State Consumer Disputes Redressal Commission
Sgt Chaman Lal & Ors. vs Union Of India, Mod & Ors. on 16 December, 2013
IN THE STATE COMMISSION : DELHI (Constituted under Section 9 clause (b)of the Consumer Protection Act, 1986 ) Date of Decision: 16.12.2013 Case No. C-221/2007 1. SGT CHAMAN LAL & ORS - COMPLAINANTS S/o Shri Giri Raj Singh, R/o V & PO Shekhpur Distt. Ghaziabad (UP) 2. SMT. ARCHANA SHARMA W/O Mr. Chaman Lal R/o V & PO Shekhpur Distt. Ghaziabad (UP). Versus 1. UNION OF INDIA, MOD & ORS -OPPOSITE PARTIES South Block, New Delhi. 2. DIRECTOR GENERAL MEDICAL SERVICES (AIR) Air Headquarters, West Block, R.K. Puram, New Delhi-66. 3. COL M GANGULY (MR-4141) Advisor Surgical Oncology, AHR&R, Delhi Cantt.-10. 4. BRIG B.K. SINGH, SM, VSM (MR-3240) (Consultant Orthopedics), AHR&R, Delhi Cantt.-10. CORAM : S.A. SIDDIQUI - MEMBER (JUDICIAL) S.C. JAIN - MEMBER
1. Whether reporters of local newspapers be allowed to see the judgment? yes
2. To be referred to the Reporter or not? yes S.A. SIDDIQUI (ORAL)
1. This complaint has been filed for the following reliefs:
(i) To award compensation of Rs. 99,99,000/- with Pendite-lite and future interest @ 24% p.a.
(ii) To award further cost for future treatments.
(iii) Cost of litigation.
2. Complainant No.-1, Chaman Lal is a serving sergeant of Indian Air Force whereas complainant-2 is his wife. Complainant-1 reported several time with the Armed Forces Medical Authorities (OPs) for pain in the upper part of the tibia due to some injury (from March 2001 to August 2001). The Medical authorities took X-rays twice and reported that there was No bone injury/lesion seen, (copy of the report-Annexure P-1). The complainant was thus kept under own diagnosis for a period of six months from March 2001 to August 2001. Since the complainant felt no relief, he decided to approach a private hospital at his own expenses. On 26.8.2001, he went to MAX MED Center and got an MRI done, which revealed some abnormality with tibia bone. The said abnormality could be co-related with pathologists report annexed as Annexure P-2.
After this diagnosis, complainant on 31.8.2001 was admitted to Army Hospital Research & Referral (AHR&R), Delhi Cantt for better treatment. CECT (Computed Tomography of Chest) revealed opacity 3x3 mm in RLL but no FNAC/biopsy was conducted (Annexure P-3). On 2.10.2001, the complainant bone biopsy was confirmed to be Lymphatic Capillary Active (LCA+ve) and confirmatory to Non-Hodgkins Lymphoma (a type of cancer not related to blood) in the outer layer of bone in a sample of 1 specimen 1 cell was reported to be live vide OPs Pathologists report B/2809/01 dated 2.10.01, annexed as Annexure P-4. Complainant was, therefore, put on 4 CHOP Chemotherapies w.e.f. 3.10.2001. CECT Chest became normal in December 2001, annexed as Annexure P-5, which showed significant proper response/recovery of the treatment given. Thereafter 28 days involved radiotherapies/5600 greys+ 2 more CHOP Chemotherapies as per MED Oncology Protocol were administered upto 16.2.2002.
3. Thereafter from March 2002 to May 2002, a formal MRI was conducted by the OPs (Annexure P-6) and advised/insisted to undergo removal of bone (knee replacement) but no post treatment biopsy/FNAC/PET scan was conducted/prescribed before venturing into a surgery. On 22.5.2002, complainant was advised/compelled to get himself admitted to AHR&R, Delhi Cantt. (Joint Replacement Centre) for joint replacement surgery only for removal of cancer without conducting any post treatment biopsy/FNAC/PET scan etc where even complainants next of Kin also was not allowed to meet/see or consult. On 3.6.2002, complainants knee with 7 tibia was replaced with custom built hinged knee prosthesis without carrying out any post treatment biopsy/FNAC/PET scan etc., even this was done after seen adequate response of the planned/administered course of Chemotherapy + radiotherapy by Lt. Col M. Ganguly (Onco Surgeon), Col. B.K. Singh (Ortho Surgeon), Col A.S. Bath and Col T.G.M. Nayyar. Even this too was done (fitment of artificial knee with prosthesis) in radiated burnt muscles where chances of catching of infection was very high. The post operative Histo pathologist report B/1872/02(1-6) dated 11.6.2002 says that there was no cancer (NHL) in the entire specimen so removed as reported by Lt. Col. R. Lakhtakia (Onco Pathologists). The report is annexed as Annexure P-7. Inspite of the said report and without any confirmatory diagnosis which could not be found in the post operative pathologists report and the complainant was fitted into with an Artificial knee with prosthesis (RT Leg) and the complainant being made permanent handicapped person for his remaining life.
