Hon'ble Mr. Haradhan Mukhopadhyay, President.
The gist of the case reduced in black and white depicts the fact that the Complainant Surabhi Saha detected some pimples on her face at the relevant time for which she consulted with OP-1 Dr. Pinaki Tarafdar. The OP-1 at that time advised her to undergo certain examinations and a scan of the abdomen and also prescribed some medicines. Accordingly, the Complainant went to the OP-2 Dr. P. Sanyal and undergone scan of her abdomen. Thereafter the OP-2 mentioned in the Scan Report that she had developed a tumour at her uterus. The Complainant having taken the said report, went to the OP-1 who suggested her to consult with a surgeon in order to remove the said tumour by operation. Accordingly, the Complainant went to the OP-3 Dr. Sudipto Halder of Falakata. He told the Complainant to undergo a scan again. Thereafter the Complainant went to OP-4 Dr. A. K. Sikder and the OP-4 conducted a scan and mentioned in his report that there was no tumour on her uterus. Thereafter the Complainant went to the OP-3 along with the said report. The OP-3 at that time stated to the Complainant that there was no tumour at her uterus and as such she did not undergo any operation. Subsequently, the Complainant mentally broken down and consulted with her well wishers and went to the OP-5 Dr. M. K. Choudhary. The said OP-5 conducted some tests and again held scan and mentioned in her report that there was no tumour in her uterus. So finally the Complainant became restful. Had the Complainant undergone any operation by OP-2 on the basis of the report of OP-3, then she could have died or in the alternative she could have committed suicide out of social prestige and loss of reputation because she was an unmarried girl of only 21/22 years. Therefore, due to wrong treatment by the OP-2, she incurred a medical expense of Rs. 1,00,000/- and claimed compensation for her mental harassment of Rs. 4,00,000/-, total Rs. 5,00,000/- from the O.P. No. 2.
The OP-2 contested the case by filing written version denying each and every allegation of the Complainant.
The positive case of the OP-2 in brief is that the Complainant’s case is bad for non-joinder and mis-joinder of parties. The OP-2 Dr. P. Sanyal is a radiologist and ultrasonologist having Masters Degree in that field and wide experience. One patient namely Surabhi Saha went to the Cooch Behar Scan Centre on 30.09.2016 for an USG of pelvis referred by Dr. Pinaki Tarafdar and he conducted an USG of the said patient accordingly on that day. After the said USG, he issued the report on the basis of what he found during the examination. While examining the pelvis area through the said process of USG, one fairly large (82.4 mm × 49.9 mm × 69.0 mm) multi-septate Cystic SOL is seen in left adnexa and some other things were also noticed in the uterus and ovaries. Ultimately on the basis of such finding, the OP gave impression “left sided ovarian cyst” and “mildly bulky retroverted uterus”. As the patient was under medication and ovarian cyst at that time can be disappeared automatically after a few weeks or months in natural way at any point of time. So such cyst may not be seen on the subsequent USG reports. As the other two USG reports do not suggest that the report furnished by the OP-2 is not correct, so the OP-2 cannot be fastened with any liability.
The OP-2 mainly contested the case. Having perused the pleadings of both the parties and the disputes involved in the matter, the Commission considers it necessary to ascertain the following points for proper adjudication of the case.
Points for determination
- Whether the Complainant is a Consumer under the C. P. Act?
- Whether the report of USG and the opinion of Dr. P. Sanyal OP-2 is wrong, misleading and mischievous in nature?
- 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 point relates to ascertainment as to whether the Complainant is a Consumer or not. The Complainant appears to be a patient who went to the Doctor OP-2 for a scan in respect of which she paid some money after obtaining some service. Therefore the relation between the Complainant and the opposite party vis-à-vis the dispute appeared to have come within the perview of the C. P. Act.
Although the OP did not dispute the status of the Complainant as a Consumer yet after perusing the pleadings of the parties and the evidence on record, I am of the view that the Complainant is a Consumer under the C. P. Act.
Accordingly, Point No. 1 is answered in affirmative and decided on behalf of the Complainant.
Point No. 2:-
The present point centres around the crux of the case. The Complainant challenged the manner of submitting the report and the effect of the said report which could be fatal for her and she might have committed suicide because of lowering down her prestige in the society.
