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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 ..... s of amenities, mental and physical shock 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Since later on Dr. Asha 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 000 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 defendants. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. It is the contention o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 narrated the relevant facts in his writ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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's contention that in medical terms the two cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 others. It is submitted that the complaint made to the Maharashtra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ective 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 the plaint disclose no cause of action against defendant No. 1 and 2 or any one of them as alleged by them in their written statement ? Yes. plaint does not disclose cause of action against defendant Nos. 1 and 2 or any one of them. 5. Does the plaintiff prove that he has suffered any loss or damage as direct re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Does the plaintiff prove that he is required to undergo a surgery on urgent basis abroad and the costs thereof would be at least rupees ten lakhs as alleged by him in paragraph 29 of the plaint ? In the negative. 19 Does the plaintiff prove that he is entitled to claim a sum of rupees twenty lakhs as alleged by him in paragraph 26 of the plaint ? In the negative. 19-A Does the plaintiff prove that he is entitled to the reliefs as prayed ? In the negative. 20. What decree ? As per order below. 21. What order ? As per order below. REASONS ISSUE NO. 1 : 54. It is the contention of all the defendants that the suit is hopelessly barred by limitation. It is, therefore, submitted by them that the suit has to be dismissed. 55. Mr. Ketan Parikh appearing for defendant Nos. 1 and 2 and Mr. Merchant appearing for defendant No. 3 have substantiated their contention with historical narration of relevant facts on this point. For this purpose, they have drawn the Court's attention to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt in para 20 on page 11 of the notes of evidence. Thereafter Colostomy operation was performed by Dr. G.T. Hegde on 16th December 1996. History Sheet dated 16th December 1986 is a part of Exh. CC. collectively. In this history sheet, there is a mention of, "excessive radiation". Now as per the deposition of the plaintiff's witness No. 2 Dr. Hegde, the history sheet is prepared as per narration of the patient himself. This is what he has stated in para 81 on page 239 of his deposition. To quote his exact words, "History sheet is the one wherein, the patient's history regarding the disease and its symptom is recorded, as narrated by the patient". Again in para 101 on page 255 of the notes of evidence he has reiterated that, ".....History sheet is the narration given by the patient himself and recorded as narrated by the patient" 61. Mr. Ketan Parikh and Mr. Merchant appearing for defendants vehemently argued that since the history sheet was narrated by the plaintiff himself as stated by his own witness, it is quite evident that the plaintiff had knowledge that his alleged condition was because of the so-called "excessive radiation". B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... para 26 on page 16 of the notes of evidence he has only referred generally to the alleged conversation between Dr. Hegde and Dr. Vyas of Bombay Hospital. He stated that he was told by Dr. Hegde and Dr. Vyas of Bombay Hospital that his present condition was due to excessive radiation. Counsel for the defendants vehemently opposed to record the statement of the plaintiff on the ground of hearsay. On this, the Court made a specific query to the plaintiff's Advocate whether the plaintiff was going to examine Dr. Hegde and Dr. Vyas, whereupon Mr. Mihir Desai appearing for the plaintiff stated that he was certainly going to examine Dr. Hegde. On this statement being made by the plaintiff's Advocate, statement of the plaintiff was recorded for the time being observing that evidentiary value of the same would be decided at the time of arguments. 65. Specific reference to the alleged conversation between the plaintiff and Dr. Hegde and Dr. Vyas was again made by the plaintiff in para 31 on page 19 of the notes of evidence. This deposition of the plaintiff was recorded on the adjourned date. On that day in his examination-in-chief he stated that the said conversation took place at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... para 2 of the plaint, has averred that the plaintiff is not aware of the names of the trustees and as and when he became aware of the same, he would join the trustees as defendants. Thereafter M/s. Kanga & Co. who are Solicitors for defendant Nos. 1 and 2 communicated to the Advocate of the plaintiff, the names of trustees of Bombay Hospital Trust. There is clear cut admission on this point which appears in para 113 on page 121 of the plaintiff's cross-examination. Thus, in spite of having come to know the names of all the trustees of the Bombay Hospital Trust, the plaintiff did not take any step by way of amendment to join the trustees to the proceedings as defendants. This was certainly a procedural lacuna of a serious nature on the part of the plaintiff and he has to face the consequences for the same. He cannot blame defendant Nos. 1 and 2 because they did inform the names of the trustees to the plaintiff for enabling him to take prompt necessary steps in the matter. It was, however, the inaction on the part of the plaintiff himself who failed to take necessary steps. 