STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Delhi E.N.T Hospital, FC-33, Plot No.13, Jasola Institutional Area, New Delhi-110025 through Professor S. K. Kacker.

…..Appellant/Opposite Party No.2.

VERSUS

1. Smt. Darshani Devi alias Darshani Sharma W/o Sh. Brij Bhushan Sharma R/o H.No.191, Ashoka Nursery, Karnal (Haryana).

…..Respondent/Complainant.

2. Post Graduate Institute of Medical Education & Research, Chandigarh through concerned doctors of Deptt. of Cytology and Gynecologic Pathology as well as Deptt,. of Otolaryngology Head & Neck Surgery (En)).

3. Sun Diagnostic Clinic, Exclusive Pathology Service, H-Block, 41/S, Saket, New Delhi-110017 through Dr. Sunil Dargar.

4. Max Health Care Super Specialty Hospital, Mohali through concerned Doctor. …..Respondents/Opposite Parties No.1, 3 & 4.

PRESENT: (THROUGH VIDEO CONFERENCING):

Sh. Deepak Verma, Advocate for the appellant. Ms. Shaveta Sanghi, Advocate for respondent No.1. Ms. Niharika Goel, Advocate, proxy for Sh. P. M. Goyal, Advocate for respondent No.2. Sh. R. R. Kumar, Advocate for respondent No.3.

Respondent No.4 already ex-parte vide order dated 20.11.2019.

Appeal No. : 128 of 2019

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Sun Diagnostic Clinic, Exclusive Pathology Service, H-Block, 41/S, Saket, New Delhi-110017 through Dr. Sunil Dargar, Sole-Proprietor.

…..Appellant/Opposite Party No.3.

VERSUS

1. Smt. Darshani Devi alias Darshani Sharma W/o Sh. Brij Bhushan Sharma R/o H.No.191, Ashoka Nursery, Karnal (Haryana).

…..Respondent/Complainant.

2. Post Graduate Institute of Medical Education & Research, Chandigarh through concerned doctors of Deptt. of Cytology and Gynecologic Pathology as well as Deptt,. of Otolaryngology Head & Neck Surgery (En).

3. Delhi E.N.T Hospital, FC-33, Plot No.13, Jasola Institutional Area, New Delhi-110025 through Dr. Geeta Kathuria.

4. Max Health Care Super Specialty Hospital, Mohali through concerned Doctor. …..Respondents/Opposite Parties No.1, 2 & 4.

Appeals under Section 15 of Consumer Protection Act, 1986.

BEFORE: JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT.

MRS.PADMA PANDEY, MEMBER

MR. RAJESH K. ARYA, MEMBER.

PRESENT: (THROUGH VIDEO CONFERENCING):

Sh. R. R. Kumar, Advocate for the appellant. Ms. Shaveta Sanghi, Advocate for respondent No.1. Ms. Niharika Goel, Advocate, proxy for Sh. P. M. Goyal, Advocate for respondent No.2. Sh. Deepak Verma, Advocate for respondent No.3.

Respondent No.4 already ex-parte vide order dated 20.11.2019.

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RAJESH K. ARYA, MEMBER

Vide this common order, we are disposing of aforesaid two appeals i.e. FA/127/2019 filed by opposite party No.2 (Delhi E.N.T Hospital) and FA/128/2019 filed by opposite party No.3 (Sun Diagnostic Clinic), arising out of order dated 20.05.2019 passed by District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (now District Consumer Disputes Redressal Commission-I, U.T., Chandigarh) (for short 'District Commission') vide which, consumer complaint No.535 of 2017 filed by respondent No.1/complainant (Smt. Darshani Devi) was partly allowed by the said District Commission against opposite parties No.2 and 3 (appellants herein) in the following manner:-

"21. In view of the above discussion, the present consumer complaint succeeds and the same is accordingly partly allowed qua OPs 2 & 3. OPs 2 & 3 are directed as under :-

i. OP-2 shall pay a sum of Rs.2,50,000/- to the complainant as compensation for deficiency in service and negligence on its part inclusive of pain, suffering and mental agony suffered by her.

ii. OP-3 shall pay a sum of Rs.1,50,000/- to the complainant as compensation for deficiency in service and negligence on its part inclusive of pain, suffering and mental agony suffered by her.

iii. OPs 2 & 3 shall pay a sum of Rs.10,000/- each as costs of litigation to the complainant.

