S.K.SHARMA vs P.B. DESAI

THIS complaint has been filed by Mr. S.K. Sharma, the husband of deceased Dr. Alka Sharma, against Dr. Praful Desai alleging medical negligence in treating his wife for breast cancer. The brief facts of the case are as follows : 1. Dr. Alka Sharma was 42 years old and a Gynaecologist by profession. On the advise of Dr. R. Soonawala, she had mammography done in April, 1994 and was suggested to see Dr. Praful Desai, who is the opposite party in the present case and she met opposite party Dr. Desai on 11.8.1994. She met Dr. Desai who is Cancer Specialist/Surgeon, who was at that time in the employment as the Director of Tata Memorial Hospital. Since that time, she was treated by a group of doctors in Tata Memorial Hospital under Dr. Desai''s supervision till her death on 4.3.1996.

COMPLAINANT Mr. S.K. Sharma states that on 11.3.1994, when Mrs. Sharma was first seen by Dr. Desai''s Assistant Dr. Patel, his notes on clinical examination showed large tumor on the right breast with the axillary mode on the right axilla and one more on the left axilla. It is the case of the complainant that opposite party examined only the patient''s right breast and advised aggressive treatment without checking or mentioning anything about left breast or left axilla or left neck node. It is further his case that opposite party did not get mammography of both breasts to ascertain the extent of cancer. He ignored to even clinically check the left breast to assess the extent of damage. On 11.8.1994, opposite party advised chemotheraphy and radiotheraphy after biopsy and accordingly Dr. Gopal gave these cycles of chemotheraphy. Opposite party once again examined only her right breast and mentioned 75% regression and advised one more cycle of chemotheraphy to be followed by radiotheraphy. COMPLAINANT stated that opposite party completed required number of cycles of chemotheraphy on her on 9.3.1995 and mentioned to her that it is near total dissolution and advised her to come after three months. It is further stated that opposite party on 7.4.1995 saw her and advised needle biopsy of the right breast suspecting residual tumor or recurrence and seeing the positive report of Modified Radical Mastectomy (MRF) done on 24.4.1995. After two weeks of surgery, he noted findings of the histapathological report and removed collected fluid from the right breast. Dr. Dinshaw has seen the patient as a follow up in May, 1995 and found a node in the left axilla and requested in her notes that opposite party should see. Opposite party saw her on 1.6.1995 and removed little fluid from the right breast and did not mention of the node on left axilla.

In June 1995, she went to Houstan and it was declared that she is in advanced stage of cancer of the left breast with axillary node with neck node and recurrence of the right breast. She was given symptomatic relief drugs and after returning to India, she reported this to opposite party. Opposite party asked her to continue the same symptomatic treatment suggested in U.S. and she carried chemotheraphy under the supervision of Dr. Advani. In October, 1995, she again went to U.S.A. and returned in March 1996, as it was declared to be a very terminal case of cancer and she expired on 14.3.1996 in Bombay.

IT is complainants'' contention that though in the beginning, the disease on the left side was mentioned by his own Assistant Doctor Patel, opposite party ignored and also later when Dr. Dinshaw mentioned of the disease on the left side, the same attitude was shown by opposite party. Had he done the preliminary examination of the left breast and not rely on four months old mammography, nodes on the left axilla would have been treated. He further contended that at initial stage he should have done surgery on both breasts instead of waiting to do chemotheraphy, radiotheraphy and the right masectomy. By that time, the disease had progressed to a termical stage causing death. He submitted that irreparable loss and injury of motherly love and affection for the children who are aged 4 years and 16 years at that time. He further claimed loss of companionship and consortium in the death of his wife. He further added that his wife being a practising Gynaecologist, would have earned income during her life time and mentioned that though he is entitled to claim much more, he is restricting his claim to Rs. 20,00,000/- (Twenty lakhs) which is within the pecuniary jurisdiction of the Commission. The complainant''s Counsel Mrs. Lambay added that the complainant claimed and received the reimbursement of medical expenses Rs. 61,023/- which he is eligible to as the complainant is the Commissioner of Income Tax, Government of India. Mrs. Lambay further added that opposite parties being in the employment of Tata Memorial Hospital also falls in the category of Govt. servant. This was stated to reiterate that her client is a consumer and it was not free service rendered by opposite party as remuneration was paid to hospital which has employed him at that relevant time. She cited Indian Medical Association v. V.P. Shah & Ors., wherein Supreme Court held that "Adverting to the individual doctors employed and serving in the hospitals, we are of the view that such doctors working in the hospitals/nursing homes/dispensaries, whether government or private belonging to categories (ii) and (iii) above would be covered by the definition of ''service'' under the Act and as such are answerable to the provisions of the Act alongwith the management of the hospital etc. jointly and severally". (1995).

