Hon’ble Mrs. Rumpa Mandal, Member.
Alleged wrong medicinal diagnosis by the O.P. No.1 doctor is the bone of contention to file the present case by Complainant against the O.Ps. The basic fact as stated by the Complainant in the complaint is reproduced in brief to the effect that the Complainant Smt. Sunita Roy felt some severe abdominal pain with acute fever for which Complainant came to Dr. S. Halder, M.B.B.S. on 30.01.2017 alongwith her husband. Dr. Halder examined her and advised ultrasonography whole abdomen (U.S.G.). After holding U.S.G on that date it was found that “One medium size (47.7 mm x 42.5 mm x 43.6 mm) well demarcated complex SOL is seen in Right Adnexa” and impression is “Right side T.O. mass Enlarged Uterus”. Complainant immediately consulted with Dr. Halder on 31.01.17 and he advised her to meet with gynaecologist. Complainant met with Dr. Bhaskar Jyoti Mani (Gynae and OBS) on 02.02.17 alongwith the said report. Dr. Mani suggested that it was fully surgical matter and prescribed some medicines indeed for relieving pain apparently. On 21.02.17 Complainant started for Chennai Apollo Hospital alongwith her husband by air bus with a view to taking better treatment and appeared before Dr. C. Swarna kumari on 22.02.17. Dr. Swarna kumari had done several physical tests of the Complainant at Apollo cradle. As per pelvis report of the Complainant, it had found that “Right Adnexa appeared normal, Left Adnexa appeared normal impression Bulky Uterus” which had been found discrepancy with the report of Cooch Behar USG. i.e. O.Ps (O.P. No.1 & 2). Having perused the report by Dr. C. Swarna kumari prescribed medicines and advised to carry on with the medicines up to three months. Thereafter, Complainant came back home alongwith prescribed medicines of Dr. Swarna kumari and began to take medicine and began to feel better also within short time. At present Complainant is normal after taking the medicines of Dr. Swarna kumari, Chennai. Due to such wrong diagnosis of O.Ps, the Complainant suffered mental pain and agony and also continuous use of medicine. The OP received a sum of Rs. 900/- for USG. The cause of action arose on 31.01.2017 and on other dates. The Complainant prayed for an award for refund of Rs.50,000/- for deficiency in service and medical negligence, Rs.50,000/- for Nursing Home charges at Chennai with miscellaneous expenditure, Rs. 50,000/- for mental pain, agony and harassment and litigation cost of Rs.10,000/-.
The O.Ps Dr. P. Sanyal and Cooch Behar Scan Centre in which OP has attached to contest the case by filing written version wherein they denied each and every allegations. The positive defence case of the O.Ps in a few wards is that the O.P. No.1 Dr. P. Sanyal is a consultant Radiologist and Ultrasonologist having master degree in the same field with wide experience. OP stated that Complainant is not a consumer under the Consumer Protection Act, 1986 and the case is not maintainable in the eye of law. Complaint case is bad for non-joinder and mis-joinder of parties. The other doctors and diagnostic centres where the patient was allegedly been treated are necessary parties to this present case.
It is fact that the OP Dr. P. Sanyal conducted USG for whole abdomen in Cooch Behar Scan Centre on 31.01.2017 referred by Dr. Halder, M.B.B.S. and thereafter issued USG report on the basis of what he found during examination i.e. one medium sized (47.7 mm x 42.5 mm x 43.6 mm) well demarcated complex SOL is seen in Right Adnexa and some other things have also been noticed in uterus and also gave impression “Right sided TO mass” and “Enlarged Uterus”. Complainant was medically treated by Dr. Bhaskar Joyti Mani, Gynaecologist and an Adnexal mass measuring 47.7 mm x 42.5 mm x 43.6 mm can be disappeared automatically after a few menstrual cycles in natural way at any point of time. So such Adnexal mass may not be seen on the subsequent USG report. So, the USG report dated 31.01.17 furnished by the O.Ps was absolutely Right and such Adnexal mass may not be seen on the subsequent USG reports OP also stated that Dr. Mani advised the patient (Complainant) to come after one month after taking the medication prescribed by him for further check up. The O.P. No.1 nor O.P. No.2 had suggested the Complainant to go for any further treatment. OP has given his USG findings only. Therefore, any omission by Dr. P. Sanyal in his report on that aspect does not mean that the report of OP is wrong. Again Complainant without ill motive investigated with Dr. C. Swarna kumari on 22.02.2017 and during treatment of the Complainant as per pelvis report of the Complainant it had been found that “Right Adnexa appeared normal, Left Adnexa appeared normal impression Bulky Uterus”. It is pertinent to mention that since 02.02.17 to 22.02.17 the Complainant was under constant treatment and medication. So, the Adnexal mass measuring 47.7 mm x 42.5 mm x 43.6 mm can be disappeared automatically after a few menstrual cycles in natural way. Accordingly, there is no wrong in the report of the O.Ps patient was under medication. The OP denied that he ever admitted or accepted any fault of the USG report and 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 of Determination
- Whether the present case is maintainable in its present form and prayer?