22. This order be complied with by OPs 2 & 3, as referred above, within thirty days from the date of receipt of its certified copy, failing which, they shall make the payment of the respective amounts mentioned at Sr.No.(i) & (ii) above, with interest @ 9% per annum from the date of this order, till realization, apart from compliance of direction at Sr.No.(iii) above.

23. The consumer complaint qua OPs 1 & 4 has been dismissed leaving the parties to bear their own costs."

2. Briefly stated the facts are that in the month of March 2016, complainant developed sore throat with pain and difficulty in swallowing food. Initially, treatment was taken at Karnal but to no effect. On being advised, she got herself checked on 21.3.2016 with the doctors of opposite party No.1 and treatment continued for a month as outpatient without much relief. She was advised FNAC test, which was got conducted and report dated 23.4.2016 was given with diagnosis of "Thyroid Gland (Left Lobe): Benign Aspirate". Follow up medicines were administered but there was no improvement. On 14.7.2016, again FNAC test was conducted by opposite party No.1 and report was "follicular lesion in left lobe". In ordinary language, doctors of opposite party No.1 had told the complainant there was growth on the left side of the throat which may be cancerous as per report of Dr. Rashi Garg and she was to be operated upon. However, long date i.e. 12.12.2016 was given for operation. Since there was fear of cancer, the complainant got herself checked and hospitalized with opposite party No.2 at Delhi, where she was operated upon on 2.8.2016 and discharged on 4.8.2016. As recommended, test was again conducted by opposite party No.3 and report dated 8.8.2016 was suggestive of cancerous throat. Again opposite party No.2 was visited and they advised her for second operation of throat to complete it. The complainant lost faith in opposite party No.2 and thereafter, she got herself hospitalized with opposite party No.4, where she was operated on 12.8.2016 and discharged on 14.8.2016. She spent amount of Rs.2 lakhs on said operation and treatment with opposite party No.4 and transportation also. Again as per advice, FNAC test was got done from opposite party No.1 and previous reports were also shown and the report dated 7.10.2016 showed that it was simply a case of 'follicular adenoma' and there was no cancer at all. Hence, alleging negligence, the complainant filed consumer complaint before the District Commission.

3. On the other hand, while contesting the allegations made in the complaint, opposite party No.1 in its reply had pleaded that the diagnosis of malignant growth was never confirmed by it and even in 4th FNAC, its doctors had submitted the report of case of 'follicular adenoma' and no cancer at all. As such, there was neither any medical negligence nor any deficiency in service or unfair trade practice on its part.

4. Opposite Party No.2 did not appear before the District Commission, despite due service and therefore, it was proceeded against exparte vide order dated 14.9.2017.

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5. Opposite party No.3 in its reply had pleaded that it had limited role in the entire investigation and the treatment of the complainant. On being asked to investigate the possibility of thyroid follicular malignancy (follicular carcinoma), opinion was required to be given and the histology was suggestive of thyroid follicular malignancy (follicular carcinoma). However, the decision to operate thereafter was taken by opposite party No.2 and opposite party No.4 and opposite party No.3 had no role to play. Symptoms were like this and histologically Thyroid Follicular Adenoma and Thyroid Follicular Carcinoma look alike and could not be differentiated by looks alone.

6. Opposite party No.4 in its reply had pleaded that no relief was claimed against it and rather it performed the second successful surgery and on being advised to get another test of FNAC done from the PGI, it suggested that it was a benign growth and not a malignant one and there was no medical negligence on its part.

