State Consumer Disputes Redressal Commission
Hridaylal Lal Sahu & Anr. vs Dr. Roshan Upadhyay on 3 November, 2017
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G.)
Complaint Case No.CC/2017/25
Instituted on : 17.04.2017
(1) Hridaylal Sahu, Aged about 51 years,
S/o Hoshiyar Singh (Husband of the Deceased).
(2) Soumya Sahu, Aged about years,
S/o Hridaylal Sahu (Son of the deceased),
(3) Ku. Nisha Sahu, Aged about 21 years,
D/o Hridaylal Sahu (Daughter of Deceased).
All are resident of - Village Bharha, Tehsil Gurur,
District Balod (C.G.) ... Complainants
Vs.
1. Dr.Roshan Upadhyay,
Upadhyay Nursing Home and Maternity Centre,
Near New Bus Stand,
Dhamtari, Tehsil & District Raipur (C.G.)
2. United India Insurance Company Limited,
M.O. Office 44/2, Church Road,
Bhogal, Near Lajpat Nagar (South),
Delhi 110014 ... Opposite Parties
PRESENT: -
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE SHRI D.K. PODDAR, MEMBER
HON'BLE SHRI NARENDRA GUPTA, MEMBER
COUNSEL FOR THE PARTIES:
Shri Sanjay Dadsena, Advocate for the complainants.
Miss Praveen Arora, Advocate for O.P. No.1.
Shri P.K. Paul, Advocate for O.P. No.2.
ORDER
Dated : 3/November/2017 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT. The complainants have filed this consumer complaint under Section 17 of the Consumer Protection Act, 1986 against the OPs seeking following reliefs :-
// 2 // (01) The O.P. No.1 be directed to pay a sum of Rs.50,00,000/-
(Rupees Fifty Lakhs) towards compensation towards treatment expenses of the deceased wife of the complainant No.1 and transportation expenses.
(02) The O.P. No.1 be directed to pay a sum of Rs.20,00,000/- (Rupees Twenty Lakhs) towards compensation for mental agony and financial loss and Rs.5,00,000/- (Rupees Five Lakhs) for expenditure to be incurred in future in the treatment of the deceased and Rs.10,000/- (Rupees Ten Thousand) towards cost of litigation to the complainants. Thus, total amount of Rs.75,10,000/- (Rupees Seventy Five Lakhs Ten Thousand) be awarded in favour of the complainants and against the O.P. No.1.
(03) To direct the O.P. No.1 to pay interest @ 12% on the above amount.
(04) Any other reliefs, this Commission deems fit, be awarded to the complainants.
2. Briefly stated the facts of the complaint of the complainants are that the O.P. No.1 is doctor by profession and he is running hospital in the name and style Upadhyay Nursing Home, which is situated behind Bus Stand, Dhamtari (C.G.). The O.P. No.1 is having M.S. Degree, therefore, he is treating the patients as outdoor patients and is also // 3 // admitting the patients in his hospital for treatment The O.P. No.1 is also conducting surgery / operation in his Nursing Home. The deceased wife of the complainant No.1 felt stiffness and pain in the left breast, therefore, she went to Upadhyay Nursing Home, Dhamtari for treatment. The O.P. No.1 examined the deceased and told that she was having tumour in breast, which will be cured through operation. The O.P. No.1 advised the wife of the complainant No.1 for undergoing operation of the breast. The deceased was not having any problem in moving from one place to another place. On 10.12.2015, the deceased was got admitted in the Nursing Home of the O.P. No.1 and her Thyrocare in T3T4T5H was got tested and on 10.12.2015 she was got admitted for treatment . The operation of tumour of left breast was conducted and the half portion of the part of the breast where tumour was present, was removed. After operation, tumour was sent for biopsy test, but prior to conducting operation, the biopsy test was not got conducted by the O.P. No. and he directly done operation. After operation, instead of decreasing problem, problems to the deceased were increased. The pain in the breast and waist was increased. Thus the condition of the deceased was deteriorating day to day. When the relatives of the deceased asked the O.P. No.1 that the wife of the complainant No.1 will be cured or not, then the O.P. No.1 told that he had conducted major operation and this is a minor operation in which 8 stitches was done.. On 18.12.2015 the deceased was taken to Upadhyay Nursing Home for examination / check up, then O.P. No.1 told that now he removed the half tumour of the // 4 // breast and after removing the entire tumour, she will be cured. On 30.12.2015 the pain was started in the waist to the deceased, then the O.P. No.1 told that it is due to chill and gave medicines and injection and sent to the deceased to Dr. Iqbal Pervej (Orthopaedics) for treatment. The deceased shown sonography report, x-ray to Dr. Iqbal Pervej, then he prescribed medicines, but inspite of taking medicines, the deceased did not get relief from pain. On 31.12.2015 the report of the deceased was received in which it was confirmed that the deceased is having cancer. The O.P. No.1 told the complainant No.1 that at present do not inform the deceased regarding cancer, operation would be done and tumour will be removed. On 07.01.2016 the pain in the waist of the deceased was increased and she was having problem in standing and seating, but there was no relief