Haryana

Yamunanagar

CC/1098/2011

Renu W/o Kamaljeet - Complainant(s)

Versus

Chaudhary Ultrasound and X-ray Centre - Opp.Party(s)

D C Aggarwal

06 Mar 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA NAGAR

 

                                                                                          Complaint No. 1098 of 2011   

                                                                                          Date of institution: 21.10.2011

                                                                                          Date of decision: 06.03.2017

 

Renu aged about 25 years, w/o Shri Kamaljeet, resident of village Pansal, PO Azizpur Kalan, Tehsil Jagadhri, District Yamuna Nagar.

 

   …Complainant.

                                       Versus

1. Chaudhary Ultrasound & X-Ray Centre, near Veterinary Hospital, Opposite Saint Thomas School, Civil Lines, Jagadhri, District Yamuna Nagar, through its Proprietor Doctor Vinay Chaudhary.
2. The United Insurance Company Ltd. Opposite Madhu Hotel, Jagadhri Yamuna Nagar Road, Yamuna Nagar through its Branch Manager.
3. Shivani Hospital, through its Proprietor R/o Jaroda C-Gate, near Amrik Gas Agency, Jagadhri, District Yamuna Nagar.

 

                                                                                                            …Respondent.

 

BEFORE:         SH. ASHOK KUMAR GARG…………….. PRESIDENT

                         SH. S.C.SHARMA………………………….MEMBER

 

Present:          Shri DC Aggarwal, Advocate for complainant

                        Shri Amit Bansal, Advocate for OP No.1

                        Shri VPS Trehan, Advocate for OP No.2

                        Shri GS Manipur, Advocate for OP No.3.

 

ORDER (ASHOK KUMAR GARG, PRESIDENT)

 

1.                         The present complaint has been filed under Section 12 of the Consumer Protection Act, 1986.

2.                     Brief facts as alleged in the complaint are that complainant visited the respondent No.1 (hereinafter referred as OP No.1 Doctor), on 06.062011 as she was having some pain in her abdomen towards right side. The doctor after checking the complainant thoroughly got done ultrasound of the complainant and gave his report (Annexure C-9/C-13) in which he has mentioned that “thick, tabular, tender, non compressible structure suspended by fluid and get loops in right check fossa structure Appendix right renal colonli” and told that the said pain is of Appendix and suggested her to get operation immediately. On his advise, the complainant contacted the doctor of Shivani Hospital, Jagadhri on the basis of the report of the Ultrasound conducted by the OP No.1, the operation of the complainant for Appendix was conducted by the doctor of OP No.3 Hospital. During the operation, the doctor found that complainant was not having any complaint of appendix and he came to know that the Intestine (Aant) of the complainant was blast and due to that complainant became serious but with great difficulty and best efforts, the doctor of Shivani Hospital saved the life of complainant. The complainant was shocked to listen the same. The operation of the complainant for appendix was conducted on the basis of wrong Ultrasound report of the OP No.1 due to which the complainant has suffered mental agony, harassment, pains and financial loss which constitutes the deficiency in service and unfair trade practice on the part of the OP No.1. Due to wrong and Ultrasound report, the complainant has spent Rs.60,000/- on account of medicines, doctor fees, hospitalization etc. Lastly prayed for directing the OP to pay a sum of Rs.2 lacs on account of operation fee, medicine, mental agony, tension, harassment, pain etc. Hence, this complaint.  