- Whether the Complainant is entitled to get any relief as prayed for?
- To what other relief 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.900/- 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.900/- towards USG in Para No.3 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.
After perusing the pleadings of the parties and the evidence on record, this Commission is of the view that the Complainant is a consumer under the C.P. Act.
All though the OP challenge the case that it is bad for defect of parties yet it appears from the case record that the other doctor who medically treated the Complainant are not the necessary party because there is no direct link in between the nature of treatment alleged of and the treatment given by those doctors.
However, having perused the pleadings of the parties and the evidence in the case record this Commission consider that the case is not bad for defect of parties.
Accordingly, Point No.1 is answered in affirmative and decided on behalf of the Complainant.
Point Nos. 2 & 3.
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 admitted fact that the O.Ps done USG of whole abdomen of the Complainant on 31.01.2017 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 Cooch Behar Scan Centre wherein the impression under the said report as stated as “Adnexa one medium size (47.7 mm x 42.5 mm x 43.6 mm) well demarcated complex SOL is seen in Right Adnexa and gave impression “Right sided T.O mass” and “Enlarged Uterus”.
It is fact that the Complainant took medicine as per prescription of Dr. Mani from 02.02.2017 and as a result her pain had been relieved. On 21.02.2017 Complainant started for better treatment in Chennai Apollo Hospital by Air Bus and appeared before Dr. C. Swarna kumari on 22.02.2017. After some physical tests as per Dr. Swarna kumari it had been found that “Right Adnexa appeared normal, Left Adnexa appeared normal and impression Bulky Uterus” which had been found disparities with the report of Cooch Behar USG i.e. O.Ps (O.P. No.1 & 2). After that Dr. C. Swarna kumari prescribed medicines and advised to carry on with the medicines up to three months. The Complainant is normal after taking the medicines of Dr. Swarna kumari, Chennai.
It is the defence plea that patient was under medication and an Adnexal mass measuring 47.7 mm x 42.5 mm x 43.6 mm can be disappeared automatically after a few menstrual cycles in natural way at any point of time. So such Adnexal mass may not be seen on the subsequent USG reports. As the other USG report does not suggest any Adnexal mass that cannot be any ground to suggest that the report furnished by O.Ps cannot be fastened with any liability. In this connection O.Ps submitted some medical documents.
Let us have a further look into the medical science literature and the research paper submitted by the Ld. Advocate for the O.Ps.
As per the said medical science papers “generally no treatment is required and many of these cysts resolve spontaneously within 6-12 weeks. A 2 year interim analysis from the international ovarian tumour analysis phase 5 (10TA5) study showed that 80% of ovarian cysts considered benign on ultrasonography either disappeared or required no intervention. About one third of pre menopausal women develop a cyst”. In the research paper, it is also mentioned that “functional cysts usually disappear on their own after a few days or weeks. If ovarian cysts are less than about 2 inches (about 5 centimetres) in diameter they usually disappear without treatment”.
Thus the medical science research papers suggest that Adnexal masses may go away on their own 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 ovary, uterus and fallopian tubes. It is also important to consider that in each report therein an impression on about Bulky Uterus. 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.
Ld. Advocate for the Complainant argued that even in last occasion where one medium size (47.7 mm x 42.5 mm x 43.6 mm) well demarcated complex SOL is seen in right Adnexa and some other things have also been noticed in uterus and gave impression “Right sided T.O mass” and “Enlarged Uterus”, but how could detected that “Right Adnexa appeared normal, Left Adnexa appeared normal impression bulky uterus” within a gap of few days test.
The OP took the plea that with an ill motive just to harass the OP the Complainant went to Chennai Dr. C. Swarna kumari for better treatment but the Dr. C. Swarna kumari was unaware of the said ill motive and she issued report to that respect.
Regard being also had to the evidence in cross-examination. Further perusing the reply to the interrogatories it transpires that the OP answered that large uterus is a common phenomena and it may disappear of its own. After perusing the entire evidence in the cross-examination it is found that the problem alleged to have been faced by the Complainant cannot be directly attributed to the O.Ps.
That apart the Complainant seems to have taken medical treatment Apollo Hospital, Chennai at her own discretion. Moreover, the said Dr. C. Swarna Kumari has not expressed any opinion that the previous treatment of the OP doctors were wrong and defective. So also the said doctor of Apollo Hospital, Chennai has not expressed any opinion that the present patient suffered any physical inconvenient for there is any side effect due to alleged wrong treatment by the OP doctor.
In the backdrop of the aforesaid observation the Commission considers that levelled against the OP doctor could not be proved up to the hilt.
Ld. Advocate for Complainant argued that due to wrong treatment Complainant had to go to Chennai Apollo Hospital so she suffered mental pain and agony.
The argument is not acceptable since the medical report of Chennai does not disclose any abnormality in the uterus part of the Complainant.
Accordingly, Point Nos. 2 & 3 are answered in negative.
Consequently, the case fails.
Hence, it is
Ordered
That the complaint case No. CC/9/2019 be and the same is dismissed on contest without cost.
D.A. to note in the trial Register.
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.
Dictated and corrected by me.
