National Consumer Disputes Redressal
Dr. Kurien Joseph & Anr. vs Govindarajan on 3 April, 2013
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 36 OF 2008 (Against the order dated 05.12.2007 in O.P. No. 176/1994 of the State Consumer Disputes Redressal Commission, Chennai) 1. Dr. Kurien Joseph 2. Joseph Nursing Home 10-A, Dr. Gurusamy Road Chennai-600031 Appellants Versus Govindarajan S/o Chakranpani No. 150, Raja Street Jothi Ramalingam Nagar Perambakkam-631402 Respondent BEFORE: HON'BLE MR. JUSTICE ASHOK BHAN, PRESIDENT HON'BLE MRS. VINEETA RAI, MEMBER For Appellants : Mr. T. Srinivasa Murthy, Advocate with Mr. Krishna Dev, Advocate For Respondent : Mr. S. Natana Ranjan, Advocate Pronounced on 3rd April, 2013 ORDER
PER VINEETA RAI, MEMBER
1. This First Appeal has been filed by Dr. Kurien Joseph & Another, Appellants herein and Opposite Parties before the State Consumer Disputes Redressal Commission, Chennai (hereinafter referred to as the State Commission) being aggrieved by the order of that Commission which had accepted the complaint of medical negligence filed against them by Govindarajan, Respondent herein and Original Complainant before the State Commission.
2. In his complaint before the State Commission, Respondent had submitted that his daughter G. Ushanandhini (hereinafter referred to as the Patient) was admitted in Appellant nursing home on 16.08.1992 with complaints of stomach pain and menstrual discharge although she was pregnant. Respondent came to know from one Dr. V.C. Balasubramanium, to whom Appellants had referred her case, on 23.11.1992 that the medical treatment of the Patient by the Appellants was not correct since she was given treatment for cancer although she was not suffering from the same, as a result of which the Patient died at a young age. Being aggrieved because of the medical negligence and lack of proper treatment resulting in the Patients death, Respondent filed a complaint before the State Commission and stated that Appellants be directed to pay the Respondent a sum of Rs.10 Lakhs on account of untold agony and loss caused to the Respondent and also taking into account the young age of the Patient who was gainfully employed as a teacher.
3. Appellants on being served filed a written rejoinder challenging the veracity of the complaint as also the allegation of medical negligence. It was stated that the Patient was admitted in Appellant nursing home on 16.08.1992 with a history of 45 days amenorrhea, giddiness and severe abdominal pain. An ultrasound scan showed that she had ectopic pregnancy with internal bleeding.
Therefore, on 17.08.1992 an emergency laparotomy was done, during which the ruptured corneal pregnancy was removed and sent for pathological test to Dr. V.C. Balasubramaniam, Chief Pathologist, Government Medical Hospital. Patient recovered and was discharged on 22.08.1992 with an advice to take iron and vitamin tablets and to come for a review check-up after 10 days. However, she failed to come for the same until 12.09.1992 when she again visited the Appellant nursing home with complaints of fever, vomiting and abdominal swelling for 5 days, during which period she had been treated by another Doctor, who had prescribed antibiotics. On examination in the Appellant nursing home it was found that the Patient had abdominal mass about 4 inches diameter above the uterus.
Dilatation & Curettage (D&C) could not be done in this case as the mass was just adjoining the uterus and there were chances of perforating the uterus during this procedure. Taking this into account this fact and following receipt of the pathological report dated 24.08.1992 from Dr. V.C. Balasubramaniam that the specimens sent for test were suggestive of Choriocarcinoma i.e. cancer, the Patient was started with the course of chemotherapy. Following this, her condition improved and the mass also decreased in size. On 23.03.1992 Patient came back to the Appellant nursing home with complaints of difficulty in breathing and abdominal pain and an ultrasonography indicated that the uterus had further enlarged and both ovaries showed multiple cystic lesions.
Therefore, a second round of chemotherapy was given from 23.09.1992 to 27.09.1992 when she was discharged with a detailed treatment chart indicating the course of action that she must continue.
After discharge it was learnt that the Patient got admitted to the KMC Hospital where she received treatment but no details were made available to the Appellants. On 28.10.1992 another ultrasound was done on the Patient and although the cyst had reduced in size, the uterus was still enlarged and, therefore, she was advised for admission in the Appellant nursing home, which she did not heed. A repeat ultrasonography done on 16.11.1992 again confirmed the enlarged uterus and the cysts. On 23.11.1992 Patient was brought to the Appellant nursing home with difficulty in breathing, abdominal pain and vaginal bleeding. She had not continued the prescribed treatment and an ultrasound showed that the large mass in the abdomen above the uterus had increased in size.
