ALL INDIA INSTITUTE OF MEDICAL SCIENCES vs Ayesha Begum

AGGRIEVED by the order dated 9.5.2007 passed by Delhi State Consumer Disputes Redressal Commission (in short, "the State Commission"), All India Institute of Medical Sciences (AIIMS), New Delhi has filed the present appeal. By the impugned order, the State Commission has partly allowed the complaint filed by Mrs. Ayesha Begum (complainant) alleging medical negligence and deficiency in service on the part of AIIMS and has awarded a lump sum compensation of Rs.5 lakh for the mental agony, trauma, emotional suffering and disfigurement of her body causing immense lifelong loss of conjugal bliss.

THE facts giving rise to the case are that the complainant filed a complaint claiming compensation of Rs.19 lakh with interest @18% per annum alleging medical negligence and deficiency in service on the part of AIIMS and Dr. K. Verma of the Department of Pathology having wrongly diagnosed her right breast lump as showing a well distinguished Carcinoma though, in fact, later report showed that there was no evidence of Carcinoma. THE complaint was filed with the averments and allegations that the complainant-Mrs. Ayesha Begum, an ordinary resident of Bareilly, U.P., noticed a lump in her right breast sometime in May, 1998 for which she underwent some medical tests at Dayal Clinic (a private clinic in Bareily) and Fine Needle Aspiration Cytology (FNAC) of the right breast nodule on 30.05.1998. THE said clinic gave a report/opinion suspecting malignancy and advised "biopsy for confirmation". With the report of Dayal Clinic, the complainant approached the AIIMS on 2.6.1998 and was registered there by paying a fee of Rs.750/-. THE slide of the FNAC test which she underwent at Bareilly clinic was produced by her at AIIMS and was examined in the Pathology Department of AIIMS on 3.6.1998 and a tentative report "Further evidence is needed to confirm cancer" was submitted by the said Department. Fine Needle Aspiration Cytology (FNAC) test was repeated and the aspirates again sent to the Pathology Department of AIIMS for report. This time, the report was positive and categorical "Diagnostic for cancer" "Aspirates from right breast lump shows well-differentiated Carcinoma". Based on the said report, the complainant was advised surgery of her right breast and she was admitted to the AIIMS on 9.6.1998 and the surgery was performed on her right breast on 10.06.1998 and she was discharged on 20.6.1998. During the course of surgery, the "wide local excision specimen" right breast including the tumour was sent for histopathological test on 12.6.1998. THE report dated 23.6.1998 concluded "Consistent with benign Phylloides tumour right breast", which made it clear that there was no Carcinma and the tumour was benign. It is the case of the complainant that despite receipt of the said report, on 25.6.1998, she was advised to undergo Radiotherapy, which was fixed for 9.7.1998 and for which she paid a sum of Rs.750/-. On 9.7.1998, she was given Radiotherapy for 36 hours. THE complainant entertained doubt about the line of treatment given to her and so she obtained the two slides from the AIIMS for the purpose of review and obtaining expert opinion. THE slides were got examined through another experienced Pathologist, Mohini Nayar who, vide report dated 16.7.1998 gave the opinion that "No evidence of malignancy". THEreafter, the two slides were sent to Royal Marsden NHS Trust, London, for examination and opinion and the said Trust in no uncertain terms was, "THEre was no evidence of Carcinoma". Based on this position, the complainant alleged that the appellant/opposite parties committed negligence and deficiency in service in having wrongly diagnosed the complainant to be suffering from breast cancer ( well differentiated adenocarcinoma) and not only removing her right breast (which was not required to be removed) but also having made her undergo entirely unnecessary Radiotherapic treatment, detrimental to her health. THE complaint was, accordingly, filed seeking compensation of Rs.19 lakh for physical disability, disfigurement of her body, pain, suffering, mental torture and towards the expenditure in the treatment and further diagnoses. The complaint was resisted by the opposite parties objecting to its very maintainability before the Consumer Fora on the ground that the opposite parties were not "service providers" within the meaning of section 2(1)(o) of the Consumer Protection Act, 1986 and the complainant was not a consumer within the meaning of section 2(1)(d)(ii) of the Act because the opposite party No. 1-AIIMS is an autonomous body created by an Act of Parliament, viz., the All India Institute of Medical Sciences Act, 1956 and is not amenable to the jurisdiction of the Consumer Fora. In any case, opposite parties did not charge for the medical treatment given to the complainant. On merits, it was denied that there was any medical negligence or deficiency in service on the part of the opposite parties in diagnosis and it was sought to be explained that the FNAC test was conducted in AIIMS which showed it to be positive for breast cancer but it was not foolproof and did not give 100% accurate results and there was always scope of error by way of false positive result. It was admitted that the complainant/respondent was operated upon and the tumor and lymph nodes from her arm pit were removed by the process of local excision using technique of BCT (Breast Conservation Technique), which is used world wide to preserve the breast in females. It was not denied that after the surgery the complainant was advised and had undergone Radiotherapy as a follow up treatment.

