National Consumer Disputes Redressal
Suresh Kumar & Anr. vs Dr. K.G. Marwah & Anr. on 1 September, 2015
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 14 OF 2003 1. SURESH KUMAR & ANR. S/O. SHRI OM BRIHAM R/O. VILLAGE MANGASHPUR DELHI 39 ...........Complainant(s) Versus 1. DR. K.G. MARWAH & ANR. ESI HOSPITAL ROHINI DELHI ...........Opp.Party(s) BEFORE: HON'BLE MR. JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER HON'BLE MRS. REKHA GUPTA, MEMBER
For the Complainant : Mr. Pardeep Gupta, Advocate with Complainant in person For the Opp.Party : Mr. Saurabh Chadda, Advocate with Opposite party no.1 in person Dated : 01 Sep 2015 ORDER REKHA GUPTA
The facts of the case as per the complainants are that in June 2000, the complainant no.1 felt problem in urinating as the skin (phimosis) over his penis was not opening fully, hence, he went to ESI Hospital, Rohini, Delhi where Dr.K.G.Marwah attended to him. The said doctor after examination gave his opinion that the skin over the penis (phimosis) had to be circumcised.
2. On 3.7.2000, the complainant was admitted for the required operation in ESI Hospital, Rohini, Delhi and his operation was done on 5.7.2000 by Dr.K.G.Marwah and the phimosis was circumcised. The complainant was discharged on 13.7.2000. After operation dressing was done which was opened after a week and a wound was observed. The doctor did dressing again and prescribed medicine. On 22.7.2000 pus developed over the tip of the penis which was checked by the doctor and medicines were prescribed.
3. On 31.7.2000, the complainant no.1 requested Dr.Marwah to check him up properly as there was something wrong in the operated portion of this penis because he was having pain also, Dr.Marwah, opposite party no.1 told the complainant no.1 that in fact during operation due to mistake/negligent conduct on the part of the opposite party a portion of the tip of the penis was cut/injured which subsequently developed into pus/spot. However, Dr.Marwah assured the complainant no.1 that the penis wound shall be healed up during the course of time and he further prescribed medicines i.e. combiflam/brufin etc. to take whenever, the complainant no.1 feels pain. The complainant no.1 used to take the prescribed tablets whenever he felt pain. When the wound did not heal up, the complainant no.1 was advised to get the VDRE done from ESI Hospital. The complainant no.1 went to Aruna Asaf Ali Hospital where his test was done and it was found negative. Biopsy was also taken for cancer test and he was further referred to the skin and V.D.Clinic.
4. In the cytopathology report dated 1.3.2002 of Maulana Azad Medical College, it was opined that the biopsy revealed "Multiple bits of tissue showing squamous cell carcinoma", i.e., cancer of penis. The report gave a shock to the complainants. The complainant no.1 got admitted in the Hindu Rao Hospital on 1.4.2002 and was discharged on 18.4.2002 where his penis was amputated/cut to save him from further danger. His penis was amputated upto half of its length. The penis of the complainant no.1 was amputated further in the Safdarjung Hospital, New Delhi on 4.7.2002 and the doctors of the hospital also did reconstruction upto 1.5 cm by taking medial thigh flap. The dissection of penis urethra was performed, urethral fistula closed and urethra and flap adjusted and reconstruction stratum was done at S.J.Hospital. All this resulted into loss of his complete penis. The cancer of the penis developed solely due to the negligence and carelessness of ESI Hospital, Rohini and specially Dr.Marwah. The operation performed by Dr.K.G.Marwah of ESI Hospital, Rohini on 5.7.2000 was done in a most negligent and careless manner and the portion of the penis was injured by the opposite party which subsequently complicated the issue resulting in amputation of penis. It was the duty of Dr.Marwah to first take all the precautions i.e. conducting all tests such as biopsy etc. and after complete examination.
5. The complainants are hence entitled to the medical expenses incurred during the entire period i.e. June 2000 to till August, 2002. It is therefore, prayed that this Commission may direct the opposite parties to pay to the complainants as per details given below :-
Medical Expenses Rs.50,000/- Compensation Rs.50,00,000/- Rs.50,50,000/-
6. In their written statement, the opposite parties stated that the complaint is not maintainable as the complainants are not covered under the definition of "consumer". They have further contended that the complainant no.2 had no relationship with the opposite parties. The complaint is bad for non-joinder of the parties. The hospitals where the amputation had been done and had not made the parties to the proceedings.
