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TRIPURA STATE CONSUMER DISPUTES REDRESSAL COMMISSION
U.B. Saha, Sobhana Datta and Narayan Chandra Sharma, Members
SANTI CHOWDHURY (KAPALI) - Appellant
Versus
SOCIETY FOR TRIPURA MEDICAL COLLEGE AND DR B.R. AMBEDKAR MEMORIAL TEACHING HOSPITAL, HAPANIA, AGARTALA - Respondent
Appeal Case No. 52 of 2016
Decided on : 04-04-2018
Paramartha Datta, Advocate, Amrit Lal Saha, Advocate
The lack of informed consent and post-operative care constitutes medical negligence, entitling the patient to compensation for medical expenses.
Headnote:
Medical Negligence - Consumer Dispute - [FACT OF THE CASE] The complainant underwent endoscopy at a hospital, resulting in a perforation in her esophagus, leading to serious health complications and substantial medical expenses. The hospital and the doctor denied negligence. [FINDING OF THE COURT] The court found that the hospital and doctor were negligent in not informing the patient of the risks and in providing post-operative care, leading to the complainant's suffering and expenses. [ISSUES] Whether there was medical negligence causing the perforation in the complainant's esophagus and if the petitioner is entitled to compensation. [RATIO DECIDENDI] The court held that while there was no direct negligence, the lack of informed consent and post-operative care constituted negligence, entitling the complainant to medical expenses. [FINAL DECISION] The court modified the awarded amount to cover the complainant's entire treatment cost and directed the hospital to pay the amount for their deficiency of service.
ORDER
U.B. Saha, J.
1. Both the appeals being Appeal Case Nos. A/52/2016 and A/13/2017 are directed against the judgment dated 21.11.2016 passed by the learned District Consumer Disputes Redressal Forum (hereinafter referred to as District Forum), West Tripura, Agartala in Case No.C.C.86 of 2015 whereby and whereunder the learned District Forum directed the appellants in Appeal Case No.A/13/2017 (hereinafter referred to as opposite parties) to pay an amount of Rs.3,50,000/- to the appellant in Appeal Case No.A/52/2016 (hereinafter referred to as complainant) as compensation for deficiency of service and cost of litigation. No other amount towards extra costs was awarded. Opposite party nos. 1 and 3 are directed to pay the said amount as they are vicariously liable for the act of opposite party no.2. Payment is to be made within two months, if not paid; it will carry interest @ 9% per annum.
2. As both the appeals are directed against the same judgment, they are taken up together for hearing and disposal.
Heard Mr. Amrit Lal Saha, Ld. Counsel appearing for the complainant as well as Mr. Paramartha Datta, Ld. Counsel appearing on behalf of the opposite parties.
Brief facts of the case needed to be discussed are as follows:-
The complainant went to Tripura Medical College & Dr. B.R. Ambedkar Memorial Teaching Hospital (hereinafter referred to as opposite party nos.1 and 3/TMC) on 09.09.2014 for treatment there. Dr. Kabita Baruah, opposite party no.2, advised her for endoscopy. Accordingly, endoscopy was done on her on 10.09.2014 by Dr. Baruah, but after endoscopy, her condition was very serious and intense pain was developed in her right lower chest and right upper abdomen. There was breathing problem also. So the opposite party no.2 referred her to ILS hospital to a Cardio Thoracic Vascular surgeon on 12.09.2014. Her condition became critical. Again endoscopy was done at ILS Hospital on 13.09.2014 and it was found that there was an abnormal hole in the esophagus which was caused by earlier endoscopy done at TMC Hospital. As her condition was deteriorating, she was admitted to ILS Hospital, Agartala under the care of Dr. Sharad D. Sonawane. She was also advised for endoscopic SEMS (self expanding metallic stent) placement by the consultant Dr. Sonawane at ILS Hospital, Agartala. But her family members got very much worried with the worsening condition of the complainant and got her discharged from ILS Hospital Agartala at 08.45 A.M. on 14.09.2014. Thereafter, she was immediately shifted by Air to Kolkata and got her admitted at Apollo Gleneagles Hospitals, Kolkata on that date itself, where a right sided chest drain was placed by Dr. U. Goenka (consultant Radiologist) on 15.09.2014 to drain out the hydropneumothorax. A sample from the drain fluid showed infection with the bacteria, slenotrophomonas, maltophilia. She received treatment for the infection. UGI endoscopy was conducted at Apollo Gleneagles Hospitals on 16.09.2014 which showed large fistula opening seen at 32 cm in esophagus. The fistula is a medical term meaning abnormal opening. The fistula was closed by applying ovesco clip during the UGI endoscopy on 16.09.2014. She remained admitted and treated in the Apollo Gleneagles Hospitals, Kolkata w.e.f. 14.09.2014 to 02.10.2014. In her complaint petition she also stated that due to negligence and lack of proper precautions and due care on the part of Dr. Kabita Baruah of TMC, Agartala, a perforation occurred in the esophagus (food pipe) of her on 10.09.2014 while the surgical intervention of esophagoscopy was done at the TMC Hospital, Agartala. The perforation further led to hydropneumothorax (collection of fluid and air between right lower and right inner chest wall) and bacterial infection which required prolonged painful and expensive medical and surgical treatment at ILS-Hospital Agartala and thereafter at Apollo Gleneagles Hospitals, Kolkata. In her complaint petition, she has also mentioned the amount spent by her for the