3.                     Upon notice, OP No.1 appeared and filed its written statement taking some preliminary objection such as complaint is not legally maintainable as there was no negligence or deficiency in service on the part of the OP doctor; the complicated question of law and facts is involved in the present complaint, the Forum, which needs elaborate evidence has no jurisdiction to entertain and try and decide the present complaint and the Civil Court is best platform. The OP No.1 Dr. Vijay Chaudhary is a well qualified and renowned doctor in Yamuna Nagar District and he passed MBBS from Jiwaji University, Gwalior in the year 1978 and he passed his doctor of medicine in Radiology in the year 1982 and remained posted as Medical Officer in various Government Hospitals since 1983 to 2003 and took voluntary retirement in the year 2003. During Government service his career is throughout spotless. The true facts are that patient Renu aged about 22 years, came to the ultrasound centre of the answering OP on 06.06.2011 with an acute pain in the abdomen and she was put to probe and she was diagnosed “ASCITES” meaning thereby abnormal accumulation of fluid in the peritoneal cavety. It has been further mentioned that as per pleadings of the complainant, she was operated upon in Shivani Hospital, Jagadhri, the intestine (Aant) was ruptured, which shows that the cavity was having fluid which was diagnosed by the OP No.1 Doctor in his Ultrasonography report and the complainant has misconstrued the word  ASCITES with some other meaning. Not only this, the OP No.1 has also mentioned in his report that “thick, tabular, tender, non compressible structure surrounded by fluid and gut loops in right iliac fossa suggestive of Appendicitis-Right renal calculi, meaning thereby that there was fluid rupture of intestine or so many other reasons which the treating doctor has to co-relate with clinical examination and by x-ray etc. before putting the patient to operation, thereafter, and as such the answering OP is not liable in any manner. Whatsoever, It has been further mentioned that the doctor of the Shivani Hospital Jagadhri, Dr. Shivani Gupta is only BAMS (Ayurvedic) and she cannot perform surgery as per law and as per complaint it is she, who misguided the complainant; rather the patient should have gone to highly qualified surgeon instead of BAMS and as such the negligence lies either with the complainant herself or with doctor Shivani Gupta, who is a simple BAMS. Even, in the discharge slip card placed on file, the diagnosed is mentioned as Appendicitis with perforation with toxemia, which correlates with ultrasonography report given by the OP No.1 doctor and on merit contrverted the plea taken in the complaint and reiterated the stand taken in the preliminary objections and lastly prayed for dismissal of the complaint.

4.                     OP No.2 also appeared and filed its written statement being insurer of the OP No.1 taking some preliminary objections such as complaint is not maintainable as it involves complicacy of law and facts which requires lot of expertised medical advise and evidence etc. However, it is quite strange to note that the complainant for her abdomen pain without consulting any qualified surgeon/doctor of hospital on 06.06.2011 got ultrasound report directly from the OP No.1 i.e. Choundary Ultrasound &  X-ray centre, Civil Lines, Jagadhri and after that without consulting any surgeon got herself operated from Shivani Hospital, Jagadhri, upon the ultrasound report more so even in the whole complaint no where it has been mentioned the name of any doctor of Shivani Hospital, Jagadhri who has operated the complainant for Appendix. In fact, the negligence has been committed by the doctor of Shivani Hospital, Jagadhri, but the complaint has been filed qua the Dr. Vinay Chaudhary of the OP No.1 in connivance upon the ultrasound report whereas it has no where mentioned in the complaint which shows any such advise or suggestion that it requires appendix operation, complainant is bad for non joinder and mis joinder of necessary parties, Forum has no jurisdiction to try, hear and decide the present complaint and on merit  contrverted the plea taken in the complaint and reiterated the stands taken in the preliminary objection and lastly prayed for dismissal of the complaint.

5.                     OP No.3 i.e. Dr. Shivani Gupta, of Shivani Hospital, Jagadhri has also appeared and filed its written statement by taking some preliminary objections such as complainant is permanent patient of the OP No.3. First of all, she took treatment from the answering OP from 06.06.2011 to 18.06.2011 and after that from 01.05.2014 to 10.05.2014 and then 24.02.2015 to 28.02.2015 and if the complainant was not satisfied with the service of the OP No.3 doctor on her first admission in the year 2011 then why she is taking a regular treatment from the OP No.3 doctor as such the complaint is liable to dismissed. Further, it has been mentioned that Dr. Shivani Gupta is qualified doctor and the complainant came to the hospital on 06.06.2011 with the history of abdominal pain and she was admitted in the private room as indoor patient and was operated upon by Dr. Rajiv Airon, MBBS, MS (General Surgery), a well known surgeon of District Yamuna Nagar. The abdominal pain of the complainant was due to ASCITES which is a medical terminology, which means accumulation of fluid in the peritoneal cavity, which was due to rupture of intestine/appendicitis with perforation with toxemia (appendix is the part of large intestine) and the same was diagnosed by the OP No.1 in his Ultra sonography report and accordingly as per the ultra sonography report which was given by the OP No.1, the complainant was operated upon and she was discharged on 18.06.2011 from the hospital and as such there was no negligence on the part of the OP No.1 or OP No.3 and on merit it has been stated that complainant was never told that her intestine was blast instead of appendix as alleged (Appendix is a part of intestine). Further, it has also been mentioned that complainant has not spent Rs.60,000/- as alleged in the complaint, rather a sum of Rs.19,000/- in total was spent by the complainant on the complete treatment and lastly prayed for dismissal of the complaint qua the OP No.3.

