Facial cancer surgery without confirmed diagnosis: Rs 55 lakh compensation slapped on hospital, oncology surgeon, pathologists

New Delhi: Upholding the State Commission's order, the National Consumer Disputes Redressal Commission (NCDRC) has held a Ludhiana-based hospital, its oncology surgeon, and pathologists at a medical college liable for medical negligence, over the performance of a radical facial cancer surgery on a patient without a confirmed diagnosis.

The case goes back to 2014 when the patient, a dentist by profession, noticed a small lesion on her right cheek. She underwent an excision biopsy at Mediways Hospital, Ludhiana, during which a small tissue sample was removed for examination. The biopsy specimen was sent to Dayanand Medical College (DMC) for histopathological analysis.

Consequently, a pathology report was issued by the institute on August 2, 2014, and it said that the findings were "suggestive of malignant melanoma", a serious type of skin cancer. However, the report clarified that further tests, including IHC markers, were required before confirming the diagnosis.

Allegedly, despite such findings, the surgeons at Mediways Hospital proceeded to perform radical surgery on August 7, 2014. During this procedure, a wide excision was made of the facial tissue, and lymph nodes in the neck were removed. This resulted in permanent disfigurement and complications for the patient.

Earlier, while considering the matter, the State Commission, in its 2018 ruling, had found the pathologists at the medical college had been negligent for issuing a tentative diagnosis without confirmation. Further, the Commission held Mediways Hospital and its surgeons responsible for performing irreversible surgery without certainty of malignancy.

Back then, the State Commission had awarded Rs 55 lakhs as compensation to the patient, along with 9 per cent interest. It had directed the treating hospital and its surgeons to pay Rs 45 lakhs. On the other hand, the medical college and its pathologists had been directed to pay Rs 10 lakh compensation.

Multiple appeals had been filed against the State Commission's ruling. The patient had also filed an appeal before the Apex Consumer Court for an enhancement of the compensation awarded to her in the matter. She argued that the surgery was performed in haste, and it resulted in permanent trauma to her. Therefore, she argued that she should be awarded at least Rs 95 lakhs as compensation.

The complainant further argued that because of the unnecessary surgery, her nerves got damaged and the damage travelled to her upper lip. Due to this, she could not smile or laugh, and the blinking of her right eye was also affected. According to the complainant, she had to undergo corrective treatments at a hospital in the USA, adding to financial constraints. She also claimed that her professional career as a dentist had been affected.

Meanwhile, the treating hospital and the medical college where the test had been conducted also filed appeals and questioned the State Commission's findings against them.

Observations by NCDRC:

In its order, the Apex Consumer Court agreed with the State Commission, observing that the surgery was carried out based on a tentative pathology report without waiting for the mandatory confirmatory tests, such as immunohistochemistry (IHC) markers or a second pathological opinion.

Further, the Commission noted that subsequent expert reviews, including an assessment by a medical board constituted at the All India Institute of Medical Sciences (AIIMS), did not find conclusive justification for the radical cancer surgery.

While NCDRC acknowledged that some facial surgery may have been required to remove the mole found on the patient's cheek, which later turned out to be non-cancerous, the Commission held that in any case, the surgery conducted on the patient would not have been as drastic had the doctors waited for confirmatory reports on the extent of the suspect malignancy of the mole.

"However, we would like to put in a caveat here that going through the various reports that have been discussed and have also been discussed by the State Commission, we find that even though there was a doubt about the malignancy as diagnosed, but there seems to be an opinion and also supported by medical literature that in spite of the absence of malignancy, a wide excision was necessary even for the diagnosed Spitz Nevus. However, once again the extent and width as well as the depth of such an excision was dependent on a confirmatory report and therefore also if such confirmatory reports had been made available prior to the surgery, quite possibly the complainant may not have had to undergo the extent of the surgery that was performed," observed the Commission.

"The consequences of such a surgery have also impacted the complainant. The damage to the muscle, the nervous system and of course the facial looks of the complainant have definitely been grossly affected as is evident from the post-surgery treatments undergone by the complainant, leading up to the surgeries performed at John Hopkins Hospital, USA. The reports from the DMC, the Fortis Hospital and other neurological experts does indicate that the nerves have been damaged. Her normalcy therefore is in a way substantially irretrievable. She has therefore undergone the trauma of a subdued life due to the aberrations which is likely to continue subject to any treatment in future," it further noted.

Even though the Apex Consumer Court upheld the State Commission's findings of medical negligence, it found no reason for enhancing the amount of compensation. The Commission found that the patient had consented to the hastily conducted surgery.

However, it also held that there was still partial medical negligence on the part of the pathologists and the treating surgeons of the hospital in conducting the surgery.

At the same time, the Commission also noted that the involvement of one surgeon was limited to giving inputs for the surgery and there was no conclusive evidence to establish his participation in the surgery or hold him liable for it.

The Commission, therefore, refused the patient's plea for enhanced compensation, noting that she could not claim to be unaware of the consequences of the surgery.

Even though the Commission did not enhance the amount of compensation, considering the medical negligence involved in the case and the trauma undergone by the patient after that, NCDRC enhanced the litigation costs payable to the patient from Rs 55,000 to Rs 5 lakhs.

It also clarified that the insurance companies impleaded as parties in this case were only liable to the extent specified in the insurance policies.