Hon'ble Mr. Sudip Niyogi, President
This complaint relates to an allegation of medical negligence on the part of the Ops filed by the Complainant u/s 12 of the Consumer Protection Act, 1986. In brief, the case of the Complainant is that, having suffered from some problems in his throat, he approached OP No.2 for check-up. The said OP No.2 advised him for some pathological tests. Accordingly, the Complainant went to OP No.1, who conducted the required pathological tests upon him and later issued report showing that the Complainant was suffering from “Metastatic deposits of Carcinoma” which means that he was suffering from Cancer. On receipt of the said report, the Complainant got nervous and depressed and decided to go to Tata Memorial Centre, Mumbai for his treatment. After completion of investigations at Tata Memorial Centre, the Doctor came to the conclusion that he was not suffering from any Malignant Cells. According to the Complainant, he is a poor shop-keeper and by taking loan from money lenders, he had to go to Tata Memorial Centre in Mumbai for his treatment and had to spend Rs.2 lakh in connection with his treatment and other incidental cost. It is alleged that the acts on the part of the OPs put him in a tremendous mental pressure and harassment by way of wrong diagnosis which amounts to severe medical negligence on their part. So, the Complainant prayed for an amount of Rs.2,50,000/- as compensation, Rs.50,000/- for harassment, mental pain and agony and Rs. 20,000/- for litigation cost.
Both the Ops contested this case by filing their separate written statement, written version and also evidence on affidavit. Both the Ops are found to have denied any of medical negligence on their part as alleged by the Complainant. So, they prayed for dismissal of the instant complaint.
On the basis of the contentions of the parties, the following points emerged for determination:
POINTS FOR CONSIDERATION
- Is the Complainant a Consumer as per provision under Section 2(1)(d)(ii) of the C.P. Act, 1986?
- Has this Forum jurisdiction to entertain the instant complaint?
- Is there any deficiency in service on the part of the Ops, as alleged?
- Whether the Complainant is entitled to any relief/reliefs, as prayed for?
DECISION WITH REASONS
Point No.1 and 2.
The Complainant approached the OP No.2 for check-up due to some problems in his throat and subsequently, on the advice of OP No.2, the Complainant went to the OP No. 1 for some pathological tests. The OP No.1 had conducted some tests and submitted her report.
On going through the written complaint, w/v, evidence and documents furnished by both sides, and on a careful consideration, we find that that the Complainant is a “consumer” in accordance with the definition of the term as per Consumer Protection Act, 1986.
The residence of the Complainant and the chambers of both the Ops are within the jurisdiction of this Forum. Therefore, we find that the cause of action arose within the territorial jurisdiction of this Forum and the claimed amount is also within the pecuniary limit of the District Forum. Thus, these points are disposed of in favour of the Complainant.
Point No.3 and 4.
The Ld. Agent for the Complainant submitted during hearing that the Complainant is a petty shop-keeper and not financially well off. As he had some problem in his throat, he approached the Doctor (OP No.2) and following his advice, some tests were conducted by the OP No.1 at her Pathological Laboratory and then issued a report giving the impression that the Complainant was suffering from Cancer. On receipt of that report, Complainant became scared, nervous and depressed and on procuring money by way of loan, he rushed to Tata Memorial Centre in Mumbai where finally it was found that the Complainant was not suffering from any such disease. So, according to the Ld. Agent for the Complainant, the observation or the findings on the part of the Ops were absolutely false, which led the Complainant to suffer immensely both mentally, physically and financially. The aforesaid acts on the part of the Ops, as submitted by the Ld. Agent for the Complainant, amounted to severe medical negligence on their part. So, the Complainant has every right to approach this Forum for adequate compensation.
The Ld. Agent for the Ops, on the other hand, refuting the submission made by his Adversary, argued that there was no question of commission of any medical negligence on the part of the Ops as it would be amply clear from their prescription or report issued by them. It is further submitted that the Complainant unnecessarily with mala fide intention to extract money from the Ops, lodged the instant complaint making some wild allegations about medical negligence against the Ops. According to him, the instant complaint is liable to be dismissed with some cost.
We have carefully gone through the contentions of both the parties, their evidence on affidavit and also the documents filed by them. The Complainant is found to have filed quite a good number of documents from Annexure-1 to Annexure-14.
Annexure-14 reveals that the Complainant approached OP No.2 on 17.07.17 with some problem in his left “cervical lymph node”, when the said OP No.2 prescribed some medicines for 7 days. Again on 24.07.17, OP No.2 prescribed some medicines and also advised for FNAC test. On 27.07.17, the Complainant again approached the OP No.2 with report of FNAC conducted by OP No.1 (Annexure-11). The said report gives the following impression:
“Smear shows cytological features suggestive of metastatic deposits of carcinoma.
A clinical and imaging correlation is suggested.”
That the said report also had –
“ Suggestion : 1) Second opinion before any therapeutic intervention.
2) Immunocytochemistry”.
Having perused the said report, the OP No.2 found it necessary to repeat one FNAC of the patient and accordingly advised him. On 28.08.17, the Complainant visited OP No.2 for the last time and no such test report of FNAC was produced to him and subsequently, the Complainant never approached OP No.2. So, from the role played by the OP No.2 in the entire episode, by no stretch of imagination, it can be held that the OP No.2 showed negligence in the treatment of the Complainant in any manner whatsoever.
Again, as we have pointed out in Annexure-11, which is the copy of the FNAC test report issued by the OP No.1, it was clearly suggested for (i) a clinical and imaging correlation and also suggested for second opinion before therapeutic intervention (ii) Immunocytochemistry. But, what we find thereafter, the Complainant straightway rushed to Tata Memorial Centre in Mumbai for his treatment without undergoing any second test as suggested by both the Ops in their respective report/prescription, for a final conclusion.
Annexure-1 to Annexure-10 are found to be the papers in connection with the treatment of the Complainant at Tata Memorial Centre in Mumbai. These Annexures amply reveal that a series of tests had to be conducted on different dates in order to come to a definite conclusion. So, it is not the case that at Tata Memorial Centre in Mumbai on the very first test conducted thereon upon the Complainant, they came to the conclusion by which it can be said that the test report issued by the OP No.1 was blatantly wrong or that the said report reflected medical negligence on the part of the OP No.1. It is found from those Annexures that the final conclusion for the Doctors who treated the Complainant at Tata Memorial Centre in Mumbai could not be arrived at upon one or two tests. There also, the FNAC Correlation was suggested and revaluation had to be made. The FNAC had to be made on several smears and it was finally opined that there was no evidence on Malignant Cells.
So, at this backdrop, the attempt of the Complainant for fastening the Ops with medical negligence must fail.
It may be true that after initial impression in the test report conducted by OP No.1, Complainant may be shocked and depressed and somehow procuring money, rushed to Mumbai for treatment without making any attempt to conduct second test as advised by the Doctor here but this is nothing to do with medical negligence or something like that on the part of the Ops. Therefore, we hold that the instant complaint is liable to be dismissed with some cost. However, considering the facts and circumstances, we are not going to impose any cost.
Hence, it is
Ordered
That the instant complaint be and the same is dismissed on contest. No order as to cost.
Let plain copy of this Order be supplied to the parties concerned by hand/by Post forthwith, free of cost for information & necessary action, if any. The copy of the Final Order will also be available in the official Website: www.confonet.nic.in.
Dictated and corrected by me.
