PER DR. B.C. GUPTA, MEMBER

          These two appeals have been filed under section 19, read with section 21(a)(ii) of the Consumer Protection Act, 1986 against the impugned order dated 27.08.2013, passed by the UT Chandigarh State Consumer Disputes Redressal Commission (hereinafter referred to as ‘the State Commission’) in Consumer Complaint No. 16/2013, filed by Jaswinder Kumar (now deceased) and being represented by his legal representatives in a case of alleged medical negligence on the part of the opposite parties (OPs).

2.       This single order shall dispose of both these appeals and a copy of the same be placed on each file.

3.       The facts of the case are that the complainant Jaswinder Kumar (now deceased), aged about 35 – 36 years, had been suffering from swelling and pain in his right foot and that he decided to take treatment from the Opposite Party (OP-1), the Post Graduate Institute of Medical Education and Research (hereinafter referred to as PGI) at Chandigarh in the first week of June 2011.  He was admitted at the PGI on 13.06.2011 vide CR No. A2721652, on the advice of OP-2 Dr. R.K. Sharma, Professor and Head, Department of Plastic Surgery.   On 14.06.2011, the complainant was subjected to Digital Subtraction Angiography (DSA) at the Department of Radio–diagnosis.  As per the report given by Dr. Vivek Gupta, he was found suffering from “Intermediately High Flow AVM of Dorsum of Right Foot c Feeders from ATA Predominantly.’  The term AVM stands for Arteria Venous Malfunction.  It is stated that an operation was conducted upon the complainant on the right foot on 27.06.2011 under the guidance of OP-2 Dr. R.K. Sharma and other doctors, and that some excision was made on his right foot. 

4.       The complainant, thereafter, visited the OP-1, PGI on 06.07.2011, 13.07.2011 and 21.07.2011 with complaints of mild pain and swelling, when he was advised some ointment, normal dressing, crepe bandage and foot elevation etc.  The complainant visited the PGI again on 03.08.2011 and 17.08.2011 with complaints of pain, swelling, inflammation and bleeding, when he was advised that the scar was well healed, but certain medicines were prescribed to him.  However, after a few days, he developed lesion again on his right foot, alongwith unbearable pain and he visited the PGI on 14.09.2011, but he was advised to use compression garments only.  As per the complainant, his problem of swelling, unbearable pain, inflammation and bleeding went on increasing, following which he consulted the OP-2 Dr. R.K. Sharma, on 05.10.2011, when the doctors decided to perform second surgery PDOA after about 6 months and the date for the same was also fixed as 04.04.2012.  The complainant has attached copies of all prescriptions in support of the version given by him in his complaint.

5.       The complainant has further stated that he suspected some serious problem in his right foot and went to another hospital, called the Fortis Hospital on 05.11.2011 vide UHD No. 328881.  The said hospital found huge mass lesion on the foot, which was badly affected, and they immediately advised biopsy upon the patient to rule out cancerous lesion.  The biopsy was conducted at the said hospital on 07.11.2011.  As per the result of the said biopsy, his condition was diagnosed as “Right Foot Synovial Sarcoma”, i.e., highly malignant tumour, which required urgent intervention.  The doctors at that hospital decided to carry out knee amputation, as the tumour had already spread above the knee due to delay in proper and required clinical diagnosis of the tumour at the OP-1 Hospital.  The amputation was done on 17.11.2011 on urgent basis and the patient was discharged on 22.11.2011.  It is alleged in the consumer complaint that the complainant became 100% disabled due to the medical negligence of the doctors at the OP-1 Hospital.  The complainant filed the consumer complaint in question, seeking directions to the OPs to compensate him with a sum of ₹10 lakhs for mental harassment, physical agony and loss of future earnings.  He also demanded another ₹10 lakhs as damages on account of permanent disability, shortening of life expectancy etc., ₹10 lakhs on account of medical expenses and another ₹10 lakhs on account of loss of enjoyment of life, besides ₹50,000/- as litigation expenses.

6.       The complaint was resisted by the OPs by filing a joint written version in which they stated that the patient complained of progressively increasing swelling on the dorsum of right foot for the last four years.  He underwent MRI and other tests at the DMC Ludhiana and was referred to the PGI with a diagnosis of low flow AVM.  The patient was seen at the plastic surgery OPD of the PGI on 20.05.2009 and was dated for admission on 14.10.2009 for surgery, but he did not turn-up on the appointed date and time.  Thereafter, the patient attended the OPD of the PGI on 08.06.2011.  The DSA was performed upon him on 13.06.2011.  The tests confirmed the Lesion to be an intermediate high flow AVM with feeders from the posterior tibial artery.  On 27.06.2011, excision of the lesion was done and the wound was closed primarily and the patient was discharged on 29.06.2011.

