State Consumer Disputes Redressal Commission
Nijjar Lab vs Smt. Shahin on 6 September, 2012
1
First Appeal No. 172 of 2007
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB,
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH
First Appeal No. 172 of 2007
Date of institution : 05.02.2007
Date of Decision : 06.09.2012
1. Nijjar Lab & Diagonstic Centre at 51/1, Court Road,
Opposite Church, near GPO, Amritsar, through its partner.
2. Nijjar Jerath Endoscopy Centre at 51/1, Court Road,
opposite church, near GPO, Amritsar, through its partner.
3. Dr. Inder Bir Singh Nijjar, M.D.(Radiodiagnostic), C/o Nijjar
Jerath endoscopy Centre At 51/1, Court Road, opposite
Church, Near GPO, Amritsar.
4. Dr. Amitabh Mohan Jerath, M.D., F.G.I.E.
(Gastroenterology), C/o Nijjar Jerath Endoscopy Centre at
51/1, Court Road, Opposite Church, near GPO, Amritsar.
5. Dr. Karamjit Singh Gill, M.D. (Pathology) Jipmer, C/o Nijjar
Lab & Diagnostic Centre at 51/1, Court Road, Opposite
Church, Near GPO, Amritsar.
....Appellant/OP
Versus
1. Smt. Shahin W/o Joseph Gill, R/o 275, Nirankari Colony,
Fatehgarh Churian Road, Amritsar.
...respondent/complainant
2. The New India Assurance Company Co. Ltd., Branch, Mall
Road, Amritsar.
...Respondent/ OP no.6
First Appeal against the order
dated 08.12.2006 of the District
Consumer Disputes Redressal
Forum, Amritsar.
Before:-
Sardar Jagroop Singh Mahal,
Presiding Judicial Member.
Sardar Jasbir Singh Gill, Member.
Shri Vinod Kumar Gupta, Member.
2First Appeal No. 172 of 2007 Present:-
For the appellant : Sh. Updip Singh, Advocate For respondent no.1 : None For respondent no.2 : Sh. B.S.Taunque, Advocate JAGROOP SINGH MAHAL, PRESIDING JUDICIAL MEMBER:
This is OP's appeal under section 15 of the Consumer Protection Act (hereinafter referred to as the Act) against the order dated 08.12.2006 passed by the Learned District Consumer Disputes Redressal Forum, (hereinafter referred to as the District Forum) vide which the complaint was allowed and OPs were directed to pay an amount of Rs.25,000/- as compensation alongwith Rs.1,000/- as litigation expenses along with interest @8% per annum.
2. The present complaint was filed by Smt. Shahin, who had been suffering from diarrhea and fever for the last more than one year. In February, 2004 she along with her husband Joseph Gill went to Shri Guru Ramdas Hospital for checkup and treatment, where they met Dr. P.S.Malhotra who advised for Videoscopic Colonoscopy test. They were advised to go to Nijjer Jerath Endoscopy Centre-OP no.2 for the said test, where they deposited the necessary charges and thereafter, the test was conducted by OP/appellants no.2 to 4. The OPs no.2 to 4 performed the said test the report of which was given by them to the following effect:-
3First Appeal No. 172 of 2007
"Anal, rectal, sigmoid, descending seen. There is an Ulceroproliferative Growth With NARROWING in the left colon (Possibly descending colon) Bx/Cyto taken. Scope could not be negotiated Further."
They handed over the report to the complainant and told that Dr. Amitabh Mohan Jerath-OP no.4 had already got the sample from the body so that Bioscopy and Citology tests were performed by the OP/appellant no.5. The complainant therefore, deposited the requisite charges and thereafter, the OP/appellants no.1,3 and 5 gave their report dated 18.02.2004 to the complainant to the following effect:-
"FEATURES ARE SUGGESTIVE OF ADENOCARCINOMA ADVISED HISTOPATHOLOGY According to the complainant at the time they handed over the said report, the OP/appellant no.5 told them that she was suffering from 'Adenocarcinoma' which means 'Cancer'. Thereafter, the OP/appellants no. 1,3 & 5 gave their report of Biopsy on 21.02.2004, which is to the following effect:-
MICRO: Section studied shows blood clot, mainly exuberant granulation tissue and necrotic tissue infiltrated by neutrophils, lymphocytes, plasma cells, eosinophils and few atypical 4 First Appeal No. 172 of 2007 cells. There are seen few fragmented colonic mucosal glands lined by atypical looking cells.
IMP: MAINLY SHOW EXUBERANT GRAUNLATION TISSUE AND NECROTIC TISSUE.
ADVISED BIOPSY FROM REPRESENTATIVE AREA TO RULE OUT ADENOCARCINOMA."
