NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
 
CONSUMER CASE NO. 351 OF 2001
 
1. MS. KAMANI SHARMA & ORS.
W/o. Late Sh. Rajinder Kumar Sharma, R/o. 17-D, Sector -4, Pushp Vihar
New Delhi
2. Priyanka Sharma (Minor)
D/o. Late Sh. Rajinder Kumar Sharma R/o. 17-D, Sector- 4, Pushp Vihar,
New Delhi
...........Complainant(s)
Versus 
1. DR. ANIL NADIR & ORS.
B-13, Pamposh Enclave
New Delhi - 110 048
2. PAMPOSH MEDICAL CARE CENTRE
B-13, Pamposh Enclave,
New Delhi - 110 048.
...........Opp.Party(s)

BEFORE: 
 HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER
 HON'BLE DR. S.M. KANTIKAR, MEMBER

For the Complainant :
Mr.Arun Vashista, Advocate for
Mr. Paritosh Budhiraja, Advocate
For the Opp.Party :NEMO

Dated : 13 Jul 2015
ORDER

PER DR. S.M. KANTIKAR, MEMBER

  1. The complaint is filed by Smt. Kamini Sharma, wife of the deceased Sh. Rajinder Sharma,(Herein after, ‘patient’) as Complainant No.-1 along with her daughter Ms. Priyanka as Complainant No.-2 against the OPs, Dr. Anil Nadir, OP-1 and Pamposh Medical Centre, OP-2 for alleged medical negligence causing death of the patient.

The facts:

  1. Mr. Rajinder, (since deceased/patient), a Draftsman, Grade-II employee in Municipal Corporation of Delhi who took treatment from Orthonova Institute on 16.12.1999 for pain in right chest wall. Several tests and CT scan revealed a tumor at 2nd and 5thrib. On 23.12.1999, the patient approached the Pamposh Medical Care Centre, New Delhi (OP-2) for second opinion from Dr. Anil Nadir, the OP-1, showed the reports of Orthonova Institute. The OP-1 told that, no tumor exists, the reports from Orthonova were wrong. OP-1 conducted other tests and made a diagnosis of Tuberculosis of rib (TB) and started the treatment of TB for 6 months, but there was further deterioration in the health of patient. Therefore, on 11.08.2000 the patient was taken to the LNJP Hospital, which diagnosed him to have acancerous tumor. Thereafter, on 28.08.2000 at Ganga Ram Hospital, Delhi, the patient was diagnosed as a Squama Cell Carcinoma (SCC) of right lung with hepatic, brain, adrenal, rib, vertebral and lymph nodes  metastasis. The doctor expressed about the critical condition and no chance of survival. Thereafter, cancer treatment was started, but in spite of best efforts the patient died on 19.11.2000. The complainant alleged that, it was a wrong diagnosis of TB initially made by OP-1, led to the critical condition of the patient. Thus, it was medical negligence and breach in the duty of care on the part of the Dr. Nadir (OP-1) and due to lack of proper treatment, patient died within a short span of 11 months. The Complainant filed a complaint before this Commission and prayed for a total compensation of Rs.65,00,000/- under different heads. Complainant filed medical records, medical literatures and various judgments.
  2.  
  3. The OPs filed the reply and denied the allegations of medical negligence. OPs filed several medical literatures on the subject. The OP-1 submitted that the patient was a heavy smoker and a drug addict. He had lost his 7 kg weight associated with fever on and off . Patient visited Orthonova Clinic before visited him, wherein   CT scan was done on 16.12.1999.  It revealed old granuloma in upper lobe of lung and   ribs showed sign of inflammation.He was diagnosed as TB of 2-5th rib by Dr. D. Gupta on 17.12.1999. Therefore, he was put on anti-tubercular therapy(ATT). The patient was followed up till 22.12.1999 by Dr. Gupta. Thereafter, on 23.12.1999, the patient first time visited Pamposh Medicare Centre (OP-2). As it was previously diagnosed as TB right 5th rib, the   OP-2 examined him, advised FNAC and biopsy. The OP also submitted that, he had examined the patient thrice, and on all 3 occasions the OP advised the patient to undergo certain tests, no specific treatment was given. The patient never came back to OP-1, but   after eight months, he went to Lok Nayak Jai Prakash Hospital (LNJP) where it was diagnosed as cancer.   As, there was no negligence on the part of OPs, thus the  complaint deserves to be dismissed.
  4.  
  5. Cunsel for both the parties argued the matter, filed written submissions. The counsel for complainant submitted that the OP-1 failed to diagnose cancer and if it was diagnosed 5 -6 months earlier, then the chances of survival was more. The counsel reiterated the facts in the complaint. The arguments on behalf of OPs that there was no negligence from OP-1, as the patient did not follow the instructions for proper investigations like FNAC/Biopsy for more than 8 months, hence the diagnosis was not possible.The  counsel for OP brought our attention to the various medical records where the patient took treatment. (Orthonova,  OP-2 hospital, LNJP, Rajiv Gandhi Cancer Hospital, Gangaram Hodspital)
  6.  
  7. We have perused the medical records of Orthonova, and the OP-2 hospital. It is clear that the patient visited the Orthonova  on 24.10.1999, Dr. Ashish Khanna, examined him on OPD basis and noticed swelling in the 5th region of rib.  Thereafter, on 16.12.1999, Dr. Dhananjay Gupta, examined him and advised CT scan of chest and other laboratory investigations.  On 17.12.199, he performed aspiration under local anesthesia, aspirated pus, which was sent for cytology, GRAM and AFB staining. Dr. Gupta started ATT, thereafter, on 23.12.1999, the patient visited Pamposh Medicare Centre (OP-2) in the OPD.  The OP-1 examined him and advised FNAC and biopsy. On 27.12.1999, the patient had pain in right inter-coastal area, hence, fibro-fasciitis was suspected.  The OP-1 continued ATT and advised pain killers and called the patient after two weeks, but the patient never turned up. Thereafter, 8 months later patient approached different hospitals like LNJP, Rajiv Gandhi Cancer Hospital, and Gangaram Hospital wherein he was diagnosed as an advanced case of lung cancer and metastasis.  As per OPD slip of LNJP the patient took treatment there from 11.8.2000 to 22.8.2000. The patient underwent biopsy of supra clavicular lymph node including FNAC of right supra clavicular node, at Maulana Azad Medical College. It was reported as metastatic adenocarcinoma in bilateral supra clavicular lymph nodes.  Subsequently, the patient consulted and took regular treatment at Sir Ganga Ram Hospital from 28.8.2000 till 3.11.2000 for right lung upper lobe squamous cell carcinoma with multiple metastasis. (hepatic, cerebral, adrenal and  2ndrib + Vertebral Metastases, bilateral supra clavicular nodes). The patient developed brain metastasis. In the meantime on 17.10.2000 the patient was investigated at Rajiv Gandhi Cancer Institute & Research Centre, Delhi for CT guided FNAC and true cut biopsy right upper lobe tumor in chest wall. It was diagnosed as Squamous Cell Carcinoma.   
  8. Further we have perused the Delhi Medical Council order dated 05.08.2003 on the complaint made By Ms. Kamini Sharma.  It is reproduced as below:-

“It was established during the course of the inquiry that late Shri Rajinder Sharma was put on Anti Tubercular Therapy at Orthonova Institute of Advanced Surgery and Research, PCML, House 23, PushpVihar Community Centre, New Delhi – 110 062, prior to being examined by the respondent on 23rd December, 1999 at Pamposh Clinic.Thereafter, the patient was examined by the respondent on 24th December, 1999 and 27th December, 1999, whereon, the respondent prescribed Anti Tubercular treatment for 8 weeks and advised the patient to follow-up on 07th January, 2000.The diagnosis of tuberculosis and Anti-tubercular treatment provided by Dr. Anil Nadir was clinically appropriate under the circumstances.

The complainant admitted that her late husband Shri Rajinder Sharma did not follow-up his treatment with the respondent on 7.1.2000 or any day thereafter.He is in fact indulged himself in self medication besides continuing with the treatment.The complainant’s contention that the respondent prescribed the medicine for treatment of tuberculosis for a period of six months is not substantiated by any document on record.As per the complaint, it was only in a month of August 2000 that late Shri Rajinder Sharma decided to consult a doctor/specialist at LokNayak Hospital for his ailment, which reflects the indifference shown by the patient towards his death.

The consequence of events which followed after the last time (27.12.1999) late Rajinder Sharma was examined by the respondent and led to the demise of complainant’s husband on 19.11.2000 cannot be attributed to any action or omission on the part of Dr. Anil Nadir in the treatment prescribed by him.The complaint stands disposed.”

 

  1. To decide whether there was medical negligence?, we need to look in to  the sequence of events and answer
  1. Whether the OP failed to diagnose the patient’s cancer at initial stage? and
  2. Whether treatment for TB was wrong?
  1. It was an admitted fact that, the patient approached the OP on 16.12.1999 with the history of fever with chills, painful swelling, and weight loss .The patient was heavy smoker and a drug addict. Also, there was past history of testicular TB, treated by ATT for 8 months.  The Non Contrast CT Thorax  reported by Dr. G. Prem Kumar, a radiologist is reproduced as below:

“Axial sections of appropriate thickness with adequate intervals were done from Root of neck to the do of dea.

There is evidence of a lytic lesion with soft tissue component seen in the anterior end of right 1st and 4th ribs.  (Scan 9, 21, 22, 23, 24)

There is evidence of a small parenchymal lesion in the apical segment of right upper lobe extending to the pleura.  Rest of the lung fields are clear.

                        No significant mediastinal lymphadenopathy seen.

                        Trachea and its bifurcations are normal.

                        No pleural or pericardial effusion seen.

                        Mediastinal great vessels and cardiac size: Normal

OPINION:  CT SCAN findings are suggestive of:

  • LYTIC LESION WITH SOFT TISSUE COMPONET IN THE ANTERIOR END OF RIGHT 1ST AND 4TH RIBS

? Inflammatory        ? MITOTIC

  • SMALL PARENCHYMAL LESION IN APICAL SEGMENT OF RIGHT UPPER LOBE

S/o OLD GRANULOMA

ADV.    : FNAC OF THE RIB LESION.

  1. Also the FNAC/Cytology reveals as follows:

Smears reveal a hemorrhagic background showing numerous polymorphs along with few lymphocytes.  No epitheloid cell is seen in this.

            Gram’s staining – No organism seen

            AFB Staining –Smear is negative for Acid Fast Bacilli.

  1. On the basis of previous history of testicular TB and the CT scan report showing old granuloma, the cytology findings Dr. Gupta diagnosed it as a case of tuberculosis, hence initially started ATT. The OP-1 an orthopedic surgeon continued the same treatment and gave advice for FNAC/biopsy but, patient did not turn up for 8 months. Thus, it is clear that the OP1 never treated the patient. Thus it was the fault of patient who did not follow the instructions of doctor. The clinical history shows other investigations mimic tuberculosis. Therefore, the OP-1 is not responsible for day to day treatment.

Error of Judgment:

  1. We cannot ignore that, the patient had history of drastic loss of weight in the short duration (7kgs),  the CT revealed lytic lesion of 1st and 4th rib thus, the OP-1 should have first suspected Cancer than TB. There was old granuloma and the ESR was 44 mm; hence, there was possibility of healed TB focus or sarcoidosis. In addition, the patient had received ATT for testicular TB.  Hence, we are of considered view that, it was  an “Error of Judgment” that  the OP-1 failed to diagnose a cancer at initial examination of the patient.

 

Loss of Chance:

  1. Thus, the principle of “loss of chance” is applicable in this case.  The opposite party failed to diagnose or suspect malignancy in the patient despite several investigation, but on the basis of clinical and past history  OP-1 continued the treatment of ATT.  We apply the principle of loss of chance in this case.  The failure to diagnose would not matter so much because the patient was suffering from frank metastasis in the brain and liver.  Therefore, there were less than 50% chances of survival.  Hence, applying the principle cited above (Loss of Chance), we do not hold opposite party No. 1 liable for this negligence. ,

In the case of Gregg vs Scott brought to the House of Lords in 2002, it was established that;

 “a patient must prove that a doctor’s action, or lack of it, caused the patient to suffer injury and not just the chance of avoiding an injury.  In practical terms this means that a doctor failing to diagnose a case of cancer in which a patient has only a 25% chance of survival would not be found negligent.  Only, if the chance of survival was over 50% i.e. a probability of a cure rather than a chance of a cure, would negligence be found.”

Contributory Negligence:

  1. The complaint did not follow the advice of OP-1, about investigations like FNAC and biopsy of the lesion for proper diagnosis. But, after lapse of 8 months patient went to LNJP, which became fatal for him.  Thus, it was negligence from the patient, for which OP-1 is not liable.
  2. We may put reliance upon Bolam’s Test and catena of judgments of Hon’ble Supreme Court and this commission decided the issue of medical negligence, we are of considered view that, there was neither medical negligence nor any deficiency in service by the OPs. On the basis of foregoing discussion, the complaint is dismissed. There shall be no costs as such.
 
......................J
J.M. MALIK
PRESIDING MEMBER
......................
DR. S.M. KANTIKAR
MEMBER