BEFORE THE DISTRICT FORUM:KURNOOL
Present: Sri. K.V.H.Prasad B.A.LL.B., President
And
Smt. C.Preethi, M.A.LL.B., Lady Member
Thursday the 27th day of September, 2007
C.C.61/06
1.V. Jacintha, W/o. Late M. Venganna,
2. M. Venganna, S/o. M.Venkataiah (Died)
Residents of H.No. 79-6A, Krishna Nagar, Kurnool. … Complainants
Versus
1. Dr. B. Ramachandra Reddy, S/o. B. Lakshmi Reddy,
R/o. H.No.43-67A, N.R.Peta, Kurnool.
2. M/s. United Insurance Company Limited, By its Divisional Manager,
Kurnool. … Opposite Parties
This complaint coming on this day for orders in the presence of Sri.N.Ramachandra, Advocate, Kurnool, for complainant, and Sri.M.L.Sreeniva Reddy, Advocate, Kurnool opposite party 1 and Sri.M.S.CMK.Ranjani, Advocate, Kurnool opposite party No.2 and upon perusing the material papers on record, the Forum made the following:-
ORDER
(As per Sri. K.V.H.Prasad, President)
C.C.No.61/2006
1. This complaint is filed U/S 12 of C.P.Act seeking direction on the Opposite Parties to pay to the complainants Rs.20 lakhs towards compensation, incurred medical expenditure, mental agony and cost alleging the deficiency in medical services from the opposite party in diagnosing and giving treatment to M. Prasad – the deceased son of the complainants, on his approach with complaint of abdominal pain on 29.11.2004 and from then giving treatment for T.B for 5 months, while the Complaint of the said patient was diagnosed on 22.5.2005 by Asian Institute of Gastroenterology, Hyderabad as “Peritoneal Carcinomatoses” i.e. cancer and at a stage of hopelessness for any cure and there by lead to the demise of said patient on 13.1.2006 and the Opposite Party No.1 if was vigilant in making proper diagnosis and in rendering proper treatment the situation to deceased would have been otherwise in the aspect of incurred expenditure even .
2. The second Opposite Party is the insurer of the opposite party No.1 for his professional indeminity vide policy No.05110046 / 05 / 34 / 00000097 covering period from 21.2.2006 to 20.2.2007 covering the liability of the Opposite Party No.1 upto Rs.5 lakhs came on record vide order in I.A.No. 246 / 06 dated 4.9.2006.
3. In pursuance of the receipt of the notice of this forum as to this case of the complainants, the opposite parties contested the case filling their written versions. While the written version of the Opposite Party No.1 denies any of its liability to the complainants claim alleging any negligence on its part in diagnosing and rendering proper treatment as taken maximum reasonable care as physician and the colonoscopy test prescribed was avoided by the patient himself in spite of its advise by the Opposite Party No.1 and not giving suitable reply to the notice of the Complainant was due to non furnishment of material required sought in reply notice and the claim without any substantial proof for it is excessive and exorbitant and the diagnosis for T.B was arrived seeing the earlier medicines used by the deceased and on clinical notings of symptoms complained as to abdomen pain, loss of apetite, and cough, the written version of the Opposite Party No.2 also denying of its liability in too fold one leveled against the Opposite Party no.1 alleging the violation of terms and conditions of policy by the Opposite Party No.1 in not causing notice of the matters affording an opportunity to Opposite Party No.2 to enquire into the matters, and another leveled against Complainant alleging none of its liability when the Opposite Party No.1 alleges any of his deficiency and negligency in diagnosis and treatment rendered to the patient .
4. In substantiation of the contentions while the Complainants side has taken reliance on documentary record in Ex.A1 to A.59 and Ex.C1 & C2 besides to the evidence of P.W 1 and 2 and sworn affidavit of the Complainant in reiteration of its case, the opposite party side has taken reliance on documentary record in Ex.B1 besides to the sworn affidavits of opposite parties 1 and 2 and that of a third party by name P. Nagaraju.
