PER:
Sh. Charanjit Singh, President
1 The present complaint has been received from the District Consumer Disputes Redressal Commission Amritsar by the order of the Hon’ble State Consumer Disputes Redressal Commission Punjab, Chandigarh for its disposal.
2 The complainant has filed the present complaint by invoking the provisions of Consumer Protection Act under Section 12 and 13 against the opposite parties on the allegations that the complainant was not feeling well on 9.9.2017 as he was having acute pain in his stomach and due to this reason the complainant approached Dr. Rajiv Mehra for his consultation and the said doctor advised him for ultrasound. Thereafter, the complainant approached the opposite party for conducting ultrasound and ultrasound was done by the opposite party on 9.9.2017 after receiving the requisite amount from the complainant and opposite party conducted ultrasound and as such, the complainant fall within the category of consumer. After conducting the ultrasound of the complainant, the opposite party gave his report dated 9.9.2017 and in his report the opposite party has stated “The liver is normal in size and normal shape and smooth margins. Echo texture appears normal. Intrahepatic biliary redicless are normal. Portal vein is normal. No pathology is detected in porta hepatic. Hypoechoic SOL measuring 40x19 mm is seen in relation to right lobe of liver and further in the last it has been stated Features are suggestive of sol right lobe of liver. The complainant was shocked after receiving the report. Thereafter, he immediately consulted with his Dr. Rajiv Mehra and shown his report to him who after receiving the report started his treatment for the same. As the condition of the complainant did not improve thereafter, he again consulted with his doctor and who after seeing the report advised him for further ultrasound from some other lab and after conducting the ultrasound from Randhawa Ultrasound Centre lab (the copy of which is attached). It has transpired that the ultrasound report given by the opposite party is a false one which is great negligence, unfair trade practice on the part of the opposite parties which has caused an immense harassment and shock to the complainant as well as his family members. After receiving the report dated 9.9.2017 the complainant has not slept for three / four days as he was under the impression that he is to be operated soon and due to this reason he went into depression. The act of the opposite party is very negligent which has caused such harassment to the complainant and the act amounts to unfair trade practice. The complainant has prayed that the complaint of the complainant may kindly be accepted and the license of the opposite party to conduct ultrasound be closed and the complainant may kindly be granted a compensation of Rs. 5 Lacs for the agony and harassment which he has suffered due to the false report given by the opposite party and further as sum of Rs. 11,000/- may also be awarded as cost of litigation in the interest of justice, equity and fairplay.
3 After formal admission of the complaint, notice was issued to opposite party and opposite party appeared through counsel and filed written version and contested the complaint by interailia pleadings that the complaint is nothing but flagrant absence of the process of law. The only motive of the complainant is to cause harassment and humiliation to the opposite party and to extort money from him by abusing the process of law. There is no deficiency in the services rendered by the opposite party to the complainant . The opposite complaint is totally unwarranted, uncalled for and liable to be summarily dismissed under Section 26 of the Consumer Protection Act, 1986 being frivolous and vexatious. The complainant has not come to this commission with clean hands. He has suppressed and material facts from the notice of this commission, as such, he is otherwise not entitled to any relief whatsoever. The claim of the complainant is based on total falsehood and he is trying to take benefit of his own wrongs. The complainant has no cause of action to file present complaint. Infact, he has concocted false facts just to make out a suitable case with an intention to obtain favourable orders by twisting and suppression of true and material facts. Otherwise, too no cause of action has been mentioned in the complaint itself. The complainant has not placed on record the original and complete record pertaining to his treatment and disease so this complaint is liable to be dismissed on this score alone. The complainant has not produced and provided the documents to the opposite party insptie of demand by the opposite party so the adverse inference be kindly drawn against the complainant. The lesion under medical literature is a very broad term which means abnormal change in the structure of an organ. When the complainant was scanned it was found that there was an abnormal change in the echo pattern of the sound waves reflected back from the Liver. The reflected sound waves detected a localized area of 44x17 mm which was less dark as compared to the surrounding areas i.e. it was labeled hypoechoic lesion. Now there are dozens of reasons for this change where liver is focally less dark as compare to surrounding areas so for in order to diagnose the exact reason out of the big classification of SOL Liver the complainant was advised to undergo C.E.C.T. to exactly known the reason for change in echogenicity. The prescription slip is of 8.9.2017 whereas the sonography of the complainant was done on 9.9.2017. So question of treatment does not arise. The report of the Randhawa Ultrasound Centre also clearly indicates that an Area of fat sparing measuring 47x25x20 MM is seen in right lobe just superior to gallbladder which is solid and the irregular and this detected fat sparing solid area also falls in the classification of SOL Liver. The complainant was advised by the opposite party to undergo CECT in order to know the reason for the Hypoechoic lesion. Even on the prescription slip attached Dr. Rajiv Mehra clearly indicate that the complainant was advised to undergo for CECT Test, the same test which was advised by the opposite party to the complainant. No doctor advised him to undergo surgery or any treatment. The presumption regarding operation is a self creation of the complainant just to win the sympathy of the commission. The correct report has been given by the opposite party and it is hard to believe why the complainant is raised hue and cry. The opposite party reserves its right to file a case of damages and defamation against the complainant in a competent court of law. The opposite parties have denied the other contents of the complaint and prayed for dismissal of the same.
