State Consumer Disputes Redressal Commission
Smt. Varsha Baghel vs Sarvoday Hospital & Anr. on 11 February, 2016
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G.)
Complaint Case No.2014/25
Instituted on : 25.09.2014
01. Manish Baghel, Age 39 years,
S/o Late Banshilal Baghel.
02. Minor Samridha Baghel, Age 06 years,
S/o Shri Manish Baghel,
Through : Natural Guardian Father Shri Manish Baghel,
S/o Late Shri Banshilal Baghel,
R/o : Durga Mandir Road, Behind Pranjal Provision Stores,
Dubey Colony, Mowa, Raipur City,
Tehsil and District Raipur (C.G.). ... Complainants.
Vs.
1. Sarvodaya Hospital,
Through : Dr. Sushma Verma,
Dubey Colony, Near Police Station, Mowa, Raipur City,
Tehsil and District Raipur (Chhattisgarh)
2. Vibha Colour Sonography and Diagnostic Centre,
Through : Dr. Renuka Gahine,
Beside Shyam Plaza, Ravi Nagar Turning,
Bus Stand, Pandri, Raipur City,
Tehsil and District Raipur (Chhattisgarh)
3. United India Insurance Company Limited,
Through : Manager,
44/2, Church Road, Bhogal,
New Delhi - 011 ... Opposite Parties
PRESENT: -
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE MS. HEENA THAKKAR, MEMBER
HON'BLE SHRI D.K. PODDAR, MEMBER
HON'BLE SHRI NARENDRA GUPTA, MEMBER
COUNSEL FOR THE PARTIES:
Shri Horilal Chandrakar, for the complainants.
Shri N.K. Thakur and Shri Manoj Prasad, for O.P.No.1.
Miss Praveen Arora, for the O.P. No.2.
Shri P.K. Paul, for the O.P.No.3.
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ORDER
Dated : 11 /02/2016 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT. The complainant filed this consumer complaint under Section 17 of the Consumer Protection Act, 1986 against the OPs seeking reliefs as under :-
(a) To direct the OPs to jointly and severally pay a sum of Rs.60,00,000/- (Rupees Sixty Lakhs Only) to the complainants towards compensation for medical negligence.
(b) To direct the OPs to pay a sum of Rs.38,00,000/- (Rupees Thirty Eight Lakhs Only) for treatment expenditure, compensation for mental agony, physical agony ect.
(c) To direct the OPs to pay a sum of Rs.1,00,000/- (Rupees One Lakh Only) towards cost of litigation.
(d) To direct the OPs to pay other compensation, as this Commission deems fit.
2. Brief facts of the complaint are that : the wife of the complainant No.1 and mother of the complainant No.2 Smt. Varsha Baghel (deceased) was suffering from the pain and during her treatment in Shubkamana Hospital, Mowa, Raipur she came to know that she is having tumor in the ovary, therefore, on 14.10.2013, she was admitted in O.P.No.1 Hospital for her treatment. The O.P.No.3 is insurer of the O.P.No.1. The O.P.No.3 issued Professional Indemnity Dr. (Other) Policy No.042382/46/13/35/00000036, which is effective from // 3 // 21.04.2011. On 14.10.2013 the deceased O.P.No.1 conducted operation of tumor of ovary of the deceased through Laparoscopy by giving general anaesthesia to her. Though generally looking the size of the tumour it was expected that the open surgery would be conducted after examining the tumour of the ovary. The residue which was removed from the tumour was sent to Diagnostic Centre of O.P.No.2 for biopsy test. The O.P.No.2 prepared slide of residue, which was removed from the tumour, on 14.10.2013 and provided report dated 19.10.2013 but the O.P.No.2 did not give any adverse comments and informed that all are normal, therefore, the treatment of the deceased was continued. The complainants have paid the entire charges for treatment, test, operation to the O.P.No.1 & O.P.No.2. The deceased was admitted in the O.P.No.1 Hospital on 18.03.2014 due to pain in the abdomen, where during treatment, after obtaining Sonography Report it was informed that there was tumour in the left side of the abdomen of the deceased and M.R.I. test was conducted at Dr. Lal Pathology, Raipur which was required to be conducted prior to operation. From the above test, it was informed that the deceased was having Cancer which reached to the fourth stage. After receiving the information that the deceased Smt. Varsha Baghel, is having cancer, the complainant No.1 and her relatives took the deceased Smt. Varsha Baghel to Nanavati Hospital, Mumbai for her treatment on 22.03.2014 where she took treatment. During the treatment, on 23.03.2014, Liver Function Test (LFT) and other required tests were conducted. During the test, it // 4 // was informed to the deceased Smt. Varsha Baghel and her husband that the pain killer (Nemoslide) which was given by the O.P. No.1 to the deceased Smt. Varsha Baghel, is prohibited by the Central Government. The Nanawati Hospital, Mumbai prepared slide of the tumour, which was removed from the abdomen of the deceased, on 14.10.2013 by O.P.No.1. After testing the slide sent by the O.P.No.2, it came to know that on 14.10.2013 the deceased was having Cancer. The O.P.No.1 did not use proper procedure for conducting operation. If the timely test of Tumour of Ovary of deceased Smt. Varsha Baghel, would have been done and operation would have been conducted through Open Surgery, then the entire tumour would have came out together, but the O.P.No.1 chose procedure of Laparoscopic Operation, which was not successful and removed the tumour in parts, resultantly the tissue of the cancer remained and after operation spread. According to condition and stage of the tumor and on the basis of experience of the Surgeon, open surgery was required to be conducted. The O.P.No.1, did not test the tumour existed in ovary of the deceased prior to conducting operation. If the test was conducted by the O.P.No.1 prior to conducting operation, then on receiving information regarding cancer, the operation and nature of the treatment would other and at the time of confirmation of the cancer, immediately sufficient treatment could have been given. Prior to conducting operation, necessary test was not conducted. Looking to the seriousness of the disease, it was required for the O.P.No.1 to obtain opinion from the experts and to prepare C.D. // 5 // of the operation but it was not done by O.P.No.1. Thereafter the O.P. No.1 gave deceptive information and misled them. The act of the O.P.No.1 shows deficiency in service. If the O.P.No.1 would have conducted timely test prior to conducting operation of the tumour present in ovary of the deceased, then the cancer which was spread in the left would have been detected at that time. It was expected that prior to conducting operation, the previous diseases would be cured and it is necessary that the patient was to be examined, which was not done by the O.P.No.1. The O.P.No.2 conducted examination of the deceased wrongly due to which there was loss of body and life. Due to use of the prohibited medicines after operation, loss was caused to the other parts of the deceased, which took the deceased towards death. Hence the complainant filed complaint before this Commission.
