BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SIRSA.
Consumer Complaint no. 69 of 2016.
Date of Institution : 2.3.2016
Date of Decision : 10.4.2017.
Bimla Devi wife of Sh. Om Parkash, resident of village Rupana Khurd, Tehsil and District Sirsa.
……Complainant.
Versus.
1. Dr. Shailesh Tomer, C/o Tomar Nursing Home Opposite Aggarsain Park, A-5, Nandan Vatika, Sirsa, Tehsil and District Sirsa.
2. Dr. M.M. Talwar, M.D., C/o Talwar Nursing Home, Near Railway Bridge, Hisar Road, Sirsa, Tehsil and District Sirsa.
3. Dr. Sanjay Garg C/o Lal Garhia Hospital Opposite Suraj Theatre, Dabwali Road, Sirsa, Tehsil and District Sirsa.
4. United India Insurance Company, Ltd. Sirsa opposite City Thana Sirsa (policy No.111985/46/14/35/00000030 valid w.e.f. 09.10.2014 to 8.10.2015).
...…Opposite parties.
Complaint under Section 12 of the Consumer Protection Act,1986.
Before: SH.S.B.LOHIA………………. ……PRESIDENT.
SMT. RAJNI GOYAT ……… MEMBER.
SH. MOHINDER PAUL RATHI……. MEMBER.
Present: Sh. V.P. Arya, Advocate for the complainant.
Sh. Jagwant Singh, Advocate for opposite party no.1.
Sh. J.D. Garg, Advocate for the opposite party no.2.
Sh. Sanjay Goyal, Advocate for opposite party no.3.
Sh. A.S. Kalra, Advocate for opposite party no.4.
ORDER
The case of the complainant in brief is that opposite parties No.1 to 3 are doctors by profession and are running their private hospitals. In the month of October, 2014, the complainant was suffering from cough and blood clots were also coming out of cough and on account of the same, he was felling difficulty even in respiration and inconvenience was increasing day by day. Therefore, the complainant contacted the op no.1 in the month of January, 2015. The op no.1 inquired about the symptoms of ailment from complainant and as he failed to ascertain the same, hence he advised some tests. The op no.1 sent her to City Diagnostic Centre, Sirsa on 21.1.2015 for the tests. The test was accordingly conducted by Dr. Sanjiv Kaushal M.D. and he submitted his report. After going through the report, the op no.1 further sent her to Accu Lab, Sirsa for A.F.B. examination on 21.1.2015. Some medicines were also advised by op no.1 for prevention of ailment. The AFB examination was conducted by Dr. Sushma Jindal of Accu. Lab. Ultimately, the op nop.1 declared the complainant to be suffering from the disease of Asthma and told that it is not a matter of worry because the disease is just at initial stage. He further told that he is almost a specialist of Asthma and ailment shall be uprooted by him and on his assurances she got treatment from op no.1 and was admitted in his hospital. The complainant remained under treatment of op no.1 for a period of about two months and was kept under ICU as well. During the period of two months, the complainant thoroughly followed the instructions of op no.1 and kept control over the advised diet but inspect of it there was no improvement in the health of complainant rather the same was kept on worsening day by day and disease became more serious and critical. It is further averred that ultimately she was discharged by op no.1 in the first week of March, 2015. The complainant spent more than Rs.one lac under treatment of op no.1. Then complainant contacted op no.2 and told about her admission in the hospital of op no.1 and also showed all test reports to him. The op no.2 after going through test reports admitted her in his hospital on 13.3.2015 for treatment and showed his un-satisfaction towards test reports and advised re-tests. The complainant got herself examined from Prasnna Diagnostic Laboratory on 13.3.2015, 15.3.2015 and 16.3.2015 and also got examined from Dr. Lal’s Path Lab. The complainant remained under treatment of op no.2 and followed each and every instruction made by him but instead of improvement, her ailment became more serious and critical day by day and finding no other way got herself discharged from the hospital of op no.2. She spent a sum of Rs.one lac on her treatment in the hospital of op no.2. Thereafter, she was admitted in hospital of op no.3 and on examination by op no.3, same ailment was found and the similar treatment was also adopted by op no.3. The complainant remained there upto the month of April, 2015 but there was no improvement at all in her health. In this manner, the complainant since January, 2015 to April 2015 remainder under treatment of ops No.1 to 3 for sufficient time and spent huge amounts of Rs.3½ lacs on tests and medicines etc. but they failed to uproot the ailment of complainant. It is further averred that thereafter she visited Jaipur and contacted Dr. S. Banerjee, Professor of Medicine SMS Medical College and Hospital, Jaipur and the said doctor got conducted some tests and on examining the reports, it was told to her that she is suffering from disease of tuberculosis. The complainant was astonished to hear this because according to ops No.1 to 3 she was suffering from disease of asthma and they were treating her holding to be the patient of asthma. The complainant remainder under treatment of Dr. Banerjee and within a short period much improvement was found in her health. She was even discharged from the hospital soon and show is now quite okay. It is further averred that due to luck of complainant she visited Jaipur for treatment otherwise she would have lost her life. The conduct of the ops clearly shows their negligence in their profession. Hence this complaint for direction to the ops to refund a sum of Rs.2,00,000/- charged by them for treatment, to pay a sum of Rs.7,50,000/- as compensation on account of harassment and mental pain etc. and to pay a sum of Rs.1,00,000/- each as penalty on account of professional misconduct and also to pay a sum of Rs.22000/- as litigation expenses.
