1- Gurvinder Singh aged 11 years (Son);

2- Ajinder Kaur aged 8 years (Daughter) of Smt. Baljit Kaur w/o Sh. Jawand Singh through their maternal grandmother Smt. Harpal Kaur, next friend and guardian.

3- Smt. Harpal Kaur w/o Sh. Gurcharan Singh;

All residents of village Ghudani Khurd, Tehsil and District Ludhiana.



….Complainants.

Versus



1- Dr. Kuldeepak S. Kular Prop. Kular Hospital;

2- Kular Hospital through Dr. Kuldeepak S. Kular;

Both r/o N.H.1, Bija, Ludhiana.

3- United India Insurance Company Limited, near Natraj Cinema, Khanna, District Ludhiana.

….Opposite parties.

ORDER


1- Complainants claiming themselves to be legal heirs of Smt. Baljeet Kaur, have instituted the present complaint under section 12 of the Consumer Protection Act, 1986, alleging death of Smt. Baljeet Kaur, due to negligence of opposite party no.1, operating hospital in the name and style of opposite party no.2.


2- Case of the complainants is that Smt. Baljeet Kaur felt pain in lower abdomen and took medical advice from opposite parties no.1 & 2. On 12.12.2002, was admitted in the nursing home of opposite party and discharged on 12.1.2003. She was charged Rs.15000/- for services. While remained admitted in hospital of opposite party, no proper diagnose was done, no proper treatement given. She was diagnosed disease of Carcinoma of Rectum. But no treatment of that disease, was provided. Despite operation, she still had pain and was not provided post operative treatement of CCT or RT i.e. Chemotherapy, as required to be given, to save her life. On account of such medical negligence by opposite party in the treatment, her disease prolonged, causing risk to her life. Due to delay, the infection spread to the whole vagina and had multiple Polyps Rectal Region. Consequently, was shifted to Mohan Dai Oswal Cancer Treatment & Research Foundation, Ludhiana on 9.2.2004 and died on 17.2.2004. The death occurred due to cardio pulmonary arrest, due to Carcinoma Rectum with hepatic metastasis. This happened on account of negligence of opposite party. Hence, claimed compensation of Rs.7 lacs from the opposite party.



3- Opposite parties no.1 & 2 in reply, pleaded that Smt. Baljeet Kaur had consulted doctors of Mohan Dai Oswal Cancer Hospital, Ludhiana, on 3.12.2002, where various tests were prescribed and thereafter, came to them on 6.12.2002, with complaint of bleeding per rectum since 7 years. It had increased since 2-3 months. For such ailment, was taking desi medicine from some baba. She had got done colonoscopy from doctor of PGI on 8.12.2002, which showed carcinoma rectum with polyposis in the rectum. Proper treatment, as per practice and norms, was provided to Baljeet Kaur. There was no negligence on their part. Complaint lacks of material particulars qua allegations of negligence. It is not stated what ought to have been done and was not done to her. The complaint is filed by complainant no.3, with intention to harass them, so deserves dismissal. Complainants no.1 & 2, being minors, can also file complaint through his father, their natural guardian and mother of the deceased, complainant no.3 is not competent to file the complaint, being not first class heir to the deceased. It is averred that Baljeet Kaur got admitted in their hospital on 12.12.2002 and discharged on 12.1.2003. She was suffering from carcinoma rectum. But denied that no treatment of carcinoma rectum was provided. Also denied that instead of operation, she had pain. Proper post operative treatment was provided. When carcinoma rectum was diagnosed, it was required to determine its stage, in order to assess prognosis. The patient was suffering from stage one of carcinoma of rectum. In stage one, primary tumor is classified T-1 and T2. As opposite party was not qualified to give chemotherapy, so patient was referred to Mohan Dai Oswal Cancer Hospital, Ludhiana. Hence, no blame can be fastened on the opposite party. But the patient despite reference, went to that hospital, after 25 days of reference. Survival rate of patient undergoing curative resection is about 55%.Complaint being baseless, deserves dismissal.


4- Opposite party no.3, insurance company of opposite parties no.1 & 2, have also disputed and denied allegations of the complainant.


5- Parties in support of their pleadings, led evidence by way of affidavit and documents. We have heard ld. counsel for parties and perused the record placed on the file carefully.


