This complaint coming up before us for hearing on 02-04-14 in the presence of Sri P. Ramesh, advocate for complainant and                                 Sri G. Ramalingeswara Rao, advocate for opposite party,                               upon perusing the material on record, after hearing both sides and having stood over till this day for consideration this Forum made the following:-

O R D E R

Per Sri A. Hazarath Rao,  President:-    

          The complainant filed this complaint u/s 12 of the Consumer Protection Act seeking compensation of Rs.15,00,000/- complaining medical negligence; Rs.3,00,000/- towards mental agony and Rs.1,00,000/- towards transportation.

2.   In brief the averments of the complaint are hereunder:

          The complainant knew the opposite party since 40 years as her father was approaching him.   The complainant took her son Pradeep for his leg pain in between ankle and foot and had a small wart.   The said wart though painless caused inconvenience to walk, run and cycling and also while wearing shoes.   The opposite party advised the complainant to have scanning and MRI scanning to the said Pradeep at RK Scan centre, Guntur.   The complainant obtained scan on 29-08-09.   The opposite party cut a piece   in that wart portion for analyzing.   The opposite party did not send that wart portion for biopsy test and did not inform any relevant information regarding that test.   Inspite of staying in opposite party’s hospital for five days he did not disclose the complainant with which disease her son was suffering.   The opposite party avoided to answer when the complainant asked him whether her son was suffering from cancer.  Due to that the complainant was not in a position to get her son treated for cancer at better hospital initially.   The complainant learnt that staff of opposite party’s hospital had thrown away the piece of wart in dust bin.   By that time the complainant approached various hospitals including Indo American Cancer Institute and Research Centre, Hyderabad her son suffered from advanced stage of cancer.  The complainant lost her only child on 12-03-12 due to opposite party’s negligence in not sending the piece of wart for pathological examination.   The complainant suffered a lot mentally due to the demise of her son and lost her total estate of humanly relations.   The complainant’s son was studying               1^st year intermediate with MPC group at Sri Chaitanya College, Guntur.   The complainant’s son is a brilliant student in education.   The complainant on 27-12-12 issued notice to the opposite party claiming compensation of Rs.25,00,000/- for failure of service and negligence.   The opposite party on 28-03-13 gave reply with false allegations.   The complainant could not file the complaint in time due to her illiteracy and becoming upset on the demise of her son.   The complaint therefore be allowed.    

3.  The contention of the opposite party in brief is hereunder:

          The complaint is not maintainable either in law or on facts.  One Parimi Sandeep son of Sambasiva Rao is a patient of opposite party’s father since several years.   The complainant brought her son Sandeep with a complaint of swelling foot since eight months with slow growth, pain since ten days with increase while cycling and walking.  The opposite party admitted the said Sandeep in his hospital on 31-08-09 (mistakenly mentioned as                    03-08-09) at 7.00 pm and after thorough examination of clinical reports and physical examination diagnosed and suspected implantation dermoid and performed surgery on 01-09-09.  The opposite party removed mass and handed over it for biopsy and for pathological examination to patient’s attendants it being a regular and usual practice.  On the day of examination and post surgery there was no indication of cancer clinically or on physical examination before and after surgery.   The complainant failed to get the mass so examined and pathological report to peruse by the opposite party.   On the other hand, the complainant had thrown blame on the opposite party and its staff.   The opposite party on several occasions demanded the complainant regarding biopsy report.  The opposite party is a doctor of repute and highly qualified in his own sphere.   The opposite party was neither negligent nor careless in treating complainant’s son.   The complaint is highly belated, invented and bloated up.   The complainant exaggerated her claim to have wrongful gain. The complaint is clear abuse of the provisions of the Consumer Protection Act.  The consumer forum has no jurisdiction to entertain the complaint. The complaint therefore be dismissed.

4.  Exs.A-1 to A-4 on behalf of complainant and Exs.B-1 to B-4 on behalf of opposite party were marked.

5.  Now the points that arose for consideration in this complaint are:

1. Whether this Forum has no jurisdiction to entertain the complaint?

2. Whether the opposite party committed deficiency in service?

3. Whether the complaint is a belated one?

4. Whether the complainant is entitled to compensation and

          if so to what amount?

