SUSHMA vs G D Goel

THIS complaint has been filed by the wife of the deceased Narender Kumar Rai and their children. By order dated 30.10.2001, Opposite Party Nos. 4 and 5 were deleted from array of parties.

AFTER noticing hard swelling in the tongue. Narender Kumar Rai (hereinafter referred as deceased) consulted 2-3 doctors and ultimately approached Dr. G.D. Goel, Opposite Party No. 1 who advised him to get biopsy done. The deceased was admitted in Maharaja Agar Sain Hospital, New Delhi, Opposite Party No. 2 on 18.3.1999. He was operated upon on 19.3.1999 and was discharged on 26.3.1999 with advice to follow up. On 31.3.1999 the deceased visited Dr. G.D. Goel who informed him that there was nothing to worry as he had removed whole of the nodule. According to the Complainant biopsy report was not given in spite of repeatedly asking for the same. The deceased went for regular follow up and in August, 1999, the deceased developed hardness again in the tongue and the Doctor advised him to get C.T. Scan done. The C.T. Scan disclosed malignancy (Cancer) of the tongue. However, doctor had not informed the said fact to the deceased or his spouse. On 19.8.1999 the deceased was taken to Tata Memorial Hospital, Bombay and later followed up in cancer department of AIIMS Centre. Radiotherapy and Chemotherapy was tried. As the disease (Cancer) was at advance stage, the effect was partial and due to malignant CACHEX1A, he developed pressure over food pipe and wind pipe. Ultimately the deceased expired on 4.4.2000.

ACCORDING to the complainant, if Dr. G.D. Goel had informed of the fact that the deceased was suffering from cancer and the biopsy report was handed over to him, he could have consulted cancer surgeon, radiotherapists and oncologist in time. !t is further submitted that Dr. G.D. Goel did not either give medicine for cancer nor advised the deceased to see cancer specialist. It is further pointed out that the biopsy report was ready on 23.3.1999 but in the discharge slip dated 26.3.1999, it was stated that biopsy report was awaited. In prescription dated 31.3.1999 it was mentioned ulcerated nodule and not cancer. In the discharge slip it was written that the patient was operated for Partial Glossectomy. However, the patient was referred to C.T. Scan in August, 1999. The term used by Doctor was Hemiglossectomy which means cutting half cf tongue. However, the material received in Lab for test was 3 x 2.5 cm mass and not half of tongue. The payments for the treatment were made to Hospital, Opposite Party No. 2. The biopsy report dated 26.3.1999 which was not given to the deceased shows that diagnosis was "KERATINIZING SQUAMOUS CELL CARCINOMA OF TONGUE". According to the complainant, Dr. G.D. Goel was deficient in service and negligent in not disclosing the disease to the deceased and his spouse and not referring the deceased to specialist since Dr. G.D. Goel himself was not cancer specialist. Due to non-disclosure of vital information to the deceased by Dr. G.D. Goel, the cancer, for which proper treatment was not given by Dr. G.D. Goel, had reached at advanced stage when it came to knowledge of deceased after C.T. Scan and efforts made for treatment at Tata Cancer Hospital and AIIMS did not produce effective results.

THE Complainants claimed that the family of the deceased has longevity of life and deceased would have survived at least till the age of 76 years. The deceased was earning Rs. 10,000 per month and compensation of Rs. 30 lacs is claimed towards loss of salary. Besides this, the Complainants seeks Rs. 10 lacs for mental agony as also reimbursement of medical expenses.

