Tamil Nadu

North Chennai

CC/279/2018

Mohammed Najoom - Complainant(s)

Versus

Appollo Speciality Hospital & Others - Opp.Party(s)

N.A.Nissar Ahmed

21 Apr 2023

ORDER

 Complaint presented on :21.07.2009

 Date of disposal             :21.04.2023

                                                                                  

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

CHENNAI (NORTH)

@ 2^ND Floor, T.N.P.S.C. Road, V.O.C. Nagar, Park Town, Chennai – 600 003.

 

                PRESENT : THIRU. G. VINOBHA, M.A., B.L.,                          :PRESIDENT

                                      TMT. KAVITHA KANNAN, M.E.,                         : MEMBER-I

                                      THIRU.V.RAMAMURTHY,B.A.,B.L.,PGDLA., :MEMBER-II

 

C.C. No.279/2018

 

DATED FRIDAY THE 21^st DAY OF APRIL 2023

 

Mr.Mohammed Najoom,

S/o.Mohideen Meera Sahib,

Old No.18, New No.37,

Thayappa Mudali Street, Chennai-1

                                                             …..Complainant

 ..Vs..

1.M/s.Apollow Hospital Enterprises Ltd.,

Padma Complex,

320 Anna Salai, Chennai-35

(Amended as per order Dated:06.08.2013)

 

2.Radiology Department,

Apollo Specialty Hospital,

Padma Complex,

320 Anna Salai, Chennai-35

 

3. Dr.T.Raja

Apollo Specialty Hospital,

Padma Complex,

320 Anna Salai, Chennai-35

 

4. Dr.R.Surendran

Gastroenterologist,

Apollow Hospital,

21, Greams lane off greams road,

Greams Road, Chennai-6

                                                                                       …..Opposite Parties

                                               

Counsel for Complainant                          : M/s.N.A.Nissar Ahmed and 2 others

Counsel for opposite parties 1 & 2              : M/s. Maimoona Badhsa

Counsel for opposite parties 3 & 4              : M/s.S.Dayaleshwaran &

                                                                   K.Krishnamorthy

ORDER

 BY PRESENT : THIRU. G. VINOBHA, M.A., B.L.,  :PRESIDENT

This complaint has been filed by the complainant against the opposite parties under section 12 of the Consumer Protection Act, 1986 prays to direct the opposite parties to pay a sum of Rs.2000000/-towards damages, mental agony and hardship and cost.

This complaint was originally filed before the District Commission, Chennai (South) and taken on file in C.C. No.64/2011.  Thereafter, the said complaint has been transferred to this Commission as per the proceedings of the Hon’ble S.C.D.R.C. and taken on file as C.C. No.279/2018.

1.THE COMPLAINT IN BRIEF:

          The Complainant submitted that he approached the opposite parties for treating his son namely M.N.Fathak Ahamed for stomach cancer. His son was operated stomach cancer during September 2005 in Greams Road Hospital by the 4^th opposite party. It is submitted that thereafter his son once again suffered pain in abdomen region. And therefore he and his son approached the opposite parties during December 2006 and took treatment from the opposite parties. It is submitted that the cytopathology report of opposite parties' hospital on 12/12/06 opined and issued comments to correlate with clinical findings and suggested biopsy if indicated. However taking biopsy was neglected by the 3rd & 4^th opposite parties. It is submitted that as the pain persisted to his son he was constrained to approach Aarthi Advanced C.T.Scan and MRI who in turn on 24/2/07 on examining the patient gave USG abdomen report as ‘rectal wall thickening with mass lesion noted in the right recto vesicle region and thickened right seminal vesicle" And suggested TRUS guided biopsy to rule out secondaries and also reported soft tissue lesion (2.4 x2.6 cm) in right recto vesicle region with thickening of adjacent rectal wall and seminal vesicle and that lesion being a pelvis secondary deposit which means cancer is high apart from other findings. It is submitted that on getting the above report from Aarthi Advanced CT Scan, he and his son once again approached the opposite parties on 26/2/07. The complainant states that on perusing the report his son was required to undergo biopsy test by the 3 opposite party. But inspite of the report the 2^nd opposite party had informed that it was only a cyst and not secondary deposit (cancer). The test report was not furnished to him. This would clearly disclose gross negligence on the part of the 2^nd opposite party and the 3rd opposite party in not seeing and monitoring that the 2^nd opposite party had not furnished the report as required by the 3^rd opposite party.  It is submitted that as the pain increased to the patient once again he and his son approached the opposite parties on 5/4/07 and required to undergo TRUS guided biopsy test. On 5/4/2007 a report was given as "enlarged and cystic right seminal vesicles". The report dated 05/4/2007 by opposite parties did not correlate with the findings of the report of Aarthi Advanced CT Scan dt 24/2/07. And the examination and report furnished by opposite parties on 5/4/07 would clearly reveal that the patient was not examined for the ailment he was suffering but was examined in a very mechanical and reckless manner without discharging due professional care and skill. The examination by opposite parties on 5/4/07 grossly missed to go into the aspect of possible secondary deposits i.e cancer as reported in the Aarthi Advanced Scan Report. That apart it also failed to report about the rectal wall thickening with mass lesion in the right recto vesicle region and thickening of adjacent rectal wall and seminal vesicle. It is pertinent to point out that even after two months from the date of report from Aarthi Scan the 2nd opposite party had failed to point out the above aspects and suspicion of secondary deposit (cancer). It is submitted that he approached the MNRI Scans Pvt., Ltd., and the report dt 11/4/07 of MNRI Scans Pvt Ltd., revealed that there was 30 to 22 mm sized irregular mixed density lesion in the right seminal vesicle with significant contrast enhancement of solid areas (+60HU) with eccentric  area of internal necrosis. And that the surrounding recto vesicle and right pararectal fat planes are dirty and reported to consider possibility of secondary deposit i.e cancer in view of previous history which means cancer of OGJ malignancy. It is submitted that as the 4^th opposite party at Apollo Hospitals (Greams Road) had been saying continuously and confidently that there is no chance of recurrence of cancer and turned down the request for biopsy repeatedly from time to time. The complainant had to leave him this time and consult another doctor of Apollo Hospitals at Greams Road namely Dr.Arun Kumar. He on examining categorically noted that biopsy deferred (as it appeared in benign in U/S) apart from other recommendations. And as the examination endoscopic biopsy revealed no significant lesion vide report dated 25/4/07 he insisted to go for trans rectal ultra sound guided biopsy. On 27/4/07 the patient was examined as found in the report dated 30/4/07 by the Greams Road Apollo Hospital and in the trans rectal ultra sound guided biopsy it came to light that the patient was at Grade III Adenocarcinoma of rectum and the cancer was confirmed. The opposite parties Cyto pathology Department Report dt 12/12/06 though indicated for biopsy for want of due diligence and skill and care came to be confirmed by the Apollo Hospitals Greams Road by their examination on 30/4/07. Afterwards the patient once again started getting treatment from the 3^rd opposite party. It is submitted that of cancer being confirmed when the 2^nd opposite party examined the patient on 28/5/07 the report of the 2^nd opposite party did not go into the aspects of mass in rectum and had missed the vital aspect. It was only on 19/1/08 when the 2^nd  opposite party had reported the patient to be suffering from ill defined mass lesion and in all the afore said reports until 19/1/08 the 2^nd opposite party had not bothered to go into the aspect of mass lesion. Only on 19/1/08 the 2nd opposite party had deducted that the patient had come to ill defined mass lesion. It is submitted that his son ultimately died on 17/4/08 due to cancer. His son was Master in Computer Applications and was working in a multinational Company. The complainant had spent more than Rs.10,00,000/- towards treatment from 12/12/06 till the end. It is submitted that the Aarthi Scan and other scan reports charge a meager amount and gave correct report and whereas the opposite parties have been charging exorbitant amount and failed to report properly. They declined to accept the correct report of Aarthi and MNRI thereby committing deficiency for more than 11 months. And also failed in properly diagnosing inspite of reports furnished by the complainant. Inspite of the clear report on 12/12/06 to do biopsy the opposite parties have negligently and recklessly failed to do the same and dragged and as such due to this negligent and reckless treatment without exhibiting proper care and skill the complainant's son lost his life.It is submitted that all the above would clearly disclose that the patient was not examined properly with due care, diligence and skill. And was hurriedly and hastily examined by the 2nd opposite party and was made to undergo test without proper specifications and the medical examinations by the opposite parties' hospital did not touch upon the lesion in the recto vesicle region apart from other major findings of other independent scan report and also the findings of the Apollo Hospitals (Greams Road). The complainant and his son were running from pillar to post and due to gross medical negligence of the opposite parties he has lost his son. The complainant had issued a legal notice dt 22/1/09 to the opposite The opposite parties having acknowledged receipt issued an interim reply dt 18/2/09. Hence prayed that to pay a sum of Rs.2000000/- towards damages, mental agony and hardship.

