S.KISHAN RAO vs SUDHA NURSING HOME

THE first complainant is the husband, while the complainants 2 to 5 are the children of late Kamalamma and first complainant.

LATE Kamalamma hereinafter called ''the deceased'' complained of chest pain and she was taken to the first opposite party nursing home belonging to the opposite parties 2 and 3 on 7.7.1991. After initial diagnosis by the opposite parties 2 and 3 who are wife and husband respectively on 9.7.1991 the disease is diagnosed by them as "Benign Cystic of Breast". Both the doctors have advised her to undergo an operation and assured early recovery. Accordingly on 9.7.1991 her right breast was operated after procuring report of the pathologist Dr. B. Narayan Rao. After treating her for about one week in their hospital they have discharged her assuring that everything would be normal. However to the utter surprise of the complainants the deceased developed a lump in about 5 to 6 months in the right breast again on account of the defective operation conducted by the opposite parties 2 and 3 on 9.7.1991. After conducting investigations they advised her to undergo second operation after procuring the report dated 5.1.1992 of pathologist Dr. B. Narayan Rao. In good faith the first complainant and the deceased have consented for the same and accordingly the second operation of the right breast of the deceased was conducted on 5.1.1992 removing the lump and gave further treatment. But soon thereafter another lump developed in the same breast by the third week of January, 1992. When consulted the opposite parties gave further treatment but finally referred the patient to Dr. Krishna Kumar on 28.1.1992 requesting him to take up the case for Radio Therapy. As the general condition of the deceased was deteriorating day by day on account of the negligent and inefficient treatment of the opposite parties 2 and 3 the complainants suspected that they have suppressed the real facts. When the patient was taken to Dr. S. Chandra Sekhar Rao during the first week of March, 1992 she was referred to Dr. Pratap Reddy of Bi Bi General Hospital and Cancer Centre, Malakpet where she was admitted on 8.3.1992 under critical condition and two days latter i.e., on 11.3.1992 she breathed her last.

The specialist doctors at the Bi Bi General Hospital and Cancer Centre have opined that the deceased was a cancer patient and a General Surgeon or an Obstetrician and Gynaecologist like the opposite parties 2 and 3 were incompetent to perform operations on breast cancer patients twice within a period of six months. They ought to have advised the deceased to consult a cancer specialist for treatment right from the initial stages instead of wasting precious time and unnecessarily embarking upon dangerous and adventurous operation by opening the right breast of the patient without having proper medical knowledge and paraphernalia and infrastructure in the required field of treatment. Consequently the patient met with untimely death. Therefore, they filed the complaint claiming a sum of Rs. 5 lakhs towards the expenses incurred by them during the treatment of the patient.

