Venkatesh Iyer Vs Bombay Hospital Trust and Others - Citation 350947 - Court Judgment

Judgment:
ORDER

Dr. Pratibha Upasani, J.

1. The plaintiff, Mr. Venkatesh Iyer has filed his suit against Bombay Hospital Trust through its Medical Director and Superintendent (defendant Nos. 1 and 2) and Dr. Arvind Kulkarni, erstwhile Head of Department of the Radiation Therapy of Bombay Hospital, claiming a sum of Rs. 47,00,000/- as damages for allegedly treating the plaintiff with negligence. The break up of the claim for special and general damages as given in the particulars of the claim at Annexure II to the plaint and in the prayers is as follows :

Rs. 2 lakhs for medical expenses and Rs. 10 lakhs for future surgery. (These are the claims under the head of Special Damages). Rs. 15 lakhs for loss of future earnings and Rs. 20 lakhs for loss of amenities, mental and physical shock and torture, totalling to Rs. 47 lakhs. Interest is claimed on this amount at the rate of 18% per annum from the date of filing of the suit till payment or realisation.

2. The case of the plaintiff as revealed from the plaint is as follows :

The plaintiff was a healthy person studying in college and also was interested in activities like Karate. He was aspiring to do Hotel Management Course at Bombay.

3. In or about the first week of January 1985, the plaintiff started suffering from fever and complete loss of appetite. There was also growth of a boil near the lower side of his abdomen. The plaintiff was feeling weak. His family doctor Dr. Shah treated him for Malaria but found no improvement. The plaintiff was then hospitalised in Shroff Nursing Home at Borivali where he remained as an indoor patient for a period from 15-1-1985 to 20-1-1985. However, there was no marked improvement. He was then advised to get admitted in a larger hospital for diagnosis and treatment.

4. The plaintiff was, therefore, referred to Bombay Hospital where he got admitted on 21-1-1985. CT Scan, Bone Marrow biopsy, X-Rays, Blood test, Urine and Stool tests, biopsy and other related tests were carried out on the basis of which late Dr. Asha Veer diagnosed the plaintiff as suffering from Hodgkins Lymphoma (Cancer of Lymph Glands) in stage 1-A which is a completely curable stage.

5. The plaintiff was initially treated with 1 course of ABVD Chemotherapy by late Dr. Asha Veer and thereafter she referred him to Dr. Arvind Kulkarni, Radiotherapist of Bombay Hospital for giving radiation to the plaintiff. Dr. Arvind Kulkarni gave the plaintiff radiation treatment in the left lower inguinal region. This treatment lasted from 6-2-1985 to 28-2-1985 during which period, he was given 4000 rads of radiation.

6. After this course of radiation treatment, the plaintiff was discharged from the hospital in the last week of February 1985. He was, however, asked to visit the Hospital every fortnight for Chemotherapy. The plaintiff continued the treatment of Chemotherapy as prescribed. He was informed that his cancer was cured and the treatment being given to him was recuperative and preventive. At the time of his discharge, the plaintiff's appetite had returned to normal and his fever had also gone. His boil near the lower side of the abdomen had already been removed and there was no further growth or recurrence.

7. While the plaintiff was about to take the 10th course of Chemotherapy treatment, he developed a swelling in the left leg. At this time he did not have any fever, loss of appetite, boil or weakness or any other symptom. However, since the swelling was not reducing, he decided to get himself checked by Dr. Asha Veer. She examined him. CT Scan was carried out and thereafter Dr. Veer referred him to Dr. Kulkarni. Dr. Kulkarni examined him but did not carry out any further tests like biopsy, bone marrow biopsy etc. It is, therefore, the contention of the plaintiff in the plaint that Dr. Arvind Kulkarni (defendant No. 3) came to a premature conclusion that the plaintiff had a recurrence of cancer.

8. The plaintiff was again admitted to Bombay Hospital and during the period 7-9-1985 to 5-10-1985, given further radiation of 4000 rads in the lower abdomen in a reduced local area at the instance of Dr. Arvind Kulkarni. Thus, according to the plaintiff, he was given a total radiation of 8000 rads in the same area. Despite this, the swelling in the left leg had neither gone away, nor was it reduced. It remained the same. Since later on Dr. Asha Veer expired, the plaintiff was asked to visit TataMemorial Hospital for check-up. Dr. Arvind Kulkarni issued a letter referring the plaintiff to Dr. S.H. Advani, Oncologist, Tata Memorial Hospital.

9. At the Tata Memorial Centre, a thorough physical check up of the plaintiff was done. The doctors came to the conclusion that the plaintiff had fully recovered from cancer.

10. Within a few months after this second radiation, the plaintiff began to suffer one illness after another which is continued till date. First his penis swelled which gave him excruciating pain for about one month. Thereafter he developed an abscess in his left thigh and had to be hospitalized at Tata Cancer Hospital where 1000 CC of pus was drained out and according to the doctors, he was lucky not to have his leg amputated. Soon after, the plaintiff developed Hepatitis B along with severe stomach ache. Thereafter his irradiated area burst open by itself and fetid fecal matter and mucus started coming out of it. This was diagnosed as Fecal Fistula. Tata Hospital referred the plaintiff to Dr. G.T. Hegde, Cancer Surgeon of Bombay Hospital. On 16th December 1986 an emergency Colostomy was performed on the plaintiff by Dr. Hegde. This operation involves removal of part of the Colon upto the surface of the stomach to facilitate artificial removal of faeces. Thus the plaintiff was left with a big hole in the radiated site from where his inside can be seen and he has to wear plastic bags on the Colostomy portion for the purpose of collecting excretion.

11. On 23rd March 1988, the plaintiff began bleeding profusely from the irradiated hole. On the very day he was admitted to Bombay Hospital where he remained as an indoor patient till 4th April 1988.

12. In June 1989 part of his Colon came out of the opening in the stomach and a major surgery had to be performed on him on 12th June 1989.

13. It is the plaintiff's case that the plaintiff thus continued to have serious problems and the three major problems are as follows ;

(a) Wholly swollen left leg giving him a limp and acute pain and weighing heavily. This swelling, he alleges, will remain for his life time.

(b) Fecal Fistula : A large hole at the radiated site from which there is continuous leakage of mucus. This portion has to be dressed at least 5 times daily.

(c) Colostomy : This causes fecal matter to leak out and the plaintiff has to continuously wear a plastic bag to collect the fecal matter. The plastic bag requires to be disposed of once every day. This bag is expensive and each bag costs about Rs. 60/-.

14. It is the case of the plaintiff that even though he was cured of cancer, he was persistently under some disability or the other. He was vaguely aware that his illness was related to the second radiation. However, he was under the impression that the second radiation was a necessary treatment in order to save his life. This impression he carried till middle of the year 1988. However, Dr. Hegde and Dr. Vyas of Bombay Hospital intimated to him that second radiation was wholly unnecessary. He was given to understand that the real cause of his problems was 8000 rads of radiation which was given to him in the lower abdomen which burnt down the entire area, causing loss of blood supply to the leg, pressure on his intestines and a hole in his body where the radiotherapy was given. Initially the plaintiff was under the impression that he had to suffer this if the cancer was to be cured, but as he went deeper into the matter, he realised that the second dose of radiation of 4000 rads was not at all necessary. According to the plaintiff, the second dose was responsible for the multiple illnesses suffered by the plaintiff. He came to know that the second dose of radiation in the same area is given only as a last resort and that too after a definite determination ofrecurrence of the disease. It is also his case that in order to decide whether there is a recurrence of the disease, various tests like tissue biopsy, bone marrow biopsy and other tests are to be conducted again to confirm recurrence of the disease which were not conducted before the second course of radiation was given to him by Dr. Arvind Kulkarni. According to him, assuming, that there was a recurrence, other medications should have been tried. Thus, according to him, the second dose of radiation was wholly unnecessary and multiple illnesses which the plaintiff has been suffering could have been avoided if due care and caution had been taken by the defendants.

15. The plaintiff's case further is that he was advised that a composite treatment was required in order to conclusively treat him for the post-radiation illnesses and that failure to provide such treatment might prove fatal and would de-capacitate the plaintiff for his entire life. According to the plaintiff, this requires advanced surgical treatment with which the doctors in India are not very familiar. The plaintiff was advised that this procedure was substantially developed abroad, especially in the United Kingdom. The plaintiff, therefore, started correspondence with doctors and reputed Hospitals in the United Kingdom, United States of America and Israel. He received replies from some of them who informed the plaintiff that the cost for such treatment would be substantial.

16. The plaintiff has stated in his plaint that he was trying to confirm whether second dose of radiation was at all necessary or not. He wrote number of letters to foreign doctors. Some of whom did reply to these letters and the plaintiff learnt that further radiation has added complication like oedema and fibrosis. He also got letters from some foreign doctors which apparently wrote that further radiation in the same area after receiving 4000 rads of radiation was not recommended. He also wrote to other Radiologists in India.

17. The plaintiff, his brother and mother also wrote a letter to defendant No. 3 viz., Dr. Arvind Kulkarni placing on record that he was the one who was responsible for negligence which had caused multiple problems for the plaintiff. Defendant No. 3, however, vide his letter dated 22-1-1990 replied to the plaintiff denying the allegations made by the plaintiff and his family members. On 17th January 1989 defendant No. 3 had given a certificate to the plaintiff stating that it was advisable for the plaintiff to consult a surgeon in U.K. as the surgery required to be performed on the plaintiff was complicated. In the year 1990, the plaintiff also wrote some more letters to defendant No. 3 alleging negligence.

18. In short, the plaintiff's case is that second dose of radiation given by Dr. Arvind Kulkarni was totally unnecessary and in any case it should not have been given without fully confirming whether or not there was recurrence of the cancer. He has also submitted that the treatment which the plaintiff requires now to undergo is on an urgent basis for which he has to go abroad and, therefore, he requires considerable finance.

19. According to the plaintiff, the defendants had and have a duty to take care of the plaintiff. The standard of care required from defendants was that of an expert cancer specialist and radiotherapist. By subjecting the plaintiff to the second dose of radiation in the manner sought to have been done, the defendants have committed a breach of their duty to take care and have thus acted in a negligent way towards the plaintiff. The injury and the damage suffered by the plaintiff are directly linked to the negligence of the defendants.

20. It is the case of the plaintiff that due to the negligence of the defendants, the plaintiff has already incurred expenses of Rs. 2 lakhs on his medical care and treatment. Each day the plaintiff spends about Rs. 75/- towards his treatment and that till the surgical operation which is required to be performed on him urgently, he will haveto spend this amount daily. It is further his case that on the daily treatment itself, the plaintiff has spent about Rs. 1 lakh. Besides, for the various treatments, which he had to undergo, he has already spent a further sum of Rs. 1 lakh. For the purpose of surgery, the plaintiff will have to spend at least Rs. 10 lakhs. It is his case that thus quantified damages of Rs. 12 lakhs are due and payable to the plaintiff by the defendants. He has also submitted that the plaintiff has suffered and will suffer incalculable financial loss as he is unable to either study or work. According to him, this situation may continue till he lives and assuming that the plaintiff would have earned an average of Rs. 4,000/- per month, for the rest of his active life, he would have earned about Rs. 15 lakhs during this period. The defendants, therefore, are bound and liable to pay the damages for mental and physical pain caused to him by the negligence of the defendants at Rs. 20 lakhs. Thus a sum of Rs. 47 lakhs by way of damages is claimed by the plaintiff from the defendants.

21. It is the plaintiff's case that he does not have any means of survival and is dependent solely on his brother who is a salaried employee. According to him, he has reached this situation solely because of the negligence of the defendants. The plaintiff has submitted that he has approached various voluntary Organizations for help but they have also expressed their inability to help him in the matter. According to him, the means of treatment and surgery are not developed in India and the plaintiff will have to get himself admitted in an International Hospital, preferably a British Hospital for this treatment and the likely expenses are about Rs. 10 lakhs. Hence the suit.

22. Defendant Nos. 1 and 2 have filed their written statement wherein they have denied the allegations of the plaintiff. At the outset, they have submitted that the trustees of the Bombay Hospital and Medical Research Centre ought to have been joined as they are necessary parties.

