Tripura

Gomati

CC/10/2023

Sri Chandan Chakraborty - Complainant(s)

Versus

Dr. Subrata Paul - Opp.Party(s)

Sri Joyesh Dey

22 May 2024

ORDER

BEFORE THE

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

GOMATI DISTRICT: UDAIPUR

 

C A S E  NO. C. C. 10/2023

Sri Chandan Chakraborty

S/O. Kunja Chakraborty,

Resident of village:- Radhakishorepur RF,

P.O:- Radhakishorepur,

Pin:- 799120

Udaipur, Gomati District, Tripura

                       

                                                 …....…......COMPLAINANT.  

 

 

                    V E R S U S

 

1. Dr. Subrata Paul, MD, Radiologist.

(Registered No. 00372,

Attached to Majumder Pathology & Diagnostic Centre,

Dak Bungalow Road, Udaipur,

P.O:- Radhakishorepur, District Gomati- Tripura,

 

2. Sri Dipankar Majumder,

The Proprietors,

Majumder Pathology & Diagnostic Centre,

Dak Bungalow Road, Udaipur,  

P.O:- Radhakishorepur, District Gomati, Tripura,

(Contact:- 7005837126/8414899172,

Email:- majumderpatho@gmail.com)

 

 

                 …....……OPPOSITE PARTIES

 

P R E S E N T

 

SHRI S.L. DUTTA, PRESIDENT

A N D

SHRI S.Nandi, MEMBER

 SMT. B. SOM, MEMBER

 

                             C O U N S E L S

 

For the Complainant: - Sri Joyesh Dey, Ld. Advocate          

For the Opposite Parties- Sri Sankar Bhattacharjee, Ld. Advocate.

 

 

DATE OF INSTITUTION : 13-06-2023

DATE OF ARGUMENT : 02-05-2024

DATE OF JUDGMENT  : 22-05-2024

J –U- D –G-E- M- E –N- T

 

                        This case was instituted on the basis of a complaint filed under section 35 read with Section 38 of the Consumer Protection Act. 2019 by the complainant Sri Chandan Chakraborty praying for granting of compensation from the opposite parties alleging medical negligence.

2.                      The case, in brief, of the complainant are that the complainant on advice of Dr. Amaresh Bhowmik approached the diagnostic center of O.P No. 02 for ultra-sonography of his whole abdomen where the O.P No. 01 Dr. Subrata Paul conducted ultra-sonography of his whole abdomen on 06-01-2023 and submitted report on the same day in the following manner.

(i) There is evidence of triangular echogenic foci with comet tail artifact involving anterior wall of gall bladder;

(ii) Urinary bladder is debris. Wall of the bladder is thickened and irregular measuring 0.61 cm. There is also evidence of multiple echogenic fuci, measuring approx. 0.45 cm with indistinct posterior acoustic shadowing seen in bladder lumen.

Impression:

GR-I DIFFUSE FATTY LIVER.

ADENOMYOMATOSIS OF GALL BLADDER,

CHRONIC CYSTISIS

BULKY PROSTATE

ECHOGENIC FOCI WITH INDISTINCT POSTERIOR ACOUSTIC SHADOWING SEEN IN BLADDER LUMEN-D/D-VESICAL CALCULUS

URINIARY BLADDER DEBRIS

 

2.1                    He further averred that he again consulted Dr. Amaresh Bhowmik with the report of O.P No. 01 and basing on such report Dr. Amaresh Bhowmik suggested him to go outside the state of Tripura for better medical treatment and so the complainant rushed to the C.M.C Vellore by air and that C.M.C Vellore conducted fresh ultra-sonography of whole abdomen and submitted report as reflected hereunder:-

                        (i) Study Date:- 18-Jan-2023 report approved.

                         ULTRASOUND KIDNEYS:

                       FIDING:

                         RIGHT KIDNEY

                         Measuring :9.4 cm

                         Echogenicity: normal,

                         Corticomedullary differentiation is maintained.

