PER SHRI. S.B.DHUMAL - HON’BLE PRESIDENT :
1) In brief consumer dispute is as under –
It is averred in the complaint that the Complainant belongs to very reputed and known family from Hathras U.P. and presently he is Manager of CLRL Seksaria. In the month of June,2002 the Complainant was suffering from fever. The Complainant had taken medical treatment for the said at Hathras and Agra but he got no relief. Therefore, the Complainant came to Breach Candy Hospital, Mumbai. He was admitted in Breach Candy Hospital on 23/08/2002 and was discharged on 28/08/2002. During aforesaid period of six days several tests were carried out in the hospital and it was told to the Complainant that all reports were normal. The Complainant had already carried out similar tests at Hathras and Agra but again he was required to carry out aforesaid tests and after aforesaid tests it was told to the Complainant by the Opposite Party No.1 that reports are normal and no infection could be detected.
2) The Complainant has alleged that he was forced to take admission in Opposite Party No.1 hospital and during that period i.e. from 08/09/2002 to 19/09/2002 different tests were conducted by extracting huge quantity of blood. Besides this, the bone marrow was extracted by the Opposite Party No.3 and staff of Opposite Party No.1 hospital on 09/09/2002. During this process the Complainant had to undergo a very painful test as very thick needle was inserted into the Complainant’s back bone just below spine. On enquiry it was told to the Complainant that bone marrow was extracted for the purpose of biopsy and report of biopsy could be collected on 13/09/2002. On 13/09/2002 the Complainant approached the Opposite Party No.1 Hospital for collecting bone marrow biopsy report and other reports. That time Opposite Party No.3 told the Complainant that bone marrow extracted was lost and the Complainant will have to undergo same tests again. The Complainant contacted higher authorities of the hospital for the lost of sample and lodged a complaint. Opposite Party No.2 admitted the negligence of the hospital staff for loss of sample and admitted that all the expenses made by the Complainant in this regard shall be returned by the hospital. Accordingly, Opposite Party No.1 hospital has refunded a sum of Rs.12,535/- which was charged to the Complainant for the said bone marrow tests.
3) It is alleged by the Complainant that the Opposite Parties have acted negligently, carelessly and in a very inhuman manner in treating the Complainant. The Complainant had lost precious and valuable time for the so called treatment given by the Opposite Parties. The Complainant had suffered mental agony, stress, loss of strength due to deficiency in service on the part of Opposite Parties and it has cut short the span of real life of the Complainant. The Complainants family members have also undergone great mental agony. The Complainant had served Opposite Parties with legal notice through his advocate but none of the parties have neither sent reply to the notice nor complied with the said notice, therefore, the Complainant has filed this complaint.
4) The Complainant had requested to direct Opposite Party to pay compensation of Rs.20 Lakhs to the Complainant for the negligence of the Opposite Parties and for loss of bone marrow sample from the custody of the hospital. The Complainant has requested for total compensation for mental agony and cutting short span of real life. He has requested to direct Opposite Parties to pay Rs.12,500/- as cost of this proceedings.
5) Opposite Party No.1 to 3 have filed their common written statement and thereby resisted claim of the Complainant contending that allegations made in the complaint are false and the complaint deserves to be dismissed with cost.
6) Opposite Party have admitted that the Complainant was admitted in Breach Candy Hospital on 23/08/2002 under Opposite Party No.2 for management of Pyrexia of Unknown Origin (P.U.O.). The Complainant was suffering from fever for the past two months and was as such, started on anti-TB treatment. Since he did not respond to the same, the doctor attending on him advised further extensive investigation. One such investigation is a bone marrow study to see whether the patient is suffering from any hematological malignancy. However, the Complainant refused to have the bone marrow test. So the Complainant was discharged on 28/08/2002. The Complainant’s fever continued despite anti-TB treatment, so the Complainant got himself readmitted on his own accord in Breach Candy Hospital for further treatment and this time he agreed for bone marrow study.
7) It is submitted that bone marrow study involves administration of a local anesthetic in the posterior superior iliac crest and aspiration is carried out and slides are prepared and thereafter with the same needle, bone marrow biopsy is also done. Normally, if the study of the bone marrow aspiration is negative, the bone marrow biopsy study is not done. But if the bone marrow aspiration indicates any abnormality, the biopsy study is carried on for further confirmation. In the case of the Complainant the bone marrow aspiration study was normal and as such there was no need of any further biopsy study to be done and the same was not performed.