This prosthesis (fitting of artificial knee) caught infection since it was fitting into and complainant was asked to leave the hospital with seepage/pus on operative site in July 2002.
The complainant had to suffer lot of physical and mental pain and agony which are difficult to narrate and all this could be caused due to gross negligence committed by the OPs.
4. It is noteworthy that complainant was good to move on his own before operation but after fitting an artificial knee with prosthesis in his right leg, complainant could not move without an attendant. The cost of obtaining services of an attendant amounted to Rs. 10,000/- per month.
Earlier complainant was capable of moving without sticks or without motorized tricycle (Kinectic ZX Zoom), which consumes petrol and other expenses not less than Rs. 3000/- p.m. besides the original cost of the motorized tricycle of Rs. 45,000/-. Complainant got isolated from the society and his entire life was rendered miserable. Such a colossal loss in ones life cannot be estimated in terms of money. However, it is pertinent to mention that complainant was earning a monthly salary of Rs. 11,000/- + HRA + Food + Clothing and Medical + School going TPT and TPT allows even higher rank by rank besides the complainant could have served for his remaining 19 years (the age of superannuation being 57 years) in the organization and could have been promoted upto the rank of MWO. Still Handicapped complainants name has appeared in promotion panel in the next higher rank JOW, which is being withheld by Air Force authorities due to his leg problem whereas his junior counterparts have already been promoted w.e.f. 1.7.2007 and thereafter also. Now the only treatment of the complainant is amputation of knee and thereafter there is no provision to retain as the person in the service of Air Force, which the OPs know well. Total loss by various heads has been calculated in Para 11 of the complaint to the tune of Rs. 99,99,000/-. The loss of limb of the complainant was due to omissions and commissions of the OP-3&4.
5. Despite repeated requests of the complainant, OPs did not conduct any further test like post treatment biopsy/FNAC/PET scan and tensely replied that the OPs were doctors and not the complainant. The complainant has been forced to bear with grievous hurt pain and suffering as a result of loss of limb. OPs unnecessarily fixed/fitted custom built prosthesis costing Rs. 5 Lacs, an avoidable expenditure upon Union of India, M/O Defence. They not only made complainant permanently disabled but left him at the mercy of others to even carrying on his daily routines of life.
Not only this, complainant developed infection with cellulites in December 2004 due to the aforesaid unwanted fitment made by the OPs and thereafter Proximal Migration of Patella-Tendon as reported by AIIMS Orthopedic Surgeons (Annexure P-8).
6. The complainant obtained permission from the Honble High Court of Delhi to get himself treated at Indraprastha Apollo Hospital in August 2006. There he was diagnosed to have Tuberculosis at the wound site and right inguinal lymph node instead of cancer (Annexure P-9) which by itself proves gross negligence on the part of the OPs. By relevant and important prescriptions and their true copies have been filed as Annexure P-10. The complainant had no option but to buy a motorized tricycle (Kinetic ZX Zoom) because of his permanent disablement caused by the OPs costing to Rs. 45,000/-.
Cost of this disability on account of sole negligence committed by the OPs, complainant is also being denied/deprived of his promotion. The complainant made representation in this regard but was turned down despite Honble High Courts orders. The complainant filed Writ Petitions No. 3712/03 in Honble High Court praying for an Independent Enquiry Committee to find out the negligence retention/extension of service/promotion, Attributability to Military service and compensation for loss due to negligence. Passing series of orders, Honble High Court directed the complainant to make proper representation to the authorities concerned for sympathetic consideration (Annexure P-14). The reply received from the authorities is unsatisfactory (Annexure P-15). It was further alleged that in August 2002, OPs issued medical certificate that treatment was existed only at AHR&R, Delhi Cantt.
Thereafter, issued another medical certificate on 27.4.2007 that his treatment exists at Mumbai, Pune and Banglore.