THE opposite parties 1 to 3 filed a common counter stating that the deceased was brought to the hospital in question on 7.7.1991 by her husband the first complainant by which time she was suffering with massive swelling in the right breast measuring 15 x 10 cms. size which means whole breast was involved in the disease. Since it was a swelling without any skin changes the opposite parties were of the view that this was a case of "Cysto Sarcoma Phylloides". In view of the size of the lump and as it was of destroying nature and because of the potential nature of the tumor of simple mastectomy was performed which is universally accepted. This condition occurring often in the middle aged woman is called as ''Giant Fibro Adenoma''. About 20 per cent of these tumors are malignant. THE re-excision of local recurrence is advised as radio therapy is not generally effective. In view of the known authorities simple mastectomy is an adequate procedure for both benign and malignant forms. THE third opposite party after operation had sent the specimen for Histopathology to Dr. B. Narayana Rao, Professor of Pathology who has reported that the breast was "fibro sarcoma with cysto phylloids". It is very clear from the above reports that by the time the patient came to the hospital it has already turned into malignant nature. THE facts were clearly made known to the first complainant and he was also alerted that it will re-occur again and as such he was advised to take her to cancer hospital. But the first complainant insisted them to treat her in their hospital as he cannot have better treatment in the Government Hospital and he cannot bear the expenditure elsewhere. THE patient was again brought to the hospital by the first complainant on 2.1.1992 for second operation since lump has reoccurred again. THEn the opposite party doctor has refused to entertain the case since it is a clear case of malignant nature and it should be treated either in Government Hospital or elsewhere. THE doctor was very much reluctant to conduct the operation but the first complainant has requested him to conduct immediate operation so that her life can be saved for certain period as he could not bear the enormous expenditure involved in the operation if done elsewhere. Due to humanitarian consideration the opposite party No. 3 has obliged to conduct the operation to save her life. Having regard to the experience it cannot be said that the general surgeon of such experience and qualification cannot perform this type of surgery. THE opposite party No. 1 hospital has got required know-how, infrastructure and facilities for rendering treatment to this type of cases also. THE relatives and husband of the deceased were made known that the death was imperative and certain but can be only prolonged for one or two years. It is evident from the records that the patient was treated in Bi Bi General Hospital and Cancer Centre from 30.1.1992 till her death on 8.3.1992 and it was diagnosed by them that she developed multiple secondary cancer deposits in the lungs at the time of her death and they did not find them at the time of her admission on 30.1.1992. THErefore, the secondary stage has spread during the treatment in the cancer hospital and not prior to that. In spite of radio therapy in the cancer hospital the patient has developed secondaries. THErefore, it is clear that the radio therapy cannot be effective in such cases. THE patient was brought to the opposite party No. 1 hospital at an advanced stage as the size of the lump is a clear indication to that effect. As the opposite parties 2 and 3 have stated in their counter that they have the insurance cover in case of negligence or deficiency the fourth opposite party Insurance Company was also impleaded as a party.

THE first complainant was examined as P.W. 1 and Exs. A-1 to A-41 were marked. THE opposite parties 2 and 3 were examined as R.Ws. 2 and 1 respectively and Dr. K.M. Lakshmana Rao was examined as R.W. 3. Exs. B-1 to B-3 were marked for the opposite parties. The point for consideration is whether there is any negligence on the part of the opposite parties, and if so, to what relief ? Both parties have tried to support their respective pleas as per their pleadings. P.W. 1 states that the deceased was taken to the first opposite party hospital in July, 1991 as she complained that her right breast was slightly swollen. He also says that no tests were conducted by the hospital before she was operated upon. However sample was sent to Dr. Narayan Rao after operation was conducted. That late Kamalamma was admitted in the first opposite party hospital and she was operated on her right breast on 9.7.1991 is not in dispute. Exs. A-1 and A-2 are ECG reports dated 6.7.1991. Exs. A-3 and A-4 are cash receipts. Ex. A-5 is Histopathology report dated 9.7.1991 issued by Dr. B. Narayan Rao wherein he concluded that the "Breast : Fibro sarcoma with cysto sarcoma phyllods". Therefore, it is clear that the test report shows that the tumor is of malignant nature. It is also not the case of the opposite parties 2 and 3 that they have conducted any kind of test before they could decide open surgery. R.W. 3 in his evidence states that Sarcoma means ''cancer''. This witness is examined by the opposite parties. He concedes that before proceeding to operate any tumor the surgeon should obtain a biopsy report which may be in the form of open biopsy, drill biopsy, fine needle aspiration biopsy or large bore needle biopsy. Admittedly no such biopsy report was obtained before late Kamalamma was operated on 9.7.1991 which in our view is a deficiency on the part of the opposite parties 2 and 3.

LATE Kamalamma was again taken to the first opposite party hospital in January, 1992 within six months after the first operation. Ex. A-12 is the Histopathology report dated 5.1.1992 of Dr. B. Narayan Rao. In this report it is clearly stated as follows : "Microscopic examination : Sections show neoplastic tissue composed of plump spindly cells arranged in bundles and whorls. They show features of malignancy with wide areas of necrosis. Areas of calcification and osseous metaplasia are seen. Remanents of breast tissue with cysts, striated muscles are seen. Appearance is that of fibro sarcoma."