THE Opposite Parties have filed written statement of Dr. G.D. Goel Opposite Party No. 1 who has submitted in reply that deceased had history of hard swelling (Nodule) in his tongue for the last two months and on examination it was found to be ulcerated nodule in the tongue which was suspected to be malignant as deceased was smoker as well as alcoholic. He had advised removal of nodule as also biopsy and partial glassectomy was done on 19.3.1999. According to him, as per recognized medical practice in the case of suspected lesion, an excision biopsy is done to remove the diseased portion beyond its visible disease limit. The deceased was to be discharged on 24.3.1999 and the discharge slip was prepared by the duty doctor on the night of 23rd and 24th of March, 1999 and at that time biopsy report was awaited and the said fact was mentioned in the discharge slip. On 24th morning, the relatives were told that as per report, nodule was positive for malignancy test. Upon being informed of the same, the deceased''s relatives requested for keeping him for some more time in the hospital and as such the deceased was kept in the hospital till 26.3.1999 when he was discharged. The biopsy report was handed over to relatives of the deceased on 24.3.1999. The discharge papers prepared earlier was modified to the extent of date of discharge but the doctor did not score the words ''Biopsy Report awaited'' from the discharge papers as it did not occur to him that the report has already been handed over to the relatives of the deceased and the technical error of not scoring of may be used as a device to allege negligence or deficiency in service. It is further submitted that CT scan was advised somewhere in April, 1999 but the deceased got it done only in August, 1999. It is further stated that deceased did not take up followup treatment after 8.4.1999. According to Dr. G.D. Goel. he is highly qualified surgeon with vast experience. It is pointed out that at the time of admission in the hospital the deceased had disclosed his income at Rs. 4,000 per month. The income shown in the income tax return filed for the assessment year 2000-2001 on 1.9.2000 i.e. after the death of the deceased is in fact shown as Rs. 6,500 per month and the complainant has exaggerated the income of the deceased as Rs. 10,000. According to him, there is neither medical negligence nor deficiency in service in treating the deceased and the complaint is liable to be dismissed.

OPPOSITE Party No. 2 through Medical Director has filed separate written statement adopting by and large the same stand which is taken by Opposite Party No. 1. It is further submitted that there is neither negligence nor deficiency in service. The question of vicarious liability does not arise.

AFFIDAVIT evidence was filed by Complainant No. 1, by Dr. G.D. Goel, Opposite Party Wo. 1 and by Dr. A.P. Choudhary, Medical Director of Opposite Party No. 2. Dr. G.D. Goel and Dr. A.P. Choudhary were cross-examined by Counsel for the Complainants.

WRITTEN arguments have been filed by the Complainant as well Opposite Parties. Besides this. Counsel for the parties were also orally heard.

LEARNED Counsel for the Complainant submitted before us that Dr. G.D. Goel had neither requisite qualification nor expertise to treat cancer. According to learned Counsel for the Complainant biopsy must precede treatment, but there is no place for the so called excision biopsy and if lesion is not malignant, unnecessary mutilation would be inflicted by such an excision. It is pointed out that lesions less than 2 cm. are treated primarily with radiotherapy, because if treatment is successful there is virtually no functional disability. In this connection reliance has been placed on Bailey and Love''s Short Practices of Surgery which reads as under- "Definitive Treatment- 1. Carcinoma in situ may be excised with a 1 cm. margin and to a depth of about 0.5 cm. Excision wounds on the lateral border may be closed by undermining and advancing mucosa from the floor of the mouth. Larger defects are grafted with split skin. 2. Lesions less than 2 cm are treated primarily with radiotherapy, because if treatment is successful there is virtually no functional disability. For lesions of the anterior two-thirds of the tongue of this size, and where there are no palpable lymph nodes, interstitial irradiation with Caesium needles or Iridium wire is used. A close watch is kept upon the patient, with followup appointments at monthly intervals. If regression is incomplete, or recurrence occurs, or neck nodes become suspiciously palpable, surgery is added."

RELIANCE is also placed on Cancer Surgery written by James C. Harvey M.D. and Edward J. Beattie, M.D. and on Chapter 15 of Principles of Cancer Management Surgical Oncology by Vincent T. Devita and Chapter 16 of Principles of Cancer Management Radiation Therapy by Samuel Hellman.

