State Consumer Disputes Redressal Commission
Smt.Yashoda Goyal vs Dr.Ahuja Pathology And Imaging Center on 13 March, 2018
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND
DEHRADUN
CONSUMER COMPLAINT NO. 04 / 2006
Smt. Yashoda Goyal W/o Sh. Narendra Kumar Goyal
R/o 14, Karanpur
Dehradun
......Complainant
Versus
1. Dr. Ahuja's Pathology & Imaging Centre
7-B, Astley Hall
Dehradun
2. Dr. Alok Ahuja S/o not known
7-B, Astley Hall
Dehradun
3. Rajiv Gandhi Cancer Institute and Research Centre
Sector-V, Rohini
Delhi through its Chairman
......Opposite Parties
Sh. Yudhvir Handa, Learned Counsel for the Complainant
Sh. Rajeshwar Singh, Learned Counsel for Opposite Party Nos. 1 and 2
Sh. Mohit Singhal, Learned Counsel for Opposite Party No. 3
Coram: Hon'ble Mr. Justice B.S. Verma, President
Mrs. Veena Sharma, Member
Dated: 13/03/2018
ORDER
(Per: Justice B.S. Verma, President):
This consumer complaint under Section 12 read with Section 18 of the Consumer Protection Act, 1986 has been filed by Smt. Yashoda Goyal (hereinafter referred to as "complainant") against the opposite parties, alleging medical negligence on their part in curing the complainant.2
2. Briefly stated the facts of the case are that the complainant was having pain near her breast. Her husband was employed in Oil & Natural Gas Corporation Limited as Executive Engineer. The complainant had visited Dr. Pradeep Sharda, M.S., F.A.I.S. and F.I.C.S. for check-up. After check-up, the complainant was referred by Dr. Pradeep Sharda to opposite party No. 1 - Dr. Ahuja's Pathology & Imaging Centre for further tests. Opposite party No. 2 - Dr. Alok Ahuja is running the Pathology & Imaging Centre under the name and style of opposite party No. 1. Dr. Alok Ahuja is a qualified doctor and is M.B.B.S., D.M.R.E., M.D. and Consultant Radiologist. The opposite party No. 2 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 opposite party No. 2 took the specimen of breast lump 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 opposite party No. 3 - Rajiv Gandhi Cancer Institute and Research Centre for treatment. The complainant visited opposite party No. 3 for further check-up and during treatment and diagnosis, no breast lump was taken and the opposite party No. 3, relying upon the report dated 20.05.2003 of opposite party Nos. 1 and 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 opposite party No. 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 opposite party No. 3 - Institute were afraid of being 3 questioned and immediately asked the complainant's attendant to bring the remaining tissue for market study. The remaining tissues, which were kept at opposite party No. 1 - Centre were taken for review of outside slide for biopsy again and in the report dated 26.06.2003 issued by opposite party No. 3, it was observed that, "Three of the slides show skin with unremarkable epidermis and dermis showing well circumscribed lobular mass composed of round to oval cells with eosinophilic cytoplasm and centrally places round nuclei. Some of the cells have clear cytoplasm. Compressed cuboidal to flattened cell lined Lumina are noted in the midst of lobules. The stroma is compressed. No breast tissue is noted. No evidence of malignancy is seen. The fourth slide shows a strip of muscular tissue lined by a layer of columnar epithelium thrown in papillary projections. No specific lesion is noted".
3. In order to confirm the reports, the complainant got the slides checked at Dr. Lal Path Labs Pvt. Ltd., 'Eskay House', 54, Hanuman Road, New Delhi, who per their report dated 11.12.2003 observed that, "Microsections show a capsulated intradermal tumour composed of lobular masses with extension into subcutaneous fat. Tumour lobules comprise of polygonal to fusiform cells with amphophilic to vacuolated cytoplasm. No nuclear hyperchromasia, mitosis and necrosis seen. A few cystic spaces and ducts are seen. Thin vessels are present in the tumour. Epidermis is unremarkable. One large duct lined by cuboidal cells is seen adjoining the tumour tissue". In the impression, it was reported that, "Benign adnexal tumour. Suggestive of benign sweat gland tumour". The said report clarified that it was not a case of carcinoma breast and she was wrongly diagnosed and the opposite party No. 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 4 opposite parties 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 can not, now, do any regular work and can not even cook food and perform other daily jobs. The complainant had to engage one attendant for her daily jobs. The complainant can not 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.
4. The opposite party Nos. 1 and 2 filed written statement and 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; that the portion which was examined by opposite party No. 2 was breast lump, while the specimen examined by Dr. Lal Path Labs Pvt. Ltd. was skin nodule; that there is quite possibility that the observation regarding two different specimen may have varied; that 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; that there is a possibility that the breast lump which was examined by opposite party No. 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; that 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; that the 5 case was discussed with Dr. Pradeep Sharda and the limitations of morphologic evaluation in the case were discussed and appreciated; that the opposite party No. 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; that the complainant met the opposite party No. 2 on 30.05.2003 to collect slides and was explained the limitations of evaluation again and the importance and necessity of second opinion; that 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; that one of the most features of malignancy is local invasion and that there is no negligence on their part.
