(Delivered on 10/02/2023)
PER SHRI A. Z. KHWAJA, HON’BLE PRESIDING MEMBER.
1. Complainant – Mr. Kamalnayan Petkar has preferred the present complaint under Section12 of the Consumer Protection Act, 1986.
2. Short facts leading to the present complaint may be narrated as under:-
Complainant Mr. Kamalnayan Petkar claims to be resident at Hinganghat, District Wardha and was working as Conductor with M.S.R.T.C. The opponent No. 1 is Mahatma Gandhi Institute of Medical Sciences, Sewagram, and is running Kasturba Hospital, at Sewagram. Complainant- Kamalnayan Petkar was suffering pain in the stomach and was also having trouble in the Hydrocil and so he approached the Kasturba Hospital run by the O.P.No. 1 on13/01/2012. The O.P. thereafter advised the complainant to get hospitalized and accordingly complainant got admitted in Kasturba Hospital. The O.P. thereafter carried out investigation and diagnosis as well as carried out pathological test of the complainant by insertion of needle through rectum of the complainant. After conducting investigation the O.P. has informed the complainant that he was suffering from prostate cancer. The O.P. also informed the complainant that he will undergo hydrocil surgery and major operation will have to be performed. The complainant has contended that he was having faith on the O.P.Nos. 2&3 and therefore agreed to undergo the treatment. The complainant has contended that after every 8-10 days he was called by the O.P. No. 2&3 in the radiation department of Kasturba Hospital for treatment of cancer. The complainant has contended that he attended radiation department for more than 35 times. The Complainant has contended that prior to the radiation his health was very sound but after treatment of radiation was given his health started declining. The complainant has contended that the O.P. informed that he was suffering from cancer and so treatment of cancer was being provided. There was deficiency of blood in the body of the complainant and therefore infusion of blood will be required. The complainant has contended that complainant had to time and again arrange for blood donor for infusion of blood. According to the complainant he was working as a Conductor in the M.S.R.T.C and was aged 54 years and therefore 4 years of service left before retirement. The complainant has taken a plea that since he needed 12 month of leave for cancer treatment , he applied for leave but he was asked to produce the certificate from the Rashtrasant Tukadoji Cancer, Hospital and Research Centre, Nagpur regarding his ailment of cancer. When the complainant visited the Rashtrasant Tukadoji Cancer, Hospital and Research Centre, Nagpur, the concerned senior doctor examined the complainant and informed that the complainant was only suffering from hydrocil and was not having any kind of cancer. The complainant has taken a plea that after learning of this fact he suffered a nervous breakdown as he had under gone long cancer treatment at Kasturba Hospital run by the O.P.No. 1. The complainant has contended that he had under gone treatment of cancer for two and half years and also could not join the services of M.S.R.T.C since 2012. The complainant was receiving salary of Rs.23,000/- per month but due to wrong treatment the complainant has lost the salary for three and half years. The complainant has contended that due to wrong treatment imparted by the O.P. Nos. 2&3 for cancer which was never existing the complainant had also become important and same affected marital life of the complainant. The complainant has taken a plea that he had suffered not only the monetary loss but he had also suffered mental and physical harassment due to wrong and incorrect treatment of cancer being given by the O.P.Nos. 1 to 3. The complainant has contended that the O.P.Nos. 1 to 3 had also indulged in gross deficiency in service by giving wrong medical treatment. The O.P.Nos. 2&3 had also acted in negligent manner while providing treatment to the complainant. The complainant has contended that he was left with no option but to file the complaint for deficiency in service on the part of the O.P.Nos.1 to 3 and so the present complaint.
