National Consumer Disputes Redressal
Dr. Durgadas Bhattacharyya vs B.M. Birla Heart Research Centre & Ors. on 3 April, 2023
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 1500 OF 2017 (Against the Order dated 20/06/2017 in Complaint No. 70/2011 of the State Commission West Bengal) 1. DR. DURGADAS BHATTACHARYYA S/O LATE DEB NARAYAN BHATTACHARYA
RESIDING AT 6,
KHAN MOHAMMAD ROAD,
KOLKATA-700061 WEST BENGAL 2. - - 3. - - ...........Appellant(s) Versus 1. B.M. BIRLA HEART RESEARCH CENTRE & ORS. THROUGH MEDICAL SUPERINTENDENT,
1/1,NATIONAL LIBRARY
AVENUE KOLKATA-700027 WEST BENGAL 2. D.R T.K.GHOSE,
THE DIRECTOR OF LABORATORY SERVICE, B.M.BIRLA HEART RESEARCH CENTRE, 1/1,NATIONAL LIBRARY AVENUE, KOLKATA-700027, WEST BENGAL
3. DR.MRIDULACHAKRABORTI, THE MEDICAL OFFICER, BLOOD BANK,B.M.BIRLA HEART RESEARCH CENTER,1/1,NATIONAL LIBRARY AVENUE, KOLKTA-700027, WEST BENGAL
4. DR.PRATIK DAS, NEPHROLOGIST,
RSV NURSING HOME AND SPECIALITY DIAGNOSTIC CENTER,40, DESHPRAN SASHMAL ROAD,
KOLKATA-700033,
WEST BENGAL
5. MR.GOUTAM PUROKAYASTHA,
THE DIRECTOR EQBALPUR NURSING HOME,9,IBRAHIM ROAD,
KOLKATA-700033
WEST BENGAL
...........Respondent(s) FIRST APPEAL NO. 1651 OF 2017 (Against the Order dated 20/06/2017 in Complaint No. 70/2011 of the State Commission West Bengal) 1. B.M. BIRLA HEART RESEARCH CENTRE 1/1, NATIONAL LIBRARY CENTRE. KOLKATA-700027 ...........Appellant(s) Versus 1. DR. DURGADAS BHATTACHARYYA & 4 ORS. S/O. LATE. DEBNARAYAN BHATTACHARYA.
6, KHAN MOHAMMAD ROAD. KOLKATA-700061. WEST BENGAL. 2. DR. T.K. GHOSH, THE DIRECTOR OF LABORATORY SERVICES,. B.M. BIRLA HEART RESEARCH CENTRE, 1/1, NATIONAL LIBRARY AVENUE. KOLKATA-700027 WST BENGAL. 3. DR. MRIDULA CHARABORTI, THE MEDICAL OFFICER, BLOOD BANK. B.M. BIRLA HEART RESEARCH CENTRE, 1/1, NATIONAL LIBRARY AVENUE. KOLKATA-700027 WEST BENGAL. 4. DR. PRATIK DAS, NEPHROLOGIST, RSV NURSING HOME AND SPECIALITY DIAGNOSTIC CENTRE. 40, DESHAPRAN SASMAL ROAD. KOLKATA-700033 WEST BENGAL. 5. MR. GAUTAM PURKAYASTHA, THE DIRECTOR, EKBALPORE NURSING HOME. 9,IBRAHIM ROAD. KOLKATA-700023 WST BENGAL. ...........Respondent(s)
BEFORE: HON'BLE DR. S.M. KANTIKAR,PRESIDING MEMBER
For the Appellant : For the Respondent :
Dated : 03 Apr 2023 ORDER
( FA/1500/2017)
For Appellant(s)
:
Dr. Kunal Saha, AR
Dr. Durgadas Bhattacharyya - in person
For R- 1, 2, 4 & 5
:
Mr. Rabin Majumder, Advocate
Mr. Joydeep Mukherjee, Advocate
For R-3
:
NEMO
( FA/1651/2017)
For Appellant(s) &
R- 2, 4 & 5
:
Mr. Rabin Majumder, Advocate
Mr. Joydeep Mukherjee, Advocate
For R-1
:
Dr. Kunal Saha, AR
Dr. Durgadas Bhattacharyya - in person
For R- 3
:
NEMO
Pronounced on: 03rd April 2023
ORDER
1. This common Order shall decide the two Appeals arise against the order of State Consumer Disputes Redressal Commission, West Bengal (in short, the 'State Commission') in CC No. 70 of 2011, whereby the State Commission partly allowed the Complaint.
