National Consumer Disputes Redressal
Saleemuddin And Ors. vs Dr. Sunil Malhotra on 3 July, 2006
Equivalent citations: III(2006)CPJ396(NC)
ORDER
S.N. Kapoor, J. (Presiding Member)
1. This judgment shall dispose of two appeals. F.A. No. 458 of 1996 filed by complainants/appellants for allowing the appeal and awarding compensation as well as appeal No. 96/97 filed by Dr. Sunil Malhotra for not only dismissing the complaint of Saleemuddin but also awarding exemplary cost for filing forged and tampered documents for misleading the Court and thereby polluting the 9 purity of justice.
2. Legal heirs of late Alauddin, 7 sons, 3 daughters and a widow Ms. Husnara Begum have filed complaint against Dr. Sunil Malhotra for alleged deficiency in medical service leading h to death of Alauddin claiming Rs. 3,75,000 for the mental agony and pain suffered by them along with Rs. 20,000 for expenses incurred on the treatment and Rs. 10,000 as costs with interest @ 18% p.a. The complainants alleged negligence and deficiency in alleged surgical operation on 23rd June, 1993 carried out on Mr. Alauddin by the opposite party, Dr. Sunil Malhotra.
3. The deceased Alauddin had tumor in his right axilla with supra clavicular lymph modula on right side. He was examined in Citi Lab, New Delhi. Cytology report dated 27th May, 1993 issued by that Laboratory (R/7) showed FNAC of Axillary Lymph Nodes was carried out and patient was advised biopsy to ascertain the nature of the lump. The patient was taken to PGI, Chandigarh on 18th June, 1993 where doctors advised FNAC and chest consultation, etc. Some patients met Saleemuddin, complainant No. 1 and recommended that Dr. Sunil Malhotra was the right person for the treatment. Accordingly he contacted Dr. Sunil Malhotra on 18th, 20th and 21st of June, 1993. Dr. Malhotra examined the patient on 21st June, 1993. On 21st June, 1993 he demanded Rs. 10,000. X-ray, blood and urine tests were carried out and on 22nd June, 1993 he was admitted and during the alleged operation on 23rd June, 1993 by Dr. Sunil Malhotra Axillary tumour of the size of 10" x 8" plus supra clavicular lymph nodes by an incomplete operation under general anaesthesia condition sent the complete tumour with adherent skin to the Laboratory for biopsy. According to the Histopathology report of the Pathologist, Dr. Datta, it was a case of Non-Hodgkin's Lymphoma, Diffuse, Histiocytic High Grade, i.e., fastspreading cancer. Anti-cancer treatment was advised. The patient was admitted to Cancer Ward of AIIMS, New Delhi as per OPD Card dated 5th July, 1993. According to the complainant Saleemuddin, his father underwent anti-cancer treatment for about six months but the malignant wounds did not heal and the incomplete operation hastened the death of the patient. Since complete excision was not made a Fibro Sarcoma eventually fungated through skin and metastases were widely scattered. Consequently, Dr. Sunil Malhotra was liable for damages and compensation, etc.
4. The opposite party, Dr. Malhotra has contested the complaint inter alia on the ground that the patient came to his OPD clinic in Panchkula for consultation without prior appointment on 21st June, 1993 with a huge swelling in his armpit which could be possibly because of tubercular disease (cold abscess) or malignancy. Since Citi Lab, New Delhi had advised biopsy to ascertain the nature of the lump, he admitted the patient on 22nd June, 1993 as a free patient and did not charge Rs. 10,000 as alleged. He carried out only the biopsy procedure under general anaesthesia and removed only a small piece out of the 10" x 8" tumuor being about 4% of the total mass. He referred to the requisition slip dated 23rd June, 1993 sent by him with the specimen to Dr. Datta's report, discharge card dated 26th June, 1993 and AIIMS card in support of his contention that he only carried out biopsy and not any major or minor operation. If he had removed the whole tumour of 10" x 8", as alleged, the same could not be put in a small glass phial as admitted by the complainant Saleemuddin.
