National Consumer Disputes Redressal
V. Narayana vs The Director, Sri Venkateswara ... on 10 July, 2012
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO.41 OF 2004 (From the order dated 01.10.2003 in Complaint No.27/1998 of the State Commission, Andhra Pradesh) V.Narayana Appellant Versus The Director, Sri Venkateswara Institute of Medical Sciences & Anr. Respondents BEFORE : HONBLE MR. JUSTICE ASHOK BHAN, PRESIDENT HONBLE MRS. VINEETA RAI, MEMBER For the Appellant : Mr.T.N.Rao, Advocate For the Respondents : Ms.T.Anamika, Advocate for R-1 Mrs.K.Radha, Advocate for R-2. Pronounced on 10th July, 2012 ORDER
PER VINEETA RAI, MEMBER This Appeal has been filed by V.Narayana (hereinafter referred to as the Appellant) being aggrieved by the order of the State Consumer Disputes Redressal Commission, Andhra Pradesh (hereinafter referred to as the State Commission) in original Complaint No.27/1998. The Director, Sri Venkateswara Institute of Medical Sciences and the Superintendent, TTD, Central Hospital are Respondents No.1 and 2 respectively.
In his complaint before the State Commission, Appellant/Complainant had contended that he had taken his eldest son V.N. Rushyendra Nath (hereinafter referred to as the patient) for diagnosis and treatment to Respondent No.2 i.e. TTD, Central Hospital, Tirupathi. However, Respondent No.2 failed to either correctly diagnose or treat the patient because of which Appellant approached Respondent No.1 i.e. Sri Venkateswara Institute of Medical Sciences where certain tests were conducted and medicines prescribed.
However, despite this, the patients condition did not improve and the Petitioner therefore, took him to Christian Medical College (CMC) Hospital, Vellore on 13.06.1997 where following tests, Appellant was informed that his son was suffering from advanced stage of Acute Myeloid Leukemia which is a cancer which affects the blood and bone marrow and to which he succumbed on 21.06.1997. According to the Appellant, the Respondents failure to correctly diagnose the disease and give proper treatment to his son amounted to both medical negligence and deficiency on their part and led to the tragic death of his son. Appellant therefore approached the State Commission and requested that the Respondents be directed to pay him an amount of Rs.20 lakhs for deficiency in service, medical negligence and costs.
Both Respondents denied the allegations made by the Appellant that due care and adequate diagnostics tests were not conducted on the patient because of which his cancer could not be detected in time. Respondent No.2 admitted that the Appellant had brought his son with a long standing complaint of Polyuria (frequent urination) for which routine tests for blood sugar, urine analysis and urine examination were conducted and which revealed only mild albuminuria and no other abnormalities. Since Respondent No.2s hospital was more like a primary healthcare centre with limited facilities, the patient was referred to the Department of Nephrology at Respondent No.1 for expert evaluation. Respondent No.1 has confirmed that the patient was examined in the Nephrology Department on 27.01.1997 with a history of frequency of urination besides constipation.
Clinical and physical examinations indicated that there was no anemia and the blood pressure was normal. A number of other tests were also conducted on the subsequent two days which included extensive Hematology tests where all parameters were found to be normal except the White Blood Cells(WBC) count which was 3400 cells/cumm whereas the normal limit is between 4000-11000 cells/cumm. There was no abnormality detected in the ultrasound, renal function or blood sugar.
Patient was however referred to the Gastroenterology Department as he had complained of incomplete defecation.
Detailed investigations were conducted in that Department as well which included ultrasound and a diagnosis of non-ulcer dyspepsia. Patient was administered treatment for habitual constipation. The Department of Urology also confirmed that nothing abnormal was detected after conducting tests but since the low W.B.C. count was indicative of an infection in the system, he was advised medicines and asked to come back for a review by the various Departments which he had visited but patient did not turn up for the follow up visits. He, however, again visited Respondent No.2 after about 4 months i.e. on 30.05.1997 with a complaint of Pyrexia (fever) of unknown origin for 5 days but he did not inform the senior doctor who examined him, of either his previous visits to the hospital or about the earlier diagnostic tests conducted.
