SMT. RAVI SUSHA: PRESIDENT

Complainant has filed this complaint U/s 12 of Consumer Protection Act 1986, for getting an order directing opposite parties to pay Rs. 10,00,000/- towards compensation alleging medical negligence on the part of opposite party No.2 in diagnosing the pathology result of the complainant. 

            Brief facts of complainant’s case are that the complainant is a four years old child. A small swelling developed behind the left ear of the child.  So she was taken to Lourde Hospital, Taliparmba and consulted with Dr.Sachin.  The doctor advised for a surgery to remove the swelling and the complainant  was taken for a surgery on 18/05/2017.  After that the sample was taken to 1^st OP for biopsy test.  That was tested by 2^nd OP and report was given on 24/05/2017.   As per the report the swelling is a dermoid cyst, so Dr. Sachin advised that no need for further treatment.  Usually treatments are given by the doctor based up on the report given by diagnostic centre.   After few days on the same place the swelling again appeared.  On 07/09/2017 the complainant was taken to KMC hospital, Mangalore.  From there the same sample diagnosed by 2^nd OP again tested and it was found that it is Muco Epederomoid Carcinoma.  It is a type of cancer that forms in Epithelial tissue.  For further treatment the child was taken to Malabar Cancer centre, Thalassery and the child was suggested for an emergent surgery, admitted on 13/11/2017.  Surgery was on 15/11/2017.  The treatment of the child was delayed for 4 months and only because of the delay the swelling became spread.  Complainant stated that due to the incorrect report provided by OP No.2, she cannot receive appropriate treatment in a timely manner.  Further alleged that if OP2 had diagnosed correct report, her disease would have cured at its early stage itself, she had not to get prolonged treatment and surgery could have been avoided.  According to complainant there was negligence on the part of the pathologist (OP No.2) in detecting the pathology report of the biopsy sample.  Hence the complaint.

            OP No.2 filed version stating that on 22/05/2017 a biopsy specimen was received in Noble diagnostic centre with request from signed by Dr. Sachin M R relating to the complainant with a clinical diagnosis of post aural dermoid.  The 2^nd OP had conducted histopathology examination of the specimen with utmost care and diligence and the examination findings were consistent with impression dermoid cyst and accordingly a report was issued. The fact that muceopidermod carcinoma low grade was subsequently detected on further histopathology examination based on recurrence of swelling ipso facto does not make out a cause of action for the complainant .  The 2^nd OP issued a histopathology report stating that examination findings are consistent with dermoid cyst with clear and cogent reasons which any reasonable pathologist would have made at the 1^st at the 1^st instant with same clinical as well as microscopic findings and a later report showing different diagnosis is no ground to infer deficiency in service. Further submitted that clinical diagnosis of the surgeon as per intra operative appearance of the auricular swelling was dermoid and he had specifically recorded in the request form that intra-operatively capsule was breached and pultaceous material come out which according to the surgeon is very significant clinical findings and helpful in histopathology examination.   Further submitted that dermoid cysts are very common in children and the microscopic examination of a dermoid cyst will show sqamous and mucnous cells.  Tissue slide examination showed glands lined by columnar cells with mucus in the lumen  and sqamous cells which are seen in dermoid cyst as well.  Patient’s age is a considerable factor in correlation with other findings on clinical side at the first instance.  Further submitted that on the basis of clear indications on microscopic examination, clinical impression, operative findings as well as considering age of the patient and the location of the swelling it is highly probable for a pathologist to report the impression stating that the findings are consistent with dermoid cyst at the 1^st chance.  A 2^nd examination made after further investigation and with a later clinical correlation of recurrence of swelling and infiltration of tumor into surrounding tissues in C T Scan would have entailed the pathologist to seek out differential diagnosis.  The diagnosis of low grade mucoepidermoid carcinoma was made in the back ground of the clinical history of recurrence of the swelling and  in light of the scan report.  OP2 pleaded that in the light of the above stated facts and clinical correlation there is ample scope for genuine difference of opinion and issuance of histopathology report showing features of swelling consistent with dermoid cyst is not a ground to infer deficiency in service on the part of the 2^nd OP.  Recurrence of swelling is a significant factor for rechecking the nature of swelling through further reinvestigations like UGC and repeat pathological examination.  The statement that the complainant did not get appropriate treatment for the real disease because of failure on the part of the second OP in making proper diagnosis and analysis of pathology is unfounded and hence denied.  In the facts and circumstance of the case, alleged delay in treatment even if proved cannot be attributed to the histopathology report and its findings and the statement that the complainant had to expend huge amount because of delay is denied.  It is submitted that a pathologist cannot be held liable for compensation simply because his conclusions differ from that of another pathologist. There was no willful error on the part of the opposite parties in analyzing the clinical features with microscopic examination findings and issuing report and hence there was no deficiency or inadequacy in the service on their part.

