Tamil Nadu

North Chennai

CC/91/2017

Mrs.S.Veera Rajeswari - Complainant(s)

Versus

Dr.K.Arvind - Opp.Party(s)

R.Bakyaraj B.Abdul

30 Aug 2019

ORDER

 

                                                            Complaint presented on:  27.06.2017

                                                               Order pronounced on:  30.08.2019

 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (NORTH)

2^nd Floor, Frazer Bridge Road, V.O.C.Nagar, Park Town, Chennai-3

 

PRESENT:  TMT.K.LAKSHMIKANTHAM, B.Sc., B.L., DTL.,DCL, DL & AL -  PRESIDENT

 

TMT.P.V.JEYANTHI B.A., MEMBER - I

 

FRIDAY  THE 30^th  DAY OF AUGUST 2019

 

C.C.NO.91/2017

 

Mrs.S.Veera Rajeswari,

W/o.Mr.R.S.Krishnaswamy,

No.13/7, 3^rd Street, Thiru Nagar,

Villivakkam, Chennai – 600 049.

                                                                                        …..Complainant

 ..Vs..

1.Dr.K.Arvind,

Consultant – Radiologist,

Proscans Diagnostics Pvt.Ltd.,

#36 & 39, MTH Road,

Villivakkam, Chennai – 600 049.

 

2.Dr.Aysha Shaheen,

No.83, Thirumangalam Road,

(Next to Pooja Stationery),

Villivakkam, Chennai – 600 049.

.....Opposite Parties

Counsel for Complainant                      :  M/s.R.Bakyaraj, B.Abdul Samath,

                                                                     N.Babu

 

Counsel for 1^st opposite party                   : M/s.M.Nandan & S.Packiaraj

 

Counsel for 2^nd opposite party                        : M/s. Dr.B.Cheran, M.Nagarethinam

         

 

 

O R D E R

 

BY PRESIDENT TMT.K.LAKSHMIKANTHAM, B.Sc., B.L., DTL.,DCL, DL & AL

            This complaint is filed by the complainant u/s 12 of the Consumer Protection Act.1986.

1.THE COMPLAINT IN BRIEF:

          The complainant approached the 2^nd opposite party on 27.02.2017 at her clinic to diagnose the health issue viz. irregular menstrual. The 2^nd opposite party advised the complainant to take abdomen scan and also recommended to take the scan especially in the diagnostic centre of the 1^st opposite party. Hence the complainant approached the 1^st opposite party to take the said scan on 04.03.2017. In the said report dated 04.03.2017, the 1^st opposite party has mentioned as if the complainant’s “Pancreas size is normal and it shows uniform texture” and “Spleen also appear normal in size and it shows uniform echotexture”.  The complainant already undergone one surgery and her half of the pancreas and spleen were removed. Because of the said report the complainant had undergone mental agony. The act of the 1^st opposite party is nothing but deficiency in service, whereas both the opposite parties had indulged in medical negligence, which caused serious hardship, mental agony besides loss of money and time to the complainant. Hence this complaint.

2. WRITTEN VERSION OF THE   1^st OPPOSITE PARTY IN BRIEF:

          The complainant approached the 1^st opposite party on 04.03.2017 for taking  scan. It is false to state that on 04.03.2017 a scan report was given to her with a finding that “Pancreas size is normal and it shows uniform texture and spleen also appear  normal size and it shows uniform echotexture”. The fact is that there was an error in scrutiny and typing. Hence, the 1^st opposite party  informed her to collect the correct report. Accordingly correct  report was typed on 04.03.2017 at 9.07 p.m but she never collected the report on the same day. There is a reason to get error because the stomach, duodenum, and so on are covered with single or multiple firm yellow, grey docules in the gut wall measure from several M.M. to 4 C.M. Those will overlap the precuts and ileum. Therefore there is a possibility of resulting error. The complainant has not made out any medical negligence and deficiency in service on the part of the 1^st opposite party. The complaint against the 1^st opposite party is liable to be dismissed.

3. WRITTEN VERSION OF THE   2^nd  OPPOSITE PARTY IN BRIEF:

          The complainant had come to the 2^nd opposite party for consultation for irregular menstruation and lower abdominal pain. She did not bring any of her previous health records. The 2^nd opposite party had suggested the complainant to take an Ultrasound abdomen. When the complainant expressed that she did not know any scan centre and wanted to know the nearest centre to her residence, the 2^nd opposite party suggested Proscans.  The 2^nd opposite party has only referred to a proper scan centre which is also nearby to the complainant’s residence. It is no where stressed that the complainant has to take her scan only in this centre. The 2^nd opposite party stoutly deny the allegation of the  complaint that she had referred to Proscans for the purpose of making money. The 2^nd opposite party had not prescribed any medicines to her. The complainant did not suffer any damages what so ever and hence the complaint is to be dismissed.

