Haryana

Kaithal

CC/198/2022

LEENA GROVER - Complainant(s)

Versus

DR. SANJAY BANSAL SANJAY DIAGNOSTIC CENTRE AMBALA ROAD KAITHAL - Opp.Party(s)

In Person

14 May 2024

ORDER

               

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KAITHAL

 

                                                               Complaint Case No. 198 of 2022.

                                                               Date of institution:   10.08.2022.

                                                               Date of decision:      14.05.2024.

 

Leena Grover w/o Shri Sandeep Grover, r/o H.No.316-B, Partap Gate, Kaithal, District Kaithal.

                                                                                      …Complainant.

                                                    Versus

 

1. Dr. Sanjay Bansal, the owner of Sanjay Diagnostic Centre, Pehowa Chowk, Ambala Road, Kaithal.
2. The ICICI Lombard General Insurance Company Limited, having address at ICICI Lombard House, 414, Veer Savarkar Marg, near Siddhivanayak Temple, Prabhadevi, Mumbai-400025, through its Branch Manager.

 

...Opposite Parties.

 

          Complaint under Section 35 of the Consumer Protection Act

 

CORAM:   SMT. NEELAM KASHYAP, PRESIDENT.

                   SMT. SUMAN RANA, MEMBER.

                   SHRI SUNIL MOHAN TRIKHA, MEMBER.

 

Present:       Shri Sandeep Grover, husband of complainant along with

                   Shri Vijay Kumar Kukreja, relative of complainant are in person             being           Authorized Representatives of complainant.

                   Shri S.V. Ravish, Advocate for Opposite Party No.1.

                   Shri A.K. Khurania, Advocate for Opposite Party No.2.

                  

ORDER  -  NEELAM KASHYAP, PRESIDENT

          Complainant has filed this complaint under Section 12 of Consumer Protection Act, 1986, against the OPs.

2.                It is alleged in the complaint by the complainant that on 19.05.2022, she suffered from abdominal pain and consulted with Dr. A.K. Mittal Hospital, Ambala Road, Kaithal and on his advise, she got her Ultrasound scanning from OP No.1 after paying Rs.700/- and got the report. That the report of stone in gall bladder was totally negative, in other words, OP No.1 did not reported any stone in gall bladder in his report. That on the basis of that report, Dr. A.K. Mittal started her treatment, which was wrong path, due to wrong ultrasound report, given by OP No.1, and she could not recover for approximate six weeks and her situation kept getting worse. That after that, Dr. A.K. Mittal, advised to go through Ultrasound scanning again from Dr. Dimple Mittal, Mahadev Diagnostics & Multispecialities Centre, Karnal Road, Kaithal. That on 02.07.2022, after gone through her Ultra Scanning report, he finally stated in her report 15.3 mm stone in gall bladder and then to clear her doubt, she again got conducted her Ultrasound scanning from Modern Diagnostic, Park Road, Kaithal, who also showed 15mm stone (calculus) in her gall bladder, in his report, which is clear cut deficiency in service, on the part of OP No.1. That she also complained on C.M. window, upon which, directions were given to Civil Surgeon, Kaithal to enquire about the matter, who were not the specialists of Sonological method and they submitted their report in favour of OP No.1. That the above act and conduct of OPs, of giving wrong Ultrasound report, amounts to clear cut deficiency in service, on the part of OPs, due to which, she faced severe pain for a long time, side effects of wrong medicines and mental agony, constraining her, to file the present complaint, against the OPs, before this Commission.

3.                Upon notice of complaint, OPs appeared before this Commission and filed their respective written statements