3. The O.P.No.1 filed written statement that prima facie the complaint filed by the complainant is not maintainable. The complainants did not file any documents from which prima facie it is established that the O.P.No.1 committed negligence. In the instant case report of any expert has not been filed to the effect that there is negligence of the O.P.No.1. For proper decision of the complaint case, the United India Insurance Company Limited Through Manager, 44/2, Church Road, Bhogal, New Delhi 011 is also a necessary party, because the above Insurance Company has issued Profession Indemnity Dr. (Other) Policy and the number of the Policy is 042382/46/13/35/00000036. As per record of the O.P.No.1 Hospital // 6 // the deceased was admitted in the O.P.No.1 Hospital on 14.10.2013 at about 2.30 P.M. and thereafter necessary tests were conducted. The tumor of size did not determine that the operation be conducted through laparoscopy. The Shubhkamna Hospital, Mowa, Raipur advised the complainant No.1 and deceased Smt. Varsha Baghel for conducting Open Surgery, but the complainant No.1 and the deceased Smt. Varsha Baghel, did not give their consent for Open Surgery and on request of the relatives of the deceased Smt. Varsha Baghel, the deceased Smt. Varsha Baghel, was referred from Shubhkamna Hospital, Mowa, Raipur to O.P.No.1 Hospital for conducting operation through Laparoscopy procedure. The residue of tumour was not sent by the O.P.No.1 to O.P.No.2 for Biopsy. The deceased Smt. Varhsa Baghel herself went to O.P.No.2. Prior to coming the O.P.No.1, the deceased went to O.P.No.2 on 14.10.2013 and took advice, where Sonography was conducted. The deceased came to O.P.No.1 Hospital on 17.03.2014 with complaint of pain in abdomen and she was admitted. Prior to that she came to Kharora on 27.10.2013 and 19.01.2014. The Sonography was conducted on 18.03.2014 and information regarding tumour was given. C.T. Scan and MRI tests were not conducted from Dr. Lal Pathology, Raipur. It is not required to conduct above test prior to conduct operation. On 14.10.2013, the deceased was in shock and she was having fever which is symptoms of Septicemia and Necrosis. As per Sonography Report, the deceased was having torsion ovary, which come in emergency disease and is cured by conducting operation so // 7 // that if possible ovary and life of the patient can be saved. The O.P.No.1 did not inform through the above test that he deceased Smt. Varsha Baghel, was having cancer which reached to fourth stage. It is not possible that tumour is completely came out after conducting Open Surgery. In the Gross Findings of the Biopsy Report, the size of both the tumour is mentioned which is measured by the Pathologist. Out of which the size first tumour measured was 9 x8x4 CM and size of second piece of left ovary was measured 4x3x2 CM. Therefore the fact that tumour was removed in pieces by conducting operation, is incorrect. The confirmation of Cancer was possible only after Biopsy Report. In the first test, in the Biopsy Report it is mentioned Mucinous Cystadenoma which is not Cancer. The O.P.No.1 herself is an expert. Preparation of CD is not necessary. The operation was conducted in the presence of Dr. Smt. Meera Baghel, who herself is Gynecologist and relative of the deceased Smt. Varsha Baghel. The husband of the deceased , Complainant No.1, was also called inside the operation room and make aware regarding the status through monitor. The O.P.No.1 did not commit any deficiency in service. The operation was conducted as per prescribed procedure. It cannot be ascertained by conducting any test that the cancer spread through left or right ovary. The prohibited medicine was not used and the parts of body of the deceased had not suffered damages and the deceased reached to death. The O.P. No.1 treated the deceased according to the test report given by the O.P.No.2. The treatment was not given carelessly. The // 8 // deceased did not spend Rs.15,00,000/-. The reply of the notice sent by the complainants has already been given by the O.P.No.1. The complainants filed the instant complaint to harass the O.P.no, which is liable to be dismissed with cost. The complainants are not entitled to get any relief from the O.P.No.1. Earlier the deceased took homeopathy treatment and the complainants suppressed the above fact. As per advise of a BHMS (Homeopathic) physician, Sonography was conducted on 15.02.2014 which was shown by the deceased to the O.P.No.1 on 17.03.2014 and not prior to that. The deceased did not come regularly for follow up. After opening stitching, the deceased only came for two times. After conducting checkup on 27.10.2013, the deceased was told to come after 15 days for follow up because there is possibility of Recurrence in Mucinous Cystadenoma, but the deceased came on 19.01.2014 after lapse of about 3 months. Thereafter she came on 17.03.2014 i.e. after two months and again she came on 20.03.2014 and in the meantime CT scan was conducted. After 20.03.2014, the O.P.No.1 did not treat the deceased. The deceased was not careful regarding her health and she did not come for follow check up as per advice of the physician. The O.P.No.1 did not commit medical negligence. The complainants made the O.P.No.1 as party in the complaint to harass her. There is mis-joinder of the necessary parties. Therefore, the complaint is liable to b dismissed against this opposite party with cost.
