HON’BLE MR. JUSTICE MANOJIT MANDAL, PRESIDENT - The instant complaint case was filed under section 17 of the Consumer Protection Act, 1986 by the complainant Sri Jalandhar Shah for the alleged medical negligence of the treating doctors and the hospital, causing death of his son Avijit Kumar Shah, aged about six years.
- The complainant Sri Jalandhar Shah has filed the instant complaint case praying for the following reliefs :-
“i) A judgment and order directing the Opposite Parties to pay a compensation to the tune of Rs.90,00,000/- (Rupees ninety Lacs) only to the complainant / petitioner for the reasons as stated in the above paragraphs of this complainant, which amounts to negligence and deficiency of service on the part of the Opposite Parties causing death of the 6 years old son of the petitioner / complainant which in turn caused great sorrow and hardship to the complainant and his wife, and further the arrogant and non-cooperative attitude of the Opposite Parties in trying to hide and shrug off the responsibilities of the incident which caused harassment and mental agony to the complainant. ii) Directing the Opposite Parties to pay Litigation cost to the tune of Rs.25,000/- iii) Such further or other order or orders be made and / or direction or directions be given as this Learned Court may deem fit and proper.” - The brief facts of the case are that on 09.02.2013 at 11.00 a.m. the son of the complainant namely Abhijit Kumar Shah who was six years old at that time, was taken by the complainant along with the mother of the child to opposite party No. 1 hospital, with symptoms of acute abdominal pain and vomiting for treatment and the attending doctor of the said hospital namely Dr. Pritam Banerjee i.e. opposite party No. 2 administered two injections and advised the complainant to contact with him after two hours, if the said symptoms of the said child of the complainant did not subside. After two hours, the position of the said son of the complainant did not improve. The complainant informed the matter to opposite party No. 2 doctor who referred Abhijit Kumar Shah, son of the complainant to surgery department. It was then 1.00 p.m. In surgery department, the son of the complainant was initially attended by opposite party No. 3 Dr. Rituparna Chaturvedi. Subsequently, on several persuasions and requests of the complainant, after a lapse of at least three hours, the son of the complainant was allowed to be admitted under the supervision of opposite party No. 4 Dr. S. K. Ghosh of surgery department in bed No. 516. In the meantime, the condition of the son of the complainant was deteriorating and the complainant’s wife i.e. mother of the said son on several occasions requested the nurse to inform the doctors regarding the condition and treatment of the son of the complainant, but neither the nurse did inform the doctors regarding the condition of the son of the complainant nor the concerned doctors did pay any heed to such information. Unfortunately, no fruitful treatment was given to the son of the complainant till 9.00 a.m. on the next day i.e. on 20.02.2013.
- Further case of the complainant is that on 20.02.2013 at 9.00 a.m. when the doctor of the said hospital attended the son of the complainant, at that time the said son of the said complainant was almost in sinking condition and in spite of their several requests, the authorities did not take any appropriate measure for better treatment of the complainant’s son causing unfortunate death of the said son of the complainant on 20.02.2013 at about 1.30 p.m. for which no one except the opposite parties are liable due to their deliberate negligent act.
- Further case of the complainant is that in surgery department at 1.00 p.m. on 19.02.2013, other senior doctors were present at Dr. Rituparna Chaturvedi’s chamber i.e. opposite party No. 3 but as the opposite party No. 4, Chief of the surgery department Dr. S. K. Ghosh was busy with his car insurance matter, the opposite party No. 4 did not bother about the son of the complainant which causes delay in admitting the son of the complainant in surgery department.
- Further case of the complainant is that in spite of several requests to attend the son of the complainant for those two days, no nursing staff, even the doctors visited the son of the complainant on the pretext that the said child was suffering from pain which was quite normal at that stage. That on 20.02.2013 at 1.30 p.m. when the mother of the said child tried to awaken the child and could not succeed to her efforts, being anxious she called the nursing staff who called the doctors but they did not attend the said child and ultimately the said child died due to such deliberate negligent attitude of the concerned doctors as well as the hospital authorities by not providing the proper treatment towards the minor son at proper stage.
- Further case of the complainant is that the complainant lodged a written complaint to the medical Superintendent, ESI Hospital, Joka, Kolkata – 700 104 i.e. opposite party No. 5 together with a letter dated 22.02.2013 which was duly received by the concerned hospital.
- Further case of the complainant is that the complainant reiterated the matter in short through the letter dated 26.03.2013 to the Medical Superintendent, i.e. opposite party No. 5 which was duly received on the same day by the concerned hospital.
- Further case of the complainant is that the complainant sent a written complaint on 16.04.2013 to the West Bengal Human Rights Commission (WBHRC) whereby the complainant stated the whole incident which was duly received by the WBHRC on 17.04.2013.
- Further case of the complainant is that the complainant received a copy of notice dated 18.06.2013 from the WBHRC wherefrom the complainant came to know that direction was given to the opposite party No. 5, ESI Hospital for submitting a report to them i.e. WBHRC.