A firm diagnosis of Chronic Carcinoma (Trophoblast) was made and though the Patient was promptly advised to get admitted in the Appellant nursing home, she was taken home against medical advice and she passed away 2 days later. All these facts were suppressed in the complaint. Patient was given right treatment for carcinoma based on a clear medical diagnosis of the same, following pathological and other tests, which clearly indicated that there were strong markers indicating carcinoma. Chemotherapy being the accepted line of treatment in such cases was given and there was no medical negligence in the treatment and care of the Patient, which was done taking into account her health and safety.
4. The State Commission after hearing the parties and on the basis of evidence produced before it, including the oral evidence and cross-examination of the Appellant doctor and the Respondent, concluded that the Appellants were guilty of medical negligence and deficiency in service. Relevant parts of the order of State Commission are reproduced:
12. No medical report has been produced to conclude that Usha Nandhini was suffering from cancer. The test, Ex.B5, relied on by the opposite party itself says that prior to starting therapy a full blood count is required and renal and hepatic function must be assessed. Thyroid function should be measured. The blood group of the patient and her partner responsible for the most recent or molar pregnancy is required for the prognostic score. The opposite parties attempted to wriggle out by stating that the patient was not suffering from molar pregnancy. The opposite parties had not taken any steps to measure thyroid function or find the blood group of her partner.
13. We are satisfied that the initial onus has been discharged by the complainant/s. The first opposite party has not substantiated his stand that it was a case of cancer and that chemotherapy treatment was absolutely necessary in the context of the ailment of the deceased Usha Nandhini. The first opposite party not having established conclusively that the deceased was suffering from cancer, it has to be found that chemotherapy was ill advised to be tried on the deceased. We therefore hold that the opposite parties had been negligent in treating the patient and this had been the cause for the death of the patient.
The State Commission, therefore, directed the Appellants to pay a sum of Rs.5 Lakhs to Respondent as compensation within a period of 8 weeks from the date of the order failing which the amount would carry interest @ 9% per annum. Rs.3000/- were awarded as litigation costs.
5. Being aggrieved by the order of State Commission, the present first appeal has been filed.
6. Learned Counsels for the parties made oral submissions.
7. Learned Counsel for the Appellants argued vehemently and at length that the State Commission erred in concluding that there was medical negligence by not adequately appreciating the evidence on record, which clearly indicated that the Patient had cancer for which she was rightly given chemotherapy. It was pointed out that when the Patient came to Appellant nursing home with complaints of abdominal pain, fever and amenorrhea, tests confirmed that she had ectopic pregnancy. An emergency laparotomy was, therefore, conducted, following which products of conception, which included multiple sections were sent for pathological investigation and as per the report dated 24.08.1992 it was confirmed that appearances of the specimen were suggestive of Chroiocarcinoma.
Further, urine and other tests conducted on the Patient confirmed the diagnosis of trophoblastic disease, for which treatment i.e. administration of chemotherapy was started, to which the Patient also responded. The State Commission erred in concluding that trophoblastic disease is not the same as cancer since as per medical literature trophoblastic disease is in fact carcinoma.
It was specifically denied that chemotherapy for treatment of cancer was whimsically started without carrying out all the necessary tests. In fact there were several important markers which clearly indicated that the Patient had carcinoma. These included the ectopic pregnancy, the fact that the Patient had a large mass in the abdomen above the uterus which had increased rapidly in size and urine & blood tests which indicated grossly elevated hCG levels. Counsel for the Appellants also stated that it was dangerous to remove a specimen of the mass or cyst for biopsy to confirm carcinoma because this could lead to hemorrhaging or perforation of the uterus.
As per medical literature on the subject which was filed in evidence, it is safer to treat patients for such carcinoma with chemotherapy rather than to risk biopsying a metastasis. It was under these circumstances that chemotherapy was started and the Patients condition had also started improving.
Further, the State Commission erred in not taking note of the fact that it was the Patient who did not come for review check-ups and instead went to other hospitals for treatment and also got a self-discharge against medical advice. She also did not follow the treatment regimen which was given to her for which Appellants cannot be held responsible. The medical treatment of the Patient for carcinoma was as per standard medical case practice and treatment was given after clinical and diagnostic tests, which indicated that she was suffering from cancer. Therefore, the finding of the State Commission that the Appellants were guilty of medical negligence is without merit and deserves to be set aside.
