State Consumer Disputes Redressal Commission
Ghanshyam Tahilyani vs Dr. Deepak Kanwar, M.D. Physician & Anr. on 3 January, 2012
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION
PANDRI, RAIPUR
Complaint Case No. 21/2009
Instituted on 07.10.09
Ghanshyam Tahilyani, S/o Shri Narayandas Tahilyani,
R/o: B-70, Gayatri Nagar, P.O.: Shankar Nagar, Raipur,
Tah. & Dist. RAIPUR (C.G.) ... Complainant.
Vs.
1. Dr. Deepak Kanwar, M.D., Physician,
Echo-cardiologist & Cardiologist,
C/o: Kanwar Nursing Home,
T.V. Tower Road, Anupam Nagar, Raipur,
Tah. & Dist. RAIPUR (C.G.)
2. United India Insurance Company Ltd.,
Having its Registered Office at, 24, Whites Road,
CHENNAI - 600 014 (TAMILNADU) ... Opposite Parties.
PRESENT: -
HON'BLE JUSTICE SHRI S.C. VYAS, PRESIDENT
HON'BLE SHRI V.K. PATIL, MEMBER
COUNSEL FOR THE PARTIES: -
Shri Naveen Ahuja, for complainant.
Shri R.K.Bhawnani, for OP No.1.
Shri P.K.Paul, for OP No.2.
ORDER
Dated: 03/01/2012 PER: - HON'BLE JUSTICE SHRI S. C. VYAS, PRESIDENT This is a complaint preferred by father of late Nitin Tahilyani, under Section 12 of Consumer Protection Act 1986 seeking compensation from the OPs to the tune of Rs.50,00,000/- along with interest @ 12% p.a., on the ground of alleged negligence committed by OP No.1, during treatment of Nitin Tahilyani, who could not survive after 02.02.2009.
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2. It is not in dispute that on 24.01.09 the complainant took his youngest son Nitin Tahilyani for checkup / treatment to OP No.1 at his Nursing Home. After checkup and examination OP No.1 prescribed certain medicines and also advised for blood test of specific nature and X-ray of chest P.A. view. Then the complainant took his son on the same day to Dr. Ruprela's X-ray & Sonography Centre and after taking his X-ray chest P.A. view, X-ray report was given by the specialist, which reads as under : -
"FEW INFILTRATES AND MINIMAL HAZY LEFT APEX RAISES THE POSSIBILITY OF EARLY KOCH'S. CARDIAC SIZE AND CONFIGURATION IS NORMAL. ADVICE: LORDOTIC VIEW."
He was also taken to Geetanjali Pathology Lab on the same day evening for blood test and required reports of blood test as well as chest X-ray examination were collected by the complainant from the concerning Laboratory and Diagnostic Centre and were shown to OP No.1.
3. The case of the complainant is that the OP No.1 after going through the reports, advised the same treatment to be continued for three more days, but even after three days no substantial improvement in the health of the Nitin Tahilyani could be noticed, so he was brought again to OP No.1, who admitted him in the Hospital as indoor patient for the period between 28.01.09 to 30.01.09 for two days. Second X-ray was advised, which was done again on 28.01.09 at Dr. Ruprela's X-ray // 3 // and Sonography Centre. Again blood test of Nitin Tahilyani was also conducted at Geetanjali Hi-Tech Diagnostic Centre, Raipur on 28.01.09 and both reports were handed over to OP No.1. The OP No.1 on 30.01.09 discharged the patient Nitin Tahilyani with advice to continue the prescribed medicines for another six months, as he was diagnosed as a patient of tuberculosis. It was requested by the complainant to OP No.1 to consult some other physicians or specialists, if necessary, but OP No.1 discarded his request and was of the opinion that his diagnosis was correct and consultation of any other physician was not necessary. After discharge from the Hospital of OP No.1, Nitin Tahilyani was not feeling well and his condition was not showing much improvement, hence on 31.01.09 he was taken to Dr. S.J. Khakharia. Dr. Khakharia immediately advised for ECG, ECHO and some other tests. All the tests were conducted, as per instructions of Dr. Khakharia. Eco-cardiography and color Doppler study of Nitin Tahilyani's heart was done by Dr. Ashish Malhotra at Heart Care Centre, Tiwari Nursing Home, Civil Lines, Raipur, who gave following final impression of Nitin's eco-cardiography and color Doppler study :
-
"? PRIMARY PULMONARY ARTERY HYPERTENTION. MARKEDLY DILATED RA, RV & PULMONARY ARTERY. MARKEDLY ELEVATED PULMONARY ARTERY PRESSURE. PREDICTED PULMONARY ARTERY PRESSURE=80/28 MM OF H.G. SEVERE, GRADE 3/3 TRICUSPID REGURGITATION. MILD, GRADE ¼ PULMONARY REGULATION. IAS & IVS INTACT.
