VUDUMULA LEELAKUMARI vs M. RAVINDRA

THE first complainant is the mother and the complainants 2 and 3 are her children. THE first complainant, hereinafter called ''the deceased'' consulted the opposite party, hereinafter called ''the doctor'' during the first week of August, 1996 for a complaint of bleeding. On the advice of the doctor, she underwent Hysterectomy operation on 10.8.1996. Later on 11.8.1996, the doctor sent the specimen for Biopsy test at Guntur through her husband. M/s. Govardhan Diagnostic Private Limited, Guntur, issued the Biopsy report dated 14.8.1996, which revealed ''Cervix Invasive, Large cell, Keratinising Squamous Cell Carcinoma''. After perusing the report, the doctor informed her that it is a case of cancer and advised her to go to Hyderabad or Bangalore for cancer treatment. Accordingly, the deceased came to Hyderabad and visited M.N.J. Cancer Hospital on 26.8.1996, where Ultra-sonography, X-ray, Cytology and other tests were conducted. She underwent radiation therapy from 28.8.1996 to 30.8.1996. THE doctors at M.N.J. Cancer Hospital wanted to know what was the treatment given by the opposite party doctor, upon which, the latter gave a reference letter stating that he did not find anything except the growth at cervix and that is why he performed the operation. After 10 months of radiation, the deceased developed swelling at the operated scar of abdomen. She visited M.N.J. Cancer Hospital again on 4.9.1997 and ultrasonography test was done. On 26.9.1997, Cytology test was conducted at Medinova, Hyderabad.

THE deceased visited Dr. Ravi Babu at Guntur on 22.10.1997. Culture, blood and scanning tests were conducted. In the biopsy test at Guntur on 2.11.1997, it was confirmed that the swelling on her abdomen is due to cancer gland. She, therefore, visited the M.N.J. Institute, Hyderabad again on 26.11.1997, where she was advised to undergo treatment for cancer. While the Chemotherapy treatment was going on, she was informed on 19.3.1998 that there would not be any use of further course of Chemotherapy and prescribed some tablets as the deceased reached cancer phase-IV for which there was no cure. The opposite party committed a mistake in diagnosing the disease. Without conducting any test, in a hasty manner he performed Hysterectomy. He came to know for the first time that it is a case of cancer, only after sending the specimen for biopsy test after the surgery. Cervix is the lower part of uterus, which can be seen through vagina by speculum (instrument). Cervix can be palpated with fingers and the nature of growth can be suspected. Biopsy of cervix is a simple out-patient procedure. Hence the opposite party committed a mistake by taking recourse for surgery without properly diagnosing the type of growth. Stage-I cervix cancer can be cured with surgery or by radiation treatment and if treated properly, the patient can lead normal life.

The opposite party used some instruments which contaminated with cancer cells to close the abdominal muscles and tissues. Recurrence of cancer in abdominal wall is due to negligence of the doctor who performed Hysterectomy operation.

THE complainant has spent a sum of Rs. 1 lakh so far for treatment. Because of the negligence on the part of the opposite party, her life became gloomy even at a very young age. Her husband deserted her and she has to take shelter along with her children with her aged parents. Hence she claims a compensation of Rs. 6 lakhs together with costs. In the counter filed by the opposite party, it is stated that the first complainant approached him with problem of bleeding dysfunctional and untimely. There is history that the patient was suffering from the said problem since two months and irregular periods for six months, bleeding once in 15 days for a period of 2 to 4 days. The patient was examined and it was found that the bleeding from the uterine cavity but he could not find any mass in the cervix which can be examined per vaginally. Then, he came to the conclusion that it may be a case of Dysfunctional Uterine Bleeding. The patient with the above problem may become anaemic and sick and it may lead to Hypovolemic shock. He advised the patient to go for Hysterectomy immediately. Before conducting hysterectomy, cervic was seen with speculum through vagina and nothing irregular or any suspicion was discovered except bleeding from the uterine cavity. In view of the history of the patient, her age and his findings, after examining her thoroughly, he did not feel the necessity of biopsy. However at the end of the procedure and operation, he got some suspicion about the lesion in the endo-cervix and therefore he had sent the specimen for histo-pathological examination. From the biopsy, it is revealed that the specimen was found "Cervix Invasive Large Cell Keratinising Squamous Cell Carcinoma." In view of this report, the patient was immediately discharged and advised proper treatment for cancer.

