Surgeon, UP Hospital told to pay Rs 50 lakh compensation over wrong diagnosis, treatment of breast cancer patient

Commission members justice Rajendra Singh, and justice Sushil Kumar observed that the concerned doctor failed to diagnose the breast cancer and due to his negligence and carelessness, medicines were given for another disease (Filaria) for a long time. Meanwhile, the cancer cells continued to increase which ultimately caused the death of the patient.

The case is that, in 2012, a patient Geeta Devi Dwivedi along with her husband with complain of a very small lump under the left armpit and inside the left breast with a little bit of pain visited the doctor who is a general surgeon in the said hospital. As advised by the doctor, Ultrasound and Mammography of both the breast of the patient was done. The doctor diagnosed the lump as disease of filaria and started the treatment of filaria and prescribed medicines for 21 days and asked the patient to visit after 21 days.

The condition of the patient started deteriorating and the pain in the lump increased and redness and swelling spread in the left breast with inflammation in the left breast. The patient again visited the doctor, however, he repeated the same medicine for next one month.

Within a week, the condition of patient became worse and blackness, hardness and swelling spread in the right breast also and swelling and pain in both the breast was continuously increasing. Once again, the doctor repeated the same medicines for next seven days.

The deteriorating condition of patient and unbearable pain in both the breast made complainant and patient apprehensive about the treatment given by the doctor and they consulted Dr. H.S. Shukla, Cancer Specialist at Sir Sunder Lal Chikitsalay, Kashi Hindu Vishwavidyalay, Varanasi and showed him all the prescriptions.

After preliminary examination, the patient was advised to visit Tata Memorial Hospital at Mumbai immediately. At Tata Memorial Hospital, after conducting various tests breast cancer in the last stage was diagnosed by the doctors. It was also informed by the doctor at Tata Memorial Hospital that the cancer has spread to other parts of the body also like in lever, heart, lungs and bones of hands and legs.

Thereafter, chemotherapy was started, however, after fifth chemotherapy condition of patient became worse and she finally died in 2013.

Accusing the hospital management of neglect, the kin of the deceased lodged a complaint with the commission in 2015. They sought monetary relief amounting to total Rs.5,610,000/- for various heads.

It was submitted that the lump growth was cancerous in July, 2012 when patient had first visited the doctor but due to wrong diagnosis and treatment of the doctor and radiologist, the patient suffered and her disease became uncurable. Further, the doctor has committed gross negligence by overlooking deteriorating condition of the patient.

"The law expects a duly qualified doctor to use that degree of skill and care which an average man of his qualifications ought to have and in this case the doctor and the hospital failed to do so. The conduct of the doctor and the hospital, clearly reflects that they had been negligent and ignorant from the very beginning. The hospital and the doctor did not take proper care in diagnosis of the lump even when it was spreading all over the breast and failed to bring to their task a reasonable degree of skill and knowledge," the complainants added.

On the other hand, the hospital and the doctor filed their written statement stating that there was no medical negligence or deficiency in service on their part.

Perusing all the pleadings, evidences, arguments and documents on record the Commission firstly observed that the medicines prescribed were tablet Banocide forte, Levoflox 750 mg, Cap Cobadex forte and Tab Tramodol 50mg. However, none of these medicines were for breast cancer but for Filaria. It is clear that till 17 September 2012 the concerned doctor was treating the patient as if she’s a patient of Filaria but not of breast cancer, the court concluded.

The Commission further noted that;

"In the instant case the report of Mammography was there and inspite of it the concerned doctor failed to diagnose the breast cancer and at that time it was not very serious and may be cured but due to his negligence and carelessness, medicines were given for other disease for a long time and during this period the cancer cells continue to increase and they also spread other breast and other parts of the body which ultimately caused the death of the patient."

Opining that the instant case comes under the maxim res ipsa loquitur, the Commission observed that;

"Opposite party – 1(Hospital) and 2(Doctor) were careless in the treatment of the patient who ultimately died of breast cancer on 08.05.2013 just at the age of 44 years. We have discussed the Mammography in the very beginning and this report clearly indicated the possibility of breast cancer but the concerned Dr did not go forward for breast cancer and he took it very lightly presuming it to be a disease of Filaria . From so many dates he never came to understand the problem of the patient and wrote prescription in a stereotype manner without going to the root of the disease. Here circumstances speak themselves that the doctor was careless in toto."

It added;

"The primary responsibility of a doctor is to ensure they can provide their patients with the best level of care. A talented doctor can perform these tasks efficiently while practising a range of soft skills, such as effective communication. When considering a career in medicine, it may be helpful to know the basic duties a doctor performs daily."

The court further remarked;

"In this case, the doctor has said that if the complainant had any interest from the very beginning or they had lost faith in him at any point of time during their visits, as mentioned in the complaint, they could have consulted any other doctor. The complainant has stated these words when he came to know that his wife was suffering from breast cancer and the treatment was given that is of Filaria , thereafter he reiterated these words. But opposite party – 2 is a doctor and it was his primary responsibility to satisfy the patient and if he found that the medicines were not responding well and as per the report of Mammography, there might be some chance of breast cancer, he would have referred the patient to the oncologist for his opinion but he did not do so. The patient has faith in Dr and he visited the doctor again and again on the advice of the doctor. When the doctor has asked him to come after some date for follow-up checkup, he must come for follow-up checkup but when ultimately he believes that there is no improvement in the health of his wife, he will take any other recourse for further treatment. But it is the doctor whose primary responsibility is to satisfy fully the patient who has come before him. As per tests and reports of Ultrasound and Mammography, there was indication of cancer because the size of the lymph node et cetera indicate the possibility of cancer and the matter is related to the breast and as we know breast cancer is very common so it was the duty of the concerned Dr to take the opinion of oncologist at the earliest in which he failed totally."

After going and considering all the facts and circumstances of the case, the consumer body noted;

"It shows that there was negligence at the primitive level. So the first responsibility was opposite parties – 1(Hospital) and 2(Doctor) to examine the patient with great care and caution and it should have been referred to oncologist for the confirmation of breast cancer which they did not to or in other words they did not discharge their duty with responsibility and loyalty. The doctor is responsible for showing negligence and carelessness and the hospital is vicariously liable for the acts and omissions of the doctor. Thus opposite parties – one and two are responsible for showing evidence towards the patient. Opposite party – 3(Radiologist) has no role in negligence or carelessness because he is radiologist and he performed his duty and submitted the report to the concerned Dr/patient."

Subsequently, the Commission directed the hospital and the doctor to pay Rs.50 lakhs to the complainant towards cost of medical expenses, mental agony, physical pain, depression and harassment, loss of income and companionship, cost of litigation with interest. It held;

"It is clear that negligence has shown by the doctor, we are of the view that complainant is entitled for total compensation of Rs.50 lakhs with interest at a rate of 10% per annum from 07.08.2012 payable within 45 days from the date of judgment of this complaint otherwise the rate of interest shall be 15% per annum payable from 07.08.2012 till the date of actual payment. The complaint case is decided accordingly."

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

http://cms.nic.in/ncdrcusersWeb/GetJudgement.do?method=GetJudgement&caseidin=14%2F0%2FCC%2F425%2F2016&dtofhearing=2023-02-22