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Judgment
Dr. S.M. Kantikar, Presiding Member
The instant Appeal has been filed under Section 19 of the Consumer Protection Act 1986, against the order of the State Consumer Disputes Redressal Commission, West Bengal (for short, the ‘State Commission”) in Complaint Case being S.C. No. 18/O/2004 passed on 29.11.2007, whereby the State Commission dismissed the complaint on ground that the Complainant failed to prove any negligence against the OPs.
Brief facts:-
On 30.04.2004 at about 6 AM, the Complainant’s daughter Ms. Antra (for short ‘the patient’) while going to school by an Auto-Rickshaw met with an accident. Immediately she was rushed to emergency at Kasturba Gandhi Hospital (in short, ‘OP-1’). Dr. Subimal Gupta (in short, ‘OP-4’) examined her and shifted to ICU and IV saline was started. The patient vomited twice. It was alleged that the Complainant asked about the seriousness of head injury and if necessary, he wanted to take his daughter to some other hospital for better treatment, but on contrary the OP-4 told that sleeping injection had been given and the patient will be sent for CT Scan to Asansol. As per the advice, for CT Scan, the Complaint took her to Avishkar Diagnostic Centre at Asansol (in short, ‘OP-9’). Patient vomited twice during said period. The CT report was seen by OP-4 and told not to be worry. But on the next day (01.05.2004) morning, the OP-4, based on the condition, told the Complainant to take the patient to another hospital having Neurology Department and on the next morning, the OP-4 told the Complainant to better consult Neuro-surgeon as faculty was not available in the OP-1 hospital. At about 9.30 AM, the condition of patient deteriorated and the Complainant allegedly noticed through ICCU glass that few doctors were busy in massaging chest of his daughter and placed her on the ventilator. The Complainant contacted OP-7, Dr. Anil Kumar Rakshit, who allegedly told that in the CT scan there was clear internal hemorrhage seen. If the patient does not respond within 30 mins, then the chances of survival would be less. Thereafter, on the same day the patient declared dead at 7.00 PM.
The Complainant alleged that the CT Scan, PM findings and the death certificate clearly showed head injury and Scalp swelling on left side of occiput. Thus, under such grave condition, the ordinary surgeon (OP-4) ought to have referred the patient, but he treated the patient without any knowledge in neurology and neurosurgery. The patient was 10 years old and only child of the complainant who died due to negligence and lack of due care and treatment from the OPs. Being aggrieved, the father of Child filed the Consumer Complaint before the State Commission, Kolkata and prayed compensation of around 38 lakhs.
Defense:
The OPs filed their reply and submitted that the allegations are false and frivolous. The OP-1 and 2 have admitted that in the hospital, there was neither Neurology nor Neurosurgery unit. The Complainant, being a Local Railway employee, working at the Chittaranjan Locomotive works, knew very well that there was no neurosurgeon and no neurology unit in Kasturba Gandhi Hospital, but therein he was willing for treatment under Dr. S. Gupta, the OP-4. The OPs submitted that on 30.04.2004 the patient, was admitted with a trauma to the head and abrasion over both knees and small abrasion over frontal region of skull. There was no history of any unconsciousness, history of vomiting once. The Glasgow Coma Score (GCS) was 15. The patient was admitted and for constant supervision and to avoid disturbance from the attendants, she was kept in ICCU. The CT scan was advised and necessary permission was taken from Chief Medical Superintendent of the hospital who also visited the patient during the routine round. The funduscopic examination was done but there was no papilledema. It was further submitted that the patient’s attendants made their arrangement of their own to take her to Asansol for CT scan. The Complainant gave undertaking for the same on the BHT. The CT scan report was normal and there was no brain injury or any skull fracture. The patient returned to hospital and remained normal. She was examined periodically by the different doctors and she was quite normal. As on 01.05.2004, in the morning, she was hungry, therefore she was allowed to take liquids and semisolid diet. She was normal till the next day morning, but at 6.30 AM on 02.05.2004, she developed convulsion and it was effectively managed. The condition of his daughter was informed to the relatives and they were permitted to bring doctor from outside. At about 10.30 AM, the condition of the patient suddenly deteriorated and the OP-5 and 6 attended her and put her on the ventilator. At about 02.30 pm, Dr. Rakshit (Neurologist) attended the patient, but in spite of all efforts, the patient - Ms. Antara, daughter of the Complainant, expired at 07.30 pm.
The State Commission, after hearing the parties, dismissed the Complaint on the ground that the Complainant failed to prove negligence and did not produce expert evidence.
Being aggrieved by the Order of State Commission, the Complainant filed the instant Appeal.
Heard the arguments from both the sides. Perused the material on file inter alia the impugned order as well as the medical record of the patient.
The learned Counsel for the Complainant reiterated the facts and evidence. He stressed upon the gross negligence of the OPs.
