DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MALDA, MALDA D.F.ORIGINAL CASE No.17/2008. Date of filing of the Case: 25.02.2008 Complainant | Opposite Parties | Smt. Pinki Chakraborty (21 years) W/O. Sri Praduna Chakraborty Vill. Vidyasagar Pally P.O. Jhaljhalia, P.S. Englishbazar, Dist. Malda (W.B). | 1. | The Proprietor Banterio Clinical Laboratory P.O. Mokdumpur, P.S. Englishbazar, Dist. Malda. (W.B). | 2. | Dr. Kalyan Kumar Misra Sakuntala Mansion K.J. Sannyal Road P.O. Mokdumpur, P.S. Englishbazar, Dist. Malda. (W.B). | 3. | Dr. R.K. Kundu 1/6 Singatala Hospital Road, P.O. Mokdumpur, P.S. Englishbazar, Dist. Malda. (W.B). | 4. | Proprietor Sonoscan Diagnostic Centre B.G. Road, P.O. Mokdumpur, P.S. Englishbazar, Dist. Malda. (W.B.). | | |
Present: | 1. | Shri A.K. Sinha, Member | 2. | Smt. Sumana Das, Member | | |
For the Petitioner : Joynarayan Chowdhury, Ajoy Chatterjee, Advocates. For the O.Ps.: For the O.P.No.1 Abhijit Sarkar, Shyamal Satiar, For the O.P. Nos. 2 & 4 Tarit Ojha & Md. Ziaullah. For the O.P. No.3 . None. Order No. 16 Dt. 16.07.2008 The gist of the case in brief is that the petitioner Smt. Pinki Chakraborty, 21 years, a housewife attended Dr. K. K. Mishra hereinafter to be called (O.P. No.2) along with her husband on 19.01.2008 when her monthly period stopped since November 2007 and she suspected her pregnancy O.P. No.2 examined her and advised for urine test by Bacterio Clinical Laboratory (hereinafter to be called O.P. No.1). The petitioner alongwith her husband visited O.P. NO.1 when the O.P. No.1 handed over one vial for collection of urine. She collected her urine and deposited the vial to O.P. No.1.After collecting laboratory report of O.P. No.1 she then attended O.P. No.2 along with her husband on the self same date. The urine test report was found positive and on the basis of the test report O.P. No.2 advised some medicines which was followed by the petitioner for about a month. During taking of such medicines, the petitioner felt weakness, reeling of head and on 31.01.2008 she alongwith her husband attended O.P. No.2. O.P. No.2 after examining the petitioner advised further medicines and after taking such medicines the petitioner was feeling weakness and uneasiness in the body. The petitioner reported her health conditions on 9.2.2008 to O.P. No.2 when he suggested for US.G. of lower abdomen. The USG was done at Bengal x-Ray & Scan Centre on 10.02.2008 and report of U.S.G. turned negative. The petitioner produced the U.S.G. report on 11.02.2008 when she was advised further urine test and on the same day she along with her husband attended Sonoscan Diagnostic Centre (hereinafter to be called O.P. No.4) for her urine test. O.P. No.4 supplied one pot for collection of urine and she collected her urine in the pot coming to her home and again with husband visited O.P. No.4 to deposit the sample urine. The test report was found negative. The petitioner visited O.P. No.2 on 13.2.2008 alongwith her husband and produced urine test report of O.P. No.4. On perusal of the report the O.P. No.2 advised further medicines which she followed, on 19.02.2008 the husband of the petitioner lodged a complaint in writing before CMOH Malda praying for legal action against O.P. No.1 but no result yielded and therefore the petitioner files this case in this Forum for the reliefs as have been prayed for in the petition of complaint. O.P. NO.1, 2 and 4 have filed separate written versions. All O.P. Nos. have denied the material allegations. We can very safely say at the very outset that such type of written statements are not expected of a Doctor, and Laboratory test centers who are the custodian of life of the general public. The opposite parties took very fantastic plea that neither the petitioner was examined at their centers nor there is any evidence of examination of the petitioner, nor there is any evidence of examination of urine, nor any amount was charged for examinations and advices. By that pleas the O.Ps. have tried to say that the very case of complainant is false. She was never examined by then and therefore, there is no question of any wrong diagnosis. In para 10 of the statement of O.P. No.1 alleged that on 19.1.2008 many persons come to the laboratory of the O.P. and handed over different kinds of samples for different types of examinations. It is also averred that as per common practice, the samples are received by the O.P. or his assistants, label the specimens with name of patient, name of referring doctors as per statement of the party, send the same to laboratory room and after the test is over report is handed over to the persons who come to collect the same disclosing their names. It is also alleged that any sample is not received after rigid verification of identity and there could happen a false personation, or the petitioner could have taken