1.      The present Revision Petition has been filed under Section 21(b) of the Consumer Protection Act, 1986 (the “Act”) against order dated 24.04.2018, passed by the State Consumer Disputes Redressal Commission, West Bengal (‘State Commission’) in First Appeal No. 966 of 2016. In this, the Appeal by Respondent/ Complainant was allowed, thereby setting aside the District Consumer Disputes Redressal, Paschim Medinipur (“District Forum”) order in CC No. 137 of 2014 dated 31.08.2016, wherein the Complainant’s complaint was dismissed.

2.      For convenience, the parties in the present matter are referred as per the Complaint before District Forum. Amalendu Bhattacharjee is the Complainant (Respondent herein) whereas Dr. Ambujaksha Sinha Mahapatra is referred as OP-1 (Petitioner No. 1 herein) and Medinipur Nursing Home is referred as OP-2 (Petitioner No. 2 herein).

3.      Brief facts of the case, as per the Complainant, are that the Complainant (Respondent herein) suffering from abdominal pain, was admitted to OP-2 Nursing Home on 12.08.2014 under the care of OP-1 Doctor. Various blood tests and ultrasound (USG) of the abdomen were conducted, and reports were provided to OP-1 on 13.08.2014. Despite the USG report indicating a normal pancreas, OP-1 diagnosed the patient with acute pancreatitis and treated him from 12.08.2014 to 18.08.2014. On 18.08.2014, the patient was discharged and referred to a Super Speciality Medical Centre for better treatment, despite the initial USG report showing normal pancreatic conditions. Dissatisfied with the treatment, the patient was taken to the Asian Institute of Gastroenterology, Hyderabad on 15.08.2014. A second USG held on 20.08.2014 confirmed that the pancreas was normal in size and contour, with no signs of pancreatitis. An MRCP report from LUCID Medical Diagnostic Pvt. Ltd. also confirmed the normal condition of the pancreas. The Complainant alleged that the wrong diagnosis and treatment by OP-1 led to unnecessary suffering and expenses amounting to about Rs. 2 Lakhs. Being aggrieved, he filed a Consumer Complaint before the District Forum seeking compensation of Rs.10 Lakh for deficiency in service and cost of proceeding.

Top of Form4.      The OP-1 and 2 filed a joint written objection denying and disputing the case of the complainant, asserting that there was no medical negligence on their part. They averred that on 12.08.2014, the complainant met OP-1 at Spondan Nursing Home cum Hospital with complaints of abdominal pain around 8 to 9 PM. OP-1 advised hospital admission, but the complainant and his party requested to be admitted under OP-1's care in any nursing home. Subsequently, he was admitted to Medinipur Nursing Home where OP-1 who is a qualified MD physician treated him. OP-1 suggested an abdomen USG along with some clinical and pathological tests. The diagnosis of acute pancreatitis was based on clinical findings: pain in the upper abdomen, deep tenderness in upper abdomen and elevated levels of serum amylase and lipase in the blood report. The treatment followed the guidelines from Davidson's medical textbook. Thus, the diagnosis and treatment were in-line with standard medical practice. OP-1 referred him to a better medical facility for further treatment, indicating no negligence. OP-1 contended that no wrong treatment was administered, and the patient's health condition did not deteriorate due to his treatment. The case of the complainant lacks expert report or opinion to substantiate claims of medical negligence. The OPs sought for dismissal of the complaint with costs as the diagnosis and treatment were appropriate, followed standard medical protocols. The case was without sufficient evidence of medical negligence. They emphasized that the referral to a better-equipped medical centre for further treatment demonstrates a commitment to proper patient care.

5.      The learned District Forum vide Order dated 31.08.2016, dismissed the complaint with the following reason /findings:

“Points for decision

1) Is the case maintainable in it's present form and prayer ?

2) Was there any medical negligence on the part of the opposite parties as alleged?

3) Is the complainant entitled to get the reliefs, as sought for?

                               Decision with reasons

  For the sake of convenience and brevity, all the above points are taken up together for consideration.

