Anupma Nigam (Dr.) vs Manish Kumar Sharma & Ors

For the convenience, the parties herein are hereafter referred to as per their status in original complaint before the District Forum. 1. On 27.5.2005, the Complainant, Manish Kumar Sharma, took his wife Smt. Sita, aged about 29 years, to the Petitioner/OP-1, Dr. Anupama Nigam for treatment, during her pregnancy. The OP-1 advised for an ultrasound (USG) from the OP-2, Dr. Poonam Mehrotra and it was diagnosed as 13 weeks pregnancy with a tumor measuring 14.5 x 10.5 cm near the uterus. The OP-2 suggested FNAC, accordingly OP-1 advised FNAC from the Pathologist, OP-3, Dr. Rekha Garg of Amba Pathology. The Complainant alleged that after FNAC, the patient developed some problem, the blood was collected in the abdomen. She consulted the OP-1, who advised need of removal of tumor, the fibroid. Therefore, the patient consulted different doctors in Kanpur and finally approached Maduraj Nursing Home in serious condition of Hemoperitonium with shock and septicemia. There, she was given proper treatment and blood transfusion. The patient gave birth to a pre-mature baby. Hence, the Complainant alleged that it was due to negligence during performing FNAC which was advised by the OP-1, the complainant suffered financial loss and mental agony. Thus, complainant filed one complaint before the District Consumer Disputes Redressal Forum, (in short, ''District Forum'') Kanpur in Consumer Complaint No. 123/20089 and another Criminal complaint before the District Magistrate.

The District Forum allowed the complaint and passed the following order: "The Complaint is allowed jointly and separately. The Opposite Party Nos. 1 to 3 are directed to pay L 1,80,000 to the Complainant along with interest at 8% from the date of filing of this complaint till its realization. The same order be complied within 30 days from today. Complaint is dismissed against the OPs 4 and 5."

Thereafter, the OPs 1 to 3 filed First Appeal No. 1850/2209 before the State Consumer Disputes Redressal Commission, (in short, ''State Commission''), Uttar Pradesh, which was dismissed. Hence, the OP-1 approached this Commission through this Revision Petition.

We have heard the Counsel for the parties. The Petitioner is also present in-person. There was delay of 4 days in filing this revision petition, it is condoned after perusing the application filed by the petitioner for condonation of delay. On merits, the Counsel for the Complainant, Mr. Pardeep Kumar vehemently argued that the OP-1 have misguided the patient that there was tumor, it was cancerous and needed immediate surgery. The FNAC was advised by the OP-1. She did not take any consent in this regard. Even after FNAC, she has not treated the patient properly, but informed that there will be danger to the foetus and there are chances of removal of uterus also. He further contended that the Medical Board Report is against the OP-1. OP-1 had not followed the norms prescribed by MCI and PNDT Act. The OP-1 influenced the District Magistrate and took favourable report. Hence, there was total negligence and prayed for dismissal of the Revision Petition.

The rival arguments from the learned Counsel for the Petitioner/OP are that, the patient had pregnancy with a uterine tumor. OP-1 did not advise the radiological investigation like MRI; therefore FNAC was advised as one of the safe method for diagnosis of tumor. The FNAC was performed under USG guidance by the pathologists Dr. Rekha Garg (OP-3). There was no injury to the uterus or the foetus during FNAC. After FNAC there was bleeding in the tumor, it was known complication. The OP-1 advised the patient for further management, but patient approached the Madhuraj Hospital. The OP-1 performed her duty as a reasonable doctor, and it was not negligence.

We have perused the medical records on file and the evidence of both the parties adduced before the District Forum. The OP-1 is a qualified Obstetrician and Gynaecologist (OBG), the patient was diagnosed by USG study as having pregnancy with a tumor. For further management of patient, it was necessary for the OP-1 to confirm the type and nature of the tumor whether it was benign or malignant, hence advised FNAC as a safer diagnostic tool. Therefore, we don''t find any deficiency in service or any negligence on the part of OP-1. The patient suffered bleeding in the tumour which is a known complication, for that, neither the Pathologist (OP-3) who performed it nor the consultant OP-1, who advised it, are liable. We have perused the medical records from Madhuraj Nursing Home. The patient was admitted at Madhuraj Nursing Home from 31.5.2005 to 8.6.2005. During the said period, the USG report dated 31.5.2005, 1.6.2005 and the MM report dated 1.6.2005, revealed that the patient had 13 weeks'' pregnancy with a broad ligament fibroid measuring 15.5 x 10.8 x 9.1 cm with minimal hemoperitorium. The patient was treated conservatively at Madhuraj Nursing Home, no major surgical intervention needed. Also, there is nothing on record about when and where the patient''s delivery took place? Whether it was premature delivery? Therefore, the complainant failed to prove any negligence on the part of the OP.

Moreover, there are three expert opinions available on file. One opinion was given by 3 reputed doctors Dr. Ratan Agarwal, Dr. Vimlesh Sharma and Dr. Deepak Agarwal; 2nd opinion dated 12.7.2007was given by expert committee of two doctors from GSVM Medical College at Kanpur and 3rd opinion dated 12.5.2008 was from U.P. Medical Council; all have opined that, the advice of FNAC given by the Dr. Anupama (OP) was a diagnostic method of choice and that in the given facts and circumstances of the case, none of the doctors can be said to have committed any medical negligence.

FNAC test is a widely accepted as simple one, which is a safe, rapid, inexpensive and accurate diagnostic procedure. It is used as a clinching investigation of any palpable mass either small or huge size, superficial or deep which may prove to be non-neoplastic or neoplastic or may give classified diagnosis. The Ultrasound guided FNAC of intra-abdominal masses is a valuable tool in assessment and a pre-operative diagnostic procedure in management of intra-abdominal lesions. In this case, we have noted that the Pathologist, OP- 3, had not taken informed consent for performing USG guided FNAC. Certainly, it was the lapse on the part of OP 3, i.e. breach in duty of care. The essentials of medical negligence are 4 "D"s, and for successful claim, the patient/complainant has to prove the doctor had

Duty towards patient

Deficiency/Breach in duty

Directly the breach resulted injury (causa causans)

Damage occurred which may be physical, mental or financial loss to patient or relatives.

In this case, the breach from OP3 did not cause any injury or damage to the patient, thus we restrain ourselves to fasten any liability of medical negligence upon the OP-3.

The complainant raised several other issues like OP-1 had flouted MCI and PNDT Act norms, which are no way concerned with the consumer complaint. Complainant can seek remedy as per law from the Professional Regulatory Bodies. Hence, on the basis of forgoing discussion, we accept this revision petition and dismiss the complaint. However, there shall be no order as to costs. Revision Petition allowed.