23. It is also submitted by defendant Nos. 1 and 2 that the plaintiff's suit is time barred.

24. Further defendant Nos. 1 and 2 have submitted that defendant No. 3 viz., Dr. Arvind Kulkarni is not in the employment of the 1st and 2nd defendants and hence no vicarious liability can be thrust on the 1st defendant.

25. Defendant Nos. 1 and 2 have further submitted that they have learnt certain facts from the 3rd defendant, which they have narrated in their written statement. According to them and as per the facts learnt by them, the plaintiff was suffering from Hodgkins Lymphoma which was proved by biopsy conducted on 31-1-1985. The plaintiff was given Chemotherapy by Dr. Asha Veer and she referred him to Dr. Arvind Kulkarni viz., defendant No. 3 for radiation treatment. Defendant No. 3 administered a dose of 4000 rads in 20 sittings in February 1985 to involved area, after obtaining written consent from the plaintiff and his mother.

26. Defendant Nos. 1 and 2 have further submitted that when the plaintiff later developed swelling of left leg, Dr. Asha Veer referred him back to the 3rd defendant on 5th September 1985 for consideration of further radiation, since there was recurrence of the disease in spite of continued treatment of Chemotherapy. This diagnosis was confirmed with a C.T. Scan. The plaintiff came to the 3rd defendant with a referral note from Dr. Asha Veer. The 3rd defendant started second course of radiation after joint consultation with Dr. Asha Veer since there was no other effective alternative treatment for the recurrent cancer. The second course of radiotherapy was not forced on the plaintiff but was started with his consent after discussing the situation with the family members of the plaintiff.

27. Defendant Nos. 1 and 2 have further submitted in their written statement that the second course of radiation consisted of 4000 rads in 20 sittings which was given to the plaintiff in October 1985. It is the contention of defendant Nos. 1 and 2 that it is an accepted practice to repeat radiotherapy for the second time if the cancer is recurrent and if the tumor is radiosensitive. According to them, Hodgkins Lymphoma is a highly radiosensitive tumor which is primarily treated with radiation for local disease.

28. Defendant Nos. 1 and 2 have staled further that the plaintiff's Oedema and enlarged nodes in the groin before second course of radiation were due to the local nodal recurrence of lymphoma in the groin. Since nodes in groin invaded the surrounding structure, the plaintiff developed skin infiltration and ulceration. The ulceration was not mainly caused by radiation. However, wound-healing is sometimes delayed by local radiotherapy and this was an accepted medical risk.

29. Defendant Nos. 1 and 2 have further stated that the plaintiff had referred the matter to the Maharashtra Medical Council and the Executive Council of the Maharashtra Medical Council by its findings dated 5th December 1991 gave finding that no prima facie case was made out by the plaintiff against defendant No. 3 to conduct inquiry.

30. Defendant Nos. 1 and 2 have denied that the second dose of radiation was given to the plaintiff without carrying out proper tests and without fully confirming whether there was a recurrence or not. All other allegations and contentions are denied by defendant Nos. 1 and 2. They have denied that there was any negligence on their part. They have further stated that they had given reply by their letter dated 30th April 1991 to the plaintiff's notice sent through his Advocate and that in the said reply also defendant Nos. 1 and 2 had mentioned the facts as given to them by defendant No. 3. They have thus denied that they are ever liable to pay Rs. 47 lakhs or any amount whatsoever to the plaintiff and have prayed that the plaintiff's suit be dismissed with costs.

31. Defendant No. 3 viz., Dr. Arvind Kulkarni has also filed his written statement and in the said written statement and the amended written statement he has denied all the allegations made by the plaintiff.

32. It is the contention of defendant No. 3 that the present suit is filed by the plaintiff to pressurise and coerce defendant No. 3 into submitting to the illegal demands of the plaintiff without any cause or justification. He has submitted that the plaintiff was treated well by him at the Bombay Hospital Trust in accordance with settled norms prevalent in the profession and there was no negligence or ill-treatment to the plaintiff.

33. Defendant No. 3 has submitted that the suit is hopelessly barred by limitation. It is his contention that second course of radiation therapy was given to the plaintiff in the month of September 1985 and according to the story of the plaintiff, his alleged illness commenced in or about August 1986 but that the plaintiff ultimately chose to file the suit only in the year 1991 and hence the suit was hopelessly time barred as it was filed beyond the prescribed period of limitation.

34. Defendant No. 3 has further submitted that the suit was also bad for non-joinder of necessary parties. It is submitted that the fistula in the left groin developed after the operation conducted on him on 11th August 1986 at Tata Memorial Hospital and that the fistula was a direct result of said operation. Therefore, according to the contention of defendant No. 3, Tata Hospital also ought to have been made a party to the suit for a complete adjudication of the matter in issue.

35. Defendant No. 3 has then further narrated the relevant facts in his written statement which are as follows :

The plaintiff was admitted to the Bombay Hospital on 21st January 1985 by Dr. E. Borges. Thereafter he was referred to Dr. Gautam Sen either by Dr. Borges or Dr. Asha Veer for the purpose of biopsy and other relevant tests. Thereafter on 6th February 1985 Dr. Gautam Sen referred the plaintiff to defendant No. 3, in his capacity as a radiotherapist for his opinion/consultation as to giving radiotherapy. Defendant No. 3 then examined the plaintiff and concurred with the findings of Dr. Sen and advise of the said referring doctors to start radiotherapy treatment.

36. Defendant No. 3 has further stated that the aforesaid opinion as per the practice of 1st defendant was shown to the referring doctors and on their approval the radiotherapy under defendant No. 3's guidance was administered.

37. Defendant No. 3 has further submitted that after the said course of radio therapy was completed under the supervision of defendant No. 3, he as per the normal practice re-examined the plaintiff and the summary of the treatment was prepared which was given to him for showing the same to the referring doctors for follow-up and further treatment as may be required in the opinion of the referring doctors. After the radiotherapy was administered, defendant No. 3 examined the plaintiff. During administering of the course also the plaintiff was examined by defendant No. 3 and his complaints were looked into and attended to. Thereafter once again the plaintiff was examined and summary of treatment was prepared. Thereafter the job of defendant No. 3 came to an end. Then it was for the referring/admitting doctors to decide, if the patient was an indoor patient, as to when discharge should be given to him.

38. Defendant No. 3 has submitted that from the records it appears that after the first course of radiotherapy was conducted and the summary of treatment given to the patient, the referring doctor, the late Dr. Asha, Veer administered Chemotherapy. Thereafter it appears that during the treatment given by the later Dr. Asha Veer, a C.T. Scan was done on the patient on or about 27th August 1985 by the said referring doctor, viz., Dr. Asha Veer. She found positively that there was a residual cancer present in the plaintiff's body.

39. Defendant No. 3 has further submitted that thereafter the late Dr. Asha Veer once again asked defendant No. 3 to administer radiotherapy on the basis of C.T. Scan done. Thereafter defendant No. 3 examined the plaintiff and checked the C.T. Scan and on the basis of both, concurred with the view of the late Dr. Asha Veer. The plaintiff was examined again by defendant No. 3 and after seeing the C.T. Scan, defendant No. 3 agreed with the recommendation of the late Dr. Asha Veer for giving the second course of radiation therapy which was essential for controlling the growth of cancer and for saving the life of the plaintiff.

40. Defendant No. 3 has submitted that at the time of first treatment the plaintiff and his mother were explained about the side-effects of radiotherapy and treatment was commenced only after his mother consented to the said therapy. On the second occasion no consent letter was obtained in writing in view of the then prevailing practice of the radiotherapy department of the Bombay Hospital. Accordingly on the basis of the opinion of the late Dr. Asha Veer and the C.T. Scan report and after defendant No. 3 physically examined the plaintiff, the second course of radiotherapy was administered. It is also defendant No. 3's contention that in medical terms the two courses of radiation therapy were distinct and could not be termed as one single treatment. According to him, 4000 rads given in the first course and 4000 rads given in the second course could not be added and termed as 8000 rads as alleged by the plaintiff.

41. Defendant No. 3 has further submitted that if the second course of radiation was not given to the plaintiff, it would have inevitably led to the progress of cancer to some more areas, ultimately resulting into loss of his life.

42. Defendant No. 3 has also submitted that from the information given by the plaintiff or his relatives in the History Sheet and on the basis of physical examination of the plaintiff as well as the reports, viz., the C.T. Scan and biopsy report, defendant No. 3 had diagnosed that the plaintiff was suffering from at least stage II-B and possibly even Stage III-B.

43. It is denied by him that Dr. Asha Veer diagnosed the plaintiff as suffering from Hodgkins Lymphoma in stage 1-A as alleged by the plaintiff. According to defendant No. 3, the plaintiff had the disease in left groin, abdominal para-aortic region obscuring and compassing the aortic and interior vena cave. It is denied by defendant No. 3 that the plaintiff was completely cured of cancer. The residual cancer nodes were confirmed by physical examinations and also by C.T. Scan and in the aforestated circumstances, repetition of biopsy was considered not necessary specially in view of the fact that biopsy in a previously radiated skin area was risky and not carried out as a matter of routine, since the biopsy wound in radiated area did not heal easily. The initial biopsy which was carried out had proved the disease viz., Hodgkins disease (Malignant Lymphoma). Defendant No. 3 has denied that he only had cursory examination or that he came to a premature conclusion that the plaintiff had a recurrence without carrying out any tests as alleged.

44. It is further submitted by defendant No. 3 that the abscess allegedly developed in August 1986, one full year after the radiation treatment and that the same was not immediately after the radiation treatment and therefore, it could not be said that it was due to radiation. But according to defendant No. 3, the abscess can happen on account of local infection or improper or unhygienic condition during the period of one year. It is also submitted by him that during this period, he was under the treatment of his physician and the abscess was operated and drained out at Tata Memorial Hospital on 11th August 1986.

45. Defendant No. 3 has thus denied that the plaintiff's illness were by reason of or related to second radiation treatment given by defendant No. 3. It is his submission that the second radiation treatment was necessary on account of recurrence of cancer and was also recommended by Dr. Asha Veer.

46. Defendant No. 3 has submitted that when the plaintiff approached him for getting a certificate for proceeding abroad for further treatment and surgery, he issued the said certificate to help the plaintiff. It is further stated by defendant No. 3 that subsequently, however, the plaintiff started approaching defendant No. 3 for money which was not possible for him to give. According to him, the plaintiff was treated well and to the best of his ability and the facilities available at Bombay Hospital. It is submitted by defendant No. 3 that the plaintiff was treated free of charge by the Bombay Hospital. However, the plaintiff after the year 1989 started threatening defendant No. 3 and others. It is submitted that the complaint made to the Maharashtra Medical Council was dismissed by the said Council holding that there was no prima facie case against defendant No. 3 for malpractice. It is also alleged by defendant No. 3 that the plaintiff resorted to malicious publicity in newspapers and made false and scandalous imputations and accusations against the defendants.

47. It is denied by defendant No. 3 that on account of his negligence the plaintiff had incurred Rs. 2 lakhs on his medical care or treatment as alleged by him. He has alsonot admitted that the plaintiff spends every day Rs. 75/- for his treatment as alleged by him. He has also not admitted that the plaintiff spent lakh of rupees on his daily treatment. He has also not admitted that the plaintiff is required to spend Rs. 10 lakhs for surgery as alleged by him. The claim of damages for Rs. 12 lakhs or any other sum also is refuted by defendant No. 3. It is submitted by him that he is not bound and liable to pay any amount to the plaintiff and there was no negligence on his part to treat the patient. According to him, the suit filed by the plaintiff is false, frivolous, vexatious and is liable to be dismissed with costs.

48. Initially the plaintiff filed a pauper petition being Petition No. 16 of 1991 which was allowed by the Prothonotary & Senior Master. The pauper petition was then converted into a suit which was expedited by the then Hon'ble Chief Justice Shri M.K. Mookerjee. Issue were framed on 13th October 1996 by this Court. One additional issue also came to be framed on 22nd July 1997. After all the pre-trial formalities were completed, recording of evidence commenced from 22nd July 1997. Recording of evidence was completed on 31st March 1998. The arguments were concluded on 20th April 1998.

