consumer case(CC) No. OP/05/25

BALAGOPALAN, S/O RAGHAVAN NAIR
...........Appellant(s)

Vs.

DR. AJITHKUMAR VARMA, K.P.M HOSPITAL

M/S K.PM HOSPITAL
...........Respondent(s)


BEFORE:
1. AYISHAKUTTY. E
2. C.S. SULEKHA BEEVI
3. MOHAMMED MUSTAFA KOOTHRADAN


Complainant(s)/Appellant(s):


OppositeParty/Respondent(s):


OppositeParty/Respondent(s):


OppositeParty/Respondent(s):
ORDER

By Smt. C.S. Sulekha Beevi, President,

1. Complainant who is a school teacher was taken to opposite party hospital after a fall from the terrace of his residence on 25-3-2003 at 11 P.M. He had pain all over the body. First opposite party examined him and advised to take X-rays and C.T. Scan. After examining these investigative reports first opposite party admitted and treated the complainant at opposite party hospital till 29-3-2003. At the time of discharge he had back pain and also pain on the left thumb. But first opposite party told him that the pain would subside soon as necessary treatment were already given. It is stated that his back pain and pain on thumb persisted even after discharge and he then approached Asha Hospital at Vatakara. From this hospital he was told that there is fracture to his vertebrae and also to the left thumb. Fracture of vertebrae was treated at Asha Hospital. He was then referred to Medical College, Kozhikode for the treatment and management of fracture of the thumb as it had become old. Complainant alleges that he had to undertake subsequent treatment at Asha Hospital and Medical College because of the fail on the part of first oposite party to diagnose the fractures and render proper treatment. That he still has pain on the back and thumb and that the doctors who treated him opined that it was because the fracture was not treated in the first instance itself. Complainant claims for Rs.50,000/- towards pain and suffering, Rs.35,000/- towards medical expenses, Rs.50,000/- towards loss of amenities in life and Rs.1,00,000/- as compensation.

2. Opposite parties have filed a combined version denying the allegation of medical negligence. It is submitted that first opposite party doctor worked as a consultant surgeon in second opposite party hospital from 25-11-1999 to 30-4-2004. Opposite party admits that complainant was brought to opposite party hospital on 26-3-2003 at 12.25am stating that he fell down from the terrace of his house. He was conscious X-ray and C.T. Scan were taken. These were normal. First opposite party noted that the complainant should be seen by an Orthopaedician. He was admitted in IMCU at 1.30 am. Medicines for pain were given. No fracture of bone were found. His vital signs were checked and found normal. His right foot showed swelling and he complained of pain on right foot. Medicines and cold application was given. On the same day he was shifted to the room at 9 am. He was treated for two more days and discharged on 29-3-2003, with direction to review as S.O.S. The patient did not turn up. He had also been instructed to take medicines after discharge. That he never complained of pain to left thumb. The X-rays taken at opposite party hospital did not reveal any fracture. The investigations showed that he had no fracture at that time. The other allegations are denied as false. That complainant is not entitled to any reliefs.

3. Evidence consists of the oral evidence of complainant who was examined as PW1 and Exts.A1 to A13 marked for him. On behalf of opposite party DW1 and DW2 were examined and Ext.B1 marked.

4. Points for consideration:-

(i) Whether opposite parties are deficient in service.

(ii) If so, reliefs and costs.

5. Point (i):-
According to complainant after he was admitted in opposite party hospital he complained of back pain and pain on his left thumb to first opposite party doctor. He alleges that though investigations by taking X-ray was done first opposite party doctor failed to diagnose the fracture to his vertebrae and the fracture to his left thumb. That due to the fail to properly diagnose the fracture, necessary treatment for this was not given by first opposite party. His pain on the back and thumb persisted even after discharge. So he approached Asha Hospital, Vatakara. From this hospital, compression fracture to the vertebrae was detected and treatment was rendered. Fracture (dislocation) to left thumb was also detected. It is his say that because the dislocation had become old by this time, it could not be treated from Asha hospital and he was referred to Medical College, Kozhikode. From the Medical College Hospital the thumb was treated by ORIF with K-wire fixation. Complainant alleges that first opposite party doctor did not apply reasonable care and failed to diagnose the fractures which is negligence amounting to deficiency in service. That due to failure in entering proper diagnosis, the complainant was not given proper treatment. It is also his grievance that due to the negligence he had to undergo further treatment at other hospitals and had to suffer much inconvenience, hardship and incur huge expenses.

