advantageconsumer.com Consumer Protection Council, Rourkela

Important judgements passed by the Consumer Courts An error of judgment would not be construed as a medical negligence NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI                     FIRST APPEAL NO. 358 OF 2008                     (Against the Order dated 17/03/2008 in Complaint No. 134/2002 of the State Commission Andhra Pradesh)                      NALLAM CHANDRA SEKHAR REDDY R/o Yerrasanipalle Tambalapalli Mandal Chitoor Andhra Pradesh                                                      ...........Appellant(s)                                    Versus     DR. DESAI THIPPA REDDY Desai Hospital Near RTC Bus Stand Mandapalle Chitoor Andhra Pradesh                                                     ...........Respondent(s) BEFORE:          HON'BLE MR. DR. S.M. KANTIKAR, PRESIDING MEMBER Dated : 03 Mar 2017 ORDER 1. The instant first appeal filed by the appellant-complainant under Section 19 of the Consumer Protection Act, 1986 is against the impugned order dated 17.3.2008 passed in Consumer Complaint No. 134 of 2002 whereby the State Commission dismissed the complaint. 2.       The brief facts relevant for the disposal of the appeal are that the complainant’s son, Nalla Nagendra Kumar, aged about 21 years, (since deceased, herein after referred as the ‘patient’), was operated by Dr. Desai Thippa Reddy, (OP) for appendicitis on 8.10.2000. Patient did not get sufficient relief.  The complainant again contacted OP On 17.10.2000 and 25.10.2000, for abdominal pain of his son.  The OP prescribed medicines but there was no avail.  Therefore, on 8.11.2000, patient was taken to Aragonda Apollo Hospital wherein he was investigated and told that the operation for appendicitis ought not to have been done without diagnosing the actual disease.   On 13.11.2000, the complainant took his son to Devaraj Urs. Medical College at Kolar, Karnataka wherein he was diagnosed of cancer of liver i.e. Hepato Cellular Carcinoma (HCC).  He underwent few cycles of Chemotherapy and during treatment, patient died on 5.7.2001. 3.       Therefore, alleging the gross medical negligence which caused untimely death of his son, the complainant filed a complaint before the State Commission against the OP and prayed for Rs. 13 lakhs towards compensation and Rs. 5,000/- towards litigation costs. 4.       The OP resisted the complaint and submitted that the patient was suffering from acute appendicitis, therefore, operation was performed.  There is no relation between liver cancer and appendicitis, both are separate diseases.  There was no negligence during the treatment of the patient. 5.       After considering the pleadings, evidence and medical record, the State Commission dismissed the complaint. 6.       Aggrieved by the impugned order, the complainant preferred first appeal before this Commission. 7.       Heard the learned counsel for the parties.   Mr. K. Maruthi Rao, learned counsel for the complainant-appellant submitted that the patient was suffering from abdominal pain.  The OP performed appendicectomy without confirming the diagnosis.  After operation, patient had persistent pain; therefore, he was taken to Aragonda Apollo Hospital, wherein it was suspected to be a tumour in the liver.  In the instant case, OP initially failed to diagnose the reason for abdominal pain, otherwise he would have avoided the appendicectomy surgery.  Therefore, it was a clear negligence; due to which patient had undergone unnecessary appendicectomy operation. 8.       During argument, a question was posed to the counsel for the appellant that, if the diagnosis of cancer would have made at the first instance, whether there was any cure for the said patient?  The counsel submitted that the life of patient could have been extended for four to five years if proper diagnosis and treatment for cancer was done.   I have perused medical record of OP hospital, Aragonda Appollo Hospital and the Devraj Medical College,Kolar.  The medical record of OP/Desai Hospital, shows that the patient was presented with complaints of sudden pain in abdomen and vomiting.  Clinically, there was guarding in right iliac fossa,   blood total WBC count was 11800.  Thus, the diagnosis was made as Acute appendicitis, then the patient was operated. The postoperative period was uneventful till the discharge from the OP hospital.   9.       There was a gap of one month between the appendicectomy and the diagnosis of tumor in the liver.  On 9.11.2000, the Apollo Hospital performed ultrasound and suspected a mass in liver, which was subsequently on 13.11.2000 investigated at Devaraj Urs. Medical College, Kolar, Karnataka and diagnosed as case of HCC.  Thereafter, patient was put on treatment of Cancer by chemotherapy, but unfortunately he was survived till 5.7.2001. 10.     As per medical literature from Surgical Pathology by Ackerman, in my view, the Appendicitis and HCC, both are totally different entities.  The appendicitis is an infective lesion whereas HCC is a malignant lesion.  The HCC is highly malignant disorder and much fatal. The rate of survival is less than two years, if tumor is of larger size.  As per the medical books on Surgery,  any acute abdominal pain, the surgeon’s first suspicion would be acute appendicitis.  In the instant case, OP is qualified Surgeon (M.S.), he had arrived to the proper diagnosis after clinical and laboratory investigations and operated the patient as a choice of treatment.  Even, the complainant has neither produced any cogent evidence nor any opinion from Aragonda Apollo Hospital or R. L. Jalappa Hospital, that the OP’s appendectomy was wrong.  It should be borne in mind that, in the instant case the child/patient was brought with the complaints of acute abdominal pain, i.e. acute appendicitis as an emergency, performing appendicectomy was not a wrong decision.  No doubt, that the child was subsequently diagnosed with a cancerous tumour in the liver. The death was not due to appendicectomy operation but it was due to fatal malignant tumour. 11.    In my opinion, it was a case of acute abdomen and the failure to diagnose HCC by OP at initial stage was an error of judgment, it would not be construed as a medical negligence. The OP, with his clinical acumen made efforts clinically diagnosed it and performed appendectomy surgery.  Even if we presume that the OP would have diagnosed HCC at the first instance, chance of survival of patient was bleak. I would like to adopt the Loss-of-chance doctrine in this case. The concept was illustrated by an orthopedic malpractice case, Gage v. Morse, 933 S.W.2d 410, in a Missouri court.  In   medical negligence cases, the complainant/patient must show that it was more likely than not that a surgeon’s negligent conduct resulted in injury or death. If there was a negligent failure to diagnose cancer in a timely manner and the patient would have died even with an earlier diagnosis, the law would not allow the patient (while living) or the patient’s legal heirs to collect compensation for damages.  Therefore, under the loss-of-chance doctrine, if a patient lost 20%, 30% or 40% chance of living, that patient or his/her LRs would be compensated, notwithstanding the inability to prove that death would likely have been avoided through earlier diagnosis and treatment. 12.    On the basis of forgoing discussion, I do not find any need to interfere in the impugned order of State Commission; hence the first appeal is dismissed. There shall be no order as to costs.                                                                                                    Top

Consumer Protection Council, Rourkela