HON’BLE MR. JUSTICE MANOJIT MANDAL, PRESIDENT
- The instant complaint case was filed under section 17 of the Consumer Protection Act, 1986 by the complainant Mrs. Chandra Das (Saha) for the alleged negligence of the treating doctor and the hospital, causing severe harassment, mental anxiety with no hope for better life of her baby in future. The complainant Mrs. Chandra Das (Saha) has filed the instant complaint case praying for the following reliefs :-
“i) To admit and register the complaint
ii) After hearing please to direct the opposite parties for payment of compensation to the tune of Rs.47,00,000/- to the complainant due to medical negligence conducted by them causing severe harassment and suffering.
iii) To award litigation cost of Rs.50,000/-
iv) To pass other orders as your Lordship may deem fit and proper.”
- The brief facts of the case are that the complainant Mrs. Chandra Das (Saha) was pregnant in the year 2013 and to examine the condition of the baby in ovary, the complainant approached to the opposite party No. 2 at their hospital on 17.09.2013 and as per advice of Dr. namely Dr. Biswanath Santra, USG, pregnancy and anomaly scan test were conducted on 17.09.2013.
- Further case of the complainant is that USG report has been prepared by the opposite party No. 1 Doctor who was MD Radio Diagnosis and Consultant Radiologist. The said Doctor in the USG report dated 17.09.2013 has opined as follows :-
i) There is single live intrauterine foetus of 23 weeks 0 day maturity.
ii) No obvious foetal anomalies are seen at present.
iii) Stomach, both kidneys and bladder are normal.
- Further case of the complainant is that considering the said USG report, the complainant decided to maintain pregnancy and accordingly one male baby was born on 04.12.2013. Subsequently, in the month of August, 2015 the baby namely Snehangshu Das became ill and the complainant visited Prof. Dr. Dipak Ghosh for examination of her son on 21.08.2015. Dr. Dipak Ghosh examined her baby and advised certain tests and examinations like USG, KUB, Urine < RE / ME / CS, Blood TC DC Hbg%, Urine, BT, PT, APTT, INR etc. The complainant immediately conducted all the tests and after perusing the USG report dated 13.08.2015 Dr. Dipak Ghosh was shocked and advised for repeat USG as the USG report dated 23.08.2015 revealed non visualization of left kidney and residual urine about 40 ml and the said report also suggested MR urology and other relevant investigations.
- Further case of the complainant is that the complainant conducted MRI report dated 27.08.2015 KUB test and other tests as prescribed by the Doctor and found that all the repeated tests clearly stated about non visualization of left kidney and post void study shows 12 ml of residual urine in the bladder. Dr. Dipak Ghosh after examination of all the test reports referred the baby to be examined by Dr. Subhashish Saha at AMRI, Mukundapur on 29.08.2015 for the treatment of MCU and Balanoposthaitis recurrent UTI.
- Further case of the complainant is that accordingly the complainant brought her baby namely Snehangshu Das at AMRI, Mukundapur before Dr. Subhashish Saha on 30.08.2015 where the said Dr. after examination of the patient advised for admission for the treatment of MCU test, thereafter circumcision and cystoscopy. The baby was admitted at AMRI Hospital on 10.09.2015 where circumcision and cystoscopy were done after GA on 10.09.2015. Cystoscopy showed no PUV bladder trabeculates and bladder diverticulae in 2 ( left lateral walls).
- Further case of the complainants is that due to wrong detection and observation made by the opposite party Doctor as well as Hospital, the complainant suffering with mental agony and her baby also facing acute state of health. The baby namely Snehangshu Das will be disabled for his entire life, will face physical disorder and other physical ailments till his last breath with his one kidney and enlarged bladder. His health became permanently with disorder and there was no alternative way to lead a better life.
- Further case of the complainant is that if the opposite party No. 1 Doctor opined correctly, the complainant might have decided about pregnancy and future of the baby. But due to wrong opinion the entire picture became worst, life of the complainant and her baby is unbearable and with lots of sufferings.
