Date of Filing: 28-10-2015 Date of Final Order: 31-01-2018
Smt. Runa Ganguly, Member
The Complainant, Smt. Pranati Mahanayak, W/O. Sri Pramod Mahanayak, has filed the present case U/s 12 of the C.P. Act 1986.
The brief facts of the case are that on 31/08/2015 the Complainant was admitted in O.P. No.2 i.e. Poddar Speciality Hospital (P) Ltd., Cooch Behar under O. P. No.1 i.e. Dr. R. Gupta with severe abdominal pain. The O.P. No.1 after examination told the Complainant that she had cholecystitis with cholithiasis and needed immediate Cholecysistectomy Operation. Accordingly the Complainant deposited her R.S.B.Y card to the O.P. No.2 for realisation of Hospital Charges and above doctor's Fees. On 02/09/2015 the O.P. No.1 performed Cholecystectomy operation upon the Complainant at the O.P. No.2 Hospital and discharged her on 07/09/2015. The O.P. No.1 performed operation in negligent and unskilled manner and caused injury to the common bile duct near confluence resulting to leakage of bile surrounding abdominal cavity and after operation the condition of the Complainant deteriorated, her abdominal pain aggravated, fever and abdominal distress started for which the Complainant was again admitted in the O.P. No.2 hospital on 09/09/2015 under Dr. R. Gupta. The Complainant reported the matter to the above O.Ps but they neglected to take reasonable measure for management of the post operative complication. Ultimately the Complainant was discharged from the O.P. No.2 hospital on 10/09/2015 and she was referred to the Medical College & Hospital, Kolkata for investigation and treatment. From the R.S.B.Y card of the Complainant the O.Ps realised total amount of Rs.9,000/-.
Thereafter, the Complainant went to Dr. Tarun Paul and after examination and necessary investigation, he found that the Cholecystectomy operation done on 02/09/2015 was faulty and during said operation the O.P. No.1 caused leakage of Common Hepatic Duct/Common Bile Duct. Due to such leakage there was collection of infected Bile in Sub-Diaphragmatic space (Rt.), Hepatorenal Pouch and different places in abdominal cavity even in pelvis, which caused serious infection. Dr. T. Paul advised for a major operation for repairing of the above leakage and clearing of above collection of infected bile from the abdominal cavity to save the life of the patient. On 15/09/2015 the Complainant was admitted in Ritari Health Care (P) Ltd. under Dr. Tarun Paul, and on 16/09/2015 the operation was done by Dr. T. Paul at the said Nursing Home. After operation the Complainant gradually recovered and she was discharged from the said Nursing Home on 23/09/2015 after full recovery and now the Complainant is leading peaceful life without any complain. A sum of Rs. 76,000/-was paid to Ritari Health Care (P) Ltd. for the Nursing Home charges and Fee of Dr. Tarun Paul.
The O.P. No.1 performed Cholecystectomy operation at the O.P. No.2 Hospital in negligent manner for which the Complainant had to suffer much physically and mentally and also financially in post operative period and also there was deficiency in service and unfair trade practice adopted by the above O.Ps for which the Complainant suffering from loss and injury both physically and mentally, and he has filed the present case seeking redress and reliefs. The claim of the Complainant is as follows :
- Money released by the O.Ps from R.S.B.Y. Card - Rs. 9,000/-
- Money paid to Ritari Health Care (P) Ltd. - Rs. 76,000/-
- Aaya charges for total 16 days & nights - Rs. 8,000/-
- Suffering for mental agony - Rs.1,50,000/-
- Medicine costs - Rs. 22,500/-
- Litigation cost - Rs. 10,000/-
Total Rs.2,75,500/-
The O.P. No.1, 2 & 3 have appeared through their Ld. Advocate for contesting the case. The O.Ps by filing their separate W/V contending inter-alia that the present case is not maintainable before this Forum in its present form as well as in law.
The main contention of the O.P. No.1, Dr. R. Gupta is that the Complainant came to the O.P. No.1 on 31/08/2015 at OPD with a history of chronic Cholelecystitis with Cholelithiasish. On examination of reports (USG) and on clinical examination she was advised to undergo operative treatment and on 02/09/2015 the said patient was operated for Choleystectomy under spinal anaesthesia given by the anaesthetist and a drain was placed in Morrision’s pouch. It is pertinent to mention here that the patient was transfused 2 units of blood prior to her surgery for her low haemoglobin. The said surgical operation was uneventful and there was no complication whatsoever on the part of the patient.
