BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENAKUMARI. A : MEMBER

SMT. S.K.SREELA : MEMBER

O.P. No. 246/2004 Filed on 11.06.2004

Dated : 15.07.2010

Complainant:

P.K. Girishchandra Babu alias Girish, S/o Kunjan Panicker, residing at Puthuparambil, Thuruty P.O, Changanacherry Taluk, Changanacherry, Kottayam District.

(By adv. S.S. Kalkura)

Opposite parties:

1. State of Kerala represented by the Chief Secretary, Government of Kerala, Government Secretariat, Thiruvananthapuram.

    

2. Superintendent, Medical College Hospital, Trivandrum.

    

3. Dr. N. Viswanathan, Chief of Unit ENT-II, ENT Department, Medical College Hospital, Trivandrum.

    

4. Dr. Bipin, ENT Department, Medical College Hospital, Tvpm.

    

5. Pravinkumar T.H, Raju Bhavan, Edathara Mukku, Opp: Super Gas Godown Building, Anayara, Kadakampally Village, Thiruvananthapuram.

(By adv. J.R. Rajeev)

This O.P having been heard on 31.05.2010, the Forum on 15.07.2010 delivered the following:

ORDER

SRI. G. SIVAPRASAD: PRESIDENT

The facts leading to the filing of the complaint are that complainant, on 20.04.2003 evening, suddenly felt uneasiness, that on the next day morning he went over to Medical College Hospital, Kottayam and got admitted therein, that 5^th opposite party, who is a relative of the complainant, volunteered to take all responsibility connected with the treatment of the complainant, that the doctors of the Kottayam Medical College Hospital directed the complainant to undergo a biopsy test and complainant underwent the same and the result of the test was obtained on 28.04.2003 and was discharged from Medical College Hospital, Kottayam on the same day and referred him to the RCC for better treatment as biopsy test had revealed that the complainant was suffering from cancer of Larynges-T-3 Nomo stage, that the entire treatment records and discharge certificate were in the custody of the 5^th opposite party, who concealed the fact that the complainant was suffering from cancer, that complainant and his wife were made to believe that he was referred to Medical College Hospital and accordingly he was taken to ENT Department of Medical College Hospital, Trivandrum, that he was examined by 3^rd opposite party Dr. N. Viswanathan, that on the basis of medical records handed over by the 5^th opposite party to 3^rd opposite party, complainant was directed to undergo emergency tracheotomy, that he was also examined by 4^th opposite party Dr. Bipin and advised him to take X-ray of chest and scan of the head, that as per direction of the 5^th opposite party, complainant and his wife signed consent letter for undergoing endoscopy, that no endoscopy was carried out on 30.04.2003, that on the other hand complainant was subjected to total laryngoctomy by the 3^rd and 4^th opposite parties without his knowledge and consent, that complainant was discharged on 17.05.2003 from Medical College Hospital and subsequently referred to Regional Cancer Centre by the 3^rd opposite party where complainant underwent radiation. As a result of the laryngoctomy complainant lost the power of speech and voice totally. Opposite parties 3 & 4 acted contrary to standard procedure. On perusal of treatment records, Professor of Radiotherapy opined that the ideal first line of treatment was combination of chemotherapy and radiation treatment. There was a great chance of success of first line of treatment by which he could retain his voice and surgery was the last choice in treatment of cancer to larynges, that opposite parties 3 & 4 are guilty of breach of duty owed by a doctor to patient. The failure to exercise reasonable care resulted in financial and physical loss to the complainant. They acted in a highly incompetent manner thereby the complainant suffered loss of voice for which complainant claimed an amount of Rs. 10,00,000/- with interest thereon.

Opposite parties 1 to 4 did not turn up to contest the case. No version filed. Hence they set exparte.

5^th opposite party filed version contending that complainant is not a consumer that complaint is ill motivated, that complaint is bad for mis-joinder of parties, that 5^th opposite party never volunteered to take up the responsibility connected with the treatment of the complainant, but only agreed upon request to take him to the experts in the Medical College Hospital, Thiruvananthapuram. Complainant never entrusted any money with 5^th opposite party, that all the expenses for his treatment at Thiruvananthapuram including his personal needs were met by the 5^th opposite party and complainant's elder brother Sri. Bobby Panicker from Nagaland. 5^th opposite party never directed the complainant to sign any papers of endoscopy. 5^th opposite party denied the allegations averred in para 4 & 5 of the complaint. Hence 5^th opposite party prayed for dismissal of the complaint that it is bad for misjoinder of parties.