Therefore, it is clear that features of malignancy are noticed in this report on 5.1.1992. It is also not disputed that she was again operated on 5.1.1992 and thereafter this pathology report was obtained. Here again we are of the view that without even conducting any biopsy but proceeding with surgery the opposite party No. 3 has exhibited over anxiety to perform surgery. As seen from Ex. A-5 report the conclusion of pathologist is ''Fibro sarcoma with cysto sarcoma phyllods''. It is unimaginable how they could go for second operation in the face of Ex. A-5 report dated 9.7.1991. But by then first operation was already conducted and, therefore, whether surgery was advisable or not it has become irreversible. But so far as the surgery on 5.1.1992 without even conducting any biopsy test the third opposite party has hastened for surgery. No doubt he says that he has been advising the first complainant to take her to a cancer hospital, but it is the latter that was insisting upon treatment at the hands of the third opposite party. Therefore, the question is whether there is any truth in this version.

EITHER in the counter filed by opposite parties 1 to 3 or in the evidence of R.Ws. 1 and 2 it is not stated that any biopsy test was conducted before resorting to first surgery on 9.7.1991. But what is curious is, it is stated in the counter filed by the opposite parties 1 to 3 that after obtaining the report Ex. A-5 which shows that the breast was ''fibro sarcoma with cysto sarcoma phyllods'' and as such it is very clear from the above that by the time the patient came to the hospital it is already turned into malignant nature. It is further stated that the first complainant was clearly made known about this and that it will re-occur and he was also advised to take her to cancer hospital. But it is the first complainant that insisted treatment in the hands of the third opposite party as he cannot get better treatment in Government Hospital and that he cannot incur or bear the expenditure involved in this type of treatment and so he obliged. It was also stated in the counter affidavit that the patient was again brought to the hospital on 2.1.1992 as the lump has reoccurred in the same breast. It is his version that he has initially resisted to entertain this case since it is a clear case of malignant nature and should be treated either in Government Hospital or elsewhere. But as the condition of the patient was very much deteriorating the first complainant has beseeched him to entertain the patient and perform the operation on the same ground that he could not bear the expenditure involved in the treatment elsewhere. Out of humanitarian considerations the third opposite party has obliged to conduct the operation to save her life. This explanation is too hard for us to swallow. The first complainant has denied this story. We are of the view that the first complainant would not have insisted if he was told that the life of his wife was in danger. No written consent was obtained to show that it is the first complainant alone that was persisted to have the treatment in the hands of the second opposite party. Nobody would opt for treatment which is of no use knowingly. As already seen the third opposite party has come to know from the report Ex. A-5 that by the time late Kamalamma came to his hospital it has already turned into malignant nature i.e., on 9.7.1991. Even then there is no proof adduced by him to show that he has ever advised her to take treatment in any cancer hospital. Admittedly by then several cancer hospitals are working in twin cities either run by government or by private managements. In the absence of any proof that he was advised late Kamalamma to undergo treatment in any cancer institute after the first operation was conducted by him is again a deficiency on his part.

