State Consumer Disputes Redressal Commission
M.L.Mishra vs Jawaharlal Nehru Cancer Hospital on 27 May, 2026
STATE CONSUMER DISPUTES REDRESSAL COMMISSION
MADHYA PRADESH
FIRST APPEAL NO. SC/23/FA/13/1216
M.L.MISHRA
PRESENT ADDRESS - NULL,MADHYA PRADESH.
.......Appellant(s)
Versus
JAWAHARLAL NEHRU CANCER HOSPITAL
PRESENT ADDRESS - NULL,MADHYA PRADESH.
JAWAHARLAL NEHRU CANCER HOSPITAL
PRESENT ADDRESS - A,MADHYA PRADESH.
JAWAHARLAL NEHRU CANCER HOSPITAL
PRESENT ADDRESS - A,MADHYA PRADESH.
.......Respondent(s)
BEFORE:
HON'BLE MRS. JUSTICE SUNITA YADAV , PRESIDENT
HON'BLE MRS. DR. MONIKA MALIK , MEMBER
FOR THE APPELLANT:
SH. D. JOSHI (Advocate)
FOR THE RESPONDENT:
SH. ENOSH GEORGE / SH. M. CHOUKSEY / MS. PREETIMA SHRIVASTAVA / SH.
ANKUR PASTOR (Advocate)
SH. M. CHOUKSEY (Advocate)
MS. P. SHRIVASTAVA (Advocate)
DATED: 27/05/2026
ORDER
M. P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PLOT NO.76, ARERA HILLS, BHOPAL FIRST APPEAL NO. 1216 OF 2013 (Arising out of order dated 18.06.2013 passed in C.C.No.425/2009 by District Commission, Bhopal) ARVIND MISHRA, S/O LATE M.L.MISHRA, R/O 106, ROYAL CHINAR, HOSHANGABAD ROAD, BHOPAL (M.P.) ... APPELLANT.
Versus
1. JAWAHARLAL NEHRU CANCER HOSPITAL & RESEARCH CENTRE, THROUGH ITS DIRECTOR K.V.PANDYA, IDGAH HILLS, BHOPAL (M.P.)
2. DR. T. P. SAHU, DM CONSULTANT ONCOLOGIST, JAWAHARLAL NEHRU CANCER HOSPITAL & RESEARCH CENTRE, IDGAH HILLS, BHOPAL (M.P.)
3. DR. PRADEEP KOLEKAR, PHYSICIAN, JAWAHARLAL NEHRU CANCER HOSPITAL & RESEARCH CENTRE, IDGAH HILLS, BHOPAL (M.P.)
4. RAJEEV TRIPATHI, X-RAY TECHNICIAN, JAWAHARLAL NEHRU CANCER HOSPITAL & RESEARCH CENTRE, IDGAH HILLS, BHOPAL (M.P.)
5. UNITED INDIA INSURANCE COMPANY LIMITED, THROUGH THE BRANCH MANAGER, CBO-III, M.P.NAGAR, ZONE-II, BHOPAL (M.P.) .... RESPONDENTS.
FIRST APPEAL NO. 1278 OF 2013 (Arising out of order dated 18.06.2013 passed in C.C.No.425/2009 by District Commission, Bhopal) JAWAHARLAL NEHRU CANCER HOSPITAL & RESEARCH CENTRE, THROUGH ITS DIRECTOR K.V.PANDAYA, IDGAH HILLS, BHOPAL (M.P.) ... APPELLANT.
Versus
1. ARVIND MISHRA, S/O LATE M.L.MISHRA, R/O 106, ROYAL CHINAR, HOSHANGABAD ROAD, BHOPAL (M.P.) -2-
2. DR. T. P. SAHU, DM CONSULTANT ONCOLOGIST, JAWAHARLAL NEHRU CANCER HOSPITAL & RESEARCH CENTRE, IDGAH HILLS, BHOPAL (M.P.) PRESENTLY WORKING AS DIRECTOR, CHIRAYU MEDICAL COLLEGE & HOSPITAL, BHAINSAKHEDI, BHOPAL-SEHORE ROAD, BHOPAL
3. DR. PRADEEP KOLEKAR, PHYSICIAN, JAWAHARLAL NEHRU CANCER HOSPITAL & RESEARCH CENTRE, IDGAH HILLS, BHOPAL (M.P.)
4. RAJEEV TRIPATHI, X-RAY TECHNICIAN, JAWAHARLAL NEHRU CANCER HOSPITAL & RESEARCH CENTRE, IDGAH HILLS, BHOPAL (M.P.)
5. UNITED INDIA INSURANCE COMPANY LIMITED, THROUGH THE BRANCH MANAGER, BRANCH OFFICE NO-III, M.P.NAGAR, ZONE-II, BHOPAL (M.P.) .... RESPONDENTS.
FIRST APPEAL NO. 1350 OF 2013 (Arising out of order dated 18.06.2013 passed in C.C.No.425/2009 by District Commission, Bhopal) RAJEEV TRIPATHI, S/O SHRI B. M. TRIPATHI, X-RAY TECHNICIAN, HOUSE NO.07, CAMPUS OF JAWAHARLAL NEHRU CANCER HOSPITAL & RESEARCH CENTRE, IDGAH HILLS, BHOPAL (M.P.) ... APPELLANT.
Versus
1. ARVIND MISHRA, S/O LATE M.L.MISHRA, R/O 106, ROYAL CHINAR, HOSHANGABAD ROAD, BHOPAL (M.P.)
2. JAWAHARLAL NEHRU CANCER HOSPITAL & RESEARCH CENTRE, THROUGH ITS DIRECTOR K.V.PANDAYA, IDGAH HILLS, BHOPAL (M.P.)
3. DR. T. P. SAHU, DM CONSULTANT ONCOLOGIST, JAWAHARLAL NEHRU CANCER HOSPITAL & RESEARCH CENTRE, IDGAH HILLS, BHOPAL (M.P.) PRESENTLY WORKING AS DIRECTOR, CHIRAYU MEDICAL COLLEGE & HOSPITAL, BHAINSAKHEDI, BHOPAL-SEHORE ROAD, BHOPAL -3-
4. DR. PRADEEP KOLEKAR, PHYSICIAN, JAWAHARLAL NEHRU CANCER HOSPITAL & RESEARCH CENTRE, IDGAH HILLS, BHOPAL (M.P.)
5. UNITED INDIA INSURANCE COMPANY LIMITED, THROUGH THE BRANCH MANAGER, BRANCH OFFICE NO-III, M.P.NAGAR, ZONE-II, BHOPAL (M.P.).... RESPONDENTS.
FIRST APPEAL NO. 1617 OF 2013 (Arising out of order dated 18.06.2013 passed in C.C.No.425/2009 by District Commission, Bhopal) DR. T. P. SAHU, DM CONSULTANT ONCOLOGIST, JAWAHARLAL NEHRU CANCER HOSPITAL & RESEARCH CENTRE, IDGAH HILLS, BHOPAL (M.P.) ... APPELLANT.
Versus
1. ARVIND MISHRA, S/O LATE M.L.MISHRA, R/O 106, ROYAL CHINAR, HOSHANGABAD ROAD, BHOPAL (M.P.)
2. DR. PRADEEP KOLEKAR, PHYSICIAN, JAWAHARLAL NEHRU CANCER HOSPITAL & RESEARCH CENTRE, IDGAH HILLS, BHOPAL (M.P.)
3. JAWAHARLAL NEHRU CANCER HOSPITAL & RESEARCH CENTRE, IDGAH HILLS, BHOPAL (M.P.)
4. RAJEEV TRIPATHI, X-RAY TECHNICIAN, JAWAHARLAL NEHRU CANCER HOSPITAL & RESEARCH CENTRE, IDGAH HILLS, BHOPAL (M.P.)
5. UNITED INDIA INSURANCE COMPANY LIMITED, THROUGH THE BRANCH MANAGER, BRANCH OFFICE NO-III, M.P.NAGAR, ZONE-II, BHOPAL (M.P.).... RESPONDENTS. BEFORE :
HON'BLE JUSTICE SUNITA YADAV : PRESIDENT
HON'BLE DR. MONIKA MALIK : MEMBER
-4-
COUNSEL FOR PARTIES :
Shri Deepesh Joshi, learned counsel for the complainant-Arvind Mishra. Shri Enosh George, learned counsel for the opposite party no.1 & 3 Jawaharlal Nehru Cancer Hospital & Research Centre and Dr. Pradeep Kolekar.
Shri Mohan Chouksey, learned counsel for the opposite party no.2 Dr. T. P.Sahoo. Shri Rajeev Tripathi, the opposite party no.4 in person (Ankur Pastor).
