The two appeals RBR/A/41/2018 and RBR/A/42/2018 are directed against the final order dated 31/1/2018 delivered by the Ld. DCDRF, Jalpaiguri in reference to CC no. 17 of 2017. The fact of the case in nutshell is that one Sukumar Mandal, the respondent no. 1 in the two appeals has registered a consumer complaint on 11/4/2017 before the Ld. DCDRF, Jalpaiguri to the effect that having burning sensation of his stomach, visited to Dr. SS Roy at Jalpaiguri for treatment where he was advised to have some medical tests for proper investigations like Endoscopy of Upper GI, complete hemogram, EDTA whole blood, some routine blood tests and Endoscopic Biopsy from Esophagial Ulcer called as histopathology on 1/4/2016. In accordance with the said advice, the said Sukumar Mandal went to said Surakha Diagnostic Centre at Jalpaiguri on 05/04/2016 where the said investigation was done and after collecting report from the Surakha Diagnostic Centre on 05/04/2016 he went again to Dr. SS Roy on 18/4/2016. On seeing all report Dr. Roy told him that the report of Endoscopy by Dr. Ranjan Majumdar and histopathalogical test done by Dr. A Mukharjee which was confirmed by Dr. Simanti Sinha appeared to him that he was suffering in suspected cancer. So, Sukumar Mandal was advised to go to a higher medical centre for his fatal disease. On hearing this he completely broken down and arranged some money for visiting at Vellore at Chennai for management of his treatment at Christian Medical College where repeated Endoscopy was done at CMC Vellore where endoscopy report detected as normal mucosa with no abnormality. The CT Scan at Vellore also did not show any evidence of malignancy. He was advised to go back to his own place and after one month have another Endoscopy in the locality to be obtained and if found the Endoscopy report normal, he was not required any further medical treatment.
After returning from Vellore as per advice of CMC, he again came to Anandalok Medical Centre at Siliguri on 30/5/2016 where her upper GI Endoscopy report was held and the said report also revealed the normal upper GI Endoscopy. So, he become confirmed after the medical report of CMC and further Endoscopy report of Ananalok Hospital that the medical test of him which was held at Surakha Diagnostic Centre private limited was wrong and for such wrong investigation he had to suffer tremendous mental agony, fear of life, sense of uncertainty due to utter negligence and carelessness of Surakha Diagnostic Centre and the doctors that is Dr. Ranjan Mazumdar, Dr. Shrimanti Sinha, Dr. Abhishek Mukherjee, so he registered a consumer complaint. The said consumer complaint was disputed by all the Ops of the case and they contended inter alia that they had no wrong on their part and the consumer complaint was registered only with mala fide intention and such consumer complaint should be dismissed.
Ld. Forum after hearing the case has came to a conclusion that OP no. 3 and OP no. 4 that is Dr. S Sinha and Dr. A Mukharjee who were involved over the histopathological report showing squamous Cell Carcinoma was incorrect one and due to some incorrect report of Carcinoma, the complainant was mentally shocked and had to suffer in tremendous anxiety. So, the Surakha Diagnostic Centre and the said two doctors were found responsible for causing mental anxiety and harassment which compelled the complainant to go to Vellore and for that reason, the Surakha Diagnostic Centre was asked to pay rupees 5000/- to the complainant Sukumar Mandal as litigation cost, rupees 45000 as treatment cost and rupees 90000 for the sufferance of mental agony of the complainant. Total 1,40,000 was awarded in favour of the complainant and in the said final order OP no. 1 was asked to pay the said money to the complainant and he was empowered to recover the 50 per cent of said amount from OP no. 3 and 4 proportionally. Being aggrieved with the said order, the two appeals followed. The appeal no. RBR/A/41/2018 registered by Surakha Diagnostic Centre private Ltd. against the principle respondent Sukumar Mandal and proforma respondents Dr. Ranjan Majumdar, Dr. Shrimanti Sinha and Dr. Abhishek Mukharjee. Dr. Shrimanti Sinha and Dr. Abhishek Mukharjee has jointly filed the RBR/A/42/2018 against Sukumar Mandal, Dr. Ranjan Majumdar and Surakha Diagnostic Centre as proforma respondent. Both the appeal was heard, in presence of Ld. Advocate of both sides as all the parties to these two appeals has contested the case through their Ld. Advocates.
D e c i s i o n w i t h r e a s o n s
During the course of argument, in appeal no. RBR/A/42/2018, Ld. Advocate of the appellant mentioned the histopathological finding of this case of Sukumar Mandal was based on the biopsy sample which was taken by Dr. R Majumdar and the specimen of tissues from the said Endoscopy was handed over to Dr. A Mukherjee who was attached with Kolkata Central Surakha Laboratory. The said histopathological report at Surakha Laboratory was done on the basis of the said specimen of the said tissues and biopsy samples and Dr. A Majumdar had to rely entirely on the clinical occumen of the Gastroenterologist Dr. R Majumdar who has done the Endoscopy at Jalpaiguri Surakha Centre. Dr. A mukharjee has prepared the histopathological report in consultation with Dr. Sinha over the slide of the sample biopsy and it was handed over to the patient for second opinion and for that reason, all slides were sent to the patient party along with hard copy. But in this case, the second opinion was not taken by the patient party over the said slides. In the particular case, the Ld. Forum also did not take any initiative to send the said slides for obtaining any expert opinion and for that reason, the finding of the Ld. Forum was incorrect one.
He further submits that in the consumer complaint there was no specific allegation of negligence on the part of the Dr. Abhishek Mukharjee and Dr. Sinha in preparing the biopsy report therefore, the ld. forum has committed an error holding the appellants of RRB.A.42. of 2018 liable to pay the compensation.
