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  • Raj
    Kumar v. Dr. Ajay Gupta

    I (2001) CPJ 495

       

    Consumer Protection Act, 1986 -
    Sections 2(1) (g), 14 (1) (d) -
    Medical Negligence – Wrong Diagnosis -
    Compensation – Complainant’s wife
    suffering from cancer not diagnosed -
    Damages claimed – Pathological
    examination done in the nature of
    report, no treatment advised – No
    fault/negligence on behalf o opposite
    parties proved – Opposite parties not
    liable for death of complainant’s wife
    – Complaint dismissed.

      

    Held further : We have perused the
    record in the present case. The only
    question to be decided is whether the
    opposite party Nos. 1,2 and 3 who have
    done the diagnosis can be held
    responsible for the death of the
    claimant’s wife and whether there was
    any negligence on their part which
    caused the death of the complainant’s
    wife . It is an admitted fact that the
    complainant’s wife was suffering from
    some disease and she was taken for
    pathological examination and submitted
    their report. They had not done
    clinical diagnosis of the
    complainant’s wife nor they have given
    any opinion regarding the disease
    which might have been contacted by the
    complainant’s wife but later on died.
    The complainant has not been able to
    prove by cogent evidence that there
    was any negligence on behalf of the
    opposite party Nos. 1 and 3. Similarly
    the pathological examination which was
    done by opposite party No. 2 was also
    in the nature of report which was
    based on the examination. He has also
    not advised anything. to the
    complainant for treatment of his wife
    . It has not been indicated by any one
    of the opposite party Nos. 1,2 and 3
    that the complainant’s wife is
    suffering from Cancer any other
    disease. It is suffering from Cancer
    or any other disease. It was for the
    doctor who had not come to definite
    understanding as to what was the
    disease present on the wife of
    complainant. They merely submitted
    their report and it was for the
    surgeon who had performed the
    operation. It was for them to see
    whether there was any cancer present
    in the complainant’s wife. The
    opposite party Nos. 1,2, and 3 have
    nothing to do with this part of
    diagnosis . Even in ultrasound the
    Cancer if it is less than 2 cms.
    cannot be detected, therefore, in our
    opinion there was no fault on behalf
    of the opposite party Nos. 1,2 and 3
    in causing the death of the
    complainant’s wife because they have
    not diagnosed the case. Thus we find
    that no case is made out against the
    opposite party Nos. 1,2 and 3.

      

    RESULT : Complaint dismissed.

      

    1.  Mr. Justice K.C.
    Bhargava, President – By means of this
    complaint , the complainant has prayed
    for damages of Rs. 4,00,00/- against
    the opposite party Nos. 1,2 and 3
    along with 18 % interest.

      

    2.  The facts of the case
    stated in brief are that the
    petitioner’s wife Smt. Vimlesh whose
    age is about 45 years had some trouble
    in her abdomen and was taken to the
    opposite party No. 1 Dr. Ajay Gupta ,
    Radiologist and Ultrasonologist on
    18-9-91 for medical check-up. The
    opposite party No.1 after completing
    all the formalities and after
    receiving all fees certified as
    suggestive of “GB Stones with
    Ascites”. The Photostat copy of
    report is filled as Annexure No. A .
    Thereafter Smt. Vimlesh was taken to
    opposite party No. 1 for further
    diagnosis and investigation. The cat
    scanning was done on 1-10-1991 after
    receiving a sum of Rs. 3,600/-  
    as fee. The photocopy of the same is
    filled as Annexure No.B . The patient
    was then referred by him to Dr. A.M.
    Nagar, MS of LLR Medical College ,
    Meerut . On the report given by
    opposite party No. 2 it also shows
    ” Ascities, Fluid Cytology”
    , the photo-copy of which is filed as
    Annexure-C. On the advice of Dr. Adip
    Mitra of Medical College, the
    petitioner took the patient to
    opposite party No. 3 after clinical
    examination certified as under :

      

    “Acitic Fluid-PAP-Staning of Smt.
    Vimlesh suggest as Negative for
    Malignant Cells”. The petitioner
    had paid charges of Rs. 180/- vide
    Receipt No. NIL dated 30/10/1991. The
    photo-copies of the said certificate
    and the receipt are attached herewith
    respectively as Annexures D &
    E.”

      

    All of the above reports given by the
    opposite parties to show that the
    patient was suffering from some other
    disease than the Cancer and that too
    of a very primary stage and not of an
    advance stage. It was advised that the
    necessary operations should be got
    done for removing the stone from the
    gall bladdar and for Acites.
    Thereafter the patient was admitted to
    the Medical College and was operated
    on 16/10/1991 for carrying on Ovarian
    Cycst. The operation shows that the
    abdomen was opened in layers. The
    report is as under :

      

    ” A risk is given in pentoneum
    and fluid is drained out, fluid is
    clear, strained in colour and about
    6-8 ltrs. is drained out. Pentonium
    omentum is seen studded, malignany is
    hard cartelagreous consistency, uterus
    is normal, ovary is nodular, normal in
    size , liver surface is filled with
    dodule of servne consist all intestive
    are metted together. A piece of Biopsy
    is send for HPE from oreneat case is
    found inoperable, thus adbomen is
    closed in layers. Skin is stitched
    with mattress sutune abdomeal avessing
    done. “

      

    3. The concerned doctor
    detected the case of Cancer of IVth
    Stage and suggested that the patient
    might have been suffering from Cancer
    for last many years. 

