BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE

Dated this the 20^th April 2017

PRESENT

   SRI VISHWESHWARA BHAT D     : HON’BLE PRESIDENT

   SMT. LAVANYA M. RAI                  : HON’BLE MEMBER

ORDERS IN

C.C.No.42/2011

(Admitted on 17.01.2011)

Mr. Mukesh,

S/o Gangayya,

Of age 38 years,

R/o Kotimura,

Kulshekar Mangalore.                                                                                                                                                                                                                                                                        …....... COMPLAINANT

(Advocate for the Complainant: Sri DS)

VERSUS

1. Dr. Harish Chandra,

    Yenepoya Medical College Hospital,

    University Road,

    Deralkatte, Mangalore.

2. Dr. P.J. Yaranal,

    Yenepoya Medical College Hospital,

    Department of Pathology,

    Nithyananda Nagar P.O.,

    Deralkatte, Mangalore.

3. Dr. K. Pushpalatha Pai,

    Pathologist,

    Sr. Professor & HOD,

    Department of Pathology,

    Yenepoya Medical College Hospital

    Manglaore.

                                                    ….........OPPOSITE PARTIES

(Advocate for the Opposite Parties No.1 to No.3: Sri KSB)

ORDER DELIVERED BY HON’BLE PRESIDENT

SRI. VISHWESHWARA BHAT D:

I.       1. The above complaint filed under Section 12 of the Consumer Protection Act by the complainant against opposite parties alleging deficiency in service claiming certain reliefs. 

The brief facts of the case are as under:

     The complainant claims since 6 months he was having abdominal discomfort in lower quadrant of the abdomen and tenesmus and was admitted to Yenepoya Hospital on 2.7.2009 with history of mucus in stool.  About 3 years earlier he had the history of jaundice his father expired due to abdominal malignancy.  When complainant approached opposite party No.1 video colonoscopy was done on 4.7.2009 by Dr. Sandeep Gopal in opposite party hospital showing nodular mucosa distal ilium apthoid which is small ulcer on the mucosa membrane of the mouth.  Adjacent mucosa normal, colon few discrete apthoid ulcer were noted in descending and sigmoid colon, rest of the colonic mucosa was normal.  Rectum 2 cm size ulcer with slough at the base and polyphoid elevated edges was noted 5 cm off the anal verge.  Rectal mucosal prolapse was noted Biopsy taken from ilium colon and rectal ulcer.  Video colonoscopy shown to the superior to the double contrast barium enema has a higher sensitivity to detecting villous or dysplastic.   Complainant was not subjected to x-ray examination, colonoscopy being Gold Standard of diagnosis of colonic mucosal disease which has a greater sensitivity than barium enema or CT for colitis, polyps and cancer colon adenocarcinoma during hospitalization of complainant on 4.7.2009 to 6.7.2009.   On 5.7.2009 the biopsy done by opposite party No.2 revealed features suggestive of inflammatory Bowel disease neither Video colonoscopy nor Histopathology report dated 5.7.2009 revealed presence of adenocarcinoma or any malignancy or even a faintest signs of adenocarcinoma or any malignancy.   Opposite party No.1 have not diagnosed the Ulcerative Colitis as severe or fulminating or chronic and also not treated complainant by Corticosteroids the most useful drugs or with prednisolone on 20.40mg day over a period of 3 to 4 week prior to carrying out the lower anterior resectomy.

2.     On 16.7.2010 complainant again approached opposite party No.1 with abdominal pain dull aching more in the lower abdomen which got relieved by  defecation and tenusmus was passing mucous in the stools.  There was no history of fever, abdominal distention and passage of blood in the stools there was no history of hematochezia the meaning passage of blood in stools which is one of the chief symptoms of adenocarcinoma, fulminate ulcerative colitis being one of the symptoms of the ulcer syndrome.  On 18.7.2009 complainants case was posted for sigmoidoscopy as per discharge summary table BC and table Rantac had been prescribed to complainant by opposite party No.1 and finally diagnosed provisionally for solitary rectal celcer syndrome on 18.7.2009.   On sigmoidoscopy specimen was histology report to opposite party No.2.  The Microscopy under the histology report dated 23.8.2009 of opposite party No.2 revealed poly poidal tissue bits showing finger like villi from the muscularis mucosa.

3.     Opposite party No.1 after receipt of histopathology report dated 23.8.2009 exhorted complainant to undergo low anterior resection as according to opposite party No.1 he stably efflicted with adenocarcinoma of the rectum even in the absence of colonoscopic and ultrasound findings.  The ultrasound scan report dated 03.08.2009 done by Dr. Devadas Acharya only revealed mild wall thickening of the netum no obvious growth, no perirectal unfiltration and no significant adenopathy. The colonoscopy and the trus, ultra sound scan report did not reveal any malignancy, the histopathology report dated 23.7.2009 cannot have revealed malignancy therein.  Even if there was any malignancy revealed the prudent course would have been on the part of the opposite party No.1 through colonoscopy, TNM classification flexible sigmoidoscopy, Radiology, Double contrast barium, spiral CT, Virtual colonoscopy, which is effective in polyps down to size of 6 mm which could even replace colonoscopy as the standard investigation in future and when the complainant being apprised by opposite party No.1 statedly afflicted with adenocarcinoma or the rectium supplicated by in earnestly to seek second opinion prior to carrying out surgery. However opposite party No.1 without complainant’s informed consent straightaway carried out lower abdominal resection only on the strength of a mendacious histopathological report carried out the low anterior resection. 

4.     On 1.8.2009 complainant got admitted to Yenpoya Hosptial in order to lower abdominal resection on 5.8.2009 at 9.30 the operation commenced and ended at 3.45 as per another histopathology report dated 18.9.2009 reveals the specimen have been sent on 8.5.2009 on which day complainant had not been admitted to any hospital to say Yenepoya Medical College  Hospital. The impression revealed (1) left hemicolectomy with a serrated Adenoma and a nonspecific ulcer in the rectum (2) lower margin shows normal large intestinal structure (3) lower margin shows well differentiated Adenocarcinoma infiltrating up to the sub mucosa.    The specimen and resection of intestine measuring 21 cm in length, even the size of the ulcer as of 2 cm size with slough at base and polypoid elevated edges was noted 5 cm off the anal verge and even the histopathology report dated 9.7.2009 of opposite party No.2 revealed sized of ulcer as 2 cm but in the reverse of aforesaid histopathology report dated 18.8.2009 reveals the specimen having been sent at 12:00 Am on 8.5.2009 reveals therein size in the rectum being 3 x 2 cms about 3 cms away from the distal resected margin and gray white nodule measuring 0.8 x 0.5 cms.   However the surgical notes nowhere indicate either resection of gray, white nodule measuring 0.8 x 0.5 2 segments of intestines larger measuring 2cms in length, smaller measuring 2 x 1 x 0.5 cms.   Neither the colonoscopy nor trus ultrasound or sigmoidoscopy or surgical notes did not give even a faintest indication of the presence of sessile polyp showing serrated adenoma, the discharge summary does not indicate anywhere any reference to histopathology report issued by opposite party No.2.  The histopathology report dated 29.9.2009 of Kasturba Medical College under the impression revealed features and suggestive of solitary rectal ulcer syndrome with no evidence of malignancy.   As reasonably can be made out from the histopathology report dated 3.10.2009 of Father Mullers Hospital in as much as there was 2 varied opinions regressing of the specimen having become inevitable the specimen was resent along with all blocks and histopathology report  dated 20.10.2009 reveals the features being suggestive of solitary rectal ulcer.  On the histopathology report dated 7.11.09 of Nandikur clinical laboratory under microscopy reveals all section studied show colonic wall showing focal superficial ulceration and there is no definite evidence of malignancy in the tissue sent. 

5.     The complainant further claims there is different findings by the different labs opposite party No.1 on the strength created a Histopathological report dated 23.7.2009 carried out surgery of low anterior resectomy and got up the histopathological report of 18.8.2009 to show the complainant was afflicted with adenocarcinoma of necessitated the carrying out of the surgery but the surgery carried out by opposite party No.1  was totally unwarranted and unless unnecessarily surgery was done on 5.8.09 on complainant by opposite party No.1 when he was not afflicted with adenocarcinoma as none of the histopathological report of the other labs indicate contrary to the claim of opposite party No.1. 

6.     Subsequent to surgery complainant was hospitalized form 1.8.2009 to 17.9.2009 and he had to bear the cruel surgery performed by opposite party No.1 in a various slip shod, reckless and negligence.  The complainant had chest pain and difficulty in sputum out on 8.8.2009 and abdominal pain and abdominal distension on 9.8.2010, 10.8.2009, 12.8.2009.   On 13.8.2009 complainant was very anxious and agitated pushed by standers and nurses away and pulled colostomy bag his bed clothes were soaked in fecal matter and was disoriented on 17.9.2009 on opposite party No.1 advised for chemotherapy as per communication dated 17.9.09. 