On 04/09/2015 the collection in drain looked bilious for which a suspicion was raised with the patient party as the patient was not ambulating. On 05/09/2015 the Bilirubin of serum of the patient was 2.3 mg % and the patient had an uneventful recovery and she was discharged from the said nursing home on 07/09/2015 with advice to take care of the drainage tube and ambulate. Any statement contrary to this have been stated in the complaint petition are emphatically denied by this O.P.
On 09/09/2015 it was informed that drainage tube of the patient had pulled out by the patient and for which she was readmitted and then and there this O.P. No.1 advised for U/S examination, MRCP and LFT but on 10/09/2015 it was found that only ultrasound test was done which showed dilated proximal CBD and MRCP not done due to poor financial status but this O.P informed the patient party that without MRCP nothing concrete could be diagnosed as to the cause of Biliary leak for which the O.P. No.1 referred the patient to Kolkata Medical Collage & Hospital Gastroenterologist for further investigation and treatment as there it would be free but till 13/09/2015 the said patient did not go to the Kolkata Medical Collage rather the patient party insisted the O.P for further treatment but it was informed by the O.P. No.1 that the patient could have been operated by the O.P if there was only a bile leak.
The O.P. No.1 further contended that the statement made in para 6 of the complaint that the Complainant is a poor lady and could not go outside are denied by this O.P and asserts that the patient party has paid a huge sum of Rs.76,000/- for further treatment which was a gross overcharge for such further treatment. It was denied that there was wrong treatment and lack of ordinary care and skill at the time of surgery as alleged by the Complainant. The operation performed by this O.P. No.1 was all together uneventful and perfect also there was no medical negligence and deficiency in service on the part of this O.P. No.1. Therefore, the O.P. No.1 prayed for dismissal of the case with cost.
The O.P. No.2, Poddar Speciality Hospital (P) Ltd., Cooch Behar asserted in their W/V that the O.P. No.2 is a reputed Nursing Home having better equipments & infrastructures and provides the same and great care followed the advice of attending doctor and medicines as was prescribed by the doctor i.e. the O.P. No.1 to the patient/Complainant at the time of treatment. The O.P. No.2 emphatically denied that there was no medical negligence, deficiency in service and unfair trade practice as alleged by the Complainant. The entire allegations as brought against the O.P. No.2 are altogether false and baseless. Hence, the present complaint is liable to be dismissed U/S 26 of the C.P. Act, 1986. Therefore, the O.P. No.2 prayed for dismissal of the case with cost.
The O.P. No.3, the Branch Manager, United India Insurance Co. Ltd., Cooch Behar contended that no relevant medical papers and any expert opinion have been filed in respect of alleged medical negligence by the Complainant. The O.P. No.3 stated that in this case this O.P added as the O.P. No.3 by the petition filed by the O.P. No.2, Poddar Speciality Hospital (P) Ltd., Cooch Behar who was under errors and omissions policy subject to terms & conditions of the said policy for the period of 22/01/2015 to 21/01/2016. It is pertinent to mention that every insured who takes the insurance policy has to obey all terms & conditions of the said policy. But in that case, the O.P. No.2 insured have violated condition No.10 (a) and policy exclusion vide No.9 (C) 9(n) of the above referred insurance policy.
As per policy condition vide Exclusions clause “No liability shall attach to the company in respect of any criminal act or any act committed in violation of any law or ordinance” and thereby this O.P is not liable to indemnify the interest of the O.P. No.2 and this O.P/Insurance Company is not liable to pay any compensation to the O.P. No.2. There was no negligence or deficiency in service on the part of this O.P/Insurance Company. The Complainant has not claimed any relief against the O.P. No.3. By putting all above the O.P. No.3 further pleaded that the name of this O.P/Insurance Company is liable to be expunged from this case and the complaint is liable to be dismissed with compensatory cost.
In the light of the contention of the Complainant, the following moot points necessarily came up for consideration.
POINTS FOR CONSIDERATION
- Is the Complainant Consumer as per Section 2(1)(d) of the C.P. Act, 1986?
- Has this Forum jurisdiction to entertain the instant complaint?
- Have the O.Ps any medical negligence and deficiency in service as alleged by the Complainant and are they liable in any way?
- Whether the Complainant is entitled to get relief/reliefs as prayed for?
DECISION WITH REASONS
We have gone through the record very carefully and perused the evidence on affidavit of the parties along with relevant documents. Perused also the written argument filed by the parties and heard the argument advanced by the Ld. Agents of the parties at length.
Point No.1.
