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TMI Blog1998 (4) TMI 570X X X X Extracts X X X X X X X X Extracts X X X X ..... hock and torture, totalling to ₹ 47 lakhs. Interest is claimed on this amount at the rate of 18% per annum from the date of filing of the suit till payment or realisation. 2. The case of the plaintiff as revealed from the plaint is as follows : The plaintiff was a healthy person studying in college and also was interested in activities like Karate. He was aspiring to do Hotel Management Course at Bombay. 3. In or about the first week of January 1985, the plaintiff started suffering from fever and complete loss of appetite. There was also growth of a boil near the lower side of his abdomen. The plaintiff was feeling weak. His family doctor Dr. Shah treated him for Malaria but found no improvement. The plaintiff was then hospitalised in Shroff Nursing Home at Borivali where he remained as an indoor patient for a period from 15-1-1985 to 20-1-1985. However, there was no marked improvement. He was then advised to get admitted in a larger hospital for diagnosis and treatment. 4. The plaintiff was, therefore, referred to Bombay Hospital where he got admitted on 21-1-1985. CT Scan, Bone Marrow biopsy, X-Rays, Blood test, Urine and Stool tests, biopsy and other related te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ha Veer expired, the plaintiff was asked to visit Tata Memorial Hospital for check-up. Dr. Arvind Kulkarni issued a letter referring the plaintiff to Dr. S.H. Advani, Oncologist, Tata Memorial Hospital. 9. At the Tata Memorial Centre, a thorough physical check up of the plaintiff was done. The doctors came to the conclusion that the plaintiff had fully recovered from cancer. 10. Within a few months after this second radiation, the plaintiff began to suffer one illness after another which is continued till date. First his penis swelled which gave him excruciating pain for about one month. Thereafter he developed an abscess in his left thigh and had to be hospitalized at Tata Cancer Hospital where 1000 CC of pus was drained out and according to the doctors, he was lucky not to have his leg amputated. Soon after, the plaintiff developed Hepatitis B along with severe stomach ache. Thereafter his irradiated area burst open by itself and fetid fecal matter and mucus started coming out of it. This was diagnosed as Fecal Fistula. Tata Hospital referred the plaintiff to Dr. G.T. Hegde, Cancer Surgeon of Bombay Hospital. On 16th December 1986 an emergency Colostomy was performed on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rads was not at all necessary. According to the plaintiff, the second dose was responsible for the multiple illnesses suffered by the plaintiff. He came to know that the second dose of radiation in the same area is given only as a last resort and that too after a definite determination of recurrence of the disease. It is also his case that in order to decide whether there is a recurrence of the disease, various tests like tissue biopsy, bone marrow biopsy and other tests are to be conducted again to confirm recurrence of the disease which were not conducted before the second course of radiation was given to him by Dr. Arvind Kulkarni. According to him, assuming, that there was a recurrence, other medications should have been tried. Thus, according to him, the second dose of radiation was wholly unnecessary and multiple illnesses which the plaintiff has been suffering could have been avoided if due care and caution had been taken by the defendants. 15. The plaintiff's case further is that he was advised that a composite treatment was required in order to conclusively treat him for the post-radiation illnesses and that failure to provide such treatment might prove fatal and w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was that of an expert cancer specialist and radiotherapist. By subjecting the plaintiff to the second dose of radiation in the manner sought to have been done, the defendants have committed a breach of their duty to take care and have thus acted in a negligent way towards the plaintiff. The injury and the damage suffered by the plaintiff are directly linked to the negligence of the defendants. 20. It is the case of the plaintiff that due to the negligence of the defendants, the plaintiff has already incurred expenses of ₹ 2 lakhs on his medical care and treatment. Each day the plaintiff spends about ₹ 75/- towards his treatment and that till the surgical operation which is required to be performed on him urgently, he will have to spend this amount daily. It is further his case that on the daily treatment itself, the plaintiff has spent about ₹ 1 lakh. Besides, for the various treatments, which he had to undergo, he has already spent a further sum of ₹ 1 lakh. For the purpose of surgery, the plaintiff will have to spend at least ₹ 10 lakhs. It is his case that thus quantified damages of ₹ 12 lakhs are due and payable to the plaintiff by the def ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o. 3 for radiation treatment. Defendant No. 3 administered a dose of 4000 rads in 20 sittings in February 1985 to involved area, after obtaining written consent from the plaintiff and his mother. 