State Consumer Disputes Redressal Commission
Rajwant Singh vs Sacred Heart Hospital on 20 October, 2015
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
Consumer Complaint No. 103 of 2013
Date of institution: 25.9.2013
Date of Decision: 20.10.2015
Rajwant Singh s/o Sh. Phuman Singh, resident of House No. 693-C, Type-
II, Rail Coach Factory, Kapurthala, District Kapurthala, Punjab.
.....Complainant
Versus
1. Sacred Heart Hospital, Maqsudan, G.T. Road, Jallandhar City,
District Jallandhar through its Director.
2. Dr. Rupinder Bhargava, son of not known, Cancer Specialist C/o
Sacred Heart Hospital, Maqsudan, G.T. Road, Jallandhar City,
District Jallandhar.
3. The Oriental Insurance Company Limited, R/o SCO 109-110,
Surindera Building, Sector 17-D, Chandigarh-160017 through its
Divisional Manager/Authorized Signatory.
4. AICL (Apex Ins. Consultant Ltd.), Regd. Office, 54, Vinoba Puri,
Lajpat Nagar-II, New Delhi-110024, through its Manager/Authorized
Signatory.
5. United India Insurance Company Limited, 54, Janpath, Connaught
Place, New Delhi - through its Manager/Authorized Signatory.
.....Opposite Parties
Consumer Complaint under Section 17 of the
Consumer Protection Act, 1986.
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member
Shri Jasbir Singh Gill, Member
Mrs. Surinder Pal Kaur, Member
Consumer Complaint No. 103 of 2013 2
Present:-
For complainant: Sh. J.S. Saneta, Advocate
For OP Nos. 1&2 : Sh. Munish Goel, Advocate
For OP No. 3 : Sh. J.P. Nahar, Advocate
For OP Nos. 4&5 : Sh. Vaibhav Narang, Advocate
Gurcharan Singh Saran, Presiding Judicial Member
ORDER
Complainant Rajwant Singh(hereinafter called "complainant") has filed the present complaint under Section 17 of the Consumer Protection Act, 1986 (for short 'the Act') against the opposite parties on the averments that Smt. Surinder Kaur wife of complainant was having problem in the stomach and she had got done CT Scan on 2.5.2011 from Amarjit C.T. Scan and Diagnostic Centre, who showed problem regarding enlarged uterus and accordingly, she had approached Lala Lajpat Rai Hospital, RCF, Kapurthala. The said hospital referred to OP Hospital. On the basis of C.T. Scan, OP hospital observed her suffering from Spindle Cell Sarcoma. She was admitted to the OP hospital on 3.5.2011 and operated on 4.5.2011. Biopsy was taken and the report of Biopsy dated 6.5.2011 is as under:-
"Homologous Spindle Cell Sarcoma [Leiomyomatous] with involvement of 2/3rd Depth of Myometrium.
Adnexae, All the twelve pelvic and paraaortic nodes, omentum have no involvement."
She was discharged on 18.5.2011 and OP No. 2 had advised her to come for follow up treatment after discharge. She had been visiting to op No. 2 as OPD patient on 25.5.2011, 31.5.2011, 11.6.2011, Consumer Complaint No. 103 of 2013 3 25.6.2011, 18.7.2011, 30.9.2011, 3.11.2011, 22.12.2011. However, after the operation, the deceased was not having any relief from the said treatment and she again reported to Lala Lajpat Rai Hospital, RCF, Kapurthala from where she was referred to Patel Hospital, Jallandhar on 28.12.2011. CT Scan of the deceased was got done by Patel Hospital on 29.12.2011 and patient was having shown having case of Spindle Cell Sarcoma Uterus and diagnose was stage IV. She was given Chemotherapy treatment on 4.1.2012 and then on 11.1.2012, 3.2.2012, 10.2.2012, 24.2.2012, 2.3.2012, 16.3.2012, 6.4.2012, 27.4.2012 and ultimately, she expired on 10.8.2012 due to the negligent behaviour and not providing proper treatment by OP hospital. When the deceased was detected as Spindle Cell Sarcoma Uterus in the report dated 6.5.2011, the best treatment of controlling the disease was Chemotherapy or radiation, which was not provided by OP hospital for a period of more than 7 months i.e. date of discharge 25.5.2011 to 22.12.2011. Complainants spent a sum of more than Rs. 15 lacs on her treatment. It is a case of medical negligence and deficiency in services on the part of Ops. Hence, the complaint with a direction to Ops to compensate complainant for a sum of Rs. 35 lacs alongwith interest @ 18% p.a.