7.       In their reply, the OPs confirmed about the later visits of the patient and the advice given to him from time to time as recorded on the prescriptions.  It has been stated that the patient was being regularly followed up at the PGI in the Plastic Surgery, OPD and was seen by four Senior Residents and one Consultant.  He was being treated for AVM as recommended by radiological investigation and there was no record available in the OPD card to suggest development of malignancy in the patient. 

8.  During the pendency of the consumer complaint, Jaswinder Kumar died on 02.04.2013 and his legal representatives, namely, Mamta Rani wife and Monika Verma daughter and Darshna Devi mother, were substituted on record.

9.       The State Commission after considering the averments made by the parties concluded that medical negligence on the part of the OPs had been proved and hence, they directed the OP-1&2 to pay ₹10 lakhs to the complainants as compensation and litigation cost of ₹30,000/-.  It was also stated that if the said payment was not made within 45 days from the receipt of the certified copy of the order, the said amount will carry interest @9% p.a. from the date of filing the complaint till realisation.  Being aggrieved against the said order, the OPs challenged the same by way of this first appeal, FA No. 703/2013.  The legal heirs of the complainant also challenged the same by way of first appeal, FA No. 737/2013, seeking enhancement of the compensation awarded by the State Commission. 

10.     During hearing, the Ld. Counsel for the appellants/OPs argued that the basic issue involved in the present case was whether a wrong diagnosis had been made at the PGI and if it was so, whether such wrong diagnosis amounted to any medical negligence on the part of the OPs.  The Ld. Counsel stated that the patient came to the PGI first in the year 2009.  He was also being treated at the DMC Ludhiana, which had done the same diagnosis that he had been suffering from AVM.  The Ld. Counsel referred to the complaint in question, in which the complainant has alleged that the doctors at the PGI failed to diagnose malignant tumour.  However, the failure to diagnose does not constitute medical negligence on any account.  The PGI had acted as per the standard protocol, governing the medical condition of the patient.  Referring to an article entitled, “Management of Arteriovenous Malformations” by Arin K. Greene, MD, MMSc, Darren B. Orbach, MD, PhD of the Children’s Hospital Boston, Harvard Medical School, Boston USA and taken from the website, plasticsurgery.theclinics.com, the Ld. Counsel stated that ‘Biopsy of an AVM could be complicated by bleeding and reactive expansion of the lesion.’  The ld. Counsel argued that the non-conduct of biopsy does not lead to a spread of malignancy.  It is made out, therefore, that if biopsy was not conducted at the PGI, it did not lead to the worsening of the condition of the patient.  In any case, the end result by way of amputation of the leg would have been the same, even if the biopsy were conducted at the PGI.  The Ld. Counsel argued that it was a settled proposition that if two lines of treatment were available, the doctors could have followed any of the two alternatives and in the process, they could not be charged with medical negligence in any manner.  Referring to the judgment of the Hon’ble Supreme Court of India in “Kusum Sharma vs. Batra Hospital” [(2010) 3 SCC 480]”, as quoted in the order of the State Commission, the Ld. Counsel stated that, “in the realm of diagnosis and treatment, there was scope for genuine difference of opinion and one professional doctor was clearly not negligent, merely because his conclusion differed from that of another professional doctor.”

11.     Ld. Counsel further argued that the conclusion arrived at by the State Commission that it was obligatory upon the doctors at the PGI to have done the biopsy, was erroneous.  The order under appeal was, therefore, not in accordance with law.

12.     Ld. Counsel for the complainants on the other hand, argued that there was no document to prove that the complainant remained under treatment at the DMC, Ludhiana.  Ld. Counsel argued that the main issue to be considered in the present matter was, whether reasonable care was exercised by the doctors at the PGI in the treatment of the patient.  The OPs had failed to explain as to why biopsy could not be done on the patient.  Even after the excision had been done as early as 27.06.2011, the doctors at the OP hospital did not find it necessary to send the material for biopsy as per the standard practice.  The Ld. Counsel argued that had the patient not gone to the Fortis Hospital for further treatment, and continued with the OPs, he would have died much earlier, looking at his medical condition.  The State commission had, therefore, correctly brought out that there had been negligence on the part of the OPs in treating the patient.  The order passed by the State Commission was, therefore, in accordance with law, rather much higher compensation should have been awarded to them.   Ld. Counsel stated that the OPs had committed a grave error by saying that it was a case of benign lesion.  In support of his arguments, he has drawn attention to the orders passed by this Commission in “Kurien Joseph (Dr.) & Anr. vs. Govindarajan” [2013 (2) CPJ (NC) 296], in which it has been stated that if biopsy was not conducted and wrong diagnosis was done, it constitutes medical negligence on the part of the OPs.  Further, in “Ritu Garg vs. Dr. Vineet Sharma & Anr.” [RP No. 2074/2015 decided on 2.12.2015], this Commission held that if the doctor failed to diagnose the disease at initial stage, he was liable for medical negligence as his conduct fell below the level of reasonable care.  In another case, “Nizam Institute of Medical Sciences vs. Prasanth S. Dhananka” [2009 (6) SCC 1], it was held that once the initial burden of proof had been discharged by the complainant by making out a case of  medical negligence, the onus shifted on the hospital to satisfy the court that there was no lack of care etc.  It was also held in the said case that after the body had been opened, a small piece of mass should be sent for histopathological examination.  In the said case, the Hon’ble Supreme Court decided to enhance the compensation awarded to the complainant. 

