Not advising whole body PET scan not medical negligence: Consumer Court relief to Radiation Oncologist, Hospital

A Z Khwaja, Presiding Member, S D Wandhare, Member, K S Kapse, Member, while pronouncing the judgement clarified that the doctor carried out all necessary investigations in a prompt manner, and the complainants failed to establish that the doctor and the hospital had failed to exercise the standard care as was expected while giving treatment to the patient.

The case concerned the patient, who was referred to Jupiter Hospital for medical evaluation. She was diagnosed with stage II B Cancer by the Chief Oncologist on August 8, 2016. The prescribed treatment included 25 rounds of Radiotherapy, 5 sessions of Chemotherapy, and 4 sessions of Brachytherapy. However, the legal heirs of the patient claimed that the hospital failed to recommend a necessary Whole Body PET Scan at the initial stage for a comprehensive diagnosis. Despite undergoing the recommended treatment, the patient's condition worsened, leading to further examinations elsewhere, including a whole-body bone scan, which revealed Skeletal Metastases. However, the patient eventually died on July 24, 2017.

Aggrieved, the heirs of the deceased moved the Commission alleging serious and gross medical negligence by the doctor and the hospital, arguing that the hospital failed to recommend a necessary Whole Body PET Scan at the initial stage, leading to a delayed detection of cancer in the spinal cord that eventually led to the patient's death.

The complainants argued that the Hospital and the doctor displayed gross negligence from the initial diagnosis, failing to provide appropriate advice that could have potentially saved the life of the patient. Despite charging high fees, the Hospital allegedly did not fulfill its duty to safeguard the patient's life. The complainants contended that due to misguided advice and improper treatment, they had to bear additional expenses of Rs 10,00,000. They alleged that although the patient was initially cured of cancer in her pelvic area, negligence by the doctors at Jupiter Hospital resulted in a delayed detection of cancer in the spinal cord. The doctor, serving as the Chief Radiation Oncologist at Jupiter Hospital, was accused of significant negligence, constituting a deficiency in service under Section 2(1)(g) of the Consumer Protection Act, 1986. The complainants claimed substantial financial, personal, and mental losses, seeking compensation of Rs 50,00,000 from Jupiter Hospital (O.P. No. 1) and the oncologist (O.P. No. 2).

In response, the hospital and the doctor vehemently contested the allegations, initiating a detailed legal proceeding.

Jupiter Hospital raised a preliminary objection, arguing that the State Consumer Commission in Nagpur lacked territorial jurisdiction to address the complaint. They contended that both Hospital and the oncologist conducted their business in Thane, not Nagpur, and invoked Section 17(2) of the Consumer Protection Act, 1986. Jupiter Hospital, a tertiary care hospital, asserted that it provided effective medical care and relief, emphasizing its comprehensive facilities, including a 350-bed hospital, a 24-hour Casualty Department, ICU, ICCU, and advanced diagnostic capabilities.

The hospital claimed that the patient was referred with a suspected diagnosis of carcinoma cervix stage IIA and received appropriate treatment, including radical concurrent radio-chemotherapy. The hospital denied any deficiency in services and argued that it acted in the patient's best interest, providing the best possible medical care.

Jupiter Hospital disputed the necessity of a whole-body PET Scan and asserted that the complainants failed to establish medical negligence or deficiencies in service. They contended that the complaint lacked a cause of action as it was filed beyond the stipulated timeframe, suggesting an ulterior motive to extract money. Jupiter Hospital insisted that there was no negligence and deficiency in the services rendered, emphasizing its modern oncology unit managed by skilled oncologists. The burden to prove medical negligence, according to hospital, rested with the complainants, who allegedly failed to discharge this burden. The hospital further argued that the complainants were not entitled to monetary compensation, and their complaint, filed with unclean hands, lacked substance and should be dismissed with costs.

Meanwhile, the oncologist, submitted a separate written response challenging the complaint. Similar to Jupiter Hospital, the doctor raised objections to the complaint's tenability, citing a lack of territorial jurisdiction among other grounds. The doctor acknowledged the patient was referred with a suspected diagnosis of carcinoma cervix stage II A by Dr. Ajgaonkar. He categorically denied examining the patient casually or routinely and asserted that thorough clinical examinations and necessary investigations were conducted following standard treatment protocols.

The oncologist contended that the clinical examination revealed the disease's extension to the parametrium medially, later confirmed as Cancer Cervix FIGO stage IIB through histopathology and investigations. He denied any negligence in diagnosing the disease and claims to have discharged his duties responsibly and per standard protocols, with no medical negligence on his part. The oncologist argued that a whole-body PET scan is not mentioned as a mandatory investigation in medical literature at the initial diagnosis stage and is considered an optional investigation globally, aligning with Indian Council of Medical Research (ICMR) guidelines.