Ms. PreetimaShrivastava, learned counsel for the opposite party no.5-United India Insurance Company Limited.
ORDER (Passed On 27.05.2026) Per say Justice SunitaYadav, President:
All the aforesaid appeals arise out of the order dated 18.06.2013 passed by the District Consumer Disputes Redressal Commission, Bhopal (for short 'District Commission) in C.C.No.425/2009 therefore they are taken up together and are being disposed of by this common order.
2. By the order impugned dated 18.06.2013 passed in Case No.425/2009 the District Commission has allowed the complaint against the opposite party no.1-
Jawaharlal Nehru Cancer Hospital & Research Centre, Bhopal (JNCH) the opposite party no.2-Dr. T. P. Sahoo and the opposite party no.4-Rajeev Tripathi, X-Ray Technician of Jawaharlal Nehru Cancer Hospital & Research Centre, Bhopal (JNCH) and directed them to -5- pay Rs.50,000/-, Rs.1,00,000/- and Rs.10,000/- respectively to the complainant within a period of two months failing which interest @ 6% p.a. shall also be paid on the aforesaid amount. It is made clear that the opposite party no.1 is free to recover the amount from the opposite party no.5-insurance company. Costs of Rs.1,000/- is also awarded.
3. Being aggrieved by the impugned order dated 18.06.2013, the complainant has filed First Appeal No.1216/2013 for enhancement of compensation whereas, the opposite party no.1-hospital has filed First Appeal No.1278/2013, the opposite party no.4-Rajeev Tripathi, X-Ray Technician has filed First Appeal No.1350/2013 and the opposite party no.2-Dr.T.P.Sahoo has filed First Appeal No.1617/2013 for setting aside the impugned order. For convenience facts are taken from First Appeal No.1216/2013 unless otherwise stated.
4. The brief facts giving rise to the complaint before the District Commission are that the Ṃrs. Hemkumari Mishra, the wife of the complainant no.1. M.L.Mishra, who died during the pendency of appeal and mother of the complainant no.2 Arvind Mishra was initially suffering from Cancer breast (Right) since 1998 and was under consultation with the opposite party no.1-Jawaharlal Nehru Cancer Hospital, Bhopal -6- (JNCH) and the opposite party no.2-Dr. T. P. Sahoo (DM) (Oncology). Thereafter on 19.5.2006 she was diagnosed with Metastatis (right lung). It is alleged by the complainants that despite the test report dated 19.05.2006 which shows that Mrs. Hemkumari Mishra (deceased) was suffering from Metastasis Cancer the opposite parties Dr. Sahoo and Jawaharlal Nehru Hospital did not consider her as a cancer patient and on the basis of report of opposite party no.3-Dr. Pradeep Kolekar declared that she was suffering from Tuberculosis (TB) and referred her to Bhopal Memorial Hospital & Research Centre (BMHRC) which is a gas relief hospital for Bhopal Gas Victims. For six months she was treated for Tuberculosis and was not treated for cancer. When there was no progress, she was taken to the opposite party no.2-Dr.T.P.Sahoo on 04.12.2006 and he decided to give her treatment for cancer. From December-2006 to June-2008, the opposite party no.2-Dr.T.P.Sahoo treated Mrs. Mishra. It is further submitted that after Chemotherapy at opposite party no.1-hospital in June-2008 it was informed by the opposite party no.2-Dr.T.P.Sahoo that the patient was all right and in future she would not have any complaint of cancer on the basis of CT Scan report. In September-2008 on the basis of complaint of restlessness when Hemkumari Mishra was brought to the opposite party -7- no.2-Dr. T. P. Sahoo, he refused to treat Hemkumari Mishra as the complaint was not related to cancer. As per advice of the opposite party no.2-Dr. T. P. Sahoo, Hemkumari Mishra was taken to Dr. Hakimuddin Malvi for treatment, however, there was no relief even after treatment of Dr. Hakimuddin Malvi.
5. It is further submitted in the complaint that again on 30.09.2018 with complaint of restlessness, Hemkumari Mishra was brought to the opposite party no.2-Dr. T. P. Sahoo, Dr. T. P. Sahoo could not diagnosed the illness properly and on 01.10.2008 without any pathological test had given oral chemotherapy. On 10.02.2008, the opposite party no.2-Dr. T. P. Sahoo advised 1500 mg Capecitabine twice a day and Tab Morphine in every 6 hours. After taking the aforesaid two medicines and oral chemotherapy the condition of the patient Hemkumari Mishra deteriorated and she became restless and was uncomfortable whole night. On 03.10.2008 she started vomiting which was the side effect of aforesaid medicines Capecitabine and Morphine. Thereafter, the opposite party no.3-Dr. Pradeep Kolekar was informed about the condition of the patient Hemkumari Mishra but he neither came to see the patient nor treated her. The opposite party no.2- Dr.T.P.Sahoo wrongly informed that vomiting is -8- due to Morphine and instead of stopping Capecitabine advised to take the dose of 1500 mg Capecitabine. On advice of opposite party no.2-Dr.T.P.Sahoo the second dose of 1500 mg Capecitabine was given as also Morphine Injection was administered to the patient- Hemkumari Mishra due to which her condition deteriorated and she started vomiting. On advice of the opposite party no.2 & 3- Dr.T.P.Sahoo and Dr. Pradeep Kolekar, the patient-Hemkumari Mishra was taken for CT scan (brain) on wheel chair. At the time of her taking to CT scan she was continuously vomiting and shivering.
6. It is further alleged by the complainants that in CT Scan Room there was no Doctor and only an untrained technician Rajeev Tripathi was present. The opposite party no.4-Rajeev Tripathi administered an injection to the patient- Hemkumari Mishra whereas her condition was very poor and she was not in condition to lay down in CT Scan Machine. No consent was taken for performing CT scan of the patient-Hemkumari Mishra. For 20-25 minutes, the opposite party no.4- Rajeev Tripathi performed CT scan of the patient-Hemkumari Mishra. Despite repeated requests, the patient-Hemkumari Mishra was not taken out from the CT Scan Machine ignoring that her restlessness and nervousness. At the time of taking out from the -9- CT Scan machine, the patient-Hemkumari Mishra was unconscious and therefore she was taken to ICU. Later on she was declared dead. No reason of death of Hemkumari Mishra in CT Scan machine was told.
7. It is further alleged by the complainants that the opposite parties negligently referred the patient-Hemkumari Mishra for treatment of Tuberculosis for a period of six months and therefore, there was delay in treatment of cancer. There was no necessity to drain out the fluid from lungs and chemotherapy. No reason was shown to give Morphine and pain killer. After giving treatment of Morphine and Capecitabine, the patient-Hemkumari Mishra was continuously vomiting and without considering this aspect, Morphine and Capecitabine was continued. Without evaluating the correct position of the patient she was taken for CT scan and the CT Scan was conducted by untrained technician. All these acts prove medical negligence and deficiency in service on part of the opposite parties.
8. The opposite parties no.1 to 4 in their reply before the District Commission submitted that the wife of the complainant no.1 and mother of the complainant no.2, patient-Hemkumari Mishra was having a long reported history of Type-II Diabetes Mellitus and was brought to the hospital for the first time on 27.07.1998. Her registration number was -10- 1108/98. She was diagnosed to have Cancer Breast (Right) for which surgery (Modified Radical Mastectomy) (MRM) was performed on 03.09.1998. Thereafter treatment and various other therapies such as chemotherapy, hormonal therapy, were given to her in hospital. Till 30.01.2004 she regularly came to hospital for treatment and remained asymptomatic for considerable time. On 23.07.2004 she again came to opposite party no.1-hospital. On 15.12.2004 again cancer was found in her right breast. On 04.01.2005 again surgery was performed and radiotherapy was given. On 24.01.2006 it was found that she was not taking medicines regularly for Diabetes as advised by her doctor and the consequences of this irregularity in taking medicines were already informed to the family of the patient-Hemkumari Mishra. Thereafter again she became irregular in taking treatment of diabetes, the symptoms of which were found in her tests. On 25.02.2007 Hemkumari Mishra was brought to the opposite party no.1-hospital in altered consciousness and at that time her blood sugar level was 490.
