Oral Order ( As per R.Lakshminarsimha Rao, Member)
1. These cross appeals are preferred by the opposite parties F.A. 403/2010 against granting of compensation while the complainant preferred F.A. 1182/2010 against inadequacy of compensation.
2. The parties are described as arrayed in the complaint in order to avoid confusion in narrating the facts.
3. The respondent filed complaint seeking relief of compensation on the premise that the appellants indulged in medical negligence in conducting pathological tests and by issuing report stating that he was suffering from Adenocarcinoma.
4. The respondent on the advice of doctor K.Ramesh Naidu of Nikita Hospital approached the appellant no.1 of which the second appellant is the consultant pathologist. On 19.06.2008 the tests were conducted at the first appellant diagnostic centre and report was issued with the result that the respondent was suffering from âDifferentiated Adenocarcinoma and the doctor who advised the respondent for the test informed him what all is mentioned in the report. The respondent had undergone tests at Soumya Multi Speciality Hospital on 30.06.2008. On request made for several times made by the respondent, the first appellant handed over the specimen blocks to the respondent on 15.07.2008 who entrusted it to Soumya Multi Specialty Hospital.
5. The respondent had undergone whole body PET CT SCAN which did reveal that the respondent was not suffering from carcinoma. The respondent got issued notice through his advocate on 24.02.2008 to the appellants seeking payment of compensation including the amount incurred towards the medical expenditure. The respondent claimed that the appellant did not take minimum care while conducting the test and due to their negligence he suffered a lot and had to approach another doctor to know whether he was suffering from carcinoma.
6. The appellant contended that doctor Ramesh Naidu clinically diagnosed the respondent with Cholelithiasis, Peritoneal Deposits-1, Excised Gallbladder for HPE II Peritoneal deposits for HPE with a clinical diagnosis of Tuberculosis/Malignancy. The appellants conducted the tests and issued report on 19.06.2008 with the impression, âBased on the clinical diagnosis, gross and microscope appearances, Pathologically diagnosed the complainant I Gall bladder-Chronic Cholecystitis. No evidence of Malignancy-II . Deposits of moderately differentiated Aden-carcinomaâ The second appellant by way of abundant caution had sent one slide and one paraffin block of peritoneal nodules to SRL Ranboxy Pathology Laboratories, Mumbai for second opinion. The second appellant discussed the matter with doctor Ramesh Naidu and informed the respondent that the diagnostic findings are indicative and not absolute and might not be totally correct.
7. The second appellant even before receiving the report from Ranboxy Laboratory, had revised his earlier report dated 19.06.2008 with an addenda on 3.07.2008 opining that clinical correlation was advised and IHC Marker Cytokeratin or other markers were recommended for confirmation of epithelial nature of tumour and the slide and block were referred to SRL Ranboxy for expert opinion. The appellants delivered duplicate HPE Report dated 3.07.2008 and experts opinion of SRL Ranboxy. The appellants advised the respondent to consult the doctors at Soumya Multi Speciality Hospital to confirm veracity of diagnostic findings and to take follow up action. The appellants are of the opinion that the respondent has not been in pink of health and he has been taking treatment after evaluation.
8. The respondent has filed his affidavit and the documents,ExA1 to A10. The second appellant filed his affidavit and the documents,ExB1 to B4.
9. The District Forum allowed the complaint on the premise that the appellants were negligent in exercising care in arriving at proper diagnosis and the District Forum observed that the appellants tacitly admitted their first report was incorrect.
10. Feeling aggrieved by the order of the District Forum, the opposite parties have filed the appeal contending that the initial pathological tests were conducted basing on the reference made by the respondents doctor who initially diagnosed clinically. The appellants in the report had not mentioned that there is no lesion and referred for confirmation. The appellants had sent the slides and blocks to Ranbaxy, Mumbai for further examination and obtaining detailed report without charging any amount from the respondent. The respondent did not furnish complete details of various tests undergone. The findings of the report of the appellants and Rabaxy resemble each other.
