State Consumer Disputes Redressal Commission
Sri Dipak Ranjan Sen, Md, Peak Chemical ... vs Md And Directors Of Suraksha Diagnostic ... on 28 March, 2012
State Consumer Disputes Redressal Commission State Consumer Disputes Redressal Commission West Bengal BHABANI BHAVAN (GROUND FLOOR) 31, BELVEDERE ROAD, ALIPORE KOLKATA 700 027 CASE NO.SC/72/O/2001 DATE OF FILING:31/08/01 DATE OF FINAL ORDER:28/03/12 APPELLANT/COMPLAINANT : : Sri Dipak Ranjan Sen Managing Director Peak Chemical Industries Ltd. Sevoke Road, 2nd Mile, Siliguri Dist.Jalpaiguri, PIN-734 401 RESPONDENTS/OPS : 1) Managing Director and Directors of Suraksha Diagnostic & Eye Research Pvt. Ltd. P-118, CIT Road Scheme VIM Calcutta-700 054 2) Directors of Suraksha Diagnostic & Eye Research Pvt. Ltd. Udham Singh Sarani Ashram Para ( Opp. LIC Building) Sevoke Road, Siliguri-734 401 3) Dr. K. K. Bhattacharjee Chief Pathologist Suraksha Diagnostic & Eye Research Pvt. Ltd. P-118, CIT Road Scheme VIM Calcutta-700 054 BEFORE : HONBLE JUSTICE : Sri Kalidas Mukherjee, President. HONBLE MEMBER : Smt. S. Majumder. HONBLE MEMBER : Sri S. Coari. FOR THE APPELLANT/COMPLAINANT: Mr. P.R. Sinha Sarkar Ld. Advocate FOR THE RESPONDENT/OP : Mr. A. K. Mukherjee Ld. Advocate : O R D E R :
HONBLE JUSTICE SRI KALIDAS MUKHERJEE, PRESIDENT This is a complaint case bearing no.SC/72/O/2001 filed by the complainant praying for compensation of Rs.19,78,560/- on the ground of medical negligence.
The case of the complainant, in short, is that he is the Managing Director of Peak Chemical Industries Ltd. He was suffering from abdominal pain on 21.04.01 and got admitted at Siliguri Nursing Home. He was under the treatment of Dr. Shekhar Chakraborty, MD from 22.04.01 to 29.04.01. As per the opinion of consultant Radiologist and Sonologist he was suffering from Distended Gall Bladder with multiple Cholecystitis. On 26.05.01 the complainant consulted Dr. Santanu Kar, FRCS at North Bengal Clinic (P) Ltd. at Pradhan Nagar, Siliguri. He also diagnosed that it was a case of Cholecystitis and advised further management. In the first week of June, 2001 the complainant consulted Dr. R. K. Agarwal, Surgeon at Sunrise Nursing Home (P) Ltd. for Laparascopy Surgery by Dr. Surendra Ugale, MS. The said operation was conducted on 20.06.01 by Dr. Ugale, Dr. Agarwal and others and the gall bladder stone including the gall bladder were removed. The container containing the specimen of gall bladder was given to Suraksha Diagnostic and Eye Research (P) Ltd., for necessary histopathological test on 21.06.01. On 10.07.01 at 6.30 p.m. the report was received by the complainant which disclosed that it was a case of adenocarcinoma. On 11.07.01 the complainant went to Suraksha Diagnostic Centre, Siliguri and requested them to hand over the wax block and the specimen of the gall bladder for further review. Sri Anshuman Ray of Siliguri Suraksha Diagnostic Centre reported that the wax block and specimen were in their head office at Calcutta and the complainant requested them to send e-mail to their head office for sending the same to Siliguri.