2. The brief facts of the case are that on 11.10.2009, as the Complainant Dr. Durgadas Bhattacharyya admitted his father (for short the 'patient'), 77 years old, under his care in B. M. Birla Heart Research Centre (OP-1). One unit of blood was transfused on 14.10.2009, the kidney function tests (KFT) revealed critically high values of blood Urea and Serum Creatinine, therefore the attending Nephrologist, Dr. Gautam Majumdar advised urgent dialysis. The dialysis could not be performed in OP-1 hospital because of non-availability of dialysis technician. Therefore, the Complainant got his father transferred to RVS Nursing Home, Kolkata for dialysis. It was alleged that on 14.10.2009 at 6.00 pm, on unit of 'packed red blood cell (PRBCs) was requested for issue from the OP No. 1 - Hospital, but the Medical officer at Blood Bank OP-1 refused to issue the blood though, it was ready and kept reserved after cross matching and the payment was already made. Due to non-availability of PRBC, the patient suffered from hypo-tension and he subsequently progressed into coma. The patient was shifted to Ekbalpur Nursing, but he expired on 15.10.2009. The cause of death was given as Pneumonia with multi-organ failure in end stage kidney and Cardio-respiratory failure. Being aggrieved due to negligence act of OP-1 hospital and its blood bank, the Complaint was filed before the State Commission at Kolkata.
3. The OPs in their replies denied all allegations. It was submitted that the hospital is for cardiac patients , therefore facilities for dialysis are limited and on that particular day the dialysis technician was absent, therefore the Complainant himself as a doctor shifted her father to other hospital.
4. The State Commission partly allowed the complaint with following observation:
"........The BNA, as filed by the OP No. 1-Hospital, as available on records, indicates that the OP No. 1- Hospital even being a Heart-Care Centre had arrangement for Haemo-Dialysis by its own machine and even has the facility for 'Continuous Renal Replacement Therapy (CRRT)' which is done in case of necessity of the patient. Despite there being arrangement for Haemo[1]Dialysis in the OP No. I-Hospital, the Haemo-Dialysis of the patient in the case on hand was not arranged for by the OP No. l-Hospital and in such failure on the part of the OP No. 1-Hospital in arranging Haemo-Dialysis at the time of need, points to the breach of duty the OP No. 1-Hospital owed to the patient from the moment the OP No. l-Hospital allowed the admission of the patient concerned and such breach of duty being one of the constituents of medical negligence as well as deficiency in service as held by the Hon'ble Supreme Court in Jacob Mathew Vs. State of Punjab & Anr., reported in (2005) 6 see 1, the OP No. 1-Hospital cannot shake off its liability for deficiency in service "
5. Being aggrieved both the sides have filed two first appeals.
6. Heard the arguments from the learned counsel on both the sides, perused the record and the impugned order.
7. The crux of the case is whether the non-issuance of pre cross matched blood (PRBCs) for dialysis was negligece of OP and whether it was the proximate cause of death of the instant patient.
8. The contention of complainant that the OP-1 hospital though a Cardiac Hospital having dialysis machine, the doctor failed to perform dialysis. The hospital even failed to provide a dialysis technician. Therefore for dialysis, Dr. Goutam Majumdar, attending Nephrologist referred the patient to CMRl Hospital. The blood unit was already kept ready for transfusion, but the OP-1 denied to issue the unit. It was deficiency in service of the blood bank medical officer at OP-1.
9. He relied upon the clause 'K' of the 'Standards for Blood Bank's Blood Transfusion Services' as prescribed by National AIDS Control Organization (NACO). The same clause mandates the procedure to be followed, when the urgent need of blood arises. Accordingly, the blood or blood components should be issued before completion of routine cross matching in case of life threatening emergency on receipt of return request of the treating physician, stating about the condition of the patient, which requires urgent blood with his signature. The record of such request shall be retained for 5 years. The relevant clause is reproduced as below:
K-5.0 URGENT REQUIREMENT OF BLOOD K-5.1 Blood or blood components should be issued before completion of routine cross matching tests in cases where delay in providing blood may jeopardize the patient's life, on receipt of a signed written request National AIDS Control Organisation of the treating physician stating that the clinical condition of the patient requires urgent release of blood before completing ABO and Rh(D) tests and compatibility testing. Records of such requests should be retained for 5 years as per the relevant standards.