73. As rightly contended by defendant No. 3, even Tata Memorial Hospital was a necessary party to the suit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... problem of Fecal Fistula started, the plaintiff was first taken to Tata Memorial Hospital in an ambulance where Dr. Tapan Saikia examined him and it was Dr. Tapan Saikia who gave him a letter and asked him to see Dr. G.T. Hegde of Bombay Hospital. 77. From all these narration of the plaintiff in his Examination-in-Chief, it will be clear that Tata Memorial Hospital played crucial role in treating the plaintiff's various ailments. The plaintiff has made frequent references to Dr. Advani, Dr. Tapan Saikia, Dr. Gopal, Dr. Raghu. Dr. D'Souza etc. From his evidence it appears that a crucial role has been played by doctors of Tata Memorial Hospital as far as advice to the plaintiff and his treatment was concerned. He was admitted in Tata Memorial Hospital for quite some time. He was operated upon in Tata Memorial Hospital. He was frequently visiting Tata Memorial Hospital for being examined by Tata Memorial Hospital doctors. A team of doctors headed by Dr. Advani was allegedly discussing the problems faced by the plaintiff. We do not know what was the discussion. We do not know what was the treatment given to him. Some case papers are in the proceedings, but no doctor from Tata ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is no such averment in the plaint and, therefore, the plaintiff cannot be permitted to argue the same. It is also pointed out by defendant Nos. 1 and 2 that there is no evidence on record to show that defendant No. 3 was an employee of the Hospital. It is in fact stated by the plaintiff in his deposition that he is not aware of the relationship between the Bombay Hospital and defendant No. 3. 82. It is further pointed out by defendant Nos. 1 and 2 that Medical Director and Superintendent of the Bombay Hospital are neither personally involved, even remotely, in the treatment of the plaintiff, nor are they the employers of defendant No. 3 and under these circumstances, the suit against defendant Nos. 1 and 2 has to be dismissed. 83. Mr. Ketan Parikh argued that no suit can lie against "Bombay Hospital Trust" as such, because the trust is not a legal entity and that the trust is merely an obligation attached to the property settled on trust and that the suit has to be filed against all the trustees of the trust and that if that is not done, no decree can be passed in the suit against the trustees or the trust and the suit has to be dismissed. 84. The point about not joini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d upon this defence. This application of defendant Nos. 1 and 2 was allowed by consent and subsequently Issue No. 3 came to be deleted accordingly. Under these circumstances, no cause of action is disclosed against defendant Nos. 1 and 2. Hence Issue No. 4 is answered accordingly and it is held that the plaint does not disclose any cause of action against defendant Nos. 1 and 2 or any of them. ISSUES NOS. 5. 6. 8. 9. 11 AND 12 : 86. The plaintiff's case, in a nut shell, is that though he admittedly and certainly was suffering from cancer (Hodgkins Lymphoma), he was cured of it, that his treating Medical Oncologist late Dr. Asha Veer told him so, and hence second course of radiation was not at all necessary and that the said second course of radiation was administered to him by defendant No. 3, Dr. Kulkarni, without bothering to conduct the necessary tests, essentially the biopsy and thus the conclusion of Dr. Kulkarni to administer the second dose of radiotherapy to the plaintiff was premature one and amounted to negligence. It is also his case that the second course of radiation should not have been given to him at the same place. 87. Now, let us examine the plaintiff's ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... can report. She thought that the plaintiff's cancer was not responding satisfactorily to the Chemotherapy treatment given so far by her. She wanted Dr. Kulkarni to see the plaintiff and give radiation treatment as second course for control of the cancer. When Dr. Kulkarni saw the plaintiff, he also got previous record from his department. He went through all the record, referral note and then studied the Scan and other reports. He then examined the patient clinically. He agreed with the recommendation of Dr. Asha Veer that he had a residual cancer producing swelling of left leg and that this needed second course of radiation therapy since Dr. Asha Veer was not happy with the result of the Chemotherapy so far. After studying the scan report and after his clinical examination of the plaintiff, Dr. Kulkarni also concluded that the plaintiff had some lymph nodes in the left groin suggesting recurrence of cancer in that area. He then discussed the whole matter with the plaintiff and his relatives who were present at that time. He explained to them recommendation of Dr. Asha Veer and himself for second course of radiation since there was no other alternative treatment left at that ti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mphocyte large non-cleaved cell type would be staged as III-B malignant lymphoma. In such a situation, his management would be on the same lines with systemic chemotherapy and involved radiation therapy. I would have also given the same treatment as is revealed from the reports which I have gone through quickly." After seeing CT-Scan report before the second course of radiation was given she commented that they indicated a few enlarged retro-peritoneal and pelvic lymph nodes, Further she stated that in the CT-Scan of August 1985 thee were residual nodes which were slightly enlarged. She further stated that if it was considered that local residual disease was present, further second line chemotherapy and perhaps radiation therapy would still remain the alternative treatments to offer this patient (plaintiff) and that the second line treatment could only be defined by the treating physician at that time after full evaluation and investigation taking into account all the parameters on merit for deciding further treatment. 