5. Hence the point for consideration is whether any deficiencies or negligencies of the opposite party No.1 in diagnosing and rendering treatment to M. Prasad – the deceased son of Complainants – is made out attracting the liability of the opposite parties to the Complainant’s claim.
6. The Complainants contention is that while the deceased approached the Opposite Party No.1 for treatment with complaint of pain in left side abdomen, loss of apetite and cough the Opposite Party No.1 without putting the said patient to any necessary diagnostic tests, on mere clinical examination and some tests only diagnosed the complaint of the patient as T.B and rendered treatment accordingly and it did not bear desired result and ultimately the said patient succumbed to cancer.
7. The Ex.A 21 dated 30.11.2004 indicates the deceased patient was brought to Opposite Party No.1 by a person name P. Nagaraju – a friend of Opposite Party No.1 son with complaint of pain of left side abdomen since two days and history of loss of epitite, cough and pain since one month. The said patient was advised to under go several tests such as x-ray of test, HIV screening, H.B, ESR , perpherial smear, blood sugar, blood urea, creatinine and urine examination apart from upper gastro endoscopy (UGE) and colonoscopy test. Except colonoscopy test report all other test reports were fetched by the said patient for being considered by the Opposite Party No.1. The purport of the prescribing colonoscopy test was to exclude the cancer of colon / intussuseption. The sworn affidavit of P. Nagaraju, the person – who accompanied the said patient, says that the said patient refused to under go said colonoscopy test. The said version of said P. Nagaraju remained un rebutted as any interrogatories were caused on him for his replies or to test his veracity. If the witness is not cross examined, as per the decision of Honourable National Commission rendered in “The General Manager S.C.R and others Vs Mullapudi Phani Rajesh “ reported in 2007 (1) CPR Pg 283 (NC) and the decision of Honourable A.P.Highcourt in “Peddavalndla Narayanamma Vs Peddasani Venkata Reddy and others” reported in 2007 (4) ALT 260, the evidence of such witness can not be discarded and finding of fact contrary to that evidence ignoring evidence in totality would be erroneous.
8. From the said un rebutted sworn affidavit of P. Nagaraju it remains clear that the said patient refused to under go the colonoscopy test prescribed by the opposite Party No.1. When a patient refuses to under go the test prescribed or does not adhere to the treatment prescribed the said conduct of the patient amounts to careless ness on the part of the patient and there by any medical negligence of the doctor could be inferred as per the decision of Honourable National Commission rendered in Munna Devi Vs Dr.R.P.Tondon reported in IV ( 2006) CPJ Pg 259 (NC).
9. The decision of Honourable A.P.State Consumers Disputes Redressal Commission rendered in Devi Rani Vs N.Prakash Rao and others reported in 2002 (3) ALT Pg 38 (CPA) holding medical negligence of doctor, who has prescribed some tablets to a patient on approach with complaint of mild fever, which ultimately led to the loss of eye sight due to wrong prescription of tablets – does not appear to be any of its relevant application to the facts of the complainants case for want of any such cogent material on record to the effect that the treatment given by the Opposite Party No.1 to the deceased patient for T.B ensured cancer which promoted the death. For the same reason the other decision of Honourable A.P.State Commission rendered in L.Aruna Devi and others Vs Deccan Hospitals Private Limited , Hyderabad and other reported in 2002 (1) ALT Pg 34 (CPA) .
10. The complainants alleged that as the patient was suffering from intus susception the Opposite Party No.1 ought to have referred the patient to a surgeon for an immediate surgery to get rid of said complaint. The first page of Radiologist report in Ex.A 29 observes “ thickned bowel wall in left iliac fossa with minimal free fluid between bowel loops “ with a question mark after the wording “possibility of intus susception” what remains clear is that the said Radiologist merely suspected the intus susception but not confirm it to the patient. In case of intus susception due to obstruction the patient shall suffer with vomitings and distension of abdomen with visiable movements of the bowel and absolute constipation. When there is any such complaint from the patient or any such observation to the patient on clinical examination, the Opposite Party No.1 is remaining perfectly justified in not referring the said patient to any surgeon for any immediate surgery as contended by the complainants.
