Presented by Miss R. Pattnayak, President .
The Brief fact of the case are that on Dt.20/09/2009, the Complainant approached the institute of Opposite Party namely Bangalore Institute of Oncology, T.M. Specialty centre, No.8 P. Kalinga Rao Road, Sampangi, Ram Nagar, Bangalore for her treatment as she was suffering from Brain Tumor (meningioma of left fronto parietal region). After consultation with the doctors she deposited Rs. 1,50,000/-( Rupees one lakh fifty thousand) only on Dt.21/09/2009 including a sum of Rs. 3,00,000/-(Rupees three lakh) only within Dt.26/09/2009 for the expenses for the cost towards different test and treatment required for the same. After treatment in the said hospital. She was discharged from the hospital on Dt. 27/09/2009 after declared by the doctor of institute that she is free from the ailments and no further treatment is necessary for her. She was asked by the doctors of the Opposite Party to report in the institute three months there after for further examination. Like wise she was asked to report in the institution two times more in an interval of three months. During the period of treatment she was staying in a nearby hotel with her attendants to the institute. The Complainant had to spend about Rs. 1,50,000/- ( Rupees one lakh fifty thousand)only including traveling expenses, foading and hotel expenses with her caretakers. The Complainant alleges that in spite of gaining good health, she was infected with T.B. and besides this she also started developing multifarious complexities like slurring of speech and growing weakness in the right hand grip. Finding no way out, she was admitted in Bombay Hospital, Institute of Medical Sciences Neurological Unit on Dt.15/07/2010 to save her life loosing faith in the treatment of the Opposite Party and under went medical surgery on Dt. 16/07/2010 and after successive treatment she was discharged on Dt. 23/07/2010 from that hospital.
Being aggrieved by the wrong treatment on the part of Opposite Party because of which the Complainant suffered from different ailments and which has very adverse and serious financial and emotional consequences for him, Complainant filed a Complaint in this Forum on grounds of medicals negligence and deficiency in service against the Opposite Party and prayed that the Opposite Party be directed to pay her a compensation of Rs. 13,00,000/-(Rupees thirteen lakh)only besides the cost of litigation.
In support of her case the Complainant filed the following documents as well as Affidavit of Complainant.
Copy of Medical report of Sudhadevi Agrawal from Bangalore Hospital of Institute of Oncology TM speciality Center, Bangalore.
Copy of medical report Sudhadevi Agrawal from Bombay Hospital of Institute of Medical Science, Neurosurgerical Unit Bombay.
Receipt showing payment of various expenses by Bombay Hospital and Money Receipt.
Receipts showing payment issued by P.D. Hiduja National Hospital, Mumbai.
Copies of prescription and receipts showing treatment of the Complainant.
Medical prescription Dt.10/09/2009.
Medical prescription Dt.05/09/2009.
Notice was duly served upon the Opposite Party. The Opposite Party appeared and filed his version on Dt,11/02/2012.
Opposite Party in his written version denied the allegation made against him. It was contended that this Forum has no jurisdiction to decide the case. On merits, it was denied that there was any medical negligence or deficiency in service on the part of Opposite Party because the patient was rendered appropriate treatment and was discharged with out any complication or side effects. It is submitted by the Opposite Party that on Dt.20/09/2009, the Complainant visited the hospital of the Opposite Party and consulted Dr. Sridhar with complaints of weakness in the right upper limb, speech difficulty, restlessness, vomiting and morning headaches. On examination, she was diagnosed with menigioma and was advise for surgery. Since Stereotactic Robotic Radio Surgery is an alternative to open surgery in case of meningioma, the procedure of the same was explained to the patient and her relatives. It was also informed to them that if the patient did not respond to the Stereotactic Robotic Radio Surgery or did not show any signs of progress, she would require an open surgery. After completely understanding the pros and cons of the treatment its risks and likely complications, including swelling of the lesion and necrosis, non-response etc., the Complainant and her relatives gave the consent for Stereotactic Robotic Radio Surgery. After discussing in the combined clinic, the treating doctor planned for PET MRI based cyber knife. PET DOTA Scan was done on Dt.22/09/2009 which revealed a well differentiated smooth margined mass measuring 3.5 X 3 c.m. in the left post parietal region, intense homogeneous enhancement, mild perlesional white matter oedema and mass effect. All treatment options were discussed with the Complainant. Since she was not ready for the