KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.

APPEAL  NO. 415/2006

                            JUDGMENT DATED:26-09-2011

PRESENT:

SHRI. M.V. VISWANATHAN                    : JUDICIAL  MEMBER

Dr. Sunil Kumar,

Indira Dandhi Co-operative Hospital,   : APPELLANT

Thiruvangad, Tellicherry.

(By Adv:Sri.M.C.Suresh)

            Vs.

1.         P.Mohanan, S/o Gopalan,

Pransanth House,

Kallayi Theru,

Thiruvangad, Tellicherry-670 103.

(R1 by Adv:Sri.Antony Lijo.M.X)

                                                                        : RESPONDENTS

2.         The Manager,

Indira Dandhi Co-operative Hospital,  

Thiruvangad, Tellicherry.

3.         M/s Sudharma Laboratory,

Ratturaickal Junction,

Shornur Road, Thrissur.

(R3 by Adv:Sri.S.Reghukumar)                            

                                         JUDGMENT

SHRI.M.V. VISWANATHAN : JUDICIAL MEMBER

Appellant is the 1^st opposite party and respondents 1 to 3 are the complainant and opposite parties 2 and 3 respectively in OP.468/2000 on the file of CDRF, Kannur.  The complaint in the aforesaid consumer complaint was filed alleging medical negligence and deficiency of service on the part of the opposite parties in treating and subjecting the complainant’s son Deepak for Lymphnode Biopsy at the 2^nd opposite party, Indira Gandhi Co-operative Hospital, Thalassery.  It was alleged that the appellant/1^st opposite party, Dr.Sunil Kumar.K was negligent in diagnosing the disease of the complainant’s son and due to his negligent and careless diagnosis, the complainant and his wife suffered mental agony and financial loss.  It was also alleged that the 3^rd opposite party, M/s Sudharma Laboratory, Thrissur was negligent in submitting Lymphnode biopsy report.  Thus, the complainant claimed a sum of Rs.1.57,380/- as compensation under various heads.

2.      The 1^st opposite party (appellant) entered appearance and filed written version denying the alleged deficiency of service.  He contended that the complainant’s son Deepak was referred to him by the pediatrician Dr.Sukumaran for doing Lymphnode biopsy and that the 1^st opposite party done the said surgical procedure with due care and caution and the Lymphnode was forwarded to the 3^rd opposite party for biopsy examination.  On getting the biopsy result, the patient was referred to medical college hospital for further management.  He denied the case of the complainant that he told the complainant that the minor patient is suffering from leukemia.  It was also contended that the patient was referred to medical college hospital for further management, on the basis of the biopsy result obtained from the 3^rd opposite party, M/s Sudharma Laboratory, Thrissur.  It was further contended that if any compensation is to be obtained, the liability is only on the 3^rd opposite party.  Hence the 1^st opposite party prayed for dismissal of the complaint filed against him.

3.      The 2^nd opposite party/Indira Gandhi Co-operative Hospital, Thalassery filed written version stating that the 1^st opposite party is not a doctor employed by the 2^nd opposite party hospital and that the 1^st opposite party is practising as a consultant surgeon by using the facilities available in 2^nd opposite party hospital.  The 2^nd opposite party also denied the alleged deficiency of service and submitted that the complainant’s son Deepak was treated with due care and caution at 2^nd opposite party hospital.  Thus, 2^nd opposite party also prayed for dismissal of the complaint filed against them.

4.      Third opposite party filed written version denying the alleged deficiency of service.  They admitted that the Lymphnode biopsy of the complainant’s son was done at 3^rd opposite party laboratory and submitted the report on 29.11.99.  3^rd opposite party only suggested the findings based on the examination of the Lymphnode biopsy and also directed to conduct further investigations for confirmation of the result.  3^rd opposite party denied the alleged negligence in doing the biopsy examination and submitting the report.  Thus, 3^rd opposite party prayed for dismissal of the complaint filed against them.

5.      Before the Forum below, the complainant was examined as PW1.  Exts.A1 to A11 documents were also marked on the side of the complainant.  The discharge summary issued from Kasthurba Hospital, Manipal was marked as Ext.X1.  1^st opposite party was examined as DW1 and the Pathologist of the 3^rd opposite party laboratory was examined as DW2.  Ext.B1 copy of the histo-pathology report issued from Sudharma Laboratory, Thrissur was also marked on the side of the opposite parties.

