Dr. T.K. Chakraborty vs Mukesh Patra

Dr. S. M. Kantikar, Member

The Appellants have filed the instant Appeal under section 19 of the Consumer Protection Act, 1986 against the Order passed by the State Consumer Disputes Redressal Commission, Delhi (hereinafter referred to as the “State Commission”) in C.C. no. 103/2003, whereby the State Commission allowed the Complaint and awarded Rs.10/-lakh as compensation and also directed to pay Rs.10,000/- as litigation cost.

Brief facts are that on 03.01.2003, Mukesh Patra, about 16 years boy (hereinafter referred to as the ‘patient’) approached Dr. Chakraborty /Appellant with complaint of pain in his left knee due to a hit by a stone few days back. The Appellant doctor took an X-ray and diagnosed it as ‘Tuberculosis (T.B.) of bone’ and advised the anti-tubercular treatment (ATT) for at least 3 months. ATT was started but the condition of patient deteriorated and pain became unbearable. It was alleged that from the biopsy report of lesion in left leg, the OP/Appellant told it as T.B. of bone. On 09.03.2003, there was increase in swelling and pain. The patient was referred to Dr. M.F. Rehman (Orthopedic Surgeon), who immediately stopped ATT and diagnosed it as ‘Tumor’ and he further referred the patient to AIIMS. But on 11.03.2003, the patient was taken to L.N.J.P. Hospital to Dr. A.K. Dhal and Dr. Lalit Mani. After examination the doctors opined that the diagnosis and treatment given by OP for TB was wrong, but it was malignant tumor of bone ‘Osteosarcoma’. On 17.03.2003, at Apollo Hospital, MRI Bone and Scan test were done. The biopsy was performed and it was diagnosed as ‘telangiectatic osteosarcoma - vari’. Finally, therefore, on 22.04.2003, the left leg of the patient was amputated and he was discharged on 29.04.2003. Being aggrieved by the alleged sheer negligence of the OP, the Complainant filed the Consumer Complaint before the State Commission.

The OP filed written version and denied negligence during treatment. The OP submitted that he was registered with Delhi Medical Council (DMC). The OP examined the patient and found a swelling about 1.5 x1.5 cm in the left knee. It was firm and tender. The preliminary routine blood tests, X-Ray, Mantoux Test were performed. X-Ray revealed soft tissue swelling with a small area of erosion at lower end of femur. The blood ESR was high and Montoux test was found to be positive. Therefore OP started ATT, but he did not rule out the possibility of Bone Tumor. On 09.01.2003, the Complainant came to OP for not getting much relief, from the medicines, but thereafter the patient did not turn up. According to the OP, the biopsy sample drawn by him unfortunately did not contain any bony tissue but it was only muscle tissue. There was no negligence on the part of OP by any stretch of imagination.

The State Commission held the OP liable for medical negligence, partly allowed the Complaint and observed and directed the OP to pay Rs.10,00,000/- as compensation for mental, agony, harassment and sheer suffering. It further ordered to pay Rs. 10,000/- as cost of litigation.

Being aggrieved, the OP filed the instant First Appeal.

We have heard the learned Counsel for both the sides and perused the material on record.

The learned Counsel for the Complainant reiterated the facts. The Counsel vehemently argued that the patient was suffering from bone cancer, but the OP wrongly treated him for TB without any confirmation. The early diagnosis of cancer would have avoided amputation of leg.

The learned Counsel for Appellant- OP reiterated his written version and evidence. He relied upon Jacob Mathew v. State of Punjab[(2005) 6 SCC 1] case and submitted that the State Commission failed to consider the opinion of expert. The Appellant has only advised ATT drugs for one week. The patient himself did not follow OP’s advice for biopsy but delayed to undergo biopsy, therefore Appellant was not responsible. The Central Government (Appellate authority) constituted a high power committee of inter-disciplinary six super specialists to examine the recommendations of MCI. The Committee, after considering all documents including MCI recommendations of MCI, vide its order dated 30.04.2010, concluded that the alleged negligence of OP has not been completely substantiated and therefore the 6 weeks suspension of OP as ordered by DMC was reduced to two weeks. The Appellant has already undergone the suspension period of 2 weeks by that time. The learned Counsel further argued that the MCI is not the Appellate Authority and its recommendations have no binding force. The committee of Central Govt. is an Appellate Authority and its decision alone is binding on the parties.

