Late Baby Ankita Kapoor vs Christian Medical College Hospital And Ors.

IN the present case, Mr. Anil Kapoor, the father of late Baby Ankita Kapoor, filed this complaint alleging medical negligence against Christian Medical College Hospital, Vellore, opposite party No. 1; Dr. David Dennison, opposite party No. 2; Dr. Ravi Subramanium, opposite party No. 3 and Dr. Ravi Subramanium, opposite party No. 4.

THE brief facts of the case are: Baby Ankita Kapoor was 8 years old and she was suffering from a disease known as "Beta -Thalassaemia" a genetic blood disorder. When she was five months old, this disorder was diagnosed. The management of the disease involves (a) Transfusion of blood at the interval of about 3 weeks (b) Regular chelation (removal) of excess iron deposited in the body as a result of transfusions, with the help of iron chelating agents. Ankita was brought up under the expert care of Pediatricians of Sir Ganga Ram Hospital, New Delhi, regularly following the above regime. She grew up as a normal child. On various seminars relating to Thalassaemia, Bone Marrow Transplant, which was earlier being used for treatment of Leukaemia, was being offered as a treatment of Thalassaemia. Earlier such treatment was only available abroad. Bone Marrow Transplantation got started first in India in CMCH, Vellore, O.P. No. l, in the year 1991. The success was claimed as "with a median follow up of 6 months post -transplant, ranging from 1 to 24 months, 12/13 patients (92%) are alive and transfusion free, one patient (8%) expired approximately one month post -transplant due to graft failure". This claim was published in National Thalassaemia Conference. When Anil Kapoor enquired into the possibility of BMT for their daughter, then, they came to know that the pre -condition of patient being considered for BMT was HLA AB, DR Matched donor. Luckily, Ankita''s HLA matching was done with her elder sister Nidhi at All India Institute of Medical Sciences, New Delhi. This report was forwarded to CMCH, Vellore, O.P. No. l and once again HLA matching and other tests of patient and donor were done in CMCH, Vellore, O.P. No. l, in October, 1994. Thereafter, tentative date for BMT was fixed for September, 1995 and till then, chelation therapy as per doses advised by the CMCH doctor, O.P. No. l was being followed. Complainant conveyed results of various tests and other developments to the doctors regularly and they were also informed about patient being found Hepatitis -C positive. Doctors replied to this query regarding Hepatitis -C, that this is not a contraindication for BMT and that the issue could be discussed at the next visit to the CMCH, Vellore, O.P. No. l. Surgery was conducted on 5.10.1995 and Hickman catheter was fitted to patient.

A test for Serum Ferritin level is an important test, which was done at the insistence of the complainant and the result of the same was 5085 ng/ml, which was too high, and higher than 3756 ng/ml what was found out a year before at CMCH, O.P. No. l, and then 3200 ng/ml tested four months back at Sir Ganga Ram Hospital. Complainant preferred to take Ankita back and do extensive chelation therapy and will come back again for BMT, as there was no urgency since the Serum Ferritin results were high. The condition of the liver has more bearing on success of BMT is what was told to the complainant by the doctors and since her liver condition was quite good, they placed her in category II, from the patients out of 3 categories, suggested by Dr. Lucrelli of Italy. Since she was already operated upon and Hickman catheter was fitted, the complainant had no choice but to go ahead with BMT. Ankita was shifted to BMT room on 9.10.1995, transplant was carried out on 19.10.1995, but unfortunately, Ankita expired in the "infection free" BMT room itself on 16.11.1995 because of infection. As per the deficiency in service and negligence of the opposite parties, the learned Counsel for the complainant argued on the following issues: 1. Infections in BMT Unit: BMT unit was not working properly. It is submitted that the BMT unit should function in a totally infection free and very intensive care unit and should be equipped with for medical emergencies like cardiac problems, etc. Even the testing facilities like eco -cardiogram and X -ray machine were not available inside the unit. It was not totally infection free and also it was understaffed.

Prognosis of Risk Evaluation: The opposite parties did not correctly asses Ankita''s case and did not disclose under which category her case would fall, whether it is category I or II or III. Opposite parties have shown her case as grade III in the death report, but verbally it was told to complainant that it was a good grade II case. It is submitted that if the doctors would have assessed the risk factor after conducting the test of liver biopsy and serum ferritin, and explained the same to the complainant on 27.9.1995 or 28.9.1995, they would have postponed the idea of BMT till the restoration of liver enlargement and Serum Ferritin levels come into normal. Instead of doing the test on 27.9.1995, it was done only on 5.10.1995 and eight days were gone wasted at the critical time because of the deficiency in service.