2. The complaint was contested by Ops. OP Nos. 1 & 2 in their written reply submitted that a resolution was passed by OP No. 1 vide which Sr. Grace Poomkudy Administrator of OP No. 1 was authorised to file the written reply on behalf of OP Nos. 1 & 2. OP No. 1 had taken the insurance policy from Oriental Insurance Company OP No. 3 for the period 22.6.2010 to 21.6.2011 and 22.6.2011 to Consumer Complaint No. 103 of 2013 4 21.6.2012 and OP No. 2 had taken the policy through AICL from UIIC OP Nos. 4 & 5 for the period 1.9.2010 to 31.8.2011. Preliminary objections were taken that the complaint is false, frivolous and as such, liable to be dismissed; the complaint is not maintainable against these OPs as it was filed by the husband and not as legal heir of Surinder Kaur deceased. She left with two children but the complaint was not filed by them. Complainant has failed to plead in which capacity, he has filed the present complaint. No expert opinion has been placed on the record that there was any medical negligence on the part of these OPs. Complainant has not given any break up how he is entitled for compensation of Rs. 35 lacs. In view of the judgment in "Martin F. D'Souza Vs Mohd. Ishfaq", 2009 (2) RCR (Criminal) 64, complaint is not maintainable unless prima-facie evidence is produced before the Forum and a credible opinion given by a competent Doctor. The Doctor cannot be held negligent until and unless there is some grave irregularity in the procedure followed by the Doctor. Patient Surinder Kaur aged 46 years had reported to the OP in May, 2011 with complaint of the abnormal bleeding having 2 male children 18 years and 14 years. She was not a case of DM/HT. CT Scan showed enlarged uterus with mass formation pyometa and surgical intervention was planned and exploratory laparotomy was done after explaining to the patient and their relatives. The operation was successfully done and patient remained in the hospital upto 18.5.2011 and was discharged under satisfactory condition. The patient had reported the hospital for follow up on 23.5.2011 when she was advised observation/follow up, on 31.5.2011 wound well healed, Consumer Complaint No. 103 of 2013 5 on 11.6.2011 some medicines were prescribed, on 27.6.2011 no complaints post operative - routine follow up and medicines were prescribed, on 18.7.2011 abdomen soft, on 13.8.2011 abdomen soft (patient doing well) and Ultra sound abdomen was found normal. On 30.9.2011 and 3.11.2011 some medicines were prescribed. On 22.12.2011 P/v - 2 x 4 cm mobile mass above vagina advised CT Scan. She was thoroughly checked up and was found Spinddle Cell Sarcoma. As per the text book 'Gynaecological Oncology', adjuvant radiation is unlikely to offer any benefit within EORTC 55874 study. There was no significant effect of radiation on local control. As per the latest study from New Cancer Book 2012 that Leiomyosarcoms are aggressive tumors with recurrence rate of 50 to 70% even at early stages and surgery remained the mainstay of treatment. However, there is controversy regarding the need of oophorectomey and or lymph node dissection for each subtipy of uterine sarcoma. In general, hysterectomy including oophorectomy with or without lymph node dissection is the treatment of choice. Simply because a patient developed problem again does not mean that the Doctor be held liable for medical negligence; the complaint has been filed just to extract money from Ops; the complaint is false and frivolous, liable to be dismissed with special costs; complaint is barred by limitation and that the complaint is not maintainable as complainant has not impleaded Lala Lajpat Rai Hospital and Patel Hospital as a party. On merits, the averments as stated above in preliminary objections were reiterated. It was submitted that Ops had given the proper treatment, which was possible at that time. There was no medical negligence on Consumer Complaint No. 103 of 2013 6 the part of OPs. They cannot be held liable merely because the disease had reoccurred, it can reoccur in 50 to 70% cases and for that Ops cannot be held liable for medical negligence. Complaint is without merit and it be dismissed.