10. The learned Counsel for OP Nos. 1, 2 & 3 submits that the Complainant himself being a doctor, worked in the OP-1 was aware of facilities available at OP-1. It was not a multi-specialty hospital and arrangement for regular dialysis was not available. He further submitted that the Complainant did not bring the blood requisition form in the prescribed format as under the West Bengal State AIDS Prevention and Control Society. The West Bengal Medical Council (WBMC) vide Order dated 16.12.2014 held that there was no deficiency on the part of the Director and the Medical Officer (OP-3) of the OP-1 Hospital, for not releasing the blood without requisition in the proper Form. Also the MCI held that there was no violation of ethics from OP-2 and 3.
11. I have carefully perused few documents inter alia, orders of the State Commission and the WBMC and MCI.
12. It is pertinent to note that the requisition letter for blood was not in a prescribed format as per NACO guidelines. It was a paper mentioned as 'the request of blood'. It is reproduced as below:
14.10.2009, 6 pm To The MO Blood Bank, BHR Dear Doctor, Please deliver the reserved packed cell for this patient against OP ID 128313, Gr. A+ve (pos).
Pt. is very *illegible* and need urgent blood transfusion.
Thus, in my view, this was not a requisition as per the guidelines of NACO.
13. The Order of Director of Health Services, West Bengal dated 18.07.2012 is reproduced as below:
The complaint made by Dr Durgadas Bhattacharya regarding non-issuance of Blood from B. M. Birla Heart Research Centre to his father Mr Debnarayan Bhattacharya who had been admitted at RSV Nursing Home on 14/10/2009, has been enquired from this end.
As proper requisition for blood with samples for cross matching etc was not sent from RSV Hospital on 14.10.09, the blood could not be issued by the blood bank of B. M. Birla Heart Research Centre on that day. However it was issued on next day morning at 7.15 am.
Thus there was no fault on the part of B. M. Birla Heart Research Centre and the doctors on duty in the Blood Bank.
14. The WBMC investigated the case in detail and the Ethics Committee of MCI held that Dr. Mridula Chakraborty of B. M. Birla Heart Research Centre and Dr. T. K. Ghosh have not violated the Code of Medical Ethics in any way. It held that there was no negligence on the part of OP-1 or its blood bank for not issuing the PRBC.
15. As per the Order, dated 06.10.2005, of the West Bengal AIDS Control and Prevention Society, the guidelines while issuing blood is as below:
"all the Hospitals / Nursing homes/Clinic that from 1st January 2006, no blood will be supplied from Blood Banks without proper requisition forms as designed by the West Bengal State AIDS Prevention and Control Society."
16. Based on the discussion above, the blood bank has strictly followed the guidelines prescribed by NACO. Though, admittedly the blood was already cross matched in the blood bank of OP-1, and kept reserved for the instant patient. However, if once the patient got shifted to RSV hospital, it was mandatory to send fresh requisition form in the prescribed format from RSV Hospital. Thus, fresh blood samples of patient were needed for cross matching before issue of blood.
17. The patient was suffering from multiple problems like DM, IHD, CKD and Severe Anemia. During treatment he suffered cardiac arrest which was treated appropriately. In my view, the cause of death was not due to non-performance of dialysis. The Complainant himself was a treating physician, who had worked in OP-1and was aware of facilities and limitations at OP-1. Therefore, he unfortunately raising such issues and filing consumer complaint appears to be against the professional ethics. The State Commission erred while holding the OP-1 hospital for deficiency in service.
18. Based on the afore discussion, I do not find negligence from the OPs. The impugned Order of State Commission is set aside. The F.A. No. 1500 of 2017 filed by the Complainant is dismissed and the F.A. No. 1651 filed by the B.M. Birla Heart Research Centre is allowed.
19. Consequently, the Consumer Complaint No. 70 of 2011 filed before the State Commission is dismissed.
20. Parties to bear their own costs.
...................... DR. S.M. KANTIKAR PRESIDING MEMBER