The State Commission, going by the respective pleas, evidence and material produced on record, more particularly, various reports of the tests on the specimen of the AIIMS by Dr. Nayar and the Royal Marsden NHS Trust at London, concluded that not only was the diagnosis wrong but also the treatment given by the opposite parties was not proper and correct. The State Commission ruled it out to be a case of error of judgment and held that it was either negligence or incompetence of the opposite parties-doctors to read the FNAC properly, as a result of which the complainant underwent surgery and radiotherapy of the body causing her immense pain and disfigurement of the body. The State Commission, accordingly, partly allowed the complaint and awarded a lumpsum compensation of Rs.5 lakh to the complainant.

WE have heard Mr. Mukul Gupta, learned counsel for the appellant-AIIMS and doctors and Mr. H.R. Khan Suhel, learned counsel representing the complainant/respondent and have given our thoughtful consideration to their respective submissions. Mr. Gupta would assail the impugned order primarily on the ground that the State Commission has gravely erred in entertaining the complaint against AIIMS and its doctor because AIIMS is an autonomous body created under an Act of the Parliament and provides free diagnostic services and medical treatment to the patients, who approach it for that purpose. The basis of this contention is that the AIIMS does not charge any fee/service charge for providing its services and facilities and whatever it charges is only towards the actual cost of the consumables, etc. That being so, AIIMS is not a "service provider" within the meaning of section 2(1)(o) of the Act and the complainant or for that reason, whosoever has received the treatment at their institute, is not a "consumer" within the meaning of section 2(1)(d)(ii) of the said Act.

IN order to support this contention, additional affidavit of Dr. D. K. Sharma, Medical Superintendent, AIIMS has been filed. Alongwith the affidavit, the deponent has also filed a copy of the affidavit dated 9.12.2003 of Dr. P. Venugopal, Director, AIIMS, which was filed on behalf of AIIMS in another proceeding, viz. Original Petition No. 224 of 1994 titled as Suresh Munjal & Anr. vs. AIIMS & Ors. The comparative statement of test charges at AIIMS hospital and the charges which are being reimbursed to C.G.H.S. beneficiaries and a copy of order dated 27.10.2009 passed by Supreme Court in Civil Appeal No. 4992 of 2004 titled as Suresh Munjal & Anr. vs. AIIMS & Anr. and in cross Appeal No. 5652 of 2004 have also been filed. Paragraphs 3 to 7 of the affidavit of the Medical Superintendent, AIIMS give out the reasons in support of the plea that the AIIMS is not a "service provider" and it does not provide any "service" within the meaning of section 2(1)(o) of the Act, which reads as under:- "3. That however substantially subsidized cost of consumables either used in the procedure(s) of diagnostics or treatment is taken only from a section of patients. That the AIIMS had filed an affidavit giving certain details in this respect in another matter before this Hon''ble Commission. The contents of the said affidavit remained un-re-butted. The deponent is filing a copy of the said affidavit as Annexure AA-1. That the contents of the said affidavit are not being repeated herein for the sake of brevity and the appellant craves leave of this Hon''ble Commission to read the contents thereof as part of this affidavit.

