An important case for Radiologists, Pathologists and Oncologist in particular…
The judgment starts with the preface which clarifies the case in hand.
“As malignant primary bone tumors are rare cancers, and as management is complex, the accepted standard is to provide access to the full spectrum of care. The cancer treatment centers, the therapy is usually given within the framework of prospective, often collaborative, clinical studies, or established treatment protocols.
An initial chemotherapy can have life-changing consequences, but unfortunately, osteosarcoma is an aggressive form of cancer, and increase in size after chemotherapy can result in limb sparing surgery or an amputation depending on the stage and spread of the cancer.”
The National Commission in its judgment dated 17/07/2017 came to the rescue of Doctors and Well known Hospital in the Country…
BINOD CHOUDHARY & 3 ORS. V/s. #TATAMEMORIALCENTRE & 2 ORS,
CONSUMER CASE NO. 909 OF 2017
Case of the complainant in short :
1. The deceased 25 years old patient Mr. Vishnu Raj Choudhary was diagnosed at Pune for Bone Cancer of his left leg(Tibia), in May 2014 and for further Treatment he went to Tata Memorial Center (TMC) where he consulted the opponents in this case i.e. Dr. Asish Gulia and Dr. Ajay Puri.
2. After the tests, the Doctors assured the patient that the case is 100% curable and after PET/CT, it was confirmed the case of sarcoma in the left tibia without any histopathology examination (HPE) confirmed it as distant metastasis and High-Grade Pleomorphic Osteosarcoma. The patient was advised for initial 4 sets/cycles of chemotherapy to check the progress of tumour cells and then surgery, which thereafter was to be followed by another set of chemotherapy to end the treatment.
3. A blister developed over the scene after 2nd cycle at the place of Tumor. The Dr. opined it as the side effect of Chemotherapy, but the tumor size increased, but the treatment was not changed. At 3rd cycle, CT thorax was also done and three small nodules of less than 5 mm in the lungs of the patient were revealed. The patient and the relatives requested the Doctors to remove the same, but the doctor assured them that Chemo is effective and there is no need of immediate surgery.
3. During 4th cycle, the patient was admitted in the Hospital for surgery. On the day of surgery, the Patient was asked to take bath. But according to the Complainant, there was no one from the hospital to assist the patient to go up to the Bathroom and the relatives had gone to purchase some medicines. Thus as a last resort, patient on his own with crutches reluctantly went to the bathroom, but slipped and suffered a fracture of the left tibia. Thus, according to the complainants, the patient was a victim of carelessness and negligence. It was further alleged that the patient was unattended by Sr. Doctors and Doctors had to go abroad, due to delay in the treatment of the patient developed
It was further alleged that the patient was unattended by Sr. Doctors and Doctors had to go abroad, due to delay in the treatment of the patient developed post-fracture complications, the left leg would have been saved from amputation and ultimately the patient succumbed to Death at AIIMS. The Chemo also caused complications. 5th Chemo without surgery was given just to enhance the Bill of the Hospital.
4. It was further alleged that the Doctors at AIIMS were shocked to see that why there was delay of 2 months and the fracture was a pathological fracture due to Sarcoma of bone, which never re-join.
5. The Doctors at AIIMS also continued Chemo and again 5 cycles were continued (total 11 chemos), without the surgery. The patient thereafter transferred to Medanta Hospital and lastly to Fortis Memorial hospital (where he was diagnosed as Osteosarcoma (Post Chemotherapy) , where he took his last breath. Thus, the case claiming total claim of Rs.7,36,00,000/- was filed.
Defense of Doctors :
The treatment given was as per protocol. The hospital is the reputed cancer Hospital . There was no negligence on part of Doctors.
1. The National Commission after hearing the arguments and after perusing Hospital Record and medical literature dismissed the Complaint.
2. The Commission observed that the Dr. Ajay Puri, one of the reputed oncologist started the treatment of Osteosarcoma initially with cycles of chemotherapy and thereafter planned for surgical excision. But when it was revealed @ 4th Cycle that Chemo is not getting effective results, the surgery was planned. But on the day of surgery, unfortunately, the patient suffered Fracture of left Tibia, also known as “pathological fracture” as such fractures occur during normal activity or minor trauma due to the weakening of the bone by disease and in the present case growing a malignant tumour in the left tibia. Thus the patient should have waited for someone’s assistance and on the contrary, as per medical record, Drs gave necessary treatment for such fracture.
3. While negating the allegations of the Complainant regarding delay in surgery, the Commission observed as mentioned in the preface and referred hereinabove
4. It was also observed after relying upon the landmark judgments of Apex Court that there was no breach of the duty to take care and the pathological fracture and subsequent deterioration of patient’s health was due to the High Grade Osteosarcoma disease itself. Quoting Kusum Sharma & Others vs Batra Hospital & Medical Research Centre and others, the court said
“We must not look at the 1947 accident with 1954 spectacles”. But we should be doing a disservice to the community at large if we were to impose liability on hospitals and doctors for everything that happens to go wrong. Doctors would be led to think more of their own safety than of the good of their patients. Initiative would be stifled and confidence shaken. A proper sense of proportion requires us to have regard to the conditions in which hospitals and doctors have to work. We must insist on due care for the patient at every point, but we must not condemn as negligence that which is only a misadventure.
5. It’s a landmark judgment itself in these days where cancer patients are increasing day after day. No doubt the deceased must have undergone tremendous physical and mental pain and so did his family. But as it is Said that Medical Science is an incomplete science, it has its limitations and we have to accept that.
At the same time we have to keep in mind that Drs would feel insecure to even hold a scalpel if CPA is used as a halter round the neck… Yet again proper procedure, documentation saved Drs..
Thanks & Regds,
Adv. Rohit Erande.