Sri Lotheti Hari, S/o Appa Rao, Hindu, aged 19 years, R/o Munsiff Street, S.Kota, Vizianagaram Dist.

… Complainants

1. Dr. P. Ravi Mohan, MD, D.M., (ONCO), Doctors Plaza, 18-1-35, Maharanipeta, Visakhapatnam – 2.

2. Dr.N.R.R.K. Rao, MD (DCP), Pathologist, Chaitanya Medical Centre, 14-37-44, Collectors Office Junction, Krishnanagar, Visakhapatnam – 2.

3. Abhaya Critical Care, rep by its Managing Director, 18-1-34, Opposite K.G. Hospital, OP Gate, Visakhapatnam – 2

... Opposite Parties

: O R D E R :

1. The complainant, who is student belonging to S-Kota, during May 2006 got fever and obtained treatment under one Dr. Dharmalinga Chari for two or three days, it was recurring and ultimately he approached one Dr.Ravi Kumar, on 31-07-2006 at Visakhapatnam. Dr. Ravi Kumar, got him admitted in Abayya Critical Care Centre, 3rd opposite party on 02-08-2006, he referred to the complainant to Dr.Ravi Mohan (1st opposite party), Oncologist at Visakhapatnam, obviously suspecting it to be leukemia case. Dr. Ravi Mohan, prescribed some diagnostic test including Bone Marrow Aspiration Test.

The tests were conducted in Chaitanya Medical Centre by Dr.N.R.K.Rao (2nd opposite party). In that centre Uric Acid and LDH was conducted on 02-08-2006 as per Ex.A.1, on the same day Peripheral Smear Test was also conducted. On 03-08-2006, Bone Marrow Aspiration test was conducted by 2nd opposite party, who gave his opinion that Smear are in favour of Acute Myeloid Leukemia M-2(hereinafter referred as AML M-2). These test reports were shown on 04-08-2006 to Dr. Ravi Mohan, at 3rd opposite party nursing home.

2. It is complained that Dr.Ravi Mohan, diagnosed the case as AML M-2 on the basis of the report Ex.A.1 by 2nd opposite party and demanded Rs.2,00,000/- for treatment and he was paid Rs.50,000/- as advance. It is the further case of the complainant that they doubted the diagnosis of Dr.Ravi Mohan, and consulted K.Vasu, who is another technician of a diagnostic lab and ultimately decided to get 2nd opinion about the decease of the complainant and accordingly, the complainant was taken to Nizam Institute of Medical Science (hereinafter referred as NIMS), Hyderabad. He was at NIMS as in-patient from 07-08-2006 to 10-08-2006. In NIMS, Peripherals Smear Test, Bone Marrow Aspiration Test and SBB and PAS test were conducted and ultimately gave an opinion that there was no evidence of Leukemia in the material studied and fortunately for the complainant, ultimately gave opinion when it is not a case of AML M-2.

The complainant in the light of the final opinion given by NIMS, alleges there is collusion between 1st and 2nd opposite parties and gave a wrong report and on the basis of wrong diagnostic report made by the 2nd opposite party, the 1st opposite party without getting 2nd opinion, confirmed it and collected Rs.50,000/-, as a part of Rs.2,00,000/-, demanded for the treatment Leukemia. The complainant alleges that the wrong diagnostic report by 2nd opposite party and basing on it alone, without other confirmation tests the final diagnosis given by an Oncologist, 1st opposite party, which proved to be wrong subsequently is nothing but deficiency in service.

3. It is pleaded that wrong diagnosis made by Oncologist, 1st opposite party based on the report of the 2nd opposite party, the complainant and his family members were subjected to mental agony and suffering. Hence this complaint seeking for refund of Rs.50,000/- paid to 1st opposite party and also an amount of Rs.3,80,00/- towards special damages for mental agony suffered by him besides Rs.10,000/- towards costs.

4. 1st and 2nd opposite party filed a common counter. It is their plea that the complainant approached the Oncologist, 1st opposite party on reference by Dr. Ravi Kumar, at Abahayya Hospital, 3rd opposite party and in view of the symptom he observed, he prescribed Bone Marrow Aspiration and other necessary tests for proper diagnosis and those tests were conducted by 2nd opposite party. It is their assertion that the opinion given by the 2nd opposite party is the tentative one and not final one, which is to be corroborated and confirmed by conducting further tests.

It is asserted that the complainant’s father was advised to get further tests done, for further confirmation and any treatment could be started. They vehemently denied any collusion in between them. It is their assertion that the further tests prescribed by them were conducted at NIMS and only based on those reports, the contradictory opinion could be given by the NIMS Hospital and on its own, it cannot be held to be a wrong diagnostic report or a wrong diagnosis by them.