NORMAL LV FUNCTION.
RV DYSFUNCTION PRESENT."
// 4 // It has been averred that Dr. Khakharia on examining Nitin Tahilyani correctly diagnosed that Nitin's case was very serious and he was suffering from pulmonary embolism and / or pulmonary hypertension. Dr. Khakharia has also mentioned and advised to immediately stop medicine for tuberculosis and advised the complainant to take his son to Bangalore for consultation with Dr. Devi Shetty of Narayan Hirudalaya. As the condition of Nitin Tahilyani was getting deteriorated day by day, so he was taken to Escorts Heart Institute and Research Centre, Raipur, where he was admitted as indoor patient on 01.02.09, but looking to his serious ailment, the Escorts Heart Centre, Raipur also could not do any meaningful and helpful treatment and advised to take the patient to some Multi-specialty Hospital. Then under the worst circumstances, Nitin Tahilyani was shifted and admitted to Ram Krishna Care Hospital, Raipur on 01.02.09. It was informed by the Doctors of that Hospital that the patient was suffering from acute pulmonary embolism and further they are trying their best and it was also stated that Nitin Tahilyani has been brought late for treatment and ultimately Nitin Tahilyani died at 9:30 a.m. on 02.02.09, due to cardio pulmonary arrest at Ram Krishna Care Hospital, Raipur. It is alleged by the complainant that the OP No.1 has acted in lethargic, unprofessional and negligent manner in treatment of his son. OP No.1 treated deceased Nitin Tahilyani first of pneumonia and subsequently for // 5 // tuberculosis. It has also been submitted that the patient's condition was deteriorating day by day, but even then he was discharged by OP No.1 from his Nursing Home on 30.01.09, on the ground that his stay in Nursing Home is not necessarily required. It was assured by OP No.1 that there is nothing to worry about and Nitin's health would slowly improve in due course of time and medicines prescribed by OP No.1 will improve his condition. It has also been alleged that OP No.1 was totally negligent and careless in treatment of Nitin Tahilyani and his health condition was deteriorating day by day due to wrong diagnosis, medication, callus and negligent approach, which resulted into aggravation of disease/condition of the patient and by the time when Nitin Tahilyani reached Ram Krishna Care Hospital, Raipur, nothing much could be done by Doctors of that Hospital, as it was already too late. It has also been alleged that the details of diagnosis, records of tests, health chart, medication provided bed head ticket and other relevant documents were not provided by OP No.1 to the complainant and the OP No.1 even failed to provide discharge summary of the deceased Nitin Tahilyani to the complainant, which is a willful and deliberate unprofessional conduct of OP No.1. It has also been averred that Dr. Ruprela in his X-ray report dated 24.01.09 had advised for Lordotic View of Nitin's chest, which the OP No.1 failed to follow. The OP No.1 also failed to give a proper and minute eye to the second X-ray report of Dr. Ruprela dated 28.01.09, wherein it has been // 6 // clearly mentioned that disease was extending and aggravated. It has also been alleged that had the OP No.1, during treatment at the early stage has followed proper line of diagnosis, treatment and ethics, then Nitin's pulmonary embolism could have been early detected, but because of the negligence committed by OP No.1, the boy has lost his life. On these allegations, compensation to the tune of Rs.35,00,000/- has been claimed, on the ground that because of untimely illness and death of Nitin Tahilyani he could not do his study in IHM, Aurangabad, where he was selected and after doing which he would have contributed to family income. Compensation for shock and duress to the complainant and his wife and for mental agony, pain and harassment has also been claimed to the tune of Rs.12,50,000/-. Compensation to the tune of Rs.2,25,000/- has been claimed as damages suffered as serious setbacks and feeling loneliness by the sister and brother of the deceased. Rs.25,000/- towards medical and other expenses have also been claimed. Thus in all Rs.50,00,000/- has been claimed as compensation.
