K.V. Rama Rao, S/o late Narayana, Resident of Vellanki Ram Mohan Rao Street, 4th lane, Ashok Nagar, Behind Sidhartha Arts and Science College, Vijayawada.
Dr. C. Rajendra Prasad, Pathologist, Bezwada Diagnostic Centre, 29-4-2, Kodanda Rami Reddy Street, Governorpet, Vijayawada – 2.
…. Opposite party.
1. The averments as narrated by the complainant in the complaint in brief are as follows:
That the complainant approached the opposite party namely Bezawada Diagnostic Centre run by the opposite party to know the INR Value (Prothrombin Test), as the complainant is a Cardiac patient and under went coronary Bypass Surgery in the year 2002 and that he has to maintain INR Value around 2.5. On 07-08-2007, the opposite party collected blood from the complainant for P.T test and gave report showing that his INR Value is 2.5 which is normal and with in control. Believing the Diagnostic report of the opposite party the complainant traveled from Vijayawada to Hyderabad on the same day. During the course of journey the complainant suffered heavy pain and strain and also vomited blood excessively. Immediately after reaching Hyderabad the complainant approached the doctors in care hospital who in turn conducted medical examination and also blood test for INR Value which showed 6.16, due to the said reason only the complainant suffered severe pain which may cause harm to his life.
The doctors in care hospital informed the complainant that because of high INR Value the blood will become thinner (As the medicine acitrom is anti coagulant) and if the blood oozes out in the brain it will cause adverse affect on the life which may lead to the loss of life also. The doctors who examined the complainant also stated that the report issued by the opposite party (P.T. Test report) is not a correct report. Because of the negligent report/wrong report given by the opposite party. The complainant suffered too much pain and unbearable mental agony and was forced to incurred Rs.30,000/- expenditure for his treatment at Hyderabad. There after the complainant got issued a legal notice to the opposite party on 21-08-2007 demanding damages, though the opposite party received the legal notice but kept mum. Hence the complainant.
2. The opposite party filed lengthy version and the averments of the version in brief are as follows:
There is no dispute that the opposite party is a practicing pathologist since several decades in Vijayawada having good reputation. It is true that the complainant is a Cardiac patient and that he is rendering himself to prothrombin test (generally known as P.T.Test) regularly and the opposite party knows the same as the complainant happens to be one of the many patients obtaining services from the opposite party regularly since a long time. It is true that the complainant approached the opposite party diagnostic centre on 07-08-2007 and requested the opposite party to checkup his INR Value as usual. The opposite party collected blood and after through examination gave report. In fact the INR Value was intimated to the complainant on 08-08-2007 at 11.00A.M through phone, but the complainant collected the report after one week . This opposite party has no knowledge about the travelling of the complainant from Vijayawada to Hyderabad and suffering too-much pain, strain and vomiting of blood etc. The other allegations of the complainant are false and were invented for the purpose of filing this complaint and to defame this opposite party only.
The report of the care hospital with regard to INR Value is noting to do with the report of this opposite party. That apart the INR value of the blood of any person will not be consistent and keeps on changing from time to time on the basis of many factors like consumption of food, in take of medicines and time gap etc. Therefore it is quite ridiculous to assume or draw any assumption on the basis of the report given by the doctors in care hospital at Hyderabad. This opposite party categorically denies the allegations leveled against him and stands by his report dated 07-08-2007. The complainant is not entitled for any damages much less the damages claimed and that this opposite party got replied suitably to the legal notice dated 21-08-2007 on 09-09-2007 through his advocate. There are no tenable and valid grounds to allow the complaint and prayed to dismiss the same with exemplary costs.
3. On behalf the complainant, the complainant himself examined as P.W.1 and also examined Dr.K.Santhi Naidu as P.W.2 and this forum marked Exs:A1 to A5 on behalf of the complainant. On behalf of the opposite party the opposite party himself examined as R.W 1 and also examined Dr. B. Somaraju as R.W.2 and no documents are marked on behalf the opposite party.
4. Heard both the counsel apart from oral submissions the learned counsel for opposite party filed lengthy written
5. Now the points that arise for consideration in this complaint are:
I). Whether there was negligence on the part of the opposite party in conducting blood test (P.T. Test) for INR Value ?
II) Whether the complainant is entitled for damages as claimed?