7.     He was admitted to Father Mullers Medical College Hospital on 17.9.2009 to 3.10.2009 and on 19.9.2009 chemotherapy was provided to him and started vomiting and developed pain in the abdomen.  He started vomiting fecal vomitus had acute small bowel obstruction.   As per the discharge summary was for the histopathology report at Father Mullers Hospital of complainant from 24.10.2009 to 26.10.2009 he was diagnosed as being afflicted with ulcerative colitis with solitary rectal ulcer.  Again on he was admitted on 15.12.2009 to 13.1.2010 at Father Mullers Hospital was diagnosed as nonspecific ulcer rectum with left hemi colectomy + transverse colostomy and he was admitted for colostomy closure on 21.12.2009 and he complained of colicy abdominal pain on 3^rd January 2010 and complained of gaseous distention.

8.     It is further contended that when complainant was afflicted with solitary rectal syndrome with ulcerative colitis opposite party No.1 ought not to have carried out surgery of low Anterior Resectemy for Adenocarcinoma only on the strength of the false histopathology report dated 23.7.2009 and should have adopted a prudent course of action by referring the case to second opinion as done by Dr. R.C. Gatty and Father Mullers Hospital referred the case to Kasturba Medical College and on 29.9.2009 despite obtaining a histopathology report did not reveal any malignancy and even after referring to Nandikoor Lab.  Under the circumstance complainant claims as opposite party got issued a reply denying the liability to legal notice of 8.11.2010 come up with this complaint seeking the reliefs as prayed.

 II.   opposite parties on entering appearance filed written they contended treatment given to complainant at Yenepoya Medical College Hospital with the complainants complaint about pain and tenesmus from as inpatient from 2.7.2009 to 4.7.2009 and biopsy done and about histopathology report. As per the report of opposite party No.2 of 9.7.2009 suggested inflammatory bowel disease ulcerative colitis with advise to clinical is stated.  The blood test called carcinoembryonic antigen and tube marked for colorectal cancer was done on 3.7.09 and report of 7.7.09 showed significate elevation of the tumour marker level of 8.81 ng/ml when normal 3.4 ng/ml which is nearly 95% for specific for colorectal cancers and elevated value indicate poor prognosis.  Video colonoscopy for histopathological examination and of any abnormal area suggest ulcers, thickening, growths is the most relevant investigation in the diagnosis of cancers and other diseases of the colon and the rectum.  Cancers of rectum and colon can or occur in the form of ulcer, polypoidal mass, stenosing or diffuse growths the video colonoscopy findings of the rectal ulcer at about 5 cm from the verge as described could represent adenoma of rectum with cancerous transformation.  As first line conservative treatment for the symptoms, antibiotics tab ciprofloxacin tab metrogyl, Anovate ointment for rectal application syrup Cremaffin were advised with come back after a week on the discharge of on 6.7.09. On 16.7.09 the patient came back and got admitted had no relief from the symptoms.   Hence revaluation of clinical colonoscopy and biopsy was carried out in the form of sigmoidoscopy and multiple biopsy from the particular area was done on 18.7.09 and discharge on 20.7.09.  The sigmoidoscopy specimen measuring 0.5 cm all embedded in one block No.2336/09 was tested by the team of Pathologists and Histopathology Report signed by opposite party No.2 on 23.7.09 showed features suggestive of villous adenoma with features of adenocarcinoma that slide was taken by complainant for further testing. Based on these findings and want of response to medication given to the complainant he was diagnosed of carcinoma rectum.   The biopsy report dated 23.7.09 showed presence of cancer it was informed to the patient party with a day or 2 he was advised to undergo surgery.  The complainant has liberty to having a second opinion regarding the diagnosis and further line management if he really wanted.  He got again admitted on 1.8.09 surgery called low anterior resection was done on 5.8.09.   As per this procedure the portion of the colon and the upper part of the rectum was removed and the anastomosis was done.  Colostomy there is temporary opening for diversion in the large intestine for passing of stools till the rectum portion where anastomosis is done heals and enables passing of stools in the normal.  During the interim period stools are made to pass into the bag put in the part of the colostomy.  On 3.8.09 trus (transrectal ultrasound) was done to see the extent of the cancer. It is not used of identification or diagnosing as cancer.  But it showed mild thickening of the wall of rectum.  When the cancer is earlier done does not show any indication of the cancer and trus is not suited for that cancer.  The entire resected portion done after the surgery on 5.8.09 was sent to pathology department for testing and the histopathological report dated 18.08.09 issued by opposite party No.3 confirmed lower margin  III shows well differentiate adenocarcinoma infiltrating up to the sub mucosa.  The portion resected by opposite party No.1 the large intestine of the complainant as per pathological procedure small bits of tissue was taken from the specimens from representative areas and formed into sections A to L.   Section E was container A of the portion resected by opposite party No.1 by large intestine of the complainant was received from Pathology Dept. from Surgery Department in the forms of 3 specimen in 3 separate containers A noted as lower margin I, B descending colon, sigmoid colon and rectum noted as lower margin II and C doughnut specimen labelled as lower margin III on 5.8.09.  

2.     Section C was made from a lower margin section A, B, C, D, H, I, J from contained B labelled as lower margin II and section F, G, K and L from container C labelled as lower margin III.   The specimen in container B was a single piece of resected colon with rectum 21 cms in length sample tissues were taken from suspicious abnormal looking area and normal looking areas as well in the specimen. The tissues samples were formed into paraffin Blocks A to L with 3 slides were taken numbered as block No.2549F/09 lower margin III for testing was done and tested by team of pathologists at the hospital headed by opposite party No.3 and the cancer was detected in all the 3 slides taken by block F and were well documented and reported on 18.9.10.  Probably under instructions of Fr. Mullers Hospital complainant’s wife Mrs. Meenakshi came to opposite party No.3 and sought block 2549F/092 and block 2336/09 and were handed over that to opposite party on 26.9.09 documented by her signature with date and they came again sought seeking for 3 specimens containing A B C accordingly they were handover on 15.10.2009 under her signature and dated and were written.

3.    It is further alleged, the opposite parties are not aware to send on any other lab as claimed.  The surgery was carried with good faith and total care with success.  There is no any experimentation/malpractice or negligence on the part of opposite parties.  The fact that ultra sound report did not reveal any malignancy does not mean that histopathology No. 2336/09 dated 23.7.09 cannot reveal malignancy.  There is an error in the record of the 3 container date 5.08.09 shown as 08/May/09 due to computer system error.  As such contends in any of the claims of complaints seeks dismissal.

4.     On behalf of complainant rejoinder was filed, almost asserting the statements made in the complaint.  It is alleged under normal circumstance if there was any indicator of the cancer and subject to provide him conservative treatment histopathological report revealed adenocarcinoma.   Opposite party No.1 was legally bound to adopt a procedure to carry out the resectomy of abdomen only on the strength of the complainant for the procedure is ascertained possibility of complainant having afflicted with adenocarcinoma.

5.    In support of the above complainant Mr. Mukesh filed affidavit evidence as CW1 and answered the interrogatories served on him and produced documents got marked at Ex.C1 to C85 as detailed in the annexure here below.   On behalf of the opposite parties Dr. Harischandra (RW1) Prof, Dept. of General Surgery at OP Hospital, Dr. P.J. Yaranal (RW2) Dept. of Pathology, Dr. K. Pushpalatha Pai (RW3) Sr. Prof. & HOD, Pathologist in Yenepoya Medical College  Hospital and Dr. Lakshmi Rao (RW4) Prof & Head of Dept. of Pathology, Kasturba Medical College, Manipal also filed affidavit evidence and answered the interrogatories served on them and produced documents got marked at Ex.R1 to R12(a) as detailed in the annexure here below. 

III.    In view of the above said facts, the points for consideration in the case are:

1. Whether the Complainant is a consumer and whether there is consumer dispute between the parties?
2.  If so, whether the Complainant is entitled for any of the reliefs claimed?
3. What order?

     The learned counsels for both sides filed notes of arguments.  We have considered entire case filed on record including evidence tendered by parties.   Our findings on the points are as under follows:

               Point No. (i) : Affirmative

               Point No. (ii) : Affirmative

               Point No. (iii) : As per the final order.

REASONS

IV.   POINTS No. (i):        The complainant was on various occasions admitted for treatment/surgery at opposite partys Yenepoya Medical College Hospital is undisputed.   Hence the relationship of consumer and service provider between the parties is admitted by the parties.  There is dispute between the parties as to the allegation of the complainant in giving treatment provided by opposite parties.  Hence there is a live dispute between the parties as contemplated under section 2 (1) (e) of the C P Act.  Hence we answer point No.1 in the affirmative.  

Points No. (ii):      The case on hand the nature of complaints with which complainant initially approached opposite party No.1 in the hospital and biopsy and numerous test were conducted on the rectum and other test were done is not in dispute.   CEA done on complainant showed a higher reading of 8.81 nl/ml when the normal reading is 3.31 nl/ml is also undisputed between the parties and Ex.C20 is the lab analysis report. That CEA is an indicator suggestive of adenocarcinoma is also admitted by both sides.  The father of complainant had cancer and died of that was one of the factors that made opposite parties to suspect and conduct the biopsies done on 5.7.09, colonoscopy and other tests his father died due to abdominal malignancy.  According to opposite parties it was one of the reason for suspecting adenocarcinoma on the IR CEA level indicator.

