SURANA DIAGNOSTIC RESEARCH CENTRE vs Shashi Kapoor

BOTH the aforesaid appeals are being decided by this common judgment as in both of them common questions of law and facts are involved and they arise out of the same order dated 31.5.1997 passed by the learned District Forum, Jaipur-I, Jaipur. Appeal No. 1673/97 Surana Diagnostic Research Centre v. Smt. Shashi Lapoor

THIS appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as "the Act of 1986") has been filed by the appellant against the order dated 31.5.1997 passed by the learned District Forum, Jaipur-I, Jaipur by which the complaint filed by the complainant-respondent under Section 12 of the Act of 1986 was allowed in the manner that the appellant was directed to pay to the complainant respondent a sum of Rs. 12,000 (Rs. 2,000 incurred for journey to Bombay, Rs. 2,000 incurred for testing and Rs. 8,000 incurred for stay at Bombay) and Rs. 3,000 as amount of compensation and cost of litigation.

The necessary facts giving rise to this appeal are as follows: On 14.12.1993, the complainant-respondent had filed a complaint under Section 12 of the Act of 1986 before the District Forum, Jaipur City, Jaipur stating inter alia that Dr. P.K. Wanchoo had performed the operation of breast cancer of the complainant respondent on 17.4.1982 and after treatment by radiotherapy and chemotherapy the complainant got rid of the disease and according to the directions of the doctor, she was getting her regular check up after every six months so that if there was any sign of recurrence of cancer, the same may be noticed. It was further stated in the complaint that on 12.5.1993, the complainant-respondent for her regular check up got the Sonography, Chest x-ray and T.L.C. and other blood tests done at the appellant''s Diagnostic Research Centre. It was further stated in the complaint that the appellant gave the report (Ex. 4) of ultra sound sonography on 12.5.1993 in which metastatic lesion of .5x2.80 cm in liver was shown. In the chest X-ray report Ex. 5 given by the appellant, metastatic lesion was reported in lungs and bones and it was also reported that lateral part of third rib was eroded with osteolytic lesion. In this manner, in the reports (Ex. 4 and Ex. 5) of the appellant, development of cancer was shown in lungs, rib and liver and on account of these reports, the complainant-respondent and the husband and other family members of the complainant respondent got serious set back since they regarded it as serious stage of cancer. It was further stated in the complaint that thereafter, the complainant-respondent got herself examined by Dr. P.K. Wanchoo, who, looking to the clinical condition of the complainant-respondent, advised the husband of the complainant respondent to get the ultra sound test done in Anil Hospital and for this purpose, Dr. Wanchoo gave a letter Ex. 6. It was further stated in the complaint that thereafter, the complainant got the ultra sound test of the liver conducted on 14.5.1993 at Anil Hospital, Jaipur and in the report Ex. 7 of Anil Hospital, no metastatic lesion was shown. Thereafter, the husband of the complainant respondent met with Dr. Surana and told him that according to Dr. Wanchoo, the clinical condition of the complainant respondent was alright and it does not tally with the reports given by the appellant and upon this, Dr. Surana told that the appellant have for most modern machines and the reports given by the appellant were more correct. It was further stated in the complaint that thereafter, because of the psychological fear in the mind of the complainant respondent and her family members, Dr. P.K. Wanchoo referred the complainant to Dr. P.B. Desai, Director, Tata Memorial and Research Centre, Bombay through letter Ex. 9 and along with the complainant respondent, her husband and daughter went to Bombay and the tickets are Ex. 10 and Ex. 11. According to the reports given by Tata Memorial Research Centre, Bombay, there was no case of cancer and the reports of liver, lungs and rib were normal and these reports are Exs. 12 and 13. It was further stated in the complaint that Dr. Desai told that there was no metastatic of any kind and asked the complainant respondent to come after one year for check up. It was further stated in the complaint that after completion of entire check up, the husband of complainant respondent met with Dr. Hemendra Surana and shown him the reports of Tata Memorial Research Centre and Anil Hospital and asked him to take the opinion of his Radiologist on the reports given by the appellant. Dr. Surana instead of accepting his mistake, got annoyed. The husband of the complainant respondent was surprised to see that Dr. Surana was defending his Radiologist instead of accepting his mistake and he received great set back on account of the behaviour of Dr. Surana. It was further stated in the complaint that on account of the wrong reports given by the appellant, the complainant and her family members suffered serious set back and for that, the complainant respondent prayed for award of compensation to the tune of Rs. one lac apart from this, she has also claimed Rs. 2,000 as amount spent for journey to Bombay, Rs. 8,000 as amount spent for stay at Bombay and Rs. 2,000 as amount