National Consumer Disputes Redressal
Rajiv Gandhi Cancer Institute & Ors. vs Lt. Col (Reted.) Zile Singh Dahiya on 24 April, 2014
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 251 of 2008 (Against the order dated 17.4.2008 in Complaint Case No.C-108/2001 of the State Commission, Delhi) 1. Rajiv Gandhi Cancer Institute And Research Centre Sector-V, Rohini, New Delhi Through its Medial Superintendent Dr. Sunil Kr. Khetarpal 2. Dr. Y.P. Bhatia (former) C.E.O., Rajiv Gandhi Cancer Institute and Research Centre Sector-V, Rohini, New Delhi 3. Dr. K.K. Pandey (former) Consultant Surgical Oncology Rajiv Gandhi Cancer Institute And Research Centre Sector-V, Rohini, New Delhi .....Appellants Versus Lt. Col(Reted.) Zile Singh Dahiya S/o Shri Devi Singh R/O 213/22, Vikas Nagar, Rohtak 124001 Haryana ........Respondent BEFORE HONBLE MR. JUSTICE D. K. JAIN, PRESIDENT HONBLE MRS. VINEETA RAI, MEMBER HONBLE MR. VINAY KUMAR, MEMBER For the Appellants : Ms. Karuna Nundy, Advocate Ms. Mansi Bajaj, Advocate Dr. R. Sekhon For the Respondent : Dr. Sushil Kr. Gupta, Amicus curiae with the respondent in person. PRONOUNCED ON: 24/4/2014 ORDER
PER MR. VINAY KUMAR, MEMBER The Rajiv Gandhi Cancer Institute & Research Centre (for short, the Cancer Institute) has filed this appeal challenging the award of Delhi State Consumer Disputes Redressal Commission in complaint Case No.C-108/2001.
The State Commission has allowed the complaint and awarded a lump sum compensation of Rs.5 lakhs in favour of the Complainant.
2. The matter relates to the treatment of Mrs. Krishna Kumari, wife of the complainant, for cancer of the cervix. The disease was diagnosed in August 1999 and the patient succumbed to it in February, 2001. The complaint petition filed on 20.4.2001, traverses the events and developments between the surgery at OP-1 on 22.10.1999 and the patents death on 6.2.2001.The case of the complainant was that his wife underwent radiation therapy at PGI MS Rohtak during August-September 1999. It was followed by RADICAL HYSTERECTOMY at OP-1/ Cancer Institute on 22.10.1999. As per the complaint petition, OP-3 decided to rush through this without proper tests. Also, there was negligence and deficiency in the manner this operation was performed, as a result of which metastasis developed within a period of ten months. Allegedly, the intervening short period of less than a year, indicated that the cancer would not have resurfaced, if the surgery had been done meticulously and carefully.
3. It is further alleged that, the FNAC (Fine Needle Aspiration Cytology) report of 16.10.2000 indicated growth of the secondaries of cancer but Dr. A.K. Chaturvedi (who conducted the test) and Dr. K.K. Pandey categorically declined to accept the presence of malignancy. Later, when the concerned slides were got reviewed at Indraprashta Apollo Hospital, New Delhi on 04.12.2000, Squamous Cell Carcinoma was confirmed. Similarly, the bone scanning report prepared at OP-1 clearly gave the findings of metastasis. This too was rejected by Dr. K.K. Pandey. When the same reports were sent to Dr. S.H. Advani of Tata Memorial Hospital, Mumbai, he confirmed metastasis of cancer.
4. Per contra, the OPs had contended that on 16.10.2000 a CT guided FNAC was done at OP-1. The report was inconclusive and found only necrotic material. OP-3 also advised the patient to undergo Kidney Function Test, Liver Function Test, Bones Scan Whole Body, Colour Doppler Test and CT Scan of Whole Abdomen. As per the written submission of OPs before the State Commission, no secondaries had developed till 16.10.2000. However, the patient was again brought on 30.10.2000.
Scintigraphy of the whole body was done, which was suggestive of bone metastasis involving left SI joint. Allegedly, it was only suggestive, not confirmatory, as other reports seen at OP-1 were negative. The deceased was therefore advised to continue with the drugs which she was taking for relief from backache. After 30.10.2000, the patient did not report to the Cancer Institute till 14.12.2000.
