State Consumer Disputes Redressal Commission
Vimal Kumar Jain vs Dr. Ajay Gupta & Anr. on 10 September, 2012
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION
PANDRI, RAIPUR
(A/11/3002)
Appeal No.721/2011
Instituted on 14.11.11
Vimal Kumar Jain, S/o: Late Shri Lalchand Jain,
R/o: Harnabandha Road, Shikshak Nagar, Durg,
Tah. & Dist. DURG (C.G.) ... Appellant.
Vs.
1. Dr. Ajay Gupta, Latakunj, Medical Complex,
Opp. Over Bridge, Station Chowk
DURG (C.G.)
2. The Oriental Insurance Co. Ltd,
Through: Branch Manager, Branch Durg,
Tah. & Dist. DURG (C.G.) ... Respondents.
PRESENT: -
HON'BLE JUSTICE SHRI S.C. VYAS, PRESIDENT
HON'BLE SHRI V.K. PATIL, MEMBER
COUNSEL FOR THE PARTIES: -
Shri R.K. Bhawnani, for the appellant.
Shri A.K. Trivedi, for respondent no.1.
Shri L.K.Joshi, for respondent no.2.
ORDER
Dated: 10/09/2012 PER: - HON'BLE JUSTICE SHRI S. C. VYAS, PRESIDENT This appeal is directed against order dated 18.10.2011, passed by District Consumer Disputes Redressal Forum, Durg (hereinafter called "District Forum" for short) in complaint case No.17/2010, whereby the complaint of the appellant herein alleging negligence in treatment of the appellant by the respondent amounting to deficiency in service and seeking compensation for that has been dismissed.
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2. Indisputably, the complainant took treatment from the respondent / OP between the period from 16.07.08 to 04.02.09 for complaints of pain and itching, diagnosed as genital wart and balenoposthitis. The allegation of the complainant in the complaint was that he was having some pain and infection in his penis, so he contacted the respondent Doctor for treatment on 16.07.08 and a fee of Rs.100/- was paid by him to the respondent Doctor. The Doctor diagnosed infection as the wart and started treatment for the same. He prescribed painkillers and antibiotics and instructed to take those medicines for a week. Later on when the complainant did not feel relief, he again contacted the respondent Doctor on 24.07.08 and then a prescription was given. Similarly, he contacted the Doctor on different occasions up to 02.08.08 and when no relief was felt by him he again contacted the Doctor and then the Doctor on 09.08.08 prescribed some acid so that the wart can be burnt. That treatment was also started and additional fee was charged for that. But, even after treatment by acid for 10 days, the trouble remained as it was. The complainant continued taking treatment from the respondent Doctor till 04.02.09. During the entire period no other medical tests were prescribed by the respondent Doctor and all treatment was prescribed merely on the basis of presumption without any proper diagnosis. Ultimately on 20.02.09, the complainant contacted another physician Dr. R.S. Naik, who immediately realized necessity of biopsy and other examinations.
// 3 // Sample of tissues was taken from the affected part and it was subjected to biopsy. In that examination it revealed that it was a case of squamous cell carcinoma and was not a simple wart then the complainant took treatment in S.L. Raheja Hospital, Mumbai. Operation was performed, but as the carcinoma cells had already spread throughout his penis, so his penis was amputed. Later on the disease also spread to his thigh and in another operation treatment was given to that portion also. The allegation against the respondent was that during a long period, he failed to prescribe necessary tests and fail to diagnose the disease properly and thus, committed deficiency in service in providing medical attendance, though he was collecting fee on every occasion. Compensation of Rs.20,00,000/- was prayed from the respondent Doctor.
