Hon’ble Mr. Haradhan Mukhopadhyay, President.
The concise fact of the case of the Complainant is that the Complainant Smt. Beli Roy had been suffering much from abdominal pain against which she was medically treated by OP doctor and on the advice of the previous Dr. N.C. Mallick she under gone an USG at the Diagnostic Centre of O.P. No.1 Dr. Rahul Khetawat namely Usha Diagnostic Centre, on payment of fees of Rs.1000/-. After the said USG it was found that there was recurrent Appendicitis on 31.01.18. After getting the said USG report the Complainant contacted with Dr. N.C. Mallick against which Dr. Mallick advised that she was suffering from recurrent Appendicitis and advised for immediate operation under a surgeon with some medicines. The Complainant collected somehow Rs.50,000/- from the Bandhan Bank. The Complainant contacted with Dr. Saumen Chakrborty MBBS, MS attached to Dr. P.K. Saha Hospital Cooch Behar on 23.04.18. On examination Dr. Chakraborty advised for another USG of whole abdomen. Accordingly, the Complainant undergone USG at Dr. P.K. Saha Hospital Cooch Behar on 24.04.18. In the said report it was found that the impression was normal USG of abdomen and Dr. Chakraborty opined that she was fully normal and free from Appendicitis. In order to be assured for mental satisfaction she further undergone USG of whole abdomen at Usha Diagnostic Centre under O.P. No.1 on 24.04.18 on payment of Rs.1000/- and the impression was One calculus (4.4mm in size) is seen in the upper pole calyx of right kidney without hydronephrosis. No calculus or hydronephrosis in left kidney. “Right renal upper pole calculus”. Due to disparity in the report the Complainant was disheartened. Again in order to be finally sure the Complainant undergone USG of whole abdomen test at Star Imaging Centre, Cooch Behar under Dr. Sanjeet Kr. Oram, MD Radiologist on payment of Rs.1000/- on 03.05.18. The report was normal USG of abdomen. Ultimately it is being seen that the result of USG at different times were different due to lack of ordinary skill and care despite spending huge money after borrowing. The Complainant suffered both financially and physically due to wrong diagnosis of O.Ps for which the Complainant had to take medicine. The Complainant therefore prayed for an award against the O.Ps for Rs.2000/- paid by her on 31.01.18 and 24.04.18, Rs. 1.5 Lakhs towards medical negligence and unfair trade practices, Rs.35,000/- for mental pain and agony and Rs.10,000/- towards litigation cost.
The O.Ps contested the case by filing written version denying each and every allegation of the Complainant. The positive defence case of the O.Ps in brief is that the Complainant’s case is bad of non-joinder and mis-joinder of parties. Dr. N.C. Mallick, Dr. S. Chakraborty, Dr. Sanjeet Kr. Oram, SD Diagnostic Centre, Dr. L.C. Basak, Dr. P.K. Saha Hospital Cooch Behar and Star Imaging Centre are the necessary parties. Without impleading them as necessary party the case is bad for defect for parties. It is fact that the O.P. No.2 conducted USG on 31.01.18 against actual charge for such investigation with proper receipt. The O.P. No.1 being a specialized doctor conducted USG and supplied USG report on the basis of what he had found during examination and did nothing. She again came on 24.04.18 after about three months referred by Dr. N.C. Mallick and conducted USG of her whole abdomen against actual charge and prepared the report on the basis of what she found during examination. The O.P. No.1 never advised for any operation whatsoever to the Complainant. On the contrary while giving her opinion the O.P. No.1 clearly advised clinical correlation/ follow up to the patient. Whatever further treatment the patient received, if any that was done at her own accord. So on the basis of such report the O.P. No.1 cannot be fastened in any way. There was no negligence on the part of the both O.P. No.1 & 2. Both the O.Ps through their written version claimed that the case of the Complainant is liable to be dismissed with cost.
The rival contention of both the parties of the case demands for ascertainment of the following points for proper adjudication of the case.
Points for determination
- Whether the case is maintainable in its present form and prayer and bad for defect of parties?
- Whether the Complainant is entitled to get the relief as prayed for?
- To what other relief if any the Complainant is entitled to get?
Decision with reasons
Point No.1.
It is the admitted fact that the O.P. No.1 conducted USG two times at the O.P. No.2 Diagnostic Centre on 31.03.18 and 24.04.18.
It is further found from the case record and on the basis of the pleadings and evidence it is evident that the Complainant undergone medical treatment under different doctors at different times namely Dr. N.C. Mallik on 31.01.18, Dr. Soumen Chakraborty on 23.04.18, Dr. Sanjeet Kumar Oram on 03.05.18, Dr. L. C. Basak, Dr. P.K. Saha Hospital private Limited, Cooch Behar and Star Imaging Centre. Therefore the Radiologist who conducted the USG of the Complainant at different times are proper and necessary parties, the presence of who are require for proper adjudication of the case. The different Diagnostic Centres are also necessary parties.
The Complainant tried to fasten only the O.P. No.1 & 2 who conducted the USG of the Complainant two times. But the Complainant also was medically treated and she had undergone USG at different Diagnostic Centre under different doctor. So their medical opinions are required to look into as to under what conditions those reports were prepared. In absence of all these necessary and proper parties the responsibility of the O.P. No.1 & 2 cannot be ascertained out right. Accordingly, the case suffers from defect of parties. The OP pleaded that point in para-7 at the outset against which the Complainant ought to have taken proper steps but did not take any such steps.
