Shyam Sunder Sharma (Dr.) vs Atar Singh And Anr.

THIS appeal has been filed by Dr. Shyam Sunder Sharma being aggrieved by the order dated 15.2.1999 passed by the Hon''ble State Consumer Disputes Redressal Commission, Rajasthan at Jaipur in Complaint No. 98 of 1994 filed by Mr. Atar Singh alleging medical negligence on the part of the appellant and respondent No. 2. The State Commission directed the appellant to pay an amount of Rs. 2.5 lakh to the respondent No. 1, Mr. Atar Singh (the original complainant) within three months from the date of the order or else it would attract interest at the rate of 12% p.a. along with cost of Rs. 2,500. Santokba Durlabhji Memorial Hospital is respondent No. 2 in this appeal who were added, later, as opposite party in the State Commission

BRIEF facts of the case are:

THE complainant, Mr. Atar Singh, working as Sub -Inspector in Rajasthan Police Department, on 1.6.1993, admitted his father, Shri Duli Chand, aged 75 years in SMS Hospital for treatment of jaundice. He was discharged on 8.6.1993 after preliminary examination and diagnosis. It is an admitted fact that, on 31.5.1993, Dr. Dinesh Swaroop of Medical Unit -6 of SMS Hospital examined the patient and referred him to Okay Diagnostic Centre and after obtaining the report of the Okay Diagnostic Centre he was treated in the SMS Hospital. Dr. Dinesh Swaroop, who was treating Duli Chand, referred him to Dr. Shyam Sundar Sharma, who is a specialist in lever and gastrointestinal diseases and works in the same hospital i.e. the SMS Hospital, Jaipur for the purpose of carrying out ERCP (Endoscopic Retrograde Cholangio Pancreatography) test. Dr. Shyam Sundar Sharma admitted the patient, Mr. Duli Chand in SMS Hospital and conducted the ERCP test on 8.6.1993. The report which was given by Dr. Shyam Sundar Sharma is given here as under: "P/A (Per Abdominal Examination) Soft Hard nodular mass in the Rt (right) side of umbilicus liver/spleen/ -ve (Negative) CNS (Central Nervous System) NAD (No Abnormality Detected) Ca - (Carcinoma - Cancer) head pancreas c (with) BPH (Benign Prostatic Hyperplasia) Thanks for referral "8.6.1993 ERCP attempted. Ampulla was large and bulky. Dye was seen coming out of lower CBD. CBD could not be filled. Appearance was consistented with lower CBD block, this can be either due to Pancreatic turner or large stone. Stenting attempted with terumowire and soehendra dilator but failed. It seems to be complete block. No x -ray films taken, patient is advised to come after one month for revaluation as benign disease cannot be ruled out completely though age is in favour of Malignancy. Sd/ - S.S. Sharma." Submissions of the Respondent No. 1

Learned Counsel for the respondent No. 1 contended that the appellant, Dr. Shyam Sundar Sharma, after discharging the patient from the SMS Hospital charged Rs. 4,000 as fee from him and advised him to get another test from Santokba Durlabhji Memorial Hospital (SDMH), Jaipur. Another test was conducted in SDMH and Duli Chand was required to pay Rs. 350 and thereafter on the same evening Dr. Shyam Sundar Sharma, at his residence, gave another report stating that Duli Chand is suffering from cancer which is given here as under: "Dr. Shyam Sunder Sharma MD, DM(Gastro), MNAMS(Gastro) Consultant Gastroenterologist and Hepatologist Fello Therapeutic Endoscopy -Germany Assistant Professor, SMS Hospital, Jaipur dated 8.6.1993 Doolichand Pt. (Patient) presented c(with) features of obstructive jaundice ERCP(Endoscopic Retrograde Cholangio Pancreatography) revealed complete block of lower CBD( Common Bile Duct) so stenting was not possible. Final Impr(lmpression) Malignant biliary obst (obstruction) due to Ca(Carcinoma -Cancer) pancreas. Adv(Advised) 1. Questran 1 sachet c (with) each meal. 2. Syp (Syrup) Digiplex 2 TSF (Tea Spoon Full) BD (Twice a day)!!..... !! 3. Cap (Capsule) Cobadex Fort 1 OD (once a day)

