w w w . L a w y e r S e r v i c e s . i n



B. Venkateswara Reddy & Another v/s M/s Kamineni Hospitals Rep. by its Managing Director & Others


Company & Directors' Information:- KAMINENI HOSPITALS PRIVATE LTD. [Active] CIN = U85110TG1989PTC009802

Company & Directors' Information:- S V S HOSPITALS PRIVATE LIMITED [Active] CIN = U85110TG2007PTC052534

Company & Directors' Information:- D D HOSPITALS PRIVATE LIMITED [Active] CIN = U85110TN2009PTC073765

Company & Directors' Information:- A AND E HOSPITALS PRIVATE LIMITED [Active] CIN = U85110KL2003PTC016562

Company & Directors' Information:- R R HOSPITALS PRIVATE LIMITED [Active] CIN = U85100HR2011PTC042705

Company & Directors' Information:- K P S HOSPITALS PRIVATE LIMITED [Active] CIN = U85110TZ1994PTC004918

Company & Directors' Information:- B R S HOSPITALS PRIVATE LIMITED [Active] CIN = U85110TN1988PTC016237

Company & Directors' Information:- V H M HOSPITALS PRIVATE LIMITED [Active] CIN = U85110TN2009PTC073497

Company & Directors' Information:- D B R HOSPITALS PRIVATE LIMITED [Active] CIN = U85110TG2003PTC041648

Company & Directors' Information:- S M R HOSPITALS PVT LTD [Strike Off] CIN = U85110DL2005PTC143152

Company & Directors' Information:- M S R HOSPITALS PRIVATE LIMITED [Active] CIN = U85110AP1994PTC017731

Company & Directors' Information:- M M HOSPITALS PRIVATE LIMITED [Under Process of Striking Off] CIN = U85110UP1993PTC015371

Company & Directors' Information:- K C HOSPITALS PRIVATE LIMITED [Strike Off] CIN = U85110PB2012PTC035880

Company & Directors' Information:- B M HOSPITALS PRIVATE LIMITED [Active] CIN = U85110TN2005PTC058062

Company & Directors' Information:- S A HOSPITALS LIMITED [Strike Off] CIN = U85110MH2002PLC136697

Company & Directors' Information:- M. B. HOSPITALS PRIVATE LIMITED [Active] CIN = U85100HR2010PTC041489

Company & Directors' Information:- M G M I HOSPITALS (INDIA) PRIVATE LIMITED [Active] CIN = U85195KA2010PTC052058

Company & Directors' Information:- M AND D HOSPITALS PRIVATE LIMITED [Active] CIN = U85110DL2002PTC117618

Company & Directors' Information:- M. R. HOSPITALS PRIVATE LIMITED [Strike Off] CIN = U85110UP1995PTC018165

Company & Directors' Information:- S P HOSPITALS PVT LTD [Strike Off] CIN = U85110HP1992PTC012651

Company & Directors' Information:- V K R HOSPITALS PRIVATE LIMITED [Strike Off] CIN = U85110TG2011PTC075009

Company & Directors' Information:- V P HOSPITALS PRIVATE LIMITED [Active] CIN = U85110DL2011PTC220548

Company & Directors' Information:- G S HOSPITALS PRIVATE LIMITED [Active] CIN = U85100AP2014PTC094902

    F.A.No.127 of 2013 against C.C.No. 84 of 2005 District Forum, Ranga Reddy District

    Decided On, 25 October 2013

    At, Andhra Pradesh State Consumer Disputes Redressal Commission Hyderabad

    By, THE HONOURABLE MRS. M. SHREESHA
    By, INCHARGE PRESIDENT & THE HONOURABLE MR. T. ASHOK KUMAR
    By, MEMBER

    For the Appellants: M/s. M.V. Suresh, Advocate. For the Respondents: R1 & R2, Srinivas Rao Pachwa, R3, Notice, R4, Smt. S.N. Padmini, Advocates.