4. The OP No.1 in his reply, at the outset, raised this preliminary objection that the complaint requires detailed evidence, which is not possible in summary procedure, therefore the same be dismissed on this ground. It has also been averred that the other Doctors by whom treatment and report was given to the deceased Nitin Tahilyani, have // 7 // not been made party in this complaint case, so also it is not maintainable. The facts regarding Professional Indemnity Policy issued by OP No.2 have also been stated as preliminary objection with prayer of joinder of the Insurance Company also as a party in this case.
5. On facts, it has been averred in the written version that when on 24.01.09, Nitin Tahilyani was brought to OP No.1, at that time he was having symptoms of pneumonitis, which was confirmed by X-ray of the same day. Medicines were prescribed and there was improvement in his health, as in the blood counts TLC was 19600 on 24.01.09, which gone down to 11800 on 28.01.09 by the treatment given to the patient by OP No.1. There was no symptom of any cardiac problem clinically as well as radiologically. He was given treatment for three days and to report after that, to see whether there is any improvement or not, but on 28.01.09 he was admitted in the Hospital and repeat X-ray showed Pulmonary Koch's i.e. tuberculosis. Then he was discharged on 30.01.09 with treatment advised for pulmonary Koch's. There was no sign or symptoms of any cardiac problem at the time of discharge i.e. 30.01.09. It has also been averred in the written version that the documents which have been filed by the complainant show that the patient most probably had symptoms of pulmonary embolism on 31.01.09 for which he was investigated and on investigation he was diagnosed as a case of pulmonary hypertension / pulmonary // 8 // embolism. If there would have been any early symptoms of cardiac problem it would have been picked up by two X-rays dated 24.01.09 and 28.01.09. Thus, during the period when the patient was treated by OP No.1, there was no sign or symptoms of any cardiac problem or pulmonary embolism or pulmonary hypertension. It has also been averred that the complainant, on his own has stated that the Doctors of Ramkrishna Care Hospital have stated that Nitin Tahilyani has been brought too late for treatment. There is no document or statement in support of that contention. The allegations of professional negligence or lethargy have been totally denied and it was also denied that OP No.1 was not careful in treatment of the patient and that is why his condition became deteriorated day by day. It has also been averred that at the time of discharge, discharge papers were given to the complainant and X-ray reports were already in the custody of the complainant, so nothing more was required to be provided to the complainant. It has been submitted that no compensation is payable by OP No.1 to the complainant.
6. Insurance Company / OP No.2 in their separate reply has also denied the allegations of medical negligence and has denied its liability to pay any amount to the complainant.
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7. The allegations of the complainant against OP No.1 is based on the following facts : -
(i) that, the OP No.1 was negligent in diagnosis and treatment of the disease suffered by Nitin Tahilyani.
(ii) that, it had failed to prescribe for lordotic view X-ray, though the same was advised by Dr. Ruprela in his report dated 24.01.09.
(iii) that, the diagnosis regarding tuberculosis was not appropriate and OP No.1 had failed to diagnose the disease of pulmonary embolism, which was required to be diagnosed by him early and was to be treated at early stage and on account of his failure to diagnose and during his treatment, condition of the deceased became deteriorated and ultimately he died.
