DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

PATIALA.

                                      Consumer Complaint No.  387 of 9.10.2017                      

                                      Decided on: 6.9.2021

Om Parkash Jindal S/o Late Hari Chand, through his LR’s

1. Pushpa Jindal widow of late Om Parkash Jindal
2. Abhinav Jindal S/o  Late Om Parkash Jindal
3. Aditya Jindal S/o late Om Parkash Jindal

All residents of H.No.479, Ward No.10B, Shivpuri Mohalla, Dhuri, District Sangrur.

4. Ritesh Jindal S/o Late Om Parkash Jindal, resident of Quarter No.228.

                                                                   …………...Complainants

                                      Versus

1. Walia Hospital, Railway Station-Dukh Niwaran Road, Patiala, through Dr.R.P.S.Walia and Dr.Jaspreet Walia.
2. Ashok Clinical Laboratory, Bank Colony, Badungar Road, Patiala through Dr.Sandeep Gupta s/o Dr.Ashok Gupta.
3. National Insurance Co. Ltd. Branch Office, Cinema road, Nabha, District Patiala-147201, issuer of medical establishment/Professional negligence errors and omissions Insurance policy No.401407/46/14/870000071.
4. National Insurance Company Ltd., Registered Office-3, Middleton Street, Calcutta-700071.
5. The United India Insurance Co. Ltd., 42-C, 3^rd Floor, Moolchand Complex, New Delhi-110024, issuer of professional indemnity policy No.041200/46/14/35/00005068.

                                                                   …………Opposite Parties

Complaint under the Consumer Protection Act

QUORUM

                                      Sh. Jasjit Singh Bhinder, President

                                      Dr.Harman Shergill Sullar,Member 

ARGUED BY              

                                       Sh.U.K.Ghai, counsel for the complainant.

                                      Sh.A.S.Saran, counsel for OP No.1.

                                      Sh.Sukhdeep Singh Sahni,counsel for OP No.2.

                                      Sh.Alok Mathur, counsel for OPs No.3&4.

                                      Sh.D.P.S.Anand, counsel for OP No.5.                        

