State Consumer Disputes Redressal Commission

West Bengal

BHABANI BHAVAN (GROUND FLOOR)

31, BELVEDERE ROAD, ALIPORE

KOLKATA – 700 027



S.C. CASE NO. FA/09/155

DATE OF FILING: 24.4.2009

DATE OF FINAL ORDER: 22.07.2009


COMPLAINANT/APPELLANT


Sri Krishna Pada Kundu

S/o Late Kanailal Kundu

Residing at School Road, P.O. – Gangarampur

Dist. – Dakshin Dinajpur, Pin – 733 124



RESPONDENTS/O.Ps.



1) Dr. R.N. Ghosh

Haematologist & Oncologist

Residing at 9, Jatin Bagchi Road

Kolkata – 700 029

2) Cancer Centre Welfare Home & Research Institute

Mahatma Gandhi Road, Thakurpukur

Kolkata – 700 063

3) Dr. P.K. Mondal

Cancer Centre Welfare Home & Research Institute

Mahatma Gandhi Road, Thakurpukur

Kolkata – 700 063



BEFORE : HON’BLE JUSTICE MR. A. CHAKRABARTI, PRESIDENT

MEMBER : MRS. S. MAJUMDER



FOR THE COMPLAINANT/APPELLANT : Mr. U.C. Jha, Advocate

FOR THE RESPONDENTS :Mr. A. Mukhopadhyay, Advocate(No.1)

Mr.R.K. Mukherjee, Advocate (No.3)



: O R D E R :


HON’BLE JUSTICE MR. A. CHAKRABARTI, PRESIDENT



This appeal was filed challenging the order dated 25.3.2009 passed by District Consumer Disputes Redressal Forum, South 24 Parganas in C.C. No.124 of 2006 whereby the complaint was dismissed.

The case made out in the complaint, in brief, is that the complainant started facing some physical weakness in the year 2005 along with lack of concentration and he contacted Dr. Sandip Kumar Lahiri who advised complete haemogram of WBC & TC DC ESR along with test of Urea, Blood Sugar, X-ray and some other tests. As complainant was found having some problem regarding hemoglobin in the blood, he was advised immediate hospitalization and accordingly the complainant was admitted in Sri Aurobindo Seva Kendra and was receiving treatment including blood transfusion. Hemoglobin content was found improved but biopsy of bone marrow of the complainant showed infiltration by non-haemopoietic cells. In view of such report complainant decided to take an expert’s opinion and accordingly visited the chamber of OP1 for his opinion and treatment. The OP1 tested blood, stool and urine of the complainant at his own laboratory. The sample of bone marrow which was tested at Shri Aurobindo Seva Kendra was also directed to be tested by OP1. The blood sample was also directed to be tested at the institute of OP2.

Pursuant to advise in the prescription dated 24.5.05 of the OP1, the sample of bone marrow of the complainant was given to the OP2 for test and opinion and the OP3 being the pathologist there gave his conclusion that metastatic carcinoma was present in the bone marrow which leads to a conclusion that the complainant was suffering from lucomia (blood cancer). The OP1 told the complainant’s son that the blood cancer of the complainant had reached the fourth stage and there was no possibility of his survival. The complainant though was advised treatment and tests by OP1, decided to go to Mumbai for his treatment of blood cancer and accordingly visited Tata Memorial Hospital at Mumbai where the same sample of bone marrow was once again tested by the pathologist of the said Tata Memorial Hospital wherefrom it was learnt that no carcinoma cells were available. Even after second test of bone marrow of the complainant on fresh sample the normal condition was shown. Alleging mental agony by reason of wrong diagnosis and treatment by OP1 and wrong diagnosis by OP2 & 3, the complain was filed claiming Rs.1,50,000/- towards reimbursement of cost of treatment, Rs.5 lacs as compensation and Rs.25,000/- as litigation cost.

