Tamil Nadu
South Chennai
CC/296/2022
Zarina Begum - Complainant(s)
Versus
Priya Diagnostic and Scan Center - Opp.Party(s)
M/s. R. K. Ramaiah
15 Jun 2023
ORDER
Date of Complaint Filed:23.08.2022
Date of Reservation :09.06.2023
Date of Order :15.06.2023
DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,
CHENNAI (SOUTH), CHENNAI-3.
PRESENT: TMT. B. JIJAA, M.L., : PRESIDENT
THIRU. T.R. SIVAKUMHAR, B.A., B.L., : MEMBER I
THIRU. S. NANDAGOPALAN., B.Sc., MBA., : MEMBER II
CONSUMER COMPLAINT No.296/2022
THURSDAY, THE 15th DAY OF JUNE 2023
Zarina Begam,
W/o. A. Ansar,
2/336D, Kandasamy Nagar 6th Street,
Palavakkam,
Chennai – 600 041. .. Complainant.
-Vs-
1.Priya Diagnostic and Scan Center,
Rep. by Mrs. Sindhuja Amalraj M.B.B.S. MDRD
No.152, ECR Road,
Kottivakkam,
Next to Indusind Bank/Star Briyani,
Chennai-600 041.
2.Priya Diagnostic and Scan Center,
Rep. by its Director,
Head Office,
No.29, 1st Avenue, Shastri Nagar,
Behind Adyar BSNL Telephone Exchange,
Adyar, Chennai-600 020. .. Opposite Parties.
* * * * *
Counsel for the Complainant : M/s. R.K Ramaiah, K.R. Keerthana
Rahavi, B. Pooja
Counsel for Opposite Parties : M/s. C. Vigneswaran
On perusal of records and upon hearing the oral arguments of the counsel for Complainant and the counsel for the Opposite Parties this Commission delivered the following:
ORDER
Pronounced by Member-I, Thiru. T.R. Sivakumhar., B.a., B.L.,
(i) The Complainant has filed this complaint as against the Opposite Parties under section 35 of the Consumer Protection Act, 2019 and prays to pay a sum of Rs.60,276/- towards reimbursement of medical expenses incurred with reasonable interest and to pay a sum of Rs.10,00,000/- towards damages for the suffering and mental agony caused to the Complainant due to Opposite Parties deficiency of service and unfair trade practice along with cost of Rs.20,000/- towards the cost of this complaint.
I. The averments of Complaint in brief are as follows:-
1. The Complainant submitted that on 19.06.2021 she had a Stomach Pain, on the advice of the Doctor she approached 1st Opposite Party at Kottivakkam, for abdominal scan, Duty Doctor Mrs. Sindhuja Amalraj M.B.B.S. MDRD attended her, patient ID:0300013525 was created and had subjected her for "Ultrasonogram- whole abdomen” and gave report that she has “A calculus remaining 3 mm in body gall bladder” and the 1st Opposite Party had collected Rs.1320.00, towards Ultra Sound Scan Charges. After receiving the report she had immediately consulted Dr.Jeyaraj of Promed Hospital, Kottivakkam for further treatment, after examining Scan report of the 1st Opposite Party, the said Doctor inferred that there is a calculus remaining of 3 mm size, remains in the body gall bladder and also suggest if it moves to the neck of the gall bladder it will become risk for her life and advised for immediate surgery. But due to the family situation she decided to do the operation at later date.
2. The Complainant submitted that again on 11.12.2021 she approached the 1st Opposite Party, very same Scan Center at Kottivakkam, in order to find out then status of the calculus remains of gall bladder, again the 1st Opposite Party subjected her for “Ultrasonogram-whole abdomen" with very same patient ID:0300013525 and gave report that she has "A calculus measuring 0.26 cm in neck of the gall bladder” and the 1st Opposite Party told to the Complainant that it moved to the neck portion and again collected Rs. 1320.00, towards Ultra Sound Scan Charges.
3. The Complainant submitted that on hearing the news, entire family is put untold grief and her aged father father-in-law could not bear the news as he was more affectionate with Complainant and his health was further detoriated.
4. The Complainant submitted that on 10.01.2022 she experienced stomach pain, in order to get second opinion, she had approached at GEM HOSPITAL at Perungudi on seeing the 1st Opposite Party's report the duty Doctors advised her for immediate surgery. Afraid of the danger, on 11.01.2022, she got admitted herself at "PROMED HOSPITAL" vide Patient ID: SSN93744, and the special Surgeon Dr.Sarathkumar, after clinical examination advised / directed the Complainant to take "MRI and Ultra sound" before surgery for confirmation, on the same day she took MRI and Ultra Sound Scan at the very same Hospital, in the said report to her shock and surprise, the said Doctor had confirmed that there is no stone /calculus remains noticed in the MRI and SCAN Report and immediately Dr.Sarathkuamar aborted planned surgery procedure, stating that the report issued by 1st Opposite Party is wrong and due to which all the Confusions arose and advised her for regular treatment for stomach pain, which may be due to some other food related issue.
5. The Complainant submitted that in the meanwhile, on hearing the news of her admission to the hospital for operation of gall bladder, her father-in-law died and she could not able to attend the funeral of her beloved father-in -law, it gave her unbearable pain and suffering.