That this objection was specifically taken by the Appellant before the Hon''ble State Commission, and the State Commission has not decided the same except taking note of the same in para 15 of the impugned order. It is respectfully submitted that no detailed arguments were allowed to be made by the Ld. State Commission in view of the earlier decision. The Appellant herein was already before the Hon''ble Supreme Court on this issue in CA No: 4992-5662/04 was thus advised that the decision taken by the Hon''ble Supreme Court would be binding on the State Commission and the National Commission in all pending matters. Therefore, no detailed submissions were made in the appeal so filed. The appellant is raising the issue of maintainability of the complaint as per liberty and directions passed by this Hon''ble Commission on 2.12.2009 and the fact that the question of law has been kept open by the Hon''ble Supreme Court vide its decision dated 27.10.2009.

That without prejudice a joint reading of the provisions of Sec. 2(d-ii),(g)&(o) coupled with the fact no charges whatsoever are taken for the services rendered to the patients at AIIMS there is no question that the process of taking either cost of consumables used in the procedure or on the body can be taken to be charged for the services rendered itself.

That without prejudice it is also submitted that the process of taking charges for the cost of consumables used in the procedure or on the body can be termed to be charges for the services rendered in a commercial sense or manner as is understood in the normal commercial activities of such nature. That it is also a matter of record that during the years 2005-06 to 2008-09 the expenditure under the Sub-Head Material & Supply (Non Plan) for the main hospital, CNC, RPC, IRCH comes to Rs.111137.03, 11114.00, 12375.61 & 14777.30 lacs respectively. There being no corresponding receipt qua the subsidized cost of consumables as submitted above.

That to show the difference of cost of consumables being taken at AIIMS with reference to the charges being taken at other places the Appellant is filing the chart which would demonstrate that an AIIMS cost of reimbursement of consumables used either on the procedure or on the body is highly subsidized and not at all comparable to the commercial transactions being taken in other places. The copy of the chart is annexed as Annexure AA-2".

On the strength of the above depositions, Mr. Gupta has argued that the services provided by AIIMS are free and, therefore, in view of the ruling of the Apex Court (three Judge Bench) in the case of Indian Medical Association vs. V. P. Shantha and Others [(1995)6 SCC 651], which laid down that the service rendered at a government hospital/health centre/dispensary where no charge whatsoever was made from any person availing of the services and all patients (rich and poor) were given free service " was outside the purview of the expression "service" as defined in section 2(1)(o) of the Act. The payment of a token amount for registration purpose only at the hospital/nursing home would not alter the position. To further reinforce his contention, Mr. Gupta has placed reliance on certain observations made by the Supreme Court in several of its decisions. Mr. Gupta has, in particular, referred to the observations made in paragraphs 3 and 4 of the judgment in the case of Lucknow Development Authority vs. M. K. Gupta (1994) 1 SCC 243:- "The Act thus aims to protect the economic interest of a consumer as understood in commercial sense as a purchaser of goods and in the larger sense of user of services. The common characteristics of goods and services are that they are supplied at a price to cover the costs and generate profit or income for the seller of goods or provider of services."

What is the meaning of the word "service"? Does it extend to deficiency in the building of a house or flat? Can a complaint be filed under the Act against the statutory authority or a builder or contractor for any deficiency in respect of such property. The answer to all this shall depend on understanding of the work "service".

RELIANCE is also placed on the following observations of the Supreme Court appearing in para 7 of the decision in the case of Regional Provident Fund Commissioner vs. Shiv Kumar Joshi (2000)1 SCC 98 :- "The combined reading of the definitions of "consumer" and "service" under the Act and looking at the aims and object for which the Act was enacted, it is imperative that the words "consumer" and "service" as defined under the Act should be construed to comprehend consumer and services of commercial and trade-oriented nature only. Thus any person who is found to have hired services for consideration shall be deemed to be a consumer notwithstanding that the services were in connection with any goods or their user. Such services may be for any connected commercial activity and may also relate to the services as indicated in Section 2(1)(o) of the Act."

