SMT. RAVI SUSHA: PRESIDENT
The complaint has been filed U/s 12 of Consumer Protection Act 1986, for getting compensation of Rs.5,00,000/- from opposite party together with cost of the proceedings of this case, alleging medical negligence and deficiency in service on the part of opposite party No.2 in reporting FNAC of Right posterior cervical Lymph- Node of complainant.
In brief complainant consulted Dr. E Raghavan MBBS, DLO, ENT Specialist for chest pain on 29/12/2016 who referred her to OP No.(2) for FNAC of RIGHT. Posterior cervical lymph-Node and the examination conducted on 02/01/2017 by No.(1) of revealed an impression “Necrot-zing, Granulomotous inflammation consistent with tuberculosis”. Dr.Raghavan then referred complaint on 02/01/2017 to Renjina Dilnath, MBBS, DTCD, and Specialist in asthma, allergy and TB for treatment of FNAC-Tuberculosis with the report of the Noble Diagnostic Centre. She prescribed medicines for 5 days. After taking medicines for three days complainant developed body weakness and was unable to even get up from her bed and walk. She became bed-ridden and was then referred to Govt. General Hospital, Thalassery for further management of the case. In the Government Hospital various Laboratory tests were conducted but there was no let up in the condition of complainant. Then she got admitted in the Medial college Hospital, Kozhikode for expert management on 11/02/2017. As the cause of her deteriorating condition could not be ascertained after all the medical clinical examination the Doctor from Medical college Calicut called for the slide of FNAC Lymphonode of complainant for the purpose of further evaluation. On review of the slide labeled CY-3/17(Noble diagnostic centre Kannur ) on 22/02/2017 by department of Pathology Directorate of Medical Education Kozhikode no symptoms of TB was seen as per the report dated 02/01/2017 of OP No.(1). Complainant spending 20 days in Kozhikode Medical college is still undergoing treatment. It is alleged that on the reference of Dr. Raghavan to OP’s Diagnostic center for FNAC on 02/01/2017 OP have conducted the test negligently and carelessly and gave a wrong impression of the test, which has caused undue hardships and pain to the complainant . She has to be subjected to wrong Medical treatment which caused her dangerously ill-condition. Complainant sent Advocate notices to both the parties. But the OP neither sent any reply nor paid the compensation. Hence this complaint.
On the basis of said report Dr.Raghavan referred her to Dr. Rajina Dilnath a specialist in Asthma, allergy and TB for further treatment. That Dr. Rajina Dilnath prescribed medicine for 5 days and when consumed the said medicines for two days the complainant had severe weakness in vomiting and she was taken to Government Hospital, Thalassery. From there she was subjected to different lab test but no prognosis was reported. So she was taken to Kozhikode Medical college and from there she was found not tuberculosis. The complainant further alleges that she consumed unwanted medicines for TB, her blood count reached 3% so that enough number of bottles of blood transfused and the treatment were given to her on the basis of the wrong report. So she claims Rs.5 lakhs towards compensation.
After receiving notice OP entered appearance and filed written version. It is contended that the complaint is not maintainable either in law or on facts. There is no negligence or deficiency in service on the part of the 2nd OP as alleged by the complainant. The complainant is not entitled to get any relief as prayed for in the complaint. It is submitted that the complainant approached Noble Diagnostic center as per reference of Dr. E Raghavan for Fine Needle Aspiration Cytology (FNAC) of cervical lymph node on 02/01/2017. The 2nd OP working as pathologist in the 1st OP diagnostic centre had done FNAC of cervical lymph node with reasonable care and caution. As per FNAC study of the aspirated fluid it was seen few epitheliod cell granulomas in a background of reactive lymphoid cells and few small foci of necrosis. From the study it appeared that the features were consistent with that is similar to those seen in tuberculosis. Accordingly the report was issued setting the impression as necrotizing granulimtous inflammation consistent with tuberculoses. It could be reasonably derived from the report itself that tuberculosis was not the definite diagnosis and clinical correlation or ancillary studies required for conclusive diagnosis. OP further stated that she was not started on ATT by Dr. Raghavan. After getting the FNAC report she was referred to Dr. Rejina Dilnath on 02/02/2017 and Dr. Rejina starts Levocet tabled IHSx5 days for the itching, she is having following treatment by Dr. E Raghavan. Also was given Dermocol plus to be applied externally in the areas of itching. Dr.Rejina refers her to Govt. Hospital Thalassery for ATT. The Govt. Hospital prescription states she is having generalized itching prior to starting ATT. Document No.8 is the histopathology report of lymph mode biopsy which states there is no evidence of TB. It is to be inferred that at Kozhikode Medical College also they had suspicion of TB in the FNAC slide but since not conclusive requested for a biopsy which is one of the usual