.The Forum in its opening para of reasoning showed its sympathy to the Complainant, who lost his wife in the early days. However, further observed that expression of sympathy would not take place of the proof of fact alleged in the eye of law.
New Delhi: National Consumer Redressal Forum came to the rescue of Senior doctors and well known Hospital in Pune and dismissed the Compliant claiming Rs.50 lacks damages for alleged Medical Negligence, as it was proved that the Doctors followed the standard protocol of treatment.
The judgment yet again underlines the importance of proper informed consent, proper counseling and proper documentation have saved the Doctors. An important judgment that discuss about the limitations of Medical Science especially in case of deadly decease of Cancer.
The facts in nutshell are as under :
1. The Complainant’s wife Smt. Smita, 42 yrs of age, a Banker by profession, was diagnosed with ovarian cancer (CA ovarian) in the year 2004, which was in an advanced stage. the said diagnosis and advised a further course of treatment. She was advised to undergo four chemotherapy sessions followed by Surgery and thereafter three more chemotherapy sessions. It was stated that the treating doctor administered the chemotherapy to the Patient between March 2004 to April 2004. On 21.04.2004, the Patient underwent a Surgery at Ratna Memorial Hospital and responded well and resumed her profession. It was stated that during June- July 2005 the Patient accompanied her husband to Europe and did not have any complaint about her health condition. Thereafter in June 2006 once again she complained of stomach pain and the treating doctor stated that CA-125 count of the patient would be monitored at periodic intervals. In the month of December 2006 it was 100 but by in June 2007, the CA-125 count exceeded to more than01500. She was treated by the Opponent No.1 since beginning.
2. On 03/05/2007, deceased was required to be admitted to the hospital of the Opposite Party No.2 (Sanjeevani Hospital, Pune) for chemotherapy cycles. During this period, she was continued to work in her Bank.
3.It was contended by the Complainant, that the deceased was accustomed to a drug namely – “Carboplatin” whereas, Opposite Party No.1 prescribed “Cisplatin” same been administered thereby, within 48 hours, condition of the patient deteriorated and lastly, she collapsed and died due to multiple organ failure on 07/05/2007.
4. The main allegations of medical negligence may arrayed as under.
a) It was pleaded that the treating doctor and the Hospital and also Opposite Parties No. 3 and 4 did not take proper care and were not vigilant in administering the chemotherapy drug which has potential side effects;
b) not counsel the Patient or her relatives; did not make the right choice of the drug;
C) did not calculate the dosage as per the height, weight and surface area of the Patient;
d) that the treating doctor who is an Oncologist was not physically present during administration of the drug to check the name of the drug,
e) the date of expiry of the said drug, the rate at which was to be administered and also did not monitor the immediate side effects.
f) that giving Cisplat 450mg and Cytogem 1.6 gm in one shot on 03.05.2007 along with other medicines was a lethal dosage; the reasons for increasing the dose of Cisplatin from 100mg as originally prescribed by the treating doctor to 450mg and of Cytogem 100 gm were also not disclosed either to the Patient or to the Complainant;
g)the treating doctor was fully aware of the Patient’s health background and that she had earlier responded well to the Carboplatin drug and did not give any reasons as to why the drug Cisplatin was used instead of Carboplatin;
h) though the Patient was suffering from diarrhea followed by vomiting and loss of hearing which is a side effect of Cisplatin, neither the treating doctor nor the Hospital took due care;
i) that on 05.05.2007 the treating doctor prescribed Fortum and Amikacin which were kidney toxic drugs and therefore the Patient died due to negligence of the Opposite Parties.