7. After hearing Counsel for the parties and going through the record, the District Commission partly allowed the complaint against opposite parties No.2 & 3 and dismissed the same qua opposite parties No.1 & 4, as stated above.

8. The order of District Commission has been assailed by opposite parties No.2 & 3 (appellants herein) by filing separate appeals on the following grounds:-

Appeal No.127 of 2019 filed by Opposite Party No.2 - Delhi E.N.T Hospital

It has been stated that the District Commission failed to appreciate the fact that the appellant - opposite party No.2, after duly carrying out the investigation by the required procedures and provided its opinion based upon the opinion of opposite party No.3 that the tissue in question was suggestive of thyroid follicular malignancy (follicular carcinoma). It has been further stated that the District Commission failed to appreciate the prescribed medical procedure for treatment of the patient. It was further stated that the decision to operate thereafter was taken by opposite party No.4 and the appellant/ opposite party No.2 had no role to play in the said decision. It has been further stated that opposite party No.2 had only removed the Adenoma of the complainant and sent the same for examination and professional opinion thereon to opposite party No.3, a reputed and experienced pathologist, if it was malignant or benign. It was stated that it was for the complainant as an independent person/patient to go for any second/third opinion if so advised and therefore, the appellant/opposite party No.2 could not be penalized for giving a medical opinion/diagnosis based upon correct medical procedure, which the District Forum failed to appreciate while passing the impugned order. It has been further stated that the District Commission further failed to appreciate the fact that the opposite party No.4 also confirmed upon independent investigation that the thyroid gland of the complainant indeed contains malignant tissue and carried out the second steps surgical process of removing the same. It has been further stated that the District Commission also failed to appreciate that even opposite party No.1 - PGIMER on 14.07.2016 had opined it to be a case of malignant tissue and advised second step surgery for removal of the thyroid gland. It has been further stated that the District Commission further failed to appreciate that PGIMER's fresh revised opinion, which was based upon examination of four blocks and four slides (no.17330) of opposite party No.4 and only one slide (No.9145A) of opposite party No.3 opined that there was no evidence of malignant tissue in the thyroid gland of the complainant but the District Commission did not consider the report of opposite party No.3, which was based upon examination of two slides (No.9145AB). It was further stated that PGIMER in its review opinion did not even examine the second slide (No.9145B), which actually reflects malignancy in the thyroid gland of the complainant. It has been further stated that the District Commission grossly erred in overruling the opinion of medical experts without any medical board opinion on the quality of opinion provided by the appellant - opposite party No.2.

Appeal No.128 of 2019 filed by Opposite Party No.3- Sun Diagnostic Clinic

It has been stated that the District Commission failed to appreciate that the appellant/opposite party No.3 had done its professional investigation of specimen sent to it by opposite party No.2 i.e. Delhi E.N.T. Hospital. It has further been stated that the appellant/opposite party No.3 is an experienced and