2.WRITTEN VERSION FILED BY THE OPPOSITE PARTIES 1 & 2  IN BRIEF:

          The opposite parties 1 and 2 denies all the allegations and averments made in the complaint except those that are specifically admitted.  The complaint filed by the complainants was false, frivolous and vexatious and is as such liable to be dismissed. These Opposite Parties submit that Opposite parties 3 and 4 are only consultants, who are making use of the facilities available in the first Opposite Party hospital. The First Opposite Party has got no professional control over the Opposite parties 3 and 4 as they are expert consultants. There is no master and servant relationship between the first Opposite Party and the Opposite Parties 3 and 4. There is no gross negligence, medical malpractice or deficiency of service on the part of these Opposite Parties as alleged by the complainant in the treatment given to patient by the Opposite parties 3 and 4. In any event the first Opposite Party is not vicariously liable for the alleged gross negligence, medical malpractices anD deficiency in service rendered by the Opposite Parties 3 and 4.

3.WRITTEN VERSION FILED BY THE OPPOSITE PARTIES 3 & 4  IN BRIEF:

          The opposite parties 3 and 4 denies all the allegations and averments made in the complaint except those that are specifically admitted.  The complaint filed by the complainants was false, frivolous and vexatious and is as such liable to be dismissed.  Complainant's son approached Dr H Subromany,one of the consultant physicians of the Apollo Main Hospital, Chennai in Aug 2005 complaining of difficulty in swallowing and loss of weight. He was investigated and an upper GI endoscopy revealed that he had Carcinoma of the Oesophago Gastric junction. Dr Subromany in turn requested the 4^th Opposite Party to see the Complainant's son for an expert opinion. Hence it is not true that the complainant's son approached the Opposite Parties at the very first instance. He was then first seen by Dr Surendran the 4th Respondent at the Apollo Main Hospital in August 2005. After clinical examination and medical tests, Complainant's son was diagnosed with carcinoma adenocarcinoma - oesophago - gastric junction, endoscopic biopsy proven cancer in August 2005. Even at this stage the prognosis was not good because of the nature of cancer. Gastric cancers and Oesophago gastric junction cancers are life threatening diseases and are one of the highest causes of death. It is one of the leading causes of mortality world wide with very poor survival rate. Across the world it is noted that the five year survival is still very poor in this disease even in freshly diagnosed patients. In patients who develop advanced disease the median survival is only approximately 9 months. The Opposite Parties states that nevertheless, he underwent transthorasic oesophagogastrectomy as this was considered as the best possible option for him despite his poor prognosis. Complainant and his son were apprised of the gravity of the disease, the possible line of treatment and the outcome considering the seriousness of the situation. Complainant and his son acquiesced to the recommendations made by the Opposite Parties and as part of the treatment protocol was operated upon by the 4th Opposite Party. His postoperative specimen was sent for histopathology analysis which is the standard of care. His post operative histopathology not only confirmed his disease namely the cancer of the Oesopahgo Cardio region but also revealed several high risk features in his case. The pathology confirmed: That he had moderately differentiated adenocarcinoma, stomach, gastro-oesophageal junction, infiltrating the wall of the stomach transmurally and extending upto the adventitial line of resection. It also revealed that the Lymph nodes in the regions were also involved with the spread of the cancer. His pathology showed that the 3 lymph nodes along the lesser curvature of the stomach, 1 node along the greater curvature of the stomach are positive for cancer even at first diagnosis. Apart from these a separately sent lymphnode was also positive. These reports showed that there was spread of the cancer to several regional lymph nodes. These findings were recorded in the Histopathology report with Lab no 11310/2005 from the department of Histopathology. These are high risk features of the disease and denote a poor outcome of this aggressive cancer. Considering his young age and high risk status of the disease, it was decided to treat him with chemotherapy at the Apollo Speciality Hospital the 1"Opposite Party. His treatment was followed up, monitored and continued diligently. He underwent chemotherapies in September, October, November of 2005.  The complainant’s son had been seen periodically on many occasions in 2005 and in 2006 as elaborated above.  It is not true that he approached the opposite parties only in December 2006.  It is important to note that serial examinations have been done in 2006 which included both clinical and radiological examinations.  In January 2007 he presented with clinical features suggestive of fistula in ano.  