State Consumer Disputes Redressal Commission
Mrs. Kasturba vs Dr. Vivek Kumar Garg & Others on 13 March, 2023
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UP C-1 Vikrant Khand 1 (Near Shaheed Path), Gomti Nagar Lucknow-226010 Complaint Case No. CC/36/2017 ( Date of Filing : 08 Feb 2017 ) 1. Mrs. Kasturba Lakhimpur Kheri ...........Complainant(s) Versus 1. Dr. Vivek Kumar Garg & Others Lucknow ............Opp.Party(s) BEFORE: HON'BLE MR. Rajendra Singh PRESIDING MEMBER HON'BLE MR. SUSHIL KUMAR JUDICIAL MEMBER PRESENT: Dated : 13 Mar 2023 Final Order / Judgement Reserved State Consumer Disputes Redressal Commission U.P. Lucknow. Complaint Case No.36 of 2017 Mrs. Kasturba w/o Mithilesh Gupta, R/o Village Krishna Nagar, Post, Sampurna Nagar, Tehsil Palia, District, Lakhimpur Kheri, U.P. ...Complainant. Versus 1- Dr. Vivek Kumar Garg, Consultant, Oncosurgeon, Lucknow Cancer Institute, Lucknow. 2- Lucknow Cancer Institute situated at 1, Manas Nagar, Jiamau, Lucknow, U.P. ...Opposite parties. Present:- 1- Hon'ble Sri Rajendra Singh, Member. 2- Hon'ble Sri Sushil Kumar, Member. Sri Satendra Nath Rai, Advocate for the complainant. Sri Brijendra Chaudhary, Advocate for the opposite parties. Date : 3.4.2023 JUDGMENT
Per Sri Rajendra Singh, Member- This complaint has been filed by the complainant under section 17 of the Consumer Protection Act, 1986 for following reliefs:-
1- To direct the opposite parties no 1 & 2 to pay Rs.5 Lacs with interest @ 18% per annum from 01.08.2016.
2- To direct the opposite parties no 1 & 2 to pay Rs.25 lakhs along with interest @ 18% per annum from 01.08.2016 towards mental trauma, physical pain and agony.
3- To direct the opposite parties no 1 & 2 to pay Rs.18 lakhs along with interest @ 18% per annum from 01.08.2016 as compensation to the complainant towards damages.
4- To direct the opposite parties to pay an amount of Rs.50,000 towards legal expenses incurred by the complainant.
5- To award exemplary damages against the opposite parties in favour of the complainant to the tune of Rs.1 lakh.
6- Such other further order as this Hon'ble commission may deem just and proper in the given facts and circumstances of the case in favour of the complainant.
The brief facts of the complaint case are that, that the complainant is a housewife. Opposite party no.1 is consultant Oncosurgeon at opposite party-2 (Cancer Institute) situated at 1, Manas Nagar, Jiamau, Lucknow. The complainant went to opposite party-2 for medical checkup and she was told for various tests like Haematology, Cytology, Biochemical, Urine, Skiagram etc. As per advice of the doctor, aforesaid tests were done at Raj Scanning Ltd. It is pertinent to mentioned that complainant was wrongly diagnosed by doctors at the aforesaid opposite party-2, Cancer Institute that she is suffering from Carcinoma Ovary. The complainant was admitted in the aforesaid Cancer Institute on 01.08.2016 and she was given Chemotherapy (first cycle of Chemotherapy (D1-D2) and thereafter discharged on 02.08.2016. The OPD registration number of the complainant is 17770. The first chemotherapy was given under the treatment of opposite party-1.
The complainant was informed on the next date, fixed for next cycle of Chemotherapy with blood report on 22.08.2016 that the consultant in charge of Oncosurgeon is opposite party-1, Dr. Vivek Kumar Garg. On 02.08.2016 the complainant was given estimated expenditure for her treatment at the Cancer Institute by opposite party-1, consultant in charge, of ₹ 240,000. Due to wrong treatment of chemotherapy, the opposite party-2 (Cancer Institute), the complainant's health severally deteriorated and her hair had fallen, her body turned black, she was not able to take food, she was not able to walk and she suffered bodily pain. The complainant was not able to do her routine daily work. Then She went to Rajiv Gandhi Cancer Institute and Research Centre, Sector-V, Rohini, Delhi. After diagnosis at the Rajiv Gandhi Cancer Institute and Research Centre complainant is diagnosed as a case of Tubercular Salpingoophritis. It is evident from the test report of Rajiv Gandhi Cancer Institute and Research Centre that complainant was given wrong treatment of chemotherapy for Tubercular Salpingoophritis at Lucknow Cancer Institute which is clear case of medical negligence.
After diagnosis of Tubercular Salpingoophritis at Rajiv Gandhi cancer Institute the complainant was referred to DOTS Centre for treatment of disease. At present the complainant is undergoing treatment of Tubercular Salpingoophritis at DOTS Centre - Krishna Nagar , Lakhimpur Kheri. The complainant was given wrong treatment at opposite party-2 under supervision of opposite party - 1, the consultant in charge Oncosurgeon. Due to wrong treatment at the opposite party - 2 cancer Institute, her hair had fallen and she suffered bodily pain and injury and her life is at great risk due to negligence of Doctor at the cancer Institute. The life of the complainant and her family was ruined by the negligence of respondent and the financial condition of the complainant family had worsened and they are at the verge of starvation and in the process they have lost everything they had. At opposite parties hospital that complainant spent more than ₹ 70,000. When the complainant went to Rajiv Gandhi cancer institute, she further spent about ₹ 150,000 /- for diagnosis and treatment.
The aforesaid wrong treatment at opposite party-2 resulted into pain, suffering and great risk of life which is clear case of medical negligence and is huge deficiency in service. The aforesaid wrong treatment at opposite party - 2 , has already resulted into huge financial loss, mental and bodily pain and harassment. The complainant has given legal notice through her counsel which was sent to the opposite party on 19.12.2016 to pay an amount of ₹ 25 lakhs along with 18% interest from 01.08.2016 as compensation for wrong treatment of chemotherapy and to pay an amount of ₹ 5 Lacs towards mental, physical pain and agony faced by the complainant on account of the aforesaid illegal treatment, medical negligence and issues deficiency in service, but no action has been taken by them till date. Therefore the component has filed this complaint case before this Hon'ble State Commission.
The opposite party no 2 has filed its written statement stating that the complainant is full of misleading facts and several material facts have been suppressed by the complainant. The answering respondent denies each and every statement, averment, allegation, contention made by the complainant that is inconsistent with, contradictory to whatever is stated hereinbelow and no statement, allegation, contention not specifically denied by the opposite party shall be deemed to have been admitted merely for want of traverse. The intricate questions of law and facts are involved in this case. The parties have to lead her/its evidence by examining the witnesses and the said Mrs. Kasturba are to be cross-examined by the party. The procedure under the Consumer Petition Act is summary in nature and complainant, if so advised, may file civil suit seeking the alleged relief. The complainant is full of misleading facts and several material facts have been suppressed by the complainant.
The complainant firstly came to Lucknow Cancer Institute on 23.07.2016 with the complaint of pain and distension of abdomen from two months. The complainant came with the pathology report dated 15.07.2016 prepared by Dr. AK Kapoor in which ADA (Adenosine Deaminase) was 26.0 U/L . It also says increased level of ADA are found in various forms of tuberculosis making it a marker for the same and haemogram report ESR found 55 the normal range of ESR is 0-20 . In urine examination pH was found acidic. The test report of CA-125 Ovarian Cancer Marker Serum was 518.50 U/MI (ref range 35.00) which was found on higher side. The MRI of lower abdomen report dated 16.07.2016 prepared by Ojaswi Diagnostic showed Right Ovarian Complex Cyst with Gross Ascites.
Apart from the above mentioned all the reports the answering party advised for blood investigation/ urine examination/ECG/X-ray chest PA on 30.07.2016, which were found in range. The patient was advised USG/ CT Guided Ascites tapping on 23.07.2016 and sent for Cytology Approx 1400 ml straw coloured fluid aspirated under USG guidance on 26.07.2016, in cytology report it is found suspicious but not conclusive for malignancy.
On 30.07.2016 the respondent Dr discussed with the relatives about for possible disease process in view of:
(i) Raised CA-125
(ii) Complex Adnexal Mass
(iii) Gross Ascites
(iv) Cytology Suspicious for Malignancy
(v) Negative ADA with possible treatment i.e., Chemotherapy/Surgery/ Diagnostic Laparoscopy and proceed with side effects and cost benefit ratio. As per Dr. Lal Pathology Lab dated 21.07.2016 increased level clinical use of serum CA-125 are seen in various indications except tuberculosis. As routine all the matters are discussed in Tumour Board, so the case of complainant was also discussed in the board on 01.08.2016 and finally it was decided to start chemotherapy.
The husband of the complainant Mr Mithlesh Gupta freely consented by signing consent form on 01.08.2016, about the drugs, it's a side effect and cost, and offer was also given to get the opinion from other Doctor. In medical examinations the symptoms of tuberculosis and Ovarian Malignancy are most similar but in the present matter the reports showed that is satisfied was suspicious for malignancy, CA-125 was on higher side, also there was no previous history of tuberculosis in patient. An option for surgery and/or diagnostic laparoscopy was available but in presence of gross ascites there will be a chance of continuously leak of a satisfied from post-operative site or from operative wound, thus advised for chemotherapy.
