NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

New Delhi

Complaint Case No. 95 of 1998

Lieutenant Colonel (Retired) K. A. Bhandula & Another Complainants

versus

1. Indraprastha Apollo Hospital

Sarita Vihar, Delhi - Mathura Road

New Delhi – 110 044

Through its Managing Director

2. The Chairman, Indraprastha Apollo Hospital

Sarita Vihar, Delhi - Mathura Road

New Delhi – 110 044 Opposite Parties

3. Dr. B. M. Abrol, Senior Consultant, E. N. T.

Indraprastha Apollo Hospital &

Director, Abrol’s E.N.T. Hospital and Speech, Hearing

and Centre, Saket, New Delhi – 110 017

4. Rajiv Gandhi Cancer Institute & Research Centre

Rohini, New Delhi – 110 085

5. Dr. Balabhai Nanawati Hospital,

Vile Parle, Mumbai – 400 056

BEFORE:

HON’BLE MR. JUSTICE R. C. JAIN, PRESIDING MEMBER

HON’BLE MR. ANUPAM DASGUPTA, MEMBER

For the Complainants Mr. A. K. Verma, Advocate

For OPs 1 and 2 Mr. Lalit Bhasin, Advocate

with Mr. Mr. Ravi Gopal and

Ms Archana Gaur, Advocates

For OP 3 Mr. M. L. Mahajan, Advocate

with Mr. Gaurav Mahajan, Advocate

Dated the 9thJuly 2009

ORDER

ANUPAM DASGUPTA

Lieutenant Colonel (Retired) K. A. Bhandula (then 62 years) and his wife filed this complaint (in

April 1998) on grounds of alleged medical negligence and deficiency in service, mainly against the

opposite parties (OPs) Dr. B. M. Abrol and the Indraprastha Apollo Hospital, New Delhi, through both

its Managing Director and its Chairman, in the treatment of Lt. Col. Bhandula’s nasal cancer during

1996-97. Though the Rajiv Gandhi Cancer Institute and Research Centre (RGCIRC), New Delhi and the

Dr. Balabhai Nanawati Hospital (DBNH), Mumbai were also impleaded as OPs, there was no

allegation of negligence on their part. For convenience, we refer to only Lt. Col. Bhandula as ‘the

complainant’; the Indraprastha Apollo Hospital as OP 1 or ‘the Hospital’; the Chairman of the

Hospital as OP 2; Dr. Abrol as OP 3; RGCIRC as OP 4; and DBNH as OP 5.

2. We heard, at length, Mr. A. K. Verma, learned counsel for the complainants; Mr. Lalit Bhasin,

learned counsel for OPs 1 and 2; and Mr. M. L. Mahajan, learned counsel for OP 3. Both Lt. Col.

Bhandula and Dr. Abrol (OP 3) were also present on most days of hearing. At our direction during the

hearing, Mr. Verma filed copies of medical records of the surgery that the complainant underwent

eventually at OP 5 while Mr. Bhasin filed copies of the medical record of the nasal biopsy carried out

by OP 3 on 20.03.1997 at the Hospital. OP 3, in turn, made a written statement before us regarding

this biopsy procedure. Learned counsel for the parties also submitted their written arguments. While

the parties filed their respective affidavits and some other documents - mainly photocopies of

medical records - by way of evidence, none filed any medical literature in support of their

contentions.

Complainants’ Case

3. The complainant’s case, as made out in the complaint and Mr. Verma’s detailed arguments, was

as under:

(a) In September 1996, the complainant went to the Army Hospital, New Delhi with complaints of

nasal discharge, hard swelling and blockage on the left side of the nose. After ‘paranasal sinus’ (PNS)

x-ray and histopathological examination (HPE) of a biopsy sample of a mass in the nasal fossa, mainly

the latter, the Army Hospital diagnosed him in the following manner, “Unilateral nasal mass (Inv).

HPE reveals undifferentiated CA. Disposal explained to pt. (‘pt. – patient’; supplied) Nonentitled.”

The Army Hospital HPE report recorded a fuller opinion, “Undifferentiated Carcinoma possibly of

transitional cell origin”. Thus, reading the two Army Hospital reports together, it would appear that

at this stage, the diagnosis of the complainant’s disease was undifferentiated carcinoma (CA)

evidenced by a unilateral (left-side) nasal mass (i.e., a tumour), which was possibly of transitional cell

origin.

(b) (i) The complainant then approached OP 3, a senior E.N.T. Consultant at OP 1 and also the

Director of “Abrol’s E.N.T. Hospital and Speech, Hearing and Research Centre”, on 30.09.1996 for

treatment of his nasal carcinoma. OP 3 advised several tests like x-rays, review of the Army Hospital

biopsy slides as well as FNAC (Fine Needle Aspiration Cytology) and MRI scan. According to the

complainant, he underwent all these tests the same evening and went back to OP 3 on 01.10.1996.

(ii) In his prescription of 30.09.1996, OP 3 diagnosed the complainant’s problem as “Ca left nose

with homolateral CLN metastasis & nasopharynx with Pansinusitis T3 N1 M0 (CARCINOMA

NASOPHARYNX with Nasal Extn Pansinusitis with CLN metastasis T3 N1 M0 (No cranial nerve

involvement)”. [Note 1: We may add here that in the context of the present case, the abbreviation

‘CA’ (or ‘Ca’) stands for ‘carcinoma’ and ‘CLN’ for ‘cervical lymph node(s)’. Further, ‘unilateral’,

‘homolateral’ and ‘ipsilateral’ all mean the same thing – i.e., ‘on one side’ (left side of the nose or

nasal cavity, in this case). Finally, the ‘TNM’ definitions [standing respectively for the primary tumour

(T), regional lymph nodes (N) and metastasis (M)] relevant to ‘T3 N1 M0’ above, are based on the

definitions and stage groupings of nasopharyngeal carcinoma developed by the American Joint

Committee on Cancer, vide the website ‘www.cancer.gov’ of the National Cancer Institute, USA].

(c) As advised by OP 3 on 01.10.1996, the complainant underwent radiotherapy at OP 4 during

04.10 – 22.11.1996. The discharge summary of OP 4, however, did not mention the size of the

primary tumour of nasopharynx before commencement of radiotherapy and on its completion. In

the said Discharge Summary, OP 4 advised the complainant to come back on 18.12.1996 for follow

up.

(d) Instead of reporting to OP 4 on the assigned date, the complainant went to OP 3 for

consultation on 31.2.1996. In the medical record of that date, OP 3 recorded certain observations

about the post-radiotherapy status of the complainant’s disease and advised further diagnostic tests

like x-ray (PNS), MRI scan, nasal endoscopy, biopsy of the nasal mass and FNAC of the left lymph

nodes.

(e) The complainant underwent the advised diagnostic tests at OP 4. The MRI report of 06.01.1997

is the first available document in this case, detailing the status of the complainant’s disease. The

report showed the size of the tumour in the left nasal cavity involving the lateral wall of the

nasopharynx, secondary inflammatory changes in the left maxillary and ethmoidal sinuses and

enlargement of the lymph nodes in the submandibular, internal jugular as well as both sides of the

maxillary regions. However, the lateral recess and Eustachian tube openings in the nasopharynx

were normal and there was no evidence of involvement of the deep (parapharyngeal and

temporalis) space, skull base, palate or orbital. In respect of the primary tumour, the report noted

the important impression, “significant reduction in size seen in comparison with previous scan (MRI -

30.09.1996)”. However, this MRI report did not mention the size of the primary tumour noticed in

the MRI of 30.09.1996 (to demonstrate the reduction in the size of the primary tumour). Nor did the

report clarify if, in the MRI of 30.09.1996 too, there was any sign of the secondary inflammatory

changes in the ethmoidal and maxillary sinuses and enlargement of the lymph nodes now observed.

