NEELAM RAMASWAMY vs CHURCH OF SOUTH INDIA HOSPITAL

THE complainant in COP No. 65/2001 on the file of the District Consumer Disputes Redressal Forum, Chengalpattu, is the appellant herein. This is a case complaining of medical negligence. THE complainant''s father aged about 50 years was a weaver and sole bread winner of the family. On or about 20/1/2001, he complained of acute pain in the thigh. He was referred to DKK Hospital at Kanchipuram. Cerrtain tests were advised. THEreafter, the complainant got his father checked by the 1st opposite party hospital in which he was admitted as an in-patient on 28/1/2001. THE 2nd opposite party attached to the 1st opposite party hospital instructed the complainant''s father to attend EMMES Ultra Sound Scan Centre, Kanchipuram to get abdominal scan. THE report showed normal liver, normal gall bladder, normal pancreas, normal spleen and normal kidneys. THE bladder was also normal and no enlarged prostate was noticed. THE complainant could not understand why an abdominal scan was taken when the swelling was found on the left thigh of the leg. On 31/1/2001, an X-ray was taken of pelvis both hips and skull. No opinion was given on the five X-rays taken. Apparently, the X-rays taken did not reveal any adverse clinical comments. Another X-ray was taken of the chest on 6/2/2001 at the 1st opposite party hospital. No report having been furnished, this could also be taken to be normal. One more X-ray was taken of the left hip joint on 10/2/2001. As per the discharge summary given, it could be seen that between 30/1/2001 and 10/2/2001 the patient underwent an operation on 5/2/2001 for an alleged fracture in the first opposite party hospital supervised and assisted by the 2nd opposite party and operated upon by the 3rd opposite party. THE discharge summary stated that a steel plate was fixed on that portion where the swelling was seen. After four days, sutures were removed. THE patient was discharged on 13/2/2001. A bare look at the X-ray taken on 10/2/2001 would show that the plate and screws had not been done properly. It revealed that fixation of screws was hazy and uncertain. According to the report of CSI Kalyani Multi-Speciality Hospital, Chennai, a specimen of Left Femur Necrotic Bone and soft tissue was taken for biopsy for further test from the complainant''s father''s body. THE date of collection according to the findings of CSI Kalyani Hospital was 6/2/2001. THE biopsy report informed that Micro Multiple Sections showed proliferating fibroblasts with dilated vascular channels reactive osteoid rimmed by osteoblasts and focal area showing highly pleomorphic ligament Mesenchymal cells with tumour osteoid abnormal mitosis and large areas of haemorrhage. THE impression was suggestive of osteogenic Sarcome secondary. On the reference made by the 1st opposite party hospital to get a CT scan from Chengalpattu Medical College Hospital on the thorax portion of the body of the patient the said hospital had given a report on the thorax portion of the patient. THE impression was not adverse. On the instructions of the 1st opposite party hospital to attend the Cancer Institute at Government Arignar Anna Memorial Cancer Research Institute, Kanchipuram, the patient was admitted on 2/3/2001 and discharged on 14.3.2001 as per the hospital receipts. THE O.P. slip suggested amputation of left thigh together with peripheral portion of the body of the patient. THE patient was not for it because of complication created by the opposite parties already. THEre was thus mishandling of the entire situation on the patient by the opposite parties. THE X-ray report dated 2/3/2001 showed the remarks as loose nail was found from the fixation of pathological fracture seen in the soft tissue plane. It would thus be seen that proper care had not been taken before the operation and also after the operation and this amounted to gross deficiency in service. It could clearly be seen that the bones could not withstand the surgery which resulted in the death of the patient on 5.4.2001 after undergoing severe mental and physical pain. THE reasons for the following were not known, (1) why X-rays were taken was not known and why they were taken on the thorax and skull portion of the patient, (2) why the specimen of biopsy was taken on 6/2/2001 instead of 5/2/2001, the date of operation and that would have stalled the operation itself, (3) the reason why the operation was done even though it was not known that the patient had osteogenic sarcoma, which meant malignant tissue above the bone known as early as 20/8/2000, (4) the reason why the screws of the plate went shaky and came out as evidenced by the X-ray taken on 2/3/2001 at the Cancer Hospital, Karapettai, Kanchipuram. Thus there was deficiency in service. THEre was a notice issued on 28/3/2001 calling upon the 1st opposite party hospital to compensate the complainant to the extent of Rs. 3 lakh.

THE 1st opposite party, through an advocate, informed the complainant that the claim was highly excessive thereby accepting deficiency in service. THE complaint came to be filed claiming a total sum of Rs. 3,33,086 under various heads. The 1st opposite party filed a version denying the various allegations. The 1st opposite party was a service oriented organization doing service to the needy people for over 93 years. The case sheet of the hospital and discharge summary furnished to the complainant''s father would reveal the entire true facts. All clinical investigations necessary for the correct diagnosis were done by the 2nd and the 3rd opposite parties. The surgery was done with great care and caution. There was no deficiency in service.

