National Consumer Disputes RedressalDr. Shailesh A. Shah vs Narmadaben Shamalbhai Patel Legal ... on 22 September, 2015NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION  NEW DELHI          FIRST APPEAL NO. 204 OF 2010     (Against the Order dated 29/03/2010 in Complaint No. 25/2001      of the State Commission Gujarat)        1. DR. SHAILESH A. SHAH  1st Floor, Harilkripa Tower,
Near Ladies Hostel,
Ellisebridge  Ahmedabad  Gujarat ...........Appellant(s)  Versus        1. NARMADABEN SHAMALBHAI PATEL  LEGAL HEIRS OF LATE SHAMBALBHAI PATEL,   5/1, H-Colony,
S.M.Road Ellisebridge  Ahmedabad  Gujarat  2. DINESHBHAI SHAMALBHAI PATEL LEGAL HEIRS OF LATE SAMALBHAI KALIDAAS PATEL'S   5/1,H-Colony,S.M.Road Ellisebridge  Ahmedabad  Gujarat  3. HESUMATIBEN SHAMALBHAI PATEL LEGAL HEIRS OF LATE SAMALBHAI KALIDAAS PATEL,   5/1,H-Colony,S.M.Road Ellisebridge  Ahmedabad  Gujarat  4. ARUNBHAI SHAMALBHAI PATEL LEGAL HEIRS OF LATE SAMALBHAI KALIDAS PATEL,   5/1,H-Colony,S.M.Road Ellisebridge  Ahmedabad  Gujarat  5. HITESHBHAI SHAMALBHAI PATEL LEGAL HEIRS OF LATE SAMALBHAI KALIDAS PATEL,   5/1,H-Colony,S.M.Road Ellisebridge  Ahmedabad  Gujarat  6. DR.MADHU SHAILESH SHAH  1st,Floor, Harikripa Tower,Near Ladies Hostel, Ellisbridge  Ahmedabad  Gujarat  7. KIDNEY LINE HEALTHCARE PVT.LTD,  Harikripa Tower, Near Govt. Ladies Hostel, Behind Gujarat College, Ellisebridge  Ahmedabad  Gujarat  8. KIDNEY LINE PATHOLOGY CENTRE  1st, FLoor, Harikripa Tower, Near Ladies Hostel, Ellisebridge  Ahmedabad  Gujarat  9. DR.AMARJEET KAUR  1st, FLoor, Harikripa Tower, Near Ladies Hostel, Ellisebridge  Ahmedabad  Gujarat  10. DR.NARENDRA M. PATEL  1st, FLoor, Harikripa Tower, Near Ladies Hostel, Ellisebridge  Ahmedabad  Gujarat ...........Respondent(s)BEFORE:      HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER    HON'BLE DR. S.M. KANTIKAR, MEMBER 
      For the Appellant     :      Mr. Rohan Swarup, Advocate       For the Respondent      :     Mr. Kapil Kumar, Advocate  
 Dated : 22 Sep 2015  	    ORDER1.      Dr. Shailesh A. Shah underSection 19of the Consumer Protection Act, 1986 challenged the legality, validity and correctness impugned order dated 29.03.2010 passed by the   Gujarat State Consumer Disputes Redressal Commission, Ahmedabad in Complaint No. 25 of 2001.2.      The brief facts of this case are the petitioner/OP/Dr. Shailesh A. Shah, performed prostatectomy operation of Mr. Shamalbhai Kalidas Patel, (since deceased-hereinafter referred as 'the patient') in 1993. He was trouble free after surgery for seven years, then again on 21.7.2000 approached the OP for the complaints of obstruction of urinary flow.  The OP examined him and suspected cancerous tumour of prostate .OP tried to insert a tube in the urinary track (Catheter) but there was obstruction, hence tube was inserted through a hole made in abdominal wall.  Thereafter, on 21.7.2000 OP performed Trans-Urethral Resection of the Prostate ( TURP)  surgery  and  removed the tumor.   It was performed  without doing any biopsy but, OP told about immediate removal of tumor was essential to facilitate urinary flow. The specimen was sent for histopathology (HPE) at Maharishi House, Histopathology and Cytology Centre (Maharshi lab).  The sons of complainant had some doubts, therefore they took one part of sample to Dr. Bhartiben, the Histo and Cytopathologist. The   Maharishi Lab reported it as an  advance stage of cancer whereas Dr.   Bhartiben reported it as  No cancer i.e. benign tumour. Blood   P.S.A.  test level revealed 20 units. The complainant alleged that, OP performed another operation and resected testes (orchiectomy).3.      Alleging medical negligence and wrong treatment given by OP, the complainant filed a complaint before the State Commission, Gujarat.  