IN  THE CONSUMER  DISPUTES  REDRESSAL  COMMISSION,    KOLLAM

               DATED THIS THE      17^th   DAY OF    DECEMBER    2020

Present: - Sri.E.M.Muhammed Ibrahim, B.A, LLM. President

     Smt.S.Sandhya   Rani. Bsc, LLB ,Member

     Sri.Stanly Harold, B.A.LLB, Member

CC.No.224/2013

M.Somasundaran Nair                       :         Complainant

S/o Sri.Madhavan Nair

Mudapilangil sree

Chandanathope P.O

Kollam.

[By Adv.N.Sarat Chandra Menon]

V/s

1. Managing Director                             :         Opposite parties

          Padmavathy Medical Foundation

         Sasthamcotta, Kollam.

        [Adv.A.Sudheer Bose]

2. M/s Dianova Laboratories

         Manorama Junction

        Good Shephered Road

         Kottayam.

         [By Adv.Sajeev Mathew]

3. Dr.K.B.Sathyamai Amma   

          Sr.Gynecologist

          Department of OBG

         Padmavathy Medical Foundation

         Sasthamcottah, Kollam.

        [By Adv.A.Sudheer Bose]

FINAL  ORDER

Sri. E.M.MUHAMMED IBRAHIM , B.A, LLM,PresidENT

1.This is a case based on a complaint filed U/s 12 of the Consumer Protection Act 1986.

          2.The averments in the complaint in short are as follows:-

          The complainant’s wife Smt.Sheela approached the 1^st opposite party for treatment in the Gynaec department on 17.02.2011 with complaint of vaginal bleeding for two weeks.  She was examined by the 3^rd opposite party Sr. Gynaecologist admitted her at that hospital and advised certain drugs. Even after taking the drugs prescribed by the 3^rd opposite party Smt.Sheela was not cured of the complaints.  Therefore the 3^rd opposite party advised Smt.Sheela shall undergo a Hysterectomy operation for removal of uterus, ovaries etc.  Accordingly the 3^rd opposite party conducted operation on Smt.Sheela on 13.04.2011 and sent specimen to the 2^nd opposite party laboratory,  which is an agency of 1^st opposite party for a histopathology report.  The said sample was labelled as biopsy No.B/1416/11.  The Histopathology report dated 19.04.2011 on the specimen was issued by the 2^nd opposite party stating that the Proliferative Endometrium Adenomyosis Lie Omyomatour polyp.  After verifying the histopathology report the 3^rd opposite party advised the complainant that there was nothing abnormal and patient would get better soon.

          3. But the physical condition of Smt.Sheela worsened day-by-day.  She continued her treatment with the 1^st opposite party on the basis of the assurance given by the 3^rd opposite party.  The 3^rd opposite party at no point of time gave the slightest doubt to the complainant that the condition of the patient was worsening, nor did  refer the patient to a higher centre for expert management.  Towards the middle of December 2011, the patient was suffering from severe lower abdominal pain and dysuria that she was taken to the 1^st opposite party for consultation and treatment.  The 3^rd opposite party conducted an Exploratory laparotomy on 15.12.2011 under General anaesthesia on the patient and a mass compressing the left lower ureter was removed.  The said mass was sent by the 1^st opposite party to M/s.DDRC SRL Diagnostic Services Pvt.Ltd., G-131, Panampally Nagar, Ernakulam for a Biopsy/cytology Report.    On 20.12.2011, M/s.DDRC issued a Biopsy/cytology report which made a diagnosis of Lipoleiomyosarcoma.  On that day itself Smt.Sheela was discharged from the 1^st opposite party hospital.  The 3^rd opposite party did not even at this point of time advised the complainant about the seriousness of illness nor referred the patient to a higher centre for expert management.  The acts and/or omissions of the 3^rd opposite party as stated above amount to serious lapses on its part which amounts to negligence and deficiency in services on account of which the patient Smt.Sheela and the complainant suffered severe damages, as revealed by later events.  The 1^st opposite party is vicariously liable for the acts and/or omissions of the other opposite parties.  The complainant on his own volition took his wife Smt.Sheela to M/s Regional Cancer Centre(RCC), Thiruvananthapuram for further treatment and care.  The complainant collected the slides and blocks of the patient from the 1^st opposite party and gave to M/s.RCC for pathology investigation.  The surgical path (Review) Report dated 04.01.2012 issued by M/s.RCC on the basis of specimen labelled as 1416/11 made a diagnosis of Leiomyo sarcoma intermediate grade-uterus.  In other words, the specimen taken by the 1^st opposite party was reviewed by M/s.RCC and diagnosed the illness as ‘Leiomyo sarcoma’ meaning cancer.  This shows that the Histopathology Report dated 19.04.2011 on the basis of which the 3^rd opposite party decided the treatment and continued the same until December 2011 was erroneous. 

4. The patient and his family members were blind folded by the 1^st opposite party hospital and deprived of proper medical treatment and attention to the patient at the appropriate centre at the appropriate time.  The natural history of every ‘sarcoma’ is early detection-better cure.  Had there been a correct diagnosis of the illness at the initial stage, there would have been better results in the outcome of treatment.  The 3^rd opposite party erred in deciding the treatment to be given to Smt.Sheela, for whatever reasons.  The 3^rd opposite party failed to take care of the patient Smt.Sheela which resulted in damage to the complainant.  There has been a breach of duty on the 3^rdopposite party which resulted in damages to the complainant.  Smt.Sheela had to undergo treatment in RCC for a long period of time from January 2012 until her death on 1^st April 2013.  During this period Smt.Sheela had to undergo many cycles of chemotherapy and exploratory laparotomy.  The complainant himself and his family had to suffer severe losses and irreparable damages due to the deficiency in service on the part of the opposite parties in treating the wife of the complainant.  Hence the opposite parties are responsible for paying damages to make amend the loss.  The complainant on 28.06.2013 sent a lawyer notice to the opposite parties 1 and 2.  The 1^st opposite party  refused to receive the notice.  The opposite parties ignored the request of the complainant and also the letter requesting to furnish the certain medical records,  though they were bound to  furnish the same as per rules.  Opposite parties 1 and 2 have not complied with the request so far and thereby violated  the provisions of Indian Medical Council Regulations.

