State Consumer Disputes Redressal Commission
Smt. Reba Pramanik vs Dr. Om Tantia on 4 September, 2009
State Consumer Disputes Redressal Commission State Consumer Disputes Redressal Commission West Bengal BHABANI BHAVAN (GROUND FLOOR) 31, BELVEDERE ROAD, ALIPORE KOLKATA 700 027 S.C. CASE NO. 14/0/04 DATE OF FILING: 26.7.2004 DATE OF FINAL ORDER: 04.09.2009 PETITIONER 1) Smt. Reba Pramanik W/o Late Pralay Bikash Pramanik 2) Smt. Pallabi Pramanik 3) Miss. Raneeta Pramanik 54/1, Surya Sen Street Kolkata 700 009 OPPOSITE PARTIES 1) Dr. Om Tantia Of Jeewan Satya DD-6, Sector-I, Salt Lake City Kolkata 700 064 2) Institute of Laparoscopic Surgery & Research Centre Jeewan Satya DD-6, Sector-I, Salt Lake City Kolkata 700 064 BEFORE : HONBLE JUSTICE MR. A. CHAKRABARTI, PRESIDENT MEMBER : MRS. S. MAJUMDER FOR THE PETITIONER : Mr. S. Ghosh, Advocate FOR THE OPPOSITE PARTIES : Mr. A.K. Sil, Advocate : O R D E R :
HONBLE JUSTICE MR. A. CHAKRABARTI, PRESIDENT This complaint was filed by the complainants being the wife and the daughters of one Pralay Bikash Pramanik, asking for compensation of Rs.30 lacs in view of death of the said Pralay Bikash Pramanik by reason of negligence in medical treatment by OPs 1 & 2. Having a history of ailments for last ten years, the patient became anxious regarding his recurrent attacks of pain in abdomen. For second opinion the patient was taken to the OP1.
On 08.3.2003 at 3 P.M. upon a prior appointment the OP1 on perusal of all medical papers of the patient and knowing the case history, informed that the patient was in a critical condition and he rebuked the patient party for nurturing the Gallbladder stones for so many days. On the advice of the OP1 and on his assurance the patient was admitted in OP2 being the Nursing Home of OP1. The OP1 prescribed some investigations including ERCP with sphincterotomy. On 12.3.2003 the patient was brought to EKO Endoscopy Centre for ERCP with sphincterotomy at 1 P.M. and after ERCP the patient was brought back. In the afternoon on 12.3.03 transfusion of saline was started and at about 5:30 P.M. one Matron of the Institute OP2 told the brother of the patient that the patient would be operated upon at 9 A.M. on 13.3.03. The operation was decided by OP1 on the basis of mere telephonic talk with Dr. Goenka without meeting the family members of the patient. The operation was scheduled to be held at 9 A.M. and the report of ERCP was handed over without plates at 3 P.M. which were reached to the OP2 and the time of operation had been shifted to the evening on the same day. The operation actually took 3 hrs. The patient party thereafter could know that the patient had been operated at laparoscopic process instead of opening the abdomen. On 18.3.2003 the OP2 told that the patient would be discharged on 20.3.03 at 11 A.M. On 19.3.03 at 10 P.M. OP1 conveyed over telephone that the blood pressure of the patient was going down heavily and the patient party should attend the patient.
They reached at 11:30 P.M. and found that the patient was suffering from respiratory distress and was lying in special bed surrounding by a number of medical instruments and medicines and also came to know that OP1 had left the Nursing Home even without providing any medical specialist to observe the deteriorating the patient. The lady R.M.O, one Nurse and few Class-IV staff were looking at the patient party helplessly throughout the night. On 20.3.03 OP1 entered the Institute at 8 A.M. and examined the patient and admitted that the condition of the patient was not hopeful. On a requisition for blood the patient party procured the blood and deposited the same. Replenishment of fluid for correction of hypovolaemia beroic dose of vaso-constrictor agents was used for considerable period of time resulting in cessation of production of urine and immediate rise of blood urea and serum creatinine as shown in the investigation reports on the next day. At last after repeated requests to exclude the situation of fluid overload OP1 tried to introduce intravenous catheter knowing fully well that there was no instrument for CVP measurement through the femoral vein with gushes of blood coming out. Ultimately it had been introduced through jugular vein with much effort.
