BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, FATEHABAD.
Complaint No.:314 of 2016.
Date of Instt.: 15.12.2016.
Date of Decision: 15.05.2018.
Smt. Sushila aged 26 years wife of Ramesh Kumar, resident of village Ratta Khera, Tehsil Tohana, District Fatehabad.
…Complainant.
Versus
1. Dr. Sanjay Bishnoi M.B.B.S., D.M.R.D., Radiologist back side of new bus stand Fatehabad.
2. Manager/Incharge The Oriental Insurance Company Limited 95/2, Gali No. 6, Than Singh Nagar Karol Bagh, New Delhi.
…Opposite Parties.
Complaint U/s 12 of the Consumer Protection Act, 1986
Before: Sh.Raghbir Singh, President.
Sh. M.K. Khurana, Member.
Present: Sh.Rajender Singh, counsel for the complainant.
Sh.U.K. Gera, counsel for the opposite party no. 1.
Sh. N.D. Mittal, counsel for opposite party no. 2.
ORDER:
The present complaint under Section 12 of Consumer Protection Act, 1986 has been filed by the complainant against the Opposite Party with the averments that she is resident of village Rattakhera Tehsil Ratia and is housewife. It is further submitted that previously her pregnancy was terminated. However, even after a lapse of 3 months the bleeding PV did not stop. Therefore, she visited Vardaan Maternity Hospital, Fatehabad for her check up. Dr. Meenu Chaudhary of the aforesaid hospital advised her for ultrasound. Accordingly, she approached to OP no. 1 for ultrasound of uterus on 7.4.2016. After doing ultrasound the OP no. 1 opined that there is fibroid in her uterus having area size of 30 mm x 30 mm in posterior wall. Thereafter, the complainant took treatment of the abovesaid problem, but she got no relief and the bleeding PV remained continued. Thereafter, she got medical treatment from Saini Nursing and Heart Care Centre, Bhuna. However, she got no relief.
2. It is further submitted that thereafter the complainant took medical treatment from Apex Hospital, Sirsa on 4.5.2016 and the concerned doctor did ultrasound and told the complainant that there is no fibroid in her uterus and opined that there is a piece of flash in the uterus and on giving medicines by the doctor the said piece was removed from the uterus and the bleeding stopped. Thereafter, there was a lot of improvement in her health.
3. It is further submitted that on account of bleeding PV a number of bottles of blood were given to her. All happened on account of negligence on the part of OP no. 1.. The complainant suffered financial loss, mental agony and physical harassment on account of negligent and carelessness on the part of OP no. 1 in doing the ultrasound. The complainant also sent a legal notice dated 8.11.2016 to the OP no. 1 for making a payment of Rs. 50,000/- but all in vain. The complainant further prayed that the OPs may be directed for making a payment of Rs. 50,000/- to her as compensation. Hence the present complaint.
4. On being served, OP no. 1 appeared through counsel and resisted the complaint by filing written statement wherein various preliminary objections with regard to concealment of facts, cause of action, maintainability etc. have been raised.
5. In reply on merits, it is submitted that as per record, the complainant had consulted Dr. Meenu Chaudhary on 7.4.2016 with the complaint of generalized body ache. Therefore, blood investigations were got done and on the same day per abdomen ultrasound was got conducted by the OP no. 1. She was not referred to OP no. 1 by any doctor and came to the complainant at her own for pregnancy and ultrasound. Form F was filled and the abovesaid form is filled only in case of pregnancy, ultra sound. It is very well mentioned in the ultrasound report (1) “no evidence of pregnancy” and (2) fibroid uterus. The complainant had specifically mentioned in the report to co-relate the findings clinically.
6. The OP has further mentioned that the findings of 30mm x 30 mm fibroid and retained products of conception of the same size appear as the same/similar and this fact is very well written in the books of medical science. Therefore, this is the only reason to mention in the report to co-relate clinically and the report was given accordingly. It is further submitted that sometimes this type of case cannot be diagnosed on TVS ultrasound/examination and Sonohysterography is required, which is mentioned in the books of medical science. It is also important to mention here that there is no treatment of fibroid except the surgery.
7. It is further submitted that as per record, on 8.4.2016 the complainant went to Kansal Multispeciality Hospital, Hisar with the history of irregular bleeding and history of abortion one month back and she was advised ultrasound for uterus and overies but she did not go for the same meaning thereby the complainant was having bleeding and was not serious as mentioned in the complaint. Thereafter, the complainant went to Saini Hospital, Bhuna on 9.4.2016. Thereafter, on 4.5.2016 she visited Apex Hospital, Sirsa and DNC was done on that day and two bottles of blood were given only because of more bleeding due to surgery or after DNC. There was no fetus but was a piece of retained products of conception for which the DNC was done. As per report of Vishal Ultrasound dated 4.5.2016, she was advised for TVS. As per the abovesaid report, findings of Heteroechoic area of size 49x 34 mm in fundal region and appeared to be in continuation with the endometrial cavity. The doctor of the Apex Hospital also advised to co-relate clinically which clearly shows that the radiologist was not sure regarding his report. It is also important that TVS Ultrasound is a higher investigation than per abdominal ultrasound. Even than they advised to co-relate clinically. It is further submitted that the findings of fibroid and RPOC are the same even in the said sonography report.