IT is urged that after advising biopsy of portion of the tongue which was removed. Dr. G.D. Goel neither handed over the biopsy report nor orally informed of the same to the deceased or to complainant No. 1, nor he prescribed any treatment for cancer on account of which there was delay in approaching the Tata Memorial Hospital for cancer treatment. It has been pointed out that deceased came to know of the fact that he was suffering from cancer of tongue from C.T. Scan which was done in August. 1999. He also pointed out that there is no proper or valid consent given by the deceased or by complainant No. 1. Learned Counsel for the complainant drew our attention to the cross examination of Dr. G.D. Goel wherein he admits that he did not have any special qualification relatable to cancer treatment. He also pointed out that Medical Director of Opposite Party No. 2-Hospital has admitted that the Hospital did not have any cancer specialist and there was no separate oncology department though oncology specialist is working in the hospital. It is further pointed out that Medical Director of Opposite Party No. 2 hospital has stated that in the year 1999, the Hospital did not have any oncology specialist and there was no cancer surgeon. In the year 1999, though the Hospital had cancer surgery facility and the surgery was carried out by general surgeon. It is further pointed out that Medical Director of Opposite Party No. 2 Hospital after seeing the prescription of the Complainant by Dr. G.D. Goel has admitted that none of the medicines prescribed relate to treatment of cancer. On the issue of liability of the Hospital, reliance has been placed on the judgment of the Apex Court in the case of Smt. Savita Garg v. Director, National Heart Institute, IV (2004) CPJ 40 (SC)=VI (2004) SLT 385=2004 CTJ 1009 (SC) (CP). On the issue of consent reliance has been placed on the judgment of Sameera Kohli v. Dr. Prabhu Manchanda, I (2008) CPJ 56 (SC)=II (2008) SLT 25=2008 CTJ 226 (SC) (CP). On the question of compensation, reliance has been placed on the judgment of Apex Court in the case of Malya Kumar Ganguli v. Sukumar Mukherjee, III (2009) CPJ 17 (SC)=VI (2009) SLT 164=III (2009) CCR 558 (SC)=2009 CTJ 1064 (SC) (CP) and Dr. Kunal Saha v. Dr. Sukumar Mukherjee and Others, III (2006) CPJ 142 (NC).

IN respect of compensation, learned Counsel for the Complainant has stated that when the sole earning member of the family died on account of sheer negligence of opposite parties leaving behind a widow of 35 years with two kids, compensation claimed is mere pittance.

COUNSEL for the Complainant has also filed literature on the survival rate. When found early.oral cancers have survival rate of 80% to 90%. However, the majority are found at late stage cancers and this accounts for the very high death rate of about 45% at five years from diagnosis and high treatment related morbidity in survivors. It is also pointed out that over half (56%) of those diagnosed with cancer of the mouth, including tongue cancer, live at least five years past diagnosis and 41% have a ten year survival rale.

ON the other hand Counsel for the Opposite Parties submitted before us that Dr. G.D. Goel who was surgeon was competent to do biopsy and that the deceased as well as Complainant No. 1 were not only informed about the biopsy report but the report was also handed over to them; that in case of cancer the survival rate is 5 years; that no expert medical opinion has been placed on record by the Complainant; that the deceased had ultimately died after taking treatment in Tata Memorial Hospital, Rajiv Gandhi Cancer Institute, AIIMS, Jai Kishan Hindu Charitable Hospital, Apollo Hospital who are not made parties in the complaint. She also explained the version of Dr. G.D. Goel of not scoring out "Biopsy report awaited" and that the said biopsy report was given to the deceased/ relations and that they were informed about the same. It was submitted that the deceased was advised to go for C.T. Scan on 8.4.1999 but he did it only on 10.8.1999. On the question of compensation, it is stated that deceased had mentioned his income as Rs. 4,000 per month at the time of admission and in the income tax return, the income is shown as Rs. 6500 per month but in the complaint, income of deceased is shown as Rs. 10,000 per month. It is further pointed out that if Opposite Parties are held liable the amount may be recovered from Oriental Insurance Company as Opposite Party No. 1 is covered by Insurance Company. It may be pointed out that this fact has not been pleaded or taken at any stage prior to filing of written arguments, nor any application was filed by the Opposite Parties for joining Oriental Insurance Company. Accordingly this submission made by the Counsel for the Opposite Parties cannot be looked into at this stage.

WE have gone through the record and considered submissions made on behalf of parties. Dr. G.D. Goel is a surgeon and he has stated in his cross examination that he is having experience of general surgery for more than 30 years. He has also stated that he has also experience with regard to oncology. He has admitted that there was no cancer department in the Opposite Party No, 2 Hospital and he does not have any special qualification relatable to cancer treatment. He has attended various seminars including international seminars where he has read papers and material in cancer surgery while he was in Maulana Azad College. According to him in suspected cancer, excision biopsy beyond visible disease region has to be done, but if one cuts through the disease area it may spread. According to him, he did excision of the partial tongue because lesion was beyond 1 cm. from the edge of tongue. He further states that CT Scan was not done before excision because CT Scan was not likely to help. The deceased was admitted on 18.3.1999 and was operated on the next day. In fact, biopsy should have been done before going in for excision biopsy and once biopsy report was available further treatment including excision biopsy could be done in order to remove the malignant portion of the tongue.