4.                OP No.1, in its written statement stated that the complainant was brought to OP No.1 at about 07:00 PM on 19.05.2022, with the complaint of left side pain abdomen along with prescription from Dr. A.K. Mittal with clinical diagnosis of left renal colic. That the ultra sonography was done by OP No.1 (who is MD Radio-Diagnosis) and found “left lower ureteric calculus 5mm with mild Hydronephiosis left kidney, Left Renal Calculi (3) Right Renal Calculus (1)”. That OP No.1 performed USG diligently and observed left lower ureteric calculus and renal calculi and reported the same in his report. That it is relevant to mention here that an Ultrasound is an imaging test that uses sound waves to create a picture (also known as Sonogram) of organs, tissues and other structures inside the body. Fat and air are main factors affecting USG quality. That the complainant was very obsess and it was difficult to visualize the abdominal organs due to excessive fat and at that time, the complainant was also not fasting. That the complainant was prescribed treatment by Dr. A.K. Mittal on 19.05.2022 for 3 days only and the complainant after getting USG done by OP No.1 on 19.5.2022 did not come to OP No.1 for review. The complainant also did not go to her treating Dr. A.K. Mittal after she prescribed treatment for 3 days in between 19.5.2022 and 02.07.2022 (44 days). That during this period, complainant was not admitted to any clinic or hospital or undergone any laboratory tests or operative procedures. That the complainant visited Dr. A.K. Mittal on 02.07.2022 with a fresh OPD Slip with the complaint of right side pain abdomen, who made clinical diagnosis of chronic-chdecystitis and complainant got USG done by Dr. Dimple Mittal of Mahadev Diagnostics on 02.07.2022 and also from Dr. Nalin Sharma, Modern Diagnostics, Park Road, Kaithal on 03.07.2022. That as per both USG reports, there are bilateral renal stones and gall bladder stone, as such, in all three USG reports, there are bilateral renal stones for which Dr. A.K. Mittal treated the patient and no harm or side effect was suffered, by the complainant, by taking the said treatment. That OP No.1 provided the services to the complainant diligently, prudently with due care and skill and as per accepted standards of practice. That there was no negligence and deficiency on the part of OP No.1 and prayed for dismissal the present complaint.

5.                OP No.2, in its written statement stated that till the time the deficiency in service of doctor is not proven, the liability of insurance company will not come. That if the deficiency in service of doctor is not proven, then OP No.2 insurance company will assess the claim as per the policy terms and conditions. OP No.1 was insured with ICICI Lombard Gen. Ins. Co. vide policy No.4021/199149201/00/000 under professional indemnity any one accident limit for a sum of Rs.20,00,000/- and aggregate limit for one year for Rs.20,00,000/- during policy period w.e.f. 20.08.2021 to 19.08.2022 retroactive date 20.08.2019.

6.                To prove the case, complainant tendered into evidence affidavit Ex.CW1/A alongwith documents Annexure-C1 to Annexure-C2.

7.                On the other hand, OP No.1 tendered into evidence affidavit Ex.RW1/A and documents Annexure R-1 to R-10. OP No.2 tendered documents Annexure R11 to R12.

8.                We have heard the husband as well as relative of complainant and learned counsel for the parties and perused the record carefully.

9.                Husband of complainant has argued that on 19.05.2022, her wife (complainant) suffered from abdominal pain and went to consult with Dr. A.K. Mittal Hospital, Ambala Road, Kaithal and on his advise, got her Ultrasound scanning from OP No.1 after paying Rs.700/- in this regard and got the report, in which, OP No.1 did not reported any stone in gall bladder. He further argued that on the basis of that report, Dr. A.K. Mittal started treatment of her wife, which was wrong path, due to wrong ultrasound report, given by OP No.1 and she could not recover for approximate six weeks and her situation kept getting worse. He further argued that after that, the complainant consulted with Dr. A.K. Mittal and on his advise, she got conducted her Ultrasound scanning, firstly from Dr. Dimple Mittal, Mahadev Diagnostics and Multispecialities Centre, Karnal Road, Kaithal and then from Modern Diagnostic, Park Road, Kaithal and in both reports, 15 mm stone in gall bladder was found, which is clear cut deficiency in service, on the part of OP No.1. He further argued that the complainant also complained on C.M. window, upon which, directions were given to Civil Surgeon, Kaithal to enquire about the matter, who were not the specialists of Sonological method and they submitted their report in favour of OP No.1. He further argued that the above act and conduct of OPs, of giving wrong Ultrasound report, amounts to clear cut deficiency in service, on the part of OPs.