Judgment Text

(Smt. M. Shreesha, I/C. President)

Aggrieved by the order in C.C.No.84/2005 on the file of District Forum, Ranga Reddy District, the complainants preferred this appeal.

The brief facts as set out in the complaint are that the complainants approached the opposite party hospital for treatment of their aged father for his illness as outpatient and were allotted OP No.20030600024 on 23-6-2003 and their father was advised to undergo necessary tests on the same day and on consecutive day also. The complainants submit that several tests like x-ray, Endoscopy, Ultrasonography, abdomen (male) Radiologist, diagnosis tests, CT Abdomen, Rectal I.V.Contrast, Gastroentrology (colonoscopy) etc., The complainant submitted that on 25th June, 2003, he discussed with opposite party No.3 but opposite party No.3 could not arrive any conclusion regarding the patient’s real problem even after conducting several tests in past 2 days. The complainant submitted that opposite party No.3 assured that there is no seriousness to the patient and it can be treated with chemotherapy or Radiotherapy rather than a surgery. The complainant submitted opposite party No.3 created false hopes and did not reveal the condition of the patient but on 26-6-2003 changed his version and advised to go for surgery as the condition of the patient was not normal. The complainant submitted that opposite party No.3 demanded Rs.70,000/- for treating their father and as per the advice of the opposite parties, the complainant got admitted their father as inpatient on 30-6-2003 and their father was subjected to several clinical tests besides several pathological tests and also informed that the patient would require huge quantity of blood at the time of operation which was scheduled to be conducted on 02-7-2003 and accordingly the complainants arranged the blood. The complainants submit that after the operation, the patient was kept in Acute Medical care unit and no one was allowed to see the patient. The complainants submit that opposite party No.2 expressed his doubt about the possibilities of some other problems like leakages in stomach while sending the patient into Acute Medical care unit but this was not explained properly and the complainant was given false hopes. The complainant submits that because of different versions, he was in illusion that the surgery was done and even then the opposite parties were in dilemma regarding the final diagnosis whether it was TUBERCULOSIS OR CROHNS DISEASE and informed the complainant that they conducted operation to the patient for CARCINOMA ASSENDINGCOLON PERITONITIS. The complainant submitted that he has a serious doubt that the patient expired on 07-7-2003 at about 8.30 p.m. i.e. on 5th post operative day but the discharge summary of the patient reveals the date of operation as 05-7-2003.

The complainant submits that the patient’s condition on the first and second post operative days was normal and on 3rd post operative day, the opposite parties revealed that there was a leak from the ANASTOMATIC site causing secondary peritonitis and septicaemia was suspected. The complainant submits that this condition of the patient was only due to the acute and gross negligence of the opposite parties in rendering service to the patient. Simultaneously the patient was taken for REXPLORATION and the observation was 1 lts of foul smelling straw coloured fluid in the peritoneal cavity and this is developed because of infection while the surgery was done and there is no proper and hygienic mechanism observed. The complainants submit that inspite of several tests and clear findings about the diagnosis as carcinoma right colon, the opposite parties have not taken any consultation regarding radiotherapy usefulness to the patient and completely ignored the age factor of the patient and suggested a surgery. The complainants submit that on the 3rd post operative day, the opposite parties suspected secondary peritonitis and septicaemia and at that stage, Re-exploration would not be advisable under deterioratory stage of the patient and also did not give proper antibiotics to control seriousness. The complainant submitted that the patient should have been provided an attendant which was not done and the patient died, the complainants were not explained about his condition and the opposite parties also failed to furnish the medical bills and surgery charges to avail medical reimbursement and that they had spent Rs.5,00,000/-. Hence the complaint for a direction to the opposite parties to pay Rs.3,00,000/- towards compensation, Rs.2,00,000/- for mental agony together with costs.

