Tamil Nadu

StateCommission

CC/113/2014

P.Dhanaram & anr. - Complainant(s)

Versus

Dr.Gayathri,Consultant Radiologist, Primex Scans and Lab & anr. - Opp.Party(s)

S.L.Sudarsanam-Complt

29 Dec 2015

ORDER

 

BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI

                         Present: Thiru J. Jayaram,                                PRESIDING JUDICIAL MEMBER

                                      Tmt.  P. Bakiyavathi                           MEMBER

C.C. No. 113 / 2014

 

Dated this the 29th day of DECEMBER, 2015

P. Dhanaram,                                     ]

S/o Late R. Padmanabhan,                  ]

E2, “Giri Apartments”,                         ]

New No.175, Arcot Road,                    ]

Virugambakkam,                                ]  ..  Complainant

Chennai – 600 092                    ]

 

                   Vs.

 

1. Primex Scans and Labs,                  ]

    Represented by:                             ]

    Mr. Naresh Vassudhev,                   ]

    Senior Vice President,                    ]

    30/1, Bazullah Road,                       ]

    T. Nagar, Chennai – 600 017 ]

]

2. Dr. Gayathri,                                  ]

    Consultant Radiologist,                   ]

    Primex Scans and Labs                  ]

    30/1, Bazullah Road,                       ] ..  Opposite Parties

    T. Nagar, Chennai – 600 017 ]

  

This complaint coming up before us for final hearing on 05-11-2015 and on hearing the arguments of the complainants’ side and upon perusing the material records, this Commission made the following Order:

Counsel for Complainant:                    -        Mr. S.L. Sudarsanam

Counsel for Opposite Parties 1&2:       -        Exparte

J. JAYARAM, PRESIDING JUDICIAL MEMBER

 

The case of the complainant is as follows:

The complainant is a retired Senior Manager of Canara Bank, and he had some health problems and so, he consulted a doctor who advised him to take Master Health Check Up in the 1^st opposite party’s lab, and he approached the 1^st opposite party on 12-5-2013 for Master Health Check Up, and in the process of the check up, Ultra-Sonagraph of his entire abdomen was done by the 2^nd opposite party who is the Consultant Radiologist of the 1^st opposite party lab.

 

2.       After the diagnosis, a report was issued on the same day i.e. on 15-05-2013 in which under the heading ‘Kidney’ the report reads as “No evidence of calculus / mass lesion is seen”. The report was given along with the scan picture / image of the said Ultra-Sonagraph. He showed the scan picture to his family doctor, who was shocked to find that the scan picture / image showed a lesion in the left kidney which was not mentioned in the report issued by the opposite parties, and as stated above it is mentioned in the report “No evidence of calculus / mass lesion is seen” under the caption ‘Left Kidney’.

 

3.       The complainant’s family doctor could not comprehend as to how such report was given when the lesion is clearly visible in the scan picture / image. In order to avoid complications, the doctor advised him to take a fresh / new scan of the entire abdomen with another diagnostic lab centre, and accordingly, the complainant took the whole abdomen scan at M/s Gemini Advanced MRI and CT Scan. The report issued by the laboratory showed lesion in the left kidney. The report reads as follows:

 

“RENAL CELL CARCINOMA (LEFT SIDED)

S/P LEFT SIDED RADICAL NEPHRECTOMY (29.5.13)

DM-TYPE II

HTN

ACUTE KIDNEY INJURY WITH RESPIRATORY FAILURE

RIGHT HYDROTHORAX”

4.       The scan picture / image along with the report was shown to the family doctor who was shocked at the: Size ‘O’ of the lesion found in the complainant, and if the lesion had further grown a centimeter more, it would lead to bursting of the lesion causing death. There is negligence and severe deficiency in service on the part of the opposite parties in issuing a wrong and misleading report in an irresponsible manner. Upon this, the complainant’s blood pressure shot up and his health condition worsened and denigrated due to mental trauma caused by the opposite parties wrong report and the error committed by the opposite parties completely disturbed the complainant and we have to note that if the second and further scan tests were not done, serious consequences could have arisen.

