Ramesh Garg vs Rahul

BY way of this revision petition, there is challenge to order dated 21.7.2006, passed by State Consumer Disputes Redressal Commission, Chandigarh (for short ''State Commission'').

VIDE impugned order, State Commission, allowed the appeal of the respondent against order dated 13.9.2000, passed by the District Consumer Disputes Redressal Forum, Yamuna Nagar (for short ''District Forum''), which has dismissed the complaint of the respondent.

BRIEF facts relevant for the disposal of present revision petition are that, the son of the respondent was suffering from certain ailment and was undergoing treatment from Dr. T.K. Gupta, Gupta Hospital, Bilaspur. It is alleged that on 6.2.2008, the doctor asked the respondent to get certain tests of TLC/DLC done from the clinic of the petitioner. Accordingly, respondent approached the petitioner on the same date for getting the tests done, for which petitioner charged a fee of Rs. 250. It is also the case of the respondent that, in his report petitioner opined that respondent was suffering from Tuberculosis . On the basis of said report, Dr. T.K. Gupta, referred the respondent to get treatment from the Civil Hospital. There treatment for Tuberculosis of respondent was started. Even after getting the treatment from the said civil hospital, position of respondent/patient worsened. No improvement was seen in his condition and thereafter, he was got tested from Kamal Hospital, Karnal. The laboratory gave the report dated 2.4.1998. According to that report, respondent was suffering from Cancer. The Doctor advised that respondent be taken to Delhi for treatment. Respondent was taken to PGI, Chandigarh, where certain tests were conducted by the Dr. Marwah at PGI and it was told that respondent was suffering from Cancer. Respondent remained admitted in the PGI for eight days. It is alleged that respondent has suffered due to the wrong report given by the petitioner. There is deficiency on the part of the petitioner. Thus respondent has sought compensation to the tune of Rs. 5,00,000 on account of sufferings, pain and treatment, etc.

PETITIONER in its reply has stated that respondent was suffering from some ailment and was under the treatment of Dr. T. K. Gupta. Respondent was referred to the petitioner only for lab test. Respondent came to petitioner for "FNAC" test and was charged Rs. 150 and not Rs. 250. As per report, the evidence was suggestive of "Tuberculosis Lymph node". Thus, respondent was advised for Mx. Test/X-Ray chest clinical correlation and Biopsy for H. P. E. since the report was only suggestive. The complete and unmistakable test is Biopsy for HPE. Respondent was advised to get the test of Lymph Node Biopsy in order to embark upon the finality of disease, for which he did not turn up to the petitioner. The report of M/s. Bajaj Clinical Lab, Karnal is also suggestive, it shows that the report of Bajaj Clinical Lab confirmatory. There is no deficiency on the part of the petitioner. The complaint is false and frivolous. The FNAC test is not always confirmatory test, whereas the Biopsy is a complete and confirmatory test. Petitioner prayed for the dismissal of the complaint.

DISTRICT Forum, vide its order dated 13.9.2000, dismissed the complaint of the respondent, holding that there is no deficiency on the part of petitioner.

AGGRIEVED by the order of District Forum, respondent filed an appeal before the State Commission.

VIDE impugned order, State Commission, accepted the appeal of the respondent with costs of Rs. 5,000 and awarded him Rs. 1,00,000 as compensation.

IT is contended by learned Counsel for the petitioner that petitioner after conducting the FNAC (Fine Needle Aspiration Cytology) Test, in his Report nowhere conclusively held and said that respondent is having Tuberculosis. Moreover, he opined that the evidences are suggestive of Tuberculosis Lymph node and advised for few other tests such as Mx Test (Mauntox test for tuberculosis), X-ray Chest, Clinical Correlation ( Clinical Data) and Biopsy for HPE, if there is need, for which respondent never turned up. Thus, petitioner only indicated and hinted towards Tuberculosis and left the decision for conducting other tests by referring to the treating doctor Dr. T.K. Gupta.

IT is further contended that the word ''suggestive'' does not reflect/mean that the findings of the Petitioner are conclusive. According to the Webster''s Third New International Dictionary Word "Suggestive" means "indicative; giving a suggestion of hint".

AGAIN Black''s Law Dictionary Fifth Edition gives the meaning of the Word "Suggestion" as under: "A Suggesting; presentation of an idea especially indirectly, as through association of ideas, bringing before the mind for consideration, action, solution or the like. It is in the nature of a hint or insinuation, and lacks the element of probability. Facts, which merely suggest do not raise an inference of the existence of the facts suggested and therefore a suggestion is much less than an inference or presumption."

IT is further contended that "FNAC Test" by the Pathologists has its own limitation and only after Biopsy test a confirmed opinion about Cancer can be given, which is very much clear from the statement of RW-1, Dr. Charu Minglani, Associate Professor, DAV Centenary Dental College, Yamuna Vihar, whom petitioner had examined before the District Forum.

PETITIONER after conducting the tests on the respondent has diagnosed him for Tubercular Lymphadenitis which in no way can be said to be a wrong report. Since, there is no negligence on part of the petitioner, impugned order is thus liable to be set aside.