                         There is no hydronephrosis/ calculi noted.

                         LEFT KIDNEY

                         Measuring :9.6 cm

                          Echogenicity :normal,

                          Corticomedullary differentiation is maintained.

                           There is no hydronephrosis/calculi noted.

                           URNIARY BLADDER: Partially distended.

                           PROSTATE: Normal

                           IMPRESSION: A 63 year old with gross hematuria for evaluation cr.1.5

                           Outside USG, Bulky prostate, vescical calculus. US Kidneys shows.

                           No significant abnormality.

                           Report transcribed by Sunitha

                           Dr. Latha.

                       

2.2                   It was his further case that 02(two) reports were quite contradictory and the complainant was misguided by the report of O.P No. 01 and had to rush to C.M.C Vellore by incurring huge expenditure, as reflected hereunder :

                        (i) To and fro Air fare from Agartala to Chennai and from Chennai to Agartala during 14-01-2023 to 26-01-2023: Rs. 6996/- + 13785/- = Rs. 20,781/-

                        (ii) Taxi fare from Chennai Airport to Vellore on 14-01-2023: Rs. 3000/-.

                        (iii) Taxi fare from Vellore to Chennai Airport : Rs. 3000/-.

                        (iv) Incidental charges for travelling : Rs. 1000/-.

                        (v) Lodging and fooding of two persons at Vellore from 14-01-2023 to 25-01-2023 (12 days) @ Rs. 3000/- per day : Rs. 15,000/-.

                        (vi) Medical expenses incurred at CMC & Hospital : Rs. 800/-.

                        (vii) Total: Rs. 43,581.

 

2.3                   Again he stated that besides incurring the above expenditure the complainant had also suffered from mental agony, harassment and loss of income for absence from duties for the period from 14-01-2023 to 26-01-2023 (13 days) which he described as under:-

1. Charged paid for conducting USG by Op 1: Rs. 2,000/-
2. Professional loss for 13 days @ Rs. 600/- per day : Rs. 7,800/-,
3. Sufferings from mental agony and harassment: Rs. 5,00,000/-
4. Total : Rs. 5,09,800/-.

 

2.4                   According to the complainant, he had to suffer mentally and physically because of negligence of the opposite parties and so the O.Ps were under obligation to pay compensation. Thus he prayed for directing the respondents to pay compensation of Rs. 5, 09,800/- (Rupees Five Lac Nine thousand Eight hundred) with litigation cost and interest.

 

3.                     Opposite parties on receipt of notice appeared and filed joint written objection denying the allegation of negligence. They pleaded that on 06-01-2023 complainant visited the pathology of O.P No. 02 with prescription of Dr. Amaresh Bhowmik with advice for various tests including USG and that accordingly the O.P No. 01 conducted USG of whole abdomen and submitted report with the following suggestions:

 

(i) There is evidence of triangular echogenic foci with comet tail artifact involving anterior wall of gall bladder;

(ii) Urinary bladder is debris. Wall of the bladder is thickened and irregular measuring 0.61 cm. There is also evidence of multiple echogenic fuci, measuring approx. 0.45 cm with indistinct posterior acoustic shadowing seen in bladder lumen.

Impression:

GR-I DIFFUSE FATTY LIVER.

ADENOMYOMATOSIS OF GALL BLADDER,

CHRONIC CYSTISIS

BULKY PROSTATE

ECHOGENIC FOCI WITH INDISTINCT POSTERIOR ACOUSTIC SHADOWING SEEN IN BLADDER LUMEN-D/D-VESICAL CALCULUS

URINIARY BLADDER DEBRIS

 