6. The Complainant submitted that if the surgery had been done without subjecting her for further MRI and Ultra Sound Scan before surgery at the PROMED HOSPITAL, based on 1st Opposite Party's Scan report, definitely, by this time she would have lost one of her very important organ "gallbladder” and she would have put to permanent ailment, like indigestion and abdominal related issues. Thus, due to either the negligence/ inefficiency/creation of report based on the earlier report by the duty doctor at 1st Opposite Party or due to substandard Machine deployed at the diagnostic center, she lost her father in law and could not able attend the last rights and the act of 1st Opposite Party giving a wrong report to the patient during the time of emergency is highly dangerous not only to her but to the entire humankind and it is highly illegal and punishable in the eye of law. The Complainant further submitted that she was put to an unnecessary trouble apart from unwanted medical expenses, she Complainant was put to untold hardship and mental agony and it amounts to wilfull negligence and un fair trade practice, which is highly condemnable in the eye of law.
7. The Complainant further states that in order to find out the contradiction and cross verify the issue, again on 19.01.2022 she had approached the 1st Opposite Party's Scan Center at Kottivakkam, for abdominal scan, and Duty Doctor Mrs.Sindhuja Amalraj M.B.B.S. MDRD attended her with patient ID:0300013525 with same ID and had subjected her for another "Ultrasonogram- whole abdomen” and gave more or less similar report that of earlier one, that "A small calculus measuring 0.27 Cm in neck of the gall bladder" and collected Rs.1520.00 towards Ultra Sound Scan charges.
8. The Complainant submitted that in order to confirm doubly sure of the contradiction of 1st Opposite Party report, on 02.02.2022 the Complainant took another abdominal scan at OMANDURAR Government Hospital, in that report it states that "No calculus remains in the gall bladder".
9. The Complainant submitted that from the above said facts it is clear that scan report issued by Doctor Mrs.Sindhuja Amalraj M.B.B.S. MDRD of 1st Opposite Party at Kottivakkam is without application of mind and completely wrong and same was done with substandard machine without any accuracy. The Complainant further submitted that 2nd Opposite Party is the head office and Runs a chain of scan center, including 1st Opposite Party as such the both the Opposite Parties are jointly or severally liable for the act of the one on the other. And when the Opposite Party doing a job concerned with human life, the Opposite Parties are carrying out the same in casual manner with an ill motive, only to mint money to make unjust gain, which is highly dangerous to humankind and highly illegal and highly condemnable in the eye of law. Such of the act of the Opposite Parties amounts to deficiency of service and unfair trade practice.
10. The Complainant further states that due to the wrong report of 1st Opposite Party, the Complainant had incurred medical expenses to the tune of Rs.60,276/- including Transportation to and pro to Hospital on various dates.
11. The Complainant submitted that due to Opposite Parties unethical/ un fair trade practice and deficiency of service, she was put to untold hardship and mental agony, which is against law of the land and it is highly condemnable and the Opposite Parties are liable to pay to the Complainant Rs.10,00,000/- as a compensation and a sum of Rs. 60,276/- towards reimbursement, in total the Opposite Parties are legally liable to pay Rs.10,60,276.00.
12. The Complainant submitted she had caused legal notice dated 26.03.2022 calling upon both the Opposite Party to pay a sum of Rs. 10,00,000/- towards damages, for the suffering and mental agony caused to her due to negligence deficiency of service and unfair trade practice of the Opposite Parties and a sum of Rs.60,276/- towards reimbursement, In total the Opposite Parties are legally liable to pay Rs.10,60,276/-, in spite of receipt of the said legal notice on 04.04.2022 till date the Opposite Parties has not paid the amount nor gave any reply, which shows negligent and lethargic act of the Opposite Parties and having no respect for her sufferings as such the Opposite Parties had committed deficiency of service and un fair trade practice as such they are liable to be prosecuted for the recovery of the amount with damages and interest and expenses. Hence this complaint.
II. Written Version filed by the Opposite Parties in brief:
13. The Opposite Parties submitted that all the averments made in the complaint as against the mare denied, except those that are specifically admitted herein. Further, it is a classic case of frivolous claim has been made on the basis of conjectures and surmises. Further, when several hospitals are involved who had advised the Complainant to go for diagnosis with the Opposite Party herein, non-joinder of the hospitals in the present complaint would prove the ulterior motive in the complaint.
14. The Opposite Parties submitted that the 2nd Opposite Party is a reputed scan center in the city operating from the year 1982 and having many outlets and have always been known for their precise and accurate reports. Further they have obtained many appreciations and have complied with all the legal compliance for running the scan center and the machines and equipment's used by us in our center are state of the art and has been tested and verified by authorized personnel's from the respective companies. Further, so far they have done millions of scans and have maintained an unblemished record of serving the public.
15. The Opposite Parties submitted that before replying to the Complainants allegations in the complaint item wise, the Opposite Party disputes the identity of the Complainant and the person who had undergone the scan and the reports which are claimed to have been made from different centers and he is sure that the above complaint has been issued to them with an ulterior motive, since all the allegations which has been made in complaint are defamatory in nature, the Opposite Party reserves its right to initiate criminal defamation against the Complainant under Section 499 and 500 of the Indian Penal Code and also reserves its right to take civil action for the defamatory statements and seek compensation in accordance with law.
16. The Opposite Party submitted that they admit that the Complainant herein had approached the 1st Opposite Party as early as 19.06.2021 only on the advise of the Complainant's Doctor for conducting an "Ultrasound Scan" of the full abdomen and they had not made any canvassing to the Complainant to obtain scans from them and the same was done out of the Complainant's own accord.