3. OP No. 3 in its reply took the preliminary objections that complainant has not impleaded Patel Hospital, Jallandhar and Lala Lajpat Rai Hospital, Kapurthala, who were necessary parties and that the amount of treatment comes to Rs. 10,33,561.96p but complainant has claimed Rs. 35 lacs. On merits, it was submitted that there was no privity of contract between complainant and OP No. 3, therefore, there was no cause of action for complainant to file the complaint against Op No. 3. However, it was admitted that OP No. 3 is insurer of OP No. 1 having contractual liability upto Rs. 30 lacs, subject to terms and conditions of the policy effective from 22.6.2011 to 21.6.2012 having compulsory excess of 0.25% of indemnity limit, subject to maximum of Rs. 1,000/- and maximum of Rs. 1 lac. It was submitted that there is no merit in the complaint against this OP, it be dismissed.
4. Op No. 4 in its reply has submitted that this OP is Apex Insurance Consultant Limited and has no role for treatment of the patient. There is no document on the record which may ensure that this Op was necessary party, therefore, complaint was wrongly filed against this Op and liable to be dismissed under Section 26 of the Act.
5. Op No. 5 in its reply has stated that this OP had issued Professional Indemnity Dr. Policy No. 040100/46/10/35/00002633 Consumer Complaint No. 103 of 2013 7 effective from 1.9.2010 to 31.8.2011 in respect of OP No. 2 and this OP accepts the written statement of OP No. 2 in totality.
6. The parties tendered their respective evidence in support of their pleadings.
7. In support of his allegations, complainant had tendered into evidence affidavit of Rajwant Singh Ex. CW-1/A, CT Scan report Ex. C-1, medical referred slip Ex. C-2, lab report Ex. C-3, discharge slip Ex. C-4, prescription slips Exs. C-5 to 8, referred slip Ex. C-9, CT Scan Ex. C-10, Chemotherapy Exs. C-11 to 19, prescription slips Exs. C-20 to 24, death certificate Ex. C-25, study treatment Exs. C-26 & 27, identity card Ex. C-28, ration card Ex. C-29, medical bills Exs. C-30 to 50. OP Nos. 1 & 2 had tendered into evidence affidavit of Sr. Grace Poomkudy Ex. OP-A, affidavit of Dr. Rupinder Bhargava Ex. Op-B, resolution Ex. Op-1, certificates Exs. Op-2 to 8, insurance policies Ex. OP-9 to 13, CT Scan report Ex. C-14, Anaesthesia record Ex. Op-15, case notes Ex. Op-16, consultation/medical fitness form Ex. Op-17, test report Ex. Op-18, pre-operative check list Ex. Op-19, consent form Ex. Op-16, operation notes Ex. Op-21, hospital indoor patient record Ex. Op-22, provisional light microscopy Ex. Op-23, ultrasonography report Ex. Op-24, medical literature uterine neoplasms Ex. Op-25, medical literature Exs. Op-26 & 27. OP No. 3 had tendered into evidence affidavit of Mr. G.S. Bhatti, Manager Ex. Op-3/A & B, insurance policy Ex. Op-3/1. OP Nos. 4 & 5 had tendered into evidence affidavit of Sh. Deepak Chhabra Ex. Op-4/A.