 6.     On an appreciation of the evidence on record, the Forum below passed the impugned order dated:27^th February 2006 allowing the complaint in part and directing opposite parties 1 and 2 to pay a sum of Rs.50,000/- as compensation to the complainant.  3^rd opposite party was exonerated from the liability.  Opposite parties 1 and 2 are made jointly and severally liable to pay the aforesaid compensation of Rs.50,000/-.  Aggrieved by the aforesaid order, the present appeal is preferred by 1^st opposite party doctor, Sunil Kumar.K.

7.      The points that arise for consideration in the present appeal are:-

1.                            Whether 1^st respondent/complainant has succeeded in establishing the alleged medical negligence and deficiency of service on the part of the appellant/1^st opposite party Dr.Sunil Kumar in treating and diagnosing the disease of the complainant’s minor son Deepak?

2.                            Whether the appellant/1^st opposite party can be held medically negligent in making diagnosis of the disease of the 1^st respondent’s/complainant’s son Deepak?

3.                            Is there any legally sustainable ground to interfere with the impugned order passed by the Forum below in OP.468/00, as far as the appellant/1^st opposite party doctor Sunil Kumar.K is concerned?

8.      Points 1 to 3:-

These points are inter-related and inter-connected.  This commission is pleased to deal with these points together.   For the sake of convenience, the parties to this appeal are referred to according to their rank and status before the Forum below in OP.468/2000.

9.      The main complaint of the complainant is that the 1^st opposite party Dr.Sunil Kumar was negligent and deficient in rendering service to the complainant’s minor son Deepak, as 1^st opposite party Dr.Sunil Kumar negligently diagnosed the disease of the complainant’s son as Leukemia.  On the other hand, 1^st opposite party denied the alleged medical negligence in treating and diagnosing the disease of the complainant’s minor son Deepak.  1^st opposite party has also got a case that he referred the complainant’s son for further management to a better medical centre, based on the biopsy report issued by the 3^rd opposite party, M/s Sudharma Laboratory, Thrissur.  Ext.B1 is copy of the histo-pathology report (biopsy report) dated:29.11.99 issued from M/s Sudharma Laboratory, Thrissur.  The said report was issued on examination of the lymphnode which was forwarded to 3^rd opposite party laboratory for biopsy report.  In Ext.B1 histo-pathology report dated:29.11.99 it is reported under the heading impression:-

“Histology is suggestive of malignant lymphoma/leukaemic infiltration”.

It is also remarked under the heading remarks:-“ tumour marker studies may please be done along with blood and bone marrow examination.”

10.    3^rd opposite party/M/s Sudharma Laboratory in their written version disputed the case of 1^st opposite party that the diagnosis was made based on Ext.B1 histo-pathology report issued by Sudharma Laboratory.  The Pathologist, Dr.V.P. Gopinathan attached to Sudharma Laboratory, Thrissur was examined before the Forum below as DW2.  He also disputed the case of 1^st opposite party that the diagnosis was done by 1^st opposite party based on Ext.B1 biopsy report.  3^rd opposite party has also challenged the case of 1^st opposite party Dr.Sunil Kumar that the minor patient, Deepak was referred to Kasthurba Medical College Hospital, based on B1 histo-pathology report.  The aforesaid stand taken by 3^rd opposite party would get support from the circumstances and evidence available on record.

11.    Admittedly, Ext.B1 histo-pathology report is dated:29.11.99.  But the patient, Deepak was referred to Kasturba Medical College Hospital, Manipal on 27.11.99.  It is admitted by 1^st opposite party (appellant) that the complainant’s minor son Deepak was referred to Kasthurba Medical College Hospital, Manipal by 1^st opposite party himself.  The case of 1^st opposite party that the patient was referred to him by Paediatrician, Dr.Sunilkumar for taking lymphnode for biopsy can be accepted.  But the case of 1^st opposite party that he never treated the patient, Deepak and that the patient Deepak was admitted in 2^nd opposite party hospital by the Paeditrician, Dr.Sukumaran cannot be believed or accepted.  The available materials on record would belie the aforesaid case of 1^st opposite party.  Ext.A1 is the prescription dated:24.11.99 issued by 1^st opposite party Dr.Sunilkumar.K.  Ext.A1 prescription was issued on the letter head of the 1^st opposite party.  A1 document would show that the patient was referred by Dr.Sukumaran for lymphnode biopsy and the biopsy has been forwarded to Sudharma Laboratory.  A1 prescription would also show that on 25.11.99, the patient was seen by 1^st opposite party Dr.Sunilkumar and medicines were prescribed by him.