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qualified pathologist and there is no requirement under any law/regulation that the appellant/opposite party No.3 must first get its own opinion checked from somebody else. It has further been stated that the District Commission is not professionally qualified to evaluate the medical opinion of the appellant/opposite party No.3 and further, it has passed an erroneous order with disparaging remarks against the appellant/opposite party No.3. It has further been stated that the District Commission has no medical/pathological background and is not professionally qualified to sit as a Medical board over the professional opinion of the appellant/opposite party No.3. It has further been stated that the District Commission also failed to appreciate that undisputedly, the complainant was earlier examined by PGIMER and the first FNAC test was done on 23.04.2016 by Dr. Rashi Garg who reported benign aspirate left lobe of thyroid gland and after four months, on 14.07.2016, the above FNAC test was reported by Dr. Rashi Garg as Thyroid Follicular Adenoma and Thyroid Follicular Carcinoma. It has further been stated that the District Commission further failed to appreciate that histologically, Thyroid Follicular Adenoma and Thyroid Follicular Carcinoma are lookalike and cannot be differentiated by looks alone. It has further been stated that the Thyroid Follicular Adenoma is indicated by a swelling of the Thyroid gland and there is no difference in the swelling if any Thyroid Follicular Carcinoma exists. It has further been stated that even a superficial look at the cells in the throat Adenoma will not show whether the carcinoma exists or not. It has further been stated that only after a detailed study is done and a diligent search is made it can be discovered that there is evidence of follicular adenoma is behaving malignant. It has further been stated that it is difficult to assess the existence of malignancy in thyroid follicular adenoma and the observations which are required to be made in this regard are well in the medical literature. To say so, reliance has been placed on an article titled "Follicular Adenoma and Carcinoma of Thyroid Gland" published in The Oncologist, an online journal for practicing oncologist/hematologist. It has further been stated that the District Commission failed to appreciate that the decision to operate thereafter was taken by opposite party No.4 upon independent diagnosis and the appellant/opposite party No.3 had no role to play in the said decision.

9. We have heard the Counsel for the parties and have also gone through the record and the written submissions of the parties very carefully.

10. First coming to the appeal filed by opposite party No.2 - Delhi E.N.T. Hospital, the moot question to be decided by this Commission is as to whether there was any negligence or professional misconduct on its part (opposite party No.2) in performing surgery upon the complainant on 02.08.2016. Perusal of record transpires that per Discharge Summary prepared by opposite party No.2 (Delhi E.N.T. Hospital), the complainant was admitted in its hospital on 02.08.2016 as a case of constant sore throat and the patient was having follow-up in PGIMER, Chandigarh. The diagnosis at the time of admission and Final Diagnosis is mentioned as 'Follicular neoplasia left thyroid lobe' and he was operated upon as such i.e. Treatment Given was Left Hemithyroidectomy under GA. Now we are keen to discuss the report dated 14.07.016 of PGIMER, which was prior to the date of admission with opposite party No.2, which was 02.08.2016. Per report of Department of Cytology & Gynaecologic Pathology, PGIMER, Chandigarh dated 14.07.2016, there were possibilities of (1) Follicular hyperplasia and (2) Follicular neoplasm. Follicular hyperplasia (FH) is a type of lymphoid hyperplasia and is classified as a lymphadenopathy, which means a disease of the lymph nodes and Follicular neoplasm represents a heterogeneous group of lesions including benign follicular hyperplasia, follicular adenomas, follicular carcinomas, and the follicular variant of papillary carcinoma. When co-relating these reports, no negligence on the part of opposite party No.2 (Delhi E.N.T. Hospital) is attributable because though in the Out Patient Card dated 30.04.2016, when the complainant first visited PGIMER, Chandigarh, FNAC done on 23.04.2016 showed Thyroid Gland (Left Lobe) : Benign Aspirate, which means there was no cancer but in its subsequent report dated 14.07.2016, PGIMER found possibilities of (1) Follicular hyperplasiaz & (2) Follicular neoplasm, which means a little bit cancerous. Thus, based upon the reports of PGIMER, Chandigarh and its own diagnosis, opposite party No.2 treated the complainant on 02.08.2016 and in doing so, there was no professional misconduct on its part. It may also be stated here that the diagnosis of opposite party No.2 was in line with the findings of Dr. Rashi Garg of PGIMER. Opposite Party No.2 had provided same opinion and first part of the treatment to the complainant, which concurred with the opinion of Dr. Rashi Garg of PGIMER. The complainant independently approached opposite party No.4 - MAX Hospital where she was examined and surgery was performed. Thus, opposite party No.2 gave treatment to the complainant as per medical procedure for