Thereafter OP1 took the decision to transfer the case to Apollo Hospital with the excuse of non-availability of ventilator for continuation of the life of the patient artificially. Just after admission in Apollo Hospital the attending Physician told the patient party that the patient was in a grievous condition and is respiration had almost stopped.
The patient was placed in a ventilator immediately. The patient was placed in the ITU of the Apollo Hospital and a number of doctors began to move in a hurry. On 21.3.03 at 6:30 A.M. Dr. P. Roy informed over telephone from Apollo Hospital that the patients condition was fast deteriorating and sought consent of the patient for opening the abdomen of the patient.
The patient was taken to the operation theatre. The patient expired on that day.
After the written version was filed by the OPs and the evidence of the respective parties were adduced followed by questionnaires and replies and brief notes of arguments, the matter was taken up for hearing.
Mr. S. Ghosh, the Ld. Advocate for the Complainant fully relied on the brief notes of arguments filed already on behalf of the complainants and preferred not to advance any separate oral argument. From the written argument it appears the first contention of the complainant is that the patient party was misled by the OP1 as they were given to understand that all emergency facilities were available at OP2 in case of any emergency as OP2 is a super speciality clinic particularly in the field of Laparoscopic surgery. In this respect the OPs have contended that the fact that OP2 had no ICCU facility was made known to the patient party which would appear from the averment made in the last sentence of paragraph 5 of the complaint and also from the answers given by Shri Amit Bikash Pramanik, witness of the complainant, to question no.11 and 12 put to him in cross examination as he had admitted that enquiry about facilities in OP2 was not made prior to surgery. It is further contended by the OPs that hospitals, nursing homes and clinics are established by getting registration and issuing licence from the appropriate authority under West Bengal Clinical Establishment Act 1950 and the Rules framed thereunder. The OP2 conformed by requirements of the said statute and has been issued with a licence from the appropriate authority, there being no violation of the said licence conditions, such allegation cannot be maintained against the OPs.
Upon consideration of the aforesaid contentions we find that the complainants in the complaint as also in their evidence made out a case of OPs misleading the complainants about existence of emergency facilities in response to the enquiries made by the complainant. The last sentence in paragraph 5 of complaint the pleading is on availability of emergency facilities though ICU was not there.
Similarly to Questions No.11 & 12 the witness Amit Bikash Pramanik stated that the patient made the enquiries.
Therefore the contentions of OPs in written argument, relied on by the Ld. Advocate, have no strength.
The second contention of the complainant in their written argument filed, is that the surgery was undertaken by the OP1 in the afternoon of 13.3.03 though no report of ERCP or plate thereof nor any investigation report were available with OP1. It is further case of the complainant in this connection that such surgery was done by OP1 in a hurry without waiting for the reports of investigations.
In this respect the contention of the OPs is that the decision to hold surgery immediately after ERCP was taken initially by the OP1 as would appear from his prescription dated 08.3.03 at Annexure-A to the written objection. It is also stated that even the prescription of Dr. S.K. Biswas dated 11.2.03 also shows advice for ERCP followed by cholecystectomy. It is further contended by the OPs that the OP1 talked to Dr. Goenka who performed ERCP and, therefore, obtaining verbal report as regards removal of the stones, the surgery was undertaken by the OP1 and there is no irregularity or illegality in holding such surgery upon such report verbally taken.
Upon consideration of the aforesaid contentions of the respective parties we find that there is no denial on the part of the complainant that OP1 talked to Dr. Goenka who performed ERCP. There is no allegation also that performance of such surgery upon obtaining report of ERCP verbally is anyway damaging for the patient.