5. The opposite party No. 3 filed written statement and pleaded that they have treated the patient in accordance with well-established medical procedures, practices and norms; that the opposite party No. 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; that the opposite party No. 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; that the consumer complaint is barred by limitation; that the complainant was operated upon on 05.06.2003; that the complainant visited the opposite party No. 3 for the first time on 02.06.2003; that the complainant had a history of lump in her left breast for the previous six months'; that the complainant had undergone lumpectomy at Dehradun; that the complainant was offered breast conservation surgery, to which she declined and opted for modified radical mastectomy; that on 05.06.2003, the surgeons of opposite party No. 3 operated on the 6 complainant and modified radical mastectomy was carried out; that the removed specimen was examined histologically and the same did not show presence of any malignant tissue; that 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; that the complainant did not have any complication of surgery and recovered without requiring any further treatment; that the complainant was suffering from Stage I cancer; that biopsy is the most reliable method to diagnose cancer; that the decision to operate on the complainant was based on the biopsy report produced by the complainant herself; that 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.
6. In evidence, the complainant has filed the affidavit dated 11.10.2012 of Sh. Arun Goyal (Paper Nos. 89 to 94), who is the son of the complainant and who has been authorised by the complainant by authority letter dated 11.10.2012 (Paper No. 97) to sign Vakalatnama, complaint, evidence and affidavit or documents required to contest the above referred case on her behalf. In evidence, the opposite party Nos. 1 and 2 have filed the affidavit dated 17.04.2015 of opposite party No. 2 (Paper Nos. 104 to 107).
7. The consumer complaint was dismissed by this Commission for want of prosecution per order dated 28.10.2015. Against the said order, the complainant preferred an appeal before the Hon'ble National Commission, which was registered as First Appeal No. 342 of 2016; Yashoda Goyal Vs. Dr. Ahuja Pathology & Imaging Centre 7 and others. The appeal filed by the complainant was allowed by the Hon'ble National Commission 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.
8. After remand of the consumer complaint to this Commission, the complainant moved an application dated 10.04.2017 (Paper No. 121) under Section 24A of the Consumer Protection Act, 1986 for condonation of delay in filing the consumer complaint supported with an affidavit dated 10.04.2017 of Sh. Arun Goyal (Paper Nos. 122 to
127). In the affidavit, the averments made in the consumer complaint have been reiterated and it has also been stated that 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. On these grounds, the delay in filing the consumer complaint has been sought to be condoned.
9. The opposite party Nos. 1 and 2 filed objections to the delay condonation application by way of affidavit dated 15.05.2017 of opposite party No. 2 (Paper Nos. 146 to 150), wherein it was stated that the present counsel was engaged by the complainant in the month of October, 2012 and there is no explanation as to why the delay condonation application was not moved then; that the delay condonation application has been moved after a period of about 11 years' and there is no explanation for the same; that there is no 8 sufficient cause or explanation for delay shown by the complainant and that the delay condonation application is liable to be rejected. The opposite party No. 3 filed objections (Paper Nos. 128 to 129) to the delay condonation application supported by affidavit dated 25.04.2017 of Sh. D.S. Negi, Chief Executive Officer of opposite party No. 3 (Paper No. 130). In the objections, it has been stated that the complainant has not tendered any satisfied reason for not filing the consumer complaint within time; that the complainant never filed any application for condonation of delay during the period from 2006 to 2017 and that the delay condonation application moved by the complainant is liable to be rejected.
10. We have heard the learned counsel for the parties and gone through the record. We have also perused the written arguments filed by the learned counsel for opposite party Nos. 1 and 2.
11. At the outset, we would like to deal with the limitation aspect of the matter. The present consumer complaint was filed by the complainant before this Commission in the year 2006 and precisely on 29.04.2006. The complainant has moved an application for condonation of delay in filing the consumer complaint and first of all, we have to see whether there is justified and sufficient cause for condonation of delay in filing the consumer complaint or not before reverting to the merit of the case.
12. There is a delay of 11 months' and 9 days' in filing the consumer complaint. In the affidavit filed in support of the delay condonation application, it has been stated that at the time of filing the consumer complaint, the counsel so engaged had informed the complainant that the limitation for filing the consumer complaint is 9 three years' and, as such, the consumer complaint was filed without any delay condonation application.
