NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
 
REVISION PETITION NO. 315 OF 2016
 
(Against the Order dated 30/10/2015 in Appeal No. 142/2013 of the State Commission West Bengal)
1. DR. SUTAPA DASGUPT & ANR.
P-13, JAYSHREE NAGAR, DAKHINESWAR,
KOLKATA-700076
WEST BENGAL
2. THE SUPERINTENDENT, ZENITH SUPER SPECIALIST HOSPITAL
9/3, FEEDER ROAD,RATHTALA, P.S. BELGHORIA, KOLKATA-700056
24 PARGANAS (NORTH)
WEST BENGAL
...........Petitioner(s)
Versus 
1. TAPAN KAR & ANR.
S/O LATE MANTU KAR, 104, B.T. ROAD, BONHOOGLY TENEMENT SCHEME, BLOCK 1/3/8,
KOLKATA-700108
WEST BENGAL
2. DR. SUPARNA SEN
SWAPNIS 40/3, KASHI NATH DUTTA ROAD,
KOLKATA-700036
WEST BENGAL
...........Respondent(s)

BEFORE: 
 HON'BLE MR. JUSTICE AJIT BHARIHOKE,PRESIDING MEMBER
 HON'BLE MR. ANUP K THAKUR,MEMBER

For the Petitioner :
Mr. Sanjoy Kumar Ghosh, Advocate
For the Respondent :
For Respondent no.1 : Mr. Sourav Roy Choudhary, Advocate
For Respondent no.2 : Mr. Anjan Chakraborty, Advocate

Dated : 18 May 2017
ORDER

This revision is directed against the order of the State Commission West Bengal dated 30.10.2015 in first appeal No.FA/142/2013.

2.       Briefly stated, facts relevant for the disposal of the revision petition are that respondent No.1 Tapan Kar filed a consumer complaint in District Forum, Barasat District, North 24 Parganas alleging that his wife Smt. Gopa Kar during her pregnancy was under the continuing treatment and medical care of Dr. Suparana Sen (opposite party No.1). On 14th December, 2010 opposite party No.1 told Smt. Gopa Kar that child was in good condition and it would be better if opposite party No.1 undergoes caesarean section for early delivery of child. Thus, on the advice of opposite party No.1 the complainant admitted his wife at Zenith Super Specialist hospital (petitioner No.2). The hospital offered a package of treatment for Rs.13,000/-. The amount was deposited in the office of hospital. It is alleged that on 15th December, 2010 at around 8.30 am caesarean section surgery was done and a male child was born to Smt. Gopa Kar.

3.       It is the case of the complainant that Dr. Sutapa Das Gupta, Anesthetist, before surgery administered anesthesia in the spinal cord of the patient. The wife of the patient on regaining consciousness after delivery complained that her lower limbs were paralyzed and there was no sensation before or at the time of passing urine and stool. The opposite party doctors on being informed about the aforesaid complaint had a conference with Dr. Narain Banerjee and Dr. Sagar Bose. The team of the doctors decided that the patient required immediate MRI. The wife of the patient was then taken to the North City Specialist Centre for MRI. The MRI report was received on 18.10.2010. The doctors at Zenith Super Specialty hospital treated the patient Ms. Gopa Kar till 23rd December, 2010 when she was referred to Bangur Institute of Neurosciences, where surgery was conducted to remove the clotted blood. After the surgery at Bangur Institute of Neurosciences the complainant was told that it was not possible to predict how much his wife would recover from her situation. After the discharge of his wife from Bangur Institute of Neurosciences on 29.12.2010 the complainant approached Dr. Pankaj Bajpai and as per his advice he started physiotherapy for his wife which was stated to be continuing at the time of filing of the complaint at the monthly expenses of Rs.6,000/-. According to the complainant the opposite party doctors were negligent in treatment of his wife. Hence the complaint.

4.       Opposite party No.1 in its written statement admitted that Ms. Gopa Kar was under her treatment and a caesarean section surgery was conducted for delivery of child by the patient on 15th December, 2010 at opposite party No.3 hospital. According to opposite party No.1, opposite party No.2 had rightly administered anesthesia in the spinal cord of the patient and there was no medical negligence on the part of the opposite doctors or the hospital. Opposite parties Nos. 2 & 3 have also filed similar written statement denying all the allegations of medical negligence.

5.       The District Forum on consideration of pleadings and the evidence found the opposite parties guilty of medical negligence. The complaint was accordingly allowed and opposite parties including the petitioners were directed as under: -

          “Ordered that the complaint be and the same is allowed on contest with cost of Rs.10,000/- against the opposite parties.

          Opposite parties are hereby directed to pay a sum of Rs.12,00,000/- as compensation to the wife of complainant i.e. Gopa Kar aged about + 24 years for causing her permanent disability and loss of sensation on the both lower limbs from waist to toe and causing permanent mental pain and agony till her death and said amount may be paid by each OPs to the extent of Rs.4,00,000/- also but liability to the OPs is joint and severally in respect of total compensation.

C.C. Case No.144/2011

          OPs are directed to comply with the order within one month from the date of this order failing which for disobeyance and non compliance of Forum’s order and for each days delay OPs shall have to pay an interest at the rate of 8% over the said amount till its final and full payment. Further for deliberate intention for disobeyance of Forum’s order penal action may also be taken.”

 

6.       Being aggrieved of the order of the District Forum, two appeals being FA/142/2013 and FA/872/2013 were filed by the opposite parties. The State Commission on re-evaluation of evidence did not find merit in the appeals. Appeals were accordingly dismissed. Being aggrieved the petitioners have preferred the instant revision petition.

