1. The opposite parties have assailed order dt. 5.10.2019 passed by District Forum, North West ,Delhi in CC no. 447/2008 vide which the complaint of respondent herein was allowed and the opposites parties/appellants herein were directed to pay Rs. 19 lacs for undergoing costlier tests and compensation for harassment, mental sufferings and mental agonies suffered and financial losses. They were also directed to pay Rs. 15000/- as cost of litigation. The amount was to be paid jointly or severally within 30 days from the date of receiving the said order failing which appellants were to pay interest @ 10% p.a. from the date of receiving order till the date of payment.
2 At the relevant time appellant no.4 was associate consultant with appellant no. 1.
3. Before coming to the merits of the appeal, it may be mentioned hat appellants have moved an application u/s 151 CPC for placing on record an additional documents viz. admission slip dt. 13.3.04 which is Annexure I to the application. The said application has been opposed by the respondent by filing a reply along with reply to main appeal. The application has been heard along with the appeal as per decision of Hon’ble High Court of Delhi in Savitri Devi Vs. Gayatri Devi 166(2010)DLT 595. Counsel for appellants submitted that said admission slip could not be filed before the District Forum due to inadvertent mistake. The admission slip is vital and essential document for just and proper adjudication of the matter. Copy of said admission slip is at page 54 of bunch of appeal. The counsel for appellants urged that it is dt. 13.3.04 and it shows that surgery was fixed for next day i.e. 14.3.04. But the patient did not turn up for about a month. She came only on 13.4.04 and so it was the fault of the patient and not the doctor. It demolishes the case of the respondent that surgery was not planned in time or that the same was deferred unnecessarily till August 2004.
4. Counsel for respondent contended that this admission slip is false on the face of it. It shows CR NO. (Consultation reference ) 56457. Infact the CR no. of the patient was 55619 as depicted in report, copy of which is at page 101 of the bunch of appeal. There cannot be two CR nos. for one patient. The CR no. shown in the admission slip sought to be produced by the appellant is subsequent in number and must be of a subsequent date. The same has been manipulated by the appellant after the decision of the District Forum and that is why the same was not filed before the District Forum.
5. Arguments of Counsel for respondent appears to be plausible. The authenticity of the admission slip sought to be filed by way of additional evidence in appeal is not beyond doubt. Moreover scope of order 41 rule 27 CPC dealing with additional evidence in appeal is very limited. It is confined to when the appellate court requires it for just decision of the case or when the same was not in the knowledge of the party seeking to lead additional evidence or the same could not be found by exercise of due diligence and care. It is not the case of the appellant that the said admission slip was not in the knowledge of appellant. In fact it is appellant’s own document and was very much within the knowledge of appellant. The plea of appellant is that it could not be filed due to an inadvertent mistake. The word inadvertent mistake is very vague. Additional evidence is not meant for filling up the gap or removing the lacuna left in the case of the party. Application for leading additional evidence is dismissed.
6. Initially the complaint was filed in this Commission where it was registered as CC no. 08/12 Vide order dt. 27.2.08, the then Hon’ble President of this Commission transferred the complaint to District Forum, at the stage of admission itself. Reason was that complainant claimed compensation of Rs. 25 lacs where as this Commission was of the view that negligence appeared to be not of that magnitude. However it was mentioned that in case District Forum at the final stage deemed that complainant was entitled for higher compensation, the District Forum could remit the complaint to this Commission for final adjudication.
7. Before entering into controversy on merits, I may mention that one of the objections of the appellants was that complaint was barred by limitation. The patient expired on 27.11.05 whereas the complaint was filed on 18.1.08. There appears to be a delay of about two months in filing the complaint. The complainant has sought condonation of delay in filing complaint, in para 13 of the compliant itself. The same has not been dealt with by the District Forum. Anyhow I proceed to decide the same.
8. The case of the complainant is that he being husband of patient and head of the family was in deep crisis on account of sad demise of patient. He was about 60 years of age and felt cheated and defrauded in the hands of appellants for their malafide and commercial motivated attitude towards the patient and for their act of gross negligence and deficiency in proper diagnosis and timely appropriate treatment. Resultantly he underwent a severe depression, mental breakdown and suffered from hyper tension for more than 2 years. For about last three months he was feeling little better and had taken needful advice to initiate the recent complaint to seek redressal of his grievance in the matter. He was advised bed rest most of the time. He had been under regular check up and constant observation and under constant medical treatment of his family doctor and he was unable to manage his affair and even to trace all the relevant medical records.
9. Law regarding condonation of delay in case of medical negligence is that it should be condoned liberally. It was so held in V.N. Shrikhande Vs. Anita Sena Fernandes 2011(1)SCC 53 and in Indu Sharma vs. IP Apollo Hospital 2015 SCC Online NCDRC 11. Accordingly the delay in filing the complaint is condoned.
