West Bengal

Siliguri

CC/26/2018

SUCHITRA GHOSH - Complainant(s)

Versus

M/S THYROCARE (SILIGURI) - Opp.Party(s)

SANTANU CHAKRABORTY

19 Aug 2019

ORDER

The case of the complainant, in brief, is that the complainant at her age of 65 years was a patient of Dr. Anirudha Ghosh and prior to that blood sugar of the patient was detected but she remained physically fit by the treatment of the said doctor and on 09.09.2017 the count of blood sugar was 458(Annexure-A) while Creatinine showed of her as 4.3(Annexure-B) and at that time feeling some disorders in health the complainant again visited her doctor on 23.09.2017 who advised her a routine check up and that was done at M/S Thyrocare (Siliguri), OP of this case and the report of such check up was released on 25.09.2017 (Annexure-C, pages- 1 to 12). It is further contended in the petition of complaint that such report dtd. 25.09.2017 showed the Creatinine-Urine level as 56.05 which is grievously higher.  The doctor of the complainant said that it is as danger that the kidney would be collapsed and dialysis might have required.  The patient-complainant became very much shocked and became victim of breathing problem realizing which doctor immediately advised the patient for making cross check up and that was done on 25.09.2017 at SRL Diagnostic Laboratory, Apollo Tower, Sevoke Road Siliguri which report has been annexed as Annexure-D and the bill is Annexure-E. 

In this case the sole OP M/S Thyrocare (Siliguri) and after admission of the case notice/summons was sent to the OP but from the case record it appears that despite proper service of the same on the OP on 23.05.2018, the OP did not turn up before this Forum and ultimately in such state of absence of the OP it appears from the order no. 6 dtd. 09.07.2018 that as the statutory period for filing w/v by the OP became over so the case has been proceeded ex-parte against the OP.  Thereafter during this stage of ex-parte hearing of this case the complainant filed her evidence by furnishing written affidavit-in-chief in support of her case and also filed the original documents from her part while the photocopies of which were filed earlier at the time of initiation of this case.  Complainant prior to argument filed also written notes of argument and oral argument has also been done by the side of the complainant by her Ld. advocate on record. 

On the basis of the petition of complaint as well as other relevant materials on case record having regard to the submission made from the side of the complainant the following issues are framed for determination of this case which has been running ex-parte against the OP:-

1. Is the complainant a ‘consumer’ as per definition of the term according to C.P. Act. 1986?
2. Has the OP committed deficiency in service or has the OP done unfair trade practice towards/upon the complainant in this case as alleged?
3. Is the complainant entitled to get the relief/reliefs as prayed for?

DECISION WITH REASONS

All the above three issues are taken up together for the sake of convenience of discussion and consideration.

It is the case of the complainant that complainant’s blood sugar was detected in the year 2016 while she felt ill and visited Dr. Anirudha Ghosh and that doctor started her treatment and as per advice of the doctor she examined her blood on 09.09.2017 and by that report blood sugar count was recorded at 458 while creatinine showed at 4.3 and that was done at the OP-pathological laboratory, unit or center.  It is further contended in the complaint that complainant being patient again visited her doctor on 23.09.2017 who advised her to have routine check up as she had made it prior to that before the OP-laboratory and accordingly that was done but in that report dtd. 25.09.2017 her creatinine-urine showed at 56.05 while creatinine-serum reported at 4.3 and subsequent to that while doctor apprehended that as dangerous by which kidney might be collapsed and dialysis would have to be taken, the patient became shocked and frightened and her breathing problem started increasing and for that reason the said Dr. Ghosh advised her for cross checkup and that was also done