The learned Counsel for OPs submitted that there was no neurosurgeon or neurosurgical set up in the K.G. Hospital or near to Asansol or in between Chittaranjan and Kolkata. The K.G. Hospital is situated in a remote place and thus it was quite impractical to refer every patient of head trauma to neurosurgical unit nearly 250 km away, at Calcutta. As per the prevailing referral guidelines, after initial treatment and assessment, the patient was officially referred from K. G. Hospital to B.R. Singh Railway Hospital at Kolkata having a neurosurgical set up. He reiterated that only those patient having normal (GCS 15) and normal CT scan are treated in K.G. Hospital. The Counsel brought our attention to the prescribed guidelines for neurosurgical referral are as below:
i. Patient with severe head injury (GCS 8 or low) without CT scan.
ii. Any patient (from GCS 9 to 14) with a history of unconsciousness and / or vomiting who fails to recover full.
iii. Any patient who are clinically normal (GCS 15) or regain GCS score 15 after resuscitation, but have any abnormalities in CT scan.
Dr. Subhimal Gupta (OP-4), the General Surgeon, who had successfully treated many head injury patients in K.G. Hospital, treated the instant patient as per the reasonable standards.
I gave my thoughtful consideration to the arguments from both the sides. On careful perusal of medical record, it is evident that after admission, Dr. S. Gupta examined the patient and found abrasions over her forehead and knees and patient was stable. The GCS was 15. To rule out head injury, Fundoscopic examination opinion from the Ophthalmologist Dr. A. K. Chakraborty was taken. There was no Papilledema. The patient was managed conservatively as there was no neurological deficit. Patient was administrated IV fluids, antibiotics, H2 receptor blocker and anti-emetic drugs. During routine round at 10.30 AM, the Chief Medical Superintendent (CMS) of OP-2 hospital examined the patient and as per Rules and Regulations gave official permission letter for CT Scan head to be done from Avishkar Diagnostics Centre (P) Ltd. at Asansol (OP-9). The patient attendants, on their own accord, took the patient to Asansol and after CT scan brought her back to the OP-1 Hospital. It is pertinent to note from the BHT that the patient’s attendants were not willing to take the patient elsewhere and same was written in BHT.
The C.T. Scan report revealed normal study of Brain and Skull. Scalp swelling over Ieft side of occiput. It is pertinent to note that the PM report was contrary to the C.T. Scan report. In our view, from the PM report, it was difficult to find out the actual nature of the injury, thus simply because the patient did not survive, the treating doctors or the hospital should not be held liable. The patient’s attendants never complained against the hospital for non-availability of ambulance to take the patient to Asansol and back to the hospital.
It is further noted that, the State Commission sought an expert opinion from NIMHANS, Bangalore. The opinion dated 08.01.2012 stated that there was no Prima Facie evidence of any medical negligence in the management of the patient.
I have perused few statements/evidence filed by the doctors at K.G.Hospital. The statement of Dr. A. K. Roy, DMO (Anesthesia) is more crucial in the instant case. It is reproduced as below:
On Sunday (02/05/2004) I received a phone call from Dr. B.K. Samanta that one child in ICU is serious and is to be attended immediately. After receiving the phone call I rushed to the Hospital and in the ICU I saw the child was in gasping condition. I saw that Dr. Kumar was attending the patient. The respiration was stopped and immediately I incubated the patient and put her in the ventilator in positive pressure ventilation with 100% Oxygen. However, the pulse became weakened and arrhythmia developed and then it became a systole. Then Dr. Nath was immediately consulted over telephone and also attended the patient. Then the child was kept on temporary external pacing. Since then the child was continuously kept on ventilator, pacing and on the monitor. The party wished for consultation of outside doctor and we agreed at about 2.30 PM Dr. Rakshit, Neurologist from Asansol came and opined that brain steam death had occurred. However, he advised not to declare death at that moment and advised to give injection Solimedrol IV.
Later in the evening with the consultation with Dr. Kumar the patient's death was declared at about 7.30 PM and all the supports were removed. The dead body was sent to the mortuary.
Another statement of Dr. S. Nath, Sr. DMO, is reproduced as below:
I was called upon by Dr. S. Kumar telephonically at about 11 AM on 2.5.04 regarding one critical ICU patient. I attended immediately and found that the patient of Bed No. 1 who was admitted with head injury 2 (two) day's back and getting C.V. resuscitation by Dr. S. Kumar and Dr. A.K. Roy. The patient already was on artificial respirator and necessary emergency medicines were given. As there was inadequate heart beat the patient was immediately put on external temporary cardiac monitor pace maker and the process continued. The patient did not resuscitate. The respirator was on. The declaration of death could not be done immediately due to the following two reasons.
Possibility of total chaos (even bodily humiliation) and
The patient was on artificial respirator.
On careful perusal of chronology of treatment, it is evident that after admission, for first two days (30.04.2004 and 01.05.2004) the patient was treated conservatively by Dr. S. Gupta. On 01.05.2004, during night duty, Dr. A. Kumar, examined the patient, who complained of feeling uneasiness and unable to sleep. She was given 1 cc injection Diazepam.
On 02.05.2004 (Sunday) at about 6.30 A.M., the patient had an attack of convulsion. The ICU doctor managed the crisis with standard regime of injection Epsolin and Diazepam. It was informed to Sr. DMO, who at about 7.00 A.M., immediately attended the patient and found the patient sedated, her pulse and BP were stable. The Sr. DMO consulted Dr.(Mrs.) N. Mitra, Pediatrician about further treatment.