Opposite parties 1 and 2 filed counter resisting the complaint and denying any negligence on their part in treating the complainant’s father. Opposite parties 1 and 2 admitted that the complainant’s father was admitted in their hospital as inpatient on 30-6-2003 on the advice of opposite party No.3 and also admitted that several clinical tests besides pathological tests were done but denied that after the surgery, the patient was kept in Acute Medical Care Unit and no one was allowed to see the patient. Opposite parties 1 and 2 submitted that after surgery, the patient was shown to the attendants and explained in detail about the condition of the patient, the operation that was performed and the possible complications and prognosis and everyday one or two attendants were allowed to see the patient in the post operative unit. Opposite party No.3 diagnosed the patient to be suffering from carcinoma and conducted colonoscopy to confirm the same and obtained the Colonoscopic biopsy report before advising admission and surgical consultation and as such the allegations of the complaints are baseless. Opposite parties denied that they gave different versions and created false hopes and stated that the diagnosis was confirmed on 27-6-2005 itself by the Colonoscopic biopsy and on the 3rd post operative day foul smelling fluid discharged from the wound was notice and secondary peritonitis was suspected but denied that this was due to infection because of surgery and improper hygienic conditions. Opposite parties also denied that on 3rd post operative day when they observed secondary peritonitis ad septicaemia, Re-exploration would not be advisable but highly recommended that Re-exploration is the most appropriate procedure under those circumstances and denied that for septicaemia proper antibiotics were not used to control the seriousness and denied that they created a heavy financial loss to the complainants. Opposite parties 1 and 2 further submitted that the Preliminary investigations revealed that the patient had episode of Coronary artery Disease in 1995 and diagnosed as unstable angina and since then was in medication and the patient was a known diabetic and he was examined by opposite party No.2 and his team on 30-6-2003 and 01-7-2003 and necessary investigations were done which revealed the patient was suffering from cancer of the colon namely ‘Carcinoma colon’ and low Haemoglobin levels were noticed and necessary consultations were done with Cardiologist, Anaesthesiologist, Endocrinologist and blood transfusion were given to correct his low Haemoglobin levels and as per the protocol, all tumour causes are discussed in the tumour board on 01-7-2003 and after a thorough evaluation of the patient and the available records, the members of Tumour Board discussed the case thoroughly taking into consideration the age of the patient, the clinical condition, size of the tumour and all other risk factors and decided surgical requirement of the tumour. Accordingly the same was informed to the attendants and also explained about the pros and cons, nature of the disease, treatment that was planned, condition of the patient, surgical procedure that was going to be performed and the known possible complications that may arise in the course of treatment and written informed consent was obtained on 02-7-2003.

Opposite party No.2 and his team under general anaesthesia performed the surgery i.e. Midline Laparatamy under general anaesthesia on 02-7-2013 and at the time of surgery, it was noticed that the tumour was involving the Hepatic flexure and proximal 1/3 of the Transverse colon and it was a large tumour and its size was approximately 14 x 10 cm. Right Hemicolectomy was done resecting upto promixal 2/3rd transverse colony ad the entire small bowel leaving proximal 15 cm of Jejum was also resected as the tumour was involving the superior mesenteric vascular pedicle. Jejunocolic Anastomosis was performed and after the surgery, the patient was shifted to Intensive Surgical care unit and put on ventilation. Opposite party No.2 submitted that the patient was shown to the attendants and also explained in detail about the condition of the patient and operation performed, the possible complications that can occur and the prognosis and also have given appropriate antibiotics during the surgery along with other supportive treatments like blood transfusion, F.F.Ps., I.V.fluids, parenteral nutrition and analagestics Inj. Dobutamine and Inj.Noradrenaline were given and in the post operative ward, the patient was closely monitored and his progress was recorded from time to time. All appropriate treatment was given and detailed records of the progress as well as treatment was maintained and the patient was weaned off from the ventilator support on the morning of 03-7-2003 but intensive care treatment continued and on 05-7-2003 foul smell emanated from the wound and secondary peritonitis was suspected and the patient was taken up re-exploration on the same day after explaining to the patient’s attendants about his condition and obtaining consent from the son of the patient.

