Date of Filing : 16.09.2021
Date of Disposal: 18.11.2022
DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION
THIRUVALLUR
BEFORE TMT. Dr.S.M. LATHA MAHESWARI, M.A.,M.L, Ph.D (Law) .…. PRESIDENT
THIRU.P.MURUGAN,.MCom., ICWA(Inter)., B.L., ....MEMBER-II
CC. No.41/2021
THIS FRIDAY, THE 18th DAY OF NOVEMBER 2022
M.Lakshmi, W/o.Mohan,
No.70/16, 2nd Cross Street,
Pudur Main Road, Pudur,
Ambattur, Chennai 600 053. .........Complainant.
//Vs//
1.Thiru. Dr.S.Varadarajan,
Ess Vee Hospital,
No.506, M.T.H.Road, Ambattur, Chennai 600 053.
2.Appollo Hospital,
Rep. by its Authorised Signatory,
Department of Histopathology,
No.64, Off P.H.Road,
Vajagaram to Ambattur Main Road,
Ayanambakkam, Chennai 600 095. ...Opposite parties.
Counsel for the complainant : M/s.K.Shanmugam, Advocate.
Counsel for the 1st opposite party : M/s.AAV Partners.
Counsel for the 2nd opposite party : Mr.Moimoona Badsha, Advocate.
This complaint is coming before us on various dates and finally on 11.11.2022 in the presence of M/s.K.Shanmugam Advocate, counsel for complainant, M/s.AAV Partners counsel for the 1st opposite party and Mr.Maimoona Badsha Advocate, counsel for the 2nd opposite party and upon perusing the documents and evidences of both sides, this Commission delivered the following:
ORDER
PRONOUNCED BY TMT. Dr.S.M. LATHA MAHESWARI, PRESIDENT.
This complaint has been filed by the complainant u/s 35 of the Consumer Protection Act, 2019 alleging deficiency in service in wrong intimation about the diagnosis along with a prayer to direct the opposite parties to pay a sum of Rs.25,00,000/- towards compensation for the mental agony and hardship caused to the complainant due to the deficiency in service and to pay a sum of Rs.20,000/- towards medical expenses and transportation to the complainant.
Summary of facts culminating into complaint:-
Being aggrieved by wrong scan report present complaint was filed. It was the case of the complainant that she suffered with breast pain and hence she consulted one Dr.V.Usharani on 28.04.2021 and the said doctor gave prescription to take the medicines and advised to go to Government Hospital and asked the complainant to get scan report. The complainant took scan for breast and for FNAC breast and received the scan report on 04.05.2021. The breast pain has increased even after taking the medicines. The complainant consulted with Dr.Mythili Sukumaran on 05.05.2021. After verification of scan report the doctor referred the complainant to Ess Vee Hospital and advised to meet and consult with the 1st opposite party. After perusing the report and after examining the complainant physically the 1st opposite party asked the complainant to do some examining tests in the laboratory for her health condition towards the breast pain and also biopsy test to be done at Appollo Hospital lab/the 2nd opposite party. Report for blood samples furnished by 1st opposite party and asked the complainant’s husband to give the biopsy test done to the complainant at 2nd opposite party hospital. Accordingly the complainant’s husband had given the biopsy given by the 1st opposite party to the 2nd opposite party. The complainant came to the 1st opposite party hospital along with her husband on 08.05.2021 and a report was given by them and told that the complainant was having breast cancer and surgery to be done immediately and further told it could cost upto Rs.1,00,000/-. Thereafter the complainant again went to Dr.Mythili Sukumaran and informed everything and their poor condition to meet the expenses of the surgery. The said doctor advised complainant to go to Cancer Institute at Adayar and hence the complainant along with her husband went to Adayar Cancer Institute on 10.05.2021 and they did all the examinations once again. On 24.05.2021 upon perusal of the report given by the 1st opposite party the Cancer Institute Doctor Mr.Dinesh Sundararajan gave letter to the 2nd opposite party to bring the OS Slides and Paraffin Block for review. The complainant’s husband on the same day went to the 2nd opposite party hospital and they were provided OS Slides and the complainant’s husband had given the same to the Doctor at Cancer Institute at Adayar. Upon examination the Doctor found that the age given in the OS slides was different. The complainant’s husband on the next day on 25.05.2021 came to the 2nd opposite party and told that they had issued wrong OS Slides. Then they furnished the report but refused to give OS Slides of his wife and advised them not to go to Cancer Institute at Adayar but to go to 1st opposite party hospital. After receipt of the report the complainant’s husband produced the same at Cancer Institute, Adayar and after examining the report the doctor clearly said the earlier report given by the 1st opposite party belongs to one aged person lakshmi, aged 80 years and the report was dated 05.04.2021 whereas the complainant report was dated 06.05.2021 and in the complainant‘s report there is no symptom of Cancer. The complainant states that the act of both the opposite parties is a clear case of negligence and the services rendered by them is on the face of it was deficiency in service due to which the complainant suffered huge mental agony, mental cruelty, mental harassment. Thus aggrieved by the act of the opposite parties the present complaint was filed to direct the opposite parties to pay a sum of Rs.25,00,000/- towards compensation for the mental agony and hardship caused to the complainant due to the deficiency in service and to pay a sum of Rs.20,000/- towards medical expenses and transportation to the complainant.
