Kaushal Pandey (Dr.) vs S.V. Panchori And Ors.

THE present appeal is directed against the order dated 8.12.98 passed by the Maharashtra State Consumer Disputes Redressal Commission, Mumbai (in short, the State Commission'') in complaint case No. 160/95. By the impugned order, the State Commission has partly allowed the complaint filed by the complainant. Shri S.V. Panchori, Smt. Vimala Devi Panchori, Ms. Jitendra Panchori and Bharat Kumar Panchori, legal heirs of the deceased, Mr. Mahavir Panchori and directed the opposite party No. l, Dr. Kaushal Pandey, appellant herein, to pay a sum of Rs. 2,25,000 (Rs. 1,65,000 spent on medical treatment, Rs. 50,000 on account of travel expenses and Rs. 10,000 as cost) to the complainant within two months from the receipt of the order. The second opposite party, Hinduja Hospital was, however, exonerated.

THE facts leading to the filing of the complaint have been noted in greater detail in the impugned order and need no repetition. For the purpose of disposal of the present appeal, it would be sufficient to notice that one Mr. Mahavir Panchori, aged about 42 years, at the relevant time in February, 1994 and belonging to Udaipur District, had approached Dr. Kaushal Pandey in Hinduja Hospital, Bombay with symptoms of pain and collapsed lung. On 28.9.2004 Dr. Kaushal Pandey, appellant performed a surgical operation called decortication and thoracoplasty so as to drain/strip the pleura which had accumulated fluid. The procedure was uneventful. After about two weeks of the operation and on recovery, Mr. Panchori was discharged from the hospital. However, two months later, the pain recurred at the site of the surgery conducted by Dr. Kaushal Pandey earlier and certain medicines, mostly pain killers, were prescribed. At the advice of the physician, Dr. Zaree Udwadia at P.D. Hinduja Hospital, the patient was referred to Dr. R.L. Shah of Bhatia Hospital for a lung scan and histopathological test of lung biopsy which did not disclose any cancerous development. However, in May, 1995, a surgery was performed by Dr. R.L. Shah and a large mass was removed from the lung/pleura of the patient and sent for histopathological examination to Breach Candy Hospital which report suggested that there was a malignant tumour - Mesothelioma of pleura but pleura was removed by Dr. Pandey "decortications, etc.". Though several doctors were consulted later at Tata and Bombay Hospital, the patient could not be saved as the cancer had reached at an advanced to a stage of no return and he died at his native place in Udaipur District.

ALLEGING medical negligence/deficiency in treatment on the part of Dr. Kaushal Pandey and the Hinduja Hospital, a complaint was filed by the above -named successors - in -interest of the deceased which was resisted by Dr. Kaushal Pandey and the Hospital, the latter denying any negligence/deficiency in the treatment given by them to the patient rather claiming that Dr. Kaushal Pandey is a skilled and experienced surgeon who treated the patient to the best of his ability and, in fact, after the surgical procedure conducted by him, the patient had recovered and was relieved of his ailment. On consideration of the respective pleas and the material brought on record, the State Commission returned categorical finding that there was no medical negligence on the part of Dr. Kaushal Pandy in making the correct diagnosis and conducting the requisite surgical procedure to remove the pleura from the chest of the patient. However, after detailed examination of the pleas and more particularly going by the medical literature appearing in Harrison''s Principles of Internal Medicine by Don R. Miller, the Commission held the appellant guilty of limited medical negligence in not sending a sample of the pleura for histopathological examination after conducting the said surgical procedure. In the opinion of the State Commission, not sending a sample of the pleura after the first surgery for histopathological examination amounted to negligence/deficiency in service, entitling the complainants to compensation as above.

WE have heard Mrs. Geeta Handa Khanuja, Learned Counsel appearing for the appellant, Ms. Shweta Verma, learned Counsel representing respondent No. l and Mr. Ashish Wad, learned Counsel for respondent No. 2 and have given our thoughtful consideration to their submissions. We have also carefully perused the material brought on record.

BEFORE dealing with the pleas and the contentions raised on behalf of the parties, we must observe that after the disposal of the complaint by the State Commission by means of the impugned order, the appellant had filed two reports one, from Dr. Murad E. Lala and the other from Dr. Shantesh Durgesh Kaushik from Hinduja Hospital, purported to be experts'' opinion on the subject, which have been placed on record without seeking permission of this Commission. Therefore, strictly speaking, these purported experts'' reports are to be discarded from consideration as evidence supporting the grounds of appeal. It may be further noticed that though the appeal was pending in this Commission since the year 1999, yet when the appeal came up for consideration before the Commission on 20.12.2006, the Commission on consideration of the controversy involved in the matter, appointed Dr. Vinod Kochupillai, Head of the Department of Robary Club Cancer IRPH, AIIMS, New Delhi for obtaining his expert opinion by observing as under: "....... Heard the learned Counsel for all the parties. Admittedly issue involved in this case relating to medical negligence is whether the Appellant should have obtained the histopathology report of the complainant during the time complainant was under the treatment of the Appellant? Admittedly again, what we see on record is the complaint and the written version; there is no evidence on record and there is no expert opinion on the subject led by any party. In view of above, we are inclined to obtain expert opinion on the point of issue for which we request Dr.Vinod Kochu Pillai, Head of Department, Rotary Club (Cancer IRPH) AIIMS, 16, Ansari Nagar, New Delhi -110029, for giving the expert opinion on the point at issue after going through the order passed by the State Commission as also the Hospital record brought on record. Dr. Vinod Kochai Pillai shall be paid Rs. 10,000 for rendering his expert opinion which initially shall be shared by the complainant and the appellant. It shall be subject to final outcome of the Appeal. The Registry is directed to send a copy of the paper -book with a copy of this order to Dr. Vinod Kochai Pillai for obtaining the expert opinion. Since the matter is old. Dr. Pillai is requested to render opinion in a sealed cover to this Commission within a period of four weeks."

LEARNED Counsel for the appellant vehemently urged before us that the State Commission had erroneously held the appellant guilty of medical negligence for his omission to send a pleura sample for histopathological report as, according to her, it was not mandatory for Dr. Pandey to do so after conducting the surgical procedure of decertification and thoracoplasty on the deceased patient, more particularly so when there was no reason to suspect that the patient had any history of suffering from cancer. On the other hand, it is pleaded that having regard to the totality of the facts, it was essentially required of the appellant doctor to have sent a pleura sample for histopathological report. In our view, this is a technical question which can better be decided on the strength of the opinion of medical experts in the said field. As noticed above, on consideration of the matter, this Commission deemed it appropriate to call for the report of an independent expert, namely, Dr. Vinod Kuchupillai, whose report was received vide communication dated 3.2.2007. The report contains the summary of the facts and comments of Dr. Vinod Kuchupillai. We deem it appropriate, to reproduce the said report in extenso: 1. This patient had pleura! effusion with collapsed lung of unknown etiology.

Since patient was not responding, decortication was carried out.

It is the routine practice that any material that is removed during surgery is sent for pathological examination. If it is a tissue it is sent for histopathology and if it is fluid it is sent for cytology and bacteriological cultures, etc.

In this particular patient it was essential to send both; the pleural tissue fluid for cytology and bacteriological examination and pleura for histopathology (please see page 56 of the document for 1st, 2nd paragraph, needed thoracentesis and pleural biopsy.

It is a well known fact that diagnostic yield of pleural histopathological examination is much higher compared to fluid cytology.

It is a usual practice with us that if pleural fluid cytology fails to provide a diagnosis then pleural biopsy is performed and many times diagnosis can be established based on histopathology of pleura.

In this particular case pleura was available following the procedure of decortication. It ought to have been submitted for histological examination (as per the usual practice) more so because pleural fluid cytology was negative.

It is not possible for any surgeon to say whether the tissue is abnormal or not (Page 9 point 12) unless histopathological examination is carried out. Just by looking at pleura this judgment cannot be made and should not be made.

It is not uncommon that patient may appear normal, yet he may be suffering from cancer.

As to whether, sending a pleural tissue for histopathology at the time of decortication would have provided the diagnosis and could have saved his life cannot be said.

Negative biopsy would certainly not have helped the patient. Positive biopsy may or may not have helped him.

Statement on page 18 -No. 15: A statement that pathological report is obtained only when surgeon detects some abnormality in any tissue: is not correct. Naked eye is unlikely to detect abnormal tissue unless there is some gross defect. Hence, any material obtained during surgery is routinely submitted for histopathology reports.

Cytological examination of fluid cannot rule out malignancy as the diagnostic yield of cytological examination of fluid is often poor. However, pleural biopsy (pleural tissue obtained through needle) carries a much better diagnostic yield. Here in this instance, pleural was removed during surgery yet not submitted for histopathology. This material ought to have been submitted. However, it may or may not have provided the diagnosis. 14. Page Nos. 32 -42 are not easily readable, hence cannot be commented upon.

Page Nos. 48 -52 are also not easily readable, hence cannot be commented upon, material, remaining pages after 52 are also difficult to read, whatever is readable appears to be a duplication of what has already bee stated.

IN the said report, Dr. Kuchupillai has observed that it is a routine practice that any material that is removed during surgery is sent for pathological examination. If it is a tissue it is sent for histopathological examination and if it is fluid it is sent for cytological and bacteriological cultures, etc. He further observed that "in this particular patient it was essential to send both; the pleural tissue fluid for cytology and bacteriological examination and pleura for histopathology and that diagnostic yield of pleural histopathological examination is much higher compared to fluid cytology. He further opined "it is a usual practice with us that if pleural fluid cytology fails to provide a diagnosis then pleural biopsy is performed and many times diagnosis can be established based on histopathology of pleura". In the report, he further stated that it was not possible for any surgeon to say whether the tissue was abnormal or not unless histopathological examination was carried out because no judgment could be made and should not be made just by looking at the pleura. He discarded the plea that histopathological report was obtained only when a surgeon detected any abnormality in any tissue. In regard to the question, whether sending of pleura tissue for histopathological test at the time of decortication would have provided the diagnosis and could have saved the patient''s life, no opinion is given.

GOING by the foregoing observations and expert opinion, there is no escape from the conclusion that, in the facts and circumstances of the case, symptoms and diagnosis for which the deceased patient was admitted to Hinduja Hospital and for which the surgical procedure of decortication was carried out, the appellant ought to have sent the stripped pleura for histopathological test. Not doing so clearly amounts to negligence as perceived in the Halsbury''s Law of England and by this Commission and the Apex Court in a number of its decisions. Had the appellant doctor applied the ordinary degree of skill and care required of a medical practitioner, there could not have been such a grave omission. The patient was subsequently referred to Dr. R.L. Shah of Bhatia Hospital and realizing some ailment, he asked for histopathological report and, in fact, he enquired with the appellant about any previous report but there was none. The deceased was thereafter operated upon by Dr. Shah who removed a large tumour and sent the same for histopathological test and the report confirmed that the deceased was suffering from Mesothelioma, a kind of cancer which was in an advanced stage and almost incurable by the time. Had the said test been conducted and report obtained by the appellant in the month of September -October, 1994 it could have perhaps been possible to detect the cancer. Though such early detection and proper treatment might not have saved the life of the deceased patient, we can assume that it would have prolonged his life. We are, therefore, in full agreement with the finding of the State Commission that the appellant doctor was negligent to the above extent, viz., not taking out a sample of the peeled pleura and sending it for histopathological test after the performance of decertification.

NOW coming to the ultimate question as to whether in the facts and circumstances of case and the nature and extent of the medical negligence for which the appellant doctor has been found guilty, the compensation awarded by the State Commission is just and reasonable. In this connection, we may observe that the respondents have not filed any appeal for enhancement of the compensation awarded by the State Commission and, therefore, it would be presumed that they have accepted the compensation awarded by the State Commission. The State Commission has awarded in all a sum of Rs. 2,25,000 to the complainants, i.e., Rs. 1,65,000 on account of expenditure incurred by them on medical treatment of the deceased patient, Rs. 50,000 as travel expenses and Rs. 10,000 as cost of the proceedings. This brings out the mind of the Commission that it has confined the award of compensation largely to the expenditure incurred by the deceased/heirs of the deceased in the treatment of the deceased patient. In this connection, learned Counsel for the appellant has vehemently urged before us that as per the State Commission there was no negligence in either diagnosis or treatment of the patient and the decortication operation was conducted meticulously and pleura was peeled off the lung after which there was re -expansion of the lung and appreciable improvement in the condition of the deceased patient. It is urged that once it is found that there was no negligence in treatment, the State Commission was not justified in directing the appellant doctor to pay the entire sum of Rs. 1,65,000 spent of medical treatment or Rs. 50,000 on account of travel expenses. On the other hand, learned Counsel for the respondent submits that the compensation awarded by the State Commission is quite proper and is rather on lower side. After giving our anxious consideration and taking an over -all view of the matter and the limited negligence for which the appellant doctor can be said to be guilty in the present case, we are of the opinion that the award of a sum of Rs. 2,25,000 appears to be somewhat on the higher side and it requires some suitable modulation. In our view it would adequately meet the ends of justice if we reduce the compensation from Rs. 2,25,000 to Rs. 1,25,000 including the cost of litigation.

AS a result, the appeal is partly allowed. While maintaining the finding of the State Commission in regard to limited medical negligence on the part of the appellant doctor, we modify the impugned order only to the above extent. Learned Counsel for the appellant has brought to our notice that after filing of the present appeal and under the orders of this Commission, the appellant has deposited a sum of Rs. 2,25,000 with this Commission. We, therefore, direct the Registry to pay a sum of Rs. 1,25,000 along with interest accrued on the amount of Rs. 2,25,000, to the respondent and the balance amount of Rs. 1,00,000 shall be refunded to the appellant. The appeal stands disposed of in these terms. Appeal partly allowed.