      

    4.  If the petitioner
    would have been advised properly at
    the earliest then the patient might
    would not have been operated upon and
    she would not have died so early. She
    died early on account of the operation
    which was wrong advice of opposite
    party Nos. 1,2 and 3. The examinations
    carried out by opposite party Nos.
    1,2,e and the report submitted by them
    are frivolous and mala fide and these
    three persons are solely responsible
    for the death of patient.

      

    5. In the written version the
    opposite party No. 1 has alleged that
    the answering opposite party is not
    liable for any claim as the operation
    was done in the Medical College and he
    has nothing to do with the treatment
    which was done in the Medical College.
    The answering opposite party only did
    abdomen Ultrasonography of the
    complainant’s wife and gave his
    report. This Commission has
    nojurisdiction to try this complaint.
    The complaint is bad for non-joinder
    of parties, namely Dr. M. Nagar and
    Dr. Adip Mitra who have performed the
    operation. The complainant is not a
    consumer . After the Ultrasonography
    on 18/9/1991 the Cat-Scanning
    ultimately the diseased wife of the
    complainant Government Hospital. She
    died on 28/11/1991 having a natural
    death. The matter should have been
    brought before the Civil  Court
    and this Commission has no
    jurisdiction to try this complaint.

      

    6.  It is further alleged
    that the professional services were
    rendered by the doctors under the
    contract of personal service depending
    upon the skill of the doctors.

      

    7.  On the basis of the
    Ultrawound X-ray film the report was
    correctly given as stated by the
    complainant. No finding can be given
    by the answering opposite party. It is
    wrong to say on the basis of the
    report of answering opposite party
    that the case of Cancer was made out
    and it was not told to the complainant
    at the time explanatory. The report
    did not indicate any disease like
    Cancer . The Ascitis was detected
    which is indicative of the following
    which means fluid in peritoneal cavity
    and it is seen in the following
    diseases :

       (1)  Cancer any
    where in the body 

       (2)  Tuberculosis
    abdomen 

       (3)  Cirrhosis liver

       (4)  Hypo Protenemia

    The complainant has not enclosed the
    operation slip prepared by the doctor
    which is very much needed for the
    decision of the controversy. The death
    certificate indicates that the
    operation was not for “Ovarian
    Cyst” but she was operated for
    Malignant Ovarian Tumour. The
    ultrasoundhas no role in detection of
    secondary Cancer of liver and
    Intestine etc. The accuracy of
    secondary Cancer of liver and
    intestine etc. The accuracy of
    secondary Cancer of liver and
    intestine etc. The accuracy of
    secondary Cancer of liver is only
    50-70 percent and that will depend
    upon the size and density of the
    Nodule . It is further stated that the
    size of the secondary Cancer is less
    than 2 cms . then it cannot be
    detected in the ultrasound.

      

    8. The opposite party No. 2 in
    its written version has alleged that
    the complainant is not a consumer and
    she died of natural death. The
    complainant never wrote any letter or
    complaint authenticity of pathological
    examination report given by him before
    operation was done. The pathological
    report submitted by the answering
    opposite party has not been challenged
    and has not also been disproved by any
    cogent evidence. The matter relates to
    the Civil Court and the State
    Commission has no jurisdiction to
    decide the same because the
    complicated question of law and facts
    are involved.

     

    9. The complainant has not
    attached the copy of the prescription
    of the treating doctors, Dr. M. Nagar
    and Dr. Adip Mitra of Medical College.
    The examination of Ascitic Fluid of
    the complainant’s wife was done by the
    means of physical, biochemical and
    microscopic examination by the
    answering opposite party. No diagnosis
    was done by the answering opposite
    party and he is merely submitted his
    report on the basis of examination. No
    clinical examination was done by the
    opposite party. The opposite party
    only charged a sum of Rs. 120/- from
    the complainant and not Rs. 160/- as
    alleged. The answering opposite party
    is not responsible for the death of
    the complainant’s wife. There is no
    medical report on record to show that
    the patient was suffering from Cancer
    IVth  Stage from a very long
    time. Parties filed their evidence in
    support of their case. We have heard
    the learned Counsel for the opposite
    parties 1 and 3 Mr. R. Chadha and Mr.
    K. C. Goyal on behalf of opposite
    party No. 2. the complainant was
    absent on the date of arguments.