They vehemently denied any collusion between them. The 1st opposite party naturally denied any demand for Rs.2,00,000/- by him or payment of Rs.50,000/- towards advance by complainant’s father. He asserts that he has seen the complainant only on two occasions i.e., on 02-08-2006 and 04-08-2006. He asserts that their recommendation for further tests could be easily seen in the case sheet maintained by 3rd opposite party. Thus they denied any deficiency in service on their part and any consequential liability.

5. The 3rd opposite party filed counter to the effect that it has only followed the prescriptions and advises given by the consulting doctors and does not have any independent role in the treatment of the patient and hence cannot be made liable, even if any wrong was done to the complainant.

6. At the time of enquiry, both the parties filed affidavits in support of their respective contentions and marked documents Ex.A.1 to Ex.A.17 and the 1st opposite party filed Ex.B.1 copy of the receipt issued by him towards consultation fee paid by the complainant and the 3rd opposite party filed true copy of the case sheet, which is marked as Ex.B.2. Both the opposite parties 1 and 2 were subjected to cross-examination by the complainant’s counsel.

7. It is the contention of the counsel for the complainant that her client does not have any serious illness except having a fever which was persisting, he came and consulted Dr.Ravi Kumar, who referred the case to Oncologist. She asserted that there was no bleeding from Gums, nose and ears as tried to be projected by the opposite parties.

She further contended that the report given by the NIMS hospital is diametrically opposite to 2nd opposite party, which necessarily lead to the conclusion that it was wrong diagnostic report by 2nd opposite party. Her main grievance is that the Oncologist, 1st opposite party based on the Ex.A.1 report by the 2nd opposite party gave a final opinion that it was a case of AML M-2 and denied the claim made by him that he suggested any further test for confirmation. She asserted that 1st opposite party demanded Rs.2,00,000/- and collected even Rs.50,000/- from him towards part payment of treatment. However, she conceded that no treatment was started by 1st opposite party.

The complainant went to the extent of attribution collusion between the 1st and 2nd opposite parties is giving a wrong report and proceeding with the treatment, on the basis of such wrong report is nothing but an attempt to enrich themselves. She vehemently urged that this case of issuing wrong diagnostic report and wrong diagnosis made on the part of the 1st opposite party and 2nd opposite party is nothing but deficiency in service. For the mental agony to her client and family members were put to for period of 6 days for wrong diagnosis and ultimately result given by NIMS Hospital, she claimed that the opposite parties are liable to pay compensation as claimed, besides liability of the 1st opposite party to refund Rs.50,000/- wrongly collected from them.

8. She relied upon a decision of the Apex Court, State of Haryana and others Vs.Smt.Santra 2000(3) Supreme 520, wherein it was held that “Every Doctor who enters into the Medical Profession has a duty to act with a reasonable degree of care and skill, which is impliedly undertaking and he will use a fair, reasonable care and skill. She also relied upon a decision in Sri Manjunatha Pathology Laboratory and another Vs. Meenakshi, I (2009) CPJ 56 (NC), wherein it was held that the pathologist need to be very careful while giving findings of the results, which could have some element of doubt or to go in for 2nd check and absence of any such advise and the result was incorrect, it amounts to deficiency in service.

She also placed reliance on another decision of Dr. Sham Lal & others Vs. Mrs. Saroj Rani & others, I (2003) CPJ 47 (NC), wherein it was held when patient died soon after administration of Intravenous Injection was given instead of Intramascular Injection, it was held to be negligence in the absence of any contradictory expert professional opinion. She filed written argument reiterating the contentions at the time of hearing. There cannot be any dispute as to the legal principles relied upon by complainant counsel in various decision cited by her.

9. On the other hand it is the contention of the counsel for opposite parties 1 and 2 that opinion given by 2nd opposite party is only tentative opinion and not conclusive one and the 1st opposite party did not act upon the tentative opinion and recommended for further confirmation and the complainant, instead of undergoing such tests went away to the NIMS hospital, where the 1st opposite party recommended tests were conducted and different opinion could be given by them. He urged that in these circumstance the contrary opinion given by the 2nd opposite party could not be held to be wrong. With regard to the complaint against the 1st opposite party it is the contention that the advise given by the 1st opposite party to undergo tests could be seen in the case sheet Ex.B.2 filed by the 3rd opposite party.