5. On the allegation that when the slides of FNAC done at OP-1 on 16.10.2000 were later reviewed at Indraprashtra Apollo Hospital, cancer was confirmed, the Written Submission states that:-
On 14-12-2000, the opposite party no.3 was informed that two slides tested on the deceased has been reported as positive. The opposite party no.3 advised another opinion on the slide from the outside and if found positive, the deceased was advised to go for Chemotherapy. Thus the allegations of the Complainant that the Opposite Party refused to give any treatment, is false, frivolous and baseless.
6. On consideration of the pleadings and evidence of the two sides, the State Commission arrived at the following findings:-
(I) After the radio therapy treatment the deceased was totally cured. OP/hospital was approached for second opinion. But, the OP/hospital without any test or investigation, except CT Scan, conducted Radical Hysterectomy operation, which was not required at all.
(II) The Radical Hysterectomy operation was not carried out properly. This caused metastasis later on.
(III) Even when the FNAC test showed positive for malignancy and Bones Scan showed metastasis the patient was not provided the required treatment for cancer cure.
(IV) The above lapses resulting in the death of the patient amount to medical negligence.
7. In the appeal before us, the Cancer Institute has been represented by Ms. Karuna Nundy and Ms. Mansi Bajaj, Advocates. Respondent/Complainant has personally conducted his own case.
However, during the course of arguments, the Complainant made an oral request for assistance of a counsel.
Therefore, Dr. Sushil Kumar Gupta, Advocate (also a qualified doctor) was appointed as Amicus Curiae. Both sides have been heard at considerable length and the records carefully perused.
8. The principal grounds of challenge to the impugned order are against the findings reached by the State Commission in para 13 thereof. As per the appeal memorandum, no evidence or opinion of any medical expert was led before the State Commission in support of the finding that the surgery was not properly performed and that it later caused metastasis. It is further contended that there is no evidence to show that proper treatment was not provided. On the contrary evidence on record, shows that the patient did not report for the three monthly follow up as advised at the time of her discharge. The case of the appellant is that the allegations of medical negligence have to be proved. Negligence cannot be assumed.
9. On the question whether Radical Hysterectomy was required or not, learned counsel for the appellants/OPs referred to the reports on record which showed that the treating physician at PGI Rohtak had diagnosed a growth of 3 cm x 2cm which, in biopsy was confirmed as moderately differentiated carcinoma. After radiation therapy from 16.8.1999 to 2.10.1999, the same doctor had found palpable growth, on examination per speculum, of 1cm x 1cm. This indicated that the tumour was Radio resistant and not fit for further radio therapy. Considering the gap of over five weeks since completion of radio therapy, the OPs decided to perform radical hysterectomy on the patient without any further delay.
10. We find that the State Commission has referred to the CT scan and histo-pathological reports, which noted that no tumour tissue was seen and there was no residual evidence of malignancy. Evidently, this refers to post- hysterectomy report of 25.10.1999. This being subsequent to the date of surgery, cannot be the basis for the conclusion reached by the State Commission that need for Radical Hysterectomy itself was not there. In this behalf, learned counsel for the appellant drew our attention to the report of 5th October from PGIMS Rohtak.
It refers to completion of radio therapy on 10.9.1999 and notes that the patient was fit for surgery six weeks after completion of radio therapy. It also contains an advice to the patient to report in for it on 29.10.1999. Learned counsel argued that it was in this background that the patient was admitted to the Cancer Institute on 21.10.1999, as a case of post-RT carcinoma. In our view this also needs to be seen together with the findings, both at PGI Rohtak and the Cancer Institute, which refer to a radio resistant growth of 1cm x 1cm, five weeks after the Radio therapy. In this background, we find no substance in the bland assertion in the complaint before the State Commission that a number of experts have opined that a minimum period of three months after radiation should have been given before hysterectomy. We therefore, are of the view that the finding of the State Commission that the Radical Hysterectomy itself was not required, is contrary to the record and evidence led before it, Therefore, it cannot be sustained.