3. The respondent / OP in the written version has refuted the allegations of medical negligence and averred that the co-brother of the appellant Dr. Ujjwal Patni was having clinic in the premises of the respondent, so on his recommendation being a family of a person of the same profession, free treatment and free prescription was given to the complainant, who came to the respondent Doctor through Dr. Ujjwal Patni. Thus, the complainant was not a consumer of the respondent / OP because no fee was charged by the respondent from him and services were not availed on payment of fee. It has also been // 4 // averred that there was history of extra marital relation and thereafter infection and wart. So after clinical examination and on the complaints of infection, itching and pain medicines were prescribed. It has also been averred that in the month of October and November 2008 when the complainant came to the respondent then at that time he was advised to have biopsy test. That advice was available on the prescription slips given to the complainant and the complainant has deliberately not produced those prescription slips before the District Forum. It has also been averred that the complainant was taking treatment from other allopathic Doctors and also Homeopathy medicines during the entire period on different dates. When he was not feeling relief from the treatment of the respondent / OP then he was required to consult some other Doctor which he must have done and that is why he came to the respondent after a gap of period of two months. It has also been averred that diagnosis and treatment was according to the standard medical practice and no negligence has been committed by the respondent. It has also been averred that the respondent was covered under the Professional Indemnity Policy issued by the Oriental Insurance Co. Ltd.
4. On the basis of pleadings of the respondent / OP, the insurance company was also impleaded as OP in the complaint case and the insurance company has also denied the allegations of the complainant.
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5. Learned District Forum after having considered the material placed before it by all parties and also after taking into consideration the report of Medical Board, came to the conclusion that the complainant has utterly failed to establish the allegations of medical negligence against the respondent Doctor and on this finding the complaint has been Dismissed.
6. We have heard arguments advanced by all parties and perused the record of the District Forum.
7. It would be useful to refer first of all the report of Committee of experts constituted by Dean of Medical College, Raipur, which is available in the record of the District Forum at page No.179. This report was sent to the District Forum along with letter dated 31.01.2011 by the Dean of the Medical College, Raipur. The Committee of experts in its report, which is Hindi has expressed the opinion that Dr. Ajay Gupta in his prescription slips which are on letter head has described the disease in short form G.W. and P.W., which appears to be diagnosis of genital wart and on which podowart was applied. It has also been observed by the Committee that on different dates antibiotics, B-complex and symptomatic medicines were prescribed by the Doctor, which usually are ineffective on genital wart. It has // 6 // also been observed that in case of genital wart podowart is required to be applied on weekly basis under supervision of a Dermatologist. It has also been observed that after 2-3 weekly cycles of podowart if no clinical improvement was seen on genital wart, then keeping in mind the differential diagnosis, it would have been appropriate to prescribe biopsy. It has been observed that on the letterhead of the concerning Doctor, there appears no prescription of biopsy. It has also been observed that the concerning Doctor has not referred the case to any other expert, even after observing that there was no relief in the ailment and from the troubles.
8. This opinion is not supported by affidavit of any Doctor. From this opinion it appears that the Committee was of the opinion that podowart was to be applied on weekly basis for 2-3 weekly cycles and in case no improvement was seen, biopsy should have been suggested and such suggestion is not there on the prescription slips.
9. Learned District Forum in this regard has concluded that as per the case of the complainant, he took treatment from the appellant on different dates and even in the months of October and November 2008 treatment was given. It has been observed that prescription slips of the month of October and November 2008 have not been filed by the complainant and defence of the OP Doctor was that in those // 7 // prescription slips he prescribed for biopsy and the complainant has not filed those prescription slips, therefore it was concluded that there was prescription of biopsy and that is why the complainant has not deliberately produced those prescription slips before the District Forum, nor those prescription slips were produced before the Medical Board and that is why the Medical Board has opined that biopsy was not prescribed.
10. From the record we find that in the complaint in paragraph No.2, it has been stated that on 20.08.09, when even after consuming all medicines prescribed by the respondent Doctor, the complainant did not feel any relief and the problems aggravated then the OP Doctor had assured him that thereafter he would be required to come for the last before him and then he will be relieved from his problems, but even after all these assurances, the complainant continued taking treatment from the OP / respondent on 30.08.08, 09.09.08 and 25.09.08, then in the month of October and November 2008 and thereafter on 16.12.08 also and took treatment on payment of fees and prescription slips of those dates were given to him on the letter head of OP/respondent, but the problem continued and aggravated. Even then he continued going to the OP / respondent and continued taking treatment from him, as per the prescription slips of different dates.
