Order by:

Sh.Amrinder Singh Sidhu,  President.

1.       This complaint has been received by  transfer from District Consumer Forum (now Commission), Tarn Taran vide order dated 20.08.2018 of Hon’ble State Consumer Disputes Redressal Commission, Punjab Chandigarh to this District Consumer Commission, Moga.

2.       The  complainant  has filed the instant complaint under section 12 of  the Consumer Protection Act, 1986 (as amended upto date) on the allegations that she was 34 weeks pregnant on 01.02.2018 and on that day, she alongwith her husband went to Opposite Party No.1 for got conducting ultrasound with regard to pregnancy status and health of child in womb. The Opposite Parties conducted ultrasound and gave report by Opposite Party No.1 which is duly signed by Opposite Party No.2 with the impression that  “Ongoing Pregnancy of 34wld+1w0d With Cephalic Presentation and …?Loop of Cord Around Foetal Neck.”. Further alleges that on 15.02.2018, the complainant  went to Civil Hospital, Patti for checkup and the doctor advised for conducting/ examination another ultrasound. Again the complainant went to Opposite Party No.1 where Opposite Party No.2 conducted ultrasound and gave ultrasound report and in this report, they gave impression that “Ongoing Pregnancy of 36wld+1w0d With Cephalic Presentation and …?Loop  Lying Placenta, …?Loop of  Cord Around Foetal Neck.”.    After receiving the report from Opposite Parties, the complainant alongwith her  husband went to Civil Hospital, Patti where Dr.Prabhjot Kaur after seeing the Ultrasound report told that as per this Ultrasound report, there is very dangerous (risk) to her life and child in womb and the doctors of Civil Hospital, advised the complainant to go Bebe Nanki Ward Guru Nanak Dev Hospital, Amritsar for treatment. On 18.02.2018 the complainant alongwith her husbanbd went to Bebe Nanki Ward Guru Nanak Dev Hospital, Amritsar where the treating doctor seen the Ultrasound conducted from Opposite Parties. Then the doctors again conducted Ultrasound report in Guru Nanak Dev Hospital, Amritsar from Ultrasound centre on 18.02.2018 and after seeing the report of Ultrasound told the complainant that the condition of the child in womb is normal and there is no risk to child in the womb.  The doctors of Bebe Nanki Ward Guru Nanak Dev Hospital, Amritsar gave medicines to the complainant and sent back home. On 01.03.2018, the complainant gave birth to a daughter through normal delivery at home and new born baby and complainant were healthy. Further alleges, that all the reports which were given by Opposite Parties No.1 and 2  were suspicious and if the treatment was conducted according  to the Ultrasound reports given by Opposite Parties No.1 and 2,  then there may be danger  to the life of complainant as well as child. Hence, there is deficiency in service on the part of the Opposite Parties.  Thereafter, the complainant made so many requests to Opposite Parties No.1 and 2  to make good the loss suffered by the complainant, but to no affect.             Vide instant complaint, the complainant has sought the following reliefs.

a)       To direct the Opposite Parties to  pay Rs.10 lakhs on account of giving wrong Ultrasound reports  and also pay Rs.5 lakhs on account of damages  and compensation for unnecessary harassment, inconvenience, agony and mental  tension or any other relief to which this District Consumer Commission may deem fit and proper be granted.

