IN THE COURT OF THE LD. DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT S I L I G U R I.

CONSUMER CASE NO. : 14/S/2015.                           DATED : 21.09.2017.   

BEFORE  PRESIDENT              : SMT. KRISHNA PODDAR,

                                                              President, D.C.D.R.F., Siliguri.

                      MEMBER                : SMT. PRATITI BHATTACHARYYA.

COMPLAINANT    1.       : SMT. KAKOLI  GHOSH @ KAKALI GHOSH,

  W/o Sri Goutam Kumar Ghosh,

  9/3, Baghajatin Park, Opposite Manasa Mandir,

  P.O. & P.S.- Siliguri, Dist.- Darjeeling.

O.Ps.              1.                       : OMEGA DIAGNOSTICS,

   Children Park, Siliguri, 

   P.O. & P.S.- Siliguri, Dist. Darjeeling – 734 001. 

                                    2.                     : DR. PARTHA PRATIM DEV, MD

  Consultant Radiologist,

  Omega Diagnostics,

  Children Park, Siliguri, 

   P.O. & P.S.- Siliguri, Dist. Darjeeling – 734 001.    

FOR THE COMPLAINANT         : Sri Monojit Roy, Advocate.

J U D G E M E N T

Smt. Krishna Poddar, Ld. President.

The facts of the complaint case in brief are that on 21.01.2014 the complainant underwent Laparoscopic Cholecystectomy at Fortis Hospital and Kidney Institute, 111-A, Rash Behari Avenue, Kolkata – 700 029 under care and treatment of Dr. Suddhasattwa Sen and after said operation, since the month of August, 2014 the complainant developed certain abdominal pain and accordingly showed herself to Dr. Ila Chakraborty, BHMS (Kol), Kadamtala, Jalpaiguri and said Dr. Ila Chakrabory advised her to undergo ultrasonography of KUB.  Accordingly the complainant on 14.10.2014 underwent ultrasonography of KUB at OP No.1’s diagnostic centre under OP No.2 and the OPs have received monitory consideration for the same.  As per report of ultrasonography issued by OPs being RID No.23076 dated 14.10.2014 there stood 11 mm calculus in lower calyx of the complainant with conclusion of right Nephrolithiasis.  The complainant on 03.11.2014 showed herself to Dr. Amlan Chakraborty, MS. FRCS urologist at

Contd…..P/2

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Microlap, 24, Bepin Pal Road, Kolkata – 700 026 who advised her to undergo Intravenous Urography (IVU).  Accordingly on 04.11.2014 i.e., within 21 days from 14.10.2014 the complainant underwent Intravenous Urography (IVU) at Quadra Medical Services Pvt. Ltd., 53, Hazra Road, Kolkata- 19 and surprisingly as per report dated 04.11.2014 of Intravenous Urography (IVU) being ID No.K04153 there was no calculus in any of her kidneys.  On visit to said Dr. Amlan Chakraborty by the complainant with the said Intravenous Urography report, said Dr. Chakraborty told the complainant that she did not carry any calculus in any of her kidneys and whatever pain she felt is related to her post cholecystectomy problem and advised her to adopt certain dietary precautions and she was never advised any treatment for any nephrolethiasis at any material point of time by said Dr. Amlan Chakraborty.  Following the advice of Dr. Amlan Chakraborty the complainant started to feel much better and relieved and at present the complainant enjoys a healthy daily life.

From the above facts it can be safely concluded that the complainant at no material point of time carried any calculus in any of her kidneys and the report dated 14.10.14 issued by the Ops is absolutely a wrong report and there is serious negligence from the end of the OPs in carrying out the said pathological test and examination of the complainant’s KUB.  Had the complainant not taken the decision to visit Dr. Amlan Chakraborty and undergo the Intravenous Urography at Quadra Medical Services Pvt. Ltd., there was every possibility that the complainant would have been operated on the basis of the said report dated 14.01.14 being RID No.23076 issued by the OPs leading to her fatal consequences.  Kidney is one of the vital organs of a human body and the OPs have not taken the utmost care and attention in examination of the same of the complainant underlying callous and high handed actions and conduct from the OPs end towards the complainant and following such negligence and deficiency in service from the OPs’ end the complainant is confronted with mental pain, agony, frustration and disappointment for which the OPs are liable. 

