BIRENDRA KUMAR Vs. USHA KIRAN JHA

JUDGEMENT

(1.) This first appeal has been filed by Birendra Kumar, original Complainant before the Bihar State Consumer Disputes Redressal Commission, Patna (hereinafter referred to as the State Commission) and Petitioner herein being aggrieved by the order of that State Commission, which had disallowed his complaint of medical negligence against Dr. Usha Kiran Jha, Opposite Party before the State Commission and Respondent herein.

(2.) In his complaint before the State Commission, Appellant had stated that he had taken his minor son Ashish Priyadarshi (hereinafter referred to as the Patient) to a Specialist-Pediatrician Dr. Mohan Choudhary with a complaint of small gland on the left side of his neck and who after examination advised some tests, including an x-ray of the chest and biopsy on the lymph gland. The names of two doctors were recommended; (i) Dr. K.K. Kanth and (ii) Dr. Usha Kiran Jha. On 18.11.1995 Appellant again went to Dr. Mohan Choudhary, who advised FNAC of the left lymph gland. Appellant, accordingly, contacted Dr. Usha Kiran Jha, who took specimens for the FNAC of the neck gland and after a laboratory examination gave a report that the Patient appeared to be suffering from Tuberculosis. On the basis of this diagnosis, the consulting Pediatrician prescribed medicines for Tuberculosis and when the condition of his son did not improve he took him to the All India Institute of Medical Sciences, New Delhi, where after seeing the FNAC slide the doctors there opined that this was indicative of Hodgkin's disease i.e. Cancer. The Appellant thereafter took his son to Tata Memorial Hospital for Chemotherapy and he is presently recovering from Hodgkin's disease. However, because of the wrong report given by the Respondent, on the basis of which the Pediatrician also prescribed medicines which were not required, the Patient apart from suffering adverse side effects also had to undergo delay in the correct treatment for the Cancer. Appellant thereafter filed a complaint of medical negligence and deficiency in service against the Respondent and requested that she be directed to pay Rs.5,41,413.34 as compensation.

(3.) Respondent on being served filed a written rejoinder denying any medical negligence on her part. It was stated that the Appellant had approached her with a written recommendation of the Pediatrician requiring her to only conduct an FNAC procedure and not Biopsy. The FNAC was accordingly scientifically conducted in a well-equipped laboratory and on the basis of this the Appellant gave her opinion. There was no negligence in this matter and even if there was a misdiagnosis after due care was taken to conduct the FNAC, it did not amount to medical negligence as per settled law. Respondent further contended that it was the Appellant who delayed getting a Biopsy done on his son because admittedly he did not get it conducted on 17.11.1995 and 06.12.1995 despite advice from the Pediatrician and instead went to All India Institute of Medical Sciences. Even there he did not get the necessary tests done and instead took the Patient to Tata Memorial Hospital delaying the Biopsy and proper treatment by several weeks. Respondent further contended that she had not prescribed/administered any medicine for Tuberculosis, which was done by the Pediatrician, since she was only the Histopathologist and not the treating doctor i.e. the clinician in the present case.