Chandigarh

DF-I

CC/118/2017

Vijay Ramola - Complainant(s)

Versus

Government Medical College & Hospital - Opp.Party(s)

Gaurav Bhardwaj Adv.

14 Nov 2019

ORDER

 DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I,

U.T. CHANDIGARH

                                     

Consumer Complaint No.	:	CC/118/2017
Date of Institution	:	07/02/2017
Date of Decision	:	14/11/2019

 

Vijay Ramola s/o Sh. Kailash Chand Ramola r/o #1556, Sector 22-B, Chandigarh.

… Complainant

V E R S U S

1. Government Medical College & Hospital, Sector-32, Chandigarh through its Director
2. Spiral CT & MRI Centre (A unit of K.K. Medicare Pvt. Ltd.) Hospital Site No.3 (Adjoining Chaitanya Hospital), Sector 44-C, Chandigarh through its Managing Director.

… Opposite Parties

CORAM :	SHRI RATTAN SINGH THAKUR	PRESIDENT
	MRS. SURJEET KAUR	MEMBER
	SHRI SURESH KUMAR SARDANA	MEMBER

                                                                    

ARGUED BY	:	Sh. Sumit Batra, Counsel for complainant
	:	Sh. Ashok Gautam, Govt. Pleader for OP-1 with Dr. Kislay Dimiri, Deptt. Of Radiation Oncology; Dr. Deepak Aggarwal, Deptt. Of Pulmonary Medicine and Dr. Uma Handa, Deptt. Of Pathology, Government Medical College & Hospital
	:	Dr. Varun Singh Dhull and Sh. Davinder Sharma, Authorised representative of OP-2.

Per Rattan Singh Thakur, President

1.         The long and short of the allegations are, complainant happened to be a Manager in the State Bank of Patiala, Chandigarh and had a continuous cough problem for more than 15 days in the year 2014. He had visited OP-1 and which had suggested CT scan of his chest and reports suggested abnormal growth called lymph nodes in the lung region. His further case is, on reference he visited the pulmonary section of OP-1 which had conducted the sputum and montier tests to ascertain tuberculosis. Nothing abnormal was detected and the complainant was advised to get broncoscopy test regarding the lymph nodes. The tube was inserted and on receipt of the report of the lab (OP-1) dated 18.12.2014, same was got examined from the pulmonary section and it was diagnosed adenocarcinoma lung i.e. cancer of the lung and was referred to Oncology Department of OP-1.  His further case is, on being referred for PET SCAN, it was got done from OP-2, a private lab, and the report of OP-2 was cancer had spread out of the lungs and spread into the bones of the complainant due to which the bones were likely to become weak and can crack at any stage. On the basis of the report of OP-2, it was diagnosed as a case of Cancer Stage IV. On option given, complainant had opted for chemotherapies and three chemotherapies were got done on 2.1.2015, 31.1.2015 and 23.2.2015.  However, no improvement was noticed and he was shifted to Tata Memorial Hospital, Mumbai for further treatment. The doctors at the said hospital opined, on the basis of a minor test of broncoscopy and PET-CT Scan presence of Stage IV lung cancer could not have been diagnosed. As such, biopsy test was done and after report it was found to be a case of tuberculosis. After settlement of diagnosis, treatment was taken from Dr. K.P. Joshi of Dehradun and after consumption of medicines for nine months now everything is normal.  It is the case of the complainant, he underwent pain and suffering, mental stress on being diagnosed with cancer stage IV, which is a stage of non return, and patient has to be on medicines lifelong. Hence, the present consumer complaint.
2.         OP-1 filed its written reply and raised a number of preliminary objections.  No expert opinion was obtained to falsify its documents and its case is all the tests were done and thereafter diagnosis was settled and even OP-2 had opined cancer had spread to the left pubic bone, sacrum, left iliac bone, 2^nd rib and right transverse. It was opined to be cancer stage IV.  As such, chemotherapy was done on being opted by the complainant.  It is also the case, there may be chances after conducting three chemotherapies cancer was cured and then tuberculosis was suffered by complainant.  On these lines, the cause is sought to be defended.
3.         OP-2 filed its separate written reply and its case is it nowhere opined cancer had spread out from the lungs and spread into the bones of the complainant due to which the bones were likely to become weak and can crack at any stage.  OP-1 had also advised to correlate the report with the clinical findings. As such, there was no medical negligence or deficiency in service on its part. 
4.         Rejoinder to the reply of OP-1 was filed and averments made in the consumer complaint were reiterated.
5.         Parties led evidence by way of affidavits and documents.
6.         We have heard the parties as well as their counsel and gone through the record of the case. After scanning of record, our findings are as under:-
7.         The crux of the pleadings of the complainant is, he sustained and underwent pain, suffering and mental stress, fear of hanging death sentence on being diagnosed with cancer.  His further grouse is, he had also suffered from the side effects of chemotherapy. Had chemotherapy not been administered, then his suffering could have been avoided. 
8.         Per pleadings of the parties, what emerges is the complainant had the problem of cancer or tuberculosis and for that purpose lab tests had to be done alongwith the clinical examination of signs and symptoms of tuberculosis or say cancer.  For that purpose the treatment was required. 
9.         It is the own admitted case of the complainant, OP-1 firstly clinically examined him then took the investigation/CT scan of throax region in pulmonary department, then sputum and montier test thereafter broncoscopy test and lastly PET scan regarding the spread of cancer was brought by the complainant from OP-2 (a private lab) which had confirmed cancer and its spread to other parts of the body.  In other words, on the basis of the report of PET Scan, chemotherapy was advised to the complainant.
10.         We will also refer here to the report of Tata Memorial Hospital, Mumbai annexed with the file, crux of which is reproduced below :-