9. It is further submitted that after surgery on 04.01.02005 and radiotherapy for a period of one and half year, there were no symptoms of cancer. On 16.05.2006 Hemkumari Mishra was brought to the opposite -11- party no.1-hospital with complaint of chest pain. On X-Ray and CT Scan 'Small lymph nodes in abdomen with patches of consolidation in right lung along with fibrosis at the bases of both lungs' were found and thereafter FNAC Neck was performed. In report dated 22.05.2006 no malignant cells were found but in the report it is found that there are granulomatous lymph adenitis and therefore she was referred to opposite party no.3-Dr. Pradeep Kolekar who got performed KP-90 test and as per KP-90 test report, Tuberculosis was diagnosed. Since the appellant hospital deals with treatment of cancer patients and Hemkumari Mishra was a gas victim, she was referred to Bhopal Memorial Hospital & Research Centre (BMHRC), a hospital for gas victims for treatment of Tuberculosis.
10. It is further submitted that again on 10.09.2006 when Hemkumari Mishra came to the opposite party no.1-hospital with complaint of knee pain, back pain, bone scan tests of whole body was performed and in the report Bone Metastasis was not found therefore, she was again advised to consult with Tuberculosis specialist. Again on 29.12.2006 Hemkumari Mishra came to the opposite party no.1- hospital with complaint of swelling in left arm pit. After different tests symptoms of cancer were found again. In January-2007 for six weeks chemotherapy was given to -12- her. On 25.02.2007 when she was brought to the hospital, her blood sugar was 490. On 07.03.2007 Hemkumari was advised to consult Endocrinologist & Neurologist. On 31.08.2007 after getting Ultrasound and X-ray done her condition was found to be normal. Thereafter on 10.06.2008 her chemotherapy for 20 weeks was started. Since cancer of Hemkumari Mishra reached to fourth stage which is incurable, therefore, her chemotherapy was stopped. Morphine was given as a pain killer and for the complaint of Dyspnea. In the year 2006 it has already been informed to the family member of Hemkumari Mishra that she could survive aprox. for 12 to 24 months.
11. It is further submitted that on 03.10.2008, the patient-Hemkumari Mishra was vomiting and therefore to ascertain that whether cancer had affected her brain, she was advised for CT scan. Since the family members of Hemkumari Mishra had already given consent for CT scan and CT scan was to be performed in emergency, therefore, her family members were orally informed about her taking to CT scan. Different parts of her body were already scanned by CT scan and she was not having problem in CT scan. The entrance of any other person is prohibited in CT scan room and only Technician remained there while putting her on C.T. -13- Scan machine and Panel Technician with Radiologist were remained present outside of the room. At the time of CT Scan of Hemkumari Mishra, Dr. Shrimali was present. It is further submitted that the opposite party no.4 is a qualified technician having five years' experience of running CT Scan machine
12. It is further submitted in reply that Hemkumari Mishra was suffering from Diabetes, Cancer and Tuberculosis since last 10 years. Severity of illness and her chances survival next to nothing were already explained by the opposite party doctors to the family members of Hemkumari Mishra. Since her diabetes was uncontrolled and she was irregular in taking treatment of Diabetes and therefore the possibility of attack of fourth stage of cancer cannot be ruled out. It was thus prayed that the complaint be dismissed as there is no deficiency of service or unfair trade practice on the part of opposite parties.
13. The opposite party no.5-United India Insurance Company Limited in its reply before the District Commission denying the allegations made in the complaint submitted that the opposite party no.1-Jawaharlal Nehru Cancer Hospital, Bhopal was indemnified under the insurance policy for the period 16.09.2008 to 15.09.2009. If the opposite party no.1 acted -14- against the policy terms and conditions then the insurance company is not liable for the same. If there was any claim under the policy, the opposite party no.1-hospital should have been informed the insurance company but the hospital has not given any information. The insurance company is not liable for the act of the opposite party no.1-hospital against the policy terms and conditions.
14. . It is further submitted that the District Commission held the opposite party no.1-JNCH deficient in service ignoring the fact that the opposite party no.2- Dr. T. P. Sahoo and the opposite party no.4-Technician Rajeev Tripathi were legally entitled to work with the hospital. Therefore, insurance company is not liable to pay the compensation. It was thus prayed that the complaint be dismissed against it.
15. The District Commission partly allowed the complaint and directed the opposite party no.1-hospital to pay Rs.50,000/-, the opposite party no.2-Dr. T. P. Sahoo to pay Rs.1,00,000/- and the opposite party no.4-Rajeev Tripathi to pay Rs.10,000/- to the complainants. It is further directed that since the opposite party no.1-hospital was insured with the opposite party no.5-insurance company, the hospital is entitled to receive the sum ordered from the insurance company. The opposite party no.1, 2 -15- and 4 were also directed to pay cost of Rs.1,000/- to the complainant. It is further directed that the aforesaid amount be paid within a period of two months from the date of order failing which interest @ 6% p.a. shall also be paid on the aforesaid amount except cost from the date of order till payment. However, the District Commission has exonerated the opposite party no.3-Dr. Pradeep Kolekar holding that deficiency in service is not proved against him.
16. Against the aforesaid impugned order, the complainants as also the opposite party no.1, 2 and 4 have filed their separate appeals. During pendency in appeal, the complainant no.1 M. L. Mishra died.
17. Learned counsel for the complainants (Appellants in First Appeal No.1216/2013) argued that Mrs. Hemkumari Mishra died on 03.10.2008 inside the CT scan machine in Jawaharlal Nehru Cancer Hospital, Bhopal because of medical negligence and deficiency in service on part of hospital, doctors and the technician. The death was caused during CT Scan (brain) which was performed by an unskilled and unauthorized X-Ray Technician Rajeev Tripathi in a most negligent manner without mandatory presence of a qualified Radiologist. The condition of the patient- Late Hemkumari Mishra was not monitored on 03.10.2008 as after -16- having consumed one dose of Capecitabine along with Morphine Injection there was adverse symptoms of aforesaid medicines which were completely ignored by Dr.T.P.Sahoo and Dr. Pradeep Kolekar. It is further argued that the patient was not given antiemetic medicine and she was sent to CT Scan on the fatal day in continuous stage of vomiting. Thus there was negligence on part of the opposite parties on 03.10.2008 is apparent. The affidavit of Dr. Shrimali has not been filed by opposite party despite the claim that he was present at the time of C.T. Scan. It is further argued that diagnosis of Tuberculosis and referral of patient-Late Hemkumari Mishra for a Tuberculosis treatment for a continuous period of around 8 months was clearly gross and patent negligence on part of opposite parties/respondents as there is nothing on record that the patient-Late Hemkumari Mishra was ever had Tuberculosis.
18. It is further argued on behalf of the complainant that Dr. T. P. Sahoo was not registered with M. P. Medical Council at the time of treatment so also Rajeev Tripathi has not been registered with M.P. Paramedical Council. It is therefore prayed that the appeal deserves to be allowed and compensation awarded by the District Commission deserves to be enhanced as claimed in the complaint. -17-
19. He placed reliance on the decisions of Hon'ble Supreme Court in Jaswinder Singh &Anr Vs Santokh Nursing Home & Ors. (2012) 12 SCC 550, Mohammad Suleman Ansari (D.M.S.) Vs Shankar Bhandari (2005) 12 SCC 430, Arun Kumar Agrawal &Anr Vs Santokh Nursing Home and Ors (2010) 9 SCC 218, Arun Kumar Manglik Vs Chirayu Health & Medicare Private Limited &Anr (2019) 7 SCC 401, Nazrul Sheikh Vs Dr. Sumit Banerjee &Anr (2024) 20 SCC 703 and a decision of Hon'ble National Commission in Appeal No.722 of 2003 decided on 08.01.2013 in support of his contentions.
20. Learned counsel for the opposite party no.1 & 3 (appellant-hospital in First Appeal No.1278/2013)/respondent no.1 & 3 argued that the impugned order passed by the District Commission is perverse and against the settled principles of law. It is further argued that allegations made by the complainant in complaint and appeal are baseless. It is further argued that Madhya Pradesh Medical Council after hearing the complainants on their complaint found that there was no negligence on part of Dr.T. P. Sahoo and Dr. Pradeep Kolekar in treatment of Mrs. Hemkumari Mishra. The allegation of the complainants that without any pathological tests chemotherapy was unnecessarily started is totally wrong as after -18- receiving normal report of KFT, LFT and CBP test oral chemotherapy with Capecitabine was started on 02.10.2018. This treatment is permissible by the government medical agencies as drug of choice. It is further argued that in fact, 5mg Morphine Injection was given to Late Hemkumari Mishra and Capecitabine was prescribed twice a day after interval of 12 hours and therefore allegation of the complainants that despite vomiting the Capecitabine was given again at 2PM is totally wrong. In fact, because of vomiting Capecitabine was also not given in earlier night. The allegation that there was no necessity of CT scan is totally wrong and baseless because despite medication when vomiting could not stop, to clear the doubt regarding possibility that fourth stage cancer reached in brain, decision for CT Scan was taken and Dr. Shrimali Radiologist was present at the time of CT Scan. It is further argued that no person can die because of CT Scan.
