Consumer Complaint No:496/2007


Between:

Sri J. Sriramulu, S/o Late Rama Krishnamma, aged 72 years, Hindu, R/o D.No.14-34-10/6, SVS Residency, Maharanipeta, Visakhapatnam – 2.

… Complainant
And:

1. The Managing Director, Seven Hills Hospital, Visakhapatnam
2. Dr. Rana Danda, D.R.M., (B.A.R.C., D.N.B. (N.M), MNAMS, Consultant Nuclear Physician, Seven Hills Hospital, Visakhapatnam.

... Opposite Parties

This case coming on for final hearing on 17-04-2009 in the presence of Sri.A.Kameswara Rao, Advocate for the Complainant and of Sri. B.A.Raja Rao, Advocate for the 1st Opposite Party and Sri.D. Satya Varma, Advocate for the 2nd opposite party and having stood over till this date, the Forum delivered the following:

: O R D E R :

1.The complainant, a resident of Visakhapatnam, in the month of January 2005, under went test for Bone Scan on the advise of Dr. Sivananda, Orthopedic Doctor to rule out any metastases. The test is available at the 1st opposite party’s hospital only. The 2nd opposite party conducted the test and issued a report on 25-02-2005 with his findings “Increased Tracer-uptake is seen in the following area (s) of the skeleton, i) lateral end of right clavicle ii) left aspect of mandible (body), iii) L3 Vertebra (right aspect) & lower sacrum mid-dorsal spine iv) right medical maleolus. Rest of the skeleton shows normal traces concentration. Both kidneys are normally visualized.” A finding is given that “abnormal tracer-uptake in the above areas is suggestive of Bone-Metastases(please correlate Radiologically)”. When he ultimately consulted Dr. S.B.R. Narasimham, Cardio Therosic Surgeon, he suggested that it is not advisable to make surgery to the complainant since Bone metastases is dangerous and patient cannot recover within 6 months even after surgery successful and there is no possibility to live further period of six months. Then, the complainant got made radiology test as suggested by the 2nd opposite party, but they showed negative opinions. Doctors related to Ortho, Dentist etc, suggested that the symptoms of Bone metastases are not co-related with the report issued by the 2nd opposite party and they suggested 2nd opinion from NIMS Hospital. There he was examined by Dr.(G.P. Capt) Dr. V.V.S. Prabhakar Rao, M.D., Redio Diag DNB (REDIO – DIA) DNB Incl Medi DRM - Head of the Department of Nuclear Medicine, issued a report on the same day on holding that bones scan is negative for Skeletal Metastases, thereby advised the patient as fit for operation. Ultimately Dr.S.B.R.Narasimham, Cardio Therosic Surgeon conducted surgery on 07-03-2005 at KGH, Visakhapatnam and was discharged on 17-03-2005. He has completely recovered and maintaining good health. Due to the wrong report on 25-02-2005, as suggestive of Bone Metastases, which is a positive report, put the complainant to mental tension day by day. During the period from January 2005 till the completion of the operation, the complainant has under gone mental tension apart from incurring huge expenditure. The 2nd opposite party acted very negligently and issued wrong report. When he met the 2nd opposite party for his opinion and requested the complainant to test once again, the 2nd opposite bluntly and inhumanly refused the request of the complainant by arrogantly stating that “my report is final and none can question it”. The act of the opposite parties is nothing but to play with the lives of human being. Had the complainant followed the report of 2nd opposite party and not undergone operation, the complainant would have been expired. Hence the opposite parties are liable to compensate the complainant by way of damages, which are estimated at Rs.5,00,000/-. The 2nd opposite party is working under the 1st opposite party and hence the 1st opposite party being employer is also vicariously liable. For the legal notice issued, opposite parties denied the liability. Hence the complaint.


