This appeal has been filed under Section 19 read with Section 21(a)(ii) of the Consumer Protection Act, 1986 against the impugned order dated 2.01.2009, passed by the Punjab State Consumer Disputes Redressal Commission, Chandigarh (hereinafter referred as the State Commission) in Consumer Complaint No.91/2000, filed by Smt. Raj Ravinderpal Kaur (now deceased), alleging medical negligence against the opposite parties (OPs) doctors, during her -1- treatment in a case of breast cancer. The said Smt. Raj Ravinderpal Kaur died during the pendency of the litigation and her legal representatives were brought on record.

2. The facts of the case are that Raj Ravinderpal Kaur had gone to OP-1, Dr. H.S. Bajwa at his Nursing Home, called the Bajwa Surgical and Maternity Nursing Home, G.T. Road, Khanna, Distt. Ludhiana (Punjab) on 9.3.2000 and got herself medically examined, as she had pain in her right breast. The OP-1 advised her for removing the lump due to mastitis from her right breast and also asked her to bring medicines for the said operation. On the next date, i.e. 10.3.2000, she was operated upon by OP-1, who removed the lump and asked for biopsy study. After the said operation, the complainant was discharged on 10.3.2000 itself, and the samples were given to her to take them to the Laboratory of OP-2, Dr. Anju Bhandari at Chandigarh. As per the report, bearing no.51/2K dated 15.3.2000, issued by Dr. Anju Bhandari, OP-2 of Navjeevan Clinical Laboratory, Chandigarh, only plasma cell of mastitis had been mentioned and no features of cancer were indicated. However, the complainant went to the OP-1 a number of times and complained about pain in her right breast. In the third week of May 2000, when her condition worsened, she got herself checked up at the Postgraduate Institute of Medical Education and Research, Chandigarh (PGI), where she was subjected to FNAC (Fine Niddle Aspiration Cytology) test, on 25.5.2000. She received report on 29.5.2000, in which it was revealed that she had cancer in her right breast. On 29.5.2000, the complainant visited OP-2 Dr. Anju Bhandari and requested her to hand over the block and slide, numbered as 51/2K for review at the PGI Laboratory. The said review was done at the PGI and report dated 31.5.2000 was issued by them, in which it was stated that the said sample also indicated the presence of cancer. Thereafter, she was operated upon at the PGI and her right breast was removed. The main allegation levelled by the complainant is that if proper report had been given by the OP-2 in the very beginning, the said operation could have been conducted earlier, which would have saved her from suffering physically, mentally as well as monetarily and her life would not have been reduced. It was also alleged in the complaint that the OP-1 was guilty of medical negligence, as he did not make any pre-investigation (surgical) tests i.e., (a) Mammography (b) ultrasound test and (c) FNAC test. The complainant stated that these tests easily show the presence of cancer and are totally safe methods, as they do not cause cancer to spread. The FNAC test is called pre-investigation, which could confirm the cancer and is very accurate. These tests are known as triple assessment and are essential for coming to the conclusion, whether a person has cancer or not. On the other hand, the OP-1 directly operated upon the patient by adopting most invasive method, and hence, disturbed the tumor (in situ carcinoma) and epithelial membrane which caused irreparable damage by helping the cancer to spread through blood and other means. The said surgical intervention delayed the actual treatment by three months, due to which the patient died within 2 years. Smt. Raj Ravinderpal Kaur filed the consumer complaint, seeking compensation for her from the respondents.

3. In his written reply filed before the State Commission, the OP-1 Dr. H.S. Bajwa stated that biopsy was a definitive confirmatory test as against the FNAC test and hence, there had been no negligence on his part in handling the patient. As per OP-1, the said assertion was based on the opinion of the experts given in recent text books, as referred to in his reply. The OP-1 stated that cancer had spread beyond the epithelial membrane and had infiltrated into the surrounding tissues, when the complainant first visited the said surgeon. The OP-1 stated that the sample of biopsy was handed over to the deceased on the same day for testing at the Laboratory in Chandigarh and she herself brought the test report, bearing block no.51/2K dated 15.3.2000 from the Laboratory. Based on the said report, the patient was found not suffering from cancer.

4. In her reply, the OP-2 Dr. Anju Bhandari stated that the report was given on the basis of histological features, observed in the subsequent microscopic examination of the specimen, done by OP-2 with due care and proper skill. The OP-2 stated that if the complainant did not improve by the treatment given by the OP-1 surgeon, she could have got herself examined from some other doctor. The OP-2 also denied that the complainant visited her on 29.5.2000, after getting report from the PGI. The OP-2 stated that the delay in getting the second opinion and getting the cancer-effected breast removed, was attributable to the complainant only.