 ORDER

                                      JASJIT SINGH BHINDER,PRESIDENT

1. At the outset, it is stated that initially the complaint was filed by Om Parkash Jindal and on 23.12.2020 an application was filed by the ld. counsel for the complainant for impleading LR’s of Om Parkash Jindal, he having died on 3.12.2020, during the pendency of the complaint. The application was allowed and the LRs were allowed to be impleaded in the array of the complaint.
2. The brief facts of the case are that Om Parkash Jindal was retired Govt. lecturer from Govt. Senior Secondary School, Village Dhuri, District Sangrur. It is averred that there was small swelling in the left leg of Om Parkash Jindal since last 25-30 years and in the month of October,2015, the said swelling started paining and Om Parkash Jindal approached OP No.1 for checkup who conducted the operation on 12.10.2015 without conducting any medical tests, x-ray, MRI etc..It is further averred that the residues were sent to OP No.2 for medical test by OP No.1.The family members of Om Parkash Jindal got the report on 12.10.2015 in which it has been specifically mentioned that, “no definite evidence of malignancy is seen in any of the specimen”.
3. It is further averred that after the operation, the pain in the leg was not cured and the complainant visited PGI Chandigarh on 28.12.2015, where the doctors of PGI Chandigarh conducted thorough checkup and advised Om Parkash Jindal to bring medical slides and blocks from OP No.2 for its review, the same were obtained and submitted with the doctors of PGI on 31.12.2015.They also advised for conducting the medical tests i.e. MRI, CT-Scan, Chest X-ray-PET-CT etc. It is further averred that the doctors of PGI Chandigarh reviewed the test conducted by OP No.2 and observed that it was an epithelioid leiomyoscarcoma (tumor) in the left leg of Om Parkash Jindal. It is further averred that the OP No.1 has committed medical negligence by not getting conducting the required medical tests as prescribed by prevailing line of action by medical practitioners .It is further averred that the OP No.2 has also committed medical negligence by giving the wrong report.
4. It is further averred that the doctors of PGI, Chandigarh advised Om Parkash Jindal for chemotherapy for curing the disease which he took for three months. Thereafter, he was admitted in Orthopedic department of the PGI and the operation was conducted on 22.4.2016 for removing the fibula bone from the left leg of Om Parkash Jindal and he was admitted in PGI, Hospital, Chandigarh from 15.4.2016 to 30.4.2016.
5. It is further averred that Om Parkash Jindal had to undergo two operations due to negligent act of the OPs and if they gave correct medical reports then the problem can be cured in one operation. It is further averred that thereafter Om Parkash Jindal approached  the OPs for their negligent act and wrong reports and also requested them to pay the compensation but the OPs flatly refused to accede the genuine requests of Om Parkash Jindal for which he suffered from mental agony, harassment and financial loss at the hands of the OPs.
6. On this background of the facts, this  complaint has been filed with  the request to accept the same by giving directions to the OPs to pay the compensation of Rs.10,00,000/- alongwith interest @18% per annum from the date of treatment till realization and Rs.22,000/-as litigation expenses.
7. Upon notice OPs appeared and filed their written replies.
8. In the written reply  filed by OP No.1, preliminary objections have been raised , that the present complaint is wholly misconceived, groundless, frivolous, vexatious and scurrilous which is unsustainable in the eyes of law and has been filed without justified reason/cause just to harass, defame and extort illegal sum of money from OP No.1; that no specific, scientific and justified allegations with regard to negligence or deficiency in providing services has been made by the complainant; that the complainant has not come to the court with clean hands; that the complainant  has no locus standi to file the present complaint, the allegation of undergoing two surgical procedure due to negligence are baseless, falsified as excisional biopsy/WLE is a kind of surgical procedure and are the initial stop for any further treatment that may be required after accessing the histopathology report of the tissue obtained from such surgical procedure. Further management, depending on the histopathology report which can be (1) ‘No further treatment required’, if the biopsy turns out to be benign( non-cancerous), (2) follow up, if the biopsy report is inadequate or doubtful,(3) further investigations with CT,MRI, PET scan, tumor markers leading to chemotherapy, radiotherapy  or a second surgery if, the histopathology report turns out to be cancerous; as has happened in this case after the same biopsy blocks and slides were reported as malignant after second review in PGI. Hence in the light of the biopsy findings and the clinical condition at that time, required a second surgical procedure. Further,  it is submitted that OP No.1 being a qualified medical practitioner has obtained an insurance policy of medical establishment/professional negligence errors and omission from National Insurance Company having No.401407/46/14/870000071 w.e.f 14.12.2014 to 7.12.2015.
9. On merits, it is submitted that complainant Om Parkash Jindal was taken up for excisional biopsy (a surgical procedure) on 12.10.2015 and the procedure was performed after doing all the required tests; proper clinical examination and proper preoperative work up. It is further submitted that all radiological reports have in one form or the other written at the bottom of the report “ This report is not a final, definite diagnosis, it should be confirmed with clinical findings and a biopsy i.e. tissue diagnosis”.C.T.Scan was also  done and report was sent for clinical findings to OP No.2  but in the report there was no  findings. The original report was handed over to the complainant Om Parkash Jindal who was advised for regular follow up. It is not in the knowledge of the OP that report was given by PGI Chandigarh and the period of 2 ½ months was passed between the surgery conducted by PGI and the OP. No illegality was committed by the OP. It is further stated that PET scan and MRI were done after malignancy report came on 2.1.2016. Prayer has been made that there is no medical negligence on the part of the OP and the complaint  be dismissed.