          5. Due to the death of Smt.Sheela the complainant and his family has been deprived of the care, comforts and companionship of a person they loved so much.  The said loss cannot be equated with money.  The complainant originally prayed to award a compensation of Rs.10 lakhs by the opposite parties but subsequently it was amended and enhanced Rs.20 lakhs. The complainant further pray to award interest and costs.

          6. Opposite parties No.1 to 3 resisted the complaint.  Opposite party No.1 & 3 filed a joint written version raising the following contentions.  The complaint in not maintainable either in law or on facts.  There is no negligence or deficiency in service as alleged in the complaint.  However opposite party No.1&3 would admit that  the patient approached the 3^rd opposite party doctor at the 1^st opposite party hospital with complaints of bleeding pv with a history of papillary carcinoma thyroid 20 years back and under follow up treatment with radio iodine.  The 3^rd opposite party conducted detailed examination and she was found to have bleeding and pelvic infection and advised USG abdomen and pelvis including trans vaginal sonological examination.  USG reported fibroid on posterior wall of uterus, thickened endometrium with polyp, hydrosalpinx right side.  She was advised haemostatic drugs and antifibroid to control bleeding and infection and for a D&C after controlling infection.  The histopathological report of  D&C  endometrical currettings from DDRC showed Decidualised endometrial polyp.  There was no evidence of cancer as per the report.  Since bleeding continued in spite of haemostatic hormone and she was having abdominal pain hysterectomy was advised for fibroid uterus which is the standard and accepted line of treatment for the diagnosed disease condition. Histopathology report of the hysterectomy specimen from the 2^nd opposite party also did not reveal anything suggestive of malignancy.  Copy of the report was given to the patient.  The patient reported with pain on left side of abdomen and dysuria about more than 7 months after hysterectomy and diagnosed to have a mass 6x6 cm with good vascularity in left iliac fossa.  Referred for Urology consultation and underwent CT and CT guided Fine Needle Aspiration Cytology.  FNAC reported no cells seen, only blood.  Possible malignancy was explained and the Urologist advised laparotomy for removal of  tumour and for histopathological confirmation.  Exploratory retroperitoneal dissection was done by the Urologist and mass removed to the maximum extent of debulking possible with help of Cardio Thoracic Surgeon since the mass extending behind the bifurcation of external iliac and internal iliac.  The biopsy of the retroperitoneal mass revealed Lipoleiomyosarcoma  and accordingly the malignancy was explained to the patient and her husband and referred to RCC for further management with all the reports, case summaries along with covering letter to enable expeditious management.  The patient and her husband were conversant with the above facts since all the details pertaining to her treatment were well explained to them.  The patient succumbed to death due to her disease condition and absolutely there was no negligence or deficiency in service on the part of the 1^st and 3^rd opposite parties.  In the light of the above mentioned facts the 1^st and 3^rd opposite parties are not liable to compensate the complainant.

          7. Opposite party No.1 and 2  would further contend that the complainant continued the treatment on the basis of the assurance given by the 3^rd opposite party is  misleading.  The biopsy reports were self explanatory and that there was no evidence of any malignancy till the biopsy  of retroperitoneal mass was obtained and there was a reasonable doubt after FNAC of mass.  There was no reasonable ground for reference to higher centre before getting biopsy report of retroperitoneal mass obtained and there was a reasonable doubt after FNAC of mass.  The patient and her husband were well aware of it and there was no reasonable ground for reference to higher centre before getting biopsy report of  retroperitoneal mass.  The allegation that 3^rd opposite party conducted exploratory laparotomy under general anaesthesia is not correct.  The allegation that there was hasty discharge on  20.12.11 after  getting biopsy report  is false and cooked up with ulterior motive.  After surgical procedure the patient was discharged when she was found  fit for discharge and she was required to come up for review for evaluation based on biopsy report.  Accordingly she came up for review on 22.12.2011 for  further evaluation and she was given reference to RCC for further management of the diagnosed malignancy.  There was no act or omission on the part of 3^rd opposite party in treating the patient and hence there was no deficiency in service at any time during the course of treatment of the wife of the complainant.  The allegation that the complainant on his  own volition took the patient to RCC is false.  The 1^st and 3^rd opposite parties are in no way liable for the findings noted in the biopsy report issued by the 2^nd opposite party.  There was no prima facie evidence of malignancy and that fact was informed to the patient and her husband in utmost good faith.  In spite of the said biopsy report the 3^rd opposite party had proceeded further with accurate clinical diagnosis and proper investigations including  CT,CT guided FNAC and referred to the Urologist for laparotomy for the diagnosed retroperitoneal pelvic mass.  The 2^nd opposite party alone is answerable for the findings contained in the biopsy report issued by them.  It is an undisputed fact that she had been suffering from cancer namely Lipoleiomyosarcoma and the same was  diagnosed by the 3^rd opposite party through the medically accepted diagnostic process and histopathology and she is not liable for the findings of the pathologist and there was no misreading or suppression of facts about the findings.  Hence the 1^st and 3^rd opposite parties are not liable or responsible for the loss and sufferings allegedly caused to the complainant and her daughter on account of the  required treatment for cancer.  As the 3^rd opposite party has properly diagnosed for the disease condition of the patient, she was able to start its specific treatment earliest at the RCC and survival for long than expected.   The complainant has no cause of action against 1^st and 3^rd opposite party.  The 3^rd opposite party is a qualified Gynaecologist having Post Graduate qualification and that she is having 27 years of un blemished professional experience as a Consultant Gynaecologist.    The compensation claimed  is excessive and has no nexus with the age, status and income of the deceased at the relevant period and has been quantified without any rationale behind it.  The opposite parties cannot be held liable for the same since there was no negligence or deficiency in service on their part.  Opposite party No.1&3 would further pray to dismiss the complaint with their costs.

