Why A Case claiming Rs.1/- compensation dismissed. ? Adv. ROHiT ERANDE ©

A Case claiming Rs.1/- compensation  dismissed.  

Technical lapses or improper documentation, cannot be attributed to Medical Negligence. 

Adv. ROHiT ERANDE ©

Dr. SIDDHARTHA S. MOOKERJEE & anr.,   V/s.

MADHAB CHAND MITTER & M/S. APOLLO GLENEAGLES HOSPITAL LTD., KOLKATA.

  REVISION PETITION NO. 645 OF 2020

  (Against the Order dated 13/02/2020 in Appeal No. 1313/2017 of the State Commission West Bengal)

BEFORE  NCDRC: 

HON'BLE DR. S.M. KANTIKAR ,PRESIDING MEMBER & HON’BLE Mr. BINOY KUMAR, MEMBER

 

Judgment Link :

http://cms.nic.in/ncdrcusersWeb/GetJudgement.do?method=GetJudgement&caseidin=0%2F0%2FRP%2F645%2F2020&dtofhearing=2022-08-26

Brief Facts :

1.          The Complainant’s wife   Mrs. Susmita Mitter ( ‘patient’) was under chemotherapy treatment of metastatic ovarian cancer.  She was critical, in terminal stage and on ventilator support.  It was alleged that on 30/07/2014 night due to negligence and some technical lapses from the doctors in ICU, it caused death of patient. Being aggrieved due to conduct of treating doctors, the Complainant initially filed the Complaint before the State Commission to claim Re. 1/- as compensation.  The State Commission for want of pecuniary jurisdiction dismissed the Complaint with liberty to file fresh complaint before the appropriate forum.  Thereafter, the Complainant filed a Complaint before the District Forum, Kolkata.  According to the Complainant the value of the life of his wife could not be made, but was praying a token sum of Rs.1 (Rupee one) as compensation for the deficiency in service of the ICU doctor on duty.

2. The District Forum, Kolkata (I) vide its Order dated 13.10.2017 dismissed the Complaint    as the Complainant miserably failed to prove the allegations of Medical Negligence or Unfair Trade Practice on part of Doctors. 

 3.       Being aggrieved, the Complainant filed an Appeal before the State Commission, which was allowed.   The appeal was allowed vide Order dated 13.02.2020 with the following observations:

"Since the complainant does not pray for any substantive amount of compensation, more discussion on this issue would be a fruitless exercise, rather concurring with the findings of the Board and Experts’, as quoted hereinabove we find substance in the allegations of carelessness of the Hospital Authority as well as the attending Doctors i.e. the OPs/Respondents herein and we find substance in the argument, as advanced by the Learned Counsel for the Appellant.

Hence, we allow the Appeal set aside the judgment impugned and dispose of this Appeal by upholding the fact that the complainant had sufficient cause to raise his grievance against the OPs/Respondents but we do not impose any penalty by awarding compensation or cost in the light of the decision of the Hon’ble National Commission in Ramesh Kr.Sihan Hans -Vs- Goyal Eye Institute and Ors (reported in 2012(2) CPR 424 (NC). Thus we dispose of this Appeal accordingly with the aforesaid observations."

 

4.       Being aggrieved, the hospital (OP-1) and the doctor (OP-2) have filed two Revision Petitions.

Held :

1. The NCDRC relied upon  the expert committee board of NRS Medical College which was comprising of five members headed by HOD, Department of Forensic & State Medicine as a Chairperson and the  Board in turn  sought opinion of Prof. Ajay Gupta, Medico legal expert,and Dr. Ajay Gupta  stated that death of Mrs. Susmita Mitter was due to rash and negligent act on the part of the consultants and other attending doctors. 