BMT - Post treatment: On 13.11.1995 no doctor was visited the patient till 2.00 p.m. as against their usual time of visit at 8.00 a.m. daily; the patient was unwell the day before and complications aggravated on that crucial day, which is gross irresponsibility and apathy on the part of the opposite parties. One day before the death of Ankita i.e., on 16.11.1995, except the junior doctor who came in after frantic calls made by nurses, no senior doctors visited there.

Patient was exposed to infection: Because the opposite parties did not have the ICU and required facilities, the patient was taken out of BMT room for Eco -cardiogram on 7.11.1995 unaccompanied by any doctor and nurse and exposed her to infections. On 15.11.1995, although she was on oxygen support, she was taken out of the BMT room without any oxygen support, due to which her skin started turning bluish. Although BMT room should be restricted to only parents of the patient, various medical students, photographers, doctors, technicians could enter the room and proper precautions were not taken by the opposite parties to prevent infections.

Reaction with transfused platelets: The patient developed severe reaction from transfusion with platelets, which could become fatal and other complications also develop, it is contended that this reaction was caused most likely due to platelets having traces of mismatched blood.

Pre -transplant Risk Categorisation: This is based on the extent of (a) iron chelation (b) liver size more than 2 cms and (c) liver fibrosis on biopsy. These are the main factors, which effect the outcome of BMT Thalassaemia. As per the evaluation of the opposite parties, when Ankita was brought to their hospital in October 1994, the evaluation showed that her liver was damaged as a result of iron overload due to repeated blood transfusion that she had undergone, which the opposite parties admit. When the patient was brought in September 1995, the opposite parties could have immediately done the liver biopsy and serum ferritin test first, whereas the opposite parties allegedly informed that liver biopsy test postponed till the insertion of Hickman catheter in order to avoid giving general anesthesia twice, whereas Hickman catheter could also be inserted on local anesthesia. Her liver biopsy was done only on 5th October, 1995 i.e., delayed by eight days, which is not justifiably explained by opposite parties, and hence, it is deficiency in service on their part.

Ignoring Emotional and Psychological Considerations: A child of 8 years old would have never stayed away from parents. Only one parent was allowed to meet her for only two hours a day and it is submitted that they rely in the context an excerpt from the book "Bone Marrow Transplant", which is as under: "a good bone marrow transplant program will also recognize the importance of providing patients and their families with emotional and psychological support before, during and after the transplant, and will make personnel and other support systems readily available to families for this purpose".

It is a trying experience for a young child to cope with this illness to go through treatment all by herself without the support of her parents. 8. Denial of Right of Consumer Education: From 1.1.1994 onwards opposite party No. 1 was being funded by Indian Council of Medical Research (ICMR) as a Research Project, in order to derive correct dosage schedule of different treatment regimens followed in the world and whether it is suitable to our population. But the opposite parties never gave any information as to whether they have treated according to the conventional/traditional medical system or they have deviated, because it is obligatory for a research centre to take prior written consent, if new medicines are to be tried for research purpose on the patient. Complainant has been denied his right to know if certain drugs were prescribed by the opposite parties on experimental basis, because the entire information with regard to treatment has been denied to him.

Denial of Medical REcord: It is submitted that initially, the opposite parties deliberately denied to give the medical record of the patient on the plea that the hospital does not have a policy to give the medical records. It is only when the complaint was filed on 17.11.1997, then the opposite parties come up with the plea that the medical record of this particular patient is missing and then lodged a police complaint, registered FIR and obtained No Trace Report'', dated 27.11.2000. It is only after seven years from receipt of copy of the complaint, opposite parties filed a reply. They had deliberately kept away the medical record of the patient in order to hide their lapses, and adverse inference should be taken against opposite parties. In support of his contention, the learned Counsel for the complainant relied on a Judgment in H.S. Sharma v. Indraprastha Apollo Hospital and Another, reported in II (2007) CPJ 21 (NC), and submitted that as per the rules of Medical Council of India, medical record should be maintained and be made available to the patient or the family members of the patient within 72 hours, which has not been adhered to by the opposite parties.

