National Consumer Disputes Redressal
Dr. R. K. Sharma & Smt. Murttiya Devi vs Smt. Murttiya Devi & Dr. R. K. Sharma on 15 October, 2014
NATIONAL
CONSUMER DISPUTES REDRESSAL COMMISSION
NEW
DELHI
REVISION PETITION NO. 1262 OF 2009
(From order dated 6.3.2009 in First Appeal No. 3 of 2007
of the
Uttarakhand State Consumer Disputes Redressal
Commission, Dehradun)
Dr. R.K. Sharma
R. K. Hospital
Mata Mandir Road
Mukherjee Nagar, Kashipur,
District Udham Singh Nagar,
Uttarakhand Petitioner
Versus
Smt. Murttiya
Devi
W/o Late Shri Ramvriksh Gupta
R/o Kainal
Colony,
No. 2, Gularbhoj,
Udham Singh Nagar,
Uttarakhand Respondent
REVISION PETITION NO. 3205 OF 2009
(From order dated 06.03.2009 in First Appeal No. 4 of 2007
of the
Uttarakhand State Consumer Disputes Redressal
Commission, Dehradun)
Smt. Murttiya
Devi
W/o Late Shri Ramvriksh Gupta
R/o Kainal
Colony,
No. 2, Gularbhoj,
Udham Singh Nagar,
Uttarakhand
Petitioner
Versus
Dr. R.K. Sharma
R. K. Hospital
Mata Mandir Road
Mukherjee Nagar, Kashipur,
District Udham Singh Nagar,
Uttarakhand Respondent
BEFORE:
HONBLE
MR. JUSTICE J. M. MALIK, PRESIDING MEMBER
HONBLE
DR. S. M. KANTIKAR,
M.D., MEMBER
For Dr. R. K. Sharma :
Mr. S. Nand Kumar, Advocate with
Mr. Parivesh
Singh, Advocate
Dr. R. K. Sharma (In Person)
For Smt. Murttiya
Devi : Mr. Syed Ali Ahmed, Advocate with
Mr. Pravin Kumar,
Advocate
PRONOUNCED
ON 15th, OCTOBER 2014
ORDER
PER DR.
S.M. KANTIKAR, MEMBER Several medical literatures reveal that, Tuberculosis is caused by Mycobacterium tuberculosis. It is also, a possible aetiological agent in Sarcoidosis has been point of debate since many years and has been studied thoroughly. Recent advances in immunologic and molecular techniques have strengthened the association between mycobacteria and sarcoidosis.
1. This order will decide the above said two revision petitions. The facts are drawn from Revision Petition No. 1262 of 2009.
2. The complainant, Smt. Murttiya Devi took her husband, Shri Ramvriksh Gupta to Dr. R. K. Sharma, the opposite party on 29.12.2003 for the treatment. The opposite party/doctor diagnosed him as a case of tuberculosis and put him on 9 months treatment by giving anti-tuberculosis drug. Even after 8 months, there was no improvement. The OP/doctor advised for sputum test, which was negative for T.B. The complainant thereafter consulted the doctors of Bhawali Sanitorium, Nainital, who expressed the possibility of some other lung disease and not tuberculosis. Thereafter, the doctor referred the patient to AIIMS, New Delhi but the complainant has not succeeded to get the patient admitted in the hospital. Therefore, she admitted her husband, in V. P. Chest Institute, New Delhi on 20.10.2004. After investigation, the doctors diagnosed him as a case of Sarcoidosis in advanced stage. Subsequently, the patient died, on 30.11.2004 in the said hospital. The complainant alleged that the opposite party/doctor has not diagnosed the patient properly and continued the medicines of anti-tuberculosis without conducting proper tests. Therefore, it was the deficiency in service and medical negligence. Hence, the complainant filed a complaint before the District Forum, Udham Singh Nagar.
3. The District Forum allowed the complaint and ordered the opposite party to pay a sum of Rs.1,00,000/- as compensation and Rs.1000/- towards costs.
4. Aggrieved by the order of District Forum, both the parties filed cross appeals before the State Commission. Dr. R. K. Sharma-OP filed first appeal No. 03/2007 for dismissal of complaint, while First appeal bearing No. 04/2007 has been filed by the complainant, for enhancement of compensation awarded by the District Forum.
5. The State Commission dismissed both the appeals. Hence, both the parties approached this Commission by filing two separate revision petitions. Revision Petition No. 1262 of 2009 has been filed by Dr. R. K. Sharma challenging the medical negligence and the Revision Petition No. 3205 of 2009 has been filed by the complainant for enhancement of compensation.
6. Heard the learned counsel for both the parties, along with the complainant and the OP doctor who are also present in person.
7. The OP Dr. R. K. Sharma submitted that, after detailed history, clinical examination of the patient, advised X-ray chest and blood investigations; arrived the diagnosis of Pulmonary Tuberculosis. Hence, started the Anti-Tubercular Therapy (ATT). He further submitted that, within one month, the patient gained weight i.e. there was improvement in the health of patient. The patient was under his treatment for 7 months and during follow-up periodical X-ray chest was performed along with blood tests. The X-ray reports obtained from Dr. B. M. Goel on 26.4.2004 and 17.8.2004 also revealed pulmonary tuberculosis. As the X-ray dated 17.8.2004 did not show improvement in the lungs, hence advised A.F.B. (Acid Fast Bacilli) culture test was advised, which was negative. Then, the OP referred the patient to Rajan Babu T. B. & Chest Hospital, New Delhi but the patient did not go there. He went to Bhawali Sanitorium where Dr. D. C. Punera expressed the possibility of either of three diseases i.e. T.B. /Sarcoidosis/L.C. In three successive days AFB Sputum test was done at Bhawali Sanatorium, Nainital, which was Negative. Thereafter, the patient was referred to AIIMS for further evaluation but, he went to V. P. Chest Institute on 26.10.2004, where he died due to respiratory failure. The counsel for OP put reliance upon;
1. Achutrao Haribhau Khodwa and Ors. vs. State of Maharashtra and Ors., (1996) 2 SCC 634.
2. State of Kerala vs. George Joseph, (1996) 2 SCC 647.
3. Martin F. DSouza vs. Mohd. Ishfaq, in Civil Appeal No. 3541 of 2002.
4. Jacob Mathew vs. State of Punjab and Anr.,
5. A.P. State Road Transport Corporation and Ors. vs. Abdul Kareem, (2005) 6 SCC 36 in Civil Appeal No. 7797 of 2003 with D. Shanker vs. A.P.S.R.T.C. Nizamabad Region, in Civil Appeals No. 7797 of 2003 with 37 of 2005.
6. C. P. Sreekumar (Dr.) MS (Ortho) vs. S. Ramanujam, (2009) 7 SCC
130.
7. Kusum Sharma & Ors. vs. Batra Hospital and medical Research Centre and Others, (2010) 3 SCC 480.
8. Learned counsel for the complainant vehemently argued that the doctor was negligent. He has not advised Sputum Test at initial stage, he relied upon only X-ray report and started ATT without proper diagnosis of TB.
9. We have perused the WHO medical literature on Treatment of Pulmonary Tuberculosis, Harrisons Text Book of Internal Medicine, and few research articles on Tuberculosis and Sarcoidosis from National and International Journals. It revealed that, the distinguishing sarcoidosis from pulmonary tuberculosis can sometimes be a great challenge to physicians, especially in developing countries where there is high prevalence of tuberculosis. Due to the marked clinico-radiological similarity of these entities and high prevalence of tuberculosis, these patients receive repeated courses of anti-tubercular therapy (ATT) while lung damage continues to progress. Recently, adding to the diagnostic difficulty, there are also several reports of coexistence of sarcoidosis and tuberculosis in the same patients.Both diseases present with constitutional symptoms of fever, malaise, weight loss, and fatigue. Respiratory symptoms are common to both diseases. A combination of clinical, radiologic, and laboratory tests are used to make a diagnosis of sarcoidosis.