11. The points for consideration are:
1.Â Â Whether the appellant committed medical negligence while diagnosing the disease of the second respondent?
2.Â Â To what relief?
12. POINT NO.1:Â Â There is not much dispute between the parties in regard to Dr.Ramesh Naidu referring the respondent for diagnostic tests at the first appellant diagnostic Centre and the tests being conducted on 19.06.2008 by the second appellant who is the consultant pathologist of the first appellant diagnostic Centre and the appellants issuing report with the following impression.
CLINICAL DIAGNOSIS Cholelithiasis
I Excised gall bladder for HPE
II Peritoneal deposits for HPE
GROSS APPEARANCE I Received gall bladder of 6X2.5cms
II Received two tine fragments of tissue of 0.2x0.2cms embedded in toto
I Sections from gall bladder revealed Rokitansky Aschoff sinuses, vascular congestion and lymphocytic infiltrates No evidence of atypical features
II Sections revealed fibromuscular tissue showing deposits of adenocarcinoma with tumor tissue arranged in irregular tubules separated by collagenous stroma
13. The District Forum observed that the appellants did not exercise due care while conducting the test and issuing the report which they attempted to cover under the garb of revised report dated 3.07.2008. The District Forum recorded the findings as under:
After careful perusal of the case record, we find that by means of their report dated 19.6.2008 i.e., Ex.A1, the Opposite Parties 1 and 2 diagnosed the Complainants case as âDeposits of Moderately Differentiated denocarcinoma.â Alarmed by this report, the Complainant ran from pulled to post, went hastily to Hyderabad on 30.6.2008 and contacted the Super Speciality Hospital there, so incurred expenditure as well as anxiety. But on 3.7.2008, the Opposite Parties prepared another report, in the garb of a revised report (Ex.B3), and palmed it off on the Complainant on a later date, stating in that report to the effect that their earlier report dated 19.6.2008 could not confirm anything and not only because of their revised opinion but also based on the expert opinion report of SRL Ranbaxy, the âPatent has been advised further assessmentâ. Thus, the Opposite Parties tacitly admitted that their 1st report dated 19.6.2008 was wrong. But very peculiarly, in practice, their revised report dated 3.7.2008 also sound a false alarm. As the said revised report ExB3 carried the direction âPatient has been advised further assessment,â the said patient, who is none other than the present complainant, once again ran frightened to Hyderabad and the Super Speciality Diagonostic Center therein i.e., Vijaya Diagnostic Center and spent a huge amount of Rs.25,000/- and got PET CT SCAN DONE. Ofcourse the tests established the fact that the Complainant did not have Cancer. As such, it is prima-facie clear that the Opposite parties 1 and 2, by their deficiency of service, have created panic in the mind of the Complainant and frightened by their wrong reports, not once but twice, the Complainant ran helter skelter and suffered a lot financially, physically, and mentally by running from one Super Speciality Hospital to another Super Speciality Hospital for a period of almost 2 months. So, the Complainant is rightly entitled to substantial compensation. Moreover, as the Complainant is forced to file this complaint because of the deficiency of service on the part of the Opposite Parties, he is entitled to costs of this complaint too.
14. In Kusum Sharma, guidelines which had already been framed in the earlier cased had been crystallized as under:
1. The medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise 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.
2. a medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
3. In the realm of diagnosis and treatment, there is scope for genuine difference of opinion and one professional doctor is notÂ clearly not negligent merely because his conclusion differs from that of other professional doctor.
15. After going through the diagnostic report of the patient, a doctor is supposed to correlate the values of the test report with his clinical findings and then come to a conclusion as to the diagnosis and the treatment required to be administered. The respondent contends that he has gone through the report issued by the second appellant and he was shocked to know that he was diagnosed with Adeno carcinoma. The respondent had undergone tests in Soumya Super Specialty Hospital on 30.06.2008 and on the advice of the doctors at the hospital the respondent requested the appellant no.1 to hand over the specimen. The appellants instead of handing over the specimen to the respondent, insisted on a letter from Nikita Hospital and on submission of the letter on 3.07.2008 the appellants handed over the blocks to the respondent on 15.07.2008 and thereafter the respondent delivered the specimen of blocks to Soumya Hospital where he was informed that he had to undergo PET CT SCAN of whole body.
