At, Delhi State Consumer Disputes Redressal Commission New Delhi
By, THE HONOURABLE MR. O.P. GUPTA (JUDICIAL MEMBER)
For the Appearing Parties: -----.
O.P. Gupta, Member (Judicial)
1. The complainant has come in appeal against order dated 23.02.2016 passed by District Forum-East dismissing his complaint. Wife of complainant underwent Radical Hysterectomy with Bilateral Adenexa removal on 21.07.2011 in hospital of respondent-1. All the modalities were discussed with complainant and later best option in Radiotherapy was chosen which is recent and suitable to the patient. The technique is known as IGRT in which post radiotherapy complications are reduced. She was given first sitting on 06.09.2011 and second sitting on 07.09.2011. She had weakness and respiratory tract allergic reactions. So she was admitted and she had low immunity so related symptoms. She developed intestinal obstruction and was managed surgically on 15.09.2011. She expired on 25.09.2011. After her death, complainant filed grievance with every higher government official and complaint before Delhi Medical Council for expert medical opinion. The opinion mentioned that line of radiotherapy opted by OP was as per current guidelines in radiotherapy in such category of patient where Grade II Cervix carcinoma is present. Being dissatisfied with the opinion, he filed an appeal with Medical Council of India which confirmed the line of treatment given to the patient. Complaint was filed in District Forum on 24.09.2014. In written version, the OP denied all allegations. According to OP, invasion of cancer cells was already in surrounding area of lower abdomen which requires repeated sittings to arrest the spread of malignant cells in body as his radiotherapy was opted after removal of cancer affected area.
2. The District Forum found that complainant neither asked for medical expert nor submitted any literature supporting his claim for negligence. Considering the health status of patient at the age of 62 years having Grade II Squamous Cell Carcinoma of Cervix, the District Forum found that when patient has malignant cancerous growth in his/her body and detected after a long time, the internal parts of body gets invaded by the cancer cells leading to lowering of body immunity which makes good platform for development of various infections. The line of treatment was opined to be correct based on guidelines of NCCN 12 and oncology expert doctors board. The complainant did not controvert the line of treatment opted by OP. Medical Council of Delhi and Medical Council of India have opined the line of treatment adopted by OP to be in accordance with standard procedure.
3. It was further observed by District Forum that response of treatment may be different in individual patient. After relying upon the decision in Martin F.D’Souza Vs. Ishfaq decided on 17.02.2009 pertaining to medical negligence it was held that treatment in extremely serious situation successfully saving life although resulting in side effects, held did not amount to negligence. After relying upon the decision in Jacob Mathew case (2005) 6 SCC1 in which bolam test was approved, it held that medical practioner would be liable only where their conduct fell below that of standard of a reasonably competent doctor. Harm resulting from mischance or misadventure or through an error of judgement would not necessarily attract such liability. Standard of care has to be judged in the light of knowledge and equipment available at the relevant point of time. In performing a novel operation or prescribing a novel treatment to save the patient’s life when no other method of treatment is available, even if resulting in death or causing some serious harm, they should not be held liable. 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 loquitor.
4. I have gone through the appeal and heard the counsel for appellant at the stage of admission. The District Forum has made a touching reference that complaint filed on 24.09.2014 is beyond limitation period and no condonation application has been filed. But District Forum did not dvelve on the point of limitation and did not dismiss the complaint on the ground of limitation. It preferred to decide the complaint on merits.
5. Anyhow, since question of limitation is purely legal and goes to the root of the case, I deem it fit to take up the same. I specifically asked the counsel for appellant as to how complaint was within limitation. It has been filed three years after the death whereas limitation under Consumer Protection Act is two years. The counsel for appellant made half hearted attempt to save limitation by urging that complainant had been seeking opinion of Delhi Medical Council and Medical Council of India. If that period is excluded, the complaint would be within limitation.
6. I have carefully considered the submissions and find that the same has no merits. It was held in Anasuya Vs. Parvati Amarendra Chowdhari (2007) 10 SCC 296 that it is for Consumer Forum to look into limitation without objection. In III (2008) CPJ 174, National Commission held that remaining engaged in other proceedings is no ground to extend limitation.
7. The applicant could have filed the case within limitation and then sought opi
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nion from Delhi Medical Council and Medical Council of India. 8. Counsel for appellant made fade attempt to argue that the OP did not provide copies of treatment to him and he had to seek the same under RTI. That could have been a ground for condonation of delay but not the ground for extension of limitation . The appellant did not seek any condonation of delay. Thus, I do not find any infirmity in the impugned order. The appeal fails and dismissed. 9. A copy of this order be sent to both the parties free of cost. 10. File be consigned to Record Room.