KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAD, THIRUVANANTHAPURAM
OP.4/20024
JUDGMENT DATED:5..2..2011
PRESENT
JUSTICE SRI.K.R.UDAYABHANU : PRESIDENT
SRI.M.K.ABDULLA SONA : MEMBER
Smt.K.Vijayakumari, : APPELLANT
W/o Saseendrakumar,
Sasi Nivas, Anamangad.P.O.,
Malappuram District.
(By Adv.R.S.Kalkura)
Vs.
1. M/s Ramadas Clinic and Nursing Home, :RESPONDENTS
Post Box No.1, Hospital Road,
Perinthalmanna.
2. Dr.Leela,
-do-do-
3. Dr.R.N.D.Sreedhar,
-do-do-
4. Dr.Vishalakshi, ENT Surgeon,
Post Box No.1, Hospital Road,
Perinthalmanna.
(By Adv.M.K.George)
JUDGMENT
JUSTICE SRI.K.R.UDAYABHANU : PRESIDENT
The complainant has alleged negligence on the part of opposite parties 3 to 4 doctors of 1st opposite party hospital in not making proper diagnosis of the illness sufficiently earlier which has allegedly resulted in permanent sufferings.
2. The case of the complainant who is the housewife aged 41 years is that on 3.10.02 she consulted 2nd opposite party attached to the 1st opposite party hospital with respect to the swelling on the right side of neck. After certain investigations she was informed there is a chronic inflammation on the right tonsillar region with limph node enlargement. She prescribed certain medicines and advised to consult the 3rd opposite party on 6.10.02 who is an expert in ENT from Madurai and he is a visiting doctor of the 1st opposite party hospital. She consulted the 3rd opposite party on 6.10.02 who advised endoscopies and biopsy. After conducting endoscopy the 3rd opposite party advised that there is no necessity to conduct biopsy and prescribed medicines. He told that she was having tonsillitis on the right side and that it is quite normal. On 13.10.02 there was review and the 3rd opposite party advised to continue medicines and to come for review on 27.10.02. On that day it was told that the swelling was healing and it will be completely cured within a short time. On 10.11.2002 also she consulted 3rd opposite party and was told that everything is normal and was asked to continue certain medicines till July 2003. In July 2003 she developed swelling on the left side of neck also. On 29.7.03 she consulted 4th opposite party ENT Specialist of the 1st opposite party hospital. On examination she was told it is a simple tonsillitis and prescribed medicines for 5 days. Her husband expressed doubts as to whether it is cancerous as he happened to see a TV programme. But the 4th opposite party totally ruled it out. On 29.7.03 4th opposite party while examining it was found there was decaying to the wisdom tooth on both sides of lower jaw and was asked to consult a Dental Surgeon. On the same day she consulted Dr.Arifa Usman of Fathima Dental Clinic, Perinthalmanna. On 31.7.03 and 3.8.03 both wisdom teeth were removed. While removing the 2nd teeth the dentist expressed doubt regarding formation of cancer tonsil and advised for an expert opinion from Amala Cancer Institute. On 4.8.03 she again consulted the 4th opposite party but she completely ruled out the possibility suggested by Dr.Arifa Usman and prescribed medicines and asked to continue the same. On 10.8.03 also the petitioner consulted 4th opposite party who prescribed medicines for another 10 days but within a month the swelling was aggrevated. She went to Sri Ramakrishna Institute of Oncology and Research at Coimbatore on 12.9.03. After the required investigations it was found that petitioner is suffering from squamous Cell Carcinoma and was in a acute stage. It was found that all the systems were found damaged for want of proper diagnosis at the appropriate time. She was told that the disease would have developed atleast more than one year back and it was failure to detect in time that it reached such a serious stage. She underwent radiation for 33 days and also 2 major surgeries for the above disease. The doctors of the above Sri Ramakrishna Institute of Oncology and Research was of opinion that if the disease had been detected by the opposite parties in its primary stage and the petitioner taken proper treatment the petitioner would have got complete cure. It is alleged that the opposite parties have committed gross professional negligence. Petitioner at present is not in a position to take any solid food or to speak and she is being fed through pipe. The petitioner is aged only 41 years and has got 2 minor children. She is having severe pain. She has claimed altogether a sum of Rs.20,50,000/- as compensation.