SIMILARLY, reliance is placed on the decision in the case of Kishore Lal vs. Chairman, Employees State Insurance Corpn. (2007) 4 SCC 579 wherein the Court has made a distinction between the "contract of personal service" and "medical service" rendered by the doctors, hospitals or dispensaries. In para 7 of the said decision, the Supreme Court interpreted the term "consumer" appearing in section 2(1)(d) of the Act and held that the definition of "consumer" in the CP Act is apparently wide enough and encompasses within its fold not only the goods but also the services, bought or hired, for consideration. Such consideration may be paid or promised or partly paid or partly promised under any system of deferred payment and includes any beneficiary of such person other than the person who hired the service for consideration. Per contra, Mr. Khan, learned counsel representing the respondent-complainant submitted that the question whether the AIIMS provided free services; whether the services are not covered by the definition of the term "service" appearing under section 2(1)(o) of the Act and, for that matter, the AIIMS is not amenable to the jurisdiction of the Consumer Fora for any medical negligence or deficiency in service is no longer res integra as it has been considered and decided by this Commission in original petition No. 224 of 1994 titled as Sailesh Munjal & Anr. vs. All India Institute of Medical Sciences & Ors. In that case also, one of the preliminary objections raised from the side of the opposite party-AIIMS was that the complaint against AIIMS and the doctors who rendered their services free of charge are not amenable under the provisions of the Consumer Protection Act. In support of the said objection, affidavit of Dr. P. Venugopal, the then Director, was also filed, through which it was sought to be explained that the diagnostic services provided and medical treatment given by AIIMS and the doctors, were free and only charge was made for consumables. This Commission, on a detailed examination of the said plea of the AIIMS and on consideration of the relevant provisions and the law laid down by the Apex Court in the case of All India Institute of Medical Sciences vs. V. P. Shantha (supra), rejected the said plea of AIIMS by holding as under:- "Considering the aforesaid statement in the affidavit, it would be difficult to hold that services rendered by the AIIMS would not be covered by the provisions of Section 2(1)(o) of the Act as service is not free of charge " may be subsidized to a large extent. The decision rendered by the Apex Court is binding on all force, and, therefore, there is no alternative but to hold that the services rendered at the AIIMS would be covered by the provisions of the Act, despite the fact that it is established for educational and research purpose. The reason being " it is not covered by exclusion clause, namely, "service does not include the rendering of service free of cost". Hence, we reject the first preliminary contention".

The affidavit of Dr. D. K. Sharma, Medical Superintendent, AIIMS filed in the present proceeding does not alter the factual or legal position in any way and, in fact, the affidavit itself seeks support from the affidavit of Dr. P. Benugopal, Director, AIIMS on consideration of which, this Commission has rejected the objection of the AIIMS.

AGGRIEVED by the said finding of this Commission, AIIMS had filed civil appeal No. 5652 of 2004 but in view of the dismissal of the civil appeal No. 4992 of 2004 filed by the complainant, AIIMS did not press the appeal filed by it and, therefore, the Supreme Court dismissed the said appeal also leaving the question of law open. Mr. Gupta has strongly argued that since the Supreme Court has left the question open, this Commission may decide the issue by reconsidering the earlier decision of this Commission dated 20.5.2004 passed in original petition No. 224 of 1994. We are afraid we cannot agree with this submission because the said decision was rendered by a five-Member bench of this Commission and unless it is upset by the Apex Court, the same is binding on all Consumer Fora. We, therefore, reject the objection of AIIMS that it is not rendering any service within the meaning of section 2(1)(o) of the Consumer Protection Act 1986 and the complainant was not a consumer within the meaning of the term under the said Act and the State Commission had no jurisdiction to entertain the complaint against it. Mr. Gupta has also assailed the finding of the State Commission holding the appellant and its doctors guilty of medical negligence and deficiency in service, on the ground that it is not based on correct and proper appreciation of the facts and circumstances of the case, the evidence and material produced on record and is also not in consonance with the established legal position. In this connection, Mr. Gupta contended the State Commission has wrongly arrived at a conclusion that the tumor was neither benign nor malignant and was not required to be removed by the process of Breast Conservation Technique (BCT), which is contrary to the medical treatises available on the subject and opinions of medical experts because in each and every case of tumor, it has to be removed by the procedure of Breast Conservation Technique (BCT). It is also submitted by him that as per the complainant''s own showing, the first test of FNAC showed suspicion of malignancy and, therefore, fresh FNAC test was conducted at AIIMS, which showed to be positive for cancer. It is sought to be explained that FNAC test which is being performed worldwide for detection of such malignancy does not give100 % foolproof result for cancer detection and there is always a scope of error by way of false positive result and such a result cannot be brought within the mischief of "negligence". The operating surgeon, going by such positive result, had operated upon the tumor and lymph nodes from the arm pit were removed by the process of BCT and, therefore, no negligence can be said to have been committed.

