The instant complaint under Section 17 (inadvertently mentioned under Section 12) of the Consumer Protection Act, 1986 (for brevity, ‘the Act’) is at the instance of a son and wife respectively on account of death of one Nirmal Sarkar on the allegation of medical negligence on the part of AMRI Hospitals, Salt Lake (Opposite Party No.1) and the doctors of the said hospital, who treated the patient (Opposite Party No.2 to 5).
In a capsulated form, Complainants’ case is that on 16.09.2011at 12:50 P.M. the patient was admitted in the OP No.1 Hospital with the complaint of chest pain and respiratory problem under OP No.2. The patient was placed at ICCU and treated with medications, viz. – Beta Blocker, Aspirin, Tirofiban etc. without requisite clinical examination. On the following day, the complainant no.1 was informed of propose oral and renal bleeding consequent to administering injection ‘Tirofiban’ last night followed by complete renal failure of the patient. The patient was kept under mechanical ventilation and haemodialysis was started on the advice of OP No.4. The complainants have stated that the reasons for such abrupt worsening conditions of the patient has been stated by ICCU in-charge and OP No.2 that the patient had pre-history of poor renal function but at the time of admission, the OP No.1 hospital did not mention the poor renal function. The complainants have also stated that even if such theory of pre-existing disease is accepted, the OPs administered injection ‘Tirofiban’ without caution or care as would be evident from scientific study of documents on use of the medicine. The complainants have also stated that the treatment given to the patient till 20.09.2011 did not improve the condition. The clinical examination like measurement of coagulation, parameters and platelets were done together with upper GI endoscope and a bleeding polyp in oesophagus was detected and other support system and the patient had to be put on life support system and other support system i.e. ventilation continuously for eight days to regain the consciousness. The complainants have alleged that the use of drag ‘Tirofiban’ on the patient triggered and almost irreversible damage to the patient which ultimately caused an injury leading to the death of the patient on 01.10.2011. On that day, the patient was discharged on Risk Bond and the patient was admitted at Charnok Hospital at VIP Road, Kolkata at 8:59 P.M. where the patient breathed his last at about 11:45 P.M. The complainants have categorically stated that OP No.1 is solely responsible for lack of mis-management of patient arising from deficient medical service and OP Nos. 2 to 5 are responsible for failure to use due skill in diagnosis and resultant wrong treatment. Hence, the complaint with prayer for several reliefs, viz. – (a) refund of Rs.4,33,555/- realised by OP No.1 Hospital; (b) refund of an amount of Rs.2,00,000/- against incidental charges; (c) compensation of Rs.92,00,000/- for physical and mental harassment and (d) cost of litigation of Rs.1,00,000/-.
The Opposite Party No.1 by filing a written version has stated that the patient was admitted to Charnok Hospital Private Limited on 15.09.2011 with severe compressive chest pain with excessive sweating and shortness of breath and the patient had history of hypertension, ischemic heart disease, chronic obstructive pulmonary disease and hyper Uraemia. The OP No.1 has stated that the patient was treated conservatively and was discharged for treatment to any Tertiary Care Centre for better management – urgent coronary angiography and the patient was discharged with Foly’s catheter and IV Canula in Situ and as per record, the patient was getting injection Clexene 60mg S/C twice daily, tablet Clopitab A(75) 1 tab once daily with other medications and as per history, patient had history of regular intake of alcohol. On 16.09.2011 the patient was admitted in the hospital at 12:05 A.M. and at 1:00 A.M. the patient was seen by Critical Care Consultant and Dr. Susrut Bandyopadhya has started Tirofiban infusion dose. At about 7:15 A.M. the duty medical officer noted bleeding in urinary catheter and the patient was put into medical ventilator. Injection Tranx was given to counteract bleeding. The patient was reviewed by consultant Nephrologists. As the condition of the patient had not been improved and further became critical, the complainant no.1 got the patient discharged from the hospital on 01.10.2011. The OP No.1 had stated that there was no negligence on the part of them and the instant complaint has been filed just to extort money from the hospital authority.
The Opposite Party No.2 by filing a written version has stated that being a doctor of OP No.1 Hospital having specialisation in Cardiology the patient was referred to Dr. Susrut Bandyopadhyay, In-Charge of Critical Care Unit of OP No.1 Hospital who examined the patient and conducted ECG and Echo Cardiogram, and such ECG had shown S.T. Depression V4 to V6, the Echo Cardiogram showed dilated left ventricle and hypokinetic anterior wall, apex and lateral wall of left ventricle. Dr. Bandyopadhyay after examining the patient prescribed for certain medicines including Tirofiban injection. The OP No.2 has stated that he examined the patient along with Dr. Bandyopahyay and having considered the suggestions of Dr. Bandyopadhyay given earlier added one medicine EPTUS considering the condition of the patient. The OP No.2 has submitted that inspite of treating the patient to the best of his ability, skill and experience and following the standard medical norms, the patient had expired after he was discharged and as such the complaint should be dismissed against him.
