BEFORE THE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD.
F.A.No.1740/2007 AGAINST C.C.No.61/2006, DISTRICT FORUM, KURNOOL.
Between:
1. V.R.Jacintha W/o.late M.Venganna
Christian, aged about 55 years.
2. M.Venganna, S/o.M.Venkataiah (died)
R/o.H.No.79-6A, Krishnanagar,
Kurnool. Appellants/
Complainants
And
1. Dr.B.Ramachandra Reddy, M.D.,
Apollo Medical Centre,
No.43-67-A, N.R.Peta, Kurnool.
2. M/s.United India Insurance Company Ltd.,
Rep. by its Divisional Manager, Kurnool. Respondents/
Opp.parties.
Counsel for the Appellants: M/s.N.Ramachandra
Counsel for the Respondents: M/s. M.Hari Babu-R1
Smt.S.A.V.Ratnam-R2.
QUORUM:THE HON’BLE JUSTICE SRI D.APPA RAO, PRESIDENT AND
SMT.M.SHREESHA, HON’BLE MEMBER
.
MONDAY, THE SIXTH DAY OF DECEMBER,
TWO THOUSAND TEN
(Typed to the dictation of Smt.M.Shreesha, Hon’ble Member)
***
The complainants’ only one son, namely, M.(Murahari)_ Prasad, who was studying Bachelor of Physiotheraphy IV Semester (II year) approached opposite party with a complaint of abdominal pain. Opposite party referred him to Radiologist Dr.C.A.Santosh Varma, M.D. for investigation and ultra sonography of the abdomen and the finding of sonography of the abdomen was:
“Thickened Bowel wall in left iliac Fossa with minimal free fluid
between Bowel loops, possibility intussusetpion”
Suggested clinical correlations. If there is need discussion is suggested”.
Intussusceptions means slipping of one part of intestine into another part below it becoming enmeshed. Prognosis is good if surgery is immediately performed. The complainants submitted that in the above circumstances, opposite party ought to have referred the patient to a surgeon but he has diagnosed the ailment as T.B. and treated the patient accordingly for nearly 5 months inspite of which there was no relief at all even though the patient and the complainants met the opposite party more than 10 times. It is their case that to come to the conclusion that the disease was T.B. none of the symptoms as below were noticed:
· Cough of more than 1-3 weeks of duration
· Blood streaked sputum
· Chest pain and difficulty in breathing
· Low grade fever especially in the evening
· Malaise and weakness, occasional night sweats
· Diminished appetite
· Loss of weight
The complainants submitted that when the patient could not bear the suffering, he was advised to be taken to Asian Institute of Gastro-entrology. On 22-5-2005 the patient was diagnosed by the Institute as suffering from Peritoneal Carcinomatoses and Oncologists, Dr.R.V.Rao and Chief Surgeon, G.V.Rao treated the patient. It is the case of the complainant that had the opposite party referred the patient to a surgeon every thing could have been known, the detected tumor could be removed without major surgery. It is the case of the complainants that they lost their son because of sheer negligence of opposite party in diagnosing the disease wrongly and wasting time of 5 months. Hence the complaint for a direction to the opposite party to pay the following amounts:
1. Compensation of Rs.20,00,000-00
2. Damages-Specific
a) Transport charges from Kurnool to
Hyderabad and vice versa Rs.1,00,000-00
b) Board and Lodging Charges Rs.1,00,000-00
c) Medicines Rs.4,00,000-00
d) Surgery fees for doctor Rs.1,05,000-00
e) Nursery charges and other
material required Rs.1,00,000-00
3. General
Mental agony & suffering of the
Complainants Rs.2,00,000-00
------------------------
Rs.30,05,000-00
==============
The complainants submitted that they claimed Rs.30,05,000/- they restricted the claim to Rs.20,00,000/- for the purpose of pecuniary jurisdiction of the District Forum.
