State Consumer Disputes Redressal Commission
Sri Sankar Kumar Mitra vs Dr. Indira Jha on 2 June, 2014
DRAFT STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, MIRZA GHALIB STREET KOLKATA 700 087 S.C. CASE NO.CC/45/2009 DATE OF FILING:19/06/09 DATE OF FINAL ORDER:02/06/14 COMPLAINANTS : 1) Sri Sankar Kumar Mitra S/o-Late Nalinakshya Mitra 2) Sri Manas Mitra S/o-Sankar Kumar Mitra Both residing at 39/1, B. Road, Bamungachi P.O. Liluah, District-Howrah OPPOSITE PARTIES : 1) Dr. Indira Jha Senior Divisional Medical Officer B.R. Singh Railway Hospital Sealdah, Kolkata 2) Dr. Subrata Basu (Ortho) Senior Divisional Medical Officer Orthopaedic Railway Hospital Howrah 3) Dr. Sarbani Sengupta Senior Divisional Medical Officer B.R. Singh Railway Hospital Sealdah, Kolkata 4) Dr. Sarmistha Mukherjee Senior Divisional Medical Officer B.R. Singh Railway Hospital Sealdah, Kolkata 5) Dr. Angira Dasgupta Additional Divisional Medical Officer B.R. Singh Railway Hospital Sealdah, Kolkata 6) Dr. Chandan Pathak (Ortho) Senior Divisional Medical Officer ( Howrah) Orthopaedic Railway Hospital Howrah 7) Dr. Aloke Mazumdar Senior Divisional Medical Officer(Cardio) B.R. Singh Railway Hospital Sealdah, Kolkata 8) Dr. B. Ghosh Senior Divisional Medical Officer (Neuro) B.R. Singh Railway Hospital Sealdah, Kolkata 9) Dr. G. Ray Divisional Medical Officer(Gastro Entrologist) B.R. Singh Railway Hospital Sealdah, Kolkata 10) Dr. S. Ghosal Medical Director B.R. Singh Railway Hospital Sealdah, Kolkata 11) The Chief Medical Director New K. G. Eastern Railway (13th floor), Kolkata BEFORE : HONBLE JUSTICE : Mr. Kalidas Mukherjee President HONBLE MEMBER : Mrs. Mridula Roy HONBLE MEMBER : Mr. Tarapada Gangopadhyay FOR THE COMPLAINANTS : Mr. Raghunath Chakraborty Ld. Advocate Mr. Devendra Kr. Ojha Ld. Advocate FOR THE OPPOSITE PARTIES : Mr. Subhendra Mohan Roy Ld. Advocate Mr. Avik Kr. Das Ld. Advocate Ms. Koyeli Mukhopadhyay Ld. Advocate Mr. N. R. Mukherjee Ld. Advocate : O R D E R :
HONBLE JUSTICE MR. KALIDAS MUKHERJEE, PRESIDENT This is a complaint filed by the Complainants alleging that the Complainant Nos.1 and 2 are the husband and son respectively of the patient Shanti Mitra, since deceased. She was treated at B. R. Singh Hospital under Respondent Nos.1 to 10. The patient had a history of certain neurological disorder and for the treatment she was taken to Christian Medical College & Hospital, Vellore, Tamil Nadu by the Complainants and on 15/09/2000 she was examined by Dr. T.P. Joseph (Consultant Neurologist). After investigations the doctor diagnosed that the patient had been suffering from Temporal Lobe Epilepsy and advised her Tegretol 200mg and Osteocalcium. Since the Complainants reside at Howrah, West Bengal it was not feasible for them to visit Christian Medical College & Hospital, Vellore, Tamil Nadu everytime for the treatment of said Shanti Mitra, since deceased. The Complainants decided to get the patient treated by an eminent doctor, namely, Dr. Sital Ghosh. The patient was under the treatment of Dr. Ghosh from 22/11/01 till June 2006. From the beginning of 2006 the condition of the patient started to deteriorate and the Complainant No.1 decided to take voluntary retirement from service on 31/05/06. At the time of retirement the Complainant No.1 opted for Retired Railway Employees Liberalised Health Scheme for availing of medical facilities at the nominated Railway Hospitals and Health Units. The Complainant, accordingly, as per rules and regulation of the Indian Railways paid a sum of Rs.8,438/- for availing of the said medical services and facilities under the said RELH Scheme and the Railway Authority issued RELHS card being no.LHS/HOW/5305 on 21/06/06. Suddenly on 21/06/06 the condition of the patient deteriorated and she was severely attacked with seizure disorder and the Complainant no.1 being the holder of the RELHS card took her to the B.R. Singh Hospital and she was admitted in the female ward under Dr. Indira Jha. The concerned doctor diagnosed and treated the patient for seizure disorder, chronic hypertension, chronic liver disease and hepatic encephalopathy and when the patient became a bit stable she was discharged from the Hospital on 09/08/06. The patient on several occasions was admitted in the said Hospital and after the treatment was done she was discharged. On 28/11/07 the patient was referred to the Eastern Diagnostics and Medical Centre Ltd. by the Orthopedic Hospital for the purpose of MRI of the dorsal spine and after the completion of said MRI the Consultant Radiologist gave the impression that there was fracture with marrow oedema seen in the bodies of D11 and D12 vertebra. After going through the report Dr. Subrata Basu told the Complainant that the said patient had been suffering from tuberculosis and diagnosed caries spine and started Anti Tuberculosis Drug (ATD).
