1. THIS judgment will decide two Revision Petitions as the facts are similar, which are filed against the impugned orders of the State Consumer Disputes Redressal Commission (in short, ''State Commission '') in Appeal No. 18 of 2010 and Appeal No. 39 of 2010 .The State Commission dismissed the Appeal filed by the Petitioner and allowed the Appeal filed the Respondent for enhancement of compensation against order of the District Consumer Disputes Redressal Forum (in short, ''District Forum ''). We draw the facts from RP/3242 of 2013.
2. THE complainant Chandra Shekhar Pandey ''s wife since deceased Smt. Shanti Pandey(herein ''''patient '''') had undergone a Ultra -Sonography test (USG) by Dr. Salil Chandra,(OP -1) and was diagnosed as a case of gall stones of 6x6 mm and 6x9mm size in her gall bladder. Thereafter, as per advise of Dr. Chakarpani Pandey, physician the Complainant took his wife to the surgeon Dr. R. K. Pandey(the petitioner/the OP -2), who advised surgery for removal of her gall bladder at the cost of Rs.10,000/ -. Accordingly, the patient Smt. Shanti Pandey was admitted in Saraf Hospital, Gorakhpur on 16.11.2000 for surgery by Dr. R.K. Pandey. During operation, Dr. Pandey, did not find any stone in the gall bladder, but noticed that the gall bladder was malignant (Cancer). Dr. Pandey proceeded to conduct surgery for removal of gall bladder without calling any cancer specialist. Then the patient was kept in Saraf Hospital (OP -3) for nine more days under observation without any treatment of cancer, and she expired on 25.11.2000. Thus, the Complainant filed a complaint before District Forum, Gorakhpur with allegations that, Dr. Salil Chandra (OP -1) had issued wrong report of gall stones, while Dr. R. K. Pandey knifed against norms of surgery of a malignant part and OP -3 Saraf Hospital who kept the patient unnecessarily for 9 days. The Complainant prayed for total compensation of Rs.3,00,000/ -
The District Forum dismissed the complaint. Therefore, aggrieved by the order, the complainant filed the First appeal 1998/2004 before the State Commission by reiterating that Dr. Salil Chandra and Dr. R. K. Pandey were guilty of medical negligence.
3. THE State Commission, Lucknow, UP held Dr. R. K. Pandey (OP -2) and Saraf Hospital (OP -3) guilty of medical negligence and deficiency in service. State Commission ordered the OP -2 and 3 to pay jointly and severally .compensation of Rs.2,55,000/ - and Rs.10,000/ - as litigation cost.
4. AGGRIEVED by the impugned order dated 12.05.2010 of State Commission the OP 1 and 3 approached the Hon ''ble High Court, Allahabad by filing Writ Petition (c) No 36953/2010 which granted the stay in favor of petitioner and on 26.07.2013 the writ petition was dismissed on the ground of alternate remedy. The Hon ''ble High Court also granted liberty to the Petitioner to file the Appeal and Revision Petition within 6 weeks along with application under Section 5 of the Limitation Act. Accordingly, the petitioner filed this revision on 9.9.2013.
We have heard the counsel for the parties. The counsel for the complainant vehemently argued on the main point of limitation as there is a delay of 1125 days in filing this revision petition, hence it should be dismissed. Also, on merit, he reiterated his contention of medical negligence against all the OPs which led to the death of his wife.
5. THE counsel for OP -2 argued that the delay was not an intentional one. He brought our attention towards the application filed by the petitioner/OP -2. The reason stated that, OP -2 has approached the High Court by filing a writ petition against the order of State Commission, which was dismissed by High Court on the ground of alternate remedy and granted him liberty to file revision within 6 weeks as per law under Section 5 of the Limitation Act. The petitioner filed this revision accordingly within 6 weeks. The Counsel relied upon the judgments of Hon ''ble Supreme Court in the case,
a) Shyamlal Kanti Danda Vs. Chunilal Chaudhary, AIR 1984 SC 1732 b) Balbir Singh Vs. Bogh Singh AIR 1974 SC 650. Therefore, we are of considered view that it is a bonafide explanation to the delay of 1125 days in filing this Revision Petition. Accordingly, we condone this delay in the interest of justice.
6. ON merits, we have perused the written objections of OP -1 Dr. Salil Chandra, filed before this commission on 15.04.2014. He has contended that the Ultrasound (USG) report was correct. He has explained it as:
'''' That stone or stones present in the gall bladder irritate the Mucosa present in the gall bladder and can change the progress of disease. Continuous irritation of Mucosa by stone or stones can convert it in malignancy. But in medical field of OP -1 i.e. Radiology there is no provision of such predictions on the basis of ultrasound and neither Medical Science permits such prediction. It is also important to note that final decision regarding confirmation of disease is done through ''Histopathology '' in which confirmation is done through tissue. Which is common parlance is biopsy. ''''
He has also expressed that the USG as sensitivity of 91% - 98% and about 5% falls on negative reports are possible due to:
a) Improper fasting/preparation b) Excessive Bowel Gas c) Food in Bowel d) Reverberation artifacts Also stated that due to thickness of gall bladder wall the diagnosis may be diagnosed as: (i) Acute/Chronic Cholecystitis, or (ii) XanthogramlometiousCholecystitis, or (iii) PolyparAdenomyomatosis.
