Advising chemo without tissue diagnosis amounts to medical negligence: Commission directs Tata Memorial Hospital, doctor to pay Rs 5L compensation

Presiding Member of the Commission, Dr S M Kantikar did not rule on the aspect as claimed by the patient that she was wrongly diagnosed and clarified it as a case of contributory negligence, since the patient, Sabitari Agarwal, herself was negligent, who did not bother to collect the biopsy report.

The patient said that she had first come to the hospital from Chattisgarh on March 21, 2007 after complaining of abdominal pain and undergoing various tests. The ulcerated growths were sent for biopsy. She alleged that without waiting for the reports when she was asked to undergo chemotherapy, she went to Udaipur. She could afford only two chemotherapy cycles and also underwent a blood transfusion between the two sessions. She said that her condition worsened and she returned to Tata Memorial on June 11, 2007 where the report was finally taken. The woman said that losing confidence, she went back to Udaipur and was treated for other ailments. She said she suffered from TB, but took two chemo cycles unnecessarily.

Being aggrieved due to alleged medical negligence and deficiency in services, the patient filed a Consumer Complaint before the State Commission against the doctor and the hospital claiming Rs. 72,58,000/-.

However, she moved the national consumer commission in 2012 after Maharashtra State Consumer Disputes Redressal Commission rejected her plea. The state consumer commission had denied allegations that she was wrongly diagnosed as suffering from cancer. It had said that the oncologist had evaluated clinical reports properly and correctly and ever after discharge, a hospital in Udaipur still suspected that she was a case of carcinoma of stomach.

Before the apex consumer body, the grouse of the complainant was that she brought the biopsy of stomach growth from Udaipur, it was given at hospital for HPE study but the doctor prescribed chemotherapy without waiting for the biopsy (HPE) report. Thus, she took two cycles of chemotherapy at her home town. She developed severe complications. Surprisingly, the HPE was reported as "moderate to severe chronic active gastritis with atrophy and foveolar hyperplasia. H. Pylori organisms are noted." It was negative for malignancy.

Meanwhile, the hospital and the doctor denied the allegations. The doctor submitted that best possible professional care and skill was taken to start the patient on appropriate management in existing circumstances, when the overall picture supported gastric carcinoma. He also submitted that even the Udaipur hospital report suspected cancer. He further submitted that, "It was the fault of the patient who didn’t wait to collect the HPE report and he didn’t stay in the hospital but insisted to go to his home town, adding that she took only one cycle of chemotherapy."

Examining the case, NCDRC focused on the pivotal issue of 'was it a reasonable standard of practice to advice Chemotherapy without tissue diagnosis (HPE).' It observed;

"In the instant case, admittedly the biopsy specimen was given to the hospital on 21.03.2007, but the doctor on the basis of clinical and radiological assessment diagnosed it as a malignancy and without waiting for the HPE report advised EOX regime for the patient. The hospital at the time of discharge gave the patient a recommendatory letter for chemotherapy under the guidance of an Oncologist. It was also advised that the CBC/Liver Function Test/RFT had to be done before administering each cycle. Moreover, the contention of hospital and the doctor that the relatives of the Patient were also negligent in not enquiring about the result of HPE report, they should have enquired about it within one week about the status of the report. In my view, such contention is not tenable in the instant case."

The Commission further referred to the case of Devarakonda Suryasesha Mani & Ors. versus Care Hospital, Institute of Medical Sciences & Ors[1], in the Hon’ble Supreme Court that dismissed the appeal filed by the Complainant and held; unless the appellants are able to establish before this Court any specific course of conduct suggesting a lack of due medical attention and care, it would not be possible for the Court to second-guess the medical judgment of the doctors on the line of medical treatment which was administered to the spouse of the first appellant. In the absence of any such material disclosing medical negligence, we find no justification to form a view at variance with the view which was taken by the NCDRC.

In the instant case, the Commission observed;

"Without tissue diagnosis advising chemo was the act of omission. It amounts to lack of due care from the doctor, thus medical negligence."

It further added that;

"I find this case is of contributory negligence, because the patient herself was negligent, who did not bother to collect the biopsy report from TMC and secondly, before starting first cycle of Chemo, the concern hospital did not verify the biopsy report."

The Commission, eventually directed the hospital and the doctor to pay Rs 5 lakh jointly and severely to the Complainant within six weeks from May 23, 2023, failing which, the amount shall carry interest of 9% p.a. till its realization. It held;

"Considering the peculiar facts and circumstances of the instant case, as the incident occurred in 2007, we are now in 2023 the Complainant deserves just and proper compensation. To meet the ends of justice, in my view, Rs. 5 lakh appears to be just and adequate compensation."

To view the original order, click on the link below:

https://cms.nic.in/ncdrcusersWeb/GetJudgement.do?method=GetJudgement&caseidin=0%2F0%2FFA%2F543%2F2012&dtofhearing=2023-05-23