26. Defendant Nos. 1 and 2 have further submitted that when the plaintiff later developed swelling of left leg, Dr. Asha Veer referred him back to the 3rd defendant on 5th September 1985 for consideration of further radiation, since there was recurrence of the disease in spite of continued treatment of Chemotherapy. This diagnosis was confirmed with a C.T. Scan. The plaintiff came to the 3rd defendant with a referral note from Dr. Asha Veer. The 3rd defendant started second course of radiation after joint consultation with Dr. Asha Veer since there was no other effective alternative treatment for the recurrent cancer. The second course of radiotherapy was not forced on the plaintiff but was started with his consent after discussing the situation with the family members of the plaintiff. 27. Defendant Nos. 1 and 2 have further submitted in their written statement that the second course of radiation consisted of 4000 rads in 20 sittings which was given to the plaintiff in October 1985. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tiff was treated well by him at the Bombay Hospital Trust in accordance with settled norms prevalent in the profession and there was no negligence or ill-treatment to the plaintiff. 33. Defendant No. 3 has submitted that the suit is hopelessly barred by limitation. It is his contention that second course of radiation therapy was given to the plaintiff in the month of September 1985 and according to the story of the plaintiff, his alleged illness commenced in or about August 1986 but that the plaintiff ultimately chose to file the suit only in the year 1991 and hence the suit was hopelessly time barred as it was filed beyond the prescribed period of limitation. 34. Defendant No. 3 has further submitted that the suit was also bad for non-joinder of necessary parties. It is submitted that the fistula in the left groin developed after the operation conducted on him on 11th August 1986 at Tata Memorial Hospital and that the fistula was a direct result of said operation. Therefore, according to the contention of defendant No. 3, Tata Hospital also ought to have been made a party to the suit for a complete adjudication of the matter in issue. 35. Defendant No. 3 has then further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he late Dr. Asha Veer once again asked defendant No. 3 to administer radiotherapy on the basis of C.T. Scan done. Thereafter defendant No. 3 examined the plaintiff and checked the C.T. Scan and on the basis of both, concurred with the view of the late Dr. Asha Veer. The plaintiff was examined again by defendant No. 3 and after seeing the C.T. Scan, defendant No. 3 agreed with the recommendation of the late Dr. Asha Veer for giving the second course of radiation therapy which was essential for controlling the growth of cancer and for saving the life of the plaintiff. 40. Defendant No. 3 has submitted that at the time of first treatment the plaintiff and his mother were explained about the side-effects of radiotherapy and treatment was commenced only after his mother consented to the said therapy. On the second occasion no consent letter was obtained in writing in view of the then prevailing practice of the radiotherapy department of the Bombay Hospital. Accordingly on the basis of the opinion of the late Dr. Asha Veer and the C.T. Scan report and after defendant No. 3 physically examined the plaintiff, the second course of radiotherapy was administered. It is also defendant No. 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. It is also submitted by him that during this period, he was under the treatment of his physician and the abscess was operated and drained out at Tata Memorial Hospital on 11th August 1986. 45. Defendant No. 3 has thus denied that the plaintiff's illness were by reason of or related to second radiation treatment given by defendant No. 3. It is his submission that the second radiation treatment was necessary on account of recurrence of cancer and was also recommended by Dr. Asha Veer. 46. Defendant No. 3 has submitted that when the plaintiff approached him for getting a certificate for proceeding abroad for further treatment and surgery, he issued the said certificate to help the plaintiff. It is further stated by defendant No. 3 that subsequently, however, the plaintiff started approaching defendant No. 3 for money which was not possible for him to give. According to him, the plaintiff was treated well and to the best of his ability and the facilities available at Bombay Hospital. It is submitted by defendant No. 3 that the plaintiff was treated free of charge by the Bombay Hospital. However, the plaintiff after the year 1989 started threatening defendant No. 3 and othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the plaintiff. All of them are highly qualified persons in their respective fields. 