A Claim of Rs.99,99,000/- rejected and held "The pain of the Claimant that by itself cannot be a cause for awarding damages for his sufferings". : Adv. ROHiT ERANDE. ©

A Claim of Rs.99,99,000/- The pain of the Claimant that by itself cannot be a cause for awarding damages for his sufferings.

It is known that after cancer treatment by chemo/radiotherapy, due to immunosuppression, the patient may develop several infections even TB also.

Adv. ROHiT ERANDE. ©

Case Details : 

SGT CHAMAN LAL & ANR.UTTAR PRADESH U.P. V/s. UNION OF INDIA & 3 ORS, 

BEFORE:  

 HON'BLE MR. JUSTICE R.K. AGRAWAL,PRESIDENT

  HON'BLE DR. S.M. KANTIKAR,MEMBER

Judgment Link :

http://cms.nic.in/ncdrcusersWeb/GetJudgement.do?method=GetJudgement&caseidin=0%2F0%2FFA%2F48%2F2014&dtofhearing=2022-06-23

Brief facts: The Case goes back to 2001 !

1 The appellant / Complainant Mr. Chaman Lal joined the Indian Air Force as an airman in Clerk General Duties (CGD) trade on 12.10.1987. He was promoted from time to time and became Sergeant in 1998 and according to him, he has unblemished service record of 15 years. 

2 But, due to health issues, he was reported sick several times at the Air Force Station, New Delhi. In March, 2001, he had symptoms of pain (off & on) in the upper end of Rt. Tibia. He was treated by the Air Force doctors and specialists of Base Hospital Delhi Cantt., but got temporary relief by painkillers. 

3 The Appellant got MRI Scan for his right leg at Max Medical Centre at his own expense  and it revealed some abnormality with right tibia bone as sign of malignancy in the right knee. He was, thereafter, on 31.08.2001, admitted in the Army Hospital Research and Referral Delhi Cantt. (AHRR), Delhi Cantt¬10. The CECT chest revealed 3 x 3x 20 mm opacity (nodule) in right lung lower lobe (RLL). 

Allegations of the Complainant : Claimed Rs.99,99,000/- as compensation with award pendite lite and future interest @ 24 %

a. It was alleged by the Appellant, who argued the matter in person, that the Opposite Parties have not done biopsy/Fine Needle Aspiration Cytology (hereinafter called as ‘FNAC’) of lung nodule to confirm Tuberculosis. Also, other tests like PCR, Mantoux, Pus the Culture AFB, Bronchoscopy or CT guided FNAC etc. were not done.  He was detained in Hospital for 34 days without any treatment. 

b. He vehemently submitted that during his treatment, glaring errors and omissions were made by the treating doctors at AHRR. The principle of res ipsa loquitor is squarely applicable in the instant case.  

c. The Respondents wrongly diagnosed NHL and kept him under wrong treatment for more than six months (From Mar -Sep 2001). Secondly, after 6 cycles of therapies [Chemo-4/radio-2], the Knee Replacement surgery was performed without carrying out prior investigations like Positron Emission Tomography (PET) scan, Fine Needle Aspiration Cytology (FNAC) or a true cut biopsy. The entire resected specimen HPE was reported as no evidence of cancer (NHL). 

d. The Appellant was only 32 years old and at that age, knee replacement was contraindicated when other options like fusion of fibula plus Arthrodesis etc. available. Though there was no cancer, unnecessary excessive doses of the Chemo & Radio radiotherapies were given.  

e. He further argued that the Artificial Knee with Prosthesis was defective therefore, his Rt. leg developed signs of cellulitis and it got infected. Later on, it was diagnosed to be Tuberculosis (TB) instead of NHL (Cancer). Therefore, due to negligence of Respondents, he became crippled for life (on crutches) and thus only possible treatment for him remained was above knee amputation of the leg. He further submitted that more than 17 years, he is under such pathetic condition. He further argued that his promotion had been denied despite his legal fight up to Hon'ble Supreme Court. In support of his arguments, he filed relevant medical texts from the text book of Harrison’s Principles of Internal Medicine and the Short Text Book of Surgery by Love and Bailey.

Defence :

It was contended by the opponents that the treatment given to the Appellant by the team of doctors as per standard protocol. There was no negligence or deficiency on their part. He brought our attention to the HPR reports, the CT and other radiological findings on NHL and its treatment.  

Being aggrieved due to the gross negligence of the Opposite Parties, the Appellant filed Consumer Complaint before the State Commission, Delhi. Simultaneously, he filed Writ Petitions before the Hon’ble High Court of Delhi for his promotions and service matters. The Opposite Parties / Respondents stoutly refuted the allegations of medical negligence and any deficiency in service from them during treatment. The Respondents contended that the Appellant was unsuccessful before the Hon’ble High Court. The State Commission dismissed the Complaint being devoid of merits and hence this Appeal.

Held by NCDRC :

1. The grouse of Appellant/ Complainant is that due to negligence of Respondents, he became handicapped. Though, he was granted extension of service period but he was denied promotion to the next higher rank of Junior Warrant Officer (JWO) with effect from 01.07.2007, whereas his junior counterparts have already been promoted w.e.f. same date. It is pertinent to note that on 25.07.2017, the Hon’ble Supreme Court in the Civil Appeal No. 8834 of 2015, filed by the Appellant herein, has already decided the issue of his promotion. It was held as below:

“The   appellant,   therefore,   after   exchanging correspondence   with   the   department,   filed   a   writ   petition before   the   Delhi   High   Court   bearing   Writ   Petition No.3712/2003, praying for an enquiry against the concerned doctors, to retain him in service and to grant him promotion as   usual   or   to   compensate   him   for   causing   permanent disability   attributable at  par   with   battle   causality.   That petition was disposed of with liberty to the appellant to make representation to the authorities and with a direction to the authorities to consider the same expeditiously. Pursuant to such representation, the appellant was granted extension of service of six years up to 31st October 2013 and again for another six years till 31st October 2019, as a result of which the appellant continues to hold the post of sergeant.”

2. Therefore, the NCDRC observed that it is  not inclined to make any observation on the issue of promotion and his service matters.

3. The NCDRC held that the Appellant is a consumer  The Appellant relied upon the decisions of Hon’ble Supreme Court in Laxman Thamappa Kotgiri vs. GM  Central Railways & Ors (2007) 4 SCC 596, Indian Medical Assocation vs. V. P. Shantha[(1995) 8 SCC 655]; Sarita Garg vs. Director National Heart Institute[(2004) SCC 56] and upon the decision of this Commission in Union of India vs. Wg Cdr KK Choudhury (Retd.)[ FA No. 259 of 2007], decided on 08.04.2008. Therefore, relying upon the law laid down from the above cited judgments, in our view, the Appellant was a ‘Consumer’.

4. It has been held that  AHRR surgery for excision of proximal right tibia and replacement with tumor prosthesis was performed. The surgery was not done forcibly, but it was done after obtaining the informed consent of the Appellant. It is pertinent to note that the Respondents have used the advanced technology. The affected Tibial bone was removed and replaced with imported, expensive and customize HMRS titanium prosthesis at the cost of Rs. 5 Lakh (borne by Govt.). It prevented the future complication like complete displaced fracture and above knee amputation of his Rt. Leg.  After limb salvage surgery the entire specimen was sent for Histopathology examination (HPE). It was reported by an Onco-pathologist Lt. Gol R Lakhtakia that the cut margin of the bone and marrow are free of tumor. In our view, the limb salvage surgery was performed in the interest of patient. 

5. It has been observed that the due diligence of team treating doctors at AHRR, which avoided amputation of Rt. Leg. The Appellant, thereafter, could walk on his own feet rather than with an artificial Rt. foot.

6. It has been observed that  as the Appellant has been posted to Pune at his own request where all high quality medical facilities were available. The Complainant subsequently developed infection at surgical site which was managed conservatively with antibiotics and local wound care. He was found positive for Tuberculosis (TB) and was given ATT from Aug 06 to Oct 07. 

7. At Command Hospital Southern Command Pune, an Orthopedic Surgeon Gp Capt PK Agarwal of AFMC/CH(SC)  opined that it was  Septic loosening of joint and  need to undergo Revision Surgery. However, patient had continuous   discharge from sinuses in front of the right leg. On 25.08.2015, Brig Yogesh Sharma, Prof & HOD Ortho at AFMC Pune had examined the Appellant and noted the chronic discharging sinuses in leg. 

8. On the issue of whether NHL diagnosis was wrong or not, it has been held that it  is an admitted fact that on 03.06.2002, the residual knee bone was removed, and its HPE report dated 11.06.2002 revealed “No Cancer (NHL)" and later on the Appellant developed discharging pus sinuses, which was diagnosed as “TB” by Indraprastha Apollo Hospital, New Delhi in August 2006. Therefore, it has been observed that, after span of years, the development of TB can’t be attributed to the diagnosis/ treatment of NHL. It is known that after cancer treatment by chemo/radiotherapy, due to immunosuppression, the patient may develop several infections even TB also. It was neither negligence nor deficiency in service of the Opposite Parties. Both the reports clearly show confirmed diagnosis of NHL of upper end of the Rt Tibia with a nodule in lung. The HPE study from residual tissue was free from tumour and shall not be misinterpreted as ‘no cancer’.

9. As per standard of practice initially patient was treated by the Oncology team with Chemo / Radiotherapy. Still there was evidence of residual disease in his affected leg after the 6 cycles of treatment. It was confirmed by MRI (6.3.2002) and by radiological findings. The subsequent MRI dated 2.5.2002 showed cortical break possibly due to tumour or its extension into the knee joint. The Appellant still had pain and tenderness in his leg and he was unable to walk with weight bearing on his affected leg. If the condition remains untreated further, it could result in to complete fracture and may end up with amputation of the leg or a recurrence of residual NHL to fatal stage. Thus, it has been observed that in our view, the decision of the Oncology team to perform excision of entire affected part of knee bone was accepted procedure. It was not a deviation of standard of practice and we do not see any fault wherein, the Complainant was operated on 3.6.2002 and was discharged from the hospital after complete healing of the complainant's wound on 26.7.2002.    

10. It has been further observed that since the complainant approached Hon'ble High Court of Delhi by way of Writ Petition No. 3712/2003 on the ground that he could not bear the kind of treatment meted out to him. The Hon'ble Court, vide order dated 24.02.2004, directed the Opposite Parties to arrange for treatment of Complainant at AIIMS. On 06.12.2004, the Ortho Surgeons at AIIMS had diagnosed it as infection with cellulites and Proximal Migration of Patelia-Tendon and advised re-attachment. It was not done as the Opposite Parties did not deposit the money at AIIMS.  

11. The Opposite Parties stated that even before operation the Appellant was not a fit soldier and was unable to walk with weight bearing on his affected Right Leg. His prayer (claim) is highly unreasonable, arbitrary. It is interesting to note that the Appellant was drawing salary of Rs.10,000/- per month, but he wants claim of Rs.10,000/- per month to keep an attendant.

12. We further note that on 02.06.2006, the Hon'ble High Court of Delhi permitted Appellant to get himself treated at Indraprastha Apollo Hospital.    After passage of time, wound discharge was confirmed to be Tuberculosis, which was possible due to immunosuppression in the patient after undergoing cancer therapy. In the instant case, primarily it was NHL, not TB.

13.      Regarding mode of treatment, we would like to rely upon case of Achutrao Haribhau Khodwa and Ors. v. State of Maharashtra and Ors[(1996) 2 SCC 634], wherein the Hon’ble Supreme Court held that in the very nature of medical profession, skills differs from doctor to doctor and more than one alternative course of treatment are available, all admissible.

In Jacob Mathew’s case[(2005) SSC (Crl) 1369], it reads as under:

“When  a  patient  dies  or  suffers  some  mishap,  there  is  a  tendency to blame the doctor for  this.  Things have gone wrong and, therefore, somebody must be punished for it. However, it is well known that even the best professionals, what to say of the average professional, sometimes have failures. A lawyer cannot win every case  in  his  professional  career but surely  he  cannot be  penalized for  losing  a  case  provided  he appeared in it and made his submissions.

14.      In conclusion, it has been observed that  expert medical board opinion of Maulana Azad Medical College (MAMC), ruled out negligence in this case. The HPE diagnosis of true cut biopsy as NHL/Small cell tumour was correct. The treatment by six cycles of Chemotherapy and radiotherapy was responded well. Pulmonary nodule (? Metastatic) disappeared after the 4 cycles of chemotherapy. However, there was radiological & MRI evidence of residual tumour at the affected leg; the team of doctors of Oncology, Joint replacement surgery and Radiotherapy took a joint decision to save the Complainant’s limb which could avoid amputation of leg so that he can walk on his own natural feet rather than an artificial foot. It was the specialized surgery, available at AHRR and very few advanced Centers in India.  The affected diseased bone was removed and replaced with an imported customized HMRS Titanium Prosthesis at a cost of 5 lacs to the Government. The treatment was totally done by AHRR as voluntarily in nature. Thus, Complainant’s limb was saved. Lastly it has been observed that, “In our considered view the team of doctors at AHRR has treated the patient as per the reasonable standards and care. There was neither medical negligence nor deficiency during treatment from the Opposite Parties.

 This Case is of 2001, decided in the years 2022. The Patient herein is from Indian Air Force and he went through the unfortunate events. However, as rightly observed by the NCDRC, pain of the Claimant that by itself cannot be a cause for awarding damages for his sufferings. Once again the proper treatment as per protocol and proper documentation helped the Medicos. 

Thanks and Regards

(Adv. ROHiT ERANDE)

Pune.  ©