MADHU SUDANCOMPLAINA Vs. SURESH GUPTA

JUDGEMENT

(1.) These two appeals arise from a common order passed by the State Commission. Complaint had been filed by Mr. Saleemuddin and others (appellant in FA No. 458/1996) against Dr. Sunil Malhotra (appellant in F.A. No. 96/1997), alleging medical negligence on the part of respondent Dr. Sunil Malhotra.

(2.) Very briefly, the facts of the case are that according to the complainant, the patient Alauddin had tumour in his right axilla with supra clavicular lymph modula at right side for which he was examined at Citi Lab, and cytology report dated 27.5.1993 was issued which showed 'FNAC of axillary lymph nodes' was carried out and patient was advised biopsy to ascertain the nature of the lump. After going round to PGI on the advice of a friend, the deceased/complainant met the opposite party Dr. Sunil Malhotra on 18th, 20th and 21st June, 1993. After carrying out preliminary tests, it is alleged that the opposite party Dr. Sunil Malhotra removed the axillary tumour 10" X 8" size plus supraclavicular lymh nodes by an incomplete operation under G.A. condition and sent the complete tumour with adherent skin to the Laboratory for biopsy. Report was received and it was found to be a case of "Non Hodgkin's Lymphoma, Diffuse, Histiocytic High Grade, i.e., fast spreading cancer". This report was received on 26.6.1993. The patient was discharged the next day. The patient visited as an out-patient again on 1st July, wherein he was advised to contact the Oncology Department of AIIMS, New Delhi. Requisite reference was also made. He remained under treatment of AIIMS for almost 6 months but, unfortunately, the patient died on 20.12.1993. It is in these circumstances, a complaint alleging medical negligence was filed initially with the District Forum, Bijnor, which was returned for filing before the Forum having the jurisdiction, hence it was filed before the State Commission of Haryana, Chandigarh, alleging medical negligence, but by increasing the number of complainants from 1 to 11 and also increasing substantially the claim amount. The main plank of the allegation of medical negligence in the complaint related to the factum that it was complete removal of the lump and not a biopsy. The operation was left incomplete resulting in ultimate death of the deceased. It is in these circumstances, alleging medical negligence a complaint was filed before the State Commission, who after hearing the parties including the cross-examination of parties as also perusal of medical literature brought on record, dismissed the complaint as they did not find this case to be a case of medical negligence. Aggrieved by this order, both the parties have filed two separate appeals before us.

(3.) We heard the learned Counsel for both the parties at some length. First Appeal No. 458/1996