IMPORTANT POINTS
(1) Primary treatment - 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.
(2) Timely Treatment - The OP was liable for non-detection of that Osteosarcoma, non-reference of the patient to an expert; absence of proper and timely treatment.

ORDER

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.

2. 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.

3. 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.

4. 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.

5. Being aggrieved, the OP filed the instant First Appeal.

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

7. 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.

8. 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 committ