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Dr. Dilip Pahari v/s Andrew Francis & Others


Company & Directors' Information:- T. FRANCIS & COMPANY PRIVATE LIMITED [Strike Off] CIN = U71301DL2011PTC228845

    First Appeal No. A/399/2019

    Decided On, 03 March 2020

    At, West Bengal State Consumer Disputes Redressal Commission Kolkata

    By, THE HONOURABLE MR. JUSTICE ISHAN CHANDRA DAS
    By, PRESIDENT
    By, THE HONOURABLE MRS. SAMIKSHA BHATTACHARYA
    By, MEMBER & THE HONOURABLE MR. SHYAMAL KUMAR GHOSH
    By, MEMBER

   



Judgment Text


Ishan Chandra Das, President

These three Appeals i.e. (A/399/2019, A/400/2019 A/406/2019) arose out of the common Judgement and Order dated 3/4/2019 passed by ld. D.C.D.R.F., South 24-Parganas at Baruipur in C.C. 152 of 2015 where ld. Forum concerned while disposing of the said Complaint case allowed it on contest against the OPs with cost of Rs.10,000/- (Rupees Ten thousand), held them liable to pay, jointly or severally, a sum of Rs.15 lakh (Rupees fifteen lakh) including cost of treatment of the patient and compensation for physical and mental harassment of the complainant out of which Rs. 13 lakh (Rupees thirteen lakh) would be paid to the complainant and the balance amount to be deposited in the Legal Aid Account of the Forum concerned.

Being aggrieved by such Judgement and Order dated 3/4/2019 , three separate Appeals have been filed by the Opposite Parties/Appellants herein i.e. the OP No.1 , Dr. Sanjay Mondal of Medica Super Speciality Hospital preferred the Appeal being A/406/2019, the OP NO.2 Dr. Dilip Pahari preferred the Appeal No. A/399/2019 whereas the Superintendent of Medica Super Speciality Hospital preferred the Appeal No. A/400/2019.