8. We have heard arguments advanced by all parties and perused the material which has been brought on record by all parties.
9. All the treatment papers were sent by this Commission to the Dean of Dr. B.R. Ambedkar Medical College Hospital, Raipur, for obtaining opinion of Committee of Experts, regarding allegations of medical negligence. A Committee of Dr. R.K. Patel, Associate Professor, Dr. R.K. Panda, Assistant Professor and Dr. Y.N. Chaubey, // 10 // Assistant Professor, Department of Medicine was constituted by the Dean, who examined the treatment papers and sent their report, which is as under : -
"1. Patient Nitin Tahliyani 17/m, was taken to kanwar Nursing Home on 24.01.09 for check-up & Examination. Chest X-ray done by Ruprella X-ray & Sonography center Raipur & reporting showed few infiltrates & minimal haziness (left) apex, raises the possibility of early Koch's, cardiac size & configuration normal & advised lordotic view. And blood tests at Gitanjali Patho. Lab Raipur on same day (Document page No.(5). Then treatment was given for 3 days accordingly but no improvement was seen & Patient again went back to Kanwar Nursing Home on 28th & was admitted for 2 days i.e. 28/01/09 to 30/01/09 second chest X-ray at Ruprella X-ray & Sonography center on 28th Jan 09 showing infiltrates extended on left upper zone as compared to his previous Chest X- ray on 24/01/09. Which was reported by Radiologist Dr. Ruprella Koch's.
The committee was not provided with chest X-rays, hence it is not possible give opinion Regarding findings & diagnosis on the X-ray chest.
2. On 31st Jan. 09 Pt. was shown to Dr. khakharia for check-up & examination ECG, ECHO & colour doppler, done & ECHO showing Primary Pulmonary hypertension & marked RA, RV & Pulmonary. Artery dilatation, markedly increased pulmonary Arterial pressures, with Normal LV function & diagnosed as pulmonary hypertension & pulmonary embolism. & advised to consult Dr. Devi Shethy of Narayan Hridaylaya of Hyderabad.
3. On 01/02/09 Pt. was taken to Escorts Heart Center of Raipur but seeing the seriousness, Pt. was immediately referred to Ram Krishna Care Hospital & was shifted by party.
4. He was diagnosed at Ram Krishna Hospital, Raipur, as suffering from acute pulmonary embolism & Patient died in spite of all effort on // 11 // 02.02.09 at Ram Krishna Hospital. Cause of death was cardio pulmonary arrest.
5. Thus there are two diagnoses in question. One is Pulmonary T.B. at Kanwar Nursing Home and second is of pulmonary embolism by others (Dr. Khakharia, Dr. Ashish Malhotra, & Ram Krishna Hospital)."
Thus in this report the Committee of experts has not opined that there was anything wrong in the diagnosis and treatment of Koch's disease or that the OP No.1 has committed any negligence in diagnosis of this disease or that has prescribed a wrong treatment or he has failed to diagnose any other disease, which was existing, when the patient was under treatment of OP No.1. In fact the X-ray plates which were available with the complainant were not at all provided to the Committee nor have been filed before us and therefore the Committee has not expressed its opinion on the basis of X-ray plates and has expressed the opinion only on the basis of report of Dr. Ruprela and then have found that the X-ray report date 24.01.09 was showing few infiltrates and minimal haziness (left) apex, raises the possibility of early Koch's. It has also been noted by the Committee that cardiac size and configuration were normal. In the second X-ray of 28.01.09, it was found that infiltrates extended on left upper zone as compared to his previous chest X-ray on 24.01.09. The Committee has also taken note of the fact that on 31.01.09, the patient was shown to Dr. Khakharia. ECG, ECHO and color Doppler tests were done and it was observed // 12 // that the patient was having primary pulmonary hypertension and marked RA, RV and pulmonary artery. Artery dilatation, markedly increased pulmonary arterial pressures, with normal LV function and diagnosed as pulmonary hypertension & pulmonary embolism and the patient was advised to consult some other physician. In the Ram Krishna Care Hospital, Raipur it was found that the patient was suffering from acute pulmonary embolism and patient died in spite of all efforts on 02.02.09. Thus there were two different opinion, one of pulmonary T.B. at Kanwar Nursing Home and second of pulmonary embolism by other Doctors and so no opinion regarding negligence has been recorded by the Committee of experts.
