National Consumer Disputes Redressal
Oriental Insurance Co. Ltd. vs Kulwinder Singh & Ors. on 29 November, 2011
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 458 OF 2007 (From the order dated 03.07.2007 in Complaint No. 27/2003(Pb)/13/2007 of UT Chandigarh State Consumer Disputes Redressal Commission) 1. Dr. Hemant Chopra, Prof. & Head, Department of ENT, Dayanand Medical College and Hospital, Ludhiana. R/o 908/4-C, Tagore Nagar, Near Deaf & Dumb School, Ludhiana 2. Dayanand Medical College & Hospital Ludhiana Appellants Versus 1. Kulwinder Singh 2. Dilmandeep Singh 3. Anmoldeep Singh All R/o Village Lapran, Tehsil Payal, District Ludhiana 4. National Insurance Co., Mullanpur Branch, Mullanpur Dakha, District Ludhiana 5. Oriental Insurance Co., Ludhiana Respondents FIRST APPEAL NO. 581 OF 2007 (From the order dated 03.07.2007 in Complaint No. 27/2003(Pb)/13/2007 of UT Chandigarh State Consumer Disputes Redressal Commission) Oriental Insurance Co., Ludhiana through Manager, Oriental House A-25/27, Asaf Ali Road, New Delhi 110002. Appellant Versus 1. Kulwinder Singh 2. Dilmandeep Singh 3. Anmoldeep Singh All R/o Village Lapran, Tehsil Payal, District Ludhiana 4. Dr. Hemant Chopra, Prof. & Head, Department of ENT, Dayanand Medical College and Hospital, Ludhiana. R/o 908/4-C, Tagore Nagar, Near Deaf & Dumb School, Ludhiana 5. Dayanand Medical College & Hospital Ludhiana 6. National Insurance Co., Mullanpur Branch, Mullanpur Dakha, District Ludhiana Respondents FIRST APPEAL NO. 737 OF 2007 (From the order dated 03.07.2007 in Complaint No. 27/2003(Pb)/13/2007 of UT Chandigarh State Consumer Disputes Redressal Commission) 1. Kulwinder Singh 2. Dilmandeep Singh 3. Anmoldeep Singh All R/o Village Lapran, Tehsil Payal, District Ludhiana Appellants Versus 1. Dr. Hemant Chopra, Prof. & Head, Department of ENT, Dayanand Medical College and Hospital, Ludhiana. R/o 908/4-C, Tagore Nagar, Near Deaf & Dumb School, Ludhiana 2. Dayanand Medical College & Hospital Ludhiana 3. National Insurance Co., Mullanpur Branch, Mullanpur Dakha, District Ludhiana 4. Oriental Insurance Co. Ltd. Ludhiana Respondents BEFORE HONBLE MR. JUSTICE V.R. KINGAONKAR, PRESIDING MEMBER HONBLE MR. VINAY KUMAR, MEMBER For Dr. Hemant Chopra Mr. B.B.S. Sobti, Advocate For Kulwinder Singh & Ors. Dr. S.P. Shouri, Advocate For Oriental Insurance Co. Ltd. Mr. Kishore Rawat, Advocate PRONOUNCED ON : 29th NOV. 2011 COMMON JUDGEMENT PER JUSTICE V.R. KINGAONKAR, PRESIDING MEMBER 1. All the three appeals, noted above, are being decided by this common judgement inasmuch as they arise out of same judgement rendered by the State Consumer Disputes Redressal Commission, UT Chandigarh in complaint case no. 27/2003(Pb)/13/2007. 2. For sake of convenience, the parties may be referred by their nomenclature as it was before the State Commission. By the impugned judgement, the complaint was partly allowed. The State Commission directed payment of compensation to the tune of Rs.14,80,000/- to the complainants by the Opposite party nos. 1 & 2 jointly and severally. The State Commission also directed that since the opposite party nos. 1 & 2 were insured, the insured amount could be recovered from the insurance companies to the extent of Rs.10 lakhs each. Feeling aggrieved, original opposite party no. 1 Dr. Hemant Chopra and Opposite Party No. 2, Dayanand Medical College and Hospital, have jointly preferred FA No. 458/2007. So also, opposite party no. 4, Oriental Insurance Co. Ltd. has preferred FA No. 581/2007 due to direction of recovery under the Insurance Policy being liability of the insured under writer. Being dissatisfied with the quantum of compensation awarded, Kulwinder Singh and others, who were the original complainants, have preferred appeal (FA No. 737 of 2007). 3. Complainants, Kulwinder Singh and others are the husband and sons respectively of deceased Smt. Jaswinder Kaur. Smt. Jaswinder Kaur was a teacher in a Government Middle School, Ghangas, District Ludhiana at the relevant time prior to her death. She died on 22.01.2003 as a result of intestinal cancer. 