State Consumer Disputes Redressal Commission
Fortis Escort Hospital vs Kiran Deep Singh(Deceased) Through His ... on 21 April, 2016
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
First Appeal No. 11 of 2014
Date of institution: 6.1.2014
Date of Decision:21.4.2016
Fortis Escort Hospital, Majitha Verka Byepass Road, Amritsar through its
Chairman/Managing Director.
Appellant
Versus
1. Kiran Deep Singh (deceased) son of Surinder Singh r/o F-3,
Provident Fund Colony, Rattan Singh Chowk, Amritsar through his
legal heir a) Rupinderjit Kaur widow of Kiran Deep Singh, aged 38
years b) Navtej Singh minor son of Kirandeep Singh aged 9 years c)
Harnoor Kaur minor daughter of Kiran Deep Singh aged 7 years
through their mother and natural guardian Smt. Rupinderjit Kaur,
residents of Village Ralhon, P.O. Khudda, Tehsil Dasua.
Respondent No.1/Complainant
2. Dr. Rominder Kaur C/o Fortis Escort Hospital, Majitha Verka
Byepass Road, Amritsar.
Respondent No.2/Op No. 2
First Appeal against the order dated
31.10.2013 passed by the District Consumer
Disputes Redressal Forum, Amritsar
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member
Shri Jasbir Singh Gill, Member
Mrs. Surinder Pal Kaur, Member
Present:-
For the appellant : Sh. Jatinder Nagpal, Advocate
First Appeal No. 11 of 2014 2
For respondent No.1 : Sh. S.P. Soi, Advocate
For respondent No.2 : Sh. Munish Kapila, Advocate
2nd Appeal
First Appeal No. 12 of 2014
Date of institution: 6.1.2014
Dr. Rominder Kaur C/o Fortis Escort Hospital, Majitha Verka Byepass
Road, Amritsar.
Appellant
Versus
1. Kiran Deep Singh (deceased) son of Surinder Singh r/o F-3,
Provident Fund Colony, Rattan Singh Chowk, Amritsar through his
legal heir
a) Rupinderjit Kaur widow of Kiran Deep Singh, aged 38 years
b) Navtej Singh minor son of Kirandeep Singh aged 9 years
c) Harnoor Kaur minor daughter of Kiran Deep Singh aged 7 years
through their mother and natural guardian Smt. Rupinderjit Kaur,
residents of Village Ralhon, P.O. Khudda, Tehsil Dasua, District
Hoshiarpur.
Respondent No.1/Complainant
2. Fortis Escort Hospital, Majitha Verka Byepass Road, Amritsar
through its Chairman/Managing Director.
Respondent No.2/Op No. 1
First Appeal against the order dated
31.10.2013 passed by the District Consumer
Disputes Redressal Forum, Amritsar
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member
Shri Jasbir Singh Gill, Member
Mrs. Surinder Pal Kaur, Member
Present:-
For the appellant : Sh. Munish Kapila, Advocate
First Appeal No. 11 of 2014 3
For respondent No.1 : Sh. S.P. Soi, Advocate
For respondent No.2 : Sh. Jatinder Nagpal, Advocate
Gurcharan Singh Saran, Presiding Judicial Member
ORDER
This order will dispose of Appeal Nos. 11 & 12 of 2014 as both the appeals are arising out of the impugned order dated 31.10.2013 passed in Consumer Complaint No. 468 dated 1.7.2009 by the District Consumer Disputes Redressal Forum, Amritsar(in short the "District Forum") vide which the complaint filed by Kiran Deep Singh deceased through his LRs was allowed with the direction to Ops to pay a sum of Rs. 10 lacs as compensation on account of medical negligence. They were further directed to pay litigation expenses of Rs. 5,000/-. Appeal No. 11 of 2014 has been filed by Op No. 1 whereas Appeal No. 12 of 2014 has been filed by Op No. 2.