            Both sides led evidence.  Complainant’s father has filed his affidavit evidence and relied on documents Exts.A1 to A22.  Two more witnesses have been examined on the side of complainants.  From the side of OPs, OP2 has filed his chief affidavit evidence and relied on Ext.B1,B2 and B2(a).  One more witness was also examined.

            After that the leaned counsel of parties have made oral argument and also filed written argument note with citations of Hon’ble Supreme Court of India and Hon’ble National Commission.

            We have heard the submissions of learned counsel of parties and have gone through the records.

            It is contended by learned counsel for complainant that the complainant was a four year old girl during the alleged incident of this case.  Complainant’s allegation is that due to the incorrect report provided by OP No.2, she did not receive appropriate treatment in a timely manner.  Further alleged that if OP2 had diagnosed correct report, her disease would have cured at its early stage itself, she had not to get prolonged treatment and surgery could have been avoided.  According to complainant there was negligence on the part of the pathologist (OP No.2) in detecting the pathology report  of the biopsy sample.

            On the other hand OPs contention are that OP2 had conducted the histopathology examination of the specimen with almost care and diligence and with the help of clinical diagnosis of the surgeon, Dr. Sachin who sent the specimen for biopsy, as per intra operative appearance of the auricular swelling was dermoid and he had specifically recorded in the request form that intra-operatively capsule was breached an dbultaceons material come out.  According to OP NO.2 mucodpidemoid carcinoma low garde was subsequently detected on further histopathology examination based on recurrence of swelling does not make out a cause of action to infer deficiency in service on the side of OP No.2.  OP2 contended that  he had came out a finding ‘consistent with dermoid cyst’, based on the clinical diagnosis of the surgeon, patient’s age, location  of swelling further tissue slide examination showed grand lined by columnar cells with mucus in the lumen and squamous cells.  OP2 pleaded that the diagnosis of low grade mucoepidermod carcinoma was made in the 2^nd examination, in the background of the clinical history of recurrence of the swelling and in light of the scan report.   OP2 further contended that this report ‘consistent with dermoid cyst’ does not mean that carcinoma was not present in the cyst ie. presence of cells of carcinoma cannot be ruled out.  Here the points for consideration are

1. Whether there was any deficiency in service on the part of the OPs?
2. If so what relief?

From Ext.A7,A8 and from the evidence of Pw2, Dr. Sachin M R, ENT Surgeon, who examined the child at the first instance on 17/05/2017 diagnosed the complainant by clinically and by FNAC found with dermoid cyst at the left post auricular region.  Not confirmed.  The ENT surgeon had done surgery at the site on 19/05/2017 and the removed cyst was sent to OP No.1 pathology lab for confirmation with reference letter with clinical diagnoses post Aural dermoid, and in the request form Ext.B1 intra operative, pultaceous material came out when capsule breached.  The pathology examination was done by OP No.2 and reported the cyst as consistent with dermoid cyst”.

OP No.2 contended that he has arrived such a findings on the basis of histopathological examination, the clinical findings of the ENT Surgeon, patient’s age and location of the swelling.  OP NO.2 pleaded that second examination made after further investigation and with a later clinical correlation of recurrence of swelling and infiiltration of tumour into surrounding tissues in CT scan would have entailed the pathologist to seek out differential diagnosis.  OP NO.2 submitted that due to the aforesaid facts he cannot be held liable for issuing Ext.A1 histopathology report as swelling consistent with dermoid cyst.

            Complainant alleged that the treatment of the child was delayed for four months only because the disease was not diagnosed and then the disease spread.  So OP No.2 failed in his duty of care towards the complainant.

            Here we are of opinion that the contention of OP No.2 that 2^nd examination made after further investigation and with the clinical finding of recurrence of swelling and mucodemermoid cyst was diagnosed  due to recurrence of swelling and due to CT Scan report  cannot be accepted. From documentary evidence Ext.A1  to A3 biopsy reports and from the evidence of Pw1, Pw2 and Dw3 shows that the same specimen used in OP No.1 diagnostic centre done by OP No.2 pathologist was used for biopsy in other two laboratories.  Further it is revealed that the diagnosis was made in Ext.A2 and A3 are only based on the microscopic appearance in the section.  We can see that in Ext.A2 also clinical diagnosis as post aurical dermoid?  We can further reveal that though the microscopic appearance in Ext.A1 to A3 are almost same, OP No.2 in Ext.A1 clearly mention based on micorcrospic examination that “no evidence of malignancy.”  Then plea of OP NO.2 that his report not ruled out the presence of Muco-epidermoid carcinoma as he had opinioned that features are consistent with dermoid cyst ie most probability of dermoid cyst, cannot be accepted.

