Oral Order: (B.N. Rao Nalla, President)
The complaint is filed under section 17 (1)(a)(i) of the Consumer Protection Act, 1986 by the Complainants to direct the opposite parties to pay Rs.75 lakhs towards future earnings of the deceased; to pay Rs.15 lakhs for not providing proper treatment and causing of death; to pay medical expenses of Rs.5,48,081/-, to pay Rs.2 lakhs towards compensation for ill-treatment and costs of Rs.1,00,000/-.
2. The case of the complainants, in brief, is that the deceased S.Vasantha Kumari, wife of complainant no.1 admitted in NIMS for first diagnosis on 14.07.2009 and undergone biopsy. She was diagnosed as CA ovary Advanced. She has undergone chemotherapy for six cycles at NIMS, Hyderabad. She underwent surgery on 27.02.2010 at Indo-American Cancer Institute & Research Centre and discharged in good heath. After that she again underwent chemotherapy for 4 more cycles of Chemotherapy for every 3 weeks at the same Hospital. Subsequently she had undergone medical tests in every three months. While so in the month of June 2011 as the deceased felt inconvenience in her head she consulted opposite party no.2 who is a consultant in opposite party no.1 hospital. The deceased had undergone various tests and found that all the tests reports were normal and advised to consult any physician for head problem. Believing the opposite party no.2 she had not taken anything seriously about her health. Thereafter her health condition was deteriorating day by day and she had been suffering with severe headache and lost control of her legs. She joined in Venus Hospital and undergone CT scan of brain and found some disorder in her brain. For further diagnosis MRI of her brain was taken and found some tumors in her brain and she approached opposite party no.2 and joined in opposite partyno.1 hospital on 14.07.2011. She got operated for her brain tumor on 18.07.2011 by Neuro Surgeon Dr.Pardhasardhi. After the surgery the deceased got unbearable pain in the head and when complained about the same to the opposite party no.2, he came leisurely on usual rounds at 12.50 p.m. and she was shifted again to SICU. The doctor who conducted operation on the deceased had not visited her and not checked her condition and after the complainants came to know that he left for USA for better opportunities. Thereafter the junior of Dr.Parthasaradhi removed some water from her head and she got some relief from it. Vexed with the opposite parties no.1 and 2 she got discharged from opposite party no.1 hospital on 25.07.2011. Again on 02.08.2011 the deceased visited opposite partyno.1 for removal of stitches and Dr.Jaipal Reddy removed stitches and advised CT scan of brain and after the report Dr.Jaipal Reddy prescribed some tablets. Again the deceased due to severe pain in the headache visited Dr.Jaipal Reddy who after testing removed some water from her head. As her condition was deteriorating the deceased joined in the opposite party no.1 hospital in SICU. The deceased was on ventilators for two days. In the meantime the complainants consulted Dr.Manasa Kumar Panigrahi, a senior neurosurgeon of KIMS Hospital for second opinion who after seeing the CT scan reports advised that she can recover on treating for the infection in her lungs. The opposite parties no.1 doctors have not diagnosed about the her condition and showed their inability in treating her. In that helpless condition the deceased was forcibly shifted to KIMS Hospital on 16.09.2011. She again undergone surgery in the KIMS Hospital. The doctors at KIMs Hospital have made brave efforts for her recovery for two weeks but they could not recover her due to her weak immune system and finally she expired on 29.09.2011 at 8.00 pm. The opposite parties no.1 and 2 had not given proper postoperative treatment and no senior neurosurgeon attended her. None of the doctors cared for her condition after the operation. The opposite parties no.1 and 2 committed medical negligence in not taking care of the deceased after post-operative surgery. The deceased died at the tender age of 46 years and she is having 12 years of service and due to her sudden death the family has lost approximately an amount of Rs.70,000/- X 12 = Rs.1,00,80,000/- and hence a compensation of Rs.75 lakhs together with damages of Rs.15 lakhs and costs of Rs.9 lakhs. The complainants got issued legal notice 18.06.2013 to the opposite parties and the opposite parties issued reply on 04.07.2013. Hence, the complaint with reliefs as prayed for in paragraph no.1, supra.