10. Dr. Khakharia, to whom the patient was shown on 31.01.09, has been examined by the complainant before us. He stated that when the patient Nitin Tahilyani was brought to him, then he found that the patient was suffering from cough with blood, problem of respiration and swelling in his left leg. He was having difficulty in breathing and was also suffering from jaundice. When it was asked as to what medicines he was taking, then it was found that he was taking medicines of tuberculosis. The physician found that the jaundice is the side effect of medicines of tuberculosis, so advised for stopping all medicines of tuberculosis. On examination he found that the patient is probably suffering from heart problem. Therefore, he was sent to Dr. // 13 // Ashish Malhotra for ECG. It was found that he was suffering from pulmonary hypertension, which was resulting in difficulty in breathing. Jaundice could be detected after blood examination and liver function examination. As he was suffering from swelling of leg, so he was sent to laboratory of Dr. Chandrika Sahu for color venous Doppler test. When report of ECHO was received, then he consulted Dr. Ashish Malhotra, And Dr. Khakharia as well as Dr. Malhotra, both have opined at that time that the patient was suffering from pulmonary hypertension, so he was advised to be taken to Narayan Hrudyalaya Bangalore and it has also been averred by the physician that when he examined chest of the patient, then murmuring sound was heard, then he started a particular line of treatment, but when on the next day the trouble in taking breathe became aggravated then he was immediately advised to be taken to Escorts Heart Institute and Research Centre, Raipur. It has been stated by him that murmuring sound is one of the sign or symptom of heart disease, but it is not the conclusive symptom and if on other examinations it is found that the patient is having heart problem, along with murmuring sound, then it can be said that he was suffering from heart disease. It has also been stated by him that on account of toxicity of medicines, serum bilurubin may increase within 24 hours, but not all the times. In the case of T.B. infection, generally E.S.R. value increases, but if someone is having less resistance power, then E.S.R. may come to the normal value. It has // 14 // finally been opined by the physician that as the patient was having swelling in his left leg, it might be on account of venous thrombosis and because of blood clotting, flow of blood stopped. It has been stated by him that X-ray report dated 24.01.09, nowhere shows that the patient was suffering from any cardiac problem and in that X-ray report it was found that the cardiac size and configuration was normal. It has been stated by him that value of TLC increases on account of any viral, bacterial or any other infection. When on 28.01.09, the value of TLC was 11800, then it shows that the medicines which were prescribed to the patient were effecting upon him and the infection was decreasing. He has also stated that X-ray dated 28.01.09 shows no reference of any cardiac problem. He has also finally admitted that in absence of color Doppler test, it was not possible to say that swelling on left leg was on account of thrombosis.
11. Thus, the statement of Dr. S.J. Khakharia as well as his prescription Ex. P-1 shows that when the patient came to him on 31.01.09, then at that time, he was having some symptom of cardiac problem, but as swelling in his left leg was found on that date and the physician has opined that because of swelling in the left leg there were chances of having venous embolism, so this possibility cannot be ruled out that cardiac problem was developed at later stage.
