<br /> COMPLAINT FILED: 29.05.2008<br /> <br /> BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)<br /> <br /> <br /> 05th NOVEMBER 2008<br /> <br /> <br /> PRESENT :- SRI. A.M. BENNUR PRESIDENT <br /> SMT. M. YASHODHAMMA MEMBER <br /> SRI.A.MUNIYAPPA MEMBER <br /> <br /> COMPLAINT NO.1216/2008<br /> <br /> <br /> COMPLAINANTS 1. Nisar Ahmed Zargar,S/o Gulam Moyhiyuddin Zargar,Aged about 58 years.2. Noureen Nazakath Nisar,Daughter of Nisar Ahmed Zargar,Aged about 8 years.Since minorRepresented by her father Nisar Ahmed Zargar1st Complainant.3. Musharaf Tawqeer Zargar,Son of Nisar Ahmed ZargarAged about 6 years,Since minor,Represented by his fatherNisar Ahmed Zargar1st Complainant.Residents of Banigam, Shalimar, Near Meerak Sahib, Srinagar, Kashmir,(Jammu & Kashmir State)Pin – 191121. And also residing at HouseNo.130, 5th Main, 15th Cross,2nd Block, R.T Nagar,Bangalore – 560 032.Advocate – Sri.M.K.ShariffV/s.<br /> OPPOSITE PARTIES 1. Dr.Sarala Krishnamurthy,MD FCAP,Consultant Pathologist,Church of South India Hospital,Hazarath Kambal Posh Road,Bangalore – 560 051.Advocate – Sri.S.R.Ravi Prakash2. Church of South India Hospital, Karnataka Central,Dioccese Post Bag No.4,Hazarath Kambal Posh Road,Bangalore – 560 051. Represented by its Administrator. Advocate – Sri.Achyuth Ajitkumar<br /> <br /> O R D E R<br /> <br /> <br /> This is a complaint filed U/s. 12 of the Consumer Protection Act of 1986 by the complainant seeking direction to the Opposite Party (herein after called as O.P) to pay a compensation of Rs.19,98,000/- on an allegations of deficiency in service and medical negligence. <br /> <br /> The brief averments, as could be seen from the contents of the complaint, are as under:<br /> <br /> Wife of the complainant No.1 and mother of complainant No.2 & 3 Mrs.Waseem Unnissa had some Gynic problem leading to excessive bleeding, hence she approached OP.2 hospital for the treatment. One Dr.Arul Mozhi, after examining her advised for “Total Abdominal Hysterecotomy” and the same was conducted on 25.01.2007. At that time the said doctor sent a specimen for the Histopathalogy department headed by the OP.1 for her report, then she was discharged on 30.01.2007. OP.1 submitted her report after conducting some tests, on examining the slides sent to her and opined there is no evidence of malignancy and this is benign variant of the common Leiomyoma. Actually the said report is wrong. After five months or so Mrs.Waseem Unnisa while she was in Srinagar (Jammu & Kashmir) again suffered abdominal pain. She was admitted at Government Medical College Hospital, Jammu and Kashmir in the month of May 2007. A C.T scan was taken at Sheri Kashmir Institute of Medical Science. On the perusal of the scan report it is noticed, “Huge solid mass a Tumour at pelvic lower Abdomin” and it was bleeding on touch to remove the said Tumour. An operation was conducted to remove the same but it did not serve the purpose. When the biopsy was sent for the test and examination Histopathologic report showed “Leimyosarcoma”. If OP.1 examined the said sample and the slides properly she would have detected the said cancer at earlier stage. Because of the carelessness and negligence on the part of the OP.1 in not reporting properly in the month of February 2007 for no fault of her Mrs.Waseem Unnisa was forced to under go several tests and operations. As she suffered the cancer she has taken treatment not only at Jammu & Kashmir but at Bangalore also from various hospitals like Santosh Hospital, M.S.Ramaiah Hospital, Manipal Hospital and Shifa Hospital. All these hospital reports clearly goes to show that she was suffering from cancer. Ultimately she died of the cancer on 31.10.2007. Complainants for no fault of theirs were forced to spend a lot to save the life of their beloved. Unfortunately they could not. It is all because of the medical negligence and wrong report submitted by the OP.1. Thus complainant felt deficiency in service as well as medical negligence on the part of the OP’s. Under the circumstances they are advised to file this complaint and sought for the reliefs accordingly.