Point No.1 is accordingly answered in negative.
Points No.2 & 3.
These points relate to ascertainment as to the entitlement of relief by the Complainant. The Complainant alleged that same test on USG of the same body have been caused for testing but results are not identical from the O.Ps. So the whole of the incident were not properly diagnosed and lack of ordinary care and skill.
A plain reading of the allegation in the pleading suggests that the Complainant tried to hold the O.Ps responsible for the improper report in different times. It is the defence plea that the Complainant done USG after a gap of about four months for which the report may differ. Ld. Defence Counsel argued that the right iliac fosa has not been taken into consideration by the other doctors in course of medical examination. Right iliac fosa is a place where Appendix is found. By using the medicine the said Appendix cured and as such subsequently it was not found.
The argument has reasonable force. After perusing the document it is found that the Complainant undergone USG with the O.Ps on 31.01.18 and subsequently it was on 24.04.18.
The documents filed by the Complainant being Annexure-A is the document dated 31.01.18 with which USG was done. Annexure-B supports the claim of the Complainant that USG was done for Rs.1000/-. As per Annexure-C being USG report of the Complainant wherein under the body part right iliac fosa image was that Appendix is mildly inflamed and is oedematous. It is non-compressible. There is mild inflammatory changes around Appendix. There is mild probe tenderness is seen in right iliac fosa. Impression: Recurrent Appendicitis. Advice: Clinical correlation follow up.
Annexure-E discloses that after about four months the Complainant was medically treated at Dr. P.k. Saha Hospital under Dr. S. Chakborty. She undergone USG at Dr. P.K. Saha Hospital wherein the impression was normal USG of abdomen. In the said Annexure-F/1 dated 24.04.18 nothing details is disclosed as to right iliac fosa. Therefore the defence of the OP that in such a situation the report may differ is acceptable.
Ld. Defence Counsel argued that with the passage of time the said Appendix might be cured by using medicine.
After perusing the pleadings and the evidence on record it is evident that the Complainant was constantly under medical treatment of different doctors during the intervening period from 31.01.18 to 24.04.18. Therefore the defence plea that due to medication and continuous use of medicine the said Appendix might be cured and accordingly that might have been disappeared.
As regards the another report dated 24.04.18 done by the OP being Annexure-H, it is disclosed that under the heading right iliac fosa the impression is no focal fluid collection or mass lesion in RIF. No obvious inflamed mesentery or oedematous bowel in right iliac fosa. Appendix could not be identified. Clinical correlation is suggested.
One important point to consider is that the report of USG dated 24.04.18 being Annexure-F/1 and the report of USG dated 24.04.18 done by O.P. No.2 being Annexure-H have some resemblance and similarity in as much as under the both report the Appendix were not found. Therefore the report of the O.P. No.2 cannot be ipso facto be held as defective and improper.
The Complainant also proved another USG report dated 03.05.18 that is after a week wherein there was normal USG of abdomen which was done by Star Imaging Centre by Dr. Sanjeet Kumar Oram.
Thus the claim of the OP that due to use of medicine Appendix was healed and disappeared appears to be correct.
The evidence in the case record further suggests that the Complainant cross-examined the O.Ps wherein the OP answered that the O.P. No.1 is MD Radio-Diagnosis since 2017.
It is further evident from the cross-examination that the Appendicitis can be cured by administration of antibiotic or surgery in case of recurrent Appendicitis.
The O.P. No.1 answered against that question that new study points out that antibiotic can be effective in treating Appendicitis. The research says in some cases the antibiotic can eliminate the need for surgery.
Any answer which comes in cross-examination has a special effect. If the witness being a doctor answers in cross-examination that Appendix can be cured by using of antibiotic, the defence plea that the Complainant recovered Appendicitis by use of medicines and antibiotic is acceptable and the answer in cross-examination has a very strong significance.
The Complainant also questioned the O.P. No.2 as to from which period they are carrying on business and whether the O.P. No.2 Diagnostic Centre was registered under the clinical establishment Act.
The O.P. No.2 answered that their Diagnostic Centre is registered under the clinical establishment Act.
On the contrary the O.P. No.1 questioned the Complainant that whether she was on antibiotic or medication during the period 31.01.18 to 24.04.18, the Complainant answered that it is matter of record. It means that she could not deny that she was not medical treatment during the period 31.01.18 to 24.04.18.
That being the evidence on record, reasonable inference is drawn that the defence plea that due to use of medication the Appendix of the Complainant disappeared and the subsequent reports were prepared accordingly is duly accepted.
Ld. Defence Counsel further argued that the Complainant did not undergo any operation as advised by the doctor.
The argument is acceptable. Thus the Complainant seems to have not gone for any operation. However, the defence plea is that due to use of medication and antibiotic the Complainant was recovered. Anything contrary being proved by the Complainant the, OP cannot be held responsible for the disputed report.
Thus having assessed the evidence available in the case record and on the basis of the observation made herein above the Commission comes to the findings that the Complainant could not establish the allegation against the O.Ps up to the hilt.
Points No. 2 & 3 are accordingly decided against the Complainant.
In the result the complaint case fails.
Hence, it is
Ordered
That the complaint case No.CC/39/2018 be and the same is dismissed with contest without any 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.
