PER MR. S.M. SHEMBOLE , HON’BLE PRESIDING MEMBER
This appeal is directed against the order dated 26/10/2009 passed by the District Consumer Forum, Amravati in consumer complaint No. CC/09/26, partly allowing the claim directing the appellants to pay compensation Rs.1,30,000/-jointly and severally to the complainant/ respondent and Rs.3,000/- more towards cost of proceeding, etc.
Brief facts giving raise to this revision petition are that,
1. Appellant No. 2- Dr. Ulhas Sangai is running his Pathology at Amravati. He has obtained insurance policy from the appellant No.1- The new India Assurance Co. Ltd. Respondent/original complainant- Ku. Prajakta Satpute had developed the Tumer at the left side of her neck and therefore, she was taken by her father to the hospital of Dr. B.D. Belsare who is E.N.T. Specialist. On 25/11/2006, Dr. Belsare has done Surgical Operation i.e. Biopsy and removed Tumour and referred the same to appellant No. 2- Dr. Ulhas Sangai for pathological test. On Microscopic examination appellant No.2- Dr. Ulhas Sangai gave his negative report dated 02/12/2006 and received charges Rs.400/-.(For the sake of brevity, here in after, the respondent is referred to as “the Complainant” and appellants as “the Opponents”) However, thereafter in the month of February-2007, as the complainant was feeling pains, she was taken to Mahatma Gandhi Institute of Medical Sciences, Kasturba Hospital, Sewagram, Wardha and after doing scanning it was noticed that the complainant is suffering from cancer. Therefore, the complainant filed consumer complaint through her father alleging medical negligence on the part of opponent-Dr. Ulhas Sangai and claimed compensation Rs.1,77,663/-.
2. By written version opponent–Dr. Ulhas Sangai resisted the complaint on the following among other grounds:-
He did not disput that on 25/11/2006 Dr. B.D. Belsare done biopsy of complainant and referred the sample of Tumour to his pathology for pathological test and he gave negative report as Mestastatic Undifferentiated Nasopharyngeal Carcinoma. He also did not dispute that he received the charges of Rs.400/- from the father of the complainant. However, he has categorically denied that he acted negligently while conducting pathological test. He has denied all other adverse averments made in the complaint and submitted to dismiss the complaint.
3. Thereafter, on the request of opponent No.1, the opponent No.2-insurance company is made party to this complaint who filed pursis at exhibit No.10 adopting written version of opponent No.1.
4. On hearing both the sides and considering the evidence on record the District Consumer Forum, Amravati held that the opponent No.1- Dr. Ulhas Sangai acted negligently while conducting pathological test and thereby committed deficiency in service and therefore both the opponents are jointly and severally liable to pay compensation to the complainant. In keeping with this finding the District Consumer Forum, Amravati partly allowed the complaint as noted above.
5. Feeling aggrieved by the same judgment and order the opponents have preferred this appeal.
6. We heard Ld. Counsel for both the sides at length, perused the written notes of argument submitted by Ld. Counsel for both the sides. So also perused the copy of impugned judgment and order, copies of complaint, written version and copies of the pathological test report of opponent No.1- Dr. Ulhas Sangai and subsequent medical report given by Dr. Nitin Gangane from Kasturba Hospital Mahatma Gandhi Institute of Medical Sciences, Sevagram, Wardha.
7. Before adverting to the merits of the case we would like to point it out the settled principles regarding medical negligence as pointed out by the National Commission in the case of Dr. N.T. Subrahmanyam & Anr Vs. Dr. B. Krishna Rao & Anr, 1996(2) CPR 247 that “ A doctor can be held guilty of medical negligence only when he falls short of the standard of reasonable medical care. A doctor cannot be found negligent merely because in a matter of opinion he made an error of judgment. It is also well settled that when there are genuinely two responsible schools of thought about management of a clinical situation, the court could do no greater disservice to the community or the advancement of medical science than to place the hallmark of legality upon one form or treatment.”
In the case of Kusum Sharma & others Vs. Batra Hospital, I (2010) CPJ 29 (SC) the Hon’ble Supreme Court culled out the following principles:-
“i) Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.
ii) Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.
iii) The medical profession is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires.
iv) A Medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
V) In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.
VI) The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence.
VII) Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.
VIII) It would not be conducive to the efficiency of the medical profession if no Doctor could administer medicine without a halter round his neck.
IX) It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessary harassed or humiliated so that they can perform their professional duties without fear and apprehension.
X) The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals/hospitals particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners.
XI) The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals.”
8. Bearing in mind the above principles regarding medical negligence, let us proceed to consider whether the opponent-Dr. Ulhas Sangai acted negligently while conducting the pathological test of the sample of Tumer of complainant which was referred by Dr. Belsare.