     

    10.  We have perused the
    record in the present case. The only
    question to be decided is whether the
    opposite party Nos. 1,2 and 3 who have
    done the diagnosis can be held
    responsible for the death of the
    claimant’s wife and whether there was
    any negligence on their part which
    caused the death of complainant’s wife
    . It is an admitted fact that the
    complainant’s wife was suffering from
    some disease and she was taken for
    pathological examination to opposite
    party Nos. 1 snd 3 for the first time
    and thereafter opposite party No. 2
    did the pathological examination and
    submitted their report. They had not
    done clinical diagnosis of the
    complainant’s wife nor they have given
    any opinion regarding the disease
    which might have been contacted by the
    complainant’s wife but later on died.
    The complainant has not been able to
    prove by cogent evidence that there
    was any negligence on behalf of
    opposite party Nos. 1 and 3 .
    Similarly the pathological examination
    which was done by opposite party No. 2
    was also in the nature of report which
    was based on the examination. He has
    also not advised anything to the
    complainant for treatment of his wife
    . It has knot been indicated by any
    one of the opposite party Nos 1,2 and
    3 that the complainant’s wife is
    suffering from Cancer or any other
    disease. It was for the doctor who had
    not come to definite understanding as
    to what was the disease present on the
    wife of complainant . They merely
    submitted their report and it was for
    the Surgeon who had performed the
    operation. It was for them to see
    whether there was any Cancer present
    in the body of the complainant’s wife.
    The opposite party Nos. 1,2 and 3 have
    nothing to do with this part of
    diagnosis. Even in ultrasound the
    Cancer if it is less than 2 cms.
    cannot be detected , therefore, in our
    opinion there was no fault on behalf
    of the opposite party Nos. 1,2 and 3
    in causing the death of the
    complainant’s wife because they have
    not diagnosed the case . Thus we find
    that no case is made out against the
    opposite party Nos. 1,2 and 3 . 

        

    It may be said that Cancer is the
    disease and once the Cancer developed
    the life expediency of a patient
    cannot be predicted. It cannot be said
    that the life span of the patient will
    get reduced no merit in the case and
    the complainant liable to be
    dismissed.

        

    ORDER :-

    The complaint is dismissed. Under the
    circumstances, there will be no order
    as to the costs. Let copy of this
    order be made available to the parties
    as per rules.

    Complaint dismissed.

       
          

  • M.P.
    BALAMANI v. M.A.R.K.M.H. &
    RESEARCH CENTRE


    (2001) CPJ 483

        

    KARNATAKA STATE CONSUMER

    DISPUTES REDRESSAL COMMISSION,

    BANGALORE


       

    For more details       
    Click
    Here

        

  • SMT.
    SUPRITI MODAK v. DR. GOKUL CH MODAK


    II (2001) CPJ 219

     

    WEST BENGAL STATE CONSUMER DISPUTES REDRESSAL COMISSION,
    CALCUTTA


     

    Consumer Protection Act, 1986 – Section 15 – Appeal -
    Medical Negligence – Blood report of baby conducted thrice
    at different pathological laboratories, results showed
    different reading of bilirubin – Negligence alleged on part
    of physician and pathological laboratories – Dispute
    involved consideration of voluminous evidence – Forum
    declined to exercise jurisdiction – Order of Forum upheld in
    appeal.

     

    Result : Appeal dismissed.

     

    Order

      

    Mr. Justice S.C. Datta, President – This appeal is directed
    against order dated 30.4.1999 whereby the Forum declined to
    exercise jurisdiction vested in it in the matter of trial of
    the case. The forum was of opinion that the resolution of
    the dispute between the parties involves consideration of
    voluminous evidence and evidence of experts in the
    respective fields. The Forum noticed that the first question
    to be determined was whether the caesarean operation was
    necessary or not. During hearing it transpires that the baby
    was born by caesarean operation and there was definite
    allegation about negligence on the part of the attending
    physician and pathological laboratories in the matter of
    treatment of the baby. It is accepted that blood report of
    the baby was conducted thrice at different pathological
    laboratories and the results showed different readings of
    bilirubin. Ultimately, the baby was shifted to NRS Hospital
    at Calcutta whereby the grace of God the disease was
    properly diagnosed and the baby was cured. The Forum noticed
    that in order to prove the allegations regarding negligence
    on the part of the opposite parties, quite a few witnesses
    were required to be examined and these witnesses include
    Medical/Gynaecological/Pathological/ experts. The Forum
    declined to adjudicate the dispute relying on the ratio of
    decision of the Hon’ble Supreme Court reported in AIR 1996
    SC 550. We have considered the submissions of the learned
    Counsels for the parties and examined the impugned judgement.
    We find that the Forum was perfectly justified in not
    entertaining the dispute. For the reasons aforesaid, we
    decline to entertain the appeal. The appeal be dismissed.
    The petitioner may seek remedy before the appropriate Forum,
    if so advised.

        

    Appeal dismissed.

         

  • PUROHIT
    CHARITABLE LABORATORY – Appellant
    versus VIJAY KUMAR – Respondent


    III (2001) CPJ 239

       

    Appeal Nos. 874 and 875 of 1997 and
    Revision Petition Nos. 146 and 147 of
    1997 – Decided on 29.6.2000

       

    Consumer Protection Act, 1986 -
    Section 14(1)(d) – Compensation -
    Blood tests conducted negligently -
    Wrong report given – Forum awarded
    compensation of Rs. 5,000/- each -
    Hence appeal – Complainants suspicious
    about the report, got the samples
    tested from another laboratory – No
    adverse consequences followed -
    Compensation awarded on the higher
    side, reduced to Rs. 2,000/- each -
    Opposite party liable to refund the
    fees and cost of litigation.