2. The medical board made following observations:

a. The patient has not been attended by the doctors of surgical ICU from 2 A.M. of 30.7.2014 to 9 a.m. same day as there is no documentation of notes. Such serious patients should be attended frequently.

b. There is no documentation of notes informing patient’s relatives about the seriousness of patient’s condition.

c. The treating consultants were not informed about the deterioration of patients condition as there is no documentation of notes.

d. However no definite evidence of absence of any doctor on duty of surgical ICU (as complained by the petitioner) was not found as there are notes at 2 a.m. on 30.7.2014 and 9 a.m. on 30.7.2014. It can only be confirmed if attendance sheet and duty roster of doctors of that particular day can be checked.

 5. The complainant also filed a complaint (C98/2015) before the West Bengal Medical Council(WBMC) Kolkota. But the WBMC concluded that “No negligence could be substantiated against Dr. Siddhartha Soman Mukherjee and Dr. Nilanjan Indu”, The relevant observations of WBMC are reproduced as below:

a. Dr. Siddhartha Soman Mookerjee (was on duty from 7 pm of 29.04.2014 to 7 am on 30.04.2014).  He left the hospital at 7.05 am (as per biometric record) & Dr. Nilanjan Indu was (on duty from 10 am of 29.07.2014 to 10 am of 30.07.2014).  Both were rotating registrar of ICU working under the instructions of primary consultant and were equally responsible for all the patients admitted to ICU during duty hours.

b. The ICU record shows till 2 am on 30.07.2014.  Sr. S.S. Mookerjee mentioned the findings and duly written the instructions.  It was observed that Dr. Nilanjan Indu attended the patient in the morning as per requirement.  The patient was very critical with terminal ailments during last few days.

 6.    Thereafter by the Complainant preferred an Appeal before the Board of Governors in Suppression of MCI and the   Ethics Committee  on 26/02/2019 held that(operative para)

“…The Ethics Sub-Committee after hearing both the parties in detail and after going through all the case records concluded that there is no infirmity in the order dated 21.05.2018 of the West Bengal Medical Council and therefore, the Ethics Committee decided to upload the same.”

7. THE NCDRC observed that the act of petitioners could be attributed to the technical lapses or improper documentation of the treatment of terminally ill patient. In our view, in the instant case the “doctrine of loss of chance” is also not come to the help of Complainant. 

But it was also held that, a patient’s claim of loss of chance because of negligence must also establish actual harm specifically caused by the delayed treatment or diagnosis.  Admittedly, from the medical record,   it is evident that the patient was in very critical stage and under proper supervision and treatment.

8. The NCDRC relied upon the judgment of  Hon’ble Supreme Court in Kusum Sharma & Others vs Batra Hospital & Medical Research Centre and others[(2010) 3 SCC 480] wherein it has been observed that:

Consumer Protection Act, (CPA) should not be a "halter round the neck" of doctors to make them fearful and apprehensive of taking professional decisions at crucial moments to explore possibility of reviving patients hanging between life and death.

 It was further observed as,

“It is a matter of common knowledge that after some unfortunate event, there is a marked tendency to look for a human factor to blame for an untoward event, a tendency which is closely linked with the desire to punish.”

 9.    Relying upon the opinion of WBMC, the Medical Board and following the principles laid down in the Kusum Sharma’s judgment (supra), we don’t think it was a case of strict liability of medical negligence. The patient was in SICU and very critical (in death bed). It should be borne in mind that, in most of the hospitals in our country the doctor: nurse ratio in the ICU is inadequate   to take care of all serious patients. Considering the peculiarity of the case, in our view, medical negligence was not evident from the doctor(s) in SICU except the technical lapses and coordination between the on duty doctors and nursing staff.

This is judgment , perhaps is the unique one and till date, in my opinion, no one has claimed Rs.1 as token compensation. The points which have been raised are equally important, technical lapses and coordination between the on duty doctors and nursing staff. The NCDRC has rightly put the finger on burning issue of inadequate the doctor: nurse ratio in the ICU  to take care of all serious patients and if the staff is increased the cost will increase and ultimately the patients would be liable to bear the same. yet again, this case is also emphasizing importance of documentation !  

Thanks and Regards

Adv. ROHiT ERANDE

Pune.©