23

C.C.no. 124 of 2006

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

SOUTH 24 PARGANAS

Judges Court Road, Alipore, Kolkata – 700 027

C.C. no._124___ of 2006


Date of filing__ Date of Disposal__25-03-2009____


Before: President : Shri Dipak Shyam Roy


Member(S): A Roy Chowdhury


COMPLAINANT : Sri Krishna Pada Kundu,s/o late Kanailal Kundu of School Road, P.O. Gangarampur, District- Dakshin Dinajpur,Pin-733124


- VERSUS -


O.P./O.P.'S : 1. Dr. R.N. Ghosh, Haematologist & Oncologist of 9, Jatin Bagchi Road,Kolkata – 29, P.S. Thakurpukur

2. Cancer Centre Welfare Home & Research Institute, Mahatma Gandhi Road, P.S. Thakurpukur,KIolkata -63

3. Dr. P.K. Mondal, Pathologist, Cancer Centre Welfare Home & Research Institute, Mahatma Gandhi Road, P.S. Thakurpukur, Kolkata - 63


J U D G E M E N T

1.

This application under Section 12 of the C.P Act, 1986 has been filed by the complainant Sri Krishnapada Kundu against the O.Ps alleging deficiency in service on the part of the O.Ps while rendering medical services to the complainant.
2.

The fact of the case in brief is that the complainant sometimes in the year 2005 due to some physical weakness along with lack of concentration and some other problem contacted Dr. Sandip Kumar Lahiri who upon physical examination of the complainant advised him for some tests. In pursuant to such advice all tests prescribed by the said doctor was carried out and it was observed that the complainant was having 6 gm of Hemoglobin for d/lt. . The treating doctor also advised him for immediate hospitalization and in pursuant thereto the complainant got himself admitted in Sree Arabindo Seva Kendra under Dr. Prasenjit Chatterjee and started receiving treatment therein. The treatment which the complainant was receiving in that hospital included blood transfusion The hemoglobin magnitude in the blood of the complainant started increasing and it attained almost normal status . The Biopsy of Bone marrow of the complainant showed infiltration by non Haemobiotic cells. Thereafter the complainant visited the chamber of the O.P-1 for his opinion and for his treatment. The O.P-1 received his full fees from the complainant for giving his services and made a test of the blood, stool and urine of the complainant at his own laboratory . Moreover the sample bone marrow which was tested at Sree Aurabinda Seva Kendra was also directed by the O.P-1 for testing. The complainant was further directed by the O.P-1 to get the blood sample tested at the institute of the O.P-2. The Bone Marrow of the complainant was placed before the O.P-2 for their test and opinion and pursuant to the result of the investigation of the O.P-3 working as a pathologist of the O.P-2 came to the definite conclusion by giving his opinion that Metabolic Carcinoma was present in the bone marrow of the complainant, which led to the conclusion that the patient was suffering from Lucomia (blood Cancer). A specific allegation has been made against the O.P-1 to the effect that he told the son of the complainant that he had personally seen the report and the experiment and according to him, the blood cancer of the complainant had reached to the 4th stage and there is no possibility of survival of the complainant. Pursuant to the aforesaid observations the O.P-1 started treatment of blood cancer of the complainant. But the complainant out of his own curiosity and also being advised by his well wisher went to Mumbai for his treatment of blood cancer. The same sample of bone marrow was again tested by the pathologist of Tata Memorial Hospital, Mumbai and it was observed there that no Carcinoma cells were seen. However, the Doctor of that Institute decided to carry out the test afresh as there was conflicting opinion. Upon second test also the bone marrow of the complainant found normal. The complainant has now alleged that due to reckless negligence and ill advice of the O.Ps ,she had to incur huge expenditure to the tune of Rs. 1,50,000/- for his treatment ,though there was no disease at all. The complainant has described the act of the O.Ps declaring a normal patient to be a patient of blood cancer as gross deficiency of service on their part. The complainant has made out a further case that had he taken the medicines prescribed by the O.P-1 , the complainant might have died due to such wrong treatment. The complainant has now prayed for a direction upon the O.Ps to make repayment of the cost of the treatment incurred by the complainant due to their deficiency in service and medical negligence which has been assessed to Rs.1,50,000/-. He has also prayed for a direction upon the O.Ps to make payment of Rs. 5 lacs towards the compensation for mental agony and harassment caused to the complainant and his family members for the medical negligence and deficiency in service of the O.Ps. He has also prayed for a direction upon the O.Ps to make payment of cost of litigation to the complainant for a sum of Rs.25000/-.
3.

