National Consumer Disputes Redressal
Dr. Raj Krishna Sharma & Anr. vs Chandra Bhushan Mishra & 3 Ors. on 9 July, 2020
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 1650 OF 2017 (Against the Order dated 12/05/2017 in Complaint No. 33/2013 of the State Commission Chhattisgarh) 1. CHANDRA BHUSHAN MISHRA & 2 ORS. S/O. SHRI. NARAYAN PRASAD MISHRA. R/O. NURSINGH MANDIR, KOSTA PARA PALACE ROAD, RAIGARH. CHATTISGARH-496001 2. . . . . 3. UTKARSH MISHRA. S/O. CHANDRA BHUSHAN MISHRA. REPRESENTED BY THEIR FATHER PRESENT ADDRESS FOR THEIR CORRESPONDENCE. R/O. NURSINGH MANDIR, KOSTA PARA PALACE ROAD. RAIGARH-496001 CHATTISGARH. 4. ADARSH MISHRA. S/O. CHANDRA BHUSHAN MISHRA. REPRESENTED BY THEIR FATHER PRESENT ADDRESS FOR THEIR CORRESPONDENCE. R/O. NURSINGH MANDIR, KOSTA PARA PALACE ROAD. RAIGARH-496001 CHATTISGARH. ...........Appellant(s) Versus 1. DR. RAJ KRISHNA SHARMA & 2 ORS. METRO HOSPITAL AND DIABETES RESEARCH CENTRE, NEAR PAHAD MANDIR, CHAKRADHAR NAGAR ROAD, RAIGARH. CHATTISGARH-496001 2. DIRECTOR, METRO HOSPITAL AND DIABETES RESEARCH CENTRE. NEAR PAHAD MANDIR, CHAKRADHAR NAGAR ROAD. RAIGARH-496001 CHATTISGARH. 3. . . . . 4. DR. AJAY SESHA. S/O. DR. ANIL SESHA.RENUKA DIAGNOSTICS AND PATHOLOGY, POWER HOUSE ROAD, NEAR ABHINANDAN COMPLEX. KORBA-495678 CHATTISGARH. ...........Respondent(s) FIRST APPEAL NO. 1856 OF 2017 (Against the Order dated 12/05/2017 in Complaint No. 33/2013 of the State Commission Chhattisgarh) 1. DR. RAJ KRISHNA SHARMA & ANR. METRO HOSPITAL AND DIABETIES RESEARCH CENTRE, NEAR PAHAR TEMPLE, CHAKRADHAR NAGAR. RAIGARH(CHH.)-496001 2. METRO HOSPITAL AND DIABETIES RESEARCH CENTRE. C/O. DIRECTOR MANAGER.METRO HOSPITAL AND DIABETIES RESEARCH CENTRE, NEAR PAHAR TEMPLE, CHAKRADHAR NAGAR. RAIGARH (CHH.)-496001 ...........Appellant(s) Versus 1. CHANDRA BHUSHAN MISHRA & 3 ORS. S/O. SH. NARAYAN PRASAD MISHRA.
R/O. SURSINGH MANDIR, KOSTA PARA PALACE ROAD, TEHSIL AND DISTRICT. RAIGARH(CHH.) 2. MASTER UTKARSH MISHRA (MINOR) S/O. CHANDRA BHUSHAN MISHRA.
R/O. NIRSINGH MANDIR, KOSTA PARA, PALACE ROAD. RAIGARH. CHATTISGARH. 3. MASTER ADARSH MISHRA(MINOR) S/O. CHANDRA BHUSHAN MISHRA.
R/O. NIRSINGH MANDIR, KOSTA PARA, PALACE ROAD. RAIGARH CHATTISGARH. 4. DR. AJAY SHESH (M.D.) S/O. DR. ANIL SHESH.
