National Consumer Disputes Redressal
Dr.Sanjeev Manktala vs Dr.Ajit Sood & Ors. on 21 August, 2012
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO.167 OF 2010 (From the order dated 08.04.2010 in Complaint No.71/2009 of the State Commission, Punjab) Dr.Sanjeev Manktala Appellant Versus Dr.Ajit Sood & Ors. Respondents BEFORE: HONBLE MR. JUSTICE ASHOK BHAN, PRESIDENT HONBLE MRS. VINEETA RAI, MEMBER For the Appellant : In-person For the Respondents : Mr.Bharat Sobti & Mr.Rajan Singh, Advocates Dr.Ajit Sood, R-1 in-person. Pronounced on 21st August, 2012 ORDER
PER VINEETA RAI, MEMBER Dr.Sanjeev Manktala, Appellant herein who was the complainant before the State Commission, has filed this First Appeal being aggrieved by the order of the State Consumer Disputes Redressal Commission, Punjab (hereinafter referred to as the State Commission) which had dismissed his complaint against Dr.Ajit Sood and others, Respondents herein.
FACTS:
In August, 2008 following complaints of weakness and breathlessness, Appellant got his blood tested from Vishal Diagnostic Centre, Ferozepur City wherein he was found to be anemic and with Occult Blood positive. He was prescribed medicines for the same but when there was no improvement and he developed unusual pain in his abdomen, he was admitted as an indoor patient in Amar Hospital, Ferozepur for conservative treatment. He was thereafter advised to contact Dr.Ajit Sood, Gastroenterologist (hereinafter referred to as the Respondent No.1) of Daya Nand Medical College & Hospital (Respondent No.3 herein). After payment of requisite fees, Respondent No.1 advised the Appellant to undergo Upper GI Endoscopy which was conducted by one Dr.Varun Mehta (hereinafter referred to as Respondent No.2) and which revealed that he had Esophageal Ulcer with Celiac Disease. Since the Appellant did not respond to the treatment prescribed in Respondent No.3/Hospital, he again consulted Respondent No.1 in that Hospital wherein the treatment was changed and he was advised to visit the Hospital after one month. On 27.09.2008, the Appellant accordingly visited the Hospital since the abdominal pain had increased and a CT-Scan; blood test and colonoscopy was conducted.
Although the colonoscopy (which is a test that allows the doctor to examine the inner lining of the large intestine and to some extent part of the terminal ileum with the help of a thin, flexible tube) was to be conducted by Respondent No.1, it was in fact conducted by Dr.Varun Mehta, Respondent No.2 and Respondent No.1 was not even present to supervise this complex procedure. As per the Colonoscopy Report and the biopsy samples taken from two different sites as also a Barium Meal Test, Appellant was diagnosed with Tuberculosis for which he was put on Anti Tuberculosis Treatment (ATT) for six months.
Two biopsy samples taken during the course of the colonoscopy did not indicate any malignancy. However, Appellant contended that Respondents failed to take biopsy sample from the actual site of the disease. Appellant did not get any relief and he thereafter consulted two other Gastroenterologists who advised a repeat colonoscopy/laparoscopy. Appellant therefore requested the Respondents to conduct a repeat colonoscopy based on the medical opinion of two doctors but Respondent No.1 insisted on continuing with the treatment for Tuberculosis and also Crohns disease and categorically stated that there was no need for another colonoscopy. When the pain persisted, Appellant decided to consult doctors at Sir Ganga Ram Hospital, Delhi wherein on the basis of a colonoscopy and tests from the biopsy samples including one from the stricture i.e. the affected (diseased) area, Appellant was informed that he was suffering from Cancer for which he was advised immediate surgery. Post-surgical specimen report as also a report from the Rajiv Gandhi Cancer Institute & Research Centre also confirmed that Appellant had a cancerous growth which had extended to outside the ileal wall. Appellants contention was that if the repeat colonoscopy had been done by the Respondents when the Tuberculosis medicine did not work, the Cancer would have been detected at an early stage instead of which it had advanced to a late T-3 stage.
Therefore, alleging medical negligence and deficiency in service, Appellant filed a complaint before the State Commission and requested that Respondents be directed to pay him Rs.3,48,180/- towards reimbursement of amount spent on treatment along with interest @ 12% per annum till the date of actual payment, Rs.30 lakhs for harassment and mental agony, Rs.10 lakhs towards future medical expenses as also the litigation costs.
The State Commission during the course of the proceedings, requested to the Director, Post-Graduate Institute of Medical Sciences (PGI Hospital), Chandigarh to refer the case for expert opinion to a Medical Board of experts in terms of the judgement of Honble Supreme Court in Martin F.DSouze Vs. Mohd. Ishfaq 2009 (2) RCR Criminal Page 64. This 3 Member Medical Board reached the opinion that the patient was treated appropriately. The State Commission relying on the evidence filed before it and particularly, the report of the Medical Board of expert doctors at PGI, Chandigarh concluded that there was no medical negligence on the part of the Respondents and dismissed the complaint.
Hence, the present First Appeal.