8. We have heard the learned counsel for the parties. Consumer Complaint No. 103 of 2013 8
9. It has been argued by the counsel for complainant that wife of complainant Smt. Surinder Kaur had some problem in her abdomen and on the basis of CT Scan got conducted from Amarjeet CT Scan & Diagnostic Centre on 2.5.2011(Ex. C-1), it was found that she had 'enlarged uterus with mass formation and pyometra, histo/cytopathological correlation is suggested' and she consulted to Lal Latpat Rai Hospital, Kapurthala from where she was referred to OP No. 1. On the basis of CT Scan, OP No. 1 observed that excision is required and exploratory laparotomy was planned. She was admitted in the hospital on 3.5.2011 and on 4.5.2011 operation was done, which was successful, Biopsy was taken and referred for Microscopy Histopath Report, which was got conducted from Sardana Labs and they in their report dated 6.5.2011 Ex. C-3 observed as under:-
"Opinion: Homologous Spindle Cell Sarcoma [Leiomyomatous] with involvement of 2/3rd Depth of Myometrium Adnexae, All the Twelve Pelvic and Paraaortic Nodes, Omentum Have no involvement"
10. Spindle Cell Sarcoma was found on the uterus. After successful recovery, she was discharged on 18.5.2011 with follow up treatment. She had been reporting to the said hospital upto 22.12.2011 but she was not having relief from the pain and she approached Lala Lajpat Rai Hospital, RCF, Kapurthala on 28.12.2011 and they referred to Patel Hospital, Jalandhar. Patel Hospital referred for CT Scan and the deceased and from the CT Scan, it was found that she was having Spindle Cell Sarcoma Uterus and it was at stage Consumer Complaint No. 103 of 2013 9 IV. They had given Chemotherapy treatment on various dates i.e. 4.1.2012, 11.1.2012, 3.2.2012, 10.2.2012, 3.2.2012, 10.2.2012, 24.2.2012, 2.3.2012, 16.3.2012, 6.4.2012 & 27.4.2012 and ultimately she died on 10.8.2012. The allegations of complainant are that Spindle Cell Sarcoma was found by Sardana Lab dated 6.5.2012 then only best treatment to control the disease was to go for treatment of Chemotherapy/radiation but upto 22.12.2011, no such treatment was suggested or given by the OP. On this point, the allegations of the counsel for complainant are that by not giving Chemotherapy/radiation to the deceased is a case of medical negligence, which had taken the life of the deceased, otherwise she could have survived a few years more. She has also referred to some medical literature from Wikipedia (Ex. C-26) wherein it was observed as under:-
"Spindle cell sarcoma is a type of connective tissue cancer in which the cells are spindle-shaped when examined under a microscope. The tumors generally begin in layers of connective tissue such as that under the skin, between muscles, and surrounding organs, and will generally start as a small lump with inflammation that grows. At first the lump will be self-contained as the tumor exists in its stage 1 state, and will not necessarily expand beyond its encapsulated form. However, it may develop cancerous processes that can only be detected through microscopic examination. As such, at this level the tumor is usually treated by excision that includes wide margins of healthy-looking tissue, followed by thorough biopsy Consumer Complaint No. 103 of 2013 10 and additional excision if necessary. The prognosis for a stage 1 tumor excision is usually fairly positive, but if the tumors progress to levels 2 and 3, prognosis is worse because tumor cells have likely spread to other locations. These locations can either be nearby tissues or system-wide locations that include the lungs, kidneys, and liver. In these cases prognosis is grim and chemotherapy and radiation are the only methods of controlling the cancer."
and in the conclusion, it has been observed that Chemotherapy/radiation are the Spindle Cell Sarcoma treatment but these are partially affect in curbing the Caner on their application in the lateral stages on diagnosis. Whereas on the other hand, the counsel for Ops has argued that as referred by Lala Lajpat Rai Hospital, RCF, Kapurthala, she was admitted with Op No. 1 on 3.5.2011 on the basis of CT Scan report dated 2.5.2011 Ex. C-1 referred above and on 4.5.2011 exploratory laparotomy was done (Ex. Op-15) and it was at stage one as per the record of the Op Hospital (Ex. Op-16) dated 5.11.2011 and in that situation, excision was the best treatment and he was advised follow up. On 13.8.2011, Ultrasonography of the whole abdomen was got conducted and its impression was normal study and it was found as under:-
"No obvious retroperitoneal lymphadenopathy is seen. No evidence of free fluid in the abdomen."