The case of the Complainant/Respondent, who is being the Respondent of all the appeals, was that he filed the instant Complaint Case being C.C./152/2015 before ld. D.C.D.R.F. 24 Parganas (South) at Baruipur claiming compensation of a sum of Rs.15 lakh (Rupees fifteen lakh) and other consequential reliefs alleging that his sister late Barbara Ghosh was admitted to the Medica Super Speciality Hospital on 30.12.2014 at 3.45 p.m. for surgical management and removal of stent which remained in situ in her abdomen since 2012, after ERCP (Endoscopy Retrograde Cholengio Pancreatography) operation due to CBD (Common Bile Duct) Stone in her abdomen and was admitted under Dr. Sanjay Mondal, (OP No.1) of GI Surgery Deptt. of the Hospital (OP No.3) as an indoor patient in the General Ward, duly referred by Dr.Chandrima Dasgupta, a Gynecologist, as the patient was feeling pain in her abdomen. The OP No.3 on 9.12.2014 examined the patient and advised for removal of the stent which remained in situ from 2012 along with removal of the stones. Dr. Mondal also advised for undertaking several pathological tests and other medical examinations including MRCP before surgery. The patient went to the OP’s Hospital on 9.12.2014 for her medical tests and examinations including X-ray and different blood tests and on 11.12.2014 after getting those reports the complainant along with her sister-in-law paid a visit to the OP no. 1/Dr.Mondal once again and after examination of those reports, the Doctors suggested for surgery with endorsement “need surgery” over the prescription and directed the patient party to meet him on 30.12.2014 as he would not be available in the intervening period and it was advised for surgery after that period. The Doctors estimated the cost of surgery of Rs.1,20,000/- (Rupees one lakh twenty thousand) . Accordingly on 30.12.2014, the patient went to the OP’s hospital with her another sister at about 3.45 p.m. and got herself admitted there as an indoor patient in Bed No. 588, as Dr. Mondal wrote in the prescription “admit”. The patient was apparently looking quite normal and there was no serious physical complaint from her. She changed her dress and put on the hospital dress by herself. She was talking normally and the complainant and other relatives left her in the Hospital bed. On the next day when one of the relatives of the complainant went to the Hospital, she was informed that the patient was shifted to CCU ward, bed no.10 at 8 a.m. and her condition was very critical. The Hospital Authority did not take any formal consent from the relatives of the patient. The complainant became surprised to know how the condition of the patient became critical within a few hours and she had to put with ventilation support. On getting information, the complainant went to the Hospital with his other relatives and met the officials of the Hospital Authority namely Sampad Saha who behaved very rudely and pressurized them to deposit a sum of Rs.1,30,000/- (Rupees one lakh thirty thousand) immediately otherwise they threatened to stop treatment of the patient. The patient took admission in the said Hospital only for her CBD operation and for taking out the stent which was inside her abdomen since 2012 and for removal of those stones from the bile duct which was creating obstruction in the said path where approximate estimation was verbally given by the OP/Doctor around Rs.1,20,000/- (Rupees one lakh twenty thousand). The complainant was shocked to see the condition of the patient only after a few hours after her hospitalization where cholangitis developed followed by septicemia , multi organ failure and ultimately reached the stage of Coma but the Hospital Authority was interested to extort money from the patient party. The condition of the patient became so serious within a few hours only due to the negligence of the OPs which compelled the complainant to take discharge of her sister on 2.1.2015 and shifted her to another Nursing Home Arogya and Maternity Nursing Home of their locality wherein the patient died on 3.1.2015. It is alleged by the complainant that at the time of admission in the Hospital for operation, the patient was quite normal. It was a planned operation and she had some complain associated with mild abdominal pain but within a few hours after hospitalization her condition worsened due to the treatment given by the OP/Hospital in a very negligent manner. The patient went to the OP No.1/Dr.Mondal for the first time on 9.12.2014, completed all the pathological tests on 11.12.2014 and the reports were shown to the OP No.1 on 12.12.2014. But as the Doctor/OP NO.1 was not available, she waited for him and came to the Hospital again on 30.12.2014 and got herself admitted there for surgery but the treating Doctor/Surgeon did not warn about the risk associated with the delay and she waited for his return till 30.12.2014. The Hospital Authority/OP NO.3 shifted the patient to CCU-1, bed no.10 at 8 a.m. after her admission and put her on ventilation, started dialysis but they did not inform or did not take prior formal consent from the near relations of the patient. The complainant further alleged that the patient was quite normal and she was admitted to the Hospital for a planned operation and as she was not a regular diabetic patient and did not take medicine for that her sugar level were detected slightly higher i.e. 129 mg/dl on 12.12.2014 for the first time as the Doctor did not prescribe any medicine on that day. The complainant further alleged that the patient did not have any previous history of chronic kidney disease but the patient was given dialysis on different times of 1.1.2015 and thereafter for 15 hours but the Hospital sheets continuing the details of dialysis were not signed by the Doctor and it was not properly filled up with a lot of over-writing. The dialysis sheet showed that three dialysis were conducted after taking on line consultation from Dr. D.Pahari but the procedural charges had been taken for four times which established adoption of ‘unfair trade practice’ though the condition of the patient was more critical. The complainant also alleged that the Doctors and the management of the Hospital acted in a negligent way for the dialysis as the Doctors involved in such procedure of dialysis did not put their signatures in the dialysis sheet which proves lack of taking reasonable care and they did so in a casual manner for extorting money by unfair means . In the Discharge certificate it was incorporated under sub-head ongoing medicine that zanocin 200 mg 1v but no such drug has been noted in the list of medicines which is a clear proof of non-administration of such medicine on the patient. It was stated in the Petition of complaint that the condition of the patient was gradually deteriorating but the Hospital Authority was pressurizing him to pay huge amount of money and the Hospital Authority was behaving as a commercial business centre . The complainant requested the Hospital Authority to explain the line of treatment chosen for the treatment of the patient but the Hospital Authority instead of cooperating with the patient party, when the patient felt pain on 16.12.2015 she was brought to SSKM Hospital where the ERCP was done and the stent was fixed in her abdomen and the Doctors, who gave her some medicines to get immediate relief, fixed the date of exchange of stent on 20.1.2015 and at that point of time the Doctor opined that there was no cholangitis . The condition of the patient became very critical within a few hours after Hospitalisation and she was put on ventilation where she was given dialysis for 21 hours for four times starting from 9 p.m. of 1.1.2015 to 11.45 of 2/1/2015. No operation was undertaken though the Hospital Authority realized a sum of Rs.16,586/- (Rupees sixteen thousand five hundred eighty six) for using surgical consumables . The complainant produced certain documents to prove that the Hospital Authority and the Doctors were negligent and it would be proved from a perusal of the said self-explanatory documents which prompted the complainant to take recourse of the D.C.D.R.F. concerned claiming reliefs, as prayed for in terms of his Petition of Complaint.

