Chandigarh

DF-I

CC/535/2017

Smt. Darshani Devi alias Darshani Sharma - Complainant(s)

Versus

Post Graduate Institute of Medical Education & Research - Opp.Party(s)

Pulkit Dagar

20 May 2019

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I,

U.T. CHANDIGARH

 

                               

Consumer Complaint No.	:	CC/535/2017
Date of Institution	:	21/07/2017
Date of Decision	:	20/05/2019

 

 

Smt. Darshani Devi alias Darshani Sharma w/o Sh. Brij Bhushan Sharma r/o H.No.191, Ashoka Nursery, Karnal (Haryana).

… Complainant

V E R S U S

1.     Post Graduate Institute of Medical Education & Research, Chandigarh through concerned Head of Departments, Department of Cytology and Gynaecologic Pathology as well as Deptt. of Otolarvngology Head & Neck Surgery (En).

2.     Delhi E.N.T. Hospital, FC-33, Plot No.13, Jasola Institutional Area, New Delhi 110025 through Dr. Geeta Kathuria.

3.     Sun Diagnostic Clinic, Exclusive Pathology Service, H-block, 41/S, Saket, New Delhi-110017.

        Second Address : Delhi E.N.T. Hospital, FC-33, Plot No.13, Jasola Institutional Area, New Delhi-110025 through Dr. Sunil Dargar, Consultant Pathology.

… Opposite Parties

4.     Max Health Care Super Speciality Hospital, Mohali through concerned Doctor.

… Proforma Opposite Party

CORAM :	SHRI RATTAN SINGH THAKUR	PRESIDENT
	SHRI SURESH KUMAR SARDANA	MEMBER

                                                                    

ARGUED BY	:	Sh. Pulkit Dagar, Counsel for complainant
	:	Sh. Gaurav Bhardwaj, Counsel for OP-1
	:	OP-2 ex-parte
	:	Sh. Deepak Verma, Counsel for OP-3
	:	Sh. Anshuman Mandhar, Authorised representative of OP-4.

 