2.The counter averments of the 1st opposite party hospital in brief are: The complainant, mischievously with dishonest intention, suppressed the diseases with which he is suffering and advised diagnostic investigations by different physicians. He approached this hospital to rule out any ‘metastases’ CT guided FNAC means “Computed Tomography” guided “Fine Needle Aspiration Cytology”. In ordinary parlance, Metastases means “change of place”. In the context of a cancer patient, it means “spread of Disease” to other parts. In seeing the said report of CT guided FNAC report, the Doctor advised him to have the possibility of Metastases ruled out, itself inherently means that it must have been revealed that he had Cancer in a particular organ and that the said Dr. Narasimham wanted to find out as to whether such cancer had already spread to the bones. The clinical tests or radiological test or pathological examinations are suggested by the Doctor to enable him to form an opinion and assessment regarding the cause of ill health or disease of the patient and decide the course of treatment or further evaluation. It is a communication more with referring Doctor than to patient.


3.Dr. Rana Danda – 2nd opposite party, who conducted bone scan is qualified Nuclear Medicine Consultant of this hospital, who did Post Graduate Deplome in Radiation Medicine (DRM) in the year 1997 from BARC, Mumbai affiliated to University of Mumbai and later on became Diplomate of the National Board (DNB) in Nuclear Medicine in the year 2001 from the National Board of Examination, New Delhi, besides diploma course in Hospital Administration and having 10 years of experience in the filed of Nuclear Medicine.


4.The complainant when approached this hospital for the bone scan, was having with him, earlier scans and reports which disclosed “Mass” in his Right Lung (lower lobe) and that he was suffering from “Carcinoma” of Lung (Lung Cancer), which is a highly dangerous disease. The 2nd opposite party found increased tracer uptake at some of the areas of Skeleton, and normal tracer concentration was found in the rest of the Skeleton. Such increased Tracer-uptake is only an indication of some abnormality, requiring Radiological correlation through X-Ray or CT Scan or MRI, as the case may be. The increased Tracer uptake cannot always be taken as conclusive of any malignancy or metastasis condition. It raises suspicion about metastatic spread and it needs to be confirmed or rule out, as the case may be, through Clinical Evaluation and Radiological Tests. This is a simple and common thing known to all concerned Doctors. No doctor would be misled with such bone scan and would not take the same as a conclusive one. That is why in his “Comments” in the concluding part of the Bone Scan report dated 25-02-2005 Dr. Rana Danda gave advise to the effect that the abnormal Tracer-uptake seen in the above areas of the Skeleton needs to be co-related Radiologically. There is no conclusive opinion given by Dr.Rana Danda.


5.The complainant is not disputing the fact that the said scan revealed such increased tracer-uptake in the said areas of Skeleton, which means, he is neither disputing nor questioning the correctness of the said bone scan as such, or its image as furnished to him. For that matter, it is the same bone scan image, which is stated to have been shown to Dr.(Gp.Capt) V.V.S. Prabhakar Rao, MD (Radio-Diag), DNB (Radio-Diag), DNB (Nucl. Med), DRM, Head – Department of Nuclear Medicine, NIMS, Hyderabad for the purpose of his so-called second opinion, and which is stated to have formed the basis, along with several other considerations, for his such second opinion. Therefore, it is abundantly clear that the complainant is not disputing the fact that the said bone scan which he underwent in this opposite party hospital on 25-02-2005 revealed abnormality.


6.The complainant’s own version, coupled with a referral letter of KGH Hospital to NIMS Hospital would show that he has already undergone Radiological test as advised by the 2nd opposite party for correlating the suspicion arose in the said bone scan and the same are stated to have resulted in negative findings of Bone Metastases and all the concerned Doctors in KGH were unanimous in their such opinion of exclusion of the said suspicion of Bone Metastases with the help of the results of the said Radiology tests. That the said Doctors in KGH who reached the said opinion, with the help of Radiology tests, must have preferred to be extra cautious in the matter and wanted to have 2nd opinion from a top-most authoritative institution like NIMS, Hyderabad in support of their such opinion, so that they will not be blamed in future in the matter of their such opinion. In that peculiar scenario alone, the complainant must have been referred to NIMS for such 2nd opinion but not a definite conclusion. There are absolutely no merits or substance in the contention of complainant.For the above said reasons the complainant has to be dismissed with costs.