12.    2^nd opposite party, Indira Gandhi Co-operative Hospital, Thalassery is represented by its Manager.  2^nd opposite party hospital filed written version admitting the case of the complainant that the complainant’s minor son, Deepak was admitted in that hospital as instructed by 1^st opposite party Dr.Sunilkumar.  It would also show that patient Deepak was treated by 1^st opposite party in 2^nd opposite party hospital as inpatient from 25.11.99 to 27.11.99 and that the patient was referred to medical college hospital on 27.11.99.  The aforesaid version filed by the 2^nd opposite party hospital would make it clear that the patient Deepak was referred to Medical College Hospital by 1^st opposite party Dr. Sunilkumar.

13.    1^st opposite party has developed a case that he contacted 3^rd opposite party over telephone and got the histo-pathology report through phone.  The aforesaid case that he contacted 3^rd opposite party laboratory over phone is a subsequent development.  No such case is pleaded in his written version or in his proof affidavit.  But, only during his cross-examination it is deposed that he got the contents of the biopsy report from the laboratory through phone.  It is true that DW2, the Pathologist, Dr.Gopinathan has admitted that in emergency cases the treating doctors used to contact the laboratory over phone.  But DW2 does not remember whether the 1^st opposite party had contacted the Pathologist or the laboratory over phone.  At the same time DW2 has categorically deposed that to get the biopsy result 4 days time is required.  In other words, the result of the biopsy (histo-pathology report) will be available only after 4 days of acceptance of the biopsy.  In the present case on hand, the lymphnode for biopsy was taken on 24.11..99 and the same was forwarded to Thrissur.  So, in the ordinary course, the Lymphnode biopsy would have reached the laboratory on 25.11.99 and the result of the biopsy examination was available on 28.11.99 or 29.11.99.  At any rate, the result ought not have been available on 27.11.99.  The available circumstances and the evidence on record would suggest that 1^st opposite party Dr.Sunilkumar referred the patient without obtaining the result of the Lymphnode biopsy examination.

14.    Ext.A2 is the discharge summary issued from the 2^nd opposite party, Indira Gandhi Co-operative Hospital, Thalassery.  Ext.A2 discharge summary was issued on 27.11.99 at the time discharge of the patient Deepak from that hospital.  In Ext.A2 discharge summary, the name of the patient is shown as Deepak aged 8 years male with I.P.No.1528.  The unit where the patient was admitted is shown as surgery/pediatrics.  The date of admission of the patient is shown as 25.11.99 and date of discharge as 27.11.99.  The diagnosis is shown as “? Lymphoma”.  In A2 discharge summary, the details of the physical findings and investigation and treatment given are also incorporated.  It would also show that lymphnode biopsy done and result is awaited.  The issuance of A2 discharge summary is not disputed by 2^nd opposite party, Indira Gandhi Co-operative Hospital, Thalassery.

15.    1^st opposite party (appellant) has developed a case that Ext.A2 discharge summary was not issued by him and that the same is not in his hand writing.  It is the case of the appellant/1^st opposite party Dr.Sunilkumar that somebody else has issued A2 discharge summary with the aforesaid diagnosis.  It is pertinent to note at this juncture, that the appellant/1^st opposite party or 2^nd opposite party, Indira Gandhi Co-operative Hospital, Thalassery has no case that A2 discharge summary was not issued from 2^nd opposite party hospital to the complainant at the time of discharge of the minor patient, Deepak.  On the other hand, opposite parties 1 and 2 admitted the issuance of A2 discharge summary from 2^nd opposite party hospital.  It is established that the complainant’s son Deepak was admitted in 2^nd opposite party hospital by 1^st opposite party Dr.Sunilkumar and that the said patient was treated by 1^st opposite party from 25.11.99 to 27.11.99.  Thus, it was incumbent upon 1^st opposite party Dr.Sunilkumar to issue discharge summary to the patient at the time of discharge from hospital.  1^st opposite party being the treating doctor was bound to see that a proper discharge summary is issued to the patient.  It is further to be noted that the patient was referred to a higher centre for better management and investigation and that in such a situation issuance of discharge summary with all the relevant details is a must.  Even though the discharge summary was not written in the hand writing of 1^st opposite party treating doctor, it can only be inferred that the details and the entries in the discharge summary were incorporated with the consent and under the direction of the treating doctor.  1^st opposite party being the treating doctor who referred the patient to Kasthurba Medical College Hospital, Manipal for further management cannot be absolved from the liability and responsibility, if any wrong entry is made in the discharge summary.  So, it can only be held that the entry regarding diagnosis in A2 discharge summary was made at the instance and under the direction of 1^st opposite party Dr.Sunilkumar.  1^st opposite party was fully aware of the contents of the discharge summary.  It is not fair or reasonable on the part of 1^st opposite party to disown the entries in A2 discharge summary.  Thus, it can very safely be concluded that the diagnosis of lymphoma with the query (?) in A2 discharge summary was entered at the instance and under the direction of 1^st opposite party Dr.Sunilkumar.

