District Consumer Disputes Redressal Forum
Dakshin Dinajpur, W. Bengal
(Old Sub-Jail Municipal Market Complex, 2nd Floor, Balurghat Dakshin Dinajpur Pin - 733101)
Telefax: (03522)-270013
Present
Shri Sambhunath Chatterjee - President
Miss. Swapna Saha - Member
Consumer Complaint No. 48/2010
Biswajit Bhattacharjee
S/o Nalani Kanta Bhattacharjee
Sub Inspector of Police at Banshihari Police Station
Dist. Dakshin Dinajpur …………………Complainant(s)
V-E-R-S-U-S
1. Dr. Mrs. Subhra Aditya
MBBS, MD, Dip. In Child Health,
Permanent resident of Block – LB, Flat No. 10,
193, Andul Road, PO: D.S. Lane,
Dist. Howrah, W.B.
2. Prop. of Ghosh Medicqal Hall,
C.R. Pally, Shib Bari Road, Gangarampur
Dist. Dakshin Dinajpur
3. Prop. of Sonoscan Diagnostic Centre,
Gangarampur Branch,
PO & PS: Gangarampur
Dist. Dakshin Dinajpur
4. Sisir Kr. Ghosh
Prop. of Sonoscan Centre,
C.R. Pally, Shibbari Road, Gangarampur
Dist.: Dakshin Dinajpur. …………………Opposite Party / Parties
Ld. Advocate(s):
For complainant ……………… - Shri Biswarup Chatterjee &
- Shri Vishal Bhagat
For OP No. 1 ……………… - Shri Bidyut Kr. Roy
For OP Nos. 2, 3 & 4 ……………… - Shri Santanu Dey &
- Shri Ritabrata Chakraborty
Date of Filing : 28.12.2010
Date of Disposal : 31.08.2015
Contd…P/2
Judgment & Order dt. 31.08.2015
Fact of the case in brief is that one Biswajit Bhattacharjee lodged a complaint u/s 12 of the CP Act, 1986, stating inter alia that his wife Smt. Bijaya Bhattacharjee became pregnant and she was undergoing treatment under Dr. R.N. Mondal of Gangarampur Sub Division Hospital. As per advise of Dr. R.N. Mondal wife of the complainant had to undergo for USG test at Ghosh Medical Centre & Ghosh Sonoscan Diagnostic Centre.
The USG report was signed by Dr. Subhra Aditya, MD on 6.1.2008 and had opined that a single living foetus about 35 weeks plus 1 week gestational age as normal. The USG was held by Sonoscan Diagnostic Centre, Gangarampur Branch. It was stated in the complaint that on 17.1.2008 wife of the complainant admitted to Gangarampur Sandhya Nursing Home for delivery and a female baby was delivered by the attending Dr. R. N. Mondal on the same date at about 3:10 p.m. The wife of the complainant was under treatment of Dr. R. N. Mondal, MD, Gynaecologist at Gangarampur Sub Division Hospital on 17.1.2008, the wife of the complainant Bijaya Bhattacharjee developed some uneasiness and she was admitted in nursing home and the female baby was born and that the baby expired after 48 minutes of her birth.
After birth of female child it was found that it had gross physical anomalies and as per medical termology the abnormality was described as gross Ascities anomalies. The report of USG made by Dr. S. Aditya on 6.1.2008 and the condition of the foetus was shown in the report which was not correct and out & out false.
It was stated by the complainant in the complaint that as per PC and PNDT Act, 1996 any medical officer who has MD in Radilogy or 6 months training in USG or works 1 year in the concerned department
Contd…P/3
can conduct USG test. But here in this case Dr. S. Aditya has registered and qualified MBBS from Calcutta University in the year 1998, Diploma in Child Health, 2002 and Doctor of Medicine (General Medicine) from Calcutta University in the year 2006. It was alleged by the complainant that the Chief Medical Officer Health (CHOM), Dakshin Dinajpur vide his letter dt. 26.3.2009 address to the S.I. of Police Sri Parimal Chakraborty of Gangarampur PS made it clear during investigation that Dr. S. Aditya is not a radiologist and she is not competent and properly qualified radiologist to perform the USG and thereby committed a gross negligence on her part and there was a gross deficiency in rendering service by a medical practitioner towards her patient. Sonoscan Diagnostic Centre also cheated the complainant by performing the USG by an unqualified radiologist and therefore Sonoscan Diagnostic Centre, Malda is also responsible for doing such illegal act and performances. The money receipt has been issued in the name of Sonoscan Diagnostic Centre, Mukundpur, Malda dt. 6.1.2008 and the report has been furnished by the clerk and signature of Dr. S. Aditya in the name of Sonoscan Diagnostic Centre, Gangarampur Branch.
