ORDER

03.06.2024

Sh. Sanjay Kumar, President

1. Brief facts of the present case are that complainant alleged against OP1 with regard to misleading ultrasound report. It is stated that complainant had severe pain in the abdomen and consulted Dr. Arvind Khurana who advised an ultrasound for the upper abdomen and also few tests as he had doubt of stone in the kidney. It is stated that complainant approached OP1 on 03^rd September who claims to have latest art of state of technology in the vicinity.
2. It is stated that appointment was fixed by OP1 for the procedure and during the procedure the concerned doctor was busy in conversing with his lady  colleague and so much occupied in discussion that he did not care for the procedure of ultrasound and finished in very less time. It is further stated that on enquiry the doctor the ultrasound is OK and there is no stone in the kidney. It is further stated that on the same day with report complainant visited Dr. Arvind Khurana who checked up the report of ultrasound which was mentioning no stone. It is stated that Dr. Arvind Khurana than moved in another direction of his treatment and advised to get endoscopy and some more tests and also prescribed some more painkillers for the temporary relief.
3. It is stated that on 08.09.2014 things took ugly turn when the bout of pain in the abdomen was unreasonable and severe than earlier one. It is stated that complainant was rushed to Dr. Arvind Khurana at Fortis Hospital and after seeing the report from the OP1 claiming “No Stone” but complainant was having pain in the same area than doctor advised for once again ultrasound which was done at Fortis Hospital. It is stated that the report of ultrasound of Fortis Hospital shown “Left Kidney shows mild hydronephrosis with dilated upper ureter with calculus measuring approximately 8 mm  in the upper ureter” and this was the cause of severe pain. It is stated that doctor advised for operation and removal of stone which was performed by Dr. R. Yadav and stone was removed. It is stated that complainant was discharged from the hospital on the third da of hospital.
4. It  is stated that complainant has anguish against OP1 who made tall claims of technology which are sham. It is further stated that OP1 also claimed for a center of excellence for digital 3D, 4D ultrasound with latest model machines but due to carelessness of Dr. Rakesh Mittal all proved to be rubbish. It is stated that at the ultrasound procedure had been done in a professional manner than complainant would have  informed than there was sufficient time to plan operation without the aggravation of the pain to the complainant. It is stated that the complainant her husband kids and all family members suffered lot of agony because of ultrasound report of OP1.
5. It is stated that the profession of medicine has become just like any other business full of malpractices and play with the life of the patient. It is stated that OP1 committed negligence of the pious profession and created emergency which resulted in substantial expenses which drain out personal saving of the complainant.
6. The complainant is seeking compensation of Rs.2,00,000/- for all pain and frightening  of her life experience against OP1.
7. OP1 filed detailed WS and taken preliminary objections that present complaint is wholly misconceived, groundless, frivolous, vexatious, scurrilous and filed to harass, defame and extract illegal sum of money from OP1, therefore, complainant is liable to be dismissed. It is stated that no specific, scientific and justified allegations in regard to negligence of deficiency in providing service has been made by complainant against OP1, therefore, complaint is liable to be dismissed.
8. It is stated that OP1 has not committed any negligence and provided the treatment therefore, no cause of action arose to file the present complaint. The present complaint is baseless which is synthesized on the basis  of  unscientific laymen conjectures, assumptions and presumptions and thre is no case of negligence, therefore, present complaint is liable to be dismissed. It is  stated that the complainants husband also admitted under the respondent on his own when he visited the respondent after the incident he and his family members are regular satisfied patients for many years except for this one incident.
9. It is stated that present complaint is bad for  non arraignment and mis-arrangement of parties. It is further stated that complainant is insured with United India Insurance Co. Ltd. through its professional indemnity policy no.041200/46/13/35/0000/7016 effective from 30.01.2014 to 29.01.2015 and copy filed on record. It is further stated that OP1 is a reputated, respected and well qualified doctor and all documents in this regard filed on record.
10. The OP1 stated the facts that complainant/patient came to OP1 to do the upper abdomen USG with the referral of Dr. Arvind Khurana who is a Gastroenterologist, who advised ultrasound of upper abdomen which does not include findings of stone in the urter or bladder (KUB), the  OP1 has examined kidney only and not urter or bladder and found no stone in kidney on 03.09.2014. It is further stated that complainant did not come with  requisition by Dr. Arvind Khurana for USG of Kidney, urter and bladder (KUB). It  is stated that Dr. Arvind Khurana suspected biliary stone that is why the OP1 has specifically given photograph of CBD to the complainant. It is stated that there is no negligence, deficiency of service, unfair trace  practice on the part of OP1. It is stated that every thing done was delegently prudently with utmost due care and caution in the treatment to the complainant and there was no negligence at least from the side of OP1.