2. Complaint was filed by the complainant Kiran Deep Singh, who died during the proceedings of the complaint and then his LRs were brought on the record(hereinafter referred as 'patient') on the averments that the patient was suffering from fever and chest pain. On 22.6.2008, he visited Dr. A.S. Bhatia for diagnosis and Dr. A.S. Bhatia suggested CT Chest for further investigation. On his advice, he got the test for CT chest from Dhillon CT Scan Centre and Dr. Chouhan in his report dated 22.6.2008 referred "ill defined Hypodense lesions adjacent to the ascending Aorta and the right Atrium (R.A.) and in Etiology he referred probably Tubercular and it was further advised to co-relate clinically and he further advised to go for CT/MR Angiography to make sure the exact cause of the disease. First Appeal No. 11 of 2014 4 The complainant for better diagnose approached Op No. 1 on 23.6.2008 vide registration No. 34881 dated 23.6.2008 and was referred for treatment to Dr. Rominder Kaur Op No. 2, who noted down various observations from CT Scan but she did not make any observation about ill defined hypodensa lesions adjacent to the ascending aorta and she did opt for CT/MR Angiography inspite of clear indication given by Dr. Chouhan in his report dated 22.6.2008. Complainant was admitted in Op No. 1 on 23.6.2008 under UD ID No. FHIC 34881, IPID No. 32065 and she remained admitted their upto 25.6.2008. Discharge card Op No. 2 diagnosed TB Pleural and Pericardial effusion and she further advised to come after six days. Complainant again visited on 30.6.2008 and then on 7.7.2008 patient told Op No. 2 that he was not feeling any improvement but Op No. 2 continued the treatment of TB as per medical certificate issued by Ops on 26.6.2008 and 7.7.2008. In between 23.6.2008 to 14.7.2008, the condition of the complainant had gone so worst that he was not able to walk and was suffering from fever, cough and also intimated Op No. 2 that he was not feeling any relief from the treatment and to go for further test to confirm about the ailment but she stick to the same treatment. He was admitted with Op No. 1 on 14.7.2008 and remained admitted there upto 16.7.2008. During that period, X-ray chest was conducted by Op No. 2 in which heart was shown expanded in the discharge summary, Op No. 2 had referred "X-ray showed mild cardiomegaly" but she continued the same treatment and did not try to know any other cause of continuous deteriorating health of patient. He visited Ops on subsequent dates but Op No. 2 First Appeal No. 11 of 2014 5 continued with the same treatment as is clear from the certificate dated 28.7.2008 and 11.8.2008 that she was given treatment of TB. On 13.9.2008 at around 11.45 a.m., complainant became unconscious and was admitted by his family members with Ops and remained admitted there upto 15.9.2008 in ICU. On 13.9.2008, echo and T-test was done where mass was found in the heart and then CECT Chest was done. It was the same test suggested by Dr. Chouhan in his report dated 22.6.2008.The report of CECT scan dated 13.9.2008 was as under:-
- Vascular Right Artial Tumour (likely Angiosarcoma) with extensions as described in the text.
- Mediastinal Lymphodenopathy
- Pulmonary Metastasis.
- Pulmonary Thromboembolism
- Ascites
3. On the basis of this report, it was observed that there was a large soft tissue mass arising from free wall of right atrium and occupying the right atrial cavity enlarging it measuring approximately 10.2 x 8.4 x 8.3 cm in size. Same was observed in the CT Scan report dated 22.6.2008, therefore, there was gross deficiency in service and negligence on the part of Ops that they did not care to take precaution and further evaluation for confirming the disease and continued the treatment for TB to which the patient was never suffering and due to wrong and delayed diagnosis, the disease of cancer had grown to such an extent that it was difficult to control at that stage. Then family of the complainant took the complainant to First Appeal No. 11 of 2014 6 Hero Heart, Unit of DMC Hospital, Ludhiana and he was admitted there on the same day i.e. 15.9.2008. Further CT chest was done and cancer was confirmed. Doctors of that hospital tried to control the disease of Atrial Sarcoma, which had grown from small hypodensa mass in right Atrium and ascending Arota to the cancer tumour of the size of 10.2 x 8.4 x 8.3 cm. Patient spent a sum of Rs. 11 lacs in DMC, Ludhiana. Complaint was filed against Ops to pay back Rs.
50,000/- paid by the complainant to Ops for wrong treatment and Rs. 12 lacs he spent in DMC, Ludhiana for treatment of his cancer and Rs. 7 lacs as compensation.