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12. In the whole of the complaint or in the affidavit of the complainant it has not been stated that what were the real problems, from which the patient was suffering from, when he was taken to OP No.1, Dr. Deepak Kanwar. Only it has been stated that he was brought to OP No.1 for checkup and then the physician, after his examination and checkup, prescribed certain medicines, and advised for blood test and X-ray examination. X-ray report dated 24.01.09 was clearly showing that there was possibility of early Koch's, i.e. tuberculosis and it has been specifically stated in the report that cardiac size and configuration was normal. So there was no occasion for the physician to find that a boy of 19 years of age, whose cardiac size was normal and cardiac configuration was normal, was having some problem relating to heart. Second chest X-ray was showing few infiltrates and minimal hazy left apex raises and there were possibility of early Koch's i.e. tuberculosis, so naturally in such circumstances the physician had rightly prescribed medicines for controlling infection and ultimately the medicines effected as the value of TLC count, which was 19600, was brought down to 11800. In the second X-ray it has been specifically found that infiltrations are extended on left upper zone as compared to his previous film of 24.01.09, which was confirming that the patient was suffering from pulmonary tuberculosis, so the diagnosis and the line of treatment, prescribed by OP No.1, cannot be // 16 // said to be wholly incorrect or contrary to the report of X-ray and report of blood test.
13. Learned counsel for the complainant has very vehemently argued that for the purpose of positively ascertaining the sufferance of tuberculosis, it was necessary for OP No.1 to go for sputum test and for that purpose simply sputum was required to be collected and then sputum examination was required to be done.
14. It is true that sputum examination is a method for diagnosis of tuberculosis, but is not the only method of diagnosis of tuberculosis. In this regard literatures have been brought on record by both parties. 2011 Current Medical Diagnosis & Treatment, 50th Edition, edited by Stephen J. McPhee and Maxine A. Papadakis and other has been brought to our knowledge and it has been argued by counsel for the complainant that chest radiography is rarely helpful in narrowing the differential diagnosis and sputum induction is often necessary for diagnosis. In the book it has been stated that Essentials of Diagnosis are 'fatigue, weight loss, fever, night sweats, and cough (which were the symptoms present in the patient, when brought to OP no.1). Chest radiograph: pulmonary infiltrates, most often apical. Positive tuberculin skin test reaction (most cases) and acid-fast bacilli on smear of sputum or sputum culture positive for M tuberculosis'. So, if it is a // 17 // case of M tuberculosis then of course smear of sputum or sputum culture positive may be one of the essentials of diagnosis, but many times if the symptoms are clear, and the patient is not producing sputum, then there may be other ways to the physician for diagnosis and treatment of tuberculosis. In the book of Harrison's Principles of Internal Medicine, edited by Dennis L. Kasper, Eugene Braunwald and others, it has been stated that under the head 'Diagnosis' that "the key to the diagnosis of tuberculosis is a high index of suspicion. Diagnosis is not difficult with a high-risk patient-e.g. a homeless alcoholic who presents with typical symptoms and a classic chest radiograph showing upper lobe infiltrates with cavities. On the other hand, the diagnosis can easily be missed in an elderly nursing-home resident or a teenager with a focal infiltrate. Often, the diagnosis is first entertained when the chest radiograph of a patient being evaluated for respiratory symptoms is abnormal. If the patient has no complicating medical conditions that favor immunosuppression, the chest radiograph may show the typical picture of upper lobe infiltrates with cavitation. The longer the delay between the onset of symptoms and the diagnosis, the more likely is the finding of cavitary disease". In the same book it has also been stated that "several test systems based on amplification of mycobacterial nucleic acid are available. These systems permit the diagnosis of tuberculosis in as little as several hours. However, their applicability is limited by low sensitivity (lower // 18 // than culture, but higher than AFB smear microscopy) and high cost". In some cases, they may have utility of diagnosis of AFB-negative pulmonary and extrapulmonary tuberculosis in selected patients. At present, these tests are most useful for the rapid confirmation of tuberculosis in person with AFB-positive sputa. Thus if the radiographic images are positively showing possibility of tuberculosis, then also it cannot be said that the treatment given was wrong. In the Paper 'Respiration', Vol. 72, No.4, 2005, under Clinical Investigations it has been stated that "physicians should start anti-TB treatment in sputum AFB smear-negative patients with a high suspicion of TB not only for the benefits of the patients, but also for the control of TB in the community". It has also been stated in the paper that "the empirical anti-TB treatment in patients with sputum smear-negative presumptive pulmonary TB was effective and adequate, especially presented with patchy consolidation in initial chest radiographs in Korea."