3.       On notice, Opposite Parties No.1 and 2  appeared through counsel and contested the complaint  by filing the written version taking preliminary objections therein inter alia that the present complaint is wholly misconceived, groundless, frivolous in the eyes of law and has been filed without any justified reason against Opposite Parties No.1 and 2  only to defame and extort illegal  sum of money. No specific, scientific and justified allegations in regard to negligence or deficiency has been made by the complainant against Opposite Parties No.1 and 2 as to how he is involved and the Opposite Parties No.1 and 2  were negligent. Admittedly, on 01.02.2018 complainant visited the Opposite Party centre for getting done the USG which was done diligent and report was handed over to the patient. The patient again visited on 15.02.2018 another USG was performed and reports were handed over to the patient party, but the times, she was advised to follow up and every time, the Opposite Parties No.1 and 2  done the work  diligently, prudently with utmost due care and caution in treating the said patient. On merits, it was submitted that Opposite Parties No.1 and 2  never told the patient that situation is dangerous or there is any danger to her life and her baby. No other doctor has also told that there is any danger to anyone by seeing the report. The complainant has concealed the facts and has given a false statement of Dr.Prabhjot Kaur without any sworn statement from the said doctor. As per the doctor, the patent came to her with bleed per vaginam, thus the patient was not healthy, and the patient was  referred to Guru Nanak Dev Hospital, Amritsar due to non availability of blood. Also, the patient has misled the court and concealed the fact that the patient was not declared healthy by the Guru Nanak Dev Hospital, rather as per their records, the patient went against the medical advice and absconded from there. True facts are that everything was done diligently, prudently in performing  these two Ultrasounds and there is no negligence, unfair trade practice or deficiency in service on the part of Opposite Parties No.1 and 2. Neither of the report given by the Opposite Parties is suspicious. As the patient stated both mother and baby are in good health, so there was no damage. As it is clearly mentioned in both reports that there is cord  around the neck  and obigobydramnious which required medical attention. The second report  mentioned the doubt (with a query mark) placenta to be in the lower segment, and also it was asked to have follow up check (Repeat scan) as mentioned in report to verify the findings. Opposite Parties further stated that the USG is finding of computer generated image interpreted by the Professional radiologist. There is always the chance of one % to five % false positive and false negative reports generated due to sensitivity and specificity of the USG machine. The radiologist is a physician specialized in radiology, the branch of medicine that uses computer generated images produced by USG for the diagnosis. It was clearly mentioned that the Ultrasound is merely a professional opinion and clinical correlation and further investigations were advised. Opposite Party No.2 doctor did not prescribe any treatment, she just  gave an opinion based on her perception of internal structures of the body which are computer generated images by use of USG. No doctor at anywhere has pointed out any negligence on the part of the Opposite Parties and hence, there is no deficiency in service on the part of Opposite Parties No.1 and 2.

4.       Opposite Party No.3 appeared separately through counsel and contested the complaint  by filing the written version taking preliminary objections therein inter alia that the complaint is not maintainable; that  the complainant has got no locus standi to file the present complaint; that no deficiency in service has been attributed to the Opposite Party No.3 and from the allegations in the complaint no deficiency in service is made out.  Moreover, as per the terms and conditions of the policy, the Opposite Parties No.1 and 2 have should have informed the Opposite Party No.3. Moreover, the Opposite Party No.3 is liable to indemnify the Opposite Parties No.1 and 2  if they have acted  with utmost care and  devotion to the medical profession and has treated the patient as per rules of the medical practice, so the complainant against answering Opposite Party is not maintainable and the same deserves dismissal. On merits, Opposite Party No.4 took up almost the same and similar plea as taken up by them in the preliminary objections   and hence, the complainant is liable to be dismissed.               

5.       In order to prove her case, the complainant has tendered into evidence her affidavit Ex.C1 alongwith copies of documents Ex.C2 to Ex.C15 and closed his evidence.

6.       On the other hand, to rebut the evidence of the complainant, Opposite Parties No.1 to 2 also tendered  into evidence affidavit of  Dr.Avneet Kaur Ex.OP 1,2/1 and copies of documents Ex.OP1,2/2 to Ex.OP1,2/5. Similarly, Opposite Party No.3 tendered into evidence the affidavit of  Sh.Sukhwinder Singh Ex.OP3/1 alongwith documents Ex.OP3/2 and Ex.OP3/3 and thereafter closed their respective evidence. 

7.       We have heard the ld.counsel for the parties, perused the written submissions of the complainant  and also gone through the documents placed on record.

