(Delivered on 06/02/2024)

PER SHRI A. Z. KHWAJA, HON’BLE JUDICIAL MEMBER

1.         Complainant Nos. 1 to 3 who are the legal heirs of deceased Smt. Varsha Shende has preferred the present complaint under Section 17 of the Consumer Protection Act, 1986.

2.         Short facts leading to the filing of the present complaint may be stated as under,

            Complainant No.1- Mr. Praful Shende and complainant No. 2- Mr.Kashyap Shende are the sons of deceased Varsha Shende. Complainant No. 3- Mr. Manohar Shende is the husband of Varsha Shende who died on 24/07/2017 at Nagpur on account of  medical negligence  and lack of correct advised  as well as delayed  diagnosis on the part of  O.P. No. 1-  Jupiter Hospital  and O. P. No. 2- Dr. Rajendra Bhalavat, Chief Oncologist, Jupiter Hospital. The complainants  have contended  that the  Jupiter Hospital is a multi-speciality hospital  having  expert doctors  who are  having  expertise in different  branches  of  medicine including the Cancer as well as  Surgery. Complainants were the consumers within the meaning of Section 2(1)(d) of the Consumer Protection Act, 1986.  The O.P.  No. 1- Jupiter Hospital as well as O.P. No. 2-Dr.Rajendra Bhalavat, Chief Oncologist, Jupiter Hospital were the service provider. The complainant Nos. 1&2 have contended that  their mother  Varsha Shende was referred by Dr. Ashutosh Ajgaonkar of Trupti Hospital to Jupiter Hospital  for  undergoing  MRI of abdomen and Pelvis of. Varsha Shende by reference letter  dated 06/08/2016. As per reference letter Varsha Shende  was suffering   from post menopausal bleeding and  suspected CA Cervix.  On 08/08/2016 Dr. Ashutosh Ajgaonkar after having  read the MRI report will  referred the  patient  to  Dr. Naveen Bhambani (Oncologist) who was attached  to Jupiter Hospital  and he diagnosed  the condition of patient  as stage II A level of Cancer  and so referred the patient –Varsha Shende to  Dr. Rajendra Bhalavat, Chief  Radiation Oncologist  and Dr. Chetna Bakshi. The complainants  have contended that on 08/08/2016 the  patient Varsha Shende was examined by Dr. Rajendra Bhalavat, Chief  Oncologist  of Jupiter Hospital  and he diagnosed  the same  to be stage II B of Cancer and  advised a treatment of 25 rounds of Radiotherapy, 5 sessions of Chemotherapy and 4 sessions of Brachytherapy. The complainants have contended that  the  O.P. should have advised  the whole body PET Scan  which was  necessary  for  a  complete logical diagnosis to  find out  if the Cancer cells which were detected in  the earlier medical examination  were also present  in any other parts of the patient’s body apart  from the Cervix. The complainants have  contended that  it was necessary  to advise a Whole Body PET Scan to  rule out  presence of cancer  cells in any other part of  the body but  doctors attached to Jupiter Hospital have failed  to take  this  basic action at inception   and consequently,  the mother  of the  complainant Nos. 1&2 lost her  life due to  utter medical negligence  on the  part of the  Jupiter Hospital. The complainants have contended that the patient Varsha Shende had undergone the sessions of Radiotherapy, Chemotherapy and  Brachytherapy between the period from 08/08/2016 to  20/10/2016 and had also incurred huge  expenses for the  treatment. On 20/10/2016, the last round of Brachytherapy was   administered in Jupiter Hospital as advised by Dr. Bhalavat. Dr Bhalavat  was expected and duty bound to advise  whole body PET CT Scan of the patient to  ascertain whether the  treatment  was successful and whether there were  any other places  which  were  affected  by  the Cancer cells but this was  not done. On 19/12/2016, patient Varsha Shende was examined by Dr. Bhalavat and he gave opinion that no disease could be found in the Cervix area and it was completely free of the Cancerous cells.  He also advised the patient to visit after three months with report of CBC, Chest X-ray, USG abdomen and pelvis, stool routine and microscopy.  On that visit the patient was complaining  of a severe  backache for  which no advise  was tendered by the Jupiter Hospital  or by Dr. Rajendra Bhalavat. The complainants have contended that  subsequently, patient –VarshaShende was required  to be taken for treatment  to Dr. Smruti Ramteke and Dr. Kasushik Chatterjee at  Nagpur and  she was  suffering  from severe  backache and  she was advised  whole body bone scan and  in the report dated 09/03/2017, Dr. Kaushik Chatterjee of  Rainbow Medinova Diagnostic Services, Nagpur reported possibility of Skeletal Metastases.  The patient was thereafter referred on advice to Dr. Anand Pathak (Medical Oncologist) for treatment and he advised  a course of six Chemotherapy cycles. On 18/03/2017 after going through  the report of Bone scan done at Nagpur, Dr. Bhalavat,  for the first time advised  whole body PET CT Scan and on  20/03/2017, the  whole body PET CT Scan was  conducted  by Dr. Nikhil Kamat, Consultant Radiologist. The complainants have contended that after going  through  the report  of PET CT Scan Dr. Bhalavat gave opinion that  the cancer  cells  had spread  in the  bone  and in multiple skeletal  Metastases and this was stage IV of  Cancer from which  the recovery  of the patient was impossible . The complainants have contended that there was serious and gross medical negligence committed by Jupiter Hospital as well as Dr. Rajendra Bhalavat in not advising the whole body PET CT Scan at the initial stage itself. The complainants have contended that  the patient  should have been  advised  to undergo Brain Scan in addition to the whole  body PET Scan to ascertain whether  the cancer cells had also spread  in this area and on 24/06/2017 when the patient  suffered  paralytic attack  she was admitted  in  Neuron Hospital  and  report of  Brain  MRI showed that  the cancer  had also  spread  in the  patient’s brain and ultimately  the patient  who is mother of complainant Nos. 1&2 succumbed  on 24/07/2017.

