Date of Filing:- 21.2.2018.
Order No.09 Dated – 22.5.2018
F I N A L O R D E R / J U D G E M E N T :
Shri Sibasis Sarkar, Ld. President.
The Complainant Smt. Kanchan Karati Baidya has filed the present petition of complaint under section 12 of the Consumer Protection Act, 1986, wherein she has stated that she was undergoing her treatment under Dr. Sumantra Mukherjee. As per advice of the said doctor USG test of the upper abdomen of the complainant was done by the opposite party on 3.6.2017. The USG report dated 3.6.2017 of upper abdomen of the complainant shows:-
GALL BLADDER:-
Normal Distention with mild wall thickening & Intraluminal sludge/microliths, multiple cholesterol crystal seen in G.B. wall.
IMPRESSION:-
Hepatomegaly with Grade-II Fatty Change.
Thereafter again USG was done by the O.P. on 05.07.2017. The said USG report issued by the O.P. dated 05.07.2017 of upper abdomen of the complainant shows:-
GALL-BLADDER – Distended with normal wall thickness and multiple calculi, largest one measuring about 13.1 mm. Multiple cholesterol crystal seen in G.B. wall.
IMPRESSION:-
Hepatomegaly with Grade – II fatty change.
On perusal of those two USG reports Dr. Sumantra Mukherjee advised the complainant to take advice of a Surgeon. Accordingly the complainant visited Dr. Rajat Bhattacharjee, Surgeon. The said surgeon verbally referred the complainant to Chennai for immediate operation. So, having no other alternative the complainant went to Sree Ram Chandra Medical Centre, Chennai on 19.07.2017. As per advice of the doctors of Ram Chandra Medical Centre, USG of upper abdomen of the complainant was done in the said Medical Centre on 20.07.2017, which shows:-
GALL- BLADDER:-
Partially distended – Normal in contour. The wall thickness is materially increased 4.3mm, multiple calculi seen, largest measuring 8 mm.
- :-
Fatty Lever – Grade-I.
Thus there was far difference between the USG report issued by the O.P and the USG report issued by Sree Ram Chandra Medical Centre. Under no circumstances size of the calculi could get smaller from 13.1 mm. to 8 mm. within 15 days without taking any medicine and Fatty Lever stage-II also could not come to stage-I within 15 days without taking any sort of medicine. This shows clear negligence on the part of the O.P. Due to the said wrong USG report issued by the O.P, the complainant had to go to Chennai for taking proper medical advice at Sree Ram Chandra Medical Centre causing much harassment to the complainant. The complainant was suffering from severe mental pain and agony during said period. The O.P remained absent before the Assistant Director, Consumer Affairs Department, Jalpaiguri, on 21.9.2017 compelling the complainant to file the present case on the grounds mentioned in the petition of complaint.
The O.P is contesting the case by filing Written Version denying all the material allegations mentioned in the petition of complaint contending, inter alia, that the case is not maintainable inits present form and prayer.There is no cause of action for the present case. No expert evidence has been obtained by the complaint to prove the negligence of the O.P. In the absence of any expert opinion the case is liable to be dismissed.The specific case of the O.P. is that in sonography, one measures echo shadow of calculi. If two or more calculi are very close, it may appear as a single stone and hence measurement will be more. In case of multiple stones, one can see only one surface and not the three dimensional image, so if the stone is transversely placed(larger dimension, horizontally placed), then the stone size will appear more, but if the same is vertically placed, the surface of the stone facing the ultra-sound beam will measure less. The size of gall-bladder stone does not matter, it is the symptom of the patient that actually matters most which decides operation. The further case of the O.P is that fatty change in lever may increase or decrease within weeks either with or even without medicines. So, there was no negligence on the part of the O.P and accordingly there was no deficiency in service on his part. As such the complainant is not entitled to get any relief, as prayed for and the case is liable to be dismissed with cost.
Considering the rival pleadings of both the parties, the following points are being framed.
POINTS FOR CONSIDERATION:-
1) Is the case maintainable in its present form and prayer ?
2) Was there any deficiency of service on the part of the opposite party?
3) Is the complainant entitled to get any relief, as prayed for ?
4) To what other relief or reliefs is the complainant entitled ?
DECISION WITH REASONS
In the instant case neither the complainant, nor the opposite party adduced any oral evidence. They also did not file any affidavit-in-chief. However, both parties submitted before the Forum to pass the final order/judgment on the basis of the petition of complaint supported by affidavit along with the documents annexed therein and the Written Version supported by affidavit along with the documents annexed therein treating them as their respective evidence on affidavit. Accordingly, as the present case is triable by summary procedure, so we accepted the petition of complaint along with the documents annexed therein and the Written Version along with the documents annexed therein as the respective evidence on affidavit of both the parties. We have also carefully perused the B.N.A filed by both the parties and the decision cited on behalf of them. We have also heard arguments of both sides in full and at length. We have also carefully perused the decision cited on behalf of both parties.