4. Indisputably, Smt. Jaswinder Kaur visited OP No. 1 Dr. Hemant Chopra on 16.04.2001 for the first time in the OP No. 2 Hospital. He is E.N.T specialist. She complained of sore throat and pains in swallowing food. He suggested certain clinical tests including endoscopy. The tests were conducted at Gupta Medical Lab and E.E.G. Centre. On 18.04.2001 endoscopy was conducted in Gastroenterology department of the hospital. Thereupon, OP No. 1, Dr. Hemant Chopra prescribed certain medicines. She continued to visit the Hospital on various dates, viz., 10.05.2001, 31.05.2001, 03.10.2001 and 30.04.2002. Though there was some relief on account of medication yet during August 2002, she again visited OP No. 1 Dr. Hemant Chopra and told him that she was not completely cured as such. She was admitted in the hospital on 21.08.2002 allegedly due to Dysphagia. A report on 18.04.2001 was given by Gastroenterology Department which did not show need for operative treatment, and, therefore, she was discharged on 26.08.2002. She visited OP No. 2 Hospital on 16.09.2002 and was treated further after conducting of various tests. Ultimately, one Dr. H.S. Pannu gave opinion that she was suffering from ulcers which were blocking the lumen of oesophagus. Biopsy was conducted and thereafter it was confirmed that she was suffering from intestinal cancer. She was advised esophageal stenting. She was referred to Arora Neuro Centre Pvt. Ltd for further examination. She was later on operated and discharged on 16.11.2002. Her condition did not improve in spite of the operative procedure. She was admitted in Rajiv Gandhi Cancer Institute, New Delhi on 18.11.2002. However, from there she was discharged on 25.11.2002 and was given Chemotherapy from time to time. She took chemotherapy between 31.12.2002 till 05.01.2003. Eventually, the spread of cancerous cells took the toll on 22.01.2003. According to complainants, Kulwinder Singh & Others, OP No. 1 Dr. Hemant Chopra, committed gross medical negligence by giving treatment for Dysphagia. The wrong diagnosis as well as error in the line of treatment given to Smt. Jaswinder Kaur by OP No. 1 Dr. Hemant Chopra is the main cause which ultimately ended her life. Consequently, they claimed the compensation amount from all the four opposite parties. 5. Opposite Party No. 1 Dr. Hemant Chopra and OP No. 2 Dayanand Medical College and Hospital resisted the complaint by their joint written version. They denied that there was any medical negligence committed by either of them. They submitted that though endoscopy was conducted by Dr. S.S. Sidhu during the course of medical treatment of Smt. Jaswinder Kaur, no abnormality was found leading to infer growth of cancerous cells nor clinically symptoms of oesophagus cancer had been noticed. They submitted that proper treatment was given to Smt. Jaswinder Kaur as per her complaints made at the initial stage. They further submitted that the stent was affixed during operative procedure only with a view to remove the difficulty of transmission of food material from mouth upto the stomach. They submitted that no surgery was conducted at the relevant time and the stent was implemented on 07.11.2002. They denied, therefore, that there was medical negligence committed by either of them. Hence they sought dismissal of the complaint. 6. The insurance companies admitted that indemnity policies were issued in favour of OP No. 1 Dr. Hemant and OP No. 2, Dayanand Medical College and Hospital. However, they denied that there was any medical negligence committed by either of the parties insured by them. Hence, they too sought dismissal of the complaint. 7. On basis of material placed on record, the complaint was partly allowed holding that OP No. 1 Dr. Hemant Chopra and OP no. 2 Dayanand Medical College and Hospital committed medical negligence on account of gross error of omission to notice growth on cancerous cells in the intestine of Smt. Jaswinder Kaur. 8. We have heard learned counsel for the parties. We have also carefully gone through the relevant medical record, pleadings of the parties and other material. 