2. On notice, opposite party no.1 appeared and filed written statement taking certain preliminary objections regarding locus standi, cause of action and non joinder of necessary parties etc. It is submitted that on 19.2.2015 at the time of first visit of complainant, her condition was not stable but was very serious and she was suffering from cough, dyspnea, breathing problem and acute shortage of oxygen in her body. Oxygen saturation was 74% on first day and 70% on 27.2.2015 and due to this reason she was put on oxygen immediately. She left the hospital deliberately without informing and without paying the balance amount. She was given best treatment as per reports with due care and caution, skill and knowledge. She was examined by the doctor clinically, previous history was taken and she disclosed that she is taking medicine Betnesol from last ten years without any prescription by any doctor and she further disclosed that she is using Aero Cort inhaler three times in a day because of breathing problem. She disclosed that she is suffering from cough and dyspnea from last two years but at present she is suffering from last seven days and facing vary hardship in breathing. She was advised to stop the medicines and further advised tests Hb, TLC, DLC, ESR, chest x-ray, random sugar and CT chest. On examination, it was found that oxygen saturation in her body is 74% i.e. acute shortage of oxygen on the basis of TLC on higher side and medicines were prescribed. It is further submitted that in view of condition of patient, the attendant as well as patient were advised for admission in hospital for the purpose of clinically monitoring during treatment and further to obtain the early morning sputum for test as per recommendation of WHO but the patient was not cooperating the doctor to find the real cause of disease. The patient again came in hospital on 20.2.2015 for sputum test and she was admitted in hospital. The sputum sample was taken and sputum test was conducted by Acculab and found “no acid fast bacilli seen.”. The sputum test not found smear positive which means T.B. symptoms were not found. On 22.2.2015 in the early morning the sample of sputum was taken with a purpose to get the accurate report of maximum bacteria and the report showed “no acid fast bacilli seen.”. The op no.1 disclosed before the attendant as well as the patient that in some cases if the report of sputum is found smear-negative even then the patient may be a T.B. patient, so it is necessary to start T.B. medicines on trial basis but the advise of op doctor was not followed by the patient and despite repeated advice the patient pressurized the doctor to discharge her. So she was discharged on 22.2.2015 and then she turned up for follow up treatment. The patient all of sudden visited the hospital of op no.1 on 27.2.2015 and it was her last visit. On the request of patient and attendant, the op no.1 again prescribed medicines Drryphilin, whysolone, oddi, tablet dytorand and also advised cembimistrespules TDS for ten days to give relief to the patient. The patient did not turn up after 27.2.2015 nor continued the prescribed medicines and also not turned up for third time sputum test. The antibiotics were advised because infection was found in the blood report. The CT-chest of the patient was also obtained from Dr. Sanjiv Kaushal M.D. (Radio Diagnosis). In the CT-chest report, the doctor suspected “mycobacterial pneumonitis” (a lung disease caused by the inhalation of small dust particles) and due to this reason the treating doctor advised the patient to take medicines of T.B. on trial basis but the patient bluntly refused to follow the advise of the doctor. During the admission in the hospital, the patient was kept under observations, constant watch with proper attention as per the recommendation of WHO and as per protocol to find out the tuberculosis, the sputum test is necessary at least three times. The op doctor time and again advised her proper treatment under constant supervision and for this purpose the admission of the patient in the hospital is necessary. The test report indicated towards chronic disease because the TLC counts of blood was showing infection in the body. The