BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, VELLORE DISTRICT AT VELLORE. PRESENT: THIRU. A. SAMPATH, B.A., B.L., PRESIDENT TMT. G. MALARVIZHI, B.E. MEMBER – I THIRU. K. DHAYALAMURTHI,B.Sc. MEMBER – II CC. 27 / 2003 WEDNESDAY THE 6TH DAY OF JULY 2011. Vasimalla Barnabas, S/o. Devadanam, Nanakoduru Village, Chebrola Mandal, Guntur District, A.P. State. … Complainant. - Vs – 1. The Director, 2. The Medical Superintendent, 3. Dr. Seshadri, M.D. Dept of Endocrinology, 4. Dr. Aravinda Nair, Surgery Unit, 5. Dr. C.E. Eopen, Gastro-enterology, 6. Dr. Annathaiyan, Psychiatry, 7. Dr. Sudhir Kumar, Neurology, 8. Dr. Ninal Thomas, 9. Dr. Simon Rajarathinam, 10. Dr. Sumita Danda, 11. Dr. Unnikrishnan, 12. Dr. Raji, Department of Radio Diagnosis, All are at C.M.C. Hospital, Vellore. … Opposite parties. . . . . This petition coming on for final hearing before us on 15.6.11, in the presence of Thiru. A. Lakshmipathy, Advocate for the complainant and Thiru. M.R.Ramanan & Associates, Advocates for the opposite parties 1 to 12, and having stood over for consideration till this day, the Forum made the following: O R D E R Pronounced by Thiru. A. Sampath, President of the District Consumer Disputes Redressal Forum, Vellore District. 1. The brief facts of the case of the complainant is as follows: The complainant was suffering from Insulinoma (Low Blood Sugar) since 8 years. He was admitted in C.M.C. Hospital. On 6.3.2000 bearing No.CMCH 860182-B. with the complaint of Insulinoma. On examination he has been found giddiness, sweating and head-ache. He stayed in the Hospital for 24 days and spend huge amount under treatment of no.2 to 7 of opposite parties and under supervision and checking by No. 8 to 12 of opposite parties. During the period of treatment it is said that he has been improved the symptoms even after giving the tablets Dilatin, in addition Dia-oxide. Thereafter, it is advised to the complainant to taken some more tests. Believing the same, complainant agreed to take test and therefore nearly 40 tests including M.R.I and G.I and upper G.I. Endoscopy were conducted on him by No.8 of opposite party under the directions of No. 3 to 11 of opposite parties. For that complainant spent large amount of Rs.75,000/- towards tests. As per M.R.I and upper G.I Endoscopy tests, it has been said and found as per final diagnosis report that 1. Insulinoma 2. Seizure Dis-order, 3. Neuropathy Secondary to Insulinoma and 4. Essential Hyper Tension. And also No.12 of you impressed opined that multiple collaterals in the peripain cretic region and the porta with non-visualised portal vein – extrahepatic portal hyper-tension and cavernous transformation. No definite mass distinct of the collaterals visualized on the study. Verifying all the documents i.e. the results of the tests conducted on complainant, No.3 to 11 of the opposite parties advised to him undergo surgery for pancreatic Tumor. Believing the same, he agreed to undergo to the said surgery and paid Rs.1,00,000/- in advance out of Rs.4,00,000/- which, opposite parties demanded or the said surgery. i. In the opposite parties final Diagnosis even it is mentioned that the complainant has not suffering from the pancreastic Tumor. The opposite parties wrongfully advised the complainant to undergo surgery with an intension to grap wrongful gain by way of deceiving and causing wrongful loss to the complainant. ii. The reports of MRI and Upper G.I. Endoscopy did not disclose that the complainant was suffering from pancreatic Tumor. But by way of such advice, the opposite parties threatened the complainant if he had not undergo surgery, he would loss his life within two days. It is caused mental agony to him. iii. In all the tests conducted on complainant including MRI and Upper G.I. Endoscopy clearly show that the pancreas is normal in morphology and size. 2. Therefore it is clear that there is no defect in pancreatic region in connection with Tumor. Believing their false advice, he agreed to undergo Surgery and paid Rs.1,00,000/- and caused wrongful loss to complainant and these would have caused wrongful gains by lakhs of rupees from complainant. If the opposite parties have not intentionally committed any criminal offences, as afore said, it is clear that they will be responsible for deficiency of service in rendering medical treatment and ingiging proper advices and for professional negligent, since they have cause pacunary loss and caused injury to the feelings and prospects and also caused mental agony and also