17. The Opposite Parties submitted that after examining the Complainant through Ultra Sound, it was found by them that there was in fact a calculus measuring 3mm in size in the gall bladder of the Complainant at that relevant point of time and the above report is not based on mere surmise or conjectures but based on the ultrasound images which has been captured at the time of the scan. Further, the Copies of the Ultra sound images, which would clearly show the presence of calculus in the gall bladder of the Complainant. Further, based on the report, the Complainant had consulted Doctors from the Promed Hospitals, who had also after clinically examining the Complainant had confirmed the presence of calculus in the gall bladder and advised the Complainant for surgery. But, it appears that the Complainant had not undergone the same against medical advice, further the Complainant has not mentioned the treatment and the medicines taken by the Complainant in the in-between period and thus the same has to be proved by the Complainant and thus the Opposite Parties has no knowledge about the same.
18. The Opposite Parties submitted that they admit that the Complainant for the reasons best known to her, she had visited the centre once again on 11.12.2021 for undergoing Ultra Sound Scan. Further, it would clearly show that the Complainant had issues in the Gall Bladder and because of which only the Doctors have advised the Complainant to undergo Ultra Sound Scan once again. On examining the Complainant, it was found that a small calculus measuring around 0.26 cm was found in the neck of the gall bladder and the same was in consonance with the earlier reported issued by the 1st Opposite Party's centre.
19. The Opposite Parties submitted that with regard to averment made in para 5 of the Complaint, it is mentioned about the personal family details of the Complainant and thus the Opposite Parties herein does not warrant any reply and if any the same shall be proved by the Complainant.
20. The Opposite Parties submitted that the Complainant itself had admitted that, due to the presence of calculus in the gall bladder once again the Complainant had experienced stomach pain and had again visited GEM Hospitals at Perungudi, where it was advised to the Complainant to undergo a surgery. But, it is seen that the Complainant had once again undergone MRI and Ultrasound in Promed Hospital and it was found that there was no Stone/Calculus. Further, the organ under which the MRI was conducted and report of the Doctor that there was a misreporting by the Opposite Parties herein has not been supported by any documents. In the absence of an expert report the Opposite Parties herein deny such a statement by the Complainant or her doctor. Further, it could be seen that the Complainant had approached several hospital and all the hospitals after clinically examining her and based on the 1st Opposite Party's reports had recommended surgery for the reasons best known to them.
21. The Opposite Parties submitted that gall bladder calculus are made of different compositions namely cholesterol, pigment or mixed and some other types of molecules, which may be visible only in an Ultra Sound and not in X-Ray, or CT. The above statement is supported by medical authorities which are well known in the medical industry and also the same can be verified form an expert in the field, the Complainant had recurring pain for more than 6 months would clearly show that there was some calculus in the gall bladder as per report. Hence, the 1st Opposite Party denies the allegations as made against the Opposite Parties. Further, the Complainant had not stated that when did her father in law had died. Further, it was admitted by the Complainant herself that he was an aged person and now blaming the Opposite Parties for the same which is baseless and frivolous allegations as made against the Opposite Parties herein.
22. The Opposite Parties submitted that they admit for the reasons best known to the Complainant, the Complainant had once again approached the 1st Opposite Party on 19.01.2022, wherein the 1st Opposite Party had in fact done the Ultrasound Scan once again and have reported the presence of small calculus measuring 0.27cm in the neck of the gall bladder.
23. The Opposite Parties submitted that the Complainant for the reasons best known to her had visited the Omandurar Government Hospital. Further, the Opposite Parties state that even assuming, that the report of the Government Hospital is accurate, it cannot be ruled out that the calculus could have travelled through the common bile duct and into the intestine due to its small size and therefore the same could not have been identified in the scan dated 02.02.2022.
24. The Opposite Parties submitted that they have engaged Radiologists as per requirements under the Pre-Conception and Pre-Natal Diagnostic Techniques Act, 1994 and have also obtained licenses from the requisite authorities. Further, all the machineries used for diagnostics have been certified by the Engineers and also being inspected by the Government authorities from time to time and there is no defects or malfunctions on the same. Further they have also obtained reports from the service engineers of the Ultra Sound Machines that they are in proper condition and the report was only based on Ultra Sound Images which were taken during the examination.
25. The Opposite Parties submitted that the Complainant took treatment for her stomach ache and thus for her treated she had visited the Promed Hospital and Gem Hospital and the 1st Opposite Party's scan centre only by the consultation of her doctors. Thus, they are not liable to pay the cost of the Treatment rendered by the Complainant for her health issues. Further, in the absence of material to show that she has actually gone for treatment for the above issue the above claims have to be rejected in liminie.
26. The Opposite Parties submitted that they are ethical and has a fair trade practice and there is no deficiency of service on their part. Thus, has in order to hunt money and thus unreasonably extracted the money and hence, they deny all the allegations made as against them. They are not liable to pay the amount as quoted by the Complaint which is baseless and thus the Opposite Parties have obtained the charges for the service rendered by them.
27. The Opposite Parties submitted that tall and frivolous claims have been made in the legal notice. And there is no deficiency of services as claimed by them in the said notice and there is no cause of action to file the present complaint.