The 2nd opposite party filed a version disputing the various allegations and stating further as follows: He examined the patient on 28.1.2001 with a complaint of swelling in the left thigh near the hip joint with a history of attending to private hospital of plastic surgeon Dr. T. Chandrasekar. The patient informed the 2nd opposite party that he sustained fracture in the left femur and so he abandoned that hospital and came to the 1st opposite party on his own volition. On examining the patient, the 2nd opposite party suspected some bone disease, probably cancer with fracture in the left femur. After completing relevant investigation, the 2nd opposite party asked the 3rd opposite party the part-time ortho consultant. There was a surgery done and biopsy was also done. The 2nd opposite party assisted the 3rd opposite party in this process. They got the biopsy report as cancer and referred the patient to the Cancer Institute. Since the fracture was an emergency one, surgery was done on the patient. During surgery, the bone was fragile in some area and hard in some area and so biopsy was taken and after getting the biopsy report the patient was referred to higher speciality treatment in the Cancer Hospital. The surgery was done by the 3rd opposite party with utmost care and caution. The patient was extremely comfortable and happy and free from any pain during his stay in the hospital. From the biopsy report, the 2nd opposite party came to know that the patient was suffering from osteosarcoma, a type of bone cancer and therefore he was referred to the Cancer Institute. The said disease was a fast spreading and potentially very dangerous one. Because of the severity of the disease, the nail and screws could have become loose and not due to the operation defects during the surgery. The 3rd opposite party had received Rs. 6,000 for the surgery which included fees for the 2nd opposite party as well. The case sheet and history of the patient record would prove the correct diagnosis and correct operation of the patient by the opposite parties. There was no deficiency in service.

THE 3rd opposite party filed a version denying the various allegations and further stating that the surgery had been done properly and keeping in mind that the disease might turn to be bone cancer (osteosarcoma 1% chance). Investigation was done to find out any spread to other areas. After verifying that there was no extra spread of the disease and the patient was very much suffering from painful fracture, the 3rd opposite party decided to fix the fracture with plates and screws, a standard procedure for such cases. THE surgery was done properly by the 3rd opposite party with the assistance of the 2nd opposite party. After obtaining the biopsy report, the patient was explained about the possibility of the cancer disease and he was referred to the Cancer Institute for further treatment. THEre was no deficiency in service. Before the District Forum, on the side of the complainant Exs.A-1 to A-21 were marked while on the side of the opposite parties Exs. B-1 to B-9 were marked.