He had a swelling in the perianal region, discharge from the perianal region and pain over the swelling.  He was appropriately diagnosed as a fistula in ano with discharge.  He was seen and reviewed by the 4^th opposite party and was diagnosed with a fistula-in-ano and underwent fistulectomy by the 4^th opposite party at Apollow main hospital.  The operated specimen was sent for histopathology in which the HPE was reported as: Non-specific sub acute inflammatory fistula-in-ano. This was non-cancerous. There was no neglect in any manner whatsoever by the opposite parties to treat the complainant’s son or to follow-up on his condition.  the fistula in ano is an independent ailment which has no relation to his previous malignancy. Transrectal ultrasound done in Aarthi Scan on 24.02.2007 showed high vascular mass lesion in the rectovesicle and right seminal vesicle region with loss of rectal wall adventitial layer, secondary deposits. The CT scan findings were equivocal and offered only a differential diagnosis of whether it could be a secondary or a granuloma which is an infectious conditions. But ultrasound evaluation features was suggestive of a cyst.  The cysts are benign condition.  Hence he was kept on close follow up.  After explaining this to the family he was advised to be on close follow up.  From the above facts, once there was no biopsy test was done the question of the report was not furnished would not arise. The ultrasound screening done on 04.04.2007 showed enlarged right seminal vesicles with cystic areas.  USG abdomen done on 05.04.2007 showed enlarged prostate.  Transrectal ultrasound done on 05.04.2007 showed enlarged and cystic right seminal vesicles.  These findings showed only cyctic right seminal vesical.  These findings did not categorically suggest a cancer.  Hence he was once again requested to be on careful follow up.  But the patient got a CT abdomen and pelvis done on 11.04.2007 at MNRI scans on his own which showed heterogenous enhancing mass in the right seminal vesicle infiltrating adjacent fat planes and pelvic organs, secondary deposit. Further it is completely false to state that even after two months from the date of report from Aarthi Scan, the 2^nd opposite party had failed to point out the above aspects and suspicion of secondary deposit (cancer).  In fact both in February 2007 and in April 2007 all efforts were made to evaluate his symptoms carefully.  In February his scans done in Aarthi were carefully reviewed.  He was adviced to be on close followup in February. Complainant’s son had complaints relating to his bladder and was therefore seen by Dr.Arun kumar, consultaan Urologist at Apollo Hospitals and also by a gastroenterologist at the Apollo hospitals. On 22.04.2007 colonoscopy was done at Apollow Main Hospital and biopsies were done during the colonoscopy.  The biopsies showed only chronic inflammation and no indication that the cancer had recurred.  Dr.Thirumalai ganesan in turn did an examination under general anaesthesia and did a transrectal biopsy of the nodular growth on 26.04.2007.  He was able to perform the biopsy since the complainant’s son was under general anaesthesia and in a relaxed state.  The biopsy showed features consistent with moderately differentiated grade III adenocarcinoma. The complainant’s son was advised to meet the 4^th opposite party but chose to meet another surgical team.  There was no question of the 4^th opposite party assuring him that there was no chance of cancer. Even after he diagnosis of secondary deposits in seminal vesical in April 2007 he was undergoing treatment with the opposite parties for nearly one more year of treatment from the diagnosis of secondaries.  He was treated for the relapsed disease one again with systemic chemotherapy. He received systemic chemotherapy cycles as inpatient and later in the day care centre.  He was also referred for palliative radiotherapy. In feb 2008 he developed a new progression.  He developed progressive loss of appetite and loss of weight with retrosternal stasis of food with ergurgitation.  He was seen at Med India Hospitals by Dr.T.S.Chandrasekar, Consultant Gastroenterologist. Upper GI endoscopy showed angulation of mouth of the afferent loop. Further he did not die in the care of the opposite parties.  However it is understood that he died in all probability of further progression of the disease and did not die of the secondary deposit in the seminal vesicals.  he died in all probability of extensive disease and progressive loss of nutrition.  He did not die in Apollo speciality hospitals, and did not die while he was in our care. The complainant has failed to implead med India hospitals and Dr.T.S.Chandrasekar in the complaint and the complaint ought to be dismissed in limine on this ground alone. It is false to say that the complainant’s son lost his life due to the gross medical negligence of the opposite parties.  Complainant is trying to fasten liability on opposite parties by presenting misleading and incomplete facts. These opposite parties submit that as far as they are concerned there is no negligence on their part.  These opposite parties submit that the complainant has made such a huge claim without any basis.