THE learned Advocate for the complainant referred to opposite party''s Article under the topic "THE Importance of Local Control in Breast Cancer" in which the author has discussed successful treatment for long-term cure and writes ''Despite all the advances in chemotheraphy, the role of appropriate initial surgery and radiotheraphy, when indicated, continue to be the crucial factors in achieving a long-term local control which is the first pre-requisition or a cure of breast cancer. Indeed local control may not result in a cure, but there can be no cures without the local control''. THE Article discusses that instead of choosing the right method to control cure breast cancer is modified medical masectomy, simple masectomy or lumpectomy with axillary dissuction for a given clinical setting, Surgeons take shelter of the radiotheraphy and chemotheraphy umbrella to control the disease. Relying on the above discussions by opposite parties, the learned Counsel for the complainant argued that opposite party did not rely on practice what he preached and that the blame solely rests on him for not doing radical masectomy in the initial stage followed with chemotheraphy. This important omission by opposite party has caused lost her life and also the stage of the disease was T4 NI MI according to Dr. Patel''s findings and not T4 NI Mo as treated by opposite party as the treatment would be different in each of these stages. The main contention of the complainant through the well argued long session bring down to the noting of Dr. Patel on 11.8.1994 on the left axilla which was mandatory on the part of opposite party to take biopsy of it before deciding the treatment of the right breast malignancy even if it is only a fatty nodule. The learned Counsel reiterated that the same node on the axilla spread the disease in the body and being untreated at the earliest time by surgery. She relied on medical text references in "Clinical Oncology 1973" where it is stated "the examination must be completed by thorough inspection of the axill and supraclavinar regions and of the other breast and axilla". It is further noted in "Society of Surgical Oncology 1979" that small size cancers and fatty occult cancers were detected more by mammography which were not evident by physical examination. The same theory is also advocated in ''Principle of Surgery'' that biopsy provides definite confirmation unlike other methods in early diagnosis and mammogram is most accurate in large fatty breasts. In article ''Pre-treatment evaluation'' in screening for breast cancer taken from ''cancer of the breast'', it is recommended to take bilateral mammograms to detect any ocult lesion that should be biopsised which improves the pre-operative diagnostic accuracy. The learned Advocate also brought on record the letter addressed to Mr. Raghunath by opposite party in another case which is to be heard by this Commission in February, 2000. Where he suggested the treatment of choice to control cancer is to remove the diseased part surgically. The Counsel also mentioned that the complainant preferred to club the above complaint alongwith the present one for hearing together since both are against the same opposite party. It is also argued that opposite party has been contradicting himself from what he writes in articles and his letter to Mr. Raghunath. It is also their contention that the case filed with the Maharashtra Medical Council, where charges are framed against opposite party would have a direct hearing in this case. She also prayed that Mr. Raghunath''s case and any further medical evidence of a specialist could be obtained on this case could be clubbed together for hearing. Claiming Rs. 20,00,000/- as compensation, the learned Counsel and the complainant argued the matter exhaustively.

THE opposite party and his learned Counsel Dr. Dhananjay Chandrachud, had presented the following arguments and denied any negligence of deficiency of service alleged by the complainant. Firstly, he reiterated that the services rendered to the complainant''s wife were purely to a professional colleague without any consideration or remuneration whatsoever for many consultations, treatment planning, surgery, post-surgical care that was involved during the said period. Admittedly the complainant does not make any grievance against Tata Memorial Hospital for the treatment though the entire treatment was done in the hospital and singled out only one opposite party. Treatment of cancer is a complementary and joint effort of many specialists who are nationally and internationally known and acknowledged for high repute in their speciality. All discussions were discussed together taking everyone''s view on the matter and the time of treatment is shorted out after a thorough diagnosis of the patient. Opposite party''s Counsel stated that the complainant has not filed the complaint neither against the hospital nor the Head of Chemotheraphy, Dr. Dinshaw or the Head of Ragiology, Dr. Gopal who also treated the patient. It was contended further that there were no evidence from any doctor who treated her in India or abroad to support the allegations made of.

