Haryana

Ambala

CC/180/2018

Mrs Neeru - Complainant(s)

Versus

P.K.R Jain Health Care Institute - Opp.Party(s)

24 May 2019

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AMBALA

 

                                                          Complaint case no.        :  180 of 2018

                                                          Date of Institution         :  05.06.2018                                                               

                                                                  Date of decision   :  24.05.2019

 

 

Mrs. Neeru aged about 40 years , wife of Sh. Sushil Kumar, resident of Kumhar Mohalla, Ambala City.

 

……. Complainant.

                                                          Vs.

 

1.       P.K.R.Jain Health Care Institute, Nasirpur, Hisar Road, Ambala City. 2. P.K.R.Jain Health Care Institite, Nasirpur, Hiar Road, Ambala City.

3.       Insurance Company, if any to be disclosed by OPs.

 

….…. Opposite Parties

 

  

Complaint Under Section 12 of the Consumer Protection Act

 

 

Coram:       Ms. Neena Sandhu, President.

Ms. Ruby Sharma, Member.

Sh. Vinod Kumar Sharma, Member.

 

                            

Present:       Ms. Nirmaljeet Kaur, Advocate, counsel for complainant.

Sh. Shyam Sunder Matya, Advocate, counsel for the OPs.

 

Order:         Smt. Neena Sandhu, President.

Complainant has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) against the Opposite Parties(hereinafter referred to as ‘Ops’) praying for issuance of  following directions to them:-

1. To pay of Rs.18 Lacs/- as compensation for mental agony and physical harassment suffered by her. 
2. To pay Rs.23,000/- as litigation expenses.
3. To explain their position as to why wrong and false report was prepared and given by the OPs No.1 & 2 to the complainant, causing mental agony and physical pain to her and her family.

Or

any other relief whichthis Hon’ble Forum may deemfit.

 

 

The brief facts of the complaint are that the complainant contacted the OPs for conducting CECT test of her Abdomen. After doing the test the OPs gave the report dated 04.12.2017 that gall bladder is well distended and shows irregular thickening and indistinctness of the wall of the proximal body abutting the hepatic parenchyma. There is heterogeneous differential enhancement of this wall extending into the adjacent liver parenchyma in segment V suggestive of infiltration. The rest of the wall of GB is normal and smooth in outline. The complainant shocked to see the report given by the OPs, she and her family got disturbed mentally. After seeing the said report, the local doctors showed their inability to treat the complainant. Consequent thereto, the complainant was taken to GMCH, Sector-32, Chandigarh and was medico legally examined on dated 30.12.2017. Same test was conducted and as per the report of GMCH, Sector-32, Chandigarh a calculus measuring 11 mm is seen in GB lumen no obvious mural thickening of GB wall seen and the complainant was treated and operated upon 27.03.2018 and in now feeling well. Due to wrong report prepared by the OPs, the complainant came under depression and virtually whole family was put in dilemma and due to this very reason, the minor school going children of the complainant could not concentrate on their studies. The complainant served a legal notice dated 27.04.2018 upon the OPs but OPs did not reply the same. The said act and conduct of the OPs amounts to deficiency in service. Hence, the present complaint.

2.               Upon notice OPs, appeared through counsel and filed written version raising preliminary objections qua complaint is not maintainable being false and frivolous; no locus standi;  estoppal; concealed the true and material facts being false & baseless; no cause of action. On merits, it is stated that the complainant first approached Shivi Digital X-ray and ultrasound centre, Ambala City for her various tests, due to some ailments. The said report dated 14.11.2017 conducted by Shivi Digital X-Ray and ultrasound centre, Ambala City seems to be normal for the gallbladder. However, some changes in the liver has been alleged in the said report but the complainant had not gone for surgery for the alleged changes. Thereafter, she approached Omega Ultrasound & Diagnostic Centre and ultrasound of the abdomen was done by Dr. Ashish Jain on 16.11.2017.  The report of Dr. Ashish Jain is reproduced as under:-

        “Gall Bladder: is distended with few (atleast two in number) echogenic particles of sludge without any P.A.S are seen both lumen of and at its neck. GB wall is thickened and edematous with moderate amount of sludge is present in its lumen. There is also minimal pericholecystic collection seen. S/o A calculus Cholecystitis. Moreover, CBD is dilated in its proximal 1/3^rd  portion  and measures approx  10.0 mm in its diameter, and possibility of few echogenic  calculi could not be  ruled out. Rest distal 1/3^rd portion appears to be normal (Choledocolithiasis)”. The final impression as per this ultrasound report given by Dr. Ashish Jain is also reproduced as under:-

“Cholecystitis with Choledocolithiasis Hepatomegaly, Fatty Liver Grade II & UTI”.

