Hon'ble Mr. Haradhan Mukhopadhyay, President.
Alleged wrong medicinal diagnosis by the O.P. No.1 Doctor is the bone of contention to file the present case by the Complainant against the OP. The basic fact as stated by the Complainant in the complaint is reproduced in brief to the effect that the Complainant Sri Tanmay Roy felt some abdominal pain for which the O.P. No.1 medically treated him on 16.02.21 and advised for USG. After holding USG on that date it was found that “Appendix is grossly thickened”. The Complainant immediately consulted with Dr. Bikash Mishra(MS) on 16.02.21 and he stated that it is urgent matter of Appendix operation. As per Doctor consultation the Complainant further done USG on 22.02.21 at Cooch Behar Scan Centre and it was found that there was no case of Appendicitis. Subsequently, the Complainant went to Dr. A.K. Bala. Having perused all the reports he was confused about the report and prescribe some medicines and further advice for USG. After conducting USG at Global Diagnostic on 21.03.21 it was found that there was no Appendicitis matter. For clarification the Complainant again went to O.P. No.1 for further USG on 24.04.21 wherein the OP stated that there is no case of Appendicitis. The Complainant again done USG in the evening to the OP. At the time the OP stated in his report that “Appendicitis is thickened (6.5 mm)”. Then the Complainant went to his Doctor who stated that report of OP is totally wrong. Within 4/5 hours gap the diagnosis could not change as per medical ethics. The Complainant then contacted with the OP who admitted that the report dated 24.04.21 is totally wrong and requested the Complainant to return back the cost of USG. Due to such wrong report of OP the Complainant suffered mental pain and agony and also for continuous use of medicine. The OP received a sum of Rs.1200/- for USG. The cause of action arose on 16.02.21 and on other dates. The Complainant prayed for an award for refund of Rs.2,000/-, Rs.7,000/- for other USG charges and Rs.2 Lakhs for deficiency in service and litigation cost of Rs.20,000/- .
The O.Ps Dr. Basudeb halder and proprietor of Devi Diagnostic Centre contested the case by filing written version wherein they denied each and every allegations. The positive defence case of the O.Ps in a few words is that the O.P. No.1 Dr. Basudeb Halder is a consultant Radiologist and Sonologist having Master Degree in the same field with wide experience. It is fact that the OP conducted USG in the right inferior part of the abdomen on 16.02.21 and thereafter issued USG report on the basis of what he found during examination i.e. right Iliac Fossa region that Appendix is grossly thickened (10.0 mm in diameter), hypo echoic and edematous with mild probe tenderness at right Iliac fossa with impression “Resolving acute appendicitis” with further suggestion correlating the result clinically with other relevant investigation. The Complainant was medically treated on different dates by Dr. Bikash Mishra, Dr. P. Sanyal and other doctors. Dr. Mishra advised for a USG about a week and prescribed some medicine for speedy resolving his Appendicitis. The Complainant also done USG on 22.02.21 at Cooch Behar Scan Centre but in that report nothing is told about right Iliac Fossa region. In absence of any reporting with regard to right Iliac Fossa region in report dated 22.02.21 by Dr. P. Sanyal there is no ground to suggest that the report of OP is incorrect so O.Ps do not have any liability. Dr. A.K. Bala is a General physician he also prescribed some medicine and further test. This time also Dr. Mihir Pal of Global Diagnostics, Cooch Behar was mum in his report about right Iliac Fossa region without any comment on that aspect. Therefore any omission by Dr. Mihir Pal in his report on that aspect does not mean that the report of OP is wrong. Again Dr. A.K. Bala on 24.04.21 during treatment of the Complainant and OP conducted the USG on that date and issued report of what he found i.e. “Moderate fatty infiltration in liver & Pancreas”. He also advised to correlating the result clinically of other relevant investigations. The Complainant without an ill motive investigated with the OP on the same date with another prescription of Dr. Bikesh Mishra with some different problem of USG and lower abdomen. Wherein the OP after minute observation through the process of USG found mild probe tenderness of right Iliac Fossa wherein Appendix is thickened 6.5mm. It is pertinent to mention that the diameter of the human is 6.00 mm approx and more than 6.00 mm is considered as thickened. Since 16.02.21 to 24.04.21 the Complainant was under constant treatment and medication of different doctors, so the inflamed appendix might have cured or resolved from 10 mm (16.02.21) to 6.5 mm (24.04.21). Accordingly, there is no wrong in the report of the OP. Patient was under medication. The OP denied that he ever admitted or accepted any fault or offered to return the cost of USG to the Complainant of any point of time. There was no negligence on the part of the OP in performing the USG. The O.Ps therefore claimed that the case is liable to be dismissed with cost.
