SALEEMUDDIN vs SUNIL MALHOTRA

THESE two appeals arise from a common order passed by the State Commission. Complaint had been filed by Mr. Saleemuddin and others (appellant in FA No. 458/1996) against Dr. Sunil Malhotra (appellant in F.A. No. 96/1997), alleging medical negligence on the part of respondent Dr. Sunil Malhotra.

VERY briefly, the facts of the case are that according to the complainant, the patient Alauddin had tumour in his right axilla with supra clavicular lymph modula at right side for which he was examined at Citi Lab, and cytology report dated 27.5.1993 was issued which showed ''FNAC of axillary lymph nodes'' was carried out and patient was advised biopsy to ascertain the nature of the lump. After going round to PGI on the advice of a friend, the deceased/complainant met the opposite party Dr. Sunil Malhotra on 18th, 20th and 21st June, 1993. After carrying out preliminary tests, it is alleged that the opposite party Dr. Sunil Malhotra removed the axillary tumour 10" X 8" size plus supraclavicular lymh nodes by an incomplete operation under G.A. condition and sent the complete tumour with adherent skin to the Laboratory for biopsy. Report was received and it was found to be a case of "Non Hodgkin''s Lymphoma, Diffuse, Histiocytic High Grade, i.e., fast spreading cancer". This report was received on 26.6.1993. The patient was discharged the next day. The patient visited as an out-patient again on 1st July, wherein he was advised to contact the Oncology Department of AIIMS, New Delhi. Requisite reference was also made. He remained under treatment of AIIMS for almost 6 months but, unfortunately, the patient died on 20.12.1993. It is in these circumstances, a complaint alleging medical negligence was filed initially with the District Forum, Bijnor, which was returned for filing before the Forum having the jurisdiction, hence it was filed before the State Commission of Haryana, Chandigarh, alleging medical negligence, but by increasing the number of complainants from 1 to 11 and also increasing substantially the claim amount. The main plank of the allegation of medical negligence in the complaint related to the factum that it was complete removal of the lump and not a biopsy. The operation was left incomplete resulting in ultimate death of the deceased. It is in these circumstances, alleging medical negligence a complaint was filed before the State Commission, who after hearing the parties including the cross-examination of parties as also perusal of medical literature brought on record, dismissed the complaint as they did not find this case to be a case of medical negligence. Aggrieved by this order, both the parties have filed two separate appeals before us. We heard the learned Counsel for both the parties at some length. First Appeal No. 458/1996

It is the case of the complainant that if one was to see the discharge card issued by ''Malhotra Hospital and Maternity Home'' owned by Dr. Sunil Malhotra, it was clear that what was carried out was a surgery and it was not a case of biopsy. The discharge card reads as follows: "Operation if any - under GA condition Excision bio of Rt. Axillary mass with Adherent skin on 23.6.1993."

THIS particular line has been made the basis of alleged medical negligence for which learned Counsel for the petition relies upon medical literature, namely, "Christopher''s Textbook of Surgery" 9th Edition, wherein the word biopsy has been described as under: "Biopsies-The procedure for obtaining sufficient tissue for a pathological diagnosis is not complicated. First, a biopsy should always be obtained if doubt exists concerning the nature of a lesion; second, a biopsy should be obtained before beginning any therapy even if there is no doubt as to the nature of the lesion..."

He also relies upon the ''Lymph Node -Biopsy'' Procedure, I (f) of this literature reads as under:- "In cases of suspected lymphoid processes, and facilities are available place a 2 x 2 x 1 cm piece for a piece or large as possible of fresh tissue in a Petri dish containing a paper filter wet with saline solution and submit for evaluation of cell surface markers (see instruction for cell surface markers - Sampling)."

(Emphasis Supplied)

IT is his case that as per the report of Pathologist "Dutta Pathology Laboratory'' large soft white mass about 9 cm diameter was removed which should mean that it was a case of removal of lump and not a case of biopsy. In fact, biopsy was not carried out; what was carried out by the respondent Doctor was a surgery and that too incomplete one, resulting in the death of the deceased. We have very carefully gone through the material brought on record and have also gone through the literature produced by the complainant. There is no controversy whatsoever that in order to ascertain the nature of the lump, it is necessary to carry out a biopsy, hence the text relied upon by the complainant side in "Christopher''s Textbook of Surgery" 9th Edition, is not in dispute. We are, however, unable to appreciate the point raised by the learned Counsel for the appellant, that the size of the material taken out from the deceased should be construed to mean that it is not for biopsy, it would only mean that it was a case of surgery and not a biopsy. The lymph Node Biopsy procedure extracted from Ackerman''s Surgical Pathology, which we reproduced clearly state that normally, the piece taken out No. 2 X 2 X 1 cm, but it clearly also states "a piece as large as possible". Hence, in view of the medical literature brought on record, we cannot jump at the conclusion that 9cm diameter piece would not fall in the definition of a piece extracted for biopsy. Medical literature produced by the complainant does not support the appellant/complainant at all. In fact, the respondent is supported by the entry made by AIIMS dated 5.7.1993 wherein it is clearly stated, "Biopsy done outside". In these circumstances, and more so especially when there is no expert evidence led to the contrary, we are in no position to agree with the appellant that this was not a case of biopsy. As per law laid down by the Hon''ble Supreme Court in catena of judgements that the cases of medical negligence fall in a category of its own and they need to be proved with the help of expert opinion. In the instant case, Medical literature as also the subsequent recording by AIIMS, referred to earlier above clearly goes on to show that whatever was done was ''biopsy'' and not complete surgery. The contention of the appellant is further weakened by the two observations/entries which we see in the cross-examination carried out by the State Commission. It was stated by the appellant, who is Advocate by profession, that "After the death of my father the entire file was destroyed by burning the same. It is fact that the top portions of these cards were torn out by my real brother Mr. Raisuddin after the death of my father. These torn portions of cards are no longer available..." and goes on to further state "My father Alauddin remained under treatment of All India Institute of Medical Science, New Delhi for six months and then he expired. It was during these days only that I was told by somebody that probably the patient should not have been operated...", Cases are not proved by uncertain evidence and in the realms of probability. This statement is recorded in September, 1995. As per his cross-examination who was the ''somebody'' who told him of ''probably'' the patient should not have been operated...?" is not on record - nor has been produced for examination. There is not even an iota of evidence brought in any form proving the case of medical negligence on the part of the opposite party/respondent. Evidence, if any, is to the contrary.

IN view of above, we see no merit in this Appeal, hence dismissed. First Appeal No. 96/1997

THIS appeal has been filed by Dr. Sunil Malhotra, opposite party in the complaint before the State Commission and also the respondent in First Appeal No. 458 of 1996. The prayer in his appeal is for grant of exemplary cost and compensation of Rs. 5,00,000 for filing a frivolous and vexatious complaint against him. If we see the conduct of the complainant/appellant, it leaves much to be desired. The complaint was filed before the District Forum, where they initially stated that the complainant had spoken to the Doctor on phone. It was found to be untrue as per order of the District Forum, who examined the record of the Public Call Office from where the call was alleged to have been made. We further see that record has been tampered with, destroyed partly, holes made in some of the documents produced. Despite this, we take not of the fact that the complainants had lost their elder male member in the family and there is a bereavement for whatever reasons, yet it cannot be said that the complaint was frivolous and vexatious.

In view of above, we refrain from imposing cost for filing a complaint.

IN view of the above both the appeals are dismissed. Appeals dismissed.