By : SMT BANDANA ROY, PRESIDENT

The case of the petitioner in short is that the OP No.1 is an MD (Path) doctor. OP No.2 is the pathological center and OP No.3 is a popular doctor.  The petitioner felt chest problem with high fever and she was under treatment in Popular Nursing Home at Mechada. For better treatment the petitioner came to the chamber of the OP No.3 and the OP No.3 advised her for some medical test/investigations. Then the petitioner went to the pathological laboratory of the OP No.2 on 17.04.16 and OP No.1 after several test prepared the report on 18.04.16. As per his report the petitioner had been suffering from cancer. He mentioned in the report “POSITIVE FLUID SMEARS OFMALIGNANTCESSLS……metastatic pleural effusion”. The petitioner submitted the report to the doctor OP No.3 who also opined that the petitioner had been suffering from cancer and advised for treatment of cancer in any hospital or center and she was under tremendous mental pressure. Thereafter she had been to CMC at Vellore for treatment where some more tests were advised. But on consultation of the said pathological reports at Vellore, the concerned doctor opined that the petitioner had not been suffering from cancer and there doctors prescribed for some medicines. It is the case of the petitioner that due to wrong diagnosis and report of the OP No.1 and OP No.2 the petitioner had suffered severe mental pain and had to incur heavy amount of money for treatment at Vellore. She was at Vellore for her treatment from 27.04.16 to 04.05.16 and had to undergo through various pathological tests under tremendous anxiety.

In the above premises the petitioner had come before this Forum praying for compensation as per prayer of the petition.

All the Opposite parties jointly filed written version and contested the case.

They denied all the material allegations of the petition and submitted inter alia that the instant case is based on false, speculative and concocted story and liable to be dismissed in limini. It is the case of the OPs that OP no.1 and 2 are a pathologist and proprietor of the concerned pathology respectively and they never disclosed the findings  in the report dated 18.04.16 to either the patient or patient party but as per medical ethics and as their duty  they prepared the report within their limitation. The OP No.3 the doctor had intimated the findings of the test reports only to the report bearer. The whole version of the case is highly speculative and without any specific and particular averment and bad in law. Further case of the OPs is that on 17.04.16 the petitioner came to the chamber of  the OP No.3 with high grade fever and chest pain with breathing troubles and the OP No.3 advised her for some pathological test like chest X ray, pleural fluid culture etc. Being satisfied with the report, produced by the patient party the OP No.3 referred the patient to any chest specialist. On the next date on 18.04.16 the patient party produced the report before the OP 3 who again asked the patient party for consultation with a chest specialist. The OP no.3 did not have any further information about the said patient/petitioner till date.

The OP No1 is an MD (Path) and attached to “ANALYSIS”, a pathological center and performed the test  of centrifuges pleural fluid and found on examination that there are “A fair member of atypical cells forming small and large cell balls along with many lymphocytic cells are found. Many lymphocytes are present”. On the basis of the said findings the OP No.1 wrote in the report  “The cytomorphological features suggest positive fluid smears of malingnant cells……Metastatic pleural effusion”. It is further case of this OP that due to inflammatory and infective causes the mesothelial cells of pleural layer become some moirphological changes which deceptively appear like malignant cells.

The OP No. 3 has also not disclosed the findings of the test report as the patient has averred and thus they never caused any sort of anxiety to her.  It is further submitted that the diagnosis of the OPs have been found to be utmost true and correct as the treating doctors of CMS, Vellore have also identified pleural effusion. From the Medical report of CMC dated 07.05.16 it could be seen that still there is no final diagnosis of the cause of pleural fluid accumulation.  It is also evident that still the treatment of the patient is going on and she is still under planned X-ray, USG chest screening etc. which denotes that she is yet to get the final analysis and the petitioner has no justified reason to come before this Forum with the prayers made in the petition and the OPs have prayed for dismissal of the case.

On the basis of the averments made above the only point to be considered in the case is whether the petitioner is entitled to get any relief as prayed for in the petition.

   Decision with Reasons.          

Both the parties filed written argument and we have perused the written argument of both the sides and also the documents filed by the respective ld lawyers very carefully. We have also perused the examination and cross-examination of both parties.

Admittedly on 17.04.16 the complainant had been to the chamber of the OP No.3 with a high grade fever and chest pain with breathing troubles and admittedly after clinical examination doctor advised for some pathological tests like chest X-ray and pleural fluid culture etc besides routine tests of blood. According to the OPs on consulting the chest X-ray report it revealed that right sided pleural effusion i.e accumulation of fluid in pleural portion and OP No.3 referred the patient  to any  chest specialist and duly mentioned it in the prescription  dated 17.04.16.