patient whose initial sputum smears were negative, the sputum culture in such like cases is necessary but the patient not followed the advise of the doctor. She was discharged from the hospital on 22.2.2015 against the advise of doctor but the patient visited the hospital of answering op on 27.2.2015 for short period and doctor advised the medicines. After 27.2.2015, the patient never visited the hospital of answering op at any point of time. The treating doctor did not start the treatment of T.B. in routine because of adverse effects of T.B. drugs such as anorexia, nausea, abdominal pain, joint pain, burning sensation in the feet, red urine, itching of skin etc. It is further submitted that on 15.3.2015, the patient was got admitted in Talwar Nursing Home, Sirsa and the treating physician advised the same and similar tests and also prescribed the same medicines as prescribed by answering doctor. He also advised sputum test reports dated 16.3.2015, 17.3.2015, and 19.3.2015 and reports show “no A.F.B. seen”. The TLC counts were found in report are 17200 per cmm on 15.3.2015 and in this situation the doctor at Talwar Nursing Home, Sirsa was not in position to start the T.B. treatment. On 19.3.2015, the patient had taken admission in Lal Garhia Hospital and she was treated by Dr. Sanjay Garg M.D. The patient remained there up to 25.3.2015. On 25.3.2015 x-ray of chest was conducted by Dr. A.R. Godara, M.D. (Radiology) and he suspected ineffective etiology i.e. infection was found in the blood of the patient, the TLC counts were 26100, 21700, 20500, 17200, 13700 per cmm on 19.3.2015, 20.3.2015, 21.3.2015, 22.3.2015 and on 23.3.2015 respectively as per Verma Pathology Lab. Dr. Sanjay Garg advised the same and similar treatment to the patient as advised and given by answering op. There is no iota of evidence to presume in this situation that the patient was suffering from T.B. There is no nexus of treatment given by the doctor and T.B. disease. The answering op on the first day of her visit to the hospital advised the necessary and required tests for proper diagnosis, the test reports were given by the M.D. (Path.) and M.D. (Radio.), the well qualified doctors and also having rich experience. The M.D. (Physician) started the treatment of the patient on the basis of test reports given by the pathology/ radiology expert doctors and on the basis of his knowledge, skill, experience with full care and caution. It is further submitted that although T.B most commonly affects the lungs, any organ or any tissue can be involved, no conclusive proof of TB disease is produced on file. Dr. S. Banerjee in the patient history mentioned cough, dyspnea from last seven days and he advised the tests, CBC, Urine complete, Urea, creatinine, ECG, two Decho (ultrasound of heart), USG abdomen, T3, T4, TSH, CT thorax and he without awaiting the result of the required test started the treatment of TB. The treatment/ medicines given by Dr. Banerjee is found in the OPD slip issued by him. As per record, the patient consulted him on 2.5.2015, 30.5.2015, 1.7.2015, 31.7.2015, 28.8.2015, 29.9.2015, 29.10.2015, 3.12.2015 and on 7.1.2016. In this way, the patient received the treatment from Dr. S. Banerjee for about more than ten months. In the CT scan of thorax, Kiran Diagnostic Research Center of SMS Hospital, Jaipur mentioned “allover findings are consistent with infective etiology-? Tuberculosis.” Even after eleven months of treatment there is infection in blood of patient as per report of Jaipur Lab. dated 16.2.2016. It shows that the patient was still not cured. Dr. S. Banerjee may have started the TB treatment after going through the test reports of the answering op and other hospitals of Sirsa. It is further submitted that continuous four sputum reports was showing “no Acid Fast Bacilli seen” meaning thereby smear-negative. Due to this reason, Dr. S. Banerjee had prescribed the TB medicines because there was no effect of antibiotic medicines given by the doctors at Sirsa. The complainant visited the hospital of op on 19.2.2015 instead of in the month of January as alleged by her. Remaining contents of the complaint have also been denied and prayer for dismissal of complaint has been made.