- Further case of the complainant is that the complainant received another copy of letter dated 08.05.2013 from the office of the Senior State Medical Commissioner, Eastern Zone (EZ), wherefrom the complainant came to know that the Senior State Medical Commissioner admitted the fault of the concerned department and on duty doctors and staff of ESI Hospital. The complainant sent a letter on 17.04.2013 to the opposite party No. 5 Superintendent, ESI Hospital and requested him to furnish all medical papers and reports of the treatments of his son which was duly received by the opposite party No. 5. In response to the letter dated 17.04.2013 opposite party No. 5 Medical Superintendent, ESI Hospital informed the complainant and denied to furnish the relevant medical papers and reports to the complainant through a letter dated 10.05.2013.
- Further case of the complainant is that in response to the complaint letter dated 26.03.2013, the opposite party No. 5 Medical Superintendent, ESI Hospital informed the complainant and admitted the fault of the concerned department of ESI Hospital, Joka and on duty doctors through a letter dated 25.04.2013. The complainant sent a letter dated 22.07.2013 to the opposite party No. 5 Medical Superintendent, ESI Hospital along with the concerned doctors regarding negligent acts on their part causing the death of his minor son. In response to the letter dated 22.07.2013 the opposite party No. 5, Medical Superintendent, ESI Hospital informed the complainant and claimed that there was no justification for compensation to the complainant through a letter dated 03.08.2013. The complainant attended before the Enquiry Committee held on 09.09.2013 by Dr. (Prof.) Nalini Arora, Professor (G&O) and Chairperson of the Committee and the complainant submitted his statement through a letter dated 09.09.2013 which was duly received by the Enquiry Committee.
- Further case of the complainant is that during pendency of the instant case, the complainant after making due application received a copy of minutes of the 100th Meeting of the Regional Board of Regional office, ESI Corporation where in page 10 of the said minutes, it has been stated about the negligent acts of the on duty doctors which caused the death of Avijit Kumar Shah, the minor son of the complainant. During pendency of the case, the complainant received one report dated 27.02.2018 from the Directorate of Health Services, Govt. of West Bengal, Swasthya Bhavan, Salt Lake, Kolkata – 700 091 wherefrom it is clear about the negligent acts of the opposite parties and, therefore, they are liable to pay compensation for the death of Avijit Kumar Shah, the minor son of the complainant. Hence, the complainant has filed this complaint case.
- The opposite party No. 1, ESI Hospital, opposite party No. 2 Dr. Pritam Banerjee and opposite party No. 5 Medical Superintendent, ESI Hospital entered appearance in this case and was contesting the case by filing two separate written versions denying the material allegations in the petition of complaint. Their specific case is that on 20.02.2013 and 22.03.2013 the complainant lodged written complaints alleging medical negligence and opposite party No. 5 Medical Superintendent was requested to look into the matter whether or not the doctors were responsible for his son’s death. Thereafter, vide further letter dated 26.03.2013, the complainant added some other statements of his previous complaints. On receipt of the said written complaint dated 20.02.2013 an Enquiry Committee was constituted to look into the grievances of the complainant and the findings and observations of the Committee were duly communicated to the complainant. Later as per Headquarter’s office directions vide No. U-16/52/8/2011/Med-11 (WB) dated 18.07.2013 another Enquiry Committee was constituted with completely different members. The findings and observations of the new Enquiry Committee were duly communicated to the complainant. Despite communication of the first enquiry report, the complainant again lodged another complaint on 22.07.2013 whereby the complainant claimed Rs.25,00,000/- (Rupees twenty five lakh) only as compensation.
- On receipt of the said further complaint the opposite party No. 5 replied on 03.05.2013 which makes it clear that the Enquiry Committee was formed and the said Committee enquired into the grievances of the complainant and submitted its report which was duly communicated to the complainant.
- Further case of the opposite party No. 1 & 5 is that on 17.04.2013 the complainant filed a petition before the Hon’ble Chairman, WBHRC alleging medical negligence and the said matter was heard by the Hon’ble Commission in presence of opposite party No. 5 but no order has yet been communicated.
- Further case of the opposite parties No. 1 & 5 is that the complainant lodged a criminal case at Thakurpukur Police Station and Thakurpukur P.S. Case No. 357 dated 11.08.2013 under section 304A and 34 of the IPC was started. The said criminal case is still pending and no further development has been made. Hence, the opposite parties No. 1,2 & 5 have prayed for dismissal of the complaint case with costs.
- The opposite party No. 3 Dr. Rituparna Chaturvedi entered appearance in this case and was contesting the case by filing written version denying the material allegations in the petition of complaint. Her specific case is that the medical issues involved in this case are so complicated in nature. Without any evidence of medical expert of specialized field it would not be possible for the Commission to decide the matter. The present complaint case has been filed by the complainant only to malign the reputation of the opposite party No. 3.
- Further case of the opposite party No. 3 is that the son of the complainant, Avijit Kumar Shah, aged about six years was first attended by the Outpatient Department ( in short OPD) of ESI Hospital at around 11.30 a.m. on 19.02.2013. The pediatric department had initially examined the said Avijit Kumar Shah and found that the patient was having pain in abdomen and was vomiting from the day before. The patient was advised for injection Zofer and Buscopan which are generally administered for symptomatic control of vomiting and abdominal pain, by the pediatric department. The patient was kept under observation of the pediatric department for about two hours and was referred to surgery department. The patient thereafter came to surgery OPD and the opposite party No. 3 attended the patient around 02.05 p.m. along with other doctors including opposite party No. 4 Dr. S. K. Ghosh. The opposite party No. 3 examined the patient and recorded the noting of her observation. She in consultation with Dr. S. K. Ghosh, being the opposite party No. 4, advised immediate ultrasonography of abdomen of the patient on urgent basis. She also recommended blood test and other ancillary tests.