“Biopsy shows collapsed lung parenchyma, bronchial epithelium & blood.

No nodal tissue identified.

No evidence of malignancy/dysplasia in this biopsy.

Deeper sections have been studied.”

This shows, there was no evidence of malignancy and, therefore, diagnosis was tuberculosis of which treatment was taken. Now after taking the report and treatment of doctor from Dehradun, complainant is fit and fine.  That shows, it was a case of tuberculosis and not a cancer.  However, this fact cannot be lost sight of that the doctors of OP-1 had got conducted various tests and there is no pleading in the consumer complaint that any test for detection of cancer or tuberculosis was left out by them which was available with them and they have deviated from the prescribed standard laid down in the text books.  Merely a wrong diagnosis in good faith based on the report of labs and clinical examination will not bring home the case of medical negligence against OP-1.

11.         OP-1 for its safety and confirmation had also sought PET scan from OP-2 which had shown spread of cancer. After this report, finally OP-1 had suggested chemotherapy or other treatment on which the complainant had opted for chemotherapy and three chemotherapies were undertaken. The basis and grounds to recommend this treatment is the report of OP-2.
12.         We regret to note, in the entire body of the consumer complaint, there is no reference that OP-1 (a Govt. Medical College and Hospital) had charged a specific amount.  It is a Govt. Hospital and the Hon’ble Apex Court in case titled as Indian Medical Association Vs. V.P. Shantha, 1996 AIR 550 held that medical services are covered under the definition of service includes rendering of consultation, diagnosis and treatment both medical and surgical.  In the said judgment it was held or tenor is, where a government hospital charge a token amount for the services or rendered free services, are not covered and the complainant does not happen to be a consumer. The medical services covered are private hospitals who charge handsome amount and the Govt. hospitals who partly render free services and partly paid services are also covered and the hospital which runs totally free service do not fall under the purview of the Consumer Protection Act.  We are sorry to say that no such clear pleading was made by the complainant on this point though there is a reference that Rs.50,000/- was charged for the tests which also includes OP-2.  Thus, we are of the view in so far as OP-1 is concerned, there is no reason to hold it guilty of any medical negligence or deficiency in service.  No science on this earth is perfect so is the case with medical science and the doctors from OP-1 had also taken the assistance of the different labs and finally the PET scan of cancer from OP-2 which is a private lab.  Merely say some human error has crept in the diagnosis will not prove that it was a case of medical negligence against doctors of OP-1.
13.         Now we shall turn to the charge of deficiency in service against OP-2. At the cost of repetition, we may mention here, chemotherapy, with which the complainant had suffered ordeal, was advised on receipt of the report of PET scan of which amount was paid by the complainant to OP-2.  Thus, it shows OP-1 was also misled by OP-2 in its report. 
14.         Now we will refer to the reply of OP-2, a private lab.  In its reply, it had denied the allegation and its case is diagnosis of the patient adenocarcinoma is a histopathological diagnosis and is not made by it in PET Scan.  In its reply, OP-2 further claimed, it had given first possibility of infective lesions in the lungs suggestive of infective pathology and some bony lesions in the left pubic bone, sacrum left iliac bone, 2^nd rib and right transverse process of D4 vertebrae which is highly suspicious of skeletal metastasis.  Now we will refer to Annexure C-4 i.e. the report of OP-2, and the relevant conclusions drawn (at page 24) are reproduced below :-

“1.    Mild FDG avid fibronodular patches the RUL, RLL and LLL of the lung? Infective pathology.

