NATIONAL CONSUMER DISPUTES REDRESSAL
COMMISSION
ORIGINAL PETITON
NO. 240 OF 2001
Mrs. Mandira Saha & Anr. … Complainants
Vs.
Dr. Ujjal Chatterjee & Anr. . … Opposite Parties
BEFORE :
HON’BLE MR. JUSTICE S.N. KAPOOR,
PRESIDING MEMBER
DR. P.D. SHENOY, MEMBER
For the Complainant … Mr. M.N. Krishnamani, Senior
Advocate with Mr. Devashish
Bharuka, Advocate
For O.P. No.1 … Ms. K.Iyer, Advocate with
Mr. Sanjay Ghosh, Advocate
For O.P. No. 2 … Mr. Jaideep Gupta, Senior
Advocate
with Mr. S.Bhowmick,
Mr.
Debmalya Banerjee, Advocates
DATED :
O R D E R
PER DR. P.D. SHENOY,
MEMBER
This
is a case pertaining to the death of the child suffering from Hirschsprung’s Disease
(H.D.) after seven days of its birth due
to the alleged negligence by a Pediatrician and Pediatrician Surgeon. The parents of the child have claimed
compensation of Rs.28 lakhs.
Facts of the Case:-
The Complainant
No.1, Mrs. Mandira Saha is the mother of the deceased child. Complainant no. 2, Shri Gopal Krishna Saha is
the husband of Mrs. Mandira Saha, Complainant no.1 and father of the
deceased child. Opposite Party no. 1, Dr.
Ujjal Chatterjee is a Consultant Pediatrician attached to the North Bengal Clinic at Siliguri, where
the delivery of the child and subsequent treatment took place. Opposite party no.2, Dr. Abhishek Biswas is a
Consultant Child Surgeon.
Mrs.
Mandira Saha conceived for the fifth time on 12.3.99 and consulted Dr. Salil Dutta,
Consultant Gynaecologist, the Family Physician on several dates after the 10th
week of the pregnancy till the date of delivery. On 27.8.99, the Complainant delivered a female baby at about
Case of the Complainant
a) Mr. Krishnamani,
Learned Senior Counsel for the Complainant argued that the Complainant, Mrs.
Mandira Saha had suffered four mis-carriages before she became pregnant. He quoted the sequence of physician patient interaction by
giving the following flow chart:
On
27.8.99 at Birth of Pre-mature Bottle feeding with Dexolac
27.8.99 Vomiting, non-passage 5% Dextrose I.V. started
Evening
of stool
28.8.99 Baby passed stool after Provisional Diagnosis
giving
flatus tube of
congenital megacolon
29.8.99
Cyanosis,
convulsion
Inj. Epsolin, Calcium Sandoz
30.8.99
Convulsion,
Injection
changed to Electrolyte
“P” fortified
with
25% dextrose
31.8.99
Respiratory Distress
1.9.99 Blood examined straight Reports collected in the evening
X-ray (abdomen
done) no adverse comments
1.9.99 Dr. Abhishek Biswas Dr. Biswas first examined the
consulted baby on 2.9.99
A case of
cogenial megacolon was consulted with Paediatric
Surgeon
after 5 (five) days of the provisional diagnosis.
2.9.99 Ba-enama was done by No Radiologist consulted
Dr. Chatterjee
without
proper
methods and
failed to
take
photographs.
3.9.99 Small incision on No
suction Rectal biopsy
L.I.F. then
again No post
operative
upper
transverse biopsy.
incision and
traverse
colostomy
done.
3.9.99
BABY DIED
b) Mr.
Krishnamani submitted that ‘proctinal’ was
given to the mother to suppress breast milk as can be seen from the discharge
summary. When in the hospital the mother
was not permitted to breast feed the baby.
