Consumer Protection Council, Tamil Nadu & Ors. ... Appellants
Vs
Dr. M.Sundaram & Anr.                                       ... Respondents

PER BALAKRISHNA ERADI, J

The complainants in O.P. No. 206 of 1991 on the file of the State Commission, Tamil Nadu are the Appellants in this appeal. The appeal is directed against the order dated Feb. 15th, 1993 passed by the State Commission whereby the complaint petition filed by the appellants was dismissed on the ground that neither the First Opposite Party nor the Second Opposite Party (two medical doctors against whom the complainants had made allegations of negligence and deficiency in service and had sought recovery of compensation) was guilty of any negligence or deficiency in service. The complaint was instituted by well known consumer organisation of Tamil Nadu by name Consumer Protection Council, Tamil Nadu, Trichy for the benefit of one Mrs. Rajalakshmi. The said lady died on Nov. 13, 1992 during the pendency of the case before the State Commission. In brief the case put forward in the complaint was as follows:

Mrs. Rajalakshmi was admitted in a Nursing Home that is being run by O.P. No. 1 - Dr. Sundaram - on August 1, 1991 with a complaint of vomiting. It is the plea of the complainants that the first opposite party negligently suspected cancer and hence had a bone-marrow sample of the patient taken and sent to the Second Opp. Party - Dr. S.Anuradha - for pathological examination. According to the complainants the second opposite party acting negligently gave a Report on 2-8-1991 stating that the sample showed a deposit of Hodgkin's lymphoma in many areas. The complainants have gone on to state without referring the case to the cancer specialist or taking a second opinion, O.P. No. 1, started administering Endoxan injections to the patient and five doses of the said drug were given to her during the period of five days from 6-8-1991 to 10-8-1991. Thereafter Mrs. Rajalakshmi is said to have been referred by the first O.P. to one doctor Dr. Navaneethakrishnan an E.N.T. specialist, who after examining her on 6-8-1991 opined that no lymph gland was seen. Allegedly becoming unsure of diagnosis and treatment, the first O.P. is said to have sent a slide of the bone-marrow sample to one Dr. Subramaniam an Ontologist during his visit to Trichy. Dr. Subramaniam after seeing the slides is said to have given his Report stating that the clinical picture does not fit with Hodgkin's disease but the patient had Myelopthylic Anemia in the marrow. Mrs. Rajalakshmi was thereafter discharged from the Nursing Home of the First Opposite Party on 14-8-1991. Subsequently, she again came to the first opposite party on 26-8-1991 and though she was admitted as in-patient, she was discharged on 27-8-1991. The first opposite party had advised the patient to go to the Christian Medical College Hospital, Vellore for further treatment of the cancer ailment and had given a letter of introduction to the concerned Head of Department in that Institution. However, the patient did not follow the advice so given by Dr. Sundaram. Instead, she is said to have consulted one Dr. Bosco of City Hospital, Trichy on 5-9-1991 whose diagnosis was that she had renal failure. Subsequently, Mrs. Rajalakshmi underwent surgical transplantation of her kidney on 29-9-1991 at the Kidney Medical Centre, Trichy. In connection with her treatment at that Centre, her bone-marrow samples had been sent for being examined by Pathologists on three occasions in September, 1991 and all the Reports were to the effect that the samples did not show any Hodgkin's deposits.

The complainants have put forward the case that the Opp. Party No. 1 had wrongly diagnosed the ailment of Mrs. Rajalakshmi as Hodgkin's Lymphoma which is a type of cancer and had unnecessarily administered to her injections of Endoxan and it is because of the toxicity of that drug that her kidney cells got destroyed resulting in renal failure for which she had to undergo kidney transplantation, which led her to death. The complainants have also put forward the case that the second opposite party - Dr. S.Anuradha, consulting Pathologist had acted with gross negligence in the matter of examining the bone-marrow samples sent to her for pathological examination and had forwarded a Report to Dr. Sundaram containing the wrong statement that the samples showed a deposit of Hodgkin's Lymphoma in many areas. Both the Opp. Parties filed detailed written statements denying the allegations of negligence, wrong diagnosis, etc. and also refuting strongly the complainants' allegations that the administration of Endoxan injection had led to renal failure. The State Commission has discussed threadbare the entire evidence in the case with a view to determine the main issue arising in the case as to whether the charge of medical negligence levelled against the two opposite parties have been substantiated by the complainants. It found after a careful review of all the materials on record pertaining to the Pathological investigators, diagnosis and the treatment given to Mrs. Rajalakshmi in the Nursing Home of Dr. Sundaram (O.P. No. 1) that instead of acting hastily on the basis of first pathology report received from O.P. No. 2, Dr. Sundaram met the Pathologist, namely, the second Opp. Party and discussed the case with her and in the light of those discussions some more slides with bone-marrow specimens of the patient were sent to her and it was only after study of all those slides which also revealed the same finding, namely, existence of deposit of Hodgkin's Lymphoma in many areas that Dr. Sundaram proceeded to administer to the patient injections of Endoxan of 500 mg, intravenously. We are in complete agreement with the said finding by the State Commission as it is fully supported by the evidence on record. Any prudent consultant physician of the standing of Dr. Sundaram will not delay the commencement of the chemotherapy treatment when repeated examinations of the bone-marrow slides had yielded the report that Hodgkin's deposits were present. It has clearly emerged from the expert evidence available on record that Endoxan is the drug of choice in the treatment of Hodgkin's Lymphoma. No negligence or deficiency in service can therefore be attributed to the first opposite party on the ground of his having given injections of Endoxan to Mrs. Rajalakshmi during the five days from 6-8-91 to 10-8-91.

The allegation of the complainants that it is a result of the administration of Endoxan and the toxicity of the said drug that the renal functions of Mrs. Rajalakshmi became impaired has not been substantiated by any acceptable 
evidence. Exhibit B-1 which is the case summary relating to the treatment of Mrs. Rajalakshmi in the Nursing Home of O.P. No. 1 from 1-8-91 to 14-8-91 discloses that the renal functions of the patient were being periodically monitored and they were found to be perfectly normal. Again when Mrs. Rajalakshmi was admitted to the Nursing Home on 26-8-91, Dr. Sundaram had found after conducting relevant tests that her renal function were fully normal. Except for making a bare assertion that the renal failure that had occurred in the case of Mrs. Rajalakshmi had been caused by the administration of Endoxan injection the complainants have not adduced any acceptable evidence whatever in support of the plea. No medical expert nor even the doctor who had treated Mrs. Rajalakshmi for the renal failure has been examined on the side of the complainants. Such being the state of the evidence, the State Commission was, in our opinion, perfectly right in rejecting the aforesaid plea put forward by the complainants. We are also in total agreement with the finding of the State Commission that no negligence of any kind has been established as against the O.P. No. 2 - Dr. Anuradha - who had conducted the pathological examination of the bone-marrow samples which were sent to her for pathological examination by Dr. Sundaram. A mere assertion by the complainants that the findings incorporated in the reports forwarded by her to Dr. Sundaram were wrong is totally insufficient to hold her guilty of negligence. It is worthy of note that those very slides were still available in her possession and she was willing to part with them for re-examination by any other Pathologist when the case was pending before the State Commission. In spite of it, the complainants did not take any steps to get those slides re-examined by any other Pathologist. In these circumstances we have no hesitation to confirm the finding of the State Commission that the complainants have miserably failed in establishing their charge for negligence as against the second opposite party also.

In the light of the foregoing discussion, we hold that there is absolutely no merit in this appeal and is only to be dismissed. We accordingly dismiss this appeal but, in the circumstances, we do not make any order as to costs.