State Consumer Disputes Redressal Commission
Anil Kumar Dwivedi vs Kamala Nehru Memorial Hospital on 22 February, 2023
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UP C-1 Vikrant Khand 1 (Near Shaheed Path), Gomti Nagar Lucknow-226010 Complaint Case No. CC/425/2016 ( Date of Filing : 29 Dec 2016 ) 1. Anil Kumar Dwivedi Reva M.P. ...........Complainant(s) Versus 1. Kamala Nehru Memorial Hospital Allahabad ............Opp.Party(s) BEFORE: HON'BLE MR. Rajendra Singh PRESIDING MEMBER HON'BLE MR. Vikas Saxena JUDICIAL MEMBER PRESENT: Dated : 22 Feb 2023 Final Order / Judgement Reserved State Consumer Disputes Redressal Commission U.P. Lucknow. Complaint Case No.425 of 2016 1- Anil Kumar Diwedi, aged about 47 years, s/o Late Shri Ram Susheel Diwedi, R/o Village Bhathi, PO/PS Hanumana, District, Reva, Madhya Pradesh. 2- Km. Kalyani Diwedi, aged about 21 years D/o Shri Anil Kumar Diwedi, R/o Village Bhathi, PO/PS Hanumana, District, Reva, Madhya Pradesh. 3- Arpan Diwedi, aged about 19 years S/o Shri Anil Kumar Diwedi, R/o Village Bhathi, PO/PS Hanumana, District, Reva, Madhya Pradesh. ...Complainants. Versus 1- Kamla Nehru Memorial Hospital, Hashimpur Road, Distt, Allahabad through its Director. 2- Dr. Ravindra Narayan Saxena, General Surgery, Department, Kamla Nehru Memorial Hospital, Hashimpur Road, Distt, Allahabad. 3- Dr. S. Khanduja, M.D., Radiology Department, Kamla Nehru Memorial Hospital, Hashimpur Road, Distt, Allahabad. ..........Opposite parties. Present:- 1- Hon'ble Sri Rajendra Singh, Member. 2- Hon'ble Sri Sushil Kumar, Member. Smt. Suchita Singh, Advocate for the complainants. Smt. Kirti Singh, Advocate for OPs no.1 & 2. Sri Prabhakar Nigam and Sri Ravi Kumar, Advocate for OP no.3. Date : 13.3.2022 JUDGMENT
Per Sri Rajendra Singh, Member- This complainthas been filed by the complainants under section 17 of the Consumer Protection Act, 1986 for following reliefs:-
Direct the respondents to pay to the complainants an amount of Rs.5,00,000.00 towards cost of medicalexpenses incurred in various hospitals which includes travelling and fooding and lodging expenses also;
Direct the respondents to pay to the complainants an amount of Rs.5,005000.00 towards mental agony, physical pain, hardships and harassment suffered; and Direct the respondents to pay Rs.5,00,000.00 to complainants for loss of income of the husband; and Direct the respondents to pay Rs.10,00,000.000 for loss of companionship and Direct the respondents to pay Rs.10,00,000.00 for the irreparable loss of motherly love and affection caused to two children; and Direct the respondents to pay Rs.21,60,000.00 for loss of income to the family on account of the untimely death of the patient; and Direct the respondents to pay to the complainant an amount of Rs.50,000.000 towards cost of litigation; and Direct the respondents to pay interest @ 15% per annum on the aforesaid amounts from the date they fell due till actual payment; and Pass any such orders as this Hon'ble Commission may deem fit in the facts and circumstances of the present case, in favour of the complainants.
The brief facts of the complaint case are that, that the opposite party no.1 is a known reputed hospital situated at Allahabad, U.P. and within the territorial jurisdiction of this Hon'ble Commission. The opposite party no.2 is general surgeon in the Kamala Nehru Memorial Hospital, Allahabad and the opposite party no.3 is Radiologist at Kamala Nehru Memorial Hospital, Allahabad who conducted the Mammography and Ultrasound of Late Geta Devi wife of complainant no.1.
The relevant facts for just and proper adjudication of this case are that the patient alongwith her husband with the complain of a very small lump under the left armpit and inside the left breast with a little bit of pain visited the opposite party no.2 Dr. Ravindra Narayan Saxena who is a general surgeon in the hospital of opposite party no.1 on 31.7.2012. Dr. Ravindra Narayan Saxena advised Ultrasound and Mammography of both the breast of patient and prescribed certain medicines for seven days and asked her again to visit on 7.8.2012 with test reports. The patient got her tests done on the same day i.e. on 31.7.2012 in the pathology of hospital by Dr. S. Khanduja who is a radiologist in the hospital of opposite party no.1. Again on 7.8.2012 patient alongwith her husband visited Dr. R.N. Saxena with Ultrasound report and Mammography report and Dr. R.N. Saxena diagnosed the lump as disease of filaria and started the treatment of filaria and prescribed medicines for 21 days and asked the patient to visit after 21 days. Even after taking all the medicines regularly as prescribed by the opposite party no.1 the condition of the patient started deteriorating and the pain in the lump increased and redness and swelling spread in the left breast with inflammation in the left breast. Patient again visited Dr. R.N. Saxena on 28.8.2012 but the doctor overlooking the deteriorating condition of patient and seeing no improvement in the disease, in fact the swelling, pain, redness and inflammation in the left breast has increased but the opposite party no.2 acting negligently, repeated the same medicine for next one month.
The patient was taking all the medicines regularly as prescribed by the opposite party no.1 but swelling, redness and inflammation spread to right breast also and left breast became black and hard. Day by day the condition of patient was becoming worse and pain in the breast has also increased. Though Dr. R.N. Saxena has asked the patient to visit after one month but as the condition of patient was deteriorating day by day, the patient and complainant again visited the doctor on 17.9.2012 but the doctor again acting negligently did not give proper care and attention to the patient and prescribed medicines for next seven days. In next seven days the condition of patient became worse and now blackness, hardness and swelling spread in the right breast also and swelling and pain in both the breast was continuously increasing. The patient visited Dr. R.N. Saxena again on 24.9.2012 but the doctor overlooking the critical condition of patient , repeated the same medicines for next seven days. It is relevant to mention here that the complainant no.1 many times requested the opposite party no.2 to refer the patient to any specialist as the condition was deteriorating but opposite party no.2 advised that same treatment of filaria will be continued by any other doctor also.
It is also relevant to mentioned here when the condition of the patient was deteriorating and she was not responding the treatment of filaria being administered to her, then opposite party no.2 could have taken second opinion of Dr. B. Paul, Cancer Specialist who was in the same hospital at the time or could have referred the patient to Dr. B. Paul but negligently continued the same treatment overlooking the critical condition of the patient.
The deteriorating condition of patient and unbearable pain in both the breast made complainant and patient apprehensive about the treatment given by opposite party no.2 and on 11.10.2012 they consulted Dr. H.S. Shukla, Cancer Specialist at Sir Sunder Lal Chikitsalay, Kashi Hindu Vishwavidyalay, Varanasi and showed him all the prescriptions of opposite party no.2 and report given by opposite party no.3 where after preliminary examination patient was advised to visit Tata Memorial Hospital at Mumbai immediately. The life of the patient was very precious for her family members and the complainant don't want to take any chance so after making necessary arrangements immediately rushed to Mumbai and got the registration done at Tata Memorial Hospital on 22.10.2012 where after conducting various tests finally on 31.10.2012 breast cancer in the last stage was diagnosed by the doctors. It was also informed by the doctor at Tata Memorial Hospital that the cancer has spread to other parts of the body also like in lever, heart, lungs and bones of hands and legs. It was very shocking for the patient as well as for the complainant no.1 that the patient has been suffering from last sage cancer and it has spread in other parts of the body also. It proves that the lump growth was cancerous in July, 2012 when patient had first visited opposite party no.2 but due to wrong diagnosis and treatment of opposite party no.2 and opposite party no.3, the patient suffered and her disease became uncurable. It is also relevant to mention here that the opposite party no.2 has committed gross negligence by overlooking deteriorating condition of the patient and did not repeat the mammography and ultrasound of patient, instead just on the basis of wrong report made by opposite party no.3, continued wrong treatment of the patient and in very short span of time the cancer of patient reached last stage and spread in the other parts of the body also.
In Mammogram and Ultrasound report dated 01.08.2012 of opposite party no.1, hospital clearly shows enlarged axillary lymph nodes in the left breast and as per the medical literature, enlarged axillary lymph nodes is a strong signal that breast cancer may be at a more advanced stage. Thus, it proves the gross negligence on the part of the opposite parties that they ignored and overlooked the symptoms clearly showed in the reports. The doctor at Tata Memorial Hospital advised to go for chemotherapy. Chemotherapy is the most common form of last stage cancer treatment. Chemo uses drugs called cytotoxics to kill or slow the growth of cancer cells. The thing is, while chemotherapy drugs can stop cancer cells growing and multiplying, they also affect normal, healthy cells in the process.
The first chemotherapy was done on 06.11.2012 in the Tata Memorial Hospital and five more chemotherapies in the interval of 21 days were required to be done in any cancer institute and they asked the patient to visit on 08.04.2013 after completing five remaining chemotherapies. The complainant no.1 and patient decided to conduct next chemotherapy at Sir Sundar Lal Chaikitsalay Kashi Hindu Vishwvidyalay, Varanasi and visited the hospital on 26.11.2012 where certain blood tests were said to be done before giving injection of chemotherapy but the hemoglobin level was reduced to 7 and minimum hemoglobin level required for the chemotherapy is 8. After giving two unit of blood on 30.11.2012 second chemotherapy was given to the patient at Varanasi hospital. Again on 21.12.2012 the patient visited the hospital at Varanasi for third chemotherapy but as the level of hemoglobin was 7.9, an injection of hemoglobin was given to the patient for maintaining hemoglobin level and subsequently chemotherapy was done. For the fourth chemotherapy, patient along with complainant again went to Sir Sundar Lal Chikitsalaya at Varanasi on 17.01.2013 but again due to low level of hemoglobin, patient was first given an injection of hemoglobin followed by chemotherapy.
