Date of Filing: 16.07.2013. Date of Final Order: 25.03.2014
The case of the Complainant Sri Pradip Barman is that his son Shri Sagar Barman was consulted for abdominal pain, to Dr. Ratish Ch. Debnath MBBS (General Physician) who examined him and prescribed some medicines with advice to undergo USG Lower abdomen on 15.04.2013.( Annexure ‘A’ Prescription).
To said the patient was taken to “Spandan Medical Diagnostic Clinic” (Opposite Party No. 2) on 15.04.2013 and Dr. Anes Ahmed (Opposite Party No. 1) performed the USG of lower abdomen (Screening) on payment of Rs. 750/- to Opposite Party No. 2 which detected “Bilateral diffuse renal parenchymal disease”(Annexure ‘B’ USG Report).
On the basis of USG Report the complainant consulted Dr. Ratish Ch. Debnath who opined, from the said Report, a case of suffering from serious kidney disease & prescribed some medicines and advised for Urine Test. On 20.04.2013 it was done. The report appeared “Urine normal”. (Annexure-‘C’ Urine Report).
On 22.05.2013 the Complainant’s son further felt abdominal pain and his stomach began to bloat when he was admitted to “Poddar Seva Sadan Pvt. Ltd”., Cooch Behar under Dr. Shyamal Chatterjee M.S. who after examination suggested undergo USG Lower Abdomen (Screening). It was done on 22.05.2013 at “Devi Diagnostic Center” and Dr. Basudeb Halder , M.D. (Radio- Diagnosis) detected “Acute appendicitis with appendicular lump and abscess.” (Annexure ‘D’ USG Report dated 22.05.2013).
On 23.05.2013 Dr. S.Chatterjee M.S. performed Appendicitis G.A. and the patient was under treatment fill 28.05.2013 (Annexure ‘E’ Discharge Certificate of Poddar Seva Sadan Pvt. Ltd.).
The Complainant alleged against Dr. Anes Ahmed (Opposite Party No.1) for wrong diagnosis of Kidney disease by issuing wrong USG report for which both the complainant & his son (patient) suffered mental agony. The Complainant also suffered huge monitory loss (expenses) Rs. 50,000/- approximately. The Opposite Party No.1 did not take proper care and procedure in respect of doing USG and issued a wrong report which amounts to negligence of patient, unnecessary harassment due to lack of ordinary care and skill amounting to medical negligence, has been claimed.
The Complainant claimed himself, a “Consumer” of Opposite Party Nos. 1 and 2 and prayed for direction to Opposite Parties to pay (1) Rs.1,00,000/- towards deficiency in service and medical negligence. (2) Rs. 50,000/- towards Nursing Home Charges and misc. expenditure, (3) Rs. 5,000/- towards litigation cost, (4) Rs. 50,000/- for mental pain, agony and harassment besides, other relief(S).
He filed Xerox copies of prescription, reports, as Annexures- ‘A’ to ’E’.
On the basis of the Petition of Complainant DF Case No. 67/2013 has been registered on 16.07.2013. After hearing the Ld. Agent of the Complainant on admission point, it was admitted and 01.08.2013 was fixed for S/R & appearance.
On 01.08.2013 the Opposite Party No.1 Dr. Anes Ahmed entered appearance through his Ld. Advocate Mr. Dhurabajyoti Karmakar who prayed for time to file W/V. Despite receipt of Notice Opposite Party No.2 Spandan Medical Diagnostic Clinic did not appear and as such it was taken in Ex-Parte Hearing, fixing 16.08.2013 for W/V. On that date the Complainant appeared. The Ld. Adv. S.B. Ghosh, for the Opposite Party No.2 “Spandan Medical Diagnostic Clinic,” represented by it’s Proprietor Shri Kishore Kumar Guha, filed a petition to vacate the Ex-Parte Hearing Order and a separate petition for time to file W/V which was allowed on cost of Rs. 200/-and the case was restored. Thus, he entered his appearance through his Ld. Advocate Mr. Shyamalandu Bikash Ghosh on cost of Rs. 200/-, fixing 27.08.2013 for filing W/V by both the Opposite Parties.The prayer of the O.P.No.1 was allowed on cost of Rs.100/-.