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4. The O.P.No.2 filed her written statement and denied the allegations made by the complainants against her in the complaint. The O.P.No.2 averred that the O.P.No.2 did not tell the complainant No.1 or deceased Smt. Varsha Baghel that report is normal. The O.P.No.2 has examined the pieces in question. The O.P.No.2 conducted Histopathology Test minutely and she gave detailed report on 19.10.2013 in which she did not mention Final Histopathological Diagnosis and she gave her conclusion only "Impression" and informed that "S/o" suggestive of which mean that it is only possibility and not final or confirmatory and it cannot be confirmed finally. The Ovarian Cystanduoma is a kind of Benign Tumour, which is a type of cancer which is not spread in the body and in Histopathological Report some time the slide of benign tumour and malignant tumour is looking similar and opinion can be made with the help of Clinical Symptom and sign. The O.P. No.2 did not examine the pieces which were removed from the abdomen of the deceased Smt. Varsha Baghel. The O.P.No.2 did not commit any error in the test report dated 19.10.2013. The condition of the deceased Smt. Varsha Baghel did not become serious due to report of the O.P.No.2. The complainants are not entitled for getting any compensation from the O.P.No.2. The O.P.No.2 further averred that she is a Senior Histopathologist and she has experience of about 25 years in the above field. At present the O.P.No.2 is working as Professor and Head of Department in Pathology Department, J.N.M. Medical College, Raipur. The // 10 // Histopathology subject is assumed a main part of Pathology in which diseases of all parts of the body and diseases occurred in the Tissues are studied through Microscopes. The O.P.No.2 is having vast experience in this subject. When any part of the body or tissues are removed through surgery, then Histopathologist prepares the slide of the above tissue and study the Morphology of the tissues and the structures visible inside Morphology through Microscope and give report to the surgeon regarding the diseases which is seen. The O.P.No.2 gave her detailed Histopathology report on 19.10.2013 in respect of the Tissue, in which Histopathologist mentioned in detail regarding the test of the tissue done by the Pathologist. In these circumstances, if his/her conclusion is different from the conclusion of any other expert, then only on this ground he/she cannot be held guilty of medical negligence. The O.P.No.2 cannot be held guilty because she did not give her Final Diagnosis and in her finding she mentioned S/O "Suggestive of". Report is not completely negative and only possibility was expressed The disease is started and press the possibility of it and in these circumstances again review is necessary. The O.P.No.2 did not commit any deficiency in service and the complaint is liable to be dismissed against the O.P.No.2.
5. The O.P.No.3 filed its written statement and denied the allegations made against it in the complaint. In the instant case, any Court has not pass any order against the Sarvodaya Hospital in respect of negligence and the O.P.No.1 did not provide copy of such order to // 11 // the O.P.No.3, therefore, the complaint is not maintainable against the O.P.No.3 and it is pre-mature. The complainants did not any insurance cover by pay premium amount to the O.P.No.3, therefore, there is no privity of contact between them, therefore, the complainants are not consumer of the O.P.No.3 under Section 2(1)(d) of the Consumer Protection Act, 1986, therefore, the complaint filed by the complainants is not maintainable and is liable to be dismissed. The complainants did not submit any claim before the O.P.No.3 and no dispute has arisen between them, from which the complaint received basis. The O.P. No.3 has not accepted or rejected the claim of the complainants, therefore, no fault has been committed by the O.P.No.3, therefore, the complaint against the O.P.No.3, is liable to be dismissed. The complainants have not mentioned in their complaint or proved that the O.P.No.3 has committed any deficiency in service, therefore, the complaint is not maintainable is liable to be dismissed. The complainants are not entitled to get any compensation from the O.P.No.3. The O.P.No.3 did not commit any deficiency in service. The complaint is liable to be dismissed.
