State Consumer Disputes Redressal Commission
Sukham Modhusudan Singh vs Shija Hospital And Research Institute ... on 25 October, 2024
Cause Title/Judgement-Entry BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION (STATE COMMISSION) IMPHAL MANIPUR Complaint Case No. CC/3/2017 ( Date of Filing : 20 Dec 2017 ) 1. Sukham Modhusudan Singh Chingamathak Pishum Leirak,Singjamei Imphal west Manipur ...........Complainant(s) Versus 1. Shija hospital and Research Institute Pvt.Ltd. Health City,Kangol,Lamphel Imphal west Manipur 2. Dr.S.Jugindro ,General surgeon,consultant,Shija hospital langol 3. dr.Debendra Khwairakpam,MBBS,MS General and Leparascopic Surgeon,Shija Hospital Langal ............Opp.Party(s) BEFORE: HON'BLE MR. Th. Saimon PRESIDING MEMBER HON'BLE MRS. M. Pemila MEMBER HON'BLE MR. N. Banikumar Singh MEMBER PRESENT: Mr. The. Mahira singh,W.Khaba Singh,M.Naoba Singh,N.Sonampriya Devi, Advocate for the Complainant 1 Mr. Ch. Anthony Mr.Ch.Dhananjoy,Mrs.L. Pravapati ,Mr.O.Rajesh, Advocate for the Opp. Party 1 Mr.Ch. Dhananjoy Singh and Mr.O Rajesh Singh, Advocate for the Opp. Party 1 Mrs.L.Pravabati, Advocate for the Opp. Party 1 Dated : 25 Oct 2024 Final Order / Judgement Mr. Th. Saimon Singh, Hon'ble President (Acting):- The present case has been filed by the complainant against the Opposite Parties No. 1 to 3 with a prayer for awarding compensation to the complainant for causing death of the complainant's wife namely Sukham (Ongbi) Savitri Devi (hereinafter referred to as the deceased patient), due to gross negligence on the part of the Opposite parties No. 1 to 3, having failed to perform their basic bounden professional duties to save the precious life of the deceased patient. 2. Brief facts of the complaint Case are that on 22/09/2017, Complainant's wife namely Sukham (Ongbi) Savitri Devi attended Shija Hospital and Research Institute Pvt. Ltd. (for short 'the said Hospital') with a complaint of having right flank pain with mild fever. Thereafter, on advice of the doctors concerned Sukham (Ongbi) Savitri Devi was admitted to the said Hospital on the said day for further necessary medical treatment at Bed no. G.s. 1202 and after operation at Bed No. GI 1104. 3. On the said day i.e., 22/09/2017, the concerned Urology Doctor advised to undergo various medical clinical examinations/ tests of deceased patient. Accordingly the deceased patient underwent all the medical clinical examinations as advised by the concerned doctors including "Ct SCAN of the whole abdomen" as advised by Opposite Party No. 3 according to the Hospital records. In the clinical report dated 22/09/2017 (Annexure-C/1 of the Complaint, i.e. CT Scan of whole abdomen) it was suggested to undergo MRI /histo-pathological correlation but the O.Ps. did not conduct the said test before performing surgery of Sukham (Ongbi) Savitri Devi for the reasons best known to them. 4. The Opposite Party No. 3 asked the Complainant and his wife (Sukham Ongbi) Savitri Devi) to undergo surgery for removing fibrous tumor. When asked by the Complainant about the nature of the surgery to Opposite party 3, he advised that there was nothing to worry about the surgery as it would be done to remove. "Fibrous Tumor non malignant" from the abdomen which was the cause of illness. He also said to the patient party repeatedly that the operation was not life threatening one. 5. Believing the advice of Opposite Party 3 the Complainant and his wife (Sukham (Ongbi) Savitri Devi) gave their consent for performing surgery. Thereafter, on 25/09/2017 some other various medical clinical examinations were advised by the concerned doctors which the patient underwent. 6. After going through the medical clinical examinations reports dated 25/09/2017 (Ext.), the Opposite Party No. 3 fixed 28/09/2017 as day for surgery. He advised the patient including Complainant to arrange 1 or 2 blood unit (s) for the said surgery since the hemoglobin level was 11.2 before the said operation. As advised by the Opp. Party No. 3 the complainant arranged the said unit of bloods. 7. On 28/09/2017 at about 7 a.m. the deceased patient was taken inside the operation theater and surgery was started at 8 a.m and was completed at about 2 p.m. of the same day. The surgery was jointly conducted by the Opp. Parties No. 2 & 3. during the process of surgery till patient's death, the Opp. Parties No. 2 and 3 demanded as many as 40 units of blood including platelets and FFP were all fulfilled by the Complainant without any delay. 8. After the surgery, Opp. Party No. 3 told the Complainant and patient parties that the health condition of the patient was very critical and his team are trying their best efforts. Being suspicious to the nature and comment of the Opp. Party No. 3 on completion of the operation, the Complainant insisted for biopsy of the tumor which was taken out during the process of operation from the patient. Thereafter biopsy of the said tumor was done at Babina Diagnostics as well as at the said Hospital. To the shock and surprise of the Complainant, both the test results of the medical clinical test of the said tumor gave the impression of "Malignant haemangioperi-cytoma/solitary fibrous tumor, "which means that the tumor has the property of locally spreading and spreading to distant sited" in other words same was a cancer. 9. On the very day of operation/ surgery i.e., 28/09/2017 at about 8.30 p.m., the patient was declared dead by the Opposite party vide "Death Summary" which was issued only 04/10/2017 after repeated demands from the side of the complainant and his family members. As per the Death summary dated 28/09/2017, the patient came with complaints of right flank pain associated with fever, nausea and difficulty in micturition since the last 2 days. USG showed right hydro ureter with nephrosis and uterine fibroid and proceeded exploratory laparotomy on 28/09/2017 and it was found that large pelvic retro peritoneal tumor displacing the bladder and uterus anteriorly and retum towards right with multiple large engaged blood vessels over surface of tumor with tumor attaching to pre-sacral fascia not infiltrating to sacrum and laterally tumor attaching to lateral pelvic wall with thick capsule. Intra operatively, tumor was mobilized and excised but there were multiple bleeding points and diffuse ooze from tumor bed noted. Large amount of blood loss occurred. Large bleeding vessels were ligated but due to coagulopathy, there were uncontrolled diffused ooze from tumor bed. Intra-operatively, she went into shock and BP became unrecoverable. She was transfused with six units PRBC, three units of platelets, two units of FFP intra-operatively, Inj. Adrenaline and the noradrenaline infusion was started to maintain her BP. Post- operatively, patient was kept in GICU under ventilator support. Central line insertion was done intra-operativel, arterial line insertion was done post. operatively. Inj. Sodium bicarbonate and inj. Calcium gluconate were given in GICU. Total sixteen units of PRBC, twelve units of FFP, twelve units of platelets were given during her hospital stay (Death Summary Report dated 28.09.2017 is enclosed as Annexure-C/5 in Complaint Application). After post operation but before death certain other medical clinical examinations were also done and the said report is enclosed as Annexure- C/6 in the Complaint Application. 10. The nature of treatment provided to the patient by the opposite parties and on going through medical clinical examination reports and Death Summary, it seem that the O.Ps had never attempted to know about the nature of tumor, what was the tumor, cause of tumor and the outcome of the operation if malignant which were very important to be ascertained by the O.Ps. before performing the operation. The O.Ps failed to perform the required and necessary diagnosis of the patient before operation. They have conducted the operation of the patient without knowing the nature of tumor which led to death of the patient. If proper diagnosis would have been performed then the line of treatment of the patient would be definitely different. Due to lack of proper diagnosis, wrong treatment was given to the patient by the O.Ps. leading the dead of the patient which is a gross medical negligence committed by the O.Ps as well as deficiency in service while giving treatment. 