: J U D G M E N T :
The brief fact of the case is that the complainant is a retired primary school teacher. A mass / tumour grew upon the head of the complainant. He visited the chamber of the Dr. Samir Chowdhury at Krishnagar. As per advice of Dr. Chowdhury he took admission in Nadia Nursing Home of 61, Kurchipota Lane, Krishnagar. On 29.07.2014, the said mass / tumour was operated in the said Nursing Home.
After operation the said tumour / mass slide with block was sent to OP 1, Jeeban Surakhsha for biopsy. Complainant paid the charges consideration money for the said examination to OP No. 1. After 20 days the report of the test was received. The said report revealed stated that it was a case of cancer. So as per advice of Dr. Chowdhury, complainant visited the chamber of Dr. Goutam Mukhopadhyay (Oncologist) at Kolkata on 27.08.2014. Dr. Mukhopadhay perused the said report and he was not satisfied with the said report. On the self same date as per advice of Dr. Mukhopadhyay the examination was further done at Roy & Trivedy Clinic, but the said report revealed that there was no evidence of malignancy. After getting the said report Dr. Mukhopadhyay stated that it was not a case of cancer. OP No. 1, Jeevan Surakhsaha provided wrong report causing high degree of mental tension of the complainant. He passed the days and months with deep sorrow and thinking of his sure death. There is a clear carelessness / negligence / deficiency in service on the part of OP No. 1 and for getting proper relief he knocked at the door of the Forum. He prayed for compensation of Rs. 10,00,000/-, litigation cost and other reliefs.
OP No. 1 filed a written version stating inter alia, that the case is barred by the provision of law on the ground of non-joinder of the necessary parties. This OP also stated that after knowing such incident, they contacted with the said doctor who had conducted the said test, who after hearing the same had confidently stated about the correctness of the report and the impression ”moderately differentiated squamous cell carcinoma” as found by him is correct to the best of his knowledge and chances of difference of opinion may be due to the examination on different part of slide wherein such finding may not occur and as such before going to the final conclusion of the correctness of the report, the expert opinion is very much needed. The story of complainant is a one sided game. Moreover the complainant has failed to make Dr. Goutam Mukhopadhyay as a necessary party in the instant case for proper adjudication of the dispute between the parties. So this case is not maintainable in this Forum and the present complaint is liable to be dismissed with cost.
OP No. 2, also files written version stating, inter alia, that the complainant was never treated by the OP No. 2 nor he paid any money to OP No. 2 for his treatment. Moreover, the OP No. 2 has no knowledge about the report given by OP No. 1 as the complainant had done all these things personally. So under such circumstances the said complaint is liable to be dismissed/rejected with cost.
Now the Forum is to consider the following points:-
- Whether the complainant is to be treated as consumer or not as per
Consumer Protection Act, 1986.
- Whether there is any gross negligence or deficiency in service on the part of OPs or not,
- Whether the complainant is entitled to get any relief as prayed for.
DECISION WITH REASONS
Point No. 1:
At first we have carefully perused complaint, written version, evidence on affidavit, written argument along with relevant documents and papers filed by the parties. We have perused Exhibit / Annexure – 1, discharge certificate of Nadia Maternity and Nursing Home. From this certificate, it is clear that the complainant was admitted under Dr. S. Chowdhury in this Nursing Home on 29.07.2014 for operation of papilloma scalp and he was discharged from this Nursing Home on the self same date. After operation Dr. S. Chowdhury prescribed some medicines written on said discharge certificate. We have also perused exhibit / Annexure – 3, report of histopathology which clearly speaks the report of cell carcinoma. The above treatment / operation and hystopathological report was done by payment of necessary fees to doctor / Nursing Home / pathology centre. So as per status between the complainant and OPs, the complainant is to be treated as consumer and the OPs are to be treated as service providers as per Consumer Protection Act, 1986. Point No. 1 is thus decided.
Point Nos. 2 & 3:
For reaching the truth first we carefully perused the following documents filed by the complainant.