16. We have dealt with the finding of the District Forum to show how hurriedly the appellants conducted the test and jumped to the opinion that the respondent was suffering from Adenocarcinoma. It is pertinent to note that the appellants did not state as to when they had sent the specimen for confirmation of their conclusion. The appellants attempted to support their act of issuing the report without advising for correlation on the premise that as abundant caution they had sent the specimen to Mumbai for better evaluation and issued addendum dated 3.07.2008. The appellants claimed to have done all this act only after the respondent approached him with a request for handing over of the specimen to him as required by the doctors at Soumya Hospital. Thus, the deficiency in service on the part of the appellants in conducting the tests and issuing the report is established.
17. The appellants undergoing tests at Soumya Hospital is made the basis to award a sum of `75,000/- against the appellants which by any standard, in our opinion is excessive and out of all proportions. The respondent was not administered treatment for Adeno carcinoma. The District Forum ought not to have awarded such an amount in the teeth of the appellants contention that âthey are of the firm opinion that the complainant is not in pink of health and they reliably learnt that the complainant has been taking treatment after evaluation. The respondent had not chosen to controvert the statement of the appellants about his undergoing treatment.
18. Â The Honble Supreme Court âState of Gujarath vs Shantilal Mangaldasâ AIR 1969 SC 634. Held the compensation to meanââ¦..In ordinary parlance the expression compensation means anything given to make things equivalent; a thing given to or to make amends for loss recompense, remuneration or pay, it need not therefore necessarily in terms of money. The phraseology of the Constitutional provision also indicates that compensation need not necessarily be in terms of money because it expressly provides that the law may specify the principles on which, and the manner in which , compensation is to be determined and given . If it were to be in terms of money along, the expression âpaid would have been more appropriateâ.
19. The Supreme Court held that the compensation to be awarded is to be fair and reasonable. In âCharan Singh vs Healing Touch Hospital and othersâ 2000SAR(Civil) 935 the Apex Court stressed the need of balancing between the compensation awarded recompensing the consumer l and the change it brings in the attitude of the service provider. The Court held âWhile quantifying damages , consumer forums are required to make an attempt to serve ends of justice so that compensation is awarded, in an established case, which not only serves the purpose of recompensing the individual, but which also at the same time aims to bring about a qualitative change in the attitude of the service provider. Indeed calculation of damages depends on the facts and circumstances of each case. No hard and fast rule can be laid down for universal application. While awarding compensation, a Consumer Forum has to take into account all relevant factors and assess compensation on the basis of accepted legal principles, on moderation. It is for the Consumer Forum to grant compensation to the extent it finds it reasonable, fair and proper in the facts and circumstances of a given case according to established judicial standards where the claimant is able to establish his chargeâ.
20. In view of the principle laid in the aforementioned cases, the award of an amount of `75,000/- in the circumstances where the respondent had not undergone treatment based on the report issued by the appellants and he is stated to have been under the treatment subsequent to evaluation made at Soumya Hospital appears to be excessive. We are inclined to reduce the amount awarded by the District Forum from Rs.1, 00,000/- to `50, 000/- .Accordingly, the amount awarded by the District Forum is liable to be modified.
21. In the result, the appeal F.A.No.403 of 2010 is allowed. The order of the District Forum is modified. The appellants/first opposite parties are directed to pay an amount of Rs.50,000/- . The rest of the order of the District Forum is confirmed. The appeal preferred by the complainant F.A. 1182/2010 is dismissed. There shall be no order as to costs in the appeal. Time for compliance four weeks.