctor regarding treatment. Regarding grading or staging of the cancer, there were two different views. One was based upon clinical assessment and the other was based upon histological examination made by pathologist. One might not be correlated with the other.
There was no negligence and deficiency in service on the part of the doctors. The complainant was not entitled to get any reliefs as prayed for. Accordingly the ld counsel for the ops prayed for dismissal of the consumer complaint with cost.
The ld counsel appearing for complainant, at the time of hearing, submitted that on 28/11/2012 the patient Swapan Mondal was admitted in M-2 of ENT dept under the care of Dr. S. Mukherjee. The operation was done by junior doctor instead of Dr. Mukherjee. On 10/12/2012 at about 4.30 PM the patient was shifted to recovery bed. But after 12 hours, the bleeding was started. The respiratory distress was also started. The complainant's brother viz. Bhabani Patra informed the incident to night shift doctor. The ld counsel further argued that the night shift doctor was talking with another lady doctor in a duty room which was locked. Though on several occasions one sister checked the patient along with whether the saline and gas were properly supplied or not. But on repeated calls the night shift doctor did not attend the patient. At last on 11/12/2012, at about 7.30 AM the patient expired. The patient party demanded for post mortem but the doctor told that it was a long process. Thereafter the patient party with afraid took the body of the patient with death certificate. It was further argued that there was a clear discrepancy between the report submitted by the doctor in death certificate and biopsy report dated 20/12/2012. There was a clear gross negligence and deficiency in service on the part of the doctors. Hence, the ld counsel prayed for granting compensation and cost.
At the time of hearing neither the doctor nor their ld. Counsel appeared before this Commission. On calls they were absent.
We have heard the ld. Counsel for the complainant at length and in full and perused the materials on record.
At first we try to decide whether the complainant comes well within the purview of the definition of the 'consumer' under Consumer Protection Act, 1986 or not.
It is admitted that the matter is related to the medical negligence. The instant consumer case has been filed before the Commission in the year 2013 and as such the matter has been guided by the old Act, 1986.
Section 2(d)(ii) of the Act speaks the following:-
"consumer means any person who hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purpose."
In the instant case the patient viz. Swapan Mondal was admitted at Medical College Hospital Kolkata on 28/11/2012 which is clearly revealed from visitors pass issued by staff nurse/nurse on duty of the concerned hospital. It appears from the written version submitted by the ops and from the relevant treatment sheets that the patient was admitted at FREE BED no-M2 of Ezra Building at Medical College and Hospital. The visitor pass also reveals that one patient party was permitted to stay with the patient for 24 hours and thereafter the hospital concerned endorsed his/her signature with date 10/12/2012.
From the four corners of the record it is found that the patient viz. Swapan Mondal aged about 44 years was a patient of diabetic hypertensive with history of treated pulmonary tuberculosis and also diagnosed with squamous cell carcinoma in right sided buccal mucosa. The operation was done on 10/12/2012 and on 11/12/2012 at about 7.25 AM the patient viz. Swapan Mondal died. Thereafter, the complainant Uma Mondal wife of late Swapan Mondal instituted the instant consumer case for medical negligence on the part of ops/doctors .
Under such circumstances we can safely reliance upon the decision of Indian Medical Association vs V.P. Santa and others reported in AIR 1996 Supreme Court 550 in Civil Appeal no - 688/1993 wherein the Hon'ble Apex Court held that persons are belonging to "poor class" who are provided services free of charges are the beneficiaries of the service which is hired or availed of by the "paying class". Service rendered by the doctors and hospitals who render free service to poor patients and charge fees from others irrespective of the fact that part of the service is rendered free of charge, would nevertheless fall within the ambit of expression Service as defined in section 2(1)(o) of the Consumer Protection Act, 1986. Accordingly the beneficiary of any goods or service is to be treated as a Consumer.
Accordingly there is no hesitation to hold that the complainant comes well within the purview of the definition of 'consumer' and 'service' also as per C.P.Act 1986. So the aforementioned point is decided as per above observations.