Appellant who was present in-person and Counsel for Respondents, made oral submissions. Appellant submitted before us that the State Commission erred in concluding that no case of medical negligence was made out by essentially relying on the Report of the Medical Board consisting of the three doctors from PGI, Chandigarh since it did not take into account the admitted fact that during the colonoscopy, Respondents did not take a biopsy sample from the diseased area and biopsy samples were only taken from areas which were normal. Therefore, because of a wrong diagnosis, Appellant had to unnecessarily take ATT drugs which were not at all required by him. On the other and, the colonoscopy conducted and the biopsy samples taken at Sir Ganga Ram Hospital, Delhi including from the diseased area immediately detected carcinoma. Had the Respondents/Doctors followed a similar procedure or conducted a repeat colonoscopy as advised by two other doctors, the Appellant would not have had to suffer for so many months and early cancer detection could have facilitated a more assured cure. As a result of this obvious negligence and callousness, the Appellant has had to undergo mental agony, harassment and heavy expenditure and an uncertain future because of the late detection of the disease.
Counsel for Respondents on the other hand stated that the State Commission as a matter of over-abundant precaution had got the entire medical case looked into by a Board of Specialists of a premier institute i.e. PGI, Chandigarh and after carefully reviewing the entire case, the Board had rightly concluded that there was no deficiency in the Respondents treatment of the Appellant and that the same was appropriate. The doctors at Sir Ganga Ram Hospital, Delhi have also not indicated any negligence, mistreatment or wrong diagnosis on the part of the Respondents. In fact, the findings and interpretation of the colonoscopy conducted at Sir Ganga Ram Hospital, Delhi are the same as those conducted by the Respondents Hospital.
The Respondents Hospital is also one of the premier institutes and has a number of super-specialties.
Respondents/Doctors themselves are super-specialists in the field of Gastroenterology and were fully skilled to diagnose and treat medical ailments including in the present case. There was no deficiency in the colonoscopy and biopsies conducted by the Respondents/Doctors. In the absence of any positive Histopathological Report of Cancer, the Appellant could not have been put on anti-Cancer treatment. Cancer of the ileum is rarest of the rare types of cancers and extremely difficult to detect in its very early stages which would perhaps plausibly explain why it could not be detected despite the standard diagnostic tests and procedures.
Respondents specifically denied Appellants contention that the Report of the Medical Board was biased because one of the Respondents/Doctors was working as a junior to a Doctor of the Board.
We have considered the submissions made by the Appellant and Counsel for Respondents and have carefully gone through the evidence on record. The fact that the Appellant took treatment from the Respondents/Doctors and underwent a colonoscopy as also biopsies whereafter he was given treatment for Tuberculosis is not in dispute. It is also an admitted fact that 6 months later, the Appellant was diagnosed with Cancer of the ileum following diagnostic tests including a colonoscopy and biopsies conducted at Sir Ganga Ram Hospital, Delhi. The State Commission relying on a Report of a Board of Medical Experts from PGI, Chandigarh which had concluded that there was no medical negligence on the part of the Respondents in the treatment of the Appellant had dismissed the complaint. We have also gone through the Report of this Medical Board and we note that in reaching its conclusions, the Medical Board has taken note of the diagnostic tests as also the treatment conducted both at the Respondents hospital as also at Sir Ganga Ram Hospital. It was only after duly considering reports from both hospitals that the Board had concluded that the Appellant was treated appropriately and there was no case of medical negligence. The Appellant who has contested the finding of the Medical Board and on whom there was onus to do so did not produce any medical expert or evidence to controvert or contradict these findings of the Medical Board except to verbally state that it was a biased report without giving any specific proof of the same. In the absence of this, we agree that the State Commission had rightly relied on the report of the Medical Board that there was no medical negligence in the instant case. It is also worth noting that Sir Ganga Ram Hospital has nowhere adversely commented on the medical treatment of the Appellant by Respondents. What constitutes medical negligence is now well established through a number of judgments of the Honble Supreme Court including in Jacob Mathew Vs. State of Punjab & Anr. (2005) 6 SCC 1. Essentially while examining medical negligence, we are required to see; (i) Whether the doctor in question possessed the medical skills expected of an ordinary skilled practitioner in the field at that point of time; (ii) Whether the doctor adopted the practice (of clinical observation diagnosis including diagnostic tests and treatment) in the case that would be adopted by such a doctor of ordinary skill in accord with (at least) one of the responsible bodies of opinion of professional practitioners in the field and (iii) whether the standards of skills/knowledge expected of the doctor, according to the said body of medical opinion, were of the time when the events leading to the allegation of medical negligence occurred and not of the time when the dispute was being adjudicated (Bolam Vs. Friern Hospital Management Committee (1957)1 WLR 582).
Applying these principles in the instant case, we note that the Respondents/Doctors were well-qualified to deal with this case and that they conducted the required and essential clinical and diagnostic tests which were the same as conducted in Sir Ganga Ram Hospital, Delhi to assist them in their diagnosis and treatment. The Honble Supreme Court in Kusum Sharma & Ors. Vs. Batra Hospital & Medical Research Centre & Ors. (2010) 3 SCC 480 has enunciated the principle that in the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of another professional doctor. In the instant case, no doubt a diagnosis of Cancer on the basis of the same tests was made by a subsequent hospital but since due care and professional skill was exercised by Respondents in conducting the clinical and other diagnosis/tests and based on these, the treatment of the Appellant was done by well-qualified doctors (Respondents) on the basis of their best professional judgment, we agree with the findings of the State Commission that no case of medical negligence against the Respondents is established. The Appellant on whom there was onus to do so and who also had the opportunity to produce medical expert or evidence to contradict/controvert the findings of the Medical Board before the State Commission, has failed to do so. For the above reasons, we uphold the order of the State Commission and dismiss this First Appeal. No costs.
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(ASHOK BHAN J.) PRESIDENT Sd/-
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(VINEETA RAI) MEMBER /sks/