  Facts remain admitted that on 12/08/2014, the complainant met the opposite party no.1-Dr. A.S. Mahapatra with complain of pain in abdomen and after examining him, opposite party no.1 advised the complainant to take admission in the hospital. It is further admitted by the parties that in spite of such advice, the complainant and his family members requested the opposite party no.1 to admit the complainant under him in any nursing home at Medinipur and accordingly the complainant was admitted in Medinipur Nursing Home. Admittedly, opposite party no.1 advised for USG of whole abdomen of the complainant and other blood test and on perusal of all reports including report of USG, opposite party no.1 diagnosed that it is a case of acute pancreatitis and on 18/08/2014 he referred the complainant to any sophisticated medical centre for better management. According to the complainant, although in USG report it was opined that the Pancreas is normal in size but without perusing the said report, opposite party no.1 wrongly diagnosed that the complainant was suffering from acute pancreatitis and he referred the complainant to any sophisticated medical centre for better management. It is the allegation of the complainant that for such wrong diagnosis, he had go to Asian Institute of Gastroenterology at Hyderabad and there it was found by the doctors that the Pancreas is normal in size and he was treated there and incurred medical expenditure of Rs.2,00,000 for medical treatment in the said institute. We have perused the medical prescription (Exhibit-6) and discharged certificate (Exhibit-7) issued by opposite party no.l as well as the report of USG (Exhibit-5). On perusal of those documents, we find that as per advice of opposite party no.1, USG of whole abdomen of the complainant was done in Medinipur Scan Centre and it was opined by the Radiologist that Pancreas is normal in size. From exhibit 7 we find that opposite party no.1 diagnosed acute pancreatitis and he referred the complainant on 18/08/2014 to any sophisticated medical centre for better treatment. It is the case of the complainant that thereafter he went to Asian Institute of Gastroenterology at Hyderabad and there he was treated and it was found after examination by the doctors that the Pancreas is normal in size. To prove his said case, the complainant examined no doctors of the said institute" at Hyderabad. For the sake of argument if we accept the case of the complainant that the doctor of Asian Institute of Gastroenterology at Hyderabad was of the view that Pancreas of the complainant was normal and it was not a case of acute pancreatitis, even then such diagnosis regarding acute pancreatitis of the opposite party no.1 cannot be said to be medical negligence particularly when PW-2 Dr. Mrinmoy Sarkar, the Radiologist, who prepared that USG report in his cross-examination has stated that "Pancreas is not always detected by USG". So if opposite party no.1 did not rely upon that USG report and after seeing symptoms of the complainant he diagnosed that it was a case of acute pancreatitis, such act or diagnosis cannot be said to be an act of medical negligence particularly when the opposite party no.1 did not detain the complainant for treatment under him and he referred the complainant to any medical centre for better treatment. Therefore we are of the view that there was no medical negligence on the part of the opposite party no.1 for his alleged wrong diagnosis. The petition of complaint is therefore liable to be dismissed. Hence, it is,

ORDERED,

that the complaint case no.137/2014 is hereby dismissed on contest but in the circumstances without cost.”

6.      Being aggrieved, the Complainant filed FA No. A/966/2016 and the State Commission vide order dated 24.04.2018 allowed the appeal with following observations:-

“Heard both the sides. Considered their respective submissions and perused the materials on record.

Discharge summary dated 18.8.2014, as available on record, exhibits that the ailment of the Appellant/Complainant was diagnosed by the Respondent 1/Op 1 Doctor as "acute pancreatitis" with reference to USG report dated 13.8.2014 to the effect 'sludge in GB, tenderness in Stomach and duodenum, indicating no pancreatitis'.

The first USG report was also corroborated by the second USG report dated 20.8.2014 and MRCP report dated 20.8.2014 where there was no indication of Pancreatitis.