- Exhibit 1 – Discharge certificate issued by Nadia Maternity and Nursing Home
- Exhibit 2 – prescription of Dr. Samir Chowdhury dtd. 21.05.14
- Exhibit 3 – Report of Histopathology dtd. 14.08.14 issue by Jeevan Suraksha Diagnostic Centre.
- Exhibit 4 – Histopathology / Cytopathology Report dtd. 27.08.14
- Exhibit 5 – Prescription of Dr. Goutam Mukhopadhyay dtd. 27.08.14
- Exhibit 6 – A report of Skull A.P. and LAT. View dtd. 18.09.14
- Exhibit 7 – Extended prescription of Dr. Goutam Mukhopadhyay dtd. 27.08.14 & 24.09.14
The following case laws have been filed by the OP No. 1, Jeevan Suraksha for their defence:-
- Monotosh Das vs. Dr. Santi Sarkar SC case No. 304/A/07 State Commission, West Bengal
- Jacob Mathew (Dr.) vs. State of Punjab & Anr. 111 2005 CPJ 9
- Dr. Ashoke Punamchandji Kothari vs. Subhas Gulabrao Wadekar. Appeal No. A /98 /2516 SC Maharashtra
The above referred cases speak for medical ‘expert opinion’. Without medical ‘expert opinion’ the matter in controversy cannot be adjudicated between the parties. So the final opinion is required from Board of Medical Expert. The medical expert report is highly needed for settlement of present dispute which was strongly argued by ld. counsel for OP No. 1. Ld. Counsel for OP No. 1 also has argued that their decision or opinion in the report is correct and proper as per their knowledge and belief.
Ld. counsel for complainant has also has argued that the complainant and his family members got very nervous when the first report came before them. Ld. Counsel also argued that the complainant had no complication and at present he is not suffering from any ill health. From the date of operation, already the period of more than two years has already elapsed. He is totally fit and he bears a sound health which proves that the report of OP No. 1 is false one. So it is not necessary to take the opinion of board of medical team by production of slide / block.
In reply against question Nos. 17, 18, 19, 20 & 21, the complainant stated that Dr. S. Chowdhury perused the report of Jeevan Suraksha and he was very much surprised. As per advice of Dr. S. Chowdhuri the complainant himself went to the chamber of Dr. G. Mukhopadhyay. On 24.08.2014 the complainant went to Dr. G. Mukhopadhyay of Bengal, Oncology Centre. As per advice of Dr. Mukhopadhyay, the complainant went to Roy & Trivedi Clinic along with slide / block for further examination.
Finally we find that there is no evidence of malignancy as per Annexure / Exhibit – 4.
We have carefully perused the deposition of Dr. Goutam Mukhopadhyay (Oncologist). He stated that there is a difference of opinion of biopsy between the first diagnosis and the second one. He also stated that “as per the available evidence of biopsy report, I did not find trace of cancer as per the second biopsy report” In cross-examination Dr. Mukhopadhyay stated that he advised for second opinion but the patient did not comply with his advice. We also perused the deposition of witness, Dr. S. Chowdhury. He stated that the report of Roy and Trivedi differs from earlier report. It is not possible to comment on the adequacy of the surgical excision from the slides submitted for review. In reply against question No. 11, the OP No 1 stated that chances of error is very negligible. From the said view we may conclude that in pathological examination there may be a chance of error, but the said error is very negligible clearly admitted by OP No. 2. It is the point here that an error is always an error whether it is negligible or not. So the admission of said plea on the part of OP No. 2 goes against Jeevan Suraksha.
From the Annexure / Exhibit 3 – The report of histopathology revealed the moderately differentiated squmous cell carcinoma. From the said report it is clear that the patient was suffering from Cancer but the Annexure / Exhibit 4 clearly revealed that there is no evidence of malignancy. From the said report it is clear that the complainant was not suffering from Cancer. Now the moot question is that whether the complainant was the patient of Cancer or not. In written version the OP No. 1, Jeevan Suraksha stated that the report is correct to the best of their knowledge.
At this stage, the second/another opinion is very much needed to reach the actual truth which is corroborated by exhibit / Annexure – 7. In open Forum the complainant has stated that he is a poor retired primary school teacher and maintains a family of six members including him. Due to financial hardship he has failed to take the second / another opinion. At this point we try to refer following important case laws.