The points that arise for consideration are:-

1. Whether there is negligence and deficiency in service on the part of opposite parties?

2. Whether the complainant is entitled to compensation? If so, at what quantum?

3. Whether the complainant is entitled to cost? If so, at what quantum?

In support of the complaint, complainant has filed proof affidavit as PW1 and has marked Exts. P1 to P3. Dr. C.P. Mathew has been examined as PW2 and cross examined by 5^th opposite party. In rebuttal, 5^th opposite party has filed affidavit. Opposite parties 1 to 4 did not file version, affidavit or documents.

Points (i) to (iii):- It has been the case of the complainant that on 20.04.2003 evening complainant suddenly felt uneasiness, that on the next day morning he went over to Medical College Hospital, Kottayam and got admitted therein, and that 5^th opposite party, who is a relative of the complainant, volunteered to take all responsibility connected with the treatment of the complainant. It has also been the case of the complainant that the doctors of the Kottayam Medical College Hospital directed the complainant to undergo a biopsy test and complainant underwent the same and the result of the test was obtained on 28.04.2003 and was discharged from Medical College Hospital, Kottayam on the same day and referred him to the RCC for better treatment as biopsy had revealed that the complainant was suffering from cancer of Larynges-T-3 Nomo stage. It has also been the case of the complainant that the entire treatment records and discharge certificate were in the custody of the 5^th opposite party, that 5^th opposite party concealed the fact that the complainant was suffering from cancer that complainant and his wife were made to believe that complainant was referred to Medical College Hospital and accordingly complainant was taken to ENT Department of Medical College Hospital, Trivandrum, that he was examined by 3^rd opposite party Dr. N. Viswananthan, that on the basis of medical records handed over by the 5^th opposite party to 3^rd opposite party, complainant was directed to undergo emergency tracheotomy, that he was also examined by 4^th opposite party Dr. Bipin and advised him to take X-ray of chest and scan of the head, that as per direction of the 5^th opposite party, complainant and his wife signed consent letter for undergoing endoscopy. It has also been the case of the complainant that he was subjected to laryngoctomy by 3^rd and 4^th opposite parties instead of undergoing endoscopy and on 17.05.2003 complainant was discharged and referred him to RCC by 3^rd opposite party, where he underwent radiation. It has been the very case of the complainant that he lost his power of speech totally as he was subjected to laryngoctomy by 3^rd opposite party. Ext. P1 is the copy of the discharge card. A perusal of Ext. P1 reveals the diagnosis as Malignancy Larynx T3 No Mo and complainant was advised to attend RCC, Trivandrum for further management. Ext. P2 is the copy of the O.P Medical College Hospital, Thiruvananthapuram. As per Ext. P2 DOA 28.04.2003, Chief Doctor N. Viswanathan, complaints and findings are as under:-

Malignancy Larynx T3 No Mo

D/L Scopy 22.04.2003, proliferative growth involving the entire (L) vocal Cord extending to anterior part of (R) vocal cord (L) hemilarynx fixed. Both false cords oedematous. Biopsy

HPReport: Squamous cell carcioma keratinising verucous type.

Provisional diagnosis: Total Laryngoctomy/GA on 30.04.2003.

Specimen sent for HPE. Subglottic extension biopsy-send-separately.

As regards other details HPR: Squamous cell carcinoma.

Post operative period uneventful portex. Tube changed after 48 hours and jacksons tracheostrong tube introduced. Ryles tube feeding started after 48 hours. Sutures removed on 10^th post op day. Ryles tube removed on 13/5. pt. taking oral feed

17.05.2003 pt. Better at discharge.

Adv. Refd to RCC for further management.

Ext. P3 is the copy of the reference letter dated 17.05.2003 to RCC by 3^rd opposite party for further management. Ext. P4 is the copy of the cytology/histopathology report issued by Modern Diagnostic Centre. Ext. P5 is the copy of the histopathology report dated 17.05.2003 from Department of Pathology, Medical College, Thiruvananthapuram. As per Ext. P5

Diagnosis:

total Laryngoctomy

Well differentiated squamous cell

carcinoma lateral mucosal margins

free of tumour.