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11. This statement in the complaint shows that the complainant visited the clinic of the OP / respondent in the month of October and November 2008 also and prescription slips were given but the prescription slips of October and November 2008 were not brought on record by the complainant. The case of the OP is that those prescription slips are containing advice of biopsy and that is why those prescription slips have deliberately not been produced by the complainant. We find force in this defence of the OP. 12 We find that the prescription slips are on the letterhead of the OP Doctor and in the first prescription slip dated 16.07.08. The diagnosis was balenoposthitis and G.W. (Genital Warts) 3 month EMC (Extra Marital Contact) 3 months back. This history which was given to the Doctor shows that the complainant was having extra marital contact with some other lady three months back and the result was in the form of problem in the genital, which were warts and balenoposthitis, which means inflammation of the glands penis and prepuce as per Loyal's Medical Dictionary and wart is a localized overgrowth of the epidermis and papillae which is caused by a virus or it may be a benign tumor. Thus, the complainant was having a localized overgrowth of epidermis on his genital organ and because he was having extra marital contacts with another lady three months back so wart was probably the result of that contact and then // 9 // balenoposthitis. So normally a Doctor of ordinary prudence will start treating such problem by antibiotics and local application of medicines etc., which was done by him. From 02.08.08 podowart was applied and another time it was applied on 30.08.08. That treatment was only up to 30.08.08. Initially the medicines were prescribed with an interval of 7 to 8 days and after 09.08.08 they were prescribed for 10 days, so the Doctor was consulted on 20.08.08. Again medicines were prescribed for 10 days and then he was consulted on 30.08.08. After 10 days, as prescribed, the Doctor was consulted on 09.09.08 and medicines were prescribed for 15 days. Then again on 26.09.08 the respondent was consulted and on that date medicines were prescribed for 10 days only, but thereafter the Doctor was not consulted and the next prescription slip is that of 16.12.08. There appears to be a gap of around 3 months including those 10 days. When 16.12.08 also the same Doctor was consulted then he should have some prescription slip also and if the prescriptions were available with the complainant and he has not produced those prescription slips then this statement of the Doctor cannot be disbelieved that he prescribed biopsy on those prescription slips and that is why the complainant deliberately withhold those prescription slips. The complainant was not an indoor patient and he used to come to the respondent from time to time and he visited on many occasions. He was always free to consult any other Doctor might be more expert in that field than the respondent. His co-
// 10 // brother is also a physician in dental side, who also has good knowledge of medical field, and was very well able to consult anyone anywhere. The prescription slip of 04.02.09 also shows that it was informed by the complainant to the Doctor that he was also taking homeopathic treatment and thus another pathy of treatment was also tried by him and some treatment was taken. Considering these facts, the District Forum has come to the conclusion that as the complainant has not produced prescription slips of October and November 2008 and in those slips there was advise for biopsy by the OP Doctor, so it cannot be said that in not advising biopsy the the OP has committed negligence. Such conclusion of District Forum cannot be said to be erroneous.
13. Annexure-5 is the prescription slip of Dr. R.S. Naik, dated 20.02.08. He diagnosed carcinoma penis as there was complaint of growth of penile region for one year and prescription of surgery with guarded prognosis. On general examination he found that there was growth of glans extending to shaft of the penis, ulcerated hard inconsistency inguinal lymph nodes. Biopsy was advised and the surgical pathology report shows that carcinoma penis was found. Cytology report also shows that the smear showed atypical squamous cells with features suggestive of squamous cell carcinoma. Then Annexure-8 is the Discharge Summary of S.L. Raheja Hospital, where // 11 // also carcinoma penis was the diagnosis. Surgery was performed by Dr. Sanjay Sharma of total penis amputation and some medicines were prescribed. Other organs were also examined by radiologist on 31.08.09 i.e. around 5 months later by Spiral CT of whole abdomen and then it was found heterogeneously enhancing, small, soft tissue density mass with blurred margins in the left inguinal region situated anterior to the left femoral vessels. Then, it was also found to be carcinoma and then its surgery was also performed.