- Further case of the opposite party No. 3 is that the opposite party No. 3 advised the father of the patient to come back with USG and blood examination reports. After getting the USG report she again consulted with the opposite party No. 4 Dr. S. K. Ghosh and as per his advice she admitted the patient at about 3.16 p.m. on 19.02.2013. After admission, the opposite party No. 3 advised the patient for administering several other medicines. During admission the opposite party No. 3 found the patient though looking sick but communicating with her coherently. On examination of the abdomen she found it was soft with some tenderness in umbilical and epigastric reasons. She already advised for urgent USG of the abdomen. She showed the said USG to opposite party No. 4, Dr. S. K. Ghosh who examined the patient. She also sent the blood urgently from the OPD for examination.
- Further case of the opposite party No. 3 is that on 19.02.2013 her duty hours was till 4 O’ Clock in the afternoon. On completion of her duty at about 4 O’ Clock she left the hospital. As she left the hospital on 19.02.2013 at 4.00 p.m. she had no idea about subsequent course of events what happened till the next morning. While she went for the rounds and heard that condition of the patient had deteriorated at night with several episodes of convulsions and he had been transferred to pediatric department as this was not a case of appendicitis.
- Further case of the opposite party No. 3 is that she attended the patient at 02.05 p.m. on 19.02.2013 and after getting report of USG she showed the said report to the opposite party No. 4 Dr. S. K. Ghosh.
- Further case of the opposite party No. 3 is that she attended the patient time to time and till the time the patient got admitted. There was no delay from her side and also from the side of the hospital and Medical attendance had already been given to the patient as it is evident from the records. Hence, the opposite party No. 3 has prayed for dismissal of the complaint case.
- The opposite party No. 4 Dr. Sumanta Kumar Ghosh entered appearance and has been contesting the case by filing written version. His specific case is that medical issues involved in this case are of so complicated in nature that without any evidence of medical experts of specialized field it would not be possible for this Commission to decide the matter and further voluminous evidence has to be recorded. The Consumer Forum being created for summary trial the present case should be dismissed. His further case is that the present complaint has been filed only to malign the reputation of the opposite party and as such the same should be dismissed.
- His further case is that the complaint is liable to be dismissed as the main grievance of the complainant is with regard to the treatment made under ESI Scheme in one ESI Hospital. The son of the complainant Avijit Kumar Shah aged about six years was first attended by the pediatric department of the hospital at around 11.30 a.m. as per the records of the ESI Hospital. The pediatric department had initially examined the patient and found that the patient was having pain in abdomen and the patient was vomiting from yesterday. On examination, the abdomen was found to be soft and non-tender and they have advised for examination of urine probably to rule out urinary tract infection. The patient was also advised for injection Zofer and Buscopan which are generally administered for symptomatic control of vomiting and abdominal pain. The patient was kept under observation of the pediatric department for about two hours and was referred to surgery department at around 1.30 p.m. At the OPD of ESI Hospital, the recess period was 1.30 p.m. to 2.00 p.m. and as such at around 2.05 p.m. the patient was first seen by Dr. Rituparna Chaturvedi at OPD. It is the protocol of all the Govt. Hospitals that patients are examined by the senior residents and only if there is a necessity depending upon nature of the case the patient is referred to Head of Department. The complainant had admitted that the patient was referred to his chamber and as such he could overhear his conversation. Though he had no proper recollection as to whether he had received any call on his phone on 19.02.2013 afternoon when the patient was in his chamber. But he received calls from the administrators, Jr. Doctors, nurses and patients seeking advises and direction regarding the course of treatment which he had to attend.
- Further case of the opposite party No. 4 is that he found the patient looking tired and lethargic but communicating with them coherently. Clinical examination revealed that non-tender right iliac fossa with some tenderness around umbilicus which was codified in the BHT. He had advised tests like urgent USG of abdomen to conclusively rule out appendicitis, along with blood. He had advised admission of the patient. The findings of him was codified in the BHT of the patient and signed by Dr. Chaturvedi. The patient had undergone USG at around 2.30 p.m. and the report came around 3.00 p.m. which ruled out appendicitis. The blood test report which were advised reflected absence of systemic infection like Appendicitis and Peritonitis. The blood test and the USG report combined together reflected gross electrolyte disturbance with renal impairment and absence of intra abdominal surgical conditions like Appendicitis, Pancreatitis and Peritonitis. The patient was admitted in the 5th floor female ward of the hospital as the mother of the patient was staying with the patient. The patient was admitted in the hospital as it was decided that the patient needs institutional care and further investigation as the cause of the pain was not diagnosed satisfactorily. He counselled the father of the child in detail at SOPD just before the boy was taken to the ward that he does not need any emergency surgery but needs inpatient observation. Blood reports urgently asked for which will help us to reach a definite diagnosis. He also requested him to bring any past medical records of the child next morning which can also throw light into his diagnosis.