3. After filing of the present complaint due notice was issued to the O.P. Nos. 1 to 3. The O.P. Nos. 1 to 3 appeared and also filed joint written version on record. The O.P.Nos.1 to 3 have categorically denied that the complainant was the Consumer or that the O.P. Nos. 1 to 3 had indulged in any deficiency in service. The O.P.Nos.1 to 3 have contended that the complainant–Kamalnayan visited the Kasturba Hospital on 23/01/2012 and not on 13/01/2012. The complainant had come with a complaint of pain in abdomen and burning in micturition and was also having problem of Hydrocele . The complainant was thereafter asked to visit the surgery O.P.D. where he was examined by the resident doctor and subsequently he was referred to the concerned department of surgery. The Complainant was then advised to take oral medicine for 7 days for his urinary complaint. The O.P. Nos. 1 to 3 have contended that on clinical examination it was found that the complainant was having serious obstructive urinary symptoms and on pre-rectal examination he had an enlarged prostate and hard right lobe which clinically suggests malignancy. The right sided hydrocele of the complainant was larger than the left side. In view of the clinical picture the complainant was advised FNAC test from the prostate gland. The complainant was duly investigated and he was asked to report to the hospital on 03/02/2012. The opponent Nos. 1 to 3 have contended that in view of clinical findings of sever obstructive urinary symptoms and hard prostate gland with FNAC report of likely existence of Adenocarcinama with further differentiation in to well differentiate Adenocarcinama. The O.P.Nos. 1 to 3 have contended that the said fact was duly informed to the complainant and he was also informed that surgery will have to be carried out and he will have to be admitted in the hospital. Accordingly, he was admitted on 10/02/2012. After the complainant was admitted he was asked to undergo C.T. Scan and investigation. The complainant was also informed all procedure and his written consent was also taken on several forms. The complainant had also signed on the consent form after going through the entire contents. The O.P. Nos. 1 to 3 have contended that doctor of surgery department performed the operation on 18/02/2012 and on that date Bilateral Subcapsular Orchidectomy was done under spinal anesthesia and operation was also successful. The O.P.Nos. 1 to 3 have contended that the complainant was also discharged on 23/02/2012 and on 27/02/2012 stitches were also removed in the O.P.D. The O.P. Nos. 1 to 3 have categorically denied that every 8 to 10 days he was called by the O.P. Nos. 1 to 3. On the other hand he was provided with 70 grays in 35 fractions over more than 7 weeks. The opponents have denied that radiation therapy was given for more than 35 times or that as a result of same the physical health of the complainant had deteriorated. The opponents have also denied that the complainant have develop trouble of bleeding to rectum. Opponents have denied that they were informed the complainant that there was deficiency in the blood and so blood was given. On the contrary the opponents have also denied that due to suffering mental and physical health he could not join service from 2012 till date. The opponents have also denied that the complainant has lost his salary of three and half years. On the contrary opponents have contended that the Medical College Hospital MGIMS is run by Kasturba Health Society and complainant was treated by most experienced doctors. Opponent No. 2 is Senior Consultant and was having excellent academic career and was specialist in field. The opponent No. 2 had completed his surgery from most prestigious College. The opponents had acted in very diligent manner and there was no negligence on their part. The opponent No. 3 was also having excellent academic career and was senior consultant. The opponent No. 3 was working as a professor of the surgery at the relevant time. The opponents have contended that the complainant has allege medical negligence but the complaint is not supported by any medical expert evidence. The opponent Nos. 2&3 had taken every possible care to treat the complainant in best possible manner. The opponents have contended that the complainant had received the certificate from Rashtrasant Tukadoji Cancer, Hospital and Research Centre, Nagpur, due to good treatment provided to the complainant. The opponents have also contended that biopsy alone is not sufficient to come to the conclusion regarding cancer. The FNAC conducted by the opponents was reliable method in the diagnosis of prostate cancer. There was no medical negligence on the part of the opponent Nos. 1 to 3. The opponent No.1 is reputed Hospital and opponent Nos. 2&3 were reputed doctors who are professional in their work. There was no medical negligence or deficiency in service either on the part of opponent No. 1- Mahatma Gandhi Institute of Medical Science or on part of opponent Nos. 2&3 Doctors. For the forgoing reasons the complaint filed by the complainant- Kamalnayan was devoid of any substance and so deserves to be dismissed with cost.
4. The complainant thereafter adduced evidence by way of affidavit and also placed reliance upon documents consisting of medical papers regarding treatment provided at Mahatma Gandhi Institute of Medical Science to the complainant and same are attached with list. The opponents Nos. 1 to 3 have also adduced evidence. The opponents have also placed reliance upon evidence affidavit of Dr. Nitin Gagane who was serving as Dean of Mahatma Gandhi Institute of Medical Science. The opponents have further relied upon affidavit of Dr. Bharati Pandya who was working as Surgeon and Professor in All India Institute of Medical Science at Bhopal and both opponents have also filed their written notes of argument . We have gone through the documentary evidence adduced by the complainant as well as opponent Nos. 1 to 3 as well as written notes of argument.