21. It is further argued that the allegation of the complainants that Dr. T. P. Sahoo was not registered with the Madhya Pradesh Medical Council and therefore he was not entitled to treat the patient is totally wrong because he was registered in Indian Medical Register and was entitled to practice in any part of India. The complainants alleged that the opposite -19- parties were negligent in not admitting the patient-Late Hemkumari Mishra in ICU from 30.09.2008 to 03.10.2008. In fact in ICU those patients are admitted who have undergone surgery or they are in need of special apparatus, ventilator etc. Late Hemkumari Mishra was in fourth stage of cancer which is incurable, she was also suffering from Tuberculosis and due to all these reasons her death was inevitable incident for which the opposite parties cannot be held liable without having any proof of their negligence. It is further argued that the complainants have not denied that Mrs. Mishra was suffering from Diabetes Mellitus. The opposite parties hospital and doctors treated the patient for cancer for a period of 10 years and during this period twice the cancer was cured. He argued that the impugned order passed by the District Commission is totally erroneous and deserves to be set-aside.
22. In support of his contentions, he placed reliance on the decisions of Hon'ble Supreme Court in Jacob Mathew Vs State of Punjab (2005) 6 SCC 1, Martin F D'Souza Vs Mohd. Ishfaq (2009) 3 SCC 1, Kusum Sharma & Ors. Vs Batra Hospital & Medical Research Centre (2010) 3 SCC 480. -20-
23. Learned counsel for the opposite party no.2 (appellant in Appeal No. 1617/2013) argued that the impugned order passed by the District Commission is perverse and against the settled principles of law. It is further argued that the opposite party no.2-Dr. T. P. Sahoo is a qualified and a reputed Medical Oncologist practicing in Bhopal since 2005 and on account of his degrees and repute in the field of Medical Oncology was inducted in the Editorial Board of some renowned journals. He had obtained his MBBS degree in April 1996, MD (General Medicine) degree in 2001 from Utkal University, Orissa and DM (Medical Oncology) degree in 2005 from Rajiv Gandhi University of Health Sciences, Bangalore. He got himself registered with Orissa Council for Medical Registration, Bhubaneshwar on 18.10.1997 and thereby registered in Indian Medical Register in terms of Section 23 of the Indian Medical Council Act, 1956 in 1997. It is further argued that privileges described in Section 15-2 (b) of the Indian Medical Council Act, 1956 entitled him to practice medicine in any part of India being registered in Indian Medical Register.
24. It is further argued that as per Section 24 (ii) of Madhya Pradesh Ayurvigyan Parishad Adhiniyam, 1987 the medical practitioner is entitled to privileges of Section 27 the Indian Medical Council Act, 1956 -21- (102 of 1956) and shall not be punished under this section for his non-registration in Madhya Pradesh. Similarly as per provisions of Section 30 of Madhya Pradesh Ayurvigyan Parishad Adhiniyam, 1987, the provisions of this Act are in addition and not in derogation of the provisions of the Indian Medical Council Act, 1956 (102 of 1956) containing general provisions applicable to all medical practitioners.
25. It is further argued that on complaint being made by the complainants, the M. P. Medical Council constituted an Ethics cum Disciplinary Committee who held that there was no medical negligence on part of the opposite party no.2-Dr. T. P. Sahoo. Also the Medical Council of India opined that there was no medical negligence and Section 7.20 of Professional Conduct, Etiquette and Ethics Regulation 2002 was not violated. The Medical Council of India (Board of Governors in Supersession of Medical Council of India in its judgment dated 03.03.2020 has absolved Dr. Tarini Prasad Sahoo of any wrongdoing with regard to issue of medical negligence and registration of his qualifications.
26. It is further argued that this case is a good example of dedicated services of Dr. T. P. Sahoo and other doctors who did their best to keep Late Hemkumari Mishra alive for almost ten years after being -22- diagnosed of Cancer (Breast) in 1998. It is further argued that though the District Commission in its impugned order dated 18.06.2013 has concluded that diagnosis of disease and treatment provided to Late Hemkumari Mishra was correct, despite that imposed compensation. It is further argued that on the basis of the cytology report dated 22.05.2006 suggested granulomatous lymphadenitis (? Tuberculosis) and non-presence of malignant cells, Mrs. Mishra was advised to undergo other investigations and was referred to concerned specialist. Dr. Pradeep Kolekar, who is a qualified medicine specialist advised further investigations and then referred her to BMHRC hospital for treatment of tuberculosis. It is further argued that on evidence of recurrence of cancer in the month of January-2007, chemotherapy was started as per standard care prevailing at that time after obtaining consent. Since no fact was clinically visible and no documented proof for recurrence of cancer in spite of investigations, it is completely false to conclude that Late Hemkumari Mishra was suffering from relapse of cancer during the period from May to December-2006.
27. It is further argued that at the time of her last admission, Late Hemkumari Mishra was suffering from dyspnea which was due to Lymphangitis Carinomatosis which is a severe form of infiltration of lungs -23- by cancer as is evident from CT Scan report. As Late Hemkumari Mishra had failed anthracycline and was taxane-refractory, Capecitabine was started which was standard of care in October-2008 for patient of Metastatic Cancer (Breast) who had failed anthracycline and was texane- refractory. The allegation of the complainants regarding giving Capecitabine in spite of vomiting is completely false as it was advised twice a day and next dose was scheduled around 8 to 9 pm in evening after 12 hours of first dose and therefore the Capecitabine was not given to Late Hemkumari Mishra after she vomited.
28. It is further argued that Since Late Hemkumari Mishra was suffering from dyspnea and cancer in advanced stage, Morphine 10 mg every 4 to 6 hours was advised in her interest and therefore it is wrong to say that overdose of Morphine was given. It is well known that nausea and vomiting are symptoms of brain metastatic as per medical literature and since Late Hemkumari Mishra was suffering from nausea and vomiting, to rule out the possibility of brain metastatic, CT Scan was suggested in her interest. It is further submitted that the treatment provided to Late Hemkumari Mishra with regard to her cancer care as per standard care of that time. Thus there was no negligence or deficiency in service on part of -24- the opposite party no.2-Dr. T. P. Sahoo. The District Commission has erroneously imposed compensation of Rs.1,00,000/- in his personal capacity whereas he was an employee of Jawaharlal Nehru Cancer Hospital & Research Centre, Bhopal. It is therefore prayed that the impugned order be set-aside.
29. None appeared for the opposite party no.4/appellant in First Appeal No.1350/2013-Rajeev Tripathi.
30. Learned counsel for the opposite party no.5-insurance company argued that the opposite party no.1-hospital was indemnified under the policy taken from the insurance company, however, the insurance company is not liable for any act of the opposite party no.1-hospital against the policy terms and conditions. In this case, the District Commission held the opposite party no.1-hospital deficient in service in appointing the opposite party no.2-Dr. T. P. Sahoo and the opposite party no.4- Rajeev Tripathi in their hospital without considering the fact that whether they were eligible to work with the hospital or not. In such circumstances, the insurance company is not liable to pay the amount as awarded by the District Commission against the opposite party no.1- -25- hospital. It is therefore prayed that the part of the order against the insurance company be set-aside.
31. Heard learned counsel for parties on IA-2, IA-4 & IA-5, theapplications dated 07.01.2016, 19.06.2017 & 10.11.2018 filed by the complainants/appellants in First Appeal No.1216/2013 under Order 41 Rule 27 of CPC for taking additional documents/evidence on record.
