Per – Hon’ble Mr. P. N. Kashalkar, Presiding Judicial Member

          This is a consumer complaint filed by Smt. Sabtri @ Savitri Agarwal, a resident of ChhattisgarhState.  Complaint has been filed against the Opponent No.1, TataMemorialHospital and the Opponent No.2, Dr. Sudeep Gupta also working with the Opponent No.1, TataMemorialHospital.  According to the Complainant, she is a housewife aged 59 years old.  The Opponent No.1, TataMemorialHospital is a leading cancer treatment institute in India and is under the control of Atomic Energy Administration of Government of India.  The Opponent No.2, Dr. Sudeep Gupta is a leading doctor of gastro-intestinal ailments and he is an Associate Professor in the Department of Oncology with the Opponent No.1, Hospital.

[2]     According to the Complainant, on 14/3/2007 at her residence she suffered blood vomiting and she was immediately rushed to a nearby hospital known as SiddharthHospital where Dr. G. S. Agarwal gave her preliminary treatment and advised her to undergo endoscopy of abdomen.  According to the Complainant, since that facility was not available at her place of residence she went with her relatives to Bargarh, Orissa and accordingly, on 16/3/2007 ultrasound sonography of abdomen and pelvis of the Complainant was carried out in Purohit GeneralHospital and Research Centre by Dr. R. K. Purohit who reported that the Complainant’s Porta Hepatis showed two enlarged lymph nodes of 31/39 and 36/13 mm. size.  A photocopy of the Complainant’s ultra-sonography report is at Annexure-A.  Dr. Purohit advised clinical diagnosis of hematemesis by endoscopy of gastro-intestine which was carried out in the same hospital on 16/3/2007 by Dr. R. K. Sahu who reported that there was unrelated growth in cardia just below the cardio esophageal junction in the lesser curvature growth extending near to incissura and an impression of growth in cardia of stomach.  A photocopy of the said report is at Annexure-B.  Dr. R. K. Purohit thereafter opined that biopsy sample may be sent to the Opponent No.1, Hospital to rule out cancer.  Accordingly, sealed bottle containing the biopsy sample was accordingly brought by the Complainant to the Opponent No.1, TataMemorialHospital.  According to the Complainant, her case was registered on 21/3/2007 at the Opponent No.1, Hospital and Dr. Shailesh Shrikhande treated her case as ‘B’ Category Patient.  He in turn on 21/3/2007 referred the Complainant to the Opponent No.2, Dr. Sudeep Gupta a specialist in cardia stomach under gastrointestinal.  The Opponent No.2, Doctor asked the Complainant to undergo following tests – (a) X-rays, (b) CT Scan of abdomen and pelvis, (c) Cytology (of the outside material for review), (d) serology, (e) Blood Group, (f) Routine Bio Chemistry, (g) Tumor Marker and (h) Hemato Oncology/Pathology.  The Complainant accordingly underwent all those tests.  Department of Biochemistry carried out Tumor Marker Test and they also collected blood sample for clinical test.  Department of Microbiology carried out blood test and found that the Complainant’s hemoglobin was 9.96 G/D1 whereas normal range is 12-17 and her MCV was 79.6 fl whereas normal range is 83-101 and the Complainant’s MCH was 27.1 pg whereas normal range is 26-32.  CT Scan of abdomen and pelvis of the Complainant was conducted at Jupiter Heart Scan on 21/3/2007 and following findings were recorded:-

“Ecentric wall thickening involving the cardia an proximal stomach along the grater curvature, approximate measure 2.15 cm the length of involved segment is 8.56 cms.  Multiple enlarged Lymph Nodes are noted in the left gastric, perigastric, gastro hepatic, hepatodeuodenal paraarotic, pancreatic and portocaval and common iliac region.  The thickening is seen to abut the body of the pancreas.”

[3]     Biopsy sample taken out from ulcer margin (ulcerated growth in cardia) was also handed over to the Opponent No.1, Hospital for biopsy examination on 21/3/2007 but the report was not ready on 23-24/03/2007.  The Opponent No.2, Doctor perused the test reports and orally informed the Complainant’s relatives that the Complainant was suffering from Cancer Stage-IV.  Xerox copy of the evaluation made by the Opponent No.1, Hospital out of the report of all the tests is at Annexure-D.  The Opponent No.2, Doctor therefore, advised the Complainant to take four cycles of chemotherapy and gave a written prescription dated 24/3/2007 for treatment at the Complainant’s hometown.  Xerox copy of the said prescription issued by the Opponent No.2, Doctor is at Annexure-E.  According to the Complainant, she had come to the Opponent No.1, Hospital all the way from the State of Chhattisgarh and she had no enough money to purchase four cycles of Chemo drugs and so she purchased two cycles of chemo drugs each for `19,943/-, total `39,886/-.  Purchase bill of two chemo drugs is at Annexure-F.  The Opponent No.1, Hospital charged a sum of `3,150/- towards Chemotherapy Planning Charges which she paid vide Annexure-G.  For four days the Complainant was admitted in the Opponent No.1, Hospital and for which she paid an amount of `430/- as hospitalization charges.  On 24/3/2007 the Complainant left for Udaipur, Rajasthan by a luxury bus by paying `500/- for each passenger, totaling `2,000/- towards traveling expenses inclusive of some miscellaneous expenses.  At Udaipur on 27/3/2007, the Complainant took first cycle at MaharanaBhupalGovernmentHospital.  Before administering chemotherapy the Doctors at that Hospital had contacted the Opponent No.2, Dr. Sudeep Gupta on his mobile who instructed how to administer chemo drugs.  Accordingly, first cycle of chemotherapy was administered to the Complainant at Udaipur on 27/3/2007.

