National Consumer Disputes Redressal
Satya Prakash Pant vs Dr. P.N. Joshi & Anr. on 6 May, 2015
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 257 OF 2010 (Against the Order dated 31/05/2010 in Complaint No. 31/1997 of the State Commission Maharastra) 1. SATYA PRAKASH PANT P-49/A-1 PANDAV NAGAR, MAYUR VIHAR, PHASE-1, DELHI - 110091 ...........Appellant(s) Versus 1. DR. P.N. JOSHI & ANR. Prathna Samaj Junction Above J.J. and Sons, Mumbai-400004 Maharashtra 2. CHARAK CLINIC NURSING HOME Laud Mansion, 4th Floor,21,M. Karve Road, Opp. Charni Road, Station, Mumbai-400004 Maharashtra ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER HON'BLE MR. DR. S.M. KANTIKAR, MEMBER For the Appellant : Mr. R. K. Saxena, Advocate For the Respondent : For the Respondent No. 1 : Mr. S. B. Prabhavalkar, Advocate For the Respondent No. 2 : NEMO Dated : 06 May 2015 ORDER DR. S. M. KANTIKAR, MEMBER Under the law doctors are permitted a broad range of judgment in their professional duties and they are not liable for error of judgment unless it's proven that an error of judgment was the result of negligence.
"A doctor's good faith isn't the issue -- the issue is whether they fulfilled their professional obligations."
1. The complainant, Shri Satya Prakash Pant,(herein referred as "patient") was suffering from anal fissure/fistula, which was operated by the Opposite Party Dr. P. N. Joshi (OP) on 31.1.1995 in Charak Clinic Nursing Home; OP assured him for the full cure, complainant was kept in the hospital till 6.3.1995. During the hospital stay, several times OP scooped the operated wound without giving anaesthesia or pain killer injection. The OP assured that the healing was good and advised for regular dressing from the junior staff. The OP did not visit him daily, but made visits on alternate day. After operation OP did not send the tissue for biopsy study, (histopathology examination HPE) but OP told the patient that, as he was young, no need to worry, wound will heal soon. On 6.3.1995, the complainant was discharged and prescribed medicines like Tablet Cifran 500 and pain killers, and OP further advised the complainant's wife to do regular dressing of the wound. There was no improvement in the wound healing, there was deterioration, hence, he visited the OP on 20.4.1995, then the, OP became angry and forcibly tried to clean the wound, caused profuse bleeding. Thereafter, the patient was unable to sit or sleep, also unable to consume sufficient food. Then, he consulted many surgeons in Mumbai and every one told him that, OP had given wrong treatment. Thereafter, the complainant consulted Dr. Chobey at Sir Ganga Ram Hospital and Dr. Surinder Singh in New Delhi, who after examination diagnosed the patient as a case of Tuberculosis [T.B.] and started Anti-Tuberculosis treatment (ATT) from 21.11.1995 for further 9 months, which cured the patient. The complainant sought help and guidance from the Association for Consumer Action on Safety and Health (ACASH), for the alleged negligence committed by OP, and thereafter, the complainant filed a complaint before the State Consumer Disputes Redressal Commission, Mumbai and prayed for compensation.
2. After hearing both the parties and considering the evidence, the State Commission dismissed the complaint. Therefore aggrieved by the impugned order of State Commission, the complainant/Appellant filed this first appeal before this commission.
3. We have heard the counsel for the parties. The counsel for complainant Mr.Saxena argued and reiterated the submissions made in the complaint. He further submitted that, the complainant sought medical opinion ACASH, from Dr. Sunil Vaze, Consulting Surgeon. Dr. Vaze opined in detail that, CBC, Urine examination and chest x-ray are must done before embarking upon any surgical procedure. He suggested that all fistulae, whether recurrent or otherwise are to be sent for HPE after excision. Dr. Vaze also opined that post fistulectomy wound, if found not healing, then TB should have been suspected and investigated further. The counsel further submitted that, the OP has extracted money by way of unnecessary hospitalisation for a long period and charged AC room charges. The complainant suffered financial loss, he lost his job also. Therefore, OPs 1 and 2 were guilty of deficiency, negligence and carelessness in giving treatment to the complainant.