IT is denied that the opposite party committed a mistake in diagnosing the disease. IT is equally false to state that without conducting any test, Hysterectomy was done in a hasty manner. IT is denied that the patient after ten months of radiation developed swelling at the operated portion of abdomen. The further allegation of swelling at the operated scar is recurrence of cancer in the abdominal muscle tissues is incorrect. As the patient was suffering from "Invasive Large Cell, Keratinising Squamous Cell Carcinoma" the disease will attack every part of the body including the muscles, etc. IT is submitted that even for majority of abdominal malignancies, total surgery can be done with the same instrument. However, as precautionary measures, to avoid any contamination he used different clothes and instruments at different stages of the operation. There is no cure for cervix cancer and as the disease is attacked to the patient because of some unknown Etiology and not by the surgery conducted by him. There is no negligence on his part. There is no basis to claim a sum of Rs. 6 lakhs towards compensation. The claim is vexatious and the complaint is liable to be dismissed. By the time, the evidence was taken, the first complainant passed away. Her father was examined as P.W. 1 besides marking Exs. A-1 to A-21. The opposite party examined himself as R.W. 1 and marked Ex. B-1 case sheet. The complainants filed CD IA No. 1381/1999 to declare the complainants 2 and 3 as legal representatives of the first complainant and also to appoint their maternal grand father as guardian of the complainants 2 and 3. The said application was accordingly ordered on 2.11.1999.

AT the request of the complainants, this Commission called Dr. Mohan Vamsi, Director, Indo-American Cancer Institute and Research Centre, Hyderabad and examined him, who after going through the record deposed as C.W. 1.

THE point, therefore, that arises for consideration is whether there is any deficiency in service on the part of the opposite party, if so to what extent? The first complainant approached the doctor for a complaint of bleeding. She was advised Hysterectomy which was performed on 10.8.1996. The doctor sent the specimen for biopsy test and the report dated 14.8.1996 disclosed Cervix Invasive Large Cell Keratinising Squamous Cell Carcinoma. After perusing the report the doctor advised her to take treatment for cancer at Hyderabad. These facts are not in dispute.

The learned Counsel for the complainant contends that the opposite party failed to diagnose the disease which is a deficiency. The reason for bleeding was not ascertained, no investigations have been carried out. The complainant was suffering from cervical cancer and without knowing he performed the surgery though he is not a Surgical Oncologist or Gynaecologist. It is also further contended that when there is heavy bleeding, the doctor should conduct speculam examination or by palpation (feeling with the fingers), DNC scraping, Ultra Sound test or crew cut biopsy. Therefore, the learned Counsel for the complainants submits that Hysterectomy was done in a hasty manner.

THE opposite party in his written version stated that when he examined the patient he found bleeding from the uterine cavity but he could not find any mass in the cervix per vaginally. Hence he came to the conclusion that it may be a case of Dysfunctional Uterine Bleeding (DUB). As the patient with the above problem may become anaemic and sick and it may lead to Hypovolemic shock he advised her to go for Hysterectomy. In Shaw''s Textbook of ''Gynaecology'' the main symptoms of carcinoma of the cervix are mentioned as (a) haemorrhage, (b) discharge, (c) cachexia (a profound and marked state of constitutional disorder, general ill-health and malnutrition), and (d) pain. Under the heading ''Diagnosis'' it is stated that the history given by the patient should lead to the suspicion of the presence of a carcinoma of the cervix. Instead of dismissing as merely suffering from irregular menstruation, examining suspected patients vaginally, the gynaecologist should suspect carcinoma of the cervix in any woman of irregular vaginal bleeding. The diagnosis can be made by examining the cervix both digitally and visually. Cytological examination is now almost obligatory. A negative smear may be reassuring but it is never infallible. Cervix should be examined with speculum. In some cases of carcinoma of the cervix the growth produces stenosis of the cervical canal and the cavity of the uterus collects accretions which become infected and lead to the formation of a pyometra. In early cases, whether operative or radio therapeutic treatment is chosen, the end results are fairly good. Invasive carcinoma of the cervix is both a preventable and curable if recognized and treated in time. The problem of bleeding, dysfunctional and untimely irregular periods'' bleeding, once in 15 days for a period of 2 to 4 days and pain should have put the doctor on alert is the sum and substance of the argument of the complainant.