14. All the papers relating to the treatment taken by the complainant at different Hospitals were brought on record including Tata Memorial Hospital, Department of Radiodiagnosis. In none of the treatment papers it has been stated that as to for how long the carcinoma penis was existing and for which period. From the treatment papers it appears that when the patient presented in Tata Memorial Hospital on 10.03.09 for examination by biopsy, then from 02.03.09 onwards different parameters were noted by the Hospital. It has been observed on 23.02.09 that on that date CT Scan was done, then penis was found bulky with heterogeneous enhancement, few small hypodense lesions in both inguinal region lymph nodes. It has also been stated that as per the present history the patient was taking treatment from skin specialist local application and penile biopsy was // 12 // performed on 23.02.09. On biopsy well differentiated squamous cell carcinoma was found.
15. Thus, from the whole medical history and report of biopsy it appears that the complainant was taking treatment from a skin specialist for skin problem by consulting from time to time for a long period as out door patient and though there was no occasion to come to the conclusion that he was suffering from cancer the suggestion for the biopsy was given. The complainant was having his relative as medical practitioner and he was always free to consult any other medical practitioner also.
16. So far as the line of treatment which has been adopted by the respondent is concerned, some medical literature has been brought on record. Colour Atlas of Sexually Transmitted Diseases, L.K. Bhutani, Professor and Head, Department of Dermatology and Venereology, All India Institute of Medical Sciences, New Delhi, has been filed before us as Annexure R-3, which shows that the condition of penis along with sexually transmitted disease and some growth over around penis on front portion which can be treated as genital warts and in the literature it has been stated that "Genital warts are caused by the human papilloma virus; similar to / common skin wart virus; sexually transmitted; common in both sexes". Its incubation period is variable // 13 // and 2-3 months is an average. The treatment is "to destroy virus containing wart tissue; physical destructive modalities: electrocautery, cryotherapy or antimitotic agents - podaphyllin and 5-fluorouracil". There appears no specific time period prescribed for it. Another book written by Kenneth A. Arndt and Kathryn E. Bowers named as Manual of Dermatologic Therapeutics with Essentials of Diagnosis, Sixth Edition has also been shown. At page No.247 under chapter 36, Warts, it has been stated that "Weekly painting of the lesion with 25% podophyllum resin (see Chap.40, Keratolytic, Cytotoxic, and Destructive Agents, sec.X) in compound tincture of benzoin is an effective therapy." It has also been stated that "Treated lesions may become inflamed and painful during the following 2 to 3 days. It is wise to treat only parts of a large condyloma to prevent disabling pain, but it is important to repeat treatment every 7 to 10 days until all lesions are gone". Thus it appears that this therapy is required to be repeated in every 7 to 10 days until all lesions are gone and there is no standard limit. Another book written by Samuel L. Moschella and Harry J. Hurley, has also been brought to our notice. Chapter 12 of the book Viral and Rickettsial Infections under the head Variations in the Clinical Course of Warts, it has been observed that "In addition to their morphologic patterns, warts have strange and unpredictable courses in respect to spontaneous disappearance, dissemination, and persistence". It has also been observed that the authors of the book // 14 // have notice occurrences of "a single wart may appear and persist relatively unchanged for many years. It then ordinarily disappears as the patient ages." It has also been observed that "In addition to spontaneous disappearance in variable periods of time, warts not infrequently disappear after pure suggestion therapy". It has also been observed that "after removal of one or more warts, the lesions may not recur, or they may reappear within a few weeks, or within a few months to years." Under the head Treatment, it has been stated that "There is no satisfactory treatment of warts. Recurrences are common and not therapeutic method appears to have any greater success than any other". Some treatments have been prescribed also. So far as verrucous carcinoma is concerned, in this regard in another chapter 28, Tumors of the Skin, in the same Book, it has been stated that "Verrucous carcinoma represents a well differentiated form of squamous cell carcinoma which usually arises in one of the following three situations: (1) as a progression from giant condyloma acuminatum of the anogenital area (vide supra), (2) as a progression from an oral cavity hyperplastic lesion such as florid oral papillomatosis, and (3) as an enlarging verrucous lesion arising de novo on the foot". Thus, so far as 2 and 3 are concerned they are in respect of other parts of the body. It has been observed that "ordinary squamous cell carcinoma arising in sun-damaged skin is a relatively slowly growing lesion with a reported incidence of metastasis of 0.5 to // 15 // 3 per cent". Clinical differential diagnosis of squamous cell carcinoma includes keratoacanthoma, basal cell epithelioma, other malignant skin tumors, and granulomas. Although most lesions can be differentiated histopathologically, differentiation from keratoacanthoma may be difficult both clinically and histopathologically. Keratoacanthomas, as a rule, grow rapidly and spontaneously regress, whereas squamous cell carcinoma undergoes a slower but progressive enlargement".