28. The Opposite Parties submitted that the Complainant is not entitled to any relief as prayed for and further submitted that the Complainant had consulted several hospitals other than the Opposite Parties and wherein all the doctors after having clinically examined the Complainant had come to the conclusion that there is a presence of calculus in the gall bladder, thus filing the complaint in isolation of all the other doctors from different hospitals would show that it is based on ulterior motives. Hence they are not liable to make any amounts claimed by the Complainant and would stick on to the reports made by the centre. Hence prayed to dismiss the complaint with costs.
III. The Complainant has filed her proof affidavit, in support of her claim in the complaint and has filed 11 documents which are marked as Ex.A1 to A11. The Opposite Parties had submitted their proof affidavit. On the side of Opposite Parties documents were marked as Ex.B1 to Ex.B8. Written arguments of Complainant and Opposite Parties were filed.
V. Points for Consideration:-
1.Whether there is deficiency of service on the part of the Opposite Parties?
2.Whether the Complainant is entitled for the reliefs claimed in the complaint?
3.Whether the Complainant is entitled for any other relief/s?
Point Nos. 1 and 2:-
29. The contentions of the Complainant are that she had a Stomach Pain on 19.06.2021, on the advice of the Doctor she approached 1st Opposite Party at Kottivakkam, for abdominal scan and she was attended by the Duty Doctor Mrs. Sindhuja Amalraj M.B.B.S. MDRD and patient ID bearing No.0300013525 was created and had subjected her for "Ultrasonogram- whole abdomen” and gave report that she has “A calculus remaining 3 mm in body gall bladder” and a sum of Rs.1320/- was collected by the 1st Opposite Party towards Ultra Sound Scan Charges.
30. Further contended that after receiving the report she had immediately consulted Dr.Jeyaraj of Promed Hospital, Kottivakkam for further treatment, after examining Scan report of the 1st Opposite Party, the said Doctor inferred that there is a calculus remaining of 3 mm size, remains in the body gall bladder and also suggest if it moves to the neck of the gall bladder it will become risk for her life and advised for immediate surgery. But due to the family situation she decided to postpone the operation to a later date.
31. Further contended that she again approached the 1st Opposite Party, very same Scan Center at Kottivakkam, on 11.12.2021 in order to find out then status of the calculus remains of gall bladder, again the 1st Opposite Party subjected her for “Ultrasonogram-whole abdomen" with very same patient ID No.0300013525 and gave report that she has "A calculus measuring 0.26 cm in neck of the gall bladder” and the 1st Opposite Party told her that it moved to the neck portion and a sum of Rs. 1320/- towards Ultra Sound Scan Charges was collected by the 1st Opposite Party.
32. Further contended that on hearing the news, entire family is put untold grief and more particularly her aged father father-in-law who was more affectionate, his health was further deteriorated.
33. Further contended that on 10.01.2022 she experienced stomach pain and in order to get second opinion she had approached at GEM HOSPITAL at Perungudi on seeing the 1st Opposite Party's report the duty Doctors advised her for immediate surgery. Afraid of the danger, on 11.01.2022, she got admitted herself at "PROMED HOSPITAL" vide Patient ID No.SSN93744, and the special Surgeon Dr.Sarathkumar, after clinical examination had advised her to take "MRI and Ultra sound" before surgery for confirmation, on the same day she took MRI and Ultra Sound Scan at the very same Hospital, in the said report to her shock and surprise, the said Doctor had confirmed that there is no stone /calculus remains noticed in the MRI and SCAN Report and immediately Dr.Sarathkuamar aborted planned surgery procedure, stating that the report issued by the 1st Opposite Party is wrong and due to which all the Confusions arose and advised her for regular treatment for stomach pain, which may be due to some other food related issue.
34. Further contended that in the meanwhile, on hearing the news of her admission to the hospital for operation of gall bladder, her father-in-law died and she could not able to attend the funeral of her beloved father-in -law, it gave her unbearable pain and suffering.
35. Further contended that if the surgery had been done without subjecting her for further MRI and Ultra Sound Scan before surgery at the PROMED HOSPITAL, based on 1st Opposite Party's Scan report, definitely, by this time she would have lost one of her very important organ "gallbladder” and she would have put to permanent ailment, like indigestion and abdominal related issues. Thus, due to either the negligence/ inefficiency/creation of report based on the earlier report by the duty doctor at 1st Opposite Party or due to substandard Machine deployed at the diagnostic center, she lost her father in law and could not able attend the last rights and the act of 1st Opposite Party giving a wrong report to the patient during the time of emergency is highly dangerous not only to her but to the entire humankind and it is highly illegal and punishable in the eye of law. The Complainant further submitted that she was put to an unnecessary trouble apart from unwanted medical expenses, she Complainant was put to untold hardship and mental agony and it amounts to wilfull negligence and un fair trade practice, which is highly condemnable in the eye of law.
36. Further contended that in order to find out the contradiction and cross verify the issue, again on 19.01.2022 she had approached the 1stOpposite Party's Scan Center at Kottivakkam, for abdominal scan, and Duty Doctor Mrs.Sindhuja Amalraj M.B.B.S. MDRD attended her with patient ID No.0300013525 with same ID and had subjected her for another "Ultrasonogram- whole abdomen” and gave more or less similar report that of earlier one, that "A small calculus measuring 0.27 Cm in neck of the gall bladder" and a sum of Rs.1520/- towards Ultra Sound Scan charges was collected by the 1st Opposite Party. In order to confirm doubly sure of the contradiction of 1st Opposite Party report, on 02.02.2022 the Complainant took another abdominal scan at OMANDURAR Government Hospital, in which report it is stated that "No calculus remains in the gall bladder".