 

 

 4. POINTS FOR CONSIDERATION:

          1. Whether there is deficiency in service on the part of the opposite parties?

          2. Whether the complainant is entitled to any relief? If so to what extent?

5. POINT NO :1

          The case of the complainant  is that she approached the 2^nd opposite party  on 27.02.2017 in her clinic to diagnose her complainant’s health issue i.e. irregular menstruation for which the complainant  was advised to get abdomen scan done from 1^st opposite party’s scan centre. On 04.03.2017 the complainant  approached the said scan centre and disclosed the fact of removal of half of the Pancreas and also the Spleen and then the scan was taken. On the same day evening the complainant got the report ready and  was shocked to see the report with following  particulars. “Pancreas size is normal and it shows uniform texture” and “Spleen is also appear in normal in size and it shows uniform echotexture”.  Again another scan was taken by the complainant in a different scan centre to know the real position and confirmed regarding the removal of half of the pancreas and spleen. If she had taken the treatment from the 2^nd opposite party based on the scan report given by the 1^st opposite party there would have been a serious issues to her life.  Hence the complaint is preferred for deficiency in service against opposite parties.

06. Ex.A1 is the Ultrasound Abdomen and Pelvis of the Complainant issued by Vee Care Hospital dated  30.01.2010 wherein it is incorporated as “ Pancreas: Head visualized and appears within normal limits” and “Spleen:Nor visualized Post splenectomy status”. Ex.A2 discharge summary discloses that  Distal Pancreatectomy and Splenectomy was done  on 27.01.2010. Ex.A3 is the Sonogram report of the complainant  issued by Precision Diagnostics. Ex.A4 is the prescription issued by the 2^nd opposite party  wherein it could be noticed that  a word is stricken out and below that it is written as “Proscans”, which is pointed out by the complainant  as the recommendation of the 2^nd opposite party  to get the complainant scanned in the 1^st opposite party’s  scan centre. Ex.A5 is the Ultra sound- whole abdomen report of the complainant issued by  1^st  opposite party  where under the Head of Pancreas it is stated as “Ultrasound – whole Abdomen”.             Prescription issued by the 2^nd opposite party is Ex.A6. Legal notice issued by the complainant to 1^st & 2^nd opposite parties dated 14.03.2017 through her Advocate with acknowledgement is Ex.A7 and letter sent by the opposite party’s Advocate and  the reply notices issued by the opposite parties  through their Advocate are   Ex.A8 & Ex.A9.

07. Learned  counsel  for 1^st opposite party  has put forth the  points referring the materials  on record in some of the medical books like  Hutchison’s Clinical Methods (18^th Edition), Manipal Manual of Surgery (3^rdEdition), Davidson’s Principles and Practice of Medicine (21^stEdition) and those reference materials  are marked as  Ex.B1 to Ex.B11 and would contend that the error occurred  and it was then corrected  and the complainant was called to collect the report but she did not turn up and the report was in turn sent to 2^nd opposite party  also and that later report is marked as Ex.B8 and also the complainant had not taken any treatment based on the scan report.  Therefore there is no negligence on the part of 1^st opposite party.

          08. The 2^nd opposite party would contend by filing written argument and written version that she referred the 1^st opposite party’s scan centre on request of the complainant which is nearby to the residence of the complainant and the complainant had not been prescribed with any medicine. Hence there is no negligence on the part of 2^nd opposite party  and the 2^nd opposite party  is unnecessarily impleaded.                             

             09. The complainant  first approached the 2^nd opposite party  on 27.02.2017 for her health issue i.e. for irregular menstrual problem and 2^nd opposite party   had advised for abdomen scan. Accordingly the complainant approached the 1^st opposite party on 04.03.2017 for taking scan and the scan report is Ex.A5. Earlier half of the complainant’s Pancreas and Spleen were removed as per the contention of the complainant. But the report in Ex.A5 reveals that Pancreas size is normal with uniform texture and spleen appears in normal size with uniform echotexture. The complainant  had already  taken a scan at precision diagnostics Pvt. Ltd., two months later to her surgery  to confirm the status and received a correct report in Ex.A3.  Discharge summary of the complainant issued by the Vee Care Hospital in Ex.A2 reveals that she was diagnosed with Papillary Cystic Neoplasm  of body of Pancreas and Surgery in the year 2010 was done  for Distal Pancreatectomy  and Splenectomy  and the impression given in the report filed along with Ex.A3 attachment  from  Precision diagnostics Pvt. Ltd confirms the Distal Pancreatectomy and Splenectomy status and this status is not denied by both opposite parties.