The condition of the patient became critical and she was admitted in the B.R. Singh Hospital on 08/03/08 in the female ward under Dr. Sarmistha Mukherjee who advised chest x-ray of the patient. Dr. Angira Dasgupta opined that the patient was not suffering from caries spine, but actually she was suffering from Miliary Tuberculosis. During this period without consulting any neurologist the medicine relating to her neurological problems was stopped abruptly. During the period from 09/05/08 to 18/07/08 the patient underwent the surgery for implantation of pacemaker.
It has further been alleged that due to deteriorating condition of the patient a letter was written to the Medical Director to know as to what actually affected the health of the patient and what was the mode of treatment. On 28/06/08 a Medical Board was set up headed by the Medical Director Dr. Subrata Ghosal and presided over by the OP Nos.7 to 10. But the Medical Board failed to provide satisfactory assessment of the condition of the patient and the suffering of the patient continued due to the negligent act of the concerned doctors. During this period several tests were conducted by the Hospital like CT Scan of dorsal spine, MRI etc. It is very much curious to know that one of the causes of death of the patient as given in the death certificate was old fracture spine, but during her life time she was never treated for the said old fracture rather she was sometimes treated for caries spine and sometimes for Miliary Tuberculosis at the whims of Respondent Nos.1 to
6. Due to the negligent and irresponsible act of the concerned doctors the condition of the patient deteriorated day by day though the said patient till her death was under the treatment of the Respondents Doctors from time to time. But the doctors never cared to take proper initiative in treating the patient carefully and diligently. For the said reason, the complaint was filed praying for compensation of Rs.60 lakh, damages caused due to the negligent act and deficiency in services of the concerned doctors to the tune of Rs.5 lakh and for costs.
W.V. has been filed by OP Nos.1 to 5, 7 to 11.
Separate W.V. has been filed by OP No.6.
It is the case of the OPs that the Complainant received free treatment in the B. R. Singh (Railway) Hospital and, as such, the complaint is not maintainable. The patient was suffering from multiple ailments like seizure disorder, chronic liver disease with portal hypertension with oesophageal varices, sinus node dysfunction, osteoporosis and tuberculosis of spine. For the above ailments, she was admitted several times (13 times) and each time she was discharged in stable condition with proper advice for treatment and follow up to be done at the Gastroenterology and Neurology Clinics of B. R. Singh Hospital which she never complied with. Every time the Petitioner Nos.1 and 2 were explained about the condition and prognosis of the patient. There was no negligence on the part of the treating doctor as the patient was promptly attended and relieved of her symptoms before she was discharged. Whenever her condition deteriorated she was treated in I.T.U and also in I.C.C.U. During all her admissions, as many as 10 doctors have examined, advised and treated her with proper investigations which indicate that there was no negligence at any point of time. The patient needed repeated admission because of chronic and progressive nature of her dishess and not due to any negligence on the part of the treating doctors. Dr. S. Ghosal, Medical Director, B. R. Singh Hospital made an enquiry regarding the complaint and the report was sent to CMD/E.Railway Office vide no.HE/Court/BRSH dated 16/06/08. A Medical Board was held on 28/06/08 where the condition of the patient was reviewed. Her condition was categorically emphasized by all the members of Medical Board that total cure and recovery were uncertain considering her multiple ailments in spite of best possible medical treatment and support from the Hospital. The Medical Board has answered all the queries made by her husband and son on the same day which has been duly signed by Sri S. K. Mitra and Sri Manas Mitra. There was no negligence or deficiency in service in the treatment rendered to the patient during her multiple admissions from June 2006 to October 2008.
The case of the OP No.6, in short, is that he was never a treating doctor in respect of the patient Shanti Mitra, since deceased. He acted as a member of the independent Medical Board wherein the treatment of the patient was evaluated and the Complainants were informed that considering the multiple ailments suffered by the patient, the total cure and recovery were uncertain. As a member of the independent Medical Board he was never paid any consideration by the Complainants at any point of time. He was not involved in the day to day treatment of the patient at any point of time and, as such, there was no consumer service provider relationship between him and the Complainants.