8) Opposite Parties have denied allegations made in the complaint that the complainant was forced to take admission in Opposite Party’s hospital. Further they have denied allegations that the huge quantity of blood was extracted with very thick needle. According to the Opposite Party bone marrow was extracted without any difficulty to the Complainant.
9) It is submitted that the Complainant was given copy of bone marrow aspirate report dtd.09/09/2002, which indicated that Complainant’s bone marrow was normal and as such, biopsy study was not done. The Complainant has not suffered any adverse effects as consequence of bone marrow biopsy study not being done. The Complainant never complained of improper treatment or lack of attention or of medical care to the Opposite Party during both hospitalizations in the Opposite Party No.1 hospital. Opposite Parties have denied allegations made by the Complainant in that respect. Opposite Parties have denied the allegations that bone marrow aspirate was lost. According to Opposite Party the Complainant was suffering from fever for a very long time and he was advised to find cause of his illness and as per the bonafide opinion of doctors, his admission in the hospital was necessary. The Opposite Parties are well known for their excellence in the medical field and have achieved this status by consistently rendering quality human services without any commercial motive. They have denied that the Complainant has suffered mental agonies, stress or loss of strength, nor his life span been cut-short as alleged. If there would have been any negligence or misconduct or commercial approach as alleged, then the Complainant would not have got himself readmitted under the care of Opposite Party No.2 in the Opposite Party No.1 hospital.
10) It is submitted by the Opposite Parties as a goodwill gesture, the Opposite Party refunded Rs.12,535/- to the Complainant in view of his pleadings with Opposite Party No.1 hospital. Allegations made in the complaint are frivolous, unrealistic and exorbitant therefore, the complaint deserves to be dismissed with cost.
11) Alongwith complaint, the Complainant produced documents as per list of documents. The Complainant has filed his affidavit in support of his complaint. The Opposite Party has produced photo copy of bone marrow aspiration report dtd.09/09/2002 of the Complainant alongwith written statement at Exhibit-‘E’. The Complainant has filed rejoinder and thereby denied allegations made in the written statement.
12) Both the parties filed an application seeking directions for production of documents. The Complainant has produced photo copy of the notice dtd.06/12/2003 sent to the Opposite Party, Receipt for collecting biopsy report, Letter dtd.23/09/2002 issued by Breach Candy Hospital, Medical Discharge Card, Letter dtd.23/09/2002 sent by Dr.F.H.Udwadia. The Complainant filed examination-in-chief by way of affidavit. Opposite Party has field affidavit of Dr.Geeta Koppikar, Medical Director of Breach Candy Hospital alongwith Bone Marrow Aspiration Report of Tata Memorial Hospital dtd.12/07/2005 and copy of opinion of Dr.Sastry, M.D.,ECMO of Tata Memorial Hospital dtd.23/08/2005.
13) The Complainant has filed written argument. Opposite Party has also filed written argument. On 20/05/2010 the Complainant and his Advocate were absent so the matter was adjourned for oral argument on 16/06/2010. On 16/06/2010 the Complainant and advocate for the Complainant were absent. As mentioned above the Complainant has already filed written argument so we heard oral submissions of Ld.Advocate-Mr.Prabhavalkar for the Opposite Party.
15) Following points arises for our consideration and our findings thereon are as under –
Point No.1 : Whether the Complainant has proved deficiency in service on the part of Opposite Parties ?
Findings : The Complainant has proved deficiency in service on the part of Opposite Party No.1.
Point No.2 :Whether the Complainant is entitle to recover compensation and cost of this proceeding as prayed for ?
Findings : As per final order.
Reasons :-
Point No.1 :- Following facts are admitted facts – that the Complainant was suffering from fever in the month of June, 2002 and inspite of having medical treatment at Hathras and Agra the Complainant could not get any relief. Therefore, the Complainant came to Mumbai and took admission in Breach Candy Hospital under care of Opposite Party No.2 and he remained as indoor patient in the said hospital till 28/08/2002. According to the Complainant, he had shown the test reports which he got done at Agra. During the aforesaid period of six days at Breach Candy Hospital, the doctors carried out various tests and it was told to the Complainant that all the reports were normal and no infection could be detected. As the doctors did not diagnose anything and no medicine was given to him. He was advised to continue prescriptions of Agra and Hathras doctors. On 28/8/2002 the Complainant was discharged from hospital and again he was forced to take admission on 08/09/2002. From 08/09/2002 to 10/09/2002 different tests were conducted.