11. Therefore, in case nothing abnormal was seen then there was no question of referring her for Chemotherapy or radiation. In support of his contention, he has referred to medical literature by Consumer Complaint No. 103 of 2013 11 NCCN Clinical Practice Guidelines in Oncology on "Uterine Sarcoma' wherein treatment stage wise has been referred as under:-
Undifferentiated Stage I Observe Sarcoma Consider pelvic RT and/or brachytherapy (category 2B) Consider chemotherapy (category 2B) Stage Consider tumor-directed RT See II, III Consider chemotherapy Surveillance (category 2B) (UTSARC-4) Leiomyosarcoma Stage Chemotherapy and/or RT (LM5) IVA Stage Chemotherapy± palliative IVB RT
12. Then he has referred Ex. Op-26 'Textbook of Gynaecological Oncology' wherein it has been mentioned 'Leiomyosarcomas' as under:-
"The role of adjuvant treatment in leiomyosarcomas is probably less controversial. These tumours to metastasise distantly with a lower incidence of lymph node metastases in the pelvis, therefore adjuvant radiation is unlikely to offer any benefit. Within the EQRTC 55874 study, there was no significant effect of radiation on local control and no survival advantage. It has therefore been that author's policy to advise that adjuvant radiation should not be given to women with leiomyosarcoma of the uterus where there has been complete miscroscopic removal of tumour. For cases with residual disease following surgery adjuvant radiation with or without chemotherapy should be considered and discussed. These tumours have an unpredictable behaviour ranging from highly aggressive to very indolent; some of the most aggressive tumours metastasise Consumer Complaint No. 103 of 2013 12 and lead to death within 18-24 months and yet paradoxically a further sub group has a remarkably indolent behaviour where recurrence might take 10-15 years to manifest. These latter tumours have a greater tendency to be ER/PR positive and routine testing for ER/PR positivity should be considered on the initial hysterectomy specimen so that this can be offered at the appropriate time.
xxxxx xxxxx xxxxx xxxxx These are in many respects more challenging tumours to treat. Firstly they do have a very much more unpredictable behaviour ranging from the highly lethat tumours which can cause death within two years to a sub-group where there is a much delayed late pattern of relapse. These latter tumours are sometimes strongly ER and/or PR positive and should be checked on the initial specimen and any biopsy from recurrent tissue where possible. The use of hormonal therapy in appropriate patients will clearly be dictated by the ER/PR positivity. A further guide to likelihood of recurrence is the number of mitoses per 10 high power fields and when less than 10 there is usually a low risk, whereas more than 20 it is more predictable that there will be an early pattern of relapse and a more aggressive behaviour. At present there is no proven benefit for adjuvant treatment in the early setting and there fore chemotherapy is usually conserved until relapse and the features described above are taken into account."Consumer Complaint No. 103 of 2013 13
13. He has further referred to document (Ex. OP-27) relating to 'Tumors of the Uterine Corpus' wherein under the head 'Prognosis and Clinical Course', it has been observed as under:-
"Many prognostic factors affect outome in uterine sarcoma, but the most important is the clinical stage at presentation (205, 206, 236-239). Disease stage directly affects disease-free and overall survival rates (183, 206, 239, 240).
Leiomyosarcomas are aggressive tumours with recurrence rate of 50 to 70% even at early stages (1984). The overall 5 year survival rate ranges from 15 to 25%, and the 5 year survival rate for patients within stages I and II is 40 to 70% (241, 242). There has been no consensus on prognostic indicators for leiomyosarcoma. Previous studies have reported mitotic index, cellular atypia, vascular invasion, and tumor size to correlate with survival."
and under the head 'Treatment', it has been observed as under:-
"Surgery remains the mainstay of treatment for uterine sarcoma, regardless of histologic type. However, there is some controversy regarding the need for oophorectomy and/or lymph node dissection for each subtype of uterine sarcoma. In general, hysterectomy including oophorectomy with or without lymph node dissection is the treatment of choice."
14. It has been argued by the counsel for OPs that at stage I excision of the afflicted area was the best possible treatment. Even Chemotherapy/Radiation, it was required in case there was a report Consumer Complaint No. 103 of 2013 14 that the deceased was still suffering from that disease. As per report dated 13.8.2011, Ultrasonography of the whole abdomen was got conducted and report is as under:-
"No obvious retroperitoneal lymphadenopathy is seen. No evidence of free fluid in the abdomen."
15. In case nothing abnormal was seen then there was no question of referring her for Chemotherapy or radiation. Therefore, in all circumstances, Chemotherapy/radiation therapy was not required. Ops have done what was medically required from a prudent Doctor in the ordinary medical standards and that has been done by Ops, therefore, no case of medical negligence is made out. Complaint is without merit, just to harass and extract the money.
