N VIMALAN vs REGIONAL CANCER CENTRE RCC

-AGGRIEVED and dissatisfied by the order of dismissal of his complaint by the Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram in O. P. No. 65 of 1998 by its order dated 7. 12. 2001 Mr. N. Vimalan, an Advocate by profession has filed this appeal before us. Brief facts of the case :

SON of the complainant-Nidheesh aged 8 years who was suffering from Acute Lumphatic Leukaemia (ALL) and Cardiomyopathy was undergoing treatment at Sree Chithira Thirunal Hospital (SCT ). SCT referred his case to Regional Cancer Centre (RCC), Trivandrum. Opposite party No. 3 - Dr. P. Kusumakumary started Chemotherapy on 21. 9. 1995. As the boy attained remission on 1. 12. 1995, he was discharged on that day and was followed up with maintenance Chemotherapy as per protocol. There was a relapse on 20. 2. 1997. It is alleged by the complainant that opposite parties namely RCC and the doctors functioning there did not take any precautionary measure or conduct bone marrow study to guard against the relapse. No proper advice was given to the complainant for taking the patient to a specialised hospital. After relapse, the child was again admitted on 1. 9. 1997. At that time, Dr. Kusumakumary, Incharge Pediatric Oncology Ward of RCC informed the complainant that Bone Marrow Test would not be successful after the relapse. He was simultaneously being treated for Cardiomyopathy. Chemotherapy was continued but the response was poor. On 1. 9. 1997 at about 7. 00 a. m. the boy was admitted again in the Pediatric Oncology Department with the complaint of loose motion for two days. He was given saline drip and oxygen and his condition improved and sufficient urine was passed and also he took liquid food. It is alleged by the complainants that at about 7. 00 p. m. Dr. Shanavas of RCC injected Mannitol and the boy complained of heart pain which was reported immediately to another doctor by which time portion of Mannitol had already gone into the system and the condition of the boy worsened. It is further alleged that no treatment was given to him and no revival steps were taken. When the boy was in this condition, the doctor prepared a letter to take him to the SCT but before the delivery of the letter the boy expired at 7. 50 p. m. on 2. 9. 1997. The complainant has also alleged that Mannitol injection was administered without conducting necessary electrolyte test and kidney function test. The complainant''s case is that since the death was due to the negligence of the opposite parties, the complainant/father of the child is entitled to be compensated.

The contentions of the opposite party in brief are that the complaint involves complicated questions of law and facts and hence the same is to be relegated to the Civil Court. RCC is an autonomous body which carries out the research in cancer for providing treatment to the needy. The boy was suffering from ALL and Cardiomyopathy which had damaged his left ventricle. Bone Marrow Transplantation (BMT) could be considered only in selected cases where chemotherapy fails to give the result or where the condition of the patient requires immediate BMT for which facility was not available in RCC and the same was brought to the notice of the complainant. The third opposite party-Dr. Kusumakumary has vast experience in Pediatric Oncology. Though the protocol of Chemotherapy consists of four drugs which included Antra Cycline which was withheld since the patient was suffering from Cardiomyopathy and the boy was monitored by a team of doctors and adequate and proper treatment was given to him. The relapse occurred inspite of continued maintenance therapy and inspite of best efforts on the part of Dr. Kusumakumary to complete the intensification therapy, the complainant did not allow the same. Though, it is true that the boy died while undergoing treatment, that the allegation of death was due to improper and inadequate treatment was denied by the opposite parties. There is no prohibition for the parents purchasing the drugs. Complainant''s son was admitted to the Paediatric Oncology Ward on 1. 9. 1997 with a history of fever and loose motion. Saline drip and oxygen was administered but the patient was also suffering from Nerve Paralysis indicating that the disease had spread to the central nervous system. It was noticed at 7. 30 p. m. that the total urine out-put for the entire day was only 200 ml which may lead to complications like renal failure. So, it was decided to administer Mannitol injection. When the boy was restless he was immediately attended by the duty doctor. The complainant wanted as a last resort to shift the child to SCT and it was permitted and the summary sheet of the treatment of the child was prepared. The allegation that the boy expired due to administering of Mannitol injection was denied by the opposite parties. According to them boy had septisemic shock which resulted in his death. Submissions of the learned Counsel for the appellant :

THE learned Counsel submitted that fatal Mannitol injection was administered without consulting the Head of the Department and without taking kidney function test and when the heart problem cropped up and he was not taken to a cardiologist. The boy was suffering from dehydration, vomiting but was taken to SCT only on the next day. The doctors at RCC should have advised BMT after the first relapse. However, he submitted that he does not want to question the qualifications of the doctors who attended the patient. He concluded by saying that the boy died due to their gross negligence. Submissions of the learned Counsel for the respondents : Learned Counsel submitted that the patient suffered from ALL and Cardiomyopathy when he was admitted to RCC on 1. 9. 1997. He was suffering from severe complications due to low BP and septisemic shock. As the urine output was low, to prevent impending renal failure, Mannitol injection was administered.