caused in-convenience and hardship to complainant and his family members. So, he is entitled for Rs.7,00,000/- towards damages as he suffered mental agony due to the opposite parties activities and false advice and all of the opposite parties are responsible for complainant’s medical expenses for Rs.75,000/- which occurred to the complainant in their Hospital and for other expenses for Rs.50,000/- since they have committed deficiency in service in their legal profession and influenced the complainant to pay Rs.1,00,000/- as an advance towards the surgery cost as part-payment and the complainant is paid the said amount. Therefore directing the opposite parties to pay a sum of Rs.10,25,000/- as a compensation for the complainant due to the deficiency in service on the part of the opposite parties and to pay the cost of the complaint. 3. The averments in the counter filed by the 2nd opposite party and adopted by the other opposite parties are as follows: The opposite party does not admit any of the allegations made through the complaint except those that are expressly admitted herein. The opposite parties No.8 (Dr.Dihal Thomas) and 10 to 12 (Dr. Sumita Danda , Dr. Unnikrishnan and Dr.Raji) were on leave when the complainant was admitted and treated in C.M.C. Hospital. These opposite parties are therefore not proper or necessary parties to these proceedings. The complaint is liable to be dismissed as against them for this reason alone. The complainant came to this Hospital on 6.3.2000 to the Casualty Department. He had been referred by Dr.Saral Elisha from Kugler Hospital, Gutur by the letter dt. 3.3.2000 as a suspected case of INSULINOMA. The Insulinomas are tiny tumors of 1-2 cum within the pancreas which would secrete excess amount of Insulin. Insulin is a pancreatic hormone which regulates glucose levels in the blood. Those tumors are mostly benign but sometimes have a potential for malignant transformation i.e. can become cancerous. The complainant presented on 6.3.2000 with the following complaints over the past 8 years. He has been experiencing recurrent episodes of giddiness, sweating and abnormal behaviour, sometimes associated with lose of consciousness and seizure. His symptoms would improve following administration of oral glucose or sugar. For the past 3 weeks, these episodes had become more frequent and he was getting these attacks once in every 3 hours. All these symptoms were suggestive of recurrent attacks of hypoglycemia (low blood sugar). The complainant was admitted in the CMC Hospital on 6.3.2000. After admission, the patient was subjected to a period of fasting, to document spontaneous hypoglycemia. He started fasting from 12 mid night on 6.3.2000 and by 1.30 a.m. within 1 ½ hours on 7.3.2000 he started complaining of sweating. Blood samples were collected from the complainant and blood tests confirmed hypoglycemia with inappropriately elevated insulin levels. The patient was started on Tablet DIAZOXIDE 25 mg. thrice daily from 7.3.2000 and the dosage was increased to 50 mg thrice daily to maintain normal blood sugar levels. He was also started on Tablet DILATIN (Phenytoin) 100 mg. thrice daily to control seizures. After starting of the above medicines, this patient’s blood sugar levels gradually normalized and his symptoms subsided. The high insulin levels and the good response to anti-insulin medication are symptomatic of the presence of any underlying-insulin-secreting tumor in pancreas (insulinoma) in this patient. Insulinoma is the most common cause of hypoglycemia, resulting from endogenuous hyperinsulinism. This case was discussed in the Endocrine – Surgery conference and opinions were also sought from specialists from other Departments like Gastroentero-Neurology, Psychiatry and Radiology. Then the treatment plan and the limitations with the various imaging techniques were explained to the patient and his relatives. The patient underwent CT/MRI scan which revealed a suspicious lesion in the head of pancreas. The EEG (Electro-incephalography) (recording of electrical activity of the brain) revealed features of generalized epilepsy and upper G1 endoscopy revealed a gastric module. 