BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMRITSAR.
Consumer Complaint No. 546 of 2015
Date of Institution: 3.9.2015
Date of Decision: 11.5.2016
Smt. Harjinder Kaur wife of Sh. Parshotam Singh, aged about 28 years, daughter of Sh.Jagir Singh, resident of H.No. 454, B-Block, Railway Colony, Amritsar
Complainant
Versus
- New Asia Diagnostics, through its Prop./Partner/Person Incharge, 6-Albert Road, Near Circuit House, Amritsar
- Dr.J.P.Singh C/o New Asia Diagnostics, 6-Albert Road, Near Circuit House, Amritsar
Opposite Parties
Complaint under section 11 & 12 of Consumer Protection Act, 1986
Present: For the Complainant : Sh.Deepak Bhandari,Adv.
For the Opposite Parties : Sh.S.S.Channa,Advocate
Coram
Sh.S.S.Panesar, President
Ms.Kulwant Kaur Bajwa, Member
Sh.Anoop Sharma,Member
Order dictated by:
Sh.S.S. Panesar, President.
1. Smt. Harjinder Kaur complainant has brought the instant complaint under the Consumer Protection Act, 1986 on the allegations that the complainant got married with Sh.Parshottam Singh about 7 years back and out of said wedlock she is already having two daughters. The complainant was living a healthy life alongwith her family at her house. The complainant again got pregnant and she was under regular treatment of Dr. Deepika (Railway Hospital), Amritsar. Dr. Deepika suggested the complainant to get Ultrasonography conducted of the child in the womb. In this regard, complainant approached the opposite parties on 1.8.2015, where the Ultrasonography (ultrasound) of the complainant was conducted by the opposite parties. The ultrasonography was conducted by opposite party No.2 and after conducting the said ultrasonogrphy of the complainant opposite party No.2 handed over his report to the complainant, which reads as under :-
“ULTRASONOGRAPHY GESTATION SAC:-
Uterus is gravid & shows a single gestational sac having seen lying in the cervical region with mean sac diameter of 1.87 cms corresponding to gestation age of 6 week 2 day. (It is smaller than the period of amenorrhea).
No foetal node/Uold sac is seen.
Decidual reaction is poor.
Internal Os is closed.
Both ovaries are normal.
IMPRESSION :- MISSED ABORTION.”
2. It was diagnosed by opposite party No.2 that the child in the womb of the complainant has already expired and he suggested for the immediate abortion to the complainant, otherwise there could be danger to the life of the complainant. But complainant alongwith her husband were shocked to know about the diagnoses given by the opposite parties and they suffered a great mental tension and pain and ultimately keeping in view the diagnoses given by the opposite parties, complainant alongwith her husband decided to conduct the abortion of the foetus and they took the matter before the elders of their family members, who advised the complainant to take another diagnosis/Ultrasonography test report from some other Lab/Centre and in this regard complainant alongwith her husband approached Advanced Diagnostics, 17/8, Kennedy Avenue Market, The Mall, Amritsar on 4.8.2015, where Dr.Atul Kapoor conducted the Ultrasonography of the complainant and gave his report dated 4.8.2015 which reads as under:-
ULTRASONOGRAPHY REPORT TVS
Uterus is enlarged gravid and shows presence of a single IU gestation sac with the fetal pole showing normal cardiac activity. Mean gest age : 6 Wks 1 DAYS EDOD 28.3.16+/-10 DAYS.
IOS is closed
Both the adnexia and culdesac are normal.
IMPRESSION : VIABLE EARLY IU GESTATION
3. Dr. Atul Kapoor diagnosed and told the complainant that the foetus/child in the womb is good in condition and there is no problem at all which means and imply that the opposite parties had given a wrong and faulty diagnosis report to the complainant that the foetus/child in the womb has died which is sufficient to prove that the opposite parties have committed grave negligence and deficiency in service which caused great mental tension, pain, agony, harassment as well as monetary loss to the complainant. Had the complainant acted and believed on the faulty ultrasonography report given by the opposite parties and got aborted the foetus , it must have caused a serious prejudice to the complainant. It is in evidence that later on the complainant gave birth to a male child, who is of good health. The complainant has prayed for grant of following reliefs vide instant complaint :-
- That a compensation to the tune of Rs. 10,00,000/- may kindly be awarded to the complainant on account of pain, agony, harassment, monetary loss suffered by her due to the grave negligence in service on the part of opposite party ;
- That the license of the opposite party for running the Diagnostic centre or any other medical services may kindly be ordered to be cancelled on account of grave negligence in service on their part.
