Before the District Consumer Disputes Redressal Forum, Rohtak.
Complaint No. : 228.
Instituted on : 25.06.2014.
Decided on : 31.07.2017.
Rajesh Kumar s/o Shri Rulia Ram(now deceased) through his L.R.s.:-
- Smt. Nithlesh wd/o Rajesh Kumar
- Subham minor son of Rajesh Kumar.
- Ritika minor daughter of Rajesh Kumar.
- Piyush minor son of Rajesh Kumar.
All minors through their mother as natural guardian and next friend, residents of House No.322/3, Old Subji Mandi, Babra Mohalla, Rohtak.
………..Complainants.
Vs.
- Dr. Arun K Narula, Chief Consultant Radiologist and Sonologist, Narula Ultrasound Centre, Civil Road, Rohtak.
- National Insurance Company Ltd., Divisional Office-2, Narain Shopping Complex, Civil Road, Rohtak through its Divisional Manager.
……….Opposite parties.
COMPLAINT U/S 12 OF CONSUMER PROTECTION ACT,1986.
BEFORE: SH.JOGINDER KUMAR JAKHAR, PRESIDENT.
MS. KOMAL KHANNA, MEMBER.
SH.VED PAL, MEMBER.
Present: Sh.Roop Chand, A.R.for complainant.
Sh.Harish Sikri, Advocate for opposite party No.1.
Sh.Anil Sharma, Advocate for opposite party No.2.
ORDER
SH. JOGINDER KUMAR JAKHAR, PRESIDENT :
1. The present complaint has been filed by the complainant with the averments that the complainant visited Dahiya Medical Centre Rohtak on 16.12.2013 for the treatment of pain in the abdomen. On the same day Dr. Dahiya advised the complainant for USG and ultrasound test. It is averred that as per the advise of Dr. S.S.Dahiya, complaliannt approached to Narula Ultrasound centre, Civil Road, Rohtak where opposite party no.1 after charging the necessary fee conducted the ultrasound of the abdomen of the complainant and give his advise on dated 07.01.2014 that Left Kidney shows a calculus of size 3.7 mm in middle calyx without hydronephrosis. It is averred that after seeing the test result, advised some medicine to the complainant and complainant consumed the same. It is averred that after consumption of the same, the pain in the stomach of the complainant highly raised and thereafter the complainant approached to doctor on duty at PGIMS, Rohtak. Where he was again suggested for USG test. Then the complainant approached to City Diagnostic Centre and got conducted the USG for whole abdomen on dated 09.05.2014 and found that soft tissue lesion of size 13*13 mm seen along right postero lateral wall of UB? Growth Adv. Cystoscopy correlation. It is averred that doctor also advised for clinical correlation & further evaluation with CECT abdomen and the same was conducted at Global Diagnostics on dated 12.05.2014 and found that posterolateral urinary bladder wall and doctors on duty of PGIMS, Rohtak admitted the complainant for operation of bladder tumor on dated 21.05.2014 and discharge on dated 24.05.2014 with advise of medicines and biopsy report. It is averred that the department of pathology PGIMS, Rohtak conducted a test of bladder tumor chips and gave his report on 26.05.2014 and during the treatment the doctors of PGIMS, Rohtak disclosed to the complainant in the presence of his family members that the high grade tumor in bladder(18.0 * 16.0 cm. in size) origin and worst condition occurred due to negligence in medical test conducted by Dr. Arun K. Narula i.e. opposite party no.1. It is averred that due to carelessness, negligent and derelict treatment, advise and medical test provided and conducted by the opposite parties, the complainant suffered from unwanted operation of bladder tumor, spent a huge amount for unnecessary treatment and faced weakness in body. It is averred that act of opposite party is illegal and amounts to deficiency in service. As such it is prayed that opposite parties may kindly be directed to pay an amount of Rs.250000/- spent by the complainant on his treatment due to negligence of opposite party and also to pay a compensation and litigation expenses to the complainant.