          8. The 2^nd opposite party filed separate version raising the following contentions that there is no deficiency in service on its part and hence not entitled to get any relief as prayed for.  However the 2^nd opposite party would admit that it has collected a specimen for pathological examination which was examined by a Senior Pathologist Dr.Rosamma Thomas who is a retired Professor of Pathology, Medical College Hospital, Kottayam and was having more than 25 years of experience in pathological examination.  The Pathologist made a diagnosis of  Leiomyoma because the microscopic appearance was that of a leiomyoma.  Accordingly issued the report with impressions “Uterus-proliferative Endometrium, Adenomyosis, leiomyomatouse polyp”.  The 2^nd opposite party is not aware of the treatment given to the patient.  It is very difficult to differentiate “low grade leiomyosarcoma” from leiomyoma in the initial stage.  On examination of the slides, the pathologist did not find anything unusual that leads to confirmation of “leiomyosarcoma”.  The  2^nd opposite party is one of the leading laboratories in Kerala which always use high quality lab equipments and employ well experienced staff for a better result in biopsy examinations.  It is easy to confirm the disease at the final stage than in the early stage and also after confirming the disease.  Mistake in diagnosing the disease at the initial stage is not due to any inefficiency of the pathologist but due to reasons stated above.  The 2^nd opposite party issued a reply notice to the lawyer notice received on 15.07.13 stating true facts.  The 2^nd opposite party is not holding any treatment records of the patient which are available with the complainant as the details were given to the complainant as and when demanded.  The compensation claimed is highly excessive and without any basis.  There is no negligence or deficiency in service on the part of the 2^nd opposite party.  There is no cause of action for the complainant against the 2^nd opposite party.  Any mistaken diagnosis at the initial stage cannot be considered as negligence or deficiency in service on the part of the pathologist especially when the possibility of differential diagnosis is possible on the specimen analyzed by the pathologist.  The 2^nd opposite party is not liable to pay any compensation and further prays to dismiss the complaint with costs.

          9. In view of the above pleadings the points that arise for consideration are:-

1. Whether the deceased Sheela was deprived of proper treatment?
2. Whether there is any negligence on the part of the 3^rd opposite party Gynecologist in treating the deceased Sheela at the 1^st opposite party hospital?
3. Whether the findings in Ext.P1 report issued by 2^nd opposite party is incorrect?
4. Whether the 1st  opposite party hospital and 3^rd opposite party Gynecologist failed to refer the patient Smt.Sheela in appropriate time to a higher centre for better management?
5. Whether the 1^st opposite party hospital failed to furnish treatment records to the complainant within the statutory period?
6. Whether there is any deficiency in service or any unfair trade practice on the part of the opposite party No.1 to 3?
7. Whether the complainant is entitled to get compensation if so what would be the quantum of compensation to be awarded?
8. Reliefs and costs.
9. Evidence on the side of the complainant consists of the oral evidence of PW1 and 2 and Ext.P1 to P16 documents.  Evidence on the side of the opposite parties consists of the oral evidence of DW1 to 4 and Ext.D1 series case records and Ext.D2 reply notice sent by 2^nd opposite party.

Point No.1,2& 4

11.For avoiding repetition of discussion of materials these 3 points are considered together.  The following are the undisputed facts in this case.  On 17.02.11 patient by  name Sheela who is none other than the wife of the complainant came over at the 1^st opposite party hospital and consulted the 3^rd opposite party with history of  vaginal bleeding.  The 3^rd opposite party advised  USG abdomen and sonological examination and it was found that there was fibroid in the uterus and thickened   endometrium with  polyp.  Hence the 3^rd opposite party advised D&C and the same was done on 24.02.2011.  Cruting was obtained in D&C and same was sent for histopathological examination.  On 03.03.11 the patient came for review with her husband along with biopsy report and in the said report there was no evidence of malignancy.  On 08.04.11 the patient again reported with complaints of bleeding and she was advised hysterectomy which was done and specimen was sent for histopathological examination to the 2^nd opposite party laboratory, Kottayam.  On 21.04.11 the patient approached 3^rd opposite party  along with Ext.P1 histopathological report of the 2^nd opposite party laboratory.  The findings in Ext.P1 report was nil specific.  On 15.07.11 the patient again reported for review and on examination no mass/pain/abnormality detected.  However on 05.12.11 the patient again went to the 1^st opposite party hospital with the complaints of lower abdominal pain and painful urination.  Hence again USG abdomen was taken which revealed mass of about 6x6 cm of  the lower abdomen with good vascularity in left lower uriter.  The patient was referred to Urologist  and advised to take CT abdomen.  CT scan report was seen by the Urologist and suspected malignancy on the basis of  the said report.  Hence advised Fine Needle Aspiration Cytology(FNAC) to confirm malignancy.  On 14.12.2011 Retroperitoneal resection of tumor procedure was done by the Urologist in association with the vascular surgeon, Dr.Sumithran.  Specimen was collected and sent to DDRC Lab.  On 20.12.2011 the patient was discharged with advice for review based on histopathology report.  Ext.P3 report dated 20.12.2011 suggests Lipoleiomyosarcoma(Malignancy).