6.                     In support of his case, complainant tendered into evidence her affidavit Ex.CW/A, photocopy of some rough receipt of amount as Annexure C-1 to C-7, photocopy of discharge slip of Shivani Hospital, Jagadhri as Annexure C-8 and C-14, photocopy of Ultrasound report dated 06.06.2011 as Annexure C-9 and C-13, photocopy of some other report of Lab as Annexure C-10 to C-12, photocopy of OPD of Rameshwar Dass memorial hospital as Annexure C-15 and closed her evidence.

7.                     On the other hand, learned counsel for the OP No.1 tendered into evidence short affidavit of OP No.1 Dr. Vijay Chaudhary, as Annexure RW/A, documents relating to education, qualification and experience as Annexure R-1 to R-14, photocopy of Insurance Cover Note as Annexure R-15 and closed the evidence on behalf of OP No.1.

8.                     Learned counsel for the OP No.2 closed the evidence on behalf of OP No.2 without tendering any evidence on 24.05.2016.

9.                     Learned counsel for the OP No.3 tendered into evidence affidavit of Smt. Shivani as Annexure RW3/A, photocopy of indoor patient treatment file of Smt. Renu, complainant from 06.06.2011 to 18.06.2011 as Annexure RW3/1, indoor treatment filed by Smt. Renu for the period of 01.05.2014 to 10.05.2014 as Annexure R3/2  and R3/3, indoor treatment filed by Smt. Renu for the period 24.02.2015 to 28.02.2015 as Annexure R3/4 and photocopy of Insurance Policy as Annexure R3/5 and closed the evidence on behalf of OP No.3.

10.                   We have heard the counsel for OP and have gone through the pleadings as well as documents placed on the file very carefully and minutely.

11.                   The only grievances of the complainant is that OP No.1 doctor gave a wrong ultrasound report mentioning therein that there is pain in the abdomen of the complainant due to appendix renal calculi and on the basis of that report complainant was operated by the doctors of the OP No.3 whereas during the operation the doctor of the OP no.3 found that complainant was not having any complaint of appendix but there was blast in intestine (Aant) of the complainant, due to which complainant has spent Rs.60,000/- on account of medicine, doctor fee, hospitalization. Learned counsel for the complainant further draw our attention towards ultra sound Report dated 06.06.2011 (Annexure C-9/C-13) and further also draw our attention towards discharge slip of the Shivani Hospital, Jagadhri (Annexure C-14) and argued that from these documents, it is clearly evident that OP No.1, doctor suggested problem of the appendix Right renal calculi in the abdomen of the complainant. Learned counsel for the complainant further draw our attention towards expenditure Bills (Annexure C-1 to C-7) and prayed for acceptance of the complaint.

12.                   Whereas on the other hand, learned counsel for the OP No.1 doctor argued at length that the complainant has twisted the facts of the case as per her own version whereas  no truth is attached with facts mentioned in the complaint. Learned counsel for the OP No.1 draw our attention towards the impugned report (Annexure C-9/C-13) dated 06.06.2011 (Annexure C-9/C-13) and argued that in this report the complainant was diagnosed as a case of “ASCITES” meaning thereby that accumulation of fluid in the peritoneal cavety and for the same diagnose the complainant was operated upon in the Shivani Hospital, Jagadhri i.e. hospital of OP No.3. This fact has also been admitted by the complainant in her complaint that the intestine (Aant) was raptured which shows that cavity was having fluid which was diagnosed by the OP No.1 doctor in his Ultra sonography report. But the complainant has misconstrued the word “ASCITES” with some other meaning. Further learned counsel for the OP NO.1 also argued at length that OP No.1 doctor is well qualified doctor having vast experience and his career during the Government service as well as private service remains spotless and draw our attention towards MBBS degree (Annexure R-1) and Degree of Doctor of Medicine (Annexure R-2) and other experience as well as diploma/conference certificates (Annexure R-3 to R-14). Learned counsel for the OP also referred the case law titled as “Usha Lakshman and others Vs. Dr. N. Chandrashekar & anr, 2016(2) CLT, Page 88, wherein it has been held that: -

Consumer Protection Act, 1986, Section 2 (1)(g)- Medical negligence Expert Evidence-Burden of proof- Held- Complainant has failed to adduce any expert evidence on account of which it could have been presumed that OPs were deficient in providing treatment-OPs were not required to prove that they were not negligent in giving treatment.

