AI Structured Summary
Not yet generated for this judgment
Judgment
M. Shreesha, J
Challenge in this Revision Petition under Section 21(b) of the Consumer Protection Act, 1986 (in short "the Act") is to the order dated 29.03.2013 in First Appeal No. 85 of 2012, passed by the Andhra Pradesh State Consumer Disputes Redressal Commission, Circuit Bench at Vijayawada (for short "the State Commission"). By the impugned order, the State Commission has allowed the Appeal and set aside the order of the District Consumer Disputes Redressal Forum-II, Vijayawada, Krishna District (for short "the District Forum") directing the Opposite Party to pay an amount of ₹1,50,000/- together with costs of ₹3,000/-.
The facts in brief, are that the Complainant's wife (hereinafter referred to as "the Patient") approached the Opposite Party doctor (hereinafter referred to as the "Treating Doctor") and underwent an Hysterectomy operation conducted by the Treating Doctor on 11.09.1999. It was averred that the Patient herein had approached the Treating Doctor several times regularly between 09.02.2000 to 17.04.2007 with complaint of fever, headache and cough. Thereafter, the Treating Doctor referred the Patient to Dr. Bhanu Prabhakar on 14.07.2007, who after examining the Patient suspected lung cancer and a biopsy was conducted at Indo-American Cancer Institute and Research Centre at Hyderabad and it was diagnosed that the Patient was suffering from 4th stage of lung cancer. It was averred that the Patient was treated from July 2007 to November 2008 and has finally expired on 21.11.2008. It was pleaded that though the Complainant and the Patient visited the Treating Doctor several times between 09.02.2000 and 17.04.2007, complaining of cough and fever, the Treating Doctor failed to diagnose the ailment and also did not refer her earlier for proper diagnosis. It was stated that had the Treating Doctor diagnosed the cancer at an early stage, the chances of the Patient survival would have improved. The Complainant got issued a legal notice dated 08.02.2010, which was received by the Treating Doctor, but there was no response. Hence, the Complainant approached the District Forum seeking an amount of ₹10,00,000/- towards medical expenses, ₹5,00,000/- towards mental agony, ₹1,000/- towards costs and other reliefs.
The Treating Doctor filed her Written Version contending that she had conducted hysterectomy on the Patient on 11.09.1999 and also that the Patient visited her clinic whenever she fell ill till the year 2007. It was averred that as per the memory of the Treating Doctor, the Patient complained of minor headache and fever for which she had treated her with utmost care and caution. Thereafter, in the month of April 2007, when the Patient complained of severe illness, she was advised to take an X-Ray and it was found that there was a lesion and abnormality in lungs and, thereafter, she had referred her to Dr. Bhanu Prabhakar who is a chest specialist. Subsequently, it was informed to the Treating Doctor that the Patient had died on 21.11.2008.
The District Forum based on the evidence adduced, dismissed the Complaint on the ground that there was no negligence in the treatment rendered by the Treating Doctor to the Patient.
Aggrieved by the said order, the Complainant preferred First Appeal No.85 of 2012 before the State Commission, which allowed the Appeal and set aside the order of the District Forum observing as follows:
The respondent despite the patient complained of pain in her upper abdomen , neglected to advise for the required tests for a considerable period of time and after she advised for the X-ray and the report had shown lesion in the month of April,2009 she continued to administer treatment to the patient and she referred the patient to Dr.Bhanu Prabhakar, Chest specialist on the premise that he is specialist in the field. The respondent administered improper treatment to the patient which ultimately led to the loss of the patient's life. The effect of the treatment administered by the respondent can be viewed by the letter dated 02.12.2008 issued by Dr. Shiva Kumar of Indo-American Cancer Institute & Research Centre, Hyderabad which would reflect the pathetic condition the patient was taken into , as under:
"Mrs. D.Vijaya Kumari 48 years a single patient was beaming M.R.No.35632. She was a case of C.Lung (NSCLC) with cough and breathlessness. However we have treated our level best. But she could not survived. If she could have been brought earlier stage of cancer and identified it with first (OR) Earlier stage and it may help's she could have been survived and she was neglected in the previous stages. Because of her ignorance of her problem. "
The patient though was suffering from fever, cough and breathlessness and she did not consult any other doctor. The patient was equally negligent as the doctor as seen from the letter of Doctor Shiva Kumar and on account of her ignorance; she had permitted the disease to spread to an advanced stage. Taking into consideration of the totality of the circumstances, we are inclined to award an amount of Rs.1,50,000/- towards compensation to the appellant.