12.The specific case of the complainant against 1^st and 3^rd opposite parties is that inspite of continuous treatment of the 3^rd opposite party given at the 1^st opposite party hospital the physical condition of  Smt.Sheela worsened day by day.  Even then she continued the treatment at the 1^st opposite party hospital on the basis of the assurance given by the 3^rd opposite party Gynecologist.  The treatment given to Smt.Sheela was not that she required.  Had there been a correct diagnosis of the illness at the initial stage there would have been a better result in the outcome of the treatment.  Smt.Sheela undergone treatment in the RCC for a considerable long period of time from January 2012 till her death 1^st April 2013.  The learned counsel for the complainant would argue that the 3^rd opposite party was negligent because she decided the treatment and continued the same on the basis of the hystopathological report dated 19.04.11 which was erroneous.  It is further argued that the 3^rd opposite party who treated the patient has missed diagnoses or there is absence of proper diagnosis.  The 1^st and 3^rd opposite party totally denied the above allegations and would contend that there is no lapse or latches in the course of treatment given to the patient Sheela Soman, that 3^rd opposite party  had treated the patient with reasonable skill care and expertise and according to the standard and accepted medical protocol and that there was no negligence, carelessness or deficiency in service on the part of her past at any point of time in the treatment of the patient.  In order to establish that there is negligence and deficiency in service on the part of 1^st and 3^rd opposite party the complainant would mainly rely on the oral evidence of PW1&2 and DW1&4 and Ext.P1,P4&P5 documents.  The oral evidence of PW1 would show that the result shown in Ext.P1 is erroneous and hence the illness could not be treated properly, that  if the illness was detected at the earliest, patient Sheela would not have been died and that he obtained the above information from 3^rd opposite party and other doctors working at RCC.   It is true that PW1 is not a medical expert but he is the husband of the patient who died subsequently.  The above oral  evidence of PW1 stands corroborated with oral the evidence of PW2 and DW1.The oral evidence of PW2 would go to show that even after exploratory laparotomy done by the 3^rd opposite party during the month of December 2011 gross disease was left behind which is evident from Ext.P5 document. According to PW2 in case of a patient having retroperitoneal mass which pauses reasonable doubt of malignancy after FNAC of mass,  the course of action opened to the treating doctor is to confirm malignancy ascertain the stage of disease and if it is operable operation should be conducted.  To a specific question put to PW2 by the learned counsel for the complainant that if the patient is his relative what will be his advise.  PW2 has answered that he would advise the patient to go to RCC  and conduct surgery and get treatment. 

13. In the light of the above evidence of PW2 it is clear that it is not proper on the part of the 3^rd opposite party to continue the treatment of the patient at the 1^st opposite party hospital where there was no Oncology Department at all and that treatment of cancer requires the service of specialist in Oncology.  PW2 is a retired  Professor, Surgical Oncology RCC, Thiruvananthapuram.  He is having 30 years experience in the field that he joined RCC in Oncology Department in the year 1986.  In the circumstance it is clear that the above evidence of PW2  is reliable as he is an expert in the field. 

14. It is further to be pointed out that DW1 would agree that there is a wrong diagnosis on the basis of an incorrect HPR  which caused to render wrong treatment to the patient.  According to the learned counsel for the complainant the oral evidence of DW1 Dr.Sathyamayi itself would indicate that on 06.12.11 after seeing the CT scan she doubted that the patient was having cancer.  In paragraph 8 of the version also it is stated that the patient reported to the Urology  OP on 06.12.11 and seen the Urologist Dr.Ajith Bharathan.  CT scan was also done on the same day and Urologist explained the patient and her husband about the CT finding specifically stating that it was cancer and hence FNAC was advised. 

15.The learned counsel for the complainant has pointed out that the exploratory laparotomy wasconducted in the 1^st opposite party hospital in a inefficient manner and the sameis evident from the oral evidence of PW2 and DW1 and 2.According to PW2 exploratory laparotomy was attempted by somebody by openingthe abdomen.But after laparotomy grossdisease was left behind.PW2 would further admit that in ext.P5 document the details of size of mass nature of operation parts removed, parts retained etc.are stated.According to PW2 tumor deposit noted in omendum is shown in P5 document and that he has correctly noted the details of operation findings in Ext.P5 document.According to PW2 he has noted 2 more deposit in omendumparaortic left common ailiac left internal ailiac and left obturetouretc.But according to DW1 shehasnot noticed more deposits in small bowels and bladder wall, and theOmendum left common ailiac over on the left obtuetour.The above evidence of PW2 would clearly indicate that exploratory laparotomy conducted by the 3^rd opposite party in the 1^st opposite party hospital was in a negligent manner.It is brought out in evidence that the retoperitorial surgery conducted by the 3^rd opposite party is palliative surgery.But the oral evidence of DW4 Rosamma Thomas would indicate that a palliative surgery has to be conducted by an oncologist only and therefore it is to be held that the palliative surgery done by the 3^rd opposite party at the 1^st opposite party hospital without the assistance of an Oncologist is not according to the standard and accepted medical protocol.

16. The main argument advanced by the learned counsel for 1^st and 3^rd opposite party  is that no medical evidence is available on record to prove that Smt.Sheela died due to cancer.  Even after treatment at the RCC hospital the complainant has only produced P6 death certificate issued by  Kollam Corporation wherein the cause of death is not mentioned and no medical certificate or record stating the cause of death issued by the last treating hospital is produced in this case.  As per Ext.P5 discharge summary  issued by RCC Thiruvananthapuram the patient was finally discharged on 21.04.12 and the death took place on 01.04.2013.  There is nothing on record to show the subsequent treatment.  In the absence of any proper documentary evidence the Commission cannot infer that the patient died on cancer itself and nothing else.  In this connection it is to be pointed out that towards the end of paragraph 11 of the joint version filed for 1^st and 3^rd opposite party it is stated that “the patient succumbed to death due to her disease(malignancy) condition and absolutely there was no negligence or deficiency in service on the part of the 1^st and 3^rd opposite parties.  In view of the above written contention in the version it is clear that opposite party 1&3 would admit that the cause of death is cancer and nothing else.  In the light of the above admission of opposite party No.1&2 there is no need to adduce more evidence regarding the cause of death of the patient.  It is further to be pointed out that the complainant has filed the case not on account on the death of the patient alone but alleging negligence  and inadequacy of treatment of  his wife while the deceased Sheela was under treatment of the 3^rd opposite party at the 1^st opposite party hospital and also for not furnishing treatment records to the complainant within the statutory period.  In the circumstances we find no force in the above contention of the 1^st and 3^rd opposite party. 

