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Govt. of West Bengal
DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION –NADIA
170, DON BOSCO ROAD, AUSTIN MEMORIAL BUILDING
KRISHNAGAR, NADIA, PIN 741101, Telefax (03472) 257788
PRESENT : Shri dAMAN pROSAD BISWAS, PRESIDENT
: SMT MALLIKA SAMADDAR MEMBER
: SHRI NIROD BARAN ROY CHOWDHURY MEMBER
Case No. CC/124/2014
COMPLAINANT : Late Sukumar Sarkar,
S/O. Late Satish Chandra Sarkar,
Sebagram,
P.O. Hahangirpur,,
P.S. Kotwali, Dist. Nadia,
Pin. 741103.
1(a) Sri Kishor Sarkar
Son of Late Sukumar Sarkar of Sebagram,
P.O. Hahangirpur,,
P.S. Kotwali, Dist. Nadia,
Pin. 741103.
1(b) Some Sarkar (Das)
Wife of Sri Souren Das
Near Chakdaha Police Station,
P.O. & P.S. Chakdaha,
Dist. Nadia.
1(c) Mala Sarkar,
Wife of Late Sukumar Sarkar,
Son of Late Sukumar Sarkar of Sebagram,
P.O. Hahangirpur,
P.S. Kotwali, Dist. Nadia,
PIN. 741103.
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V-E-R-S-U-S
OPPOSITE PARTIES / PIN 1.Dr. Rahul Gupta
P.I. Chatterjee Lane,
(Behind PIN Krishnagar Branch)
P.O. Krishnagar, P.S. Kotwali
Dist. Nadia, PIN-741101.
2. Manorama Ultrascan PIN. PIN.,
Ranaghat Unit, Block-I,
172, Berhampore Road,
Opposite to N.B.S.T.C. Bus Stand,
N.H. 34, Near Court More,
P.O. & P.S. Ranaghat.
Dist. Nadia,PIN-741201.
3.Dr. Piyali Biswas, MD Pathology
C/o Manorama Ultrascan Pvt.Ltd.,
Ranaghat Unit, Block-I
172, Berhampore Road,
Opposite to N.B.S.T.C. Bus Stand,
N.H. 34, Near Court More,
P.O. & P.S. Ranaghat.
Dist. Nadia,
PIN-741201.
Ld. Advocate(s)
For Complainant: Pradip Banerjee
For OP/OPs : Dipankar Debnath
Date of filing of the case :02.09.2014
Date of Disposal of the case : 29.11.2022
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Final Order / Judgment dtd.29.11.2022
Complainants Sukumar Sarkar had filed the present complainant against the aforesaid opposite parties under section 12 of the Consumer Protection Act, 1986 alleging deficiency in service and Medical negligence and praying for compensation amounting to Rs.19,00,000.00(Rupees Nineteen Lakhs), Rs.70,000.00(Rupees Seventy Thousand) cost of medical treatment and Rs.20,000.00(Rupees Twenty Thousand) as litigation cost.
Subsequently, aforesaid complainant died and his legal heirs have been substituted as petitioners number 1(a) -1(c).
It is the allegation of the complainant that he was suffering from urinary track problem and went before OP No.1 for medical treatment on 30.06.2013 and he after examining the complainant adviced some investigation and prescribed no medicines. On 09.07.2013 when complainant again went before him then he noted in his prescription that coccibaseli found 1,14,000/ml and he prescribed certain medicines. On 02.08.2013 he again went before the OP No.1 then he noted in the prescription that patient was fit to join in his duty. On 08.08.2013 complainant again went before the OP No.1 then he prescribed antibiotic. On 13.08.2013 OP No.1 again noted that complainant was fit to join. On 22.08.2013 when complainant went before OP No.1 then he after examining him remarked that patient was doing well on catheter and prescribed medicine Rabemac L.S. and Lactipep. As per advise of OP No.1 prostatic biopsy was done on 28.07.2013 before the OP No.3 under OP No.2 and she stated that there is no evidence of malignancy and she diagnosed nodular hyperplasia of prostate. As per report of OP NO.3, OP No.1 treated the complainant. As there was no improvement in the aforesaid treatment, complainant again made a biopsy of the prostate gland on 13.12.2013 and as per report of Apollo Gleneagles Hospital by Dr. Enam Mursed Khan it was found “Prostatic biopsy-Adenocracynoma (Ocinar, not otherwise specified gleason score, 4+4=8, number of cores positive 3/6’, 15% Prostatic tissue involved by tumour lymphovascular and perinearal invasion absent”. Dr. Khan also stated in his report that carcinoma secondary, worse remaining pattern grade 4. OP No.2 & 3 were negligent. Especially OP No.3 was negligent in conducting biopsy test as a result complainant was suffering immensely and practically complainant compelled to take death bed due to negligence of the OP No.3 and life of the complainant became intake. He further alleged that if OP No.2 & 3 diagnosed properly then complainant would not face any critical condition and he is counting his days.
