THIS IS THE OLDEST CASE OF THE YEAR 2003 PENDING BEFORE THIS FORUM
DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
(CENTRAL) ISBT KASHMERE GATE DELHI
CC No. 655/2003
No. DF/ Central/ Date
1. Mrs. Chanchal Kapoor
Widow of Late Sh. Prem Kapoor
2. Sh. Vishal Kapoor
S/o Late Sh. Prem Kapoor,
3. Ms. Pooja Kapoor,
D/o Late Sh. Prem Kapoor
All residing of House No. – 1197
Sector No. 7, Extension Gurgaon,
Haryana ......COMPLAINANTS
Versus
1. Dr. S.N. Wadhwa Senior Consultant (Urology)
Resident of House No. C-1/1
Ansari Nagar, AIIMS Campus, New Delhi – 110029
2. Sir Ganga Ram Hospital
Rajender Nagar, Delhi …..OPPOSITE PARTIES
Quorum: Ms. Rekha Rani, President
Ms. Manju Bala Sharma, Member
Mr. R.S. Nagar, Member
ORDER
Ms. Rekha Rani, President
Legal heirs of deceased Mr. Prem Kapoor(in short the patient) has filed the instant complaint under Section 12 of the Consumer Protection Act, 1986 as amended seeking compensation of Rs. 20,00,000/- from OP1 and OP2 alleging therein that Sh. Prem Kapoor died due to utter medical negligence on their part in conducting proper diagnosis of his disease in time. It is alleged that OPs examined him on 06.12.2001. Instead of admitting the patient in the hospital on 06.12.2001,
he was admitted on 17.12.2001. No C.T. Scan was done which was required for proper treatment of the patient. After being admitted in the OP hospital his first surgery for right renal stone was conducted on 21.12.2001. Biopsy report of kidney tissue was given on 24.12.2001 and C. T. Scan was done on 27.12.2001. Although medical condition of the patient needed immediate attention but there was a gap of 10 days for doing surgery for kidney removal on the pretext that there were Christmas holidays. Patient was discharged from the OP hospital on 07.01.2002 although he was not fit to be discharged. Patient was also made to visit the hospital for removal of stitches which were removed on 14.01.2002.
OPs contested the claim vide their reply. It is stated in the reply that the patient complained of recurrent pain in the right flank, and as per IVP x-rays which the patient was already carrying, he was diagnosed as a case of Staghorn Calculus in right kidney with poor function. Relevant investigation including urine routine & microscopy and culture were advised. It is further stated that as soon as urine culture report arrived the appropriate sensitivity antibiotic Tab Zanocin was started and recommended to be taken initially for 10 days to preoperatively bring infection under control. Surgery on Staghorn calculus patients with uncontrolled infection is stated to be hazardous in view of septic complications which they tend to suffer during and after operation. It is also stated that a pre anaesthesia check up was required and was done by the senior most and experienced anaesthetist Dr. V.P. Kumara who sought Cardiologist’s advice and evaluation before considering the patient fit for anaesthesia. It is further stated that on evaluation Dr. Rajnish Jain, Consultant Cardiologist found heart abnormality with a history of positive TM test that needed further evaluation by Stress Echo Cardiography, which was within normal and then clearance for surgery was given. It is further stated the after admission on 17.12.2001 the patient was prepared for surgery by giving antibiotics to keep infection under control, two transfusions to control anaemia, one each on 18th and 19th December and ensuring fitness from Cardiac point of view. It is stated in view thereof the question of delay and neglect in treatment does not arise. Further it is stated that after removal of stone the mucosa (the inner lining) of the kidney pelvis appeared to be unhealthy and swollen and accordingly OP decided to take biopsy to see the nature of abnormality. It is also stated that CT Scan is not a part of regular and routine work up of patients with Stag horn stone disease and therefore not done as there was no specific indication of cancer disease at the time of admission. It is also stated that disease of carcinoma was detected for the first time on 24.12.2001 when renal pelvis tissue report, Surg-path No. S-10728/01 was received. It is vehemently disputed that there was any delay or negligence in treatment of the patient by the OPs. Treatment is stated to have been carried out by competent medical persons as per standard medical procedure.
Both sides filed evidence by way of affidavits. Our predecessor bench vide their order dated 02.04.2008 discussed complainant’s grievances under 5 heads, namely,
“ (i) Delay in admitting the patient, was malafide, which proved fatal.
- No CT Scan was conducted prior to first surgery, thus warranting second surgery within 10 days of first surgery.
- Discharge of patient on 07.01.2002 in un-dischargeable condition.
- Harassing the patient by way of calling again and again for removal of stitches.
- The lapses on the part of OPs dragged the patient in IIIrd degree of Carcinoma on 22.05.2002.”
No deficiency in service was found by the forum on the heads mentioned above except under head (ii). It was held that there was negligence on the part of the OPs as they failed to check carcinoma before first surgery.
The predecessor forum agreed with the contention of the complainants that OPs were negligent in diagnosis and treatment of the patient as they failed to conduct CT Scan prior to first surgery on 21/12/2001. The forum held that’’ it was imperative on OP to check about carcinoma before the surgery’’
OPs preferred an appeal against the order of this Forum dated 01.04.08 vide first appeal no. 493/08 and vide their decision dated 01/09/11 our State Commission remanded the case back to us for deciding it after obtaining expert opinion while observing :
‘’In this case the question is one of negligence by
Dr. Wadhwa and in particular whether the attending Doctor could have and should have discovered the possibility of the existence of Carcinoma before the operation. It is not unoften that malignancy remains silent and untraceable. Each case however
depends upon its features and indications. It is therefore necessary to have expert opinion on this point.’’
In compliance with the order of the State Commission Expert Opinion was obtained from Rajiv Gandhi Cancer Institute. Opinion of Rajiv Gandhi Cancer Institute was received by this forum on 19/12/2018.
The complainants have filed the instant complaint alleging deficiency on the part of OPs for improper diagnosis having failed to conduct CT Scan abdomen prior to conducting first surgery on 21.12.2001. It is their case that had CT Scan been conducted before first surgery it would have been revealed that the patient was
suffering from carcinoma and thus the pain and agony of conducting second surgery on 01/01/02 would have been avoided and the patient would have survived.
OPs have filed joined written statement denying any negligence in diagnosis or treatment. It is stated that on the basis of IVP X-Ray report which the patient had brought it was diagnosed as the case of Stag horn disease. It is submitted that there was no indication to necessitate CT scan before first surgery. It is also stated that carcinoma was first detected on receipt of biopsy report. It is denied that OPs pushed the patient to 3rd degree of carcinoma.
As per the expert opinion the patient came to the OP Hospital with incidentally detected right renal calculi, with pus in urine i.e. pyuria and fever for last one month which are suggestive of urinary tract infection with renal stone disease not of malignancy. It is further stated in the report that patient had got ultrasound (USG), intravenous pyelogram (IVP), and DTPA renogram done, which
is standard and complete preoperative investigation for any rental stone disease. It is also reported that USG abdomen and IVP did not have any suspicious finding for tumor. Further it is mentioned that CTET abdomen is not a part of routine work up for renal stone disease. It is opined that treating surgeon followed evidence-based practice, to treat urine infection first before going for extended pyelolithotomy and that treating physician took right decision for extended pyelolithotomy instead of going for nephrectomy as first surgery, because split function of right kidney was 21.39% and that split function less than 15% would have made this patient a candidate for nephrectomy.
Our predecessor bench vide their order dated 01.04.2008 had held OPs guilty of deficiency in service in not diagnosing the patient for Carcinoma prior to first surgery. As per expert opinion the patient came to the hospital when symptoms of right renal calculi, with pus in urine and fever for the last one month. Patient had got USG, IVP and DTPA done which is stated to be standard and complete preoperative investigation for any renal stone disease. It is further opined that USG abdomen and IVP did not have any suspicious finding of tumor. There was no indication in the USG, IVP and DTPA which could raise suspicion for tumor due to
which CECT abdomen was not conducted. CECT abdomen is stated to be not a part of routine work up for renal stone disease.
What constitutes medical negligence is now well established through a catena of judgments. The Hon’ble Supreme Court in Jacob Mathew v. State of Punjab, (2005) 6 SCC 1 has observed as follows:
“(3) A professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.
(4) The test for determining medical negligence as laid down in Bolam case, WLR at p.586 holds good in its applicability in India.”
Applying these principles in the instant case, it can be seen that there is no evidence to conclude that the Respondents did not have the necessary qualifications or that they did not exercise reasonable competence and skills in dealing with the case. Complaint is accordingly dismissed. Copy of this order be sent to the parties as statutorily required. File be consigned to record room.
Announced this Day of 2019.