37. Hence, from the above said facts it is clear that scan report issued by Doctor Mrs.Sindhuja Amalraj M.B.B.S. MDRD of 1st Opposite Party at Kottivakkam is without application of mind and completely wrong and same was done with substandard machine without any accuracy. And when the Opposite Party doing a job concerned with human life, the Opposite Parties are carrying out the same in casual manner with an ill motive, only to mint money to make unjust gain, which is highly dangerous to humankind and highly illegal and highly condemnable in the eye of law. Such of the act of the Opposite Parties amounts to deficiency of service and unfair trade practice.
38. Further contended that due to the wrong report of 1st Opposite Party, the Complainant had incurred medical expenses to the tune of Rs.60,276/- including Transportation to and pro to Hospital on various dates, the medical bills were marked as Ex.A-10.
39. Further contended that the Complainant had caused a legal notice dated 26.03.2022 calling upon both the Opposite Party to pay a sum of Rs.10,60,276/- towards compensation for damages and reimbursement of medical expenses, in spite of receipt of the said legal notice on 04.04.2022 till date the Opposite Parties has not paid the amount nor gave any reply, which shows negligent and lethargic act of the Opposite Parties and having no respect for her sufferings as such the Opposite Parties had committed deficiency of service and un fair trade practice as such they are liable to be prosecuted for the recovery of the amount with damages and interest and expenses.
40. Further contended that the Opposite Party having received the legal notice, kept silent, filed their version with a bald and evasive reply and had failed to file any documentary evidence to substantiate their statements for the reason better known to them. Further alleged that there are so many doctors involved in the process and filing complaint only against them is an ulterior motive, which were made to cause confusion and to misguide this Commission and delay the ends of justice. On the other hand the Opposite Parties had conveniently failed to admit that all the doctors formed opinion based on the faulty, mechanically created scan report of the 1st Opposite Party. Further strongly condemn that Complainant had filed this complaint with an ulterior motive, the Opposite Party being in the field of humanity service, filing such a reply would clearly show that how money minded they are and they have no iota of service Motto in the profession.
41. Further contended that the Opposite Parties had disputed the identity of the Complainant and the person who had undergone the scan and the reports which are claimed to have been made from different center. When it is ample clear that the Complainant had subjected for abdominal scan with same ID Number and other hospital report also shows /contains Complainant’s name and her husband name to prove the identity, further the complaint had availed insurance it also shows the identity. And when things stands so, the allegation of dispute of identity is only to create confusion with an oblique motive to escape from liability.
42. Further contended that the proximity of the scan report taken by the Complainant which shows the consecutiveness and the Complainant endeavor is to bring the ordeal suffered by her on the substandard, unprofessional scan report of the 1st Opposite Party to get justice, by this process save the public at large. The Complainant is exercising her fundamental rights provide under constitution, which cannot be called as defamation, the Opposite Party is threatening with defamation cases, indirectly to stop from proceeding with the case.
43. The contentions of the Opposite Parties are that the present complaint is a classic case of how the litigants can misuse and abuse the process of law for their undue advantage and arm twist the Opposite Parties for unlawful pecuniary gain by misleading with distorted facts and the Complainant has approached this forum with unclean hands and has not shown any cause of action for entertaining this complaint.
44. Further contended that to decide this Complaint two issues need to be adjudicate by this Hon’ble Commission and they are
a) Whether there was a deficiency of service on the part of the Opposite Parties in conducting the test to the Complainant in the Diagnostic Center and thereby leading to wrong diagnosis by the Doctor resulting in deterioration of the health of the Complainant without proper cure as alleged by the Complainant?
b) Whether the Complainant is entitled to reimbursement of the medical expenses along with the compensation as claimed by her?
Further contended that the Complainant in support of her claim has filed 12 documents, the first and the foremost document is that of the Doctor consultation done on 19.06.2021 from PROMED Hospital and also a report issued by the Opposite Parties on 19.06.2021. From the same it could be seen that the Complainant had a health issue as early as 19.06.2021 and after 19.06.2021 had gone against the advise of the Doctors from the same PRO MED Hospitals for surgery and had not undergone any surgery as advised. But the Complainant has suppressed the facts relating the drugs and medicines taken by her from June 2021 till December, 2021 for about 6 months till the pain had relapsed. It is a fact that that in a span of almost months there may be so many factors which may result in the change or the outcome of the reports which totally depends upon the diet, usage of Drugs life style changes etc. In the absence of the above details by the Complainant this Commission would not be in a position to adjudicate on the merits of the issue and it has to be presumed that there is no injury caused to the Complainant in the absence of any such pleading or documents before this Hon’ble forum. Thus, the Test taken in December, 2021 and the report of the Opposite Parties on 11.12.2021 is correct and rightly reflected the position of the Calculus in the Gall Bladder of the Complainant as on that date.