2.     FDG avid right upper paratracheal, right lower paratracheal, anterior mediastinal, and subcarinal mediastinal lymph nodes, as described.

3.     FDG avid ill-defined osseous lesions in the left pubic bone, sacrum, left iliac bone, 2^nd rib and right transverse process of D4 vertebrae, as described. Highly suspicious of skeletal metastasis.”

15.         In the first clause it was opined mild FDG avid fibronodular patches the RUL, RL and LLL of the lung.  In the third clause it was opined FDG avid ill-defined osseous lesions in the left pubic bone, sacrum, left iliac bone, 2nd rib and right transverse process of D4 vertebrae, as described. Highly suspicious of skeletal metastasis.  The metastasis is a cancer and in this opinion they have referred that the lesion has extended to left pubic bone, sacrum, left iliac bone, 2^nd rib and right transverse process of D4 vertebrae meaning thereby it had spread out on these parts. It had expressed the opinion on the basis of PET scan highly suspicious of skeletal metastasis.  Thus, after reading of the report of PET scan they were highly suspicious of skeletal metastasis which had spread out.  In clause 3 of the report, OP-2 had no suspicion of infective pathology i.e. to say bacterial infection of TB.  They were highly suspicious of metastasis.  It is on the basis of spread of the lesion doctors of OP-1 had opined, it was a stage IV cancer meaning thereby they were misled with the report of OP-2. In the reply furnished OP-2 has taken that of the mild FDG avid fibronodular patches the RUL, RLL and LLL of the lung,  infective pathology while under clause 3 it did not insert the word infective but of skeletal metastasis which could have weakened the bone and it was a stage IV of cancer  opined on the basis of this report by OP-1.  This shows, OP-2 was deficient in rendering service to the complainant and it is on the basis of this report regarding the spread of cancer stage IV was opined and OP-1 had recommended chemotherapy. 
16.         The conclusion is, had there been doubt of infective pathology then OP-1 could not have put the complainant on this chemotherapy.  Rather the report of OP-2 had put the complainant on God’s airport waiting for the final call to say goodbye to the world and he was put in fear of hanging death sentence. Thus, we hold, chemotherapy was administered which had various side effects, pain and suffering to the complainant and to us it appears, it is on account of deficiency in service on the part of OP-2 chemotherapy was recommended and was undertaken. We do not say it is a case of medical negligence on the part of OP-2 as it is a lab but certainly lacking off in providing proper service on account of which OP-1 was also misled regarding the conformity of skeletal metastasis and had it inserted the word infective under clause 3 of the report, chemotherapy ought not have been advised and treatment would have been for anti infective therapy in the form of antibiotics meant for tuberculosis.  Thus, we are of the firm view, OP-2 was deficient in rendering service in making the correct report particularly so when the machine test was done and the machine could not have given the incorrect picture, rather a magnified picture i.e. tomography was displayed.
17.         No record was produced by the complainant to prove how much amount was spent by him with regard to hotel, food bills etc. and the exact amount spent there at Mumbai.  We could not lay our hands on any such document.  However, it is evident and writ large that a person who undergoes chemotherapy suffers from pain, harassment and fear of death sentence round the clock hanging over his head. Complainant might have claimed reimbursement of medical bill from his employer.  In these circumstances, the complainant is entitled for global compensation.
18.         In view of the above discussion, the present consumer complaint succeeds and the same is accordingly partly allowed. OP-2 is directed as under :-

1. to pay a global compensation of Rs.2,00,000/- to the complainant on account of pain, suffering caused to him due to its act and conduct, as detailed above, inclusive of hotel charges etc. at Mumbai;
2. to pay Rs.15,000/- to the complainant as costs of litigation.

19.         This order be complied with by OP-2 within thirty days from the date of receipt of its certified copy, failing which, it shall make the payment of the amount mentioned at Sr.No.(i) above, with interest @ 12% per annum from the date of this order, till realization, apart from compliance of direction at Sr.No.(ii) above.
20.         The consumer complaint qua OP-1 stands dismissed with no order as to costs. 
21.         The certified copies of this order be sent to the parties free of charge. The file be consigned.

	Sd/-	Sd/-	Sd/-
14/11/2019	[Suresh Kumar Sardana]	[Surjeet Kaur]	[Rattan Singh Thakur]
hg	Member	Member	President