The conflicting facts and allegation vis-a-vis the denial of each and every allegations and positive case of the parties led this Commission to ascertain the following points for proper adjudication of the case.
Points for determination
- Whether the present case is maintainable in its present form and prayer?
- Whether the Complainant is entitled to get the relief as prayed for?
- To what other relief if any the Complainant is entitled?
Decision with reasons
Point No.1.
The O.Ps challenged the status of the Complainant as a consumer. So at the very outset it has to be decided as to whether the Complainant is a consumer or not.
The Complainant categorically alleged that he paid Rs.1200/- to the OP for conducting USG and also incurred some cost on different dates. But the main point of consideration is that the OP did not deny about the payment of Rs.1200/- towards USG in Para-12 of the complaint. The OP also gave some services in exchange of money against the said payment. Thus the transaction between the parties as well as the relation in view of the said transaction brought the parties within the purview of the C.P. Act and accordingly the Complainant is a consumer under the C.P. Act.
Point No.1 is accordingly decided in favour of the Complainant.
Point Nos. 3 & 4.
Both the two points have very close nexus with each other and as such these are taken up together for convenience and brevity of discussion.
It is the admitted fact that the O.Ps done USG of whole abdomen of the Complainant on 22.02.21 at Cooch Behar Scan Centre. The Complainant proved some documents in order to substantiate the case.
After perusing the documentary evidence it transpires that as per Annexure-A the Complainant done USG with the O.P. No.2 Devi Diagnostic Centre wherein the impression under the said report as stated as Moderate fatty infiltration in liver, Resolving acute Appendicitis and right Iliac Fossa as Appendix is grossly thickened.
It is fact that the Complainant having been panic went to Dr. Bikash Mishra who also prescribed some medicine after going through the said report with remark of acute Appendicitis with wall of 10.0 mm. At the lower portion of his prescription Dr. Mishra advised for review of USG of lower abdomen.
It is the defence plea that Dr. Bikash Mishra advised some medicine. By using the said medicine the Appendicitis might be reduced at a subsequent stage. So their report is not wrong.
Let us see what is the result of USG at subsequent stage.
The Complainant further stated that he as per advice of the Doctor again done USG on 22.02.21 at Cooch Behar Scan Centre.
The said report discloses that the patient himself done USG and not referred by any Doctor. Impression is Mild hepatomegaly with grade-I fatty infiltration, Mild splenomegaly. Advice clinical correlations. It is important to consider that the Ld. Defence Counsel argued that in the subsequent reports of USG no here the important aspect of medical observation namely right Iliac Fossa was not investigated during USG by the other Diagnostic Centre or by any other Doctor then the OP.
The argument is very much important and acceptable in as much as it is found that in all other USG reports on 22.02.21 with Cooch Behar Scan Centre and Global Diagnostic on 21.03.21 the said aspect was not investigated. So also the other Doctors namely Dr. Bikash Mishra or Dr. A.K. Bala on 21.03.21 did not comment regarding right Iliac Fossa.
Regard being also had to the observation of USG report under different Laboratory wherein the other aspects of the whole abdomen and its result are by and large same as the investigation done by the OP Laboratory in regard to liver, Portal Vein, Gall Bladder, Pancreas, Spleen, Kidneys, Urinary Bladder, Prostate etc. It is also important to consider that in each report there is an impression about Moderate fatty change in liver. Thus other than the OP Laboratory the other Laboratories did not consider the said right Iliac Fossa and as such the result which was found during investigation regarding Appendicitis on 16.02.21 remained silent in other report. Therefore the argument of the Ld. Defence Counsel as well as the defence case regarding not having any fault on their part has a very strong basis.