Accordingly, Sri Anshuman Ray of Suraksha Diagnostic Centre had sent the e-mail to their head office on 11.07.01 in presence of the complainant. It has been alleged in the complaint that the wax block and the specimen of gall bladder could not be made available till 16.07.01 upto 1 p.m. The complainant in the meantime on 12.07.01 consulted Dr. Atanu Bhattacharya, MD, Senior Consultant, Oncologist, Siliguri and he advised the complainant to consult Dr. G. Kilara, Chief Oncologist at St. Johns Medical College Campus, Bangalore. On 15.07.01 the complainant consulted Dr. Agarwal and he also referred him to Oncologist for further management. On 16.07.01 the complainant went to Bangalore and consulted Dr. Kilara. On 20.07.01 vide Lab.
No.89/01 Dr. Gharpure gave a report with the advice to check if the slides were correct and further advised that the specimen of gall bladder might be submitted for examination. On 20.07.01 the complainant had a telephonic conversation from Bangalore with OP no.3, Dr. K. K. Bhattacharjee and requested him to trace out the gall bladder specimen and the wax block for further review. On 24.07.01 the complainant came back to Calcutta and on 25.07.01 OP no.3 handed over the report with four numbers of slides, four numbers of wax blocks and the original specimen of gall bladder along with the revised report. Thereafter on reaching Siliguri the complainant sent the specimen of gall bladder, slides, wax block to Dr. Gharpure at Bangalore through courier service on 30.07.01. On 10.08.01 the complainant received the report of Dr. Gharpure. Dr. Gharpure opined that there was no malignancy and the slides did not belong to the patient. It has been alleged in the complaint that the entire family of the complainant suffered severe mental agony and shock. Under such circumstances, the complaint was filed claiming compensation of Rs.19,78,560/-.
The OP no.1 and 2 have jointly filed a written version contending, inter alia, that the samples/specimens of gall bladder were collected by the Siliguri Branch of OP no.2 in a container from the complainant. The histopathological test was conducted by OP no.3 and the report was given by him on 04.07.01. The OPs conducted the test on the samples/specimens and had given a report on a clear understanding that the samples belonged to the complainant and there arose no occasion to doubt about the genuineness of the said samples.
On 25.07.01 a further report was prepared. There was no difference in the reports given by OP no.3. The explanation given in the said report makes it clear that there is no difference between the two reports, but the second report only clarifies the position. The report dated 25.07.01 was given to the complainant. The report dated 10.07.01 indicated that there was presence of carcinoma.
In the second report the OP no.1 and 2 clarified that out of the two sections of the specimen, the picture of carcinoma was unmistakably shown but on scrutiny it revealed some anomalies which did not fit in with typical gall bladder carcinoma. It has been stated that the allegation of negligence on the part of OP no.1 and 2 was totally unfounded and baseless.
OP no.3 has filed a separate written version, contending, inter alia, that the samples/specimens were collected and sent from the branch of OP no.2 to OP no.1 for the purpose of testing under proper identification. After receiving of the specimens/samples the OP no.3 examined the specimens/samples and the report dated 04.07.01 was sent. The OP no.3 conducted the test on a clear understanding that the specimens/samples belonged to the complainant and there arose no occasion to doubt as to the genuineness of the specimens/samples. Thereafter on 12.07.01 on receiving a telephonic request from the complainant the OP no.3 traced out the container in which the portion of specimens/samples of gall bladder of complainant were kept. Having realized some anomalies might have been there in the report, the OP no.3 preferred to carry out further test and prepared a report on 25.07.01. Having noticed that no cancerous growth was there in the tissue, the OPno.3 immediately tried to contact the complainant to inform but his attempt proved to be futile as there was nobody in the family of the respondent at Siliguri. The complainant thereafter came to Kolkata and OP no.3 gave him all the materials as asked for. It has been stated in the written version that the case has been filed with the intent to put undue pressure upon the OPs to extort money and purposely fabricated a concocted story without any valid reason.
The Learned Counsel appearing for the complainant submits that the first report given by OP no.3 clearly indicates that it was a case of Carcinoma and in the second report given by the same doctor it was opined that it did not fit in with carcinoma. It is contended that when the complainant asked for the wax block and specimens of gall bladder the same were not traceable and thereafter the OP no.3 conducted fresh test and delivered a second report which was contradictory to the earlier one. It is submitted that the report of Dr. Gharpure shows that there was no malignancy.
