CASE LAW: 10TH JUNE,2018

10 June, 2018

*|MC:SUBJECT|*

 SMT. YASHODA GOYAL v. DR. AHUJA’S PATHOLOGY & IMAGING CENTRE & ORS. (SCDRC, Uttarakhand, Dehradun- C.C. No. 04/2006)

ORDER DATED: 13.03.2018

FACTS:
The Complainant had visited Dr. Pradeep Sharda, for check-up as she had pain near her breast. After check-up, she was referred to Dr. Ahuja’s Pathology & Imaging Centre (OP-1) for further tests.
Dr. Alok Ahuja (OP-2) who was running the Pathology & Imaging Centre, took the blood sample of the complainant and did fine needle aspiration biopsy and the result was suggested as excision biopsy.
On 20.05.2003, the specimen of breast lump was taken for further test and declared infiltrating ductal carcinoma. After obtaining the reports, the complainant went to O.N.G.C. Hospital, Ballupur Road, Dehradun and discussed her problems with the doctors there, whereupon she was referred to Dr. Ashok Malviya, New Delhi fur further treatment. Dr. Ashok Malviya, after going through the reports, referred the complainant to Rajiv Gandhi Cancer Institute and Research Centre (OP-3) for treatment. The complainant visited OP-3 for further check-up and during treatment and diagnosis, no breast lump was taken and the OP-3, relying upon the report dated 20.05.2003 of OP-1 and OP-2, took the complainant for surgery and removed her left side breast. During operation, the specimen of left MRM was sent for biopsy and vide report dated 09.06.2003 issued by OP-3, it was reported that, “Diagnosed case of carcinoma breast. No residual tumour tissue seen in the breast. Axillary Lymphnodes, Level II, III tissue are free of tumour tissue”.
After going through the test report dated 09.06.2003, the doctors at OP-3 were afraid of being questioned and immediately asked the complainant’s attendant to bring the remaining tissue for market study wherein no breast tissue was noted and no malignancy was seen.
In order to confirm the reports, the complainant got the slides checked at Dr. Lal Path Labs Pvt. Ltd., ‘Eskay House’, and the report dated 11.12.2003 clarified that it was not a case of carcinoma breast and she was wrongly diagnosed and the OP-3 wrongly operated the left breast of the complainant, which has unnecessarily been removed. It is a clear case of negligence and failure of proper test report and diagnosis. The OPs have grossly neglected in curing the complainant and due to their negligence, she had to undergo painful treatment. After removal of important organ of her body, the complainant had to go for further treatment for more than two years’ due to the post effects of the surgery, which resulted in swelling in her right arm. The complainant cannot, now, do any regular work and cannot even cook food and perform other daily jobs. The complainant had to engage one attendant for her daily jobs. The complainant cannot be hale and hearty. Therefore, alleging medical negligence on the part of the opposite parties, the complainant filed the present consumer complaint and sought the reliefs, as mentioned in the prayer clause of the consumer complaint.
 
DEFENSE OF OP-1 & OP-2:
The OP-1 and OP-2 in filed written statement pleaded that:
  • the pathology report was suggestive and the complainant was specifically advised to take second opinion before determining course of treatment and that is why original slides were handed over to the patient on 30.05.2003
  • the portion which was examined by OP-2 was breast lump, while the specimen examined by Dr. Lal Path Labs Pvt. Ltd. was skin nodule and there is quite possibility that the observation regarding two different specimen may have varied
  • there is always a scope or space for difference of opinion and there are limitations of pathological study, which were explained to the complainant while handing over the slide on 30.05.2003
  • there is a possibility that the breast lump which was examined by OP-2 suggested malignancy, while the skin nodule examined after breast removal, may have contained no malignance cell, as the stage of the patient was detected at the very early stage
  • the specimen of excision biopsy was submitted on 20.05.2003 and the specimen was processed as per standard protocol and a comment of infiltrating duct carcinoma was proposed
  • the case was discussed with Dr. Pradeep Sharda and the limitations of morphologic evaluation in the case were discussed and appreciated
  • OP-2 expressed the limitations in the case to the complainant when she came to collect the report and also spoke with the referring surgeon and recommended to seek a second opinion in a specialized centre before planning therapy
  • the complainant met the OP-2 on 30.05.2003 to collect slides and was explained the limitations of evaluation again and the importance and necessity of second opinion
  • the microscopic features of sweat glands and breast tissue are similar, as the “breast is a modified sweat gland” and the difference between the benign and malignant is a hair line difference in few cases
  • one of the most features of malignancy is local invasion and that there is no negligence on their part.
 