4. Complaint was contested by Ops. Op No. 1 in its written version/reply took the preliminary objections that complaint was baseless and unwarranted; Op No. 1 is hospital imparting specialized services. Complainant was under treatment of Dr. Rominder Kaur, a practicing Pulmonologist. Complainant visited ODP of the hospital on 23.6.2008, he was examined by Dr. Rominder Kaur and Dr. Raj Kamal was consulted. After consultation, patient was advised to be admitted by the Consulting Doctors and was discharged on 25.6.2008. Before that he was under treatment of Dr. A.S. Bhatia, who had done CT Chest from Dhillon CT Scan and in the scan probability of Tubercular was given. Further investigation was suggested. When the patient had come to the hospital and after examination of CT report dated 22.6.2008, which showed Bilateral Pleural Effusion. Moreso on the right side with pericardial effusion and small mediastimal lymph nodes and ill defined mass adjacent to ascending aorta and right atrium. Pleural fluid aspiration was sent for First Appeal No. 11 of 2014 7 fluid for cytology, biochemistry and ADA. The report of the plural fluid indicated Lympho 90%, total proteins 5.37% with a total cell count of 3400 were suggestive of probability of Tubercular. There was no indication of any malignant cells. Echo of the patient was done outside and was examined by Dr. Rominder Kaur, which was NAD and then Dr. Rominder Kaur formed an opinion that TB Pleural and Pericardial effusion could be the cause. Since the features indicated tuberculosis, therefore, patient was put on Anti-tubercular treatment(for short ATT) and patient was discharged in a stable condition on 25.6.2008. The patient was again admitted in the hospital on 14.7.2008 with report of fever, sore throat, cough, H/o nausea, vomiting. His X-ray chest shown mild cardiomegaly. Chest consultation was taken and he was treated with appropriate antibiotics, bronchodilators and physiotherapy. He responded to the treatment and his condition gradually improved and was discharged on 16.7.2008. The patient was again came to the hospital with complaint of nausea and vomiting from one day on 13.9.2008. He was admitted and on investigation, he was found had episodes of PSVT. In view of his clinical condition, TEE done, it showed right arterial malignant tumour with extra cardiac extension with mediastinal tumour. He was treated with appropriate antibiotic and other supportive medicines and was referred to DMC, Ludhiana. After receipt of complaint, the office of Civil Surgeon called for the record vide letter dated 23.10.2009. An Expert Committee was constituted by him to give his report after examination of the complete medical record. The Expert Committee constituted, wanted some more record First Appeal No. 11 of 2014 8 from the hospital, which was furnished to them vide letter dated 29.10.2009 and the Board of Doctor had arrived at the conclusion that starting empirical Anti-TB drugs by the concerned Doctor was not wrong and not getting CT/MR Angiography initially should not be considered medical negligence. Then an other Expert Committee was constituted by PGI and they observed that tuberculosis is very common in country and can present with all the feature that the patient had and that therapeutic trial of ATT for 6 to 8 weeks may be justified. However, the complainant had not submitted the documents presenting the report of OPD prior to his admission. The report for Pleural fluid aspiration when the pleural was sent for Cytology, biochemistry and ADA indicated that Lympho 90%, total proteins 5.37% with a total cell count of 3400. No wrong treatment was given by Ops, therefore, there was no case of medical negligence or deficiency in service. On merits, averments taken in the preliminary objections were reiterated. It was stated that the treatment was given as per the report of the tests and when it was detected that the patient was suffering from Atrial Sarcoma, which is very very rare tumour and is also known for its very much aggressive behaviour, the patient was referred to DMC & Hospital, Ludhiana and further treatment was given by the DMC & Hospital, Ludhiana. He referred to certain judgments according to which no case of medical negligence was made out against Ops, therefore, complaint was without merit, it be dismissed.