It also appears that the complainant did not report to OP 3 with the results of the diagnostic tests

that he underwent, in accordance with the advice of OP 3 on 31.12.1996, during the first week of

January 1997.

(f) In January 1997, the complainant underwent a second, three-week course of radiotherapy

(brachytherapy), at the advice of the Doctor concerned at OP 4 who, according to the complainant,

also consulted with OP 3 on telephone. However, with this complaint the complainant did not file a

copy of any prescription/medical report of OP 4 advising this further radiotherapy. The complainant

further stated that at the end of this second course of radiotherapy in January 1997, OP 4 advised

him to get certain tests done at the end of February 1997. Once again, the complainant did not file

with this complaint copy of any of the prescriptions/medical records of OP 4 noting the above-

mentioned recommendations.

(g) The documents produced on record with the complaint include copies of four reports, viz., x-ray

chest (PA) (24.02.10907), ultrasonograph of upper abdomen (25.02.1997), MRI scan (27.02.1997)

and whole body bone scintigraphy (27.02.1997).

(h) The MRI scan of 27.02.1997 reported further decrease in the size of the primary

nasopharyngeal tumour in comparison with the immediately preceding scan of 04.01.1997.

However, it noted mucosal changes in the nasopharynx, changes of sinusitis in the left ethmoidal

and maxillary sinuses and continued enlargement of the lymph nodes in both the deep cervical

(superior) and left submandibular regions. The whole body scan confirmed the inflammatory

abnormal pathology in the left ethmoidal and maxillary as well as deep cervical (C 5-7) regions. The

upper abdomen ultrasonograph and the x-ray chest (PA) did not show any noticeable abnormality of

relevance to the cancer. The bone scan report, however, recorded an impression of severe cervical

spondylosis.

(i) The complainant stated that with these test reports, he consulted Dr. S. Hukku (Chief of

Radiation Oncology) at OP 4 who, after perusing the report of the diagnostic tests, advised a further

biopsy to assess the residual cancer, and the need for subsequent surgery if the biopsy report

confirmed residual cancer. The complaint also mentioned that Dr. Hukku discussed the

complainant’s case with OP 3 and advised the complainant to see OP 3. According to the

complainant, he met OP 3 on 13.03.1997.

(j) On 13.03.1997, OP 3 asked the complainants to come back on 17.03.1997. On the latter date,

he informed the complainant that he had scheduled a biopsy of his tumour at OP 1 on 20.03.1997.

OP 3 carried out the biopsy accordingly and the complainant was discharged from OP 1 on

21.03.1997, with the advice that the HPE report of the biopsy would be available after a few days.

OP 3 also advised the complainant to see him at his private clinic for post-biopsy follow-up. The

complainant did so during 21-25.03.1997. It is one of the main grievances of the complainant that

after examining him at his private clinic on 28.03.1997, OP 3 told him that he had seen the HPE

report, that there was nothing to worry and that he needed to be kept under observation for the

next three months. When the complainant was about to leave the clinic, OP 3 handed over to him an

envelope stating that it contained the biopsy HPE report. However, on opening the envelope at his

house, the complainant found that the HPE report of OP 1 stated that the biopsy tissue sample had

not been received in formalin and had autolysed, as a result. In other words, effective HPE of the

biopsy tissues could not be carried out.

(k) The complainant immediately questioned OP 3 on telephone as to why he had told him that he

(OP 3) had examined the biopsy report. To this, OP 3 had no answer and explained defensively that

the error was due to the negligence of the paramedical staff of OP 1 at the operation theatre. It was

the latter’s duty to ensure proper preservation of the biopsy sample before sending it for HPE and

advised the complainant to take up the matter with the Director of Medical Services (DMS) of OP 1.

The complainant wrote about this to the DMS and met him on 31.03.1997. According to the

complainant, the DMS was also apologetic but contended that as the senior consultant in charge of

the procedure, it was, in fact, the responsibility of OP 3 to ensure proper preservation of the biopsy

sample before arranging its dispatch for HPE and that he had issued a circular to that effect to avoid

recurrence in future. However, the DMS offered refund the charges for the biopsy and concessions

in the cost of further treatments.

(l) On 01.04.1997, the complainant again met OP 3 at his clinic and the latter advised him to leave

the MRI scans of September 1996, January 1997 and February 1997 for review and revert to him. On

27.04.1997, OP 3, after examining the complainant recorded on the prescription, “No evidence of

recurrence in the nose.”

(m) After this, the next visit of the complainant to OP 3 was on 08.07.1997, i.e., after a gap of nearly

two-and-a-half months. In his prescription of 08.07.1996, OP 3 advised several x-rays, nasal

endoscopy and “if required – biopsy”. However, following the nasal endoscopy on the complainant

on 10.07.1997, OP 3 also carried out a (the second) biopsy of the nasal tumour on 17.07.1997 and

sent two sets of tissues, viz., the ethmoid and middle turbinates and the undersurface of the inferior

turbinates, for HPE. The HPE report of 24.07.1997, a copy of which the complainant produced with

his complaint, showed “undifferentiated carcinoma” of the “tissues from the ethmoid and middle

turbinates and undersurface of the inferior turbinate.” On that date, OP 3 also advised repeat MRI

scans at OP 4 and second opinion on the (biopsy) slides. In addition, he advised a detailed check up

of the complainant’s vision.

(n) The MRI scan report of 04.08.1997 revealed (i) “progression of the primary lesion as compared

with the study of 27th February, with possible extension into the left ethmoidal sinus” and (ii)

“regression of the regional lymphopathy” and suggested “cytological correlation” in view of the

“dynamic contrast behavior of the left maxillary sinus wall”.

(o) On 05.08.1997, the complainant, along with OP 3, consulted Dr. Sandeep Samant, a consulting

head and neck surgeon at the OP 1 Hospital who advised “craniofacial resection”. [Note 2: The

website www.CancerHelp of the United Kingdom, run by the UK’s leading charity dedicated to

cancer research (www.cancerresearchuk.org), describes craniofacial resection as ‘a very big

operation’, for ‘cancer in the ethmoidal, frontal and sphenoid sinuses or sphenoid sinuses alone’,

that ‘includes removing parts of the base of the skull and the upper parts of the eye socket.]. During

the next joint consultation with OP 3 and Dr. Samant on 07.08.1997, the complainant was advised to

see one Dr. Ravi Bhatia, a consulting neurosurgeon at OP 1. According to the complainant, after

reviewing his case and the reports, Dr. Bhatia did not agree to join the surgical team for the

proposed craniofacial resection of the complainant. This was because he felt that in the

complainant’s case, opening a window through the brain (as in a craniofacial resection) was not

necessary since the procedure might lead to spread of the cancer to the brain. It is not known if Dr.

Bhatia recorded his clinical notes after seeing the complainant because the latter did not produce

any such document. Apparently, the complainant was then advised by OP 3 and/or Dr. Samant to

see another neurosurgeon, one Dr. Jha, at OP 1, which he did. According to the complainant, Dr. Jha

did not give any specific opinion.