13. One can stand the agony and suffering experienced by the complainant after she was operated upon and her left breast was removed and she had to undergo further tests / treatment after the operation, as has also been mentioned in the affidavit. The family of the complainant was engaged in saving the complainant's life, which was everyone's priority. In these circumstances, we are of the view that the complainant has made out a strong case for condonation of delay in filing the consumer complaint. It would not be out of place to mention here that the Hon'ble National Commission per its order dated 31.08.2016 rendered in the appeal filed by the complainant, thereby setting aside the order dated 28.10.2015 passed by this Commission, whereby the consumer complaint was dismissed for want of prosecution, has restored the consumer complaint to this Commission for adjudication on merits. It would further not be out of place to mention here that the report of Dr. Lal Path Labs Pvt. Ltd. (Paper No. 22) is dated 11.12.2003 and from the said report, the complainant came to know that she was not suffering from breast cancer, whereupon it came to light that the complainant was issued with a wrong pathology report by the opposite party Nos. 1 and 2 and hence it can safely be said that the cause of action for filing the consumer complaint had accrued to the complainant on 11.12.2003 and the consumer complaint was filed on 29.04.2006 and hence it can safely be said that there is a delay of about 4½ months' in filing the consumer complaint. However, as is stated above, the delay in filing the consumer complaint stands reasonably explained by the complainant. Therefore, the delay condonation application is allowed and the delay in filing the consumer complaint stands condoned.
1014. On merit, the case of the complainant is that she was issued with a wrong pathology report by the opposite party Nos. 1 and 2, wherein it was wrongly shown that the complainant is suffering from breast cancer (carcinoma breast) and further that the opposite party No. 3, without conducting any laboratory test, wrongly believed on the pathology report issued by the opposite party Nos. 1 and 2 and wrongly operated the left breast of the complainant and removed the same, which was not at all required, as the complainant was not suffering from carcinoma breast. In support of her case, the complainant has relied upon the histopathology report dated 11.12.2003 issued by Dr. Lal Path Labs Pvt. Ltd. Per contra, the defence of the opposite parties is that there was no negligence of any sort on their part and required procedure was duly followed and the opposite party Nos. 1 and 2 had clearly informed the complainant that the pathology report was suggestive and the complainant was specifically advised to take second opinion before determining the course of treatment and that the pathology report issued by opposite party Nos. 1 and 2 was not incorrect.
15. The report dated 20.05.2003 of the complainant issued by Dr. Ahuja's Pathology & Imaging Centre is Paper No. 14 on the record and in the said report, it has clearly been mentioned that the complainant is having "infiltrating ductal carcinoma" i.e., breast cancer. There is no mention in the said report that the findings are suggestive and that the complainant should go for second opinion before taking further treatment for curing the disease mentioned in the report. In para 9 of the written statement filed by opposite party Nos. 1 and 2, it has been stated that at the time of handing over the report to the complainant, she was told that she should get a second opinion and the limitation of pathological tests were explained to her, but, as is stated above, there is no mention of the findings being 11 suggestive in the report and that there is also no remark or alike that the complainant should go for second opinion. In para 12 of the written statement, it has further been stated that there is a clear possibility that the breast lump which were examined by the opposite party Nos. 1 and 2 suggested malignancy, while the skin nodules examined after removal of breast may have contained no malignance cell, as the stage of patient was detected at the very early stage. 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 opposite party Nos. 1 and 2. Thus, there has clearly been medical negligence on the part of the opposite party Nos. 1 and 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.
16. So far as the opposite party No. 3 is concerned, the opposite party No. 3 in para 8 of its written statement has stated that the report in question was given by a qualified and experienced doctor working at an established medical centre and there was no reason to question the veracity and accuracy of the said report. The opposite party No. 3 has acted in good faith and in the interest of the complainant and 12 necessary investigations were carried out on the complainant. The complainant was operated on the basis of the biopsy report produced by the complainant herself. In the given facts and circumstances of the case, we do not find any negligence on the part of opposite party No. 3, as it has acted on the report issued by opposite party Nos. 1 and 2, wherein the findings given were not reported to be suggestive and, as is stated above, no second opinion was advised to the complainant. The opposite party No. 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 opposite party No. 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 opposite party No. 3.
17. It is further pertinent to mention here that in the histopathology and cytology report dated 26.06.2003 (Paper No. 21) also issued by opposite party No. 3 - institute, the opinion has been given as "benign skin adnexal tumour - biopsy skin nodule", which also confirms the fact that the complainant was not suffering from breast cancer and the report issued by opposite party Nos. 1 and 2 was an incorrect one. A defence was taken that the opposite party Nos. 1 and 2 had taken the "breast lump" specimen of the complainant and on the basis of the said specimen, the disputed report has been issued, while the histopathology report dated 11.12.2003 issued by Dr. Lal Path Labs Pvt. Ltd. shows that the specimen taken was "skin nodule" and hence the report issued by Dr. Lal Path Labs Pvt. Ltd. can not be relied upon. We do not find any force in the said defence, for the simple reason that the slide No. 574-AA/03 taken for review by Dr. Lal Path Labs Pvt. Ltd. was the same prepared by opposite party Nos. 1 and 2 while giving the report in question and in the report issued by opposite 13 party Nos. 1 and 2, the reference number has been given as AA/2003/574.