THE District Forum found that there was no deficiency in service on the part of the opposite parties. THEy had done the surgery properly. THEy suspected cancer after the clinical examination of the patient since they felt that the disease would have spread to other portions also. X-rays were also taken and biopsy was done and sent for test. But for all these elaborate tests, it would not have been possible to find out the cause of the disease. Only after the biopsy test, it was found that the patient was suffering from osteosarcoma. He was referred immediately to Arignar Anna Memorial Cancer Institute, Kanchipuram on 2/3/2001 and his histo-pathological report revealed osteosarcoma predominantly. This report is marked as Ex. A-7. Elaborate examination of the complainant''s father had been done by several doctors and the maximum medical attention had been given to him. All precautions had been taken. THE surgery was done only in the interest of saving the patient. THE opposite parties could not be blamed for going ahead with the surgery as the fractured bone could not be kept without treatment till the cancer treatment got completed. In that view of the matter, the District Forum, by order dated 6.12.2001 dismissed the complaint. It is as against that the present appeal had been filed. Mr. Selvan Babu, learned Counsel for the complainant/appellant vehemently submitted as follows: The 2nd opposite party, after examining the patient, had suspected that the patient might be suffering from Paget''s disease/osteosarcoma. He had recorded that the thigh portion had soft tissue sarcoma. Based on this observation, he had immediately recommended further tests and also suggested obtaining the opinion from the 3rd opposite party an ortho surgeon. At that stage itself, the 2nd opposite party ought to have directed biopsy or the opinion of an oncologist. The 2nd opposite party further advised X-ray of other areas and confirmed that the disease had not spread to other areas like pelvis, skull, spinal cord, etc., and found that the suspected osteosarcoma was confined to femur bone and it had not spread to other parts of the body. This was material evidence to establish that due to the careless surgical procedure, cancer rapidly spread to abdominal area within a month, the X-ray taken at the Cancer Institute being the proof, which resulted in the death of the patient. What happened subsequently was a serious blunder and negligent act and patent error in judgment and haste unmindful of consequences on the part of the opposite parties with a calculated motive to benefit from the process. The opposite parties did not wait for the result to confirm sarcoma before conducting the surgery. Based on the X-ray and by bio-chemical reports, it was mandatory to have performed the biopsy prior to the surgery. The opposite parties, after six days of hospitalization, ended up in fixing the plate and screws upon the already fragile soft bone tissues as if the patient was being treated for normal bone cancer. No precaution was taken to isolate or remove the live/good tissues, the blood vessels in and around the cancerous bone to ensure that the disease would not spread to other parts of the body. The District Forum failed to consider the fact that the opposite parties did not produce any evidence to show that the surgery was successful and patient was cured. It was not correct to say that the opposite parties performed the surgery hurriedly only to save the patient''s pain. In fact the surgery was performed only after a week after admission. Many sedatives and narcotics were available and suggested by medical textbooks for pain relief. The opposite parties ought to have taken proper decision in this regard and after careful planning and consultation with an oncologist proceeded further. The opposite parties contended before the District Forum that they performed the surgery as an emergency as if they discovered Paget''s disease and osteosarcoma only while performing the surgery. There was a clear admission by the 3rd opposite party that they had explained to the patient about the possibility of cancer disease even during surgery and after the surgery and to the complainant''s family members. This would clearly show that the opposite parties were aware of Paget''s disease and soft tissue sarcoma as evidenced from the records, but failed to properly evaluate the condition in consultation with an oncologist before the surgery. They never whispered anything about Paget''s disease or cancer either to the complainant or to the patient before the surgery. Though they had suspected the same, they never confirmed the same by needle biopsy. It was also absurd to plead that the opposite parties informed the patient about osteosarcoma daring surgery when he was under anaesthesia and was not in a position to either understand or appreciate or take a decision as to what to instruct since he was lying on a surgical table with his thingh cut open. The 3rd opposite party had stated that he came to know about the osteosarcoma only after biopsy. This amounted to negligence. Again, fixing of plate and screws in the case of Paget''s disease with osteosarcoma was against the recommended procedure. The learned Counsel also relied on medical literature in this connection. The District Forum failed to appreciate the correlation between Paget''s disease with osteosarcoma and the resultant fracture which fact was obviously discernible even from X-rays and which fact the opposite parties had grossly overlooked in their zeal to perform the surgery by treating it like a normal fracture and in the process spread the already fast spreading natured osteosarcoma to other parts of body resulting in the death of the patient. The District Forum erred in dismissing the complaint. Per contra, the learned Counsel for the opposite parties made the following submissions: The orthopaedic surgeon had decided to fix the plate and conduct biopsy only for the alleged bone disease at that point of time and not as confirmed cancer as alleged by the complainant. The 2nd opposite party a general surgeon, did not decide on the surgery. He called for the ortho surgeon''s opinion and he only decided the surgery. Further, in the medical field, all notings of suspicion cannot be taken to be confirmed until one is clinically proved and thus only after the biopsy report on 13/2/2001 it was understood as cancer and not prior to that. The 3rd opposite party did the surgery as a pathological fracture to relieve the pain and in no way to aggravate the disease medically. The surgical oncologists are daily operating cancer patients in cancer hospitals. All pathological fractures could not be termed as cancer. The 3rd opposite party wanted to fix the plate as well as to take biopsy during the surgery. Even for biopsy, surgery would have to be conducted. The complainant had proceeded on the basis that even at the time of performing the surgery, the surgeon knew that it was a case of cancer. Only on 13.2.2001 cancer was confirmed when biopsy report was received from CSI Kalyani Hospital, Chennai. It was not correct to say that only because of the surgery there was acceleration which resulted in the death of the patient. The malignancy could spread through three routes, viz., (1) blood spread, (2) lymphatic spread - through fluid in the body and (3) interstitial spread - through tissue in the body. The surgery would not accelerate the spread of the disease. Before 13/2/2001 the opposite parties did not confirm that the patient was suffering from cancer. The incidents that happened after 13/2/2001 ought to have been proved by the complainant after making Cancer Hospital either as a party or examining its representative as a witness. After getting the patient discharged on 16/2/2001, he was admitted only on 2/3/2001 in the Cancer Hospital. On performing the surgery, the doctors could not leave the broken bone untouched as the said operation was performed only to fix the bone and at that point of time no cancer was concluded. The surgery was not performed knowing that it was a cancerous bone. The District Forum had rightly held that there was no deficiency in service.