All the three Opposite Parties therein filed their separate Written versions to contest the Complaint case and contended that the Complaint case was not maintainable in the facts and circumstances of the case. It was further claimed that the Complaint Case was bad for defect of parties. Denying the cause of action, as averred in the Petition of complaint, the OP No.1 in his Written Version stated that the patient Barbara Ghosh was clinically examined by him on 9.12.2014 for the first time and after such clinical examination, this OP advised the patient for certain investigations and the patient was advised for surgery of cholecystectomy with CBD . He also stated that as per requirement of the patient parties, the OP No.1 disclosed that the patient’s underlying cirrhosis would not be cured with the procedure of surgery, as referred to but it would be for removal of stones and bypass made for the flow of bile and not the cirrhosis which could only be cured by undertaking a liver transplantation. It is also disclosed in the said Written version of the OP NO.1 that on 30.12.2014, the patient turned up with complaints of pain in the right hypochondriac region and nausea and seeing the patient in poor condition the OP No.1 immediately got herself admitted for further management but after admission on 30.12.2014 , the treating Doctors found that the problem of the patient was much more complicated though it was found that she was not fit for surgery. The OP No.1 in his Written version also disclosed that after initial evaluation of the patient, it was decided that the patient would be shifted to the High Dependency Unit/Coronary Care Unit (HDU/CCU) on the same day for better monitoring and antibiotics were advised along with intra-venous fluids and she was referred to Dr. P.K.Sethi for UGI endoscopy and ERCP but as the general condition of the patient was poor having respiratory problem, she was referred to a Pulmonologist. On 31.12.2014 the patient was examined by Dr. P.K.Sethi who planned for ERCP and stent change but in view of the worse general condition, the ERCP was with-held pending further improvement of the patient. In the said Written version the OP No.1 further stated that Dr. D.K.Pahari, the OP No.2 herein had advised for dialysis on account of profound acidosis, low urine output and rising creatinine. Antibiotics were upgraded, dialysis was carried out and the patient was transfused with Fresh Frozen Plasma to correct the coagulation parameters but the condition of the patient continued to worsen . But on 2.1.2015 the patient party got the patient discharged against the medical advice and no further treatment could be carried out by the OPs.

The OP NO.2 in his separate Written version stated that the patient had developed lactic acidosis and subsequently after taking consent for dialysis from the relative of the patient, he had started the dialysis on 31.12.2014. Denying the allegation of extorting money and exploiting the patient party by unfair means as alleged, this OP NO.2 denied all other allegations as contained in the body of the application regarding negligence.

The OP No.3 in its separate Written Version supported the statement as contained in the Written Versions by two Opposite Parties and denying the allegation of negligence in discharging his duties and services, the OP NO.3 also prayed for dismissal of the Complaint case, as the instant Petition of complaint did not make out a case which can be termed as negligence in true sense of the term and ultimately all the OPs prayed for dismissal of the said Complaint case.

Now the point for consideration is whether ld. D.C.D.R.F. was justified in passing the order impugned and directing the OPs to pay compensation of a sum of Rs.15 lakh (Rupees fifteen lakh) and cost of Rs.10,000/- (Rupees ten thousand).