The Ld. Advocate for the Complainant argued that even in last occasion the Complainant done USG with the OP but how could Appendicitis be detected within a gap of few hours of test.
The OP took the plea that with an ill motive just to harass the OP the Complainant again came to the OP on the same date in the afternoon with another prescription of Dr. Bikash Mishra with some different problem of USG lower abdomen but the OP was unaware of the said ill motive and as such after minute observation through the process of such USG found mild probe tenderness of right Iliac Fossa Appendicitis were thickened 6.5 mm in diameter and he issued report to that respect.
This part of defence plea in regard to the last part of the USG report is apparently cannot be disbelieved in as much as the Complainant did not cross-examine the OP in this regard.
Ld. Advocate for the OP also argued that due to use of medicine the Appendicitis might be reduced or disappeared. Accordingly said argument has reasonable force in as much as it is found from the different documents that the patient/ Complainant consumed medicine for a considerable period of time. Different USG at different Laboratory were done with reasonable time gap. Therefore, the chance of reduction of the Appendicitis or disappearance thereof might be natural phenomenon. So there is no sufficient material in the case record to find out any malice or malafide intention of the OP Dr. Basudeb Halder or the O.P. No.2 his laboratory.
It is also the defence plea as well as the argument of Ld. Advocate for the Ld. Defence Counsel that the Complainant was medically treated by different doctors at different time. So without making them the proper adjudication of the case is not possible.
The argument is acceptable to some extent but in absence of those Doctor the case can be properly adjudicated on the basis of the documents available with the case record as well as the evidence led by the parties. Regard being also had to the aspect that the other Doctors who considered the report of the OP did not pass any remark or any advice that the impression of the USG report is absurd or not correct or that due to use of medicines for treatment of Appendicitis the condition of the Complainant/ Patient worsened or became critical.
It is also considered that wherein the size of the Appendix as per report dated 16.02.21 was 10.0 mm the size of the Appendix as per report on 24.04.21 reduced to 6.5 mm with mild probe tenderness of right iliac fossa.
The OP took this specific defence plea about the medical aspect that as per medical literature the diameter of human appendics is 6.00 mm approx and more than 6.00 mm is considered as thickened or inflamed Appendicitis the diameter 0.5 mm is some time negligible.
That apart the medical literature regarding the physical organ of human body as depicted by defence side could not be contradicted by the Complainant through any medical expert opinion or by cross-examining the OP.
Ld. Defence Counsel further drew the attention of the Commission that under the heading of the impression in the report of USG dated 16.02.21(Annexure-A) it is mentioned inter alia that “Resolving acute Appendicitis” it means that it is being reduced or becoming normal slowly.
The Complainant could not project any different medical impression against the said theory.
Ld. Advocate for the Complainant argued that due to defect in report the Complainant sustained mental pain and agony and had to run to different doctors at different times.
The argument is not acceptable in as much as the report of different Laboratory are found to have been quite similar in major part but the right Iliac Fossa aspect of the human organs was ignored by the other Laboratory in absence of which the report of the OP cannot be said to be erroneous, and harassing.
Due consideration is given to the lengthy arguments advanced by the Ld. Advocates for both the parties.
In the basis of the discussion made herein above vis-a-vis the observation made therein, the Commission comes to the findings that the Complainant could not establish the allegation brought against the OP up to the hilt.
Accordingly, Point Nos. 2 & 3 are answered in negative. Consequently complaint case fails.
Hence, it is
Ordered
That the complaint case No. CC/24/2021 be and the same is dismissed on contest without cost.
Let a plain copy of this Order be supplied to the concerned party by hand/by Registered Post with A/D forthwith, free of cost, for information & necessary action as per rule.
The copy of the Final Order is also available in the official website: www.confonet.nic.in. D.A. to not in the trial Register.
Dictated and corrected by me.