4. The MRI scan of the pancreas did not clearly localize the tumor. However, the following abnormalities were found on the MRI scan. a) a small kidney on the right side and b) multiple collaterals in the peripancreatic region and the porta with non-visualized portel vein i.e. when there is a blocked vein there will be other veins which open up and serve to carry the blood. The possibilities considered were a) extra hepatic portal hypertension or b) a leash of vessels feeding a tumor. The patient was referred to the Gastroentrologist Dr.C.E. Eapen for evaluation of extra hepatic portal hypertension. However this condition was excluded as no varices were seen during GI endoscopy. This was subsequently confirmed by Doppler studies. The Renal artery Stenosis (narrowing) was suspected since he has hypertension and a small kidney on the right side. However, the Doppler studies showed no abnormality in the Renal vessels. Thus from the abnormalities found on MRI scan of Pancreas, possibility of a leash of vessels feeding a tumor, remained to be explored. The tiny tumors in pancreas had to be removed by surgery. The patient also had symptomatic painful neuropathy and EEG changes suggesting generalized epileptiform activity i.e. epilepsy. He was therefore referred to Dr. Sudhir Kumar for Neurology evaluation. Since the patient was exhibiting episodic violet behaviour, he was also referred to Dr.Anna Thariyan for Neuro Psychiatry evaluation. As advised by them, the patient was started on Tablet Dilantin 100 gm. thrice daily. Surgery on pancreas was advised, as excision of the tiny tumors in the pancreas is curative. The patient was therefore referred to Endocrine Surgeon Dr. Aravinda Nair who reviewed the case and explained the need for exploratory laprotomy, a surgical procedure to the patient and his relatives. The approximate cost of surgery was given as Rs.30,000/- which included stay in the ICU for 24 to 48 hours in the immediate post operative period. But they declined further treatment, opted for Homeopathy treatment and requested for discharge from the Hospital. Therefore the patient was discharged from Hospital on 24.3.2000 against medical advice. It is false to allege that nearly 40 tests were conducted and that he spent Rs.75,000/- towards the same. The testes and X-ray, CT/MRI Scan were taken for evaluation of the condition of the patient which were necessitated by the dire condition of the patient and for proper diagnosis. The imaging techniques such as CT scan, MRI scan do not normally give a satisfactory answer, as the accuracy of all these procedures is only 80% at any time. The symptoms of the patient still continued. There was no other option but to identify the said palpation of the pancreas during surgery. The opposite parties denies the allegation that Rs.4,00,000/- was demanded for surgery or that he agreed for the surgery and paid Rs.1,00,000/- in advance. The patient paid in all Rs.20,019.24 only. Best care and attention were bestowed on the complainant and there was absolutely no deficiency of service. The opposite parties are not liable to pay any of the amounts claimed through the complaint. Hence this complaint is to be rejected. 5. Now the points for consideration are: a) Whether there is any deficiency in service, on the part of the opposite parties? b) Whether the complainant is entitled to the reliefs asked for?. 6. Ex.A1 to Ex.A6 were marked on the side of the complainant and Ex.B1 to Ex.B4 were marked on the side of the opposite parties. Proof affidavit of the complainant and Proof affidavit of the opposite parties have been filed. No oral evidence let in on the side of opposite parties. 7. POINT NO. (a) It is admitted facts of the parties that the complainant came to the casuality department of the 1st opposite party hospital on 6.3.2000 and he had been referred by Dr. Saral Elisha from Kugler Hospital, Gutur by the letter dt. 3.3.3000 as a suspected case of INSULINOMA. After admission, blood samples were collected from the complainant and blood test confirmed hypoglycemia with inappropriately elevated insulin levels. The patient was started on Tablet DIOZOXIDE 25 mg and table DILATIN (Phenytoin) 100 mg thrice daily from 7.3.2000. Then the patient underwent CT / MRI Scan which revealed a suspicious lesion in the head of pancreas. The EEG (Elctro-incephalography recording of electrical activity of the brain) revealed features of generalized epilepsy and upper G1 endoscopy revealed a gastric module. Thereafter the complainant was referred to the Gastroentrologist for evaluation of extra hepatic portal hypertension. Subsequently the Renal artery Stenosis (narrowing) was suspected since he has hypertension and a small kidney on the right side. The Doppler studies showed no abnormality in the Renal vessels. From the abnormalities found on MRI scan of pancreas, possibility of a leash of vessels feeding a tumor, remained to be explored. The tiny tumors in pancreas had to be removed by surgery. Therefore the complainant asked advice surgery on pancreas. But the surgery was not done, the patient was discharged from Hospital on 24.3.2000. 