8.       Ld.counsel for the Complainant has mainly reiterated the facts as narrated in the complaint and contended that the complainant was 34 weeks pregnant on 01.02.2018 and on that day, she alongwith her husband went to Opposite Party No.1 for got conducting ultrasound with regard to pregnancy status and health of child in womb. The Opposite Parties conducted ultrasound and gave report by Opposite Party No.1 which is duly signed by Opposite Party No.2 with the impression that  “Ongoing Pregnancy of 34wld+1w0d With Cephalic Presentation and …?Loop of Cord Around Foetal Neck.”. Further alleges that on 15.02.2018, the complainant  went to Civil Hospital, Patti for checkup and the doctor advised for conducting/ examination another ultrasound. Again the complainant went to Opposite Party No.1 where Opposite Party No.2 conducted ultrasound and gave ultrasound report and in this report, they gave impression that “Ongoing Pregnancy of 36wld+1w0d With Cephalic Presentation and …?Loop  Lying Placenta, …?Loop of  Cord Around Foetal Neck.”.    After receiving the report from Opposite Parties, the complainant alongwith her  husband went to Civil Hospital, Patti where Dr.Prabhjot Kaur after seeing the Ultrasound report told that as per this Ultrasound report, there is very dangerous (risk) to her life and child in womb and the doctors of Civil Hospital, advised the complainant to go Bebe Nanki Ward Guru Nanak Dev Hospital, Amritsar for treatment. On 18.02.2018 the complainant alongwith her husbanbd went to Bebe Nanki Ward Guru Nanak Dev Hospital, Amritsar where the treating doctor seen the Ultrasound conducted from Opposite Parties. Then the doctors again conducted Ultrasound report in Guru Nanak Dev Hospital, Amritsar from Ultrasound centre on 18.02.2018 and after seeing the report of Ultrasound told the complainant that the condition of the child in womb is normal and there is no risk to child in the womb.  The doctors of Bebe Nanki Ward Guru Nanak Dev Hospital, Amritsar gave medicines to the complainant and sent back home. On 01.03.2018, the complainant gave birth to a daughter through normal delivery at home and new born baby and complainant were healthy. Further alleges, that all the reports which were given by Opposite Parties No.1 and 2  were suspicious and if the treatment was conducted according  to the Ultrasound reports given by Opposite Parties No.1 and 2,  then there may be danger  to the life of complainant as well as child and as such, there is deficiency in service on the part of the Opposite Party.

9.       On the other hand, ld.counsel for the Opposite Party has repelled the aforesaid contention of the ld.counsel for the complainant on the ground that  no specific, scientific and justified allegations in regard to negligence or deficiency has been made by the complainant against Opposite Parties No.1 and 2 as to how he is involved and the Opposite Parties No.1 and 2  were negligent. Admittedly, on 01.02.2018 complainant visited the Opposite Party centre for getting done the USG which was done diligent and report was handed over to the patient. The patient again visited on 15.02.2018 another USG was performed and reports were handed over to the patient party, but the times, she was advised to follow up and every time, the Opposite Parties No.1 and 2  done the work  diligently, prudently with utmost due care and caution in treating the said patient. On merits, it was submitted that Opposite Parties No.1 and 2  never told the patient that situation is dangerous or there is any danger to her life and her baby. No other doctor has also told that there is any danger to anyone by seeing the report. The complainant has concealed the facts and has given a false statement of Dr.Prabhjot Kaur without any sworn statement from the said doctor. As per the doctor, the patent came to her with bleed per vaginam, thus the patient was not healthy, and the patient was  referred to Guru Nanak Dev Hospital, Amritsar due to non availability of blood. Also, the patient has misled the court and concealed the fact that the patient was not declared healthy by the Guru Nanak Dev Hospital, rather as per their records, the patient went against the medical advice and absconded from there. True facts are that everything was done diligently, prudently in performing  these two Ultrasounds and there is no negligence, unfair trade practice or deficiency in service on the part of Opposite Parties No.1 and 2. Neither of the report given by the Opposite Parties is suspicious. As the patient stated both mother and baby are in good health, so there was no damage. As it is clearly mentioned in both reports that there is cord  around the neck  and obigobydramnious which required medical attention. The second report  mentioned the doubt (with a query mark) placenta to be in the lower segment, and also it was asked to have follow up check (Repeat scan) as mentioned in report to verify the findings. Opposite Parties further stated that the USG is finding of computer generated image interpreted by the Professional radiologist. There is always the chance of one % to five % false positive and false negative reports generated due to sensitivity and specificity of the USG machine. The radiologist is a physician specialized in radiology, the branch of medicine that uses computer generated images produced by USG for the diagnosis. It was clearly mentioned that the Ultrasound is merely a professional opinion and clinical correlation and further investigations were advised. Opposite Party No.2 doctor did not prescribe any treatment, she just  gave an opinion based on her perception of internal structures of the body which are computer generated images by use of USG. No doctor at anywhere has pointed out any negligence on the part of the Opposite Parties and hence, there is no deficiency in service on the part of Opposite Parties No.1 and 2.