The O.P-1 Dr. R.N. Ghosh has contested the case filing written version ,denying all the material allegations of the complainant. He has contended that in May,2005 the complainant was admitted in EEDF with symptoms of Anemia. A Boner Marrow Aspiration showed Megaloblastic changes and a Bone Marrow Trephine Biopsy showed presence of non – haemopoietic cells which means cancer cells. Then the patient was given four units of blood. After having discharged from EEDF the patient came to the O.P-1 only on 25th May, 2005 for consultation. The O.P-1 took the patient's history and examined him but did not find anything significant. He checked the patient's blood count,liver function and Kidney functions, calcium and phosphate condition in blood and also coagulation screening tests. Thereafter he advised the patient for a further investigation like Upper G.I Endoscopy and if necessary Colonoscopy in order to find out the source of cancer cells and also Immuno-histo-chemistry of teraphine biopsy and also advised for getting these investigations done by the Cancer Center Welfare Home and Research Institute. All those tests were required to see the presence of cancer cells and to get the diagnosis on firm footing. The said Biopsy was reported to be containing of cancer cells infiltrating bone marrow. He has further contended that he gave the patient only a supporting therapy and nothing more. He has seen the patient only on 25th May,2005 and thereafter the patient never turned up for further consultation with him. Only for one day he had an opportunity to investigate /examine the case of the patient and gave suggestion according to his experience and skill. But it was never communicated to him whether the patient followed his suggestion or not. In absence of any such information he has failed to apply his judicious mind about the suggestion or symptoms and for future course of action on the patient. He had occasioned to examine the patient on 24th May, 2005 and after seeking the report of EEDF made prescription for the patient. Thereafter the patient never turned up. His further contention is that upon applying reasonable decree of medical skill and sincerity the prescription was made. That cannot be the cause of deficiency in service, if ultimately it is found that diagnosis was wrong. He has denied that he had ever said to the son of the complainant that he had personally seen the report as suggested by him, where it was confirmed that the patient had reached the 4th stage of cancer and there was no possibility of survival. His further case is that he never opined for cancer but only suggested for certain investigations in order to ascertain the disease if at all , since from the earlier report of EEDF it was given to understand that the patient was suffering from cancer. He has alleged that the opinion of the Tata Memorial Hospital was not shown to him and no second test of bone marrow was referred to him for his opinion . Regarding the alleged harassment and suffering, he has pleaded that he has got no role to play and the expenses made by the patient, if at all, that cannot be claimed. He has also challenged the maintainability of the case on the ground that lot of doctors who investigated and prescribed for the patient were not made party. He has also challegned the status of the complainant as a consumer. He has ,therefore, prayed for dismissal of the case.
4.

The O.P-2 has contested the case filing separate written version. It has contended that the complainant submitted one outside paraffin block taken by the private agency to the laboratory of O.P-2 for testing of bone marrow biopsy and on receiving such paraffin block the test report was made on the basis of the result obtained by the immunohistocyemistry test on the block supplied by the complainant and the findings which were given in the report was based on the test findings and are found to be correct as per standard procedure followed in the laboratory of the O.P-2. It has further contended that at the time of submitting the paraffin block for testing no document was annexed with the paraffin block . The involvement of the O.P-2 was only the imuno histo chemistry testing of the paraffin block as supplied by the complainant. It has further contended that he never gave any wrong advice to the complainant for diagnosis of the ailment of the complainant. It has denied that there was any deficiency in service on his part for the testing of the paraffin block. It has denied its responsibility for the expenses incurred by the complainant for his treatment. It has prayed for dismissal of the case.
5.