15. Thus, if the treatment of tuberculosis was started by OP No.1 on the basis of findings of radiographic examinations, then it cannot be said that the OP No.1 committed some negligence in diagnosis, particularly when no sign or symptoms were there for any cardiac disease and it was never stated anywhere that the patient was having some swelling in leg or there were chances of pulmonary embolism, // 19 // because the radiographic examination was showing cardiac size and configuration normal.
16. So far as venous thrombosis and pulmonary embolism are concerned, in this regard OP No.1 has drawn our attention towards API Textbook of Medicine, 8th Edition, by Siddharth N. Shah and others. In this book, under the head 'Deep Venous Thrombosis and Pulmonary Embolism' it has been stated that "Deep venous thrombosis (DVT) is most common in the lower limbs, particularly in the venous sinuses of the soleus muscle in the calf, and in the femoral and iliac veins. It is much less frequent in the upper limbs." Under the head Diagnosis it has been stated that "most patients have no physical signs. DVT and pulmonary thromboembolism (PTE) are more common than is generally realized in healthy people with no predisposing cause. In a patient suspected to have DVT, a detailed history is elicited and careful inspection of the extremity is performed. One would look for redness and temperature, measure the leg circumference and try to elicit Homan's sign (calf pain on dorsiflexion of foot). However, very often the patient is completely asymptomatic. Recent evidence suggests that 1% of all asymptomatic calf vein DVT, that go home will die of PTE." Under the head Pulmonary Embolism, it has further been stated that the "PTE is defined as a condition where there is significant obstruction of a part or whole of the pulmonary // 20 // arterial tree by a thrombus migrating from a site outside the lung. PTE is not a disease per se, but is a complication of DVT in most cases. The primary source of PTE is from thrombi arising in the deep veins of the lower extremities (90%)." It has again been stated that "about 11% of patients with PTE die within the first hour after the embolic event and when death occurs after a few hours, it is usually due to a second embolic episode. The overall mortality in both clinically diagnosed and undiagnosed (revealed on autopsy) PTE is estimated at 32 per cent". Thus it is clear that pulmonary embolism is such a disease which develops all of a sudden on account of thrombus migrating from a site outside the lung, which shows that when Nitin Tahilyani was having pulmonary embolism then that thrombus reached the lungs within few hours from his leg which was having swelling, as the process was very fast and within hours it has completed and then within hours second embolic episode also happened. So, it is not possible in the facts of the present case, to say that the patient was suffering from pulmonary embolism, even when he was examined by OP No.1. It is just possible that it was altogether a new type of development in the body of the patient after his discharge from Hospital of OP No.1.
17. Thus, we do not find anything wrong in the diagnosis of tuberculosis and in not having diagnosed of pulmonary embolism by // 21 // OP No.1. For the first diagnosis clear and significant signs were available in the X-ray report and for the second diagnosis no sign or symptoms etc. were present in the patient, when he was under
treatment of OP No.1.
18. The patient was treated at Escorts Hospital as well as Ram Krishna Care Hosital, Raipur, at the later stage and was declared dead by Ram Krishna Care Hospital. Treatment papers of those two Hospitals have not been brought on record by the complainant. Merely the Medical Certificate of Cause of Death and the Death Certificate issued by Ram Krishna Care Hospital and the prescription recorded at Escorts Heart Institute and Research Centre have been brought on record. We find that in the prescription and diagnosis of Escorts Heart Institute and Research Centre, it was found by the Doctor at that time that it was a case of acute pulmonary embolism along with pulmonary Koch's on ATT along with DVT of left leg, etc. Thus the diagnosis of pulmonary tuberculosis was confirmed by Escorts Heart Institute and Research Centre also and apart from this disease, he was further diagnosed having acute pulmonary embolism along with DVT of left leg. So, these were subsequent developments, for which OP No.1 cannot be blamed.