11. The Frozen section biopsy was requested repeatedly by the Complainant and Patient party before operation from 25.09.2017 and during the operation but was neglected to the utmost level by the Respondent nos. 2 and 3, they declined the said test mentioning as "NOT NECESSARY". In spite of suggestion in the medical clinical examination report dated 22.09.2017 to undergo MRI/histo-pathological correlation of the patient, the O.Ps. did not follow the suggestion and had not performed the said tests. There is a big mis-communication between the Doctors operating the patient and other Doctors who were participating in the treatment process of the patient. Before operation, Respondent No. 3 advised the patient and her party saying that there is nothing to worry about the surgery as it would be done only to remove "fibrous tumor which is non malignant" from the abdomen which is the cause of illness and the operation is not life threatening. The patient and her party was never given a chance of proper diagnosis and the O.P No. 3 never advised about the true causes/outcome if the surgery of the tumor is Malignant/cancerous. If the O.P. No. 3 had advised the seriousness and true diagnosis of the patient's tumor, the patient or the patient party would have never agreed or consented to the said operation. O.P. No. 3 never advised what, how of the surgery if the tumor is malignant. He consented himself and advised that the tumor was Non-malignant and he can perform the operation without causing any harm to the patient and thus proceeded with the operation. The O.P. never attempted to know about the tumor nor had taken any step or steps to study the case of patient in any manner whatsoever but have conducted operation for removing tumor without having proper knowledge of the said tumor. Proper and required diagnosis of the patient were never done by the O.Ps. before undergoing operation. Due to lack of proper diagnosis, wrong treatment was given to the patient leading to death. Operating surgeons, i.e. O.P. Nos. 2 and 3 are not qualified Onco Surgeons. If operating surgeons are qualified Onco Surgeons then they have treated and examined the patient before operation or the operation not done or delayed. With these averments the complainant has filed the present consumer complaint alleging that the opposite parties are jointly and severally liable to pay i) the amount which was incurred in the treatment of the Complainant's wife which the O.Ps. received through FCI Medical Scheme. ii) To pay compensation of Rs. 50,00,000/- (Rupees fifty Lakh) for medical negligence, deficiency in service and loss of life of complainant's wife. iii) To pay costs of litigation and iv) Further and other reliefs which the complainant is entitled to.
12. The opposite parties have filed their joint written statement in response to the consumer complaint filed by the complainant. except for mere denial of the contentions made in the Complaint Application, the opposite parties have pleaded that Shija Hospital & Research Institution is internationally recognized multi specialty treating Hospital. The Surgery Department has DNB post graduate training of 3 years course under Ministry of Health. Shija Hospital is legally equipped and authorized to perform and is capable of high end advanced surgeries of all types including kidney transplant, joint replacement, Neuro surgeries, life saving plastic surgeries and heart procedure. Shija Hospitals holds the Guinness book of record for removing the neck tumor from human. Shija Hospital and its management is committed to quality health care in the region. In this regard Shija Hospitals is the only NABH-Pre Accreditation Hospital in Manipur. NABH (National Accreditation Board for Hospital and healthcare providers) is the apex accreditation board in the country to apply strict protocol for patient and employee safety.
13. The opposite parties further stated that when patient was subjected to CT scan, doing of MRI would not give extra information that will change the decision making. on 26.09.2017 during the pre-operative counselling with the husband of the patient and son-in-law, the opposite parties had explained the condition about the patient (Retro Rectal tumor) and the problem that might encounter during the surgery because of the position of the tumor, rarity and they were given the option for going outside Hospital.
14. It is the contention of the opposite parties that if the FROZEN SECTION BIOPSY is done, the report is going to change therapeutic decision. In this case frozen section would not change therapeutic decision. As such FROZEN SECTION BIOPSY test had no purpose. the initial units of blood were arranged for urgent utilization, the rest of the units of blood were meant for the situation which might be demanded.
15. the opposite parties further stated that the o.P. Nos. 1 and 2 are qualified surgeons from nationally reputed Institutions having trained in all forms of surgeries and professional experiences of more than 20 years and 16 years respectively. Both Surgeons are national faculties and trained surgeons from other countries and from the rest of India. they have done all necessary diagnosis of the patient before performing the operation and had taken the necessary steps in the treatment of the patient. All the specialists and supporting staff involved in the treatment of the said patient have discharged their services with their best level to treat the patient by using all available resources. With these submissions the opposite parties have prayed for dismissed of the complaint.
16.1 The Complainant has filed and exhibited 15 (fifteen) documents in support of his case and they are as follows:-
(i) C.T. Scan report (whole abdomen) of Mrs. Sukham (Ongbi) Savitri Devi, dated 22.09.2017 (Exhibit-P/2);
(ii) Kidney Function Test (KFT) of Mrs. Sukham (Ongbi) Savitri Devi, dated 22.09.2017 (Exhibit-P/3);
(iii) Laboratory report of Urine RE of Mrs. Sukham (Ongbi) Savitri Devi, dated 22.09.2017 (Exhibit-P/4);
iv) Laboratory report of Haematology of Mrs, Sukham (Ongbi) Savitri Devi, dated 22.09.2017 (Exhibit-P/5);
(v) laboratory report of complete Haemogram of Mrs. Sukham (Ongbi) Savitri Devi, dated 22.09.2017 (Exhibit-P/6);
(vi) Laboratory report of Liver Function Test (LFT) and Kidney Function Test (KFT) of Mrs. Sukham (Ongbi) Savitri Devi, dated 22.09.2017 (Exhibit-P/7);
(vii) Laboratory report of Culture and Sensitivity Urine of Mrs. Sukham (Ongbi) Savitri Devi, dated 22.09.2017 (Exhibit-P/8);
(viii) Laboratory report of HBsAg (Australian Antigen) of Mrs. Sukham (Ongbi) Savitri Devi, dated 25.09.2017 (Exhibit-P/9);
(ix) Laboratory report of HIV antibody of Mrs. Sukham (Ongbi) Savitri Devi, dated 25.09.2017 (Exhibit-P/10);
(x) Laboratory report of HCV antibody of Mrs. Sukham (Ongbi) Savitri Devi, dated 25.09.2017 (Exhibit-P/11);
(xi) Laboratory report of Histopathology of Mrs. Sukham (Ongbi) Savitri Devi, dated 28.09.2017 (Exhibit-P/12);
(xii) Laboratory report of Histopathology of Mrs. Sukham (Ongbi) Savitri Devi, dated 28.09.2017 (Exhibit-P/13);
(xiii) Laboratory report of Death Summary of Mrs. Sukham (Ongbi) Savitri Devi, dated 28.09.2017 (Exhibit-P/14);
(xiv) Laboratory report of Kidney Function (KFT) and Haemoglobin of Mrs. Sukham (Ongbi) Savitri Devi, dated 28.09.2017 (Exhibit-P/15) and
(xv) Bill Breakup details for treatment of Mrs. Sukham (Ongbi) Savitri Devi, dated 28.09.2017 (Exhibit-P/16).