5) The Opponents vehemently opposed the Compliant and denied any charges of alleged Medical Negligence.
a. IT was admitted that three chemotherapy cycles were given as neoadjuvant cycles to the Patients from 18.03.2004 to 29.04.2004. AS the Patient has earlier undergone surgery at Ratna Memorial Hospital and therefore four chemotherapy cycles were given from 14.06.2004.
b. As CA-125 has risen almost three times its normal value in December 2006 to 850 in January 2007, it was indicative of fast growing cancer and therefore chemotherapy was advised.
c. It was the Patient who delayed admission in the Hospital till May 2007 by which time the CA-125 was 1647.4.
d. It was only on 03.05.2007 that the Patient was admitted after having met the treating doctor on 30.04.2007. The certificate given saying that she was fit to join duties does not mean that she had no cancer or was not advised treatment.
e. the prescription of injection Cisplatin of 100mg dose was prescribed and not in the dosage of 450mg as per standard medical practices.
f. It was averred that the Doctors were continuously monitoring the patient and proper treatment was being given. However as the Cancer was fast growing and of advanced stage the patient’s body was not responding to the treatment, ultimately she succumbed to death on account of bleeding from all apertures and multi-system organ failure.
1. The National Commission upheld the judgement of State Forum which dismissed the Compliant.
2. After hearing of the Parties and going though the record , the State Forum dismissed the Compliant by holding that there was No Deficiency in service on part of Opponents.
3. The Forum in its opening para of reasoning showed its sympathy to the Complainant, who lost his wife in the early days. However, further observed that expression of sympathy would not take place of the proof of fact alleged in the eye of law.
4. It further observed, unfortunately, medical science has not as yet invented any drug to cure the cancer, whereby number of invented drugs attempt to ensure diminishing of the pain at the last stage of patient either/or claim to extend the life from certain death what medical practitioners say to be the ‘survival period’ of the cancer patient ,which may be five to ten or fifteen years, considering location and nature of cancer being suffered by the patient.
5. The Forum further observed that since beginning, the Opponent Dr. was treating the deceased, who probably, upon considering overall condition of advanced cancer, on the basis of laboratory reports and over all condition of the patient, he appears to have stick-up to the original drug – Carboplatin and instructed it to administer it through saline to the deceased, whether husband of the patient (Complainant) purchased it and given to him or not and this fact was also corroborated from Hospital Record which was relied on by the Complainant also.
6. By turning down the allegation of the Complainant’s council about absence of “informed consent”, the Forum observed that, such contention cannot sustain especially when the patient was suffering from cancer, a known deadly disease, having no medicine available to cure it, as yet and there was no surgery to be performed on the Patient when she was admitted. The affidavit of counselor appointed by the Hospital revealed that the patient herself and her relatives, including the Complainant, were properly counseled by a counselor who explained for necessary consent for going to adopt a treatment of chemotherapy, on the the deceased wife of the Complainant.
7. The Commission relied upon the expert opinions of Tata Memorial Hospital and of Dr Purvsh M. Parikh (MD, DNB, FICP, PhD, ECMO, CPI, MBA) Medical Oncologist & Hematologist Convener- ICON Trust, who concluded in his opinion that treating doctors took exemplary care of this patient and there is no evidence of any form of negligence at all.
8. The Commission further observed that The Hon’ble Supreme Court in a catena of judgements has held that “a doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in a particular art” and in the case in hand, there are two experts’ opinion by Skilled doctors who have certified the treatment given by the Opponent Doctors. .
9. In conclusion the NCDRC observed that the Complainant has failed to prove the allegations of overdose of medicine or giving wrong medicines The 2 expert opinions were also not challenged or proved to be wrong by the Complainant and thus the treating Doctors acted as per standard protocol and there was no negligence on their part.
This is a very important judgment. It’s really unfortunate for the complainant or for any person to lose his beloved better-half. However at the same time we have to accept the bitter truth that the cancer is such a deadly decease that even Medical Science has also not been able to find the cure.
Thanks and Regds
Adv Rohit Erande.
Case Details :
Mr. Atulkumar Upadhye V/s.Dr. Anantbhushan Ranade, Sanjeevan Hospital, Pune and Trustees of Jana-Prabodhini Medical Trust, Pune & ors (F.A. No.811/2015),
Hon. Mr. Justice R.K. Agarwal and Hon. Mrs. M. Shreeshta.
Decided on : 15/11/2018