It is alleged by the Complainant that during the period from 08/09/2002 to 10/09/2002 various tests were conducted by extracting huge quantity of blood. Besides this, the bone marrow was extracted by Opposite Party No.3 – Dr.V.P.Antia and staff of the Hospital on 09/09/2002. During this extraction process the Complainant had to undergo a very painful tests as very thick needle was inserted into the Complainants back bone just below spine. It was told to the Complainant that bone marrow was extracted for the purpose of biopsy and he could collect report of biopsy on 13/09/2002.
It is alleged by the Complainant that on 13/09/202 vague and unsatisfactory reply was given to him by the staff of Opposite Party No.1 and he was advised to contact Opposite Party No.3. On 15/09/2002 he contacted Opposite Party No.3 - Dr.V.P.Antia who told him that the sample of bone marrow which was extracted on 09/09/2002 was lost and the Complainant had to undergo the same procedure again. It was painful process so the Complainant refused to undergo another test of bone marrow extraction. He contacted higher authorities and the doctors about the loss of bone marrow sample and lodged complaint of mismanagement and carelessness. According to the Complainant Opposite Party No.2 - Dr.F.H.Udwadia admitted negligent of staff for loss of sample and told the Complainant that all expenses incurred by the Complainant in this regard would be refunded to him. Subsequently Opposite Party No.1 had returned a sum of Rs.12,535/- to the Complainant which was charged for the said bone marrow test.
According to the Opposite Parties, on 23/08/2002 the Complainant got himself admitted in Breach Candy Hospital. The Complainant was suffering from undiagnosed fever from June, 2002 onwards and he had undergone treatment at Hathras and Agra. After admission the Complainant was kept under observation and was advised to continue the anti TB treatment. During observation the Opposite Party conducted its own investigation on the Complainant to arrive at a diagnoses. In view of continuous fever, it was decided to carry out further intensive investigation, one of which was to conduct a bone marrow procedure to see whether the Complainant was suffering from any hematological malignancy. Inspite of Opposite Parties advise the Complainant refused to undergo bone marrow test and got himself discharged on 28/08/2002. Subsequently on 08/09/2002 the Complainant again got himself readmitted and bone marrow extraction was done by Opposite Party on 09/09/2002. According to the Opposite Party, bone marrow extraction procedure was conducted by using smallest gauge disposable paediatric13G X 10 needle under local anaesthesia thereby extracting adequate sample amounting to approximately 0.5 ml. for bone marrow for study. Opposite Party has denied the allegation that very thick needle was inserted and it was very painful procedure. Further it is denied that huge quantity of blood was extracted.
It is submitted on behalf of Opposite Party that bone marrow aspiration was done and since bone marrow aspiration was normal. Further study of bone marrow biopsy was not conducted. Non-conducting of study of bone marrow biopsy has not in any manner harmed or affected to the Complainant.
In the complaint para no.6 the Complainant has alleged that on 3/09/2002 when he went to collect bone marrow biopsy concerned staff gave him vague and unsatisfactory reply so he contacted Opposite Party No.3 on 15/09/2002 and she told him that sample of bone marrow extracted on 09/09/2002 was lost. Opposite Parties in their written statement have not specifically denied aforesaid allegations. In complaint para no.7 the Complainant has alleged that Dr.F.H.Udwadia admitted the negligence of staff for the lost of sample. This allegation is also not denied by Opposite Parties. According to the Complainant, Opposite Party NO.2 Dr.F.H.Udwadia told the Complainant that all the expenses made by the Complainant in this regard would be returned to the Complainant and accordingly, the Opposite Party No.1 has refunded Rs.12,535/- to the Complainant. The Opposite Parties have admitted refund of Rs.12,535/- to the Complainant however, according to the Opposite Parties aforesaid amount was refunded to the Complainant as a fine gesture but, the Complainant has taken it as a weakness of the Opposite Party and resorted to on lawful tactics.
As mentioned above it is a grievance of the Complainant that after admission in the Breach Candy Hospital he was required to undergo various tests even though he had already conducted the said test at Hathras and Agra. It is further alleged by the Complainant the huge quantity of blood was extracted during the extraction of bone marrow a very thick needle was inserted into the Complainants back bone and it was very painful process. Further, according to the Complainant due to the negligence of the Opposite Party bone marrow biopsy was lost. He made complaint regarding mismanagement but no action was taken against the concerned staff. Opposite Party No.2 admitted that bone marrow biopsy sample was lost due to negligence of staff and assured to refund the expenses incurred by the Complainant for the said. It is undisputed that on 17/09/2002 an amount of Rs.12,535/- was refunded to the Complainant. Ld.Advocate for the Opposite Party Mr.Prabhavalkar as submitted that Breach Candy Hospital is a reputed hospital and at most care was taken in the hospital while treating the patients. He has explained to us what procedure was followed at the time of extraction of bone marrow. It appears that bone marrow was extracted by taking proper care by administrating local anesthesia. The Complainant has vaguely alleged that huge quantity of blood was extracted and procedure of extraction of bone marrow was very painful. However, considering the evidence adduced by Opposite Party we do not find substance in the aforesaid allegations made by the Complainant.
