Complaint for realization of compensation,  costs etc.

        The averments in the complaint can be briefly summarized as follows:

              The complainant is a Mechanical EngineerGraduate and he is working as an Engineer in the NTPC at Haripad, Kayamkulam.  On 30.8.2004 he met with an accident and sustained fracture on his left hand.  He was admitted  in the Matha Hospiktal, Kathilil, Kollam wherein he had undergone a surgery  and steel rods were fitted to his left hand.   After some time  his fractured left hand got infected  and so he met  the doctor who advised removal of the implants.  On 11.4.2005 the operation was scheduled  to be held .  On the day of operation the complainant  seemed to be very tired and his pulse were weak.   Therefore he has referred to the first opp.party for medical check up and opinion for any cardiac problem  before the surgery is conducted.  The complainant on 12.4.2005 met   the 1^st opp.party who conducted  necessary tests and inform the complainant that he has acute cardiac problems and  referred him to the KIMS  Super Speciality Hospital at Thiruvananthapuram .  The complainant was shocked and  on 16.4.2005 he met Dr. Anand Srinivasan the consultant cardiologist D.M. Star Hospital, Ochira and after examining him the doctor stated that  the complainant  has no  symptoms of cardia problems .  On 23.4.2005 the complainant with a view to get a 3^rd opinion  met  Dr.V. Balachandran, Chief Physician, Cardio Diabetology, Dr. Nair’s Hospital,  Kollam who also conducted a  thorough checkup and TMT.  He has also informed the complainant that he has not cardiac problem.   After receiving the 2 medical opinion that he has no cardiac problem he got  much relief.   Due to the opinion given by the first opp.party the complainant suffered mental agony and harassment.  His surgery schedule to be held was also delayed with the result that  the skin has bulged and pus was oozing  out through the complainant’s fractured left hand.     The complainant has also suffered severe pain.  The act of the  1^st opp.party is illegally  negligent  and deficiency in service .  Hence the complaint.

              The first opp.party filed a version contending, interalia, that the complaint is not maintainable either in law or on facts.  Prognosis after detecting positive test result in medical investigation and suggesting further medical investigation pursuant to it cannot be termed as negligent act or deficiency in service within the meaning of Consumer Protection Act.  Hence the complainant is not having prima facie  case or having cause of action against  these opp.party.    The 1^st opp.party had conducted TMT  and Ecocardiogram tests  on the complainant and  made a reference for further medical  probe to  a higher centre..  The reference was made as a abundant caution with all bonafides.    But in TMT examination when the complainant was induced by exercise, ST segment depression with delayed recovery for 11 minutes was noted.  ST segment depression and delayed recovery are considered to be clear indications of myocardial ischaemia.  The averments in para 1 and 2 are denied.   There is no merit in the contention that the complainant suffered mental agony when the result was informed.   The patient was referred from  the local hospital to this opp.party was for  cardiac evaluation  and therefore  it cannot be said that it was a shocking information.  The averments in para 3 and 4 are also fully correct.   The  divergent medical investigation results by different doctors cannot be termed as negligent or imperfect medical act within the meaning of Consumer Protection Act.   Medical science acknowledges false positive  or false negative  stress ECG results.   The same can be due to given reasons such as coronary calcium level  hyper tension effect of some drugs etc  and can even   be due to unknown causes.  Coronary Angiogram is considered to be gold standard in determining the presence of CAD.   The result of CAG examination is considered  to be conclusive and if the complainant lhad subjected himself for CAG   he could have safely and conclusively contend  which amount the TMT results is false positive or false negative.   Upasana Hospital is having the world class modern and accurate machine  for conducting the TMT and the complainant was also examined by using the machine.   At the time of exercise induced TMT examination of the complainant, the first opp.party noted significant ST Segment depression with delayed recovery of 11 minutes.  It is a strong indication of myhocardial is chaemia which  reveals that the opinion of the 1^st opp.party  is correct.  The ECG corroborates the finding of the 1^st opp.party and the said test result is not as understood by the complainant.   Further the complainant himself would admit that on the day  without the TMT examination he was kept waiting for the surgery for  12 hours  without  any in take of food and after administering enima   The above  mentioned circumstances are factors that can affect stress ECG result and no clinician could be blamed for the same.    The medical advice of the 1^st opp.party is not false and deliberate as alleged by the complainant.   The complainant has not specifically or definitely  averred any cause of action as against this opp.party.   Medical advice for further investigation or imperfect surgical protocol or delay  in local hospital  are matters alien to create a cause of action against the opp.party.  The complaint  is not prima facie maintainable and hence the first opp.party prays to dismiss the complaint.

              The 2^nd opp.party filed a separate version with more or less identical contention  is that of the first opp.party.  The opp.party , the doctor has taken all  reasonable care and caution   in conducting the TMT  echocardiogram and other tests, in opp.party 2 hospital which is having  most modern  and accurate machine for  the same.   The hospital  had not levied any consultation fee or establishment charges  from the  complainant  who has paid only the investigation charges .   Therefore the complainant is not a consumer within the meaning of Consumer Protection Act.  The complainant  has no cause of action against the opp.party.  Hence the 2^nd opp.party also prays to dismiss the complaint

Points that would arise for consideration are:

1.     Whether there is deficiency in service on the part of the opp.party

2.     Reliefs and costs.

For the complainant PW.1 is examined.   Ext. P1 to P14 are marked.