10. In the written reply filed OP No.2, it also raised preliminary objections. On merits, it is submitted that it is not possible for a malignant tumor to have such a long course of development before causing significant problem to the patient. Such tumors always take a short period of a few months. It is further submitted that the report was not a final diagnosis and the test does not carry 100% accuracy. It is further submitted that there is no negligence  or unfair trade practice or deficiency on the part of the OP and the complaint is liable to be dismissed.
11. In the written reply filed by OPs No.3&4, they have also raised preliminary objections with regard to the maintainability of the complaint. On merits it is pleaded that there is no negligence on the part of OP No.1 and the complaint is liable to be dismissed.
12. In the written reply filed by OP No.5 it also raised preliminary objections with regard to the maintainability of the complaint. It is admitted that the OP had issued Professional Indemnity Doctor (other) policy for the period from 28.10.2014 to 27.10.2015 in favor of OP No.2.On merits, it denied all the averments and has prayed for the dismissal of the complaint.
13. In support of the complaint, the ld. counsel for the complainant has tendered in evidence Ex.C1 affidavit of Om Parkash Jindal alongwith documents Exs.C2 to C99 and closed the evidence.
14. The ld. counsel for OPs No.3&4 tendered in evidence Ex.OPA affidavit of Parmod Kumar Jain, Sr.Divn.Manager NIC alongwith documents Exs.OP1 and OP2 and closed the evidence.
15. The ld. counsel for OP No.1 tendered in evidence Ex.OPB affidavit of Dr.Jaspreet Singh of Walia Hospital alongwith documents Exs.OP3 to OP14 and closed the evidence.
16. The ld. counsel for OP No.2 has tendered in evidence Ex.OPC affidavit of Dr.Ashok Kumar Gupta alongwith documents Exs.OP15 to OP17 and closed the evidence.
17. The ld. counsel for OP No.5 has tendered in evidence Ex.OPD affidavit of Kuldeep Kaur, Manager alongwith documents Ex.OP18 and closed the evidence.
18.  We have heard the ld. counsel for the parties and have also gone through the record of the case, carefully.
19.  The ld. counsel for the complainant has argued that Om Parkash Jindal has died and he was retired as Lecturer from Govt. Senior Secondary School. The ld. counsel further argued that there was small swelling in the left leg of the complainant since 25-30 years and in the month of October/2015 the said swelling started pain and  complainant approached OP for checkup. The ld. counsel further argued that on 12.10.2015 the complainant visited OP No.1 and operation was advised and conducted on the same day. The ld. counsel further argued that residues were sent to OP No.2 for tests. The ld. counsel further argued that the pain was not cured. The ld. counsel further argued that the OP No.2 gave a finding that there is no definite evidence of malignancy seen in any of the specimen. The ld. counsel further argued that the complainant visited PGI Chandigarh and the doctor reviewed the tests, checked by OP No.2 and it was found that there was epithelioid leiomyoscarcoma  tumor in the left leg of the complainant. The ld. counsel further argued that there is medical negligence on the part of OPs No.1&2 as they have given wrong report. In support of the submission, the ld. counsel has relied upon the citations Nizam Institute of Medical Sciences Vs. Prasanth S.Dhanaka and others 2009(3) R.C.R. (Criminal) 124,  V.Kishan Rao Vs. Nikhil Super Speciality Hospital & Another 2014(4) JT 630,  Pushpa Namdeo and Ors. Vs. Vimal Golcha(Dr.) 2010(1) C.P.J.222 and Mulkh Raj Vs. Jaipur Golden Hospital and Ors. 2018(2)C.P.R.341.
20. On the other hand, the ld. counsel for OP No.1 has argued that there was no medical negligence on behalf of OP No.1.The ld. counsel further argued OP no.1 performed the surgery and sent the residues for report to OP No.2 laboratory and it is laboratory who has given wrong report. The ld. counsel further argued that as the doctor was not negligent so no compensation can be leveled against OP No.1. The ld. counsel has relied upon the citation  Kusum Sharma & Ors.  Vs. Batra Hospital & Medical Research Centre & Ors. 2010 (1) Apex Court Judgments 445(S.C.)
21. On behalf of OP No.2, the ld. counsel has argued that there is no negligence on behalf of OP No.2 Lab. The ld. counsel further argued that they have given the report as per clinical findings on the residues sent by OP No.1.The ld. counsel further argued that OP No.2 is well qualified doctor and it is admitted that he gave biopsy report with no sign of malignancy. However, it is also mentioned that patient may be kept under observation. It is further argued that the test does not carry 100% accuracy. It is argued that  there was nothing wrong in the report and the complaint be dismissed.
22. On behalf of the Insurance company, the ld. counsel argued that there is no medical negligence in the present case. The ld. counsel further argued that the report was given as per the medical pathology by OP No.2 and complaint be dismissed.
23. To prove this case, the ld. counsel has tendered affidavit Ex.C1 of Om Parkash Jindal  who has died, and he had deposed as per the complaint. He has stated that OP No.2 has given the report that there was no malignancy. Further when the same was checked up by PGI, Chandigarh, they found that there was tumor in the left leg of the complainant.Ex.C2 is the slip of Walia hospital. Ex.C3 is important document, in which it is mentioned that , “no definite evidence of  malignancy has been seen in any specimen”.