49. The plaintiff (P.W. 1) examined himself and three expert witnesses, all of whom are specialists in their own field. P.W. 2 was Dr. G.T. Hegde who is Cancer Specialist. P.W. 3 was Dr. Gautam Sen who is Hon. Professor of Surgery, Grant Medical College, G.T. Hospital and also, a Cancer Specialist. P.W. 4 was Dr. Ketan A. Dinshaw, Radiation Oncologist and Director of Tata Memorial Centre. P.W. 5 was Dr. Inder Talwar who is also Radiologist of Bombay Hospital. All of them except Dr. Dinshaw were involved at some stage or the other, with the treatment process of the plaintiff. All of them are highly qualified persons in their respective fields.

50. Defendant Nos. 1 and 2 did not examine any witnesses.

51. Defendant No. 3, Dr. Arvind Kulkarni, examined only himself.

52. Arguments were concluded on 20th April 1998 and judgment is being dictated in the open Court from today.

53. Issues as framed and settled by this Court are reproduced below. After marshaling the entire evidence, and after duly appreciating the same, I have recorded my findings against each issue. Reasons for arriving for those findings are given in the foregoing paragraphs:

ISSUESFINDINGS

1.Isthe suit bared by limitation?Yes.2.Isthe suit bad for non joinder of necessary parties as alleged inparagraph No. 1 (b) of written statement of defendant No- 3 ?

Yes.3.Whetherdefendant Nos. 1 and 2 or any of them can be held vicariously liablefor the acts of defendant No. 3 ?

Withdrawn byconsent.4.Doesthe plaint disclose no cause of action against defendant No. 1 and 2or any one of them as alleged by them in their written statement ?

Yes. plaint doesnot disclose cause of action against defendant Nos. 1 and 2 or any one ofthem.

5.Doesthe plaintiff prove that he has suffered any loss or damage asdirect result of negligence of defendant Nos. 1, 2 and 3 or any oneof them as alleged by the plaintiff in paragraph 25 of the plaint ?

In the negative.6.Whetherthe plaintiff was informed that his cancer had been cured and the treatment beinggiven to him was for prevention as alleged in paragraph 8 of theplaint ?

Not proved.7.Whetherdue to the second radiation, the plaintiff began to suffer illnessas alleged by him in paragraph 12 of the plaint ?

Not proved.8.Doesthe plaintiff prove that the defendant No. 3 came to the prematureconclusion that the plaintiff had recurrence of the cancer asalleged in paragraph 9 of the plaint ?

In the negative.9.Whetherthe second does of radiation was given without confirming that theplaintiff had recurrence of the disease as alleged by him in theplaint ?

In the negative.10.Whetherthe plaintiff's multiple illness were by reason of or related to thesecond radiation treatment as alleged by him in the plaint ?

Not proved.11.Doesthe plaintiff prove that by giving a second dose of radiation in themanner ought to have been given, defendant No. 3 has commuted breachof his duty to lake care and thus acted in negligent way as allegedby him in paragraph 25 of the plaint ?

In the negative.12.Doesthe plaintiff prove that he has suffered any injury due to thesecond dose of radiation as alleged by him in paragraph 25 of theplaint ?

In the negative.13.Ifanswer to issue No. 12 is in the affirmative, does the plaintiffprove that as the injury or damage was suffered by the plaintiff hasa direct link with the negligence on the part of defendant No. 3 asalleged by him in paragraph 25 of the plaint ?

Does not survivesince answer to issue No. 12 is in the negative.

14.Doesthe plaintiff prove that due to negligence of defendant No. 3, theplaintiff has incurred expenses to the tune of rupees two lakhs on his medicalcare and treatment as alleged in paragraph 25 of the plaint ?

Not proved.15.Doesthe plaintiff prove that he had spent a sum of rupees one lakh forhis day to day treatment as alleged by him in para 26 of the plaint ?

In the negative.16.Doesthe plaintiff prove that he is entitled to recover from thedefendant Nos. 1 , 2 and 3 jointly and severally a sum of RupeesTwelve Lakhs as alleged by him in paragraph 26 of the plaint ?

In the negative.17.Doesthe plaintiff prove that he has sufferedmentaland physical pain due to the negligence of defendant No. 3 asalleged by him in paragraph 26 of the plaint ?

In the negative.18.Doesthe plaintiff prove that he is required to undergo a surgery onurgent basis abroad and the costs thereof would be at least rupeesten lakhs as alleged by him in paragraph 29 of the plaint ?

In the negative.19Doesthe plaintiff prove that he is entitled to claim a sum of rupeestwenty lakhs as alleged by him in paragraph 26 of the plaint ?

In the negative.19-ADoesthe plaintiff prove that he is entitled to the reliefs as prayed ?In the negative.20.Whatdecree ?As per order below.21.What order ?As per order below.

REASONS

ISSUE NO. 1 :

54. It is the contention of all the defendants that the suit is hopelessly barred by limitation. It is, therefore, submitted by them that the suit has to be dismissed.

55. Mr. Ketan Parikh appearing for defendant Nos. 1 and 2 and Mr. Merchant appearing for defendant No. 3 have substantiated their contention with historical narration of relevant facts on this point. For this purpose, they have drawn the Court's attention to the plaint and the examination-in-chief of the plaintiff, so also relevant case papers of Bombay Hospital dating back to December 1986.

56. The plaintiff's grievance is that the second course of radiation was unnecessary since he was cured of his cancer, that it was given without confirming that there was a recurrence of cancer and without carrying out necessary tests to confirm and that all these ailments mentioned by him on page 7 para 15 of the plaint were solely because of the second dose of radiation. There is no dispute about the fact that the plaintiff had cancer. There is also no dispute about first course of radiation. The bone of contention is only the second course of radiation.

57. According to the plaintiff, three major problems developed because of the second course of radiation which are narrated by him in para 15 of the plaint. They are as follows:

a) Wholly swollen left leg.

b) Fecal fistula.

c) Colostomy.

58. It is important to keep in mind the dates, duration and the time gap between the two courses of radiation. The duration of the first course of radiation was from 6-2-1985 to 28-2-1985. 4000 rads of radiation were given in 20 sittings during this period. The duration of the second course of radiation was from 7-9-1985 to 5-10-1985. During this period also 4000 rads of radiation was given in 20 sittings. The time gap between these two courses was of more than 6 months.

59. Coming to the three major ailments mentioned by the plaintiff in para 15 of his plaint, as far as the complaint of swollen leg is concerned, it was there even before the second course of radiation was administered to him. The plaintiff has stated in para 9 of the plaint that while he was to take the 10th Course of Chemotherapy treatment, he developed a swelling in left leg. In fact because of this swelling of the left leg, the Chemotherapy treatment had to be stopped. Dr. Asha Veer referred him to Dr. Kulkarni with referral note (which is part of Exh. D1-10 collectively) specifically writing in it that there was a residual disease in abdomen with oedema in left leg. She also suggested that Dr. Kulkarni should consider radiation of the inverted Y field. This referral note is dated 5th September 1985.

60. As far as the problem of Fecal Fistula is concerned, the said problem/injury/ damage occurred on 12th December 1986. The plaintiff has narrated this incident in para 20 on page 11 of the notes of evidence. Thereafter Colostomy operation was performed by Dr. G.T. Hegde on 16th December 1996. History Sheet dated 16th December 1986 is a part of Exh. CC. collectively. In this history sheet, there is a mention of, 'excessive radiation'. Now as per the deposition of the plaintiff's witness No. 2 Dr. Hegde, the history sheet is prepared as per narration of the patient himself. This is what he has stated in para 81 on page 239 of his deposition. To quote his exact words, 'History sheet is the one wherein, the patient's history regarding the disease and its symptom is recorded, as narrated by the patient'. Again in para 101 on page 255 of the notes of evidence he has reiterated that, '.....History sheet is the narration given by the patient himself and recorded as narrated by the patient'.

61. Mr. Ketan Parikh and Mr. Merchant appearing for defendants vehemently argued that since the history sheet was narrated by the plaintiff himself as stated by his own witness, it is quite evident that the plaintiff had knowledge that his alleged condition was because of the so-called 'excessive radiation'. Both learned Counsel submitted that not only the alleged injury took place in December 1986, but that the plaintiff had knowledge of the said injury. They submitted that the limitation started running from the period December 1986 when the alleged injury not only occurred, but the plaintiff also had the knowledge of the same and the period of limitation came to an end in December 1989 after a period of three years as per Article 113 of the Limitation Act, 1963 which is the corresponding clause to Article 36 of the Indian Limitation Act, 1908 which is a residual clause. According to them right to sue accrued in December 1986 and the suit ought to have been filed within a period of three years thereafter and the right to sue came to an end in December 1989 and, therefore, the suit filed by the plaintiff for the alleged injury in the year 1991 is obviously beyond the prescribed period of limitation and hence liable to be dismissed.

62. Mr. Merchant appearing for defendant No. 3 relied upon the decision of Supreme Court in Jaylaxmi Salt Works (P) Ltd. v. State of Gujarat : [1994]3SCR866 , so also Kripa Ram v. Kunwar Bahadur : AIR1932All256 and Jagannath Marwari v. Kalidas Raha reported in A.I.R. 1929 Pat 245 to substantiate his arguments that this suit is governed by Article 36 of the Indian Limitation Act, 1908 (now corresponding Article 113 of the Limitation Act, 1963) and limitation runs notfrom the date of misfeasance or malfeasance, but from the time the injury results. In the present case at hand the alleged injury obviously resulted on 16th December 1996 and, therefore, limitation began to run from that date and came to an end in 1989. I agree with the submission made by Mr. Merchant.

63. Counsel for the defendants also brought to the attention of the Court the innovation/trick adopted by the plaintiff to bring his suit within the period of limitation. They highlighted the newly added sentence in writing by pen in para 33 of the plaint to plug the loop hole. The newly added sentence in para 33 in the otherwise type written plaint reads as follows:

'Which fact he came to know in or about May 1988'.

64. In para 16 of the plaint, the plaintiff has narrated that it was only in the mid-1988 that Dr. Hegde and Dr. Vyas of Bombay Hospital intimated that the second radiation was wholly unnecessary. In his evidence also he has averred the same thing. In para 26 on page 16 of the notes of evidence he has only referred generally to the alleged conversation between Dr. Hegde and Dr. Vyas of Bombay Hospital. He stated that he was told by Dr. Hegde and Dr. Vyas of Bombay Hospital that his present condition was due to excessive radiation. Counsel for the defendants vehemently opposed to record the statement of the plaintiff on the ground of hearsay. On this, the Court made a specific query to the plaintiff's Advocate whether the plaintiff was going to examine Dr. Hegde and Dr. Vyas, whereupon Mr. Mihir Desai appearing for the plaintiff stated that he was certainly going to examine Dr. Hegde. On this statement being made by the plaintiff's Advocate, statement of the plaintiff was recorded for the time being observing that evidentiary value of the same would be decided at the time of arguments.

65. Specific reference to the alleged conversation between the plaintiff and Dr. Hegde and Dr. Vyas was again made by the plaintiff in para 31 on page 19 of the notes of evidence. This deposition of the plaintiff was recorded on the adjourned date. On that day in his examination-in-chief he stated that the said conversation took place at the end of May 1988.

66. In para 64 on page 229 this is what Dr. Hegde (P.W. 2) has stated with reference to the 'conversation episode', 'I do not remember whether Dr. Vyas examined Mr. Iyer in my presence. I am referring to Dr. J.J. Vyas. I cannot say whether there was any discussion with Dr. J.J. Vyas with regard to the plaintiff unless there is a reference to Dr. J.J. Vyas in the case papers'.

67. Again in the middle of page 256 of the Notes of Evidence, Dr. Hegde stated that he did not remember whether Dr. Vyas and Mr. Iyer (plaintiff) had any meeting with Dr. Hegde.