6- We have to decide case of medical negligence of opposite parties no.1 & 2, as claimed in their pleadings by the complainants. It is alleged in Para no.5 of the complaint that no proper diagnosis was done by opposite party and provided no proper treatment. Opposite party diagnosed the disease as carcinoma of rectum, for which no treatment was given. Despite operation, she still had pain and was not provided post operative treatment i.e. CCT or RT (Chemotherapy), as require to be given, to save her life. Non providing of such treatment caused prolong disease and due to delay, the infection spread to her whole vagina from rectal region. It was due to spreading of the disease that she subsequently, died.



7- All these allegations stand controverted and denied by opposite party. It is argued on their behalf that carcinoma of rectum of Baljeet Kaur was of first stage and at such stage of cancerous growth, treatment of chemotherapy, is not at all, provided or given. Be it stated that after getting treatment from opposite party hospital, between 12.12.2002 to 12.1.2003, on which date, was discharged from opposite party hospital, Smt. Baljeet Kaur subsequently, took treatment for the same disease from Mohan Dai Oswal Cancer Hospital, Ludhiana. Ex.C6 is the report dated 27.1.2004 of that hospital. Mentioned therein that since one year, was having bleeding per rectum for which, was treated in opposite party hospital and diagnosed as carcinoma of rectum. She did not received post operative CCT or RT. Remained symptom free till November, 2003 and felt pain in perineim since one and a half months.


8- In the hospital of opposite party, Smt. Baljeet Kaur, as OPD patient, consulted opposite party on 3.11.2003, who vide prescription slip Ex.C1, prescribed certain medicines and again vide prescription Ex.C2 dated 8.12.2003. Ex.RW1 is the complete record of treatment of Smt. Baljeet Kaur in the opposite party hospital. In Ex.RW1/1, history recorded is, bleeding per rectum on/off by 7 years and excessive bleeding since 2-3 months, was taking desi medicines from a baba. She was operated and thereafter, discharged from the hospital on 12.1.2003. Mentioned that was discharged in satisfactory condition. Before admission in the opposite party hospital, had undergone CT scan of abdomen. The findings were that having 20 x 20mm heterogeneous density involving the rectum. After examination, opposite party, vide report Ex.RW1/26 dated 8.12.2002, found Smt. Baljeet Kaur suffering from carcinoma of rectum with polyposis. But that disease of rectum had not affected vaginal wall, as per histopathology report Ex.CRW1/27 dated 25.12.2002. Histopathology report Ex.RW1/28 dated 25.12.2002 pertaining to rectum, showed Adenocarcinoma of rectum invasion upto muscularis external. Vide histopathology report Ex.RW1/29, Adenocarcinoma rectum was found extending upto muscularis external. Serosat layer was free from tumor invasion.


9- It is in aforesaid circumstances, to be seen whether cancerous growth of the rectum of Smt. Baljeet Kaur re-occurred, was due to negligence of opposite party, who failed to provide chemotherapy treatment to her. For such purpose, we shall have to refer ourselves to history given by the patient in January, 2004, in Mohan Dai Oswal Cancer Hospital, Ludhiana, where she got admitted for treatment after bleeding per rectum. She had given history that remained symptom free till November, 2003. So, it means after discharge from opposite party hospital on 12.1.2003, till November, 2003, remained symptom free from the disease. That complete record of treatment of Baljeet Kaur in Mohan Dai Oswal Cancer Hospital, Ludhiana, is Ex.C12.


10- In is in such scenario, question is whether cancerous growth of rectum was of first stage or second stage. Because, medical literature shows that no chemotherapy treatment is provided to a cancer patient, having cancer of first stage. In coming to such conclusion, we are fortified from literature, copy of which is Ex.RW2, “Current Surgical Diagnosis & Treatment”, by Lawrence W. Way Gerard M. Doherty. Ld. Authors in their book (IInd Edition), have mentioned at page no.723 under head “Adjuvant Therapy”, that patient with stage one lesions, do not benefit from Adjuvant Therapy. Stage II and III rectal cancer patients have improved local control and survival with combined post operative chemotherapy and radiation therapy. So, it is cleat that chemotherapy or radiation therapy is never provided to cancer patient of first stage. Also mentioned by the ld. Authors that survival rate of patient undergoing curative resection is about 55% and over all survival rate is about 35%. Surgical treatment is claimed better for cancer of the colon than for cancer of the rectum and rectal cancer below pelvic peritoneal reflection has a worse progress than cancer higher in the rectum.