On 27.08.2013 for both the Opposite Parties Written Versions have been filed, after service of copies to the Ld. Adv. for the complainant; but the W/V for the O.P. No.2 was filed without an affidavit. The petition, for O. P. No.2 to waive the imposed cost, was rejected and 12.09.2013 was fixed for payment of cost and Evidence on Affidavit by both sides.
On that date for the Complainant the Ld. Adv. appeared and filed Evidence on Affidavit of the Complainant and has prayed for fixing a date for Argument. For the Opposite Party No.1, his Ld. Adv. filed a petition for time to file Evidence on Affidavit. So also for the O. P. No.2, a petition was filed for time to file Evidence which were allowed fixing 23.09.2013 for Argument, with liberty to the two Opposite Parties to file Evidence on Affidavit, if any, in the meantime. On that date Ld. Agent of the Complainant appeared. For the Opposite Party No.1 Evidence on Affidavit was filed; but for the O. P. No.2 a prayer was filed for time to file Evidence and Argument which was allowed fixing 07.10.2013 for Argument and filing Evidence by the O.P. No.2, in the meantime. On that date the O. P. No.2 filed his Evidence on Affidavit and prayed for time to argue which was allowed fixing 08.11.2013 for Argument. On that date argument was adjourned for want of quorum and 05.12.2013 was fixed for Argument. On that date the parties contended to advance Argument-in-part, as the President was undergoing training at New Delhi. Hence, 26.12.2013 was fixed for Argument. On that date, neither the complainant nor his Ld. Adv. appeared though a Hazira was filed for him. None responded on repeated calls for the complainant. The Ld. Advocates of the O.Ps submitted for time for further Argument which was allowed fixing 09.01.2014 but the Ld. Advocates expressed their un-willingness to argue in absence of the President and hence, on 30.01.2014 Argument was heard in full and at that juncture the Ld. Agent of the Complainant filed some documents under a “Firisti”, together with some original documents for marking Exhibits and those were marked exhibit 1 to 6 and 14.02.2014 was fixed for Final Order; but it could not be completed in respect of typing and hence, even further 27.02.2014 and 13.03.2014 were fixed for delivery of Final Order could not be delivered. Thus, today i.e. 23.03.2014 the Final Order is being delivered.
On perusal of the evidence of the Complainant it appears that the Complainant has adduced his evidence almost copying his petition of complaint and at Para-7 of the evidence it has been categorically alleged and agitated that Opposite Party No.1 i.e. Dr. Anes Ahmed, MD, Ph.D. (Radio-Diagnosis) wrongly diagnosed the kidney disease of his son and issued a wrong report for which his son suffered mental pain and agony, the Complainant suffered huge monitory loss by treatment in Nursing Home and incurring after expenses amounting to not less than Rs. 50,000/-. Surprisingly no document as to expenses incurred in the said Nursing Home has been filed. The Opposite Party had not taken proper care and procedure at the time of conducting Ultrasound Lower Abdomen Screening which is a case of clear negligence as a Medical Practitioner and also deficiency in service, lack of ordinary care and skill amount to medical negligence has been claimed. The Opposite Party No.1 conducted the said USG at Spandan Medical Diagnostic Clinic i.e. of the Opposite Party No. 2 is equally liable, as he paid Rs.750/- for such USG, to the Opposite Party No.2 (but no such Receipt has been filed though admitted the receipt by the O.P.No.2).
It has been contended that Dr. Ratish Ch. Debnath diagnosed serious kidney disease of his son and prescribed medicines on going the said USG Report and also advised urine test which was done on 20-04-2013. The report of Urine speaks normal. His son was under treatment of Dr. Shyamal Chatterjee, MS, of Poddar Seva Sadan Pvt. Ltd. who suggested to undergo USG on Lower Abdomen (Screening) was done on 22-05-2013 at “Devi Diagnostic Centre” at Cooch Behar and Dr. Basudeb Haldar, MD, (Radio-Diagnosis) detected “Acute appendicitis lump & abscess” and diagnosed appendicular perforation to save life of the patient and Dr. Shyamal Chatterjee performed “Appendicitis GA” on 23-05-2013 at the said Nursing Home where he was admitted and were from 22-05-2013 to 28-05-2013.