7.The 2nd opposite party filed a separate counter, which is nothing but copy of the 1st opposite party counter. However he added further that this nuclear scan report cannot form basis for surgery of the patient. More factors like local spread of the disease (cancer) this is visible on CT Scan / MRI from a more basic indicator for surgery or other T/t. Hence it is not correct to say that based on the report of Nuclear Bone – scan the patient was operated on. He further pointed out on the same day i.e., on 25-02-2005, the 2nd opposite party had done bone-scan of another two patients and had reported the comments, in distinct and non-ambiguous, as per merit of the cases and Radiological correlation was not advised to them. This 2nd opposite party is working for Seven Hills Hospital in Vizag had reported on total 2,936 Nuclear Scans of various organ systems of which 1,360 were bone-scans and there wasn’t any allegations against him and his opinions. There is absolutely no merit or substances whatsoever in the complainant’s case against this opposite party and the same is utterly frivolous and vexatious in nature and is designed and fabricated entirely for making windfall gain. Hence the complainant has to be dismissed.




8.At the time of enquiry the complainant filed his own affidavit and marked his documents as Ex.A.1 to Ex.A.7. The opposite parties filed affidavits of the present Nuclear Medicine Consultant and also that of 2nd opposite party. They filed Ex.B.1, scan reports of five patients of that date.



9.Both the counsels were heard, who reiterated their contentions and even filed written arguments to supplement the same.



10.The learned counsel for complainant contended that Ex.A.1 scanning report issued by the 2nd opposite party itself is wrong, as can be seen from subsequent opinions given by Doctors at Visakhapatnam and also experts at NIMS Hospital, Hyderabad. This amounted to negligence on the part of 2nd opposite party. He pleaded that in view of this wrong report Ex.A.1, the Cardio Therosic Surgeon, Dr. S.B.R. Narasimham, refused to perform surgery upon him and had he relied upon this report without obtaining 2nd opinion, there would not have been any operation and he would have been no more. He vehemently pleaded that because of this wrong report of 2nd opposite party, the complainant was put to any amount of mental agony and tension and hence he is entitled for the compensation as claimed, for the deficiency in service, against the 2nd opposite party and being employer of 2nd opposite party, the 1st opposite party, vicariously.



11.The contention of the counsel for the opposite parties is that Ex.A.1 report given by 2nd opposite party is not the final opinion at all as it required the findings therein to be co-related Radiologically. It is his further contention that the Radiological tests, evidently underwent by the complainant immediately thereafter, which formed the basis of the further opinion, show that there was no Metastases. Learned counsel pointed out that the complainant could not place any material to show that the findings given in Ex.A.1 report are wrong and infact he did not under go the same test again and infact the subsequent opinion expressed by the Doctors herein and also expert report of NIMS was based on this findings of reports in Ex.A.1 only, which did not get co-relation to arrive at the conclusion that it is Metastases. He pleaded that the report Ex.A.1 is for the benefit of the Doctor, who was treating the patient to determine the disease and future course of action to be opted, but not the patient. He also vehemently contended that 2nd opposite party is well experienced in this field and given more than one thousand reports during his stay at Seven Hills Hospital, Visakhapatnam, and there was never any complaint as to the correctness of his report. With regard to the plea as to mental agony, it is contended that the complainant in his complaint suppressed the disease he was suffering, with malafide intentions. He pointed out that the earlier reports of the complainant would show that he was already suffering with Carsenoma of Lung and there was mass in his right lung and only for the purpose of undergoing Right Lobe Lobectomy, the surgeon wanted to rule out that there was no Metastases. Such being the case, when he was already a patient of Carsinoma of Lungs, plea that he suffered mental agony in view of the so called opinion expressed by the 2nd opposite party, does not stand to reason. The main thrust of the counsel for the opposite parties is that Ex.A.1 is not the final opinion of 2nd opposite party as it require co-relation Radiologically and was not shown to be incorrect in subsequent test. The counsel even argued that had the complainant approached the 2nd opposite party after Radiological report obtained after Ex.A.1, 2nd opposite party himself would have given his final opinion that there was no Metastases, relieving the tension and agony, if any of the complainant. Thus the opposite parties denied that there is any deficiency in service on the part of 2nd opposite party and consequently himself and 1st opposite party cannot be mulcted with any liability.