OP No.1 filed W/V and denied and entire allegation of the complaint and further stated that there was no deficiency of service and there was no negligence on his part.
OP No.2 & 3 jointly filed W/V and denied the entire allegations of the complainant and further stated that there was no negligence on their part.
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Trial
During trial complainant Sukumar Sarkar filed affidavit in chief. He also submitted answer as per interrogatories of OP No. 1-3.
OP No.1 Dr. Rahul Gupta filed affidavit in chief and he also submitted answer as per interrogatories of the complainant.
Documents
Complainant produced some documents viz :
1) Prescription of OP No.1 .......................... one sheet.......... Original.
2) Report of Manorama Ultra Scan Private Limited.....one sheet..........Computerised copy
3) Report of Apollo Gleneagles Hospitals Histopathology of Compt.....Two sheets.......Computerised copy
4) Prescription of Apollo Gleneagles Hospitals of Complainant............One sheet............Original
5) Report of Central Pathology of Blood Biochemistry of complainant......................Three sheets....................Original.
6) Report of New Tropical Pathology of Urine Culture & Sensitivity Test of Complainant........................One sheet................................Original.
7) Report of New Tropical Pathology of Examination Report of Urine of Complainant...............One sheet...............Original.
8) Report of New Tropical Pathology of Urine Culture & Sensitivity Test of Complainant.............One sheet......................Original.
9) Report of New Tropical Pathology of Examination Report of Urine of Complainant.................One sheet............................Original.
10) Report of Monorama Ultrascan Pvt.Ltd. of Blood of Complainant..................................Two sheets.......................Original.
11) Report of Manorama Ultrascan Pvt. Ltd. Of Urine of complainant...............................One sheet......................... Original.
12) Report of Monorama Ultrascan Pvt.Ltd. of Blood (Biochemistry) of Complainant...........................One sheet...................Original.
13) Report of Manorama Ultrascan Pvt. Ltd. Of X-Ray of complainant.......................One sheet.............................Original.
14) Report of Manorama Ultrascan Pvt. Ltd. Of Urine Culture & Sensitivity of complainant.......................One sheet.............................Original.
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15) Report of Manorama Ultrascan Pvt. Ltd. Of Blood of complainant ......................................One sheet..........................................Original.
16) Report of Manorama Ultrascan Pvt. Ltd. Of USG of whole Abdomen of complainant..................One sheet..........................................Original.
17) Prescription of Dr. Samir Chowdhury, Surgeon..........One sheet .............Original.
18) Prescription of Dr. Brojeswar Mukherjee, General Medicine .........................................One sheet.....................Original.
19) Prescription of R.K. Gopala Krishna..............One sheet............Original.
20) Report of Central Pathology of Blood of complainant..................one sheet ....................Original.
21) Prescription of Ruby General Hospital......................one sheet .........................original.
22) Report of Ruby General Hospital Ltd of complainant.........................one sheet.........................Original.
23) Report of Ruby General Hospital Ltd. Of Radiography ...............................one sheet..........Original.
24) Report of EKO Nuclear Imaging Centre.............one sheet ............Original.
25) Report of Bengal ONCOLOGY Centre.............one sheet ...............Original.
26) Prescription of Dr. S.S. Ray ............one sheet ..............original.
27) Prescription of Fortis..........one sheet..............original.
28) Prescription of Ruby General Hospital.........one sheet ............original.
29) Prescription of Fortis .............one sheet...........original.
30) Report of SRL Diagnostics.............Two sheets............Original.
31) Report of Fortis of Discharge Summary..........Two sheets...........Original.
32) Report of Fortis of Histopathology..........one sheet...........Original.
33) Discharge Certificate of N.G. Nursing Home .....One sheet .............Original.
34) Report of Fortis of (UROLOGY)..........one sheet..........Original.
35) Prescription of AMRI Hospital..........one sheet ..........Original.