          10.  Ex.A4 is the prescription issued by 2^nd opposite party to the complainant for USG abdomen Scan when the complainant approached for her health ailment. We can see the scored out portion and below that it is written as Proscans. The allegation of the complainant is that 2^nd opposite party herself voluntarily recommended to 1^st opposite party’s scan centre in such  way she is also responsible for the negligent activity of  1^st opposite party. The 2^nd opposite party would contend that she happened to write the name of the 1^st opposite party’s  scan centre because of the request made by the complainant  to the 2^nd opposite party  to recommend for a nearest scan centre from her residence and not because of any intention or motive. It is to be accepted as true statement while noticing the residential address of the complainant  and scan centre of the 1^st opposite party  at Villivakkam and it is also important to notice the letter Head of 2^nd opposite party  if it had been intentional or for any other purpose as put forth by the complainant   2^nd opposite party  could have used the Letter pad  of the scan centre of 1^st opposite party,  which course  is normally available with doctors. The complainant’s allegation as the 2^nd opposite party had not taken the matter serious, when the complainant explained and reported the receipt of scan report from 1^st opposite party is not substantiated by the complainant. When the complainant approached the 2^nd opposite party  on 06.03.2017 the complainant was advised to undergo BHCG estimation and patient was not willing  and is noticed from the prescription in Ex.A6 and admittedly 2^nd opposite party  had not prescribed any medicines to the complainant.  Therefore as discussed above the 2^nd opposite party’s act cannot be treated as negligent act and the 2^nd opposite party  is not liable for any deficiency in service as alleged by the complainant.

             11. The documents marked on the side of 1^st opposite party in Ex.B8 is the   scan report alleged  to be corrected by 1^st opposite party and sent to 2^nd opposite party  after 1^st opposite party   could  not find the complainant   to serve the report at once. The earlier scan report from the 1^st opposite party Lab is Ex.A5 dated  04.03.2017. It is corrected in Ex.B8 under the head of Spleen as “Spleen not visualised-Post surgical status”. The contention of the complainant  is that she informed the 1^st opposite party  prior to the scan regarding her earlier surgery and the removal of  half of the pancreas and spleen. But the 1^st opposite party contends that neither the complainant  nor the opposite party  had  divulged  any fact of previous surgery and the body and half of the tail was covered with fleshy lining fibrous based on the sensitivity, 1^st opposite party had  mentioned about the presence of pancreas when the first report was issued to the complainant  by the 1^st opposite party  on that day. When he tried to send the report to the 2^nd opposite party  i.e to the referred doctor he scrutinized the report and found the mistake and corrected the same and  reported the matter to complainant at 9.10 p.m. over mobile phone and asked her to come and collect the report. Since the complainant has not turned up the report was sent to the 2^nd opposite party  through their staff. The 2^nd opposite party  had not disclosed the receipt of rectified report in her written version. Had it been sent to the 2^nd opposite party  she would have disclosed about the receipt of rectification report in her written version. Once the report is received by the complainant  there ends the  matter and there cannot be any rectification or else look into the matter once again by  1^st opposite party himself unless and until it is reported as incorrect and pointed out by someone. Therefore it is concluded that the second report is prepared only after coming to know about the situation and to wriggle out the situation and also to pose as they have not committed any   deficiency in service.

             12. Learned counsel for 1^st opposite party  has submitted  Ex.B1to Ex.B7 and Ex.B9 to Ex.B11  the medical reports and periodicals  and argued as follows;- Hutchison’s clinical methodology applied  to investigate abdominal disease with Ludh test, triple test, ERCP test, Ultrasound and C.T.Scan and suggested  that Pelvic report is one and the same in both the reports and to treat the irregular menstruation  pelvic report is sufficient if that be taken into account by 2^nd opposite party  for treatment  there is no negligent on the part of 1^st opposite party. C.T.Scan USG are full proof and successful rate is 70% if the organ is suffered from any disease it will reflect low sensitivity and also gas and obesity may obscure the view also and in Carcinoma cases if tumor is affected the head the body and the tail cannot be seen and adeno- carcinoma is distributed 60% to the head of pancreas 15% of the body and 5% to the tail of the pancreas etc., The cited portions of the study is only  with reference to  study materials and not a concluded answer  for the fault occurred in this case.

         13. If the portion is not found place in view of the reasons stated in the study of medicine as referred by  1^st opposite party  how could it be possible for the 1^st opposite party  to fish  out the image of spleen and pancreas as normal in the first report and then to come to the conclusion as it is not visible. Theoretical   suggestions has nothing to do with this case in hand and visualizing the organ as normal first and then  not visible later proves the irresponsible care taken by the 1^st opposite party. It clearly amounts to deficiency in service on the part of 1^st opposite party.

