State Consumer Disputes Redressal Commission
Md. Yahiya Qureshi Medak vs M/S. Yashoda Super Speciality Hospital ... on 27 May, 2009
A A.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD. F.A. 967/2006 against C.D 123/2003, Dist. Forum-I, Hyderabad Between: Md. Yahiya Qureshi S/o. Md. Ilious Qureshi Age: 35 years, Civil Contractor H.No. 1-2-58, Hasad Street Narayankhed, Medak Dist. *** Appellant/ Complainant And 1). M/s. Yashoda Super Speciality Hospital Rep. by its Managing Director Malakpet, Hyderabad 2) Dr. B. Mahender Reddy Chief Surgeon, M/s. Yashoda Super Speciality Hospital Malakpet, Hyderabad 3) The New India Assurance Company Ltd. Divisional Office at 5-2-174/2 Madan Mohan Buildings, R.P. Road, Secunderabad 4) The National Insurance Company Ltd. Rep. by its Branch Manager 4th Floor, Taramandal Complex Saifabad, Hyderabad. *** Respondents/ Opposite Parties Counsel for the Appellant: M/s. Gopi Rajesh Associates Counsel for the Resps: M/s. P. Keshava Rao (R1 & R2) M/s. M. Jeevan Reddy (R4) HONBLE SRI JUSTICE D. APPA RAO, PRESIDENT SMT. M. SHREESHA, MEMBER
& SRI K. SATYANAND, MEMBER WEDNESDAY, THIS THE TWENTY SEVENTH DAY OF MAY TWO THOUSAND NINE Oral Order: (Per Honble Justice D. Appa Rao, President) *****
1) The unsuccessful complainant is the appellant.
2) The case of the complainant in brief is that he is a resident of Narayanakhed of Medak District. When he had pain in abdomen, vomiting with giddiness, cold clammy extremities he approached R1 Yashoda Super Speciality Hospital, Malakpet on 10.2.2001 which in turn directed the complainant to R2 Dr. B. Mahender Reddy, Civil Surgeon for treatment. R2 had suggested him to admit in the hospital as in-patient. He diagnosed as acute abdomen peritonitis duodenal perforation and suggested to undergo Laporotomy by which he could open the abdomen for the purpose of diagnosis to find out the actual disease. Besides that he had suggested several investigations for which he deposited Rs. 35,000/- besides further expenditure of Rs. 8,000/-. When R2 was about to conduct Laporotomy for which he had to incur an expenditure of Rs. 1 lakh and when he was ready to undergo the operation, his family doctor Dr. Venkatesham visited the hospital , after going through the case sheet, he opined that the doctor had diagnosed wrongly. He made him to discharge from R1 hospital. He got him admitted in Sai Vani Hospital under the supervision of Dr. Sudhaker. He diagnosed that he was suffering from Acute Pancreatitis Sec to Colecystitis and gave treatment. On that he became alright, and was discharged from the hospital on 15.2.2001. Since R2 had diagnosed wrongly and made him to pay abnormal amounts, he issued notice for which he gave reply with false allegations. Therefore, he filed the complaint claiming Rs. 5 lakhs towards compensation for mental agony, and financial loss etc.
3) R1 and R2 hospital authorities and the doctor respectively filed written version resisting the case. They denied each and every allegation made in the complaint. While admitting that the complainant was admitted in their hospital with a complaint of sudden onset of pain in the abdomen, vomiting with giddiness, cold clammy extremities, on examination, he was diagnosed as having Pancreatitis. After explaining the line of treatment and various investigations, he was subjected to tests like C.T. Scan, Serum analysis and ultra sound scan. They all suggested negative towards Pancreatitits. On that he was advised for exploratory Laparotomy, alternatively, Peritonitis was suspected. In fact, he was administered IV fluid, O2 inhalation injection. When ultra sound examination of abdomen was taken free fluid was found in the abdomen. Pancreas was found normal. A major surgical profile was also done. Since the tests show negative towards Pancreatitis he was suspected with hollow viscous perforation and there was need for emergency Laparotomy. Since there was no improvement in his condition, he was shifted to AMC unit. He was referred to Dr. Shashikanth, Cardiologist. It was found that he had no cardiac problem. Thereafter, he was referred to Dr. Samar, Gastroenterologist, where serum analysis was conducted. CT scan of abdomen was taken. It was found that Pancreas was normal. Since it was suspected that he was suffering from hollow viscous perforation or acute appendicitis, he was advised for exploratory Laparotomy for which he did not give consent and latter he left the hospital against medical advise. There was no negligence either on his part or on the part of hospital and necessary tests were conducted. No wrong diagnosis was made. The claim was exaggerated. The allegation that one Dr. Venkatesham visited the hospital and opined that the diagnosis was wrong. At the time when he was discharged, no endorsement about the said allegation was made in the case sheet. The complainant left the hospital against medical advise. The hospital was insured for professional indemnity with R4.