On his posting to Pune, complainant reported for treatment there, orthopaedic surgeon of AMC, Pune, opined that complainants treatment was available in AHR&R Hospital, Delhi Cantt. When complainant approached OPs at AHR&R in August 2007, one of the Oncopaedic Surgeon surviving, however, OP-4 (Col. G.R. Joshi) opined that complainant do not require any treatment whereas doctors at Pune had advised about bad condition of the affected leg.
7. It has also been alleged that Chemotherapies + radiotherapies were not of any effect or use but only surgery was warranted in this case. Why then OPs spent 4 months on that treatment and gave excessive irreparable treatment by joint replacement surgery that too when there was no cancer. Now the only possible treatment left is amputation of the leg above knee.
8. In view of the above facts and circumstances, the complaint may be allowed and be awarded adequate compensation and other reliefs as prayed.
9. OPs filed their written statement denying the plaint allegations. It was maintained that the complainant was not a consumer within the meaning of 2(1)(d) of the Consumer Protection Act 1986 (herein after called the Act) in as much as the complainant was rendered services by the OPs without any charge. The complaint was also bad in law due to misjoinder of proper and necessary parties. Complainant-2 had no locus standi for filing the present complaint. It was further maintained that the complaint was wholly misconceived having been filed with malafide intentions just to harass the OPs. There is no deficiency of service on the part of the OPs. It has been denied that the complainant was made permanently handicapped/disabled by the doctors and medical authorities. During his hospitalization, as a matter of fact, complainant, SGT Chaman Lal, was provided with best possible medical treatment. Complainant was admitted to the Army Hospital and Referral, Delhi Cantt. On 30.8.2001.
Complainant, as alleged in the complaint, had pain in his upper part of the tibia from March 01 and showed himself to the Army Medical Authorities for this and X-rays and MRI of knee were duly conducted. Since there was no bone injury, he kept himself under his own diagnosis for six months from March 2001 to August 2001. Copies of X-ray and MRI are annexed as Annexure A-1 & A-2-Colly). He was admitted on 31.8.2001 and was duly cared by the authorized medical authorities whenever he was approached them. In the course of treatment, he just decided to obtain second opinion at MAX MED Center and decided to get MRI done on 27.8.2001. This was suggestive of a Cancer in RT Tibia. He underwent a bone biopsy at Army Hospital (R&R), Delhi Cantt., which proved indignancy of Non-Hodgkins Lymphoma (NHL) of RT Tibia. CT Scan of the lungs shown metastasis spread of cancer to the lungs. Therefore complainant was to be on four cycles of Chemotherapy w.e.f.
30.10.2001. He had good response to the Chemotherapy in that his pulmonary metastasis disappeared after the four cycles of Chemotherapy. The same is seen on the revaluation of CT scan of chest dated 13.12.2001.
Thereafter, he was given radiotherapy to the bone to endorse of 5000 graze over the next six weeks and two additional courses of Chemotherapy upto 16.2.2002. It is noteworthy that this is a standard therapy for this comparatively rare tumour occurring in a lymph.
10. Complainant was admitted in R&R, Delhi Cantt Hospital on 31.8.2001 for better and effective treatment. The rest of the complaint allegations were wrong. The complainant himself has contradicted his statement in Para 5 where he admits that bone biopsy was done by the OPs on 13.9.2001 (Annx.P-4) and it confirm to be lymphatic cell active and confirmatory to Non-Hodgkins Lymphoma - a type of cancer. As a matter of fact complainant has a cancer in upper part of the RT Tibia, which had already broken through this bone into the surrounding soft tissue of the leg. Even the MRI report of the MAX MED Center revealed the very lesion in proximal tibia epimetaphysis, causing associated cortical boric, soft tissue extension along with minimal joint effusion. To ascertain the extent of spread of cancer to other parts of the body, a CT Scan of the Chest was done on 5.9.2001. The report revealed a solitary pulmonary metastasis in the RT lower lobe i.e. the cancer of the complainant had spread to his lungs. In such a cancer, FNAC/biopsy of the longs is not mandatory to determine the spread of cancer.
