State Consumer Disputes Redressal Commission
Dr.Sanjeev Manktala vs Dr.Ajit Sood on 8 April, 2010
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, SCO NO.3009-10, SECTOR 22-D, CHANDIGARH
Consumer Complaint No.71 of 2009
Date of Institution : 8.9.2009
Date of Decision : 08.4.2010
Dr.Sanjeev Manktala, resident of House No.1, Street No.5, Kanshi Nagri,
Ferozepur City (Mob. No.98143-09400) (01632-227400).
.........Complainant
Versus
1. Dr.Ajit Sood, 6-E, Tagore Nagar, Civil Lines, (Opposite New
Dayanand Medical College), Ludhiana.
2. Dr.Varun Mehta, Dayanand Medical College & Hospital, Tagore
Nagar, Civil Lines, Ludhiana.
3. Dayanand Medical Colelge & Hospital, Tagore Nagar, Civil Lines,
Ludhiana through its Director-cum-Principal.
.........Opposite Parties
BEFORE
Hon'ble Mr.Justice S.N.Aggarwal, President
Mrs.Amarpreet Sharma, Member
PRESENT For the complainant : Sh.Sandeep Khunger, Advocate JUSTICE S.N.AGGARWAL, PRESIDENT Dr.Sanjeev Manktala, complainant is a doctor by profession having the degree of B.A.M.S. He was 40 years of age. He was running his private clinic in Ferozepur City.
2. It was pleaded that in the month of August, 2008, he felt weakness and breathlessness and on 26.8.2008, he got his blood test 2 OC 71/2009 conducted from Vishal Diagnostic Centre, Ferozepur City. His H.B. was found to be 8.0 gm which suggested that the complainant was Anemic.
3. It was further pleaded that on 31.8.2008, the complainant contacted Dr.Surinder Pal Kataria, Pathologist of Kataria Diagnostic Clinic, The Mall, Ferozepur City for further investigation of blood and stool tests where Occult blood was found to be positive. Normally it is due to some worm infection or could be because of some Ulceration in the gastro intestinal tract or the other cause could be Gastro Intestinal Tract Tumour.
4. The complainant took certain medicines but there was no improvement and he developed unusual pain in his abdomen and was admitted as indoor patient with Dr.Parveen Dhingra of Amar Hospital, Ferozepur for conservative treatment. He remained admitted in this hospital from 7.9.2008 to 9.9.2008 but there was no improvement. Ultimately the complainant was advised to contact Dr.Ajit Sood, Gastroenterologist of Daya Nand Medical College & Hospital at Ludhiana (in short "D.M.C.").
5. It was further pleaded that the complainant visited D.M.C. on 10.9.2008. He paid the requisite fee in the hospital and contacted Dr.Ajit Sood, respondent no.1. Respondent no.1 examined the complainant medically and advised Upper GI Endoscopy. The complainant deposited the necessary charges. The Endoscopy was conducted by Dr.Varun Mehta, opposite party no.2 instead of Dr.Ajit Sood, opposite party no.1 in D.M.C. The Endoscopy Report revealed Esophageal Ulcer with Celiac Disease. He also took biopsies from Oesophagus and Duodenum. The Histopathology Report of Biopsy suggested no evidence of Malignancy.
6. It was further pleaded that the treatment given to the complainant did not respond at all and he again visited Dr.Ajit Sood, opposite 3 OC 71/2009 party no.1 on 18.9.2008 in D.M.C. on which the treatment was changed and the complainant was advised to visit the hospital after one month.
7. It was further pleaded that the abdomen pain of the complainant did not subside. Rather it increased. On 27.9.2008, the complainant again visited opposite party no.1 in Private OPD in D.M.C. and on his advice the complainant got conducted CT Scan besides the stood/blood tests from D.M.C. The complainant remained there in day care during the period from 27.9.2008 to 30.9.2008 and on the advice of opposite party no.1, Colonoscopy was conducted on 29.9.2008.