11. The State Commission has also held that that Radical Hysterectomy was not done properly and it caused metastasis later. The complaint petition states that matastatic cancer diagnosed later was of the same type which was diagnosed earlier. It was therefore contended that this would show that Dr. K.K. Pandey respondent No.3 did not carry out the operation properly and left the cancerous/potentially cancerous tissues inside, which later on spread to other parts of the body. Learned Amicus Curiae also argued that had OP-3 taken care to remove all lymph nodes, metastasis would not have developed within eleven months of the surgery at OP-1.
12. Counsel for the appellant forcefully argued that this finding is not based on any specific evidence before the State Commission. She also sought permission to take assistance of Dr. (Mrs) Sekhon to explain the medical processes and concepts concerned with this finding of the State Commission. Considering that this Commission had provided the other side with the assistance of a medico-legal expert as Amicus Curiae, the request was agreed. Dr Sekhon explained that metastasis is the process by which malignant disease spreads to distant parts of the body and also to secondary tumours resulting from this process. Metastases are also known as secondaries and their spread occurs through bloodstreams, lymphatic system and across the body cavities. Lymph is the fluid which circulates in the Lymphatic Vessels of the body.
Lymph Capilliaries, called lymphatics, run throughout the body, passing through Lymphatic Glands. Swellings which occur at various points in the Lymphatic System are called Lymph Nodes. They are a part of the immunity response system of the body. They become enlarged when the area of body which they drain is the site of infection. Occasionally, they are the site of primary or metastatic malignant disease.
13. It was explained that the case of the patient, Mrs Krishna Kumari, was one of cancer of the cervix. Therefore, Radical Hysterectomy was the only right surgical option. Learned counsel for the appellant explained the import and relevance of this procedure with the help of medical literature on Radical Hysterectomy RADICAL HYSTERECTOMY.
The standard surgical treatment for stages IB and IIA cervical carcinomas is radical (type III) hysterectomy and bilateral pelvic lymph node dissection. This procedure involves en bloc removal of the uterus, cervix, and paracervical, parametrial, and paravaginal tissues to the pelvic sidewalls bilaterally, taking as much of the uterosacral ligaments as possible (see Fig. 35.2-4). The uterine vessels are ligated at their origin, and the proximal one third of the vagina and paracolpos are resected. For women younger than 40 to 45 years, the ovaries usually are not removed. If intraoperative findings suggest a need for postoperative pelvic irradiation, the ovaries may be transposed out of the pelvis. ( Annexure-3, Principles and Practice of Oncology, 5th Edition) She also referred to the following steps, detailed in the DISCHARGE SUMMARY of OP-1, which were taken in this surgery of 22.10.1999, with reference to the medical literature on Radical Hysterectomy Steps:
Rt round ligament transfixed & cut Infundibulo pelvic ligament isolated Rt ureter isolated and ligated over umbilical tape Rt ovarian vessels doubly ligated transfixed & cut.
All fat fascia and tissue from ex iliac vessels removed dissection taken superiorly upto the bifurcation of iliac vessels.
Internal iliac vessels exposed
-Obliterated umbilical vessel ligated and cut
-Obturator fossa opened up
-Obturator artery dissected out
-Obturator nerve dissected out
-All the fat fascia and tissue from obturator fossa taken out Ureter exposed upto the insertion into the bladder after ligating uterine artery crossing it Similar dissection carried out on Lt. Side the parametrium and the obtrurator fossa tissue were more adhered to underlying structures on Ltd. side Uterovesical fascia cut & bladder pushed forward.
-Both uterosacral ligated & cut Para rectal space opened up
-Paravaginal tissue transfixed
-Vagina opened up at upper 2/3rd and lower 1/3rd junction
-Uterus with vagina removed.
-Vagina sutured over a T-tube
-Para aortic lympoh node sampling done
-Retroperitonization done
-Abdomen closed in layers.
14. Further, our attention was drawn to the contents of the post-surgery HISTOPATHOLOGY AND CYTOLOGY INVESTIGATION REPORT of 25.10.1999. It is based on analysis of samples drawn on 23.10.1999 i.e. a day after the Radical Hysterectomy. This report clearly records the following findings Sections from cervix(A,B)shows acanthosis of surface squamous epithelium with areas of thinning up epithelium and mild to moderate dysplasia. No residual evidence of malignancy. Section from endometrium and myometrium shows atrophic glands. Section from both ovaries shows normal morphology. Parametrium, vaginal cut margin and all the lymphnodes are free of tumour tissues.