11. In reply to para 6 of the complaint, it was submitted that according to biopsy carried on 13.9.2001 from the tumor of the RT leg of the complainant, it confirmed the cancer. There is no dispute that when the complainant injury presented himself to the OPs in August 2001, he was suffering from advanced cancer in RT leg i.e. upper end of the RT Tibia, which had already spread to his lungs. To save the complainant from further damage, his case was discussed jointly by the whole Oncology team and a decision was taken to treat him with Chemotherapy + radiotherapy to the bone and review him subsequently depending upon the response of the complainant to the treatment. This is standard state of the art treatment for such a case. The complainant has made baseless allegations upon the OPs in May 2002 after completion of Chemotherapy + radiotherapy and before surgery, complainant complained of pain in the right knee and upper part of the right leg and was unable to pull body weight of his right leg due to pain and was putting maximum weight on his left leg. Local examination of the right knee increase temporary and upper part of the right leg of the complainant. Since even after the completion of Chemotherapy and radiotherapy, the pain in the right leg of the complainant persisted and therefore MRI was done again. From the MRI picture, it became clear that he will have a diseased bone, a month after the end of his plan of treatment with radiotherapy and chemotherapy on review of the healing status of the complainant in the month of May; MRI was taken on the complainant on 8.5.2002 which revealed that the marrow of his right tibia tuberocity and proximal 1/3 of the tibia was replaced by tumor, which was extending upto subarticular region with involvement of the joint space and there was breach of cotax antero-midilly ineadine and a fracture in the diseased bone with the involvement of medialpetalor ratineculum. When both MRI of March 2002 was compared with that of May 2002, the radiological impression in the MRI of May 2002 was suggestive of cancer again regarding in the said part. Hence it became mandatory to operate on the complainant and remove the diseased bone. Clinically and radiologically with such a picture, it is impossible to say that there are any limb cancer cell without removing the whole diseased part of the bone known as excision biopsy and subjecting it to histopathological examination. This is exactly what has been done in the case of the complainant. In case one does not remove the whole diseased bone to look for residual cancer and does biopsy only from one part, which may or may not be representative piece in a treated bone, then one would be negligent, otherwise not. In this case due diligence was observed and exigent biopsy of the part of the bone was done. This refutes the complainant allegation in para 9 that no biopsy was done before he was operated. It was totally wrong and false to say that complainant was able to move on his own before operation. Even before the operation he was suffering from the above mentioned ailment and was referred to OPs to be treated for the same. As a matter of fact, complainant had metastasis cancer RT Tibia leg called on-Hodgkins Lymphoma of RT Tibia, which has already spread to his lungs when represented himself before the OPs for treatment in August 2001.
12. However, after the end of the treatment, the complainant is still at radiological evidence of the disease in his affected leg. The same is being seen in the MRI dated 6.3.2002.
Above this, the MRI dated 2.5.2002 was suggestive of recurrence/progression of his cancer as was seen by the cortical break i.e. fracture in the bone by tumor with possible extension into the knee joint. Clinically also the complainant was still symptomatic with pain and tenderness in his leg and was unable to walk with weight bearing on his affected leg. It was emphasized that in 2002, no PET scan was available anywhere in India. At this stage, there was no way to know whether there was any residual disease in this diseased bone of the complainant which was already treated with chemotherapy and radiotherapy without taking out the whole upper part of tibia and subjecting it to histopathalogical examination. In attempt at a less biopsy could result in an incomplete evaluation which could result in a possible complete fracture and diseased bone leading to an amputation of the leg or a residual cancer could re-grow and spread thus resulting in a probable future death. Hence an exigon biopsy of whole diseased part of the bone was necessary and was done. This decision was taken after a joint decision of the whole Oncology team.
13. To avoid amputation of the diseased leg, the OPs offered a state of the art treatment by way of limb salvage surgery. The aim of this surgery was to save the lymph. The same was adopted by the complainant so that he could walk on his own feet rather than an artificial foot. Instead of accusing the OPs for negligence, the complainant should feel grateful and lucky that he had the benefit of being treated at the Hospital of the OPs since this surgery is available only on very few advanced centers.
Taken advantage of this advanced technology, the diseased bone of the complainant was removed and replaced with imported, costly customize HMRS titanium prosthesis at the cost of Rs. 5 Lacs to the OPs. Also it is pertinent to mention that complainant was not forced to undergo this surgery but knowingly and willingly gave his consent for surgery with full understanding with this surgery could save him from possible loss of limb and life.
14. The complainant was operated on 3.6.2002 and was discharged from the hospital on 26.7.2002 after complete healing of the wound and the allegation of the complainant in this regard was baseless and wrong.