3. The opposite parties no.1 and 2 resisted the case contending that the Omega Hospitals is a division of Hyderabad Institute of Oncology Private Limited and invariably the same has to be made a party to the proceedings for proper adjudication. The non-joinder of necessary parties to the claim and the same is liable for rejection at the initial stage itself. Any claim against the company should also include M/s National Insurance Co,.Ltd., in view of the policy being valid from 15.11.2010 to 14.11.2011 and the complainants may be directed to implead the insurance company as a party to the proceedings. The opposite party no.1 hospital is one of the best hospitals in Oncology and has one of the best well equipment personal with expertise, experience and where all f of cancer patients from India and abroad have benefited from the treatment taken at the hospital. The deceased late Vasantha Kumari was admitted in NIMS in July 2009 and was diagnosed with advanced ovarian cancer. Treatment of chemotherapy was initiated at that stage and since then the said patient was in in and out of Hospitals including 2 cycles of chemotherapy in 2010 with Indo American Cancer Institute and Research Centre. On perusal of the notice would show that the deceased was treated at Venus Hospital, Omni Hospitals, KIMS and NIMS for the same complaint. The patient was brought to the opposite partyno.1 Hospital at a very late stage and by then the situation of the patient had aggravated. The patient was diagnosed with ' Left Cerebellar SOL metastasis'. The cancer in such cases metastasis to the brain from another location in the body thus the ovarian cancer of the patient of the deceased spread to the brain. The patient with brain metastasis have a poor prognosis for cure. This can cause a wide variety of symptoms and more conditions including vertigo, headache, increased intracranial pressure, visual changes and seizures. The deceased complained of headache and seizures which is normal in a patient with the present diagnosis. It is an accepted fact and scientifically admitted aspect that the treatment of brain metastasis is primarily palliative with goals of therapy being prolongation of life, reduction of symptoms. The rate of survival in such patients is poor.
4. The doctors at Venus Hospital did not want to treat the deceased and had recommended the shifting of the patient to Omni Hospital Kothapet. The complainant also admitted that they did not have any confidence in any of the doctors and hence consulted Dr.Mohan Vamsy, the opposite partyno.2. Dr.Jaipal Reddy during the visit of the patient on 02.08.2011 had advised the family members regarding the condition of the patient and requested them to keep him updated about her condition but the complainants were careless and did not comply with the line of treatment and suddenly brought the patient to the hospital on 01.09.2011 in a very critical stage and it was said that they were negligent in the after surgical care of the patient after discharge from the hospital. The opposite partyno.1 and the doctors put her immediately on antibiotics in order to control the infection that has set in during the patients stay at her house. It was also noticed and informed to the complainants that the patients brain fluid had malignant cells, it shows that the cancer had spread and very poor prognosis and till date there has been no treatment at the said stage of cancer and the same was explained to the complainants. Even on 12.09.2011 the complainant was explained about the critical condition of the patient and he has given his consent by signing the necessary papers and accepting the seriousness of the patient in spite of that the complainant got the patient discharged against medical advice on 15.09.2011 from the opposite party no.1 hospital. The doctors in another hospital could not help in the survival of the patient who succumbed to the disease on 29.09.2011 after having been discharged from the opposite party no.1 hospital on 15.09.2011. The figures mentioned by the complainants are highly exaggerated and the same cannot be claimed by way of the complaint. The claim made by the complainants are false and against established medical norms being followed all around the works as there is no deficiency in service rendered by the opposite parties. Therefore, the opposite parties no.1 and 2 prayed for dismissal of the complaint.
5. The opposite party no.3 resisted the case and contended that the complaint is not maintainable either in law or on facts of the case. There was no cause of action for the complainants to file the present complaint against the opposite party no.3 and also that the complaint is barred by limitation as the complaint was filed much after more than 4 years of discharge from the opposite party no.3 hospital. The complaint is also liable o be dismissed for mis-joinder of the opposite party no.3 to the present complaint. The opposite party no.3 is not a proper and necessary party. The complainants have neither made any allegations against the opposite party no.3 nor its doctors in their complaint and in the absence of any allegations of negligence or deficiency in service against opposite partyno.3 or its doctors.
6. The wife of the complainant no.1 was admitted into NIMS Hospital on 14.09.2009 under the Department of Surgical Oncology with the history of abdominal distension for about 25 days gradually increasing low urine output, constipation etc. On examination the patient was conscious, moderate built, malnourished, general condition=fair, afebrile, pulse rate 78/min, BP:110/70. The patient underwent investigation including diagnostic laparoscopy biopsy peritoneal deposits. The intra OP findings as reflected under discharge record of NIMS. Final HPE report shows peritoneal implants (noninvasive) of serious cystic neoplasm of ovary. One cycle of chemotherapy was on 28.07.2009. The patient was advised to come for follow up in SOG OPD after 6 weeks at Room No.213 on Tue/Wed/Fri/SOS. The patient was admitted into Hospital on 14.07.2009 and under went operation on 16.07.2009 and discharged on 28.07.2009. The patient was suffering from Cao very advanced. The complainant no.1 wife was never taken treatment in opposite party no.3 hospital after discharge from NIMS. As per the complaint it is found that the patient took treatment at various other hospitals and there was no role of NIMS in treating her after discharge till the date of death of complainant no.1 wife on 29.09.2011. The NIMS and its employees are covered from the professional indemnity under the insurance policy known as ' Error and Omission – Medical Establishment Policy' and further, the indemnity also applies to claims arising out of bodily injury and/or death of any patient caused by or alleged to have been caused by or in professional service rendered by the Institute or the employees of the institute. Hence, the opposite party no.3 prayed for dismissal of the complaint.