So it is clear that as per the report of Ashok Lab. there was no malignancy seen.

Ex.C4 is the record of PGI when Om Parkash was admitted on 7.4.2016 due to swelling in the left lower limb from last one year.Ex.C5 is also medical record of PGI in which it mentioned that the patient has to undergo two cycles of chemoradiology to downgrade tumor in order to facilitate limb salvage.

So it is clear that there was tumor as per PGI findings and as per the report of PGI, it was mentioned that biopsy be repeated and after that biopsy was repeated and tumor was found. So it is clear that wrong report,Ex.C3 was given by Ashok Laboratory.

Ex.C6 and Ex.C7 are also record of PGI, Ex.C8 is MRI report, Ex.C9is report of radiological report, Ex.C10 isPET-CT report.Ex.C11 is also histopathology report of PGI doctor, of Om Parkash Jindal, in which it is mentioned that Slides and blocks for review show a tumor. Ex.C11 page 2 is also report of PGI, in which it is mentioned that tumor on the left leg.Exs.C12 is MRI report, in which malignancy soft issue mass with secondary involvement of fibula is mentioned.Ex.C13 is the report of department of histopathology of PGI, Chandigarh, Ex.C14 istreatment record of PGI Chandigarh,Ex.C16 is also record of PGI,Chandigarh,Ex.C18 and C19 are the report of PGI,Chandigarh,Exs.C20 to C64 are the bills, Ex.C65 is the bill of PGI of Rs.34375/-, Ex.C66 is document of PGI and there are also receipts of purchase of medicines,Ex.C97 is the chronic disease certificate of the complainant,Ex.C98 is also certificate of chronic disease,Ex.C99 is patient information of Om Parkash Jindal of PGI. It is entire medical record.

