State Consumer Disputes Redressal Commission
National Mri Scan Centre vs Pooja Manchanda on 24 April, 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: 24.04.2007 First Appeal No.1144/2006 (Arising from the order dated 21.09.2006 passed by District Forum(West) Janak Puri, New Delhi in Complaint Case No.175/2005) National MRI Scan Centre Appellant 19/35, Punjabi Bagh through Mr. A.K. Gupta, Main Rohtak Road, New Delhi. advocate. Through Dr. N.K. Sharma Versus 1. Ms. Pooja Manchanda Respondent E=18, Mansarovar Garden, New Delhi. 2. Dr. Prashant Bhatt, Positive Diagnostic Centre, Main Palam Vihar Road, Bijwasan, New Delhi. 3. Dr. Jaideep Bansal, 434, Pocket C-8, Sector-8, Rohini, Madhuban Chowk, 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. Since the respondent is present in person and has argued the matter the appeal is being decided on merit.
2. On account of having suffered for 3-4 months due to the wrong report of MRI given by the appellant institute and its doctor, respondent No.2 Dr. Prashant as they have been been vide impugned order dated 21.09.2006 held jointly and severally liable for medical negligence and directed to pay Rs.1,20,880/- towards medical expenses incurred by the respondent No.1, the complainant and Rs.2,00,000/- as compensation for the mental agony and harassment and other sufferings suffered by her.
3. Feeling aggrieved the appellant Institute has preferred this appeal.
4. Admittedly respondent No.1 got MRI done from the appellant centre on 03.05.2003 against payment of Rs.7,000/-. Respondent No.2 Dr. Prashant Bhatt performed the MRI of the brain and gave report on the same day, which was submitted at Kukreja hospital. Acting on the report of respondent No.2, the treating doctor at Kukreja Hospital gave her anti tuberculosis treatment. Report given by respondent No.2, was as under:
Opinion: Findings are suggestive of inflammatory granulomas in left cerebellar left pontine region, right posterior temporal and right parietal periventricular regions, most likely of tubercular etiology. No abnormal meningeal enhancement is seen.
On comparison with the previous MRI of March 2003 there are now fresh lesions which were not seen earlier. The gliotic areas seen previously are seen as before. The lesions seen now are fresh hand are seen in different location than the granulomatous lesions of the previous MRI studies of 1999.
5. Since the condition of respondent No.1 became bad to worse, one more MRI of spinal cord was advised at Kukreja Hospital. On payment of Rs.4,000/- the respondent No.1 got MRI for spinal cord performed again by respondent No.2 and on the basis of this report, the treating doctor at Kukreja Hospital continued the treatment as before till July 2003. The second report given by respondent No.2 was as under:
Opinion: Followup case of neurotuberculosis. Findings are suggestive of intramedullary granulomas with associated edema from C2, D 7 and D 9 level with associates edema. No abnormal meningeal enhancement is seen. Follow up is suggested.
6. Again treating doctor at Kukreja Hospitla continued treatment based upon the second report of MRI conducted by respondent No.2. Seeing negative result of the treatment, treating doctor again advised for one more MRI which was done on 14.07.2003 by Dr. N.K. Sharma. His opinion was as under:
Opinion: Findings are suggestive of multiple demyelinating plaque involving the upper cervical cord. It sided pons and cerebellum & supratenotirla periventricular white matter bilaterally.
On comparison with the previous MRI of May 03,2003 there are fresh lesions with it. Cerebello-pontine lesion showing . Lative regression.
7. On seeing the report of Dr. N.K. Sharma who opined that the respondent was suffering from MR multiple selerosis and not tuberculosis, the treating doctor immediately stopped anti-tuberculosis treatment and started treatment for multiple selerosis. By this time the respondent No.1 had already incurred medical expenses of Rs.1,20,880/- on her treatment. Subsequently respondent No.1 filed the instant complaint before District Forum seeking refund of the aforesaid expenses and compensation as to the mental agony and harassment suffered by her.
8. It is pertinent to mention at this stage that during the proceedings before District Forum, the District Forum referred the matter to All India Institute of Medical Sciences for expert opinion. The expert opinion of the doctors at AIIMS is as under:
All relevant Radiological findings have been documented in the reports of 03.05.2003 and 26.05.203 correctly. However, the opinion given is inaccurate, since the findings suggest demyelination as the likely pathology instead of tubercular pathology. In this regard the reports of 03.05.2003 and 26.05.2003 are incorrect.
9. The appellant has assailed the impugned order and finding of the fact returned by the District Forum mainly on the following premise that the District Forum has relied upon the medical literature MEDLINE PLUS which shows that the symptoms of MS may mimic many other neurologic disorders. Diagnosis is made by ruling out other conditions, which means that the symptoms of TB and MS can be on the face of it alike and therefore the report of respondent No.2 were at the most error of judgment and not incorrect reports.
10. Another medical book Magnetic Resonancne Imaging of CNS Disease, shows that MS is common disorder and for any individual patient it may be difficult to exclude the coexistence of two different diseases. The counsel for the appellant has contended that the finding of the District Forum that the reports of respondent NO.2 were incorrect is not based upon the medical opinion with regard to the neurological disorders and therefore the respondent cannot be accused of negligence or giving incorrect report.