In view of the facts and circumstances of the case the complainant lodged an FIR before Gangarampur PS Case on 23.12.2008 and that basis Gangarampur PS Case No. 317/08 dt. 23.12.2008 u/s 468, 418, 419, 109/304 IPC read with Section 7 of the West Bengal Clinical Act, against Dr. S. Aditya and Proprietor of Sonoscan Diagnostic Centre, Gangarampur was started.
On the basis of those allegations the complainant by filing this case prayed for compensation of Rs.15,00,000/- in total including interest.
The OPs contested the case by filing separate written versions. OP No.1 denied all the material allegations made by the complainant. It was stated by OP-1 that she is a registered medical practitioner after
Contd…P/4
obtaining degree of MBBS in the year 1998 from Calcutta University. The OP-1 apart from that basic qualification acquired diploma in child health (DCH) in the year 2002 and she also passed MD (Gen. Medicine) in the year 2006 and she also got training in Ultrasound as DMRD, Post Graduate Trainee (Gen. Medicine) in the year 2006. At the time of USG of the patient was conducted by the OP-1 on 6.1.2008, it was revealed that no hepatomegaly or splenomegaly, ascities or fatal distress of the foetus were present and accordingly the report was supplied to the patient party.
It was stated further by OP-1 that she being a competent registered medical practitioner having requisite qualification the OP-1 held the USG of the patient and prepared the report. The patient even after test of USG was under treatment of Dr. R. N. Mondal. There was no medical negligence on her behalf. The complainant made false allegation on her and being a police personnel he lodged the FIR, though a criminal case was initiated at the instance of the complainant and for oblique motive this case was filed against the OP-1, accordingly OP-1 prayed for dismissal of the case.
OP Nos. 2 & 3 filed written versions and denied that the OP No.1 had no qualification to prepare the USG report.
It was stated that in the complaint that is hopelessly barred by limitation since the cause of action arose on 17.1.2008 as alleged by the complainant but the complainant was filed on 28.12.2010 without any petition for condonation of delay as required under provision of CP Act, 1986 u/s 24A of the relevant act.
It was specifically stated by the OP Nos. 2 & 3 that Dr. S. Aditya is a qualified radiologist and she conducted the USG and after giving her opinion she handed over the photography plates to the patient concerned. The USG is helpful to the Gynaecologist for determination
Contd…P/5
and the Gynaecologist only had looked over the plate and if he found any such gross abnormalities he would have warned the patient concerned. Since no warning was given by the Gynaecologist it can be presumed that there was no anomalies in the foetus, if the USG plates are produced to this Forum by the complainant it could be visualized that there was no gross anomalies or ascites anomalies and it would be indicated that something had occurred in respect of baby after conducting of USG which is being suppressed by the complainant in subterfuge manner. There are many probabilities like fault on the part of the Gynaecologist or on the part of anasthesist or on the part of Nursing Home or for no one’s fault.
It was mentioned in the written version that the patient was referred to the radiologist as a case of regular ultrasonograhy not as a case of ascites anomalies which could have been clinically detected by the Gynaecologist before referring the patient for sonoscan for further confirmation. In view of the facts and circumstances of the above case the OP Nos. 2 & 3 have prayed for dismissal of the case.
On the basis of the pleadings of the respective parties following points are to be decided :-
- Whether Dr. S. Aditya had the requisite qualification to conduct the USG?
- Whether cause of death of the baby can be attributed to wrong finding given in the USG report by Dr. S. Aditya?
- Whether the complainant barred by limitation?
- Whether unfair / unregistered clinic by an unqualified doctor which has created gross deficiency in medical service?
- Whether the complainant suffered any loss for such unfair practice for commercial gains causing the mental suffering for the complainant and his wife?
- Is the complainant entitled to get relief as prayed for?
In order to substantiate the claim of the complainant several documents were filed and those have been marked as Exbits :-
Contd…P/6
- Prescription of Dr. R.N. Mondal, Chamber at Ghosh Medical Hall.