At the time of second surgery which was done on 05-7-2003 at 8.20 p.m. about 1 litres of purulent fluid was found in the peritoneal cavity and after thorough exploration, peritoneal lavage was given with 6 litres of warm saline and abdomen was closed leaving 2 drains on either side. In the post operative ward, the patient was put on ventilation and appropriate antibiotics and other supportive measures were continued and the treatment was modified accordingly to the need and on the 5th post operative day, inspite of intensive care treatment and other supportive measures, the patent’s condition deteriorated despite increasing doses of ionotropic support and at about 7.30 pm. the patient developed Cardiac arrest, Cardiopulmonary Resuscitation was attempted but unfortunately the patient could not be revived and he was declared dead at 8.20 p.m. on 07-7-2003. Opposite party No.2 submitted that Carcinoma Colon was confirmed by opposite party No.3 and there was no confusion regarding the diagnosis at any stage on the inpatient treatment from 30-6-2003 and there was no negligence during the treatment period and they are not liable to pay the amounts prayed for by the complainants. Opposite party No.2 submitted that he is well qualified surgical Gastroenterologist and got immense experience of 22 years and trained in leading Medical institutes in the country and that he was covered by Professional Indemnity Policy by New India Assurance Company Ltd., and prayed for dismissal of the complaint with costs.

Opposite party No.3 filed counter resisting the complaint. He admitted that the complainants’ father approached opposite party No.1 hospital as outpatient with complaints of altered bowel habits, dyspepsia, anorexia and weight loss and underwent tests such as ultrasonography, CT scan, abdomen colonoscopy etc. and the report of colonoscopy revealed that there was narrowing and growth in the colon which is suggestive of colonic cancer and basing on the report of colonoscopy, they cannot confirm cancer as such biopsy was performed on 24-6-2003 and the report came on 26-6-2003 and immediately the patient and his attendants were informed on 27-6-2003 about the possibility of cancer and denied that the complainants discussed with him on 25-6-2003 and he could not arrive at a conclusion regarding the patient’s real problem. Opposite party No.3 also denied the allegation that he assured the complainants that there was no seriousness to the patient and can be treated either with chemotherapy or Radiotherapy rather than surgery but submitted that after receiving biopsy report, it was informed to the complainants that their father required surgery. The U/s Abdomen and CT abdomen revealed features suggestive of colonic lesion and colonoscopy was done which revealed circumferential narrowing and polypoidal growth in the ascending and proximal transverse colony and the colonic biopsy revealed well differentiated adenocarcinama hence the said fact was informed to the patient’s attendants and the patient was referred to general surgery department for further management.

Opposite party No.3 stated that he performed his duty with due care and caution and in view of the fact that the patient is aged 63 years and suffering from cancer of colon, he submitted that the mainstay of therapy for colon cancer is surgical and hence he had referred the case to a Surgeon for taking further treatment and the subsequent follow up was done by opposite party No.2 and his team after obtaining consent. Opposite party No.3 denied that he changed his version on 26-6-2003 and demanded Rs.70,000/- for the treatment and advised them that the disease can be treated with chemotherapy or Radiotherapy rather than surgery. Opposite party No.3 submitted that he served the patient in the capacity of Gastroenterologist and in his best ability and with due care and skill, made the diagnosis of cancer colon within three days and correctly referred the patient for further treatment and denied the other allegations and submitted that there is no deficiency in service or negligence on his part and prayed for dismissal of the complaint with costs.

Opposite party No.4 filed counter resisting the complaint. It denied the allegations made in the complaint and also that they are not within its knowledge and that opposite parties 1 to 3 have not shown any responsibility and there is deficiency in service on their part in rendering their duty. It admitted that it issued Professional Indemnity policy and prayed for dismissal of the complaint.