5. Op No. 2 in its written version filed in the form of affidavit took the preliminary objections that complainant was not covered First Appeal No. 11 of 2014 9 under the definition of the consumer; complaint was not maintainable as no specific allegations were levelled in the complaint against these Ops; complaint was gross abuse of process of this Forum as the complainant had not approached the Forum with clean hands; there was no evidence worth to show that there was any evidence or deficiency or delay in services at the hands of this Op. The treatment was given on standard scientific lines adopting proper procedure as is given by a well qualified and experienced and competent Doctor and para-medical staff. The Consumer Fora cannot become a tool in the hands of unscrupulous persons, who file complaint merely with a view to extract money in the garb of compensation. No specific allegations were levelled against this Op being wrong, negligent or deficient in service. Complaint was without any basis, therefore, it was liable to be dismissed under Section 26 of the Act; complaint was bad for mis- joinder/non-joinder of parties. This Op was unnecessarily made a party as past and future treating Doctors were not made a party; the matter in dispute required lengthy and detailed evidence, which was not possible in summary procedure under this Act, therefore, the matter be referred to the Civil Court and that the compensation claimed was too exaggerated. On merits, it was submitted that the complainant had concealed the OPD slip of Dr. A.S. Bhatia with malafide intention. However, CT report dated 22.6.2008 of Dhillon CT Scan Centre gave findings of tubercular etiology. Since CT scan in this case was under contrast, role of CT/MR angiography of the patient at that stage with the history of ongoing ailment as well as clinical presentation was not significant. However, when the First Appeal No. 11 of 2014 10 complainant reported to Ops on 23.6.2008 for the first time and on subsequent occasions, he never complained nor gave history of chest pain. Reference of complainant suffering from chest pain on 22.6.2008 and on subsequent occasions during course of treatment from Ops was mentioned with malafide intention or he did not give proper history of his ailment. The patient was having CT Scan Chest dated 22.6.2008 giving Probable Tubercular Etiology with bilateral pleural and pericardial effusion as well as Echocardiography report giving not abnormal findings. Report of Echocardiography was concealed by the complainant, therefore, the diagnosis was in favour tuberculosis, which was most common disease. Accordingly, immediate treatment was started. Plural fluid tapping was done and it was sent for Cytology, the report of which was of benign nature with exudative fluid with predominantly lymphocytes, which was again in favour of tuberculosis, accordingly, the patient was given ATT and patient responded to the treatment and he was discharged on 25.6.2008 with the follow up after 5 days. He again reported on 30.6.2008 and ATT treatment was continued. Then he further appeared on 7.7.2008 and his general condition was better and accordingly, treatment was reviewed. Nowhere report of CT Scan or Echocardiography mentioned or suggestive or indicative remotely, directly or indirectly of malignant lesion. Even if there was error of omission on the part of this, Op not to get CT/MR Angiography, CT in question gave conclusive findings probably tubercular and similar findings were given by Board of Doctors of Civil Surgeon, Amritsar as well as PGI. Therefore, there was nothing bad in the treatment given First Appeal No. 11 of 2014 11 by this Op. When the patient reported on 7.7.2008, same treatment was reported. He again visited Op hospital on 14.7.2008, X-ray chest was got done, which showed mild cardiomegaly with no evidence of pleural effusion and on 16.7.1998, he was discharged. He again reported on 13.9.2008, he was found to have episode of PSVT and he was advised various investigation and his Trans Esophageal Echo showed right atrial malignant tumour with extra cardiac extension, Medistinal tumour and accordingly, he was referred to DMC, Ludhiana and after that further treatment was given in DMC, Ludhiana. Accordingly, it was submitted that there was no negligence in giving treatment or any deficiency on the part of this Op. Complaint was without merit, it be dismissed.
6. The parties were allowed by the learned District Forum to lead their evidence.
7. In support of his allegations, the complainant had tendered into evidence affidavit of Kirandeep Singh Ex. C-1, CT Scan Chest report Ex. C-2, Fortis OPD slip Ex. C-3, discharge summary Ex. C-4, certificate Ex. C-5 & 6, letter to Civil Surgeon, Amritsar Ex. C-7, discharge summary Ex. C-8, certificate Ex. C-9 & 10, investigation reports Ex. C-11 to 13, clearance for discharge Ex. C- 14, CT report Ex. C-15, medical record of DMC Exs. C-16 to 31, letter by Civil Surgeon, ASR Ex. C-32, medical notes Ex. C-33, 34. On the other hand, Op No. 1 had tendered into evidence affidavit of Dr. Jasdeep Singh Ex. R-1, IPD Medical Record Ex. R-2 to 4, affidavit of Dr. Pinak Moudgil Ex. R-5. Op No. 2 had tendered into evidence affidavit of Dr. Rominder Kaur Ex. R-6 & 7, affidavit of Dr. Atul Kapoor First Appeal No. 11 of 2014 12 Ex. R-8, affidavit of Dr. Varinder Saini Ex. R-9, reports of Expert Committee Exs. R-10 & 11.
