Girija Bai vs ANAND INSTITUTE OF LABORATORY MEDICINE

-THIS complaint was heard on 9.3.2006 and reserved for judgment. Before the pronouncement of judgment, opposite parties (for short, "O.Ps.") Nos. 2 and 3 preferred Writ Petition No. 3091/2006 before the High Court of Karnataka seeking for quashing of the Order dated 13.6.2006 passed by this Commission wherein this Commission had ordered to eschew the evidence of O.P. 2 on the ground that O.P. 2 was not produced for cross-examination. On the writ petition the High Court granted an interim stay not to pronounce order pending disposal of the writ petition. Subsequently, the writ petition was allowed by the High Court by its order dated 31.1.2007 by setting aside the order dated 13.6.2005. Pursuant to the said order, this Commission directed the Counsel for O.P. 2 to produce O.P. 2 before this Commission for cross-examination. But in spite of that direction O.P. 2 was not produced before this Commission for cross-examination. Accordingly, the evidence of O.P. 2 was eschewed and the case was posted for arguments to 1.6.2007. Thereafter, the matter was heard.

THE deceased complainant has filed this complaint seeking for a direction to the opposite parties (for short, "O.Ps.") to pay compensation of Rs. 6,00,000 alleging "Negligence" on the part of the O.Ps. The facts in this case are as follows : The deceased complainant having sensed a swelling on the left breast approached Dr. M.V. Prabhu, who in turn directed the deceased complainant to have a check up at O.P. 1 Hospital. O.P. 1 Hospital having examined the complainant on 17.11.2000 gave a report that "Multiple FNA Smears show sheets of Hyperchromatic-pleo morphic Cells with nucleoli smears or positive malignancy". On the basis of the Report and the Slides, O.P. 1 directed the deceased complainant to approach O.P. 2 for treatment. O.P. 2 based on the report of O.P. 1 conducted "Total Mastectomy". According to the complainants, this has made the deceased complainant to suffer the loss of left breast.

The further case of the complainants is that the opinion given by O.Ps. 1 and 2 was totally misleading and the decision to remove the left breast was completely an incorrect decision, based on a wrong diagnosis. In support of this contention, the complainants have produced the Report of Medical Laboratory Services, which is marked as Exhibit ''C-5'', to the effect that there was no malignancy as diagnosed by O.P. 1. Alleging that the diagnosis made by O.P. 1 was a wrong diagnosis, the deceased complainant filed this complaint claiming compensation of Rs. 6,00,000 from O.Ps. 1 and 2.

O.P. 1 has filed its version stating that there was no negligence on its part in diagnosing the disease, since its opinion is based on the slides prepared by O.P. 2. It is further stated that the Report of Doctor Kannan J. Gharpure did bear the signature of some different person and no importance could be given to the said report. O.P. 2 has also filed its version stating that "FNAC" (Fine Needle Aspiration Cytology) is the standard world-wise accepted procedure to establish the diagnosis of cancer. According to this procedure adopted, the diagnosis made by it is correct and there is no negligence in giving the opinion.

THE complainants and O.Ps. 1 and 2 have filed their affidavits by way of evidence in support of their case. Doctor Sujay Prasad who filed the affidavit on behalf of O.P. 1 has been cross-examined by the complainant. THE documents produced were all marked as Exhibits. During the pendency of the complaint, the main complainant died. An application has been filed by the Legal Representatives of the deceased complainant to come on record. The said application to bring the Legal Representatives on record is allowed and the Legal Representatives are permitted to come on record in this appeal. On the pleadings of the parties, the points that arise for consideration are: (1) Whether the complainants prove negligence as alleged against O.Ps. 1 and 2? (2) To what relief the complainants are entitled? Point No. 1 :

FROM the averments in the complaint it is seen that the main complainant has impleaded O.P. 3 as a formal party, though no relief is claimed against O.P. 3.

THE complainants have filed the complaint alleging negligence on the ground that the diagnosis made by O.P. 1 was not correct. THE further case of the complainant is that on the basis of the wrong diagnosis, O.P. 2 has conducted the surgery and removed the left breast of the deceased complainant. In support of their case the complainants have produced the diagnosis made by O.P. 1 which is marked as Document No. 2 and also the diagnosis made by the Medical Laboratory Services, which is marked as document No. 5. Document No. 2 which is the report issued by O.P. 1 reads thus: "Multiple FNA smears show sheets of hyperchromatic pleomorphic cells with nucleoli. Smears are positive for malignancy."

O.P. 2 relying upon the said Report conducted a surgery and removed the left breast of the deceased complainant. THE learned Counsel appearing for the complainants submitted that so far as the surgery is concerned, there is no negligence on the part of O.P. 2. THE only case of the complainants is that because of wrong diagnosis made by O.P. 1, the deceased complainant was made to undergo a surgery for removal of left breast. Document No. 5 is the Histo Pathology Report issued by the Medical Laboratory Services. THE Report reads thus : "GROSS EXAMINATIONS : Left breast with skin flap, nipple, areola are unremarkable. Cut section shows many scattered areas of firm consistency of greywhite colour. A firm circumscribed nodule 2 cms in size is seen in medial side. 8 Lymphnodes dissected from axilla. Apical fat 2 nodes. MICROSCOPIC DIAGNOSIS : Multiple sections from breast reveal fibrosis with hyalinization around atrophic breast tissue. Nodule also shows fibrosis with hyalinisation. Occasional lobule shown introduce papillomatosis. No malignancy. 8/8 axillary nodes - free 2/2 apical nodes - free."

From this it is seen that the diagnosis made by O.P. 1 prior to the surgery was a wrong diagnosis, in view of the Report at Exhibit ''C-5'', which was the Report on the basis of the object sent after the surgery, which made the deceased complainant to lose her left breast. If really the deceased complainant was suffering from cancer, after the operation she could have continued the treatment till the disease was cured. In the instant case, it is not the case of the O.Ps. that the complainant was taking any treatment subsequent to the operation. From this it is seen that the diagnosis made by O.P. 1 was a wrong diagnosis which made the deceased complainant to undergo a surgery for removal of the left breast. After the operation the deceased complainant survived for more than four years and died in the normal course and not on account of cancer. This also shows that the diagnosis made by O.P. 1 was a wrong diagnosis. O.P. 1 has not disputed or denied the contents of Document No. 5. THErefore, for all these reasons, we are of the view that the diagnosis made by O.P. 1 was not correct and in all probability the Report was issued without application of mind. THErefore, we hold that O.P. 1 is liable to pay compensation in favour of the complainants as the deceased complainant was made to undergo a surgery and also made to suffer mental agony and hardship. Point No. 2 : The deceased complainant was aged about 65 years at the time of her death. She died four years after the surgery. Taking these facts into consideration, we are of the view that awarding a sum of Rs. 50,000 as compensation in favour of the complainants by directing O.P. 1 to pay the same would meet the ends of justice.

In the result, we pass the following Order: (1) The complaint is allowed in part. (2) O.P. 1 is directed to pay Rs. 50,000 (Rupees fifty thousand only) to the complainants with interest at 6% from the date of the complaint till realisation. (3) Complaint so far as O.P. Nos. 2 and 3 concerned is dismissed. (4) O.P. is also directed to pay a cost of Rs. 2,000 to the complainants.

Complaint partly allowed.