17. From the aforesaid literatures, it appears that if the respondent had diagnosed the disease of the complainant as a genital wart after extra marital contact with another lady three months back, because there were symptoms of Balenoposthitis also, then such diagnosis and the treatment thereafter, given for it, cannot be said to be a great negligence on the part of a Doctor of ordinary prudence because itching and pain was present in penis and so treatment by antibiotics and podowart was prescribed along with painkillers and vitamins.
18. So far as instructions for use of podowart is concerned, the respondent Doctor has brought on record Annexure-7 which contains instructions for use of podowart as prescribed by the Company itself, which is the manufacturer of podowart. It simply says that the podowart was to be used under medical supervision. This has been clearly mentioned in English and Hindi both languages. So the only // 16 // requirement was that podowart was to be used under medical supervision. The respondent is a medical professional duly qualified as skincare medical practitioner as per the available material on record and therefore he was competent to apply podowart on the affected part under his supervision, which he has done. It is true that he is MBBS, but apart from being an MBBS he has also undergone several courses, seminars and has participated in workshops of Dermatologists, therefore he can very well be termed as experienced dermatologist and if such medical person has prescribed and applied podowart then his this conduct cannot be termed as negligence on his part.
19. After going through the material available on record and medical literatures produced before us we are satisfied that as a medical person of ordinary prudence, the respondent / OP has diagnosed and treated the complainant as an outdoor patient from time to time and during that period the complainant was also free to consult any other expert or physician. There appears appropriate material to show that biopsy was also suggested by the respondent Doctor and that is why prescription slips of two months have not been brought on record by the complainant.
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20. It is well settled that simply because the treating Doctor has adopted another line of treatment or that treatment could not work effectively, it cannot be held that he committed negligence. In the case of Jacob Mathew Vs. State of Punjab and Anr., III (2005) CCR 9 (SC), the question of medical negligence has been dealt by the Hon'ble Supreme Court in detail and the principles for holding a Doctor guilty has been considered. Tests laid down in Bolam V. Friern Hospital Management Committee, reported in 1957(2) All England Law Reports 118, has been approved by the Hon'ble Supreme Court in the aforesaid case to the effect that "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". It has also been observed by Hon'ble Supreme Court in the case of V. Kishan Rao Vs. Nikhil Super Speciality Hospital & Anr., III (2010) CPJ 1 (SC), in paragraph No.18 that "it is also held that in the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and a doctor is not negligent merely because his conclusion differs from that of other professional men. It was also made clear that the true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care". Applying the aforesaid principle of law on the facts of the // 18 // present case, we are satisfied that the District Forum has not committed any error in dismissing the complaint.
21. Therefore, this appeal fails and is dismissed. No order as to cost.
(Justice S.C.Vyas) (V.K. Patil)
President Member
/09/2012 /09/2012