10. Now reverting back to the merits of the case, the case of the complainant was that in order to get treatment, the Opposite party was engaged in effective treatment of the patient for “benign breast disease-left breast” The doctor at OP-1 hospital opined that there was no medical need to operate the patient. Mammography was conducted by Dr. A. K. Chaturvedi, HOD who confirmed no speculated masses or micro calcification. There was lump in her left breast. Ops no.2 to 4 were some of the doctors who were involved in the laboratory investigation and for conducting diagnostic test upon the patient from the histopathology and cytology as well as nuclear medicines laboratory investigation etc. Within a span of one month when the patient was taken to the hospital of OP in April 2004, a different medical opinion was expressed whereby the OP expressed severe medical urgency for operating upon the patient for removal of her left breast which was having a lump. . It was wholly unthinkable and not possible that the medical opinion changed in a completely reversed fashion in span of one month. It was reasonably evident that the medical diagnosis by way of mammography laboratory investigations (FNAC & Imaging guided FNAC) and by the nuclear medicine, the treatment done in a casual manner and there was reckless opinion given by OP that there was no malignancy in the lump in the left breast of the patient. The medical treatment of the patient would have been much better had Ops diagnosed the malignancy /spreading an active cancer in her left breast.
11. The patient visited OP 1 on 11.3.2004 for investigation of suspicious lump/ abnormality under her left breast. The test was conducted by Ops 2 to 4. The lump was reported to be benign as per annexure 1 and 2. For further confirmation she was advised for nuclear medicine test called Scinti Mammography and ultrasound guided FNAC. She underwent said test on 13.3.2004. Both the tests were negative for presence of malignancy and the lump was finally declared to be benign as per Annexure 3 & 4. The lump did not warrant any emergency and the patient was advised to visit lateron as per her convenience. After few days she felt some pain in the lump. She was immediately taken to OP -1 on 13.4.04 where she was admitted for conducting lumpectomy and biopsy of the infected part for investigation. On the operation table the doctor noticed considerable spread of the disease, even under the lymphodes. The doctor had decided to conduct MRM-removal of breast – along with lymphode clearance. The biopsy report confirmed malignancy in the breast with spread under all the four auxillary lymphode which was a sign of metastasic-proliferation of the disease to secondary sites from the primary site, commonly referred to as stage III of the disease in layman language.
12. The patient received 8 cycles of adjuvant chemotherapy from 5.5.04 to 14.10.04. After receiving 6th cycle she was sent for USG of the whole abdomen for investigation of the treatment received till then. The USG report mentioned of approximately 7.5 mm cystic lesion in the left lobe of her liver. She was sent for CT upper abdomen(Oral & I/V contrast) The same was not planned properly and in co relation with USG report dt. 21.8.04. The sections were planned one centimeter apart for the purpose of imaging. As such the cystic lesion of 7.5 mm size mentioned in the USG report was not intercepted. Therefore it was mentioned “no focal lesion scene”. The treating doctor did not take cognizance of this gross mistake and totally ignored the flaw in conducting the CT. Inspite of the fact that they knew that the cancer was fast proliferating kind and the patient was metastatic. The ongoing treatment needed a change/replan as previous drugs was not effective. After completion of 8th cycle of chemo till 6.10.04, she was sent for torturous external beam radiotheraphy which was not required as it was a local theraphy but the disease had already spread to liver.
13. She was sent for scanning of upper abdomen on 27.12.04. The report mentioned “presence of few hyperdense lesion, one of the largest in right lobe measures 2.4 x 2.2 cm. CT guided FNAC done from liver lesion revealed “metastatic ductal carcinoma” viz acute form of 3rd stage of malignancy. Second line chemotheraphy was planned which was repeated. Patient received several doses of antibiotic injections intervenous through her port to prevent its salvage. There was no doctor present by the bed side of patient during administration of first dose. The careless nurse infused the medicine rapidly as a result of which the patient grew restless. She almost reached almost her end when the doctor was called on emergency. The patient never had any complaint of high sugar but was declared diabetic. She was discharged on 20.3.05. The duty doctor did not take cognizance that the patient was not admitted for chemotherapy but for treatment of infected port and prepared the discharge summary in a reckless and highly mechanical manner without application of mind. When the family members consulted senior doctors, the duty doctor was called by his seniors and was told to revise the said summary and struck off two medicines viz. Erneset and tablet Domstal and added antibiotic tablet lizolid 600 mg. tablet supradyn, capsule lycogen etc. Another doctor consulted for anti diabetic medicine added tablet Amaryl and tablet glycyphagu SR to the list.