         

    Result : Order accordingly

        

    ORDER

       

    Mr. Justice J.R. Chopra, President -
    These two appeal bearing No. 874 / 97 Purohit
    Charitable Laboratory
    v. Vijay
    Kumar
    and bearing No. 875 / 97
    filed by Purohit Chatitable
    Laboratoty
      v. Smt. Madhu ,
    are directed against two identical
    orders dated 10.3.1997 passed by the
    District Forum, Sriganganagar. In both
    these cases the facts are that Smt.
    Madhu wanted to have a VDRL test of
    her blood from the appellant
    laboratory as she was pregnant. It is
    alleged that she submitted her sample
    blood on 22.7.1996 by paying a fee of
    Rs. 50/-. Her blood was tested and the
    report given by the appellant about it
    was positive. The same test was got
    conducted by her husband Vijay Kumar
    and that also was found positive by
    the appellant laboratory. However they
    became suspicious and got the sample
    retested by another laboratory i.e.
    Tendon Diagnostic and they have
    reported the sample after test as
    negative for VDRl. Then both of them
    again gave their blood samples to the
    appellant Charitable Trust for VDRL
    test and the report of blood test
    given by them this time was negative
    for VDRL.

       

    2. It has been alleged that the
    earlier two tests were conducted by
    them negligently and they have given a
    positive report about their blood
    having VDRL in it and in deciding both
    these cases it has awarded Rs. 500/-
    as cost of litigation to each of the
    complainants and it has further
    ordered that the amount spent by the
    complainants in both these appeals
    amounting to Rs. 200/- each be
    refunded to them and each of them has
    also been awarded a compensation of Rs.
    5,000/- for mental agony also. Thus in
    all a repayment of Rs. 5,700/- have
    been ordered in favour of Smt. Madhu
    and Shri Vijay Kumar separately and it
    is against these two appeals have been
    filed. When the Commission was not
    functioning on the judicial side both
    these complainants wanted to proceed
    against the appellant Trust under
    Section 27 of the Act and hence they
    filed these two revisions to stay the
    orders passed by the District Forum in
    both these proceedings on 16.8.1997.

        

    3. We have heard Mr. Zakir Husain
    appearing for the appellant and Mr.
    Ajay Tantia for the respondants Mr.
    Zakir Husain has submitted that in
    such cases slight amount of error is
    possible in the blood test and,
    therefore, it should not be treated as
    a case of negligence, this respect he
    has placed reliance on the decision of
    Bihar State Commission in the case a Dharmendra
    Kumar Mishra
    v. Dr. Akhauri S.
    Sinha
    , reported in II (1996) CPJ
    298. In this case the Hon’ble State
    Commission of Patna has held that
    there may be error in the report
    regarding the blood group of a person
    without there being any negligence on
    the part of the doctor. A mistake in
    the report in this respect is not
    necessarily a case of negligent
    report. We are not ready to travel to
    that extent as has been done by the
    Hon’ble Bihar State Consumer
    Commission, that if blood group is
    reported wrongly that is not a case of
    negligence because if wrong report id
    given about a blood group it can
    create lot of problems and
    complications in treatment and may
    sometimes prove fatal. Thus we are
    unable to wholly subscribe to the view
    expressed by the Hon’ble Bihar State
    Consumer Protection Commission.

        

    4. Be that as it may in this case the
    complainants have not solely depended
    on the result of the tests conducted
    by the appellant. From the very
    beginning they were suspicious about
    this result and, therefore they got
    their samples retested from another
    laboratory i.e. Tendon
    Diagnostics on payment of testing
    fees. Thereafter when a negative
    report was received from Tendon
    Diagnostic they again as a measure of
    a abundant caution got their blood
    samples retested from this very
    laboratory again and when the report
    of this laboratory about the VDRL test
    was found to be negative they felt
    totally assured that the negative
    report of their blood test about
    presence of VDRL is the correct
    report. They have not acted on the
    positive report and, therefore, no
    adverse consequences have followed in
    this case except a little amount of
    mental agony caused to them on account
    of wrong report. Thus the amounts of
    compensation and costs that have been
    awarded to both these complainants
    (respondents) are definitely on the
    higher side. We reduce the cost of
    litigation payable to the complainants
    in both these cases from Rs. 500/- to
    Rs. 250/- and the amount of
    compensation of Rs. 5,000/- allowed to
    each of the complainants is reduced to
    Rs. 2,000/- each. However the award of
    the Forum to compensate them for the
    testing fees of Rs. 200/- paid by each
    of the complainant appears to be just
    and reasonable and accordingly it is
    hereby maintained. In the result both
    these appeals partially succeed, the
    award of compensation for mental agony
    awarded to each of the complainants
    amounting to Rs. 5,000/- is reduced to
    Rs. 2,000/-. Likewise  the
    amounts of costs of litigation
    amounting to Rs. 500/- awarded in
    favour of each of the complainants is
    reduced to Rs. 250/- each. The award
    of the refund of the amount paid by
    each of the complainants as fees
    amount paid by each of the
    complainants as fees amounting to Rs.
    200/- is hereby maintained. Now that
    the appeals have been decided as said
    hereinabove fresh proceedings 
    under Section 25 read with Section 27
    of the Consumer Protection Act can be
    taken in pursuance of this order if
    this order is not complied with within
    a reasonable time accordingly in view
    of these appellate orders. The orders
    passed by the District Forum daed
    16.8.1997 imposing an amount of fine
    of Rs. 2,000/- in each case on the
    revision petitioner are set aside in
    both these cases.

