P.N.SUDHAKAR GUPTA vs ANUGRAHA VITTALA NURSING HOME

IN this complaint, under Section 17 r/w Section 12 of the Consumer Protection Act, 1986, the complainant has sought compensation in a sum of Rs. 19 lakhs with interest thereon from the opposite party-Sri Anugraha Vittala Nursing Home, Bangalore.

THE complainant had a daughter by name, Rooparagini aged about 16 years. THE complainant took his daughter, Rooparagini, to the opposite party Nursing Home on 26.7.92 for treatment as she was suffering with temperature. Dr. R.S.K. Murthy, R.W. 1, did examine Rooparagini and on obtaining blood reports diagnosed the illness of the girl as ''typhoid fever'' and prescribed Pelox, Calpol and Becozyme C Forte for it. The girl, Rooparagini, again visited the Nursing Home on 30.7.92. RW 1, Dr. R.S.K. Murthy, examined the girl and advised her to take the medicines and to take bed rest. The daughter of the complainant complained of severe headache vomiting etc. on 9.8.92, so she was taken to the opposite party Nursing Home and she was admitted there on that day. RW 1 immediately gave the treatment, got the blood examination report and on verifying the blood reports a bottle of blood was given to the patient on 10.8.92. The patient, who was having a severe stomach pain, was given Baralgan and Navalgin in order to subside the pain of the stomach. There was Vaginal Bleeding. The opposite party gave another bottle of blood alongwith drips and antibiotic medicines in order to control and compensate the loss of vaginal bleeding and blood in stools. The daughter of the complainant stayed in the Nursing Home till 1.9.92. RW 1 got the blood examination done every day and gave the treatment. On 1.9.92 the girl Rooparagini was discharged.

It is the grievance of the complainant that the daughter of the complainant, though was suffering from Leukaemia, but RW 1 continued the same drug, that is Pelox. RW 1, during the period from 9.8.92 to 1.9.92, gave 10 bottles of blood to the daughter of the complainant. The daughter of the complainant visited the opposite party hospital again on 8.9.92 for further treatment. The complainant''s duaghter was again admitted in the opposite party Nursing Home on 14.9.92 as she was having Vaginal bleeding. RW 1 gave further two bottles of blood and referred the patient to Despande''s Clinical Laboratory for further examination of the blood. Dr. Deshpande gave the report as ''Acute Myeloblastic Leukaemia. RW 1, did not give any treatment to the girl for this disease; on the other hand, gave two more bottles of blood alongwith 25% Destrose.

THE condition of the patient did not improve even then. RW 1 referred the patient to Kidwai Memorial Institute of oncology (KMIO), Bangalore. In the said Institute, the girl was examined and checked up by a group of doctors. THEy carried out necessary investigations and found the disease suffered by the daughter of the complainant, as Leukaemia. THE complainant brought back his daughter from KMIO on 22.9.92. THE daughter of the complainant, even before the complainant could make arrangements for the expenses of further treatment, expired on 24.9.92. It is the further case of the complainant that he strongly suspected with regard to the treatment given by the opposite party Nursing Home and so he apprehended deficiency in service and gross negligence on the part of the opposite party in giving treatment to his daughter.

THE complainant, nextly averred, that subsequently he took the opinion of RW 2-Dr. Kiran about the treatment given by the opposite party Nursing Home and found deficiency in service on the part of the opposite party in giving the treatment to the daughter of the complainant, so he filed the complaint seeking compensation in a sum of Rs. 19 lakhs from the opposite party. The opposite party filed its version and denied that there was either any negligence in giving the treatment to the daughter of the complainant or deficiency in service on their part. The opposite party admitted the fact that it had treated the daughter of the complainant for the ailments suffered by her. The opposite party nextly averred that on examination of the patient they found that she was suffering with typhoid fever, so a Pelox medicine was given and subsequently when she was suffering from bleeding she was given transfusion of blood and necessary medicines to control the bleeding. The opposite party further averred that there was no significant improvement in the condition of the patient, so, she was sent to a senior pathologist, Dr. Deshpande, on 20.8.92; the report of Dr. Deshpande revealed Leukaemia lecuco-erythroblastic picture. Dr. Deshpande had also mentioned in the report that Leukaemia could not be ruled out and suggested a bone marrow aspiration study. The complainant refused to submit his daughter for bone marrow test.