On the next due date of chemotherapy i.e. on 06.02.2013 the patient has become so weak that she was unable to walk and doctors at the hospital seeing the critical condition of the patient, refused to give fifth chemotherapy. During this period, the patient became very weak because of side effects of chemotherapy and weak immunity. After fourth chemo she was not in a condition to walk even and became dependent on her family members for her daily activities. Seeing her deteriorating condition of patient and low level of hemoglobin, doctors at Varanasi Hospital, refused to give fifth chemo as she was not physically compatible for chemotherapy.
The complainants in desperate effort to save the life of the patient again visited opposite party no.1 hospital and met Dr. B. Paul Thaliath, Chief Oncologist on 12.02.2013 who after conducting blood test of patient in which her hemoglobin was 6.6 and minimum hemoglobin required for chemotherapy is 8 therefore, gave two units of blood to the patient and gave her fifth chemotherapy on 22.2.2013 and asked to visit after 21 days for next chemotherapy. After fifth chemotherapy condition of patient became very pity as she was not even able to get up from the bed herself without others help. Day by day condition of patient was becoming worse and she finally died on 08.05.2013 just at the age of 44 leaving behind her two minor children and the husband. The complainants were already suffering mentally, physically, emotionally and financially due to long and expensive treatment of patient and her death at such an early stage has shattered them completely. The medical negligence during treatment is further fortified from the fact that even after seeing deteriorating condition of patient, opposite parties did not prescribe for any test to confirm the disease when the disease was spreading instead of subsiding even after taking regular medicines as prescribed by the respondent no.2. The respondent no.2 kept on assuring the complainants that the disease is microfilaria and nothing else, overlooking that the patient was continuously suffering and not responding to the treatment of filaria being administered to her.
The complainants were regularly visiting the respondent hospital and doctors for regular check up but the carefree attitude of respondent doctors towards the condition of patient was disturbing the complainant very much. The respondents were continuously assuring the complainants that she will be fine without considering the condition of patient which was showing no positive result. Having no other option the complainant no.1 inspite of not very sound financial condition just to save his wife's life went to Tata Memorial Hospital, Mumbai.
It is relevant to mention here that a reasonable degree of care should be taken by the doctors while treating a patient which the respondents failed to do. There was breach of duty and care by opposite party no.2 and opposite party no.3 by not referring the patient to some specialist when there was no improvement in the disease, but on the contrary it was increasing. It was the negligence of respondent no.2 and 3 which made the complainants to suffer irreparable loss and they had to face emotional as well as financial crisis also. All the hard work and huge expenses made by the complainants to save the life of patient has been wasted and the health and life of the patient has been exposed to higher risks just because of the negligence and deficiency in services committed by the respondents which needs to be compensated by the respondents.
The husband, complainant no.1 is a practicing advocate at District Reva and he had missed his work all during the course of treatment of his wife at different places and suffered loss of income because of the medical negligence and deficiency in service committed by the respondents in the treatment of his wife. The life of the patient and her dependants have been ruined because of the medical negligence and deficiency in service committed by the respondents and as such the complainants are constrained to approach this Hon'ble Commission for compensation of losses which the complainants have been made to suffer at the hands of the respondents and for damages. The complainants are also liable to get all the expenses incurred in all the chemotherapies which would not have been required if respondents had taken due care and being not negligent in their treatment.
The law expects a duly qualified doctor to use that degree of skill and care which an average man of his qualifications ought to have and in this case the respondents failed to do so. The conduct of the respondents, as detailed hereinabove, clearly reflects that they had been negligent and ignorant from the very beginning. The respondents did not take proper care in diagnosis of the lump even when it was spreading all over the breast and failed to bring to their task a reasonable degree of skill and knowledge.
The complainants are also liable to get all the other expenses incurred by them during the course of treatment. The complainants are also liable to get compensation for physical pain, mental agony and harassment suffered by the complainants. The wife of the complainant was a well educated lady and working as teacher in an inter college and was earning Rs.10,000.00 per month and due to her untimely death, her family lost the financial support provided by the deceased which could have been utilized for the betterment of family and for better education of children. The total expenses incurred in the treatment of the wife of complainant no.1 at different places form Allahabad, Varanasi and Bombay comes around Rs.10 lakhs which the opposite parties are liable to pay to the complainants. The complainants had also served a legal notice raising grievances and for payment of compensation to the complainants on 18.6.2015 through registered post on the opposite parties which was not responded by the opposite parties hence this complaint.
The opposite parties - 1 and 2 have filed their written statement stating that there is no medical negligence or deficiency in service on the part of the answering opposite parties. The reports were collected on the next day i.e, 01.08.2012 .. The reports of Mammography and Ultrasound of breast were shown to the opposite party - 2 for the first time on 07.08.12. It is wrong to allege that the condition of Smt Geeta Devi started deteriorating and pain in lump increased and redness and swelling spread in the left breast. It is wrong to allege that the condition of Smt. Geeta Devi started deteriorating after treatment by the opposite party - 2. In fact, in prescription dated 28.08.12 the answering opposite party-2 stop one painkiller which was previously prescribed and another painkiller was prescribed which was to be taken by Smt. Geeta Devi only when necessary. This indicates that there was a positive response to pain and improvement in the patient's condition. It is wrong to allege that the opposite party - 2 had been negligent and non-attentive in treating the deceased. The answering opposite party - 2 increased the dose of anti-filarial and antibiotic medicines for a week after assessing the condition of patient. It is specifically stated that the complainant - 1 never requested the opposite party - 2 to consult Dr B Paul of his own.
It is stated that the deceased was registered as an outdoor patient in Sir Sunderland Hospital, Banaras Hindu University on 11.10.12 and had consulted Dr HS Shukla on 12.10.12 . Dr HS Shukla is a very renowned and senior cancer surgeon with worldwide experience, also advised the deceased for conservative anti-filarial treatment for two weeks and if no improvement is seen then for biopsy. It is wrong to allege that the lump in the armpit was cancerous when the patient first visited the opposite party - 2 in July 2012, as the investigation reports do not reveal so. The respondent's advice of Mammography is specifically important and critical in the evaluation of cancer and certain benign lesions of the breast. Thus at no time suspicion of cancer of the breast was ignored or overlooked by opposite party - 2. There was no negligence on the part of the answering opposite parties in treating the patient. A clinical diagnosis of the dreaded disease, cancer of the breast or cancer of the lymph node is always on top of mind of a doctor, whenever he sees a female patient of lymph node enlargement in the axillary region, especially if it does not find any abnormal findings in the affected side of upperlimb and shoulder area. In the appellant case the patient had a very small lump in the left arm pit and inside the left breast with little pain and no other symptoms. The words "inside the left breast" mentioned in complaint are misleading and are denied. The small number was in the left axilla and not inside the breast. The patient was having a palpable lymph node in left armpit noted as axillary lymphadenopathy. She also gave a history of taking antituberculosis treatment for six months only (incomplete treatment for two courses of breast) for tubercular mastitis (tuberculosis of the breast). This disease can also leave behind a palpable live node in the armpit. This has not been mentioned by the complainant deliberately. With all this in mind the opposite party - 2 advised for Mammography and ultrasound of both breasts so as to find out any non-palpable underlying abnormality or lump in the breasts which includes a cancer breast lesions as well.
It is stated that chemotherapy is the first line of treatment in inflammatory cancer of the breast as it is usually inoperable and are labelled as a stage ¾(advanced stage) there has been no breach of duty on the part of opposite party - 2 as all patients of OPD are free to consult any doctor whom they think proper or up to their expectation. If the complainant had any grudge from the very beginning or they had lost faith in the opposite party - 2 at any point of time during the visit, as mentioned in the complaint, they could have consulted any other doctor. It is beyond human comprehension and normal human behaviour that a patient and her relatives, with so much grudge, unsatisfaction throughout the duration of treatment would continue to visit the same Dr . Unless there was some degree of satisfaction or response there can be no reason for the patient to continue visiting the same Dr . The allegations have been concocted in posterity when another life-threatening disease occurred in the same area of body where tubercular disease had occurred in 2008 and filariasis in July/August 2012. The answering opposite parties are not liable to pay any amount to the complainants which they allege to have incurred for treatment of a disease, which did not exist at that time the patient was under the treatment of opposite party - 2 and subsequently developed in a already diseased organ and was detected after one month from the last consultation with the opposite party - 2. The opposite party - 2 has not been negligent in treating the patient, as alleged. It is stated that the opposite party - 2 took all care in treating the patient and there has been no negligence or deficiency in service on the part of the opposite party - 2.
The Hon'ble Supreme Court in the case of V Kishan Rao Vs Nikhil Super Speciality Hospital &Anr ,2010 SCC , Vol 5 P/513 has clearly held that in complicated cases where expert evidence is required, parties should approach the Civil Court and the right of parties to go to civil court is preserved under section 3 of The Consumer Protection Act. The complainant for compensation on account of the alleged death of Smt Geeta Devi due to negligence of doctors, who treated her could not be decided in summary proceedings under the Consumer Protection Act and the proper remedy for the complainant is to file a suit for damages before the civil court, under Law of Torts . The complainants are not entitled to the reliefs claimed or to any other relief, whatsoever and the complainant is liable to be dismissed.