ACCORDING to the Complainant, biopsy report was never handed over by Dr. G.D. Goel either to the deceased or Complainant No. 1 nor they were informed of the contents of the biopsy report. However, according to the stand taken in written statement of Dr. Goel, relations of the deceased were told on 24th morning that as per biopsy report the nodule which was removed was positive for malignancy test and that the report was handed over to the relations of the patient on 24.3.1999 itself. However, in his cross examination, he has stated that after biopsy report he had discussed the same with the Head of Pathology Department and thereafter Pathology Department handed over the report to the ward for handing over the same to the relations of the patient and it might have been given to patient''s relatives on 24.3.1999 or 25.3.1999. In the written arguments filed on behalf of Opposite Parties it is stated that the report of biopsy as well as slides and blocks of the nodule was collected directly from the lab by the patient or his relatives. In the discharge report dated 26.3.1999, it has been stated "Biopsy report awaited". There is overwriting in the date of discharge and close examination of the same would reveal that initially the date written was 25th but after overwriting it is 26.3.1999. The contention of Dr. Goel is that the discharge report was prepared on the intervening night of 23rd and 24th March, 1999 and at the request of the deceased''s relations, the deceased was kept in the Hospital till 26.3.1999 and as such the expression "Biopsy report awaited" was not deleted in the discharge slip. This explanation of Dr. G.D. Goel is totally unacceptable. There is overwhelming material on record to show that the biopsy report which was in fact ready on 23.3.1999 was not handed over to the deceased or his relations. There is also no material on record except for the bare say of Dr. Goel that the relations of the deceased were informed about the said report. Dr. Goel in his cross examination has admitted that in the discharge slip it was not mentioned that the patient was having cancer. On the first followup dated 31.3.1999 it was not mentioned that patient was suffering from cancer which fact has been admitted by Dr. Goel in his cross examination. He also admitted that cancer treatment was not given to the deceased. According to Dr. Goel, in prescription dated 8.4.1999 it was mentioned that patient was having mitotic lesion which means cancer and on that date patient was advised for CT Scan. The said prescription is at page 102 of the record but it does not mention mitotic lesion, though CT Scan for neck and oral cavity was advised. Dr. Goel did not get the CT Scan done before biopsy excision since according to him the same was not likely to help which cannot be accepted. However, he thought it fit to go in for CT Scan after about 15 days from conducting excision biopsy. In our opinion Dr. Goel conducted excision biopsy in a great hurry without proper and adequate investigation for determining the malignancy of lesion/nodule. It is also pertinent to note that even after the receipt of biopsy report Dr. Goel did not prescribe any medicines for treatment of cancer. Dr. A.P. Choudhary, Medical Director of Opposite Party No. 2 in his cross-examination admitted after going through the prescription of the complainant, prescribed by Dr. Goel, none of the medicines prescribed related to treatment of cancer. He has admitted that he has no experience or specialization in treating cancer patient. He further admitted that there was no cancer specialist in the Hospital and there was no separate Oncology Department although the hospital had oncology specialist. However, he had admitted that in the year 1999, Hospital did not even have oncology specialist and there was no cancer surgeon in the hospital in the year 1999 but cancer surgery facility was available and the surgery was carried out by general surgeon. All this would go to show that neither the Hospital was equipped with any specialist for treatment of cancer nor Dr. G.D. Goel who performed excision biopsy had conducted preliminary investigation except biopsy of the tongue before performing excision surgery and even the said report of biopsy was not available at the time of operation on 19.3.1999 and was admittedly ready on 23.3.1999. Even if the biopsy report was received, biopsy report was not given to the patient or his relations nor they were informed that the patient was suffering from cancer. No treatment for cancer was prescribed and it is only after the report of the CT Scan dated 10.8.1999 that the patient had gone for treatment to Tata Memorial Hospital. Dr. Goel never recommended to the patient/deceased that he should go for treatment by cancer specialist in the field. Thus, this is a case where clear case of deficiency of service on the part of Dr. Goel is proved for which the Hospital is also responsible.