3.         The complainants have contended  that Jupiter Hospital  as well as Dr. Bhalavat  had  acted  with utmost negligence right from the date of initial  diagnosis  by not giving    the right  advice  at the right stage which could have helped her survive and recover  from the disease.  The complainants have also contended that Jupiter Hospital which was a  reputed  and  renowned  Hospital had charged  heavy and  exorbitant  fees from  the complainants but had failed to save  the life of  patient  Varsha Shende who was the mother  of the complainant Nos. 1&2. The complainants have contended that  due to  ill advise  and wrong treatment  the complainants were  compelled  to incur  expenses  of Rs. 10,00,000/-  apart from having  suffered  mental  as well as  physical  agony and  distress. The complainants have contended that though their mother was cured of cancer in her Pelvic area. The cancer in the spinal code could have been detected earlier but Doctors at Jupiter Hospital had acted in a negligent manner.  Dr. Rajendra Bhalavat who was working as Chief  Radiation  Oncologist and was working  with  Jupiter Hospital  had also  shown utter  negligence  which also  amounted  to deficiency  in service  as defined  under Section 2(1)(g) of the Consumer Protection Act, 1986. The complainants have contended that  they had  suffered  great financial  and personal  loss as well as mental  agony for which they were  entitled to  compensate  of Rs. 50,00,000/-  and same was recoverable from the Jupiter Hospital (O. P. No. 1) and Dr. Rajendra Bhalavat  (O. P. No. 2) and so the present  complaint.

4.         After filing the complaint due notices were issued to the O.P. No.1- Jupiter Hospital as well as O.P.No. 2- Dr. Rajendra Bhalavat and they have appeared and also filed written version thereby strongly contesting the case of the complainants. 

5.         At the outset O.P .No.1 – Jupiter Hospital has taken a preliminary objection  contending that the State Consumer Commission, at Nagpur has no territorial jurisdiction  to entertain the complaint filed by the complainants. The O.P. No.1 has particularly contended  that  Jupiter Hospital (O.P.No. 1) as well as  Dr. Rajendra Bhalavat (O.P.No. 2) were carrying  on business  and profession  at Thane and not at Nagpur. The O.P.No. 1 had contended that  as per section 17(2) of the Consumer Protection Act, 1986  a complaint shall be instituted in a State Commission within  the limits  of  which  the  O.P. actually  and voluntarily resides  or carries on business or has a branch office or  has personally work for gain. As per contention of the O.P. No. 1, Jupiter Hospital was situated at Thane and O. P. No. 2 namely Dr. Rajendra Bhalavat is  appointed as  Radiation  Oncologist  at Jupiter Hospital and  he is also  carrying  on  business  and profession  at Thane  and so  the State Consumer Commission, Bench at Nagpur has no territorial  jurisdiction  to  deal with  or decide the complaint. Further  the O.P.No.1 has contended  that  the  complainant was  also not tenable  as the  complainants  have suppressed  the material  facts. The O.P.No. 1 Jupiter Hospital has contended that it was a tertiary  care hospital  run by dedicated  with main objective  to render effective medical  care  and medical  relief  to all  persons.  The O.P.No. 1- Jupiter Hospital is a 350 bedded  hospital  with  a full-fledged 24 hours  Casualty Department, ICU, ICCU and  all other  facilities and  also has  a Diagnostic Center  having the  latest Pathology facilities, X-ray units, MRI Scan facility, CT Scan equipment.  The Jupiter Hospital catered to all types of high risk patients from all specialties including cancer. The Jupiter Hospital  is  fully  equipped  to manage   any kind  of problem   or  complications  and department  of Radiation  Oncology is equipped with  the state  of the art machines. It also has Super Specialty Centres dealing with  all types of  ailments and diseases.  The O.P.No. 1 has contended that  the patient  Varsha Shende was referred  by Dr. Ajagaonkar  with complaint of blood stained white discharge per vagina (WDPV) and backache and suspected diagnosis of carcinoma cervix stage IIA with MRI (abdomen & pelvis) and was referred to  Dr. Navin Bhambani for further  management.  On 08/08/2016, Dr. Navin Bhambani saw the patient and referred her to Dr. Bhalavat (O.P.No. 2) and Dr. Chetna Bakshi for radical concurrent radio chemotherapy.  On 08/08/2016 the patient was diagnosed to be suffering from Cancer Cervix stage II B. The O.P. No.1 has contended that from 22/08/2016 to 28/10/2016 the patient was treated with radical concurrent radio-chemotherapy as per protocol.  Subsequently, clinical evaluation was done and same revealed no gross visible disease and so was asked to follow up after six weeks.  The patient  had come  for first  follow up  on 19/12/2016 and as  no  significant findings were  observed, the patient  was asked to  see orthopaedic surgeon for backache to evaluate cause  other then  malignancy.  The O.P.No. 1 Jupiter Hospital has denied that the services rendered by Jupiter Hospital or by O.P.No. 2 Dr. Bhalavat were deficient or substandard. .The O.P. No. 1 has contended that  the O.P. No. 1- Jupiter Hospital  had  done whatever was in the best interest of the patient  and had also  given  best  possible  medical  services.  The O.P.No. 1 has denied that whole body PET Scan was mandatory investigation. The O.P. No. 1 has contended that there was no cause of action for filing the complaint as the complainant ought to have been filed on or before 27/08/2018. The complainant  has filed  the  present  complaint  within  an oblique  motive to extract  money  from the  O.P. No. 1- Jupiter  Hospital.  There was no  negligence  and deficiency  in  service  rendered by the Jupiter Hospital  which was  having  most modern oncology unit  managed by the best  medical  and Surgical  oncologists .  The O.P.No. 1 has also contended that  the burden to prove  medical negligence  as well as deficiency  in service  was  on the shoulder of the complainants but the  complainants  have not  discharged the said burden   cast  upon them  by law. The complainants were  also not entitled for monetary compensation as sought.  The  complainants  have also  come with  unclean  hands   and  so the complaint  filed by the complainant Nos. 1 to 3 was devoid of any substance and deserves to be  dismissed with  cost.