            Another contention raised by OP NO.2 that in Ext.A8, the cytopathology report from Lourde Hospital the impression, as post –auricualr dermoid cyst.  It is argued that if OP2’s report is inaccurate, then Ext. A8 is likewise incorrect.

            This submission is not correct Ext.A8 report cannot be considered as similar to Ext.A1 report because, Ext.A8 is FNAC report ie Fine needle aspiration cytology.  For this test, needle is used to take sample superficial masses, it may or may not contain the malignant cells.  In pathology, biopsy is considered as confirmatory diagnostic procedure.  Here Ext.A1 is the pathology report of biopsy sent by the ENT surgeon after the surgery of the swelling.  Pw2 also deposed that Ext.A8 dated 17/05/2017 before the surgery, s a preliminary test.

            Further from the evidenced of Pw2, ENT surgeon who examined the complainant at first and conducted surgery of the swelling after taking preliminary test Ext.A8 and sent the biopsy to OP 2 pathologist for confirmation he has deposed the “pathologist െൻറ Findings എത്താൻ Clinical findings അത്യാവശ്യമാണോ?  അതെ.  Further pultacions materials സാധാരണ Dermoid cyst ൽ കാണുന്നതാണ്.  Squamous cells dermoid cyst ൽ ഉണ്ടാകും.  Further answered ഇതേ കാര്യങ്ങള് ‘ Muco-epi dermoid carcinoma യിലും കാണാറുണ്ട്.  Further during cross examination deposed that 18/05/2017 ന് surgery ചെയ്ത Cyst cancer സ്വഭാവമുള്ളതാണോ എന്ന് ഉറപ്പ് വരുത്തുന്നതിന് വേണ്ടി Reference letter അടക്കം OP യുടെ Lab ലേക്ക് biopsy ക്ക് അയച്ചു എന്ന് പറയുന്നു? അയച്ചു.

            OP No.2 further contended that delay of 4 months to get proper treatment cannot be attributed to the report of OP2.  In the complaint complainant alleged that the recurrent swelling appeared after one week and she was immediately taken to the doctor.  From the medical records ext A7 and from the evidence of Pw2, it is revealed that 06/09/2017 ന് Ext.A7 ൽ പറയുന്നത് പ്രകാരം എന്നെ വന്ന് കാണുകയും വീണ്ടും ആ Cyst വളരുന്നതായി തോന്നി. Higher treatment നായി Mangalore KMC യിലേക്ക് Refer ചെയ്യുകയാണ് ഉണ്ടായത്”.  Further stated that Ext.A1 ൽ Same slide ഉംBlock ഉം ആണ് Mangalore KMC ൽ പരിശോധന നടത്തിയത്? അതെ. അതിനിടയിൽ വേറെ പരിശോധന നടത്തിയിട്ടില്ല? ഇല്ല.  Further അതെ Slide ഉം Block ഉം Malabar cancer   centre ൽ പരിശോധിച്ചിരുന്നു. (Ext.A3) അതിലും cancer ആണെന്ന് കണ്ടിരുന്നു.                Further Pw2 deposed that pathologist will arrive a decision based on the report of surgeon, microscopic findings, age of the patient and location of  swelling and also deposed that in    this case, there is no negligence on the part of pathologist.  But during chief-examination he has deposed that “OP യുടെ Lab ൽ നിന്ന് തന്നെ തെറ്റായ റിപ്പോർട്ട് കാരണമാണ് ഡോക്ടർക്ക് ആദ്യം തന്നെ Carcinoma ആണെന്ന് കണ്ടെത്താനും Treatment നൽകാനും നിർദ്ദേശിക്കാനും സാധിക്കാത്തതെന്ന് പറഞ്ഞാൽ?”. ശരിയാണ്.  On analysis of evidence of Pw3, surgeon working at Malabar cancer centre, in page 3, Pw3 doctor deposed that ആദ്യത്തെ Lab ൽ നിന്ന് ലഭിച്ച റിപ്പോർട്ടിൽ അപാകത ഉള്ളതായി നിങ്ങൾ കണ്ടെത്തിയോ? അതെ. ഞാൻ Cancer നാണ് ചികിത്സിച്ചത്.  Further stated that muco epidermoid carcinoma low grade എന്നത് വളരെ പതുക്കെ വളരുന്ന Cancer ആയതിനാൽ ഒരു Stage ൽ നിന്നും മറ്റൊരു Stage ലേക്ക് പെട്ടെന്ന് മാറുന്നതായി കാണാൻ പറ്റില്ല സാമ്പത്തിക നഷ്ടം കുറയ്ക്കാമായിരുന്നു എന്നു പറഞ്ഞാൽ? കുറയ്ക്കാമായിരുന്നു. കൃത്യമായി Answer ചെയ്യാൻ പറ്റില്ല. During cross examination of Pw3 he has stated that Ext.A1 report ൽ Feature are consistent with dermoid cyst എന്നാണ്.         അതിെൻറ അർത്ഥം Demoid cyst ആകാനുള്ള               Probabilities ഉണ്ട് എന്നാണ്.  Final diagnosisൽ എത്താൻ മറ്റ് Test കൾ