45. Further contended that it is submitted by the Complainant that she had undergone MRI and Scan Test on 12.01.2022 in Pro Med Hospitals after almost one month from the date on which the reports were issued by the Opposite Parties, which would again show the gap of one month in which period several changes could have occasioned due to the reasons mentioned above namely the diet, usage of Drugs, life style changes etc. Further, it is a usual practice in certain hospitals to send that samples collected to other Scan Centers for obtaining the report. Therefore in the absence of any data as to who had issued the report in Pro Med Hospitals and whether the persons who had issued the report was qualified to issue the report has not been proved by the Complainant before this Commission by any evidence. On the contrary the Opposite Parties through documents have proved that the Machinery used by them were working perfectly and the Doctors employed by the Opposite Parties to issue such reports were qualified to issue the reports.
46. Further contended that though the Complainant had produced the reports issued by the Pro Med Hospitals dated 12.01.2022 and the Scan Report issued by the Govt Hospital at Omandurar dated 02.02.2022 the Complainant had not chosen to examine the doctors in Pro Med Hospital or the Doctor who issued the Certificate in Omandurar Govt Hospital. In the absence of examination of the Doctors who had issued the reports dated 12.01.2022 and 02.02.2022,the claim of the Complainant that the reports of the Opposite Parties are incorrect cannot be countenanced.
47. Further contended that the Complainant has not chosen to examine any of the doctors under whom she had undergone treatment with a mala fide motive so that they would give details of the treatment and the medication she had taken in the in between periods. Thus, the Complainant had approached the court with unclean hands and the Complaint has to be dismissed on this Ground alone.
48. In support of the above contentions the Opposite Party relied on the Judgment of the Honble Apex Court reported in Dr.C.P. Sreekumar vs S. Ramanujam reported in 2009 (7) SCC 130, wherein in para 16 page No.21 has held by following Jacob Mathew case, "As already observed in Jacob Mathew's case the onus to prove medical negligence lies largely on the claimant and that this onus can be discharged by leading cogent evidence, a mere averment in a complaint which is denied by the other side can, by no stretch of imagination, be said to be evidence by which the case of the Complainant can be said to be proved. It is the obligation of the Complainant to provide the factaprobanda as well as the factaprobantia."
49. Further contended that they have engaged Radiologists as per requirements under the Pre-Conception and Pre-Natal Diagnostic Techniques Act, 1994 and have also obtained licenses from the requisite authorities. Further, all the machineries used for diagnostics have been certified by the Engineers and also being inspected by the Government authorities from time to time and there is no defects or malfunctions on the same. Further the Opposite Parties has also obtained reports from the service engineers of the Ultra Sound Machines that they are in proper condition and the report was only based on Ultra Sound Images which were taken during the examination.
50. Further contended that no substantiate documentary evidence is shown to prove of the medical negligence on part of the Opposite Parties. Their prime functioning is limited to extent of the Scanning and diagnosis alone.
51. Further contended that the Complainant is very well conscious in approaching them by stating that she had a stomach pain on the advice of the Doctor. Hence, it is prima facie to prove that the Complainant is having problem in the stomach and the same is also confirmed in the scan report dated 19.06.2021, wherein calculus remaining 3mm in body gall bladder. The report of the scan is an substantiate evidence to proof.
52. Further contended that their function is limited to the extent of the Scanning and diagnosis alone, wherein the Complainant in an atter motive nowhere in her complaint stated about her medication taken during the course of treatments, herein with an malafide intention by suppressing the facts to haunt the money from Opposite Party.
53. Further contended that they had proper machineries to scanning which is periodically undergone service and the same is verified and certified by the appropriate government authorities. On this face, complaint before the commission can be dismissed.
54. Further contended that the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and one man is not clearly negligent merely because of his conclusion differs from that of the other professional men. The true test for establishing negligence in diagnosis or treatment on part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skills would be guilty of if facing with ordinary care.
55. Further contended that the Complainant had admitted that she had a stomach pain on the advice of the Doctor approached 1st Opposite Party for abdominal scan, Whereas the scan report shows consecutiveness of the calculus remains.