from treatment of the O.P. No.1. On 25.01.2016, the deceased was admitted in the hospital, where pathologhy test was done and medicines were given, but there was no relief. The O.P. No.1 got conducted abdominal, sonography, skiagram chest P.A., pelvis with both hip, L.S. spin Ap & Lat etc test of the deceased, which was shown to the O.P. No.1 on 02.02.2016, then the O.P. No.1 referred her to Sanjeevani Hospital, Raipur and gave reference to the name of Dr. Yusuf Memon. When no relief was received from the treatment of the O.P. No.1, then on 05.02.2016, the deceased along with complainant No.1 went to Dr. Yusuf Memon of Sanjeevani Hospital for treatment. Dr. Yusuf Memon examined the deceased and got conducted echocardiography, serology investigation, biochemistry, haematology, thyroid pannel test and the sample of // 5 // B.F.C. test was taken from the needle, which was sent to Mumbai for test. The M.R.I. was got conducted in Ramkrishna Care and on 05.02.2016 the deceased was admitted in Sanjeevani. On 08.02.2016, the report of the deceased came from Mumbai. Along with treatment from 11.02.2016 to23.02.2016 and radiation was also done and on that day the deceased was discharged. There was no relief to the deceased from the treatment given by the O.P. No.1, then the deceased took treatment in Sanjeevan Cancer Hospital, Raipur. Various pathology test and biopsy test was got conducted and it was confirmed that the deceased was having breast cancer. After conducting various tests, the doctors informed the deceased that instead of conducting operation, the cancer can be cured by Chemotherapy. The operation was conducting without conducing biopsy test, the wound of cancer spread. To save her life, the deceased went to Dr. Suresh H. Advani of S.L. Raheja Hospital, Mumbai on 01.03.2016 for treatment. The deceased was got admitted in Care Angel Hospital and continuously treatment was given and Chemo was continuously done. The deceased was going to Raipur in every 15 days for Chemo. The deceased was required to go to Mumbai to Dr. Suresh H. Advani, for treatment and chemo every month because it is not possible to go to Mumbai in every 15 days, therefore, in every 21 days, the deceased was to go to Mumbai by plane because the patient was having problem in walking, he was able to walk through walker. After taking Chemotherapy in Mumbai, the deceased is required to take Chemotherapy in Ramkrishna Care Hospital after 7 days. The // 6 // operation of the deceased was conducted by the O.P.No.1 negligently, due to which she suffered physical problem and mental agony. Till now a sum of Rs.50,00,000/- was spent by the complainant No.1 in treatment of the deceased. The deceased is facing financial problem, mental agony and physical problem. If the treatment of the deceased was started by the O.P. No.1 by conducting biopsy test, then certainly the deceased would not have suffered problem. The O.P. No.1 is not a cancer specialist and in such situation he was required to refer the deceased to Higher Cancer Hospital after conducting biopsy test, but by not doing so, the O.P. No.1. committed medical negligence. Hence the complainants filed instant complaint.
3. The O.P. No.1 filed his written statement and averred that earlier the deceased was taking treatment from another doctor but there was no relief, therefore, she came to O.P. No.1. The deceased was feeling stiffness in left breast and pain and there was a tumour. In the preliminary examination, the O.P. No.1 found that there is tumour in the left breast, in such situation Excisional Biopsy was done it means the tumour was removed and the same was sent for examination to Dr. Aamir Hussain, Pathologist (M.D.) of Raipur. This test is called Histopathological Test. The Excisional Biopsy was done to remove the tumour, so that after receiving Biopsy Report, there will be help in the further treatment. The deceased was got admitted in the Hospital on 10.12.2015 for Excisional Biopsy and on 12.12.2015 she was discharged and Excisional Biopsy was done and tumour was removed. On // 7 // 31.12.2015 the Excisional Biopsy Report of breast tumour of the deceased was received in which it was confirmed that the deceased was having breast cancer. The deceased came to O.P. No.1 on 30.12.2015 having complaint of pain in waist, then the O.P. No.1 sent her to Dr. Iqbal Pervez, Orthopaedician which was a right decision. On 31.12.2015, the Excisional Biopsy Report of breast tumour was received in which it was confirmed that the deceased was having breast cancer. The O.P. No.1 immediately gave information regarding the same to the relatives of the deceased and also done counselling regarding cancer with the family members of the deceased and it was told that do not inform regarding cancer to the deceased because she would be in terror. The family members of the deceased were directed to take her Raipur to any Cancer Expert. The O.P. No.1 referred the deceased to Sanjeevani Cancer Hospital, Raipur. Dr. Yusuf Memon, who is a cancer expert, after examination found that the deceased was having cancer and the