10.              On the other hand, learned counsel for OP No.1 has argued that on 19.05.2022, the complainant was brought to OP No.1 at about 07:00 PM with the complaint of left side pain abdomen along with prescription from Dr. A.K. Mittal with clinical diagnosis of left renal colic, upon which, the ultra sonography was done by OP No. and found “left lower ureteric calculus 5mm with mild Hydronephiosis left kidney, Left Renal Calculi (3) Right Renal Calculus (1)”. He further argued that an Ultrasound is an imaging test that uses sound waves to create a picture (also known as Sonogram) of organs, tissues and other structures inside the body. Fat and air are main factors affecting USG quality. He further argued that the complainant was very obsessed and it was difficult to visualize the abdominal organs due to excessive fat and at that time, the complainant was also not fasting. He further argued that the complainant was prescribed treatment by Dr. A.K. Mittal on 19.05.2022 for 3 days only and the complainant after getting USG done by OP No.1 on 19.5.2022 did not come to OP No.1 for review. He further argued that the complainant also did not go to her treating Dr. A.K. Mittal after she prescribed treatment for 3 days in between 19.5.2022 and 02.07.2022 (44 days). He further argued that during this period, complainant was not admitted to any clinic or hospital or undergone any laboratory tests or operative procedures. He further argued that the complainant visited Dr. A.K. Mittal on 02.07.2022 with a fresh OPD Slip with the complaint of right side pain abdomen, who made clinical diagnosis of chronic-chdecystitis and complainant got USG done by Dr. Dimple Mittal of Mahadev Diagnostics on 02.07.2022 and also from Dr. Nalin Sharma, Modern Diagnostics, Park Road, Kaithal on 03.07.2022. He further argued that as per both USG reports, there are bilateral renal stones and gall bladder stone, as such, in all three USG reports, there are bilateral renal stones for which Dr. A.K. Mittal treated the patient and no harm or side effect was suffered by the complainant by taking the said treatment. He further argued that OP No.1 provided the services to the complainant diligently, prudently with due care and skill and as per accepted standards of practice. He further argued that there was no negligence and deficiency on the part of OP No.1 and prayed for dismissal the present complaint. In order to support his above contentions, he placed reliance upon case laws titled Agarwal Orthopedic Hospital & Anr. Vs. Sandeep Arora & Anr., First Appeal No.1323 of 2018 (Against the Order dated 09.05.2018 in Complaint No.23/2002 of the State Commission, Utter Pradesh) and Rama Sankar Jaiswal Vs. Vasan Eye Care Hospital & Ors., Revision Petition No.2095 of 2017 (Against the Order dated 24.4.2017 in Appeal No.559 of 2015 of the State Commission West Bengal).

11.              Learned counsel for OP No.2 has argued that OP No.1 was insured with ICICI Lombard Gen. Ins. Co. vide policy No.4021/199149201/00/000 under professional indemnity any one accident limit for a sum of Rs.20,00,000/- and aggregate limit for one year for Rs.20,00,000/- during policy period w.e.f. 20.08.2021 to 19.08.2022 retroactive date 20.08.2019. He further argued that till the time the deficiency in service of doctor is not proven, the liability of insurance company will not come. He further argued that if the deficiency in service of doctor is not proven, then OP No.2 insurance company will assess the claim as per the policy terms and conditions.

12.              As per complainant, on 19.05.2022, she suffered from abdominal pain and consulted with Dr. A.K. Mittal, Mittal Surgical & Maternity Hospital, Kaithal, who advised for USG (Ultrasound Sonography), as is evident from OPD Prescription Slip Mark-A, upon which, the complainant got conducted his USG (Whole Abdomen) from Sanjay Diagnostic Centre, Pehowa Chowk, Ambala Road, Kaithal, on the same day, after paying Rs.700/- in this regard which was also  admitted, by OP No.1 in its reply, vide report dated    19.5.2022 Mark-B, wherein, it is observed that “Left lower ureteric calculus 5mm with mild Hydronephrosis left kidney, Left Renal Calculi (3) Right Renal Calculus (1)”. On 02.07.2022, the complainant again consulted with Dr. A.K. Mittal of Mittal Surgical & Maternity Hospital, Kaithal, who again advised for USG (Whole Abdomen), vide report Mark-C, upon which, she got conducted his two USG (Whole Abdomen) tests, firstly from Mahadev Diagnostics & Multispecialities, Kaithal on 02.07.2022 and then from Modern diagnostics, Park Road, Kaithal on 03.07.2022, vide reports Mark-D and Mark-E respectively. In report Mark-D, it is specifically mentioned that “There is seen an echogenic mass with DAS of size measuring 15.3 mm is seen in the neck region of gall bladder”. Further, in report Mark-E, there is mentioned that “About 15.0 mm calculus seen impacted in the neck region. Sludge also seen in the cavity”.

13.              Husband of complainant has alleged that in the report Mark-B, issued by Sanjay Diagnostic Centre, said doctor found 5 mm stone in left kidney, but stone in gall bladder was totally negative, in other words, OP No.1 did not report any stone in gall bladder in his report, whereas, in other two reports Mark-D and Mark-E, issued by two different centre, there is found 15.3 mm stone in gall bladder. He further alleged that on the basis of that wrong report Mark-B, Dr. A.K. Mittal started treatment of complainant, which was wrong path, due to wrong ultrasound report, given by OP No.1, due to that, the complainant could not recover for approximate six weeks and her situation kept getting worse, which is clear cut deficiency in service as well as unfair trade practice, on the part of OP No.1 Dr. Sanjay Bansal.

