National Consumer Disputes Redressal
M/S Bhaskara Hospital, Diagnostic ... vs M.Pandarinath & Ors. on 24 January, 2012
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 3651 OF 2007 (Against order dtd.06.07.2007 in FA No.280/2004 of the State Commission, Andhra Pradesh) Dr.B.Shyam Sunder Raj .......Petitioner (s) Vs. M.Pandarinath & Ors. .......Respondent (s) REVISION PETITION NO. 101 of 2008 (Against order dtd.28.12.2007 in FAIA No.2099/07 in FA Sr.1810/2004 of the State Commission, Andhra Pradesh) M/s Bhaskara Hospital, Diagnostic Services .......Petitioner (s) Vs. M.Pandarinath & Ors. .......Respondent (s) BEFORE: HON'BLE MR. JUSTICE ASHOK BHAN, PRESIDENT HONBLE MRS. VINEETA RAI, MEMBER For Petitioner : Ms. K.Radha, Advocate for (R.P.No.3651/2007) Dr. B.Shyam Sunder Rao, Advocate For Petitioner : Mr.K.Bhaskara Rao and Mr.K.Maruti (R.P.No.101/2008) Rao, Advocate For Respondents : Mr.O.S.Sastry, Advocate Pronounced on 24th January, 2012 ORDER
PER VINEETA RAI, MEMBER Revision Petition No.3651/2007 has been filed by Dr.B.Shyam Sunder Raj (hereinafter referred to as the Petitioner) being aggrieved by the order of the State Consumer Disputes Redressal Commission, Andhra Pradesh (hereinafter referred to as the State Commission) in favour of M. Pandarinath & Ors. who were the original complainants before the District Forum.
In his complaint before the District Forum, M.Pandarinath Respondent had contended that his daughter, Ms.Kavitha, aged about 20 years was taken by him for treatment with a complaint of chest pain to one Dr.Sudheer Goje on 07.04.2000. Since, the patient was not responding to the treatment, Dr.Goje referred her to the Petitioner/doctor at Medwin Hospital where she was treated as an out-patient from 17.04.2000.
After conducting several tests including bronchoscopy test, CT Scan, SFB Stain Test etc., his daughter was prescribed medicines but since there was no relief, she again approached the Petitioner with complaints of vomiting and pain in the abdomen. The problem was diagnosed as Drug Induced Hepatitis and the patient was advised to stop the earlier medicines prescribed including ATT and instead given some other medicines. However, since even thereafter the problems continued, the patient was admitted to M/s Remedy Hospital Diagnostics where she expired. The Respondents contention was that no proper diagnosis or treatment was extended by the Petitioners at any stage and his daughter expired because of irresponsible and experimental medication without properly diagnosing her actual ailments. This amounted to medical negligence and deficiency in service resulting in her premature death. Respondent, therefore, issued a legal notice to the Petitioners and since there was no response, he filed a complaint before the District Forum on grounds of deficiency in service and medical negligence and requested that he be compensated for the severe tension, mental agony and heavy financial loss caused to him on the medical treatment and subsequent tragic death of his daughter, for Rs.4,85,000/- with interest rate as may be decided by the District Forum.
Petitioner denied the above contentions and stated that the patient was referred to him by Dr.Sudheer Goje with complaints of cough, weakness, nausea and after conducting extensive investigations since her ESR level was found to be very high and there was patchy opacity in lungs, the patient was diagnosed with Kochs disease (Tuberculosis). She was, therefore, prescribed the standard 4 drugs therapy and ATT for two weeks/one month and was asked to come for a review in case of any problems or adverse reactions to the medication. However, the patient did not come for a follow-up visit to report any problem and instead after one month her brother sought advice from the Petitioner/doctor over the telephone on the grounds that his sister was having vomiting and acute pain. Petitioner did not prescribe any medicines on telephone and instead directed that it was necessary for the patient to be examined by him before conducting any further treatment. The patient, therefore, again came on 22.05.2000 when she was diagnosed with having ATT induced Hepatitis which is known to occur in 5% to 10% patients who are taking medicines for the treatment of Kochs disease. The patient was immediately asked to stop the ATT and advised to get admitted into the Petitioners hospital for immediate treatment.