3. Opposite party no.2 appeared and filed written statement taking certain preliminary objections. It is submitted that the complainant approached to the answering op for her treatment but she had not shown her earlier treatment conducted by any doctor. At that time she was in serious condition and seeing her seriousness, she was admitted in ICU immediately and that time her pulse rate was 140 per minute, BP was 96/70 mm of Hg and she was having temperature of 101 F and oxygen saturation of 84% and was having difficulty in breathing even at rest. She was immediately put to oxygen and her blood test was conducted and her TLC was 28000 per cubic millimeter (CMM) and polymorph were 90% (indicating severe infection). Her blood urea was 59 MG per ML. To rule out tuberculosis sputum (tests of TB) was done for AFB thrice on 15.3.2015, 16.3.2015 and 19.3.2015 and it was negative every time. During her stay with the answering op, her condition improved significantly and she was shifted to General Ward from the ICU and when there was major improvement then she deliberately left the hospital without informing and settling the bill. She was never discharged from the hospital. The assertions made by complainant that she spent Rs.one lac on her treatment is wrong and incorrect. During her admission on 13.3.2015 her relatives had deposited only Rs.8000/- with the answering op. The complainant was treated by op no.2 with due care and responsibility. Her tests were got conducted from Parsanna Laboratory and Lal Path Lab, Delhi and every time the sputum was negative for AFB. As per the guidelines of treatment of tuberculosis by WHO it is submitted that at page 23 that “A definite case of Tuberculosis: A patient with positive culture for the Mycobacterium tuberculosis complex (in countries where culture is not routinely available, a patient with two sputum smears positive for acid-fast bacilli (AFB) is also considered a definite case) and others are suspect. Any person given treatment for tuberculosis should be recorded as a case. Incomplete “Trial” tuberculosis treatment should not be given method of diagnosis. It is further submitted that the sputum test of the complainant was got conducted by the answering op thrice instead of twice as mentioned by the WHO in its book Treatment of Tuberculosis but every time the reports of tests found negative. So the treatment of tuberculosis was not justified to be started. Besides pleading on similar lines as that of op no.1, the op no.2 has also pleaded that comparing the CT scan reports of patient dated 21.1.2015 at CT Diagnostic Centre, Sirsa and Kiran Diagnostic Centre dated 10.2.2016 that findings have not changed much and if changed to certain extent they have deterioration instead of improvement. Dr. Banerjee never advised for sputum examination for AFB during any of her visits while diagnosing and treating the patient. He treated the patient on presumptive (therapeutic trial) basis when patient had completely settled by doctors treating her at Sirsa. It is further submitted that it is pertinent to mention here that the anti tuberculosis drugs have lot of complications and side effects which can effect the liver, kidneys and other organs and sometimes can be fatal. So, for starting the treatment of tuberculosis a definite evidence for disease is must. The answering op is a qualified doctor and specialized in treatment of TB and chest diseases. He is treating the patients of TB specially since 1976. Remaining contents of complaint have also been denied.
4. Opposite party no.3 filed written statement and took certain preliminary objections. On merits, it is submitted that complainant was brought to his hospital on 19.3.2015 and after necessary investigation, she was advised for some tests including test of tuberculosis. As per test report dated 19.3.2015, her T.B was found negative and as per test reports, the answering op has given better treatment to complainant. The condition of patient was very serious when she visited to the hospital of answering op on 19.3.2015. She was immediately admitted in ICU and was given best treatment and after improvement she was shifted to the room on 20.3.2015. As per her test report, her TLC was 26000, fever/pulse 99/90, saturation was 90 and she was unable to breathe at that time. After giving her best treatment, she was recovered fully and was discharged on 25.3.2015 and x-ray chest was also conducted. Her test for tuberculosis sputum test was also done on 20.3.2015 during treatment and the report was found negative at that time. So after discharge, the complainant frequently visited the hospital of answering op for OPD and she last visited his hospital on 8.4.2015 and she was complete normal. The complainant has not mentioned the fact that on which date she suffered T.B. disease. In Jaipur as alleged by complainant herself she visited the hospital premises in working condition and only OPD was done. So there was no such situation that her condition was critical at any stage. Remaining contents of the complaint have also been denied.