6.         O.P. No. 2- Dr. Rajendera Bhalavat who is Chief Oncologist has also resisted the complaint byfiling separate written version on record. O.P. No. 2 has also taken objection to the tenability of the complaint on the ground of lack of territorial jurisdiction as well as other grounds. O.P. No. 2 – Dr. Rajendra Bhalavat had admitted that the patient –Varsha Shende  was referred by  Dr. Ajgaonkar with  complaint  of blood stained white discharge  per vagina (WDPV) and backache suspected  diagnosis of carcinoma cervix stage  II A. The O.P. No. 2 had categorical denied that he had examined the patient in causal or routine manner. The O. P. No. 2 has contended that after being referred the patient Varsha Shende was thoroughly examined both clinically and with necessary investigations as per standard treatment protocols. The O.P. No. 2 has contended that the clinical examination revealed that the disease in the cervical region was extending to parametrium medially. After confirmation with histopathology report and available investigations, the disease was staged as Cancer Cervix FIGO stage IIB. The O.P.No. 2 has contended that there was no negligence in correctly diagnosing the disease.  The O.P. No. 2 has contended that he has discharged his duties in responsible manner as per standard protocols and there was no negligence much less medical negligence on his part.  The O.P.No. 2 has contended that whole body PET scan has nowhere been   mentioned  as a mandatory investigation  at the  initial stage  of diagnosis in medical  literature and same is  part of  optional investigation  all over the  world and same was in accordance  with  guidelines  laid  down by Indian Council   of Medical Research (ICMR). The O.P. No. 2 has contended that MRI of abdomen & Pelvis was done before treatment and same did not report bone metastasis in lumbar region.  No oncology doctor would recommend PET Scan when not needed. The O.P.No. 2 has contended that he had examined the patient on the complaint of backache and incidence of bone metastasis in a case of carcinoma cervix is less than 5%. The O.P. No. 2 has contended that the complaint of the patient relating to spread of disease in  brain was  on June-2017 i.e. three months after discharge from the Jupiter Hospital. The O.P.No. 2  is a highly qualified oncologist  and he had  undertaken  the radical radiation therapy  with  concurrent chemotherapy  followed  by  brachytherapy  for  cancer cervix stage II B. The O.P. No. 2 has contended that  he had treated the patient  of cancer Cervix Stage IIB by established  techniques followed  by radiation  Oncologist  all over the  world and as per standard  protocols  issued  by  ICMR there was no violation  of  treatment  of protocols.  The O.P. No. 2 has contended that   the cancer in the  human body  has an inherent ability  to  spread and in spite  of taking  all  precaution cancer spreads but  it is  not signify  negligence or deficiencies  in the services. For the forgoing reasons the O.P. No. 2  has contended that there was no medical negligence or gross negligence and so complainants were not  entitled  for  any compensation. On the contrary the complaint filed by the complainants alleging deficiency in service deserves to be dismissed with cost.