16.2 The Complainant had produced six (6) witnesses including himself in support of his case. The names of the witnesses are (i) Sukham Madhusudan Singh (Complainant), (ii) Sukham Tuni Devi, (iii) Santaraj Singh Sanasam, (iv) Dr. K. Lekhachandra Sharma, (v) Dr. S. Opendro and (vi) Dr. Sukham Thoibahenba Singh.
17.1 The Opposite parties have filed and executed the following documents:-
i) CT Scan of whole Abdomen and KUB, (Two pages) dated 22/09/2017 (Mark X/I) ii) Ultra sound report dated 22/09/2017 (Mark x/2) 17.2 Opposite Parties produced 3 (three) witnesses including themselves in support of his case. The names of the witnesses are (i) Dr. Devendra Khwairakpam (Respondent No. 3), (ii) Dr. Jugindra Sorokhaibam (Respondent No. 2), (II) Dr. Alok Kumar Paharia Sonologist of Babina Diagnostics Soibam Leikai Ahongei Leirak, Imphal East, Porompat P.O. & P.S. Porompat, Manipur. 17.3 Vide order dated 06/07/2018 i) Dr. Lourembam Sunil Singh, consultant surgical oncology, Raj Medicity, Imphal and ii) Dr. Thingbaijam Dhanabir, consultant surgical oncologist, American oncology Institute Khabeisoi were examined as C.Ws.
18. After hearing the submissions and perusal of the pleadings alongwith documents filed thereto, this commission had framed the following issues for better adjudication of the present case in hand and they are Issues Whether the respondents have performed required/necessary diagnosis of the patient to know about the properties of fibrous tumor before operation/surgery?
Whether Frozen section biopsy, MRI and histopathological correlation tests of the patient was required before operation or not?
Whether the line of treatment would be similar in both the cases of malignant (cancerous) and non-malignant tumor patient?
Whether the respondents had committed medical negligence while giving medical treatment or not?
Whether the Complainant is entitled to the reliefs claimed for?
EVIDENCE
19. The testimonies of the P.W's are briefly discussed hereunder. The complainant have produced 6 (six) witnesses including himself.
As per the statements given in the form of Affidavit, the P.W. no. 1 stated that CT SCAN of whole Abdomen of Mrs. Sukham (Ongbi) Savitri Devi suggested to undergo MRI and Histo-Pathological Correlation but the O.Ps. failed to conduct the said tests before performing surgery of the deceased (Mrs. Sukham (Ongbi) Savitri Devi). O.P. No. 3 advised the Complainant to undergo surgery for removing fibrous tumor non malignant from the abdomen which is the cause of illness. O.P. No. 3 had advised that there was nothing to worry about the surgery as it would be done only to remove fibrous tumor non malignant from the abdomen and the same is not life threatening. On 28.09.2017 the wife of the Complainant was taken inside the Operation Theater and operation was started at 8:00 a.m. and concluded at about 2:00 p.m. of the same day. After the operation, O.P. No. 3 told the Complainant and his family members that the patient condition is very critical and he and his team are trying their best. Being suspicious to the nature and comment of the O.P. No. 3 on concluding the operation, the Complainant insisted for biopsy of the tumor which was taken out under the process of operation from the patient. Biopsy of the said tumor was done at Babina Diagnostics as well as SHIJA hospital and the results of the medical clinical test gave the impression of malignant haemangioperi-cytoma/solitary fibrous tumor, meaning thereby, the tumor has the property of cancer. On the day of operation i.e. 28.09.2017, at about 8:30 p.m., the patient was declared dead by the O.Ps and as per the Death Summary dated 28.09.2017, "the patient showed right hydro ureter with nephrosis and uterine fibroid and proceeded exploratory laparotomy on 28.09.2017 and on such it was found that large pelvic retro peritoneal tumor displacing the bladder and uterus anteriorly and rectum towards right with multiple large engaged blood vessels over surface of tumor with tumor attaching to pre sacral fascia not infiltrating to sacrum and laterally tumor attaching to lateral pelvic wall with thick Capsule. Intra operatively, tumor was mobilized and excised but there were multiple bleeding points and diffused ooze from tumor bed noted. Large amount of blood loss occurred. Large bleeding vessels were ligated but due to coagulopathy, there were uncontrolled diffused ooze from tumor bed., Intra-operatively, she went into shock and BP became unrecoverable. She was transfused with six units PRBC, three units of platelets, two units of FFP intra-operatively, Inj. Adrenaline and the noradrenaline infusion was started to maintain her B.P. Post operatively, patient was kept in GICU under ventilatory support. Central line insertion was done intra-operatively, arterial line insertion was done post operatively. Inj. Sodium bicarbonate and inj. Calcium gluconate were given in GICU. Total sixteen units of PRBC, twelve units of FFP, twelve units of platelets were given during her hospital stay". On seeing/analyzing the nature of treatment provided to the patient by the O.Ps and on going through medical clinical examination, reports and Death summary, it seems that the O.Ps had never attempted to know about the nature and property of tumor, what was tumor, cause of tumor and the outcome of the operation if tumor found to be malignant which were very important to be well known by the O.Ps before performing the operation, The O.Ps have failed to perform required and necessary diagnosis of the patient before operation. They have conducted the operation of the patient without knowing the nature and property of tumor which led to the death of the patient. If proper diagnosis were done, the line of treatment of the patient would be definitely different. Due to lack of proper diagnosis, wrong treatment was given to his wife by the O.Ps. leading to dead of his wife. Inspite of repeated request for frozen section Biopsy, in order to know the properties of tumor, the O.Ps refused and neglected such clinical test by saying not necessary. The O.P. conducted the said operation on the presumption that the tumor was non-malignant. If they know the tumor was/is malignant, they must have treated and examined before operating or the operation not done or delayed. The statement of the C.W. no. 1 is well supported by the Exhibits No. 2 to 16 and also by the statements of P.W. No. 2 to 6.