9. Further case of the complainant is that the complainant wrote one letter on 17.09.2015 to the opposite party No. 1 Doctor with the request to give proper explanation regarding his opinion dated 17.09.2013 but the opposite party No. 1 remained silent on receiving the letter. Hence the complainant has filed this complaint case against the opposite parties.
10. The opposite party No. 1 Dr. Bimal Kr. Saha entered appearance in this case and was contesting the case by filing written version denying the material allegations in the petition of complaint. His specific case is that he is a Doctor by profession since 2002 and obtained M.B.B.S. degree from Calcutta University in the year 2002 and degree of Dr. of Medicine (MD) in Radiology from Radio Diagnosis from Nagpur University in the year 2008. During his professional career he was attached to the opposite party No. 2 Hospital.
11. Further case of the opposite party No. 1 is that the complainant Mrs. Chandra Das (Saha) came for USG pregnancy and anomaly scan to her in the Radiology Deptt. at opposite party No. 2 Hospital on 17.09.2013. The scanning was done meticulously with due care. After satisfactory USG examination, the report was given and the patient was verbally counselled in her mother tongue that there was no obvious anomaly at that point of time but it does not guarantee that there will be no anomaly during the rest of her pregnancy period or in future after the birth of the baby. This verbal communication was also documented in NB section of the report. The report suggests that there is single, live intrauterine foetus of 23 weeks 0 day maturity. No obvious foetal anomalies are seen at present NB. The timing of development of different organs in foetus is different. As the gestation progresses more congenital anomaly became evident. Single ultrasound examination cannot rule out every anomaly and very minute anomalies are beyond scope of detection by ultrasound examination. At the time when anomaly tests were done both kidneys and urinary bladder of the foetus were normal as per gestational age of 23 weeks. Both kidneys were approximately 1.5 – 2.00 cm in length with symmetrical appearance and the respective images of kidneys and urinary bladder were documented in USG film given with the report.
12. Further case of the opposite party No. 1 is that the referring as well as the treating Doctor of the complainant Dr. Biswanath Santra was satisfied with the USG report and the images of kidneys and urinary bladder in the USG film and never aroused any complaint of non visualization of left kidney. That means kidneys were present at that time which can also be proved if USG plate is sent for examination by any expert.
13. Further case of the opposite party No. 1 is that the patient Mrs. Chandra Das (Saha) was advised for USG in later pregnancy period but she never turned up to her for follow up USG which was essential as per medical science to rule out any possible disorder. The USG done prior to the one done by the opposite party No. 1 and subsequently also has been suppressed by the complainant with ulterior motives.
14. Further case of the opposite party No. 1 is that the patient has undergone third trimester USG elsewhere by different Doctors which she had not disclosed in the complaint. As per the complainant’s verbal statement, that USG report was also normal that means the Doctor who had performed her third trimester USG also confirmed presence of both the kidneys in the foetus. He also never aroused any doubt of images of kidneys and urinary bladder given in the USG film done by him. After one year eleven months and four days of her pregnancy USG report of the complainant was consulted by Dr. Dipak Ghosh on 11.08.2015 for illness of her son Snehangshu Das aged one year eight months seventeen days. Dr. Dipak Ghosh in the prescription wrote that the baby was suffering from urinary tract infection which developed twelve months after birth. On his examination, the baby had Phimosis, long redundant prepuce, balanoposthaitis ballooning of prepuce during micturition all developed twenty months after birth.
15. Further case of the opposite party No. 1 is that non visualization of one kidney in USG and / or in MR Urography cannot be called absence. The average sizes of both the kidneys in intra uterine USG were 1.5 – 2.00 cm. From that time the right kidney has matured to 7.2 – 8.00 cm after almost two weeks and left kidney probably not matured beyond 2.7 cm and subsequently completely disappeared.