50. Defendant Nos. 1 and 2 did not examine any witnesses. 51. Defendant No. 3, Dr. Arvind Kulkarni, examined only himself. 52. Arguments were concluded on 20th April 1998 and judgment is being dictated in the open Court from today. 53. Issues as framed and settled by this Court are reproduced below. After marshaling the entire evidence, and after duly appreciating the same, I have recorded my findings against each issue. Reasons for arriving for those findings are given in the foregoing paragraphs: ISSUES FINDINGS 1. Is the suit bared by limitation? Yes. 2. Is the suit bad for non joinder of necessary parties as alleged in paragraph No. 1 (b) of written statement of defendant No- 3 ? Yes. 3. Whether defendant Nos. 1 and 2 or any of them can be held vicariously liable for the acts of defendant No. 3 ? Withdrawn by consent. 4. Does th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he part of defendant No. 3 as alleged by him in paragraph 25 of the plaint ? Does not survive since answer to issue No. 12 is in the negative. 14. Does the plaintiff prove that due to negligence of defendant No. 3, the plaintiff has incurred expenses to the tune of rupees two lakhs on his medical care and treatment as alleged in paragraph 25 of the plaint ? Not proved. 15. Does the plaintiff prove that he had spent a sum of rupees one lakh for his day to day treatment as alleged by him in para 26 of the plaint ? In the negative. 16. Does the plaintiff prove that he is entitled to recover from the defendant Nos. 1 , 2 and 3 jointly and severally a sum of Rupees Twelve Lakhs as alleged by him in paragraph 26 of the plaint ? In the negative. 17. Does the plaintiff prove that he has suffered mental and physical pain due to the negligence of defendant No. 3 as alleged by him in paragraph 26 of the plaint ? In the negative. 18. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 4000 rads of radiation were given in 20 sittings during this period. The duration of the second course of radiation was from 7-9-1985 to 5-10-1985. During this period also 4000 rads of radiation was given in 20 sittings. The time gap between these two courses was of more than 6 months. 59. Coming to the three major ailments mentioned by the plaintiff in para 15 of his plaint, as far as the complaint of swollen leg is concerned, it was there even before the second course of radiation was administered to him. The plaintiff has stated in para 9 of the plaint that while he was to take the 10th Course of Chemotherapy treatment, he developed a swelling in left leg. In fact because of this swelling of the left leg, the Chemotherapy treatment had to be stopped. Dr. Asha Veer referred him to Dr. Kulkarni with referral note (which is part of Exh. D1-10 collectively) specifically writing in it that there was a residual disease in abdomen with oedema in left leg. She also suggested that Dr. Kulkarni should consider radiation of the inverted Y field. This referral note is dated 5th September 1985. 60. As far as the problem of Fecal Fistula is concerned, the said problem/injury/ damage o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wari v. Kalidas Raha reported in A.I.R. 1929 Pat 245 to substantiate his arguments that this suit is governed by Article 36 of the Indian Limitation Act, 1908 (now corresponding Article 113 of the Limitation Act, 1963) and limitation runs not from the date of misfeasance or malfeasance, but from the time the injury results. In the present case at hand the alleged injury obviously resulted on 16th December 1996 and, therefore, limitation began to run from that date and came to an end in 1989. I agree with the submission made by Mr. Merchant. 63. Counsel for the defendants also brought to the attention of the Court the innovation/trick adopted by the plaintiff to bring his suit within the period of limitation. They highlighted the newly added sentence in writing by pen in para 33 of the plaint to plug the loop hole. The newly added sentence in para 33 in the otherwise type written plaint reads as follows: Which fact he came to know in or about May 1988 . 64. In para 16 of the plaint, the plaintiff has narrated that it was only in the mid-1988 that Dr. Hegde and Dr. Vyas of Bombay Hospital intimated that the second radiation was wholly unnecessary. In his evidence also he h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ach the Court with a story that his knowledge about the alleged excessive radiation was only from May 1988 and, therefore, his suit, filed in 1991 was within the prescribed period of limitation. This attempt, however, has been proved to be unsuccessful. I, therefore, hold, for the above reasons, that the plaintiff's suit is barred by limitation. Issue No. 1 is, therefore, answered in the affirmative. ISSUE NO. 2 : 69. It is contended by the defendants that the suit is bad for non-joinder of necessary parties and hence it should be dismissed on that count alone. 