Opposite party filed counter stating that the complainant and his son approached the opposite party on 30-11-2004 for diagnosis and treatment complaining pain in left abdomen and he referred the patient to Radiologist for investigation and ultra sonography of the abdomen. The Radiologist gave a finding that “Thickened Bowel wall in left iliac Fossa with minimal free fluid between Bowel Loops” is true but denied that the radiologist noted in his report “possibility of ‘intussuspection’ and suggested clinical correlation but the radiologist in his report dated 30-11-2004 noted ‘possibility of “?” intususeption but the radiologist did not suggest for clinical correlation and discussion but the Pathologist in his report suggested clinical correlation. He denied the allegation that he ought to have referred the patient to surgeon and also the allegation that without any further clinical findings, he has diagnosed the ailment as T.B. and treated the patient accordingly for 5 months inspite of which there was no relief and also denied that the complainants and the patient met him more than 10 times. He admitted that he advised the complainants to take the patient to Asian Institute of Gastro-entrology and that the patient was admitted on 22-5-2005 and the first ultrasonograpy report dated 23-5-2005 is suggestive of tuberculous abdomen only, fluid analysis i.e. cytology report dated 24-5-2005 showed atypical cells which is not conclusive proof of cancer but tissue diagnosis report (biopsy) which is confirmatory proof is not done. He was discharged on 2-5-2005 with diagnosis as Carcinomatoses is true but as seen from the subsequent medical records of the patient including the medical record dated 12-12-2005 the diagnosis even at Hyderabad after a gap of 8 months from the date of taking first treatment on 22-5-2005 from Asian Institute of Gastroenterology also discloses the uncertainity of any definite disease to the patient as they thought of two/three possibilities namely peritoneal carcinomatosis of primary esothelioma or pseudomyxoma peritnei with “?” on some visits. He denied the allegation of the complainants that they lost their son because of his sheer negligence in diagnosis and wrong treatment for nearly 5 months and submitted that as seen from the records filed by the complainant, the patient visited from 30-11-2004 to 29-3-2005 for eight times and not 10 times as alleged for a period of 5 months. He denied the allegation that Colonoscopy ought to have been done which he did not do and treated for T.B. Opposite party submitted that apart from prescribing other investigations to diagnose the disease on 30-11-2004, he advised investigations of UGE (Upper Gastro-endoscopy) and ‘Colonoscopy’ in a separate prescription advising the patient to get the same from Dr.V.Venkata Ranga Redy Gastroenterologist at Gouri Gopal Hospital, Kurnool but the patient refused to undergo ‘Colonoscopy’ and brought the other reports except colonoscopy and so the result of colonoscopy was not noted in the prescription. He submitted that he came to know through the patient that the patient refused to undergo Colonoscopy test and that the complainants have not filed some of the prescriptions purposefully including the investigation advice given for Colonoscopy test to diagnose the disease and by letter dated 19-3-2006 he requested the complainants to submit the records showing the treatment taken prior to consulting to enable him to give suitable reply to the legal notice dated 17-3-2006 but the complainants did not respond for the same.
Opposite party further submitted that the patient was a student of Bachelor of Physiotheraphy and used medicines for his ailment before coming to him and after seeing those previous medical prescriptions and examining the patient, he has given treatment thinking that the patient had T.B. abdomen/cryptic miliary or disseminated T.B. as the patient has complained of pain in the abdomen, loss of appetite, cough. In case of advanced lung T.B. only the symptoms shown in the complaint will be present but in case of abdominal T.B. in its initial stage or in cryptic tuberculosis none of the said symptoms may be noticed. Moreover in case of “Intussusception” due to obstruction, patient normally is expected to have vomiting, distention of abdomen with visible movements of bowel and absolute constipation but here the patient had not complained of vomiting and other features of bowel obstruction due to intussusception and also he had no clinical features of intussception per se like abdominal pain, passing red current jelly stool, palpable mass in abdomen and only an ultra sound finding with possibility of “?” intussception by radiologist but not clinical finding and hence he who had 30 years experience in General Medicine out of his vast experience and considering all aspects including the age of the patient suspected T.B. more than cancer and used the drugs for tuberculosis. He submitted that he treated the patient with reasonable care and denied any negligence or deficiency in service and prayed for dismissal of the complaint.