11. On merit all the allegations are denied and contents of preliminary objections and facts reiterated. It is stated that Dr. Arvind Khurana is a Gastroenterologist and not an Urologist. Had he suspected kidney stone than he would have referred the patient to the urologist. It is stated that the test which were advised (CBC, LFT and ultrasound Upper  Abdomen) do not suggest advise with a provisional diagnosis of kidney or ureteric stone. It is further stated that these tests suggest suspicion of a  hepato-biliary disease and Dr. Arvind Khurana suspected biliary stone that is why OP1 has specially  given a photograph  of the CBD to the complainant.
12. It is stated that in a case of renal or urtetric stone is suspected ultrasound KUB, renal function test and urine routine and microscopic are advised which were done later on at Fortis  hospital and complainant has not provided the details of all other tests done at fortis hospital except for ultrasound KUB. It is further stated that OP1 has examine kidney only not uterer and bladder and found  no stone in the  kidney on 03.09.2014. It is stated that complainant has a figment of imagination and as a policy the OP never talked to his colleague while conducting any procedure and always gives his best possible attention. It is stated that complainant was not advised for the same ultrasound test at Fortis hospital. It is stated that ultrasound of upper abdomen done at OP1 clinic did not show any kidney stone nor the  ultrasound done at Fortis Hospital.
13. It is stated that the ultrasound of upper  abdomen at OP1 clinic did not show any hydronephrosis in the left  kidney which can be confirmed by taking second opinion of any other competent radiologists with the ultrasound images provided. It is further stated that it is very common in cases of ureteric stones that ultrasound is normal for the first few days as hydronephrosis may take some time to develop and copy of ultrasound test book filed  on record. It is stated that on ultrasound it is difficult to diagnose a ureteric stone in the absence of hydronephrosis as happened in  the present case. It is stated that whole course of the ureter is traced when hydronephrosis is present in the kidney and even than a ureteric stone may not be seen with the ultrasound due to interference by bowel loops at the time of examination.
14. It is stated that also the whole of the ureter is not normally seen in ultrasound of the upper abdomen but seem when one is doing   ultrasound KUB (kidney, ureter and bladder) and when clinically there is a suspicion of ureteric stone it is stated that entire  case is based on the discrepancy between the two ultrasound reports and one can compare two  ultrasounds reports only if they were done on the same day or next day and same type of study is advised (in this case first ultrasound was upper abdomen and second KUB) second  ultrasound was  done after five days during which time kidney developed hydronephrosis secondary to the ureteric stone and was easily picked up and ureter was traced. It is stated that accuracy of ultrasound in diagnosing a ureteric stone is only 40-80% as can be verified by any expert in this field and medical literature. The OP1 filed medical literature.
15. It is stated that the details of other investigations done at Fortis Hospital and Dr. Khuranas prescription suspecting a kidney stone (as alleged by complainant) have not been disclosed intentionally to misguide. It is further stated that ultrasound report in no way altered the course of the disease or the treatment. It is stated that for ureteric stone operation is rarely done immediately and initially medical treatment is given chance and so many times the ureteric stone are passed in urine. It is stated that surgical treatment is needed only in a few cases and that too only after medical treatment fails. It is stated that complainants suffering and treatment would still have not been much  different and cheaper if the stone was detected a few days earlier. It is stated that cost of treatment was borne by the patients insurance company as her hospital paper say that she got herself treated in TPA package. It is stated that there is no negligence, deceptive practice, deficiency of service on unfair trade practice on the part of OP. It is stated that OP1 done everything diligently, prudently with utmost due care and caution. It is stated that present complaint is liable to be dismissed.
16. OP2 insurance company  filed WS and taken preliminary objection that OP1 conducted ultrasound of the complainant by the best testing machine and also as per best skill, knowledge and experience. It is further stated that OP1 conducted the test with due diligence but complainant is leveling false and frivolous allegations  just to extort the money by  filing present false complaint, therefore, complaint is liable to be dismissed. It is stated that present complaint is barred by limitation qua OP2. It is stated that present complaint filed in the year 2014 and OP2 impleaded in the year 2018 after four years of the complaint. The OP relied on judgment of Dr. CC Choubal Vs. Pankaj Srivastave IV (2003) CPJ 111 (NC).
