No Medical Negligence While Treating Grade 3 Anaplastic Astrocytoma: NCDRC Exonerates VIMHANS Hospital

New Delhi: The National Consumer Disputes Redressal Commission (NCDRC) recently set aside the order of the Delhi State Commission which had earlier directed Vidya Sagar Institute of Mental Health and Neuro Sciences (VIMHANS) to pay Rs 15 lakh compensation to the family of a patient who died of cancer after undergoing surgery at the hospital.

While the State Commission had ordered compensation for the suffering, mental pain and agony caused, the NCDRC bench opined that there was no negligence on the part of the hospital and its doctors who treated the patient suffering from Grade 3 Anaplastic Astrocytoma.

The matter goes back to 2004 when the complainant's son was suffering from headache, nausea and vomiting and consequently was hospitalized in Faridabad. A CT scan was taken and a diagnosis of brain tumour with clotting was made. Following this, an MRI was conducted, which suggested chronic infective neoplastic lesion and indicated infiltrating lesion in the right parahippocampal gyrus and inferior temporal lobe. 

About a month later, the patient was admitted to Safdarjung Hospital and the CT scan revealed a lesion in the right temporo-occipital lobe with significant midline shift, possibly due to tumour bleeding or medulloblastoma. He was managed conservatively and required neurosurgery. Despite his critical condition, Safdarjung Hospital referred the case to AIIMS, which unfortunately did not admit the patient due to capacity constraints and consulted VIMHANS for better treatment and care of Dr. Banerji, a renowned neurosurgery specialist, and former professor.

The concerned doctor advised immediate admission for surgery. Another CT scan was taken, which confirmed the earlier findings. The surgery to remove the tumour was performed by Dr Gupta and Dr Kansal and was deemed successful. Allegedly, the complainant's request to wait for Dr. Banerji's review the next day was declined.

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After the surgery, the patient developed fever that persisted for months until his death, with only brief periods of relief in September and October 2004. During this time, the patient remained unconscious, lost eyesight, and experienced paralysis on the left side. Dr. Banerji prepared discharge of the patient and prepared a referral summary of the case highlighting "Meduloblastome involving right inferior brain with bleeding and bilateral (R>L) basal ganglia damage which was treated surgically on 15.05.2004 with residual semi-comatose GCS-VI and severe quadre paresis (R>L)."

The complainant alleged that throughout the patient's stay at VIMHANS, the treating doctors maintained an overly secretive approach. They assured the Complainant by saying that they knew what was best for the patient that he would recover in a few days. It was further alleged that despite the extensive experience and reputation, Dr. Banerji failed to detect the malignancy of the brain tumors, allowing it to develop into Stage III cancer within five months of initial surgery ultimately leading to the patient's terminal illness and death.

It was submitted that early detection of the cancer could have provided scope for care and a chance for cure. Had the patient been admitted with proper care, early detection of cancer and proper treatment was possible. Therefore, the complainant claimed that the premature death of the child was due to the acts of commission and commission by doctors and the hospital. Being aggrieved and alleging deficiency in service, the complainants filed a consumer complaint before the State Commission and demanded Rs 16 lakh as compensation.

While considering the matter, the State Commission, Delhi awarded a compensation of Rs 15 lakh to the complainants for the suffering, mental pain and agony caused. The hospital, which was held vicariously liable was asked to pay this amount. Being aggrieved by this order, VIMHANS approached the NCDRC bench.

The hospital alleged that the State Commission failed to consider the medical background. The issues raised in the written statement and the medical board's report, which formed the foundation of case, were allegedly not properly considered. Further it was contended that the doctrine of vicarious liability and the observation of res ipsa loquitur were misapplied, as there was no negligence in the treatment. It was also pointed out that the hospital was not liable for any negligence as no allegation of these deficiencies were made against it.

Meanwhile, the counsel for the hospital pointed out that the State Commission had referred the case to Maulana Azad Medical College for expert opinion and the report concluded that there was no apparent negligence and highlighted that proper care had been taken as evidenced by the child's post-surgery improvement. 

The final diagnosis relied on the histopathology report, where the initial report after the first surgery didn't suggest a tumor. Based on the findings of the expert medical report, it was concluded that there was no negligence on the part of the hospital and the doctors. Referring to this, the counsel for the hospital prayed to the NCDRC to set aside the State Commission's order.

Further, he argued that the experts' report acknowledged the challenges in diagnosing tumours within the brain, even for skilled neuropathologists. It was submitted that Astrocytoma Grade 3 is a high-grade brain cancer with a dismal survival rate despite comprehensive treatments such as surgery, radiotherapy, and chemotherapy. Referring to all these factors, the hospital's counsel argued that there was no evidence of medical negligence.