The patient has never come after the first chemotherapy; rather it was advised after the first chemotherapy that if no changes found the patient and attendants will be counselled for Exploratory Laparotomy. The treatment given to the complainant was based on medical reports, it can't be said that the wrong treatment was given by the respondent Dr full it is submitted that the complainant tried to mislead the facts and evidences mentioned in the complaint case. Having the discharge summary of Rajiv Gandhi Cancer Institute dated 05.09.2016 it is crystal clear that following investigation were carried out -
1. MRI Abdomin and pelvis: should write adnexal complex cyst with ascites omental thickening.
2. Whole body PET CT scan: showed hyper metabolic and enhancing right adnexal solid nodular lesion possibly primary malignant pathology metastatic disease involving Abdomino pelvic lymph node moderate ascites, peritoneal deposits, omental thickening with the standing sub diaphragmatic and bilateral mammary lymph node.
3. USG guided ascites tapping and cytology: adenocarcinoma
4. USG guided biopsy: granulomatous inflammation.
All the investigations as mentioned above diagnosed it as ovarian cancer and even subtype to it as Eddie no carcinoma only USG guided biopsy showed granulomatous inflammation, which could not be done at the Lucknow Cancer Institute as omental thickening could not be made out on USG/MRI.
It is submitted that as cytology/biopsy were different at RGC I so after discussing everything Exploratory Laparotomy with Omentectomy plus right Ophrectomy was done on 30.08.2016. Even during surgery it was not confirmed on gross examination, so too frozen section study from right ovary and omental was done. The report of which was benign. The complainant paid ₹ 2100/- for professional fee given to the respondent Dr and ₹2400/- for hospitalisation and chemotherapy. The drugs were purchased by the complainant himself. All other facts and as alleged by the complainant are hypothetical, imaginary and complete afterthought and hence denied. The complainant is attributing irrelevant motives against the answering opposite party which is being strongly denied by the answering opposite party. While reiterating the contents of previous/remaining paragraph of this reply.
The medical treatment to the patient was given after going through the medical reports prepared by the expert doctors and all the relevant facts would be evident from a bare perusal of the hospital records and thus there is no question of any medical negligence having been committed by the treating doctors and towards the patient and accordingly all the ill founded allegations of the complainant of purported medical negligence are strongly and emphatically denied as incorrect. The assertion of the complainant is informed and wrong presumption of facts has been drawn by him. It is submitted that the answering opposite party has duly discharged his duty of reasonable care and skill and there is notion of any medical negligence having been committed by him, hence any relation in that regard strongly denied. Inter alia the answering opposite party reiterated that there was no medical negligence because:
(a) That the complainant was properly medically treated as per medical norms.
(b)That as per the clinical condition and the result of the various tests performed the actual condition of the patient was informed to the patient's attendants immediately and after their free consent the treatment was carried out.
(c)That, after the first chemotherapy the complainant did not turn up, and thus the answering respondent could not proceed as per the Tumour Board Discussion.
The answering opposite party duly exercised their reasonable degree of care and skill while diagnosing and administering treatment on the patient/complainant. There is absolutely no question of any deficiency in service whatsoever. Further, no such a legal notice was received to the answering respondent and thus no reply could be made. The demand of compensation of ₹ 25 lakhs and ₹ 5 Lacs is also not sustainable in the eye of law, as the answering respondent and never guaranteed for any treatment as per medical norms which was based on medical examination reports. The complainant has miserably failed to make out any case of medical negligence against the answering opposite party, hence as such the complaint petition being devoid of any merit deserves to be rejected. It is resubmitted that this Hon'ble Commission may graciously pleased to dismiss the complaint petition against the answering opposite party.
So in this case first we have to see that what the ovarian cancer is and how it is determined.
What is ovarian cancer?
Ovarian cancer occurs when abnormal cells in your ovaries or fallopian tubes grow and multiply out of control.
Ovaries are part of the female reproductive system. These two round, walnut-sized organs make eggs during your reproductive years.
Who gets ovarian cancer?
Ovarian cancer affects women and people assigned female at birth (AFAB). It's slightly more common in Native American and white populations than in people who are Black, Hispanic or Asian.
In addition, people of Ashkenazi Jewish descent are much more likely to have a BRCA gene mutation, placing them at a higher risk for breast and ovarian cancer.
Ovarian cancer accounts for 1% of all new cancer cases in the U.S. The lifetime risk of developing ovarian cancer is approximately 1 in 78.
SYMPTOMS AND CAUSES Warning signs and risk factors of ovarian cancer.
What are the symptoms of ovarian cancer?
Ovarian cancer can develop and spread throughout your abdomen before it causes any symptoms. This can make early detection difficult. Ovarian cancer symptoms may include:
• Pelvic or abdominal pain, discomfort or bloating.
• Changes in your eating habits, getting full early and losing your appetite.
• Vaginal discharge or abnormal bleeding, especially if the bleeding occurs outside of your typical menstrual cycle or after you've gone through menopause.
• Bowel changes, such as diarrhea or constipation.
• An increase in the size of your abdomen.
• Peeing more often (frequent urination).
If you develop any of the symptoms listed above, schedule a visit with a healthcare provider.
What causes ovarian cancer?
The exact cause of ovarian cancer isn't yet known. But some people have a slightly higher risk of developing the condition. Ovarian cancer risk factors include:
• Being over the age of 60.
• Obesity.
• A family history of ovarian cancer (others in your biological family have had the disease) or have inherited a gene mutation (BRCA1 or BRCA2) or Lynch syndrome.
• Never being pregnant or having children later in life.
• Endometriosis.
There's also an increased risk of developing ovarian cancer as you grow older.
How does ovarian cancer spread?
If ovarian cancer spreads, it usually does so from your pelvis to your lymph nodes, abdomen, intestines, stomach, chest or liver.
DIAGNOSIS AND TESTS How is ovarian cancer diagnosed?
Despite years of research, experts haven't yet developed a successful ovarian cancer screening test. For this reason, the condition is often difficult to diagnose in the early stages.
If your healthcare provider suspects ovarian cancer, they'll ask about your symptoms and perform a pelvic exam. During the exam, they'll check for any abnormal growths or enlarged organs.
They may recommend additional tests, including:
Imaging tests Providers may use several imaging tests, including:
• Pelvic ultrasound.
• MRI (magnetic resonance imaging).
• CT scan (computed tomography).
• PET scan (positron emission tomography).
Blood tests Blood tests look for a substance called CA-125. High levels of CA-125 in your blood can be a sign of cancer. However, CA-125 levels can be normal, even when cancer is present, and higher in many conditions that aren't cancer. Because of this, providers use blood tests in combination with other tests to diagnose ovarian cancer.
Surgical evaluation Providers can diagnose ovarian cancer during surgery. Typically, if they find abnormal growths, they'll remove them during the same procedure.
Laparoscopy During laparoscopic surgery, a surgeon places a thin camera (laparoscope) through a small cut (incision) made in your abdomen. Using the scope as a guide, along with additional ports to hold instruments, the surgeon can assess the cancer, perform staging biopsies and, in some circumstances, remove ovarian tumors.
What are the stages of ovarian cancer?
There are four stages of ovarian cancer. In this cancer staging system, the least severe is the lowest number. The more serious the condition, the higher the number.
• Stage I: This stage is divided into three sub-stages (Stage IA, Stage IB and Stage IC). In the first sub-stage, cancer is only in one ovary or one fallopian tube. Stage IB has cancer in both ovaries or fallopian tubes. In Stage IC, cancer is in both ovaries or fallopian tubes and is found outside of your ovary (on the outside of the organ itself or in the space around the ovary, called the peritoneal cavity).
• Stage II: Stage II is also divided into a few additional stages. In Stage IIA, the cancer is no longer only in your ovary, but has also spread to your uterus. In Stage IIB, the cancer has spread to other nearby structures in your pelvis.
• Stage III: This stage includes three sub-stages. In Stage IIIA, the cancer has spread beyond your pelvis to your abdomen (microscopically) or within lymph nodes. The second sub-stage (Stage IIIB), the tumor is up to 2 centimeters in size and has spread beyond your pelvis or within your lymph nodes. In Stage IIIC, the cancer has moved outside of your pelvis area and is larger in size (more than 2 centimeters) or may be within your lymph nodes. At this point, it could impact other organs, like your liver and spleen.
• Stage IV: Stage IV cancer is the most severe. In this stage, the cancer has spread to the inside of organs such as your liver or spleen. In Stage IVA, it's found near your lungs, and in Stage IVB, the cancer has spread to the lymph nodes of your groin or into your chest.
Staging is important because it helps your healthcare provider design a tailored treatment plan for you. Your healthcare provider will talk with you about your treatment options.
MANAGEMENT AND TREATMENT How is ovarian cancer treated?
The goal in treating cancer is to remove as much, if not all, cancer from your body as possible. Common ovarian cancer treatments include:
• Surgery. This typically involves the removal of your reproductive organs and any organ that has cancer on it. Your surgeon may use laparoscopy (a minimally invasive surgery) or laparotomy (open surgery that requires an abdominal incision).
• Chemotherapy. Your provider may recommend chemotherapy either before or after surgery. Chemotherapy are drugs designed to target and kill cancerous cells. Your provider may give you chemotherapy intravenously (through a vein) or orally (in pill form).
• Targeted therapy. This cancer treatment uses drugs to identify and attack cancer cells. Targeted therapy changes the way cancer cells grow and divide.
• Hormone therapy. Some ovarian cancers use hormones to grow. This type of therapy blocks hormones, slowing or stopping the growth of cancer.
• Radiation therapy. Providers rarely use radiation therapy for treatment of ovarian cancer.
After you've completed ovarian cancer treatment, your healthcare provider will want to see you regularly for observation. You may have routine appointments to check and make sure the cancer hasn't returned over time. During these appointments, your provider may go through any possible symptoms and do an exam. Be mindful of any symptoms you may be having and tell your provider about them. Sometimes, your provider may order imaging tests, typically a CT scan.
PREVENTION Can I prevent ovarian cancer?
There's no way to prevent ovarian cancer completely. But knowing your biological family history can help you prepare for any heightened risk of developing ovarian cancer.
If you have a genetic mutation such as BRCA mutation, your healthcare provider may recommend risk-reducing surgery to remove your ovaries and tubes before they become cancerous. If you're not sure if you have a BRCA or another mutation, ask your healthcare provider about genetic testing.
What can I expect if I have ovarian cancer?
After you've received ovarian cancer treatment, your healthcare provider will still see you for regular appointments. During these visits, they'll check on any symptoms you may have and discuss any concerns. It's important to pay close attention to your body and let your provider know if anything unusual is happening. Observation is key after ovarian cancer treatment.
What's the ovarian cancer survival rate?
The overall five-year survival rate for ovarian cancer is 49%. That means that approximately 49% of people diagnosed with ovarian cancer are alive five years from diagnosis.
It's important to understand that survival rates are just estimates. They can't tell you how long you'll survive or predict the success of your treatment. If you have specific questions about ovarian cancer survival rates, talk with your healthcare provider.
LIVING WITH If you develop signs of ovarian cancer, such as unusual lumps, pain or bloating in your abdomen, schedule a visit with a healthcare provider.
If you've received an ovarian cancer diagnosis, you may want to ask your healthcare provider questions such as:
• What's the location of the tumor?
• Has the cancer spread? If so, how far?
• What treatments do you recommend?
• How long will my treatment take?
• Will I be able to work during my treatment?
• Are there ovarian cancer resources available?
A cancer diagnosis is scary, no matter the type. If you or a loved one has ovarian cancer, you may also feel sad, frustrated or hopeless. Your healthcare provider can help you during this trying time. Ask about resources or support groups (local or online). Getting in touch with others who are going through the same thing can help you process the difficult emotions that often come with a cancer diagnosis.
When the complainant went to Rajiv Gandhi Cancer Institute and Research Centre, it is made clear that due to wrong treatment at the respondent - 2 Cancer Institute her hair had fallen and she suffered body pain and injury and her life's great risk due to negligence of Doctor at the Institute. Here it has been diagnosed that she was suffering from Tubercular Salpingoophritis and not from ovarian cancer. Now we are to see that what the Tubercular Salpingoophritis is?
Introduction of Salpingo-Oophoritis In the female reproductive system, the ovary is an organ where the ovum is produced. The ovum goes down the fallopian tube into the uterus when released. The inflammation of the uterine appendage, particularly on the fallopian tubes is the disease called Salpingo-Oophoritis. It develops when staphylococci, streptococci, colon bacilli, gonococci, tubercle bacilli or other pathogens enter into fallopian tubes and the ovaries. A recent scientific report revealed that the complement component C8G is associated with Salpingo-Oophoritis and the related pathway is lectin-induced complement pathway.
Symptom • Fever: a febricula, temperature increases to 38-38.5°C • Severe lower abdominal pain: acute process pains in the lower part of a stomach, painful at palpation. Severe pain in the waist • Heavy vaginal bleeding during menstrual cycle • Lower back pain • Malaise • Polyuria (frequent urination) • Vomiting • Perspiration • Causes Young, sexually active women are more likely to catch Salpingo-Oophoritis. These infectious pathogens invade the fallopian tube and the tubular walls become infiltrated. The fallopian tubes and ovaries coalesce into a single inflammatory formation. The following are the conditions that lead to Salpingo-Oophoritis.
• The sexual partner has sexually transmitted disease • Lacking personal hygiene which makes the entrance of the infectious pathogen possible • Infections of the cervix also lead to tubo-ovarian abscess formation.
Risk Factor • Unprotected sexual intercourse • Multiple sexual partners • High-risk sexual behavior • Immunosuppression • Recent instrumentation of genital tract • Gynecologic malignancy (particularly in postmenopausal women) Diagnosis Oophoritis needs quick treatment to prevent health complications and preserve fertility. The seemingly mild infections can lead to severe damages to the reproductive system. The signs and symptoms are usually invisible. Therefore, the diagnosis of Oophoritis is extremely important.
Salpingo-Oophoritis may be identified by • Knowledge of the patient's family history, particularly the family members who's ever caught the disease.
• Detailed knowledge of the signs and symptoms of the patient • Pelvic examination • Vaginal discharge test • Pelvic ultrasound - Ultrasound is safe and painless. It produces the images of the fallopian tubes and ovaries.
• Colpocentesis - a medical procedure conducted by a needle entering the upper part of the vagina. The needle presses the tube and ovaries for extracting the fluid. The fluid is used to diagnosing the infecting pathogen.
• Laparoscopic examination - a technique in which insertion of a tiny camera is needed. There is a light at the tip of the camera. It provides a clear view of the pelvic organs when the camera enters the abdominal cavity.
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What causes this condition and who's at risk?
Oophoritis is usually the result of sexually transmitted infections (STIs) like chlamydia and gonorrhea. You can reduce your risk by practicing safe sex with all partners.
Bacteria can also get into the reproductive tract through your cervix. This can happen:
• if an intrauterine device (IUD) is inserted incorrectly • during an abortion • after a miscarriage • during childbirth It isn't clear what causes autoimmune oophoritis. In rare cases, this form can result in primary ovarian insufficiency (POI).
How is it diagnosed?
After reviewing your symptoms and medical history, your doctor will perform a physical exam. They'll also run tests to determine if there's an underlying infection or if there are any abnormalities near your ovaries and fallopian tubes.
These tests include:
• Blood and urine tests. These tests are used to determine your white blood cell count, as well as look for markers of inflammation. They also help your doctor rule out other diagnoses, such as cystitis.
• Pelvic exam. This allows your doctor to look for PID symptoms.
• Pelvic ultrasound. This imaging test is used to view your internal organs. Your doctor may perform both a transabdominal and a transvaginal ultrasound to get as much information as possible about your pelvic region. They'll also assess the size of your ovaries and check for cysts or abscesses.
• Laparoscopy. If your doctor suspects salpingo-oophoritis, they'll use this surgical test to view your fallopian tubes. To do this, they'll insert a slender, lighted telescope through an incision in the lower abdomen. This will allow them to view your pelvic organs and remove any blockages.
What treatment options are available?
The underlying cause will determine your treatment options. For example, if you have an active STI, your doctor will prescribe antibiotics. Abscesses may also be treated with antibiotics.
In some cases, surgery may be needed to drain infected abscesses. Surgery may also be used to remove blockages or pelvic adhesions.
Women who have autoimmune oophoritis may benefit from hormone replacement therapy. They may also need specific treatments for their underlying condition.
If you're experiencing pain, talk to your doctor about your options for relief. For some women, over-the-counter pain relievers and applied heat are enough to reduce symptoms. Others may benefit from stronger pain medications.
Are complications possible?
If left untreated, this condition can cause extensive damage to the ovaries and fallopian tubes. Fallopian tube damage can increase your chance of having an ectopic pregnancy.
Sometimes, fallopian damage can result in infection. If the infection is left untreated, and an abscess bursts, it can lead to sepsis. Sepsis can be life-threatening.
Pregnancy and fertility If treated early, infectious oophoritis can be treated before it has an effect on your fertility. If treatment is delayed, your fertility may be compromised by scar tissue and blockages. These can sometimes be removed surgically, allowing you to conceive.
If your doctor is unable to remove these obstructions, they may recommend in vitro fertilization (IVF). IVF bypasses the fallopian tubes, increasing your chances of conception. If both ovaries are damaged, working with an egg donor may provide a way for you to become pregnant.
There isn't a cure for autoimmune oophoritis or its complication, POI. This is a challenging diagnosis, and it can have a negative impact on your fertility. Talk to your doctor about your ability to conceive. They can walk you through your options and advise you on your next steps.
What's the outlook?
If treated early, infectious oophoritis can be cleared and conception may be possible. Left untreated, oophoritis can cause severe damage to your reproductive organs. Practicing safe sex can help reduce your risk. You should also see your gynecologist for regular exams. They can watch for any changes, increasing the likelihood of early diagnosis.
So it is clear that Salpingo-Oophoritis may be diagnosed through the procedure as mentioned here in above. In the present case the opposite party believed mainly on the result of increased CA - 125. Now we have to see that whether increased CA - 125 is the ultimate test for confirming ovarian cancer.
A CA 125 test measures the amount of the protein CA 125 (cancer antigen 125) in the blood.
This test may be used to monitor certain cancers during and after treatment. In some situations, the test may be used to look for early signs of ovarian cancer in people with a very high risk of the disease.
A CA 125 test isnt accurate enough to use for ovarian cancer screening in general because many conditions can increase the level of this protein.
Conditions that can cause an increase in CA 125 include many that aren t cancerous, such as menstruation and uterine fibroids. Certain cancers may also cause an increased level of CA 125, including ovarian, endometrial, peritoneal and fallopian tube cancers.
Why it s done Your health care provider may recommend a CA 125 test for several reasons:
• To monitor cancer treatment. If you have ovarian, endometrial, peritoneal or fallopian tube cancer, your provider may recommend a CA 125 test on a regular basis to monitor your condition and treatment.
But such monitoring hasn t been shown to improve the outcome for those with ovarian cancer, and it might lead to additional and unnecessary rounds of chemotherapy or other treatments.
• To screen for ovarian cancer if youre at high risk. If you have a strong family history of ovarian cancer or you have an inherited gene that increases the risk of ovarian cancer, your provider may recommend a CA 125 test as one way to screen for this cancer.
Some providers may recommend CA 125 testing combined with transvaginal ultrasound every 6 to 12 months for those at very high risk.
However, some people with ovarian cancer may not have an increased CA 125 level. And no evidence shows that this screening decreases the chance of dying of ovarian cancer. An elevated level of CA 125 could prompt your provider to put you through unnecessary and possibly harmful tests.
• To check for cancer recurrence. Rising CA 125 levels may indicate that ovarian cancer has come back after treatment. Regular monitoring of CA 125 has not been shown to improve outcomes for those with ovarian cancer and may lead to additional and unnecessary rounds of chemotherapy or other treatments.
If your health care provider suspects that you may have ovarian cancer or another type of cancer, you may undergo additional tests. Other tests that may be helpful in evaluating these cancers include a transvaginal or pelvic ultrasound, serum human epididymis protein 4 (HE4), CT, and MRI. A procedure to remove a sample of cells for testing may be needed to confirm the diagnosis.
How you prepare If your blood is being tested only for CA 125, you can eat and drink as usual before the test.
What you can expect For a CA 125 test, a member of your health care team takes a sample of blood by inserting a needle into a vein, usually in the hand or arm. The blood sample is sent to a lab for analysis. You can return to your usual activities immediately.
Results The results of your CA 125 test will be provided to your health care provider, who will discuss the results with you. Ask your provider when you can expect to know your results.
If your CA 125 level is higher than expected, you may have a condition that isn t cancerous, or the test result could mean that you have ovarian, endometrial, peritoneal or fallopian tube cancer. Your provider may recommend other tests and procedures to determine your diagnosis.
If you ve been diagnosed with ovarian, endometrial, peritoneal or fallopian tube cancer, a decreasing CA 125 level often indicates that the cancer is responding to treatment. A rising level may indicate a return or continued growth of the cancer.
A number of conditions that aren t cancerous can cause an elevated CA 125 level, including:
• Endometriosis • Liver disease • Menstruation • Pelvic inflammatory disease • Pregnancy • Uterine fibroids So it is clear that this test is not as test as said in the above article. In the plaintiff the opposite party stated that they referred the matter to the Tumour Board. This board is a division of Raj Scanning Ltd. These doctors belong to the opposite party, Lucknow Cancer Institute . It is not an independent body of some other doctors but the doctors are the same working in the Lucknow Cancer Institute. The report of tumour board scanned here in below:
After the advice of this board they started with therapy. We have also seen the Cytology report which clearly says , " Cytology is suspicious but not conclusive for malignancy." It clearly means that malignancy was not confirmed and CA - 125 is also not an absolute test for proving ovarian cancer. It should be co-related with other tests. No opinion of any independent cancer is to have been taken not any specialised oncologist has been consulted through video conferencing. After going to Rajiv Gandhi Institute, it became clear that she was not suffering from ovarian cancer but suffering from Salpingo-Oophoritis. It shows the negligence and deficiency in service on the part of the opposite party. Such an step like chemotherapy should be taken after due consideration with specialised doctors of this branch and also confirming that the lady was suffering from ovarian cancer. Due to chemotherapy her hair had fallen and she suffered body pain and injury. If she would not have left the opposite party hospital she might lost his life. So we find that the negligence and deficiency in service on the part of the opposite party.
Both of these are very much similar but there are tests to confirm from which diseases she suffering. This can be done with the help of special tests mentioned for each disease because increased CA - 125 is not the conclusive proof of ovarian cancer. The opposite party did not take opinion from any other higher specialised branch but they do the opinion of their own created Tumor Board of Lucknow Cancer Institute which is under opposite party. Now we come to see that what is the relation of Dr and patient.
First of all we have to see the doctor - patient relationship (DPR). This relationship is very important for all types of treatment of a patient by a doctor.
"Medicine is an art whose magic and creative ability have long been recognized as residing in the interpersonal aspects of patient-physician relationship."
Hall et al.,1981 A doctor-patient relationship (DPR) is considered to be the core element in the ethical principles of medicine. DPR is usually developed when a physician tends to a patient's medical needs via check-up, diagnosis, and treatment in an agreeable manner. Due to the relationship, the doctor owes a responsibility to the patient to proceed toward the ailment or conclude the relationship successfully. In particular, it is essential that primary care physicians develop a satisfactory DPR in order to deliver prime health care to patients.
The physician-patient relationship is a foundation of clinical care. Physician-patient relationships can have profound positive and negative implications on clinical care. Ultimately, the overarching goal of the physician-patient relationship is to improve patient health outcomes and their medical care. Stronger physician-patient relationships are correlated with improved patient outcomes. As the relationship between physicians and patients becomes more important, it is essential to understand the factors that influence this relationship.
Frameworks for Physician-Patient Relationships Throughout history there has been much debate regarding the "ideal" physician-patient relationship. In 1992, Ezekiel and Linda Emanuel proposed four models for the physician-patient relationship: the paternalistic model, the interpretive model, the deliberative model, and the informative model. These models differ based on their understanding of four key principles: the goals of physician-patient interactions, the physician's obligations, the role of patient values, and the concept of patient autonomy.
Factors that Influence the Physician-Patient Relationship Although there are several factors that influence physician-patient relationships, the dynamic shared and sense of trust between physicians and patients are two critical components to their overall relationship.
Dynamic Between Physicians and Patients The dynamic between physicians and patients refers to the communication patterns and the extent to which decision making is shared between both parties. Effective physician-patient communication is an integral part of clinical practice and serves as the keystone of physician-patient relationships. Studies have shown the approach taken by physicians to communicate information is equally important as the actual information that is being communicated. This type of communication incorporates both verbal and nonverbal interactionsbetween physicians and patients.iEffective communication has been shown to influence a wide array of outcomesincluding: emotional health, symptoms resolution, function, pain control, and physiologic measures such as blood pressure levels. When miscommunication occurs, it can have severe negative implications in clinical caresuch as impeding patient understanding, expectations of treatment, treatment planning, decreasing patient satisfaction of medical care, and reducing levels of patient hopefulness.
In addition to having effective communication, it is important that medical decisions stem from a collaborative process between physicians and patients. Decision makingis a process in which patients should be involved from the very beginning, and the result is a decision which reflects the physician's medical knowledge as well as the patient's values and beliefs.ivCollaborative communication and decision making have been correlated with greater patient satisfaction and loyalty. Working from a collaborative framework along with effective physician-patient communication can also strengthen a physician's ability to utilize a personalized health care model through patient empowerment.v Trust Between Physician and Patients "....patients must be able to trust doctors with their lives and health, and that maintaining trust is one core guidance for physicians"
Birkhäuer et al, 2017 Trust is a fundamental characteristic of the physician-patient relationship. Patients must trust that their physicians will work in their best interests to achieve optimal health outcomes. Patients' trust in their physicians has been demonstrated to be more important than treatment satisfaction in predictions of patient adherence to recommendations and their overall satisfaction with care. Studies have also shown that trust is additionally a strong predictor of a patient continuing with their provider. Trust extends to many different aspects of the physician-relationships including, but not limited to: physicians' willingness to listen to patients, patients' believing that physicians value patient autonomy and ability to make informed decisions, and patients feeling comfortable enough to express and engage in dialogue related to their health concerns.
Physician-Patient Relationships Influence on the Future of Healthcare The idea of viewing physician-patient relationships as a core element of quality health care is not something new, however understanding and assessing the factors that influence this relationship is just beginning. Effective physician-patient communication has been shown to positively influence health outcomes by increasing patient satisfaction, leading to greater patient understanding of health problems and treatments available, contributing to better adherence to treatment plans, and providing support and reassurance to patients. Collaborative decision making enables physicians and patients to work as partners in order to achieve a mutual health goal. Trust within all areas of the physician-patient relationship is a critical factor that influences communication between both parties. As health care transforms into a more personalized and patient-centered model, the physician-patient relationship will significantly shape health outcomes. The personalized health care model encourages collaboration among physicians and patients in order to create shared health goals and the cultivation of a health plan to address identified problems. By understanding the factors that influence patient-physician relationships, in the future, health care providers will be able to address some of the barriers that prevent the adoption of more personalized approaches to health care.
Now let us see the oath taken be a doctor before entering the nobel profession of the Medical World. The tradition in medical school includes taking the Hippocratic Oath usually at graduation. The purpose of this review is to examine what that oath has been, what forms it currently has, and the implications for physicians in today's healthcare environment. The changes in health economics affect physicians as they try to follow the oath's allegiance to the individual patient's needs. At times, this goal conflicts with the perspective of the financial world's controls of insurance companies and medical groups and institutions. This difference of the physicians' ethical perspectives from the business leaders regarding the philosophy of the value of the individual's health and life may be related to some aspect of physician burnout.