7.         Complainant thereafter  tendered  his evidence affidavit  and also placed  reliance upon  several  documents which are  filed along with list  of documents.  Complainant  has  relied upon  copies of  medical  reports  from Trupti Hospital, Jupiter Hospital  as well as copies  of  bills  regarding  expenses  incurred for treatment  of  the  deceased. The complainant has also placed reliance upon copy of income tax return and copy of legal notice.  On the other hand, the O.P. No. 1 – Jupiter Hospital has also tendered affidavit  of Dr. Ankit Thakker, Executive Director  and  CEO of Jupiter Hospital, The O.P. No. 2 namely Dr. Rajendra Bhalavat, Radiation Oncologist has also  placed  his affidavit  on record. Further the O.P. No. 2 has also  placed  reliance  upon  several  documents  namely  copies  of medical papers  consisting  of  admission history, diabetic chart, medication   sheet  and discharge  summary. The O.P. No. 2 has also placed on record other medical papers. The O.P. No. 2 has also placed reliance upon copy of Consensus documents for the management of Cancer Cervix prepared by Indian Council of Medical Research (ICMR). Both the complainants as well as O.Ps. have also placed  on record  written notes of  arguments and we have gone through  the same.  The O.P. has also relied upon clinical practice guidelines.

8.         We have carefully gone through the evidence as well as medical papers tendered by the complainants as well as O.P. Nos. 1&2. We have also gone through the written notes of arguments filed by the complainants as well as O.P. Nos. 1&2. We have also heard Sakina Daud, advocate along with Mrs. Gauri Venkataraman, advocate appearing for the complainants. Similarly we have also heard Dr. Shenoy, learned advocate appearing for the O.P. Nos. 1&2.  On the basis of the facts stated above only point that arises  for our determination  is as under, with  our findings recorded against the same and reasons to follow.

9.         At the outset, it is necessary to deal with the preliminary objection taken by the O.P. Nos. 1&2 in their written version. It was argued by Dr. Shenoy, learned advocate appearing for the O.P. Nos. 1&2 that the Bench at Nagpur of State Consumer Commission had no territorial jurisdiction to deal with the complaint of medical negligence as both the O.P. No. 1- Jupiter Hospital as well as O.P. No. 2- Dr. Rajendra Bhalavat were carrying  on business  at Thane and  so  in view of the provisions of  the Section  17(2) of the Consumer Protection Act, 1986, the  State Consumer Commission, Bench at Nagpur had no territorial jurisdiction. On this aspect argument came to be advanced on behalf of the O.P. Nos. 1&2 by Dr. Shenoy as well as by Mrs. Gauri Venkatraman, learned advocate appearing for the complainants and a detailed order came to be passed on 19/09/2019 holding that the Bench at Nagpur had no jurisdiction to deal with the complaint and so the complaint came to be returned  for proper  presentation  before the Bench of State Consumer Commission, at Mumbai.  It appears that  the  complainants challenged  this order dated 19/09/2019 before the Hon’ble High Court, Bench at Nagpur by filing Writ Petition  No. 7664/2019. The Hon’ble High Court thereafter setaside thesaid orderand came to the conclusion that   as the part of the cause of action arose at Nagpur, the Circuit Bench at Nagpur also has jurisdiction. As such we feel that it  is no longer necessary to go into this aspect and it can be safely concluded that the State Consumer Commission at Nagpur has territorial  jurisdiction  to deal with the complaint.

10.       Sakina Daud, learned advocate appearing for the  complainants  has raised  several contentions before us so as to  demonstrate  that there  was gross medical negligence  on the part of Jupiter  Hospital  as well as  Dr. Rajendra Bhalavat while providing  medical  treatment  to the patient  deceased – Varsha Shende.  She has  submitted that  as the  patient  was ill, preliminary tests were  done in the Trupti Hospital  on 06/08/2016 and report  was given  and  after investigation  it was found that there was  clinical diagnosis of  Cervix Cancer II A and findings of  Fungating Growth, Menopausal bleeding and complaint of backache was noted. She has submitted that specific findings of backache was made and recorded at the first stage of diagnosis and MRI of Abdomen and  Pelvis was suggested  by  Dr. Ashutosh Ajgaonkar and same is placed on record.  It appears that thereafter patient Varsha Shende was referred to Jupiter Hospital and MRI of Abdomen and Pelvis was done by the Jupiter Hospital. It is also clear that on 08/08/2016 the patient –.Varsha Shende was examined by Dr. Rajendra Bhalavat,( O.P. No. 2) who diagnosed the  patient  with  Stage  II B of Cancer and advised  a treatment of 25 rounds of Radiotherapy, 5 sessions of Chemotherapy and 4 sessions of Brachytherapy.  Admittedly, the patient had undergone all this treatment as suggested by Dr. Rajendra Bhalavat (O.P.No. 2). It is also clear that the patient underwent the Radiotherapy, Chemotherapy and Brachytherapy sessions during the period between  03/08/2016 till 20/10/2016. There is also no dispute regarding these aspect and also the treatment provided by Jupiter Hospital( O.P.No.1) and also provided by Dr. Rajendra Bhalavat( O.P.No. 2).