THE patient thereafter was referred to haematologist. Dr. Badrinath for haematological investigations including a bone marrow aspiration test on 27.8.92. Dr. Badarinath, on studying, opined possibility of acute Leukaemia and has advised bone marrow aspiration for morphology, cytochemistry and cytogenetic markers. Even thereafter the father of the patient did not agree for bone marrow aspiration test. THE patient thereafter was given two more bottles of blood on 29th and 30th of August, 1992 to improve general condition. THE father of the patient opted to take his daughter to KMIO for further investigations and the patient was discharged on 1.9.92 with an advice to come back after bone marrow test report for further treatment.

NEXTLY, it is the case of the opposite party that thereafter the complainant came with the patient only on 14.9.92. The opposite party found that the complainant had not taken his daughter to KMIO. The patient''s condition had worsened. The opposite party insisted upon the complainant to take the paitent immediately to KMIO from the Nursing Home, so she was discharged on 16.9.92 after transfusion of two bottles of blood and infusing dextrose to improve her condition. The opposite party further averred that they had not committed any deficiency in giving treatment to the daughter of the complainant. It is really unfortunate that it was the complainant who had neglected to submit his daughter to bone marrow aspiration test and to take her to KMIO immediately. The opinion of RW 2 stating that the treatment given to the daughter of the complainant was not correct and Leukaemia was not detected at earlier stage and bone marrow test was also not necessary are all incorrect. The opinion given by RW 2 is a prejudicial opinion.

The opposite party further averred that they have done what all they could do under the circumstances and it was unfortunate that young girl succumbed to the serious disease with which she suffered. The opposite party, on the basis of these averments, sought the complaint to be dismissed.

DURING enquiry, the complainant examined himself as CW 1 and another witness. Dr. Kiran, as CW 2 and got Exs. C 1 to C 56 marked in evidence. The opposite party examined Dr. R.S.K. Murthy, Director of the Institute as RW 1 and got Ex. R 1 marked in evidence. We have heard the learned Counsel for the parties, perused the pleadings and the material placed on record.

RW 1, Director of the opposite party Nursing Home, who gave the treatment to the daughter of the complainant is a retired Professor of Medicine in Bangalore Medical College and in that capacity he had worked for 12 years. He had done MBBS, MD, FIAMS, and the complainant himself has admitted at para 19 of the complaint that RW 1 is an eminent and highly qualified doctor and former Professor of Medicine. RW 1, when the daughter of the complainant was brought to his Nursing Home on 27.7.92, got necessary tests made and on diagnosed the disease suffered by the patient as Typhoid fever and prescribed the medicines - pelox, calpol and becozyme C. Forte. Again on 30.7.92 the patient was brought to the Nursing Home and RW 1 further checked up the patient and prescribed certain medicines. The daughter of the complainant was again brought to the Nursing Home on 9.8.92 with severe headache, vomitting etc. so RW 1 got her admitted in the hospital. RW 1 gave a bottle of blood to the patient, secured blood reports and gave necessary drugs to the patient. The patient suffered vaginal bleeding and blood in stools. The complainant himself, at para 11 of the complaint, has averred, thus: "11. The complainant submits that as per the prescription made by Dr. R.S.K. Murthy on 9.8.92, the medicines were given. The complainant submits that from 9.8.92 to 1.9.92 the continuous treatment had been given by the respondent hospital and various drugs had been administered into the body of the complainant''s daughter and as the blood examinations were done everyday and reports were also obtained by Dr. R.S.K. Murthy, while treating Rooparagini from 9.8.92 to 1.9.92 as per the Annexures 16 to 34. On 1.9.92 the patient was discharged and the discharge certificate was also issued to the complainant mentioning all the drugs which had been administered by them."

While the patient was in-patient in the Nursing Home, when RW 1 found no response and significant improvement in the condition of the patient, requested the Senior Pathologist Dr. Deshpande for investigation. Dr. Deshpande, on investigation, gave his report as per Ex. C 22 dated 20.8.92 stating that Leukaemia could not be ruled out and suggested a bone marrow aspiration study. The father of the patient did not agree for the same. The complainant has stated that RW 1 did not ask them for bone marrow aspiration study. The complainant, in his evidence at page 3 of his statement, has stated, thus: "The opposite party-Nursing Home did not ask me to go for bone marrow test."