5. Opposite party no.4 i.e. United India Insurance Company Ltd. insurer of opposite party no.2 on being impleaded appeared and filed written statement and pleaded that subject matter needs elaborate enquiry expert opinion. The written statement filed on behalf of op no.2 has also been adopted and contents of the complaint have been denied.
6. The complainant has produced her affidavit Ex.CW1/1, affidavit of her husband Om Parkash Ex.CW/2 and documents Ex.C1 to Ex.C34. OP no.2 produced his affidavit Ex.R1 and documents Ex.R2 to Ex.R9. OP no.1 produced his affidavit Ex.R10 and copies of treatment record Ex.R11 to Ex.R22. OP no.3 produced his affidavit Ex.RW23 and copy of treatment record Ex.R24. Op no.4 produced affidavit Ex.R25 and copy of insurance policy Ex.R26.
7. We have heard learned counsel for the parties and have perused the case file carefully.
8. From the material available on file, it is evident that complainant for the first time visited the hospital of opposite party no.1 on 19.2.2015 with complaint of cough and dyspnea and breathing problem as is evident from copy of prescription slip dated 19.2.2015 Ex.C1 and opposite party no.1 got conducted some tests including test of sputum. The test reports are placed on file by the complainant as Ex.C2, Ex.C3 and Ex.C4. The complainant remained under treatment of opposite party no.1 for a very short period and during the period of her stay with op no.1, the op no.1 got conducted various tests including sputum test for two times to know the actual disease. In the report of Acculab dated 21.2.2015 regarding test of sputum for A.F.B. examination, the result is mentioned as “No Acid Fast Bacilli Seen.” Then opposite party no.1 also got conducted same test of complainant on 22.2.2015 and in the report Ex.C4, it is mentioned that “No Acid Fast Bacilli Seen”. Similarly, when the complainant remained under the treatment of opposite party no.2 from 13.3.2015 to 19.3.2015, the op no.2 doctor also got conducted various tests of the complainant including sputum test for A.F.B. and in all the reports of sputum tests dated 13.3.2015 Ex.C5, dated 15.3.2015 Ex.C7, dated 17.3.2015 Ex.C8 and dated 19.3.2015 Ex.C11, it is mentioned that “No A.F.B seen”. Thereafter, the complainant remained under treatment of opposite party no.3 from 19.3.2015 to 25.3.2015 and during that period also the op no.3 doctor got conducted her various tests including test of tuberculosis to know the actual disease and in the reports Ex.C14 to Ex.C24 no disease of tuberculosis was found. All the opposite parties no.1 to 3 are well qualified doctors and they treated the complainant as per laboratory test reports and keeping in view the condition of the complainant as she was suffering from acute problem of breathing etc. at that time as per treatment detailed in their written version. There is nothing on file to presume that at the time of treatments given by all the ops doctors, the complainant was suffering from tuberculosis disease and they wrongly treated her for the disease of asthma. There is no declaration of any of the ops doctors that complainant was suffering from disease of asthma. Even in the treatment record of Dr. S. Banerjee of SMS Medical College & Hospital, Jaipur, it is mentioned that complainant complained of cough and dyspnea from last seven days i.e. from 22.4.2015 and the said doctor advised various tests of the complainant but no such report confirming the disease of tuberculosis by any of the laboratory has been placed on file. Dr. S. Banerjee has also not confirmed that complainant was suffering from disease of tuberculosis and the opposite parties no.1 to 3 have treated the complainant wrongly. Dr. S. Banerjee also started the treatment of complainant without awaiting the latest reports of tests keeping in view all the previous reports got conducted by the ops no.1 to 3. But from the material available on file, it is not proved that opposite parties No.1 to 3 treated the complainant wrongly and they caused any medical negligence rather it is proved on record that they treated the complainant as per test reports and as per the condition of the complainant being well qualified doctors. There is no other expert opinion on file to prove that that health of complainant became critical due to wrong treatment given by ops doctors and wrong diagnosis. It is also not proved on record that ops doctors charged any excess amount from the complainant.
9. Thus, as a sequel to our above discussion, we are of the considered opinion that complainant has failed to prove her case. Hence, we find no merit in the present complaint and same is hereby dismissed but with no order as to costs. A copy of this order be supplied to the parties free of costs. File be consigned to the record room after due compliance.
Announced in open Forum. President,
Dated: 10.4.2017. Member Member. District Consumer Disputes
Redressal Forum, Sirsa.