9. At the outset, it may be mentioned that the main reason for holding OP No. 1 Dr. Hemant Chopras responsibility for the alleged medical negligence is said to be that he is Gastroenterologist and ought to have referred Smt. Jaswinder Kaur to undergo endoscopy in Gastroenterology department for treatment of Oesophagus. The State Commission also observed that treatment of Smt. Jaswinder Kaur was for dysphagia though she needed treatment for the real reason of ailment being Oesophagitis. It is in view of such findings that the State Commission arrived at conclusion of medical negligence on part of OP No. 1, Dr. Hemant Chopra and OP No. 2 Dayanand Medical College and Hospital. 10. The points required to be determined in these appeals are as follows:- i) Whether it is duly proved that OP No. 1 Dr. Hemant Chopra and OP No. 2 Dayanand Medical College and Hospital did not take due care and did not exercise professional skill as per the standard required of the medical professional?; ii) Whether it is duly proved that OP No. 1 Dr. Hemant Chopra committed gross negligence by giving totally erroneous finding about diagnosis of the cause of Dysphagia and gave utterly wrong treatment, which in fact, caused death of Smt. Jaswinder Kaur on account of such negligence on his part?; iii) Whether complainants Kulwinder Singh and others have proved that they are entitled to recover more compensation and the amount awarded by the State Commission is on lower side? If yes, what is the reasonable amount to which they are entitled? 11. Before we embark upon discussion about the factual aspects of the matter, it is useful to take into account legal position on the subject of the cases of medical negligence. In Vinitha Ashok (Smt.) Vs. Lakshmi Hospital & Others [(2001) 8 SCC 731], the Supreme Court observed as under:- 23. Now, we shall turn to the next question raised by the appellant that there has been negligence in failure to take precautions to prevent accidental injury. The argument on this aspect is based on the dictum of the direction given to the jury by McNair J. In Bolam vs. Friem Hospital Management Committee (supra) which is as under : I myself would prefer to put it this way : a doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art. Putting it the other way round, a doctor is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion that takes a contrary view." 24. This is the legal position of the standard of care required by a doctor. A doctor will not be guilty of negligence if he has acted in accordance with the practice accepted as proper by a responsible body of medical men skilled in that particular art and if he has acted in accordance with such practice merely because there is a body of opinion that takes a contrary view will not make him liable for negligence. 12. In D.V. Ramana Vs. C. Narasimhan (Dr.) & Anr. [IV (2011) CPJ 120 (NC)], 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. 13. It is by now well-settled that where there are intricacies that require proper understanding before giving any finding on the question of medical negligence. An independent opinion of expert is very much helpful. It is in some categories of cases where experts opinion may not be needed, for example, where the principle of res ipsa loquitur is applicable then the opinion of an expert may be done away with. Still, however, where merely on basis of medical record, it is difficult to reach the conclusion of medical negligence, an opinion of expert is essentially significant. We may also refer to Judgement of Supreme Court in Jacob Mathew Vs. State of Punjab & Anr. [(2005) 6 SCC 1], in order to illustrate the point which we have elaborated earlier. 