BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
VAZHUTHACAUD, THIRUVANANTHAPURAM.
PRESENT
SRI. G. SIVAPRASAD : PRESIDENT
SMT. BEENAKUMARI. A : MEMBER
SMT. S.K.SREELA : MEMBER
O.P. No. 75/2002 Filed on 26.02.2002
Dated : 15.09.2010
Complainant:
Deepa. S, Deepa Bhavan, Moonnalam, Adur P.O, Pathanamthitta.
Opposite party:
Dr. Alex Ittiyavirah M.D, Ittiyavirah Scan and Genetic Research, Medical College P.O, Thiruvananthapuram.
(By adv. K. Murlidharan Nair)
This O.P having been heard on 30.06.2010, the Forum on 15.09.2010 delivered the following:
ORDER
SRI. G. SIVAPRASAD: PRESIDENT
The facts leading to the filing of the complaint are that the complainant was under treatment of the opposite party, that she approached the opposite party for the purpose of follicular study and for obtaining scan report for the purpose of deciding proper treatment by Amal Calist, that opposite party negligently and carelessly gave scan reports, that Dr. Amal Calist advised medicines on the basis of the said scan report and the treatment based on the said report was futile. Hence this complaint to direct opposite party to pay Rs. 3,50,000/- towards compensation to the complainant.
Opposite party filed version contending that the complaint is frivolous, vexatious and devoid of truth, that there is no negligence or deficiency in service as alleged by the complainant, that the complainant came for follicular study on 26.07.2001, 14th day of menstrual cycle, the findings were-Normal uterus Endometrial thickness-7 m.m, right ovary measures 2.2 cm, left ovary-no follicles. On 28.07.2001 right ovarian follicle measures 19 mm size, Endometrial thickness – 9 m.m. On 30.07.2001 follicle has ruptured, no longer seen. Endometrial thickness-12 mm, that complainant came for follicular study on 20.09.2001, on 13th day of menstrual cycle, that the findings were given, that again on 22.10.2001 complainant came for follicular study, that complainant said that she did not know her LMP, that follicular study is a continuous ultrasound evaluation of the status of the ovaries starting from 9-10th day of menstrual cycle, that the exact knowledge of LMP is very important in follicular study. The allegation regarding the qualification and experience of the opposite party is totally false. Opposite party is qualified and has more than 25 years of experience in radio diagnosis and ultra sound scanning both in India and abroad. Opposite party cannot be held liable for the infertility problem of the complainant as opposite party had conducted tests in accordance with accepted practice. Hence opposite party prayed for dismissal of the complaint with compensatory costs.
The points that arise for consideration are:-
Whether there is negligence and deficiency in service on the part of opposite party?
Whether the complainant is entitled to compensation? If so, at what quantum?
In support of the complaint, complainant has filed proof affidavit in lieu of examination in chief and has marked Exts. P1 to P7. Opposite party has filed affidavit in lieu of chief examination. Complainant has been cross examined by the opposite party. Opposite party has been cross examined at length by the complainant.