cancer was also spread in the bone. After seeing all test reports, the O.P. No.1 referred the deceased to Sanjeevani Hospital, Raipur. The O.P. No.1 referred the deceased to Sanjeevani Hospital, Raipur and thereafter Dr. Yusuf Memon startedd treatment of the deceased and the treatment papers of Dr. Yusuf Memon have been filed by the deceased in instant case. The O.P. No.1 firstly done Excisional Biopsy and its report came on 31.12.2015 and for the first time it came to know that the deceased is suffering from breast cancer. If O.P. No.1 did not conduct biopsy, then it could not be ascertained that the deceased is suffering from breast cancer. Due to the O.P. No.1, // 8 // the deceased came to know regarding the main disease, whereas initially the deceased was taking treatment from another doctor since and the main disease could not be ascertained. The O.P. No.1 conducted biopsy test and after receiving Biopsy Report, the sdeceased was sent to Cancer Centre, Raipur. The O.P. No.1 provided high standard quality services to the deceased. The deceased herself admitted in the complaint that the O.P. No.1 referred her to Sanjeevani Hospital, Raipur. The deceased also admitted this fact that on 31.12.2015, when report was received, it came to know that the deceased was having breast cancer. The O.P. No.1 conducted Excisional Biopsy of the deceased and from the report of the Excisional Biopsy, it was confirmed that the deceased is having cancer and the O.P. No.1 referrer her Cancer Centre. The O.P. No.1 did not commit medical negligence while treating the deceased. When the deceased came to O.P. No.1 then it came to know that she is having cancer and immediately treatment was started. The complainants are not entitled to get any compensation from the O.P. No.1 because the O.P. No.1 did not commit any negligence in treatment of the deceased, but the O.P. No.1 informed the deceased regarding his main disease and started his treatment. No cause of action accrued to the deceased from 10.12.2015 to 11.12.2015 and also no cause of action accrued on 14.11.2016. The complainants are not entitled to receive any reliefs from this Commission. The O.P. No.1 conducted Excisional Biopsy and removed the tumour, which was sent to Dr. Aamir Husain, Pathologist of Raipur for Histopathological Test. After examination on 31.12.2015, Dr. Aamir // 9 // Hussain in his report confirmed that the deceased was having cancer and thereafter the O.P. No.1 himself referred the deceased to Cancer Hospital, Raipur. Due to the O.P. No.1, the deceased and her relatives came to know that deceased is suffering from cancer and treatment was started. The O.P. No.1 conducted biopsy of the deceased and removed tumour and did not conduct any operation of the cancer. On the basis of this report, her treatment was started. Therefore the complaint filed by the complainants, is liable to be dismissed. The O.P. No.1 obtained Professional Indemnity Policy No.0423822715P105027455 from United India Insurance Co. Ltd. New Delhi which was effective for the period from 01.08.2015 to 31.07.2016. Thus the O.P. No.1 is insured with the Insurance Company. In these circumstances, for any loss/damages to the O.P. No.1, United India Insurance Co. Ltd. New Delhi is liable and it is necessary party in the instant case. The O.P. No.1 discharged his duty as per medical principles and prescribed standard with full experience and did not commit any mistake. The complaint is liable to be dismissed with cost.
4. The O.P. No.2 has filed its written statement and averred that the complainants have filed the instant complaint against the O.P. No.1 Dr. Roshan Upadhyay and the O.P. No.2 The complaint is pre- mature against the O.P. No.2, therefore, the complaint is liable to be dismissed against the O.P. No.2. The deceased Smt. Jaishri Sahu has not paid any premium to the O.P. No.2 and did not obtain insurance cover, therefore, there is no privity of insurance contract between the // 10 // deceased and O.P. No.2, hence she is not consumer of the O.P. No.3, the complaint against the O.P. No.2 is not maintainable and is liable to be dismissed. In the instant complaint the complainants have not mentioned in the complaint and have not proved that the O.P. No.2 has committed any deficiency in service, therefore, on this ground, the complaint is not maintainable and is liable to be dismissed against the O.P. No.2. The complainants or deceased Smt. Jaishri Sahu have not submitted any claim before the O.P. No.2 and no dispute has arisen between both the parties, from which complaint receives base. The O.P. No.2 has not accepted or rejected the claim of the complainants, therefore, the O.P. No.2 is not at any fault, hence no claim can be instituted against it. In the complaint, the complainant averred that O.P. No.1 Dr. Roshan Upadhyay has committed medical negligence, but the complainants have not proved that the O.P. No.1 is insured with the O.P.No.2, therefore, the O.P. No.2 is not liable t compensate the complainants for the mistake of doctor. The complaint is liable to be dismissed against O.P. No.2.