5. The complainant had been changing the version and had not approached the State Commission with clean hands. STD call receipt No. 310 purported to be dated 20th June, 1993 was the forged document filed in connection with two complaints filed by the complainants before the District Forum, Bijnore. Both the complaints were dismissed. Original discharge card was tampered with. The prescription card of AIIMS dated 7th July, 1993 and 19th August, 1993 was also torn out at material places, while it was alleged that entire file pertaining to the treatment of patient was destroyed by burning the same.
6. There was no negligence or deficiency in rendering service on his part. Dr. Sunil Malhotra claimed that he acted with all due care and skill in treating the patient who could not live beyond a few weeks if diagnosis had not been correctly made by him. The cause of death was also not known. Dr. Sunil Malhotra stated that his diagnosis and consequent treatment at cancer Hospital, AIIMS, prolonged the patient's life. He further stated that four days before the death, Alauddin was given treatment for dehydration and asked to report on 23rd December, 1993. But he died, possibly either on account of dehydration or any other secondary or unknown cause. As such there was no connection between the biopsy procedure carried out by him and the death of the patient six months after the treatment in AIIMS, New Delhi.
7. The State Commission after considering their respective contention, documents and evidence produced on record dismissed the complaint.
8. We have heard the parties and gone through the record. There is no dispute between the parties that in Cytology report of Citi Lab, New Delhi dated 27th May, 1993 following observations were made:
FNAC of axillary lymph nodes shows two distinct populations. Predominant are fibroepithelial cells. Admixed are few cells with large nuclei, prominent nucleoli and scant cytoplasm. Few lymphocytes are seen in the periphery. No evidence. Advised biopsy to ascertain nature of lump due to paucity of epithelial element.
9. There is no dispute about the fact as per statement of Saleemuddin that he took his father Alauddin for examination at Citi Lab, New Delhi as well as PGI Chandigarh and at both the places patient was advised to obtain biopsy report for further examination. According to his case, he took his father to Chandigarh where doctors advised FNAC and chest consultation, etc. Complainant No. 1 stated that some patient met him in PGI Chandigarh and recommended Dr. Sunil Malhotra. He contacted Dr. Malhotra who demanded Rs. 10,000. As such it appears totally unconeivable that he would phone Dr. Malhotra from Bijnore for he did not know about Dr. Malhotra and he came to know about him only when some person advised him at Chandigarh to take to his father to Dr. Malhotra.
10. As regards whether Dr. Malhotra conducted the biopsy or operation, no receipt of Rs. 10,000 relating to the amount paid to Dr. Malhotra has been produced. It does not appear plausible to accept that he would keep the receipt of Rs. 5 but would not take the receipt of Rs. 10,000. In view of the advice received by him FNAC and chest consultation were suggested without testing the various reports. There is no document after the alleged operation on 23rd June, 1993 to show that the deceased was operated upon. According to the observations of Datta Pathology Laboratory dated 23rd June, 1993 following cross and microscopy observations were noted:
Cross observations:
Large soft doughy while mass about 9 cm. in diameter with lobulations on the cut surface. The fish flesh appearance is striking. The separate piece of skin measures 6 x 3 x 2 cm d it is 1.5 cm thick due to tumour infiltration that cannot be separated from the skin.
Microscopy:
The tumour is a Non-Hodgkin's malignant lymphoma or histiocytic variety. A detailed search for DorothyRed cells in view of the strong admixture of lymphocytes in the tumour has not been successful. A possibility of mixed histiocyticlymphocytic lymphoma has also been considered but is unsubstantiated. The lymphoma has infiltrated the skin diffusely.
In the working formulations classification this tumour could qualify for a high grade lymphoma.
Conclusion :
Non-Hodgkin's lymphoma, diffuse, histiocytic, high grade.
11. There is no dispute about the admission card dated 5th July, 1993 of AIIMS Hospital just after few days of discharge indicating that the deceased Alauddin was suffering from Non-Hodgkin's Lymphoma. He was directed to attend IRCH Lymphoma Clinic.