surgery, cyber knife radio surgery was done after consulting the experts. The second option of cyber knife had its own calculated risk which was explained to the patient. After the treatment as per the protocol, the Complainant was asked to visit once in 3 (three)months for follow-ups. The doctor supported the patient all this while over the phone. In one of the follow-ups the PET DOTA Scan showed a progression in the lesion of the lung which could have been missed with out the whole body scan. It was investigated throughly and a diagnosis of Tuberculosis was made based on the findings. The patient was treated for the same. The meningioma showed signs of changes and response to the Stereotactic Robotic Radio Surgery. In subsequent follow-ups, the patients symptoms increased because of swelling of the surrounding brain lesion, which is expected after the treatment. When the patients symptoms increased due to brain oedema (swelling), all the efforts were made to decease the same. Inspite of these effort the patients symptoms progressed and repeat scans showed that the necrosis part of the tumor was increasing. After consultation with an expert team, the doctors decided to prepare the patient up for the surgery and same was suggested to her. However the Complainant did not undergo surgery at Opposite Party Hospital. The treating doctor always discussed the case with the patient, and also with the doctor who conducted the surgery at Bombay Hospital. He always supported the patient and co-ordinated with her fully and on all occasions.
The Opposite Party submits that the Complainant has been treated with due care and diligence and according to the established standard of medical practice and that there has been no negligence what so ever an the part of the treating doctor as alleged by the Complaint. So the Hospital is not liable to pay the amount claimed by the Complainant towards deficiency of service. So, the Complaint petition having no merits deserves to be dismissed.
In support of his case the Opposite Party filed the following documents and written argument along with citations.
Registration form dated 21/09/2009.
History and physical Exam.
Whole body DOTANOC Pet CT Scan Dt.22/09/2009.
Cyberknife Treatment Record Dt.22/09/2009.
Patient consent for cyberknife Therapy Dt.23/09/2009.
Dose statistics Table dated 23/09/2009.
Plan review report Dt.23/09/209 and Dt.24/09/2009.
Path Checklist dated 23/09/2009 and Dt.24/09/2009.
Cyberknife Daily Treatment record dated Dt.23/09/2009 to Dt.25/09/2009.
Cyberknife Treatment summary Dt.24/09/2009 to Dt.25/09/2009.
Cyberknife case summary.
Whole body DOTANOC Pet CT Scan dated 29/012/2009.
Oncology Flow Chart Dt.05/04/2010.
Heard the matter from both the sides and have care fully gone through the evidence on record. On the basis of the above pleadings of the Parties, the following issues have been framed for better appreciates and adjudication of the case at hand.
I S S U E S
Whether the case is maintainable before this Forum ?
Regarding this issues, the Opposite Party has submitted that, this Forum has no jurisdiction over this complaint as the Complainant failed to satisfy the Section-11 of the Consumer Protection Act-1986 as well as the Complainant does not even make out a whisper about the place where the cause of action has arisen. To this Complainant has submitted that cause of action arose within the territorial jurisdiction of the Forum at her native place at Sohella and the Complainant was treated at Bangalore and after returning from Bangalore to her native place at Sohella, complicacy was developed regarding the health. So part of cause of action arose at Sohella which is within the jurisdiction of this Forum. In this respect, we have duly considered the submission of Complainant attending through the record of Medical Prescription Dt.10/09/2009/ Dt.05/09/2009 filed by the Complainant which clearly supports the contention of the Complainant. Since the Opposite Party has not adduced any evidence to the contrary regarding this issue, we are of the opinion that partly arose of cause of action is a substantial ground for maintainability of the case. Accordingly, this issue is answered in favour of the Complainant, as this forum has jurisdiction to entertain the case.
Whether there is any negligence or deficiency in service on the part of the Opposite Party and whether the Complainant is entitled to get any relief as sought for ?
Regarding this issue, the allegation of the Complainant is that wrong treatment was meted out to her at the Opposite Party's hospital and tuberculosis occurred as a complication following the surgery along with other complication like she started developing of multifarious complexities like slurring of speech, weakness in the grip of highest arm. So she had no option but to get herself admitted at the Mumbai Hospital Institute of Medical Science to save her life and discharged from this hospital after successful treatment there.