6. Denying the allegations of medical negligence it is contended by opposite party that complainant was given proper and correct treatment after the diagnosis made from the complaints put forward by complainant as well as from the investigations done. That the X-rays taken from opposite party hospital did not reveal any fracture. The complainant was seen by an Orthopaedician also. Opposite party vehemently denies that the complainant complained of pain on his left thumb. That no such complaints were made during his stay at opposite party hospital. That right care and treatment was given to the complainant.

7. The crux of the allegations of medical negligence levelled against opposite parties is mistaken diagnosis or fail in diagnosis. In the realm of diagnosis and treatment, there is ample scope of difference of opinion. A medical practitioner owes a duty to diagnose his patients condition. The doctor is not only to make inquiries in ascertaining the data, but can also advice for investigations to exclude or confirm his findings of clinical examination. The doctor usually reaches the conclusion of diagnosis upon the data collected from patient and the investigative reports. An error of diagnosis or clinical judgment does not always amount to negligence. Whether an error of clinical judgment amounts to negligence depends on the circumstances of each case. 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 it, acting with ordinary care in the given circumstances.

8. The questions that then arise for analysation are (i) whether first opposite party has committed failure in diagnosis (ii) whether such failure is below ordinary standards.

9. On behalf of complainant it is submitted that while under the treatment of first opposite party an x-ray of thoracic-lumbar spine was taken. It is contended that this X-ray revealed fracture of vertebrae, but first opposite party failed to diagnose this fracture because he did not apply reasonable care. To substantiate this contention complainant relied upon Ext.A3 to Ext.A6 which are prescriptions issued from Asha Hospital, Vatakara. The counsel for complainant drew our attention to the entry in Ext.A3 where it is seen stated as 'Available X-ray T.L. Spine – Compression fracture T7, T8'. It is submitted on behalf of complainant that the "Available X-ray' mentioned in Ext.A3 is the X-ray taken from opposite party hospital. It is thus argued on the side of complainant that first opposite party doctor has been negligent in reading/perusing the X-ray and finding out the fracture of Vertebra.

10. This allegation in countenanced by opposite party who contends that the X-ray taken from opposite party hospital did not reveal any fracture.

11. We have to say that complainant has not produced before us the X-rays taken from opposite party hospital or the X-rays taken from Asha hospital. Ext.A3 to A5 are the prescriptions issued from Asha hospital. These do not bear the name of the complainant. But opposite party has not challenged these documents in this regard. The prescriptions show treatments undertaken as out patient. Complainant does not have a case that he was treated as inpatient at Asha Hospital. It is not seen stated in Ext.A3 on which date the complainant first approached Asha hospital. Undisputedly the complainant was discharged from opposite party hospital on 29-3-2003. In Ext.A3 the date of second consultation is noted as 12/4. The entries in Ext.A3 on a date prior to 12/4 is as under:



"H/o fall – 10 days back from height

C/o pain back, oedemat (Rt) ankle of foot

Available X-ray T.L. Spine – Compression fracture T7, T8

No DND.

Advice – Fresh X-ray – Compression fracture T7, T8 left ankle NBI."