This statement is belied by his own version in his cross-examination. The complainant, has in this regard at page 6 of his statement, stated thus: "Dr. Murthy referred the patient to Dr. Deshpande. Dr. Murthy referred the patient to Dr. Deshpande at the instance of senior Gynecologist, Mrs. Murthy. I took the patient to Dr. Deshpande. He took the bood test and gave a report. I did not see the report. I can read and write English. The witness further says that he had read Dr. Deshpande''s report. The report of Dr. Deshpande was that Leukaemia is not ruled out. Dr. Deshpande did not confirm Leukaemia in his report. Dr. Deshpande advised bone marrow study to confirm Leukaemia. Dr. Deshpande did not explain me how bone marrow aspiration has to be done. Dr. Murthy also did not explain me how bone marrow aspiration has to be done."

The report, Ex. C 22, makes it clear that Dr. Deshpande had advised for bone marrow study. Subsequently, RW 1 referred the patient to Haematologist, Dr. Badrinath for haematological investigation including a bone marrow aspiration test on 27.8.92. Ex. C 28 is the letter given by the opposite party to Dr. Badrinath. Dr. Badrinath gave his report, as per Ex. C 30. Dr. Badrinath did peripheral blood smear study and opined a possibility of acute Leukaemia and advised bone marrow aspiration study for morphology, cytochemistry and cytogenetic markers. He also suggested that some special studies are not done in Bangalore and so patients were to go to Vellore for that. The complainant has also admitted in his evidence, thus: "As the bleeding did not come under control, so I took the patient to Dr. Badrinath on 27.8.92 as per the advice of the doctors in the Nursing Home. On 27.8.92, Dr. Ramesh son of Dr. Murthy gave a letter as per Ex. C 28 to Dr. Badrinath. In the said letter, Ex. C 28, Dr. Ramesh had suggested bone marrow aspiration study as well. Dr. Badrinath made the blood test on 28.8.92 and on the same day gave his report. Dr. Badrinath in his report, as per Ex. C 30 did not confirm Leukaemia. Dr. Badrinath''s report also showed that for confirmation of Leukaemia study of bone marrow aspiration for marphology, cytochemistry and cytogenetic markers is required."

IT is material on record that the complainant did not take his daughter for bone marrow test, instead got his daughter discharged from the Nursing Home on 1.9.92. Ex. C 33 is the said discharge summary issued by the opposite party on 1.9.92. Even in the said report Ex. C 33 the opposite party had prescribed certain medicines and asked the complainant for review after bone marrow study report.

THE complainant, has in this regard, stated thus: "I was not advised by the opposite party to get the bone marrow test done. It is not true to suggest that as I did not get the bone marrow test done so my daughter was discharged from the Opp. Party Nursing Home on 1.9.92 and that I was asked to come to the Nursing Home after the said test was done. Ex. C 33 is the discharge summary, it was given to me on 1.9.92. It is stated in the said report that the patient would be reviewed after the bone marrow test was done. I did not get the bone marrow test done from 1.9.92 till 14.9.92, the witness volunteers as I was not asked to get the test done. It is not true to suggest that Dr. Badrinath and Dr. Deshpande of the Opp. Party Nursing Home have all along insisted upon me to get the bone marrow test done."

The complainant got his daughter discharged from the opposite party-Nursing Home on 1.9.92 and took her home. He came to the opposite party Nursing Home only thereafter on 14.9.92. The opposite party on 14.9.92 found that the condition of the patient had worsened, she had lost weight and had become blind in both the eyes. The opposite party insisted, finding such a condition of the patient, upon the complainant to take immediately to Kidwai Memorial Institute of Oncology. The opposite party-Nursing Home got further report on 15.9.92 from Dr. Deshpande as per Ex. C 37. The said report, Ex. C 37, showed acute Myeloblastic Leukaemia. So the opposite party immediately asked the complainant to take his daughter to KMIO and gave two bottles of blood to improve her condition and discharged her on 16.9.92. Thereafter it is the say of the complainant himself that he took his daughter to KMIO, who investigated into the matter and required admission of the patient for further treatment. But the complainant, instead of getting her admitted in KMIO, got the patient back from the said Institute home who unfortunately expired on 24.9.92.

