For the Complainant: Ms. B. Choudhury, Mr. N. Sarkar, Advocate
For the Opp. Party No. 1: Mr. S. K.Goswami, Mr. R. Kathkatia, Advocate
For the Opp. Party No. 2. Mr. M.K.Choudhury, Mr. M.Dutta, Advocate
For the Opp. Party No.4: Mr. B. Bujarbarua, Mr.D. Chakraborty, Advocate
For the Opp. Party Nos.3,4 & 5: Mr.S. Dutta, Ms. M. Choudhury, Advocate
Date of Hearing: 09-01-2020
Date of Judgment: 13-02-2020
J U D G M E N T
BY MRS. JUSTICE DR. INDIRA SHAH, PRESIDENT,
The complaint has been filed by Smt. Uma Sarma, alleging that in the month of July, 1999, her minor daughter Miss Rekha Sarma suddenly fell ill, there was profused bleeding from her nose. The complainant admitted her daughter in Barthakur Clinic Private Limited Hospital, Kharghuli, Guwahati on 10-7-1999. Dr. P.K. Goswami, ENT Surgeon, as per the advice of the Nursing Home Authority, was called who performed punch biopsy of nasopharynx on 18-7-1999 and specimen was sent to the Brahmaputra Diagnostic and Research Centre. Dr. Umesh Chandra Dutta, Pathologist, submitted report indicating ‘poorly differentiated nasopharyngeal carcinoma’. Thereafter, the case was referred to Dr. K. Ahmed, M.S., ENT, Oncosurgeon, of Bhubanesdwar Barooah Cancer Institute. The complainant took her daughter to B. Barooah Cancer Institute on 7-8-1999. The specimen slides were reviewed and the Pathologists confirmed the earlier report. In the concern Institute the doctor concerned was about to start treatment but the complainant consulted Dr. P.K. Goswami who suggested that the complainant might go for treatment in B. Barooah Cancer Institute or else she may go for treatment at Tata Memorial Hospital, Bombay, if she could afford. On 24-8-1999, the complainant and her nephew took the patient to Tata Memorial Hospital. On 28-8-1999, Prof. Ashok Kr. Mehta, Cancer Surgeon, was consulted and accordingly to his advice, Nasopharyngoscopy was performed with ‘O’ telescope. No lesion could be seen. There were no nodes in the neck. MRI Scan of 30th August, 1999, also failed to reveal any mass lesion in nasopharynx . The histopathology slides from Dr. B. Barooah Cancer Institute were reviewed and the Pathologist opined no malignant cells were seen in the sections provided. The Surgeon, however, advised that complainant’s daughter should be followed up at 2 months intervals. The complainant took her daughter to Mumbai after two months.
2. The complainant has alleged that she spent a huge amount toward medical tests only to get a wrong diagnosis. She has claimed Rs. 8,00,000/- towards medical expenses, Railway fare, fooding & lodging, maintenance of escort etc, compensation of Rs. 5,00,000/-for mental agony, physical sufferings etc., Rs. 20,000/- for various expenses of her another minor, compensation of Rs. 50,000/- towards physical harassment, breakup of service, financial loss and Rs. 2200/- towards cost of litigation from the opposite parties, who are six in numbers.
3. The Opposite Party No. 3 Dr. Bhubneswar. Barooah contested the claim by filing written version. The case proceeded ex-parte against the other opposite parties.
4. The opposite party No. 3 in his written version has raised preliminary objection with regard to pecuniary jurisdiction of this Commission. The complainant has claimed Rs. 14,02,200/- which as per Section 17(1)(a)(i) of the Consumer Protection Act, 1986 as amended by Act 62 of 2002 w.e.f. 15-3-2003, the jurisdiction of this Commission is where compensation claimed exceeds Rs. 20,00,000/- (Twenty lakh). The complaint was filed on 21-7-2001. The issue raised by the opposite party was decided on 18-3-2010 and thus has attained its finality. The opposite party has denied that he submitted any report confirming the earlier report as alleged. It is also denied that the concerned doctor was about to start the treatment. According to opposite party No. 3, the opposite party Nos. 3,4, 5 and 6 are not at all connected with the diagnosis and/or treatment, review and confirmation of the slides and therefore, cannot be held liable in any manner.
5. Upon the pleadings following issues were settled for deciding the matter;-
(i) Whether the opposite parties were negligent and deficient in their service to the complainant ?
(ii) Whether there was any financial loss to the complainant in such negligence and deficiency in services of the opposite parties ?
(iii) Whether the daughter of the complainant was permanently physically and mentally suffering for such deficiency of service as complained ?
6. Complainant adduced evidence of three witnesses including herself. Three witnesses were examined on behalf of the opposite parties.