Per Rattan Singh Thakur, President

1.         Allegations as set out in the consumer complaint are, in the month of March 2016, complainant developed sore throat with pain and difficulty in swallowing food.  Initially, treatment was taken at Karnal but with no effect.  On being advised, complainant got herself checked on 21.3.2016 with the doctors of OP-1. The treatment continued for a month as outpatient without much relief. She was advised FNAC test which was got conducted and report dated 23.4.2016 was given with diagnosis of “Thyroid Gland (Left Lobe) : Benign Aspirate”.  Follow up medicines were administered but there was no improvement.  On 14.7.2016, again FNAC test was conducted by OP-1 and report was “follicular lesion in left lobe”. In ordinary language, doctors of OP-1 had told the complainant there was growth on the left side of the throat which may be cancerous as per report of Dr. Rashi Garg and she was to be operated upon.  However, long date i.e. 12.12.2016 was given and since there was fear of cancer, complainant got herself checked and hospitalized with OP-2 at Delhi.  She was operated upon on 2.8.2016 and discharged on 4.8.2016.  On being recommended the test was again conducted by OP-3 and report dated 8.8.2016 was suggestive of cancerous throat.  Again OP-2 was visited and they had advised her for second operation of throat to complete it.  The complainant had lost faith in OP-2 and thereafter was hospitalized with proforma OP-4 and was operated on 12.8.2016 and discharged on 14.8.2016.  A lot of money i.e. Rs.2.00 lakhs was spent on treatment with OP-4 and transportation. Again on being advised, FNAC test was got done from OP-1 and previous reports were also shown and the report dated 7.10.2016 showed it was simply a case of ‘follicular adenoma’ and there was no cancer at all.  Alleged, part of cause of action had arisen at Chandigarh and the complainant is still suffering pain. Hence, the present consumer complaint for directing OPs 1 to 3 to pay Rs.3,50,000/- on account of expenses incurred by the complainant due to their deficiency in service; Rs.1,50,000/- on account of mental agony, mental torture, harassment etc. and Rs.21,000/- as litigation expenses.
2.         OP-2 did not appear despite due service, therefore, vide order dated 14.9.2017, it was proceeded against ex-parte.
3.         OP-1 contested the consumer complaint, filed its written reply and raised preliminary objections complaint not maintainable against it.  And the diagnosis of malignant growth was never confirmed by OP-1 and even in 4^th FNAC, doctors of OP-1 had submitted the report of case of ‘follicular adenoma’ and no cancer at all. As such, there is neither any medical negligence nor any deficiency in service or unfair trade practice on its part.  On these lines, the cause is sought to be defended.
4.         OP-3 i.e. the diagnostic centre had submitted its separate reply and claimed it had limited role in the entire investigation and treatment of complainant’s case.  On being asked to investigate the possibility of thyroid follicular malignancy (follicular carcinoma) opinion was required to be given and the histology was suggestive of thyroid follicular malignancy (follicular carcinoma).  However, the decision to operate thereafter was taken by OP-2 and OP-4 and OP-3 had no role to play.  Symptoms were like this and histologically Thyroid Follicular Adenoma and Thyroid Follicular Carcinoma look alike and cannot be differentiated by looks alone.  As such, there was no deficiency in service or negligence on the part of OP-3. On these lines, the cause is sought to be defended.
5.         OP-4 also filed separate written reply and pleaded no relief was claimed against it.  Rather it performed the second successful surgery and on being advised to get another test of FNAC done from the PGI, it suggested that it was a benign growth and not a malignant one and there was no medical negligence on their part.  On these lines, the cause is sought to be defended.
6.         Rejoinder was filed and averments made in the consumer complaint were reiterated.
7.         Parties led evidence by way of affidavits and documents.
8.         We have heard the learned counsel for the parties, authorised representative of OP-4 and gone through the record of the case. After scanning of record, our findings are as under:-