The Opposite Party No.3 being the doctor of OP No.1 Hospitals having specialisation in Gastroenterology has stated that on 16.09.2011 and 17.09.2011 he clinically examined the patient and the said treatment was done by him to the best of his ability, skill and experience following the standard medical protocol and the patient had expired after discharge of him against medical advice.
The Opposite Party No.4 being the doctor of OP No.1 Hospitals having specialisation in the field of Nephrology has stated that the patient treated under him has disclosed only some of the papers but have suppressed/concealed/withheld many other treatment papers. On 17.09.2011 he examined the patient and opined that patient was having Acute Renal Failure (ARF) following shock. The OP No.4 has also stated that the patient had multiple medical problems and overall poor prognosis and as such he suggested haemodialysis.
The Opposite Party No.5, the another doctor of the Hospital has stated that the petitioners had never contacted him for acquiring any professional service and as such never had any contract or arrangement of service with him. The OP No.5 has submitted that as there has been no act of negligence or deficiency on the part of his treatment, the complaint deserves to be dismissed on merit.
The parties have tendered evidence though affidavit. They have also filed reply against the questionnaire set forth by their adversaries. Both the parties have relied upon several documents in support of their respective cases. The parties have also filed brief notes of arguments in support of their case.
Undisputedly, Prasanta Sarkar, who passed away on 01.10.2011 was the father and husband respectively of the complainants. Evidently, on 16.09.2011 the patient was admitted in ICCU of OP No.1 Hospital. Prior to that on 15.07.2011 the patient was treated by OP No.2 for the first time in the OPD of OP No.1 Hospital for a typical chest pain. The patient had been suffering from diabetes, hypertension and hypothyroid, was advised to undergo coronary angiography. However, the patient did not turn up before OP No.2 till he was admitted on 16.09.2011.
In the petition of complaint, the complainants did not aver prior to admission where the patient was treated or how the treatment of the patient was going on. In fact, on 16.09.2011 the patient was admitted under OP No.2 after having chest pain and anterior wall MI and being treated for 14 hours in another hospital. He had multiple medical problems and his clinical condition deteriorated due to massive heart attack. In this regard, the Medical Superintendent of OP No.1 Hospital has observed that such a massive heart attack could have been prevented, had CAG been done when it was advised two months back.
Though the complainants did not divulge about treatment at Charnock Hospitals Pvt. Ltd. at VIP Road, however, from the Bio-chemistry report of the patient dated 15.09.2011 clearly speaks that on the relevant date on examination, the serum creatinine of the patient was found 2.4 and blood urea 76 which are apparently on higher side indicates malfunctioning of kidney.
In any case, on the date of admission, it was found that the pulse rate of the patient was high (120/min.). The patient was suggested blood test and some other tests. The patient was referred to Dr. Susrut Bandyopadhyay, In-Charge of Critical Care Unit of OP No.1 Hospital, who examined the patient and conducted ECG and Echo Cardiogram. Such ECG had shown S.T. depression V4 to V6. The Echo Cardiogram showed dilated left ventricle and hypokinetic anterior wall, apex and lateral wall of left ventricle. The evidence on record clearly speaks that Dr. Bandyopadhyay prescribed for certain medicines including inj. Tirofiban. Thereafter, on several occasions the patient was treated by OP No.2 and OP No.3. The OP No.4 along with Dr. Bandyopadhyay found the condition of the patient deteriorated and OP No.4 has opined that patient was having acute renal failure (ARF) following shock. He has opined that the patient had multiple medical problems and overall poor prognosis. He also suggested for haemodialysis which was performed on 17.09.2011 at 10:20 P.M. which was continued till the morning of the next date. In the process, when the condition deteriorated, the OP No.2 along with Dr. S. Bandyopadhyay examined the patient and put him in BIPAP. The fact remains that on 01.10.2011 OP No.2 along with Dr. Susrut Bandyopadhyay examined the patient and prescribed further medicine and treatment. However, on the same date, the relatives of the patient having made request for release of the patient for better treatment, the patient was discharged against medical advice. Unfortunately, on that date at about 11:45 P.M. the patient had passed away at Charnock Hospitals Pvt. Ltd. and the cause of death had been mentioned as cardio-respiratory failure.
On behalf of complainants, it has been alleged that the doctors of OP No.1 Hospital administered injection Tirofiban without cautioned or care and the clinical condition of the patient was not properly assessed before use of the drug in question and condition of the application of the drug was not monitored according to the standard care. Ld. Advocate for the complainants has submitted that such a medicine can only be applied in case of extreme emergency and in this regard drawing my attention to a Medical Guide, he has submitted that the inj. Tirofiban should not be prescribed in case of – (1) having kidney problems, (2) who are elderly and (3) having high blood pressure which is not well controlled. Ld. Advocate for the complainants submits that for not following abundant care and caution prior to application of the said medicine, it was administered resulting deterioration of the heath of the patient.
