CONSUMER DISPUTES REDRESSAL FORUM – X
GOVERNMENT OF N.C.T. OF DELHI
Udyog Sadan, C – 22 & 23, Institutional Area
(Behind Qutub Hotel)
New Delhi – 110 016
Case No.1473/2005
SH. PRADEEP KUMAR GOENKA
S/O SH. P.C. GOENKA
FLAT NO.805M SHANTI VAN APARTMENTS
PREMISES NO.2-A/24A AZADPUR, KANPUR
…………. COMPLAINANT
Vs.
- THE DIRECTOR
BATRA HOSPITAL PVT. LTD.,
HAMDARD NAGAR,
M.B. ROAD, NEW DELHI-110062
- DR. SAPNA NANGIA
BATRA HOSPITAL PVT. LTD.,
HAMDARD NAGAR, M.B. ROAD, NEW DELHI-110062
- DR. D. MALHOTRA,
RADIOLOGIST,
BATRA HOSPITAL PVT. LTD.,
HAMDARD NAGAR, M.B. ROAD, NEW DELHI-110062
- NEW INDIA ASSURANCE CO. LTD.,
19 COMMUNITY CENTRE,
NEW FRIENDS COLONY,
NEW DELHI-110065
- NATIONAL INSURANCE CO. LTD.
DIVISION NO.25,
C-6, SOUTH EXTENSION PART-I,
GURUDWARA ROAD, NEW DELHI-110049
- THE ORIENTAL INSURANCE CO.
JAIN BHAVAN, 12,
S. BHAGAT SINGH MARG,
GOLE MARKET, NEW DELHI-110001
…………..RESPONDENTS
Date of Order:28.03.2016
O R D E R
A.S. Yadav- President
Complainant’s mother was having lung cancer. She was initially treated by Dr. Adwani at Mumbai. However due to the condition of the patient, visit to Mumbai was not possible every time hence complainant took his mother to Batra Hospital Pvt. Ltd.(OP-1) to have a check up at OPD on 12.06.2001. OP-2 examined the patient and suggested Palliative Radiotherapy to check the growth of Lymph node immediately and the complainant made the doctor aware that the physicians at Kanpur had expressed their doubts regarding radiotherapy, as it may not improve the condition and rather cause several side effects but the OP-2 insisted and reiterated her stand. OP-2 assured the complaint about the said therapy and suggested that no admission is required in the hospital and the patient has to visit for a fixed time of 20 to 30 minutes and there shall be 10 exposures to the radiotherapy.
It is further stated that the first exposure of radiotherapy was conducted on 12.06.01 from 2 p.m. to 4 pm. On the same night, the patient was very restless at home due to heavy pain and breathlessness. On 13.06.01 the condition of the patient on the previous night was explained to the doctor. Second therapy was given at 2 P.M. and after the same, breathing problem of the patient further aggravated and the doctors insisted for admission of the patient in the hospital. During the test conducted in the hospital, the blood pressure and sugar both were found on a very high level i.e. 120/180 and sugar level was 330. In fact earlier to that patient had no problem of sugar and blood pressure throughout her life.
It is further stated that whenever complainant made enquiries about the condition of patient, he was assured that stay will not be for long time and also assured that patient is improving and shall become absolutely healthy. The doctors deliberately misguided the complainant by suppressing the fact of the seriousness of the patient in order to make money from the innocent public which has become common practice nowadays. On 16.06.01 the condition of patient became extremely critical and when complainant complained, he was informed that patient was administered Cobalt Radiation and the condition of patient was deteriorating. Taking into consideration the critical condition of the patient, the doctors recommended for Doppler test and Ultrasound which was scheduled at 3 P.M. When patient was taken to the laboratory for the said test, Doppler test was refused by Dr. D. Malhotra stating that there is no time for the patient as other patients were waiting. The said lapse of refusal to conduct Doppler test by Dr. D. Malhotra had resulted in further deterioration drastically. The said fact was complained by complainant to the Superintendent of OP-1 who assured complainant to look into the matter but finally no action was taken against the negligent and hostile behaviour of Dr. D. Malhotra.
It is further stated that ultimately when the condition of patient became very critical, complainant requested for the discharge of the patient and patient was discharge don 30.06.2001 and finally the patient expired in Kanpur on 06.07.2001. It is prayed that OP be directed to repay the expenses incurred towards treatment of his mother i.e. Rs.93,597/- alongwith interest @ 24% p.a. and also to pay Rs.4 lakhs towards compensation.