- Advertisement of Ghosh Medical Hall & Ghosh Sonoscan Centre.
- Money Receipt of Malda Sonoscan Diagnostic Centre, dt. 6.1.2008 for ultrasonography of Obsterical.
- USG Report, dt. 6.1.2008 of Dr. S. Aditya, MD on the pad of Sonoscan Diagnostic Centre, Gangarampur branch.
- Discharge certificate of Bijoya Bhattacharjee with baby note.
- Complainant of Biswajit Bhattacharjee to CMOH, Dakshin Dinajpur and other officials.
- Enquiry report of CMOH Dakshin Dinajpur vide Memo No.3163, dt. 22.12.2008.
- Report of CHOM Dakshin Dinajpur vide Memo No. 721, dt. 24.9.2009.
- FIR vide Gangarampur PS case No. 317/2008 u/s 468/418/419/109/304 IPC R/W section 7 of the West Bengal Clinical Establishment Act.
- Report of the West Bengal Medical Council vide Memo No. 1801-C/3-2009, dt. 24.9.2009 regarding registered qualification of Dr. S. Aditya.
- Report of CHOM Dakshin Dinajpur vide Memo No. 1276, dt. 20.5.2010 regarding the ownership & licence criteria of Sonoscan Diagnostic Centre on 6.1.2008.
- Report of CHOM Dakshin Dinajpur vide Memo No. 109/1, dt. 16.1.2013 regarding the ownership & licence criteria of Ghosh Sonoscan Centre from 6.1.2008 – 4.4.2008.
- Information of Indian Medical Council vide Memo No. 33732, dt. 1.9.2011 of Medical Council of India that according to law a Physician shall not claim to be specialist unless he / she has special qualification in that branch.
- O/S of Ld. ACJM, Buniadpur Court, Dakshin Dinajpur dt. 3.2.2015.
On behalf of the complainant one deposition of affidavit was filed by the complainant and interrogatives on affidavit by the OPs replied to the deposition by way of affidavit filed by the Biswajit Bhattacharjee (complainant).
Contd…P/7
DECISION WITH REASONS
Point Nos. 1 & 2:
The point nos. 1 & 2 are taken up together for the sake of brevity and avoidance of repetition of the said facts.
From the complaint case it is admitted fact that the complainant’s wife was carrying for several months and she was treated by Dr. R. N. Mondal, Gynaecologist, Sub Division Hospital and the complainant has filed a prescription of Dr. R.N. Mondal who advised for USG test at Ghosh Medical Centre & Ghosh Sonoscan Diagnostic Centre and the said test was done by Dr.Subhra Aditya, MD on 6.1.2008. She opined that a single living foetus about 35 weeks plus 1 week gestational age as normal. Subsequently, the wife of the complainant underwent the USG test which was held by Sonoscan Diagnostic Centre, Gangarampur Branch. It was stated in the complaint that on 17.1.2008 wife of the complainant admitted in Sandhya Nursing Home at Gangarampur for delivery and a female child was delivered by the attending Dr. R. N. Mondal. It was argued by the complainant that after birth of female child it was found that it had gross physical anomalies and as is termed as ascites anomalies and the report of USG made by Dr. S. Aditya on 6.1.2008 opined that the condition of the foetus was shown OK, which was not correct and out & out false and when the child was born it was found that the child was suffering from gross anomalies and for that reason the female child died.
After the said incident the complainant came to know from the attending doctor that last USG report dt. 6.1.2008 of Dr. Subhra Aditya is totally wrong and baseless because any sort of ascites and congenital anomalies was not detected in USG report. So no preventive measures were taken but ultimately a new born baby expired.