4. POINTS FOR CONSIDERATION:

1. Whether there is any medical negligence and deficiency in service on the part opposite parties 1 to 4 as alleged in the complaint?

 

2. Whether the complainant is entitled for the reliefs prayed in the

    complaint.  If, so to what extent?

 

The complainant filed proof affidavit and documents Ex.A1 to A13 are marked on their side and written arguments.  The opposite parties have filed written version, proof affidavit, written arguments and Ex.B1 to Ex.B58 documents are marked on the opposite party side.

5. POINT NO :1 :-

          The complainant’s son M.N.Fathak Ahamed underwent operation for stomach cancer during September 2005 in Greams road hospital by the 4^th opposite party and once in December 2006 he suffered abdomen pain for which he approached the cytopatheology department of the opposite party and by report dated 12.12.2006 which is marked as Ex.A1 report was given to co relate with clinical findings and suggested biopsy if indicated but biopsy was neglected by 3^rd and 4^th opposite parties but, when the complainant son approached Aarthi CT Scan centre on 24.02.2007 on examining the USG abdomen it gave a report Rectal wall thickening with mass lesion noted in the right recto vesicle regions and thickened right seminal vesicle and suggested TRUS guided biopsy and also reported soft tissue lesion 2.4 x 2.6 cm in right recto vesicle region with rectal wall thickening and lesion being and that lesion being a pelvis secondary deposit which means cancer is high apart from other findings, after getting such report the complainant approached the opposite parties on 26.02.2007 and inspite of the report of Aarthi scan centre the 2^nd opposite party informed that it was only a cyst and not a secondary deposit(cancer) and this would amount to have gross negligence on the part of the 2^nd and 3^rd opposite parties in not monitoring and furnishing correct report and thereafter due to increase of pain his son again approached the opposite parties on 05.04.2007 and after examination the opposite parties failed to give a correct report but mechanically examined the complainant’s son and failed to report about the rectal wall thickening and mass lesion in the right recto vesicle region which is two months after the Aarthi scan report and on 11.04.2007 when his son approached MNRI scan’s it revealed 30 to 22 mm size mixed density lesion in the seminal vesicle and reported to consider the possibility of secondary deposit i.e cancer in view of previous history and therefore the complainant contended that the 4^th opposite party continuously saying there is no chance of recurrence of cancer and turned down the request for biopsy and hence the complainant son met another doctor of Apollo Hospital Dr.Arun kumar and on 27.04.2007 when he examined in his son in the trans rectal ultra sound guided biopsy it came to light that he was having grade III Adenocarcinoma of rectum and the cancer was confirmed and thereafter his son took treatment with the 3^rd opposite party and also underwent surgery and it is alleged that the 2^nd opposite party missed the vital aspect to detect the cancer and failed to take biopsy even in the month of Feb 2007 and until the patient was reported that he was suffering from ill defined mass lesion the 2^nd opposite party has not go into that aspect and hence ultimately his son died on 17.04.2008 due to cancer and he was only 27 years and working in Multinational company and thereby he suffered a loss of income and therefore the complaiantn claim compensation for negligence on the part of the opposite parties in failing to take biopsy immediately after the report dated 12.12.2006 and also alleged that negligent and reckless treatment without proper care on the part of the opposite parties.

          6. But the 1^st and 2^nd opposite parties contended that 3^rd and 4^th opposite parties were only expert consultants and there is no master and servant relationship between them and therefore contended that they are not vicariously liable for the alleged negligence of the 3^rd and 4^th opposite parties and adopted the written version of 3^rd and 4^th in other respects.

          7. The 3^rd and 4^th opposite parties mainly contended that the complaint is bad for non-joinder of necessary parties since the complainant took treatment with Dr.Thirumalai Ganesan and during his lost days before death he was taking treatment with Med India hospital with Dr.T.S.Chandrasekar who were not added as parties to the complaint and further contended that the complainant’s son was taking treatment in Apollo main hospital in August 2005 when he was diagnosed with carcinoma oesophago gastric junction Adenocarcinoma endoscopic biopsy proven cancer and it is a life threatening disease and the survival rate is only 9 months approximately and he underwent transthorasic oesophagogoastrectomy in the main Apollo hospital in the year 2005 and the report showed there was spread of cancer to several regional lymph nodes.  But considering his young age he was treated at the Apollo speciality hospital of the 1^st opposite party he underwent chemotherapy and radiation from Dec 2005 to 31.01.2006 and CT scan of brain was also taken to rule out spread of cancer to the brain and he was advised to be in follow and stated that it is not true that his son approached only for the first time in Dec 2006 and further contended that the complainant son was found to have swelling and discharge from perianal region and he was diagnosed with fistula in ano and underwent fistulectomy by the 4^th opposite party in the main hospital in January 2007 and the operated specimen was sent for histopathology and report was received as non cancerous and the fistula in ano is an independent ailment which has no connection with the previous malignancy. It is further contended that after the CT scan report of Aarthi Scan centre the ultra sound evaluation of opposite party suggested a cyst which is in benign condition and he was closely follow and the scan report was also furnished to the complainant by the 2^nd opposite party on 26.02.2007 and further stated USG abdomen on done on 05.04.2007 showed enlarged cystic right  seminal vesicle which did not categorically suggest a cancer and he was requested to be on careful follow up but the patient got a Ct abdomen at MNRI scan on his own on 11.04.2007 which showed a mass in the right seminal vesicle and in Feb 2007 and Apr 2007 all efforts were made to evaluate his symptoms carefully and since the complainant son had complaints relating to his bladder he was seen by Dr.Arunkumar Urologist and colonoscopy was done on 22.04.2007 and the biopsy showed only chronic inflammation and he was referred to Dr.Thirumalai ganesan who did transrectal biopsy on 26.04.2007 under general anaesthesia and it showed grade III adenocarcinoma and thereafter his son again consulted the 3^rd opposite party and therefore contended that from the year 2005 he had undergone several radiological examination including ultrasound and CT scan and therefore denied that the diagnosis was neglected and even after diagnosis of secondary deposit in Apr 2007 he was undergoing treatment with the opposite parties for morethan one year and he received chemotherapy  and radiotherapy systematically but in Feb 2008 he developed a new progression and he has seen Dr.T.S.Chandrasekar Med India Hospital and on 01.03.2008 he underwent self expanding enteral stenting and he died due to further progression of the disease and did not die due to secondary deposit in the seminal vesicle and did not die in the opposite party hospital or in the care of opposite parties and therefore contended that due to the continous chemotherapy and necessary medical treatment given to him he lived nearly for one year even after the diagnosis of the secondary deposit in the seminal vesicle and denied the negligence on the part of the opposite parties.