36) Report of SRL Diagnostics...........five sheets.............computerised copy (Digital signed).
37) Prescription of Dr. Anjan Sengupta...........one sheet...........Original.
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38) Prescription of AMRI Hospitals...........one sheet ..........Original.
39) Report of SRL Diagnostics......one sheet......computerised copy(Digital signed).
40) Prescription of AMRI Hospitals............one sheet.........Original.
41) Report of SRL Diagnostics..............seven sheets...........computerised copy.
42) Prescription of AMRI Hospitals.............one sheet ............Original.
43) Report of TATA Medical Center...........one sheet..........Original.
44) Prescription of AMRI Hospitals.........one sheet............Original.
45) Report of EKO X-Ray & Imaging Institute...one sheet...computerised copy.
46) Report of EKO MRI Centre..........two sheets..........Original.
47) Report of EKO Diagnostic Pathology.........one sheet.........Original.
48) Report of DRS. Tribedi & Roy Diagnostic Laboratory...one sheet...Original.
49) Prescription of DR R K GOPALA KRISHNA.........one sheet ........Original.
50) Report of Central Pathology............one Sheet..........Original.
51) Report of Central Pathology...........six sheets..........Original.
52) Report of Apollo Gleneagles Heart Centre Garihat..................three sheets ................computerised copy.
53) Report of Fortis of Estimation sheet.......one sheet............Original .
54) Report of Fortis of Estimation sheet.......two sheets......Original.
55) Report of Fortis of Urology.........one sheet............Original.
56) Report of Fortis...........one sheet..........Original.
57) Report of SRL Diagnostics...........four sheets.........(Digital signed).
58) Report of Hrik Diagnostics............two sheets........Original.
59) Receipt of Fortis...........four sheets............computerised copy.
60) Receipt of Fortis..........one sheet...........Original.
61) Receipt of Fortis..........one sheet..........Original.
62) Impatient Bill of Fortis...........six sheets............Original.
63) OPD case sheet of AMRI Hospital..........two sheets.......... Original.
64) Report of Central Imaging Centre..........one sheet.........Original.
65) Report of Central Pathology .............three sheets..........computerised copy.
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Decision with Reasons
It is the allegation of the complainant as mentioned in the petition of complaint that OP No.3 was negligent in conduction biopsy as a result complainant suffered immensely and compelled to death bed. OP No.3 conducted prostatic biopsy on 28.07.2013 and in his report she stated that there was no evidence of malignancy and she diagnosednodular hyperpalasia. As the complainant Sukumar Sarkar found no improvement in the treatment OP No.1, then he went before Apollo Gleneagles Hospital and Prostatic Biopsy was done under Dr. Enam Mursed Khan. Dr. Khan after conducting prostatic biopsy stated in his report that carcinoma found and was in secondary stage. If OP No.3 examined the prostatic biopsy properly then existence of carcinoma was detected in earlier stage and complainant could arrange proper treatment for his survival but due to negligent pathological examination or submission of wrong report by OP No.3 fact of existence of carcinoma was not reported in due time.
All the opposite parties in their W/V flatly denied the allegation of medical negligence and deficiency in service. They separately stated that there was no negligence on their part. But they could not give any satisfactory explanation in their W/V as to why such type of error was committed in the pathological report of OP No.3. Even they failed to assign proper reason in their affidavit in chief as well as in the written argument.
Let us see pathological report issued by OP No.3 on 28.07.2013 (vide document no.2) which reads as under:-
Microscopy- The section shows benign prostatic glands within fibro muscular stroma. No evidence of malignancy.
Diagnosis – Nodular hyperplasia of Prostrate.
Let us see the pathological report issued by Dr. Enam Mursed Khan of Apollo Gleneagles Hospital on 14.12.2013 which reads as under.
Diagnosis – Prostatic biopsy – Adenocarcinoma (acinar, not otherwise specified); Gleason Score: 4+4=8; number of cores positive 3/6; 15% prostatic tissue involved by tumor; lymphovascular & perineural invasion absent.
Dr. Khan in his report opined that carcinoma was found in the prostate of complainant Sukumar Sarkar and it was in secondary stage. As per record OP NO.3 conducted prostatic biopsy on 28.07.2013. On perusal of prescription of Dr. Rahul Gupta we find that complainant was suffering since 30.06.2013 and visited before the OP No.1 on several occasion. He advised biopsy test and accordingly OP No.3 conducted the biopsy test
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on 28.07.2013. So there was every chance to detect the carcinoma in the prostate of complainant but that was not found in the report of OP No.3. She failed to assign proper reason asto why primary stage or secondary stage of carcinoma was not found in the prostate of complainant.