11. Another grievance of the complainants side is that the Opposite Party No.1 has not advised the patient either for Mantoux Test, Heaf Test or Tine Test for holding prevalence of T.B to said patient. The said grievance came for the first time in written arguments of complainants side as any such grievance was taken earlier either in its legal notice to opposite party No.1 or in the sworn affidavit or in any interrogatories to the opposite party . As per the Park Text book of preventive and social medicine 15th edition Page numbers 141 and 142 and 18th edition at page No.150 the Montoux Test is favoured when a more precise measurement of tuberclosis sensitivity is required. Hence in Mantoux Test a positive reaction is indicates that the person is infected with tuberclosis and it does not prove that the person is suffering with said tuberclosis. If a child below 2 years is found to be tuberclosis positive it is an indirect evidence of an active tuberclosis lesion in the body. Therefore Montux Test is not a diagnostic test for T.B in adults indicating any active tuberclosis decease and so the opposite party No.1 is remaining justifying in not advising the said test to the patient as it serves any useful purpose.
12. The Ex.A1 - discharge card dated 10.5.2005 at page number 3 to 6 does not take any mention of the earlier prescriptions pertaining said patient which implies the necessity for prescribing the test of X-ray of test, HIV screening HB , ESR , peripheriol smear , blood sugar blood urea , creatinime and urine examination etc., . In case of T.B abdomen / cryptic miliary or disseminated T.B a few symptoms of T.B could only be found and not those symptoms as may be in a case of advanced lung T.B and the cryptic form of T.B some times diagnosed only at the post mortern and said is almost fatal without adequate treatment as per Crafton Douglas book 5th edition pages 511 , 512 , 515, 516 , 536 , and 537. And considering the young age of the patient and in the absence of any colonoscopy report the T.B deceased is more probable then cancer / intus susception and diagnosis of Gastro Intestinal Track T.B requires a high index of suspicion and therapeutic trial for anti tuberclosis is justified instead of allowing the patient to deteriorate and die, the Opposite Party No.1 is remaining justified in treating the patient of T.B under said bonafide said circumstances especially when the Ex.A 22 to 26 and 28 envisages the progressive result of said treatment as “General Well being + , pain abdomen less , appetite good , general improvement + .
13. The opposite party No.1 referring the said patient on complaint of abdmonial bloating to Asian Institute of Gastroenterology vide his letter dated 4.3.2005 in Ex.C.1 exhibits the reasonable care and attention of the Opposite Party No.1 to the welfare of his patient. While such is so with the Opposite Party No.1, the patient not following the said advise of the Opposite Party No.1 as directed in Ex.C1 letter promptly envisages more the reluctancy of the patient in getting proper treatment rather than any deficiency of service or medical negligence of the Opposite Party No.1 towards the patient .
14. It is contended by the complainants side that as the patient did not improve under the treatment render by the opposite party No.1 the patient was advised to Asian Institute of Gastroenterology, Hyderabad. There appears any material in evidence of P.w.1 and 2, doctors who treated the patient at Hyderabad - to say that the patient was still suffering with T.B but on the other hand the patient was diagnosed with peritonial carcinoma decease. Hence there appears any merit in the contentions of the complainants side that the patient did not responded to the treatment given by the Opposite Party No.1 for T.B. Nor any material is placed to say that the said treatment given by the opposite party No.1 for T.B has resulted in peritonial carcinoma decease to the patient. As evidence of P.W.1 in reference to medical reports and prescriptions in Ex.A 21 to A.29 - that the patient might have suffered tuberclosis and there by not creating any doubt or fault in the diagnosis and treatment for T.B rendered by the opposite party No.1 to the patient, the opposite party No.1 can not be found as given any wrong diagnosis and treatment to the patient and resulted in demise of said patient nearly because the said patient died with other complication which was having any nexus to the treatment render by the Opposite Party No.1.
