Order No. 18 Dt.12.06.2015
This is the case for the complaint u/s 12 of C.P. Act’ 1986, filed by Raju Sk. praying for relief for Rs.15 Lakhs as compensation for mental agony and harassment caused. The complainant represents his minor daughter Rumela Khatun who is 16 years of age and a student. She was suffering from abdominal pain which was suddenly ensued on 16.07.2013 and she was brought at Malda Medical College and Hospital by the complainant.
That the doctor of the Malda Medical College and Hospital examined Rumela Khatun and advised Raju Sk. to take her daughter for USG of whole abdomen, accordingly, the USG was done and some medicines were administered. After having medicine the abdominal pain of Rumela Khatun was cured and on 17.07.2013 she was discharged from the Medical College and Hospital. That on 26.08.2013 Rumela Khatun again felt abdominal pain and again she was taken to Malda Medical College and Hospital. The doctor advised for USG of whole abdomen and she was admitted at the hospital. That on 27.08.2013 the complainant took his daughter at Apex Scan Centre for USG. The report generated by the Apex Scan Centre reads as follows:
“Gall bladder is distended. Wall is thickened. Few calculi size about 6 to 8 mm are seen within the neck region of gall bladder. Minimum sludge is seen. That the doctor perused the report and said Rumela Khatun is suffering from gall bladder stone and that needs immediate surgical correction.
That the complainant is a day labour and lives hand to mouth. So he was lost his sanity, vivacity and normal capacity of work. After knowing such report and subsequent advice of doctor the complainant had not in a position to pay the operation charges so he administered medicines and pain was removed. On 30.08.2013 she was discharged. On 31.08.2013 the complainant took her daughter to Dr. M.K. Jha and as per his advice took USG at BRDC and the report of BRDC said, “Gall bladder of normal shape and size with smooth regular outlines. No evidence of calculi.” Thereafter, the complainant charged O.P.2 Dr. Chanti Basak for being responsible for issuance of manufactured report which according to complainant could lead to detrimental consequence and thus he adopted unfair trade practice to make quick bucks. The complainant as per facts and circumstances of the case prayed for relief as i) compensation for mental agony and harassment caused assessed Rs. 15 lacs. ii) cost of proceeding iii) other relief.
That the O.P. No. 1 i.e. Apex Scan Centre filed written objection that the complaint is not maintainable according to law and the contents of petition are false and frivolous and no cause of action stand against this O.P. The O.P. mentioned in para -7 in the written objection that the complainant is representing his minor daughter who was suffering from abdominal pain which was suddenly ensued on 16.07.2013 are not known to this O.P. He also said that the complainant was brought before the Malda Medical College and Hospital by the complainant and doctor of Medical College Hospital examined and advised for USG of abdomen, accordingly USG was done and some medicines were prescribed is also not known. Thereafter, O.P. 1 did not agree to the information of the abdominal pain of complainant’s daughter i.e. Rumela Khatun, her curing on 17.07.2013 and her discharge from the Medical College and Hospital and that on 26.08.2013 Rumela Khatun again felt abdominal pain and was taken to Malda Medical College and Hospital and doctor advised for USG of abdomen and she was admitted at the Hospital. He also denied the charge of negligence and insincerity on their part rather helped the petitioner to set appropriate report and so prayed for dismissal of the case with cost.
That the complainant took his daughter at the Apex Scan Centre for USG and the report generated by Apex Scan Centre that “ Gall Bladder is distended, wall is thickened. Few Calculi size about 6 to 8 mm. are seen within the neck region of gall bladder. Minimum sludge is seen.” Thereafter, doctor perused the report and said Rumela Khatun is suffering from gall bladder stone and that needs immediate surgical correction.
O.P. 2 Dr. Chandi Charan Basak in his written objection categorically denied the statement regarding giving suggestion for taking medicine and undergoing operation of patient, as raised by complaint and on the other hand submitted some explanation and references for the steps of gall bladder stone dissolution and specifically mentioned that he has followed the test as per standard yardstick and having no negligence on his part and he is being sincere, prayed for dismissal of the case with cost to the petitioner.
O.P. No.3 the Chief Medical Officer of CMOH Office, Malda did not appear and as per law negligence cannot be run against Govt. doctor.
On the above cases of the parties the following issues are framed:-
- Whether the case 35/2014 is maintainabled in its present form?
- Whether the petitioner has any cause of action to file the case?
- Whether there is any deficiency in service or unfair trade practice on the part of the O.Ps.?
- Whether the petitioner is entitled to get any relief as prayed for?
;:DECISION WITH REASONS::
Issue Nos. 1,2,3 & 4
All the issues are taken up together for the sake of convenience and brevity of discussion and to skip of reiteration and also all these issues are interrelated and interdependent.
