Appeared at the time of arguments:

In F.A. No. 417/2021

For the Appellants                    : Mr. K. G. Sharma, Advocate

For the Respondents – 1 & 2      : Ms. Suchi Singh, Advocate

For the Respondent – 3             : Ex-parte vide Order dated 20.02.2023

For the Respondents – 4 to 8     : Mr. Amandeep Singh, Advocate

In F.A. No. 912/2021

For the Appellant                     : Mr. Amandeep Singh, Advocate

For the Respondents - 1 & 2      : Ms. Suchi Singh, Advocate

For the Respondents – 3 to 5 & 7: Mr. K. G. Sharma, Advocate

For the Respondent – 6             : Ex-parte vide Order dated 20.02.2023

ORDER

1.       These two Appeals have been filed by four Doctors – Dr. Mukesh Joshi & Ors. (hereinafter referred to as, the ‘Opposite Parties Nos. 2 to 5’) and the Oriental Insurance Co. Ltd. (hereinafter referred to as, the ‘Opposite Parties Nos. 6 to 10’) respectively against the same impugned Order dated 16.04.2021 passed by the State Consumer Disputes Redressal Commission, Punjab, Chandigarh (hereinafter referred to as the “State Commission”) in MA No. 2072 & 2073 of 2020 in CC No. 886 of 2018, whereby the Complaint filed by the Complainants was partly allowed with a total compensation of Rs. 33 lakh and Rs. 5,000/- towards litigation costs to be paid by the Appellants to the Complainants.

2.       Brief facts of the case are that, on the complaint of pain in left knee of their daughter - Ms. Jiya Sharma (hereinafter referred to as, ‘the patient’), her parents / Respondents Nos. 1 & 2 (hereinafter referred to as, the ‘Complainants’), on 10.05.2017, took her to Dr. Kulwant Singh (hereinafter referred to as, the ‘Opposite Party No. 1’) on 12.05.2017, who, after getting some tests conducted, advised the Complainants to visit ‘Joshi Super Specialty and Multispecialty Hospital’ at Jalandhar. On 16.05.2017, at Joshi Hospital, the patient was being treated under Dr. Mukesh Joshi – Opposite Party No. 2, who, after diagnosing the disease as Arthritis, treated the patient from 16.05.2017 to 08.07.2017. It was alleged that during the visits to the Opposite Party No. 2, the patient had unbearable pain and swelling increasing day by day in her knee with difficulty while walking, which condition, the Doctor referred to it as normal for that age with the assurance of cure with time.

3.       When the pain persisted, on 10.07.2017, the Complainants took the patient for second opinion to Dr. Rajesh Saggar – Opposite Party No. 4 at Vedanta Multispecialty Hospital, Jalandhar, who, after diagnosing the disease as Arthritis and getting some tests conducted, treated the patient for the same, but the condition of the patient deteriorated to the extent that she had to use a wheelchair. On 12.08.2017, on the advice of the Opposite Party No. 4, the patient was taken to Dr. Parshant Aggarwal – Opposite Party No. 5 at his clinic at Ludhiana, who, after examining the patient, detected the disease as ‘steroid dependent inflammatory oligoarthritis’ and prescribed certain tests. It was alleged that the Complainants followed all the directions of the Opposite Party No. 5, but the condition of the patient kept deteriorating which resulted in reduced blood count, eyes bulging out and even lymphnodes appearing on her neck and head. On 02.09.2017, the Complainants revisited the clinic of Opposite Party No. 5, who again advised various blood tests of complete haemogram, etc. It was alleged that upon query about the serious condition of the patient, the Opposite Party No. 5 behaved rudely with the Complainants and asked them to shift the patient to another doctor.