6. The complainants filed documents. The documents are photocopies of treatment bill for treatment taken at Mumbai, treatment bill of Mittal Hospital, bills of Hanuman Medicose, Mittal Hospital and Metropolis Pathology, travelling bill.
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7. The O.P. No.1 has also filed documents. Annexure OP-1 is Notification of Government of India dated 10.02.2011, OP-2 is Indoor paper from 10.10.2013 to 17.10.2013, OP-3 is OPD paper dated 14.10.2013, OP-4 is Refer Paper dated 14.10.2013, P-5 is Sonography Report dated 14.10.2013, OP-6 is Indoor Paper 27.10.2013 and 17.03.2014 to 20.03.2014, OP-7 is literature on Surgical Science 2011, OP- 8 is literature on Ovarian torsion year 2011, OP-9 is Biopsy Report dated 19.10.2013, OP-10 is Sonography Report dated 15.02.2014, OP-11 to OP 14 is OPD register dated 27.10.2013.
8. The O.P.No.2 has filed Literature of Sternberg's Diagnostic Surgical Pathology.
9. O.P.No.3 has filed Professional Indemnity Dr. (Other) Policy, Policy No.042382/46/13/35/00000036 (Duplicate) Period of Insurance from 00:00 hrs. of 21/04/2013 to midnight of 20/04/2014.
10. Shri Horilal Chandrakar, learned counsel appearing for the complainants has argued that O.P.No.1 conducted laparoscopic operation instead of the open surgery. If the open surgery was conducted by the O.P.No.1, the entire tumour would have come out together but the O.P. No.1 conducted laparoscopy operation and removed the tumour in parts resultantly the tissue of the cancer remained and after operation spread. The O.P.No.1 without obtaining MRI and CT Scan conducted operation and the O.P.No.2 prepared slide of residue which was sent by the O.P.No.1 and provided report dated // 13 // 19.10.2013 but the O.P.No.2 did not give any adverse comments and gave report to the effect that tumour is normal. On the basis of report given by the O.P.No.2, the treatment of the deceased Smt. Varsha Baghel was continued, but when her health could not be recovered, then the deceased Smt. Varsha Baghel, was admitted in O.P.No.1 Hospital. After operation Sonography, MRI and CT Scan test were conducted. Dr. Lal Pathology reported that deceased Smt. Varsha Baghel was having cancer, which reached to 4th stage, thereafter, deceased Smt. Varsha Baghel was taken to Nanawati Hospital, Mubai on 22.03.2014 and after investigation it was informed that the O.P.No.1 provided pain killer (Nemoslide) to the deceased Smt. Varsha Baghel, which was prohibited by the Central Government, therefore, due to negligent act of the O.P.no.1, the deceased Smt. Varsha Baghel had suffered from cancer and O.P.No.2 gave incorrect report, hence the deceased Smt. Varsha Baghel could not be treated properly. Even O.P.No.1 also did not perform her duty properly and without obtaining Sonography, MRI and CT Scan Reports, conducted Laparoscopic Operation instead of Open Surgery, which comes in the category of medical negligence and due to negligent act of the O.P.No.1 & O.P.No.2, ultimately the deceased Smt. Varsha Baghel died due to Cancer, therefore, the complainants are entitled to get compensation, as prayed in the complaint.
11. Shri N.K. Thakur, learned counsel appearing for the O.P.No.1 has argued that the complainants have not filed any expert report to // 14 // prove there is medical negligence on the part of O.P. No.1. For proper decision in the case, it is necessary for the complainants to obtain expert opinion, but the complainants did not obtain any expert opinion. The Doctors of Shubhkamna Hospital, Mowa, Raipur advised the complainant No.1 and deceased Smt. Varsha Baghel for conducting Open Surgery but the complainant No.1 and deceased Smt. Varsha Baghel, did not give their consent for Open Surgery and the relatives of the deceased Smt. Varsha Baghel took her in O.P. No.1 Hospital and they requested the O.P.No.1 for conducting Laparoscopic operation, therefore, Laparoscopic operation was conducted by the O.P.No.1. The residue of tumour of the deceased Smt. Varsha Baghel was not sent by the O.P.No.1 to O.P.no.2. The complainant No.1 Manish Baghel himself took residue of the tumour of the deceased Smt. Varsha Baghel for biopsy test before O.P.No.1. Prior to coming to O.P.No.1 Hospital, the deceased Smt. Varsha Baghel went to O.P.No.2 on 14.10.2013 and took advice, where Sonography was conducted. As per Sonography Report, the deceased was having torsion ovary, which comes in emergency disease and is cured by conducting operation so that for saving life of the patient, the operation was conducted. The O.P.No.1 did not commit any medical negligence, therefore, the complaint is liable to be dismissed.
12. Miss Praveen Arora, learned counsel appearing for the O.P.No.2 has argued that O.P.No.2 did not tell the complainant No.1 or deceased Smt. Varsha Baghel that report is normal. The O.P.No.2 has // 15 // examined the pieces in question. The O.P.No.2 conducted Histopathology test minutely and she gave detailed report on 19.10.2013 in which she did not mention Final Histopathological Diagnosis and she gave her conclusion only "Impression" and informed that "S/o" suggestive of which mean that it is only possibility and not final or confirmatory and it cannot be confirmed finally. The Ovarian Cystanduoma is a kind of Benign Tumour, which is a type of cancer which is not spread in the body and in Histopathological Report some time the slid of benign tumour and malignant tumour is looking similar and opinion can be made with the help of Clinical Symptom and sign. The O.P. No.2 did not examine the pieces which were removed from the abdomen of the deceased Smt. Varsha Baghel. The O.P.No.2 did not commit any error in the test report dated 19.10.2013. The condition of the deceased Smt. Varsha Baghel did not become serious due to report of the O.P.No.2. The complainants are not entitled for getting any compensation from the O.P.No.2. The O.P.No.2 further averred that she is a Senior Histopathologist and she has experience of about 25 years in the above field. At present the O.P.No.2 is working as Professor and Head of Department in Pathology Department, J.N.M. Medical College, Raipur. The Histopathology subject is assumed a main part of Pathology in which diseases of all parts of the body and diseases occurred in the Tissues are studied through Microscopes. The O.P.No.2 is having vast experience in this subject. When any part of the body or tissues are // 16 // removed through surgery, then Histopathologist prepares the slide of the above tissue and study the Morphology of the tissues and the structures visible inside Morphology through Microscope and give report to the surgeon regarding the diseases which is seen. The O.P.No.2 gave her detailed Histopathological report on 19.10.2013 in respect of the Tissue, in which Histopathologist mentioned in detail regarding the test of the tissue done by the Pathologist. In these circumstances, if her conclusion is different from the conclusion of any other expert, then only on this ground she cannot be held guilty of medical negligence. The O.P.No.2 cannot be held guilty because she did not give her Final Diagnosis and in her finding she mentioned S/O "Suggestive of". Report, is not completely negative and only possibility was expressed. The disease is started and press the possibility of it and in these circumstances again review is necessary. The O.P.No.2 did not commit any deficiency in service and the complaint is liable to be dismissed against the O.P.No.2.
13. Shri P.K. Paul, learned counsel appearing for the O.P.No.3 has supported the arguments advanced by the learned counsel for the O.P.No.1 and O.P.No.2. The complaint is liable to be dismissed.
14. We have heard learned counsel for the parties and have perused the documents filed by the parties in the complaint.
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15. Now we shall examine whether the O.P.No.2 committed negligence by adopting procedure of laparoscopic operation instead of open surgery.
16. In document OP-4 i.e. Prescription of Shubhkamna Hospital dated 14.10.2013, it is mentioned thus :-
"Mrs. Varsha Baghel 14.10.2013
32 years 01.30 P.M.
- Patient came at around 09:30 AM with complaints of severe pain in lower abdomen since 1 day, pain increased since today morning.
- C/o similar episodes of pain off n on.
- USG reports suggestive of right ovarian torsion.
- Patient was advised for surgery. Patient and attendants insisting for Laparoscopic Surgery, therefore, as per patient and attendants' request, patient is referred to -
Dr. Dilip Verma (M.S.), Sarvoday Hospital, Dubey Colony, Mowa".
17. We have perused the prescription of the Shubhkamna Hospital, in which it is mentioned that the patient was advised for undergoing Open Surgery, but the deceased Smt. Varsha Baghel and the complainant No.1 themselves did not give their consent for the same and thereafter they went to O.P.No.1 Hospital.
18. In the instant case according to the O.P.No.1 and Report of Shubhkamna Hospital, Mowa, Rappur, it appears that both the procedure are accepted i.e. Laparoscopic Operation and Open Surgery. In Shubhkamna Hospital, the complainant No.1 & deceased Smt. Varsha Baghel, were advised for conducting Open Surgery, but the // 18 // deceased Smt. Varsha Baghel and her husband (complainant No.1) did not accept the advice for Open Surgery. It appears that Laparoscopic Operation of the deceased Smt. Varsha Baghel was conducted by the O.P.No.1 on the request of the complainant No.1 and deceased Smt. Varsha Baghel, therefore, it cannot be held that the O.P.No.1 committed any mistake by adopting Laparoscopic procedure.
19. The complainants submitted questionnaire to Dr. Sushma Verma for O.P.No.1 and she gave reply of the questions asked to her.