16. It is known to medical science that in a long interval time period of approximate two years various things may happen to left kidney for its atrophy and subsequent disappearance / non visualization. Commonest cause is Multicystic Dysplastic Kidney Disease (MCDK) Recurrent urinary tract infections in a patient of bladder outflow obstruction may lead to chronic pyelonephritis and is subsequent atrophy.
17. Further the patient may have suffered Multicystic Dysplastic Kidney Disease (MCDK) where Multicystic Dysplastic kidneys (MCDK) involutes before and or after birth. These may account for some of the cases that were previously thought to be Unilateral renal Agenesis MCDK is one of the condition that starts in early third trimester at around 28-32 weeks. It can be unilateral or bilateral - If bilateral, death of foetus occur in uterus. If unilateral it predominantly affects left kidney and in case of boys, incidence is 1 in 4000 to 1 in 4300 birth. In this disease cysts are developed in early third trimester at around 28-32 weeks. (ref-2,3) Macrocysts appear obvious only in the early third trimester of pregnancy. After reaching a maximum size the cysts start to involute either in utero or after birth, which may lead to a small noncystic mass, the so-called aplastic kidney (small kidney), or even to complete disappearance of the entire Dysplastic kidney. Earliest diagnosis can be done in intrauterine period at around 28-32 weeks. Mostly it is incidentally diagnosed after birth. In few patients follow-up examinations at the ages of 3,5 and 32 weeks after delivery shows what would have been called unilateral agenesis of the affected side if no fetal US study had been done. MDCK is usually not associated with symptoms. Marked reduction in size or complete disappearance of the MCDK was observed on serial US examinations between 7 months after diagnosis upto two years. Even on surgical exploration no trace of a kidney, renal artery, or ureter is seen. Have usually problem to other kidney like hydronephroureterosis / urinary bladder wall anomally (ref-3, 5).
18. From the documents disclosed it is absolutely clear that Dr Dipak Ghosh referred the baby to Dr Subhasis Saha at AMRI Mukundapur on 29-08-2015 for the treatment of MCU, balanoposthaitis and recurrent UTI developed after birth. None of these can be related to 23rd week intrauterine USG results or related to follow up non visualization of left kidney.
19. The report of MCU test done on 01-09-2015 by Dr C.K. Banerjee DMRD, shows prominent trabeculations or urinary bladder noted with two small vesical diverticulae in left lateral wall. These findings were confirmed by Dr Subhasis Saha on 10-9-2015 on cystoscopy. The findings are suggestive of bladder outlet obstruction due to post natal phimosis. However these findings were absent in USG and MR Urography reports done on 23-08-2015, 27-08-2015 and in 29-08-2015. Hence changes in urinary bladder wall due to long standing bladder outflow obstruction due to Phimosis developed after birth cannot be predicted in 23rd week intrauterine USG. Furthermore earliest congenital bladder wall diverticulae is diagnosed in 36 weeks of pregnancy.
20. The baby has undergone circumcision for Phimosis and its complications which developed after birth. Hence responsibility cannot be taken by answering opposite party.
21. It is pertinent to mention that the fetus had two kidneys of same sizes detected at 23 weeks of pregnancy, clearly documented in USG film. The fetus had normal urinary bladder at that time which was also documented in USG Film. No follow up USG was done by OP No. 1 during approximate two years. Hence atrophy and or subsequent complete disappearance of left kidney due to any reason cannot be called wrong detection and observation on 23 week USG pregnancy and Anomaly scan.
22. The baby after birth at the age of 20 months developed phimosis, recurrent UTI, balanoposthaitis and had undergone circumcision operation with diagnostic Cystoscopy which again cannot be predicted in 23 week intrauterine pregnancy USG.