To this the Opposite Party has submitted that after the findings of the PET DOTA SCAN cyberknife Radio surgery was performed on her, after the inherent calculated risks in this procedure were clearly explained to her. The Complainant was rendered with the required treatment without developing any complication or side effects and hence discharged with the prescribed medication. After surgery (post surgery) the Complainant was advised to visit the Opposite Party's hospital for follow- ups. In one such follow-up, PET DOTA Scan conducted on her showed a progression of lession in her lung. After thorough investigation of the same, a diagnosis of tuberculosis was arrived at. The Complainant was then prepped up for the proper medication for Tuberculosis and given proper treatment. It is further submitted by the Opposite Parties is that Tuberculosis could have been an underlying condition persistent even before the surgery but manifested only later but it (T.B) can not be occurred as a complication following the surgery. Further, the meningioma showed signs to the cyberknife Radio surgery, performed on her previously. Further follow up showed an increase for on set of the Complainant's symptoms, as the surrounding brain lesion had swelled up. In spite of all efforts taken on part of the Opposite Party her symptoms increased. There fore, after consultation with an expert team, the doctors considered her for surgery but the Complainant refused surgery at the Opposite Party's hospital against the doctors recommendation and then admitted her self to the bombay hospital institute of Medical Sciences instead of her own accord. As due treatment was rendered to the Complainant at every step of the way and reasonable degree of care has been exercised by the doctors of the Opposite party, so the allegation of wrong treatment by the Complainant against the OP are vague and base less.
Perused the whole record in sequence wise and occurrence wise and found there is no negligence in the treatment part of the Opposite Party. We also conceived the knowledge of treatment by referring different books, journal and electronic processes and found that, Cyberknife Radio Surgery is a synonymous to the Stereotactic Robotic Radio Surgery and it is a preliminary treatment of meningioma to reduce the bleeding during the surgery afterwards, which was done in the instant case by the Opposite Party after consulting their experts and after that the patient was discharged with required drugs and steroids which is clearly reveals from the documents filed by the Complainant and Opposite Party. Regarding the Complication of infection of Complainant with Tuberculosis after post surgery, we perused the Bronchoscopy report Dt.04/01/2010. Discharge summary report of Bombay hospital, Institute of Medical Sciences filed by the Complainant and from the treatment record filed by the Opposite Party at annexure- 40 which clearly reveals that patient had the symptoms of caseous granulma brochoscopic biopsy and was started on AKT4 since January-2010 by the Opposite Party which is a treatment Modality for Tuberculosis. So the treatment delivered by Opposite Party to the patient was quite ethical, essential, life saving and in appropriate time. So, the allegation of Complainant that complication of T.B. arises after post surgery can not be believable be cause the Opposite Party have investigated thoroughly and diagnosed as T.B. for which the patient has been treated appropriately. The instant case should have been discussed in a better way if the Complainant could have filed the expert opinion regarding the medical negligence on the part of Opposite Party.
Law is well settled that in case of medical negligence it is always better in order to reach a just conclusion to have the assistance of expert opinion i.e. expert doctor's opinion who are having much experience in the subject. Further settled principle of law is that simply because the Complainant submit his allegation in the complaint petition regarding negligence of doctors it can not be concluded that doctor were guilty of medical Negligence. No expert opinion has been produced by the Complainant in the present case before this Forum as the burden of proving negligence lies on the Complainant. On this point, the following citations cited by Opposite Party regarding the burden of proof and expert opinion.
Indian Medical Association Vrs Santhana
Dr. Akhil Kumar Jain Vrs Lallan Prasad, II (2004) CPJ-504.
Amar Singh Vrs Frances Newton Hospital and another, I(2001), CPJ-8.
Ashok Kumar Vrs Dr. Suresh Sharma, I(2001) CPJ-478.
Mam Chand Vrs Dr. GS Mangat of Mangat Hospital, I(2004) CPJ-79 (NC).
Dr. Smt. Kumud Garg Vrs Raja Bhatia, I(2004) CPJ-369.
Smt. Vimlesh Dixit Vrs Dr. R.K.Singhal, I(2004) CPJ-123.(Uttarnchal).