7. The opposite party no.3 filed its additional written version contending that due to oversight the insurance particles in para 11 could not be mentioned and therefore it has been necessitated to file the additional written version. Without prejudice to the contentions raised above, for abundant cautions the NIMS and its employees are covered from the professional indemnity under the insurance policy and the indemnity also applies to claims arising out of bodily injury and/or death of any patient caused by or alleged to have been caused by or in professional service rendered by the institute or the employees of the institute. Based on the said insurance policy, if the institute is held liable to pay any compensation on any account in any claim of whatsoever nature, the said insurance company is alone liable to make the loss good to the institute. Hence, the opposite party no.3 prayed for dismissal of the complaint.
8. The opposite party no.4 filed its written version resisting the case of the complainant and contended that the complaint is not maintainable either in law or on facts. The complainants are not having the locus standi to file the complaint in a summary procedure since there are disputed facts and accordingly the complaint is liable to be dismissed. The complaint requires full-fledged enquiry by way of suit since the complainants are claiming the compensation for an amount of Rs.98,48,081/- under various heads to avoid the court fees before the Civil Court and approached this Commission. The opposite party no.4 issued the Professional Indemnity Policy for doctor i.e., the opposite partyno.2 vide policy bearing NO.551201/46/10/8700000290 valid from 15.11.2010 to 14.11.2011 for a sum insured of Rs.50 lakhs only during the said period of insurance. The opposite party no.4 is liable only as per terms and conditions of the policy in question. The patient approached various hospitals like Venus Hospital, Omni Hospital, KIMS and other hospitals but without making all those Hospitals as parties to the said complaint filed against only opposite parties no.1 to 3 alleging deficiency of service and hence the complaint is liable to be dismissed for non-joinder of necessary parties. The deceased approached NIMS on 14.07.2009 and after conducting the investigations it was diagnosed with advanced ovarian cancer and underwent treatment and admittedly the patient underwent chemotherapy for six cycles at NIMS, Hyderabad in 2009 itself. Further she had undergone treatment at various hospitals. It is after two years of taking the treatment at various hospitals the patient was brought to the opposite parties no.1 and 2 hospital at very late stage and by then the situation of the patient has aggravated the patients was diagnosed with 'Left Cerebellar SOL Metastasis advanced stage' just before three months to her death on 29.09.2011. The alleged medical expenditure entirely has been reimbursed by the employer of the deceased. The complaint is frivolous and vexatious one and there are no merits in the complaint. The complainants assessed the alleged loss of income of the deceased for Rs.1,00,80,000/- and if all other heads claimed by the complainants include the amount of compensation will be more than Rs.one crore and as such the Commission will not have the pecuniary jurisdiction to entertain the complaint. Hence, the opposite party no.4 prayed for dismissal of the complaint.
9. The opposite party no.5 filed its written version by adopting the version filed on behalf of opposite party no.3 regarding treatment and medicines given to the deceased during her hospitalization with opposite party no.1 and also on all the aspects concerning the said complaint. There is no negligence on the part of the opposite party no.3 or its doctor’s during the course of discharging their professional duties when the wife of complainant no.1 was treated at NIMS and was admittedly discharged on 28.087.2009. The complainants did not make any allegations of deficiency of service or lack of professionalism on the part of doctors at opposite party no.3 when the wife of complainant was admitted for treatment at opposite party no.3 institute. Hence, the opposite party no.5 prayed for dismissal of the complaint.
10. On behalf of the complainants, the complainant no.1 filed his evidence affidavit and got Exs.A1 to A17 marked. On behalf of the opposite parties no.1 and 2, the opposite party no.2 filed his evidence affidavit and no documents have been marked on their behalf. On behalf of the opposite party no.3, the Executive Registrar has filed his evidence affidavit and no documents have been marked on its behalf. On behalf of the opposite party no.4, the Assistant Manager has filed his evidence affidavit and got Ex.B1 marked. On behalf of the opposite party no.5, the Senior Divisional Manager has filed his evidence affidavit and no documents have been marked on its behalf.
11. Counsel for complainant present. No representation for opposite parties no.1, 2, 4 and 5. Sri K.Rajeshwar Rao, Advocate represents counsel on record for opposite party no.3. Heard the counsel for complainant and opposite party no.3. The counsel for the complainants and the opposite parties no.1 to 5 have filed their respective written arguments.
12. The points that arise for consideration are :
1. Whether the complaint is bad for non-joinder/ mis-joinder of necessary parties?
2. Whether the complaint filed the complainants is barred by limitation?
3. Whether the opposite parties no.1 to 3 have committed any medical negligence?
4. Whether the complainants are entitled to get compensation from the opposite parties if so to what extent?
13. Point No.1 It is contended by the opposite party no.3 that the complainants have neither made any allegation against the opposite party no.3 nor its doctors in their complaint and in the absence of any allegations of negligence or deficiency in service against opposite party no.3 or its doctors the opposite party no.3 is not a proper and necessary party.
14. The complainants in their complaint stated that the deceased admitted into the opposite party no.3 hospital on 14.07.2009 and undergone biopsy. On 16.07.2009 the deceased underwent operation and after the operation she was given chemotherapy for six cycles at opposite partyno.3 hospital. Thereafter the deceased underwent surgery on 27.02.2010 at Indo-American Cancer Institute & Research Centre and discharged in good health. After that she again underwent chemotherapy for 4 more cycles of chemotherapy for every 3 weeks at the same hospital. Subsequently the deceased was in good health, very active and energetic.
15. From the above contents of the complaint it is clear that the complainants nowhere complained about the alleged deficiency in service or negligence on the part of the opposite party no.3 or its doctors during the treatment or thereafter at any point of time. The complainants and the deceased were completely satisfied with the services rendered by the opposite party no.3 and its doctors.
16. A 'necessary party' is a person who ought to have been joined as a party and in whose absence no effective decree could be passed at all by the Court. A 'proper party' is a party who, though not a necessary party, is a person whose presence would enable the court to completely, effectively and adequately adjudicate upon all matters in disputes in the suit, though he need not be a person in favour of or against whom the decree is to be made. If a person is not found to be a proper or necessary party, the court has no jurisdiction to implead him, against the wishes of the plaintiff. Therefore, so far as question of impleading opposite party no.3 as party is concerned, merely because the doctors of the opposite party no.3 have treated the complainant, the said hospital is not a necessary party and in absence of the opposite party no.3 effective order can be passed against opposite parties no.1 and 2. Therefore, the point no.1 is answered in favour of the opposite party no.3 and against the complainants.
17. Point No.2: The opposite party no.3 contended that the complaint is time barred, therefore, the same is liable to be dismissed. The contention of learned counsel for the opposite party no.3 is not acceptable. In the complaint, the complainants pleaded that the deceased was admitted in the opposite party no.1 Hospital in the month of June 2011 and she expired on 29.11.2011 . It appears that the deceased had taken treatment in the opposite party No.1 hospital till 29.09.2011. The instant complaint has been filed on 28.08.2013. Thus, the complaint has been filed within two years from the accrual of cause of action, therefore, the complaint is not barred by time. The point no.2 is answered in faovur of the complainants and against the opposite parties.
18. Points No.3 and 4: The counsel for the complainants have argued that that the complainant went to opposite party no.1 Hospital for check up and consultation with opposite party no.2 doctor in opposite party no.1 hospital on 20.06.2011 since she was suffering with mild headache. The opposite party no.2 advised to take CT scan for whole abdomen and US Neck and on the said advice the deceased under gone the said tests. After seeing the reports the opposite party no.2 informed the deceased that the reports were normal and nothing to worry and further advised her to consult any physician for her headache problem. The opposite party no.2 even after fully knowing her previous history of ovarian cancer had stated that the reports were normal. Though the deceased has taken treatment from a General Physician of Venus Hospital, still there is no recovery in her condition then the physician advised to consult a neuro physician to examine her. On the advice of NeuroPhysician CT Scan and MRO of her brain were taken and found some tumors in her brain and the Venus Hospital doctors recommended for operation at Omni Hospital but lack of confidence on the doctors of Omni Hospital the deceased approached the opposite party no.2 on 14.07.2011. The deceased got operated at opposite party no.1 hospital for her brain tumor on 18.07.2011 by a neurosurgeon Dr.Pardhasaradhi. After the operation there is no proper post operative treatment by any expert neuro surgeon. On 23.07.2011 the deceased was shifted to Ward. On the next day Dr.Parthasaradhi removed some water from her head and the deceased was discharged from the opposite party no.1 hospital on 25.07.2011. . On 02.08.2011 Dr.Jaipal Reddy removed stitches on her head and again advised for CT scan of brain and thereafter the deceased reported to Dr.Jaipal Reddy who prescribed some medicines. Thereafter on 01.09.2011 when the condition of the deceased deteriorated she consulted Dr.Jaipal Reddy who after testing removed some water from her brain and when her condition became serious Dr.Jaipal Reddy advised to admit in SICU. In the meantime the complainants consulted Dr.Manasa Kumar Panigrahi, Senior Neurosurgeon of KIMS Hospital for second opinion and he after seeing CT scan advised that she can recover on treating the infection in her lungs and rearranging water fountain on her head. The deceased was shifted to KIMS Hospital forcibly on 16.09.2011 and the deceased again undergone for surgery and water fountain in her head was rearranged. The doctors at KIMS Hospital have made brave efforts for her recovery for two weeks but due to her weak immune system she expired on 29.09.2011 at 8.00 p.m.
19. It is argued by the counsel for the complainants that had the opposite parties no.1 and 2 detected the cause of her condition the life of the deceased might have saved. Due to the carelessness and negligence of the opposite parties no.1 and 2 the deceased died. If there is no expert Neurosurgeon in opposite party no.1 hospital, they could not have been taken the case of the complainant no.1 wife at first instance and that complainants could have been directed to any other hospital. The complainants suffered loss as mentioned in the prayer clause of the complainant, therefore, the complainant is entitled to the compensation from the opposite parties, as mentioned in the prayer clause of the complaint.
20. He placed reliance on decisions of Hon’ble Supreme Court in Dr. Balram Prasad Vs. Dr. Kunal Saha & ors., reported in 2013(4)CPR 284(SC), Dr. Krishna Kumar Vs. State of Tamil Nadu & Ors. III (2015) CPJ 15 (SC) and Nizam Institute of Medical Sciences Vs. Prasanth S. Dhananka and Other, (2009) 6 SCC 1 .
21. The counsel for the opposite parties no.1 and 2 has argued that the deceased was brought to the opposite party no.1 hospital in the month of July 2011 and a perusal of the record would show that chemotherapy was initiated in the year 2009 in the opposite party no.3 hospital. It is also seen that she was treated at Venus Hospital, Omni Hospital, KIMS for the same complaint. The patient was brought to the opposite parties no.1 and 2 at a belated stage and by then the situation of the patient has aggravated. The patient was diagnosed with ' Left Cerebellar SOL metastasis'. The cancer in such cases metastasis to the brain from another location in the body thus the ovarian cancer of the patient spread to the brain. This occurs to many patients even months after the original cancer treatment. The patients with brain metastasis have a poor prognosis for cure. The deceased complained of headache and seizures which is normal in a patient with present diagnosis. The deceased underwent a surgery on 27.02.2010 at the American Cancer Institute and it was after six cycles of chemotherapy at NIMS. It is thus very clear that the carcinoma spread to the brain subsequently. As the complainants did not have any confidence in any of the doctors the complainants brought the deceased to the opposite parties no.1 and 2. Dr.Jaipal Reddy during the visit of the patient on 02.08.2011 had advised the family members regarding the condition of the patient and requested them to keep him updated about her condition but the complainants were careless and did not comply with the line of treatment and suddenly brought the patient to the hospital on 01.09.2011 in a very critical stage and it was seen that they were negligent in the after surgical care of the patient after discharge from the hospital. The opposite party no.1 and the doctors there put her immediately on antibiotics in order to control the infection that has set in during the patients stay at her house. It was also noticed and informed to the complainants that the patient’s brain fluid had malignant cells and it shows that the cancer had spread and very poor prognosis. Even on 12.09.2011 the complainant no.1 was explained about the critical condition of the patient and he has given his consent by signing the necessary papers and accepting the seriousness of the patient insptie of that the complainant got the patient discharged against medical advice on 15.09.2011 from the opposite party no.1 and 2. As a last resort the complainants have consulted another doctor and even the doctors in the said hospital could not help in the survival of the patient who succumbed to the disease on 29.09.2011 after having been discharged from the opposite party no.1 hospital on 15.09.2011. The opposite parties no.1 and 2 had given best available treatment and the deceased is a victim of a disease which has proved fatal inspite of all the efforts made by the opposite parties no.1 and 2. The Hon’ble Supreme Court has opined that in cases of medical negligence the complainant has to invariably examine a doctor to prove negligence and in the present case no doctor has been examined by the complainants on the contrary the opposite party no.2 has given his Chief Examination affidavit and has brought to the light the lacunas in the case of the complainants.
22. The counsel for the opposite parties no.4 and 5 has supported the arguments advanced by learned counsel for the opposite parties no.1 to 3.
23. We have heard learned counsel appearing for the parties and have also perused the documents filed by them in the complaint case.
24. The complainants have filed copy of Discharge Record of opposite party no.3 which is marked as Ex.A-1 issued by opposite party no.3, in which is it mentioned thus :-
Name of the Patient: Vasantha Kumari, Age: 44 Sex: F O.P.No.90701504 IP No.913151, Date of Admission: 14.07.2009; Date of Operation: 16.07.2009; Date of Discharge: 28.07.2009
Final Diagnosis: Ca. Ovary Advanced
Operation Done: Diagnostic Laparoscopy+ Biopsy of peritoneal deposits.
C/o abdominal distention – 25 days, gradually increasing. Low Urine output, constipation No H/o loss of weight/loss of appetite. Bowel, bladder habiuts normal. No h/o vomiting/Fever/Malena. No h/o Anorexia/Back ache. No cough. No jaundice. Post No h/o HTN/DM/TB.
On examination: Patient conscious, oriented, moderate, built, malnourished. GC-Fair, Afebrile, PR-78/min, BP-110/70, NO icterus/Cyanosis/Pedal edema/Lymphadenopathy. No Pallor. Anemia+
Clinical Diagnosis: Ca. Ovary Advanced
CECT abd-Large mixed dense enhancing SOL of 5x4.3 cm in left adnexal and 3x1.4 cm SOL in right adnexal. S/o B/I ovarian mass – possibly malignant with omental cake, peritoneal depsoits, ascites, Rt. Pleural effusion. ADA Ascitic fluid (outside) – 16 U/L ascetic fluid cytology negative of malignancy. Ascitic fluid (NIMS) (9A2376) – Malignant ascites –muicin secreting adenocarcinoma.
Treatment Given: Diagnostic Laparoscopy+Biopsy of peritoneal deposits.
Intra Op Findings:
1. e/o multiple peritoneal and omental deposits
2. e/o hemorrhagic ascites 3.5 ltrs. Drained
3. e/o growth over Rt. Ovary seen
4. No e/o deposits over liver surface butmutliple depsoits over the faciform ligament.
Final HPE(3649/09) – s/o peritoneal implants (non invasive) of serious cystic neoplasm of ovary
Course in Hospital – One cycle fo chemotherapy given on 28.07.2009
Regimn: 1. Taxol 135 mg + Carboplatic 180 mg weekly x 6 cycles
Condition on Discharge: Satisfactory.
Follow up in SOG OPD after 6 weeks at room No.23 on Tue/Wed/Fir/SOS.
25. Ex.A2 is the copy of Discharge Summary of Indo-American Cancer Institute & Research dated 23.04.2010 and date of discharge 23.04.2010
Final Diagnosis: a.Ovary (Stage III C)
Brief History of the Patient
Case of Ca.Ovary
Admitted for cycle 2 chemotherapy
Cycle 2 on 2.04.2010
Inj. Paclitaxel 260 mg
Inj.Carboplatic 450 mg
Condition on Discharge: Stable
Advised for re-admission on 14.05.2010 for cycle 3 chemotherapy.
On 28.02.2010 the Histopathology report was as under:
A. Uterus with adenexae
B. Left pelvic peritoneum
C. Right pelvic peritoneum
D. Peritoneum from left paracolic gutter
F. Deposit over rectum
26. Exs.A3 and Ex.A4 are the copies of CT scan report dated 21.06.2011 of whole abdomen plain and contrast and US of neck of the opposite party no.1 and the tests report related to abdomen and neck region but not of head region. The complainants contended that the deceased consulted the opposite party no.2 of opposite party no.1 hospital on 20.06.2011 since she is suffering with mild head-ache. The opposite party no.2 advised for CT scan for whom abdomen and US Neck for the problem of head and informed the deceased that everything was normal. While the opposite parties no.1 and 2 admitted that the deceased was registered for consultation in the month of June, 2011 and was diagnosed with ' Left Cerebellar SOL Metastasis' and advised for the suitable treatment. But Exs.A3 and A4 are the CT scan reports of whole abdomen and US Neck but not CT Scan or MRI report of the head region. The available medical records on record would only suggest that the opposite party no.2 was not prompt in taking all the necessary steps to find out the cause of headache from which the deceased had suffered. The earlier scan reports revealed the Ca. Ovary a Stage III and when the deceased came for complaint of headache the opposite party no.2 instead of taking CT scan of brain had taken CT Scan of whole abdomen and US Neck and advised her to consult any physician for her headache problem. Later, when the deceased suffered severe headache the neurophysician advised for CT scan of her brain and from the said reports it was found that there were tumors in the brain of the deceased. Ex.A6 is the copy of CT Brain report of Venus Hospital which shows that:
IMPRESSION: K/C/O Ca Ovary
E/o poorly delineated mixed dense left cerebellar SOL with mass effect causing compression of 4th ventricle and subsequent obstructive hydrocephalus - ? metastasis
27. Ex.A7 is the copy of CEMRI of Brain re dated 12.07.2011 of the Vijaya Diagnostic Centre which shows that:
History: Primary malignancy ovary on follow up with history of headache.
IMPRESSION: features consistent with
A large, well defined, regular septated, heterogeneously altered signal intensity with intensely and nodular enhancing component within, space occupying lesion suggested left cerebellar hemisphere with perilesional edema and mass effect on the 4th ventricle, quadrigeminal and Ambient cisterns, aqueduct of sylvius with patches of restricted diffusion, no bleed, with spectroscopic absence of NAa-suggestive of neoplastic etiology, possibly of metastatic variety.
From the above it is clear that the cancer had already spread to the brain of the deceased. But the opposite partyno.2 could not succeed in giving a proper remedy to the complainant who was having tumors in the brain. Had the opposite party no.2 in the fist instance detected the problem of headache by taking CT Scan/MRI stone. The 2nd opposite party failed to have the URS fragmentation of the stone done in a perfect manner. The 2nd opposite party failed in giving proper management to the DJ stent which was implanted from right kidney to the urinary bladder for facilitating free flow of urine. It is to be noted that the stenting was done to overcome the obstruction in the ureter and to ensure the drainage of urine from the kidney. PW3 has also deposed about the purpose for which stenting was done.
28. When the deceased consulted opposite party no.2 who is a reputed Oncologist for the complaint of mild headache by anticipating that the headache might have related to her cancer, the opposite party no.2 ought to have taken the CT scan or MRI of brain to find out the cause of headache suspecting the metastasis of brain.
29. Error of Judgment:
We cannot ignore that, the deceased had history of Ca.Carcinoma-III stage and when the deceased consulted the opposite partyno.2 for the complaint of mild headache, the opposite party no.2 should have first suspected metastasis of brain and ought to have taken the CT/MRI of brain. Later, when there was severe headache the deceased approached Venus Hospital wherein after CT scan it was found metastasis of brain and later it was also confirmed by the reports of Venus Hsital and Vijaya Diagnostic Centred and thereafter the deceased approached the opposite parties no.1 and 2 because the complainants were confident about the treatment by the opposite parties no.1 and 2. Ex.A8 is the copy of Histopathology report dated 18.07.2011 of the opposite party no.1 revealed that there was left cerebellar hemispheric tumor on the brain and it was also mentioned that there was metastatic deposits of papillary adenocarcinoma from the ovary. Hence, we are of considered view that, it was an "Error of Judgment" that the opposite parties no.1 and 2 failed to diagnose metastasis of brain
30. Loss of Chance:
Thus, the principle of "loss of chance" is applicable in this case. The opposite party no.2 failed to diagnose or suspect metastasis of brain of the deceased several investigations, but on the basis of clinical and past history opposite parties no.1 and 2 continued the treatment. In the case of Gregg vs Scott brought to the House of Lords in 2002, it was established that;
"a patient must prove that a doctor's action, or lack of it, caused the patient to suffer injury and not just the chance of avoiding an injury. In practical terms this means that a doctor failing to diagnose a case of cancer in which a patient has only a 25% chance of survival would not be found negligent. Only, if the chance of survival was over 50% i.e. a probability of a cure rather than a chance of a cure, would negligence be found."
34. We apply the principle of loss of chance in this case. The failure to diagnose would not matter so much because the patient was suffering from metastasis in the brain. Therefore, there were less than 50% chances of survival. Hence, applying the principle cited above (Loss of Chance), we do not hold opposite parties’ no.1 and 2 are liable for this negligence.
25. The complainants alleged that the doctors of opposite partyno.1 hospital have got casual and careless approach in the postoperative period of deceased who got operated at opposite party no.1 for her brain tumor on 18.07.2011 by a Neurosurgeon Dr.Pardhasaradhi. It is also alleged that even though the deceased got treated by various hospitals, the complainants are unsatisfied with the treatment of the doctors of opposite partyno.1 hospital.
36. It is well settled principle of Law that the burden of proof (on medical negligence) lies on the complainants. Mere allegation of medical negligence could not suffice as such allegation will have to be supported with expert evidence as to what was done should not have been done or what was not done should have been done. As per the available records, the deceased seems to have been treated according to set principles of management for Ca. Ovary and for metastasis of brain and therefore no negligence was found in the management of the deceased. Undoubtedly, in the present case, two possible courses of treatment were available operative procedure and radiation. It is well settled principle of Law that where two courses of treatment were available; the fact that treating doctor adopted one procedure/method in comparison to other is not treated as medical negligence. In such situations, the treating doctor is the best judge to adopt one or the other procedure/course available at hand. At the best, even for the sake of arguments, it is taken that opposite party no.2 adopted more risky method which ultimately proved fatal does not automatically lead us to record a finding of medical negligence. An error of judgment is no medical negligence and it is a time tested and firmly settled principle of Law in the domain of medical jurisprudence.
37. In this regard, the following cases may be referred in support thereof:
(i) Jacob Mathew Vs. State of Punjab (2005) 6 SCC 1.
(ii) Kusum Sharma & Others Vs. Batra Hospital & Medical Research Centre & Others (2010) 2 Scale 267.
(iii) Martin F. DSouza Vs. Mohd. Ishfaq (2009) 2 SCC 1.
38. Patient in this case was suffering from Cancer of Ovary which spreads to brain and had problem of severe headache and lost control of on her legs. It is a high risk life threatening disease and needs major complicated surgery to remove the tumor on brain. Surgery if feasible, gives best possible chance of palliation and cure from the cancer as against radiotherapy.
39. It is not in dispute that opposite party no.2 or the doctors who treated the deceased in the opposite party no.1 are competent and authorized to treat these cases. The basic principle relating to medical negligence is known as the BOLAM Rule. This was laid down in the judgment of Justice McNair in Bolam vs. Friern Hospital Management Committee (1957) 1 WLR 582 as follows :
'Where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of a Clapham 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….. It is well-established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art.'
Bolam’s test has been approved by the Supreme Court in Jacob Mathew’s case.
40. In Halsbury’s Laws of England the degree of skill and care required by a medical practitioner is stated as follows :
'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, and a person is not liable in negligence because someone else of greater skill and knowledge would have prescribed different treatment or operated in a different way; nor is he 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, even though a body of adverse opinion also existed among medical men. Deviation from normal practice is not necessarily evidence of negligence. To establish liability on that basis it must be shown (1) that there is a usual and normal practice; (2) that the defendant has not adopted it; and (3) that the course in fact adopted is one no professional man of ordinary skill would have taken had he been acting with ordinary care.'
41. At the cost of repetition, we may state that it is not the case of the complainants that opposite party no.2 or the doctors in the opposite party no.1 are not competent surgeons to undertake surgery. The complainants did not examine any doctor to state as to the usual and normal practice was not adopted. The Supreme Court recently in Martin F. D’Souza Vs. Mohd. Ishfaq reported in I (2009) CPJ 32 (SC) after referring to the entire case law on the subject observed :
There may be a few cases where an exceptionally brilliant doctor performs an operation or prescribes a treatment which has never been tried before to save the life of a patient when no known method of treatment is available. If the pa
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tient dies or suffers some serious harm, should the doctor be held liable? In our opinion he should not. Science advances by experimentation, but experiments sometime end in failure e.g. the operation on the Iranian twin sisters who were joined at the head since birth, or the first heart transplant by Dr. Barnard in South Africa. However, in such cases it is advisable for the doctor to explain the situation to the patient and take his written consent. Simply because a patient has not favourably responded to a treatment given by a doctor or a surgery has failed, the doctor cannot be held straightway liable for medical negligence by applying the doctrine of res ipsa loquitur. No sensible professional would intentionally commit an act or omission which would result in harm or injury to the patient since the professional reputation of the professional would be at stake. A single failure may cost him dear in his lapse. 42. The complainants have not specially stated what exactly is the negligence or deficiency in service on the part of the opposite parties no.1 and 2 and what omission and what commission on the part of the opposite parties amount to negligence and deficiency in service. There are no materials on record to establish that there is negligence or deficiency in service on the part of the opposite parties no.1 and 2 in treating the patient and in performing the surgery or that they have not taken postoperative care. We have to note that the mere allegations levelled against the opposite parties no.1 and 2 will not go to establish negligence or deficiency in service on the part of the opposite parties no.1 and 2. The medical negligence must be established and proved by adducing proper evidence and negligence cannot be presumed. Therefore in the absence of expert's evidence or expert's opinion and other required materials we have to hold that there is no deficiency of service on the part of the opposite parties no.1 and 2 in treating the deceased and conducting the surgery. 43. The Hon'ble National Commission in the case of V.K.Sharma -vs- Bharti Eye Foundation and another - II (2010) CPJ 94 (NC) has held "Just because the complainant not responded favourably to treatment, no negligence can be attributed to the opposite party." 44. The Hon'ble National Commission has further held as follows in the case of Prabha Ojha -vs- Neelmani - I (2010) CPJ 62 (NC) that: "It is by now well settled that onus of proof is on the party who alleges medical negligence. This has further been elaborated in subsequent judgments that mere statements of parties is not enough, allegation of negligence has to be proved with the help of expert medical opinion. Admittedly, in the present case the complainants have not brought on record any expert evidence to show as to what the doctor did was not to be done as per accepted medical practice or what he should have done as per accepted medical practice, which he failed to do." 45. The Hon'ble Supreme Court has laid down as follows in the case of Nizam Institute of Medical Science -vs- Prasanth S.Dhananka and others - (2009) 6 SCC INDLAW (SC) (1047) "In a case involving medical negligence once the initial burden has been discharged by the complainant by making out a case of negligence on the part of the hospital or doctor concerned, the onus then shifts on to the hospital or to the attending doctors and it is for the hospital to satisfy the court that there was no lack of care or negligence." 46. In the present case the initial burden has not been discharged by the complainants and no case of medical negligence has been made out against the opposite parties. 47. We have considered the evidence in detail and since there is no evidence challenging the evidence of opposite parties no.1 and 2 we are of the opinion that there was no negligence on the part of opposite parties no.1 and 2 in conducting the operation as was held by the Supreme Court that 'It must be remembered that sometimes despite their best efforts the treatment of a doctor fails. For instance, sometimes despite the best effort of a surgeon, the patient dies. That does not mean that the doctor or the surgeon must be held to be guilty of medical negligence, unless there is some strong evidence to suggest that he is.' 48. On the basis of the above discussion and legal position, we come to the conclusion that opposite parties no.1 and 2 were not guilty of medical negligence and therefore, the complaint against the Hospital and the doctors fails and is accordingly dismissed. In the result the complaint is dismissed. There shall be no order as to costs.