20. Dr. Sushma Verma in reply to question no.6 has stated that the blood supply was stopped in right ovary of Smt. Varsha Baghel, as occurred in Twisted Ovary. In reply to question No.11, Dr. Sushma Verma stated that after conducting colour Doppler of the patient, it was opined that she is having torsion. It is mentioned in the Sonography Report that "PV/PS of the patient was not possible because the patient was suffering acute pain therefore Vaginal Sonography was not done." Besides this, from the Clinical Examination and Sonography it came to know that she is having Ovarian Torsion. In reply to question no.12 Dr. Smt. Sushma Verma stated that Ovarian Torsion is an emergency, therefore, there is requirement of operation immediately otherwise there is danger to life of the patient. Only after conducting necessary tests, advice for conducting operation was given. Initially the patient was examined at Shubhkamna Hospital and diagnosis of Ovarian Torsion was made there. Dr. Meera Baghel (who // 19 // is relative of the patient) and Dr. Prachee Baranwal gave advise for operation and the advice given by them was found correct. The laparoscopy was conducted for confirming the torsion (Twisted) ovary. In reply to question No.19, Dr. Sushma Verma has stated that after inserting the Laparoscope in the abdomen, the diagnosis was made of Benign tumour (which is not a cancer) and the Gynecologists Dr. Sushma Verma, Dr. Meera Baghel and Dr. Prachee Baranwal were agreed. As the Benign Tumour can be occurred in both ovary (Bilateral) and in Laparoscopy, no symptom of Cancer was found, therefore, Laparotomy was not conducted. In reply to question No.21, Dr. Sushma Verma stated that the Doctor is having knowledge regarding this fact, therefore, the tumour of the patient was termed as Benign Tumours (which is not a cancer and OncoLogical Principle was also kept in mind. (Sample was removed in Endobag). In reply to question No.30, Dr. Sushma Verma stated that after operation C.A.125 Marker test is conducted when the Cancer is confirmed otherwise the above test is not done. In Biopsy Report, Mucinous Cystadenoma was come (which is not Cancer), therefore, C.A.125 Marker test was not conducted.
21. The complainants submitted questionnaire to Dr. Renuka Gahine for O.P.No.2 and she gave reply of the questions asked to her.
22. In reply to question No.3, Dr. Renuka Gahine stated that in the Gross Examination of the Left Ovary and the symptom, which was // 20 // mentioned, may be of Benign Tumour and may be of Cancer. In reply to question No.4, Dr. Renuka Gahine stated that on perusal of the slide, she expressed her opinion that there is possibility of Cysadenoma because it is a kind of Benign Tumour which is not spread in the entire body and only spread in that organ. In such type of Cancer, several time the slide of Benign Tumour and Malignant Tumour (cancer which spread in entire body) appears similar. In support of which Text Book Sternberg's Diagnostic Surgical Pathology Fourth Edition Volume 3, mentioned in page 2625 , Diagnostic Gynecologic and Obstetric Pathology Crum - Nucci - Lee Second Edition mentioned in Page 860 and 861 and WHO (World Health Organization) Classification of Tumours Pathology and Genetics Tumour of the Breast and Female Genital Organs Edited by Fattanch A. Tavassoli & Peter Devilee mentioned in page no.195, which is attached with written statement. In reply to question No.5, Dr. Renuka Gahine, stated that she wrote suggestive which itself means, that, in it second opinion is required. The Histopathology Report which is given, is for Surgeon from which they can understand the seriousness and possibility of the disease and take further action. The act of Clinical Correlation is of Surgeon. In the Histo Pathology Report, technical words are used, which is not for understanding for simple person or for the patient. In reply to question No.9, Dr. Renuka Gahine, stated that in point No.(7) it is clear that Five Wax Block and Five Slide were made properly. There was gap of five month to reach to another Pathologist, in which other symptoms were // 21 // came in the patient which supported the Cancer. As the complainants written that in the month of March, the Surgeon took new Biopsy which was tested in Lal Pathology Lab in which cancer was confirmed. Thus, it is clear that prior to my slide report, the symptoms and Report of Lal Pathology was helpful to the another Pathologist. When the deceased came to Pathologist Dr. Anita Borges of Raheja Hospital after five months, till then due to completely development of Clinical Symptoms and Sign and availability of Cancer Report of Lal Pathology along with document, help was obtained in Review Opinion and in this report possibility was expressed Cancer of Ovary is Metastatic, if it is correct then Malignant Cancer spread in the entire body and came to Ovary. It means primary tumor is not in Ovary. Dr. Anita Borges, Raheja Hospital Mumbai expressed possibility that Primary Tumour is in Colon or Appendix and it is expressed that Metastatic Tumour is in Ovary. From this it is clear that prior to above test, the cancer was spread and after spreading it came to the Ovary. Thus, the Prognosis was not affected. Thus, no negligent was committed by me.
23. In Histopathology Report dated 27.03.2014 of S.L. Raheja Hospital, Mumbai it is mentioned thus :-
"Microscopic Description :
I & II) Right ovarian tumour & piece of left ovary :
Mucinous adenocarcinoma in the ovary.
// 22 // Please rule out metastatic adenocarcinoma from colon, especially appendix, before considering this as an ovarian primary.
Section table 'C' shows benign ovarian tissue."
24. In Histopathology Report dated 15.10.2013 of Vibha Colour Sonography and Diagnostic Centre, Raipur(C.G.), it is mentioned thus :-
"MICROSCOPIC FEATURES :
Sections from both the nodular masses show well circumscribed nodular mass composed of cysts lined by single layer of mucin secreting columnar epithelium isolated cells in the pool of mucin separated by scanty fibrocollegenous streama adjacent parenchyma show hemorrhage and inframmatory granulation tissue. There is no evidence of stormal invasion.
IMPRESSION : S/O MUCINOUS CYSTADENOMA."