        14. Further it is also argued by 1^st opposite party that no harm is done to the complainant in view of the first report and she has not taken any medication further based on the first report. It is an admitted fact that the complainant had not taken further treatment based on the first report given by 1^st opposite party. But the complainant must have undergone depression and mental agony with confused state of mind  with respect to the issue  and she would not expected such a response from a responsible person  whose responsibility is wider than the normal person. Hence she is to be compensated for her mental agony caused by the 1^st opposite party and 1^st opposite party  is liable to compensate the complainant for his negligent act and point no.1 is answered  against the 1^st opposite party.

15. POINT NO:2

          In view of the discussions held in point no.1, the complainant’s mental agony suffered in view of the negligent act of 1^st opposite party is accepted by this forum as reported in the complaint by the complainant and as discussed in the earlier point. The alleged deficiency in service against 2^nd opposite party is not proved by the complainant hence the complaint against 2^nd opposite party is dismissed. Having considered the circumstances this forum is of the view that it is fit to order Rs.50,000/- as compensation for mental agony caused by 1^st opposite party  and it   would also be appropriate. The 1^st opposite party is directed to pay Rs.50,000/-  to the complainant towards the compensation for mental agony and  deficiency in service besides a sum of Rs.5,000/-for costs. The complaint in respect of the 2^nd opposite party is liable to be dismissed.                           

In the result, the complaint is partly allowed. The 1^st opposite party  is directed to pay a sum of Rs.50,000/-(Rupees fifty thousand only) to the complainant  as compensation for mental agony and deficiency in service  besides a sum of Rs.5,000/- (Rupees five thousand only) for costs. The complaint against 2^nd opposite party is dismissed.

The above amount shall be paid to the complainant within 6 weeks from the date of receipt of the copy of this order failing which the above said amount shall carry 9% interest till the date of the payment.

          Dictated to the Steno-Typist transcribed and typed by her corrected and pronounced by us on this 30^th   day of August 2019.

 

MEMBER – I                                                                PRESIDENT

 

 

LIST OF DOCUMENTS FILED BY THE COMPLAINANT:

Ex.A1 dated 30.01.2010         Ultrasonogram Abdomen & Pelvis of the complainant issued by Vee Care Hospital

 

Ex.A2 dated 25.01.2010         Discharge Summary of the complainant issued by the  Vee Care Hospital

 

Ex.A3 dated 27.04.2010         Sonogram Report of the complainant issued by the Precision Diagnostics Pvt.Ltd.,

 

Ex.A4 dated 27.02.2017         Prescription for scan issued by the 2^nd opposite party

 

Ex.A5 dated 04.03.2017         Ultrasound – Whole Abdomen Report of the complainant issued by the 1^st opposite party

 

Ex.A6 dated 06.03.2017         Prescription issued by the 2^nd opposite party

 

Ex.A7 dated 14.03.2017         Notice issued by the complainant to the opposite parties through her lawyers

 

Ex.A8 dated 25.04.2015         Letter sent by the opposite parties to the complainant’s lawyers

 

Ex.A9 dated 05.05.2017         Reply notice issued by the opposite parties to the notice issued by the complainant

 

LIST OF DOCUMENTS FILED BY THE 1^st OPPOSITE PARTY:

 

Ex.B1 dated NIL                     Hutchison’s Clinical Methods 131,132

                                                Manippal Manual of Surgery pages, 491 to 493

                                                Davidsons principals and practice of Medicine,

                                                Pages 845, 846

 

Ex.B2 dated NIL                     Harrison’s Principles of Internal Medicine pages 184 to 187

 

Ex.B3 dated NIL                     Manipal Manual of Surgery, pages 480 – 481

 

Ex.B4 dated         NIL                       SRB’s Manual of Surgery,  pages 626 & 627

 

 

Ex.B5 dated NIL                     John L.Wilsons Hand Book of Surgery, pages 477

                                                    - 483

 

Ex.B6 dated NIL                     Pathology basis of disease by Robin and Cotran, pages 480 – 481

 

Ex.B7 dated NIL                     Human Anatomy by BD Chaurasia, 4^th Edition, pages 283 to 388

 

Ex.B8 dated 04.03.2017         USG Scan report issued at 9.07 p.m

 

Ex.B9 dated NIL                     FAQ’s in diabetes pages 192-193 by Rajee Chowla and Aastha Chowla

 

Ex.B10 dated NIL                   Hot, Topics Hypertension, pages 192, 193

 

Ex.B11 dated NIL                   Davidsons principles and practice of Medicine, pages 802 & 803

 

                                                                            

 

MEMBER – I                                                               PRESIDENT