OP-1 to OP-3 in their reply took the plea that instant complaint is frivolous in nature. Complainant was fully satisfied with the treatment given to his mother at OP-1 hospital by OP-2 and OP-3. Dr. H.K. Chaturvedi was with the cancer department of OP-1 and was looking after treatment of the patient nin September 2000. Complainant vide letter dated 12.07.2001 made following communication to Dr. H.K. Chaturvedi:-
“My Dear Dr. Harit
I hope this finds you in the best of your health and spirit.
I am writing you to express my sincere thanks and deep gratitude for your very kind disposition and care taken by you of my mother during our stay at Batra Hospital.
I regret to inform you that inspite of your best efforts she could not survive and passed away on 6th July, 01. I tried to contact you on phone but could no get through. I left the message on your mobile phone.
Any way all of us were prepared for this, may be now or at a future date. But I really feel highly obliged for the pain take by you.
Please do advise if I can be of any service to you’re her at UNP.
Regards
Sincerely yours,
Pradeep”
It is stated that on 12.06.01 patient was examined by OP-2 in the Oncology OPD. That history was supplied by Dr. Usha Goenka who introduced herself as a Consultant Gynaecologist working in Kanpur. She was referred to OP-1 hospital by Dr. H.K. Chaturvedi, Consultant Oncologist working at Indraprastha Apollo Hospital. She has earlier been admitted to this hospital on 18.9.2000 and was examined by Dr. H.K. Chaturvedi. Diagnosis of stage IV Ca long was made in Sept. 2000 itself i.e. 9 months before the patient was seen by OP-2 following biopsy the patient and HPE slide was seen at Jaslok hospital.
It is stated that the patient with extra thoracic disease at presentation generally have life expectancy of 3-4 months. In most case, the presence of advanced local disease r metastasis gives rise to distressing symptoms. The use of palliative radiotherapy may greatly improve the quality of remaining life. The patient then underwent palliative (non curative) chemotherapy with Inj. Docetaxel and Inj. Gemcitabine. The patient tolerated the chemotherapy poorly and required admission for severe chest pain in Jan 2001. In May the patient CT and Jan 2001. Further, chemotherapy was abandoned because of progressive disease and the patient advised to seek supportive and symptomatic treatment. No chemotherapy was undertaken from Jan-May 2001. In May 2001, the patient developed a nodular swelling on the left side of neck. The CT neck and CT chest showed the patient was suffering from advanced stage IV Ca lung. Her treatment with chemotherapy had been stopped after 3 cycles due to progression of disease in Jan 2001 i.e. 6 months before the patient reported to this hospital.
It is stated that the patient was examined in the outpatient clinic of the OP-1 on 12.6.02 at 1.00 p.m. It is further stated that the risk and benefits were explained to the patient and her daughter-in-law Dr. Usha Goenka, who signed a consent from before initiation of therapy. In advanced stage IV ca lung where only palliation is the goal, no guarantee of positive impact of therapy can be given but the intent is to provide relief. At the time of the admission blood pressure BP of the patient was 134/88 and BS 333 mg. The raised BP and sugar are closely side effect of steroids.
It is stated that the standard medical treatment was administered to the patient which has been detailed in the reply. The patient was examined by different doctors. The entire medical record has been placed. It is stated that there is no negligence on the part of OP-1 to OP-3. It is prayed that the complaint be dismissed.
The other OPs are the insurance companies.
We have heard Ld. Counsel for OP-1 to OP-3 and carefully perused the record.
It is not in dispute that earlier the patient was examined by Dr. H.K. Chaturvedi in Batra hospital and after the death of complainant‘s mother, complainant wrote a letter to Dr. H.K. Chaturvedi.
This letter was written on 12.07.01 by complainant after the death of his mother wherein he has nowhere stated that there was any negligence on the part of treating doctors.