17. The learned counsel for the 1^st and 3^rd opposite partyhas further argued that there is no delay in commencing the treatment for cancer on the part of the 1^st and 3^rd opposite party.The learned counsel would rely on the oral evidence of PW2 doctor who deposed that any doctor can commence the treatment of cancer only after confirming malignancy.But in this case malignancy condition ofthe patient was confirmed only after P3 report of DDRC dated 20.12.11 on the specimen taken from the exploratory laparotomy done on 14.12.11.According to the learned counsel for the 1^st and 3^rd opposite party the patient was seen with the report in the review on 22.12.11 and on the same day the patient was referred to RCC and hence there is no delay in referring the patient to higher centre.According to the learned counsel for opposite party No.1&3 the 3^rd opposite party has shown earnest attempt on her part for confirmation of diagnosis and early commencement of treatment. It is to be pointed out that in paragraph 8 of the joint version filed by 1^st and 3^rd opposite parties they would admit that cancer was confirmed on 06.12.2011.Result ofscan itself suggest the possibilities of cancer. It is also brought out in evidencethroughDW1thattreatment ofcancer requires the service of specialist Oncologist and that 1^st opposite party hospital is not having an oncology department.In the circumstances the opposite parties 1 and 3 ought to have referred the patient to a higher centre were Oncology Department is available.But the 1^st and 3^rd opposite party has not seen referred the patient to RCC and the sameitself would indicate that there is gross negligenceand deficiency in service on the part of the 1^st and 3^rd opposite parties.

18.  Yet another contention of  the learned counsel for opposite party No.1&3 is that there is no negligence on the part of the treating gynecologist.  It is also argued that the death of the patient never took place during or immediately after any surgery or procedure done at the 1^st opposite party hospital.  Though the patient had received expert treatment from a major referral hospital for treating malignancy she died subsequently one year after discharging from RCC, Thiruvananthapuram.  It is also argued that negligence alleged against treating doctor is that missed diagnosis or absence of diagnosis.  But according to the learned counsel for the complainant there is no such  missed diagnosis or absence of diagnosis on the part of the treating Gynecologist.      However it is brought out in evidence that an exploratory laparotomy was attempted in 15.12.11 leaving behind gross decease at the 1^st opposite party hospital by the 3^rd opposite party .  It is also clear from paragraph 8 of the joint version that the 3^rd opposite party specifically admitted that on 06.12.11 she was aware of the fact that the patient was having cancer.  But she would state that she was not convinced of  cancer on that day but she doubted only.  In such circumstances she ought to have referred the patient to the higher center for better management.  Admittedly RCC is a premier institution for treatment of cancer.  In the circumstances it is crystal clear that Smt.Sheela Soman ought to have undergone treatment under Oncologist at an institution like RCC.  But it is clear from the available materials that 3^rd opposite party opted to continue treatment at the 1^st opposite party hospital were no oncology department,  instead of referring patient to higher centre having Oncology Department at the earliest.  Hence there is gross negligence and deficiency in service on the part of 1^st and 3^rd opposite parties.

19. The learned counsel for the opposite party No.1&3 has further argued that Ext.P1 report of  2^nd opposite party lab would show nil specific which means no malignancy.  On the basis of such report the treating Gynecologist cannot infer or suspect malignancy in that patient and without conferring the malignancy no doctor can or supposed to treat the patient for the same.  According to the learned counsel for the complainant the finding in Ext.P1 given by the 2^nd opposite party is incorrect which is evident from the oral evidence of PW2  Dr.Iqbal Ahammed.  It is brought out in evidence that the complainant has collected slides and blocks of the patient from the 1^st opposite party hospital and gave to M/s RCC for Pathology investigation.  The specimen taken by the 1^st opposite party and labeled as B 1416/2011 was reviewed by RCC and diagnosed the illness as Leyomayosarcoma which means cancer.  Hence it is clear that histopathology report dated 19.04.11 on the basis of which 3^rd opposite party decided treatment and continued the same until December 2011 was erroneous.  The patient was deprived of proper medical treatment and care at the 1^st opposite party hospital at the appropriate time.  The treatment given to Sheela was not she required and had there been a correct diagnosis of the illness at the initial stage there would have been better results in the outcome of the treatment.  It is pertinent to pint out the specific question put to DW1 that if findings in Ext.P1 been different,  the course of treatment that adopted would have been different?   The answer is I would have referred the patient  to RCC. It is brought out in evidence that the nature of specimen stated in Ext.P1 is irregularly cut open uterus.  PW2   Dr. Iqbal Ahammed has deposed that if there is malignancy in uterus and uterus is removed peace meal it could result in spillage of tumor cell and it would also result in recurrence.  According to PW1 it is due to the incorrect result stated in P1 report the illness of the patient Sheela could not be treated properly and that fact was told to him by 3^rd opposite party.  If the illness was found out at the earliest his wife Sheela could not have died according to PW2 Oncologist.  In view of the materials discussed above it is clear that there is wrong diagnosis on the basis of an incorrect histopathology report and the same has caused to render wrong treatment to the patient.  It is also brought out in evidence through PW1 that the 3^rd opposite party has not referred the patient to better management to RCC, Thiruvananthapuram but when the condition has become worsened she told that  C\n R§Äs¡m¶pw sN¿m\nà \n§Ä CjvSw t]mse sNbvtXm F¶p ]d-ªp. The above evidence of PW1 would probabilise the case of the complainant that opposite party No.1&3 failed to refer the patient to a higher institution for better management.