70. Defendant Nos. 1 and 2 have submitted that the suit filed against the Bombay Hospital Trust through its Medical Director and Superintendent, who happen to be the employees of the said trust, without joining all the trustees of the said Bombay Hospital Trust is bad and has to be dismissed. 71. Defendant No. 3 also has taken an additional plea that Tata Memorial Hospital also was a necessary party to this suit as the plaintiff has taken treatment from Tata Memorial Hospital and from various doctors of Tata Memorial Hospital and hence the suit is bad for non-joinder of necessary parties and has to be dismiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pper portion of his left thigh and when the pain became unbearable for him, he went to Tata Memorial Hospital and met Dr. Gopal who after examining him, told him that there was formation of pus in his left thigh and advised that the pus should be drained out. Accordingly one Dr. Deshpande of Tata Memorial Hospital drained out the pus from his left thigh. After this was done, the plaintiff was admitted in Tata Memorial Hospital and got discharged after two weeks. This is all narrated by the plaintiff in para 16 on page 10 of his deposition. 75. The plaintiff has again stated in para 17 on page 11 of the Notes of Evidence that from 12th October 1986, he started getting mild pain in his right leg and so on the next day, he went and saw Dr. Gopal at Tata Memorial Hospital, who examined him and referred him to Dr. Kopikar. Dr. Kopikar took out flesh from the right upper thigh of the plaintiff and sent it to the pathological department of Tata Memorial Hospital. Dr. Kopikar told him that the result of the test was negative. 76. Thereafter on 6th November 1986, the plaintiff again went and saw Dr. Gopal at Tata Memorial Hospital as he found that his penis was swollen. Dr. Gopal exam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at all disclose at any place or aver as to how and in what manner defendant Nos. 1 and 2 are liable to pay any damages to the plaintiff. It is averred by them that it is not set out in the plaint as to what duty of care was owed by defendant Nos. 1 and 2 to the plaintiff and how and in what manner they committed breach of that alleged duty. According to them, the plaint merely sets out certain acts on the part of defendant No. 3, Dr. Arvind Kulkarni, and alleges that those acts were of negligence and the plaint then proceeds to state that the defendants are jointly and severely liable for negligence. It is submitted that no averment whatsoever is made anywhere in the plaint, connecting defendant Nos. 1 and 2 to the alleged acts of negligence committed by defendant No. 3 and thus no cause of action is disclosed against defendant Nos. 1 and 2. It is, therefore, submitted by defendant Nos. 1 and 2 that the suit ought to be dismissed as against them on this ground alone. 81. It is submitted by defendant Nos. 1 and 2 that if it is the case of the plaintiff that the Hospital was the employer of defendant No. 3, Dr. Kulkarni, and was, therefore, vicariously liable, then the plaintiff w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that the wording in prayer Clause (c) will throw light on the perplexed mind of the plaintiff and the contention in his grounds on this aspect. I find substance in this submission. Indeed, nothing has been done by the plaintiff to show any nexus between defendant Nos. 1 and 2 and the alleged acts of defendant Nos. 3. They have been just joined as defendants without explaining how suit can be filed against defendants Nos. 1 and 2 when his grievance is against defendant No. 3 and if defendants Nos. 1 and 2 are parties, what is his grievance against defendant No. 1 and 2, whether defendant No. 1, 2 and 3 are jointly and severely liable or what at all is the claim of the plaintiff against these defendants. The plaintiff has not even used the words 'joint and severe responsibility' with respect to the defendants, nor has he said anything about vicarious liability of defendant Nos. 1 and 2. Defendant Nos. 1 and 2 in their written statement have, without prejudice to their other contentions, taken up the defence of various liability. After the plaintiff closed his case, defendant Nos. 1 and 2 came up with an application for amendment of the written statement to delete this defe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ear Dr. Kulkarni, Referring a c/o. Hodgkins disease He has recd. 3 cycles of chemotherapy, but as yet has residual disease in abdomen. (CT Scan done) with oedema of L leg. Kindly consider Inverted 'Y' field radiation. Thanks, Sd/- Dr. Asha Veer. 89. This note was shown to the plaintiff who agreed with the contents of the said note except saying that he had received more than 3 cycles of radiotherapy. After receiving this note from Dr. Asha Veer, Dr. Kulkarni wrote to her by his note dated 7-9-1985 referring to the recurrence of the Hodgkins disease of the plaintiff which was causing obstructive oedema in left lower leg and also writing about second course of palliative radiotherapy in the Inverted 'Y' portion. Thus, as per the suggestion given by Dr. Asha Veer with which Dr. Kulkarni agreed, second course of radiation was commenced from 7-9-1985 which was completed on 5-10-1985. 