9.         At the outset, the argument of the OPs that this Forum does not have territorial jurisdiction to entertain and decide the present consumer complaint does not cut ice as firstly the complainant has remained as outdoor patient at Chandigarh and the first and second FNAC test was also done at Chandigarh. Even the third test was also done at Chandigarh which showed that there was no cancerous growth.  As such, a part of cause of action has arisen within the territorial jurisdiction of this Forum.  Accordingly, this Forum is fully competent to entertain and decide the instant consumer complaint.
10.         Per pleadings of the parties, the facts with regard to the complainant being treated as outdoor patient by OP-1 and as indoor patient by OPs 2 & 4 are not in dispute before us at all.  It is also the admitted case, in the first FNAC test report dated 23.4.2016, lab of OP-1 had diagnosed it as “Thyroid Gland (Left Lobe) : Benign Aspirate”. However, the treatment on this did not respond and on 14.7.2016 another FNAC was got conducted by OP-1 with the report of follicular lesion in left lobe. It was nowhere opined that it could be cancerous.  Report shows lesion i.e. area of abnormal tissue change.  However, there are no confirmed reports vide which Dr. Rashi Garg had authenticated the said growth being malignant. It was kept could be benign or malignant. Long date of 12.12.2016 was given for operation.  OP-1 is a busy institution and as per reply furnished, covers 3-4 States and keeping in view the priorities and the seriousness of the ailment, they fixed the date for surgery. Even in case of proposed surgery of complainant, it was merely an area of abnormal tissue change expressed of the growth it was nowhere authenticated of being cancerous at all. 
11.         Not only this, even in the fourth FNAC which was also done by OP-1 after the second surgery by OP-4 in August 2016 their own pathologist had opined the growth simply a case of ‘follicular adenoma’ and there was no cancer at all. It speaks of the bonafides on the part of the lab of OP-1 as at the first instance “benign aspirate” was detected and then ‘follicular lesion in left lobe’ and lastly opined ‘follicular adenoma’ i.e. a tumour which was benign one.
12.         Hence, OP-1 had nowhere put the complainant on a hanging death sentence i.e. the fear of cancerous growth and every day the patient has to remember and expect his death from such a fatal disease.  We have already reproduced and referred reports of the complainant and the complainant was also being given a clean chit of a benign growth which was operated upon by OP-4 and even the expression oral opinion raising suspicion of cancer or benign does not mean that they had in any way certified it to be a case of confirmed malignant growth. Any tumour can develop in the body, may be a benign or cancerous one.  In view of above, case of deficiency in service or say medical negligence is not made out against OP-1 and OP-4 which was made a proforma OP who had conducted the second surgery which was successful and for the purpose of convenience of the consumer complaint was arrayed as OP-4.  Hence, we hold that there was no negligence or deficiency in service on the part of OPs 1 & 4.
13.         Now we switch over to the negligence or say deficiency in service or unfair trade practice on the part of OP-2.  It was the case of the complainant, she was admitted with OP-2 at Delhi on 2.8.2016 and was operated on the same day and was discharged on 4.8.2016.  Per record, as well as the allegations made in the consumer complaint, supported by way of affidavit, these facts are not in dispute particularly when OP-2 did not opt to contest the consumer complaint and despite of declared service by way of registered post, allowed itself to be proceeded against ex-parte vide order dated 14.9.2017 which means OP-2 had nothing to say qua the allegations of unfair trade practice or deficiency in service levelled against it.
14.         Per pleadings of the parties and the record produced, it is also the case of OP-3 that on recommendation of OP-2, FNAC test was done which had confirmed by way of report of growth being malignant. However, earlier to it, OP-2 as per record  i.e. Annexure A-11 conducted the surgery and the summary is reproduced below :-