14. On 14.5.05 CT upper abdomen was conducted for revaluation. There was no significant improvement. She was advised for 3rd line of chemotheraphy based on oral drugs. She started maintaining high grade fever upto 104 F. She developed ascites in her abdomen and finally on 27.11.05 she succumbed to death after one and half year of agonizing and torturing treatment. Hence a complaint for claiming compensation of Rs. 25 lacs with interest @ 18% p.a. and litigation expenses of Rs. 20000/-, compensation for irreparable damage done to the complainant because of unbearable loss of company of his wife at this stage of life when he was 60 years of age which cannot be compensated in terms of money.
15. All the four OPs filed common written statement taking preliminary objections that complainant has not annexed any medical opinion from any other medical practitioner to show deficiency in service. The wife of complainant approached OP on 11.3.04 for memography test, With all due and reasonable care. The memography did not favour diagnosis of malignancy. The note in the report specifically mentioned “sensitivity of memography goes down if the breast have dense parenchyma”, the patient did not report dense parenchyma in both breasts. FNAC co relation from the breast was suggested and further scinti memography was advised which was performed on 13.3.04. The finding of the tests were recorded correctly. Breast carcinogenesis is a multi step process that starts with hyper plasia. The reports dt. 11.3.04 and 13.3.04 clearly revealed breast benign disease. Due to limitation of FNAC under CT diagnostic procedure , no definite comment was given. But malignancy was also not ruled out.
16. The complainant and patient were satisfied with the treatment and never disputed or alleged any fact mentioned in the complaint. The complaint is hopelessly time barred as the same has been filed after four years of alleged deficiency in service. The attending doctors opined that there was no medical need to operate the patient at a particular time. The other averments made in the complaint were denied. They prayed for dismissal of the complaint.
17. The complainant filed rejoinder and his own affidavit in evidence. He also filed opinion of Dr. Anil Kumar MD (Radiotherapy), Asst. Professor in department of radiotherapy of Sri Venkateshwara Institute of Medical Science, Tirupati, Andhra Pradesh which is quite exhaustive and well reasoned. It recites that after going through the medical report and all test reports of memography, FNAC, scinti memography and ultrasound guided FNAC including medical advice/prescription of Maharaja Agarsen Hospital pertaining to the disease (small lump in the left breast) of Smt. Susheela Garg which has been sent to him, he was of the opinion that the attending doctors of OP-1 before arising at conclusion of benign disease of breast in March 2004 should have performed excisional biopsy in view of limitations of all other tests done. Ultrasound done on 21.8.04 at OP-1 and on 22.8.04 (outside) showed 7.5 mm-8mm cyst in left lob of liver whereas earlier ultrasound done on 13.4.04 at OP-1 did not show any such lesion in the liver. The same clearly showed that disease was progressing inspite of chemotherapy. CT scan done on 23.4.08 reported no focal lesion. Since sensitivity of ultrasound was better than CT scan, it was quite evident that the cuts were not planned properly and as such the lesion was not intercepted. Under the circumstances the US report should have been relied upon. In such a case OP should have switched over to the second line of chemotherapy and radiotherapy should not have been given.
18. It may be recalled that Dr. Anil Kumar is a highly qualified and competent person to give opinion as he was working as Asst. Professor in department of Radiotherapy in well reputed hospital. Earlier he was doing private practice for cancer treatment in Delhi and it was he who referred the patient to OP-1 for treatment.
19. On the other hand the OP filed affidavit of Dr. D.S. Negi, AR of OP-1. OPS have also filed affidavit of Dr. A.K.Chatgurvedi, OP-2, Dr.P.S.Chaudhary OP-3 and Dr. Neeaj Prakash OP-4 in evidence.
20. The OPS moved an application for calling expert opinion from board of directors. On this application the report was called from LNJP hospital. It simply gives opinion that OP has not given wrong treatment, OP was not negligent in imparting treatment to the patient. The report is quite subjective. It does not give any reason in support of it . It is as if the same has been prepared to save the OPS.
21. The complainant filed detailed objections to expert opinion of LNJP hospital. It referred to international protocol and practice guidelines documented in medical literature and advice of several competent doctors of surgical units 1 & 2 of Maharaja Agarsen Hospital who advised excisional biopsy after examining the physical anatomy of the lump and suspicious indeterminate test report at initial diagnostic test of memography and FNAC which indicated strong suspicion of malignancy due to “globural left auxillary lymphadenopathy” etc. which were not commonly seen in benign aspirates. The patient had consulted doctor at Maharaja Agarsen Hospital before being referred to OP hospital. Thus the OP should have considered reports and prescriptions of Maharaja Agarsen Hospital. In para 9 (b) of the objections the complainant specifically mentioned that on 17.4.04 this commission in another case of wife of Lt. Col. Zile Singh Dahiya found the OP hospital guilty of medical negligence. In reply to the objections the OPS did not dispute the said fact.
