KAMLA GUPTACOMPLAINA vs SHARDENDU BALI

-THIS complaint is filed by Smt. Kamla Gupta, the Original Complainant against Dr. Shardendu Bali and Dr. (Mrs.) P. Bali, opposite party Nos. 1 and 2 respectively alleging deficiency in service and gross negligence by the opposite party No. 1. Contentions of Parties complainant

IT is the contention of the complainant (a 38-year old woman with two sons) that she felt a lump in her left breast and on 25. 8. 1997 visited Bali Nursing Home, Ghaziabad with her husband, where she was referred to Dr. Shardendu Bali, General Surgeon [opposite party (O. P.) No. 1]. O. P. No. 1, after examining the complainant, diagnosed her as a case of Fibro-Adenoma (non-cancerous solid tumour) and advised her to undergo Haemoglobin and Random Blood Sugar test and meet him with the reports. The complainant, along with her husband, visited O. P. No. 1 at his clinic with the reports on 11. 9. 1997. After seeing the reports, O. P. No. 1 advised Lumpectomy (surgical operation to remove the breast lump) and asked the complainant to come in the morning of 12. 9. 1997. He assured them that there was no rfsk involved in the operation.

It is further contended that no tests were conducted and no anesthesia was given to her before performing the operation. The operation lasted for two hours and the patient was shifted to the room for post-operative treatment. Soon there after, the complainant started complaining of discomfort and pain at the spot of the operation and a lot of coughing. Complainant''s husband informed the O. P. No. 1 about these complaints and O. P. No. 1 prescribed some medicines and instructed to take them till the problem was cured.

IT is averred that O. P. No. 1 discharged the patient on the same day at about 8. 00 p. m. though her condition was not good and she needed more attention and care. She was advised to take the prescribed medicines regularly and come for checkup on 13. 9. 1997 and for change of bandages on 15. 9. 1997. The complainant took the medicines regularly but her condition did not improve. As advised, she went to the clinic of O. P. No. 1 on 13. 9. 1997 and on 15. 9. 1997 and requested some effective medicines as the pain and cough were getting worse but O. P. No. 1 advised her to continue the same medicines.

ON 17. 9. 1997, the condition of the complainant worsened; so she went to the clinic of the O. P. No. 1 along with her husband and explained the condition. After examining the complainant, O. P. No. 1 told them that he had sent the removed lump to the Agarwal Pathology Lab, Ghaziabad for further examination and asked them to come on 23. 9. 1997. On 23. 9. 1997 when the complainant and her husband again went to the clinic of O. P. No. 1, the latter showed them the report received from Agarwal Pathological Lab and revised his earlier opinion. He declared her as a case of breast cancer and advised them to go to some cancer hospital immediately. But he did not give any specific answer to the query of the complainant''s husband as to why he did not advise the said test prior to the Lumpectomy. Learned Counsel for the complainant submitted that it was the duty of the Surgeon to take every precaution before performing the operation. Conducting various tests before operation is a must for every operation. Recent medical studies reveal that any lump in the breast is always suspected as cancer because it is very common among women. Hence, before performing the Lumpectomy, O. P. No. 1 should have taken a biopsy. In this case he failed to do so which was thus gross negligence on the part of O. P. No. 1.

THE complainant further contends that aggrieved by the lack of due care, gross negligence and deficiency in service on the part of O. P. No. 1 and seeing her serious condition, her husband took her to the Rajiv Gandhi Cancer Institute and Research Centre, Rohini, New Delhi (hereinafter referred to as the ''institute'' ). On 25. 9. 1997, the complainant was admitted to the Institute and the Chief Surgical Officer (CSO), after carrying out essential and necessary tests, declared her as a patient of cancer. According to the complainant, the CSO opined that (i) the Lumpectomy performed by the opposite party No. 1 was the main cause of the cancer tentacles in the breast getting aggravated; (ii) had O. P. No. 1 prescribed the essential test of FNAC (Fine Needle Aspiration Cytology) biopsy of the lump before the surgery to ascertain as to whether the lump was cancerous or not, the disease could have been cured through Mammography and Radio Therapy and (iii) now, conservative surgery of the left breast was inevitable to save the complainant''s life.

ON 26. 9. 1997, CSO of the Institute performed the Lumpectomy with Axillary Clearance on the complainant. After the operation she was kept under keen observation till 29. 9. 1997 and discharged from the Institute on 29. 9. 1997. The complainant had to go to the Institute time and again for Radiotherapy and later on for Chemotherapy, as advised by the Doctors. The complainant was also advised to continue the prescribed medicines at least for the next three years. The learned Counsel for the complainant also submitted that she was still under treatment, which would continue till the Doctors of the Institute declared her cancer-free.

The complainant thus alleged deficiency in service, gross negligence and casual approach of OP. No. 1 and claimed Rs. 33 lakh as compensation on account of suffering, earning losses, damages and costs from O. P. No. 1. Opposite Parties

LEARNED Counsel for the opposite parties submitted that O. P. No. 1 excised the lump, which was clinically Fibro Adenoma of the breast. He further stated that the established treatment of this condition, viz. excision was carried out and O. P. No. 1 also got the histopathological examination done for confirmation of diagnosis. The complainant was informed about the probable cause of the lump, which might be benign or malignant, and as such the lump removed was sent for histopathological examination to Pathological Lab. The malignant cells did not spread anywhere in the body which was also confirmed by the Rajiv Gandhi Cancer Institute and Research Centre which was as under: "diagnosed case of infiltrating ductal carcinoma-left breast. No residual tumour tissue seen. All the cut margins, surface skin and axillary lymph nodes are free of tumour tissue. " It was submitted by the learned Counsel for the opposite parties that the opinion of the Rajiv Gandhi Cancer Institute and Research Centre also clearly showed that after the excision no cancerous tissues remained in the breast or body of the complainant. He further submitted that O. P. No. 1 had given the treatment to the best of his skill and according to the basic standards of Medical Science. According to the standard practice, all suspicious and mobile breast lumps needed to be removed and sent for histopathological examination for final diagnosis. Learned Counsel for the opposite parties added that the probable nature of the lump and various available diagnostic procedures of biopsy, i. e. , Trucut biopsy, FNAC biopsy and excisional biopsy had been explained to the complainant and her husband. The pros and cons of all the procedures available were discussed with the complainant and she was advised to get haemoglobin and random blood sugar tests done. The complainant reported to the OPs only after a gap of 17 days, i. e. on 11. 9. 1997 with these reports, which are generally made available to a patient by the Pathology Lab within six to eight hours. The learned Counsel further submitted that during this period of 17 days the complainant might have taken the advice of the other Surgeons and after satisfying herself again came to O. P. No. 1 for the excision biopsy.

LEARNED Counsel for the opposite parties stated that the complaint filed by the complainant had no basis and logic and there was no deficiency in service or negligence in the treatment of the complainant. He added that there was no allegation against O. P. No. 2 and no relief had been claimed against O. P. No. 2. It was further submitted by the learned Counsel that the allegations of the complainant were self contradictory as the complainant herself stated that for the whole treatment O. P. No. 1 only charged Rs. 1,800 which included the operation fee of O. P. No. 1, fee of the Assistant, Theatre charges, room charges along with those for disposable items, followup visit charges, dressing charges and consultation charges. He further alleged that the complainant concealed the fact that OP No. 2 had also assisted O. P. No. 1 during the surgery. Hence, the complainant filed the complaint was only to defame and extract money from the opposite parties and the complaint should be dismissed with costs. Findings It is clear and admitted that the complainant approached O. P. Nos. 1 and 2 on 25. 8. 1997 with the complaint of lump in her left breast. From a reading of the relevant extracts produced from the text books - Surgery - Scientific Principles and Practice edited by L. J. Greenfield, it may be seen that the lump in the breast can either be benign (non-cancerous) or malignant (cancerous ). Microscopic examination of the tissue cells taken out from the lump by a process known as biopsy is the only way to know whether the lump is cancerous or otherwise. It is also clear that there are many ways of removing these cells for examination, namely, Fine Needle Aspiration Cytology; Needle Biopsy, also called Core Needle Biopsy or Tru cut Biopsy, where a slightly bigger needle is used to take out a core of the tissue from the lump; Excision Biopsy or Surgical Biopsy where a minor operation is done to remove the whole lump. There are also other types of biopsy. Each of these methods has its own limitations. For example, in the case of FNAC biopsy, since a fine needle is used, only a few cells are extracted and it may or may not reveal cancer even if cancer exists. The margin of error in the case of FNAC is said to be 4 to 25%. It is clear that the surer way of finding out if cancer is present is excision biopsy where most of the lump is removed and sent for examination. This is exactly what O. P. No. 1 did. After extracting the lump on 12. 9. 1997, OP. No. 1 had, on the same day, handed over the properly sealed sample to the complainant''s husband for getting it tested in a proper Histopathological Lab for cancer. On 17. 9. 1997 the Pathological Lab gave the report to the complainant. The report mentioned that cancer was present. The complainant produced the report before O. P. No. 2 only on 23. 9. 1997. Immediately, O. P. No. 2 advised him to go and get further examination done at a hospital specializing in cancer, namely, Rajiv Gandhi Cancer Institute and Research Centre.

AT this stage, it may also be mentioned that while removing the tumour, O. P. No. 2 examined the complainant clinically. Considering her age and the nature of the lump on palpitation (that the lump was freely mobile, there was no change in overlying skin and axillary lymph nodes were not palpable), O. P. No. 1 made a provisional diagnosis that it was a case of Fibro Adenoma (meaning non-cancerous lump) quite common in women below the age of 40. But O. P. No. 1 took the precaution of immediately sending the extracted lump for histopathological examination. This examination, however, revealed that the removed lump was cancerous.

THE next guestion is whether the operation done by O. P. No. 1 was proper; whether he left out any cancerous cells; and whether any cancerous growth was removed in subsequent operation at the Rajiv Gandhi Cancer Institute. The complainant was operated upon a second time at the Rajiv Gandhi Cancer Institute on 26. 9. 2997. It is obvious that this operation was done on the basis of the Hostopathological Lab''s finding that the lump removed in the first operation was cancerous. However, the important thing is that after the second operation and removal of some more lump from the breast, the removed material was sent on 27. 9. 1997 (i. e. the day after the operation) for hostopathological examination in the same Institute. The Hostopathological Report given on 29. 9. 1997 clearly showed that no cancerous material was found in the lump so removed. The report says that no residual tumour is seen. All the cut margins, surface skin and axillary lymph nodes are free of tumour tissue. Therefore, it is clear that O. P. No. 1 had already removed the cancerous matter in the first operation even though he may not have suspected it to be cancerous on the basis of the clinical examination. Further, it must be noted that O. P. No. 1 is only a general Surgeon and not a specialist in cancer. According to his skills and following the medical dictum that it is better to remove all tumours from the breast, he resorted to the removal of the lump, which he did properly and with adequate care and also took the necessary step of sending the material for Hostopathological examination.

Some material has been brought on record to show that cancer has recurred in the complainant in 2006 on examination at the All India Institute of Medical Sciences, Delhi. The fact that the cancer has recurred after several years cannot be held against the opposite parties in the case. As seen from the report of the hostopathological test at Rajiv Gandhi Institute of Cancer, done within 10 days after the first operation, the entire cancerous tumour was removed in the first instance itself. It is unfortunate that some recurrence of cancer is seen after seven years but such recurrences are not uncommon.

WE, therefore, do not see any case of negligence on the part of the opposite parties who have taken adequate and timely care of the complainant as per the medical practices. Hence, the complaint is dismissed. There shall be no order as to costs. Complaint dismissed.