The opposite party - 3 has stated that there is no question of any medical negligence and deficiency in service by the opposite party - 3. The deceased was not taking any treatment by him and he made recommendations as per Mammography. The treatment was to be done by the Dr who was to study the report. The opposite party - 3 has performed Ultrasound and Mammography on01.08.2012 and also recommended for follow-up but the patient did not turn up. It is wrong to say that the report was wrong. The report could have been further verified by better instruments or machines. As far as "enlarged axillary lymph nodes" is concerned from Mammogram report or Ultrasound report ,it cannot be concluded that it was a cancer. There are other tests prescribed for investigating and discovering/confirming the disease of cancer and not only the Ultrasound or Mammogram which is the first stage/line of investigation and thus the conclusion drawn by complainant party that the disease of cancer was found is totally wrong and as such the report of OP - 3 gave the report as per the findings of the Ultrasound or Mammogram report. The opposite party - 3 has given all the report properly for this he was qualified and as such duly qualified to give such report.
We have heard the learned counsel for the complainant Smt. Suchita Singh. The counsel of the opposite party-1 & 2 is Mrs. Kirti Singh but she did not appear to argue her case. The counsels of the opposite party-3, Mr. Prakhar Nigam and Mr. Ravi Kumar Rawat also did not appear to argue their case. We have perused all the pleadings, evidences, arguments and documents on record.
First of all we perused the doctor's prescription dated 31 July 2012 in which advice was given for Mammography of both the breasts. The patient is Mrs Geeta Devi aged 41 years. Mammography was done and the report is being scanned here.
This report says regarding left breast "multiple enlarged axillary node seen largest 18 MM and also normal size nodes with altered eco-texture and hyporechoic eco-pattern" further this report says regarding left breast, "dilated tortuous channels seen lateral to breast extending to axillary tail area with clear fluid, avascular with multiple echogenic foci seen dancing within feed."
What is multiple enlarged axillary node? You have hundreds of lymph nodes throughout your body. Your lymph nodes are part of your lymphatic system, which, in turn, is part of your immune system.
Lymph nodes are little bean-shaped structures that contain immune cells that help fight infection. They're connected by a system of lymph vessels that carry fluid throughout your body. As fluid passes through your lymph nodes, they filter out harmful substances.
Cancer spreads when cancer cells break away from the primary tumor. In breast cancer, these cells are most likely to reach the lymph nodes closest to the affected breast.
Usually, these lymph nodes are under the arm, but there are also clusters of lymph nodes near the collarbone and breastbone.
The ones that are closest to your breast are called sentinel lymph nodes. The nodes under your armpit are called axillary lymph nodes.
Even if cancer has reached nearby lymph nodes, it doesn't mean it has spread to other areas. But cancer that reaches the lymph system or bloodstream has a greater potential to travel to other parts of the body.
Breast cancer that has spread to lymph nodes may be treated more aggressively than if it hadn't reached these nodes.
The 5-year survival rate for breast cancer that hasn't reached nearby lymph nodes is 99 percent versus 86 percent when it has.
You probably wouldn't notice if a few cancer cells reached a lymph node. As the number of cancer cells grows, symptoms can include lumps or swelling in the armpits or around the collarbone.
It's possible to have enlarged lymph nodes even if you haven't discovered a lump in your breast. There are also noncancerous conditions that cause enlarged lymph nodes in an area close to the breasts.
If you notice enlarged lymph nodes but no other symptoms or signs, schedule an appointment with a doctor.
Usually when using imaging procedures, such as axillary mammography or ultrasonography, a cutoff level of 5 mm for lymph node size is postulated to be not only the limit of lymph node visibility but also a sign of metastatic involvement. The aim of this study was to evaluate whether this assumption, used as a basic hypothesis in many reports, is true. A series of 72 axillary specimens from 71 breast carcinoma patients operated at the university hospital of Vienna were analyzed. A comparison of histologically noninvolved axillary specimens with those showing metastatic involvement revealed that the two groups did not differ significantly according to the number or size of lymph nodes per axilla. For lymph nodes <5 mm the probability of being metastatically involved was still 10%. Enlarged lymph nodes (5-20 mm) had a slightly higher risk of being malignant (20%). In contrast, the probability of metastatic involvement for lymph nodes >20 mm was only 40%. We suggest that many reports dealing with the prediction of malignancy in axillary lymph nodes may have used misleading basic assumptions, so the results of these studies must be viewed critically.
The impression of this mammography says , "Axillary Adenopathy Microfilaria in Dilated Channels " in the left breast the report says," Multiple Enlarge Axillary Nodes seen largest 18 MM and also normal size notes with altered eco-texture and hypoechoic eco-pattern " "dilated tortuous channels seen lateral to breast extending to axillary tail area with clear fluid, avascular with multiple echogenic foci seen dancing within feed."
Let us see what is enlarge axillary nodes ? Medical Illustration by Bailey Mariner When a person has cancer, it can metastasize, or spread, to other parts of their body. Cancer spreads when part of the tumor breaks off and travels to other parts of the body.
Cancer cells may travel in the bloodstream or through the lymphatic system. Cancer that travels via the lymphatic system may end up growing inside the lymph nodes.
Axillary lymph nodes are in the armpits, which are close to the breasts. Because the axillary lymph nodes are so close, breast cancer usuallyTrusted Source spreads to them before other lymph nodes.
If cancer has spread to the axillary lymph nodes, a doctor may recommend removing some or all of the lymph nodes during a mastectomy. A mastectomy is a surgical procedure that removes one or both of a person's breasts.
Lymph nodes are responsible for draining lymph fluid. As a result, removing them can cause some side effects after surgery. One possible side effect is lymphedema of the arm, which causes a type of chronic swelling.
General symptoms of metastatic cancer includeTrusted Source:
loss of energy tiredness or weakness unintentional weight loss pain shortness of breath or trouble breathing According to Cancer Research UK, symptoms of breast cancer that has spread to the axillary lymph nodes can include:
a lump or swelling in the armpit swelling of the arm or hand a lump or swelling in the breastbone or collarbone area If a person notices any of these symptoms, they should speak with their doctor as soon as possible.
When checking whether breast cancer has spread to the axillary lymph nodes, a doctor may perform a physical examination or a scan such as an ultrasound, MRI, or CT. During a physical exam, a doctor may check a person's armpits for swelling.
A scan may be able to detect changes in the lymph nodes, such as:
thickening inside the lymph node an increase in blood vessels the loss of hilum, the structure where lymph vessels exit the node the loss of a kidney-shaped appearance According to some estimates, laboratory tests find cancerous nodes in one-third of females who test negative during a physical exam. This means further testing is essential in most people.
A doctor can use several diagnostic methods to determine whether cancer has spread to the axillary lymph nodes:
A sentinel node biopsy involves injecting a radioactive substance or dye into the breast. The dye will move to certain lymph nodes before others.
A doctor can use imaging to identify the sentinel lymph nodes, which are the lymph nodes that the dye reaches first.
A doctor removes one or more sentinel nodes and sends the sample to a pathologist. This method can help a person avoid the side effects of removing multiple axillary lymph nodes.
If the pathologist finds cancer in the sentinel nodes, a person may need to have more lymph nodes removed.
Axillary dissection is a procedure that involves removing additional lymph nodes from under the armpit. The purpose of this is to check for cancer spread and to lower the chance of cancer redeveloping in the lymph nodes.
The doctor removes an area of fat that contains many or all of the lymph nodes. The number of lymph nodes removed can vary but generally ranges from 5-30. Once the doctor removes the nodes, a pathologist can determine whether cancer has spread beyond the sentinel lymph nodes.
So in this case it was the duty of concerned Dr to go for the test of breast cancer but he has taken it very lightly and prescribed some medicines, the prescription dtd 28.08.2012 is scanned here.
The first medicine is tablet Banocide forte . The second Levoflox 750 mg , third one is Cap Cobadex forte and the last prescribed to mention is Tab Tramodol 50mg .
Banocide Forte Tablet is used to treat parasitic worm infection and filariasis (elephantiasis). Filariasis is a disease in which swelling of arms, legs or other body parts may occur. Banocide Forte Tablet is used to treat Bancroft's filariasis, eosinophilic lung, loiasis and river blindness (onchocerciasis).
Levoflox 750 Tablet is an antibiotic, used in the treatment of bacterial infections. It is also used in treating infections of the urinary tract, nose, throat, skin and lungs (pneumonia). It cures the infection by stopping the further growth of the causative microorganisms.
Cobadex Forte Capsule is a multivitamin formulation of Vitamin B complex (Folic acid, Niacinamide, Vitamin B1, Vitamin B12, Vitamin B2, Vitamin B6), Vitamin C, Biotin and Calcium pantothenate.
Vitamin B complex is essential for metabolism of carbohydrates and amino acids Vitamin C helps in the production of collagen and tissue repair in the body Calcium Pantothenate is involved in the utilisation of carbohydrates, synthesis of lipids and proteins and the preservation of blood vessel integrity Formulated with Vitamin supplementation, Cobadex Forte is ideal for tissue repairing, curing sore tongue and mouth ulcers, and preventing premature hair greying.
Cobadex Forte Capsule is necessary for those on unusual diets, on reducing diets with drastically reduced food selection, the elderly, those with diabetes and those recovering from surgery and in convalescence.
Tramadol is used to relieve moderate to moderately severe pain, including pain after surgery. The extended-release capsules or tablets are used for chronic ongoing pain.
None of these medicines is for breast cancer but it is for Filaria . The next prescription of the opposite party is of 17 September 2012.
