CONSUMER COMPLAINT No. 33 of 2010

Date of Filing:  15.03.2010                                                        Date of Disposal:  17.02.2023

Complainants: - 1. Dilip Dey, S/O-Lt. Kalipada Dey, resident of Vill+P.O.-Sehara (Laika Bazar) P.S.- Raina, Dist. Burdwan.

2. Rahul Dey, S/O- Dilip Dey

3. Rakhi Dey, D/O- Dilip Dey both complainant Nos.2 & 3 are the resident of Vill + P.O.- Sehara (Laika Bazar) P.S.-Raina,     Dist. Burdwan, 713423.                                                            -: V e r s u s:-

Opposite Parties: - 1. Carmichal Hospital for Tropical Diseases. School of Tropical Medicine, Service through Superintendent, Carmichal Hospital for Tropical Diseases, School of Tropical Medicine, having its office at Carmichal Hospital for Tropical Diseases, School of Tropical Medicine, Kol-73.

2. Medical College & Hospital, Kolkata Service though the Superintendent, Medical College and Hospital, Kolkata having its office at Medical College & Hospital, Kolkata,88, College Street,kol-73.

3. Tata Memorial Hospital, Service through Superintendent, Tata Memorial Hospital, having office at Tata Memorial Hospital, Dr. Ernest Borges Marg, Parel, Mumbai-400012, India.

4. Drs. Tribedi & Roy, Diagnostic Laboratory, having its office at 92, Park Street, Calcutta -700016.

5. Burdwan Medical College and Hospital, Service through the Superintendent, Burdwan Medical College & Hospital, having its office at Burdwan Medical College & Hospital, Shyamsayer West, Tow. P.O. & P.S. & Dist. Burdwan.

6. Ruby General Hospital Ltd. Service through its Director having its office at Kasba, Golpark, E.M.Bye Pass, Kol-700017.

7. Dr. Santimoy Dutta, having its place of practice Seharabazar Nursing Home, Vill + P.O.- Sehara Bazar, Dist. Burdwan.

Present                    : Mohammad Muizzuddeen                -Hon’ble President.

                                : Mrs. Lipika Ghosh                           - Hon’ble Member.

                                : Mr. Atanu Kr. Dutta.                                   - Hon’ble Member.

Appeared for the Complainants:                            Sri Suvro Chakraborty           Ld. Advocate.

Appeared for the O.P. Nos.1 & 2:                         Sri Atish Majumdar                                Ld. Advocate.

Appeared for the O.P. No.  4:                                                Sri Deb Krishna Sinha              Ld. Advocate.

  F I N A L  O R D E R

On 15.03.2010, the complainant lodged the complaint u/S 12 of the C.P. Act, 1986 against the O.Ps.

The case of the complainants, in brief, is that the complainant No.1 is the father of the complainant Nos.2 & 3. Mrs. Laxmi Dey since deceased had been the wife of complainant No.1 and mother of complainant Nos.2 & 3 who died in premature death due to the act of deficiency in service and the unfair trade practice and the negligent acts of the O.Ps at the age of thirty years, leaving behind the complainants as her legal heirs. The said deceased started to suffering from fever and accordingly  she was first taken to the local doctor - O.P. No.7 but the ailment continued as a result she was taken to different doctors at Burdwan as well as from time to time she had been treated by the doctors of Burdwan Medical College and Hospital-O.P. No.5. During the period of treatment at Burdwan, a number of tests were done and medicines were altered from time to time but the ailment continued, as a result of which she was taken to Calcutta for having better treatment in different institutions wherefrom different tests were suggested for the deceased to be undergone and accordingly the said tests were done by the O.P. No.4.

The deceased had undergone the mainstream of her treatment by way of hospitalization first in O.P. No.1 Hospital thereafter O.P. No.2-Hospital and ultimately in the O.P. No.3 Hospital wherein the patient ultimately succumb to her ailment.

The cause of death of the deceased has been specified by the doctor of O.P. No.3.