We have gone through the DMC, MCI orders and Order of the committee appointed by Central Govt. Perused the expert opinion of Dr. Dhal, Dr. Siwach, the relevant medical literatures on bone TB and malignancies and the Case laws filed by both the parties.

Findings and Reasoning:

We note that the DMC order was against the OP, therefore the OP filed a Writ Petition before Hon'ble High Court of Delhi, which directed the Medical Council of India (MCI) to decide the appeal expeditiously. The relevant observations from MCI are reproduced as:

In bone tumors whether core biopsy or open biopsy should be taken is decided by the treating orthopedic surgeon because it is technically demanding procedure as from which area the biopsy should be taken is very important. Hence on this front also Dr. Chakraborty is not competent to take proper core biopsy for the bone under local anaesthesia. Dr. T.K. Chakraborty put the patient on the ATT from very beginning on 03.01.2003 and stopped after six days i.e. on 09.01.2003, where the accepted form of ATT is once a trial court is started even for diagnostic purpose, should not be stopped less than three weeks unless the diagnose is confirmed. I am unable to understand that how he decided to discontinue the ATT treatment and then again started is not scientific.

In the light of the above if any doctor works in the fled in which he is not competent or specialized comes under medical negligence as the person is not in possession of skill, knowledge and experience in that particular filed as is the case of Dr. T.K. Chakraborty.

It is pertinent to note that the expert opinion of Dr. Dhal, who had examined and treated the patient in LNJP Hospital. However ethics committee of the MCI relied upon the opinion of expert, Dr. Siwach who never seen/examined the patient. Dr. Dhal in his opinion has observed as below:

It seems reasonable to entertain a differential diagnosis of Tuberculosis & Osteosarcoma in this case.

Trial of Anti-tubercular drugs on clinical suspicion is in order.

As per record patient was referred to Orthopaedic surgeon on 09.01.2003 by the treating doctor. It seems the patient visited an Ortho Surgeon only on 09.03.2003.

The treating physician performed a biopsy on 21.02.2003 which seems a logical step since the lesion seemed not responding to anti-tubercular drugs.

We further note that the Central Government, Ministry of Health and Family Welfare constituted high powered committee of six interdisciplinary Super specialists to examine the recommendation of MCI. The Committee gave personal hearing to the parties and passed following order on 30.04.2010:

“14. The Appeal of Dr. T.K. Chakraborty has been considered in the Ministry of Health & Family Welfare and the following observation made:-

i. the patient was referred to an orthopedic surgeon on 9.1.2003 but seemingly the patient visited the surgeon only on 09.03.2003;

ii. as per differential diagnosis, the patient was treated for bone TB and at the same time advised to undertake open biopsy on 6.01.2003 which was not done until he himself performed muscle biopsy;

iii. treatment given by him did not contribute to the malignancy and subsequent death of the patient (as alleged by the father of the deceased patient)

Thus, the competent authority concluded that the negligence on the part of the Appellant has not been completely substantiated. Therefore, the 6 weeks suspension ordered by DMC to the OP doctor was curtailed to 2 weeks which he has already been completed. The said order of the Secretary, Ministry of Health & Family Welfare, Government of India dated 30.04.2010 was not challenged by the Complainants.

It is pertinent to note that the Appellant in his support put reliance on the judgment of Martin F. D'Souza v. Mohd. Ishfaq[(2009) 3 SCC 1], wherein the Hon’ble Supreme Court has held as:

“111. The courts and the Consumer Fora are not experts in medical science, and must not substitute their own views over that of specialists. It is true that the medical profession has to an extent become commercialized and there are many doctors who depart from their Hippocratic Oath for their selfish ends of making money. However, the entire medical fraternity cannot be blamed or branded as lacking in integrity or competence just because of some bad apples.

It must be remembered that sometimes despite their best efforts the treatment of a doctor fails. For instance, sometimes despite the best effort of a surgeon, the patient dies. That does not mean that the doctor or the surgeon must be held to be guilty of medical negligence, unless there is some strong evidence to suggest that he is.