12. On the same day he is seen adviced to wear brace (belt), and also elastic bandage application to leg Medicines are seen prescribed; with advice to review after one week. The next consultation date is 12/4. On this day it is seen noted in Ext.A3 that pain back decreasing no other complaints are seen noted. It is candid from Ext.A3 that even if there was a fracture to vertebra it was a minute one which needed no particular procedure of fracture management other than simple conservative management of wearing a belt. Complainant has not produced the X-ray taken from opposite party hospital or the X-ray taken from Asha Hospital and adduced expert evidence to prove that these X-rays do invariably reveal a fracture of T7 and T8 vertebrae which can never be missed by a medical practitioner of ordinary skill. Neither is it is seen from Ext.A3 nor any evidence adduced as to what is the qualification of the doctor who treated the complainant at Asha Hospital and diagnosed the compression fracture of vertebrae. Needless to say that medical opinion may differ from one expert to another. However, it is seen from documents that he was relieved of the fracture by treatment of wearing belt, bed rest and spinal exercises. There is nothing to establish before us that the 'available X-ray' mentioned in Ext.A3 is the X-ray taken from opposite party hospital. There is nothing placed before us to establish that the X-ray taken from opposite party hospital does reveal fracture of vertebrae. Complainant cannot discharge the onus to prove negligence by asking the Forum to do a guess work that the available X-ray mentioned in Ext.A3 is the X-ray taken from opposite party hospital. Medical negligence has to be proved. It cannot be presumed. Only because it is seen stated in Ext.A3 that available X-ray shows compression fracture, we are not inclined to accept the argument of the complainant that the X-ray taken from opposite party hospital revealed a fracture of vertebrae and first opposite party missed diagnosing it.

13. On perusal of Ext.B1 case sheet we find that first opposite party doctor has done proper investigations to rule out the possibility of fracture basing upon the complaints voiced by the complainant. He has reached his diagnosis of no fracture to bone after perusing the X-rays. In Ext.B1 case sheet the complaints noted by opposite party on the date of admission, 26-3-2003 at 12.25 am are as under:

"H/O fall from terrace about 12 feet. Patient has Tachipnea, pain chest, pain lumbar region, pain right foot. No loss of consciousness. BP 150/80. P.R 72/mt. There is a contusion on the parietal region of head."

The doctors orders are as under:

"X-ray chest, X-ray lumbar thoraxospine, X-ray right foot, C.T. Scan brain."

Medicines are given and it is also seen stated as

"case to be seen by surgeon and Orthopaedician."



On the same day at 2.00am it is noted in Ext.B1 that in X-rays and C.T.scan no abnormalities were detected. The patient was managed with medicines and discharged on 29-3-2003. On the day of discharge it is noted "contusion body (generalised) wound ® Toe.Review SOS". Ext.A2 discharge card also shows the very same entries. First opposite party is a surgeon and the complainant was seen by an Orthopaedician also. Complainant does not deny that he was seen by an Orthopaeidician. The evidence of the complainant who is a school teacher in this regard is evasive. In cross examination he has stated as follows:
"1- എതൃ കക്ഷി general surgeon ആണ് എന്നു പറഞ്ഞാല്@ എനിക്കറിയില്ല. 1- എതൃ കക്ഷി എന്നെ പരിശോധിച്ച ശേഷം Orthopaedic Surgeon എന്നെ പരിശോധിച്ചുവോ എന്ന് എനിക്ക് അറിയില്ല. വേറെ വല്ല doctor- ഉം പരിശോധിച്ചുവോ എന്നും അറിയില്ല. "
14. As seen from records complainant was seen by a surgeon as well as Orthopaedician at opposite party hospital. From the investigations opposite party doctors did not find any fracture. There is no evidence adduced before us to prove that first opposite party did not act according to the medical protocol of the given situation. We therefore are unable to conclude that there was a fail in diagnosis on the part of first opposite party doctor in regard to fracture vertabrae.