Therefore, they prayed for dismissal of the complaint with costs.
4) Though R3 was initially impleaded, after coming to know that R4 was the insurer, it was impleaded as proper party. It filed a memo adopting the counter of R1 & R2.
5) The complainant in proof of his case filed his affidavit evidence and that of Dr. Venkatesham and got Exs. A1 to A21 marked, while R1 & R2 filed the affidavit evidence of R2 the doctor and got Ex. B1, admission record maintained by R1 marked.
6) The Dist. Forum after considering the evidence placed on record, opined that the very record filed by the complainant did not disclose that R2 had diagnosed wrongly. Dr. Venkatesham who filed affidavit alleging wrong diagnosis was not produced for cross-examination. Since R2 had taken all precautions by conducting various tests, it cannot be said that the complainant was diagnosed wrongly. There was no expert evidence to show that R2 had diagnosed it wrongly. Consequently, the complaint was dismissed, however, without costs.
7) Aggrieved by the said decision, the complainant preferred this appeal contending that the Dist. Forum did not appreciate the facts in correct perspective. The fact that the complainant was made to spend huge amounts for unnecessary tests and finally diagnosed wrongly. In fact, he was suffering from Acute Pancreatitis Sec to Colecystitis. He was diagnosed as acute abdomen peritonitis duodenal perforation. He was unnecessarily made to spend huge amounts and therefore he was entitled to compensation. Dr. Venkatesham a third party filed his affidavit evidence stating that it was wrong diagnosis. Therefore, he prayed that the appeal be allowed.
8) The point that arises for consideration is whether R2 diagnosed wrongly and was liable to pay compensation?
9) It is an undisputed fact that on the intervening night of 9/10.2.2001 the complainant admitted in the hospital of R1 while he was suffering from upper pain in abdomen with vomiting etc. R2, on examination suspected Pancreatitis. It is also not in dispute that various tests were conducted in order to rule out any other problems and confirm the exact ailment with which the complainant was suffering from. R2 had diagnosed acute abdomen peritonitis duodenal perforation. In the discharge summary marked as Ex. B1, it was categorically mentioned that he needs hospitalization for further management. R2 Dr. R. B. Mahender Reddy, Chief Surgeon attached to R1 hospital had administered medicines, got various tests conducted and diagnosed as Pancreatitis and advised exploratory laparotomy.
The complainant did not agree, excused himself and got discharged.
Later, he himself admitted in Sai Vani Hospital where one Dr. Sudhaker and Dr. Indra Mohan diagnosed it as Acute Pancreatitis Sec to Colecystitis vide Ex. A3. Though the complainant was discharged from R1 hospital on 11.2.2001 at about 5.40 p.m., on the very same day, he admitted himself in Sai Vani Hospital, complaining pain in the abdomen, vomitings since two days. It looks as though he did not inform about his treatment in R1 hospital. The discharge summary issued by Sai Vani hospital, marked as Ex. A3 discloses that he was having Acute Pancreatitis, Sec. to holecystitis. Though number of investigations were conducted in Sai Vani Hospital as evident from Ex.A3, for the reasons not known, the said record was not filed. Only the bill he paid towards the treatment amounting to Rs. 6,400/- was filed.
10) R2 diagnosed it as acute abdomen peritonitis duodenal perforation. The doctors in Sai Vani Hospital diagnosed it as Acute Pancreatitis Sec to Colecystitis. From this he alleges that R2 had wrongly directed him to undergo unnecessary laporatomy operation incurring an amount of Rs. 1 lakh, However, when he joined in Sai Vani Hospital without any operation he was cured.
11) R2 filed his affidavit evidence alleging that he made correct diagnosis and he got all the tests conducted to rule out various ailments.
12) The complainant did not dispute about the credentials of R2. Though R2 had filed his affidavit confirming the diagnosis and the treatment made by him as evidenced from the discharge sheet Ex. B1, no effective cross-examination could be made to show that he diagnosed wrongly. Importantly, the complainant did not examine the doctors of Sai Vani Hospital who attended on him to confirm that the diagnosis made by R2 was incorrect, instead he filed a third party affidavit of Dr. K. Venkatesham who said to be his family doctor at Narayankhed of Medak District. Except alleging that diagnosis of R2 was made without any signs or symptoms in order to extract money, he did not tender himself for cross-examination. There is no reason why the complainant did not examine Dr. K. Venkatesham in order to prove that the diagnosis made by R2 was incorrect. No doubt Dr. Venkatesham has given his own reasoning in order to state that R2 made wrong diagnosis, but he did not tender himself for cross-examination. Had he been cross-examined, R2 might have proved that his diagnosis was correct. Importantly, the complainant ought to have examined the doctors of Sai Vani Hospital to prove that R2 had diagnosed wrongly, which made him to pay unnecessary amounts towards various tests. The evidence of PW1 was contradicted by R2 by examining himself before the Dist. Forum.