14. Coming to the merits of the present case, it may be gathered that Smt. Jaswinder Kaur approached OP No. 1 Dr. Hemant Chopra for the first time in the midst of April 2001 with a complaint of sore throat. At that point of time, OP No. 1 Dr. Hemant Chopra had no reason to suspect any intestinal problem. He suggested certain tests. He, further prescribed endoscopy which was conducted by the Gastroenterology department of OP No. 2 Hospital. A reference letter issued by OP No. 1 Dr. Hemant Chopra is reproduced by the State Commission in para 10 of the impugned judgement. It is explicit that Smt. Jaswinder Kaur was suspected as patient of Hiatus hernia and, therefore, OP No. 1 Dr. Hemant Chopra requested Dr. S.S. Sidhu, M.D. in Gastroenterology to conduct the endoscopy on 18.04.2001. In other words, he did not avoid the endoscopy test of Smt. Jaswinder Kaur. The State Commission observed in para 16 as follows:- If OP No. 1 had treated her to be a case of esophagitis, then he would have referred her to Gastroenterology department there and then on 18.04.2001 when he had received the report of endoscopy but due to his own greed, he continued to treat her for soar throat. It is true that initially Smt. Jaswinder Kaur was not suffering from cancer. Even report of various tests revealed that she was no suffering from cancer but when OP No.1 had received endoscopy report on 18.04.2001 conducted by Dr. S.S. Sidhu suggesting superficial ulcer in mid and lower oesophagus, then he could have stopped treating her to be a case of dysphagia and should have referred to the Gastroenterology department. Having not done so, and after treating her for long period of 1 years, he sent her to gallows of death, and ultimately she developed cancer which led her to death on 22.01.2003. 15. We are of the opinion that the above observations of the State Commission are uncharitable to OP No. 1 Dr. Hemant Chopra and are unwarranted as well as not in keeping with the fact that on 18.04.2001 itself he had referred her to Dr. S.S. Sidhu, M.D. Gastroenterology for endoscopy. The endoscopy examination conducted by Dr. S.S. Sidhu ultimately showed following findings:- IMPRESSION Ulcerative Esophagitis with hiatus hernia Repeat Endoscopy 1 month 16. Needless to say, even Dr. S.S. Sidhu did not notice growth of cancerous cells at the relevant time which needed treatment of intestinal cancer. It appears that he suggested repetition of endoscopy after one month. Obviously, for at least one month after 18.04.2001, OP No. 1 Dr. Hemant Chopra had no reason to start any other line of treatment. The State Commission noticed from discharge report (Annex. C-10) that operation called rigid hyproscopy was conducted prior to discharge of Smt. Jaswinder Kaur. As a matter of fact, what appears from the impugned judgement is that State Commission laboured under wrong impression that Dysphagia is some kind of disease. The medical literature shows that it is not a disease as such but it is only a suspected cause of difficulty in swallowing which is just a symptomatic observation. The medical record does not show that any material was available to OP No. 1 Dr. Hemant Chopra and OP No. 2 Hospital so as to reach conclusion that Smt. Jaswinder Kaur was suffering from intestinal cancer. In fact, the State Commission observed that there was ulcer found in the food pipe even when Smt. Jaswinder Kaur was subjected to endoscopy in Arora Neuro Centre Pvt. Limited. Histopathology report C-22 dated 7.11.2002 indicated Squamous cell carcinoma-moderately differentiated-oesophagus. 17. Nobody will deny that ordinarily such a young woman of about 30 / 32 years could be suspected as patient of intestinal cancer particularly when her basic complaint was of sore throat when she approached OP No. 1, Dr. Hemant Chopra for the first time on 16.04.2001. It is important to note that she died on 22.01.2003 after the 3rd Chemotherapy was administered. It is important to note that she was shifted to Rajiv Gandhi Cancer Hospital, New Delhi on 18.11.2002. The State Commission observed that was too late and early treatment could have saved her life. In case of medical negligence, it is difficult to assume what could be the proper stage when the patient was required to be referred for obtaining detailed histopathology report. The observations of the State Commission appear to be based on surmises. 