Along with IA-2 dated 07.01.2016, the complainants prayed to file documents as per list as under:
1) Letter dated 05.02.2014 issued by Superintendent of Police (North Region) addressed to the Registrar, M.P.Medical Council, Bhopal along with the investigation report (A-1)
2) Letter dated 28.07.2015 issued by Information officer, Rajasthan Medical Council, Jaipur, addressed to the complainants. (A-2)
3) Letter dated 13.03.2013 issued by the Public Information Officer of M.P.Medical Council addressed to the complainant no.2-Arvind Mishra (A-3)
4) Letter dated 16.11.2015 issued by the Registrar & Public Information Officer of M.P.Medical Council addressed to complainant no.2-Arvind Mishra
5) Registration of Dr. R. Shrimali with M.P.AyurvigyanParishad. (A-4)
6) Letter dated 04.05.2010 issued by Registrar, M. P. Medical Council addressed to Dr. R. Shrimali (A-5)
7) Letter dated 04.05.2010 issued by Registrar, M. P. Medical Council addressed to Dr. T. P. Sahoo (A-6) -26-
8) Letter dated 15.03.2011 issued by the Public Information Officer of M.P.Medical Council addressed to the complainant no.2-Arvind Mishra (A-7)
9) Order dated 23.09.2011 issued by Secretary, Government of M.P.Public, Health & Family Welfare Department, Bhopal (A-8)
10) Judgment dated 17.12.2015 passed by learned JMFC, Bhopal (A-
9) Along with IA-4 dated 19.06.2017, the complainants prayed to file documents as per list as under:
1) RTI Application Dated 23.03.2017 (AA-1)
2) Reply dated 19.04.2017 to the aforesaid RTI Application from National Institute of Tuberculosis & Respiratory Diseases, New Delhi. (AA-2)
3) RTI Application dated 06.04.2017 (AA-3)
4) Reply dated 17.04.2017 to the aforesaid RTI Application from Medical Council of India, New Delhi (AA-4)
5) Medical Opinion sought from the Health Care Portal Dated 02.11.2016 (AA-5)
6) Official information by World Health Organization regarding inaccurate blood tests for active tuberculosis. (AA-6)
7) Investigation report issued by Additional Superintendent Zone-3, Bhopal dated 18.04.2017 along with the statements of Dr. T. P. Sahoo dated 29.11.2016, Rajeev Tripathi Dated 03.12.2016, Dr. Pradeep Kolekar Dated 29.11.2016, Dr. S.A.S.Kazmi Dated 07.01.2017, Dr. Pradeep Shrivastava Dated 10.01.2017, Dr. Rameshwar Shrimali Dated 12.04.2017 & Supplementary Statements of Dr. Rameshwar Shrimali Dated 13.04.2017. (AA-7) -27- Along with IA-5 dated 10.11.2018, the complainants want to file documents as under:
1) Order Dated 22.11.2018 of M. P. Medical Council, Bhopal (AC-1) and correction letter dated 04.12.2018.
32. Learned counsel for the complainants/appellants in First Appeal No.1216/2013 argued that the aforesaid documents are necessary for adjudication of the case and therefore the same be taken on record.
33. On the other hand, learned counsel for the opposite party no.1 and 3 the hospital and Dr. Pradeep Kolekar opposed the IA-4 by filing written reply and prayed that the application is baseless and deserves to be dismissed.
34. Having heard learned counsel for the parties and considering the fact that these documents are necessary for a just and proper adjudication of these appeals, the applications IA-2, IA-4& IA-5 are allowed and the documents are taken on record.
35. The opposite party no.1 and 3/respondent no. 1 & 3 (In Appeal 1216/2013) the hospital and Dr. Pradeep Kolekar has filed IA-8, an application dated 09.03.2026 under Order 41 Rule 27 of CPC along with 3 documents for taking on record which are as under:
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1) Copy of letter dated 27.06.2013 addressed to Secretary, Public Health & Family Welfare Department, Government of M.P. sent by M. P. Medical Council.
2) Copy of order dated 15.04.2013 passed by M. P. Medical Council Bhopal
3) Expert Opinions received by the M. P. Medical Council.
The complainant/appellant in Appeal No.1216/2013 has not objected the genuineness of the aforesaid documents and expressed no objection. The documents filed along with application are necessary for just and proper adjudication of the aforesaid appeals, therefore, IA-8 filed by the opposite party no.1 and 3 is allowed and the documents are taken on record.
36. The complainant/appellant in Appeal No.1216/2013 has filed application dated 16.03.2026 Under Order 41 Rule 27 of CPC along with affidavit of Arvind Mishra and documents (X-1 to X-14) to be taken on record. The description of documents is given below:
1) Copy of Pre-Anesthetic check-up of Late Hemkumari Mishra dated 03.01.2007 (X-1).
2) Copy of Requisition Form of Jawaharlal Nehru Cancer Hospital & Research Centre, Bhopal of the patient Late Hemkumari Mishra dated 14.09.1998. (X-2)
3) Copy of test report dated 17.09.1998 (X-3)
4) Copy of test report dated 18.09.1998 (X-4) -29-
5) Copy of email sent by Dr. T. P. Sahoo to Dr. Kumar Prabhash and the reply sent by Dr. Kumar Prabhash dated 12.09.2009 (X-5)
6) Copy of letter dated 23.10.2013 issued by Superintendent of Police, Bhopal (X-6)
7) Copy of letter dated 09.10.2015 issued by Medical Council of India (X-7)
8) Copy of letter dated 20.03.2017 issued by Medical Council of India (X-8)
9) Copy of Minutes of Meeting of M. P. Medical Council (X-9) (X-9)
10) Copy of letter dated 09.03.2018 issued by Superintendent of Police, Bhopal (X-10)
11) Copy of letter issued by Orissa Council of Medical Registration dated 07.08.2018 (X-11)
12) Copy of letter issued by Orissa Council of Medical Registration dated 18.08.2018 (X-12)
13) Copy of Miscellaneous Petition No 3269/2020 (X-13)
14) Copy of order passed by learned Judicial Magistrate First Class Bhopal in RCT No.4788/2014 dated 24.07.2024. (X-14)
37. Counsel for opposite parties/respondents opposed the application by filing reply. The complainant/appellant (Appeal No.1216/2013) has filed this application during the course of final arguments and submitted that in view of the points raised during the arguments on behalf of respondents, these documents are being filed. The additional evidence/documents filed during the final arguments without -30- assigning any cogent reasons, just to controvert the points raised by the opposite party, cannot be taken on record. Accordingly, IA-9 is dismissed.
38. Heard learned counsel for parties on IA-2 and IA-3, applications Under Order 41 Rule 27 of CPC filed by opposite party no.2-Dr. T. P. Sahoo (appellant in First Appeal No.1617/2013) for filing documents on record. Along with IA-2, copy of Indian Medical Register and copy of decision of M. P. Medical Council has been filed. Along with IA-3, Copy of order passed by Board of Governors in Supersession of Medical Council of India, New Delhi on 03.03.2020, copy of certificate of Medical Council of India, New Delhi and copy of RTI information dated 28.11.2008 has been filed.
39. The respondents i.e. complainant and the opposite party no.1, 3, 4 and 5 have not filed any reply and expressed no objection for taking the aforesaid documents on record as also not challenged the genuineness of these documents The aforesaid documents are relevant and essential for just and proper adjudication of the case. Accordingly, the applications IA-2 and IA-3 are allowed and the documents are taken on record.
40. Heard the parties on merits and perused the record. -31-
41. The points for consideration to decide the aforesaid appeals are as below:
1) Whether Dr.T.P.Sahoo was legally qualified and competent enough for treatment of Late Hemkumari Mishra (deceased-patient)?
2) Whether Dr. T. P. Sahoo was negligent in treating Late Hemkumari Mishra?
3) Whether Rajeev Tripathi, was negligent as well as not competent for conducting CT scan of Late Hemkumari Mishra?
4) Whether death of Hemkumari Mishra was the result of medical negligence and deficiency in service on the parts of Dr.T.P.Sahoo, Rajeev Tripathi and the Jawaharlal Nehru Cancer Hospital, Bhopal?
Point No. -1Whether Dr. T. P. Sahoo was legally qualified and competent one during treatment of Late Hemkumari Mishra.
42. It is not in dispute that Late Hemkumari Mishra, was suffering from Cancer (Breast) since 1998. It has not been challenged by the complainant that Dr.T.P.Sahoo is having the degrees of MBBS, MD (General Medicine) and DM (Medical Oncology). The complainant has not challenged that Dr.T.P.sahoo did his MBBS from Utkal University in 1997 and got himself registered with the -32- Orissa Council Of Medical Registration at S.No.13044 dated 18.10.1997 as mentioned in the affidavit filed by Dr. Sahoo. In his affidavit Dr.Sahoo has specifically mentioned that he passed the degree of doctor of medicine in general medicine in May 2001 from Utkal University then he took DM degree in Medical Oncology from Rajiv Gandhi University of Health, Karnataka. No specific denial of these facts has been made by the complainant by filing counter affidavitandtherefore,it is proved that Dr. Sahoo possessed necessary special qualifications along with knowledge and ability for the treatment of cancer while treating Smt. Hemkumari.
43. As per argument on behalf of complainants since Dr.T.P.Sahoo was not registered with the M. P. Medical Council so also with the Medical Council of India when he was treating Late Hemkumari Mishra, therefore, he was not legally competent for her treatment. To decide aforesaid question, therelevant provisions of The Indian Medical Council Act, 1956 (102 of 1956) as well as the M. P. Medical Council Act are relevant.