R/O. RENUKA DIAGNOSTICS PATHOLOGY, POWER HOUSE ROAD, NEAR ABHINANDAN COMPLEX. KORBA-495678 CHATTISGARH. ...........Respondent(s) BEFORE: HON'BLE MR. PREM NARAIN,PRESIDING MEMBER HON'BLE MR. C. VISWANATH,MEMBER For the Appellant : For the Respondent :
Dated : 09 Jul 2020 ORDER FA/1650/2017 For the Appellants : Mr. Mukesh Sharma For Respondents 1 & 2 : Mr. J.P. Mishra, Advocate with Dr. Raj Krishna Sharma- In Person For Respondent No.3 : Ex-Parte FA/1856/2017 For the Appellants : Mr. J.P. Mishra, Advocate with Dr. Raj Krishna Sharma- In Person For Respondents 1 to 3 : Mr. Mukesh Sharma, Advocate For Respondent No.4 : Ex-Parte
1. The present cross Appeals are filed by the Appellants under Section-19 of the Consumer Protection Act, 1986 against Order passed by the Chhattishgarh State Consumer Disputes Redressal Commission, Raipur (hereinafter referred to as the "State Commission") in Complaint No.33/2013 dated 12.05.2017. First Appeal No.1650/2017 has been filed by the Complainants/Appellants with a delay of 5 days and First Appeal No.1856/2017 has been filed by the Opposite Parties with a delay of 89 days. For the reasons stated in both the applications and in the interest of justice, delay condoned.
2. Complainants are legal heirs of the deceased Smt. Shubhlaxmi, who died on 13.10.2012. On complaining of pain in the stomach, Gynaecologist Dr. Suchitra Tripathi advised Sonography on 06.02.2011. Sonography was conducted at Vidya Sonography Clinic, Raigarh where her medical condition was diagnosed as twisted ovarian cyst. The Gynaecologist further advised to consult Radiologist Dr. Alok Kediya, who after conducting ultrasonography found solid cystic lesion (11.5 cm x 8.4 cm) in the pelvis? Etiology and advised FNAC. Thereafter, Complainant No.1 took his wife to Opposite Party No.1 Dr. Raj Krishna Sharma of the Metro Hospital, Raigarh on 09.02.2011, who got the patient admitted and excised the cyst and sent it to Opposite Party No.3 for biopsy. The patient was discharged from Opposite Party No.2 Hospital on 13.02.2011. For further complaint of pain in the stomach, the patient was prescribed medicines. According to the Complainants, Opposite Parties 1 & 2 told them that the specimen was sent to Mumbai and there was no abnormality in the histopathology report. Thereafter, in the month of July, 2011, the patient got pregnant. They were again advised by the Gynaecologist Dr. Suchitra Tripathi to consult Dr. Kedia. Dr. Kedia advised FNAC/biopsy of the lesion & MRI of the abdomen. The Complainants took the patient to Gynaecologist Dr. Veena Panda at Bhubaneswar and on her advice the patient was taken to Kalinga Hospital on 07.12.2011, where she was found to be suffering from Cancer. CA-125 test done on the patient revealed that she was in stage III-IV of Cancer. The patient was later admitted in AIIMS, Delhi for treatment. The Doctors at AIIMS sought to see the documents and slides pertaining to the treatment undergone at Opposite Party No.2 Hospital, but the Opposite Parties did not make them available to the Complainants, despite repeated requests. The patient was administered chemotherapy and the patient ultimately died due to medical negligence of the Opposite Parties. A complaint case was therefore filed before the State Commission with the following prayer: -
"1. That the applicant No.1 was not given the treatment and proper advice for the patient and therefore the disease of the patient was soon spread unnecessarily which could not be treated in the fixed time and following the procedure prescribed.
2. That for no proper advice being given by non-applicant to the patient and applicant No.1 the patient had to conceive pregnancy unnecessarily as a result of which the applicant No.3 had to be born untimely as medical requirement effect of which would have to be borne by him for his whole life, which loss has been assessed by the applicant as Rs.50,00,000/-
3. That as a result of no proper advice by the non-applicant the applicants had to bear the loss of Rs.5,00,000/- as a result of untimely treatment of the patient.
4. That the applicant No.1 could not attend his duty at work place because of untimely treatment of the patient so that he was denied his income and the income acquired by legal advice which has been assessed by the applicant No. as Rs.2,34,190/- only.
5. That the applicants No.2 and 3 will have to remain devoid of Nourishment of their mother so their loss is assessed as Rs.5,00,000/-.
6. That the applicant No.1 has been deprived of the association of his wife for his living. So the loss caused to him is assessed as Rs.1,00,000/-.