8. After going through the allegations in the complaint, written versions filed by Ops, evidence and documents brought on the record, it was found that on 22.6.2008 when the complainant approached Dr. A.S. Bhatia, he suggested for CT Scan and Chest, which was got conducted from Dhillon CT Scan Centre on the basis of CT Scan, it was referred that there was ill defined Hypodense Lesion adjacent to the ascending Aorta, which needed further evaluation and was advised to correlate clinically and further CT/MR Angiography. For better treatment patient reported Ops on 23.6.2008 and he was attended by Dr. Rominder Kaur, who referred for certain clinical test and did not go for CT/MR Angiography. According to her, it was got done by the patient from outside hospital as is referred in the patient file Ex. R-2 wherein there is a reference of Echo(from outside) - NAD but in fact no such Echo was got done. Only CT Scan was got done from Dhillon CT Scan Centre as referred by Dr. Chouhan. This fact was further corroborated by the statement of Dr. Rakesh Chouhan, MD, Radiognosis, Dhillon Scanning Centre, Amritsar, who conducted CT Scan of the patient and had categorically stated that the patient had never come to Dhillon Scanning Centre for Echo Test, therefore, it is not clear how Op No. 2 mentioned in the patient file Ex. R-2 Echo from outside history/NAD. Op No. 2 continued with ATT whereas the complainant was not feeling any improvement. Before starting the treatment, CT/MR Angiography was not taken by Op No. 2 to rule out any other disease. First Appeal No. 11 of 2014 13 Even if on that day, it was not done, it was not repeated on subsequent dates and when the position of the complainant became deteriorated then on 13.9.2008, he referred for 'CE CT Chest', which indicated a huge malignant tumour of 10.2 x 8.4 x 8.3 cm in size, therefore, on account of delayed CT/MR Angiography Hypodense lesions had developed into huge malignant tumour and it is of a very aggressive nature and ultimately, the complainant died on account of this disease on 12.12.2010. Therefore, for not conducting the relevant test and going for wrong treatment, which allowed the minor Hypodense into a big tumour on account of medical negligence on the part of Ops. Accordingly, the complaint was allowed as referred above.
9. Aggrieved with the order passed by the learned District Forum, both the appellants/Ops have filed the these appeals.
10. We have heard the counsel for the parties and have carefully gone through the oral arguments of counsel for the parties and written arguments submitted by appellant/Op No. 1 in F.A. No. 11 of 2014.
11. In both the appeals, orders have been challenged by both the Ops, therefore, all grounds of appeal and oral arguments of both the parties are similar because the treatment was given by Op No. 2 and Op No. 1 is the Hospital, therefore, the common findings of both the appeals are given.
12. Before going for the grounds of appeal as taken by counsel for the parties, brief history of the treatment given by Ops to the patient is necessary. On 23.6.2008, at about 12.30 a.m., First Appeal No. 11 of 2014 14 complainant report in OPD of Op No. 1 and he was referred to Dr. Rominder Kaur Op No. 2. At that time, he was having prescription slip of Dr. A.S. Bhatia, who had suggested CT Scan and Echo. Patient was having report of CT Scan from Dhillon CT Scan Centre. He recommended to correlate clinically and for CT/MR Angiography and Etiology was probably tubercular. Op Hospital took some clinical test and after that they suspected tubercular and ATT treatment was started it continued upto 13.9.2008 when the condition of the patient was critical and on 13.9.2008 on investigation, he was found to have episode of Paroxysmal Supraventricular Tachycardia (PSVT). On the basis of findings of Trans Esophageal Echocardiography showed 'right Atrial Malignant Tumour with Extra Cardiac Extension' and on the basis of that, the patient was referred to DMC Hospital.