11.       It is argued by Sakina Daud, learned advocate appearing for the complainants that the patient –Varsha Shende was complaining of  severe backache and uneasiness from beginning but the same was not  taken seriously by Dr.  Rajendra Bhalavat and he advised to consult an Orthopaedic doctor.  Secondly, it is argued  by Sakina Daud, learned advocate  for the  complainants  that the possibility  of Cancer  spreading to the other  organs  was  not at all considered  by   doctors of Jupiter Hospital  and the casual approach  was evident  which  amounted  to gross negligence. In order to support these contentions, Sakina Daud, learned advocate appearing for the complainants has drawn our attention specifically to the medical papers. The learned advocate has also drawn our attention to the  document dated 06/08/2016 issued  by Trupti Hospital and also the document dated 09/09/2016 which is copy of Discharge Card issued by Jupiter Hospital. Further, the learned advocate has also drawn our attention to the document dated 19/12/2016 at page No. 47 of compilation and 16/03/2017 at page No. 51 as well as report dated 18/04/2017. On the basis of these documents issued by Trupti Hospital as well as Jupiter Hospital it is submitted that the patient Varsha Shende was suffering from continuous and immense backache but this was not taken into consideration. It is argued by the learned advocate that even after knowing that the patient –. Varsha Shende was suffering from Cancer of Cervix stage II B, they in most negligent manner ruled out the possibility  of cancer spreading  to other parts of the body  and without undertaking  any further  tests. Sakina Daud, learned advocate appearing for the complainants submitted before us that the O.P.No.2 had shown gross negligence by not suggesting whole body PET CT Scan so as to check the spread of cancer. In the light of the fact that, the cancer spreading to other body parts is a very common phenomenon. It is vehemently argued by Sakina Daud, learned advocate for the complainants that it was not only necessary but mandatory on the part of O.P.No. 1- Jupiter Hospital 1 as well as O.P.No. 2 – Dr. Rajendra Bhalavat to refer the patient for whole body PET Scan and by not doing the same, the complainants lost the precious life of their mother and equally the O.P. No. 1 and 2 had indulged in gross medical negligence amounting to deficiency in service. It is also contended by the learned advocate for the  complainants that  the O.P. No.2 had not only acted  in violation  of standard protocol  by not  ordering  whole body PET  Scan but had also  committed  negligence by  declaring  the  patient –Varsha Shende as cancer free  in the  month  of December-2017. It is  argued  that  the cancer  had spread  in the Skelton  region  by  month of June- 2017 and patient succumbed in the month of Jully-2017 more particularly  on 24/07/2017.

12.       It is specifically submitted by the learned advocate for the complainants that the O.P.Nos. 1&2 continued to  neglect  the complaint  of backache  right from the   beginning  and  their approach  was extremely  callous and same  ultimately  resulted  in spreading of cancer from  the backache to her brain leading to her death.  Secondly, the negligence as well as deficiency  in not taking  the appropriate  care was also on account of not suggesting  the whole body PET Scan so as to  eliminate the  possibility  of cancer spreading  other  parts  of the body. In order to support this contention, Sakina Daud, learned advocate for the complainants has drawn our attention to various documents namely copies of medical papers and reports of patient –Varsha Shende. Further , the learned advocate for the complainants  has also placed  reliance  upon  several  citations  including  the landmark judgment  in the case of Jacob Mathew  Vs. State of Punjab, reported in 2005 (6) SCC 1 as well as  another judgment in the case of Vinitha Ashok Vs. Lakshmi Hospital and others, reported in  (2001) 8 Supreme Court Cases 731 and other judgments.  But we shall deal with the same subsequently.

13.       During course  of argument Sakina Daud, learned advocate  appearing for the complainants has also submitted that  in the present case  looking to the  allegations relating  to medical negligence there was  necessity of seeking  expert  opinion  and so  report  was also called  from Dr. Anand Pathak, Caner specialist  who has also  filed his expert opinion. The learned advocate for the complainants  has submitted  that  though the opinion  of expert Dr. Anand Pathak was called but the same was vague and inconclusive  as no definite   opinion was  given by  Dr. Anand Pathak  and  so the same  cannot be any of  assistance  to  the case of the complainants.  Finally it is argued on behalf of the complainants that there was gross medical negligence shown by O.P.Nos. 1 and 2 and therefore, the same amounted to deficiency in service under the Consumer Protection Act, 1986.