10. Therefore, we are of considered view that, the OP diagnosed and treated the patient by ATT, for tuberculosis. The sarcoidosis was a subsequent diagnosis, which was not diagnosed at earlier stage because of similarity with tuberculosis. This was an error of judgment, and not a negligence. The diagnosis of Sarcoidosis can be made on the basis of biopsy study. The pulmonary tuberculosis (PTB) radiologically. Report was given by a qualified radiologist. Therefore, administration of ATT was a reasonable approach by the OP, who followed the patient periodically. When the X-ray findings were clearly diagnostic of PTB, then not advising Sputum examination was not negligence. It will be a supportive investigation in such case. Also, the opinion of Dr. Deepak Talwar, Dr. S. P. Gupta and Dr. B. C. Agrawal did not mention about negligence on the part of OP. Even, the OPD slip from Bhowali Sanatorium, Dr. D. C. Purana has mentioned possibility of TB /Sarcoidosis/L.C. There was no definitive diagnosis of Sarcoidosis. Also the treatment record of V. P. Chest Institute dated 2/9/2005 issued by Prof S. N. Gaur of Deptt. Of Respiratory Medicine is mentioned as follows:
As per the enquiry of Mr. Jai Prakash s/o Late Mr. Ram Vraksh Gupta and with the reference to the letter of Director, VDU dated 01.01.2005, I want to state that Mr. Ram Vraksh Gupta was a case of Diffuse Interstitial Lung disease-Bilateral disease (honey combing + advanced stage Fibrosis). He was admitted for the disease management including admission in intensive care unit and expired on 30.11.2004 due to acute type of Respiratory Failure and D/F.
11. Honble Supreme Court categorically explained about medical negligence in several judgments. In Achutrao Haribhau Khodwa vs State Of Maharashtra And Ors, 1996 SCC (2) 634, it is observed that, The skill of medical practitioners differs from doctor to doctor. The very nature of the profession is such that there may be more than one course of treatment which may be advisable for treating a patient. Courts would indeed be slow in attributing negligence on the part of a doctor if he has performed his duties to the best of his ability and with due care and caution. Medical opinion may differ with regard to the course of action to be taken by a doctor treating a patient, but as long as a doctor acts in a manner which is acceptable to the medical profession, and the Court finds that he has attended on the patient with due care skill and diligence and if the patient still does not survive or suffers a permanent ailment, it would be difficult to hold the doctor to be guilty of negligence.
12. Dilemma of a doctor, in such circumstances, is beautifully explained by this Court in Kusum Sharma (MANU/SC/0098/2010), in the following words:
89(V) In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.
(VI) The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/ her suffering which did not yield the desired result may not amount to negligence.-
(VII) Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.
13. In the case, Martin F. Dsouza vs. Mohd. Ishfaq, (2009) 3 SCC 1, it was held by Honble Supreme Court that,
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.
14. Therefore, we are of considered view that, there was no negligence caused by OP in diagnosis and treatment of the patient. OP treated the patient with proper care and caution. The medical texts also supports that, distinguishing sarcoidosis from pulmonary tuberculosis can sometimes be a great challenge to physicians. The OP advised the patient for further reference to the higher centre, when his treatment did not show satisfactory response. The cause of death of patient was due to interstitial fibrosis and respiratory failure. It may be possible progression of either PTB or Sarcoidosis. Therefore, we, on the basis of forgoing discussion, the medical literature and reference to the decisions of Apex court, we do not find any medical negligence committed by OP. Accordingly, the Revision Petition 1262 of 2009 is allowed and the Revision Petition 3205 of 2009 is hereby dismissed.
The parties are directed to bear their own costs.
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(J. M. MALIK, J) PRESIDING MEMBER ...
(DR.S. M. KANTIKAR) M.D. MEMBER Mss/1& 2