In this prescription all the medicines are same as previous one except two medicines i.e. tablet Augmentin duo 1 gm which is used to treat bacterial infections like, tonsillitis, sinusitis, otitis media, respiratory tract infections, urinary tract infections, boils, abscesses, cellulitis, wound infection, bone infection, and oral cavity infections. The medicine works by killing the harmful bacteria that cause infections and Tab Ibugesic plus is a Tablet commonly used for the diagnosis or treatment of Pain relief, backache, muscle pain, migraine, menstrual pain, fever. It has some side effects such as Diarrhoea, Dizziness, Nausea, Liver injury.
So it is clear that till 17 September 2012 the concerned Dr was treating the patient as if she's a patient of Filaria but not of breast cancer. Same medicines were again prescribed on 24 September 2012.
The patient was shown in Sir Sundarlal Hospital , BHU on 11 October 2012 here they put a question mark on Filaria of left breast. Here the patient was advised to visit Tata Memorial Hospital at Mumbai immediately. After that she was detected a patient of breast cancer which has been spread to other breast.
Now we have to see what is breast cancer, its diagnosis and treatment? Breast cancer is cancer that forms in the cells of the breasts.
After skin cancer, breast cancer is the most common cancer diagnosed in women in the United States. Breast cancer can occur in both men and women, but it's far more common in women.
Substantial support for breast cancer awareness and research funding has helped create advances in the diagnosis and treatment of breast cancer. Breast cancer survival rates have increased, and the number of deaths associated with this disease is steadily declining, largely due to factors such as earlier detection, a new personalized approach to treatment and a better understanding of the disease.
Types Angiosarcoma Ductal carcinoma in situ (DCIS) Inflammatory breast cancer Invasive lobular carcinoma Lobular carcinoma in situ (LCIS) Male breast cancer Paget's disease of the breast Recurrent breast cancer Symptoms Nipple changesOpen pop-up dialog box Signs and symptoms of breast cancer may include:
A breast lump or thickening that feels different from the surrounding tissue Change in the size, shape or appearance of a breast Changes to the skin over the breast, such as dimpling A newly inverted nipple Peeling, scaling, crusting or flaking of the pigmented area of skin surrounding the nipple (areola) or breast skin Redness or pitting of the skin over your breast, like the skin of an orange When to see a doctor If you find a lump or other change in your breast -- even if a recent mammogram was normal -- make an appointment with your doctor for prompt evaluation.
Causes Doctors know that breast cancer occurs when some breast cells begin to grow abnormally. These cells divide more rapidly than healthy cells do and continue to accumulate, forming a lump or mass. Cells may spread (metastasize) through your breast to your lymph nodes or to other parts of your body.
Breast cancer most often begins with cells in the milk-producing ducts (invasive ductal carcinoma). Breast cancer may also begin in the glandular tissue called lobules (invasive lobular carcinoma) or in other cells or tissue within the breast.
Researchers have identified hormonal, lifestyle and environmental factors that may increase your risk of breast cancer. But it's not clear why some people who have no risk factors develop cancer, yet other people with risk factors never do. It's likely that breast cancer is caused by a complex interaction of your genetic makeup and your environment.
Inherited breast cancer Doctors estimate that about 5 to 10 percent of breast cancers are linked to gene mutations passed through generations of a family.
A number of inherited mutated genes that can increase the likelihood of breast cancer have been identified. The most well-known are breast cancer gene 1 (BRCA1) and breast cancer gene 2 (BRCA2), both of which significantly increase the risk of both breast and ovarian cancer.
If you have a strong family history of breast cancer or other cancers, your doctor may recommend a blood test to help identify specific mutations in BRCA or other genes that are being passed through your family.
Consider asking your doctor for a referral to a genetic counselor, who can review your family health history. A genetic counselor can also discuss the benefits, risks and limitations of genetic testing to assist you with shared decision-making.
Risk factors A breast cancer risk factor is anything that makes it more likely you'll get breast cancer. But having one or even several breast cancer risk factors doesn't necessarily mean you'll develop breast cancer. Many women who develop breast cancer have no known risk factors other than simply being women.
Factors that are associated with an increased risk of breast cancer include:
Being female. Women are much more likely than men are to develop breast cancer.
Increasing age. Your risk of breast cancer increases as you age.
A personal history of breast conditions. If you've had a breast biopsy that found lobular carcinoma in situ (LCIS) or atypical hyperplasia of the breast, you have an increased risk of breast cancer.
A personal history of breast cancer. If you've had breast cancer in one breast, you have an increased risk of developing cancer in the other breast.
A family history of breast cancer. If your mother, sister or daughter was diagnosed with breast cancer, particularly at a young age, your risk of breast cancer is increased. Still, the majority of people diagnosed with breast cancer have no family history of the disease.
Inherited genes that increase cancer risk. Certain gene mutations that increase the risk of breast cancer can be passed from parents to children. The most well-known gene mutations are referred to as BRCA1 and BRCA2. These genes can greatly increase your risk of breast cancer and other cancers, but they don't make cancer inevitable.
Radiation exposure. If you received radiation treatments to your chest as a child or young adult, your risk of breast cancer is increased.
Obesity. Being obese increases your risk of breast cancer.
Beginning your period at a younger age. Beginning your period before age 12 increases your risk of breast cancer.
Beginning menopause at an older age. If you began menopause at an older age, you're more likely to develop breast cancer.
Having your first child at an older age. Women who give birth to their first child after age 30 may have an increased risk of breast cancer.
Having never been pregnant. Women who have never been pregnant have a greater risk of breast cancer than do women who have had one or more pregnancies.
Postmenopausal hormone therapy. Women who take hormone therapy medications that combine estrogen and progesterone to treat the signs and symptoms of menopause have an increased risk of breast cancer. The risk of breast cancer decreases when women stop taking these medications.
Drinking alcohol. Drinking alcohol increases the risk of breast cancer.
Prevention Breast cancer risk reduction for women with an average risk Breast self-exam Making changes in your daily life may help reduce your risk of breast cancer. Try to:
Ask your doctor about breast cancer screening. Discuss with your doctor when to begin breast cancer screening exams and tests, such as clinical breast exams and mammograms.
Talk to your doctor about the benefits and risks of screening. Together, you can decide what breast cancer screening strategies are right for you.
Become familiar with your breasts through breast self-exam for breast awareness. Women may choose to become familiar with their breasts by occasionally inspecting their breasts during a breast self-exam for breast awareness. If there is a new change, lumps or other unusual signs in your breasts, talk to your doctor promptly.
Breast awareness can't prevent breast cancer, but it may help you to better understand the normal changes that your breasts undergo and identify any unusual signs and symptoms.
Drink alcohol in moderation, if at all. Limit the amount of alcohol you drink to no more than one drink a day, if you choose to drink.
Exercise most days of the week. Aim for at least 30 minutes of exercise on most days of the week. If you haven't been active lately, ask your doctor whether it's OK and start slowly.
Limit postmenopausal hormone therapy. Combination hormone therapy may increase the risk of breast cancer. Talk with your doctor about the benefits and risks of hormone therapy.
Some women experience bothersome signs and symptoms during menopause and, for these women, the increased risk of breast cancer may be acceptable in order to relieve menopause signs and symptoms.
To reduce the risk of breast cancer, use the lowest dose of hormone therapy possible for the shortest amount of time.
Maintain a healthy weight. If your weight is healthy, work to maintain that weight. If you need to lose weight, ask your doctor about healthy strategies to accomplish this. Reduce the number of calories you eat each day and slowly increase the amount of exercise.
Choose a healthy diet. Women who eat a Mediterranean diet supplemented with extra-virgin olive oil and mixed nuts may have a reduced risk of breast cancer. The Mediterranean diet focuses mostly on plant-based foods, such as fruits and vegetables, whole grains, legumes, and nuts. People who follow the Mediterranean diet choose healthy fats, such as olive oil, over butter and fish instead of red meat.
Breast cancer risk reduction for women with a high risk If your doctor has assessed your family history and determined that you have other factors, such as a precancerous breast condition, that increase your risk of breast cancer, you may discuss options to reduce your risk, such as:
Preventive medications (chemoprevention). Estrogen-blocking medications, such as selective estrogen receptor modulators and aromatase inhibitors, reduce the risk of breast cancer in women with a high risk of the disease.
These medications carry a risk of side effects, so doctors reserve these medications for women who have a very high risk of breast cancer. Discuss the benefits and risks with your doctor.
Preventive surgery. Women with a very high risk of breast cancer may choose to have their healthy breasts surgically removed (prophylactic mastectomy). They may also choose to have their healthy ovaries removed (prophylactic oophorectomy) to reduce the risk of both breast cancer and ovarian cancer.
So it is clear that symptoms of breast cancer are very common and a Dr can easily diagnose breast cancer. In this case the report of Mammography was there and inspite of it the concerned Dr failed to diagnose the breast cancer and at that time it was not very serious and may be cured but due to his negligence and carelessness, medicines were given for other disease for a long time and during this period the cancer cells continue to increase and they also spread other breast and other parts of the body which ultimately caused the death of the patient.
The opposite party - 3 Dr S Khanduja is MD radiology who performed Mammography of Smt Geeta Devi and submitted his report showing the sign of cancer but opposite party - 2 did not pay attention towards the side and started the treatment of Filaria . The opposite party - 3 has said that there is no question of any medical negligence and deficiency in service by him. The machines used by Kmla Nehru Hospital where the standard machines and the report was prepared by the opposite party - 3 on the basis of those machines. For the purpose of Mammography , the machine used is of Siemens company and it is of very high standard. The opposite party - 3 did not prescribe any medicines for the patient he simply submitted his report. It is clear that a opposite party - 3 is neither the physician nor a surgeon but he is radiologist. His work and with the report of the radiology. Thereafter it is the duty of concerned physician or surgeon or doctor of specialised branch to prescribe medicines to the patient according to the report. Therefore there is no negligence on the part of opposite party - 3 . The medicines were prescribed by the opposite party - 2 of General Surgery Department.