5.       In these circumstances, the complainant got himself admitted in Vijaya Health Centre in Vadapalani on 27-05-2013 where he underwent surgery on 29-05-2013 and his left kidney was removed. The complainant was an inpatient in the hospital for 1 month and he was under ventilator for 10 days and he was in the ICU for 15 days and he was discharged on 28-06-2013. After the operation, the lesion was sent for biopsy test which confirmed Renal Cell Carcinoma.  

6.       It is to be noted that such a grave condition warranted major surgery and the opposite parties are highly incompetent who furnished a wrong report of serious nature on 12-05-2013 and if the complainant had fully believed the above test report dated 12-05-2013 issued by the opposite parties that everything was normal, his life would have been endangered, and there would have been serious consequences and untold hardship, which cannot be dispensed with or compensated by any means to his family members.

  

7.       The opposite parties have furnished a deficient and wrong lab report stating that everything was normal, without any concern for the human life and duty cast upon the opposite parties in safeguarding the life of the patient with utmost care and caution while issuing test report based on the scan report / image. There should have been maximum precaution while issuing the certificate.

8.       The erroneous report issued by the opposite parties amounts to negligence, dereliction of duty and deficiency in service on the part of the opposite parties. The consequences of the wrong report furnished by the opposite parties caused immense mental agony, severe trauma, physical strain, hardship, and irreparable loss to the complainant and the entire family needs to be compensated by the opposite parties.   

9.       The opposite parties prepared an incorrect lab report and the same was furnished to the complainant. However, after collecting the charges for the same, the opposite parties failed in their duty and had been negligent which caused severe trauma to the complainant.

 

10.     The complainant sent a letter dated 10-08-2013 to the opposite parties claiming compensation for the sufferings and mental agony undergone by him due to the deficiency in service on the part of the opposite parties. The 1^st opposite party sent a reply on 10-09-2013 denying the valid claim of the complainant. It is a clear case of negligence and the opposite parties are liable to compensate the complainant for the deficiency in service.

 

11.     The complainant has totally spent a sum of Rs.6,18,845/- for the treatment, medical charges, scan charges and other incidental expenses till date, and it was necessitated on account of the deficiency in service on the part of the opposite parties and the opposite parties are liable to compensate the complainant.

 

 12.    Hence the complaint praying for an award directing the opposite parties to pay a sum of Rs.50 Lac as compensation for mental agony, physical strain and for the deficiency in service on the part of the opposite parties, and to direct the opposite parties to pay a sum of Rs.6,18,845/- for the medical expenses incurred by the complainant on account of the deficiency in service on the part of the opposite parties and to pay costs.

 

13.     The opposite parties remained absent and were set exparte.

 

14.     The complainant filed proof affidavit along with 37 documents marked as Ex.A1 to A37 on the side of the complainant.

 

15.     The points for consideration are:

i)        Whether there is negligence or deficiency in service on the part of the opposite parties as alleged in the complaint;

 

ii)       Whether the complainant is entitled to claim compensation from the opposite parties;

 

iii)      To what relief the complainant is entitled?

16.     Point Nos. I & II:

It is pertinent to note that no medical expert’s opinion is placed before us and no medical expert’s evidence is adduced, and in the absence of medical opinion / evidence, we have to decide the case based on the other available evidence; and it is a case where we can safely invoke the doctrine of ‘res ipsa loquitur’.

17.     In this regard, we rely on the following decisions of the Hon’ble Supreme Court for our guidance:

 

V. Krishna Rao v. Nikhil Super Speciality Hospital

& Anr.   III-(2010)-CPJ-I-(SC)

 

“In the opinion of this Court, before forming an opinion that expert evidence is necessary, the Fora under the Act must come to a conclusion that the case is complicated enough to require the opinion of an expert or that the facts of the case are such that it cannot be resolved by the members of the Fora without the assistance of expert opinion. This Court makes it clear that in these matters no mechanical approach can be followed by these Fora. Each case has to be judged on its own facts. If a decision is taken that in all cases medical negligence has to be proved on the basis of expert evidence, in that event the efficacy of the remedy provided under this Act will be unnecessarily burdened and in many cases such remedy would be illusory”.                                            (Para 13)

 “In a case where negligence is evident, the principle of res ipsa loquitur operates and the complainant does not have to prove anything as the thing (res) proves itself.  In such a case it is for the respondent to prove that he has taken care and done his duty to repel the charge of negligence”.                                                                (Para 47)

 

Jacob Mathew v. State of Punjab & anr.