15. Further, when the post treatment bone specimen is examined after lymph salvage recession, only main point to be noted is whether the cut margin of the bone and marrow is free of tumor. 100 % of the bone is not subjected to the microscopic test in a proven case of cancer just because there is no cancer seen in section examined, it does not mean that there was no tumor in other parts of the specimen, which were not subjected to microscopic test examination. In all these malignant bone/marrow tumor, if no tumor is seen grossly, it means that the combined modality i.e. Chemotherapy and radiotherapy and surgery treatment has succeeded in removing the cancer and the complainant has a high genes to complete cure.
As a matter of fact, OPs have helped the complainant to save his life and limb. There was no slightest deficiency of service and complaint was liable to be dismissed with exemplary cost.
16. The complainant filed rejoinder and affidavit reiterating the plaint allegations wholly.
17. Parties led their evidence through affidavits. They also filed written arguments, which were taken on record.
18. In compliance of the order dated 22.12.09 passed by this Commission, complainant moved an application for referring the matter to a select Committee of Doctors for expert opinion. Along with this application, the complainant filed all the relevant documents along with points of reference, which were sent to the Maulana Azad Medical College for obtaining expert opinion. The complainant formulated the following points of reference:
(a) Whether keeping the complainant under own diagnosis from March to September 2001 and failing to diagnose the disease of complainant and making complainant to run here and there when they (OPs) are/were under mandatory obligation to provide/exercise due caution and care to provide medical treatments to the complainant?
(b) Whether after administering planned course of CHOP Chemotherapy + involved Field Radiotherapy according to Medical Oncology protocol, carrying out Knee Replacement with prosthesis in a pre-planned manner by putting a person under coercion/fear of instant death is mandatory in the case of Non Hodgkins Lymphoma (bone) that too after four months of Chemo + IFRT?
(c) Whether carrying out Knee Replacement with prosthesis without carrying out any post treatment investigation like Positron Emission Tomography. Fine Needle Aspiration Cytology or true cut biopsy is justified and that too when a person is already being administered with planned course of Chemotherapy + Involved Field Radiotherapy and was moving as normal.
(d) Whether Knee Replacement with prosthesis is only technique to treat such cases whereas other techniques/options like Fuse Fibula + Arthodensis + bone grafting were also available keeping in view the age/life span of the complainant?
(e ) Whether Opposite Parties should have advised further tests before going this harsh act with complainant when their (OPs) own pathologists report says/states that There was No cancer (HL) in the entire specimens so removed and sent for pathological examination (B/1872/02(1-6) dated 11 June 2002.
(f) Whether Opposite Parties were not under mandatory duty to carry out Polymese Chain Reaction Test or Montext test for Tuberculosis as was done by Indraprastha Apollo Hospital when complainant was diagnosed to suffer with TB instead of OP diagnosis (NHL)?
19. The Dean, Maulana Azad Medical College constituted a Committee consisting of Dr. Ajay Gupta, Pro0f. (Orthopedics), Dr. Shyama Lata Jain, Prof. (Pathology), Dr. Kishore Singh, Prof. (Radiotherapy), Dr. Anju Garg, Prof. (Radiodiagnosis). After considering the summary of treatment supported by documentary evidence gave its opinion, which is noted below:
(1) Failed to diagnosed No (2) Carried out knee prosthesis in a planned manner without confirmation of recurrence-TKR is done in a planned manner even for th3e degenerative disorder. Confirmation of recurrence is not required and was only one of the many other parameters dictating the need for the knee prosthesis.
(3) Use of other technique in place of knee replacement There are other modalities of treatment available as well but it is always the surgeons choice to prescribe a particular treatment after explaining all pros and cons of the other available options and of course after taking the patients consent.
(4) Was knee replacement justified, when post operative specimen was negative for NHL Yes (to be read in conjunction with rmarks to point 2) (5) PCR or Montoux for tuberculosis done before to differential diagnosis with NHL The PCR% or Montoux are never the confirmatory tests for tuberculosis. There is high incidence of false positive PCR tests. It is unheard to ask for PCR from the tissue for biopsy. It is usually done on a sample like various body fluids or the aspirated pus etc which may not be the right sample material for obtaining histopathology. Moreover, the discharging sinus which did not heal even after completing 9 months of ATT needs to be revisited regarding correctness of its diagnoses.
20. After receipt of the expert opinion, objection was invited by this Commission. As the complainant was dissatisfied with the opinion given by the Expert Committee, he filed objection on the ground that the composition of the Board was inappropriate in as much as no Doctor of Medical Oncology and MD in Medicine were included in the Committee. The Expert Committee while giving its opinion did not support the same by evidence and therefore as held by the Honble Supreme Court in V Krishna Rao Vs. Nikhil Super Speciality Hospital, this Commission was not bound to accept the expert opinion of the Committee.