12. In view of the above circumstances, it is not possible to accept that Dr. Sunil Malhotra removed the axillary tumor 10" x 8" size plus supra clavicular lymph nodes and performed an incomplete operation under general anaesthesia condition and sent the complete tumour with adherent skin to the laboratory through him for biopsy. It may also be noted that this contention could not be accepted in view of the report dated 23rd June, 1993 that the mass specimen was only about 9 cm in diameter and separate piece of adherent skin measuring 6x3x2 cm, being 1.5 cm thick. It is not possible to accept that Dr. Datta would have given incorrect measurement and weight, etc. It is also not possible to accept that incomplete operation was performed.
13. As per Surgical Pathology of Juan Rosai, M.D. following Lymph Node Biopsy Procedure is advised to be followed:
Procedure If the Lymph node is received in the fresh state, cut in halves with a sterile blade; and
(a) take a small portion for culture if an infectious disease is suspected or needs to be ruled out;
(b) make four imprints of the cut surface on alcohol-cleaned slides, fix in methanol, and stain two with haematoxylin-cosin and two with Wright's stain. See instructions for Imprints (Touch preparations).
(c) take a representative cross-section of the entire node 3 mm in thickness, place in a dixative, and send through as biopsy the same day;
(d) fix the rest of the specimen overnight and submit the next as biopsy;
(e) if adequate tissue is available, fix a slice in alternative fixative (such as Zenker's Bouin's or B5);
(f) in cases of suspected lymphoid processes, and if facilities are available, place a 2 x 2 x 1 cm piece (or a piece as large as possible) of fresh tissue in a Petri dish containing a paper filter wet with saline solution and submit for evaluation of cell surface markers (see instructions for Cell surface markersSampling).
2. If the specimen is received already fixed in formalin, cut in 3 mm slices and submit representative sections.
14. It may be mentioned that it has not been suggested that Dr. Sunil Malhotra has failed in observing the procedure for taking biopsy of the lymphnode. Simply because pieces are slightly larger in size would neither convert a biopsy into an operation nor it would cause any deficiency in conducting biopsy.
15. Seeing the circumstances, it is evident that diagnosis by conducting biopsy was necessary to establish the disease to assist in determining appropriate therapy and prognosis. Biopsy was done accordingly.
16. In this regard, a reference to Bailey and Love's Short Practice of Surgery, 14th Edition, 1968 was also made to establish that incomplete operation led to fibro sarcoma eventually fungated through skin metastases leading to death of Alauddin. This does not relate to biopsy but to treatment of cancer. Without Biopsy, operation could not be done. Consequently, it is not relevant for the present purpose. If it remained untreated at Institute of Rotary Cancer Research Hospital, AIIMS for six months and eventually fungated through the skin, Dr. Sunil Malhotra could not be said to be responsible.
17. It may further be mentioned that according to Harrison's Principles of Internal Medicine, Non-Hodgkin's Lymphoma used to be treated with chemotherapy and radiation for malignancy is at higher risk. It also provided that biopsy diagnosis would be appropriate to establish the stage of disease to assist in determining appropriate therapy and prognosis. The role of radiotherapy is limited for lymphoma in stage I or Stage II low grade lymphomas and may be useful palliative role for many points.
18. Dr. Sunil Malhotra is M.S. in Surgery and has worked at Nanavati Hospital and at other hospitals in Chandigarh in different capacities. Till filing the complaint no allegation was made at any stage that any operation was conducted on the deceased by Dr. Sunil Malhotra.