- That the litigation expenses to the tune of Rs. 33000/- may kindly be awarded to the complainant.
- Any other relief to which the complainant is found entitled under the law and equity may also be awarded to her.
Hence, this complaint.
4. Upon notice, opposite parties appeared and contested the claim by filing joint written statement taking certain preliminary objections therein inter-alia that the present complaint is not legally maintainable and the same is liable to be dismissed ; that the complainant has not approached the Forum with clean hands and is guilty of suppression of material facts from this Forum. Therefore, complainant is not entitled for any relief as claimed ; that the complainant is stopped by her own act and conduct from filing the present complaint ; that the complainant has filed the complaint against the opposite party with ulterior motive to take undue benefit ; that complaint has been filed without any cause of action , hence it is liable to be dismissed. On merits, it is admitted to the extent that complainant approached the opposite parties on 1.8.2015 where the opposite party No.2 conducted ultra-sonography of the complainant. It is also admitted that after conducting the said ultra-sonography of the complainant, opposite party No.2 handed over the said report. So far as the report of the ultrasound is concerned, it is submitted that the impression of the said report was “?Missed Abortion” , but due to technical error in printer that impression “?” could not figure over the ultrasound report. It is pertinent to mention that the complainant was referred by railway hospital for conducting the ultra-sonography of fetal well being which comes under the preview of PNDT Act, therefore, report of each and every ultrasound of fetal well being is also sent to the office of Civil surgeon by filling a form and the carbon copy of the same is kept in the record room of the centre showing that the opposite parties mentioned a diagnosis of the above mentioned ultra-sonography. This fact can also be verified from the office of the Civil Surgeon, Amritsar. Apart from that on 10.8.2015, opposite parties received a letter from the Senior Divisional Medical Officer, Northern Railway, Amritsar with regard to clarification of the above mentioned ultrasound which was duly replied, copy of the same is attached. It is worthwhile to mention over here that after conducting the ultra-sonography of the complainant, opposite party No.2 explained each and everything clearly and advised the complainant for repeat Trans Abdominal Sonography or Trans Vaginal Sonography. Therefore, the error in report of ultra-sonography was not intentional but due to technical problem in the printer. Opposite party is a qualified sinologist and is having a permission and registration for conducting the sonography by the appropriate authority. Copy of registration certificate and copy of letter of permission for doing ultra sonography is attached. Apart from that Dr. Jaipal performed numbers of ultrasound on that day, none was reported to be incorrect . It is further stated that so far as ultra-sonography report of Advanced Diagnostics dated 4.8.2015 is concerned, opposite parties submitted that it is not a report of Trans Abdominal Sonography, rather it is a report of Trans Vaginal Sonography which was advised by opposite party No.2 to the complainant after conducting the Trans Abdominal Sonography dated 1.8.2015. As per the paper presented in journal of pharmacy and bio-allied sciences, July-September 2011 Volume 3 Issue 3, from the last two decades, Ultrasound has become an essential diagnostic modality in the field of obstetrics for evaluation of pregnancy and fetal well being, however, the standard trans abdominal scanning using lower frequency with relatively poorer axial resolution is unsuitable for imaging first trimester conceptus. The introduction of higher frequency trans-vaginal probe that can be placed to the pelvic organ and has better resolution, has opened entirely new possibility to study in detail the early gestation. As per this report TVS reliable in identifying normal and abnormal pregnancy and various develop mental markers as an earlier stage than with TAS. It is stated that the complainant is confused with TAS (Trans Abdominal Sonography) and TVS (Trans Vaginal Sonography). Whereas the test conducted on the complainant was TAS and as such the complainant was advised for TVS. The complainant has no cause of action to file the present complaint and a prayer for dismissal of the complaint with cost was made.
