BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM,

ERNAKULAM.

Date of filing : 14/05/2009

Date of Order : 26/11/2012

Present :-

Shri. A. Rajesh, President.

Shri. Paul Gomez, Member.

Smt. C.K. Lekhamma, Member.

C.C. No. 259/2009

Between

And

O R D E R

Paul Gomez, Member.

1. The factual background :-

The complainant, a machine operator by profession had been suffering from spiking fever. Particularly, in the evening and pain in various joints since 2004. He had been undergoing treatment for the same in various hospitals in and around Ernakulam. Those treatments did not render any substantial relief to the complainant. At last on 14-05-2007, the complainant presented himself before the 2^nd opposite party physician in the 1^st opposite party hospital, the 2^nd opposite party straight away commenced Anti-Tuberculous Treatment (ATT) on 16-05-2007 without subjecting the patient to any substantial clinical examinations and investigations. In the opinion of the 2^nd opposite party, the complainant was afflicted with disseminated Tuberculosis with Tuberculosis Pericarditis. The treatment continued for nearly two months without subjecting the patient for any confirmative investigations. The treatment was asked to be continued for 60 days without due care and evaluation. Eventually the condition became worst, when he was shifted to Lakeshore Hospital, Maradu. They confirmed that the patient was suffering from stills disease and that the treatment at the 1^st opposite party hospital has caused the phenomenon of druig induced hepatitis to the complainant. The complaint is lodged with a view to getting expenses and compensation from the opposite parties for having committed deficiency in service in treating the complainant.

2. The opposite parties jointly filed version refuting the contentions raised in the complaint. The complainant was seen by the 2^nd opposite party on 14-05-2007. The complainant was clinically examined and different tests were conducted by the doctors of the opposite party hospital CT of chest and abdomen was conducted on 16-05-2007. They showed enlarged lymph nodes in the Retroperitoneum, mild ascites and minimal bilateral pleural effusion suggestive of Tuberculosis. Pathological tests conducted indicated the infection of Tuberculosis. Bone marrow examination and mantoux test proved negative. He was started on Anti-Tuberculosis drugs on 16-05-2007. He tolerated it in the initial stage and his liver function was found to be improving as indicated by the review on 04-07-20-0-7. He developed drug induced Hepatitis after completing Anti- Tuberculosis treatment for two months. Hence the treatment was discontinued. He was again examined on 29-06-2007 and his condition was found to be improving as indicated by the clinical tests. On 13-0702007, he was again seen by Dr. Akash Thomas Oommen in out patient Department. He was admitted on the same day as inpatient for jaundice and the patient showed features of Early Hepatic Encephalopathy, Anti-Tuberculosis treatment was discontinued. The opposite parties have taken proper and reasonable care in providing treatment to the complainant. The opposite parties had to start the treatment because tuberculosis is the most common infection presenting in this way and delay in starting treatment may prove very dangerous to patient's life. The compensation claimed in this complaint is exorbitant. This complaint is devoid of bonafides and hence deserves dismissal with compensatory costs.

3. The complaint was referred to medical expert for his opinion. The complainant was examined as PW1. Expert was examined as PW2. Exhibits A1 to A11, C1 and X1 series marked on the side of the complainant. National Insurance Company Ltd. was impleaded as additional opposite party 3. Set ex-parte. The 2^nd opposite party was examined as DW1. Exts. B1, X1 (a) (i) & (ii) and X1 (b) (i) marked on their side. Both sides were heard.

