In the District Consumer Disputes Redressal Commission, Hooghly, At Chinsurah.
Case No. CC/151/2022.
Date of filing: 26/07/2022. Date of Final Order: 29/11/2024.
Smt. Rakhi Saha
W/o Guru Prasad Saha
of Natunpara, P.O & P.S Chandernagore,
Dist. Hooghly Pin 712136. ….complainant
-VERSUS -
- Director, Spondan 'Diagnostic centre Pvt. Ltd.
138 A.J.C Bose Road, Kolkata,700014. P.S-Entally
- Dr. Amburanjan Santra
of Spandan Diagnostic Centre Pvt. Ltd.
NRS Hospital, AJ.C. Bose Road, P.S-Entally, Kol -14
…....Opposite parties
- Doctor of Unit I (Chest)
Calcutta National Medical college & Hospital
24, Gorachand Road Benipukur, P-S- Entally, Kol 14.
- CEO, Tata Medical Center
New Town, Kolkata 700160.
- CEO, ILS Hospitals
Regd. Officer GPT Health Care Ltd.,
J.C-25, Sector-III, Saltlake City,
P.S-Salt Lake (South),Kolkata 98.
- Drs Tribedi & Roy,
93, park street, P-S-Park Street, Kolkata 16.
..….proforma opposite parties
Before: President, Shri Debasish Bandyopadhyay.
Member, Debasis Bhattacharya.
FINAL ORDER/JUDGEMENT
Presented by:-
Shri Debasish Bandyopadhyay, President.
Brief fact of this case:- This case has been filed U/s. 35 of the Consumer Protection Act, 2019 by the complainant stating that on and form 25.02.2022 the complainant had passed on various diagonasis by the advice of the proforma opposite Party 10.3 on 09.03.2022 and the complainant had been instructed to PET CT of whole body for her better treatment and as such she was admitted into the proforma opposite party NO, 3 and she had to do PET CT SCAN at whole body by the Opposite party NO. 1 and 2 and for which they have charged is. 15,000/-.
That the complainant had been scaned on 11.03.2022 under th term of PET CT and on 14.03.2022 the report has been issued be the opposite party NO. 1 and 2 with impression that
1. primary GB malignancy.
2. Active metastatic coeliac
3. Active metastatic perihepatic .....
That after being heard at the melisis of the report OF PET CT scan from the proforma opposite party no. 3, the complainant and his family members were spell bound and the complainant have to visited the Radiotherapy department at per advice of the proforma opposite party NO. 3 and on 16.03.22 the Radiology department of Calcutta National Medical College and Hospital Planned for CA guided treatment for GB Union and they had told that the complainant can't take 2 or 3 cheomotherapy as the complainant is suffering 4th stage of cancer and she will survive only 6 to 9 months.
That the complainant and her family members after heard the word ruined mentally and physically and they have suffered huge trauma gradually. They have frustrated a about treatment to the complainant.
That although on 19.03.2022 the complainant being helpless discharged from proforma opposite party NO. 3 on request and the complainant contacted to the proforma Opposite party no. 4 and on and from 21.03.2022 the proforma opposite party no. 4 dignonosised the complainant but they could not find positive cancer for which the proforma opposite party NO. 4 had to advice for chemotherapy.
That on 19.04.2022 complainant has been operated by the General Surgen namely Dr. Rakesh Khan Laparoscopie cholecys- tee-tomy and the said specimen of gall bladder has been Histopathologically/cytopathologically investigated. But there is no definite evidence of malignaney reported by the Dr. Tribedi & Roy Kolkata on 22.04.2022 and for further satisfaction the complainant and her family members (acquired review report on the said blocks and slides from PG Clinic, Kolkata 39 on 26.05.2022.
Complainant filed the complaint petition praying direction upon the opposite party nos. 1 and 2 to pay a sum of Rs. 49,99,999/- for mental pain and agony and litigation cost.