8. It was further pleaded that the Colonoscopy is a test that allows the doctor to look at the inner lining of the large intestine (rectum and colon) and to some extent part of terminal ileum (small gut). For that purpose a thin, flexible tube is used to look at the colon. Colonoscopy helps to find ulcers, colon, polyps, tumours and areas of inflammation or bleeding. During colonoscopy, the tissue samples can be collected (biopsy). Colonoscopy can also be used as a screening test to check for cancer or precancerous growths in the colon or rectum (polyps) and from terminal portion of ileum (small gut). The complainant had deposited the necessary charges/consultation fee for these tests.
9. It was further pleaded that the colonoscopy was supposed to be conducted by Dr.Ajit Sood, opposite party no.1 as he was engaged for this purpose but it was conducted by Dr.Varun Mehta, opposite party no.2 without taking the complainant into confidence. It was also not conducted under the supervision of Dr.Ajit Sood; rather it was conducted in his absence. As per the colonoscopy report given by opposite party no.2 which was checked on 29.9.2008, he saw terminal ileum upto the 15 cm from ileo-caecal valve (i.e. the last 15 cm of ileum) and he noticed cobble stoning along with oedematous 4 OC 71/2009 hyperaemic mucosa and he took ileal and Caecum biopsy. He also noticed stricture at 15 cm beyond which he could not negotiate the scope. The stricture is an abnormal narrowing of a body passage, especially a tube or a canal. Stricture refers to both the process of narrowing and the narrowed part itself i.e. diseased portion. Opposite party no.2 failed to take the biopsy from this stricture which was the obvious site of actual disease.
10. It was further pleaded that histopathology report of ileal & caecal biopsy was received on 3.10.2008. Barium meal follow through was also conducted on 30.9.2008. On the basis of said investigation, the opposite parties opined that complainant may be having tuberculosis of intestine or crohn's disease (auto immune disease) and put him on Anti Tuberculosis Treatment (ATT) for six months. However, the complainant did not get any relief and he continued visiting the opposite parties and explained his continued problem on 16.10.2008. Opposite party no.1 suggested the same treatment inspite of the fact that the treatment for six weeks had failed to give any improvement or any sign of improvement.
11. It was further pleaded that when there was no recovery, the complainant consulted another Gastroenterologist Dr.N.S.Malhi at Moga on 7.12.2008 who advised him to repeat colonoscopy. The complainant was again admitted in Amar Hospital, Ferozepur because of his severe abdominal pain for the period from 19.12.2008 to 22.12.2008. He also visited opposite party no.1 on 15.1.2009 when the complainant was also put on treatment for Crohn's disease (Auto Immune Disease). On the same day i.e.15.1.2009, the complainant contacted Dr.Arindam Ghosh, a GI Surgeon who advised laparoscopy.
12. It was further pleaded that the complainant again visited opposite party no.1 and informed him about the opinion of Dr.A Ghosh and 5 OC 71/2009 of Dr.N.S.Malhi to repeat colonoscopy or laproscopy but Dr.Sood insisted to continue with his treatment and told the complainant that there was no need for laproscopy or colonoscopy. The complainant again continued with the treatment given to him by opposite party no.1 but still there was no relief.
13. It was further pleaded that the complainant again visited opposite party no.1 on 12.2.2009 and told him that his pain was still persisting. Opposite party no.1 increased the dose of medicine but no test was advised. The complainant also contacted opposite party no.1 many times on telephone at his clinic-cum-residence about the persisting signs and symptoms but there was no relief.
14. It was further pleaded that 4-5 days thereafter the complainant suffered severe abdominal pain and then he went to Dr.Randhir Sood, Gastroenterologist of Sir Ganga Ram Hospital at Delhi. The complainant was advised Urgent Colonoscopy and it was performed on 19.2.2009 which reported stricture 15 cm from illeoceacel valve with ulcerated margins. Biopsy sample from the stricture was taken. It was found to be cancer and the complainant was advised immediate surgery. CT Scan of chest and abdomen was also advised and was done on 28.2.2009.
15. It was further pleaded that the scan was conducted at Sir Ganga Ram Hospital, New Delhi on 7.3.2009 by Dr.Adarsh Choudary. The Post Surgical Specimen Report revealed that cancer growth had extended to outside the ileal wall.