5. The complainants have filed documents. Annexure A-1 is registered notice dated 14.11.2016, Annexure A-2 is Discharge Card dated 10.12.2015, Annexure A-3 is Sonography Report dated 02.02.2016, Annexure A-4 is Test Report dated 02.02.2016, Annexure A- 5 is test report dated 30.12.2015, Annexure A-6 is L.S. Spine AP & LAT Report dated 30.12.2015, Annexure A-7 is test report dated 12.12.2015, Annexure A-8 is Discharge Summary issued by Comprehensive Blood // 11 // and Cancer Center, Annexure A-9 to A-11 are investigation report dated 05.02.2016 issued by Sanjeevani Hospital, Annexure A-12 is Radiation Oncology Receipt dated 17.02.2016 issued by C.B.C.C., Annexure A-13 & A-14 are Radiation Oncology Receipt dated 10.02.2016 issued by C.B.C.C., Annexure A-15 to A-17 are Investigation Report dated 05.02.2016, Annexure A-18 is Investigation dated 05.02.2016, Annexure A-19 and A-20 are Echocardiography Report, dated 05.02.2016, Annexure A-21 is prescription slip issued by Sanjeevani dated 05.02.2016, Annexure A-22 to A-24 is New Patient Evaluation Form, Annexure A-25 is Consent Form, Annexure A-26 to A-28 is medicine slip, Annexure A-29 to A-38 are receipts, inpatient final bill, inpatient final bill details, consultation bill cum receipt, inpatient final bill summary, issued by Ramkrishna Care Hospital, Annexure 39 is treatment slip dated 10.02.2016 issued by Sanjeevani Hospital, Annexure A-40 is Admission form, Annexure A-41 is treatment paper of Sanjeevani Hospital, Annexure A-42 is Discharge Summary of Comprehensive Blood and Cancer Center, Annexure A-43 to 43 are treatment papers, Annexure A-44 is CT Scan Receipt, Annexure A-45 to A-49 are treatment papers, Annexure A-50 is report dated 05.02.2016, Annexure A-51 is Cash Receipt dated 05.02.2016, Annexure A-52 is estimate details, Annexure A-53 is MRI Report dated 05.02.2013, Annexure A-54 is CECT Thorax report, Annexure A-55 is MRI report dated 05.02.2016, Annexure A-56 to A-59 are test reports, Annexure A-60 is Discharge Summary issued by Sanjeevani Hospital, Annexure A-61 is Cash Bill, Annexure A-62 is Bed Transfer Slip, // 12 // Annexure A-63 to A-79 are medicine and treatment slips issued by Sanjeevani Hospital from 10.02.2016 to 31.08.2016, Annexure A-80 to A- 110 are treatment slips issued by Sushrut Hospital, Mumbai, Annexure A-111 to 163 are treatment slips issued by S.L. Raheja Hospital for the period from 01.3.2016 to 20.05.2016, Annexure A-164 to A-194 are Discharge Summary and medicine and treatment slips issued by Ramkrishna Care Hospital, Annexure A-195 to A-204 are bills etc., Annexure A-205 is receipt issued by Ramkrishna Care Hospital, Annexure A-206 are air tickets etcs. death certificate, aadhar card.
6. The O.P. No.1 has filed documents. Documents are Discharge Card of the patient dated 12.12.2015, admission card dated 10.12.2015 to 12.12.2015, Consent letter dated 10.12.2015, Breast Mass Excision Notes dated 10.12.2015, Ultra Sound Report of the patient dated 09.12.2015, Pathology report of the patient dated 09.12.2015, Biopsy report of the patient dated 31.12.2015, Registration slip of the patient dated 10.12.2015, blocking slip dated 10.12.2015 of the patient, discharge slip of the patient dated 12.12.2015, copy of insurance policy for the period from 01.08.2015 to 31.07.2016.
7. The O.P. No.2 has not filed any documents.
8. Shri Sanjay Dadsena, learned counsel appearing for the complainants has argued that the wife of the complainant No.1 and mother of the complainant No.2 and complainant No.3, was admitted in the hospital of the O.P. No.1, at that time she was having stiffness // 13 // and pain in her left breast. After examination, the O.P. No.1 told the complainant No.1 that it is essential to conduct surgery of the breast of the deceased Smt. Jaishri Sahu. On 10.12.2015, the deceased was got admitted in the hospital of the O.P. No.1 and T3T4T5H test was done. The O.P. No.1 told the complainant that when the tumour is removed from breast of the deceased by conducting operation, she will be cured, therefore, operation was conducted by the O.P. No.1 and she was discharged from the Hospital of the O.P. No.1 on 12.12.2015, but the O.P. No.1 had not sent the tumour for biopsy test prior to operation of the deceased and the deceased was having various problems and problems were increased, then the deceased again went to the hospital of the O.P. No.1, and the O.P. No.1 told the complainant major operation is required to be done. Thereafter complainant No.1 took the deceased in Sanjeevani Hospital, Raipur for treatment where it is diagnosed that the deceased was having Cancer in her breast. The O.P. No. did not diagnose the above disease and without obtaining biopsy test, he conducted operation of the deceased. Due to negligence of the O.P. No.1, the deceased was suffering from the above disease, therefore the complainant No.1 took the deceased to Dr. Suresh H. Advani of S.L. Raheja Hospital, Mumbai on 01.03.2016 for treatment. The deceased was got admitted in Care Angel Hospital where continuously treatment was given to the deceased and Chemotherapy was also done. The deceased was coming to Raipur in every 15 days for Chemotherapy . The deceased died due to wrong treatment given by the O.P. No.1. The O.P. No.1 committed medical negligence and // 14 // deficiency in service, therefore, the complainants are entitled for getting compensation from the O.P. No.1, as prayed in the complaint
9. Miss Praveen Arora, learned counsel appearing for the O.P.No.1 has argued that the deceased was feeling stiffness and pain in left breast and was having tumour. After examination, it was found by the O.P. No.1 that the deceased was having tumour in her left breast, therefore, Excisional Biopsy was done and tumour was removed and the same was sent to Dr. Aamir Hussain, Pathologist (M.D.) . This test is called Histopathological Test. The Excisional Biopsy was done to remove the tumour, so that after receiving Biopsy Report, there will be help in the further treatment of the deceased. The deceased was got admitted in the hospital of the O.P. No.1 on 10.12.2015 for Excisional Biopsy and she was discharged on 12.12.2015 and Excisional Biopsy was done and tumour was removed. After Biopsy test it was confirmed that the deceased was having breast cancer, therefore, she was referred to Sanjeevani Hospital. Dr. Yusuf Memon, who is Cancer Expert, after examination found that the deceased was having Cancer and the Cancer was spread in the bone. The O.P. No.1 did not commit and medical negligence and O.P. No.1 treated the deceased according to the medical norms and medical literature. The O.P. No.1 obtained Professional Indemnity Policy No.0423822715P105027455 from United India Insurance Co. Ltd. New Delhi, which was effective for the period from 01.08.2015 to 31.07.2016. Thus the O.P. No.1 is insured with the Insurance Company. .07.2016. Thus the O.P. No.1 is insured with the // 15 // Insurance Company. The O.P. No.1 did not commit medical negligence while treating the deceased, therefore, the complaint is liable to be dismissed against the O.P. No.1.
