S K SHARMA Vs. PRAFUL B DESAI

JUDGEMENT

(1.) Appellant was the complainant before the State Commission where his complaint was dismissed as no case of medical negligence could be proved against the respondent.

(2.) Brief facts of the case are that the complainant's wife (since deceased) got a Mammogram done on her on 23.4.1994 whereafter she was advised to consult the respondent Dr. Praful Desai of Tata Memorial Hospital, Mumbai. The deceased who is a qualified Doctor-Gynaecologist-for the first visited the respondent on 11.8.1994 where she was examined by Dr. Patil and was found to be having cancer of Right Breast which was brought to the notice of the respondent. On 12.8.1994, the respondent was referred to Dr. Gopal, Senior Chemotherapist at the Tata Memorial Hospital where after examination, Dr. Gopal started chemotherapy treatment on 17.8.1994 and completed three cycles on 28.9.1994, she was examined by Dr. Gopal, the doctor incharge of Chemotherapy and the respondent on 10.10.1994. Progress was noted as 'very good' and was advised one more cycle of chemotherapy which was done on 9.11.1994. She was again examined by two Senior Doctors of the Hospital, Dr. Srivastava, Senior Radiotherapist and Dr. Dinshaw then, Head of the Department of Radiotherapy and noted that response to chemotherapy of affected Right Breast is good and also noted that-Left Breast is normal. She underwent Radiotherapy in between and regression was found to be excellent. The deceased underwent more cycles of chemotherapy on 27.1.1995 and 9.3.1995. In between she is regularly being examined by other doctors and the respondent. It is at this time that the respondent notices 'degenerating tumour cells'. Surgery of Right Breast (MRM-Modified Radical Mastectomy) is carried out on 27.4.1995 at Breach Candy Hospital by the respondent. Dr. Dinshaw examines the patient on 22.5.1995, who notes 'L-axilla and LS/G note + palpable'. Deceased visits the respondent on 1.6.1995-after which the deceased goes to USA for treatment of cancer. On return to India, she undergoes one more cycle of chemotherapy on 31.8.1995 at Tata Memorial Hospital and is seen by the respondent on 21.9.1995. After that the respondent never saw the deceased even though the deceased was admitted with Tata Memorial Hospital for full cycle to Taxol. Perhaps, the deceased went to USA again and then came back to India and expired on 14.3.1996. Thus alleging medical negligence on the part of the respondent, a complaint was filed by the complainant-the husband of the deceased-before the State Commission who after hearing the parties and perusal of material and evidence on record dismissed the complaint, hence this appeal against the order of the State Commission.

(3.) The argument of the learned Counsel for the appellant is two fold-one that the left breast was left unattended which amounts to negligence; for this he wishes to derive support from the clinical diagnosis done on 11.8.1994 by Dr. Patil at the Tata Memorial Hospital in which Dr. Patil had noted-'L axilla-tiny node' and, secondly, line of treatment adopted by the respondent was not the correct one. What was done was chemotherapy, followed by radiotherapy, followed by surgery. The argument of the learned Counsel for the appellant is that, surgery should have been done immediately after detection of cancer of the breast. For this argument, he wishes to draw support from an article written by the respondent on this subject.