TaxTMI 
TaxTMI 
1998 (4) TMI 570
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....and Rs. 20 lakhs for loss of amenities, mental and physical shock and torture, totalling to Rs. 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....
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....s it reduced. It remained the same. 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 ....
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.... he went deeper into the matter, he realised that the second dose of radiation of 4000 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-....
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....e a duty to take care of the plaintiff. The standard of care required from defendants 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 Rs. 2 lakhs on his medical care and treatment. Each day the plaintiff spends about Rs. 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 Rs. 1 lakh. Besides, for the various treatments, which he had to undergo, he has already spent a further sum of Rs. 1 lakh. For the purpose of surgery, the plaintiff will have to spend at least Rs. 10 lakhs. It is his case that thus quantified damages o....
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....m to Dr. Arvind Kulkarni viz., defendant No. 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 w....
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....ation. He has submitted that the plaintiff 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. ....
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....as further submitted that thereafter the 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 ad....
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....condition during the period of one year. 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 starte....
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.... treatment process of 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 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.....
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....es 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. 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 ....
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....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 occurred on 12th December 1986. The plaintiff has narrated this incident 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, ".....
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....g 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 has averred the same thing. In 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 o....
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....rustees 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 dismissed. 72. The plaintiff in fact, in 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 pla....
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....nd 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 examined him. Even on 12th December 1986 when the 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 Me....
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.... 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 was required to aver the same. It is pointed out that there 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. ....
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....espect 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 defence with a prayer to consequently delete Issue No. 3 based 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 seco....
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....ted '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 abdomen and found some residual cancer in abdomen as shown in the Scan 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 n....
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.... 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 cervical node area, biopsy confirmed as malignant lymphoma, lymphocyte 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 ....
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....fe. 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 showed enlarged lymph nodes, 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. ....
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....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 that during the second 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 bio....
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....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 report and X-ray report would 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 dow....
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....nt 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 two bodies 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, w....
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....ed 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 would be 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 ....
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.... 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 established. 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 ....
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....iation 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 plaintiff want to 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 h....
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....(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 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....
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....;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 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....
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....t of his active life which would have come to Rs. 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 Rs. 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 Bombay Hospital are tendered by him which in fact go to show that he has hardly spent Rs. 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 Rs. 20/-. One wonders how the plaintiff has arrived at a figure of Rs. 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. Heg....
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....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 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 d....
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....s 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 defendant 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....
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.... 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 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 Scienc....
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....s 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 about 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 em....