68. Thus, the story of the plaintiff about any conversation taking place between himself, Dr. Hegde and Dr. Vyas whereby he allegedly learnt that second course of radiation was unnecessary is not corroborated by his own witness viz., Dr. G.T. Hegde. As far as Dr. Vyas is concerned, he is not brought to the witness box at all. Thus, the plaintiff's deposition on this point is not believable and has to be rejected. This appears to be an afterthought and ploy of the plaintiff to bring his suit within the period of limitation. Attempt is made by the plaintiff to approach the Court with a story that his knowledge about the alleged excessive radiation was only from May 1988 and, therefore, his suit, filed in 1991 was within the prescribed period of limitation. This attempt, however, has been proved to be unsuccessful. I, therefore, hold, for the above reasons, that the plaintiff's suit is barred by limitation. Issue No. 1 is, therefore, answered in the affirmative.

ISSUE NO. 2 :

69. It is contended by the defendants that the suit is bad for non-joinder of necessary parties and hence it should be dismissed on that count alone.

70. Defendant Nos. 1 and 2 have submitted that the suit filed against the Bombay Hospital Trust through its Medical Director and Superintendent, who happen to be the employees of the said trust, without joining all the trustees of the said Bombay Hospital Trust is bad and has to be dismissed.

71. Defendant No. 3 also has taken an additional plea that Tata Memorial Hospital also was a necessary party to this suit as the plaintiff has taken treatment from Tata Memorial Hospital and from various doctors of Tata Memorial Hospital and hence the suit is bad lor non-joinder of necessary parties and has to be dismissed.

72. The plaintiff in fact, in para 2 of the plaint, has averred that the plaintiff is not aware of the names of the trustees and as and when he became aware of the same, he would join the trustees as defendants. Thereafter M/s. Kanga & Co. who are Solicitors for defendant Nos. 1 and 2 communicated to the Advocate of the plaintiff, the names of trustees of Bombay Hospital Trust. There is clear cut admission on this point which appears in para 113 on page 121 of the plaintiff's cross-examination. Thus, in spite of having come to know the names of all the trustees of the Bombay Hospital Trust, the plaintiff did not take any step by way of amendment to join the trustees to the proceedings as defendants. This was certainly a procedural lacuna of a serious nature on the part of the plaintiff and he has to face the consequences for the same. He cannot blame defendant Nos. 1 and 2 because they did inform the names of the trustees to the plaintiff for enabling him to take prompt necessary steps in the matter. It was, however, the inaction on the part of the plaintiff himself who failed to take necessary steps.

73. As rightly contended by defendant No. 3, even Tata Memorial Hospital was a necessary party to the suit. The plaintiff has stated at the end of para 10 and in para 11 of the plaint that he was referred to Tata Memorial Hospital where his thorough physical check-up was done. Operation was also performed on him at Tata Memorial Hospital on 11th August 1986. In his deposition also the plaintiff has stated in para 14 that he was referred by Dr. Kulkarni to Dr. S.H. Advani of Tata Memorial Hospital. Thereafter in para 15 again the plaintiff has narrated about his meeting with Dr. Advani and the joint discussion along with his other team of doctors. Dr. Advani was the Head of the Department of Oncology of Tata Memorial Hospital. The plaintiff has stated that after the joint discussion, he was told by this team of doctors of Tata Memorial Hospital headed by Dr. Advani that the plaintiff should stop all further treatment and should remain under observation. He has also deposed that they asked him to come to Tata Memorial Hospital every month for regular check up. One Dr. R. Gopal was one of those doctors and the plaintiff used to go to him for his check up every month.

74. In the month of August 1986 when the plaintiff started feeling mild pain in upper portion of his left thigh and when the pain became unbearable for him, he went to Tata Memorial Hospital and met Dr. Gopal who after examining him, told him that there was formation of pus in his left thigh and advised that the pus should be drained out. Accordingly one Dr. Deshpande of Tata Memorial Hospital drained out the pus from his left thigh. After this was done, the plaintiff was admitted in Tata Memorial Hospital and got discharged after two weeks. This is all narrated by the plaintiff in para 16 on page 10 of his deposition.

75. The plaintiff has again stated in para 17 on page 11 of the Notes of Evidence that from 12th October 1986, he started getting mild pain in his right leg and so on thenext day, he went and saw Dr. Gopal at Tata Memorial Hospital, who examined him and referred him to Dr. Kopikar. Dr. Kopikar took out flesh from the right upper thigh of the plaintiff and sent it to the pathological department of Tata Memorial Hospital. Dr. Kopikar told him that the result of the test was negative.

76. Thereafter on 6th November 1986, the plaintiff again went and saw Dr. Gopal at Tata Memorial Hospital as he found that his penis was swollen. Dr. Gopal examined him. Even on 12th December 1986 when the problem of Fecal Fistula started, the plaintiff was first taken to Tata Memorial Hospital in an ambulance where Dr. Tapan Saikia examined him and it was Dr. Tapan Saikia who gave him a letter and asked him to see Dr. G.T. Hegde of Bombay Hospital.

77. From all these narration of ihe plaintiff in his Examination-in-Chief, it will be clear that Tata Memorial Hospital played crucial role in treating the plaintiff's various ailments. The plaintiff has made frequent references to Dr. Advani, Dr. Tapan Saikia, Dr. Gopal, Dr. Raghu. Dr. D'Souza etc. From his evidence it appears that a crucial role has been played by doctors of Tata Memorial Hospital as far as advice to the plaintiff and his treatment was concerned. He was admitted in Tata Memorial Hospital for quite some time. He was operated upon in Tata Memorial Hospital. He was frequently visiting Tata Memorial Hospital for being examined by Tata Memorial Hospital doctors. A team of doctors headed by Dr. Advani was allegedly discussing the problems faced by the plaintiff. We do not know what was the discussion. We do not know what was the treatment given to him. Some case papers are in the proceedings, but no doctor from Tata Memorial Hospital who was involved in the treatment process of the plaintiff has been examined by the plaintiff. Dr. K.T. Dinshaw (P.W. 4) was examined by the plaintiff but she was examined only as a Specialist of Radiotherapy. She was not any way and at any stage involved in the treatment process of the plaintiff. There is much grey area with respect to the plaintiffs treatment in Tata Memorial Hospital. Had Tata Memorial Hospital been made a party, much crucial evidence would have come before the Court and adjudication on many of the issues before the Court would have been easier. Therefore, it has to be said that it was a lapse on the part of the plaintiff not to join Tata Memorial Hospital to the suit.

78. Thus, in view of the foregoing discussion, I hold that not joining the Trustees of the Bombay Hospital Trust and also Tata Memorial Hospital is a serious lacuna and the suit certainly is bad for non-joinder of necessary parties. Issue No. 2 is, therefore, answered in the affirmative.

ISSUE NO. 3 :

79. This issue has been deleted by consent.

ISSUE NO. 4 :

80. Defence Counsel have submitted that the plaint does not at all disclose at any place or aver as to how and in what manner defendant Nos. 1 and 2 are liable to pay any damages to the plaintiff. It is averred by them that it is not set out in the plaint as to what duty of care was owed by defendant Nos. 1 and 2 to the plaintiff and how and in what manner they committed breach of that alleged duty. According to them, the plaint merely sets out certain acts on the part of defendant No. 3, Dr. Arvind Kulkarni, and alleges that those acts were of negligence and the plaint then proceeds to state that the defendants are jointly and severely liable for negligence. It is submitted that no averment whatsoever is made anywhere in the plaint, connecting defendant Nos. 1 and 2 to the alleged acts of negligence committed by defendant No. 3 and thus no cause of action is disclosed against defendant Nos. 1 and 2. It is,therefore, submitted by defendant Nos. 1 and 2 that the suit ought to be dismissed as against them on this ground alone.

81. It is submitted by defendant Nos. 1 and 2 that if it is the case of the plaintiff that the Hospital was the employer of defendant No. 3, Dr. Kulkarni, and was, therefore, vicariously liable, then the plaintiff was required to aver the same. It is pointed out that there is no such averment in the plaint and, therefore, the plaintiff cannot be permitted to argue the same. It is also pointed out by defendant Nos. 1 and 2 that there is no evidence on record to show that defendant No. 3 was an employee of the Hospital. It is in fact stated by the plaintiff in his deposition that he is not aware of the relationship between the Bombay Hospital and defendant No. 3.

82. It is further pointed out by defendant Nos. 1 and 2 that Medical Director and Superintendent of the Bombay Hospital are neither personally involved, even remotely, in the treatment of the plaintiff, nor are they the employers of defendant No. 3 and under these circumstances, the suit against defendant Nos. 1 and 2 has to be dismissed.

83. Mr. Ketan Parikh argued that no suit can lie against 'Bombay Hospital Trust' as such, because the trust is not a legal entity and that the trust is merely an obligation attached to the property settled on trust and that the suit has to be filed against all the trustees of the trust and that if that is not done, no decree can be passed in the suit against the trustees or the trust and the suit has to be dismissed.

84. The point about not joining the trustees to the suit in spite of intimation sent by the Solicitors of defendant Nos. 1 and 2 to the plaintiff's Advocate and the consequence thereof has already been discussed while answering Issue No. 2.

85. If one even goes cursorily through the plaint, it becomes evident that what Mr. Ketan Parikh has submitted has substance. No nexus is shown by the plaintiff either in his plaint or in his substantive evidence before the Court as to how defendant Nos. 1 and 2 are liable for any alleged negligence of defendant No. 3. In fact even in the prayer clause, the plaintiff has prayed that the defendants or any, or some of them be ordered and decreed to pay to the plaintiff, a sum of Rs. 47 lakhs as and by way of damages. The Counsel for the defendants, therefore, submitted that it appears that the plaintiff himself is not sure as to which of the defendants is liable to pay to the plaintiff and against whom exactly the plaintiff has got grievance. It is submitted that the plaintiff has failed to pin point the alleged guilt on any of the defendants and that he does not know for sure as to whom to blame. It is submitted that the wording in prayer Clause (c) will throw light on the perplexed mind of the plaintiff and the contention in his grounds on this aspect. I find substance in this submission. Indeed, nothing has been done by the plaintiff to show any nexus between defendant Nos. 1 and 2 and the alleged acts of defendant Nos. 3. They have been just joined as defendants without explaining how suit can be filed against defendants Nos. 1 and 2 when his grievance is against defendant No. 3 and if defendants Nos. 1 and 2 are parties, what is his grievance against defendant No. 1 and 2, whether defendant No. 1, 2 and 3 are jointly and severely liable or what at all is the claim of the plaintiff against these defendants. The plaintiff has not even used the words 'joint and severe responsibility' with respect to the defendants, nor has he said anything about vicarious liability of defendant Nos. 1 and 2. Defendant Nos. 1 and 2 in their written statement have, without prejudice to their other contentions, taken up the defence of various liability. After the plaintiff closed his case, defendant Nos. 1 and 2 came up with an application for amendment of the written statement to delete this defence with a prayer to consequently delete Issue No. 3 based upon this defence. This application of defendant Nos. 1 and 2 wasallowed by consent and subsequently Issue No. 3 came to be deleted accordingly. Under these circumstances, no cause of action is disclosed against defendant Nos. 1 and 2. Hence Issue No. 4 is answered accordingly and it is held that the plaint does not disclose any cause of action against defendant Nos. 1 and 2 or any of them.

ISSUES NOS. 5. 6. 8. 9. 11 AND 12 :

86. The plaintiff's case, in a nut shell, is that though he admittedly and certainly was suffering from cancer (Hodgkins Lymphoma), he was cured of it, that his treating Medical Oncologist late Dr. Asha Veer told him so, and hence second course of radiation was not at all necessary and that the said second course of radiation was administered to him by defendant No. 3, Dr. Kulkarni, without bothering to conduct the necessary tests, essentially the biopsy and thus the conclusion of Dr. Kulkarni to administer the second dose of radiotherapy to the plaintiff was premature one and amounted to negligence. It is also his case that the second course of radiation should not have been given to him at the same place.

87. Now, let us examine the plaintiff's case on the basis of the evidence produced by him and comparing the same with the one with which he has approached this Court. The first and foremost thing that comes to our mind is whether the plaintiff is able to substantiate that his cancer was at stage 1, and that after the combined dose of Chemotherapy and first course of Radiotherapy, he was completely cured of it. According to him, it was late Dr. Asha Veer who told him so. Since Dr. Asha Veer is no more, she could not be examined. The point is that there is also no document whatsoever which reflects this opinion of Dr. Asha Veer. On the contrary, there is a referral note dated 5-9-1985 (Exh. D1-10 collectively) given by Dr. Asha Veer to Dr. Arvind Kulkarni which categorically mentions that there was a 'residual disease in abdomen', requesting him to consider radiation in Inverted 'Y' field.