2. On notice opposite parties appeared and filed their separate written reply. Opposite party no.1 in its reply has submitted that on 07.01.2014 the patient Rajesh was sent to Narula ultrasound Centre for ultrasound of whole abdomen with the diagnosis of NB Allergy + SAPD + UTI by Dr. S.S.Dahiya. At that time there was no suspicion of any Urinary Bladder Cancer by Clinician which is evident from the prescription slip. It is admitted fact that left kidney showed a calculus of size 3.7 mm in middle calyx without hydronephrosis. It is pertinent to mention here that on that day i.e. 7.1.2014 the urinary bladder was normal in echopattern. It is denied that the complainant brought the test result prepared or that the test result prepared and given by Dr. Arun K. Narula before Dr. S.S.dahiya as alleged. It is denied that after consumption of the prescribed medicines, the pain in the abdomen of the patient highly raised and the patient approached to doctor on duty at PGIMS, Rohtak as alleged or that the doctor on duty at PGIMS, Rohtak suggested for USG test as alleged. It is averred that the report dated 12.05.2014 is false and bogus document. As evident from Histopathological report after operation dated 26.05.2014, the tumor was of high grade means very fast growing tumor. It means that there is a big gap of 4 months 2 days from 07.01.2014 to 09.05.2014 between two ultrasound reports. So it is very much clear that tumor has developed after the first ultrasound report(as the urinary bladder was normal at that time) and because of high grade-fast growing tumor, it has come in the second ultrasound report of 09.05.2014 as very small size doubtful growth of size 13 mm by 13 mm which was later on confirmed.
It is averred that the opposite party had given the actual report as he seen in the ultrasound and the disease actually occurred/developed after the 1st ultrasound. So, there was no fault in the test on the part of Dr. Arun Narula. It is denied that there is any negligence on the part of answering opposite party. All the other contents of complaint were stated to be wrong and denied. Opposite party prayed for dismissal of complaint with cots.
3. Opposite party no.2 in its reply has submitted that complainant is not a consumer and has no cause of action to file the present complaint against the answering opposite party. It is averred that the answering opposite party is not liable to pay any claimed amount if any, as the insured has violated the terms and conditions of the insurance policy because according to the policy condition the insured shall give written notice to the company of any claim made against him but the insured Dr. Arun Narula has not intimated the company in this regard and has not assist the company in defending the case which is mandatory for him but he failed, so the answering opposite party is not liable. On merits it is submitted that as per documents on 07.01.2014 the required test of patient Rajesh was conducted by Dr. Arun Narula as prescribed by Dr. SS.Dahiya and given the report according to his full ability and as per the prescribed medical norms and medical prudence there was not any suspicion of any Urinary bladder cancer by clinician which is evident from the prescription slip. It is averred that there is no negligence on the part of opposite party no.1 in giving the rest report and the same was given as per the factual position of the urinary bladder. All the other contents of the complaint were stated to be wrong and denied. Opposite party prayed for dismissal of complaint with costs.
4. Both the parties led evidence in support of their case.
5. Ld. counsel for the complainant in his evidence has tendered affidavit Ex.PW1/A, Ex.PW2/A, documents Ex.P1 to Ex.P40 and has closed his evidence. On the other hand, ld. counsel for the opposite party No.1 in his evidence has tendered affidavit Ex.RW1/A, document Ex.R1 and closed his evidence. Ld. Counsel for opposite party no. 2 has tendered affidavit Ex.RW2/A, documents E.xR2/1 to Ex.R2/2 and has closed his evidence.
6. We have heard learned counsel for the parties and have gone through material aspects of the case very carefully.
7. In the present case it is not disputed that as per record placed on file, Dr. S.S.Dahiya advised USG for whole abdomen and as such the complainant got conducted the same from opposite party No.1. As per report Ex.P3 dated 07.01.2014 issued by opposite party no.1, “Left kidney shows a calculus of size 3.7 mm in middle calyx without hydronephorosis”. The contention of ld. Counsel for the complainant is that due to wrong test report given by the opposite party no.1, the complainant had suffered from high grade tumor in bladder origin and the condition of the complainant become worst and he had to spent a huge amount for unnecessary treatment. On the other hand contention of ld. Counsel for the opposite party no.1 is that at the time of test, there was not suspicion of any urinary bladder cancer by clinician and it is admitted that left kidney showed a calculus in middle calyx without hydronephrosis and on that day ie. 7.1.2014, the urinary bladder was normal in echopattern. It is further contended that there is no deficiency in service on the part of opposite parties and dismissal of complainant has been sought.