3.1                    They further pleaded that the complainant did not provide the ultra-sonography report of C.M.C Vellore and on receipt of a copy of such report it was revealed that there was no difference between the two reports. It was again pleaded that during USG due to lack of acoustic shadowing sometimes false positive or false negative detection was possible and that thereafter sometimes calculi might not bee deteccted on USG. Even very often detection of translucent stone got missed during USG and that such lack of acoustic shadowing could not be termed as wrong diagnosis or missed diagnosis and thus there was no medical negligence. Further it was pleaded that chronic cystisis was temporary condition and that the patient was advised medication by Dr. Amaresh Bhowmik and from the date of ultra sonography done by opposite party No. 1 on 06-01-2023 till 14-01-2023 due to intake of antibiotic by the complainant, the temporary condition might have recovered further. As per W.S, opposite party No. 1 was M.D (Radiology) having 03(three) years of experience and after completion of M.D in Radiology, opposite No. 1 conducted substantial Nos. of USG and thus had applied his best practical experience while doing USG.

 

4.                     On the basis of the pleadings and documents the following issues were framed.

I-S-S-U-E-S

 

1. Whether the case is maintainable?
2. Whether the complainant is a consumer of M/S Majumder Pathology & Diagnostic Centre?
3. Whether there was any medical negligence from the side of O.Ps?
4. Whether the complainant is entitled to any compensation for deficiency in service and if so what shall be quantum thereof?
5. To what other relief/ reliefs are the parties entitled to ?

 

5.                     To prove the case, complainant filed his evidence-in-chief on affidavit. He also filed documentary evidence such as medical prescriptions and report which were marked as Exbt. P1 (i-vi) and photocopy of air ticket with boarding pass which(on admission)  were marked as Exbt. P2 (i-iii). From the side of the respondent No. 1 he filed his evidence-in-chief on affidavit.

 

6.                     In argument the Ld. Counsel Mr. Joyesh Dey for the complainant submitted that the complainant got his sonography done at the pathology of O.P No. 02 under the care of O.P No. 1 Dr. Subrata Paul,  on advice of Dr. Amaresh Bhowmik and in the report presence of cysts and calculi were detected in the abdomen of the complainant and having seen such report Dr. Amaresh Bhowmik advised for better medical treatment outside the state of Tripura and so the complainant went to visit C.M.C Vellore for the tests and C.M.C Vellore after testing submitted a report showing no significant abnormality in the stomach of the complainant. Thus according to the Ld. Counsel the complainant was misguided by the wrong test and report of the OPs and had to visit C.M.C Vellore and that the same was a clear case of medical negligence which amounted to deficiency in service by the O.Ps, and thus according to the Ld. Counsel the complainant was entitled to get compensation from the opposite parties.

 

7.                     Ld. Counsel Mr. Sankar Bhattacharya, on the other hand, argued that the sonography of the whole abdomen of the complainant was done as per the standard practice and that whatever was noticed during sonography, was reflected in the report and that there was no medical negligence on the part of the opposite parties. It was further submitted that the sonography report of the C.M.C Vellore nowhere showed that sonogaphy of the complainant was done for the whole abdomen. According to the Ld. Counsel just because sonography report of C.M.C Vellore showed the absence of calculi, that did not mean that at the time of sonography at Udaipur calculi was not available because according to the Ld. Counsel there was time gap of more than a week and because of intake of medicine prescribed by Dr. Amaresh Bhowmik the calculi might have disappeared and so according to the Ld. Counsel there was no medical negligence on the part of the O.Ps.

 

8.                     In support of such submission the Ld. Counsel had relied upon the case laws decided In Daya Singh V/S Shivi Digital X-Ray and others, 2022 STPL 9053 NCSRC & Indu City Scan and Diagnostics Centre V/S Abhilasha and other 2022 STPL 13905 and NCDRC.

 

DISCUSSION DECISION & REASONS

 

Issue No. 1)    Whether the case is maintainable?   