        

    In the result both the revision
    petition are allowed and the order of
    the District Forum passed in Misc.
    Case Nos. 68M / 97 and 69M / 97 dated
    16.8.1997 are set aside. These two
    appeals and two revision petitions
    filed by the Purohit Charitable
    Laboratory stand disposed of
    accordingly on merits along with the
    decisions of the aforesaid two appeals
    by this common order. The costs of
    these two appeals and both the
    revision petitions will be easy.

        

    Ordered Accordingly.

        


         


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What is Law     Right of Doctors     Responsibilities     Negligence     Consents     Records     Cases
       
Legislations     Medical Ethics      FAQ’s

   
    

Pathologist
     

  • Raj Kumar v. Dr. Ajay Gupta
    I (2001) CPJ 495
       
    Consumer Protection Act, 1986 - Sections 2(1) (g), 14 (1) (d) - Medical Negligence – Wrong Diagnosis - Compensation – Complainant’s wife suffering from cancer not diagnosed - Damages claimed – Pathological examination done in the nature of report, no treatment advised – No fault/negligence on behalf o opposite parties proved – Opposite parties not liable for death of complainant’s wife – Complaint dismissed.
      
    Held further : We have perused the record in the present case. The only question to be decided is whether the opposite party Nos. 1,2 and 3 who have done the diagnosis can be held responsible for the death of the claimant’s wife and whether there was any negligence on their part which caused the death of the complainant’s wife . It is an admitted fact that the complainant’s wife was suffering from some disease and she was taken for pathological examination and submitted their report. They had not done clinical diagnosis of the complainant’s wife nor they have given any opinion regarding the disease which might have been contacted by the complainant’s wife but later on died. The complainant has not been able to prove by cogent evidence that there was any negligence on behalf of the opposite party Nos. 1 and 3. Similarly the pathological examination which was done by opposite party No. 2 was also in the nature of report which was based on the examination. He has also not advised anything. to the complainant for treatment of his wife . It has not been indicated by any one of the opposite party Nos. 1,2 and 3 that the complainant’s wife is suffering from Cancer any other disease. It is suffering from Cancer or any other disease. It was for the doctor who had not come to definite understanding as to what was the disease present on the wife of complainant. They merely submitted their report and it was for the surgeon who had performed the operation. It was for them to see whether there was any cancer present in the complainant’s wife. The opposite party Nos. 1,2, and 3 have nothing to do with this part of diagnosis . Even in ultrasound the Cancer if it is less than 2 cms. cannot be detected, therefore, in our opinion there was no fault on behalf of the opposite party Nos. 1,2 and 3 in causing the death of the complainant’s wife because they have not diagnosed the case. Thus we find that no case is made out against the opposite party Nos. 1,2 and 3.
      
    RESULT : Complaint dismissed.
      
    1.  Mr. Justice K.C. Bhargava, President – By means of this complaint , the complainant has prayed for damages of Rs. 4,00,00/- against the opposite party Nos. 1,2 and 3 along with 18 % interest.
      
    2.  The facts of the case stated in brief are that the petitioner’s wife Smt. Vimlesh whose age is about 45 years had some trouble in her abdomen and was taken to the opposite party No. 1 Dr. Ajay Gupta , Radiologist and Ultrasonologist on 18-9-91 for medical check-up. The opposite party No.1 after completing all the formalities and after receiving all fees certified as suggestive of “GB Stones with Ascites”. The Photostat copy of report is filled as Annexure No. A . Thereafter Smt. Vimlesh was taken to opposite party No. 1 for further diagnosis and investigation. The cat scanning was done on 1-10-1991 after receiving a sum of Rs. 3,600/-   as fee. The photocopy of the same is filled as Annexure No.B . The patient was then referred by him to Dr. A.M. Nagar, MS of LLR Medical College , Meerut . On the report given by opposite party No. 2 it also shows ” Ascities, Fluid Cytology” , the photo-copy of which is filed as Annexure-C. On the advice of Dr. Adip Mitra of Medical College, the petitioner took the patient to opposite party No. 3 after clinical examination certified as under :
      
    “Acitic Fluid-PAP-Staning of Smt. Vimlesh suggest as Negative for Malignant Cells”. The petitioner had paid charges of Rs. 180/- vide Receipt No. NIL dated 30/10/1991. The photo-copies of the said certificate and the receipt are attached herewith respectively as Annexures D & E.”
      