III) To what relief the complainant is entitled?
6. Point No.1: The learned counsel for the complainant argued and submitted that the opposite party doctor negligently tested the blood of the complainant (P.T. Test) for INR value and gave wrong report, believing the report of the opposite party the complainant traveled from Vijayawada to Hyderabad on the same day but on the way he suffered a lot (physically) and omitted blood in journey and immediately after reaching Hyderabad he approached Care Hospital, wherein the doctor tested the blood of the complainant (PT test) and found that INR value is more than 06 and because of that only the petitioner suffered much in journey and the increase of INR value even cause death at times thereby, the complainant perturbed and immediately took treatment by incurring huge expenditure. The learned counsel further submitted that the complainant is a heart patient and he underwent bypass surgery and he has to maintain INR value in between 1.5 and 2.5 and so taking much care by himself and approaching the doctors time and again for test of PT and the complainant never suffered such agony and it is the first time so, the complainant contacted the opposite party but he gave evasive and arrogant reply so, he got issued legal notice to the opposite party though, received the opposite party kept mum so, the acts of the opposite party falls within the purview of deficiency in service.
The learned counsel further submitted that because of the wrong report only the complainant suffered and giving of wrong report is nothing but negligent act of the opposite party and so he has to be penalized and that the higher courts also considered these aspects and in support of his contention the learned counsel relied upon Sri Manjunath Pathology Laboratory and another Vs Meenakshi, I (2009) CPJ 56 (NC) wherein it was held that “Consumer Protection Act, 1986 – Sections 2(1)(g) and 14 (1)(d) – Medical Negligence – Wrong blood report – HIV Positive report given to HIV Negative patient – Trauma undergone by patient who is pregnant lady, can very well be imagined – Pathologists need to be very careful while giving finding – No advice for second check given – Neither highest nor lowest degree of care expected from medical practioner/pathologist – Compensation awarded by State Commission upheld in revision” and also relied upon N. Lakshmi Narasimhaiah and others Vs Medical Administrator, Ravi Kirloskar Memorial Hospital and Research Centre & Others, I (2009) CPJ 62 (NC) wherein it was held that “Consumer Protection Act, 1986 – Sections 2(1)(g) and 14 (1)(d) – Medical Negligence – Wrong diagnosis – Biopsy – Lump growth reported as non-cancerous – Condition of patient deteriorated – Complainant approached another hospital – Cancer of Grade III diagnosed – State Commission held, O.P. guilty of only error of judgment, not amounting to negligence – Dismissed complaint – Hence appeal – O.P. employed as specialist pathologist in Hospital – pathologist having basic knowledge of pathology could not have failed to provide correct finding – O.P.’s attempt to disown report and shift burden on consultant miserably failed – Wrong diagnosis made by O.P. proved – Wrong diagnosis not to be treated as error of judgment – Guilt on part of O.P. writ large – Medical negligence proved – Compensation awarded – Hospital vicariously held liable to pay compensation – Joint and several liability imposed” and contended that the above rulings are clearly applicable to the present case on hand on all aspects and prayed to allow the complaint.
7. In contra, the learned counsel for the opposite party apart from oral arguments submitted memorandum of written arguments running 14 pages the sum and substance of the arguments of the learned counsel are that, that the INR value varies from time to time and because of in take of food and drugs and that the opposite party is a renewed doctor so, no need to attribute any deficiency to the opposite party and that the report given by the opposite party is apt and so, no need to attribute anything against the opposite party further, there is no need to give any reply to the legal notice since the opposite party adopted proper and correct procedure in taking blood and testing the blood and that the opposite party doctor has not advised the complainant to travel and that the evidence on hand is clear that the INR value varies and that the complainant filed this petition with malafide intention for wrongful gain and that this complaint is a prevalous and vexatious one and ultimately prayed to dismiss the complaint since there was no negligence or deficiency on the part of the opposite party doctor. The learned counsel for the opposite party tried to assassinate the character of the complainant in his written arguments, which is not correct and un-called for.