IT is the case of the respondent No. 1 that appellant has given two reports on the same day and charged him twice for the same ERCP test conducted in SMS Hospital as well as in SDMH only to extort money and gave false diagnosis. The respondent No. 1 and his family were worried because the appellant stated that the patient was suffering from cancer and is likely to die within two months. Mr. Duli Chand was taken to the village because no treatment was available at the last stage for him. Thereafter, Duli Chand had taken Ayurvedic treatment and only there he was told that this is not a case of cancer. Thereafter, the respondent No. 1 took his father to Diwan Chand Satya Paul X -Ray Clinic, New Delhi for examination. As per its report dated 28.7.1993 it was shown that there is no evidence of mass lesion and liver showed no evidence of metastatic disease.

THE patient was admitted to City Clinic, New Delhi where the surgery of prostate was performed upon him and the patient got complete relief from his urine -passing problem of which he was complaining. It is submitted that appellant had given a false report which is proved by the report of Diwan Chand Satya Paul X -Ray Clinic and which was followed by surgery in City Clinic and the discharge slip of City Clinic on page 86 clearly shows: "Transversical Prostatectomy" after diagnosing that there was retention of urine due to, "Benign Hyperplasia Prostate with Prostatites"

LEARNED Counsel for the respondent No. 1 submitted that regarding the documents which have been placed on record the appellant has contended that the signatures made by the respondent No. 1 differ and procured an opinion from Shri Anil Kumar Kutejia, a Hand Writing Expert. It is submitted that the appellant has falsely alleged that this is a forged document and the document placed along with application on pages 18 to 34 bears his regular signatures which he uses for official purposes and certain documents placed from pages 11 to 17, although show some difference in appearance but both the signatures are of the respondent No. 1. It is submitted that the report of Shri Anil Kumar Kutejia is incorrect and that it appears that he has given it at the instance and pressure of the appellant and that the report should be ignored.

LEARNED Counsel for the respondent No. 1 submitted that it is clear deficiency in service and negligence on the part of the appellant on the following grounds: Firstly, different opinions were given on the same day in different places; secondly, the intent of the appellant was to extract more money from the patient by showing it as a serious disease, which is an unfair trade practice; thirdly, the appellant''s father and the family suffered mental agony as the family had to leave everything and taken care of the patient for his daily requirements and activities; fourthly, the respondent No. 1 had to dispose of its cattle and crops at throwaway prices to raise money for his father''s treatment; fifthly, the patient was also taken to Dr. R.K. Solanki of Jaipur who advised psychodiagnosis, x -ray skull lateral view, CT Scan head, etc., for his treatment. The Medical Superintendent of SDMH, Dr. Ramji Narayan, has filed the documents to show that Mr. Duli Chand had paid Rs. 350 for ERCP as outside patient and that ERCP screening was conducted which clearly shows that the appellant had referred the patient to SDMH after having done ERCP in SMS Hospital which is the evidence placed on record. It clearly indicates that appellant had put respondent No. 1 and his family to undergo unwarranted hassles and trauma and that it is unbecoming of a doctor to adopt unfair trade practice on his patients. The State Commission has awarded compensation of Rs. 2.5 lakh against the appellant to be paid to the respondent No. 1 after it came to the right conclusion that there is clear deficiency in service on the part of the appellants.