13. Counsel for Ops argued that the findings of the District Forum that Op No. 2 did not follow the second line of treatment to find out the possibility of second advice given by Radiologist in his report Ex. C-2 regarding ill defined hypodense lesion due to the fact that the patient when approached on 23.6.2008 brought with him the report the report of CE CT Scan and Echo. Both got done from Dhillon CT Scan Centre, Amritsar and as per Echo Report, it was NAD, therefore, she did not call for expensive investigation for CT/MR Angiography. However, this explanation was not found favour to the District Forum as the complainant had categorically submitted in her complaint that she got test with CT Scan and not of Echo from Dhillon CT Scan Centre, Amritsar. Further Dr. Rakesh Chouhan appeared as a witness before the District Forum on 19.8.2010 and he in his First Appeal No. 11 of 2014 15 statement has categorically stated that the patient did not turn up for CT/MR Angiography. However, OPD prescription of patient dated 23.6.2008 in Ex. R-2 stated Echo from outside - NAD. It is not clear from where the Doctor had referred Echo - NAD. During evidence of the parties, Ops had referred CT Scan of chest Ex. C-2 and its detail has also been given in the patient file Ex. C-2 (R-2). Therefore, Op No. 2 in patient file dated 23.6.2008 had referred Echo outside hospital without any basis. No such report was placed on the record and moreover, when Dr. Rakesh Chouhan of Dhillon CT Scan Centre had appeared as a witness before the District Forum and had categorically stated that the patient did not appear for CT/MR Angiography then certainly, those findings recorded by Op No. 2 in the patient file Ex. R-2 are incorrect findings. Counsel for Ops while contradicting those findings in his written arguments has stated that it was a document outside the hospital, therefore, they did not keep it on the record and the document was concealed by the patient. In case other documents have been placed on the record, we do not see any reason why the complainant will conceal particularly that document. When the complaint was filed, firstly report was sought from the Civil Surgeon, Amritsar from Specialists Doctor of which a Board was constituted by Civil Surgeon, Amritsar and in their report Ex. R-19 in which CT Chest report has been referred and they have also referred Echocardiography as referred in the record as NAD and according to the report of these Doctors, the decision of starting the Empirical Anti-TB Drugs by the concerned Doctor was not wrong and not getting CT/MR Angiography should not be considered medical First Appeal No. 11 of 2014 16 negligence. Against that report, counsel for the complainant had raised objections, these objections were considered by the District Forum and then the matter was referred to the PGI to constitute the Board of Doctors and to give the opinion about any alleged medical negligence on the part of the Doctor in giving the treatment to the patient and the report of PGI is Ex. R-11, which reads as under:-
"The complainant had presented to the Fortis Escort Hospital and Dr. Rupinder Kaur on 23.6.08 with complaints of fever and chest pain. Prior to this, he had a CT scan done on the 22.6.2008, which had shown bilateral pleural effusion, mild pericardial effusion and small mediastinal lymph nodes and ill defined mass adjacent to ascending aorta and right atrium. The patient was put on anti-tubercular treatment (ATT) after being admitted for investigations from 23.6.08 to 25.6.08. As per the photocopy of the first OPD card of Fortis Hospital provided (Annexure II) pleural fluid aspiration was done and fluid sent for cytology, biochemistry and ADA. The reports of these investigations are not available, it is mentioned in the discharge slip of the Fortis Hospital (annexure 4) that details of investigations (if any) are attached as per annexure-1, however, no annexure is provided. It is pertinent to note that tuberculosis being very common in country and can present with all the features that the patient had, a therapeutic trial of ATT for 6 to 8 weeks may be justified, however the results of the investigations mentioned above (initial pleural fluid First Appeal No. 11 of 2014 17 examination) are mandatory before any comment on justification to start ATT can be made."
14. It also refers that report of the investigation were not made available and comments were given on the basis of history recorded in the discharge slip. It was further observed that tuberculosis is very common in the country and can present with all the features that the patient had, a therapeutic trial of ATT for 6 to 8 weeks may be justified. As per the allegations made by the complainant that although the treatment of tuberculosis was started by Ops but the complainant was not getting any relief. As per the averments in the complaint, he had reported to Op Hospital on 30.6.2008 then on 7.7.2008 and 14.7.2008 and he remained admitted there upto 16.7.2008, 28.7.2008, 11.8.2008 and then on 13.9.2008. On 14.7.2008, the diagnosis was made by the Doctor as "Pulmonary Koch's B/L Pleural Effusion" and only X-ray chest was referred, which showed mild cardiomegaly and only antibiotics were given. Therefore, in case the complainant was coming time and again for the chest problem, then it was required for Op No. 2 to have referred for CT/MR Angiography. But ultimately, when the condition of the patient became critical then it was done only on 13.9.2008 and this report is as under:-
"There is a large soft tissue mass arising from free wall of right atrium and occupying the right atrial cavity enlarging it and measuring approx 10.2x8.4x8.3 cm in size. It is infiltrating into the pericardial cavity and is extending into the superior vena cava is dilated. It is prolapsing across the tricuspid valve into First Appeal No. 11 of 2014 18 the right ventricle. Inferiorly it is compressing upon the IVC RA junction. The mass shows marked contrast enhancement and large necrotic areas. Right ventricle & pulmonary anteries are small in caliber.