21. We have heard SGT Chaman Lal, complainant in person and Ms. Manisha Lavania, Counsel for OP-1 to 4.
22. It was argued by the complainant that OPs kept him under own diagnosis from March 01 to Oct. 01 when he was continuously complaining pain in his right leg. OPs did not take adequate care and adopted casual and negligent approach. The complainant became tired with empathical approach of the OPs decided to get MRI test conducted at Max Hospital at his own expenses, which revealed abnormality in tibial bone of right led contract to OPs diagnosis and prescriptions. Failure to diagnose appropriately at initial stage amount to negligence [Suma AS Vs. Hema Divakar
- I(200&) CPJ 451 KSCDRC Bangalore].
23. On 31.8.2001, complainant reported to AHR&R, Delhi Cantt along with MRI report. According to OPs, CT Scan of chest revealed opacity 3x3 mm in right Lower Lung basal region. No Biopsy/FNAC for Right Lower Lung was conducted by OPs to confirm whether it was TB/Cancer (NHL)?, which shows negligent attitude of the OPs. He argued that according to bone biopsy of right leg bone one cell LCA positive was found in one inch bone specimen and confirmatory to Non Hodgkins Lymphoma (NHL). No sub type was disclosed/declared by the OPs. The complainant was treated with 4 CHOP + 28 IFTR/39dats/5600 grays were given over tibial bone and thereafter two more CHOP chemotherapies were given from Oct 01 to Feb 02. This was the right treatment according to medical oncology protocol. MRI of right leg was conducted by OPs in March 2002.
No cortical breaks were apparent and some bone lesion was reported. Complainant was called in May-June 2002 to undergo the joint replacement surgery even though the OPs knew that complainant had NHL in his right leg bone. The complainant further argued that in compliance of the OPs/Doctors advice of March 2002, complainant reported to OPs to undergo the joint replacement surgery. On 3.6.2002, more than 7 bone of complainants right leg was removed by the OPs and an artificial knee with prosthesis was fitted into without conducting a post chemotherapy + IFRT biopsy/FNAC/PET Scan that too when complainant was only 32 years old. The complainant emphasized that on account of unwarranted fitment made by the OPs, complainant developed infection with cellulites in December 2004. Complainant alleged that he was given treatment of cancer, which was later on found to be wrong and ultimately could lead to the amputation of the leg above the knee. Complainant also alleged that his operated leg caught infection with cellulites immediately after the surgery and the complainant was discharged from the hospital even when infection was going on. Patella Tendon migrated in April 2005 diagnosed by AIIMS because of infection and surgery was done in casual manner, which amply proves negligence on the part of the OPs. Not only this, the complainants leg infection including lymph nodes (inguinal) were found to be TM positive instead of NHL and a similar opacity in the CT Scan of chest was too reported by Indraprastha Apollo Hospital, Delhi in August 2006 as was reported by OPs in September 2001. The complainant further alleged that due to gross negligence on the part of the OPs, complainant has been placed in permanent low medical category which has infringed complainants legal right to get promoted to the next high rank/ranks. Thus, complainant has suffered huge loss which can hardly be estimated in terms of money. The main grouse of the complainant was that it is undisputed that chemotherapy and radiotherapy are used for treatment of NHL and role of surgery is very poorly defined. After initial biopsy surgery is very rarely indicated. Even then the OPs negligently conducted surgery after administrating the right planned course of treatment.
24. In support of his arguments, complainant relied upon the following rulings:
(a) Indian Medical Association Vs. VP Shantha 1995 6 SCC 651.
(b) Union of India Vs Wg Cdr KK Choudhry (Retd) FA 259/2007 decided by this Commission on 3.4.2008.
(c ) I (2004) CPJ 257 Uttaranchal State Consumer Disputes Redressal Commission, Dehradun.
(d) GDA Vs. Blabir Singh (2004) 5 SCC 65.
(e ) V Krishna Rao Vs Nikhil Super Specialty Hospital & Ors (2010) CPJ 868 SC.
