13-50 ONCOLOGY

13-50.1 Oncology-Cobalt therapy without confirming disease-Death of patient-Held negligence-Doctor examining a patient and advising biopsy-Giving cobalt therapy without waiting for biopsy report which later on was found negative- Patient's health deteriorated despite treatment and she subsequently died-Clairn for damages by legal representatives for crude negligence and recklessness in treatment- Doctor's contention that liability was contractual not accepted-Liability held to be tortious on ground that when a patient goes to a doctor he does not intend to enter into a contract with him as contemplated under the Indian Contract Act. [ Dr. Sharad Vaidya v. Paulo Joel Vales (deceased by LRs) and ors., 1994 ACJ 835 (Bom.-HC, Panaji Bench).]

13-50.2 Oncology-Leukaemia (blood cancer)-Pathological test-Failure to diagnose and give treatment-Non-production of blood report by complainant- Finding of blood cancer could not be arrived at-No negligence or deficiency in service-The son of the complainant had blood cancer and the opposite party could not treat the disease in a period of 40 days. Ultimately, he was taken to the medical college where the case of blood cancer was diagnosed. According to the counsel for the appellant, family doctor treating the son of the complainant should have got the examination of blood cancer. This blood report has not been filed before the District Forum. Also no copy of the same has been produced before Commission.

The State Commission held that in absence of report it couldn’t be said that there was any indication that the son of the complainant was suffering from blood cancer. Therefore, it cannot be said that the doctor who was treating the son of the complainant was negligent and deficient in service. [Wahid Khan v. Dr. Mohd. Abdul, 1999 (3) CPJ 304 (UP SCDRC)]

13-50.3 Oncology-Lung cancer-Decortication surgery-Histological report not taken-Not sending pleura for biopsy for that purpose, a slip in doing an important routine investigation in super major surgery-Negligence and defi- ciency in service-Medical and travel expenses awarded-In decortication surgery , it is possible and easy for the doctor to send a sample as a routine matter for histopathol- ogy report and not doing the needful was negligence and deficiency of service. There is no reason as to why a specialist doctor should ignore such a routine matter and when the hospital has all the necessary equipment to handle it. Mere statement that he did not notice anything abnormal and anything red in colour, does not justify this oversight which cost the patient perhaps not his life directly but in so many other indirect ways has caused him distress, agony and despair before his death.

Though the word cancer carries a fear of a death warrant or a time bound life, it is unfair for the doctors to write off the case as incurable and that it is a rare type ofpleura cancer, arising out of asbestos exposure and so they are not negligent in their surgery in Hinduja Hospital. For not sending the pleura for a biopsy report, the doctors were negligent. The Commission further held that though the death of the patient was inevitable and not the result of surgery, the surgeon should bear the medical and travel expenses incurred by the patient during the anxious days ofhis life. [8.11: Panchori & Ors. v. Dr. KaushalPandey & Ors., 1999 (I) CPR 385 (Mah. SCDRC)]

13-50.4 Oncology-Breast cancer-Non-examination of left breast clinically improbable-Bilateral Mammogram taken, and left breast found normal having onlya fatty nodule-Quick and intensive treatment for curing entire disease being diagnosed in an advanced stage-Treatment in accordance with accepted medical practice-No negligence or deficiency in service-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. The Tata Memorial Hospital, one of the world' s best hospitals 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, 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 on his own, he categorically stated that left side mamnlogram has never been taken. This document was filed in Maharashtra Medical Council and that is how opposite party could get a copy of it. This is a mala fide accusation by complainant against opposite party and is false without any substance. Besides, none of the specialists, i.e., the Surgeons, Radiologists and Chemotherapists who are involved in the treatment felt the necessity to do another mammogra111, as it would not have altered the intensive and continuous treatment given. [8.K. 8harmav. Dr. P.B. Desai, 2000 (3) CPJ407: 2001(1) CPR68 (Mah. SCDRC)]

13-50.5 Oncology-Malignant left adrenal tumor-Surgeon adopting anterior approach-Death of patient on account of pyogenic meningitis-Plea that poste- rior approach, the only approach for adrenaloctomy not supported byevidence- Medical experts accept the approach adopted by surgeon, as proper-No negligence-A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art. Nowhere the complainant is able to support his contention that posterior approach was the only approach and opposite party No.3 was negligent in adopting the anterior approach especially when the deceased after initial diagnosis was suspected with possibly having a malignant left adrenal tumor. The fact of malignancy and the doctor's diagnosis was further buttressed by the histology report obtained next day. At best it was a matter of judgment and discretion for the surgeon to adopt. In this case, opposite party No. 3, used his judgment to adopt the. anterior' approach. Even if opposite parJ; Y No.3 is held to be on balance, it tilts in favour of him, with the oral evidence of Prof. M.K. S., Additional Professor, AIIMS, when he unequivocally states in response to a specific question that for malignant tumors, by and large, we prefer anterior approach. He reiterates in reply to another question that if you are suffering of cancer, then it is anterior approach. He again says "...If there is any doubt in our mind that this tumor can be malignant or the size as marginal or if we have got any suggestion that this could be malignant by any other investigation, in that situation, I will definitely use 'anterior approach Dr. N, Professor and Head ofDepartment ofGastro-lntestinal Surgery , AIIMS also supports 'anterior' approach and confirn1s and reconfirms adoption of 'anterior' approach in view of inherent advantages of the approach. This settles the issue. Even if the medical material presented is taken to weigh, even then, in the light of material and evidence adduced, the opposite party No. 3 cannot be held guilty of any negligence for selecting the' anterior' approach for left adrenal surgery in the case of the deceased. [Smt. Kusum Sharma & Ors. v. Batra Hospital and Medical Research Centre & Ors., 2000 (3) CPJ 18 (NCDRC)]

