National Disputes Redressal Commission (NCDRC): In an alleged medical negligence case, the Coram of R.K. Agrawal, President and Dr S.M. Kantikar, Member, reiterates that the “Consumer Protection Act should not be a halter round the neck.”
An instant appeal under Section 19 of the Consumer Protection Act, 1986 was filed by the appellant/complainant for enhancement of compensation which was awarded by the State Consumer Disputes Redressal Commission.
A small lump was noticed in the left breast of the complainant and the same was confirmed by scan/mammography. Thereafter, the appellant went through a Fine Needle Aspiration Cytology test at respondent 1. Respondents 2 to 4 reported that there was no evidence of malignancy.
Hence, on the basis of mammography and FNAC report the surgeon advised no further treatment as the lump was benign.
It was alleged that the small lump of the complainant was grown in size, therefore she underwent the FNAC test again. Later, the complainant underwent left-sided mastectomy and her entire left breast along with the adjoining tissues were removed.
Further, it was alleged that the wrong FNAC report was a root cause of the mastectomy, which otherwise could have been avoided and there was a complete cure. She suffered great pain and stress, and also incurred heavy expenses of about Rs.4,50,000/- due to the alleged negligence of the respondents.
Aggrieved with the above, the appellant filed a consumer complaint before the State Commission.
What the State Commission hold?
“…complaint is partly allowed holding that Op Nos. 1 to 4 are liable for the wrong report of FNAC test given by them to the complainant and consequently Op Nos. 1 to 4 are jointly and severally liable to pay compensation of Rs. 1.00 lakh with interest at the rate of 9% per annum.”
Analysis, Law and Decision
In Commission’s view, it was the duty of the appellant’s doctor to refer her to a surgeon for further treatment instead of relying on the FNAC report, but it was not done. Hence, no negligence or deficiency of the respondents was observed.
In the opinion of the Coram, it was the pathologists at Anand Diagnostic Laboratory who reported FNAC as per reasonable skill and standard of practice (Bolam’s Test).
Supreme Court recently on 20 April 2022, in the Civil Appeal No.6507 of 2009, Dr. (Mrs.) Chanda Rani Akhouri V. Dr. M.A. Methusethupathi, held that: –
“A medical practitioner is not to be held liable simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another.”
Hence, the appellant claiming enhancement of compensation of Rs 2 crore was highly inflated and unjustified.
“Consumer Protection Act should not be a halter round the neck.”
In view of the above discussion, Coram held that it could not be concluded that respondents were negligent and the present matter was devoid of merit.[Sajidah Shukath v. Anand Diagnostic Laboratory, 2022 SCC OnLine NCDRC 53, decided on 13-5-2022]
Advocates before the Commission:
For the Appellant: Ms. Neela Gokhale, Advocate
For the Respondent: Mr. Gaurav Kejriwal, Advocate for R-1 R-2 to 4 Ex Parte vide order dt.27.08.2018