KUNDAN KUMAR KUMAI 

This is an Appeal under section 15 of the Consumer Protection Act, 1986, preferred against the Order and Judgement passed by the Ld. DCDRF, Malda on 09/03/21, in DFC Case No. 23/2014.

 Brief facts of the Appellant’s case are that, being the Complainant before the Ld. DCDRF, Malda, she being a middle-aged lady belonging to the lower middle-class strata, had been suffering pain on the right side of the lower abdomen. She had then visited a doctor attached with Chanchal Hospital, who had advised her to take some medicines and to get a U.S.G. done. After getting the U.S.G., done from Sonoscan Health Care (P) Ltd., on 14/08/2012, the report stated “right ovary is enlarged in size. An about 41mm cyst with low level echoes is seen in right ovary suggestive of hemorrhagic cyst”.

“Left ovary is normal size”.

“No fluid collection is seen in lower abdomen”.

Thereafter the Appellant/Complainant had visited the doctor, who had prescribed her medicines, stating that it was curable, as it was in the early stage. After taking the medicines also the Appellant/Complainant, felt pain in her right lower abdomen. She then consulted with another doctor and as per his directions, had to undergo another U.S.G., of her lower abdomen, from the Polyclinic of Respondent No.4/O.P.No.3&4. The report of the same day on 02.05.13 was, “right: normal in size (3.38 cm x 1.85 cm). Shape and outlines. Left: Enlarged (5.36 cm x 3.97 cm) with multiseptated echo genie cystic in appearance suggestive of endometrioma or functional cyst”. As the report was contradictory to the earlier report, the Appellant/Complainant then went to the doctor, Respondent No.1/O.P. No.1, for treatment on 22/05/13, to whom she reported all the facts including the two contradictory reports. She also reported that her pain in right side of lower abdomen, persisted and the Respondent No.1/O.P. No.1, doctor suggested for some medical examinations in his pathology viz. “Dishari Health Point (P) Ltd.”, on urgent basis, as the cyst was in very bad condition and which may cause danger to the life of the Appellant/Complainant. The Appellant/Complainant then underwent pathological examinations, after paying a bill of Rs.7,500/-. Ongoing through the reports, the Respondent No.1/O.P. No.1, stated that the cyst was in very bad condition and needed to be surgically operated and advised her to be admitted on 22/05/13, itself. But as the Appellant/Complainant was not prepared financially, she returned and was admitted on 25/05/13. She had also requested to the Respondent No.1/O.P. No.1 doctor, that she be operated by cutting her lower abdomen and not by micro-surgery. But the Respondent No.1/O.P. No.1 doctor, impressed upon her other relations to undergo for micro-surgery, as it was safe, for the patient and finally she was operated by micro-surgery. The Appellant/Complainant had paid the bill amounting to Rs.20,220/-, but even after the surgery, she felt pain on the right side of the lower abdomen. She then went to the RespondentNo.1/OPNo.1 doctor and stated her problems, regarding pain in her right side of the lower abdomen, the Respondent No./O.P.No.1 doctor, prescribed her some medicines, stating that the cyst was existing on the right side of the lower abdomen.

Finding no relief, she then visited the proforma Respondent No.5/proforma O.P. No. 6 doctor, who after hearing and examining her, suggested for another U.S.G. examination. She then went to proforma Respondent No.4 and proforma O.P. No.5 and got her U.S.G. done on 02/09/13. The report stated that “right ovary is bulky (measures 45mm x 33mm) and situated adjacent to the fundus of uterus with low level internal echoes”. Ongoing through the report, proforma Respondent No.5/proforma O.P. No.6, prescribed some medicines, but resulted in no relief. On 21/9/2013, again the Appellant/Complainant, visited the proforma Respondent No.5/proforma O.P. No.6 doctor and complained that she was suffering from the same problem and he suggested for some medical examinations which were precautionary steps for operation. Hence the Appellant/Complainant after suffering physically and mentally due to the negligent and illegal acts by the Respondent nos. 1, 2 & 3/O. Ps 1, 2, 3 & 4, lodged a complaint before the Ld. Lower Forum with necessary prayers.

The Respondent No.1/O.P. No.1 appeared to contest the case by filing written version wherein he has mainly denied the Appellant/Complainant’s case and simply stated that when she had visited him, she had disclosed only about the previous U.S.G. except U.S.G. dated 02/05/13 and had not disclosed about any previous treatments and tests. From the above report, it was found that the patient had been suffering from left ovarian endometrioma and she had undergone laparoscopy left sided selpingo-oophorectomy operation on 25/05/13 and discharged on 27/05/13 and the surgery had been successful one.

            Respondent No.2/O.P. No.2 had appeared to contest the case by filing written version wherein he has denied about the Appellant/Complainant’s and admitted that on 22/05/13, had done the tests diligently and there was no complaint of negligent act or deficiency of service on the part of the O.P.