spent for testing, total Rs. 1,12,000. A reply was filed by the appellant on 29.1.1994 stating inter alia that after her operation on 17.4.1982, the complainant respondent was getting her regular check up i.e., sonography, x-ray chest, T.L.C. and other tests done with the appellant. It was further stated in the reply that the reports Ex. 4 and Ex. 5 were given by the appellant. The report Ex. 5 shows that only possibility of metastatic lesion in lungs and bone was expressed and the sign of interrogation was put in the report to suggest the possibility. The report Ex. 5 cannot be said to be wrong or without any basis, in view of the x-ray report Ex. 13 given by Tata Memorial Hospital, Bombay. The report Ex. 13 shows scoliosis in ribs and breast shows fibrocystic mastitic changes with few ductal classification and in face of the opinion expressed in Ex. 13 x-ray report Ex. 5 cannot be said to be without any basis. In fact the observations in the report Ex. 5 and Ex. 13 are not materially different and the difference is only of the language or manner of writing. It was further stated in the reply that the complainant can by producing Dr. Wanchoo or Dr. Desai or any other expert prove that the report Ex. 5 and Ex. 13 are materially different and in absence of the opinion expert, it cannot be said that the opinion expressed in the report Ex. 5 was wrong. It was further stated in the reply that in Sonography or cintography the investigator observes what was seen by his eyes and then on the basis of what he has seen, he interprets it on the basis of his scientific knowledge and experience. The reports of radiology or sonography are meant for assisting the treating doctor in reaching a diagnosis looking to the other clinic symptoms and factors. These reports are not meant for the consumption of the patients nor the patient can or should reach to any conclusion or diagnosis on the basis of the report. In regard to Sonography report Ex. 4, it was stated by the appellant that this report was in great details, while the report Ex. 12 of Bhabha Atomic Centre, Bombay dated 4.6.1993 was quite brief and the opinion expressed therein was in relation to some parts of body. It was also stated in the report that the report Ex. 12 was a report of Cintography and not ultra sound sonography. The processes adopted in ultra sonography and cintography are different and the equipments are also different. It was further stated in the reply that there was no basic difference between the ultra sonography report Ex. 4 given by the appellant and Ex. 7 given by Anil Hospital. There was no material difference as far as the contents of observations are concerned since in report Ex. 7 in the diaphragm of liver two cysts were recorded. In the report Ex. 4 of appellant, these cysts have been given as metastatic lesion which is a difference of interpretation. It was further stated in the reply that the appellant has been doing regular check up of the complainant for the last ten years and the complainant has already been operated for breast cancer. For about 10 years, the appellant, who was doing regular check up, gave normal reports but when some formations were observed (which have also been observed in report Ex. 7), these formations were regarding as metastatic lesion in Ex. 4, to put the treating doctor on caution for further confirmation since the ultra sonography report never regarded as conclusive and has to be further confirmed by biopsy. It was further stated in the reply that even after biopsy the diagnosis of cancer is not 100 per cent sure though after confirmation by biopsy the finding of malignancy is given. It was further stated in the reply that the finding given by Dr. P.B. Desai only says "no clear evidence of metastasis". This finding also does not prove that the reports Ex. 4 and Ex. 5 given by the appellant''s Diagnostic Centre were incorrect or wrong one. Thus, it was prayed that the complaint filed by the complainant respondent be dismissed. After hearing both the parties, the learned District Forum, Jaipur-I, Jaipur through impugned order dated 31.5.1997 allowed the complaint of the complainant-respondent in the manner as indicated above holding inter alia that the reports of ultra sound sonography and chest x-ray of the complainant respondent given by the appellant were wrong. Aggrieved from the said order dated 31.5.1997 passed by the learned District Forum, Jaipur-I, Jaipur, the appellant has preferred this appeal. 3. In this appeal, the main contention of the learned Counsel for the appellants is that the learned District Forum was wrong in arriving at the conclusion that the reports given by the appellant in respect of liver and chest of the complainant respondent were incorrect and wrong as for liver, there was positive report of cysts by Anil Hospital, Jaipur and furthermore, in respect of breast, there was also positive report by Tata Memorial Research Centre, Bombay and thus, findings of the learned District Forum to the effect that the reports given by the appellant in respect of liver and breast were wrong, suffer from basis infirmity, illegality and perversity and hence, the same cannot be sustained and liable to be quashed and set aside and this appeal deserves to be allowed.