Crux of the defence put forth by the 1st opposite party:-
The 1st opposite party filed version disputing the complaint allegations contending inter alia that the complainant and her husband approached him at Ess Vee hospital on 05.05.2021 with complaints of pain and a lump in her left breast since Aril 2021. After preliminary examination, the 1st opposite party had advised the complainant to do a blood test and tru-cut biopsy in order to diagnose the complainant. The same was performed at Ess Vee Hospital for which a nominal amount of Rs.800/- was collected from the complainant towards consultation and performing the tru-cut biopsy and Rs.1130/- was collected for the blood test. The blood sample was given for testing at Ess Vee Laboratory. Furthermore the complainant and her husband were given the biopsied sample and were directed to give the same for testing at the 2nd opposite party hospital. It was further submtted that he had administered Inj.TT (BETT 0.5 ml) and prescribed Tab. P-650 mg and had advised the complainant to return with the biopsy test results. It was denied by the 1st oppostie party that complainant and her husband consulted with him thereafter. It was further submitted that he had tested positive for covid-19 and was in isolation since 07.05.2021. The alleged visit of the complainant and her husband made on 08.05.2021 to Ess Vee Hospital was not to his knowledge as he was not present at the hospital. The 1st opposite party further submits that the conversation that transpired between the nurse and complainant not known to him. The 1st opposite party vehemently denied the allegation that he had diagnosed the complainant after perusing her biopsy test report was produced by the 2nd opposite party. The 1st opposite party submits that he had not perused the biopsy test report done by the 2nd opposite party hospital nor had diagnosed the complainant with breast cancer. Since the 1st opposite party had not been deficient in his service, there was no cause of action for the instant complaint as against the 1st opposite party and they sought for the complaint to be dismissed.