23. On 05-09-2015 Mrs Chandra Das Saha came to meet Dr. Saha with three of her relatives in RSV Hospital Kolkata, presently he is working with. She quickly showed Dr Saha USG report, USG film and few other radiological reports. Dr Saha clearly and firmly told them it was a case of atrophy and involution which is not uncommon. Even after all discussion they continued to blame on him. On 12-09-2015 she called him in his busiest working time and inform him about cystoscopy report. Once again Dr Saha told her it was a case of atrophy and involution which is not uncommon. However she put down the phone in middle of the conversation.
24. As such, the opposite party No. 1 has prayed for dismissal of the complaint case with exemplary costs.
25. The opposite party No. 2 Hospital entered appearance in this case and was contesting the case by filing separate written version denying the material allegation in the petition of complaint. Their specific case is that they treated the patient through the opposite party No. 1 Doctor on 17.09.2013. The developments / deterioration thereafter, if any, in the patient was neither reported nor communicated to them at any point of time till 23.08.2015. There was no manifestation, clinical investigative findings of any form or manner in the period between 17.09.2013 to 23.08.2015. The patient (baby) developed a complication after one year eight months of his birth and the same has no nexus with the findings of the opposite party No. 1 Doctor in any form or manner. The diagnosis finally done at AMRI Hospital as reflected in the discharge summary dated 10.09.2015 refers to belanoposthaitis and recurrent UTI, both of which are suggestive of post birth complications and has nothing to do with the presence or absence of kidney. The complainant has purposefully suppressed proof of imaging done on her in the third trimester in order to frame this malicious complaint.
26. Further case of the opposite party No. 2 Hospital is that the opposite party No. 1 had opined correctly in the USG report dated 17.09.2013 on the 23rd week of pregnancy and complications, if any, has resulted in the 3rd Trimester of the gestation period. Changes in the kidney at the pre natal stage usually take place in early 3rd Trimester of pregnancy whether in the form of cyst or otherwise and starts involuting the kidney of the baby within the uterus or after the birth. No abnormal clinical change is usually formed in the 23rd week and the present case was no exception either.
27. Further case of the opposite party No. 2 is that the opposite parties are not liable in any form or manner. The complainant has failed to place any evidence to show that ultrasound imaging conducted by the opposite party No. 1 at the opposite party No. 2 was not as per medical norms and / or that the opposite parties No. 1 & 2 are not equipped with any form or manner.
28. Further case of the opposite party No. 2 is that the baby had developed urinary (tract) infection which developed twenty months after his birth.
29. Hence the opposite party No. 2 has prayed for dismissal of the complaint case with costs.
30. Both parties have filed evidence on affidavit in support of their case. The opposite parties filed questionnaire in respect of the evidence filed by the complainant. The complainant also filed questionnaire against the evidence filed by the opposite parties. Both parties have filed replies against the evidence on affidavit filed by both sides. The complainant has not filed BNA in support of his case. On the other hand, opposite party No. 1 has filed BNA in support of his case.
31. The matter was listed for final hearing on 18.08.2023 when the counsels for both sides appeared and advanced their arguments.
32. We have perused the records of the case and given a careful consideration to the subject matter.
33. Short question for adjudication of this complaint is whether the allegation of negligence as against the opposite parties in the matter of giving opinion with regard to USG report, made out as argued by the Learned Counsel for the complainant and, if so, whether the complainant is entitled for the relief claimed? Learned Counsel for the complainant during the course of argument has frankly argued that the report proves that there is no negligence on the part of the opposite parties. So, the complainant has failed to prove the case.
34. On the other hand, the Learned Lawyer for the opposite parties has argued that the complainant has failed to prove the case. Report also proves that there is no negligence on the part of the opposite parties. So, the complaint case should be dismissed. During the pendency of the case, the opposite party No. 1 Dr. Bimal Kr. Saha had sought for an expert opinion from the IPGME&R & SSKM Hospital, Kolkata on the subject matter whether there has been negligence apparent on the face of the record on the part of the treating Doctor or the Hospital whose opinion since received, observing that no case of medical negligence made out. The relevant extracts of the opinion received is as under :-
“Expert opinion as per Notice Memo No.SSKM/MSVP/4367/2021 dated 26th July, 2021, with reference to USG film & report submitted by the complainant in c/w Complaint Case No.CC/6/2016 the matter of Mrs. Chandra Das (Saha) vs. Dr. Bimal Saha, MD Radiologist and Others.
