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Judgment
THE first complainant is the wife of second complainant and the complainants 3 to 5 are their children. She complained of acute pain in her knee joints. After conducting necessary tests Dr. G. Narasimhulu, Rheumatologist diagnosed that she was suffering from ''Osteo Arthiritis'' of the bones and hence she underwent treatment for the said problem till 11.9.1997. Meanwhile she developed a painful lump in her left breast. Dr. Narasimhulu referred her to Dr. G. Suryanarayana Raju, Surgical Oncologist of oncology division of the opposite party, hereinafter called ''the doctor'', who on examination advised her to have a Fine Needle Aspiration Cytology (FNAC) test for left breast. She accordingly underwent the test at the pathology department of the opposite party. THE report was shown to the doctor on 17.9.1997 whereupon he advised her to have Mammogram of her left breast from Apollo Hospital, Jubilee Hills, Hyderabad. He advised her to get herself admitted as in-patient for operation of the breast. He also informed her husband that she was suffering from cancer of the left breast and that surgical intervention was necessary. Accordingly, she was admitted on 18.9.1997 and mastectomy was conducted on 19.9.1997 and her left breast was totally removed. THE doctor furnished two reports of the Histo-pathology Department which did not record the existence of any cancer or carcinoma.
THE first complainant became mentally wreck due to physical disfigurement for the loss of her breast and lost interest in life. THE second complainant submitted FNAC slides pertaining to the first complainant''s Mastectomy to the National Institute of Nutrition for their opinion and the said Institute opined that there was no cancer and she was wrongly operated upon for Mastectomy as she suffered abscess in the left breast. Hence the complainant filed this complaint claiming a compensation of Rs. 20 lakhs. In the written version filed by the opposite party, it is stated that after conducting necessary tests on the first complainant it was felt that the painful lump in her left breast be removed pursuant to the reports received in FNAC test at the pathology department of the opposite party. The doctor rightly advised the first complainant to have a Mammogram of her left breast from the Apollo Hospital, Hyderabad and on obtaining the consent of the first complainant and her attendants removal of her left breast was planned. The Director of NIMS obtained remarks from Dr. K.S. Ratnakar, Head of the Department of Pathology who justified removal of the breast. There is no negligence on the part of the opposite party hospital.
The first complainant was examined as P.W. 1 besides marking Exhs. A-1 to A-10. The opposite party also filed the affidavit evidence of its Executive Registrar besides marking Exhs. B-1 to B-26 which are the case sheet and the remarks submitted by Dr. Ratnakar.
THE point, therefore, that arises for consideration is whether there is any deficiency in service on the part of the opposite party, if so to what extent ? THEre is no dispute that the doctor examined the complainant on 12.9.1997 as seen from Ex. A-4. He noted there that the complaint of pain and swelling left breast. Painless slow growing. No nipple discharge. No family history of breast cancer. Left breast subareolar swelling. He advised mammogram. On 17.9.1997 FNAC was done and the report shows positive for malignant cells. THE pathologist also commented that cellular (sic) show numerous neutrophils, foamy histiocytes, apocrine cells, multinucleate cells and a few anucleate squamous cells. THEre are cells with mitotic activity and the features are consistent with Carcinoma-breast. In view of this report the doctor advised mammogram as seen from Ex. A-4. It is also admitted in the complaint that the patient was advised to have mammogram of her left breast from the Apollo Hospital, Jubilee Hills, Hyderabad. THE complaint is silent why the said test was not undergone by her. Be that as it may. In view of the Cyto Pathology report Ex. A-5 the doctor advised her to undergo Modified Radical Malicites. The learned Counsel for the complainant submits that basing on Ex. A-6 discharge record which shows that left breast examination showed 2x2 cm. subareolar swelling, hard, freely mobile not fixed to skin, not fixed to chest wall. Nipple and areolar normal. In view of these features carcinoma need not be suspected. He further relies on Ex. A-7 histopathology report dated 1.10.1997 which shows that on examination of Mastectomy specimen measuring 25x14x2 cm. with skin attached measuring 7x4 cm. with nipple and aereola, the features are consistent with subareolar abscess, left breast and thus he submits that it is a case of subareolar abscess and no carcinoma is suspected. He draws support from Ex. A-8 which is the histopathology report wherein the following comments are found : "Micro : Multiple sections studied from the breast. There is a lesion in the subareolar region composed of central area of necrosis, dense infiltration by lymphocytes and plasma cells. The ducts show destruction of lining epithelium with regenerative changes. Adjacent ducts show papillomatosis. Rest of the areas show evidence of fibrocystic disease. The features are consistent with subareolar abscess, left breast."