The prescription dated nil by the Respondent No.1/Op 1 Doctor, as available on records does not reveal any noting of clinical symptoms of acute Pancreatitis, such as (i) Persistent upper abdominal pain radiating into back and aggravating by rich food, (ii) swollen and tender abdomen, (iii) Nausea and vomiting, (iv) fever, (v) Rapid pulse (vi) increased heart rate as revealed from the Publication in website www.mayoclinic.org/ pancreatitis as was diagnosed and treated by the Respondent 1 /OP 1 Doctor despite no impression of Pancreatitis in the USG report dated 18.8.2014 which was produced before the Respondent 1/Op 1 Doctor.

Clinical symptoms having not been reliable the radiological and Sonography tests is done as per standard treatment Protocol for ascertaining proper diagnosis .

Pancreas is not always detected by USG as the Respondent 1/OP 1 has taken recourse to, is negated by detection of Pancreas in the USG repots available on record.

The foregoing facts, evidence on records clearly indicate that the Respondent 1/OP 1 Doctor did not diagnose and treat the Appellant/Complainant with reasonable care, skill and standard treatment protocol, and hence there is deficiency in service as well resultant medical negligence on behalf of the Respondent 1/OP 1 doctor.

The foregoing facts and observation clearly indicate that three essential components of medical negligence i.e. “duty”, "breach" and "resultant damage" as was held by the Hon’ble Supreme Court in Jacob Mathew -Vs- State of Punjab, reported in"(2005)6 SCC 1, are present in the case on hand.

Another decision of the Hon'ble Supreme Court in Achutrao Haribhan Khodwa Vs- State of Maharashtra and Ann reported in 1998 SCC(1) 634, where the Hon'ble Supreme Court held that in cases where the Doctors act carelessly and in the manner unexpected of medical practitioner action in Torts would be maintainable.

Respondent No 2/Op no2 Nursing Home is also vicariously liable for its failure to ensure careful and reasonable care of the patient by the treating doctor concerned engaged with it for providing careful and reasonable service to the patient.

Consequently, the instant Appeal deserves to be allowed and accordingly allowed, the impugned order which appears to have been passed without taking into proper consideration the evidence on record i.e. the USG reports and MRCP report, is set aside and the Complaint case concerned is restored.

The Respondent 1/OP 1 Doctor and the Respondent 2/OP 2 Nursing Home are directed to pay, within 45 days from the date of the order, to the complainant Rs.2 Lakhs and Rs.1 Lakh respectively as compensation which appears to be just and reasonable.

The instant Appeal is disposed of in the aforesaid manner.”

7.      Being dissatisfied by the Impugned Order dated 24.04.2018 passed by the State Commission, the Petitioners/OP No. 1 & 2 filed the instant Revision Petition No. 1670 of 2018 mainly advancing the following grounds in the Revision Petition:

A. The State Commission allowed the appeal without due evaluation the merits of the case and is riddled with gross illegalities and material irregularities. The order dated 24.04.2018 is without jurisdiction, wrong, and illegal.

B.  The State Commission failed to apply its judicial mind while passing the order, making it illegal and liable to be set aside.

C.  The Commission failed to appreciate the circumstances of the case while considering it under the Act, 1986.

D.  The State Commission exceeded its jurisdiction by arriving at a wrong finding with no evidence. There is no evidence to support the claim of wrong diagnosis. There was no expert medical opinion.

8.      Upon notice to the instant Revision Petition, Respondent / Complainant appeared and filed written submission and appreciated the impugned order passed by the learned State Commission.