8. After going through the file and hearing the parties it is observed that report was given by opposite party no.1 on 07.01.2014 whereas the second USG was done on 09.05.2014 i.e. after 4 months of 1st ultrasound. It is also observed that at the time of first ultrasound conducted by opposite party no.1, the urinary bladder was normal. Hence there is possibility of developing the alleged disease after 1st ultrasound got done by the opposite party. On the other hand complainant has not placed on record any expert opinion to prove the allegations leveled against the opposite party no.1. Hence from the documents placed on record it is observed that mere allegations cannot be relied upon unless they are corroborated with evidential value to conclude that there is deficiency in service or negligence on the part of the O.Ps. In this regard reliance has been placed upon the law cited in I(2017)CPJ 619(NC) titled as Miss Heart Parmar Vs. Venilal G.Panchal & Ors., whereby Hon’ble National Commission, New Delhi has held that: “Complainant has not examined any expert to prove that doctors have not followed standard of practice-Only because patient was died or suffered any mishap, it cannot be taken as medical negligence of treating doctor-Patient was treated under ICU care with regular monitoring of vital parameters-Negligence not proved”, as per II(2016)CPJ 48(Punj.) titled as Resham Singh Sandhu Vs. Ramesh Singh & Anr. and NIC Co. Hon’ble Punjab State Commission, Chandigarh has held that: “Negligence cannot be attributed to doctor so long as he performed his duties with reasonable skill and competence-Findings given by District Forum are not based on proper appreciation of pleadings and evidence on record-Impugned order set aside”, as per 1(2017) CPJ 187(Ker.) titled as Babu Pulickal(Dr.) & Anr.Vs. Robin & Ors., Hon’ble Kerala State Commission, Thiruvananthapuram has held that: “Medical negligence-Wrong diagnosis and improper treatment alleged-Death of patient-Alleged deficiency in service-District Forum allowed complaint-Hence appeal-Appellants diagnosed illness of patient correctly and started treatments-There is nothing to indicate that appropriate drugs were not administered in appropriate dose at appropriate time –Treatment was given as per accepted protocol-Negligence not proved”, as per AIR 2010 Supreme Court 1050 titled as Kusum Sharma and Ors. Vs. Batra Hospital and Medical research Centre and Ors., Hon’ble Supreme Court of India has held that: “Medical Negligence- 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 are not to be unnecessarily harassed or humiliated so that they can perform their duties without fear and apprehension-Malicious prosecution against medical professor/hospitals for extracting uncalled for compensation-Not maintainable”, as per 2005(2)CLT 156 titled Heirs of the deceased Narasimha Reddy & others Vs. M.D. Rohini Hospital and another, Hon’ble National Commission has held that: “Medical negligence-A doctor is not guilty of negligence if he has acted in accordance with the practice accepted as proper by a responsible body of medical men skilled in that particular art-It is for the expert doctor to decide what type of treatment should be given and to decide whether the operation should be performed or not-The duty of the doctor or a hospital is expected to take reasonable care in administration of the treatment-They cannot be condemned in case of misadventure, as per 2009(3)CLT 526 titled Nitish Sethi & Ors. Vs. Naresh Trehan & Ors., Hon’ble National Commission has held that: “Left Bundle Branch Block(LBBB)-Informed consent obtained-Death of patient aged 37 years-OPs have rendered treatment based on known medical text procedures-The allegations made in the complaint against surgeon not substantiated by any evidence-Mere allegations, apprehension, conjectures and surmises cannot be relied upon unless they are corroborated with evidential value to conclude that there is deficiency in service or negligence on the part of the Ops-There is no deficiency in service/negligence on the part of the Ops.”.
9. In view of the aforesaid law are fully applicable on the facts and circumstances of the case, it is observed that complainant has failed to prove deficiency in service on the part of opposite parties. As such present complaint stands dismissed with no order as to costs.
10. Copy of this order be supplied to both the parties free of costs. File be consigned to the record room after due compliance.
Announced in open court:
31.07.2017.
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Joginder Kumar Jakhar, President
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Komal Khanna, Member.
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Ved Pal, Member