19. The Bolam test has been approved by the Supreme Court as standard to decide medical negligence or deficiency in medical service in other words in Jacob Mathew v. State of Punjab , the Supreme Court observed as follows:
20. The water of Bolam test has even since flown and passed under several bridges, having been cited and dealt with in several judicial pronouncements, one after the other and has continued to be well received by every shore it has touched as neat, clean and a well-condensed one. After a review of various authorities Bingham, L.J. in his speech in Eckersley v. Binnie summarized the Bolam test in the following words : (Con. LR p. 79) From these general statements it follows that a professional man should command the corpus of knowledge which forms part of the professional equipment of the ordinary member of his profession. He should not lag behind other ordinary assiduous and intelligent members of his profession in the knowledge of new advances discoveries and developments in his field. He should have such an awareness as an ordinarily competent practitioner would have of the deficiencies in his knowledge and the limitations on his skill. He should be alert to the hazards and risks in any professional task he undertakes to the extent that other ordinarily competent members of the profession would be alert. He must bring to any professional task he undertakes no less expertise, skill and care than other ordinarily competent members of his profession would bring, but c need bring no more. The standard is that of the reasonable average. The law does not require of a professional man that he be a paragon combining the qualities of polymath and prophet.
(Charlesworth & Percy, ibid Para d 8.04) [Emphasis supplied]
20. Taking into consideration the observations made by the State Commission and the documents on record it is evident that the cause of death was also not known and death of Alauddin could not be related to biopsy conducted by Dr. Sunil Malhotra. Firstly, he was 61 years of age. Secondly, he was treated at Rotary Institute of AIIMS for six months. On 16th December, 1993 he was asked to attend on 23rd December, 1993 at 3.15 p.m. but that time did not come for, he passed away in between.
21. It may also be mentioned that the case of the opposite party was that the deceased was being treated for dehydration four days prior to his death as such the possibility of either the dehydration or any secondary or unknown cause cannot be ruled out.
22. There are other documents also of the Institute of Rotary Cancer Research Hospital, AIIMS but the prescription of 8th July, 1993 and 30th July, 1993 was torn on its corner and there are certain indications indicating selective tearing of the prescription. Besides, further documents from Rotary Institute Cancer Hospital of AIIMS had neither been got produced, nor otherwise proved. It would certainly lead us to draw adverse inference against the complainant to the effect that in case those documents would have been produced they would have gone against the case of complainants for the deceased was treated there for about six months after 23rd June, 1993 and before his death in third week of December, 1993.
23. In the aforementioned circumstances by no stretch of imagination it could be said that death was caused on account of biopsy conducted by Dr. Sunil Malhotra.
24. Thus, it is apparent that the complainants/appellants have utterly failed to establish any deficiency in rendering medical service on the part of Dr. Malhotra.
25. The circumstances mentioned earlier do indicate that due care and caution was not observed by the complainants in filing complaint at Bijnore first and then in Chandigarh. Even the non-production of record of the Institute of Rotary Cancer Research Hospital, AIIMS, New Delhi, glaring inconsistency in between the stand taken by the complainant and production of selectively torn documents on record indicates that this complaint has not been filed with requisite care and caution and it was filed to harass Dr. Sunil Malhotra, with pre-conceived and misconceived notions. Filing of such complaints and persisting in it by filing an appeal would just amount to abuse of the process of Consumer Fora. It may be mentioned that at least we expected from complainant No. 1 Saleemuddin, an Advocate that he would not do so, despite shock and grief due to loss of his father. These facts cannot be ignored.
26. In the aforesaid circumstances, we dismiss the appeal No. 458 of 1996 with cost of Rs. 25,000 in favour of the respondent, Dr. Malhotra.
27. As regards Appeal No. 96 of 1997 filed by Dr. Sunil Malhotra, there was delay of 55 days in filing the appeal. Delay is condoned for the reasons mentioned in the application for condonation of delay particularly in the filing of appeal by the complainant. Though the appellant/opposite party claimed a sum of Rs. 5 lakh, we feel that the claim is exaggerated. One has to keep some margin for human failings on one hand and wrong and misleading advice given by knowledgeable to shift the responsibility or by those who pose to be "know all" but do not have even basic knowledge, and human weakness of proneness to accept such advice. We have already taken note of the estimated cost which might have been incurred by Dr. Sunil Malhotra. Since we are awarding Rs. 25,000 as costs in Appeal No. 458 of 1996 recoverable from the complainant, we are not inclined to award any additional compensation or cost.
28. Appeal No. 458 of 1996 and Appeal No. 96/ 1997both stand decided in above terms.