Points (i) & (ii):- There is no dispute on the point that complainant consulted the opposite party for follicular study and for ultrasonography Report. It has been the case of the complainant that she was undergoing infertility treatment by Dr. Amal Calist, on whose advice she consulted the opposite party for follicular study and ultrasonography report which is a sine quo nun in the treatment of infertility, that opposite party gave her a false and inaccurate report which is bereft of any scientific analysis, that because of the improper and negligent reports given by the opposite party, she was compelled to take a lot of steroids and other medicines which affected her health as well as her future chances of conceiving. It has also been contended by the complainant that the opposite party was lacking in giving the fundamental standard of care and expertise expected from him. Complainant's evidence consists of oral testimony of the complainant and Exts. P1 to P7. Exts. P1 to P6 are the ultrasonography reports issued by the opposite party at different dates to complainant. On perusal of Exts. P1 to P6 it is seen that opposite party is M.D in Radio diagnosis and working as Radiologist and ultrasonologist and that the patient/complainant is seen referred by Dr. Amal. Ext. P7 series are cash bills issued by various medical stores. In her cross examination, complainant as PW1 has deposed that she has been under infertility treatment after one year from her marriage and has been under consultation of the opposite party from 1999 onwards, but the same is not mentioned either in the complaint or in the affidavit. It is the specific case of the complainant that her treatment has not succeeded due to false scan report of the opposite party. In her cross examination she has deposed that many doctors like Dr. Swapna, Kottayam Medical College. Dr. Subhadra Nair have opined that her treatment has not succeeded due to faulty scan report of the opposite party. She has further deposed that the treated Dr. Amal also made the same comments. Opposite party has filed affidavit stating that he has filed version wherein he has detailed particulars of the procedures undertaken by him on the complainant. In his affidavit he has reiterated that everything connected with the diagnosis of the complainant was done in accordance with accepted practice and principles of management, in similar cases. Further opposite party has asserted that he is an ultrasonologist having qualification of MBBS, M.D and has been managing similar cases for the last more than 25 years. Though opposite party has been cross examined at length by the complainant nothing was elicitated from him to cast evidence against himself. At this juncture it may be stated here that to establish negligence on the part of opposite party, the claimant must show (i) what is the standard care, (ii) on facts of the case that opposite party's conduct fell below that standard and (iii) that the same had resulted to some injury to the patient. In this case, doctor is the opposite party, though he has been vehemently cross examined by the complainant nothing has been made out from him to disbelieve his affidavit. Here the question for consideration is whether the opposite party was negligent in giving ultrasonograph report. In a complaint for damages on account of negligence the onus lies on the part of the patient /complainant to prove that the doctor was negligent and the said negligence resulted in the injury which is complained. Basically medical negligence means such negligence resulting from the failure on the part of the doctor to act in accordance with medical standards in vogue which are being practiced by an ordinary and reasonably competent man practising the same art. Once the doctor accepts a patient this principle became applicable. Expert opinion is the basis for determining. Though complainant has cited three doctors including Dr. Amal as witnesses in the complaint, no attempt was made to examine them. As regards ultrasonography report, opposite party has proved by way of affidavit that he had taken reasonable care and caution in giving Report to the complainant to best of his ability and knowledge of the subject. In order to disprove this fact, complainant has not produced any expert evidence to show that only by improper and negligent scan report by opposite party, was she compelled to take a lot of steroids and other medicines which affected her health as well as her future chance for conceiving. In the absence of such expert evidence, there is no reason to disbelieve the evidence of the opposite party, regarding everything connected with the diagnosis of the complainant was done in accordance with accepted practice and principles of management. In the absence of any evidence adduced by the complainant to prove negligence and deficiency in service on the part of opposite party, we are of the view that opposite party is not guilty of medical negligence. Complaint has no merits at all which deserves to be dismissed.
In the result, complaint is dismissed.
A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.
Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 15th day of September 2010.
G. SIVAPRASAD,
President.
BEENAKUMARI. A : MEMBER
S.K. SREELA : MEMBER
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O.P. No. 75/2002
APPENDIX
I COMPLAINANT'S WITNESS :
PW1 - Deepa
II COMPLAINANT'S DOCUMENTS :
P1 - Original ultrasonography report dated 03.02.2001.
P2 - Original ultrasonography report dated 20.06.2001.
P3 - Original ultrasonography report dated 26.07.2001.
P4 - Original ultrasonography report dated 20.09.2001.
P5 - Original ultrasonography report dated 22.10.2001.
P6 - Original ultrasonography report dated 24.10.2001.
P7 - Original cash bills. (5 Nos.)
III OPPOSITE PARTY'S WITNESS :
DW1 - Dr. Alex Ittiyavirah
IV OPPOSITE PARTY'S DOCUMENTS :
NIL
PRESIDENT
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