The Learned Counsel for the Complainant has submitted that the Complainants are consumers and in this respect order has also been made in connection with MA 253 of 2010 and MA 240 of 2010 vide order dated 18/03/11. It is submitted that the patient was treated at B. R. Singh Hospital and she was never a patient of tuberculosis, but she was diagnosed to be a patient of tuberculosis and treated accordingly. It is contended that because of the administration of anti-tuberculosis drugs it had adverse effect upon the patient and, as a result, her condition deteriorated. It is submitted that the patient was all along suffering from neurological problem and she was treated by Dr. Sital Ghosh for epilepsy. It is contended that no investigation was made to come to the diagnosis of the patient as tuberculosis. It is contended that the patient was referred to Howrah Hospital where tuberculosis card was issued in her name. It is submitted that the patient was admitted in B. R. Singh hospital on several occasions and she was discharged with the advice to attend OPD, Neurology and Gastroenterology. It is contended that even at CMC, Vellore the patient was diagnosed to be one suffering from epilepsy. It is contended that at one time the medicines for epilepsy were stopped and her condition deteriorated further at B. R. Singh Hospital.
The Learned Counsel for the Complainant further submitted that without proper investigation it was diagnosed to be a case of tuberculosis and no treatment for epilepsy was made at the B. R. Singh Hospital which ultimately led to the death of the patient. It is contended that although the patient was diagnosed as having suffered from caries spine there was no mention in the death certificate as to caries spine. It is contended that the doctors at B. R. Singh Hospital miserably failed to detect the disease and, therefore, the appropriate medicines were not administered to the victim. It is submitted that it was a clear case of negligence on the part of the OPs.
The Learned Counsel for the OPs, on the other hand, has submitted that the patient had been suffering from multiple ailments which have been mentioned in the treatment sheet and in the report of the Medical Board. It is submitted that no expert evidence was adduced by the Complainant and in absence of such evidence it cannot be said that there was negligence on the part of the OPs. It is submitted that the Medical Board was constituted and the matter was explained to the Complainants as to the ailments diagnosed and the treatment done. It is submitted that the Complainants signed in the report of the Medical Board. It is submitted that proper investigation was made and the treatment was done as per the standard medical practice and procedure. It is contended that there was no medical negligence on the part of the OPs.
The Learned Counsel for the OP No.6 has adopted the argument advanced by the Learned Counsel for the other OPs. In addition it is submitted that in the complaint there was no specific allegation as against OP No.6. It is submitted that OP No.6 was only a member of the Medical Board and no treatment was done by him.
We have heard the submission made by both sides and carefully examined the evidence on record. As regards the contention of the Learned Counsel for the OPs that the Complainants cannot be said to be consumers, we find from the Paragraph-6 of the petition of complaint that the Complainant No.1 at the time of retirement opted for Retired Railway Employees Libealised Health Scheme for availing medical facilities at the nominated railway hospitals and health units. It has also been averred that the Complainant No.1 as per rules and regulations of the Indian Railway paid a sum of Rs.8,438/- for the said medical services and facilities under the said RELH scheme and the Railway Authority issued a RELHS card being No.LHS/HOW/5305 on 21/06/06. Since the Complainant No.1 availed himself of the said scheme on payment of the sum of Rs.8,438/-, he was entitled to get medical facilities in the Railway Hospital. Because of availing himself of such scheme, we are of the considered view that the Complainants are consumers within the meaning of Section 2(1)(d) of the C. P. Act, 1986.
The allegation of the Complainant is two fold.
Firstly, it is the case of the Complainant that the patient had been suffering from epilepsy and she was treated accordingly both at CMC, Vellore and also by Dr. Sital Ghosh. It is the contention of the Complainant that the medicines prescribed at CMC, Vellore and by Dr. Ghosh for epilepsy were discontinued by the doctors of B. R. Singh Hospital. It is contended that no treatment was done for the neurological problems. On this point it is found from Annexure-A to the complaint at Page-20, that is, the medical report issued by the Department of Neurological Sciences, CMC, Vellore dated 15/09/2000 that it was diagnosed to be a case of temporal lobe epilepsy. Recommendations were:
Tab. Tegretol 200mg. thrice daily Tab.
Osteocalcium 1 once daily.
From the Annexure-B at Page-23 to the complaint it appears that Prof. Sital Ghosh prescribed Tegretol 200mg and Epilex 200mg for the patient. From the treatment sheet issued by the Railway Hospital being Annexure-J Page-42 it appears that Tegretol (200) and Eptoin (100) were prescribed. On several treatment sheets issued by the Railway Hospital it was mentioned that the patient was suffering from seizure disorder. Needless to say that seizure disorder refers to epilepsy. It, therefore, cannot be said that the treatment of epilepsy which was initially diagnosed at CMC, Vellore and by Dr. S. Ghosh and the medicines prescribed therefor were discontinued at the B. R. Singh Hospital. The first contention of the Complainant is, therefore, not sustainable.