3. It was contended by the complainant that OP/appellant no.5 advised them to approach some Specialist/Surgeon who can operate and save her life. Thereafter, the complainant and her husband approached Dr. A.Ghosh for the above said purpose who advised them to get some more tests performed. The complainant therefore, went to M/s Dhillon X-Ray Associates and Ms. Dhillon MRI Scan Centre to get NC and CECT ABDOMEN Tests/Scan and BARIUM ENEMA Tests performed on her. The report dated 24.02.2004 of the said tests was signed by Dr. Rakesh Chouhan. It was to the following effect:-
CT APPEARANCES ARE SUGGESTIVE OF:
STRUCTURE INVOLVING THE TRANSVERSE COLON AT THE LEVEL OF MIDDLE ONE THIRD AND LEFT ONE THIRD PORTION."5
First Appeal No. 172 of 2007 These reports were clear that she was not suffering from Cancer but it was only a transverse colon at the level of middle one third and left one third portion whereas in the report given by OP/appellants no.2, 3 & 4 the stricture was shown in the left Colon showing difference of opinion in both the reports.
4. The complainant and her husband thereafter, went to HARTEJ MATERNITY & NURSING HOME at Ranjit Avenue A-
Block, Amritsar for the necessary surgery of the complainant. After going through all the investigations and reports, Dr. Harmohinder Singh Nagpal of Hartej Maternity & Nursing Home told the complainant that though there was difference of opinion in between the reports yet the existence of growth of stricture was present and therefore, operation should be got conducted. The complainant was therefore, operated on 29.02.2004 by Dr. Nagpal who found that the report of M/s Dhillon X-Ray was accurate to be relied upon. A piece/portion was removed from the body of the complainant at the time of surgery and was sent for HISTOPATHOLOGY EXAMINATION to the Department of Pathology, Medical College, Amritsar, who sent their report dated 18.03.2004, the contents of which were to the following effect:-
"Multiple pieces processed show normal looking mucosa at most of the places. The pieces processed from the Ulcerated area show 6 First Appeal No. 172 of 2007 denudation of the mucosa alongwith presence of accute and chronic inflammatory infiltrate. In the sub mucosa as well as in the muscle layer, there are present epithiloyd cell Granulomac with Langhan's type of Giant Cells. The serosal lining is edematous and show chronic inflammatory cell infiltration with dilated blood vessles a small lymph node present in the fatty tissue shows epithilovd cell Granulomas. No evidence of any malignanicy seen. Appearances are suggestice of Granulomatous Pathology possibly tubercular in origin. Please co-relate with clinical and other laboratory investigations."
The contention of the complainant further is that it became clear that she was never suffering from 'Cancer' and the OP/appellants had given a wrong report and if this fact had not been reported by the appellants, there was no need for the complainant to go in for surgery. The contention of the complainant further is that the report given by the OPs was incorrect which shows that they acted in a gross negligent way and gave a wrong report by acting in a careless manner which caused mental harassment to the complainant. The complainant has to undergo major surgery and lost major part of her body for which the appellants were responsible. After the surgery the husband of the complainant 7 First Appeal No. 172 of 2007 approached the appellants and told them about the negligence and deficiency on their part which was done for monetary benefits by giving a wrong report. The OPs/appellants, however, did not think that it was a very serious and sensitive matter which would result in the death of the complainant who was having three minor children. They not only caused her monetary loss but also mental pain, mental torture agony and harassment. When the OPs did not listen to her, she filed the present complainant for compensation of Rs.5,00,000/- on account of mental pain agony and harassment and Rs.10,000/- as cost of litigation.
5. The complaint was opposed by the OPs/appellants no. 1 to 5 alleging that the complainant had not paid any amount to them for the test and therefore, he was not a consumer competent to file this complaint. It was admitted that Colonoscopy test was carried out by OP/appellant no.4 and during the procedure, growth was seen in the left colon due to which sample for Biopsy and Cytology was taken from the left Colon and was handed over to the complainant to get the same tested from the place of her choice The test report was also given to the complainant on 17.06.2004. Thereafter, the complainant herself went to OP/appellant no.1 for Biopsy and Cytology test. The OPs admitted the contents of the report dated 18.02.2004 where after another Bioscopy was conducted and the report dated 21.02.2004 was also admitted. It was contended that the complainant took the 8 First Appeal No. 172 of 2007 sample from the body for obtaining second opinion. It was denied if OP/appellant no.3 had taken part in any of the test. According to them the C.T.report was not in agreement with Colonoscopy report because the stricture i.e. narrowing is shown in left colon which includes transverse colon, descending colon sigmoid colon, rectum and Anal. It was denied if OP no.2 to 4 ever gave the diagnosis as Cancer. It was admitted that they gave a suggestive report which required further investigations. If the complainant took any decision on the basis of suggestive reports she cannot blame the OP. Her main surgery undergone by her had to be done to relieve narrowing and removing of disease region due to which she became totally fit and fine after the surgery. It was denied if the complainant is entitled to any compensation or cost.
6. OP no.6 is the Insurance Company which contended that they have no privity of contract with the complainant and the learned District Forum has no jurisdiction to fix their liablility. The other allegations were denied by them.