94. The evidence of Dr. Dinshaw who is an independent witness, who is not involved with the treatment process of the plaintiff at any stage, who is renowned i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , it does not mean that there was a recurrence of cancer and that biopsy ought to have been done to confirm this finding. Mr. Ketan Parikh appearing for defendant Nos. 1 and 2 and Mr. Merchant appearing for defendant No. 3, however, submitted that Dr. Gautam Sen has also stated on page 277 of his Notes of Evidence that "when it is an established fact that the person is suffering from a cancer, and the lymph nodes are found enlarged at the beginning of the treatment, if they persist or if they reappear again, in that particular situation, then one must think seriously in terms of either residual disease, i.e. the cancer still persists or it has recurred. "It is argued vehemently both by Mr. Merchant and Mr. Parikh that second biopsy was not necessary. Their argument was based on the depositions given by Dr. Gautam Sen, P.W. 3 so also Dr. Hegde, P.W. 2 and Dr. K.T. Dinshaw, P.W. 4. All the expert witnesses have categorically deposed that for determining whether there was residual cancer while the patient was still undergoing some form of treatment for his cancer, the most common method of determination was clinical examination by the treating doctor and that second biopsy w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cond course, radiation was called Inverted 'Y' and it measured 27 cm. x 46 cm. and covered all the main lymph node chains in upper abdomen, lower abdomen as well as both sides of pelvis and both groin. He also drew a rough sketch showing human figure and the areas which were radiated during first and second course of radiation in different colours. He stated that though the sketch was rough, the areas shown by him in the rough sketch Exh. D3-15 were accurate and as per both the radiation charts. It is pertinent to note that there is absolutely no cross-examination by the plaintiff's Advocate on this aspect. 100. Dr. Kulkarni also gave 5 concrete reasons for not considering second biopsy before he administered second course of radiation to the plaintiff. This portion of the evidence is appearing on page 373 of the Notes of Evidence. A specific question was put by Mr. Merchant, the learned Advocate for defendant No. 3 to his witness as to why he did not consider to have second biopsy of the plaintiff before starting second course of radiation. Dr. Kulkarni gave following answer to this question : "I did not consider repeat biopsy at the stage for the following rea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould certainly lead any doctor to lead to the conclusion that there was a recurrence of cancer only and nothing else. I am, therefore, in agreement with the submission made by Mr. Merchant that there was no negligence on the part of defendant No. 3. 103. After all, what is negligence? Negligence as we all know is breach of duty caused by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. This test for deciding whether there has been a breach of duty or not is laid down in Blyth v. Birmingham Water Works Co., 1856(11) Ex. 78. The maxim "valentine non fit injuria" in its application to doctors' and patients' cases evokes great thought and consideration. The liability of a doctor under criminal and civil law engages serious attention. The matter is indeed very delicate. When can a doctor who has been attending his patient be styled as reckless or negligent is a very difficult matter to decide. However, there are certain tests to find out when the act becomes a negligent one and when it becomes a criminally reck ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of opinion, one of which (since 1953) favored the use of relaxant drugs or manual control as a general practice and the other of which, thinking that the use of these drugs was attended by mortality risks, confined the use of relaxant drugs to cases where there were particular reasons for their use. So, two different views were held among competent professional men on the question whether a patient should be expressly warned about risks of fracture before being treated, or should be left to enquire what the risk was and there was evidence that in cases of mental illness, explanation of risk might well not affect the patient's decision, whether to undergo the treatment. The plaintiff having sued the defendant for negligence in the administering of treatment, viz., in not using relaxant drugs or some form of manual control and in failing to warn himself the risk involved before the treatment was given. Jury was directed in the summing up in this way :-- "1) A doctor is not negligent, if he is acting in accordance with the practice, accepted as proper by a responsible body of medical men, skilled in that particular art, merely because there is a body of such opinion that ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unhappy to see that the plaintiff had responded well to the treatment given by Dr. Kulkarni? He is still very much around, is not bed ridden, is very much mobile, quite active, is able to attend to the present proceedings in the Court for hours together, takes down notes and is actively participating in the proceedings of the Court. 