New Delhi: The National Consumer Court while exonerating a doctor accused of operating a cancer patient without obtaining a biopsy report observed that not every death in hospital amounts to medical negligence on a hypothetical assumption of deficiency in service by the doctor. The Apex Consumer Court that the doctor could not be held negligent as he has performed an excisional biopsy to confirm cancer which does not come under the purview of surgery. Also excisional biopsy is a prescribed method to diagnose cancer.
Brief facts of the case are that complainant consulted the doctor at his Nursing Home &Maternity Centre as his wife complained of stiffness and pain in her left breast. Her Thyroid tests for T3, T4, T5, and TSH were conducted and she was admitted in the Centre. A tumour operation was performed on her left breast, during which the portion of the breast containing the tumour was removed. Thereafter, the tumour was sent for a biopsy test. However it is being alleged by the complainant that the doctor did not conduct a biopsy test before the operation. Instead of improving, the deceased’s condition worsened after the surgery, with increased pain in her breast and waist, and her overall condition deteriorated. It is being alleged that the doctor said that he had performed a major operation, which was actually a minor procedure involving eight stitches. The complainant alleged that in the next follow-up the doctor mentioned that he had removed half of the breast tumour and that complete removal would cure her. Subsequently the patient experienced increased waist pain for which she was referred to Dr. Iqbal Pervej, an orthopaedic, who reviewed her sonography and X-ray reports and prescribed medication. Subsequently, the biopsy report confirmed that she had cancer. She was referred to Sanjeevani Cancer Hospital at Raipur for further treatment. She underwent treatment at various hospitals but could not be saved. The complainant alleged that if the doctor would had initially conducted a biopsy, her deceased wife would not have faced such severe issues. Also the doctor though not being a cancer specialist did not refer her to a higher cancer hospital after conducting biopsy. This failure constituted medical negligence. The Complainants filed a Consumer Complaint and sought compensation of Rs.75,10,000 for medical expenses, mental agony, financial losses, and litigation costs.
The doctor on the other hand submitted that the patient and her relatives were thoroughly explained and assisted at every step, both before and after the diagnosis of cancer. Further the doctor submitted that as soon as he became aware that she had cancer she was referred to a hospital specializing in cancer treatment. The doctor stated that before excisional biopsy proper consent was taken from the patient. Also no expert medical opinion has been obtained by the complainant that has held him negligent. Therefore, there is no professional misconduct or breach of trust on the part of doctor. The doctor further submitted that the patient treatment was conducted with proper diligence and in accordance with ordinary medical practice and hence he was not negligent.
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The Court observed that the doctor had performed only excisional biopsy to confirm cancer, which is a prescribed method to diagnose cancer. The complainant has failed to reasonably establish that the surgery by the doctor was without obtaining biopsy report. The court observed that as the doctor had done only excisional biopsy of the deceased patient the same cannot be considered as surgery. Also, before conducting the said excisional biopsy, the doctor has obtained consent letter from the patient and the complainant. There is also no expert opinion obtained from the competent Medical Board. Considering the aforesaid discussions, there is no evidence on record to suggest any negligence or deficiency in service on the part of doctor in the treatment of the deceased patient and hence the court disposed of the complaint.