Heard Mr. U.C. Jha, the Ld. Advocate for the Appellant. The grievance of the appellant is that on 24.5.05 OP1 diagnosed without himself causing appropriate tests and prescribed medicines which admittedly has serious after effects. It is contended that on the very first day the OP1 doctor prescribed Shanferon injection which is normally administered to treat various diseases including certain types of cancer, hepatitis B & hepatitis C. Mr. Jha, the Ld. Advocate referred to prescription by the OP1 dated 24.5.05 wherein bone marrow aspiration was advised and Shanferon injection was also advised. It is contended that in the pleadings and in his evidence OP1 doctor stated repeatedly that he himself found no indication of cancer and he still advised tests to find out source of carcinoma cell in view of the biopsy report of the complainant obtained prior to visiting OP1 and at the same time stating that the said Shanferon injection was prescribed to immune the patient from hepatitis B. It is strongly contended by the Ld. Advocate for the appellant that such action by OP1, as a declared Hematologist and Oncologist, prescribing Shanferon injection even prior to his own diagnosis and that too after advising the relatives of the patient that the patient had serious stage of the disease having a short life span left, is a gross case of medical negligence and deficiency in service.

Reference was made to the biopsy reports dated 04.5.05 by Sri Aurobindo Seva Kendra and report dated 13.7.05 by Tata Memorial Hospital showing that both reports were obtained from the same sample No.364/05 but having contradictory findings. It is stated that on a fresh requisition also Tata Memorial Hospital found normal bone marrow of the complainant and, therefore, it is contended that the tests report dated 25.5.05 in a test conducted by the OP2 & 3 also being thus showing carcinoma and, therefore, contrary to the report of Tata Memorial Hospital, shows deficiency in service on the part of the OP2 & 3.

Reference was made to evidence of the OP1 himself in his affidavit of evidence as also is reply to the questionnaires filed by the complainant.

It is contended that when OP1 by further tests was himself searching for source of cancer cells in view of a report dated 04.5.05 recording infiltration of carcinoma cells, no explanation is available as to why he advised administration of Shanferon injection to immune the complainant from hepatitis B.

The Ld. Advocate for the complainant relied on the judgments in the cases of Martin F. D’Souza-Vs-Mohd. Ishfaq reported in 2009(1) CPJ 32, Dr. Laxman Balkrishna Joshi-Vs-Dr. Trimbak Bapu Godbole reported in AIR 1969 SC 128, Achutrao Haribhau Khodwa-Vs-State of Maharashtra reported in 1996(2) SCC 634, Spring Meadows Hospital-Vs-Harjolahluwalia through K.S. Ahluwalia reported in 1998(4) SCC 39, Smt. Savita Garg-Vs-The Director, National Heart Institute reported in 2004(8) Supreme 58 and Charan Singh-Vs-Healing Touch Hospital reported in AIR 2000 SC 3138. Mr. Jha also referred to medical literature showing the diseases in which Shanferon is applied and the evidence of OP1 himself stating the after effects of the said medicines.

Mr. Aloke Mukhopadhyay, the Ld. Advocate for the Respondent No.1 contended that when complainant admittedly did not follow the advices of the OP1 and did not allow administration of the injection prescribed by OP1, allegation of medical negligence on the part of the OP1 cannot stand. It is argued strongly that a patient who came only for a day and, thereafter never came back to the doctor nor continued the treatment, is not entitled to make a claim of compensation alleging medical negligence. It is argued this conduct of the complainant amounts to gross misuse of the beneficial statute namely Consumer Protection Act.

Mr. R.K. Mukherjee, the Ld. Advocate for the Respondent No.3 contended that it has not been shown by the complainant that report prepared by his client was wrong in any manner. The reports by Tata Memorial Hospital have not been proved even by the complainant nor the maker of the said report has been examined. It is contended that even the method applied by Tata Memorial Hospital in conducting the said tests, has not been disclosed and, therefore, the report by the Respondent No.3 cannot be held to be wrong relying on such report of Tata Memorial Hospital which has not been proved even.