Based on the evidence adduced i.e. Exs.A1 to A28 and B1 to B7, affidavits of the complainants and opposite party No.3, the District Forum dismissed the complaint.

Aggrieved by the said order, the complainants preferred this appeal.

The brief point that falls for consideration is whether there is any deficiency in service on behalf of the opposite parties and if the complainant is entitled to the relief prayed for in the complaint?

The learned counsel for the appellants/complainants submitted that the second opposite party is not a qualified surgical oncologist but a qualified surgeon and that the opposite party had given two discharge summaries. It is the complainants’ case that their father approached opposite party No.1 hospital on 23-6-2003 and was advised tests like x-ray, ultrasonography, endoscopy, CT scan of the abdomen, rectal IV contrast, colonoscopy and was informed by opposite party No.3 that the patient can be treated with chemotherapy or radiotherapy, but on 26-6-2003 surgery was advised. On the doctor’s advice, the surgery was conducted on 02-7-2003 for carcinoma ascending colon peritonitis, but the patient expired on 07-7-2003. The complainant submits that it was because of a leak in the anastomosis causing secondary peritonitis and that septicaemia was suspected. The patient was taken for re-exploration and 1 litres of foul smelling liquid was found in the peritoneal cavity. The learned counsel for the appellants submitted that septicaemia was not arrested with proper usage of antibiotics and that surgical oncologist was not present but only a surgical Gastroenterologist performed the surgery. The learned counsel also denied that the complainant signed on 02-7-2003 and that the doctor has informed him that the patient was suffering from cancer. He also denies that he is aware about the tumour board proceedings.

We observe from the record that the doctor in his deposition explained clearly that there is no discrepancy in Ex.A1 and that this contains in detail the entire hospital treatment rendered to the patient. It is the complainant’s case that instead of surgery, the doctor should have advised chemotherapy or radiotherapy. It is the opposite parties case that at the time of surgery it was noticed that the tumour was in the hepatic flexure and proximal 1/3rd of the transverse colon. It was a large tumour and its size approximately was 14 x 10 cms. Ex.A1 is the death summary dated 07-7-2003 which evidences that the ultrasound abdomen and CT scan of the abdomen showed colonic lesion. Thereafter a colonoscopy was done and the colonic biopsy revealed a well diffenciated andenocarcinoma. Hemicolectomy was planned and done upto the proximal 2/3 rd of the transverse colon. The tumour excision was continued to resect out all its extensions. After the completion of the radical excision of the tumour, as the ILEO Colonic Anastomosis was being attempted, the small bowel was found to have turned dusky. Resection of the entire small bowel showing signs of Ischemia was done. The patient was put on mechanical ventilation.

It is the complainants’ case that post-operative care was not proper and that septicaemia had set in and proper antibiotics were not given. We observe from the record that the patient was given a combination of three antibiotics viz Inj. Omnatax 1 G IV, Inj Amicacin 500 Mg IV and Inj Metrogyl 500 mgs IV starting at the time of induction of Anaesthesia on the day of the first surgery, followed by administration of Inj Taxim I GIV bd, Inj Amicacin 500 MG IVbd and Inj Metrogyl 500 Mg IV tid. On 06-7-2003, the antibiotic combination was modified by replacing Inj. Taxim 1 g with Inj Fortum 2g IV stat followed by 1g IV bd and Inj Zanocin 200 mg IV bd was added. The aforementioned treatment rendered proves that sufficient antibiotic care was given to arrest infections post operatively. Ex.A1 shows, the pre-operative and post-operative care as follows:

Consultants: Dr.G.Satyanarayana/Dr.G.Laxmana Sastry

Principal Diagnosis:CARCINOMA ASCENDING COLON

PERITONITIS + SEPTICEMIC SHOCK

CLINICAL SUMMARY' This 63 year gentleman was initially admitted in Gastroenterology with C/o altered bowel habits, dyspepsis, anorexia and weight loss. The patient was a known diabetic since 1993 and was on OHA. He had an episode of CAD in 1995 diagnosed as unstable angina and was on Ecosprine since then.

