State Consumer Disputes Redressal Commission
Smt. Krishna Majumdar vs Bhattacharjee Pathology Lab. on 31 January, 2012
This appeal is directed against the judgment and order passed by the Ld State Consumer Disputes Redressal Commission West Bengal BHABANI BHAVAN (GROUND FLOOR) 31, BELVEDERE ROAD, ALIPORE KOLKATA 700 027 S.C. CASE NO.FA 395 of 2010 DATE OF FILING:15.07.10 DATE OF FINAL ORDER:31.01.12 APPELLANT/COMPLAINANTS : : Smt. Krishna Majumdar W/o-Sri Pradip Majumdar Netaji Road, P.O. Lamding District-Naogaon, Assam RESPONDENT/OP : 1) Bhattacharjee Pathology Lab. 2) Dr. Pompi Bhattacharjee C/o-Bhattacharjee Pathological Lab. Both 265, Silver Jubilee Road Hospital Chowpathy P.O. & Dist. Cooch Behar BEFORE : HONBLE JUSTICE : Sri Kalidas Mukherjee, President. MEMBER : Smt. S. Majumder. MEMBER : Sri S. Coari. FOR THE APPELLANT/PETITIONER : Mr. Pinaki Roy Ld. Advocate FOR THE RESPONDENT/OP : Mr. Aloke Mukhopadhyay Ld. Advocate Ms. Suman Sehanabis Ld. Advocate : O R D E R :
No.8/31.01.12 HONBLE JUSTICE SRI KALIDAS MUKHERJEE, PRESIDENT This appeal is directed against the judgment and order passed by the Ld. District Forum, Cooch Behar in case no.DF 31 of 2008 thereby dismissing the complaint claiming compensation on the ground of medical negligence.
2The case of the appellant/complainant, in short, is that in the month of May, 2006 the appellant had been suffering from some gynecological problems. She consulted Dr. Kamalesh Sarkar on 31.05.06 and the doctor prescribed some medicines and advised her for removal of uterus. Thereafter on 01.06.06 the doctor advised her for histo-pathological examination and, accordingly, the opposite party had taken endometrial tissue on 01.06.06. The histo-pathological report was given by OP No.1 and 2 on 08.06.06 which showed that there was endometrial carcinoma. The slide was also handed over to her.
On seeing the report the doctor advised her to consult a surgeon and further opined that it would be better to go for a centre of higher standard. The appellant is a house wife of middle class family having her children. Ultimately, with great deal of hardship the appellant arranged for money and had gone to Mumbai Tata Memorial Centre. She got herself admitted in Tata Memorial Hospital on 08.07.06 and after examination the doctor advised for re-examination of the slide given by the O.P.s and on 10.07.06 a further examination was done there and it was found that there was no sign of malignancy in the slide.
The doctors of Tata Memorial Hospital advised for histo-pathological examination and accordingly fresh sample was taken on 14.07.06 and the report was given on 15.07.06 which disclosed that there was no malignant growth. It has further been alleged that at the time of first admission at Tata Memorial Hospital the report of the O.P.s was submitted there and the doctors were in a dilemma how could such a misleading and wrong report was given. The doctors further opined that the report of the O.P.s was wrong, and as such, they took further sample for histo-pathological examination. The doctors of Tata Memorial Hospital advised the appellant to come after three months.
The appellant again went to Mumbai and consulted at K.E.M. Hospital run by Municipal Corporation of Greater Mumbai on 20.07.06 and ultimately on 24.07.06 total abdominal hysterectomy was done and the uterus was removed and sent for histo-pathological examination. After histo-pathological examination of entire uterus the Department of Pathology of the said hospital handed over the report dt.29.07.06 wherein it was opined that examination showed no sign of endometrial carcinoma.
The petitioner was discharged from the said hospital on 31.07.06.
It has been alleged that due to the wrong report of the O.P.s about the presence of endometrial carcinoma, the petitioner along with members of her family had to suffer mental agony and bear huge expenses at Mumbai.
It is alleged that the report of the O.P.s was wrong and there was deficiency in service showing their negligence. The complainant has claimed compensation of Rs.2 lakh for the total costs and expenses, Rs. 1 lakh for the loss of organ; Rs.50,000/- as compensation for mental pain, agony and harassment and Rs.50,000/- for the litigation cost.
3The Ld. District Forum dismissed the complaint holding that there was no reasonable explanation in the complaint as to why the appellant underwent operation for removal of uterus when there was no carcinoma. It has further been observed that there was no such note in writing by the doctors of Tata Memorial Hospital that the early report of the O.P.s was wrong. It was held that there was no evidence of expert to prove that the report of the O.P.s was wrong.