7. That the applicant No.1 has been deprived of the association of his wife for his living. So the loss caused to him is assessed as Rs.1,00,000/-. That for the damages of the additional time to be spent by elders of the family for Nourishment of applicant Nos. 2 & 3 it is assessed by the applicants as Rs.5,00,000/-.
8. That as a result of defect in medical services of the patient by non-applicants the applicants have to bear extreme physical, mental and family torture. Loss of which is assessed by the applicants as Rs.5,00,000/-
9. That as a result of the defect in the medical services rendered by non-applicant to applicants the total loss suffered by them is assessed as Rs.73,34,190/-.
... ...
A. That the non-applicant shall make up the loss suffered by the applicants as a result of defect in the medical services provided to the patient by non-applicants.
B. That as per the circumstances of the case, any other proper relief decided by the Hon'ble Commission may be awarded.
C. The applicants may be awarded the cost of present application from the non-applicants."
3. The case was contested by the Opposite Parties by filing their written version. The Opposite Parties 1 & 2 contended that the patient was brought with complaint of stomach pain. As the reports of Radiologist Dr. Jyotsna Mishra and Dr. Alok Kedia were different, Opposite Party No.1 conducted laparoscopic surgery on the patient urgently, as the patient was in no proper condition to undergo FNAC test and there was apprehension of spread of the disease due to FNAC. The patient was operated on 10.02.2011 and cyst removed and sent for examination to Opposite Party No.3. The patient was discharged on 13.02.2011. Opposite Party No.3 did not find any malignancy in the tumour. The documents pertaining to the operation/surgery conducted at Opposite Party No.2 hospital were given to Complainant No.1. Merely because no receipt was taken, Complainant No.1 was harassing them, deliberately seeking the same. The patient was also advised not to get pregnant. Opposite Parties No.1 & 2 were not responsible for the histopathological report and the same could be ascertained from Opposite Party No.3. All proper procedures and treatment were followed and there was no medical negligence whatsoever. If the operation was not to be conducted immediately, there could have been serious damage to the patient. Hence, the Complaint be rejected.
4. Opposite Party No.3 in his written version stated that the material for biopsy was sent by Opposite Party No.2 and the report was again sent back to Opposite Party No.1 & 2. There was no direct transaction between him and the Complainants. He had been wrongly implicated, only with the intention to get compensation from him. There was no medical negligence on his part in treating the patient. Tests were conducted by competent and qualified personnel, following due procedure and the question of fabricating the report did not arise. The Complainants were not entitled to get any relief from him and their claim be rejected.
5. The State Commission after hearing all the parties and perusing a host of documents and relevant record, partly allowed the Complaint and ordered as follows: -
"1. The non-applicant No.1 Dr. Rajkrishna Sharma and Non-applicant No.2 Metro Hospital and Diabetes Research Centre, Raigarh shall pay an amount of Rs.9,00,000/- out of Rs.12,00,000/- to the applicants and the remaining amount of Rs.3,00,000/- shall be paid by Dr. Ajay Shesh (non0applicant No.3) to the applicants.
2. For those amounts the non-applicants held responsible, they shall pay 9% interest per annum on the said amount to the applicants from the date of filing of claim suit, i.e. 25.01.2014 till the date of payment of compensation.
3. The non-applicants shall separately or jointly pay Rs.15000/- to the applicants for the cost of the petition."
6. Aggrieved by the order of the State Commission Complainants have field FA/1650/2017 for enhancement of the compensation awarded by the State Commission. On the other hand, Opposite Parties have filed FA/1856/2017 praying for dismissal of the Complaint.
7. We have heard learned counsel for the parties and carefully gone through the record. Learned Counsel for the Complainants submitted that the compensation awarded by the State Commission was not adequate. It was further submitted that CIMS, Bilaspur raised a doubt whether any surgery was performed by Respondent No.1 for treating the patient. This important aspect had not been discussed by the State Commission in the impugned order, which was necessary for evaluating the compensation to the Complainants. It was further submitted that the State Commission has awarded the compensation based on surmises and conjectures and it had not taken into account the loss of salary of Appellant No.1 who could not attend his job for being held up in treatment of the patient for a quite long period. It was further submitted that Complainant No.3 was in the womb of the patient/deceased while she was suffering from cancer and due to this reason he could not develop properly due to the deteriorating condition of his mother. This aspect should also have been considered for award of compensation. Learned Counsel for the Complainants submitted that the Appeal may be allowed and the Complainants may be awarded compensation as claimed by them in the original Complaint.