After completion of the tests from time to time by the O.P. No.4, the O.P. No.4 diagnosed the deceased to be a patient of actual leukemia. Having the same, the deceased was tremendously shocked when the deceased was under treatment of the O.P. No.2, the O.P. No.2 firstly treated the deceased as a patient of leukemia but O.P. No.2 in spite of having a monetary aid from the Govt. for due treatment of the deceased never acted diligently. Bone marrow testing has been suggested by O.P. No.2 in more than one occasion. The bone marrow was collected but the reports could not be rejected to the patient for due detection of her disease. In spite of having the privilege of testing the deceased afresh the O.P. No.2 at a subsequent stage consulting the slides of the tests of O.P. No.4 diagnosed the disease as a case of transfusion dependent anemia with hepato spelonomegaly.

O.P. No.2 could have easily determined the same diagnosis at an early date, had they been careful and cautious in the review of the older slide of the test of O.P. No.4 can at a later stage detects something else than that of Leukemia that barring negligence what prevented the O.P. No.2 to diagnose the same by examining the same slide at an earlier date is beyond the knowledge of these complainants and in the later review of the older slide of the tests of O.P. No.4 be something else than that of acute Leukemia, then undoubtedly the O.P. No.4 was negligent in diagnosing the patient and the poor deceased who suffered the tremendous mental shock for a prolonged period. Had the O.P. No.2 been careful and cautious at an early date in diagnosing the disease at a patient not suffering from leukemia, the continuous mental suffering of the deceased thinking herself as a patient of acute leukemia had been minimized. That O.P. No.3 diagnosed the deceased to be suffering from different ailments at the earlier stage than that of what has been mentioned in the death certificate issued by O.P. No.3. Moreover in spite of being requested neither of the O.P. Nos.1,2 & 3 supplied the complainant with the papers relating to the treatment of the deceased till this date which itself suggest an act of unfair trade practice and deficiency in service of the O.Ps. The deceased was never treated properly by any of the O.Ps upon her actual ailment which ultimately took the life of the poor deceased thereby causing irreparable loss and injury to the complainants.

The O.Ps were negligent  in treatment of the deceased because they had not followed the code of ethics and regulation of Medical Council of India as well as the provision of the other laws related with the medical science. The O.Ps were not diligent in treating the deceased as the O.Ps never showed the reasonable prudence in treating the deceased and the O.Ps had not done certain acts which are required to be done in treating the deceased. It is also stated by the complainants that as the O.Ps had not done certain tests in spite of having the infrastructure which are required to be done in treating the deceased, they committed deficiency in service and negligence.

The cause of action arose on and from February, 2008 and continued up to 02.05.2009 that is the date of death of the deceased Mrs. Lakshmi Dey.

Upon this background, the complainants prayed for direction to the O.Ps to pay the compensation of rupees seven Lakh to the complainants for their act of deficiency in service, unfair trade practice and negligence along with another compensation of rupees two Lakh Ninety Thousand to the complainant for sufferings and monetary loss for harassment, mental agony and litigation cost of rupees nine thousand.

The notice upon O.P. Nos.1 & 3 has been returned after service but they did not file any W/V. O.P. Nos.2 and 5 appeared and prayed for filing W/V but ultimately they did not file any W/V. The names of the O.P. Nos.6 & 7 have been expunged vide Order No.73 dated 10.11.2014.

The O.P. No.4 has contested the case by filing written versions denying all the material allegations contending, inter alia, that the complainants have no cause of action to file such type of complaint and that the present complaint is not maintainable in law and that the story of the complaint is a concocted story and this O.P. is an unnecessary party for proper adjudication of the matter of the present complaint because of the fact that the pathological report itself speaks regarding investigation of the patient which caused by the competent and expert doctor and that due to negligent act on the part of complainant No.1 regarding treatment of his wife caused such unhappy incident and as such the present complaint is liable to be dismissed. It is also stated by the O.P. No.4 that it is an illegal attempt on the part of the complainant for squeezing money by suppressing the actual facts and also for the purpose of damaging reputation of pathological Centre which is of international reputation.

The specific case of the O.P. No.4 is that the O.P. No.4 is a pathological Centre and there is no system of treatment of any patient but here held different types of tests to ascertain the actual reason of the diseases. According to Medical Science there are different types of tests and till completion of entire tests specifically neither any pathological Centre nor any physician can come a fair conclusion and ignorance on the part of the patient may cause serious and /or fatal to give proper treatment and/or prescribe proper medicine. So it is the duty of the patient and/or his /her party to obey the advice of the doctor and /or pathological Centre.  This O.P. submitted that the bone marrow aspiration and trephine biopsy of Laxmi Dey were carried out by Dr. Sayeed M. Nadeem at the O.P. No.4 Diagnostic Laboratory. The bone marrow procedure has ben uneventful. The slides and biopsy material were examined by Dr. Nadeem and he diagnosed the case as an acute leukemia on both smear and biopsy. He suggested a few more tests for further categorization as there are different types of leukemia varying in the clinical behaviors and required different types of therapy. It is important to maintain that two different types of bone marrow tests i.e., bone marrow aspiration and bone marrow biopsy were performed. The former is examined liquid marrow material after preparation of slides and staining with a set of stains. The latter biopsy which is required for examination of solid tissue after special preparation required several days. The techniques of these two tests are different and they are handled by different technicians. It is also important to mention that a blood sample of the patient is always drawn whenever a bone marrow examination is performed. The blood sample was also examined by automated instruments and manual methods. The report of blood sample also corroborated with diagnosis of acute leukemia. As such all the three samples of the patient were examined by different automated and manual methods by using different chemicals, handled different technical persons but that yielded the same result.

This O.P. further stated that one of the tests suggested by Dr. Nadeem was immunohistochemistry which can provide information regarding the type of cancer and it is needless to mention that this information is very much required to treat cancer effectively. It is surprising to note that this test was not done for more than three months carried out the immunohistochemistry. Dr. Borges was considered to be the best in cancer pathology in this country. She reported the case as infiltration of the bone marrow by NHL diffuse large B cell type in the bone marrow are similar to be the blast cells found in acute leukemia.  There is no difference between those reports and both are haematolymphoid malignancies (cancer of blood/lymph gland tissue).

It is further stated by the O.P. No.4 that another bone marrow trephine biopsy in the name of the same patient was sent to this O.P. laboratory again on 04.09.2008 and this sample was also accompanied by blood sample as per standard protocol. This sample was also reported by Dr. Debasish Banerjee, consultant of O.P. No.4 at O.P. No.4 diagnostic Laboratory. This time both the blood sample and bone marrow biopsy did not reveal any evidence of leukemia or lymphoma. The sample of bone marrow reveals a few changes like focal hypo cellularity and myelofibrosis. These two features can be seen in patients who have been treated by anti-cancer drugs. In view of the above clinical history provided this bone marrow biopsy was also subjected to special stains for cancer i.e., immunohistochemistry. It is to mention here that these slides were again reported by Dr. Borges on 19.11.2008 and she also did not find any evidence of cancer in the biopsy and this time also the patient party delayed and requested for the above test to be carried out more than two months after the second biopsy report and that the patient must have received some form of therapy either allopathic or some other form in between the above two bone marrow tests which responded upon the patient. Moreover the patient party was callous and negligent about the treatment of the patient and the same is evident from the matter of delay to carry out important investigations even though these were advised by the experts of this O.P. laboratory and that several advice were provided to the patient and/or her party which can find it’s reflect from the reports of the O.Ps but the patient nor her party did follow the same and to her expectation denial to follow the instruction of this O.P.  caused such fatal situation. So there is no latches or deficiency in service or negligence on the part of the O.P. on the contrary, there is very much lacuna and/or negligence on the part of patient.

Upon this background the O.P. claims for dismissal of the case.

At the time of filing this case the complainant Nos.2 & 3 were minor and during the pendency of the case they have attained majority and as such notices were issued upon them, so that they can exercise their legal right in respect of the case as per law but after having received of the said notices they did not appear at all.

DECISION WITH REASONS

In order to prove the case, the complainant filed the evidence-on-affidavit and Xerox copies of the prescription dated 10.02.2008 of Dr. Santimoy Dutta and prescription dated 21.02.2008, prescription dated 26.02.2008 etc. of Ruby General Hospital and other Xerox copies of documents.