106. If one goes through the entire Notes of Evidence, it will be evident that not a single expert witness has stated that Dr. Kulkarni was negligent in doing what he did. Even the plaintiff's Advocate has not put his case to defendant No. 3, Dr. Kulkarni, when he was very much available in the witness box to the effect that he was negligent. There is no cross-examination on many important points and as already observed earlier, Dr. Kulkarni's evidence has not only remained unchallenged, but has been corroborated by every expert witness. One can also see that Dr. Kulkarni's substantive evidence before the Court is entirely consistent with what he has stated in the written statement. 107. As against this, the plaintiff has changed his story and stance When he came in the witness box, his deposition before the Court has gone many times beyo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lished. The plaintiff was taking treatment from Tata Memorial Hospital from November 1985 till August 1986. In August 1986 pus was drained out from his leg. He was admitted there for about two weeks. He also had problem of swollen penis and pus oozing from penis. He also had Colostomy operation in between. He came and saw Dr. Kulkarni first time after the second course stopped only in the year 1988. Mr. Merchant argued that if there was any excess radiation, radiation burn ought to have been at the site of radiation which is very much visible to the naked eye as per the experts' evidence but that the case papers which are produced before the Court nowhere reveal that there was any such radiation burn. He further argued that the effects of radiation start showing 2 to 4 weeks after commencing the treatment. However, Dr. Kulkarni stated that the plaintiff never came and complained about the radiation therapy treatment if he had any complaint against him. He has explained how radiation doses are fixed differently for different types of cancer and stated how in the plaintiff's case the dose of radiation treatment of plaintiff was fixed. According to him, it is wrong to say that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o say that second course of radiation could not have been or should not have been given to him? No. The plaintiff does not say so. In the plaint, he clearly says that the second course of radiation at the same site can be given as a last resort, to save the life of the patient. Dr. Kulkarni has categorically stated in his evidence that this was precisely the reason for which the second course of radiation was given to the plaintiff. He has also stated on page 354 of his evidence that, "In spite of these possible side effects, treatment of Radiotherapy is still given to cancer patients because we have to control the cancer. If cancer is not controlled, it will progress and kill the patient eventually. These side effects are the acceptable price to pay for potential cure of cancer. Same thinking will hold true to Hodgkins disease. Radiation treatment is quite effective in treatment of Hodgkins disease. It is usually combined with chemotherapy for better result. When the lymphoma is controlled, patient can expect to survive for a longer period." Dr. Kulkarni has denied in para 65 on page 387 of his evidence that second does of radiation was responsible for the multiple illne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ital. He took treatment from one Dr. S.H. Advani who was Medical Oncologist of Tata Memorial Hospital since Dr. Asha Veer was not available. He also had hepatitis B in between had swollen penis and related problems. He also had abscess of the leg and was operated for 1000 cc of pus to drain out. He also took treatment from Rose Petal Nursing Home and admittedly during the entire period from 19th October 1985 till 4th April 1988, the plaintiff never made any complaint to Dr. Kulkarni nor did he meet him. Thus, the plaintiff has failed to have any causal connection between his Fecal Fistula and the alleged negligence of Dr. Kulkarni. A specific question was asked by Mr. Mihir Desai, Advocate for the plaintiff, whether radiation can ever cause Fecal Fistula. The answer given by Dr. Kulkarni to this question was as follows : "The answer is yes and no. Radiation therapy given in proper dosages and with appropriate precautions can never lead to fecal fistula. Any side effects of radiation are apparent within two to three months after end of radiation, as per my earlier deposition. However, if there are any other cause such as infection, abscess formation, injury, surgical procedur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n by defendant No. 3 and Dr. D'Souza of Tata Memorial Hospital nor did he try to see Dr. Hegde who had performed Colostomy operation on the plaintiff to seek his opinion whether anything could be done as far as closure of Colostomy was concerned. For all these years, he suffered consequences of Colostomy operation like using Colostomy bags, cleaning of the same, restriction on taking food when out etc. when it was possible to put an end to all these ailments. Therefore, it will not be unreasonable to say that the plaintiff himself has contributed to all these ailments by not implementing the advice given to him by Dr. Kulkarni and Dr. D'Souza when they were given in good faith. Therefore, the plaintiff will have to blame himself, if he still has to suffer for Colostomy operation which was performed on him as a necessity at that point of time. 119. It is the established principle of law of Torts that "not only must there be damage (injury); it must have been caused by the defendant's fault. Causation has plagued courts and scholars more than any other topic in the law of torts. If there is no causal relation, that puts an end to the plaintiff's case, to impose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of Bombay Hospital are tendered by him which in fact go to show that he has hardly spent ₹ 5,000/-. As far as radiation therapy is concerned, it was entirely free as bills disclose. He had to pay only for one sitting. That amount was ₹ 20/-. One wonders how the plaintiff has arrived at a figure of ₹ 47 lakhs for claiming damages from the defendants. 