Now let us see the oath taken be a doctor before entering the nobel profession of the Medical World. As per guidelines of MCI, Every member should get it framed in his or her office it should never be violated in its letter and spirit.
"I solemnly pledge myself to consecrate my life to service of humanity.
Even under threat, I will not use my medical knowledge contrary to the laws of Humanity.
I will maintain the utmost respect for human life from the time of conception.
I will not permit considerations of religion, nationality, race, party politics or social standing to intervene between my duty and my patient.
I will practice my profession with conscience and dignity.
The health of my patient will be my first consideration.
I will respect the secrets which are confined in me.
I will give to my teachers the respect and gratitude which is their due.
I will maintain by all means in my power, the honour and noble traditions of medical profession.
I will treat my colleagues with all respect and dignity.
I shall abide by the code of medical ethics as enunciated in the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations 2002.
I make these promises solemnly, freely and upon my honour."
The complexity of the human body and the uncertainty involved in the medical procedure are of such great magnitude that it is impossible for a Doctor to guarantee a successful result; and the only assurance that he can give, or can be understood to have given by implication is that he is possessed of requisite skill in that branch of profession which he is practising and while undertaking the performance of the task entrusted to him, he would be exercising his skills with reasonable competence. An ordinary physician or surgeon is not expected to be either a clodhopper or feckless practitioner of profession, as much as, he is not expected to be a paragon, combining qualities of polymath or prophet as in the realm of diagnosis and treatment, there is ample scope for genuine difference of opinion; and a Doctor cannot be treated as negligent merely because his conclusion differs from that of other persons in the profession, or because he has displayed less skill or knowledge than others would have shown. The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of, if acting with ordinary care. Furthermore, a golden principle of law has been laid down by the Hon'ble Apex Court in Jacob Mathew Vs. State of Punjab, (AIR 2005 SC 3180) that no sensible professional would intentionally commit an act or omission which would result in loss or injury to the patient as the professional reputation of the person is at stake. A single failure may cost him dear in his career. Even in civil jurisdiction, the rule of res ipsa loquitor is not an universal application and has to be applied with extreme care and caution to the cases of professional negligence and in particular that of the doctors, else it would be counter productive. Simply because a patient has not favourably responded to a treatment given by a physician or a surgery has failed, the doctor cannot be held liable per-se by applying the doctrine of res ipsa loquitor. Yet, another golden principle of law has been laid down by the Hon'ble Apex Court in Indian Medical Association Vs. V.P. Santha's III (1995) CPJ 1 (SC) at para 37 that "it is no doubt true that sometimes complicated questions requiring recording of evidence of experts may arise in a complaint about deficiency in service based on the ground of negligence in rendering medical services by a medical practitioner; but this would not be so in all complaints about deficiency rendering services by a medical practitioner. There may be cases which do not raise such complicated questions and the deficiency in service may be due to obvious faults which can be easily established such as removal of the wrong limb or the performance of an operation on the wrong patient or giving injection of a drug to which the patient is allergic without looking into the out patient card containing the warning or use of wrong gas during the course of an anaesthetic or leaving inside the patient swabs or other items of operating equipment after surgery. Furthermore, it has been observed in Malay Kumar Ganguli's case (AIR 2010 SC 1162) that" charge of professional negligence on a medical person is a serious one as it affects his professional statusand reputation and as such, the burden of proof would be more onerous. A doctor cannot be held negligent only because something has gone wrong. He also cannot be held liable for mischance or misadventure or for an error in judgment in making a choice when two options are available. The mistake in diagnosis is not necessarily a negligent diagnosis." In the instant matter, thus a simple test, in the light of aforesaid observations, needs to be conducted in order to ascertain whether the Doctor is guilty of any tortious act of negligence/battery amounting to deficiency in conducting a surgery in the delivery of child and not properly attending the patient, the complainant and consequently, liable to pay damages for leaving cotton mass in the abdomen / stomach due to failure in surgery and deteriorating condition of the patient.
Now, it is required to be seen whether an expert report is necessary in each and every case relating to medical negligence or not ? It has been observed by the Hon'ble Apex Court in Indian Medical Association Vs. V.P. Santha III (1995) CPJ 1 (SC) at para 37 that "it is no doubt true that sometimes complicated questions requiring recording of evidence of experts may arise in a complaint about deficiency in service based on the ground of negligence in rendering medical services by a medical practitioner; but this would not be so in all complaints about deficiency rendering services by a medical practitioner. There may be cases which do not raise such complicated questions and the deficiency in service may be due to obvious faults which can be easily established such as removal of the wrong limb or the performance of an operation on the wrong patient or giving injection of a drug to which the patient is allergic without looking into the out patient card containing the warning or use of wrong gas during the course of an anaesthetic or leaving inside the patient swabs or other items of operating equipment after surgery. Furthermore, in B. Krishna Rao Vs. Nikhil Super Speciality Hospital 2010 (V) SCC513 at para 40 the Hon'ble Apex Court was pleased to hold that it is not necessary to have opinion of the expert in each and every case of medical negligence. The Hon'ble Apex Court was pleased to further hold in Nizam Institute of Medical Sciences Vs. Prashant S. Dhananka and others 2009 (VI) SCC 1 that "in a case of medical negligence, once initial burden has been discharged by the complainant by making of a case of negligence on the part of the hospital or the doctor concerned, the owner then shifts on the hospital or to the attending doctors and it is for the hospital to satisfy the court that there was no lack of care or diligence".
A doctrine or rule of evidence in tort law that permits an inference or presumption that a defendant was negligent in an accident injuring the plaintiff on the basis of circumstantial evidence if the accident was of a kind that does not ordinarily occur in the absence of negligencea plaintiff who establishes the elements of res ipsa loquitur can withstand a motion for summary judgment and reach the jury without direct proof of negligence-- Cox v. May Dept. Store Co., 903 P.2d 1119 (1995).
In Byrne vs Boadle, this maxim was used for the first time where the complainant was injured by a barrel that dropped from the window of the defendant. In the abovementioned case, Pollock, C. B., said "here are many incidents from which no presumption of negligence can arise, but this is not true in every case. It is the duty of persons who keep barrels in a warehouse to take care that they do not roll out and I think that such a case will, beyond all doubt, afford prima facie proof of negligence."
This doctrine intends to help direct the court proceedings to a conclusion, especially if it is established through the implication of this doctrine's rule that the injury caused to the claimant would not have occurred or taken place if the defendant wasn't negligent.This also gives enough cause and evidence to hold the defendant liable for his negligent actions.
DOCTRINE OF RES IPSA LOQUITAR The thing speaks for itselfis the gist of the maxim Res Ipsa Loquitur Maxim. What are the essentials of this maxim.
The injury caused to the plaintiff shall be a result of an act of negligence.
There is a lack of evidence, or the evidence presented before the court is insufficient to establish the possibilities of the fault of the plaintiff or third party.
The defendant owes a duty of care towards the plaintiff, which he has breached.
There is a significant degree of injury caused to the plaintiff.
Applicability of Doctrine of Res Ipsa Loquitur.
The maxim of res ipsa loquitur came into force to benefit the plaintiff as he can use circumstantial evidence to establish negligence.
Consequently, it shifts the burden of proof on the defendant, logic being, where there is an event of unexplained cause, usually, the one that does not occur without the defendant's negligence in controlling the action which has caused the injury to the claimant or destroyed his goods.
In this scenario, the court shall presume negligence on the part of the defendant in such a case unless it includes an appropriate explanation compatible with his taking reasonable care.
In AchutraoHaribhauKhodwa and Others vs. State of Maharashtra and Others, it was considered that the maxim should not be applied in the case of general incidences of neglect and shall only be reflected when there is a significant degree of injury caused.
Section 106 of the Indian Evidence Act Section 106 of the Act provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
Res ipsa loquitur is a Latin phrase that means "the thing speaks for itself." In personal injury law, the concept of res ipsa loquitur (or just "res ipsa" for short) operates as an evidentiary rule that allows plaintiffs to establish a rebuttable presumption of negligence on the part of the defendant through the use of circumstantial evidence.
This means that while plaintiffs typically have to prove that the defendant acted with a negligent state of mind, through res ipsa loquitur, if the plaintiff puts forth certain circumstantial facts, it becomes the defendant's burden to prove he or she was not negligent.
Res Ipsa Loquitur and Evidence Law Accidents happen all the time, and the mere fact that an accident has occurred doesn't necessarily mean that someone's negligence caused it. In order to prove negligence in a personal injury lawsuit, a plaintiff must present evidence to demonstrate that the defendant's negligence resulted in the plaintiff's injury. Sometimes, direct evidence of the defendant's negligence doesn't exist, but plaintiffs can still use circumstantial evidence in order to establish negligence.
Circumstantial evidence consists of facts that point to negligence as a logical conclusion rather than demonstrating it outright. This allows judges and juries to infer negligence based on the totality of the circumstances and the shared knowledge that arises out of human experience. Res ipsa is one type of circumstantial evidence that allows a reasonable fact finder to determine that the defendant's negligence caused an unusual event that subsequently caused injury to the plaintiff.
This doctrine arose out of a case where the plaintiff suffered injuries from a falling barrel of flour while walking by a warehouse. At the trial, the plaintiff's attorney argued that the facts spoke for themselves and demonstrated the warehouse's negligence since no other explanation could account for the cause of the plaintiff's injuries.
As it has developed since then, res ipsa allows judges and juries to apply common sense to a situation in order to determine whether or not the defendant acted negligently.