On the other hand, the learned Counsel appearing for the respondent has supported the findings of the District Forum that the reports given by the appellant were wrong one and he has further prayed for enhancement of amount of compensation.

WE have heard the learned Counsel for the appellant and the learned Counsel for the respondent-complainant and gone through the entire materials available on record. There is no dispute on the point that as per the complaint filed by the complainant respondent, she was having breast cancer and that was got operated by Dr. P.K. Wanchoo on 17.4.1982 and since then she was getting her regular check up after every six months at the appellant''s diagnostic centre.

THERE is also no dispute on the point that under the treatment of Dr. Wanchoo, on 12.5.1993, the complainant respondent got the sonography, chest x-ray, TLC and other blood tests done at the Diagnostic Research Centre of the appellant and in respect of liver, as per report Ex. 4, it was diagnosed that there was no metastatic lesions (0.5-2.80 cm) and lymphadenopathies in right para aortic and pre oratic region. The word "metastatic" means pert. to metastasis, movement of bacteria or body cells especially cancer cells from one part of body to another. The word "lymphadenopathies" means disease of lymph nodes and the word "aortic" means pert. to aorta or its orifice in the left ventricle of the heart. There is also no dispute on the point that in respect of chest, as per report Ex. 5, the appellant Diagnosis Centre came to the conclusion that there was metastatic lesions (osseous and pulmonary? pleural) left side. Mastectomy left side. The word "pulmonary" means concerning or involving the lungs. The word "osseous" means concerning bones. The word "pleural" means concerning the pleuraserous membrane that enfolds both lungs and is reflected upon the walls of the thorax and diaphragm. There is also no dispute on the point that Dr. Wanchoo was not satisfied with the reports Ex. 4 and Ex. 5 given by the appellant on 12.5.1993 in respect of liver and breast and, therefore, he advised for re-checking/testing by another Diagnostic Centre and thereafter, on 14.5.1993, the complainant respondent had undergone test with Anil Hospital, Jaipur and as per report Ex. 7 of Anil Hospital, no metastasis was seen, but in liver two cysts were found.

THERE is also no dispute on the point that thereafter, Dr. Wanchoo referred the case of the complainant respondent for further test at Tata Memorial Hospital, Bombay and the complainant respondent had undergone for further test on 4.6.1993 at Bombay and as per report Ex. 12 of the Tata Memorial Centre, both lobes of the liver were found normal in size and shape. THERE is another report of Tata Memorial Hospital, Bombay dated 3.6.1993 (Ex. 13) where in respect of chest, it was opined that there was evidence of left sided mastectomy. Upper Zone shows fibrotic koch''s with pulling of mediastinus and left hilum upwards. Dorsal spine shows considerable scoliosis with concavity to the left side Right sided breast shows fibrocycstic mastitis changes with few ductal calcification. The word "mastitits" means inflammation of the breast. The word "fibrocycstic" means lumps in the breast. The word "mastectomy" means excision of the breast. The word "mediastinum" means a septum, or cavity between two principal portions of an organ. The mass of organs and tissues separating the lungs. It contains the heart and its large vessels trachea, esophagus, thymus, lymph nodes and connective tissue.

