Kerala

StateCommission

A/13/529

AMRITA INSTITUTE OF MEDICAL SCIENCES AND RESEARCH CENTRE - Complainant(s)

Versus

S VIJAYAN - Opp.Party(s)

G S KALKURA

29 Jun 2015

ORDER

KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION SISUVIHARLANE VAZHUTHACADU THIRUVANANTHAPURAM

APPEAL 529/2013

JUDGMENT DATED :29.06.2015

 

(Appeal filed against the order in CC.No.259/2009 on the file of CDRF, Ernakulam order dated : 26.11.2012)

 

PRESENT

 

SRI.K.CHANDRADAS NADAR     : JUDICIAL MEMBER

SMT.A.RADHA                               : MEMBER

SMT.SANTHAMMA THOMAS      : MEMBER

 

APPELLANTS

 

1. Amrita Institute of Medical Sciences &

Research Centre,

Amrita Lane,

AIMS – Ponekkara.P.O

Kochi – 682 041

Rep.by its Medical Director

Dr.Prem Nair

 

2. Dr.G.Ganapathy Rao, MD,

General Medicine,

Amrita Institute of Medical Sciences

And Research Centre,

AIMS – Ponekkara.P.O

Kochi – 682 041

Ernakulam

 

(By Adv.Sri.G.S.Kalkura & Adv.Sri.Balu.M)

 

 

 

Vs

 

 

RESPONDENTS

 

1. S.Vijayan,

“Vishnu Bhavan”, Mamala.P.O

Thiruvaniyoor village,

Kunnathunadu Taluk,

Ernakulam – 682 305

 

2. The National Insurance Co.Ltd,

Tripunithura Branch

 

(R1 by Adv.Sri.S.Radhakrishnan)

(R2 by Adv.Sri.M.Nizamudeen)

 

JUDGMENT

 

SRI.K.CHANDRADAS NADAR     : JUDICIAL MEMBER

          Appellants were opposite parties 1 & 2 in CC.No.259/2009 in the CDRF, Ernakulam. First respondent was the complainant. He had been suffering from spiking fever, particularly in the evenings and pain in various joints since 2004. He had undergone treatment for the complaints in various hospitals in and around Ernakulam but without substantial relief. It was alleged in the complaint that he approached the second opposite party a physician in the first opposite party hospital on 14.05.2007 and the second opposite party straight away commenced anti tuberculosis treatment on 16.05.2007 without subjecting the complainant to clinical examination and investigations . In the opinion of the second opposite party, the complainant was suffering from disseminated tuberculosis with tuberculosis pericarditis. Treatment continued for nearly two months but the patient was not subjected to any investigation to confirm the diagnosed illness. Eventually, the condition of the complainant worsened and therefore he was shifted to the Lakeshore Hospital, Maradu. The doctors attached to the said hospital confirmed that the complainant was suffering from stills disease. The treatment at the first opposite party hospital had caused drug induced hepatitis to the complainant. Hence the complainant alleging negligence in diagnosing and treating the complainant approached the consumer forum seeking compensation for the deficiency in service committed by the opposite parties.

          2.      In their joint version the appellants admitted that the complainant had seen the second opposite party on 14.05.2007. They contended that clinical examination of the complainant and different tests were conducted by the doctors of the opp.party hospital. CT of chest and abdomen was done on 16.05.2007. The investigations showed enlarged lymph nodes in the retroperitoneum, mild ascites and minimal bilateral pleural effusion suggestive of tuberculosis. Pathological tests conducted indicated infection of tuberculosis. Bone marro examination and mantoux test proved negative. Anti tuberculosis drugs were started on 16.05.2007. The patient tolerated the drugs in the initial stage and his liver function was improving as indicated by the review on 04.06.2007. He developed drug induced hepatitis after completing anti-tuberculosis treatment for two months. Hence the treatment was discontinued. He was examined again on 29.06.2007 and clinical tests showed that the patient was improving. Dr.Akash Thomas Oommen saw the patient on 13.07.2007 in the outpatient department. The complainant was admitted as inpatient on the same day for jaundice. He showed features of early hepatic encephalopothy. Hence anti tuberculosis treatment was discontinued. The opposite parties have taken all proper and reasonable care in providing, treatment to the complainant. The opposite parties started the treatment because tuberculosis is the most common infection showing clinical symptoms presented by the complainant and delay in starting treatment may prove dangerous to the life of the patient. It is also contended that the compensation claimed in the complaint is exorbitant.

          3.      Based on the contention of opposite parties 1 & 2 that the hospital was insured with the National Insurance Company for claims arising against them, the said insurance company was impleaded as additional third opposite party, but they chose to remain exparte.

          4.      It is seen that the medical records relating to the complainant were sent to a medical expert for his opinion. The expert was examined as PW1. Ext.C1 is the report filed by him. The complainant gave evidence as PW2. Exts.A1 to A11 were marked on his side. Ext.X1 series of records from the first opposite party hospital were also marked on the side of the complainant. The second opposite party deposed before the consumer forum as DW1. Exts.B1 & X1 (a) (1) and (2) documents were marked on their side. As per the impugned order the consumer forum held that there was deficiency in service on the part of the opposite parties in starting treatment without exhausting investigations and by failing to closly the monitor the condition of the patient after starting the treatment. Accordingly, the consumer forum awarded compensation Rs.2.25 lakhs towards the deficiency in service committed by the opposite parties and Rs.1,00,000/- as compensation for the mental agony and suffering as a consequence of the deficiency in service. Cost of Rs.10,000/- also was directed to be paid. The said order of the consumer forum is being challenged in this appeal.

