SANTOSH KAUR SODHI vs VIJAY MUJOO

WE have heard the learned Counsel for the appellants and have perused the order under appeal dated 2.12.2002 passed by the District Consumer Disputes Redressal Forum-II [for short hereinafter referred to as the District Forum] in Complaint Case No. 909 of 1999, Mrs. Santosh Kaur Sodhi v. Dr. Vijay Mujoo. The District Forum held that the appellants had failed to prove medical negligence or deficiency in service in giving the report about carcinoma of uterus of Mrs. Santosh Kaur Sodhi, appellant No. 1. The District Forum, thus, dismissed the complaint.

THE facts of the complaint case, briefly stated are that Dr. Neeraj Chawala of Gynae Endoscopy Centre, Chandigarh advised the appellant No. 1, Smt. Santosh Kaur Sodhi to get herself tested for cancer and suggested the name of the respondent Dr. Vijay Mujoo, MD, Pathologist of Medi-Path Diagnostic Laboratory located in Sector 15-D, Chandigarh. After the test, the respondent Dr. Vijay Mujoo prepared his report on 26.6.1999 and diagnosis "Endometrium; small cell carcinoma (Oat cell type)" which in the common parlance meant cancer. After getting this report, the appellant No. 1 was taken to Tata Memorial Hospital, Mumbai for treatment which has been described to be the best available Hospital for treatment of cancer. It is alleged that the uterus of the appellant No. 1 Smt. Santosh Kaur Sodhi was removed relying on the report of respondent Dr. Vijay Mujoo and thereafter a part of Uterus was sent for Hitsopathological test for presence of cancer. It is alleged that in the Histopathological test which was conducted in the said Tata Memorial Hospital, cancer was not found in the uterus. The grievance of the appellants was that the wrong report of the respondent led the appellants to rush to Tata Memorial Hospital at Mumbai where the uterus of Smt. Santosh Kaur Sodhi was removed. Thereafter, the report of Histopathological examination showed that there was no carcinoma of uterus. The appellants were considerably worried and rather shocked on account of the wrong report regarding cancer in the uterus as reported by the respondent Dr. Vijay Mujoo. The appellants filed the complaint claiming a sum of Rs. 3,39,690/- as compensation, expenses in treatment, etc. Besides the claim of compensation, the appellants also prayed that O.P. be restrained from endangering the precious life of the citizens by his negligence and careless conduct and prayed for any other relief which the Forum deems fit and proper in the circumstances of the case.

In the written statement, the respondent Dr. Vijay Mujoo defended his report and stated that he prepared the report after conducting the tests and he had given the original slide and block to Shri Ajaybir Singh Sodhi, son of the appellants in order to have second opinion regarding the report, from P.G.I.M.E.R., Chandigarh. He also mentioned that he had in good faith suggested to the appellants/complainants to consult the P.G.I. for second opinion and never made any other recommendation to him. He also took a plea that Tata Memorial Hospital, Mumbai is a reputed Hospital and such like Hospital does not perform major operations like cancer relying upon the laboratory report of private doctors and they conduct their own laboratory tests before performing operations regarding cancer. He also took a plea that there was no material on record to show that the report prepared by him was incorrect.

MR. I.P.S. Doabia, Advocate, learned Counsel for the appellants mainly relied on the fact that the respondent Dr. Vijay Mujoo had in his report diagnosis cancer of uterus without properly ascertaining the same and it led the appellants to go to Tata Memorial Hospital at Mumbai for the treatment. It may be pointed out that the appellants have taken up a specific case that the uterus of the appellant No. 1 was removed solely relying on the report of the respondent Dr. Vijay Mujoo and it was after the uterus had been removed that it was sent for Histopathological test in which cancer was negatived. The other submission of MR. Doabia, Advocate, learned Counsel for the appellants is that the appellants were rather in inferior situation to the position occupied by the respondent Dr. Vijay Mujoo, a Pathologist and as such he was required to be much more careful in dealing with the case and placed reliance on the judgment of Hon''ble Apex Court delivered in the case of Spring Meadows Hospital v. Harjol Ahluwalia, III (1998) SLT 684=AIR 1998 SC 1084, wherein the Hon''ble Apex Court while deciding the two appeals arising out of the order of the Hon''ble National Consumer Disputes Redressal Commission, New Delhi, passed in the complaint case, held in Para 9 of the judgment as under : "9. In the case in hand we are dealing with a problem which centres round the medical ethics and as such it may be appropriate to notice the Board responsibilities of such organizations who in the garb of doing service to the humanity have continued commercial activities and have been mercilessly extracting money from helpless patients and their family members and yet do not provide the necessary services. The patient is not always equally balanced. The attitude of a patient is poised between trust in the learning of another and the general distress of one who is in a state of uncertainty and such ambivalence naturally leads to a sense of inferiority and it is not abused in any manner...."

The facts of the present case are totally different and distinct from the facts of the case reported as Spring Meandows Hospital (supra), wherein the Hon''ble Apex Court has upheld the order passed by the Hon''ble National Commission in holding the doctors and nurses negligent in performance of their duties, as per the established medical standards. Mr. I.P.S. Doabia, Advocate was, however, unable to satisfy us that the report by Dr. Vijay Mujoo was prepared carelessly and negligently and that it was not a report prepared after conducting tests as per established norms and medical parlance and further as per the professed expertise of the respondent.

THE District Forum has rightly pointed out that a reputed Hospital like Tata Memorial Hospital, Mumbai would not have solely relied on the report of the respondent Dr. Vijay Mujoo and would have got the tests conducted at Mumbai before taking decision for major surgery like removal of uterus. Even the report of Histopathology after the removal of uterus was not proved by leading credible evidence. We are of the considered opinion that the respondent cannot be said to be either careless or negligent in conducting the tests and giving his report. It is well-settled position of law that a doctor while giving his opinion or treatment as per established medical practice could come to a particular opinion which any other more experienced and qualified doctor may not arrive at and there may be difference in opinion regarding the presence of a particular disease such like cancer in the instant case and mere difference in opinion cannot be said to be a ground for fastening liability on the respondent Dr. Vijay Mujoo by holding him careless or medically negligent. THE appeal lacks merit and is dismissed in limine. Appeal dismissed.