2.    In respect of surgical report of colon and rectum result of cancer there is no mention made in the copy of the text provided by the learned counsel for complainant as to the definitive surgical resection and lymphatic metastases etc. theory read thus:

Definitive surgical resection involves a consideration of at least six factors in the spread of the tumour.

1. Intramural spread.  Any curative resection should be performed with sufficient margin on each side of the lesion to provide a cut edge of the specimen free of tumour.
2. Lymphatic metastases.  The direction and extent of lymphatic spread determine the scope of the operation that will be required.  First metastases occur in pericolic nodes.  The process extends up to the chain of nodes that parallel closely the blood  vessels to the affected segment of colon.  Adequate resection should include wide removal of the proximal lymphatic channels.  Lymphatic involvement alone will reduce the 5 year survival figures by approximately 50 per cent.
3. Venous spread.  The demonstration of tumor cells in the venous effluent from tumor bearing segments of colon, particularly during the manipulation of these areas, has emphasized the importance of this route of spread.
4. Implantation in the anastomosis.  Our own experimental and clinical studies, as well as those of a number of others, have shown quite clearly that this route of spread can and does account for a number of recurrences.  Experimental data show that there are relatively few techniques that are effective in controlling this form of spread.
5. Direct extension.  Tumors of the colon may break through the serosa and invade any organ in contact with the colon.  Spread to the prostate may produce difficulty in the male, and spread can also occur in the reverse direction.  Often the involved organ can be removed at the same time as the primary, and the presence of extension to another organ is not necessarily a reason for abandoning the operative approach.
6. Transperitoneal spread.  Spread by this route usually means widespread involvement and in general indicates an incurable lesion.

3.     On 5.8.2009 complainant had undergone surgery of lower anterior resection for adenocarcinoma for rectum on 5.8.2009 conducted by opposite party No.1 and opposite party No.2 is pathologist who gave histopathological report on 18.7.09 as per Ex.C6.  Ex.C6 dated 18^th July 2009 issued by Dr. P J Yaranal, pathologist, opposite party No.2, with reference No 2336/09 and the nature of specimen shown and sigmoidoscopy specimen.  The relevant portion of Ex.C6 reads:

Gross: Received multiple tiny soft tissue bits altogether measuring 0.5cm.  All embedded in one block.

MICROSCOPY: Sections studied show polypoidal tissue bits showing fingerlike villi arising from the muscularis mucosa.  The lining epithelium shows dysplastic features stroma shows the infiltration of muscularis mucosa by the tumour cells.

IMPRESSION: Features are suggestive of villous Adenoma with features of Adenocarcinoma. quote gross microscope impression

Admittedly biopsy was done on 18.7.2009 and report is dated 23.7.2009.

4.     Subsequent to the surgery of rectum according to opposite parties Ex.C5 is the copy of case sheet of history sheet of complainant maintained at Yenepoya Medical College Hospital on 16.7.09.  On 20.07.09 admittedly was discharged and was conduct and diagnosis for solitary rectum syndrome as per histopathology report dated 23.7.09.

5.     Ex.C7 is another histopathological report with histopathological number as 2549/09 the nature of specimen is mentioned as A lower margin (Distal margin of rectum) B Descending colon, sigmoid colon and rectum and C Doughnut specimen.  It also mentions about the segment received of intestine, measuring 21 cms in length and forming A to K and L smaller segment with the contained labelled A as lower margin I, container labelled as lower margin III containing F, K, L segments and lower margin II containing segment A to D H I J and E the impression mentioned at Ex.C7 by the pathologists reads 1.  Left hemicolectomy with serrated adenoma and a nonspecific ulcer in the rectum.  2. Lower margin one shows normal large intestinal structure. 3. Lower margin III shows well differentiated adenocarcinoma infiltrating up to the sub mucosa.  This report is signed by Dr. K Pushpalatha Pai, Pathologist, Sr. Prof & H.O.D, Dept. of Pathology, Yenepoya Medical College, Mangalore (for short YMC).    At Ex.C7 at the beginning the date of the document is mentioned as 8^th May 09 but at the end the date is shown as 18^th Aug 09. Certain explanation were tendered at evidence that it is an error occurred in mentioning as 8^th May 09 considering it is no ones case that the complainant never came to the hospital are undisputed would be just to ignore the incorrect entry of the date at Ex.C7 as it is no body’s case on 8^th May 09 complainant even approached Yenepoya Medical College or any of the opponents for treatment. 

6.     In fact Dr. K Pushpalatha Pai, opposite party No.3 was also examined as RW3 in the case and she filed affidavit evidence and was subjected to and interrogatories were served on her and answered by way of affidavit.

7.      Before analysing the testimony of the RW3 and any other evidence we will consider other evidence made available by the complainant and that being evidence produced by the complainant to show that there was no adenocarcinoma as the examination of pathological report of 3 other labs obtained by complainant in respect of this specimen provided by opposite parties had negative reports to adenocarcinoma of rectum.  Ex.C74 is Haematology test Report pertaining to complainant test done at Fr. Muller Medical College & Hospital it is dated 15.12.2009. Ex.C76 is Abdomino-Pelvic Sonography report of Fr. Muller Medical College and Hospital dated 27.5.2011 of complainant.  It mentions the impression mentioned at Ex.C76 are Dilated fluid filled small bowel loops intestinal obstruction, Gall bladder polyp suggested x ray erect abdomen. Ex.C81 is Radiograph-Abdomen Erect AP dated 27.5.2011 pertaining to complainant it mentions the following

Radiograph-Abdomen Erect AP

Known case of Ca Colon

• No Pneumoperitoneum
• Multiple air fluid levels seen in small bowel loops-suggestive of intestinal obstruction

It was issued by one Dr. Vinod Hegde MD.

8.     Ex.C71 is copy of admission/discharge record pertaining to complainant issued by Fr. Muller Medical College & Hospital showing date of admission date on 17.09.2009 and of discharge on 3.10.09.   It shows the final diagnosis as suspected cancer of rectum as? Ca Rectum and the procedure is shown as only supportive and discharge status as improved.  The discharge summary issued by Fr. Muller Medical College Hospital dated 3.10.09 mentions in the column pertaining to course as patient is k/c/o Carcinoma rectum post op (left hemicolectomy and colostomy) was admitted for chemotherapy.  Patient had features of intestinal obstruction and was managed supportively.  Patient improved it also mentions about patients’ histopathology blocks were sent to confirmation at FMMC Lab, report awaited.

9.     Ex.C9 is the Histopathology Report dated 07.10.2009 issued by Dept. of Pathology Fr. Muller Medical College & Hospital it mentioned the gross received as 2 blocks labelled as 6938/09 and 6938A/09 in respect of Microscopic Appearance is mentioned as 3158/09 section studied from tissue bits show mucosa.  However there is mention made as the 2 varied opinions, regrossing of the specimen is needed resend the specimen along with all the blocks.

10.     Ex.C10 is again the Histopathology Report of the same hospital and Dept. of Pathology as Ex.C10 is dated 20.10.09 pertaining to complainant and reference mentioned is IP/OP No. Yenopoya Hospital pertaining to complainant it mentions specimen: Review slides, specimen clinical diagnosis gross characters of the specimen received: received one slide from outside lab, labelled as 2549F/09 specimen received.

Received segment of colon measuring 19cm in length outer surface congested on cutting open the colon measuring 3x3cm area in the mucosa shows loss of mucosal folds and yellowish discolouration and is indurated.  This area is 4cm from the dilated end and 10cm from the narrow and another area in the mucosa shows narrowing above 2 x 1cm which is 2.5cm from the narrowed end and 13cm from the other end however mucosal folds are present. 

Microscopic Appearance:

3341/09: Section studied from the indurated area shows flattening of the mucosal surface with crypt hyperplasia.  Mucosa also shows vague villous appearance.  The muscular is mucosa and submucosa show fibrosis and sclerosis.  There are plenty of dilated blood vessels.  Narrowed area of colon shows increased fibrosis in the submucosa.

Features are suggestive of solitary rectal ulcer.

Dr. G.K. Swethadri, MD,  Pathologist

Thus Ex.C10 after study of the slide 2549F/09 prepared by Yenepoya Medical College Hospital mentions the features are suggestive of solitary rectal ulcer and does not mention about any adenocarcinoma.

11.     Ex.C11 is Histopathology Report of Nandikur Clinical Laboratory dated 7.11.2009 pertaining to complainant and the reference shown as referred by is mentioned as Dr. Harishchandra B MBBS, DNB, FRCS (ENG) though at Ex.C11 does not make mention of this Dr. Harishchandra B.   We have what reasons to deduce that the doctor who referred the specimen to Nandikur Clinical Laboratory is none other than opposite party No.1 of this case.  The reason for mentioning this detail of the doctor is a stand taken on behalf of opposite parties that what was the specimen at Ex.C11 the conclusion of Ex.C11 arrived after studying the nature of specimen sent as segment of colon measuring about 14 cms in length the microscopy study and features are suggestive mentioned as follows:

Microscopy: All sections studied show colonic wall showing focal superficial ulceration.  The deeper layers show few scattered chronic inflammatory cells and congested capillaries.  The glands show normal morphology.  No dysplastic changes or malignancy seen in any of the sections.

Features are suggestive of Nonspecific Chronic Inflammatory 

Pathology 

There is no definite evidence of malignancy in the tissue sent. 