                “Parts cleaned and draped. Lower crease incision given horizontal. Superior & inferior skin flaps raised in subplastysmal plain. Fascia incised in midline strap muscles retracted. Left sternohyoid and sternothyroid incised superiorly. Left lobe of thyroid identified.  Middle superior and inferior pedicles ligated preserving left recurrent laryngeal nerve. Left thyroid lobe with nodule and isthmus removed. Haemostasis ensured wound stitched in 3 layers.  Patient stood the surgery well and shifted to room under stable condition."

 

15.         OP-2 had handsomely charged the amount of around Rs.70,000/- for such surgical procedure.  From the contents referred by us hereinbefore of Annexure A-11 shows, it was a complete surgery and it was nowhere opined or stated that the second surgery was to be done after the receipt of report from OP-3. Thus, in all respects, complete surgery was done. 
16.         Now the case of the complainant is, when the report of OP-3 was received, suggesting it to be a cancerous growth then she revisited OP-2 and OP-2 had advised the second surgery. Now it is not understood why the first time surgery was done 3-4 days before which was useless one. Not only this, even in the first surgery, it was not scribed there was any need of second surgery and again after 4-5 days, second surgery was recommended. This itself shows, first surgery for which thousands of rupees were charged was not done with a view to cure the problem.  Now-a-days, per law when medical services are commercialized, rule of ordinary skill of professional standard of care need not be strictly followed and the inclination towards injured patient ensuring that high medical skill at the hands of doctors is expected rather than applying ordinary skill. There was history of two FNAC tests in PGI Chandigarh before OP-2 had firstly operated the complainant woman, a senior citizen aged 60 years, and then at once the first surgery was done which did not serve the purpose and again when the report of OP-3 was shown, second surgery was advised.
17.         It is also the pleading as well as documents and evidence in the form of affidavits that the complainant lost trust in OP-2 and then took shelter of OP-4 and got the second successful surgery done and even on its advice, fourth FNAC test was got done from OP-1 which had opined to be a ‘follicular adenoma’ and not a cancerous growth at all.  Hence, in these circumstances, as per record it is cogently proved that at least OP-2 did not perform its duty carefully and had conducted first incomplete surgery on handsome consideration amount without bothering that the complainant was treated or not and then after 4-5 days the second surgery was suggested as if an old women, a senior citizen aged 60 years, was treated in an animal like manner as if surgery gives no pain at all. Hence, there has been breach of duty on the part of OP-2.  Also, OP-2 opted not to contest the consumer complaint and rebut the allegations of the complainant. A duty was so warranted in view of the commercialization of the medical profession and such breach of duty is to be construed as unfair trade practice and deficiency in service or say some sort of negligence on the part of OP-2 and it was completely a paid service.
18.         Now we shall take up the case of OP-3 diagnostic clinic. It is the admitted case of complainant as well as OP-3 in the reply that it had confirmed by way of lab test to be a case suggestive of cancerous growth.  It was so confirmed in the lab report and it is not merely a suspicion expressed and on the basis of that the second surgery was got done with OP-4.  Per own record of the hospital, even of OP-1 who had at first instance opined in FNCA test as ‘benign aspirate’ and then suspected case, may or may not be malignant, and in the third test had confirmed diagnosis of ‘follicular adenoma’ which did not have the cancerous growth at all.
19.         It is OP-3 who in its test report confirmed it to be a malignant growth and put the complainant under ‘hanging death sentence’ i.e. every moment fear of death revolves round the clock in the mind.  Before giving such an authentic report of a cancerous growth, there ought to have been checking and cross checking.  Now this aid could not be taken that it is difficult in such a presentation to opine it to be a benign or malignant growth. This itself shows, there were no cross checks or say authentic confirmation of the same being malignant growth.  Hence, OP-3 was also lacking in duty and there was deficiency in paid service or say negligence can be seen writ large on its face.  Therefore, to our mind, liability for unfair trade practice and deficiency in service or say negligence to be fastened upon OPs 2 & 3 only.  We have taken into account principle of negligence as laid down by Hon’ble Apex Court in case titled as Laxman Balkrishna Joshi Vs. Trimbak Bapu Godbole & Anr. AIR 1969 SC 128 that a breach of duty is negligence.
20.         Though on quantum of compensation, no authentic or complete record has been produced, there is reference that Rs.1,00,000/- was spent by the complainant at OP-4 hospital and Rs.1,00,000/- was spent on transportation also.  The growth may be benign or cancerous in the situation it needed a surgery, but, not twice.  As such, it is difficult to ascertain the actual damage caused to the complainant and it has to be fixed globally. 
21.         In view of the above discussion, the present consumer complaint succeeds and the same is accordingly partly allowed qua OPs 2 & 3.  OPs 2 & 3 are directed as under :-

1. OP-2 shall pay a sum of Rs.2,50,000/- to the complainant as compensation for deficiency in service and negligence on its part inclusive of pain, suffering and mental agony suffered by her.
2. OP-3 shall pay a sum of Rs.1,50,000/- to the complainant as compensation for deficiency in service and negligence on its part inclusive of pain, suffering and mental agony suffered by her.
3. OPs 2 & 3 shall pay a sum of Rs.10,000/- each as costs of litigation to the complainant.

22.         This order be complied with by OPs 2 & 3, as referred above, within thirty days from the date of receipt of its certified copy, failing which, they shall make the payment of the respective amounts mentioned at Sr.No.(i) & (ii) above, with interest @ 9% per annum from the date of this order, till realization, apart from compliance of direction at Sr.No.(iii) above.
23.         The consumer complaint qua OPs 1 & 4 has been dismissed leaving the parties to bear their own costs. 
24.         The certified copies of this order be sent to the parties free of charge. The file be consigned.

	Sd/-	Sd/-
20/05/2019	[Suresh Kumar Sardana]	[Rattan Singh Thakur]
hg	Member	President