P.W. No. 2 stated that in the report of CT SCAN of whole abdomen it was suggested to undergo MRI and Histo Pathological Correlation but the Respondents never performed the said suggested tests. On 25.09.2017, the Respondent No. 3 asked to undergo surgery of her mother (Mrs. Sukham (Ongbi) Savitri Devi) for removing fibrous tumor: Respondent No. 3 also told to her father that there is/was nothing to worry about the surgery as it would be done only to remove "fibrous Tumor non malignant" from the abdomen which is the cause of ailment and had also further told that the operation was not life threatening. On concluding the operation by the Respondent No. 2 and 3, the Respondent No. 3 told her family members that the patient condition is very critical and he and his team are trying their best. On such, her father insisted for biopsy of the tumor which was taken out under the process of operation from her mother. Biopsy of the said tumor was done at Babina Diagnostics and Shija Hospitals and Research) Institute Pvt. Ltd. Health City, Langol. The test result of the medical clinical test of the said tumor gave the impression of Malignant Haemangioperi- cytoma/solitary fibrous tumor. On the very day of operation i.e. 28.09.2017 at about 8:30 p.m. her mother was declared dead by the O.Ps.
She also stated that O.P.s have never attempted to know and learnt about the natures and properties of tumor before operation. O.Ps. have failed to perform required and necessary diagnosis of the patient before operation. Respondents have conducted the operation without knowing the nature and properties of tumor which led to the sudden death of her mother. If proper diagnosis was done then the line of treatment of the patient would definitely different. Due to lack of proper diagnosis, wrong treatment was given to her mother by the O.Ps leading to death of her mother. Inspite of repeated requests for Frozen Section Biopsy by her father (Complainant), the O.Ps. refused and neglected such clinical test by saying not necessary. The O.Ps. conducted the said operation on the presumption that the tumor was non-malignant.
P.W. 3 also stated that in the report of CT SCAN of whole abdomen, it was suggested to undergo MRI and Histo-Pathological Correlation which the O.Ps. had never performed without any cogent reason. The O.P. No. 3 advised the patient and her parties for surgery for removing fibrous tumor and told them that there is/was nothing to worry about the surgery as it would be done only to remove "fibrous tumor non- malignant" from the abdomen which is the cause of ailment and was not life. threatening. On repeated query about the properties of the tumor, the O.P. No. 3 always have only one answer and that was non-malignant and O.P. No. 3 assured many times that the operation is not life threatening and nothing to worry when inquired again and again. It also further stated that on 28.09.2017 at about 7:00 a.m. the patient was taken inside the Operation Theatre and operation started at 8:00 a.m. and was concluded at about 2:00 p.m. of the same day. On concluding the operation, O.P. No. 3 told them that the patient's condition is very critical and he and his team are trying their best. Being suspicious to the nature and character shown by the Doctor, his father-in-law (Complainant) insisted for biopsy of the tumor which was taken out under the process of operation from the patient. Biopsy of the said tumor was done at Babina Diagnostics and Shija Hospitals and Research Institute Pvt. Ltd. Health City, Langol and the test results gave the impression of Malignant Haemangioperi- cytoma/solitary fibrous tumor. The O.Ps have never attempted to know, diagnose or learn about the nature and properties of tumor before the operation. They have failed to perform the required and necessary diagnosis of the patient before operation. They have conducted the operation without knowing the nature and properties of the tumor which led to the sudden death of the patient. If proper diagnosis were done then the line of treatment of the patient would definitely be different and the surgery might have been delayed or not done. Due to lack of proper diagnosis, wrong treatment was given to the patient by the O.Ps leading to untimely death of the patient. If the tumor was diagnosed as Malignant, the patient has not agreed to operation. Before operation of the patient, the Complainant has several times requested the O.Ps for performing Frozen Section Biopsy of the patient in order to know the properties of the tumor. Inspite of repeated requests for Frozen Section Biopsy of the tumor, the O.Ps refused and neglected such clinical test by saying "Not Necessary". The O.Ps. conducted the said operation on the presumption that the tumor was non-malignant.
P.W. 4 stated that there are other procedures or tests to find out as to whether the tumor is malignant or not before the operation.
P.W. 5 stated that by seeing the result of the CT Scan, it may be possible to know the nature of the tumor but in all the cases by looking the result of the CT Scan, nature of the tumor cannot be known. Before operation, even if both the CT Scan and MRI are conducted for the patient, it may not be able to say the exact nature of the tumor of the patient.
P.W. 6 stated that in the report of CT SCAN of Whole Abdomen it was suggested to undergo MRI and Histo-Pathological Correlation which the O.Ps. have never performed without any cogent reason. The O.P. No. 3 advised the patient and her parties for surgery for removing "fibrous tumor nature not specified" which is the cause of ailment. As told by the O.P. No. 3 that the tumor is simple and of not grave nature, the Complainant gave the consent for performing surgery for removing the tumor. On 28.09.2017, the operation of patient was jointly conducted by O.P. Nos. 2 and 3. Under repeated demands of the Complainant for biopsy of the tumor, biopsy of the said tumor was done at Babina Diagnostics and Shija Hospital and Research Institute Pvt. Ltd. Health City, Langol. The test results gave the impression of Malignant Haemangioperi-cytoma/solitary fibrous tumor. The O.Ps. have conducted the surgery of the patient without knowing the nature and property of the tumor. They have failed to perform necessary diagnosis of the patient for knowing the nature and property of the tumor before operation and hence given wrong treatment. They should have performed MRI or CT guided FNAC (Fine Needle Aspiration Cytology) test of the tumor before operation and also should have prepared for Frozen Section Biopsy of the said tumor during surgery before proceeding further as requested by the Complainant. The O.Ps. have never attempted to know, diagnose or learn about the nature and properties of tumor before operation. They have failed to perform the required and necessary diagnosis of the patient before operation. They have conducted the operation without knowing the nature and properties of the tumor which led to the sudden death of the patient. They have conducted the operation on the presumption that the tumor was non-malignant. If proper diagnosis were done then consent and preparation for treatment of the patient would definitely be different. Due to lack of proper diagnosis with inadequate preparation, treatment was given to the patient by the O.Ps. leading to untimely death of the patient which is a gross medical negligence committed on the part of the O.Ps. The witness further stated that it was also suggested in the "CT SCAN of whole Abdomen" of the patient to undergo Histo-Pathological Correlation meaning thereby pathological study of the tumor but the Respondents have never performed such vital medical clinical test even though facilities for such test were available in the state of Manipur.