On examination, the patient was ill nourished with pallor and pedal odema Abdomen was mildly distendd with vague mass in right upper and lower quadrants of the abdomen. There was no evidence of organamegaly or free fluid clinically. Bowel sounds were present.

U/s Abdomen and CT Abdomen revealed features suggestive of a colonic lesion. Colonoscopy was done which revealed circumferential narrowing and ploypoidal growth in the ascending and proximal tranverse colon. Colonic biopsy revealed well diffentiated endenocarcinoma. The patient was referred to General Surgery Department for further management. Hemicolectomy was planned.

Preoperative Investigations:

1. Blood Group and Type –'O' +ve

2. HB-8.2gm%

3. TLC-11,000/cumm

4. DC-N85%, L-13%

5. Platelet count-Adequate

6. RBS-80 mg%

7. Bl.Urea-29 mg/dl, Se.Crea-1.0 mg/dl

8. Na+-130 meq/L K+-.3.5 meq/L

9. Bleeding Time -1 min 30 seconds

Clotting time 3 min 30 seconds

10. LFT TB-0.5 mg%

SFPT-37U/L,

ALP-159 U/L

TP 6.6 gm/dl.

Albumin 3.5 gm/dl

Globulin 3.1 gm/dl

A/G 1.1

11. PT test-17.0 sec.

PT control-14.0 sec

INR value 1.22

APTT test-46.0 sec

APTT control 31.0

12. CA-19.9-31.20/ml (39.0 U/ML)

CEA-5.39 MG/ML (3.0 MG/ML)

13. CXR-Negative study.

Endocrinology consultation was taken for the management of diabetic mellitus. OHA was stopped and the patient was put on insulin and 6th hrly monitoring of RBS was advised.

Cardiology consultation was sought in view of his history of CAD. 2D Echo revealed normal chambers and valves and good LV function. Moderate Perioperative risk was opined. Ecosprine was advised to be stopped atleast 2 days before surgery. Preoperatively Hb level was improved with 2 units packed cell transfusion. The patient was posted for hemicolectomy (on 3rd of admission) with 2 units of blood kept ready. Preoperatively the findings were

1. A tumor involving the hepatic flexure and the promixal 1/3rd of the colon

2. The tumor infiltrating into duodenal wall and transverse mesocolon and engulfing the

Superior mesenteric vascular pedicle.

Hemicolectomy was done resecting up to the proximal 2/3rd of the transverse colon The tumor excision was continued to resect out all its extensions. After the completion of the radical excision of the tumor, as the ileo colonic anastomosis was being attempted, the small bowel was found to have turned dusky. Ischemia of the small bowel resulting from an injury to the vascular pedicle following extensive dissection was suspected. Superior mesenteric vessels were secured and the resection of the entire small bowel showing the signs of ischemia was done. About 20 cm of the proximal bowel was left which was apparently healthy.Jejuno colonic anastomosis was completed.

The patient was put on mechanical ventilation and noradrenalin support. 2 units whole blood, 2 units packed cells and 2 units FFPS were transfused that day.

1st POD

The patient was conscious and coherent and haemodynamically stable. His ABG was satisfactory. He was weaned off of the ventilator and ionotropic support. His Hb% was satisfactory at 10.1 gm%. His TB was found to have levated to 2.9 mg% and TP 4.1 gm% with albumin level of 2.5 mg%. 20% albumin infusion was given.

2nd POD

The patient was hemodynamically stable. TPN was initiated. His HB level was found to have dropped to 8.3 gm%. Despite the albumin transfusions the previous day, the total protein and albumin levels were still low. Blood transfusion and 20% albumin infusion were given. Insulin infusion was adjusted according to hourly RBS levels.