Dr. Goenka also has been examined as witness and from him also the complainant has not obtained any statement denying giving such information by Dr. Goenka to OP1 as regards the result of ERCP.
In above view of the findings we do not hold that there was any irregularity or deficiency in service or unfair trade practice on the part of the OP1 in performing the surgery before obtaining the report of ERCP.
The third contention of the complainant is that patient party came to know that surgery was performed laparoscopically only after surgery and they were under impression that surgery would be by opening the abdomen.
In this respect the OPs have contended that prescription of OP1 dated 08.3.03 recorded advice of ERCP followed by lapachoely which means laparoscopic cholecystectomy. Moreover, the Consent Form being the Annexure-B to the written objection shows that the patient consented for laparoscopic procedure. This Consent Form also bears the signature of Amit being the brother of the patient. Dr. Tapas Kr. Ghosh, a family friend of the patient was also present during surgery conducted laparoscopically and, therefore, the allegation of the complainant of late knowledge of laparoscopic procedure is not maintainable.
Considering the above contentions we also find that the documents referred to by the OP being the prescription and the Consent Form support the contentions of the OP. Complainant is unable to prove anything contradictory to the same. Therefore the said allegation of the complainant also is not acceptable.
The next contention of the complainant is that OPs undertook the responsibility of performing surgery of a patient having long history of ailments though there is no emergency facility to meet any emergency following such surgery.
In this respect the contention of the OPs is that non-availability of ICCU facilities in OP2 was known to the complainant and the patient party as appears from paragraph 5 of the complaint as also evidence of Amit Bikash Pramanik. These contentions of the OPs have been already held incorrect. The contention of the OPs in respect of issuance of licence also apparently is correct. But the same does not absolve the OPs from the responsibility of undertaking any surgery and that too of a patient having long history of ailments without making proper arrangement for meeting any emergency situation. It is not expected for the patient party to know what arrangement the OPs would make in case of emergency. The grant of licence under a statute also does not absolve the OPs from the responsibility of providing for emergency facilities. The OP1 being the expert in the subject has to take a decision of undertaking a surgery keeping a provision for meeting emergency.
It is not disputed that emergencies do crop up after surgeries and, therefore, there is no reason for undertaking responsibility of surgery by a qualified doctor in a clinic having no infrastructure for meeting emergencies. It is apparent that even OPs did not act immediately when emergency arose. Records show clearly that emergency arose on 19.3.03 and the patient was kept in the clinic without having any emergency facilities till 21.3.03 and the transfer recommended to a proper establishment having proper infrastructure very late.
Therefore this, in our opinion, is a deficiency in service and an instance of unfair trade practice.
As regards allegation of wrong treatment and negligence in treatment, the complainants were to prove the same. The doctors examined on behalf of the complainant were found to be not experts in the subject. Both Dr. Debdas Chakraborty and Dr. S.K. Das have deposed in the proceeding. Dr. Chakraborty stated that he never performed any Laparoscopic Cholecystectomy.
He has claimed neither any special qualification or experience in the subject. Dr. S.K. Das also admitted that he is a general medical practitioner and has never ventured to experiment in surgery. He claimed his experience in such surgery once or twice as assistant.
Therefore none of them can be treated as expert in the subject.
In this regard reference may be made to the case of Martin F. DSouza-Vs-Mohd. Ishfaq reported in 2009(1) CPJ 32 decided by the Apex Court and particularly to paragraph 117 thereof recognizing opinion of a competent doctor or committee of doctors, specialized in the field related to which the medical negligence is attributed. In the present case in hand the said two doctors themselves admitted that they do not have expertise in the treatment/surgery of the disease which the patient concerned was suffering from.
On behalf of the complainant though two doctors have been examined, as indicated hereinabove, they being not experts in the subject, their evidence will not help this Commission to conclude on the allegation of negligence in the treatment of the patient concerned. On behalf of the complainant medical literatures have also been referred to being Maingots Abdominal Operations, 11th Edition, Blumgarts Text Book of hepatobiliary and surgery of the Liver, Biliary Tract and Pancreas edited by Leslie H. Blumgart, 4th Edition.