          5.      The questions that arise for consideration are firstly; whether the evidence on record justifies the findings of the consumer forum and secondly whether the quantum of compensation awarded is in any way excessive.

          6.      Admittedly, the complainant approached the second opposite party on 14.05.2007 with complaints of spiking fever particularly in the evening and pain in his joints since 2004. He had undergone treatment elsewhere in various hospitals but without substantial relief. It is admitted in the version itself that anti tuberculosis treatment was started by the opposite party on 16.05.2007. The allegation in the complaint is that anti tuberculosis treatment was started without any serious clinical examination or investigation. But according to the opposite parties clinical examination and various tests were done. CT of chest and abdoman was also taken on 16.05.2007.Investigations showed symptoms suggestive of tuberculosis. No doubt the evidence indicates that there were clinical symptoms suggestive of tuberculosis but it is in evidence that due to anti tuberculosis treatment the complainant developed features of early hepatic encephalopathy. Subsequently, he was admitted in the Lakeshore Hospital. Documents such as Ext.A6 and Ext.X1 series show that the doctors at the Lakeshore Hospital confirmed that the patient was suffering from adult onset stills disease. By that time the patient developed drugs induced hepatitis. On these basic facts after appreciating the evidence the consumer forum was of the view that the appellants showed undue haste in starting antituberculosis treatment before exhaustively investigating the patient clinically and secondly, the opposite parties failed to monitor closely, the condition of the patient during the course of administration of anti tuberculosis drugs.

 

          7.      Before going into the question whether the conclusions of the consumer forum are sustainable, it would be useful to refer the decisions having bearing on the subject cited by the learned counsel who appeared for the appellants .In Sanjeev Manktala Vs Ajit Sood & others, 2012 STPL (CL) 2697 the National Disputes Redressal Commission was considering the case of a patient who was treated for tuberculosis but later diagnosed to have cancer on the basis of the same test in a subsequent hospital. It is held that in relation to 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 another professional doctor.

          9.      Hemant Chopra (DR) Vs. Kulwinder Singh, 2011 STPL (CL) 2641 NC was a case in which wrong diagnosis as well as wrong treatment were alleged .The doctor who treated the patient was found to be competent. The National Commission held that the error on the part of the doctor can not be termed as gross medical negligence. The complaint was dismissed.

          10.    In Jagnarayan Lal Vs.Dr.Girija Tewari, 2009 STPL (CL) 3884 NC , it is laid down that a medical practitioner can be  held liable only if his conduct falls below the standard of a reasonably competent practitioner in his field. Further a person is not liable in negligence because someone else of greater skill and knowledge would have prescribed different treatment or operated in a different way. (Vide Ajay Kumar Singh Vs. Lt.Col.Dr.B.P.Singh , 2010 STPL (CL)1133 NC.

          11.    Coming to the facts of this case the evidence available clearly suggest that the clinical symptoms were suggestive of tuberculosis but it can not be said that the tests were conclusive to suggest tuberculosis. Even on clinical symptoms as per the prevailing protocol, there was nothing wrong in starting the Anti tuberculosis treatment. As seen already the settled law is that erroneous diagnosis perse need not be negligent diagnosis. The competence of the second opposite party as a physician is not questioned by the complainant. But the points are different. Merely because a doctor is competent, he need not necessarily show that much care in treating the patient. That is a matter to be decided with reference to the particular facts of the case. In the case of the complainant / respondent at least the bone marrow test and mantux test proved negative and this ought to have alerted the opposite parties for a review of the diagnosis already made and it ought to have prompted them to go for more confirmative tests. It is true that on the same test different diagnosis is possible as was done in the Lakeshore Hospital and error in the diagnosis perse is not a reason for holding that the appellants are liable in negligence.

          12.    The appellants also owed a duty to monitor the condition of the patient once they started the anti tuberculosis treatment. This duty was particularly high because the doctors were already alerted regarding the possibility of error in their diagnosis because of the negative nature of two tests. They also owed a duty to monitor the response of the medicines prescribed as possibility of error in diagnosis existed. It is well known that anti tuberculosis drugs are likely to have side effects on the liver of the patient and there is greater possibility of developing drug induced hepatitis.  It is true that the appellants discontinued anti tuberculosis treatment subsequently but already the damage was done and the patient had suffered much as a consequence. So it is difficult to conclude that the appellants as experts had bestowed that standard of reasonable care expected from medical experts of reasonable standards. In the above view of the matter, I am inclined to endorse the view of the consumer forum that the appellants were negligent in treating the complainant.

          13.    As to the quantum of compensation awarded having regard to the expenses incurred by the complainant his sufferings and adjacent circumstances, the compensation awarded is reasonable.

          In short, the appeal is devoid of merit and is dismissed but without costs.

K.CHANDRADAS NADAR   : JUDICIAL MEMBER

 

 

 

A.RADHA                               : MEMBER

 

 

 

SANTHAMMA THOMAS      : MEMBER

 

 

BE/

 

 

 

 

 

 

 

KERALA STATE

 CONSUMER DISPUTES

 REDRESSAL COMMISSION

 SISUVIHARLANE

VAZHUTHACADU

 THIRUVANANTHAPURAM

APPEAL 529/2013

JUDGMENT DATED :29.06.2015

 

 

                                                                                                                                                  BE/