11- At page no.724 of the book, stage grouping of the cancerous growth chart is prepared. For stage-I, mentioned tumor invade muscularis propria (T2). At stage-I of the cancer, no regional lymph node metastasis (NO) noticed. Also no distant metastasis (MO) noticed.


12- Same aspect of stage of cancer has been jotted down in Fourteenth Edition Text Book of Surgery by W.B. Saunders. Ld. Authors have mentioned that carcinoma of the rectum is a major health problem and the overall survival after treatment, has not improved in the past 40 years. Further, it is mentioned by the Ld. Authors that most tumor re-occur in the first two years, following curative resection. The recurring disease most often appears in the form of hepatic metastasis or local recurrence.


13- In Book titled as Cancer Treatment(IVth Edition), by Charles M. Haskell, M.D., FACP, copy of which is Ex.RW4, it is mentioned by the Ld. Author that patient with stage-II and stage-III, colorectal carcinoma reoccur despite removal of all grossly apparent disease.


14- It is pertinent to note that in Book “Current Surgical” (Ex.RW2), at page no.725, ld. Author has mentioned that all cancer rectum of stage-I, do not benefit as per adjuvant therapy. Stage-II & III rectal cancer patients have improved with such therapy. Cancerous growth of Smt. Baljeet Kaur was also first stage and medical literature does not prescribe treating with chemotherapy such patient. As they have never benefited with such treatment. Therefore, if no such treatment of chemotherapy was given by opposite party to patient Baljeet Kaur, by resorting to CCT or RT, opposite party can not be termed negligent in treating her. Rather appears that after operation by opposite party, the patient was cured at that time and subsequently, after about an year, developed cancerous growth again, for which, had to take treatment from Mohan Dai Oswal Cancer Hospital, Ludhiana. Medical literature suggests that such recurrence of cancerous growth can re-occur within two years of treatment. If it reoccurred after operation by opposite party, when Baljeet Kaur took treatment in Mohan Dai Oswal Cancer Hospital, Ludhiana, opposite party can not be blamed for such reoccurrence of cancerous growth. We can not, in these circumstances, conclude that opposite party delayed treatment, due to which infection spread. Because, the cancerous growth on her, was at first stage and at that stage, no chemotherapy treatment was advisable under medical literature.


15- Next allegations of the complaint that due to not providing chemotherapy, diseases spread from rectum to vagina, can not be accepted, as there is no evidence qua it. Vagina is a different part of the body from the rectum. Complainant has not led any evidence that cancerous growth of vagina had anything to do with cancerous growth of rectum.


16- In such circumstances, we feel that opposite party doctor did their best what was possible under medical science, to treat Smt. Baljeet Kaur. It was for the complainant, to prove negligence by examining expert evidence, challenging the procedure adopted by opposite party doctor. On this ratio, we refer ourselves to a case reported as Ms Rohini Devi Vs H.S. Chudavat & Anr. 2002(1) CLT-173(NC).


17- Question of medical negligence has also been dealt by the Hon’ble Supreme Court in the latest authority reported as Martin F. D’Souza Vs. Mohd. Ishfaq 1 (2009) CPJ 32 (Supreme Court). Hon’ble Apex court in that case has led general principles of medical negligence. In the words of their Lordships “A medical practitioner is not liable to be held negligent simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another. He would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field. For instance, he would be liable if he leaves a surgical gauze inside the patient after an operation vide Achutrao Haribhau Khodwa & Others Vs, State of Maharashtra & Others, AIR 1996 SC 2377, or operates on the wrong part of the body, and he would be also criminally liable if he operates on someone for removing an organ for illegitimate trade.”


18- In another case titled as State of Punjab Vs. Shiv Ram & Ors. 2005 (3) Apex Criminal 268 (Supreme Court), their Lordships have held that “A professional may be held liable for negligence on one of the two findings: (i) either he was not possessed of the requisite skill which he professed to have possessed, (2) or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. Further their Lordships concluded that unless negligence is established, primary liability can not be fastened on the medical practitioner.


19- Best treatment, as per best prevalent medical practice, was provided by opposite party no.2 to Smt. Baljeet Kaur. But unfortunately, despite successful operation, cancerous growth again developed, for which opposite party can not be blamed. Hence, complainant has failed to prove that death of Smt. Baljeet Kaur occurred, due to negligent treatment by opposite party no.2. Therefore, we find no merits in the complaint and the same is dismissed.