Many populations in the world know of the Hippocratic Oath for physicians as they begin the journey to care for patients. In this current era of medicine the frequency of students taking the oath has increased to nearly every one compared to the early twentieth century; however, few medical students and physicians actually know that the translations of the ancient words have become less complete, as well as quite varied from the classical translations. With more and more medical students taking an oath, the content actually has been simultaneously thinned. Certainly, the part addressed to faith in the Greek deities, in whom the ancient physicians believed, does not exactly apply for different locations and religions. It does honor the history of medicine and the bond with principles of the selfless tradition of healing. Now the act of saying the oath with peers has been viewed as a process of getting the diploma from medical school rather than a devoted allegiance to the purpose of medical education, namely, the best care of each patient by a competent physician. A true physician focuses his or her care of each patient not only on the use of skilful and current techniques but also on the recognition of the unique needs and welfare of the patient. This professional devotion of the compassionate physician to the patient may be eroded as the concept of the oath faces challenges from the increasing demands and restrictions by corporate entities. The years of education and training lead to the agreement with a code of ethics in medicine that emphasizes behavior to earn the trust of patients. Some of the burnout of physicians may indicate the loss of autonomy and the need to free physicians to return to the core content of the oath, i.e., to uphold the highest standards of care for the safety and health of each patient.
As per guidelines of MCI, Every member should get it framed in his or her office it should never be violated in its letter and spirit.
"I solemnly pledge myself to consecrate my life to service of humanity.
• Even under threat, I will not use my medical knowledge contrary to the laws of Humanity.
• I will maintain the utmost respect for human life from the time of conception.
• I will not permit considerations of religion, nationality, race, party politics or social standing to intervene between my duty and my patient.
• I will practice my profession with conscience and dignity.
• The health of my patient will be my first consideration.
• I will respect the secrets which are confined in me.
• I will give to my teachers the respect and gratitude which is their due.
• I will maintain by all means in my power, the honour and noble traditions of medical profession.
• I will treat my colleagues with all respect and dignity.
• I shall abide by the code of medical ethics as enunciated in the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations 2002.
I make these promises solemnly, freely and upon my honour."
Whether this oath has been complied with properly by the doctor. We know that the human body is a very complex body. The doctor spent years to study the course of MBBS/MD/MS and any other specialised fields . Despite of all the facts they should be cautious during treatment of a patient because it is the patient who paid them for their livelihood. It is the utmost and noble duty of a doctor to adhere with the oath taken by him.
So it is very important to maintain trust between the patient and the concerned Doctor. The doctors should also adhere to their oath taken by them when entering into this noble profession.
The complexity of the human body and the uncertainty involved in the medical procedure are of such great magnitude that it is impossible for a Doctor to guarantee a successful result; and the only assurance that he can give, or can be understood to have given by implication is that he is possessed of requisite skill in that branch of profession which he is practising and while undertaking the performance of the task entrusted to him, he would be exercising his skills with reasonable competence. An ordinary physician or surgeon is not expected to be either a clodhopper or feckless practitioner of profession, as much as, he is not expected to be a paragon, combining qualities of polymath or prophet as in the realm of diagnosis and treatment, there is ample scope for genuine difference of opinion; and a Doctor cannot be treated as negligent merely because his conclusion differs from that of other persons in the profession, or because he has displayed less skill or knowledge than others would have shown. The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of, if acting with ordinary care. Furthermore, a golden principle of law has been laid down by the Honble Apex Court in Jacob Mathew Vs. State of Punjab, (AIR 2005 SC 3180) that no sensible professional would intentionally commit an act or omission which would result in loss or injury to the patient as the professional reputation of the person is at stake. A single failure may cost him dear in his career. Even in civil jurisdiction, the rule of res ipsa loquitor is not an universal application and has to be applied with extreme care and caution to the cases of professional negligence and in particular that of the doctors, else it would be counter productive. Simply because a patient has not favourably responded to a treatment given by a physician or a surgery has failed, the doctor cannot be held liable per-se by applying the doctrine of res ipsa loquitor. Yet, another golden principle of law has been laid down by the Honble Apex Court in Indian Medical Association Vs. V.P. Santhas III (1995) CPJ 1 (SC) at para 37 that "it is no doubt true that sometimes complicated questions requiring recording of evidence of experts may arise in a complaint about deficiency in service based on the ground of negligence in rendering medical services by a medical practitioner; but this would not be so in all complaints about deficiency rendering services by a medical practitioner. There may be cases which do not raise such complicated questions and the deficiency in service may be due to obvious faults which can be easily established such as removal of the wrong limb or the performance of an operation on the wrong patient or giving injection of a drug to which the patient is allergic without looking into the out patient card containing the warning or use of wrong gas during the course of an anaesthetic or leaving inside the patient swabs or other items of operating equipment after surgery. Furthermore, it has been observed in Malay Kumar Gangulis case (AIR 2010 SC 1162) that" charge of professional negligence on a medical person is a serious one as it affects his professional statusand reputation and as such, the burden of proof would be more onerous. A doctor cannot be held negligent only because something has gone wrong. He also cannot be held liable for mischance or misadventure or for an error in judgment in making a choice when two options are available. The mistake in diagnosis is not necessarily a negligent diagnosis." In the instant matter, thus a simple test, in the light of aforesaid observations, needs to be conducted in order to ascertain whether the Doctor is guilty of any tortious act of negligence/battery amounting to deficiency in conducting a surgery in the delivery of child and not properly attending the patient, the complainant and consequently, liable to pay damages for leaving cotton mass in the abdomen / stomach due to failure in surgery and deteriorating condition of the patient.
Now, it is required to be seen whether an expert report is necessary in each and every case relating to medical negligence or not ? It has been observed by the Honble Apex Court in Indian Medical Association Vs. V.P. Santha III (1995) CPJ 1 (SC) at para 37 that "it is no doubt true that sometimes complicated questions requiring recording of evidence of experts may arise in a complaint about deficiency in service based on the ground of negligence in rendering medical services by a medical practitioner; but this would not be so in all complaints about deficiency rendering services by a medical practitioner. There may be cases which do not raise such complicated questions and the deficiency in service may be due to obvious faults which can be easily established such as removal of the wrong limb or the performance of an operation on the wrong patient or giving injection of a drug to which the patient is allergic without looking into the out patient card containing the warning or use of wrong gas during the course of an anaesthetic or leaving inside the patient swabs or other items of operating equipment after surgery. Furthermore, in B. Krishna Rao Vs. Nikhil Super Speciality Hospital 2010 (V) SCC513 at para 40 the Honble Apex Court was pleased to hold that it is not necessary to have opinion of the expert in each and every case of medical negligence. The Honble Apex Court was pleased to further hold in Nizam Institute of Medical Sciences Vs. Prashant S. Dhananka and others 2009 (VI) SCC 1 that "in a case of medical negligence, once initial burden has been discharged by the complainant by making of a case of negligence on the part of the hospital or the doctor concerned, the owner then shifts on the hospital or to the attending doctors and it is for the hospital to satisfy the court that there was no lack of care or diligence".
A doctrine or rule of evidence in tort law that permits an inference or presumption that a defendant was negligent in an accident injuring the plaintiff on the basis of circumstantial evidence if the accident was of a kind that does not ordinarily occur in the absence of negligencea plaintiff who establishes the elements of res ipsa loquitur can withstand a motion for summary judgment and reach the jury without direct proof of negligence-- Cox v. May Dept. Store Co., 903 P.2d 1119 (1995).
In Byrne vs Boadle, this maxim was used for the first time where the complainant was injured by a barrel that dropped from the window of the defendant. In the abovementioned case, Pollock, C. B., said "here are many incidents from which no presumption of negligence can arise, but this is not true in every case. It is the duty of persons who keep barrels in a warehouse to take care that they do not roll out and I think that such a case will, beyond all doubt, afford prima facie proof of negligence."
This doctrine intends to help direct the court proceedings to a conclusion, especially if it is established through the implication of this doctrine's rule that the injury caused to the claimant would not have occurred or taken place if the defendant wasn't negligent.This also gives enough cause and evidence to hold the defendant liable for his negligent actions.
The thing speaks for itselfis the gist of the maxim Res Ipsa Loquitur Maxim. What are the essentials of this maxim.
1. The injury caused to the plaintiff shall be a result of an act of negligence.
2. There is a lack of evidence, or the evidence presented before the court is insufficient to establish the possibilities of the fault of the plaintiff or third party.
3. The defendant owes a duty of care towards the plaintiff, which he has breached.
4. There is a significant degree of injury caused to the plaintiff.
Applicability of Doctrine of Res Ipsa Loquitur.
The maxim of res ipsa loquitur came into force to benefit the plaintiff as he can use circumstantial evidence to establish negligence.
Consequently, it shifts the burden of proof on the defendant, logic being, where there is an event of unexplained cause, usually, the one that does not occur without the defendant's negligence in controlling the action which has caused the injury to the claimant or destroyed his goods.
In this scenario, the court shall presume negligence on the part of the defendant in such a case unless it includes an appropriate explanation compatible with his taking reasonable care.
In Achutrao Haribhau Khodwa and Others vs. State of Maharashtra and Others, it was considered that the maxim should not be applied in the case of general incidences of neglect and shall only be reflected when there is a significant degree of injury caused.