22. Both the parties have filed written arguments. After going through the material on record, the District Forum passed the impugned order.
23. I have gone through the material on record and heard arguments for the purpose of deciding appeal. The counsel for the complainant submitted that defence now sought to be established by the appellants that patient was advised surgery on the very first visit on 13.3.04 is demolished by appellants own WS filed in District Forum. In para 6 of the WS, the OPS pleaded that memogaphy did not favour diagnosis of malignancy. It does not speak of any advice of surgery or planning for surgery or admission for surgery. Thus the admission slip copy of which is being sought by the appellant to be filed as additional evidence is altogether an after thought.
24. On the other hand counsel of OP argued that OPS tried their best . The OP is an advanced hospital for treatment of cancer and all the doctors employed by OP-1 are well qualified. Simply because their opinion differed with the opinion of doctors of Maharaja Agarsen Hospital, it is not sufficient to show negligence. At the most it can be a case of error of judgment but it is not a case of negligence. She emphasized that expert opinion of LNJP hospital exonerate the OPS.
25. I am unable to appreciate the arguments advanced by counsel for the appellants. Opinion of LNJP hospital is after all an opinion evidence. It is a weak type of evidence. Court is not bound to accept every opinion. In taking this view I am supported by decision of Hon’ble Supreme Court in V.Krishna Rao vs. Nikhil Super Specialty 2010(5)SCC 513. I have already observed above that expert opinion of LNJP hospital is subjective and not reasoned. As compared to the same the opinion of Dr.Anil Aggarwal filed by the complainant is more comprehensive and reasoned. The same inspires confidence. So I prefer to follow the opinion of Dr.Anil Aggarwal.
26. I may add complainant is a lay man so far as medical science is concerned. He cannot be expected to pin point as to where the negligence lies on the part of OP. He can not tell what should have been done or what has not been done. It is in the special knowledge of OPS as to where the fault lay. The burden of repelling medical negligence lay on OPs. This is what is known as Res Ipsa loquitor. The same is applicable to cases under consumer protection Act as per decision of Hon’ble Supreme Court in V.Krishna Rao Supra. Similar view was taken in Dr. Janak Kanthinath Nathores vs. Murlidhar Eknath Masane 2002(2)CPR 138.
27. Medical practitioner do not enjoy any immunity and can be sued in contract or tort for breach of their legal duties of care and caution if they fail to exercise reasonable skill and care causing harm to patient. In this regard reliance can be placed upon decision of Hon’ble Supreme court in Nizam Institute of Medical Science vs. Prasanth S.Dhannaka II (2009) CPJ 61.
28. In N. Laxminara Simhaiah vs. Medical Administrator Ravi Triloskar Memorial Hospi
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tal & Research Centre (2009) CPJ 62, National Commission held that where doctors negligently fail to properly diagnose the ailment of cancer in the breast (lump) due to which the disease proliferated to lymph nodes and neck region, ultimately leading to death of the patient, it is not a case of error of judgment but is a case of guilty of negligence. The same squarely applies to the case in hand. 29. In Dr. Anil Jain vs. Devender Kumar IV (2012) CPJ 497 National Commission held that if surgery is not done on time, negligence stands established. This is what has happened in the present case. It appears that the doctors of OP hospital were over confident and adamant in not doing excisional biopsy in the breast. They postponed the surgery without any rhyme or reason. 30. The counsel for respondent relied upon report of Maharaja Agarsen Hospital, dt. 20.8.04 which is E x.CW1/20 and is at page 228 of bunch of appeal. The back page of the said report has not been filed by the appellant. The same was filed by respondent during arguments and has been placed at page 228 A of bunch of appeal. The same shows how the doctors of OP hospital ignored the report of Maharaja Agarsen Hospital prescribing excisional biopsy. 31. Counsel for respondent drew my attention towards copies of medical literature at page 242 to 247 of bunch of appeal. It is mentioned therein that PET SCAN AND SCINTIMEMOGRAPHY are not commonly used for breast cancer screening. They are expensive and their false negative rates are high. At page 247 it is mentioned that excisional biospsy is the most involved kind of biopsy which attempts to remove the entire suspicious lump of tissue from the breast. This is the surest way to establish the diagnosis without winding up with false negative. 32. To sum up I do not find any ground to interfere with the findings of the District Forum. The compensation and cost of litigation awarded by the District Forum are quite moderate. Interest has been given only from the date of order and not from date of filing complaint. The appeal fails and is dismissed. Copies of the order be sent to all the parties free of cost. One copy of the order be sent to District Forum for information.