Thus the conclusion arrived by Dr. K. Upadhyaya MD (Path) at Ex.C11 of Nandikur Clinical Laboratory is mentioned nonspecific Chronic Inflammatory Pathology and there is no definite evidence of malignancy in the tissue sent.

12.     Ex.C12 is another report issued by Piramal Diagnostics in respect of complainant the record mentioned referred by Dr. R C Gatty and accessioned on 4^th Dec 09 and report on 8^th Dec 09 and the nature of material is mentioned as specimen and 1 stained slide (3341/09) of anterior resection of the rectum. The microscopy conclusion mentioned as 4 pararectal lymph nodes are benign and the impression is mentioned as Anterior resection of colon and Mucosal prolapse syndrome of the rectum it is signed by Dr. Anita Borges MD FRC Path.  

13.     Ex.C74 is a Haematology test report of Fr. Muller Medical College & Hospital pertaining to complainant dated 15.12.2009 it has referred the consultant doctor as Dr. Rohanchandra Gatty.  Even at Ex.C77 bio-chemistry report dated 27.5.2011 of complainant,  Ex.C78 Haematology test report of complainant the doctors name is shown as Dr. Rohanchandra Gatty the reason for referring to this document in details is we would be justified in deducing the name referred as Dr. R. C. Gatty as of Fr. Muller Medical College & Hospital i.e. Dr. Rohanchandra Gatty.

14.     It was pointed for complainant referring to these analysis report from these 3 laboratories of Fr. Muller Medical College & Hospital, Nandikur Clinical Laboratory, Yenepoya Medical College i.e. none of them supporting the claim made by opposite parties of adenocarcinoma of rectum of complainant.  However it was pointed out for opposite parties that the section of 21 cm length specimen collected from the rectum colon of complainant 3 sections were found as detailed earlier in this order and only in the rectum portion i.e. in slide No. 254F/09 adenocarcinoma was detected and not the rest. Hence, it was argued for cancer it is not the case of opposite parties that how the parts were resected were cancerous but only in one section adenocarcinoma is detected.  Hence the observation made by the other 3 labs at Ex.C9, Ex.C11 and Ex.C12 cannot be tagged on to the report of the opposite party No.3 and the Yenepoya Medical College Hospital showing positive report in 2 reports in respect of slides 2336/09 and 2549F/09. The argument of the learned counsel appears at first glance quite convincing that as to the arguments has to be accepted in toto.  But we are not forced to draw conclusion on the point of the argument of the learned counsel for opponents. We will discusses it a bit later in this order.

15.     In fact Ex.C14 Video colonoscopy report of complainant dated 4.7.09 the conclusion arrived by Dr. Sandeep Gopal is of Rectal Ulcer (? Solitary rectal ulcer syndrome).   Of course we are not concluding by referring to this Ex.C14 as the conclusive aspect as to the nature of illness of complainant as to whether he has adenocarcinoma or only solitary rectal ulcer syndrome.  In fact Ex.C14 dated 4^th July 2009 the beginning of the investigation process of the health condition of complainant. 

16.     Learned counsel for complainant argued that opposite parties have not produced the slides pertaining to complainant which showed the adenocarcinoma according to opposite parties instead they produced it at later stage a photograph of the slides and a CD pertaining to 2549F/09 at and CD marked at Ex.R10 (a) and Ex.R10 is the photographs of the normal view of slide 2549F/09 and also the closer view of the said slide showing to arrows of sub mucosa and the 3^rd photograph said to show normal view and other said slide of tuberous of submucosa and the 4^th a closer view of the suggestive embolic submucosa and the next slide showing mucosa with dysplastic glands with polyp and the last photograph said to show dysplastic glands with polyp on a closer view. In fact an argument was advanced on behalf of opposite parties that in respect of the three reports of investigation by external labs produced by complainant the persons’ who issued these reports are not examined and as such cannot be looked into.   Secondly for opposite parties that the sample collected and sent to them are not shown to be of F section of the resection portion of the complainant as cancer may get exhibited only in a small portion and not entire portion.  As even in the case on hand cancer was detected by opposite parties only in F section of the 21 cm length of the sample collected.  However the learned counsel for complainant on the other hand argued it is not as if the complainant did not make efforts to examine these witness.  The application filed for examining these witness who issued the analysis report Ex.C8 of KMC Mangalore, Ex.C9 and Ex.C10 of the Fr. Muller Medical College & Hospital, Ex.C11 of the Nandikur Clinical Laboratory and C12 of the Piramal Diagnostics.  As seen from the order sheet this claim of the learned counsel for complainant is correct as the application filed by him was rejected by order dated 22.7.2011.  In fact the application filed under section 13(4) of C P C sough for summons as to many as 11 doctors for marking the documents and for giving the treatment and marking documents issued by them.  Hence the argument for complainant on this count is liable to be accepted. Thus it is clear from the above document Ex.C7 to C12 the results therein remains and can be looked into.

17.     Of course as to the argument of learned counsel for opposite parties that if the area verified/examined by the authority of documents can be looked into and that there is no positive mention as to which of the resected portion was examined.  But it is to be borne in mind the slide sent by RW3 to the Fr. Muller Medical College & Hospital on examination the report Ex.C10 given indicates no adenocarcinoma.   This is inconsistence with the report of the RW3 report of the Ex.C10 what is the conclusion arrived is ’Features are suggestive of solitary rectal ulcer’ and the slides, specimen examined is mentioned by the Dr. G K Swethadri MD, Pathologist who issued the Ex.C10 had mentioned the slide received is labelled as 2549F/09 and also received the specimen.  In fact learned counsel for opposite parties attached Ex.C10 as well on its genuineness and reliability on the count the referred number mentioned at Ex.C10 is 3341/09.  However as we can make out form Ex.C10 itself the number mentioned by the doctor who issued this document is biopsy No: H3341/09 must be a reference number noted in the concerned of hospital register i.e. KMC, Mangalore by the author.

18.     RW4 is Dr.  Lakshmi Rao she deposed that she is working as Prof. and Head of Dept of Pathology at KMC, Manipal since January 2007 and on the request of RW3 Dr. Pushpalatha Pai, Prof & HOD of Dept of Patology of Yenepoya College hospital, Mangalore in the 3^rd week of November 2010 to examine slide labelled as 2049F/09.  She examined and found the features suggestive of early adenocarcinoma and gave the report dated 24.11.2010.  Ex.R11 is the report issued by RW4.   In fact she did admit in cross examination Ex.R11 does not mention as to on which dates these slides were given to her though it mentions both slides were returned to Dr. Pushpalatha Pai.  This complaint under section 12 of C P Act was filed on 15.12.2010 before the Forum.  Legal notice Ex.C15 was issued on behalf of complainant to opposite parties on 8.11.2010.  Ex.C16 dated November 18, 2010 is response on behalf of opposite parties by the learned counsel for opposite parties issued to the learned counsel for complainant to the legal notice Ex.C15.  Thus it is clear Ex.R11 is authored subsequent to complainant got issued legal notice.  Hence we are of the opinion considering the fact that on Ex.R11 being the solitary document other than the documents authored by the opposite parties on adenocarcinoma of complainant is undisputed. 

19.     Ex.C8 is another Histopathology Report issued by Dr. Nirupama M dated 1.10.2010 and the name of patient is shown as Mukesh age as 38 years Hospital Fr. Muller’s Hospital and date of receipt of specimen is shown as 29.9.2009, the nature of specimen shows blocks, clinical diagnosis  is mentioned as ca rectum relevant portion reads thus:

 Gross Appearance: 2 blocks labelled 2336 & 2549F received. 

Microscopic Appearance:

6938/09: Sections studied show inflamed rectal mucosa with underlying colonic glands hyperplastic strands of smooth muscle is seen in lamina propria and perpendicular to colonic crypts.  Surface epithelium is also covered by acute inflammatory exudate and granulation tissue.

A: Sections show intact mucosa with congested blood vessels with traversing smooth muscle bundles.  

Underlying stroma shows congested & dilated blood vessels.  No evidence of malignancy.

Impression: Features are suggestive of Solitary Rectal Ulcer Syndrome.

20.     Thus on going through Ex.C8 it is clear that Dr. Nirupama M the Pathologist of Kasturba Medical College, Dept of Pathology on examination of two blocks labelled 2336 and 2549F which are the blocks

prepared by pathology department of opposite parties hospital and even according to opposite parties these samples were taken away by complainants wife who is admittedly working in Fr. Muller College Hospital.  As already referred Fr. Muller Medical College & Hospital Pathology Dept reported as one suggestive of only solitary rectal ulcer.  From Ex.C8 as well the samples received including the two blocks labelled and handed over to complainant’s wife were received and examined and stated as of adenocarcinoma on 2336 or 2549F.  In fact an attempt was made to wedge out Ex.C8 like that of Ex.C10 as reference number mentioned at Ex.C8 is 6938/09.  We have already mentioned in the respect of Ex.C10 the brief mentioned as H 3341/09 this number of 3341/09 must be of the entry in the register of Fr. Muller Medical College & Hospital Pathology Department.  Likewise we are of the firm view that by drawing an inference in respect of Ex.C8 as in the respect of reference No. 6938/2009 as entry in the histopathology report register and the report number therein we cannot accept another lab on examination of the two blocks labelled on as 2336 and 2549F be given by the pathologist of KMC Hospital Mangalore.  Thus it is clear even Ex.C8 on examination of the two block 2336 and 2549F reported as the solitary rectum ulcer syndrome and not of adenocarcinoma as claimed by opposite parties.