8. Counsel for the Respondent on the other hand stated that the pathological report on which the Appellants have relied, namely the first report of Dr. V.C. Balasubramaniam dated 24.08.1992, did not give a clear diagnosis that the Patient was suffering from cancer. In fact the report stated that the pathological examination of the multiple specimens only indicated that the appearances were suggestive of Choriocarcinoma and there was a question-mark thereafter. The report also specifically advised that this provisional finding needed to be correlated with the clinical picture and confirmed with biological test in dilutions. Appellants failed to conduct these tests as was admitted by the Appellant Doctor himself during his cross-examination before the State Commission. Appellant Doctor also admitted in cross-examination that enlargement of the uterus need not necessarily be due to cancer. It was further admitted that no Oncologist was consulted in the matter. On the other hand, there is a definite finding based on the second pathological report of Dr. V.C. Balasubramaniam dated 23.11.1992 that the Patient did not have cancer since the pathological examinations conducted at the Institute of Pathology confirmed that there was no evidence of malignancy. Under these circumstances, there is no escaping the fact that there was medical negligence on the part of Appellants in giving wrong and irrational medical treatment to the Patient for a disease which she did not have and the rounds of chemotherapy given to her caused untold damage to her and were also responsible for her death. The State Commission had rightly concluded that this was a case of medical negligence and the present First Appeal having no merit deserves to be dismissed.
9. We have carefully considered the submissions of learned Counsel for both parties and have also gone through the evidence on record, including the medical literature on the subject. It is not in dispute that the Patient was admitted in the Appellant nursing home on 16.08.1992 and following tests a laparotomy was conducted to end the ectopic pregnancy, which was causing the problems and the specimens of the sections taken out during this procedure were sent for pathological examinations. It is also not in dispute that Patient was given chemotherapy since the Appellants reached a diagnosis based on the first pathological report of Dr. V.C. Balasubramaniam dated 24.08.1992 that the specimens sent had appearances which were suggestive of carcinoma and following examinations, which indicated elevated levels of hCG as also the increase in the size of the mass in the uterus. According to the Appellants, these were important and more than adequate indicators to confirm that the Patient had cancer and that there was no need for other tests, including biopsy, which could have caused further damage to the Patient. We are unable to accept this contention of the Appellants. The first pathological report dated 24.08.1992 which is filed in evidence does not conclude categorically that the Patient had carcinoma.
In fact, it only states that there were some appearances in the specimens which were indicative of carcinoma but these needed to be correlated with other tests before reaching a clear finding to this effect. In this connection, the Appellant Doctor has himself admitted in his cross-examination that he did not conduct these tests because the Patient came a week later than the time fixed by Appellant Doctor for conducting the same and by that time she was very ill. We also note that while during cross-examination Appellant Doctor admitted that enlargement of the uterus and ectopic pregnancy need not necessarily be due to cancer yet in the instant case it was primarily on the basis of these very symptoms that Patient was administered 5 cycles of chemotherapy by him.
The Appellant Doctors reason for not conducting a biopsy of the abdominal mass or the cysts was on the ground that it could have caused severe bleeding and also cited medical literature in support. However, it is medically well established that the only way to determine if a growth is cancerous is to remove a sample of it and conduct a biopsy on it*.
(Source : American Cancer Society Wikipediacancer.org) We further note that the second pathological report dated 23.11.1992 clearly indicated that the Patient had no malignancy and, thus, confirming the complaint of the Respondent that the Appellants started chemotherapy without taking due care to confirm that the Patient had cancer.
10. What constitutes medical negligence is now well established through a number of judgments of this Commission as also of the Honble Supreme Court. Based on the touchstone of the Bolams test, one of the principles is that 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. In the instant case, despite specific advice of the Pathologist to correlate the provisional finding of carcinoma with the clinical picture and conduct biological test in dilutions of the Patient, Appellants failed to heed this advice and did not conduct the required tests nor did they consult an Oncologist or get biopsy done, which is the common procedure undertaken in cases of suspected cancer of this nature involving mass in the abdomen and growths. Such a procedure may have an inherent risk but this is not adequate reason to not conduct the same especially when the ultrasound indicated that apart from the mass there were a number of cysts and lesions.
Taking into account these facts, the State Commission had rightly concluded that this was a case of medical negligence.
11. For the reasons stated above, we agree with the order of the State Commission and uphold the same. The present First Appeal is, therefore, dismissed. Appellants are directed to pay Respondent a sum of Rs.5 Lakhs as compensation within a period of 8 weeks from the date of this order, failing which the amount will carry interest @ 9% per annum, together with Rs.3000/- as costs of the proceedings. We note that Appellants had deposited a sum of Rs.2.50 Lakhs with the State Commission vide this Commissions order dated 05.02.2008. In that case, this amount be released to the Respondent with interest accrued thereon and Appellants are directed to pay the remaining amount as directed above.
Sd/-
(ASHOK BHAN, J.) PRESIDENT Sd/-
(VINEETA RAI) MEMBER Mukesh