He maintained that the MRI of the abdomen and pelvis before treatment did not report lumbar bone metastasis, and no oncology doctor would recommend a PET scan when unnecessary. He asserted that he examined the patient based on the complaint of backache, emphasizing that the incidence of bone metastasis in carcinoma cervix cases is less than 5%. He points out that the patient's complaint regarding the spread of the disease to the brain surfaced three months after discharge from Jupiter Hospital.

The doctor, emphasizing his qualifications and adherence to established techniques and protocols, administered radical radiation therapy with concurrent chemotherapy followed by brachytherapy for cancer cervix stage II B. He argued that cancer inherently can spread despite all precautions, and the mere spread does not imply negligence or deficiencies in services. He concluded that there was no medical negligence, gross negligence, and the complainants are not entitled to compensation. Instead, he suggested that the complaint alleging deficiencies in service should be dismissed with costs.

The complainant submitted an evidence affidavit, supported by various documents, including medical reports from Trupti Hospital and Jupiter Hospital, as well as bills detailing expenses related to the deceased's treatment. Additionally, the complainant presented copies of income tax returns and the legal notice. In response, Jupiter Hospital, submitted an affidavit from Dr. Ankit Thakker, the Executive Director and CEO of Jupiter Hospital. Dr. Bhalavat, Radiation Oncologist, also submitted his affidavit and relied on several documents, including medical papers such as admission history, diabetic charts, medication sheets, and discharge summaries. The oncologist referenced the Consensus documents for the management of Cancer Cervix prepared by the Indian Council of Medical Research (ICMR). Both parties submitted written notes of arguments, and cited clinical practice guidelines in their defense.

After a thorough examination of the evidence, medical papers, and written arguments submitted by both the complainants and opposite parties, and after hearing the advocates, the only point for determination raised by the Commission was whether the complainants have proven that hospital and the oncologist committed medical negligence amounting to deficiency in service and unfair trade practices under the Consumer Protection Act, 1986. The findings indicated that the complainants did not establish such medical negligence.

The complainant's advocate argued that there was gross medical negligence on the part of Jupiter Hospital and the oncologist during the treatment of the patient. The contention included claims that the patient's continuous backache was not taken seriously, and the possibility of cancer spreading to other organs was not considered. The advocate emphasized the alleged negligence in not suggesting a whole body PET CT Scan to check for cancer spread, and the complainants lost their mother due to this negligence.

The advocate further contended that the oncologist, neglected the complaint of backache, did not follow standard protocols, and committed negligence by declaring the patient cancer-free in December 2017. The argument also mentioned the spreading of cancer from the backache to the brain, leading to the patient's death.

The complainant sought to support these claims with various documents, including medical papers and reports. Additionally, the advocate referenced expert opinions, particularly one from Dr. Pathak, a Cancer specialist, although the opinion was considered vague and inconclusive.

In conclusion, the advocate asserted that gross medical negligence by the hospital and oncologist amounted to a deficiency in service under the Consumer Protection Act, 1986.

On the other hand, Dr Shenoy, the advocate representing Jupiter Hospital and Dr. Bhalavat strongly refuted and challenged the complainant's contentions regarding medical negligence. While admitting that the patient was referred to Jupiter Hospital for cervical cancer, Dr Shenoy denied any negligence on the part of the hospital or the oncologist. He argued that standard treatment protocols were followed, as prescribed by the Indian Council of Medical Research (ICMR).

According to Dr Shenoy, the patient was already at an advanced stage (II B) when admitted, and immediate treatment, including chemotherapy and brachytherapy, was administered. He emphasized that the treatment was successful, citing reports indicating no visible residual disease and the patient being cancer-free from the cervix region.

The complainant's main grievances, such as the alleged negligence in addressing backache and not recommending a whole-body PET Scan, were countered by Dr Shenoy. He contended that the patient's late-stage arrival necessitated immediate treatment, making surgery impractical. Dr Shenoy pointed to medical literature and ICMR guidelines, stating that a whole-body PET Scan was optional and not mandatory.

He argued that the complainant failed to provide evidence supporting the necessity of a PET Scan over an MRI. He also highlighted the rapid development of metastasis and defended the decision not to order a PET Scan when the patient complained of backache. He claimed that the patient visited other doctors before coming to Jupiter Hospital, causing a delay in follow-up.