IVC and azygos vein are dilated.
There is a filling defect in inferior division of left pulmonary artery - thrombus.
Multiple enlarged right paratracheal & prevascular lymphnodes are seen.
Nodular lesions are seen in both luns - pulmonary metastasis. Bilateral pleural effusion.
There is evidence of ascites.
Impression *Vascular right atrial tumour (Likely Angiosarcoma) with extension as described in Text * Mediastinal Lymphadenopathy * Pulmonary Metastasis * Ascites * Pulmonary Thromboembolism"
According to that there was a large soft tissue mass arising from free wall of right atrium and occupying the right atrial cavity enlarging it and measuring approximately 10.2x8.4x8.3 cm in size, therefore, what had appeared in CT report dated 22.6.2008 (Ex. C-2) i.e. ill defined hypodense lesion adjacent to the ascending aorta and the right atrium had become into a big tumour. In case CT MR Angiography would have been done at the initial stage or after a gap of 6 weeks, there was every possibility that these disease would have First Appeal No. 11 of 2014 19 been detected and instead of tuberculosis, the treatment of cancer would have been started and in case the cancer is at the initial stage then it was easy to control it by way of Chemotherapy or other medicines but once it has grown then it was very very difficult to check it. As per the medical literature submitted by the counsel for the appellant about 'Amschwand Sarcoma Cancer Foundation' in the paper by Dr. Michael J. Reardon on Cardiac Angiosarcoma, wherein it has been observed as under:-
"Cardiac tumors are rare and malignant cardiac tumors such as angiosarcoma are even less common. Because of their rarity, few individual physicians acquire much experience in their treatment. My best advice is to seek out institutions and physicians in these institutions with a reasonable level of experience in dealing with this disease."
He has further referred to an other literature of Texas Heart Institute Journal on 'Surgical Treatment of Primary Cardiac Sarcomas' wherein it has been referred as under:-
"Primary cardiac tumors are rare: the autopsy incidence is 0.0001% to 0.0003%, or, in practical terms, about 1 in every 500 cardiac surgical cases. These primary cardiac tumors are 75% benign and 25% malignant, and, of the malignant tumors, 75% are sarcomas. Primary cardiac sarcomas often afflict young patients who have no predisposing factors, and these tend to have a dismal prognosis. In studies involving medical therapy alone, 90% of primary-cardiac-sarcoma patients have been dead within 9 to 12 months. Series of soft-tissue First Appeal No. 11 of 2014 20 sarcomas outside of the heart have shown that complete surgical excision - or sequential resection of metastatic disease, when possible - yields the best long-term survival."
