ODISHA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CUTTACK
Dr. D.P. Choudhury, President
Dr. Subrat Kumar Jena – Appellant
versus
Sri Subash Chandra Dash – Respondent
First Appeal No.A/56 of 2007
(Arisen out of Order Dated 20/12/2006 in Case No.CD/24/2003 of District Khordha)
Decided on 8.11.2021

IMPORTANT POINTS
1) A simple lack of care, error of judgment or accident, is not proof of negligence on part of a medical professional. So long as a doctor follows a practice acceptable to the medal profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available.
2) Complainant failed to prove deficiency of service or negligence on part of Appellant doctor.

Headnote:

Consumer Protection Act, 1986 – Section 15 (Consumer Protection Act, 2019 – Section 41) – First Appeal against Order passed by Distt. Commission - Complainant’s father required surgical treatment for which he had been to Kalinga Hospital & consulted the appellant doctor and then Appellant conducted operation of Bhimsen Dash in respect of tumour and removed bone of lower jaw - Appellant referred Bhimsen to Dr. P.K. Das, Oncologist at Acharya Harihar Regional Cancer Centre - Bhimsen was given Radio therapy and Chemo-therapy and finally expired - Respondent alleged negligence on part of Appellant which led to his father’s death – Complaint filed before Distt. Commission which directed Appellant to pay a total amt. of Rs. 3,00,000/- to the Respondent – Appeal filed – Observations: A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field - A simple lack of care, error of judgment or accident, is not proof of negligence on part of a medical professional. So long as a doctor follows a practice acceptable to the medal profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available – Findings: Appellant doctor has gone through biopsy rpt. and opined on the basis his skill as surgeon & not as Super Specialist Oncologist – Appellant not only treated Bhimsen Dash at Kalinga Hospital but also treated outside the Kalinga Hospital & based on latest report sent Bhimsen Dash for cancer treatment to Dr P.K. Das - Complainant failed to prove deficiency of service or negligence on part of Appellant doctor –Commission observed that in absence of Kalinga Hospital or Chief Pathologist/Pathologist whose reports are subject matter, it is not possible castigate liability on Appellant – This case is bad for non-joinder of necessary party also - Commission is of the view that the Distt. Forum has not taken proper material and the law into consideration and arrived at a wrong conclusion.

Held: On 19.2.2002, the OP suggested Bhimsen for FNAC test and to consult the Dental Surgeon. It is stated that OP also asked him to come to his clinic ‘Doctor House’ at Cuttack instead of Kalinga Hospital. It is alleged that even after the FNAC report was positive, the OP did not suggest Radio therapy treatment but on 22.2.2002 prescribed some medicines. On 28.2.2002, the OP advised Bhimsen for removal of three upper teeth by Dentist and go for biopsy test. Complainant alleged that his father Bhimsen had been to the Dental Surgeon to remove three upper teeth on 4.3.2002 and the biopshy report came negative. In the meantime, there is a fistula developed on the left cheek of Bhimsen who met the OP on 22.3.2003 and the OP Doctor immediately operated by removing fistula and sent it for biopsy test. On 24.3.2002 and 28.3.2002, Bhimsen visited the OP who conducted dressing and advised to come after biopshy report. After obtaining biopsy report, on 30.3.2002, OP referred Bhimsen to Dr.P.K.Das, Oncologist at Acharya Harihar Regional Cancer Centre, Cuttack. There Bhimsen was given Radio therapy and Chemo-therapy and finally he expired on 4.10.2002. Complainant alleged that due to negligence of the OP - Doctor he was not given post operative Radio-therapy treatment and gradually, it led to death of his father. It is the case of the complainant that his father has died due to sole negligence of the OP. Had his father survived, he would have got regular job and maintained his family. So he filed the complaint for damages alleging negligence of OP – doctor and also compensation for mental agony and damages to his family with other miscellaneous expenses for total sum of Rs.4,60,000/-.

After hearing both parties, the learned District Forum passed the following impugned order:-

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In the result, the complaint is allowed on contest against the OP. The OP is hereby directed to pay the following to the complainant.

1. Expenses towards purchase of medicines Rs.1,00,000/-.

2. Damage towards mental agony Rs.40,000/-

3. Damage caused to the family due to death of the deceased Rs.1,50,000/-

4. Miscellaneous expenses Rs.5,000/-

5. Litigation cost Rs.5,000/-

Total Rs. 3,00,000/-

The aforesaid sum be paid to the complainant by the OP within a period of two months from the date of communication of this order failing which the OP is liable to pay interest at the rate of 10% per annum on the awarded amount of Rs.3,00,000/- till the date of payment.”