<br /> <br /> 2. On appearance, OP.1 & 2 filed their version. The defence set out by both the OP is almost same and identical. It is contended by the OP that OP.1 is an internationally famous and experienced, highly qualified well-known Pathologist with a professional experience of more than 40 years in the field. She has examined said sample thoroughly and gave her report. There is nothing wrong in her report. The specimen and the slides which were sent to her for pathological report was examined not only once but to be on safer or side it was reexamined by adopting all the accepted procedure and practice followed under the medical field. Ultimately a correct and true facts were narrated under the report. So there is no negligence on the part of the OP.1. The malignant transformation of Leiomyosarcoma with Leiomyoma is extremely rare. The disease if any will spread to the other organs immediately if not brought under control. The so called reports relied upon by the complainants alleged to have been obtained from Jammu & Kashmir hospital, Bangalore M.S Ramaiah Hospital, Manipal Hospital and other hospital are after the lapse of more than 6 – 7 months from the date of sample examined by the OP.1 and the specimen that was taken by the doctors of the various hospitals is from “globular swelling” on the greater omentum. The slides referred to by the said hospital and pathologists are different from the slides examined by the OP.1 and are also of different point of time. Actually the wife of the complainant No.1 died of respiratory disorder not of cancer. There is no reported evidence of any metastasis having occurred. The report given by the OP.1 is not reviewed by any other expert nor there is any contra opinion given by the expert in the field as against the report of the OP.1. Under such circumstances there is no negligence on the part of the OP.1 nor on the part of the OP.2. The other allegations of complainant are all baseless. Hence OP are not liable to pay any compensation. Complaint is devoid of merits. Among these grounds, OP prayed for the dismissal of the complaint.<br /> <br /> 3. In order to substantiate the complaint averments, the complainant filed the affidavit evidence and produced some documents of various hospitals. OP.1 has also filed the detailed affidavit evidence along the documents. Except the evidence of complainant No.1 no other corroborative evidence including that of the expert is filed. No cross-examination is offered to OP.1, no interrogatories are served. Then the arguments were heard.<br /> 4. In view of the above said facts, the points now that arise for our consideration in this complaint are as under:<br /> <br /> Point No. 1 :- Whether the complainant has Proved <br /> the deficiency in service on the part of <br /> the OP?<br /> <br /> Point No. 2 :- If so, whether the complainants are <br /> entitled for the relief’s now claimed?<br /> <br /> Point No. 3 :- To what Order?<br /> <br /> <br /> 5. We have gone through the pleadings of the parties, both oral and documentary evidence and the arguments advanced. In view of the reasons given by us in the following paragraphs our findings on:<br /> <br /> Point No.1:- In Negative<br /> Point No.2:- Negative<br /> Point No.3:- As per final Order.<br /> <br /> <br /> R E A S O N S<br /> <br /> 6. It is the case of the complainant that wife of the complainant No.1 and mother of complainant No.2 & 3 Mrs.Waseem Unnisa had some problem with regard to excessive bleeding hence she approached OP.2 hospital for the treatment in the month of January 2007. One Dr.Arul Mozhi, HOD of “Obstetrics and Gynecology” on examining her advised for ‘Total Abdominal Hysterecotomy” and conducted the said operation on 25.01.2007. After the operation he has sent certain slides and the specimen for Histopathology report headed by OP.1, thereafter she was discharged on 30.01.2007. These facts are not at dispute. It is further contended by the complainant that on 02.02.2007 OP.1 submitted her report, wherein she has mentioned (i) There is no evidence of malignancy (ii) This is benign variant of the common Leiomyoma. According to the complainants the said report dated 02.02.2007 is wrong, it is submitted without conducting the proper tests on the blocks and slides containing cells of the patient after operation as contemplated.<br /> <br /> 7. It is further contended by the complainants that after 4 months when she was in Srinagar (Jammu and Kashmir) she again experienced Abdominal Pain. Hence approached Government Medical College, Hospital, Jammu & Kashmir for treatment in the month of May 2007 that is nearly after 4 months from the first surgery, she was subjected to C.T Scan. At that time it was noticed presence of “Huge solid Mass Tumour between Pelvic and lower Abdominal, Tumour was bleeding on touch. A biopsy was taken, it was sent to Sheri-Kashmir Institute of Medical Science, Srinagar. Thereafter an operation was conducted on 08.06.2007 but the purpose was not served as they are unable to remove the tumour. Hence she was discharged on 13.06.2007 since then she was almost at bed rest.<br /> <br /> 8. It is further contended that the Histopathological report received by the said Institution disclosed features of Leimyosarcoma (Cancer). It is alleged by the complainants that if OP.1 reported the said matter earlier in the month of February 2007 they would have got treated their beloved with a proper medication and would have got saved her life. Because of the wrong report and carelessness of the OP.1 ultimately they lost Mrs.Waseem Unnissa. Hence they felt the deficiency in service on the part of the OP.