THE learned Counsel for the opposite party submits that the complainant is only aged about 30 years and the place Yerragundapalem in Prakasam District is a remote place where no Ultra Sound or biopsy test facilities are available. It is a village having a population of 4000 at the relevant period and that there are no lady doctors in that place. He further contends that the village is 150 kms away from District Headquarters, Ongole and almost the same distance from Guntur. As the doctor did not notice any mass in the cervix he advised Hysterectomy as he diagnosed the problem as Dysfunctional Uterine Bleeding. The learned Counsel for the opposite party relies on the following Para in Shaw''s Text Book of Gynaecology 10th edition page 316 under Disfunctional Uterine Bleeding : "In a large number of patients menorrhagia is not associated with any structural abnormality in the pelvis or evidence either of general disease or endocrine disorder. If on clinical bimanual examination the uterus and appendages are found to be normal, the term Dysfunctional Uterine Bleeding is used. This term should be reserved for those patients in whom not only is pelvic examination normal but in whom there is no other demonstrable extra-genital cause for the bleeding. In many cases of menorrhagia no abnormality and no abnormal physical signs can be detected except that the uterus is symmetrically enlarged. In a multigravida who has borne many children, as a result of the deposition of elastic tissue in the uterus after each delivery, the uterus is hard and firm and the vessels stand out prominently when the myometrium is incised. Originally this was attributed to chronic metritis but when histological studies excluded the presence of inflammatory lesions, the enlargement of the uterus was regarded as being caused by subinvolution. It is now believed that the actiology is purely hormonal and that the hypertrophy and hyperplasia of the myometrium are induced by a high titre of oestrogen in the circulating blood......"

It is further submitted that it is approved procedure that in some cases of severe Menorrhagia excessive discharge than normal discharge of menses the patient should be treated by Hysterectomy. Of course Hysterectomy, a major procedure must be considered very carefully before it is advised. He relies on the following observations made in page 321 of the same text book. "The decision as to whether hysterectomy should be performed in cases of menorrhagia depends upon the features of each individual case. If the woman has acquired a severe degree of anaemia and her general health is impaired by the menorrhagia, drastic treatment is justified. Similarly, if the woman has children and has no desire for further off-spring, there would be more inclination towards Hysterectomy than in the case of a recently married woman. Features of this kind must all be taken into account before deciding upon Hysterectomy. If a woman is good subject for operation, total Hysterectomy has a low mortality of the order of less than 0.2% in good hands. With anaemic women preliminary blood transfusion must be performed where the level of haemoglobin is 70% or less. The above outline of the available methods of treatment in cases of menorrhagia shows that each individual must be treated on her merits and not according to a fixed plan."

No doubt hysterectomy can be performed in the discretion of the doctor on a woman suffering from menorrhagia. But whether it is a simple case of menorrhagia or whether it is a case of cervical cancer should be properly diagnosed. In our view the opposite party failed to diagnose the same as one cannot jump to the conclusion that all cases of menorrhagia are cases for Dysfunctional Uterine Bleeding. There may be cases of cervical cancer also. This possibility should be eliminated by conducting appropriate test but this was not done. Tests like ultrasonography, X-ray, Cytology, Pap smear, etc., or any of them were not done. This in our view is deficiency in service. On a memo filed by the complainant we called Dr. Mohan Vamsi, MS (Gen), M.Ch (Oncology), FRCS, Head of the Department of Oncology and Director, Indo-American Cancer Institute and Research Centre, Hyderabad who opined that whenever the doctor suspects carcinoma cervix he needs to examine the patient per vaginally and per speculum examination and if there is doubt biopsy of the cervix or pap smear examination is to be conducted. An M.B.B.S. doctor can do vaginal examination through speculum or finger examination. The commonest symptoms of cervix cancer are post-coital bleeding, pain, menorrhagia, inter menstrual bleeding. He says that for carcinoma cervix radical Hysterectomy is to be performed. But it cannot be performed without biospy proof basing on white discharge. Only for white discharge emergency operation is not necessary. He further says that Hysterectomy will be performed when the woman comes with excessive bleeding or white discharge or Dysfunctional Uterine Bleeding but radical Hysterectomy will be performed when it is confirmed that it is cervical cancer.

