Nihal Kaur and others vs. Director, P.G.I. and others 1998 CCJ 306

Chandigarh State Consumer Disputes Redressal Commission, Chandigarh

Amrik Singh aged 52 was examined in the PGI, Chandigarh, on 6.4.1993 and as a consequence of diagnosis splenic abcess was found. The operation wce of diagnosis splenic abcess was found. The operation was conducted on 20.4.1993. The wife and other members of the family of aforesaid Amrik Singh were informed that the operation was successful. However, the patient allegedly developed trouble and he died on the following day, i.e. 21.4.1993. Amrik Singh was carried to his native village 'Seh', District Ludhiana, where he was cremated the same day. On 23.4.1993 relatives and friends reached the cremation ground for collecting the last remains of the deceased. A 'scissors' utilized by a surgeon was collected from the last remains of Amrik Singh, deceased. The complainants have alleged that the 'scissors' remained in the body and the negligence of the doctors was the cause if death; that a news item appeared in The Tribune dated 24.4.1993. The cause of death declared by Dr. Sanjay Aggarwal, Joint Registrar, PGI, Chandigarh, was cardiorespiratory arrest. The complainants allege that the deceased was a well placed agriculturist, having good health and the complainants have been deprived of his love and affection. His card No. was 350599 and bed No. was MW 59. Compensation of Rs. 10,00,000/- which also includes expenses incurred has been claimed.

In a reply filed on behalf of the opposite parties, by Dr. B.N.S. Walia, Director, PGI, Chandigarh, it has been averred that the Grievances Committee, PGI, Chandigarh, considered the matter and its findings were that there was no negligence involved as the patient was seriously ill. The instrument found in the abdomen was 'forceps' and not 'scissors' and it was put to stop further flow of blood, done in order to save the life of the patient. It is averred that as the patient died soon after operation, the instrument could not have caused any problem to the patient. It has also been averred that Amrik Singh was seriously ill even before starting the operation, had collapsed thrice on the operation table during operation and all the times he was revived. The fourth heart arrest could have been fatal and in order to avoid that, abdomen of the deceased was closed leaving behind the clamp on the artery and he was sent to the recovery room where he died on account of fourth heart arrest. The operation was performed by Dr. B.V. Parveen, the senior-most Registrar of Unit-III. The abdomen was closed with mass ligatures. The deceased was shifted to recovery room at about 10.45 p.m. because he had cardiac arrest during surgery. The 'artery forceps' and 'sponges' were left inside the abdomen knowingly to stop bleeding from the splenic bed. This has further been averred that this practice is well recognized. The post-mortem was not allowed on the deceased by relatives. It has further been averred that the complaint should be dismissed with costs.

The Commission went on record by saying, we have seen the operation notes which shows that Dr. B.V. parveen, Dr. K.K. Mukerjee and Dr. Virender acted as surgeons. The names of anaesthesiologists and sisters have also been mentioned separately. These contain a mention that the patient had three cardiac arrests after the start of operation. The patient was revived. The third arrest was towards the end of surgery and it was also revived and he was shifted to emergency recovery room and put on ventilator. According to the report of Dr. Kanchan, the procedure terminated due to cardiac arrest and sponges left inside. She has nowhere mentioned that the forceps was kept inside. A perusal of all these proceedings clearly show that these were recorded long after the completion of the operation and no surprise after the death of the patient. If there was such a large team of doctors and other medical attendants, there was no reason why operation notes were not recorded in the manner the events took place.

May be that knee joint or an artificial hip is provided as a kind of replacement. In his reply to this question, the medical specialist could not justify placing/storing of this quite a long forceps in the body. The patient had been undergoing an operation which was considered essential in his interest. However, leaving the long forceps inside the delicate part was not at all justified and claiming its justification appears to be adding insult to the injury in the case now in hand.

Whenever a guardian of the patient/deceased wants to collect some relevant information, he is entitled to it. The Medical Officer incharge, whether in a Government hospital or in a private hospital, is bound to supply the information in respect of the treatment given to the indoor patient everyday.

Finally, the Commission held that finds that this unilateral report does not find support from the facts on record as seen above. Having regard to the facts narrated above, it cannot be said that there was no negligence in handling this case on the part of the team attending on this patient. The negligence is writ large on record. Accordingly, this Commission comes to the conclusion that deficiency in providing necessary services to the patient is well established on the record. After taking into account the fact that the deceased was aged 52 years and supposed to be otherwise in satisfactory health, compensation of Rs. 1,20,000/- shall be payable by opposite party No. 1. Out of it, a sum of Rs. 1,00,000/- to complainant No.2, Pritam Kaur, the widow, and the remaining sum shall be equally payable to complainant Nos. 1 and 3, the mother and son of the deceased respectively. As regards costs, it is assessed as Rs. 3,000/- and shall be paid by all the three opposite parties equally. These payments shall be made within three months.