[4]     As after taking first cycle of chemotherapy the Complainant’s condition had not improved she had to visit Dr. Gagan Deep Gambhir and on his advice she had got performed bio-chemistry test at Well Spring Amolak pathlab Diagnostics of NPIL Laboratories and Diagnostics Pvt. Ltd.  The reports of the said laboratory are at Annexure-I (colly).  On 16/4/2007 the Complainant was admitted to MaharanaBhupalGovernmentHospital, Udaipur and before administering chemotherapy drugs the doctors again contacted the Opponent No.2, Dr. Sudeep Gupta on his mobile and took his instructions as to how chemo drugs should be administered.  On 14/4/2007, the doctors opined that as there was blood deficiency blood transfusion was necessary for the Complainant.  On 17/4/2007, the Complainant’s son-in-law donated blood which was transfused to the Complainant.  Thereafter on 18/4/2007, the Doctors at MaharanaBhupalGovernmentHospital, Udaipur administered second cycle of chemo drugs as advised by the Opponent No.2, Dr. Sudeep Gupta.  The Complainant was discharged on 18/4/2007 and she was called for review on 8/5/2007.  Discharge Card of Maharana Bhupal Government Hospital, Udaipur is produced on the record at Annexure-J.

[5]     After taking two cycles of chemotherapy the Complainant’s condition did not improve but it deteriorated and she suffered various problems like – (a) continuous vomiting and hence not able to take oral food or liquid, (b) acute body pain, (c) loss of hair from head, (d) epidermis of below foot had come out, (e) skin all over body had blackened, (f) totally bed-ridden and routine on bed, (g) breathing problem, (h) periodic fever and many more symptoms.  Hence, on 3/5/2007 the Complainant was admitted in RajasthanHospital and Research Centre and she remained as an indoor patient till 11/5/2007.  Doctors there again contacted the Opponent No.2, Dr. Sudeep Gupta on his mobile who had advised not to give third cycle of chemo drugs which the Complainant had bought later on and it was suggested that the Complainant should be brought back to the Opponent No.1, Hospital.  The Complainant had spent `15,000/- on medicines at RajasthanHospital and Research Centre.  The Complainant relies upon admit and discharge card and bill issued by RajasthanHospital and Research Centre.

[6]     Since there was no improvement in the health of the Complainant on 11/6/2007 by hiring a Qualis car she came to Mumbai from Udaipur by spending hiring charges for Qualis car.  The Opponent No.2, Doctor examined the Complainant on 12/6/2007 and suggested further tests like X-ray, CBC, Bio-chemistry, SE (Bd), ECG, and 2-D Echo and asked the Complainant to see him in the evening after C X-ray.  On 12/6/2007, Chest X-ray, bio-chemistry on blood sample, bio-chemistry serum, ECG and Cytology of pleural fluid was conducted.  According to the Complainant, Cytology of pleural fluids report showed acute inflammatory reaction and no malignant cells seen in those smears.  A copy of the said report is at Annexure-N.  The Complainant was sinking and collapsing on 12/6/2007 and so she was rushed to Observation/Recovery Ward at the Opponent No.1, Hospital under the advice of the Opponent No.2, Doctor.  The Complainant had been asked to sign consent letter for anesthesia, surgical operation and other procedures to be performed under overall supervision and direction of a doctor attached to Thoracic Unit.  At 07:30 p.m. the Opponent No.2, Doctor made an evaluation report.  He put the remark for admission counter to consider the patient for admission in semi-private/private ward.  A copy of the evaluation report is at Annexure-P.  The Complainant’s condition was not improving and she had told the concerned authorities at the Opponent No.1, Hospital that on giving prescribed chemotherapy her condition had deteriorated but the Complainant was made to wait from 12:00 noon to 06:00 p.m.  In the evening the Complainant was admitted to Female Ward by Dr. Narayanan for observation.  Doctor’s admission note about it is at Annexure-O.  The Complainant’s relative, Mr. Ramu Agarwal and daughter learned on 12/6/2007 from the doctors in the ward that the patient had been wrongly diagnosed for cancer and was wrongly given chemotherapy treatment.  They overheard this conversation amongst the doctors in the Ward who were discussing the Complainant’s case amongst themselves.  The Opponent No.2, Doctor further evaluated diagnostic test report and its findings and came to a conclusion that the Complainant was not only suffering from cancer but also from a new born cancer.  Evaluation-cum-assessment paper of the Opponent No.1, Hospital is at Annexure-R.  The Complainant was thereafter admitted to Ward-1010 on the tenth floor.  On 13/6/2007, the Complainant was further referred to undergo various diagnostic tests which were carried out on 14/6/2007.  On 15/6/2007, the Complainant’s relatives sought discharge of the Complainant as they had lost confidence in the Opponent No.1, Hospital and the Opponent No.2, Doctor since the Complainant was wrongly diagnosed with cancer and she was wrongly given chemotherapy treatment.  Accordingly, on 16/6/2007, the Complainant was discharged from the Opponent No.1, Hospital as per Discharge Card which is produced on the record at Annexure-U (colly).