5. The complainant has come with the specific case that he was working as a Conductor in M.S.R.T.C. and was suffering from pain in abdomen and was also having trouble in the Hydrocil and so he approached the O.P.D. of the opponent No. 1 hospital on 13/01/2012. The complainant was then advised to be hospitalized and so the complainant also got admitted. The complainant has contended that thereafter the doctor in the hospital carried out investigation and diagnoses and after conducting various tests the complainant was informed that he was suffering from prostate cancer. The opponent also informed that he will have to undergo surgery of hydrocil and major operation will have to be performed. As per the case of the complainant his signature was also taken on various papers and forms and thereafter surgery was performed. It is the case of the complainant that even after surgery was performed the complainant was called by the opponent in the radiation department for treatment of cancer and on more than 35 times radiation therapy was imparted on the complainant due to which there was deterioration of the health of the complainant and there started severe bleeding through rectum. It is the case of the complainant that he had applied for leave for cancer treatment and so he approached the Rashtrasant Tukadoji Cancer Hospital and Research Centre, Nagpur for production of certificate relating to ailment namely cancer. The concerned senior doctor of Rashtrasant Tukadoji Cancer Hospital and Research Centre, Nagpur examined the complainant and issued letter stating that the complainant was not suffering from any kind of cancer and only suffering from hydrocil. The complainant has contended that he was compelled to undergo treatment of cancer for more than two and half years in the hospital of the opponent No. 1 in spite of fact that he was not at all suffering from cancer and so the opponent No. 1- Mahatma Gandhi Institute of Medical Sciences, Sewagram, had indulged in deficiency in service. The complainant has contended that though he was not suffering from cancer, he was subjected to radiation for more than 35 times and same amounted to gross negligence on the part of not only the O.P.No.1 Mahatma Gandhi Institute of Medical Sciences, Sewagram, but also the opponent Nos. 2&3.
6. We have heard the learned advocate for the complainant. During the course of argument, the learned advocate for the complainant has drawn our attention to the documents namely case papers as well as case history of complainant. As stated earlier the opponent Nos. 1 to 3 have categorically denied all the contention made by the complainant. If we turn to the medical papers placed on record it becomes clear that the complainant – Kamalnayan visited the Kasturba Hospital run by the O.P.No. 1 for first time on 23/01/2012 where he was attended in the O.P.D. The complainant thereafter again visited the hospital on 10/02/2012 when he was informed that since he was having trouble of hydrocil the surgery of hydrocil will have to be performed. It is not in dispute that the complainant had undergone surgery of hydrocil on 18/02/2012 and after the surgery after few days stitches were also removed. The complainant has placed on record the medical papers from Kasturba Hospital to show that complainant was called for radiation treatment for cancer on 01/03/2012 and he was given radiation treatment from 01/03/2012 to 26/04/2012. It is argued by the learned advocate for the complainant that though the cancer was not detected and also despite fact that no biopsy was performed the complainant was subject to radiation therapy which is given at the 3rd stage of cancer. It is argued by the learned advocate for the complainant that before subjecting to the radiation treatment no thorough examination was conducted and in fact wrong treatment was given to the complainant and high dose of radiation therapy was given i.e. 70 Grays in 35 factions though there was no prostate malignancy. It is argued by the learned advocate for the complainant that due to radiation therapy from 01/03/2012 onwards there were side effects suffered by the complainant such as indigestion, painful defecation, burning micturition and excessive bleeding from anus. It is submitted by the learned advocate for the complainant that the opponents did not bother to confirm the malignance before applying radiation therapy and same amounted to gross medical negligence. However, the learned advocate for the opponent Nos. 1 to 3 have rebutted this contention and submitted that merely because report of biopsy was not taken, no inference can be drawn that the complainant was not suffering from prostate cancer. It is contended by the learned advocate for the opponents that prostate cancer can also be detected by other reliable medical method such as FNAC.
7. However, the learned advocate appearing for the O.Ps. have categorically denied all the contentions as well as allegations leveled by the complainant. The learned advocate for the O.Ps. have denied that there was any medical negligence on the part of the O.P. No. 1 all the doctors associated with the O.P.No. 1 much less any gross medical negligence as alleged by the complainant. The learned advocate for the O.P. has also denied that wrong diagnosis was made by the doctors of O.P.No. 1 or that any wrong treatment for cancer was give to the complainant. On the contrary the learned advocate for the O.P. has contended that best possible treatment consistent with the standard practice was given to the complainant by Kasturba Hospital run by the O.P. No. 1 as well as by the doctors. It is submitted by the learned advocate for the O.P. that it is settled position of law that any doctor or hospital cannot be held guilty for negligence after proper protocol has been followed and proper medical procedure has been adopted. O.P.No. 2- Dr. R.S. Narang and O.P.No. 3- Dr. Bharti are reputed and experience doctors attached to the Kasturba Hospital run by the O.P.No. 1. Further the complaint filed by the complainant is not supported by any medical evidence and so no inference as alleged can be drawn implicating the O.P. Nos. 1 to 3.