- Further case of the opposite party No. 4 is that at around 6.00 p.m. the patient was attended by attending doctor and clinical findings remains same without showing any sign of deterioration. The patient was also attended to by on duty surgeon twice after 6.00 p.m. during the night and at 02.15 a.m. the patient was seen by on duty pediatrician based on a referral request by on duty surgeon.
- Further case of the opposite party No. 4 is that in the mean time medications continued to the patient as per direction of attending doctors. He had again examined the patient at around 08.50 a.m. on 20.02.2013 when the patient was assessed and examined by him. It was felt that reports of blood test were required as early as possible, the same blood tests that were advised at the time of admission on previous day. At around 09.10 a.m. the patient was attended by another senior surgeon who found enlarged and tender liver with highly tender upper abdomen and non-tender lower abdomen. The patient was again assessed at 09.15 a.m. by the same surgeon and referred the patient again to pediatric department for further treatment as it was conclusively assessed that the patient was not having appendicitis based on the USG report and the blood test reports. The patient suffered a convulsion at around 09.10 p.m. which may have been caused by still unreported grossly low sodium of 111 mg % presumably. As the patient had suffered convulsion, continuous care was given by the doctors of surgery department for control of convulsion in consultation with the pediatric doctor till he was transferred at 10.00 a.m. to SNW (pediatric general ward) on advice of pediatrician as it was presumed that the patient was suffering from Encephalitis or abdominal epilepsy.
- Further case of the opposite party No. 4 is that the patient underwent lumbar puncture in the pediatric ward after being transferred from the surgery ward. The lumbar puncture report which came subsequently suggested no specific disorder.
- Further case of the opposite party No. 4 is that after the lumbar puncture was done, the condition of the patient deteriorated drastically and as such the patient was transferred to pediatric ICU as it was suspected that the patient may be suffering from encephalitis or abdominal epilepsy. The condition of the patient did not improve and subsequently the patient expired at around 01.30 p.m.
- Further case of the opposite party No. 4 is that, the opposite party No. 4 had verbally asked the Superintendent of the Hospital for post mortem of the patient immediately after the death of the patient which was subsequently codified in one of his letter which has not been denied by the Superintendent.
- Further case of the opposite party No. 4 is that even if for argument’s sake it is presumed that it was a case of perforated appendix / appendicitis with peritonitis even in that case the patient will never suffer convulsion and will definitely survive more than 72 hours after the event. Hence, the opposite party No. 4 has prayed for dismissal of the complaint case.
- On behalf of the complainant, the complainant himself has filed evidence on affidavit. He has also given reply against the questionnaire set forth by the opposite parties No. 3 & 4. The opposite parties No. 3 & 4 also have filed evidence on affidavit in support of their case. They have also given reply against the questionnaire set forth by the complainant.
- The opposite parties No. 1,2 & 5 have not filed any evidence on affidavit in support of their case. The complainant and the opposite party No. 4 filed Brief Note of Argument in support of their respective cases.
- Upon hearing both sides and on perusal of the pleadings of both sides the following issues were framed for proper adjudication of this case.
Issues : i) Is the complaint case maintainable ? ii) Are the opposite parties guilty of deficiency in service as alleged by the complainant ? iii) Is the complainant entitled to get any relief and / or reliefs as prayed for ? Decisions with reasons : Issue No. 1 : This issue is taken up first for consideration. This issue has not been pressed by the authorized representative of the complainant and by the Learned Lawyer appearing for the opposite parties No. 3 & 4 at the time of hearing arguments. So, this issue is decided in favour of the complainant and against the opposite parties. Issue Nos. 2 & 3 : These two issues are taken up together for consideration for the sake of brevity and their inter relatedness. - The authorized representative of the complainant has urged that the complaint case was filed by the complainant in the year 2013 seeking justice and just compensation as per law for deficiency in service and also for causing gross negligent death of Avijit Kumar Shah, aged six years, son of the complainant Mr. Jalandhar Shah by unethical and wrongful therapy by the opposite party hospital and doctors.
- He has further urged that Avijit Kumar Shah was a happy and healthy child who developed some vomiting with pain in abdomen for which he was taken to the opposite party No. 1 hospital at around 11.00 a.m. on 19.02.2013 where the patient was examined by Dr. Pritam Banerjee, opposite party No. 2 who pushed two injections and referred the patient to the surgery OPD with a presumed diagnosis of appendicitis and / or peritonitis. The patient was advised for urgent USG, blood tests and examined at surgery OPD by Dr. Rituparna Chaturvedi, opposite party No. 3 and later by Dr. S. K. Ghosh, Head of the Deptt. of surgery, opposite party No. 4 who advised for admission. Following admission under surgery department and after examination of the test reports of USG, blood showed no inflamed / visible appendicitis, no apparent infection and low blood sodium or Hyponatremia. It was opined that the patient was not suffering from appendicitis and / or peritonitis and required no immediate surgery and, as such, the patient was referred back to the pediatric department under opposite party No. 2. The patient was suffering from convulsion and ultimately the patient expired at around 01.30 p.m. on 20.02.2013.
- He has further urged that a clear case of negligent diagnosis and treatment in the instant case would be palpably clear from the medical reports.
- He has further urged that the patient was treated by the opposite party No. 2 carelessly, negligently and unscientifically. As a result, the patient died untimely at the age of six years.