8. In view of the rival contentions it is better to analyze the material on hand, as for as the plea of the complainant is concerned that he under went bypass surgery in the year 2002 and there after he is taking much care to his health and as per the advise of the experts he is testing his blood for INR value regularly and in that process he approached the opposite party on 07.08.2007 and that he gave report stating that INR value is 2.5 that means normal so he took journey and on the way he suffered heavy pain and strain and also omitted much blood, immediately after reaching Hyderabad he approached the Care hospital and the doctors there conducted tests and found that INR value is 6.16 and because of that only he suffered and there after the complainant approached the opposite party but of no avail so, he got issued legal notice on 21.08.2007 though, the opposite party received but failed to comply and reply and the same was denied by the opposite party in the counter/version but admitted that the complainant approached the opposite party for PT test many times thereby he knows him and that he collected blood and tested and gave report which is correct and infact the complainant collected report belatedly and that he is nothing to do with the increase of INR value and that he is a renewed and qualified doctor since long and that there is no need to give reply to the legal notice etc.,
further the submissions of the learned counsel on either side also on the same lines as already noted supra so no need to reiterate again “Further the Principle of Prothrombin Time, the test measures the clotting time of plasma in the presence of an optimal concentration of tissue extract (thromboplastin) and indicates the overall efficiency of the extrinsic clotting system. Although originally thought to measure prothrombin, the test is now known to depend also on reactions with factors V, VII and X, and on the fibrinogen concentration of the plasma” – “Normal values depend on the thromboplastin used, the exact technique and whether visual or instrumental end-point reading is used. With most rabbit thromboplastins, the normal range of the prothrombin time is between 11 and 16 s; for recombinant human thromboplastin, it is some-what shorter (10-12 s).
Each laboratory should establish its own normal range”. Further, “Thrombin is added to plasma and the clotting time measured. The TT is affected by the concentration and reaction of fibrinogen, and by the presence of inhibitory substances, including fibrinogen/fibrin degradation products (FDP) and heparin. The clotting time and the appearance of the clot are both informative.” Further, the values of INR generally increased when the patient is suffering from congenital or secondary to liver disease or vitamin K deficiency (Emphasis supplied) from “Investigation of Haemostasis” but here in this case there is no evidence that the complainant was suffering from liver ailment or lack of Vitamin K further, on perusal of the evidence the opposite party doctor failed to explain the reasons for increase of INR value within 24 hours, except saying that in take of food, medicine etc., but failed to show that the complainant has taken contra food and drug. Apart from that the opposite party examined Dr. B. Soma Raju an expert and the expert stated that (Dr B. Somaraju) it is desirable to maintain the INR value between 2 and 3 and that the INR value may change drastically if the patient fails to follow the medical advise properly and that the sudden change in INR value may occur due to excessive in take acitron medicine or laboratory error.
Further evidence discloses that there is no scope to preserve blood and test the same sample which was used for PT test once and further the specialist stated it is true that the bleeding from the gums can occur due to variety of cause which includes infection, trauma or cogagaulation abnormality, but in this patient presenting bleeding gums and increased INR value is suggestive of this cogagaulation abnormality as the cause. In the cross examination the expert admitted that for which the complainant never approached him by consuming excessive dose of medicine and further admitted “it is true that on 08.08.2007 Mr K.V. Rama Rao (Complainant) bleeding with gums and having high value of INR” that means there is variation between PT test on 07.08.2007 (Ex.A1) and 08.08.2007 (Ex.A2).
So, now the core question is whether PT test conducted by the opposite party doctor is correct or not? For that as already noted supra there is possibility of change in INR value if so can it vary within short span of time? The general presumption and the evidence of experts is clear that there is no scope of drastic change in INR value within short span of time, as per Exs.A1 and A2, the duration is not exactly noted since the taking of blood and testing time is not noted but perhaps within 24 hours so, there is no much time between two tests further, more there is no clear proof that the complainant consumed contra or excessive food or drugs, why because if the INR value is within normal there is no need to use or in take acitron drug so, this Forum is not inclined to accept the plea of the opposite party in this aspect that the complainant might have taken food or drugs etc., apart from that it is clear as per medical books that a person who ever under goes bypass surgery has to maintain INR value in between 1.5 to 2.5 or from 1 to 3 as per Ex.A1 the normal value is 2.45 what ever it may be, but herein this case as per Ex.A2 INR value of the complainant on 08.08.2007 was 6.16 and that he suffered much inconvenience and blood omitting etc., and the same was proved by the complainant through evidence by expert Rw.2 further, if the INR value decreases or increases the patient has to suffer with several complications so, he has to approach doctor/surgeon but herein this case in view of the report (Ex.A1) the complainant did not approach the doctor or surgeon and so, he traveled believing the report of the opposite party.