20. The Opposite Parties have produced 4 (four) witnesses and they are i) Dr. Debendra Khwairakpam, Opp. No. 3 as D.W. No. 1 ii). Dr. S. Jugindra Opp. No. 2 as D.W. No. 2, iii) Dr. Alok Kumar Paharia as D.W. No. 3 and iv) Dr. Pradip Pokharia, Sonologist of Babina Diagnostics Soibam Leikai Ahongei Leirak, Imphal East, Porompat P.O. & P.S. Porompat, Manipur as D.W. No. 4.
D.W. No.1 in his examination in-chief deposed that he was consulted to see the patient Sukham Savitri Devi (Patient) on 25/09/2017 and was seen by him on the same day. he learnt that Sukham Savitri Devi was brought at Emergency casualty of Shija Hospital and Research Institute (SHRI), Langol on 22/09/2017 with complaints of right flank pain associated with fever, nausea and difficulty micturition. She had ultrasound report done at Babina Diagnostic on 22/09/2017 with a diagnosis of right hydroureteronephrosis and uterine fibroid. She was submitted under Dr. Somorendro Paonam. Urologist at SHRI. Patient was investigated and on 23/09/2017 gynecology consutation was also done to evaluate the case. The Opposite Party No. 3 evaluated the case thoroughly and discussed the possibilities and treatment options with her daughter on the day the first examined her on 25/09/2017. On 26/09/2017 the Opposite Parties explained the condition of the patient to the husband and son-in-law and sought their consent for the treatment and surgery. Because of the position and rarity of the tumor they were given option to go outside Manipur if they so desired.
The patient was taken up for surgery on 28/09/2017 morning right ureteric catheterization and left ureteric stenting were done for easy identification of the ureters. Exploratory laparotomy was done. On opening the abdomen the large tumor was confirmed behind the return and it appeared obviously malignant but there was no spread to other areas of the abdomen hence they have decided to proceed for tumor removal.
During cross examination D.W. No. 1 stated that other than the tests i.e. clinical examination as well as CT Scan report available for the patient, he did not ask for any further tests. If Fine Needle Aspiration Cytology (FNAC) is required to be conducted for the patient, it should be conducted before operation. By means of FNAC test, whether the tumor is malignant or not can be ascertained. FNAC is to be conducted by Pathologist on the advice of a Surgeon. Whether a tumor is malignant or not cannot be ascertained by the naked eyes, its needs to be ascertained by Biopsy.
D.W. No. 2 namely Dr. S. Jugindra, Opposite party No. 2 stated in his examination in-chief that he joined the surgery of patient Sukham Savitri Devi with Dr. Debendra Khwairakpam Opp. Party No. 3. During surgery they found that the tumor was behind rectum and appeared malignant with no evidence of spread. He assisted Dr. Devendra Kh. in removing the tumor and in controlling the bleeding from tumor bed but could not arrest the continuous ooze from the bed. They decided to pressure pack the pelvis which is often done from such situation.
In the post operative ICU, He explained the condition of the patient to the relatives and all attempts were made to correct the falling blood pressure but her succumbed to the shock.
During cross examination D.W. No. 2 stated that in the CT Scan report nothing is mentioned about the malignancy of the tumor of the patient. FNAC test could show the malignancy of the tumor but not always. Clinical examinations for ascertaining the nature of the tumor was not conducted before the operation of the patient. D.W. No. 3 admitted that the final test of a tumor to ascertain whether it is malignant or not is only by biopsy. D.W. No. 3 also deposed that the malignancy of a tumor could be confirmed by the following means/manner. i) place of the tumour. ii) spread of the tumour. iii) any adverse effect it has in the body. iv) and also by Biopsy. Final diagnosis of a tumour is the Histopathological examination.
Histopathological examination was not conducted/performed before the operation of the patient but it was performed after the operation.
D.W. No. 3 Dr. Alok Kumar paharia, Sonologist of Babina Diagnostics Soibam Leikai Ahongei Leirak, Imphal East, Porompat P.O. & P.S. Porompat, Manipur deposed that on 22/09/2017 at 7.46 a.m. he conducted ultrasonography of the deceased patient and the gross ultrasound finding was right hydrouretronephrosis and Ulterine SOL in the posterior wall measuring approximately 144x 125 mm with degenerative changes.
During cross examination D.W No. 3 stated that he did not forward the report of ultrasound of the deceased patient to the Shija Hospital.
D.W. No. 4 in his examination in-chief deposed that the CT scan whole abdomen and KUB of the deceased patient were done by him at Shija Hospital Research Institute at Langol. His findings, impression and suggestion for MRI shown in the report are all true and correct.
21. The commission also examined two witnesses namely i) Dr. Lourembam Sunil Singh as C.W. No. 1 and ii) Dr. Thangjam Dhanabir as C.W. No. 2.
C.W. No. 1 in his examination in-chief stated that MRI of pelvis of the patient would be required for further treatment to ascertain additional information other than CT scan since the involvement of soft tissue structure life nerves, mesorectum which could not be clearly ascertained during CT scan. To ascertain the malignancy of the tumor the process of tissue diagnosis is required but not mandatory in all cases of pre- sacral tumor. If the tumor can be removed as whole, the process may be conducted after informing the patient party about the same and also after getting informed consent of the patient and patient party. The possibility of malignancy would be informed to the patient and patient party and the consent thereof would be obtained prior to surgery. The C.W. No. 1 further deposed that he has given the above statement based on medical Ethics such as Medical Professional Ethics adopted by National Medical Council.
During cross examination by the complainant, C.W. No. 1 replied that in an elective case, without the sign of intestinal obstruction/ Bleeding in a case of Presacral Tumor-the work up for A) Malignant nature of tumor. B) Metastatic Nature would be necessary for evaluation of metastatic. The following questions and answers during cross examination of C.W. No.1 are reproduced herein below as the same would be material during adjudication and they are:-
Q1. Whether MRI above CT scan is required for proper Pre-operative planning and counselling for a patient with Presacral Tumor?
Ans:- In my opinion, MRI is required.
Q2. Whether Diagnosis, Staging and planning and necessary for performing Cancer Surgery?
Ans:- Yes.
The questions and answers during cross examination of C.W. No. 1 by the learned counsel for the Opposite Parties are reproduced herein below as the same would be material during adjudication and they are:-
Q1. Whether FNAC/ CORE NEEDLE BIOPSY is technically feasible or not?
Ans:- Need to be discussed with the Radiologist. An intervention required informed consent from the patient. It may be verbal or written.
In case of above stated FNAC/ CORE NEEDLE BIOPSY, written consent is mandatory to make a share decision.
Q2. Whether the surgical approach without obtaining pre operation tissue diagnosis (FNAC/ CORE NEEDLE BIOPSY) would remain the same irrespective if it turn out be malignant or not malignant?
Ans:- Need CT film evaluation.
Treatment option discussion between treating surgeon and the patient. As such, I can't give my opinion.
C.W. No. 1 also volunteered that treatment for non malignant and non malignant are not same.