Therefore, investigations were again conducted on the patient which included detailed blood tests, blood smear for malarial parasite, examination of urine for albumin, sugar and microscopy for bile salts and bile pigments. Since the clinical presentation was suggestive of respiratory illness, a chest X-ray was also taken and the patient was asked to consult the Chest Physician at Respondent No.1 hospital. Blood tests taken on that date again indicated only minor infection in the body and there was no evidence of any malignancy in the blood. The patient did not re-visit the hospital nor did he consult the Chest Physician as advised. According to the Respondents, it is well established that Acute Myeloid Leukemia can develop rapidly which appears to have happened in the instant case since abnormally low W.B. counts were detected for the first time at CMC, Vellore between 14.06.1997 to 16.06.1997. Therefore, there was no deficiency in the diagnosis and treatment of the patient in the Respondents Hospital/Institute and as stated earlier he was referred to various medical experts and given the required treatment on the basis of detailed diagnostic tests. In fact, it was the patient who was negligent in not following medical advice and not returning for follow-up review/treatment at Respondents/Institutes.
The State Commission after hearing both parties and on the basis of evidence recorded before it, concluded that there was no medical negligence on the part of the Respondents and dismissed the Appeal. The relevant part of the order of the State Commission reads as under:
We are of the view that the opposite parties have conducted necessary tests and there is no negligence on their part in treating the patient but he patient did not go back for review or follow up as directed. He did not also produce the previous prescription or treatment sheet in S.V.R.R. Hospital when he visited the second opposite party hospital for a second time on 03.05.1997 four months after the first visit and came with a new O.P. ticket No.26628 and with a different complaint i.e. fever for 5 days duration. He did not inform the previous history or treatment. Even when diagnosis was made by CMC, Hospital, Vellore that it is acute Myeloid Leukamia, his uncle got him discharged stating that they will come back for admissions on 19.06.1997 and they never came back.
P.W.1 was not present when the patient visited the opposite parties either on 28.01.1997 or 03.05.1997, he was also not present when the patient visited CMC Hospital, Vellore. Therefore, his evidence cannot advance the allegations in the complaint. There is no evidence adduced by the complainant which lends support to his version. For all these reasons, we are constrained to hold that the complainant failed to establish any negligence on the part of the opposite parties. Of course, we have no doubt that so far as the second opposite party is concerned, which is a free medical centre, the complainant cannot claim to be a consumer, so on this could also, the complaint against the second opposite party fails.
Hence, the present appeal.
Counsel for both parties were present. Counsel for Appellant reiterated that Respondents themselves have admitted that they were unable to detect that the Appellants son had Acute Myeloid Leukemia despite his having been examined by several medical experts working there and also undergoing a series of diagnostic and other tests. This indicated both professional incompetence and negligence on the part of the Respondents in not reaching a correct diagnosis of the patients serious medical condition especially since the haematology reports indicated a low W.B.C. count which is a clear symptom of cancer of the blood (leukemia). It is because of Respondents negligence that the disease was detected only by the doctors at CMC Hospital, Vellore when it had reached an advanced stage and it was too late to save the life of the Appellants son. Counsel for Appellant further contended that the State Commission erred in not taking into account these important medical facts indicative of negligence and deficiency in the treatment of the patient by the Respondents as also the fact that Acute Myeloid Leukemia cannot develop suddenly and the patient was obviously suffering from this disease right from the time when he first visited Respondents/Institutes in January, 1997.
We have considered the submissions of the learned Counsel and have carefully gone through the evidence on record.