44. Section 21of The Indian Medical Council Act, 1956 (102 of 1956) reads as below:
21. The Indian Medical Register:- (1) The Council shall cause to be maintained in the prescribed manner a register of medical practitioners to be known as the Indian Medical Register, which shall contain the names of all persons who are for -33- the time being enrolled on any State Medical Register and who possess any of the recognized medical qualifications.
(2) It shall be the duty of the Registrar of the Council to keep the Indian Medical Register in accordance with the provisions of this Act and of any orders made by the Council, and from time to time to revise the register and publish it in the Gazette of India and in such other manner as may be prescribed.
(3) Such register shall be deemed to be a public document within the meaning of the Indian Evidence Act, 1872 (1 of 1872) and may be proved by a copy published in the Gazette of India.
The bare reading of aforesaid it is apparent that the Indian Medical Council (IMC) is responsible for maintaining Indian Medical Register. The register contained the names of all practitioners enrolled in State Medical Register. The IMC is also required to maintain a central, up-to-date registry of all practitioners enrolled on State Medical Registers who had recognized medical qualifications. This register is considered as a public document under the provisions of the Indian Evidence Act. Section 23 of the Indian Medical Council Act speaks the State intimation. All State Medical Councils are required to intimate the National Council as soon as a medical practitioner is registered.
45. In view of the above provision since Dr. T. P. Sahoo was registered with Orissa Medical Council Register at S.No.13044 dated 18.10.1997 and thereby his name is deemed to be enrolled in Indian Medical Register as per above provisions of the Indian Medical Council Act, 1956.
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46. Here it is also relevant to quote Section 15 of The Indian Medical Council Act, 1956 which reads thus:
15. Right of persons possessing qualifications in the Schedules to be enrolled-
-(1) Subject to the other provisions contained in this Act, the medical qualifications included in the Schedules shall be sufficient qualification for enrolment on any State Medical Register.
(2) Save as provided in section 25, no person other than a medical Practitioner enrolled on a State Medical Register--
(a) Shall hold office as physician or surgeon or any other office (by whatever designation called) in Government or in any institution maintained by a local or other authority;
(b) Shall practise medicine in any State;
(c) shall be entitled to sign or authenticate a medical or fitness certificate or any other certificate required by any law to be signed or authenticated by a duly qualified medical practitioner;
(d) shall be entitled to give evidence at any inquest or in any court of law as an expert under Section 45 of the Indian Evidence Act, 1872 (1 of 1872) on any matter relating to medicine.
(3) Any person who acts in contravention of any provision of sub-section (2) shall be punished with imprisonment for a term which may extent to one year, or with fine which may extend to one thousand rupees, or with both.
47. Section 27 of The Indian Medical Council Act, 1956 reads thus:
27. Privileges of persons who are enrolled on the Indian Medical Register--
Subject to the conditions and restrictions laid down in this Act regarding medical practice by persons possessing certain recognized medical qualifications, every person whose name is for the time being borne on the Indian -35- Medical Register shall be entitled according to his qualifications to practice as a medical practitioner in any part of India and to recover in due course of law in respect of such practice any expenses, charges in respect of medicaments or other appliances, or any fees to which he may be entitled.
In view of the provision of Section 27 of The Indian Medical Council Act, 1956, it is proved that the name of Dr. T. P. possessed recognized degree in Medical Oncology is entitled to practice as a medical practitioner in any part of India and also entitled to enjoy the privileges of provisions of Section 27 of The Indian Medical Council Act, 1956.
48. Learned counsel for the complainant argued that at the relevant period of time Dr. T. P. Sahoo was not registered withthe Madhya Pradesh Medical Council, therefore, he was not legally competent to practice and give medical treatment to Mrs. Hemkumari in the light of provision of Section 221 of the Madhya Pradesh Ayurvigyan Parishad Adhiniyam. However, this argument is not acceptable in the light of Section 30 of Madhya Pradesh Ayurvigyan Parishad Adhiniyam, 1987 which provides that:
"The provisions of this Act are in addition and not in derogation of the provisions of The Indian Medical Council Act, 1956 (No. 102 of 1956), containing general provisions applicable to all medical practitioners."-36-
Thus, it is clear that provisions of Madhya Pradesh Ayurvigyan Parishad Adhiniyam, 1987 are not in derogation of the provisions of The Indian Medical Council Act, 1956 which clearly provides that "Every person whose name is for the time being borne on the Indian Medical Register shall be entitled according to his qualifications to practice as a medical practitioner in any part of India and to recover in due course of law in respect of such practice any expenses, charges in respect of medicaments or other appliances, or any fees to which he may be entitled". Consequently, mere on the basis of provisions of Madhya Pradesh Ayurvigyan Parishad Adhiniyam, 1987, Dr. T. P. Sahoo cannot be denied to enjoy the privileges of provisions of The Indian Medical Council Act, 1956.
49. At this juncture the Reply dated 26.11.2018 of the Medical Council of India to RTI application filed by Dr. T. P. Sahoo is also relevant in which various questioned were answered. The questions and their respective answers are as below:
Q. 'Who is Medical Specialist?' Ans. "As per Clause 7.20 of Indian Medical Council (Professional conduct, Etiquette and Ethics) Regulations, 2002- 'A physician shall not claim to be specialist unless he has a special qualification in that branch'. -37-
Since in this case Dr.T.P.Sahoo possessed recognized qualifications such as DM (Medical Oncology) for treatment of Cancer, therefore, he comes under the category of Specialist according to the MCI.
Q2. "As per Indian Medical Council Act, 1956, is there a penalty/punishment for non-registration of the additional qualification?"
Ans. 'NO'.
Thus it is clear that as per The Indian Medical Council Act, 1956 there is no penalty/punishment for non-registration of the additional qualification.
50. The provision of Section 24 of the Madhya Pradesh Ayurvigyan Parishad Adhiniyam 1987 is also relevant while dealing this issue which provides that:
24. Penalty If any person whose name is enrolled on the State Medical Register practices as a registered medical practitioner, he shall be punishable with rigorous imprisonment for a term which may extend two three years and with fine which may extend to Five Thousand Rupees;
Provided that-
(i) The person possessing bachelor in Ayurvedic with Modern Medicine and Surgery Degree and registered with the Madhya Pradesh Board of Ayurvedic and Unani Systems of Medicine and Naturopathy shall not be punishable under this section for prescribing allopathic medicines or practicing surgery if his registration certificate authorizes him to do so;
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(ii) The medical practitioner entitled to privileges of Section 27 of The Indian Medical Council Act, 1956 (No.102 of 1956) shall not be punishable under this section for his non-registration in Madhya Pradesh.
Since Dr. T. P. Sahoo is having privilege of Section 27 of the Indian Medical Council Act, therefore, he is not liable for any punishment or penalty for his non- registration of special qualifications at the relevant period of time.
51. In view of the above discussion it is proved that Dr. T.P. Sahoo was legally qualified and competent enough for treatment of Late Hemkumari Mishra (deceased- patient), therefore, unfair trade practice or misconduct on the part of Dr. T. P.Sahoo in respect to his qualifications and competence is not found to be proved. Consequently, the Jawaharlal Nehru Cancer Hospital (JNCH) is also not found to be deficient in service for hiring the services of Dr. T. P. Sahoo for treatment of cancer patients including Late Hemkumari Mishra.
Point No.2-Whether Dr. T. P. Sahoo was negligent in treating Late Hemkumari Mishra?
52. On this issue, learned counsel for the complainant vehemently argued that Dr. T. P. Sahoo was negligent while treating Mrs. Hemkumari Mishra because Dr. T. P. Sahoo failed to get tests/investigations done for confirmation of Tuberculosis and without having any definite evidence of Tuberculosis he referred Mrs. Mishra to Bhopal Memorial Hospital & -39- Research Centre, Bhopal (BMHRC) which treats tuberculosis (T.B.) patients.
53. In view of the above argument while examining the cytology report dated 22.05.2006 (page 117 of record of the District Commission) it is found that this report indicates FNA of left supraclavicular lymph node suggestive of granulomatous lymphadenitis? Tubercular and did not reveal presence of any malignant cells, therefore, the advice given to Late Hemkumari Mishra to undergo other investigations and referring her to concerned specialty i.e. Bhopal Memorial Hospital & Research Centre (BMHRC) who treats Tuberculosis (T.B.) patients and provides comprehensive care for T.B. patients, including diagnosis does not come within the purview of medical negligence because admittedly Jawaharlal Nehru Cancer Hospital & Research Centre (JNCH) and Dr. T. P. Sahoo do not treat Tuberculosis patients and Jawaharlal Nehru Cancer Hospital and Research Centre (JNCH) is a dedicated cancer unit. The record indicates that the patient was referred to medicine specialist of the hospital Dr. Pradeep Kolekar, who is a qualified medicine specialist who advised further investigations and then the patient was referred to Bhopal Memorial Hospital & Research Centre (BMHRC). Therefore the referral of Late -40- Hemkumari Mishra to the hospital which treats T.B. patients shows alertness of hospital and the doctors to turn down the suspicion of TB in the interest and better treatment of Late Hemkumari Mishra and it does not proves negligence on the part of the doctor or the hospital.