8. Learned Counsel for the Opposite Parties 1 and 2 in FA/1856/2017 submitted that initially Complainants did not raise any objection with regard to non-providing of medical record and they filed the Complaint against them only after the patient died, with the intention to claim compensation from them. It was further submitted that the patient was advised not to carry pregnancy for one year. This advice was not followed by the deceased. They were, therefore, not responsible for any medical negligence whatsoever. It was further submitted that cancer tissues were not found in the biopsy report. The observation of the State Commission was wholly misconceived and erroneous. Chhattishgarh Medical Council also did not find any medical negligence on their part. It was prayed that their Appeal should be allowed and the Complaint be dismissed.
9. It is an admitted fact that the deceased was the wife of Complainant No.1 and the mother of Complainants No.2 & 3. On complaining of pain in the stomach, Complainant No.1 took his wife to a Gynaecologist who advised Sonography. Two Radiologists conducted the Sonography test. The first one, Dr. Jyotsna Mishra opined that it was a case of twisted ovarian cyst. On further reference Dr. Alok Kediya diagnosed 11.5 cm x 8.4 cm. solid cystic lesion seen in the pelvis? Etiology and advised FNAC. Complainant No.1 took his wife to Opposite Party No.1 Dr. Raj Krishna Sharma, Metro Hospital, Raigarh on 09.02.2011. The patient was admitted in the Opposite Party No.2 Hospital and right side ovary was said to be removed by Laparoscopy on 10.022011. Biopsy was sent for histopathology report to Opposite Party No.3, Renuka Diagnostic Pathology. The histopathology report records Benign Malignance Cystadenoma Ovary. Thereafter, the patient was discharged from the hospital on 13.02.2011. Complainant No.1 alleged that despite repeated requests the records of the operation as well as the slide of the biopsy were not furnished by the Opposite Parties. Meanwhile, the patient got pregnant and after consultation at Raigarh, she was taken to Kalinga Hospital on 07.12.2011 where she was diagnosed with cancer. The patient was later shifted to AIIMS, New Delhi where she was administered chemotherapy. She delivered a male child on 07.03.2012. She ultimately died on 13.10.2012.
10. Opposite Party No.1 could have conducted certain tests as prescribed by the Radiologist like FNAC but instead straight went in for Laparoscopic Surgery and removal of ovarian mass (twisted cystic lesion on the right side.) The Complainants alleged that the documents of the surgery done alongwith the histopathology report and slides were not made available to them. Future medical consultations did not have the benefit of knowing the details of the operation and the correctness of diagnosis. Opposite Parties 1 & 2 stated that ovary of the patient was removed. During the pendency of the case, State Commission sought expert opinion from the Chhattishgarh Institute of Medical Science, Bilaspur which, vide letter dated 14.03.2016, submitted their report and opined as follows: -"
"In the operation notes Metro Hospital & Diabetes Research Centre, Raigarh Laparoscopic surgery report dated 10.02.2011 it has been noted accordingly left Oophorectomy was carried out, where as in discharge card procedure for 'Twisted ovarian cyst, right side is mentioned. The procedural notes of AIIMS dated 07.03.2012 have described that both ovaries are H (Healthy), which shows contradiction in description. It is to be noted that, in the histopathology report AIIMS immature mix germs cell tumour of right ovary was found.