20.  According to the learned counsel for the 1^st and 3^rd opposite parties the patient was referred immediately after detecting malignancy and there is no delay or lapse of their part.  During evidence stage DW1 has sworn in paragraph 9 of the proof affidavit that on 22.12.2011 the patient was referred to RCC with a detailed description of treatment finding along with a covering letter and detailed case summaries for further management.  But during cross examination DW1 has stated that the Urologist has referred the patient to RCC and that fact is written on 22.12.11 in page No.27 of D1 series case sheet.  But no such entry is seen either in page No.27 of Ext.D1 nor in page No.27 of Ext.P15 series copy of case sheet given to the complainant on his  written request.  Furthermore it is seen from Page No.27 of  Ext.D1 series and also from Ext.P15 series page 27 that the very same Urologist has prescribed medicine for 1 month on 22.12.11. If the patient was referred to RCC by the Urologist there was no need for prescribing drugs for 1 month by the Urologist.  In the discharge summary produced along with the case  sheet also there is  no mention that the patient was referred to a higher centre.  The copy of description of treatment or copy of covering letter etc. are also not produced and got marked in evidence.

21. In view of the materials discussed above it is clear that the 3^rd opposite party doctor decided the ailment and treatment of the patient on the basis of Ext.P1 histopathology report dated 19.04.11 and continue the same until 22.12.2011.  But P1 report was proved to be erroneous and had there been a correct diagnosis of the illness at the initial stage there would have been better results in the outcome of treatment.  In view of the reasons stated above it is cristal clear that the 3^rd  opposite party Gynecologist who  treated the deceased Sheela missed diagnosis and also there was absence of proper diagnosis.  Hence it is clear that there is gross negligence on the part of the 3^rd opposite party who treated the patient by believing incorrect and  improper P1 report.  Points answered accordingly.

Point No.3

22. According to the complainant the findings and conclusion of the 2^ndopposite party lab was wrong and the same has adversely affected the patient and course of treatment to be given to the patient.  According to the complainant negligence in conducting test and issuing wrong result caused the loss of the life of Mrs.Sheela Soman.  By alleging the above aspects the complainant has caused to issue P7 lawyer notice. It is also brought out in evidence that even though treatment was continued  the  condition of  the  patient  Sheela  worsened  day  by day.  Hence she  has  undergone  another  surgery  as  advised  by  the   3^rd   opposite   party.

Sample was taken and sent it for examination to DDRC lab and as per the report the patient was suffering from cancer.  The matter was referred for expert opinion and previous sample slide bearing No.B/1416/11 examined by the 2^nd opposite party lab at the instance of the 1^st opposite party hospital was reexamined by the RCC, Thiruvananthapuram and issued Ext.P4 report dated 04.01.2012 wherein it is stated that patient was suffering from Leiomyo sarcoma intermediate grade-uterus which means that she is a cancer patient.  The learned counsel for the complainant has vehemently argued that only because of the improper method of examination by unqualified/under qualified  person and with inferior quality of lab equipment the 2^nd opposite party could not have obtained correct result of examination which amounts to gross negligence and deficiency in service on the part of the 2^nd opposite party lab and also deficiency on the part of the 1^st opposite party hospital in forwarding the sample to the 2^nd opposite party.  It is further argued that if a little more care and skill was shown in conducting the test the result could have been different and precious life of the patient Smt.Sheela Soman could have been saved.  The learned counsel for the 2^nd opposite party has vehemently opposed the above argument and has argued that specimen was duly examined by  senior pathologist by name Dr.Rosamma Thomas (DW4)  who is the Rtd.Professor of Pathology, Medical College Hospital, Kottayam and issued Ext.P1 report.  She is having  experience of more than 25 years in pathological examination.  It is further argued that pathologist made a diagnosis of Leiomyoma because the macroscopic and microscopic appearance was that of a leiomyoma that the 3^rd opposite party has also accepted the report and she had not resorted for review of slides or for a second opinion from a different pathologist .Hence it is clear that the report was clinically correlating.  It is also argued that being a well experienced and highly qualified pathologist the alleged possibility of any mistake in diagnosis is very remote.  According to the learned counsel for the 2^nd opposite party examination of specimen at any subsequent stage after confirmation of the decease by a higher centre that too having a well-equipped modern specialist laboratory cannot be considered as inefficiency of a qualified doctor.  All the facilities available in a modern advanced centre is not available in an ordinary laboratory with normal facilities.  It is further argued that it is very difficult to differentiate low grade leiomyosarcoma from leiomyoma in the initial stage.  According to the learned counsel the 2^nd opposite party used high quality lab equipment’s and employed well experienced staff for a better result in biopsy examinations,  that it is easy to confirm the disease at the final stage that  B/1416/11 slides and blocks were reviewed by RCC only after confirming the disease.  It is finally argued that mistake in diagnosing the disease at the initial stage cannot be considered as any inefficiency of the pathologoist.  In view of the materials available on records it is crystal clear that PW1 obtained the slide forwarded along with P1 report from the 1^st opposite party hospital and rushed to RCC Thiruvananthapuram were the slide was rechecked and also conducted independent investigation and on the basis of the investigation the RCC entered into a definite finding that the patient was affected with cancer.  At the same time no symptoms of cancer was detected by the 2^nd opposite party laboratory in Ext.P1 report. 