Thus, the Complainant claimed the Report of the Opposite Party No. 1 wrong, deficiency in service, lack of ordinary care etc. on the part of the Opposite Party as a Medical Practitioner as discussed herein before.
On the other hand the Opposite Party No.1 in his W/V has denied all the allegations of the Complainant and admitted the statement of the Complainant in Para-3 and claimed himself an experienced Radiologist having specialized qualification MD, PhD (Radio-Diagnosis), performed the “Ultrasonography” of Lower Abdomen of Sagar Barman on 15-04-2013 with much skill and care and issued the screening report on the basis of opaque. He gave “Impression” as “Bilateral diffuse renal parenchymal disease” subject to the finding to correlate clinically and with other relevant investigations.
With reference to Para-5 Annexure-‘D’ (USG Report) dated 22-05-2013 of Dr. Basudeb Halder as “Acute appendicitis with appendicular lump and abscess” he explained “Acute” in medical science means sudden and immediate beginning of any ailment. He claimed that on 15-04-2013 such ailment of appendicitis was not in existence otherwise in the USG Report of Dr. Basudeb Halder dated 22-05-2013 the “Impression” would be old or chronic on suppurative appendicitis never it would be “Acute Appendicitis”. It might have developed with the span of 36 days after his report.
He denied that the patient was admitted in the Nursing Home “Poddar Seva Sadan” for ailment of kidney disease or that he suffered pain and agony and thereby incurred loss of not less than Rs. 50,000/-.
However, he stated admission of the patient at aforesaid Nursing Home under Dr. S. Chatterjee for treatment/operation of Acute appendicitis which grew long and long after about 36 days from the date of completion of the treatment of kidney disease/urinary infection by Dr. Ratish Ch. Debnath who completed his treatment. He claimed that there was no symptom of Acute Appendicitis during the tenure of his treatment.
He claimed that the science of Radiology is based on interpretation of shadows and computer processed images hence the finding/impression of USG Report are not confirmatory and the same is not required to be correlated with the clinical diagnosis, sign and symptoms for which it was specifically mentioned in the USG Report dated 15-04-2013, done by this Opposite Parties to correlate clinically and with other relevant investigations. Dr. Ratish Ch.Debnath never contradicted or disputed the USG Report issued by the Opposite Party.
He also stated herein that increased echogenicity of renal parenchymal in children with acute illness is a transient feature and does not necessarily indicate renal disease. In acute abdominal pain may a time there is temporary increase in renal echogenicity (which is one of the most important criteria to diagnose kidney disease) without any renal parenchymal disease. Radiologist could not overlook the renal echogenicity factor. This would involve the risk of missing a diagnosis if renal disease was actually present. He further has claimed that Radiological diagnosis in question is not at all a case of negligence or lack of ordinary care and skill by the Radiologist, rather it is an earnest attempt on his part not to miss a diagnosis which could have been harmful for the patient.
The written version on the part of the Opposite Party No. 2 i.e. Spandan Medical Diagnostic Clinic represented by its proprietor Sri Kishore Kumar Guha claimed his institute as a reputed diagnostic clinic and the tests are done here by qualified doctors and technicians having skill and experience, against payment of proper fees and charges with adequate care and responsibility and he has admitted the USG done on 15-04-2013 by the Dr. Anes Ahmed, MD, PhD attached to his Nursing Home. The Opposite Party No. 2 claimed that he has no medical knowledge and hence he has no liability as to medical negligence or deficiency in service whatsoever as alleged by the Complainant and as to such USG and/or Test conducted by the doctors attached to his Nursing Home and as to negligence/deficiency in service by the doctors, he made no comment but claimed that he came to know the complaint on getting Notice from the Forum and from Dr. Anes Ahmed. Hence, he is not liable in any way for alleged negligence/deficiency in service.
Now, on perusal of the evidence of the complainant it speaks almost replica of his complaint in slight change of format and claimed harassment due to lack of ordinary care and skill amounting to medical negligence of the Opposite Parties and claimed compensation for such medical negligence and deficiency in service etc.