Tissue sent as subglotic extension.

Respiratory mucosa with dysplasia.

Ext. P6 is the copy of case summary record from RCC, Thiruvananthapuram. As per Ext. P6,

Final Diagnosis

Carcinoma Larynx T3NoMo

History

Known case of carcinoma Larynx post op T3NoMo who underwent post op XRT 50 GY/25 fr. Tolerated RT well. The Tracheostomy site was slowly barrowing. He has grade 11 mucositis

Advice

1. To see in ENT OP, MCH regarding tracheotomy closure.

.

.

7. Review after 2 months in op with ENT report on primary status.

Ext. P7 is the copy of advocate notice under Sec. 80 CPC to opposite parties. Ext. P8 is the copy of the reply to Ext. P7 sent by 3^rd opposite party. Ext. P9 is the copy of the acknowledgement cards and Ext. P10 is the original case sheet in respect of Mr. Girish Chandrababu, Medical College, Trivandrum. Ext. P11 is the opinion regarding the treatment given to complainant, a case of the larynx given by Dr. C.P. Mathew M.S.D.MR(Retd. Professor of Radiotherapy). Ext. P12 is the biochemistry report from Dr. Gopinath, Diagnostic Services. Ext. P13 is the document evidencing the cash payment to RCC. Dr. C.P. Mathew has been examined as PW2. In his examination in chief, on perusal of Ext. P1 discharge card, PW2 has deposed that the diagnosis recorded therein is cancer of the larynx. On being asked about T3NoMo, PW2 has deposed that tumour is in the third stage, Node is zero, Metastatis 'zero'. That means tumour is in the larynx and has not been spread out. According to PW2, as per Ext. P1 the patient has been advised to report to RCC, Trivandrum and advice is correct as per the diagnosis as seen in Ext. P1. On perusal of Ext P2, PW2 has deposed that diagnosis is the same, but treatment was laryngoctomy, that means removal of the larynx. In his examination in chief, PW2 said once the patient undergoes total laryngoctomy, its effect will be permanent loss of voice. On being asked about the ideal first line of treatment, PW2, on going through Ext. P10 case sheet, has said the ideal first line of treatment on the patient would have been a course of chemotherapy followed by radiotherapy, considering the age and nature of growth of cancerous cell. According to PW2, as per Ext. P1 and P4, the squamous cell carcinoma keratinising verruous cell is a very slow growing type of cancer which is very sensitive to radiotherapy. On being asked what would have been the result on the patient if the complainant instead of undergoing surgery, had been treated with radiotherapy, PW2 said 'almost 90% he could cure the disease and retain the voice. Is surgery the accepted mode of first line of treatment? (Q) PW2 said No. According to PW2, the surgery conducted on the complainant was totally unnecessary and is against general approved practice. To him, when a patient who was referred to RCC, if he is examined by an ENT which is a different institution and conducting surgery against the advice of being sent to conduct radiotherapy, it is not proper and very unethical. Ext. P10 is Medical College Hospital, Trivandrum, case record in respect of Mr. Girish Babu. On perusal of Ext. P10, PW2 said, it is mentioned therein as a referred case from Kottayam Medical College as Malignancy Larynx. According to PW2, it is not correct because the patient was referred to RCC, Tvpm. PW2 has deposed further that in page 12 of Ext. P10, complainant and his wife have given consent for examination only. On perusal of page 12 of Ext. P10 it is seen that complainant's wife has given consent for operation after understanding the possibility of consequential problems such as heart attack, chronic cough, allergy and loss of voice etc.

In his cross examination by 5^th opposite party, PW2 has deposed that he has given Ext. P11 opinion on the basis of information as well as records given by complainant's wife. Witness adds he has neither treated nor made check up the patient. As regards Ext. P11, PW2 said he has given opinion in writing and patient has brought it typed and he put signature therein after reading the same. When asked by 5^th opposite party where is written in Ext. P1 that the patient was referred to RCC, PW2 said it is written as advised to attend RCC, Tvm for further management. When asked by 5^th opposite party whether Radiotherapy or any other treatment to be done is mentioned in Ext. P1, PW2 said when a patient is referred to particular centre, normally the treatment to be done need not be mentioned rather would mention for further management. To PW2, when a patient is referred to RCC it is meant that radiotherapy is to be given, that is the main treatment in RCC.