11. Complainants alleged that the documents pertaining to the operation and surgery and the slides of the biopsy were not provided to them, despite repeated requests. Opposite Parties 1 & 2, however, flatly denied the allegation. The contention of the Opposite Parties, however, is not backed by any proof. No evidence has been provided showing the receipt of these documents and slides by the Complainants as no acknowledgement has been placed by the Opposite Parties. Having failed in their duty to provide the necessary documents and slides, Opposite Parties 1 & 2 tried to shift the responsibility on Opposite Party No.3. The Complainants were asked to contact Opposite Party No.3 to obtain histopathological report and the slides. Opposite Party No.3 on his part washed off his hands on the pretext that the histopathological report had already been sent to Opposite Party No.1 and the slides had been destroyed. No evidence has been placed on record to show that the slides were given to the Complainants. All the three Opposite Parties in effect denied the necessary documents and operation and treatment record, histopathological report and biopsy slides to the Complainants while their role and responsibility in the initial treatment comes under cloud. Even if it is presumed that the documents and slides were given to the Complainants, there was no harm in providing another set of the same more, so when demanded by several Doctors and medical institutions, as the case was getting more and more serious and the patient was suffering from terminal ailment. Even the inquiry report of Chhattishgarh Medical Council, Raipur submitted by the Opposite Parties in their defence had not gone into details and had merely tried to exonerate the Opposite Parties and routinely closed the case. In T. Rama Rao vs. Vijay Hospital & Anr. (FA/169/1997) decided on 29.11.2007, this Commission held that "if any request is made for medical records either by the patients/authorised attendant or legal authorities involved, the same may be duly acknowledged and documents shall be issued within the period of 72 hours. If father of the patient demanded documents and they were not delivered, it would amount to deviation from expected professional conduct and ethics amounting to deficiency in service." As seen from the discharge summary issued by Opposite Party No.2, the status is recorded as improved while no follow up had been recommended. When there were different opinions given by Radiologists and tests prescribed by them were not followed and third invasive procedure was adopted, a duty was cast on the Opposite Parties 1 & 2 to be more careful in dealing with case and periodically follow up with the patient rather than simply discharging and sending away the patient. Even if the biopsy report were to be Benign tumour, there were chances of tumours turning malignant later and it certainly demands any Institution/Doctor who conducts surgery to review the patient's status after a reasonable period of time. Opposite Parties 1 & 2 contended that they had advised the patient to avoid pregnancy, which is denied by the Complainants. If the tumour was not malignant, we see no reason why it was advised to avoid pregnancy? No evidence has been produced by Opposite Parties 1 & 2 regarding the advice on pregnancy. If Opposite Parties 1 & 2 had some doubts about the condition of the patient and therefore had recommended the patient to avoid pregnancy, it was all the more necessary for them to have properly advised the patient and recorded the same in the discharge summary. By not properly advising the patient and recording the same, unfortunately the deceased got pregnant and by time she reached higher medical institutions, there was no option but to continue the pregnancy alongwith treatment for cancer. The patient later died leaving a small child behind. Nothing can be more pathetic than this. The State Commission also held as follows: -
" Upon perusal of the aforesaid documents, it is clear that the operation of ovary alleged to have been carried out by the non-applicant No.1 is wholly erroneous, whereas it is clear that the both ovary of the deceased Smt. Shubhalaxmi Mishra were found to be operated at the AIIMS (All India Institute of Medical Sciences) and All India Institute of Medical Sciences demanded clinical histopathology details and previous histopathology records of late Smt. Shubhalaxmi Mishra based on which complainant No.1 forwarded application to opposite parties but opposite parties did not provide said documents which certainly constitute deficiency in service and medical negligence and opposite party No.1 did not carry out necessary test such as the cancer marker test, FNAC biopsy and CA 125 blood test nor he sent slide for biopsy in the proper pathology lab, accordingly the non-applicant No.3 has failed to preserve slides constituting deficiency in services. Accordingly, complainants have proved their case that opposite parties were negligent in carrying out treatment of deceased Subhalaxmi Mishra which amounts to medical negligence. It is therefore clear that the non-applicants were negligent in providing medical services, therefore complainants are entitled for compensation from opposite parties."
12. Regarding the compensation to be provided to the Complainants for the loss and mental agony suffered due to deficiency in service of the Opposite Parties, the State Commission has taken into consideration the expenses incurred by the Complainants as well as other circumstances and arrived at a figure of Rs.12 lakhs as consolidated amount. This has been duly apportioned between the Opposite Parties alongwith adequate interest. The Complainants have been duly compensated for the loss and mental agony suffered by them and we see no reason to interfere with the assessment made by the State Commission.
13. In view of the above, we are of the opinion that the impugned order passed by the State Commission was justified. Appellants/Complainants as well as Opposite Parties failed to point any illegality or irregularity in the order passed by the State Commission, warranting interference in exercise of Appellant jurisdiction under Section 19 of the Consumer Protection Act, 1986. Both the Appeals are accordingly dismissed with no order as to cost.
...................... PREM NARAIN PRESIDING MEMBER ...................... C. VISWANATH MEMBER