10. Shri P.K. Paul, learned counsel appearing for the O.P. No.2 has supported the arguments advanced by learned counsel for the O.P. No.1.
11. We have heard learned counsels appearing for both the parties and have also perused the documents filed by them in the complaint case.
12. It is admitted fact that the deceased Smt. Jaishri Sahu, who was wife of the complainant No.1 and mother of the complainant No.2 & 3 was got admitted in the hospital of the O.P. No.1 on 10.12.2015 and T3T4T5H was done on 10.12.2015.
13. According to the complainants, the O.P. No.1 done the operation without taking proper care and without obtaining Biopsy Test Report, therefore, the Cancer was spread and deceased had suffered from acute pain in her waist. Therefore, abdominal Sonography, skiagram chest P.A., Pelvis with both hip, L.S. spin Ap & Lat test were got conducted by the O.P. No.1. The complainant No.1 took the deceased in Sanjeevani Hospital, where Dr. Yusuf Memon examined the deceased and got conducted echocardiography, serology investigation, biochemistry, haematology, Thyroid panel test and he found that the deceased was suffering from breast cancer, which was // 16 // spread in the bone also. The cancer as spread in the bone due to negligence of the O.P. No.1, therefore, the complainant No.1 took the deceased to S.L. Raheja Hospital, Mumbai on 01.03;.2016 for treatment. The deceased was got admitted in Care Angel Hospital for 15 days where Chemotherapy was done.
14. Now we shall examine whether the O.P. No.1 committed medical negligence while treating the deceased Smt. Jaishri Sahu ?
15. In Pally Srikanth & Ors. Vs. M/s. Krishna Institute of Medical Sciences Ltd. & Ors., 2016 (4) CPR 46 (NC), Hon'ble National Commission has observed that "Onus of proving alleged negligence in treatment of a patient lies with person alleging medical negligence."
16. In Prayag Hospital & Research Center Pvt. Ltd. & Anr. Vs. Vijay Pal, 2016 (2) CPR 2 (NC), Hon'ble National Commission has observed that "complainants must provide materials to prove allegation of medical negligence."
17. In Ashok Kumar Pathak Vs. Dr. Swarnava Roy and Anr. 2017 (1) CPR 251 (NC), Hon'ble National Commission has observed that "Medical Negligence must be proved by expert opinion."
18. In Dr. Laxman Balkrishna Joshi v. Dr Trimbak Bapu Godbole and another, AIR 1969 Supreme Court 128, Hon'ble Supreme Court has observed thus :-
"11. The duties which a doctor owes to his patient are clear. A person who holds himself out ready to give medical advice and // 17 // treatment impliedly undertakes that he is possessed of skill and knowledge for 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 in 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 to 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 care and competence judged in the light of the particular circumstances of each case is what the law requires : (cf. Halsbury's Laws of England, 3rd ed. Vol. 26 p. 17). The doctor no doubt has a discretion in choosing treatment which he proposes to give to the patient and such discretion is relatively ampler in cases of emergency..........."
19. In this context it is relevant to cite case of Kusum Sharma & ORS. Vs. Batra Hospital & Research Centre & ORS., I (2010) CPJ 29 (SC) in which the conclusions under different case laws on the subject of medical negligence have been summarized as under :-
'Para" 90" In Jacob Mathew's case (supra), conclusions summed up by the Court were very apt and some portions of which are reproduced hereunder:
(1) Negligence is the breach of a duty caused by omission to do something which is a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. The definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P. Singh) referred to hereinabove, holds good.
Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: 'duty', 'breach' and 'resulting damage'.
// 18 // (2) Negligence in the context of medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed.