The factual aspects of the matter i.e. treatment of the patient in the OP NO.3/Hospital by the OPs No.1 and 2 Doctors are not disputed. Rather it is admitted that the complainant brought her sister to the said OP No.3 Medica Super Specialty Hospital for her effective and proper treatment.

Ld. Counsel appearing for the Appellants/OPs (and hereinafter referred to as the OPs ) in course of their respective arguments submitted with reference to the records of medical treatment that the patient Barbara Ghosh , a 67 year old lady paid visit to the Appellant/Medical Super Specialty Hospital on 9.12.2014 for the first time and she was advised for certain investigations and tests where it was detected that the patient was suffering from cirrhosis of liver, portal hypertension with Hepatitis B Virus (HBV positive). It was brought to our notice that the complainant in its Petition of complaint/Respondent herein ( and hereinafter referred to as the Complainant) that she had been diagnosed to have stones in Common Bile Duct since 2008 and had undergone an Endoscopic Retrograde Cholangio Pancreatography (ERCP) in 6.2.2012 for which a stent was set inside her for more than 24 months. Drawing our attention to the factual aspects of the matter as per Petition of complaint, it was submitted before us that the stent lying inside, are normally allowed to remain in a place for a maximum period of three months and if it is not removed after three months there was every possibility for the stent to get blocked and subsequently infection in the form of fulminant cholangitis to develop and in the instant case the patient was negligent in not getting the stent removed, even after 24 months.

A plain reading of the Petition of complaint clearly reveal that the patient Barbara Ghosh was advised for surgery and it was categorically stated in the prescription the nature of surgery required was “cholecystectomy with CBD exploration with RYJH or without access loop”. With reference to the statement as contained in the Written version of the OP NO.1/Dr.Sanjay Mondal , it was submitted that the relatives of the patient asked the Appellant (of A/406/2019) i.e.OP No.1 whether the surgery would fully cure the patient to which it was replied by the OP No.1 that the patient’s underlying cirrhosis would not be cured with the procedure of removal of stent but that procedure would only remove stones and bypass made for the flow of bile and it was clearly explained to the patient party that the cirrhosis would only be cured by undertaking liver transplantation.

So far as the defence of the OP No.2 Dr. Dilip Kumar Pahari is concerned, the OP No.2 stated in his Written Version that he examined the patient in the morning of 31.12.2014 and his findings were presence of cholangitis suggested by fever and jaundice , sepsis suggested by increased leucocyte counts and decrease of urine volume with rise of creatinine from 1 mg/dl to 6 mg/dl, suggesting a diagnosis of acute kidney injury and therefore the OP No.2 suggested transfer of the patient to a Critical Care Unit where she required inotropic drugs to increase her blood pressure along with assisted ventilation. He also observed that, as the creatinine was increasing very fast and she was likely to develop other complications of acute kidney injury and sepsis, requirement of dialysis was very high and denied the allegation of over billing, alleging false bills without having dialysis for the specified time.

The Op No.3/Medica Super Specialty Hospital herein in its Written version categorically stated that the patient/elder sister of the complainant was suffering from pre-existing ailments and was under medical supervision in this OP NO.3/Hospital where her treatment was undertaken by the Doctors concerned but the Hospital Authority was not aware of the planned surgery at a cost of Rs.1,20,000/- (Rupees one lakh twenty thousand) which included cost of surgery and hospitalization. All the OPs in their respective Written version as well as in their respective evidence on oath denied medical negligence , deficiency in service or unfair trade practice, and contended that those were the basic needs of treatment of a patient and absence of any such essence would lead to medical negligence and for claiming compensation from the Doctors or Hospital, who are held responsible for the same.

Now we have to consider whether the allegations brought against the Doctors and the Hospital Authority, as raised by the complainant was justified or not.

In this context we have to consider the Expert’s Opinion concerning treatment of the patient which are quoted below :-

"Medical Board consisting of following members ( as per Memo No. SSKM/MSVP/635/2016) had gone through the bed head ticket and other relevant documents supplied and came to the following conclusions –

1. The patient was suffering from (a) Hepatitis B viral infection (b) choledocholithiasis for which she received severe endoscopic procedures at SSKM Hospital (No document available) [between 2006 to 2012].