The OP-2 Dr. P. Sanyal claimed himself as a renowned radiologist and ultrasonologist having Masters degree in the same field and wide experience.
The OP in regard to his said assertion of qualification and experience adduced evidence by filing evidence on affidavit sworn on 27.11.2017 and filed on 28.11.2017. After perusing the case record, it transpires that the Complainant did not cross-examine the OP by challenging his qualification and experience.
It further appears from the case record that this Commission by its Order No. 11 dated 26.02.2018 directed the Superintendent of MJN Hospital, Cooch Behar for getting the USG plate dated 30.09.2016 examined through a radiologist/ sonologist to ascertain as to whether any cystic SOL is seen in the left adnexa or not and submit a report.
Accordingly, the said Superintendent of MJN Hospital, Cooch Behar submitted a report dated 05.04.2018 by Memo No. 1153, held and prepared by Dr. Subhasish Chatterjee on 30.03.2018.
The said report is reproduced herein below as under:
“Ultrasonography is an operator-dependant investigation. The opinion on USG is mostly based on the live viewing of the features in the USG Monitor during the examination directly. Accurate opinion is not possible by examining a USG plate only.
I examined the USG plate supplied (Cooch Behar Scan Centre, Suravi Saha, 30/09/2016). A picture suggestive of a cystic SOL is detected in one of the views, but the exact location and nature of the lesion cannot be ascertained from this USG plate.”
After perusing the said report, it transpires inter-alia that the said doctor stated in his report that a picture suggesting of a cystic SOL is detected in one of the views, but the exact location and nature of the lesion cannot be ascertained from this USG plate.
Thus the opinion of the said doctor through his report appears to be not absolutely contrary to the report submitted by the OP-2.
In order to remove the doubt or any discrepancy between the report and opinion on the one side and the harassment and running to different places by the Complainant for verifying the opinion of the OP-2, let us have a further look into the medical science literature and the research paper submitted by the Ld. Advocate for the OP-2.
As per the said Medical Science papers, most adnexal tumours are benign (non-cancerous). Many adnexal masses go away on their own. They can appear at any age and most of them go away on their own within a few months.
In the Research paper, it is also mentioned that adnexal masses are not harmful and will eventually resolve on their own. The majority of adnexal tumours are not dangerous and they may even go away on their own over time.
Thus the Medical Science research papers suggest that the said adnexal tumours may go away on their own over time. After perusing the case record, it also transpires that it is an admitted fact that the OP-2 conducted the USG and reported in the manner as the Complainant stated but there was no major mistake or any mischievous attempt by the OP-2 to cause any harm to the Complainant.
The best evidence of the Medical Expert has been sought for in the instant case by the Commission from the Superintendent of MJN Hospital, Cooch Behar wherein Dr. S. Chatterjee, M. O. (Radiologist) opined the same view as expressed by the OP-2.
Thus assessing the entire evidence on record, in the light of the case and counter case made out by the parties I come to the finding that there was no negligence on the part of the OP-2 Dr. P. Sanyal and as such the report of OP-2 is not wrong, misleading and mischievous.
Point No. 2 is thus answered in negative and goes against the Complainant.
Point No. 3 & 4:-
These points relates to the entitlement of relief by the Complainant. Previously the major point like Point No. 2 has been decided against the Complainant. The Points No. 3 & 4 are being corollary to Point No. 2, and as such due to Point No. 2 casts a serious impact on Points No. 3 & 4.
That apart the Complainant in Para-8 of her complaint depended and expressed her concern over some hypothetical matter that had there been any operation upon her, she could have died and she also could have committed suicide out of social prestige.
In fact so far as the provisions of law are concerned, hypothetical inference of anything cannot take the place of actual fact which should be proved by evidence only.
Accordingly, the Complainant is not entitled to get the relief as prayed for.
Points No. 3 & 4 are thus answered in negative and held against the Complainant.
Consequently, the case of the Complainant fails on contest.
Hence, it is
Ordered
That the Complaint Case No. CC/92/2017 be and the same is dismissed on contest without cost.
Let plain copy of this order be supplied to the parties concerned by hand/by post forthwith, free of cost for information and necessary action, if any.
The copy of the Final Order is also available in the official Website www.confonet.nic.in.
Dictated and corrected by me.