17. It is stated that OP1 is insured with OP2 and no cause of action ever arose against OP1. Therefore, OP1 cannot be impleaded as party. It is stated that as  per terms and conditions of the policy the OP2 is only liable to pay/disburse the claim amount to the insured when the negligence is established. Therefore, present complaint is pre matured  and liable to be dismissed. It is further stated that present complaint is filed by complainant in collusion with OP1 just to take false claims on OP2.
18. On merit all the allegations are denied and contents of preliminary objections are reiterated.
19. Rejoinder filed by complainant to the WS of OP2 and denied all the allegations made therein and reiterated contents of complaint.
20. Complainant filed evidence by way of affidavit of complainant. In the complaint contents of complaint reiterated. Complainant relied on prescription slip of Dr. Arvind Kumar Khurana dated 02.09.2014 Ex.CW1/A, copy of bill for  ultrasound test of OP1 dated 03.09.2014 Ex.CW1/B, copy of report of OP1 dated 03.09.2014 Ex.CW1/C1-C3, copy of ultrasound report of Fortis Hospital dated 08.09.2014 Ex.CW1/D, Discharge summary dated 10.09.2014 Ex.CW1/D1-D2 and copy of bill paid by complainant to hospital Ex.CW1/E1-E2.
21. OP1 filed evidence by way of affidavit of Dr. Rakesh Kumar Mittal Owner. In the affidavit contents of WS reiterated. OP1 relied on copy of insurance policy Annexure R1, copy of qualifications  documents Annexure R2, copy of pages of ultrasound testbook Annexure R3 and copy of medical literature Annexure R4.
22. OP2 filed evidence by way of affidavit of Sh. Satish Jagga, Senior Divisional Manager. In the affidavit contents of WS reiterated.
23. Written arguments filed by complainant, OP1 and 2.
24. We have heard Sh. D.K Sinha counsel for  complainant, Sh. Dheeru Nigam counsel for  OP1. Neither AR nor counsel for OP2 addressed oral arguments, however, we have gone through the written arguments filed by OP2.
25. It is admitted case of the parties that complainant was under the treatment of Dr. Arvind Kumar Khurana as per prescription Ex.CW1/A dated 02.09.2014 who advised ultrasound. It is admitted that complainant approached OP1 Dr. Mittals Diagnostic Center on 03.09.2014 for ultrasound and paid Rs.1900/- for the tests vide Ex.CW1/B. OP1 conducted ultrasound of the complainant and given report Ex.CW1/C-1, C-2 and C-3. In this report it has been observed that “No Stone, Hydronephrosis or mass seen in any kidney”. However, as per ultrasound report of complainant dated 08.09.2014 at Fortis Hospital Shalimar Bagh mentioned “Left Kidney shows mild hydronephrosis with dialated upper ureter with a calculus measuring approximately 8 mm in the upper ureter. Rest of the ureter obscured by the bowel gases”. As per this report the complainant had undergone treatment for stone.
26. As per OP1 Dr. Arvind Khurana is Gastroentrologist and advised ultrasound of upper abdomen which does not include finding of stone in ureter of bladder (KUB) and Dr. Arvind Khurana suspected biliary stone. There is no deficiency of service or unfair trade practice or negligence on the part of OP1. As per OP1 the advised ultrasound of the upper abdomen which does not include finding of the stone in the ureter or in the bladder. The OP1 has  examined kidney only on 03.09.2014. The OP1 also referred the ultrasound test book literature wherein the accuracy of the ultrasound is upto70%. It is pertinent to mention here that the ultrasound at Fortis Hospital conducted after five  days which clearly mentions mild hydronephrosis at the left kidney and dialated upper ureter with  calculus measuring approximately 8 mm in the upper ureter. The OP1 failed to put forward any medical basis for the ultrasound report dated 08.09.2014. The report of OP1 dated 03.09.2014 specifically mentioned no stone hydronephrosis of mass seen in any kidney. The OP1 failed to establish on the basis of medical evidence or medical principle that the development of stone taken place after 03.09.2014. It  is clinically not possible that a stone suddenly appears within five days in the kidney even as per medical literature filed by OP1. We are of the considered opinion that the OP1 while conducting the ultrasound and giving report failed to detect the stone which resulted in great sufferance to the complainant and she has to undergone operation. We do not appreciate the plea taken by OP1 that in any case the complainant has to undergone operation of stone even if detected on 03.09.2014.
27. On the basis of above observation and discussion complainant established deficiency of service on the part of OP1. The OP1 has been insured by OP2 as per policy of insurance filed on record. Hence, we direct OP2 United India Insurance Co. to pay compensation of Rs.50,000/- to complainant and Rs.10,000/- as litigation cost within one month from the date of this order. In case of default directed to pay 9% interest on the above said amount till the realization. File be consigned to record room.
28. Copy of the order be given to the parties free of cost as per order dated 04.04.2022 of Hon’ble State Commission after receiving an application from the parties in the registry. The orders be uploaded on www.confonet.nic.in.

Announced in open Commission on  03.06.2024.

      SANJAY KUMAR                 NIPUR CHANDNA                       RAJESH

       PRESIDENT                             MEMBER                                MEMBER