The evidence of the Opposite Party No.1 Dr. Anes Ahmed is also almost alike his written version and with claim to dismiss the complaint with cost.
The evidence, of the Opposite Party No.2 Mr. Krishna Kumar Guha i.e.the Proprietor of Spandan Medical Diagnostic Clinic, is almost alike his Written Version with slight change in language; but contents appears identical. He claimed that the Complainant is not entitled to any relief from him i.e. Opposite Party No.2.
We have gone through the literature Page-1 to 5 down load copy in respect of Wise GEEK on renal parenchymal disease (Page-1 & 2 only) and Xerox copy of 1986-2006 Consumer 11006 (NS) N.C.D.R.C., New Delhi the case of Kashinath Gupta –Vs- Dr. Amitabh Awasthi and another Revision Petition No. 24 of 2003 decided on 14-10-2004 in respect of Section 2(l)(g) i.e. deficiency in service, medical negligence, wrong X-ray Report which culminated unnecessary shock and mental agony by being told by the doctor to the Complainant that he has been suffering from T.B. and other matters of treatment not be filing to the instant case.
And a sheet page-242 & 243 in respect of law relating to medical negligence Blood Banks and Pathological Laboratories Ch 16.2.5 relates to wrong Ultra-sound Report : “where Ultra-sound test was performed and was declared to be having AIDs wrongly which the blood report showed negative for AIDs, it was held deficiency in service by the person in charge of the laboratory” as has been highlighted to implicate the Opposite Party No. 2 i.e. the Spandan (Nursing Home) in the instant case.
On the other hand for the Opposite Party No.1 has filed copy of literature on Acute Appendicitis which speaks of various matters as to Resources, Presentation, Scoring system, Differential diagnosis, Investigations, Management, Prognosis, Further Reading & References, Further, intimation and professional reference etc. relates to various matters but in respect of the authenticity of the USG Report dated 15-04-2013 and/or 25-05-2013, we do not find any specific substantive material therein.
We also heard the Ld. Advocates for the Complainant and Opposite Party Nos. 1 & 2 in respect of the Reports of the concerned doctors besides arguments put forwarded by them. In spite of the mandatory provisions as to filing the written argument by the Ld. Counsels, conducting the case, none of them filed such Written Argument.
The Ld. Advocate for the Complainant has banked upon the USG Report dated 15-04-2013 of Spandan Medical Diagnostic Clinic claiming negligence and deficiency in service on the part of the Opposite Party No. 1 Dr. Anes Ahmed for examination and report in respect of the USG by which the Complainant had been mislead. In view of which the Complainant has got relevant investigations on 16-04-2013 at Nath Clinical Laboratory vide tests of Urea, Creatinine besides, urine (both chemical/microscopical examination of urine) and also further got USG of lower abdomen (screening) on 22-05-2013 at EVI Diagnostic Centre, Cooch Behar suggesting acute appendicitis. This USG report has been claimed by the Complainant as genuine and the USG report of the Opposite Party No. 1 Dr. Ahmed has been claimed to be wrong.
We find in respect of USG Reports of the patient i.e. Master Sagar Barman dated 15-04-2013 and dated 22-05-2013, by two different Radiologists and Radiologist-cum-Sonologist i.e. the Dr. Anes Ahmed and Dr. Basudeb Haldar respectively, in report as to Impression we find Bilateral diffuse renal parenchymal disesse and Acute appendicitis with appendicular lump & abses.
The explanation given by the Opposite Party No.1 at Para-11 of his Evidence the term Acute in Medical Science means explained as sudden and immediate beginning of any ailment which is not acceptable even by common sense and the word “Acute” literally means “Extreme” and it cannot be immediate beginning rather later stage which he himself claimed in the same Para quoting the USG of Dr. Haldar that “the ailment of acute appendicitis developed not more than one or two days back from the date of detection” appears self-contradictory. He has also claimed that on 15-04-2013 when he performed the USG of patient such ailment of appendicitis was not in existence is also contradictory to the report of Dr. Haldar dated 22-05-2013.