In the result, the appeal is allowed setting aside the order of the District Forum. Consequently, the complaint is allowed. The opposite party is directed to pay an amount of Rs.1,50,000/-"
On 31.01.2019, Mr. K.V. Srinivas Prasad, Advocate appeared for the Revision Petitioner. Vide order dated 06.02.2019, though none appeared for the Revision Petitioner, an opportunity was given to file Written Submissions by 08.02.2019. This order was not complied with. Since, it is a Consumer Complaint pertaining to the year 2010, this Revision Petition is being disposed of on merits.
It is stated in the grounds that the Treating Doctor had taken all possible precautions and referred her to a Chest Specialist, when she had suspected that there was a lesion in the X-Ray. It is also their case that there was no expert evidence brought on record to establish that there was negligence on behalf of the Revision Petitioner and that the Patient was treated by the Revision Petitioner for about 7 years from 2000 to 2007 on various dates.
It is an admitted fact that the Patient complained of vomiting and headache on 09.02.2000 and cough on 06.07.2000 and again on 12.09.2000, the Treating Doctor prescribed 'Viscodyn' syrup. The Patient complained of pain in the upper abdomen and edema of feet on 17.01.2003 and thereafter she complained of pain in the upper abdomen and breathlessness. The Treating Doctor diagnosed the disease as lymphadenitis or Koche's disease and she prescribed R-Cinex tablets for treatment of tuberculosis. It is an admitted fact that the Patient continued to suffer from cough, cold and breathlessness and the Treating Doctor advised X-Ray on 14.04.2007 and in this X-Ray a lesion was found which evidences that the Treating Doctor had knowledge of the existence of lesion in the Patient's lung since April 2007, but referred to the Chest Specialist only in July, 2007. For better understanding of the case, the referral letter of Dr. Bhanu Prabhakar dated 14.07.2007 reads as follows:
" Here by referring to you Mis.D.Vijayakumari hypertensive c cough ayascum on & off 1-2yrs. Pt. was diagnosed to have tuberculosis mediastiual lymphadenopathy in April. Pt. was on R.Cinex600u Combutol 800 1od, pyzine 1.5gm from 2.4.2000. Rpt x-ray done. There was no improvement. Significant wt. loss of /4 in 3M+".
(Emphasis supplied)
From the afore-noted referral letter, it is evident that the Patient was treated for Tuberculosis mediastinal lymphadenopathy since April 2007. The Patient had weight loss of 5 kg within this period of 3 months. It is not in dispute that the Patient was treated for the same till July 2007 and thereafter she was referred to a Chest Specialist. It is stated by the Treating Doctor that in the month of April 2007, when the Patient had complained of severe illness she was advised to take an X-Ray and on verification of the report it was found that there was a lesion and thereafter, she was referred to Dr.Bhanu Prabhakar, the Chest Specialist.
Admittedly the X-Ray taken in April 2007 revealed mediastinal lymphadenopathy with fever and cough in a presumed non-smoker though no such mention of that was made in the chart and treatment for tuberculosis was initiated without referring to any pulmonologist. There was lapse of time from April 2007 till July 2007. Though the record does not show any petscan was taken to establish whether the cancer was in stage III or stage IV, we place reliance on the Affidavit filed by the Oncologist, who stated that it is stage IV cancer. Given her level of expertise, for her specific specialty, the Treating Doctor could have referred her to a Pulmonologist in April 2007 itself. While holding the Treating Doctor negligent in not referring the Patient earlier to a pulmonologist, keeping in view the material and medical record filed before us we are of the considered opinion that the State Commission has awarded only a reasonable compensation of Rs.1,50,000/- and we see no ground to interfere with the well-reasoned order. The record shows that the State Commission has not awarded any interest. It is pertinent to note that the Complainant did not prefer any Appeal for enhancement.
In the result, this Revision Petition is dismissed. No order as to costs. Needless to add, the entire decretal amount deposited before the State Commission in terms of the order dated 15.05.2013 of this Commission be released to the Complainant with accrued interest, if any.