dishonest means fraudulently replacing a false sample in place of actual sample just to put this O.P. into harassment. The sample was not properly sealed and signatured at the time of handing over the sample to the O.P. for test. O.P. No.2 who is a MBBS, DGO, M.D. a Gyneacologist of Malda District Hospital in his written statement has denied to have examined the petitioner, advised for urine tests, U.S.G. to confirm her pregnancy and prescribed medicines but admitted that scientific examination confirms the clinical observation or may rebut the clinical examination and a doctor cannot ignore the result of scientific examination like tests. This O.P. No.2 also admitted that whatever this respondent did on the basis of result of scientific examination; the contests of complaint also suggest that this respondent was led upon the scientific examination and on the basis of scientific examination this respondent treated the patient. O.P. No.4 also as usual has denied all material allegations of the petition of complaint but admitted in para 16 of his written version that laboratory of this O.P. is equipped with latest scientific equipments. The scientific appliances displayed the result and the O.P. is bound to record the result. The result given by the O.P. has been confirmed from the U.S.G. report. O.P. No.3 neither appears and nor files his written version. The case against him will be heard exparte. From the pleading of both parties the following points are taken up for effective disposal of the case. 1) Whether the petitioner is a consumer? 2) Whether the services of the O.Ps. suffer from deficiency? 3) Whether the petitioner is entitled to the reliefs as prayed for? :DECISION WITH REASONS: Point No.1: A person is said to be a ‘consumer’ under Sec.2(1)(d)(ii) of the Consumer Protection Act 1986 who hires the services for a consideration paid or promised, partly paid or promised……………etc. In the instant case the petitioner has examined herself as P.W. – 1, produced the original prescription of O.P. No.2 marked Ext.1, where in it shows that she was examined on 19.1.2008 and on subsequent dates, Ext.2 evidently establish that she got her pregnancy test from the Laboratory of O.P. No.1. Ext.3 and 4 also go to show that the petitioner got her urine test and U.S.G. abdomen from O.P. No.4 and O.P. No.3 respectively and Ext.6 series goes to say that he prescribed medicines as per advice of O.P. No.2 given in Ext.1 on payment of considerable amount. Thus it can safely be concluded that the petitioner is ‘consumer’ as per C.P. Act. This point is thus disposed of in the affirmative. Point No.2&3: Both the points are taken together as they are interrelated. We have carefully gone through the entire evidentiary material on record, perused the written arguments of O.P. No. and heard ld. advocate for the petitioner as well as Ld. advocate of O.P. No.2 and O.P. No.4. O.P. No.3 does not appear in the Forum to defend his case and therefore, his case will be heard exparte. At the out set it may be observed that P.W. – 1 in her examination in chief as well as filing Ext.1 to 7 has stated that her monthly period stopped in November 2007 and she suspected pregnancy. Accordingly on 19.1.2008 she accompanied her husband attended the chamber of O.P. No.2 who is an obstetrician and Gyneacologist posted to Malda District Hospital. The O.P. No.2 examined P.W. – 1 and advised 4 items of medicines along with test of urine for B. HCG test as it appears from Ext.1. It also appears from Ext.1 that O.P. No.2 has noted the last monthly period of P.W. – 1 ( LMP) being 9.11.2007. Ext.1 also reveals that after clinical examinations of P.W. – 1 the O.P. No.2 advised 4 items of medicines and lastly advised “urine for B. HCG test”. It seems that this O.P. was clinically confirmed the pregnancy of P.W. – 1 and to be more sure he sought for laboratory report. It appears from the testimony of P.W. – 1 that on the self same date i.e on 19.1.2008 she along with husband attended O.P. No. – 1 as per verbal suggestion of O.P. No.2 (which this O.P. stated to be speculative in his version) for her urine test, who was handed over one vial for collection of urine at home, the same was collected by P.W. – 1 at her home again came back to O.P. No.1, deposited the some for test and collected the report (Ext.2) which resulted ‘positive’ and then produced Ext.2 before O.P. No.2. It is implied that O.P. No.2 on going through the Ext.2, tested by O.P. No.1, was confirmed about the pregnancy and asked to follow the prescription already advised. P.W. – 1 stated that during taking of the medicines (Ext.1) she felt weakness and reeling of head and for which she alongwith her husband visited O.P. No. – 2 on 31.1.2008 and reported her complaint of health condition of taking the advised medicines. It appears from Ext.1 that O.P. No.2 on 31.1.2008 advised some other medicines obviously on examining the P.W. – 1. It further appears from the testimony of P.W. – 1 that after taking the medicines of O.P. No. – 2 she gradually feeling weakness and uneasiness in the body and for which she alongwith her husband attended O.P. no.2. A perusal of Ext.1 dated 9.2.2008 it reveals that O.P. No.2 advised 3 items of medicines and also advised for U.S.G. of lower abdomen. Perusal of Ext.4, which is the U.S.G. report of O.P. No.3 done on 10.2.2008, it is revealed that ‘Sonographic evaluation reveals the pelvic organs are within normal limit and the uterus is not gravid at present’. The report was put up to O.P. No.