Date of filing: 30.04.2012
Date of Order: 19.05.2015
BEFORE THE DISTRICT CONSUMER FORUM-II, EAST GODAVARI
DISTRICT AT RAJAHMUNDRY
PRESENT: Sri B.Vinay Kumar, B.Sc., B.L., PRESIDENT
Smt H.V. Ramana, B.Com., L.L.M., MEMBER.
Sri A. Madhusudana Rao, M.Com., B.L., MEMBER
Tuesday, the 19th day of May, 2015
C.C.No.25 /2012
Between:-
1) Mapathula Venkata Satyaveni (died).
2) Mapathula Durga Phani Kumar, S/o. Suryanarayana,
Hindu, aged 39 years, Document Writer.
3) Mapathula Siva Jyothirmai, D/o. Durga Phani Kumar,
Aged 8 years, Student.
4) Mapathula Mohan Phaneeswar, S/o. Durga Phani Kumar,
Hindu, aged 6 years, Student.
5) Karri Venkata Satyavathi, W/o. late Appa Rao, Hindu,
Age 47 years, Housewife. … Complainants
(Complainants 3 and 4 being minors rep. by Guardian –
father, 2nd complainant)
(All are residents of D.No.36-37-22/1, Guthulavari Street,
Innespeta, Rajahmundry – 533 101, E.G. Dt.)
(Complainants 2 to 5 are added as L.Rs. of deceased
1st complainant – as per orders in IA No.102/2013
dated 15.7.2013).
And
Dr. V. Uma Lakshmi, W/o. Santaram, Hindu, Aged 40 years,
Occ: Doctor, Aruna Nursing Home & Poly Clinic,
Kotipalli Bus Stand, Rajahmundry. … Opposite party
This case coming on 10.04.2015 for final hearing before this Forum in the presence of Sri M. Murali Prasad and Sri T.V. Rama Mohan Rao, Advocate for the complainant and Sri Ch. Prabhakar Rao, Advocate for the opposite party, and having stood over to this date for consideration, this Forum has pronounced the following:
O R D E R
(Per Sri B. Vinay Kumar, President)
This is a complaint filed by the complainants 2 to 5 U/Sec.12 of Consumer Protection Act 1986 to direct the opposite party to pay a sum of Rs.20,00,000/- towards damages, medical expenses on account of the willful negligent treatment given by him and award costs of the complaint.
2. The case of the complainant is that she suffered pain in her right breast in the year 2011 and approached the opposite party for treatment on 10.1.2011 after clinically examining, the opposite party had issued prescription and advised to use medicines and also advised to undergo Pathological test for the purpose of diagnosed her problem. She underwent Mammography test with Sree C.T. Scanning Center, who issued report. After verifying the scan report, the opposite party prescribed further medicines and the complainant used medicines for four months as the pain did not subside. The opposite party advised to undergo operation for removal of lump in the right breast. Accordingly, she underwent operation on 11.5.2011, wherein the lump was removed. A piece of lump sent for biopsy to Neo Diagnostic Center, Rajahmundry for further investigation. As the pain did not subside, she approached M/s. G.S.L. Cancer Hospital, who addressed a letter to the Neo Diagnostic Laboratory for Pathological Report. The biopsy report revealed that the complainant was suffering from infiltrative duct cell carcinoma. The doctors of GSL Hospital informed her that the tumor was grown and giving treatment of chemotherapy at that time, she is feasible. Thereafter, the complainant went to NIMS Hospital, Hyderabad wherein she was operated and her right breast was removed due to infiltrative duct cell carcinoma. The opposite party had given improper treatment negligent and removed the lump in the breast which resulted removal of the breast subsequently. It had occurred due to improper and willful negligent diagnosis made by the opposite party. The complainant got issued a legal notice to the opposite party on 12.9.2011 for which a reply was issued by the opposite party wherein she advised to the complainant to follow procedures connected with the investigations and attain the risks. Hence, the complaint.
3. The opposite party filed its written version denying all the allegations made by the complainant. It is a fact that the complainant approached this opposite party on 10.1.2011 for consultation. Soon after the first consultation, this opposite party after a clinical examination observed a lump in the right breast of the complainant. She had no pain and tenderness with small freely mobile mass in the right breast. The opposite party on examination did not find palpable lymph nodes. Therefore, she was advised a thorough evaluation including excision/biopsy. The complainant was unwilling for investigations at that time and therefore, this opposite party had to prescribe medicines as per the patient’s request and reluctance to undergo investigations. The patient ultimately expressed her willingness for Mammography on 27.1.2011 after using the medicines prescribed for some time. Therefore, Mammography was done on 27.1.2011. The report of the Mammography indicated impression that a small evolving abscess in the right breast. The said Mammography was conducted by M/s. Sri City Scan Center. Upon the report of the Mammography, the patient was given antibiotics and was advised to have biopsy immediately as a course of further investigations. However, the complainant was non-cooperative and was not willing for such procedure due to fear and for other reasons. Therefore, though this opposite party advised the complainant to have biopsy soon after receipt of the Mammography report of the complainant for her own reasons failed to undergo the same immediately despite such advice given by this opposite party. Subsequently at intervals, the complainant approached this opposite party for review as an outpatient on one or two occasions and on all the occasions, she was explained about the need to have further investigations especially biopsy to come to a definite conclusion about the cause of the problem. However, the complainant was unwilling of the same and opted for symptomatic and conservative treatment. The patient was also explained about the ailment and the possible risks and benefits of the related procedures. However, the complainant was postponing to undergo such investigations and procedures due to fear of procedures and for other reasons. Subsequently, thereafter the husband of the complainant was informing the opposite party that the complainant was scared of the procedures. The complainant and her husband opted for conservative management of the problem fearing about the procedures and investigations advised by the opposite party. On all such visits of the complainant, she had been explained about the risk of postponement of procedures and also about the need to undergo such investigation and procedures as quickly as possible. Therefore, the unusual delay in undergoing for further investigations and procedures was only due to the reluctance of the complainant and her family members to do so out of fear and other reasons, but not due to lack of proper advice from the opposite party. On 10.5.2011 finally the complainant came forward for undergoing the procedure required which was advised by the opposite party during the time of the earlier visits of the patient. Therefore, immediately on 11.5.2011 the opposite party after explaining the risks and benefits of the procedure to the complainant and her family members excised tumor from her right breast by conducting lumpectomy, as per the consent given by them. The said procedure was done by the opposite party by taking all requisite preoperative care as well as post operative care. Soon after the procedure the specimen was sent to biopsy to M/s. Neo Diagnostic Lab for Histo Pathological examination. The complainant was also informed that the further treatment would depend upon the Histo Pathological report. Subsequent to the procedure, the period was uneventful and the wound healed well. The sutures were removed on the 7th day after lumpectomy. The patient’s condition was stable at the time of discharge on 12.5.2011. Subsequently the histopathology report was received on 26.5.2011 from Neo Diagnostic Laboratories which revealed that she was suffering from infiltrating duct cell carcinoma. The same was immediately communicated to the complainant and her husband and she was referred to M/s. GSL Cancer Hospital for further medical attention. It appears she advised Mastectomy by M/s. GSL Cancer Hospital, which was required treatment at that point of time. Soon thereafter the husband of the complainant approached this opposite party and informed her that the complainant was afraid of such surgery but the opposite party explained and convinced them about the treatment options available to the patient. Finally, the complainant went to NIMS Hospital at their will and did not visit the opposite party thereafter. Hence, there is no deficiency of service on the part of this opposite party and the complaint is liable to be dismissed with exemplary costs.
4. Both filed proof affidavits. Exs.A1 to A25 have been marked for the complainants and Exs.B1 and B2 have been marked for the opposite party.
5. Both filed written arguments. Heard both sides.
6. Points raised for consideration are:
1. Whether there is any deficiency in service on the part of the opposite party?
2. Whether the complainants are entitled for the reliefs asked for?
3. To what relief?
7. POINT No.1 & 2:- As per the available record, originally, this complaint was filed by the 1st complainant and she died on 16.5.2013 during the pendency of this complaint and complainants 2 to 5 were added vide IA No.102/2013 dt.15.7.2013.
On perusal of the record, the deceased 1st complainant approached the opposite party doctor on 10.1.2013 complaining pain in right breast as the opposite party doctor is their family doctor. The opposite party doctor noted that the complainant had mass in right breast and diagnosed as Fibro Adenoma and prescribed medicines on 10.1.2011 and on 27.1.2011 as per bills along with Ex.A1 O.P. card. The opposite party doctor further advised Mammography and Sono Mammography on 27.1.2011 as per Ex.A2 report and the impression in that report is SMALL EVOLVING ABSCESSES – RIGHT BREAST. Again, the opposite party doctor prescribed medicines on 27.1.2011 and reviewed the patient on 4.2.2011, 11.3.2011, 19.3.2011, 24.3.2011 as per the bills contained in Ex.A1. As per the case summary under Ex.B2 typed version, the complainant was admitted in the opposite party hospital on 10.5.2011 and got operated lumpectomy of right breast and the specimen was sent immediately to Neo Diagnostic Lab for Histo Pathological Examination and the patient was discharged from the hospital on 12.5.2011. The original diagnosis is Fibro Adenoma Right Breast, but as per the Histo Pathological report dt.26.5.2011, the impression was that infiltrating duct cell carcinoma with duct cell carcinoma in-situ (comodo pattern). The opposite party doctor prescribed medicines up to 10.6.2011. After that the complainant approached the GSL Hospital, Rajahmundry as referred by the opposite party doctor as the pain in the right breast still persist even after the surgery conducted by the opposite party doctor. The GSL hospital authorities informed the complainant that she was suffering from infiltrative duct cell carcinoma and tumor was grown.
Thereafter, the complainant went to NIMS, Hyderabad on 6.7.2011 and as per the pathology report of that institution, the impression was features are consistent with infiltrative duct cell carcinoma grade-II as per Ex.A4. Ex.A5 is the ultra sound scan report and the impression is right auxiliary limphadenopathy. Ex.A6 dt.19.7.2011 is skeletal scintigraphy. The deceased 1st complainant undergone chemotherapy treatment and tests for her right breast carcinoma at NIMS, Hyderabad from 25.7.2011 to 3.2.2012 as per A7 to A25 exhibits. The complainant got issued legal notice dt.12.9.2011 to the opposite party and received reply. Further, the complainant got issued a rejoinder notice dt.2.1.2012 to the opposite party.
As per the medical science, breast cancer is cancer that develops from breast tissue. Signs of breast cancer include a lump in the breast. Breast cancer most commonly develops in cells from the lining of milk ducts and the lobules that supply the ducts with milk. Cancers developing from the ducts are known as ductal carcinoma, while those developing from lobules are known as lobular carcinoma. Some cancers develop from pre-invasive lesion such as ductal carcinoma in-situ. The first noticeable symptom of breast cancer is typically a lump that feels different from other breast tissue with constant pain in that part, nipple changing position or shape or becoming inverted, skin puckering or dimpling, a rash on or around a nipple. In some cases what initially appears as a fibro adenoma could in fact be a phyllodes tumor, which are classified on the basis of their appearance under the microscopic as benign, borderline or malignant. Occasionally, breast cancer presents a metastatic disease i.e. cancer that has spread beyond the original organ. Fewer than 20% of lumps are cancerous, and benign breast diseases such as mastitis fibro adenoma of the breast are more common causes of breast disorder symptoms and there is possibility of an underlying breast cancer at all most any age. The deceased 1st complainant approached the opposite party doctor, who is qualified MBBS doctor, but not a specialist in Oncology with pain in her right breast for the first time on 10.1.2011 and the opposite party doctor noted on the Ex.A1 O.P. card that the complainant complained of mass in right breast and initially diagnosed as fibro adenoma and prescribed some medicines on 10.1.2011. Again, on review prescribed medicines only on 27.1.2011. The opposite party doctor in her cross examination admitted that she did not note what the tests to undergo by the deceased 1st complainant and also stated that she did not note that the patient was unwilling to undergo tests prescribed by her. Further, the opposite party doctor stated that she did not make a note of details of Ex.A2 report and the medicines prescribed by her and also admitted that she did not note the family history of 1st complainant in the Ex.A1 O.P. card.
The two most commonly used screening methods physical examination of the breasts and mammography can offer an approximate likelihood that a lump is cancer or simple cyst. When this examinations are inconclusive the doctor can remove a sample of the fluid in the lump for microscopic analysis known as fine needle aspiration and cytology (FNAC). The diagnosis of breast cancer is confirmed by biopsy of the concerning lump. The opposite party doctor in her cross examination stated that she advised the deceased complainant on 10.1.2011 itself to have mammogram test, FNAC and blood investigation, but the same was not noted in her O.P. card. The opposite party doctor stated that the deceased 1st complainant refused and non-cooperated to undergo tests prescribed by her. Under those circumstances, the opposite party doctor could have stopped further treatment and should advise the 1st complainant to approach any other doctor for the treatment. The deceased 1st complainant i.e. P.W.1 in her cross examination on 9.3.2013, denied the allegation of the opposite party doctor that she refused to undergo tests prescribed by the doctor and non-cooperative during her visit to the opposite party doctor for treatment. Further, the opposite party doctor admitted that she did not prescribed MRI test or CT Scan. But, as per Ex.B2 case summary, the deceased 1st complainant was admitted on 10.5.2011 for lumpectomy/biopsy and the Histo pathology report dt.26.5.2011 under Ex.A3 was received by her on 27.5.2011. The deceased 1st complainant in her cross examination stated that the opposite party doctor advised her to go for surgery as the same was not cured by medicines.
The stage of breast cancer is the most important component of traditional classification methods of breast cancer, because it has a greater effect on the prognosis than the other considerations. For example, ductal carcinoma in-situ involving the entire breast will still be stage zero and consequently an excellent prognosis with a 10 year disease free survival of about 98 per cent. Stage one cancer (DCIS, LCIS) have an excellent prognosis and are generally treated with lumpectomy and sometimes radiation. Younger women tend to have a poorer prognosis than post-menopausal women due to several factors. Their breasts may change with their menstrual cycles, they may be nursing infants, and they may be unaware of changes in their breasts. Therefore, younger women are usually at a more advanced stage when diagnosed. There may also be biologic factors contributing to a higher risk of disease recurrence for younger women with breast cancer.
As per Dr. G. Suryanarayana Raju, Oncology Surgeon, NIMS Hospital, Hyderabad, who was examined as P.W.2 stated that they treated the deceased 1st complainant for further treatment of cancer after obtaining biopsy and performed surgery for the removal of right breast. The doctor further stated that they exclude conditions like fibro adenoma, fibro cystic disease and other inflammatory conditions before considering cancer because of her young age. The P.W.2 doctor stated that to some extent stage alone does not dictate breast conservative surgery, but the other Biological factors (Prognosis factors) will be taken into consideration whether to preserve the breast or to remove totally. In the present case, the patient got bad prognostic factors, she required modified radical mastectomy and chemotherapy in view of the aggressive disease as the disease is expected to spread faster with poor prognosis. The said Oncology Surgeon further stated that the delay of treatment always have negative impact on outcome of treatment especially the particular patient is young, have aggressive disease and poor prognosive biologically marker.
In view of the above facts and circumstances, our considered opinion is that the opposite party doctor should have ordered the initial tests required in case of fibro adenoma was diagnosed on 10.1.2013 to the deceased 1st complainant or on her review on 27.1.2011 itself. The opposite party doctor failed to advise the patient to undergo such tests which are required at the earliest moment with a lame excuse that the patient is non-cooperative and afraid of the prescribed tests to undergo. The opposite party doctor had every right to refuse treatment to such patients and advise them to approach a specialist in that field for further evaluation after first review on 27.1.2011, but the opposite party doctor continued further treatment through medication to the 1st complainant till obtaining biopsy examination and further. As per medical science, the first noticeable symptom of breast cancer is typically a lump that feels different from other breast tissue with constant pain in that part, nipple changing position or shape or becoming inverted, skin puckering or dimpling, a rash on or around a nipple. In some cases what initially appears as a fibro adenoma could in fact be a phyllodes tumor, which are classified on the basis of their appearance under the microscopic as benign, borderline or malignant. The non-conduction of preliminary tests required to rule out whether the mass in right breast is cancerous one or not amounts to deficiency in service and negligence in treatment. Further, the 1st complainant died on 16.5.2013 after treatment at NIMS, Hyderabad at an early age leaving two minor children. Had the opposite party conducted the required tests or referred the deceased to an Oncologist on her first and second visit to the opposite party hospital, the deceased would have survived for some more years.
The opposite party relied on following judgment in Mrs. Indira Kartha and others Vs. Dr. Mathew Samuel Kalarickal and another: 2002(3) ALT 49 (NC) (CPA) in which it was held that “the realm of diagnosis and treatment there is ample scope for genuine different of opinion and one man clearly is not negligent merely because his conclusion differs from that of other professional men, nor because he has displayed less skill or knowledge than others would have shown. The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of it acting with ordinary care. The medical practitioner is not an insurer and so cannot be blamed every time if something goes wrong. Indeed, it is widely acknowledged that in medicine, in particular, things can go wrong in the treatment of a patient even with the very best available care.” However, the same is not applicable to the facts and circumstances of the present case as in the present case, the opposite party doctor never prescribed the required preliminary tests as evident from Ex.A1 O.P. card to the deceased complainant at the first instance i.e. on 10.1.2013, but prescribed excision biopsy on right breast after a gap of four valuable months.
With the above said discussion and under the facts and circumstances of the present case, we are of the considered opinion that the opposite party doctor is negligent for non-conduction of preliminary tests required in the circumstance to the deceased 1st complainant and for treating her in a negligent manner, which amounts to deficiency in service on the part of the opposite party doctor and the said doctor is liable to compensate for the same.
8. POINT No.3: In the result, the complaint is allowed, directing the opposite party to pay a sum of Rs.5,00,000/- towards compensation and Rs.1,00,000/- towards pain, suffering and mental agony to the complainants 2 to 5 to meet the ends of justice. We further direct the opposite party to pay Rs.5,000/- towards costs of this complaint. Time for compliance is two months from the date of this order.
Typed to my dictation, corrected and pronounced by us in open Forum, on this the 19th day of May, 2015.
Sd/- Sd/- Sd/-
MEMBER MEMBER PRESIDENT.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
FOR COMPLAINANTS: None. FOR OPPOSITE PARTY: None.
DOCUMENTS MARKED
FOR COMPLAINANTS:-
Ex.A1 Prescription given by the opposite party dt.10.1.2011.
Ex.A2 Report given by M/s. Sri C.T. Scan Center, Rajahmundry dt.27.1.2011.
Ex.A3 Report given by Neo Diagnostic Laboratories, Rajahmundry.
Ex.A4 Report given by M/s. NIMS Hospital, Hyderabad dt.6.7.2011.
Ex.A5 Report given by M/s. NIMS Hospital, Hyderabad dt.13.7.2011.
Ex.A6 Report given by M/s. NIMS Hospital, Hyderabad dt.19.7.2011.
Ex.A7 Discharge record given by NIMS Hospital, Hyderabad dt.27.7.2011.
Ex.A8 Discharge record given by NIMS Hospital, Hyderabad dt.11.8.2011.
Ex.A9 Histopathology report dt.9.8.2011 given by NIMS Hospital, Hyderabad.
Ex.A10 Discharge summary dt.24.8.2011 issued by NIMS Hospital, Hyderabad.
Ex.A11 Discharge summary dt.14.9.2011 issued by NIMS Hospital, Hyderabad.
Ex.A12 Discharge summary dt.5.10.2011 issued by NIMS Hospital, Hyderabad.
Ex.A13 Discharge summary dt.27.10.2011 issued by NIMS Hospital, Hyderabad.
Ex.A14 Discharge summary dt.18.11.2011 issued by NIMS Hospital, Hyderabad.
Ex.A15 Discharge summary dt.25.11.2011 issued by NIMS Hospital, Hyderabad.
Ex.A16 Discharge summary dt.2.12.2011 issued by NIMS Hospital, Hyderabad.
Ex.A17 Discharge summary dt.9.12.2011 issued by NIMS Hospital, Hyderabad.
Ex.A18 Discharge summary dt.16.12.2011 issued by NIMS Hospital, Hyderabad.
Ex.A19 Discharge summary dt.23.12.2011 issued by NIMS Hospital, Hyderabad.
Ex.A20 Discharge summary dt.30.12.2011 issued by NIMS Hospital, Hyderabad.
Ex.A21 Discharge summary dt.6.1.2012 issued by NIMS Hospital, Hyderabad.
Ex.A22 Discharge summary dt.13.1.2012 issued by NIMS Hospital, Hyderabad.
Ex.A23 Discharge summary dt.20.1.2012 issued by NIMS Hospital, Hyderabad.
Ex.A24 Discharge summary dt.27.1.2012 issued by NIMS Hospital, Hyderabad.
Ex.A25 Discharge summary dt.3.2.2012 issued by NIMS Hospital, Hyderabad.
FOR OPPOSTIE PARTY:-
Ex.B1 copy of case sheet dt.10.5.2011 issued by the opposite party.
Ex.B2 Case Summary (as recorded in the case sheet).
Sd/- Sd/- Sd/-
MEMBER MEMBER PRESIDENT.
