State Consumer Disputes Redressal Commission
Deepak Memorial Hospital & Medical ... vs Yogesh Kumar Bhatt on 27 July, 2007
IN THE STATE COMMISSION: DELHI IN THE STATE COMMISSION: DELHI (Constituted under section 9 clause (b) of the Consumer Protection Act, 1986) Date of decision: 27.07.2007 Appeal No.07/249 (Arising from the order dated 05.03.2007 passed by District Forum(East) Saini Enclave, Delhi in Complaint Case No.1081/2006) Deepak Memorial Hospital & .. Appellant. Medical Research Centre through Mr. Sanjay Kumar 5, Institutional Area, with Mr. Ramnesh Jerath, Vikas Marg Extension, Delhi advocate. Versus Sh. Yogesh Kumar Bhatt Respondent S-630, School Block , Shakarpuri, New Delhi. CORAM: Justice J.D. Kapoor, ... President Ms. Rumnita Mittal Member
1. Whether reporters of local newspapers be allowed to see the judgment?
2. To be referred to the Reporter or not?
Justice J.D. Kapoor, President(ORAL)
1. On the charge of medical negligence in as much as that the treatment was given on the wrong diagnosis of the disease not once but twice, the District Forum has vide impugned order dated 05.03.2007 directed the appellant to pay Rs.50,000/- as symbolical compensation and Rs.10,000/- as cost of litigation.
2. Feeling aggrieved the appellant has preferred this appeal.
3. The allegations of the respondent that led to the impugned order, in brief, were that he was suffering from fever, cold and eye problems in June 2006. He visited appellant hospital for treatment and was admitted as indoor patient for eight days from 03.07.2006 to 10.07.2006. The appellant diagnosed the respondent as suffering from Pneumonia. However, the condition of the respondent did not improve even after discharge. He again visited the appellant hospital for treatment. X-ray and blood tests were carried out. The doctors of the appellant opined that he was suffering from tuberculosis. The consulting doctor of appellant called the respondent after a month. The medicines prescribed for tuberculosis caused allergic problem in the body of the respondent. Feeling no respite from his ongoing ailment, he left for his home town i.e. Pauri Garhwal but to no respite. After return from his home town, he consulted doctors at Sir Ganga Ram Hospital, Delhi. He remained as indoor patient from 02.09.2006 to 09.09.2006. The doctors of Sir Ganga Ram diagnosed that he was suffering from Sarcoidosis and uveitis on left eye and not from tuberculosis and pneumonia. After treatment in Sir Ganga Ram Hospital, the condition of respondent improved. The respondent pleaded that he incurred a sum of Rs.23,344/- due to wrong diagnosis by appellant and was entitled for its refund besides compensation.
4. In its defence the appellant took the plea that the blood tests investigations, X-ray of chest, revealed very high TLCC 19000 P82C and favoured pneumonia and further that on 04.07.2006 on the basis of the clinical picture including cough/fever/weakness along with radiological finding, anti tuberculosis treatment was started. Appellant pleaded that anti tuberculosis treatment was started on admission on 04.07.2006 and not on 24.07.2006. Further that there is also pathological similarity between sarcoidosis and tuberculosis and therefore it was not a case of medical negligence or wrong diagnosis.
5. It is pertinent to mention at this stage that the treating doctor appeared before District Forum and when confronted as to why he started anti tuberculosis treatment on 04.07.2006, when he was not sure about the existence of the tuberculosis, his reply was as under:
When the complainant responded to the treatment of tuberculosis favourably as per the expectations of OP, he was diagnosed as patient of tuberculosis.
6. While assailing the impugned order, the learned counsel for the appellant has referred to International Medical Literature under the title Tuberculosis diagnosis. Sarcoidosis TB or not TB. The relevant observations as to the diagnosis of these disease are as under:
Diagnosis:-
Preliminary diagnosis of sarcoidosis is based in the patients history, routine tests, a physical examination and a chest x-ray.
The doctor confirms the diagnosis by eliminating other diseases with similar features. These include such ganulomatous disease as berylliosis ( a disease resulting from exposure to beryllium metal), tuberculosis, farmers lung disease (hypersensitivity pneuomonitis), fungal infection, rheumatoid arthritis, rheumatic fever and cancer of the lymph nodes (lymphoma)
7. In this regard, counsel for the appellant has taken us through the prescription prescribed by the appellant which is at page
56. According to the prescription there was complaint of fever for 16 days, dry cough, excessive weakness. There is no reference of any past illness of significance. This prescription is dated 03.07.2006. Learned counsel has also referred to the summary of case by Ganga Ram Hospital.
This case summary is dated 09.09.2006 whereas he was admitted on 02.09.2006. The counsel for the appellant has placed emphasis on the history given by the respondent to the effect that he had complaint of fever since 5-6 months. Thus according to the counsel, the history given by the respondent to the appellant was contrary to what he disclosed to Sir Ganga Ram Hospital.
Another discrepancy pointed out by the counsel for the appellant is non-production of the prescription slips dated 21.07.2006, 25.07.2006 dates on which the respondent had visited the appellant hospital and therefore appellant is not sure as to what was diagnosed and for what disease the treatment was given to the respondent.
8. However, apart from this, the learned counsel for the appellant further contended that treatment of tuberculosis does not have any side effect whereas the treatment of Sarcoidosis will have life long side effects because the treatment of Sarcoidosis is based on steroids and that is given for life long and therefore if there was any imperfection in diagnosing the patient as tuberculosis the treatment given to him was given because of there being no side effects to the patients. It is further contended that the medical literature provides that the doctor confirms the diagnosis of sarcoidosis by eliminating other disease with similar features. These include granulomatous diseases as berylliosis(a disease resulting from exposure to beryllium metal), tuberculosis, farmers lung disease (hypersensitivity pneuomonitis), fungal infections, rheumatoid arthritis, rheumatic fever and cancer of the lymph nodes (lymphoma). In this regard following references have been adduced from the medical literature:-
No single test can be relied on for a correct diagnosis of sarcoidosis. X-ray and blood test are usually the first procedure the doctor will order. Pulmonary function tests often provide clues to diagnosis. Other tests may also be used, some more often than others.