OPINION1. DIAGNOSED CASE OF CARCINOMA CERVIX (POST RADIOTHERAPY). MILD TO MODERATE DYSPLASIA CERVIX. ALL THE LYMPHNODES SENT SEPARATELY ARE FREE OF TUMOUR TISSUE.
2. LOW PROLIFERATION ENDOMETRIUM.
3. NORMAL MORPHOLOGY BOTH OVARIES.
(Emphasis supplied)
15. On comparison of the steps taken in the surgery, as detailed above, with medical literature on what should constitute Radical Hysterectomy and with post surgery Histopathology and Cytology report of 25.10.1999, we find that the surgery was complete. No expert evidence to the contrary was led in this behalf by the complainant before the State Commission, nor before us, to point out how exactly the surgery, performed on 22.10.1999 was found to be incomplete. The allegation of the complainant and finding of the State Commission do not refer to any medical evidence of the exact area and nature of deficiency in surgery. The fact that nearly one year later secondaries were found to have developed in another part of the patients body, is not proof in itself that Radical Hysterectomy was inadequately or negligently performed. The allegation therefore, remains, at best, an unsubstantiated assumption. More so, as the patient had chosen not to report to the OP hospital for an inordinately long period of one year, after the surgery. We therefore, hold that this finding of the State Commission also cannot be sustained.
16. It is extremely pertinent to observe here that while discharging the patient on 28.10.1999, the Cancer Institute had clearly noted in the DISCHARGE SUMMARY Patient is being discharged with advice to be on a 3 monthly follow up for this year and 6 monthly thereafter. Admittedly, in clear violation of this advice, the patient was next brought to OP-1 Hospital only on 16.10.2000 i.e. a whole year after discharge from the Cancer Institute. On a direct query by the Bench, Respondent/Complainant admitted that in the above background, failure of the patient to report to the Cancer Institute between October 1999 and October 2000 was in direct violation of the medical advice.
It is not for this Commission to assess the medical consequences of this lapse on the part of the patient. But, it is clear that the results of the tests done at the Army Hospital in September-October 2000, led to the patient being brought back to the Cancer Institute on 16.10. 2000.
17. In September-October 2000, the patient had undergone the following tests at the Army Hospital a. CT Scan of abdomen and pelvic region , on 20.9.2000;
b. Ultra sound of abdomen, on 21.9.2000 and; c. MRI Lumbosacral Spine, on 5.10.2000.
18. It is alleged in the complaint petition that as per the above reports, the cancer was resurfacing. Also, that the patient was having typical pain in left tibial bone, left sacroillac region & left lumbar area which also pointed towards matastasis. Allegedly, these were brought to the notice of OP-3 but not accepted by him as evidence of return of the cancer. On this point, the affidavit evidence of OP-1 accepts that review of CT Scan done outside revealed small retroperitoneal lymphnodes and early bilateral Hydronepherosis. But, claims that tissue planes were effaced possibly due to the radiation effect. Learned Amicus Curiae argued that this was the stage when treatment should have been commenced by the OPs. In response, counsel for the Appellants/OPs referred to medical literature on clinical gynaecologic oncology and argued that at this stage the patient would have been least responsive to chemo therapy. This argument runs counter to the fact that a little later, the treating doctors at the Cancer Institute did consider the option of chemo therapy in December 2000.
However, on this issue, OP-3, Dr K K Pandey has taken a different stand. It is stated in his affidavit of evidence that in the MRI and CT Scan no lymphadenopathy was reported in the pelvic areas, though it was mentioned in the USG report. CT Scan and MRI are far more sensitive modalities to detect lymphnodes than USG. Therefore, the OP doctors and hospital went by MRI and CT Scan which had not reported any lymph nodes in the pelvic area.
19. Lymphadenopathy is medical description of the condition of swelling of lymph glands. It may be due to spread of malignancy. In our view, the import and consequence of this stand of OP-3 need to be considered in the light of the developments of the next two months, and not in isolation. The uncontroverted fact remains that on 21.9.2000, one of the three reports mentioned above, had reported lymph nodes in the pelvic area.