4. Learned counsel for OP Mr. Prabhavalkar argued that, the OP is a qualified surgeon and experienced, senior doctor. The complainant was operated properly and thereafter, the dressing was performed on regular basis. The prolonged hospitalisation was due to wish of the complainant himself, because the complainant was staying in one suburb Bhandup, which was very far from the Charak Hospital, therefore it was difficult for the patient to attend for dressing daily. It is further submitted that after the operation, the tissue was sent for HPE which was reported as non-specific. Therefore, OP 1 has not started any treatment for T.B. The patient was diagnosed T.B. after a span of 10-11 months, therefore it was the case of non-healing wound because of foreign body reaction by the faecal matter.
5. We have perused the medical record, it revealed us that, the OP after taking proper consent performed fistulectomy operation and it was diagnosed as bilateral inter spinctoric high end fistula with internal opening. After the surgery the patient was treated with higher antibiotics and analgesic drugs. Regular dressing of surgical wound was performed. The main controversy swirls around that, whether the OP failed to diagnose tuberculosis in the fistulous tract. As per evidence of OP, the excised fistulous tract, it was sent for HPE analysis, which was reported as non-specific. Hence, the OP has not decided to treat the patient with ATT. No doubt in the case of long standing non-healing fistulous tract, possibility of tuberculosis to be suspected, but most of the time fecal material acts as foreign body, which delays the healing of wound.. The patient consulted Dr. Pradeep Chaube at New Delhi on 08.1195.On examination of he noted a cavity in posterior aspect and pus discharge per rectum, coming out from the wound. After blood and X-ray chest investigation, at Sippy Hospital, it was diagnosed as tuberculosis. The x-ray chest - PA view showed right pulmonary Koch's (right upper lobe). Dr. Surender Singh was also consulted by patient, he has suspected Koch's fistula.
6. It is pertinent to note, in this instant case, that prior to the surgery, pre anaesthetic check up was performed. There were no signs or symptoms which the OP could suspect tuberculosis. Also, the patient had no history or any pulmonary symptoms of tuberculosis like long standing chronic cough and fever. The x-ray report from Sippy Nursing Home appears to be an incidental one. It was noticed after lapse of ten months.
7. Therefore, in this case, we are of the considered view that, it was an error of judgment committed by the OP. It was not a medical negligence. There is nothing to say about any fault or any lapses in performing operation and subsequent post-operative care. The histopathology also revealed non-specific inflammation in the fistula. Regarding Dr. Vaze's report, does not speak about negligence committed by OP. It is also important to note that the OP is renowned senior surgeon in Bombay, having practice of more than 40 years. Thus, it is not acceptable to us, that he failed to send the exercised fistula tissue for histopathology. It is a standard protocol to send all surgical specimens for HPE. Thus, this is a clear cut case of error of judgment and necessarily not negligence.
8. "An error of judgement on the part of the professional is also not negligence per se," was held in the case Dr. Mahadev Prasad Kaushik Vs Sate of UP, (2008)14SCC 479, in Criminal appeal No 1625 of 2008. The bench headed by Hon'ble Justices C K Thakker and D K Jain while quashing the prosecution initiated against a doctor, Dr. Mahadev Prasad Kaushik, from Mathura.
9. The Bench explained, "The standard to be applied for judging whether a person charged has been negligent or not would be that of an ordinary competent person exercising ordinary skill in that profession." The court granted a breather to doctors, who, are living under the constant threat of being dragged to courts for "erroneous" treatment these days , are hounded by ambulance chasers, a category of lawyers who convince patients to file cases against any treatment "gone wrong".
10. Hon'ble Supreme Court said, "Medical profession is often called upon to adopt a procedure which involves higher element of risk, but which a doctor honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Which course is more appropriate to follow would depend on facts and circumstances of a given case."
11. Therefore, a doctor is not a guarantor of a cure. Accepted methods of treatment or diagnosis may exist for each case may differ. Whenever there is a reasonable doubt within the medical community as to the nature of the patient's physical condition or the proper course to follow, a doctor will not be held liable if he chooses one method of diagnosis or treatment over others and obtains an undesirable result. In such situation, the majority rule is that a doctor has not deviated from the standard of care, but rather, has made an "honest error in judgment" in choosing the approach which led to the result. Under the law doctors are permitted a broad range of judgment in their professional duties and they are not liable for error of judgment unless it's proven that an error of judgment was the result of negligence.
12. Therefore, on the entirety there is no merit in this appeal. Hence, we agree with the view taken by State Commission, accordingly the first appeal is dismissed. The parties shall bear their own costs.
......................J J.M. MALIK PRESIDING MEMBER ...................... DR. S.M. KANTIKAR MEMBER