5. The State Commission, after taking into account the averments made by the parties, decided the consumer complaint, vide their order dated 16.10.2002. The State Commission concluded that there was no negligence on the part of OP-1 in treating the complainant, as there was no evidence to say that the operation upon the patient was not done properly. The State Commission, however, concluded that the OP-2 committed grave, gross negligence in giving the wrong report. The State Commission also stated that the stand of OP-2 that the original sample was still in their possession and the complainant had taken some other sample for testing to the PGI, after putting no.51/2K on some other sample, was not correct. Because of her negligence and deficiency in service, the State Commission directed that a compensation of Rs.50,000/- should be paid to the complainant by OP-2 alongwith Rs.5,000/- as cost of litigation. Another order was passed by the State Commission on 18.8.2003 in Misc. Application No.665/2003, in which, it has been recorded that Smt. Raj Ravinderpal Kaur had already died and OP-2 had moved the said application, saying that the amount of Rs.55,000/- in terms of the order of the State Commission should be handed over to her husband Bahadur Singh. The State Commission recorded that the amount of Rs.55,000/- was handed over to Bahadur Singh by the learned counsel for OP-2 and according to the counsel, this was the full and final payment in accordance with the order of the State Commission. A receipt for payment of said amount was also given by counsel for the complainant to the counsel for OP-2.

6. The order passed by the State Commission on 16.10.2002 was challenged by the complainant Raj Ravinderpal Kaur before this Commission in F.A. No. 246/2003, seeking enhancement of the compensation awarded to her. However, she died during the pendency of the appeal and her legal representatives were impleaded as parties. The said appeal was decided by this Commission, vide order dated 4.10.2007 and the matter was remanded to the State Commission for deciding it afresh, after giving the parties an opportunity of being heard. In pursuance of this order, the State Commission decided the complaint again by impugned order dated 2.01.2009, according to which, the complaint has been ordered to be dismissed. It is against this order that the present appeal has been filed before this Commission by the complainant.

7. It was contended during arguments by the learned counsel for the appellant that the OP-1 had directly performed the operation on the complainant, without carrying out the requisite tests, called the Triple Assessment Test as stated by them in the complaint and hence, there was negligence on the part of OP-1 in treating the patient. Had the OP-1 been more careful, in getting the necessary tests conducted, proper diagnosis about the disease could have been made at an early stage and the treatment started at that stage would have been beneficial to the complainant.

8. The learned counsel for OP-1 doctor stated that there had been no negligence of any kind on the part of OP-1, because he carried out the required procedure in preforming biopsy immediately after the patient approached him and sent the sample for analysis to a Laboratory and the subsequent advice given to the patient, was based on the report of the test, received from OP-2 only.

9. The learned counsel for OP-2 laboratory stated that in terms of the order passed by the State Commission on 16.10.2002, they had already made the requisite payment to the complainant as full and final settlement. Further, vide impugned order, the State Commission concluded that there had been no deficiency in service on their part. In so far as the report made by OP-2 after analysis of the sample sent by OP-1 is concerned, the learned counsel stated that no expert evidence had been produced to show that the report made by OP-2 was wrong in any manner.

10. I have examined the entire material on record and given a thoughtful consideration to the arguments advanced before me.

11. The first issue for consideration in the present case is whether there has been any negligence or deficiency in service on the part of OP-1, who performed surgery on the complainant when she first went to his Nursing Home for getting herself examined. The case of the complainant is that OP-1 should have carried out pre-investigation/surgical tests upon the patient, involving Triple Assessment by carrying out mammography, ultrasound and FNAC tests. On the other hand, OP-1 has explained in his written reply as well as written arguments before this Commission that carrying out biopsy was a better and more confirmatory test, rather than performing triple assessment test, including the FNAC test. The OP-1 has quoted extracts from Concise Text Books of Surgery by Dr. S. Das, saying that a lump in the breast should always be suspected as carcinoma, unless proved otherwise. It was also stated therein that it was customary, when presented with a palpable mass in breast to remove the lump for accurate diagnosis. In any case, it is a fact admitted on record that OP-1 removed the lump from the right breast of the patient and advised her to take the sample for testing at the Laboratory being run by OP-2. A copy of the report provided by the said Laboratory has been placed on record, according to which there was no malignancy found in the said sample. The State Commission, vide their order dated 16.10.2002 and again vide order dated 2.1.2009 concluded that there was no negligence or deficiency in service on the part of OP-1. In the impugned order, the State Commission have categorically observed as follows;

Merely because respondent no.1 had not resorted to triple assessment test did not mean that the doctor had committed any deficiency in service when he had taken the biopsy which was also a sure test for diagnosing the disease. Therefore, there is no force in the submission of the learned counsel for the complainants that the doctor has committed deficiency in service by not conducting the triple assessment test.