4.       On 03.09.2017, the patient was taken to Dr., Sandeep Goel, M.D. (Doctorate of Medicine), D.M. (Neurology) at Goel Hospital, Jalandhar, who advised MRI and after examining the MRI reports, detected the disease as ‘metastatic tumor’ and blamed the Opposite Parties Nos. 1 to 5 for wrong treatment and advised for immediate admission to a proper hospital. On 04.09.2017, the patient was admitted in ICU, Oncology at DMC & Hospital, Ludhiana. The doctors and nurses informed that the patient was suffering from severe disease (cancer) and the chances of survival was very less. On 26.09.2017, the patient died, due to metastasis. Being aggrieved by the negligence resulting in death of the patient and the unprofessional conduct of the Opposite Parties, the Complainants filed a Complaint before the State Commission and sought a compensation to the tune of Rs. 25,00,000/- alongwith Rs. 8,06,300/- for expense incurred with 12% interest and Rs. 2,00,000/- as litigation cost.

5.       The Opposite Parties rejected the averments made in the Complaint and prayed for dismissal of the Complaint.

6.       The Opposite Party No. 1, in his reply, denied the allegations levelled against him and submitted that he advised various investigations to the patient and after examining the reports, prescribed certain medicines as per the symptoms. However, further diagnosis could not take place as the patient never came for a follow-up. He also submitted that he never referred the patient to Joshi Hospital.    

7.       The Opposite Parties Nos. 2 and 3, in their reply, stated that the patient being a sports girl, having knee joint pain along with swelling was a natural corollary of wear and tear of a sports person. Various tests were advised and based on the X-rays, tests and investigations report of the patient, on 16.05.2017, the patient was diagnosed with reactive arthiritis for which the required treatment was given. After one month of treatment the pain was reported to be lesser (40%) with reduced swelling in knees. On 08.07.2017, when the patient complained of increased pain, the Opposite Party No. 3 advised serum calcium and vitamin D-3 tests, but, the patient never visited again for further treatment. They denied of being negligent during the treatment and asserted to have treated the patient in utmost professional manner and prayed for dismissal of the Complaint.

8.       In his reply, the Opposite Party No. 4 submitted that the patient visited him on 10.07.2017, when after going through her past history with Opposite Parties Nos. 1 to 3, found that the actual disease could not be detected. On clinical diagnosis, he advised to conduct Anti CCP test and prescribed medicines for addressing vitamin-D deficiency and stopped the low dose of steroid until accurate diagnosis was done. As the anti CCP test report was negative, the Opposite Party No. 4 referred the patient to the Opposite Party No. 5 - Rheumatologist / Immunologist. It was contended that he treated the patient with utmost care and caution with no medical negligence on his part during the treatment.

9.       The Opposite Party No. 5 filed his reply, wherein, it was stated that as the investigations of the patient showed the symptoms of arthritis, therefore, she was treated for the same and was diagnosed as ‘steroid dependent inflammatory oligoarthritis along with lower back pain’. In his further investigations, since no immature cells were found, the Opposite Party No. 5 further referred the patient for Neurology consultation due to symptoms of eye bulging out. It was stated that due to lot of atypical features and differential diagnosis, it was a difficult case and eventually the patient was diagnosed with ‘Ewing Sarcoma’ and the delay in diagnosis is natural, due to its easily confusing clinical features with other conditions and its rarity also. He further submitted that he followed the standard medical protocols while treating the patient with no medical negligence on his part.

10.     The Opposite Parties Nos. 6 to 10 are the Insurance Companies, insuring the Opposite Parties Nos. 1, 2, 4 and 5 respectively for sum assured ranging from Rs. 5 lakh to 15 lakh, adopting the defence of their insured and seeking dismissal of the Complaint.

11.     The State Commission, after hearing the arguments of the learned Counsel for both sides and after perusal of the record, gave a detailed Order finding medical negligence on the part of the Opposite Parties Nos. 2 to 5 / Appellants and awarded a total compensation for an amount of Rs. 33 lakh. The Opposite Parties Nos. 2 and 3 were directed to pay Rs. 20 lakh jointly and severally, the Opposite Party No. 4 was directed to pay Rs. 5 lakh and the Opposite Party No. 5 was directed to pay Rs. 8 lakh as compensation alongwith interest @ 7% per annum from the date of filing of the Complaint till realization on account of deficiency in service and medical negligence.

12.     Being aggrieved, the Opposite Parties Nos. 2 to 5 filed this Appeal being F.A. No. 417 of 2021 and the Oriental Insurance Co. Ltd. filed F.A. No. 9122 of 2021.

13.     Heard the learned counsel for the parties, perused the entire material on record. 

14.     The learned counsel for Appellants submitted that there is no negligence on the part of the Appellant doctors as they have shown utmost sincerity in attending to the patient Jia Sharma. The patient was first taken to Dr. Kulwant Singh (not an Appellant), who was consulted on 12.05.2017 and who prescribed certain tests, X-Ray, Blood Test, RA Factor Test etc.. Thereafter, the patient was taken to the Appellant No. 1 and 2 for treatment, who first saw the patient on 16.05.2017 and diagnosed as “Reactive Arthritis Post Viral?” and advised two powerful pain killers, one corticosteroid, bone health supplement and D3 supplement. He continued the treatment till 08.07.2017 increasing the dosage of pain killer and introducing methotrexate which is an immune supplement. The Appellants Nos. 1 and 2 diagnosed reactive arthritis as the cause for the pain and prescribed certain drugs for arthritis and certain vitamins especially vitamin-D supplements. On not getting relief, the patient was taken to another doctor - Dr. Rajesh Saggar, who treated her from 10.07.2017 to 11.08.2017, who continued with the diagnosis of Juvenile arthritis and prescribed certain tests. He continued with D3 supplement, anti-inflammatory drug but deleted steroids. On not getting again any relief under Dr. Saggar’s treatment, Appellant No. 3 referred her to an Immunologist to Dr. Parshant Aggarwal, under whose treatment, the patient was from 12.08.2017 to 02.09.2017. All these Appellant Doctors continued with the treatment for Arthritis. Finally, the patient was taken to Dr. Sandeep Goyal, who asked for an MRI to be conducted, whereafter the problem of cancer (Ewing Sarcoma) was detected and the patient was admitted in Dayanand Medical College Hospital on 04.09.2017, who unfortunately died on 26.09.2017.

15.     The  learned Counsel further argued that the four Appellants did their best as a normal doctor would do as there were symptoms of Arthritis for which, she was being given treatment. He further submitted that Ewing Sarcoma is a cancer, which normally does not exist and develops very quickly. He cited certain text book extracts and case laws in support of his arguments. The State Commission did not take any expert opinion. He cited the Order of the Hon’ble Supreme Court in Kusum Sharma vs. Batra Hospital, 1 (2010) CPJ 29 (SC). The Complainant cannot allege at a belated stage why MRI was not done which could have enabled detection of cancer much earlier and could have perhaps saved the patient. He submitted that not ordering MRI by the Appellants, in the first instance, cannot be considered to be a negligence on the part of these Appellant doctors as they were proceeding systematically with obvious remedies which are available in ordinary circumstances.

16.     The learned Counsel for the Respondents Nos. 1 and 2, the parents of the deceased patient, submitted that there was a clear case of medical negligence by the Appellant Doctors as they have, without application of mind, continued with the administration of certain strong drugs and steroids meant for treatment of arthritis even when there was no sign of relief and even when the situation was getting worse. It was only Dr. Sandeep Goyal, who, on 03.09.2017 ordered for an MRI, which showed the prevalence of certain growth called Ewing Sarcoma at an advanced stage in the patient. The delay by the Appellants is not an ordinary delay and not a routine delay and this has caused the life of the patient. She further submitted that there was enough indication including adverse blood tests reports when any prudent doctor in an ordinary situation would have considered a change in approach and a different mode of treatment and as a first step would have ordered investigations beyond limiting the diagnosis to arthritis and including an MRI. Even the tests performed showed worsening of certain parameters. Continuing with the treatment without taking recourse to alternatives is a clear case of medical negligence. Arthritis medicines were given even when the RH factor was negative. For a considerable period of time, under treatment of Appellants Nos. 1 and 2, heavy doses of steroids were continued and it was only much later when the Appellant Nos. 3 reduced the doses of some of the medicines including doing away with the steroid.  

17.     The learned Counsel for the Respondents Nos. 1 and 2 further submitted that MRI should have been done much earlier and steroids should have been given if at all, only for a very short duration as steroids in normal course is not given to children. There were clear indications that symptoms exhibited by the patient was not of arthritis and that Ewing Sarcoma is common among children with such kinds of indications. She, therefore, submitted that the Order of the State Commission be upheld.

18.     After going through the voluminous record and documents filed by both the parties in this Appeal, the question before me is whether the four doctors, being the Appellants in this case, are negligent in proper diagnosis of the disease suffered by the patient. There are any number of Orders of this Commission and the Hon’ble Supreme Court which have given certain yardsticks to decide medical negligence by a doctor. All the four Appellants could not correctly diagnose the disease and went about treating the patient for what they termed as Reactive Arthritis or Juvenile Arthritis. Making a wrong diagnosis at the beginning cannot be treated as a medical negligence per se as there were certain symptoms, which could lead to a certain conclusion by a normal doctor to conclude that the patient was suffering from some kind of Arthritis. It has to be borne in mind that these doctors are Specialists and they cannot be termed to be really normal doctors, but let us presume that they were normal professionals and therefore, coming to such conclusion would be one way of diagnosis and therefore, they cannot be found fault with to start with.

19.     However, the problem arises when this diagnosis and the treatment given thereunder continues for a certain length of time, which cannot be considered reasonable and the persistence of these Appellants to continue with the same line of diagnosis, treatment and drugs and not able to think about why their line of treatment was not yielding the desired result and why the situation of the patient was worsening. All the blood reports indicate that the situation was worsening. The Arthritis report says that the RH factor was negative. The clinical side of the condition of the patient showed worsening of the situation, so much so, that the eyes started bulging out. Going by the prescriptions written by these doctors, the most noticeable thing to note is that the diagnosis made was just a one liner and very cryptic. No history was taken or recorded. The prescriptions have to contain details, symptoms and clinical finding. An Arthritis patient needs to have some symptoms beyond pain in a joint. This was not looked into and recorded. No recording was done to the effect of why the administration of medicine was not giving the desired results.

20.     It is commonplace that before reaching a definitive diagnosis, there are certain tests required to be done. In this case also, certain tests were done. Accordingly, based on initial symptoms, diagnosis of arthritis was made and medicines were prescribed. Going by the drugs prescribed, it is seen that these are very strong pain killers including steroids. What is significant to note is that when the pain was not subsiding, after giving such heavy doses of such medicines beyond a reasonable period of time, alarm bell should have rung in the minds of the doctors and particularly the Appellant No. 1. It is conceded that in one of the consultation prescription there was some reduction in pain recorded but the same gets reversed on the next date of consultation when report of increase in pain was made. This should have been a cause of worry for the Doctor. The most common investigation apart from an X-ray would be conducting an MRI in such a situation. I agree with the contention of the Appellants that MRI cannot be recommended right at the beginning and instead a conventional method of treatment was resorted to, which cannot be faulted. However, in the situation, when the condition of the patient was keeping on deteriorating, these Appellant doctors should have thought of conducting an MRI, particularly of the knee when they also saw that the blood reports were becoming more and more adverse and indicative of the fact that the inflammation was on the increase abnormally instead of being under control, if not, reduced. Therefore, not ordering an MRI after a reasonable time of treatment is, in my opinion, a clear case of deficiency of service and medical negligence on the part of the four Appellants.  Conducting the MRI earlier may not have saved the patient. But it could be a possibility and definitely it would have absolved the Appellants from imputation of not taking due care and from medical negligence.

21.     Eventually, when the MRI was got conducted on recommendation of the 5^th doctor, there were clear signs of cancerous growth, which led the 5^th doctor to ask the patient to be immediately admitted in a regular hospital. The growth of cancer had gone into advanced stage and the patient died in a few days of her admission in the hospital.

22.     I am not convinced by the arguments that the cancer Ewing Sarcoma is not normal to be found in a young person and therefore thinking of the same at the initial stage of problem is not expected of a normal doctor. I disagree with him when in the facts of this case, and the situation worsening, the Appellant doctors could not think of any other possible disease which could be a possibility and for which some other investigation would be necessitated and persisting in the treatment, which was diagnosed on the first date of consultation by the Appellant No. 1. In the circumstances, I do not see any illegality in the Order of the State Commission to interfere with its conclusion of medical negligence on the part of the Appellants.

23.     Having held the Appellants for medical negligence, the next issue to be decided is the appropriate compensation which should be paid by the Appellant Doctors to the Respondents Nos. 1 and 2.  The State Commission has awarded an amount of Rs. 33 lakh to the Complainants and has apportioned Rs. 20 lakhs to be paid by the Appellants Nos. 1 and 2, Rs. 5 lakh by the Appellant No. 3 and Rs. 8 lakh by the Appellant No. 4. It is a fact that the patient spent the maximum time with the Appellants Nos. 1 and 2 and only limited time with the Appellants Nos. 3 and 4. The State Commission has awarded Rs. 20 lakhs, considering that there was ample opportunity of rectification of diagnosis and ordering of other investigations including that of MRI by the Appellants Nos. 1 and 2. I consider Rs. 20 lakh to be a lesser amount and in my opinion, this amount should be enhanced to Rs. 25 lakhs to be paid by the Appellant No. 1 under whose treatment the patient spent the maximum time. Since the Appellant No. 2 was only a junior to Appellant No. 1 and I do not consider it appropriate to hold him responsible for any medical negligence as he was only assisting Appellant No. 1 and therefore, I absolve Appellant No. 2 from medical negligence. The balance amount of Rs. 8 lakh is apportioned equally between the two other Appellants namely Appellants - 3 and 4.

24.     The State Commission Order is very detailed and has incorporated the arguments of both sides and given its findings, which cannot be faulted. It has held the Appellants medically negligent.  To the extent of its Order against the Appellants, I see no illegality in the Order. However, in so far as the Insurance Company is concerned, it has given certain Orders for payments, which after hearing the arguments of the learned Counsel for the Insurance Company, I am of the considered view that there is no privity of contract between the Respondents Nos. 1 and 2 and the Insurance Company and that no specific Complaint was made out against the Insurance Company by the Complainants/ Respondents Nos. 1 and 2. Therefore, the Order in respect of the Insurance Company is set aside.

25.     In view of the aforesaid discussion, the Appeal filed by the Appellants in F.A. No. 417/2021 is dismissed and the Order of the State Commission is partly upheld, modifying it to the extent that the medical negligence / deficiency of service is confirmed on the part of Appellants Nos. 1, 3 and 4. Appellant No. 1 shall pay an amount of Rs. 25 lakhs, while Appellants Nos. 3 and 4 shall pay Rs. 8 lakh (Rs. 4 lakh each) to the Respondents Nos. 1 and 2 within six weeks of this Order alongwith an interest @ 6% per annum from the date of filing of the Complaint till realisation. Failure to pay within six weeks would result in enhancement in the interest rate, which would become 9% per annum for the same period. Rs. 5,000/- shall be paid by each of the three Appellants towards cost of litigation.

No other amount is payable.

In so far as Appeal No. 912/2021 filed by the Insurance Company is concerned, the same is allowed and no amount is payable by it to the Respondents Nos. 1 and 2.