DEFENSE OF OP-3:
The OP- 3 filed in his written statement pleaded that:
  • they have treated the patient in accordance with well-established medical procedures, practices and norms
  • OP- 3 is a state of Art Centre dealing with medical and surgical treatment of cancers and it is fully equipped to diagnose and treat all types of cancers
  • the OP- 3 is situated in New Delhi and does not carry on any business nor does it have any branch office at Dehradun or in the State of Uttarakhand and that the consumer complaint is barred by limitation
  • the complainant was operated upon on 05.06.2003; that the complainant visited the OP- 3 for the first time on 02.06.2003 and that the complainant had a history of lump in her left breast for the previous six months’
  • the complainant had undergone lumpectomy at Dehradun and the complainant was offered breast conservation surgery, to which she declined and opted for modified radical mastectomy
  • on 05.06.2003, the surgeons of OP- 3 operated on the  complainant and modified radical mastectomy was carried out and the removed specimen was examined histologically and the same did not show presence of any malignant tissue
  • the complainant was discharged from the hospital on 08.06.2003 and was asked to come back on 11.06.2003 for follow-up with opposite party No. 3 on 21.06.2003, 01.10.2003, 17.03.2004, 29.09.2004, 11.06.2005 and 21.12.2005 and was investigated periodically to rule out reoccurrence of the disease. The complainant did not have any complication of surgery and recovered without requiring any further treatment
  • As the complainant was suffering from Stage I cancer and biopsy is the most reliable method to diagnose cancer. The decision to operate on the complainant was based on the biopsy report produced by the complainant herself
  • the report issued by Dr. Lal Path Labs Pvt. Ltd. clearly shows that no breast tissue or breast lump was ever tested at the said laboratory and that there was no wrongful treatment / diagnosis / test reports on their part.
 
COURT HELD:
  • The consumer complaint was dismissed by this Commission vide order dated 28.10.2015. Being aggrieved, the complainant preferred an appeal before the Hon’ble National Commission and vide order dated 31.08.2016 and the consumer complaint was restored and the matter was remanded back to this Commission for adjudication on merits
  • The delay Condonation application was allowed by the court on account of operation, the complainant had to take further treatment for about two years’ and after that, she was bed ridden / on bed rest for quite some time. The complainant was also engaged in different tests / medical advice / recovery treatment after the operation. As soon as the complainant recovered, she contacted a lawyer and asked him to file a consumer complaint before this Commission. The counsel informed the complainant that the limitation for filing the consumer complaint is three years’. There is genuine and bonafide ground for delay in filing the consumer complaint
  • The court observed that if the complainant was suffering from an early stage of cancer, the said fact should have been mentioned in the report and she should have been clearly informed that there are chances that she might be suffering from breast cancer, but the said fact should first be got confirmed by way of second opinion and thereafter, further course of treatment should be followed by the complainant, but there is no such mention in the report, nor there is any remark that the finding is suggestive or the diagnosis found is at the early stage and the complainant need not worry about the same
  • In the report dated 11.12.2003 issued by Dr. Lal Path Labs Pvt. Ltd., it has clearly been mentioned that the impression is suggestive of benign sweat gland tumour, but there is no word like “suggestive” mentioned in the report issued by OP-1 and OP-2. Thus, there has clearly been medical negligence on the part of the OP-1 and OP-2 in issuing a wrong pathology report showing that the complainant is suffering from breast cancer and on account of the said incorrect report, the complainant was operated upon and her left breast was removed
  • The OP-3 has specifically pleaded that not carrying out the surgery would have exposed the complainant to the danger of developing advanced widespread cancer at a later date, which would have been very difficult or even impossible to treat. The action taken by the doctors of OP-3 was in good faith and in the interest of the complainant. Thus, we are of the view that there has been no medical negligence on the part of OP-3
  • However, there was clear-cut negligence on the part of OP-1 and OP-2 in issuing a wrong report, stating therein that the complainant is suffering from breast cancer and hence the OP-1 and OP-2 are liable to compensate the complainant for the wrong committed by them
  • In the peculiar facts and circumstances of the case, we are of the view that the complainant is entitled to compensation of Rs. 10,00,000/- from the OP-1 and OP-2  together with interest @7% p.a. from 29.04.2006, i.e., the date of filing of the consumer complaint till payment and Rs. 10,000/- towards litigation expenses. The consumer complaint is, however, dismissed against OP-3.
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