This appeal is directed against the final order delivered by Ld. D.C.D.R.F, Cooch Behar dated 05/12/2017 in reference to CC/99/2016. The crux of the appeal in nutshell is that one Seema Debnath who happens to be the consumer complainant of the above case feeling severe pain in her right breast, approached to the chamber of Dr. Nikhilendu Mahapatra who is the specialized of gynecology having post-graduate degree in that field. After examination of the patient he found that the patient was suffering from fibro adenosis in the right breast and suggested for operation of excision of mass immediately and the total expenses for such surgery was estimated to Rs. 20,000/-. Accordingly, the complainant/patient deposited the said amount of Rs. 20,000/- and surgery was held by Dr. Mahapatra at his chamber on 20/03/2016. And the extracted mass was immediately sent for histopathological examination test. And on the same day the patient was discharged. Thereafter, the test report detected carcinoma and found that the patient was suffering cancer in her right breast. The histopathological test report could be obtained on 06/04/2016 and the patient was continued the treatment under the said doctor in consecutive dates at the chamber of Dr. Mahapatra who had prescribed the medicines for healing the cancer problem of the patient. Subsequently, the condition of the patient was becoming deteriorated and she was compelled to visit to the chamber of oncologist of Siliguri and ultimately she had to undergone a treatment at Saroj Gupta Cancer Centre and research Institute of Calcutta where the doctor attached to that institution performed modified radical mastectomy and also applied medicines and chemotherapy along with radiation. So, the complainant feels that he had to endure a lot of sufferance and to incur a huge expenditure for the treatment at different places due to medical negligence on the part of the appellant. So, she claimed compensation by registering the consumer complaint. Dr. Mahapatra the appellant of this case has contested the said consumer complaint case by submitting the written version and submitted that after detection of fibro adenosis on the right breast of the complainant, he had operated the same on 20/03/2016 and thereafter while it was detected that the patient was suffering in right breast cancer on 12/04/2016, he advised the patient to go to an oncologist for her treatment and on 12/04/2016 he has prescribed some medicines and such medicines was not meant for cancer patients but the general medicines prescribed for healing the other problems of the complainant. The further case of the appellant in the consumer complaint case is that he had no medical negligence on his part. He advised the patient to go to the oncologist at very outset of detection of cancer and he had no fault at the time of such treatment. Ld. Forum after hearing both sides and after recording the evidences came to a conclusion that while the appellant found that the patient was suffering in cancer then why he did not refer the patient to go to any oncologist while he continued treatment of the patient who was suffering in cancer in spite of the fact that he had no special degree of oncology. So, the Ld. Forum has asked the appellant to pay Rs. 5,00,000/- as compensation for negligence on his part and Rs. 5,000/- as litigation cost.

            Being aggrieved with the said order this appeal follows on the ground that Ld. Forum has failed to appreciate the case of the appellant that he rendered the right treatment in the initial stage of suffering of the patient by operation of fibro adenosis on 20/03/2016 and thereafter he referred the patient to the oncologist and he had no fault as because he did not prescribe medicines for the treatment of cancer but he had only make treatment of the patient for post fibro adenosis operation and prescribed medicines for healing the problems of post operation stage of the patient in order to subdue pains and sufferings and at very outset he advised the patient to go to the oncologist but Ld. Forum has failed to appreciate the same and delivered the impugned order which is liable to be set aside in appeal.

            The appeal was admitted in due course. The respondent Seema Debnath was asked to contest the appeal by issuing the notice. Seema Debnath had contested the appeal through her Ld. Advocate appointed by her. The appeal was heard through the legal representatives of the parties to the appeal.