16. It was further pleaded that repeat colonoscopy should have been done by Dr.Ajit Sood after six weeks of therapeutic trial of ATT as there was no improvement from signs and symptoms. By not conducting so and by ignoring the opinion of Dr.A.Ghosh and Dr.N.S.Malhi; and insisting of his own earlier treatment by opposite party no.1 amounted to medical negligence. 6 OC 71/2009 The medical negligence was also committed by him by not conducting the colonoscopy himself and assigning the same to opposite party no.2.
17. Alleging medical negligence on the part of opposite parties, the complainant has filed this complaint claiming the amount of Rs.3,48,180/- i.e. the amount spent on the treatment of the complainant; Rs.30 lacs as compensation for harassment and mental agony; Rs.10 lacs for future medical expenses. Cost of litigation was also prayed.
18. As per the judgement of the Hon'ble Supreme Court reported "Martin F. D'souza v. Mohd. Ishfaq 2009 (2) RCR Criminal Page 64", before summoning the opposite parties, opinion was sought from the Doctor, PGI. Para 117 of the judgement reads as under:-
"117. We, therefore, direct that whenever a complaint is received against a doctor or hospital by the Consumer For a (whether District, State or National) or by the Criminal Court then before issuing notice to the doctor or hospital against whom the complaint was made the Consumer Forum or Criminal Court should first refer the matter to a competent doctor or committee of doctors, specialized in the field relating to which the medical negligence is attributed, and only after that doctor or committee reports that there is a prima facie case of medical-negligence should notice be then issued to the concerned doctor/hospital. This is necessary to avoid harassment to doctors who may not be ultimately found to be negligent. We further warn the police 7 OC 71/2009 officials not to arrest or harass doctors unless the facts clearly come within the parameters laid down in Jacob Mathew's case (supra), otherwise the policemen will themselves have to face legal action."
19. The Director, PGI, Chandigarh constituted the Board of three specialist Doctors namely Dr.R.K.Kochhar, Professor, Department of Gastroenterology, Dr.Rajesh Gupta, Associate Professor, Department of General Surgery and Dr.Rakesh Kapoor, Associate Professor, Department of Radiotherapy vide office order dated 13.10.2009. The Medical Board of Doctors held a meeting on 15.10.2009 and gave the following report:-
"a) Diagnosis of any disease is made on the basis of clinicalfindings and investigations:- The patient (Dr.Sanjeev Manktala) was appropriately investigated at DMC, Ludhiana with endoscopy, colonoscopy, barium meal follow through and CT scan. Clinically and investigatively a presumptive diagnosis of inflammatory bowel disease (Tuberculosis or Crohn's disease) was made which seems justified.
b) At DMC, Ludhiana, treatment with anti-tubercular drugs was started which is justified in our setting.
c) The patient did not show any improvement after this treatment, so treatment for Crohn's disease was started in January 2009 which seems reasonable.
d) The patient was seen at Sir Ganga Ram Hospital, New Delhi in February 09 when a colonoscopy was done. Even there a diagnosis of inflammatory bowel disease was suggested. 8 OC 71/2009
The biopsy report of ileal adenocarcinoma, therefore, was a surprise.
Therefore, the Board opines that in the presence of clinical picture and investigations are detailed, the patient was treated appropriately.
Sd/- Sd/- Sd/-
(R Kochhar) (R Gupta) (R Kapoor)
Professor Ass. Prof. Assoc. Prof.
Gastroenterology General Surgery Radiotherapy
Postgraduate Institute of Medical Education and Research Chandigarh, India."
20. The first submission of the learned counsel for the complainant was that the complainant had availed the services of Dr.Ajit Sood by depositing the necessary medical fee. However, the colonoscopy was conducted by Dr.Varun Mehta, opposite party no.2 on 29.9.2008 (Annexure C-7) in the absence of Dr.Ajit Sood, opposite party no.1. This amounted to medical negligence.
21. This submission has been considered. It has no merits at all.
22. Dr.Ajit Sood is a senior Doctor working in D.M.C. The complainant had availed the services of doctors in the D.M.C. and the services were rendered to him by one doctor or the other relating to the nature of services required. The complainant was being attended by Dr.Ajit Sood but he was not to conduct every act or medical test upto the giving of injections or purchasing of medicines for the complainant. A team of doctors/para medical staff was working under Dr.Ajit Sood, opposite party no.1 and the patient was being looked after properly in the D.M.C. by the concerned doctor/para medical staff.