          5.  To what relief?

6.  Admitted facts in this case are these:

          1.  The complainant took her son Pradeep to opposite party’s nursing                              home complaining pain in foot.

          2. The opposite party treated the complainant as inpatient during                          31-08-09 to 05-09-09.

          3.  The opposite party performed surgery and removed a piece in the                              affected portion for pathological examination (Exs.B-1 to B-4).

          4. Exchange of notices between the complainant and the

                   opposite party (Exs.A-2 and A-3).

7.  POINT No.1:-   The opposite party treated the deceased Sandeep after taking his fees.   It can therefore be said that the opposite party treated the deceased Sandeep for consideration. We therefore opine that the complainant is a consumer and this Forum has got jurisdiction to entertain the complaint.   We therefore answer this point against the opposite party.

8.  POINT No.2:-  The contention of the complainant is that the opposite party failed to send piece of wart for pathological examination though removed and never cared for that in spite of reminders.   On the other hand, the contention of the opposite party is that he handed over the piece of wart to the attendant’s of patient in order to get pathologically examined and they failed to get the same in spite of reminders.  

9.   The opposite party in Ex.B-3 mentioned as detailed infra:

      “Under spinal anesthesia, the mass excised with linear incision on the sole.   Cystic mass (? Implantation dermoid) and sent for HPE.  Handed over to the patient’s attendants.  Drain placed wound closed in layers”.  

One G. Radhakrishna Murthy aged about 34 years resident of Anthavarapadu village, Vatticherukuru Mandal accompanied the patient P. Sandeep as seen from Ex.B-2.   Ex.B-3 did not disclose to whom the opposite party handed over the said wart to attendants of the patient.   The self interested testimony of both parties is available before this Forum in the form of affidavits.   Under those circumstances, the conduct of both parties will play an important role.   Ex.B-3 did not disclose what happened to the wart. 

10.   In SV Panchori and others vs. Dr. Kaushal Pande and another 1999 (2) CPJ 332 it was held:

“In the present case in decortication surgery, it is possible and easy for the doctor to send a sample as a routine matter for histopathology report and not doing the needful which in our-opinion was negligence and deficiency of service.   There is no reason as to why a specialist Doctor like Dr. Pandey should ignore such a routine matter and when the hospital has all the necessary equipment to handle it.   Mere statement that he did not notice anything abnormal and anything red in colour, does not justify this oversight which costs the patient perhaps not life in directly but in so many other indirect ways has caused him distress, agony and despair before his death”.     

It is not the case of the complainant that nursing home of the opposite party contained facilities for HPE tests.   Under those circumstances, the above decision is distinguishable on facts. 

11.  The complainant did not bring to the notice of this Forum any rule or ethics that the opposite party alone has to send the wart to clinical laboratory for histo-pathological examination. The opposite party treated the patient Sandeep as inpatient from 31-08-09 to 05-09-09 as seen from Ex.B-3 (containing six sheets).   The opposite party is in better position when compared to the patient and his attendants in respect of medical matters.  Even if contention of the opposite party is considered to be true he could have insisted the complainant or his attendant regarding HPE report of the wart while discharging.   The opposite party no where in Ex.B-3 or B-4 mentioned that the complainant was discharged from his nursing home for not bringing the HPE report of the wart and against medical advice.   Non insisting of HPE report of the said wart by the opposite party while discharging the complainant from his nursing home in our considered opinion amounted to major lapse which comes under the definition of deficiency in service in our considered opinion, we therefore answer this point against the opposite party.    

12.  POINT No.3:-   The complainant in para III (g) of her complaint mentioned as detailed below:

     “It is further submitted that because of the complainant’s illiteracy and health condition due to loss of only her one son and was upset and not in a position to file a complaint in timely into this Hon’ble Forum due to that reason the said delay occurred”.  