RECENT COPRA JUDGEMENTS

Alok Kumar Chakraborty vs. Dr. Gautam Biswas and another 1998 CCJ 57

West Bengal State Consumer Disputes Redressal Commission, Calcutta

This is a complaint case preferred by Alok Kumar Chakraborty on the alleged negligence of the opposite parties causing untimely death of his wife, Shankari Chakraborty. death of his wife, Shankari Chakraborty.

The facts in short as alleged by the complainant are that the petitioner, Alok Chakraborty's wife Shankari Chakraborty, since deceased on 29.10.1993, had an attack of fever with loose motion, stomach pain and cold and coughing of blood, etc., and the petitioner at that point of time consulted Dr. N.G. Chakraborty who prescribed certain medicines and further advised for few pathological tests and X-ray. Subsequently, the complainant-petitioner contacted Dr. A.K. Sil, the opposite party No.2 on 27.10.1993 and as per the advice of Dr. Sil the said Shankari Chakraborty was taken to Ecstasy Nursing Home and Diagnostic Services for all pathological tests. After the said pathological tests when it appeared that the said Shankari Chakraborty had some breathing trouble due to cough and cold, to give her best medical treatment as per advice of Dr. A.K. Sil she was admitted in the said Ecstasy Nursing Home and Diagnostic Services as Dr. Sil diagnosed pneumonitis provisionally.

That on 28.10.1993 as per the advice of Dr. A.K. Sil another specialist Dr. Kaushik Mitra was called for and after examining the patient while ratifying the treatment so adopted by Dr. Sil to the patient he added few more advises such as steam inhalation thrice daily together with moist O2 inhalation and also advised amikacin injection and other medicines as would appear from the prescription so given by him.

On 28.10.1993 opposite party No.2, Dr. Sil, personally visited Shankari Chakraborty at 10 p.m. and expressed his satisfaction on the better condition of the patient. That unfortunately on 29.10.1992 at 5 a.m. upon receipt of a call from the said nursing home, Dr. Sil reached the nursing home and upon examining the patient he found that the condition of the patient had deteriorated very rapidly due to septicaemia and ultimately in spite of their best efforts the said Shankari Chakraborty seems to be expired at 5.30 a.m. and subsequently the said death was confirmed at 9 a.m. by the said nursing home and accordingly death certificate was issued by opposite party No.2.

That in the said complaint petition, complainant alleged gross negligence on the part of the opposite parties.

That upon receipt of notice to show cause both opposite party Nos. 1 and 2 entered appearance and filed their written objection categorically denying not only their liability but also the allegations so leveled against them and in particular in the written objection of opposite party No.2 it has been categorically stated that he, being the school friend of the complainant, used to be consulted by the complainant and the members of his family and other relatives in their hour of need and as a good friend he never accepted any money on any occasion and at the time of treating the complainant's wife too on 27.10.1993 and 28.10.1993 he did not take fees from the complainant/petitioner, the question of claiming compensation for alleged deficiency in service on the part of the opposite party No.2 does not or can ever at all arise.

The learned advocate appearing on behalf of the complainant-petitioner at the time of arguing the case submitted that-
a. No proper diagnosis was made by the opposite party No.2 while treating the deceased Shankari Chakraborty;
b. That the said Shankari Chakraborty was not under oxygen on 28.10.1993 at 10 p.m. which caused the rapid deterioration of her health condition;
c. Septicaemia developed for the reasons best known to the doctors;
d. The patient was not properly attended by the said nursing home and as such the opposite party No. 1 cannot escape his liability and in support of his arguments he cited the decision in Laxman Balkrishna Joshi v. Trimhak Rapu Godbole, 1968 ACJ 183 (SC) and also referred to Winfield on Tort.

The learned advocate on behalf of the opposite party No.1 while denying the complainant's case submitted before this learned Commission that there was no negligence on the part of the nursing home as it would be crystal clear from the documents so placed before this Hon'ble Commission along with the affidavit on behalf of the opposite party No.1 sworn by Dr.Gautam Biswas and from annexure 'B' and 'C' attached thereto would support the fact that there was no negligence on the part of the opposite party No.1.

The learned advocate herein on behalf of the opposite party No.2 argued that to sustain a case against the doctor and nursing home on the allegation of negligence on the part of the opposite parties the complainant will have to satisfy three facts:
(i) That he is a consumer in view of his hiring the service of doctor on payment;
(ii) That the treatment so made by the doctor was not proper, i.e., he has not taken reasonable care while treating the patient and the death of the patient was caused due to a wrong treatment;
(iii) That the treatment so given to the patient either by the visiting doctor and/or by the nursing home was not proper as per expert doctor's opinion.