In this regard, Ld. Advocate for the OP Nos. 2 to 4 has drawn my attention to Braunwald’s Heart Disease: A Text book of Cardiovascular Medicine 9th Ed. wherein it states – “Glycoprotien IIb/IIIa inhabitors interfere with platelet aggregation caused by all types of stimuli (e.g. Thrombin) Three Agents of this Class are currently available – abeiximab ...., eptifabatide and ASA significantly reduced the rate of death, MI or Refractory Ischemia the benefit of GP IIb/IIIa inhabitation appears greater in high – risk patients with UA/NSTEMI, such as those with ST-segment changes, those with elevated troponin concentration and diabetics”.
The complainants did not take any pain to prove that the application of injection Triofiban was beyond the practice of standard protocol. The complainants filed a complaint before the West Bengal Medical Council on the self same ground with self same allegations, the matter was taken up and a final order vide Memo No.3594-C/13-2012 dated 21.12.2015 was given by the penal and ethical Committee of the said West Bengal Medical Council wherein it was categorically observed –
“As the patient was admitted on acute condition, suspecting acute coronary syndrome referred by another hospital observing the seriousness and life treating (threatening) condition. The attending doctors tried their level best to handle the situation, maintaining all norms and guidelines supported by the experts including the emergency drug which they used alleged drug ‘Tirofiban’. ....”. The Council at their meeting considered the report of the concerned panel and ethical cases committee and agreed that the death of the patient through unfortunate, was due to a known and rare side effect but not due to any negligence on the part of attending physician.
The most pertinent aspect of the matter is that the complainants did not file any application for referring the case to any expert for obtaining opinion as to alleged medical negligence.
The evidence on record clearly speaks that the complainants are tried to suppress the truth with regard to the past history of the patient. In question no.19, on behalf of OP No.1, it was asked as to why the complainants did not disclose admission at Charnock Hospital and treatment as well as past history of the patient before this Commission and also put by question no.22 as to whether at the time of admission at OP No.1 Hospital whether the condition of the patient was normal or critical and if it was normal, they why Charnock Hospital referred the patient of or if critical kindly explain the critical condition to which it was answered on behalf of the complainants that Prasanta Sarkar (patient) was never admitted in Charnock Hospital and his condition was normal and it is Charnock Hospital to explain. However, there is evidence on record that the patient was chronic alcoholic of 57/58 years old.
It is well settled that in absence of expert evidence, complaint alleging medical negligence would not succeed. Medical negligence must be established and not presumed. In the absence of expert evidence on behalf of complainant, no negligence or deficiency in service could be found against the affidavits filed by OP No.1 and its doctors. more particularly when the same acquired support from the West Bengal Medical Council. The Council, at their meeting dated 14.10.2015 considered the report of the concerned Penalospital aand its dfoct
And Ethical Cases Committee and agreed with the observation of the said P.E. Committee that the attending doctor (OP No.2) has tried his level best to handle the situation, maintaining all norms and guidelines supported by experts including use of emergency drug ‘Tirofiban’.
The significant aspect of the case is that Dr. Susrut Bandyopadhyay, the In-charge of critical care unit has prescribed the medicine ‘tirofiban’ but the complainants did not take any pain to implead Dr. Susrut Bandyopadhyay to ascertain the actual state of affairs behind prescription of such medicine. It is true the consent of patient party was not taken before application of alleged drug ‘tirofiban’ but as the patient was in emergent condition and the drug is also used only on emergency basis, no liability can be attributed upon the doctors of OP No.1 hospital. Evidently, prior to admission at OP No.1 hospital, the patient underwent treatment at Charnock Hospitals at VIP Road, Kolkata. Surprisingly enough, to show their bonafide the complainants have not filed any discharge certificate or medical report of the said hospital to ascertain the actual physical c
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ondition of the patient. Ld. Advocate for the complainants referring a decision of Hon’ble Supreme Court reported in (2004) 8 SCC 56 (Savita Garg –Vs- Director, National Heart Institute) has submitted that once a claim petition is filed and the complainant has successfully discharged the initial burden that the hospital/clinic/doctor was negligent and that as a result of such negligence the patient died, then in that case the burden lies on the hospital and the doctor concerned treated the patient to show that there was no negligence involved in the treatment. He has also contended that the hospital as the controlling authority is responsible for the acts of its doctors and as such non-impleading Dr. Susrut Bandyopadhyay is fatal to the case. The submission made by the Ld. Advocate for the complainants is not at all applicable in the facts and circumstances of the case because had the patient being advised by OP No.2 on 15.07.2011 i.e. prior to two months of his admission at OP No.1 hospital would have done angioplasty (surgical repair or unblocking of a blood vessel, especially a coronary artery) the situation of the patient would not have deteriorated to that extent. In other words, the patient himself contributed the negligence. On evaluation of materials on record, it does not appear that the modus operandi of the treatment adopted by the doctors of OP No.1 hospital was beyond accepted medical norms and a deviation of standard protocol. In other words, the facts and circumstances of the case clearly indicate no case of medical negligence has been made out against the OP No.1 hospital or its doctors. As a result, the complaint is liable to be dismissed. Consequently, complaint is dismissed on contest. However, there will be no order as to costs.