In Jacob Mathew vs. State of Punjab and Anr. (2005) 6 SCC, the Hon'ble Apex Court mentioned clear view regarding distinction between degree of negligence in criminal law and civil law. Simple lack of care constitutes civil liability and it comes within purview of Consumer Protection Act, 1986 whereas the high degree of negligence and recklessness by doctors constitutes criminal liability which comes within the purview of under Section 304A IPC. In Mathew case, direction for consulting with another doctor is required for only criminal complaint and not in respect of civil wrong which comes within the purview of Consumer Protection Act, 1986.
In V.P. Santha Vs. Indian Medical Association, Hon'ble Apex Court decided on the point of simple case or complicated case. In simple case, expert evidence is not required and in complicated case expert evidence is required. The party is at liberty to approach the civil court.
In Martin D’Souza Case, it was held that in all cases expert evidence is very much needed, which is totally inconsistent with the principle of J.J. Merchant Case.
In V. Kishan Rao vs. Nikhil Super Speciailty Hospital Case, the Supreme Court overruled the opinion of Martin D’Souza case and expressed that in all cases the expert opinion is not necessary. When the case is complicated, expert opinion is needed. It should be necessary to follow the procedure laid down in Consumer Protection Act, 1986. It should also be remembered the object of Consumer Protection Act is speedy disposal of the case through summery trial, otherwise, the main object of the Consumer Protection Act would be vitiated. It is the discretion of the members of the Fora, whether the expert opinion is necessary or not. When the expert evidence is not required then the principle of res ipsa loquitur should be applied i.e., the decision is to be taken on the basis of facts only.
In our view this case is very simple one and in simple case, no expert evidence is required, though we have examined Dr. Mukhopadhay (Oncologist) as an expert on Dock. We may apply the principle of res ipsa loquitur which helps to reach the actual truth.
From the discharge certificate dtd. 29.07.14 the papilloma scalp was operated on 29.07.14. On 31.08.16, the argument was heard in presence of both parties. From the date of operation, more than two years has already been expired. The complainant is present before the Forum and stated that he did not feel any health problem. He has no complication at present. For argument sake, if he suffers from cancer, without medical treatment even after expiry of more than two years, it is not possible for him to stay on the earth. Moreover, no chemotherapy was introduced during the said period of two years or more. No medicine (Alopathy / Homeopathy / Aurvedic) was taken during the said period mentioned earlier. So, we don’t accept the report of Jeevan Suraksha Diagnostic Centre and we rely upon the report of Roy and Trivedi Clinic. The Jeevan Suraksha Diagnostic Centre provided wrong report causing mental tension and agony the complainant and the said event created a fear and panic of sure death in the mind of complainant. So the complainant is entitled to get relief against OP No. 1 only and providing wrong report to the complainant causing deficiency in service and gross negligence on the part of the OP No. 1. There is no negligence or deficiency in service on the part of OP No. 2, Nadia Maternity and Nursing Home as the doctor S. Chowdhury of the said Nursing Home operated the mass / tumour of the complainant and advised him to bring the report of biopsy. After operation, it is the duty of the doctor to advise for the report of biopsy for proper diagnosis which is very much usual and accepted procedure taken by almost all doctors as a doctor of Nadia Nursing Home. OP No. 2 adopted correct and justified decision for the sake of complainant. The case succeeds. The point Nos. 2 & 3 are thus decided.
Hence,
Ordered,
That the case CC/2014/150 be and the same is allowed on contest against the OP No. 1 with cost of Rs. 5000/- and dismissed on contest against OP No. 2 without cost.
The OP No. 1 is hereby directed to pay compensation of Rs. 20,000/- for mental pain and agony of the complainant along with cost of Rs. 5000/- i.e., total of Rs. 25,000/- to the complainant within one month from the date of order, in default, the awarded amount shall carry an interest @ 10% per annum, if not paid within the stipulated period of time Rs. 100/- per day shall be deposited by the OP No 1 to the State Consumer Welfare Fund till full realization.
Let the copy of this order be supplied to the parties free of cost.