THE question for consideration is whether in the facts and circumstances just narrated above, the findings of the learned District Forum that the reports Ex. 4 and Ex.5 given by the appellant in respect of liver and chest of the complainant respondent were wrong, are liable to be confirmed one or not. Before proceeding further, something should be said on negligent diagnosis. Negligent diagnosis:

The duty of a medical practitioner arises from the fact that he does something to a human being which is likely to cause physical harm unless it is done with proper care and skill. There is no question of warranty undertaking or profession of skill. The standard of care and skill to satisfy the duty in tort is that of an ordinary competent medical practitioner exercising the ordinary degree of professional skill. A professional charged with negligence can clear himself if he shows that the acted in accordance with general and approved practice. It is not required in discharge of his duty of care that he should use highest degrees of skill, since the same may never be acquired by each and every individual. Even deviation from normal professional practice in peculiar and special circumstances is not necessarily evidence of negligence. As regards the standard of care required for the medical man it can be stated that a mistaken diagnosis is not necessarily a negligent diagnosis. A practitioner can only be held liable in this respect if the diagnosis is so palpably wrong as to prove negligence that is to say if his mistake is of such a nature as to imply an absence of reasonable skill and care on his part, regard being had to the ordinary level of skill in the profession.

FOR wrong diagnosis, a person can be held liable in two conditions : (i) That wrong diagnosis caused injury to the patient. (ii) That a practitioner can only be held liable in this respect if his diagnosis is so palpably wrong as to prove negligence i.e., if his mistake is of such nature as to imply an absence of reasonable skill and care on his part. Reasonable skill is equated with ordinary or average level of skill in the profession.

It may be stated here that the test of ultra sound or CT could provide a presumptive diagnosis and they could not be said to be final diagnosis as for positive diagnosis of metastatic disease, the best method is of biopsy of that part of the body.

IT may further be stated here that the report of the Radiologist/Sonologist is only an opinion based on impression recorded by the machine. Sometimes, if the report is not to the satisfaction of the treating doctor, repeat tests are done. Apart from this, it is also the duty of attending doctor that he should not entirely depend on reports. Keeping the above principles in mind, the facts of the present case are being examined. In the present case, as already stated above, the complainant respondent was having breast cancer and she got operation of her breast cancer on 17.4.1982 by Dr. P.K. Wanchoo, who is known in the SMS Hospital as an expert in giving surgical treatment for cancerous diseases and since then, complainant respondent was getting her regular check up at the appellant''s Diagnostic Centre. On 12.5.1993, the complainant respondent got her check up at appellant''s Diagnostic Centre and through report Ex. 4, it was opined by the appellant that there was metastatic lesions in liver and through report Ex. 5, it was further opined by the appellant that there was metastatic lesions in lungs and bones and further, lateral part of 3rd rib was eroded with osteolytic lesion. Thus, through reports Ex. 4 and Ex. 5, the appellant suggested development of cancer in lungs, rib and liver of the complainant respondent. Thereafter, the respondent complainant contacted with Dr. Wanchoo, who, through letter Ex. 6 opined that re-testing be got done at Anil Hospital and thereafter, on 14.5.1993, the complainant respondent got re-testing at Anil Hospital, Jaipur, where as per report Ex. 7, it was opined that there was no metastasis, but two cysts were found in the liver. Thereafter, Dr. Wanchoo referred the complainant respondent to Tata Memorial Hospital, Bombay and upon this, complainant respondent got her check up at Tata Memorial Hospital, Bombay where as per report Ex. 12, it was opined that both lobs of the liver were normal in size and shape and as per report Ex. 13, it was opined that Right sided breast shows fibrocystic mastitis changes with few ductal calcification.