23. Therefore, merely because Dr.Ajit Sood was not present at the time of colonoscopy did not amount to medical negligence. 9 OC 71/2009
24. The next submission of the learned counsel for the complainant was that the biopsy was not taken by the doctor from the diseased area, rather it was taken from the area upto which the tube could go. Dr.Varun Mehta had applied his wisdom and he had taken the biopsy from the area of the body of the complainant where he deemed fit. Therefore, it also did not amount to medical negligence.
25. The next submission of the learned counsel for the complainant was that Dr.Ajit Singh insisted on his own diagnosis even when the reports of Dr.A.Ghosh and Dr.N.S.Malhi were brought to his notice. The treatment given by Dr.Ajit Singh was based on test reports and he had even changed the medicines when the complainant had complained about the subsisting pain. He was to apply his own mind and was not to depend upon the advice given by the other doctors and that too orally. If the complainant was not satisfied with the diagnosis of Dr.Ajit Sood or by the treatment given by him, it was for the complainant to go to some other hospital for getting redressal of his subsisting pain.
26. It was held by the Hon'ble Supreme Court in the judgement reported as "MALAY KUMAR GANGULY v. SUKUMAR MUKHERJEE (DR.) & ORS." III(2009) CPJ 17 (SC) as under:-
"35. Charge of professional negligence on a medical person is a serious one as it affects his professional status and reputation and as such the burden of proof would be more onerous. A doctor cannot be held negligent only because something has gone wrong. He also cannot be held liable for mischance or misadventure or for an error of judgment in making a choice when 10 OC 71/2009 two options are available. The mistake in diagnosis is not necessarily a negligent diagnosis.
36. Even under the law of tort a medical practitioner can only be held liable in respect of an erroneous diagnosis if his error is so palpably wrong as to prove by itself that it was negligently arrived at or it was the product of absence of reasonable skill and care on his part regard being held to the ordinary level of skill in the profession. For fastening criminal liability very high degree of such negligence is required to be proved."
27. It was also held by the Hon'ble Supreme Court in the judgment reported as "Martin F. D'souza v. Mohd. Ishfaq", 2009 CTJ 352 (Supreme Court) (CP) as under : -
"41. A medical practitioner is not liable to be held negligent simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another.
He would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field. For instance, he would be liable if he leaves a surgical gauze inside the patient after an operation vide Achutrao Haribhau Khodwa & others vs. State of Maharashtra & others, AIR 1996 SC 2377 or operates on the wrong part of the body, and he would be 11 OC 71/2009 also criminally liable if he operates on someone for removing an organ for illegitimate trade.
42. There is a tendency to confuse a reasonable person with an error free person. An error of judgement may or may not be negligence. It depends on the nature of the error.
43. It is not enough to show that there is a body of competent professional opinion which considers that the decision of the accused professional was a wrong decision, provided there also exists a body of professional opinion, equally competent, which supports the decision as reasonable in the circumstances. As Lord Clyde stated in Hunter v. Hanley 1955 SLT 213:
"In the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and one man clearly is not negligent merely because his conclusion differs from that of other professional men... The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor or ordinary skill would be guilty of if acting with ordinary care..."
44. The standard of care has to be judged in the light of knowledge available at the time of the incident and not at the date of the trial. Also, where the charge of negligence is of failure to use some particular equipment, 12 OC 71/2009 the change would fail if the equipment was not generally available at the point of time."
28. In the present case the matter was got examined from the Board of Doctors of PGI who have reported that the patient was treated appropriately meaning thereby that there was no medical negligence on the part of opposite parties.
29. It appears that since the complainant had suffered subsisting pain out of a very serious disease, unfortunately, he is putting blame on the doctors which cannot be sustained in law.
29. The arguments in this case were heard on 5.4.2010 and the orders were reserved. Now the orders be communicated to the complainant.
( JUSTICE S.N.AGGARWAL ) PRESIDENT ( MRS.AMARPREET SHARMA ) MEMBER April 08, 2010 vr/-
13OC 71/2009