5. In her bid to prove the case complainant tendered into evidence her affidavit Ex.CW1/A, copy of ultrasonography report dated 1.8.2015 Ex.C-1, copy of X-ray film Ex.C-2, copy of ultrasonography report dated 4.8.2015 Ex.C-3, copy of X-ray film Ex.C-4, copy of ultrasound report dated 28.10.2015 Ex.C-6, copy of ultrasound image Ex.C-6, copy of the routine check up card of Ano Care Clinic Ex.C-7, copy of prescription slip of Baba Budha Clinic dated 21.10.2015 Ex.C-8, copy of the prescription slip of Jai Kamal Hospital Ex.C-9, copy of the admit and discharge card Ex.C-10.
6. Opposite Parties tendered into evidence affidavit of Dr.Jaipal Singh Ex.OP1,2/1, affidavit of Dr.Gian Singh Shergill Ex.OP1,2/2, permission letter for conducting ultrasonography dated 10.6.2013 Ex.OP1,2/3, copy of certificate of registration issued by competent authority of PNDT dated 13.11.2013 Ex.OP1,2/4, copy of reply dated 13.8.2015 of letter dated 10.8.2015 Ex.OP1,2/5, copy of letter dated 10.8.2015 Ex.OP1,2/6, copy of ultrasonography report dated 1.8.2015 Ex.OP1,2/7, copy of outpatient record of complainant Ex.OP1,2/8, copy of PNDT form of complainant’s report dated 1.8.2015 Ex.OP1,2/9, copy of renewal agreement of New Asia Diagnostics, Amritsar Ex.OP1,2/10.
7. We have heard the ld.counsel for the parties and have carefully gone through the record.
8. It has been vehemently contended by the ld.counsel for the opposite parties that although it is not disputed that the complainant approached the opposite parties on the recommendation of Dr. Deepika (Railway Hospital) Amritsar to conduct ultrasonography of the child in the womb of the complainant. On 1.8.2015 ultra-sonography of the complainant was conducted by the opposite parties and after conducting the said test on the complainant, opposite party No.2 handed over the report to the complainant which reads as under:-
“ULTRASONOGRAPHY GESTATION SAC:-
Uterus is gravid & shows a single gestational sac having seen lying in the cervical region with mean sac diameter of 1.87 cms corresponding to gestation age of 6 week 2 day. (It is smaller than the period of amenorrhea).
No foetal node/Uold sac is seen.
Decidual reaction is poor.
Internal Os is closed.
Both ovaries are normal.
IMPRESSION :- MISSED ABORTION.”
9. Opposite party No.2, however, told the complainant that the child in the womb of the complainant has already died and he suggested for immediate abortion. However, when the complainant went for rescanning i.e. Trans Vaginal Sonography to Advanced Diagnostic, Kennedy Avenue,Amritsar, where Dr.Atul Kapoor conducted ultrasonography of the complainant and gave his report dated 4.8.2015 which reads as under:-
ULTRASONOGRAPHY REPORT TVS
Uterus is enlarged gravid and shows presence of a single IU gestation sac with the fetal pole showing normal cardiac activity. Mean gest age : 6 Wks 1 DAYS EDOD 28.3.16+/-10 DAYS.
IOS is closed
Both the adnexia and culdesac are normal.
IMPRESSION : VIABLE EARLY IU GESTATION
10. By filing the present complaint, complainant alleges that opposite parties have given a wrong and faulty Ultrasonography report to the complainant that the child in her womb had died which was sufficient to prove that the opposite parties have committed gross negligence and deficiency in service. It is further alleged that it caused great mental tension, pain, agony, harassment as well as monetary loss to the complainant. However, it is worthwhile to mention here that the complainant approached the opposite parties as a referral patient and the test was conducted by opposite party No.2 . Dr. J.P.Singh after conducting said ultrasonography test gave report to the complainant. Dr.J.P.Singh advised the complainant to go in for TVS. So far as report of ultra-sonography is concerned, it is contended that impression of the report was “?Missed Abortion”. But due to technical error in printer the impression “?” was not printed on the report of the complainant. This is crystal clear that it was a technical error in the printer that impression ‘?” could not appear on the report. Opposite party No.2 is a qualified sinologist and is fully competent to perform sonography under the permission given by the Civil Surgeon, copy of the permission letter is Ex.OP1,2/3. It has been further contended that on 10.8.2015, opposite parties received a letter from the Senior Divisional Medical Officer, Northern Railway, Amritsar with regard to clarification of the above mentioned matter which was duly replied , copy of the same is Ex.OP1,2/5. After taking reply of opposite parties into consideration, the Northern Railways renewed the agreement of the opposite parties for the period 1.12.2015 to 30.11.2016 which is also sufficient to prove that the report of the said ultrasound was not given wrong/faulty, but it was only due to technical error in printer.