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19. Clearly as per the Death Certificate issued by Ram Krishna Care Hospital and the Medical Certificate of Cause of Death, the patient died because of Cardiac Pulmonary Arrest and was found suffering from pulmonary thrombo embolism with DVT. In these certificates, nothing has been stated that earlier he was wrongly diagnosed as a patient suffering Koch's disease i.e. tuberculosis and has wrongly been treated for that disease.
20. So far as allegation of not conducting Lordotic view by X-ray is concerned, it does not have much weight because after 24.01.09, subsequent X-ray examination was conducted on 28.01.09 and at that time it was clearly found that infiltrations were extended on left upper zone as compared to his previous film of 24.01.09 compatible with Koch's. These clear findings were given in the reports by Dr. Ruprela and on the basis of these findings treatment was given without Lordotic view, which was suggested in the previous X-ray report, in which it was also stated that infiltrates and minimal hazy left apex raises and cardiac size and configuration was normal and it was later on confirmed that he was suffering from tuberculosis and the area of infiltration was extended.
21. Learned counsel for the complainant has drawn our attention towards pronouncement of Hon'ble Supreme Court in the case of V. // 23 // Kishan Rao Vs. Nikhil Super Speciality Hospital & anr., (2010) 5 SCC 513. In that case the patient was wrongly treated for typhoid instead of malaria for four days, resulting in her death. Thus, the facts of the case are distinguishable from the facts of the present case. It has been mandated by Hon'ble Supreme Court, in paragraph No.46 of that case that "in cases of gross medical negligence the principle of res ipsa loquitur can be applied." But when no negligence is established at all, then no question of application of principle of res ipsa loquitur arises in the facts of the present case. Case of Kusum Sharma & ors. Vs. Batra Hospital and Medical Research Centre and ors., (2010) 3 SCC 480, has also been cited by learned counsel for the complainant. Hon'ble Supreme Court in paragraph No.89 has summarized the basic principles emerge in dealing with the cases of medical negligence. If those principles are applied in the facts of the present case, then it is clear that OP No.1 was expected to bring reasonable degree of skill and knowledge and must exercise such degree of care. He was not expected to have a highest degree or knowledge nor a very low degree of care and competence. If he had started treatment of the patient after X-ray examination and necessary tests, on the basis of clear sign and symptoms, then no fault can be found in the course adopted by him. The case of Malay Kumar Ganguly Vs. Dr. Sukumar Mukherjee, (2009) 9 SCC 221, has also been pressed in service by learned counsel for the complainant. In that case, Doctors have been negligent in diagnosis and treatment of disease, but // 24 // in the facts of the present case no such negligence can be proved. It is true that "a doctor should not merely go by the version of the patient regarding his symptoms, but should also make his own analysis including tests and investigations where necessary" as held in Martin F. D'souza Vs. Mohd. Ishfaq, (2009) 3 SCC 1. But in the facts of the present case, the OP No.1 has conducted some tests including X-ray examination and blood test and then started treatment which appears appropriate in the facts of the present case. Case of Nizam's Institute of Medical Sciences Vs. Prasanth S. Dhananka & ors., (2009) 6 SCC 1 has also been cited by learned counsel for the complainant. In that case also negligence on the part of the Surgeon was established and then principles regarding 'adequate compensation' have been considered. But in the facts of the present case, even it has not been established that OP No.1 was in any way negligent in treatment of the patient. Patient Nitin Tahilyani died because of diseases, which might have developed at later stage and for that OP No.1 cannot be blamed.
22. Thus, after having considered the matter from all angles, we find that the allegations leveled by the complainant against OP No.1, regarding committing negligence in treatment of the patient could not be proved. The complainant has utterly failed to prove that either the OP No.1 has performed his duty without exercising reasonable degree of professional skill and competence or has prescribed any wrong // 25 // medicine in the treatment of the patient. The complaint has got no substance and is liable to be dismissed. The same is dismissed. No order as to cost.
(Justice S.C.Vyas) (V.K. Patil)
President Member
/01/2012 /01/2012