(p) In the meanwhile, the complainant underwent some of the eye tests suggested by OP 3, on

reviewing the reports of which OP 3 advised the former to get the remaining tests also done. On

09.08.1997, the complainant did so and showed the reports to OP 3. During further consultation

with OP 3 and Dr. A. Jena (Chief of MRI Division) at OP 4 on 12.08.1997, the complainant underwent

another CT scan. The same evening, OP 3 allegedly told the complainant that in the proposed

surgery, the complainant’s facial bones and the upper jaw (maxilla) along with the teeth would need

to be removed as they were affected by the cancer. However, he would attempt to save his left eye

and that Dr. Bhatia, on OP 3 showing him the latest medical literature, had agreed to join the

surgical team. However, according to the complainant, while they were at OP 4, Dr. Jena warned him

in confidence that only an expert head and neck surgeon should conduct such a major surgery and,

in that context, Dr. Hukku suggested consulting Dr. Ashok Mehta of the Tata Memorial Hospital,

Mumbai for this purpose.

(q) The complainant was thoroughly scared at this stage by the course of surgery indicated by OP 3

and apprehended that he was being treated as a guinea pig by OP 3 and the team of doctors at OP 1.

He, therefore, flew to Mumbai the same night (12.08.1997) and was able to consult Dr. Mehta at OP

5, in the morning of 13.08.1997. Dr. Mehta informed him that the brain need not be opened and he

would induct an E.N.T. surgeon in the operating team. Dr. Mehta also informed the complainant that

he had prior commitments abroad during 15.08 – 02.09.1997 and the surgery would thus need to be

performed either before 15.08 or after 02.09.1997. Because of non-availability of the operation

theatre at OP 5 on 14.08.1997 for the several hours required for the complainant’s surgery, the

complainant consented to his surgery in the afternoon of 13.08.1997 itself. Dr. Mehta accordingly

conducted the surgery (medial left maxillectomy and ethmoidectomy, vide report of MRI scan

referred to at (r) below as well as the discharge summary of OP 5, produced by the complainant later

as per our direction) and advised periodical follow-up visits.

(r) In November 1997, the complainant again noticed discharge of blood and mucous from his

nose and throat. On consultation, Dr. Hukku of OP 4 advised several tests, including MRI scan. The

MRI scan of 27.11.1997 showed up a “solitary ring lesion” in the brain (right putamen region) and

the report observed, “The possibility of a metastatic deposit cannot be ruled out.” The complainant

again went to Mumbai to consult Dr. Mehta at OP 5 who, after further diagnostic test, advised

consultation with Dr. Gokhale at the same hospital, a brain cancer specialist. On review of the

diagnostic reports like all the MRI scans, Dr. Gokhale advised observation and follow-up visit to OP 5

in March 1998.

(s) The complainants’ allegations in the complaint can be summarised thus:

(i) OPs 1 to 3 wasted a lot of time on various diagnostic tests and radiotherapy before the biopsy

of March 1997.

(ii) The tissue sample taken out by OP 3 during the biopsy on 20.03.1997 at OP 1 was not preserved

in formalin, leading to complete waste of the entire procedure. Neither OP 3 nor the staff concerned

of OP 1 ensured proper preservation of the biopsy samples.

(iii) OP 3 hid the fact of this failure from the complainants (while handing over the HPE report of the

failed biopsy) and instead informed that there was nothing to worry though he knew well that the

cancer persisted.

(iv) The OPs continued with prescribing various other tests for four months instead of advising an

immediate second biopsy though the MRI reports of January and February 1997 both pointed to the

continued existence of the cancer detected in September 1996, despite radiotherapy in November

1996 and January 1997.

(v) Though he was fully aware of the above-mentioned position and the failure of the biopsy of

March 1997, OP 3 wrote in the prescription of 27.04.1997 that there was “No evidence of recurrence

in the nose.” This act of OP 3 was with a view to covering up his own negligence and justifying his

line of treatment. Further, even on 08.07.1997, OP 3 recorded on the prescription, “If necessary-

Biopsy.”

(vi) Even after the biopsy of July 1997 had confirmed progression of the cancer, OPs 1 to 3 made

the complainant run from one specialist to another for consultations and follow-up actions in the

intervening period.

(vii) Though OP 3 was aware that he was not competent to undertake the surgery in question

(craniofacial resection), he informed the complainant that he would undertake the said surgery for

which a window through the complainant’s brain would be opened by a neurosurgeon of OP 1 in the

surgical team. He was thus prepared to expose the complainant to serious risks to his life, though he

was not medically trained and competent to do so.

(t) For the alleged acts of medical negligence and deficiency in service, the complainants claimed

compensation of Rs. 75.87 lakh on various counts, along with interest (pendente lite and future) @

18% per annum and costs.

Case of the Opposite Parties

4. In their written version as well as arguments, OPs 1 and 2 mainly contended that during

September 1996–March 1997, the complainant first went to the Army Hospital and was diagnosed

with undifferentiated cancer of the nasal cavity. Then, under the advice of OP 3 at the latter’s

private clinic, he underwent further diagnostic tests at various diagnostic centres, etc., and finally

treatment at OP 4. The complainant came to OP 1 for the first time in March 1997 only for the

biopsy of his nasal tumour to assess the stage of his disease, at the advice of OP 3. Therefore, the

complainant's allegation that OP 1 (or, 2) was in any way responsible for deficiency in any diagnostic

tests or treatment prior to March 1997 was baseless. Further, it was the responsibility of OP 3, as the

senior consulting ENT surgeon at OP 1 who himself performed the biopsy on 20.03.1997, to ensure

that the biopsy tissue sample was properly preserved in formalin before it was sent for HPE.

Therefore, no negligence could be attributed to OPs 1 and 2 for the failure of the said biopsy. In his

arguments, Mr. Bhasin emphasised that the human error of not preserving the biopsy tissue sample

of 20.03.1997 in formalin could not be termed ‘medical negligence’ in view of the settled legal

position on this issue. In any case, OPs 1 and 2 had voluntarily offered refund the cost of that biopsy

to the complainant and cooperate with his further treatment at OP 1. Moreover, the complainant

had failed to establish his case, as he did not submit the evidence of any medical expert or any

authoritative medical literature on the subject, in support of his contentions. Finally, the

compensation sought by the complainants was ex facie excessive and without any basis.

5. OP 3, in turn, contested the allegations on the following grounds:

(a) The complainant went from one specialist to another in the initial phase of his complaints of

bloodstained nasal discharge and swelling inside the upper left part of his nose. It was only at the

Army Hospital that his disease was first diagnosed as undifferentiated carcinoma in the nasal cavity.

Immediately thereafter, OP 3 advised a complete set of diagnostic tests, based on which he firmly

diagnosed the nature and stage of the cancer in the nasopharynx, including its spread to the lymph

nodes in the neck.

(b) The first line of treatment for this type of cancer was radiotherapy, which OP 3 advised. The

complainant underwent the said treatment at OP 4. This clearly led to improvement in the condition

of the complainant, by way of substantial reduction in the size of the primary tumour.

(c) Despite specific and clear directions in the prescriptions to consult OP 3 for regular follow-up,

the complainant did not so and would come to OP 3 only when he felt uncomfortable or his

condition deteriorated. He also underwent a series of further investigations and a second course of

radiotherapy at OP 4, without any direct consultation with OP 3. In fact, after December 1996, the

complainant came for consultation with OP 3 only in mid-March 1997, though the post-

brachytherapy MRI at OP 4 suggested the need for early histopathological investigation of the

residual tumour and the involvement of other proximate organs.

