Decided on November 20,2007

Kalinga Hospital Ltd. Respondents


- (1.) MR . Justice R.K. Patra, President -The complainants allege that due to the medical negligence and defective operation conducted by the opposite party Nos. 2 and 3, Ullolakanti Bhuyan died. The complainant No. l is the widow of Ullolakanti Bhuyan (hereinafter referred to as the deceased). The complainant No. 2 is their minor son. The complainant Nos. 3 and 4 are the parents of the deceased. The case of the complainants is that the deceased was a healthy young man and was a practising lawyer at Balasore. On 28.2.2000, it was diagnosed in the Durga Nursing Home, Balasore that he was suffering from R.H.D. M/S. A local Cardiologist (Dr. Gopinath Parida) was treating him. He took his x -ray, E.C.G. and ECHO at Balasore and referred the case to Dr. Mahendra Prasad Tripathy (opposite party No. 3) at Kalinga Hospital, Bhubaneswar (opposite party No . 1) on 1.4.2000. On 2.4.2000, the E.C.G. -AFC, EVR, etc. of the deceased were recorded at the Kalinga Hospital. Dr. J.P. Das, a visiting Cardiologist of the Kalinga Hospital examined the deceased and diagnosed as Heart M/S. He also took ECHO, etc. and did not find any LA clot. On 11.7.2000, the opposite party No. 3 took ECHO cardiogram of the deceased. The opposite party No. 2 - Dr. R.C. Raichoudhury examined the deceased and even after going through the ECG report, x -ray report, etc. did not pay any importance to the gravity of his health condition. He did not prefer C.M.V./MVR/Angioplast treatment which are less costly, but insisted for DVR which was not required. The allegation of the complainants is that opposite party No. 2 preferred DVR to earn higher income. He fixed 12.2.2001 and 13.2.2001 for admission and operation of the deceased. Although he advised the complainant No. 4 to collect six units of fresh blood, he did not advise for fresh ECHO/2D/ECHO/TEE, etc. to ascertain the cardiac position before conducting operation. On 12.2.2001, the deceased took admission in the Kalinga Hospital at about 9 a.m. He was physically and mentally good. As required for the surgery, a sum of Rs. 2,08,000 was deposited towards package charge of operation, cost of valves, medicine, etc. The opposite party No. 2 without taking fresh ECHO, etc. did open heart surgery of the deceased on 13.2.2001. He replaced mitral valve and aortic valve. The surgery/operation commenced at 10 a.m. and was over by 4.30 p.m. Around 7.30 p.m., the deceased came to senses. He started talking next day morning. The complainants desired to get the deceased checked by Dr. J.P. Das - the visiting Cardiologist, but the hospital authorities did not allow it to be done. The opposite party No. 2 and his associates left Bhubaneswar for Calcutta to attend a conference on 16.2.2001 without attending to the deceased. The opposite party No. 2 returned from the conference on 18.2.2001. During the period from 14.2.2001 to 20.2.2001, the complainants were told that the condition of the patient was stable. On 19.2.2001 at 10 a.m. E.C.G. of the deceased was done. On 20.2.2001 at 8 a.m. he was forcibly shifted from ICU -I to ICU -II, although the complainants insisted for his stay in ICU -I for some more days to observe his condition and stability. In ICU -II there was no life support equipments. From 8 a.m. till mid -day his condition was usual and he was eating, reading, talking, walking, etc. He was also watching T.V. and was going to bath room. At about 1 p.m., the deceased felt pain in his heart and requested the attending nurse to call for the doctors to attend him immediately as there was no doctor in ICU -II. At 2.30 p.m. he became unconscious. Opposite party No. 2 and his associates Dr. Mohanty and Dr. Patra all were in O.T. room, but they did not come immediately to attend the deceased. At 3 p.m., opposite party No. 2 came and reopened the heart of the deceased on the bed itself and massaged it. He reoperated the heart without fitting life support machine. Due to such reopening of the heart and vigorous massage, the condition of the deceased became critical and functioning of his both kidneys was affected. Blood pressure came down and he was taken to ICU -I. At about 5 p.m., the complainant No. 4 was asked to collect four units of fresh blood which was arranged immediately. The opposite party No. 2 stated that due to excess bleeding from the heart, the condition of the deceased became serious and re -operation was taken up to avoid it. On 21.2.2001 morning passing of urine of the deceased was stopped and both the kidneys failed functioning. The opposite party No. 2 was requested to take up dialysis to bring both the kidneys of the deceased to function, but it was not done, probably dialysis facilities were not available in the hospital. On 22.2.2001, the condition of the deceased became serious and he ultimately died on 23.2.2001. According to the complainants, the deceased died due to negligence of the opposite party No. 2.
(2.) WRITTEN version has been filed on behalf of the opposite party Nos. l and 2. Opposite party No. 3 has filed a separate written version denying his involvement in the operation of the deceased. He has stated that the deceased consulted him as an outdoor patient in the Kalinga Hospital and he had not taken any part in his operation. Opposite party Nos. l and 2 in their written version denied the allegation of negligence.
(3.) TWO questions arise for consideration: (i) Was the open heart surgery done by the opposite party No. 2 on 13.2.2001 successful? (ii) If it was successful, did the deceased die on 23.2.2001 due to negligence of the attending doctors or some other reasons? The death certificate shows that the deceased was aged about 40 years and irnmediate cause of his death was "cardiac pulmonary failure". The antecedent cause was "post DVR Arrythmia leading to acute renal failure". The legal position is now well settled that a doctor will not be guilty of negligence if he has acted in accordance with the practice accepted as proper by a responsible body of medical men skilled in that particular area and if he has acted in accordance with such practice merely because there is another opinion taking a contrary view, it will not make him liable for negligence. In this connection, it is appropriate to refer the weighty observation of McNair J. in Bolam v. Friem Hospital Management Committee. It is as follows: "I myself would prefer to put it this way: a doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art. Putting it the other way round, a doctor is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion that takes a contrary view.";

Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.