54. The complainant utterly failed to adduce any evidence or documents in respect of treatment of Tuberculosis of Late Hemkumari Mishra after referring her to BMHRC. The complainant even not filed any observation, test reports of the BMHRC. Thus the allegations that the deceased-patient Late Hemkumari Mishra had Caner but not Tuberculosis in the year 2006 does not found to be supported by medical/clinical and scientific evidence. At this point, argument on behalf of Dr. T. P. Sahoo is found having weight that if it is presumed that in May-2006 Late Hemkumari Mishra had Cancer in lymph node supraclavicular, then in 6 months without having received any treatment for cancer there would have been enlargement of the lymph node which would have been clinically palpable and on account of the fact that the complainant has failed to file scientific or clinical/medical evidence for recurrence of Cancer, it cannot be concluded that Late Hemkumari Mishra was suffering from relapse of Cancer during the period from May-2006 to December-2006.
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55. The documents on record indicates that Late Hemkumari Mishra at the time of her last admission was suffering from dyspnea which was due to Lymphangitis Carcinomatosis, which is a severe form of infiltration of the lungs by cancer as is evident from the CT Scan report dated 01.10.2018. The documents filed on record shows that Late Hemkumari Mishra had failed Anthracycline treatment and was also taxane refractory. The Journal of Clinical Oncology Volume 25 Number 33 (November-2007) (Page 316 of record of District Commission)provides that"Progressing after Anthracycline and Taxane Treatment Capecitabine was the standard care of treatment for breast cancer."Further in NCCN Practice Guidelines in Oncology (page 303 of record of District Commission) under the heading Invasive Breast Cancer provides that "
Capecitabine" was the standard care of treatment for breast cancer. Further under the heading of Breast Cancer sub-heading Systemic disease, provides that "The systemic treatment of breast cancer recurrence or stage IV disease prolongs survival and enhance quality of life but not curative." As per Drug Information of Capecitabine(at page 299 of record of the District Commission) "Capecitabine is also approved to treat metastatic breast cancer in patients whose disease has not gotten -42- better during treatment with other drugs." Thus it is proved that the Capecitabine was the standard drug for care of breast cancer patient and providing this drug to Mrs. Mishra does not come within the purview of negligence. It is pertinent to mention here that as per the case summary of Mrs. Hemkumari Mishra (at page
248) the consent in respect to chemo therapy by using capsule capecitabine was given and, therefore, the argument of the complainant that Dr.Sahoo was negligent by prescribing this medicine is seems to be afterthought.
56. Learned counsel for the complainant vehemently argued that Late Hemkumari Mishra was given an experimental drug and some kind of trial medicines, however, the complainant has failed to file any scientific or Clinical evidence in this regard. On the other hand as discussed above Capecitabine was the drug of choice at the relevant point of time for cancer patients when it was prescribed to Mrs. Mishra.
57. Learned counsel for the complainant argued that Late Hemkumari Mishra was administered Capecitabine even after vomiting by her, however, as per her treatment paper Annexure C-13 the drug Capecitabine was being administered to her twice a day and the next dose was scheduled after 12 hours of the first dose i.e. at around 8 to 9pm, -43- therefore, it is not proved that Capecitabine was administered after Late Hemkumari Mishra vomited at noon.
58. Learned counsel for the complainant further argued that even after Late Hemkumari Mishra vomited, anti-emetic treatment was not given to her. However, the treatment sheet at page 74 of record of District Commission and the case history (case sheet at page 248 of record of District Commission) indicate that anti-emetic treatment was started on 02.10.2008 onwards to stop vomiting.
59. Learned counsel for the complainant further argued that Late Hemkumari Mishra was given overdose of morphine, however, as per medical literature submitted by Dr. T. P. Sahoo "Evidence Based Series Section 1, The Management of Dyspnea in Cancer Patients A Clinical Practical Guideline"
(page 415 to 418 of record of the District Commission) Morphine is a drug of choice for patients suffering from dyspnea due to advanced cancer and the prescribed dose for Morphine is 2.5 to 10 mg every four hours. In the same medical literature (at page 417 of record of the District Commission) under the heading conclusions, it is provided that "The existing evidence from controlled trials supports the use of systemic opioids, particularly morphine or dihydrocodeine for treating -44- dyspnea." In Practice Guidelines in Oncology under the topic Palliative Care (at page 418 of record of the District Commission) doses of Morphine are given as "Oploids for cough or dyspnea (if opioid navive, morphine 2.5-10mg PO every 4 hr)." The case sheet of Late Hemkumari Mishra indicates that dose of Morphine 10 mg was prescribed every 4 to 6 hours to Late Hemkumari Mishra. Consequently, the argument of learned counsel for the complainant is not acceptable that Late Hemkumari Mishra was given overdose of Morphine.
60. Further, learned counsel for the complainant vehemently argued that Dr. T. P. Sahoo wrongly instructed for CT Scan of Late Hemkumari Mishra, however, the treatment papers (CT Scan report) dated 01.10.2010 showed lung metastasis and in such cases probabilities of occurrence of brain metastasis are more as per medical literature submitted by Dr. T. P. Sahoo (at page 412-413 of record of the District Commission) under the heading Brain Metastases from breast cancer:
Management Approach, it is mentioned that "Breast cancer is the second most common cause of brain metastases (after lung cancer) occurring in 10-15% of patients of breast cancer, although autopsy studies suggest that actual incidence is twice this figure." Further in medical literature (at page -45- 413 of record of the District Commission), it is mentioned that nausea-vomiting can also be the presenting symptoms." Thus, to rule out brain metastases, to advise CT Scan is not against the medical procedure. Therefore, the argument of Dr. T. P. Sahoo is acceptable that since nausea and vomiting are symptoms of brain metastases (as per medical literature) and since Late Hemkumari Mishra was suffering from nausea and vomiting, therefore, he suggested CT Scan to rule the possibility of brain metastases in the best interest of Late Hemkumari Mishra.
61. Learned counsel for the complainant vehemently argued that no consent was taken by Dr. T. P. Sahoo for CT Scan of Late Hemkumari Mishra which indicates deficiency in service on part of Dr. T. P. Sahoo. However, this argument is not acceptable because CT Scan is a technique for examining and finding information in respect to any body part of the patient. Unless right information is obtained by conducting these techniques appropriate treatment cannot be given. Therefore, Dr. T. P. Sahoo has not erred in giving instructions for CT Scan of Late Hemkumari Mishra more particularly in order to diagnose Brain Metastases looking to the symptoms of vomiting. Even otherwise as per the case of the complainant, he was with the patient at the time of CT Scan, there is -46- nothing on record to show that he resisted or objected to injection being given before CT Scan as also for getting the CT Scan done. Also the record revealed that the deceased/patient before going to CT Scan went to urinal herself, therefore, it cannot be said that she was unconscious before putting her under CT Scan machine and therefore, could not resist for the test. Therefore, learned District Commission has rightly observed that the argument of the appellant/complainant regarding death of Mrs. Mishra due to C.T. Scan test on her is an afterthought and has been taken after death of Late Hemkumari Mishra without any supportive evidence i.e. post mortem report.
62. The documents in record indicates that Late Hemkumari Mishra was diagnosed Cancer (Breast) in the year 1998 and she was survived for 10 years after being diagnosed as Cancer and as discussed above the complainant has failed to file any medical/clinical or scientific evidence that treatment for Cancer given by Dr. T. P. Sahoo was not correct in these 10 years.At this juncture the report of Madhya Pradesh Medical Council, which constituted an Ethics cum Disciplinary Committee in respect to the complaint made against doctors (Page 243 of record of the District Commission) is also relevant. This Committee held a meeting on -47- 09.04.2010 and gave its finding that there is no professional medical negligence of Dr. T. P. Sahoo. The Ethics cum Disciplinary Committee constituted by the Medical Council of Madhya Pradesh in its meeting dated 27.06.2013 concluded that "Taking into consideration the expert reports submitted by various expert doctors on the subject, the committee unanimously concluded that the accused doctors are not guilty of any medical negligence and therefore decided to close the case."