(d) Immediately after the complainant visited OP 3 in March 1997, the latter arranged for nasal

endoscopy and biopsy of the residual tumour at OP 1, where the necessary facilities were available.

OP 3 conducted the nasal endoscopy and the biopsy on 20.03.1997. The biopsy went well but due to

human error on the part of the nursing staff in the operation theatre, the tissue samples were not

appropriately preserved in formalin. This led to autolysis of the sample, rendering the HPE

infructuous. However, at the instance of OP 3, OP 1 agreed to a second biopsy without charges. OP 3

also advised early repeat biopsy. There was, of course no question of OP 3 telling the complainant in

March 1997 not to worry, as alleged, because no doctor of even the rudimentary professional

knowledge would ever say that to a patient of cancer.

(e) In spite of his warning and written advice to get the repeat biopsy done in March 1997, the

complainant came for consultations with OP 3 only on 08.07.1997. This long gap was because the

complainant had informed OP 3 that he had to arrange the marriage of his daughter and was

preoccupied. Therefore, the allegation of the complainant was false that it was OP 3 who had

advised him of an observation period of three months in March 1997. On examination in July 1997,

OP 3 found that “the nasal mass had reappeared and increased in size”, making the complainant feel

increasingly more uneasy because of progressive nasal obstruction and reappearance of

bloodstained nasal discharge. This persuaded the complainant to consent to immediate (second)

biopsy of the nasal mass, which OP 3 carried out on 17.07.1997 at OP 1. The complainant received

the report on 28.07.1997. The HPE report confirmed the continued existence of undifferentiated

carcinoma. The subsequent MRI scan done at OP 4 showed increase in the size of the primary

tumour and extension of the carcinoma to the left ethmoid but regression of lymph node mass.

(f) OP 3 repeatedly informed the complainant that biopsy was only a means of diagnosis of the

disease (cancer) and not its treatment. The surgical treatment, if necessary, could not be undertaken

until the presence of cancer was proved by the biopsy, i.e., whether it was the same disease, either

residual or recurrent, or another. In view of this, OP 3 emphasised every time the need for biopsy

but the complainant was hesitant, probably because subjectively he felt better due to the

intervening treatment of OP 3 that led to opening up of the nasal airways and subsidence of other

symptoms, after radiotherapy and removal of (nasal) debris and (inspissated) discharge.

(g) The suggested craniofacial resection was the recommendation of Dr Samant, a colleague of OP

3 at OP 1. The complainant himself consulted Dr Samant and was not referred to him by OP 3.

However, OP 3 concurred in the surgical procedure recommended by Dr Samant. This surgery was

also concurred in by two neurosurgeons at OP 1. This was because this surgical procedure aimed at

complete and wide exposure of the cancer bearing area and enbloc removal of the diseased area in

the nose and paranasal sinuses, specially the ethmoid, with adequate clear margins, thereby

preventing spillover of the cancer cells or re-emergence of the disease and leaving behind any

residual disease. OP 3 claimed that he had had conducted several such surgeries at the All India

Institute of Medical Sciences and Sir Ganga Ram Hospital since 1972 and was thus fully competent

and experienced.

(h) The complainant did not mention any specific act of deficiency or negligence on the part of OP

3. After his stay at OP 1 in March 1997, the complainant wrote a detailed note to its management

pointing out various operational deficiencies and shortcomings in the hospital procedures. However,

this note did not mention any instance of negligence or deficiency on the part of OP 3. Thus, the

complainant had been unable to prove any medical negligence or deficiency in service on the part of

OP 3 and, therefore, the complaint deserved to be dismissed as frivolous.

Discussion

6. The main points, which emerge from the preceding summary of the pleadings (including written

arguments), evidence-affidavits and the documents produced on record as well as detailed

arguments of the parties before us, can be summarised as under:

(a) The case of medical negligence against OPs 1 and 2 is limited. It pertains only to the biopsy

tissue sample of 20.03.1997 not being duly preserved in formalin, after OP 3 carried out the biopsy

of the nasal tumour of the complainant. It is of little avail to claim that it was a mere “human error”.

If anything, it was a serious lapse, which rendered the entire biopsy procedure infructuous. That this

was so is also clear from the averments of OP 3 who squarely blamed the paramedical staff at the

operation theatre for the lapse and the fact that, having realised the lapse, the management of OPs

1 and 2 offered to refund the cost of the biopsy to the complainant. The averment of OP 3 was also

not seriously contested by OPs 1 and 2, except to feebly contend that it was the responsibility of OP

3 to ensure proper preservation of the biopsy sample before sending it for HPE. Had that been really

so, it would not have been necessary for the management of OP 1 to issue a clarificatory circular

immediately after this incident, making the consultants at the Hospital responsible for this purpose.

Whether such a circular was at all according to accepted medical practice is altogether a different

point. We refrain from commenting on, in the absence of a copy of the circular being produced on

record or of any document(s) on the standard protocol in this behalf, laid down by any responsible

medical collective. It is also to be noted that the charges for the biopsy procedure would be justified

only if the entire procedure were carried out as per the standard medical protocol – it cannot be

argued that the standard protocol would not include proper preservation of the biopsy sample.

However, based on the facts and documents on record, we are inclined to agree with Mr. Bhasin

that the complainant’s allegations of negligence of OPs 1 and 2 in any form of treatment and/or

diagnostic investigations before or after March 1997 are without any basis. In any case, barring the

Hospital support for the two biopsies, there was hardly any “treatment” rendered at any time to the

complainant by OPs 1 and 2.

(b) As regards the allegations against OP 3, in his arguments, Mr. Verma emphasised some specific

lapses from among the long list in the complaint, summarised in paragraph 3 (s) above.

(i) The first was about OP 3 hiding from the complainant, during consultation on 28.03.1997, the

fact of the HPE of the biopsy of 20.03.1997 going awry (due to autolysis of the tissues because of

inappropriate preservation) but making it out to the latter that OP 3 had seen the biopsy report and

found it in order. From the circumstances attending the case and the documents on record, Mr.

Verma’s contention appears to be valid. Had it not been so, OP 3 himself would have taken up this

lapse with the management of OPs 1 and 2 immediately on receipt of the HPE report. Because, it

was he who collected the HPE report from the office of OPs 1 and 2 sometime earlier and handed

the report over to the complainant in the late evening of 28.03.1997 at his private clinic. A

professionally conscientious surgeon, even if practising as a senior consultant at OP 1 (and thus

deriving considerable income from the said engagement), would not let lightly pass a basic lapse like

non-preservation of a biopsy sample in formalin, particularly if it pertained to a patient with a

serious disease like cancer. In his pleadings, he would not let it off as a mere ‘human error’.

Secondly, given the background that the complainant was, after all, a retired senior officer of the

Indian Army, it appears rather improbable that he would make such an untrue statement about the

doctor to whom he had entrusted the treatment of his disease.

(ii) The next serious allegation was about the advice of OP 3 regarding an early repeat biopsy after

that of 20.03.1997 had failed. It was Mr. Verma’s emphatic contention that OP 3 did not firmly

advise an early repeat biopsy after 20.03.1997. He argued that instead OP 3 specifically noted, “No

evidence of recurrence in the nose” in his prescription of 27.04.1997. This point is borne out by the

copy of the said prescription of OP 3 produced on record by the complainant that remained

unrebutted. Secondly, with his written version, OP 3 produced the photocopy of a document,

numbered as Annexure R-3/1 and written in the hand of OP 3 and bearing two dates, viz.,

17.03.1997 and 28.03.1997. This document is recorded on the stationery of “Indraprastha Apollo

Hospitals”, clearly purporting to form part of the medical records of the complainant maintained by

OP 1. In this document, the first set of entries, recorded and signed by OP 3, are of 17.03.1997,

giving directions to the Hospital staff of OP 1 for admission of the complainant for biopsy and pre-

operative management. Below these entries are those of 28.03.1997, again recorded by OP 3 in his

own hand. The later entries read as under:

“Biopsy report: No opinion possible because of autolysis of tissue preserved in saline and not

formalin. Advised repeat biopsy at the earliest. DMS Apollo Hospital is requested to waive off all

charges for repeat biopsy as this human error has occurred due to the OT Nurse S/N Geeta and OT

staff. I have brought this to the notice of sister in charge OT, S/N Geeta and the OT assistant and

other staff. They should be vigilant and cautious.” [Emphasis supplied]

On the other hand, at our direction, Mr. Bhasin produced photocopies of the entire medical record

of OP 1 in respect of the complainant for the period 17.03–21.03.1997. These records include a

page, recorded by OP 3 in his own hand on 17.03.1997. This page, however, does not include any

entry of 28.03.1997. In fact, the photocopy of the document produced by Mr. Bhasin (vide page 4 of

the compilation filed on 10.12.2008) shows that the entries recorded by OP 3 on 17.03.1997 were in

an entirely different (thick-nib) pen. Therefore, we are inclined to agree with Mr. Verma that OP 3

made the entries of 28.03.1997 in the document R-3/1 not on that date but later, perhaps as a

sequel to the legal notice issued on behalf of the complainant in March 1998. Clearly, therefore, the

claim of OP 3 that he advised the complainant to go in for a repeat biopsy as early as in March 1997

is not borne out by the records of the case. There is also nothing to show that OP 3 ever handed over

a copy of the document R-3/1 to the complainant or brought to his notice its contents, primarily his

advice regarding repeat biopsy at the earliest. On the contrary, the medical records of OP 1 in

respect of the complainant for the relevant period would tend to suggest that OP 3, in collaboration

(?) with someone in the office staff of OP 1 (who had access to the relevant types of blank, printed

official stationery of OP 1), resorted to manipulation of a document (purporting to be that of OP 1)

to show that he had advised the complainant to undergo repeat biopsy at the earliest. Finally, as

pointed out by Mr. Verma, even the prescription recorded by OP 3 on as late as 08.07.1997

recorded, inter alia, “If necessary-Biopsy”.

(iii) The allegation that the complainant was lulled into a sense of well-being during May-June 1997

(and delayed the second biopsy done, which led to delay in starting proper treatment while his

cancer progressed) entirely because of the advice of OP 3 recorded in the prescriptions of April 1997

acquires credibility. It is noteworthy that even after the biopsy fiasco of March 1997, the

complainant kept on going back to OP 3. He thus reposed trust in OP 3, including the line of

treatment advised by him from time to time. It is true (as evidenced by the medical records, alleged

by OP 3 and emphasised by his learned counsel) that for the first few months of his treatment under

OP 3, the complainant was not entirely meticulous in adhering to the time schedule of follow-up

visits advised by OP 3. He also went, on his own, to OP 4 during December 1996 – February 1997.

However, the same evidence would also show that after 20.03.1997, he regularly met OP 3 and

acted on his advice regarding follow-up measures, including repeatedly undergoing tests, etc.

Moreover, it is an established fact that his treating surgeon, OP 3, advised in writing, on 27th April

1997 that there was no evidence of recurrence (of the disease) in the nose. Therefore, it would not

be an irresponsible conduct on his part if the complainant took time off during May-June 1997 to

settle some personal matters and for (perhaps thanks-giving?) pilgrimage (a point repeatedly

emphasised by Mr. Mahajan in his arguments as an example of irresponsible conduct of the

complainant).

(iv) As regards the allegation that the surgery suggested in early August 1997, viz., ‘craniofacial

resection’ was ill-advised, we may first notice that this was not the advice of OP 3 but of Dr. Sandeep

Samant, a head and neck surgeon attached to OP 1 as a senior consultant at the relevant time. This

is clear from the photocopy of the medical record of 05.08.1997, written in hand by Dr. Samant and

produced by the complainant – the advice of “craniofacial resection” appeared for the first time in

this prescription. Admittedly, OP 3 concurred in and strongly advocated this surgical approach for

treatment of the complainant when his disease had progressed adversely. Apart from alluding to the

prima facie inadvisability of craniofacial resection in the complainant’s case, Mr. Verma contended

that OP 3 was neither qualified nor experienced enough to conduct the craniofacial surgery in

question. However, in his written submissions, OP 3 vehemently protested against the allegation of

lack of skill and experience.

(v) To appreciate in lay terms the import of a craniofacial resection for treatment of cancer

of the paranasal sinuses, some further discussion is necessary. Before engaging in this discussion, we

observe again that we have had, in this case, the handicap of complete absence of any relevant

medical literature produced by the parties. If we still devote some time to the (following) discussion,

it is with a specific, two-fold purpose: first, to demonstrate that with a little bit of effort it is possible

for the parties (especially their learned counsel) to make it a shade easier for a Consumer Forum to

appreciate the medical aspects of the case in question, which would serve their own interests better

and secondly, to show how necessary it is to cite specialist authority in establishing (or, defending) a

case of medical negligence in the backdrop of the settled law on the subject:

(1) Short extracts form Gray’s Anatomy (39th Edition, published by Elsevier Churchill

Livingstone) describing the “paranasal sinuses” are as follows (vide Section 3, Chapter 32, pp 574-

577):

“Paranasal sinuses are the frontal, ethmoidal, sphenoidal and maxillary sinuses, housed within the

bones of the same name. The ethmoidal sinuses differ from the others in being formed of small

multiple cavities, divisible into anterior, middle and posterior groups. All sinuses open into the

lateral wall of the nasal cavity by small apertures that allow the equilibration of air and movement of

mucous. …. …. ….”

In the context of this case, we omit the frontal sinuses and notice: “Ethmoidal sinuses are small, thin

walled cavities in the ethmoidal labyrinth, completed by the frontal, maxillary, lacrimal, sphenoid

and Palatine bones. They range from 3 large to 18 smaller sinuses on each side, and their openings

into the nasal cavity are also very variable in position. They lie between the upper part of the nasal

cavity and the orbit, separated from the latter by the paper-thin lamina papyracea or orbital plate of

the ethmoid (a poor barrier to infection that may therefore spread into the orbit). … … … …”

As regards the sphenoidal sinuses, the introductory description is, “The sphenoidal sinuses lie

posterior to the upper part of the nasal cavity, within the body of the sphenoid bone. As the

sphenoidal septum often deviates from the midline, the sinuses are often unequal in size. …. ….”

Finally, “The maxillary sinus is the largest of the paranasal sinuses and is situated in the body of the

maxilla. It is pyramidal in shape and its thin walls correspond to the orbital (roof), alveolar (floor),

facial (anterior) and infratemporal (posterior) aspects of the maxilla.”

The following (including next page) diagrams (from the website

a248.e.akamai.net/7/248/430/20080327144037/ww...) elucidate the locations of the paranasal

sinuses adequately.

C:\Documents and Settings\ANUPAM\Desktop\Ethmoid Sinus 1.jpg

C:\Documents and Settings\ANUPAM\Desktop\Ethmoid Sinus 2.jpg

We also notice that “orbit” in this context means the facial socket in which the eyeball rests. The

right hand diagram above shows that the sphenoidal sinuses are the most difficult to access frontally

from the forehead, because of their location deep inside and right under the middle part of the

cranial cavity (formed of eight cranial bones, viz., the frontal, occipital, sphenoid and ethmoid bones

and two pairs each of the parietal and temporal bones).

(2) In the complainant’s case, the last (OP 4) MRI scan report of 04.08.1997 (referred to,

perhaps inadvertently, as “MRI (RGCI, 29.7.97)” in Dr. Samant’s prescription) mentioned the

following impressions: “Progression of the primary lesion as compared with the study of 27th

February 1997, with possible extension into the left ethmoidal sinus. In view of the dynamic contrast

behavior of the left maxillary sinus wall, cytological correlation is suggested to exclude any

extension. Regression in the regional lymphadenopathy.” Thus, even at this late stage, the paranasal

sinus (specifically, nasopharyngeal) cancer of the complainant was, at the worst, limited to the left

ethmoidal and left maxillary sinuses. At no stage right up to this point in time was there any clinical

or diagnostic evidence of involvement of either of the sphenoidal sinuses.

(3) From the material available on the website www.CancerHelp of the UK, referred to above

(paragraph 3(o)) – which we rely upon in the absence of any medical literature produced by the

parties – we notice that a craniofacial resection is one of the three types of surgeries adopted “to

remove paranasal sinus cancer”. The first two are ethmoidectomy (“to remove cancer in the

ethmoid sinus”) and maxillectomy (“to remove cancer in the maxillary sinus”). The said website goes

on to inform:

“Surgery to remove cancer in the ethmoid sinus (ethmoidectomy)

“If you have a small tumour in the ethmoid sinus, your surgeon will cut through the skin at the top of

the nose, next to your upper eyelid, and remove the cancer. This operation is called an external

ethmoidectomy. To get to tumours inside the ethmoid sinuses, the surgeon will need to remove the

bone on the inside of the nose and the tissues surrounding the eyeball (orbit).

“Surgery to remove cancer in the maxillary sinus (maxillectomy)

“If your cancer is in the maxillary sinus, you may have a maxillectomy. This means removing part or

all of your upper jaw bone.

“The maxilla bone forms the upper jaw, the front part of the roof of the mouth, the sidewalls of the

nasal cavity and part of the floor of the eye sockets. It helps shape the tissue around the eyeball

(orbit), the nose and the roof of your mouth (hard palate).

“There are several types of maxillectomies. Which one you have depends on exactly where the

tumour is and how far it has spread into nearby tissue. You may need to have a

· Partial maxillectomy

· Total maxillectomy

· Extended or radical maxillectomy

“A partial maxillectomy means leaving one or more of the bony walls in place. If the tumour is

affecting all of the maxilla, the whole bone is removed. This is a total maxillectomy. If your cancer

has spread into all the walls and also into nearby structures, you will need to have a radical

maxillectomy.

“To perform these operations and get to the cancer your surgeon can do two things

· Cut into the skin along the side of your nose, from the eyebrow or the eyelids down to (or

through) the upper lip

· Make a cut inside the mouth under the upper lip, which means you do not have to have a large

scar on your face”

On craniofacial resection, the website informs:

“Craniofacial Resection

“If you have cancer in the

· Ethmoid, frontal and sphenoid sinuses or

· Sphenoid sinuses alone

you may need to have a craniofacial resection. This is a very big operation and usually involves a

team including one or more of these surgeons

· Ear, nose and throat surgeon (otolaryngologist)

· Face and jaw surgeon (maxillofacial surgeon)

· Brain surgeon (neurosurgeon)

· Plastic surgeon

“It includes removing parts of the base of the skull and the upper parts of the eye sockets. This is

done through a scalp incision over the hairline. The lower part of the operation is similar to a

maxillectomy. You will have to cope with some major changes in how you look. If you have a large

area of tissue removed during your operation, you will need to have the area repaired. This can be

done with

· Skin grafting

· A skin flap

· A more complicated flap that also includes muscle and bone

“There is information about skin grafting and skin flaps in the section on surgery for mouth and

oropharyngeal cancer. Your surgeon will talk it through with you in detail before the operation. Ask

as many questions as you need to. It is very important that you feel supported and understand what

is going to happen.

“Flaps can be done using muscle and bone. This helps to fill the space where the tissue has been

removed. The tissue for the flap can be taken from the hip (called a deep circumflex iliac flap) or the

leg (called a fibular flap). The piece of muscle, skin and bone is completely removed and

repositioned, so this type of flap is called a ‘free tissue flap’. Because there is bone in the flap, it may

be possible later to have a permanent implant fitted that joins to the new bone.

“There is information on how to cope with changes in your appearance in the living with nasal cavity

and paranasal sinus cancer section of CancerHelp UK.”

[Emphasis supplied].

(4) Thus, even the lay information available to all citizens of the UK and, thanks to the information

technology, to the less fortunate citizens of India, shows two important points. First, prima facie, a

craniofacial resection would be called for if the cancer involved the sphenoidal sinuses – from the

description on this website, it would appear to even a layperson that involvement of the sphenoidal

sinus is a pre-requisite for this line of treatment. As we have already noticed, the complainant’s

cancer did not involve any of the two sphenoidal sinuses. Secondly, the craniofacial resection that

the complainant was advised so readily by Dr. Samant and concurred in by OP 3, is a very complex

surgery - by itself and also in terms of the post-surgery repairs to the face and the bone muscles

involved in (or, affected by) the said resection. Particularly noteworthy in this context are some of

the information/warnings in the website: “It includes removing parts of the base of the skull and the

upper parts of the eye sockets…. You will have to cope with some major changes in how you look. If

you have a large area of tissue removed during your operation, you will need to have the area

repaired…. Your surgeon will talk it through with you in detail before the operation. Ask as many

questions as you need to. It is very important that you feel supported and understand what is going

to happen.”

(5) Nowhere in his pleadings and affidavit did OP 3 claim that he explained in adequate detail the

full import of the craniofacial resection that had been advised for the complainant and why Dr.

Samant and he thought it necessary to adopt this rather radical approach. In fact, there is neither a

whisper of grudging admission nor anything to the contrary in response to what the complainant

attributed to OP 3 in this context in his pleadings and affidavit, summarised in paragraph 3 (p) above.

What OP 3 told the complainant and how he “talked it through” with the latter appear to have been

enough to scare the complainant to the extent that he left for Mumbai by the next available flight.

Compare this with the sage advice on the above-mentioned website: “It is very important that you

feel supported and understand what is going to happen.”

(6) On the composition of the surgical team for the craniofacial surgery, OP 3 claimed in his written

submissions, “I concurred with Dr. Samant who also wanted to include Dr. Ravi Bhatia or Dr. Jha of

Neuro Surgery Department.” On the other hand, the complainant averred that on 07.08.1997, Dr.

Samant referred him to Dr. Bhatia and he accordingly met Dr. Bhatia in his office at OP 1. Dr. Bhatia

examined the scans of the complainant, discussed the case with OP 3 at the latter’s office at OP 1 for

about 20 minutes and came out to tell the complainant that he found “sufficient safety margin to

carry out effective surgery without opening the brain for making a window.” The complainant also

stated in the complaint that on 12.08.1997, on their way back from OP 4, OP 3 told him that he, i.e.,

OP 3 “would be removing facial bones damaged by cancer, complete left upper jaw along with teeth

and would make his efforts to save the left eye of the complainant no.1, if possible.” OP 3 did not

rebut any of part of the complainant’s narration of the conversation with Dr. Bhatia or that between

the complainant and OP 3 on 12.08.1997 or, for that matter, the sequence of events. According to

the complainant, OP 3 also added that he had shown the latest US literature on the subject to Dr.

Bhatia and he had agreed to join the team. If OP 3 were to do the above-mentioned part of the

surgery, it would not need medical expertise to ask the question as to what Dr. Samant, the head

and neck specialist surgeon supposedly in the surgical team for the complainant’s surgery would

have done.

(7) Thus, to laypersons, it would appear that there is prima facie ground to agree with the

contention on behalf of the complainant that in his case craniofacial surgery was not the necessary

(or, even the ordinarily preferred) approach. It would further appear that there was lack of clarity

about the composition of the surgical team until the last because OP 3 did not care to clarify the

matter either in his written version or even in his written submissions of October 2008. If OP 3 had

persuaded the two doctors, namely, Dr. Sandeep Samant and Dr. Ravi Bhatia, both senior

consultants at OP 1 and admittedly colleagues of OP 3, to come forward and file even short

affidavits, the matter would have been clear. OP 3 did not make this effort. This lack of effort on his

part on this crucial aspect would thus not lend any support to the claims of OP 3 about either the

advisability of the craniofacial surgery or the composition of the surgical team and its

appropriateness. The undisputed fact that soon after the aforesaid advice of Dr. Samant and OP 3,

Dr. Ashok Mehta actually performed on the complainant, at OP 5, ethmoidectomy and maxillectomy

(both recognised surgical treatment for the type of cancer that the complainant had, as per the

website www.CancerHelp referred to above) would also tend, once again in the eyes of laypersons,

to support the said contentions on behalf of the complainant.

(8) However, to establish medical negligence on the part of OP 3 based on the above-mentioned

facts and circumstances, particularly with regard to the suggested craniofacial resection, something

more would be necessary. This is one of the major aspects of this case that we discuss in the section

below.

The Law on Medical Negligence

7. The law on medical negligence (as a variety of ‘deficiency in service’ under the Consumer

Protection Act, 1986 – hereafter referred to as ‘the Act’) has evolved in India through the catena of

judgments of the Apex Court. As it now stands, the law covers practically all aspects of this complex

profession and its practice in this country. It takes cognisance not only of the development of the

corresponding jurisprudence in the UK, USA and other developed countries but also of the delicate

relationship between the physician and the patient, the ground realities of the available medical

services and medical infrastructure as well as the socio-economic conditions in India. In the limited

context of this case, it is not necessary to summarise all the parameters and bounds that the law lays

down to guide the Courts and the Consumer Fora in dealing with complaints of medical negligence.

Suffice it to draw upon a couple of the more recent judgments that notice, approve of or distinguish

most of those preceding, and also guide us in equitable adjudication of this case.

(a) Thus, in the leading case of Jacob Mathew v State of Punjab and Another [(2005) 6 SCC 1], the

appeal under consideration pertained to criminal medical negligence. On reference by a two-Judge

Bench, a three-Judge Bench headed by the then Chief Justice of India, dealt with a much wider range

of issues and concerns, including civil/tortious (medical) negligence. Though the facts of that case

were different, the general conclusions of the Court are of direct relevance to the case in hand and

the relevant ones are reproduced below:

“48. We sum up our conclusions as under:

(1) Negligence is the breach of a duty caused by omission to do something which a reasonable man

guided by those considerations which ordinarily regulate the conduct of human affairs would do, or

doing something which a prudent and reasonable man would not do. The definition of negligence as

given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P. Singh), referred to hereinabove,

holds good. Negligence becomes actionable on account of injury resulting from the act or omission

amounting to negligence attributable to the person sued. The essential components of negligence

are three: “duty”, “breach” and “resulting damage”.

(2) Negligence in the context of the medical profession necessarily calls for a treatment with a

difference. To infer rashness or negligence on the part of a professional, in particular a doctor,

additional considerations apply. A case of occupational negligence is different from one of

professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of

negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to

the medical profession of that day, he cannot be held liable for negligence merely because a better

alternative course or method of treatment was also available or simply because a more skilled

doctor would not have chosen to follow or resort to that practice or procedure which the accused

followed. When it comes to the failure of taking precautions, what has to be seen is whether those

precautions were taken which the ordinary experience of men has found to be sufficient; a failure to

use special or extraordinary precautions which might have prevented the particular happening

cannot be the standard for judging the alleged negligence. So also, the standard of care, while

assessing the practice as adopted, is judged in the light of knowledge available at the time of the

incident, and not at the date of trial. Similarly, when the charge of negligence arises out of failure to

use some particular equipment, the charge would fail if the equipment was not generally available at

that particular time (that is, the time of the incident) at which it is suggested it should have been

used.

(3) A professional may be held liable for negligence on one of the two findings: either he was not

possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with

reasonable competence in the given case, the skill which he did possess. The standard to be applied

for judging, whether the person charged has been negligent or not, would be that of an ordinary

competent person exercising ordinary skill in that profession. It is not possible for every professional

to possess the highest level of expertise or skills in that branch which he practices. A highly skilled

professional may be possessed of better qualities, but that cannot be made the basis or the yardstick

for judging the performance of the professional proceeded against on indictment of negligence.

(4) The test for determining medical negligence as laid down in Bolam case, WLR at p. 586 holds

good in its applicability in India.

(5) The jurisprudential concept of negligence differs in civil and criminal law. What may be

negligence in civil law may not necessarily be negligence in criminal law.

……………………………………………………………………………………….

(8) Res ipsa loquitur is only a rule of evidence and operates in the domain of civil law, specially in

cases of torts and helps in determining the onus of proof in actions relating to negligence. It cannot

be pressed in service for determining per se the liability for negligence within the domain of criminal

law. Res ipsa loquitur has, if at all, a limited application in trial on a charge of criminal negligence.”

(b) In the case of Savita Garg v Director, National Heart Institute [(2004) 8 SCC 56], the Apex Court

dealt inter alia with the responsibility of a Hospital and its staff (including paramedical staff as well

as physicians whose services are temporarily requisitioned for treatment of patients) in respect of

cases of medical negligence. After an elaborate discussion of the case law, both in England and here,

the Court ruled:

“15 …. “contract of service” and “contract for service”, in both the contingencies, the courts have

taken the view that the hospital is responsible for the acts of their permanent staff as well as staff

whose services are temporarily requisitioned for the treatment of the patients. Therefore, the

distinction, which is sought to be pressed into service so ably by learned counsel cannot absolve the

hospital or the Institute, as it is responsible for the acts of its treating doctors who are on the panel

and whose services are requisitioned from time to time by the hospital, looking to the nature of the

diseases. The hospital or the Institute is responsible and no distinction could be made between the

two classes of persons, i.e., the treating doctor who was on the staff of the hospital and the nursing

staff and the doctors whose services were temporarily taken for treatment of the patients. On both,

the hospital as the controlling authority, is responsible and it cannot take shelter under the plea that

as the treating physician is not impleaded as a party the claim petition should be dismissed.”