Regarding legal aspects, Dr Shenoy cited the Jacob Mathew case, stating that medical practitioners cannot be held negligent for choosing one procedure over another if it aligns with acceptable medical practices. He asserts that adherence to reasonable medical standards is sufficient, and the mere failure of treatment, even resulting in death, does not constitute negligence or deficiency in service.

During the proceedings, Sakina Daud, the advocate for the complainant, referenced several legal precedents, including the landmark case of Jacob Mathew Vs. State of Punjab, which provides guidelines on medical negligence. She also cited the case of Vinitha Ashok Vs. Lakshmi Hospital and others, where the Supreme Court emphasized that doctors would be liable for negligence if the professional opinion given was not reasonable or responsible. Additionally, Daud relied on the judgment in Rajv Gandhi Cancer Institute and Research Centre and others Vs. Lt. Col (Retd) Zile Singh Dahiya, where medical professionals were found liable for negligence in a cervical cancer case.

However, the Commission noted that these cases do not support the complainant's arguments in the present matter. The facts in the cited cases differ significantly, and the Commission emphasized the distinctions. In the case before them, the evidence presented by Jupiter Hospital and Dr Bhalavat indicated prompt and appropriate investigations, addressing the patient's advanced cancer stage (II B) upon arrival. The Commission underscored that the optional nature of whole body PET Scan was supported by evidence, and the complainant failed to demonstrate its mandatory requirement.

The Commission concluded that the complainant provided no material to establish the necessity of a PET Scan or prove negligence on the part of the Oncologist. The medical papers on record demonstrated adherence to standard protocols and treatments. Given these factors, the Commission found neither Jupiter Hospital nor the Oncologist can be held responsible for medical negligence in this case. It noted;

"...the complainant has not placed on record any material which could go to show that investigation with the help of whole body PET Scan was mandatory and was not optional and further that only whole body PET Scan could have detected spread of cancer in the bone or in the brain. Similarly, the complainant has also not placed on record any positive or unimpeachable material to show that Dr. *** Bhalavat (O.P.No. 2) had not exercised the degree of care which was expected from him as a Radiation Oncologist or that there was any negligence on his part. On the contrary medical papers placed on record go to show that Dr.  Bhalavat had not only carried out investigation as per standard mode laid down by the statutory body namely Indian Council of Medical Research (ICMR) but had also provided Radiation Therapy, Chemotherapy and Brachytherapy to the patient and patient was also discharged from the Jupiter Hospital after which there was a spread of cancer cells in other part of the body leading to death of the patient. But there is no material even to show that the patient reported immediately to Jupiter Hospital on detection of cancer cells in other part of the body. As such we feel that neither Jupiter Hospital(O.P.No.1) nor Dr. Bhalavat(O.P.No. 2) can be blamed for any negligence much less medical negligence."

In the ongoing matter, the complainants had sought an expert opinion from Dr Pathak, a Cancer Specialist, regarding the treatment provided to the patient. Dr Anand Pathak's report, submitted as part of the record, clarified that a PET CT Scan was only an optional investigation, along with other methods such as C.T. Scan, MRI, and ultrasound. Dr Pathak explicitly stated that the PET Scan was not deemed necessary, and he did not opine that it would have improved the patient's survival. Instead, Dr Pathak affirmed that the patient had received appropriate treatment as per guidelines, noting the rapid progression of the disease.

The Commission, after a thorough examination of the evidence, concluded that the complainants failed to establish any lapses in the standard of care exercised by the Oncologist and Jupiter Hospital. There was no evidence supporting the contention that the spread of cancer to other parts of the body, specifically the bone, could have been detected earlier during patient's admission in August 2016. Moreover, the complainants did not establish negligence in the decision not to perform a PET Scan, and thus, no medical negligence or deficiency in service is proven. It observed;

"Sum and substance of the entire discussion is that the complainants have failed to establish that Dr Bhalavat and Jupiter Hospital had failed to exercise the standard care as was expected while giving treatment to patient. The complainants have also failed to establish that the cancer which had spread in the other parts of the body namely bone could have been detected at the initial stage itself when the patient was admitted in Jupiter Hospital in the month of August-2016. The complainant has also failed to establish that both O.P.Nos. 1&2 were negligent in not carrying out the investigation by PET Scan thereby amounting to medical negligence or deficiency in service. As such complainants have failed to establish that there was any deficiency in service as well as unfair trade practice on the part of Jupiter Hospital ( O.P.No. 1) and Dr. Bhalavat (O.P.No. 2) and so we proceed to pass the following order. ..Complaint filed by the complainant Nos. 1 to 3 is hereby dismissed."

To view the original order, click on the link below: