By: Sri. Mohandasan K., President
The complaint in short is as follows: -
1. The wife of the complainant Mrs. Jasla died while undergoing treatment from RCC, Trivandrum due to cancer ailment on 03/12/2017. The grievance of the complainant is that, if the ailment could have detected earlier, the effective treatment was able to provide. The investigation result provided by the third and fourth opposite parties were not correct and so the identification of ailment at an early stage was lost. Hence the prayer of the complainant is to get compensation from the opposite parties.
2. On 24/11/2016 the wife of the complainant was taken to the first opposite party hospital due to abdominal pain and the second opposite party examined the wife of the complainant and suggested for MRI scan. On watching MRI scan the second opposite party stated that there is tumor in the stomach and that is to be removed through surgery and so the wife of the complainant admitted in the hospital. On 25/11/2016 the second opposite party conducted surgery and after opening the stomach the complainant was called to the operation theater and said that the tumor grown outside the uterus which has been broken and spread over the area and so the removal of uterus is required and for that consent is to be given. The complainant issued consent and the surgery was completed. Thereafter the surgically removed parts was referred to the third opposite party by the second opposite party and the fourth opposite party issued the investigation result on 01/12/2016 to the second opposite party. The second opposite party informed that the result was normal and no malignances detected and accordingly the wife of the complainant discharged from the hospital.
3. Thereafter, the wife of the complainant continued treatment before the second opposite party up to 07/03/2017, but there was no relief to the ailment and the pain was aggravated. The second opposite party referred the patient to Dr. Muhammed Shihabudheen and Mr. Dr. Shihabudheen advised the patient to admit at Kottakkal Almas hospital and various medical examinations were undergone at the hospital. The patient was also consulted by chest specialist Dr. Irshad from the Almas hospital. Thereafter Dr. Shihabudheen instructed the patient to consult at RCC Trivandrum and was admitted there on 27/10/2017 and the patient undergone surgery on 28/10/2017. The patient was discharged on 03/11/2017 and was availed room nearby RCC,Trivandrum for a temporary stay. It was learned from the RCC that the cancer ailment was in an aggravated stage at the time of examining at RCC. The doctors examined from the RCC said to the complainant that the patient was suffering from cancer ailment while she was admitted before the first opposite party hospital itself. It was also stated that if the ailment was duly detected the treatment could have been availed to the patient in an early stage.
4. The doctors of the RCC instructed to re-examine the slide and block which was issued by second opposite party through the surgery and accordingly the second opposite party issued letter to third opposite party and the materials were taken to the RCC and on examination from the RCC it was found there was evidence of cancer ailment on examination of slide and block obtained from third opposite party. Meanwhile the treatment was becoming ineffective to the patient and the patient was referred to the Calicut Medical college from RCC on 23/11/2017 but due to pathetic condition of the patient though the admission was booked at medical college hospital Calicut to 04/12/2017, the patient died on 03/12/2017. The allegation of the complainant is that the opposite parties did not conduct proper lab test and that is the reason for reporting no cancer or other complication to the patient at the surgery from the first opposite party hospital. The submission of the complainant is that if the ailment was detected in advance, he could have provided proper and effective treatment to his wife and thereby he could have saved the life of his wife. The complainant alleges latches in treatment on the side of opposite party resulted mental agony and financial loss to the complainant. The specific allegation is that the lab test of the surgically removed parts from the stomach of the patient was examined by the 4th opposite party and no cancer ailment was detected, thereafter the same specimen was examined by the RCC hospital and found that the patient was suffering from cancer shows that there was deficiency in service on the part of fourth opposite party. Though the loss of wife of complainant cannot quantified, the complainant prays for compensation of Rs.10,00,000/- on account of defective service on the part of the opposite parties. The complainant also prays for cost of Rs.50,000/- along with interest at the rate of 12% per annum.
5. On admission of the complaint notice was issued to the opposite parties and the opposite parties filed version denying the entire averments and allegations in the complaint. All of the opposite parties contended that the complaint is not maintainable either in law or on facts. It is frivolous, vexatious and devoid of any merit or bonofidies. There is no negligence or deficiency in service on the part of opposite parties as alleged by the complainant. It is denied that the death of wife of the complainant occurred due to the treatment given by the opposite parties.
6. The first and second opposite parties submitted that the wife of the complainant had consulted at the first opposite party hospital. The patient came to consult second opposite party as per reference of Dr. Abdul Majeed for surgical consultation. The ultra sound scan report showed right ovarian cyst with ascites and the second opposite party explained the diagnosed disease condition and the surgical management to the patient and her husband and she got admitted for laparotomy. After necessary pre-operative check-up and pre- anesthetic evaluation the patient was found fit for surgery and written informed consent was obtained from the complainant. Under all aseptic care and precautions the second opposite party conducted laparotomy on 25/11/2016 under spinal anesthesia. Intra operatively right ovary was found replaced with a huge tumor of size 15 x 20 cm (1kg) which had ruptured and blood-stained fluid present in the peritoneal cavity. Uterus was normal size the left ovary showed a cyst of 3x 4cm size. In view of the anatomical presentation of ovary and uterus, total hysterectomy with left salpinges ovariotomy and right ovariotomy was required and for high suspicion of chance for malignancy the patient might have required re-surgery later if tumor alone was removed. This condition and the need for further procedure was well explained to the complainant and with his written informed consent surgery was proceeded with total abdominal hysterectomy with left salpinges ovariotomy with right ovariotomy and surgery was uneventfully completed. The surgical specimen was sent for histopathology examination and ascetic fluid for cytology to rule out malignancy.
7. The postoperative period was uneventful and the histopathology report received on 01/12/2016 showed that the said lesion as suggestive of myxoma and cytology report of acetic fluid also did not reveal malignant cells and the patient was discharged on the 6th post-operative day with an advice or review after one month. Before discharge of the patient the second opposite party himself contacted the pathologist Dr. M.C Joseph and enquired about the details regarding the findings and he explained it as a rare type of venign ovarian tumor which is associated with ascetic without any malignant potential. The second opposite party as a surgeon had exercised due care and caution in the surgical management of the patient and sent the specimen for pathology and the report did not reveal any evidence of malignancy to refer the patient for oncology consultation. Hence the patient was discharged with an advice for review after one month. When the patient came up for review, she had complaint of abdominal discomfort and hence she was referred to the gastroenterologist for further evaluation and management. The second opposite party had followed standard and medically accepted treatment procedure and diagnosed the disease condition on the basis of pathological report as per accepted protocol. The second opposite party sent the specimen for histopathology and ascetic fluid for cytology to rule out malignancy as per accepted clinical practice and even if there is none detection of malignancy as per pathology report the first and second opposite party cannot be held liable for the same. The first and second opposite parties are unnecessarily impleaded as party to the proceedings without any justifiable reason. The first opposite party submit that there was absolutely no negligence or deficiency in service on the part of first and second opposite parties and not liable to compensate the complainant.
8. The first opposite party submitted that the second opposite party directed the patient to take MRI scan and decided for surgical removal of tumor is not correct and so denied. The patient had earlier consultation with doctor Abdul Majeed attached to the first opposite party hospital and referred to the second opposite party for surgery on the basis of the diagnosis of right ovarian cyst with ascites as per USG report. The first opposite party denied the averment regarding treatment of the patient at RCC Thiruvananthapuram, the diagnosis and modality of treatment are not pertaining to the knowledge of the first and second opposite party and so denied. It is further submitted that the first and second opposite parties are not aware of the stage of cancer affected to the patient and nature of tumor removed by surgery cannot be ascertained on clinical examination and surgeon can only sent the specimen for histopathology to rule out malignancy if there is suspicion on clinical side. The non-detection of malignancy as per histopathology and cytology cannot be attributed as deficiency in service on the part of the first and second opposite party. The second opposite party had given treatment advices during post-operative review based on the diagnosis made in the pathological report and the first and second opposite party have no liability to compensate the alleged mental agony of the complainant. The allegation that complainant was put to mental agony and financial loss on account of disease condition of the patient is unfounded and hence denied. The opposite party submitted that the death of the patient was not caused any act or omission on the part of the first and second opposite party and so complainant is not entitled to get any compensation from the opposite party. The amount of compensation claimed as per the complaint is highly exaggerated and exorbitant and not entitled by the complainant. The complaint is filed against first and second opposite party so only on an experimental basis without any bonofides. Hence the prayer is to dismiss the complaint with cost of the first opposite party.
9. The third and fourth opposite parties specifically denied the allegations that the disease of the complainant’s wife could not properly diagnosed since a true result was not obtained in the medical examination conducted at the institution of opposite party No.3 and 4 and due to the deficiency of service rendered by them etc. It is submitted that a test report dated 01/12/2016 was issued by the fourth opposite party. The opposite parties denied the allegation that the cancer had been detected as per the first test report, proper treatment could have been given and thereby the life of the wife of complainant could have been saved are denied. The complainant is not entitled for Rs.10,00,000/- or any other sum by way of compensation.
10. The opposite parties do not admit that the wife of the complainant died due to cancer. It is also denied that the non-detection of cancer in the lab tests conducted by the opposite parties in any way culminated in the death of the patient / wife of the complainant. The opposite parties submitted that there is absolutely no deficiency of service on their part and also have no role in the treatment of the patient. The opposite party submitted that they are not responsible for the diagnosis, prognosis and various procedures adopted and treatment given by other opposite parties. It is admitted that the fourth opposite party had issued a report of cytological examination dated 01/12/2016. No malignance cells were seen in the sample which was received for examination. The presence or absence of malignance cells in a given sample depends on the area from which the sample is aspirated. It is submitted that a surgery was performed on the patient on 25/11/2016 and that at that time the ovarian tumor was found ruptured. Having found the tumor had grown and ruptured the cytology report alone cannot be made the basis for ruling out malignancy. It is submitted that in such situation the said report ought to have been reviewed immediately before jumping in to a conclusion. The submission is that though the lab report is negative, clinical findings points at the presence of malignancy. The lab report had stated that ovarian myxoma was found in the examination. Though myxoma is a tumor there is chance in some cases for the tumor to become cancerous. This is not seen to have been adverted to during the prolonged treatment. The opposite parties have not given a report stating that the patient has no cancer, as alleged by the complainant. The pathology report given by opposite party No.4 was not considered after the patient was discharged on 01/12/2016. It is submitted that though the patient was under prolonged treatment it is not seen that a repeated biopsy was taken and pathological examination done. It has been done the growth of malignance cells if any could have been detected and timely treatment afforded. Even if after the surgery the patient was complaining of pain clinical investigation should have been done to ascertain the cause. Clinic pathological co-relation and obtaining a second opinion is essential for a proper diagnosis. The opposite party submitted that they are not able to make any comment on the statement that the slide and block examined by the fourth opposite party which has been taken to RCC and reviewed there unless the same slide be made available for the opposite parties for further examination. The opposite party dispute whether the same slide was examined by fourth opposite party was reviewed at RCC. Hence the submission is that it is absolutely necessary that the complainants who collected the slide and block from the opposite parties be produced the same before the commission then only the opposite parties could be examined the slide. It is further submitted that the documents produced along with complaint alleged to be review report from RCC have to be carefully studied by the opposite parties for which they have applied for issue of certified copies of the same.
11. The opposite party submitted that they have not examined a sample taken from the stomach of the patient but biopsy taken from ovary was examined. It is submitted that after issuing the cytology report on 01/12/2016 the patient was admitted to RCC for treatment only on 28/10/2017. During this long interval of 11 months cancer could have developed in the stomach of the patient. The management and treatment given to the patient during this period is crucial in this case. The opposite party submit why the patient was not referred to RCC for treatment till 28/10/2017 is mysterious. The submission of opposite parties is that considering the history of patient and persisting complaint of pain in the abdomen it is incumbent upon those who treat the patient to clinically examine and arrive at a proper diagnosis. It is submitted that in this case it is clinically seen that the patient had a ruptured ovarian tumor which could be suspected to be cancerous and when the lab report is inconsistent with the suspicion it is essential that the report should be reviewed.
12. The opposite parties reiterate that they had properly, diligently examined the samples given to the lab and proper and true reports were given. It is further submitted that it is likely that 5 to 10 percent of the reports may go wrong. It will be ruled out only by review and repeat tests. A doctor who examines a patient at the OP is likely to make wrong diagnosis in 10 to 20 percent of the cases that is while when the patient is not relived of the ailment after a course of treatment, the physician administers a different course. In such cases a proper diagnosis is possible by co relating pathological finding and also the results of radiological test were ever necessary. A pathological lab report alone is not the sole basis for diagnosis but it is only one of the aids among many for the diagnosis clinically.
13. The Submission of the opposite parties are that they have given proper service to the complainant, there is no deficiency what so ever in their service and the complainant has falsely made these opposite parties to the complaint knowing well that there is no deficiency of service on the side of opposite parties. The complainant is not entitled to get any compensation as stated in the complaint and the opposite parties are not liable to pay any compensation to the complainant. Hence the prayer is to dismiss the complaint.
14. The complainant and opposite parties filed affidavits and documents. The documents on the side of complainant marked as Ext. A1 to A 32 and also MO1. No documents marked on the side of opposite parties. Complainant examined as PW1. Complainant and opposite parties also filed notes of argument. Ext. A1 is discharge summary dated 24/11/2016 issued from MB hospital Malappuram, Ext. A2 is copy of cytology report, Medivision scan center Perinthalmanna dated 01/12/2016, Ext. A3 is Pathology report issued by Medivision Centre Perinthalmanna. Ext. A4 is OP record, MB hospital, Malappuram dated 15/12/2016, Ext. A5 is OP record MB hospital, Malappuram dated 14/01/2017, Ext. A6 is copy of prescription by Dr. K.P.Binnu, MB hospital, Malappuram dated 19/01/2017. Ext. A7 is OP record, MB hospital Malappuram 02/03/2017. Ext. A8 is OP record, MB hospital Malappuram, dated 30/03/2017, Ext. A9 is scan report, Almas hospital, Kottakkal dated 01/04/2017, Ext.A10 is OP record MB Hospital, Malappuram dated 13/04/2017, Ext. A11 Gastroscopy report, Almas hospital, Kottakkal dated 26/07/2017, Ext. A12 is OP card, Almas hospital, Kottakkal 01/08/2017. Ext. A13 lab test result, dated 09/08/2017, Ext. A14 scan report, Almas hospital, Kottakkal 14/08/2017. Ext. A15 OP card, Almas hospital, Kottakal, dated 20/08/2017. Ext. A16 OP record, MB hospital, Malappuram dated 21/09/2017, Ext. A17 is OP record, MB hospital, Malappuram 05/10/2017. Ext. A18 is OP record, MB hospital, Malappuram 12/10/2017. Ext. A19 is lab test result, dated 13/10/2017. Ext A20 is prescription of Dr. Shihab, Almas hospital, Kotaakal 14/10/2017, Ext 21 Gastroscopy report, Almas hospital, Kottakkal 24/10/2017, Ext 22 is scan report, Almas Kottakkal 20/10/2017, Ext A23 laboratory test result, RCC, Thiruvananthapuram dated 23/10/2017, Ex.t A24 laboratory test result, RCC Thiruvananthapuram, dated 24/10/2017. Ext A25 surgical pathology slide review report, RCC Thiruvananthapuram dated 26/10/2017, Ext. A26 discharge summary, RCC, Thiruvananthapuram 03/11/2017. Ext. A27 surgical pathology report, dated 06/11/2017. Ext. 28 surgical pathology slide review report, RCC, Thiruvananthapuram dated 21/11/2017. Ext.29 Request for consultation by RCC to Kozhikode medical collage dated 23/11/2017. Ext. 30 Medical laboratory report, dated 02/12/2017. Ext. A31 is Death certificate issued by Malappuram Municipality dated 12/12/2017. Ext. A32 is treatment history produced by the Regional Cancer Centre, Trivandrum, altogether 113 pages. MO1 is the slide and block.
15. Heard complainant and opposite parties, perused affidavits and documents. The following points arise for consideration: -
1) Whether the complainant is a consumer of opposite party No.3 and 4?
2) Whether the complaint is defective due to non-joinder of necessary parties?
3) Whether there is deficiency in service on the part of the opposite parties?
4) What is the cause of death of deceased Jasla?
5) Relief and cost?
16. Points 1 and 2
The third and fourth opposite parties filed version contenting that the complainant is not a consumer of the third and fourth opposite parties and the wife of complainant undergone prolonged treatment after Ext.A3 report and so the concerned doctor and the institutions are to be parties in the proceedings. So, the complaint is defective due to non-joinder of necessary parties. It is right that the specimen of the deceased Jasla was referred by second opposite party to the third opposite party institution and it was examined by fourth opposite party and issued Ext. A3 report to the second opposite party. Ext. A2 and A3 shows that the client’s name as MB hospital, Varanagode, the first opposite party, the person who referred the specimen and not the complainant. So, it is the contention of the third and fourth opposite party that the first opposite party is the beneficiary of service of the third and fourth opposite parties and not the complainant. But it can be seen that the specimen was actually belongs to the wife of the complainant and she was treated at the first opposite party hospital on payment of due consideration. The first opposite party as well as the third and fourth opposite parties have no case that the service rendered by them was of free nature. So as per the definition of the” Consumer” under the Act, the beneficiary of service other than the person who hires or avails of service for consideration also a consumer. So, there is no merit in the contention that the complainant is not consumer under the opposite party.
17. The specific case of the complainant is that due to defective service on the side of the third and fourth opposite parties the cancerous decease was not detected at the first instance as per Ext. A2 & 3 documents. The treatment of proper nature was denied to the deceased wife of the complainant which caused the death of his wife and so the complainant pray for compensation from the opposite parties. The complainant submitted that deceased Mrs. Jasla was undergoing treatment after issuance of Ext. A2 &3 documents not only under the opposite parties but also before some other doctors and hospital. But the allegation is against third and fourth opposite parties for non-detection of cancerous ailment. The complainant has no case of deficiency in medical treatment given by the doctors or the hospital except opposite parties 1 to 4. The case is based on Ext. A2 and A3 reports and so we do not find any merit in the contention that the other doctors or institutions are not parties to the complaint where in the complainant was undergone treatment during the period.
18. Point NO.3
The case of complainant is that his wife Mrs. Jasla was taken to the first opposite party hospital with the complaint of pain abdomen and on instruction of second opposite party an MRI scan of the abdomen was taken and she was advised to undergo a surgery to remove cyst in the left ovary and during the surgery it was found the cyst is burst and spread inside the ovary and to avoid complication in future along with cyst the uterus and the ovary was surgically removed. The surgically removed specimen of cyst was sent for test in to third opposite party intuition and the test result prepared by the fourth opposite party given to the second opposite party. On perusal of the report the second opposite party in formed that the wife of the complainant does not have any serious ailments and so she was discharged. The report issued by the third and fourth opposite parties are marked as Ext. A2 and A3. Ext A2 is cytology report issued by fourth opposite party and the content is as follows: -
Cytology report
C-No 1890/16
Clinical diagnosis: To rule out malignancy
Nature of specimen: Ascitic fluid
Micro: The deposit smears of the fluid show several blood cells, a few lymphocytes,
some neutrophils, macrophages and mesothelial cells.
DIAGNOSIS: No malignance cell seen
*** END OF THE REPORT **
NOTE: The tests marked with * are not accredited by NABL.
Results Released on 01/12/2016/09:35 SUMA. KT
The Ext. A3 is histopathology report. The content is as follows: -
PATHOLOGY REPORT
BIOPSY: NO:4252/2016
Clinical Diagnosis: To rule out Malignancy
Specimen: I. Total hysterectomy with left salpingo - oophorectomy
II. Right ovariotomy
Gross: I. total hysterectomy specimen with one tube and ovary. Uterus measuring
12x6x5cm. Cut section normal endometrium and myometrium. Cervix
appears normal. Ovary shows a serious cyst 1cm. Tube appears normal.
II. A cystic mass associated with fallopian tube measuring 18x17x7cm. Cut
section mucinous translucent material. Tube appears normal.
Micro: I. Sections from uterus show endometrium with tubular glance lined
by a single layer of columnar epithelium, having no secretory changes.
Some of the glands are elongated and tortuous. The stroma is compact
and densely cellular with fibro vascular elements.
Section from cervix show benign squamous epithelium in the
ectocervical region with spongiosis and there is heavy infiltrates of
lymphocytes, plasma cells and neutrophils in the subepithelial
stroma. Endocervical glands look benign in morphology with focal areas
of squamous metaplasia and stromal infiltrates of chronic inflammatory
cells and cysti dilatation of some glands. Ovary contains a follicular cyst,
fallopian tube appears normal
II: Sections show an ovarian tissue with a neoplasm composed of several
spindle cells underlying myxomarous degeneration and in areas hyaline de
generation.
PATH: DIAGNOSIS: I. UTERUS WITH PROLIFERATIVE ENDOMETRIUM AND CHRONIC
SERVICITS.
II. SUGGESTIVE OF OVARIAN MYXOMA.
*** END OF THE REPORT**
Note: The tests marked with * are not accredited by NABM
Results released on 07/12/2016/11:07, SUMA K.T
19. The second opposite party discharged Mrs. Jasla on 01/12/2016 after perusing Ext. A2. Thereafter she was consulted before the second opposite party on 15/12/2016 thereafter 14/01/2017, 19/01/2017 and on 02/03/2017. Ext. A4, A5, A6, A7 shows the patient was consulted by second opposite party. Thereafter patient was referred by second opposite party to Doctor Muhammed Shihab who is gastrologist working under the first opposite party and also appears that he is practicing at Almas hospital, Kottakkal. Deceased Jasla was consulted with the Dr. Muhammed Shihab from first opposite party hospital as well as from Almas hospital Kottakal. Ext. A8, A9, A10, A12, A15, A16, A17, A18, A20 shows that Mrs. Jasla regularly consulted by Dr. Mohamed Shihab. The patient was undergone various medical examinations including scanning, Gastroscopy etc. Only on 20/10/2017 as per CT scan taken from Almas hospital on reference by Dr. Mohamed Shihab, it was detected metastasis with lymphangitic carcinomatosis. Ext. A22, CT scan abdomen dated 20/10/2017 the impression is as follows: -
IMPRESSION
- circumferential mural thickening in the pylorus of stomach extending in to 1st part of duodenum resulting in luminal narrowing with no obvious extension beyond the serosa…… Neoplastic etiology.
- . Few sub centimetric peri gastric lymph nodes.
- . Homogenously enhancing nodule with irregular margins in the posterior segment of upper lobe of right lung. Irregular inter nobler septal thickening in the apical anterior & posterior segments of upper lobe of right lung. ….. Metastasis with lymphangitic carcinomatosis.
20. On the basis of Ext. A22 report the patient was referred to RCC, Thiruvananthapuram. There after the deceased Mrs. Jasla treated at RCC Trivandrum. She was admitted at RCC on 27/10/2017 and undergone surgery on 28/10/2017. Ext. A23, A24, A25 shows the various examination results undergone before RCC. Ext. A26 is discharge summary and Ext. A27 is pathology report issued from RCC Trivandrum. Ext. A27 is surgical pathology report which is as follows: -
Excision
SITE OF BIOPSY
Stomach
GROSS DESCRIPTION
- Main Specimen B) Station 9
DIAGONOSIS
*Distal radical gastrectomy specimen.
-Poorly differentiated adenocarcinoma with signet ring cells.
-There is intra neural infiltration.No lymph vascular emboli identified.
-Neoplasm is infiltrating full thickness of muscular is propria.
- Resected end margins are free of neoplasm
-Lymph nodes 3 nodes, all showing metastasis. There is extra capsular
spread.
-Section from omentum shows no significant pathology
-Station 9-10 Lymph nodes, all showing metastasis
Ext. A28 is copy of surgical pathology slide review report issued from Regional Cancer Centre, Thiruvananthapuram. Surgical Pathology slide review report reveals as follows:
Parameters Result
TYPE OF BIOPSY TAH +BSO
NATURE OF MATERIALS RECEIVED Slides and blocks for review
GROSS DESCRIPTION 6H &E slide and 6 blocks labelled 4252/16.
MICROSCOPIC DESCRIPTION. Sections from the ovary shows infiltration
by a neoplasm composed of cells with signed ring cell morphology singly and in groups. Special stains show intracytoplasmic mucin in the neoplastic cells. Sections from cervix and endometrium shows no significant pathology.
DIAGNOSIS Suggestive of metastatic adenocarcinoma ovary. Please look for a primary in stomach.
21. Ext. A29 is a letter issued from RCC, Thiruvananthapuram to the oncology
Department, Kozhikode Medical college hospital, which reveals the patient was
planned for palliative chemo. Ext. A31 document shows the death of the Mrs.
Jasla on 03/12/2017.
22. The specific allegation of the complainant in this complaint is that the opposite party No.4 who is working under opposite party No.3 failed in diagnosing presence of cancer ailment on examining surgically removed specimen of cyst and thereby the complainant could not provide proper treatment to his wife. The allegation is that while the opposite parties conducted surgery and thereafter cytological and pathological examinations the deceased Jasla was suffering from cancer ailment. The complainant produced Ext. A28 to show that the patient was suffering from cancer ailment while the slide of the specimen was examined by the 4th opposite party. The allegation of the complainant is that the fourth opposite party examined the specimen and prepared Ext. A2 and A3 and the same specimen was taken for review before the Regional Cancer Centre, Thiruvananthapuram and it was diagnosed metastatic adenocarcinoma ovary. The diagnosis of as per Ext. A28 is that “suggestive of metastatic adenocarcinoma ovary. Please look for a primary in stomach”. It is also evident from the Ext. A28 that the subject matter availed before RCC for review described as “6 H & E slides and 6 blocks labeled 4252/16”. So from the perusal of Ext. A2, A3 & A28 reveals the subject matter for examination was same one and the finding was but different. Ext. A2 diagnosed that no malignant cells seen. It is definite from Ext. A2 that the specimen was refereed for clinical diagnose to rule out malignancy. But it is diagnosed as no malignancy cells seen. On receipt of the result from fourth opposite party the second opposite party contended that she made personal call and discussed about the result but the fourth opposite party clarified that no malignancy was noted by him. Naturally the second opposite party discharged the patient advising review. But later patient continued treatment before the second opposite party and also before Doctor Mohamed Shihab. After 11 months, the patient was referred to RCC by doctor Mohamed Shihab on finding metastasis with lymphangitic carcinomatosis. The patient was undergone treatment at RCC, Trivandrum and from there the slides and specimens was further reviewed and prepared Ext. A28. It is categorically established that there was metastatic adenocarcinoma ovary. So, the fact reveals that the complainant was suffering from cancerous ailment during the first surgery itself but the fourth opposite party failed to find out the same while preparing Ext. A2& A3 documents. It can be concluded that the allegation of the complainant that his wife was suffering cancerous ailment when she was undergoing treatment before the second opposite party.
23. The opposite parties contended that the case of the complainant has not duly proved and no expert is examined to prove the same. The fourth opposite party submitted that he is much experienced and was duly, diligently examined the specimen. Ext. A28 shows the details of the specimen received for the review at RCC Trivandrum. Which is described as 6H &E slides and 6 blocks labeled 4252/16, which is none other than biopsy No.4252/16 mentioned in Ext. A3. The third and fourth opposite party contended that there is no accepted norm that a report from the RCC is superior in quality than any other, which is to be put to strict proof but has not done. The third and fourth opposite parties also contended in the version that it is absolutely necessary that the petitioner who collected the slide and block from the respondents to is liable to produce the same before the Commission. So that the same could be examined by the opposite parties. It was also had submitted the documents produced by the complainant alleged to be review report from RCC have to be carefully studied by the opposite parties and for that they had applied certified copies of the same. But it can be seen that the treatment records as well as slides presented for review before RCC was duly summoned by the Commission and the same was submitted before the commission by the RCC. The opposite party was given all the documents produced by the complainant. It can be seen that from the affidavit and documents the complainant has proved Ext. A3 and Ext. A28 are born out from same specimen. If the opposite party had dispute on the veracity of Ext. A28 there was no hurdle before the opposite party to examine the same through any other expert authority. The RCC is not a party in this complaint and they produced documents as directed by the commission. So, the question of examination of an expert does not arise from the side of complainant as usual in medical negligence case. The nature of the complaint is that the complainant was prevented from providing proper treatment in advance on realizing the correct ailment in due time. The cause for this situation was the defective service on the part of fourth opposite party that he could not detect the cancerous ailment which was really there at that time of his examination. The opposite party has not produced any authority to establish the contention that the identification of malignancy depends upon the competency of the person who is conducting examination. It is very clear that the definite intention of examination of specimen by the fourth opposite party was to rule out malignancy. The nature of specimen brought before the opposite party is very important. Ext. A2 &A3 reveals the same. The fourth opposite party was not prevented from conducting thorough examination of the specimen. So, we do not find merit in the contention that the presence or absence of malignant cells in a given sample depends on the area from which the sample is aspirated. The case of complainant is that the specimen examined by the fourth opposite party was with cancerous cells and not as contented by the opposite party. The grievance of the complainant is that the opposite party failed to report the presence of cancer through the reports Ext A2 &A3, which is subsequently revealed by Ext A28 report. The third and fourth opposite parties contended that the cytology report, Ext. A2 was issued on 01/12/2016 but patient was admitted to RCC for treatment only on 28/10/2017. During this long interval of 11 months cancer could have developed in the stomach of the patient. The management and treatment given to the patient during this period is crucial in this case. It appears the fourth opposite party as wondered that why the patient was not referred to RCC for treatment till 28/10/2017 is mysterious. The third and fourth opposite party also contended in the version that considering the history of the patient and the persistent complaint of pain in the abdomen, it is incumbent upon those who treated the patient to clinically examine and arrive at a proper diagnosis. It was also submitted that the patient had a ruptured ovarian tumor which could be suspected to be cancerous when the lab report is in consistent with the suspicion, it is essential that the report should be reviewed. It is further submitted that the third and fourth opposite parties had properly and diligently examined the samples given to the lab and proper and true reports were given but it is likely that 5 to 10% of the reports may go wrong. A doctor who examined a patient to the OP, is likely to make wrong diagnosis in 10 to 20% of the cases. Hence the submission is that a pathological lab report alone is not the sole basis for diagnosis but it is only one of the aids among many for the diagnosis clinically. The Commission do not find merit in the contention of the opposite party, but the opposite parties are further endorsing the grievance of the complainant. It appears from the treatment record that from 24/11/2016 to 20/10/2017 till taking the CT scan from Al mas hospital, the patient was approached the opposite parties more than 18 occasions. It is also reveals that the patient was amenable for any sort of medical examination and lab investigation. If at all any laches of medical examination is there, which cannot be found fault with the patient but with opposite parties.
24. Point No.4
It can be seen that from 24/11/2016 the complainant was under medical treatment till her death on 03/12/2017. Ext. A28 shows that she was suffering cancer ailment from the date of surgery i.e., 25/11/2016. The first admission of the patient was due to abdominal pain and on the day next itself she was under gone surgical procedure. Thereafter she was under the treatment of second opposite party up to march 2017 and thereafter she was under treatment of Dr. Muhammed Shihab till the patient referring to RCC Trivandrum. It can be seen that Dr. Muhamad Shihab was a doctor working under first opposite party as well as working at Almas hospital Kottakkal. The letter issued form the RCC to the medical college Calicut i.e. Ext. A29 shows that the patient was planned for palliative Chemo. Ext. A29 also reveals that the patient received at RCC with meta static carcinoma stomach and gastric outlet obstruction and it has also stated that metastasis to bones and lung. Though the patient was contacted medical college hospital Calicut for admission and fixed the date of admission on 04/12/2017. But the patient died on 03/12/2017 itself. So, the documents produced by the complainant shows that death was caused due to cancer ailment. But the question is that whether the death could have been avoided by early detection of decease. There is no definite and acceptable evidence before the Commission. The complainant has a contention that the ailment had detected earlier that the life of the patient could have save. But we are not inclined to accept the contention of the complainant that the life of the patient could have saved on earlier detection of disease alone. But it is right that complainant was able to provide maximum extend of treatment which the medical science prescribes. So the view of the commission is that the death of the patient was due to cancer ailment and non-detection of cancer ailment in due time prevented the complainant from providing proper treatment and thus the death of the patient accelerated.
25. The third and fourth opposite parties cited decisions which discuss various evidentiary aspects of medical negligence cases. The third opposite party cited decision of Hon’ble Apex Court in Chanda Rani Akhouri Vs M.S Methusethupathi.
The decision also covered the case of Jacob Mathew Vs State of Punjab. The decision distinguished the professional negligence and the occupational negligence. The simple lack of care or an error of judgment or an accident is not proof of negligence. The Chanda Rani Akhouri Vs M.S Methusethupathi is a case based on post-operative medical negligence. But the case in hand is not a post-operative case or simple lack of care or an error of judgment. The specific allegation is that the specimen referred for report of malignancy and the malignancy was not detected. But the malignancy was duly detected subsequently from the same specimen. The specimen was duly summoned to the commission but the opposite party did not take any steps to disprove the contention of the complainant. So, the nature of deficiency or defective service from the side of opposite party cannot be treated as simple lack of care or an error of judgment. The case of Kusum Sharma and others VS Batra hospital and medical research also discussed the issue of medical negligence. In this case the issue is a clinical examination with definite purpose. The case in hand involves the issue of a clinical examination with definite purpose. Conducting clinical examination and medical treatment as well as surgical procedures cannot be equated. Ext A28 is the specimen involved in this complaint which is duly obtained from a specialty hospital of cancer and if the finding of the same is not correct, the opposite parties were not prevented from challenging the credibility through the proper way of medical science. So we do not find the contention of the opposite parties that there is lack of expert opinion, but we find that Ext. A28 is an expert opinion in the matter.