The record reveals that after death of the patient, a written complaint, regarding medical negligence specifically on the part of night call doctor, was lodged by Sri Bhabani Patra, brother of the complainant and to that effect an enquiry committee was constituted by MSVP (Medical Superintendent Cum Vice Principal). The said committee was consisted of Pro. Dr. K.N.Das, HOD, Dept of General Surgery, Medical College, Kolkata, Dr. Biswajit Sikdar, Associate Prof, Dept of ENT, Medical College, Kolkata and Dr. Sibhasish Bhattacharya, HOD Dept of Medical Oncology, Medical College, Kolkata. We have perused the said enquiry committee report. The statements of Dr. Tushar Kanti Chakraborty (Anaesthetist), Dr. Niladri Chakroborty (on duty ENT doctor), Dr. Sourav Ghosh (oncosurgeon) are attached herewith. We have meticulously perused all statements and in opinion, the enquiry committee observed that there was no apparent negligence on the part of the night shift doctor regarding treatment and the confusion regarding the staging and grading of the disease by the patient party was due to false interpretation of the medical terminologies.
At this stage, we try to explain the actual medical proposition regarding the staging and grading of the cancer and to that effect, MD ANDERSON CANCER CENTER, THE UNIVERSITY OF TEXAS observed the following aspects of the disease:-
a.Regarding Grade of cancer-
A cancer's grade describes how abnormal the cancer cells and tissue look under a microscope when compared to healthy cells. Cancer cells that look and organize most like healthy cells and tissue are low grade tumours. Doctors describe these cancers as being well differentiated. Lower grade cancers are typically less aggressive and have a better prognosis.
Some cancers have their own system for grading tumours. Many others use a standard 1-4 grading scale.
Grade-1: tumour cells and tissue looks most like healthy cells and tissue. These are called well-differentiated tumours and are considered low grade.
Grade-2: the cells and tissue are somewhat abnormal and are called moderately differentiated. These are intermediate grade tumours.
Grade-3: cancer cells and tissue look very abnormal. These cancers are considered poorly differentiated. Since they no longer have an architectural structure or pattern. Grade 3 tumours are considered high grade.
Grade-4: these undifferentiated cancers have the most abnormal looking cells. These are the highest grade and typically grow and spread faster than lower grade tumours.
b.Regarding Stage of cancer-
While a grade describers the appearance of cancer cells and tissue, a cancer's stage explains how large the primary tumour is and how far the cancer has spread in the patient's body.
There are several different staging system. Many of these have been created for specific kinds of cancers. Others can be used to describe several types of cancer.
One common system that many people are aware of puts cancer on a scale of 0 to IV.
Stage 0 is for abnormal cells that haven't spread and are not considered cancer, though they could become cancerous in the future. This stage is also called "in-situ."
Stage 1 through Stage III are for cancers that haven't spread beyond the primary tumour site or have only spread to nearby tissue. The higher the stage number, the larger the tumour and the more it has spread.
Stage IV cancer has spread to distant areas of the body.
To sum up the matter, the stage of a cancer describes the size of a tumour and how far it has spread from where it originated. Whereas, the grade of cancer explains the appearance of the cancerous cells.
Regarding grading and staging, the Enquiry Committee observed that one was based upon clinical assessment and the other was based upon histological examination made by pathologist. One might not be correlated with the other. From the above detailed analysis, we agree with the views of the enquiry committee and regarding staging and grading of the cancer, we find no gross negligence and fault on the part of the doctors. But whether there is any gross negligence or deficiency in service on the part of the doctors or not during the post operative period that should be decided very carefully.
Be it mentioned here that the complainant herein did not pray for any independent medical expert through the Commission and it is true that we are not the persons of medical personality but by applying the principle of Res Ipsa loquitur (the thing speaks for itself) we can observe some discrepancies at the time of post operative situation/period which are analysed below:-
Dr. S. Mukherjee attended the patient at 5 PM on 10/12/2012 clearly enshrined in the written version. But no such reflection in the treatment and died sheet dated 10/12/2012 or there is no such supporting document in the case record regarding this matter.
The treatment and diet sheet dated 11/12/2012 is carefully perused wherefrom it appears that the time 2.30 AM was written but there was a pen through/cut mark upon the said time creating a doubt and ambiguity. In this respect it is our view that the treatment sheet should be clear, authentic and proper and in absence of these criteria, there is no hesitation to hold that the said document is created, manufactured and afterthought in order to fill up the lacuna regarding want of proper care of the patient during post operative period.