4 To prove his case, Ld. counsel for the complainant has placed on record affidavit of complainant Ex. C-1 alongwith documents i.e. copy of payment receipt of Dhillon Ultrasound Centre dated 10.9.2017 Ex. C-2, copy of the report of Dhillon Ultrasound Centre Ex. C-3, copy of the report dated 12.9.2017 of Randhawa Ultra sound Centre Ex. C-3, copy of the report dated 12.9.2017 of Randhawa Ultrasound Centre Ex. C-4, copy of the payment receipt of Naveen Hospital dated 9.9.2017 Ex. C-5, copy of report of Naveen Hospital Ex. C-6, copy of the prescription of Dr. Rajeev Mehra Ex. C-7, sonography conducted by Dr. Naveen Hospital Ex. C-8, its report Ex. C-9, sonography image card of Dhillon Ultrasound Scan Ex. C-10, and its report Ex. C-11, report of Randhawa Ultrasound Centre Ex. C-12, sonography image Ex. C-13 and closed the evidence of complainant. On the other hands, Dr. Pankaj Kumar tendered in evidence his affidavit Ex. OP1/A along with documents Ex. OP1 to Ex. OP3, affidavit of Dr. Naveen Ex. OP2/A, copy of ultrasound picture done by Dr. Naveen Ex. OP5, copy of ultrasound done by Randhawa Hospital Report Ex. OP6 and closed the evidence.
5 We have heard the Ld. counsel for the parties and have gone through the record on the file.
6 Ld. counsel for the complainant contended that the complainant was not feeling well on 9.9.2017 as he was having acute pain in his stomach and due to this reason the complainant approached Dr. Rajiv Mehra for his consultation and the said doctor advised him for ultrasound. Thereafter, the complainant approached the opposite party for conducting ultrasound and ultrasound was done by the opposite party on 9.9.2017 after receiving the requisite amount from the complainant and opposite party conducted ultrasound and as such, the complainant fall within the category of consumer. He further contended that after conducting the ultrasound of the complainant, the opposite party gave his report dated 9.9.2017 Ex. C-6 and in his report the opposite party has stated “The liver is normal in size and normal shape and smooth margins. Echo texture appears normal. Intrahepatic biliary redicless are normal. Portal vein is normal. No pathology is detected in porta hepatic. Hypoechoic SOL measuring 40x19 mm is seen in relation to right lobe of liver and further in the last it has been stated Features are suggestive of sol right lobe of liver. The complainant was shocked after receiving the report. Thereafter, he immediately consulted with his Dr. Rajiv Mehra and shown his report to him who after receiving the report started his treatment for the same. As the condition of the complainant did not improve thereafter, he again consulted his doctor and who after seeing the report advised him for further ultrasound from some other lab and after conducting the ultrasound from Randhawa Ultrasound Centre lab Ex. C-4. It has transpired that the ultrasound report given by the opposite party is a false one which is great negligence, unfair trade practice on the part of the opposite parties which has caused an immense harassment and shock to the complainant as well as his family members. After receiving the report dated 9.9.2017 the complainant has not slept for three / four days as he was under the impression that he is to be operated soon and due to this reason he went into depression. The act of the opposite party is very negligent which has caused such harassment to the complainant and the act amounts to unfair trade practice and prayed the present complaint may be allowed.
7 Ld. counsel for the opposite party contended that there is no deficiency in the services rendered by the opposite party to the complainant. The opposite complaint is totally unwarranted, uncalled for and liable to be summarily dismissed under Section 26 of the Consumer Protection Act, 1986 being frivolous and vexatious. The complainant has not come to this commission with clean hands. The claim of the complainant is based on total falsehood and he is trying to take benefit of his own wrongs. The complainant has not produced and provided the documents to the opposite party insptie of demand by the opposite party so the adverse inference be kindly drawn against the complainant. The lesion under medical literature is a very broad term which means abnormal change in the structure of an organ. When the complainant was scanned it was found that there was an abnormal change in the echo pattern of the sound waves reflected back from the Liver. The reflected sound waves detected a localized area of 44x17 mm which was less dark as compared to the surrounding areas i.e. it was labled hypoechoic lesion. Now there are dozens of reasons for this change where liver is focally less dark as compare to surrounding areas so for in order to diagnose the exact reason out of the big classification of SOL Liver the complainant was advised to undergo C.E.C.T. to exactly known the reason for change in echogenicity. The prescription slip is of 8.9.2017 whereas the sonography of the complainant was done on 9.9.2017. So question of treatment does not arise. The report of the Randhawa Ultrasound Centre also clearly indicates that an Area of fat sparing measuring 47x25x20 MM is seen in right lobe just superior to gallbladder which is solid and the irregular and this detected fat sparing solid area also falls in the classification of SOL Liver. The complainant was advised by the opposite party to undergo CECT in order to know the reason for the Hypoechoic lesion. Even on the prescription slip attached Dr. Rajiv Mehra clearly indicates that the complainant was advised to undergo for CECT Test, the same test which was advised by the opposite party to the complainant. No doctor advised him to undergo surgery or any treatment. The presumption regarding operation is a self creation of the complainant just to win the sympathy of the commission. The correct report has been given by the opposite party and it is hard to believe why the complainant is raised hue and cry. The opposite party reserves its right to file a case of damages and defamation against the complainant in a competent court of law and prayed for dismissal of the complaint.