7. They further stated that the complainant was suffering from phimosis for which he was rightly advised surgery (circumcision). Before undertaking surgery all the risks and complications are fully explained and a consent for surgery was taken. Only after the consent was given was the patient was taken up for surgery.
8. The operated site was healthy and the patient was discharged after inspection of the operated site. During the surgery of phimosis, it was also noted that the patient was suffering from the meatal stenosis which was also operated upon (meatotomy). This procedure needs urinary catheterization as it could cause urethritis and urethral discharge.
9. The complainant was examined again on 22.7.2000 and it was noted that he had some discharge per urethra and on and around the operated site (meatotomy) i.e. at the tip of penis. Due treatment was advised and the discharge was sent for full laboratory examination i.e. culture and sensitivity. And the result came showing that there was no problem and the pus culture showed sterile. As per records submitted by the complainant and the records available with the ESIC, it is clearly evident that he was examined on 22.7.2000 and was advised rest and follow up after one week. He routinely came to attend the surgical OPD after the expiry of one week for further advice and collected the reports of investigations, i.e. culture and sensitivity of urethral discharge. He did not have any specific complaint except for discharge from the operated site (meatotomy). The culture being sterile it was considered that he may be case of "Sexually transmitted disease" (STD), therefore he was advised due treatment and was also advised to obtain the opinion of doctor of "skin and V.D.Clinic". He was also specifically advised to come for review in surgery OPD after obtaining the opinion of skin and V.D.Clinic. He was also specifically advised to come for review in surgery OPD after obtaining the opinion of skin specialist as the skin specialist is also a specialist for treatment of "sexually transmitted diseases" (STD).
10. As per the treatment record submitted by the complainant, it is clearly evident that the complainant never turned up for follow-up in surgical OPD after 31.7.2000 even when he as specifically advised to attend the surgical OPD (surgical outpatient department) after obtaining the opinion of skin (sexually transmitted diseases) specialist. During operation due to mistake/negligent during course of operation, a portion of tip of the penis was cut/injured. It was clearly explained to the patient after surgery that apart from phimosis he was also having meatal stenosis for which meatotomy which involved operation at the site of tip of penis was performed. This was evident on the basis of the record/discharge slip issued to him on 13.7.2000 and follow-up surgical OPD slip records of 17.7.2000 and 31.7.2000 submitted by him.
11. It is also wrong to state that the complainant used to seek the advice of Dr.K.G.Marwah intermittently. His records clearly depict that he never turned up to the opposite party no.1 for follow up after 31.7.2000 even when he was specifically asked to do so. Hence, the complainant had submitted a false affidavit in order to cover a long gap of about two years. He had also not produced any records of treatment for a period of about 1 ½ years after 31.7.2000. This clearly proved that he was alright and was not suffering from any ailment/problem at the site of operation. Injury can never lead to cancer. Rather the circumcision protects cancer and this fact was also depicted in the books also one of the books was text book of surgery by belly and love. The real cause of cancer was not known.
12. The document submitted by the complainant did not reveal that he was advised VDRL in ESI Hospital. However, the OPD report of Aruna Asaf Ali Hospital dated 20/28th January, 2002, showed VDRL negative. It was hence clear that he was being treated for STD at Aruna Asaf Ali Hospital in January, 2002 and that there was no evidence of caner of penis till then. The patient never got himself examined by opposite party no.1 as had been alleged in this para. However, the OPD ticket of the hospital dated 7.2.2002, mention the diagnosis of Balanopossthitis and he had been referred to skin and VD clinic by some other doctor. It may be noted that after circumcision, the person cannot suffer from posthitis as the prepuce which leads posthitis had already been excised by surgery. So this document cannot belong to the same person who was operated upon by opposite party no.1. Further, the fact stands proved on this basis that on 7.2.2002, he did not get himself examined from opposite party no.1 despite the fact that opposite party no.1 was still in the same hospital and on the same post. The document as submitted by the complainant also does not mention or give the opinion that the complainant may be suffering from CA penis. It may be noted that CA penis is very easy to detect/suspect on clinical examination and cannot be missed.