The Learned Counsel has referred to the decision reported in I (2011) CPJ 206 [Vijay R. Bhosale (Dr.) versus Ramchandra Vasant Bhoi & Anr.]; (2004) 5 S.C.C. 65 [Ghaziabad Development Authority versus Balbir Singh] The Learned Counsel for the OPs, on the other hand, submits that the second report has elaborately made a clarification and the report of Dr. Gharpure cannot be relied upon as there is no evidence of Dr. Gharpure and he was not subjected to cross examination. It is submitted that there is no case of medical negligence and the complaint should be dismissed. The Learned Counsel has referred to the decisions reported in (1995) (1) 835 [Rahul Sinha & Ors. versus Dr. Ashok Mitra & Ors.]; (1994) (2) CPR 317 [Vasudev Shankar Rao Bedekar & Ors. versus Dr. (Ms) S. C. Pandya & Ors.]; II (1991) CPR 142 [Commercial Officer, Office of Telecom, Patna versus Bihar State Warehousing Corporation]; 2001 (I) CPR 503 [Regional Manager versus M/s Sneh Motors]; 1997(3) CPR 380 [Satya Prakash Sood versus National Insurance Co. Ltd. & Another].
We have heard the submission made by the Learned Counsel appearing for the parties. It is in evidence that after the first report was obtained and finding that it was a case of carcinoma, the complainant under the advice of other medical experts had been to Bangalore for review of the matter. It is also in evidence that from Bangalore the complainant during telephonic conversation with OP no.3, requested him to arrange for the wax block and specimen of gall bladder for the purpose of review. Thereafter the complainant came back to Calcutta and obtained the required specimen and wax block together with the revised report of OP no.3. It is the case of the complainant that thereafter the said materials were sent to Dr. Gharpure who gave the report that there was no malignancy.
Under such circumstances, it is the contention of the complainant that the first report was wrong because it was contradictated by the second revised report given by the same doctor. It is the further contention of the complainant that there was much delay in handing over the required specimen of gall bladder with the wax block which resulted in harassment and mental suffering of the complainant.
We have perused the evidence on record. It appears that the samples were sent to Dr. Gharpure at Bangalore by courier and thereafter the report was sent.
The report of Dr. Gharpure shows that there was no malignancy and slides of melanoma did not seem to belong to the patient. As regards the report of Dr. Gharpure it is the contention of the Learned Counsel for the respondents that the report of Dr. Gharpure cannot be relied upon in absence of any evidence of Dr. Gharpure. In this connection, reference has been made to the decision reported in 1997 (3) CPR 380 (Supra) wherein it has been held that unless an expert is subjected to the test of examination or cross examination in court, the evidence cannot be considered as authentic and cannot be relied upon and cannot form the basis of finding. It is true that when the evidence of the concerned doctor, that is, OP no.3 was adduced, the report of Dr. Gharpure on mere production of it, cannot be relied upon. The evidence of Dr. Gharpure was not adduced. Moreover the report of Dr. Gharpure shows that it did not belong to the patient. Under such circumstances, the report of Dr. Gharpure relegates to insignificance.
Now, comes the question whether or not there was any deficiency in service or wrong in the nature of medical negligence. In view of the two reports submitted by OP no.3 it is in evidence that the sample was given by the complainant to OP no.1 for histopathological examination. The said specimen was examined by OP no.3. The first report of OP no.3 runs as follows:- Section from the gall bladder shows picture of mucin-secreting adenocarcinoma infiltrating the gall bladder associated with cholecystitis. This report clearly shows that there was presence of carcinoma in the gall bladder.