25. On the other hand, counsel for the OPs argued that Sgt. Chaman Lal is a serving Sergeant in the Indian Air Force. He was admitted in Army Hospital Research & Refferal Center (AHR&R), Delhi Cantt. On 31.8.2001 with complaint of pain at upper part of right leg of six month duration and fever of four days. The doctors at the Army Hospital/OPs provided him the best possible medical treatment. After examination of MRI report Max Med Center dated 26.8.2001, it was found a variegated lesion in the proximal tibial emimetaphyses, causing associated cortical break soft tissue extension along with minimal joint effusion. Differential diagnosis mitotic pathology such as Osteogenic Sarcoma (a form of cancer). It clearly showed that complainant was suffering from cancer in upper part of right tibia which had already broken through the bone into surrounding soft tissue of the leg. CT Scan test of the complainant was conducted on 5.9.2001 in AHR&R which revealed a solitary pulmonary metastasis in the right Lower Lobe of right Lung i.e. cancer spread to the lung. It is noteworthy that in such a cancer, FNAC/Biopsy of the lung was not mandatory to determine the spread cancer. Biopsy of right leg was carried out on 13.9.2001 at AHR&R which confirmed cancer (NHL) in the upper part of right tibia. The case of the complainant was jointly discussed by the whole Oncology team and the decision to treat the complainant with Chemotherapy and radiotherapy to the bone was taken, which was reviewed subsequently. It should be noted that this is a Standard State of Art treatment in such a case. The complainant had a good response to the treatment given and his Pulmonary Metastasis disappeared after 4 cycles of Chemotherapy, which is clear from revaluation CT Scan Test dated 13.12.2001. There was no need for an FNAC/Biopsy from the lung lesion.
Radiotherapy to the bone was given a dose of 5600c grays over the next six weeks and addition two course of Chemotherapy upto 16.10.2002. The complainant was then referred back to Surgeon by the Medical Oncologist. MRI leg was done which showed a large right Tibial metadiaphyseal bone lesion in right tibia. Residual disease (cancer) could clearly be seen in the whole upper part of tibia.
It was clear that the complainant still had a diseased bone, a month after the end of his planned treatment with radiotherapy and chemotherapy. On review in May 2002, MRI dated 8.4.2002 revealed that the marrow of his right tibial tuberosity and proximal 1/3 of right tibia was replaced by tumor, which extended up to subarticular region. In a known case of NHL, compared to the MRI of March 2002, the Radiological impression in May 2002 was suggestive of the cancer again regrowing in the part, therefore, it became mandatory to operate and remove the diseased bone. Clinically and radiologically with such a picture, it was impossible to say whether there was any live cancer cells without removing the whole diseased part of the bone (Excision biopsy) and subjecting it to histopathological exam. This is exactly what was done in this case. In case one does not remove the whole diseased bone to look for residual cancer and does a limited biopsy from only one part, which may or may not be a representative piece in a treated bone, then one would be negligent and not vice versa.
26. Besides, the case sheet of the complainant revealed that in May 2002 after completion of Chemotherapy plus radiotherapy and before surgery, the complainant still complained of pain in the right knee and upper part of the right leg and was unable to put full weight on his right leg due to pain and was putting maximum weight on his left leg. It was noteworthy that in May 2002, clinical and radiological picture of the complainant made it necessary that the operation should be done of the diseased part. Keeping all post operative complication in mind and in less advanced centre, the complainant would have been subjected to an above knee amputation at this stage. It was, therefore, very fortunate for the complainant that he was treated at the centre of OPs where the complainant had the advantage of having a team experienced in limb salvage surgery, which had managed to save the leg of the complainant by removing only the diseased part of his bone and replacing it with a costly Titanium Prosthesis. The complainant was operated on 3.6.2002 and was discharged from the hospital on 26.7.2002 after complete healing of the complainants wound.
It is noteworthy that even before the operation, complainant was suffering from ailment and was referred to the Army Hospital for treatment of the same.
Even before operation the complainant was not a fit soldier and was not able to walk with weight bearing on his diseased right leg. Thus the facts remain that the complainant was handicapped even before the surgery.
27. It was further argued that OPs provided complainant right treatment for cancer by way of six cycles of Chemotherapy and radiotherapy and his right leg responded well to the treatment. However, after the end of the treatment, the complainant still had a radiological evidence of disease in his affected leg which was to be expected.
28. The complainant offered to take the State of Art Treatment by way of limb Salvage Surgery, i.e. saving his limb so that he can walk on his own natural feet rather than an artificial foot.
He was lucky that he had the benefit of being treated of the Hospital of OPs since at that time (2002), this surgery was available only at very few advanced Centers like AHR&R, Delhi, wherein only the diseased bone was removed and replaced with an important costly customized HMRS Titanium Prosthesis at a cost of 5 lacs to the Government. The treatment was totally voluntarily in nature.