<br /> <br /> 9. According to the complainants when they came to know of the said cancer they again brought her back to Bangalore in the month of June 2007. At this stage it can be observed that the first opinion of OP.1 dated 02.02.2007 is not at all disputed or denied by Dr.Arul Mozhi Who conducted the first surgery. The other Pathologist who traced the said tumour and the cancer have not filed their affidavit including that of the doctors who conducted the surgery, reasons not known. On 23.06.2007 she was admitted at Santosh Hospital, Bangalore for breathlessness fluid was drained, she was referred to sonography. With all that she was discharged. Then on the same day she was admitted in M.S.Ramaiah Hospital for second opinion. On 28.06.2007 MRI was taken at Elbit Diagnostic Center and some biopsy of the said tumour was sent to the Histo-pathology Department. One Dr.Manjunath of the said hospital again reported presence of “Leiomyosarcoma” (Grade II, III). The affidavit of the said Dr.Manjuanth is not filed.<br /> <br /> 10. After the receipt of the said report Chemotherapy treatment was started, 4 courses were given, an MRI report was obtained on 06.09.2007. Then suddenly she was shifted to Manipal Hospital, Bangalore. One Dr.Suresh Chandra, Pathologist who examined the said sample gave his report, then Dr.Shabeer, Dr.S.Zaveri from Surgical Oncology department advised for operation. Again the affidavits of the said doctors are not filed. On 11.10.2007 operation was conducted, but they are unable to remove the mass. With all that she was discharged on 23.10.2007. When she felt discomfort she was again admitted on 27.10.2007 for palliative treatment, then discharged on 30.10.2007.<br /> <br /> 11. When the said hospital and its doctors are aware of seriousness of ailment suffered by the complainants wife why they attempted to conduct the operation when they are unable to remove the tumour and why they discharged her without giving appropriate treatment is not known. We fail to understand the reasons behind such hurried discharge every now and then.<br /> <br /> 12. Then again on 30.10.2007 she was shifted to Shifa Hospital, Bangalore for the same palliative treatment. Ultimately on 31.10.2007 she died at 8.00 p.m. Of course the death certificate produced by the complainant does not disclose the cause of death. We have gone through the other medical records and documents produced by the complainant. All those documents and the reports of various pathologist on the basis of which complainant want to through the blame and burden of OP.1 do not disclose that the test conducted by the OP.1 report given by her on examining the slide and specimen sent to her was wrong. On the other hand on examination of the said Histopathological reports of various hospital like Shere Kashmir Institute, Manipal Hospital they refer to different slides. Manipal Hospital reports referred to specimen with receipt No.6959 and slide of Shere Kashmir Institute refers to No.S-3268/07. Whereas the slide examined by the OP bears the No.35/07.<br /> <br /> 13. It is also not at dispute that the biopsy and the specimen taken over by the above said two hospitals is from the ‘globular swelling’ on the greater omentum that too after a lapse of 5 – 6 months. So it can safely be concluded that those two reports are based on different specimen provided to them at different point of time. Under such circumstances it can’t be held that the reports of Shere Kashmir Institute and Manipal Hospital are against to the observation report, test conducted by OP.1. As already observed by us nobody has said that the report given by the OP.1 is wrong. Under such circumstances in absence of the expert evidence in the field to support the allegations of complainant their bare and vague allegations rather alone can’t be believed without sufficient corroborative evidence from the competent witnesses.<br /> <br /> 14. The fact that OP.1 is an internationally famous experienced, highly qualified, well known pathologist having put in profession on service of more than 40 years and attended various conferences held at international level submitted articles in national and international journals on the subject of pathology is not at dispute. As it is there is no personal ill will or grudge between the OP.1 and the patient so as to give a wrong report. We have already observed that the test conducted, procedure followed by the OP.1 while submitting that report are accepted norms as could be seen from the text and literature noted in medical sciences. To be on safer side OP.1 has reexamined the said slides with all modern facilities, equipments and infrastructure and come to the final conclusion. Under such circumstances that report can’t be said as wrong.