IN our considered opinion, looking to the entire facts and circumstances of the case, the appellant could not be held liable in the present case because of the following reasons: (i) That the complainant respondent, after operation of her breast cancer on 17.4.1982 by Dr. Wanchoo, was getting her medical check up at the appellant''s Diagnostic Centre regularly for the last ten years. (ii) That as per report Ex. 4 of the appellant, there was metastatic lesions in liver (0.5-2.80 cm) and in the report Ex. 7 of Anil Hospital, Jaipur, no metastasis was seen, but two cysts were found in liver and it appears that for the cysts, the appellant''s Diagnostic Centre had diagnosed them as metastatic lesions. Therefore, it appears that there was no material difference between the report Ex. 4 given by the appellant and report Ex. 7 given by Anil Hospital as two cysts were found in the report Ex. 7 and these cysts were shown as metastatic lesions by the appellant''s Diagnostic Centre in the report Ex. 4. Furthermore, no doubt as per report (Ex. 12) of Tata Memorial Hospital, Bombay dated 4.6.1993, liver of the complainant respondent was found normal, but it appears that the method of examination adopted by the Tata Memorial Hospital and appellant''s Diagnostic Centre was different one. Ex. 4 given by the appellant was ultra sonography report and Ex. 12 given by Tata Memorial Hospital was a report of cintography and not ultra sound sonography. The processes adopted in ultra sonography and cintography are different and the equipments are also different. Therefore, if there was some difference between the report Ex. 4 of the appellant and report Ex. 12 of Tata Memorial Hospital, Bombay it cannot be said that the report Ex. 4 of the appellant was absolutely wrong one. Apart from this, the test of ultra sound or CT could provide a presumptive diagnosis and they could not be said to be final diagnosis as for positive diagnosis of metastatic disease, the best method is of biopsy of that part of the body. From that point of view also, the report of the appellant Ex. 4 could not be said to be absolutely wrong one. (iii) That as per report Ex. 5, the appellant has reported possibility of metastatic lesions in lungs and bones and further, lateral part of 3rd rib was eroded with osteolytic lesion and sign of? was also put. IN the report of Tata Memorial Hospital, Bombay Ex. 13, it was reported that right sided breast shows fibrocystic mastitis changes with few ductal calcification. Therefore, looking to the findings recorded in the report Ex. 13 of Tata Memorial Hospital, Bombay, it cannot reasonably be inferred or presumed that the report Ex. 5 given by the appellant was absolutely wrong one. (iv) That the present case does not show that the doctor of the appellant''s Diagnostic Centre was not possessed of skill and knowledge and he had failed anywhere in his duty. Merely on the basis of diagnosis which was not suitable to the patient, there cannot be any presumption of negligence on the part of the centre. (v) That looking to the entire facts and circumstances of the case and looking to the reports given by the appellant, Anil Hospital, Jaipur and Tata Memorial Hospital, Bombay, it cannot reasonably be inferred or presumed or gathered that the reports Ex. 4 and Ex. 5 given by the appellant were palpably wrong one. Furthermore, a mistaken diagnosis is not necessarily a negligent disagnosis. No human being is infallible and in the present state of science even the most eminent specialist may be at fault in detecting the true nature of the disease. The diagnosis made by the appellant cannot be regarded so palpably wrong as to prove negligence.

FOR the reasons stated above, the findings of the learned District FORum that the reports Ex. 4 and Ex. 5 given by the appellant were wrong one, cannot be sustained and liable to be quashed and set aside, as they suffer from basic infirmity, illegality and perversity and hence, this appeal deserves to be allowed and the impugned order of the learned District FORum is liable to be quashed and set aside and the complaint of the complainant respondent deserves to be dismissed. Accordingly, the Appeal No. 1673/1997 filed by the appellant Surana Diagnostic Research Centre is allowed and the impugned order of the learned District FORum, Jaipur-I, Jaipur dated 31.5.1997 is quashed and set aside and the complaint of the complainant respondent stands rejected. Appeal No. 1539/97 Smt. Shashi Kapoor v. Surana Diagnostic Research Centre This appeal has been filed by the complainant for enhancement of amount of compensation.

Since the complaint filed by the complainant has been rejected by this State Commission while deciding above Appeal No. 1673/1997, therefore, question of enhancement of amount of compensation does not arise and this appeal filed by the complainant deserves to be dismissed. Accordingly, the Appeal No. 1539/1997 filed by the complainant Smt. Shashi Kapoor is dismissed. Appeal No. 1673/97 allowed. Appeal No. 1539/1997 dismissed.