Further, if the INR value decreases there is every possibility of clotting of blood and if it increases there is possibility of oozing of blood and even at times oozing from intracranial areas (brain) etc., and ultimately it may lead to death so, the PT test is essential one to the persons who undergone bypass surgery so much so in this case the complainant who underwent bypass surgery, so he has to maintain INR value within limits and he has to get his blood tested for the same so, he approached the opposite party and believing the opposite party’s report he traveled and suffered and further giving of wrong report amounts to deficiency in service and the reported decisions also clear wherein the Hon’ble National Commission considered several aspects and earlier rulings and concluded that “Degree of skill and care required.
The practitioner must bring to his task a reasonable degree of care. Neither the very highest, nor a very low degree of care and competence judged in the light of the particular circumstances of each case, is what the law requires; a person is not liable in negligence because some one else of greater skill and knowledge would have prescribed different treatment or operated in a different way; nor is he guilty of negligence of he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art, although a body of adverse opinion also existed among medical men.
This principle has been well accepted and relied upon repeatedly by the Hon’ble Supreme Court, this Commission, House of Lords and others. We wish to specially rely upon the observations “Neither the very highest nor a very low degree of care and competence judged in the particular circumstances of each of the cases, is what the law requires.” As rightly held by both the lower Fora, we were not expecting the highest but certainly not the lowest professional competence was expected from the Petitioner. We are in no doubt that when a patient who goes to a physician or diagnostic or radiologist, does not expect a wrong diagnoses leading to further mental agony and tension”. “Assuming that the opinion furnished is slightly at variation with fact it can only amount to an error in judgment or in drawing the conclusion.”
Further, he goes on to conclude: “A wrong diagnosis or error in judgment would not make respondent Nos. 3 and 4 liable in action in view of the authentative pronouncement of decisions of the National Commission and Supreme Court.”“It is apparent from this statement that he had made a wrong diagnosis but have been pleading for treatment the same to be an error of judgment. We are afraid the contention is not sustainable since there is no pronouncement that a wrong diagnosis will be treated as an error of judgment.
Thus, all through the proceedings, the guilt of respondent/opposite party 4 Dr. T. Vasudeva Rao is writ large and his lapse cannot but be treated as a clear-cut instance of negligence.” In view of the above, when considered the present case on hand it is clear that the opposite party doctor failed to take adequate care in conducting P.T. test and so the above verdicts are applicable to the present case on hand so, this Forum is agreeing with the submissions of the learned counsel for the complainant and no need to give any precedence to the lengthy submissions of the learned counsel for the opposite party.
9. That apart, the complainant got issued legal notice to the opposite party (Ex.A3) and the opposite party received the same (Ex.A5) but he failed to reply, why no explanation, which act of the opposite party amounts to deficiency in service though, the learned counsel for the opposite party contended suitable reply was given, but no proof further the reports of Exs.A1 and A2 varies considerably and that the complainant also proved Ex.A2 by examining Pw-2 Dr K. Santhi Naidu ofcourse, she admitted the INR value can change from time to time and further stated that INR value change within a short span by using drugs but in this case the complainant has not used any drug, why because, there is no necessity or to say when the INR value is normal no need of use of any drugs. In view of the foregoing reasons this Forum is of the view that the opposite party is negligent in giving report and that non-reply to the legal notice amounts to deficiency in service and accordingly this point is answered.
10. Point No.2: In view of our findings in point No.1 and further the complainant proved that he suffered so much and even afraid of his life in journey because of huge blood omittings and that the mental agony which the complainant suffered cannot be assessed at this juncture but it has to be viewed from the point of the complainant only at that time and infact contra was not established by the opposite party so, the complainant is entitled for damages and accordingly this point is answered.
11. Point No.3: In the result the complaint is allowed in part and the opposite party is hereby directed to pay an amount of Rs.4,00,000/- (Rupees four lakhs) only towards damages and do pay Rs.2,000/- (Rupees two thousand) only towards costs. Rest of the claim if any claimed by the complainant is rejected. Time for compliance one month. If the opposite party fails to pay awarded damages within the stipulated time (one month) the damages carries interest at 6% p.a., till the date of payment.