Respondent no.4/O.P. No.3 & 4 also entered appearance by filing the written version wherein they had denied the Complainant’s case. It was also stated that though endometriosis is diagnosed by visual inspection of the pelvis during laparoscopy, ideally with histological confirmation; positive histology confirms the diagnosis, but negative histology does not exclude it. It is also important to mention herein that peritoneal endometriosis cannot be reliably visualized by imaging techniques compared laparoscopy, transvaginal ultrasound has no value in diagnosing peritoneal endometriosis, but is useful in making or excluding the diagnosis of an ovarian endometrioma. Either transvaginal or transrectal ultrasonography, can be used with high sensitivity and specificity for the diagnosis of ovarian endometrioma.

Proforma Respondent 4 & 5/Proforma O.P. 5 & 6 wherein they mainly stated that there was no negligence or deficiency in service on their part.

After going through the evidence and the documents filed on behalf of the Appellant/Complainant and ongoing through the evidence, filed by the Respondent/OPs and after hearing both the side the Ld. DCDRF, Malda passed the impugned order dismissing the complaint filed by the Appellant/Complainant.

Being aggrieved by the impugned order, the Appellant/Complaint filed the instant appeal on the ground that the Ld. DCDRF, Malda had erred in law and facts, while passing the impugned order.

                                                                         Decisions with Reasons

                In the midst of final hearing the Ld. Advocate for the Appellant/Complainant, after submitting resigned from this appeal. He had submitted that the Appellant/Complainant, had been coerced into surgery by laparoscopy and the Respondent No.1/ O.P. No.1, had performed the laparoscopy surgery on the left side of the ovary, even though there was no pain on the left side, but on the right side and committed negligence causing mental pain and harassment to the Appellant/Complainant. Moreover, the Respondent No.1/ O.P. No.1, had not attempted to evaluate the status of the ovary, at the pre surgery stage even though the Dishari Health Point, was well equipped to do so. That apart, the Respondent No.1/O.P. No.1, had stated during his cross examination that in ovariectomy there was no chance of re-generation and the expert evidence of O.P.W 2, also indicates the re-generation of the endometriotic cyst is 40% only and has also assailed the impugned judgement on the ground that it was not very clear and pressed for allowing the appeal.

Ld. Advocate for the Respondents No.1,2,4&5/OPs 1,2,4,5,6 had submitted, that the medical reports clearly showed that the surgical operation by Respondent/OP No.1 had been successful and therefore the Appellant/Complaint had filed this case merely for illegal gain. That apart, she had not stated about medical history, prior to her surgical intervention and therefore the Respondent doctor, had no hesitation in relying upon the last USG report. It is thereafter submitted that the instant appeal be dismissed.

Ld. Advocate for the Respondent No.3/O.P. No.3 has taken us through the different anomalies present in the appeal memo and also through various negligence and through medical literatures by various experts, to explain the term endometriosis and the different Latin terms as well as the facts of the case and has laid reliance in the judgements passed by the Hon’ble Supreme Court in Jacob Mathews Vs. State of Punjab & Anr. reported in (2005) SCC 1, in Dr. Suresh Gupta Vs. Government of NCT of Delhi & Anr. reported in (2004) SCC 422, in CP Sreekumar (Dr.) MS (Ortho.) Vs. S. Ramanujam reported in (2009) 7 SCC 130, in Kusum Sharma & Ors. Vs. Batra Hospital and Medical Research Center & Ors. in Civil Appeal No.1385 of 2001 and article on medical negligence: Bolam’s Brethren and the Bean-Counting by the Supreme Court.

From the facts, as well as the submissions, made at the Bar, it transpires that the Appellant/Complainant, had been suffering pain in her right lower abdomen and for which reasons she had visited a doctor in Chanchal Hospital, who had prescribed her some medicines and advised her to undergo U.S.G. and U.S.G. had been performed on 14/08/12, wherein the right ovary was found to be in enlarged condition with the left ovary being normal in size. But even after taking the medicine the pain did not subside and she visited another doctor, who again prescribed her another U.S.G. and the same was done on 05/02/13, wherein also the right ovary was found to be in enlarged condition and the left ovary was found to be in normal size. Thereafter, she consulted another doctor who again prescribed her for another U.S.G. and the said U.S.G. had been done on 02/05/13 and it was done from the Polyclinic of Respondent No.3/O.P. No.4, wherein contradictorily the right ovary was found to be normal, whereas the left ovary was found to be in enlarged condition. As the reports were contradictory, she then visited Respondent No.1/O.P. No.1 who after examining her on 22/05/13 and finding the cyst to be in very bad condition, had advised her for some medical examination for surgical intervention of the cyst. He then performed a laparoscopic surgery on the left ovary, relying on the U.S.G. report of 02/05/13. But the pain did not subside even after taking the medicines and the Appellant/Complainant, again went to proforma Respondent No.5/proforma O.P. No.6 and who also advised her U.S.G. and the report showed that the right ovary was bulky but the left was found to be normal.