It is also fact that neither the Complainant nor the O.Ps has preferred any Third Party as distinguished expert/experts in the field of such reports to postmortem and find out the authenticity and genuineness and/or otherwise of the findings in the two reports, as per record.
The Ld. Advocate for the Opposite Party No.1 has expressed that without report of Third Party Doctor/ Board of Expert/ Experts, it cannot be accepted that the Report of the Opposite Party No.1 Dr. Anes Ahmed is wrong and the Report of Dr. Basudeb Haldar is right and hence the Complainant’s claim is baseless and not substantiated by material evidence and hence the complainant is not entitled to get any compensation/relief from the Opposite Party No.1.
As it was not assailed specifically in the W/V and/or in his Evidence and or submitted any prayer before this Forum for such Expert Report, we are not inclined to accept such proposition at this stage of Argument as per settled Principle of Law.
We cannot reasonably accept the evidence adduced at Para-12 that the treatment and staying at the Nursing Home took place due to ailment of acute appendicitis which were not in existence when he performed USG on 15-04-2013, long more than 36 days from the date of detection of the above acute appendicitis which was detected by the USG dated 22-05-2013 because appendis gets acute by passage of time and calls for operation and it cannot be acute at the initial stage of appendicitis detection in human body in normal course, even from normal prudence.
Hence, considering all aspects, we come to the conclusion, reasonably presuming and based on the materials on record, that the Opposite Party No.1 Dr. Anes Ahmed had negligence in conducting the USG of the patient Master Sagar Barman, Aged 12/13 years and thereby rendered deficiency in service on his part.
In respect of the Opposite Party No.2 i.e.“Spandan Diagnostic Clinic”it appeared to us that no where the Complainant alleged and/or even whispered that there was deficiency in providing the adequate and perfect instruments/equipments in the said Spandan Diagnostic Clinic on the part of its Proprietor. On the other hand the Radiologist who performed the USG in the said Clinic has even whispered that defective equipments were provided by the Opposite Party No.2. Further, it has also not been brought to Notice by either of the parties in contest i.e. the complainant and/or the O.P.No.1 that the Proprietor Mr. Kishore Kumar Guha of Spandan Diagnostic Clinic provided those equipments of different tests in the Clinic and/or those equipments were provided by the doctors, conducting different clinical tests; but reasonably and finally it may be presumed that Dr. Anes Ahmed, MD, PhD (Radio-Diagnosis) is a Consultant Radiologist of Spandan Diagnostic Clinic, Cooch Behar which appears from the letter head pad of the said clinic and hence,. he cannot evade his liability as he has acted as and on behalf of the O.P.No.2 who has got onus liability, cannot be ignored even if it has been denied.
Further more, the contention at the bottom of the Report dated 15-04-2013 reflects “In case of any discrepancy due to mechanic/typing error, please report immediately for rectification.” Similarly, such contention at the bottom of the report dated 22-05-2013 reflects “This is a professional report based on imaging findings only and should always be correlated clinically and with other relevant investigations. This report is not for medico-legal purpose. In case of any discrepancy due to mechanic error or typing error kindly get it rectified immediately”. Thus, it calls for consideration and giving weightage of such Reports of such diagnostic Clinics. Such evasive contention is nothing, but misleading the patients who are normally not experts in detection of such “discrepancy” “mechanic error” & “typing error” etc. and generally are not the experts. Whereas, who are conducting such tests might be experts in the field and reasonably liable for their acts/omissions. Do those fall within the ambit of “errors and omissions” exempted where the treatments of patients are done based on such Reports involving life and death of the patient.
Points for Consideration
- Whether, the “Complainant” is a “Consumer” and the petition is a Complaint ?
- Whether, this Forum has financial/territorial jurisdiction to entertain the petition of complaint i.e. disputes in the petition of complaint and try the same?
- Whether, the Complainant succeeded in proving the negligence and/or deficiency service of the Opposite Party Nos.1 & 2 jointly and/or severally by evidence ?
- Whether, the Complainant is entitled to get compensation(s)/Relief(s) as prayed for in this case, if so, to what existent if not why not ?