13.     The Ld. Counsel further argued that the State Commission was right in concluding that if the Doctors at the Fortis Hospital could subject the patient to biopsy at the initial stage itself, the Doctors at the PGI could also have done the same, where he remained under treatment and follow-up for about 5 months.  The Ld. Counsel has drawn attention to an affidavit filed by Dr. Ravul Jindal of the Fortis Hospital, in which he stated that after the Excision, biopsy should have been done with the material taken out.  The OPs have not been able to rebut the said contention in any manner.

14.     Ld. Counsel stated that the medical negligence was writ large in this case, because the OPs had failed to perform the duty cast upon them in not performing the biopsy upon the patient, that resulted in huge damage to him and ultimately, he lost his life.

15.     I have examined the entire material on record and given a thoughtful consideration to the arguments advanced before me. 

16.     The subject of medical negligence has been discussed in a number of landmark judgments given by the Hon’ble Supreme Court of India and this Commission from time to time.  In the impugned order, the State Commission has relied upon a judgement given by the Hon’ble Apex Court in “Kusum Sharma vs. Batra Hospital” [supra]”, in which, the basic principles in dealing with cases of medical negligence have been enunciated by the Apex Court.  Some of these principles are as follows:-

“I. Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.

II.  …………….

III. The medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires.

IV. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.

V. In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.

…………….”

17.     In “Jacob Mathew versus State of Punjab & Anr.” [(2005) 6 SCC 1], the Hon’ble Apex Court, while dealing with negligence as a tort, referred to the Law of Torts, Ratanlal & Dhirajlal (24^th Edn. 2002, edited by Justice G.P. Singh), in which, it is noted as follows:-

“Actionable negligence consists in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill, by which neglect the plaintiff has suffered injury to his person or property…..the definition involves three constituents of negligence : (1) A legal duty to exercise due care on the part of the party complained of towards the party complaining the former’s conduct within the scope of the duty; (2) breach of the said duty; and (3) consequential damage.  Cause of action for negligence arises only when damage occurs; for, damage is a necessary ingredient of this tort.”

18.     The well-known ‘Bolam Test’ as emerged from the case, Bolam vs. Frien Hospital Management Committee [(1957) 1 WLR 582], has been followed in a number of judgments by the courts in India and abroad.  During proceedings in that case, Hon’ble Justice Mc Nair stated in his address to the Jury that a Doctor is not guilty, if he has acted in accordance with a practice adopted by a responsible body of medical men, skilled in that particular art. 

19.     The Ld. Counsel for the PGI has drawn attention to the order passed by the Hon’ble Apex Court in “V. Kishan Rao vs. Nikhil Super Speciality Hospital” [(2010) 5 SCC 513], in which the above principle has been referred, stating that, “in realm of diagnosis and treatment, there is ample scope for genuine difference of opinion and a Doctor is not negligent, merely because his conclusion differs from that of other professional man.”   The Ld. Counsel for the PGI has also drawn attention to an article with the caption, “Proving Causation in a Claim for Loss of Chance in Contract” by Lee Yeow Wee David [(2005) 17 SAcLJ 426], in which it has been stated as follows:-

“61.   Thus, even in the realm of medical negligence cases, it can be seen that the law exacts the requirement that the plaintiff show that the injury was caused by the negligent conduct of the defendant doctors.  If the injury had been proved, on a balance of probabilities, to have been caused prior to the misdiagnosis, the fact that the misdiagnosis could have lowered the chances of a full recovery was insufficient to cross the bar for causation.  In short, if the trial judge found that on a balance of probabilities, the plaintiff had been suffering the injury prior to the misdiagnosis, then causation would not be established. ”