12. In view of the position explained above, I do not find any reason to disagree with the findings given by the State Commission in their order dated 16.10.2002, as well as the impugned order that no deficiency in service on the part of OP-1 stands proved. Moreover, the appellants have not produced any evidence to indicate that the procedure done by the OP-1 in carrying out biopsy upon the patient led to any damage to or worsening of her condition.

13. In so far as the role of OP-2 doctor is concerned, it is made out from record that in the report given on 15.3.2000 bearing sample no.51/2K, the opinion given by the said doctor says, presence of plasma cell mastitis. However, when the patient went to the PGI Chandigarh, they carried out the FNAC test and discovered that the patient was suffering from carcinoma. It has come on record that the sample kept in the laboratory of OP-2 was taken to the PGI and after analyzing the same, the PGI gave the report on 29.5.2000 that

Carcinoma appears to have arisen in a background of mastitis..

14. The OP-2 doctor took the stand that the patient had carried some other sample to the PGI for analyzing, after pasting the label for sample no.51/2K, whereas the original sample sent by OP-1 Dr. H.S. Bajwa remained with her only. The State Commission analyzed this issue in detail in their order dated 16.10.2002, saying that it was highly improbable that the complainant would be able to get biopsy sample containing cancer from somebody else and paste the sticker of the same number on the slide. The report of the PGI also says that the sample was numbered as 51/2K. The version of the OP-2 that some other sample was taken for testing was, therefore, is not correct. This issue has been discussed by the State Commission in the impugned order dated 2.01.2009 also. In the said order the State Commission observed as follows:

It may be that another sample biopsy was taken from the right side breast of the deceased and the same was presented by the patient in PGI, Chandigarh by giving its number as 51/2K for review for which the report dated 29.5.2000 has been given by the PGI, Chandigarh. It is nowhere mentioned in the report of the PGI, Chandigarh if one slide/one block No.51/2K was the same which was taken on 10.3.2000 and for which opinion was given by respondent no.2 on 15.3.2000.

15. The above version given by the State Commission seems to have been based on mere conjunctures that another biopsy was taken from the right breast of the patient and sent to the PGI with sticker, marked as 51/2K. There is nothing to disbelieve the version given by the complainant, upheld by the State Commission in their order dated 16.10.2002 that the sample analyzed by the OP-2 laboratory was sent to the PGI, Chandigarh for review. It is beyond imagination that the patient would have carried a different sample for analysis, when she was expected to be suffering from a serious ailment. It is held therefore, that the finding given by the State Commission in the impugned order in so far as the deficiency in service by OP-2 is concerned, is not correct, rather the conclusion arrived at in the order dated 16.10.2002, is based on a sound analysis of the facts and circumstances on record.

16. From the above discussion, it is clear that there was deficiency in service on the part of OP-2 in carrying out analysis of the sample sent by OP-1, after carrying out biopsy upon the patient. The State Commission vide their order dated 16.10.2002 directed OP-2 to make payment of Rs.50,000/- as compensation to the complainant alongwith Rs.5,000/- as cost of litigation. Admittedly, the said payment stands already made on 18.8.2003 in front of the State Commission and an order to this effect was also recorded by them. It is stated in the said order that according to the counsel for OP-2, this was the full and final payment in accordance with the orders of the State Commission and receipt of the same was also given by the counsel for complainant to the counsel for OP-2.

17. In view of the facts stated above, it is apparent that there was no deficiency in service on the part of OP-1 in the treatment of the patient, whereas the deficiency in service against OP-2 stands proved. The case of the complainant is that if proper diagnosis had been made in March, 2000 itself, that would have proved beneficial to the patient. However, there is no material or technical evidence on record to prove the said version, based on which any liability could be fastened on OP-1. This appeal is, therefore, partly allowed and it is held that there was no deficiency in service on the part of OP-1 in the treatment of the patient, whereas the deficiency in service on the part of OP-2 has been duly proved.

18. In so far as the liability of OP-2 to pay compensation to the complainants is concerned, the amount as directed by the State Commission in their order dated 16.10.2002 already stands paid to the complainants and an order to this effect was also recorded by the State Commission on

18.82003 in Miscellaneous Application No.665/2003, as stated already. Considering the facts and circumstances of the case, there does not seem to be any justification for enhancement of the said amount at the appellate stage. It is held, therefore, that the complainants shall not be entitled to get any more amount from the OP-2 than that received already in the year 2003. This appeal stands disposed of accordingly. There shall be no order as to costs ...................... DR. B.C. GUPTA PRESIDING MEMBER