We, the members of Expert Committee comprising of Professor (Dr.) Utpalendu Das, HOD of the Dept. of Radiology, IPGME&R-SSKM Hospital, Kolkata (Chairman), Professor (Dr.) Madan Karmakar, Dept. of Radiology, IPGME&R-SSKM Hospital, Kolkata and Dr. Archana Singh, Associate Professor of the Dept. of Radiology, IPGME&R-SSKM Hospital, Kolkata, met on 28.07.2021 at 12 noon at the Seminar Room of Radiology Department in relation to the above mentioned case and unanimously arrived at the following observations :
Observation :
- The single prenatal USG examination of Mrs. Chandra Das (Saha) at 23 weeks of gestational age on 17.09.2013 at G.D. Hospital & Diabetics Institute, Kolkata showed presence of two kidneys as marked on the provided film and also mentioned in the report.
- In agenesis of a kidney the same sided Adrenal gland may mimic ipsilateral kidney.”
35. The record goes to show that the complainant did not challenge the reports submitted by the IPGME&R & SSKM, Hospital, Kolkata. Record also goes to show that the complainant has not filed any application praying to examine the Doctors who took part in the Board of the Expert Committee. Therefore, we are of the view that there is nothing on record to disbelieve the said report submitted by the Expert Committee on 28.07.2021.
36. Under these facts and circumstances and on consideration of the said report it may be concluded that the Expert Committee had evaluated the report prepared by the opposite party No. 1 Doctor and had also examined the USG plate based on which the report was given. We are of the view that the said Expert Committee has clearly and categorically stated that the USG plate which was examined contained two kidneys. The Expert Committee had also given their opinion as to why subsequently one of the kidney disappeared.
37. Under these facts and circumstances and on consideration of the report submitted by the Expert Committee we are of the view that there was no negligence on the part of the opposite parties and the case cannot be labelled as a case of medical negligence. In the result, the report submitted by the Expert Committee may be considered as correct and true. On consideration of the said report submitted by the IPGME&R & SSKM, Hospital, Kolkata it can safely be held that there was no negligence or deficiency in service on the part of the opposite parties.
38. In Des Raj Singla and Ors. V. Dayanand Medical College & Hospital & Ors. reported in 2022 (1) CPR 45 (NC) the Hon’ble National Commission observed that :-
“ Onus to prove medical negligence lies largely on the complainant and that this onus can be discharged by leading cogent evidence.
A mere averment in a complaint by no stretch of imagination, be said to be evidence by which the case of complaint can be said to be proved. It is the obligation of the complainant to provide hard evidence to prove the case of medical negligence against the Doctors / Hospitals.”
39. The Hon’ble Apex Court has pronounced in a case reported in 2022(1) CPR 443(SC) (Dr. Harish Kumar Khurana V Jaginder Singh and ors.) that :-
“In every case where the treatment is not successful or the patient dies during surgery, it cannot be automatically assumed that the medical professional was negligent”.
40. We appreciate the pain of the complainant, but then that by itself cannot be a cause for awarding compensation for passing away of his son. We have sympathy for the complainant, but sympathy cannot translate into legal remedy.
41. Having regard to the discussion done and legal position explained, we are of the considered view that negligence as alleged against the treating doctor or the opposite party Hospital cannot be substantiated and thus the complaint cannot be allowed.
42. In the result, the complaint case be and the same is dismissed.
43. There will be no order as to costs.
44. The complaint case is thus disposed of accordingly.
