Ishan Chandra Das, President
This is an Application U/s 17(1)(a)(i) of the Consumer Protection Act, 1986 where the complainant being the father of Miss Olympia Chatterjee claimed compensation from the Opposite parties to the tune of Rs.98,80,000/- (Rupees ninety eight lakhs eighty thousand) and litigation cost of a sum of Rs.20,000/- (Rupees twenty thousand) alleging medical negligence and deficiency in service on the part of the Opposite parties , the O.P. NO. 1 being Apollo Gleneagles Hospital, the OP No.2 Dr. L.N.Tripati and OP No.3 Dr. B.D.Chatterjee attached to the said hospital.
Briefly stated, the case of the complainant was that the victim Olympia Chatterjee, a daughter of the Complainant aged about 26 years and an employee of Hope Kolkata Foundation, unfortunately met with a road traffic accident and sustained injuries. She was admitted at the OP NO.1/Hospital in the night of 13.9.2009 for undergoing treatment under the OP No.2 Dr. L.N.Tripathi, as the patient sustained injury on her head and right shoulder. At the initial stage, the patient responded satisfactorily to the treatment given to her and accordingly she was shifted to HDU bed No. 179 on 20.9.2009. Subsequently, on 24.9.2009 the patient was shifted to general ward in bed no. 546 as she further satisfactorily responded to the treatment given . There was a surgical operation on her right shoulder on 28.9.2009 which was done satisfactorily, as claimed by Dr.B.D.Chatterjee and she was shifted to general Bed No.541. The patient was recovering satisfactorily during the post operation period and the Doctors suggested/advised on 10.10.2009 to take her home as her further detention was not necessary and on the following day i.e. on 11.10.2009 the patient was scheduled for discharge from the Hospital/OP No.1 and the complainant made payment of all dues and in that morning at about 8.30 a.m. the patient had a talk with her mother over phone intimating that her break-fast was completed and she had been keeping her waiting for the family members’ arrival for returning home. At about 9 a.m. when the complainant and his other relatives reached the main entrance gate of the OP No.1/Hospital to complete all the formalities for releasing the patient, the Hospital authority called upon her mother and informed that the patient was put in ventilation and that her physical condition was very critical. After getting information about the physical condition of the patient , the complainant and his other relatives could not understand what happened to the patient but after enquiry they came to know that after her break-fast when the patient went to the toilet alone not being attended by anybody, though as per advice of the OP NO.3 two attendants were engaged round-the-clock. There was no record in the treatment sheet as to why the patient had to go to the toilet alone and in what state of condition she had been lying in the floor of the toilet and received fresh injury on her teeth of the frontal lower jaw and swelling injury on her lower lip. At about 5 p.m. the complainant found the patient in a stage of ‘Coma’ with the injuries, as stated for which the complainant demanded and insisted the Hospital Authority to convene a Medical Board on 12.10.2009 at about 6.30 p.m. but no information about such meeting was given to the complainant which amounted to negligence. The General Manager, Patient Service Mr. R.Dasgupta on being asked about the matter answered that 24 hours attendants being absent, the patient was left alone and unattended which also amounted to negligence and deficiency in service. There was no record in the treatment sheet that the patient sustained injury in the toilet while she fell down. On 15.10.2009 there was a Medical Board held and the complainant was informed of the deteriorating condition of the patient for which they took decision of tracheotomy operation and C.T.scan etc. On 28.10.2009 the patient was shifted to HDU bed and on 29.10.2009 one Dr.Sukumer Mukherjee opined that the patient though saved but it could be very difficult to come out from the persistent vegetative stage. The Authority of the OP NO.1 insisted the complainant to shift the patient elsewhere and put pressure upon him to pay the bill and could realize a sum of Rs.4,17,000/- (Rupees four lakhs seventeen thousand) from the complainant. The complainant claimed that his family members were suffering from great financial expenditure and mental shock and for which they claimed compensation for a sum of Rs.99 lakh (Rupees ninety nine lakh) and other consequential reliefs.