The O.P-3 has also contested the case by filing separate written version . He has contended that he had never any personal contact with the complainant and took money or fees or charges from him and as such the complainant is not a consumer within the meaning of Consumer Protection Act so far as he is concerned. His further contention is that the complainant had been undergoing treatment of his ailment and done various pathological tests as per supervision and advice of Dr. Sandip Kumar Lahiri since April,2005. As per advice of Dr. Lahiri he was admitted in Arabindo Seva Kendra at Jodhpur Park under Dr. Prasenjit Mondal where further treatment commenced and several pathological and readiological tests of the patient were carried out. He was discharged from the said Hospital when his Hb shoot up to a normal level after blood transfusion. The physical ailment of the patient continued for which after seven weeks he came for treatment of his ailment to Dr. R.N. Ghosh , the O.P-1. But those doctors and the hospitals have not been made party in this case,though the patient came to Dr. Ghosh as he was not cured by the treatment of those doctors. He has contended that the complainant, a 63 years old person, was suffering from long standing Anemia and underwent bone marrow Biopsy at Sree Arabindo Seva Kendra to ascertain his cause of anemia. The Biopsy report given by renowned Pathologist Dr. Sudipto Roy indicated infiltration by the non-haemopoietic cells . He being the pathologist of Thakurpukur Cancer Hospital performed the test being referred by Dr. R.N Ghosh. He performed the said IHC test from a paraffin block supplied by an extraneous source namely Sri Aurobindo Seva Kendra and designated as being that of Bone Marrow specimen of the complainant. The bone marrow tissue was neither processed at Cancer Hospital, Thakurpukur under him or under his supervision. Therefore, mis-ups artifacts (i.e. Various pitfalls in paraffin block preparation) though improbable are still not absolutely impossible. The O.P-3 made an absolute presumptive diagnosis in good faith and in consistence with current knowledge. The test was done with the kit manufactured by DAKO CYTOMATION DENMARK , an internationally reputed and time tested company. Positive control slide run simultaneously with the test also stained positive . The opinion, based on this particular test was given as metastatic carcinoma. He has pointed out that cytokeratin pancytokeratin in an antigen found over epithelium of any organ/tissue. According to him Immunochistochemistry is not as yet the ultimate tool of histopathological diagnosis but it is an important diagnostic aid taken in conjunction with opinions of other clinicals and such ancillary techniques as whole body C.T. Scan MRI, Bone scan, polymeras chain reaction flowcytometry not to speak of simple peripheral blood smears converging to the diagnosis of an unknown primary malignancy giving rise to a metastasis in bone marrow. IHC must be indicated by a multi disciplinary team effort. It will not be absolutely unethical (if not downright contrary to the laws of the land as we know them) to pinpoint the blame on a solitary person or accuse him as an accessory (in this case the O.P3) . More so, when the Tata Memorial Hospital of Mumbai made an improper review on a fragmented and necrotic bone marrow specimen. The failure, if any, lies in the still imperfect but highly advancing boundaries of science. Moreover, O.P-2 was not asked to review the histopathological report on bone marrow written by Dr. Sudipta Roy. It was only asked to confirm or negate the report given by Dr. Sudipta Roy.
6.

He has further contended that the report of Tata Memoraial Hospital may be different for the reason that there is a possibility of a mix-up tissue. Moreover, as the bone marrow biopsy was fragmented and had necrotic areas, it could not be properly reviewed at Tata Memorial Hospital. May be during the period from making the slide at Sri Aurobindo Seva Kendra to reviewing at Tata Memorial Hospital, Mumbai the staining had started fading away. Tata Memorial Hospital thereafter did a re-biopsy of bone marrow of the patient and made a fresh report, which could not be done at O.P-2. He has also contended that there has a faint possibility that the reaction of the IHC staining which occurred was a false positive one. It is known that a false positive reaction due to aberrant keratin formation in any other tissue other than epithelial tissue may occur in some cases. His further contention is that the treatment of a critical patient is a collective effort and corroboration of all aspects of a disease is necessary rather than a single test report. He has contended that in a case of pathological diagnosis by biopsy, the report of histopathological examination is still considered gold standard by most pathologists all over the world. Ancillary techniques only help to establish ,modify or classify the diagnosis made on routine H & NE stained section . In this case, Biopsy test was done by Dr. Roy. Under such circumstances when the IHC result showed positive staining to cytokeratin, the O.P-3 had to conclude it to be nothing but metastasis. His further contention is that it is erroneous to believe that Tata Memorial Hospital have been right and O.P-2 is wrong because the fact remains that the complainant has a disease which still remains to be diagnosed. It is too premature to state that the complainant does not have any malignancy. According to him there is nothing to prove that he had any negligence. Everything was done by him in a good faith and in accordance with the current medical practice with best possible reagents and methods by application of utmost skill and care. He has therefore, prayed for dismissal of the case.

7.