This belies the contention of the complainant that the 1st opposite party diagnosed it as a case of AML M-2, even collected Rs.50,000/- as part of the Rs.2,00,000/- demanded by him for the treatment. He vehemently urged that there is absolutely no collusion between the opposite parties 1 and 2 and there is also no material to substantiate those allegations that Rs.50,000/- was paid to 1st opposite party towards fee. He contended that in these circumstances, there is no deficiency in service on the part of either 1st opposite party or 2nd opposite party and the complaint is liable to be dismissed.

10. 3rd opposite party counsel naturally reiterated the contentions raised by him that is has nothing to do with the diagnostic report of 2nd opposite party and the diagnosis said to have been made by the 1st opposite party. The learned counsel further pleaded that inview of the change in the management the original of Ex.B.2 case sheet was misplaced and could not be filed in this case and it could considered as secondary evidence in these circumstances. He urged that there is no deficiency in service, could be alleged against his client.

11. In view of the respective pleadings and contentions raised at the time of arguments, three points would arise for determination:

1. Whether the diagnostic reports by 2nd opposite party are wrong report?

2. Whether the diagnosis made by the 1st opposite party amounts to deficiency in service.

3. Whether the complainant is entitled to any reliefs against the opposite parties 1 to 3?

12. Point No.1:- The ailment of the complainant was persisting fever and after obtaining the some treatment from an RMP Dr. at S.Kota, he came down to Visakhapatnam, he got himself admitted in the 3d opposite party hospital on the advise of his consulting physician Dr. Ravi Kumar. It is an admitted fact that Dr. Ravi Kumar only referred the complainant to an Oncologist, 1st opposite party.

There is a dispute between the parties as to the condition of the complainant at the time of admission in the hospital. It is the case of the 1st and 2nd opposite parties that the complainant had bleeding from nose and gums besides rectum and had blisters all over the body besides fever but this was denied by the complainant, who asserts that he has only fever. But Ex.B.2 case sheet would show that the ailment of the complainant at the time of admission has “fever with blood motions and weakness.’’ Similarly the Ex.A.13 discharge summary of the NIMS hospital would show that the patient had fever and the bloody stools.

It is to be noted here itself that as per Ex.B.2 case sheet, the complainant was seen by one Dr.Narayana Rao, Dermatologist, which would indicate that he had some problem with the skin also and to some extent probablize the assertion of the opposite parties. But in our view whatever may be these external symptoms that were there or not, the very fact that the consulting physician Dr.Ravi Kumar referred the complainant to Oncologist on the very second day itself, would indicate that he also suspected to be a case of Leukemia.

13. Now coming to the diagnostic report Ex.A.1 given by 2nd opposite party, they are marked as Ex.A.1, which are four in number. One test conducted was Bone Marrow Aspiration, Peripheral Smears Examination. The Peripheral Smears Impression was recorded as NORMOCYTIC NORMOCHROMIC ERYTHROPOIESIS BICYTOPENIA. The impression with regard to Bone Marrow Aspiration is given as “Smears in favour of AML M-2.” It is the assertion of the 2nd opposite party that it is not a final report but subject to confirmation of other test. He went even to the extent of deposing that he informed the father of the complainant this fact and even advised further tests to be done, to given final opinion .

But he was made to admit in the cross-examination that this observations were not there in Ex.A.1 reports. But one aspect to be noted here is that he did not emphatically assert his diagnosis of the case as AML M-2 but subjected it to a Rider “in favour” . It is also necessary to note that as observed in number of cases, in opinions of this nature, when there is any doubt and requires confirmation, it would be either specifically mentioned so or a question mark would be put at the end of the opinion, which is conspicuously absent herein. But these circumstances alone will not lead us to the conclusion that it is wrong diagnostic report.

14. No doubt the report of the NIMS Hospital, a Higher Center of Medical Science at Hyderabad, gave a quite contradictory opinion that it is not a case of AML-M-2 at all. As pointed out by the counsel for the opposite parties, the readings observed for the tests done were almost similar in both those Ex.A.1 report and Ex.A.5. As can be seen from this Ex.A.5, Cyto-chemistry SBB and PAS were also conducted at NIMS and the result of those tests were that they are non-contributory.

So as vehemently contended by the counsel for opposite parties, the contradictory opinion given at NIMS hospital was the result of undertaking further tests evidently done there to confirm or otherwise, the findings earlier observed. Moreover the counsel for the complainant could not place any material quoting from any texts that the findings in the report Ex.A.1 of 2nd opposite party, would not lead to the inference of even tentative by the complainant as AML M-2. Hence for these reasons we are unable to accept the contention of the counsel for the complainant that the diagnostic report given by opposite party i.e., Ex.A.1 is wrong or incorrect report.