Opposite party submitted that he had taken professional indemnity Dr.(IMA) policy No.05110046/05/34/00000097 from United India Insurance Company Limited, Kurnool and the same is being renewed and is in force.
Opposite party No.2 filed its written version stating that the complaint is not maintainable in law and denied the allegations made in the complaint against it as there was no cause of action against it. It alleged that it was not aware of the allegations mentioned in paras 3 to 11 of the complaint and of the treatment given by opposite party No.1 to the patient for nearly 5 months and the wrong diagnosis of the disease. It submitted that it has nothing to do with the death of the complainants son due to negligence of opposite party No.1 and that it was added unnecessarily. It admitted that opposite party No.1 had taken Professional Indemnity Policy for the period from 16-2-2004 to 15-2-2005 for covering one accident during the policy period and the indemnity limit of Rs.5,00,000/- and that the policy was renewed from 22-2-2005 to 21-2-2006 and then from 21-2-2006 to 20-2-2007. As per the terms and conditions of the policy, the indemnity applies only to claims arising out of the bodily injury or death of any patient caused by error, omission or negligence in professional service rendered by the insured and the insured has to intimate about the claim to the insurer immediately by giving written notice. It submitted that till today, it has not received any claim notice from the insured and the letter dated 14-6-2006 issued to opposite party No.2 through the advocate of opposite party No.1 is not a claim notice. It submitted that after receiving the above said letter and after making confidential enquiry it learnt that there was no negligence on the part of opposite party No.1 and hence the question of indemnifying the insured does not arise. It also submitted that as the insured violated the terms and conditions of the policy in not intimating the claim, it is not liable to pay damages even if there was negligence in treating the patient. It further submitted that as per the procedural law, if any negligence on the part of the insured is established, the insured has to comply the order and later has to make a claim before the insurer for re-imbursing the amount if any by complying with the conditions laid down under the policy. It further submitted that opposite party No.1 has not given any opportunity to it to ascertain the fact of the treatment by arranging an investigator till the receipt of notice from the Forum and non intimation and non submission of the required documents within the time as laid down in the policy suffices that opposite party No.1 has no right to make any claim against it towards indemnity and prayed for dismissal of the complaint.
Based on the evidence adduced i.e. deposition of P.W.1 and PW.2, Exs.A1 to A59, C1 and C2 and B1, the District Forum came to the conclusion that there was no deficiency in service or medical negligence on the part of opposite party No.1 and hence dismissed the complaint.
Aggrieved by the said order, the complainants preferred this appeal.
The learned counsel for the appellants/complainants contended that the District Forum erred in believing the third party affidavit of one Mr.Nagaraju who is a close friend of opp.party no.1’s son stating that the patient refused to undergo Colonoscopy. The appellants submit that no such endorsement regarding refusal is made in Ex.A21 by opp.party no.1. It is the contention of the appellants that even a Barium X-ray diagnosis was not done and that opposite party no.1 had treated the patient for T.B. when he was suffering from Cancer. The patient was 22 years old and his weight is noted as 49 kgs. and the patient was administered T.B. Drgus merely on clinical examination. The doctor did not eliminate the possibility of development of peritoneal carcinoma after consulting the patient.
The brief point that falls for consideration is whether there is any negligence on behalf of the opp.party no.1 doctor in treating the patient for tuberculosis?
It is the case of the complainants that their son on 29.11.04 approached opposite party for abdominal pain and underwent ultra sound examination of abdomen on his advise, the result was as follows:
“Thickened Bowel in left iliac Fossa with minimal free fluid between Bowel Loops, possibility of Intussuseption.’