Defense Case:- The opposite party Nos. 1, 2, 5 and 6 contested the case by filing written version denying inter-alia all the material allegation as leveled against them and stated that the complainant was referred on 09.03.2022 for PET-CT of whole body and with that reference the patient party came to the O.P. No. I for getting a date for the same. Usually due to the busy schedule except very emergency or any reference the date for PET-CT is given by the O.P. No. 1 more or less after one month. But as the Patient was referred by the then principal of N.R.S Medical Collage and Hospital a Short date for PET-CT was given and that was 19.03.2022. It is stated here that the PET-CT unit of O.P. No. I is situated within the campus of N.R.S Medical Collage and Hospital and the said unit runs in PPP model with Govt. of West Bengal, so though the patient was a patient of O.P. No. 3 but as she was referred by the then principal of N.R.S Medical Collage and Hospital a Short date for PET-CT was given and that was on 19.03.2022 but the unit accommodated the patient on 11.03.2022 and thus the patient came on 09.03.2022 and the PET scan was done on 11.03.2022 itself. The complainant had not to pay any payment for the said investigation as because it was a free Government service as would be apparent on the face of the document dated 11.03.2022. The Xerox copy of the booking slip and the bill dated 11.03.2022 is enclosed herewith as Annexure I.
That as regards the statement made in paragraph no 4 of the complaint it is submitted that the O.P. No. 2 after the PET-CT scan done on 1.03.2022 prepared the report on 14.03.2022 with the Impressions as follows: -
Whole body PET-CT findings are suggestive of
i) Metabolically active small nodular lesion in GB fossa, involving GB wall and abutting segment of IVB of Liver likely primary GB malignancy.
ii) Active metastatic coeliac, portal, retroperitoneal and left supra- clavicular lymphadenopathy.
iii) Active metastatic perihepatic peritoneal thickening with bilateral pleural effusion.
iv) Mild splenomegaly with diffuse increased activity in spleen.
v) Few small active lymphnodes in bilateral axillary, bilateral inguinal and right external iliac region with preserved hilum - ? inflammatory.
vi) The copy of scan report is annexed herewith as Annexure II.
It is submitted that PET-CT scan is one of the advanced technologies in the advanced medical field, routinely used in cancer management and also used in some other clinical conditions. It detects lesions in human body on the basis of FDG uptake, which is used as radiotracer (radioactive dye) to perform the scan.
Most of the cancerous cells show high FDG uptake. But it is not specific to cancer, many other infective and inflammatory conditions may show high FDG uptake, that's why, PET-CT findings should be confirmed by histopathological examination (Biopsy) before proceeding to further treatment.
During reporting, the doctors carefully review the patient's history and other investigations already done before PET-CT and try to understand the purpose of the study. The doctors thoroughly see the scan part by part, pick up the lesions if any and described in the body of report with its dimensions and uptake value. The finished description, the doctors try to conclude the things in impression part of report, on the basis of overall scan findings and the history provided by the referring physician, the doctors give the likelihood probability of diagnosis, which is again subject to histopathological confirmation.
In the case of patient Rakhi Saha, she was presented with Right sided pleural effusion and high titre of CA 125 and referred to O.Ps to find out malignancy (hidden cancer). It is here to mention that CA 125 is a tumor marker and its high value indicates possibility of various cancer, with highest probability of Ca ovary. The copy of the history sheet of the patient as prepared by the referring doctor is enclosed herewith as Annexure III where from it is found that it has been mentioned in the history sheet "We have a patient with right pleural effusion under evaluation. She has also cholelithiasis with cholecystitis and simple hepatic cyst and elevated CA 125 level, this patient needs whole body PET-CT to rule out any occult malignancy."
While reading the scan, this doctor (O.P. No. 2) found FDG avid lesion in GB fossa, peritoneal thickening, several lymphnodes and pleural effusion, which are described vividly in body of report. All of these findings could be part of a neoplastic process. This doctor could not see any active lesion in ovary, which was of highest probability in this case as per history concerned, so Ca ovary (i.e., cancer in ovary) was not considered. So he has given likelihood of GB malignancy, because there was lesion in GB fossa and it can also spread to nodes, peritoneum and pleura.