15. Though plea of the collusion in between the opposite parties 1 and 2 is vehemently urged by the counsel for the complainant, no doubt Ex.B.2 case sheet would show that the 1st opposite party suggested the diagnostic tests to be done at Chaitanya Medical Centre, 2nd opposite party.

It may a fact the opposite party may be recommending various tests to be done in this particular centre. 2nd opposite party is said to be an experienced radiologist, though retired from service and evidently a reputed one. No other relationship could be attributed between the 1st and 2nd opposite parties. In such circumstances, the allegations of collusion in between them, as made by the complainant, is far fetched one and in our view is unacceptable. In these circumstances that there is absolutely no evidence to show that the opinion given by 2nd opposite party based on the reading of the tests conducted by him is wrong and such being the case, it cannot be held a deficiency in service on the part of the 2nd opposite party.

16. Point No.2. : - the main contention between the parties is whether 2nd opposite party gave a final diagnosis as an AML -2 case and collected Rs.50,000/- as part of treatment out of Rs.2,00,000/-. It is the assertion of the 1st opposite party that he never gave a final opinion diagnosing it as a case of AML M-2 and the so called demand and receipt of advance is nothing but slanderous allegations without any basis. He asserted that he advised further tests to be conducted in order to confirm the diagnosis, as a matter of fact the opinion given by the 2nd opposite party is not a conclusive opinion at all.

17. Both the parties filed affidavits in support of their respective contentions and cross-examination of 1st opposite party did not yield any admissions by him. The only peace of evidence available on record id Ex.B.2 copy of case sheet which contains the findings and suggestions and prescritions given by 1st opposite party.

Before considering those noting, it would be necessary to note here itself the circumstances in which only Photostat copy of the case sheet is filed and how far the entries therein in that case sheet can be reliable is to be considered. It is to be noted that Ex.B.2 case sheet consisting of 22 pages was filed into Forum only on 01-07-2008, but not along with the counter filed by the 3rd opposite party and that too only when the complainant demanded for it. Inspite of specific direction by this Forum and granting more than four months time, the 3rd opposite party did not file the original of Ex.B.1, on the ground that it was misplaced due to change in management of the hospital.

It is quite surprising that the 3rd opposite party, which could file Photostat copy of the same before the Forum on 01-07-2008, how could have misplaced the same, inspite of the fact that the case is pending against them, for more than two years by then. As a matter of fact, there is absolutely no evidence on its part as to why in the first instance itself the original was not filed.

These circumstances would naturally raise as suspicion as to the correctness of the various entries made therein. Apart from not arranging the pages in seriatim, it does not contain last days sheet, which should contain the endorsement of discharge of the patient. It also does not show the observations of the consulting physician on 5th and 6th day though it contains the notings of the condition of the patient and the medicines given, obviously made by the Nursing Staff. The advise of the 1st opposite party recommending for further tests on 04-08-2006 at page No.7, at the bottom of the case sheet gives an impression that it is subsequently incorporated “advised BMB IHC, PAS etc.” This suspicion is further strengthened in view of the note made by the 1st opposite party. It reads it as “an AML M-2, discussed and explained, to the patient’s father about the nature of the diagnosis and prognosis” and beneath it two medicines are prescribed by him.

Further these words, in between, the nature of drugs and prognosis are illegible by appearance, could be seen to be subsequent interpolation. Further the manner of writing advise in a narrow margin unlike in page 5 would also gives impression that it is a subsequent addition. Even at page No.5 also, in the bottom of the page, BMBX, IHC etc., also appeared to be subsequently written in view of the difference in the ink impression from the rest of the page.

18. Even assuming that the 1st opposite party prescribed further tests as contended by him then and there itself, question of discussing with the father of the complainant as to the nature of the drugs to be used and above all discussion about the prognosis, at that stage does not arise at all.

In view of the suspicious circumstances the original of Ex.B.2 was not produced leading to the inference of suppression, and the improbable noting by 1st opposite party on this page, would naturally lead us to the inference that they were subsequently incorporated after the filing of the case and that is why it is filed at a highly belated stage and that too on demand by the complainant and even then original was not filed. Obviously the original was suppressed as it would reveal the subsequent incorporation of the so called advises by the 1st opposite party.

19. In the light of the above discussion, we are of the view that the 1st opposite party in view of the ambiguity in the opinion given by 2nd opposite party, ventured to give an opinion that it is a case of AML M-2 without taking proper care in getting the findings confirmed by further tests. When he was advising a patient that he was suffering with a disease, that too a terminal one, it is expected that the 1st opposite party should have taken every care in arriving at a proper diagnosis and only after sufficient confirmation of his diagnosis, he should have conveyed the same to the patient, which is expected from a doctor of his stature and is found to be absent in this case. Hence it is to be necessarily held as deficiency in service on his part.