[7]     The Complainant then went back to Udaipur and she was admitted in RajasthanHospital and Research Centre.  She again underwent diagnostic tests on 20/6/2007 after seeing the report of pleural fluid cytology and further test for tuberculosis IGG was carried on 22/6/2007 and after that she also underwent endoscopy of gastro-duodenoscopy on 28/6/2007.  On 29/6/2007 result of histopathology mentioned that section showed features of chroic atrophic gastritis with focal area of neutopilic exudates and there was no evidence of dysplastic/malignant changes.  According to the Complainant, the reports of tests conducted on her on 16/3/2007 at Purohit Hospital and Research Centre, Bargarh, Orissa and reports of tests conducted at the Opponent No.1, Hospital in the months of March/June-2007 and the report of tests conducted at hospitals at Udaipur during the period 22/6/2007 to 29/6/2007 were shown to various leading doctors and they opined that the Complainant had been wrongly and incorrectly diagnosed and was treated with chemotherapy for cancer even though she did not have any sort of cancer.  According to the Complainant, no doctor is ready and willing to give a written opinion about it.  The Complainant pleaded that the Opponent No.2, Doctor had positively stated that the Complainant was suffering from cancer carcinoma stomach and the Opponent No.2, Doctor had asked the Complainant to undergo two cycles of chemotherapy.  According to the Complainant, she suffered lot of hardship, discomfort, inconvenience and mental agony because of wrong advice given by the Opponent No.2, Doctor in the Opponent No.1, Hospital and she had to spend lot of money for undergoing two chemo cycles.  According to the Complainant, the Opponent No.2, Doctor should have waited till he received histopathological report of biopsy sample which report was ready on 29/3/2007 at bio-chemical laboratory of the Opponent No.1, Hospital.  Thus, even without waiting for histopathological laboratory report the Opponent No.2, Doctor by an act of negligence in discharge of professional duty concluded positively on 23-24/3/2007 that the Complainant was suffering from carcinoma stomach and had to undergo two chemotherapy cycles as per the directions of the Opponent No.2, Doctor when in fact histopathological report on 29/3/2007 had opined that there was no malignancy in the biopsy sample but the Complainant received this report from the Opponent No.1, Hospital only on 12/6/2007.  According to the Complainant, it was simply found that she suffered from tuberculosis.  This she contracted because of side-effects of wrong administration of chemo-drugs to the Complainant on the advice of the Opponent No.2 Doctor and, therefore, the Complainant asserted that she is entitled to claim damages/expenses totaling `72,58,000/- from both the Opponents.  Before filing a consumer complaint, the Complainant had sent legal notice to both the Opponents on 31/8/2007 pointing out medical negligence on the part of the Opponents.  She received a reply letter dated 27/9/2007 from the Opponent No.1, Hospital.  According to the Complainant, the Opponent No.2, Doctor having wrongly diagnosed and treated the Complainant for cancer has committed an act of professional deficiency in service and, therefore, this Commission has a right to entertain this complaint and to award damages of `72,58,000/- besides costs of litigation.

[8]     The Opponents filed their joint written version and denied the allegations made by the Complainant.  According to the Opponents, the complaint as filed is not tenable in law and may be dismissed in limine.  The Opponent pleaded that the Complainant has not come with clean hands and she has filed this complaint with an ulterior commercial motive.  According to the Opponents, the complaint is malafide, misconceived and vexatious and it may be dismissed with costs.  Opponents also pleaded that the Complainant may be asked to approach Civil Court since an elaborate trial is required in view of the complications of the case.  The Opponents also pleaded that there was no negligence or deficiency in service on the part of both Opponents.  The Opponents denied basic allegation of the Complainant that she suffered tuberculosis as a side-effect of wrong administration of chemo-drugs to the Complainant as advised by the Opponent No.2, Doctor.  The Opponents pleaded that chemotherapy administration does not cause side-effects of contracting tuberculosis as alleged by the Complainant.  The Opponents also pleaded that the Complainant had not adduced medical expert’s opinion justifying the allegations made by the Complainant and, therefore, the complaint is liable to be dismissed on this ground itself.  The Opponents also pleaded that the Complainant has not submitted evidence of allegedly having administered chemotherapy on 27/3/2007 and it appears that the Complainant had received only one cycle of chemotherapy.  According to the Opponents, the Opponent No.1, Hospital is an advanced research centre in cancer and it is a premier cancer research centre of the country.  It is under the administrative control of Department of Atomic Energy, Government of India and treats approximately 1200 patients per day.  The Opponent No.2 is well-qualified in medical oncology and has an international standing.  Similarly, Dr. Shailesh Shrikhande, Acting Head of Gastro Intestinal Department is also well-qualified and is having international standing.  According to the Opponents, the patient was registered at the Opponent No.1, Hospital on 21/3/2007 under Registration No.BZ-5495.  Prior to that she had undergone certain investigations on her own at Purohit GeneralHospital and Research Centre, Orissa and from Upper G. I. Endoscopy Report dated 16/3/2007 there was an impression that there was growth in cardia of stomach.  This was an ulcerated growth in cardia of stomach just below the cardioesophageal junction in the lesser curvature extending near to incissura.  An ultrasound of the abdomen done at the same hospital on 16/3/2007 revealed two enlarged lymph nodes at the porta hepatis of sizes 3.1 X 3.9 cm. and 3.6 X 1.5 cm. respectively.  These reports were seen by the doctors at the Opponent No.1, Hospital on 21/3/2007 when the patient was brought to Mumbai.  Those reports were suggestive of carcinoma of stomach.  An ultra-fast CT Scan of abdomen and pelvis was got done on the same day at Jupiter Heart Scan, Mumbai which revealed eccentric wall thickening involving the cardia and proximal stomach along the greater curvature.  This thickening measured approximately 2.15 cm. and the length of the involved segment was 8.56 cm.  Multiple enlarged lymph nodes were noted in the left gastric, perigastric, gastrohepatic, hepatuduodenal, paraaortic, pancreatic and portocaval and common iliac region.  CT Scan report is marked as Exhibit-D.  Certain other investigations were ordered.  The slides from the biopsy taken by the patient at Orissa were submitted to the Opponent No.1, Hospital on 23/3/2007.  Patient was clinically evaluated on the same day under gastro-intestinal service unit of the Opponent No.1 Hospital and clinical impression revealed carcinoma of stomach.  After further consideration by Dr. Shailesh Shrikhande, Acting Head of the Department of G.I. Unit it was recommended to the Opponent No.2, Doctor to enable planning for Neoadjuvant/Palliative chemotherapy.  In view of finding of gastric mass with multiple abdominal lymph nodes, the Opponent No.2 Doctor in consultation with Dr. Shrikhande planned chemotherapy for the ‘EOX’ regimen containing epirubicin, oxaliplatin and capecitabine.  EOX is one of the standard chemotherapy protocols for gastric cancer.  Patient was found to be Hepatitis ‘B’ positive and hence Tab. Lamivjudine was also prescribed.  Patient was administered supportive treatments of intravenous iron sucrose, hydrocortisone and promethazine in the day car ward of the Opponent No.1 Hospital on 24/3/2007.  There were not side effects at all.  The Opponents clarified that this treatment at day care unit was not administration of chemotherapy per-se but only a supportive treatment to improve the patient’s general condition.  The Opponent No.2, Doctor advised the Complainant and her relatives to take planned chemotherapy cycles at the Opponent No.1, Hospital under close observation by the Opponent No.1, Hospital staff.  However, the Complainant chose to leave Mumbai immediately to return to her native place and take further treatment there.  The Opponent No.2, Doctor had thus given a recommendatory letter for chemotherapy to be taken under the guidance of an oncologist.  Said letter is at Exhibit-E.  Treatment advised was four cycles of chemotherapy and the schedule was to be given every three weeks and it was also advised that CBC/Liver Function Test/RFT had to be done before administering each cycle.  The Opponent No.2, Doctor had advised the Complainant to come for a follow up after completion of fourth cycle of chemotherapy i.e. on 18/6/2007 with CBC/Bio-Chemistry/SE/CT Abdomen/Pelvis for re-evaluation.