THE main contention of the complainant is that opposite party did not clinically examine the patient for the disease in the left breast and not having treated the left side, the disease spread. He categorically and emphatically argued that no doctor would examine only one breast which is totally false and unfounded allegation. Paired organs are always checked by any doctor, forget the specialists in all over the world, say be it the eyes, ears or whatever, when a problem occurs or seen in one of them. All doctors who are a team of specialists in Tata Memorial Hospital as a normal procedure and routine examined both the breasts which are on the record, accordingly, initially on 11.8.1994 and also on 15.11.1994. In accordance to the usual practice, the junior doctor marking a question is only a query about the nodule on the left side and often nodes and fatty nodules are difficult to distinguish. THE repeat clinical documents on 15.11.1994 by the Junior Radiotheraphist counter signed by Dr. Dinshaw showed the left breast and axilla were totally normal. Opposite party reiterated that at that relevant time on 11.8.1994, it was only a fatty nodule as the documentation made in 15.11.1994 also affirms the same opinion of all the specialists who have diagnosed the case. THEre was no disease on the left side even in 4/95 and hence surgery was on right side. Only in mid May, 1995, nodes developed in left neck and axilla for which chemotheraphy had to be given and that recording has been noted by Dr. Dinshaw on 22.5.1995. THE patient left to U.S.A. where she received chemotheraphy which was to be started in India. Opposite party explained the stages of Cancer i.e., I, Ia, Ib, II, LIa, IIb, IIIa, IIIb and IV which is the last terminal stage. When the patient came to see them, she was in the stage of T4 (III B) which means there was edema of the skin of the breast (including Pean d'' orange). He added that "N" stands for lymph node involvements and N1 for metastalis (spread) to ipsilatral (same) axillary nodes. Opposite party reiterated that the patient Mrs. Sharma was in stage IIIB which is T4 N tumor, which is an advanced and inoperable stage. Ex. ''A'' attached to Sur-rejoinder by opposite party is a copy of the American Joint Committee classification (of Stages of breast cancer) which explains the stages of breast cancer.

Opposite party referred to the report of the Mammogram taken on 23.4.1994 submitted to Maharashtra Medical Council is a Bilateral Mammograms in which it is clearly opined "the left breast appears normal". The learned Counsel for the opposite party argued that this amounts to non-disclosure and suppression of facts which goes to the root of the matter. This report was not disclosed to the Commission and the complainant has wilfully suppressed the contents of the report and also made a factual averment in the complaint as ''in April, 1994, Mammogram of only the right breast was done and that did not show cancer'' and further that "Mammogram of the left breast was never done at any stage of the treatment" is patently a false statement and proves that the complainant has suppressed relevant and material facts to the Commission and thus misleading with part information and by not disclosing the crucial document.

OPPOSITE party submitted that it is a fact that the left breast of the patient had a fatty nodule and not a node which indicated that it did not require any treatment. He reiterated that even if it was a node and the stage of Cancer T4 N.M. (as per Dr. Patil''s noting) and not T4 NIMO, the treatment is the same by non-surgical methods to begin with in such a situation and would have not altered. OPPOSITE party categorically denied any negligence or deficiency of service regarding the line of treatment which was administered and that there was no question of diagnosing the left axillary node as malignant seven month''s earlier in August, 1994 when on 15.11.1994 the left axilla was normal. Opposite party in his Sur-rejoinder, gave a summary chart of the aggressive treatment given to the patient in detail and explained to the Commission as to why he was required to give this line of treatment as against the alleged lapses in opposite parties treatment addressed by the complainant and observed it is medically incorrect thinking. Opposite party explained in detail as to reasons why this line of treatment was being given in chemotheraphy which is a systemic (generalised) treatment. Chemotheraphy is a form of treatment directed towards the treatment of the disease, whatever the part of the body that the disease has manifested itself. It is given by intravenous injection and chemotheraphy consists of the administration of a combination of drugs and this time of treatment reaches out to the entire human body and not directed only to that part of the body in which the disease is known to have arisen or spread. Opposite party explained in details, the contraction of chemotheraphy drugs administered consists of (i) Adriamycia, (ii) Endoxan, and (iii) 5 FU, which at the relevant time and even at the present is regarded as a correct line of treatment for breast cancer. In this systemic treatment, the selection and administration of these drugs was monitored by Dr. R. Gopal, a Senior Chemotherapist and Radio theraphy was planned and monitored by Dr. K.A. Dinshaw, Head of Department of Radiotheraphy at Tata Memorial Hospital. Mrs. Sharma has been continuously, intensively and aggressively treated from her first visit on 11.8.1994 for 9 months by experts in surgery, Chemotheraphy and Radiotheraphy through cumulative discussion of all the medical professionals who exercised with professional judgment and ensured a correct line of treatment in accordance with medically accepted principles.