14.       Dr. Shenoy, learned advocate appearing for Jupiter Hospital (O.P.No. 1) and Dr. Rajendera Bhalavat (O.P.No.2) have strongly rebutted and challenged all the contentions made by the complainants relating to medical negligence on the prat of the O.P. Nos. 1&2. Dr. Shenoy, learned advocate has initially admitted the fact that patient–Varsha Shende was referred to Jupiter Hospital for complaints relating to Cancer of Cervix. Dr. Shenoy, learned advocate  has also fairly  admitted that the Jupiter Hospital  has provided medical  treatment  as prescribed and suggested  by  Dr. Rajendra Bhalavat who was  working with  Jupiter Hospital  and was Radiation  Oncologist  but  Dr. Shenoy, learned advocate  has rebutted this  contention that  there was any  negligence much less  medical negligence  on the part of  either  Jupiter Hospital  or on the part of  Dr. Rajendra Bhalavat. On the contrary  it is submitted  by  Dr. Shenoy, learned advocate   that  Dr. Rajendra Bhalavat as well as Jupiter Hospital  had  followed  and undertaken  standard treatment  protocol  as per guidelines  laid  down by the statutory  body  namely  Indian Council of Medical  Research (ICMR) as well as  standard practices.  Dr. Shenoy, learned advocate  has submitted  that  the patient –Varsha Shende was  in fact  suffering from stage II B  of Cervix Cancer when she was referred to Jupiter Hospital  as well  as  to Dr. Rajendra Bhalavat. It is submitted  that after  the patient was admitted  in  Jupiter Hospital  and  Dr. Rajendra Bhalavat  and other medical staff immediately  attended to  the patient  and not only  extensive  investigation  was conducted  but proper  and required medical  treatment  was also  provided as per the  standard protocol  expected  from Radio  Oncologist. In order to support this contention Dr. Shenoy, learned advocate appearing for the O.P.Nos. 1&2 has drawn our attention to various medical papers as well as medical reports issued by Jupiter Hospital and we will deal with them one by one. It is an admitted fact that on 06/08/2016, patient –Varsha Shende was referred by Dr.  Ajgaonkar for undergoing MRI of abdomen and pelvis. It is also admitted fact that on 08/08/2016 after going through MRI report Dr.  Navin Bhambani diagnosed the condition of patient as stage IIA level of Cancer of Cervix and patient  was referred to  Dr. Rejendra Bhalavat (O.P.No. 2) who was Chief Radiation  Oncologist, at Jupiter Hospital. It is also admitted fact that subsequently, Dr. Rajendra Bhalavat, Chief Oncologist advised a treatment of 25 rounds of Radiotherapy, 5 sessions of Chemotherapy and 4 sessions of Brachytherapy. There is no dispute regarding this medical treatment provided at Jupiter Hospital to the patient- Varsha Shende. As  referred  earlier the  main grievance  of the complainant is that though the  patient  was complaining  of backache  since  beginning  no attention  was paid to the same and no proper  investigation  was conducted. Secondly, it is contended that  Dr. Rajendra Bhalavat did not initially direct whole  body PET Scan to detect  whether the cancer  had spread  in other  parts  of  body including  bone. Dr. Shenoy, learned advocate appearing for the O.P. Nos. 1&2 has vehemently  submitted that  the patient  had  arrived at  Jupiter Hospital at late stage  when  she was already  suffering from  stage IIB  of Cancer of Cervix  and so immediate treatment  was provided by adopting the  technique of Chemotherapy  as well as Brachytherapy  as surgery  was not possible at advanced stage.  Dr. Shenoy, learned advocate appearing for the O.P. Nos. 1&2 has drawn our attention  to the report  of Jupiter Hospital  which is at page No. 8 of the compilation which clearly shows that  the Radiation Therapy as well as Brachytherapy  was applied for the treatment  of the patient.  It is also submitted by Dr. Shenoy, learned advocate appearing for the O.P.Nos.1&2 that as a result of Chemotherapy and Brachytherapy as well as other treatment the hospital was able to curer the patient from Cancer of Cervix. The learned advocate for the O.P. Nos. 1&2 has also drawn our attention to one report of Jupiter Hospital dated 19/12/2016 which is at page No. 47 of compilation. If we go through the same, the same mentioned no visible gross residual disease and the impression is mentioned as loco regionally controlled. Further  Dr.  Rajendra Bhalavat  had himself  advised  follow up  after  three months. Dr.  Shenoy, learned advocate for the O.P.Nos. 1&2 has submitted that the best available treatment was provided by Jupiter Hospital to the patient and the same was as per standard protocol. Dr. Shenoy, learned advocate  has submitted that  though  the patient  was admitted at the stage  of II-B of Cervix Cancer but patient  was completely  cured of cancerous cells  from Cervix region. During the course of argument  Dr. Shenoy, learned advocate has  submitted that  so far as the  disease of cancer is concerned  there is always a lurking  possibility  of spread of cancer through  blood as  well as  lymph nodes  or any other part of the body. Further, Dr. Shenoy, learned advocate has also contended that merely because patient was suffering from backache no direct  inference can be drawn that there was negligence on the part of the O.P. Nos. 1&2 relating to investigation and proper treatment of the patient.  Dr. Shenoy, learned advocate has drawn our attention to the documents to show that the Metastasis developed rapidly as the deceased  was aggressive in nature. Dr. Shenoy, learned advocate has submitted that on 18/03/2017 there were no complaints from the patient suggesting brain metastasis.