124. In fact if it was the plaintiff's case that Colostomy bags cost a particular amount, a general question should have been put at least to Dr. Hegde who had performed Colostomy operation on him. In fact a general question about medical expenses could have been asked to Dr. Hegde and Dr. Gautam Sen. It could have asked as to what would be the expenses for closure of Colostomy or in case like the plaintiff, what can be the expenses which the patient like the plaintiff is required to spend for treating his ailment. However, not a single question is put to any of the witnesses to throw any light on the general expenses which a patient like plaintiff has to incur. One, therefore, cannot have even a rough estimate. Cursorily just some figure is prayed for and an impression is given that the said figure can be very ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g tuitions. He had filed pauper petition praying that he be permitted to file the suit as Forma Pauperis under Order XXXIII, Rule 1 of Civil Procedure Code. He parried all questions relating to the income from the Teaching Centre run at his residence where teaching classes are going on as disclosed from the plaintiff's own evidence. When a question was put about the income generated by Teaching Centre, the plaintiff gave a stock answer that all affairs of Teaching Centre are known to his brother Sainath and that he is going to examine Sainath. Thereafter abruptly the plaintiff closed his case and Sainath never entered the witness box. Thereafter the defendants made an application under Order XXXIII, Rule 9 of Civil Procedure Code for depauperised the plaintiff alleging that false and misleading statement made by the plaintiff and that he has suppressed his income form the Coaching Classes and that he also has Shares worth ₹ 12,000/- and share in the immovable property left by his deceased father. It was also submitted by the defendants that the plaintiff has not approached the Court with clean hand and therefore, he be depauperised. This application made by the defendants ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fendant No. 3, tried to extract money from him, tried to defame defendant No. 3 and tried to interfere with the Court of Justice when the matter was sub judice. He has also suppressed from the Court that he had filed a complaint against defendant No. 3 in the Maharashtra Medical Council which came to be dismissed, stating that no prima facie case existed against defendant No. 3. Not a word is there in the plaint about the complaint made by plaintiff to the Maharashtra Medical Council. This conduct of the plaintiff was certainly blameworthy. 130. On merits the plaintiff has failed to prove that there was any negligence on the part of the defendants and, therefore, he is not entitled to claim any damages from them for the reasons given above. The plaintiff's ailment can be attributed only to 'providence' and not to 'negligence' of any of the defendants. It was his destiny to suffer. No person can remain unmoved after coming to know about the sufferings of the plaintiff who is young man in the prime of his youth. There will not be a soul who feel no compassion for this young man; but that does not mean that somebody else should be asked to pay and suffer who are n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be avoided. It is in the best interest of the doctor as well as the patient. There was a time when patient used to have absolute blind faith in his family doctor the Institution which has now almost become extinct. Now is the age of specialisation. Nature of medical profession also has undergone a sea-change as in other professions. There are black sheeps in the noble medical profession also but it should not be forgotten that angels are still very much there in the very same profession. 133. Patients have now become more conscious of their right to know the way they are treated. More transparency is sought by the patients in their treatment process. Medical Science, on the other hand, is a developing and incomplete science and the doctor is not always sure of the outcome of the treatment prescribed by him. Many times the outcome is unpredictable and unfortunate. This is because the response of each human body is different to the same medicine and the same relief cannot be expected from each human body. The doctor does his best but in spite of this, finds himself at the receiving end. It is, therefore, of utmost importance that the relationship of doctor and patient should be fou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut the proposed date of destroying of this record. However, this notice is microscopic and appears in an inconspicuous space in the newspaper. Instead of destroying these records, which are useful to the patients in case of difficulty, they can be preserved in a computer disc. In this computer age, it appears to be an appropriate solution. The doctors also should regularly test their equipments to see whether they give accurate finding. The patients also should be alert and report to the treating doctors at the first distress signal without aggravating their ailments and then blaming the doctors. 136. Signing of the consent form by the patient should not be empty formality and a mechanical exercise. The contents of the consent form should be more detailed and exhaustive. Side effects and consequences of the treatments to be administered to the patient should be explained to him/his nearest relatives in full, so that the patient and his relatives are fully aware and conscious of them. This will be in the interest of both the patient as well as the doctor. 137. Also the practice of some of the patients of the so-called victims of the alleged negligence/malpractices of doctors to fe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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