11. It has been further contended that the report of the test conducted by Dr.Atul Kapoor at Advance Diagnostics is not a report of TAS (Trans Abdominal Ultrasonography) rather it is a report of TVS (Trans Vaginal Sonography) which was advised by opposite party No.2 to the complainant at the time of conducting the first TAS ultrasonography dated 1.8.2015. A reference to the journal/paper has also been made by the counsel for the opposite parties to impress upon that TAS and TVS cannot be compared with each other , results reported by TVS are more accurate than those of TAS. It is contended that complaint has got no force and therefore, complaint is liable to be dismissed.
12. But ,however, from the appreciation of facts and circumstances of the case, it becomes evident that ultrasound report Ex.C-1 conducted by opposite party No.2 was in-accurate. This fact has been impliedly admitted by the opposite parties by saying that “?” was required to be suffixed before conclusive report which could not be mentioned due to the fault in the printer. Further more, opposite parties have tried to confuse the matter by stating that the report of TAS could not be compared with the report of TVS . If opposite party No.2 was not sure about the accuracy of the report of TAS, he must have gone for TVS report on the complainant then and there or could advise vide that report itself i.e. Ex.C-1. But,however, a perusal of the report Ex.C-1 goes on to show that a definite report regarding the present status of the fetus was given in clear & unequivocal terms that the child in womb had died & the patient should go in for immediate abortion. The fact that complainant was advised by opposite party No.2 to go in for TVS also appears to be an after thought because everything was required to be mentioned in the test report in black and white. However, nothing of the sort was done by opposite party No.2 for the reasons best known to him . It is further proved from evidence on record that on the basis of TVS report, the fetus was found to be well and it was in perfectly good healthy condition and it also shows that there was no medical problem at all. It is the case of the complainant that after going through the report of TAS Ex.C-1, complainant and his family suffered a great mental shock and trauma and they also suffered mental tension, pain, agony, harassment as well as monetary loss. Even, otherwise also, when a pregnant woman, in ordinary circumstances is confided with on the basis of the medical report, that her fetal has already died and abortion was immediately required, her state of mind can only be imagined than described. Reliance in this respect can be placed on Vipin & others Vs. Dr.Ravindera Goyal & Others 2014(1) CLT 432 Uttarakhand State Consumer Disputes Redressal Commission, Dehradun wherein it has been held that if there was any doubt in the mind of opposite party No.1, he should have advised the complainant to have a second opinion in the matter, but as is stated above, instead of accepting his negligence, the opposite party No.1 went on saying that the report issued by him is correct. From the facts and evidence on record, the medical negligence on the part of opposite party No.1 is clearly established.
13. From the aforesaid discussion, it transpires that opposite party No.2 is negligent in performing his duties as a sonographer while giving report Ex.C-1 on the fetal status of the complainant. While opposite party No.1 being the employer of opposite party No.2 is vicariously liable for the tortious act of opposite party No.2.
14. Keeping in view the trauma and mental shock as well as monetary loss to the complainant, complainant in our opinion is entitled to the compensation to the tune of Rs. 1,00,000/-. She is also entitled to litigation expenses to the tune of Rs. 5000/- . Both opposite parties No.1 & 2 are held jointly and severally liable to pay the awarded amount within a period of 30 days from the receipt of copy of this order ; failing which, awarded amount shall carry interest @ 9% p.a from the date of passing of the order until full and final recovery. Copies of the orders be furnished to the parties free of costs. File is ordered to be consigned to the record room. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum.
Announced in Open Forum
Dated : 11.05.2016
/R/ ( S.S.Panesar )
President
( Kulwant Kaur Bajwa) (Anoop Sharma)
Member Member