29. The complainant was followed up regularly by team of specialists and orthopedic surgeon till 6.9.2007. It is unfortunate that complainant has made false and frivolous allegations against the OPs overlooking the best efforts of the team of the specialists. He should realize that he is alive today and is still serving before the OPs. It is a tribute to the State of Art Treatment which has been received by him from the OPs.
30. It was also argued that following the decision of the Honble Supreme Court in Mortin F Dsouza Vs Mohd Ishfaq (2009) 3 SCC.
The case was referred for expert opinion of the Committee of doctors which has submitted its report. In view of the expert Committee report, the complaint deserves to be dismissed.
31. It was also argued that in view of the decision of the Honble Supreme Court in Indian Medical Association Vs VP Shanta AIR 1996 SC 550, Medical Professionals, Government Hospital, Nursing Homes and Private Hospitals where services are rendered free of charge to every patient, such doctors and Hospitals are excluded from the purview of th Consumer Protection Act, 1986. Further in the matter of Manager, Hotel Kaniskha Vs. Saroj Attal & Ors 1997 (1) CCC Consumer 247 (NS). It has been clearly held that Government Servant is excluded from the purview of the Consumer Protection Act 1986 to claim damages against the State. The respondent was a government servant and was bound by the service conditions and the State was rendering services free of charge to the contesting respondent.
Under these circumstances, the government servant was excluded to claim damages against the State under the Act.
32. We gave a very patient hearing to the arguments advanced by the complainant himself and the Ld. Counsel for the OPs.
We have also carefully considered the evidence on record.
33. The main grouse of the complainant was that due and diligent medical care was not provided to the complainant by the OPs.
Throughout the course of treatment, the attitude of the doctors of the Hospital was careless and negligent . He was operated upon and fitted with custom built prosthesis by OP-3 & 4 when he was aged about 32 years. He was given a treatment of cancer, which was later on found to be wrong and ultimately would lead to the amputation of the leg above the knee. But the Expert Committee in its report dated 27.10.2010 did not agree with the allegations contained in the reference formulated by the complainant and absolved the OPs. The Expert Committee did not find the OPs guilty of committing medical negligence. Since the opinion of the Expert Committee is available on record to whom the matter was referred, we have to go by the Expert Committee report unless there are good enough reasons to disagree with the Expert Committee report. It is well settled that the Courts and the Consumer Foras are not expert in medical sciences and must not substitute their own views over that of specialists. In our considered view no reliable evidence and substantial reasons have been assigned by the complainant to reject the Expert Committee Report. The Expert Committee in its report has not held the OPs liable for medical negligence.
34. There is another aspect of the matter too. In Indian Medical Association Vs VP Shantha [III (1995) CPJ 1 SC], the Honble Supreme Court has clearly held that Doctors and Hospitals broadly fall within 3 categories:
(1) Where services are rendered free of charge to everybody availing the said services;
(2) Where charges are required to be paid by everybody availing the services (3) Where charges are required to be paid by a person availing of services but certain categories of persons who cannot afford to pay are rendered services free of charge.
35. Doctors and Hospitals, who render services free of charge to every person availing service, would not fall within the ambit of Service under Section 2 (1) (o) of the Consumer Protection Act 1986. Payment of token amount for registration purposes only would not alter the position in respect of such Doctors and Hospitals.
36. Undoubtly in the present case, medical treatment to the complainant was provided free of charge. The complainant was also a Government Servant and in view of the decision of the Honble Supreme Court in the matter of Manager, Hotel Kaniskha Vs. Saroj Attal & Ors 1997 (1) CCC Consumer 247 (NS), a Government Servant is excluded from the purview of the Consumer Protection Act to claim damages against the State. The Government Servant was bound by the service conditions. The State was rendering services free of charge to the contesting complainant and therefore, complainant was debarred from claiming damages against the State.
37. In view of the above facts, circumstances and the legal position, the complaint fails and is hereby dismissed.
38. Before closing the discussion, it would be in the interest of justice to mention here that as of now the complainant has already suffered a lot, physically, mentally and otherwise. Therefore, we earnestly hope and recommend that complainant be sympathetically considered for promotion by the Authorities concerned, even if it needs amendment or modification of the governing statute, rules or regulations.
ORDER As a result, the complaint is found without force and is accordingly dismissed. However, the parties will bear their own costs.
39. A copy of this judgement and order as per the statutory requirements be provided to the parties free of cost and thereafter the file be consigned to Record Room.
(S.A. SIDDIQUI) MEMBER (JUDICIAL) (S.C. JAIN) MEMBER rn