9.      In his arguments, the learned Counsel for Petitioners reiterated the facts of the case, evidence and the written statement filed before the lower fora and contended that the learned District Forum, after thoroughly perusing medical prescriptions, reports, and other evidence, correctly dismissed the complainant's petition, concluding that there was no act of medical negligence. The learned State Commission erred in reversing the District Forum's judgment and directing the OPs to pay compensation within 45 days. The State Commission allowed the appeal without seeking an opinion from medical experts, relying solely on the USG and MRCP reports, and disregarding the evidence provided by the radiologist and relying on a misplaced judgment reported in (2005)6SCC1 as doctors from the Asian Institute of Gastroenterology did not provide evidence or challenge the diagnosis method of the petitioner doctor. The radiologist who performed the USG at Medinipur Nursing Home testified that pancreatitis is not always detectable by USG, recommending further confirmation. The State Commission wrongly rendered undue weight to the radiological reports, without consulting medical experts. The complainant did not make any allegations against the nursing home (petitioner No.2) concerning care, billing, or attitude. Therefore, the nursing home should not be held guilty of deficiency in service. The complainant does not fall under the definition of a 'consumer' under the Act making the complaint non-maintainable. The State Commission declared ‘medical negligence without referring the matter to any medical council or expert, which is procedurally and substantively incorrect. The complainant was treated as per standard protocol outlined by Dr. Davidson's medical reference book. The OPs diagnosed based on clinical symptoms and pathological reports, without any negligence. The State Commission improperly prioritized radiological and sonography tests over clinical symptoms, which is incorrect as both are necessary for diagnosing acute pancreatitis. Referring the complainant to a more sophisticated hospital for better treatment cannot be considered negligence. Various judgments from the Apex Court and NCDRC support that the skill of medical practitioners varies, and negligence must be proven by the complainant. The State Commission failed to explain how the OPs are responsible for negligence, as the necessary elements (duty of care, breach of duty, and injury due to breach) were not established. Negligence must be established and cannot be presumed, as supported by the case of Kanhiya Kumar Singh vs. Park Medicare Centre, 111 (1999) CPJ 9 (NC)-(2000) NCJ (NC) 12. The Appeal Forum was obligated to establish negligence. The petitioners relied on Martin F.D. Souza vs. Mohd. Ishav (AIR 2009 SC 2049) as regards establishing negligence. The learned Counsel for the Petitioners asserted that the State Commission's judgment should be set aside due to procedural errors, lack of expert opinions, reliance on incorrect precedents, and failure to establish medical negligence. He therefore sought setting aside of the order of the learned State Commission and allowing this Revision Petition.

10.    The learned Counsel for the Respondent/ Complainant reiterated the facts of the Complaint and argued in favour of the impugned order passed by the State Commission. He asserted that OPs were negligent in diagnosing and treating Respondent. Referring the case of Rajmal Singh vs. Dr. Madhu Gupta (2014 SCC Online NCDRC 245), he argued that grossly wrong diagnosis cannot be dismissed as an error of judgment but constitutes negligence. The wrong diagnosis and resultant incorrect treatment, against the USG report dated 13.08.2014, indicate a deficiency in service and medical negligence, as Respondent No.1 did not receive the required treatment. The Calcutta High Court in Dr. Pabitra vs. State of West Bengal & Anr (2023 SCC Online Cal 3677) observed that medical negligence arises from lack of proper care during diagnosis, treatment, or surgery. The Court highlighted that doctors have a duty of care towards their patients, and a breach of this duty constitutes negligence. Citing Jacob Mathew vs. State of Punjab (2005) 6 SCC 1, the essential components of negligence (duty, breach, and resulting damage) were emphasized. The Supreme Court stated that negligence in the medical profession requires more than just an error of judgment or lack of care. Referencing Whitehouse v. Jordan (1981) 1 All ER 267, the counsel argued that an error of judgment might not be negligence if it is one that a reasonable competent professional might make under similar circumstances. He asserted that there is ample evidence that Respondent was not suffering from pancreatic disorder. Despite the USG report dated 13.08.2014 indicating a normal pancreas, the Petitioner diagnosed and treated him for acute pancreatitis without further clinical examinations, leading to deterioration of the patient's condition. Medical negligence occurs when a healthcare provider fails to meet the standard of care, causing harm to the patient. The USG report clearly stated normal pancreas, yet the Petitioner treated Respondent No.1 for acute pancreatitis without further tests. The Petitioner either lacked the requisite skill or did not exercise reasonable competence in treating Respondent No.1, leading to deterioration of the patient's condition. This failure to exercise reasonable competence constitutes medical negligence. The learned counsel for the Complainant asserted that the Petitioner's actions constituted medical negligence due to incorrect diagnosis and treatment against the evidence provided, failure to adhere to standard care protocols, and lack of reasonable competence, leading to the deterioration of his condition He sought to dismiss the present Revision Petition with costs.