WE are not convinced with the argument because if the FNAC test is not considered foolproof and there is possibility of an error then certainly the test(s) which could establish the presence or absence of cancer with greater certainty ( e.g., core biopsy) should have been conducted before undertaking the surgery of this nature. Even if we give some concession on this score, it has been established on record beyond doubt that after doing such a surgery and obtaining the histopathological report in respect of the excised tumour and the breast segment, which ruled out malignancy vide report dated 16.7.1998, the complainant was advised Radiotherapy, which she underwent for several hours. The subsequent reports of Dr. Mohini Nayar as also that of the Royal Marsden NHS Trust categorically establish that there was no evidence of malignancy even from the FNAC aspirates. This would clearly establish that the reading of the FNAC by the Pathologist at the AIIMS was erroneous, as a result of which the complainant was unnecessarily/wrongly advised to undergo the breast surgery. Even if we assume that the removal of the tumor shown to be cancerous ( erroneously, though), by Breast Conservation Therapy was what a surgeon of ordinary skills would resort to ( based on the said FNAC reports) and no negligence is attributable on that account, still the appellants are squarely liable for the gross medical negligence and deficiency in service in exposing the complainant to subsequent radiotherapy even after the histopathology report of the excised tumour showed that there was no carcinoma. It is well known exposure to radiotherapy ( ionizing radiation) in large doses ( as is done in the cases of breast cancer with dosage of 50 Gy and above) can be highly injurious to the health of the exposed person, particularly when she / he had no cancer. WE have, therefore, no hesitation in holding the appellant negligent at least on two counts, viz., (i) having rendered an incorrect/wrong report of the FNAC holding that it was positive for malignancy/carcinoma, and (ii) for giving avoidable radiotherapy treatment to the complainant. For subjecting the complainant to unnecessary / avoidable radiotherapy, the appellant should compensate the complainant for both pecuniary and non-pecuniary damages suffered by her. It is common knowledge that the AIIMS is one of the premier medical institutes of the country known for providing the best medical diagnostic and treatment facilities to the patients. Patients from different parts of the country approach AIIMS for availing of such facilities with high expectations of getting the best medical treatment at the said Institute. With the kind of infrastructure and highly specialized faculty, the AIIMS should not have belied the just exceptions of the complainant by making incorrect diagnosis and giving wrong/unnecessary treatment as was given to her in the present case. The State Commission has awarded a lump sum compensation of Rs.5 lakh for mental agony, trauma, emotional suffering and disfigurement of her body causing immense life long loss of conjugal bliss. Having regard to the entirety of the facts and circumstances of the case and the nature and extent of the medical negligence and deficiency in service for which we have found the appellant guilty, in our view, the compensation so awarded appears to be justified.

IN the result, the appeal is dismissed with cost of Rs.10,000/-. During the pendency of this appeal, a sum of Rs. one lakh has already been paid to the respondent/complainant and, therefore, we direct the appellant to pay the balance amount of Rs. four lakh of the awarded amount to the complainant/respondent alongwith cost of Rs.10,000/- within four weeks from the date of this order, failing which the amount shall carry interest @12% per annum. With these observations, the appeal stands disposed of.