90. When the plaintiff had come to Dr. Kulkarni on 7-9-1985, he had brought all the reports, CT scan, X-rays along with referral note from Dr. Asha Veer. Dr. Kulkarni has deposed in para 41 on page 366 of his deposition that Dr. Asha Veer had repeated CT Scan of ab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he second CT-Scan report. He proceeded to explain that by the word fullness he meant palpation of some swelling in certain parts where it should not be normally there. 92. Dr. Kulkarni was shown in the Court Exh. H and H-1 viz., CT-Scan Films and CT-Scan report dated 27-8-1985. There were five scan films marked as I, II, III and IV and one plate seemed to be missing. He then stated that after seeing these CT-Scan films, these scan films showed multiple soft tissue shadows in abdomen specially, in para-aortic area suggestive of enlarged lymph nodes. The full scan plates of groin and upper thigh were not present in that group of films. However, on the available scan sections, there appeared to be some soft tissue shadow in the left groin suggestive of lymph node enlargement. 93. It is pertinent to note that the very same CT-Scan report along with other reports of the plaintiff were shown to P.W. 4 Dr. Dinshaw, who stated as follows : On a very quick review of the papers and without clinically examining the patient, I would maintain that this 20 years old male with a history of fever and generalised lymph nodes in the abdomen and pelvis and possibly in the left upper cerv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that cancer and how to control it. Dr. Kulkarni, as per the accepted practice prevalent for treating Hodgkins lymphoma, with consultation with the plaintiff's treating Oncologist, administered second course of radiation as 'palliative' treatment. The fact that 'palliative' treatment was given itself goes to show that there was a residual cancer because Dr. Hegde has stated in para 14 on page 204 of his evidence that, the intent of treatment to a cancer patient can be either curative or palliative. In the curative treatment, the intention is to cure the patient in terms of adding quantity and quality to the life whereas, palliative treatment is to alleviate the pain and improve the quality of life. Palliative treatment does not mean that the patient will not be cured, but the chances of curing the patient are very less. 97. It is true that it has come in evidence of Dr. Gautam Sen, P.W. 3 that cancer is not the only cause of enlarged lymph nodes and that other causes of enlarged lymph nodes are infection, auto immune disease apart from cancer. 98. It was the contention of Mr. Mihir Desai, appearing for the plaintiff that just because the second CT-Scan sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the plaintiff's disease. It was either stage I, stage II or stage III-B; But it certainly required combination of Chemotherapy and Radiotherapy. Thereafter Dr. Asha Veer started with Chemotherapy and when 10th cycle was about to start, the plaintiff had the swelling of the leg. Therefore, she stopped Chemotherapy treatment and referred the plaintiff for second course of radiation to Dr. Kulkarni stating that she would consider Chemotherapy after the second radiation course was over. Thus, the treatment of the plaintiff was continuing. It was not complete. It was, therefore, argued by the defendants' Counsel that at this stage there was absolutely no need of second biopsy. They submitted that CT-Scan and CT-Scan reports were there, X-ray and X-ray reports were there. There was clinical examination by Dr. Asha Veer as well as by Dr. Kulkarni who confirmed the existence of the cancer in the plaintiff's body. Dr. Kulkarni stated in para 59 on page 382 of the Notes of Evidence that the fields of the first course of radiation and second course of radiation were basically different although there was small area of partially overlapping in the left lower abdomen. He stated t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intiff's Advocate. Therefore, whatever reasons defendant No. 3 Dr. Kulkarni has given for not conducting second biopsy before administering second dose of radiation have to be accepted as they go unchallenged. Not only this, but the other expert witnesses have corroborated and have lent support to what Dr. Kulkarni has stated. There is absolutely a consensus on this issue. It, therefore, has to be said that there is no lapse on the part of Dr. Kulkarni in avoiding biopsy before he administered second course of radiation to the plaintiff. 102. It also should be kept in mind that the plaintiff's biopsy wound had not healed. There was oozing from the wound. Dr. Hegde has stated in his deposition that the fact that the first biopsy wound had not healed completely, itself showed that the disease (cancer) was not cured. Second CT-Scan plates and reports do show enlargement of lymph nodes. When a patient like plaintiff having a history of malignant disease like cancer which spreads very fast in the body and when the existence of disease lymph nodes is afflicted with cancer was proved by first biopsy, the presence of the enlarged lymph nodes as reflected in the second CT - Scan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ances o! each case is what law requires. 