Second grievance made by the Complainant is that bone marrow sample extracted by Opposite Party was lost due to the negligence of the staff of Opposite Party No.1. As mentioned above as per the Complainant, on 13/09/2002 when he went to Breach Candy Hospital for collecting report of bone marrow biopsy staff of Opposite Party No.1 gave vague reply so on 15/09/2002 he made contact with Opposite Party No.3 Dr.V.P.Antia who told him that bone marrow extracted on 09/09/2002 was lost and that the Complainant had to undergo for extracting another sample of bone marrow. The Complainant has further stated that Opposite Party No.2-Dr.F.H.Udwadia admitted the negligence of the staff for lost of sample. In the written statement Opposite Parties have not specifically denied the aforesaid allegations. In the written argument it is stated that bone marrow aspiration report was given to the Complainant on 09/09/2002. It submitted on behalf of Opposite Party that bone marrow aspiration report was normal and there was no need to process further biopsy study. According to Advocate Mr.Prabhavalkar, Opposite Party had preserved slides of aspiration of the Complainant and subsequently it was sent to Tata Memorial Hospital which confirm opinion of use of the Opposite Party that further biopsy study is not necessary. He has referred to affidavit of Dr.Geeta Koppikar, Medical Director of Breach Candy Hospital. Dr.Koppikar has stated that Opposite Party had not sent slides of bone marrow aspiration done in the case of Complainat to Tata Memorial Hospital and also sent papers for review to Dr.P.S.R.K. Sastry, M.D.ECMO of Tata Memorial Hospital. Alongwith affidavit of Dr.Koppikar photo copy of bone marrow aspiration report of Tata Memorial Hospital and letter of Dr.P.S.R.K. Sastry are produced. It is stated in the report of Tata Memorial Hospital that bone marrow aspiration report is “normal manner”. Dr.P.S.R.K. Sastry in his letter addressed to Dr.Koppikar has stated that after reviewing bone marrow aspiration slides ….. “would say it is normal aspiration i.e. there is no evidence of lucomaniya or malignancy monomial. Hence, further study of real out either of two diseases would not be requires”.
By referring to the aforesaid report it is submitted by Ld.Advocate for Opposite Party that by not processing bone marrow biopsy the Complainant has not suffered any harm. There is nothing to show that the Complainant have any disease like malignancy. According to the Ld.Advocate for Opposite Party bone marrow sample was never lost and the allegations made by the Complainant are without basis and false. It is admitted fact that on 09/09/2002 the Complainants bone marrow was extracted. Dr.Koppikar in her affidavit has stated that bone marrow was study necessary and it is done under local anesthesia and bone marrow aspiration and biopsy is done in single procedure. In this case Opposite Parties have adduced evidence on record regarding aspiration report, submitting that aspiration report was normal and therefore bone marrow biopsy study was not.
As per the Complainant on 13/09/2009 he was called to the Opposite Party No.1 hospital to collect report of bone marrow biopsy and other reports. To support his contention the Complainant has produced copy of the receipt for collecting biopsy report. He had called upon Opposite Parties for production of receipt of biopsy report but Opposite Party has not produced the same. It appears from the photo copy of original receipt that the Complainant was called upon to collect bone marrow biopsy report. Allegations made by the Complainant in his affidavit in lieu of examination-in-chief that on 15/09/2002 Opposite Party No3 told him that bone marrow extracted on 09/09/2002 was lost is not denied specifically by Opposite Party. Further it is to be noted that as per the Complainant when he made complaint of mismanagement and carelessness to Dr.F.H.Udwadia - Opposite Party No.2, Dr.Udwadia admitted the negligence of staff for lost of sample. In this case the Complainant has produced on record letter dtd.23/09/2002 written by Dr.F.H.Udwadia addressed to the Complainant. In the letter paragraph no.2 Dr.F.H.Udwadia has clearly stated “it indeed unfortunate that the biopsy done was misplaced by the Hospital staff. It is further advisable to repeat a bone marrow biopsy”. It is true that Opposite Party No.2 is a renowned doctor attached to Breach Candy Hospital. As mentioned above Opposite Party No.2 has clearly admitted that biopsy done was misplaced by the hospital staff. Misplacing of biopsy sample by the staff of Opposite Party amounts to negligence and deficiency in service on the part of Opposite Party No.1.