The Appellant could not get rescue from the above decision. In our considered view, the act of OP was “an act of Omission & Commission” thus it was negligence. The OP was liable for non-detection of that Osteosarcoma, non-reference of the patient to an expert; absence of proper and timely treatment.

According to OP, he performed biopsy and after examining the biopsy report dated 21.02.2003, he once again asked the patient to get open biopsy done. But the patient till 09.03.2003 did not get it, therefore, he referred the patient to Orthopaedic Surgeon.

It is pertinent to note that OP performed the biopsy wrongly, the tissue yielded was muscle. It was not performed from the bony lesion. He could have referred the child to an Orthopedic surgeon. Thus it was an act of Omission, it was beyond his skill and competence. Thus it was not a reasonable care.

We do not accept that the OP stopped ATT because he was upset as his advice for biopsy was not being followed by the patient. It shows unprofessional concern of the treating doctor. Moreover, failure and delay to diagnose Osteosarcoma, certainly led to rapid deterioration and fatal for the patient. In the instant case biopsy was admittedly done after delay of two months.

Admittedly the OP was a general physician, neither an expert to treat bony lesions either Tuberculosis or Osteosarcoma (cancer). He did the needle biopsy (FNAC/FNAB) instead of open biopsy though having no expertise or skill. Thus it resulted in to failure to diagnose Osteosarcoma and wrong treatment. Thus it was an “act of Commission” ie what he was not supposed to do. Further, some interpolation are visible in the prescription, however it has no bearing on the instant case.

Conclusion:

We would like to rely upon few decisions of the Hon’ble Supreme Court, which laid down the law on medical negligence and doctors liability. In the case of Spring Meadows Hospital v Harjyot Ahluwalia[ (1998) 4 SCC 39], it was observed as below:

“Very often in a claim for compensation arising out of medical negligence a plea is taken that it is a case of bona fide mistake which under certain circumstances may be excusable, but a mistake which would tantamount to negligence cannot be pardoned. In the former case a court can accept that ordinary human fallibility precludes the liability while in the latter the conduct of the defendant is considered to have gone beyond the bounds of what is expected of the skill of a reasonably competent doctor…’

The Hon’ble Supreme Court laid down certain duties of the doctor. In the cases, Dr. Laxman Balakrishna Joshi vs. Dr. Trimbak Bapu Godbole & Anr[AIR 1969 SC 128]. and A.S. Mittal vs. State of U.P[AIR 1989 SC 1570], it was observed that the doctor owes to his patient certain duties which are:

(a) a duty of care in deciding whether to undertake the case;

(b) a duty of care in deciding what treatment to give; and

(c) a duty of care in the administration of that treatment.

A breach of any of the above duties may give a cause of action for negligence and the patient may, on that basis, recover damages from his Doctor. In Kusum Sharma & Ors. v. Batra Hospital and Medical Research Centre & Ors.[ (2010) 3 SCC 480], it was held that the breach of expected duty of care from the doctor would amount to negligence. It was further held that, if a doctor does not adopt proper procedure in treating his patient and does not exhibit the reasonable skill, he can be held liable for medical negligence.

On the entirety and collective reading of evidence and the medical record, it is evident that Dr. T. K. Chakraborty was a general physician (MBBS, DA), not an Orthopedic Surgeon. He was not competent to diagnose and treat either osteosarcoma or tuberculosis of bone. He ventured to do needle biopsy (FNAC) which was not his domain. He would have referred the patient either to Surgical Pathologist or a surgeon/orthopedician to obtain biopsy. Thus, it clearly establishes the failure of duty of care. The OP’s duty was limited to primary treatment or proper referral, but he started ATT and same was stopped within few days and again restarted without any justification. We agree with the findings of professional regulatory bodies (DMC and MCI) and the opinion of Committee of Central Govt. (H & FW). Thus, such act of omission / commission shall not be construed as a bona fide mistake.

Based on the foregoing discussion and respectfully following the precedents, we do not find any merit in the instant Appeal, which needs no interference in the Order of the State Commission. Accordingly, the Appeal stands dismissed.

The Parties to bear their own costs.