11. The counsel has also placed reliance upon the following view taken by the Supreme Court in Jacob Mathew Vs State of Punjab & Anr. Reported as (2005) 6 SCC based on Hunter Vs 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 of ordinary skill would be guilty of if acting with ordinary care.
12. Question of ascertaining medical negligence has been cropping up time and again. Guidelines and criteria for ascertaining the medical negligence laid down in Bolams case reported in (1957) 2 AII ER 118, 121 D-F still holds the field. This test, in popular parlance is known as Bolam Test after the name of the petitioner. In short the test is as under:-
[Where you get a situation which involves the use of some special skill or competence then the test as to whether there has been negligence or not is to the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill. It is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art (Charles worth & Percy, ibid., para 8.02)
13. Bolam test was accepted with approval in the following judgments:-
(i) Sidway V. Bethlem Royal Hospital Governors and Others 643 All England Law Reprots (1985) 1 All ER.
(ii) Maynard V. West Midlands Regional Health Authority 635 All England Law Reports (1985) 1 All ER.
(iii) Whitehouse V. Jordan and Another 650 All England Law Reports (1980) 1 All ER.
14. Presumably because of persuasive value of Bolams case that our own Supreme Court has in case after case and particularly in Indian Medical Association Vs. V.P. Shantha & Ors (1995) 6 SCC 651 wherein Bolams case was also discussed has adopted this test as guidelines for the courts to adjudicate the medical negligence. Latest judgment of Supreme Court on this aspect is Jacob Matthew V/s. State of Punjab and Another (2005) SCC (Crl.) 1369. Observations of the Supreme Court are as under:-
(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, which 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 Bolams case, WLR at p. 586 holds good in its applicability in India.
15. While dealing with the concept of criminal medical negligence as well as the medical negligence the broad principles laid down by the Supreme Court are:-
(i) That the guilty doctor should be shown to have done something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do.
(ii) Hazard or the risk taken by the doctor should be of such a nature that injury, which resulted was most likely imminent.
16. Although, there is a distinction between the medical negligence of a criminal nature and simplicitor medical negligence but consumer is entitled for compensation on account of both kinds of negligence. The test for holding the medical professional liable for criminal negligence should be such which should manifestly demonstrate utter act of rashness and negligence whereas ordinarily the negligence or deficiency means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service (Section 2(1)(g)).
17. To ascertain the medical negligence, cumulative conclusions drawn from various decisions can be summed up in the form of following queries? Decision will depend upon the answers:-
(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?
18. As is apparent that every case has to be scrutinised on the basis of its own facts and circumstances and no rule of thumb can be made applicable. There is no dispute that wherever there are two views possible or the two reports or opinion are available the opinion favouring the consumer has to be accepted. There is also no dispute that unless and until the error of judgment is of such magnitude and not the result of such thinly veiled distinction while observing the images in MRI that may not clarify as to the neurological disorder and is of such nature that one is not able to decide as to the exact nature of the neurological disorders.
19. In the instant case, as many as two MRI were conducted by respondent No.2 and both were found to be incorrect by another doctor of the appellant institute where respondent No.2 was working. Not only that doctor of AIIMS who was expert in the field gave his opinion in categorical terms by examining MRI and images taken by respondent No.2 on 03.05.2003 and 14.07.2003 that were incorrect. Thus the only inference that can be drawn is that either respondent No.2 did not possess such skill that was required to distinguish between images of different kind of neurological disorders namely tuberculosis and MS or he was negligent in giving reports.
20. It is not at all case of error of judgments as is manifestly demonstrated by the report of Dr. N.K. Sharma and the expert doctor of AIIMS who only based his opinion on the basis of the images shown by MRIs taken, examined and assessed by respondent No.2.
21. The contention of the counsel for the appellant that there was no evidence before District Forum to arrive at the conclusion that respondent No.1 spent an amount of Rs.1,20,880/- towards her treatment, does not hold water as respondent No.1 has filed affidavit in this regard as well as other documents but appellant could not controvert any of the pleas taken by respondent No.1 in the affidavit.
22. However, in the given facts and circumstances of the case particularly when the District Forum has already ordered for refund of the entire medical expenses incurred by respondent No.1 in her treatment of anti-tuberculosis and this being not a case where the operating doctor has committed such manifested negligence that has caused immense damage to the patient, we deem that additional compensation of Rs.1,00,000/- for mental agony, harassment, emotional suffering and physical discomfort undergone by the respondent who was subsequently treated property on receipt of report of Dr. N.K. Sharma, would meet the ends of justice.
23. In the result the appeal is partly allowed to the extent that the appellant shall pay in Rs.2,20,880/- besides Rs.5,000/- as cost of litigation.
12. Bank Guarantee/FDR, if any, furnished by the appellant be returned forthwith.
13. 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 24th day of April 2007.
(Justice J.D. Kapoor) President (Rumnita Mittal) Member Tri