12.In the light of the contention raised by the counsels the point that arise for determination in this case is:
Whether there is any deficiency in service on the part of the 2nd opposite party and consequently on 1st opposite party in giving Ex.A.1 bone scan report and if so they are liable to pay compensation to the complainant?


13.The factual matrix of this claim against Nuclear Medicine Specialist, 2nd opposite party of Seven Hills Hospital, Visakhapatnam of 1st opposite party is: The complainant, a resident of Visakhapatnam, was suffering with Carsinoma Right Lung and when the Cardio Therosic Surgeon, Dr. S.B.r Narasimham was approaced, he wanted Metastases to be ruled out in order to proceed with surgery of Right Lobe lubectomy. The bone scan facility is available at Seven Hills Hospital only and the 2nd opposite party is the Nuclear Medicine Specialist for bone scan there. Bone scan was done by the 2nd opposite party, on 25-02-2005 and Ex.A.1 is report given by him, which show that it is suggestive of bone Metastases, subjected to co-relation Radiologically. In the light of this report, evidently the complainant underwent further Radiological test. The complainant itself show that the Chest Physician, Dentist and the Cardio Therosic Surgeon came to the conclusion that it was not the case of Metastases. Evidently, in order to avoid any risk, they referred the complainant to NIMS Hospital, Hyderabad, as can be seen from Ex.A.3 referral letter. Dr. Prabhakar Rao of Nuclear Medicine Department gave his impression after the examination of the patient and his history of disease, came to the conclusion that the bone scan Negative for Skeletal Metastases by is Ex.A.4 report dated 03-03-2005. Immediately thereafter the complainant was admitted on 04-03-2005 at KGH, Viskahapatnam and Right Lower Lobe Lubectomy was done on 07-03-2005 and ultimately discharged on 17-03-2005, as can be seen from Ex.A.5 discharge summary.



14.The grievance of the complainant is that the 2nd opposite party is negligent in giving report in Ex.A.1 wrongly which caused mental agony and tension and when he requested to test him again the 2nd opposite party bluntly and inhumanly refused and adamantly stated that his report is final and non can question it. So with that grievance the complainant got issued Ex.A.6 legal notice dated 05-09-2006 and opposite parties naturally denied any liability and got issued Ex.A.7 reply notice dated 12-09-2006.




15.There cannot be any doubt that if the report Ex.A.1 given by Dr.Rana Danda is shown to be wrong, he would be liable for medical negligence. That what was held by National Commission in Bharat Pathology Laboratory Vs. Mangilal Vyas in III (2003) CPJ 94. Similarly, in Dr. Vinod Bansal Vs Anjana Gupta 2009 CTJ 453 CP SCDRC (Jaipur), considering the correctness of Sonography given by Doctor, it was held that “a mistaken diagnosis is not necessarily a negligent diagnosis. A practitioners can only be held liable in this respect if the diagnosis is so probably wrong so as to prove negligence. That is to say that if a mistake is of such a nature as to imply an absence of reasonable skill and care on his part, record being had to an ordinary level of skill in the profession.” In that case Doctor gave a Sonography report that the child in the womb died but 2nd test conducted shown that the child was alive. So in the light of these two decision, it is to be seen how far the complainant could establish that Ex.A.1 Bone Scan Report given by Dr. Rana Danda is wrong and he has not acted with reasonable skill and care on his part.