- He has further urged that five different investigative committees have reportedly looked into the unfortunate death of the patient in the instant case and none of these committees were able to give a clean chit to the accused doctors / hospital.
- He has further urged that the opposite parties No. 2 & 5 are guilty for blatantly unlawful and unethical behaviour as they not only concocted a story to cover up their mistakes by issuing a false death certificate claiming that the patient died from peritonitis with septic shock without any scientific basis only on a ‘presumptive’ diagnosis as found in the enquiry conducted by the Senior State Medical Commissioner.
- He has further urged that the child patient showed symptoms before death following the LP but the opposite parties willfully did not perform any autopsy which was mandatory in such cases, that could have established the cause of death.
- He has further urged that the complainant has duly proved his case. So, the complaint case should be allowed.
- On the other hand, Learned Lawyers appearing for the opposite parties No. 3 & 4 have urged that the complainant has failed to prove the case. So, the complaint case should be dismissed. they have further urged that the complainant had filed the misconceived complaints against the opposite parties No. 3 & 4. The complainant without understanding had filed the complaint with the police, West Bengal Medical Council believing that the patient had died due to bursting of appendicitis failing to understand that bursting of appendicitis is actually leaking of appendicitis and is a slow process and the signs of appendicitis was not even there. As such, bursting is impossible. The West Bengal Medical Council held that there was no negligence. Medical Council of India in appeal held also that there was no negligence.
- Having heard the Learned Advocates appearing for both the parties and on perusal of the record it appears to us that it is an admitted position that the deceased Avijit Kumar Shah was the son of the complainant, Jalandhar Shah.
- It is also an admitted position that on 19.02.2013 at 11.00 a.m. the deceased Avijit Kumar Shah, aged six years was taken to opposite party No. 1 hospital. It is also an admitted position that opposite party No. 2 Dr. Pritam Banerjee attended the said patient Avijit Kumar Shah and he administered two injections and advised the complainant to contact him after two hours if the symptoms of the said child did not subside.
- It is also an admitted position that even after two hours the position of the said son did not improve. The complainant informed the matter to Dr. Pritam Banerjee, opposite party No. 2.
- It is also an admitted position that in surgery department, the opposite party No. 3 Dr. Rituparna Chaturvedi attended the said patient and said patient was admitted in the said opposite party No. 1 hospital under the supervision of opposite party No. 4 Dr. S. K. Ghosh.
- It is also an admitted position that on 20.02.2013 at about 01.30 p.m. said Avijit Kumar Shah passed away in the opposite party No. 1 hospital.
- Now, we shall have to consider as to whether there was any deficiency in service on the part of the opposite parties and whether due to latches and negligence by the opposite parties Avijit Kumar Shah, since deceased died an untimely death.
- In case of medical negligence, the specific allegations regarding negligence on the part of the Doctor have to be proved and onus of which lies on the complainant. A professional charged with the negligence is to show that he acted in accordance with general and approved practice. Negligence cannot be attributed to a Doctor so long as he performs his duties with reasonable skill and competence. The Doctor has discretion in choosing treatment which he proposes to give to the patient, but such discretion is relatively ampler in cases of emergency. Hon’ble Supreme Court in Jacob Mathew Vs. State of Punjab (2005) 6 SCC 1 considered as to what constitutes medical negligence and laid down as under :-
“Negligence is the breach of a duty caused by Commission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do.” “2. Negligence in the context of medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptance to the medical profession of that day, he can be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. When it comes to the failure of taking precautions what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use specia or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. So also, the standard of care, while assessing the practice as adopted, is judged the light of knowledge available at the time of the incident, and at the date of trial. 3. A professional may be held liable for negligence on one of the two findings; either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence. 4. The test for determining medical negligence as laid down in Bolam’s case (1957) 1 W.L.R. 582, 586 holds good in its applicability in India”. 5. The jurisprudential concept of negligence differs in civil and criminal law. What may be negligence in civil law may not necessarily be negligence in criminal law. For negligence to amount to an offence, the element of mens rea must be shown to exist. For an act to amount to criminal negligence, the degree of negligence should be much higher i.e. gross or of a very high degree. Negligence which is neither gross nor of a higher degree may provide a ground for action in civil law but cannot from the basis for prosecution. 6. The word ‘gross’ has not been used in Section 304A of IPC, yet it is settled that in criminal law negligence or recklessness, to be so held, must be of such a high degree as to be ‘gross’. The expression ‘rash or negligent act’ as occurring in Section 304A of the IPC has to be read as qualified by the word ‘grossly’. 7. To prosecute a medical professional for negligence under criminal law it must be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do. The hazard taken by the accused doctor should be of such a nature that the injury which resulted was most likely imminent. 8. Res ipsa loquitur is only a rule of evidence and operates in the domain of civil law specially in cases of torts and helps in determining the onus of proof in actions relating to negligence. It cannot be pressed in service or determining per sufficiently explained the liability for negligence within the domain of criminal law. Res ipsaloquitur has, if at all, a limited application in trial on a charge of criminal negligence”. - In Jacob Mathew (supra) the three Judge Bench of Hon’ble Supreme Court elaborating on the degree of skill and care required of a medical practitioner quoted Halsbury’s laws of England (4th Edition Vol.30 para 35) as follows :