After the said fact that the complaint was sent on 31.1.2008 to CHOM, Dakshin Dinajpur for proper enquiry into the matter and report
Contd…P/8
was received wherefrom the complainant gathered knowledge that Dr. Subhra Aditya is not a qualified a radiologist and she did not complete her diploma course i.e. DMRD (Diploma in Medical of Radiology and Diagnosis) at Medical College & Hospital at Calcutta. It was argued that the said doctor issued a report on fake paper, moreover the said report did not mention the proper qualification in specialization of MD and medical registration number and full name of Dr. S. Aditya. The said anomaly is clear violation in Indian Medical Council (Professional Conduct, etiquette and ethique) Regulations, 2002, Ghosh Medical Hall was only a retail medicine shop owned by Nihar Kanti Ghosh and Ghosh Sonoscan Diagnostic Centre was only a X-ray Clinic owned by Sisir Kr. Ghosh and he has no licence to conduct the USG. From the annexured documents filed by the complainant it was argued by the complainant that unfair trade practice or restrictive trade practice has been adopted by such doctor with the help of service provider. It was emphasized by the complainant that Malda Sonoscan Diagnostic Centre, Malda has got partnership licence with Ghosh Medical Hall and Ghosh Sonoscan Centre has no right to issue any fake money receipt. The written version of OP-3 stated that the Sonoscan Diagnostic Centre, Gangarampur branch, CR Pally, Shibbari Road, Gangarampur was partnership licence which is mandatory as per provision of Prenatal Dignostic Techniques Act and Clinical Establishment Rules.
The complainant also argued that because of such illegal act done by doctor in collusion with Diagonosis Centre has caused immense loss to the complainant as well as to his wife who went for the said USG test under the said doctor causing death of the child due to fake report prepared by the said doctor resulting in sufferance of both mental and physical by the complainant and his wife and for which the complainant has prayed for compensation and litigation cost.
Contd…P/9
Ld. Lawyer for the OPs argued that Dr. S. Aditya who conducted the USG to the wife of the complainant is a qualified sonologist/ radiologist and after giving opinion she handed over photographic plates to the patient concerned. The USG report is helpful to the Gynaecologist for determination of any defect. The Gynaecologist after looking the plates and if he found any such anomalies he would have warned the patient concerned. Since, no warning was given by the Gynaecologist, it cannot be presumed that there was anomalies in the foetus, if the USG plates would have produced before this Forum it could have proved the gross anomalies or ascites anomalies and it would indicate that there had been something occurred in respect of the baby after conducting of USG which is being suppressed in subterfuge manner. There are many probabilities like fault on the part of Gynaecologist or on the part of anesthesis or on the part of Nursing Home.
It was emphasized by the Ld. Lawyer for the OPs that patient was referred to the radiologist as a case of regular USG and in case of ascites anomalies the said fact could have been clinically detected by the Gynaecologist before referring the patient for USG for further confirmation.
The complainant made a complaint to the CHOM and also West Bengal Medical Council and in both those Forums opined that the said Dr. S. Aditya had the requisite qualification to conduct the USG. Being baffled to get any relief in spite of starting the complaint case against the OPs u/s 468/418/419/109/304 IPC read with section 7 of the West Bengal Clinical Establishment Act. 1950 and said case was investigated by the police and during the investigation the I.O. obtained the opinion of West Bengal Medical Council who opined that the said doctor had the requisite qualification and she is entitled to do the USG of the said patient as the said doctor had undergone training for a period of
Contd…P/10
11 months in the department of Radiology, Diagnosis, Medical College & Hospital from 2.5.2002 to 9.4.2003 as per the PC and PNDT Act, wherein 6 months training is necessary for doing for prenatal Ultra Sonography. On the basis of the said fact that the I.O. prayed for submission of final report praying for discharging the OPs from the said case.
In view of the facts and circumstances of the case sine points as mentioned above are vital points for disposal of this case and since those points the complainant has failed to prove therefore the Ld. Lawyer for the OPs prayed for disposal of the case.
Considering submission of the respective parties from the materials on record it is found that the complainant’s wife after becoming pregnant she underwent medical treatment and the medical treatment was rendered by Dr. R. N. Mondal as per the complaint case since the wife of the complainant felt uneasiness while she went to Dr. R. N. Mondal she was advised to undergo for USG test. Accordingly, the wife of the complainant went to Ghosh Medical Hall and Sonoscan Diagnostic Centre and USG was done by Dr. Subhra Aditya on 6.1.2008 and the said report did not disclose any congenital anomalies of the baby and after birth of the baby it was found that there was gross congenital anomalies causing death to the new born baby. The complainant has raised this point that Dr. Subhra Aditya had no medical qualification to do the USG test to the said patient and she does not possess the qualification for obtaining the USG test of the patient and as a corollary to that the said Dr. Subhra Aditya along with other OPs committed fraud for which the complainant is to be compensated.