HE further agitated that the complainant''s request to club an unrelated case of patient with cancer of the stomach with his own motivated with mala fide intentions indulging in vilification campaign against opposite party. HE further submitted that such a mala fide request without any basis should be noted as wilful intention to cause prejudice and harassment to him by postponing the hearing of the complaint. In support of his arguments learned Counsel for opposite party cited few cases discussing what is medical negligence and its relevance in the present case. In Whiteman House v. Jorden & Anr., page 650 ''AllELR 1980'' Cord De Nning MR. Observed that it is incorrect to connect suffering damage directly inferring negligence without taking into consideration that it is a high risk case and with all the care being given, it is quite possible that damage could still be caused. In his judgment, he noted ''she should be grateful for all that has been done for her without laying blame on the doctors''. The Counsel explained the extent of hope, care and diligence that has been shown by opposite party during the treatment of Mrs. Sharma in spite of the condition being IIIB stage which is attached with considerable risks. Instead of appreciating the sincere efforts of opposite party, the doctor is being blamed on any and every excuse and charges and such attitude should not be encouraged. Furthering the argument on giving effective treatment to the patient, the learned Counsel quoted from ''Sidaway V. Bethlem Goyal Hospital Governors (Lord Diplock)'' where selection and choice of treatment is the prerogative of the doctor as far as diagnosis and treatment are concerned. Here, in this case a group of specialists have with each others consensus, constantly evaluated the case, and planned the treatment with not just ordinary skill but specialised skill to each of their areas of speciality. As part of the above case, it says about doctor ''advances in the ability to heal resulting from the volume of research, clinical as well as technological will present doctors with alternative treatments to adopt and a choice to select that treatment (it may be one of several) that is in their judgment likely at the time to prove most efficacious or ameliorating to the health of each particular patient, committed on their care''. It has further elaborated on doctors trying modern treatment saying ''The merit of the Bolam test is that the criterion of the duty of care owned by a doctor to his patient is whether he has acted in accordance with a practice accepted by a body of responsible and skilled medical opinion''. In the present case, a team of specialist opined and treated the patient with due care, skill and responsibility, the Counsel argued and prayed that the complaint should be dismissed.

WE have given ample opportunity and time to both the parties to bring their evidences, case laws, expert opinions to support their case. Only after making sure all their efforts were given time, we finally heard at length arguments presented by both learned Counsels, the complainant and the doctor concerned. WE perused all the hospital documents on record, medical text book references and Court case citations and reached the decision following our reasoning as given below :

FIRSTLY, the entire case is made out to be on important doubt that the complainant had that the opposite party did not check the left breast and also that he did not make any noting in the hospital papers to contradict the noting made by Dr. Patil. Had opposite party checked left breast or not ? Was the line of treatment deemed to be wrong treatment or hampered, because left breast was not checked and Dr. Patil''s question on left breast nodule was ignored ? These are the basic questions to be answered in the light of the arguments made out to us. It is not acceptable to us in any form of arguments that opposite party did not check the left breast. Every doctor checks both sides where paired organs are concerned leave alone specialists. Not only opposite party, the team of doctors are not going to single out left breast and ignoring a question put by Dr. Patil, a junior doctor. Tata Memorial Hospital one of the world''s best hospital for cancer treatment is a known fact and all the doctors are highly qualified and specialised in their field and the best in the country. There is no evidence whatsoever to say that these doctors did not check the left breast clinically. It is only because they noted it to be a fatty nodule at that stage, on her first visit on 11.8.1994, they did not proceed on noting it specially on record but quickly acted on to cure the entire disease because she was diagnosed to be already in T4 NI Mo which is an inoperable stage. Further, on 15.11.1994, hospital records still documented that left breast was totally normal.