“16. …. Therefore, in any case, the hospital is in a better position to disclose what care was taken or

what medicine was administered to the patient. It is the duty of the hospital to satisfy that there was

no lack of care or diligence. The hospitals are institutions; people expect better and efficient service.

If the hospital fails to discharge their duties through their doctors, being employed on job basis or

employed on contract basis, it is the hospital which has to justify and not impleading a particular

doctor will not absolve the hospital of its responsibilities. ....”

We may add that, to date the ruling on this issue holds good.

(c) In the more recent case of Samira Kohli v Dr. Prabha Manchanda and Another [(2008) 2 SCC 1],

another three-Judge Bench of the Apex Court dealt with an appeal against an order of this

Commission. Here too, the facts were quite different from those in the case before us. However,

once again, the Court laid down general guidelines on a crucial issue, viz., the duty of disclosure of

the treating physician/surgeon to the patient, which has a direct bearing on this case. The Court,

inter alia, laid down:

“46. What we are considering in this case is not the duties or obligations of doctors in government

charitable hospitals where treatment is free or on actual cost basis. We are concerned with doctors

in private practice and hospitals and nursing homes run commercially, where the relationship of

doctors and patients are contractual in origin, the service is in consideration of a fee paid by the

patient, where the contract implies that the professional men possessing a minimum degree of

competence would exercise reasonable care in the discharge of their duties while giving advice or

treatment.

“48. Having regard to the conditions obtaining in India, as also the settled and recognised practices

of medical fraternity in India, we are of the view that to nurture the doctor-patient relationship on

the basis of trust, the extent and nature of information required to be given by doctors should

continue to be governed by the Bolam test rather than the “reasonably prudential patient” test

evolved in Canterbury. It is for the doctor to decide, with reference to the condition of the patient,

nature of illness, and the prevailing established practices, how much information regarding risks and

consequences should be given to the patients, and how they should be couched, having the best

interests of the patient. A doctor cannot be held negligent either in regard to diagnosis or treatment

or in disclosing the risks involved in a particular surgical procedure or treatment, if the doctor has

acted with normal care, in accordance with a recognised practice accepted as proper by a

responsible body of medical men skilled in that particular field, even though there may be a body of

opinion that takes a contrary view. Where there is more than one recognised school of established

medical practice, it is not negligence for a doctor to follow any one of those practices, in preference

to the others.

“49. We may now summarise principles relating to consent as follows:

(i) A doctor has to seek and secure the consent of the patient before commencing a “treatment” (the

term “treatment” includes surgery also). The consent so obtained should be real and valid, which

means that the patient should have the capacity and competence to consent; his consent should be

voluntary; and his consent should be on the basis of adequate information concerning the nature of

the treatment procedure, so that he knows what he is consenting to.

(ii) The “adequate information” to be furnished by the doctor (or a member of his team) who treats

the patient, should enable the patient to make a balanced judgment as to whether he should submit

himself to the particular treatment or not. This means that the doctor should disclose (a) nature and

procedure of the treatment and its purpose, benefits and effect; (b) alternatives if any available; (c)

an outline of the substantial risks; and (d) adverse consequences of refusing treatment. But there is

no need to explain remote or theoretical risks involved, which may frighten or confuse a patient and

result in refusal of consent for the necessary treatment. Similarly, there is no need to explain the

remote or theoretical risks of refusal to take treatment which may persuade a patient to undergo a

fanciful or unnecessary treatment. A balance should be achieved between the need for disclosing

necessary and adequate information and at the same time avoid the possibility of the patient being

deterred from agreeing to a necessary treatment or offering to undergo an unnecessary treatment.”

Conclusions

8. With these legal principles and guidelines laid down by the Apex Court in mind, we return to the

allegations of medical negligence (vide paragraph 6 above) in the case on hand:

(a) As regards OPs 1 and 2, we have already noticed their lapse in ensuring proper preservation of

the biopsy tissues of the complainant before sending the sample for HPE on 20.03.1997. This was

not a mere human error, as the foregoing discussion shows. The liability of OPs 1 and 2 in this regard

is there, irrespective the difference between the versions of OPs 1 and 2, on the one hand, and OP 3,

on the other regarding inter se responsibility. The Apex Court’s ruling on this issue is crystal clear

(vide the Savita Garg case, supra).

(b) (1) In respect of OP 3, the allegations of (i) suppressing from the complainant the fact of the

first biopsy of 20.03.1997 having failed due to negligence of the OP 1 staff concerned as well as (ii)

not firmly advising a second biopsy soon thereafter (including the observation of late April 1997 of

OP 3 himself that there was no evidence of recurrence of the disease in the nose and, most

unfortunately, attempting manipulation of a page of the medical record of the complainant

maintained at OP 1 Hospital to make believe that an immediate biopsy had been advised on

28.03.1997) stand squarely established. The unrebutted documents on record speak eloquently and

conclusively in support of these allegations.

(2) It would appear to laypersons that there is prima facie medical ground to lend support to the

allegation that the craniofacial resection advised (by Dr. Samant and wholly concurred in by OP 3) in

early August 1997 for treatment of the complainant’s cancer was not necessary. However, in view of

the rulings of the Apex Court on this issue (vide paragraph 48 of the judgment in the Jacob Mathew

case as well as Samira Kohli case, supra), to bring home this allegation it would be necessary for the

complainant to cite authoritative and preponderant specialist medical opinion that a cancer surgeon

in the relevant specialty, possessing ordinary skills and applying ordinary standards of care in

diagnosis and treatment, would not have suggested this surgery in his case. The complainant has not

been able to do so. Hence, under the law on the subject, this allegation cannot survive.

(3) The related part of this allegation that OP 3 did not apply the due standards of disclosure,

expected of a surgeon of ordinary skills, in informing him fully the necessity, implications and

alternatives is, however, on a different footing. In the Samira Kohli case (supra), the Apex Court

ruled, “The “adequate information” to be furnished by the doctor (or a member of his team) who

treats the patient, should enable the patient to make a balanced judgment as to whether he should

submit himself to the particular treatment or not. This means that the doctor should disclose (a)

nature and procedure of the treatment and its purpose, benefits and effect; (b) alternatives if any

available; (c) an outline of the substantial risks; and (d) adverse consequences of refusing

treatment.” It is clear from the unrebutted narration in the complaint that OP 3 merely informed the

outline of the craniofacial resection procedure that he (and his professed colleague, Dr. Samant)

proposed to perform on the complainant. None of the necessary elements at (a), (b) and (c) above

was disclosed. This part of the allegation of negligence is thus established.

9. In view of the foregoing findings, the complainants would be entitled to compensation for the

physical harassment and mental trauma that the complainants, particularly complainant no.1, had to

suffer because of the medical negligence/deficiency in service on the part of OPs 1, 2 and 3, mainly

the last. It is true that the complainant has not attempted to justify the very large amount he has

claimed. In our view, the ends of justice would be met adequately if (i) OPs 1 and 2 are directed to

together pay to the complainants Rs. 1 lakh as compensation for the negligence on their part and (ii)

OP 3 is directed to pay a lumpsum compensation of Rs. 2 lakh for his negligence.

10. Allowing the complaint partly, we thus order accordingly. The OPs shall make the payments

within four weeks from the date of this order, failing which they will be liable to pay interest on their

respective shares @ 12% per annum from the date of the complaint upto the date of actual

payment. There shall be no order as to costs.

……………………………………

[R. C. JAIN, J]

…………………………………….

[ANUPAM DASGUPTA]