-2 by P.W. – 1 who accompanied her husband on 11.02.2008 and O.P. No.-2 on perusal of the above, advised for urine for B. HCG test. P.W. – 1 complied with the advised of O.P. No.2 and got her urine for B. HCG test by O.P. No.4 on 13.2.2008. Ext.3 is the report of O.P. No.4 which shows the result of BETA HCG Test ‘Negative’. P.W. – 1 appeared before O.P. No. 2 with Ext.3 on 13.2.2008 and the O.P. No.2 left a simple note in Ext.1 that pregnancy test negative and advised some medicines. Let us discuss whether there is any negligence and deficiency of service on the part of O.P. No.2 in the light of above evidences available as well as from the version of O.P. No. 2. After hearing the ld. advocate for the petitioner one has to only understand what duty of care the doctor / pathologist owes to the patient. This question has been gone into by the Forum and several judgement of the Hon’ble Supreme Court and House of Lords. Relevant Rule of “Halsbury’s laws of England Vol-26 (3rd Edition) page – 17 – 18” reads as under:- “22 Negligence:- Duties owed to the patient. A person who holds himself out as ready to give medical advice or treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person, whether he is a registered medical practitioner or not, who is consulted by a patient, owes him certain duties, namely a duty of care in deciding whether to undertake the case; a duty of care in deciding what treatment to give and a duty of care in his administration of that treatment. A breach of any of these duties will support an action for negligence by the patient.” The above observation is come across in 2008 CTJ 50 (CP) (NCDRC). We have also taken the assistance of the observation of Hon’ble the Supreme Court in the Case of Achcetrao Haribhau Khodwa and other VS State of Maharashtra and others, 1996 CTJ 950 (SC)(CP) = (1996) 2 SCC 634 has made the legal position clear in following words:- “A medical practitioner has various duties towards his patient and he must act with a reasonable degree of skill and knowledge and must exercise the reasonable degree of care. This is the latest which a patient expects from a doctor………… But in cases where the doctor act carelessly and in a manner which is not expected of a medical practitioner, then in such a case an action in torts would be maintainable.” Let us scrutinize the evidences referred to hereinabove, in the light of the observations of the Apex Court mentioned above to find out whether the O.P. No.2 has exercised a care in deciding what treatment to give or whether the O.P. No.2 has exercised the reasonable degree of care which the P.W. – 1 expected from him. It appears from the record that P.W. – 1 does not have her monthly period from 9.11.2007 after a lapse of over two months. It is implied on perusal of Ext. – 1 that O.P. No.2 was satisfied from clinical examination of P.W. – 1 that she has conceived off and therefore he advised 4 items of medicines to follow. These drugs obviously suggested to have advised for restoration of the pregnancy and for further confirmation he sought for scientific test of urine for BETA – HCG test which accordingly to O.P.W. – 2 is one of the diagnostic test of pregnancy and is not sufficiency to determine pregnancy, who gave his expert evidence us a gyneacologist having degree of MBBS, GDO, MD and experience of about 18 years in Government Hospital, O.P.W. – 2 has also opined that clinical correlation and other investigation like USG is necessary to confirm the diagnosis of pregnancy. It is on record that P.W. – 1 on 19.1.2008 as per verbal suggestion of O.P. No. –2 visited O.P. No. –1 who handed over a vial for collection of urine, P.W. – 1 collected urine in the said vial at her home deposited the same with O.P. No.1 and collected test report (Ext.2) and produced the same on the self same date. It is also available from the testimony of O.P.W. – 2 who has been running private practice at Malda wherein he stated that “I cannot make high recommendation about the O.P. No. 1 (Prop:- Bacterio Clinical Laboratory, Mokdampur, Malda.)” Further evidence on record goes to show that O.P. No.2 was not perturbed and did not show reasonable degree of care on 31.1.2008 when P.W. – 1 