3. The opposite parties have filed joint version totally denying the allegations. It is submitted that she consulted 2nd opposite party as alleged and that the doctor made a provisional diagnosis of tonsillitis and directed to consult the expert. The expert 3rd opposite party noted the presence of a mobile lymph node below right angle of mandible. There was also inflammation of right tonsil with bifid oedematous uvula and ulceration on the right tonsil. After conducting endoscopy it was found that she is having only acute tonsillitis and prescribed medicines. Biopsy was not needed. On 13.10.2002 a diagnostic laryngoscopy was done and the throat was found normal. On review on 27.10.02 the swelling was found decreased considerably. On 10.11.02 there was mild ulceration in the uvula and vitamin supplements were prescribed. The patient reviewed only 6 months later on 29.7.03 and was seen by the 4th opposite party ENT Surgeon for swelling on the left side in the tonsil. It was a case of tonsillitis. There was bad wisdom teeth with caries on both sides of the jaw. Since the caries teeth could produce inflammation in the surrounding area the patient was advised to have removal of the wisdom teeth after control of inflammation by consulting a dentist. The allegation that the husband of the complainant expressed doubt as to formation of cancerous cells etc. is false. It is also stated that the statement that Dr. Arifa Usman expressed doubt regarding formation of cancer tonsil etc is false. The suggestion that the opinion of Dr. Arifa Usman was conveyed to the 4th opposite party is also false. There was no findings to suggest that the patient was having cancer. The patient had showed relief of symptoms after taking medicines. The case that there was no sign of healing after a month is false. It is not possible to accurately pinpoint the time when a malignant process of carcinoma started. Carcinoma is a disease which can escape detection at its early stage when the presentation is with non-specific symptoms which can be easily mistaken for other conditions. The opposite party doctors had given due care and attention to the petitioner’s disease and proper investigations were done. The complaints of the petitioner related at first to right tonsil and the clinical examination was only suggestive of tonsillitis. There was good response to treatment. At the time when she consulted the 4th opposite party with complaints to left tonsil there were no complaints regarding the right tonsil. It is pertinent to note that after 10.11.02 there were no symptoms and the fact that the patient had not reported for 8 months after 10.11.02 till 29.7.03 showed that the problem related to right tonsil had cleared at that time. On 29.7.03 the 4th opposite party did a detailed examination and noted inflammation in the tonsillar region on the left side and found that the same was also due to tonsillitis tonsillitis being the commonest case of inflammation related to tonsillar region. The wisdom teeth were also advised to be removed as the pressure of dental caries can be a potential cause for inflammation in the surrounding areas. The petitioner showed improvement in symptoms. It is pointed out that that carcinoma of the tonsil or pharyms is considered when there is non healing inflammation or ulceration in the tonsil and surrounding tissue. It is clinically considered when the symptoms of the patient do not show expected improvement. After usual line of treatment the inflammation of the right tonsil had subsided with treatment. This was showing steady and good response to treatment. There was no evidence of persistence of the inflammation related to the right tonsil to consider the possibility of carcinoma. There was also no hardness or indurations at the affected side to considered such possibility. It is after a significant period of time that there was appearance of symptoms on the left tonsil. After 10.11.02 the patient had not reported for 8 months till 29.7.03 and at that time the right tonsil was perfectly normal. There was good response to the treatment to the inflammation of the left tonsil also. It is thereafter a month later that she visited Sri Ramakrishna Institute of Oncology diagnosis of carcinoma is considered when the symptoms persist in the same site for a long period of time and shows no response to treatment or features such as hardness or induration at the site or persistant non healing ulceration at the site are noted. There was none of these signs in the petitioner. It is quite normal for any person to develop tonsillitis affecting the other tonsil after sometime. There was nothing wrong on the part of 4th opposite party in diagnosing tonsillitis on the fresh onset of inflammation in the hitherto unaffected left tonsil. The rest of the allegations are totally denied. The case that she could not take solid food or to speak and that she is being fed through pipe is denied.