27. Point No.5
It can be seen that the wife of the complainant was only aged 31 year, which means the death was happened at a prime youth age. The complainant had given proper attention and care while she was under treatment. The early sad demise of his partner caused much mental agony and anguish to him. If the fourth opposite party had taken due care and attention in conducting examination of the specimen, the complainant could have spared much more time with his lovely partner. The Commission realize that no quantum of money can cop up the loss and anguish suffered by the complainant. Complainant has claimed 10,00,000/- rupees as compensation on account of the defective service on the part of the opposite parties. From the entire evidence available before the Commission, we find negligence in service on the part of fourth opposite party who prepared Exts.A2 & A3 documents without do care and attention. Hence, we find from the complaint, the version, affidavit, documents and from argument notes, that the fourth opposite party who is working under third opposite party was negligent in preparing the Exits A2 & A3 documents and liable to compensate the complainant. We also find that the claim amount is not supported by any reasoning. But it can be seen that the complainant might have spent some money towards wrong treatment of his wife. So, what can be done is to consider a lump sum amount as compensation in favor of complainant on account of mental agony, hardship and anguish suffered by the complainant due to the sad demise of his wife at an early age. We consider Rs.5,00,000/- as reasonable amount of compensation in the matter. The third and fourth opposite parties are liable to pay compensation of Rs.5,00,000/- to the complainant. We also allow Rs.20,000/- as cost of the proceedings. Hence, we allow this complaint as follows: -
- The opposite parties three and four are directed to pay Rs.5,00,000/- to the complainant on account of defective service and thereby caused mental agony, hardships, anguish and inconveniences to the complainant.
- The opposite parties 3 and 4 are directed to pay Rs.20,000/- as cost of the proceedings to the complainant.
The opposite parties 3 and 4 are directed to comply this order within one month from the date of receipt of copy of this order, failing which the entire above amount shall carry interest at the rate 12% per annum from the date of order till payment.
Dated this 30th day of November, 2022.
Mohandasan K., President
PreethiSivaraman C., Member
Mohamed Ismayil C.V., Member
APPENDIX
Witness examined on the side of the complainant: PW1
PW1: Noushad (Complainant)
Documents marked on the side of the complainant: Ext.A1to A32
Ext.A1: Discharge summary dated 24/11/2016 issued from MB hospital Malappuram,
Ext.A2: Copy of cytology report Medivision scan center Perinthalmanna dated
01/12/2016,
Ext A3: Pathology report issued by Medivision Centre Perinthalmanna.
Ext A4: OP record, MB hospital Malappuram dated 15/12/2016
Ext A5: OP record MB hospital Malappuram dated 14/01/2017.
Ext.A6: copy of prescription by Dr. K.P.Binnu, MB hospital Malappuram 19/01/2017.
Ext.A7: OP record, MB hospital Malappuram 02/03/2017.
Ext A8: OP record, MB hospital Malappuram 30/03/2017.
Ext A9: scan report Almas hospital Kottakkal dated 01/04/2017.
Ext A10: OP record MB Hospital Malappuram 13/04/2017.
Ext.A11: Gastroscopy report, Almas hospital Kottakkal dated 26/07/2017.
Ext.A12: OP card, Almas hospital Kottakkal 01/08/2017.
Ext A13: Lab test result dated 09/08/2017.
Ext A14: Scan report, Almas hospital Kottakkal 14/08/2017.
Ext A15: OP card, Almas hospital Kottakal dated 20/08/2017.
Ext.A16: OP record, MB hospital Malappuram dated 21/09/2017.
Ext.A17: OP record, MB hospital Malappuram 05/10/2017.
Ext A18: OP record, MB hospital Malappuram 12/10/2017.
Ext A19: Lab test result dated 13/10/2017.
Ext A20: prescription Dr. Shihab Almas hospital Kotaakal 14/10/2017.
Ext.A21: Gastroscopy report Almas hospital Kottakkal 24/10/2017.
Ext.A22: scan report, Almas Kottakkal 20/10/2017.
Ext A23: Laboratory test result, RCC Thiruvananthapuram dated 23/10/2017.
Ext A24: Laboratory test result, RCC Thiruvananthapuram dated 24/10/2017.
Ext A25: surgical pathology slide review report, RCC Thiruvananthapuram dated
26/10/2017.
Ext.A26: Discharge summary, RCC Thiruvananthapuram 03/11/2017.
Ext.A27: Surgical pathology report, dated 06/11/2017.
Ext A28: Surgical pathology slide review report RCC Thiruvananthapuram dated
21/11/2017.
Ext A29: Request for consultation By RCC to Kozhikode medical collage dated
23/11/2017.
Ext A30: Medical laboratory report, dated 02/12/2017.
Ext. A31: Death certificate issued by Malappuram Municipality dated 12/12/2017.
Ext.A32: Treatment history produced by the Regional Cancer Centre, Trivandrum,
altogether 113 pages.
Witness examined on the side of the opposite party: Nil
Documents marked on the side of the opposite party: Ext. Nil
Mo1: Slide and block.
Mohandasan K., President
PreethiSivaraman C., Member
Mohamed Ismayil C.V., Member
VP