14.              Contrary to it, learned counsel for OP No.1 has admitted the fact of USG of Whole Abdomen of complainant, done by from OP No.1 as well as report Mark-B. He firstly contended that Ultrasonography is best diagnostic test to confirm gallbladder disease and the same is 90-95% accurate in detecting gallstones and in this regard drawn attention of this Commission towards document Annexure R-6 (page 3). However, it is admitted fact that OP No.1 had conducted USG of Whole Abdomen of complainant with same method i.e. Ultrasonography and mentioned in his report Mark-B that there is no stone in gallbladder of complainant, but as per reports Mark-D and Mark-E, issued by two different centre, they found more than 15 mm size of stone in gallbladder of complainant. Since as per own document of OP No.1, this method i.e. Ultrasonography is 90% to 95% accurate in detecting gallstones, then how OP No.1 did not found the stone of huge size of 15 mm in gallbladder of complainant while conducting his USG of Whole Abdomen by using the same method i.e. Ultrasonography, meaning thereby, OP No.1 did not conduct the USG of complainant accurately with due care and proper diligence.

15.              Learned counsel for OP No.1 has further contended that the complainant was very obsessed and it was difficult to visualize the abdominal organs due to excessive fat and at that time, the complainant was also not fasting, but this contentions of OP No.1 has also no force, because all the times when complainant got conducted these three tests, her weight was remained the same. Moreover, it is not the case of OP No.1 that on 19.05.2022, complainant got conducted the said test from him, at that time, she was very healthy and on 02.07.2022/03.07.2022, when she got conducted the two other tests, from two different centre, at that time, she loose her weight and became slim. Moreover, OP No.1 has nowhere mentioned in his report Mark-B that at the time of testing, complainant was very obsessed.

16.               Learned counsel for OP No.1 has further contended that the complainant got conducted USG test on 19.05.2022 and she got conducted the same from two different center on 02.07.2022 and 03.07.2022 i.e. after more than 44 days and there is every possibility that at that time, there was no stone in gallbladder of complainant on 19.05.2022 and it might have formed after 4 weeks of time i.e. on 02.07.2022 and drawn attention of this Commission towards document Annexure R-8, in this regard. But contrary to it, husband of  complainant has submitted that the above contentions of OP No.1 that new stone in gallbladder was formed in 4 weeks has no force, because generally the stone of huge size of 15 mm generate in 4-5 years and produced document as Mark-G in this regard, wherein, one they have consulted in this regard from Dr. Ranjan Kumar of World Laparoscopy Hospital, wherein, he suggested that the stone in gallbladder generate in 4-5 years. Furthermore, he drawn attention of this Commission towards Ultrasound for Whole Abdomen report of complainant Leena, issued by Modern Diagnostics, which is of dated 07.02.2014 Mark-F, wherein, 15.0 mm of stone was found in gallbladder and 4.6 mm in right kidney. From this document Mark-F, it is evident that the complainant was having 15 mm stone in his gallbladder, since the year 2014 and the same was not created in 4 weeks, as is alleged by OP No.1. Hence, in view of above facts, we found no force in the above contentions of OP No.1, hence rejected.  

17.              Learned counsel for OP No.1 has contended that on the complaint given by the complainant on the CM Window, a Board of Doctors has conducted the thorough investigation of the matter in question and given their report, upon which, CM Window Action Taken Report (ATR) Final Reply was prepared favouring OP No.1 Annexure R-5, vide which, it is clearly observed that “risk of making diagnostic errors remains and there can be false-positive and false-negative results”. But it is pertinent to mention here that it is settled law that Court is not bound to accept the report of the Medical Board, when there exists evidence, on the file to show medical negligence, on the part of a doctor, as happened in this case.  

18.              Husband of complainant has submitted that after seeing the wrong USG report of OP No.1 Mark-B, the Dr. AK Mittal has started the treatment of her wife and given three days medicines to her vide OPD Prescription Slip Mark-A, but when complainant got conducted another USG test on 02.07.2022 from Mahadev Diagnostics & Multispecialities Centre, Karnal Road, Kaithal and after seeing its report Mark-D, the doctor concerned had totally changed the treatment of complainant as is evident from OPD Prescription Slip Mark-C. He further submitted that due to wrong test report, given by OP No.1, the doctor concerned also gave wrong treatment , due to that, her wife could not recover for approximate six weeks and her situation kept getting worse.