Crux of the defence put forth by the 2nd opposite party:-
The 2nd opposite party filed version disputing the complaint allegations stating that as admitted by the complainant sample of tru-cut biopsy was done at Ess Vee hospital. Sample was brought by the complainant’s husband to the 2nd opposite party and the 2nd opposite party laboratory reception received it on 05.05.2021 and the sample was received internally in the histopathology department on 06.05.2021. It was submitted that while the complainant’s husband handed over the biopsy sample he was informed that the report would be e-mailed to Ess Vee hospital, Ambattur. Accordingly, the report was directly emailed to Ess Vee hospital, Ambattur on 12.05.2021. On 24.05.2021 the complainant’s husband brought a request letter from Adyar Cancer Institute requesting 2nd opposite party’s laboratory for paraffin block of “HP-780/2021” of a patient name Lakshmi, aged 80 years and a copy for histopathology report of patient named Lakshmi, aged 80 years. Adhering to the request from the Doctor from Adyar Cancer Institute and since the complainant’s husband already had in his possession of the histopathology report of a patient name Lakshmi aged 80 years the paraffin block of HP-780/2021 was handed over to him on 24.05.2021. The complainant’s husband returned on 25.05.2021 and informed the 2nd opposite party that the complainant’s age was not matching with the block details given by the 2nd opposite party. It was explained to them in detail that both the request from Adyar Cancer Institute and histopathology report that the complainant and her husband had in their possession was of a patient aged 80 years and there was no mistake or error committed by the 2nd opposite party. Later as per the version of the complainant it was found that Ess Vee Hospital had interchanged the report of patient by the name Lakshmi aged 80 years with the complainant’s report. There was no error or mistake committed by the 2nd opposite party as the 2nd opposite party had emailed the folder named M.Lakshmi with the histopathology report of complainant HP-949/2021 directly to Ess Vee Hospital on 10.05.2021. Likewise the 2nd opposite party had emailed the folder named Lakshmi with the histopathology report of the other patient HP-780/2021 to Ess Vee hospital as early as on 08.04.2021. For the mistake committed by Ess Vee Hospital the 2nd opposite party could not be held liable. Moreover there was no negligence or deficiency in service and harm caused to the complainant by the 2nd opposite party. The complainant had filed this complaint for the sole purpose of harassing the 2nd opposite party with a view to extract money from them knowing very well that no error was committed by the 2nd opposite party. Thus they sought for the complaint to be dismissed.
The complainant had filed proof affidavit and documents Ex.A1 to Ex.A19 were marked on their side. On the side of 1st opposite party proof affidavit was filed and document Ex.B1 was marked. On the side of 2nd opposite party proof affidavit was filed and documents Ex.B2 to Ex.B7 were filed by them.
Points for consideration:-
Whether the allegations made against the opposite parties by the complainant pertaining to wrong intimation about the diagnosis to the complainant amounted to deficiency in service and whether the same has been successfully proved by the complainant?
If so to what reliefs the complainant is entitled?
Point No.1:-
On the side of the complainant the following documents were filed in support of the complaint allegations;
Medical prescription given by Dr.V.Usharani dated 28.04.2021 was marked as Ex.A1;
Sakthi scan Report with Receipt dated 29.04.2021 was marked as Ex.A2;
Report of Medi Labs dated 29.04.2021 was marked as Ex.A3;
Letter given by Dr.Mythili Sukumaran to approach the 1st opposite party dated 05.05.2021 was marked as Ex.A4;
Medical prescription and medical test done at the 1st opposite party hospital dated 05.05.2021 was marked as Ex.A5;
Receipt for payment for Histopathology test given by the 2nd opposite party hospital dated 05.05.2021 was marked as Ex.A6;
Report given by the opposite party hospital was marked as Ex.A7;
Medical examination done by the Cancer Institute dated 10.05.2021 was marked as Ex.A8;
Covid virus test report dated 10.05.2021 was marked as Ex.A9;
Corona RT-PCT test report and receipt dated 14.05.2021 was marked as Ex.A10;
Report of Dr.Sundararajan, Cancer Institute dated 24.05.2021 was marked as Ex.A11;
New report given by the 2nd opposite party dated 25.05.2021 was marked as Ex.A12;
Medical report of Dr.Dinesh Sundararajan dated 28.05.2021 was marked as Ex.A13;
Legal notice issued by the complainant to the opposite parties dated 01.06.2021 was marked as Ex.A14;
