(Delivered on 29/03/2022)
PER SHRI DR. S.K. KAKADE, PRESIDING MEMBER
1. This is appeal filed by Mr. Tulshiram Vishwanath Bangre who was the original complainant in Consumer Complaint No. CC/78/2013 before the District Consumer Forum (now Commission) at Chandrapur that was decided on 09/04/2015 in which the complaint was dismissed. Aggrieved by this judgment and order the original complainant filed this appeal before the State Consumer Disputes Redressal Commission, Circuit Bench, Nagpur in the year 2015.
2. Brief facts of this appeal are as follows.
The original complainant consulted the opposite parties i.e Doctors mainly the O.P. No. 2- Dr. Vivke Kokne in O.P. No. 1- Christanand Charitable Trust Hospital, Bhamhapuri. According to the consultation the O.P. No. 2- Dr. Vivek Kokne operated upon the complainant on 08/08/2012 and during operation excised the tumor-lump of left thigh of the complainant. During this operation, the O.P. No. 2- Doctor removed 6 centimeter sciatic nerve along with tumor. In the post operative period the patient suffered from loss of sensation and power of left leg. Since, the pathological medical report which was given by the O.P.No. 3/respondent No. 3 who is pathologist that the tumor was liposarcoma, kind of cancer, the patient was referred to respondent No. 4 who is Oncologist who administered the Chemotherapy as the treatment of the Cancer. Further due to difficulty in walking after the operation the complainant /appellant consulted doctor at Vellore Christian Medical College where histopathology of tumor excised from the left thigh of the complainant was reexamined and it was stated that there was no definite evidence of cancer in the tumor tissue. Meanwhile at Meditrina Hospital at Nagpur operation was performed on the patient to repair the cut and excised sciatic nerve, the patient continued to have for disability in walking and also had to spend for treatment expenditure Rs.18,30,000/- while consulting various doctors and hospitals. Aggrieved by wrong information and consultation given to the patient that the patient was suffering from cancer to left thigh (which proved to be wrong later ) and performing operation with deficiency, negligence in which 6 centimeter of sciatic nerve was cut the same was repaired in the second operation later on. As it was diagnosed as cancer, the patient also received six doses of Chemotherapy which was not necessary. The complainant filed the complaint before the learned District Consumer Forum (now Commission), Chandrapur.
3. Opposite parties, O.P.No.1–Christanand Charitable Trust Hospital, Bramhapuri, O.P.Nos.2,3&4 are treating doctors. O.P.No. 2- Dr. Vivek Kokne, Surgeon, O.P. No. 3- Dr. R. Ravi , Pathologist and O.P.No. 4 - Gupte Cancer Clinic, Shrivardhan Complex, Nagpur as Oncologist. Respondents in this appeal/original opposite parties opposed this complaint by filing written statements before District Forum and denied all the allegations by the complainant.
4. Considering the submissions and documents on record, the learned District Consumer Forum (now Commission), at Chandrapur dismissed the complaint after coming to the conclusion that there was no medical negligence and deficiency in service by the O.Ps.-doctors. Aggrieved by this judgment and order passed by the learned District Consumer Forum, Chandrapur the original complainant filed the appeal against the order before this Commission.
5. We heard learned advocates of both the parties and perused the documents referred by the learned advocates of both the sides.
6. As per learned advocate for the appellant who admitted all the facts that were stated by the complainant - appellant in this appeal. As per submission of the learned advocate for the appellant, the operation was performed on the appellant / the original complainant –the patient on 07/08/2012 for removal of lump in left thigh in which along with lump 6 centimeter Sciatic nerve was also excised with a resulted in nuroparaletic condition - foot drop. Further, since the pathologist gave report that it well differentiated liposarcoma. The appellant/original complainant also received chemotherapy (cancer drug) from the Oncologist. When consulted at Christian Medical College, Vellore, the experts at Christian Medical College, Vellore opined that there was no cancer in the lump which was excised and which came to the light that along with lump piece of sciatic nerve was also excised for which second operation was to be performed for repairing the sciatic nerve. According to the learned advocate for the appellant, the true facts of the patient and details and operation were not informed by the respondent No. 2 who operated upon the patient. Due to wrong diagnosis of the tumor and wrong operation in which sciatic nerve piece was excised. Above all cancer drugs were given to the patient by the Oncologist- respondent No. 4. All of these show that the respondents- doctors were negligent in performing their duties and hence, appellant/original complainant suffered physically and mentally and had to spend money for the treatment. Regarding the judgment and order passed by the learned District Consumer Forum, Chandrapur, the advocate for the appellant submitted that the learned Forum did not consider the deficiency in service by each of the doctors and wrongly dismissed the complaint. Hence, learned advocate for the appellant prayed for setting aside the order passed by the learned District Consumer Forum (now Commission), Chandrapur.