88. This referral note given by Dr. Asha Veer dated 5-9-1985 is of considerable importance. It will be, therefore, desirable to reproduce the contents of the said note. This note reads as follows :

'Adv. by Dr. Asha Veer.

Refer to Radiation Medicine.

Dear Dr. Kulkarni,

Referring a c/o. Hodgkins disease He has recd. 3 cycles of chemotherapy, but as yet has residual disease in abdomen. (CT Scan done) with oedema of L leg.

Kindly consider Inverted 'Y' field radiation. Thanks,Sd/-Dr. Asha Veer.'

89. This note was shown to the plaintiff who agreed with the contents of the said note except saying that he had received more than 3 cycles of radiotherapy. After receiving this note from Dr. Asha Veer, Dr. Kulkarni wrote to her by his note dated 7-9-1985 referring to the recurrence of the Hodgkins disease of the plaintiff which was causing obstructive oedema in left lower leg and also writing about second course of palliative radiotherapy in the Inverted 'Y' portion. Thus, as per the suggestion given by Dr. Asha Veer with which Dr. Kulkarni agreed, second course of radiation was commenced from 7-9-1985 which was completed on 5-10-1985.

90. When the plaintiff had come to Dr. Kulkarni on 7-9-1985, he had brought all the reports, CT scan, X-rays along with referral note from Dr. Asha Veer. Dr. Kulkarni hasdeposed in para 41 on page 366 of his deposition that Dr. Asha Veer had repeated CT Scan of abdomen and found some residual cancer in abdomen as shown in the Scan report. She thought that the plaintiff's cancer was not responding satisfactorily to the Chemotherapy treatment given so far by her. She wanted Dr. Kulkarni to see the plaintiff and give radiation treatment as second course for control of the cancer. When Dr. Kulkarni saw the plaintiff, he also got previous record from his department. He went through all the record, referral note and then studied the Scan and other reports. He then examined the patient clinically. He agreed with the recommendation of Dr. Asha Veer that he had a residual cancer producing swelling of left leg and that this needed second course of radiation therapy since Dr. Asha Veer was not happy with the result of the Chemotherapy so far. After studying the scan report and after his clinical examination of the plaintiff, Dr. Kulkarni also concluded that the plaintiff had some lymph nodes in the left groin suggesting recurrence of cancer in that area. He then discussed the whole matter with the plaintiff and his relatives who were present at that time. He explained to them recommendation of Dr. Asha Veer and himself for second course of radiation since there was no other alternative treatment left at that time. He also explained to them the possible benefits and possible side effects of radiation treatment as per his usual practice. Dr. Kulkarni deposed that Dr. Asha Veer had also stated to him that after the second course of radiation was complete, she would then consider further chemotherapy. Dr. Kulkarni then proceeded to explain what was the meaning of Inverted V portal. He stated that Inverted 'Y' portal covers all the abdominal and pelvic lymph node chains present in the para-aortic area, parricidal area and both sides of pelvic lymph node chain. Dr. Kulkarni then drew rough sketch for easy understanding of the Court and the Advocates of both sides. In that rough sketch, Inverted 'Y' was marked with pink highlighter.

91. Dr. Kulkarni further deposed that initially he planned to give a dose of 3000 rads in 15 sittings. Exh. D1-11 are the notes dated 7-9-1985 in his own handwriting on the back of history sheet. His diagram indicated his clinical findings showing fullness in the upper abdomen and some nodes in the left groin which have also suggested, according to him, the findings corroborated on the second CT-Scan report. He proceeded to explain that by the word 'fullness' he meant palpation of some swelling in certain parts where it should not be normally there.

92. Dr. Kulkarni was shown in the Court Exh. H and H-1 viz., CT-Scan Films and CT-Scan report dated 27-8-1985. There were five scan films marked as I, II, III and IV and one plate seemed to be missing. He then stated that after seeing these CT-Scan films, these scan films showed multiple soft tissue shadows in abdomen specially, in para-aortic area suggestive of enlarged lymph nodes. The full scan plates of groin and upper thigh were not present in that group of films. However, on the available scan sections, there appeared to be some soft tissue shadow in the left groin suggestive of lymph node enlargement.

93. It is pertinent to note that the very same CT-Scan report along with other reports of the plaintiff were shown to P.W. 4 Dr. Dinshaw, who stated as follows :

'On a very quick review of the papers and without clinically examining the patient, I would maintain that this 20 years old male with a history of fever and generalised lymph nodes in the abdomen and pelvis and possibly in the left upper cervical node area, biopsy confirmed as malignant lymphoma, lymphocyte large non-cleaved cell type would be staged as III-B malignant lymphoma. In such a situation, his management would be on the same lines with systemic chemotherapy and involved radiation therapy. I would have also given the same treatment as is revealed from the reports which I have gone through quickly.'

After seeing CT-Scan report before the second course of radiation was given she commented that they indicated a few enlarged retro-peritoneal and pelvic lymph nodes, Further she stated that in the CT-Scan of August 1985 thee were residual nodes which were slightly enlarged. She further stated that if it was considered that local residual disease was present, further second line chemotherapy and perhaps radiation therapy would still remain the alternative treatments to offer this patient (plaintiff) and that the second line treatment could only be defined by the treating physician at that time after full evaluation and investigation taking into account all the parameters on merit for deciding further treatment.

94. The evidence of Dr. Dinshaw who is an independent witness, who is not involved with the treatment process of the plaintiff at any stage, who is renowned in her field of Radiotherapy clinches the issue and it is thus clear that in the plaintiff's case, the only course open to treat the residual cancer was the combination treatment of Chemotherapy and Radiotherapy. She did not say that the second course of radiation at the same site could never but simply stated that it was to be given with extreme caution. She also gave opinion about Dr. Arvind Kulkarni as a Radiotherapist having outstanding reputation as a Senior Radiation Oncologist at Bombay Hospital.

95. P.W. 5 Dr. Inder Talwar, Radiologist from Bombay Hospital, after going through the second CT-Scan report (Exh. H-1) stated that it indicated that there were smelt diseased lymph nodes.

96. Even the plaintiff himself, while denying that there was any recurrence of cancer has stated that 'at the most the cancer was persistent'. In fact whether there was 'recurrence' of cancer or there was a 'residual' cancer pales into background as far as the case of the plaintiff is concerned, once it is established that there was an 'existence' of cancer in his body. What thereafter is required to be done is how to treat that cancer and how to control it. Dr. Kulkarni, as per the accepted practice prevalent for treating Hodgkins lymphoma, with consultation with the plaintiff's treating Oncologist, administered second course of radiation as 'palliative' treatment. The fact that 'palliative' treatment was given itself goes to show that there was a residual cancer because Dr. Hegde has stated in para 14 on page 204 of his evidence that, 'the intent of treatment to a cancer patient can be either curative or palliative. In the curative treatment, the intention is to cure the patient in terms of adding quantity and quality to the life whereas, palliative treatment is to alleviate the pain and improve the quality of life. Palliative treatment does not mean that the patient will not be cured, but the chances of curing the patient are very less.'

97. It is true that it has come in evidence of Dr. Gautam Sen, P.W. 3 that cancer is not the only cause of enlarged lymph nodes and that other causes of enlarged lymph nodes are infection, auto immune disease apart from cancer.

98. It was the contention of Mr. Mihir Desai, appearing for the plaintiff that just because the second CT-Scan showed enlarged lymph nodes, it does not mean that there was a recurrence of cancer and that biopsy ought to have been done to confirm this finding. Mr. Ketan Parikh appearing for defendant Nos. 1 and 2 and Mr. Merchant appearing for defendant No. 3, however, submitted that Dr. Gautam Sen has also stated on page 277 of his Notes of Evidence that 'when it is an established fact that the person is suffering from a cancer, and the lymph nodes are found enlarged at the beginning of the treatment, if they persist or if they reappear again, in that particularsituation, then one must think seriously in terms of either residual disease, i.e. the cancer still persists or it has recurred. 'It is argued vehemently both by Mr. Merchant and Mr. Parikh that second biopsy was not necessary. Their argument was based on the depositions given by Dr. Gautam Sen, P.W. 3 so also Dr. Hegde, P.W. 2 and Dr. K.T. Dinshaw, P.W. 4. All the expert witnesses have categorically deposed that for determining whether there was residual cancer while the patient was still undergoing some form of treatment for his cancer, the most common method of determination was clinical examination by the treating doctor and that second biopsy was not at all necessary. Dr. Hegde has categorically stated that to ascertain how the tumor was responding, biopsy (for the second time) was not necessary and only clinical impression of the treating doctor and relevant investigations were required to be done. P.W. 3 Dr. Gautam Sen also has deposed similarly. A question was put to him by defendants' Advocate as to whether once a patient is diagnosed as suffering from Hodgkins disease and treatment of the disease has begun, and one wants to ascertain the response of the body to the treatment, was second biopsy mandatory for that purpose and the answer to this question was that it was certainly not mandalory. He further added that once the Hodgkins disease is diagnosed correctly and staged correctly as well, the treatment started accordingly one does not carry out second biopsy in the middle of the course. P.W. 4 Dr. Dinshaw also has said that usually the clinical judgment of the treating doctor is relevant to decide whether there is a residual cancer or not .

99. In the present case at hand, it is an admitted position that surgical biopsy and bone marrow biopsy had initially done which confirmed the malignancy of the plaintiff's disease. It was either stage I, stage II or stage III-B; But it certainly required combination of Chemotherapy and Radiotherapy. Thereafter Dr. Asha Veer started with Chemotherapy and when 10th cycle was about to start, the plaintiff had the swelling of the leg. Therefore, she stopped Chemotherapy treatment and referred the plaintiff for second course of radiation to Dr. Kulkarni stating that she would consider Chemotherapy after the second radiation course was over. Thus, the treatment of the plaintiff was continuing. It was not complete. It was, therefore, argued by the defendants' Counsel that at this stage there was absolutely no need of second biopsy. They submitted that CT-Scan and CT-Scan reports were there, X-ray and X-ray reports were there. There was clinical examination by Dr. Asha Veer as well as by Dr. Kulkarni who confirmed the existence of the cancer in the plaintiff's body. Dr. Kulkarni stated in para 59 on page 382 of the Notes of Evidence that the fields of the first course of radiation and second course of radiation were basically different although there was small area of partially overlapping in the left lower abdomen. He stated that during the second course, radiation was called Inverted 'Y' and it measured 27 cm. x 46 cm. and covered all the main lymph node chains in upper abdomen, lower abdomen as well as both sides of pelvis and both groin. He also drew a rough sketch showing human figure and the areas which were radiated during first and second course of radiation in different colours. He stated that though the sketch was rough, the areas shown by him in the rough sketch Exh. D3-15 were accurate and as per both the radiation charts. It is pertinent to note that there is absolutely no cross-examination by the plaintiff's Advocate on this aspect.

100. Dr. Kulkarni also gave 5 concrete reasons for not considering second biopsy before he administered second course of radiation to the plaintiff. This portion of the evidence is appearing on page 373 of the Notes of Evidence. A specific question was put by Mr. Merchant, the learned Advocate for defendant No. 3 to his witness as towhy he did not consider to have second biopsy of the plaintiff before starting second course of radiation. Dr. Kulkarni gave following answer to this question :

'I did not consider repeat biopsy at the stage for the following reasons:

1) presence of cancer i.e. malignant lymphoma was proved by the initial biopsy done on 26-1-85.

2) The plaintiff was still under the initial combination cancer treatment with Chemotherapy, so he had not completed his cancer treatment till that time. He was not cured of his cancer on 7-9-85.

3) Dr. Asha Veer had confirmed that the plaintiff had residual cancer which was not responding well to her chemotherapy treatment.

4) On my clinical examination and study of the CT-Scan films on 7-9-85, I also came to the conclusion that plaintiff had residual and recurrent cancer at that time. So, there was no doubt in my mind about the active cancer disease in the plaintiff. Hence, I did not find repeat biopsy necessary at that stage.