ON the other hand, it is contended by the learned Counsel for respondent that petitioner has given treatment for ''TB'' instead of ''Cancer'', and due to which condition of respondent further worsened. Had petitioner taken due care and caution, then he would not have given wrong report. Thus, negligence on the part of petitioner is writ large and he has acted in a negligent manner without due care and caution in giving finding that respondent was suffering from TB, while in fact he was suffering from Cancer. Thus, respondent had to undergo lot of sufferings. The impugned order passed by State Commission does not suffer from any illegality and there is no ambiguity in the impugned order.

DISTRICT Forum in its order dated 13.9.2000 has observed: "After hearing the Counsel for the parties and going through the facts of the case and documents placed on the file, and per report of the Respondent, the photo copy of which has been placed on the file, it has been mentioned that the evidence are suggestive of tuberculosis lymphoma and it was not the clear cut case of tuberculosis. On the photo copy of report, it has been mentioned MX TEST/X-ray chest clinical correlation and Biopsy for H. P. E., and as per report of Bajaj Clinical Lab, photo copy of which has been filed as Mark C, is also suggestive. The report of Bajaj Clinical Laboratory is also suggestive. On the other hand, the respondent has examined Dr. Mrs. Charu Miglani, Professor Associate of DAV College, Yamuna Nagar, but the complainant has not examined any expert in support in support in his case. So, there is no deficiency on the part of the respondent. It is the complainant who is to prove his case. The complaint is meritless and the same is hereby dismissed with no order as to cost."

ON the other hand, State Commission while reversing the findings of District Forum held that: "15 On the basis of report of respondent, the treatment of appellant was started at Civil Hospital, Jagadhri for tuberculosis but instead of improving, his condition worsened and knots which were on the neck got swelled.

THE appellant was taken by his father to Dr. Bajaj''s Clinical Laboratory, Opposite Civil Hospital, Karnal who gave his report dated 2.4.1998 which has been placed on file, shows that he had given the impression as under: Small lymph node shows a picture suggestive of Hodgkin''s Lymphoma (Lymphocyte Predominant type) FNAC(C-105/98) of the left cervical lymph node mass shows a picture of Hodgkin''s lymphoma (Lymphocyte Predominant type).

THEREFORE, this report dated 2.4.1998 is suggestive of cancer. Dr. R.K. Marwah, Additional Professor and Incharge of Pediatric Hematology-Oncology, PGI, Chandigarh had given his report dated 27.11.1999, according to it, Master Rahul aged about 7 years was patient of Hodgkin disease (Lymph node cancer). He received treatment in the institute from April 1998 to June, 1998 and was well when he has visited the clinic on 5.11.1998. He further stated in it that his clinical status was to be observed for more than 2 years and he shall continue with periodic visits to the Pediatric Hematology clinic for monitoring.

THE treatment which he had taken in the PGI, Chandigarh is mentioned in OPD card, photo copy of which is available on file. Therefore, there is no manner of doubt that the respondent had given a wrong report.

OF course, respondent had examined Dr. Charu Miglani, Associate professor, DAV Centenary Dental College, Yamuna Nagar. She had stated that some cells like lymphocytes, could be seen both in Tuberculosis and Lymphoma. May be there could be some similarity between the cells of TB and Lymphoma but the respondent if he had conducted test properly would not have given declaring the appellant to be suffering from TB. The appellant as per report of respondent had to get treatment for TB instead of cancer for no fault of his own due to which, his condition further worsened and lymph knots in his neck swelled. If the respondent had taken due care and caution, then he would not have given such a wrong report. Thus, negligence on the part of doctor is writ large.

THEREFORE, in view of the discussion above, we hold that respondent had acted negligently without due care and caution in giving finding that the appellant was suffering from Tuberculosis due to which he had suffer. .Appellant is a minor aged about 7 years and one can realize pain and suffering which he had to undergo.

KEEPING in view the circumstances of the case the appeal is accepted with costs of Rs. 5,000 and appellant is awarded Rs. one lac as compensation against respondent. The said amount be paid within one month, failing which the same would be realized with interest @ 9% p.a.

AS per averments made in the complaint, respondent was undergoing treatment from Dr. T. K. Gupta. On 6.2.1998, this doctor asked the respondent to get certain tests of TLC/DLC done from the clinic of petitioner and for that purpose, Dr. Gupta gave a writing to the respondent. However, that writing which was a material piece of evidence, has not been placed before this Commission, by either of the parties. Be that as it may, respondent approached the petitioner on the same day i.e. (6.2.1998) and got the tests done. Accordingly, petitioner who was running a clinical lab only, after conducting the tests gave the following report: "Name of the Patient ..... Rahul...... Ref. By.......T.K. Gupta. MS FNAC ME : The evidence are suggestive of tubercular lymphadenitis. Mx Test/X Ray Chest Clinical Correlation and Biopsy for HPE if there is need."

BARE reading of the above report shows that: "The evidences are suggestive of tubercular lymphadenitis."

REPORT further states that following tests are required if there is need, namely: "Mx Test/X Ray Chest Clinical correlation and Biopsy for HPE."