It is the case of the Complainant that bone marrow sample was lost and so he made complaints to various authorities and that time Opposite Party No.2 assured that expenses incurred by him will be refunded. Accordingly on 17/09/2002 an amount of Rs.12,535/- was refunded to him. Ld.Advocate for Opposite Party has submitted that by way of goodwill and gesture an amount of Rs.12,535/- was refunded to the Complainant. Dr.Koppikar in her affidavit has stated that since the bone marrow biopsy was not processed the amount collected for the test was refunded by Opposite Party No.1 to the Complainant. Opposite Party No.1 had collected necessary charges for bone marrow study prior to the extraction of bone marrow sample thereafter that the Complainant was discharge from Opposite Party Hospital on 10/09/2002. At the time of discharge of the Complainant from the Opposite Party Hospital it was expected on the part of Opposite Party No.1 to refund the amount collected for bone marrow biopsy as biopsy study was not conducted. It appears that when the Complainant repeatedly made complaints to the Opposite Party, amount of Rs.12,535/- was refunded to the Complainant. Late refund of the amount also amounts to deficiency in service on the part of Opposite Party No.1. The Complainant has alleged that while collecting bone marrow sample Opposite Party No.3 and staff of Opposite Party No.1 acted inhuman manner. No proper care was taken. However, as discussed above the Complainant has failed to prove aforesaid allegations. It appears that Opposite Party No.3 had followed proper procedure while collecting bone marrow sample of the Complainant. There is no substance in the aforesaid allegations made by the Complainant. In the complaint the Complainant has not made any specific allegations of deficiency in service or of negligence against Opposite Party No.2. There is also no evidence on record to prove deficiency in service on the part of Opposite Party Nos.2 and 3. Considering evidence on record that we hold that the Complainant has proved deficiency in service on the part of Opposite Party No.1 only in the result we answered point no.1 accordingly.
Point No.2 :- The Complainant has claimed compensation of Rs.20 Lakhs for the negligence and of deficiency in service on the part of Opposite Parties. He has also claimed Rs.12,500/- as cost of this proceeding. In the complaint, Complainant’s affidavit as well as in the written argument it is stated that the Complainant is from very reputed family from Hathras U.P. He had come to Breach Candy Hospital for treatment but due to negligence and deficiency in service on the part of Opposite Parties he suffered physical and mental agony and financial loss. His family members have also suffered mental agony and on aforesaid ground he has claimed Rs.20 Lakhs as compensation. Ld.Advocate for the Opposite Party has submitted that in this case the Complainant has not proved that he has suffered any harm or loss due to the alleged negligence or deficiency in service on the part of Opposite Party. It is further submitted that the Complainant has claimed exorbitant amount by way of compensation and there is no evidence on record to justify his claim for compensation of Rs.20 Lakhs.
Absolutely there is no evidence on record to show that the Complainant has suffered any physical harm due to the loss of bone marrow biopsy sample. Opposite Party No.1 has refunded to the Complainant an amount of Rs.12,535/- which was collected for bone marrow biopsy test. Considering the aforesaid facts and circumstances of the case we think it just to direct Opposite Party No.1 to pay Rs.50,000/- as compensation for mental agony, inconvenience and harassment to the Complainant. We also think it just to direct Opposite Party No.1 to pay Rs.10,000/- as cost of proceeding to the Complainant. Therefore, we answer point no.2 accordingly.
For the reasons discussed above, the complaint is partly allowed against Opposite Party No.1 only. Therefore, we pass the following order -
O R D E R
i.Complaint No.242/2003 is partly allowed against Opposite Party No.1 only.
ii.Opposite Party No.1 - Breach Candy Hospital, Mumbai shall pay an amount of Rs.50,000/- (Rs.Fifty Thousand Only) to the Complainant towards
compensation for mental agony, inconvenience & harassment caused to the Complainant.
iii.Opposite Party No.1 shall pay an amount of Rs.10,000/- (Rs.Ten Thousand Only) as cost of this proceeding to the Complainant.
iv.Complaint against Opposite Party No.2 & 3 is dismissed with no order as to cost.
v.Opposite Party No.1 shall comply with the aforesaid order within period of 45 days from the date of receipt of this order. In case of failure to comply with
the aforesaid order within stipulated the Opposite Party No.1 shall be liable to pay interest @ 9 % on compensation amount of Rs.50,000/- from the date of
this order till realization of entire amount to the Complainant.
vi.Certified copies of this order be furnished to the parties.