It has been the very case of the complainant that the entire treatment records and discharge certificate were in the custody of the 5^th opposite party, the son of the eldest sister of the complainant, and he concealed the fact that the complainant was suffering from cancer and that the patient was referred to RCC and instead informed the complainant and his wife that he was referred to Medical College, Trivandrum. It is pertinent to point out that as per referral O.P card (page 1 of Ext. P1) complainant was admitted in Medical College, Trivandrum on 28.04.2003 wherein complaints and findings noted as Larynx T3NoMo. On page 3 of Ext. P10 it is seen written as “Referred case from Kottayam Medical College as Malignancy Larynx (T3NoMo). It is written in history of illness column …......21.04.2003 he developed severe respiratory difficulty for which he was admitted in Kottayam Medical College for which emergency tracheotomy was done D/L scopy done on 22.04.2003. It is further to be noted that opposite parties 3 & 4 conducted surgery after obtaining consent from the patient and his wife. The allegation of the complainant that 5^th opposite party concealed the fact that the complainant was referred to RCC and instead informed the complainant and his wife that he was referred to the Medical College Hospital, Trivandrum for further treatment has no basis in view of the reference recorded in Ext. P10. 5^th opposite party in this case is an unnecessary party as complainant has never availed any service from the 5^th opposite party. Further it is to be noted that what type of treatment to be given to a patient is determined by the doctor who examines the patient, not by a third party bistander. As such we find complainant has not availed any service from the 5^th opposite party and no deficiency in service can be attributed on the part of the 5^th opposite party.

In the case in hand complainant availed services from opposite parties 1 to 4 (Medical College Hospital,Trivandrum). It is settled position that where services are rendered at a government hospital on payment of charges and also free of charges, the free service also comes under 'service' as defined in Sec. 2 (1) of the Consumer Protection Act and the person availing of such services is 'consumer' within the meaning of the Act; entitled to file complaint thereunder following the decision of the Hon'ble Supreme Court in Indian Medical Association Vs. V.P Shantha 1995(3)CPR 412 (SC). Thus in the facts and circumstances mentioned above, the question for consideration is whether the opposite parties 1 to 4 were negligent in giving treatment to the complainant. Before proceeding further something should be said on “medical negligence”. Negligence is defined as a tort which is the breach of a legal duty to take care which results in damage, undesired by the opposite party to the complainant. It would comprise existence of a legal duty, breach of legal duty and damage caused by the breach.

Existence of legal duty:- Whenever a person approaches another trusting him to possess certain skill or special knowledge on a given problem and depends on him for service and dispensation of that skill, the second party is under an implied legal duty to exercise due deligence as is expected to act at least in such a manner as is expected in the ordinary course from his contemporaries. Failure on the part of such a person to do something which was incumbent upon him to do so, that which would be just and reasonable tantamount to negligence. Every time a patient visits a doctor for treatment of his ailment he does not enter into any written contract, but there is a contract by implication and any lack of carelessness or proper care make the erring doctor liable for breach of professional duty.

Breach of legal duty: There is certainly a breach of legal duty if the person exercising the skill does something which an ordinary prudent man would not have done or fails to do that which an ordinary prudent man would have done in a similar situation. The standards are not supposed to be very high degree or a very low degree, but just the relative kind that is expected from an ordinary prudent man in the ordinary course of treatment.

Damage caused by the breach:- The wrong injury occasioned by such a negligence is liable to be compensated in terms of money and the courts apply the well settled principles for determination of the exact liquidated amount. In a suit for damages on account of negligence the onus lies on the patient to prove that the doctor was negligent and the said negligence resulted in the injury which is complained to be compensated. Basically, medical negligence means such negligence resulting from the failure on the part of the doctor to act in accordance with medical standards or vogue which are being practiced by an ordinary and reasonably competent man practicing the same art. Once a doctor accepts a patient this principle became applicable. It may be stated here that to establish negligence on the part of the opposite parties 1 to 4, the claimant must show (a) what is the standard care; (b) on the facts of the case, that opposite party's conduct fell below that standard; (c) that the same had resulted to some injury to the patient.