3rd POD

The patient was incoherent and restless. He pulled of his ryle’s tube and central line. His BP was found to be dropping. ABG revealed acidosis. There was a foul swelling discharge from the wound. His TC was 13,000 with DC-of 95% neutrophilia. A leak from the anastamotic site causing secondary peritonitis and septicaemia was suspected. After obtaining consent from the attendants, the patient was taken for rexploration. Peroperatively the findings were:

1. About 1 Lts of foul smelling straw coloured fluid in the peritoneal cavity.

2. Intact anastomotic site

3. No evidence of leak from any other site in the GIT.

The fluid was sucked out, peritoneal larvage was given with about 6 Lts. of warm saline and abdomen was closed with drains. Alternations in the antibiotic coverage was done including chane from cefotaxime to ceftzidime and addition of oflaxacin. The patient was already on amikacin and metrogyl. The patient was put on mechanical ventilation and dopamine and noradrenaline support. TPN and insulin infusion were continued.

4th POD

The patient was continued on ventilator and ionotropic supports. His platelet count was found to jhave fallen to 36,000. His TB was 3.1 TP was 3.3 mg% with albumin level of 1.3 gm% PT was 28.2 seconds and APTT was 70.0 seconds with INR of 2.14. Olatelet concentrates and FFPS wer transfused. TPN and insulin infusion were continued.

5th POD:

The hemodynamic status of the patient was found to be deteriorating for which iontropic support was increased. ABG was suggestive of acute lung injury. LFT was found to be further deteriorated.

In the evening of the same day, haemodynamically the patient started deteriorating rapidly, despite the increasing doses of ionotropic support. At about 7.30 p.m, the patient developed cardiac arrest. CPCR was attempted. But the patient could not be revived. The patient was declared expired at 8.20 pm.

The contention of the complainant that two discharge summaries were given has not been pleaded by the complainant in the main complaint but we also observe that there is no essential difference between the two documents except in the description of the operation. The complainant has also not established that the very procedure conducted during any of these two operations was against medical procedure. The burden of proof is on the complainant to establish as to what line of treatment in the aforementioned procedure was wrong or was not up to standards of medical parlance. The Apex court had repeatedly observed that negligence can be construed only when there is gross variation from the standards of normal medical parlance. The complainants has not filed any documentary evidence or expert opinion to counter that the treatment rendered to the 63 year old cancer patient by the opposite parties was wrong and that it deviated from the standards of normal medical parlance.

With reference to duties of the doctors to the patients, the National Commission in TARUN THAKORE v. Dr.NOSHIR M.SHROFF in O.P.No.215/2000 dated 24-9-2002 reported in Landmark judgements on Consumer Protection P-410 held as follows:

'The duties which a doctor owes to his patient are clear. A person who holds himself out ready to give medical advise and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person when consulted by a patient owes him certain duties, viz., a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give or a duty of care in the administration of that treatment. A breach of any of those duties gives a right of action for negligence to the patient. The practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires'

In INDIAN MEDICAL ASSN. v. V.P.SHANTHA (1995) 6 SCC 651 the court approved a passage from Jackson and Powell on Professional Negligence and held that'

'The approach of the courts is to require that professional men should possess a certain minimum degree of competence and that they should exercise reasonable care in the discharge of their duties. In general, a professional man owns to his client a duty in tort as well as in contract to exercise reasonable care in giving advise or performing services'.

Supreme Court then opined as under:

'The skill of medical practitioner 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 the doctor to be guilty of negligence'.

In Mc.Nair J. in Bolam v. Friern Hospital Management Committee (1957) 2 All ER 118, 121 now widely known as the 'Bolam test' it was held as under:

'But where you get a situation which involves the use of some special skill or competence, then the test whether there has been negligence or not is not the test of the man on the Calpham Omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill at the risk of being found negligent… it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art.'

His Lordship agreed with the counsel’s statement that 'negligence means failure to act in accordance with the standards of reasonably competent medical men at the time' was a perfectly accurate statement of the law, provided that it was remembered that there may be one or more perfectly proper standards::

'A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art…. Putting it the other way round, a doctor is not negligent , if he is acting in accordance with such a practice, merely because there is a body of opinion that takes a contrary view.'