Medical Superintendent''s Affidavit is unacceptable: It is submitted by the learned Counsel that Medical Superintendent of C.M.C.H. O.P. No. 1, has filed an affidavit on 20.11.2008 on behalf of the hospital and the doctors, which cannot be relied upon, as he himself is not a doctor who treated the patient and is not acquainted with the facts of the case and also he is not a competent person to file the same. This affidavit relies on the medical record of the patient, which was allegedly stolen in the year 1999.

THE complainant claimed compensation of Rs. 25,00,000 for the mental agony they suffered due to the deficiency in service by the opposite parties, which is as follows: 1. Cost of Treatment (i) Cost of Treatment as per Bills of CMCH Vellore from 2.10.1995 to 16.11.1995 Rs. 4,90,576.00 (ii) Cost of Tests done in OPD from 27.9.95 to 2.10.1995 Rs. 5,448.00 (iii) Cost of Tests done in OPD at the time of HLA matching on 5.10.1994 and 6.10.1994 Rs. 9,553.00 (iv) Cost of disposables, medicines, etc., supplied by us Rs. 25,000.00 2. Cost of Travelling, Cost of living for about 1 months at Vellore Rs. 20,000.00 Rs. 5,50,577.00 3. Loss of opportunity present and future, on account of remaining away from work place. The donor remaining away from School Rs. 1,50,000.00 4. Mental anguish to the parents, grand -parents at loss of child who was brought up with utmost affection, love and care. Including loss of mental peace and guilt complex to elder sister (donor) and parents Rs. 18,00,000.00 Rs. 25,00,577.00 OR SAY Rs. 25,00,000.00 Opposite Parties Version

About the Disease Beta Thalassaemia Major: 1. Beta Thalassaemia Major'' is a hereditary disorder of blood, in other words the red cells that are formed by the body are genetically defective, even at the time of birth, leading to chronically low levels of haemoglobin. These levels are not enough to sustain life. The patients, therefore, need lifelong blood transfusions every three weeks approxi -mately.

That as a consequence of repeated blood transfusions, the patients become overload -ed with iron. This iron has to be removed by a process called iron chelation therapy'' whereby a drug called desferrioxamine is given as an injection under the skin for 8 -10 hours, daily using a special pump, along with oral drugs (Deferriprone). If the iron is not removed, it gets deposited in most of the body organs and contributes to the death of the patient by late adolescence. If the patients get regular and properly screened blood transfusions, along with iron chelation therapy as per recommendations, they can live near normal life in the early years.

However, this is not achieved in most cases and the children affected by such disorder normally develop many complications relating to iron overload and viral infections because of repeated blood transfusions. Liver damage, cardiac disease and various glandular dysfunctions, apart from hepatitis B and C virus infections are some of the side effects of the intense treatment, required in the case of such disorder.

Apart from repeated blood transfusion and chelation, there are other management procedures such as treatment of transfusion transmitted viral infection, mineral and hormonal replacement therapy and so on which are required to be undergone by the patients from time -to -time.

The result is that even though these children may look externally normal, there is damage to various body organs notably the liver, heart and various hormone -producing glands. Almost all of them have restricted growth because of these problems.

The complainant was fully aware of the diagnosis of this disease when the child was three months old and the baby was receiving regular blood transfusions from the age of three months and iron chelation since 1989 when she was about two years old. 2. Risk Mortality: The only treatment available in this condition is Bone Marrow Transplantation''. But, unfortunately, BMT is associated with a definite risk of mortality from treatment related complications, which can range from 5% to 30% depending upon the patient''s pre -BMT status. Patients in whom iron overload has caused organ damage have a higher chance of death from this treatment as compared to those who are well chelated with minimal or no liver damage. Further, there is also 5% to 15% chance of rejection following the BMT, which may mean that the patient has to undergo regular blood transfusions all over again. Yet, BMT continues to be considered as the preferred treatment for Thalassaemia, if an HLA matched donor is available.

