Appeared at the time of arguments:
For the Appellants : Mr. Akshat Shrivastava, Advocate
For the Respondents : Mr. Sandeep Narain, Advocate
Pronounced on: 23rd May 2023
1. The present Appeal is directed against the order dated 26.06.2012 passed by Maharashtra State Consumer Disputes Redressal Commission (for short, the ‘State Commission’) at Mumbai in Complaint Case No. CC/09/54, whereby the State Commission dismissed the complaint filed by the Appellant.
2. The Complainant (for short patient) was initially consulted Dr. R. K. Purohit at Purohit General Hospital & Research Centre for her abdominal pain. The Ultrasonography and endoscopy was carried out on 16.03.2007. It was reported as ulcerated growth in cardio oesophageal junction also the biopsy was taken from the ulcer margin. On 21.03.2007, she was referred to the Tata Memorial Hospital (TMC), Mumbai OP-1 for further management. She gave the biopsy for histopathology study in TMC, but the report was not ready till 23-24/03/2007. Dr. Sudeep Gupta (OP-2), without examining the reports, verbally informed the relatives of the Complainant that she was suffering from Cancer Stage-IV and advised to take four cycles of chemotherapy at their hometown in Chhattisgarh. Due to shortage of money she purchased drugs for two cycles of chemo. The Complainant took first two cycles at Maharana Bhupal Government Hospital at Udaipur on 27.03.2007 and 18.04.2007. In between, the blood transfusion was given, but her condition further deteriorated, therefore, the patient came back to TMC on 11.06.2007. The OP-2 examined her and investigated including pleural fluid cytology. It revealed no malignancy. Therefore, the Complainant lost the confidence in OP-1 & 2 and took discharge on 16.06.2007. She went back to the Udaipur and admitted in Rajasthan Hospital. She was investigated for TB and also endoscopy done on 28.06.2007. It was reported as features of “chroic atrophic gastritis with focal area of neutropilic exudates and there was no evidence of dysplastic/malignant changes”. Thereafter she made enquiry with few doctors who told that OP-1 Hospital was wrongly treated the patient. In fact histopathology report dated 29/3/2007 had opined that there was no malignancy in the biopsy sample but the Complainant received the report only on 12/6/2007 from the OP No. 1, Hospital. She suffered from Tuberculosis, but taken two chemo cycles unnecessarily. Being aggrieved due to alleged medical negligence and deficiency in services, the Consumer Complaint was filed before the State Commission against the OP claiming Rs. 72,58,000/-.
3. The OPs in their reply denied any negligence or deficiency from their end. The OP No.2 clarified that best possible professional care and skill was taken to start the patient on appropriate management in the then existing circumstances, when the overall picture of the Complainant strongly supported gastric carcinoma. Even now there was suspicion of carcinoma stomach/pulmonary koch's exists as per the Complainant's own report from a hospital at Udaipur. It was the fault of the Complainant who didn’t wait to collect the HPE report and he didn’t stay in the hospital but insisted to go to his home town. It was further submitted that she took only one cycle of chemotherapy.
4. The State Commission dismissed the Complainant. Being aggrieved Complainant filed instant appeal.
5. Heard the arguments from the Counsel on both the sides. They have reiterated their evidence, filed the medical literature and references on cancer treatment.
6. The grouse of the Complainant was that he brought the biopsy of stomach growth from Udaipur, it was given at OP-1 hospital for HPE study but the OP-2 - Dr. Sudeep Gupta prescribed chemotherapy without waiting for the biopsy (HPE) report. Thus, she took two cycles of chemotherapy on 27.03.2007 and 18.04.2007 at her home town. She developed severe complications. Due to gross negligence of the OPs, the Complainant suffered in physical and financial hardship. Surprisingly, the HPE was reported as "moderate to severe chronic active gastritis with atrophy and foveolar hyperplasia. H. Pylori organisms are noted." It was negative for malignancy. Thus, the OP-2 failed in his duty of standard care but diagnosed her as not only suffering from cancer but also new born cancer too.
7. On perusal of medical record, it is evident that on 21/3/2007 the Complainant handed over the biopsy tissues for HPE but the report was not ready on 23-24/03/2007. The OP-2 orally informed the Complainant's relatives that she was suffering from Cancer Stage-IV. The OP-2 advised the Complainant to take four cycles of chemotherapy and gave prescription dated 24/3/2007 at her hometown. According to the Complainant, she had come to the OP-1, Hospital all the way from the State of Chhattisgarh and she had no enough money to purchase. At Udaipur on 27/3/2007, the Complainant took first cycle at Maharana Bhupal Government Hospital. After taking two cycles of chemotherapy the Complainant's condition not improve but it deteriorated and she suffered continuous vomiting, unable to take orally, acute body pain, loss of hair from head, skin all over body had blackened. She was totally bed-ridden and had repeated fever and breathing problem. Therefore, on 3/5/2007 she was admitted in Rajasthan Hospital and Research Centre till 11/5/2007. The OP-2 Dr. Sudeep Gupta was telephonically contacted who advised not to administer third chemo and to bring the patient to OP-1 hospital.
8. Dr. Narayan, Medical Superintendent, in his evidence, stated that the OP-2 advised the Complainant to take planned chemotherapy cycles at the OP-1 Hospital, so that she could be monitored properly. The Complainant, however, chose to leave Mumbai immediately to return her native place and to take subsequent treatment there. In the circumstances, the OP-2 doctor simply issued recommendatory letter dated 24/3/2007 for the chemotherapy to be taken under the guidance of an oncologist impliedly with such medical requirements, checks and precautions as may be warranted.
9. The pivotal issue is that was it a reasonable standard of practice to advice Chemotherapy without tissue diagnosis (HPE). In the instant case, admittedly the biopsy specimen was given to OP-1 on 21.03.2007, but the OP-2 on the basis of clinical and radiological assessment diagnosed it as a malignancy and without waiting for the HPE report advised EOX regime for the patient. The OP-1 at the time of discharge gave the patient a recommendatory letter for chemotherapy under the guidance of an Oncologist. It was also advised that the CBC/Liver Function Test/RFT had to be done before administering each cycle.
Moreover, the contention of OP that the relatives of the Patient were also negligent in not enquiring about the result of HPE report, they should have enquired about it within one week about the status of the report. In my view, such contention is not tenable in the instant case.
10. The Hon’ble Supreme Court in the case of Devarakonda Suryasesha Mani & Ors. versus Care Hospital, Institute of Medical Sciences & Ors, while dismissing the appeal filed by the Complainant held that:
unless the appellants are able to establish before this Court any specific course of conduct suggesting a lack of due medical attention and care, it would not be possible for the Court to second-guess the medical judgment of the doctors on the line of medical treatment which was administered to the spouse of the first appellant. In the absence of any such material disclosing medical negligence, we find no justification to form a view at variance with the view which was taken by the NCDRC.
In the instant case, without tissue diagnosis advising chemo was the act of omission. It amounts to lack of due care from OP-2, thus medical negligence.
11. I find this case is of contributory negligence, because the patient herself was negligent, who did not bother to collect the biopsy report from TMC and secondly, before starting first cycle of Chemo, the concern hospital did not verify the biopsy report.
12. Thus, considering the peculiar facts and circumstances of the instant case, as the incident occurred in 2007, we are now in 2023 the Complainant deserves just and proper compensation. To meet the ends of justice, in my view, Rs. 5 lakh appears to be just and adequate compensation.
The instant First Appeal is partly allowed.
The OPs are directed to pay Rs.5 lakh jointly and severely to the Complainant within six weeks from today, failing which, the amount shall carry interest of 9% p.a. till its realization.