In order to come to a definite conclusion we must consider at first whether Dr. Subhra Aditya had the requisite qualification in order to prove the same, some documents have been filed which have also been admitted by the complainant that the Dr. Subhra Aditya is a
Contd…P/11
medical practitioner having qualification of MD (Gen.). It is also an admitted fact that the complainant being a police officer did not leave any stone unturned to unearth that the said doctor had no requisite qualification for which he lodged a complaint before CHOM, Dakshin Dinajpur as well as he filed a criminal case against the said doctor. The case was investigated by investigating officer and during the investigation he obtained the opinion of West Bengal Medical Council and a report obtained by the I.O. from the West Bengal Medical Council, whereby after going through the queries made by the I.O. the Medical Council answered by those queries stating inter alia that Dr. Subhra Aditya had undergone training for a period of 11 months in the department of radiology, diagnosis from Medical College & Hospital and as per the PC & PNDT Act, 6 months training is necessary for doing routine pre-natal ultra sonography and since she is trained for a period of exceeding 6 months in Medical College & Hospital and she is entitled to do routine pre-natal ultra sonography of the patient.
So far as other points are concerned the OPs have filed documents to prove that the said USG test was held in the said diagnosis centre and the said diagnosis center namely Sonoscan Diagnostic Centre had valid licence of PNDT. The said information was given to the complainant by Chief Medical Officer of Health, Dakshin Dinajpur. In spite of receiving such information the OPs have raised some questions that at the time of delivery due to mistake on the part of those doctors who were involved at the time of said delivery the complication may arise causing physical anomaly to the said baby resulting in unfortunately death of the baby. It is curious enough that those doctors have not been made parties to this case even they were not examined during on hearing of the case.
In this respect though from the materials on record it is crystal clear that the said doctor had the requisite qualification to do the USG
Contd…P/12
even if for the sake of argument if it is found that there was ‘an error of judgment on the part of professional is also not negligence per se,’ was held in the case of Dr. Mahadev Prasad Kaushik vs State of UP, in Criminal appeal No. 1625 of 2008. The bench headed by Hon’ble Justices CK Thakker and DK Jain while quashing the prosecution initiated against a doctor, the bench explained, “The standard to be applied for judging whether a person charged has been negligent or not would be that often of an ordinary competent person exercising ordinary skill in that profession.” The court granted a breather to doctors, who, are living under the constant threat of being dragged to courts for “erroneous” treatment these days, are hounded by ambulance chasers, a category of lawyers who convince patients to file cases against any treatment “gone wrong”.
Hon’ble Supreme Court said, “Medical profession is often called upon to adopt a procedure which involves higher element of risk, but which a doctor honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Which course is more appropriate to follow would depend on facts and circumstances of a given case.”
In the case of Indian Medical Institution vs. V.P. Shantha (1995, 6, SCC, 651) the Hon’ble Supreme Court approved a passage from Jackson and Powell on Professional Negligence and held that, the approach of the Courts is to require that professional men should possess a certain minimum degree of competence and that they should exercise reasonable care in the discharge of their duties.
It is well settled law as observed by the Hon’ble Apex Court in the case of Kusum Sharma and Ors. Vs. Batra Hospital 2010(1) CPJ 29 (SC) that –
Contd…P/13
“Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession. Medical practitioner would be liable only when his conduct fell below that of the standards of a reasonably competent practitioner in his field.”
Having regard to the facts and circumstances of the case we hold that both the points as discussed hereinabove against the complainant and we hold both the points in affirmative in favour of the OPs.
Other points are taken up together since we have already held the vital points against the complainant though the complainant filed after lapse of 2 years without any prayer for condonation of delay but the said point is not much significance in view of the vital points disposed of by us against the complainant, therefore, the said point is disposed of in favour of the complainant.
Since, the complainant is a police officer and taking advantage of his position and instituted this case falsely against the OPs and he tried his level best to denigrate to the doctor as unqualified though she possesses degree of MD, such false allegation against the said doctor would have compelled us to impose heavy cost upon the complainant but since the complainant has unfortunately lost his baby, we do not impose any cost against him for such a false, frivolous allegations against the OPs.
Hence, it is
O R D E R E D
that the instant complaint petition CC No.48 of 2010 is dismissed on contest without any cost.
Contd…P/14
Let a plain copy of this order be furnished to the parties forthwith free of cost.
Dictated & corrected
………Sd/-….…….
(Sambhunath Chatterjee)
President
I concur,
……Sd/-..……
(S. Saha)
Member
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