56. On discussions made above and on perusal of records, it is clear that the Complainant had approached the 1st Opposite Party on 19.06.2021 for taking abdominal scan and the Complainant was subjected for Ultrasonogram – Whole Abdomen on 19.06.2021 with patient ID No.0300013525, by the 1st Opposite Party and after scan a report was given by the 1st Opposite Party on 19.06.2021, wherein it is reported that in Gall Bladder- A calculus measuring 3 mm noted in body of gall bladder, which is evidenced from Ex.A-1. The contention of the Complainant was that after receiving the scan report she had consulted Dr.Jayaraj of Promed Hospital and based on the scan report, Ex.A-1, the said Doctor had explained the Complainant that a stone with 3 mm was found in the body of the Gall Bladder and if it moves to the neck of the gall Bladder the same would risk the life of the Complainant, hence advised for immediate Laparoscopic surgery, a clinical diagram explaining about the risk of stone in the body of the Gall Bladder, seen in Ex.A-2. From Ex.A-3 Scan Report of the 1st Opposite Party taken by the Complainant on 11.12.2021 with ID No.0300013525,wherein it is reported that in Gall Bladder- A small calculus measuring 0.26 cm noted in the neck of gall bladder, which is evidenced from Ex.A-3. Ultrasound Abdomen Report dated 12.01.2022 taken by the Complainant at Promed Hospital, found in Page no.7 of Ex.A-4 wherein the Gall Bladder was reported as “Gall bladder is normal sized. No demonstrable calculus is seen” and in the Impression Column it was mentioned as Fatty Liver and Ultra High Field 3T MRI Upper Abdomen and MRCP, found in Page No.9 of Ex.A-4, wherein Gall Bladder was reported as “Gall Bladder well distended, appears normal in contour and wall thickness. No demonstrable T2 hypointense shadows seen in neck and in brackets it was mentioned as (previous USG noted small 3mm calculus in GB neck ? sludge/? Radiolucent calculus) and in the Impression Column it was mentioned as No demonstrable T2 hypointense shadows seen in neck and in brackets it was mentioned as (previous USG noted small 3mm calculus in GB neck ? sludge/ Radiolucent calculus) and CBD appears normal. No CBD calculus seen. And it was mentioned that correlate clinically and advised repeat USG correlation. Ex.A-5 is the Discharge Summary of Promed Hospital for the Hospitalization and treatment taken by the Complainant from 11.01.2022 to 13.01.2022, it was mentioned that the Complainant was admitted for abdominal pain x 3days intermittent assessment with vomiting>No history of fever, History of gall stone+, and in the Course in the Hospital column it was mentioned as MRCP showed : Normal study, USG-Abdomen showed : Fatty liver. A-6 is the Scan report given by the 1st Opposite Party for Ultrasonogram – Whole Abdomen which was taken by the Complainant on 19.01.2022, that is after the discharge from Promed Hospital, wherein the 1st Opposite Party had reported Gall Bladder as “Adequately distended, A small Calculus measuring 0.27 cm noted in the neck of the gall bladder”. A Scan report taken at Omundurar Government Hospital was filed and marked as Ex.A-7, wherein it was reported that No calculus. Ex.A-8 is the Legal notice dated 26.02.2022 sent to the Opposite Parties mentioning about the wrong reports given on 19.06.2021, 11.12.2021 and 19.01.2022 by the 1st Opposite Party as well as consequences faced after such wrong report dated 19.06.2021 and 11.12.2021 been provided by the 1st Opposite Party and had sought for compensation for damages with reimbursement of medical expenses and acknowledgement for receipt of the said legal notice by the Opposite Parties was filed and marked along with Ex.A-8. Ex.A-10 are the Bills of Scan taken at the 1st Opposite Party’s Scan centre, Medical Bills and Pharmacy Bills issued by Promed Hospital, Medical Bills and Pharmacy Bills issued by Gem Hospital.
57. Though the Opposite Parties contended that the Complainant had produced any substantial evidence in support of the claim made in the complaint and the Complainant has not examined any of the doctors under whom she had undergone treatments and had not produced the details of treatments and the medicines prescribed to her and taken by her in the in between periods, as there many so many factors which may result change or the outcome of the reports which totally depends upon the diet, usage of drugs, life style changes, etc., and the Complainant had approached with unclean hands, the said contentions are not sustainable, as the Scan report, Ex.A-1 given by the 1st Opposite Party on 19.06.2021 reporting 3 mm calculus in the body of the Gall Bladder and believing the report the Complainant had consulted her Doctor and as per Ex.A-1 the doctor had advised for immediate surgery explaining the risk on movement of stone from body of the Gall Bladder to the neck of Gall Bladder, the Complainant due to her family situation had postponed the surgery advised by the said doctor. And thereafter when again the Complainant sustained stomach pain on 11.12.2021 she had approached the 1st Opposite Party for taking Abdomen Scan and as per the Scan report dated 11.12.2021, Ex.A-3, the 1st Opposite Party had reported 0.26 cm calculus in the neck of Gall Bladder. Thereafter when she had stomach pain again on 10.01.2022 she had approached Gem hospital and consulted Dr.Sreeram (Surgical Gastroenterology), as evidenced from Pharmacy Bills, OPD Sheet of Gem Hospital and Cahs Bill found in Page Nos.61,62 and 63 of Ex.A-10.
58. Thereafter the Complainant found to be admitted at Promed hospital on 11.01.2022, where she has been advised to take MRI and Ultrasound before surgery for confirmation, and accordingly took Ultra High Field 3T MRI Upper Abdomen and MRCP, found in Page No.9 of Ex.A-4, wherein Gall Bladder was reported as “Gall Bladder well distended, appears normal in contour and wall thickness. No demonstrable T2 hypointense shadows seen in neck and in brackets it was mentioned as (previous USG noted small 3mm calculus in GB neck ? sludge/? Radiolucent calculus) and in the Impression Column it was mentioned as No demonstrable T2 hypointense shadows seen in neck (previous USG noted small 3mm calculus in GB neck ? sludge/ Radiolucent calculus) and CBD appears normal. No CBD calculus seen. And it was mentioned that correlate clinically and advised repeat USG correlation, which was correlated by Ultrasound Abdomen Report dated 12.01.2022 taken by the Complainant at Promed Hospital, found in Page no.7 of Ex.A-4 wherein the Gall Bladder was reported as “Gall bladder is normal sized. No demonstrable calculus is seen” and in the Impression Column it was mentioned as Fatty Liver. And only then the Complainant’s surgery was aborted as there was no issues in the Gall Bladder and had advised for regular treatment for her stomach pain. Hence it would be clear that based on the Scan report dated 19.06.2021 of the 1st Opposite Party, Ex.A-1, the Complainant has been informed about the risk of movement of stone from body to the neck of Gall Bladder and plan of Laparoscopic Cholecystectomy, further based on the Scan report dated 11.12.2021 wherein 0.26 cm calculus reported in the neck of Gall Bladder, the Complainant was advised for surgery, though the surgery would not have been performed before confirmation of the then/present status of the Gall Bladder by repeating Ultrasound Scan, in the present case the Complainant was subjected for MRI Abdomen Scan which could have been avoided and the same was done due to the Scan Reports given by the 1st Opposite Party, Ex.A-1 and Ex.A-3. Though the Opposite Parties had produced the Maintenance and service reports of the Scan machines Exs.B-2, B-7 and B-8 as well as the Proof of Qualification of the person who has taken the Scan, but the procedures like subjecting a person for abdominal scan with empty stomach scan has not be produced and has not proved that only after proper advise to the Complainant the Scan was taken following the procedures, as it was pointed out by the Counsel for Complainant that the Complainant was not advised to come with empty stomach, no evidence has been produced to substantiate that the Scan of the Complainant has been taken following the procedures. Hence, though the scan machine is in good working condition and the person who has given report based on the pictures/images found during investigation from the machine, if the required procedures are not followed would result in a wrong report, as happened in the present case. Further when the Complainant to cross verify whether the Scan taken at the Opposite Parties Centre is correct and bonafide, when she has taken MRI and Ultrasound Scan on 12.01.2022 and reported with No Calculus seen, Ex.A-4,the Complainant had subjected for abdominal Scan on 19.01.2022 and the report given by the 1st Opposite Party that 0.27cm noted in neck of gall bladder, would also prove and clearly establish that the report given by the 1st Opposite Party is wrong.