The baby was kept in the incubator as the birth was premature and on 27.8.1999 it was given antibiotic
‘amikasin’ by way of injection. On
28.8.99, the baby passed stool after enema was given. The child was given Dextrose as a substitute
to breast milk. The baby became blue on 29.8.99 and the
doctors administered some injections. On
30th in the morning at 8.30
the child had convulsions but by
c) Hirschsprung’s
disease (H.D.), according to the Oxford Concise Medical Dictionary is:
“a congenital
condition in which the rectum and sometimes part of the lower colon have failed
to develop a normal nerve network. The
affected portion does not expand or conduct the contests of the bowel, which accumulate
in and distend the upper colon.
Symptoms, which are usually apparent in the first weeks of life, are
abdominal pain and swelling and severe or complete constipation. Diagnosis is by X-ray and by microscopic
examination of samples of the bowel wall, which shows the absence of nerve
cells. Treatment is by surgery to remove
the affected segment and join the remaining (normal) colon to the anus.”
d) Dr.
Chatterjee consulted Dr. Biswas who advised barium enema. According to Dr. Biswas this was done but Mr.
Krishnamani submitted that this was not done as the opposite party could not
produce the film. He argued that they
should have conducted another test viz., Rectal suction biopsy which was not done which only can confirm the
existence of the Hirschsprung’s disease.
He further submitted that they should have conducted another barium test
after 24 hrs. which could only further confirm the existence of this disease
which they have not done. On 3.9.1999, at
e) Mr. Krishnamani
quoted from the report of Dr. Swapan K. Jana,
Secretary, Society for Social Pharmacology,
In his analysis he has stated that
1.
Delayed response
for the confirmation of the diagnosis of the problems (P/D-Congenital megacolon)
of a precious child should be accounted as careless approach in health care
management.
2.
Contradictory
statement regarding the date of consultation with Dr. Abhishek Biswas, the use
of Amikacin and preparation of death certificate of the baby are the
blameworthy acts done by the doctors concerned.
3.
Unscientific
approach for Radiological investigations (Barium enema, absence of Radiologist etc.)
by Dr. Ujjal Chatterjee for a case of Cong. megacolon is a case of negligency which should be considered as an offence.
4.
Irrational
approach for surgical intervention by a Mch level paediatric surgeon (post
surgical biopsy was not done) is considered as a criminal offence.
f) He also
quoted Nelon’s Book on Pediatrics, 15th Edition 1933
“278.3 Congenital Aganglionic
Megacolon (Hirschsprung’s Disease) :
Hirshsprung’s disease is
the most common cause of lower intestinal obstruction in the neonate, with an
overall incidence of 1:5.000 live births.
Males are affected more often than females (4:1)”
“ In infancy Hirschsprung’s disease must be
differentiated from meconlum plug syndrome, meconlum, ileus and intestinal
atresia.
DIAGNOSIS.
Rectal manometry and rectal suction biopsy are the
easiest and most reliable indicators of Hirschsprung’s disease.
Radiological evaluation
should be performed without preparation to prevent transient dilatation of the
aganglionic segment. Twenty-four-hour
delayed films are helpful.
TREATMENT :
Once the diagnosis is established, the definitive
treatment is operative intervention. The
operative options are to perform a definitive procedure as soon as the
diagnosis is established or perform a temporary colostomy and wait until the
infant is 6-12 months old to perform a
definitive repair. There are three basic
surgical options. The first successful
surgical procedure described by Swenson was to excise the aganglionic segment
and anastomose the normal proximal bowel to the rectum 1-2 cm above the dentate
line.
g) According
to James A .O’Neil Junior & Ors.:
“A transition zone is occasionally seen in the distal
ileum. A 24-hour follow up radiograph may
demonstrate retrograde passage of barium into the more proximal small intestine
as well as failure of evacuation of the barium.
Biopsy remains the definite diagnostic technique”.
h) According
to Pediatric Surgery by Dr. A.K. Roy:
“ We should always take a Biopsy from colostomy site and see that ganglion
cells are present, so that the colostomy remains functioning.