[9]     According to the Opponents, the Complainant’s relatives had contacted the Opponent No.2, Doctor on phone on 15/4/2007 complaining that the Complainant was not feeling well.  The Opponent No.2, Doctor had advised them to immediately bring back the Complainant to the Opponent No.1, Hospital as soon as possible and in the meantime take the advice of the local treating doctor.  The Opponents pleaded that there was no medical report in writing of the condition of the Complainant received from the oncologists concerned where the Complainant was allegedly administered first two cycles of chemotherapy whereas the Complainant has simply made available the records having submitted to only one cycle of chemotherapy.  According to the Opponents, the patient was brought to the Opponent No.1, Hospital on 12/6/2007 after a gap of about two months.  Immediately, the Opponent No.2, Doctor evaluated the Complainant.  The Complainant’s relatives gave history of the Complainant having received two cycles of chemotherapy, one on 25/3/2007 and the other on 15/4/2007, but no other evidence was provided.  When the Complainant was examined she had severe hypoalbuminemia, hyperkalemia, bilateral pedal edema and massive right sided hydropnemothorax.  The Complainant was immediately taken up for right sided intercostals chest tube drainage of the hydropnemothorax and other supportive treatment.  The Complainant was also provided with ICU support and the Complainant’s condition improved during the fourth day of her stay at the Opponent No.1, Hospital.  On 12/6/2007, the Opponent No.2, Doctor had an opportunity to review the entire case file.  He observed that the pathology report of the review of the initial slides brought by the Complainant at the time of registration revealed chronic active gastritis with atrophy and foveolar hyperplasia.  The pleural fluid cytology however did not reveal any malignant cells.  The Opponent No.2, Doctor, therefore, advised the Complainant to undergo repeat upper GI endoscopy to evaluate medical condition of the Complainant.  The Opponent No.2, Doctor explained the Complainant and her relatives that the Complainant needed management and evaluation but the Complainant’s relatives chose to have discharged from the Opponent No.1, Hospital to take the Complainant back to their native place.  The Opponent No.2, Doctor pleaded that from the report of the Department of Gastroenterology, Dr. Chaudhary Hospital and Medical Research Centre Pvt. Ltd., Udaipur dated 28/6/2007 it was still suspected carcinoma of stomach.  At same hospital, however, the Consultant Radiologist on the X-ray of the Complainant’s Chest PA view gave an impression of suspected Pulmonary Koch’s but not a definite impression of Pulmonary Koch.  Histopathology Report dated 29/6/2007 diagnosed Acute on chronic atrophic gastritis.  According to the Opponents, stomach is an uncommon site of extra-pulmonary tuberculosis infection even in parts of the world where intestinal tuberculosis is common.  Primary isolated gastric tuberculosis is rare and gastric tuberculosis sometimes mimics gastric cancer.  According to the Opponents, the doctors at the Opponent No.1, Hospital treated the patient with due care and with proper skill.  Initial diagnosis of carcinoma stomach was based on strong supportive clinical findings of ulcerated gastric mass on upper GI endoscopy.  CT Scan findings of markedly thickened gastric wall with generalized intra abdominal lymphadenopathy and the suspicious findings that led to gastric biopsy outside.  The Opponents also submitted that non-representative outside slides could have been submitted for review on 23/3/2007 on which the Opponent No.1, Hospital’s pathology department could not confirm gastric carcinoma.  The Opponent No.2, Doctor pleaded that he exercised best possible professional care to start the patient on appropriate management in the then existing circumstances when overall picture of the Complainant supported strongly of gastric carcinoma.  According to the Opponent No.2, Doctor he had explained all these facts to the Complainant and her relatives and they had given their informed consent to the treatment after having fully understood it.  The Opponents pleaded that the Complainant did not wait to take even the first cycle of chemotherapy at the Opponent No.1, Hospital and preferred to immediately leave the Opponent No.1, Hospital on 24/3/2007 itself.  According to the Opponents, they could have monitored the Complainant adequately about her response and toxicity of treatment.  The Complainant took almost two months to report at the Opponent No.1, Hospital after she was allegedly administered second cycle of chemotherapy at Udaipur.