For this the opposite party contended that the complaint is a belated one.  The complainant for the reasons best known to her did not chose to file a petition under section 24(A) of the Consumer Protection Act seeking condonation of delay mentioning the reasons and the number of days of delay.   The complainant on the other hand, in para III (c) of her complaint mentioned the following:

     “It is further submitted that because of opposite party negligence in identifying the disease by sending the piece of that part of wart for Biopsy test, the complainant’s son is not in a position to get treatment to the cancer to her son at better hospital initially.   That the complainant learnt that because of opposite party hospital staff’s negligence lack of knowledge they thrown the piece of that wart in dustbin.   So that the opposite party hospital not in a position to disclose the disease of the complainant’s son in proper time.   By the time the said disease was advanced and afterwards the complainant approached various hospitals including the INDO AMERICAN CANCER INSTITUTE & RESEARCH CENTER, Banjara Hills, Hyderabad and lost her son on 12-03-12 to opposite party negligence attitude of not sending the piece of wart in timely for detail test shows the negligence in service costs the life of a brilliant student.” 

The complainant along with her complaint filed three documents only i.e., relevant prescribed tests of her son; office copy of legal notice dated                   27-12-12 and office copy of reply notice dated 28-01-13.  Ex.A-2 notice did not disclose when other hospitals who treated complainant’s son diagnosed as suffering from Carcinoma.  The complainant mentioned the same in her complaint.   Since the complainant filed this complaint within two years from the date of the death of her son this Forum registered the case without raising an objection on the aspect of limitation. 

13.  During the course of arguments, the complainant through her advocate filed Ex.A-4 on 14-03-14 i.e., true copy of histopathological report dated            08-07-10 given by Indo American Cancer Institute & Research Center.  The complainant did not file reports or discharge summaries of various hospitals where she got her son treated though alleged.  In Ex.A-4 the following was mentioned:

          “SPECIMEN: Trucut biopsy from swelling in the sole of foot

                             received 1 block and 1 slide labeled 347.

MICROSCOPIC FINDINGS: Sections reveal tiny fragment of tissue comprising of round to oval cells arranged as cords and sheets.   The cells have dark nuclei, indistinct cytoplasmic outlines.  Intervening stroma is desmoplastic.   There are interspersed congested vascular channels.

Immunohistochemistry

Leucocyte Common Antigent (LCA) – Negative

CD99                             - Strong membrane positivity seen

IMPRESSION       : Malignant round cell tumuor.

Morphology in correlation with clinical and immunohistochemical findings are consistent with PNET/Ewing’s sarcoma family of tumors”.       

The complainant was aware of Ex.A-4 report on 08-07-10 while filing complaint.   It is not the case of the complainant that the opposite party negligently treated the patient.   The only deficiency alleged is that the opposite party failed to send the wart for Histopathological examination.   Under those circumstances, the limitation starts from 08-07-10 but not from the date of the death of complainant’s son.   As the complaint was filed on 22-04-13 i.e., more than two years, we are of the considered opinion that the complaint was barred by limitation.      

14.  The complainant though aware of Ex.A-4 while filing complaint did not chose to mention about it for the reasons best known to her.  The complainant withheld Ex.A-4 from the purview of this Forum though pleaded delay.   In the absence of a petition u/s 24(A) of the Consumer Protection Act the averments mentioned by the complainant in para III (g) of her complaint in no way help her for want of number of days of delay besides                             non mentioning of date of cause of action.   The complainant has to blame herself for this situation in our considered view.   In view of the above discussion, we are of the considered view that the complaint is barred by limitation and answer this point against the complainant.

15.  POINT No.4 :-   In view of our findings on point No.3, the quantum of compensation need not be gone into.   We therefore answer this point against the complainant.

16  POINT No.5:-       In view of above findings, in the result the complaint is dismissed without costs.

Typed to my dictation by Junior Steno, corrected by me and pronounced in the open Forum dated this the 9^th day of April, 2014.

MEMBER                                             MEMBER                                         PRESIDENT

 APPENDIX OF EVIDENCE

DOCUMENTS MARKED

For Complainant:

For opposite party:     

        PRESIDENT

NB:   The parties are required to collect the extra sets within a month after receipt of this order either personally or through their advocate as otherwise the extra sets shall be weeded out.