Pre-operative preparation
Because of its potential to cause ototoxicity and nephrotoxicity
concomitant administration of any other aminoglycoside or drugs like Amphotericin. Colistin, Cephakiridine, Paromomycin, Viomycin,
Polymyxin B, etc. should be avoided. Also
Amikacin should not be given concurrently with diuretics like Ethacrynic acid
and Furosemide which are known to enhance the amino glycoside toxicity by
alleging the antibiotic concentrations in serum and tissues”.
Case of the Opposite Party No. 1
a) Learned
Counsel for O.P. No.1, Dr. Ujjal Chatterjee submitted that the complainant, Smt.
Mandira Saha has suffered four
mis-carriages and the child was suffering from congenital megacolon. The complaint was filed after two years after
the death of the child. The hospital was
not made a party and the complainant herself was not examined.
b) Ld.
Counsel for O.P. 1, Dr. Ujjal Chatterjee made reference to the written
submission made by Dr. Chatterjee. The records showed that complainant no. 1
had a previous history of high blood
pressure, mosaicism besides she was anaemic and was suffering from
Bronchiectasis. Immediately after its
birth, the neonate was placed in an Incubator at around
c) Subsequently
i.v. drip with 5% dextrose, fortified with 25% dextrose, was started as the
baby vomited and did not pass stool. The
treatment provided to the neonate from birth is recorded in the Bed Head Ticket
(BHT). Due to sufficient supply of
nourishments, the sugar level rose to 90 mg% on
d) He quoted
e) Ld. Counsel
for O.P.no.1 further submitted that the Complainants themselves had brought Dr.
Biswas, opposite party no.2 to the North Bengal Clinic who had clinically
examined the baby and made a preliminary diagnosis stating that baby was
suffering from congenital megacolon which is known in medical terminology as Hirschsprung’s
Disease which was written in the
BHT. A barium-enema screening was done
on the baby when Dr. Chatterjee pushed the liquid through the anus of the
baby. The machine was operated by the
technician and viewed by Dr. Chatterjee,
Dr. Biswas and complainant no.2. The
screening showed that there was a definite junction of distended and collapsed
loop and the condition of the baby was clearly viewed in the screen by all
present which indicted that the baby was suffering from Hirschsprung’s .Disease. The note for laparotomay operation was
explained to Complainant no.2 and his signature was obtained on BHT. Despite all efforts, neonate unfortunately
passed away on
f) Ld.
Counsel also submitted that Dr.
Chatterjee had exercised and administered necessary treatment to the premature baby
by adopting required established medical
process and practice, associated with
many psychological and clinical hazards.
This position is stated in “Essential Pediatrics” by O.P. Ghai as well
as in Nelsons Text book of Pediatrics
wherein it is stated that neonates have a very high morbidity rate. The opinion of Dr. Swapan Kumar Jana who is
not an expert in the field of
paediatrics cannot be considered
as an opinion of an expert and thus is devoid of any evidentiary value.
Case of the Opposite Party No. 2
a) Ld. Senior
Counsel for O.P. no. 2 quoted extensively
from the affidavit of Dr. Abhishek Biswas:
“ At about
b) Dr. Biswas
in his affidavit has stated that Dr. Swapan
Kumar Jana is a teacher in the department of Pharmacology and has no clinical
experience. Dr. Jana has no
specialization in Paediatrics Medicine or
Paediatric Surgery. Therefore, his
purported opinion has no value and cannot be treated as an expert opinion.
c) It is
stated that Baenema of the patient was conducted on 2.9.1999 at about
d) Dr.
Biswas had advised urgent operative intervention of temporary colostomy. He discussed the matter with the complainant
no. 2 and explained in detail the prognosis of laparotomy and sought for his
special consent which he has extended by signing the bed head ticket of the
baby. He performed the temporary
transverse loop colostomy on the baby which ended at about
e) The Ld.