WE have carefully gone through the materials on record and the various literature produced on behalf of the complainant by the learned Counsel. This is rather an unfortunate case where in spite of the best efforts taken by the opposite parties, the patient could not be saved. The crux of the argument of the learned Counsel for the complainant was that the opposite parties know fully well that it was a case of cancer; that when once they knew that it was a case of cancer they should not have gone ahead with surgery but should have consulted an oncologist for further course of action. This not having been done, the opposite parties were at fault and there was deficiency in service on their part. It is seen that the opposite parties had conducted various tests. Even according to the complainant, the various tests showed normal in respect of various parts of the body. It was a pathological fracture of the bone. Unless the complainant clearly demonstrated that on the date when the surgery was performed, the surgeons concerned were aware that it was a case of osteosarcoma. Mere suspicion on the part of the opposite parties would not amount to conclusion by them that it was a case of cancer. This is apparently what has happened in the present case. Admittedly the patient had pathological bone fracture which required attention. Before going ahead with the surgry, the opposite parties had the various tests done and eliminated the spread of the suspected cancer to other parts of the body. Having satisfied themselves, with a view to relieve the patient of pain and sufferings, they went ahead with the surgery. Much was made of what had been stated in the proof affidavit of the 3rd opposite party that during surgery and after surgery the patient and his people were informed about the possibility of the complainant''s father having contracted cancer. "During surgery" cannot mean that it was while performing the surgery that the people concerned were informed. It would only mean that at the time of the surgery and not while the surgery was actually on. No other interpretation could be given to the contents of the proof affidavit in this regard. As rightly pointed out on behalf of the opposite parties, even for biopsy, a surgical procedure was contemplated which was undertaken during the surgery for the fracture. The results confirmed that it was a case of osteosarcoma; that it was only on 13.2.2001 when the opposite parties had access to the report. According to the complainant, it was only because of this surgery the cancer spread to other parts of the body. For this, there is absolutely no material evidence produced on the side of the complainant. As rightly contended on behalf of the opposite parties, there is no material produced by the complainant to show as to what happened between 13/2/2001 and 2/3/2001, the date on which the complainant''s father was admitted in the Cancer Hospital. No expert evidence has been produced to show that it was only because of the surgery the cancer spread to other parts of the body and the patient could not be saved.

THE literature produced by the complainant may be briefly referred to Paget''s disease of bone is a condition that affects the process by which your body produces new material to keep your bones strong and healthy. Pain in the affected bones is the most common symptom of Paget''s disease. In most cases, Paget''s disease progresses slowly. THE disease can be managed effectively in nearly all people and is rarely fatal. Another rare complication is a bone cancer known as sarcoma also called osteosarcoma or osteogenic sarcoma, which may develop in bones affected by Paget''s disease. In rare cases one may require surgery to help fractures heal, to replace joints damaged by severe arthritis or to realign deformed bones. If Paget''s disease affects your spine or your skull, you may need surgery to reduce pressure on nerves and prevent serious complications. Paget''s disease often causes the body to produce an excessive number of blood vessels (hyper vascularity) in the affected bones. This change increases the risk of serious blood loss during an operation if there is schedule for surgery that involves bones affected by Paget''s disease, the doctor may prescribe medications to reduce the activity of the disease, a step that tends to reduce blood loss during surgery. Pausing here for a moment, it is not the case of the complainant that there was a serious blood loss during the surgery and there was no medication prescribed to reduce the activity of the discase.

Amputation is stated to be the only surgical treatment where there is extensive neurovascular involvement or skin invasion or in most cases where there is pathologaical fracture. Pre-operative chemotherapy will sometimes render a tumour involving vessels and nerves amenable to local resection rather than amputation. Osteosarcomas that originate within bone almost always behave aggressively. They rapidly destroy, normal bone, invade and destroy soft tissue, and frequently metastasize to the lungs within 2 years of diagnosis. Treatment of Osteosarcomas that originate within bone consists of surgical resection if possible and chemotherapy. Almost all reported parosteal osteosarcomas have involved the femur, humerus, or tibia, with the most frequent site being the posterior distal portion of the femur. There tumours often grow slowly over a period of years, and the patient may notice swelling but relatively little discomfort. Multi-disciplinary approach is necessary for treating a patient with osteosarcoma. Careful pre-operative staging, including a well-planned, adequate biopsy, forms the basis of the overall treatment plan.

WE have no quarrel with the literature has said. However, we are unable to hold that there was any deficiency in service on the part of the opposite parties for the simple reason that at the time they treated the patient it was not a confirmed case of osteosarcoma. It was on a mere suspicion that they had taken several tests to find out whether the patient had cancer, and as rightly pointed out by the District Forum, the opposite parties were keen to relieve the patient of pain and suffering which they did by doing the surgery. For the reasons stated above, we do not find any merit in the appeal. The appeal fails and the same is dismissed. Appeal dismissed.