15 A mere error in diagnosis of decease or the patient not responding to the treatment and simple lack of care, error of judgement or any accident is not proof of negligence on the part of the doctor and there by can not themselves be grounds to hold doctor negligent in rendering service as the burden of proof negligence on the part of the doctor lies heavily on the patient or complainant as per the decision of Honourable Uttaranchal State Consumers Disputes Redressal Commission, Tamilnadu State Consumers Disputes Redressal Commission and National Consumers Disputes Redressal Commission cases reported in 2003 (3) CPR page 119, 2001 (1) CPR page 268 and 2007 (1) CPR page 110 respectively.
16. The decisions reported in 2002 (3) CPR page 163 of the Honourable State Commission of Jharkhand holds that the defective treatment cannot always be said to the a negligent treatment and doctor can not be held responsible for failure in the treatment unless a positive evidence including expert evidence is brought in support of allegations of negligence or deficiency of service. There is any such material as stated supra from the complainants side in proof of the medical negligence or deficiency of service of the opposite party towards the said patient.
17. The skills of medical practitioner differ from doctor to doctor and from the nature of the profession there may be more than one course of treatment and the medical opinion may differ with regards to course of action , but as long as the doctors course of action and manner of treatment is acceptable and that he had attended the patient with due care and skill it would be difficult to hold doctors negligence and hence the course to be slow in attributing negligence on the part of the doctor if the patient still does not survive or suffered a permanent ailment, as per the decision reported in 1996 (2) Supreme Court cases page 634 and 1997 (2) CPR page 160.
18. In the decision reported in 2002 (1) ALT page 34 (CPA) the doctor whowas given treatment to patient for T.B in spite of referral doctor’s and other medical reports of patient brought discloses cancer decease, was held guilty of medical negligence, is having any applicability to the facts and circumstances of the complainants case for want of any such earlier material which would make out the opposite parties reluctancy to said material .
19. It is contended by the complainants side that till the Opposite Party No.1 has not given treatment for T.B to the patient and would have properly diagnosied the peretonial carcinoma or peretonial lesothelioma and gave any such treatment meant for said decease the patient would have not died and as there is lack of such approach on the part of the Opposite Party No.1 is liable for his error in judgement and consequent treatment rendered. But as from evidence of the P.W 1 and 2 the said decease is having any surgical treatment as it would be noticeable in advanced stage only and not cureable and its primary source could not be detectable, there appears any merit and force in the contentions taken by the complainants side to draw any liability of the opposite parties especially when the evidence of P.W 1 and 2 is that even if the patient was referred by Opposite Party No.1 to the P.W 1 and 2 on the first visit of the patient and would have been deducted of peritoneal carcinoma, the same treatment what they have rendered now to the patient would have been given and due to the nature of said decease the said patient would not have survived.
20. As any medical negligence or deficiency of medical service of the Opposite Party No.1 is made out the Complainant is not entitled to the claims made in the complaint at the liability of the opposite parties.
21. As any deficiency of service or medical negligence of the Opposite Party No.1 towards the patient is made out there appears any liability of the Opposite Party No.2 as insurer of the Opposite Party No.1 to the claim of the complainant even to the extent covered under the Insurance Policy.
22. Consequently, there being any merit and force to the case of the Complainant and any of the liability of the opposite parties to the complainants claim, the Complainant is dismissed with cost.
Dictated to the stenographer, transcribed by her, corrected and pronounced by us in the open bench this day 27th day of September, 2007.
Sd/- Sd/-
MEMBER PRESIDENT
APPENDIX OF EVIDENCE
Witnesses Examined
For the complainant : For the opposite parties :
P.W.1. Deposition of P.W.1 dated 24.3.2007
(Dr R. Venkateswara Rao) (along with
Advocate Commissioner Report)
List of exhibits marked for the complainant:-
Ex.A1. Discharge Card, dated 10.5.2005 (page No. 3 to 6)
Ex.A2. Discharge summary Card of Asian Institute of
Gastroenterology, Hyderabad. Dated 26.5.2005.