59. It is to be considered the level of mental agony sustained during the receipt of Scan Report, Ex.A-1 and advise of surgery to be performed, based on the Scan report, Ex.A-1 as well as during the receipt of the Scan Report Ex.A-3 and surgery to be fixed based on the Scan Report, Ex.A-3.
60. Therefore this Commission is of the considered view that the Opposite Parties had committed deficiency of service by providing wrong scan reports to the Complainant which resulted in serious mental agony to the Complainant. Accordingly Point No.1 is answered.
POINTS NO 2 & 3
61. As discussed and decided in Point No.1, that the Opposite Parties have committed deficiency in service, the Opposite Parties are liable to pay a sum of Rs.5,160/- being the scan charges/fees paid to the 2nd Opposite Party by the Complainant and to pay a sum of Rs.50,000/- towards deficiency of service and mental agony, along with cost of Rs.5,000/- litigation. Accordingly, Point Nos. 2 and 3 are answered.
In the result, the complaint is allowed in part. The Opposite Parties 1 and 2 are directed jointly and severally to pay a sum of Rs.5,160/- (Rupees Five Thousand One Hundred and Sixty Only) being the scan charges/fees paid to the 2nd Opposite Party by the Complainant and to pay a sum of Rs.50,000/- (Rupees Fifty Thousand Only) towards deficiency of service and mental agony, along with cost of Rs.5,000/- (Rupees Five Thousand Only) to the Complainant, within 8 weeks from the date of receipt of this order, failing which the above amounts shall carry interest at the rate of 9% from the date of receipt of this order till the date of realisation.
Dictated to Steno-Typist, transcribed and typed by her, corrected and pronounced by us in the Open Commission, on 15th of June 2023.
S. NANDAGOPALAN T.R. SIVAKUMHAR B.JIJAA
MEMBER II MEMBER I PRESIDENT
List of documents filed on the side of the Complainant:-
Ex.A1 | 19.06.2021 | Scan report issued by 1st Opposite Party |
Ex.A2 | 19.06.2021 | Doctor consultation by the Complainant at promoted Hospital |
Ex.A3 | 11.12.2021 | Scan report issued by 1st Opposite Party |
Ex.A4 | 12.01.2022 | MRI & Abdominal Scan done at Promed Hospital |
Ex.A5 | 13.01.2022 | Discharge summary of the Complainant |
Ex.A6 | 19.01.2022 | Scan report issued by 1st Opposite Party |
Ex.A7 | 02.02.2022 | Scan report taken at Omandurar Government Hospital |
Ex.A8 | 26.02.2022 | Office copy legal notice caused by the Complainant with A.D Card |
Ex.A9 |
| Leaflet showing the various center |
Ex.A10 |
| Bill Summary with Bills |
Ex.A11 | 11.01.2022 | Death certificate of Father-in-law of the Complainant |
List of documents filed on the side of the Opposite Parties:-
Ex.B1 | 06.07.2017 | The copy of the certificate of Registration bearing Reg.No.PNA/3612/17. |
Ex.B2 | 01.12.2022 | The copy of the Maintenance Report of the Machines |
Ex.B3 | 27.04.2013 | The copy of the Degree Certificate of the 1st Opposite Party |
Ex.B4 | 03.04.2013 | The copy of the Medical Registration Certificate of the 1st Opposite Party |
Ex.B5 | 31.07.2017 | The copy of the Degree Certificate of the 1st Opposite Party |
Ex.B6 | 11.04.2018 | The copy of the Additional Qualification Registration Certificate of the 1st Opposite Party |
Ex.B7 | 01.04.2021 | The copy of the service report of the machines |
Ex.B8 | 01.06.2022 | The copy of the service Report of the machines |
S. NANDAGOPALAN T.R. SIVAKUMHAR B.JIJAA
MEMBER II MEMBER I PRESIDENT
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