LEARNED Counsel for the appellant submitted that the patient was referred to him for conducting ERCP, which had been done and since this test was carried out in the SMS Hospital which being Government Hospital, no amount was paid by or on behalf of the patient. On the same day a person accompanying the patient Shri Duli Chand visited appellant''s residence and requested him to give a gist of the report because detailed report was not supplied to the patient by the hospital. The appellant advised general prescription, which was not related to treatment of cancer. The appellant, however, told the person to bring the patient in one month time for further evaluation and he also mentioned that there is likelihood of pancreatic cancer and that the patient should be careful as regards further diagnosis and treatment. The same person visited him on 5.7.1993 but he was not accompanying the patient. The appellant wrote on a slip to continue the prescription already given but advised that the patient should be brought for further evaluation. The patient, Mr. Duli Chand, or the other person concerned with him did not return to the appellant after 5.7.1993. It is submitted by the learned Counsel for the appellant that no charges were paid by the respondent No. 1 to him. It is submitted that he has neither referred nor conducted any ERCP in SDMH. He categorically submitted and also stated in his interrogatories that Duli Chand was never admitted by him in SDMH. He submitted that there is no definite evidence to prove his allegation. It is contended that the documents that SDMH has presented don''t show any other information except the name of the patient and a token amount being paid.

MEDICAL Superintendent in his reply submitted the following: "(a) One Mr. Duli Chand aged 50 years, father''s name not known, cast not known, paid Rs. 250 for ERCP Screening on 8.6.1993, as per X -Ray Deptt. Register and requisition slip.

(c) ERCP Screening was conducted.

(d) Requisition slip on which screening observation are entered has no such report.

(g) (i) SMS Hospital -Not Known

(ii) S.D.M. Hospital (1993) -ERCP Screening Rs. 250 Film cost extra"

THE above statement clearly shows that it was one Mr. Duli Chand who was aged 50 years whereas the patient in question is of 75 years and no other evidence has been produced to show that it was the same Duli Chand in question. Without giving the father''s name and any other documentation, this allegation is being wrongly accepted by the State Commission without any evidence. As per the Hand Writing Expert, Mr. Anil Kumar Kutejia''s opinion who has opined that the disputed signatures marked as Q -1 to Q -7 has not been written by the same person, Mr. Atar Singh who has marked his signatures as S -1 to S -7. Mere perusal of the documents itself reveal that the respondent No. 1 has cleverly documented and created a record which cannot be relied upon considering the record itself is made of wrong, fraudulent and forged documents.

LEARNED Counsel for the appellant submitted that; firstly, the patient was brought to him for doing ERGP test which was done and there is no deficiency in service. Secondly, he never took any money from him because it was a Government hospital, and that the allegation of Rs. 4,000 being paid as charges is incorrect and that there is no evidence to prove the same. Thirdly, the relative of the patient came to the house and asked for a detailed certificate and although the appellant had stated in the written statement in the State Commission, it is argued here that he was urged to write a report in a manner where the patient could get two months leave and some financial support from the department in which he works. Keeping the respondent''s request in view, he had given another similar report but not for any money or to take any undue advantage. Fourthly, the fact that he has given treatment only for jaundice, that too basic multivitamin, etc., and no treatment was suggested for cancer clearly shows that he was only suggesting that the patient should be looked after carefully and he should be cautious that cancer should not develop. If he truly believed that the patient was suffering from cancer he would have immediately advised him to rush to go for cancer treatment, which he did not do. It is crystal clear that this report has been made at the behest of patient''s relative who had visited him on 8.6.1993. Fifthly, the respondent No. 1 has filed this complaint himself where the actual patient, Mr. Duli Chand, respondent''s father, could have filed it himself. It is Mr. Atar Singh, respondent No. 1, who fraudulently planned the entire allegations by creating an opinion that Mr. Duli Chand was taken to SDMH by showing some record notings of the SDMH Hospital where the details of the patient itself were wrongly done, i.e., 50 years'' patient was equated with the 75 years'' old father of the respondent No. 1 and further no report of SDMH was produced because the hospital itself has also mentioned that the report was not given. Sixthly, the respondent No. 1 requested him to give a report just to facilitate him and the report was given not with any conclusive remarks but in an advisory manner to help him to get sufficient help from the Government for his leave and for sufficient financial help from the Government. This cannot be construed as medical negligence. Seventhly, discharge slip of the City Clinic where the prostate surgery was conducted does not show record of any appropriate documents stating that the patient was suffering from cancer and that it was wrongly observed by the earlier reports given by the appellants. The City Clinic had clearly mentioned at the stage of admission and at the stage of discharge as to what was the problem the patient came with to the hospital and the report, which have been shown to the doctor before conducting the surgery. Lastly, no evidence has been produced to call for the SDMH authorities who have not been cross -examined to prove the point that the same patient was admitted in the hospital. The entire picture and story is being cleverly concocted by the respondent No. 1 who is working in the police department, who decided to harass the appellant with only one interest, that is, extortion. With this above submission, learned Counsel for the appellant submitted that the appeal should be allowed and complaint should be dismissed with heavy costs.