20. The next test done at the Cancer Institute/OP-1 was CT guided FNAC test-Retroperitoneal Lymph Nodes, performed on 16.10.2000. Its report of the same date was as follows:-
ASPIRATION MATERIAL: Received 4 slides and 2 ml of fluid MICROSCOPIC EXAM : Both slides and fluid show necrotic material with RBC. No viable malignant cells seen.
IMPRESSION : NECROTIC MATERIAL C-1 No diagnosis (Too few cells, inadequate material).
C-2 No evidence of malignancy (Cytologically benign cells, adequate material C-3 Atypical, probably benign (Cytological features of both benign and atypical cells). Biopsy is advised.
C-4 Suspicion of malignancy (Cells almost certainly malignant but due to small number and/ or suboptimally processed cells details, caution is indicated). Biopsy is advised.
C-5 Malignant cells, definitive cytological evidence of malignancy on a representative cell sample.
21. Significantly, in this report, while recoding their IMPRESSIONS, the three signatory doctors have tick-marked C1 option which reads, No diagnosis (Too few cells, inadequate material).
Dr K K Pandey/OP-3 too says in his affidavit that the report was inconclusive and no diagnosis was possible. But, at this stage we find no explanation why the matter was allowed to rest with an inconclusive report when the USG report had already given a finding, a month earlier, about existence of retro peritoneal lymph nodes. There is no evidence of a repeat FNAC at Cancer Institute. Even in otherwise detailed affidavits of evidence filed by the OPs before the State Commission, no attempt has been made to explain why a repeat FNAC was not done. Confronted with a direct query from the Bench on this point, learned counsel for the appellants merely argued that only necrotic material was found and the FNAC report carried no evidence of malignancy. In our view, this argument needs to be rejected at the threshold itself.
22. Clinical notes of the Cancer Institute together with relevant investigation reports and evidence of parties, clearly bring out the following picture a. In the affidavit evidence of OP-1 a very categorical claim has been made viz. that The deceased had no secondaries till 16.10.2000. We have found no explanation for it. Such a claim could not have arisen before FNAC report was seen by the OPs. Nor could it be based on the report which admittedly, was inconclusive.
b. On 27.10.2000 the question of repeat FNAC was raised before Dr K K Pandey/OP-3.
He referred the matter to Dr Chaturvedi. Evidently, the matter did not reach any decision.
c. On 30.10.2000 WHOLE BODY BONE SCINTIGRAPHY was done at the Cancer Institute. Its report says, Findings are suggestive of bone metastasis involving left S.I. joint in the given clinical context. Counsel for the appellants/OPs emphasised that this report was only suggestive of metastasis and not conclusive. As per OP-3, this was discussed with Dr Chaudhry, Chief of Nuclear Medicine, who opined that it did not confirm malignancy. Thus, even after FNAC on 16.10.2000 and whole body Scintigraphy on 30.10.2000, OPs had, what they emphatically call, only suggestive and not confirmed finding of malignancy, with no decision about the next course of action.
d. However, it is also an admitted fact that two of the four slides prepared with the FNAC test of 16.10.2000 at the Cancer Institute, were got reviewed by the complainant at the Apollo Hospital. The resultant report of 4.12.2000 confirmed malignancy. The full report reads MICROSCOPIC DESCRIPTION Smears contain singly dispersed pleomorphic cells with opaque cytoplasm and deeply stained irregular nuclei alongwith ghost cells and amorphous necrotic material against.. a background of red blood cells.
COMMENT (S) *-POSITIVE FOR MALIGNANT CELLS.
* SQUAMOUS CELL CARCINOMA CONSISTENT WITH METASTASES FROM KNOWN PRIMARY IN UTERINE CERVIX.
e. This report was discussed by OP-3 with Dr Bhatia on 14.12.2000. It was decided to have another opinion on the same slide and start chemo therapy, if found positive. But there is nothing to show when such further opinion was taken and with what outcome.
f. Independently, the complainant had also consulted Dr S H Advani, Chief of Medical Oncology at Tata Memorial Hospital, Mumbai. The affidavit of OP-3/Dr Pandey itself refers to the opinion of Dr Advani about the recommended line of treatment being symptomatic and supportive only. But, what OP-3 does not mention is that the same letter of Dr Advani also called it a case of carcinoma of cervix with metastatic disease.