While admittedly only preliminary tests were conducted in Respondent No.2s Hospital because of its limited medical facilities and staff, it is also a fact that the patient was, without delay, referred to Respondent No.1s Institute which is a specialty hospital with all facilities. At that Institute on the basis of complaints articulated by the patient, initially of Polyuria and thereafter of bowel disorders, he was referred to specialists in Gastroenterology, Nephrology and Urology Departments where he underwent detailed blood, urine and renal functioning tests which clearly ruled out any serious medical ailment expect for slightly abnormal W.B.C. count which was 3400/cumm as against the normal of 4000/cumm-11000/cumm and was indicative of an infection in the system and for which he was given medication and necessary treatment. In view of these facts, it is not possible to accept the Appellants contention that the patient was not properly examined and adequate steps were not taken to diagnose his medical condition during his visits to the Respondents Hospitals/Institutes. It is also on record that the patient did not return for follow-up treatment as advised and even during his second visit to Respondent No.2s Hospital/Institute on 30.05.1997 with a different complaint of having fever of 5 days duration, it is on record that he was examined by senior doctors of Respondent No.1/Institute and again subjected to detailed laboratory investigations to detect the cause of the fever which included, apart from blood tests, chest X-ray, also tests to rule out Malaria etc. Even at that time, except for a somewhat low W.B.C. count, no abnormality was detected.
Counsel for Appellant had contended that since a low W.B.C. count was a clear indication of malignancy, this illness should have been detected at least during the second visit. In this connection, we have gone through the medical records of the blood tests and note that except for somewhat low W.B.C. count, there was no presence of leukocytes or decrease in platelets in the blood test reports to suggest Acute Myeloid Leukemia. However, it is also a fact that only a couple of weeks later when the patient visited CMC Hospital, Vellore with a complaint of fever of 20 days and weight loss, blood tests indicated that he was suffering from Acute Myeloid Leukemia because at that time there was presence of leukocytes in the blood as also an alarming drop in the Red Blood Cells, platelets etc. Respondents have sought to explain this development by stating that Acute Myeloid Leukemia is characterized by rapid abnormal growth in the W.B.C. count leading to a drop in the Red Blood Cells and this disease can develop very quickly. We find force in this contention of the Respondents because as per medical literature on the subject, it has been documented that Acute Myeloid Leukemia can develop within a period of few days (Source: Wikipedia Research Papers of UCSF Medical Centre, USA etc.). Apparently, this is what happened in the instant case because there can be no other plausible reason to explain how detailed blood tests in the Respondents Hospital/Institutes did not show the present of leukocytes and other abnormalities in the blood, but in subsequent blood test reports a few weeks later in CMC Hospital, Vellore all symptoms of Acute Myeloid Leukemia were present. Thus, it would be reasonable to conclude that the reason for the case not being detected in the Respondent No.1s Institute was not because of any medical negligence but because there was no clinical or diagnostic evidence of Acute Myeloid Leukemia at that time.
Apart from this, what constitutes medical negligence is now well established through a litany of judgments including of the Honble Supreme Court. For example, the Honble Supreme Court in Jacob Mathew v. State of Punjab, (2005) 6 SCC 1 has observed as follows:
(3) 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 practices. 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.
(4) The test for determining medical negligence as laid down in Bolam case, WLR at p.586 holds good in its applicability in India.
Thus, even applying these principles in the instant case, it can be seen that there is no evidence to conclude that the Respondents were guilty of either medical negligence or deficiency in service since the patient was comprehensively examined both clinically and through various diagnostic and related tests and all efforts were made by a competent group of professional doctors to treat his medical condition. Failure to detect the patient with Acute Myeloid Leukemia occurred either because at that time the disease had yet not developed or because it was in such an early stage and with symptoms indicative of various other medical ailments that no definite diagnosis was possible for which Respondents cannot be held responsible. Keeping in view these facts, we agree with the reasoning and order of the State Commission and uphold the same. The First Appeal is dismissed with no order as to costs.
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(ASHOK BHAN J.) PRESIDENT Sd/-
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(VINEETA RAI) MEMBER /sks/