13. It was only in late February, 2002, that the complainant developed a growth over the penis as per the records of Asaf Ali hospital submitted by him. A biopsy was taken of the same on 20.2.2002 at Aruna Ali Hospital. It is evident from the records submitted by the complainant which proved that he never came for follow up to the opposite party no.1 after 31.7.2000. The complainant after period of more than 1 and ½ years came to the ESIC Hospital and was referred to Safdarjung Hospital Cancer Clinic on 10.3.2002. Instead of approaching the said hospital the complainant got his treatment from Hindu Rao Hospital.
14. It is also submitted that the records of Hindu Rao Hospital (discharge slip of 18.4.2002) submitted by complainant clearly stated that he was suffering from swelling over the penis only for the last three months only and the operation that was performed was a partial amputation of penis, commensurate with the history of the patient as has been entered in the records of Hindu Rao Hospital and submitted by the complainant. It appears that the complainant developed fistula in urethra and subsequently surgery was done to correct the same.
15. We have heard the complainant in person alongwith Shri Pradeep Gupta, Advocate and Shri Subhash Chadda, Advocate for opposite parties alongwith opposite party No. 1 in person.
16. The complainant contended that the operation conducted by opposite party no.1 was done in a careless manner and this has led to development of a fistula in the urethra resulting in cancer and the cause of amputation of his penis. The opposite party no.1, however, contended that from the medical record available, it was evident that the complainant no.1 was admitted to the ESI hospital on 3.7.2007 and successfully operated on 5.7.2007. He used to come for follow up treatment. He was suffering from phimosis for which he was rightly advised circumcision. During the surgery of phimosis, it was also noted that the patient was suffering from meatal stenosis which was also operated upon (meatotomy). On 22.7.2000, on one of the follow up visits it was noted that the complainant had some discharge per urethra and on and around the operated site (meatotomy) at the tip of penis. Due treatment was advised and the discharge was sent to full laboratory examination i.e. culture and sensitivity. And the result came back showing that the culture was sterile and there was no infection. On 31.7.2000, he was advised to obtain the opinion of a V.D.Clinic and get VDRL test but after 31.7.2000, the complainant no.1 did not visit either of the opposite parties for follow up treatment.
17. From the record on file, it is seen that the complainant no.1 had been consulting opposite party no.1 from June, 2000 and he was advised surgery of phimosis. Prior to the surgery, the required tests and investigations were got done. After the operation by 17.7.2000 the wound healed. On 22.7.2000, he was advised rest and follow up after one week. On 31.7.2000, he was advised to obtain a "skin opinion" and come for review. However, after that he did not return for further follow up. Thereafter, only on 30.3.2002, he went again to opposite party no.2 with "swelling in penis - 2 months case of CA penis proved by biopsy done outside and investigated. PAC already done outside, G C fair, Abd soft." He was thereafter referred to Safdarjung Hospital. It would appear that after the said operation done by opposite party no.1 complainant no.1 suffered no problem for one and half years and there was no medical record on file for that period. Thereafter in January, 2002, he went for VDRL test and the result was negative. On 16.2.2002, the report of cytopathology, recorded "Penile growth multiple bits of tissue showing squamous cell carcinoma (cancer of penis)".
18. Thereafter, he undertook treatment which involved imputation of the penis at different times. The medical history as recorded by Hindu Rao Hospital on admission on 1.4.2002 also indicated that he had suffering from swelling over the penis only for the last three months. The pathology report of 8.4.2002 also showed presence of a tumor. The complainant could provide no evidence or medical literature to establish his contention and allegation that the operation of circumcision by opposite party no.1 was done in negligent manner as also the subsequent treatment which led to him developing cancer of the penis.
19. As per literature on record, Circumcision seems to be protective and consequently neither Jews and Muslims appear to be afflicted. Human papilloma virus appears to be causative, while phimosis and poor penile hygiene are both associated with a higher prevalence. Surgical treatment of phimosis, include preputioplasting and circumcision. Surgical intervention with a meatotomy, an incision to enlarge the meatus, is the most reliable treatment pain at the tip of the penis can be controlled by oral anlages or warm baths.
While we sympathize with the complainant for the tragic loss of his penis due to cancer, based on available evidence, we are not convinced that the treatment by the opposite parties was the cause for his cancer and the resultant amputation. Hence, we have no hesitation in concluding that the complainant has failed to establish his complaint of medical negligence.
The complaint is hence dismissed with no order as to cost.
......................J AJIT BHARIHOKE PRESIDING MEMBER ...................... REKHA GUPTA MEMBER