The aforesaid view of the learned District Forum is related to the slides, blocks and specimen collected from Bhimsen for biopsy as examined in the Pathology Department of Kalinga Hospital and report prepared thereof. Primarily, learned District Forum has observed basing on report dated 19.12.2005 of Acharya Harihar Regional Cancer Centre that OP – Doctor has not properly read the report of the Pathologist for which he did not advice the concerned deceased to go for post operative radio-therapy. But report of Acharya Harihar Regional Cancer Centre dated 19.12.2005 shows that gross specimen was not available for which such report cannot be sacrosanct to be solely reliable to consider the same. However, this Commission on the request of the parties have directed Kalinga Hospital to send the slides, specimen and blocks for pathological examination to the Tata Memorial Hospital (TMC) for opinion. It appears from the complaint that the complainant’s father was operated by the OP – Doctor at Kalinga Hospital on 6.12.2001 and was discharged on 11.12.2001. It is the case of the complainant that the lower jaw tissue was sent for biopsy. The document dated 15.12.2001 shows that the OP – Doctor allegedly gave wrong noting about biopsy in the prescription and mentioned “Node negative” although it was allegedly positive and accordingly prescribed medicines. This observation of the OP – Doctor on 15.12.2001 is the crux of the matter. The biopsy report diagnosised dated 15.12.2001 of Kalinga Hospital on slides, blocks and specimen collected on 6.12.2001 of deceased is as follows:-

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Microscopic Diagnosis

Well differentiated squamous cell carcinoma of left gingival. Extension of the tumour laterally is identified however the striated muscle are spared. Extension of the tumor medically is identified. Extension of the tumour to the salivary gland is seen. The antirior margin, posterior margin and the lymphnode are free from tumor invasion.”

The aforesaid entire events suggest that the OP – Doctor not only treated Bhimsen Dash at Kalinga Hospital but also treated outside the Kalinga Hospital and has followed biopsy report from time to time and finally referred the deceased to Dr P.K.Das for cancer treatment.

The aforesaid answers clearly show that they have received only slides without any blocks or specimen from the Acharya Harihar Regional Cancer Centre. Basing on that report was prepared. It is clear from observation of TMC that the report of the Chief Pathologist of Kalinga Hospital was not self speaking to exclude post of radio-therapy. However, while elaborating the procedure, they usually require slides, blocks and specimen collected from patient. But in the instant case, they have opined on slides as no blocks or specimen received from Acharya Harihar Regional Cancer Centre. At the same time to question no. 3, they answered that pathological report would have been more elaborative to help surgeon to make the decision to offer post operative radio therapy. At last they only opined that post operative radio therapy would have been given. When their opinion is based on slides and a surgeon cannot take a opinion for post operative radio therapy in such report, their opinion with regard to applicability of post operative radio therapy is inconclusive. Besides, they have come to a conclusion on the basis of slides examined by Pathologist of TMC and Histo-pathology report of the Tata Memorial Hospital at the last part has clearly stated that nodes are negative for metastasis, when the slides examined on 20.8.2008. It is further observed that when OP – Doctor is a surgeon and report dated 15.12.2001 was not speaking one to take a view whether node is positive and histopathy report of TMC is clear to show that node is negative, the opinion of OP – Doctor on report dated 15.12.2001 of Chief pathologist or Pathologist of Kalinga Hospital cannot be a negligence for not sending Bhimsen Dash for post operative radio therapy. Because Op – doctor has gone through biopsy report dated 15.12.2001 and opined basing on his skill as surgeon not as Super Specialist Oncologist. Moreover, he has taken professional case and finally basing on latest report sent Bhimsen for cancer treatment. So complainant has failed to prove deficiency of service or negligence on the part of OP – Doctor.

Besides, it is found that Kalinga Hospital and Chief Pathologist or Pathologist of that hospital are not made parties to the case. It is held in Pooja Sharma Case (Supra) at 12.4.21 which is as follows:-

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12.4.21. It is well established that a hospital is vicariously liable for the acts of negligence committed by the doctors engaged or empanelled to provide medical care. It is common experience that when a patient goes to a hospital, he/she goes there on account of the reputation of the hospital, and with the hope that due and proper care will be taken by the hospital authorities. If the hospital fails to discharge their duties through their doctors, being employed o job basis or employed o contract basis, it is the hospital which has to justify the acts of commission or omission on behalf of their doctors.”

With due regard to the said decision, it is observed that in absence of Kalinga Hospital or Chief Pathologist/Pathologist whose reports are subject matter, it is not possible castigate liability on OP – doctor. On the other hand, case is bad for non-joinder of necessary party.

In view of the above discussion, this Commission is of the view that the learned District Forum has not taken the proper material and the law into consideration and has arrived at a wrong conclusion. Therefore, this Commission has no hesitation to set aside the impugned order and accordingly, it is set aside. (Paras 5, 8, 23, 25, 28, 30 & 31)

Result: Appeal allowed & Order of the Distt. Commission is set aside.