[10]    The Opponents pleaded that there was no negligence at all on their part and negligence cannot be attributed to a doctor so long as he performed his duties with reasonable care and competence as laid down by the Hon’ble Supreme Court in Kusum Vs.  Batra Hospital & M. R. Centre ~ 2010-(4)-Mh.L.J.-563.  According to the Opponents, even now suspicion of carcinoma of stomach pulmonary Koch’s exists at Udaipur hospital and, therefore, they cannot be blamed for the sort of negligence or deficiency in service.  The Opponents pleaded that the terminology ‘New Born Cancer’ was wrongly interpreted by the Complainant.  Against Column 1.5 Diagnosis, there were two alternatives provided viz. New Cancer and Recurrence.  When the cancer was one treated and regression had taken place and if it recurs again, it is indicated as ‘Recurrence’ and all other cases which were diagnosed as non-recurrence will be indicated as ‘New’ Cancer and in that context new born cancer words were mentioned in the Column 1.5 Diagnosis of the Opponent No.1, Hospital papers.  The Opponents pleaded that even in the month of June-2007 when the Complainant had undergone investigations at the hospitals of her choice, suspicion of cancer of stomach persisted alongwith suspicion of pulmonary Koch’s.  From the report submitted by the Complainant on her presentation in the month of March-2007 and from the clinical evaluation done, it was suggestive of carcinoma of stomach.  Thus, the Opponents pleaded that they had exercised utmost degree of skill and competence while the Opponent No.2 Doctor in Opponent No.1, Hospital had attended the case of the Complainant.  The Complainant had enquired about histo- pathological report on 24/3/2007 when she was told that the report would be available in about a weeks’s time but the Complainant collected the report only on 12/6/2007.  According to the Opponents, relatives of the Complainant were also negligent in not enquiring about the result of histo-pathological report.  The relatives of the Complainant should have made an enquiry within a period of one week from March-2007 as to what had happened to histo-pathological report.  The Opponents pleaded that the complaint filed by the Complainant is absolutely false and the Complainant is not entitled to claim compensation of `72,58,000/- or any other amount.  The Opponents pleaded that there is no negligence or deficiency in service of what-so-ever nature on their part.  The Complainant is making reckless and malicious allegations against the Opponents with an ulterior motive to extract money from the Opponents and on these grounds the Opponents pleaded that the complaint may be dismissed with costs.  

[11]    We heard submissions of Adv. P. K. Mishra on behalf of the Complainant and Adv. A. S. Vidyarthi on behalf of the Opponents.  Both the parties have filed their respective briefs of written arguments on the record.  Those were also perused by us.

[13]    Now, the points that arise for our determination and our findings thereon are as follows:-

REASONS FOR FINDINGS

[14]    During the course of arguments, Adv. A. S. Vidyarthi for the Opponents primarily pointed out to us that the complaint suffers from inherent weakness inasmuch as the Complainant has not bothered to examine herself on an oath but she preferred to file a complaint through her power-of-attorney holder, namely – Mr. Ramu Agarwal.  The complaint itself has not been filed by the Complainant but by Mr. Ramu Agarwal as such constituted attorney of the Complainant.  Affidavit of Mr. Ramu Agarwal has been filed in support of the complaint but Smt. Sabitri @ Savitri Agarwal wife of Basudeo Prasad Agarwal herself has not filed her affidavit and it is not clear what relationship Mr. Ramu Agarwal has with the Complainant, Smt. Sabitri @ Savitri Agarwal.  Since there is no affidavit of the Complainant and since the complaint is not signed by the Complainant herself and the complaint has been filed by a power-of-attorney holder of the Complainant, Adv. A. S. Vidyarthi for the Opponents rightly submitted that the affidavit of Mr. Ramu Agarwal which is filed in support of the complaint by way of affidavit evidence may be discarded in toto and once that is discarded there is nothing on the record to prove the Complainant’s allegations of medical negligence against the Opponents Nos.1 and 2.  Adv. A. S. Vidyarthi for the Opponents rightly relied upon the decision of the Hon’ble Supreme Court in support of his contention in the case of Man Kaur (Dead) by LRS. Vs.  Hartar Singh Sangha ~ (2010)-10-SCC-512; whereunder it is clearly held that adverse inference should be drawn in case where a party to the suit does not appear in witness box and state his own case on oath and does not offer himself to be cross-examined by the other side.  Supreme Court laid down principles regarding evidence to be given in regard to the matters involving personal knowledge.  Their Lordships of the Hon’ble Supreme Court observed as follows:-

“(a)   An attorney-holder who has signed the plaint and instituted the suit, but has not personal knowledge of the transaction can only give formal evidence about the validity of the power of attorney and the filing of the suit.

(b)     If the attorney-holder has done any act or handled any transactions, in pursuance of the power of attorney granted by the principal, he may be examined as a witness to prove those acts or transactions.  If the attorney-holder alone has personal knowledge of such acts and transactions and not the principal, the attorney-holder shall be examined, if those acts and transactions have to be proved.

(c)     The attorney-holder cannot depose or give evidence in place of his principal for the acts done by the principal or transactions or dealings of the principal, of which principal alone has personal knowledge.

(d)     Where the principal at no point of time had personally handled or dealt with or participated in the transaction and has no personal knowledge of the transaction, and where the entire transaction has been handled by an attorney-holder, necessarily the attorney-holder alone can give evidence in regard to the transaction.  This frequently happens in case of principals carrying on business through authorized managers/attorney-holders or persons residing abroad managing their affairs through their attorney-holders.

(e)     Where the entire transaction has been conducted through a particular attorney-holder, the principal has to examine that attorney-holder to prove the transaction, and not a different or subsequent attorney-holder.

(f)      Where different attorney-holders had dealt with the matter at different stages of the transaction, if evidence has to be led as what transpired at those different stages, all the attorney-holders will have to be examined.

(g)     Where the law requires or contemplated the plaintiff or other party to a proceeding, to establish or prove something with reference to this ‘state of mind’ or ‘conduct’, normally the person concerned alone has to give evidence and not an attorney-holder.  A landlord who seeks eviction of his tenant, on the ground of his ‘bona fide’ need and a purchase seeking specific performance who has to show his ‘readiness and willingness’ fall under this category.  There is however a recognized exception to this requirement.  Where all the affairs of a party are completely managed, transacted and looked after by an attorney (who may happen to be a close family member), it may be possible to accept the evidence of such attorney even with reference to bona fides or ‘readiness and willingness’.  Examples of such attorney-holders are a husband/wife exclusively managing the affairs of his/her spouse, a son/daughter exclusively managing the affairs of an old and infirm parent, a father/mother exclusively managing the affairs of a son/daughter living abroad.”