15.       Dr. Shenoy, learned advocate for the O.P. Nos. 1&2 has submitted that  the standard treatment protocol was applied for treatment of patient –Varsha Shende as well as for  investigation.  It is submitted that investigation and treatment  has to be carried out by the medical  professional   as per  guidelines  laid  down by the  Indian Council  of Medical Research (ICMR). Dr. Shenoy, learned advocate  has submitted  that  after  clinical examination  of the  patient,  Dr. Rajendra Bhalavat in the best interest  of  the patient  opted  for  MRI which was one of the  Option  as per the  guideline  of the  ICMR. Dr. Shenoy, learned advocate  has rebutted  the contention  of the complainant that  after  clinical examination  of the patient and after  knowing  the  complaint of backache  it was  mandatory  for  the O.P. No. 2  to referre the patient  for  whole body  PET Scan which  alone could have  detected the cause of  illness. Dr. Shenoy, learned advocate  has submitted before us that  whole  body PET Scan was not  at all mandatory  but  was Optional  mode of investigation  along with  other  modes namely  Ultrasonography, CT Scan, MRI and PET-CT Scan. In order to support this contention, Dr. Shenoy, learned advocate has drawn our attention also to medical literature namely Consensus document for the management of cancer cervix issued by Indian Council of Medical Research (ICMR). On the basis of the same,  it is submitted firstly that PET Scan ws only optional  and  that  only because  whole body  PET Scan  was not  conducted  and  instead  MRI was conducted, no inference can be drawn  that there was  negligence  much less medical  negligence  on the part of  Dr. Rajendra Bhalavat (O.P. No. 2). Further it is also submitted that on 18/03/2017 there were no complaints suggestive of   Brain Metastasis and so no MRI was conducted for  Brain Metastasis. We have therefore carefully gone through the medical literature as well as Consensus documents issued by ICMR and we do find much force in this contention. 

16.       It is pertinent  to note that  complainant has also not  placed on  record  any medical  literature  or medical  text to support  the contention  that  it was necessary  to conduct  whole body PET Scan instead  of MRI or that whole body PET Scan  was  not optional  as per  standard medical protocol. So far as the  contention regarding  complaint  made by the patient–Varsha Shende of backache  is concerned, it is submitted on behalf of Dr. Rajendra Bhalavat that  when the  patient  presented with post menopausal  per  vaginal bleeding and no other  clinical  symptom to suggest advanced metastatic disease elsewhere and hence as per established treatment  protocols, PET whole body scan or other  investigation  were not  advised.  Dr. Shenoy, learned advocate for the O.P.Nos. 1&2 has also  submitted that  the patient  had undergone MRI of  abdomen and pelvis done before  treatment  which  did not  report  bone metastasis in lumber region as  reported  on  PET–CT at later date.  Dr. Shenoy, learned advocate has submitted that no cancer specialist would requisition PET Scan when not needed  and thus did not advice the same.  It is also argued  by Dr. Shenoy, learned advocate that though the patient complained of backache, the complainant  visited the  doctor from Nagpur namely Dr. Smruti Ramteke and Dr. Kaushik Chatterjee but they took about  3 months to meet the doctors  in Jupiter Hospital after follow up was done on 19/12/2016.

17.       Coming now to the legal position it is argued by Dr. Shenoy, learned advocate for the O. P. Nos. 1&2 that there was absolutely no violation of the treatment, protocol either by Jupiter Hospital or by Dr. Rajendra Bhalavat, Radiation Oncologist while providing medical treatment to the patient –Varsha Shende.  It is contended that  while providing medical treatment relating  to cancer it is for the treating  doctor to choose  the line of  treatment  he  deems fit for the patient  and the  treating doctor  has to exercise best  discretion. Doctor cannot  be faulted for adopting a particular line of treatment only when the regime adopted by him is palpably wrong. Secondly, it is submitted that law does not expect the highest standard  nor does it expect low standard. The standard of care expected is the standards of any reasonable medical practitioner and so it cannot be said that there was any negligence much less medical negligence at the hands of O.P. Nos. 1&2. On this aspect relating to medical  negligence, Dr. Shenoy, learned advocate  has not only relied upon  landmark judgment  in the case of Jacob Mathew Vs. State of Punjab, reported in 2005 (3) CPR 70 (SC) (cited supra ) but also on other  authorities.  It is needless to mention  that  law  on the  aspect of medical  negligence  has now  been  crystallized  not only by the judgment  in the case of Jacob Mathew Vs. State of Punjab, but also by several  subsequent  decisions delivered  by the Hon’ble National Consumer Commission, as well as  by the Hon’ble Supreme Court of India.  It is now settled that medical practitioner cannot be held negligent merely because he has chosen to follow one procedure and not another. It is also  well settled  that despite  best efforts  the treatment  of  a doctor can fail, leading to death of the patient  but the same  cannot amount to medical negligence or deficiency  in service. The learned advocate for the O.P. Nos. 1 & 2 has heavily relied upon following observations of Hon’ble Apex Court in the case of Jacob Mathew Vs. State of Punjab,

            “so long as  it can be found  that the procedure  which was  in fact  adopted was one which was  acceptable to medical  science as on that date, the medical practitioner  cannot be held  negligent  merely because  he chose to follow  one procedure and not another  and the result was a failure”.