The complainant submits that Intussuseption is a medical term which means slipping of one part of intestine into another and that prognosis is good if surgery is performed. But opp.party no.1 doctor without referring to any surgeon treated the patient for T.B. for nearly 5 months.
Ex.A21 dt.30.11.04 shows the clinical symptoms as loss of appetite, tenderness, left iliac cosa, and it prescribed some tests like R.V.Sugar, blood urea syram creatinine . The results were written overleaf “H.B.12. 2G/l, ESR 60 mm./ hr. peripheral sphere, TC around 9200, P17, L28, E4 colonoscope”. Ex.A23 is dt.11.12.04 in which ‘pain in the abdomen’ is written and weight is recorded as 51 kgs. in the prescription and medicines were continued. Ex.A24 dt.31.12.04 is the prescription in which opp.party no.1 stated that appetite was good and written the weight as 50kgs. Ex.A25 is the prescription dt.25.1.05 in which symptoms are recorded as low grade temperature, weakening , mild abdominal discomfort and weight-49 kgs. and the same medicines were continued. Ex.A26 is dt.15.2.05 which once again show the weight as 49 kgs. Ex.A28 is dt.29.3.05 in which the weight is recorded as 47 kgs. It is observed from the record from Exs.A21 to A28 which are the prescriptions issued by opp.party no.1 doctor that the weight of the patient consistently varying from 51 to 47 kgs.
It is the complainants’ case that as their son was unable to bear the pain he approached Asian Institute of Gastroenterology on 22.5.2005 and was diagnosed to be suffering from (peritoneal carcinomatoses). Ex.A2 is the treatment given by the Asian Institute of Gastroenterology and Exs.A3 to A6 are the various tests which the patient had to undergo in Asian Institute of Gastroenterology. Ex.A6 dt.23.5.05 is the Ultra Sonography of the abdomen which shows thickened peritoneum with minimal LT. pleural effusion. Ex.A7 is the Cytology Report suggestive of malignancy. The progress notes of Asian Inst. of Gastroenterology shows in the history of the patient that there is abdominal distension and weight loss .A laparotomy was done on 3.5.05, a special consent was taken on 2.5.05 for colostomy, the patient was reviewed by Oncologist Dr.R.V.Rao for undetected primary edinoma with bowel distension. Treatment with chemotherapy is discussed.
Dr.Nageswar Reddy, the Chief of Asian Institute of Gastroenterology also deposed before the Advocate Commissioner stating that many conditions can cause peritoneal nodules including T.B. and cancer. Biopsy of the nodules is to be taken to find the cause of the nodules which in the instant case is cancer. The doctor deposed that vide Exs.C1 & C2 opp.party no.1 doctor had referred the patient to him and the patient might have suffered T.B. He also deposed as follows:
“ The Ex.C2 is the said prescription given by the O.P.No.1. As seen to prescriptions and medical reports dt.30.11.2004 Ex.A21, 06-12-2004 Ex.A22, 11-12-2004 Ex.A 23, 31-12-2004 Ex.A 24, 25-01-2005 Ex.A 25, 15-2-2005 Ex.A26 , 04-03-2005 Ex. A27, 29-03-2005 Ex.A 28, report of USG dt.30-11-2005 Ex.A29, the patient might have suffered tuberculosis disease, it is possibility. So in normal course any Doctor will start giving treatment for Tuberculosis only. Even by visit of patient to our hospital on 22-08-2005 the primary source of cancer could not be detected/ There is no surgical treatment for peritoneal Carcinoma disease. The possibility of development of peritoneal Carcinoma disease after consulting the patient on 30-11-2004 and before he came to my institution on 29-04-2005 can not be ruled out, it is unusual presentation of cancer in the age group of deceased. The contention of the complainant that the complainant No.2 was called by me and showed the lump in the large intestine is not correct. So far this peritoneal Carcinoma disease is concerned there is no other treatment except palliative Chemotherapy. So even if the patient was referred to the surgeon no purpose could have been served in this case. As per Ex.A1 on 02-05-2005 colonoscopy was done. The Gastro cancer is different from colon cancer. The peritoneal cancer is different from conolo cancer. The colon is different from stomach. The Gastro cancer is different from colono cancer. The peritoneal Gastro Cancer is different from colono cancer. The Data published in the Hindu News paper dt. Nil with a caption “ Endoscopy Theature lanche” is applicable to Gastro cancer but not to the facts of this patient in this case. On first day i.e. 29-04-05, the patient was asked to continue for Tuberculosis treatment. The entire reports and discharge summaries of he patient of this institution were handed over to the attendant of he patient by obtaining his signature to the said effect. Ex.C1 is our Hospital case sheet given to the patient consisting with 74 pages. If the patient had approached me with the symptoms on his first visit on 30-11-2004 I too would have given treatment for Tuberculosis treatment only.”