[15]    In view of this legal principles laid down by the Supreme Court we are of the view that only on the basis of an affidavit of Mr. Ramu Agarwal, constituted attorney of the Complainant it cannot be said that the Complainant has proved her case of medical negligence against the Opponent No.1 Hospital and the Opponent No.2 Doctor in the treatment and/or diagnosis of the Complainant regarding her ailment of carcinoma of stomach.  It is also pertinent to note that in the papers no where we find Mr. Ramu Agarwal having accompanied the Complainant. He also did not produce railway ticket to show that he and the Complainant jointly traveled from his native place to Mumbai in the month of March-2003.

[16]    Secondly, Adv. A. S. Vidyarthi for the Opponents vehemently submitted and rightly so that the Complainant has not adduced any expert evidence in support of her complaint and she is relying upon certain documents and certain circumstances to point out that the doctors at the Opponent No.1 Hospital had made wrong diagnosis and thereby she was subjected to undergoing two cycles of chemotherapy though it was not warranted in the facts and circumstances obtainable.  Evidence of no doctor particularly from the Oncology Department of any hospital has been produced on the record by the Complainant.  This is another lacuna we are finding in the case presented by the Complainant.  The Complainant is relying upon certain documents to argue that the doctors at the Opponent No.1 Hospital had jumped to a conclusion that she was suffering from carcinoma stomach and advised her to undergo chemotherapy cycles and she did undergo chemotherapy cycles at Udaipur as directed by the Opponent No.2 Doctor when in fact, she did not suffer from the said ailment.  It appears that initially the Complainant had taken treatment at Purohit GeneralHospital and Research Centre where she was examined by Dr. R. K. Purohit on 16/3/2007.  Complainant’s ultrasound sonography of abdomen and pelvis was carried out and it was reported that the Complainant’s Porta Hepatis showed two enlarged lymph nodes of 31/39 and 36/13 mm. size. Dr. Purohit advised clinical diagnosis of hematemesis by endoscopy of gastro-intestine which was carried out in the same hospital on 16/3/2007 by Dr. R. K. Sahu who reported that there was unrelated growth in cardia just below the cardio esophageal junction in the lesser curvature growth extending near to incissura and an impression of growth in cardia of stomach.  It is thereafter the Complainant seems to have decided to approach the Opponent No.1 Hospital.  Initially, on 14/3/2007 the Complainant had suffered blood vomiting and she was immediately taken to SiddharthHospital where Dr. G. S. Agarwal treated her and advised the Complainant to go for endoscopy of abdomen and accordingly the Complainant visited Purohit GeneralHospital and Research Centre, Bargarh, Orissa.  Dr. Purohit had also advised for clinical diagnosis of Hematemesis by upper G.I. Endoscopy which was carried out in the same hospital on 16/3/2007 and Dr. R. K. Sahu submitted report that there was ulcerated growth in cardia.  After perusal of the report of Dr. R. K. Purohit it was suggested to the Complainant that biopsy sample may be taken to the Opponent No.1 Hospital to rule out possibility of cancer and hence biopsy sample was collected and brought in a sealed bottle to the Opponent No.1, Hospital where the Complainant was registered as a patient on 21/3/2007 and Dr. Shrikhande and the Opponent No.2, Dr. Sudeep Gupta examined her.  The Opponent No.2 Doctor advised the Complainant to take out X-ray, CT-Scan of abdomen and pelvis and some other tests.  The Complainant was also asked to go for CT-Scan of abdomen and pelvis in Jupiter Heart Scan who recorded finding –

“Ultrafast CT scan of the Abdomen and Pelvis reveals eccentric wall thickening involving the cardia and proximal stomach along the greater curvature.  This thickening measures approximately 2.15 cms.  The length of the involved segment is 8.56 cms.  Multiple enlarged lymph nodes are noted in the left gastric, prigastric, gastrohepatic, hepatodeodenal, paraaortic, pancreatic and portocaval and common iliac regions.  The thickening is seen to abut the body of the pancreas.”