procedure to confirm in case of doubt. It is submitted that tuberculosis was not the definitive diagnosis as per FNAC done by the second OP. Moreover it is hardly believed that medicine for tuberculosis was given for 5 days as it is not consistent with accepted regimen of anti-tuberculosis treatment to start medicines for few days. OP further stated that in many cases necrotizing granulomatous lymphadenitis is considered as tubercular lymphadenitis for clinical trial of ATT. As per accepted treatment protocol followed in India sometimes trial ATT is started for pyrexia of unknown origin as well with enlarged cervical lymphoids when differential diagnosis could not be ascertained. In the light of the above stated facts and circumstances the findings of the 2nd OP in the evaluation of FNAC of cervical lymphoid cannot be termed as palpably wrong or made without following professional standards and reasonable diligence. According to OP, it is an admitted fact that the complainant was given medicines for five days shed light on the probability that it was not given as part of anti tubercular treatment. It is seen that Dr. Rejina Dilnath prescribed levocet 5mg HS for 5 days which is an anti histamine given for allergic reactions. Further the statement that the complainant had to take unnecessary medicines for the wrong lab report given by the 2nd OP is ill motivated and hence denied. The FNAC report given by the 2nd OP was not a conclusive report of disease condition rather treatment regiment should have been decided on the basis of supportive clinical findings and further investigations as well. OP contended that the complainant’s case is that she had developed fatigue, continuous vomiting and had been bed ridden after taking medicine prescribed for a duration of 5 days is false and baseless and hence denied. The medicine prescribed for a period of 5 days was not given as part of anti tubercular treatment. According to OP mere finding in FNAC of cervical lymph node that necrotizing glaucomatous inflammation consistent with tuberculosis would not be taken as a conclusive finding to start ATT. The 2nd OP is having qualification of MBBS, MD, DCP with experience of 37 years as a Consultant Pathologist. According to OP, there is no medical negligence or deficiency in service on his part and prayed for the dismissal of complaint.
The evidence adduced consisted of the proof affidavits of the respective sides and Ext.A1 to A13.
Complainants case is that on the reference of Dr. Raghavan to OP’s Diagnostic center for FNAC on 02/01/2017, OP have conducted the test negligently and carelessly and gave a wrong impression of the test, which has caused the patient diagnosed TB Lympdentis and started unnecessary treatment of administering ATT and DOT for Tuberculosis and after 3rd doze medicine, default ATT, the patient started vomiting, developed breathlessness, cough, fever , Hb 3.1, and the general condition of the patient not satisfactory, hence referred the patient from Govt. General Hospital. Thalassery to Calicut Medical College for expert Management. These facts were evident from Ext.A6 summary sheet of the patient from Medical college Hospital, Kozhikode. Ext.A1 is the prescription of Dr. E Raghavan, advise FNAC and referred the complainant to OP No.2 Doctor Salim, Pathologist, Noble Diagnostic centre(OP No.1 here in). Ext.A2 is the ‘Cytology Report dated 2/01/2017. The impression states that “FNAC of Right posterior cervical Lymphnode. Necrotizing Gramulomatous Inflammation consistent with tuberculosis.” Based on Ext.A2 report, it is seen that Dr.Raghavan referred the patient on the same day to Dr. Rajina Dilanath MBBS, DTCD (specialist in Asthma, Allergy and TB. Junior medical consultant, Govt. Hospital Thalassery with a remark FNAC – Tuberculosis. In Ext.A3 the prescription of Dr. Rajina Dilnath, it is noted that 'TB lymphadentis'. Further Ext.A3 reveals that on 02/01/2017 Dr.Rajina given Levocet Tablet for 5 days for itching and allergic. It is further seen that on 11/01/2017, Dr.Rajgina prescribed 1)Teleckast HIS x 3 dayss, 2) dessphyllne 1-0-1X3 day and 3)’Delza 6mg’ 1-0-1X3day+Randac.D-0-1 3day. It can be seen that Defza 6 tablet is given for the treatment of lymphoma. It is to be noted that in Ext.A3 Dr.Rajina remarked TB lymphadonitis and further given Defza 6 tablet, twice daily for 3 days establish the averment of complainant that after taking medicines for 3 days she developed body weakness and was unable to even get up from her bed and walk and was then referred to Govt. General Hospital, Thalassery (where Dr. rajina was working) for further management. Further Ext.A5 the Discharge card issued from Govt. General Hospital Thalassery, show, the patient was admitted at Govt. General Hospital, Thalassery on 09/02/2017 and discharged on the very next day 10/02/2017. Diagnosis, patient diagnosed with TB lyphaclenitis, started as ATT had generalized itching prior to stating ATT. Itching exacerbated foll ATT developed dysphoea, vomiting and cough. ATT stopped ECG showed ischacmic changes, IV stemi (a type of heart attack that usually happens when hearts’s need for oxygen can’t be met) Hb 3.1, Echo-WNL, Further General condition of patient not satisfactory, referred to Calicut Medical college for expert management.