The Opposite Party No.1/Apollo Gleneagles Hospital filed Written Version on its behalf as well as the other O.Ps. to contest the Complaint Case and contended that the patient Olympia Chatterjee was admitted at the hospital on 13.9.2009 under the O.P.No.2 for head injury and fracture base of skull and under the OPs No.3 for fracture of left humerus. In the said Written Version the O.P.No.1 also admitted that upon the discussion with the Neuro Surgeon it was decided to defer external fixation surgery until the patient improved from her head injury and fracture was temporarily taken due care. The surgery was eventually performed on 28.9.2009 and the process of surgery was uneventful.The Orthopedic team took up surgery under the supervision of the OP No.3 subsequently and the injury was managed by Neuro Surgical team, wound was healed without infection and she was declared fit for discharge from the orthopedic side as the fracture of treatment had been completed, though the patient was to be discharged on 11.10.2009. But unfortunately the patient had a cardio respiratory arrest in toilet prior to discharge on 11.10.2009 and was shifted to ICU and was put on full life support, medical board was constituted, the family members of the patient were explained about the situation. Dr.Sukumar Mukherjee was called on twice and on examination, he found the treatment satisfactory but the complainant was alleging medical negligence on the part of the OPs unjustifiably though a Medical Board was formed to formulate the treatment of the patient. These OPs further stated that the complainant was never forced to shift his patient to Govt. Hospital rather due to paucity of fund he brought the patient to SSKM Hospital, Kolkata on 21.1.2009. Denying the allegation of medical negligence on the part of the OPs, these OPs contended that the complainant claimed a sum of Rs. more than 99 lakh (Rupees ninety nine lakh) without having any justified reasons. The OP No.2 in his separate written version in addition to the above statements stated in the separate Written Version that the progress and recovery of the patient was satisfactory during the post operation period and she was advised on 10.10.2009 by the attending Doctors that she should be taken home as her further detention was not necessary. This OP further explained that during her stay at the ICU the patient was attended by a team of Doctors who took all necessary steps for her speedy recovery and during the absence of the OP No.2 Dr. S.N.Singh, a Consultant Neuro Surgeon of Apollo Hospital looked after her from the neuro surgery side as and when required and she was discharged from the Hospital on 21.11.2009 while the OP No.2 was in abroad. Denying any deficiency in service or negligence in the treatment rendered by the OP No.2 this OP stated in his Written Version and admitted that the victim suffered a set back on 11.10.2009 after her break-fast and while she was ready for going her home on being discharged. Repeatedly denying negligence in the treatment and deficiency in giving adequate service, the OP No.2 in his Written version contended that the victim suffered a cardiac arrest but she revived successfully by the treatment of a team of Doctors and Para medical staff in the ward and she was taken to ICU from her bed. This OP No.2 further contended that the complainant filed a Complaint before the Odisha Council of Medical Registration, Bhubenswar regarding alleged unethical practice of the OP No.2 but could not come out successful in proving the guilt of the OP No.2 and ultimately he prayed for dismissal of the Complaint case with costs.
Ld. Counsel for the complainant in course of hearing drew our attention to a series of treatment papers concerning the treatment of the patient right from the date of her admission at the OP No.1/Hospital and tried to impress that the daughter of her client did not get adequate service though he paid considerable amount to the Hospital Authority as well as the Doctors. It is not disputed that the victim Olympia Chatterjee met with the road traffic accident on 13.9.2009. She was treated by the OPs/Doctors who rendered adequate medical help for recovery of the patient. It is also evident from the pleadings of the parties that two sets of doctors were treating the patient one for neurological developments, whereas the other team was looking for the Orthopedic side. The patient was about to be discharged on the date of event i.e. on the date of her discharge while she was preparing for leaving the hospital and went to the toilet alone where she suffered a major set back being attacked by the cardiac arrest. The materials on record also revealed that the patient was initially treated by the Doctors of the OP No.1 and subsequently the patient was discharged from the hospital as the father of the patient could not continue his daughter’s treatment in the Apollo Gleneagles Hospital due to insufficiency of fund and the patient was referred to SSKM Hospital, Kolkata . It is also admitted that the patient succumbed to the injury after her long stay in the stage of ‘Coma’.