The risk categorization is based on the extent of (i) iron chelation, (ii) liver size more than 2 cms, and (iii) liver fibrosis on biopsy. Thalassaemia transplant patients are categorized into three nsk groups based on these factors. The outcome of BMT in the three classes is as follows: Cure Death Rejection Class I All 3 good risk 90% 5% 5% factors Class II 1 or 2 bad risk 80% 15% 5% factors Class III All 3 bad risk 65% 25% 10% factors These are just average figures for large number of patients and there is no way to predict the outcome in any individual patient. Complications other than those related to the problems of the liver can also contribute to morbidity and mortality in different patients. This is always conveyed very clearly prior to BMT to patients and/or their families. In fact, printed literature is also provided explaining all these issues.

Facilities in BMT Unit: The learned Counsel for the opposite parties state that BMT Unit in the hospital consists of Isolation rooms, which receive "High Efficiency Particulate Air" filtered air, to reduce the risk of infection. HEPA filtration removes particles of 0.3 microns or larger with an efficiency of 99.97%. The main aim of HEPA filtration is to filter fungi and bacteria, which can cause morbidity and mortality in BMT patients. The usual precautions of barrier nursing are also followed. The BMT unit has surveillance microbiology performed on regular intervals. The unit is meticulously wiped and cleaned everyday. The linen supplied to the patient and staff in the unit is autoclaved (sterilized) and changed every day. The only food given to the patients is terminally pressure cooked before being given to patients. Even the water used for washing and bathing is boiled. There is one nurse attached to each of the patients in the unit at all times with three shifts of eight hours each. There is a doctor of the rank of a Registrar dedicated for BMT patients only, who sees the patients on rounds and is available 24 hours a day, on calls. A consultant reviews the patients every morning with the Registrar and later on in the day if it is necessary. The Senior Registrar, who supervise BMT unit is the post -MD in medicine/pediatrics. He is adequately experienced to manage all emergencies, including administration of cardiopulmonary resuscitation.

The learned Counsel also submitted that nowhere in the world one can guarantee that no infection will occur, because there are certain organisms which the patients have been infected and are pre -existing in their own body. When one''s immunity is normal, these organisms do not usually infect. But when one''s immunity is compromised, such as during BMT, these organisms can cause life -threatening infections. In the present case also, in spite of all the precautions that were taken, probably some viral infection from the heart, which pre -existed earlier, could have been the contributory factor towards her death. Insofar as X -ray and Echocardiogram facilities, they are not part of the standard equipment in any BMT unit anywhere in the world. On 29.10.1995, when pneumonia was detected in the patient, she was already on intensive broad -spectrum antibiotic therapy. On 7.11.1995, when the patient had breathing difficulty, a chest X -ray was taken, which showed the enlargement of the heart. Echocardiogram was done after consulting cardiologist to rule out the presence of significant fluid around the heart. The Echocardiogram confirmed enlargement of the heart but showed good contractility. It is argued that the allegation by the complainant that the patient got infected because echocardiogram and X -ray machine were not available in the unit and she had moved out of BMT unit for the same, has no relevance, as the patient was completely covered with the antibiotics. 4. Pre -transplant risk categorization: The patient was admitted in Hematology Department of Hospital. Actual classification into Class II or III risk category requires a liver biopsy, which can only be done under general anesthesia in children. Liver biopsy is done after all the results of blood investigations are available and this procedure takes normally a period of one week to ten days after the patient arrives in Vellore. Since the Hickman Catheter is inserted at the same time, the dates for such procedures are also based on when the patient is likely to enter the BMT room. The hospital normally avoids inserting the Hickman Catheter too early, to reduce the risk of infection while the patients are waiting to enter the BMT room. In order to avoid giving general anesthesia twice, the hospital has a policy to do the liver biopsy, at the same time as Hickman Catheter insertion: this was explained to the patient''s parents. In almost all the patients of the patient''s category, ferritin levels are usually found to have varying degrees of liver fibrosis and doctors discussed the matter with the parents that she would be class III patient. On 5.10.1995, Hickman Catheter was inserted and liver biopsy was done. On 9.10.1995, report of liver biopsy showed mild periportal fibrosis'' placing her in the Class III status.