16.    The appellant/1^st opposite party has got a case that he issued a reference letter dated:26.11.99 addressing the Peadiatrician, Calicut Medical College/KMC Manipal, Karnataka.  The issuance of such a reference letter would make it abundantly clear that the complainant’s minor son Deepak was under the treatment of 1^st opposite party Dr.Sunilkumar and the said patient was referred to Medical College Hospital by the 1^st opposite party himself.

17.    The appellant/Dr.Sunilkumar has produced copy of the aforesaid reference letter dated:26.11.99. But there is nothing on record to show issuance of such a reference letter to the complainant.  The complainant was examined as PW1.  Nothing was put to PW1 in the cross-examination about the contents of the said reference letter.  It is the case of the appellant/1^st opposite party that he never made diagnosis of the disease of the complainant’s son Deepak.  Appellant (1^st opposite party) has relied on copy of this reference letter wherein it is only stated that Generalized Lymphadenopathy and Hepato Splenomegaly.   He also relied on the entry in the said copy of the letter that ‘lymphnode biopsy done, result is awaited’ (Sudharma Laboratory).  But no such letter (original) is forthcoming from the side of 1^st opposite party or 2^nd opposite party.  No evidence has been let in from the side of the 1^st opposite party that no such diagnosis of leukemia or lymphoma was done by 1^st opposite party.  No reliance can be placed on the said copy of the letter produced by the appellant (1^st opposite party).  On the other hand, Ext.A2 discharge summary would make it abundantly clear that such a diagnosis of lymphoma with a query was made by 1^st opposite party Dr.Sunilkumar.

18.    The complainant as PW1 has categorically deposed about the diagnosis of leukemia made by 1^st opposite party Dr.Sunilkumar and the disclosure of the aforesaid diagnosis of disease by the 1^st opposite party Dr.Sunilkumar.K.  The available circumstances and evidence on record would support the aforesaid oral testimony of PW1.  There is no reason or ground to doubt the testimony of PW1 that such a diagnosis was made by 1^st opposite party and the said diagnosis of the disease was disclosed to the parents of the patient.  The Forum below can be justified in relying on the aforesaid testimony of PW1.

19.    1^st opposite party Dr.Sunilkumar.K made a wrong diagnosis can be ascertained from Ext.X1 discharge summary dated:20.12.99 issued from Kasthurba Medical College Hospital, Manipal.  The aforesaid discharge summary was issued with respect to the treatment of the complainant’s son, Deepak in that hospital as an inpatient.  It would also make it clear that the complainant’s son Deepak was suffering from Salmonellosis.  It would in turn make it clear that the complainant’s son Deepak was not suffering from Lymphoma or any malignancy of lymph/leukaemic infiltration.  Thus, it can be concluded that the diagnosis of lymphoma or leukemia was a wrong diagnosis and the said diagnosis was made negligently.  Even if the case of 1^st opposite party that the diagnosis of lymphoma was made on the basis of Ext.B1 histo-pathology report is taken as true and correct, then also 1^st opposite party Dr.Sunilkumar was not expected to make such a diagnosis and to disclose the same to the parents of the minor patient.  The 1^st opposite party was negligent in giving such a wrong diagnosis and disclosing the same to the parents.  It is pertinent to note at this juncture that as per Ext.B1 histo-pathology report 3^rd opposite party requested the concerned treating doctor to have tumour marker studies and also to carry out blood and bone marrow examinations.   The aforesaid tests or examinations were recommended by the 3^rd opposite party to confirm the diagnosis.  It is to be noted that as per Ext.B1 histo-pathology report is to the effect that histology is suggestive of malignant lymphoma/leukaemic infiltration.  But instead of getting the confirmatory result, the 1^st opposite party doctor came to the conclusion that the patient is suffering from lymphoma/leukemia and the aforesaid wrong and negligent diagnosis was disclosed to the parents. 

20.    The aforesaid negligent diagnosis caused much mental and physical strain and tension on the complainant and his wife being the parents of the minor patient, Deepak.  The mental agony suffered by the complainant and his wife could not be explained in so many words.  The aforesaid wrong and negligent diagnosis made by 1^st opposite party Dr.Sunilkumar can be considered as medical negligence and deficiency of service.

21.    Ext.X1(A5) discharge summary dated:20.12.99 issued from Kasthurba Medical College Hospital, Manipal would make it abundantly clear that the minor patient Deepak was suffering from Salmanellosis and he was treated as an inpatient in that hospital and the patient was completely recovered from the said illness.  It is to be noted that Salmanellosis is nothing but infection with organisms of the Genus Salmonella (Stedman’s Medical Dictionary 23^rd Edition).  It was too much on the part of the appellant/1^st opposite party,  Dr.Sunilkumar in diagnosing such a minor disease as a very serious and fatal disease of lymphoma or leukemia.