    All of the above reports given by the opposite parties to show that the patient was suffering from some other disease than the Cancer and that too of a very primary stage and not of an advance stage. It was advised that the necessary operations should be got done for removing the stone from the gall bladdar and for Acites. Thereafter the patient was admitted to the Medical College and was operated on 16/10/1991 for carrying on Ovarian Cycst. The operation shows that the abdomen was opened in layers. The report is as under :
      
    ” A risk is given in pentoneum and fluid is drained out, fluid is clear, strained in colour and about 6-8 ltrs. is drained out. Pentonium omentum is seen studded, malignany is hard cartelagreous consistency, uterus is normal, ovary is nodular, normal in size , liver surface is filled with dodule of servne consist all intestive are metted together. A piece of Biopsy is send for HPE from oreneat case is found inoperable, thus adbomen is closed in layers. Skin is stitched with mattress sutune abdomeal avessing done. “
      
    3. The concerned doctor detected the case of Cancer of IVth Stage and suggested that the patient might have been suffering from Cancer for last many years. 
      
    4.  If the petitioner would have been advised properly at the earliest then the patient might would not have been operated upon and she would not have died so early. She died early on account of the operation which was wrong advice of opposite party Nos. 1,2 and 3. The examinations carried out by opposite party Nos. 1,2,e and the report submitted by them are frivolous and mala fide and these three persons are solely responsible for the death of patient.
      
    5. In the written version the opposite party No. 1 has alleged that the answering opposite party is not liable for any claim as the operation was done in the Medical College and he has nothing to do with the treatment which was done in the Medical College. The answering opposite party only did abdomen Ultrasonography of the complainant’s wife and gave his report. This Commission has nojurisdiction to try this complaint. The complaint is bad for non-joinder of parties, namely Dr. M. Nagar and Dr. Adip Mitra who have performed the operation. The complainant is not a consumer . After the Ultrasonography on 18/9/1991 the Cat-Scanning ultimately the diseased wife of the complainant Government Hospital. She died on 28/11/1991 having a natural death. The matter should have been brought before the Civil  Court and this Commission has no jurisdiction to try this complaint.
      
    6.  It is further alleged that the professional services were rendered by the doctors under the contract of personal service depending upon the skill of the doctors.
      
    7.  On the basis of the Ultrawound X-ray film the report was correctly given as stated by the complainant. No finding can be given by the answering opposite party. It is wrong to say on the basis of the report of answering opposite party that the case of Cancer was made out and it was not told to the complainant at the time explanatory. The report did not indicate any disease like Cancer . The Ascitis was detected which is indicative of the following which means fluid in peritoneal cavity and it is seen in the following diseases :
       (1)  Cancer any where in the body 
       (2)  Tuberculosis abdomen 
       (3)  Cirrhosis liver
       (4)  Hypo Protenemia
    The complainant has not enclosed the operation slip prepared by the doctor which is very much needed for the decision of the controversy. The death certificate indicates that the operation was not for “Ovarian Cyst” but she was operated for Malignant Ovarian Tumour. The ultrasoundhas no role in detection of secondary Cancer of liver and Intestine etc. The accuracy of secondary Cancer of liver and intestine etc. The accuracy of secondary Cancer of liver and intestine etc. The accuracy of secondary Cancer of liver is only 50-70 percent and that will depend upon the size and density of the Nodule . It is further stated that the size of the secondary Cancer is less than 2 cms . then it cannot be detected in the ultrasound.
      
    8. The opposite party No. 2 in its written version has alleged that the complainant is not a consumer and she died of natural death. The complainant never wrote any letter or complaint authenticity of pathological examination report given by him before operation was done. The pathological report submitted by the answering opposite party has not been challenged and has not also been disproved by any cogent evidence. The matter relates to the Civil Court and the State Commission has no jurisdiction to decide the same because the complicated question of law and facts are involved.
     
    9. The complainant has not attached the copy of the prescription of the treating doctors, Dr. M. Nagar and Dr. Adip Mitra of Medical College. The examination of Ascitic Fluid of the complainant’s wife was done by the means of physical, biochemical and microscopic examination by the answering opposite party. No diagnosis was done by the answering opposite party and he is merely submitted his report on the basis of examination. No clinical examination was done by the opposite party. The opposite party only charged a sum of Rs. 120/- from the complainant and not Rs. 160/- as alleged. The answering opposite party is not responsible for the death of the complainant’s wife. There is no medical report on record to show that the patient was suffering from Cancer IVth  Stage from a very long time. Parties filed their evidence in support of their case. We have heard the learned Counsel for the opposite parties 1 and 3 Mr. R. Chadha and Mr. K. C. Goyal on behalf of opposite party No. 2. the complainant was absent on the date of arguments.
     