Firstly, there are two discrepancies in the facts of this case, only the report dated 02/05/13 done from the Polyclinic of Respondent No.3/O.P. No.3 and 4, which has contradicted the earlier U.S.G. report done by proforma Respondent No.4/proforma O.P. No.5. There is only a gap of only three months which not only contradicts the report but surprisingly also reverses the earlier finding of the size of the right ovary, which was found to be in enlarged condition by the U.S.G. report dated 05/02/13. The expert evidence of OPW No.2, is also silent as to whether such occurrence could take place in the case of endometriotic cyst. His only opinion is that the endometriotic cyst could develop at any place at any point of time and removal doesn’t ensure that such cyst could not further re-generate. But there is no whisper as to whether such endometriotic cyst could heal by itself and become normal.  On the other hand, the U.S.G. report dated 02/9/13, which had been done after the laparoscopic surgery on the left side, also indicates that the right ovary is bulky, indicating and corroborating the earlier U.S.G. reports dated 14/8/12 and 05/2/13. Interestingly, the above reports had been issued by proforma Respondent No.4/proforma OP No.5. Therefore, the only contradicting U.S.G. report dated 02/5/13 had been issued by the Respondent No.3/OP 3 and 4. Therefore, the presumption is that the U.S.G. report of 02/5/13 of the Respondent No. 3 /O.P. No.3 and 4 appears to be incorrect and negligently done causing deficiency in service.

The second aspect is that, when the Respondent No.1/OP No.1 performed the surgery based on the report dated 02/05/13. In this regard, it is difficult to believe that the Appellant/Complainant who had all along suffered pain in her right lower abdomen would not complain of such pain, especially when the U.S.G. report dated 02/05/13 had been conflicting with the earlier U.S.G. reports dated 14/08/12 and 05/02/13, to the Respondent No.1/OP No.1, on 22/5/13. The contention of the Respondent No.1/OP No.1, that had such medical history and reports mentioned to him the same would have been reflected in the prescription dated 22/05/13. But in this regard, it can be stated that he had prescribed certain medical examinations, prior to the surgery, but such medical examination is also not reflected in the prescription dated 22/5/13.  Normally, such medical examinations, prescribed prior to surgery are found in the prescription itself. Therefore, from this finding it can be safely concluded, that the prescription dated 22/5/13, did not contain everything, that went on between the Appellant/Complainant and the Respondent No.1/OP No.1.

The Appellant/Complainant, had visited the Respondent No.1/OP No. 1 mainly on account of the conflicting U.S.G. report dated 02/5/13 with the earlier U.S.G. reports dated 14/8/12 and 05/2/13. Therefore, it is difficult to believe that the above anomaly would not have been pointed out to the Respondent No.1/OP No.1, on 22/5/13. Moreover, the surgery took place three days later, due to the financial inability of the Appellant/Complainant, and the Respondent No.1/OP No.1, had enough scope and time to conduct further U.S.G., in order to proceed with the surgery. But the Respondent No.1/OPNo.1, chose not to do so for some inexplicable reasons and ended up operating the left ovary, even though the Appellant/Complainant, had gone with the complaint of pain, in the right lower abdomen. This attitude of the Respondent No.1/OP No.1, resulted in the wrong surgery and can be described as deficiency in service causing both mental and physical pain to the Appellant/Complainant.

 Under the circumstance, the instant appeal succeeds and the impugned order needs to be set aside. Appellant/Complainant, is entitled to a compensation of Rs. 5,00,000/- (Rupees five lakhs) only for medical negligence causing pain and agony from Respondent No.1 &3/OP Nos.1 & 3. The Appellant/Complainant is also entitled to an award of Rs.50,000/- (Rupees fifty thousand) only as litigation cost and Rs.1,00,000/- (Rupees one lakh) only towards medical expenditure.

                                                                                         It is therefore

                                                                                             Ordered

That the instant appeal be and the same is allowed with costs of Rs.5,000/- (Rupees five thousand) only.

The Appellant/Complainant, is entitled to Rs.5,00,000/- (Rupees five lakhs) only   as compensation for mental and physical pain and Rs.1,00,000/- (Rupees one lakh) only towards medical expenditure and Rs.50,000/- (Rupees fifty thousand) only towards litigation cost.

The above amounts shall be paid by the Respondent No.1 & 3/OP Nos. 1&3 jointly and severally within 45 (forty five) days from the date of receiving this Order.

Copy of this Order be sent to the parties free of cost.

Copy of this Order be sent to the Ld. DCDRF, Malda for necessary compliance.