63. Record further indicates that the said order of the Madhya Pradesh Medical Council was challenged by M. L. Mishra, the husband of Late Hemkumari Mishra and the complainant no.1 (now his name is deleted as he died during pendency of appeal) before the Department of Public Health and Family Welfare, Government of M.P. and thereafter the M. P. Medical Council vide order dated 22.11.2018 suspended the registration/medical certificate of Dr. T. P. Sahoo for a period of three months from 26.11.2018 to 25.02.2019. This was challenged by Dr. T. P. Sahoo in Medical Council of India which overturned the decision of Madhya Pradesh Medical Council and opined that there was no medical negligence and Clause 7.20 of Professional Conduct, Etiquette and Ethics Regulation 2002 was not violated. Even it was further observed that the observation of -48- Ethics Committee has been accorded approval by the Board of Governors in its meeting held on 19.02.2020, which is the highest body of the Medical Council of India. In the light of above discussion any negligence on the part of Dr. Sahoo in respect to treatment of cancer of Mrs. Mishra is not found to be proved.
Point No.3:Whether Rajeev Tripathi, Radiographer was negligent and was not competent for conducting CTScan of Late Hemkumari Mishra ?
64. Learned counsel for the complainant argued that Rajeev Tripathi, Radiographer was not having required qualifications and was not competent for conducting CT Scan of Late Hemkumari Mishra as he was not enrolled with the Paramedical Council of Madhya Pradesh. As per the grounds taken in appeal filed by Rajeev Tripathi he has required qualifications and experience of X-Ray technician and radiologist and on the basis of his qualifications and experience he was appointed as X-Ray Technician (Present Post-Radiographer) in Jawaharlal Nehru Cancer Hospital on 30.08.2000. It is further submitted by Rajeev Tripathi that at the time of his appointment in the hospital, no Paramedical Council of Madhya Pradesh was in existence in Madhya Pradesh, therefore, the question of registration with Paramedical Council of Madhya Pradesh does not arise. -49- The complainant has not challenged appointment of Rajeev Tripathi in the Jawaharlal Nehru Cancer Hospital (JNCH) on 30.08.2000 and since the Paramedical Council of Madhya Pradesh came into existence in the year 2003, therefore, the question of not enrolling with the Paramedical Council of Madhya Pradesh at the time of his appointment does not arise.
65. Learned counsel for the complainant further argued that at the time of CT Scan concerned Radiologist was not inside the room which proves that the hospital was negligent. However, learned counsel for complainant has failed to provide any rules/regulations to prove that for conducting CT Scan the Radiologist must be inside the room. In this regard, the hospital has placed its argument that the Radiologist was present at the time of CT Scan in the side monitor room and the technician was also present inside the room while putting the patient under the C.T. Scan machine. Learned counsel appearing on behalf of the hospital further explained that in general practice, the technician and the Radiologist after inserting the patient in CT Scan machine observe the process in the monitor fixed in nearby room and on the basis of observations the findings are given and reports are prepared. This argument of learned counsel for the hospital is having weight in the light of the fact that CT Scanners use -50- radiation and the staff may be exposed to the radiation scattered in the room during the process ,therefore, they remain outside of the room during the process.
66. Perusal of record indicates that post-mortem of Late Hemkumari Mishra was not conducted, therefore it is not proved that she died on account of conducting CT scan on her. As per case sheet (page 249 of record of the District Commission) after CT Scan, at 4:30 the patient was shifted to ICU due to unconsciousness, therefore, it cannot be said that she died while she was still in CT Scan machine. As per documents on record, Late Hemkumari Mishra died on account of heart attack and there is no scientific evidence that she suffered heart attack on account of putting her in CT Scan machine or conducting C.T. scan. Therefore, the argument of learned counsel for the complainant is not acceptable that Late Hemkumari Mishra died on account of negligence of Radiographer Rajiv Tripathi. So also there is no nexus between the death of Mrs. Mishra with non-enrollment of Rajiv Tripathi with Paramedical Council of Madhya Pradesh. The learned counsel for the complainant has also argued that the opposite parties have placed contradictory facts in respect to presence of Dr. Shrimali (the Radiologist) at the time of C.T. Scan which proves negligence -51- on the part of the hospital. However, this argument is not acceptable because in C.T. Scan report the signature of one radiologist/expert Dr. Sandeep Bansal is present which proves the presence of the radiologist while conducting the C.T. Scan. Even otherwise presence or absence of Dr. Shrimali has no nexus with the cause of death as it is not proved that Late Hemkumari Mishra died in CT Scan machine on account of the test conducted on her.
67. In view of the aforesaid discussion it is apparent that the complainant has failed to prove negligence on part of Dr.T.P.Sahoo, Jawaharlal Nehru Cancer Hospital (JNCH) and Rajeev Tripathi, Radiographer while treating Late Hemkumari Mishra. The cause of death of Late Hemkumari Mishra is cardiac arrest and there is no scientific/clinical evidence adduced by the complainant to prove that on account of putting her in CT Scan machine, for referring her diagnosis and treatment of Tuberculosis to Bhopal Memorial Hospital& Research Centre (BMHRC), giving Capecitabine dose even she vomited, not giving anti-emetic treatment to stop vomiting, giving overdose of Morphine caused to her death and for which Dr. T. P.Sahoo, Jawaharlal Nehru Cancer Hospital and Radiographer Rajeev Tripathi are responsible.
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68. It is well settled that in cases of medical negligence necessary pleadings and particulars are required to be proved by the complainant. Mere averment in the complaint does not come within the purview of evidence, the medical negligence is to be proved by cogent evidence.
69. Hon'ble Supreme Court in Jacob Mathew Vs State of Punjab &Anr III (2005) CPJ 9 (SC) has held that true test for establishing medical negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of, if acting with ordinary care. The accident during the course of medical or surgical treatment has a wider meaning. Ordinarily an accident means an unintended and unforeseen injurious occurrence, something that does not occur in the usual course of events or that could not be reasonably anticipated.
70. Hon'ble Supreme Court in Martin F D'Souza Vs Mohd. Ishfaq I (2009) CPJ 32 (SC) has held that simply because the patient has not favorably responded to a treatment given by the doctor or a surgery has failed, the doctor cannot be held straightway liable for medical negligence by applying the doctrine of Res Ipsa Loquitur. It is further observed that -53- therein that sometimes despite best efforts the treatment of a doctor fails and the same does not mean that the doctor or the surgeon must be held guilty of medical negligence unless there is some strong evidence to suggest that the doctor is negligent.
71. Hon'ble Supreme Court in Harish Kumar Khurana (Dr.) Vs Joginder Singh &Ors. II (2022) CPJ 43 (SC) has held that 'To indicate negligence there should be material available on record or else appropriate medical evidence should be tendered. The negligence alleged should be so glaring, in which event the principle of Res ipsa loquitur could be made applicable and not based on perception.
72. In the case in hand, apart from the allegations made by the complainant in the complaint and affidavit filed, there is no other medical evidence tendered by the complainant to indicate negligence on part of the Doctor, Hospital and its staff. Even otherwise from the medical literature it is very well established that the opposite parties doctors treated the patient as per medical standard of care. The complainant failed to produce any evidence or any medical expert report to establish that on account of negligence of the doctors, hospital and technician, Late Hemkumari Mishra -54- died. More particularly, when Late Hemkumari Mishra was suffering from Diabetes Mellitus and IVth stage of Breast Cancer Metastatis and she survived for a period of 10 years from the diagnosis of cancer. Therefore, the negligence on part of opposite parties is not proved.
73. In view of the above discussion we find that the opposite party no.1 to 4 have not committed any negligence or deficiency in service in treating/operating the patient Late Hemkumari Mishra.Learned District Commission failed to hold that the death of Late Hemkumari Mishra was a result of negligence of opposite parties particularly when the complainant has failed to file any cogent evidence to prove that Late Hemkumari Mishra died on account of negligence of opposite parties no.1 to 4 and erroneously allowed the complaint.
74. Thus the impugned order cannot be sustained and is hereby set-aside. Consequently, the complaint is dismissed.
75. As a result, the First Appeal No. 1216/2013 filed by the complainant is dismissed and the First Appeal Nos. 1278, 1350 & 1617 of 2013 filed by opposite party no.1-Jawaharlal Nehru Cancer Hospital, -55- Bhopal, Rajeev Tripathi and Dr. T. P. Sahoo respectively are allowed. No order as to costs.
76. This order be retained in First Appeal No.1216/2013 and a copy be placed in First Appeal Nos. 1278, 1350 and 1617 of 2013.
(Justice SunitaYadav) (Dr. Monika Malik)
President Member
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SUNITA YADAV
PRESIDENT
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DR. MONIKA MALIK
MEMBER