104. Mr. Merchant relied upon a catena of English cases decided by House of Lords to substantiate his argument that if the doctor has adopted a practice of medicine in treating patient, he cannot be called negligent even though there are others who do not agree with the line of treatment relied by him. He especially relied on Bolam v. Friern Hospital Management Committee (1957)2 All E.R. 118. In this case the plaintiff, who was suffering from mental illness was advised by a consultant, attached to the defendant's hospital to undergo electro convulsive therapy. He signed a form of consent to the treatment but was not warned of the risk of fracture involved. Even that risk was small viz. of the order of one in ten thousands The plaintiff sustained fracture on second occasion during this treatment. No relaxant drugs or manual control (save for support of the lower jaw) were used, but a male nurse stood on each side of the treatment-couch throughout the treatment. Use of relaxant drugs would have admittedly excluded the risk of fracture. Among those skilled in the profession and experienced in this form of therapy, however, there were tw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;s case is that defendant No. 3 came to a hasty decision and administered second course of radiation without confirming that there was recurrence/residual cancer and thus was guilty of negligence. Defendant No. 3's case is that what he did was the accepted practice and that he did not go beyond that. It was the accepted practice or rather it is an accepted practice that in the case of Hodgkins Lymphoma, combination of Chemotherapy and Radiotherapy is the only treatment. All the expert witnesses have concurred with this They have also concurred with this that once the plaintiff's treatment is continued at per the finding of the first biopsy and the line of treatment is decided, the second biopsy is not mandatory. Dr. Kulkarni stated that if he had not given second course of radiation, the plaintiff's cancer would have spread further as it is a fast-growing disease and that it would have taken toll of his life. He has also said that the outcome of his treatment is very much there to see that the plaintiff is very much alive even 13 years after the treatment started and that they were all happy to see that. One wonders whether and how this will amount to negligence. Who wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was a residual cancer and the combination treatment of Chemotherapy and Radiotherapy as per the accepted practice of profession was the only treatment for the plaintiff's disease who was diagnosed for Hodgkins Lymphoma. Dr. Kulkarni in his deposition has so stated which is duly corroborated by other expert witnesses. 108. The plaintiff has also failed to prove the causal connection between his ailment and the alleged negligence of the defendants. It is an admitted fact that second course of radiation was completed on 5th October 1985. Thereafter the first ailment of the plaintiff viz., Fecal Fistula occurred on 12th December 1986. This time gap, according to Mr. Merchant appearing for defendant No. 3 is of immense significance. He submitted that this time gap is of 1 year 2 months and 7 days to be exact. In between he was treated by various doctors viz., doctors from Tata Memorial Hospital, doctors from Rose Petal Nursing Home etc. What treatment was given to him during this time is not before the Court. Mr. Merchant argued that during this period he was not in the control or management of Dr. Kulkarni and the alleged negligence of Dr. Kulkarni, therefore, is not at all est ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use of the shifting stand of the plaintiff, his evidence has to be carefully scrutinised keeping in view what basically he has pleaded in the plaint and how he has deviated from the same. 110. In view of the above mentioned discussion, the conclusion is inescapable that the plaintiff has failed to prove any negligence on the part of the defendants. Issues Nos. 5, 6, 8 9, 11 and 12, therefore, answered in the negative. ISSUE NOS. 7 AND 10: 111. It is plaintiff's case that his ailments are because of the second course of radiation given to him. It is further his case that the second course of radiation was not at all necessary as he was cured of his disease. I have analysed and marshalled the evidence which points to the conclusive finding that this was not the case; that second CT-Scan report, X-ray reports, clinical findings, referral note given by Dr. Asha Veer, the effect of not healing of biopsy wound etc. all go to prove conclusively and cumulatively that the plaintiff's case is unfounded and not substantiated by these documents. Assuming for a moment, for the sake of argument, that some of his ailments are because of second course of radiation, does the plaint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hus, it is evident that the complaint of swollen leg cannot be connected or linked to the second course of radiation. 