“35. The practitioner must bring to his task a reasonable degree of skill and knowledge, and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence, judged in the light of the particular circumstances of each case, is what the law requires, and a person is not liable in negligence because someone else of greater skill and knowledge would have prescribed different treatment or operation in a different way.” - In Martin F. D’Souza Versus Mohd. Ishfaq 1(2009) CPJ 32 (SC), Hon’ble Supreme Court observed as under :-
“From the principles mentioned herein and decisions relating to medical negligence it is evident that doctors and nursing homes/hospitals need not be unduly worried about the performance of their functions. The law is a watchdog, and not a bloodhound, and as long as doctors do their duty with reasonable care they will not be held liable even if their treatment was unsuccessful.” “When a patient dies or suffers some mishap, there is a tendency to blame the doctor for this. Things have gone wrong and, therefore, somebody must be punished for it. However, it is well known that even the best professionals, sometimes have failures. A lawyer cannot win every case in his professional career but surely he cannot be penalized for losing a case provided he appeared in it and made his submission”. “Simply because a patient has not favourably responded to a treatment given by a doctor or a surgery has failed, the doctor cannot be held straightway liable for medical negligence by applying the doctrine of res ipsa loquitur. No sensible professional would intentionally commit an act or omission which would result in harm or injury to the patient since the professional reputation of the professional would be at stake. A single failure may cost him dear in his lapse.” - It is well settled principle of law that a physician cannot assure the patient of full recovery in every case. A surgeon cannot guarantee that the result of surgery would invariably be successful, much less to the extent of 100% for the person operated upon. The only assurance, which such a professional can give or can be understood to have given by implication is that he is possessed of the requisite skill in the branch of profession which he is practicing and while undertaking the performance of the task entrusted to him, he would be exercising his skill with reasonable competence. This is all what the person approaching the professional can expect. A medical practitioner cannot be held liable, simply because things went wrong from mischance or misadventure or through an error of judgment, in choosing one reasonable course of treatment, in preference to another. A medical practitioner would be liable, only where his conduct fell below that of the standards of a reasonably competent practitioner of such field.
- The facts of the present case are to be analysed in the light of the proposition of law laid down in the aforesaid discussed authorities.
- It is an evidence on record that the son of the complainant, Avijit Kumar Shah aged about six years was first attended by the pediatric department of the hospital as OPD patient at around 11.30 a.m. as per records of the ESI Hospital. The pediatric department had initially examined the patient and found that the patient was having pain in abdomen and the patient was vomiting for 24 hours. On examination of the abdomen it was found to be soft and non tender and they only advised routine examination of urine probably to rule out urinary tract infection. The patient was also advised injection Zofer and Buscopan which are generally administered for symptomatic control of vomiting and abdominal pain along with oral fluid. It is also in evidence that the patient was kept under observation in pediatric department for about two hours and was referred to surgery department at about 1.30 p.m. the patient was referred to surgery OPD on 19.02.2013 by attending pediatrician Dr. Pritam Banerjee. The hospital had stipulated half hours slot of 1.30 p.m. to 2.00 p.m. as OPD recess although the emergency services at casualty runs 24 hours without any recess wherein surgery department is also present. After 2.00 p.m. when the patient was attended at the surgery OPD, the patient was attended immediately by Dr. Rituparana Chaturvedi, opposite party No. 3, Senior Resident of surgery as per standard protocol and was referred to opposite party No. 4 doctor and further examination was done by the opposite party No. 4 doctor. The patient was examined and attended by the surgery department with utmost sincerity. The patient was advised to get an urgent ultrasound scan of abdomen along with some blood tests. The decision to admit the patient was corroborative decision taken based on clinical examination and ultrasound finding highlighting the need of inpatient care and management collectively rather than determining in that incident whether the cause of illness is surgical or medical. It is also in evidence that as the ultrasonography ruled out acute appendicitis by absence of features that are diagnostic / of acute Appendicitis, the cause had to be determined under multi disciplinary institutional care of surgery and pediatrics urgent blood sample was sent from OPD itself to aid in the diagnosis veinous access made and father of the patient counselled about the doctor’s treatment plan. The father of the patient was told that no emergency surgery is required then for his son. It is also in evidence that the patient was admitted on the clinical merit of required inpatient care after refusal of admission by pediatrics after two hours of observation in the casualty. The boy was admitted under supervision of opposite party No. 4 Doctor in surgery department at 03.20 p.m. The pediatrician was involved in the patient’s care from their end all though he stayed in the hospital till his death. It is also in evidence that as the OPD or ESI recess period is in between 1.30 p.m. to 2.00 p.m., as such at around 2.05 p.m. the patient was first seen by Dr. Rituparna Chaturvedi, opposite party No. 3 at SOPD. It is also in evidence that the opposite party No. 4 found the patient looking tired and lethargic but communicating with them coherently. Clinical examination reveals non tender right iliac fossa with some tenderness around umbilicus which was codified in BHT.