10.     It is not the denial of the case that  on 01.02.2018 complainant visited the Opposite Party centre for getting done the USG which was done and report was handed over to the patient. The patient again visited on 15.02.2018 another USG was performed and reports were handed over to the patient party, but the times, she was advised to follow up and every time, the Opposite Parties No.1 and 2  done the work  diligently, prudently with utmost due care and caution in treating the said patient. On merits, it was submitted that Opposite Parties No.1 and 2  never told the patient that situation is dangerous or there is any danger to her life and her baby. No other doctor has also told that there is any danger to anyone by seeing the report. Moreover, no sworn affidavit of  Dr.Prabhjot Kaur is placed on record by the complainant. It is also not the denial that as the patient stated both mother and baby are in good health, so there was no damage. As it is clearly mentioned in both reports that there is cord  around the neck  and obigobydramnious which required medical attention. The second report  mentioned the doubt (with a query mark) placenta to be in the lower segment, and also it was asked to have follow up check (Repeat scan) as mentioned in report to verify the findings. Opposite Parties further stated that the USG is finding of computer generated image interpreted by the Professional radiologist. There is always the chance of one % to five % false positive and false negative reports generated due to sensitivity and specificity of the USG machine. The radiologist is a physician specialized in radiology, the branch of medicine that uses computer generated images produced by USG for the diagnosis. It was clearly mentioned that the Ultrasound is merely a professional opinion and clinical correlation and further investigations were advised. Opposite Party No.2 doctor did not prescribe any treatment, she just  gave an opinion based on her perception of internal structures of the body which are computer generated images by use of USG.

11.     Now the question arises as to whether Opposite Parties No.1 and 2  have been negligent in the instant case or not?. In this regard, we shall have to see what is meant by negligence or medical negligence. Reference in this context can be made to the observations made in Jacob Matahew Vs. State of Punjab & Anr (2005) 6 SCC 1, decided on 05.08.2005 by Hon’ble Supreme Court of India as follows:-  

(2) Negligence in the context of medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed.

12.     The question  of medical negligence also came up for hearing before  the Hon’ble Apex Court in Kusam Sjharma & Others. Vs. Batra Hospital & Medical Research Centre 2010 AIR (SC) 1050 wherein following principles were laid down as under:-

I.          Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.

II.         Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.

III.       The medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires.

IV.       A medical practitioner would be liable only where his conduct fell below that of the standards      of   a  reasonably   competent practitioner in his field.

V.     In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.

VI.       The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence.

VII.      Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.

VIII.     It would not be conducive to the efficiency of the medical profession if no Doctor could administer medicine without a halter round his neck.

IX. It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessary harassed or humiliated so that they can perform their professional duties without fear and apprehension.

X. The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals/hospitals particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners. XI. The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the  patients have to be paramount for the medical professionals.

In V.Krishan Rao appellant (s) Vs. Nikhil Super Specialty Hospital &  Another Respondents(s), Civil Appeal No. 2641 of 2010 decided on 08.03.2010 by Hon’ble Apex Court it has been laid down to the following effect:-

"A Doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art"...(See page 122 placitum `B' of the report)

18. It is also held that in the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and a doctor is not negligent merely because his conclusion differs from that of other professional men. It was also made clear that the true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with  ordinary care (See page 122, placitum `A' of the report).”

13.     Applying the principles of the judgements ‘supra’ to the facts of the present case, it becomes amply clear that the doctors have treated the couple in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art and as such Opposite Parties No.1 and 2  can not be guilty of the negligence. Not only that, no ingredient of negligence have either been pleaded nor any evidence was brought to prove any negligence allegedly made by Opposite Parties No.1 and 2  during the course of treatment. The complainant wants this District Consumer Commission to jump to the conclusion that Opposite Parties No.1 and 2  were guilty of the negligence simply because of the fact that desired result could not be achieved despite getting medical treatment as prescribed by Opposite Parties No.1 and 2. We have every reason to differ with the contention of the complainant in view of the latest law laid down in V.Krishna Rao authority ‘supra’ and other relevant laws laid down in remaining authorities referred above. We are of the considered with that the complainant has miserably failed to prove any negligence on the part of Opposite Parties No.1 and 2  nor there is any evidence regarding deficiency in service on the part of Opposite Parties No.1 and 2. There is absolutely no force in the complaint and the same requires to be dismissed.

14.     Hence, keeping in view the facts and circumstances of the case as well as supra judgements of  Hon’ble Supreme Court of India, we finds no merit in the complaint and the same stands dismissed. Keeping in view the peculiar circumstances of the case, the parties are left to bear their own costs. Copies of the order be furnished to the parties free of cost. File be consigned to record room after compliance.

15.     Reason for delay in deciding the complaint.

This complaint could not be decided within the prescribed period because the government has not  appointed any of the Whole Time Members in this Commission for about 3 years i.e. w.e.f. 15.09.2018 till 27.08.2021 as well as due to pandemic of COVID-19.

Announced in Open Commission.

Dated: 29.11.2021.