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treatment of such an ailment. No doubt, for the problem with which the complainant had been dealing with, the last resort was the operation, which was rightly performed by opposite party No.2 - Hospital. Thus, surgery was required as advised by PGIMER for the ailment with which the complainant was suffering from. Thus, the observation made by the District Commission in Para 16 of its order that the surgery performed by opposite party No.2- Hospital on 02.08.2016 was useless one when the subsequent report of opposite party No.3 - Sun Diagnostic Clinic was suggestive of cancerous growth, upon which, opposite party No.2 advised the second surgery, was not well based per documentary evidence on record. In our considered opinion, the liability fastened by the District Commission upon opposite party No.2 - Delhi E.N.T. Hospital vide the impugned order is not legally sustainable in the eyes of law. Thus, the findings of alleged negligence on the part of opposite party No.2 are based on conjecture and surmises and against medical record. Our view is supported by the law laid down in by Hon'ble Apex Court in the case of Kusum Sharma and others Vs. Batra Hospital and Medical Research Centre and others, (2010) 3 Supreme Court Cases 480, wherein it has been held that Doctor would be liable only where his conduct falls below that of a reasonably competent doctor and divergence of opinion with other doctors, not by itself sufficient to infer negligence. In this view of the matter, the impugned order dated 20.05.2019 is liable to be set aside so far as opposite party No.2 - Delhi E.N.T. Hospital is concerned.

11. Now coming to the case of opposite party No.3 - Sun Diagnostic Clinic, it may be stated here that the District Commission has rightly held in its order that it was the test report of opposite party No.3, which confirmed it to be a malignant growth and put the complainant under 'hanging death sentence'. Opposite Party No.3 cannot be heard to say at this belated stage that it was difficult in such a presentation to opine it to be a benign or malignant growth. Its report dated 08.08.2016, which was subsequent to the first surgery performed by opposite party No.3 on 02.08.2016, was very much specific in mentioning under the heading "Impression" that "Histology is suggestive of thyroid follicular malignancy. (Follicular carcinoma)", after 2^ndSurgery was advised by opposite party No.2, which was performed at opposite party No.4 hospital, as per own choice of the complainant. It was only thereafter that that the Department of Histopathology, PGIMER, Chandigarh reviewed all the Sections of Blocks received vide its Surgical Pathalogy Report dated 07.10.2016 and opined that sections examined from these Blocks showed thyroid follicles filled with colloid and are lined by flattern to low cuboidal epithelium and further showed a benign nodule composed of microfollicles and closely placed thyroid follicies; the capsule was intact and there was no evidence of capsular or vascular invasion noted. PGIMER found the features were of Follicular Adenoma. Under the Diagnosis: it was mentioned as Thyroid gland (Block for review):- Adenoma, follicular, which means that there was no cancer. Therefore, we are further in agreement with the view held by the District Commission that there were no cross checks or say authentic confirmation of the same being malignant growth and thus, opposite party No.3 - Sun Diagnostic Clinic was deficient in rendering service by giving such a report, which put the life of the complainant in danger, resulting into second surgery at opposite party No.4 - Hospital, despite the fact that PGIMER vide its review done vide Surgical Pathalogy Report dated 07.10.2016 ruled out it to be a case of carcinoma. In our considered opinion, based on the aforesaid discussion and view held by the District Commission qua opposite party No.3- Sun Diagnostic Clinic, appeal filed by opposite party No.3 deserves to be dismissed.

12. For the reasons recorded above, appeal bearing No.127 of 2019 filed by opposite party No.2 - Delhi E.N.T. Hospital is allowed and the impugned order dated 20.05.2019 is set aside qua it (opposite party No.2).

13 However, the appeal bearing No.128 of 2019 filed by opposite party No.3 - Sun Diagnostic Clinic is dismissed, being devoid of any merit, with no order as to cost.

14. Certified copies of this order be sent to the parties free of charge.

15. The file be consigned to Record Room, after completion. Pronounced.

28.01.2022.

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[RAJ SHEKHAR ATTRI]

PRESIDENT

[PADMA PANDEY[

MEMBER

[RAJESH K. ARYA]

MEMBER

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