          8. The complainant mainly relied upon the Aarthi scan report which is marked as Ex.A2 dated 24.02.2007 which gave a impression about mass lesion in the right recto vesical region and thickened right seminal vesicle and speaks about rectal wall thickening and the finding of MNRI scan report which is marked as Ex.A5 which gave impression of 30 x 22 mm lesion in the right seminal vesicle was not detected by the opposite parties in their investigation report which is marked as Ex.A1 dated 12.12.2006 and in Ex.A4 dated 05.04.2007 and in Ex.A9 dated 28.05.2007 and on perusal Ex.A1 it is found that the patient was required to corelate with clinical findings and suggested biopsy if indicated and as per the version of the opposite parties since the clinical finding at that time did not suggested or warranted biopsy it was not taken at that time but the patient was asked to be in follow up and it is found from Ex.A4 that the patient was having an enlarged cystic right seminal vesicle on 05.04.2007 and his ultra sound report also shows seminal vesicle appears normal and as per Ex.A9 dated 28.05.2007 also the seminal vesicle appear normal and based on such report the complainant counsel contended that the opposite party has negligently and hastly examined the complainant and has not correctly diagnosed the disease of the complainant’s son and therefore the complainant counsel alleged negligence on the part of the opposite party but it is found from Ex.A7 dated 22.04.2007 a milled chronic inflammation was found in rectum during the endoscopy biopsy and further the histopathology report dated 24.07.2007 indicated grade III adenocarcinoma and therefore it is found that even in April 2007 itself the complainant son was diagnosed of having grade III adenocarcinoma which is a rare and fatal disease as per the medical literatures filed by the opposite parties as Ex.B53 to B58 and the survival rate in respect of such disease is only for a short period as per those medical literature and hence the alleged failure on the opposite parties in not taking biopsy in Dec 2006 itself alone will not amount to negligence on the part of opposite parties.  In fact the complainant’s son is not a new patient who has come for treatment in Dec 2006 alone for the fist time to the opposite parties hospital but on perusal of documents filed by the opposite parties it is found that the complainant’s son has underwent a surgery of transthorasic esophago gastrotomy on 05.09.2005 itself for his stomach cancer as found from Ex.B19 at page 93 of volume.1 by opposite parties and it is found from Ex.B12 that the tumour was found extending at OG junction and infiltrating pandus of stomach and it is found from histopathology report which is marked as Ex.B26 at Page 217 of volume.1 that a moderately differentiated Adenocarcinoma was found even on 06.09.2005 while examining the complainant’s son by the opposite party hence there is no force in the contention of the complainant that in Dec 2006 when the complainant’s son approached the opposite parties they failed to diagnose correctly by not resorting to take biopsy for the complainant’s son.  It is further found the complainant’ son has undergone several cycles of chemotherapy and radiotherapy in the opposite parties hospital as found in Ex.B52 page 337 of volume.2 and it is found in September and October 2006 the complainant’s son underwent CT scan to rule out the secondary spread to the brain and eco test was also conducted and as per the report dated 15.011.2006 is condition was stable and disease was in remission but again his approached 3^rd opposite party in December 2006 and in January 2007 as per Ex.B6 he underwent fistulectomy surgery in the opposite party hospital and further the patient underwent ultrasound whole abdomen and CT scan of abdomen and pelvis on 05.04.2007 and 11.04.2007 to consider the possibility of secondary deposit and the examination by Dr.Thirumalai ganesan on 26.04.2007 reveal features of differentiated grade III Adenocarcinoma and thereafter he was treated for said disease with systemic chemotherapy and from October to December 2007 the patient was also referred to palliative radiotherapy as per Ex.B49 at page no.177 of volume.2 which he underwent at Med India hospital under the supervision Dr.T.S.Chandrasekar who are not parties to this complaint and in February 2008 the patient developed in new progression of loss of appetite and loss of weight and thereafter the patient decided to continue treatment at Med India Hospital and not under the care and control of opposite parties and on perusal of the entire averment medical records it is found that the complainant’s son has underwent operation for stomach cancer in the main hospital of the opposite party even in the year 2005 and in the year December 2006 since he  again developed pain the patient approached the opposite party and it is further found that close follow up was done by the opposite parties due to his prior history of stomach cancer and he was closely followed by taking ultra sound and CT scan to ascertain about the recurrence of cancer and there is no force in the contention of the complainant that the opposite parties failed to diagnose the rectal wall thickening and mass lesion in the right recto vesicle region and right seminal vesicle.  On the otherhand Ex.B1 to B52 filed by the opposite parties clearly prove the fact that the opposite parties has taken much care and given proper attention by taking ultra sound of abdomen and CT scan at periodical intervals to ascertain the recurrence of cancer and it is further found that after getting due consent from the patient the transthorasic esophago gastrotomy and fistulactomy surgery was duly performed by the opposite parties and it is further found that the patient underwent chemotherapy and radiotherapy at periodical intervals and it is further found that the patient who was taking treatment with the opposite party from the year 2005-2007 has all of a sudden went to Med India hospital for further treatment under the supervision of Dr.T.S.Chandrasekar and it is further found that in April 2008 the patient died under the control of the above said doctor with Med India Hospital and the opposite parties cannot be held liable for medical negligence in respect of death of the complainant’s son as there is no imperfection in the way of treatment given by the opposite parties to the complainant’s son. As per the medical literature which is filed by the opposite parties secondary malignancy of the seminal vesicle from non adjacent sites is extremely rare and the prognosis is very poor and it has been reported only in renal cell carcinoma and its occurrence in other organ is rarer and the counsel for the opposite parties contended that only due to proper treatment with chemotherapy and radiation the patient survived for 2 ½ years from 2005-2008 which is very typical of the survival with this type of cancer in the oesophago gastric region and further contended that in such type of cancers the survival world over is only for approximately 9 months but in the present complaint the patient lived more than one year because of care and skill and treatment given by the opposite parties and the complainant’s son died of spread of cancer and not due to delay of biopsy proven diagnosis as alleged by the complainant.