4. The evidence adduced consisted of the testimony of PWs 1 to 3, DW1; Exts.A1 to A11 and X1.
5. PW1 is the husband of the complainant. PWs 2 and 3 are the doctors of Sri Ramakrishna Institute of Oncology. DW1 is 4th opposite party, ENT Surgeon. Ext.A1 is the results of blood and urine tests done at the instance of 1st opposite party. Ext.A2 is OP ticket dated 3.10.02 wherein the reference of 3rd opposite party ENT Consultant is seen noted. Ext.A3 is OP card with respect to the consultation before the 3rd opposite party wherein endoscopy/biopsy are noted and medicines prescribed and the diagnosis is also noted. Ext.A4 is the OP card dated 10.11.02 mentioned right tonsil is normal and mild laceration in uvula and the vitamins are seen prescribed. Ext.A5 is the card of Ramadas Clinic and Nursing Home, opposite party 2 in number and the prescription dated 29.7.03 and 10..8..03. Ext.A6 is the biopsy report dated 16.9.03. The inflammation noted therein is squamous cell carcinoma – moderately differentiated grade. Ext.A7 is the certificate from Sri Ramakrishna Institute of Oncology and Research dated 9.10.03 mentioning that the complainant is on palliative radiation from 18.9.03. Ext.A8 is the patient opening card of Sri Ramakrishna Institute of Oncology wherein it is mentioned that the treatment started from 18.9.03 and completed on 31.10.03. The daily treatment undergone are also noted therein. Ext.A9 is the discharge summary of Sri Ramakrishna Institute of Oncology and Research. Surgery done ie left modified neck dissection on 8.12.03 under GA through temporary tracheostomy and right radical neck dissection on 19.12.03 under GA through temporary tracheostomy are noted. Two biopsies also done are mentioned. Ext.A10 is another discharge summary wherein the date of admission is noted as 19.1.04 and discharge as 28.1.04 and it has been advised to continue antibiotics. She was admitted for the two times for supportive care given it is noted. Ext.A11 is the prescription of Kottackal Aryavaidyasala. Ext.X1 is the case sheet of Sri Ramakrishna Institute of Oncology and Research.
6. PW1 the husband of the complainant has reiterated the averments in the complaint. It is mentioned that the complainant is at present undergoing ayurvedic treatment at Kottakal Aryavaidyasala for the last 2 years. It is stated that she is not in a position to take solid food and she is not in a position to speak. It is stated that she has undergone 33 appointments of radiotheraphy at Sri Ramakrishna Institute of Oncology and Research.
7. PW2 is the Director and Head of the Department of Oncology at Sri Ramakrishna Institute of Oncology and Research, Coimbatore. He is having 20 years of experience and is having MD. Diploma in Medical Radiotheraphy, DNB, DM degrees. He has proved Ext.A7 certificate issued by him and stated that her ailment was in a very advanced stage and that she was given radiation. He has stated that early symptoms of the disease varied. As to the question as to what would be the inference if a swelling develops on the right side he has answered that it depends on the types of swelling and that a benign swelling is harmless and that even if swelling appears on and off it need not be cancerous. If the swelling remains, enlarges and produces pain, the doctor should be alert. He has also stated that it is difficult to detect the primary symptoms of cancer. He has answered in the affirmative to the suggestion that cancer can appear suddenly and aggrevate.
8. PW3 is the Surgical Oncologist at Sri Ramakrishna Institute of Oncology and Research, Coimbatore who has proved Ext.X1 case sheet. It was he who conducted surgeries on the petitioner. He has mentioned that the surgery was done subsequent to radiation. He attended the patient after radiation and for removing the lymph nodes to which the cancer had spread. As to how long it would take for cancer to develop to the stage in which the petitioner he has stated that it varied from individual to individual.