15. The second allegation raised by complainant is the fail to diagnose the fracture to the left thumb. Opposite party has consistently and vehemently stated that complainant has not voiced any complaint of pain to left thumb during his stay at opposite party hospital. On perusal of Ext.B1 case sheet, as already stated in para 13, on the day of admission no complaint of pain to thumb has been stated by the complainant. It is pertinent to note that the doctor has recorded pain on right foot. All through his stay at opposite party hospital it is not mentioned any where that complainant has pain to left thumb. On perusal of Ext.A3 to Ext.A6 which are prescriptions from Asha Hospital we are able to see that during the consultation of Ext.A3 or Ext.A4 prescriptions of various dates the complainant has not stated to the doctor at Asha Hospital that he has pain on left thumb. On much later consultation (after almost 3 consultations) only in Ext.A5 (no date) it is seen recorded as "pain back decreasing. Complaint of pain on left thumb. On examination interphalangial dislocation." It is only as per Ext.A5 that X-ray of thumb was adviced from Asha Hospital and the dislocation of bone in the thumb was diagnosed. He was then advised for open reduction. In Ext.A6 it is stated that the patient did not come for open reduction on the prescribe date and now the dislocation is 1½ month old and he was then referred to Medical College, Kozhikode. It is crystal clear from the documents that complainant has made complaint of pain to left thumb only at the fourth consultation at Asha hospital. This would only substantiate the case of opposite party that complainant did not complaint about pain on left thumb during his stay at opposite party hospital. If complainant has not given necessary data to the doctor, he cannot later turn around and blame the doctor stating that there is a fail in diagnosis and his fracture was left unattended. Without any hesitation we are able to conclude that there was no fail in diagnosis on the part of first opposite party doctor amounting to medical deficiency.

16. Normally a doctor gains nothing by suppressing a fracture if it is known to him from the X-ray. Negligence implies an act done with fore knowledge that such an act is likely to cause harm to the other person. The Apex Court has observed in a catena of cases that negligence in the context of medical profession necessarily calls for a treatment with a difference. A simple lack of care, an error of judgment or an accident is not proof of negligence on the part of medical professional. So long as a doctor follows a practice acceptable to medical profession of that day, he cannot be held liable for negligence. 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 the profession. A highly skilled professional may be possessed of better qualities but that cannot be the yardstick, for judging the performance of the professional proceeded against with allegation of negligence, the test is whether there is real failure to behave as a reasonably competent practitioner would have behaved. This implies recognition of the nature of ordinary human error and human limitations on the performance of duties. In a recent decision 2009 CTJ 1162 (CP) SCDRC., Kolkatta, Krisha Pada Kundu vs. Dr. R.N. Gosh and others it was held that wrong diagnosis of a patient on the very first day or inability of the doctor to make a correct diagnosis within one day is not a case of medical negligence. In the said decision after bone marrow test the doctor had diagnosed the complainant to have blood cancer. The patients relative was also told that there was less chance of survival. But when the patient was taken to Tata Memorial Hospital, Mumbai and fresh tests were done, the bone marrow showed normal condition and disproved the presence of carcinoma cells. The State Commission had confirmed the verdict of the District Forum dismissing the complaint. In 2005 (1) CPJ 64(NC) M. Srinivas vs. Smt (Dr) Rama Thulasi & another the failure to diagnose jaundice well in time and by which the patient expired later was held to be not deficiency in service on the part of doctor. The opinion formed in diagnosis may vary from one medical expert to another expert. Only on the diagnosis, treatment is given. Wrong diagnosis or fail to diagnose will tatamount to negligent diagnosis only of the diagnosis is so palpably wrong ie., if the mistake is of such nature as to imply the absence of reasonable skill and care on his part, regard being had to the ordinary level of skill in the profession.



17. Before we part with the order, we have to say that complainant has not adduced any expert evidence to prove the allegation. Counsel for opposite party relied upon the decision in 2009 NCJ 642 (NC) Kamal Bai Pandey Vs. Dr. P.C. Dwivedi where it was held that expert opinion is essential to prove medical negligence. The recent decision of Apex Court in Martin D'Souza Vs. Mohd.Ishfaq has highlighted the necessity to adduce expert evidence to prove medical negligence.

18. From the above discussions, applying the principles of law laid, and the totality of facts and evidence placed before us we are of the view that there is no medical negligence on the part of first opposite party doctor. Complainant has failed to establish a case against opposite parties. We find opposite parties not deficient in service.

19. In the result we dismiss the complaint. No order as to costs.