The complainant in this case furnished evidence on affidavit. The O.P-1 and the O.P-3 also filed their respective evidence on affidavit. No evidence on affidavit was furnished on behalf of the O.P-2. The contesting parties also furnished questioners against the evidence furnished in this case and the corresponding replies had also been produced in this case.
8.

Point for consideration in this case is (i) whether the complainant has been able to prove that there was medical negligence and the deficiency in service on the part of the O.Ps of this case (ii) whether the complainant suffered any damage for which he is entitled to get compensation as prayed for (iii) whether the complainant is entitled to get cost of litigation.

Decision with reasons :-

9.

The Ld. Advocate appearing for the complainant has furnished his written notes on argument. He has argued before us that due to some problems and physical weakness the complainant initially contacted Dr. Sandip Kumar Lahiri for his medical treatment and upon certain investigative tests, the Hemoglobin count of the complainant was found to be very low and as such the complainant was advised immediate hospitalization and he was admitted in Arabindo Seva Kendra and was discharged from the said Hospital being fully cured. He further submits that during investigation the Biopsy of Bone Marrow of the complainant showed infiltration by no Haemopoietic cells. Seeing that report, as per advice of Doctors for expert opinion, the complainant visited the Chamber of the O.P-1 who received his full fees and carried our test of the Blood Stool and Urine of the complainant at his own laboratory. The O.P-1 further directed the complainant to get the sample of bone marrow tested at the O.P-2 for correct findings. The O.P-3 who is a pathologist employed in the O.P-2 after test came to the conclusion that Metastatic Carcinoma was present in the aforesaid sample of the bone marrow of the complainant ,which led to conclude that the complainant was suffering from Lucomia. The O.P-1 came to conclude that the blood cancer of the complainant had reached to 4th stage and there was no possibility of survival of the complainant. The complainant thereafter went to Tata Memorial Hospital at Mumbai and the same sample of bone marrow being tested there revealed that the complainant was not suffering from any Cancer and it was also observed in their report that no Carcinoma Cells are seen. The second test also revealed that the bone marrow of the complainant was normal. He also submits that the complainant suffered mentally as well as financially due to the aforesaid wrong advices of the O.Ps and spent unnecessarily an amount of Rs. 1,50,000/-. The Ld. Advocate therefore argues that an amount of Rs. 5 lac towards mental suffering of the complainant as well as of his family members and a cost of Rs. 25000/- towards the litigation cost should be awarded by this Forum.
10.

In the instant case the parties have filed their respective examination in chief on affidavit and the complainant and O.P-3 were cross examined on dock and the O.P-1 was cross examined through questioner filed. The evidence of the O.P-2 was expunged as he did not turn up to face cross examination.
11.

The Ld. Advocate appearing for the complainant referring to the documents and the oral evidence available on records submits that it is a case where the O.Ps more particularly the O.P-1 miserably failed to perform his duty in terms of the law laid down by the Hon'ble Supreme Court in a Judgement reported in AIR 1969 Supreme Court 128.In the aforesaid decision referred to by the Ld. Advocate for the complainant the Hon'ble Apex Court has been pleased to hold that the duties which a doctor owes to his patient are clear. A person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person when consulted by a patient owes him certain duties viz a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give or a duty of care in the administration of that treatment. A breach of any of those duties gives a right of action for negligence to the patient. The practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires: The doctor no doubt has a discretion in choosing treatment which he proposes to give to the patient and such discretion is relatively ampler in cases of emergency.
12.

The Ld. Advocate for the complainant submits that the O.P-1 prescribed medicine of cancer without even coming to a conclusion whether the patient was suffering from cancer inasmuch as it is the own case of the O.P-1 that he did not find anything significant in the patient and his reports were normal. Under these circumstances, the O.P-1 prescribed Shanferon injection ,as per his own version , is a medicine being used for treatment of hepatitis B, Hepatitis C and Lucamia. It is the version of the O.P-1 that the patient was suffering from none of the aforesaid diseases. In the abvoe circumstances the Ld. Advocate raised questions as to for what purpose such medicine was prescribed. The Ld. Advocate alleges that the O.P gave no explanation for prescribing the said medicine. During cross examination he has made an attempt to give explanation for the prescription of such fatal medicine by saying that he had in mind an idea of improving the immunity of the patient against Hepatitis B . According to the Ld. Advocate such explanation of the O.P has the following lacuna:

a) The explanation given is simply an afterthought as there is no such case made out in the written version or in the affidavit in chief.

b) Medicine is never used for any vaccination purpose which will be evident from book giving description of use of the said medicine.