23. It is clear from the available materials that when P1 report was received the patient was having preliminary stage of the disease.  In view of Ext.P3 report it is clear that leiomyosarcoma was diagnosed on Sheela Soman.  On analysis of the gross specimen it was revealed that she has been affected with cancer .  Ext.P4 review report of RCC would clearly indicate that biopsy was conducted and slides and blocks were reviewed and diagnosed leiomyosarcoma intermediate grade-uterus and retroveomars.  In view of   P4   report    issued    by  the RCC pathology

division it is clear that Smt.Sheela Soman was affected with cancer even at the stage of examining the sample by the 2^nd opposite party and issuing P1 report and at that time she was affected with preliminary stage of cancer and that is why it was developed into an intermediate grade at the time examination by the RCC.  In view of the materials discussed above it is crystal clear that though PW4 is an experienced pathologist she failed to arrive at a proper conclusion which is evident from the fact that the very same slide was reviewed at the RCC cancer was detected.  It is also brought out in evidence that due to the delayed diagnosis the treatment could not be successful and finally the patient died on 1^st April 2013.  According to the complainant incorrect report happened to the issued because of the improper system of examination by unqualified/under qualified personnel and with inferior quality of lab equipments.  The 2^nd opposite party failed to obtain a correct result of the examination and the same is due to the irresponsible and negligent attitude of the 2^nd opposite party laboratory authorities and also of the 1^st opposite party hospital who entrusted the work with the 2^nd opposite party.

          24. In view of the reasons discussed above it is clear that as the 2^nd opposite party laboratory failed to enter into a proper conclusion in P1 report there occurred inordinate delay in detecting the cancer and also there is inordinate delay in giving proper treatment to the patient which ultimately resulted in the loss of life of the patient.  Hence there is gross negligence and deficiency in service on the part of the 2^nd opposite party also.  The point answered accordingly.

Point No.5 

          25.There further case of the complainant is that the 1^st opposite party hospital and 2^nd opposite party laboratory has not furnished the medical records relating to the treatment of Sheela Soman inspite of request of the complainant and therefore he had caused to send  Ext.P11 series A&B notices to the 1^st and 2^nd opposite parties requesting them to furnish the following documents.  Copy of notice dated 28.08.13 sent to 1^st opposite party through Advocate of the complainant is Ext.P11 series(A) in which the request is to issue the following 3 documents.

1. Copy of entire medical records of the treatment from 17.02.2011 till December 2012.
2. Copies of operation notes of the patient.
3. Copy of the histopathology request submitted to Dianova Diagnostics Pvt.Ltd.  Kottayam for the operative specimens dated 15.04.2011 and 15.12.2012.

In Ext.P11 series(B) request the complainant’s Advocate has requested the 2^nd opposite party Dianova Diagnostics Pvt.Ltd. to furnish in the following document.  A copy of the histopathology request received from M/s.Padmavathy Medical Foundation, Sasthamcotta.   Even the 1^st opposite party has no case that those documents or copy of the same were given to the complainant within 72 hours and there by complied with the spirit of statutory provisions in this regard.  According to 1^st opposite party hospital they have issued Ext.P2 case summary which is not a document maintained at the hospital.  Even according to the 1^st and 3^rd opposite party Ext.D1 series case sheet has been produced before the Commission only at a belated stage on 08.05.2019  just before examining DW1.  Hence the same will not satisfy the mandate of the Medical Counsel Regulation.

26. It is an undisputed fact that Indian Medical Council Regulations imposes a statutory obligation upon every doctor/hospital to provide medical records within 72 hrs. of the request made by the patient or on behalf of the patient.The 2^nd opposite party also would admit that it has not issued any medical records sought for under Ext.P11 series (B) notice.The explanation offered by the 2^nd opposite party for not furnishing medical records in the argument note filed by the Advocate for the 2^nd opposite party is that 2^nd Op is not holding any treatment records of the patient andall documents available with this opposite party were available with the complainant and the detailswere given to them as and when demanded by them.But there is absolutely no evidence to prove that the records sought for has already been furnished to complainant. The dictum laid on by the Hon’ble Supreme Court in Maharaja Aggresen Hospital V/s Master Rishabha Sharma(Civil Appeal No.666/19) would make it clear that withholding of medical records of the patient for a reasonable period would constitute grave professional misconduct under regulation 7 apart from being a gross deficiency in service on the part of the hospital and its management.In view of the reasons discussed above it is crystal clear that there is deficiency in service on the part of the 1^st and 2^nd opposite party for not providing treatment records sought for in P11 series (A)&(B) advocate notice within the prescribed time.The point answered accordingly.

Point No.6

          27. It is also clear from the available materials that the 3^rd opposite party is an employee of the 1^st opposite party hospital.  Though the complainant would allege that the 2^nd opposite party laboratory is an agent of the 1^st opposite party hospital there is absolutely no evidence to prove the same.  Hence the 2^nd opposite party laboratory itself is liable for the wrong or improper report issued.   It is clear that 1^st opposite party  hospital being the employer of 3^rd Op is vicariously liable for the acts of negligence and dereliction of duty and deficiency in service committed by the 3^rd opposite party doctor. In view of the reasons stated above and also in view of the findings under point No. 1 to 5 it is crystal clear that there is gross negligence and deficiency in service on the part of opposite party No.1 to 3 regarding the treatment of  Smt.Sheela Soman the wife of the complainant and also for non issuing treatment records as provide under regulation NO.7 of Medical Council Regulations. The point answered accordingly.

Point No.7

          28. The learned counsel for the 1^st and 3^rd opposite parties has argued that there is no direct nexuses between the death of the complainant and the treatment at the 1^st opposite party hospital by the 3^rd opposite party and hence the claim of compensation for the death of Sheela Soman is not maintainable.  It is clear that the complainant was not under the treatment of the 3^rd opposite party as on the date of death. The postmortem certificate of  deceased Sheela is also not made available.  However as we have pointed out above the 3^rd opposite party would admit in the written version that the deceased died due to cancer for which she sought for treatment at the 1^st opposite party hospital and after confirming the disease at the 1^st opposite party hospital the deceased was taken to RCC, Thiruvananthapuram. 