8. Before turning to appreciate the contents in the light of the evidence adduced on record it will be relevant to note certain undisputed facts which emerge on record. It is not in dispute that the complainant – Kamalnayan Petkar had visited the hospital on 23/01/2012 with the complaint for pain in abdomen, burning in micturition and increased frequency of micturition for 8 days. He further also having problem of Hydrocele for which he visited the surgery OPD. It is not in dispute that he was examined by the resident doctor on duty and after noting down the history the case papers handed over to him and he was referred to department of surgery. It is not in dispute that after taking treatment of 7 days the complainant again reported in the hospital on 30/01/2012 and he was examined by the consultant in surgery department. The complainant was having severe obstructive urinary symptoms and had an enlarged prostate and hard right lobe, which clinically suggests of malignancy. As per medical papers the right sided hydrocele of the complainant was larger than the left side and so the complainant was advised FNAC test from the prostate gland. He was then asked reported in the OPD on 03/02/2012 as the investigations showed sever obstructive urinary symptoms and hard prostate gland with FNAC report of likely existence of Adenocarcinoma. It was decided to give proper treatment and complainant was also informed. It is not in dispute that the complainant was admitted in the hospital on 10/02/2012 with provisional diagnosis of prostatic malignancy. It is also admitted fact that after the complainant signed all the consent form. Doctor from surgery department performed operation on 18/02/2012 and operation was successful and complainant has also discharged on 23/02/2012. The complainant was again called on 27/02/2012 for removal of stitches and then stitches were removed.
9. It is the case of the O.P. Nos. 1 to 3 that he was thereafter called from 01/03/2012 to 26/04/2012 for treatment of prostate malignancy by conventional method of radiation therapy. The medical papers placed on record also shows that radiation therapy was given to him from 01/03/2012 to 26/04/2012 with 70 grays in 35 fractions and it was a normal dose. However, the complainant has contended that radiation therapy could not have been given as it is given in the second stage of cancer and due to radiation therapy there were side effects suffered by the complainant but this fact has not only been denied in the written version but also by the affidavit of treating doctor on record namely Dr. R.S. Narang and Dr. Virendra Vyas. The complainant has also contended that due to excess radiation therapy the physical health of the complainant was adversely affected and started declining after 35 sittings. The O.P. has also denied this aspect that the excess radiation was given to the complainant. On the contrary it is contended that the complainant was provided with 70 grays in the 35 fraction over more than 7 weeks which was normal dose to treat the patient of prostate malignancy by conventional method of radiation therapy. The O.P. has also denied that the bleeding through rectum of complainant had started due to side effects of radiation, In the back drop of this submissions it was extremely necessary for the complainant to place on record positive expert evidence to show not only that he was not suffering from Prostate Cancer but further also to show that troubles faced by the complainant had started due to side effects of radiation therapy, but no such evidence has been placed on record by the complainant. The O.P. has also contended that the bleeding per rectum of the complainant had taken place as a result of radiation and also due to fissure in anus and piles and had no relation with the radiation therapy but the evidence on record shows that despite all the facts complainant was given proper medical treatment when he was admitted in hospital on 13/01/2014 and investigations were also carried out and further endoscopy was also performed.