Dr. Ranjan Majumdar, common respondents in both the appeals, during the course of hearing, through Ld. Advocate appointed by him mentioned before this Commission that Dr. Majumdar has carried out the Endoscopy of upper GI Tract of Sukumar Mandal along with other blood investigation and USG, he found presence of multiple Oesophageal Ulcer and hookworm infestation in duodenum. The biopsy was sent to Surakha Central Laboratory at Salt lake as per standard protocol. So, Dr. Majumdar has nothing to do in this respect.
Ld. Advocate of the appellant in RBR/A/41/2018 that is Surakha Diagnostic Centre through ld. legal counsel mentioned that as per advice of Dr. SS Roy, the patient came to their institution on 5/4/2016 where with other investigations Endoscopic guided Biopsy was done from Ocophagial Ulcers and submitted for histopathological evolution on the same date and the biopsy material was sent to Surakha Central Laboratory at Saltlake as per standard protocol. The sample was put in 10 per cent neutral buffered formalin so that the same be preserved and no deterioration in the tissue architecture takes place. On receiving the sample at Central Laboratory the sample was received and initial documentation was performed by the technical staffs of histopathoical department. The specimen was sent to the grossing room and the grossing was performed by the concern pathologist by Dr. A Mukharjee. Grossing examination revealed threewhittis pieces of tissue. Largest one measuring 0.4*0.2*.01 CM. All the three tissue bits were submitted and processed for histopathological evolution. The sample underwent routine processing, block was prepared, sections were cut and mountained on glass side and staining was performed on next day. The slide was mounted and properly levelled. The slide was subsequently sent for endoscopic report to Dr. A Mukherjee who revealed a hyper plastic stratified squamous epithelial lining with focal dysplastic change and the slide was given to Dr. Sinha as per standard protocol who also suspected malignancy keeping the clinical endoscopic finding in mind who also observed that the case was squamous cell carcinoma.
Ld. Advocate further argued that the patient was informed about his disorder squamous cell carcinoma in good faith so that he could commence the treatment immediately for the recovery. And accordingly the patient had started treatment on the basis of said report and thereafter he went to Vellore and after 21 days the biopsy report of the patient Vellore has spoken otherwise.
He further argued that if there was any negligence on the part of the Surakha Diagnostic Centre and the physicians attached with institution then the complainant S Mandal had the opportunity to sent the said slides for any higher medical centre for examination and to gather the knowledge whether the report of Surakha Diagnostic Centre Pvt. Ltd. was current or not. He unnecessarily filed this case only to harass the doctors and the reputed institutions. In support of his argument, Ld. Advocate of Surakha Diagnostic Centre has refered some judicial decisions of
- Hon’ble NCDRC, in original petition no. 297 of 2002.
- Revision petition no. 334 of 2001
- FA 167 of 2010
He also further referred a judicial decision of Hon’ble Supreme Court of India in Civil Appeal no. 1385 of 2001 dated 10/2/2010. After going through all the judicial decisions of the Hon’ble higher Forum the commission find that in a case of medical negligence the principle of determination should be confined to the score that negligence is a sheer breach of a duty exercised by omission to do something which a reasonable man guided by those consideration which ordinarily regulate the conduct of human affairs who do or doing something which a prudent and reasonable man would not do. A medical practitioner would be liable only where his conduct failed before that of standards of any reasonably competent practitioner in the field. Negligence cannot be attributed to a doctors so long as he performed his duties with reasonable skill and competence.
After going all the judicial decisions reported above, the Commission find that the medical officials are always entitled to get protection so long as they perform their duties with reasonable skill and competence in the interest of the patients.
However, the interest and welfare of the patients had to be paramount for the medical professionals. But here in this case we found that after receiving the shocking news of Invasive Squamous Cell Carcinoma, the attending Dr. SS Roy, immediately advised to go to a higher medical centre for emergency treatment, within a short span of time. The patient fled to Vellore where then and there another Endoscopy and histopathological test was done there, where it was detected Normal upper GI Endoscopy. So, it has been crystal clear that the histopathological report submitted by Dr. Abhishek Mujharjee and confirmed by Dr. Shrimanti Sinha was palpably wrong and incorrect one. So, there was no necessity to send the slides for any expert opinion again and Ld. Forum has rightly observed that expert opinion is not always required to be called for where the negligence speaks itself and the doctrine of res ispa loquitor is applicable here in this case. The second histopathological report of Anandalok Hospital also ratified the findings of CMC, Vellore
Therefore, after hearing all the valuable arguments canvassed before this Commission, on the part of the legal counsels in both the appeals we found no gross errors in the observations of the Ld. Forum at the time of adjudicating the instant consumer dispute and no interference is required at the appellate stage. However, for the ends of justice the order of Ld. Forum should be enforceable not from the date of passing the final order of the Ld. Forum but from the date of receiving the copy of order of this Commission in this appeal.
Hence, it is,
O r d e r e d ,
that both the appeals be and the same bearing no. RBR/A/41/2018 and RBR/A/42/2018 are hereby dismissed on contest without any cost. The final order of Ld. DCDRF Jalpaiguri dated 31/1/2018 in CC no. 17 of 2017 is hereby confirmed. The order of Ld. Forum shall be enforceable from the date of receiving the copy of final order of this appeal passed by this Commission within 30 days of receipt, failing which 6 percent per annum as interest will carried on.
However, for the interest of justice, the direction upon the appellants to deposit rupees 10,000 in the SB account of West Bengal State Consumer Welfare Fund, is hereby rescinded. The remaining ordering portion of the final order of the Ld. Forum will be the same.
Let a copy of this order be sent to the concern DCDRF and also to be sent to the parties free of cost.
