LEENA BHATTACHARJEE vs NIGHTANGLE DIAGNOSTIC AND EYE CARE RESEARCH CENTRE (P) LTD.

THE complainant has approached this Commission claiming a total compensation of Rs. 8,08,325/- including expenses incurred for her treatment and litigation expenses.

BRIEFLY stated the facts of the case are that on 21/22.1.1994 blood came out along with cough of the petitioner. So she consulted physician of Baidyabati and on their advice X-ray and Ultrasonography were done. Subsequently she consulted Dr. Tarun Banerjee and Dr. Kishore Nandi of Kolkata. On scrutiny of X-ray report and after proper check up she had been advised for C.T. Scan and biopsy in the month of February, 1994. On 10.2.1994 Dr. N.C. Paul, the Chief Pathologist of the O.P. gave a report wherein he stated small cell Carcinoma of lung. She consulted Dr. Saibal Gupta and on his advice took admission at Calcutta Medical Research Institute for operation. The petitioner also consulted Dr. Saroj Gupta who also opined for immediate operation after going through the report given by the O.P. Accordingly Dr. Saibal Gupta did the operation on 7.4.1994 and the left upper lobe of lung was removed and after removal the same was sent to Dr. D.K. Mitra, Pathologist of C.M.R.I. who in his report dated 16.4.1994 observed that there was no sign of Cancer. She was discharged from the Hospital on 18.4.1994 and further Pathological test which was done on 23.9.1994 confirmed the report of Dr. D.K. Mitra. According to the petitioner because of faulty report of the O.P. her left lung was removed unnecessarily. She alleges deficiency in service on the part of the O.P. and adoption of unfair trade practice.

The petitioner was running a music school where there were more than 50 students and she used to earn Rs. 2,500/- per month by imparting music lesson to the students. She claims that she has incurred medical expenses aggregating Rs. 48,325/- and because of the operation she had become physically infirm inasmuch as her one lung had been removed.

THE case is contested by the O.P. by filing a written objection wherein it has been claimed that Dr. N.C. Paul, the Chief Pathologist is a Doctor by profession from 1953. He is a P.H.D.D. Fil (Pathology) from Calcutta University. He was the Head of the Department of Histopathology of the Pathology Department and Institute of Post Graduate Medical Education and Research, Kolkata. He has experience in serving abroad in several Hospitals. He admits that on 9.7.1994 the petitioner approached him through the O.P. and on examination of Xray, C.T. Scan etc., it was found that she had a soft tissue lesion of about 3 cms. in diameter in the left lung upper lobe. According to him during the course of C.T. Scan the needle was placed at the centre of the lesion of the petitioner at her left lung upper lobe to take out cell aspirable material. On examination of such material he submitted his FNAC (Fine Needle Aspiration Cytology). On examination of FNAC slide he found small cell carcinoma lung suggestive of primary tumour of lung. However, he claims that he has not given any confirmed diagnosis in the matter. He denies any knowledge of further report by Dr. D.K. Mitra and further he submits that the slide was received on 23.5.1994 but the report thereof was given after the lapse of five months i.e. on 2.12.1994. According to him the quality of the slides has changed with the passage of time. THE staining character of the slides must have deteriorated due to passage of time and non-preservation thereof according to medical/technical norms. According to him the FNAC report prepared by him was from the lesion of 3 cms. size it was pointed out in C.T. Scan report. It was the report of a particular affected area of the lung and not the entire lung. Purported report was however, conducted for entire upper left lobe of lung and the slide that was reviewed suggests that the same relates to the area outside the 3 cms. area of lesion. He denies any knowledge of the petitioner running a music school she had to abandon the profession because of operation. The petitioner challenges the correctness of the report dated 10.3.1994 furnished by Dr. N.C. Paul on behalf of the O.P. viz. Nightangle Diagnostic Centre, Kolkata. In the said report Dr. Paul observed as follows : "Small cell carcinoma of lung, suggestive of primary tumour of lung. The case of the petitioner is that she had approached Dr. Saibal Gupta for consultation along with this report who suggested immediate operation and removal of lobe of the left lung. She also consulted Dr. Saroj Gupta who also advised immediate removal of the said lobe. Accordingly the lobe of the left lung of the petitioner was removed by operation by Dr. Saibal Gupta. After operation biopsy was done which showed that there was no evidence of malignancy in the sections examined and the lesion is either tuberculosis or sarcoidosis is other possibilities of non-casetting granuloma formation may be considered as well. This report was furnished by Dr. D.K. Mitra of the Calcutta Medical Research Institute which is dated 16.4.1994. Learned Counsel appearing for the petitioner submits that when Dr. Paul was not sure about the malignancy of the lobe of the left lung he could have suggested biopsy. The learned Counsel for the O.P. submits that it is not part of the pathologist to suggest any biopsy test. He submits further that before undertaking operation the Surgeon viz. Saibal Gupta ought to have obtained a definite report about the malignancy of the lobe of left lung. He submits that neither Dr. Saibal Gupta nor Dr. Saroj Gupta has been examined in this case to show that they have clinically observed malignancy in the lobe of the left lung of the petitioner and then decided to operate. He submits that if they have clinically examined the patient had perused the report of Dr. N.C. Paul, Pathologist attached to the O.P. minutely they would have suggested a further examination before undertaking operation but this was not done. It appears that the slide was examined by Dr. K.P. Sengupta of Calcutta Medical Centre who by report dated 2.11.1994 observed that one of the slides shows features of interstitetal pneaumonia. He observed that the second slide shows evidence of non-casetting giant cell granuloma strongly suggestive of sarcoidosis. This could also be modified coach''s infection. Unfortunately, Dr. Sengupta is no more in the world of living. On the basis of the report of Dr. Mitra and Dr. Sengupta it has been argued by the learned Counsel for the petitioner that the petitioner was not afflicted with Carcinoma and Dr. N.C. Paul has given a faulty report resulting in unnecessary removal of the lobe of the left lung. Learned Counsel for the O.P. submits that the small cell lung Carcinoma are rapidly growing lesions that tend of infituate and disseminate early in their course and so are rarely resectable. They are, therefore, almost always treated by combined Radiotherapy and chemotherapy. In support of his contention he has referred to the observation of the Book on Basic Pathology by Vinoy Kumar and Others. He has also drawn our attention to the Book of Pathology by Anderson wherein the learned Author observed that small cell Carcinoma is highly malignant and almost invariably has metastasized by the time of diagnosis. Therefore, accurate diagnosis is mandatory to avoid unnecessary surgery and electron microscopy of emunologic marker should be used doubtful cases. In fine he wants to submit that before undertaking surgery Dr. Saibal Gupta ought to have been careful and cautious. But in this case he has undertaken the surgery hastily. The O.P. has filed one affidavit-on-evidence of Dr. Sudipta Roy. Dr. Roy is in the profession since 1983. He is M.D. (Pathology) from Post Graduate Institute of Medical Education and Research, Chandigarh. He has other degrees from various other Universities abroad. According to him the report of Nightangle (O.P.) has been sampled from a spherical mass in the left lung under C.T. guidance and interpreted as small cell Carcinoma of lung. According to him the report of C.M.R.I. is from the left upper lobe lung and hilarnotes as the sampling was done from neurotic systic space near surface. According to him the size of needle aspiration as carried out in O.P. may not have been sampled for histropathological examination at C.M.R.I. He observes that since the sampling of Nightangle and C.M.R.I. are from different anatomical sites of lung. It is possible that the interpretations are different and cannot be compared. It appears from his affidavit that the report of Calcutta Medical Centre was issued almost five months after the receipt of FNAC slides of Nightangle done on 9.2.1994. According to him the FNAC smears strained by Mey-Groundwald - Giensa method - Fade gradually and after six to seven months the tinctorial characteristic - making recognition/interpretation of the Cells difficult. The opinion given by Dr. Sudipta Roy by way of affidavit upon review of all the reports has not been controverted by the petitioner by producing any counter affidavit of any expert. We are in possession of no material to discard the opinion of Dr. Sudipta Roy. It is of course true that the patient is still surviving. In our view the Surgeon was responsible for taking hasty decision in operating the left lung of the petitioner. He should have been sanguine about the existence of Carcinoma before undertaking the operation. Dr. N.C. Paul has not given any final diagnosis in the matter. In view of the facts and circumstances of the case it is difficult to hold that the report submitted by the O.P. is faulty. So we cannot hold the O.P. guilty of deficiency in service. In our opinion the allegations of the petitioner have not been substantiated. So the petitioner cannot succeed."

In view of the aforesaid we find that the case is without any merit and it is accordingly dismissed. Mr. D. Karforma, Member-This is not exactly a dissenting order inasmuch as I am in agreement with the final conclusion of the order passed by the learned President that the petitioner has failed to conclusively prove her allegation against the O.P. regarding negligence. However, having said that I would like to make the following observations which, according to me, are relevant. 2. The facts of the case have been discussed in detail in the main order and hence are not being repeated here. The main point in the objection filed by Dr. N.C. Paul on behalf of the O.P. is that the Histopathological examination carried out by the Calcutta Medical Research Institute (C.M.R.I.) after the operation used a slide that relates to an area outside the three centimetre area of lesion for which Dr. Paul submitted his report. This contention of the O.P. is supported by the affidavit on evidence filed by Dr. Sudipto Roy wherein it has been stated that the sampling of Nightangle and CMRI are from different anatomical sites of the lung and hence it is possible that the interpretations are different. I have got some reservation about the above contention of the O.P. and the supportive opinion given by Dr. Sudipto Roy. It may be noted that in his report of CT-guided FNAC, Dr. Paul diagnosed as small cell carcinoma of lung (SCLC). Primarily, on the basis of this report the complainant''s surgery was done by Dr. Saibal Gupta at CMRI and after the surgery, Dr. D.K. Mitra of CMRI carried out histo-pathological examination of the Lobectomy specimen. From the report of Dr. Mitra it is seen that representative sections were taken for the examination and the conclusion was that there is no evidence of malignancy in the sections examined. It may also be noted that in the certificate issued by the CMRI on 27.7.1994 it has been stated that the complainant was admitted for the treatment of non-Caseating Granuloma left upper lobe of lung and there is no mention at all of small cell carcinoma of lung. 3. If we assume that both the reports prepared by Dr. Paul and Dr. Mitra are correct, it has to be concluded that Dr. Mitra examined the sections which were taken from an area other than that in which the lesion was detected by Dr. Paul. I may repeat here that Dr. Saibal Gupta carried out the surgery on the basis of C.T. Scan report followed by FNAC report prepared by the O.P. Therefore, it is quite reasonable to assume that the particular antomical site which was removed by surgery was the same as the site identified to have been affected by the O.P. From this removed portion of the lung representative sections were examined by Dr. Mitra and there was no evidence of malignancy. In view of the above, it is difficult to reconcile the two reports viz. the report by Dr. Paul and the report by Dr. Mitra. However, admittedly the complainant has not filed any expert opinion to controvert the views expressed by Dr. Sudipto Roy. 4. Extracts from two books of pathology have been produced at the time of hearing. From the book "Basic Pathology" it is found that "SCLCs are rapidly growing lesions that tend to infiltrate widely and disseminate early in their course". If this is accepted to be correct, and if we assume that Dr. Paul''s report also is correct, then it is to be inferred that by the time surgery was undertaken, the SCLC would have spread widely and in that case it is rather surprising that Dr. Mitra after examinating the representative sections of the portion removed found no evidence of malignancy. 5. From the other book viz. "Anderson''s Pathology" it is found that "small cell carcinoma is highly malignant and almost invariably has metastasized by the time of diagnosis. Median survival is only four months and 5-year survival with surgery is a dismal 1%". This view is in consonance with the views quoted above from the book "Basic Pathology". It is important to note that median value for the period of survival (i.e. the average period of survival) is only 4 months and 5-years survival with surgery is only 1%. In the present case the petitioner is still alive though the O.P. diagnosed small cell carcinoma lung as early as in 1994 and the surgery was also done in 1994 and a period of almost 10 years has since elapsed. This, according to me, is suggestive of the incorrectness of the diagnosis of the O.P. However, it will be appropriate to note here that the views of Dr. Sudipto Roy that small cell carcinoma can remain localised to a small anatomical region of the lung somewhat contradict the observations made in the books on Pathology as quoted above. 6. According to me, for proper adjudication of the matter certain steps were required to be taken by the complainant. Firstly, the Surgeon Dr. Saibal Gupta was perhaps made a proforma O.P. and he did not appear for the hearing. Needless to emphasise, the version of the Surgeon who carried out the surgery is of great importance in the adjudication of the present matter. Secondly, Dr. D.K. Mitra of CMRI also was not made a party nor did he file any evidence on affidavit. Obviously, such evidence of Dr. Mitra is of critical importance for proper adjudication of the matter. Thirdly, as already stated, the petitioner did not file any expert opinion to controvert the opinion expressed by Dr. Sudipto Roy. I tend to agree with the contention of the O.P. that the present case is a highly technical one and requires extensive evidence by experts. In view of this and also on the basis of the above discussions I think that the Civil Court is the appropriate Forum for adjudication of this case. Agreeing with the views expressed in the main order that the allegations of the petitioner have not been conclusively substantiated, the petitioner cannot succeed in my opinion. Hence, the complaint petition fails but liberty is given to the petitioner to approach the Civil Court for proper adjudication of the matter, making all concerned parties to the proceeding and on the basis of detailed records and evidence of experts in the field. The delay in approaching the Civil Court on account of the proceeding before this Commission will be considered for condonation on a representation being made by the petitioner to that effect, under Section 14 of the Limitation Act. Complaint dismissed.