10. The complainant has also come with further case that no biopsy was performed and despite this fact he was subjected to radiation therapy. On this aspect the complainant has heavily relied upon one letter issued by Rashtrasant Tukadoji Cancer Hospital & Research Centre, Nagpur dated 16/04/2013 that investigations do not confirm the malignance of cancer. As regard this aspect it is vehemently argued by the learned advocate for the respondent that it was not at all necessary in all cases to conduct biopsy for detecting cancer and beside biopsy there were other tests also which were prescribed to detect the malignancy. It is argued by the learned advocate for the O.P. that the FNAC report is one of the best examination in early diagnosis of Prostatic Carcinoma. FNAC (Fine Needle Aspiration Cytology ) is an easy to perform outpatient procedure requiring no expensive equipment or anesthesia. It is submitted that in case FNAC report is positive then does not require biopsy . On this aspect he has relied upon the evidence affidavit of Dr. Ravindra Narang who was working as a Professor and was an experienced doctor and Head of the Department of Surgery. Moreover he has also treated the complainant. Further the O.P. has also relied upon evidence affidavit of Dr. Virendra Vyas. Now in order to rebut this fact also it was necessary for the complainant to place on record evidence of an expert to substantiate the version of the complainant that he had suffered trouble due to wrong treatment provided by the O.P. Nos. 1 to 3. It is argued by the learned advocate for the O.P. that time an again the National Commission as well as Hon’ble Supreme Court has observed that burden of proving medical negligence of doctor is on the complainant . The O.P. Nos. 1 to 3 have come with the case that the report of FNAC shown that complainant was suffering prostatic malignancy and it was well differentiated Carcinoma. On this aspect the learned advocate for the O.P. heavily relied upon on judgment of Hon’ble National Commission in the case of Satish Kumar Vs Dr. Rajendrao Sangwan, reported in 2019(2) CPR 222 and we have gone through the said judgment. Further , the learned advocate for the O.P. has also placed reliance upon two e other judgments of Hon’ble Supreme Court in the case of Dr. Laxman Joshi Vs. Dr. Trimbak Godbole and other , reported in AIR 1969 Supreme Court 128 and Kusum Sharma and other Vs. Batra Hospital and Medical Research Centre and others, reported in (2010) 3 Supreme Court Cases 480. We have carefully gone through these judgments in which detailed guidelines have been given by the Hon’ble National Commission as well as Hon’ble Supreme Court regarding appreciation of evidence in the case of medical negligence.
11. On the other hand, the learned advocate for the complainant has submitted that in order to establish the case of medical negligence it is not always necessary to place on record expert opinion of medical expert. It is submitted by the learned advocate for the complainant that only in appropriate cases examination of expert may be made and matter can be left to the discretion of the Commission. On this aspect the learned advocate for the complainant relied upon judgment of Hon’ble Supreme Court in the case of V. Kishan Rao Vs. Nikhil Super Speciality Hospital and another, Civil Appeal No. 2641 of 2010. We have gone through this judgment. In that case it was observed in para No. 54 that discretion is vested with the members of the Consumer Fora and if any of the parties wants to adduce any expert evidence the members by applying their mind can allow the parties to adduce such evidence. In that case the Hon’ble Supreme Court had distinguished with the earlier cases the observations were made that the expert evidence was not necessary. However, with utmost respect we hold that the case of V. Kishan Rao Vs. Nikhil Super Speciality Hospital and another (Cited supra) will not help the complainant in the peculiarly facts of the present case. Here in the present case the facts which are clear is that the complainant had undergone radiation therapy for treatment of cancer and it is the case of the complainant that the complainant was not suffering from any malignancy of prostate as per letter dated 16/04/2013 issued by Rashtrasant Tukadoji Cancer Hospital & Research Centre, Nagpur. On the other hand, the O.P. has placed on record affidavit of treating doctors namely Dr. Ravinder Narang, Dr. Virendera Vyas , Dr. Nitin Gagane and Dr. Ajaykumar Shukla so as to show that the complainant was suffering from prostate cancer. Admittedly, the complainant has not placed on record any other evidence of expert from the Rashtrasant Tukadoji Cancer Hospital & Research Centre, Nagpur except the letter dated 16/04/2013 to show that he was not suffering from prostate cancer. It is now settled by catena of decision of Hon’ble Supreme Court that in the case of medical negligence the allegations and contentions of the medical negligence will have to be supported by medical opinion of independent expert and so in the absence of any such evidence on record the contentions raised by the complainant cannot be accepted. Even otherwise it is submitted by the learned advocate for the O.P. Nos. 1 to 3 that after treatment of the complainant by radiation therapy the complainant can be said to have been cured from the ailment and so there would be no symptom of cancer. Apart from this the complainant has not led any independent medical evidence to show that the physical condition of the complainant deteriorated due to radiation therapy. In the light of the aforesaid discussions we are unable to accept the contentions advanced by the learned advocate for the complainant and we hold that the complainant has failed to establish by cogent evidence that the O.P. No. 1 namely Mahatma Gandhi Institute of Medical Sciences and O.P.Nos. 2 &3 Dr. R.S. Narang as well as Dr. Bharti had committed medical negligence an amounting to deficiency in service and so we proceed to pass the following order.
ORDER
i. Complaint is hereby dismissed.
ii. No order as to cost.
iii. Copy of order be furnished to both the parties, free of cost.