The Ld. Counsel appearing for the appellant submits that the report given by the O.P.s regarding the presence of endometrial carcinoma was wrong, in as much as, subsequent reports clearly showed that there was no sign of malignancy or endometrial carcinoma. It is contended that the expert opinion under the facts of the instant case is not required. It is submitted that the medical negligence is clear and because of the wrong report of the O.P.s the appellant suffered mental agony with huge expenses. The Ld. Counsel has referred to the decisions reported in I (2009) CPJ 62 (NC) [N. Lakshminarasimhaiah & Ors. Versus Medical Administrator, Ravi Kirloskar Memorial Hospital & Research Centre & Ors.], I (2009) CPJ 56 (NC) [Shri Manjunatha Pathology Laboratory & Anr. versus Meenakshi].
The Ld. Counsel appearing for the respondents submits that in the complaint there is no mention as to what was the wrong on the part of O.P.s. It is submitted that there is no expert evidence from the side of the appellant as to why the report was said to be wrong. It is contended that the appellant had undergone an operation of uterus and the reason thereof has not been disclosed by the appellant.
It is submitted that 100% perfection cannot be claimed in respect of a pathological examination, in as much as, it depends on various factors. It is submitted that the two reports may not be the same, but that does not prove that the earlier report was wrong. It is submitted that the subsequent papers filed by the appellant should have been examined by an expert. The Ld. Counsel has referred to the decisions in the case of Jacob Mathews (2005) 6 SCC 1 and Martin Dsouza (2009) 3 SCC 1.
In the case of V. Kishan Rao versus Nikhil Superspeciality Hospital & Anr. reported in (2010) 3 WBLR (SC) 470 it has been held by the Honble Apex Court that a Forum is not bound in every case to seek the opinion of an expert witness. It has further been held that a Forum is required to come to a conclusion that the case is complicated enough to require opinion of an expert. In the aforesaid case both the decisions in the case of Jacob Mathews versus State of Pubjab & Anr. (2005) 6 SCC 1 and Martin F. Dsouza versus Mohd.
Ishfaq (2009) 3 SCC 1 were considered.
In the case of N. Lakshminarasimhaiah & Ors.(supra) there was biopsy report showing lump growth as non-cancerous. But the condition of the patient 4 deteriorated and complainant approached another hospital where cancer of grade-III was diagnosed. It was held that wrong diagnosis was not to be treated as error of judgment but it showed a case of medical negligence.
In the case of Shri Manjunatha Pathology Laboratory & Anr. (supra) there was wrong blood report showing HIV positive, but another report from a different hospital showed that the patient was HIV negative. No advice was given for the second check. Compensation was awarded by the State Commission which was upheld by the Honble National Commission.
In the instant case the O.P. No.2 upon examination of the specimen taken gave the finding as endometrial carcinoma. The sample was taken on 01.06.06 and report was given on 09.06.06.
Thereafter the appellant went to Tata Memorial Hospital at Mumbai and the report dt.12.07.06 showed that there was no evidence of malignancy. Thereafter the appellant had undergone hysterectomy with bilateral salpingo ophorectomy operation for removal of uterus at K.E.M. Hospital under Municipal Corporation of Greater Mumbai. The treatment sheet dt.31.07.06 showed that there was no endometrial carcinoma. From materials on record it is clear that the first histo-pathological examination of O.P. No.2 shows endometrial carcinoma. The subsequent report clearly revealed that there was no malignancy or endometrial carcinoma. For a different ailment the appellant had undergone hysterectomy with bilateral salpingo ophorectomy.
Under such circumstances it is clear that the first report was not correct on the face of it. It is a fit case where the doctrine of Res ipsa loquitur is applicable.At Mumbai a fresh sample was taken and no malignancy was found. Since the report of O.P. No.2 was not correct for that reason the appellant had to suffer severe mental agony with huge expenses at Mumbai. On the basis of the first report the doctor of the appellant advised her to go to the higher hospital and, as such, the appellant rushed to Mumbai. The incorrect report of O.P. No.2 is sufficient to show medical negligence. Under such circumstances of the case, relying on the decision in the case of V. Kishan Rao versus Nikhil Superspeciality Hospital & Anr, we are of the view that expert evidence in such a case is not required. Having heard the submissions of the Ld. Counsel appearing for the parties and upon consideration of materials on record we find that the appellant is entitled to get compensation of Rs.75,000/- and the litigation cost of Rs.25,000/-. The Ld. District Forum was not justified in dismissing the complaint. We, therefore, set aside the impugned judgment and order.
The appeal is allowed in part. The complaint is allowed in part. The O.P.s are directed to pay Rs. One lac ( Rs.75,000 + Rs.25,000) within 45 days from this date failing which the amount will carry interest at the rate of 10% per annum till realization.
MEMBER(SC) MEMBER(L) PRESIDENT