USUAL SYMPTOMS:
Shortness of breath(dyspnae) and a cough that wont go away can be among the first symptoms of sarcoidosis. But sarcoidosis can also show up suddenly with the appearance of skin rashes. Red bumps (erythema nodosum) on the face, arms, or shins and inflammation of the eyes are also common symptoms. It is not unusual, however for sarcoidosis symptoms to be more general. Weight loss, fatigue, night sweats, fever, or just an overall feeling of ill health can also be clues to the disease.
Course of the disease:
In general, sarcoidosis appears briefly and heal naturally in 60 to 70 percent of the cases, often without the patient knowing or doing anything about it. From 20 to 30 percent of sarcoidosis patients are left with some permanent lung damage. In 10 to 15 percent of the patients, sarcoidosis can become chronic.
When either the granulomas or fibrosis seriously affect the function of a vital organ the lungs, heart, nervous system, liver or kidneys for example sarcoidosis can be fatal. This occurs 5 to 10 percent of the time.
9. It is further contended by the counsel that cases of Sarcoidosis are very rare whereas TB is most common and therefore first impression the doctors gathers after perusing history and pathological records of the patient is that he may be suffering from TB.
10. As regards the statement made by the doctor, before District Forum, we are not inclined to take note of the reply given by the doctor to the query of the District Forum as the medical negligence has to be tested on the criteria which have been culled out by us in some of the starting cases from English decisions viz. Bolams test and decisions of Supreme Court in Jacob Mathews case and several other cases, which are as under:
(i) Whether the treating doctor had the ordinary skill and not the skill of the highest degree that he professed and exercised, as everybody is not supposed to possess the highest or perfect level of expertise or skills in the branch he practices?
(ii) Whether the guilty doctor had done something or failed to do something which in the given facts and circumstances no medical professional would do when in ordinary senses and prudence?
(iii) Whether the risk involved in the procedure or line of treatment was such that injury or death was imminent or risk involved was upto the percentage of failures?
(iv) Whether there was error of judgment in adopting a particular line of treatment? If so what was the level of error? Was it so overboard that result could have been fatal or near fatal or at lowest mortality rate?
(v) Whether the negligence was so manifest and demonstrative that no professional or skilled person in his ordinary senses and prudence could have indulged in?
(vi) Everything being in place, what was the main cause of injury or death. Whether the cause was the direct result of the deficiency in the treatment and medication?
(vii) Whether the injury or death was the result of administrative deficiency or post-operative or condition environment-oriented deficiency?
11. In our view any medical professional who undertakes to treat a patient is supposed to be aware of the basic rudimentary medical procedure and practice and in modern days when the medical technology has advanced to massive heights the doctors should not jump to conclusion about the disease which can be easily detected from the medical tests and other symptoms and start giving treatment which is likely to result in side effects that the remedy itself may become worse than the disease.
12. We are yet to come across a case where wrong medicines administered upon a person for a disease which he is not suffering from would not have any side effects. Sometimes even medicines meant for the disease have side effects. The medicines if not given in proper quantity or dose and not administered properly has side effect.
13. If a patient is being given treatment on the basis of wrong diagnosis he suffers not only financial loss but also on account of mental agony, emotional suffering, and physical discomfort and therefore has to be compensated adequately.
14. In the instant case the patient approached the appellant on 31.07.2006 for treatment and on 04.07.2006 the appellant started giving treatment of tuberculosis knowing it well that there is significant distinction though the thinly veiled between tuberculosis and Sarcoidosis, that is why all the medical literatures prescribe that before resorting to the treatment of tuberculosis, the medical professionals shall have a complete medical evaluation which includes medical history, physical examination, chest X-ray, tuberculin skin test, x-ray, surgical biopsy, microbiologic smears and cultures. So far as the sarcoidosis is concerned the cause of this disease is still unknown in the medical world. From Wikipedia, the free encyclopedia, we find that any organ can be affected however, granumolas most often appears in the lung or in the lymph nodes. Symptoms can occasionally appear suddenly but usually appear gradually. The clinical course varies and ranges from asymptomatic disease that resolves spontaneously to a debilitating chronic condition that may lead to death.
15. In the instant case the appellant has failed to produce any documentary evidence as to the basic tests that are required to be undertaken before declaring the patient suffering from tuberculosis. There is vast difference in the treatment of tuberculosis and Sarcoidosis. Failure of any medical expert to take the minimum precaution of subjecting a patient to the requisite and mandatory tests besides medical history and the history told by the patient and any short coming, inadequacy in this regard amount to deficiency in service, which in common parlance known as medical negligence.
16. Here the respondent suffered for 5-6 months because of the wrong prescription, wrong treatment, wrong diagnosis and ultimately he had the relief from a hospital where he was declared to be not a patient of tuberculosis.
17. Foregoing reasons persuade us to dismiss the appeal being devoid of merit. The payment shall be made within one month from the date of receipt of this order.
18. Bank Guarantee/FDR, if any, furnished by the appellant be returned forthwith.
19. A copy of this order as per the statutory requirements be forwarded to the parties free of charge and also to the concerned District Forum and thereafter the file be consigned to Record Room.
Announced today on 27th day of July 2007.
(Justice J.D. Kapoor) President (Rumnita Mittal) Member Tri