    10.  We have perused the record in the present case. The only question to be decided is whether the opposite party Nos. 1,2 and 3 who have done the diagnosis can be held responsible for the death of the claimant’s wife and whether there was any negligence on their part which caused the death of complainant’s wife . It is an admitted fact that the complainant’s wife was suffering from some disease and she was taken for pathological examination to opposite party Nos. 1 snd 3 for the first time and thereafter opposite party No. 2 did the pathological examination and submitted their report. They had not done clinical diagnosis of the complainant’s wife nor they have given any opinion regarding the disease which might have been contacted by the complainant’s wife but later on died. The complainant has not been able to prove by cogent evidence that there was any negligence on behalf of opposite party Nos. 1 and 3 . Similarly the pathological examination which was done by opposite party No. 2 was also in the nature of report which was based on the examination. He has also not advised anything to the complainant for treatment of his wife . It has knot been indicated by any one of the opposite party Nos 1,2 and 3 that the complainant’s wife is suffering from Cancer or any other disease. It was for the doctor who had not come to definite understanding as to what was the disease present on the wife of complainant . They merely submitted their report and it was for the Surgeon who had performed the operation. It was for them to see whether there was any Cancer present in the body of the complainant’s wife. The opposite party Nos. 1,2 and 3 have nothing to do with this part of diagnosis. Even in ultrasound the Cancer if it is less than 2 cms. cannot be detected , therefore, in our opinion there was no fault on behalf of the opposite party Nos. 1,2 and 3 in causing the death of the complainant’s wife because they have not diagnosed the case . Thus we find that no case is made out against the opposite party Nos. 1,2 and 3 . 
        
    It may be said that Cancer is the disease and once the Cancer developed the life expediency of a patient cannot be predicted. It cannot be said that the life span of the patient will get reduced no merit in the case and the complainant liable to be dismissed.
        
    ORDER :-
    The complaint is dismissed. Under the circumstances, there will be no order as to the costs. Let copy of this order be made available to the parties as per rules.
    Complaint dismissed.
       
          

  • M.P. BALAMANI v. M.A.R.K.M.H. & RESEARCH CENTRE
    (2001) CPJ 483
        
    KARNATAKA STATE CONSUMER
    DISPUTES REDRESSAL COMMISSION,
    BANGALORE

       
    For more details        Click Here
        

  • SMT. SUPRITI MODAK v. DR. GOKUL CH MODAK
    II (2001) CPJ 219
     
    WEST BENGAL STATE CONSUMER DISPUTES REDRESSAL COMISSION, CALCUTTA
     
    Consumer Protection Act, 1986 – Section 15 – Appeal - Medical Negligence – Blood report of baby conducted thrice at different pathological laboratories, results showed different reading of bilirubin – Negligence alleged on part of physician and pathological laboratories – Dispute involved consideration of voluminous evidence – Forum declined to exercise jurisdiction – Order of Forum upheld in appeal.
     
    Result : Appeal dismissed.
     
    Order
      
    Mr. Justice S.C. Datta, President – This appeal is directed against order dated 30.4.1999 whereby the Forum declined to exercise jurisdiction vested in it in the matter of trial of the case. The forum was of opinion that the resolution of the dispute between the parties involves consideration of voluminous evidence and evidence of experts in the respective fields. The Forum noticed that the first question to be determined was whether the caesarean operation was necessary or not. During hearing it transpires that the baby was born by caesarean operation and there was definite allegation about negligence on the part of the attending physician and pathological laboratories in the matter of treatment of the baby. It is accepted that blood report of the baby was conducted thrice at different pathological laboratories and the results showed different readings of bilirubin. Ultimately, the baby was shifted to NRS Hospital at Calcutta whereby the grace of God the disease was properly diagnosed and the baby was cured. The Forum noticed that in order to prove the allegations regarding negligence on the part of the opposite parties, quite a few witnesses were required to be examined and these witnesses include Medical/Gynaecological/Pathological/ experts. The Forum declined to adjudicate the dispute relying on the ratio of decision of the Hon’ble Supreme Court reported in AIR 1996 SC 550. We have considered the submissions of the learned Counsels for the parties and examined the impugned judgement. We find that the Forum was perfectly justified in not entertaining the dispute. For the reasons aforesaid, we decline to entertain the appeal. The appeal be dismissed. The petitioner may seek remedy before the appropriate Forum, if so advised.
        
    Appeal dismissed.
         

  • PUROHIT CHARITABLE LABORATORY – Appellant versus VIJAY KUMAR – Respondent
    III (2001) CPJ 239
       
    Appeal Nos. 874 and 875 of 1997 and Revision Petition Nos. 146 and 147 of 1997 – Decided on 29.6.2000
       
    Consumer Protection Act, 1986 - Section 14(1)(d) – Compensation - Blood tests conducted negligently - Wrong report given – Forum awarded compensation of Rs. 5,000/- each - Hence appeal – Complainants suspicious about the report, got the samples tested from another laboratory – No adverse consequences followed - Compensation awarded on the higher side, reduced to Rs. 2,000/- each - Opposite party liable to refund the fees and cost of litigation.
         