O.P. No.4 filed questionnaire against the evidence of the complainant. No reply has been filed by the complainant against the questionnaire filed by the O.P. No.4. The O.P. No.4 did not adduce any evidence on affidavit. As per prayer of the complainant, expert was appointed and medical expert submitted his report dated 22.03.2017. The complainant filed questionnaire to the expert but no reply has been filed by the expert rather a certificate dated 20.11.2017 has been filed by the Expert with a request to take opinion of a second expert. Ld. Advocate for the complainant has filed written notes of argument.

On perusal of the case record including the complaint and other materials on record already mentioned in this judgment above that none of the O.P. No.1, 2, 3 & 5 filed the W/V and those are the medical institutions and there is no mention of specific name of the doctor who treated the patient for which the complainant has filed the complaint to materialize the allegation against those O.Ps. Even the complaint itself does not disclose the name of the doctor of the hospital concerned who treated the patient; rather the name of the O.P. No.6 (Ruby General Hospital) & O.P. No.5-Dr. Santimoy Dutta have been expunged in this case. The allegation related to the doctors of hospital mentioned as O.P. Nos.1, 2, 3 & 5 but particularly which hospital treated her has not been mentioned either in the complaint or in the evidence on affidavit even no ticket of any hospital for medical treatment has been filed by the complainant. As such the complainant has failed to substantiate the allegation against the O.P. Nos.1, 2, 3 & 5 though they did not file any W/V. It is the complainant who has to prove his case by giving proper evidence. Therefore this case has now only rest upon the allegation against the O.P. No.4 and the complainant has filed the Xerox copies of report of diagnostic laboratory of O.P. No.4. Now the case rests only upon the substantive piece of the evidence of the complainant and opinion of expert and the report of the diagnostic laboratory of O.P. No.4.

It is alleged by the complainant that after completion of test from time to time by the O.P. No.4, it was diagnosed the deceased to be a patient of acute leukemia for which she was tremendously shocked and firstly the O.P. No.2 treated the deceased as a patient of acute leukemia. O.P. No.2 did not treat the deceased diligently. Bone marrow testing has been suggested by O.P. No.2 in more than one occasion. It is also alleged that at this subsequent stage consulting the slides of the tests of O.P. No.4, the O.P. No.2 diagnosed the deceased as a case of transfusion dependent anemia with hepato splenomegaly. If the later review of the older slide of the tests of O.P. No.4 be something else than that of acute leukemia then undoubtedly the O.P. No.4 was negligent in diagnosing the patient before suffering from acute leukemia. But the Ld. Advocate for the complainant has argued that one test of bone marrow was done on 15.03.2008 before the O.P. No.4 (LAB No. CIM 361) and the report was given on 24.03.2008 and in that report, the O.P. No.4 in comments portion determined the disease as Acute Leukemia by enclosing 6 stained slides (BM/100/08). On another test on 15.03.2008 i.e., bone marrow trephine biopsy was done and O.P. No.4 had given the report on 24.03.2008 along with 5 slides (3424/08) where from it will appear that they diagnosed the disease as Acute Leukemia. The O.P. No.4 in his W/V submitted how and in what process the tests were done in their diagnostic laboratory by which expert doctors in pathology with experience technicians. But the O.P. No.4 in his  written version submitted that another bone marrow trephine biopsy in the name of the same patient was sent to the O.P. –laboratory again on 04.09.2008 and this sample was also accompanied by blood sample as per standard protocol and this sample was reported by Dr. Debasish Banerjee, consultant of O.P. No.4 at Diagnostic Laboratory. This time both the blood samples and bone marrow biopsy did not reveal any evidence of leukemia or lymphoma. In the written notes of argument, the complainant submitted that very unfortunately on the basis of the report so given by the O.P. No.4 by declaring acute leukemia of the patient pull her towards the treatment of leukemia with chemotherapy for long time and failed to diagnose the actual disease.