നടത്താൻ സാധ്യത ഉണ്ടെന്ന് പറഞ്ഞാൽ? Ext.A1 report ൻ പറഞ്ഞിട്ടില്ല.  Further ചെയ്യാറില്ല. Patient െൻറ Age pathologist ന് Decision എടുക്കുന്നതിന് കാര്യമായ പങ്ക് വഹിക്കാറുണ്ട്?  ഉണ്ട്.  Swelling ഏതുഭാഗത്താണ് ഉണ്ടായതെന്ന് വളരെ പ്രധാനമാണ്? അതെ.  Malabar cancer centre ൽ വച്ച് Patient ന് CT scan ചെയ്തിട്ടുണ്ട്.  ആയത് Ext.A21 ൽ രേഖപ്പെടുത്തിയിട്ടുണ്ട്.  അത് അസുഖത്തിെൻറ വ്യാപ്തി അറിയാനാണ്. Diagnosis ന് അല്ല.   Cyst വന്നത് Recurring nature ആയിരുന്നെങ്കിൽ Pathologist െൻറ Report മാറുമായിരുന്നില്ലേ? അതിനെ കുറിച്ച് എനിക്കറിയില്ല.  Surrounding tissues ൽ inflammation കാണുകയാണെങ്കിൽ അത് കാൻസർ ആണെന്ന് പറയും? പറയും.  Inflammation CT Scan ലൂടെയാണ് മനസ്സിലാകുകയെന്ന് പരഞ്ഞാൽ? CT scan ലൂടെയും Pathology വഴിയും മനസ്സിലാവും.  Ext.A1 Report subsequent ആയിട്ടുള്ള Diagnosis െൻറ അടിസ്ഥാനത്തിൽ തെറ്റാണെന്ന് പറയാൻ പറ്റുമോ?  പറ്റും.                                             

   Hence Pw2 and Pw3 opinioned that Ext.A1 report issued by OP2 pathologist is a wrong report.  Dw1 deposed in tune with his contention in his version.  Dw2 is the professor and head of the department of pathology at Kannur Medical College since 2006.  He has deposed that it is not possible for a pathologist to examine and report without relying on the clinical and physical features given by the surgeon and locality of the body form where the specimen taken.  Further if a pathologist gives his report that the features of the specimen are consistent with dermoid cyst, does it mean that it is not a carcinoma? No, it does not mean.  But we can see that in Ext.A1 report OP2 pathologist clearly mentioned in the microscopic examination that “No evidence of malignancy”, which evident, according to OP2 the biopsy does not mean presence of evidence of carcinoma.

            Dw3 further deposed that description in Ext.A1 under microscopic examination is similar to Ext.A2 and Ext.A3? yes.  Here we can see that though the microscopic examination in Ext.A1 to A3 are similar, but the report in Ext.A1 is different.  In Ext.A2 and A3 pathologists reported that the diagnosis well differentiated muco epidermoid carcinoma (A2) and suggestive of mucoepidermoid carcinoma – low grade (Ext.A3).  It is to be noted that Dw3 expert doctor deposed in page No.3 cross-examination, “ when different opinions given by doctors based on single test result, then there must be an error in one of them findings”? Yes, further stated that the data available in interpreted.  To the question of complainant’s counsel, “if same data is given to different pathologist and they arrived on different opinions, then there must be an error in one of the opinion? Answer “Yes that can be.”