immediately on that date i.e. on 25.09.2017 at SRL diagnostics laboratory at Siliguri wherefrom it was reported that creatinine-serum leveled at 0.99 and remarked as high and typed ‘bold’. Annexure-2 which is the only prescription of Dr. Anirudha Ghosh filed in this case by the complainant shows that complainant being patient aged about 62-years first visited the said Doctor on 12.09.2017 and thereafter on 26.09.2017.  No prescription of the doctor in respect of the patient-complainant has been filed in support of Paragraph no. 1 of the petition of the complaint.  In the prescription part of 12.09.2017 serum-creatinine has been noted as 4.3 but in the part of dtd. 26.09.2017 creatinine has been mentioned by the doctor at the left margin of the same prescription as 0.99 and doctor suggested for stopping the medicines prescribed by him and further no reference/suggestion/advice to the patient over that prescription is found.  From Annexure-C Page Nos. 3 & 7 the reports of OP-laboratory over creatinine-urine as 56.5 and that of creatinine-serum as 4.3 both of dtd. 25.09.2017 are seen and from Annexure-D which is the blood report prepared and examined by SRL Diagnostics over creatinine-serum as 0.99 on the same date i.e. on 25.09.2017 discloses difference of a bit more than six hours’ time to get the two reports at variance from two pathological laboratories where in both the cases the creatinine-serum factor of the complainant was not within normal range.  Now the question arises as to where is the deficiency in service and what was the actual state of affairs as regards the level of creatinie-serum as examined by the two laboratories in respect of the blood of the complainant that question has not been resolved here in this case which could have been done by further cross checking of the blood of the complainant with the help of a third renowned and authenticated blood testing laboratory or with the opinion of the medical expert comprising of doctors of a medical board of Govt. Hospital of its Nephrology department but no such steps was taken during the trial by the complainant side.  Estimation of GFR for detection of kidney failure gradation was required.  The count of blood-urea is not found.  The attending doctor of complainant was a general physician and it is not found that the patient-complainant at the relevant time consulted any Nephrologist and no kidney profile was done, no ultrasonography of kidney was ever made and in this context Paragraph No. 8 of the affidavit-in-chief is pertinent to note where complainant deposed “After going through the diagnostic report of the patient, a doctor will start his treatment and if the report itself is wrong, that will lead to wrong and inappropriate treatment by the doctor”.  No treatment sheet/prescription after this report as alleged is found on case record.  So it is clear that complainant did not make further treatment of herself for her such ailment and moreover from the version of deposition quoted above it is palpably clear that about that report the complainant herself is not sure as to whether that was wrong or correct.  It is pertinent to note here that complainant has impleaded the pathological laboratory as the OP of this case but it is true that examination of blood was done by the pathologists who put their signature on the report after preparation of the same but they have not been made parties to this case.  Complainant has not called Dr. Anirudha Ghosh who treated her and whose prescription has been filed.  The whole controversy in the case hinges on the point whether the pathological report over creatinine-urine and creatinine-serum as held at the laboratory of the OP was correct or not.  During consideration over the issues it is true that the complainant has been a consumer as per definition of the term as mentioned in section 2(1)(d) of the Consumer Protection Act.1986. But the question of deficiency in service and that of unfair trade practice as allegedly brought against the OP-pathological laboratory, under the facts and circumstances of the case has not been proved here by the complainant where some anomalies are there in the version of the complainant as those are depicted and palpably clear from the petition of complaint and from the affidavit-in-chief while those are compared with the documents relating reports and prescription of the doctor of the complainant of the relevant time, Dr. Anirudha Ghosh. It has been held by the Hon’ble Supreme Court of India as reported in 2019(2) CPR 27(SC) that while treating doctor is guilty of medical negligence, the director of the Hospital cannot be held so.  It is settled principle of law that complainant is to prove his/her own case but here in this case complainant has failed to convince this Consumer Forum with any positive and cogent evidence to show even that the pathological report of the OP-laboratory has been prepared negligently without taking any care devoid of sincerity to the work of examination and thus we are  not of the view to hold that deficiency in service/unfair trade practice has been committed upon the complainant by the side of the OP.  As a result, complainant’s case fails.  All the three issues are thus disposed of. 

Proper fees paid.

 Hence, it is,

O R D E R E D,

that the instant Consumer Case No. 26-S-2018 be and the same is dismissed on ex-parte against the OP without cost and accordingly disposed of.

Let a copy of this final order/judgment be given/sent to the parties free of cost at once.