9.                     The instant case was filed by the plaintiff for compensation for the alleged medical negligence of the O.Ps. It was the case of the complainant that on Doctor’s advise he visited the pathology of respondent No. 2 and got one sonography done by O.P. No. 1 and the report showed the presence of calculi and cysts in his urinary bladder and the same prompted him to visit C.M.C Vellore as per advice of Dr. Amaresh Bhowmik but the report of C.M.C Vellore did not show any calculi or cysts. The respondents in their written statement did not deny the conducting of sonography by O.P No. 1 at the lab of O.P No. 2.  According to the O.P No. 1, the 02(two) sonography conducted one at the pathology of respondent No. 2 and another at the C.M.C Vellore, were showing contradictory results and that in view of the contradictory results the complainant rightly filed the instant suit before this Commission.  Hence the suit is held to be maintainable.

 

Issue No. 2)    Whether the complainant is a consumer of M/S Majumder Pathology & Diagnostic Centre?

 

10.                    Complainant asserted that he was a consumer of the pathology and the diagnostic centre of O.P No. 02 and O.P No. 01 was the service provider who conducted ultra-sonography on the abdomen of the complainant and O.P No. 02 furnished the report. In the joint written objection, the O.Ps did not deny such fact. Hence it is held that the complainant is a consumer of M/S Majumder Pathology and Diagnostic Centre.

 

Issue No. 3)     Whether there was any medical negligence from the side of O.Ps?

 

11.                     The main grievance of the complainant was that on advice of Dr. Amaresh Bhowmik he approached the pathology and diagnostic center of O.P No. 02 where O.P No. 1 conducted ultra-sonography of his whole abdomen on 06-01-2023 and submitted report on the same day and such report revealed the presence of chronic cystysis and echogenic foci and so on advice of Dr. Amaresh Bhowmik he rushed to C.M.C Vellore for better treatment but on sonography done at C.M.C Vellore no significant abnormality was found. Thus according to the complainant, O.P No. 1 negligently conducted sonography and served report showing abnormality in his abdomen and for that he had to rush to C.M.C Vellore, Chennai without there being any significant abnormality and so there was deficiency in service of the opposite parties and for this the complainant sought compensation for mental agony, pain and the expenditure incurred unnecessarily at C.M.C Vellore.

 

12.                    The respondents, on the other hand, denied any medical negligence on the ground that during the sonography conducted at the diagnosis centre of O.P No.2  whatever was found at that time were reflected in the report. The Ld. Counsel for the opposite parties during argument submitted that there might be discrepancy in the report of sonography because of standards adopted during sonography.  According to the Ld. Counsel just because C.M.C Vellore showed a different observation did not mean that the sonography report of the O.Ps were incorrect. It was further submitted that the complainant did not confirm the report from any 3^rd party as to which of the reports were correct.  Referring to the medical literature on the USG diagnosis of urinary calculi it was submitted that the calculi might be missed during USG due to lack of acoustic shadowing of the calculus and therefore false positive or false negative detection was possible and sometimes calculi might not be identified on USG. It was again submitted that it was not clear as to whether C.M.C Vellore conducted USG by adopting the standard practice. The complainant in his evidence exhibited both the sonography reports.

 

13.                    From the sonography report of the complainant furnished by the O.Ps it appears that there was observation regarding presence of multiple ecogenic foci. On the other hand sonography report of the C.M.C Vellore does not show any such thing. Now question arises as to whether only because of the report of the C.M.C Vellore, O.Ps can be made liable for medical negligence.

 

14.                    It is not in dispute that the sonography at the pathology of O.P No. 2 and at C.M.C Vellore were conducted on 02(two) different dates with an interval of one week. It is well settled that the reporting depends upon the type of machine and software according to technological advancement.

15.                    As per Medical literature and standard textbooks on Radiology, USG of renal stone detection involves different interpretations, as for example:

            (a) Few calcifications along the corticomedullary junction appear as stone and a few sonologist mention it as renal stone;

            (b) Prominent vascular markings along the renal calyx appear as white spots in USG imaging and may be misinterpreted as renal stone;

            (c) Sometimes few prominent mucosa with fatty tissue within renal pelvicalyceal system appears as white spots in USG imaging and may be misinterpreted as renal stone;

            (d) Renal Stone can disappear earlier which depends on the type of material within e.g. calcium is dominant it disappear within hours or days.