Ex. C 56 is the case sheet maintained by the opposite party Nursing Home in respect of the said patient. At Ex. C 56 (a) dated 21.8.92 and at Ex. C 56(b) dated 24.8.92, it was found that the patient was advised for bone marrow aspiration test. In the said case sheet dated 27.8.92, the report of Dr. Badrinath is also referred.

THE learned Counsel for the complainant, with reference to the notes at Exs. C 56(a) and C 56(b), submitted that they were interpulations. As referred above, the reports of Dr. Deshpande and Dr. Badrinath, clearly mentioned that bone marrow aspiration test was necessary and the complainant himself has admitted that he was aware of these reports. In view of these facts and the circumstances, the submission of the earned Counsel for the complainant that Exs. C 56(a) and C 56(b) are interpulations has no substance. The complainant placed reliance on the report of RW 2-Dr. Kiran. The said report is at Ex. C 41 wherein Dr. Kiran has stated thus: "If a diagnosis were to be made earlier at the A.V. Hospital, she would have gone to remissions with antileukaemic treatment and survived."

Dr. Kiran admitted that he gave his opinion only on the basis of discharge summary given by the Opp. Party as per Ex.C33. He had neither examined the patient nor had seen the case sheet or the reports of Dr. Deshpande and Dr. Badrinath. Dr. Kiran had done his MBBS and MD in Forensic medicines, had admitted that he had not treated any cancer patient. RW 2 has further stated that Pelox drugs should not have been given to the patient. In the re-examination, CW 2, has stated, thus: "As per the literature of 1992, Pelox and Cifron tablets were not to be given for the persons below age of 16 years. As per literature of 1995 such a medicine can be given for adolescent also."

IT is material on record that the patient was given blood transfusion and also antibiotics. RW 2 has in the cross-examination, stated thus: "Blood transfusion and antibiotics is the part of Leukaemia".

Having regard to this evidence of RW 2, the version that no proper diagnosis were made and no proper treatment was given to the patient looses substance. The Hon''ble Supreme Court in Achutrao Haribhau Knodwa v. State of Maharashtra and Others, reported in I (1996) CLT 532 (SC), at para 14=1996 (2) SC Cases, page 634, observed, thus: "14. The skill of medical practitioners differs from doctor to doctor. The very nature of the profession is such that there may be more than one course of treatment which may be advisable for treating a patient. Courts would indeed be slow in attributing negligence on the part of a doctor if he has performed his duties to the best of his ability and with due care and caution. Medical opinion may differ with regard to the course of action to be taken by a doctor treating a patient, but as long as a doctor acts in a manner which is acceptable to the medical profession and the Court finds that he has attended on the patient with due care, skill and diligence and if the patient still does not survive or suffers a permanent ailment, it would be difficult to hold a doctor to be guilty of negligence."

In the present case, the opposite party- RW 1, has performed his duties to the best of his ability and with due care and caution in diagnosing and giving treatment to the patient-the daughter of the complainant. RW 1 has done his duty with reasonable care, skill and knowledge. The circumstances referred to above, would clearly go to show how diligent RW 1 was in giving treatment to the daughter of the complainant. Everyday blood reports were taken and the patient was even referred to the senior pathologists Dr. Deshpande and Dr. Badrinath and the reports were obtained from them, but unfortunately the complainant did not comply with the instructions given therein and insisted upon him by RW 1. Even then RW 1 did his best under the circumstances in giving treatment to the patient with all reasonable degree of care, skill and knowledge.

SO having regard to these facts and in the circumstances of the case, it cannot be said that the opposite party committed deficiency in service in diagnosing and giving treatment to the daughter of the complainant. SO the grievance of the complainant that the opposite party Nursing Home committed deficiency in service has no substance. ORDER In the result, therefore, this complaint fails and it is dismissed. The parties are directed to pay and bear their own costs in this proceeding. Complaint dismissed.