- It is also in evidence that opposite party No. 4 advised tests like urgent USG of abdomen to conclusively rule out appendicitis, along with blood for Total Leucocytic Count, Differential count, Hemoglobin, Serum Amylase, Lipase, Sodium, Potassium, Urea and Creatinine to rule out possible diseases including Appendicitis, Pancreatitis and Dyselectrolytaemia as a common sequlae to vomiting and metabolic abnormalities like renal impairment practising evidence based Medicine along with test for hepatitis. Findings of opposite party No. 4 were codified in the BHT of the patient and the said BHT was signed by Dr. Chaturvedi, opposite party No. 3.
- It is also in evidence on record that as per advice the patient was admitted in the 5th floor female ward of the hospital as the mother of the patient was staying with the patient. The patient was admitted under surgery department after pediatric department refused to admit under them after wasting two hours of observation without any investigation requested.
- It is also in evidence that opposite party No. 4 doctor counselled the father of the child in detail just before the boy was taken to the ward and that the boy does not need any emergency surgery but needs inpatient observation and combined re-evaluation of surgery and pediatrics with blood reports and past medical records of the boy that he promised to bring next morning.
- On consideration of the above evidence on record it may be concluded that the opposite party No. 1 hospital and its doctors took proper care for the treatment of the son of the complainant and the opposite party No. 1 and its doctors were not careless and negligent in giving advice to the complainant and his wife which was required to be followed for the treatment of the son of the complainant. This conduct of the opposite parties proves that they applied their mind in taking care of the patient. The opposite parties took proper care and they are not negligent at all. The opposite parties got their task to a reasonable degree of their skill and knowledge and exercised a reasonable degree of care.
- Learned authorized representative appearing for the complainant has urged that prior to admission and tests no ‘informed consent’ was obtained from the patient or from his relatives. He has further urged that no doctor has right to perform any treatment / surgical intervention without a valid ‘informed consent’. He has further submitted that the opposite party No. 1 hospital and doctors performed a lumbar puncture of the patient, and invasive medical procedure to collect CSF by insertion of a sharp needle through the back and through a lumbar vertebrae without obtaining any ‘informed consent’ whatsoever. Thus the opposite party No. 1 and its doctors may be held guilty for negligence. We fail to accept such contention of the authorized representative of the complainant as because the complainant has nowhere stated in the complaint case that the opposite parties did not obtain ‘consent form’ prior to any treatment or surgical intervention. From the evidence produced on record it also appears that there is no evidence on record about the said ‘consent form’. The complainant has come out with a concocted and afterthought version about the consent form. Therefore, the submission of the authorized representative of the complainant cannot be accepted.
- Authorized representative for the complainant has drawn attention of this Commission to the report dated 22.09.2017 submitted by the Chief Medical Officer of Health, South 24 Parganas. It is his contention that said report discloses that there was negligence in the treatment of the patient and the opposite party No. 2 had changed repeatedly the provisional diagnosis and that cause of death by peritonitis with septicemia shock without doing autopsy and in addition to that the patient party was not informed about the autopsy to get the exact reason of death.
- On perusal of the said report it appears to us that in surgery, OPD patient was examined by the opposite party No. 3 doctor and the opposite party No. 3 doctor advised for admission and simultaneously done clinical examination and collect blood samples on urgent basis. The opposite party No. 3 referred the patient for sonologist for his valuable opinion and finally the patient was admitted under opposite party No. 4 doctor at surgery department on 19.02.2013 at 03.16 p.m. The said report also reveals that the Enquiry Committee did not make any allegation against the opposite party No. 3 Dr. Rituparna Chaturvedi though certain lapses were noted regarding pathology department, non maintenance of BHT and certain other administrative matters. However, in the report there was no allegation against any of the doctors including opposite party No. 3 doctor. It transpires from the said report that opposite party No. 4 doctor requested to do autopsy for the actual diagnosis but that was not acceptable by the hospital authorities. Annexure ‘B’ of the petition of complaint are the xerox copy of certificate of death issued by ESI Hospital dated 20.02.2023 and cremation / burial certificate issued by KMC dated 20.02.2013 which disclose that the patient Avijit Kumar Shah died on 20.02.2013 at 1.30 p.m. and after the death of the said patient, the patient party took the dead body of the patient from the opposite party No. 1 hospital and the patient party cremated the body at Topsia HBG under KMC on that date i.e. on 20.02.2013. In such situation, it may be concluded that the post mortem examination of the patient could not be held as the hospital and police authorities failed to send the dead body for conducting post mortem examination. In the result, we are of the view that opposite parties have performed their duties to the best of their abilities with due care and caution and diligence. The complainant did not allege about the ability and skill of the doctors. In the result, we hold that the actual cause of death of the patient has not yet been ascertained due to failure of conducting post mortem examination on the dead body of the patient.