The learned advocate appearing on behalf of the opposite party No. 2 in this connection submitted that opposite party No.2 being a school friend of the complainant, he never accepted any money whatsoever for rendering medical treatment to the complainant or his family members and so too in the case of wife of complainant he did not accept any money, as such question of hiring service on payment did not at all arise and in support of his argument he referred to an affidavit which was sworn by one Samir Kumar Banerjee who happens to be a close relative of the complainant and while highlighting the treatment so adopted by the visiting doctor, the opposite party No.2 to the patient he also referred to the prescription of Dr. Kaushik Mitra who as an expert, supported the diagnosis of Dr. Sil. The learned advocate further submitted that the complainant had miserably failed to substantiate his alleged claim against the doctor and nursing home by producing any document or oral evidence in support of his statement that the course of treatment adopted by the opposite party No. 2 and opposite party No.1 was not at all proper. In this connection he referred to one decision as reported in Surendra Kumar Kumawat v. Dr. Sunil Jain, II (1994) CPJ 90, wherein in para 16 Peter Pain, J. held in Clark v. Maclenna, (1983) 1 All ER 416, that "In an action in negligence the onus of proof normally rested on the plaintiff, in a case where general duty of care arose and there was a failure to take a recognized precaution and that failure was followed by the very damage which that precaution was designed to prevent, burden of proof lay on the defendant to show, he was not in breach of any duty." But in this case no such complaint has been made out. He further referred to para 17 of the said case wherein Lord Denning explained the law on the subject of negligence against the doctors and hospitals as reprted in Hatcher v. Black, (1954) Time 2nd July, wherein it has been categorically stated: "You must not, therefore, find him negligent simply because something happened to go wrong. You should only find him guilty of negligence when he falls short of the standard of a reasonable skillful medical man, in short when he is denying of censure for negligence in a medicalman is deserving of censure." He further argues that even if in the case of mistaken diagnosis it cannot be termed as negligent diagnosis. He also referred to Lord Nathan's Medical Negligence (1957 Edition) referring the observation of the Lord President Clyde in Hunder v. Hanley, 1995 SIL 213, regarding the standard of care which the law requires from a medical practitioner. He also cited other decisions reported in Consumer Protection Reporter and Consumer Protection Judgment to support the defence case that the complaint so made is not at all maintainable.

Upon hearing the learned Counsel at length, this Hon'ble Commission directed the opposite party No.2 Dr. Sil to explain how and in what circumstances the septicaemia crept in while the patient was suffering with pneumonitis in spite of giving so many medicines. The opposite party No.2 Dr. Sil was good enough to clarify the entire circumstances with reference to the prescription so produced by the complainant in order to satisfy the Commission that the treatment so adopted by him not only got the support from the expert doctor but also from the Harrison's Principles of Internal Medicines, 13th Edn., Vol.1, wherein sepsis and septic shock has been elaborately discussed. He also referred to the Essentials of Forensic Medicine and Toxicology by Dr. K.S. Narayan Reddy (4th Edn.) To show how the rapid death may be caused by various types of pneumonitis in which foci of consolidation may not be found at autopsy. In this book also on page 125 he shoed to us "how the septicaemia cropped up and acute infection caused the rapid death in adults."

He also enlightened us that "Gram negative septicaemia may occur without a recognized tissue site of origin. However, more commonly it is secondary to infection in the urinary tract, lungs, peritoneal cavity..." as illustrated in Cecil's Essentials of Medicines, page 540. Dr. Sil also explained to us by referring the Essentials of Forensic Medicine and Toxicology by Dr. K.S. Narayan Reddy (4th Edn.) that the death is of two types (i) somatic, or clinical and 9ii) molecular or celluar.

Somatic death is the complete and irreversible stoppage of vital functions, whereas molecular death means the death of cells and tissues which occurs 3-4 hours after the clinical death.

Upon such clarification by Dr.Sil and after perusal of the entire records and considering the arguments so advanced by the learned advocates of either side it can be said that the treatment so made by the opposite party No.2 and the steps taken by opposite party No.1 to carry out the orders of opposite party No.2 in treating the patient Shankari Chakraborty under the circumstances was proper.

In this connection, we may further mention that complainant has also not been able to substantiate his claim that he paid consideration to opposite party No.2 by producing any documentary evidence.

It is a settled law that "if the complainant is not benefitted by the system, it is his misfortune. In any treatment it is never claimed by the medical profession that every person who receives the treatment must and should be benefitted by the same because the benefits of a particular type of system or operation or medicine depend upon number of factors. Merely because the patient was not relieved from the pain, one cannot jump to the conclusion that the system is bad or that the doctor has not given proper treatmen. If every one has to be benefitted by a particular medicine or operation then nobody will die by disease" as have been held in Ramsingh A. Parmar v. Sampatraj C. Shah, 1994 CCJ 815 (Gujarat).

However, finding no concrete material to substantiate the complaint the Commission held that we hereby dismiss the aforesaid case with the observation that the nursing home authorities should have taken more care in their treatment of patients to avoid misunderstanding and misgivings in the minds of the patients as well as their relatives. So, although the opposite parties are exonerated of the charges leveled by the complainant against them, we award the costs of Rs. 2,000/- to be paid by the opposite party No.1 to the complainant within 15 days from the communication of the order.

RECENT COPRA JUDGEMENTS