Ex.A3. Investigation Report, Issued by Dr. B. Kalyani,
Consultant Pathologist.
Ex.A4. Investigation Report , Issued by Dr.S. Anuradha,
Consultant Pathologist.
Ex.A5. Investigation Report, Issued by authorised
Signatory.
Ex.A6. Ultrasonography Report Issued by Dr.V.Gangadhar
Consultant Radiologist, dated 23.5.2005.
Ex.A7. Cytology Report Issued by Dr.C.Ramji,
Consultant Pathologist.
Ex.A8. Investigation Report , issued by Dr.S.Anuradha,
Consultant Pathologist.
Ex.A9. Investigation Report , issued by authorised
Signatory.
Ex.A.10. Ultrasonography Report ,issued by Dr.M.A.Mateen,
Consultant Radiologist.
Ex.A 11. Investigation Report, issued by Dr. S.Anuradha,
Consultant Pathologist.
Ex.A 12. Investigation Report, issued by Dr. S.Anuradha,
Consultant Pathologist.
Ex.A 13. Authorised Signatory.
Ex.A 14. Authorised Signatory.
Ex.A 15. Ultrasonography Report issued by Dr.M.A.Mateen
Consultant Radiologist.
Ex.A 16. Discharge Summary Card of Asian Institute of
Gastroenterology, Hyderabad.
Ex.A 17. Investigation Report, issued by Authorised signatory.
Ex.A 18. Ultrasonography Report issued by Dr.M.A.Mateen
Consultant Radiologist.
Ex.A 19. Colonoscopy Report issued by Dr. Sandeep Lakhtakia
Ex.A 20. Biopsy Report , issued by Dr.C.Ramji, Consultant
Pathologist.
Ex.A 21. Prescription, dated 30.11.2004 of
Dr.B. Rama Chandra Reddy, Government General
Hospital, Kurnool to Apollo Medical Centre,
N.R.Peta, Kurnool.
Ex.A 21A. Discharge receipt of Rs.3,295/- .
Ex.A 22. Prescription, dated 6.12.2004 of
Dr.B.Rama Chandra Reddy, Government General
Hospital, Kurnool to Apollo Medical Centre, Kurnool.
Ex.A 22A. Discharge bill, dated 17.6.2005 for Rs.3.295/-.
Ex.A 23. Prescription, dated 11.12.2004 of
Dr.B.Ramachandra Reddy, Government General
Hospital, Kurnool to Apollo Medical Centre,
Kurnool.
Ex.A 24. Prescription, dated 31.12.2004 of
Dr.B.Ramachandra Reddy, Government General
Hospital, Kurnool to Apollo Medical Centre,
Kurnool.
Ex.A.25 Prescription, dated 25.1.2005 of
Dr.B.Ramachandra Reddy, Government General
Hospital, Kurnool to Apollo Medical Centre, Kurnool.
Ex.A 26. Prescription, dated 15.2.2005 of
Dr.B.Ramachandra Reddy, Government General
Hospital, Kurnool to Apollo Medical Centre,
Kurnool.
Ex.A 27. Prescription, dated 4.3.2005 of
Dr.B.Ramachandra Reddy, Government General
Hospital, Kurnool to Apollo Medical Centre,
Kurnool.
Ex.A 28. Prescription, dated 29.3.2005 of
Dr.B.Ramachandra Reddy, Government General
Hospital, Kurnool to Apollo Medical Centre,
Kurnool.
Ex.A 29. Investigation Report, dated 30.11.2004, issued
By Dr. C.A. Santhosh Varma, M.D., Radiologist.
Ex.A 30. Treatment Summary, dated 08.7.2005 issued
By Dr. R.V.Rao,M.D., D.M.
Ex.A 31. Receipt, dated 8.7.2005 of Vivekananda Hospital,
Hyderabad.
Ex.A 32. Final bill cum receipt of Vivekananda Hospital,
Hyderabad.