7. THUS , the USG has its limitation. He has also stated that he had experience of more than 18 years in his profession by which he exercised reasonable degree of skills in diagnosis of that patient. He had relied upon Bolam ''s Test, Jacob Mathews case to substantiate his stand of no negligence. He has also advised the patient for a free follow up, but patient never turned up. Apart from the diagnosis of USG, proper clinical check -up through biopsy, CT Scan, or through MRI is always recommended.
8. THE counsel for OP -2 argued that, the OP -2, Dr. R. K. Pandey, is a surgeon, having a wide experience of surgery for about 22 -23 years and he is well versed with the modern methods of surgery. It was an admitted fact that he operated the case for gall bladder stone by relying upon the USG report and clinical findings. At the time of performing operation, he found that the gall bladder and surrounding area was suspicious of cancer and he could not find any gall stone. Therefore, he took a biopsy for the proper diagnosis of the cancerous growth and to decide further line of treatment. The mode of future surgical treatment or non -surgical management by Chemo/Radio therapy of such patient depends upon the confirmed histo -pathological diagnosis of malignancy. Thus, we are of considered view that, OP -2 was correct in his treatment and decision, and it was as per standard of medical practice and we don ''t find any act of negligence on the part of OP -2 Dr. Pandey.
In our opinion, Dr. Salil Chandra ''s affidavit appears to be an exaggerated one. No doubt, he is a well -qualified Radiologist and has an experience of about 2 decades in his concerned Specialty. However, it is quite surprising to note as to how he was failed to diagnose gall bladder cancer? It was not a reasonable care and caution. It was not an error of judgment but it was a mistake and wrong diagnosis. The submissions of OP -1 are nothing but beating around the bush. It is against the Bolam ''s principle. We disagree with his clarification about, the thick gall bladder wall or other differential diagnosis. Thus, he is responsible for the wrong committed by him.
9. THE third point in this Revision Petition is whether the Saraf Hospital is liable? The Counsel for the Saraf Hospital argued that his Hospital has no role in the treatment of the patient. The OP -1 & 2 were Consultants who treated the patient in his hospital having proper facilities. Hence, the hospital should not be held liable for the wrongs, if any.
10. WE have given thoughtful consideration and referred few medical text books on Pathology and Surgery. We have relied upon several decisions on medical negligence pronounced by Hon ''ble Supreme Court. It is a well settled law laid down by the Hon ''ble Supreme Court in case of Dr. Laxman Balkrishna Joshi Vs. Dr. Triambak Babu Godbole and Another (1969) 1 SCR 206, that a doctor when consulted by a patient owes him certain duties, namely: -
a) Duty of care in deciding whether to undertake the case. b) A duty of care in deciding what treatment to give. c) A duty of care in administration of that treatment.
The OP -2 Dr. R. K. Pandey, acted with proper care and his clinical acumen. He has not deviated from the standard of medical practice. We hold the OP -1, Dr. Salil Chandra, liable as he failed to diagnose gall bladder malignancy and the metastasis by USG study. Therefore, if USG diagnosis would have been correct, the operation for gall stone might have been deferred by OP -2. Even otherwise, the OP -2 was doing surgery after opening the abdomen by taking only biopsy; and waited for the histopathology report. This is a recognized medical practice. The patient was in advanced stage of cancer, thus the death of patient was not due to any delay in referring the patient to cancer hospital. Hence, we are not inclined to fasten any liability of medical negligence on the surgeon (OP -2), but in our opinion the OP -1, Radiologist is liable for wrong diagnosis. The OP -3 the Saraf Hospital has limited role in this case; we do not find any lapses or negligence by it. Therefore, with the forgoing discussion, we find there is apparent error in the order of the State Commission. We set aside the order of the State Commission and we hold the OP -1, Dr. Salil Chandra, the Radiologist is responsible for the entirety. As the patient ''s death was not due to any negligence , but it was due to an advanced (metastatic) cancer of gall bladder, therefore we restrict and fix the liability of medical negligence on OP -1 for his wrong diagnosis and pass the following order: The OP -2, Dr. R. K. Pandey and OP 3, the Saraf Hospital are exonerated. The OP -1 Dr. Salil Chandra is directed to pay Rs.50,000/ - as compensation to the complainant, within 3 months, otherwise it will carry interest @ 9% pa, till its realization. No order as to costs.