25. From bare perusal of Histopathology Report dated 27.03.2014 of S.L. Raheja Hospital, it appears that the Cancer was malign from colon. It appears the Cancer had came in Ovary from Colon, therefore, at the time of Biopsy, it was not possible for O.P.No.2 to give exact finding that tumour is benign or malignant tumour. The complainants did not file any expert opinion to prove that the procedure adopted by the O.P.No.1 and report given by O.P.No.2 is not proper. In Histopathology Report of the O.P.No.2, she mentioned in her report "IMPRESSION : S/O MUCINOUS CYSTADENOMA" and her report was suggestive, therefore, it was necessary for the complainant No.1 to take second opinion from any other expert Pathologist.
// 23 //
26. Therefore O.P.No.1 and O.P.No.2 did not commit any mistake for not properly diagnosing regarding Cancer. According to the report of the O.P.No.2 it appears that the sometime the slide of benign tumour and malignant tumour is looking similar. Therefore at the preliminary stage, it is not possible for the Pathologist to give opinion regarding type of tumour whether it is benign or malignant, therefore, it cannot be held that the O.P.No.1 and O.P.No.2 committed any medical negligence.
27. In Report of Sarvodaya Hospital and Maternity Centre, dated 16.03.2014, it is mentioned thus :-
"OBSERVATIONS :
LIVER Size (P) Shape (P) Echotexture (P) Any focal or Diffuse mass lesion : No mass No IHBRD PV : MEASURES : (P) mm GALL BLADDER :
Any Calculus / Mass lesion : No cal. No mass
CBD : MEASURES (P) mm
PANCREAS :
Size (P) Shape (P) Echotexture (P)
KIDNEYS : RIGHT KIDNEY MEASURES : 9.9 X 3.3 CM
LEFT KIDENY MEASURES : 8.7 X 4.3 CM
Cortico - Medullary Differentiation : Maintained.
Any Calculus / Hydronephrosis : No Cal. No HDN.
URINARY BLADDER :
Wall Thickness Size (P)
SPLEEN : : Size 7.7 cm Shape (P) Echotexture (P)
// 24 //
PROPSTATE : Size Shape Echotexture
Post void residual urine.
PELVIS :
UTERUS : Anteverted / Retroverted.
Size : 85 X 3.3 X 5.3 CM
Echtexture (P)
RIGHT OVARY : Not seen Size CM
LEFT OVARY : _________ Size CM
Exhotexture : A large septated cyste mass in
Hednexa
11.5 x 1.3 x 77 cm
CUL DE SAC : ___________ free fluid __________ +/ _________
Impression : A large mass above uterus most probably arising
From lt ovary s/o lt ovarian neoplasty
Advice - Clinical correlation & other finding Post Rt. Oopherectomy Status."
28. In Discharge Summary of Dr. Balabhai Nanavati Hospital, Mumbai dated 07.04.2014, it is mentioned thus :-
"DIAGNOSIS :
Final / Provisional : Ca Colon
Metastasis to the ovary."
29. The O.P.No.1 filed a literature "The Management of Adnexal
Torsion : Ovaries can be saved by Early Diagnostic Laparoscopy and Detorsion" in which is mentioned thus :-
"ABSTRACT :
... When adnexal torsion is suspected, the diagnosis can only be achieved by surgery. Arrangements should be made for laparoscopy as soon as possible.
// 25 // INTRODUCTION :
....(4) Delay in diagnosis and treatment of this condition may therefore have grave consequences, resulting in functional loss of the ovary........Although the Doppler studies have been reported as a promising tool for the diagnosis (11-15), the investigators recommended that Doppler flow studies should not delay surgical exploration in the setting of suggestive signs and symptoms.
DISCUSSION At the present time, there is no reliable method to confirm the diagnosis of the adnexal torsion pre-operatively....... (1) More rarely, delay or mistaken diagnosis may be responsible for potentially fatal thrombophlebitis or peritonitis..... Laparoscopy allows the definite diagnosis of adnexal torsion to be made as a first step.
REFERENCES :
........Although a short delay of several hours is considered by many authorities not detrimental to the future viability of the ovary we believe that early surgical intervention is detrimental for the preservation of the ovarian function especially in young women desiring for future fertility................... early laparoscopy is the treatment of choice depending on the patients systemic status, anesthesiologist and the operating room conditions. ..... The diagnosis of adnexal torsion can only be achieved by surgery. Arrangements should be made for laparoscopy as soon as possible.
ADNEXAL MASSES :
........ To date, there is no single pre-surgical evaluation, blood test, radiologic evaluation, or algorithm that will absolute identify an adnexal mass as malignant...... Neither CA 125 level, pelvic ultrasonography, nor peritoneal cytologic testing had sufficient diagnostic specifically to predict malignancy. Thus, for the most accurate diagnosis, the surgeon must next be able to laparoscopically evaluate and remove the mass of Cyst."
30. The O.P.No.2 has filed Literature "Second Opinion in Patho" in which it is mentioned thus :-
// 26 // "..... Unfortunately, medical studies over the last two decades have demonstrated that this gold standard is not consistently reliable. In fact, multiple studies have demonstrated discrepancy rates of up to 30% with an average of approximately 10%. A "discrepancy" happens when one pathologist renders a diagnosis and another pathologist looks at the same material and renders a different opinion.