In furtherance of the complainant’s visit at ‘Microlap’ to said Dr. Amlan Chakraborty and for her pathological test at Quadra Medical Services Pvt. Ltd. as per advice of Dr. Amlan Chakraborty she has incurred a total medical expense of R.4,000/- and against her journey to and from Kolkata to Siliguri and fooding, lodging and transport at Kolkata consequent to her said visit to said Dr. Amlan Chakraborty and other pathological tests she has incurred an expense of Rs.13,000/- amounting to a gross total expenses of Rs.17,000/- which the OPs are liable to pay to the complainant for the aforementioned negligence and deficiency in service towards the complainant. 

Contd…..P/3

-:3:-

On 06.12.2014 the complainant sent a legal notice under Registered Post with A/D calling upon the OPs to refund the complainant the charge taken by the OPs for the Ultrasonography of KUB of the complainant along with 18 % interest from the time it fell due until realisation, the gross total expense of Rs.17,000/- incurred by the complainant and further compensation of Rs.2,00,000/- for the mental pain, agony, disappointment and harassment faced by the complainant within 15 days from the receipt of the said notice and the said notice has been duly received by the OPs on 08.12.2014 but the OPs till this day did not bother to send any reply to the same and accordingly the complainant finding no other alternative has come before this Forum for proper redress. 

The OP Nos.1 & 2 have entered appearance and contested the case by filing a written version wherein the material averments made in the complaint petition have been denied and it has been contended inter-alia that the instant case is not maintainable. 

It has been stated by the OPs that the complainant underwent an ultrasonography of KUB on 14.10.14 carried out at OP No.1 vide RID No.23076 dated 14.10.2014 and the report indicated that a 11 mm calculus in lower calyx with conclusion of Nephrolithiasis.  It has been further stated by the OPs that there is a high chance of a calculus (stone) passing out of a person bodily system depending on the size and position of the said calculus without any medical treatment and hence there was all possibility that the calculus (stone) detected in the right kidney of the complainant passed out from her bodily system by the time she underwent Intravenous Urography at Quadra Medical Services Pvt. Ltd. on 04.11.2014 at Kolkata.  It has been further contended by the OPs that the decision of doing surgery is taken by a surgeon after consideration of several factors including clinical co-relation and there was no callus and or high handed action on the part of the OP towards the complainant nor was or has there been any negligence, dishonest intention or deficiency in service on the part of the OP No.2 and accordingly he is not liable for any mental pain, agony, frustration, and disappointment suffered by the complainant.  It has been further contented by the OPs that the medical report of the complainant’s ultrasonography of KUB was not incorrect or unreliable and the complainant is highly unaware that the kidney stone have the possibility of passing out of a person’s bodily system depending on it’s size and position.  It has been further contented by the OPs that there was no cause of action arose for filing this case and accordingly complainant is not entitled to get any relief/reliefs as prayed for and the complainant’s case is liable to be dismissed.      

Contd…..P/4

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To prove the case complainant has filed the following documents :-

1.       Discharge Summary dated 23.01.2014 of the complainant issued by Fortis Hospital and Kidney Institute, 111A, Rash Behari Avenue, Kolkata – 700 029.

2.       Prescription dated 12.08.2014 of Dr. Ila Chakraborty.

3.       Report dated 14.10.2014 being RID No.23076 issued by the OPs.

4.       Prescription of Dr. Amlan Chakraborty and Money Receipt No.5909 dated 03.11.2014 and Money Receipt No.782 dated 03.11.2014.

5.       Report from Quadra Medical Services Pvt. Ltd. dated 04.11.2014 being ID No.K04-153.

6.       Money Receipt No.53/14K03/536 dated 03.11.2014 issued by Quadra Medical Services Pvt. Ltd.

7.       Money Receipt No.53/14K04/153 dated 04.11.2014 issued by Quadra Medical Services Pvt. Ltd.

8.       Legal notice dated 06.12.2014 under registered post with A/D along with postal receipt No.RW191627912IN dated 06.12.2014 and RW191627926IN dated 06.12.2014.   