What is more, is conducting second operation on 5.1.1992. As we have already stated that the explanation given by the third opposite party that it was only at the insistence of the first complainant that he was entertaining the patient for surgery on compassionate grounds is not convincing and we have no hesitation to hold that conducting second operation on 5.1.1992 again without directing her to go to cancer hospital is certainly a deficiency on his part. At one breath he says in the counter that he has advised the first complainant to admit late Kamalamma in cancer hospital, states in another breath that though he was general surgeon he has the necessary experience and qualification to conduct surgery of this nature and his hospital has got required know-how, infrastructure and facilities in rendering treatment to this type of cases also. But there is no proof as to what type of know-how, infrastructure and facilities are available in his hospital for doing surgery for this type of cases. If really there is such full-fledged infrastructure one would fail to understand why he has suggested to the first complainant to take her to cancer hospital. These inconsistent and prevaricating versions are made only to cover up the laches on the part of the third opposite party. Even as early as on 9.7.1991 according to his counter the third opposite party has opined that the disease which has turned malignant may spread into lungs, bones or other parts of the body. He also admits in the counter that the size of the lump noticed when the patient was brought to the hospital for obtaining the treatment for the first time clearly shows that the patient was brought to the hospital at an advanced stage and this statement when read with the statement noticed earlier that it has already turned into malignant nature even by 9.7.1991 should have deterred the third opposite party from proceeding with the second surgery but refer the patient to cancer hospital. This failure on his part is a serious lapse and undoubtedly a deficiency on his part. Without advising any test to know whether secondaries have developed, to conduct second operation at that stage is deficiency, more so when the lump has reoccurred. He on his own showing knows that it would reoccur even if it is operated as it happened. Hence this surgery is not only unjustified but ill-advised. Hence it is a case of proven negligence. The duty of a doctor includes observation of every precaution which is common in the course of treatment he gives. Negligence is concomitant when he fails to take all factors into account. Advising survey is not the end of his duty. Comprehension of normal consequences of his action is also his duty. Viewed from any angle negligence is writ large at every stage on the part of third opposite party.

THE next question is whether the opposite parties 1 and 2 are also equally responsible along with the third opposite party. In the complaint it is stated that the opposite parties 2 and 3 advised late Kamalamma to undergo surgery. Further it is stated that the opposite parties have advised her to undergo second operation on 5.1.1992. Further it is stated that when another lump developed in the same breast by third week of January, 1992 the opposite parties gave further treatment and finally referred the patient to Dr. Krishna Kumar on 28.1.1992 requesting him to take over the case for radio therapy. Therefore, there is specific allegation throughout the complaint that the advice was given by opposite parties 2 and 3 who own the first opposite party nursing home.

COMMON counter was filed by all the opposite parties signed by opposite parties 2 and 3. Nowhere it is denied that the second opposite party or the first opposite party has nothing to do with the treatment or medical advice given to the complainant. Inasmuch as the opposite parties 1 and 2 never claimed disassociation with the treatment or operations conducted by the third opposite party, in our view they are also jointly and severally liable for negligence along with the third opposite party. The next question is what is the quantum of damages the complainants are entitled to. It is stated in the complaint that late Kamalamma was aged about 45 years at the time of her death. She would have easily survived till she attains 65 years. No doubt she is not the earning member in the family. But at the same time the complainants who are husband and children of late Kamalamma have lost her love, affection, consortium and companionship. As the complainants 3 to 5 are unmarried children of Kamalamma they are deprived of her assistance and care till they reach the marriageable ages. Besides late Kamalamma must be running the house looking after the comforts of her children and her husband and the complainants have lost the said assistance and care. As such we are of the opinion that they are entitled to a sum of Rs. 1,00,000/- towards compensation under this count.

THE complainants state that they have spent a sum of Rs. 50,000/- towards the expenditure incurred by them towards the treatment of late Kamalamma including a sum of Rs. 30,000/- charged by the opposite parties for both the operations including incidental expenditure like hospital charges, medicines etc. We do not think that there is any exaggeration in their claim of Rs. 50,000/- since late Kamalamma had been taken to Bi Bi Cancer Hospital and also other hospitals for conducting several tests. Having regard to this we are of the opinion that the claim for a sum of Rs. 50,000/- towards the expenditure is not unreasonable. Accordingly this sum is also awarded. In all the complainants are entitled to a sum of Rs. 1,50,000/- from the opposite parties. In the result, the opposite parties are directed to pay a sum of Rs. 1,50,000/- to the complainants with interest @ 12% from the date of filing of the complaint till the date of payment. THE complaint is accordingly allowed in part to the extent indicated above with costs of Rs. 5,000/-. Six weeks'' time is granted for payment. Complaint partly allowed with costs.