The preliminary tests conducted at the time of admission itself showed symptoms of carcinoma. The patient was a high risk patient being 63 years old and admittedly suffered from unstable angina, anaemia and diabetes. We rely on the judgment of the National Commission inSHANTABEN MULJIBHAI PATEL AND OTHERS v. BREACH CANDY HOSPITAL & RESEARCH CENTRE reported in 2005 CTJ 510 (CP) NCDRC, in which the National Commission held that merely because a high risk patient died in the hospital following a procedure, it cannot be construed as medical negligence unless it is proved that the doctors had not acted with reasonable skill which in the instant case, the complainant has not proved by way of any documentary evidence or medical literature that the doctors have not acted with reasonable skill or expertise.

The contention of the complainant that OP 3 could not arrive at a conclusion regarding the patient’s problem is unsustainable in the light of the CT scan and ultrasound scan followed by the biopsy which clearly revealed colonic cancer. Moreover the complainant submits that OP 3 stated that it can be treated with chemotherapy and radiot

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herapy which itself evidences that the complainant was aware that the patient had cancer. It is also the complainant’s case that instead of surgery, the patient should have been treated with chemotherapy and radiotherapy. We rely on the decision of the decision of the Supreme Court in KusumSharma V. Batra Hospitalreported in 2010 III SCC 480 in which the Supreme court held as follows: ‘A doctor cannot be held liable for negligence merely because a better alternative course or method of treatment was available or because a more skilled doctor would not have chosen to follow the same practice or procedure which the accused doctor has followed’. It is also the case of the complainant that the leak from the anastomotic site caused secondary peritonitis. This was noticed by the doctors themselves and therefore the need for re-exploration of the abdomen was explained and an informed consent was taken which is evidenced in the treatment record. It is the case of the complainant that it was not his signature but that of one C.Padmavathi. We observe from the consent form which is filed as part of the record that it also contains the patient’s signature which is sufficient as per the judgement of the Apex court in I (2008) CPJ 56 (SC) between SAMIRA KOHLI v. PRABHA MANCHANDA (DR.) & ANR. in which the Apex court held that unless the patient is in a comatose state where he is not able to sign a consent form only then an attendant’s signature is necessary. In the instant case the patient himself has signed the consent form and therefore the question of not taking the consent does not arise. At the time of surgery, it was recorded that Anastomosis was intact and there is no evidence of leak from any other part of GIT. It is the opposite parties case that it was discussed in the tumour Board meeting on 01-7-2003 and the consensus of opinion was that the first line of management should be surgery followed by radiotherapy and chemotherapy as may be deemed necessary. It is pertinent to note that the complainant had made a complaint to A.P. Medical Council and A.P. Medical Council in their report dated 07-12-2010 evidenced under Ex.B1 has opined that the cause of death was the result of peritonitis which developed as a known complication of the extensive bisection and resection that is required for the surgical treatment of the carcinoma. Since A.P. Medical council after having gone through the affidavits filed by Dr.S.Radha, Pathologist, Dr.G.Lakshmana Sastry and Dr.B.Ravi Shankar, Medical Gastroenterologist noted that the allegations made by the complainant are not proved and therefore the decision referred to by the complainant in (2009) 6 SCC in NIMS v. PRASANTH S.DHANANKA AND OTHERS is not relevant to the facts of the instant case. Taking into consideration the case sheet which evidences the line of treatment rendered to the patient, Ex.B1 the medical council report which shows there is no negligence and also the fact that the complainant has not countered that the treatment rendered by the opposite parties is not in accordance with practices of normal medical parlance or is not conducive with reasonable degree of skill, we hold that negligence against the opposite parties was not established and hence the District Forum has rightly dismissed the complaint. In the result this appeal fails and is accordingly dismissed. No costs.
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