          9. The complainant counsel relied upon a decision reported in 2017(2) CPJ.177:2017 NCJ 651:2017(1)CPR 464:2018(2)CPR 360 Post Graduate Institute of medical Education & Research (PGI) V Mamta Rani @ Babli, (NCDRC) and also another decision reported in 2016(1)CLT 118 R.P.No.2074/2015 dated 02.12.2015 Ritu Garg Vs. Dr.Vineet Sharma and anr and contended that if biopsy was not conducted and wrong diagnosis was done it constitute medical negligence but in the present case there was no wrong diagnosis and the reason for not taking biopsy in Dec-2006 was also properly explained by the opposite party and hence the above said decision is not applicable to the facts of this case. 

          10. The opposite parties counsel relied upon a decisions reported in Dr.Ganesh Prasad and Anr Vs. Lal Janamajay nath Shahdeo I(2006) CPJ 117 NC, C.P.Sreekumar(Dr), MS(Ortho) Vs. S.Ramanujam (2009) 7 SCC 130, Martin F.D.’Souza Vs. Mohd Ishfaq MANU/SC/0225/2009, Jacob Mathew Vs. State of Punjab & Another (2005) 6 SCC 1, Kusum Sharma & Another Vs. Batra Hospital & Medical Research Center & others (2010) 3 SCC 480 and contended that as decided in Jacob Mathew case the onus to prove the medical negligence is largely on the claimant and the complainant has to prove the same by providing facta probanda as well as the facta probantia and further contended that to prove medical negligence the complainant must prove that the doctor has no required skill or he did not exercise reasonable skill which he possess and to prove that he has not exercised the skill in that profession which was exercised by a competent person in that profession as laid down in bolam case further the opposite party relied upon the following NCDRC Inderjeet Vs DrJagdeep singh dated 19.02.2004 III(2004) CPJ 20 NC (2021) 10 SC cases 291 Dr.Harish Kumar Khurna Vs. Joginder Singh and others in Civil appeal No. 7380/2009 dated 07.09.2021 2021 SCC Online Sc 1149 Bombay Hospital & medical research centre Vs. Asha Jaiswal and other in Civil Appeal NO.2322/2010 dated 30.11.2021 and contended that there should be material available on record to indicate medical negligence and in the present case there is no appropriate record or medical evidence to prove medical negligence or deficiency in service on the part of opposite parties. Hence it is found that the complainant failed to prove the medical negligence and deficiency in service on the part of opposite parties.  Point no.1 is answered accordingly.