18.       During the course of arguments Sakina Daud , learned advocate for the complainant  has also relied  upon series  of authorties including  the case of Jacob Mathew Vs. State of Punjab, reported in 2005 (3) CPR 70 (SC).  Further  she  has  relied upon  one judgment   of the Hon’ble Supreme Court in the case of  Vinitha Ashok Vs. Lakshmi Hospital and others, reported in  (2001) 8 Supreme Court Cases 731  as well as  judgment  of the Hon’ble National  Consumer commission  in the case of  Rajv Gandhi Cancer Institute and Research Centre and others Vs.  Lt. Col (Retd) Zile Singh Dahiya, reported in  (2014) 2 CPR 475(NC). It is needless to mention that  the judgment  in the case of Jacob Mathew Vs. State of Punjab(cited supra)  is a landmark judgment on the aspect of  medical negligence  wherein  detailed  discussion  as well as guidelines  have been given  relating  to  appreciation  of the case  regarding  medical negligence.  Sakina Daud, learned advocate for the complainant  has submitted that  the O.P.Nos. 1&2 have not  exercised  the standard of care which  was expected  from them and had not carried out investigations  as expected  from them in the serious  case of cancer but  we have already   dealt with  this aspect.  Further, learned advocate  for the complainant  has also relied upon  one judgment  in the  case  of Vinitha Ashok Vs. Lakshmi Hospital and others (cited supra) . In that case  also the Hon’ble Supreme Court was dealing with  the case of cervical cancer. In that case it was observed that  the doctor  will be  liable for negligence in respect of diagnosis  and treatment if it is shown by evidence that  the professional opinion  given  was not  reasonable  or responsible. In that case  it was observed  that the  medical professional  were not liable  for medical negligence. As such  the judgment in the case of Vinitha Ashok Vs. Lakshmi Hospital and others(cited supra) will not  help  the case of the complainants at all.   Further, learned advocate for the complainants has also relied  upon  the judgment   of the Hon’ble National Commission in the case of Rajv Gandhi Cancer Institute and Research Centre and others Vs.  Lt. Col (Retd) Zile Singh Dahiya  (cited supra).  We have  gone through  the said judgment. In that case  the facts were quite similar and patient  was suffering  from cancer of cervix. In that case  the medical professionals  of  Rajv Gandhi Cancer Institute and Research Centre  had failed  to  diagnose the ailment  suffered  by patient. In that case the Hon’ble National Consumer Commission after dealing with  the entire  evidence had reached the conclusion  that  the medical professionals  of Rajv Gandhi Cancer Institute and Research Centre  had not exercised the medical  skills  as expected from them and so the medical  professional  of Rajv Gandhi Cancer Institute and Research Centre  were liable  for medical negligence. But  in the  present  case  before us the facts are  quite different  and the O.P.Nos. 1&2 have led evidence on record to show that they had carried out all investigations  in   prompt  manner without  any delay but the patient  had come to Jupiter Hospital at late stage  when she was suffering from stage II B of Cancer.  Secondly,  the O.P.Nos. 1&2 have also  led evidence to show that  the whole body PET Scan was only an Optional  mode of  investigation  and not mandatory.  As such  we are of the view that   both  the above  said judgments   in  the case of Vinitha Ashok Vs. Lakshmi Hospital and others as well as Rajv Gandhi Cancer Institute and Research Centre and others Vs.  Lt. Col (Retd) Zile Singh Dahiya   will not go to help the case of the complainants.

19.       As discussed earlier  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. Rajendra 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. Rajendra 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. Rajendra Bhalavat(O.P.No. 2) can be  blamed  for any negligence much less medical  negligence.

20.       Before proceeding  further  it would  be relevant  also to mention  that in the present matter an  application was also moved by the complainants  themselves  for seeking an expert opinion from medical  expert in the field  of Cancer and so Dr. Anand Pathak, Cancer  Specialist  came to be appointed as an expert and report  was also called from Dr. Anand Pathak after sending  all the medical papers  relating to the patient –Varsha Shende.  Accordingly, Dr. Anand Pathak from Cancer Care Hospital has also submitted  an elaborate  report  which is also  part of the record.  If we carefully  go through  the  report of Dr. Anand Pathak, he was also  asked  to give  opinion  whether  PET Scan of patient- Varsha Shende  would have improve  her survival  and Dr. Anand Pathak has also given categorical  opinion  that PET CT Scan was only an  optional investigation  along with  C.T. Scan, MRI and Ultra sonograpy. Dr. Anand Pathak has also not given categorical opinion that the PET Scan was necessary or would have improved survival of patient. On the contrary Dr. Anand Pathak has given conclusive opinion that the patient –Varsha Shende had received appropriate treatment as per the guidelines. Dr. Anand Pathak has also observed that there was rapid progression of deceased.  From the report of Dr. Anand Pathak there is nothing to support the case of the complainant that the PET Scan would have held in the survival  of the patient or was mandatory or better mode of investigation.

21.       Sum and substance of the entire  discussion  is that the complainants  have failed  to establish  that  Dr. Rajendra 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–Varsha Shende 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. Rajendra Bhalavat (O.P.No. 2) and so  we proceed to pass the following order.

ORDER

i.          Complaint filed  by the complainant Nos. 1 to 3 is hereby  dismissed.

ii.          Both parties shall bear  their  own cost.

iii.         Copy of order be furnished to both the parties, free of cost.