9. DW1 is the 4th opposite party, ENT Surgeon. She is having MBBS and DLO and 19 years of experience. She has stated that the complainant had consulted her for less than six weeks. She has stated that the complainant has undergoing OP treatment and hence no case sheet has been maintained. In the proof affidavit she has reiterated the case set up in the version filed.
10. We find that PWs 2 and 3 the expert doctors of Sri Ramakrishna Institute of Oncology and Research has not deposed anything in support the case set up by the complainant. PW2 the Director and Head of department of Oncology has only stated that symptoms varied from individual to individual and that only if swelling remains, enlarges and produces pain that cancer can be suspected. He has also agreed to the suggestion that cancer can appear suddenly and aggrevate. He has also stated that it is difficult to detect primary symptoms of cancer. The complainant has stated that it was Dr.Arifa Usman, Dental Surgeon who suggested expert consultation as she suspected cancer on 29.7.03 while removing the decayed wisdom tooth. The opposite parties have disputed the case of the complainant that Dr.Arifa Usman had suspected the above illness. The prescription or the treatment records from the clinic of Dr.Arifa Usman were not produced. Further as per the sequence of evients the first occurrence of swelling on the right side was on 3.10.02 and the last consultation with the 3rd opposite party expert ENT consultant was on 10.11.02. As pointed out it is on 29.7.03 ie after 8 months that she developed swelling on the left side and underwent treatment with the opposite party doctor. She approached Sri Ramakrishna Institute of Oncology on 12.9.03. Hence there is no evidence of persistent inflammation from 3.10.02 onwards and upto 12.9.03. There is no expert evidence or literature produced to indicate that the inflammation of the tonsillitis is an indication of the primary stage of cancer. The expert examined at the instance of the complainant itself has not supported the case set up by the complainant as noted above. PW2 the undisputed expert in the field has stated that it is difficult to detect the primary symptoms of cancer. The complainant was not examined. There is no objective evidence adduced as to the present condition of the complainant. We find that the complainant has failed to substantiate the contention that it was on account of the negligence on the part of the opposite party doctors that the primary stage of the illness was not detected. In the circumstances we find that the complainant has failed to substantiate the allegations made in the complaint. In the result the complaint is dismissed.
JUSTICE K.R.UDAYABHANU : PRESIDENT
M.K.ABDULLA SONA : MEMBER
Ps
APPENDIX
Witness for the Complainant
PW1 Saseendrakumar.K, husband of the complainant
PW2 Dr.Gohun, Director and Head of the Department of Oncology at Sri Ramakrishna Institute of Oncology and Research, Coimbatore.
PW3 Dr.K.Karthikesh, the Surgical Oncologist at Sri Ramakrishna Institute of Oncology and Research, Coimbatore
Witness for the Opposite Party
DW1 Dr. Visalakshi, ENT Surgeon
Exts. for Complainant
A1 The results of blood and urine tests from Haridas Clinical Laboratory dtd. 3.10.02
A2 OP ticket from Ramdas Clinic and Nursing Home dtd. 3.10.02
A3 OP card from Ramdas Clinic and Nursing Home dtd.6.10.02
A4 OP card from Ramdas Clinic and Nursing Home dated 10.11.02
A5 The card of Ramadas Clinic and Nursing Home, 2 in number and the prescription dated 29.7.03 and 10..8..03.
A6 The biopsy report dated 16.9.03.
A7 The certificate from Sri Ramakrishna Institute of Oncology and Research dated 9.10.03
A8 The patient opening card of Sri Ramakrishna Institute of Oncology and Research
A9 discharge summary of Sri Ramakrishna Institute of Oncology and Research.
A10 Discharge summary
A11 the prescription of Kottackal Aryavaidyasala .
X1 The case sheet of Sri Ramakrishna Institute of Oncology and Research.
JUSTICE K.R.UDAYABHANU : PRESIDENT
M.K.ABDULLA SONA : MEMBER
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