            (e) Renal stones can appear earlier which depends on the type of material within e.g. calcium granules can appear within hours or days.

            (f) Renal abdominal pain has many causes not only renal stone is responsible for that always.

 

16.                    The observations of the NCDRC in “Daya Singh versus Shivi Digital X-Ray and others, 2022 STPL 9053 NCDRC”, as relied upon by the Ld. Counsel for the Ops, can be gainfully referred to. In para-10 of the judgement the following observations were made:

 

                        “10. We have gone through few medical literature on the USG diagnosis of urinary calculi viz. "Accuracy of ultrasound versus computed tomography urogram in detecting urinary tract calculi"[1] ; "Diagnostic Accuracy of Ultrasound & X-ray KUB in Ureteric Colic taking CT as Gold Standard"[2]; "Accuracy of ultrasonography for renal stone detection and size determination: is it good enough for management decisions?[3]. As per the medical literature, the USG had limited role in detection of renal calculi. It is an accessible and inexpensive imaging method without the risk of exposure to ionising radiation during CT study. In several studies, the accuracy of detecting renal, ureteric and urinary bladder calculi are 67%, 80% and 98% respectively. The sensitivity and specificity of USG varies. The calculi may be missed during USG due to lack of acoustic shadowing of the calculus, therefore, false positive or false negative detection is possible, therefore, sometimes calculi not being identified on USG. Very often detection of translucent stones is missed during USG done by the experienced hands.”

 

17.                    Here in the present case O.P No. 1 is a qualified Radiologist and the same is not in dispute.  In cross-examination of O.P No. 1 it is revealed that O.P No. 1 is also engaged in conducting ultra-sonography in other 02(two) labs and he is also posted in the district hospital, Gomati for conducting ultra-sonography.  

18.                    It is well known that there are certain limitations in conducting USG. Sometimes the renal calculi are not visible due to intestinal gases, shadows in the abdomen. Sometimes stones even pass out through urine. The more advanced a machine, the more precise is its report. The performance of Radiologist more or less depends on the efficiency of the machine available to him.

19.                    The sonography report, in the instant case, was prepared by the observations noticed during sonography and on the basis of such observations the report was prepared. The second sonography was conducted with an interval of 8 days and so passing out of stones through urine cannot be ruled out. Had the 02(two) sonography conducted on the same day then there could have been a scope to infer medical negligence on either side. Just because no stone was detected in the second sonography which was conducted after a gap of 8 days, medical negligence on the part of the O.Ps cannot be inferred, especially when there is nothing to suggest which of the 02(two) Radiologists i.e O.P No. 1 and Radiologist at C.M.C Vellore were correct, better or wrong.  Moreover the complainant did not avail the expert opinion of 3^rd party to show which of the 02(two) reports were correct. Practically there is no scope to find fault in any of the reports because the sonography was conducted on 02(two) different dates. The complainant failed to prove any case of negligence on the part of the Ops and thus in view of the aforesaid discussion it is held that there was no case of medical negligence from the side of the O.Ps.

            Accordingly issue No. 03 is decided.

                                    Issue No. 4) &Issue No. 5)

20.                   When issue No. 03 is decided against the complainant so he is not entitled to get any relief. So issue No. 04 & 05 are also decided in negative and against the complainant.    

 

O R D E R

 

21.                    Therefore, it is ordered that the complaint filed under section 35 read with Section 38 of the Consumer Protection Act. 2019 by the complainant Sri Chandan Chakraborty praying for granting of compensation from the opposite parties alleging medical negligence, is found to be devoid of any merit and is dismissed but without any cost.

 

22.                   A copy of this order be supplied to the parties.

 

23.                   With this observations and directions the instant complaint is disposed off on contest.

 

                         Make necessary entry accordingly.   

ANNOUNCED