POINT NO.1 :-
The Ld. Lawyer for the O.P. argued that in the instant case the complainant did not obtain any Expert report toprove that there was negligence on the part of the doctor who made the USG test of the complainant.The ld. Lawyer also cited the decision reported in IV(2017) C.P.J 343(NC)(S.S. Ghosh and another-Vs-Sahadeo Prasad Anjana alias Sahadeo Bhuiya). On the other hand, according to the Ld. Lawyer for the complainant in the instant case no complicated question of medical science arose, so expert evidence is not necessary.The Ld. Lawyer for the complainant also cited the decision of the Hon’ble Supreme Court reported in (2010) 5 S.C.R, page-1(V. Kishan Rao-Vs-Nikhil Super-speciality Hospital & another).
It is now well-known to us that the decision of the Hon’ble Supreme Court reported in (2010) 5 S.C.R, page-1, is the latest guideline for the Fora relating to Expert evidence. It has been clearly mentioned in the said decision by the Hon’ble Supreme Court that Expert evidence is not required for opinion of all medical negligence cases. Expert evidence is necessary when Fora comes to the conclusion that case is complicated or such that it cannot be resolved without assistance of Expert opinion. Considering the facts and circumstances of the present case, we are of the opinion that the present case is neither complicated,nor any assistance of Expert opinion is required.Therefore, the present case cannot be treated as not maintainable in the absence of Expert opinion. As such we hold that the present case is maintainable.
This point is thus decided in favour of the complainant.
POINT NO. 2:-
It is the case of the complainant that the USG test reports dated 3.6.2017 and dated 5.7.2017 in respect of upper abdomen of the complainant handed over by the O.P are incorrect and the USG report dated 20.7.2017 in respect of the upper abdomen of the complainant handed over by Sree Ram Chandra Medical Centre, Chennai, is correct.There is difference between the USG report of the O.P and the USG report of Sree Ram Chandra Medical Centre.
From the USG report dt. 03.06.2017 issued by the O.P, we find that gall-bladder of the complainant was found having normal distention with mild wall thickening and intraluminal sludge. There were also presence of microliths which means multiple tiny calculi in gall-bladder. There were also multiple cholesterol crystals in the G.B. wall. So, it is clear from the USG report dt.03.06.2017 that the gall-bladder of the complainant was unhealthy. From the USG report dt. 05.07.2017 we find that the gall-bladder of the complainant was distended with normal wall thickness and multiple calculi, largest one measuring about 13.1 mm. There were also multiple cholesterol crystals in the G.B. wall. So, out of the multiple tiny calculi which were found in the USG report dt. 03.06.2017, one such calculi became increased by 05.07.2017 i.e. within one month, which is not at all impossible. The other matters relating to the gall-bladder of the complainant remained unchanged. From the USG report dt. 20.07.2017, issued by Sree Ram Chandra Medical Centre, Chennai, we find that the gall-bladder of the complainant was found partially distended and normal in contour. The wall thickness is mildly increased 4.3 mm. There were also multiple calculi, out of which the largest measuring 8 mm. So, the USG report dt. 20.07.2017 also shows that the gall-bladder of the complainant was unhealthy and out of the multiple calculi one calculi became increased. The other opinion remained same in all the three USG report. The only difference is that the USG report dt. 05.07.2017 shows that out of the multiple calculi, just one was measured about 13.1 mm. On the other hand, the USG report dt. 20.07.2017 issued by Sree Ram Chandra Medical Centre, Chennai, shows that out of the multiple calculi, the largest one was about measured 8 mm. and not 13.1 mm. Now the question is whether there was any negligence on the part of the O.P. for such difference in the measurement of the largest calculi.
From the medical journal we find that gall-stones are hardened deposits of digestive fluid that can form in the gall-bladder. Gall-stones range in size from as small as of a grain of sand to as much as a golf-ball. Mainly there are two types of gall-stones:-
1) Cholesterol gall-stone : The most common type of gall-stone is called a cholesterol gall-stones. These gall-stones are composed mainly of undissolved cholesterol but may contain other components.