Here it is useful to refer to case of Martin F D’souza Vs Mohd. Ishfaq 1(2009) CPJ 32 (SC) where Hon’ble Supreme Court in para 117 directed that - whenever a complaint is received against a doctor or hospital by the Consumer Fora(whether District, State or National) or by the Criminal Court then before issuing notice to the doctor or hospital against whom the complaint was made the Consumer Forum or Criminal Courts should first refer the matter to a competent doctor or committee of doctors, specialized in the field relating to which the medical negligence is attributed, and only after that doctor or committee reports that there is a prima facie case of medical negligence should notice be then issued to the concerned doctor/hospital. This is necessary to avoid harassment to doctors who may not be ultimately found to be negligent. We further warn the police officials not to arrest or harass doctors unless the facts clearly come within the parameters laid down in Jacob Mathew’s case(supra), otherwise the policemen will themselves have to face legal action.
In order to ascertain as to whether there was any negligence on the part of treating doctors of OP-1, the matter was referred to the Medical Superintendent, LNJP hospital, New Delhi to seek the expert opinion and record was sent there. Medical Board was constituted and the Medical Board submitted its report which is reproduced as under:-
“Summary
The patient Late Smt. Bimla Devi was diagnosed with caner of lung in the year September 2000. It was staged as T4 N3 M1 with pleural effusion. Scalene node biopsy conformed it as well differentiated squamous cell carcinoma; CT Scan revealed left lung lesion with hilar lymph adenopathy; Bone Scan indicated multiple lymph node metastasis in bone. Slide review at Jaslok Hospital showed metastatic carcinoma.
She was put on combination chemotherapy. After receiving three clcles she developed pericardial effusion. The fluid taken out form it was positive for malignant cells. She also came up with new neck nodes on left side. CT scan done on 06/01/2001 revealed mediastinal lymph nodes with partial tracheal encasement and bilateral pulmonary metastasis with bilateral pleural effusion an pericardial thickening. In view of this palliative radiotherapy was planned at Batra Hospital.
Following which she got admitted again for complaint of shortness of breath. On evaluation her blood sugar level was high, which may be related of administration of steroids, condition of disease and preexisting diabetes, no details are available. High blood sugar recovered on suitable treatment.
Opinion
The treatment given as per available record is standard protocol. On perusal of CT Scan report only (No films available), the disease was advanced with involvement of heart, bones, encasing trachea lymph nodes and other lung This required palliative radiotherapy to control her symptoms from advanced disease, which carry a poor prognosis otherwise.
Conclusion
On the basis of available records it appears that she was suffering from advanced disease of carcinoma of lung involving heart, mediastinal lymph nodes, other lung and bones. She was given palliative radiotherapy to control her symptoms form disease, as per standard practices. The adverse effects appeared subsequently to radiotherapy. All the suitable measures, which are required under such circumstances were done (as mentioned in the record).”
On the face of it is very much clear that there was no negligence on the part of OP-1 to OP-3.
In fact the Hon’ble Supreme Court in case of Jacob Mathew Vs State of Punjab & Anr., III (2005) CPJ 9(SC)=III(2005) CCR 9 (SC)=VI (2005) SLT 1=122 (2005) DLT 83 (SC) = (2005) 6 SCC 1 - held that essential components of negligence as recognized, are three “duty”, “breach” and “resulting damage”, that is to say:-
“1) The existence of a duty to take care, which is owned by the defendant to the complainant;
- The failure to attain that standard of care, prescribed by the law, thereby committing a breach of such duty; and
- Damage, which is both casually connected with such breach and recognized by the law, has been suffered by the complainant. If the claimant satisfies the Court on the evidence that these three ingredients are made out, the defendant should be held liable in negligence.”
In fact complainant has not proved anything on record to suggest that there was any negligence on the part of OP-1 to OP-3.
It is also useful to refer to case of Baidya Nath Chakraborty (Dr.) & Ors. Vs Chandi Bhattacharjee & Ors. II (2014) CPJ 601 (NC) – held that doctor cannot be held negligent if he has acted in accordance with recognized practice accepted as proper by responsible body of medical men, skilled in that particular field, even though there may be body of opinion that takes a contrary view. Nevertheless, if doctor professes that he is specialist, possessing some special skills to deal with particular ailment or condition he is expected to exercise higher degree of care than general practitioner, whose conduct is to be judged on different parameter.
Complainant has failed to prove negligence on the part of OP-1 to OP-3. Hence the complaint is dismissed.
Copy of order be sent to the parties, free of cost, and thereafter file be consigned to record room.
(D.R. TAMTA) (A.S. YADAV)
MEMBER PRESIDENT