DECISIONS WITH REASONS

            Admitted position is that the patient Seema Debnath was suffering from fibro adenosis and it was detected for the first time while the patient came to the chamber of Dr. N. Mahapatra on 18/03/2016 and at the advice of the doctor the patient was agreed to have a surgical operation of excision of mass which was held on 20/03/2016 in the chamber of Dr. Mahapatra. Thereafter, the histopathological test was held and the appellant/doctor came to know on 06/04/2016 that patient was suffering in right breast carcinoma. After going through the prescriptions issued by Dr. Mahapatra it is established beyond any doubt that he came to know such cancerous decease of the patient on 06/04/2016 and he started the treatment of the patient knowing fully well that the patient was suffering in cancer and he has no special skill to continue such treatment of cancer as he had no acquired degree of knowledge in the field of oncology. The prescriptions dated 06/04/2016 and 12/04/2016 clearly speaks that appellant/doctor was continuing such treatments even he advised the patient to have a blood test report which speaks that he never intended to dis continue the treatment of the patient or advise the patient to go to an oncologist. The fault of the doctor is apparently detected in this case as he prescribed the medicines which are applied only for the patients who was suffering in pains, anxiety and acidity etc. He did not prescribe any medicine which are generally applied for the cancer patients. The prescription of the doctor does not speak that he has referred the patient to an oncologist. Here Dr. Mahapatra is not a general physician but he is a gynecologist as well as infertility and laparoscopic surgeon. He had the opportunity to refer the patient to an oncologist on 06/04/2016 when he came to know that the patient was suffering in right breast carcinoma. The only negligence which is revealed in this case is that knowing fully well that he was not a cancer expert had continued treatment of a cancer patient without referring her to an oncologist. The medicines he has prescribed are not necessitated to a patient having sufferance of cancer. He has prescribed certain general medicines. Ld. Advocate of the appellant at the time of argument mentioned that there is no necessity to write in the prescription for advising the patient to go to a specialized treatment mere advice in oral is well enough in this regard. He further submits that the medicines prescribed in the prescription dated 06/04/2016 and 12/04/2016 clearly reflects that such medicines have no nexus with carcinoma and such medicines were all related to gynecology and other problems. So, the Ld. Forum has committed an error while he had no cogent reason to hold that the appellant/doctor had medical negligence and deficiency of service on his part. Ld. Advocate of the respondent argued before this Commission that after obtaining the report of the histopathological test the appellant/doctor should have referred the patient to a cancer specialist but he intentionally did not refer the patient for such treatment under oncologist but he went on to continue the treatment in spite of his knowledge that he is not an expert to make treatment of a cancer patient.

            After hearing the valuable arguments canvassed before this Commission by the Ld. Legal Counsels of both sides and after going through the material documents like prescriptions issued by the appellant/doctor and the contents of consumer complaint, written version and evidences tendered by the both parties this Commission finds that the appellant/doctor is a competent physician in the field of gynecology, infertility etc. but he had no special knowledge for making treatment of patient who are suffering in cancerous disease. We know very well that delay in treatment of a cancer patient sometimes becomes very fatal. Here as soon he came to know on 06/04/2016 that the patient was suffering from cancer he had the only course to refer the patient to the oncology without keeping the patient under his treatment. But he did not do the same and he continued the said treatment which clearly implies that there was medical negligence on his part. On the other hand, it is also undoubtedly proved that he had not prescribed any wrong medicines or his prescribed medicines has aggravated the disease of cancerous patient. The sufferings of the patient were aggravated only on the ground that there was some delay of resuming the cancer treatment of the patient. And for that reason, the appellant/doctor cannot be escaped from the liability of medical negligence which he has committed towards the treatment of the patient in this particular case. However, the quantum of compensation is found very excessive one as because the patient started her treatment within the month of detection of cancer and subsequently, she has recovered from the said disease after going through necessary treatments at renowned cancer institute and research centre at Calcutta. So, the amount of compensation fixes by the Ld. Forum to the tune of Rs. 5,00,000/- is found very excessive one and that amount should be reduced to Rs. 3,00,000/- and the remaining portion of the order of the Ld. Forum should be intact. Thus, the appeal is hereby disposed of after a modified order.

Hence it is ordered: -

            That the appeal be and the same is hereby partly allowed on contest without imposing any cost. The order of Ld. Forum directing the OP/appellant to pay Rs. 5,00,000 as compensation for deficiency of service is hereby reduced to Rs. 3,00,000/-. The litigation cost Rs. 5,000/- as awarded by the Ld. Forum remains intact and the other incidental orders of the Ld. Forum in reference to the award shall have to be remained intact and the force of the order of Ld. Forum after modification by this appellant Commission be implemented from this day.

            Let a copy of this order be supplied to the parties free of cost and the same be communicated to the Ld. Concerned Forum through e-mail.