It is clear from above that primary cardiac sarcomas was of very aggressive nature. However, if it could have been detected at the initial stage then the result would have been different. Op No. 2 in his written statement has taken a plea that in case for the sake of arguments, it is taken that she did not refer for CT/MR Angiography and it is only an error of judgment and error of judgment cannot be treated as a case of medical negligence. Counsel for Ops has referred to the judgment "Martin F. D'Souza Vs. Mohd. Ishfaq" AIR 2009 SC 2049. It is only with regard to taking expert opinion before admitting the complaint the matter was referred to the expert opinion. It is only an opinion. Even if the report is in favour of the Doctor, it is no bar to admit the complaint, after going through the other evidence on the record. He has further referred to another judgment of the Hon'ble Supreme Court "Jacob Mathew (Dr.) versus State of Punjab & Anr." III (2005) CPJ 9 (SC) wherein it has been observed by the Hon'ble Apex Court that simple lack of care, error of judgment or accident is not proof of negligence on part of medical professional. Failure to use special or extraordinary precautions which might have prevented particular happening cannot be standard for judging alleged negligence. It was also observed that res ipsa loquitur is only rule of evidence and operates in domain of civil law especially in cases of Torts and helps in determining onus of proof in actions relating to negligence. Therefore, on the basis of error of judgment, First Appeal No. 11 of 2014 21 Ops cannot be held liable for medical negligence because the Doctor conducted treatment according to their ability and on the basis of investigation report. In case one investigation report was not there then the Doctors cannot be held liable for any medical negligence. But it is to be analyzed what is the nature of error committed by the Doctor. When in the CT report dated 22.6.2008, it was specifically referred by Dhillon CT Scan Centre, clinically and further CT/MR Angiography, which was not opted for by the treating Doctor Op No. 2 as referred above and further as per the opinion expressed by the Medical Board of the PGI, a therapeutic trial of ATT for 6 to 8 weeks may be justified, therefore, atleast after 6-8 weeks, Op No. 2 should have gone for CT/MR Angiography but she did not opt for and continued to stick to tuberculosis treatment. It was only when the condition of the patient became critical that she referred for CT/MR angiography where the tumour was detected. Therefore, it is not an ordinary error because it had changed the life of the patient. In case there would have been timely detection of the disease then the expectancy of the life was there and the patient could not be saved due to delay in diagnose by the Doctor; it amounts to medical negligence, it has been so held by the Hon'ble National Commission in the recent judgment reported in II(2016) CPJ 167 (NC) "Ritu Garg versus Vineet Sharma & Anr." wherein it was observed that Op No. 1 failed to diagnose dislocation at initial stage and put the slab only. Due to delay in diagnosis of subluxation at initial stage the child suffered for 1½ months, finally got operated for ulnar osteotomy and redial head annular ligament reconstruction, therefore, Op No. 1 First Appeal No. 11 of 2014 22 failed in standard of care to examine and diagnose the patient at initial stage and it was held that it is a case of medical negligence. This judgment is fully applicable to the facts and circumstances of our case, whereas it was not rebutted by counsel for the Ops because despite indication in the CT Scan report of Dhillon CT Scan Centre, Op No. 2 did not opt for CT/MR Angiography at the time of admission in the hospital. Her version referred in the patient file Ex. R-2 'Echo (from outside) - NAD has been found to be incorrect. Even she in her written reply has also stated that in case she did not refer for CT/MR angiography, it was just and error. The patient was complaining time and again and he visited Op Hospital number of times before 13.9.2008 when finally the patient was referred for CT/MR Angiography when the tumour was detected, by that time, it was an at advanced stage. Though the treatment was taken but patient could not be survived and died on 12.12.2010. We are of the opinion that the findings recorded by the District Forum are correct that it is a case of medical negligence. We have no reason to differ with those findings and these are hereby affirmed.
15. In view of the above, we do not see any merit in both the appeals and the same are dismissed with no order as to costs.
16. The appellant in F.A. No. 11 of 2014 had deposited an amount of Rs. 25,000/- and Rs. 2,75,000/- with this Commission in the appeal. This amount with interest accrued thereon, if any, be remitted by the registry to LRs of complainant/respondent No. 1 in equal share by way of a crossed cheque/demand draft after the First Appeal No. 11 of 2014 23 expiry of 45 days, from the despatch of the order to the parties; subject to stay, if any, by the higher Fora/Court.
17. The appellant in F.A. No. 12 of 2014 had deposited an amount of Rs. 25,000/- on 27.5.2014 and Rs. 2,75,000/- on 11.2.2014 with this Commission in the appeal. This amount with interest accrued thereon, if any, be remitted by the registry to LRs of complainant/respondent No. 1 in equal share by way of a crossed cheque/demand draft after the expiry of 45 days, from the despatch of the order to the parties; subject to stay, if any, by the higher Fora/Court.
18. Remaining amount, if any due, shall be paid by OPs to LRs of complainant/respondent No. 1 within 30 days from the receipt of the copy of the order.
19. The arguments in these appeals were heard on 8.4.2016 and the orders were reserved. Now the orders be communicated to the parties as per rules.
20. The appeals could not be decided within the statutory period due to heavy pendency of Court cases.
(Gurcharan Singh Saran) Presiding Judicial Member (Jasbir Singh Gill) Member April 21, 2016. (Surinder Pal Kaur) as Member First Appeal No. 11 of 2014 24