8. It is further submitted that the OP performed the said test in accordance with the set medical standards and thus the present complaint filed by the complainant is without any merits and the same is liable to be dismissed.
9. On 17.2.2017 OP no. 1 filed an application for impleadment of insurance company as one of the respondent in the present case. The complainant submitted that he has no objection in case the above said application is allowed. The said application was allowed vide order dated 3.3.2017 and OP no. 2 was impleaded as a party.
10. On being served OP no. 2 filed written statement wherein various preliminary objections with regard to maintainability, cause of action, concealment of correct facts etc. have been raised. In reply on merits, it is submitted that no expert opinion from some reputed doctor has been produced/obtained before filing the present complaint. It is further submitted that OP no. 1 who is a qualified person well equipped with necessary machines to do the test for which he was approached. It is further submitted that the OP no. 1 has not done any treatment. He only performed the required test and gave opinion in writing. There is no medical negligence on the part of OP no. 1 and as such the present complaint is without any merits and the same is liable to be dismissed.
11. The learned counsel for the complainant tendered affidavit of the complainant in evidence as Annexure P-1 and the documents as Annexure P-2 to P-14. Dr. Anju Saini BAMS of Saini Nursing Home also tendered an affidavit Exhibit CW1/A in evidence in support of the case of the complainant. The complainant also examined Dr. Manisha Mehta of Apex Hospital, Sirsa as a witness. On the other hand, OP no. 1 tendered in evidence his affidavit as Exhibit RW2/A. The OP no. 1 also tendered in evidence the documents as Annexure R-1 to R-3 and closed the evidence. Shri J.C. Lalar, Senior Divisional Manager tendered in evidence his affidavit as RW1/A on behalf of OP no. 2. The OP no. 2 also tendered in evidence documents as Exhibit R-1 and closed the evidence.
12. The learned counsel for the complainant in his arguments reiterated the averments made in the complaint and further contended that the report dated 7.4.2016 (Annexure P-4) given by the OP no. 1 that there is fibroid of 30mm x 30 mm in the uterus of the complainant was incorrect. The same is evident from the report dated 4.5.2016 submitted by Dr. Vishal Garg wherein, it is reported that there is RPOC in endometrial cavity and no fibroid in uterus was diagnosed in the report dated 4.5.2016. It is further contended by the learned counsel that on account of incorrect report the complainant has suffered financial loss, mental agony, bodily pain and physical harassment. It is further contended by the learned counsel that in view of the Transvaginal Sonography report dated 4.5.2016, it is proved beyond any doubt that the OP no. 1 had given an incorrect report dated 7.4.2016 and the same amounts to medical negligence on the part of OP no. 1. The learned counsel also contended that the OP no. 1 is not a qualified radiologist and even on the ultrasound report he has not mentioned his registration number issued by Medical Counsil of India. The same is in violation of Rule 1.4 of Rules 2002 of Indian Medical Council. The learned counsel for the complainant in support of his contention has placed reliance on the judgment rendered by Supreme Court of India on 14.5.2009 in case titled as Nizam Institute of Medical Sciences Vs. Prasanth S. Dhananka and others and cited as 2009 (3) RCR (Criminal) Page 124, wherein the Hon’ble Apex Court has laid down that in a case involving the medical negligence once the initial burden has been discharged by the complainant by making out a case of negligence on the part of the hospital or to the attending doctor concerned the onus then shifts on to the hospital to satisfy the Court that there was no lack of care of diligence.
13. The learned counsel for the Ops rebutted the arguments advanced by learned counsel for the complainant and further contended that the OP no. 1 had performed test in accordance with the set medical standards and there is no medical negligence on the part of OP no. 1 in giving the report. The learned counsel also contended that there is no expert opinion or opinion of any medical board placed on record by the complainant to prove that there is medical negligence on the part of OP no. 1 in giving report dated 7.4.2016. It is also the contention of the learned counsel for the complainant that presence of fibroid of the size of 30 mm x 30 mm in the uterus and retained products of conception of the same size in the uterus shall appear same/similar. Therefore, the OP no. 1 had mentioned in the report to co-relate the findings clinically. The learned counsel further submitted that the present complaint is without any merits and the same is liable to be dismissed.
14. We have duly considered the arguments advanced by learned counsel for the parties and have also perused the entire material placed on record. It is the case of the complainant that her pregnancy was terminated, but after a lapse of 3 months bleeding PV did not stop. Therefore, ultrasound of her lower abdomen was conducted by OP no. 1 on 7.4.2016 and after conducting the ultrasound OP no. 1 opined/reported that there is fibroid of the size of 30 mm x 30 mm in her uterus. On the basis of abovesaid report, the complainant took treatment of the fibroid. However, she got no relief and the bleeding PV remained continued and on account of excess bleeding she was given two bottles of blood. It is further the case of complainant that the abovesaid ultrasound report dated 7.4.2016 of the OP no. 1 was not correct and in fact there was no fibroid in her uterus. The same is evident from the Transvaginal Sonogarphy conducted on 4.5.2016 by Dr. Vishal Garg of Apex Hospital, Sirsa. As per report dated 4.5.2016 there was retained product of conception (RPOC) in the uterus and not fibroid. Thereafter, the RPOC was removed from the uterus and the bleeding PVC stopped and there was a lot of improvement in her health. It is further the case of the complainant that on account of incorrect report dated 7.4.2016 given by OP no. 1 the complainant had suffered financial loss, bodily pain, mental agony and physical harassment.