(c) She had evidence of obstructive jaundice because of stent blockage and choledocholithiasis.

(d) developed cholangitis and sepsis after admission and subsequently developed multi-organ failure and rightly shifted to ICU and treated adequately.

(e) She also had diabetes and hypertension (evident from the discharge certificate).

(f) She had no evidential support of having pre-existing renal disease.

Board Members concluded :

i. There was no evidence of medical negligence by the treating doctors.

ii. They followed the standard treatment protocol in treating the patient.

iii. Barring the treatment given, no other treatment is advisable in this case.

iv. Treating Doctors applied reasonable skill and care in treating the patient.[as evident from the documents supplied to us]

v. So, no question of medical negligence arises in this case.

If the report of the Experts in the light of the catena of the decisions of the Hon’ble National Commission as well as the Hon’ble Supreme Court, it appears to us that the Doctor or the Hospital Authority cannot be straightway held responsible for the patient’s treatment or death , particularly when the Experts’ Committee in its report exempted the so-called erring Doctors or the Hospital Authority from their liability. Hon’ble National Commission in Girish Chandra V.Bhatta & Ors –Vs- Sterling Hospital reported in 2018(2) CPR 296 (NC) held that mere averment in the complaint by no stretch of imagination be said to be evidence by which the case of the complainant, to be proved and it is obligatory on the part of the complainant to provide the facta probanda as well as facta probantia . The Hon’ble Supreme court in Kusum Sharma –Vs- Battra Hospital and Medical Research Centre reported in (2010) 3 SCC 480, observed that “the normal human tendency to pick fault whenever there is a death in the family for which the Doctor cannot be made a scapegoat. It is a matter of common knowledge that after happening of some unfortunate events there is a marked tendency to look for a human factor to blame”.

Ld. D.C.D.R.F. in the impugned judgement simply quoted the allegations against the Doctor without properly appreciating the report of Experts, rejected the same with the observation that the Medical Board assumed to role of court of law and left no stone unturned to give clean chit to their fellow brothers. But we do not concur with the views expressed by ld. D.C.D.R.F. particularly when the complainant instead of establishing his allegations, prayed for compensation for causing enormous physical and mental damage, expense and litigation cost, as pointed out by ld. Counsel for the OP NO.3. We have already observed that the Op No.1 categorically stated in the prescription, the nature of surgery required for cholesystectomy and it was also explained to the patient party that the patient would not be f