visited him with complaint of weakness, reeling of head after following the medicines, which were purchased from M/s. Shubha Medicine Hall, B.S. Road Malda under proper receipts (Ext.6 series). This O.P. advised further medicines. P.W. – 1 had suffered a lot by that time since taking up the medicines advised by O.P. No.2 in Ext. – 1 on 19.1.2008 and attended on 9.1.2008 with complaint of weakness, uneasiness in the body and only when this O.P. No.2 has sought for the advanced scientific test i.e. USG of lower abdomen including his further advice of same medicines. Ultimately the USG report done by O.P. No.3, a qualified doctor having degree of MBBS, DMRD and result of USG turned negative which was subsequently confirmed from ext.3 prepared by Dr. Amitabha Saha, MD (Path). It appears from the oral testimony O.P.W. – 1 who is O.P. no.1 that he is a Bio-chemist and not a doctor having degree in B.Sc, DMLT and O.P.W. – 2 who adduced evidence as expert sated that he cannot make any high recommendation about O.P. No.1 under the above scenario it can safely be said that had the P.W. – 1 been first sent to a laboratory run by registered pathologist doctor and USG of lower abdomen before prescribing medicines for restoration of pregnancy on 19.1.2008 the P.W. – 1 would not have suffered both physically and mentally. Moreover, this O.P. No. – 2 was found reluctant to discharge a reasonable degree of care and a duty of care in deciding what treatment to give to his patient when P.W. – 1 further complaint of weakness and uneasiness in the body on taking the medicines and appeared before him on 31.1.2008. In view of above facts and circumstances this Forum is of the opinion that O.P. No.2 did not exercise reasonable degree of care and committed breach of duty of care in deciding what treatment to give which support an action for negligence. The service of the O.P. No. – 2 therefore, suffers from deficiency and the petitioner is entitled to get reasonable compensation for her sufferings from physical, mental and monetary aspects. Let us scrutinize the written statement of O.P.NO. – 1 and evidence on record to find out as to whether there is any negligency and deficiency of service on the part of O.P. No.1 (Prop:- Bacterio Clinical Laboratory). This O.P. took a very fantastic plea that neither the petitioner was examined at the centre, nor there is any evidence of any examination of urine, nor any evidence is available regarding this examination, nor any amount was charged for any such examination and sparing many many words, the O.P. has tried to say that the very case of the petitioner is false. She was never examined by him and therefore, there is no question of any wrong diagnosis. It is also alleged that the case has been filed purely to get money from the O.P. According to O.P. No. –1 that in any manner sample was not received after rigid verification of identity. As such there were reasonable doubt as to the fact whether the actual sample was brought to the laboratory or not? It was also fact that where was no identification of the patient or sample itself, so the question lies that there could be happen a false personation or the complainant could have taken dishonest means, fraudulently replacing sample in place of actual sample in order to put the O.P. into harassment. The O.P. also raised question that there is no proof that in whose presence the sample was collected and which sample was obtained and whether it was properly sealed and signed at the time of handing over the sample to the laboratory. The averment of the O.P. No.1 turns ridiculous when we find in his own admission about the day-to-day practice of receiving samples from patient party and delivery of the results of tests from his laboratory. It is admitted in the written statement that “many persons came to his laboratory on 9.01.2008 and handed over different sample for different examinations. As soon as those samples were received at Laboratory Counter, as per customs, those samples were labeled with the name of the patient, referring doctors etc as told by the persons who brought those samples and thereafter those were sent to laboratory room for necessary test. After such test is over, the results were used to be written in prescribed form of Report and handed over to the person who came to collect the same quoting the respect5ive name, which they told at the time of bringing the samples.” It is therefore, proper to say that if a pathological laboratory runs in such a manner, examine various samples in this way is not a person who should be allowed license for urine, blood etc examinations. This Forum finds the opportunity to take the assistance of the observation passed in Appeal Case No.491 of 2003 Dr. Ranjan Sarma VS: Simaranjeet Kaur refreed to 2005 CTJ 1074 (CP)(SCDRC) which came up almost in similar case like the present