- It is evident that the complainant Jalandhar Shah lodged a written complaint against the opposite party No. 3 and opposite party No. 4 doctor of the opposite party No. 1 hospital before the West Bengal Medical Council alleging negligence in treatment of his son Master Avijit. The West Bengal Medical Council submitted their report on 02.09.2019 and the said report was duly communicated to the complainant and the opposite party No. 3 & opposite party No. 4 doctors. The said report is in the record. The report submitted by the West Bengal Medical Council is reproduced as under :-
“a. Without PM, it is difficult to ascertain the cause of death. b. Sometimes medical causes fool us, mimicking surgical conditions particularly so with pain abdomen in children. c. The child had severe metabolic abnormalities : Ser Na 111 mmol/K 6 mmol Cause of action 7.4 mg/dl with urea 127 mg/dl and Creatinine 1.6 mg/dl. Severe hyponatremia / hypocalcaemia can precipitate convulsion and hyperkalemia can cause cardiac arrest. Elevated urea / Creatinine may be due primarily to dehydration as the child was vomiting for 3 days with pain abdomen. Hyperkalemia point to cell disruption or collection error. d. It is not clear what treatment he got before attending ESIMC, Joka which might be relevant in this context. e. Acute appendicitis is a clinical diagnosis and to reduce incidence of unproductive surgery, several clinical scoring systems have been developed. One such is ALVAROPDO SCORE USG is a screening test to exclude other causes. f. The question whether LP precipitated coning and cardio respiratory arrest – should be judged by Neurologist and Paediatric Medicine experts. g. Surprisingly no where in treatment sheet , the boy’s body weight was recorded, which was relevant. h. It is difficult to record each and every communication to patient care givers in black and white and who is lying is difficult to judge. The Council also took into consideration the following observations of the Enquiry Committee formed by the ESIC, Joka : - Any medical negligence is difficult to establish in this case as no diagnosis was possible in such a short time for which performing an autopsy could have clinched the diagnosis.
- The documentation by the on duty doctors in surgery department was poor.
- There was no consultation and communication documented with Specialist – on – Call and HoD of Surgery Department by the on duty doctors throughout the evening and night after admission.
- No communication to patient party regarding the status of the patient was done in the night by the on duty doctor.
Keeping all the above observations in mind, the Council observed that even though the patient may not have proper treatment ( as no definite diagnosis could be arrived at) in the Hospital, there was no deficiency in the efforts on the part of the attending doctors and thus this case cannot be labeled as a case of medical negligence. With the above observation, the Council decided to close the case with intimation to all concerned. “ - On careful perusal of the said report it appears to us that the Medical Council observed that there was no deficiency in the efforts on the part of the attending doctors and the case cannot be labelled as a case of medical negligence.
- Against the observation and conclusion made by the West Bengal Medical Council, the complainant preferred the appeal before the Medical Council of India. The Medical Council of India after hearing the complainant Jalandhar Shah and the opposite parties No. 3 & 4 doctors was of the opinion that there was no infirmity in the order dated 06.09.2019 passed by the West Bengal Medical Council and decided to uphold the same. In the result, the Medical Council of India confirmed the reports submitted by the West Bengal Medical Council. There is nothing in the record to disbelieve the reports submitted by the West Bengal Medical Council and the Medical Council of India.
- The report submitted by the Medical Council of India have not been challenged by the complainant before any higher forum or authority.
- In the result, the report submitted by the West Bengal Medical Council and the Medical Council of India may be considered as correct and true. On consideration of the said two reports submitted by the West Bengal Medical Council and the Medical Council of India it can safely be held that there was no negligence or deficiency in service on the part of the opposite party No. 1.
- The authorized representative for the complainant in support of their allegation regarding negligence against the opposite party No. 1 hospital and treating doctors has relied on the following 5 (five) judgments namely i) 2020 SCC 6, page 501 (Maharaja Agrasen Hospital & Ors. Vs. Master Rishava Sharma & Ors., ii) 2008 SCC 2, Vol.II, page 1 (Samira Kohli Vs. Prabha Manchanda & Anr.), ii) 209 SCC 9, page 221, (Malay Ganguly Vs. Dr. Sukumar Mukherjee & Ors.), iv) 2014 SCC 1, page 384 (Dr. Balaram Prasad Vs. Dr. Kunal Saha & Anr.) & v) Judgment passed by the Hon’ble National Commission on 06.05.2016 in connection with case No. CC 221 of 2010 (Anil Dutta Vs. Vishes Hospital & Ors.). However, reliance of this 5 judgments in the adjudication of this complaint, facts being at variance, would be misplaced.
- In Des Raj Singla and Ors. V. Dayanand Medical College & Hospital & Ors. reported in 2022 (1) CPR 45 (NC) the Hon’ble National Commission observed that :-
“ Onus to prove medical negligence lies largely on the complainant and that this onus can be discharged by leading cogent evidence. A mere averment in a complaint by no stretch of imagination, be said to be evidence by which the case of complaint can be said to be proved. It is the obligation of the complainant to provide hard evidence to prove the case of medical negligence against the Doctors / Hospitals.” - The Hon’ble Apex Court has pronounced in a case reported in 2022(1) CPR 443(SC) (Dr. Harish Kumar Khurana V Jaginder Singh and ors.) that :-
“In every case where the treatment is not successful or the patient dies during surgery, it cannot be automatically assumed that the medical professional was negligent”. - We appreciate the pain of the complainant, but then that by itself cannot be a cause for awarding compensation for passing away of his son. We have sympathy for the complainant, but sympathy cannot translate into legal remedy.
- Having regard to the discussion done and legal position explained, we are of the considered view that negligence as alleged against the treating doctors or the opposite party Hospital cannot be substantiated and thus the complaint cannot be allowed.
- In the result, the complaint case be and the same is dismissed.
- There will be no order as to costs.
- The complaint case is thus disposed of accordingly.
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