21.     In fact opposite parties produced Ex.R2 and R3 the registers maintained by the opposite parties hospital in respect of histopathology.  Ex.R2 contains at page no.130 entry No.2336/09 dated 18.7.09 and Ex.R3 another register of histopathology of opposite partys hospital in which at page no.55 entry pertaining to 2549F/09 is found.  At Ex.R2 in the results column entry is made by Dr. Yaranal i.e. opposite party No.2 with date under his signature as 23.7.09 there is also an entry in the investigation column as  slides seen by DR. K P Pai, Sr. Prof and HOD dated  23.7.09  the entry in the result column made by Dr. Yaranal reads:

Sections studied show polypoidal seen by Dr. K.P. Pai, Senior Prof & HOD, tissue bits showing finger like villi arising from the musculaeis mucosa.  The lining epithelium shows dysplastic anaplastic pleomorphic features stroma shows the infiltration of musculaeis mucosa by the tumor cells.

IMP:  Features are suggestive of villous adenoma with features of adenocarcinoma  Dr. Yaranal 23/7/09

22.     In the results column in the entire entry of possible of Dr Yaranal is in black ball pen except the two highlighted portion which are in a different handwriting and in a blue ink the cut off portion mentioned above is cut off the anaplastic portion in black dot pen and pleomorphic portion in blue dot pen.  Thus it is clear there is interrelationship subsequent to additions and cancellations.  Even though Dr Yaranal i.e. opposite party No.2 was examined in this case as RW2 did not tender any explanation about these correction interlineation.  Opposite party No.2 in his examination in chief affidavit mentions he received samples on 20.7.2009 and not on 18.7.2009 as mentioned in version.  But Ex.R2 entry at page 130 mentions date on 18.7.2009.   In this affidavit evidence of RW2 mentions in the handwritten very it was wrongly showed that the slide was given to the patient party were that the slide is produced in this court. But entry at the margin on the left hand side page of Ex.R3 at page No.55 mentions CR/2336/09 specimen and 2549/09 F which show early malignancy given to patient party on 15.10.09 under signature of K.P. Pai with another entry at right hand side page of delivery of the 2 slides to Meenakshi wife of patient on 26.09.09.  In fact the slides were produced before this Forum and marked at MO No.1. Mo1 contains both slides 2336/09 and 2 slides of 2549F/09 it is also seen with this MO No. 1 there are 3 x rays produced and those x rays pertaining to large intestine and rectum.  There is no mention in two of the big x rays to whom it belongs and the date on which the x ray were taken in which normal a radiologist while taking x ray records arranges to record in the films, the 3^rd x ray record produced shows the name as KIRAN and No. mentioned as KG4817158 as we cannot make out properly none of these x ray pertaining to the complainant.  If it pertains to complainant the name ought to have been reflected or ought to have been the name of complainant and not of the KIRAN and in the other two x rays also should have reference number if not name pertaining to the complainant.

23.     Ex.R3 is the register wherein entry pertaining to samples of 2549F/09 with date 5.8.09 under the name of complainant Mr. Mukesh aged 38 years and the referred doctor as Dr. Harishchandra B i.e. opposite party No.1 is entered is found on the left hand portion detailed entries as to the segment of colon of the specimen A-H is mentioned in detail, on the right hand portion a computer printout of the Histopathology Report pertaining to complainant on that histopathology No.2549/09 with date 08/May/09 time 12.00 am under which the name of the patient as Mukesh is entered.  The impression entered at on this page printout reads thus:

Impression: 1. Left Hemicolectomy with serrated Adenoma and a nonspecific ulcer in the rectum.

2. Lower Margin I shows normal large intestinal structure

3. Lower Margin III shows well differentiated Adenocarcinoma infiltrating upto the sub mucosa.

And the date below mentioned shown as 19/Aug/09 and the time 12.21 PM the name of the patient referred doctor is shown as Dr. K Pushpalatha Pai, and there is possibly signed as K.P. Pai i.e. opposite party No.3.   She was examined as RW3.  We are curious to see why a computer printout of the report was pasted on this right hand side of page No.55.  A portion on the left side bottom was almost to the top is open and we can glance as to the handwritten entries of this page. The entire writing on this left side portion appears in blue dot pen of single handwriting except an interlineation in blue dot pen of a different handwriting.  The said interlineation is in respect of the column sub heading mentioned as gross the writing from the word gross  the interlineation in different handwriting reads 3x2 cms about 3 cms away from the distal executed margin and g/w nodule 0.8 x 0.5 cm.

24.      In fact on the left side of page 55 of Ex.R3 there is an endorsement of handing over of the specimens to patient party it is signed by K.P. Pai i.e. opposite party No.3 the said writing reads thus: 2336/09 and 2336F/09 which show earlier malignancy of complainant on 15.10.09 sd- K.P. Pai this entry is inconsistent with entry in the printed pasted histopathology report of entry of handing over the two slide to Meenakshi wife of complainant on 26.9.09.

25.     As seen from the handwritten portion which is written in blue dot pen signed by Dr. Yaranal i.e. opposite party No.2 with the dated 13.8.09 in the respect of the section H in this computer printout signed by the opposite party No.3 pathologist in this computer printout at the end after mentioning of the date, time, name and designation of opposite party No.3 there is a balpen entry in blue ink as follows:

2549F/09 and 2336/09 blocks (2 in nos.) given to Mrs. Meenakshi wife of the patient.  On 26.09.09 Meenakshi possibly under her signature.

26.    What can be deciphered from the handwritten report of the right hand side of the page 55 on which this printed Histopathology Report is pasted reads thus:

F sections from the lower margin III shows …... to polyp  is stuck off.  Then interlineations is made which is in a different bal pen though of blue only the handwriting is different from original writing.  The interlineation from the word shows cannot be seen in view of pasting of the printed report. But the next three lines of interlineations read thus: shows malignant irregular glands ysflaria of living epithelium and glands .  …..... (sick) and this last two words were again stuck off and then line by moderate

Malignant moderately polymorphic columnar cells are seen infiltrating then mucosa submucosa is written. Thereafter after the polyp mentioned above in the next line the original writings probably in the handwriting of the Dr Yaranal i.e. opposite party No.2 as the original writings is appears to be of the same person who signed the page with the ball pen and the instrument used to writing i.e. bal pen appears to be the same. There are scoring off portions of original writings in red ball pen with interlineations.   We will mention the portion written and scored of in red ink is written in the below quoted portion in italics and the interlineations used is mentioned in highlighted italic portions.

G, K, L sections from lower margin 3 (smaller segment) showing ulceration of the mucosa with subepithelvim granulation tissue.  H  sections from small rectal nodule  (sessile polyp) showing serrated profile of lining polyp epithelium with an irregular crypts glands with  epithelia also  showing decreased mucus serration …... impression 1. Left hemicolectomy with and q os ….? Rectum thus shows normal hyperplastic seriated ?  Polyp normal

2. Lower margin  shows is within normal shows

Large in intestinal structure limits No evidence of malignancy. 

3.  Lower margin III  shows this plastics (there is some more writing in red dot pen except infel) well features

Well differentiated adenocarcinoma infiltrating up to submucosa this biopsy most probably taken form the stalk of the previous villo adenomatous polyp. 

27.     Learned counsel for complainant argued there was no informed consent of complainant obtained for the procedure and the surgery.   As seen from Ex.R1 the case sheet pertaining to complainant maintained at Yenepoya Medical College and Hospital the consent form shows signature of the complainant and the date mentioned is 4.8.09.  As seen from this form what was explained to complainant as to the other than no operations was done by Dept of surgery the name of the doctor or the person who is expert is not mentioned and of dept of anaesthesia there is no mention as to what are all the nature of procedure to be done and what are consequences of not doing the procedure not to be done of the rectum which was carried out on complainant and what would be the consequence of not doing the surgery is not recorded.   Hence as rightly pointed out for complainant, there is no mention of these pros and consequences explained to the complainant and to his relatives.

28.     It was pointed out for complainant that before proceeding with the surgery of rectum second opinion was not obtained by the complainant about the biopsy done that is of slide 2336/09.   The records does not show of such second opinion obtained by opposite parties before proceeding with the surgery on complainant.  However the learned counsel for opposite parties argued that after detecting of adenocarcinoma of rectum on biopsy complainant was discharged from the hospital on 23.7.09 and he was free till 1.8.09 as recorded at page 9 the history sheet and nothing prevented him from obtaining second opinion on the cancer detected in the biopsy.  However it is not the case of opposite parties that the biopsy samples were collected by them and was given to complainant for getting examined for second opinion through other laboratories or other experts before proceeding with the surgery.  As such the claim of opposite party that the complainant could have second opinion outside cannot be accepted. 

29.     Learned counsel for opposite parties to support the argument the step taken by opposite parties referred to Bailey & Loves short practice of surgery 26^th edition 2013 print by Taylor and Francis Group, LLC as to the management of cancer at page 133 the learned authors mention as follows:

Diagnosis and classification

Accurate diagnosis is the key to the successful management of cancer.  Diagnosis lies at the heart of the epidemiology of cancer; if there is an inaccurate picture of the pattern of a disease, reliable inferences about its distribution and causes cannot be drawn.  Precise diagnosis is crucial to the choice of correct therapy; the wrong operation, no matter how superbly performed, is useless.  An unequivocal diagnosis is the key to an accurate prognosis.  Only rarely can a diagnosis of cancer confidently be made in the absence of tissue for pathological or cytological examination.  Cancer is a disease of cells and, for accurate diagnosis, the abnormal cells need to be seen.

30.    In respect of investigation of colon cancer the learned author at page 134 observed as to while condition of investigation of colon cancer while referring to endoscopy mentions colonoscopy is the investigation of choice if colorectal cancer suspected, provided the patient is fit enough to undergo the required mechanical bowel preparation. Ideally, every case should be proven histologically biopsy before surgery.

31.    Referring to this it was argued for opposite parties that in the case on hand endoscopy was done and biopsy was done and the response finding was positive for adenocarcinoma.   Hence it was contended that all the necessary required steps were taken.   The learned author while dealing on Benign Tumours mentions:

Benign Tumours: The rectum, along with the sigmoid colon, is the most frequent site of polyps (and cancers) in the gastrointestinal tract.  Adenomatous polyps of the colon and rectum have the potential to become malignant.  The chance of harbouring invasive cancer is enhanced if the polyp is more than 1cm in diameter.  Removal of all polyps is recommended to give complete histological examination and exclude (or confirm) carcinoma, and also to prevent local recurrence.

On polyps relevant to the rectum:

Villous adenomas These have a characteristic frond like appearance.  They may be very large, and occasionally fill the entire rectum.  These tumours have an enhanced tendency to become malignant a change that can sometimes be detected by palpation with the finger; any hard area should be assumed to be malignant and should be biopsied.

Then mentioned as to differential diagnosis as to adenoma mentions:

When an adenoma shows evidence of induration or unusual friability, it is almost certain that malignancy has occurred, even in spite of biopsy findings to the contrary.  On the other hand, biopsy is invaluable in distinguishing carcinoma from an inflammatory stricture or an amoebic granuloma.

While summarising as to the diagnosis and assessment of rectal cancer the learned author mentions:

All patients with suspected rectal cancer should undergo:

• Digital rectal examination
• Sigmoidoscopy and biopsy
• Colonoscopy if possible (or CT colonography or barium enema)

32.     It was argued that all these steps were followed by opposite parties. Hence when the opposite parties have followed all the procedures and all the steps required by the doctors are taken and followed and there by all the care expected from them are followed they cannot be no complaint can be made against them for conducting the surgery.

33.     The learned author while dealing Solitary Rectal Ulcer Syndrome and Colitis Cystica Profunda where in the learned author observed:

Solitary rectal ulcer syndrome (SRUS) is an uncommon benign condition characterized by rectal bleeding, copious mucous discharge, anorectal pain, tenesmus, and feelings of obstructed defecation or incomplete evacuation that results in intense, prolonged straining to defecate.  This straining to defecate results in trauma and possibly ischemic ulceration of the anterior rectal wall.  Occasionally, the straining results in anterior mucosal prolapse, rectal intussusception, or rectal procidentia.  SRIS has its peak incidence in the 20s and 30s, with the female predominance emerging after the age of 30........

Typical solitary rectal ulcer ranges from 1 to 5 cm in size and is located on the anterior rectal wall 5 to 8 cm from the anal verge.  These traumatic ulcers can be distinguished from malignant ulceration because they are punched out and shallow with a gray white base and have a surrounding zone of edema or hyperemia without a thickened margin.  A biopsy is performed to rule out rectal cancer because an SRUS can mimic rectal cancer in appearance. Often, there is granularity, friability, and localized proctitis.  In general, up to 70% of solitary rectal ulcer lesions are located in the anterior rectum.  Some patients exhibit circumferential unlceration, particularly those with associated rectal prolapse or internal intussusception.   The ulceration can also present as a fugating polypoid mass or nodules or as an area of serpiginous ulceration with intervening pseudopolyps.  These lesions are far more difficult to differentiate from carcinoma or inflammatory bowel disease, and a biopsy is almost always necessary.

Diagnosis:

The diagnosis is almost invariably established by endoscopy and biopsy.  This procedure also excludes benign and malignant neoplasms.  Localized areas of inflammatory bowel disease, radiation proctitis, and pseudomembranous colitis.

While mentioning for further the learned author mentions in many cases:

A causal relationship does exist between internal rectal intussusception and SRUS, these displaced mucinous glands associated with ulceration make it imperative to differentiate this lesion from well-differentiated mucinous adenocarcinoma lest an unwarrantably radical operation    be performed.

It is further observed:

cellular atypia, multilayering of the cystic glandular mucosa, intraglandular budding and papillation, as well as a desmoplastic host stromal response, are features characteristics of carcinoma.

While considering the treatment the learned author observed:

 Medical management should be attempted in all cases expect for those patients complete full thickness rectal prolapse. Such treatment consists primarily of avoidance of straining and the use of bulk agents, stimulating, suppositories and enemas or laxatives to retrain the patient to achieve a regular bowel habit. With this approach as many as 70% of patient were improved and showed the healing of the ulcer.

The learned author further mention:

 Abdominal rectopexy and anterior resection have been successful in the treatment of patient with concomitant complete rectal prolapse, and these procedures have also had some success in treating patient with rectal intussusception and anterior mucosal prolapses.

34.     The learned counsel for opposite parties in the respect of carcinoembryonic antigen (CEA) referred to the details as to why it is done that it is used to cancer is  for some type of disease especially colon cancer. 

35.     Thus referring to these it was argued opposite parties have followed all the procedure prescribed. As such the complainant cannot make an issue of it that he is not correct and that there is no deficiency of service on their part.

36.     However the learned counsel for complainant referred to various authors on the subject and also reported cases.

37.   In on colonoscopy still Gold Standard for preventing colon cancer, Johns Hopkins expert says it is being a printout obtained from the internet learned author mentions:

A colonoscopy, which uses a thin, flexible tube with a light and camera attached to examine the lining of the large intestine, is one of the most highly recommended medical tests today and possibly one of the least understood.  The procedure can be used to help diagnose abnormalities such as ulcer polyps, tumors and areas of inflammation or bleeding as well as scree for cancer.  The colonoscopy  itself takes about half an hour and is performed under intravenous sedation. Some are hesitant to undergo a colonoscopy because of embarrassment or stories about how unpleasant the preparation  total cleansing of the bowel with laxatives and enemas is.

38.     Reference was also made to patient inform colon and rectum cancer beyond basis by other learned author Robert H Fletcher and another’s wherein they mention that:

 The test that detect pre-cancerous polyps are preferable; these includes colonoscopy, CT Colonography and the flexible sigmoidoscopy.   Stools test that detect blood on abnormal DNA are another option.  Being screened with any test is more important than which test is used.  

39.     The learned counsel has drawn our attention to the publication on frequently asked question about colostomy colon resection by the university of the Chicago wherein referring to colostomy the following observation is made:

Q. What is a colectomy?

A. A colectomy is the removal of part or all of the colon depending on the nature of the disease.  It is used to treat a variety of diseased, including:

• Adenomatous polyps: growths that arise from the mucosa (the inside lining of the colon)
• Diverticular disease: when pouches in the wall of the colon extend outward
• Inflammatory bowel disease: either Crohn’s disease or ulcerative colitis
• Cancer of the colon and rectum

This surgery on the large intestine can be performed in two ways: Conventional open surgery or laparoscopic surgery.

Laparoscopic/Minimally Invasive Colectomy: Laparoscopic colectomies, also called minimally invasive colectomy, enable the surgeon to perform the operation through small incisions (usually less than one inch in length).  Although the exact same operation is performed on the inside of the abdomen as an open surgery, with a laparoscopic procedure, the recovery is often faster and the cosmetic results are significantly better.  Here at the University of Chicago Medicine, we have been performing advanced laparoscopic colorectal surgery since 2002.  Our surgeons have performed more than a thousand of these procedures.

In fact the learned author also mentions what are as to the complications and risk associated with colectomy which are described as follows:

Q. What are the complications and risks associated with colectomy?

A. The potential complications after colectomy include:

• Bleeding
• Infection
• Injury to other organs, blood vessels, the ureter (the structure that carries urine from the kidneys to the bladder) and the urinary bladder
• A leak from the connection that is made between the two ends of the intestine
• Blood clots in the veins of the leg or the abdomen
• Hernia
• Obstruction of the bowel

It is important to thoroughly understand the operation and the reason for it.  Prior to the surgery, ask the surgeon about the volume and number of cases annually performed, the complexity of these cases, the overall complication rate and/or success rate for malignant and benign disease.

In the case on hand as we can make out operation of risk factors associated with colectomy was explained to complainant:

For an operation like a colectomy, it is important to find a surgeon that has had a specific training in this field and extensive experience in handling complex colorectal problems.  Furthermore, in complex benign and malignant colorectal diseases, a team approach offers the benefit of multiple experts working together with the patients best interest in mind.