Secondly, it is the specific contention of the Complainants that the patient had never been suffering from tuberculosis and without proper investigation anti-tuberculosis drugs were administered for which her condition started deteriorating. On this point we find from the medical papers submitted that the MRI of dorsal spine was done on 03/07/08 and the impression was that there was partial collapse with marrow edema of D12 body. As per impression on MRI dated 25/06/08 there were:
1) D12 body partial collapse with marrow edema of D12 body
2) Lumber spondylosis with degenerative disc disease
3) L 4-5 and L5-S1 bulging disc with facet arthropathy causing central canal and neuroforaminal stenosis
4) L 1-2 and L 3-4 bulging disc.
MRI of dorsal spine dated 29/11/07 shows the impression as Fracture with marrow edema is seen in bodies of D11 and D12 Vertebrae.
It, therefore, follows that different tests and investigations were made before coming to the final diagnosis as caries spine and, subsequently, miliary tuberculosis.
It cannot be said that without proper investigation anti-tuberculosis drugs were administered. Evidently, the patient had been suffering from bone disease. As per report of the Medical Board dated 28/06/08 the findings were as hereunder.
Patients husband and son were requested to produce
1. Patients old Discharge Certificates.
2. Reasons for starting ATD & planned withdrawal after 6 months.
3. Explained all diseases patient is suffering from since 2006 needing hospital admission in details-
i. Seizure disorder ii. Chronic liver disease.
iii. Cares spine with Osteoporosis.
iv.Sinus node disease requiring Pacemaker implantation.
Few investigations as suggested by the Orthopaedician and all members of Medical team to be done.
Medical Board had answered all the queries made by husband and son of Smt. Shanti Mitra, Bed No.44 FMW on 28.06.2008 at 11.30 a.m. It has been categorically emphasized by all members of the Medical Team that total cure and recovery are uncertain considering her multiple ailments inspite of the best possible medical treatment and support form the Hospital.
The Learned Counsel for the OPs has also referred to the medical literature Treatment of Tuberculosis Guidelines (4th edition) World Health Organisation. It has been submitted by the Learned Counsel for the OPs that the treatment in case of pulmonary tuberculosis and caries spine is the same.
He has referred to the point no.8.2 of the said medical literature wherein it has been held pulmonary and extra pulmonary disease should be treated with the same regimens. No expert opinion was adduced by the Complainant to prove that the diagnosis and the treatment were wrong. The Learned Counsel for the OPs has referred to the decisions reported in 2009 CTJ 581 (SC) (CP) [Dr. C.P. Sreekumar, M.S. (Ortho) Vs. S. Ramanujam]; 2010 (2) CPR 497 [Smt. Prem Vs. Satyam Hospital Pvt. Ltd. & Anr.]; 2011 (3) CPR 478 (NC) [Abraham Koola & Anr. Vs. Royal Hospital & Anr.].
There is another important aspect of the matter.
In the decision reported in 2012 (1) CPR 111 (NC) [Smt. Sajini, Major Vs. Chaya Nursing Home & Ors.] it has been held by the Hon'ble National Commission that medical complications cannot always lead to inference of medical negligence. In another decision reported in 2012 (3) CPR 112 (NC) [Smt. Narangiben Subodhchandra Shah through her LRs Vs. Gujarat Research and Medical Institute Popularly known as Rajasthan Hospital & Ors.] it has been held by the Hon'ble National Commission that every medical failure is not medical negligence. From the indoor discharge certificate issued by the Railway Hospital it would appear that the patient remained admitted for the period from 28/03/08 till 02/04/08. It has been clearly mentioned therein as follows:
Poor compliance to drugs.
It goes to show that after discharge from the Hospital the patient did not follow the advice given by the doctor in the matter of taking medicines. This is evident from the fact that she had to be admitted in the Hospital as many as 13 times. In the decision reported in 2012 (2) CPR 118 (NC) [Dr. V. S. Malik Vs. Avik Mukherjee & Anr.] it has been held by the Hon'ble National Commission that the doctor cannot be saddled with medical negligence if the patient does not co-operate. In view of the decision aforesaid the non-compliance of the advice of the doctor with regard to taking medicines does not come in the aid of the contention of the Learned Counsel for the Complainant.
Having considered the evidence on record, we are of the considered view that the Complainants could not prove the negligence in the matter of treatment or deficiency in service rendered by the OPs.
In such view of the matter the Complainants are not entitled to get any relief.
The petition of complaint is dismissed. We make no order as to costs.
Sd/- Sd/- Sd/-
MEMBER(TG) MEMBER(L) PRESIDENT