For the opp.party DW.1 is examined.   Ext. D1 series is marked.

Points:

              There is no dispute that the complainant sustained fracture to his left forearm in a Road Traffic accident and internal fixation with implants was conducted on 4.9.2004, that subsequently the surgical site got infected necessitating removal of implants, that he got admitted in the Matha Hospital for this purpose, that on 11.4.2005 when the surgery was scheduled to be held he developed a syncope at the operation theatre and he was advised to have a TMT to exclude cardiac problems if any  and that  accordingly he was referred to opp.party for this purpose.   The contention of the complainant is that the 1^st opp.party negligently conducted the tests and informed the complainant that he had certain cardiac problems and referred him to the KIMS Hospital, Thiruvananthapuram with dishonest intention.  It is  the further case of the complainant that dissatisfied with the report of opp.party 1 he met one Dr. Anand Sreenivasan, a consultant cardiologist of Star Hospital, Oachira aand one Balachandran of Dr. Nairs Hospital, Kollam and both of them after detailed examination informed the complaint that he has no cardiac problems.   According to the complainant due to the wrong diagnosis and advise given by the 1^st opp.party the surgery for removal of implants was very much delayed causing him mental agony and pain.

              According to opp.party 1 on clinical examination and Echo cardiogram test the complainant was found to be normal but in TMT examination when the complainant was induced by exercise ST segment depression with delayed recovery for 11 minutes was noticed and as they are considered to be indications of myocardial ischacmia he was referred  to KIMS hospital for further medical investigation to exclude possible coronary Artery Disease.

              Though a contention is raised by the complainant that the 1^st opp.party referred him to KIMs super specialty  hospital unnecessarily with a view to get commission  no evidence in this regard is forthcoming.   The complainant has also not adduced any medical evidence to establish that the finding of opp.party 1 was wrong.

              Interrogatories and counter interrogatories filed by both sides were forwarded to Dr. C.G. Bahuleyan, Chairman and Senior Interventional Cardiologist of Ananthapuri Hospital and Research Institute, Thiruvananthap0uram who has furnished answers to them.   The 2^nd opp.party submitted the interrogatories

1.     Is there any possibility for divergent test result of TMT examination conducted on same person by different doctors in different condition ?

2.     Is there any possibility for false positive or false negative test results?

The expert has given the following answers:

1.     TMT examination done on the same patient on different occasions by different doctors can give rise to different test results.   Factors like, work load achieved during testing, Medications patient is receiving at the time of TMT examination, Co-existing condition esp.Anaemia, Infections baseline ECG abnormalities all can result in variable test results.

2.      There is possibility of  false positive or false negative test results.   False positive is a situation when the ECG will be interpreted as positive for coronary artery disease, but a definite test like coronary angiography may not show significant narrowing in the coronary arteries.   Conditions laike, bundle branch block, left ventricular hypertrophy, Pre-excitation syndrome, severe anemia and drugs like digitalis all can result in a false positive TMT result.   False negative result is a situation when the TMT is interpreted as negative for coronary artery disease, but coronary angiography reveals narrowing of the coronary artery.

     For the interrogatory submitted by opp.party viz-11  2  Interpretation of  of stress ECG dated 12.4.2005 [Annexure – III] by Dr. Binu Ramesh revealed that there is abnormally in ECG  Basing on the said interpretation and the clinical history of syncop0e on previous day [Annexure-1], Dr. Binu Ramesh made a reference for further evaluation.   Whether the interpretation of stress ECG or advice for further evaluation were justified? Can the advice for further evaluation be termed as unfair and ill motivated? Dr. C.G. Bahuleyan has given the following answer the interpretation or stress ECG or advise for further evaluation is not unjustifiable.  Therefore it cannot be considered as unfair.

              So from the answer to the interrogatories furnished by the expert opp.party 1 cannot be found to be negligent or there is any deficiency in service render by him.

              In this context it is worth pointing out that the 1^st opp.party has not given any treatment to the complainant but he has only evaluated the complainant referred to him for this purpose.   The complainant cannot say that he was shocked by the result as he was referred to Opp.party 1 for ascertaining as to whether he has any heart disease or not.   There is absolutely nothing to show that opp.party has resorted to a method not prevailing or any wrong test or there was any negligence in conducting the tests. Opp.party 1 has opined on the bases of the result that the complainant requires further evaluation which will not come within the purview of medical negligence.   The complainant in our view has failed to establish that opp.party 1 was negligent or there is any deficiency in service on his part.  Point found accordingly.

              In the result the complaint fails and the same is hereby dismissed.  No costs.

                  Dated this the   29^th     day of September, 2009.

                            I N D E X

List of witnesses for the complainant

PW.1. Gopakumar

List of documents for the complainant

P1. – Echocardiogram

P2. – TMT

P3. – Reference letter

P4. – Bill

P5. – TMT report issued by Star Hospital

P6. – Reference letter issued by Star hospital

P7. – Bills  by star hospital

P8. – TMT report issued by Nairs hospital

P9. – Bills  by Nairs hospital

P10. – ECG report issued by Cardio Vascular Centre, Ananthapuri Hospital

P11. – Echo

P12. – TMT report

P13. – Bills issued by Ananthapuri hospital

P14. – Certificate

List of witnesses for the opp.party

DW.1. – Dr. Shaji

List of documents for the opp.party

D1. - Case sheets