one. In para 3 of the above it was remarked ……“This doctor should not have conducted examination in this way that any body comes with sample, gives it for examination, without ascertaining his identity and genuineness he examines the blood. This itself shows that the doctor is guilty on his part otherwise he should not have taken such plea.” In para 5 of the observation appears relevant to this case when this O.P. no.1 in his written statement supported his case by saying with reference to Book “ Practice of clinical Medicine” every laboratory test result ought to be correlated clinically that “ Merely by writing that correlate with clinical finding and other investigation for final diagnosis, the doctor is not absolved of his liabilities, we could have taken a lenient view and could have also thought of reducing the compensation but such a doctor who takes and examine the blood of another person, writes the name of another patient, gives his report and the other day says it that it was not her blood instead sample was produced by somebody else is not entitled to any leniency by any court or Forum.” This Forum also takes the assistance of the observations of appeal case No.763 of 2000 appearing in 2008 CTJ 50 (CP) (NCDRC) which has already been referred to in the foregoing paragraphs with reference to several judgements of the Hon’ble Supreme Court and House of Lords. Relevant rule of Halsbury’s Laws of England – Vol – 26 (3rd edition) pages – 18” reads as under: - “22 negligence ………a duty of care in deciding whether to under take the case, a duty of care in deciding what treatment to give and a duty of care in his administration of that treatment. A breach of any of these duties will support an action of negligence by the patient.” This O.P. has referred relevant portions of medical literatures and made frustrated attempts to convince that there are so many probabilities which may the give result of tests of urine ‘positive’ inspite of the patient concern has not conceived of. The factors responsible for positive result in the test of urine are not diagnosed in Ext.1 one of other factor presence of soap / detergent in the post which may result of test ‘positive’ has been inducted by the O.P. and it seems that this factor is very much within his knowledge and inspite of the fact he runs the practice to handover the pot to the patient party for collection of urine outside his laboratory, as usually practice although he admitted that his laboratory is equipped with two bathrooms, such conduct cannot but be termed as negligence due to failure to exercise reasonable degree of care. Further he admitted that urine test is a chromatographic test which is based on “Immunochemistry”. Ext.2 does not reflect the method of test applied by him as is noticed in Ext.3 which is urine for Beta H.CG Test done by O.P. No.4. In cross examination also this O.P. no.1 as O.P.W. – 1 admitted that he has not mentioned the ingredient utilized for the test. If we compare the test report (Ext.2) of the O.P. with that of Ext.3 prepared by O.P. No.4 the quality, standard of Laboratory and nature of performance rendered by O.P. No.1 will be transparent. The petitioner left no stone upturn to draw immediate attention of CMOH, Malda for taking legal action against O.P. No.1 stating the details of incident and physical condition of his wife who has been bed ridden being the victim of wrong test report of urine which is marked Ext.5, but unfortunately it yielded no result as yet. In view of the above, facts and circumstances and after giving anxious thought this Forum holds that O.P. no.1 guilty of deficiency in service. No deficiency of service has been established as against O.P. No. 3 and 4 and therefore the cases against them are liable to be dismissed. Hence, ordered, that Malda D.F. Case No.17/2008 is decreed on contest against O.P. No.1 & 2 (The Proprietor, Banterio Clinical Laboratory, P.O. Mokdumpur, P.S. Englishbazar, Dist. Malda, W.B and Dr. Kalyan Kumar Misra, Sakuntala Mansion, K.J. Sannyal Road, P.O. Mokdumpur, P.S. Englishbazar, Dist. Malda. W.B) and dismissed against O.P. No.3 & 4 (Dr. R.K. Kundu, 1/6 Singatala, Hospital Road, P.O. Mokdumpur, P.S. Englishbazar, Dist. Malda. W.B and Proprietor, Sonoscan Diagnostic Centre, B.G. Road, P.O. Mokdumpur, P.S. Englishbazar, Dist. Malda. W.B.). The petitioner do get compensation @Rs.25,000/- (rupees twenty five thousand) only from each of the O.Ps. No.1 & 2. Both the O.P. No.1 & 2 do pay the aforesaid quantum of money within a period of 30 days from the date of this order in default the amount shall carry interest @9% per annum. Failure to comply this order the petitioner will have liberty to take recourse to law. Let copy of this order be given to both parties free of cost at once. Sumana Das A. K. Sinha Member Member D.C.D.R.F., Malda D.C.D.R.F., Malda | 