19.              So, keeping in view the above facts and circumstances of the case as well as the case law, referred to above, it is coming out that the complainant was having a huge size i.e. 15 mm size stone, in her gallbladder, since the year 2014, due to which, she suffered pain in her abdomen and on the advise of her doctor concerned, she performed USG (whole abdomen) from OP No.1. However, OP No.1 had given wrong report, wherein, he had not shown/found any stone in the gallbladder of the complainant, due to which, according to that report, the doctor concerned had given wrong treatment, to the complainant, for a long time and when the condition of complainant became worse, then on the advise of said doctor, she performed the said USG test from two other different centres on different dates, wherein, a stone of huge size of about 15 mm was found in her gallbladder. Meaning thereby, OP No.1 doctor had not performed his duties diligently, prudently as well as with due care and skill, because if OP No.1 had given correct report about stone to the complainant, then she (complainant) might have taken the treatment for the same timely and could be saved from suffering huge pain, physical harassment as well as mental agony. However, it is pertinent to mention here that OP No.1 had reported that there is no stone in the gallbladder of complainant, but actually she was having huge sized 15 mm stone in her gallbladder and if a gallstones lodge in a bile duct and cause a blockage, it eventually results in severe life-threatening complications, such as, bile duct inflammation and infection, pancreatitis or cholecystitis (an inflammation of gallbladder). In addition, if gallstones left untreated, it might increase risk of “gallbladder cancer” vide document Mark-Z. So, in view of these facts, the above act and conduct of OP No.1, not amounts to gross deficiency in service, but also an act of unfair trade practice, on the part of OP No.1 doctor, due to that, complainant might have suffered from gallbladder cancer and might have lost her life, for which, the complainant is entitled to a reasonable compensation, from OP No.1 and in our view, if we direct OP No.1 to pay in lump-sum compensation amount of Rs.50,000/-, to the complainant, it will suffice the purpose and ends of justice will meet.

20.              However, OP No.2 has admitted in his reply that OP No.1 was insured with it (OP No.2) for the period from 20.08.2021 to 19.08.2022 for Rs.20 lacs, meaning thereby, at the day of incident in question i.e. 19.05.2022, when OP No.1 issued USG test report Mark-B, to the complainant, OP No.1 doctor was duly insured with OP No.2. In this regard, clause No.2 Scope of Cover of policy document Annexure R-12 is relevant, which reads as under:-

2.       Scope of Cover

          The Company hereby agrees, subject to the terms, conditions and exclusions herein contained of otherwise expressed herein, to indemnify Insured against the legal liability to pay compensation including defence costs, fees and expenses anywhere in India in accordance with Indian Law.         

21.              As discussed above, since OP No.1, for his deficiency in service as well as unfair trade practice, is compensated with compensation amount of Rs.50,000/-, and as per above Clause 2 of policy document Annexure R-12, it is crystal clear that OP No.2 insurance company, being insurer of OP No.1, during the period in question, is bound to pay the compensation amount, if any on behalf of OP No.1. Therefore, in the case in hand, OP No.2, being insurer of OP No.1, is liable to pay the said compensation amount of Rs.50,000/-, to the complainant. The case laws, produced by the OP No.1 are not disputed, but the same are not applicable to the case in hand, being rested on different footings.

22.              Thus as a sequel of above discussion, we accept the present complaint against OP No.1 and direct OP No.2, being insurer of OP No.1, to pay in lump-sum compensation amount of Rs.50,000/-, to the complainant, within a period of 45 days, from today, failing which, the award amount shall carry interest @ 6% p.a., from the date of filing of present complaint, till its realization.

23.              In default of compliance of this order, proceedings shall be initiated under Section 72 of Consumer Protection Act, 2019, as non-compliance of Court order shall be punishable with imprisonment for a term which shall not be less than one month, but which may extend to three years, or with fine, which shall not be less than twenty five thousand rupees, but which may extend to one lakh rupees, or with both. A copy of this order be sent to the parties free of cost. File be consigned to the records, after due compliance.     

Announced in open Commission:

Dt.:14.05.2024.

                                                                                      (Neelam Kashyap)

                                                                                      President.

 

(Sunil Mohan Trikha).             (Suman Rana).              

Member.                                  Member.

 

 

 

 

 

Typed by: Sham Kalra, SSS.