SMT. BANDANA ROY, PRESIDENT
The synopsis of the complaint case is that the complainant is a BPL category labour by profession and his wife Chhabita Kar is now counting her last days due to the careless treatment of the OPs. Matter is that in the last part of March, 2017 wife of the complainant ( herein after the patient) started feeling severe pain in her left breast. The complainant took her wife to Dr. S K. De in his private chamber on 24.03.2017 who diagnosed the patient as suffering from Lump Breast – 3’Clock’. He advised the complainant for USG of both breasts abscess Breast test of his wife and prescribed some medicines. Accordingly the complainant took her wife to the clinic of OP No. 3 and 4 for the said test. The OP no. 3 and 4 held the USG test as per advise of the OP no. 1 most carelessly and found only “Collection measuring 26 x 25 mm at 2 O’clock position 5 mm away from nipple in left breast and “No obvious auxiliary lymphaenophy is noted”. With the said report the complainant ran to the OP no.1 with the patient, in his turn the OP no.1 without advising for any other examination asked the complainant to admit the patient in the OP no 2 nursing home for operation. Accordingly the complainant got her wife admitted in the OP no. 2 and the OP no. 1 and 2 without any further diagnosis and other pathological reports caused the operation and discharged the patient on the next date on 17.04. 2017 in a feeble condition without any further direction for follow up check up. The condition of the patient got worsened day by day and then the complainant took his wife to another Surgeon of Contai S D Hospital Dr. P. Sinha who again opted for an USG of left breast of the patient and the same was done by the complainant at the clinic of OP no. 4 on 02.06.2017. The impression of this USG report was “LARGE SOLID MASS IN LEFT BREAST. POSSIBLY CARCINOMA BREAST- USG BLARDS CATEGORY 4/5”. On consulting the said report Dr. P Sinha referred the patient to Chittaranjan Cancer Hospital for treatment. However, the complainant took his wife to Medical College and Hospital, Kolkata on 13.06.2017 and till date the patient is under treatment there. At the instance of the Medial College biopsy report was done and it was found “Invasive Ductal Carcinoma ,Grade-3 left breast”. It is the allegation of the complainant that if the OPs no. 3 and 4 were careful in preparing the USG report and if the OPs 1 and 2 could follow the appropriate line of treatment the life of his wife could not be at stake like the present one. The complainant had to incur a sum of Rs. 1.5 lakhs approx, for treatment of the patient till date.
Hence, the instant case with the prayers as made in the complaint petition has been filed by the complainant on the allegation of deficiency of service on the part of the OPs.
The OP Nos. 1 to 3 have filed a joint written version and denied all the material allegations made against them and claimed dismissal of the complaint on various grounds of law.
The positive defense of these OPs is that Dr. S . Sarawgi MBBS Radiologist made the USG report but he has not been made party in this case. These OPs allege that since discharge of the patient from the OP no 2 nursing home, she allegedly faced problem in her breast but did not contact the OP no. 1 , on the contrary consulted another surgeon Dr. P. Sinha at Contai SD Hospital. The OP no. 1 caused the operation on the basis of the USG report. These Ops contended that if the post operation problem of the patient could be attended by the OP no 1 no such critical situation could arise ; he certainly could take such action for the remedy . The patient was advised for check up after three days of the discharge from the nursing home but the patient did not turn up. The patient was discharged from the OP No. 2 nursing home with proper advice and in good condition; the OPs have no deficiency in rendering treatment in the OP no 2 nursing home.
On such other grounds the OPs have prayed for dismissal of the complaint petition.
The OP No. 4 has filed separate written version and has contested the case. He has prayed for dismissal of the case on various grounds of law. She has been made party with an ill intention. For their livelihood this OP runs a X ray clinic and UGS centre and maintain clarity and working very carefully with modern technical staff with modern machinery and equipment.
On the pleadings of the parties as above, the following issues need be considered (1) whether the case is maintainable and whether the complainant is entitled to get the reliefs as prayed for.
DECISION WITH REASONS.
Both the points are taken up together for discussion for the sake of convenience and brevity.
Perused the complaint, the written version of the OP no. 1 to 3 as well as that of the OP no. 4, the affidavit in chief of the complainant and questionnaires filed by the OP. No. 4 and the reply and the thereof and the vice versa filed by the complainant and OP no.4. Heard the argument as advanced by the Ld. Advocate for all sides. Also perused the decisions, literatures and documents filed in record. Considered.
It is the allegation of the complainant that he took his wife to the chamber of the OP no. 1 on 24.03.2017 who after thorough check up diagnosed the disease as Lump Breast 3 O’clock and advised her for ultra sonography of both breasts and prescribed some medicines. As per his direction the complainant took her wife to the clinic of the OP no 3 for USG test on 24.03.2017. On the same day USG of the patient was done which according to the complainant was done quite hastily and in the report they found ” Collection measuring 26 x 25 mm at 2 O’clock position 5 mm away from nipple in left breast and “No obvious auxiliary lymphadenopathy is noted”. The further grievance of the complainant is that the OP no. 1 without opting for any other tests or further confirmations, advised the complainant to admit the patient at the OP no. 2 nursing home for operation. The complainant got his wife admitted there on 16.04.2017 and on the same day the OP no1 without holding any other pathological test, preferred the incisional drainage , fibroadenolosis to exclude and discharged the patient on the nest day on 17.04.2017 in a feeble condition and without any direction of further check up. This grievance has been denied by the OP no.1 in their written version.
Ld advocate for the OP no.1 and 2 argued that it would seen from the discharge certificate that the OP no. 1 advised some medicines to the wife of the complainant.
We have perused the discharge certificate issued by the OP no. 2 where it appears that no anesthesia was given to the patient before the incisional drainage done. Condition of the patient during discharge was not mentioned and some medicines were advised at the back side of the discharge certificate but no date for check up was mentioned.
Ld advocate for the OP no. 1 argued that there was no operation and ld advocate for the complainant argued that there was operation and it was done hastily and for that reason problem arose on her body.
Surgery as defined in the Oxford English Dictionary as :
The art or practice of treating injuries, deformities and other disorders by manual operation or instrumental appliances the surgeon, therefore, is one who makes people better chiefly by the exercise of manual skills in performing invasive’ procedures. In the development of medicine, surgeons have in consequence tended to be regarded as technicians, in contrast to physicians who are seen as contemplative, analytical and devoted to the philosophical. However, these distinctions, if they ever existed between the roles of physicians and surgeons have become increasingly blurred. Invasive procedures are frequently done within medical specialties.
One of the commonest causes of litigation is the removal of an innocent lump only to find that a nerve is involved by the mass or indeed is the structure of origin. Beware oif tumors arising from the nerves in the arms in thin subjects. The relationship to blood vessels is almost as important, because bleeding encountered during surgery for which there has been inadequate preparation can be dangerous to the life of the patient No examination of a mass is complete without examination of the draining lymph nodes Enlargement must be explained and included in the diagnostic profile of the lump. In RCG Russel and others, 24th Edition, it was observed that history taking is about listening and thoughtful questioning, whereas examination involves observation and interpretation. The interpretation of the history and examination relies on knowledge of the anatomy, physiology and pathology in order to create a diagnosis hypothesis. The hypothesis is confirmed by the appropriate radiological and laboratory tests. Defining the appropriate investigations saves time and expense, and enables the patient to proceed on the rest of surgical episode to achieve a cure for his or her initial complaint.
In this case we find from the complaint that initially wife of the complainant was feeling pain on her left breast during the later part of Mach, 2017 when she was taken to the doctor OP no 1 and it appears that admittedly the OP no 1 operated the patient as per the written version, but it appears that there was incisional drainage done by the OP no. 1 in the OP no. 2 nursing home. No diagnosis was made after the USG and there was no discussion with the husband of the patient , the complainant herein, in cleaning the left breast without anesthesia. It is not explained by the OPs no 1and 2 what prompted them to clean the left breast lump in the process of incisional drainage. In the USG report dated 24.03.2017 impression was “’ left breast abscess. That means after the incisional drainage by the OP no 1 in the OP no 2 the patient had a abscess in the left breast.
It appears from the Annexure X an XI that the complainant got tested his wife in the Medical College Hospital at Kalkata and from the medical report of that hospital it appears that there was report of malignancy in the left breast of the wife of the complainant which was detected in the aforesaid medical college. From the report of Roy and Trivedi which is Histopathology report, shows impression of “Invasive ductal carcinoma, Grade 3 left breast”. The Ops No. 1 to 3 did not challenge the said report of Roy and Trivedi and that means there was cancerastic malignancy in the left breast of the wife of the complainant when the drainage was done by the OP no. 1 in the OP no. 2.
Through the Ld. Advocate for the OPs referred a decision reported in 2015 (3) CPR 18 (NC) where it has been held that doctors cannot be held responsible for mis-happening in critical cases but here we find that if it is taken by the OPs no. 1 and 2 that the case is critical , then without any anesthesia how drainage was done on the breast of the patient when they knew the case is critical. It is obviously an act of deficiency on the part of the OPs no. 1 and 2 in dealing with the said patient Further the ld advocate for the OPs referred a decision reported in 2018 (1) CPR 507 (NC) wherein it has been held that ‘” it is known that no cure no success ‘ is not a negligence. This fashioning of liability upon the treating doctors is unjustified.
It was also in the literature of Michel M.Henry and ors, 2nd Edition we find that the biological effects of a surgical procedure and increasingly well known but there are important psychological and attitudinal matters that have been much less studies and sometimes ignored by surgeons. Most patients are relatively ignorant about their body deep to their skin. Irrespective of the organ or area that require surgical attention and physical invasion of the body creates fear and there is a lingering belief that surgery means a close brush with death. The surgeon must understand such fears an attempt to relieve them by careful explanation of the procedure and a frank account of possible complications, including a particular psychological impact. Masterectomy for breast cancer is a good and obvious example of a severe injury to a woman’s body. Surgery at all times considers the psychological impact of their advice and actions. A caring approach , considerate discussion with patient and their families and detailed, honest consent process will help their patients overcome these problems.
In this case we know that the wife of the complainant ultimately died at the age of 45 years during pendency of this complaint case.
We have carefully gone through the documents filed by the complainant. It appears that the patient was admitted on 16.04.17 and was discharged on 17.04.17 under Dr. P.Ganguly and assistant S.K. Barik. The complain was acute pain in the left breast abscess. Treatment was incisional drainage done. Condition during discharge – Nil. Anesthesia – Nil. Advice on discharge certificate – 4 medicines only. Before that on 24.03.17 an USG of both breast of the wife of the complainant was done in the new Srikrishna Ray and USG Clinic. The procedure was taken : USH of both breasts done by using high frequency transducer. Skin and subscutaneous layers show no obvious abnormality. Lactferous duts are not d ilated. Collection measuring 26 x 25 is noted at 2 O clock position ( 5 cm away from the nipple) in left breast. Rest of the breasts parenchyma shows normal echctexture. Underlying pectorails muscle layer is normal and No obvious auxiliary lymphadenopathy is noted. Impression was Left breast abscess.
It can be assumed that this report was placed before Dr. P Ganguly, the OP no. 1 and OP no. 2 when they gave treatment of incisional drainage in the left breast of wife of the complainant.
Accident during course of medicine or surgical treatment has a wider meaning. Ordinarily accident means an unintended unforeseen injuries occurrence ; something that does not occur in the usual course of events or that could not be reasonably anticipated. Care has to be taken to see that the result of an accident which is exculpatory may not persuade the human mind to confuse it with the consequence of negligence. Hon’ble Supreme Court held that under the law of negligence, professionals such as lawyers, doctors, architectures and others are included in the category of persons professing some special skill or skilled persons generally. Any task which is required to be performed with a special skill would generally be admitted or undertaken to be performed only if the person possesses the requisite skill for performing that task. Any reasonable man entering that branch, impliedly assures the person dealing with him that skill which he professes to possess shall be exercised and exercised with reasonable degree of care and caution. He does not assure his client of the result. A physician would not assure his patient of full recovery in every case. A surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial , much less to the extent of 100% for the person operated on. The only assurance which such a professional can give or can be understood to have given by implication is that he is possessed of the requisite skill in that branch of profession which he is practicing and while undertaking the performance of the task entrusted to him he would be exercising his skill with reasonable competence. This is all the person approaching the professional can expect.
In the present case, it appears that there was a report before the Doctor , OP no 1 and nursing Home, the OP no. 2 showing left breast abscess., Common sense says that this type of abscess in the breast of a woman lead to serious disease. So, to be sure a test of histopathoogy or septopatholoty examination should be given before doing any operation on the breast of a woman. Anesthesia should be given on the operation site where there is injury before the drainage or operation. This standard of treatment requires special skill and nursing home who engage the doctors for such operation. Any latches in this regard can lead to cancerous disease of the patient and patient may die in future. We do not find from the discharge certificate where from we can assess the skill of the doctor. But it is sure that the OP no 2 who engaged that doctor had knowledge of the disease or injury the patient had. We can safely say that both the OPs 1 and 2 did not exercise their skill with reasonable care and caution in the given case.
The standard to be applied for judging , whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not necessary for every professional to possess the highest level of expertise in that branch which he practices. But there should be at least lowest standard that would be regarded as acceptable.
The medical professionals is often called upon to adopt a procedure which involves highest element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure . Which course in more appropriate to follow, would depend on the facts and circumstances of the given case.
From the treatment given by the doctor in this case it appears that the treatment was given in a most casual manner and not thinking of the future risk of the body of the patient.
Now the question is whether the OP no 2 was negligent in handling the case. The term ‘vicarious’ refers to an act done by one for another. Thus, vicarious acts refer to acts done through delegation or by a person deputed by anther. Oxford Medical Dictionary says that vicarious pertains to the performance of part of the functions normally performed by another. For instance, liability of the master for the acts of his servants or the liability of husband for the acts of his wife. Thus hospitals are often held to be liable for the acts of its employees, doctors and other medical and paramedical staff
It appears that there is no advice for checking up the injured portion of the patient on the back side of the discharge certificate which clearly shows except medicine there was no any advice from the side of the OP nos. 1 and 2 for further checking the condition of the patient.
It appears that the complainant has filed some papers /documents which show that the wife of the complainant had been taken to Medical College & Hospital at Kolkata for treatment. We have perused the prescription ands report of the Medical Unit which clearly show that the visiting doctor advised the patient to attend breast clinic for further treatment and on primary test doctors found “Anilla an enlarged mobile lender lymphnode in curter or group …. In page 11 of the report of the said Department it was mentioned: Totally advanced breast CA in upper outer quadram of left breast and skin where mammography BIRADJ – 4/5. Advice was urgent biopsy, but neither OP no. 1 nor 2 took preferred any biopsy of the drainage particulars which came out after operation from the left breast of the patient which was very much essential for a skilled doctor and Nursing Home for a advice to check up the operated portion of the patient. Thereafter it appears from the report of Analysis Centre SERU , department of Microbiology that there may be an alteration in the growth characteristics of an organism if the patient is under a treatment with any antibiotic and if not withdrawn at least 48 hours prior to the test. Hence, the interpretation may be done accordingly. Test has been conducted on the particular sample which is received by the lab. The rest result depend upon the quality of sample and proper collection. There is the histopathology report by Drs. Tribedi and Roy dated 21.06.2017. Which shows that here is multiple linear strips of tissue . Impression : All the strips embedded invasive ductal carcinoma, Grade 3 left breast. That means after the drainage of the puss from the left breast the disease spread up automatically and according to the complainant, in para 7 of the complaint that patient was in a feeble condition on 17.04.2017 without any direction of further check up by the OPs no 1 and 2 and the condition of the patient got worsened day by day without any improvement.
It appears that during pendency of this complaint case the wife of the complainant died on 05.03.2018 and the death certificate has been filed by the complainant.
So, after careful consideration of all the medical papers and from the cross-examination and from the written version of the OPs 1 and 2 and considering the argument advanced by all the parties, we find that there was negligence on the part of the OPs 1 and 2 in the treatment towards the wife of the complainant which was dome more casually in such a serious case without applying the reasonable care . In the result they cannot avoid compensation for the death of the wife of the complainant.
The complainant has spent Rs. 1.5 lakhs till filing of the case for the treatment of his wife. The complainant has prayed for a consolidated compensation of Rs. 4,90,000/- for medical negligence and deficiency of service on the part of the OPs .
We have also carefully considered the written version of the OPs 3 and 4 and also argument advanced by the ld advocate for these Ops.
After considering everything we do not find any lapses on the part of the OPs no 3 and 4 in this case. There was no negligence on the part of the radiologist and in the matter of taking X- ray of the patient in the clinic.
Considering each and every aspect of the case we find that the OPs no 1 and 2 are jointly and severally liable for the payment of compensation of Rs. 2,00,000/- including the litigation cost for the hazards faced by the complaint and ultimate death of his wife, which we find to be adequate,
Both the points are answered accordingly.
Hence, it is
O R D E R E D
That CC/483 of 2017 be and the same is allowed on contest against the OPs. No 1 and 2 and dismissed on contest against the OPs. no 3 and 4.
The OP No.1 and OP No. 2 are jointly and severally directed to pay the complainant a sum of Rs 2,00,000/- as compensation including litigation cost within one month from the date of this order, in default the said OPs would be liable to pay 10% interest on the awarded amount till its full realization.
Let copy of the judgment be supplied to all the parties free of cost.