Section 106 of the Indian Evidence Act Section 106 of the Act provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
Res ipsa loquitur is a Latin phrase that means "the thing speaks for itself." In personal injury law, the concept of res ipsa loquitur (or just "res ipsa" for short) operates as an evidentiary rule that allows plaintiffs to establish a rebuttable presumption of negligence on the part of the defendant through the use of circumstantial evidence.
This means that while plaintiffs typically have to prove that the defendant acted with a negligent state of mind, through res ipsa loquitur, if the plaintiff puts forth certain circumstantial facts, it becomes the defendants burden to prove he or she was not negligent.
Res Ipsa Loquitur and Evidence Law Accidents happen all the time, and the mere fact that an accident has occurred doesnt necessarily mean that someones negligence caused it. In order to prove negligence in a personal injury lawsuit, a plaintiff must present evidence to demonstrate that the defendants negligence resulted in the plaintiffs injury. Sometimes, direct evidence of the defendants negligence doesnt exist, but plaintiffs can still use circumstantial evidence in order to establish negligence.
Circumstantial evidence consists of facts that point to negligence as a logical conclusion rather than demonstrating it outright. This allows judges and juries to infer negligence based on the totality of the circumstances and the shared knowledge that arises out of human experience. Res ipsa is one type of circumstantial evidence that allows a reasonable fact finder to determine that the defendants negligence caused an unusual event that subsequently caused injury to the plaintiff.
This doctrine arose out of a case where the plaintiff suffered injuries from a falling barrel of flour while walking by a warehouse. At the trial, the plaintiffs attorney argued that the facts spoke for themselves and demonstrated the warehouses negligence since no other explanation could account for the cause of the plaintiffs injuries.
As it has developed since then, res ipsa allows judges and juries to apply common sense to a situation in order to determine whether or not the defendant acted negligently.
Since the laws of personal injury and evidence are determined at the state level, the law regarding res ipsa loquitur varies slightly between states. That said, a general consensus has emerged, and most states follow one basic formulation of res ipsa.
Under this model for res ipsa, there are three requirements that the plaintiff must meet before a jury can infer that the defendants negligence caused the harm in question:
• The event doesnt normally occur unless someone has acted negligently;
• The evidence rules out the possibility that the actions of the plaintiff or a third party caused the injury; and • The type of negligence in question falls with the scope of the defendants duty to the plaintiff.
As mentioned above, not all accidents occur because of someone elses negligence. Some accidents, on the other hand, almost never occur unless someone has acted negligently.
Going back to the old case of the falling flour-barrel, its a piece of shared human knowledge that things dont generally fall out of warehouse windows unless someone hasnt taken care to block the window or hasnt ensured that items on the warehouse floor are properly stored. When something does fall out of a warehouse window, the law will assume that it happened because someone was negligent.The second component of a res ipsa case hinges on whether the defendant carries sole responsibility for the injury. If the plaintiff cant prove by a preponderance of the evidence that the defendants negligence cause the injury, then they will not be able to recover under res ipsa.
States sometimes examine whether the defendant had exclusive control over the specific instrumentality that caused the accident in order to determine if the defendants negligence caused the injury. For example, if a surgeon leaves a sponge inside the body of a patient, a jury can infer that the surgeons negligence caused the injury since he had exclusive control over the sponges during the operation.
In addition to the first two elements, the defendant must also owe a duty of care to protect the plaintiff from the type of injury at issue in the suit. If the defendant does not have such a duty, or if the type of injury doesnt fall within the scope of that duty, then there is no liability.
For example, in many states, landowners dont owe trespassers any duty to protect them against certain types of dangers on their property. Thus, even if a trespasser suffers an injury that was caused by the defendants action or inaction and that wouldnt normally occur in the absence of negligence, res ipsa loquitur wont establish negligence since the landowner never had any responsibility to prevent injury to the trespasser in the first place.
Res ipsa only allows plaintiffs to establish the inference of the defendants negligence, not to prove the negligence completely. Defendants can still rebut the presumption of negligence that res ipsa creates by refuting one of the elements listed above.
For example, the defendant could prove by a preponderance of the evidence that the injury could occur even if reasonable care took place to prevent it. An earthquake could shake an item loose and it could fall out of the warehouse window, for instance.
A defendant could also demonstrate that the plaintiffs own negligence contributed to the injury. To go back to the flour-barrel example, if the defendant shows that the plaintiff was standing in an area marked as dangerous it could rebut the presumption of negligence created by res ipsa.
Finally, the defendant could establish that he did not owe the plaintiff a duty of care under the law, or that the injury did not fall within the scope of the duty owed. For example, if the law only imposes a limited duty on the defendant not to behave recklessly, then res ipsa will not help the plaintiff by creating an inference of negligence since a negligent action would not violate the duty owed to the plaintiff.
According to the Blacks Law Dictionary the maxim is defined as the doctrine providing that, in some circumstances, the mere fact of accidents occurrence raises an inference of negligence so as to establish a prima facie (at first sight) case. It is a symbol for that rule that the fact of the occurrence of an injury taken with the surrounding circumstances may permit an inference or recipes omission of negligence, or make out a plaintiff's prima facie case and present a question of fact for defendant to meet with and explanation. It is merely a short way of saying that the circumstances attendant on the accident are of such a nature to justify a jury in light of common sense and past experience in inferring that the accident was probably the result of the defendant's negligence, in the absence of explanation or other evidence which the jury believes.
Its use in clinical negligence gained some traction before Bolam and Bolitho. Mahon v Osborne [1939] 1 All ER 535, is an early example of the application of res ipsa loquitur in a case where a surgical swab had been left inside a patient's body.
In Clarke v Worboys (1952) Times, 18 March, CA, a patient noticed burns on her buttock shortly after surgical excision of a breast tumour. The surgery involved cauterisation. The Court of Appeal held that this was a case where res ipsa loquitur applied. The outcome was not one that would ordinarily occur in the absence of negligence, and the surgical team were unable to explain how the injury was caused.
In Cassidy v Ministry of Health [1951] 2 KB 343, Denning LJ succinctly summarised the maxim's application to clinical negligence cases: "I went into hospital to be cured of two stiff fingers. I have come out with four stiff fingers and my hand is useless. That should not happen if due care had been used. Explain it if you can."
Ng Chun Pui Vs Lee Chuen Tat, the first defendant was driving a coach owned by the second defendant westwards in the outer lane of dual carriageway in Hong Kong. Suddenly the course across the central reservation and collided with a public bus travelling in the inner lane of the other carriageway, killing one passenger in the bus and injuring the driver and three others on the bus. The plaintiff could not prove that the defendants were negligent and had caused the accident. They however proceeded on the basis of Res Ipsa Loquitur and shifted the onus on the defendants to prove that they were not negligent. However, they failed to do so. And the judicial committee of the Privy Council held the defendants liable for the plaintiffs injuries. MarkLuney and Ken Opliphant, Tort Law Text And Materials (Oxford University Press, New York, 2000) pp 173-175 In A.S. Mittal &Anr Vs State Of UP &Ors , AIR 1979 SC 1570 , the defendants had organised an eye camp at Khurja along with the Lions Club. 88 low risk cataract operations were undertaken during the period of the camp. It was however, disastrous as many of those who had been operated upon lost their eyesight due to post medical treatment. Proceedings against the government initiated for negligence of the doctors. Damages worth Rs.12,500/- were paid as interim belief to each of the aggrieved. The decision was on the basis of Res Ipsa Loquitur as the injury would not ave occurred had the doctors not been negligent in not having followed up with post-operation treatment. Res Ipsa Loquitur can be applied in matters where are the procedures have not been followed and is not just limited to the commission of an act.
We can define Medical negligence as the improper or unskilled treatment of a patient by a medical practitioner. This includes negligence in taking care from a nurse, physician, surgeon, pharmacist, or any other medical practitioner. Medical negligence leads to Medical malpractices where the victims suffer some sort of injury from the treatment given by a doctor or any other medical practitioner or health care professional.
Medical negligence can occur in different ways. Generally, it occurs when a medical professional deviates from the standard of care that is required.
So, we can say that any kind of deviation from the accepted standards of medication and care is considered to be medical negligence and if it causes injury to a patient then the doctor who operated on him, other staff and/or hospital may be held liable for this.
Some of the common categories of medical negligence are as follows:
• Wrong diagnosis - When someone goes to a hospital, clinic or medical room, etc. the first step after admittance is the diagnosis. Diagnosing symptoms correctly is critical and important to provide medical care to any patient. However, if a patient is not treated properly due to any mistake in diagnosis, the doctor can be made liable for any further injury or damages caused as a result of the wrong diagnosis.
• Delay in diagnosis - A delayed diagnosis is treated as medical negligence if another doctor would have reasonably diagnosed the same condition in a timely fashion. A delay in diagnosis can cause undue injury to the patient if the illness or injury is left to worsen with time rather than being treated. Obviously, any delay in the identification and treatment of an injury can reduce the chance of recovery for the patient.
• Error in surgery - Surgical operations require an enormous level of skill and it should be done with due care and caution because even the slightest mistakes can have profound effects on the patient. The wrong-site surgery, lacerations of any internal organ, severe blood loss, or a foreign object being left in the body of the patients, all this comes under Surgical error.
• Unnecessary surgery - Unnecessary surgery is usually associated with the misdiagnosis of patient symptoms or a medical decision without proper consideration of other options or risks. Alternatively, sometimes surgery is chosen over conventional treatments for their expediency and ease compared to other alternatives.
