State Consumer Disputes Redressal Commission
Neelam Daughter Of Pawan Kumar, ... vs Dr. Shivkant Sharma C/O Kant Hospital, ... on 9 July, 2012
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA, PANCHKULA First Appeal No.570 of 2008 Date of Institution: 22.02.2008 Date of Decision: 09.07.2012 Neelam daughter of Pawan Kumar, resident of near Old Bus Stand, Bhiwani, Tehsil and District Bhiwani. Appellant (Complainant) Versus Dr. Shivkant Sharma C/o Kant Hospital, near Rohtak Gate, Bhiwani, Tehsil and District Bhiwani. Respondent (OP) BEFORE: Honble Mr. Justice R.S. Madan, President. Dr. Rekha Sharma, Member. For the Parties: Shri Surender Sheoran, Advocate for appellant. Shri Sanjay Vashist, Advocate for respondent. O R D E R
Justice R.S. Madan, President:
This appeal has been preferred against the order dated 28.12.2007 passed by District Consumer Forum, Bhiwani whereby complaint filed by the appellant-complainant against the respondent-opposite party alleging medical negligence and deficiency in service, has been dismissed.
Complainant Neelam-student of B.A. Part-I suffered from fever in the first week of March, 2005. She was admitted in the hospital. Opposite Party conducted tests including monotex test of T.B. from the lab of his hospital and declared that the complainant was suffering from T.B. According to the complainant even after taking treatment, there was no improvement and therefore, the opposite party advised for pleural fluid test on 15.3.2005 from Yadav Pathology Lab Bhiwani and after conducting test, Dr. Satbir Yadav submitted his report that no AFB was seen. However, the opposite party continued giving the medicine of TB and thereafter advised for another test from Tyro care Rechnologies Ltd Thyrocare House, Thana Mumbai-4000610 on 29.03.2005. But no TB was found in the test. Complainant further alleged that due to wrong medicines, her condition deteriorated, her weight was reduced and BP was increased. On 8.4.2005 the complainant went to All India Institute of Medical Sciences, New Delhi for check up where the complainant was admitted and E.C.G., X-Ray Chest, ANA and UJG Abdomen, HIV, Bone Marrow etc tests were conducted and thereafter she was discharged from the hospital on 18.4.2005. The complainant continued to take medicines which were prescribed by the doctors of AIIMS, New Delhi.
As per summary issued by AIIMS dated 18.04.2005, the complainant was not suffering from tuberculosis. Thus, alleging it a case of medical negligence and deficiency in service on the part of the opposite, the complainant invoked the jurisdiction of the District Forum by filing complaint seeking direction to the opposite party to pay compensation of Rs.1,00,000/-
for wrong diagnosis, Rs.20,000/- for expenses incurred in AIIMS, New Delhi, Rs.2,00,000/- for mental agony and harassment and Rs.5500/- as litigation expenses.
Upon notice, the opposite party appeared and contested the complaint by filing written statement stating therein that before coming to the hospital of the opposite party, the complainant was already under Anti TB treatment from KPM Hospital, Bhiwani for two weeks and was responding to that treatment. The opposite party after considering total clinical picture/history, symptoms, examination and other investigation and her initial positive response of two weeks of anti T.B. treatment, was of the view that abdominal T.B. was an appropriate and most probable diagnosis. The opposite party is Chest & T.B. Specialist and therefore, the patient had come to the opposite party for second opinion and after proper assessment of history, clinical examination and investigations, the diagnosis of abdominal T.B. was thought to be quite genuine and appropriate. Hence, anti T.B. treatment was continued. The complainant-patient was discharged in an improved and fairly stable condition on 22.03. 2005 without any complaint on behalf of the complainant at that time. The patient was advised to come for follow up treatment on 27.03.2005. Since the complainant had developed complaint of joint pains in limbs and fever, which was a new symptom, which appeared for the first time, after consulting Dr. P.K. Anand and other colleagues, the opposite party was of the opinion that the complainant should be referred to a superior multi specialty hospital/institution and therefore, to find out the cause of joint limbs pain and fever, the opposite party advised the complainant on 05.04.2005 to go to A.I.I.M.S. or any other equally equipped hospital for evaluation. However, the attendants of the patient-complainant were interested in seeking a third opinion from some other physician at Bhiwani only before going to A.I.I.M.S. and therefore, the patient was taken to Dr. J.B. Gupta Hospital Bhiwani on the same day i.e. on 05.04.2005. As per the information given by the attendants of the patient to the opposite party, Dr. J.B. Gupta, after analyzing the whole history, investigation etc, had also continued the Anti TB treatment till the patient remained under his treatment and ultimately, the patient was advised to go to a superior hospital for further needful investigation, as whatever was feasible at Bhiwani, had already been done meticulously. The complainant concealed the factum of taking treatment from the aforesaid two hospitals and therefore, the complaint was liable to be dismissed on this ground as well. After going to AIIMS also the diagnosis of Disseminated Kochs (meaning thereby the T.B. which was spreading to many organs of the body simultaneously) was made as the most probable diagnosis after a thorough clinical examination and by perusing all the data available with the patient. At AIIMS, anti T.B. treatment was regularly continued and it was only on 15.04.2005, when the doctors of the AIIMS were able to find out a possibly genuine cause for the problem of Joint pains and relapse of fever after the receipt of ANA tests which came out to be positive. The note on the discharge car issued by AIIMS that no active focus of T.B. was found is not at all surprising and un-expected for which the complainant wanted to take undue advantage alleging the wrong treatment given by the opposite party. Thus, denying any kind of medical negligence and deficiency in service, the opposite party prayed for dismissal of the complaint.