Bilateral Mammogram was taken on 23.4.1994 by the patient on the advise of Dr. Soonawala which was brought on record by opposite party but not by complainant which was in his possession. This is very objectionable because he not only did not reveal this fact and produced it to us on his own, he categorically stated that left side mammogram has never been taken. This document was filed in Maharashtra Medical Council and that''s how opposite party could get a copy of it to place it in front of us. This is a mala fide accusation by complainant against opposite party and is false without any substance. Besides, as we see none of the specialists, i.e. the Surgeons, Radiologists and Chemotheraphists who are involved in the treatment felt the necessity to do another mammogram, as it would not have altered the intensive and continuous treatment given. The mammogram of April, 1994 was the basis and not doing further investigation after that does not impact or alter the treatment and does not tantamount to negligence according to all of them and we have no reason to disbelieve it.

AS for the treatment, a ''systemic treatment'' was adopted by opposite party and his team of specialists who have filed affidavits to that effect that it was the most appropriate treatment since the patient came in at an inoperable stage of T4 NI. Chemotheraphy was the correct treatment according to the medical texts and the specialists who have concurred with opposite parties entire treatment has been documented and there is no reason for us to believe that the patient was not given due medical care and skill because very aggressive and continuous treatment was given by opposite party and the entire team. We also agree with the judgments cited which have an impact on our thinking in the present case. In Lord Mathen''s Medical Negligence as cited in Philips India v. Kunju Puninn (Vaidya, J.), in AIR 1975 Bombay 306, when doctor exercise reasonable skill and care. If he does so, he will have discharged his duty and cannot be held answerable even if the treatment was untoward results. For the medical man is not an insurer. The same thinking is again reflected in ''Whitehouse V. Jorden & Anr., where they observed we must say, and say firmly that in a professional man, an error of judgment is not negligent. In the present case, such error of judgment has also not been there and opposite party has the consultation with super specialists diagnosed and treated the patient rightly aggressively to the best of his ability and care. There was no error of judgment on the part of the doctor, who has again and again reaffirmed the time of treatment, he has adopted was the correct and the best one and he would not have offered it for any other line of treatment.

WE believe that a state-of-the-art treatment was given by opposite party to the patient as per the medical literature from "Cancer" - "Principles and Practice of Oncology" 4th Ed. 1993 by Devita, Hellman, Rosenberg "where it is said that the biological diversity in locally advanced tumor have incomparable results in different women and that the poor results are seen in radical surgery compared to ''Systemic'' treatment. Same view was presented in opposite parties paper". The importance of local control in "Breast Cancer" that due to unknown biological variables in different women, no phrophecy or control can be predicted in the treatment. It is also observed by Lord Mathen in Philips India v. Kunju Punnim, that thus in order to decide whether negligence is established in any particular case to act or omission or course of conduct complained must be judged not by ideal standards nor in the abstract but against which the treatment in question was given. In the present case, the circumstances of the patient started with a bit of delay in her part to start any treatment and then coming to opposite party at T4 NI stage and expecting to do miracles to be considered. It is first of all surprising to us that Mrs. Sharma, a practising Gynaecologist has on the advice of Dr. Soonawala, taken a bilateral mammogram as early as on 11.4.1994 and as late as on 11.8.1994. She consulted opposite party knowing all the medical consequences of delayed treatment in such disease. If she was unhappy being aware that opposite party did not check the left breast, she could have easily gone to another doctor for second opinion because she has knowledge of the medical implications of the said disease being a medical doctor herself. In view of the affidavits filed by Dr. Dinshaw and Dr. Gopal and the medical records of Tata Memorial Hospital and the arguments advanced, we do not find any negligence or deficiency of service by opposite party Dr. P.B. Desai. It is in a joint consultation of all the specialists that this treatment is persued in the best interest of the patient and the complaint was filed only against one doctor and not against the others or the hospital which almost seems like a personal attack and we cannot appreciate this attitude. The reason for us to believe this is because of the complainant''s request to hear another case of stomach cancer filed against the same opposite party in this Commission together, which is altogether different like stomach cancer and has no relevance to the present case. With these observations, we pass the following order. ORDER "Complaint is dismissed. No order as to cost. Complaint dismissed.