7. Learned advocate who appeared for the respondent Nos. 1 to 4 Hospital and doctors, invited the attention of the bench, that the patient did not follow up though he was advised( reference page No. 38) and thus submitted that the complainant did not come for follow up at all. Also the learned advocate invited attention of the Bench to page No. 46 on which review by Christian Medical College, Vellore, and Medical Oncology Department mentions that “however atypical lipomatous tumor cannot be excluded”. This finding is important while stating that there is no cancer in the tumor of patient. Further invited the attention of the Bench to the affidavit filed by the expert- Dr. Dipak Deshmukh, Minimal Access & General Surgeon, Cancer Surgeon, working at Nagpur who after going through the documents and reports opined that there is confirmed diagnosis of cancer and so saving patient life was important, hence, the operation was done accordingly. Thus, according to Dr. Dipak Deshmukh there was no negligence in the treatment given to the appellant /original complainant by the respondent/original O.P.No. 2.- Dr. Vivek Kokne. Further there are affidavits of the hospital staffs who were involved in the treatment of the patient that supported the doctor who operated upon the patient. According to the learned advocate for the O.P. Nos. 1&2/respondent Nos. 1&2, the learned District Consumer Forum has rightly observed that there is no deficiency in service and medical negligence while treated this patient.
8. In support of the contentions learned advocate for the appellant referred to the following judgments and rulings.
i. All India Institute of Medical Sciences (AIIMS) Vs. Ayesha Begum, reported in IV(2010) CPJ 112 (NC)
ii. Chaithanya Nursing Home & Anr Vs. P. Puttaraju & Ors., reported in II(2013) CPJ 456 (NC)
iii. Bhiwani Dutt Vs. Nehru Hospital of Post Graduate Institute of Medical Education & Research, Chandigarh and Anr., reported in 1998(1) CPR 1.
9. The learned advocate for the respondent Nos. 1&2 also referred to the judgments and rulings as follows.
a. P. Balaram Vs. Dr. J. Lakshmana Rao, reported in 2013 NCJ 2169 (NC)
b. Kusum Sharma and Ors. Vs. Batra Hospital and Medical Research Center and Ors., reported in AIR 2010 Supreme Court 1050.
c. Jacob Mathew Vs. State of Punjab and Anr., reported in AIR 2005 Supreme Court 3180.
d. S.P. Chengalvaraya Naidu (dead) by L.Rs. Appellant Vs. Jagannath (dead) by L.Rs. and other respondents, reported in AIR 1994 Supreme Court 853
e. Vinod Jain Vs. SAntokba Durlabhji Memorial Hospital and Anr., reported in AIR Online 2019 SC 111.
10. We have heard submissions made by the learned advocate representing both the parties and perused the record.
11. On observing the medical records filed by the parties on record. The appellant was treated at Christanand Charitable Trust Hospital, Bramhapuri by Dr. Vivek Kokne. Reference page No. 116 the consent obtained from the patient is pre printed consent (i.e. stamp). Rubber stamps prepared for consent on High Risk Consent , B’s Consent and Self Consent in which the patient and patient wife have signed but contents of these consents are that “I am willing to get this operation done under relevant anesthesia and in high risk consent, the consent of wife is obtained in which there is information about the possibility of life threatening complication. Further ,the operation notes on page No. 117. The procedure is written as “Wide Local excision with excision of mass enblock with 2 cm normal margin with involved vessels and nerves done”. The same does not mention about excision of 6 cm. of sciatic nerve also the consent obtained does not mention the complication of this operation that likely to happen during operation. In fact according to the documents the sciatic nerve injury was not detected by the treating doctors and was only about detecting one month of another doctor who advised repair of sciatic nerve. Further Histopathology report submitted at annexure 4 page No. 39 given diagnosis as “Atypical Lipoma favors Well differentiated liposarcoma. Further treatment received at Cancer Clinic of Dr. Smita Gupte who was Oncologist and Chemotherapy (cancer drug) administered to the appellant /original complainant, reference annexure No. 8, page No. 45. At Christian Medical College, Vellore, Medical Oncology Department when consulted on 24/01/2013 opined that there was no definite evidence of high grade sarcoma. However atypical lipomatous tumor cannot be excluded and also advised the repair of sciatic nerve.