[17]    Biopsy sample taken from ulcer margin was also given to the Opponent No.1 Hospital on 21/3/2007 for biopsy examination but report of that examination was not available on 23^rd/24^th March, 2007.  After seeing the various reports it is alleged by the Complainant through the affidavit of her constituted power-of-attorney holder, Mr. Ramu Agarwal that the doctors at the Opponent No.1 Hospital told the Complainant that she was suffering from cancer Stage-IV and she was advised to undergo chemotherapy which is at Annexure-D.  The Complainant was not prepared to stay at Mumbai and so a written prescription dated 24/3/2007 was given to her for taking treatment at her hometown which prescription is produced on the record at Annexure-E in which it is reportedly mentioned by the Opponent No.2, Dr. Sudeep Gupta that the Complainant, aged 57 years was a case of carcinoma stomach and she was advised to undergo chemotherapy and she was advised to take four cycles of chemotherapy under the doctor’s care and the patient would come for next follow-up action after four cycles of chemotherapy i.e. on 18/6/2007.  This prescription at Annexure-E is not signed by the Opponent No.2, Dr. Sudeep Gupta.  It is dated 24/3/2007.  The Complainant is asserting that this was a letter given to her so that she could take chemotherapy cycles at her hometown.  The Complainant’s only case is that she took two cycles of chemotherapy.  The Complainant purchased drugs for two cycles of chemotherapy each costing `19,943/-, total amounting to `39,886/- but she had lost purchase bills for purchase of drugs for two cycles of chemotherapy and purchase bill of drugs for third cycle of chemotherapy but refund bill of third cycle of chemotherapy was produced.  It was dated 13/6/2007.  It is marked as Annexure-F.  The Complainant’s contention is that the doctors asked her to undergo four cycles of chemotherapy on 24/3/2007 and she went to Udaipur and the Complainant took two cycles of chemotherapy in a hospital at Udaipur.  However, according to the Complainant, histopathological report dated 29/3/2007 revealed that stomach biopsy contained “moderately severe chronic active gastritis with atrophy and foveolar hyperplasia.  H. pylori organisms are noted.”  In this report there was no malignancy noted by the Histopathology Department.  The Complainant was again admitted in the Opponent No.1 Hospital on 12/6/2007 and she was discharged on 16/6/2007 against medical advice on her request.  In the Discharge Card it was mentioned that the Complainant was suffering from Carcinoma Stomach coupled with RPLN coupled with Right hydropneumothorax.  According to the Complainant, she was not at all suffering from cancer but she was subjected to chemotherapy.  The Complainant underwent two cycles of chemotherapy and she suffered mental and physical pain and trauma.  She had to spend lot of money and, therefore, she alleged that it was a case of medical negligence on the part of the Opponent No.1 Hospital and the Opponent No.2, Dr. Gupta who treated her in the Opponent No.1 Hospital.  However, the Complainant’s opinion is not sufficient to prove charge of medical negligence against the Opponents.  It might be that because the Complainant underwent two cycles of chemotherapy malignant cells might have burnt and ultimately, she found herself to be quite O.K. sans carcinoma of stomach.  The Complainant had again come back to the Opponent No.1 Hospital in the month of June-2007 where she was again submitted to various tests and the doctors continued further treatment and she took discharge against medical advice and went back on 16/6/2007 which fact is noted on the discharge card submitted by the Complainant at page (308).  The Opponent No.2 Doctor and Dr. Narayan, Medical Superintendent have stated on affidavit the treatment given to the Complainant, evaluation of clinical tests done at the Opponent No.1 Hospital.  They had advised chemotherapy to the Complainant for the ‘EOX’ regimen containing epirubicin, oxaliplatin and capecitabine and that this treatment was not administration of chemotherapy per-se but only a supportive treatment to improve the patient’s general condition.  Dr. Narayan in his chief deposed that the Opponent No.2 Doctor had advised the Complainant to take planned chemotherapy cycles at the Opponent No.1 Hospital so that she could be monitored properly and kept under close investigation for such investigation and management as may be required.  The Complainant, however, chose to leave Mumbai immediately to return to her native place and to take subsequent treatment there.  In the circumstances, the Opponent No.2 Doctor simply issued recommendatory letter dated 24/3/2007 for the chemotherapy to be taken under the guidance of an oncologist impliedly with such medical requirements, checks and precautions as may be warranted.  Dr. Narayan in paragraph (08) of his Examination-in-Chief has deposed that when the Complainant was presented for admission again on 12/6/2011 she had severe hypoalbuminemia, hyperkalemia, bilateral pedal edema and massive right sided hydropnemothorax.  Dr. Narayan in his examination-in-chief has deposed that various further tests were conducted on the Complainant and the reports thereof were evaluated.  Dr. Narayan further deposed that the Complainant had produced a report dated 28/6/2007 issued by Department of Gastroenterology of the Dr. Chaudhary Medical Hospital and Medical Research Centre Pvt. Ltd., Udaipur who still suspected the Complainant of carcinoma of stomach.  At Exhibit-4, page (371) of the complaint compilation there is report dated 28/6/2007 from the Department of Gastroenterology, Dr. Chaudhary HoHHHLKLKKDFK;LDDJKJDJKDJKDJDLSJK;SFJKL;SDJKLDJFLKFJDLKDSJ Hospital and Medical Research Centre Pvt. Ltd., Udaipur who recorded finding that “Patient is a follow up case of suspected Ca-cardia of stomach (biopsy unproven, but with distant lymphadenopathy) and has already received 2 cycles of chemotherapy (epirubicin, oxaliplatin, xeloda) at TMH, Mumbai.  Cricopharynx is normal….An irregular ulcer seen extending from cardia of stomach along lesser curvature to an extent of about 4 cm. from which multiple biopsies taken with multibyte forceps.”  In conclusions it is recoded as “? CA – CARDIA OF STOMACH”.  Complainant’s chest X-ray was taken at Dr. Chaudhary Hospital and Medical Research Centre Pvt. Ltd., Udaipur on 28/6/2007 and report of the X-ray reported impression as ‘? Pulmonary koch’s”.  Histopathology Report dated 29/6/2007 issued by Gupta Clinical Laboratory, Udaipur mentioned that tissue from gastric cardia were presented with clinical notes F/C carcinoma but microscopic examination revealed that the sections shows features of chronic atrophic gastritis with focal area of neutrophilic exudates and there was no evidence of dysplastic/malignant changes.  Diagnosis recorded was of acute on chronic atrophic gastritis. 

[18]    The Opponent No.2, Dr. Sudeep Gupta in his evidence stated that on going through various tests reports of the Complainant and on its evaluation it gave a clinical impression of carcinoma of stomach.  He further deposed that on administering of EOX on the Complainant on 24/3/2007 she responded to the said treatment and there were no side effects at all.  The Opponents wanted to continue treatment of the Complainant at Mumbai itself but relatives of the Complainant were in a hurry to go to native place and so, the Opponent No.2, Doctor gave a recommendatory letter for chemotherapy on the basis of available investigation reports and the chemotherapy was advised to be taken under the guidance of an Oncologist only.  The Opponent No.2, Doctor specifically pleaded reports of chemotherapy allegedly given to the Complainant by the Oncologists at her native place were not produced.  The Opponent No.2 Doctor also testified that in the report dated 28/6/2007 issued by Department of Gastroenterology, Dr. Chaudhary Hospital and Medical Research Centre revealed that the Complainant is still suspected of carcinoma of stomach and further X-ray report dated 28/6/2007 gave an impression of suspected pulmonary koch’s but not a definite impression.  The Opponent No.2 in his chief clarified that best possible professional care and skill was taken to start the patient on appropriate management in the then existing circumstances, when the overall picture of the Complainant strongly supported gastric carcinoma.  The Opponent No.2 Doctor deposed that he had performed his duties with reasonable care and competence and there was no negligence on his part and he further stated that for that matter even now suspicion of carcinoma stomach/pulmonary koch’s exists as per the Complainant’s own report from a hospital at Udaipur. 