We have perused the record of death. Dr. Sabyasachi Barik issued the same. The time of death was written 7.25 A.M and at that place overwriting was there. Subsequently the cause of death was written CARDIORESPIRATORY FAILURE. Thereafter, it is found that there was a clear pen through upon the same and further SUDDEN CARDIAC DEATH was written as cause of death. It is very unfortunate that there are some apparent irregularities in the said document. It is very common thing that when any wrong word or statement is written it should be the duty of the concerned officer, after pen through upon the said word or statement, to endorse his/her initial with date. But there is no such initial with date also causing a clear doubt and ambiguity in our mind. Under such situation, we further opine that the document should be clear, fair and authentic.
The pathology reports - histopathology dated 20/12/2012 clearly reveals that histology of tumour of right lower jaw: Moderately differentiated squamous cell carcinoma GRADE - II. But upon which document the doctors relied upon that the patient was suffering from cancer stage - IV. In this respect there is no such supporting document submitted by the ops/doctors.
Why the post mortem of the patient was not done. In written version the ops took the plea that the complainant herself did not agree for post mortem and preferred to take away the body of Swapan Mondal since deceased along with death certificate. We have not seen any written prayer/consent regarding delivery of the body of Swapan Mondal without post mortem from the end of the complainant in the case record. Under such circumstances, a doubt is also created in our mind further and it is our firm view that if the post mortem of the patient was done, the actual cause of death of the patient would be come out with a crystal clear medical opinion. But due to carelessness and negligence on the part of ops/doctors we failed to know the actual cause of death of the patient.
In examination of chief, Dr. Subrata Mukherjee, Prof and the then Dept of ENT, MCH, Kolkata, adduced his evidence and stated that Dr. Niladri Chakraborty, Junior Resident (PGT that means Post Graduate Trainee), Department of ENT, MCH, was on duty as ON-CALL doctor during the night of 10/12/2012 as per duty roster. Moreover by filing written version the opposite parties doctors clearly submitted that it was a major operation under general anaesthesia. Under such situation it is our question that for what reason Dr. Mukherjee, a senior most Doctor entrusted all responsibilities upon his junior (PGT) Dr. Niladri Chakraborty. When the operation was very major, it should be the duty of Dr. Mukherjee to entrust any senior most doctor instead of junior in order to look after the patient at night of 10/12/2012 during the post operative situation. But no proper post operative care was taken by the doctors in this respect causing clear gross negligence and deficiency in service on the part of them. At this stage we can rely upon a decision of M/S - SPRING MEADOWS HOSPITAL AND ANOTHER VS HARJOL AHLUWALIA THROUGH K.S.AHLUWALIA AND ANOTHER wherein Hon'ble Supreme Court held that gross medical mistake will always result in a finding of negligence. ..................and in some situations even the principle of Res ipsa loquitur can be applied. Even delegation of responsibility to another may amount to negligence in certain circumstances. A consultant could be negligent where he delegates the responsibility to his junior with the knowledge that the junior was incapable of performing of his duties properly.
Even at the time of final hearing neither the doctors nor their ld counsel appeared to conduct the final hearing. As per Regulation 2005 of the C.P. Act, 1986 , the ld counsel did not file any Brief Notes of Argument and at that situation there is no hesitation to state that where a party is represented by a counsel, it shall be mandatory to file a brief note of argument two days before the matter is fixed for arguments. It is very unfortunate that the ld counsel for the opposite-parties did not comply the said provision which goes against the doctors.
In view of the above we hold that there is a clear gross negligence and deficiency in service on the part of doctors in respect of above points/issues and both the doctors are liable jointly and severally due to act done by them during post operative situation/period of the patient since deceased. The complainant has proved her case successfully and as such the consumer case is allowed on contest against the ops/doctors.
Hence, ORDERD The ops/doctors are jointly and severally liable for the act done by them. The ops/doctors are hereby directed to pay compensation of Rs. 10,00,000/- ten lakh only to the complainant within 30 days positively from the date of this order in default the whole awarded amount shall carry interest @ 8% pa till full realisation.
The matter is conducted by the lawyer appointed from legal aid panel and as such no litigation cost is allowed against the ops/doctors.
In case of non-compliance of order from the end of ops/doctors, the complainant is at liberty to put the order in execution in order to get proper relief as prayed for.
Accordingly, the instant consumer case stands disposed of as per above observations.
Note accordingly. [HON'BLE MR. JUSTICE MANOJIT MANDAL] PRESIDENT [HON'BLE MRS. SAMIKSHA BHATTACHARYA] MEMBER [HON'BLE MR. SHYAMAL KUMAR GHOSH] MEMBER