100.

The patient had never been to the O.P for any vaccination purpose.

According to the Ld. Advocate of the complainant this clearly establishes the medical negligence on the part of the O.Ps and hence they are liable to be dealt with appropriately by this Forum. The Ld. Advocate has further argued that the O.P-1 has stated that he gave only supportive therapy and nothing more. But with his all emphasis he submits that the medicine prescribed by the doctor is nothing but medicine used for cancer patient only. According to him , fortunately being advised by the well wishers ,the complainant instead of taking the medicine went to Tata Memorial Center and he was saved from disastrous effect of the aforesaid medicine which was negligently prescribed by the doctor. Therefore, he submits that such prescription of medicine which is used only for cancer is certainly a breach of duty on the part of a doctor who is considered by the patient as a next to god.

13.

The Learned Advocate appearing for the O.P-1 submits that the patient came only one day to O.P-1 with a reports of Arabinda Seva Kendra. The O.P-1 made certain tests to O.P-3 for confirming whether he was suffering from cancer. He further argues that the O.P-1 is an Oncologist and Hematologist. He prescribed medicine for immunization from hepatitis. He has further argued that the patient came with the report of cancer from Arabinda Seva Kendra and now Tata Memorial Hospital has opined that he was not suffering from cancer. The Ld. Advocate raises question as to why this Arabinda Seva Kendra and Tata Memorial Hospital have not been made party for proper adjudication of this case and he submits that the instant case is not maintainable for non joinder of the necessary parties. He has also questions if no cancer was detected by the Tata Memorial Hospital what insisted the complainant to visit so many times the said Tata Memorial Hospital for his treatment. The Ld. Advocate further submits that the patient did not visit the Chamber of the O.P-1 again with the report of O.P-3 and the O.P-1 got no scope to verify whether the report of Arabinda Seva Kendra was correct or not. He has strongly denied that the O.P-1 ever stated to the son of the complainant that it was a case of cancer and the patient will not survive more than six months. In this connection, the Ld. Advocate for the O.P-1 refers to the decision of the Hon'ble Apex Court in the case of Jacob Mathew Vs. State of Punjab an Anr reported in 2005 CTJ 1085 (Supreme Court) (C.P). He submits that in the said decision it has been held by the Hon'ble Apex Court that a medical practitioners is not to be held liable simply because thing went wrong from mischance or mis-adventure or through an error of judgement in choosing one reasonable course of treatment in preference to another. The Ld. Advocate also refers to the decision of the Hon'ble National Commission in the case of Smt. Malati N.R Vs. Dr. Vidyanavi & Anr and submits that in the said decision Hon'ble National Commission has been pleased to hold that to establish liability of a physician it must be shown ;

1.

there is a usual and normal practice
2.

That the defendant has not adopted it
3.

That the course in fact adopted is one no professional man of ordinary skill would have taken had he been acting with ordinary care.

The Ld. Advocate submits that the complainant has hopelessly failed to prove all those points and as such the case is liable to be dismissed against the O.P-1.

13.

Considered the above submissions advanced by the Ld. Advocates. I find that there is discrepancy both in evidence and in written version filed by the O.P-1 as to how many times or on which date the patient visited his chamber and how many times he in fact saw the patient. There is also some discrepancy as to whether the patient came to him first on 24.5.2005 or 25.5.2005. But we find that prescription is dated 24.5.2005 and there is no dispute that the O.P-1 prescribed Shanferon and sent him to O.P-2 for further confirmation of the report of Aurabinda Seva Kendra. There is no evidence on record and not the case of the complainant that with the report of O.P-3, he again visited the Chamber of the O.P-1. The qualification and experience which the O.P-1 possesses is sufficient to hold that he possessed the skill and knowledge for the purpose of giving medical treatment and by making prescription he impliedly undertook the case and he prescribed the medicine 'Shanferon' but sending him to O.P-2 for further testing for confirmation of the cancer clearly indicates that he himself was not confident and sure about the diagnosis for which he noted in the prescription that there was nothing significant. But instead of that he prescribed medicine.
14.