12. Further on record there is certificate along with affidavit by Dr. Dipak Deshmukh who is Minimal Access & General Surgeon and Cancer Surgeon stating that after studying the documents the treatment given and the level of expertise shown by the treating doctor is reasonable . Dr. Dipak Deshmukh is Director of Suretech Hospital and Research Center. The respondent Nos. 3&4 in affidavit before the District Consumer Forum, Chandrapur stated that this was the patient at risk, as Histopathology Report as atypical lipomatous tumour was favoring the cancer which is liposarcoma. In view of the Histopathology Report the same was confirmed by Christian Medical College, Vellore, Oncology Department. Further O.P. No. 4 administered Chemotherapy to the appellant /original complainant.
13. Further as per submissions by the learned advocate for the respondent Nos. 3&4 due to Chemotherapy given by the respondent No. 4 the patient was cured and hence, there was no negligence by the respondent No. 4. There is a report and affidavit of Dr. Pradeep Umap, M.D. Pathology, Associate Professor in Pathology, I.G. Government Medical College, Nagpur that supports the Histopathology diagnosis done by the respondent No. 3 and reported by Christian Medical College, Vellore as atypical Lipomatous lesion are one and same. This certificate are also mentions the reference of medical literature from Rosai and Ackeman’s Surgical pathology 10th edition can be labeled as well differentiated Liposarcoma.
14. After considering the submissions made by the learned advocate for the appellant and respondent Nos. 1&2 and respondent Nos. 3&4. On perusal of documents filed on record, the expert opinion filed by the respondent Nos. 1&2/O.P.Nos.1&2. The Commission explored the role of respondent Nos. 1&2 i.e. the Hospital where the patient was treated and Surgeon who was operated upon the patient. The medical record submitted by the respondent Nos. 1&2 shows that the consent obtained for the operation was not “Informed Consent”. The appellant /original complainant - patient who did not receive proper information about the operation to be performed and likelihood of possible complication of the operation. It is also noted that according to the operation notes written by the respondent No. 2 who is a Surgeon did not notice the injury i.e. excision of the piece of sciatic nerve as it is not noted in the operation notes. Further the appellant did not receive the post operative instructions. According to the injury of sciatic nerve though at one place heaviness of left limb was mentioned as complaint by the patient. In our view the operating Surgeon should have obtained inform consent and also he should have noticed the injury to the Sciatic Nerve and accordingly the necessary information should have been given to the patient as well as relatives. The operating surgeon failed to note this and hence the Commission observes that there was deficiency in service provided by the operating surgeon and the Hospital in which surgery was performed
15. Since, the Histopathology Report given by the pathologist who is respondent No. 3 was almost confirmed at Cancer Department of Christian Medical College, Vellore. The respondent No. 4 who is Oncologist gave Chemotherapy treatment to the appellant /original complainant. In our view both the respondent Nos. 3&4 performed their duties in accordance with the reports which they received and hence, there is no negligence or deficiency in service in providing treatment to the appellant/ original complainant. In view of this discussion the Commission thinks it proper to award compensation to the appellant/original complainant to be paid by the respondent Nos. 1&2 only who were original O.P. Nos. 1&2. Since the learned District Consumer Forum (Now Commission), Chandrapur while passing the order did not consider the above facts and documents, we think it proper to set aside the order passed by the learned District Consumer Forum (now Commission) at Chandrapur. Hence, we pass the following order.
ORDER
i. Appeal is partly allowed with cost a quantified to Rs. 25,000/- to be paid by the respondent Nos. 1&2 jointly and severally to the appellant.
ii. The order passed by the learned District Consumer Forum (now Commission), Chandrapur is hereby set aside.
iii. The respondent Nos. 1&2 are hereby directed to reimburse the treatment expenditure Rs. 3,75,000/- at Christian Medical College, Vellore and treatment expenditure at Meditrina Institute of Medical Science Nagpur Rs. 4,25,000/- along with @ 9% p.a. interest from the date of filing of complaint at District Consumer Forum, Chandrapur.
iv. The respondent Nos. 1&2 are hereby directed to pay Rs. 5,00,000/- jointly and severally towards the compensation to be paid to the appellant towards physical and mental harassment and loss of income
v. There is no order against the O.P. Nos. 3 & 4.
vi. The above order to be complied by the respondent Nos. 1&2 jointly and severally within a period of two months from the date of this order, failing which the interest at the rate of 12% p.a. will be levied till realization.
vii. Copy of order be furnished to both the parties, free of cost.