The opposite parties contended that these liver changes are mild in comparison with other patients. The insertion of Hickman Catheter does not mean the patient is committed to the transplant, as it could be removed at any time as a general procedure and does not require general anesthesia, but the patient''s parents never expressed anything on this issue and opposite parties opined that waiting further is not going to help but only add to the existing liver damage and that it could possibly worsen the chances of success. The risks and benefits of BMT were discussed in detail with the family and only then the patient underwent BMT. 5. BMT Post -treatment The patient underwent BMT on 19.10.1995 and the post -transplant course was complicated initially by muscositis (irritation of the lining of the mouth and intestine) coupled with fever and pneumonia, which are consequences of the intensive medications given as part of the transplant procedure. For this, she required intensive blood and antibiotic support. She also developed a reversible complication of the liver called veno -occlusive disease, on the 16th post -transplant day. Antibiotics were suitably modified for the spiking fever and pneumonia, but in spite of it, chest X -ray of 25th transplant showed progression in pneumonia. The patient had a reaction to the platelet transfusion on 5.11.1995, which is common in patients who have received multiple transfusions in the past. Reactions are due to the plasma or white cells that are present in the platelet product, it is averred by the opposite parties that the reaction is not due to traces of mismatched blood as alleged. The patient recovered from this reaction with appropriate therapeutic intervention.

The patient had breathing difficulty on 7.11.1995 and the chest X -ray showed enlargement of the heart. After consulting cardiologist, echocardiogram was done at 11.00 p.m. which ruled out the presence of significant fluid around the heart, a condition which can occur in such patients. But the echocardiogram confirmed enlargement of the heart, which is a viral infection called viral myocarditis''. She received broad -spectrum antibiotics as per standard principles of managing febrile neutropaenic patients but her condition deteriorated despite this. The progress was conveyed to the patient''s parents twice everyday. Her condition was stable for few days. But on 15.11.1995, in view of the increasing breathing difficulty, a repeat echocardiogram was done, which showed further enlargement of the heart but still with a normal ejection fraction. It was diagnosed by the cardiologist as acute myocarditis. She was receiving maximum therapy for possible infections, and on 16.11.1995, which is 28th post -transplant day, she had a seizure (fits) and subsequently, suffered a cardio -respiratory arrest. Despite intensive cardio -pulmonary resuscitation, she could not be revived and declared dead on 16.11.1995. The learned Counsel for the opposite parties contended that there was no negligence or deficiency in service on their part, as her treatment was done on moment -to -moment basis in the best possible manner as per the standard medical practice. 6. Patient''s emotional and psychological Considerations: It is stated that opposite parties carried out BMT for children ranging from 6 months to 15 years. Many children, above five years of age, adjust very well in the BMT unit. A television is provided in each room and the nurses make every effort to see that the children are happy and comfortable inside the unit. Whenever they find that some children feel psychologically difficult due to this separation and isolation, some allowances are made in those cases, but they have to strike a balance between the risk of infection and unrestricted entry of the family members. In case of very small children, one parent stays with the child continuously and the other parent is allowed to meet the patient every two hours. The complainant was duly informed about this protocol in 1994. It was for the parents to prepare their daughter in the said procedure. Opposite parties have structured their protocol based on local conditions. The complainant never complained during the patient''s stay in BMT unit and requested for extra access to meet their daughter. It is for the first time in the complaint; they have alleged this complaint as an after thought.

Denial of Right of Consumer Education: Learned Counsel submitted that the family members of the patient are continuously given the treatment details, protocol details, procedural details from the first time they come to the hospital till they leave. Extensive discussions and deliberations on the risks and benefits of BMT are held with the parents of the patient. The evaluation of the condition of the patient in the prognosis is informed regularly, and risk factors and the complications are always discussed with them. The Indian Council of Medical Research has granted an advance center for Bone Marrow Transplantation in Thalassaemia to the Christian Medical College, Hospital, i.e., opposite parties recognizing its pioneering efforts to provide BMT for patients in India. All BMT centres in the world treat the patients with a defined protocols, which have some variations to try and identify the most suitable way of treating patients. This continuous process in medical science cannot be called experimentation as alleged by the complainant.