5) Furthermore, any injuries, surgical cuts and fresh biopsy wounds in previously radiated area are risky, since the wounds do not heal so easily after such injuries. There was no need to subject the plaintiff to this additional risk since there was no doubt about the diagnosis of active cancer in my mind.'

101. It is again very significant to note that there is absolutely no cross-examination on this aspect by the plaintiff's Advocate. Therefore, whatever reasons defendant No. 3 Dr. Kulkarni has given for not conducting second biopsy before administering second dose of radiation have to be accepted as they go unchallenged. Not only this, but the other expert witnesses have corroborated and have lent support to what Dr. Kulkarni has stated. There is absolutely a consensus on this issue. It, therefore, has to be said that there is no lapse on the part of Dr. Kulkarni in avoiding biopsy before he administered second course of radiation to the plaintiff.

102. It also should be kept in mind that the plaintiff's biopsy wound had not healed. There was oozing from the wound. Dr. Hegde has stated in his deposition that the fact that the first biopsy wound had not healed completely, itself showed that the disease (cancer) was not cured. Second CT-Scan plates and reports do show enlargement of lymph nodes. When a patient like plaintiff having a history of malignant disease like cancer which spreads very fast in the body and when the existence of disease lymph nodes is afflicted with cancer was proved by first biopsy, the presence of the enlarged lymph nodes as reflected in the second CT - Scan report and X-ray report would certainly lead any doctor to lead to the conclusion that there was a recurrence of cancer only and nothing else. I am, therefore, in agreement with the submission made by Mr. Merchant that there was no negligence on the part of defendant No. 3.

103. After all, what is negligence? Negligence as we all know is breach of duty caused by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. This test for deciding whether there has been a breach of duty or not is laid down in Blyth v. Birmingham Water Works Co., 1856(11) Ex. 78. The maxim 'valentine non fit injuria' in its application to doctors' and patients' cases evokes great thought and consideration. The liability of a doctor under criminal and civil law engages serious attention. The matter is indeed very delicate. When can a doctor who has been attending his patient bestyled as reckless or negligent is a very difficult matter to decide. However, there are certain tests to find out when the act becomes a negligent one and when it becomes a criminally reckless and negligent act. The experience of a doctor and the exigency are of some guidance to find out whether the doctor could have been negligent. The degree of care and attention cannot be weighed in golden scale nor can be defined or any hard and fast principle be laid down. It varies with different cases. In Halsbury's Law of England, (Third Edition, Vol. 26, page 17), it is said, 'The duties which a doctor owes to his patient are clear. A person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge tor the purpose. Such a person when consulted by a patient owes him certain duties, viz., a duty of care in deciding whether to undertake the case, a duty of care of deciding what treatment to give or a duty of care in the administration of that treatment. A breach of any of those duties gives a right of action for negligence to the patient. The practitioner must bring !o his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of skill and competence and judged in the light of the particular circumstances o! each case is what law requires.'

104. Mr. Merchant relied upon a catena of English cases decided by House of Lords to substantiate his argument that if the doctor has adopted a practice of medicine in treating patient, he cannot be called negligent even though there are others who do not agree with the line of treatment relied by him. He especially relied on Bolam v. Friern Hospital Management Committee (1957)2 All E.R. 118. In this case the plaintiff, who was suffering from mental illness was advised by a consultant, attached to the defendant's hospital to undergo electro convulsive therapy. He signed a form of consent to the treatment but was not warned of the risk of fracture involved. Even that risk was small viz. of the order of one in ten thousands The plaintiff sustained fracture on second occasion during this treatment. No relaxant drugs or manual control (save for support of the lower jaw) were used, but a male nurse stood on each side of the treatment-couch throughout the treatment. Use of relaxant drugs would have admittedly excluded the risk of fracture. Among those skilled in the profession and experienced in this form of therapy, however, there were two bodies of opinion, one of which (since 1953) favored the use of relaxant drugs or manual control as a general practice and the other of which, thinking that the use of these drugs was attended by mortality risks, confined the use of relaxant drugs to cases where there were particular reasons for their use. So, two different views were held among competent professional men on the question whether a patient should be expressly warned about risks of fracture before being treated, or should be left to enquire what the risk was and there was evidence that in cases of mental illness, explanation of risk might well not affect the patient's decision, whether to undergo the treatment. The plaintiff having sued the defendant for negligence in the administering of treatment, viz., in not using relaxant drugs or some form of manual control and in failing to warn himself the risk involved before the treatment was given. Jury was directed in the summing up in this way :--

'1) A doctor is not negligent, if he is acting in accordance with the practice, accepted as proper by a responsible body of medical men, skilled in that particular art, merely because there is a body of such opinion that takes a contrary view.

2) That the jury might well think that when a doctor was dealing with mentally sick man and had a strong belief that his only hope of cure was submission to electro convulsive therapy, the doctor could not be criticisedin believing the dangers involved in the treatment to be minimal, he did not stress them to the patient.

3) In order to recover damages for failure to give warning the plaintiff must show not only that the failure was due to negligence but also that if he had been warned, he would not have consented to the treatment. The Court also observed that, 'At the same time, that does not mean that a medical man can obstinately and pigheadedly carry on with some old techniques if it has been proved to be contrary to whole of the informed medical opinion. Otherwise you might get men to-day saying 'I do not believe in an antiseptic... I am going to continue to do my surgery in the way it was done in the eighteenth century.

That clearly would be wrong.'

The jury returned the verdict for the defendant.

105. This case cited by Mr. Merchant is very much relevant as far as the facts of the case in hand are concerned. The plaintiff's case is that defendant No. 3 came to a hasty decision and administered second course of radiation without confirming that there was recurrence/residual cancer and thus was guilty of negligence. Defendant No. 3's case is that what he did was the accepted practice and that he did not go beyond that. It was the accepted practice or rather it is an accepted practice that in the case of Hodgkins Lymphoma, combination of Chemotherapy and Radiotherapy is the only treatment. All the expert witnesses have concurred with this They have also concurred with this that once the plaintiff's treatment is continued at pe; the finding of the first biopsy and the line of treatment is decided, the second biopsy is not mandatory. Dr. Kulkarni stated that if he had not given second course of radiation, the plaintiff's cancer would have spread further as it is a fast-growing disease and that it would have taken toll of his life. He has also said that the outcome of his treatment is very much there to see that the plaintiff is very much alive even 13 years after the treatment started and that they were all happy to see that. One wonders whether and how this will amount to negligence. Who would be unhappy to see that the plaintiff had responded well to the treatment given by Dr. Kulkarni? He is still very much around, is not bed ridden, is very much mobile, quite active, is able to attend to the present proceedings in the Court for hours together, takes down notes and is actively participating in the proceedings of the Court.

106. If one goes through the entire Notes of Evidence, it will be evident that not a single expert witness has stated that Dr. Kulkarni was negligent in doing what he did. Even the plaintiff's Advocate has not put his case to defendant No. 3, Dr. Kulkarni, when he was very much available in the witness box to the effect that he was negligent. There is no cross-examination on many important points and as already observed earlier, Dr. Kulkarni's evidence has not only remained unchallenged, but has been corroborated by every expert witness. One can also see that Dr. Kulkarni's substantive evidence before the Court is entirely consistent with what he has stated in the written statement.

107. As against this, the plaintiff has changed his story and stance When he came in the witness box, his deposition before the Court has gone many times beyond what he has pleaded in the plaint, e.g. in para 16 of the plaint this is what the plaintiff's case is about the second course of radiation. He has stated. 'The plaintiff was vaguely aware that his illnesses were related to the second radistion. However, he was under the impression that the second radiation was a necessary treatment in order to save his life..... It was the second dose which was responsible for the multiple illnessessuffered by the plaintiff. He came to know that the second dose of radiation in the same area is given only as a last resort and that too after a definite determination of recurrence.....' It means that the plaintiff's case is not that second dose of radiationcan never be given. He says that it can be given but that it can be given only as a last resort to save life. However, before the Court, the tenor of his entire evidence is that the second course of radiation can never be given. This is the tune he has been singing all along in his substantive evidence. In fact, saving of life was precisely the reason for which second dose of radiation was given by defendant No. 3 to the plaintiff. This was given indeed as a last resort. There was a residual cancer and the combination treatment of Chemotherapy and Radiotherapy as per the accepted practice of profession was the only treatment for the plaintiff's disease who was diagnosed for Hodgkins Lymphoma. Dr. Kulkarni in his deposition has so stated which is duly corroborated by other expert witnesses.

108. The plaintiff has also failed to prove the causal connection between his ailment and the alleged negligence of the defendants. It is an admitted fact that second course of radiation was completed on 5th October 1985. Thereafter the first ailment of the plaintiff viz., Fecal Fistula occurred on 12th December 1986. This time gap, according to Mr. Merchant appearing for defendant No. 3 is of immense significance. He submitted that this time gap is of 1 year 2 months and 7 days to be exact. In between he was treated by various doctors viz., doctors from Tata Memorial Hospital, doctors from Rose Petal Nursing Home etc. What treatment was given to him during this time is not before the Court. Mr. Merchant argued that during this period he was not in the control or management of Dr. Kulkarni and the alleged negligence of Dr. Kulkarni, therefore, is not at all established. The plaintiff was taking treatment from Tata Memorial Hospital from November 1985 till August 1986. In August 1986 pus was drained out from his leg. He was admitted there for about two weeks. He also had problem of swollen penis and pus oozing from penis. He also had Colostomy operation in between. He came and saw Dr. Kulkarni first time after the second course stopped only in the year 1988. Mr. Merchant argued that if there was any excess radiation, radiation burn ought to have been at the site of radiation which is very much visible to the naked eye as per the experts' evidence but that the case papers which are produced before the Court nowhere reveal that there was any such radiation burn. He further argued that the effects of radiation start showing 2 to 4 weeks after commencing the treatment. However, Dr. Kulkarni stated that the plaintiff never came and complained about the radiation therapy treatment if he had any complaint against him. He has explained how radiation doses are fixed differently for different types of cancer and stated how in the plaintiff's case the dose of radiation treatment of plaintiff was fixed. According to him, it is wrong to say that 8000 rads of radiation were given to the plaintiff by adding 4000 rads of the first course and 4000 rads of the second course. He stated that there was a gap of 6 months between these two courses. Even the plaintiff has admitted that both the courses were 'separate and distinct'.

109. Thus, it will be seen that defendant No. 3 has taken all the care and precaution while administering second course of radiation to the plaintiff; doses were fixed by him after due application of mind and the said course was given in 20 sittings by administering 200 rads at each sitting. Again there is no cross-examination leave aside effective cross-examination on this aspect also. In fact the entire evidence of defendant No. 3 goes unchallenged and has to be accepted. It has to be accepted not only because it appears to be honest, sincere, truthful and scientific, but other expert witnesses have also whole heartedly and unambiguously supported what defendantNo. 3 has stated. Defendant No. 3 was last to enter the witness box, but already the plaintiff had failed to prove his case through his witnesses. There is nothing to disbelieve what defendant No. 3 has stated. On the contrary, because of the shifting stand of the plaintiff, his evidence has to be carefully scrutinised keeping in view what basically he has pleaded in the plaint and how he has deviated from the same.

110. In view of the above mentioned discussion, the conclusion is inescapable that the plaintiff has failed to prove any negligence on the part of the defendants. Issues Nos. 5, 6, 8 9, 11 and 12, therefore, answered in the negative.