The Complainant hired medical service from the O.P. No.1 and admitted in the Nursing Home of the O.P. No.2. The O.P. No.1 performed operation to the Complainant against certain payment of consideration at the O.P. No.2 Nursing Home. Thus, the relation between the Complainant and the O.Ps so established from the record we are convinced to hold that the Complainant is the Consumer of the O.P. Nos.1 & 2.
Point No. 2.
Both O.Ps are running their business within this district i.e. within the jurisdiction of this Forum. The Complaint value is far less than the prescribed limit. Thus, this Forum has pecuniary as well as territorial jurisdiction to try this case.
Point No. 3 & 4.
Both the points are taken up together for convenience of discussion and sake of brevity.
It is the case of the Complainant that he took admission in the O.P. No.2 Nursing Home under O.P. No.1 with abdominal pain. Cholecystectomy operation done by the O.P. No.1 at the O.P. No.2 Nursing Home but the said operation performed by the O.P. No.1 in negligent manner and caused injury to the common bile duct and the condition of the Complainant was deteriorated. Thereafter, the Complainant again admitted under the O.P. No.1 but the Doctor failed to take any post operative measure and referred the patient to Kolkata Medical College. Ultimately, the Complainant cured under the treatment of Dr. Tarun Kr. Paul.
It is the case of the O.P. No.1 that he performed operation of the Complainant with due care and the same was uneventful and the patient was discharged on 07.09.2015 without any complication. Thereafter the Complainant again admitted with some complication and this O.P advised for U/S examination, MRCP and LFT but those were not done except U/S due to financial problem. This O.P. has taken plea that without MRCP nothing can be diagnosed the actual cause of Biliary leakage and for further investigation and treatment he referred the patient to Kolkata medical college for her betterment.
On a meticulous scrutiny the documents made available in the record it appears that the Complainant admitted on 31.08.2015 at O.P. No.2 Nursing Home under dr. R. Gupta i.e. O.P. No.1 and discharged on 07.09.2015 and Cholecystectomy done on 02.09.2015 by Dr. R. N. Gupta (Annexure-B)
Annexure-C reveals that the Complainant further admitted at the O.P. No.2 Nursing Home under O.P. No.1 on 09.09.2015 with some post-operative complications.
Annexure-D is the report of USG of whole Abdomen dated 10.09.2015 from where it has seen that about 300 ml. of right sub diaphragmatic collection is present and proximal part of CBD is slightly dialed. Distal CBD could not be visualized.
Thus, from the above documents it is established that the O.P. No.1 performed Cholecystectomy of the Complainant and thereafter, some complications arose like CBD injury, huge bile collection in some ports of the Complainant’s body. Surprisingly, the O.P. No.1 despite noticing the presence of 300 ml. collection in the body of the Complainant referred the patient to Kolkata Medical College without rendering any service to clear the collection or did not provide any subsequent treatment to relieve the patient. This is nothing but a gross negligence on the part of the O.P doctor. He had a duty to take post operative care as and when the patient was further admitted under him. Further, we do not find any USG or any other report before performing Cholecystectomy. The O.P. No.1 operated the Gall Bladder of the Complainant only clinically examined her. This act and conduct of the O.P doctor may be described as gross negligence and he performed operation without due care and caution.
On the contrary it appears that after referred by the O.P doctor the Complainant failed to move Kolkata but he admitted in Ritari Health Care Pvt. Ltd. under a renowned Surgeon Dr. T.K. Paul.
Annexure-E reveals that the Complainant admitted in Ritari Health Care Pvt. Ltd. On 15.09.2015 under Dr. T.K. Paul who diagnosed Rt. Sub diaphragmatic huge bile collection, also in H/R pouch and multiple loculated collection in different places ob abdominal cavity, even in pelvis with CBD injury at confluence in a post Cholecystectomy case.
After diagnosed the complication the Surgeon T. K. Paul performed Laportomy on 16.09.2015, thorough toileting done with drainage of the HR Pouch. Annexure E series also reveals that Dr. T. Paul done various tests, examination in pre-operative period. The surgery done successfully and the patient has been discharged on 23.09.2015 with good condition. The Complainant stated that after that operation he faced no further complications and cured properly.