IT has been held in the case of Savita Garg v. Director National Heart Institute (supra), that a patient goes to a private clinic on account of its reputation so as to get best treatment. Once the patient is admitted in the Hospital, it is the responsibility of the Hospital to provide best services and if it is not provided, the Hospital cannot take shelter under the technical ground that the concerned surgeon was not impleaded. It has been further held that the distinction which is sought to be pressed into service cannot absolve the Hospital or the Institute as it is responsible for the acts of its treating doctors who are on the panel and whose services are requisitioned from time-to-time by the hospital looking to the nature of the disease. The Hospital or the Institute is responsible and no distinction could be made between the two classes of persons i.e. the treating doctor who was on the staff of the Hospital and the nursing staff and the doctors whose services were temporarily taken for treatment of the patient.

THE treatment of the deceased was thus delayed on account of Dr. G.D. Goel not informing the patient or his relations of the biopsy report and not recommending treatment by a cancer specialist. Dr. Goel even did not prescribe any medicine for treatment of cancer. The deceased died within one year of the performance of excision biopsy, even though treatment was taken by him from various hospitals. When oral cancer is detected at early stage, survival rate is 80 to 90% and over 50% of those diagnosed as tongue cancer live at least 5 years post diagnosis and 41% have a ten year survival rate. These details have been given in Oral Cancer Information-Oral Cancer News-Oral Cancer Foundation, 2009 and prognosis of tongue cancer filed by Counsel for the Complainant. In the facts and circumstances, we are of the opinion that the Complainants are entitled to compensation taking the period of survival as 7 years.

AT this stage, it may also be pointed out that no proper consent from the patient or his relations was taken by Dr. G.D. Goel in the pre-admission record which is at page 321. The portion relating to permission concerned reads as under: "Permission is hereby given for performance of any diagnostic examination, biopsy, transfusion, operation and admission of any anesthesia as may be deemed advisable in the course of Hospital admission. I am willing to take any risk arising out of any of the above procedures."

IN fact there is nothing on record to show that exact nature of risk covered or implications and effects of excision biopsy conducted by Dr. G.D. Goel was at any stage explained to either the deceased or his relations. The so-called consent referred to above is perfunctory in nature. Besides this, at page-349 of the record there is an Informed Consent which also cannot be treated as proper consent. Column 5 of Informed Consent states it has been explained to me that the risk of the operation in my case is high because of following factors: (a) (b) (c) (d) The columns a to d are blank. The Apex Court in the case of Sameera Kohli v. Dr. Prabha Manchanda (supra), has dealt with issue of consent and informed consent. In case under consideration no proper or real consent has been obtained after explaining the risk factor implications as also after effects of the excision biopsy.

COMING to the question of compensation, according to the complainant, her husband was earning Rs. 10,000 per month only, according to Opposite Parties the deceased had given his income as Rs. 4,000 per month at the time of admission and Rs. 6,500 per month as per income-tax return. In fact, the income-tax return of the deceased was filed after his death by Sushma Chugh-Complainant for the assessment year 2000-2001 wherein the total income of Narender Kumar-deceased is shown as Rs. 80,500 per annum which means that the income of the deceased shall be around Rs. 6,500 per month. Deducting one-third expenses as personal expenses of the deceased, the amount which would be available to the family of the deceased would be around Rs. 4,400 per month and taking into consideration the gradual increase in the income over the years, the same can be taken as Rs. 5,000 per month on an average. Multiplying the same by 7 years, it comes to Rs. 4,20,000 (Rs. 5,000 x 12 x 7 years). Besides this, the Complainants are entitled to loss of company as well as mental agony suffered by them on account of premature death of the deceased for which in our opinion; a sum of Rs. 2.5 lacs be awarded in favour of the Complainants. In addition to that, we award a sum of Rs. 1 lac towards hospitalization and treatment of the deceased till his death. Therefore, the complainant shall be entitled to total compensation of Rs. 7,70.000 (Rs. 4,20,000 + Rs. 2,50,000 + Rs. 1,00,000). The complaint is accordingly allowed in aforesaid terms with cost of Rs. 25,000 as against both the Opposite Parties who shall be severally and jointly liable to pay the said amount with 9% p.a. interest thereon from the date of death of the deceased till the said amount is paid. Appeal allowed.