Considering the respective contentions as also the materials on record we find that the facts available show that the complainant obtained a biopsy report dated 04.5.05 on a bone marrow sample of the complainant wherein finding was “there is infiltration by non-haemopoietic cells”. On the said report the OP1 was consulted by the complainant on 24.5.05 whereupon the prescription issued by OP1 shows advices were given by OP1 which included bone marrow aspiration and Shanferon injection. The prescription shows that it was originally issued on 24.5.05 and it bears subsequent endorsements by OP1 each one with a signature of the OP1. The evidence of OP1 shows that the complainant visited the OP1 on 24.5.05 and never thereafter. The patient party visited OP1 on 25.5.05. As the prescription bears also a signature with date 25.5.05, the said contention of the OP1 does not appear to be wrong.

It is true that there is some contradiction in the pleadings and evidences of OP1 as regards the visit by the patient and the patient party. But on overall reading we find that the case made out by OP1 that the patient himself visited on 24.5.05 and the patient party visited on 25.5.05 is acceptable.

The advices given by the OP1 either on 24.5.05 or 25.5.05, do not appear to depict any conclusion by the OP1 as regards the ailment of the complainant.

The prescription of Shanferon itself has been strongly cited as a case of medical negligence when admittedly the OP1 was having a biopsy report opining infiltration by non-haemopoietic cells then advising Shanferon with other medicines and advising further tests, do not itself show any medical negligence. Law in this respect is clear that wrong diagnosis on the very first day or inability to make a correct complete diagnosis within one day, itself is not a case of medical negligence. The judgment in the case of Nilkanta Sarkar-Vs-S.N. Banerjee reported in (2007)3 CPJ 247 shows the aforesaid conclusion.

In the present case we find it was not a long treatment by OP1. Even if OP1 advised Shanferon injection on 25.5.05 subject to further check up and further test reports the same cannot be attributed as a case of medical negligence. It is true that the complainant contended the after effects of Shanferon injection but we do not find any material to hold that the said injection for a day or two is to cause such after effects. OP1 himself has stated that longer application of the said treatment may cause certain after effects which will require stoppage of the said treatment and only on improvement from such after effects the medicine could be continued again. In the present case OP1 did not get any longer opportunity to continue the treatment and, therefore, there is no material that there was medical negligence or there would have been consequences of after effects. It is not known that after the further tests were held and their report showed to the OP1, what advice he would have given in case complainant continued the treatment of OP1. Therefore, on the existing material it cannot be concluded that there was medical negligence or deficiency in service by OP1 from the available materials.

With regard to the contentions against OP2 and 3 for a contradictory report on bone marrow Biopsy or report by Tata Memorial Hospital, we find that the report of the Tata Memorial Hospital has not been proved by the complainant examining of this report maker and making him available for cross examination by OP. Details of the methods applied by Tata Memorial Hospital are also not available on proved materials. Therefore, it is not possible to come to a finding as to which report is correct and which one is wrong.

The judgments cited by the respective parties show the position clearly as regards medical negligence. The same has been held clearly in the case of Achutrao Haribhau Khodwa (Supra) as follows:

“14. The skill of medical practitioners differs from doctor to doctor. The very nature of the profession is such that there may be more than one course of treatment which may be advisable for treating a patient. Courts would indeed be slow in attributing negligence on the part of a doctor if he has performed his duties to the best of his ability and with due care and caution. Medical opinion may differ with regard to the course of action to be taken by a doctor treating a patient, but as long as a doctor acts in a manner which is acceptable to the medical profession and the court finds that he has attended on the patient with due care, skill and diligence and if the patient still does not survive or suffers a permanent ailment, it would be difficult to hold the doctor to be guilty of negligence.”

In the present case on facts available admittedly the treating doctor against whom allegations have been made, did not treat the patient for any long time. The patient visited only once and the patient party visited the doctor once on the next day. Admittedly treatment advised by the doctor was not availed by the complainant. We do not have sufficient materials to hold the doctor OP1 or the OP3 acted with negligence. One or two contradictions in pleadings and evidence unless conclusively make out a case of negligence, do not lead to prove the complainant’s case.

In the circumstances we do not find any ground to allow the complaint and uphold the allegation of deficiency in service or of medical negligence by the OPs. Therefore the appeal is dismissed. There will be no order as to costs.







(S. Majumder) (Justice A. Chakrabarti)

MEMBER(L) PRESIDENT