Fortunately for the patient and unfortunately for the 1st opposite party, his diagnosis was reversed at NIMS hospital and to cover up his latches, he came up with this theory of advising further tests and even tampered the case sheet Ex.B.2. In view of the findings that there is deficiency in services on the part of the 1st opposite party in diagnosing the disease wrongly without getting proper and confirmative tests conducted, naturally he would be liable to pay compensation to the complainant.

20. With regard to the further allegation that he demanded for a fee of Rs.2,00,000/- to provide treatment to the complainant and the complainant’s father even paid him Rs.50,000/- as advance, as far as the aspect of the demand of fees is concerned, being a professional he is entitled to demand the fees commensurate with the service he would be rendering. But with regard to the plea of payment of Rs.50,000/- to the 1st opposite party by complainant’s father, there is absolutely no evidence.

As rightly contended by the counsel for the 1st opposite party, when admittedly no treatment was commenced at all and inview of the short period of two days between the diagnosis and the discharge taken by the complainant at the nursing home, it is highly improbable and unbelievable that the complainant’s father have paid Rs.50,000/-. Ex. B.1 would show that only Rs.500/- was collected as consultation fee and he being a super specialist there nothing wrong in collecting that much of fees. So question of ordering refund of any fee by 1st opposite party does not arise.

21. The complainant was only 18 years student, by the time of he consulted the 1st opposite party for a simple ailment of fever, suddenly he was informed that he was suffering with a terminal disease, like cancer, the mental agony and suffering he had cannot even be imagined. Being an educated person he must be aware of the seriousness of the disease, he was said to be having and must have realized that his days of life in this world are only numbered, would result in any amount of depression and desperation for survival.

Fortunately for him, this period of mental agony was limited to only 6 days, when the report from NIMS hospital was in hands. All this mental agony, torture to the complainant is on account of negligent way of diagnosing disease and advising him to undergo treatment for leukemia by 1st opposite party. In the above circumstances, in our view, for the mental agony and torture the complainant was put to for these 6 days, it would be just and proper that the 1st opposite party shall pay a compensation of Rs.1,00,00/- to the complainant.

22. With regard to the 3rd opposite party, the nursing home, which maintained Ex.B.2 case sheet, without any justifiable and probable cause, insipte of direction from the Forum, it failed to produce the original case sheet. The reasons are quite obvious. It is only to accommodate the 1st opposite party in making interpolations in the case sheet to suit his contentions and if original is produced, such interpolations could be easily found out.

When a patient was admitted in that nursing home, it is expected that apart from providing good nursing facilities and strictly following the instructions of the consulting physician, from time to time, it owes duty to the patient to maintain the record of progress, from the date of admission till the date of discharge, correctly, reflecting the procedure adopted and the treatment given to the patient and his physical and mental condition during that period. Ex.B.2 case sheet surprisingly does not contain last page showing discharge, which should naturally contain endorsement that the discharge the patient “at his request” without doctors consent.

But no such endorsement could be found in this Ex.B.2. On the other hand it indulged in suppressing the original to conceal the interpolation made in that case sheet. A specific direction from the Forum to produce the original, which was still there with it, for about 10 moths prior to filing of the photostat copy. This conduct of 3rd opposite party clearly amounts to deficiency in service. Hence in our view, directing the 3rd opposite party to pay Rs.5,000/- as compensation to the complainant would be just and proper.

23. With regard to the claim of remaining amount, obviously it includes the expenditure incurred at NIMS hospital, which in our view is the unavoidable expenditure in view of the nature of the complaint, inconclusive diagnostic report that is given at Visakhapatnam and opposite parties could not be burdened with payment of that costs also. Accordingly we hold that there is deficiency in service on the part of the 1st and 3rd opposite parties and direct to pay Rs.1,00,000/- and Rs.5,000/- respectively to the complainant, which should be paid within two months from the date of this order, failing which the 1st and 3rd opposite parties would be liable to pay the same with interest @ 9% from the date of this order till the date of payment.

24. In the result the complaint is partly allowed, against the Opposite Parties 1 and 3 directing them to pay compensation of Rs.1,00,000/- and Rs.5,000/- respectively to the complainant within two months from the date of this order, failing which they would be liable to pay the same with interest @ 9% p.a., from the date of this order till the date of payment. They are further directed to pay Rs.5,000/- towards costs to the complainant. Advocate fee Rs.2,000/-. The complaint against the 2nd opposite party is dismissed without costs.