20.     Based on the principles laid down in a number of judgments / articles, some of which have been reproduced above, it is to be determined, whether there has been medical negligence on the part of the treating doctors at the PGI, given the facts and circumstances of the case in hand.  The version given by the complainant, starting with his visit to the PGI in the first week of June 2011 indicates that DSA was conducted on 14.06.2011 upon the patient at the Department of Radio Diagnosis, PGI and as per their report, he was suffering from, “Intermediately High Flow AVM on Dorsum of Right Foot c Feeders from ATA Predominantly.  It is an admitted fact that excision was carried out on 27.06.2011 under the guidance and supervision of the OP-2 doctor, Dr. R.K. Sharma.  It is also clear that the sample taken during the excision was not sent for biopsy/histological examination.  Later on, the patient admittedly visited the PGI for check-up on a number of occasions, i.e., 06.7.2011, 13.07.2011, 21.07.2011, 03.08.2011, 17.08.2011 etc.  These visits are confirmed from the record of prescriptions made at the PGI.  The complainant stated that his problem went on increasing day by day and he had swelling, unbearable pain, inflammation and bleeding that was out of control.  The Doctors at the PGI prescribed some medicines every time and advised him to use compression bandage.  On 05.10.2011, it has been recorded that the patient complained of intermittent bleeding and it was tentatively planned to have the de-bulking done after a period of six months, for which the date of 04.04.2012 was also fixed.  On the other hand, when the patient decided to go to the Fortis Hospital on 5.11.2011, he was immediately subjected to Biopsy and was diagnosed as a case of cancer that was at advanced stage.  A perusal of these facts brings out clearly that the Doctors at the Plastic Surgery department of the PGI could have exercised more care and caution to look at the problems faced by the patient and have it evaluated, may be in consultation with their sister departments.  An institution like the PGI is a prestigious institute, known for its reputation in the field of medical care, and it was expected from them that they could have been more vigilant in ensuring that proper diagnosis was made on the patient. 

21.     In the affidavit filed by the Dr. Ravul Jindal of the Fortis Hospital, it has been mentioned that after the diagnosis of AVM at the PGI, the patient regularly went to the said hospital for next 4 – 5 months for follow-up, but the real cause of disease was not diagnosed there, nor any report of biopsy / histology is found in the treatment record.  It is also mentioned in the said affidavit that although the mass lesion was excised at the said hospital in June 2011, there was no histology / biopsy report.  The State Commission have rightly observed that the failure to get the biopsy done indicates that the OPs did not exercise reasonable degree of skill and knowledge which was expected in such cases.  The State Commission concluded rightly, relying upon the judgments made in Kusum Sharma vs. Batra Hospital” (supra) and “Jacob Mathew versus State of Punjab & Anr.” (supra), that the OPs were negligent in the performance of their duties, vis-à-vis, the complainant. 

22.     The main thrust of the argument taken by the Ld. Counsel for the PGI says that in the realm of diagnosis and treatment, there could be a genuine difference of opinion, relying upon the principles in the Bolam case and other cases.  The Ld. Counsel argued that a doctor is not negligent, merely because his conclusion differs from that of other professional men.  The facts in the present case, however, do not represent that it was a case of difference of opinion on the part of the medical professionals.  As indicated above, after the initial diagnosis and carrying out of the procedure in June 2011, the patient visited them a number of times and kept on complaining that his problem was getting aggravated.  The OPs could have carried out a deeper probe in the matter to go into the root cause of the problem, rather than treating it as a routine matter.  As per the principles enunciated in the “Jacob Mathew versus State of Punjab & Anr.” (supra), therefore, it is clear that the duty to exercise due care was not performed and that resulted in consequential damage to the patient.  Moreover, it can be safely presumed that had the sample taken during the excision on 27.06.2011 been sent for biopsy, proper diagnosis of the disease could have been made at that very time and a better or more effective line of treatment for the patient could have been evolved.

23.     Based on the foregoing discussion, it is held that there is no illegality, irregularity or error in the conclusion arrived at by the State Commission in the impugned order that medical negligence on the part of the OPs stands proved, based on the facts and circumstances of the present case.  In so far as the grant of compensation is concerned, the State Commission held that the OPs are jointly and severally liable to pay a sum of ₹10 lakh as compensation alongwith ₹30,000/- as cost of litigation.  Although, the complainants have made a plea for the enhancement of the compensation, it is felt that the State Commission have granted a reasonable compensation to the complainants, based on the facts of the case and there is no ground to make any change in the same.  It is observed, however, that during his visits to the PGI, the complainant was attended to by many doctors at the Department of Plastic Surgery under the overall control and supervision of the OP-2 who is the Head of the Department.  The PGI shall carry out an internal probe in the matter to determine the extent of liability on the individual doctors, who were found negligent in the discharge of their duties.  The extent of compensation payable by the individual doctors, if any, shall be determined by them from the outcome of that probe/inquiry.  In case, it is concluded that no individual doctor was found responsible for the lapse, the entire amount of compensation in terms of this order shall be payable by the OP-1 PGI itself as a vicarious liability.

24.       From the foregoing discussion, it is concluded that there is no merit in both these appeals and these are ordered to be dismissed and the impugned order passed by the State Commission upheld.  There shall be no order as to costs.