23. The question that eventually arises is whether the resultant failure to reach a timely and clear diagnosis, with consequent failure to commence the requisite treatment, amounted to medical negligence or deficiency of service or not. The State Commission has held it to be a case of medical negligence. Section 2(1)(g) of the Consumer Protection Act, 1986, defines deficiency as--
deficiency means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service.
24. On the subject of medical negligence Honble Supreme Court of India has laid down the law in the following landmark decisions. In Jacob Mathew Vs. State of Punjab, (2005) 6 SCC 1, The Apex Court has summed it up in eight conclusions or principles.
1. Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: duty, breach and resulting damage.
2. Negligence in the context of medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. When it comes to the failure of taking precautions what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. So also, the standard of care, while assessing the practice as adopted, is judged in the light of knowledge available at the time of the incident, and not at the date of trial.
3. A professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.
4. The test for determining medical negligence as laid down in Bolams case [1957] 1 W.L.R. 582, 586 holds good in its applicability in India.
5. The jurisprudential concept of negligence differs in civil and criminal law. What may be begligence in civil law my not necessarily be negligence in criminal law. For negligence to amount to an offence, the element of mens rea must be shown to exist. For an act to amount to criminal negligence, the degree of negligence should be much higher i.e. gross or of a very high degree. Negligence which is neither gross nor of a higher degree may provide a ground for action in civil law but cannot form the basis for prosecution.
6. The word gross has not been used in Section 304A of IPC, yet it is settled that in criminal law negligence or recklessness, to be so held, must be of such a high degree as to be gross. The expression rash or negligent act as occurring in Section 304A of the IPC has to be read as qualified by the word grossly.
7. To prosecute a medical professional for negligence under criminal law it must be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do. The hazard taken by the accused doctor should be of such a nature that the injury which resulted was most likely imminent.
8. Res ipsa loquitur is only a rule of evidence and operates in the domain of civil law specially in cases of torts and helps in determining the onus of proof in actions relating to negligence. It cannot be pressed in service for determining per se the liability for negligence within the domain of criminal law. Res ipsa loquitur has, if at all, a limited application in trial on a charge of criminal negligence.
The then Chief Justice R C Lahoti, speaking for the three Judge Bench observed that the three essential components of medical negligence are i.
existence of a duty to take care owed by the defendants to the complainant;
ii.
failure to attain that standard of care, thereby committing a breach of such duty; and iii.
damage resulting from, and recognised by the law, from such breach.
If the court is satisfied, on evidence, that these three elements exist, the defendant should be held liable in negligence.
25.. In Martin F DSouza Vs. Mohd. Ishfaq (2009) 3 SCC 1, the above principles for determination of negligence by a medical practitioner were reaffirmed by Honble Apex Court. However, the court sounded a caution about the difficulty which arises in application of the above general principles to specific cases. (para 25) It reiterated that a medical practitioner would be liable only where his conduct fell below that of the standard of a reasonably competent practitioner in his field (para 34).
In this judgment the Apex Court has also gone over some of the decision in the past to bring out how the general principles of medical negligence have been applied to particular cases. One of the decisions discussed is in Consumer Protection Council Vs. Dr. M. Sundaram (1998) 2 CPJ 3 (NC), Its facts were very similar to those of the case before us.
The patient was admitted to a nursing home where she was diagnosed to be a case of Hodgkins Lymphoma. She was referred to another doctor who was an ENT specialist, who after examination opined that no lymph glands were seen. A sample of her bone marrow was sent to an oncologist who opined that the picture does not fit with Hodgkins disease but the patient had megaloblastic anaemia in the bone marrow. Subsequently, she was discharged from the nursing home and was advised to visit CMC, Vellore for treatment. The patient consulted another doctor who diagnosed the same as renal failure. The complainant alleged that the first doctor failed and neglected to refer the matter to a cancer specialist but wrongly diagnosed the ailment of the patient as Hodgkins lymphoma and had unnecessarily administered injection of Endoxan and because of the toxicity of that drug the kidney cells of the patient got destroyed resulting in renal failure for which she had to undergo kidney transplantation which led to her death.