Except suggesting that his diagnosis was incorrect no expert evidence or medical authorities were suggested to state that his diagnosis was incorrect and was made only to extract money. It is not as though R2 did not refer him to any Gastroenterologist. Evidently, he was referred to Gastroenterologist who himself made investigations. It is not in dispute that C.T. Scan was conducted on the complainant. When suggested to R2 that C.T. scan of abdomen will not reveal that the patient was having acute Pancreas, he denied it. He also asserted that serum analysis is necessary for diagnosing acute Pancreatitis. Because all the tests were negative he advised laparotomy surgery. No doubt, while R2 diagnosed as acute abdomen peritonitis duodenal perforation, the doctors at Sai Vani Hospital diagnosed as Acute Pancreatitis Sec to Colecystitis. Unless any medical expert is examined, it cannot be said that such diagnosis was incorrect. It is not known why the complainant did not examine any of the doctors of Sai Vani Hospital, in order to prove that the diagnosis made by R2 was incorrect. It is not sufficient to show that some other doctors made different diagnosis. From that it cannot be concluded that first diagnosis made by R2 was incorrect. In this context it is relevant to rely a decision of Supreme Court in Jacob Mathew Vs. State of Punjab, (2005) 6 SCC-1.
A professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practises. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.
13) To sum up the complainant has not alleged that R2 and other doctors who conducted investigations were not competent to evaluate or diagnose the disease. No evidence was let in to show that R2 or any other doctor was negligent while making investigations that they were unnecessary. The complainant by filing discharge summary made by Sai Vani Hospital, cannot be made to say that investigations made by R2 were unnecessary and were made only to extract money. The affidavit evidence of third party, whom the complainant refers was not examined before the Dist. Forum, nor tendered for cross-examination in order to show that there was negligence on the part of R2 in diagnosing the ailment of the complainant. It is not sufficient if two doctors make two different observations in regard to a disease. What all the complainant had to prove is that there was carelessness or negligence in arriving at the findings.
14) The decision of Supreme Court in Indian Medical Association vs. V.P. Shantha should not be understood to mean that doctors should be harassed merely because their treatment was unsuccessful or caused some mishap which was not necessarily due to negligence. In fact in the aforesaid decision it has been observed:
In the matter of professional liability professions differ from other occupations for the reason that professions operate in spheres where success cannot be achieved in every case and very often success or failure depends upon factors beyond the professional mans control.
15) No doubt the complainant was undoubtedly made to pay the amounts to a tune of Rs. 43,000/- for various tests.
However, the ailment was neither diagnosed nor sub-sided. Later, by spending Rs. 6,400/- at Sai Vani Hospital, he got the ailment subsided and cured. However, we cannot rule out a remote possibility of unnecessarily subjecting him to various tests which made him to pay huge amounts. There is a tendency to make money by referring to various unwanted and unwarranted superfluous tests. This has become order of the day. However there is no definite evidence in this regard in this case. On mere conjunctures we cannot order compensation. The Supreme Court taking cognizance of this fact in Martin F. DSouza Vs. Mohd. Ishfaq reported in I (2009) CPJ 32 (SC) held :
The courts and Consumer Fora are not experts in medical science, and must not substitute their own views over that of specialists. It is true that the medical profession has to an extent become commercialized and there are many doctors who depart from their Hippocratic oath for their selfish ends of making money. However, the entire medical fraternity cannot be blamed or branded as lacking in integrity or competence just because of some bad apples.
It must be remembered that sometimes despite their best efforts the treatment of a doctor fails. For instance, sometimes despite the best effort of a surgeon, the patient dies. That does not mean that the doctor or the surgeon must be held to be guilty of medical negligence, unless there is some strong evidence to suggest that he is.
Since the complainant could not establish any medical negligence on the part of R2, we do not see any mis-appreciation of fact by the Dist. Forum in this regard.
16) In the result the appeal fails and is accordingly dismissed. However, no costs.
1) _______________________________ PRESIDENT
2) ________________________________ MEMBER
3) _________________________________ MEMBER Dt. 27. .05. 2009.