Senior Counsel for O.P. no.2 submitted that Dr. Biswas conducted the temporary colostomy operation to watch the progress after 6-8
months. The doctor was very clear in his
mind that the child suffered from H.D. which itself is a dangerous
disease. Because other diseases
accompanied, the child had become very weak and there was abdominal distension resulting
in non-passing of stool and respiratory distress there was also selerema+ve. Medical diagnosis itself indicated clearly about
the existence of the H.D. The first
barium test showed that there was obstruction
in the large intestine. Accordingly
second one was not necessary. The rectal
suction biopsy itself is a full surgical procedure. The result will come only after 2-3
days. Facilities for rectal suction biopsy
were not available at Siliguri and probably not at Kolkatta. Therefore, taking the child only for
diagnostic test to
f) Bed
head ticket indicated that on 29.8.1999
at
g) It is
not feasible to record everything. The
mother was not permitted to give breast milk because condition of the child was
precarious. No physician would deprive the
child of mother’s milk.
Findings
a) We
have gone through the records of the case and heard the arguments of Mr.
Krishnamani, Senior Advocate, Counsel for the Complainants, Mrs. Mandira Saha &
Anr. and Ms. K. Iyer and Mr. Sanjay Ghosh,
Advocates for Dr. Ujjal Chatterjee and Mr. Jaideep Gupta, Senior Advocate for Dr.
Abhisek Biswas.
b) The
mother of the deceased child had four
miscarriages before this conception. She
was taking treatment from Dr. Salil Dutta,
Consultant, Gynaecologist. The complainant has no complaint against the Consultant
Gynaecologist or the hospital. Their
case is against the Consultant Pediatrician Dr. Ujjal Chatterjee and Dr. Abhishek Biswas, Consultant, Pediatric
Surgeon. The child was born pre-mature
at 34 weeks gestational period. The
child did not pass stools on the first day.
c) To
support his arguments, Ld. Senior Counsel
for the Complainant has quoted the
report of Dr. Swapan K. Jana, Secretary, Society for Social Pharmacology,
d) Hirachsprung’s
Disease. can be diagnosed clinically or through a barium X-ray. It is true that rectal suction biopsy would
doubly ensure the existence of disease but the facilities for the same were neither
available at Siliguri as stated by the opposite party on oath nor was the
complainant no.2 willing to take the baby away from the hospital to Kolkata or
to any other place. As regard consent of
parent for the procedure, the record shows that
Complainant no.2(father of the baby) had given his consent for the
surgical procedure.
e) The
complainant claimed that the child was normal and doctors in the Nursing home
deprived the mother the opportunity to breast feed her baby. There seems to be
no medical reasons to believe the arguments that the mother was kept away from
the baby and the hospital authorities did not permit the mother to breast
feed the baby as the baby was born
pre-mature and it was kept in the incubator and from day one it was sick and
had to be given several types of treatment.
In Breast Feeding in Practice – by Elisabet Helsing
with F.Savage King – page 51, Clause 6.3 --- it is stated that
6.3 Too little milk
“Just as some
mothers have too much milk before
their breasts have adjusted, so other mothers have too little milk at
first. This does not necessarily mean
that they will be less efficient milk producers later on. Many can produce enough milk and are able to
fee a baby normally after two weeks or so.”
As it is normal for
some mother not to have breast milk soon after the birth of baby, it was not
found necessary to record the same on the Bed Head Ticket. However, as the mother may have milk later on,
to prevent inconvenience to the mother after the death of the baby Proctinal
Tablet was prescribed.
f) Ld.