Thereafter, complainant approached the OP No.1, for the CECT scan of the abdomen. The said test was reported by Dr. Minhaj Shaikh. He whatever observed during the said test had submitted his report, as per his knowledge and studies. The complainant never met the said doctor directly nor did the doctor refer the complainant to some/specific nursing home or doctor for her treatment. Thereafter, the complainant again visited Omega Ultrasound and Diagnostic, Centre on 23.12.2017 and requested Dr. Ashish Jain, to do the same test. The report dated 23.12.2017 of Dr. Ashish Jain is reproduced as under:-

“Gall Bladder: is distended with single echogenic calculus with P.A.S. is seen in its lumen largest one measuring approx 16.50mm. GB wall is thickened greater than 4.0 mm at one or two places and edematous with minimal amount of sludge is present in its lumen. There is also minimal pericholecystic collection seen…S/o Cholelithiasis with Cholecystitis. CBD is normal in size(5.0mm approx), shape & caliber”. The final impression as per the ultrasound report given by Dr. Ashish Jain is reproduced as under:-

“Cholelithiasis with Cholecystitis. Fatty Liver Grade II UTI”. Thereafter, the complainant  again approached Dr. Ashish  Jain for third time and for the same test, on 12.03.2018. The report submitted by Dr. Ashish Jain is reproduced as under:-

“Gall Bladder is distended with few (atleast two in number) echogenic calculi with P.A.S.largest one of approx size 14mm are seen at its neck. Its wall is thickened(>3mm) and edematous with minimal amount of sludge is present in its lumen. There is also minimal pericholecystic collection seen… S/o Cholelithiasis with Cholecystitis. CBD is normal in size (5.4mm), shape & caliber. Also, there is an single sessile predominantly hyperechoic globular/ rounded in shape like structure measuring of 5.06mm approx is seen arising  from the wall of gall bladder and protruding in to its lumen. It is non vascular on colour Doppler…..S/o? Small GB Polyp.” And final impression by Dr. Ashish Jain is being reproduced as under:- : “Cholelithiasis with Cholecystitis, Small GB Polyp”. Mild Hepatomegaly, Fatty Liver Grade III & UTI. Dilated Bowel Loops (R/o APD/Gut Pathology)”. Thereafter, the complainant was admitted in Kapoor Hospital, Ambala City, after getting the report dated 12.03.2018 from Dr. Ashish Jain in the month of March, 2018 and then she was operated in Kapoor Hospital on 27.03.2018. The complainant  after removal of her Gall Bladder from the Kapoor Hospital by surgery as mentioned above, got examined  from Maitri Diagnostic Lab, Ambala City and the report of the said lab is being reproduced as under:-

“Microscopy:       Sections show hyperplasia of gall bladder mucosa, increased chronic inflammatory cell infiltrate in the lamina propria, hypertrophy of muscle layer and sub-serosal fibrosis. There is no evidence of dysplasia or malignancy in sections examined.

Diagnosis:             Chronic Cholecystitis with Cholelithiasis”.

 

which proves  that the report submitted by Dr. Minhaj Shaikh was and is correct and has been corroborated with all the reports of the labs from whom  the complainant  got tested  again and again. Thus, there is no deficiency on the parts of the Ops and prayed for dismissed the present complaint with heavy costs.

3.               To prove her version complainant tendered her affidavit Annexure C/A alongwith documents as Annexure C-1 to C-44 and closed the evidence. On the other hand, Counsel for the OPs No.1 & 2, tendered affidavits of Dr. Minhaj Shaikh, Annexure OP/A  and Sh. Ashok Jain, Manager, PKR Jain Health Care Institute, Annexure OP-A/1 and closed the evidence on behalf of the OPs No.1 & 2.

4.                We have heard the learned counsels for the parties and carefully gone through the case file and the case laws given by the learned counsel for the parties.

5.                 The learned counsel for the complainant has contended that OPs No. 1 & 2 have given wrong report, due to which the complainant and her family went through trauma. Local doctors refused to treat the complainant and she was forced to go to GMCH, Sector-32, Chandigarh for treatment. By giving wrong report, the OPs No. 1 & 2 have violated the code of medical ethics, hence, committed medical negligence, which amounts to deficiency in service on their part. In support of this contention, she has placed reliance on the judgment dated 16.05.2016 passed by the Hon’ble National Commission, in the case of Anil Dutt & Anr. Vs. Vishesh Hospitals & Ors., wherein it has been held that Radiologists have given the report “Foetal Spine, Trunk & Limbs are Normal” without careful examination. It was a short cut and unscientific approach which amount to medical negligence.