Meanwhile, the counsel for the complainant argued that the doctors of VIMHANS failed to conduct proper tests and kept the patient in the hospital for five months just to make money. They failed to consult an oncologist or rule out the possibility of cancer, despite noticing continuous falls in his health condition such as loss of vision, speech and hearing and not regaining the consciousness. 

However, the complainant's counsel admitted during the argument that the doctors were giving symptomatic treatment. It was alleged that the child was operated without knowing the actual ailment and referred to the fact that even as per expert opinion, cancer was there since the beginning. Further, he argued that even though the child was brought to the hospital because of the reputation of Dr. Banerji, the surgery was not conducted by him. Despite having wide experience, he allegedly failed to overrule the possibility of any other ailment under his observation in five months.

It was further argued that the medical records reflected that the health of the patient was not in good condition and during his stay in VIMHANS, he was in serious condition. Referring to this, it was argued that medical negligence of the doctors was clearly evident from the medical documents and the omission wasn't their part to take precaution and timely treatment.

VIMHANS's counsel also contended that the State Commission lacked the authority to pass the Order as it was concluded by a single member, which is in contravention of the Consumer Protection Act, 1986, specifically Section 14 read with Section 18.

Taking note of the judgments that the hospital's counsel placed reliance upon, considering the summary procedure under the Act, with due regard to completion of pleadings in the case on two occasions, including before NCDRC in this Appeal, and the delay involved in again rehearing the matter before the learned State Commission, the top consumer court opined that the Appeal is being passed on its merits.

According to the top consumer court, the main issue for consideration was whether the allegation of negligence against the hospital and the doctors was established. At this outset, it noted,

"Medical negligence is a complicated subject, and the liability of a doctors’ in such cases depends upon the facts and circumstances that are brought on record. There may be cases of apparent deficiency/negligence in service by the doctors which is direct and conspicuously visible. Whereas, the others require critical evaluation. In any case, a doctor is expected to take due care and caution while giving timely treatment as per the established norms of medical jurisprudence. That is to say, if the doctors have acted as per the medical practices and procedures which are accepted as proper and standard by a responsible body of medical men skilled in that particular art, no deficiency arises."

The NCDRC bench referred to the medical history of the patient and the allegation of the complainant that Dr. Banerji failed to detect malignancy of the brain tumour which led to delayed detection, ultimately leading to the patient's death.

The Apex consumer court noted that the State Commission had called for expert opinion from Maulana Azad Medical College. The Expert Committee Report from Maulana Azad Medical College dated 29.07.2010 consisting of professors of Neurosurgery, Radiotherapy, Pediatrics and Pathology observed that the patient, suffering from Astrocytoma Grade III, was presented in an unconscious state and was managed efficiently at VIMHANS. 

"All care was taken in his management which is evident from the fact that the child improved after first and second surgery. The inability to pick up cancer on first pathology was due to technical reasons rather than negligence. The second biopsy reported by the same pathologist diagnosed Astrocytoma grade III which was subsequently treated at Batra Hospital. Based upon the ‘observations on records and clinical course of such disease, the board is of the Opinion that there is no prima facie negligence in this case," opined the NCDRC bench.

Referring to the expert opinion the Commission further observed, "The expert opinion in the case by Maulana Azad Medical College revealed that the diagnosis of tumour may pose several challenges in brain even to expert Neuropathologists. A highly vascular tumour which has several blood vessels in it may mimic arteriovenous malformation (AVM), which was the first histopathology report in this case. Moreover, the sample of the suspected tumour tissue of the location where the surgery was done and sent to pathologist may not be the that of actual location. If tissue happens to be from the periphery of the tumour and has several blood vessels in it, it may mimic AVM. In the presence of bleeding in the tumour, which happened in this case, the diagnosis of astrocytoma may be missed."

Further, the top consumer court also referred to several judgments by the Supreme Court including in the case of Jacob Mathews v. State of Punjab and opined that the hospital was not negligent while treating the patient.

"...the Complainant’s son was the patient who is a 11 years old boy and was diagnosed with Grade 3 Anaplastic Astrocytoma and unfortunately succumbed to the illness within six months of diagnosis. When he was referred to and admitted in VINHAMS Hospital, the patient was already in a critical state. The doctors and the hospital performed their duty with reasonable care. The expert opinion supports the notion that the initial non-detection of symptoms of cancer was due to technical factors rather than negligence. While the death of the patient at very tender age of 11 years is very unfortunate, he was in critical condition with multiple medical conditions. Considering the entire facts and circumstances of the case, in our considered view, there is no reason disagree with the said independent and comprehensive medical opinion. The allegation of medical negligence on the part of the hospital and its doctors is unsubstantiated," noted the top court bench.

With this opinion, the top consumer court set aside the State Commission's order of directing VIMHANS to pay Rs 15 lakh as compensation.

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

https://medicaldialogues.in/pdf_upload/ncdrc-vimhans-no-medical-negligence-226600.pdf

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