Ovarian Cancer 12.7% Did Not Have Ovarian Cancer. The medical records and pathology slides of 339 woman diagnosed with ovarian cancer were reviewed. Forty - three women (12.7%) were discovered not to have ovarian cancer. (28 had other types of cancer and 15 had benign tumours."
31. In Bharat Ahuja Vs. M/s. Metro Heart Institute & Others, 2015 (4) CPR 848 (NC), Hon'ble National Commission has observed that "Doctor can choose any mode of treatment, which is an accepted practice."
32. In Chief Medical Officer & Anr. vs. Ramesh Chand Sharma, II (2015), CPJ 295 (NC), Hon'ble National Commission has observed thus :-
"9. A doctor need not be held negligent simply because something went wrong. The Hon'ble Apex Court, as well as this Commission in a catena of decisions has held that, the doctor is not liable for negligence because of someone else of better skill or knowledge would have prescribed a different treatment or operated in a different way. He is not guilty of negligence if he has acted in accordance with the practice accepted as proper by a reasonable body of medical professionals. We put reliance upon, the case of Dr. Laxman Balkrishna v. Dr. Trimbak, AIR 1969 SC 128, Hon'ble Supreme Court has held the above view. In the case of Indian Medical Association v. V.P. Shantha, III (1995) CPJ 1 (SC) = 1995 6 SCC 651, the Hon'ble Supreme Court has decided that the skill of a medical practitioner differs from doctor to doctor and it is incumbent upon the Complainant // 27 // to prove that a doctor was negligent in the line of treatment that resulted in the life of the patient."
33. In Dr. Laxman Balkrishna Joshi v. Dr Trimbak Bapu Godbole and another, AIR 1969 Supreme Court 128 (V 56 C 27), Hon'ble Supreme Court has observed thus :-
"11. The duties which a doctor owes to his patient are clear. A person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person when consulted by a patient owes him certain duties, viz., a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give or a duty of care in the administration of that treatment. A breach of any of those duties gives a right of action for negligence to the patient. The practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires : (cf. Halsbury's Laws of England, 3rd ed. Vol. 26 p. 17). The doctor no doubt has a discretion in choosing treatment which he proposes to give to the patient and such discretion is relatively ampler in cases of emergency..........."
34. In this context it is relevant to cite case of Kusum Sharma & ORS. Vs. Batra Hospital & Research Centre & ORS., I (2010) CPJ 29 (SC) in which the conclusions under different case laws on the subject of medical negligence have been summarized as under :-
'Para" 90" In Jacob Mathew's case (supra), conclusions summed up by the Court were very apt and some portions of which are reproduced hereunder:
// 28 // (1) Negligence is the breach of a duty caused by omission to do something which is 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. The definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P. Singh) referred to hereinabove, holds good. 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.
(3) 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.
// 29 // Para "94'. On scrutiny of the leading cases of medical negligence both in our country and other countries especially United Kingdom, some basic principles emerge in dealing with the cases of medical negligence. While deciding whether the medical professional is guilty of medical negligence following well known principles must be kept in view:
I. Negligence is the breach of a duty exercised 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.
II. Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.
III. The medical professional expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires.
IV. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
V. In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.
// 30 // VI. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which is honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence.
VII. Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence.
Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.
VIII. It would not be conducive to the efficiency of the medical profession if no Doctor could administer medicine without a halter round his neck.
IX. It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessary harassed or humiliated so that they can perform their professional duties without fear and apprehension.
X. The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals/hospitals or clinics for extracting uncalled for compensation.
Such malicious proceedings deserve to be discarded against the medical practitioners.
// 31 // XI. The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals."
35. The skill of a medical practitioner differs from doctor to doctor and it is incumbent upon the Complainants to prove that a doctor was negligent in the line of treatment that resulted in the life of the patient.
36. In the instant case, the complainants simply alleged that the O.P.No.2 gave false report and O.P.No.1 did not adopt Open Surgery Procedure and conducted Laparoscopic Operation in negligent manner, which is not acceptable. The O.P.no.1 specifically pleaded that she adopted the procedure which is prescribed for Surgery. The O.P.No.2 is a Senior Pathologist and at present she is working as Professor and Head of Department in Pathology Department, J.N.M. Medical College, Raipur. She is highly experience Doctor . She specifically mentioned in report that "IMPRESSION : S/O MUCINOUS CYSTADENOMA" and her report is suggestive, therefore, it cannot be held that O.P.No.1 and O.P.No.2 committed any medical negligence.
37. On the basis of above discussions, in the instant case we find that the complainants have not been able to prove that there was any medical negligence on the part of the O.P.No.1 Dr. Sushma Verma and O.P.No.2 Dr. Renuka Gahine. As there is no negligence on the part of // 32 // the O.P.No.1 & O.P.No.2 and the O.P.No.1 and O.P.No.2 have not committed any negligence, therefore, the complainants are not entitled to get any compensation from them.
38. Therefore, the complaint filed by the complainants against OPs, is liable to be dismissed, hence the same is dismissed. Parties shall bear their own costs.
(Justice R.S. Sharma) (Ms. Heena Thakkar) (D.K. Poddar) (Narendra Gupta) President Member Member Member /02/2016 /02/2016 /02/2016 /02/2016