The State Commission partly allowed the complaint and awarded a sum of Rs.2 lakh as a compensation plus Rs. 50,000/- towards mental agony, Rs. 1 lakh towards treatment and Rs.10,000/- as costs.4.      Aggrieved by the order of State Commission, the petitioner/OP filed this appeal.5.      We have head the learned counsel for both the parties.  Counsel for the petitioner vehemently argued that doctor performed his duty as per standard of practice.  There were no lapses.  The allegations of complainants are not sustainable, the complainant failed to prove his case. There are only averments in the complaint, but  no cogent evidence.In this context, he relied upon the decision rendered inDr. C. P. Sreekumar v. S. Ramanujan2009 (7) SCC 130.  Further, counsel contended that Maharishi Path Laboratory was not impleaded as a party.  Therefore, the entire complaint is baseless, which deserves to be dismissed.6.      Learned counsel for the complainant argued that the OP diagnosed the patient wrongly.  Hence, it was a clear cut evidence of medical negligence.  There is no need for any expert evidence to prove this complaint.7.      We have perused the medical record and relevant evidence on the file.  The pathology laboratory report  is clearly shows that  PSA value on 21.7.2000 was 16 ng/ml and on 4.8.2000,it was 23.  The Histopathology report  is 'Prostatic Adenocarcinoma, Gleason's Grade - III, Gleason's Score - V (III+II).  Therefore, there is no doubt; it was a clear cut case of Carcinoma Prostate.8.      We have perused the Surgical Pathology Book, by Ackerman. The histopathological and tumor marker (PSA) reports clearly establish about correct diagnosis made by OP. The prostatic magligancy are androgen dependent, hence the suitable treatment in such cases will be prostatectomy (TURP) followed by  bilateral orchedectomy.  Therefore, we do not find any negligence or deviation from the standard of practice by the OP doctor.9.      Regarding another report of Dr.Shantiben, reported as "No Cancer". It is quite possible if, the samples are being sent in spilt manner. It is known fact that the TURP specimen consists of multiple grayish bits of variable size. It is evident, from the Gross description in the HPE report in this instant case.  The surgeon cannot be held liable for it.10.    What  constitutes  Medical  Negligence  is  now  well  established  by  a plethora of Rulings of the Honorable Supreme  Court of India and by  several orders of this  Commission.  In the Bolam's case  (Bolam Vs.

 

Frien  Hospital  Management  Committee  (1957)1  WLR  582).  The

 

locus classicus  of the test for the  standard of care in law, required of

 

a doctor, developed from this landmark case. Mr Justice McNair, in

 

his direction to the jury, said:[a  doctor]  is  not  guilty  of  negligence  if  he  has  acted  in

 

accordance  with  the  practice  accepted  as  proper  by  a 

 

responsible body of medical men skilled in that particular art 

 

...Putting it the other way round, a man is not negligent, if he 

 

is acting in accordance with such a practice,   merely because 

 

there is a body of opinion who would take a contrary view.11. We put reliance upon the case ofKusum Sharma Vs.  Batra Hospital, 2010 (1) CPJ 29 SC the Hon'ble Apex Court laid down certain principles, the relevant Para is reproduced as under:"xi. The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients.  The interest and welfare of the patients hae to be paramount for the medical professionals"12.    Thus, the State Commission has committed error in allowing the instant complaint. Accordingly we allow this first appeal and set aside the order of State Commission, with the result complaint hereby stands dismissed.......................J  J.M. MALIK  PRESIDING MEMBER  ......................  DR. S.M. KANTIKAR  MEMBER