16. We have considered the contentions as raised by the counsel for the parties. As is clear from the pleadings and arguments submitted by the counsel for the parties, Smt. Surinder Kaur wife of complainant had some problem and she got CT Scan report from Amarjeet CT Scan & Diagnostic Centre dated 2.5.2011(Ex. C-1) wherein it was opined "Enlarged Uterus with Mass formation and Pyometra. Histo/Cytopathological Correlation is suggested', accordingly, she was approached to Lala Lajpat Rai Hospital, RCF, Kapurthala from where she was referred to OP Hospital and she was admitted with OP Hospital on 3.5.2011 and exploration laparotomy was done. Its biopsy was taken and it was found from the report Ex. C-3 that she was having spindle cell sarcoma[Leiomyomatous]. As per the observations made by OP Hospital, the Sarcoma was at stage I, as per the observations made by OP Hospital referred in Ex. Consumer Complaint No. 103 of 2013 15 Op-16, she was discharged on 8.5.2011 with directions of follow up treatment. She had been coming to the OP hospital for OPD Check up after 22.11.2011 but she was having problem with her and she again approached Lala Latpat Rai Hospital, RCF, Kapurthala and they referred her to Patel Hospital, Jallandhar. Her OPD card is Ex. C-9, Ex. C-10 is the Radiology and Imaging Investigation Report in which it was found that she was a known case of spindle cell sarcoma uterus. A recurrent / residual mass seen in the region of vault with loss of fat planes with the urinary bladder and rectum infiltration of left VU junction retrograde left hydroureteronephrosis and locoregional and abdominal lymph nodes. Multiple pulmonary nodules likely metastases. As per their report Ex. C-11, it was at stage IV. They had done Chemotherapy on various dates 4.1.2012 and then on 11.1.2012, 3.2.2012, 10.2.2012, 24.2.2012, 2.3.2012, 16.3.2012, 6.4.2012, 27.4.2012 and ultimately, she died on 10.8.2012.
17. Now it is to be determined whether after operation conducted by Op No. 1 through Op No. 2 in May, 2011 whether chemotherapy/radiation was necessary at that stage. On the basis of literature referred by the parties, it can be handled with operation excision/chemotherapy in case it is at stage I and OP hospital adopted for Laparotomy, which is a standard medical practice, therefore, in case they had gone for laparotomy of the afflicted area that was a correct procedure.
18. The counsel for complainant argued that after the operation, they should have gone for chemotherapy/radiation to rule Consumer Complaint No. 103 of 2013 16 out any residual of the afflicted area. In the complaint, complainant has not referred about the CT Scan report dated 13.8.2011 whereas the deceased had gone through Ultrasonography of the whole abdomen from OP Hospital and at that time, the observations were as under:-
"No obvious retroperitoneal lymphadenopathy is seen. No evidence of free fluid in the abdomen."
Therefore, there was no retroperitoneal lymphadenopathy, which may prompt Ops for chemotherapy/radiotherapy. Therefore, on the basis of this report in case there was no problem with the deceased then by not recommending for chemotherapy/radiotherapy, the Doctor had not violated any medical ethics. In case this report would not have been there then certainly, there would have been held negligent. Normally the report is taken after every three months and then in November, 2011 again a report was taken by Patel Hospital when she had gone there and as per the report of the Patel Hospital Ex. C- 11, it was Uterine Sarcoma Stage IV in which Chemotherapy was recommended and chemotherapy was the only treatment at that time. There is no such report of any Doctor or any expert on the record that the report of OP Hospital dated 13.8.2011 can be an incorrect report or that in case in the month of November, 2011 the stage of the Cancer had gone to IVth stage then it could have been there in the month of August, 2011. Therefore, in the absence of any positive report on the record then OP No. 1 and its Doctor cannot be held guilty of medical negligence for not recommending chemotherapy/radiation.