Whenever there is likelihood of malignancy reported in PET-CT, it needs to be confirmed by histological examination (Biopsy). Histopathological examination is necessary, not only to confirm the scan findings, but also to rule out any infective/inflammatory causes, which may cause false positive findings in PET-CT scan. And treatment of cancer can be started only if it is proven by Biopsy.
Reporting was done with utmost sincerity and best of this doctor's (O.P No. 2) knowledge and expertise. Data CD of PET-CT scan provided to patient, so that it can be seen by referring clinician and can be reviewed with other experts in the field to have better opinion and own's satisfaction. It is clearly mentioned in the disclaimer on the report that all modern machines/procedures have their own limitation. If there is any clinical discrepancy, this investigation may be repeated or accessed by other tests and it has been clearly stated therein that this report cannot be utilized for any medico legal purpose.
This Doctor is a very experienced doctor having 13 years of experience in this field and having had his study in AIIMS New Delhi which is the most premium institution in the Country. The PET-CT is an investigation and the report is a pointer as to whether the attending doctor will go for biopsy or not. The biopsy is the only confirmative test for detecting malignancy and for starting a treatment of cancer to be sure that the patient was suffering from malignancy the biopsy is a must. This doctor gave his impression on the basis of what he found on the scan provided by the PET-CT machine and other histories. The O.P. No. 1 & 2 reserved the right to refer to the films of scan at the time of argument.
It is submitted that whether on 16.03.2022 the radiotherapy department of Calcutta National Medical College planned for CT guided biopsy form GB union or that they had told the complainant could not take 2 or 3 chemotherapy as she was suffering from 4th stage of cancer or that she would survive only 6 to 9 months, are not admitted by this doctor (O.P No. 2) and the complainant is put to strict proof thereof. It is also submitted that instead of suffering huge trauma if at all the complainant so suffered there should have been a second opinion and review from other institution. So, the instant case is required to be dismissed with costs.
Issues/points for consideration
On the basis of the pleading of the parties, the District Commission for the interest of proper and complete adjudication of this case is going to adopt the following points for consideration:-
- Whether the complainant is the consumer of the opposite parties or not?
- Whether this Forum/ Commission has territorial/pecuniary jurisdiction to entertain and try the case?
- Is there any cause of action for filing this case by the complainant?
- Whether there is any deficiency of service on the part of the opposite parties?
- Whether the complainant is entitled to get relief which has been prayed by the complainant in this case or not?
Evidence on record
The complainant filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition and denial of the written version of the opposite parties.
The answering opposite party nos. 1, 2, 5 and 6 filed evidence on affidavit which transpires the averments of the written version and so it is needless to discuss.
As the op nos. 3 and 4 are appeared the case runs ex parte against them vide order no. 4 dt. 17.10.2022.
Argument highlighted by the ld. Lawyers of the parties
Complainant and opposite party nos. 1, 2, 5 and 6 filed written notes of argument. As per BNA the evidence on affidavit and written notes of argument of both sides are to be taken into consideration for passing final order.
Argument as advanced by the ld. Advocates of the complainant and the opposite party nos. 1, 2, 5 and 6 heard in full. In course of argument ld. Lawyers of both sides have given emphasis on evidence and document produced by parties.
DECISIONS WITH REASONS
The first three points of considerations which have been framed on the ground of maintainability, jurisdiction, cause of action and whether the complainant is consumer in the eye of law or not, are vital issues and so these three points of considerations are clubbed together and taken up for discussion jointly.
For the purpose of arriving at just and proper decisions in respect of the above noted three points of considerations and also to decide the fate of this complaint case, there is urgent necessity of making scrutiny of the materials of this case record and there is also necessity of scanning the evidence on record.
In this record this District Commission after going through the pleadings of the parties finds that the Ops-1,2,5 and 6 in their written versions have adopted the defence alibi that this case is not maintainable and there is no cause of action of the complainant for filing this case and complainant is not at all a consumer in the eye of law.