On 24.03.2008 with comments of acute leukemia and no other report has been filed by the complainant to show that the deceased was suffering from hypo cellularity and myelofibrosis. There is no medical paper filed by the complainant to show that the treatment for leukemia was given to the patient by chemotherapy. Even no death certificate is given by the doctor to show the cause of death of the patient. In connection with this case an expert opinion was called for and the expert Dr. Maitreyee Bhattacharyya, DM (Clinical Hematology) Professor, Instt. of Hematology & Tr. Medicine, Medical College, Kolkata, gave her report dated 02.03.2017. In the said report the expert commented that Mrs. Laxmi Dey initially diagnosed as acute Leukemia. (Bone marrow aspiration & biopsy), attended IHTM with that report, repeat bone marrow was done from IHTM which has not been provided in the document and previous bone marrow done reviewed by Roy & Trivedi reported as bone marrow involvement by diffuse large B-cell lymphoma. However there is no mention of this bone marrow report in the OPD & IPD documents of IHTM provided. It is not clear whether this report was shown to IHTM Doctors by patient’s relatives and repeat bone marrow done from IHTM in September reported by Roy & Trivedi showed no evidence of lymphoma. In this situation the evidence as well as written notes of argument of the complainant reveals that on 15.03.2008 the collection of bone marrow aspiration and biopsy was given to O.P. No.4 and O.P. No.4, after completion of tests, gave report on 24.03.2008 wherein it was diagnosed as acute leukemia but no medical paper is forthcoming to show that the report shown to IHTM towards the patient’s relatives and the expert also gave opinion in this regard and long after again the O.P. No.4 repeated bone marrow done from IHTM in September,2008 and gave report which showed no evidence of lymphoma. In the biological human nature may reveal different  types  of  blood  group  in  different human and subsequently after testing

the blood accurate previous report may not forthcome. That apart after long treatment by chemotherapy as per argument the previous report showing leukemia may not reflect.

Even more the report given by the Roy & Trivedi - O.P. No.4 on September, 2008 has not been produced by any of the parties in this case to show that no evidence of Limphoma. Even the patient did not attend the IHTM after that. The expert opined that the picture of the patient was really confusing and they tried their best to come to a conclusion of this patient and the picture was never in favour of leukemia or lymphoma. This conclusion of the expert to the effect that picture was never in favour of leukemia or lymphoma as in a fix as because the expert commented that the report given by O.P. No.4 shows acute Leukemia and then commented that previous bone marrow reviewed by O.P. No.4 as bone marrow involvement by defusing large B cell type lymphoma. Therefore, how the expert came to a conclusion that the picture was never in favour of Leukemia or Lymphoma.

Moreover the questions put to the expert by the Ld. Advocate for the complainant as no response to the expert and that is why the report of the expert is confusing one. Apart from it, there is no evidence to show that the O.P. No. 4 committed breach of duty to take care rather they tried their best by their expert doctors of pathology and experienced technicians to give the report.

Considering the case as a whole it may be said that there was a wrong diagnosis though not conceded. In this situation, even after adopting all medical procedures as prescribed, a qualified doctor may commit an error. The Hon’ble National Consumer Disputes Redressal Commission and the Hon’ble Supreme Court have held, in several decisions, that a doctor is not liable for negligence or medical deficiency if some wrong is caused in her/his treatment or in her/his diagnosis if she/he has acted in accordance with the practice accepted as proper by a reasonable body of medical professionals skilled in that particular art, though the result may be wrong. In various kinds of medical and surgical treatment, the likelihood of an accident leading to death cannot be ruled out. It is implied that a patient willingly takes such a risk as part of the doctor-patient relationship and the attendant mutual trust. These principles are wholly applicable to this case.

Under the above facts and circumstances of the case, we are of opinion that the complainants have failed to prove their case to the hilt against the O.P. No.4 and other O.Ps.

In the result, the case failed.

Hence, it is

O R D E R E D

that this case being No. CC-33/2010 be and the same is dismissed on contest against the O.P. No.4 and ex parte against other O.Ps (O.P. Nos.1, 2, 3 & 5).

Let a copy of this order be given to the parties on free of cost.

     Dictated & corrected by me.

                      President

         D.C.D.R.C., Purba Bardhaman

               Member                                                              Member                                                 President

     D.C.D.R.C., Purba Bardhaman.                                   D.C.D.R.C., Purba Bardhaman.                         D.C.D.R.C., Purba Bardhaman.