We have perused the medical reports of the complainant. 

From the report of the pathological laboratory “ANALYSIS” it appears that the OP observed  “ a fair numbers of atypical cells forming small and large cell balls along with many dispersed atypical cells are seen. Many lymphocytesare present. Impression was –  The cytomorphological features suggest POSiTIVE FLUID SMEARS OF MALLIGNANT CELLS .’ Another report of the same pathological laboratory for determination of Adenosine deaminase (ADA) Pleural Fluid  says  that elevated ADA assay is useful in Koch’s serious effusion. ADA value is also increased in acute hepatitis, Cirrhosis of liver etc. Clinical correlation suggested.  The report of the same laboratory dated 17.04.16 on Bacteriological Examination shows that no Acid fast bacilli found. On the same day the complainant tested pleural fluid for Cytochemical Examination where it was found   Quantity – 12 ML. colour- pale yellow, blood - Detected, Coagulum- Absent and Reaction - Alkaline.  Microscopic Examination: Total cell count – 1150 Cells/cumm. Cell type – Neutrophils – 07 %, Lymphocytes – 80 % and Mesothelial cells – 03% , large mononuclear atypical cells balls and dispersed cells  likely to be malignant cells – 10% . the aforesaid are all analysis report of the complainant dated 17.04.16 and 18.04.16 prepared by the OPs. 

Being dissatisfied with the reports the complainant went to Vellore CMC hospital for ascertaining the disease and  for pulmonary examination. We find from the medical report  dated 07.05.16 that doctors of CMC hospital observed - patient developed high grade fever with breathing  difficulty 15 days ago. Her chest X-ray reveal right sided pleural effusion. Pleural fluid analysis showed lymphocytes   predominant pleural fluid with atypical cells. She went there for further evaluation. It is observed that pleural fluid slides were reviewed which was unsatisfactory for evaluation. CT Thorax, Abdomen and pelvis showed right sub pleural opacity with no pleural effusion. Sputum cultures were negative, AFB smears were negative. Probability of a parapneumonic effusion which was revolving was suspected. She was advised to review with the CMC within two months or earlier (in case of worsening). At the review she as planned to repeat chest X-ray and USG screening of the right chest to assess for the status of the pleural effusion.  Recommendations: Review in one month. Plan : Repeat chest X-ray,USG chest screening.

OP no.1 has stated in his examination in-chief that it is very clear from the case record that CMC Vellor has also  yet to give their final opinion over the alleged complain of the necessary patient, including  fluid tests are yet to be done. OP No.1 further stated that it is also to be noted that at Vellore, doctors found no presence of fluid, and that means OP No.1 and 3 have done right and effective initial treatment and cured the patient. OP No.1 also stated that he did not give any final opinion and only commented that tests findings are to be followed clinically and through other relevant further investigations. Moreover neither the OP No.1 nor the OP no.2 personally disclosed or explained the test results to the patient or the patient party following medical ethics and supplied the report in sealed envelope along with slide sample being slide No. FL -436/04/2016 for further analysis. OP no.1 has further stated that whole treatment done by all or any of the OPs by utmost care and caution with ultimate good faith. It is further stated by the OP 1 that from the report  the doctors of CMC Vellor dated 07.05.16  also it could be seen that still there is no final diagnosis  of the cause of pleural fluid accumulation and only probability of a paraphneumonic effusion which was resolving was suspected. According to OP no1  as still final analysis is yet to become the case is clearly a premature one.

We have also consulted the medical report of CMC Vellor and also the report of the Ops and we also hold the same view with the OP No.1 that final opinion over the alleged matter and the necessary tests including fluid tests are yet to be done. Besides that the ld lawyer for the OPs relied on the decision reported in (2005) CPR  9 SC  where it has been hold by Honorable Apex Court  that three weighty considerations must be kept in mind  by any Forum trying issue of medical negligence : Negligence in contest of medical  profession necessarily calls for treatment with difference Difference between occupational  negligence and professional negligence : Standard to be applied to hold professional negligent: simple lack of care, error of judgement or accident is not proof or negligence on part of medical professional :  failure to use special or extra  ordinary precautions which might have  prevented particular happening cannot be standard for judging alleged negligence.

In the instant case the complainant did not make out any case of medical negligence on the part of the OPs. No case has been made out by the complainant that O PNo.1 was not doctor qualified to treat the patient properly.

In view of the aforesaid discussion we are of the opinion that the complainant has failed to prove medical negligence of the OPs and the case is liable to be dismissed.

Hence, it is

ordered,

That the Complaint case NO. 101/16 be and the same is dismissed on contest against the OPs.

Parties do bear their own costs.

Let copy of the judgment be supplied to all the parties free of costs.