However, the patients brother declined this on grounds of financial constraints and left the hospital without intimating the Petitioner and took her to M/s Remedy Hospitals Diagnostics, Hyderabad where she passed away. According to the Petitioner, there was no case of medical negligence or deficiency in service on his part. The patient was rightly diagnosed with Kochs disease and given the standard treatment and was also asked to come for follow up visits in case of further complaints/adverse reaction which she failed to do. Even thereafter, when she came and was diagnosed with Drug Induced Hepatitis, she refused to get admitted to the hospital for further treatment and got shifted to another hospital without the Petitioners knowledge, where she subsequently passed away. Under the circumstances, the Petitioner could not be held responsible for the untimely, tragic and unfortunate death of the Respondents daughter.
The District Forum after hearing both parties partly allowed the complaint and held the Petitioner guilty of medical negligence on the grounds that the patient was prescribed ATT without conducting the necessary Liver Function Test and even thereafter when the patients relatives contacted him on telephone, he did not take due care to advice the patient to stop the medicines immediately because of which damage was caused to her Liver leading to her subsequent untimely death. The District Forum directed Petitioners No.1 and 2 to jointly and severally pay the Respondent, Rs.3 lakhs towards compensation, Rs.50,000/- for medical expenses and Rs.5,000/- as litigation costs within a period of two months from the date of the order. Aggrieved by this order, Petitioner No.1 filed an appeal before the State Commission which dismissed the same by observing as follows:
The contention of the appellant that he had prescribed 30 packs which means one pack per day and has explained clearly to the patient, the complications and the risks involved is unsustainable on the ground that the prescription i.e. Ex.A23 is silent about any such instructions given by the doctor to the patient. Moreover, the appellant mentioned in his grounds that instructions are given on the pack and had the patient enquired from him, he would have clarified any further enquiries, clearly indicates that the appellant did not explain to the patient the prognosis and the risks and complications involved in taking the TB drugs. It is admitted by the appellant doctor that the patients brother contacted him over phone with respect to continuous vomiting and pain and at least at that stage the doctor ought to have instructed the patient or her attendant about the side effect of the ATT drug when he himself has admitted that the diagnosis is drug induced hepatitis, it is upto the doctor to explain what steps he has taken to warn the respondent/complainant about the complications. The prescription, we reiterate is silent about any such instructions and ATT was stopped only on 22.05.2000 which shows that the patient was taking medicines prescribed by the appellant from 17.04.2000 to 22.05.2000 for a period of 5 weeks. Had the doctor immediately reacted to the information given by the patients brother that the patients condition did not improve and the vomitings continued, we are of the considered opinion that the damage caused to the liver could have been reduced. The appellant doctor without conducting the mandatory tests required for TB, prescribed the medicines meant for ATT treatment and the condition of the deceased deteriorated. It is also an admitted fact that the patient ultimately died due to Fulminat Hepatice Failure, Grade III Encephalopathy. With respect to the contention of the appellant/opposite party No.1 that there is no expert evidence in this case, we rely on the principle of Res Ipsa Loquitor which means things appear as they are and in the instant case the patient being treated for tuberculosis is an admitted fact and the side effects caused i.e. drug induced hepatitis is also an admitted fact and therefore, we agree with the observation of the District Forum that there is no need to examine an expert witness.
Hence, the present revision petition.
Petitioner No.2 had also filed an appeal before the State Commission with a delay of 29 days which was not condoned by the State Commission and who dismissed the appeal. Hence the present revision petitions including that filed by Petitioner No.2 (R.P.101/2008) against the order of the State Commissioner which has been tagged with the present revision petition (R.P.No.3651/2007) and will be disposed of by this single order.
Counsel for both parties made oral submissions. Counsel for Petitioner pointed out that Fora below erred in holding the Petitioners guilty of medical negligence and deficiency in service by not taking into account the evidence on file including the statement made by the Respondent on oath before the District Forum wherein he has admitted that the Petitioner after conducting diagnostic tests and prescribing medicines had specifically asked the Respondent to bring his daughter for a follow up specially in a case of any problem/adverse reactions to these medicines. Thereafter, when side effects were noted after 15 days, Respondent did not bring her to Hyderabad and instead sought advice on telephone. Even then, Respondent has admitted that the Petitioner/doctor had advised that his daughter be brought immediately to him for check-up and also to discontinue the medicines. Respondent has further admitted in his cross-examination before the District Forum that he left the hospital without informing the Petitioner/doctor or the hospital and got his daughter admitted in another hospital. Since Petitioner/doctor after extensive diagnostic tests had rightly diagnosed the patient as having Kochs disease for which standard treatment was started but since it is medically well known that adverse reactions could occur in such cases, he had given the right advice in the matter to come up for follow up visits and to discontinue medicines which as per the admission of the Respondent himself before the District Forum, he failed to do. The Fora below erred in not taking into account this important evidence and instead concluding that the Petitioners were guilty of medical negligence.