8. The complainant contended that after the admission the opposite parties advised to the complainant to take several tests believing the same, the complainant agreed to take nearly 40 tests including MRI and GI and upper GI Endoscopy were conducted on him. After results of the tests conducted on complainant, the opposite parties 3 to 11 advised him to undergo surgery for Pancreatic Tumor. Believing the same, he agreed to undergo to the said surgery and paid Rs.1,00,000/- in advance out of Rs.4,00,000/- which opposite parties demanded for the said surgery. But the reports of MRI and Upper G.I Endoscopy did not disclose that the complainant was suffering from pancreatic Tumor. In all the tests conducted on complainant including MRI and Upper G.I. Endoscopy clearly show that the pancreas is normal in morphology and size. Believing their false advice the complainant agreed to undergo surgery and paid Rs.1,00,000/- and caused wrongful loss of complainant. Hence, the opposite parties will be responsible for deficiency of service in rendering medical treatment. 9. The opposite parties contented that the complainant was referred by Dr. Saral Elisha from Kugler Hospital, Guntur for a suspected case of Insulinoma. All the tests conducted by the opposite parties also proved that this is a case of Insulinoma. Insulinoma is a pancreatic harmone which regulates glucose levels in the blood. Further, Insulinoma is the most common cause of hypoglycemia, resulting from endogenous. Surgery of pancreas is the treatment normally given to such case. The said treatment was suggested by the opposite parties and it was supported by medical literature of Ex.B3 and Ex.B4. But the complainant alone refused surgery and withdrew against medical advice and he opted for homeopathy treatment elsewhere. Therefore there is no question of negligence in the matter of diagnosis on the part of the opposite parties. 10. From the perusal of the Ex.A.6 series medical bills it is seen that the complainant had paid nearly Rs.21,000/- on several days for medicines and other tests. But there is no proof that the complainant had Rs.1,00,000/- as advance for the alleged false advice of surgery. It is admitted fact that the complainant underwent MRI Scan which reveals a suspicious lesion in the head of pancreas and the EEG (Electro- incephalogrphy recording of electrical activity of the brain) revealed features of generalized epilepsy and upper G1 endoscopy revealed a gastric module. Dr. Simon Rajarathinam who is the 9th opposite party stated in his proof affidavit that after admission the complainant was subject to a period of fasting to documents spontancous hypoglycaemia and blood samples were collected from the complainant and blood tests confirmed hypoglycaemia with inappropriately elevated insulin levels. The patient was started on Tablet DIAZOXIDE 25 mg and tablet DILATIN 100 mg thrice daily to control seizures. The patient’s blood sugar level gradually normalized and his symptoms subsided. This case was discussed in the Endocrine surgery conference of Doctors of CMC and opinions were also sought from specialists from other Departments like Gasteroentero – Neurology, Psychiatry and Radiology. It is further stated that the MRI of the pancreas did not localize the tumor. But the following abnormalities were found on the MRI Scan. a) a small kidney on the right side and b) multiple collaterals in the peripancreatic region and the porta with non-visualized portel vein i.e. when there is a blocked vein there will be other veins which open up and serve to carry the blood. The possibilities considered were a) extra hepatic hypertension or b) a leash of vessels feeding a tumor. The patient was referred to the Gastroentrologist Dr. C.E. Eapen for evaluation of extra hepatic portal hypertension. The Renal artery Stenosis (narrowing) was suspected since he has hypertension and a small kidney on the right side. However, the Doppler studies showed no abnormality in the Renal vessels. Thus from the abnormalities found on MRI scan of pancreas, possibility of a leash of vessels feeding a tumor, remained to be explored. The tiny tumors in pancreas had to be removed by surgery. 