After going through the materials of this case record this District Commission finds that the complainant is a resident of Chandannagar which is situated within the jurisdiction of this District Commission and as per provision of section 34 of the Consumer Protection Act 2019 this District Commission has territorial jurisdiction to try this case. At the same time this District Commission after making scrutiny of the complaint petition finds that the complainant has claimed compensation of Rs.49,99,999/- against the OP-1&2 for negligence and deficiency of service on the part of the OPs-1&2. The claim of the complainant is below than the pecuniary limit of jurisdiction of Rs.50,000/- of this District Commission. If the matter is adjudicated from this angle it would be revealed that this District Commission has its pecuniary jurisdiction as well.
Now, the question is whether this case is maintainable in its present form, facts and in the eye of law or not? In this connection this District Commission after going through the pleading of the parties finds that the complainant has not highlighted any claim against OP-3 to 6 and on close examination of the evidence on record this district commission finds that there is also not any claim against the OP-3 to 6. As there is no claim against the OP-3 to 6, this case is dismissed against the OP-3 to 6.
On the background of the above noted position this district commission finds that the OP-1&2 conducted the Pet-City of the said patient as per advice of the Principal of NRS Medical College and Hospital and the OP-1 unit is situated within the campus of NRS Medical College and Hospital and the said unit runs in P.P.P model with Government of West Bengal and so although the said patient is a patient of OP-3 and the said patient has not paid any fees because the said OP-1 is a free Government service provider which would be revealed/apparent on the face of the document dt.11.3.2022 which has been annexed as Annuxure-1. Thus it is crystal clear that the complainant has not paid any fees for the said medical examination (Pet-City) to OP-1 and 2. So according to the provisions of section 2(1 ) (d ) of the Consumer Protection Act 1986 as well as as per section2(7) of the Consumer Protection Act 2019, the complainant is not at all a consumer under the OPs.
Moreover, the claim of the OP is that the report prepared by OP-2 is not a proper report and it has been prepared in negligent manner and so there is deficiency of service on the part o the OP-2. But fact remains that in support of this point of contention the complainant side has failed to produce any expert opinion. In this regard it is very important to note that the complainant side also has not prepared for running the issue to the medical expert for passing medical opinion. In this regard it is the settled principle of law that when there is no medical evidence to prove any specific ground of negligence on the part of the Doctor, there is no scope before this District Commission to dismiss this case. This legal principle has been observed by the Hon’ble Division Bench in the case of Dr. S.K. Jhunjhunwala V. Mrs. Dhanwanti Kumar and another which is report in AIR 2018 Supreme Court 4625.
Moreso, in this complaint case the complainant has claimed compensation of Rs.49,99,999/-. But fact remains that in determining the compensation in cases of medical negligence, a balance has to be struck between demands of present claiming compensation, as also interests of those being made liable to pay. This legal principle has been observed by the Hon’ble Apex Court and it is reported in 2024(3) Indian Civil Cases 295(SC). In this instant case the complainant has miserably failed to establish the basis of claiming the said amount of Rs.49,99,999/-. Thus it is crystal clear that this instant complaint case is not maintainable in the eye of law. When this complaint case is not maintainable in the eye of law, it is evident that there is no cause of action of the complainant to file this complaint case.
A cumulative consideration of the above noted discussion goes to show that this case is not maintainable in the eye of law, the complainant is not consumer according to the provisions of consumer protection act 1986 and 2019 and there is no cause of action of the complainant for filing this case.
Thus the above noted three points of considerations beside the jurisdiction point, are decided against the complainant.
When this case is found not maintainable and when it is crystal clear that complainant is not consumer in the eye of law and there is no cause of action for filing this case, this District Commission finds that there is no necessity of making discussion of points of consideration no.4 & 5.
In the result it is accordingly
ordered
that this complaint case being no. 151 of 2022 be and the same is dismissed on contest. No order is passed as to cost.
Let a plain copy of this order be supplied free of cost to the parties/their ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information and necessary action.
The Final Order will be available in the following website www.confonet.nic.in.