STAGE-I cancer is a tumor confined to cervix. Ex. A-9 biopsy report reveals that it is an invasive cancer. If the diagnosis in diagnosing the cancer is delayed the chances of its spreading to other areas are more and chances of recovery are less. On going through the documents he opines that the complaint made by the patient before the doctor was that she was suffering with white discharge, excessive bleeding and irregular periods. It is correct on the part of the opposite party doctor having found suspicion of a growth in the endocervical canal, has sent it for biopsy examination and growth in the endocervical canal may not be visible per vaginally or by per speculum examination. Of course he says that the finding of the opposite party doctor that it is a case to conduct hysterectomy operation when he found no growth in the cervix is not improper. Finally he states that if the patient comes with a complaint of irregular periods, excessive bleeding or white discharge, it is necessary to conduct clinical examination, speculum examination, per vaginal examination and ultrasound if facility is there. He agrees that if the patient is suffering from cancer simple Hysterectomy should not be done. From this evidence and the authorities cited before us referred to above, we are of the opinion that proceeding with simple Hysterectomy without advising Ultra Sound and vaginal smear for examination is a deficiency in service. Of course after the Hysterectomy was performed, the doctor found suspicion in endocervical canal, he has sent it for biopsy examination and on receipt of the report he rightly advised the patient to consult a cancer specialist. But before taking a decision for simple Hysterectomy he failed to advise necessary tests and thereby came to incorrect diagnosis.

THE learned Counsel for the complainant submits that when the first complainant approached MNJ Cancer Hospital at Hyderabad on 26.8.1996 ultrasonography, X-ray, Cytology and other tests were conducted upon her. Radiation treatment was given. 10 months after radiation, the patient developed swelling at the operated scar of abdomen. Again she came to Hyderabad on 4.7.1997. Ultrasonography was done as well a Cytology test. Culture, blood test and scanning tests were conducted at Guntur on 22.10.1997 and in the biopsy test at Guntur on 22.11.1997 it was confirmed that the swelling on her abdomen is a cancer gland who was advised treatment of six courses of cancer. Accordingly, fourth course was completed by 20.2.1998. When she appeared on 19.3.1998 for the fifth course of chemotherapy she was informed that there is no cure for the disease and further courses of chemotherapy are of no use. THEy prescribed only some tablets. She was informed that the condition of cancer is in Phase IV for which there is no cure. THE complainants contends recurrences of cancer in abdominal muscle tissues, must be due to the Hysterectomy operation and while conducting Hysterectomy the doctor used the same instruments contaminated with cancer cells to close the abdominal muscles and other tissues. The learned Counsel for the complainants relies on Boyd''s Textbook of ''Pathology'' wherein under the heading ''Implantation'' it is mentioned as follows: "Rarely, a tumor is spread by implantation. If a surgeon contaminates an instrument with malignant cells, they could be implanted into the tissues, and could grow into a metastatis, through the odds against the survival of the tumor cells are enormous. In a few patients, immunosuppression has allowed a tumor inadvertently transplanted in a kidney to grow and metastatize, killing the recipient."

Hence though the possibility is there we are not sure whether the implantation had actually taken place due to the Hysterectomy or not in view of the evidence on record.

The learned Counsel for the complainants however contends that if it was diagnosed properly by the opposite party cure would have been possible as success rate for treatment of Stage I cancer is very high. Further as CW 1 admits that for white discharge emergency operation is not necessary and for carcinoma cervix radical Hysterectomy is to be performed after obtaining biopsy proof. Hence we are of the opinion that rushing to Hysterectomy without conducting appropriate tests is deficiency in service. Therefore, the learned Counsel for the complainants contends that had it been properly diagnosed before the Hysterectomy was done, the chances of recovery would have been bright. We agree with him.

AS the first complainant died during the pendency of the complaint, her daughter aged 12 years and son aged 10 years were brought on record as complainants 2 and 3. The learned Counsel for the complainants submits that in view of indifferent health of the first complainant her husband abandoned her and she was forced to live with her parents along with her children causing heavy burden to her aged parents. She, therefore, claims a compensation of Rs. 6 lakhs.

IT is true that the first complainant died at prime age leaving two minor children who are complainants 2 and 3. The complainant submits that she has spent about a lakh of rupees by the time of filing of the complaint. We are of the view that she must have also spent some money after filing of the complaint before her death. We are of the view that a sum of Rs. 1 lakh must have been spent by the first complainant for her treatment till her death. In addition to that we are of the view that a sum of Rs. 2 lakhs would meet the ends of justice towards compensation to the complainants 2 and 3 for loss of love and affection and care of their mother. In the result, the complaint is allowed directing the opposite party to pay a sum of Rs. 3,00,000/- (Rupees three lakhs) with interest at 12% p.a. from the date of filing of the complaint till payment together with a sum of Rs. 10,000/- towards costs. Time for payment six weeks. Since the complainants 2 and 3 are minors, the sum awarded shall be kept in fixed deposit in any nationalised bank during their minority and after attaining majority they will receive the sum in equal share. However, the guardian of the minor complainants namely Dodda Anji Reddy is permitted to withdraw quarterly interest to meet the necessities of the minors during their minority. Complaint allowed.