But on perusal of the said medical literatures though various views on the concerned subjects are available but we do not find anything conclusive on which it can be held conclusively by this Commission that there was negligence in the matter of treatment of the complainant and open surgery of the abdomen was the only treatment available and laparoscopic cholecystectomy, was performed contrary to prevailing practice in the medical world. In the circumstances these literatures cited by the complainant do not help us in recording a conclusion in respect of the alleged negligence of OPs in the matter of treatment of the patient concerned.
On behalf of the complainant it is argued that West Bengal Medical Council has already come to a finding against the OPs and this contention was made relying on the letter No.731-C/12-2004 dated 22.6.09 a copy whereof has been enclosed to the brief notes of argument filed on behalf of the complainants. But on perusal of the said document it does not appear that the same indicates any final finding by the West Bengal Medical Council. It appears that the said letter was sent only with two annexures one being a copy of deposition and the other being a copy of extract of experts opinion.
Therefore, this document also cannot be relied on there being no final finding produced.
On behalf of OPs reliance was placed on various cases. The first such case is of Bihar State Housing Board-Vs-Prio Ranjan Roy reported in 1997(6) SCC 487 on the question of assessment of damages before awarding the same.
The next case cited is of Lata Wadhwa-Vs-State of Bihar reported in 2001(8) SCC 197 also on the quantum of compensation and its assessment. The next citation was of Malay Kumar Ganguly-Vs-Dr. Sukumar Mukherjee being Criminal Appeals Nos.1191-1194 of 2005 and Civil Appeal No.1727 of 2007 decided by the Apex Court on 07.8.2009 as regards factors which constitute negligence.
Next cases relied on were of M/s. Sukhwinder Pal Bipan Kumar-Vs-State of Punjab reported in 1982(1) SCC 31 of Smt. Savithramma-Vs-Cecil Naronha reported in 1988 (Supp) SCC 655 on the requirement and validity of an affidavit. The next case relied on is Ravneet Singh Bagga-Vs-KLM Royal Dutch Airlines reported in 2000(1) SCC 66 deciding what is deficiency in service and the burden lies on whom to prove such deficiency. The next is of Kamla Bai Pandey-V-Dr. P.C. Dwivedi reported in 2009(1) CPJ 263 on the onus of proof on complainant relying on the judgment in the case of Jacob Mathew-Vs-State of Punjab reported in 2005(6) SCC 1. Reliance was placed on the case of Malka Tarannum-Vs-Dr. C.P. Gupta reported in 2009(3) CPJ 49 on medical negligence in the facts of the said case. The next case cited was of Vinitha Ashok-Vs-Lakshmi Hospital reported in 2001(8) SCC 731 also on what makes out a case of medical negligence.
The other case cited is of Dr. Partha Pratim Hazari-Vs-Ajoy Kumar Ghosh reported in 2001(3) CPR 212 decided by the State Commission.
On behalf of the OPs also medical literatures have been relied on from which also we do not find that a conclusion can be reached holding that treatment extended by OPs to the patient was perfectly alright and there was no other alternative treatment available which could not be applied.
In above view of the findings on facts and law it appears that the OP1 in undertaking the treatment to the patient acted with negligence and deficiency in service as surgery was undertaken in OP2 having no infrastructure to meet any emergency and no case has been made out by the OPs to show that there was no possibility of emergency cropping up after the surgery performed on the patient having a long history of ailments.
In the circumstances the complaint is allowed and the OPs are directed to pay compensation to the complainants of Rs.1,00,000/-, litigation cost of Rs.10,000/- and such amounts are to be paid within a period of 60 days from the date of this order and in case of default by OPs the complainant will be entitled to recover the same in accordance with law along with interest @ 9% per annum for the period of default.
(S. Majumder) (Justice A. Chakrabarti) MEMBER(L) PRESIDENT