The Ld. Agent for the Complainant vehemently argued that the O.P. No.1 performed Cholecystectomy at the O.P. No.2 Nursing in unskilled manner and all the post operative sufferings like leakage of bile surrounding abdominal cavity was the impact of the said operation. The Complainant with acute abdominal pain went to Dr. T. Paul at Ritari Health Care Pvt. Ltd. on 15.09.2015 and Dr. T. Paul explained that he noticed CBD injury at confluence in a post Cholecystectomy case done elsewhere. Dr. T. Paul performed the operation by repairing the CBD injury after thorough toileting on 16.09.2015 and the patient was discharged on 23.09.15 after full recovery. It was urged that the patient party paid a sum of Rs.76,000/- to the Ritari Health Care Pvt. Ltd. towards the treatment of the Complainant. The Ld. Agent for the Complainant also urged that the O.P. No. 1 discharged the patient without recovery of her post-operative complication even without removing the drainage tube fitted by him during operation. This act and conduct of the O.P. certainly against the medical ethics, which a prudent doctor would not do.
In the light of above discussion we do find that the O.P. No.1 performed Cholecystectomy without any relevant test or USG that is very much important to perform any kind of operation. We do not find any Treatment Sheet of the patient, Pranati Mahanayak during the treatment period 31.08.2015 to 07.09.2015 under O.P. No.1 at the O.P. No.2 Nursing home. Secondly, the O.P. No.1 discharged the patient on 07.09.2015 without removing the drainage tube. Thirdly, after readmission of the patient on 09.09.2015 under the O.P. No.1 at the O.P. No.2 Nursing Home despite noticing the complication of bile leakage and the presence of 300 ml. collection in the abdomen the O.P. No.1 did not take any step for clearing the same rather referred the patient to Kolkata Medical College which is far distance from this place. It would be fatal by not getting any treatment in her acute emergency stage. As per the medical protocol, the opposite party Nursing Home and its doctor on perusal the USG report dated 10.09.2015 were required to take immediate remedial step like repairing the CBD injury which caused bile leakage of the patient. But record reveals that the O.Ps failed to undertake immediate step. This is nothing but a gross negligence/deficiency in service on the part of the O.Ps. The O.P. No.2 cannot evade its liability as and when he was in full knowledge of the entire fact and the discharged/referral certificate issued by the O.P. No.2 Nursing Home. Thus, deficiency service cannot be ruled out against this O.Ps.
In this Juncture reliance has been placed upon an authority reported in 2017 (2) CPR 334 (NC) where in Hon’ble National Commission pleased to hold that –Doctors must act promptly in case of acute medical emergency.
Further, In this case Dr. T. Paul has been examined and during the course of examination Dr. Paul clearly stated that the CBD injury was occurred at the time of Cholecystectomy though in case of Cholecystectomy there is no need of cutting the CBD, only Cystic Duct dissected, tied and cut. The USG report dated 10.09.2015 is the supportive document for diagnosis of the Patient. The patient ultimately cured after an operation performed by Dr. T. K. Paul who is a Surgeon of and we accepted the findings of Dr. T. Paul. Besides, the O.Ps failed to give any plausible explanation about their negligent act. Thus, from all corner the medical negligence/deficiency in service of O.Ps is clearly established.
The O.P. No.3 is Insurance Company has been added on a prayer of the O.P. No.2. We do not find any Insurance Certificate in the record. The Complainant has no allegation against the O.P. No.3 as such this Forum is of the view that the O.P. No.3 shall be immune from any liability against the claim of the Complainant. The claim of the O.P. No.2 to the O.P. No.3 is not a matter of consideration of this Forum.
In the light of above discussion we are of considered opinion that the O.P. No.1 is liable to make payment of Rs.1,00,000/- as compensation for his medical negligence & deficiency in service, Rs.76,000/- as treatment cost along with Rs.5,000/- as litigation cost. The O.P. No.2 also liable to make payment of Rs.75,000/- as compensation to the Complainant for deficiency in service along with Rs.5,000/- as litigation cost.
Hence,
it is Ordered,
That the present Case No. CC/97/2015 be and the same is allowed on contest against the O.P. No.1 & 2 with cost of Rs.5,000/- each and dismissed against the O.P. No.3 without any cost.
The O.P. No.1 is directed to pay the Complainant Rs.1,00,000/- as compensation for medical negligence and Rs.76,000/- for subsequent treatment.
The O.P. No.2 is directed to make payment of Rs.75,000/- as compensation to the Complainant for deficiency in service.
The O.P. Nos.1 & 2 are further directed to comply with the above mentioned order within 45 days failing of which each O.P shall have to pay Rs.100/- for each day’s delay and the amount to be accumulated shall be deposited in the Consumer Legal Aid Account.
Let plain copy of this Final Order be made available and be supplied free of cost to the concerned party/Ld. Advocate by hand/Registered Post with A/D forthwith for information and necessary action, as per Rules. The copy of the Final Order will also be available in the following Website:
confonet.nic.in.
Dictated and corrected by me.