4. The following points stand out for determination :-

1. Whether the 2^nd opposite party has commenced the treatment without proper diagnosis?

2. Whether the opposite parties continued the treatment even after adverse side effects surfaced?

3. What are the reliefs, if any allowable?

5. Point No. i. :- Today medical treatment in private hospitals is, an unaffordable luxury to the common man. The complainant a machinist in a private company is one among them and this man was compelled by his recurring physical disorder had been virtually rushing from pillar to post in search of a real relief from his unknown disease. This ordeal continued for the poor man for nearly three years, when he finally climbed up the steps of the 1^st opposite party hospital on 14-05-2007. He was suffering from high spiking fever particularly in the evenings, and pain in various joints. He consulted the 2^nd opposite party who is the Head of General Medicine in the 1^st opposite party hospital. The 2^nd opposite party diagnosed the disease as a case of disseminated Tuberculosis. He was put on Anti-Tuberculosis Treatment (ATT) from 16-05-2007 for two months. Unfortunately due to this treatment, he was afflicted by Hepatitis which is a common side effect of such a treatment. When his condition worsened, he was shifted to Lakeshore Hospital, where his illness finally tracked by Dr. K.M. Mohammed Iqbal as Adult onset stills disease as stated in Ext. A6 Medical Report. It is also stated in the said report that the complainant was suffering also from hepatic encephalopathy (liver biopsy showing drug induced hepatitis). It is the say of the complainant that he was forced to undergo such a life threatening condition due to the negligence and carelessness in diagnosing the disease as well as continuing the ATT even after it was known that the patient had contracted drug induced hepatitis.

6. It is in this background, the allegation of deficiency in service has to be closely examined. The first limb of the patient's complaint is that the 2^nd opposite party has shown ugly haste which can be better described as fatal haste in as much as the doctor jumped into the conclusion that the disease affecting the complainant was nothing else than Tuberculosis. The contention of the complainant is that the doctor should have avoided taking hasty decision. Instead, he should have conducted relevant investigations and tests to clearly identify the correct ailment. In this regard, it is profitable for us to turn to the relevant portion in the version filed by the opposite parties, where it is stated as follows :-

“The allegation that without proper examination/tests and confirmation of disease, only based on symptoms, these opposite parties started ATT from 16-06-2007 is absolutely incorrect, unfounded unwarranted and calculated to mislead this Hon'ble Forum.”

In order to corroborate this stand, they have stated that they have conducted CT of chest and abdomen on 16-05-2007. They continued to highlight the physical abnormal condition of some of the internal organs and point out that ESR was 110 mm/1^st hour which was undoubtedly on the higher side. These dates along with other facts emboldened the doctor to start ATT in the clinical background of prolonged fever, deteriorating general condition and liver function tests suggestive of granulomatous Hepatitis. The 2^nd opposite party was examined as DW1 in the Forum. To the question that in Ext. X1 (b) (I), there is no suggestion of Tuberculosis, his answer was;

“There is suggestion.” witness adds, “There is lung involvement pleura involvement, pericardial involvement lymph mode involvement”.

7. Close analysis of these rival stances taken by both parties, is inevitable to arrive at truth. The opposite parties have admitted that they had started Anti-Tuberculosis Treatment before exhaustively investigating the patient clinically. Of course, CT scan was conducted. Ext. A2 would also show that preliminary evaluation for excision biopsy was carried out, but it was later abandoned for reasons best known to the 2^nd opposite party only eventhough Ext. A2 would show that specialists who were consulted had given green signal to proceed with biopsy. Of course, apart from CT scan some blood tests and liver function tests were done. It can be seen that ATT was commenced on 16-05-2007 itself before some tests were underway. In this context, it is pertinent to note the admission of DW1 at page 5 of his deposition that the suggestion of Tuberculosis was not there in X1(b)(i). Also it is a vital factor to be noticed that no bacteriological tests have been conducted by the opposite parties to confirm the disease of tuberculosis. We think the process of elimination is the most judicious method of diagnosis that ought to have been followed by a conscientious doctor to arrive at the precise diagnosis. Overlapping of symptoms is common feature in the realm of diseases. Unfortunately, the veteran doctor did not care to tread carefully and allowed himself to be carried away by the unfounded fear that the patient was badly affected by Tuberculosis and there was only short time left to save his life. Even if the doctor has deposed that his condition at the initial stage was deteriorating, there is no evidence before us to support the same. Initially, he met the doctor on 14-05-2007 as an out patient. He stayed in the hospital for a couple of days for the purpose of clinical investigation only. The professor could have availed this opportunity to conduct some confirmatory tests such as polymerized chain reaction Test or AFB (Acid Fast Bacilli) Test. PCR test was not available at that time in the 1^st opposite party hospital was the response of the 2^nd opposite party. In that case, they should have advised the patient to undergo this test outside. Incidentally, the patient has undergone Acid Fast Bacilli test out side on 28-09-2008, the result of which is recorded in Ext. A9 as negative. In the same way, blood culture test was not done at that stage. It is pertinent to note that the tests of Bone Marrow and mantoux were negative. Still the doctor immediately came to the conclusion that the complainant was suffering from tuberculosis. He derived support for this inference from some peripheral tests and clinical examinations. In this background, we are of the considered view that the doctor has taken hasty conclusion in diagnosis of the disease as Tuberculosis. This act would, definitely, in our view, constitute deficiency in service.