24. On behalf of Insurance company Sh.Parmod Kumar Jain has tendered his affidavit, Ex.OPA and he has deposed as per the written reply. He has also stated that the complainant is not entitled to any amount. Ex.OPC is affidavit of Dr.Ashok Kumar Gupta and he has deposed as per the written statement. Ex.OPD is affidavit of Kuldeep Kaur, Deputy Manager of Insurance company.
25. Ex.OPB is affidavit of Dr.Jaspreet Singh, Walia Hospital, Ex.OP4 is certificate of registration, Ex.OP5 is also certificate, Ex.OP6 is certificate of registration, Ex.OP7 is  insurance cover, Ex.OP8 is receipt of Walia Hospital, Ex.OP9 is report, Ex.OP10 is report, Ex.OP12 is  report of Walia hospital, Ex.OP13 is report of Ashok Clinical Laboratory.
26. By going through the entire record and entire evidence on the file, it is clear that the complainant was retired Lecturer and he felt swelling in the left leg from 25-30 years. In the month of October/2015 the swelling started pain and he went for check up to Walia Hospital and the OP conducted x-rays etc. and on the same day he discharged the complainant after minor operation. It was for biopsy. As per Ex.C3 there was no evidence of malignancy.
27.           Admittedly there is report of PGI, Chandigarh dated 31.12.2015 and the PGI conducted all the tests and they found, in the same sample, that there was tumor in the left leg of the complainant. As per the advice of PGI,  Om Parkash Jindal went for chemotherapy for curing the disease and the complainant got the same for three months. After that the complainant was admitted to PGI in Orthopedic department and the operation was conducted on 22.4.2016 for removing of fibula bone from the left leg of the complainant and fixed PTCS  in the left leg and the complainant remained admitted there from 15.4.2016 to 30.4.2016.The complainant Om Parkash Jindal went under two operations due to negligence act of OP No.2. As per the complainant, if  the OP No.2 gave correct medical report and if OP No.1 got conducted prior medical tests then the problem could have been cured in one operation.
28. Written arguments have also been submitted by OPs No.1&2 that there is no specific, scientific and justified allegations regarding medical negligence against OP No.1 and it is not proved how OP No.1 was negligent in performing the surgery.
29. OP No.1 has only done the surgical procedure for excisional biopsy on 12.10.2015 and it was sent to OP No.2 Ashok Laboratory. As already stated above report of Ashok Laboratory Ex.C3, is on the file and it is clearly mentioned that there was no definite evidence of malignancy seen in the specimen.”
30. Admittedly, the complainant Om Parkash Jindal went to PGI and the Histopathology department of PGI Chandigarh, also examined the same piece which was examined by Ashok Laboratory and found that there was tumor. So it is clear that OP No.2 has negligence in performing his duty and the complainant was not given the correct report that he was suffering from malignancy tumor.
31. In the present case, there is no negligence on the part of OP No.1.Only it is the negligence of OP No.2.
32. Admittedly OP No.2 is insured with United India Insurance Co.,Ltd. The policy of United India Insurance company is attached with  Histopathology report Ex.OP13. It was valid  from 28.10.2014 to 27.10.2015 and the procedure was done on 12.10.2015 and report of Ashok Laboratory is of dated 12.10.2015.So the period is covered under the insurance policy. In the policy it is clearly mentioned that the insured is Dr.Ashok Gupta and indemnity limit was of Rs.5 Lakh.
33. So it is clear that Dr.Ashok Gupta was insured with United India Insurance Company for Rs.5Lakh and Dr.Ashok Gupta was negligent in giving the histopathology report. As already discussed, it was turned over by the most prestigious institute of India i.e. PGI Chandigarh. So OP No.2 Ashok Laboratory was negligent in doing so and there was no negligence on the part of OP No.1. The laboratories should be very careful by giving the biopsy report as it is point of life and death of a person and the person who has given the sample is under the belief that the laboratory will give correct report but in this case Ashok Laboratory was negligent and is liable to pay compensation. Ashok Laboratory is insured with United India Insurance Co. so this insurance company will indemnify OP No.2.
34. The complainant had demanded the compensation of Rs.10,00,000/-but the legal heirs of the complainant are not entitled to compensation of of Rs.10,00,000/-as this compensation is exorbitant.
35. Hence taking into consideration the arguments advanced by the parties and the authorities cited,  the complaint is partly allowed and the OP No.2 is directed to pay compensation of Rs.2,50,000/- to the legal heirs of Om Parkash Jindal,  in equal shares, which shall be indemnified by OP No.5 United India Insurance Co.ltd., alongwith interest @6% per annum from the date of report Ex.C3 dated 12.10.2015 till realization.

Compliance of the order be made within a period of 45 days from the date of the receipt of the certified copy of this order.

ANNOUNCED

DATED:6.9.2021         

                               Dr.Harman Shergill Sullar            Jasjit Singh Bhinder

                                            Member                                        President