Letter of the 2nd opposite party sought time for reply notice dated 07.06.2021 was marked as Ex.A15;
Letter of the 1st opposite party sought time for reply notice dated 11.06.2021 was marked as Ex.A16;
Reply notice of the 2nd opposite party dated 28.06.2021 was marked as Ex.A17;
Microscope slides given by the 2nd opposite party dated 24.05.2021 was marked as Ex.A18;
Dialed Call history for calling 2nd opposite party was marked as Ex.A19;
On the side of 1st opposite party the following document was filed in support of their defence;
Copy of medical report of Dr.S.Varadarajan dated 07.05.2021 was marked as Ex.B1;
On the side of 2nd opposite party the following documents were filed in support of their defence;
Joint commission Accreditation certificate dated 14.03.2021 to 13.03.2024 was marked as Ex.B2;
Lab report of Mrs. Lakshmi, 31 years sent in mail by 2nd opposite party to the 1st opposite party dated 10.05.2021 was marked as Ex.B3;
Copy of request letter from Cancer Institute (WIA), Adyar dated 24.05.2021 was marked as Ex.B4;
Copy of Histopathology Report of Mrs Lakshmi, 80 years dated 05.04.2021 was marked as Ex.B5;
Copy of Histopathology Report of Mrs Lakshmi, 31 years dated 06.05.2021 was marked as Ex.B6;
Lab reports of Mrs. Lakshmi, 80 years sent in mail b 2nd opposite party to 1st opposite party dated 08.04.2021 was marked as Ex.B7;
The crux of the oral arguments adduced by the learned counsel appearing for the complainant is that, the opposite parties when approached with pain in the breast had suggested blood sample and biopsy test and when the test results had come wrongly intimated the complainant that she suffers with breast cancer. However, when the complainant contacted the Adayar Cancer Institute the biopsy report was again verified and found that the report given to the complainant was not belonging to her but report of another person in the same name but of different age. Thus alleging deficiency in service on the part of the opposite parties the present complaint was filed and the learned counsel for the complainant sought for complaint to be allowed as prayed for.
On the other hand the 1st opposite party argued that for the pain in the left breast of the complainant, the complainant had approached two different Doctors before coming to the 1st opposite party and after that the biopsy test was taken as per their suggestion. When the complainant visited the 1st opposite party he did not see the report of the complainant as he was suffering with COVID-19 and was in isolation from 07.05.2021. It was admitted by the 1st opposite party that the complainant and her husband consulted him on 05.05.2021 and after that he did not meet them and had not perused any biopsy report nor diagnosed the complainant with breast cancer. Thus he alleged that there is no negligence on his part.
On the other hand on behalf of the 2nd opposite party no oral arguments was adduced and it was represented that the written arguments filed by them may be treated as oral arguments. In the written arguments it was submitted that sample trucut biopsy done at the 1st opposite party’s hospital was brought by the husband of the complainant to them which was received in the histopathology department on 06.05.2021 at 9.14am. The report was directly emailed to the 1st opposite party on 10.05.2021. Further when the complainant’s husband brought a request letter from Adyar Cancer Institute for paraffin block of “HP-780/2021” of a patient named lakshmi, aged 80 years the same was handed over to him on 24.05.2021 at 4.30pm. But on 25.05.2021 the complainant and her husband returned and informed that the 2nd opposite party that the complainant’s age was not matching with the block details given by the 2nd opposite party and it was explained in detail that both the request letter from Adyar Cancer Institute and histopathology report that the complainant and her husband had in their possession belongs to a patient aged 80 years and there is no mistake or error committed by them. Thus alleging that there is no deficiency in service the 2nd opposite party cited decisions rendered by the Hon’ble Supreme Court in Kusum Sharama and Others Vs Batra Hospital & Medical Research Centre and Others reported in (2010) 3 SCC 480 and he also referred the decision rendered by the NCDRC in Kanhaiya Kumar Singh Vs Park Medicare and Research Centre and in N.Krishna Reddy Vs Christian Medical College & Hospital reported in 2007(2) CPR 260(NC). It was submitted that for the mistake done by 1st opposite party they could not be held liable. Thus prayed for dismissal of complaint stating that there is no negligence against them.