Since the laws of personal injury and evidence are determined at the state level, the law regarding res ipsa loquitur varies slightly between states. That said, a general consensus has emerged, and most states follow one basic formulation of res ipsa.
Under this model for res ipsa, there are three requirements that the plaintiff must meet before a jury can infer that the defendant's negligence caused the harm in question:
The event doesn't normally occur unless someone has acted negligently;
The evidence rules out the possibility that the actions of the plaintiff or a third party caused the injury; and The type of negligence in question falls with the scope of the defendant's duty to the plaintiff.
As mentioned above, not all accidents occur because of someone else's negligence. Some accidents, on the other hand, almost never occur unless someone has acted negligently.
Going back to the old case of the falling flour-barrel, it's a piece of shared human knowledge that things don't generally fall out of warehouse windows unless someone hasn't taken care to block the window or hasn't ensured that items on the warehouse floor are properly stored. When something does fall out of a warehouse window, the law will assume that it happened because someone was negligent.The second component of a res ipsa case hinges on whether the defendant carries sole responsibility for the injury. If the plaintiff can't prove by a preponderance of the evidence that the defendant's negligence cause the injury, then they will not be able to recover under res ipsa.
States sometimes examine whether the defendant had exclusive control over the specific instrumentality that caused the accident in order to determine if the defendant's negligence caused the injury. For example, if a surgeon leaves a sponge inside the body of a patient, a jury can infer that the surgeon's negligence caused the injury since he had exclusive control over the sponges during the operation.
In addition to the first two elements, the defendant must also owe a duty of care to protect the plaintiff from the type of injury at issue in the suit. If the defendant does not have such a duty, or if the type of injury doesn't fall within the scope of that duty, then there is no liability.
For example, in many states, landowners don't owe trespassers any duty to protect them against certain types of dangers on their property. Thus, even if a trespasser suffers an injury that was caused by the defendant's action or inaction and that wouldn't normally occur in the absence of negligence, res ipsa loquitur won't establish negligence since the landowner never had any responsibility to prevent injury to the trespasser in the first place.
Res ipsa only allows plaintiffs to establish the inference of the defendant's negligence, not to prove the negligence completely. Defendants can still rebut the presumption of negligence that res ipsa creates by refuting one of the elements listed above.
For example, the defendant could prove by a preponderance of the evidence that the injury could occur even if reasonable care took place to prevent it. An earthquake could shake an item loose and it could fall out of the warehouse window, for instance.
A defendant could also demonstrate that the plaintiff's own negligence contributed to the injury. To go back to the flour-barrel example, if the defendant shows that the plaintiff was standing in an area marked as dangerous it could rebut the presumption of negligence created by res ipsa.
Finally, the defendant could establish that he did not owe the plaintiff a duty of care under the law, or that the injury did not fall within the scope of the duty owed. For example, if the law only imposes a limited duty on the defendant not to behave recklessly, then res ipsa will not help the plaintiff by creating an inference of negligence since a negligent action would not violate the duty owed to the plaintiff.
According to the Blacks Law Dictionary the maxim is defined as the doctrine providing that, in some circumstances, the mere fact of accidents occurrence raises an inference of negligence so as to establish a prima facie (at first sight) case. It is a symbol for that rule that the fact of the occurrence of an injury taken with the surrounding circumstances may permit an inference or recipes omission of negligence, or make out a plaintiff's prima facie case and present a question of fact for defendant to meet with and explanation. It is merely a short way of saying that the circumstances attendant on the accident are of such a nature to justify a jury in light of common sense and past experience in inferring that the accident was probably the result of the defendant's negligence, in the absence of explanation or other evidence which the jury believes.
Its use in clinical negligence gained some traction before Bolam and Bolitho. Mahon v Osborne [1939] 1 All ER 535, is an early example of the application of res ipsa loquitur in a case where a surgical swab had been left inside a patient's body.
In Clarke v Worboys (1952) Times, 18 March, CA, a patient noticed burns on her buttock shortly after surgical excision of a breast tumour. The surgery involved cauterisation. The Court of Appeal held that this was a case where res ipsa loquitur applied. The outcome was not one that would ordinarily occur in the absence of negligence, and the surgical team were unable to explain how the injury was caused.
In Cassidy v Ministry of Health [1951] 2 KB 343, Denning LJ succinctly summarised the maxim's application to clinical negligence cases: "I went into hospital to be cured of two stiff fingers. I have come out with four stiff fingers and my hand is useless. That should not happen if due care had been used. Explain it if you can."
Ng Chun Pui Vs Lee Chuen Tat, the first defendant was driving a coach owned by the second defendant westwards in the outer lane of dual carriageway in Hong Kong. Suddenly the course across the central reservation and collided with a public bus travelling in the inner lane of the other carriageway, killing one passenger in the bus and injuring the driver and three others on the bus. The plaintiff could not prove that the defendants were negligent and had caused the accident. They however proceeded on the basis of Res Ipsa Loquitur and shifted the onus on the defendants to prove that they were not negligent. However, they failed to do so. And the judicial committee of the Privy Council held the defendants liable for the plaintiffs injuries. { MarkLuney and Ken Opliphant, Tort Law Text And Materials (Oxford University Press, New York, 2000) pp 173-175 } In A.S. Mittal &Anr Vs State Of UP &Ors , AIR 1979 SC 1570 , the defendants had organised an eye camp at Khurja along with the Lions Club. 88 low risk cataract operations were undertaken during the period of the camp. It was however, disastrous as many of those who had been operated upon lost their eyesight due to post medical treatment. Proceedings against the government initiated for negligence of the doctors. Damages worth Rs.12,500/- were paid as interim belief to each of the aggrieved. The decision was on the basis of Res Ipsa Loquitur as the injury would not ave occurred had the doctors not been negligent in not having followed up with post-operation treatment. Res Ipsa Loquitur can be applied in matters where are the procedures have not been followed and is not just limited to the commission of an act.
We can define 'Medical negligence' as the improper or unskilled treatment of a patient by a medical practitioner. This includes negligence in taking care from a nurse, physician, surgeon, pharmacist, or any other medical practitioner. Medical negligenceleads to 'Medical malpractices' where the victims suffer some sort of injury from the treatment given by a doctor or any other medical practitioner or health care professional.
Medical negligence can occur in different ways. Generally, it occurs when a medical professional deviates from the standard of care that is required.
So, we can say that any kind of deviation from the accepted standards of medication and care is considered to be medical negligence and if it causes injury to a patient then the doctor who operated on him, other staff and/or hospital may be held liable for this.
Some of the common categories of medical negligence are as follows:
Wrong diagnosis - When someone goes to a hospital, clinic or medical room, etc. the first step after admittance is the diagnosis. Diagnosing symptoms correctly is critical and important to provide medical care to any patient. However, if a patient is not treated properly due to any mistake in diagnosis, the doctor can be made liable for any further injury or damages caused as a result of the wrong diagnosis.
Delay in diagnosis - A delayed diagnosis is treated as medical negligence if another doctor would have reasonably diagnosed the same condition in a timely fashion. A delay in diagnosis can cause undue injury to the patient if the illness or injury is left to worsen with time rather than being treated. Obviously, any delay in the identification and treatment of an injury can reduce the chance of recovery for the patient.
Error in surgery - Surgical operations require an enormous level of skill and it should be done with due care and caution because even the slightest mistakes can have profound effects on the patient. The wrong-site surgery, lacerations of any internal organ, severe blood loss, or a foreign object being left in the body of the patients, all this comes under Surgical error.
Unnecessary surgery - Unnecessary surgery is usually associated with the misdiagnosis of patient symptoms or a medical decision without proper consideration of other options or risks. Alternatively, sometimes surgery is chosen over conventional treatments for their expediency and ease compared to other alternatives.
Errors in the administration of anesthesia - Anesthesia is a risky part of any major medical operation and requires a specialist (anesthesiologist) to administer and monitor its effect on the patient. Prior to any medical procedure requiring anesthesia, the anesthesiologist has to review the patient's condition, history, medications, etc. to determine the most suitable of all the medicine to use. Anesthesia malpractice can happen even during the pre-operation medical review or during the procedure itself.
Childbirth and labor malpractice - Childbirth is a difficult event for a woman and it becomes worse if not handled properly by the doctors and nurses. There are many instances of medical negligence during childbirth including the mishandling of a difficult birth, complications with induced labor, misdiagnosis of a newborn medical condition, etc. Long-Term negligent treatment - Medical negligence can also occur in subtle ways over the course of a long treatment period. Usually, the negligence can take the shape of a failure to follow up with treatment, or a doctor's failure to monitor the effects of the treatment properly.
A standard of care specifies the appropriate treatment and medication procedure as per the requirements that should be taken into account by a doctor while providing the treatment to his patients. The care should not be of the highest degree nor the lowest.Here, the degree means the level of care an ordinary health care professional, with the same training and experience, would render in similar circumstances in the same community. This is the critical question in medical malpractice cases and if the answer is "no," and you suffered injury as a result of the poor treatment, you may file a suit for medical malpractice.
In the case of Dr. Laxman Balkrishna Joshi Vs. Dr. TrimbakBapu Godbole and Anr.[ 1969 AIR 128], the Supreme Court held that a doctor has certain aforesaid duties and a breach of any of those duties can make him liable for medical negligence. A doctor is required to exercise a reasonable degree of care that is set for this profession.