Now it transpires from the evidence of the complainant as well as evidence of OP no.3 that the complainant made a telephonic call to the OP no.3 from Bangalore and asked for the wax blocks and the specimen of gall bladder for the purpose of review. In the written version filed by OP no.3 at paragraph 3(g) and h(i) it has been stated that the OP no.3 received a phone call from the complainant asking for the left out portion of original specimen of gall bladder. It has further been stated that having realized some anomalies might have been there in the report, the OP no.3 preferred to carry out the following steps:-
(i) to prepare fresh thinner sections from the paraffin blocks of tissue;
(ii) to prepare fresh section from the original specimen of left out tissue of gall bladder preserved in laboratory.
It is, therefore, clear that having received a phone call from the complainant whereby the complainant asked the OP no.3 to arrange for the part of the gall bladder, the OP no.3 of his own motion proceeded to re-examine the specimen having realized that some anomalies might have been there in the report. In the report dated 25.07.01 the OP no.3 opined as follows:-
On the basis of the test conducted, the OP no.3 prepared a report on 25.07.01 which indicates as follows:-
Of the two sections while one showed features suggestive of chronic cholecystitis, the other one however, showed unmistakable picture of carcinoma. The latter section on strict scrutiny revealed some anomalies which do not fit in with typical gall bladder carcinoma.
With a view to resolving the aforesaid discrepancy a thorough search was undertaken to find out the vial which may have contained portions of left out tissues of original specimen.
Ultimately, the left out portions of tissue of the original specimen preserved in the laboratory could be located and these bits of tissue were picked up for fresh paraffin blocking and the sections obtained there from were reviewed once again on the basis of which a revised report is submitted which reads as follows:-
The sections show focal changes of acute cholocystitis superimposed on chronic cholecystitis.
With fibrosis of wall-although a few small clumps of cells could be discerned amid the inflammatory infiltrate pervading the gall bladder wall these appeared to be inflammatory cells and not neoplastic carcinoma cells.
The second revised report of OP no.3 shows that some anomalies were found which after scrutiny showed that those were inflammatory cells and not carcinoma cells. There is, therefore, no doubt that as per second report there was no trace of carcinoma.
In the case of Vishan Rao versus Nikhil Super Speciality Hospital & Another reported in (2010) 3 WBLR (SC) 470 it has been held by the Honble Apex Court that it is not obligatory in each and every case to seek the opinion of an expert witness.
In the instant case we are of the considered view that the doctrine of Res Ipsa Loquitur, under such circumstances, is squarely applicable. Evidently, therefore, the second report is contrary to the first one. It unequivocally shows that it was a wrong in the field of medical negligence. Needless to say that much depends on the diagnosis. Such wrong diagnosis, therefore, indicates deficiency in service for which OP no.1, 2 and 3 are jointly and severally responsible.
Now comes the question as to the awarding of compensation. In the case of Commercial Officer, Office of the Telecom, District Manager, Patna versus Bihar State Warehousing Corporation (Supra), the Honble National Commission has observed in paragraph 4 as follows:- The compensation to be awarded has to be quantified on a rational basis on a consideration of materials produced before the adjudicating forum showing the extent of injury suffered and the manner in which and the extent to which monetary loss has been caused thereby to the complainant .. The contention of the complainant as made in paragraph 27 of the complaint is that had the complainant started chemotherapy then it would have been a dangerous and disastrous situation and it could have caused irreparable loss and damage. This contention of the complainant as made in paragraph 27, by itself, cannot form the basis of the compensation as claimed.
But having regard to the tremendous mental agony and sufferings and the costs incurred by him due to travelling by air from Siliguri to Bangalore and back, we are of the considered view that it would meet the ends of justice if the sum of Rs.1,50,000/- is awarded in favour of the complainant.
Having heard the Learned Counsel appearing for the parties and on perusal of the materials on record we allow the complaint in part. The OP no.1, 2 and 3 jointly and severally are directed to pay compensation of Rs.1,50,000/- to the complainant within 45 days from the date of passing this order failing which it would carry interest @ 9% per annum till realization. The OPs are also directed to pay the sum of Rs.5,000/- as cost of litigation.
MEMBER(SC) MEMBER(L) PRESIDENT