17. One more reason which appears to have influenced the impugned order is that OP No. 1 Dr. Hemant Chopra is only E.N.T specialist and it was necessary, therefore, to refer the patient immediately to Gastroenterology department. As seen earlier, in fact, he had referred her to Gastroenterology department on 18.04.2001 itself. It was argued that OP No. 1 Dr. Hemant Chopra was not competent to give any treatment to Smt. Jaswinder Kaur. We find it difficult to accept such argument. Since there was no independent medical expert examined by the complainants, Kulwinder Singh & others, the medical papers and the queries were referred to a team of medical expert of the All India Institute of Medical Sciences, Ansari Nagar, New Delhi. The medical experts have duly considered the relevant material. The answers to the queries would show that a young person with ulcerative esophagitis with hiatus hernia can have symptoms of dysphagia. In other words, the impression of OP No. 1, Dr. Hemant Chopra that the case was of dysphagia cannot be faulted with. The following observations to the question nos. 2 to 5 may be reproduced as under:- Q.2. Whether dysphagia is a symptom or an ailment and as to whether the treatment given to the patient by the appellant, i.e., PPI, Antacids was for Dysphagia or for ulcerative esophagitis with hiatus hernia, as diagnosed in endoscopy treatment is the standard treatment for ulcerative esophagitis with hiatus hernia or that the said treatment was falling short in any manner or was an improper treatment? Ans. Dysphagia is a symptom, PPI given is the standard and appropriate treatment for ulcerative esophagitis with hiatus hernia. Q.3. Whether after the receipt of the above said endoscopy report from Gastroenterology Department, can the patient be treated by the appellant being an ENT Specialist or that the same was only in the sole domain of Gastroenterologist and it be further probed and answered as to whether the problem oesophagus can only be treated by Gastroenterologist or the same can also be treated by ENT specialist, as the rigid endoscopy is the domain of ENT specialist and not that of Gastroenterologist? Ans. Gastro-esophagial reflex disease is quite common in any community. Patient with disease can go to any Internist, Gastroenterologist or an ENT Specialist. This disease can be treated by both Gastroenterologist or ENT specialist. The diseases of esophagus are generally treated by a Gastroenterologist. Flexible endoscopes are used now more often. Q.4. Whether subsequent repeat of endoscopy was required in the patient as per finding of ulcerative esophagitis with hiatus hernia, as reported in the Endoscopy Report of 18.04.2001 by the Gastroenterologist when there was no barrette esophagus? Ans. Yes, it would have been desirable if no improvement or worsening of symptoms is reported by the patient. Q.5. Whether the appellant being an ENT Specialist was competent to do rigid hypopharyngoscopy on the patient? Ans. Yes. 18. The report of the expert committee would make it clear that OP No. 1 Dr. Hemant Chopra was competent to treat the patient. We do not find any malafides in the actions of OP No. 1 Dr. Hemant Chopra and OP No. 2 Hospital. Even assuming that diagnosis was erroneous then also it could be said that there was error of judgement while giving treatment on basis of wrong diagnosis. The error could not be termed as gross medical negligence in view of the nature of the present case and the medical history of Smt. Jaswinder Kaur. 19. Taking over all view of the matter, we are of the firm opinion that the impugned order is improper, founded on wrong appreciation on the material placed on record and, therefore, is unsustainable in the eye of law. Consequently, the two appeals, i.e., FA No. 458 / 2007 and FA No. 581 / 2007 are allowed. The impugned order is set aside. FA No. 737 / 2007 preferred by Kulwinder Singh and others is dismissed. In the interest of justice we direct that any payment made to them under interim orders be not recovered by the insurers though there is no finding of any medical negligence as per the settlement of the insurance claims on non-standard basis and the payment shall be treated as adhoc payments. No costs. ..
(V.R. KINGAONKAR J.) PRESIDING MEMBER .
(VINAY KUMAR) MEMBER RS/