OP No.2 has filed the following documents :-

1.       Photocopy of the legal notice from advocate Bijay Saha to Sri Monojit Roy, advocate, Siliguri.  Along with postal receipt and AD card dated 16.01.2015.

2.       Photocopy of print out from the British Journal of Radiology in respect of Kidney Stone Symptoms and diagnosis.

3.       Photocopy of print out from the website of Meds cape in respect of Nephrolithiasis Treatment and Management. 

          Complainant has filed examination-in-chief.

Complainant has filed written notes of argument.

          OP Nos.1 & 2 have not filed examination-in-chief.

          OP Nos.1 & 2 have filed written notes of argument.

Points for determination

1.       Is there any medical negligency on the part of the OPs ?

2.       Is the complainant entitled to get relief/reliefs as prayed for ?

Decision with reason

          Both issues are taken up together for the brevity and convenience of discussion.

Contd…..P/5

-:5:-

The brief facts of the complaint case are that on 21.01.2014 complainant underwent laparoscopic cholecystectomy at Fortis Hospital and Kidney Institute, 11-A, Rash Behari Avenue, Kolkata – 29 and after her said operation since the month of August, the complainant developed certain abdominal pain and as such showed herself to Dr. Ila Chakraborty, BHMS (Kol), Kadamtala, Jalpaiguri and said doctor advised her to undergo ultrasonography of KUB.  Accordingly, the complainant on 14.10.2014 underwent ultrasonography of KUB at OP No.1 Omega Diagnostics under OP No.2 Dr. Partha Pratim Dev.  As per report of the said ultrasonography issued by OPs being RID No.23076 dated 14.10.2014 there stood 11 mm calculus in lower calyx of the complainant with conclusion of right nephrolithiasis.  After receipt of the report on 03.11.2014 the complainant showed herself to Dr. Amlan Chakraborty, MS, FRCS, urologist at Microlap Kolkata and Dr. Amlan Chakraborty advised the complainant to undergo Intravenous Urography (IVU) and on 04.11.2014, the complainant underwent Intravenous Urography at Quadra Medical Services Pvt. Ltd., Hazra Road, Kolkata-19 and as per report dated 04.11.2014 of said Intravenous Urography (IVU) being ID No.K04-153 there was no calculus in any of her kidneys and on visit to said Dr. Amlan Chakraborty with the said report by the complainant, Dr. Chakraborty told her that she did not carry any calculus in any of her kidneys and whatever abdominal pain she felt is related to her post cholecystectomy problem and advised her to adopt certain dietary precautions and she was never advised any treatment for any nephrolithiasis at any material point of time by Dr. Amlan Chakraborty.  Following advice of Dr. Amlan Chakraborty the complainant started to feel much better and relieved and at present the complainant enjoys a healthy daily life. 

It has been asserted by the complainant that the complainant at no material point of time carried any calculus in any of her kidneys and the report dated 14.10.2014 being RID No.23076 issued by the OPs is absolutely a wrong report and there was serious negligence from the end of the OPs in carrying out the said pathological (ultrasonography test) and examination of the complainant’s KUB.  Had the complainant not taken the decision to visit Dr. Amlan Chakraborty and undergo the Intravenous Urography (IVU) at Quadra Medical Services Pvt. Ltd. there was every possibility that the complainant would have been operated on the basis of the said ultrasonography report leading to her fatal consequences.  Following such deficiency in service from the OPs’ end, complainant is confronted with mental pain, agony, frustration, and disappointment for which the OPs are liable. 

Contd…..P/6

-:6:-

The OP No.1 & 2 on the other hand claimed that complainant underwent an ultrasonography of KUB on 14.10.2014 carried out at the OP No.1 vide RID No.23076 dated 14.10.2014 at Omega Diagnostic and that report indicated a 11 mm calculus in lower calyx with conclusion of right nephrolithiasis, but there is a high chance of a calculus (stone) passing out of a person’s bodily system, depending on the size and position of the said calculus without any medical treatment for the same and hence, there was all possibility that the 11 mm calculus detected in the right kidney of the complainant passed out from her bodily system by the time she underwent IVU at Quadra Medical Services Pvt. Ltd. Kolkata on 04.11.2014.  The OPs have further stated that the decision of doing surgery is taken by a surgeon after consideration of several factors including clinical correlation and it is wrong to presume that the complainant could take the decision of surgery herself.