In the case in hand complainant availed services from Government Medical College, Trivandrum. Expert opinion is the basis for determining negligence. PW2 a retired professor of Radiotherapy was examined in chief by the complainant. According to PW2, the diagnosis recorded in Ext. P1 is cancer of the larynx (T3NoMo), that means tumour is in the larynx and has not been spread out and patient has been advised to report to RCC, Trivandrum and advice is correct as per Ext. P1. Patient approached to Medical College, Trivandrum, got admitted therein. The diagnosis noted in Ext. P2 is also the same, but the treatment was laryngoctomy, that means removal of larynx. According to PW2, once patient undergoes total laryngoctomy its effect will be permanent loss of voice. To him, the ideal line of treatment on this patient would have been a course of chemotherapy followed by radiotherapy, considering the age and nature of growth of cell. If complainant, instead of undergoing surgery had been treated with radiotherapy almost 90% he could cure the disease and retain the voice. According to PW2, surgery is not the accepted mode of first line of treatment. It is totally unnecessary and is against general approved practice. To PW2, when a patient who was referred to RCC if he is examined by an ENT, which is a different institution and conducting surgery against the advice of being sent to conduct radiotherapy, it is improper and very unethical. In this context it is pertinent to point out that complainant was advised to attend RCC for further management, complainant instead of following the advice as per Ext. P1, went to ENT, Medical College, Trivandrum for treatment, and consented for surgery therein. Opposite parties 3 & 4 are not laymen. They did not exercise due deligence as is expected to act at least in such a manner as is exercised in the ordinary course from his contemporaries. They ought to have advised the complainant to attend RCC for further management, as is instructed as per Ext. P1, instead of being admitted him at ENT Department, Medical College, Tvpm and followed further line of treatment as observed by PW2. Complainant produced expert evidence in support of that defective line of treatment adopted by opposite parties 3 & 4. Opposite parties 3 & 4 did not turn up, instead of having received notice from this Forum, and contest the case, nor did opposite parties file version to resist the complaint. Opposite parties 1 to 4 did not lead any evidence to rebut the evidence led by the complainant. In view of the foregoing discussions and evidence available in support of the complaint, we are of the considered opinion that there is negligence on the part of opposite parties 3 & 4 in advising surgery instead of being sent the patient to RCC for further management, and in the wake of surgery complainant has lost his voice and power of speech. The wrong injury occasioned by such a negligence is liable to compensated in terms of money. Since opposite parties 3& 4 were working at Government Medical College, Trivandrum, represented by the 2^nd opposite party who is governed by 1^st opposite party, 1^st opposite party is liable to compensate the complainant.

In the result, complaint is allowed. 1^st opposite party shall pay the complainant a sum of Rs. 1,00,000/- towards compensation along with cost of Rs. 2,000/-. 5^th opposite party is exonerated from any liability to the complainant. 1^st opposite party shall pay the said amount within 2 months from the date of receipt of this order.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 15^th day of July 2010.

G. SIVAPRASAD,

President.

BEENAKUMARI. A : MEMBER

S.K. SREELA : MEMBER

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O.P. No. 246/2004

APPENDIX

I COMPLAINANT'S WITNESS :

PW1 - Girish Chandra Babu

PW2 - Dr. C.P. Mathew

II COMPLAINANT'S DOCUMENTS :

P1 - Copy of discharge card.

P2 - Copy of the OP Medical College Hospital, Tvpm.

P3 - Copy of the reference letter dated 17.05.2003 to RCC by 3^rd

opposite party.

P4 - Copy of Cytology/Histopathology report dated 23.04.2003.

P5 - Copy of Histopathology report dated 17.05.2003

P6 - Copy of summary card dated 02.07.2003.

P7 - Copy of notice of suit under Sec. 80 CPC to addressees 1 to 4.

P8 - Copy of reply to Ext. P7.

P9 - Copy of acknowledgement cards.

P10 - Original case sheet in respect of Mr. Girish Chandra Babu,

Medical College, Tvpm.

P11 - Opinion regarding the treatment given to complainant.

P12 - Copy of medical report.

P13 - Copy of receipt dated 20.05.2003.

III OPPOSITE PARTY'S WITNESS :

DW1 - Praveen Kumar

IV OPPOSITE PARTY'S DOCUMENTS :

NIL

PRESIDENT

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