It is further seen that (Ext.A6) on 10/02/2017 itself she was admitted as inpatient at Medical College Hospital, Kozhikode, previous illness noted at there. “she was started DOTS –after 3rd doze started vomiting fatigue, palpitation.
Imp: TB lymphodetis, severe anemic etc. Presenting complaints noted are patient diagnosed to be TB lymphodentis – default ATT, Now developed Breathlessness, cough, Fever. Further in Ext.A6, it is seen that 20 blood transfusion given because of severe anemic Hb3 ->7.9-8. The treated Doctor also noted that following four weeks after started ATT, patient started complaining of progressive dyspnoea which worsened over a period of few weeks. So that patient became unable to perform her routine activities.
Further Ext.A8 the Histopathological report of Directorate of Medical Education. Department of pathology dated 22/02/2017 of the same slide as analyzed in OP clinic slide, reveals “No granuloma seen”.
OPs main contentions in the version are that the 2nd OP as pathologist had done FNAC of cervical lymph node of complainant with reasonable care and caution. From the study it appeared that the features were consistent with that is similar to those seen in tuberculosis. Accordingly the report was issued stating the impression as necrotizing granulomtous inflammation consistent with tuberculosis. OP further contended that the patient was not started on ATT Dr. Rejina also given levocet tablet and Dermocol plus to be applied externally and referred to the Govt. Hospital Thalassery for ATT. OP further submitted that in many cases necrotizing granulomatous lymphadenitis is considered as tubercular lymphadentis for clinical trial of ATT. As per accepted treatment protocol followed in India sometimes trial ATT is started for pysexia of unkknown origin as well with enlarged cervical lymphoids when differential diagnosis could not be ascertained. According to OP, in the light of the above stated facts and circumstances the findings of the second OP in the evaluation of FNAC of cervical lymphoid cannot be termed as palpably wrong or made without following professional standards and reasonably diligence. OP further contended that the complainant had developed fatigue, continuous vomiting and had been bed ridden was not due to the medicine given by Dr. Rajina as part of anti tubercular treatment.
The definite case of OP is that the impression shown in Ext. A2 report the necrotizing granulomotous inflammation consistent with tuberculosis is not definite diagnosis that the patient has tuberculosis.
The learned counsel of OP argued that there are suppression of documents, non-examination of Material witness etc. Further submitted that the oral evidence of the Pw1 is sufficient to prove that the complaint itself is baseless one. According t o OP, complainant should have produced the 1st lab report and also examined Dr. Regina to prove her case and also no doctor/experts from Kozhikode MC is examined. Moreover, OP vehimenty argued that the pathology’ report is not intended to use by common man and it is not conclusive in any circumstances. Further argued that the complaint’s averment that she had to consume a lot of unwanted medicines which deteriorated her health condition is false allegation and further no single piece of evidence is produced to prove the purchase of medicine and she consumed the same.
In the instant case on analyzing the evidence of OP (Dw1), he has deposed that in page No.2, Ext.A2 വിന്റെ date 02/01/2017 ആണ്. ഈ report ന്റെ അടിസ്ഥാനത്തില് Ext.A3 രേഖയില് Dr. Rajina Dilnad diagnosis ആയി TB Lymphadenitis എന്നാണ് രേഖപ്പെടുത്തിയത്. Ext.A4 – 04/01/2017 തീയ്യതിയിലാണ്. ഈ patient ന് ATT തുടങ്ങണമെന്നാണ് കാണിച്ചിരിക്കുന്നത്. Ext.A4 രേഖ ഞാന് നല്കിയ Ext. A2 രേഖയുടെ ബലത്തിലാണ് നല്കിയിരിക്കുന്നത്. Further deposed ഈ patient ന് A DOT ചെയ്തതായി പരാമര്ശിച്ചിട്ടുണ്ട്. ATTയും DOT യും പരസ്പരം ബന്ധപ്പെട്ടതും TB യുമായി ബന്ധപ്പെട്ട ചികിത്സയാണ്. Further DOT യും ATT യും ചെയ്തതിന് ശേഷം രോഗിയുടെ ശരീരാവസ്ഥ മോശമാവുകയും ആരോഗ്യ സ്ഥിതി വഷളാവുകയും ഛര്ദ്ദിയും ക്ഷീണവും അനുഭവപ്പെടുകയും ചെയ്തതായി പരാമര്ശിക്കപ്പെടുന്നുണ്ട്. Ext.A6 ല്? പരാമര്ശിക്കുന്നുണ്ട്. Further in page 3 he has stated that Ext. A2 report നെ ആസ്പദമാക്കിയാണ് Ext. A6 ലെ മൂന്നാമത്തെ പേജില് പറയുന്നത്? ശരിയാണ്. Ext.A6 page No.6 ലെ Govt. General Hospital Thalassery discharge card ല് diagnosis എന്ന കോളത്തില് patient diagnosed TB Lymphadenitis എന്ന് പറയുന്നുണ്ട്. ATT start ചെയ്തതായും പറയുന്നുണ്ട്. Further page 4 Ext.A8 report-ല് no granuloma seen എന്ന് പരാമര്ശിക്കുന്നുണ്ട്? ഉണ്ട്.