 

            Learned counsel for the OPs further referred the case law titled as “Radhey Shyam Prajapat & another Versus Santokba Durlabhji Memorial Hospital Cum Medical Research Institute & others, 2016 (2) CLT, Page No.72 wherein it has been held that :-

Consumer Protection Act, 1986, Section 2(1)(g)- Medical negligence – plea of complainant that ECG of patient was performed, but due to carelessness and negligence OP’s staff, ECG report of patient was interchanged with some other male patient about 35 years of age-On the basis of that changed report, OP wrongly treated the patient-Held – It should be kept in mind that, in the critical care/emergency units, the doctor’s paramount intention is to treat the patient, therefore, sometimes for each case, it could be difficult to change the name and patient’s ID in the ECG machine- The emergency ECG will be taken in presence of treatment consultant and he instantly reads and interprets the same- Thus, the complainant’s allegation will not sustain, it was a just technical allegation- There is a tendency of patients to blame the doctor if there is no cure- Complaint dismissed at admission time.    

 

            Besides this the learned counsel for the OP No.1 doctor, also referred medical literature explaining the disease “ASCITES” which is reproduced here as under:

 

Rapidly developing (acute) ascites can occur as a complication of trauma, perforated ulcer, appendicitis, or inflammation of the colon or other tube-shaped organ (diverrticulitis). This condition can also develop when intestinal fluids, bile, pancreatic juices, or bacteria invade or inflame the smooth, transparent membrane that lines the inside of the abdomen (peritoneum).

 

and lastly prayed for dismissal of the complaint qua the OP No.1 doctor.

13.                   Learned counsel for the OP No.2 and 3 also argued at length that there is no negligence on the part of the OPs doctor and requested for dismissal of the complaint qua the OP No.2 and 3 also.

14.                   After hearing both the parties at length and going through the documents placed on file, we are of the considered view that there is no deficiency in service or unfair trade practice on the part of the OPs doctor. The Hon’ble Supreme Court in case titled as “ Martin F.D. Souza Versus Mohd. Ishfaq, 2009(1) Supreme Court Cases Criminal 958 has held that Courts and Consumer Fora are not experts in medical science and therefore, they should not substitute their own views over that of specialists and in another case titled as “Kusum Sharma and Others Versus Batra Hospital and Medical Research Centre and Ors., AIR 2010 (SC), 1050” held that surgery performed for removal of abdominal tumor-Procedure adopted by doctor performing surgery supported by expert opinion- Negligence cannot be attributed to doctor- Medical professionals re not to be unnecessarily harassed or humiliated so that they can perform their duties without fear and apprehension. Malicious prosecution against medical professionals/hospital for extracting uncalled for compensation- Not maintainable.

15.                   In the case before hand, there is case of the complainant as mentioned in the complaint and counter written statement filed by the OPs doctor. Keeping in view, the nature of the disease and nature of operation performed, it was imperative for appointment of Medical Board to reach the right conclusion. Even during the pendency of present complaint, no application was moved by the complainant for appointment of Board for examination any expert in the matter. Complainant in the complaint has mentioned that he was examined by the doctors of the hospital of the OP No.3 and they gave their opinion that there was negligence on the part of the OP No.1. Whereas in the written statement filed by the OP No.3 the doctor of the OP No.3 hospital has flatly stated that there was no such negligence on the part of the OP Noi.1 doctor. It has been specifically mentioned in Para No.4 of the written statement of the OP No.3 that abdominal pain of the complaint was due to ASCITES which is medical terminology which means accumulation of fluid in the peritoneal cavety, which was due to raptured of intestine/appendix with perforation with toxemia, (appendix is part of large intestine) and the same was diagnosed by the OP No.1 in his Ultra sonography report (Annexure C-9/C-13). Meaning thereby that the version of the complainant that the doctor of the OP No.3 has given opinion that a wrong report has been given by the OP No.1 doctor is not tenable.  

16.                   In the circumstances noted above and after going through the facts of the case and case law referred above, we are of the considered view that there is no deficiency in service or medical negligence on the part of the OP No.1 doctor. The complainant has also failed to prove any negligence or deficiency in service on the part OP No.3 doctor. Hence, the present complaint of the complainant is hereby dismissed accordingly against all the OPs. No order as to cost. Copies of this order be sent to the parties concerned free of cost as per rules.  File be consigned to the record room after due compliance.

Announced in open Court:

Dated: 06.03.2017.

                                    (S.C.SHARMA )                    (ASHOK KUMAR GARG)

                                    MEMBER                              PRESIDENT, DCDRF Yamuna Nagar