The fact not in dispute is that on 14.10.2014 the complainant underwent ultrasonography of KUB at OP No.1’s Diagnostic Centre under OP No.2 and as per report of ultrasonography issued by the OPs bearing RID No.23076 dated 14.10.2014 there detected 11 mm calculus in lower calyx of the complainant with conclusion of right nephrolithiasis.   

In this case the complainant herself is examined as PW No.1.  Moreover the complainant has submitted a good number of documents including the report dated 14.10.2014 being RID No.23076 issued by the OPs.  On perusal of the said ultrasonography report being RID No.23076 dated 14.10.2014 issued by OPs it appears that there stood 11 mm calculus in lower calyx of the complainant with conclusion of right nephrolithiasis.  The complainant has submitted the prescription of Dr. Amlan Chakrabroty, urologist, Kolkata who prescribed her for Intravenous Urography (IVU) and report of Intravenous Urography (IVU) dated 04.11.2014 issued by Quadra Medical Services Pvt. Ltd., Hazra Road, Kolkata.  On perusal of the said Intravenous Urography (IVU) report being ID No.K04153 it appears that there is no calculus in any of the kidney of the complainant.  Complainant’s case is that she again visited Dr. Amlan Chakraborty with the Intravenous Urography (IVU) report and on perusal of the said report Dr. Amlan Chakraborty told her that she did not carry any calculus in any one of her kidneys and advised her to adopt certain cholecystectomy dietary precautions and she was never advised any treatment for any nephrolithiasis at any material point of time by said Dr. Amlan Chakraborty and following his advice the complainant started to feel much better and relieved and at present she enjoys a healthy daily life. 

Contd…..P/7

-:7:-

In this case, complainant sought for medical expert’s opinion on certain points and report of Dr. Biswajit Dutta, Professor and Head, Department of Urology, North Bengal Medical College, Sushrutnagar, Darjeeling is received on 12.04.2016.  In the said report, the Questionnaires No.2, 4 & 5 and the opinion of the said doctor on those points are as follows :-

2.       How serious is report of presence of 11 mm calculus in lower calyx of a patient as depicted in report dated 14.10.2014 being RID No:23076 annexed herewith?

Opinion : Such patient usually does not require any emergency hospital admission and surgical intervention unless there is severe acute or recurrent pain and or associated urinary infection. 

4.       Is it possible for 11mm calculus to pass out from bodily system on its own accord without any treatment?  If so, in what period of time and how?

Opinion : Maximum diameter of ureteric lumen is 06 mm.  Therefore, chance of spontaneous expulsion of 11 mm calculus from lower calyx of a kidney down through the ureteral lumen is minimum. 

5.       How far the report dated 14.10.2014 being RID No. : 23076 showing 11 mm calculus in lower calyx concluding right nephrolithiasis is clinically acceptable in view of the IVU report dated 04.11.2014 (annexed herewith) done after 21 days of the same patient reporting no calculus in any of her kidneys given the said patient undergoing no treatment for any nephrolithiasis on the basis of the said report dated 14.10.2014 or treatment of any nature whatsoever?

Opinion : I have already mentioned about the minimum possibility of spontaneous passage of 11 mm calculus from lower calyx of the kidney.  

Further according to National Medical Student Curriculum published in June, 2012 by the American Urological Association the chance of passing kidney stone from bodily system is as follows :-

According to kidney stone Owner’s manual published by Intermountain Health Care the chance of passing kidney stone is as follows :-

Contd…..P/8

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According to British Association of Urological Surgeon a stone greater  than 5 mm diameter is too large to pass spontaneously and their surgical treatment is recommended.

From the medical expert’s report as stated above as well as the above mentioned references it can be safely said that an 11 mm calculus as detected in the kidney of the complainant by the OPs vide their report being RID No.23076 dated 14.10.2014 cannot pass out from her bodily system by the time she underwent Intravenous Urography (IVU) on 04.11.2014.  The claim of the OPs that 11 mm calculus detected in the lower calyx of the complainant (as per the ultrasonography report prepared by the OPs) and there was all possibility that the said calculus (stone) detected in the right kidney of the complainant passed out from her bodily system is absolutely false and concocted story.  It cannot be held by any stretch of imagination that an 11 mm calculus from the lower calyx of a kidney down through the ureteral lumen within 21 days when we find from the opinion of Dr. Biswajit Dutta that the diameter of the uteric lumen is 06 mm. 