8. Both the parties were given opportunity to produce evidence in support of their contentions.
9. After hearing the Ld. Counsel for the parties and perusing the record, the Ld. District Forum allowed the complaint vide impugned order dated 08.12.2006 as mentioned in para no.1 9 First Appeal No. 172 of 2007 above. The OPs/appellants have challenged the same through this appeal.
10. We have heard the arguments of the Learned Counsel for the parties and have perused the record.
11. There is no dispute about the facts of the case. The complainant was suffering from diarrhea and fever for the last more than one year due to which she went to the hospital and was directed to go for Videoscopy colonoscopy tests. The report of the said test is Ex. C-3 in which it was noticed that there was Ulceroproliferative GROWTH with NARROWING and the left colon was strictured. The Biopsy conducted also showed malignant cells arranged in groups, sheets and scattered singly. The cells were pleomorphic with nuclei having fine granular chromatin, some show prominent nucleoli and irregular membrane. The cytoplasm is of moderate amount and grey blue in colour. The report Ex.C-4 was given by the OP/appellants to the effect that features were suggestive of Adinocarcinoma and Histopathology was advised. The Sigma Diagnostics Ultra Sound Scan Centre also gave its report Ex.C-5 vide which mild ascites was noticed. The OPs then gave Histopathology report of the Biopsy from Colon vide Ex. C-6 in which also EXUBERANT GRANULATION TISSUE AND NECROTIC TISSUE were seen due to which the complainant was advised Biopsy from 10 First Appeal No. 172 of 2007 representative part to rule out Adenocarcinoma. It is true that thereafter, the NC and CECT Abdomen was got conducted from Dhillon M.R.I.Scan Centre who gave its report Ex.C-7 and Ex. C-
8. Both these reports also show stricture involving transverse Colon. Now the question for determination is as to whether the OP/appellant had committed any medical negligence in giving the reports Ex.C-4 to Ex.C-6 due to which the complainant had to undergo various tests to rule out Adinocarcinoma or not. The learned District Forum held it as medical negligence holding that these reports were not based on correct reading of the matter before the OPs and they were therefore, negligent in creating a scare in the mind of the complainant. We, however, do not agree with the finding recorded by the learned District Forum in this respect.
12. There is no denying the fact that the complainant was suffering from diarrhea and fever for the last about one year. There was therefore, something wrong going on in her body which required proper tests and scanning. When the tests were carried out, the results showed that all was not well inside the body and it was suggestive of Adinocarcinoma. If the Doctors advised the complainant to get further tests conducted to rule out the said disease, they rather made the complainant aware of the problems he may face in future so that she gets proper treatment before the disease spreads to un-managing extent and they 11 First Appeal No. 172 of 2007 thereby helped the complainant to come out fit and fine. The matter would have been different if there was no abnormality found in any of the reports. Ex.C-5 also shows Mild Ascites and Ex.C-7 and C-8 showed stricture involving the transverse Colon. It may be mentioned that the scope of the Videoscopy Colon and Cytology is limited and therefore, from these tests alone the disease could not be ruled out. If ultimately the Adinocarcinoma was not found, no malafide intention can be attached to the OP/appellants who were striving to ask the complainant to get the tests conducted so that Adinocarcinoma is ruled out. There is no such report given by the OP/appellants to the effect that she was suffering from Adinocarcinoma i.e. Cancer we are of the opinion that the reports given by the OP/appellants did not constitute medical negligence.
13. If a person is suffering from fever and diarrhea and goes to the hospital for treatment it is the duty of the Dr. to examine the patient to rule out every possibility of disease in order to reach proper diagnosis so that the problem is treated properly. The patient should not be of a weak mind that merely because some tests are to be conducted to rule out the disease they should feel scared or suffer harassment and pain. Infact, she was already suffering from fever and diarrhea. The OPs therefore, helped the complainant to come out of the problem and it cannot be said that there was any medical negligence on their part. 12 First Appeal No. 172 of 2007
14. The finding recorded by the learned District Forum does not take into consideration the limitations faced by the Doctor in reading the data with the help of a machine where if the disease is not detected the patient would be facing problems. In the present case if the OPs had not advised the complainant to get the tests conducted to rule out Adinocarcinoma and God forbid she had been suffering there from then certainly there would have been medical negligence on the part of the OPs. However, if there was any error in the present case it was on the positive side and for the benefit of the complainant so that the presence of Adinocarcinoma is ruled out. We are of the opinion that the impugned order passed by the learned District Forum cannot sustain. The appeal is accordingly accepted and the impugned order is set-aside. Consequently, the complaint is dismissed.
15. Amount of Rs.13,500/- was deposited by the appellant on 05.02.2007. The appellant would be entitled to withdraw the said amount with interest accrued, thereon. The amount shall be remitted by the registry to the appellant after the expiry of the period of revision, if no stay order is received from the Hon'ble National Commission.
Parties are left to bear their own costs.
13First Appeal No. 172 of 2007 Copies of this order be sent to the parties free of cost.
(Jagroop Singh Mahal) Presiding Judicial Member (Jasbir Singh Gill) Member (Vinod Kumar Gupta) Member 6th September, 2012 Rashmi