Now question is whether course of action on the part of the O.P-1 was negligent of duty or negligence of care. According to him it was only a supportive medicine. When a patient comes with the finding of cancer to a specialist it is his duty to prescribe some medicines to give a support but if he is in confusion he may refer it for further confirmation of the earlier findings. If for argument sake we accept that this prescription should not have been done but he has prescribed medicine, in that case, we are of the opinion that he cannot be held for negligence or failure of duty on his part . It can at best be treated as erroneous judgment on the part of the doctor to prescribe such medicine without waiting for further confirmation. In the decision of the Hon'ble Apex Court in the case of Jacob Mathew Vs. State of Punjab and Anr which have already been referred to by the Ld. Advocate of the complainant ,their Lordships in discussing the negligence has been pleased to observe that essential components of negligence as recognized are three: “Duty”, “Breach” and “Resulting damage” , that is to say ;-

1.

the existence of a duty to take care, is owned by the defendant to the complainant;
2.

The failure to attain that standard of care, prescribed by the law, thereby committing a breach of such duty ; and
3.

damage, which is both casually connected with such breach and recognised by law, has been suffered by the complainant.

In the said decision their Lordships have been pleased to further hold that the classical statement of law in Bolam's case has been widely accepted as decisive of the standard of care required both of professional men generally and medical practitioners in particular. It has been invariably cited with approval before Court in India and applied to as touchstone to test the pleas of medical negligence. In tort, it is enough for the defendant to show that the standard of are and the skill attained was that of the ordinary competent medical practitioner exercising an ordinary degree of professional skill. The fact that a defendant charged with negligence acted in accord with the general and approved practice is enough to clear him of the charge. Two things pertinent to be noted. Firstly, the standard of care , when assessing the practice as adopted, is judged in the light of knowledge available at the time of the incident and not at the date of trial. Secondly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that point of time on which it is suggested as should have been used.

In the case in hand, the patient came to O.P-1 with the report of Aurabinda Seva Kendra where it was clearly stated that there is infiltration by non Haemapoetic Cells. Comments of the doctor was to correlate with the clinical features and bone marrow aspiration findings. When the patient came to O.P-1 after certain tests he prescribed the medicine and suggested for bone marrow aspiration and for immuno hystochemistry of Teraffin Biopsy. But there is no evidence to show that the patient with immuno hystochemistry of Teraffin Biopsy report again visited the chamber of O.P-1 Doctor for taking further action by him. We have no hesitation to hold that though nothing significant was found by him, he prescribed some supportive medicine but for confirmation of the earlier report he sent it for further test. The conduct of this Doctor does not appear to us that it fell short of standard of reasonably competent practitioners in this field. Though, it was subsequently found by the report of Tata Memorial Hospital that the complainant was not patient of cancer but under no circumstances that report can be used against that O.P-1. Moreover the complainant in his reply to the question of O.P 3 has specifically stated that Dr. R.N. Ghosh did not treat him for cancer. That is also no convincing evidence to prove that medicine prescribed by O.P-1 is used only for cancer patient. That apart, admittedly the medicine prescribed by the O.P-1 was not used by the complainant. That being so, no damage was caused which is most essential ingredients for filing a case for compensation which is absent here. The O.P-1 by affidavit has denied that he has disclosed before the son of the complainant that he has chance of survival of six months only. Against that affidavit, no counter affidavit has been furnished before us by the son of the complainant. In view of that matter, we hold that the complainant cannot claim any compensation at least from the O.P-1 for the alleged mental agony caused to him. If he suffered any agony for the alleged cancer, it was caused by Aurabinda Seva Kendra but curiously enough no action has been taken by the complainant against that Aurabinda Seva Kendra ,by whose report initially the O.P-1 was guided.
13.

We do not hold that the case is not maintainable against the O.P-1 for not impleading Aurabinda Seva Kendra or its doctors as parties but we hold that in the facts and circumstances of the case only for prescribing a medicine which was not used by the complainant , no case of claiming compensation against the O.P-1 lies as because the course should have been adopted by a professional man or professional skill has also been adopted by the O.P-1, he cannot be held for any medical negligence. For argument sake if we accept that there was an error of judgement in choosing for medicine, even then,that cannot be treated as a negligence of duty. We ,therefore, hold that the instant case against the O.P-1 is liable to be dismissed.
14.