On careful scrutiny of the medical papers and documents submitted on the side of the complainant there is no hesitation to hold that the complainant at no material point of time carried any calculus in any of her kidneys and the report dated 14.10.2014 being RID No.23076 issued by the OPs is absolutely a wrong report based on wrong pathological test.  OPs did not take utmost care and attention at the time of carrying out ultrasonography test of the complainant.  Had the complainant not taken the decision to visit Dr. Amlan Chakraborty at Kolkata and undergone the Intravenous Urography (IVU) at Quadra Medical Services Pvt. Ltd. according to his advice, there was every possibility that the complainant would have been operated on the basis of the wrong ultrasonography report of the OPs.

Kidney is one of the vital organs of a human body.  OPs have not taken utmost care and attention in examination of the same of the complainant.  Rather we find that the report issued by the OPs is absolutely a wrong report and there was serious negligence from the end of the OPs in carrying out the said pathological test and examination of the complainant’s KUB.  Following such negligency and deficiency in service from the OPs’ end the complainant is confronted with mental pain, agony, frustration and disappointment for which the OPs are liable.

Contd…..P/9

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In view of above findings, OPs are directed to refund to the complainant the charge taken by the OPs for the ultrasonography of KUB of the complainant stated in the report dated 14.10.2014 being RID No.23076 by the OPs. 

OPs are further directed to pay the gross total expenses of Rs.17,000/- incurred by the complainant consequent to her visit at Microlap, Kolkata and pathological test at Quadra Medical Services Pvt. Ltd. 

OPs are further directed to pay to the complainant compensation to the tune of Rs.1,00,000/- (one lac rupees only) for mental pain, agony, frustration and disappointment on account of serious negligence on the part of the OPs to render service to the complainant and also for unfair trade practice with the complainant.

The OPs are further directed to pay a sum of Rs.10,000/- as litigation cost.               

In the result, the case succeeds in part.

Hence, it is

                           O R D E R E D

that the Consumer Case No.14/S/2015 is allowed on contest in part against the OP Nos.1 & 2 with cost.

The complainant is entitled to get refund the charge for the ultrasonography of KUB from the OP Nos.1 & 2.

The complainant is further entitled to get the gross total expenses of Rs.17,000/- incurred by her for visiting at Microlap, Kolkata and pathological test at Quadra Medical Services Pvt. Ltd. from the OP Nos.1 & 2.

The complainant is further entitled to get Rs.1,00,000/- (one lac rupees only) for mental pain, agony, frustration and disappointment on account of serious negligence on the part of the OPs to render service to her and also for unfair trade practice with the complainant.

The complainant is further entitled to get Rs.10,000/- towards cost of litigation from the OP Nos.1 & 2.

The OP Nos.1 & 2, who are jointly and severally liable, are directed to refund to the complainant the charge taken by them for the ultrasonography of KUB of the complainant by issuing an account payee cheque in the name of the complainant within 45 days from the date of this order.

The OP Nos.1 & 2, who are jointly and severally liable, are further directed to pay a sum of Rs.17,000/- by issuing an account payee cheque in the name of the complainant  for visiting at Microlap, Kolkata and pathological test at Quadra Medical Services Pvt. Ltd. within 45 days from the date of this order.

The OP Nos.1 & 2, who are jointly and severally liable, are further directed

Contd…..P/10

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to pay a sum of Rs.1,00,000/- by issuing an account payee cheque in the name of the complainant for mental pain, agony, frustration and disappointment on account of serious negligence and unfair trade practice within 45 days from the date of this order.

The OP Nos.1 & 2, who are jointly and severally liable, are further directed to pay a sum of Rs.10,000/- by issuing an account payee cheque in the name of the complainant towards cost of litigation within 45 days from the date of this order.

Failing which the amount will carry interest @ 9% per annum from the date of this order till full realization.

In case of default, the complainant is at liberty to execute this order through this Forum as per law.

Let copies of this judgment be supplied to the parties free of cost.