ISSUE NOS. 7 AND 10:

111. It is plaintiff's case that his ailments are because of the second course of radiation given to him. It is further his case that the second course of radiation was not at all necessary as he was cured of his disease. I have analysed and marshalled the evidence which points to the conclusive finding that this was not the case; that second CT-Scan report, X-ray reports, clinical findings, referral note given by Dr. Asha Veer, the effect of not healing of biopsy wound etc. all go to prove conclusively and cumulatively that the plaintiff's case is unfounded and not substantiated by these documents. Assuming for a moment, for the sake of argument, that some of his ailments are because of second course of radiation, does the plaintiff want to say that second course of radiation could not have been or should not have been given to him? No. The plaintiff does not say so. In the plaint, he clearly says that the second course of radiation at the same site can be given as a last resort, to save the life of the patient. Dr. Kulkarni has categorically stated in his evidence that this was precisely the reason for which the second course of radiation was given to the plaintiff. He has also stated on page 354 of his evidence that, 'In spite of these possible side effects, treatment of Radiotherapy is still given to cancer patients because we have to control the cancer. If cancer is not controlled, it will progress and kill the patient eventually. These side effects are the acceptable price to pay for potential cure of cancer. Same thinking will hold true to Hodgkins disease. Radiation treatment is quite effective in treatment of Hodgkins disease. It is usually combined with chemotherapy for better result. When the lymphoma is controlled, patient can expect to survive for a longer period.' Dr. Kulkarni has denied in para 65 on page 387 of his evidence that second does of radiation was responsible for the multiple illnesses suffered by the plaintiff. He has further added that, 'As I have already stated that second dose of radiation was necessary to save the plaintiff's life and this was started only after the plaintiff and his relatives agreed for the same. 1 agree that the second dose of radiation in the same area is given only as a last resort and that too, after a definite determination of recurrence. However, that is exactly the reason for giving second course of radiation to the plaintiff, as per joint decision of Dr. Asha Veer and myself, as a last resort and the result of this decision is for all of us to see today, 13 years after the treatment, the plaintiff is alive and we are happy about our treatment decision.'

112. As far as the complaint about swollen leg is concerned, admittedly the ailment of swollen leg was there before the second course of radiation commenced. There is no grievance whatsoever about first course of radiation. It has come in evidence that when first course of radiation was complete and Chemotherapy treatment was going on which was supervised by late Dr. Asha Veer, the plaintiff developed swollen leg before the commencement of the 10th dose of Chemotherapy. Thus, it is evident that the complaint of swollen leg cannot be connected or linked to the second course of radiation.

113. As far as complaint of Fecal Fistula is concerned, Dr. Hegde in para 101 on page 254 of Notes of Evidence has stated that Fecal Fistula can occur due to other reasonsalso even though radiation and chemotherapy is not given to that patient. This statement of Dr. Hegde clinches the issue of problem of Fecal Fistula suffered by the plaintiff. Dr. Hegde also has given in his Examination-in-Chief at page 217, the cause for plaintiff's Fecal Fistula. This is what he has stated, 'This (plaintiff's) Fecal Fistula was a result of infection caused by the leakage of stools from the large intestine into the soft tissues causing an infection and slowly, forming an abscess and opening or bursting open into the exterior through the skin forming an abnormal continuous passage of stools.'

114. The plaintiff's Fecal Fistula occurred on 12th December 1986 and the second course of radiation was over on 5th October 1985. As already pointed out, in between the plaintiff had taken the treatment from various other doctors. He went to Tata Memorial Hospital. He took treatment from one Dr. S.H. Advani who was Medical Oncologist of Tata Memorial Hospital since Dr. Asha Veer was not available. He also had hepatitis B in between had swollen penis and related problems. He also had abscess of the leg and was operated for 1000 cc of pus to drain out. He also took treatment from Rose Petal Nursing Home and admittedly during the entire period from 19th October 1985 till 4th April 1988, the plaintiff never made any complaint to Dr. Kulkarni nor did he meet him. Thus, the plaintiff has failed to have any causal connection between his Fecal Fistula and the alleged negligence of Dr. Kulkarni. A specific question was asked by Mr. Mihir Desai, Advocate for the plaintiff, whether radiation can ever cause Fecal Fistula. The answer given by Dr. Kulkarni to this question was as follows :

'The answer is yes and no. Radiation therapy given in proper dosages and withappropriate precautions can never lead to fecal fistula. Any side effectsof radiation are apparent within two to three months after end of radiation,as per my earlier deposition. However, if there are any other cause suchas infection, abscess formation, injury, surgical procedures in suchradiated area, fecal fistula can form due to these last mentioned causes.'

It is apparent that in the plaintiff's case all these causes were very much present and,therefore, it is not possible to link Fecal Fistula to the radiation alone. As such theplaintiff's immunity also had gone down and the chances of infection in such cases arealways more as was deposed by all the expert witnesses.

115. As far as the operation of Colostomy is concerned, it was performed by Dr. Hegde to improve the quality of life of the plaintiff. To give chance to the Fecal Fistula to get dried up, operation of Colostomy was a surgical devise to divert the passage of stools from the Fecal Fistula. Again the plaintiff has failed to link performing of this operation with the second course of radiation and the alleged negligence of defendant No. 3.

116. Colostomy was done by Dr. Hegde to save the plaintiff from embarrassment as it was not possible for him to pass stools in the normal way. Dr. Hegde performed a transverse Colostomy on the plaintiff under local anaesthesia whereby a planned opening was done in large intestine proximal to the Fecal Fistula and brought outside on to the skin of the anterior abdominal wall and the opening is secured to the skin by stitches. After the Colostomy, the passage of stools almost stopped through the Fecal Fistula.

117. It is also stated by Dr. Hegde that there was permanent cure of Colostomy and the operation though difficult was not uncommon in India. Dr. Sen, P.W. 3 has also expressed similar suggestions. He has said that there are expert doctors in India who can perform this type of operation and that there is no need to go abroad. Dr. Hegdestated that the plaintiff never came to him to seek his opinion. It has come in evidence that Dr. D'Souza of Tata Memorial Hospital also suggested closure of Colostomy but the plaintiff stated that the suggestion made by Dr. D'Souza did not inspire confidence in him. Defendant No. 3 himself suggested to the plaintiff when he came to see him that the plaintiff should go and seek some plastic surgery for closure of Colostomy.

118. From this evidence it is clear that not only there is not causal connection between the Colostomy operation undergone by the plaintiff and the alleged negligence of defendant No. 3 but that the plaintiff has not paid any heed to the advice given by defendant No. 3 and Dr. D'Souza of Tata Memorial Hospital nor did he try to see Dr. Hegde who had performed Colostomy operation on the plaintiff to seek his opinion whether anything could be done as far as closure of Colostomy was concerned. For all these years, he suffered consequences of Colostomy operation like using Colostomy bags, cleaning of the same, restriction on taking food when out etc. when it was possible to put an end to all these ailments. Therefore, it will not be unreasonable to say that the plaintiff himself has contributed to all these ailments by not implementing the advice given to him by Dr. Kulkarni and Dr. D'Souza when they were given in good faith. Therefore, the plaintiff will have to blame himself, if he still has to suffer for Colostomy operation which was performed on him as a necessity at that point of time.

119. It is the established principle of law of Torts that 'not only must there be damage (injury); it must have been caused by the defendant's fault. Causation has plagued courts and scholars more than any other topic in the law of torts. If there is no causal relation, that puts an end to the plaintiff's case, to impose liability for loss to which the defendant's conduct has not in fact contributed would be incompatible with the principle of individual responsibility on which the law of torts has been traditionally based.' (John G. Fleming : The Law of Torts, Eighth Edition P. 192-193).

120. In view of the above discussion, I answer Issues Nos. 7 and 10 in the negative.

ISSUE NO. 13 :

121. Since Issue No. 12 is answered in the negative, this issue does not survive.

ISSUE NOS. 14. 15. 16. 17 AND 19 :

122. In para 23, 25 and 26 of the plaint and in the particulars of claim, the plaintiff has made certain vague statements about expenses which he has to incur to treat his various ailments. He has stated that he has to use Colostomy bags which are not easily available and if they are available each of them costs Rs. 60/-. He has also mentioned about how he has to dress Fecal Fistula and the abscess on his leg and calf many times a day. (In the plaint there is no mention about any problem about calf, but he has stated so in his evidence before the Court). He has to use gauze and betadin ointment for the purpose of dressing. He has stated that he had to spend about Rs. 2 lakhs on his medical care and treatment and that each day he spends about Rs. 75/- towards his treatment. On the daily treatment, he has stated that he has spent about Rs. 1 lakh and for various treatments which he had to undergo, he has already spent further sum of Rs. 1 lakh. It is his case that for corrective surgery, he has to go abroad for which he is required finance of at least Rs. 10 lakhs. He has further stated that he wanted to become a chef. That it was his dream which could not be fulfilled because of this ailment and if he had in fact become a chef, he would have earned at least Rs. 4,000/- per month for the rest of his active life which would have come to Rs. 15 lakhs. The plaintiff has also stated that because he has undergone mental and physical pain because of the negligence of the defendants, he is entitled to Rs. 20 lakhs from them.

123. It is pertinent to note that no documentary evidence has been produced by the plaintiff to support his claim. No bills/vouchers are produced to substantiate his claim or to assist the Court to come to a conclusion that the plaintiff has in fact spent this much amount under the heads shown by him. About four bills of Bombay Hospital are tendered by him which in fact go to show that he has hardly spent Rs. 5,000/-. As far as radiation therapy is concerned, it was entirely free as bills disclose. He had to pay only for one sitting. That amount was Rs. 20/-. One wonders how the plaintiff has arrived at a figure of Rs. 47 lakhs for claiming damages from the defendants.

124. In fact if it was the plaintiff's case that Colostomy bags cost a particular amount, a general question should have been put at least to Dr. Hegde who had performed Colostomy operation on him. In fact a general question about medical expenses could have been asked to Dr. Hegde and Dr. Gautam Sen. It could have asked as to what would be the expenses for closure of Colostomy or in case like the plaintiff, what can be the expenses which the patient like the plaintiff is required to spend for treating his ailment. However, not a single question is put to any of the witnesses to throw any light on the general expenses which a patient like plaintiff has to incur. One, therefore, cannot have even a rough estimate. Cursorily just some figure is prayed for and an impression is given that the said figure can be very well an imaginary one. General damages can be said to follow from the injury suffered and special damages are the ones which the plaintiff has to prove. Here the plaintiff has failed on both the counts. Neither has he succeeded to prove any injury because of the defendants' fault, nor has he established special damages which he can be said to be entitled to recover from the defendants. Hence I hold that the plaintiff has failed to prove his claim of damages and hence Issue Nos. 14, 15, 16, 17 and 19 are answered in the negative.

ISSUE NO. 18 :

125. It appears that the plaintiff has written several letters to various foreign doctors seeking their opinion about the course of radiation given to him by defendant No. 3. He has a firm belief that only foreign doctors can cure him and surgery which is required to be performed on him like closure of Colostomy cannot be done in India. For this purpose, according to the plaintiff, at least Rs. 10 lakhs are required.

126. While discussing other issues, I have mentioned that it has come in the evidence of Dr. Hegde and Dr. Gautam Sen that closure of Colostomy is an operation which can be done in India and that one need not go abroad for the same. It has also come in the evidence that though the operation is difficult one, it is not uncommon. In fact Dr. Hegde has stated that the plaintiff has not bothered to approach him to seek his opinion on this. It has also come in the evidence of the plaintiff himself that Dr. D'Souza had suggested corrective surgery which would have put an end to the plaintiff's ailment. However, to use the plaintiff's own words, 'the procedure suggested by Dr. D'Souza did not inspire confidence in me'. When there are able and competent doctors in India, as we all know and as is specifically stated by Dr. Hegde and Dr. Sen, so also Dr. Kulkarni, one wonders why the plaintiff is so keen to go abroad to undergo surgery and that too on urgent basis. The claim 'of urgency put forward by the plaintiff is also totally unfounded. 13 years have passed and without undergoing surgery on urgent basis the plaintiff is very much around, quite active and mobile though admittedly suffering from various ailments.