On appraisal of the pleadings of the parties and the evidence adduced on the record, District Consumer Forum finding no substance in complainants version dismissed the complaint with the following observations:-
we are of the view that complainant miserably failed to prove her version by filing any piece of documentary evidence to establish the negligence or deficiency in service on the part of the respondent doctor. merely wrong diagnosis does not amounts to any negligency or deficiency on the part of the respondent doctor. it has been held in various authorities that even wrong diagnose is not any deficiency in service on the part of the doctors. So far as, question of starting of ante TB treatment by the respondent doctor, as alleged by the complainant is concerned, the same was started by the Dr.V.K. Chugh in KPM hospital when the complainant remained admitted there prior to the respondent hospital. Hence, there is no iota of truth in the version of the complainant that ante TB treatment was started by the respondent doctor during her admission in his hospital. Besides it, expert doctor supported the version of the respondent doctor that the ante TB treatment should not stop till any alternative diagnosis is not confirmed and he also admitted that even in AIIMS hospital the ante TB treatment was continued for about 7 days. So far as question of diagnosis of SLE (LUPUS) is concerned, respondent doctor produced the literature to establish that symptoms of SLE (LUPUS) and TB are almost same and some medicines are common in both the disease. We are convinced with the arguments advanced by the respondent counsel that respondent doctor made their good efforts and consult with other colleagues for treating the complainant.
Having considered the facts and circumstances of the case and the evidence led by the parties, we do not find any infirmity in the finding recorded by the District Forum in dismissing the complaint. Admittedly, for the first time the complainant had come to the opposite party for taking treatment on 04.03.2005 alongwith previous Anti T.B. treatment record of KPM Hospital, Bhiwani for two weeks. It is not the case of the complainant that she had taken treatment from the opposite for a long time as per medical norms. When the opposite party advised the complainant to take treatment from AIIMS, New Delhi or some superior multi specialty hospital/institution but before going to AIIMS, the complainant again got treatment from Dr. J.B. Gupta at Biwani who also diagnosed the complainant as TB patient. Even in the AIIMS, the complainant was given Anti TB treatment and it was only on 15.04.2005, when the doctors of the AIIMS were able to find out a possibly genuine cause for the problem of Joint pains and relapse of fever after the receipt of ANA tests which came out to be positive. Thus, keeping in view the facts and circumstances of the case, it is not a fit case of any medical negligence and deficiency in service against the respondent-opposite party. It is well settled law that wrong diagnosis is not medical negligence. Reference in this regard is made to case law HEMANT CHOPRA (DR) & ANR. Versus KULWINDER SINGH & ORS. IV(2011) CPJ 677 (NC), wherein Honble National Commission in para 12 of the judgment held that:-
In D.V. Ramana v C. Narasimhan (Dr.) & Anr., IV(2011) CPJ 120, this Commission held that mere wrong diagnosis by OP No.1 and wrongly burning part of healthy atrium ventricular node which created block in the heart could not amount to medical negligence unless such contention is supported by independent experts.
In Smt. Sajini, Major Versus Chaya Nursing Home & Ors, 2012(1) CPR 111 (NC), wherein Honble National Commission has held that medical complications cannot give always lead to inference of medical negligence. The facts of the instant case are fully attracted to HEMANT CHOPRA (DR) & ANR. Versus KULWINDER SINGH & ORS case (Supra) and Smt. Sajini, Major versus Chaya Nursing Home & Ors case (Supra). Thus, without there being any evidence in favour of the complainant, the respondent-opposite party cannot be blamed for medical negligence and deficiency in service.
As a sequel to our aforesaid discussions, we dismiss this appeal.
Announced: Justice R.S. Madan 09.07.2012 President Dr. Rekha Sharma Member