11. The learned counsel for the opposite parties argued that the result of the tests proved that this is the case of insulinoma are tiny tumors of 1 or 2 cms within the pancreas which would produce excess amount of insulin. Insulin is a pancreatic harmone which regulates glucose levels in the blood. Insulinoma is most common cause of hypoglycemia. These can be seen at page No.959, 960 of medical literature Ex.B3. Ex.B3 copy of Williams Text book of Endocrinology 9th Edition page No.959 Insulinoma observed as follows: “ An Insulinoma is the most common cause of hypoglycemia resulting from endogenous hyperinsulinism resulting from endogenous hyperinsulinism. In adults, solitary insulinomas are most common, although multiple adenomas or microadenomatosis also occurs. Insulinomas are rare, the estimated incidence being one case per 250.000 patient-years, but it is curable cause of potentially lethal hypoglycemia. Insulinomas are generally small, averaging 1 to 2 cm in diameter but rang up to 15 cm. They almost always come to clinical attention because of hypoglycemia. Five to 10% of insulinomas are malignant. Computed tomography or magnetic resonance imaging of the upper abdomen should be performed initially although a normal study does not exclude insulinoma, as the tumors are often small. Given convincing clinical and biochemical evidence of the presence of an insulinoma, surgical exploration may be indicate in patients with normal computed tomography or magnetic resonance imaging scans. The learned counsel for the opposite parties further argued that the diagnosis of insulinoma is readily established by the demonstration of fasting hypoglycemia, inappropriate plasma insulin and MRI scan can correctly localize tumors only 50% to 70% of the time. So, surgery is the treatment of choice of insulinoma”. It can be seen in page No.932, page No.933, page No.934 of Ex.B4 medical literature. From the perusal of Ex.B4 Endocrinology, Fourth Edition, page No.932 the symptoms of Insulinoma Patients is as follows: - Altered mental status
- Abnormal behaviour
- Weight gain
- Drowsiness
- Convulsions
- Amnesia
- Headaches
- Sweats
- Palpitations
The diagnosis of insulinoma is readily established by the demonstration of fasting hypoglycemia, inappropriate plasma insulin. They average about 2 cm in diameter and appear with equal frequency in the head, body, and tail. Although about 75% to 90% can be correctly identified by palpation at surgery. 12. From the perusal of Ex.A1 Discharge Summary it is seen that the complainant took treatment in the opposite parties Hospital from 6.3.2000 to 24.3.2000. After the necessary tests, the opposite parties finally diagnosis that : 1. INSULINOMA 2. SEIZURE DISORDER 3. NEUROPATHY SECONDARY TO INSULINOMA 4. ESSENTIAL HYPERTENSION. The complainant also had Neuropathy symptoms and EEG findings suggestive of generalized epilepsy, he was hence started on Tab. Dilantin in addition to Tab. Diazoxide. His symptoms improved with treatment and he was advised surgery for the pancreatic tumor. However he opted for Homeopathy treatment and was discharged against medical advice. From the perusal of the proof affidavit of 9th opposite party, and the above contention the medical literature Ex.B3 and Ex.B4 it is clear that surgery of pancreas is the treatment normally given to such case. Accordingly, the surgery was suggested by the opposite parties but the complainant alone refused surgery and discharged from the hospital. Therefore, the diagnosis and the treatment suggested by the doctors of opposite parties are correct. 13. The learned counsel for the opposite parties have argued that the bare allegations in the complaint would not establish charge of false diagnosis on the part of the opposite party. The burden of proof on the medical negligence lies on the complaint, but in this case, the complainant has not proved the allegation made in the complaint against the opposite parties through medical records or expert evidence. In this connection the learned counsel for the opposite party is relying upon the following Judgments of Hon’ble Supreme Court and National Consumer Disputes Redressal Commission, New Delhi. I. (2009) 7 Supreme Court Cases 130 C.P. SREEKUMAR (DR.), MS (ORTHO) ..Vs.. S.RAMANUJAM Wherein the Hon’ble Supreme Court is held that “ As already observed in Jacob Mathew case the onus to prove medical negligence lies largely on the claimant and that this onus can be discharged by leading cogent evidence. A mere averment in a complaint which is denied by the other side can, by no stretch of imagination, be said to be evidence by which the case of the complainant can be said to be proved. It is the obligation of the complainant to provide the facta probanda as well as the facta probantia. In Jacob Mathew case it has been observed as under: (SCC pp.32-33, para-48) “(1) Negligence is the breach of a duty caused 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. The definition of negligence as given in Law of Torts, Ratantal 7 Dhirajlal (edited by Justice G.P.Singh), referred to hereinabove, holds good. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: ‘duty’ , ‘breach’ and ‘resulting damage’ (2) Negligence in the context of the medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the par of a medical professional. II. 2007 (2) CPR 260 (NC) N. Krishna Reddy ..Vs.. Christian Medical College and Hospital Rep. by its Medical Superintendent & Anr. Wherein the Hon’ble National Commission, New Delhi is held that, “ Consumer Protection Act, 1986 – Sections 21(a)(i) – and 2 (1) (g) – Complaints about medical negligence – Medical negligence must be established and not presumed. In the absence of expert evidence on behalf of the complainant, no negligence or deficiency in service could be found against the affidavits filed by Hospital and doctors. “ In the present case, from the perusal of Ex.A1 discharge summary, Ex.A2 MRI Scan report and Ex.B1 series medical records of the complainant issued by the opposite parties hospital would show that the diagnosis and advice to the complainant for surgery by the opposite parties are correct. But the complainant alone refused surgery and withdrew against medical advice and he opted for homeopathy treatment. 14. The nature of the medical profession is such that there are many courses of treatment in each disease. The diagnostic procedure may by vary, and the approach by each doctor will be different and the treatment given to a patient differs from man to man. It is for the doctor treating the patient to decide the best course of action and if he has done the job exercising due diligence with such standard of care that is required of him. Unless it is shown that the Doctors have failed to opt a particular precaution or failed to follow the procedure for diagnosis and treatment, such failure has called to the ultimate result of complication. Therefore except the complaint there is no medical record or expert evidence to prove that the doctors of opposite parties Hospital suggest the false advice and thereby they have committed deficiency in service on their part. The ruling cited by the learned counsel for the opposite party are squarely applicable to facts and circumstances of this case. 15. Hence, taking all the above facts into consideration from the contention in the complaint and the counter, as well as proof affidavit of the both the parties, and from the documents Ex.A1 to Ex.A6 and Ex.B1 to Ex.B4, we have come to the conclusion that the complainant herein has not clearly proved the deficiency in service on the part of the opposite party herein. Hence we answer this point (a) as against the complainants herein. 16. POINT NO : (b ) In view of our findings on points (a), since, we have come to the conclusion that the complainants herein have not clearly proved the deficiency in service on the part of the opposite parties herein. We have also come to the conclusion that the complainant is not at all entitled to any relief asked for by him, in this complaint. Hence we answer this point (b) also as against the complainant herein. 17. In the result, this complaint is dismissed. No costs. Dictated to the Steno-typist and transcribed by her, corrected and pronounced by the President, in Open Forum, this the 6th day of July 2011. MEMBER-I MEMBER-II PRESIDENT. List of documents: Complainant’s Exhibits: Ex.A1- 23.3.00 - Discharge Summary. Ex.A2- 15.3.00 - MRI Scan Report. Ex.A3- 24.9.00 - X-copy of legal notice. Ex.A4- 29.9.00 - Reply Notice. Ex.A5- 10.2.01 - Reply notice by Opposite party’s counsel. Ex.A6 series - Medical receipts. Opposite parties’ Exhibits: Ex.B1 series - - X-copy of Opposite parties Medical records and x-ray films. Ex.B2- 10.2.01 - X-copy of reply notice. Ex.B3- -- - X-copy of Willimas Text book of Endocrinology Page No.959 to Page No.961. Ex.B4- -- - X-copy of Endocrinology 4th Edition by Leslie J. DeGroot, J. Larry Jameson Page No.930 to Page No.935. MEMBER-I MEMBER-II PRESIDENT.
| | [ Hon'ble Tmt G.Malarvizhi, B.E] MEMBER[ Hon'ble Thiru A.Sampath, B.A., B.L] PRESIDENT[ Hon'ble Tr K.Dhayalamurthy, Bsc] MEMBER | | 