22. C.W. No. 2 namely Dr. Th. Dhanabir in his examination in-chief deposed that in general, for a tumor to operate before surgery, we need to confirm the tumor diagnosis by the following investigation like i) CT scan, ii) MRI, iii) BIOPSY and iv) staging workup and other tumor markers.
In respect of suspected malignancy, requires test are the above investigation but in case of emergency some surgery can be performed to save the patient without all the recommended investigations.
My opinion is based on standard guidelines of NCCN guidelines.
Before conducting surgery in respect of suspected malignant tumor, information shall be given to the patient party and also procure their inform written consent.
The C.W. No. 2 further deposed that their shall be separate treatment for malignant and non malignant tumor. The patient parties are required to be informed any change in the condition of patient. In case of emergency the concern Doctor can take up necessary life saving treatment without informing the patient party may be they are not immediately available.
During cross examination by the learned counsel for the complainant, C.W. No.2 in an elective case, without the sign of intestinal obstruction/ Bleeding in a case of Presacral Tumor-the work up for A) Malignant nature of tumor. B) Metastatic Nature would be necessary for evaluation of metastatic. If the malignant nature of the tumor is confirm then the metastatic nature is to be proceeded and if the malignant nature of the tumor is not confirmed then workup for the metastatic is not to be proceeded.
The following questions and answers during cross examination of C.W. No.2 are reproduced herein below as the same would be material during adjudication and they are:-
Q1. Whether MRI above CT scan is required for proper Pre-operative planning and counselling for a patient with Presacral Tumor?
Ans:- Not always necessary but MRI has come better sensitivity and specifiability. If CT scan report recommended for MRI, then MRI is necessary and if not then MRI is not necessary.
Q2. Whether Diagnosis, Staging and Planning and necessary for performing Cancer Surgery?
Ans:- Yes.
During cross examination by the ld. Counsel for the Opp. Parties C.W. No. 2 stated that in his opinion in the present case pre-operative core biopsy or FNAC can be done by intervention of Radiologist or other trained person to confirm the diagnosis.
Findings and Observations
23. We have heard the arguments of the Ld. Counsel for the parties. The Ld. Counsel for the complainant has submitted that on 22/09/2017 the deceased patient attended Shija Hospital and Research Institute Pvt. Ltd. Health City, Langol with the complaint of having right frank pain with mild figure. She was admitted to the said hospital on Sunday. As advised she underwent various clinical examinations such as i) City scan of whole abdomen (exhibit P/2), ii) Kidney function test (exhibit P/3), iii) Urine RE test (exhibit P/4), iv) Haematology (exhibit P/5), v) complete Haemogram (exhibit P/6), vi) Liver function test (exhibit P/7), vii) Kidney function test (exhibit P/7), viii) Culture and sensitivity Urine (exhibit P/8), ix) HBs Ag (Australian Antigen) (exhibit P/9), x) HIV Antibody (exhibit P/10), xi) HCV Antibody (exhibit P/11), xii) Histopathology Exam (Big) (exhibit P/12), xiii) Histopathology (exhibit P/13. The results of the above stated medical clinical test reports were all normal. In regard to the report of 'City scan of whole abdomen' it suggested to undergo MRI and Histo-pathological correlation but the Opp. Parties did not conduct the said tests before performing surgery of the deceased patient. Based on the above stated clinical reports the deceased patient was performed surgery for removal of tumor on 28/09/2017. Just after the conclusion of the surgery the Opp. Party No. 3 told the complainant and his family members that patient's condition was very critical and he and his team were trying their best. Being suspicious to the comment of the Opp. Party No. 3, the complainant insisted for biopsy of the tumor which was taken out during surgery from the patient. Thereafter BIOPSY of the said tumor was conducted at Babina Diagnostics as well as at the Shija Hospital and Research Insitute Pvt. Ltd. Health City, Langol. Both the clinical tests of the said tumor gave the impression of malignant haemangioperi-cytoma/solitary fibrous tumor, meaning thereby, the tumor has the property of cancer. the deceased patient was declared dead at about 8.30 p.m. of 28/09/2017. But the 'death Summary' (exhibit P/14) was issued only on 04/10/2017 after repeated demands from the side of the complainant.
Now the question arises for determination is whether above stated medical clinical tests would be sufficient to ascertain the properties of fibrous tumor before the operations/ surgery. C.W. No. 1 in his examination in-chief stated that MRI of pelvis of the patient would be required for further treatment to ascertain additional information other than CT scan since the involvement of soft tissue structure life nerves, mesorectum which could not be clearly ascertained during CT scan. To ascertain the malignancy of the tumor the process of tissue diagnosis is required but not mandatory in all cases of pre- sacral tumor. If the tumor can be removed as whole, the process may be conducted after informing the patient party about the same and also after getting informed consent of the patient and patient party. The possibility of malignancy would be informed to the patient and patient party and the consent thereof would be obtained prior to surgery. The C.W. No. 1 further deposed that he has given the above statement based on medical Ethics such as 'Medical Professional Ethics' adopted by National Medical Council.
During cross examination by the complainant, C.W. No. 1 replied that in an elective case, without the sign of intestinal obstruction/ Bleeding in a case of Presacral Tumor-the work up for A) Malignant nature of tumor. B) Metastatic Nature would be necessary for evaluation of metastatic. The following questions and answers during cross examination of C.W. No.1 are reproduced herein below as the same would be material during adjudication and they are:-
Q1. Whether MRI above CT scan is required for proper Pre-operative planning and counselling for a patient with Presacral Tumor?
Ans:- In my opinion, MRI is required.
Q2. Whether Diagnosis, Staging and planning and necessary for performing Cancer Surgery?
Ans:- Yes.
The questions and answers during cross examination of C.W. No. 1 by the learned counsel for the Opposite Parties are reproduced herein below as the same would be material during adjudication and they are:-
Q1. Whether FNAC/ CORE NEEDLE BIOPSY is technically feasible or not?
Ans:- Need to be discussed with the Radiologist. An intervention required informed consent from the patient. It may be verbal or written.
In case of above stated FNAC/ CORE NEEDLE BIOPSY, written consent is mandatory to make a share decision.
Q2. Whether the surgical approach without obtaining pre operation tissue diagnosis (FNAC/ CORE NEEDLE BIOPSY) would remain the same irrespective if it turn out be malignant or not malignant?
Ans:- Need CT film evaluation.
Treatment option discussion between treating surgeon and the patient. As such, I can't give my opinion.
C.W. No. 1 also volunteered that treatment for non malignant and non malignant are not same.
22. C.W. No. 2 namely Dr. Th. Dhanabir in his examination in-chief deposed that in general, for a tumor to operate before surgery, we need to confirm the tumor diagnosis by the following investigation like
i) CT scan, ii) MRI, iii) BIOPSY and iv) staging workup and other tumor markers.
In respect of suspected malignancy, requires test are the above investigation but in case of emergency some surgery can be performed to save the patient without all the recommended investigations.