(3) The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence. Para "94'. On scrutiny of the leading cases of medical negligence both in our country and other countries especially United Kingdom, some basic principles emerge in dealing with the cases of medical negligence. While deciding whether the medical professional is guilty of medical negligence following well known principles must be kept in view:
I. Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.
// 19 // II. Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.
III. The medical professional expected to bring 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 care and competence judged in the light of the particular circumstances of each case is what the law requires.
IV. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
V. In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.
VI. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which is honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure.
Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence.
VII. Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence.
Merely because the doctor chooses one // 20 // course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.
VIII. It would not be conducive to the efficiency of the medical profession if no Doctor could administer medicine without a halter round his neck.
IX. It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessary harassed or humiliated so that they can perform their professional duties without fear and apprehension.
X. The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals/hospitals or clinics for extracting uncalled for compensation.
Such malicious proceedings deserve to be discarded against the medical practitioners.
XI. The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals."
20. The O.P. No.1 has filed Literature on Performance and Practice Guidelines for Excision Breast Biopsy, which has been obtained through internet, in which it is mentioned thus :-
"Article II - Indications Historically surgical excision was the "gold standard" for the diagnosis of palpable breast masses and, early in the era of mammography // 21 // screening, for the diagnosis of suspicious nonpalpable lesions. In contemporary practice, core needle biopsy (guided by mannography, ultrasound, or MRI) has largely, but not completely, replaced surgical excision.
Article IV - Procedural details and prerequisites A. Prerequisites ...................
B. Technique Excisional breast biopsy is typically done under local anesthesia with sedation. For palpable lesions consistent with fibroadenoma, a small incision, a very conservative excision (or enucleation), and placement of the specimen in formalin are sufficient...."
Article V - Documentation .....................
Article VI - Equipment specification and quality control .....................
Article Vii - Quality assessment / improvement A. Core biopsy is sufficient for diagnosis of most benign breast lesions and > 90% of breast cancers. Diagnostic excisional biopsy should be the exception, not the rule.
B. ...................
C. ...................
D. ...................
E. ..................."
21. The O.P. No.1 has filed literature on Biopsy, which has been obtained through internet, in which it is mentioned thus :-
"Biopsy Techniques Different techniques can be used to perform biopsy, and it's likely that your surgeon will try to use the least invasive procedure possible - the one that involves the smallest incision and the least amount of scarring. However, the choice of procedure really depends on your // 22 // individual situation. Biopsy can be done by placing a needle through the skin into the breast to remove the tissue sample. Or, it can involve a minor surgical procedure, in which the surgeon cuts through the skin to remove some or all of the suspicious tissue."
Fine needle aspiration biopsy ...................
In cases where the lump cannot be felt, the surgeon or radiologist may need to use imaging studies to guide the needle to the right location. ...............................
Core needle biopsy ........................
If the lesion cannot be felt through the skin, the surgeon or radiologist can use an image guided technique such as ultrasound-guided biopsy or stereotactic needle biopsy............... ..............However, a needle biopsy has a higher risk of a "false negative" result - a result suggesting that cancer is not present when really is.
Incisional Biopsy ...................
...................
Your doctor may recommend incisional biopsy if a needle biopsy is inconclusive - that is, the results are unclear or not definite - or if the suspicious area is too large to sample easily with a needle. As with needle biopsy, there is some possibility that incisional biopsy can return a false negative result.....
// 23 // Excisional biopsy Excisional biopsy, the most involved form of biopsy, is surgery to remove the entire area of suspicious tissues from the breast. In addition to removing the suspected cancer, the surgeon generally will remove a small rim of normal tissue around it as well, called a margin. ....................
Excision biopsy is the surest way to establish a definite diagnosis without getting a false negative result."
22. The O.P. No.1 has filed literature on Surgical Biopsies, which has been obtained through internet, in which it is mentioned thus :-
"Types of Surgical Biopsies Most surgical biopsies are excisional biopsies.
Advantages of excisional biopsy Excisional biopsy is accurate and gives few false negative results."
23. The O.P. No.1 has filed Literature on "Current Diagnosis and Treatment - Surgery Thirteenth Edition by Gerard M. Doherty, in which it is mentioned thus :-
" CHAPTER 17 Biopsy may be excisional or by needle cytology, but if cytology appears benign and the mass persists, it should be excised. Large needle (core needle) biopsy removes a ..................As in the case of any needle biopsy, the main problem is sampling error due to improper positioning of the needle, giving rise to a false negative test resut. .....
// 24 // Open Biopsy under local anesthesia as a separate procedure prior to deciding upon definitive treatment is the most reliable means of diagnosis. Needle biopsy or aspiration, when positive, offers a more rapid approach with less expense and morbidity, but when nondiagnostic it must be followed by open biopsy. It generally consists of an excision biopsy, which is done through an incision with the intent to remove the entire abnormality, not simply a sample. Additional evaluation for metastatic disease and therapeutic options can be discussed with the patient after the histologic or cytologic diagnosis of cancer has been established. In situ cancers are not easily diagnosed cytologically and usually require excisional biopsy. .................