13-50.6 Oncology-Malignant breast tumor-Deceased 45 years of age-Op- posite party having no infrastructure and facilities for open surgery-First surgery without any prior tests, but no improvement-Reoccurrence of lump-Second surgery, before referring petitioner to cancer hospital-Negligence, held-Rs. 1,00,000 awarded as compensations for loss of love, affection, consortium and companionship, in addition to Rs. 50,000 towards expenses for treatment-The 3rd OP has come to know from the Histopathology report concluding that the 'Breast: Fibro sarcoma with cysto sarcoma phyllods ' , that by the time the deceased 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 to undergo treatment in any cancer institute after the first operation was conducted by him is again a deficiency on his part. Conducting second operation on 5.1.1991 again without directing her to go to cancer hospital is certainly a deficiency on his part. 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. 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. Compensation of Rs. 1,00,000/- awarded for loss of love, affection, consortium and companionship, in addition to Rs. 50,000 towards expenses for treatment. [S. Kishan Rao & Ors. v. Sudha Nursing Home & Ors., 2001 (3) CPJ 478 (AP SCDRC)]

13-50.7 Oncology-Pathological report-No clinical diagnosis nor prescription of treatment-Death of patient suffering from cancer-N o negligence- The com- plainant's wife was suffering from some disease and she was taken for pathological examination to opposite party Nos. 1 and 3 for the first time and thereafter opposite party No.2 did the pathological examination and submitted their report. They had not done clinical diagnosis of the complainant's wife nor they had given any opinion regarding the disease, which might have been contacted by the complainant's wife. The patient was suffering from cancer IV stage from a very long time and she died. The complainant alleged wrong diagnosis on the part of opposite parties.

Held: The pathological examination which was done by opposite party No.2 was in the nature of report which was based on the examination. He has also not advised anything to the complainant for treatment ofhis wife. It has not been indicated by any one of the opposite party Nos. 1, 2 and 3 that the complainant's wife is suffering from cancer or any other disease. They merely submitted their report and it was for the surgeon who had performed the operation to see whether there was any cancer present in the body of the complainant's wife. The opposite party Nos. 1, 2 and 3 have nothing to do with this part of diagnosis. Even in ultrasound the cancer if it is less than 2 cms. cannot be detected, therefore, there was no fault on behalf of the opposite party Nos. 1, 2 and 3 in causing the death of the complainant's wife because they have not diagnosed the case. Thus, no case is made out against the opposite party Nos. 1, 2 and 3. [Raj Kumar v. Dr. Ajay Gupta, 2001 (1) CPJ 495 (UP SCDRC)]

13-50.8 Oncology-Breast cancer-Patient a case of advanced stage of right breast cancer-Treatment with chemotherapy and radiotherapy to which she responded well-On recurrence of the disease, surgery of right breast Modified Radical Mastectomy (MRM) carried out-Death of patient-Negligence alleged on grounds of left breast remained unattended and mammography not carried out-Both grounds not supported by any material on record-Doctor following accepted procedure in treating the patient-No negligence or deficiency in serv- ice-As per hospital record, left breast was examined when left breast was found to be normal and again on 21.5.1995 when 'L/axilla + LS/G node + palpable' is noted  Left breast was never affected, hence never treated specifically. Chemotherapy is a systemic treatment, which addresses the body as a whole and not to a particular part in the body. Thus, that is no merit in the argument of the appellant that 'Mammography' was a 'must' and left breast remained unattended. As per record when the deceased came for the first time, she already had T4 N1 NM stage of cancer, which is the penultimate stage-an advanced stage of cancer. When on examination and on other indicators, it was found to be a case of right breast cancer adopting a conservative approach she was treated with chemotherapy and radiotherapy. As per material on record-she responded well and regression of disease was noted as 'very good’. When recurrence was noticed, surgery (MRM) was done. This is as per the materialon 'Treatment of Local and Regional Disease' in the literature on the subject supplied by the appellant. Nothing has been shown based on the literature on the subject, that surgery was the only treatment. As per material on record, respondent followed an accepted practice. At worst even if it is found that two options were there and the respondent adopted one, as per settled law, this cannot amount to medical negligence. The appellant has failed to prove, based on any ~aterial on record, the two grounds iWj on which the order of the State Commission has been challenged. Here was a case of advanced stage of cancer-where a combination of chemotherapy and radiotherapy was administered. Yet when the disease recurred, then surgery was done. The respondent doctor followed the accepted procedure. It is unfortunate that still the deceased patient could not be saved but it cannot be said that death was caused by any negligence on the part of the respondent. [S.K. Sharma v. Dr. Praful B. Desai, 2003 (2) CPJ 90 (NCDRC)]