Funding provided by ICMR is to improve infrastructure for transplantation in terms drug assays, blood irradiation, detection of chimerism at the molecular level and facilities for diagnosis of cytomegalovirus facilities for infections. These are powerful tools to help and make the transplant procedure safer and post -transplant monitoring more accurate for patients. Even the centre in Pesaro, which has the maximum experience in the world, is still modifying its protocols based on new data for patients in different risk categories. Opposite parties of the CMC hospital is merely doing the same based on the literature available in the world and accordingly deny the allegation that the hospital experimented on baby Ankita. 8. Denial of Medical Record: It is submitted that the hospital records of baby Ankita were found to have been missing. Accordingly, a police complaint, dated 13.2.1999, was duly lodged. However, the hospital provided consolidated summary to the patient with all the relevant details, which was given to the complainant, and no facts were concealed regarding the reasons for the patient''s death. The police report, dated 27.11.2000 issued by Vellore North Police Station, regarding untraced report has been submitted along with reply. All queries, regarding the reasons for death and the relevant details regarding treatment were given to the complainant, which have been placed on record and it is averred that there is no denial of medical record to the complainants. The complainant owes the opposite parties a sum of Rs. 1,88,576.03, because the total bill amount was Rs. 4,98,118.03 and the complainant is yet to pay Rs. 1,88,576.03 for the treatment rendered by the hospital.

LASTLY , the affidavit filed by the Medical Superintendent for which the complainant averred that it has mere statement value of giving the details of the treatment, which are already on record; it is argued by the opposite parties that and there is no evidence produced by the complainant to show that the statements made in the affidavit are false or fabricated. It is contended that there is no deficiency in service in filing that affidavit by the opposite parties. Our Findings Heard the learned Counsel for both the parties and perused the record. In our considered view, there is no negligence or deficiency in service on the part of the opposite parties in the treatment given to late baby Ankita. High Risk Category Firstly, she was classified into Class III risk category, where all the three risk factors are there and where rejection of the BMT (Bone Marrow Transplantation), is associated with risk of 10% and death with risk of 25% and the cure with risk of 65%. These are general average figures of large number of patients, and are not attributable to any single patient. In the present case, the opposite parties have given the treatment to her as per the defined protocols and what is suitable to her depending on her condition at the relevant time. Enlargement of heart in her case was diagnosed as acute myocarditis''. The possible causes for this could be bacterial, fungal or viral infections. She received maximum therapy for all possible infections. But her condition deteriorated, despite appropriate medication as per the standard principles of managing febrile neutropaenic patients.

Secondly, the parents of the patient were explained constantly at every stage, regarding the treatment that was being given and the risks that are associated with this disease. Opposite parties have explained the complications and possible outcome of the treatment of BMT considering that the patient was falling into Class III risk category. Even patients of Class I risk category can also develop fatal complications during or after BMT. The allegation by the complainant, that there was reaction due to platelet transfusion because of mismatched blood that has been given, is not proved. Such reaction to transfusion of red cells or platelets or plasma is common in patients who have received multiple transfusions. This reaction, which the patient has undergone, was managed on 5.11.1995 with antihistamines and antipyretics. The patient recovered from the same with appropriate therapeutic intervention. Thirdly, as regards the allegation that the BMT unit did not have proper infrastructure and equipment and that it is prone to infections has been explained by the opposite parties stating that entry to the BMT unit is restricted; that all persons entering into BMT unit have to clean hands and change their clothes; that the protocols were strictly adhered to and the opposite parties never compromised on this issue; that even the students are not allowed to touch or examine the patients in BMT unit and that it is maintained as a clean room with high efficiency particulate air (HEPA), which is a filtration to filter fungi and bacteria in BMT unit. We do not find any deficiency in service in this regard by the opposite parties.

Fourthly, the allegation that the child was not allowed to meet the parents and this isolation was psychologically become difficult for her, is not justified because the parents have never uttered even one word during the course of treatment by requesting for an extra entry of the family members. The parents of the patient are duly informed about the protocol in the year 1994 and they were prepared themselves and also prepared the child for the said procedure. A nurse was always being provided with each patient and a television is provided in each room, and hence, we do not find any deficiency in service in this regard on the part of the opposite parties. Fifthly, regarding the delay of eight days, as alleged by the complainant, in doing the liver biopsy which can only be done under general anesthesia, opposite parties submitted that according to the policy to avoid giving general anesthesia twice in children, the hospital has a policy to do the liver biopsy at the same time as the Hickman Catheter insertion: this has been explained to the parents of the patient and it cannot be said that this was not known to the parents of the patient earlier, and there was no such delay as contended by the complainant.