7. It appears from the evidence of P.W. 1 and P.W.2 that the complainant’s daughter was admitted to Barthakur Clinic in the month of July, 1999 and was treated there for a month. The complainant alleged that the opposite parties wrongly diagnosed that the patient was suffering from nasopharyngeal carcinoma (cancer). In her cross-examination, she admitted that she did not specifically indicate in her cross-examination as to for negligence of which of the opposite parties the disease was wrongly diagnosed. She also admitted that her daughter did not take any treatment at Dr. B. Barooah Cancer Institute and that she is entitled to compensation from the opposite party No. 1 Manendra Deka and opposite party No. 2 Umesh Ch. Dutta, Proprietor and Pathologist of Brahmaputra Diagnostic and Research Centre.
8. P.W. 2 stated in his cross-examination that he was not present when the patient was referred to B. Barooah Cancer Institute and he did not accompany the patient to B. Barooah Cancer Institute.
9. P.W. 3 accompanied the complainant and her daughter to Mumbai. It is in the evidence of P.W. 3 that Prof Ahok Mehta, a Cancer Specialist of Tata Memorial Hospital, on perusal of medical reports from Guwahati advised for several medical tests for further investigation and proper diagnosis of the illness of the patient. Prof. Mehta scrutinized the medical reports and declared that Rekha was not suffering from cancer. However, he advised that she should be followed up at two months interval. Thereafter, complainant had to visit several times to Mumbai for treatment of her daughter.
10. Opposite party No. 3 Dr. Tapan Kumar Goswami, Senior Administrative Officer of Dr. B. Barooah Cancer Institute deposed that Dr. Jagannath Sharma, Pathologist of Dr. B. Barooah Cancer Institute never confirmed the report submitted by the opposite party No. 2 i.e. Brahmaputra Diagnostic & Research Centre.
11. Opposite party No. 4, Dr. Jagannath Sarma, deposed that he never examined and confirmed any report submitted by Brahmaputra Diagnostic & Research Centre as regards any disease of Rekha Sharma. That he was never related with the diagnosis, treatment, review and confirmation of disease of Rekha Sharma. He denied his signature on Annexure -11.
12. It appears from Annexure- 14 and 15 i.e. medical report of Dr. Ashok R. Mehta that Nasopharyngoscopy was performed with ‘O’ telescope and the MRI Scan was also conducted for further investigation. From further investigation, it revealed that no malignant cells were seen. MRI Scan also failed to reveal any mass/lesion in the nasopharynx. In view of the clinical, MRI and Laboratory reports, Dr. Ashok R. Mehta opined that the patient had no naspharynx cancer at the relevant time. However, she was advised followed up at two months interval either at Hospital at Mumbai or to report to Dr. B. Barooah Cancer Institute.
13. The issue of negligence of a professional doctor to hold him liable for his medical act/advice to his patient which caused him/her some monetary loss, mental and physical harassment, injury and suffering is no longer res integra. The classic exposition of law laid down in Queen Bench in a leading case of Bolam Vs Friern Hospital Management Committee,(1957) 1 WLR 582 wherein it was observed;-
“ Where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of a clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess that highest expert skill….. It is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art.”
14. In Jacob Mathew Vs State of Punjab (2005) 6 SCC I, the Apex Court placing reliance on Balom’s case (Supra) held that,
“ A professional may be held liable for negligence on one of two findings, either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did not possess. Relying on the observations of Lord Denning made in Hucks v Cole (1968) 118 New LJ 469, the Supreme Court in Jacob Mathew case (supra) held;-
“A medical practitioner was not to held liable simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference of another. A medical practitioner would be held liable only where his conduct fell below that of the standard of a reasonably competent practitioner in his field.”
15. There is no allegation that the opposite parties are not professionally trained doctors. Annexure -9, report of pathologist of Brahmaputra Diagnostic & Research Centre shows;
“ Sections from the bits of issues sent for HPE show small sheets of poorly differentiated malignant squamous cells in a mass of lymphoid tissue. Changes consistent with Nasopharyngeal ca.”
16. The said report was not outright rejected by Dr. Ashok R. Mehta, Cancer Surgeon. Further, investigation was conducted. Nasopharyngoscopy with O telescope and MRI Scan were performed. On the basis of clinical, MRI and laboratory reports only the doctors opined that the patient has no nasopharynx cancer at the relevant time.
17. It is well settled that in case of medical negligence, an error of judgment may, or may not be negligent, it depends upon the error. If it is an error that such a man, acting with ordinary care might have made, then it is not negligence. However, gross medical negligence will always result is a finding of negligence.
18. Here in this case, Dr. A.R. Mehta of Tata Memorial Hospital ruled out nasopharynx cancer at the relevant time only after Nasopharyngoscopy was performed with O telescope and MRI Scan.
19. It may be a case of error of judgment but certainly it is not, in our opinion, a case of gross medical negligence.
20. In view of what we have discussed herein above, we find that the complaint filed by the complainant is liable to be dismissed. Accordingly, it is dismissed. Parties shall, however, bear their own costs.