We perused the entire material evidences and documents produced by both the parties. As per the Ex.A1 it is seen that the complainant approached Dr.V.Usharani for pain in the left breast. As per Ex.A4 it is seen that the report of the complainant was referred to ESS VEE hospital i.e. 1st opposite party herein. The complainant took the histopathology test suggested by the 1st opposite party with the 2nd opposite party. The report given by them was produced as Ex.A7 wherein the impression is found as INVASIVE MAMMARY CARCINOMA, DUCTAL, NOT OTHERWISE SPECIFIED, PROBABLY GRADE 1-2, TRUCUT BIOPSY FROM LEFT BREAST MASS. But the same seems to be belonging to a patient named Mrs.Lakshmi of 80 years. Further vide Ex.A12 the report given by the 2nd opposite party dated 08.05.2021 was submitted wherein the impression was found as TRUCUT BIOPSY FROM LEFT BREAST LUMP WITH FOCAL NON-SPECIFIC CHRONIC INFLAMMATION, COLLAGENOUS SPHERULOSIS AND PORTION OF INTRADUCTAL PAPILLOMA’. The report of Cancer Institute dated 28.05.2021 after seeing the report of the 2nd opposite party was produced as Ex.A13 wherein it is given as negative for malignancy and only it was blood Hemorrhagic smear. Thus the specific case of the complainant which was established by evidence is that when the complainant’s husband approached the 2nd opposite party for his wife report he was wrongly given the report of another patient named Lakshmi of the age 80 years instead of his wife report and when the same was produced before the 1st opposite party and he also without verifying the same properly had opined that the complainant was suffering with breast cancer and a surgery needs to be done at a cost of Rs.1,00,000/-. Thereafter at the intervention of the Adyar Cancer Institute it came to light that wrong report was given by 2nd opposite party and wrong diagnose done by the 1st opposite party which resulted in deficiency in service and caused severe hardship to the complainant.
In such facts and circumstances we hold that both the opposite parties had committed deficiency in service for the reason given below;
When it is specific defence of the 2nd opposite party that they have not committed any deficiency in service as they have only forwarded the report to the 1st opposite party it is seen that through email they have sent the report to the 1st opposite party and only on perusal of the same the 1st opposite party had opined that the complainant was having breast cancer. It is not proved that the 2nd opposite party had forwarded only the complainant’s report and handed over the same to the complainant’s husband. It is not clear that if the complainant’s correct report was only given to the complainant what is the necessity for the 1st opposite party to wrongly diagnosis the complainant with breast cancer. In the absence of any explanation it is to be held that the 2nd opposite party has only given the wrong report to the complainant’s husband.
The complainant had specifically mentioned that with the report received from 2nd opposite party they approached 1st opposite party on 08.05.2021 who opined that the complainant was suffering with breast cancer. But it is the defence of the 1st opposite party that he did not meet any patient on that date as he was suffering with COVID 19 Positive from 07.05.2021 and produced Ex.B1. In Ex.B1 it is seen that the result was given as positive and the CT value as 18. The Apex Court in Smt. Savita Garg Vs The Director, National Heart dated 12 October, 2004 had held that once the complainant has filed a claim and had initially discharged the burden it is for the hospital and the doctors would treated the patient to prove that there was no negligence involved in their side. Hence by merely producing a report (Ex.B3) it cannot be construed that the same constitute sufficient proof to prove that 1st opposite party was not available on 08.05.2021. It is burden on the part of the 1st opposite party to have proved sufficiently that he was in isolation and he did not meet any patient including the complainant on that specific date when it is specifically contended by the complainant that on 08.05.2021 she was diagnosed by the 1st opposite party as having breast cancer based on the report.
When the 1st opposite party submits that he has not perused the biopsy report done by the 2nd opposite party’s hospital nor he diagnosed the complainant with breast cancer it is not sufficiently explained and proved by the 1st opposite party that how the complainant came to know that she suffers with breast cancer. The cause of action for the entire scenario arose only after the complainant was made to known that she suffers with breast cancer. Hence, it is imminent on the 1st opposite party to explain the said fact.
This commission on the analyses of the entire pleadings and materials was of the presumption that the 2nd opposite party though had possession of both reports of Mrs.Lakshmi of the age 31years and 80 years ought to have given the report belonging to Mrs.Lakshmi of the age 80 years to the complainant’s husband or the case may be that the 2nd opposite party had sent email of Mrs.Lakhsmi age 80 years to the 1st opposite party. However in either circumstances the 1st opposite party should have verified the report whether it be a physical report or email report properly before diagnosing and informing the result of the patient. Both the opposite parties raise allegation against each other that there is no deficiency in service on their part. However we are of the view that both the opposite parties had jointly committed deficiency in service in providing a wrong report and in perusing the report by the 2nd opposite party and 1st opposite party respectively. Thus we answer the point in positive and in favour of the complainant holding that both the opposite parties had committed deficiency in service in wrongly intimating the diagnosis to the complainant.