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ully cured as she was suffering from cirrhosis of liver and mere removal of stent from the Bile Duct would not cure the patient particularly when she came to such removal at a belated stage, as pointed out by ld.Counsel for the OPs No.1 and 2/Doctors. Hon’ble Apex Court in Jacob Mathew –Vs- State of Punjab reported in (2005) 6 SCC 1, held that a medical practitioner faced with emergency ordinarily tries his best to redeem the patient out of his suffering. He does not gain anything by acting with negligence or by omitting to do an act. Obviously, therefore, it will be for the complainant to clearly make out a case of negligence before a medical practitioner is charged with……………. A surgeon with shaky hands under fear of legal action cannot perform successful operation and a quivering physician cannot administer to end dose of medicine to his patient. It was further observed by the Hon’ble Apex Court in Jacob Mathew (supra) that a mere deviation from normal professional practice is not necessarily evidence of negligence. Let it also be noted that a mere accident is not an evidence of negligence, so also an error of judgement on the part of professional is not negligence per se. If we consider the facts and circumstances of the case , the allegation of the complainant against the OPs herein in the light of the decision of the Hon’ble National Commission as well as Hon’ble Apex Court as quoted above, we are of the view that ld. D.C.D.R.F. was not justified in rejecting the report of the Experts and without showing cogent reason and simply because the fellow Doctors were facing trial cannot be the ground for rejection of the opinion of Experts, that too of different Hospital. The Forum or the Commission cannot constitute itself into an Expert Body and contradict the statement of doctors unless there is something on record by way of expert’s opinion or there is any medical treatise on which reliance could be based (Ref. Harkan Waljit Singh Saini Vs. Gurbox Singh & Anr. reported in 1(2003) CPJ 153 (N.C.) In the background, having regard to the facts & circumstances of the case we find merit in the Appeals which are allowed, the judgement and order passed by ld. D.C.D.R.F. in C.C. 152/2015 are set aside resulting that the Complaint Case being C.C. 152 of 2015 is dismissed. Parties do bear their respective costs of Appeal.
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11-04-2016 C. Ponnian Versus A. Francis Durai Before the Madurai Bench of Madras High Court
04-04-2016 P.J. Francis Xavier Versus The Chief General Manager (Telecom) Bharat Sanchar Nigam Ltd. Central Administrative Tribunal Ernakulam Bench
04-04-2016 P.J Francis Xavier Versus The Chief General Manager (Telecom) Bharat Sanchar Nigam Ltd. Kerala Circle, Trivandrum & Others Central Administrative Tribunal Ernakulam Bench
17-03-2016 Francis Thomas Gonsalves & Others Versus Sanjay Naik National Consumer Disputes Redressal Commission NCDRC
11-03-2016 State of Kerala Represented by the Secretary & Another Versus M.C. Francis & Another High Court of Kerala
29-02-2016 M.C. Francis Versus State of Kerala, represented by The Secretary, Transport Department & Others High Court of Kerala
08-02-2016 T. Boby Francis, Managing Director, Shelter Finance & Chitties Limited Versus Lucy Varghese High Court of Kerala
18-12-2015 Francis Cyril C Cunha Versus Lydia Jane D?Cunha High Court of Karnataka
27-11-2015 Francis Anthonimuthu Appulonappa & Others Versus Her Majesty The Queen Supreme Court of Canada
20-11-2015 State of Kerala, represented by The Secretary to Forest & Wildlife Department & Others Versus J & J Minerals Private Limited, represented by its Director, Simon K. Francis & Others High Court of Kerala
03-11-2015 A. Francis Versus The Sub Registrar, Mannachanallur Sub Registrar's office, Mannachanallur, Tiruchirappalli District Before the Madurai Bench of Madras High Court
15-10-2015 Francis Salaysia Versus State, rep.by Deputy Superintendent of Police, Thanjavur District & Another Before the Madurai Bench of Madras High Court
08-10-2015 P.F. Joseph @ Joseph Francis Versus State of Kerala, rep. by Public Prosecutor & Another High Court of Kerala
06-10-2015 Finy Susan Francis Versus Binu Philip Paul High Court of Kerala
29-09-2015 Mabel Treeza Pinto Versus Francis Pinto High Court of Karnataka
07-08-2015 Saint Francis Hospital Beawar Road, Ajmer Versus Kamla & Another National Consumer Disputes Redressal Commission NCDRC
08-07-2015 Elsy & Others Versus Francis & Others High Court of Kerala
22-06-2015 State (Through Range Forest Officer Netrawal ? Goa) Versus Francis Masrenhas, (Major) In the High Court of Bombay at Goa
04-06-2015 Her Majesty The Queen Versus Paul Francis Tatton & Another Supreme Court of Canada
29-04-2015 Joseph Lopez Versus Francis Lopez & Another High Court of Karnataka
13-04-2015 R. Suresh Kumar Versus Francis Tamil Nadu State Consumer Disputes Redressal Commission Chennai
06-04-2015 The Chief General Manager (Telecom) Chennai Telephones & Others Versus M. George Francis & Another High Court of Judicature at Madras
06-04-2015 A. Francis Versus Sabitha, Secretary to Government, School Education Department Before the Madurai Bench of Madras High Court
31-03-2015 Francis D?Souza Versus Syndicate Bank, Manipal, Udupi District High Court of Karnataka
20-02-2015 K.L. Francis Versus The Kerala State Road Transport Corporation, Thiruvananthapuram, rep. by its Managing Director & Another High Court of Kerala
11-12-2014 Francis T. Chacko Versus T.K. Sajeevan Proprietor, Span Travels Kochi & Another High Court of Kerala