Counsel for Opposite Party no.1 argued that as regards the allegation of the
complainants that Opposite Party no. 1 had prescribed both Amikacin and Lasix,
together it is submitted that the baby was having respiratory distress on
g) Passing
stool and urine by the newly born baby on first day of the birth is a routine
activity of the neonate. But in this
case though the baby had passed urine and it did not pass stools on the first day and enema had to be given
for that purpose. Rectal suction biopsy is
also a surgical procedure which would have caused unnecessary inflictment of
pain and torture to the neonate when the doctors were certain that the baby was
suffering from H.D. on the basis of the clinical and X-ray test.
h) In the Essentials of Pediatric Surgery
by Marc I. Rowe, James A. O’Neill, Jr. and three Ors., published by Mosby, it is mentioned that :
“
Hirschsprung’s disease often presents in newborns as low intestinal obstruction
with or without sepsis. Although the
incidence of enterocolitis is variable, this complication makes the diagnosis and early treatment of
Hirschsprung’s disease urgent. The
successful treatment of infants or children with Hirschsprung’s disease depends
on prompt diagnosis and early treatment.
This generally involves a colostomy in the newborn period that is
performed on an urgent or emergent basis, depending on the clinical status of the
child” (emphasis supplied).
i) In
the text ‘Neonatal Surgery’, Third Edition
by James Lister and Irene M. Irying
published by Butterworths, it is stated that :
“ Vomiting
was one of the commonest symptoms, it was recorded to have occurred at some time
in 152 patients (88.4%)”.
“ Some
abnormality in the passage of meconium is characteristic feature of
Hirschsprung’s disease and this was observed in 85% of cases. Most often there was a delay in the
passage of meconium for more than 24 h after birth: in other instances only
a small amount of viscid meconium was passed” (emphasis supplied).
“ As a
result of swallowed air, abdominal
distension will be seen in most cases.
Occasionally the newborn baby may present with acute severe abdominal
distension, resulting in diagnostic difficulties and even to an exploratory
laparotomy”.
j) In
the Text on ‘Surgery of the Newborn,
edited by Neill V, David M. Burge, Mervyn Griffiths and P.S.J. Malone, it is
mentioned that:
“
If the child condition is deteriorating, operative decompression should be
considered to be mandatory as an emergency”
“Most
surgeons prefer a routine right-sided transverse colostomy. In patients with a long-segment
aganglionosis, an end colostomy just aboral to the transitional zone is often
preferable as a colon-saving procedure.
Corrective surgery is carried out later under protection by the earlier
transverse colostomy or without in the case of a previously made end colostomy”
(emphasis supplied).
The
extracts of the above texts bring out clearly that diagnosis and the treatment
of the neonate was done correctly by Dr. Chatterjee and Dr. Biswas.
k) Considering
the age and health of the mother,
several mis-carriages before the birth of this baby, pre-mature birth of the
baby, not passing the stools by the baby even 24 hours after the birth, visible
persistent complications in the health of the baby from day one getting
compounded day after day and the strenuous efforts made by the Paediatrician
and Paediatric surgeon to save the child in the hospital located in the remote
corner of the country leads us to only one conclusion that the doctors had
exercised due care and diligence which is normally expected from a qualified
doctor exercising reasonable care.
l) Supreme
Court of
" A person who
holds himself out ready to give medical advice and treatment impliedly
undertaken that he is possessed of skill and knowledge for the purpose. Such a person when consulted by a patient
owes him certain duties, viz. a duty of care in deciding whether to undertake
the case, a duty of care in deciding what treatment to give, or a duty of care
in the administration of that treatment.
A breach of any of those duties gives a right of action for negligence
to the patient. The practitioner must
bring to his task a reasonable degree of skill and knowledge and must exercise
a reasonable degree of care”.
m) In
this case we find that Dr. Chatterjee and Dr. Biswas possessed skill and knowledge to handle this case and
they have exercised the duty of care in undertaking the case, duty of care in
deciding what treatment to give and duty of care in the administration of that
treatment. They have brought to their task a reasonable degree
of skill and knowledge and have exercised a reasonable degree of care.
Accordingly
we hold that there was no negligence on the part of the Opposite party no. 1
and 2. The complaint is therefore,
dismissed. We express our deep sympathies
to the parents for the loss of the new
born baby despite the best efforts of
the doctors concerned.
.……....…………………….J
( S.N. KAPOOR )
PRESIDENT
.……....…………………….
(
P.D. SHENOY )
MEMBER
Vs