THE learned Counsel quoted from the chapter on Acute Renal Failure from the British Medical Association''s Encyclopedia wherein it is mentioned that "in acute kidney failure, the most noticeable symptom may be greatly reduced volume of urine. Production of less than 400 ml of urine per day is called oliguria and usually means that waste products are not being cleared effectively from the blood". The learned Counsel also quoted from the British Medical Association''s - Complete Family Health Encylopedia (page 900) where Septicaemia has been described as blood poison and Septisemic Shock has been described as "a highly dangerous condition in which there is tissue damage and a dramatic drop in blood pressure as result of septicaemia (the multiplication of bacteria and the presence of bacterial toxins in the blood)". Findings : We are aware of the health condition of the boy when he was admitted to RCC. The boy was firstly suffering from Acute Lumphatic Leukaemia (ALL ). Leukaemia has been described in Butterworths Medical Dictionary, (second edition) as "a fatal disease of unknown aetiology showing gross disturbances of the leucocytopoietci tissues, first in the bone marrow and then affecting the blood and other organs. Any or several of the types of white blood cells may be involved, thus characterizing the particular leukaemia. Usually in the chronic leukaemias there may be a marked increase in the number of leucocytes, involving the granular, lymphocytic, or monocytic series, and later showing an increasing number of immature white-cell precursors in the marrow and blood; in the acute leukaemias, which are rapidly fatal, there may be a diminished number (leucopenia) or only a slight increase, while later the primitive cells become very prominent in number and immaturity. The chronic sufferers have an expectation of life from one to sixteen years, but the acute cases, which have entirely different aetiologies, show a very bad prognosis, rarely living longer than a few weeks or months irrespective of treatment. "

SECONDLY the boy was suffering from cardiomyopathy which has been described in the same dictionary as "literally disease of the heart muscle, but usually restricted to diffuse myocardial disease not resulting from coronary arterial disease, and sometimes only to disease of unknown aetiology. It presents in a variety of clinical forms, a common one being obstruction to the outflow of the left ventricle (hypertrophic obstructive cardiomyopathy or idiopathic hypertrophic subaortic stenosis ).

IT is extremely difficult to treat the patient who is suffering from these two serious diseases. The main arguments advanced by the learned Counsel for the appellant is that the doctor should not have given Mannitol injection and it has resulted in the complications and secondly, that after the first remission of cancer. BMT should have been advised. As far as complainant''s first contention is concerned there was greatly reduced volume of urine which is a precursor to kidney failure. To save the child from acute renal failure drug Mannitol which has been prescribed was injected. As regards Bone Marrow Transplanation (BMT), there are different versions. In Family Healthy Encylopedia by the British Medical Association (in page 633) it is stated that "if leukaemia relapses after the first remission, bone marrow transplant may be considered. Increasingly, the practice is to offer Bone Marrow Transplantation during the first remission to guard against relapse. On the other hand reliance was made by the opposite party on Pediatric Oncology (Clinical Practice and Procedures) edited by Pinkerton, (second edition page 265) wherein it is stated that "bmt should only be considered in patients with ALL in second or subsequent remissions". Reliance was also made on the Principles and Practice of Pediatric Oncology, (page 439) Third edition by Philip A Pizzo, wherein, it is stated that the, "currently Allpgenic Marrow Transplantation is routinely advocated, particularly for patients in second remission who have an appropriate donor".

So, in a case where two medical texts suggest two different methods of treatment, the doctors are free to adopt one of the two procedures and if they do so the case cannot be categorized as one of medical negligence. The above stand is fortified by the decision of the Apex Court in Achutrao Haribhau Khodwa and Others v. State of Maharashtra and Ors. , I (1996) CLT 532 (SC)= (1996) 2 SCC 634, wherein the Apex Court has held that : "the skill of medical practitioners differs from doctor to doctor. The very nature of the profession is such that there may be more than one course of treatment which may be advisable for treating a patient. Courts would indeed be slow in attributing negligence on the part of a doctor if he has performed his duties to the best of his ability and with due care and caution. Medical opinion may differ with regard to the course of action to be taken by a doctor treating a patient, but as long as a doctor acts in a manner which is acceptable to the medical profession and the Court finds that he has attended on the patient with due care, skill and diligence and if the patient still does not survive or suffers a permanent ailment, it would be difficult to hold the doctor to be guilty of negligence. "

LEARNED Counsel for the appellant was fair enough in not questioning the educational qualifications of the treating doctors. In our view, they are all well qualified. Lastly, the bench-mark for holding medical professional negligent has been laid down by the Apex Court in Jacob Mathew v. State of Punjab and Anr. , III (2005) CPJ 9 (SC)=iii (2005) CCR 9 (SC)=vi (2005) SLT 1=122 (2005) DLT 83 (SC)= (2005) 6 SCC 1, wherein it is held that : "a professional may be held liable for negligence on one of the two findings : either he was not possessed of the requisite skill which he professed to have possessed, or he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. "

On the basis of above ruling it cannot be held that the doctors were negligent in he performance of his duties.

A perusal of the records of the case and the treatment sheets indicates that the treating doctors have passed the Bolam test. Accordingly, we do not find any merit in the appeal. Therefore the appeal is dismissed. However, there shall be no order as to costs. Appeal dismissed.