In general, the two-steps approach - outpatient biopsy followed by definitive operation at a later date - is preferred in the diagnosis and treatment of breast cancer, because patients can be given time to adjust to the diagnosis of cancer, can consider alternative forms of therapy, and can seek a second opinion if they wish. There is no adverse effect from the short delay of the two-step procedure.
24. The O.P. No.1 has filed Oxford Textbook of Surgery Volume I, in which it is mentioned thus :-
"Care biopsy ............... This technique has to be performed under local anaesthetic, but it has the advantage that it produces a histological rather than a cytological specimen. The author has found the technique somewhat traumatic and liable to miss small scirrhotic tumours, although others have had great success with this method. As the core biopsy produces a histological rather than a cytological diagnosis, in situ disease can be differentiated from invasive disease. Greater appraisal of the grade and type of tumour is also possible, although sampling errors are likely with such a small specimen.
// 25 // Open surgical biopsy ..................... Its advantage is that its provides a definite method of proving of excluding malignant disease.
Open surgical biopsy and frozen section Frozen section evaluation of an excised specimen at the time of definitive surgery has become less common with the more widespread use of fine needle aspiration biopsy......
A further reason for the decline in popularity of frozen section techniques is the very reasonable change in the surgical approach to women with breast cancer......
Mammography The last decade has witnessed a huge improvement in imaging methods for breast disease and a high level of sensitivity and specificity is now available using modern mammographic techniques. The classic features of breast cancer on mammography are tissue asymmetry, mass effect, microcalcification, skin thickening and nipple inversion. One or more of these features may be present, the most reliable being a combination of mass effect with localized microcalcification."
25. In the Literature relating to Excisional Surgery for Cancer, which has been obtained through internet, it is mentioned thus :-
"Excisional Surgery for Cancer :
Abstract Excisional surgery is one of the primary treatment modalities for cancer. Minimal residual disease (MRD) is the occult neoplastic disease that remains in situ after curative surgery. There is increasing evidence that tumour removal alters the growth of MRD, leading to perioperative tumour growth. Because neopalasia is a systemic // 26 // disease, this phenomenon may be relevant to all patients undergoing surgery for cancer."
Why it is done "Surgery is the most common treatment for melanoma. Sometimes lymph nodes may be removed at the same time to check them for cancer. Surgery also may be done to remove lymph nodes that have cancer or to remove tumours that may have spread to other parts of the body."
26. The O.P. No.1 has filed literature on Excisional Biopsy, in which it is mentioned thus :-
"Excisional biopsy is the surest way to establish a definite diagnosis without getting a false negative result. Also, having the entire lump removed may provide you with some peace of mind. However, excisional biopsy is more like regular surgery, and it will leave a scar and require more time to recover. Like incisional biopsy, excisional biopsy is performed with local anesthesia."
27. The O.P. No.1 has filed literature on Short Practice of Surgery 26th Edition, Edited by Normal S. Williams, Chrostopher J.K. Bulstrode and P. Ronan O'Connel, in which it is mentioned thus :-
"When the diagnosis of carcinoma is in doubt .......
If there is doubt on clinical, cytological or radiological examination, it is essential to obtain a tissue diagnosis. "
// 27 //
28. The O.P. No.1 has filed literature on Fine Needle Aspiration Cytology of the Breast - The Nonmalignant Categories, in which it is mentioned thus :-
"4. False-Negative FNAC ...... Nevertheless, there still exists a significant false negative rate for FNAC, in the range of 1.2 - 10.6% (Table 4). These may lead to missed / delayed diagnosis and treatment [25], sometimes with adverse clinical outcome. This has become a major concern, prompting, on the side of the laboratory and pathologist, a re-evaluation of the adequacy limitation, referral system, and processing techniques.
................. In the true false negative factors, the denominators are poor sampling technique, mislocalization of the tumor, or the presence of a well defined tumor demonstrating minimal atypia [29, 30]. The widespread adoption of breast screening and advances in imaging techniques also resulted in the detection of small lesions, and understandably, FNAC of these small lesions has a significant risk of missing these lesions, leading to potentially false-negative results.
5. False-Positive FNAC ............., false positive cases range from 0% to 2% (Table 6), in most studies reporting a 100% positive predictive value. Among the reported cases, the common lesion giving a false-positive aspirate is ductal hyperplasia or lobular hyperplasia. This finding is also in consonance with previous reports that fibrocystic changes and pregnancy-related breast masses account for false positive findings [25]...........
6. Summary ...................The adequacy of smears is influenced by the nature of the lesions, experience of the aspirator, and access to the available imaging modality............. Exceptions occur in cystic and fibrotic // 28 // lesions that are inevitably hypocellular. Degenerative changes would render the smear to be difficult to interpret. Benign breast lesions are usually easy to diagnose when their characterstic cytologic patterns are obvious. Hypocellularity, degenerated apocrine cells, necrosis, and epithelial hyperplasia are some of the factors that may be encountered in evaluating a difficult smear, mimicking atypical or malignant lesions. The false negative cases in breast FNAC, although few, are commonly due to poor sampling technique, poor tumor localization, and the presence of a well-differentiated histology of the tumor. .... Thus, in the interpretation of breast FNAC, all these factors should be considered before a benign diagnosis is being rendered.