Further, when the patient had breathing difficulty on 7.11.1995 and the X -ray showed enlargement of the heart. The echocardiogram confirmed enlargement of the heart but showed good contractility. ECGs were done without any delay and she was transported on a trolley with portable oxygen for the same. Sixthly, as regards not informing the complainant regarding procedural details, treatment details and protocol details, we accept the version of the opposite parties that extensive discussions and deliberations on the risks and benefits of BMT were held with the parents of the patient. The evaluation of the condition of the patient has been regularly discussed with them and that there was no question of any experimentation as alleged by the complainant. Each patient needs to be treated in the best suitable manner in the condition and the circumstances of each case. Nothing has been brought on record to show that the opposite parties have done any treatment, which is not part of the normal medical protocol.

As for the medical record, that has been lost in the hospital, it has been explained by the opposite parties stating that a police report has been filed for the same. At the same time, complainant has not alleged that opposite parties have manipulated records. The entire summary with all the treatment details had been given to the complainant and there is no whisper of any element of doubt of tampering of the record or any comment about the variance in the same. Lastly, complainant did not file any expert evidence to prove the allegations that have been made in the complaint that opposite parties did not give correct treatment or that they gave wrong treatment due to which the patient has suffered.

THE opposite parties are a well known hospital and have been recognized by Indian Council of Medical Research (ICMR), and singled out to provide funds to improve infrastructure for Bone Marrow Transplantation work, which is being done in the hospital. The opposite parties also stated that specially for the underprivileged and also those who cannot afford treatment anywhere else in India, many such patients are treated at free of cost or some -times at very subsidized cost. Although the complainant still own an amount of Rs. 1,88,576, to the opposite parties for the treatment, he conveniently never mentioned the same in the complaint.

IN our view, the opposite parties did not compromise in any way, while treating the patient. They acted in a manner that is acceptable in the medical profession and have done what is required to be done to protect the patient from infections. In spite of best possible care, she suffered, may be because of pre -existing infection, which could have contributed to her death. It is a known fact that certain organisms, which most human beings normally have, do not usually infect a normal person, where there immunity is normal, but in patients whose immunity is compromised, these organisms could become life threatening infections and for some unknown reasons, they could get aggravated and accelerate the death of the patient.

THE CMCH Hospital -O.P. No. l has also shown in Annexure D all the information regarding BMT patients in writing which consists of all the issues relating to patient, contraindications, and collection of blood for Autologous Transfusion, Bone Marrow Harvest, Hickman Catheter Insertion, Admission to Transplant Unit, Conditioning, Bone Marrow Transplant, Enlargement, Complications, Discharge, Post Transplant Care and in the result it is stated that "the maximum number of bone marrow transplants for Thalassaemia have been done by Professor Lucarelli at Pesaro in Italy and he has shown that liver enlargement, liver fibrosis and poor chelation are the main factors which affect the outcome of BMT in Thalassaemia. In patients who do not have any of these risk factors, BMT is successful in 95% of patients. However in patients who have all three factors transplant is associated with failure or death in about 40% of patients."

THE complainant did not bring any expert evidence to substantiate their contentions regarding the medical treatment given by the opposite parties to support their contention that there is deficiency in service and negligence on the part of the opposite parties. Nothing specific has been brought out to show that opposite parties failed or wronged while giving treatment, nor did they bring any evidence to prove that what they have done is not according to the well known and accepted standard medical practices.

WE also rely on the latest judgment of the Apex Court in Martin F.D. Souza v. Mohd. Ishfaq, I (2009) CPJ 32 (SC)=157 (2009) DLT 391 (SC)=II (2009) SLT 20, (Civil Appeal No. 3541 of 2002), wherein the Apex Court considered some earlier decisions of the National Commission and Supreme Court relating to medical negligence and it held "it is evident that doctors and nursing homes/hospitals need not be unduly worried about the performance of their functions. The law is a watchdog, and not a bloodhound, and as long as doctors do their duty with reasonable care they will not be held liable even if their treatment was unsuccessful". It also held that it must be remembered that sometimes despite their best efforts the treatment of a doctor fails. For instance, sometimes despite the best effort of a surgeon, the patient dies. That does not mean that the doctor or the surgeon must be held to be guilty of medical negligence, unless there is some strong evidence to suggest that he is.

IN view of the above discussion, we find there is no negligence or deficiency in service on the part of the opposite parties. The complaint is accordingly dismissed. No order as to costs. Complaint dismissed.