The Ld. Advocate appearing for the complainant submits that the report of the O.P-3 , who is an employee doctor under O.P-2 has been proved to be incorrect by the report of Tata Memorial Hospital. According to him, this incorrect report compelled the complainant to move to Tata Memorial Hospital , Mumbai and he had to spend more than Rs. 1,50,000/- for further test and treatment and this has caused mental agony to the complainant as well as his other families and as such the complainant is entitled to get compensation. He further submits that the O.P-2 who is an employer of the O.P-3 has vicarious liability who cannot pray for absolving himself from making payment of compensation. In support of his contention the Ld. Advocate for the complainant refers to the decision reported in 1998 (4) (SCC) and the decision reported in 1996 (2) (SCC) . In the first decision Hon'ble Apex Court has been pleased to observe that even a member of the family can not be denied the status of consumer under the C.,P.Act and action by any such member of the family for any deficiency of service, it will not be open for a trader to take a stand that there was no privity of contract. In the second decision the Hon'ble Apex Court has been pleased to observe that the State would be vicariously liable for the damages which may become payable on account of negligence of his doctor or other employees.
15.

IN view of the above principle as stated by the Hon'ble Apex Court ,there is no dispute that a member of the family can claim compensation as well as the hospital cannot avoid its vicarious liability for the act done by its employees or the doctor.
16.

Now question is whether there was medical negligence as alleged on the part of the O.P-3 and if so, whether the O.P.-3 shall be equally responsible for the alleged medical negligence.
17.

The Ld. Advocate appearing for the O.P-3 submits that the case of the complainant is based on three Biopsy reports out of which one was done by Aurabinda Seva Kendra and the other was done by O.P-3 and these two reports supported each other. Whereas so called report of Tata Memoraial Hospital appears to be contradictory to first two test reports. He submits that it cannot be concluded that the reports of Aurabinda Seva Kendra and Thakurpukur Cancer Hospital are wrong. His further submission is that the complainant did ot try to have a further test of the same sample by a suitable pathological center or expert pathologist of the subject under the directive of this Forum . He alleges that the complainant has not even produced the said sample for the purpose of inspection and verification by the Forum. He further submits that undisputedly the O.P-3 is an expert of the subject who has explained each and every techniques and procedures of the tests which he was asked to do by the O.P nos. 1 and 2. The O.P-3 enlightened this Forum about the intricacies involved in the result of such tests. He also argues that the complainant already received treatment for suspected carcinoma in Calcutta and thereafter at Tata Memorial Hospital at Mumbai. Therefore, according to the O.P-3 , after such treatment negative result of Biopsy is possible. He also submits that the O.P-3 has not received any fee or money from the complainant or his relatives. He performed his duties as per direction of the O.P-2. So, the complainant is not a consumer as against the O.P-3. His further contention is that the complainant never informed the O.P-2 or O.P-3 about the result of the bone marrow test at Tata Memorial Hospital before filing this case. Had it been so done by the complainant, the O.P nos. 2 and 3 could have made a cross test with the same sample. The Ld. Advocate further submits that the O.P nos. 2 and 3 has no personal or commercial gain in rendering such services to the patient under treatment of cancer and they have no reason to act negligently for the particular test of the complainant. He further submits that numerous tests were carried on by several doctors but without impleading them the case of the complainant is clearly bad and non maintainable for non joinder of the necessary parties. The Ld. Advocate argues that the bone marrow sample was collected by another agency and it was not collected by the O.P-3 and if there be any fault in the collection ,the result of test may differ , for which, the O.P-3 cannot be held responsible. The Ld. Advocate has lastly argued that the O.P-3 in his evidence has stated in details what tests were performed by him and what procedures were adopted by him but beside the report of Tata Memorial Hospital no other document has been produced and in support of the said report. He submits that the complainant did not examine the doctor of Tata Memorial Hospital who performed the tests and submitted the report and as such the O.P-3 got no opportunity to cross examine that doctor to testify the veracity of that report. He ,therefore, submits that in absence of the evidence of doctor and in absence of any third expert report , there is no reason to hold that the findings of O.P-3 was wrong. The Ld. Advocate refers to the decision of Hon'ble National Commission in case of Ajoy Gupta Vs. Dr. Pradip Agarwal & Ors reported in 2008 (3) WBLR (CPNC) 159, wherein the Hon'ble National Commission has been pleased to dismiss the complaint on the ground that the treatment referred by the Doctor could not be proved to be contrary to established medical norms and the doctor was absolved from the charge of medical negligence. The Ld. Advocate submits that Biopsy test is a Golden Line in the medical Science to detect the presence of cancer cell and here after due diligence the tests were done and the findings was positive and the result corroborated the earlier findings of Aurabinda Seva Kendra. In absence of any proof that the tests were done contrary to established medical norms, the O.P-3 cannot be held responsible for the charge of alleged medical negligence. The Ld. Advocate also refers to the decision reported in 2008(1) WBLR (CPNC) 484 of the Hon'ble National Commission in the case of Sree Kumar vs. Dr. Virendra Mohala and Anr. In the said decision Hon'ble National Commission was pleased to hold that there was no ground for interfering with the judgement as in the second judgement no basis for the conclusion was disclosed.
18.