Entire dispute moves with these 2 reports. Contesting Ops in there W/V tired to establish that there were no negligence on their part by assigning bunch of reasons. But in their W/V they could not establish as to why in the prostatic biopsy of complainant which was done by OP No.3, evidence of adeno carcinoma was not found.
Second report was done after 5 months and on that time adeno carcinoma was found in secondary stage (Grade 4).
So as per medical science there was every possibility to found evidence of adeno carcinoma at the time examination of prostatic biopsy on 28.07.2013 if it would properly done.
We have carefully gun through the decision of Hon’ble N.C.D.R.C in Kurien Joseph (DR) & ANR V.S Govindarajan reported in II (2013)CPJ 296 (NC). In the said case first pathological report does not conclude that patient had carcinoma. It only states that there were some appearances in specimens which were indicative of carcinoma but these needed to be correlated with other tests. Doctor’s reason for not conducting biopsy of abdominal mass or cysts was on ground that it could have caused severe bleeding. It was medically well established that only way to determine if a growth is cancerous is to remove a sample of it and conduct a biopsy on it. In the said case Medical negligence was proved. And Commission awarded compensation.
We have carefully gun through the decision of Hon’ble N.C.D.R.C in Bahadur Singh & ANR Vs. DR H.S. BAJWA & ANR reported in IV (2016)CPJ 623 (NC). In the said case biopsy report not indicated cancer. Patient condition became worst. Test reveal cancer in right breast. Subsequently patient died. In said case deficiency in service of pathological laboratory was proved and Hon’ble S.C.D.R.C. awarded compensation.
We have carefully gun through the decision of Hon’ble N.C.D.R.C in SRI MANJUNATHA LABORATORY & ANR V.S MEENAKSHI reported in i (2009) CPJ 56 (NC). In the said case wrong blood report was found. HIV positive report given to HIV negative report. It was observed that pathologist need to be very careful while given finding. In the said case Hon’ble SCDRC awarded compensation which was upheld by Hon’ble NCDRC.
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We have carefully gun through the decision of Hon’ble N.C.D.R.C in DEO KUMAR SINGH V.S C.B.P SINHA (DR) reported in i (2008) CPJ 205 (NC). In the said case wrong blood report was found. Report of blood group Rh negative was reported to be Rh positive by the OP. Hon’ble NCDRC observed that Rh factor plays extremely important role during pregnancy. Appropriate treatment could not be given due to wrong blood report about Rh factor. In said case it was proved before the Hon’ble NCDRC that it was a case of deficiency in service. Hon’ble NCDRC granted compensation.
In view of the aforesaid discussion we are of the considered view that OP No.3 who was under OP No.2 not yet examined the prostatic biopsy of complainant properly and without proper examination of prostatic biopsy of complainant OP No.3 casually issued the report dtd. 28.07.2013 as a result complainant could not take proper steps for the treatment of adenocarcinoma at the early stage. Due to the aforesaid negligence on the part of OP No. 2 and 3, complainant suffered a lot and compelled to go painful treatment process and chemo therapy.
Accordingly we find negligence on the part of OP No. 2 and 3 and necessary order should be passed against them.
In the result present complainant succeeds.
Hence,
it is
Ordered
that the present case vide no. CC/124/2014 be and the same is allowed on contest against OP No. 2 & 3 and dismissed on contest against OP No.1- but without any order as to costs.
OP No. 2 and 3 jointly or separately shall pay Rs.1,00,000/- ( Rupees One lakh) as compensation in favour of the legal heirs of the complainant i.e present petitioner no.1(a) to 1(c) within one month from
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this order failing which aforesaid amount shall carry interest @ 9% per annum from 29.12.2022 to till the date of actual payment.
Let a copy of this Final Order be supplied to the complainant and OP No. 2 and 3 as free of cost.
Dictated & corrected by me
............................................
PRESIDENT
(Shri dAMAN pROSAD BISWAS,) ..................... ..........................................
PRESIDENT
(Shri dAMAN pROSAD BISWAS,)
We concur,
........................................ .........................................
MEMBER MEMBER (NIROD BARAN ROY CHOWDHURY) (MALLIKA SAMADDAR)