113. As far as complaint of Fecal Fistula is concerned, Dr. Hegde in para 101 on page 254 of Notes of Evidence has stated that Fecal Fistula can occur due to other reasons also even though radiation and chemotherapy is not given to that patient. This statement of Dr. Hegde clinches the issue of problem of Fecal Fistula suffered by the plaintiff. Dr. Hegde also has given in his Examination-in-Chief at page 217, the cause for plaintiff's Fecal Fistula. This is what he has stated, This (plaintiff's) Fecal Fistula was a result of infection caused by the leakage of stools from the large intestine into the soft tissues causing an infection and slowly, forming an abscess and opening or bursting open into the exterior through the skin forming an abnormal continuous passage of stools. 114. The plaintiff's Fecal Fistula occurred on 12th December 1986 and the second course of radiation was over on 5th October 1985. As already pointed out, in between the plaintiff had taken the treatment from various other doctors. He went to Tata Memorial Hospital. He took ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nterior abdominal wall and the opening is secured to the skin by stitches. After the Colostomy, the passage of stools almost stopped through the Fecal Fistula. 117. It is also stated by Dr. Hegde that there was permanent cure of Colostomy and the operation though difficult was not uncommon in India. Dr. Sen, P.W. 3 has also expressed similar suggestions. He has said that there are expert doctors in India who can perform this type of operation and that there is no need to go abroad. Dr. Hegde stated that the plaintiff never came to him to seek his opinion. It has come in evidence that Dr. D'Souza of Tata Memorial Hospital also suggested closure of Colostomy but the plaintiff stated that the suggestion made by Dr. D'Souza did not inspire confidence in him. Defendant No. 3 himself suggested to the plaintiff when he came to see him that the plaintiff should go and seek some plastic surgery for closure of Colostomy. 118. From this evidence it is clear that not only there is not causal connection between the Colostomy operation undergone by the plaintiff and the alleged negligence of defendant No. 3 but that the plaintiff has not paid any heed to the advice given by defenda ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... care and treatment and that each day he spends about ₹ 75/- towards his treatment. On the daily treatment, he has stated that he has spent about ₹ 1 lakh and for various treatments which he had to undergo, he has already spent further sum of ₹ 1 lakh. It is his case that for corrective surgery, he has to go abroad for which he is required finance of at least ₹ 10 lakhs. He has further stated that he wanted to become a chef. That it was his dream which could not be fulfilled because of this ailment and if he had in fact become a chef, he would have earned at least ₹ 4,000/- per month for the rest of his active life which would have come to ₹ 15 lakhs. The plaintiff has also stated that because he has undergone mental and physical pain because of the negligence of the defendants, he is entitled to ₹ 20 lakhs from them. 123. It is pertinent to note that no documentary evidence has been produced by the plaintiff to support his claim. No bills/vouchers are produced to substantiate his claim or to assist the Court to come to a conclusion that the plaintiff has in fact spent this much amount under the heads shown by him. About four bills of Bom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the same. It has also come in the evidence that though the operation is difficult one, it is not uncommon. In fact Dr. Hegde has stated that the plaintiff has not bothered to approach him to seek his opinion on this. It has also come in the evidence of the plaintiff himself that Dr. D'Souza had suggested corrective surgery which would have put an end to the plaintiff's ailment. However, to use the plaintiff's own words, the procedure suggested by Dr. D'Souza did not inspire confidence in me . When there are able and competent doctors in India, as we all know and as is specifically stated by Dr. Hegde and Dr. Sen, so also Dr. Kulkarni, one wonders why the plaintiff is so keen to go abroad to undergo surgery and that too on urgent basis. The claim 'of urgency put forward by the plaintiff is also totally unfounded. 13 years have passed and without undergoing surgery on urgent basis the plaintiff is very much around, quite active and mobile though admittedly suffering from various ailments. 