The expert witness also stated that he too would have treated the patient for T.B. only considering the symptoms.
Deposition of PW.2: In this deposition Dr.R.V.Rao Oncologist stated that peritoneal carcinoma can be detected only at an advanced stage and is not a curable cancer and symptoms like discomfort, loss appetite and loss of weight are common in both T.B. and intestinal cancer.
We rely on the judgement of Apex Court in INDIAN MEDICAL ASSN. v. V.P.SHANTHA (1995) 6 SCC 651 the court approved a passage from Jackson and Powell on Professional Negligence and held that”
“The approach of the courts is to require that professional men should possess a certain minimum degree of competence and that they should exercise reasonable care in the discharge of their duties. In general, a professional man owns to his client
a duty in tort as well as in contract to exercise reasonable care
in giving advise or performing services”.
Supreme Court then opined as under:
“The skill of medical practitioner differs from doctor to doctor. The very nature of the profession is such that there may be more than one course of treatment which may be advisable for treating a patient. Courts would indeed be slow in attributing negligence on the part of a doctor if he has performed his duties to the best of his ability and with due care and caution. Medical opinion may differ with regard to the course of action to be taken by a doctor treating a patient, but as long as a doctor acts in a manner which is acceptable to the medical profession and the court finds that he has attended on the patient with due care, skill and diligence and if the patient still does not survive or suffers a permanent ailment, it would be difficult to hold the doctor to be guilty of negligence”.
Taking both these depositions into consideration and also the fact that the expert deposed that there is no surgical treatment for peritoneal carcinoma, the contention of the appellants/complainants that had opp.party no.1 referred the patient to a surgeon in the year 2004 itself i.e. after 30.11.2004 the patient would have survived is unsustainable. When the Oncologist and Gastroenterologist who both treated the patient subsequent to treatment of opp.party no.1 , have stated in their deposition that the symptoms are same and it is difficult to detect peritoneal carcinoma at an early stage, the contention of the complainant that the respondent/opp.party no.1 ought to have diagnosed it as peritoneal carcinoma at the very first instance itself is not sustainable. When the clinical symptoms are the same and the patient suffered from continuous abdominal pain vide Ex.C1 respondent/ opp.party no.1 referred the patient to Dr.Nageswar Reddy Gastroenterologist, therefore it cannot be stated that the respondent/opp.party no.1 had given any negligent treatment causing the death of the patient. The complainant could not establish by way of any documentary evidence that had the respondent/opp.party no.1 diagnosed the patient on 30.11.2004 at the very first instance when the patient presented himself before the doctor, the patient would have lived, we are of the considered view that the respondent/opp.party no.1 took reasonable care and caution and treated the patient with diligence and acceptable standards of normal medical parlance considering the symptoms.
Keeping in view the afore mentioned judgements and also the depositions of expert doctors we are of the considered view that there is no negligence on behalf of the respondent/opp.party no.1
In the result this appeal fails and is accordingly dismissed.
PRESIDENT
MEMBER
Dt. 6.12.2010