DECISITION WITH REASONS
From the discussions herein before, evidence on record, argument put forwarded and in terms of C.P. Act, 1986, Rules & Regulations there under, we decide the case as follows:-
- The Petitioner/Complainant is a Consumer of the Opposite Party Nos.1 & 2 i.e. Dr. Anes Ahmed who had undertaken the USG and the Clinic, on payment of Rs. 750/- for the USG of the son of the Complainant and thus, the petition is a “complaint’ and his consumer dispute led him to became a “Complainant”. Not disputed.
- The jurisdiction of this Forum has not been disputed by either of the Opposite Parties and hence admitted to try the case.
- The Complainant has proved his complaint to the extent of negligence and deficiency in service on the part of the Opposite Party No. 1 i.e. Dr. Anes Ahmed and the Opposite Party No. 2 is involved as onus liability both jointly and/or severally, for their errors/omissions in detection/diagnosis of the actual disease of the patient and cannot evade their liability by such disclaiming in fact of the reports.
- The Complainant is entitled to get relief(s) to the extent of negligence and deficiency in service and not in respect of medical expenses in the Nursing home though for such incorrect Report he had to get the USG done subsequently, reasonably that would have done in the Nursing Home as a matter of good practice of reputed hospitals/nursing homes alike CMC, Velore/Wood Land, Belview, Tata Centre, ILS etc. in Kolkata and might have to bear those expenses. Hence, we may award Rs.50,000/-to the Complainant payable by the Opposite Party Nos.1&2 jointly and/or severally as compensation together with reasonable litigation cost of Rs. 4,000/-.
- No other relief the Complainant is entitled to in respect of the alleged damage caused by the Opposite Party No.1&2 and/or in respect of mental pain, agony, sufferings of the patient and the complainant and member of his family suffered, as medical treatment is not a matter of pleasure of any one. Medical treatment calls for expense and that cannot be realized from the doctors by such allegations against them. Inevitable expenses are supposed to be borne by the patient and/or patient party. Then, even it was detected by the Opposite Party No. 1 that it was appendicitis and not “Bilateral diffuse renal parenchymal disease” operation and necessary cost was in evitable. So, the Complainant has not incurred additional medical expense. There appears no expenditure voucher on record so neither the extent of expenditure nor the additional expenditure born could be ascertained in respect of acute stage of appendicitis of the patient which led to immediate operation.
Here, we cannot reasonably accept the shifting of liability on the shoulder of the patient who attends such test at the Diagnostic Clinics in respect of deficiency, negligence on the part of the doctor(s) and/or the proprietor(s) of the Diagnostic Clinic and hence held the Opposite Party No. 2 is also liable for negligence and/or deficiency in service. It cannot be treated alike “shares/debentures” in the market.
ORDER
Therefore, it is ordered that the complaint be and the same succeeds in part. The O.P. No.1 i.e. Dr. Anes Ahmed and the O.P.No.2 i.e. Shri Kishore Kumar Guha, the Proprietor of the Spandan Medical Diagnostic Centre are jointly and/or severally held liable for their negligence and/or deficiency in service.
Accordingly, both the Opposite Parties are directed to Pay (1) Rs.4,000/-towards litigation cost and Rs.50,000/-towards compensation to the Complainant Shri Pradip Barman i.e. total an amount of Rs.54,000/-within 45days from the date of this order, jointly and/or severally.
In the event of failure to comply with the order the Opposite Party shall Pay cost @ Rs.50/- for each day’s delay, by depositing such accumulated amount, if any, in the State Consumer Welfare Fund, West Bengal for such delay, if caused, either jointly or severally.
Let plain copy of this Final Order be made ready and be supplied free of cost to the concerned party/Ld. Advocate on record by hand/be sent by registered post with A/D forthwith the concerned party for information and necessary action.
Dictated and corrected by me.
President President
District Consumer Disputes District Consumer Disputes
Redressal Forum, Cooch Behar Redressal Forum, Cooch Behar
Member Member
District Consumer Disputes District Consumer Disputes
Redressal Forum, Cooch Behar. Redressal Forum, Cooch Behar