My opinion is based on standard guidelines of NCCN guidelines.
Before conducting surgery in respect of suspected malignant tumor, information shall be given to the patient party and also procure their inform written consent.
The C.W. No. 2 further deposed that their shall be separate treatment for malignant and non malignant tumor. The patient parties are required to be informed any change in the condition of patient. In case of emergency the concerned Doctor can take up necessary life saving treatment without informing the patient party may be they are not immediately available.
During cross examination by the learned counsel for the complainant, C.W. No.2 stated that in an elective case, without the sign of intestinal obstruction/ Bleeding in a case of Presacral Tumor-the work up for A) Malignant nature of tumor. B) Metastatic Nature would be necessary for evaluation of metastatic. If the malignant nature of the tumor is confirmed then the metastatic nature is to be proceeded and if the malignant nature of the tumor is not confirmed then workup for the metastatic is not to be proceeded.
The following questions and answers during cross examination of C.W. No.2 are reproduced herein below as the same would be material during adjudication and they are:-
Q1. Whether MRI above CT scan is required for proper Pre-operative planning and counselling for a patient with Presacral Tumor?
Ans:- Not always necessary but MRI has come better sensitivity and specifiability. If CT scan report recommended for MRI, then MRI is necessary and if not then MRI is not necessary.
Q2. Whether Diagnosis, Staging and Planning and necessary for performing Cancer Surgery?
Ans:- Yes.
During cross examination by the ld. Counsel for the Opp. Parties C.W. No. 2 stated that in his opinion in the present case pre-operative core biopsy or FNAC can be done by intervention of Radiologist or other trained person to confirm the diagnosis.
24. Now, in addition to the above stated evidence of C.Ws. we would refer to the universally accepted protocols in reference to the tests to be conducted to ascertain the properties of fibrous tumor before operation. Test for solitary fibrous tumor might include MRI, X-ray, CT, ultra-sound and position emission tomography, also called a PET scan. Removing a sample of tissue for testing, also called biopsy. A biopsy is a procedure to remove a sample of tissue for testing in a laboratory.
25. Whether frozen section biopsy, MRI and histo-pathological correlation tests of the patient was required before operation or not?
Frozen Section Biopsy also known as cryosection is a pathological laboratory procedure to perform rapid microscopic analysis of a specimen and it is used often in oncological surgery. It is a procedure that allows a surgeon to quickly diagnose as suspicious mass during surgery by examining sample of tissue under a microscope. During the frozen section procedure the surgeon removes a portion of the tissue mass. This biopsy is then given to pathologist who is a doctor to examine tissues and used laboratory test to make a diagnosis. The method has several advantages, namely (a) it takes up much less time then the paraffin and celloidin methods (b) since the tissue is not dehydratate, the cells retain a life-like appearance with little sinking and (c) the tissues can be sectioned, if necessary without any fixation at all.
The cap recommendation for a frozen section from the beginning to end is 15 (fifteen) minutes. the association director of anatomic Pathology estimated that a minimum time for a frozen section performed without other distractions is about 20 minutes. The difference is accounted for in part by the fact that residents and fellows may be involved in reviewing the case in a sequential fashion. Frozen Section Biopsy is an intra operative procedure. before obtaining the result of frozen section of the tumor of the patient, the operation should not be completed. The continuation of operation would depend on the result of the biopsy. If it is malignant according to the result to the frozen section biopsy test, a different procedure for malignancy and benign are to be adopted.
Now, the question arises for discussion would be whether MRI of the patient would be required before operation to remove the fibrous tumor of the deceased patient. The report of the CT Scan of the whole abdomen of deceased patient (exhibit P/2) suggested/ indicated to undergo MRI and Histo-pathological correlation.
As per universally protocol regarding the above stated MRI and Histo-pathological correlation test, we may refer to statement of C.W. No.1 who deposed that the MRI in addition to CT Scan would be required for proper pre-operative planning and counselling for a patient with presacral tumor. C.W. No. 1 also volunteered that treatment for malignant and non malignant are not the same.
C.W. No. 2 also gave his evidence stating that there is necessity to confirm the tumor diagnosis before surgery by undergoing.
i) CT scan, ii) MRI, iii) BIOPSY and iv) staging workup and other tumor markers but in case of emergency some surgery can be performed without all the above stated recommended investigation to save the life of the patient. The C.W. No. 2 gave his opinion based on "medical professional Ethics" adopted by National Medical Council that MRI would be necessary in addition to the CT scan report, if CT Scan report recommended for MRI.
A Histo-pathological report from a Human surgery is a detailed description of the tissue removed during surgery which is examined by a pathologist to help to determine nature of tumor. Histo-pathological is dimension is essential to allow for a period prognostication and tailored therapy, both surgical and adjuvant. Tumor histology can predict both risk of local recurrence and distance metastasis.
In view of the discussion above, we are of the view that though the MRI and Histo pathological examination were not performed though indicated in the CT Scan report, the Frozen section Biopsy which is an intra-operative procedure should be conducted and before obtaining the result of the Frozen Section of the tumor of the patient, operation should not be completed.
26. Now, we shall discuss the issue whether the line of treatment would be similar in both the cases of malignant (cancerous) and non malignant tumor patient.
In the present case during operation and prior to operation of the deceased patient, the Opp. Party never attempted to ascertain the nature and property of tumor, what was tumor, cause of tumor and outcome of the operation if tumor is found to be malignant which were very important questions to be well ascertained before performing the operation. The Opp. parties have failed to perform the required and necessary diagnosis of the patient before operation. The Opp. Parties have conducted the operation of the patient without knowing the nature and property of the tumor which led to the death of the patient. If proper diagnosis was done the line of treatment of the patient would be definitely different. Due to lack of proper diagnosis, wrong treatment was given to the deceased patient by the opp. Parties since the opp. Parties conducted the said operation on the presumption that the tumor was non malignant. If the Opp. Parties knew that tumor was malignant before/ during operation, the operation would not be conducted and completed as done by the Opp. parties.
There would be a different treatment for the case of malignant and non-malignant tumor of patient. Before obtaining the result of the Frozen Section of the tumor of patient, operation should not be completed. Further continuation of operation depends on the result of the Frozen Section Biopsy.