The Ld. Advocate for the O.P-3 submits that the report of Tata Memorial Hospital does not disclose the basis of his report. He therefore submits that in absence of such basis of its report and on the other hand when the basis of the report furnished by O.P-3 has been disclosed, the instant case filed against the O.P-3 is liable to be dismissed.
19.

In reply to the above arguments, the Ld. Advocate for the complainant submits that no expert report is required in this case as because the evidence of the O.P-3 is sufficient to hold that he is guilty of medical negligence. He further submits that the case cannot be held non maintainable for non impleading other doctors ,if it is proved that there had been medical negligence on the part of the O.P Doctor of this case. He further submits that the complainant did not take any medicine which was prescribed by O.P-1 and he has not died after six months and he is now strong and sound and is present before this Forum and it is sufficient to hold that he was not suffering from cancer and findings of the O.P-3 and the prescription of the O.P-1 was wrong.
20.

Considered the above arguments of the Ld. Counsel for both sides. We refuse to accept the contention of the Ld. Advocate for the O.P-3 that in absence of the other doctors the case filed against him is not maintainable in view of the fact that he is an employee doctor under the O.P-2 and the sample was received by the O.P-2 from the complainant and sent it him for testing. He cannot absolve his responsibility on the ground that he personally did not receive the fees. It is not the case of the O.P-2 that the service of O.P-2 was hired by the complainant at free of cost or he renders voluntary service under O.P-2. We also refuse to accept the argument that the O.P-3 is not responsible as because the sample was collected by private agency and there may be error in regard to the collection of the sample. We are of the view that it was the duty of the O.P-3 to be sure about the correctness of the sample before he proceeded with the tests. The O.P-3 in his evidence has stated in details about the test and the procedure undertaken by him and the complainant got sufficient opportunity to demolish his evidence but we find that his evidence could not be demolished by the complainant. On the other hand the O.P-3 got no opportunity to cross examine the doctor of Tata Memorial Hospital who after testing the sample submitted a contrary view. When two contrary views have been received by this Forum, it is very difficult on its part to hold that the finding of the O.P-3 was completely erroneous only because the patient is still alive and according to his version no treatment of cancer was done or no medicine of cancer was administered upon him.
21.

Our considered opinion is that it was the duty of the complainant to obtain a report from another expert for holding a definite view by us that the tests were done by the O.P-3 negligently or standard care was not taken by the O.P-3 for testing the sample supplied by the complainant. Even for argument sake if we accept that the finding of the O.P-3 was erroneous that cannot be treated as a medical negligence on the part of the O.P-3 unless it is proved tht standard care for the test was not adopted by the O.P-3. In the decision reported in (2008) W.B.L.R (CPJ) the Hon'ble National Commission has been pleased to reject such second report on the ground that the basis for reaching the conclusion,was not disclosed. Relying upon that principle, in absence of basis of report we refuse to accept the report of Tata Memorial Hospital was correct and the report of O.P 3 was incorrect ,though he has disclosed the basis of his report. In absence of any evidence to prove what is to be done not done and what was done not correctly done, we hold that there is no merit in the allegation of the complainant against O.P-3.
22.

Having regard to the foregoing reasons we are of the opinion that the complainant has failed to establish the alleged medical negligence and deficiency in service on the part of the O.P-3. Since the case has not been established against the O.P nos. 1 and 2 , the case also fails against O.P-2 , who was simply recipient of the sample and entrusted the work of pathological test upon O.P-3. Consequently, the claim of compensation and litigation cost also fail against all the opposite parties.
23.

Having regard to the foregoing reasons we are of the opinion that the case of the complainant is liable to be dismissed.
24.

Hence

ordered

that the case be and the same is dismissed on contest against all the O.P's but we pass no order as to the costs in the facts and circumstances of the case.


Member Member President

Dictated and corrected by me


President