8 In the present case, it is not clear that what type of negligence has been done by the opposite party. The complainant has nowhere stated in his complaint that what kind of negligence is there on the part of the opposite party. No specific allegation has uttered in the complaint against treating and other doctor who has performed the ultrasound. The complainant has also not brought on record any third ultrasound report which show that the report of the complainant was not correct and report gave by Randhawa Ultrasound Centre was correct.
9 Now the question arises as to whether Opposite Parties No.1 and 2 have been negligent in the instant case or not?. In this regard, we shall have to see what is meant by negligence or medical negligence. Reference in this context can be made to the observations made in Jacob Matahew Vs. State of Punjab & Anr (2005) 6 SCC 1, decided on 05.08.2005 by Hon’ble Supreme Court of India as follows:-
(2) Negligence in the context of medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed.
10 The question of medical negligence also came up for hearing before the Hon’ble Apex Court in Kusam Sharma & Others. Vs. Batra Hospital & Medical Research Centre 2010 AIR (SC) 1050 wherein following principles were laid down as under:-
I. Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.
II. Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.
III. The medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires.
IV. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
V. In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.
VI. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence.
VII. Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.
VIII. It would not be conducive to the efficiency of the medical profession if no Doctor could administer medicine without a halter round his neck.
IX. It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessary harassed or humiliated so that they can perform their professional duties without fear and apprehension.
X. The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals/hospitals particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners. XI. The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals.
In V.Krishan Rao appellant (s) Vs. Nikhil Super Specialty Hospital & Another Respondents(s), Civil Appeal No. 2641 of 2010 decided on 08.03.2010 by Hon’ble Apex Court it has been laid down to the following effect:-
"A Doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art"...(See page 122 placitum `B' of the report)
18. It is also held that in the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and a doctor is not negligent merely because his conclusion differs from that of other professional men. It was also made clear that the true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care (See page 122, placitum `A' of the report).”
11 Applying the principles of the judgements ‘supra’ to the facts of the present case, it becomes amply clear that the doctor has treated the complainant in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art and as such Opposite Parties No.1 and 2 cannot be guilty of the negligence. Not only that, no ingredient of negligence have either been pleaded nor any evidence was brought to prove any negligence allegedly made by Opposite Parties No.1 and 2 during the course of treatment. It is clearly written in the prescription slip of Dr. Rajiv Mehra to undergo for CECT Test and same test was mentioned in the report of the opposite party also, it indicates that both the doctors want to reach on some concrete conclusion after CECT test. Further complainant has also failed to place on record as to which doctor has suggested him to undergo the surgery. The complainant consulted Dr. Mehra on dated 8.9.2017 and as per his advice ultrasound was conducted on dated 9.9.2017 and after a gap of one day only second ultrasound was conducted by Dhillon Scan Centre. Thereafter another ultrasound was conducted by Randhawa Ultrasound Centre on dated 12.9.2017. Perusal of ultrasound reports seem that all are contradictory to each other. Dr. Mehra has rightly advised for CECT test as recommended by Dr. Naveen. However, complainant failed to explain how the complainant has taken the treatment in one day and which doctor has suggested surgery for the same. Hence the complainant has miserably failed to prove the negligence on the part of the opposite party. The complainant wants this District Consumer Commission to jump to the conclusion that Opposite Parties No.1 and 2 were guilty of the negligence simply because of the fact that desired result could not be achieved despite getting medical treatment as prescribed by Opposite Parties No.1 and 2. We have every reason to differ with the contention of the complainant in view of the latest law laid down in V.Krishna Rao authority ‘supra’ and other relevant laws laid down in remaining authorities referred above. We are of the considered with that the complainant has miserably failed to prove any negligence on the part of Opposite Parties No.1 and 2 nor there is any evidence regarding deficiency in service on the part of Opposite Parties No.1 and 2. There is absolutely no force in the complaint and the same requires to be dismissed.
12 In view of above discussion, the present complaint is dismissed being devoid of merits. The parties are left to bear their own costs. Copy of order will be supplied by the District Consumer Disputes Redressal Commission, Amritsar as per rules. File be sent back to the District Consumer Disputes Redressal Commission, Amritsar.
Announced in Open Commission
26.08.2022