15. It is also further the case of the complainant that the OP no. 1 is not a qualified radiologist and he has not displayed his registration number issued by the Indian Medical Council on the ultrasound report. The same is in violation of Rule 1.4 of Indian Medical Council Rules of 2002. To prove its case the complainant tendered in evidence her affidavit and also examined Dr. Manisha Mehta of Apex Hospital, Sirsa. Dr. Anju Saini, BAMS of Saini Nursing Home, Bhuna also tendered in evidence her affidavit in support of the case of the complainant.
16. On the other hand, it is the case of the Ops that the OP no. 1 has not committed any medical negligence or deficiency in rendering service and performed the ultrasound in accordance with the set medical standards. Moreover, the complainant has not produced on record any expert opinion that there was any lapse or medical negligence on the part of OP no. 1 in conducting the test. It is also the case of the Ops that the presence of 30 mm x 30 mm fibroid and retained products of conception in the uterus of the same size appear as the same/similar and this fact is very well mentioned in the literature of Medical Science. That is why it was mentioned by the OP no. 1 in the report dated 7.4.2016 to co-relate the findings clinically.
17. After hearing the arguments of the parties and examining the pleading and the documents placed on record, we are of the considered opinion that the complainant has not been able to prove any deficiency/medical negligence on the part of Ops in the present case. Merely from the fact that the ultrasound report given by the OP no. 1 was not correct, it cannot be concluded that there was medical negligence on the part of OP no. 1. The complainant has not produced any opinion of expert or opinion of medical board that it is a case of medical negligence on the part of OP no. 1 in giving the report dated 7.4.2016. Dr. Manish Mehta of Apex Hospital, Sirsa examined by the complainant as her witness nowhere in her statement has submitted that there is medical negligence on the part of OP no. 1 in giving report dated 7.4.2016. Even in the cross-examination Dr. Manish Mehta has stated that the report Annexure P-4 dated 7.4.2016 seems to be correct as no radical/serious findings has been shown in the report. The witness in cross-examination further stated that the finding under the head uterus in this report shows presence of some very small size space occupying lesion. This could be fibroid or not a fibroid. It is further submitted by witness that no ultrasound report is complete and final in itself. It requires clinical judgment by the treating doctor and in report Annexure P-4 the concerned doctor has written “please co-relate clinically”. Therefore, from the above statement of Dr. Manish Mehta, it is revealed that she has not supported the case of the complainant. There is no other expert opinion or opinion of any medical board placed on record by the complainant that there is medical negligence on the part of OP no. 1 in submitting the ultrasound report dated 7.4.2016.
18. Consumer Forums are not experts in medical science and, therefore, they should not substitute their own views over that of specialists. Reference in this regard may be placed on the case titled as Martin F.D’Souza Versus Mohd. Ishfaq, 2009 (1) Supreme Court Cases (Criminal), 958. Further Medical professionals are not to be unnecessarily harassed or humiliated so that they can perform their duties without fear and apprehension. Malicious prosecution against medical professors/ hospitals for extracting uncalled for compensation is not maintainable. Reference may be made in case titled as Kusum Sharma Versus Batra Hospital and Medical Research Centre and Ors., AIR 2010 Supreme Court 1050. In State of Punjab Vs. Shiv Ram & Ors. IV (2005) CPJ 14 (SC), the Hon’ble Supreme Court has held that “A doctor, in essence, needs to be inventive and has to take snap decisions especially in the course of performing surgery when some unexpected problems crop up or complication sets in. If the medical profession, as a whole, is hemmed in by threat of action, criminal and civil, the consequence will be loss to the patients. No doctor would take a risk, a justifiable risk in the circumstances of a given case, and try to save his patient from a complicated disease or in the face of an unexpected problem that confronts him during the treatment or the surgery.
19. The other contention raised by the learned counsel for the complainant that the OP no. 1 is not a qualified doctor and is not tenable. From perusal of Annexure R-1 and Annexure R-3, it is evident that OP no. 1 is qualified radiologist and he has been issued a certificate of registration bearing no. HN-3710 by the Haryana Medical Council, Chandigarh.
20. Thus, as a sequel of our above discussion, the complainant has failed to prove any deficiency on the part of Ops in rendering service to her. Hence the present complaint is hereby dismissed being devoid of merits. Copy of this order be supplied to the parties free of costs. File be consigned to record room after due compliance.
Announced in open Forum. Dated:15.05.2018
(Raghbir Singh) President
(M.K. Khurana) District Consumer Disputes
Member Redressal Forum, Fatehabad.