9. Point No. ii. :- The 2^nd limb of attack is constituted by the allegation of the complainant that the ATT was continued even when it came to light that the patient was under the grip of drug induced Hepatitis. The crux of the allegation is that there was no close monitoring of the patient, since the commencement of ATT. Obviously, tests ought to have been conducted to scrutinize the function of liver, since liver function is the globally acknowledged casualty of ATT. Ordinarily, any doctor would advise the patient to undergo liver function test. Ext. A3 discharge summary would show that the opposite parties have conducted liver function test for the first time on 14-07-02007 and it continued till 26-07-20087. It is stated in the version that on 13-07-02007, the patient was reviewed by Dr. Akash Thomas Oommen in the Medicine Outpatient Department and since there was on set of Drug induced Hepatitis, Anti-Tuberculosis Treatment was discontinued, paragraph 6 of the proof affidavit filed by the 2^nd opposite party would show that ATT was stopped only on 19-07-2007. When he was examined as DW1, he has stated that ATT was stopped on 13-07-2007. He has also disclosed that there is no record to show that ATT was stopped on 13-07-2007. He has lamented that a pathetic situation happened, tacitly admitting that ATT continued till 19-07-2007. Considering the fact that liver function test was conducted only on 14-07-2007, for the first time, the probability of stopping the ATT on 13-07-2007 is remote. In that view of the matter, we find that there is merit in the contention that there was want of close monitoring of the patients condition after the commencement of the treatment.

10. In a nutshell, the 2^nd opposite party has gone astray in his professional duty to the patient in the following counts :

(i) The 2^nd opposite party has commenced the Tuberculosis Treatment without thoroughly examining the patient clinically and pathologically. He did not give any attention to the fact that mantoux and bone marrow tests were negative. He paid undue attention to clinical observations and external symptoms of the patient. Eventhough the veteran professor was well aware of the confimative tests, he has not cared to follow any of them either in the hospital or outside. In simple terms he did not treat the patient with patience, expected of a doctor of his stature.

(ii) Even after starting the process of treatment, had he acted more judiciously by closely keeping an eye on his liver function, this catastrophe could have been averted, in spite of this knowledge that drug induced hepatitis is a probable side effect of the treatment.

11. Point No. iii. :- Undoubtedly, the complainant was compelled to undergo the ordeal due to the deficiency in service on the part of the 2^nd opposite party. The 1^st opposite party also is liable for the same in the capacity of employer. Huge sums have been incurred by the complainant in the 1^st opposite party hospital for his treatment on several counts and the subsequent treatment undergone in Lakeshore Hospital. Also incidental charges have presumably been expended by the complainant. It is not easy to quantify those expenses precisely. Therefore, we resort to a rough calculation and fix the same amount as Rs. 2.25 lakhs. Secondly, the mental agony, physical and tension undergone by the complainant in the course of the treatment are quite conceivable which eventually proved to be a disaster. He was even driven to the brink of death. Therefore, the opposite parties are also liable to pay compensation to the tune of Rs. lakh for the above reasons. The opposite parties shall also pay costs of the proceedings in the Forum. Whereas, the 3^rd opposite party has covered the professional misdeeds of the opposite parties by insurance policy, we saddle the 3^rd opposite party only with the responsibility to pay the aforesaid amounts to the complainant.

12. In short, the complaint is allowed as follows :-

1. The 3^rd opposite party is directed to pay Rs. 2.25 lakhs (Rupees Two lakhs and twenty five thousand only) along with interest @ 9% p.a. from the date of complaint till realisation.

2. The 3^rd opposite party shall also pay Rs. 1 lakh (Rupees One lakh only) towards compensation for mental agony and suffering undergone by the complainant.

3. The 1^st opposite party shall pay Rs. 10,000/- towards costs of the proceedings in the Forum.

The order shall be complied with, within a period of one month from the date of receipt of a copy of this order.

Pronounced in the open Forum on this the 26^th day of November 2012.

Sd/- Paul Gomez, Member. Sd/- A. Rajesh, President.

Sd/- C.K. Lekhamma, Member.

Forwarded/By Order,

Senior Superintendent.

A P P E N D I X

Complainant's Exhibits :-

Opposite party's Exhibits :-

=========