            Here there is no dispute that OP No.2 pathologist is a qualified and well experienced person.  In Dr. C K Parikh in his text book of medical jurisprudence states that with a professional person, the word negligence has a special meaning.  It is defined as the omission to do something (act of omission) which reasonable person would do, or doing something (act of commission) which a reasonable person would not do.  The consequences of negligence produce liability etc., and are covered in India under Consumer Protection Act.  Here Pws the experts doctor deposed that the report of OP No.2 is not correct and due to that complainant had to sustain physical and mental  agony and monetary loss:  Pw2 deposed that if cancer is detected in early stage can be cured at the earliest and dermoid cyst had no treatment if complete excision in the treatment.  Here there is no case that there is deficiency on the part of Dr. Sachin, who had done excision of the swelling that he had not removed complete swelling.  Further he had done surgery at the initial stage and sent for biopsy to OP2 at the 1^st instant.  Hence from the aforesaid facts and from the statement in the medical jurisprudence as referred above, there is professional negligence on the part of OP No.2 pathologist and he is responsible for the consequences faced by the complainant by availing treatment from different hospitals. The learned counsel of OP quoted some citation of Hon’ble Supreme Court of India and Hon’ble National Commission in which the Hon’ble appellate commission held that negligence must be established and not presumed.  Here from the evidence of Pws2,3 and Dw2, it is evident that  the report given by OP No.2 a senior, experienced pathologist is ‘incorrect’.  Though the microscopic features in Ext.A1 to A3 reports are same, which means, there is act of omission which a reasonable person would do.  So we are of the considered view that there is negligence on the part of the professional person.  Hence he is responsible for the consequences faced by the complainant.   Here complainant failed to prove that she is under treatment still.  From the available evidence we find that OPs No.1 and 2 are held liable for the negligence and be compensated.  From the facts and circumstances of this case we are of the view that there is deficiency in service and negligence on the part of OP2 in the pathology report of the complainants biopsy sample.

            In the result complaint is allowed in part.  Opposite parties are directed to pay Rs.1,50,000/- towards compensation for the monetary loss for the prolonged treatment availed, mental agony and hardship. OPs are further directed to pay Rs.25,000/- towards cost of the proceeding s of this case including the expenses incurred to the witness batta of two experts witnesses.  Opposite parties shall comply the order within one month from the date of receipt of this order.  Failing which the amount Rs.1,50,000/- carries interest @ 12% per annum from the date of order till realization.  Complainant is at liberty to realize the awarded amount by filing execution application as per provisions in Consumer Protection act 2019.

Exts.

A1- Biopsy report

A2- Pathology report issued by Kasthurba Medical college dated 19/09/2017

A3- Biopsy report from Malabar Cancer Centre dated 20/10/2017

A4- Lawyer notice issued to OPs

A5- Acknowledgment card dated 04/12/2017

A6- Reply notice dated 26/12/2017

A7- Prescription list dated 15/05/2017

A8- Cyto pathology report issued by Lorude hospital dated 17/05/2017

A9- Discharge note dated 19/05/2017

A10- Prescription issued by Kasthurba Medical college dated 07/09/2017

A11- Lab report from Malabar Cancer Centre dated 20/10/2017

A12- Pathology report from Malabar Cancer Centre dated 24/11/2017

A13(series)- Follow up card (2 in number)

A14- Outpatient record issued by Lorude hospital dated 17/05/2017

A15- Outpatient record issued by Lorude hospital dated 14/06/2017

A16- Radio diagnosis & imaging report issued by KMC hospital Mangalore

A17- Request for consultation dated 24/11/2018 issued by Malabar Cancer Centre

A18- Prescription issued by Kannur Speciality hospital dated 28/01/2020

A19- USG report issued by Aster mims hospital dated 25/09/2021

A20- Request for histopathology urology examination issued by Aster mims Kannur dated 25/09/2021

A21- Treatment and follow up details issued by Malabar Cancer centre dated 19/11/2017

A22- Cytology report from Malabar Cancer centre dated 08/08/2018

B1,B2,B2(a) & B3- Histopathology report

Pw1-Complainant's father

 Pw2- Dr. Sachin M R-Witness of complainant

Pw3- Dr. Sajith Babu T P- witness of complainant

Dw2- Dr. Vidyadharan Rao- Witness of OP

      Sd/                                                                          Sd/                                                     Sd/

PRESIDENT                                                                   MEMBER                                                   MEMBER

Ravi Susha                                                               Molykutty Mathew                                     Sajeesh K.P

(mnp)

/Forward by order/

Assistant Registrar