‘leukemia’ is described by Stedman’s Medical Dioctionary as follows:-  Progressive, proliferation of abnormal leukocytes found in hemopoietic tissues, other organs, and usually in the blood in increased numbers.  Leukemia is classified by the dominant cell type, and by duration from onset to death.  This occurs in acute leukemia within a few months in most cases, and is associated with symptoms that suggest acute infection, with severe anemia, hemorrhages and slight enlargement of lymph notes or the spleen.  The duration of chronic leukemia exceeds one year, with a gradual onset of symptoms of anemia or marked enlargement of spleen, liver or lymphnodes.”

It is true that lymphoma is not so much fatal as that of leukemia.  As per Stedman’s Medical Dictionary lymphoma is characterized as a “General term that includes various abnormally proliferative, probably neoplastic diseases of the lymphoid tissues, eg. Lymphosarcoma, leukosarcoma, lymphocytic leukemia, Hodgkin’s disease, and so on; ordinarily termed malignant lymphoma.”

22.    The aforesaid description would make it clear that lymphoma is also a fatal condition as far as a patient is concerned.  So, a wrong and negligent diagnosis can be considered as medical negligence on the part of the treating doctor.  At any rate, the Forum below can be justified in finding 1^st opposite party guilty of medical negligence and deficiency of service.

23.    The learned counsel for the appellant/1^st opposite party argued for the position that no expert evidence is forthcoming from the side of the complainant to prove the alleged medical negligence and deficiency of service on the part of the appellant.  It is true that the complainant has not adduced any oral expert evidence in support of is case.  But the medical records available on record would make it crystal clear that the appellant/1^st opposite party doctor was medically negligent in making a wrong diagnosis of the disease of the complainant’s minor son, Deepak.  The materials available on record are sufficient enough to establish the medical negligence and deficiency of service on the part of the appellant/1^st opposite party.  The case of the appellant that the Forum below passed the impugned order based on conjectures, surmises and assumptions cannot be upheld.  An appreciation of the factual situation and evidence on record would make it clear that the findings made by the Forum below are based on the evidence on record and that the Forum below appreciated the evidence on record in its correct perspective.  The proper analysis of the facts, circumstances and evidence on record would suggest that the Forum below has rightly relied on Ext.A2 discharge card for fastening the liability on 1^st opposite party Dr.Sunilkumar.

24.    The appellant has also got a case that the wrong histo-pathology report (Ext.B1) was issued by the 3^rd opposite party, M/s Sudharma Laboratory and that the Forum below was pleased to exonerate 3^rd opposite party who issued Ext.B1 histo-pathology report containing  wrong analysis report.  It is to be noted that 3rd opposite party recommended for further investigations for confirming the aforesaid report.  The appellant/1^st opposite party doctor was not expected to act upon Ext.B1 report suggesting a diagnosis of lymphoma or leukemia. B1 report suggested for other confirmatory tests/examinations.  Appellant/1^st opposite party before conducting such confirmatory tests made a diagnosis negligently.  It is further to be noted that the wrong and negligent diagnosis was made by the appellant/1^st opposite party without obtaining Ext.B1 histo-pathology report.  The Forum below can be justified to some extend in exonerating the 3^rd opposite party, M/s Sudharma Laboratory from the liability to pay compensation to the complainant.  But at any rate, 1^st opposite party Dr.Sunilkumar who made a wrong diagnosis in a negligent manner causing mental agony and financial loss to the complainant cannot be absolved from the liability.  So, the order passed by the Forum below finding the opposite parties 1 and 2 deficient in rendering service to the complainant is to be upheld.

25.    Considering the medical negligence and deficiency of service on the part of the appellant/1^st opposite party, the compensation of Rs.50,000/- awarded by the Forum below making opposite parties 1 and 2 jointly and severally liable can be treated as just and reasonable compensation.  On consideration of the mental agony and hardships suffered by the complainant and his wife it can be concluded that the Forum below has taken a very lenient view in favour of the opposite parties 1 and 2. This commission has no hesitation to confirm the impugned order passed by the Forum below in OP.468/00.  These points are answered accordingly.

In the result the appeal is dismissed.  The impugned order dated:27.2.06 of the CDRF, Kannur in OP.468/00 is confirmed. The parties to this appeal are directed to suffer their respective costs.

M.V. VISWANATHAN  : JUDICIAL  MEMBER

VL.