29. Looking to the above literatures, it appears that the historically surgical excision was the "gold standard" for the diagnosis of palpable breast masses. Looking to the literatures, it appears that Excisional Biopsy, the most involved form of biopsy, is surgery to remove the entire area of suspicious tissues from the breast. The Escisional biopsy is the surest way to establish a definite diagnosis without getting a false result.
30. In the instant case, the O.P. No.1 did not conduct operation of the breast of the deceased, but the O.P. No.1 only conducted surgery for biopsy purpose. Document Annexure 3 is Abdominal Sonography Report dated 02.02.2016, in which it is mentioned that deceased Mrs. Jaishree Sahu was referred by Dr. R. Upadhyay for Sonography. Dr. Ramesh Khandelwal done Sonography on 02.02.2016. Skiagram Chest P.A. View was also done by Dr. Ramesh Khandelwal on 02.02.2016. Pelvis with Both HIP, and L.S. Spine AP & LAT was also done by Dr. Ramesh Khandelwal on 03.12.2015. The complainants have also filed // 29 // documents relating to treatment of the deceased at Sanjeevani CBCC USA Cancer Hospital, Raipur (C.G.). The complainants have filed New Patient Evaluation Form (Annexure A-22) in which it is specifically mentioned that deceased Smt. Jayshri Sahu, was referred by Dr. Roshan Upadhyay, Upadhyay Nursing Home, Dhamtari (C.G.) and against the column of presenting complaints, it is mentioned "Lump in Left Breast". Biopsy was done. Document Annexure 53 is MRI Report dated 05.02.2016, document Annexure 54 is CECT Thorax Report dated 05.02.2016.
31. The complainants have filed Discharge Summary of the deceased, issued by Sanjeevani CBCC USA Cancer Hospital, Raipur (C.G.), which is marked as Annexure 60, in which it is mentioned thus :-
"Diagnosis : Carcinoma Breast (Post Lumpectomy) with Bona Met.
Treatment : Palliative readiotherapy done.
At presentation :
Patient is a case of Ca. Breast post lumpectomy with Bone met/cord compression, diagnosed and evaluated at our hospital. Now admitted for palliative radiotherapy."
32. The complainants have also filed documents regarding treatment given by Dr. S. H. Advani to the deceased. In Discharge Summary dated 13.04.2016 issued by Dr. S.H. Advani, Daycare Angels, which is marked as Annexure -107, it is diagnosed that the deceased // 30 // Mrs. Jaishri Sahu, was suffering from Breast Cancer (Left). The O.P. No.1 also diagnosed the same.
33. The O.P. No.1 has filed copy of Admission Chart issued by Upadhyay Surgical, Maternity and Stone Centre, in which it is mentioned that the deceased was treated as Smart Card Holder. In investigation, it was found that there was swelling over (L) Breast. Feeling of some vague lump (L) Breast Mile dull aching pain near Breast. Slow growing etc. The treatment advised was Post for Excisional Biopsy of Lump to r/o Fibfucystic disease or other tumour to. Then plan for further treatment after Biopsy Report. Rfog explained.
34. Looking to the above documents, it appears that the O.P. No.1 only done Excisional Biopsy for confirmation of the cancer to the deceased, which is a prescribed method to diagnosis Cancer disease. The complainants are unable to prove that the surgery of the deceased was done by the O.P. No.1 without obtaining Biopsy Report, whereas it appears that the O.P. No.1 only done Excisional Biopsy of the deceased, which does not come within purview of operation and before conducting Excisional Biopsy, the O.P. No.1 duly obtained Consent Letter from the deceased Smt. Jaishri Sahu and complainant No.1 Hridaylal Sahu at about 11.00 A.M. on 10.12.2015. It is also specifically mentioned in the OT Notes for Breast Mass Excision dated 10.12.2015 that the Lump was separated from skin and breast and the same was sent for Histopathological test. Dr. Chandra Shekhar Dhruwa (MD) // 31 // (Consultant Radiologist) also advised for biopsy. Sanjeevani Hospital, Ramkrishna Care Hospita and Dr. Suresh H. Advani, have not mentioned in their reports that the O.P. No.1 had wrongly operated or conducting Excisional Biopsy wrongly or removed lump in wrong way.
35. The complainants have not obtained any expert opinion from the Medical Board, therefore, the mere allegations of the complainants are not sufficient to prove that the O.P. No.1 conducted medical negligence while conducting treatment of the deceased Smt. Jaishri Sahu.
36. The complainants have not been able to prove that the O.P. No.1 committed any medical negligence, therefore, the complainants are not entitled to get any compensation from the OPs.
37. Therefore, the complaint filed by the complainants against the OPs, is liable to be dismissed, hence the same is dismissed. Parties shall bear their own costs.
(Justice R.S. Sharma) (D.K. Poddar) (Narendra Gupta)
President Member Member
03 /11/2017 03/11/2017 03 /11/2017