Dr. Kunal Saha vs Dr. Sukumar Mukherjee on 21 October, 2011 ( NC) original petition number 240 OF 1999 is one of the most important case regarding medical negligence. The brief facts of the case are-
"Toxic Epidermal Necrolysis ( TEN ) is a rare and deadly disease. It is an extoliative dermatological disorder of unknown cause. A patient with TEN loses epidermis in sheet-like fashion leaving extensive areas or denuded dermis that must be treated like a larze, superficial, partial-thickness burn wound. The incidence of TEN has been reported at 1 to 1.3 per million per year. The female-male ratio is 3:2. TEN accounts for nearly 1% of drug reactions that require hospitalization. TEN has a mortality rate of 25 to 70%.
Smt. Anuradha Saha (in short Anuradha), aged about 36 years wife of Dr. Kunal Saha (complainant) became the unfortunate victim of TEN when she alongwith the complainant was in India for a holiday during April-May 1998. She and the complainant although of Indian original were settled in the United States of America. The complainant is a doctor by profession and was engaged in research on HIV / AIDS for the past fifteen years. Anuradha after acquiring her Graduation and Masters Degree was pursuing a Ph.D. programme in a university of U.S.A. She was a Child Psychologist by profession. Anuradha showed certain symptoms of rashes over her body and received treatment at the hands of Opposite Parties and some other doctors as outdoor patient uptil 10.05.1998 and she was admitted in Advanced Medicare and Research Institute Limited, Calcutta (for short, AMRI), on 11.05.1998, where she was treated by the above-named Opposite Parties and other doctors uptil 16.05.1998. As there was no improvement in her condition, she was shifted to Breach Candy Hospital, Mumbai, on 17.05.1998 by an air ambulance. She was treated in Breach Candy Hospital from 17.05.1998 evening till she breathed her last on 28.05.1998.
Our Complainant as husband of Anuradha felt that the doctors who treated Anuradha and the hospitals where she was treated were grossly negligent in her treatment and her death was occasioned due to gross negligence of the treating doctors and hospitals. Complainant, accordingly, got issued a legal notice to as many as 26 persons i.e. various doctors who treated Anuradha between end of April to the date of her death alleging negligence and deficiency in service on their part and claiming a total compensation exceeding Rs.55 crores from them. Complainant, thereafter filed the present complaint on 09.03.1999 before this Commission claiming a total compensation of Rs. Rs.77,07,45,000/- ( Seventy Seven Crores Seven Lakhs Fourty Five Thousand only). Later he also filed another complaint no. 179 of 2000 in this Commission against Breach Candy Hospital, its doctors and functionaries claiming a further compensation of Rs.25.30 crore ( though the said complaint was later on withdrawn), thereby making claim of compensation exceeding Rs.102 crores, perhaps the highest ever claimed by any complainant for medical negligence before any consumer fora established under the provisions of Consumer Protection Act, 1986 ( in short, the Act). These are some of the facts which make the present case extra ordinary. "
"The present complaint was filed by the complainant against the above-named opposite parties, namely, Dr. Sukumar Mukherjee, Dr. B. Haldar (Baidyanath Halder), Advanced Medicare and Research Institute Limited ( in short the AMRI Hospital ) and Dr. Balram Prasad and Dr.Abani Roy Chowdhury (physician) and Dr.KaushikNandy (plastic surgeon), the Directors of the AMRI Hospital and others claiming a total compensation of Rs. Rs.77,07,45,000/- under different heads alleging various acts of commission and omission on the part of the doctors and hospital amounting to negligence and deficiency in service. Complainant through his brother-in-law Malay Kumar Ganguly also filed criminal complaint against some of the doctors and the hospital under section 304A IPC.
The complaint was resisted by the doctors and the hospital on a variety of grounds thereby denying any medical negligence or deficiency in service on their part. Parties led voluminous documentary and oral evidence and testimonies of some of the witness were even recorded through video conferencing through a Local Commissioner. After a protracted trial and hearing and on consideration of the evidence and material so produced on record and taking note of the legal position governing the question of medical negligence, this Commission ( by a three Member Bench presided over by the then President) dismissed the complaint by an order dated 01.06.2006 holding as under:
In the result, we reiterate that Doctors or Surgeons do not undertake that they will positively cure a patient. There may be occasions beyond the control of the medical practitioner to cure the patients. From the record, it would be difficult to arrive at the conclusion that the injection Depo-Medrol prescribed by Dr. Mukherjee was of such excessive dose that it would amount to deficiency in service by him which was his clinical assessment."
"Thereafter, with regard to the alleged deficiency in the treatment given to Mrs. Anuradha by Opposite Party Doctors 2, 3, 5 and 6, there is no substance. The contention against the hospital that it was not having Burns-Ward, and therefore, the deceased suffered is also without substance. Hence, this complaint is dismissed. There shall be no order as to costs.
Aggrieved by the dismissal of his complaint, the complainant filed Civil Appeal (No.1727 of 2007) in the Honble Supreme Court. It would appear that even before the said appeal was filed before the Hon'ble Supreme Court, the Supreme Court was seized of the matter in Criminal Appeal Nos.1191-94 of 2005 filed by Malay Kumar Ganguly, the complainant in the criminal complaint, against the Orders passed by the Calcutta High Court. Since the Criminal Appeals and the Civil Appeal filed by the complainant in the present complaint raised the same questions of fact and law, the Hon'ble Supreme Court heard all the appeals together and decided the same by means of a detailed judgment dated 07.8.2009. By the said order, the Apex Court dismissed the Criminal Appeals filed by Shri Malay Kumar Ganguly but allowed the Civil Appeal No. 1727 of 2007 filed by the complainant and set aside the order dated 01.6.2006 passed by this Commission dismissing the complaint and remanded the matter to this Commission for the limited purpose of determining the adequate compensation, which the complainant is entitled to receive from the subsisting opposite parties by observing as under:
So far as the judgment of the Commission is concerned, it was clearly wrong in opining that there was no negligence on the part of the Hospital or the doctors. We, are, however, of the opinion, keeping in view the fact that Dr.KaushikNandy has done whatever was possible to be done and his line of treatment meets with the treatment protocol of one of the experts viz.. Prof. Jean Claude Roujeau although there may be otherwise difference of opinion, that he cannot be held to be guilty of negligence.
We remit the case back to the Commission only for the purpose of determination of the quantum of compensation. We, keeping in view the stand taken and conduct of AMRI and Dr. Mukherjee, direct that costs of Rs.5,00,000 and Rs.1,00,000 would be payable by AMRI and Dr. Mukherjee respectively.
We further direct that if any foreign experts are to be examined it shall be done only through video conferencing and at the cost of the respondents.
Summary In view of the foregoing discussion, we conclude as under:
The facts of this case viz., residence of the complainant and Anuradha (deceased) in USA and they working for gain in that country; Anuradha having been a victim of a rare and deadly disease Toxic Epidermal Necrolysis (TEN) when she was in India during April-May 1998 and could not be cured of the said disease despite her treatment at two superspeciality medical centres of Kolkata and Mumbai and the huge claim of compensation exceeding Rs.77 crores made by the complainant for the medical negligence in the treatment of Anuradha makes the present case somewhat extraordinary."
"The findings given and observations made by the Supreme Court in its judgment dated 07.08.2009 are absolutely binding on this Commission not only as ratio decidendi but also as obiter dicta also, the judgment having been rendered by the Supreme Court in appeal against the earlier order passed by a three Member Bench of this Commission and, therefore, no attempt can be allowed to read down / dilute the findings and observations made by the Supreme Court because the Supreme Court has remitted the complaint to this Commission only for the purpose of determination of the quantum of compensation after recording the finding of medical negligence against the opposite parties and others.
The task entrusted to the Commission may appear to be simple but the facts of the present case and the voluminous evidence led on behalf of the complainant has made it somewhat arduous. Still difficult was the task of apprortionment of the liability to pay the awarded amount by the different opposite parties and perhaps it was for this reason that the Supreme Court has remitted the matter to this Commission."
"Multiplier method provided under the Motor Vehicles Act for calculating the compensation is the only proper and scientific method for determination of compensation even in the cases where death of the patient has been occasioned due to medical negligence / deficiency in service in the treatment of the patient, as there is no difference in legal theory between a patient dying through medical negligence and the victim dying in industrial or motor accident. The award of lumpsum compensation in cases of medical negligence has a great element of arbitrariness and subjectivity. "
"The foreign residence of the complainant or the patient and the income of the deceased patient in a foreign country are relevant factors but the compensation awarded by Indian Fora cannot be at par which are ordinarily granted by foreign courts in such cases. Socio economic conditions prevalent in this country and that of the opposite parties / defendants are relevant and must be taken into consideration so as to modulate the relief. A complainant cannot be allowed to get undue enrichment by making a fortune out of a misfortune. The theoretical opinion / assessment made by a Foreign Expert as to the future income of a person and situation prevalent in that country cannot form a sound basis for determination of future income of such person and the Commission has to work out the income of the deceased having regard to her last income and future prospects in terms of the criteria laid down by the Supreme Court.
There exists no straight jacket formula for apportionment of the awarded compensation amongst various doctors and hospitals when there are so many actors who are responsible for negligence and the apportionment has to be made by evolving a criteria / formula which is just going by the nature and extent of medical negligence and deficiency in service established on the part of different doctors and hospitals.
On a consideration of the entirety of the facts and circumstances, evidence and material brought on record, we hold that overall compensation on account of pecuniary and non pecuniary damages works out to Rs.1,72,87,500/- in the present case, out of which we must deduct 10% amount on account of the contributory negligence / interference of the complainant in the treatment of Anuradha. That will make the net payable amount of compensation to Rs.1,55,58,750/- (rounded ofto Rs.1,55,60,000/-). From this amount, we must further deduct a sum of Rs.25,93,000/- which was payable by Dr. Abani Roy Chowdhury (deceased) or his Legal Representative as the complainant has forgone the claim against them.