27. The most important question now to be discussed and decided is whether opp. Parties have committed medical negligence during medical treatment of the deceased patient or not. In this regard it would be appropriate to refer to the laws relied on by the parties in arriving at just and judicial finding.
i) In the case of post Graduate Institute of Medical Education & Research (PGI) -V- Mamta Rani @ Babli reported in (2017) 2CPJ 177, it was held that failure to diagnose amounts to medical malignant.
ii) In the case of Nizam Institute of Medical Sciences -V- Prasanth S. Dhananka reported in (2009) 6 SCC-1 it was held that Once the initial burden of proof is discharged by Complainant, the onus shifts to Respondent to satisfy the court that there was no lack of care, etc.
iii) In the case of Chandigarh Nursing Hone & ans. -V- Sukhdeep Kaur reported in (2022) A.I.R. (SC) 4987 it was held that wrong diagnosis & wrong treatment amounts to medical negligence.
iv) In the case of Dr. Laxman Balkrishna Joshi. -V- Dr. Trimbak Bapu Godbole & ans. reported in (1969) A.I.R. (SC) 384 it was held that medical negligence.
v) In the case of Kusum Sharma and other vs Batra Hospital and Medical Centre and other (2010) 3 SCC 480 it was observed that :-
"89. On scrutiny of the leading cases of medical negligence both in our country and other countries specially 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 is 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.
VI. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he 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 unnecessarily 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 particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners.
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 In the case of Hucks v. Cole & Anr. (1968) 118 New LJ 469, Lord Denning speaking for the court observed as under:-
" a medical practitioner was not to be held liable simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference of another. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field."
In another leading case Maynard v. West Midlands Regional Health Authority the words of Lord President (Clyde) in Hunter v. Hanley, 1955 SLT 213 were referred to and quoted as under:-
"In the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and one man clearly is not negligent merely because his conclusion differs from that of other professional men... 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..."
28. Keeping in view the above principles of law, this Commission is of the opinion that there is negligence on the part of the Opp.Parties and there is deficiency in rendering the much required medical service which is the pre- requisite of Doctors and health professionals. This negligence and deficiency in service on the part of the Opp. Parties resulted in avoidable death of complainant's wife namely late Sukham ongbi Savitri Devi in as much as the Opp. Parties have conducted operation of the deceased patient without knowing nature and property of the tumor. If the proper diagnosis were done, the line of treatment of the deceased patient would be definitely different. due to lack of proper diagnosis wrong treatment was given to the deceased patient. The Opp. Parties conducted the said operation on the presumption that the tumor was non malignant. If they knew that the tumor was malignant, they must have treated the deceased patient in different way or the operation might not be done or the operation might be delayed or should not be completed. In such circumstances we are of the Opp. Parties have committed medical negligence while performing the operation on the deceased patient due to deficiency in service.
Compensation
29. Now, we are on the point of compensation to be awarded. a sum of Rs. 50,00,000/- (Rupees Fifty Lakh) has been claimed for medical negligence, deficiency in service and loss of life of the complainant's wife. In addition the complainant has claimed the amount which was incurred in the treatment of the complainant's wife which the Opp. Parties received through FCI medical Scheme and costs of the litigation.
It may be noted that the compensation amount as claimed by the complainant has never been denied by the Opp. Parties in their pleadings or during evidence.
30. The complainant has filed IP Breakup details dated 28/09//2017 (exhibit P/16) towards medical expenses for treatment of his deceased wife Mrs. Sukham Ongbi Savitri Devi. The total estimate of the medical expenses according to the Exhibit P/7 would be Rs. 161,431.70/- (Rupees One Lakhs Sixtyone Thousand Four Hundred Thirty One and Seventy Paisa) only.
31. Loss of Income of the deceased patient: As per records the deceased patient was aged about 57 years, at the time of her death. The life span of the deceased wife in this days would be justifiably fixed at approximately 80 (eighty) years. Thus the deceased patient would continue to live for about 13 (thirteen) years if she had survived. The complainant has not pleaded any specific source of income of his deceased wife at the relevant time of her death. Thus it would be justified to estimate the monthly income of the complainant at Rs. 220/-X12/-=2640 i.e., at the rate of Rupees 220 only which is the daily wage of a unskilled labour as specified under notification No. 5/289/91-Lab (pt. 1) dated 27/12/2016 issued by the Additional Chief Secretary (Labour & employment), Government of Manipur. Thus the total estimate of the loss incurred due to negligence and deficiency in service of Opp. Parties as claimed by the complainant would be estimated at Rs. 2640X12=Rs.31680 per annum X 23=728640 (Rupees Seven Lakh twentyeight Thousand and Six Hundred and forty).
32. The Apex Court in the case of state of Haryana & Anr.-Vs- Jasbir Kaur & Ors. (2003) 7 SCC 484 held that the Apex Court in State of Haryana & Anr. vs. Jasbir Kaur & Ors. (2003)7 SCC 484 held that there can be no golden rule applicable to all cases for measuring the value of human life or a limb. Measure of damages cannot be arrived at by precise mathematical calculations. Every method or mode adopted for assessing compensation has to be considered in the background of "just" compensation which is the pivotal. The expression "just" denotes equitability, fairness, reasonableness and non-arbitrariness. These are two types of damages viz. Pecuniary Damages (Special damages) and Non-pecuniary Damages (General Damages) (ref.: Raj Kumar vs. Ajay Kumar & Ors. (2011)1 SCC 343). In the present case, what would be the "just" compensation in the light of the decision of the Apex Court in State of Haryana & Anr vs. Jasbir Kaur & Ors (2003)7 SCC 484, is the compensation which is equitable, fair, reasonable and non-arbitrary.
33. Keeping in view the above decision of the Apex Court as to the amount of compensation, we are of the considered view that "Just" compensation in summary under deferent heads are presented hereunder:-
Loss of income of the deceased Rs. 7,28,640 For medical treatment Rs. 161,431.70 Pain and suffering Rs. 10,00,000 Loss of consortium Rs. 1,00,000 Cost of litigation Rs. 1,00,000 Total Rs. 20,90,071.70
34. Therefore, a total sum of Rs. 20,90,071.70/- (twenty lakhs ninety thousands seventy one and seventy peisa) only is the compensation awarded in favour of the complainant. It can be rounded off to Rs. 20,90,000/- (twenty lakhs ninety thousands) only Opposite Parties are jointly and severally liable to pay the said compensation within a period of 3(three) months from the date of passing this Judgment and Order. The said amount of compensation shall be deposited in the Registry of this Commission and Registry shall release the said amount of compensation to the complainant on being identified by a counsel known to this Commission. In case of failure to deposit, the said amount within the period indicated above there shall be interest @ of 9% per annum from the date of expiry of the period for depositing the amount mentioned above.
35. The present Complaint case is allowed to the extent indicated above.
36. The arguments in this case were heard on 05/01/2024 and the orders were reserved. Now, the order be communicated forthwith to the parties free of costs. Also the order be uploaded in the official website of the Commission for perusal of the parties.
The complaint could not be decided within the statutory period because of outbreak of Covid-19, Manipur Violence, non - availability of requisite benches and shortage of staff in the State Commission, for which the State Government has already been requested on several occasions but with no effect till date.
37. File be consigned in the record room. [HON'BLE MR. Th. Saimon] PRESIDING MEMBER [HON'BLE MRS. M. Pemila] MEMBER [HON'BLE MR. N. Banikumar Singh] MEMBER