• Errors in the administration of anesthesia - Anesthesia is a risky part of any major medical operation and requires a specialist (anesthesiologist) to administer and monitor its effect on the patient. Prior to any medical procedure requiring anesthesia, the anesthesiologist has to review the patient's condition, history, medications, etc. to determine the most suitable of all the medicine to use. Anesthesia malpractice can happen even during the pre-operation medical review or during the procedure itself.
• Childbirth and labor malpractice - Childbirth is a difficult event for a woman and it becomes worse if not handled properly by the doctors and nurses. There are many instances of medical negligence during childbirth including the mishandling of a difficult birth, complications with induced labor, misdiagnosis of a newborn medical condition, etc. • Long-Term negligent treatment - Medical negligence can also occur in subtle ways over the course of a long treatment period. Usually, the negligence can take the shape of a failure to follow up with treatment, or a doctor's failure to monitor the effects of the treatment properly.
A standard of care specifies the appropriate treatment and medication procedure as per the requirements that should be taken into account by a doctor while providing the treatment to his patients. The care should not be of the highest degree nor the lowest. Here, the degree means the level of care an ordinary health care professional, with the same training and experience, would render in similar circumstances in the same community. This is the critical question in medical malpractice cases and if the answer is "no," and you suffered injury as a result of the poor treatment, you may file a suit for medical malpractice.
In the case of Dr. Laxman Balkrishna Joshi Vs. Dr. TrimbakBapu Godbole and Anr.[ 1969 AIR 128], the Supreme Court held that a doctor has certain aforesaid duties and a breach of any of those duties can make him liable for medical negligence. A doctor is required to exercise a reasonable degree of care that is set for this profession.
Dr. Kunal Saha vs Dr. Sukumar Mukherjee on 21 October, 2011 ( NC) original petition number 240 OF 1999 is one of the most important case regarding medical negligence. The brief facts of the case are-
Toxic Epidermal Necrolysis (TEN) is a rare and deadly disease. It is an extoliative dermatological disorder of unknown cause. A patient with TEN loses epidermis in sheet-like fashion leaving extensive areas or denuded dermis that must be treated like a larze, superficial, partial-thickness burn wound. The incidence of TEN has been reported at 1 to 1.3 per million per year. The female-male ratio is 3:2. TEN accounts for nearly 1% of drug reactions that require hospitalization. TEN has a mortality rate of 25 to 70%.
Smt. Anuradha Saha (in short Anuradha), aged about 36 years wife of Dr. Kunal Saha (complainant) became the unfortunate victim of TEN when she alongwith the complainant was in India for a holiday during April-May 1998. She and the complainant although of Indian original were settled in the United States of America. The complainant is a doctor by profession and was engaged in research on HIV / AIDS for the past fifteen years. Anuradha after acquiring her Graduation and Masters Degree was pursuing a Ph.D. programme in a university of U.S.A. She was a Child Psychologist by profession. Anuradha showed certain symptoms of rashes over her body and received treatment at the hands of Opposite Parties and some other doctors as outdoor patient uptil 10.05.1998 and she was admitted in Advanced Medicare and Research Institute Limited, Calcutta (for short, AMRI), on 11.05.1998, where she was treated by the above-named Opposite Parties and other doctors uptil 16.05.1998. As there was no improvement in her condition, she was shifted to Breach Candy Hospital, Mumbai, on 17.05.1998 by an air ambulance. She was treated in Breach Candy Hospital from 17.05.1998 evening till she breathed her last on 28.05.1998.
Our Complainant as husband of Anuradha felt that the doctors who treated Anuradha and the hospitals where she was treated were grossly negligent in her treatment and her death was occasioned due to gross negligence of the treating doctors and hospitals. Complainant, accordingly, got issued a legal notice to as many as 26 persons i.e. various doctors who treated Anuradha between end of April to the date of her death alleging negligence and deficiency in service on their part and claiming a total compensation exceeding Rs.55 crores from them. Complainant, thereafter filed the present complaint on 09.03.1999 before this Commission claiming a total compensation of Rs. Rs.77,07,45,000/- ( Seventy Seven Crores Seven Lakhs Fourty Five Thousand only). Later he also filed another complaint no. 179 of 2000 in this Commission against Breach Candy Hospital, its doctors and functionaries claiming a further compensation of Rs.25.30 crore ( though the said complaint was later on withdrawn), thereby making claim of compensation exceeding Rs.102 crores, perhaps the highest ever claimed by any complainant for medical negligence before any consumer fora established under the provisions of Consumer Protection Act, 1986 ( in short, the Act). These are some of the facts which make the present case extra ordinary.
The present complaint was filed by the complainant against the above-named opposite parties, namely, Dr. Sukumar Mukherjee, Dr. B. Haldar (Baidyanath Halder), Advanced Medicare and Research Institute Limited ( in short the AMRI Hospital ) and Dr. Balram Prasad and Dr.Abani Roy Chowdhury (physician) and Dr. Kaushik Nandy (plastic surgeon), the Directors of the AMRI Hospital and others claiming a total compensation of Rs. Rs.77,07,45,000/- under different heads alleging various acts of commission and omission on the part of the doctors and hospital amounting to negligence and deficiency in service. Complainant through his brother-in-law Malay Kumar Ganguly also filed criminal complaint against some of the doctors and the hospital under section 304A IPC.
The complaint was resisted by the doctors and the hospital on a variety of grounds thereby denying any medical negligence or deficiency in service on their part. Parties led voluminous documentary and oral evidence and testimonies of some of the witness were even recorded through video conferencing through a Local Commissioner. After a protracted trial and hearing and on consideration of the evidence and material so produced on record and taking note of the legal position governing the question of medical negligence, this Commission ( by a three Member Bench presided over by the then President) dismissed the complaint by an order dated 01.06.2006 holding as under:
In the result, we reiterate that Doctors or Surgeons do not undertake that they will positively cure a patient. There may be occasions beyond the control of the medical practitioner to cure the patients. From the record, it would be difficult to arrive at the conclusion that the injection Depo-Medrol prescribed by Dr. Mukherjee was of such excessive dose that it would amount to deficiency in service by him which was his clinical assessment.
Thereafter, with regard to the alleged deficiency in the treatment given to Mrs. Anuradha by Opposite Party Doctors 2, 3, 5 and 6, there is no substance. The contention against the hospital that it was not having Burns-Ward, and therefore, the deceased suffered is also without substance. Hence, this complaint is dismissed. There shall be no order as to costs.
Aggrieved by the dismissal of his complaint, the complainant filed Civil Appeal (No.1727 of 2007) in the Honble Supreme Court. It would appear that even before the said appeal was filed before the Hon'ble Supreme Court, the Supreme Court was seized of the matter in Criminal Appeal Nos.1191-94 of 2005 filed by Malay Kumar Ganguly, the complainant in the criminal complaint, against the Orders passed by the Calcutta High Court. Since the Criminal Appeals and the Civil Appeal filed by the complainant in the present complaint raised the same questions of fact and law, the Hon'ble Supreme Court heard all the appeals together and decided the same by means of a detailed judgment dated 07.8.2009. By the said order, the Apex Court dismissed the Criminal Appeals filed by Shri Malay Kumar Ganguly but allowed the Civil Appeal No. 1727 of 2007 filed by the complainant and set aside the order dated 01.6.2006 passed by this Commission dismissing the complaint and remanded the matter to this Commission for the limited purpose of determining the adequate compensation, which the complainant is entitled to receive from the subsisting opposite parties by observing as under:
So far as the judgment of the Commission is concerned, it was clearly wrong in opining that there was no negligence on the part of the Hospital or the doctors. We, are, however, of the opinion, keeping in view the fact that Dr.KaushikNandy has done whatever was possible to be done and his line of treatment meets with the treatment protocol of one of the experts viz.. Prof. Jean Claude Roujeau although there may be otherwise difference of opinion, that he cannot be held to be guilty of negligence.
We remit the case back to the Commission only for the purpose of determination of the quantum of compensation. We, keeping in view the stand taken and conduct of AMRI and Dr. Mukherjee, direct that costs of Rs.5,00,000 and Rs.1,00,000 would be payable by AMRI and Dr. Mukherjee respectively.
We further direct that if any foreign experts are to be examined it shall be done only through video conferencing and at the cost of the respondents.
Summary In view of the foregoing discussion, we conclude as under:
The facts of this case viz., residence of the complainant and Anuradha (deceased) in USA and they working for gain in that country; Anuradha having been a victim of a rare and deadly disease Toxic Epidermal Necrolysis (TEN) when she was in India during April-May 1998 and could not be cured of the said disease despite her treatment at two superspeciality medical centres of Kolkata and Mumbai and the huge claim of compensation exceeding Rs.77 crores made by the complainant for the medical negligence in the treatment of Anuradha makes the present case somewhat extraordinary.
The findings given and observations made by the Supreme Court in its judgment dated 07.08.2009 are absolutely binding on this Commission not only as ratio decidendi but also as obiter dicta also, the judgment having been rendered by the Supreme Court in appeal against the earlier order passed by a three Member Bench of this Commission and, therefore, no attempt can be allowed to read down/dilute the findings and observations made by the Supreme Court because the Supreme Court has remitted the complaint to this Commission only for the purpose of determination of the quantum of compensation after recording the finding of medical negligence against the opposite parties and others.