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From the prescription issued by the doctor of Sree Ram Chandra Medical Centre, Chennai, we find that the doctor did not suggest for any surgery, but only suggested life style modification. So, it can be presumed that the complainant did not experience symptoms from her gall-stone which required gall-bladder removal surgery. From the documents filed by the complainant, we find that Dr. Sumantra Mukherjee of Jalpaiguri suggested the complainant to visit surgeon Dr. Rajat Bhattacharjee, but there is no document before the Forum to believe that the complainant visited the said surgeon as per advice of Dr. Sumantra Mukherjee. So, it can be safely presumed that the complainant without visiting Dr. Rajat Bhattacharjee directly went to Sree Ram Chandra Medical Centre, Chennai, for the reason best known to her. No doctor or surgeon of Jalpaiguri suggested the complainant for removal of gall-bladder by surgery. So, it can also be presumed that before going to Chennai the complainant did not experience any sign and symptom for removal of gall-bladder. Therefore, it can be presumed that the gall-stones of the complainant irrespective of measurement did not cause any sign or symptoms which required any treatment. Therefore, the complainant did not experience any harm for the measurement of the gall-stone measured by the O.P.
From the medical journal we find that gall-stones formed in the gall-bladder remain there. Rarely they dissolve and disappear in the gall-bladder. So, as per the medical journal though it is very rare that gall-stone will dissolve and disappear in the gall-bladder, but it is not impossible at all. So, decreasing of gall-bladder from 13.1 mm. to 8 mm. within a period of 15 days is not at all impossible. It is known to us that in sonography one measures echo-shadow of calculi. So, getting accurate measurement of the calculi is not possible. Besides that, if two or more calculi remain there close then it may appear as a single stone. So, measurement will be larger; there may be several other reasons for whch the measurement of a gall-stone may be incorrect. Besides that, no repeat USG was done by the complainant after 20.07.2017 and before filing of the present case i.e. before 21.02.2018 to show that the measurement of the largest calculi taken by the doctor of Sree Ram Chandra Medical Centre is correct. We have already found that no harm has been caused to the complainant for the measurement of the largest calculi taken by the O.P.We also do not find any reason what prompted the complainant to go to Chennai without consulting a Surgeon at Jalpaiguri. Considering all these circumstances, we think that there was no negligence on the part of the O.P.
The furthercase of the complainant is that the USG reports issued by the O.P dated 3.6.2017 and dated 5.7.2017 show that there was hepatomegaly with Grade-II Fatty Change. On the other hand, the USG report dt. 20.7.2017 issued by Sree Ram Chandra Medical Centre, Chennai, shows Fatty Lever Grade-I.According to the complainant, the O.P noted the Grade-II Fatty Change of Lever in place of Fatty Lever – Grade I, due to his negligence.
In this respect we are of the opinion that it only matters whether the lever was fatty or not, it does not matter whether it was grade-II or grade-I.There is every possibility of decrease or increase of fatty lever within weeks with or even without medicines. We have already observed that no repeat USG was done by the complainant to show that the USG report issued by Sree Ram Chandra Medical Centre, Chennai is correct. We have also found that no harm has been caused to the complainant for noting the lever of the complainant as hepatomegaly with Grade-II Fatty Change. So, we are unable to believe that there was any negligence on the part of the O.P in reading the USG report of upper abdomen of the complainant. Thus, the complainant has failed to prove that there was deficiency in service on the part of the O.P.
Accordingly, this point is decided against the complainant.
POINT NOS. 3 AND 4 :-
From the discussion made above and in the light of our observation, we have found that there is every possibility of error in the measurement of gall-bladder stone. We have also found that though it is a very rare case, there is possibility of decrease in the gall-bladder stone. We have also found that fatty change of lever may increase or decrease within a week with or without taking any medicine. We have also found that no repeat USG was done by the complainant to show that the USG report issued by Sree Ram Chandra Medical Centre, Chennai is accurate and correct.We have also found that no harm has been caused to the complainant due to the USG report issued by the O.P. We also did not find as to what prompted the complainant to visit Sree Ram Chandra Medical Centre without consulting a surgeon at Jalpaiguri.
Considering all these circumstances, we are of the considered opinion that the complainant has miserably failed to prove that there was deficiency in service on the part of the O.P.As such the complainant is not entitled to get any relief, as prayed for.
These points are also decided against the complainant.
Hence, it is
O R D E R E D:-
that the Consumer Case No. 08 of 2018 be and the same is dismissed on contest against the O.P without cost.
Let the original documents, if any, and the extra-sets filed by the parties, be returned on proper receipt.
Let a plain copy of this order be supplied to the parties free of cost on proper receipt and identification or be sent by speed post, in terms of Rule 5(10) of West Bengal Consumer Protection Rules 1987.