11. POINT NO :2 :-

          Based on finding given Point No.1 the complainant failed to prove the medical negligence and deficiency in service on the part of opposite parties as alleged in the complaint and hence not entitled for compensation and damages as claimed in the complaint. Point No.2 is answered accordingly.

               In the result the Complaint is dismissed. No costs.

Dictated by the President to the Steno-Typist taken down, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this the 21^st day of  April 2023.

 

 

MEMBER – I               MEMBER – II                                   PRESIDENT

LIST OF DOCUMENTS FILED BY THE COMPLAINANT:

Ex.A1	12.12.2006	Investigation Report.
Ex.A2	24.02.2007	Aarthi Advance Scan Reports.
Ex.A3	26.2.2007	Report by opposite parties.
Ex.A4	05.04.2007	Report by opposite parties.
Ex.A5	11.04.2007	MNRI Scan Report.
Ex.A6		Diagnosis and recommendations.
Ex.A7	22.04.2007	Report by opposite parties.
Ex.A8	27.04.2007	Report by opposite parties.
Ex.A9	28.05.2007	Report by opposite parties.
Ex.A10	19.01.2008	Report by opposite parties.
Ex.A11	22.01.2009	Legal notice of opposite parties & AD cards.
Ex.A12	18.02.2009	Interim reply by opposite parties.
Ex.A13	16.04.2009	Reminder of opposite parties & AD cards.

 

LIST OF DOCUMENTS FILED BY THE OPPOSITE PARTIES 3 AND 4:

Ex.B1		Patient Registration form.
Ex.B2		Admission slip.
Ex.B3		Admission form.
Ex.B4		Admission checklist.
Ex.B5		IP consultation request.
Ex.B6		Operation notes.
Ex.B7		Consultation request.
Ex.B8		Doctor instruction sheet.
Ex.B9		Nursing admission assessment.
Ex.B10		Intraoperative nursing record.
Ex.B11		Pre operative checklist.
Ex.B12		Operation notes.
Ex.B13		Care team rounds.
Ex.B14		General consent.
Ex.B15		Consent for surgery.
Ex.B16		Consent for anaesthesia.
Ex.B17		Consent for lower GI endoscopy.
Ex.B18		OP follow up sheet.
Ex.B19		Case sheet.
Ex.B20		Progress report.
Ex.B21		Department of anaesthesiology.
Ex.B22		Induction assessment.
Ex.B23		Post operative plan.
Ex.B24		Clinical chart.
Ex.B25		Nurses chart.
Ex.B26		Investigation report.
Ex.B27	17.09.2005 & 09.01.2007	Discharge summary.
Ex.B28		Initial patient record.
Ex.B29		Patient registration record.
Ex.B30		Doctor slip.
Ex.B31		Admission slips.
Ex.B32		Admission form.
Ex.B33		Consultation request.
Ex.B34		In patient-case sheet.
Ex.B35		Consent form.
Ex.B36		Investigation chart.
Ex.B37		Nurses chart.
Ex.B38		Medical/surgical oncology case proforma.
Ex.B39		Pre operative checklist.
Ex.B40		Operative notes.
Ex.B41		Day care flow chart.
Ex.B42		In patient-case sheet.
Ex.B43		Clinical chart.
Ex.B44		Treatment chart.
Ex.B45		Nurses chart.
Ex.B46		Progress sheet and doctors order.
Ex.B47		Investigation chart.
Ex.B48		Investigation reports(Sigma clinical laboratory)
Ex.B49		Medindia hospital reports.
Ex.B50		Investigation reports.
Ex.B51		Discharge intimation.
Ex.B52		Discharge summery.
Ex.B53		Copy of the extract form Gastrosphageal Junction Adenocarcinoma.
Ex.B54		Copy of the extract from three- Field Lymphadenectomy for carcinoma of the esophagus and gastroesophageal junction in 174 R0 resection.
Ex.B55		Copy of the extract from journal of experimental and clinical medicine-Isolated seminal vesicle metastasis from gastric adenocarcinoma: First case report.
Ex.B56		Copy of the extract from isolated metastasis vesicle due to colon adenocarcinoma: An unusal patter of Metastasis.
Ex.B57		Copy of the extract from seminal vesicle metastasis after partial hepatectomy for hepatocellular carcinoma.
Ex.B58		Copy of the extract form world journal of clinical cases.

 

MEMBER – I               MEMBER – II                                   PRESIDENT