26. The National Commission agreed with the State Commission and held that there was no negligence on the part of the doctor who had consulted a pathologist, and in the light of discussion with him and on inspection of some more slides of bone marrow specimens which also revealed the same finding, namely, existence of deposits of Hodgkins lymphoma, had proceeded to administer the patient injections of Endoxan. The Apex Court has observed that, Any prudent consultant physician would not delay the commencement of chemotherapy where repeated examination of the bone marrow slides had yielded the report that the Hodgkins deposits were present. Endoxan is a drug of choice in the treatment of Hodgkins lymphoma and there was no negligence on the part of the doctor.
27. The ratio decidendi of this decision applies in full vigour to the facts of the case before us.
Significantly, the return of the patient to the appellants/OPs on 16.10.2000, was in the following background a. The diagnosis in 1999 had been one of cancer of the cervix.
b. The follow up surgery itself was performed by the appellants/OPs in 1999.
c. The reports of tests done in September-October 2000 in the Army Hospital had consistently and unequivocally pointed towards a conclusion that the disease had returned.
Yet, the OPs chose to consider every test result as merely indicative/suggestive of metastasis, needing further evaluation. There is no explanation why. Significantly, the same reports allowed the Army Hospital, the Apollo Hospital and the Tata Memorial Hospital, Mumbai to reach a finding of metastasis, independently of each other. At this stage, it could not be the case of anybody that time was not of the essence. But, the urgency is not reflected in the manner the case of late Krishna Kumari was handled by the OPs. There is no explanation why the patient was not immediately admitted when she arrived on 16.10.2000. Thereafter, till the end of another two months the Cancer Institute had made no final diagnosis and therefore, had not commenced any treatment. The conduct of the appellants/OPs clearly falls below the standard of an ordinary competent person exercising ordinary skill in that profession. In our view, the three ingredients of negligence as detailed in para 24 above, are established. Therefore, considered in the light of the law as discussed above, it becomes a clear case of medical negligence as well as deficiency of service. Therefore, we find ourselves in full agreement with the finding of the State Commission that the failure to provide proper diagnosis and treatment to the patient amounted to medical negligence.
28. What is more unfortunate in this case is that this delay in diagnosis and resultant delay in treatment have happened at Rajiv Gandhi Cancer Institute and Research Centre, a premier institution of great repute. The Memorandum of Appeal itself claims The Appellant No. 1 Hospital is a premier Cancer Hospital of India specialising in treatment of Cancer ranging from Surgery, Radio Therapy, Chemotherapy and various diagnostic tests etc. It is in fact the first hospital to institute a multi speciality management system for cancer patients with a highly qualified and well resourced team of pathologists, medical oncologists and surgeons, among others, immediately available for consultation, as and when required.
It is not unreasonable to expect that such an institution shall subject itself to appropriately higher standards of professional competence and care. It goes without saying that when a person decides to be treated in such an institution, it is with the expectation of higher quality of treatment and care. In fact, the status of a hospital carries an implied assurance that the quality of diagnostic, clinical, surgical, para-medical and all other services offered by it, would be commensurate with its status and reputation. Appellant-1 (Rajiv Gandhi Cancer Institute & Research Centre, New Delhi) held out such an assurance in its own claim, noted above. At this point, it is relevant to mention here that in Balram Prasad & Ors. Vs. Kunal Saha, (2014) 1 SCC 384, a landmark decision pronounced on 24.10.2013, Honble Supreme Court has enhanced the quantum of compensation observing, inter alia, that the National Commission had not taken into consideration the status of treating doctors and of the hospital. In this view of the matter, we do not consider it appropriate to reduce the quantum of compensation as awarded by the State Commission, although we disagree with the findings of the State Commission in so far as they relate to the Radical Hysterectomy performed on late Krishna Kumari at OP-1/Cancer Institute in 1999.
29. Before parting with this case we deem it necessary to thankfully acknowledge the professional assistance received by the Commission from Dr (Mrs) Sekhon and Dr S K Gupta.
30. In view of the details considered above, the appeal is partially allowed. The findings of the State Commission, to the extent they relate to the surgery performed at Appellant-1/Hospital in 1999, are set aside. The rest of the impugned order of the State Consumer Disputes Redressal Commission, Delhi in Complaint Case No.108/2001 is confirmed. No orders as to costs.
Sd/-.
(D.K. JAIN, J.) PRESIDENT Sd/-.
(VINEETA RAI) MEMBER Sd/-.
(VINAY KUMAR) MEMBER S./-