29.  It is further to be pointed out that compensation to the tune of Rs.20,00,000/- was sought for not for the death of the complainant alone.  In para 15 of the complaint it is stated that if the opposite parties were not negligent in treating the Smt.Sheela Soman she would have been able to lead an effective life for much longer period and thereby the complainant and his family would have been enjoyed her care companionship etc,  that due to the death of Smt.Sheela Soman complainant and his family has been deprived of the care comforts and companionship of a person they loved so much.  The above pleadings would indicate that complainant has sought for compensation not only  on the death of Smt.Sheela Soman but for  the negligence and deficiency in service on the part of the opposite parties in treating her at the 1^st opposite party hospital.  It is  brought out in evidence that 3^rd opposite party erred in deciding the treatment given to Smt.Sheela Soman and also failed to take care of the patient properly which resulted in aggravating the disease and she had undergone treatment in RCC for a long period.  It is also brought out in evidence during the above period Smt.Sheela Soman had to undergo many cycles of chemotherapy and exploratory laparotomy.  Ext.P14 series medical bills would indicate that a very heavy amount has been spent by the complainant for the treatment of the deceased Sheela Soman.  It is also brought out in evidence that in view of the continuation of the treatment of his wife Sheela Soman the complainant had to discontinue his business that his  daughter Devi Sundar resigned her job as placement office in Man Baselio Engineering College, Peerumedu to look after her mother.  The entire family had to suffer much mental agony, severe loss and irreparable damages.  Furthermore the opposite parties No.1 and 2 ignored the request of the complainant regarding the medical records and thereby violated the provisions of the Indian Medical Council Regulations.  In the circumstances we are of the view that the legal heirs of the deceased Sheela Soman including the complainant are entitled to get compensation.  In view of the facts and circumstances the case age of the deceased, amount spent for treatment for 2 and odd years mental agony of the complainant and other family members and also for the loss of love and affection we are of the view that the compensation to the tune of Rs.10,00,000/-  (Ten lakhs) only is reasonable and sufficient.   In the circumstances of the case we hold that 50 % of the compensation shall be paid by the 2^nd opposite party laboratory and the remaining 50% shall be paid by the opposite party 1 and 3 jointly and severally. The opposite parties No.1 to 3 are also liable to pay Rs.10,000/-as costs of the litigation.  The point answered accordingly.

Point No.8

          30. In the result complaint stands allowed in the following terms.

Opposite party No.1 to 3 are directed to pay Rs.10,00,000/- (Ten Lakhs)  as compensation to the complainant (for himself and on behalf of other legal heirs of the deceased Sheela)  along with interest @ 6% p.a from the date of complaint till realization.  Opposite parties No.1 to 3 are directed to pay costs Rs.10,000/- to the complainant.

          Opposite party No.2 shall pay 50% of  compensation and costs and interest awarded.  The remaining 50% shall be paid by opposite party No.1&2 jointly and severally. 

Opposite party no.1 to 3 are directed to comply with the directions within 45 days from the date of receipt of a copy of this order failing which the complainant is entitled to recover compensation with interest @ 9% p.a from the date of complaint till realization along with costs from  opposite party No.1 to 3 and from their assets in the ratio stipulated above.

Dictated to the Confidential Assistant  Smt. Deepa.S transcribed and typed by her corrected by me and pronounced in the  Open Commission on this the  17^th  day of  December   2020.

E.M.Muhammed Ibrahim:Sd/-

S.Sandhya   Rani: Sd/-

           Stanly Harold:Sd/-

           Forwarded/by Order

                                                                                   Senior Superintendent

INDEX

Witnesses Examined for the Complainant:-

PW1                :           M.Somasundaran Nair

PW2                :           Dr.Iqbal Ahammed(Professor, Surgical Oncology,RCC)

Documents marked for the  complainant

Ext.P1            :           Histopathology report dated 19.04.11

Ext.P2             :           Case summary of Sheela Soman issued by the Consultant

             Gynecologist, Pathmavathi Medical Foundation.

Ext.P3             :           Biopsy/Cytology report dated 20.12.2011

Ext.P4            :           Surgical path (Review report dated 04.01.2012 of the RCC,

         Tvm.)

Ext.P5           :           Discharge certificate of RCC dated 21.04.12

Ext.P6           :           Death certificate of Smt.Sheela Soman.

Ext.P7           :           Advocate notice dated 28.06.13

Ext.P8 series:  Postal receipt(2 Nos)

Ext.P9           :           Returned lawyer notice with Post cover addressed to MD,

Pathmavathi Medical Foundation,Sasthamcotta)

Ext.P10 series  :            Postal acknowledgment card(2 Nos)

Ext.P11 series   :            Copy of the letter addressed to Pathmavathi Medical

            Foundation and also M/s Denova Diagnostic Pvt.Ltd. dated

            28.08.13.

ExtP12 series:             Postal receipts(2 Nos)

Ext.P13 series:            Postal acknowledgement card(2 Nos)

Ext.P14           :           Medical Bills

Ext.P15           :           Copy of the case sheet of Smt.Sheela Soman.

Ext.P16           :           Malayala Manorama Daily dated 03.06.19.   

Witnesses Examined for the opposite party:-

DW1               :           Dr.K.B.Seethamayi amma(Gynecologist, Pathmavathi Medical

             Foundation) (Op3)

DW2               :           Ajith Bharathan(Consultant Urologist, N.S.Hospital, Kollam)

DW3               :           Manu.S(Director,Denova Diagnostics Pvt.Ltd. Kottayam) Op2

DW4               :           Rosamma Thomas(Consultant Pathologist in Op2 Laboratory)

Documents marked for opposite party:-

Ext.D1               :           Case sheet relating to Sheela Soman of Pathmavathi

               Medical foundation,Sasthamcottah)

Ext.D2            :           Copy of Advocate notice dated 15.07.13.

E.M.Muhammed Ibrahim:Sd/-

S.Sandhya   Rani: Sd/-

           Stanly Harold:Sd/-

           Forwarded/by Order

           Senior Superintendent