In view of the peculiar facts and circumstances of the case and as a special case, we have awarded a sum of Rs. 5,00,000/- as cost of litigation in the present proceedings.
The above amount shall be paid by opposite parties no.1 to 4 to the complainant in the following manner:
(i) Dr. Sukumar Mukherjee-opposite party no.1 shall pay a sum of Rs.40,40,000/- (Rupees Forty Lakh Forty Thousand only) i.e. [Rs.38,90,000/- towards compensation and Rs.1,50,000/- as cost of litigation].
(ii) Dr. B. Haldar (Baidyanth Halder)-opposite party no.2 shall pay a sum of Rs.26,93,000/- (Rupees Twenty Six Lakh Ninety Three Thousand only) i.e. [Rs.25,93,000/- towards compensation and Rs.1,00,000/- as cost of litigation]
(iii) AMRI hospital-opposite party no.3 shall pay a sum of Rs.40,40,000/- (Rupees Forty Lakh Forty Thousand only ) i.e. [Rs.38,90,000/- towards compensation and Rs.1,50,000/- as cost of litigation .
(iv) Dr. Balram Prasad-opposite party no.4 shall pay a sum of Rs.26,93,000/- (Rupees Twenty Six Lakh Ninety Three Thousand only) i.e. [Rs.25,93,000/- towards compensation and Rs.1,00,000/- as cost of litigation] The opposite parties are directed to pay the aforesaid amounts to the complainant within a period of eight weeks from the date of this order, failing which the amount shall carry interest @ 12% p.a. w.e.f. the date of default."
In this case when we see the facts of the case it is clear that this case comes under the maxim res ipsa loquitur. Opposite party - 1 and 2 were careless in the treatment of the patient who ultimately died of breast cancer on 08.05.2013 just at the age of 44 years. We have discussed the Mammography in the very beginning and this report clearly indicated the possibility of breast cancer but the concerned Dr did not go forward for breast cancer and he took it very lightly presuming it to be a disease of Filaria . From so many dates he never came to understand the problem of the patient and wrote prescription in a stereotype manner without going to the root of the disease. Here circumstances speak themselves that the doctor was careless in toto.
The primary responsibility of a doctor is to ensure they can provide their patients with the best level of care. A talented doctor can perform these tasks efficiently while practising a range of soft skills, such as effective communication. When considering a career in medicine, it may be helpful to know the basic duties a doctor performs daily.
What are a doctor's responsibilities?
There are seven key tasks that make up a doctor's responsibilities that most perform as part of their daily working routine. The duties of a doctor may vary depending on where they work, the type of doctor they are and the conditions of the patients they treat that day. While there may be some differences in a doctor's primary tasks, outlined below are seven common duties that doctors within any speciality can typically perform. These include the following:
Diagnosing any illness and other conditions A Dr is qualified to diagnose a range of illness, injuries, diseases or pains that a patient may be experiencing. The made in several tests on a patient before they reach their final diagnosis to ensure their decision is accurate. They also want to ensure that they can rule other illnesses out the time it takes for a Dr to make a diagnosis depends on what the ailment is and the severity of symptoms that the patient showing. For injuries, doctors can usually make an accurate diagnosis straightaway, whereas diseases or chronic illness may take a few weeks to Dr to detect.
Planning and conducting a patient's course of treatment following a diagnosis, a doctor may then plan and prepare a course of treatment for the patient. Individuals in this profession use their technical knowledge and medical research skills to find the quickest and most effective form of treatment. This process may include finding suitable medication, providing care for any external wounds or referring the patient to be more specialised doctor.
A doctor typically discusses their recommended treatment course with the patient to ensure that the individual is happy to proceed. If the doctor is treating a child, they may require the parents permission to conduct the treatment plan.
Any stream follow-up care for patients if necessary if a doctor feels they cannot treat a patient effectively, they may refer the patient to a specialist organisation or healthcare provider. This may occur if a patient is experiencing problems with their teeth, eyes or mental health because a dentist, optometrist or psychiatrist is more likely to find the root of the issue.
The doctor may also ask the patient to make a follow-up appointment with them for a variety of reasons. The reasons may be to check the progress of symptoms, run further tests and administer higher or lower doses of medication. They may also ask patients to arrange a further appointment to discuss any blood test or laboratory results. For the Bulls, the doctor may want to redress bandages and thoroughly cleanse the cut to prevent infection.
Consulting with other healthcare professionals during their working day, a doctor may consult with other healthcare professionals that work at their organisation or a specialist unit. A doctor may ask a nurse practitioner to assist them with running tests or consult with a fellow doctor to gain a second expert opinion on the patient's case. If they wish to have a patient admitted to hospital they may communicate with hospital staff via telephone to arrange an appointment on behalf of the patient.
If a patient is experiencing symptoms that are associated with a specific area in medicine, a doctor may contact a specialist unit to consult with a specialist Dr. For example if a patient is complaining of frequent chest pains, a doctor may consult with cardiologist to discuss a suitable treatment plan.
Prescribing medication a doctor is also responsible for prescribing the most effective medicine for a patient's symptoms. They may write a prescription for the patient to take with them to a pharmacy or contact the pharmacy directly. Doctors can prescribe medication to either cure illness or offer relief from symptoms. This medication can take various forms, including tablets, gels, creams and liquids.
To ensure the prescribed medication is effective, the doctor may ask the patient to schedule a follow-up appointment. If the medicine has made no improvements to the patient's illness, the doctor can then consider other medications or alternative forms of treatment. It is crucial that a doctor is aware of the patient's allergies or intolerances before prescribing medication.
Staying updated with medical research a skilled doctor requires a wealth of technical knowledge to identify and treat ailments. As technological and medicinal research progresses, it is responsible to offer doctor to show that they are up to date on the latest advancements in the healthcare industry. This includes researching new diseases, understanding the risks and benefits of new medications and learning how to conduct new procedures. Stay knowledgeable about the latest research is essential for doctors to offer their patients the most accurate and safe advice.
In this case the opposite party - 2 has said that if the complainant had any interest from the very beginning or they had lost faith in party - 2 at any point of time during their visits, as mentioned in the complaint, they could have consulted any other doctor. The complainant has stated these words when he came to know that his wife was suffering from breast cancer and the treatment was given that is of Filaria , thereafter he reiterated these words. But opposite party - 2 is a doctor and it was his primary responsibility to satisfy the patient and if he found that the medicines were not responding well and as per the report of Mammography, there might be some chance of breast cancer, he would have referred the patient to the oncologist for his opinion but he did not do so. The patient has faith in Dr and he visited the doctor again and again on the advice of the doctor. When the opposite party - 2 has asked him to come after some date for follow-up checkup, he must come for follow-up checkup but when ultimately he believes that there is no improvement in the health of his wife, he will take any other recourse for further treatment. But it is the doctor whose primary responsibility is to satisfy fully the patient who has come before him. As per tests and reports of Ultrasound and Mammography, there was indication of cancer because the size of the lymph node et cetera indicate the possibility of cancer and the matter is related to the breast and as we know breast cancer is very common so it was the duty of the concerned Dr to take the opinion of oncologist at the earliest in which he failed totally.
The complainant BHU and got her wife examined to Dr HS Shukla cancer specialist whose prescription is as follows:
The complaint was advised to visit Tata Memorial Hospital, therefore he immediately went to Tata Memorial hospital and got her wife examined. The prescriptions and investigation report of Tata Memorial hospital are reproduced here for ready reference:
Breast cancer has been confirmed their. Thereafter masses were prescribed and chemotherapy also started. The best cancer was at its last stage.
It shows that there was negligence at the primitive level. So the first responsibility was opposite parties - 1 and 2 to examine the patient with great care and caution and it should have been referred to oncologist for the confirmation of breast cancer which they did not to or in other words they did not discharge their duty with responsibility and loyalty. Opposite party - 2 is responsible for showing negligence and carelessness and opposite party - 1 is vicariously liable for the acts and omissions of the opposite party - 2. Thus opposite parties - one and two are responsible for showing evidence towards the patient. Opposite party - 3 has no role in negligence or carelessness because he is radiologist and he performed his duty and submitted the report to the concerned Dr/patient.
The complainant has prayed the relief in various heads amounting to total Rs.5,610,000/- for various heads. After going and considering all the facts and circumstances of the case it is clear that negligence has shown by the doctor, we are of the view that complainant is entitled for total compensation of Rs.50 lakhs with interest at a rate of 10% per annum from 07.08.2012 payable within 45 days from the date of judgment of this complaint otherwise the rate of interest shall be 15% per annum payable from 07.08.2012 till the date of actual payment. The complaint case is decided accordingly.
ORDER The opposite parties no 1 & 2 are directed to pay Rs.50 lakhs to the complainant towards cost of medical expenses, mental agony, physical pain, depression and harassment, loss of income and companionship, cost of litigation with interest at a rate of 10% per annum from 07.08.2012 which will be payable within 45 days from the date of judgment of this complaint case otherwise the rate of interest shall be 15% per annum we shall be payable from 07.08.2012 till the date of actual payment. The complaint case is decided accordingly.
If the order is not complied with, within 45 days, the complainant shall be entitled to file execution case in this court at the cost of the opposite parties - 1 and 2.
The stenographer is requested to upload this order on the Website of this Commission today itself.
Certified copy of this judgment be provided to the parties as per rules.
(Sushil Kumar) (Rajendra Singh) Member Presiding Member Judgment dated/typed signed by us and pronounced in the open court. Consign to record. (Sushil Kumar) (Rajendra Singh) Member Presiding Member Dated March 13, 2023 JafRi, PA I, Court 2 [HON'BLE MR. Rajendra Singh] PRESIDING MEMBER [HON'BLE MR. Vikas Saxena] JUDICIAL MEMBER