The task entrusted to the Commission may appear to be simple but the facts of the present case and the voluminous evidence led on behalf of the complainant has made it somewhat arduous. Still difficult was the task of apprortionment of the liability to pay the awarded amount by the different opposite parties and perhaps it was for this reason that the Supreme Court has remitted the matter to this Commission.
Multiplier method provided under the Motor Vehicles Act for calculating the compensation is the only proper and scientific method for determination of compensation even in the cases where death of the patient has been occasioned due to medical negligence / deficiency in service in the treatment of the patient, as there is no difference in legal theory between a patient dying through medical negligence and the victim dying in industrial or motor accident. The award of lumpsum compensation in cases of medical negligence has a great element of arbitrariness and subjectivity.
The foreign residence of the complainant or the patient and the income of the deceased patient in a foreign country are relevant factors but the compensation awarded by Indian Fora cannot be at par which are ordinarily granted by foreign courts in such cases. Socio economic conditions prevalent in this country and that of the opposite parties / defendants are relevant and must be taken into consideration so as to modulate the relief. A complainant cannot be allowed to get undue enrichment by making a fortune out of a misfortune. The theoretical opinion / assessment made by a Foreign Expert as to the future income of a person and situation prevalent in that country cannot form a sound basis for determination of future income of such person and the Commission has to work out the income of the deceased having regard to her last income and future prospects in terms of the criteria laid down by the Supreme Court.
There exists no straight jacket formula for apportionment of the awarded compensation amongst various doctors and hospitals when there are so many actors who are responsible for negligence and the apportionment has to be made by evolving a criteria / formula which is just going by the nature and extent of medical negligence and deficiency in service established on the part of different doctors and hospitals.
On a consideration of the entirety of the facts and circumstances, evidence and material brought on record, we hold that overall compensation on account of pecuniary and non pecuniary damages works out to Rs.1,72,87,500/- in the present case, out of which we must deduct 10% amount on account of the contributory negligence / interference of the complainant in the treatment of Anuradha. That will make the net payable amount of compensation to Rs.1,55,58,750/- (rounded ofto Rs.1,55,60,000/-). From this amount, we must further deduct a sum of Rs.25,93,000/- which was payable by Dr. Abani Roy Chowdhury (deceased) or his Legal Representative as the complainant has forgone the claim against them.
In view of the peculiar facts and circumstances of the case and as a special case, we have awarded a sum of Rs. 5,00,000/- as cost of litigation in the present proceedings.
The above amount shall be paid by opposite parties no.1 to 4 to the complainant in the following manner:
(i) Dr. Sukumar Mukherjee-opposite party no.1 shall pay a sum of Rs.40,40,000/- (Rupees Forty Lakh Forty Thousand only) i.e. [Rs.38,90,000/- towards compensation and Rs.1,50,000/- as cost of litigation].
(ii) Dr. B. Haldar (Baidyanth Halder)-opposite party no.2 shall pay a sum of Rs.26,93,000/- (Rupees Twenty Six Lakh Ninety Three Thousand only) i.e. [Rs.25,93,000/- towards compensation and Rs.1,00,000/- as cost of litigation]
(iii) AMRI hospital-opposite party no.3 shall pay a sum of Rs.40,40,000/- (Rupees Forty Lakh Forty Thousand only ) i.e. [Rs.38,90,000/- towards compensation and Rs.1,50,000/- as cost of litigation.
(iv) Dr. Balram Prasad-opposite party no.4 shall pay a sum of Rs.26,93,000/- (Rupees Twenty Six Lakh Ninety Three Thousand only) i.e. [Rs.25,93,000/- towards compensation and Rs.1,00,000/- as cost of litigation] The opposite parties are directed to pay the aforesaid amounts to the complainant within a period of eight weeks from the date of this order, failing which the amount shall carry interest @ 12% p.a. w.e.f. the date of default."
Now in this case it has become clear that the opposite party did not act thoroughly and with proper precautions and only on the advice of his institute doctors they decided to apply chemotherapy on the complainant. Before applying chemotherapy highest degree of precaution should have been adopted because its side effects are not good. Second opinion should have been taken from some higher cancer institute whether in Delhi or in Bombay. There is facility of videoconferencing so this facility should have been used for the confirmation of ovarian cancer. Rajiv Gandhi cancer institute is one of the most prestigious cancer institute in Asia. It's diagnosis is of extreme nature. The complainant should have been referred to this institute for further treatment.
Indraprastha Cancer Society and Research Centre, is a "not for profit organization", formed under the Societies Registration Act 1860 and it had set up Rajiv Gandhi Cancer Institute and Research Centre, a standalone oncology care centre, in Delhi, in 1996. The founders of the society are a group of socially responsible self less philanthropist, who had no financial resources but by dent of their hard work and sheer determination, were able to, initially, raise money for running the hospital. Quality, affordability and easy access, for the patients suffering from cancer were the main motivating factors for setting up of the Hospital.
RGCIRC is a great example of a "not for profit organization" supplementing government efforts in the area of healthcare.
Rajiv Gandhi Cancer Institute and Research Centre is today counted amongst Asia's premier exclusive cancer centres that offer unique advantage of cutting edge technology, put to use by renowned super specialists. This potent combination of man and machine ensures world-class cancer care to not only patients from India, but also from the neighboring SAARC countries and others. We are fortunate to have touched lives of more than 2.75 Lakh patients since inception in 1996.
The Institute offers super specialized tertiary care services in Medical, Surgical and Radiation Oncology, streamlined into dedicated Site-Specific teams. Super Specialists at RGCIRC practice an organ specific multi-disciplinary approach to cancer diagnosis and treatment, with the Tumor Board acting as a second opinion clinic for cases that are more critical than others.
We use front-line technology that helps accurate identification of each patient's unique cancer and planning of treatment for best possible results. The first hospital in India to begin robotic surgery for cancer patients, first hospital in India to install true beam for precision radiotherapy and first hospital in India to set-up a molecular laboratory.
Spread over nearly 2 Lakh square feet area, with a current capacity of 500 beds, RGCIRC is one of the largest tertiary cancer care centres in the continent. RGCIRC has 14 state-of-the-art well equipped modular Operation Theatres with three stage air filtration and gas scavenging systems, and 2 Minor Operation Theatres for Day Care Surgeries.
The Institute has 51 bedded Surgical ICU and an 21 bedded Medical ICU, dedicated Leukemia ward, separate Thyroid Ward, and an independent 22 bedded Bone Marrow Transplant Unit that is credited with pioneering unrelated donor transplants, MUD transplants, and stem cell transplants. Supportive facilities such as Renal Replacement therapies, various endoscopies (including EBUS and Endoscopic Ultrasound) are also available.
RGCIRC is committed to bringing the benefits of cutting edge technology to its patients. The Institute offers best in class techniques such as whole-body robotic surgery, Intra-Operative Brachytherapy, True Beam (the next generation Image Guided Radiation Therapy), PET- MRI fusion, High Frequency Ultrasound, Tomosynthesis (first-of-its-kind revolutionary 3D mammography machine), Nucleic Acid Testing (for safest possible blood), and advanced diagnostic and imaging techniques, including Digital PET CT, Circulating Tumor Cell testing, liquid biopsy, and Next Generation Sequencing. Institute has established Molecular Laboratory for gene profiling, Biorepository (Tissue Bank) for clinical and research purpose and a dedicated Cath Lab for cancer patients has been started to do all interventional radiology procedures, few such as portal venous embolization, carotid artery embolization, TACE, TARE etc. RGCIRC has been consistently ranked amongst India's Best Oncology Hospitals, and has been the recipient of many awards, including National Business Leadership & Service Excellence Award 2017 for Best Oncology Hospital in India, Indywood Medical Excellence Award 2017, Most Trusted Hospital in Oncology 2017 by India Today (Reader's Digest), India's Most Trusted Hospital for Oncology (Readers' Digest Most Trusted Brands 2016) and Runner up in Finest India Skills & Talent Award 2020 organized by Fire & Security Association of India.
So in this case we find clear negligence on the part of the party and also there is deficiency of service. The doctor did not play their role with utmost care and devotion. We have discussed about the reliefs to be granted to the complainant and came to conclusion that the total amount Rs.20 lakhs should have been granted to the complainant for all mental agony, trauma, physical pain, cost of the suit with interest at a rate of 12% from 01.08.216 if paid within 60 days from the date of judgment of this complaint case otherwise the rate of interest shall be 15% from 01.08.216 till the actual payment. The complaint case is decided accordingly.
ORDER The complaint is allowed. The opposite parties are directed jointly and severally to pat Rs.20 lakhs to the complainant for all mental agony, trauma, physical pain, cost of the suit with interest at a rate of 12% from 01.08.2016 if paid within 60 days from the date of judgment of this complaint case, otherwise the rate of interest shall be 15% from 01.08.2016 till the actual payment.
The stenographer is requested to upload this order on the Website of this Commission today itself.
Certified copy of this judgment be provided to the parties as per rules.
(Sushil Kumar) (Rajendra Singh) Member Presiding Member Judgment dated/typed signed by us and pronounced in the open court. Consign to the Record-room. (Sushil Kumar) (Rajendra Singh) Member Presiding Member Dated 3.4.2013 JafRi, PA I C-2 [HON'BLE MR. Rajendra Singh] PRESIDING MEMBER [HON'BLE MR. SUSHIL KUMAR] JUDICIAL MEMBER