2005 (6) Supreme Court cases. 

 

“Res ipsa Loquitur – is a rule of evidence which in reality belongs to the Law of Tort. Inference as to negligence may be drawn from proved circumstances by applying the rule”.

(Page 22)  

“Res Ipsa loquitur is a rule of evidence and operates in the domain of civil law, especially in cases of torts and helps in determining the onus of proof in actions relating to negligence”.

(Page 34)

 

18.     The complainant had a Master Health Check Up with the opposite parties on 12-05-2013, and in the process, Ultra-Sonagraph of the complainant’s entire abdomen was done by the 2^nd opposite party, who is the Consultant Radiologist in the 1^st opposite party laboratory. The report reads as “No evidence of calculus / mass lesion is seen” and this report was given to the complainant along with the scan picture / image. The complainant showed this report along with scan picture / image to his family doctor, who saw the scan picture / image and informed them that there is a lesion in the left kidney and the lesion is clearly visible in the scan picture / image which is conspicuously missing in the report issued by the opposite parties and therefore, on the advice of his family doctor, another scan test was done in another diagnostic laboratory centre viz. Gemini Advanced MRI and CT Scan Centre and its report was issued to the complainant on 16-05-2013 where it is clearly mentioned that the complainant had a lesion in the left kidney to the extent of 4.1 x 4.0 x 3.6 centimeter.

 

19.     The scan picture / image along with the report were seen by the family doctor who was shocked at the ‘O’ size lesion and the doctor also informed that if the said lesion had grown even one centimeter further, it would have led to bursting, causing death.

 

20.     It is significant to note that the lesion was measuring 4.1 x 4.0 x 3.6 centimeters and the opposite parties could not note the lesion even though the lesion extends over an area of 4.1 x 4.0 x 3.6 cm. and there is no justification in the omission to note down this. Supposing that the measurement of the lesion was negligibly too small, it might have escaped the attention of the opposite parties, but considering the size of the lesion, it is a clear case of negligence and deficiency in service. Subsequently, the biopsy test confirmed renal cell carcinoma which means cancer and he got admitted in Vijaya Health Centre, Vadapalani, which is a well known hospital in Chennai and as seen from the Discharge Summary (Ex.A5) and the Report of the Department of Pathology (Ex.A6) that he has undergone treatment and nephroctomy surgery which reads as follows:   

 

“RENAL CELL CARCINOMA (LEFT SIDED)

S/P LEFT SIDED RADICAL NEPHRECTOMY (29.5.13)

DM-TYPE II

HTN

ACUTE KIDNEY INJURY WITH RESPIRATORY FAILURE

RIGHT HYDROTHORAX”

 

21.     Thus, we find that a large lesion indicating cancer could not be ascertained by the opposite parties in their lab, and as contended by the complainant, if he had remained content with the result of the lab test report issued by the opposite parties, the disease would have aggravated in a short span causing his death.

 

22.     On considering the entire materials on record, we hold that the complainant has established his case of negligence and deficiency in service against the opposite parties and that the complainant is entitled to claim compensation from the opposite parties, and the points are answered accordingly.

 

23.     Point No.3:

 

Taking into consideration, the facts and circumstances of the case and having regard to all the relevant factors, we feel that reasonable compensation must be awarded to the complainant.

 

24.     Now coming to the quantum of compensation, it would be appropriate for us to refer to the decision of the Hon’ble Supreme Court in the case of Ghaziabad Development v. Balbir Singh reported in (2004) 5 SCC 65 wherein the Court has held as follows:

 

“The word compensation is of a very wide connotation. It may constitute actual loss or expected loss and may extend to compensation for physical, mental or even emotional suffering, insult or injury or loss. The provisions of the Consumer Protection Act enable a consumer to claim and empower the Commission to redress any injustice done. The Commission or the Forum is entitled to award not only value of goods or services but also to compensate a consumer for injustice suffered by him”.