18. Here, we would like to reproduce "Halsbury's Laws of England
- Volume 26 (3rd Edition) Pages 17-18" which reads as follows:
"23. Degree of skill and care required. 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; a person is not liable in negligence because some one else of greater skill and knowledge would have prescribed different treatment or operated in a different way; nor is he guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art, although a body of adverse opinion also existed among medical men."
19. The above principle has been well accepted and relied upon repeatedly by the Hon'ble Supreme Court, Hon'ble National Commission, House of Lords and others. We wish to specially rely upon the observations "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." We are in no doubt that when a patient who goes to a physician or diagnostic or radiologist, the patient does not expect a wrong diagnosis leading to further mental agony and tension.
20. Learned counsel for opposite party Nos. 1 and 2 cited a decision of the Hon'ble Apex Court in the case of Martin F. D'Souza 14 Vs. Mohd. Ishfaq; (2009) 3 Supreme Court Cases 1 = 2009 NCJ 193 (SC), wherein it has been held that medical practitioners are not liable for negligence simply because things went wrong from mischance / misadventure through error of judgment. In the instant case, there is clear-cut negligence on the part of the opposite party Nos. 1 and 2 in issuing a wrong and incorrect pathology report. There is no question of referring the matter to specialist in the concerned field, because from the report issued by Dr. Lal Path Labs Pvt. Ltd., it is evident that the complainant was not suffering from breast cancer. Learned counsel also cited another decision of the Hon'ble Apex Court in the case of Kusum Sharma and others Vs. Batra Hospital and Medical Research Centre and others; (2010) 3 Supreme Court Cases 480, wherein it was held that doctor must have a reasonable degree of skill and knowledge. He must also exercise care of a reasonable degree, neither highest nor very low, in the light of the particular circumstances of the case. There can not be any doubt about the above preposition of law pronounced by the Hon'ble Apex Court. Learned counsel further cited one more decision of the Hon'ble Apex Court in the case of Ins. Malhotra (Ms.) Vs. Dr. A. Kriplani and others; (2009) 4 Supreme Court Cases 705, wherein it has been held that unless negligence of doctor is established, liability can not be fastened on him. In the case in hand, it is clearly proved beyond any shadow of doubt that the complainant was issued with a wrong report by the opposite party Nos. 1 and 2 and the negligence on their part is duly established on record.
21. In the case of Bombay Hospital and Medical Research Centre Vs. Sharifabi Ismail Syed and others; I (2008) CPJ 432 (NC), the presence of tumour was wrongly indicated in MRI film and on operation, no tumour was found. Another MRI was conducted and second operation was performed on the basis of that MRI. It was held 15 by the Hon'ble National Commission that the consulting Radiologist who signed the report was responsible for misreading, non-reading / looking at MRI film correctly. Similarly, in the case of Nehra (Dr.) Vs. Shalini Vij and others; IV (2008) CPJ 230 (NC), there was wrong ultrasound report about abscess left lobe, which was contradicted by another Radiologist in another report within 24 hours. It was held by the Hon'ble National Commission that the negligence on the part of the petitioner is writ large and the Radiologist was held liable for giving wrong report and was made liable to pay compensation.
22. The above discussion lead us to the conclusion that there was clear-cut negligence on the part of opposite party Nos. 1 and 2 in issuing a wrong report, stating therein that the complainant is suffering from breast cancer and hence the opposite party Nos. 1 and 2 are liable to compensate the complainant for the wrong committed by them. One can imagine the pain and agony suffered by the complainant when she came to know that she is suffering from breast cancer and when on the basis of the report issued by opposite party Nos. 1 and 2, she was operated upon and her left breast was unnecessarily removed, on account of which, she has to suffer throughout her entire life physically, mentally as well as socially.
23. So far as the compensation to be awarded to the complainant is concerned, the complainant has claimed compensation of Rs. 25,60,000/- towards mental agony, torture and humiliation in family and social circle as well as expenditure incurred in her treatment, purchase of medicines, treatment and travelling expenses. 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 opposite party Nos. 1 and 2 together with interest @7% p.a. 16 from the date of filing of the consumer complaint till payment and Rs. 10,000/- towards litigation expenses.
24. For the reasons aforesaid, consumer complaint is allowed and the opposite party Nos. 1 and 2 are directed to pay compensation of Rs. 10,00,000/- to the complainant 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 opposite party No. 3.
(MRS. VEENA SHARMA) (JUSTICE B.S. VERMA) K