127. The plaintiff has admitted that he is taking tuitions at his residence. He has not admitted specifically as to how much amount he is earning by way of taking tuitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plaintiff has to be observed. As pointed out above, the plaintiff has not approached the Court with clean hand. He has suppressed material from the Court while making application to file plaint under Forma Pauper is to the Prothonotary Senior Master. He has also written threatening letters to defendant No. 3. His brother and his mother were also signatories to these letters. These letters were exhibited as 'U', 'V', 'W' and 'Z'. He also went to Pune along with his brother and threatened Dr. Kulkarni. He tried to extract money from him. The contents of the letters are also threatening. It was also improper that when the matter was subjudice, the plaintiff gave interviews to various reporters which appeared in the newspapers like Sunday Observer and Mumbai Age. These interviews were obviously given with an intention to tarnish defendant No. 3's image and reputation. All the expert witnesses have spoken highly about the professional skill of defendant No. 3. Defendant No. 3 has stated that except the plaintiff, no one else has filed any complaint in any Court of law against him in his career span of 30 years. The plaintiff tried to blackmail defe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsumed. There is a famous Sanskrit saying SHARIR MADHYAM KHALU DHARMA SADHANAM ! meaning thereby that Healthy body is indeed the prime instrument for achieving 'Dharma'. Body is the abode of the soul. Hence it is the duty of the human being to keep it clean. If the body is diseased, it brings misfortunes. Prince Siddartha who later on became famous as Gautam Buddha, having seen a person who was very aged, on seeing a corpse, and on seeing a sick person and on seeing his deer and near ones wailing became distressed and left in search of attaining Nirvana and in search of knowledge as to what can be done to cure these misfortunes of human body. 132. No one can deny that no joy would be left in life, if a person is afflicted with ailments. He feels angry and anguished. He goes around for cure of those ailments. Some time he succeeds and some time he does not. When he does not succeed, he gives vent to his anguish and anger by targeting the doctor who has attended on him. The plaintiff in this case is one such anguished and angry person and he has targeted the defendants, more particularly defendant No. 3 Dr. Kulkarni. Such a situation is indeed unpleasant and has to be av ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ording, pulse recording, blood pressure, blood transfusion record, prescriptions of medicine, blood, blood balance record, fluid balance record, attending doctor's treatment etc. The hospital/attending doctor must co-operate in furnishing copies of all these documents to the patient/his relatives. In fact our High Court in Writ Petition No. 3720 of 1991, 1996(3) Bom.C.R. 214 , Raghunath Raheja v. Maharashtra Medical Council and others, by its order dated 11-1-1996 has given directions to the Maharashtra Medical Council and the State of Maharashtra and has observed that hospitals or doctors cannot claim any secrecy or any confidentiality in the matter of copies of the case papers relating to the patient and that they must be made available to him on demand subject to payment of usual charges. It was also directed that if necessary, Medical Council may issue a press-note in this behalf giving it wide publicity in all the media. It is not known as to whether this direction has been implemented by the concerned authorities. 135. All public hospitals/medical practitioners destroy their record after a certain period. Public hospitals at least give some notice in the newspapers abo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ition, argued that defendant No. 3, Dr. Kulkarni is a retired person, who is settled at Pune and who was constrained to come down to Bombay very frequently to attend to this case and that the plaintiff's filing of this suit was misconceived and without any merit, was an abuse of the process of law. 139. It is difficult to agree with these submissions of the defendant's Counsel. The plaintiff was struck with the deadly disease like cancer at the tender age of 21 years. He was treated by renowned doctors. Defendant No. 3, Dr. Kulkarni, administered radiation therapy to the plaintiff in consultation with Dr. Asha Veer, who was treating Oncologist of defendant Nos. 1 and 2 Hospital. The plaintiff is very much alive today. However, he is indeed inflicted by various ailments. He is genuinely labouring under a belief that all these ailments are because of second course of radiation and that Dr. Kulkarni was negligent in administering the same to him. He has certain reasons of his own for arriving at this conclusion. This conclusion may be scientifically wrong, but he cannot be prevented for that reason to take recourse to any legal remedy which is available to him. The plaintif ..... X X X X Extracts X X X X X X X X Extracts X X X X
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