    Result : Order accordingly
        
    ORDER
       
    Mr. Justice J.R. Chopra, President - These two appeal bearing No. 874 / 97 Purohit Charitable Laboratory v. Vijay Kumar and bearing No. 875 / 97 filed by Purohit Chatitable Laboratoty  v. Smt. Madhu , are directed against two identical orders dated 10.3.1997 passed by the District Forum, Sriganganagar. In both these cases the facts are that Smt. Madhu wanted to have a VDRL test of her blood from the appellant laboratory as she was pregnant. It is alleged that she submitted her sample blood on 22.7.1996 by paying a fee of Rs. 50/-. Her blood was tested and the report given by the appellant about it was positive. The same test was got conducted by her husband Vijay Kumar and that also was found positive by the appellant laboratory. However they became suspicious and got the sample retested by another laboratory i.e. Tendon Diagnostic and they have reported the sample after test as negative for VDRl. Then both of them again gave their blood samples to the appellant Charitable Trust for VDRL test and the report of blood test given by them this time was negative for VDRL.
       
    2. It has been alleged that the earlier two tests were conducted by them negligently and they have given a positive report about their blood having VDRL in it and in deciding both these cases it has awarded Rs. 500/- as cost of litigation to each of the complainants and it has further ordered that the amount spent by the complainants in both these appeals amounting to Rs. 200/- each be refunded to them and each of them has also been awarded a compensation of Rs. 5,000/- for mental agony also. Thus in all a repayment of Rs. 5,700/- have been ordered in favour of Smt. Madhu and Shri Vijay Kumar separately and it is against these two appeals have been filed. When the Commission was not functioning on the judicial side both these complainants wanted to proceed against the appellant Trust under Section 27 of the Act and hence they filed these two revisions to stay the orders passed by the District Forum in both these proceedings on 16.8.1997.
        
    3. We have heard Mr. Zakir Husain appearing for the appellant and Mr. Ajay Tantia for the respondants Mr. Zakir Husain has submitted that in such cases slight amount of error is possible in the blood test and, therefore, it should not be treated as a case of negligence, this respect he has placed reliance on the decision of Bihar State Commission in the case a Dharmendra Kumar Mishra v. Dr. Akhauri S. Sinha, reported in II (1996) CPJ 298. In this case the Hon’ble State Commission of Patna has held that there may be error in the report regarding the blood group of a person without there being any negligence on the part of the doctor. A mistake in the report in this respect is not necessarily a case of negligent report. We are not ready to travel to that extent as has been done by the Hon’ble Bihar State Consumer Commission, that if blood group is reported wrongly that is not a case of negligence because if wrong report id given about a blood group it can create lot of problems and complications in treatment and may sometimes prove fatal. Thus we are unable to wholly subscribe to the view expressed by the Hon’ble Bihar State Consumer Protection Commission.
        
    4. Be that as it may in this case the complainants have not solely depended on the result of the tests conducted by the appellant. From the very beginning they were suspicious about this result and, therefore they got their samples retested from another laboratory i.e. Tendon Diagnostics on payment of testing fees. Thereafter when a negative report was received from Tendon Diagnostic they again as a measure of a abundant caution got their blood samples retested from this very laboratory again and when the report of this laboratory about the VDRL test was found to be negative they felt totally assured that the negative report of their blood test about presence of VDRL is the correct report. They have not acted on the positive report and, therefore, no adverse consequences have followed in this case except a little amount of mental agony caused to them on account of wrong report. Thus the amounts of compensation and costs that have been awarded to both these complainants (respondents) are definitely on the higher side. We reduce the cost of litigation payable to the complainants in both these cases from Rs. 500/- to Rs. 250/- and the amount of compensation of Rs. 5,000/- allowed to each of the complainants is reduced to Rs. 2,000/- each. However the award of the Forum to compensate them for the testing fees of Rs. 200/- paid by each of the complainant appears to be just and reasonable and accordingly it is hereby maintained. In the result both these appeals partially succeed, the award of compensation for mental agony awarded to each of the complainants amounting to Rs. 5,000/- is reduced to Rs. 2,000/-. Likewise  the amounts of costs of litigation amounting to Rs. 500/- awarded in favour of each of the complainants is reduced to Rs. 250/- each. The award of the refund of the amount paid by each of the complainants as fees amount paid by each of the complainants as fees amounting to Rs. 200/- is hereby maintained. Now that the appeals have been decided as said hereinabove fresh proceedings  under Section 25 read with Section 27 of the Consumer Protection Act can be taken in pursuance of this order if this order is not complied with within a reasonable time accordingly in view of these appellate orders. The orders passed by the District Forum daed 16.8.1997 imposing an amount of fine of Rs. 2,000/- in each case on the revision petitioner are set aside in both these cases.
        
    In the result both the revision petition are allowed and the order of the District Forum passed in Misc. Case Nos. 68M / 97 and 69M / 97 dated 16.8.1997 are set aside. These two appeals and two revision petitions filed by the Purohit Charitable Laboratory stand disposed of accordingly on merits along with the decisions of the aforesaid two appeals by this common order. The costs of these two appeals and both the revision petitions will be easy.
        
    Ordered Accordingly.
        

         

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