40.     For an operation like this it is important to find a surgeon had specific training in this field and executed experience in handling complex colorectal problems.  Furthermore in complication begin and malignant colorectal diseases approached offers the benefits of multiple experts working with the patient.

41.     Referring to this it was argued by Mr. DS for complainant that this approached was not adopted by opposite parties by conducting the surgery of obtaining second opinion prior to the surgery.

42.     The learned counsel has drawn our attention to medicine on colonoscopy old standard for preventing colon cancer by John expert says a printout obtained from the internet on colonoscopy still gold standard for preventing cancers the learned author mentions:

Anthony Kalloo MD Professor of medicine and the Director of the Division of Gastroenterology and Hepatology, says that more than 90 percent of colon cancers start as polyps and that the great advantage of a colonoscopy over other testing methods, such as fecal blood test, sigmoidoscopy or barium enema, is that it make it possible to remove a suspect polyp or cancer immediately

43.     In  patient information on Colon and Rectum Screen Beyond the Biopsy, the learned author Robert H Fletcher and others mentions some test can also prevent the colon cancer in identifying abnormal growth called adeno matters polyps which can be removed before they become malignant. But in the case on hand it was argued, opposite parties adopted procedure to conduct surgery straight away.  In respect of colonoscopy in endoscopy and colonoscopy it is observed:

Colonoscopy: Colonoscopy is a test that looks at the interior lining the large intestine (rectum and colon) through a thin viewing instrument called a colonoscope.  A colonoscopy, inserted through the rectum, helps detect ulcers, polyps, tumors and areas of inflammation or bleeding.  During a colonoscopy, a biopsy can be performed and abnormal growths can be removed.  Colonoscopy also can be used as a screening test to identify and remove pre-cancerous and cancerous growths in the colon or rectum (colorectal cancer).  Colonoscopy enables visual inspection of the entire large bowel from the distal rectum to the cecum.  The procedure is a safe and efficient means of evaluating the large bowel.  The technology for colonoscopy has evolved to provide a very clear image of the mucosa through a video camera attached to the end of the scope. Compared with other imaging modalities, colonoscopy is especially useful in detecting small lesions such as adenomas; however, the main advantage of colonoscopy is that it allows for intervention, because biopsies can be taken and polyps removed.

44.    Then on guideline in respect of colon resection again obtained from the internet while considering polyps it is observed:

Adenomatous polyps are either pedunculated or sessile.  A pedunculated polyp is attached to the wall of the colon by a stalk whereas a sessile polyp is attached directly to the wall.  Benign features include sharp demarcation between the adenoma and the bowel wall, absence of ulceration and lack of fixation to the submucosa.

45.     Then in solitary rectal ulcer in respect of solitary rectal ulcer syndrome in the side that the treatment such as topical steroids, sulfasalazine enemas and botulinum toxin botox make is used for rectal ulcer syndrome.  However these treatments do not work for everyone and some are still considered experimental.  It was argued for complainant that after the biopsy dated 23.7.09 even though some medications were given no time was given for observation as hardly a week thereafter on 1.8.09 when complainant came to the opposite parties he was admitted for surgery of the rectum.  The contention of learned counsel for complainant is correct.  There is no explanation by opposite parties for not giving any time for the medicine to act.  As can be seen from the case sheet and steps taken by opposite parties none of the above steps were taken as mentioned by the learned authors.  This argument of learned counsel for complainant is correct.

46.     Choosing Wisely an initiative of the ABIM foundation list on colonoscopy as to when one need it and when not it is observed:

Colonoscopy is the most accurate test for cancer of the colon and rectum, proven to detect the disease early and save lives.  Gut even a very good test can be done too often.  Heres when you need it, and when you might not.

If the test doesn’t find adenomas of cancer and you don’t have risk factors for the disease, your chance of developing it is low for the next ten years.  That’s because the test misses very few adenomas, and colorectal cancer grows slowly.  Even if one or two small, low-risk adenomas are removed, your’re unlikely to develop cancer for at least five years, and repeating the test sooner provides little benefit.

But in respect of complainant, these steps were not followed by opposite parties.

47.     Then the learned counsel has also drawn our attention to the Colorectal Cancer Screening as to what should be done:

The majority of colorectal cancers begin as benign growths in the lining of the large bowel wall called adenomatous polyps.  Over the years (at least ten years), these polyps grow in size and number, thereby increasing the risk that the cells in the polyps will become cancerous and invade the wall and move on to other organs.  Approximately two third of these cancers are found in the large intestine and one third in the rectum.

And the types of screening test are described as follows:

PART A: TYPES OF SCREENING TESTS

1. Guaiac Fecal Occult Blood Test (GFOBT)
2. Fecal Immunochemical Test (FIT or IFOBT)
3. Flexible Sigmoidoscopy
4. Colonoscopy
5. CT Colonography (Virtual Colonoscopy)
6. Stool DNA Test (sDNA) or Fecal DNA Testing.

48.      All these test were not conducted according to complainant in respect of the opposite parties before the surgery in respect of colonoscopy it is observed:

If precancerous growths (polyps) or cancerous growths are discovered during a sigmoidoscopy, they may be removed and then biopsied with an instruction to perform a follow-up colonoscopy at a later date to look for polyps or cancer in the rest of the colon.  

Colonoscopy

In this test, the rectum and entire length of the colon are examined using a lighted instrument called a colonoscope, essentially a longer version of a sigmoidoscope.  The colonoscope is inserted through the rectum into the colon.  It has a video camera on the end that it connected to a display monitor so the doctor can see and closely examine the inside of the colon.  Special instruments can be passed through the colonoscope to remove (biopsy) any suspicious looking areas such as polyps, if need be.  During colonoscopy, precancerous and cancerous growths throughout the colon can be found and removed or biopsied, including growths in the upper part of the colon, where they would be missed by sigmoidoscopy.

49.     The learned counsel also referred to principles of Internal Medicine 12^th edition Volume 2 as to the treatment wherein the learned author on page 129 observed thus:

Following the detection of an adenomatous polyp, the entire large bowel should be visualized endoscopically or radiographically since synchronous lesions are present in approximately one-third of cases.  Colonoscopy should then be repeated periodically, even in the absence of a previously documented malignancy, since such patients have a 30 to 50 percent probability of developing a colorectal carcinoma.  Adenomatous polyps are thought to require more than 5 years of growth before becoming clinically significant; therefore, colonoscopy need not be carried out more frequently than every 3 years. 

In the case on hand opposite parties did not wait before proceeding with the surgery.

50.     In the case on hand as to the question of informed consent towards surgical procedure the Supreme Court of India in a reported case of Samira Kohli vs. Prabha Mancahanda (Dr) & Anr in SC and National Commission Consumer Law Cases (2005.2008) where it is held inter alia:

 (i) Medical treatment Surgical procedure Consent In the context of a doctor patient relationship, consent means the grant of permission by the patient for an act to be carried out by the doctor, such as a diagnostic, surgical or therapeutic procedure  consent can be implied in some circumstances from the action of the patient Except where

consent can be clearly and obviously implied there should be express consent.

(iv) Medical negligence  Surgical procedure Consent  The appellant who was neither a minor nor mentally challenged

was only temporarily unconscious, undergoing only a diagnostic procedure by way of laparoscopy The respondent ought to have waited till the appellant regained  consciousness, discussed the result of the laparoscopic examination and then taken her consent for the removal of her uterus and ovaries In the absence of an emergency and the matter was still at the stage of diagnosis, the question of taking her mothers consent for radical surgery did not arise Such consent by the mother cannot be treated as valid or real consent Further a consent for hysterectomy is not a consent for bilateral salpingo oopherectomy.

(v) Medical negligence Surgical procedure Consent Merely because respond chose to perform radical surgery in preference to conservative treatment respondent cannot be held to be negligent The correctness or appropriateness of the treatment procedure, does not make the treatment legal, in the absence of consent for the treatment.

In the case on hand consent form mentions of Department of surgery and department of Anaesthesiology is shown to have explained to complainant about surgery.  But no mention of explaining pros and cons of conducting and not conducting the rectum on complainant.

51.     In II (2009) CPJ 61 (SC) the Supreme Court while dealing on medical negligence and informed consent as to and of investigation prior to operations held:

(i) Medical Negligence Incomplete investigation prior to operation complainant operated for tumour Developed acute paraplegia immediately after surgery Discharged from hospital completely paralyzed Medical negligence and deficiency in service alleged Complaint allowed by State Commission Compensation granted.

(iii) Medical Negligence Informed consent No consent for operation taken Case record produced before Commission with reluctance, after several specific orders Written consent not part of record.