Ex.A 33. Diagnostic report, dated 30.7.2005 of
Vivekananda Hospital, Hyderabad.
Ex.A 34. Diagnostic report, dated 30.7.2005 of
Vivekananda Hospital, Hyderabad.
Ex.A 35. Final bill cum receipt of Vivekananda Hospital
For Rs.1028/-.
Ex.A 36. Treatment summary, dated 31.8.2005 issued
By Dr. R.V.Rao, M.D., D.M.,
Ex.A 37. Diagnostic Report of Vivekananda Hospital,
Hyderabad, dated 22.8.2005.
Ex.A 38. Treatment summary . dated 23.8.2005 issued by
Dr.R.V.Rao, M.D., D.M.,
Ex.A 39. Bio-chemistry Report of Vivekananda Hospital
Hyderabad, dated 13.9.2005.
Ex.A 40. Final bill cum receipt of Vivekananda Hospital,
Hyderabad for Rs.855/-.
Ex.A 41. Cash bill , dated 13.9.2005 of S.S.Nims Medical
Hall, Hyderabad, for Rs.17,312/-.
Ex.A 42. Cash bill , dated 13.9.2005 of S.S.Nims Medical
Hall, Hyderabad, for Rs.393/-.
Ex.A 43. Cash invoice, dated 22.8.2005 of S.S.Nims Medical
Hall, Hyderabad.
Ex.A 44. Recept of Rs. 15,829/-.
Ex.A 45. Cash Invoice, dated 14.9.2005.
Ex.A 46. Treatment summary, dated 14.9.2005 issued
By Dr.R.V.Rao, M.D., D.M.,
Ex.A 47. Diagnostic Report, dated 13.9.2005 of
Vivekananda Hospital, Hyderabad.
Ex.A 48. Final bill cum receipt of Vivekananda Hospital
Hyderabad, of Rs.887/-
Ex.A 49.Cash Invoice, dated 17.10.2005 of S.S.Nims
Medical Hall, Hyderabad.
Ex.A 50. Treatment summary, dated 25.10.2005 issued by
Dr.R.V.Rao, M.D., D.M.,
Ex.A 51. Cash invoice, dated 24.10.2005 of S.S.Nims
Medical Hall, Hyderabad of Rs.313.50/-.
Ex.A 52. Cash invoice, dated 24.10.2005 of S.S.Nims
Medical Hall, Hyderabad of Rs.15,294.24/-.
Ex.A 53. Final bill cum receipt of Vivekananda Hospital,
Hyderabad for Rs.705/-.
Ex.A 54. Treatment summary, dated 12.12.2005 issued
By Dr.R.V.Rao, M.D., D.M.
Ex.A 55. Final bill cum receipt of Vivekananda Hospital,
Hyderabad, of Rs.3,533/-.
Ex.A 56. Xerox copy of cash invoice, dated 25.10.2005 of
S.S.Nims Medical Hall, Hyderabad.
Ex.A 57. Death Certificate.
Ex.A 58. Office copy of legal notice, dated 17.3.2006 along
With its postal receipt.
Ex.A 59. Reply, dated 19.3.2006 of opposite party No.1.
C.1. Case Sheet, dated 4.3.2005 P.No.15
& 16 of Ex.C1 for to Dr. Nageswara Reddy,
page No.s 1 to 74)
C.2. Prescription, dated 23.4.2005 page No.11
& 12 of Ex.C1 issued by opposite party No.1
List of exhibits marked for the opposite parties:
Ex.B1. Office copy of letter, dated 14.6.2007 addressed
by opposite party No.1 to opposite party No.2
marking copy to complainant.
Sd/- Sd/-
MEMBER PRESIDENT
Copy to:-
1. Sri.N. Ramachandra, Advocate, Kurnool.
2. Sri.M.L.Sreenivasa Reddy, Advocate, Kurnool.
3. MS.CMK.Ranjani, Advocate, Kurnool.
Copy was made ready on:
Copy was dispatched on:
Copy was delivered to parties:
