DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi-110016.
Case No.906/07
Sh. Pradeep Kumar Sharma
J-221/14, Mehrauli, New Delhi ….Complainant
Versus
1. The Director
All India Institute of Medical Sciences,
Ansari Nagar, New Delhi-110016
2. Head of the Ortho. Deptt.
through Medical Superintendent
All India Institute of Medical Sciences,
Ansari Nagar, New Delhi-110016
3. Head of the Radiology Deptt. (Main)
through Medical Superintendent,
All India Institute of Medical Sciences,
Ansari Nagar, New Delhi-110016
4. Head of the Deptt. Administration
Through Medical Superintendent
All India Institute of Medical Sciences,
Ansari Nagar, New Delhi-110016
5. Head of the Cancer Deptt. (IRCH)
through Medical Superintendent
All India Institute of Medical Sciences,
Ansari Nagar, New Delhi-110016
6. Union of India
through the Chief Secretary,
Ministry of Health, Govt. of India,
Nirman Bhawan, New Delhi-110011 ….Opposite Parties
Date of Institution : 18.07.07/17.08.07 Date of Order : 07.01.17
Coram:
Sh. N.K. Goel, President
Ms. Naina Bakshi, Member
Initially, the complaint was filed before the State Commission and the same was transferred to this Forum vide order dated 18.07.07 with the directions to appear before this Forum on 17.08.07.
In order to decide the complaint effectively, the following relevant portions of the complaint are reproduced hereunder:
“4. That the complainant had reported in AIIMS on 15.4.2002 for urine retention. After conducting the tests, Prostate Cancer was detected and the complainant was operated on 3.5.2002. After operation the complainant was attached to IRCH (Cancer Institute of AIIMS) for further checkups and for any kind of problems related to health.
5. That because of the gross medical negligence committed by the Doctors of All India Institute of Medical Sciences, the life of the complainant has miserable and causing him partial permanent disability for whole life, entitling him for compensation in the facts stated here in this complaint.
6. That the complainant had been feeling some pain in his right hip joint in the month of March, 2003 and for that purpose he approached the AIIMS on 17.4.03 in Cancer Department (IRCH No.68777) and was advised Bone-Scan. After bone-scan, the Cancer Department on 7.8.03 referred the case to Orthopedic Departments with the remarks that if they are convinced about metastatic then plan radiotherapy.
7. That immediately thereafter on 10.8.2003, the Orthopedic Department started investigations and conducted X-ray. On 5.9.03 the Ortho. Department found that PSA level was negative meaning thereby that there was no metastatic. However, since the Rt. hip was showing “inflammatory” in the bone scan, radio- conference was advised with Dr. Bhavik. On 10.09.2003, MRI of the right hip joint was conducted and the report was suggestive of arthritis right hip joint tuberculosis and unlikely to be metastatic meaning thereby that at the best it could have been a case of T.B. of the Rt. Hip joint and not a case of Cancer and in that direction the treatment should have been started. On the said report again Dr. S. Aslam of Ortho. Deptt. wanted to have Conference with Dr. Bhavik of the same department. After the said Conference on 17.9.03, the Ortho Department inspite of the advise given in the second report and should have tested for T.B. also, before referring the matter to the Radio-therapy OPD for radiotherapy treatment for metastatic, as would be evident from the prescription (OPD registration No.3418/03). Therefore Radiotherapy Department registered the case on 18.9.03 vide registration No.9255.
8. That the Radiotherapy Department acted upon the directions of Ortho Department and not taken any initiative of checking as to whether the complainant was suffering from T.B. or Cancer, started radiotherapy treatment of the Cancer on 20.09.03. The said Radiotherapy Department after giving Radiotherapy treatment for cancer, started intensive medication (chemotherapy) on 6.10.03 for the cancer and prescribed Cancer Zoldorate Injections and Tabi Tablets. These injections were administered by the said Department provided by the complainant which continued upto 20.2.2004 and Tabi Tablets to continue for whole life.
9. That thereafter also the injections and other treatment continued for a long time. But to the surprise of the complainant, there has been no relief from the pain and it has been increasing day by day and the complainant had been feeling discomfort in walking and was not able to move properly. However, the complainant was asked to wait for some time during all this period. On 3.3.05 after expiry of almost one year from 20.2.04, again PSA (which indicates the presence of cancer) was found much below the level meaning thereby that there has been no cancer. This PSA was tested by them earlier also which was found negative. Again on 3.3.05 certain other medicines and three more injections on 4.5.04 were prescribed by Dr. Zulka of the Radiotherapy Department.
10. That when the pain not subsiding, the Radiotherapy Department on 20.4.05 after bone-scan found that the hip infection has increased since previous scan and said that the metastatic can not be ruled out and therefore, referred the matter to Dr. S. Alam. Dr. S. Alam on that very day referred for Radio-Conference with Dr. Sriniwas and after discussing with the Radio Conference on 27.4.05 and again prescribed certain treatment. However, in the mean time the Radiotherapy Department referred the case again to the Orthopedic Department because of the increase of the pain and no relief to the complainant.
11. That the Ortho Department has been negligent in not observing that the treatment of the caner was not giving any relief, rather pain was increasing, the opposite parties should have started the treatment for the bone T.B. which they have never done. The complainant again reported to the Cancer Department on 25.4.05 and in view of the fact that the cancer treatment was not giving any relief to the complainant, he was referred by them to the Ortho Department for said joint pain. The Ortho Department without realizing the condition of the complainant and his sufferings for the last over two years increasing the infection, again prescribed some treatment. On 13.5.05, the Ortho Department abruptly advised the complainant for admission in Casualty and prescribed some antibiotics in the meanwhile. On 18.5.05 they referred the case to the Casualty.
12. That the aforesaid sequence and the facts and circumstances and shuttling of the complainant from one department to the other in AIIMS from 17.04.2003, depict miserable and highly negligent approach on the part of the Doctors who have been treating the complainant for over two years. None of the Doctors have taken care to find out the decease even when PSA (test to find out cancer) has always been showing negative and the MRI report has also ruled out the cancer on 10.9.03 and 26.5.2005. In these modern days when AIIMS is equipped and manned by the highest medical professionals in India and abroad and they have got the best modern equipment and facilities, the detection of the bone cancer is a very small thing, particularly when only decease has ever been noticed or contemplated by any of these Departments. The complainant, who has been a strong ex-serviceman and has a highly long life expectancy in his family, has to suffer because of this negligence of the Doctors making his disable for life and he has to walk now on the sticks, as would be evident from the other facts herein below.
13 That though admission for the Casualty has been prescribed on 13/18.5.05, AIIMS refused to admit the complainant in Casualty and transferred the case to Safdarjung Hospital to pass the buck and avoid the responsibilities of their misdeeds. Immediately, the complainant got his admission with great difficulty and his high resources in the Safdarjung Hospital on 20.5.05. The Safdarjang Hospital had also felt suspicious about the treatment given by the Opposite Party. After going through the record and further tests and again MRI Scan reported the increase of disease in Rt. Hip joint when compared with the earlier MRI scan dated 10.9.03, they found that the case of the complainant has become highly complicated and after investigation found that it is a serious case of consistent with tuberculosis. Osteonyelitis (R) hip. Thereafter the operation was done on 27.6.05 for right hip joint. This is a startling fact that more than one kilogram of puss was removed by them during the operation. After the operation the complainant was discharged from Safdarjang Hospital on 9.7.05. After getting treatment for 18 months, the T.B. of my client is completely cured and he has now been able to walk with the help of stick.”
The details of the medical expenses stated to have been incurred by the complainant are given in para No.14 of the complaint. Prayers of the complainant are as follows:-
- Grant a compensation of Rs.40 Lakhs (Rupees forty lakhs) to the complainant to be paid by the Opposite Parties.
- The cost and the interest @ 18% per annum be also allowed.
As stated hereinabove, the complaint was transferred to this Forum.
OP No.6 has been proceeded exparte.
OP No.1 to 5 have filed their joint written statement. The relevant portions of the Written statement are reproduced hereunder:-
“…It is submitted that at AIIMS the complainant was given proper treatment as per the accepted and acknowledged procedure by the competent doctors and there has been no negligence on the part of the answering opposite parties.”
“…It is submitted that the complainant had reported in AIIMS even before 15.04.2002, the documents of which have been withheld by the complainant deliberately and with malafide intention. It is submitted that patient was a diagnosed case of Carcinoma Prostate with bone metastasis with the histopathology diagnosis no.02-9041 dated 09.04.2002 (Prostatic Carcinoma-Grade-III). For the treatment of said disease, the patient had undergone Bilateral Orchidectomy on 03.05.2002.”
“It is denied that after the said operation, the patient remained attached to the IRCH, AIIMS. It is submitted that after the said operation, the patient did not come for follow-ups as required and had also not made any complaint in that regard.”
“…It is submitted that on 07.08.2003, the complainant was also having pain in his jaw. Late complainant was also having pain in his jaw. Later on he also developed pain in his ankle, further study of the Bone San revealed increase uptake of radiotracer in Right Parietal Bone, 4th left rib posteriorly and Right Ischium, suggestive of skeletal involvement in the disease process, which were symptomatic”.
“…It is submitted that the X-Ray revealed the sclerosis at the ischial-tuberosity. Negative of PSA level does not mean that there was no metastasis. The PSA level was negative only because, the complainant had earlier operated for prostate carcinoma and had taken medicines for the same. Further the patient was a diagnosed case of prostate carcinoma with bone metastasis, and was also symptomatic of BONY metastasis as aforesaid. The MRI dated 10.09.2003 does not mention as suggestive of right hip joint tuberculosis. The said MRI only mentions as arthritis right hip joint. The said MRI only querried about tubercular and does not say that the patient was suffering from the tuberculosis. It is denied that at the best it could have been a case of T.B. of right hip joint and not of a cancer. It is denied that in that direction, the treatment should have been started. It is denied that the ortho department, inspite of advice given and should have tested for T.B., before referring the matter to Radio Therapy OPD, as alleged. It is submitted that all the reports including the MRI were discussed in Radio Conference at deptt. of Radio- diagnosis, AIIMS. The inference was inflammatory changes in RT. Femur and aceptabulum plus lesion in ischium, which was inferred as metastasis from prostate cancer, as per the present clinical context. Therefore the patient was referred for radiotherapy OPD for radio therapy and was given palliative Radiotherapy. Moreover the said MRI report was from out side of the Institute and was not confirmed in the combined radio conference of the deptt. of Orthopeadics and Radio- diagnosis. The patient was rightly referred for radio-therapy as per the clinical condition and symptoms of the patient.”
“…The doctors of Radiotherapy department do not act on the direction of ortho department but they take their independent decision on their own clinical examinations. It is submitted that as aforesaid, after considering all the report of the patient and after clinical examination of the patient, the patient was given radiotherapy treatment in the best interest of the patient. And thereafter the patient was prescribed medicines as per the recommended practice.”
… The complainant never complained of pain before March 2005. It is denied that the complainant was asked to wait for some time during all this period. It is denied that on 03.03.2005, the PSA level was found negative. It is denied that the PSA level was found much below the level, meaning thereby that there was no cancer. It is submitted that on 03.03.2005, the PSA level was 2.1 that means the PSA level was rising. The medicines and injections were rightly prescribed by the doctors.”
“… It is submitted that on 11.04.2005, as X-ray of right hip did not show any abnormality and therefore, the patient was advised bone-scan. The bone-scan were suggestive of infective pathology although metastatic disease could not be ruled out. Therefore the case was again referred for discussion in the Radio-diagnosis deptt. The case was again discussed in the Radio-conference on 27.04.2005 and as there was inflammatory itiology, therefore, the patient was also advised to undergo synovial aspiration of the right hip.”
“… It is submitted that as the patient was a diagnosed case of the prostate carcinoma with bone metastasis and further patient’s condition was clinically symptomatic and as such the patient was rightly given the treatment. It is further relevant to mention here that the metastatic disease cannot be eradicated completely and can only be controlled.”
“…It is submitted that the finding of aspiration from the hip showed occasional pus cells although no organism was grown. The patient was seen in the Ortho OPD and after a careful evaluation, the patient was advised admission in the casualty. Besides, the suspicion of the metastatic disease was logical in this patient as he was a diagnosed case of prostate cancer with the metastasis and it was essential to discuss the case in a combined radio conference to come to a conclusion.”
“… The complainant was provided the best possible treatment as per the recommended practice and procedure by the competent and qualified doctors. It is submitted that as aforesaid, complainant was a diagnosed case of prostate carcinoma with bone metastasis. Further the treatment was given to the patient after careful evaluation and investigation. The patient was rightly given the treatment. If SPA level is negative than it does not mean that cancer is ruled out. Further as aforesaid, metastatic disease cannot eradicated completely and can only be controlled. In the case of the complainant, the PSA level was negative on 10.09.2003 as the patient has earlier been operated upon for Prostate Carcinoma and was under continuous treatment of bone metastasis. On 03.03.2005, the PSA level has risen.”
“… It is denied that the Safdarjung Hospital also felt suspicious about the treatment provided by the answering opposite parties, as alleged. It is denied that they found that the case of the complainant has become highly complicated and after investigation found that it is a serious case of consistent with tuberclosis osteonelitis (R) hip, as alleged. It is submitted that no investigation reports of Safdarjang Hospital have been filed and supplied to the answering opposite parties to comment in this regard. It is submitted that at AIIMS itself, the aspiration from hip showed occasional puss cells and that is why, the patient was advised admission to remove the puss, which is alleged to have been done at Safdarjung Hospital. Further the complainant has withheld the documents about his further treatment to comment in this regard.”
“… It is submitted that money if any charged at AIIMS was only towards consumables and not towards the services rendered and treatment provided at AIIMS and the complainant has not paid any amount for the treatment provided to him at AIIMS.”
It is prayed that the complaint be dismissed.
Complainant has filed a rejoinder.
Complainant has filed his affidavit in evidence. On the other hand, affidavit of Sh. D. K. Sharma, Medical Superintendent of OP No.1 has been filed in evidence on behalf of OP No.1 to 5.
Written arguments have been filed on behalf of the parties.
We have heard the arguments on behalf of the Complainant and have also gone through the material placed before us.
The expert medical opinion has been sough from Safdarjung Hospital, New Delhi which has been submitted alongwith the letter dated 09.03.10 and the medical opinion report bears No.2-19/10-MR dated 27.01.10. The relevant portion of medical opinion report reads as under:-
“The patient Shri Pradeep Kumar Sharma was operated for carcinoma prostrate in May 2002 and was being followed up in the IRCH.
The bone scan done on August 2002 showed involvement of multiple bones suggestive of bony secondaries.
The bone scan repeated in July 2003 showed involvement of right hip joint suggestive of either inflammatory or metastatic pathology.
The case was discussed in the radio conference in Sept 2003 and the patient was referred to the deptt. of Radiotherapy and Urology. He was being treated in the deptt of Radiotherapy at IRCH. He was advised palliative radiotherapy.
In April 2005 the case was again discussed in radio conference and was advised aspiration of the right hip joint. The aspiration showed occasional pus cells and no organism were grown. The patient was advised admission in the casualty under Orthopedics and was advised antibiotics and traction.
However due to non availability of beds he was referred to Safdarjung Hospital were he was admitted on 20th April. He was investigation and surgery was performed. The biopsy report confirmed the diagnosis of tuberculosis of the hip joint.
Opinion: As per records the patient was managed by involvement of various departments of different specialties. Proper discussions were held in radio conference meets and the treatment was advised after consulting different departments. There appears no case of gross medical negligence in the treatment of the patient.”
The medical report in categorical terms provides that there appears to be no case of gross medical negligence in the treatment of the complainant. However, the submission of the complainant is that the medical opinion report is not binding on the Forum and the Forum can arrive at its own conclusion. In this regard, he has relied on a decision of the Hon’ble Supreme Court of India rendered in Malay Kumar Ganguly Vs. Sukumar Mukherjee (DR.) and Ors. VI (2009) SLT 164. We have very carefully gone through the said decision. There is no dispute about the proposition of law laid down in the authority. The court or for that matter consumer forum is not bound by the expert opinion. However, para-44 of the abovesaid judgment is relevant which is reproduced as hereunder:
“44. Medical science is a difficult one. The Court for the purpose of arriving at a decision on the basis of the opinions of experts must take into consideration the difference between an ‘expert witness’ and an ‘ordinary witness’. The opinion must be based on a person having special skill or knowledge in medical science. It could be admitted or denied. Whether such an evidence could be admitted or how much weight should be given thereto, lies within the domain of the Court. The evidence of an expert should, however, be interpreted like any other evidence.”
The complainant has not led any medical opinion to the contrary. We do not find any substantial reasons to differ with the medical opinion supra. Unless and until there is a contrary, cogent, convincing and substantial reason to the contrary the medical expert opinion cannot be discarded. As stated hereinabove, the complainant has not led any cogent medical evidence so as to disbelieve the medical expert opinion mentioned above.
In view of the above medical opinion report, we are left with no other option but to hold that while giving the treatment to the Complainant, the OP No.1 to 5 did not commit any medical negligence. Hence, we hold that no deficiency in service has been proved on the part of OP No.1 to 5.
In view of the above discussion, we do not find any merit in the complaint and dismiss it with no order as to costs.
Let a copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations. Thereafter file be consigned to record room.
Announced on 07.01.2017