11.    I have examined the pleadings and associated documents placed on record and rendered thoughtful consideration to the arguments advanced by the learned Counsels for both the parties.

12.    It is admitted position that on 12.08.2014, the complainant had visited OP-1 with complaint of abdominal pain. After clinical examination of the complainant, OP-1 advised him to take admission in a local hospital. At that stage, the complainant and his family sought OP-1 to admit him under his supervision in any nursing home at Medinipur. Thereafter, the complainant was admitted in Medinipur Nursing Home. It is also undisputed that OP-1 advised for USG of whole abdomen for the complainant and certain other blood tests were also prescribed and were conducted. After the review of the reports, including USG report, OP-1 diagnosed the complainant to be a case of acute pancreatitis. Accordingly, on 18.08.2014, the complainant was referred to any major hospital for better management of his medical condition.

13.    It is the contention of the complainant that, although in USG report revealed normal size of the pancreas, by overruling the USG report, OP-1 wrongly diagnosed him to be suffering from acute pancreatitis and referred him to a major hospital by making wrong diagnosis. Based on such wrong diagnosis, he had go to Asian Institute of Gastroenterology at Hyderabad and there it was found by the doctors that his pancreas are of normal in size. As he was treated there, he incurred Rs.2,00,000 as medical expenditures for medical treatment in the said institute.

14.    The Discharge Summary dated 18.8.2014 on record reveals that the complainant was diagnosed by OP-1 to be a case of as "acute pancreatitis" with reference to USG report dated 13.8.2014 to the effect that 'sludge in GB, tenderness in Stomach and duodenum, indicating no pancreatitis'. This USG report was corroborated by the second USG report dated 20.8.2014 and MRCP report dated 20.8.2014 where there was no indication of any pancreatitis. The medical records prepared by OP-1 did not reveal any clinical symptoms of acute pancreatitis, such as persistent upper abdominal pain radiating into back and aggravating by rich food, swollen and tender abdomen, nausea and vomiting, fever, rapid pulse and increased heart rate as part of the known symptoms. The contention of the complainant is that he was diagnosed and treated OP-1, despite no impressions of pancreatitis in the USG report dated 18.8.2014. It is the contention of the OPs that as mere clinical symptoms are not reliable, OP-1 caused radiological and sonography tests as per standard medical treatment protocol for proper diagnosis. It is uncontested position that pancreas is not always detected by USG. Admittedly, as per the USG report and opinion of the Radiologist, the pancreas of the complainant is of normal in size. However, OP-1 diagnosed him as a case of acute pancreatitis and referred him on 18.08.2014 to any major hospital for better treatment. Thus, the patient was examined at Asian Institute of Gastroenterology, Hyderabad and it was found that his pancreas is normal in size. No doctor of Asian Institute of Gastroenterology was, however, examined. Even if his pancreas is found to be of normal size, and it was not a case of acute pancreatitis, the same does not by itself establish medical negligence on the part of OP-1 and 2. In any case, mere normal USG report of pancreas by itself does not rule out absence of abnormality. This is a case where, after due consideration of symptoms of the complainant and the USG report, the OPs diagnosed the patient to be a case of acute pancreatitis and, without detaining him, referred him to a major hospital for evaluation. By no stretch of imagination, such action and procedure adopted by OPs constitute medical negligence on their part.

15.    Based on the above discussions and on careful perusal of material on record, the order passed by the learned State Commission dated 24.04.2018 is unsustainable and is, therefore, set aside. The order of the learned District Forum dated 31.08.2016 is upheld, this Revision Petition No. 1670 of 2018 is allowed and the complaint is dismissed.

16.    There shall be no orders as to costs. All pending applications, if any, also stand disposed of accordingly.