As per the explanation given by Dr. Subimal Gupta (the treating surgeon) to the CMS of KG Hospital, dated 12.06.2004, he took a written permission to leave Chittranjan, on Saturday 01.05.2004 i.e. one day before itself. As he was about to leave Chittaranjan on 02.05.2004, he received a call from Dr. A. Kumar. Therefore, he immediately attended the patient and found her stable. He informed the patient’s party about his absence as he was going out of station and Dr. S. Kumar would be on call. According to Dr. Gupta, the cause of death was due to following consequences:
Brain swelling (cerebral oedema) is a common and frequently fatal complication of head injury which may develop within minutes or many hours of injury.
Post traumatic cerebral ischemia, a secondary brain injury.
Subacute subdural hematoma which may apparent after days and may progress rapidly.
Post-trauma loss of normal cerebral vascular autoregulation. In brains suffering from even minor traumatic injury where may be a sudden loss of normal autoregulation thus Cerebral oxygen delivery is threatened immediately.
Post traumatic epilepsy itself may cause cardiorespiratory during statue.
We have perused the list of patient in year 2004 (page 24-26) It revealed most of the patients with accident/head injury were treated at OP-1 hospital. Few were referred to Dhanbad Hospital or BN Singh Hospital as their referral hospitals.
I have perused the confidential report of C.M.S. to C.M.D. / Eastern Railway / Kolkata. It was stated that Dr. S. Gupta left Chittaranjan early in the morning on 2.5.2004 after getting permission of competent authority on 01.5.2004 to attend his ailing mother-in-law at Dhanbad. The report also considered the statements of doctors, matrons and nurshing sister involved in treatment of the patient on 02.05.2004. Accordingly, the report stated that:
· “it is clear from statements of the matrons and nursing sister, it is clear that during handing over charges at 07.00 am on 02.05.2004 the patient was quiet and sedated.
· It was 10.15 am when they found the patient was having high pulse rate when they inform Dr. B.K. Samanta.
· From Dr. B.K. Samanta's statement it is clear that Dr. Gupta told him over telephone to give a report to the party, about the detailed treatment given to the patient as party wanted to refer their patient to another outside doctor.
· From Dr. S. Kumar's statement it is clear that Dr. Gupta had informed him about the patient and that she got convulsion.”
I have perused the year wise of details register (Document K) of Head injury patients’ name, registration number, date of admission at K.G.Hospital. It revealed that number of patients were treated successfully at OP-1 hospital and few were referred to other hospitals as needed. Some patients could take on their own risk to other hospitals on written undertaking in the BHT from the attendants.
Let us understand the law laid down by the Hon’ble Supreme Court in its catena of judgments. In the case of Bombay Hospital & Medical Research Centre vs. Asha Jaiswal & Ors.[ 2021 SCC OnLine SC 1149], it was held in paragraphs 32 and 34 of judgment as below: -
In C.P. Sreekumar (Dr.), MS (Ortho) v. S. Ramanujam[(2009) 7 SCC 130], this Court held that the Commission ought not to presume that the allegations in the complaint are inviolable truth even though they remained unsupported by any evidence. This Court held as under:
"37. We find from a reading of the order of the Commission that it proceeded on the basis that whatever had been alleged in the complaint by the respondent was in fact the inviolable truth even though it remained unsupported by any evidence. As already observed in Jacob Mathew case [(2005) 6 SCC 1 : 2005 SCC (Cri) 1369] the onus to prove medical negligence lies largely on the claimant and that this onus can be discharged by leading cogent evidence. A mere averment in a complaint which is denied by the other side can, by no stretch of imagination, be said to be evidence by which the case of the complainant can be said to be proved. It is the obligation of the complainant to provide the facta probanda as well as the facta probantia."
Recently, this Court in a judgment reported as Dr. Harish Kumar Khurana v. Joginder Singh & Others[(2021) SCC Online SC 673] held that hospital and the doctors are required to exercise sufficient care in treating the patient in all circumstances. However, in an unfortunate case, death may occur. It is necessary that sufficient material or medical evidence should be available before the adjudicating authority to arrive at the conclusion that death is due to medical negligence.
Similarly in Jacob Mathew’s case[(2005) SSC (Crl) 1369], it was held as under:
“When apatientdiesorsufferssomemishap,thereisatendency to blame the doctor forthis.Things have gone wrong and, therefore, somebody must be punished for it. However, it is well known that even the best professionals, what to say of the average professional, sometimes have failures. A lawyer cannot win every caseinhisprofessionalcareer but surelyhecannot bepenalized forlosingacaseprovidedhe appeared in it and made his submissions.”
Based on the discussion above and the opinion of NIMHANS, Bangalore, various statements of hospital authorities and respectfully following the precedents (supra), I do not find any negligence or deficiency in service either from the treating doctors or the K. G. Hospital. Thus, it is difficult to attribute medical negligence in the instant case.
The Order of State Commission is affirmed and the Appeal is dismissed being devoid of merit.
However, there shall be no orders as to costs.