Consumer Complaint No. 103 of 2013 17
19. So far as the medical literature relied upon by the counsel for complainant Ex. C-26, it has been mentioned that in case it is at the Ist stage usually it is treated by excision followed by biopsy and additional excision, if any. Biopsy was taken and its result was there in the report dated 6.5.2011(Ex. C-3). It has been further observed that if the tumour progressive to level III & IV then chemotherapy and radiation are the only method of controlling the Cancer and that these are partially affected depending upon the stage of diagnosis. So has been observed in the medical literature produced on the record by the Op Ex. Op-26 wherein it has been observed that adjuvant treatment in leiomyosarcomas should not be given to the women with leiomyosarcoma of the uterus. This tumour has an unpredictable behaviour ranging from highly aggressive to very indolent; some of the most aggressive tumours metastasise and lead to death within 18-24 months. As per Ex. Op-27, Leiomyosarcomas are aggressive tumour with recurrence rate of 50 to 70% even at early stages and against the treatment, it has been observed that surgery remains the mainstay of treatment for uterine sarcoma, regardless of histologic type and still there is a controversy for need of oophorectomy and/or lymph node dissection for each subtype of uterine sarcoma and there is no standard recommendation regarding the role of adjuvant radiation sarcoma, therefore, when there was no specific report with regard to recurrence of sarcoma then in that case chemotherapy/radiation was not recommended by OP Hospital. It cannot be said that in that situation it was a case of medical negligence because such a treatment can be given only in case there Consumer Complaint No. 103 of 2013 18 is positive report otherwise chemotherapy/radiation have very severe side effects also.
20. How the medical negligence is to be proved! The basic judgment on this point is "Bolam v Friern Hospital Management Committee", (1957) 2 ALL ELR 118, which was accepted by the Hon'ble Supreme Court as laying down correct tests in cases of medical negligence, in which it was observed that negligence in law means failure to do some act which a reasonable man in the circumstances would do, or the doing of some act which a reasonable man in the circumstances would not do. It was further held that Doctor is not guilty of negligence if he acted in accordance with practice accepted as proper by responsible body of medical man skilled in a particular art." There is another judgment of the Hon'ble Supreme Court "Kusum Sharma & Others versus Batra Hospital & Medical Research Centre & Others", 2010 (3) SCC 480 in which it was held that 'in case the Doctors have attended the patient with utmost care, caution and skills and with devotion and dedication then the Doctor, who performed the operation had reasonable decree of skill and knowledge and adopted the procedure which in their opinion as in the best interest of the patient then the Doctor cannot be held responsible for negligence.' It was also observed that 'mere deviation from normal professional practice is not necessarily evidence of negligence - Higher the acuteness in emergency and higher the complication, more are the chances of error of judgment - Doctors in complicated cases take chance even if the rate of survival is low. - To prosecute a medical professional for negligence under criminal Consumer Complaint No. 103 of 2013 19 law it must be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do. - The negligence must be culpable or gross and not the negligence merely based upon an error of judgment; 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. - A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field and that Medical professional 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.' The same was observed by the Hon'ble Supreme Court reported in 2011(1) SCC 31 "Minor Marghesh K. Parikh versus Dr. Mayur H. Mehta" that "negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do.
21. Therefore, on the basis of evidence and reports on the record, we do not agree with the arguments raised by the counsel for complainant that it is a case of medical negligence on the part of Ops, Consumer Complaint No. 103 of 2013 20 accordingly, this point is determined against complainant and in favour of Ops.
22. Another point has been raised by the counsel for Ops that complaint on behalf of complainant was not maintainable because the deceased left with two children and that they are not party to do. However, in consumer complaints, the complaint cannot be dismissed merely of want of impleading necessary parties. Moreover, complainant is husband of the deceased and the money was spent by him and in case money on the treatment of deceased was spent by complainant then he has a right to file the complaint. Therefore, we do not agree with the plea raised by the counsel for Ops that the complaint on behalf of complainant is not maintainable.
23. In view of the above, we do not see any merit in the complaint and the same is dismissed with no order as to costs.
24. The arguments in this consumer complaint were heard on 8.10.2015 and the order was reserved. Now the order be communicated to the parties as per rules.
25. The consumer complaint could not be decided within the statutory period due to heavy pendency of Court cases.
(Gurcharan Singh Saran) Presiding Judicial Member (Jasbir Singh Gill) Member October 20, 2015. (Surinder Pal Kaur) as Member Consumer Complaint No. 103 of 2013 21