From the medical records and from Govt. General Hospital, Thalassery and A3 to Kozhikode (Ext.A6) there was ample, cogent and reliable evidence to establish that the complainant had undergone the treatment for tuberculosis ATT, DOT. Following four weeks after ATT, patient started complaining of progressive dysperea HB 3.1, which worsened over a period of four weeks. So that patient became unable to perform her routine activities. Further revels that she was under treatment as impatient at Govt. General Hospital, Thalassery and at MCH, Kozhikode from 09/02/2017 to 01/03/2017 and further continued treatment in addition to documentary evidence, Dw1 the OP also supported the complainant’s it averment that all the treatment for Tuberculosis were administered on the complainant on the basis of Ext. A2 report (page No.2 of deposition of Dw1).
Hon’ble State Commission in many cases held that in a case where negligence is evident, the principle of res Ips loquitur operates and the complainant does not have to prove anything as the things proves itself. In such a case of it is the OP to prove that he has taken case and done his duty to discharge him from negligence.
The counsel for the OP denied any negligence and any mistake in the Ext. A2 pathology report. The learned counsel argued that it was not the definite diagnosis as per FNAC done by the second OP and stressed upon expert evidence which was not produced by complainant in this case. More over Dr. Rejina had not given anti-tuberculosis treatment to the complainant. Here it is an admitted fact that complainant approached Dr. Raghavan on 02/01/2017 and Ext. A2 Pathology report issued on 02/01/2017 and was referred to Dr. Rejina specialist in Asthma, alleged and TB junior Medical consultant Govt. General Hospital, Thalassery. Further Ext. A4 reveals that the patient was referred to Dermatologist to examine the complaint of Itching. In this referral letter it is stated that this patient is to be started as ATT. Ext.A6 shows she was admitted at Govt. General Hospital, Thalassery on 09/02/2017 dated 10/02/2017 shows that patient diagnosed to be TB lymphadenitis – default ATT. Now developed breathless, cough and fever. These evidence clearly evident that the patient was given ATT which was failed and developed complication. Then OP should have examine Dr.Rejina and other treated doctors to prove this contentions. Ext.A8 is pathology report of MCH Kozhikode done with the same slide as tested by OP No.2 shows no granuloma seen”.
Therefore, entirely of the forgoing discussion we are of considered view that there was a breach of duty of OP No.2 who is pathologist, performed the FNAC report which amounts to deficiency in service. It is a breach of duty. Therefore OP No.2 is liable to compensate the complainant. Ext.A9 and Ext.A10 are the Medical bills and Taxi Bills.
Considering the entire evident and records, and age of the patient 48 years at the incident time, records, we direct opposite party No.2 to pay to pay Rs.2,00,000/- as compensation to the complainant within one month after receiving this order, otherwise it will carry interest @ 9% per annum till its realization. Complainant is at liberty to execute the order as per the provision of Consumer Protection Act 2019.
Exts.
A1-Prescription of Dr. Raghavan dated 29/12/2016
A2-Report dated 02/01/2017 of Noble diagnostic centre
A3-Reference letter dated 02/01/2017
A4-Reference letters to Govt. Hospital Thalassery dated 04/01/2017
A5-Discharge from Govt. Hospital Thalassery dated 10/02/2017
A6-Admission and treatment from MCH Thalassery dated 10/12/2017
A7-Prescription of Doctores at MCH Kozhikode
A8-Pathology report of MCH Kozhikode
A9-Medical bills
A10-Taxi bills
A11-copy of Advocate notice
A12-Acknowledgement card of OP No.1
A13-Acknowledgement card of OP No.2
Pw1-Complainant
Dw1-Dr.P Salim -OPNo.2
Sd/ Sd/ Sd/
PRESIDENT MEMBER MEMBER
Ravi Susha Molykutty Mathew Sajeesh K.P
(mnp)
/Forward by order/
Assistant Registrar