AS respondent was referred to the petitioner, by Dr. Gupta (treating doctor of the respondent) for getting certain tests and once the report of petitioner was before Dr. Gupta, it was for Dr. Gupta to prescribe necessary treatment for his patient i.e. the respondent.

HOWEVER, as per complaint, Dr. Gupta after seeing the report given by the petitioner, did not treat the respondent himself, but referred him to Civil Hospital, Jagadhri. Since, there was no improvement in the condition of the patient, the patient was taken to Kamal Hospital, Karnal and got the tests conducted again from Bajaj Clinical Laboratory, Karnal. The said Laboratory gave its report on 4.4.1998 and according to their report, patient was found to be suffering from Cancer. Thereafter, as advised, respondent was taken to PGI, Chandigarh, where he was treated for Cancer. Under these circumstances, it is to be seen as to whether there is any medical negligence on the part of petitioner or not.

AS observed earlier, petitioner has simply performed clinical tests and was not the treating doctor of the respondent. Moreover, his report clearly states that: "The evidence are Suggestive of ''Tuberculosis Lymphadinitis''. It also states that certain tests for Biopsy for HPE are required, if there is need."

IN view of the above report, it was the duty of the treating doctor i.e. Dr. Gupta, to choose the line of treatment for the patient. There is nothing on record to show that Dr. Gupta even asked for any further tests of "Biopsy for HPE", as suggested by the petitioner in its report. Instead of treating the respondent, Dr. Gupta straightaway referred him to Civil Hospital, Jagadhri. There is also nothing on record to show that even Doctor at Civil Hospital, Jagadhri ever conducted any further test of "Biopsy for HPE" or any other tests as suggested by the petitioner.

IT appears that Doctor of Civil Hospital, Jagadhri on the report of petitioner which was simply suggestive of "Tuberculosis Lymphadinitis" and without conducting other suggested tests, on its own started the treatment of TB for the respondent.

IT was only after the second test, which was conducted on 2.4.1998 at Bajaj Clinic Lab it has become clear that respondent was suffering from cancer. Thus, none of the treating doctors acted on the report of the petitioner, between 6.2.1998 and 2.4.1998 (when the second test was conducted). Since, no further tests as suggested by petitioner, were conducted by any of the treating doctors, the treating doctors without getting the complete investigation done have put the respondent for TB treatment, which act of their amounts to negligence.

AS stated above, the dictionary meaning of the word ''suggestive'' is in the nature of hint and lacks the element of probability and a suggestion is much less than an inference. It clearly shows that the word "Suggestive" by no means can take the place of word ''Definite or Confirm''.

IT is well established in the medical science that only after a Biopsy test, confirm opinion about Cancer can be given. We agree with the statement of RW-1, Dr. Charu Minglani, who deposed as under; "In many cases the FNAC test is probable and suggestive test as compared to Biopsy test. Biopsy Test is a confirmatory test as compared to FNAC test. In both the T. B. and Cancer, Lymph Nodes can be seen. The Clinical features of T. B and Cancer can also resemble. To be sure and to start the treatment of the patient, Biopsy test is always a better test and particularly in the Cancer cases. Before labelling the patient suffering from Cancer, one should be very cautious."

AS to what constitute medical negligence, has been dealt with by Apex Court in Kusum Sharma and Others v. Batra Hospital and Medical Research Centre and Others, I (2010) CPJ 29 (SC)=II (2010) SLT 73=AIR 2010 SC 1052, in which the Court observed: "94 On scrutiny of the leading cases of medical negligence both in our country and other countries specially United Kingdom, some basic principles emerge in dealing with the cases of medical negligence. While deciding whether the medical professional is guilty of medical negligence following well know principles must be kept in view- (i) Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. (ii) Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment. (iii) The medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires. (iv) A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field. (v) In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligence merely because his conclusion differs from that of other professional doctor. (vi) The medical professional is often called upon to adopt a procedure which involves higher clement of risk, but which he honestly believes as providing greater chance of success for the patient rather than a procedure involving risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence. (vii) Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession. (viii) It would not be conducive to the efficiency of the medical profession if no Doctor could administer medicine without a halter round his neck. (ix) It is our bounden duty and obligation of the civil society to ensure that the medical professional are not unnecessary harassed or humiliated so that they can perform their professional duties without fear and apprehension. (x) The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professional/hospitals particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioner. (xi) The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals. 95. In our considered view, the aforementioned principles must be kept in view while deciding the cases of medical negligence. We should not be understood to have held that doctors can never be prosecuted for-medical negligence. As long as the doctors have performed their duties and exercised an ordinary degree of professional skill and competence, they cannot be held guilty of medical negligence. It is imperative that the doctors must be able to perform their professional duties with free mind."

APPLYING the above principles as laid down by the Apex Court with regard to medical negligence, our conclusion becomes irresistible that no case of medical negligence is made out against the petitioner at all.

UNDER these circumstances, we accept this revision and set aside the impugned order passed by the State Commission and restore the order of District Forum, dismissing the complaint of the respondent.

IN the peculiar circumstances of the case, no order as to costs. Revision allowed.