9. Undisputedly, the complainant has not produced any expert’s evidence to verify the genuineness of the report given by the Dr. Nitin Gangane from Kasturba Hospital Mahatma Gandhi Institute of Medical Sciences, Sevagram, Wardha so also pertaining to the report of opponent – Dr. Ulhas Sangai. Moreover, undisputedly, there was a gap of more than 2 months in between the date of report of opponent – Dr. Ulhas Sangai and report of Dr. Nitin Gangane. Therefore, it is submitted by the Ld. Counsel for the appellant/opponent that during the period of 2 months there could be chemical changes in the slide, etc. He has also tried to support his submission by relying on the judgment of State Consumer Disputes Redressal Commission, Haryana, Chandigarh in the case of Pearay Lal Verma Vs. Dr. A.K. Gupta & Ors, IX-1993(3) CPR. We find much force in the submission of Mr. Ramteke, Ld. Counsel for the appellants/opponents firstly, because there is no evidence on record indicating that the same slide was referred to Kasturba Hospital Mahatma Gandhi Institute of Medical Sciences, Sevagram, Wardha. Secondly, when undisputedly there was gap of more than 2 months period possibility of chemical changes in the slide can not be ruled out. Moreover, the possibility of development of malignancy within the period of 2 months also can not be ruled out. Further, Mr. Ramteke, Ld. Counsel for the appellants/opponents submitted that Dr. Belsare did biopsy and by removing Mussel form nostril the same was referred to opponent- Dr. Ulhas Sangai, where as in the Kasturba Hospital Mahatma Gandhi Institute of Medical Sciences, Sevagram, Wardha surgery was conducted at the different part i.e. by the left side of the neck and therefore, there could be different reports. On perusal of the medical report of Kasturba Hospital Mahatma Gandhi Institute of Medical Sciences, Sevagram, Wardha and report of opponent- Dr. Ulhas Sangai we find much force in the submission of Mr. Ramteke, Ld. Counsel for the appellants/opponents.
10. However, Mr. Pounikar, Ld. Counsel for the respondent/ complainant submitted that malignancy was already developed prior to the pathological test conducted by the opponent-Dr. Ulhas Sangai but as opponent-Dr. Ulhas Sangai acted negligently while conducting the pathological test, the same was not detected. According to him Malignancy could not have developed within the period of 2 months, etc. Moreover, he has submitted that the same slide which was examined by opponent-Dr. Ulhas Sangai was also referred to Kasturba Hospital Mahatma Gandhi Institute of Medical Sciences, Sevagram, Wardha and found the Malignancy, etc. But we find no force in the submission of Mr. Pounikar, Ld. Counsel for the respondent/complainant, firstly because except the bare word of the complainant there is no evidence on record that the same slide was refereed to Kasturba Hospital Mahatma Gandhi Institute of Medical Sciences, Sevagram, Wardha. Secondly, there is no expert’s evidence indicating that the opponent-Dr. Ulhas Sangai acted negligently while conducting pathological test.
11. Apart from the above facts, undisputedly the scan was not done at the pathology of opponent- Dr. Ulhas Sangai whereas scan was done at the Kasturba Hospital Mahatma Gandhi Institute of Medical Sciences, Sevagram, Wardha and on the basis of scan report Malignance was detected. In our view it is not possible to give exact opinion about the development of Malignance by pathological test only. Therefore, Dr. Belsare who did biopsy of the complainant would have referred the complainant for doing scan. Therefore, on any count it is difficult to accept that opponent-Dr. Ulhas Sangai acted negligently while conducting pathology test and thereby committed deficiency in service as alleged by the complainant. But it appears from the impugned judgment and order that the District Consumer Forum, without considering the evidence on record properly, came to the wrong conclusion that the opponent- Dr. Ulhas Sangai acted negligently while conducting pathology test. Hence such erroneous finding can not be sustained.
12. However, Mr. Pounikar, Ld. Counsel for the complainant relying on the decision of National Commission in the case of Chandigarh Clinical Laboratory Vs. Jagjeet Kaur, IV (2007) CPJ 157 (NC) submitted that giving wrong pathological report itself is sufficient to hold the medical negligence and deficiency in service. He has also tried to support his submission by relying on the judgment of National Commission in the case of Deo Kumar Singh Vs. Dr. C.B.P. Sihna, AIR 2008 (NOC) 673 (NCC). But we find no force in his submission firstly, because both these decisions of National Commission can not be applicable to the present case as in those cases wrong blood report is given therefore, it is held by the National Commission that there was medical negligence and deficiency in service. But in the present case since there was gap of more than 2 months in between the two reports of opponent- Dr. Ulhas Sangai and report of the Kasturba Hospital Mahatma Gandhi Institute of Medical Sciences, Sevagram, Wardha there could be chemical changes and further undisputedly no scan test was done by the opponent-Dr. Ulhas Sangai. His report was based on the pathological test where as the report of the Kasturba Hospital Mahatma Gandhi Institute of Medical Sciences, Sevagram, Wardha, was based on the scan test.
13. In the result the appellants/opponents succeeds and the appeal deserves to be allowed.
Hence, the following order,
ORDER
1. Appeal is allowed and impugned judgment and order is set aside. Consequently, the complaint stands dismissed.
2. No order as to cost.
Dated:-08/10/2012.