16.It is to be noted that the opposite parties came up with a specific case that the report given by Dr. Rana Danda, is not final opinion and it is a correct report and naturally denied that it is wrong report which, subjected the complainant to lot of mental tension and mental agony. Before determining, whether there is negligence on the part of the opposite parties are not, it would be convenient to note that report given by Dr. Rana Danda in Ex.A.1. It is dated 25-02-2005. His findings are “Increased tracer-uptake is seen in following area(s) of the Skeleton: (i) lateral end of right clavicle (ii) left aspect of mandible (body) (iii) L3 vertebra (right aspect) & ? lower sacrum, ?mid-dorsal spine. Rest of the skeleton shows normal tracer – concentration. Both kidneys are normally visualized- Comments: Abnormal tracer-uptake in the above areas is suggestive of bone – metastases (please correlate radiologically”). As can be seen from above he opined that the findings are suggestive of Bone Metastases, but at the same time cautioned that this finding has to be necessarily co-related Radiologically. It means and implies that unless such a co-relation was there his impression cannot be taken as final opinion. Even as per complaint averments based on such Radiological tests conducted, the dentist and Orthopedic Surgeon so also Cardio Therosic Surgeon gave an opinion that it was not a case of Metastases. It was not only here at Visakhapatnam such a finding was obtained, even the expert at NIMS Hospital, Hyderabad also gave same opinion as can be seen from Ex.A.4 dated 03-03-2005. As rightly point out by the Counsel for opposite parties, even the expert at NIMS Hospital also gave his opinion based on the findings noted in Ex.A.1 Scan Report given by 2nd opposite party. The complainant who termed it as a wrong report could not place any material to substantiate it. He did not undergo any subsequent similar test, which gave different finding than in Ex.A.1 report. In our view, in the first place the findings of scan test noted by Dr. Rana Danda and the impressions given by him thereon are not final opinion, as for his observation, he wanted co-relation Radiologically. That means his opinion is subject to confirmation by conducting some other test. Admittedly when such Radiological test were undergone it was found that the observations were not co-related and final opinion was that it is not a case of Metastases.



17.Even assuming that it is a final report given by Dr. Rana Danda, there is no other material to contradict this report and infact this Ex.A.1 report formed the basis for final opinion expressed by expert at NIMS Hospital, Hyderabad.



18.Moreover assuming that Dr. Rana Danda, gave wrong report that it was the case of Metastases, what was the loss sustained or the mental agony suffered by the complainant is to be seen. As already noted, he was a patient of Carcinoma and Doctors are considering Right Lobe Lobectomy to be done. That itself is a serious situation. The very knowledge of suffering with a fatal disease like Carcinoma itself would result in severe mental agony and untold misery cannot be disputed. But the test conducted by Dr. Rana Danda, was to see whether this particular disease was extended to Skeleton Structure or not. As already noted his report was dated 25-02-2005. The complaint and the evidence adduced by him was silent as to when he underwent the Radiological Test and when he obtained opinion from the dentist and Orthopedic Surgeon so also Cardio Therosic Surgeon. But, admittedly by 02-03-2005, the complainant was informed by the other Doctors that it was not a case of Metastases. The opinion given by NIMS Hospital was dated 03-03-2005 that is on the next day itself. Thus he had this additional mental agony only for five days. In order to hold that there is any deficiency in service on the part of the opposite parties he must necessarily establish that the 2nd opposite party acted negligently in giving Ex.A.1 report and did not show reasonable skill and care on his part. When abnormal tracer uptake is noted in particular areas, in a patient already diagnosed as suffering with Carcinoma, the conclusion drawn by Dr. Rana Danda that this excessive tracer uptake was suggestive Bone Metastases cannot be considered as wrong diagnosis. Inspite of it, he suggested that his finding should be co-related Radiologically. Such being the case, it cannot be said that Dr. Rana Danda did not show reasonable skill and care on his part, which is quite necessary to draw the inference of negligence. Thus in any view of the matter, we are of the view that the complainant failed to establish that the report given by Dr.Rana Danda is incorrect one which resulted in mental agony to him. Consequently both the opposite parties cannot be fastened with any liability. Accordingly this point is answered against the complainant.


19.In the result, complaint is dismissed, but in the circumstances each party is directed to bear their own costs.