Undoubtedly, the death of the victim is an unfortunate incident . It is admitted by the Complainant that his daughter succumbed to the injury after a prolonged suffering and he claimed compensation to the tune of Rs.99 lakh (Rupees ninety nine lakh) including cost of litigation. Ld. Counsel appearing for the complainant in course of hearing pointed out that the complainant lost his daughter and his mental agony cannot be compensated by any costs but at the same time he submitted that his client would be entitled to the compensation as prayed for due to the deficiency in proper care to the patient by the Hospital Authority/OP No.1 and not rendering proper medical treatment and causing the victim’s death. Such an allegation against the Hospital/Doctors was counter-acted by the ld.Counsel appearing for the OPs. It was submitted by him that the complainant filed an application alleging medical negligence against the doctors as well as the Hospital and requested the Odisha Council of Medical Registration, which was disposed of on 16.6.2012 with a finding that there was no unethical practice by Doctor L.N.Tripathy, the OP No.2. The complainant also filed a complaint against the OPs before the Medical Council of India which was disposed of on 21.8.2014 with the following observations :-
“The Ethics Committee considered the appeal filed by Sri Pranabesh Chatterjee against Dr. L.N.Tripathy and Dr. B.D.Chatterjee of Apollo Gleneagle Hospital , Kolkata .The summary of the complaint are as under :-
“patient Ms.Olympia Chatterjee was admitted in Apollo Gleneagle Hospital Kolkata on 13.09.2009 after a road accident with head injury and multiple traumas under the care of Dr.L.N.Tripathy and Dr. B.D.Chatterjee. During the treatment she had recovered and on 11.10.2009 she again suffered a massive set back and sent to ICU in critical condition. Dr. Sukumar Mukherjee, Physician (Medicine) examined the patient twice and advised the management of the hospital for taking corrective measures to save the life of patient at first , which he observed deficient on their action taken. The patient was there till 21.11.2009.
After that patient admitted in S.S.K.M. Hospital , Kolkata on 21.11.2009 where she had undergone a long treatment till 09.09.2010. Patient lying at home in same coma condition with the support of different life support equipments since 09.09.2010 having no neurological improvement and died in January 2013.”
The Ethics Committee noted that both the parties i.e. Appellant, Sh.Pranabesh Chatterjee and Respondents Dr.B.D.Chatterjee and Dr.Dipankar Ganguly (Air MSHL (Retd) CEO, Dr. Saibal Mukherjee, Dr. Jay Bary of Apollo Gleneagle Hospital, Kolkata have appeared before the Ethics Committee for hearing.
The Ethics Committee heard the deposition of both the parties in detail and deliberated on the issue and found no medical negligence on the part of the treating doctors”.
Here the factual aspects of the matter are not at all disputed. The factum of road traffic accident causing serious injury to the victim, treatment by the OPs at the hospital, OP No.1 were also categorically admitted by the parties.
Now the fact remains whether the OPs were negligent in treating the patient and failed to provide adequate service as agreed between the complainant and the OPs. The complainant once wanted to take shelter of the Odisha Council of Medical Registration and Medical Council of India and prayed before the Authority concerned to take action against the erring Doctors who were claimed to be responsible for death of the victim. The Medical Council of India in its finding opined that there was no medical negligence on the part of Doctors of the OP No.1.
From a critical analysis of the facts and circumstances of the case, it appears to us that the patient suffered from a serious road traffic accident on the date of alleged incident and she was admitted to the Hospital /OP No.1 under the O.Ps No. 2 and 3, for Neurological and Orthopaedic treatment. From the series of events concerning treatment of the patient, it appears to us that the patient was given proper care in her treatment and
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on the date of discharge, after satisfactory progress in her condition the patient suffered a major set back i.e. Cardiac arrest for which she had to suffer and ultimately she was in a stage of ‘Coma’ for a pretty long time till she succumbed to her injuries. Ld. Counsel appearing for the OPs relied on a decision of the Hon’ble National Commission in Sikha Nayak –Vs- Dr. Manabesh Pramanik reported in 2006, CTJ , 662 (CP) (NCDRC) and submitted that as per said verdict, Hon’ble National Commission held that a case of medical negligence has to be proved by proper medical expert’s evidence and it cannot be based on mere statements of the patient or his/her relatives. With reference to another decision of the W.B.State Commission in Dr. Dwijadas Som Vs. Krishna Hazra , reported in 2005 C.T.J. 921 (CP) (SCDRC) he emphatically submitted that simply because a patient succumbs to his ailment cannot be presumed that the Doctor treating him was guilty of medical negligence. Hence, placing reliance on the above decisions of the Hon’ble National Commission and the W.B.State Commission in the light of observations of the Medical Council of India, passed by it on the strength of the application of the complainant, as quoted above, we are unable to accept the allegations against the OPs for treating the patient in a negligent manner. Sudden cardiac arrest of the patient in the lavatory cannot be construed as ‘deficiency in service’ . Hence, we dismiss the Complaint Case. We do not pass any order as to the costs.