127. The plaintiff has admitted that he is taking tuitions at his residence. He has not admitted specifically as to how much amount he is earning by way of taking tuitions. He had filed pauper petition praying that he be permitted to file the suit as Forma Pauperis under Order XXXIII, Rule 1 of Civil Procedure Code. He parried all questionsrelating to the income from the Teaching Centre run at his residence where teaching classes are going on as disclosed from the plaintiff's own evidence. When a question was put about the income generated by Teaching Centre, the plaintiff gave a stock answer that all affairs of Teaching Centre are known to his brother Sainath and that he is going to examine Sainath. Thereafter abruptly the plaintiff closed his case and Sainath never entered the witness box. Thereafter the defendants made an application under Order XXXIII, Rule 9 of Civil Procedure Code for depauperised the plaintiff alleging that false and misleading statement made by the plaintiff and that he has suppressed his income form the Coaching Classes and that he also has Shares worth Rs. 12,000/- and share in the immovable property left by his deceased father. It was also submitted by the defendants that the plaintiff has not approached the Court with clean hand and therefore, he be depauperised. This application made by the defendants was allowed by this Court by its reasoned order dated 27th February 1998 and the plaintiff was ordered to pay Court Fee of Rs. 15,000/- which was required to be paid at the time when he filed a suit in the year 1991. The plaintiff's claim about being a Chef is not supported by any document. No document is produced which will go to show that he had taken admission to any Catering College. As such the plaintiff's income has been shown to be more than Rs. 4,000/- per month. It is, therefore, argued by the defendants' Counsel that the plaintiff's claim for damages for loss of earning efc. was very much inflated.

128. It was also pointed out that the plaintiff was actively participating in the Court proceedings, was present in the Court Room throughout the day except leaving the Court Room occasionally probably to clean his Colostomy bag. In view of this discussion, I hold that the plaintiff has failed to prove that he is required to go for surgery on urgent basis abroad of which the cost would be Rs. 10 lakhs as alleged by him in para 29 of the plaint. Issue No. 18 is, therefore, answered in the negative.

ISSUE NO. 19A :

129. Something about conduct of the plaintiff has to be observed. As pointed out above, the plaintiff has not approached the Court with clean hand. He has suppressed material from the Court while making application to file plaint under Forma Pauper is to the Prothonotary & Senior Master. He has also written threatening letters to defendant No. 3. His brother and his mother were also signatories to these letters. These letters were exhibited as 'U', 'V', 'W' and 'Z'. He also went to Pune along with his brother and threatened Dr. Kulkarni. He tried to extract money from him. The contents of the letters are also threatening. It was also improper that when the matter was subjudice, the plaintiff gave interviews to various reporters which appeared in the newspapers like Sunday Observer and Mumbai Age. These interviews were obviously given with an intention to tarnish defendant No. 3's image and reputation. All the expert witnesses have spoken highly about the professional skill of defendant No. 3. Defendant No. 3 has stated that except the plaintiff, no one else has filed any complaint in any Court of law against him in his career span of 30 years. The plaintiff tried to blackmail defendant No. 3, tried to extract money from him, tried to defame defendant No. 3 and tried to interfere with the Court of Justice when the matter was subjudice. He has also suppressed from the Court that he had filed a complaint against defendant No. 3 in the Maharashtra Medical Council which came to be dismissed, stating that no prima facie case existed against defendant No. 3. Not a word is there in the plaint about the complaint made by plaintiff to the Maharashtra Medical Council. This conduct of the plaintiff was certainly blameworthy.

130. On merits the plaintiff has failed to prove that there was any negligence on the part of the defendants and, therefore, he is not entitled to claim any damages from them for the reasons given above. The plaintiff's ailment can be attributed only to 'providence' and not to 'negligence' of any of the defendants. It was his destiny to suffer. No person can remain unmoved after coming to know about the sufferings of the plaintiff who is young man in the prime of his youth. There will not be a soul who feel no compassion for this young man; but that does not mean that somebody else should be asked to pay and suffer who are no way responsible for the sufferings of the plaintiff. Nobody can give reasons as to why the plaintiff was destined to suffer in this way. First of all why cancer should strike him at the tender age of 21 years? Is there any explanation for this? Nothing. However, compassion and sympathy cannot be the tool with which defendants should be asked to compensate the plaintiff for his destin. The plaintiff has narrated the tragic story of his sufferings and his ailments in the plaint. He has also narrated them in the Court. After hearing the same, one is bound to feel compassion for him. However, the claim of damages cannot be allowed when it is based only on sympathy or compassion. Such a claim can be allowed only if the Court is satisfied that the defendants are proved to be guilty of negligence and not otherwise. From the aforesaid discussion, it is clear that the plaintiff has failed to prove that the ailments and sufferings of the plaintiff were because of the negligence of defendants and his claim of damages is bound to fail.

131. Before parting with this judgment, I feel compelled to make few observations because of the sheer length of the trial and the magnitude of the time consumed. There is a famous Sanskrit saying ''kjhj ekle- [kyw /keZ lk/kueA' meaning thereby that Healthy body is indeed the prime instrument for achieving 'Dharma'. Body is the abode of the soul. Hence it is the duty of the human being to keep it clean. If the body is diseased, it brings misfortunes. Prince Siddartha who later on became famous as Gautam Buddha, having seen a person who was very aged, on seeing a corpse, and on seeing a sick person and on seeing his deer and near ones wailing became distressed and left in search of attaining Nirvana and in search of knowledge as to what can be done to cure these misfortunes of human body.

132. No one can deny that no joy would be left in life, if a person is afflicted with ailments. He feels angry and anguished. He goes around for cure of those ailments. Some time he succeeds and some time he does not. When he does not succeed, he gives vent to his anguish and anger by targeting the doctor who has attended on him. The plaintiff in this case is one such anguished and angry person and he has targeted the defendants, more particularly defendant No. 3 Dr. Kulkarni. Such a situation is indeed unpleasant and has to be avoided. It is in the best interest of the doctor as well as the patient. There was a time when patient used to have absolute blind faith in his family doctor the Institution which has now almost become extinct. Now is the age of specialisation. Nature of medical profession also has undergone a sea-change as in other professions. There are black sheeps in the noble medical profession also but it should not be forgotten that angels are still very much there in the very same profession.

133. Patients have now become more conscious of their right to know the way they are treated. More transparency is sought by the patients in their treatment process. Medical Science, on the other hand, is a developing and incomplete science and the doctor is not always sure of the outcome of the treatment prescribed by him. Many times the outcome is unpredictable and unfortunate. This is because the response of each human body is different to the same medicine and the same relief cannot beexpected from each human body. The doctor does his best but in spite of this, finds himself at the receiving end. It is, therefore, of utmost importance that the relationship of doctor and patient should be founded on faith and faith alone. Doctor also should treat the patient as a human being and not just 'some' patient with an anonymous face. Correspondingly the patient also should remember that the doctor is a life saver, but he is not God, nor is he magician. Miracles do take place but it is the God who does miracles and not doctor. However, faith in a doctor has miraculous and magical effect for a patient. Of course in case of genuine doubt and if the case is complicated, second opinion is always desirable. Not only the patient should avail of it, but doctor should insist on it.

134. When there is a problem and when the patient or his relatives want to take recourse to legal remedy, difficulty arises about getting all the case papers from Hospital/treating doctor because the plaintiff is not able to prove his case unless case papers are made available. Hence the patient should always maintain his medical history record, his prescriptions, bills, reference, laboratory and other records of the tests conducted on him, General Physician's referral note, trauma and casualty record, anaesthetic record, operation opinion, ICU record, nursing notes on daily chart, temperature recording, pulse recording, blood pressure, blood transfusion record, prescriptions of medicine, blood, blood balance record, fluid balance record, attending doctor's treatment etc. The hospital/attending doctor must co-operate in furnishing copies of all these documents to the patient/his relatives. In fact our High Court in Writ Petition No. 3720 of 1991, 1996(3) Bom.C.R. 214, Raghunath Raheja v. Maharashtra Medical Council and others, by its order dated 11-1-1996 has given directions to the Maharashtra Medical Council and the State of Maharashtra and has observed that hospitals or doctors cannot claim any secrecy or any confidentiality in the matter of copies of the case papers relating to the patient and that they must be made available to him on demand subject to payment of usual charges. It was also directed that if necessary, Medical Council may issue a press-note in this behalf giving it wide publicity in all the media. It is not known as to whether this direction has been implemented by the concerned authorities.

135. All public hospitals/medical practitioners destroy their record after a certain period. Public hospitals at least give some notice in the newspapers about the proposed date of destroying of this record. However, this notice is microscopic and appears in an inconspicuous space in the newspaper. Instead of destroying these records, which are useful to the patients in case of difficulty, they can be preserved in a computer disc. In this computer age, it appears to be an appropriate solution. The doctors also should regularly test their equipments to see whether they give accurate finding. The patients also should be alert and report to the treating doctors at the first distress signal without aggravating their ailments and then blaming the doctors.

136. Signing of the consent form by the patient should not be empty formality and a mechanical exercise. The contents of the consent form should be more detailed and exhaustive. Side effects and consequences of the treatments to be administered to the patient should be explained to him/his nearest relatives in full, so that the patient and his relatives are fully aware and conscious of them. This will be in the interest of both the patient as well as the doctor.

137. Also the practice of some of the patients of the so-called victims of the alleged negligence/malpractices of doctors to feed the newspaper with stories, the moment the suit is filed by them against the said doctors, has to be deprecated. There appears to be growing tendency to do this. In the present case also the plaintiff has resorted tothis practice, even when the matter was subjudice. This only widens the gulf between the doctors and patients and the atmosphere ot mistrust is created which is totally repugnant and destructive of the relationship of doctor and patient which in fact has to be based totally on faith and trust towards each other. In this atmosphere of mistrust any attempt made by either party to settle the matter also become a difficult task and a long drawn legal battle then goes on and on leading to waste of time, energy, money and deterioration of relationship of doctor and patient. Therefore, to curtail the litigation, the above broad observations may be kept in mind by both doctor as well as patient.

138. The defendant's Counsel Mr. Merchant and Mr. Parikh have strenuously urged that the plaintiff be saddled with costs of litigation as the defendants were put to expenses unnecessarily by the plaintiff even though he was aware that he had no case. Mr. Merchant, in addition, argued that defendant No. 3, Dr. Kulkarni is a retired person, who is settled at Pune and who was constrained to come down to Bombay very frequently to attend to this case and that the plaintiff's filing of this suit was misconceived and without any merit, was an abuse of the process of law.

139. It is difficult to agree with these submissions of the defendant's Counsel. The plaintiff was struck with the deadly disease like cancer at the tender age of 21 years. He was treated by renowned doctors. Defendant No. 3, Dr. Kulkarni, administered radiation therapy to the plaintiff in consultation with Dr. Asha Veer, who was treating Oncologist of defendant Nos. 1 and 2 Hospital. The plaintiff is very much alive today. However, he is indeed inflicted by various ailments. He is genuinely labouring under a belief that all these ailments are because of second course of radiation and that Dr. Kulkarni was negligent in administering the same to him. He has certain reasons of his own for arriving at this conclusion. This conclusion may be scientifically wrong, but he cannot be prevented for that reason to take recourse to any legal remedy which is available to him. The plaintiff is no doubt a layman, but he is not an illiterate person. He approached the Court of law when he thought that there was a wrong committed by the defendants and that he should approach the Court for redressal of his wrong. I wonder how for this reason, the plaintiff can be saddled with the costs of the litigation or how he can be asked to pay exemplary costs as prayed by Mr. Merchant. In my opinion, such a prayer is improper. I, therefore, reject the same.

140. In view of the foregoing discussion and reasons given for all the findings, on all the issues, the following order is passed:

Suit is dismissed. Under the circumstances mentioned hereinabove, the parties to bear their own costs.

141. Suit dismissed.

Subject	Limitation
Court	Mumbai High Court
Decided On	Apr-23-1998
Case Number	Suit No. 714 of 1992
Judge	Dr. Pratibha Upasani, J.
Reported in	1998(3)BomCR503
Acts	Limitation Act, 1963 - Schedule - Article 113; Indian Limitation Act, 1908 - Schedule - Article 36; Code of Civil Procedure (CPC), 1908 - Sections 35 - Order 1, Rule 3 - Order 7, Rule 1 - Order 33, Rule 9
Appellant	Venkatesh Iyer
Respondent	Bombay Hospital Trust and Others
Appellant Advocate	: Mihir Desai and ;Ms. Adenwala, Advs.
Respondent Advocate	Ketan Parikh and ;Gautam Mehta, Advs., i/b. Kanga & Co., ;D.V. Merchant, ;Snehal Shah and ;V.R. Maniar, Advs., i/b. Dhru & Co.

Venkatesh Iyer Vs. Bombay Hospital Trust and Others - Court Judgment