Hence the learned Counsel for the complainant submits that there is no evidence of any malignancy. Not only this the second complainant also collected FNAC slides and obtained report from National Institute of Nutrition, Hyderabad which aslo confirmed that there is no evidence of any malignancy in these two slides.
THE opposite party contends that without making the concerned doctors and the Pathologist as parties the complaint is not maintainable. THEy relied upon the judgment of the National Commission reported in 2002(4) ALT page 49 (NC) is wherein it is stated that unless the doctor is made a party vicarious liability cannot be fastened to the hospital. In this case also the doctor is not made a party. THErefore, this decision is squarely applies to the facts of this case. Non-joinder of the doctor as a party to the complaint is, therefore, fatal to the maintainability of the complaint as such the complaint has to be dismissed in limine. As already seen though the doctor advised Mammogram from Apollo Hospital, Jubilee Hills, Hyderabad the complainant did not obtain the report. Whatever be the reason an advice was given by the doctor. In Ex. B-26 Dr. K.S. Ratnakar, Professor and Head of the Department of Pathology submitted his remarks to the reference made by the Executive Registrar stating as follows : "The Mastectomy specimen reported on 1.10.1997 was grossed thoroughly. The lesion in the subareolar region was composed of central area of necrosis, dense infiltration by lymphocytes and plasma cells. The ducts showed destruction of epithelium with regenerative changes. Adjacent ducts show papillomatosis. Rest of the areas showed evidence of Fibrocystic disease. These features were consistent with subareolar abscess."
It is further stated that the presence of Mitotic activity is an important feature of malignancy. He referred to Koss LG, Aspiration Biopsy Cytologic Interpretation and Histologic Bases, IGAKU-SHOIN Ltd., Page 76-80, 1984. He also further submitted that cytology smears were discussed in the Department and consensus was Carcinoma. He further mentioned that subareolar abscess can have cytology because of a typical ductal cells and exuberant grannual tissue. This can lead to a false positive diagnosis. He referred Comprehensive Cytopathology, WB Sauders Co., page 709 and as such this cannot be called as negligent act. The report and authorities cited therein point out that there is evidence of carcinoma and as such there is no negligence on the part of the doctor in opting for surgery.
NO doubt histopathology reports show that there are features of consistent with subareolar abscess. In the text cited above at page 709 under heading Subareolar Abscess it is observed that "with the presence of nipple retraction and a mass, the lesion can be clinically confused with a neoplasm such as adenoma of the nipple or breast carcinoma". It is further observed that "Subareolar abscess of the breast demonstrates some of the potential diagnostic pitfalls for a false-positive diagnosis of malignancy that can occur in any inflammatory process including those involving the breast. These include the presence of groups of a typical ductal cells squamous atypia and fragments of exuberant granulation tissue. Four of our initial eight cases demonstrated some of these findings which could potentially lead to a false positive diagnosis of malignancy, if the other cytologic features of subareolar abscess were not appreciated. A ruptured epidermal inclusion cyst arising in the skin of the breast shares similar cytologic and histologic features with subareaolar abscess, but the peripheral location of the epidermal inclusion cyst should clearly separate that lesion from the central subareolar abscess".
FROM this it is clear that subareolar abscess can be very often confused for false positive diagnosis of malignancy. In view of these circumstances we cannot reach the conclusion that there is negligence on the part of the doctor or there is any deficiency in service on the part of the opposite parties. The complaint, therefore, fails and is accordingly dismissed, but in the circumstances without costs. Complaint dismissed.