Dr. Harkanwaljit Singh Sain Vrs Gurbax Singh and another I(2003) CPJ-153(NC).
Sardool Singh Vrs Munilal Chiopra and another, I(1999) CPJ-64 (Punjab).
Dr. Manjit Singh Sandhu Vrs Uday Kant Jhakur and others III (2002) CPJ-242.
Jai Prakash Saine Vrs Director, Rajiv Gandhi Cancer Institute and Research Centre and others, I(2003) CPJ-305(Delhi) .
Marble City Hospital and Research Centre and others Vrs V.R. Soni, II (2004) CPJ 102 (MP).
Inderject Singh Vrs Dr. Jagdeep Singh, IV (2004) CPJ 20(NC).
Nirmalendu Paul Vrs Dr. P.K.Bakshi and anothers, III (2000) CPJ-79.
Surinder Kumar(Laddi) and another Vrs Dr. Santosh Menas and others, III (2000) CPJ-517.
Rajinder Singh Vrs Barta Hospital and Medical Research Center and another, III (2000) CPJ 558 holds good, because it is the Complainant to prove the Negligence or deficiency in service by adducing expert evidence or opinion and this fact is to be proved beyond all reasonable doubts. Mere allegation of negligence, no way help to the Complainant.
Ingredients of Negligence
The Doctor owes a duty of care to the patient.
The doctor has breached his duty of care.
The patient has suffered an injury due to this breach.
Further to decide the case of medical negligence, essentially three following principles are applied.
Whether the doctor in question possessed the Medical Skills expected of an ordinary skilled practitioner in the filed at that point of time.
Whether the doctor adopted the practice (of clinical observation diagnosis-including diagnostic tests and treatment) in the case that would be adopted by such a doctor of ordinary skill in accord with (at least) on of the responsible bodies of opinion of processional practitioner in the filed.
Whether the standards of skills/knowledge expert of the doctor, according to the said body of medical opinion, were of the time when the events leading to the allegation of medical negligence occurred and not of the time when the dispute was being adjudicated.
On this point the Opposite Party relied on the citations of :-
Dr. Laxman Balkrishan Joshi Vrs Dr. Trimbak Bapu Godbole and another (AIR 1969 SC 128).
Achutrao Haribhau Khodwa Vrs State of Maharastra, AIR 1996 SC 237.
Dr. Akhil Kumar Jain Vrs Lauan Prasad, II(2004) CPJ-504.
Ram Avatar Sharma Vrs Dr. Nabin K. Pattnaik I (2012) CPJ 502 (NC) holds good
Apply these principles and citations, in the instant case we found that the Opposite Party were well qualified to deal with this case and that they conducted the required and essential clinical and diagnostics tests before the cyberknife radio surgery to which also the docotrs of Bombay Hospital also not given any adverse opinion about the Opposite Party's treatment.
What constitute medical negligence is now well established by a plethora of Rulling of Hon'ble Supreme Court in India.
Jacob Mathew Vrs State of Punjab (2005) 6 SCC(1)
Indian Medical Association Vrs V.P. Santha (1995) 6 SCC 651
Bolam Vrs Frien Hospital Management Committee (1957) I WLR 582.
Hence with foregoing discussion we held that, the Opposite Party is not liable for Medical Negligence, because in the instant case, the Complainant has totally failed to establish that the Opposite Party is guilty of negligence and deficiency in service and the Complainant on whom there was burden to prove and who also had the opportunity to produce medical expert opinion or evidence has failed to do so. So far the above reason we don't find any merit in the petition of Complainant and therefore the complaint case is here by dismissed. However, before concluding we would like to make it clear that the dismissal of the present complaint would not operate to the prejudice of the Complainant in the matter of pursuing any other remedy as may be available to the Complainant under any other law for the time being in force. In the facts and circumstances of the case, Parties are left to bear their own costs.
The present complaint filed by the Complainant stands disposed off accordingly.
Typed to my dictation
and corrected by me.
I agree, I agree, I agree, (Miss Rajlaxmi Pattnayak) ( Smt. Anjali Behera) (Sri Pradeep Kumar Dash)
P r e s i d e n t. M e m b e r. M e m b e r.