This Forum perused all the documents and noted evidences of both parties. It is a fact that the petitioner admitted her daughter Rumela Khatun with abdominal pain at Malda Medical College & Hospital on 16.07.2013 and returned home on 17.07.2013 for the pain being cured for administering of medicines prescribed by hospital, however, again admitted in the same hospital with similar type of pain on 26.08.2013 and as per hospitals advice, took USG of his daughter at Apex Scan Centre on 27.08.2013 and found presence of gall bladder stone in abdomen but could not undertake gall bladder stone operation and based on medicines returned home as per discharge by hospital for relieving of pain of the patient. Thereafter, the patient was taken to Dr. M.K. Jha, had USG testing at BRDC and as per report of BRDC, gall bladder stone was absent. After the report of BRDC, the complainant after about 10 months filed this case castigating O.P.1 for unfair trade practice and O.P.2 for providing manufactured report both being for squeezing money from petitioner and also for a possibility of having detrimental consequences in view of the report of Apex Scan Centre.
Along with these facts, two events were noted by this Forum. First, P.W.-1 in this evidence admitted that he brought her daughter to Malda Hospital for abdominal pain before two months of the present evidence of hospitalization at Malda Medical College on 16.07.2013 and again on 26.08.2013 and testing at Apex on 27.08.2013 and visiting M.K. Jha and testing at BRDC on 31.08.2013. Secondly, the patient Rumela Khatun was treated at Malda Medical College Hospital on 12.09.2013 afterwards for the same reason of abdominal pain and had medicines prescribed by doctor of hospital. Thereafter, there is no any report of facts regarding the status of the patient at least upto the time of running of this case at this Forum.
These two hospital events as prior and post events compared to the present status along with the treatment steps at present proves that Rumela Khatun was a sufferer of abdominal pain at different periods of time and she happened to be relieved of such pains for a number of times. It is admitted fact that she used to take medicines for her pain as per doctor’s diagnosis and treatment.
Secondly, from the question of unfair trade practice by O.P.1, it appears that the question of unfair trade practice can only be related to the intension of O.P.1 for creating manufacturing report for squeezing money from the complainant party. The question of squeezing money does not stand on reasons as the patient had gone to O.P.1’s centre for once for undertaking USG and that is as per doctor’s advice. Petitioner might have agreed to the terms and conditions of payment for USG testing and paid accordingly and received report and there is no evidence regarding complaint on the part of the complainant for false report and the question of squeezing money by O.P.1 and hence the allegation does not stand the test of reason and time.
Thirdly, O.P.-2 as per his evidence, is an expert in the line with 15 years of experience and his skill and ability was not at all questioned at the time of evidence and as such his statement of sincere work does not come under the scanner of suspicion, also he being a USG specialist physician, is fully dependent on the working of USG machine which is a sophisticated, automatic instrumental apparatus based on the theories of physics and lighting, and the machines data read out is the main source of interpretation for a doctor regarding the disease status of the patient examined. As a result, before making a physician responsible for manufacturing report, lot of facts and reasons are needed to be established about the poor hand – skill and poor visibility –skill of the physician related to operation and reading of the USG machine. Practically, USG being a regular running machine is likely to be reliable in general, hence, a physician cannot be made responsible guessing for coming of wrong report from the USG machine.
Fourthly, the allegation of USG physicians advice for immediate operation does not hold water as in general, while USG physician and the referring physician are different one and one does not generally enter into others domain. Here O.P. 2 is specifically present as USG testing physician as sonographer and therefore, complaint against him for his advice for immediate operation is not true as there is no such documents in this score.
Fifthly, in case the patient party could appear before O.P.2 with the report of later held USG testing, there could have been a chance to relook into the report given by O.P.2 in the interest of medical science and actually that cannot be obliterated as O.P.2 is a specialist with 15 years of experience.
Lastly, it appears that dissolution of gall bladder stone is a complicated issue of body – physiology and as there are conflicting theories regarding the presence of stone and its removal through operation, through medicine and even through food, reaching to the conclusion of physician’s negligence, is a difficult proposition and one have to wait for further research development in the field of testing machinery automation, vision study and date mining.
Hence, with all these facts of this case, discussed above both O.P.1 and O.P.2 cannot be made responsible for foul play. On the other hand, the complainant did not appear in this case in clean hand mainly in respect of her daughter’s long treatment steps, history of disease appearance, facts of disease cessation etc. The complainant also did not reach to concerned physician of USG expertise for his re-look into the reports for the sake of medical science development and betterment of a young patient like a growing girl of 16 years age under this case and thus the claim case of the petitioner fails.
In the result, the claim case fails.
Proper fee paid.
Hence, ordered
that the Malda D.F.C. Case No. 35/2014 is hereby dismissed on contest against O.P.1 and O.P.2 without cost.
Let a copy of this order be given to each of the parties free of cost.