WE heard both the parties, perused the record, affidavits, interrogatories and cross -examinations on record and order of the State Commission. In our opinion, respondent No. 1 did not prove any medical negligence or deficiency in service on the part of the appellant. We agree with the submissions made by the learned Counsel for the appellant that mere cautionary advice cannot be construed as negligence. In view of the fact that the patient was of 75 years age, the appellants had cautioned him that there could be a chance of cancer but treatment was not given nor was any urgency of treatment shown by the appellant. The patient was repeatedly advised to come for further revaluation but he never came back. Strangely, some unknown person, without name, which respondent No. 1 has not disclosed, kept coming to the appellant initially for the report on 8.6.1993 and thereafter on 5.7.1993 but Duli Chand never came on both the occasions. To allege negligence on this ground is too remote to consider it as negligence. The allegation that the appellant has received Rs. 4,000 has not been proved and also no documents were produced to prove that the patient was admitted by appellant to SDMH is the same person because the record shows different details of the age of the patient and there is a huge difference of 25 years for us to accept it. In our opinion, the complaint filed by the patient''s son on the ground that he was suffering from depression, etc., has also not been proved. The Hand Writing Expert''s report also showed that there is variation in the signatures of the respondent No. 1 which has cleverly been explained by the respondent that in the number of years at different times the signature varies is unacceptable to us. In our view, this complaint has been filed by the son of the patient in a tactful manner to extract some money/compensation from the appellant. The complainant/respondent No. 1 failed to establish or disclose any act or omission on the part of the appellant that could constitute negligence or deficiency in service. The allegations made by the respondent No. 1 on the part of the appellant are false, baseless and misconceived. The patient received treatment in accordance with known standards of medical practice. The Hon''ble Supreme Court of India in their judgment reported as III (2005) CPJ 9 (SC)=VI (2005) SLT 1=122 (2005) DLT 83 (SC)=III (2005) CCR 9 (SC)=(2005) 6 SCC 1, Jacob Mathew v. State of Punjab and Anr., held as under: "A professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practises. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence."

We have placed reliance on the judgment reported as AIR 1975 Bom. 306, Philips India Ltd. v. Kunju Punnu and Anr., whereby it is held that principles of law of medical negligence should be based on correct principles and not on the basis of the conjectures and surmises and irrelevant considerations and misunderstanding the evidence on record. The relevant portion is extracted as hereunder: "Courts should be careful in censuring professional men like doctors. In the absence of clear and satisfactory evidence of negligence from which the only probable inference is one of negligence, it would be wrong to censure doctors who belong to a learned profession and who are ordinarily expected to maintain high standards of professional conduct in dealing with their patients."

WE do not see any negligence/deficiency in service on the part of the appellant and the evidence as alleged by the respondent No. 1 has not been proved after perusing the record.

IN view of the above discussion we find merit in this appeal and allow the same. The order of the State Commission is set aside and complaint is dismissed.

THERE shall be no order as to costs. Appeal allowed.