7.       We have heard learned counsel for the parties and perused the record.

8.       Learned Shri Sanjay Ghosh, Advocate for the petitioners has contended that the impugned orders of the Fora below are based upon erroneous appreciation of facts. It is contended that the Fora below have return the finding of medical negligence on the basis of conjecture and surmises in utter disregard of the medical record. It is further contended that the State Commission has gravely erred in observing that doctrine of Res Ipsa Loquitor is squarely applicable to the facts of the case including the law laid down by this Commission in the case of Tagore Heart Care & Research Centre Pvt. Ltd. & Anr. vs. Mrs. Kanta [2011-(CTI)-GIX-0915-NCDRC] wherein it was held as under: -

Mere fact that the patient suffers some adverse effect during or after the surgery is not enough to take a frog-leap and say that it is a case of ‘Res Ipsa Loquitor.’

 

9.       Learned counsel for respondent No.1 on the contrary has argued in support of the impugned order.

10.     We have considered the rival contentions and perused the record. It is not in dispute that patient Ms. Gopa Kar was admitted for delivery of baby by caesarean section surgery at Zenith Super Specialty Hospital on 15th December, 2010. It is also not in dispute that on 15th December, 2010 she was administered anesthesia by petitioner No.1 in her spinal cord and thereafter caesarean section surgery was conducted and she delivered a male child.

11.     On perusal of prescription dated 16th December, 2010 filed on the record we find that Ms. Gopa Kar, female, aged 23 years had complaint of flaccid paraplegia D12 Dermatoma and she was advised MRI of dorsal spine with screening of cervical area (with contrast) VEP Study. Admittedly Gopa Kar was sent for MRI to North City Imaging Centre. The copy of the report dated 18th December, 2010 of North City Imaging Centre is available on record which reads as under: -

“Patient ID21359133

Patient Name: MRS. GOPA KAR Ag: 23 Years  Sex: Female

Ref. By: Dr. SUPARNA SEN

Test Date: 18/12/2010

Reporting Date: 18 Dec. 2010

MRI OF DORSALSPINE

PROCEDURE

Non contrast T1 & T2 as well as post contrast (Gd-DTPA) enhanced TI weighted spin echo images taken in different planes including FAT SAT, GRE & STIR sequences of dorsal spine alongwith T2 weighted sagittal Images (screening) of servrcai & lumbo sacral spine.

FINDINGS

The spinal canal shows multiple loculated collections (hyperintense on T1 & T2 images becoming hypointense on GRE) longitudinally in the anterior aspect of spinal canal from the level of 012 vertebral body extending downwards upto lower lumbar region (L4) producing marked extrinsic compression on the anterior thecal sac sac and nerve roots 1 cauda equine may be due to partly subdural & partly epidural early subacute haemerrohagic collections.

Slightly irregular 7 serpiginous mildly hypointensities noted mainly longitudinaly in the hyperintense thecal sac of lumbar canal on T2 images? Nature, may be due to descending nerve roots & cauda equine with or without associates vascular malformations. Note also longitudinal oedema in the lower dorsa cord & conus at D12 & L1 vertebral level may be due to compression from the ? epidural & subdural haemorrhagic collections anteriorly in the spinal canal.

Rest of the dorsal s cervical cord otherwise showing normal signal pattern & caliber with smooth outlines being surrounded by normal thecal sac

Post contrast duty reveals no focal abnormal contrast enhancement in the spinal cord, thecal sec rest of the spinal canal.

No posterior disc bulging noted at any level.

No bony canal stenosis seen at any level.

No abnormal perivertebral soft tissue thickening noted.

Suggested clinical correlation and relevant investigations including follow up MRI and if necessary OSA for further evaluation.

Dr. S.P. BHOWMIK

B.Sc. (Hons.) MBBS (Cal.) DMRD (Cal)

SENIOR CONSULTANT RADIOLOGIST”

 

12.     On careful consideration of the medical record, including the MRI report, we find the petitioner opposite party guilty of medical negligence.  No doubt, the administration of anesthesia in the lumber region is a blind process in which possibility of injury to blood vessel resulting in hemorrhage cannot be ruled out.  The question is as to whether the opposite parties ensured proper treatment and care of the patient Gopa Kar during the post  surgical recovery period? 

13.     The answer to the above question is in the negative in view of the MRI report.  On perusal of MRI report dated 18.12.2010, it is evident that MRI report confirmed the evidence of epidural and subdural hemorrhagic collections anterior to the spinal cord.  There is a longitudinal oedema in the lower dorsa cord and conus at D12 and L1 vertebral level.  Thus, it was cause of compression of cord leading to neurological symptoms in the patient like patient could not move both lower limbs and there was bowel and bladder disturbance also.

14.     As per the medical protocol, the opposite party hospital and its doctors on receiving the MRI report were required to take immediate remedial steps like surgical decompression of the cord.  From the discharge certificate issued by opposite party hospital, it is clear that opposite parties failed to undertake immediate decompression surgery or to refer the patient to some competent neuro-surgeon.  The aforesaid delay of four days in our considered view have proved fatal and aggravated the treatment of patient Gopa  Kar, which obviously is a case of grave negligence.

15.     In view of the discussion above, we do not find any fault or infirmity in the impugned order which may call for interference in exercise of revisional jurisdiction.  Revision Petition is, therefore, dismissed.

 

 
......................J
AJIT BHARIHOKE
PRESIDING MEMBER
......................
ANUP K THAKUR
MEMBER