 

25.     The complainant has claimed a sum of Rs.50 Lac as compensation for mental agony, for the strain and the deficiency in service on the part of the opposite parties; and a sum of Rs.6,18,845/- towards the medical expenses incurred by him.

 

26.     We feel that the claim is extremely very much on the higher side and further that the complainant is not entitled to claim compensation for the medical expenses, except Rs.5,449/-, the charges for the clinical examination, and that an award of Rs.10 Lac would be the just and reasonable compensation for mental agony, etc, and the point is answered accordingly.

 

27.     In the result, the complaint is partly allowed, directing the opposite parties jointly and severally to pay:-

 

a) a sum of Rs.5,449/- (Rupees Five Thousand Four Hundred and Forty Nine only) incurred by the complainant for clinical examination, and

 

b) a sum of Rs.10,00,000/- (Rupees Ten Lakhs only) as compensation for mental agony and sufferings, and

 

c) a sum of Rs.25,000/- (Rupees Twenty Five Thousand only) towards costs of the proceedings.

 

Time for compliance: Two months from the date of receipt of copy of the order. In case of default to comply with the order, the amounts shall carry interest @ 9% p.a. from the date of default till compliance.

 

P. BAKIYAVATHI                                          J. JAYARAM          

         MEMBER                                     PRESIDING JUDICIAL MEMBER     

List of Documents filed by the Complainant

 

Ex.A1      12-05-2013       Ultra-Sonagraphy report by Opposite Party

 

Ex.A2      16-05-2013       Report of Gemini Scans

 

Ex.A3      28-06-2013       Bills (series) of Vijaya Health Centre

 

Ex.A4      28-06-2013       Final Bill issued by Vijaya Health Centre

 

Ex.A5      28-06-2013       Discharge Summary issued by Vijaya Health

                                      Centre

 

Ex.A6      29-05-2013       Report by Department of Pathology,

Vijaya Health Centre

 

Ex.A7      10-08-2013       Notice sent by complainant to Opposite Party

 

Ex.A8      10-09-2013       Reply by Opposite Party

 

Ex.A9      02-10-2013       Bill cum Receipt by Metropolis Diagnostics

Centre

 

Ex.A10    02-10-2013       Bill cum Receipt

 

Ex.A11    27-11-2013       Bill cum Receipt

 

Ex.A12    30-11-2013       Bill cum Receipt

 

Ex.A13    02-10-2013       Blood Report

 

Ex.A14    02-10-2013       Blood Report

 

Ex.A15    21-10-2013       Blood Report

 

Ex.A16    14-11-2013       Doctor’s prescription

 

Ex.A17    14-11-2013       X-Ray Report

 

Ex.A18    20-11-2013       Doctor’s prescription

 

Ex.A19    20-11-2013       Report of Ultrasound Abdomen & Pelvis

 

Ex.A20    20-11-2013       Urine Report

 

Ex.A21    27-11-2013       Blood Report

 

Ex.A22    30-11-2013       Blood Report

 

Ex.A23    14-02-2014       Blood Report

 

Ex.A24    19-02-2014       Doctor’s prescription

 

Ex.A25    21-04-2014       Blood Report

 

Ex.A26    21-04-2014       Urine Report

 

Ex.A27    23-04-2014       Blood Report

 

Ex.A28    02-06-2014       Blood Report

 

Ex.A29    02-06-2014       Urine Report

 

Ex.A30    06-06-2014       Cash Receipt

 

Ex.A31    06-06-2014       Doctor’s prescription

 

Ex.A32    20-06-2014       Diagnosis Report of Gemini Scans

 

Ex.A33    25-08-2014       Bill cum Receipt

 

Ex.A34    22-09-2014       Bill cum Receipt

 

Ex.A35    22-09-2014       Blood Report

 

Ex.A36    22-09-2014       Cash Bill

 

Ex.A37    24-09-2014       Cash Bill

 

 

P. BAKIYAVATHI                                         J. JAYARAM          

           MEMBER                                  PRESIDING JUDICIAL MEMBER