52.     In fact in on I (2009) CPJ 62 (NC) N. Lakshminarasimhaiah & Ors. Vs. Medical Administrator, Ravi Kirloskar Memorial Hospital & Research Centre & Ors. While dealing with 2(1)(g) and 14(1)(d) it was held that:

Consumer Protection Act, 1986 Sections 2(1)(g) and 14 (1)(d) Medical Negligence Wrong diagnosis Biopsy Lump growth reported as non cancerous Condition of patient deteriorated Complainant approached another hospital Cancer of Grade III diagnosed State Commission held, O.P. guilty of only error of judgment, not amounting to negligence   Dismissed complaint   Hence appeal   O.P Employed as specialist pathologist in Hospital Pathologist having basic knowledge of pathologist having basic knowledge of pathology could not have failed to provide correct finding-O.Ps attempt to disown report and shift burden on consultant miserably failed Wrong diagnosis not to be treated as error of judgment guilt on part of O.P. writ large Medical negligence proved Compensation awarded Hospital vicariously held liable to pay compensation Joint and several liability imposed. 

53.     Learned counsel for complainant referred to the argument of the learned counsel for that it was open to complainant to take second opinion after his discharge on 23.7.09 before he was readmitted on 1.8.09 for surgery.  It was argued that the complainant cannot find fault with.  As it was the duty of the opposite parties before proceeding to conduct surgery of the rectum for adenocarcinoma to seek a second opinion and that opposite parties cannot be permitted to take shelter under such flimsy ground that from 23.7.2009 till 01.08.2009 complainant was free.    In this connection reference was made to a reported case in Savita Garg vs The Director, National Heart Institute respondent of SC & National Commission Consumer Law Cases (1996.2005) where in it is held that the consumer Forum is primarily meant to provide better protection in the interest of the consumers and not to short circuit the matter or to defeat the claim on technical grounds.

54.     In the case on hand as considered from Ex.R3 and the relevant entry in relation to Ex.C7 the histopathology report issued by opposite party No.3 and the original entry at Ex.R3 the hand written entry at the Ex.R3 gives a clear indication that the original entries were negative for adenocarcinoma but for reason not explained before us.  The original entry were scored off and the interlinear and additions subtractions for whole effect led to make it a case of adenocarcinoma of lower margin III the original entry pertaining to complainant in Ex.R3 pertaining to examination of complainant was no evidence of malignancy and lower margin III showing this plastic features entered was cut off and well differentiated adenocarcinoma infold up to submucosae was entered.  The reason for tampering with the document is not explained before us.  As such we are of the considered view that the complainant had made to suffer for no fault of this when he approached repeatedly before opposite parties for finding remedy to his illness.  

55.     In fact after almost our order was ready, considering that entries at Ex.R2 & Ex.R3 and corrections interlineation were not put to opposite parties’ witnesses with the intention to tender an opportunities to opposite parties No.2, No.3 on 17.04.2017 we have directed through the learned advocates for the parties in their presence in open court during sitting of the Forum to keep opposite parties No.2 and No.3 present before the Forum on 18.04.2017.  Accordingly on 18.04.2017 opposite party No.3 appeared and on Oath answers to our questions post by us were recorded in question and answer form.  Opposite party No.3 did admit every one of the earlier mentioned alterations/ interlineation effected at Ex.R2 & Ex.R3.  At Ex.R2 & on the left hand page of Ex.R3’s page No.55 she mentioned those entries as effected by P G Students.  But opposite party No.3 admitted findings at Ex.R2 and original writings at Ex.R3 of finding as of opposite party No.2 and that she effected alteration of impression by striking original writings of opposite party No.2 and that she herself wrote in red ink.  Thus it is now clear as day light that opposite party No.3 herself altered original findings impression written by opposite party No.2.  At Ex.R3 original writings of impression reads as follows:

1. Rectum shows hyperplastic polyp normal

2. Lower margin I is within normal limits No evidence of malignancy.

3. Lower margin III shows dysplastic features.

to mean

1. Left hemi colectomy with serrated adenoma and a nonspecific ulcer in the rectum
2. Lower Margin I shows normal intestinal structure
3. Lower Margin III-shows well differentiated adenocarcinoma infiltrating up to submucosa-(as per computer printout)

56.     In the case of the report we have mentioned that the sample collected on resection when sent to 4 different laboratories Ex.C8 Histopathology report of Kasturba Medical College, Ex.C9 of Father Muller Medical College Hospital, Ex.C10 also of Father Muller Medical College, Ex.C11 Nandikur Clinical Laboratory and Ex.C12 Piramal Diagnostics indicates there was no cancer but only mucosal prolapse syndrome of the rectum.  As at Ex.C12 and C11 mention is made there is no feature suggestive of nonspecific chronic inflammatory and that no definite evidence of malignancy in the tissues sent and Ex.C10 mentioning the features suggestive of solitary rectal ulcer.   At Ex.C9 request for resend the specimen along with all the blocks.  In fact Ex.C10 is the histopathology report of the Department of Pathology of examination of slide labelled as 2549F/09 mentioned on suggestive of solitary rectal ulcer.

57.     In fact at the cost of the repetition, the histopathology report of Kasturba Medical College, Department of Pathology dated 1.10.2009 on examination of 2 blocks labelled 2336/09 block 2549F/092 after receiving of the specimen on 29.9.2009 of Father Muller’s Hospital indicate only ‘features are suggestive of solitary rectum syndrome’.   If this block slide with number 2336/09 was sent to Kasturba Medical College, Department of Pathology of earlier i.e. prior to surgery on 5.8.2009 i.e. after the report on 23.7.09 and obtained the report prior to admission on 1.8.09 the result would have been quite different.  Such situation would not have landed complainant over operation table.

58.     We may mention one more aspect at Ex.C8 as observed earlier in this order the blocks received by Kasturba Medical College, Department of Pathology with two blocks labelled 2336/09 block 2549F/092 sent by Father Muller’s Hospital mentioned as on 29.9.09 the reference number given to this report by the said department of pathology of KMC hospital was 16.8.2009 of Ex.C10 mentions of one slide 2549F/09 and Ex.C9 mentions of 2 block labelled as gross character of the specimen received as mentioned as 6938/09 and 6938A/09.   Thus it is clear even in respect of the slide of 2336/09 of complainant to other laboratory in the histopathological report came to conclusion completely different from what was arrived by opposite parties and that is, only of solitary rectal ulcer syndrome and not adenocarcinoma.  In the circumstances narrated above we are of the firm view that it is a clear case of medical negligence on the part of the opposite parties No.1, No.2 and No.3 in wrongly identifying complainant have rectal adenocarcinoma and then wrongly proceeding to perform unwanted rectal resection surgery which could was avoided.  Thus it is a clear case of opposite parties not adhering to the set standard expected of them (1) in not seeking 2^nd opinion, (2) in proceeding to perform resectomy without even considering for a second opinion.  Hence it is a clear case, in our view of medical negligence by opposite parties.   Hence we answer point No.2 in the affirmative.

 POINTS No. (iii):    In this case on the question of assessment of compensation is concerned subsequent to the identification of the worse case of complainant, complainant was subjected unwanted resectomy to suffer chemotherapy treatment at Fr. Muller Medical College & Hospital where the documents produced indicates blocking of the intestine and also vomiting feceas apart from other considering that the complainant has also undergone all the torture of treatment when it could have been

possibly managed without a surgery.   We are of the opinion it is a fit case to dispute opposite parties who are responsible for the situation of the complainant as to who had tampered Ex.R3 to alter evidence.   Considering but this document have come from proper authority the opposite parties hospital, Yenepoya Medical College & Hospital and opposite parties No.1, No.2 and No.3 in our view are equally jointly and severally are responsible to complainant and that complainant’s original problem never solved after the surgery-treatment by opposite parties. 

 2.     As to the amount of compensation is concerned considering the age of the complainant as 38 years at the time of the surgery and the inconvenience undergone and that the problem he had due to surgery.  In the circumstances we are of the opinion that an amount of Rs.10,00,000/ in the circumstances will meet the ends of the justice.  Wherefore the following

ORDER

     The complaint is allowed with cost.  Opposite parties No.1, No.2 and No.3 are directed to pay Rs.10,00,000/ (Rupees Ten lakh only) jointly and severally  to complainant.  Opposite parties are given 30 day time to comply.   On failure to comply this order within the above stipulated time, opposite parties shall pay interest at the rate of 9% per annum on the above sum from the date of complaint till the date of payment.

     Copy of this order as per statutory requirements, be forwarded to the parties free of cost and file shall be consigned to record room.

     (Page No.1 to 53 directly typed by steno on computer system to the dictation of President revised and pronounced in the open court on this the 20^th April 2017)

               MEMBER                                                 PRESIDENT

      (LAVANYA M. RAI)                          (VISHWESHWARA BHAT D)

  D.K. District Consumer Forum                  D.K. District Consumer Forum

             Mangalore.                                              Mangalore.

ANNEXURE 

Witnesses examined on behalf of the Complainant:

CW1  Mr. Mukesh

Documents marked on behalf of the Complainant:

Witnesses examined on behalf of the Opposite Parties:

RW1 - Dr. Harischandra, Prof, Dept. of General Surgery at  OP Hospital,

RW2 - Dr. P.J. Yaranal, Dept. of Pathology,

RW3 - Dr.K. Pushpalatha Pai, Sr. Prof.  & HOD, Pathologist in  Yenepoya Medical College Hospital

RW4 -  Dr. Lakshmi Rao, Prof & Head of Dept. of Pathology, Kasturba Medical College, Manipal

Documents marked on behalf of the Opposite Parties:

Dated: 20.4.2017                                          PRESIDENT