[19]    At page (427) of the complaint compilation, there is a report dated 13/6/2007 issued by Opponent No.1 Hospital’s Diagnostic Services – Division of Cytology.  It is in respect of microscopic examination of pleural fluids and the impression of the laboratory was “Pleural fluid: Acute inflammatory reaction.  No malignant cells seen in these smears.”  Learned Counsel for the Complainant brought to our notice this report and submitted that this report was never seen by the Opponents and they started chemotherapy on the basis of clinical tests no bothering to do through histopathological report mentioned supra.  However, we are finding that there is no negligence of any kind on the part of the Opponent No.1 Hospital and the Opponent No.2 Doctor.  Treatment started was on the basis of well merited evaluation done by both the doctors alongwith their competent staff.  They considered reports produced by the Complainant.  Since there were two enlarged Lymph Nodes and since it was a case of stomach cardia doctors at the Opponent No.1 Hospital thought it fit to give best possible treatment to the Complainant and so, they recommended four cycles of chemotherapy under the guidance of an oncologist and monitoring and they wanted the Complainant to take treatment the Opponent No.1 Hospital itself but the Complainant wanted to take further treatment at her native place and hence, the Opponent No.2 Doctor issued a recommendatory letter dated 24/3/2007.  After allegedly undergoing two cycles of chemotherapy the Complainant was not in good health and so, she rushed back to the Opponent No.1 Hospital where further treatment was being administered to her but then, she opted for discharge against medical advice from the Opponent No.1 Hospital.  The Complainant was discharged from the Opponent No.1 Hospital on 16/6/2007 as is clear from the discharge card at page (308) of the complaint compilation.  In the discharge card in final diagnosis it was mentioned that it was a case of carcinoma of stomach.  Even after discharge from the Opponent No.1 Hospital the Complainant had gone to Dr. Chaudhary Hospital and Medical Research Centre Pvt. Ltd., Udaipur and on 28/6/2007 conclusion recorded by Dr. Sanjay Jain, MD (Medicine), DNB (Gastroenterology), Consultant Gastroenterologist, Hepatologist and Therapeutic Endscopist who prepared the Gastro-Duodenoscopy Report was “? CA – CARDIA OF STOMACH”.  In this view of the matter taking into consideration all the circumstances on the record we are of the view that the treatment given by the Opponents Nos.1 and 2 to the Complainant at the Opponent No.1 Hospital cannot be said to be treatment based on medical negligence of Hospital as well as the Opponent No.2, Dr. Sudeep Gupta and the doctors at the Opponent No.1 Hospital had taken all reasonable care and they had exercised proper professional skill with competence.  They had evaluated the clinical reports of the Complainant properly and correctly and ever after discharge, a hospital at Udaipur still suspected that the Complainant’s was a case of carcinoma of stomach and, therefore, we are of the view that there is no merit in the allegations made by the Complainant that she was diagnosed wrongly as a case of suspected carcinoma of stomach as alleged by her.  In the circumstances for want of expert evidence on record we hold that there is no substance in the complaint lodged by the Complainant as against the Opponents Nos.1 and 2 and both these Opponents cannot be held guilty of medical negligence of any kind as alleged by the Complainant.  We, therefore, record our finding for the Point No.(01), supra in the negative and as a natural corollary, we hold that the Complainant is not entitled to get any damages of any kind either from the Opponent No.1 Hospital or the Opponent No.2 Doctor since both these Opponents are not guilty of any kind of medical negligence worth the name.  Hence, we answer the Point No.(02) supra in the negative.

[20]    Before parting with this judgment we want to place on the record our disapproval in the way the Opponent No.2 Doctor had overlooked or not waited for histopathological report of biopsy brought by the patient from a hospital at Udaipur and given to Opponent No.1 Hospital’s Diagnostic Services – Division of Cytology.  Said report was ultimately available on 29/3/2007 but, it was collected by the patient from the Opponent No.1 Hospital in the month of June-2007 when the patient visited the Opponent No.1 Hospital for the second time after undergoing two cycles of chemotherapy.  This report simply mentioned that stomach biopsy contained “moderately severe chronic active gastritis with atrophy and foveolar hyperplasia.  H. pylori organisms are noted”.  This means that report was negative for malignancy.  In our opinion when this report was ready by 29/3/2007, the Opponent No.2 Doctor and even the Complainant should have waited till receipt of the said report but, they continued the treatment which according to us, was ultimately found to be necessary at that stage of the patient’s condition and patient’s then clinical settings and diagnosis.  However, it would have been prudent on the part of the Opponent No.2 Doctor to insist the patient to continue to remain as an indoor patient at the Opponent No.1 Hospital till the doctors at the Opponent No.1 Hospital received histopathological report of the said biopsy from concerned department.  In future the doctors should strive to lay hands on such type of histopathological reports if they have referred any sample of biopsy to the laboratory.  In any view of the matter ultimately we are finding that the Complainant has failed to prove that there was any medical negligence either on the part of the Opponent No.1 Hospital or the Opponent No.2 Doctor.  As such, we pass the following order:-

ORDER

                             The complaint stands dismissed.

                             No order as to costs.

                             Inform the parties accordingly.

Pronounced on 26^th June, 2012.