13-50.9 Oncology-Breast cancer-Complainant feeling acute pain in her left breast undergoing FNAC (Fine Needle Aspiration Cytology) test at pathology department of opposite party and based on the report it was diagnosed that she was having breast cancer-Mastectomy conducted and the left breast totally removed-Histo-pathological reports and also report from National Institute of Nutrition showing no signs of malignancy, but of subareolar abscess-Complain- ant alleging negligence for wrongly operating her-Symptoms of subareolar ab- scess can often lead to a false positive diagnosis of breast malignancy-Opposite party doctor or hospital not be held liable for negligence or deficiency in service in conducting the surgical intervention-No doubt histopathology reports show that there are features of consistent with subareolar abscess. In the text book: Comprehensive Cytopathology, (W.B. Saunders Co.) at page 709 under heading Subareolar Abscess it is o~served that' 'with the presence of nipple retraction and amass, the lesion can be clinically confused with a neoplasm such as adenoma of the nipple or breast carcinoma' It is further observed that Subareolar abscess of the breast demonstrates some of the potential diagnostic pitfalls for a false-positive diagnosis ofmalignancy that can occur in any inflammatory process including those involving the breast. These include the presence of groups of a typical ductal cells squamous atypia and fragments of exuberant granulation tissue. Four of our initial eight cases demonstrated some of these findings which could potentially lead to a false positive diagnosis  ofmalignancy, if the other cytologic features of subareolar abscess were not appreciated. A ruptured epidermal inclusion cyst arising in the skin of the breast shares similar cytologic and histologic features with subareaolar abscess, but the peripheral location of the epidermal inclusion cyst should clearly separate that lesion from the central subareolar abscess". From this it is clear that subareolar abscess can be very often confused for false positive diagnosis of malignancy. In view of these circumstances we cannot reach the conclusion that there is negligence on the part of the doctor or there is any deficiency in service on the part of the opposite parties. [D.H. Kumari v. Director, Nizam 's Institute of Medical Services, 2003 (5) CLD 805 (AP SCDRC)]

13-50.10 Oncology-Liver cancer-Patient's disease diagnosed by opposite party-doctor as liver cirrhosis on 1.12.1995-Doctor advising treatment for toning up liver-Liver biopsy taken as there is increased incidence of liver cancer among cirrhosis patients-Biopsy slides shown to a reputed pathologist who confirmed on 9.12.1995 that patient was suffering from liver cancer at terminal stage-As disease not confirmed on first examination on 1.12.1995 chemotherapy not done-Ther- apy advised by doctor not be held wrong-No therapy effective medically except terminal care-Death of patient-No negligence or deficiency in service-As the disease was not confirmed on 1.12.1995, he could not have started Chemotherapy or any other treatment for cancer at that stage. On 10.12.1995 itself the doctor informed the patient as well as his relatives that the disease was extensive and also explained about the prognosis of the disease. He also advised them that nothing can be done medically except terminal care which was given.

There is no specific therapy any where in the world to treat advanced liver cancer. At the time of admission itself the doctor suggested the case be shown to a Physician, to look after the deceased as he was terminally ill. As there was extensive damage to the liver of the deceased, the patient was not put on Chemotherapy as the same is likely to cause more harm than good at that stage.

The first opposite party in his evidence states that he consulted Chemo- Therapist for giving Chemotherapy and whether this type of cancer in this extent will respond to Chemotherapy. As he would not respond to Chemotherapy the same was not resorted to and the relatives of the patient were accordingly informed. Under these circumstances the decision taken by the first opposite party cannot be faulted and the complainants are not able to establish any deficiency in service on the part of the first opposite party. [N. Nirmala v. (Dr.) NageswarReddy, 2003 (5) CLD 812 (AP SCDRC)]

13-50.11 Oncology-Breast cancer-Pathological test-Pathologist, on the ba- sis of F.N.A.C. (Fine Needle Aspiration Cytology) not giving any confirmatory diagnosis nor suggested mastectomy but his report only suggestive stating: "Duct Carcinoma should be considered"-0.P.-surgeon removing the breast without advising any further laboratory investigation or getting the patient again examined by some other doctor to confirm the report as requested by the complainant-Neg- ligence held-Rs. 63,500 awarded as compensation together with the cost of litigation-(Uttaranchal Forest Hospital Trust v. Smt. ~aisan, 2004 (1) CPJ 257 (Uttaranchal-SCDRC)]