<br /> <br /> 15. In the instant case the tumour showed characteristics of atypia, no mitotic figures which are indicative of malignancy were seen. Further the text revels that both Leiomyoma and Leiomyosarcoms contains a low mitotic index. The malignant transformation of Leiomyosarcoma within a Leiomyoma is extremely rare. This observation and conclusion is not denied by any other expert on behalf of the complainant. It is also not at dispute that Metastasis from one organ spread to another adjacent organ or part away from the primary tumour within a span of few days and months can’t be ruled out. Cancer spreads like wild fire within no time. It is also important to note that none of the other pathologists have reviewed the slides sent to the OP.1 and given their different opinion. <br /> <br /> 16. Under such circumstances the allegations of the complainant that there is a carelessness and medical negligence on the part of the OP.1 and that she gave a wrong report on 02.02.2007 rather does not hold much force. It is also important to note that the cause of death of Mrs.Waseem Unissa is unlikely to be cancer since there has been no report or evidence of any metastasis having occurred nor any of the death certificate supports the said allegation.<br /> <br /> 17. We have closely scrutinized both oral and documentary evidence produced by the litigating parties. On the perusal of the text book of pathology “The distinction of Leiomyosarcomas from Leiomyomas is based on the combination of degree of nuclear atypia, mitotic index and zonal necrosis”. The said text further discloses,<br /> <br /> “Leiomyosarcomas – These uncommon malignant neoplasms arise de novo directly from the Myometrium or Endometrial stroma, which undergoes smooth muscle differentiation. Their origin from a preexisting leiomyoma is a controversial issue and most believe that such occurrences are extremely rare”.<br /> <br /> We have borne in our mind the literature the text pertaining to this case on hand and also various reports relied on by the litigating parties while coming to the just conclusion in this case.<br /> <br /> 18. A Doctor is not guilty of negligence since he acted in accordance with the practice accepted as proper by a reasonable body of medical man skilled in that field. It is known fact that the best skill in the worldly things some time went wrong in medical treatment or surgery operation. A doctor is not to be held negligent simply because something went wrong. There is no evidence to come to the conclusion that the OP fell below the standard of a reasonably competent practitioner in their field.<br /> <br /> 19. The evidence has come that OP has performed the test and acted in accordance with the practice regularly accepted and adopted. Medical negligence is to be established it can’t be presumed. We may observe that there is hardly any cogent material to substantiate the allegation contained in the petition of complainant. Under the circumstances, we cannot but hold that the complainant has failed to prove the allegations against the OP’s. It will not be out of place to mention that doctors only treat whereas it is in the hands of the Almighty to cure.<br /> <br /> 20. No sensible professional would intentionally commit an act or omission which would result in loss or injury to the patient as the professional reputation of the person is at stake. All that we are doing is to emphasize the need for care and caution in the interest of society; for, the service which the medical profession renders to human beings is probably the noblest of all, and hence there is a need for protecting doctors from frivolous or unjust prosecutions also. <br /> 21. The law does not require of a professional that she be a paragon combining qualities of polymath and prophet. A complaint regarding medical negligence should allege and support with expert evidence as to what was done which should not have been done or what was not done which should have been done. But it is missing in this complaint.<br /> <br /> 22. So in view of the elaborative discussions made by us in the above said paras, we find complainants have rather failed to establish the deficiency in service and medical negligence on the part of the OP. As such they are not entitled for the relief claimed. Complaint appears to be devoid of merits. Accordingly we answer point Nos.1 & 2 in negative and proceed to pass the following: <br /> <br /> O R D E R<br /> <br /> The complaint is dismissed. In view of the nature of dispute no order as to costs.<br /> <br /> (Dictated to the Stenographer and typed in the computer and transcribed by him, verified and corrected, and then pronounced in the Open Court by us on this the 05th day of November 2008.) <br /> <br /> <br /> <br /> <br /> MEMBER MEMBER PRESIDENT<br /> <br /> Vln* <br /> <br /> <br />