On the contrary, the learned counsel for the OPs No. 1 & 2 has contended that the doctor concerned has given the report dated 04.12.2017, after conducting CT scan. On 23.12.2017, ultrasound of the complainant was done by Dr. Ashish Jain of Omega Ultrasound and Diagnostic Centre, Ambala. On 12.3.2018, ultrasound of the complainant was again done by the Dr. Ashish Jain, of Omega Ultrasound and Diagnostic Centre, Ambala. The findings given by the OPs No.1 & 2, do match with the findings given by Dr. Ashish Jain, of Omega Ultrasound and Diagnostic Centre, Ambala. Thereafter, on 27.03.2018, the complainant was operated in Kapoor Hospital, Ambala. However, complainant has concealed all these facts from the Hon’ble Forum. The OPs no.1 & 2 have done the CT scan of the complainant whereas, the ultrasound was done by GMCH, Sector-32, Chandigarh. Report of CT scan cannot be compared with the report of ultrasound because CT scan is an inferior test than ultrasound. In support of this contention he has produced the photocopy of page Nos. 373 & 374 of the book ‘Malignant Pathologies of Biliary Tree’ same has been Marked as ‘A’. He further contended that the report of CT scan done by the OPs No.1 & 2 was not shown to the treating doctor of the GMCH, Sector-32, Hospital, by the complainant. From the bare perusal of report dated 04.12.2017, Annexure C-20, it is abundantly clear that it cannot be treated as conclusive finding. It was the treating doctor to ascertain disease on the basis of other tests also. There is no deficiency in service on the part of OPs No.1 & 2.  While saying so, he has placed reliance on the judgments of the Hon’ble National Commission decided on 18.11.2011 passed in the case of G.P.Gupta through Lrs Vs. Mehrotra Pathology and others wherein it has been held that mere histopathology examination of specimen could not be treated  as conclusion finding. It was for treating doctors to ascertain disease on strength of other tests. Assuming that there was some error on the part of opposite party, it is not enough to hold that there was gross negligence on its  part. He has also placed reliance in the case of Jagdishwar Singh Vs. Jaslok Hospital & Research Centre & Others, 2005(1) CPJ 60(NC), wherein the Hon’ble National Commission has observed that FNAC test  was carried out wherein  it was found that it was suspected adenocarcinoma. The statement that it was suspected adenocarcinoma would indicate that it was not a definite opinion. It is also not in dispute that such lesion may develop malignancy Fine Needle Biopsy Report may not give 100% correct result. Hence, it is not necessary to refer to other literature on the Fine Needle Biopsy. It cannot be said that the doctor have not taken reasonable care and caution in giving their opinion.

6.                We have gone through the page no.373 and 374 of the book referred to above. At page no.373, under the head ‘Radiological Findings’, ‘Radiologic Evaluation of the Primary Tumor”, it is written that on imaging, gallbladder carcinoma can present as three patterns echoing the similar histologic patterns: a mass replacing or obscuring the gallbladder(most common),Intra luminal polypoid mass and mural thickening or irregularity of the wall of the gallbladder. At page no. 374, under the head ‘Carcinoma Manifesting as Mural Thickening’, it is written that CT is inferior to ultrasound in depicting mucosal irregularity, mural thickening and cholelithiasis however CT scores over ultrasound in evaluating the thickening of those portions of the gallbladder wall which are obscured by gallstones or mural calcification on USG. On the basis of the book referred to above, it cannot be said that CT scan is inferior than ultrasound. Moreover, in the present case question is not about comparison between the CT scan and ultrasound. In the present case, issue is regarding as to whether the report given by the radiologist is correct or not. In the outdoor patient card of GMCH, Sector-32, Chandigarh, it is recorded that no obvious mural thickening of GB wall seen. In order to prove this fact that the CT scan report dated 04.12.2017 given by the OPs No.1 & 2 is correct, they have not produced the original images/pictures of CT scan of the complainant. In the absence thereof, we do not hesitate to conclude that OPs No.1 & 2, have failed to establish that the report of CT scan given by them is correct. Thus they are liable to compensate the complainant for the financial loss suffered by the complainant for getting the test done again and again, to verify the correctness of the report given by the OPs No.1 & 2 and also for the mental agony and physical harassment suffered by her alongwith litigation expenses.

7.                Now, the question which arises for consideration is what should be the quantum of compensation. It may be stated here that it is not the case of the complainant that on the basis of the said CT scan report of OPs No.1 & 2, she has taken some treatment which, caused harm to her. Therefore, we are of the view that the amount of compensation of Rs. 18 lacs, as sought for by the complainant is very excessive and cannot be granted. In the case of Chief Administrator, Huda & Anr. Vs. Shakuntla Devi decided on 08.12.2016 (SC),  the Hon’ble Supreme Court of India has observed that

“The sine qua non for entitlement of compensation is proof of loss or injury suffered by the consumer due to the negligence of Opposite Party. Once the said condition are satisfied, the consumer forum would have to decide the quantum of the compensation to which the consumer is entitled. There cannot be any dispute that the computation of compensation has to be fair, reasonable commensurate to the loss or injury. There if a duty cast on the consumer Forum to take into accounts all relevant factor of arriving at compensation to be paid”. 

 

8.                In view of the totality of the facts and the law laid down by the Hon’ble Supreme Court in the case referred to above, we hereby allow the present complaint. OPs are jointly and severally directed to pay a lump sum amount of Rs.25,000/- as compensation to the complainant, within the period of 30 days from the date of  receipt of the certified copy of this order, failing which the awarded amount shall carry interest @ 9% per annum for the period of default. Certified copies of this order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the Record Room.

Announced on : 24.05.2019

 

 

 

          (Vinod Kumar Sharma)       (Ruby Sharma)                (Neena Sandhu)

              Member                             Member                   President