Point No.2:
With regard to relief to be granted as rightly pointed out by the complainant for a woman of age 31 years when she was diagnosed with the breast cancer would cause severe mental trauma which would affect the entire family. In the present case if the complainant had not gone for a review with the Adyar Cancer Institute she might have undergone the surgery as suggested by the 1st opposite party. In such circumstances we award a compensation of Rs.5,00,000/- to be paid by both the parties jointly and severely to the complainant for the mental agony and hardship suffered by the complainant. We also award Rs.10,000/- towards litigation expenses to the complainant. Thus we answer the point accordingly.
In the result, the complaint is partly allowed against the opposite parties 1 & 2 directing them jointly and severely
a) To pay a sum of Rs.5,00,000/- (Rupees five lakhs only) towards compensation for the mental agony and hardship caused to the complainant within six week from the date of receipt of copy of this order;
b) To pay a sum of Rs.10,000/- (Rupees ten thousand only) towards litigation expenses to the complainant.
Dictated by the President to the steno-typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this the 18th day of November 2022.
Sd/- Sd/-
MEMBER-II PRESIDENT
List of document filed by the complainant:-
Ex.A1 28.04.2021 Medical prescription given by Dr.V.Usharani. Xerox
Ex.A2 29.04.2021 Sakthi scan Report with Receipt. Xerox
Ex.A3 29.04.2021 Report of Medi Labs. Xerox
Ex.A4 05.05.2021 Letter given by Dr.Mythili Sukumarak to approach the 1st opposite party. Xerox
Ex.A5 05.05.2021 Medical prescription and medical test done at the 1st opposite party hospital. Xerox
Ex.A6 05.05.2021 Receipt for payment for Histopathology test given by the 2nd opposite party hospital. Xerox
Ex.A7 ............... Report given by the opposite party hospital. Xerox
Ex.A8 10.05.2021 Medical examination done by the Cancer Institute. Xerox
Ex.A9 10.05.2021 Covid virus test report. Xerox
Ex.A10 14.05.2021 Corona RT-PCT test report and receipt. Xerox
Ex.A11 24.05.2021 Report of Dr.Sundararajan, Cancer Institute. Xerox
Ex.A12 25.05.2021 New report given by the 2nd opposite party. Xerox
Ex.A13 28.05.2021 Medical report of Dr.Dinesh Sundararajan. Xerox
Ex.A14 01.06.2021 Legal notice issued by the complainant to the opposite parties. Xerox
Ex.A15 07.06.2021 Letter of the 2nd opposite party sought time for reply notice. Xerox
Ex.A16 11.06.2021 Letter of the 1st opposite party sought time for reply notice. Xerox
Ex.A17 28.06.2021 Reply notice of the 2nd opposite party. Xerox
Ex.A18 24.05.2021 Microscope slides given by the 2nd opposite party. Xerox
Ex.A19 .............. Dialed Call history for calling 2nd opposite party Xerox
List of documents filed by the 1st opposite party:-
Ex.B1 07.05.2021 Copy of medical report of Dr.S.Varadarajan. Xerox
List of documents filed by the 2nd opposite party:-
Ex.B2 ............... Joint commission Accreditation certificate dated 14.03.2021 to 13.03.2024 Xerox
Ex.B3 10.05.2021 Lab report of Mrs. Lakshmi, 31 years sent in mail by 2nd opposite party to the 1st opposite party. Xerox
Ex.B4 24.05.2021 Copy of request letter from Cancer Institute (WIA), Adyar. Xerox
Ex.B5 05.04.2021 Copy of Histopathology Report of Mrs Lakshmi, 80 years. Xerox
Ex.B6 06.05.2021 Copy of Histopathology Report of Mrs Lakshmi, 31 years. Xerox
Ex.B7 08.04.2021 Lab reports of Mrs. Lakshmi, 80 years sent in mail b 2nd opposite party to 1st opposite party. Xerox
Sd/- Sd/-
MEMBER-II PRESIDENT
