ORDER
B.K. Taimni, Member
1. This Revision Petition has been filed by the Complainant against the order of the State Commissioner dismissing the appeal filed by the Complainant against the order of the District Forum dismissing the complaint.
2. Brief facts of the case are the deceased husband of the Complainant approached the Respondent, Dr. Aggarwal on 19.9.93 with swelling on the neck, fever and certain other complaints. The Consulting Physician advised him for gland biopsy and FNAC. The patient got done FNAC test from Respondent No. 4 and was diagnosed with “Cytologically consistent with features of tuberculosis, lymphadenitis associated with secondary pyogenic infection”. When the report was shown to Respondent No. 1, he stated treatment for tuberculosis on 24.9.93. The deceased never got back to Respondent No. 1 instead he approached Respondent No. 3 on 27.9.93 who on seeing the report and examination also prescribed medicines for treatment of tuberculosis for a period of two months. Same was repeated by Respondent No.3 on 22.12.93. In the meantime, the deceased contacted Respondent No. 2 on 30.10.93. He also advised and suggested treatment for tuberculosis. Upon not getting any relief, the deceased went to Bhopal and got a biopsy done at Tandon Pathology Lab. On 12.1.94 who diagnosed the deceased as having cancer. Confirmation of his came from the cancer Hospital, Gwalior on 2.2.94. The husband of the complainant died on 2.5.94. A complaint was filed by the son of the deceased which was withdrawn as not pressed. Than another complaint was filed before the District Forum by the wife of the deceased Smt. Rani Devi alis Ram Shri. When after hearing both the parties, the District Forum dismissed the complaint, an appeal was filed before the State Commission, the same was also dismissed as no negligence could be found to be proved against the Respondent-Hence this Revision Petition.
3. It is argued by the Id. Counsel for the Petitioner that it is a clear case of negligence on the part of the Respondent, Complainant No. 1 could not diagnose the deceased with having cancer. It is the report of the Respondent No. 4 which is at the base of it all. It is a question of wrong diagnosis on the part of all the Respondents. Had they diagnosed the deceased having cancer in time, he would have been treated and saved. According to him, it is the incorrect diagnose of the deceased which epitomizes the negligence on the part of the Respondent. On the other hand, it was argued by the Id. Counsels for the Respondent that if there is anyone at fault it is the deceased. He was advised gland-biopsy and F.N.A.C. He only got one test done. Had he got his biopsy done initially, that would have determined the status of the patient. Doctors can only treat based on diagnostic report. There has been no negligence on their part.
4. We have seen the material on record and heard the arguments. We see that Respondent No. 1 had specifically advised, Gland-Biopsy FNAC. In the written version filed by the Respondent No. 4 that her report “was given on the basis of symptoms which came after observation of the material made available by the husband of the appellant. No where, we see that it is the case of the complainant that deceased offered but was refused biopsy of he gland. Base don whatever test report, the deceased produced, Respondent Nos. 1 to 3 treated on those lines. In fact the deceased never came back to the 1st Respondent after 24.4.93 i.e.f after he came to show the report obtained from Respondent No. 4. The deceased met Respondent No. 2 only once, the deceased consulted Respondent No. 3 on 27.3.93 and came back to him on 30.1.93. It is only after two and half month that he goes to Tandon Pathology Lab in Bhopal where he is diagnosed with having cancer. All the pleas raised by the Complainant were raised before the District Forum and State Commission and after careful examination of all the points raised by the Complainant, found no merit in the case and dismissed the complaint/appeal filed by the Complainant.
5. Main ground raised before us is that it was a question of wrong diagnosis. Physicians/the treating doctors could not be said to be negligent as they had the report of from a Histopathylogist/Cytologist, Respondent No. 4 that “Malignant cells are not detected.” The specimen given was for FNAC. The deceased never offered himself for gland biopsy till very late, and on his own volition, after three and half months and that too at Bhopal. What happened between 30.10.93, the last time he/deceased consulted Respondent No. 3 upto 12.1.94 is not known. There is a reputed cancer Hospital with full facilities at Gwalior. Why did the deceased not go for consultation after he was allegedly not satisfied with the treatment of Respondent No. 3 as he was not getting relief.
6. In our view all the four Respondents agreed to treat the deceased as they were qualified to does so. There is not expert evidence to prove to the contrary. In the instant case, the Respondent did not their duty as cast upon them. Nothing has been shown at any stage to how that they did not do what ought to have been doe or they did something which a doctor possessing ordinary skills ought not to have done. There is no evidence to prove this basis tenet of medical negligence. Even the main allegation of wrong diagnosis is not proved. No evidence is led in this regard. No cross-examination of the doctor, no expert evidence that the diagnostic test or the line of treatment adopted/advised was not as per medical norms. In the absence of this, the petition fails and is dismissed. No order as costs.