Counsel for Respondent on the other hand stated that Petitioners contention that the patient had T.B. was not confirmed through the various diagnostic tests because the diagnosis was made with a question mark. He also reiterated that the side effects of the medicines prescribed were not properly explained to the patient and it was only after the damage had occurred that the Petitioner advised the patient to stop the drugs and instead prescribed antibiotics. Further, before prescribing ATT drugs, it was mandatory on the part of the doctor to perform the Liver Function Test which was not done.
Respondents also denied that the only reason with that they could not admit the patient to the ICU of the Petitioners hospital was because they were demanding huge sums of money for further treatment which was not possible for the Respondent to pay. Counsel for Respondent concluded that right from the beginning without the clear diagnosis of TB, strong potent medicines were prescribed for the treatment of the same and further due care was not taken to conduct the Liver Function Test before prescribing the disease. Therefore, this was a clear case of medical negligence and deficiency in service because the Petitioner/doctor did not undertake the reasonable caution which he should have taken in such cases. The Fora below have rightly appreciated these facts and directed the Petitioners to compensate Respondent for their medical negligence and deficiency in service. The revision petition, therefore, deserves to be dismissed.
We have heard learned Counsel for both parties and have gone through the evidence on record.
The fact that the patient was referred to the Petitioner/doctor by Dr.Sudheer Goje with a complaint of chest pain is not in dispute.
Further, it is on record that extensive tests were conducted by the Petitioners to diagnose the medical problem which revealed patchy opacity in the lungs and high ESR level which are symptoms of Kochs disease. She was, therefore, prescribed the standard 4 drug therapy and ATT for two weeks/one month for treatment of Kochs disease (Tuberculosis). We further note from the evidence on record that the Respondent himself has admitted that the Petitioner had clearly advised the patient that she should come for follow-up visits and in case of any problems or side effects, she should immediately be brought for a review. He has also admitted before the District Forum that Petitioner No.1 specifically requested that the patient stop using the drugs once the complaint of adverse reaction was conveyed to him on telephone. Under these circumstances, we are unable to agree with the finding of the Fora below that the Petitioners showed medical negligence and deficiency in service by not correctly advising the Respondent to bring the patient for a follow-up visit or that to discontinue drugs in case of side effects. We further note that when the patient was finally brought to the Petitioner/hospital, she was immediately diagnosed with Drug Induced Hepatitis which is a side effect of ATT and that if she had been brought early, the damage to the Liver could have been minimal and would have been controlled. It is also on record that patient despite advice by the Petitioner/doctor to do so was not got admitted for further treatment in the ICU and instead left against medical advice. Since, Respondent himself has admitted that he acted contrary to the specific advice of the Petitioner/doctor, we find force in the Petitioners contention that there was no medical negligence or deficiency in service in the instant case.
We, therefore, set aside the orders of the Fora below and dismiss the revision petitions.
We further note that as per the order dated 31.01.2008 of this Commission, Petitioner in R.P.3651/2007 had deposited Rs.38,750/- (apart from Rs.50,000/- already paid by him to the Respondent) and Petitioner in R.P.101/2008 has deposited Rs.88,750/- with this Commission. In other words, the Petitioners have jointly and severally paid Rs.50,000/- to the Respondent and have deposited Rs.1,30,000/- with this Commission. Since Respondent has lost his daughter, taking a compassionate view to which Petitioners also have no objection as per their Counsel, we direct that the amount already released to Respondent may not be recovered and the FDRs deposited with this Commission be also released in favour of the Respondent along with accrued interest on the same.
Ordered accordingly.
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(ASHOK BHAN J.) PRESIDENT Sd/-
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(VINEETA RAI) MEMBER /sks/