Punjab

StateCommission

FA/1404/2013

Radha Rani - Complainant(s)

Versus

Raj Nursing Home etc. - Opp.Party(s)

Dinesh Kumar

07 Jul 2015

ORDER

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        FIRST ADDITIONAL BENCH

 

STATE  CONSUMER  DISPUTES  REDRESSAL COMMISSION,   PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.

                                     

                   First Appeal No.1404 of 2013

 

 

                                                                                                                  Date of Institution: 19.12.2013                                                                                                                                                             Date of Decision : 07.07.2015

 

 

Radha Rani W/o Vinod Kumar @ Rinku s/o Ruldu Ram, r/o VPO Khetla, Tehsil Sunam, District Sangrur.                                                                                                                                                                                                                                                                                                                                                      …..Appellant/Complainant

         

                                      Versus

 

 

1.       Raj Nursing Home & Ultrasound Center, Near Police City, Old Anaj     Mandi, Sunam, District Sangrur through its owner/prop. Dr. Raj        Dulari.

2.       Dr.Anju Garg c/o Raj Nursing Home & Ultrasound Center, near Police City, Old Anaj Mandi, Sunam, District Sangrur.

3.       United India Insurance Company Limited through its Branch       Manager, Peeran Wala Gate, District Sangrur.

 

                                                          … Respondents/Opposite Parties.

 

 

First Appeal against order dated 18.11.2013 passed by the District Consumer Disputes Redressal Forum, Sangrur

Quorum:-

 

 

          Shri J. S. Klar, Presiding Judicial Member.

          Shri. Harcharan Singh Guram, Member

 

Present:-

 

 

          For the appellant                            :     Sh.Dinesh Kumar, Advocate  

          For the respondents No.1 and 2   :      Sh. Mukand Gupta, Advocate

          For the respondent no.3                :     Sh.Nitin Gupta, Advocate.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

 

 

 

J.S KLAR, PRESIDING JUDICIAL MEMBER :-

         

          The appellant of this appeal (the complainant in the complaint) has directed this appeal against the respondents of this appeal (the opposite parties in the complaint), challenging order dated 18.11.2013 of District Consumer Disputes Redressal Forum Sangrur, dismissing the complaint of the complainant. The instant appeal has been preferred against the same by the complainant now appellant in this appeal.

2.      The complainant Radha Rani has filed  the complaint U/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the OPs on the averments that  she conceived after one year of her marriage. On the advice of her in-laws, she started taking treatment from Dr. Raj Dulari Nursing Home, Sunam. She paid Rs.150/- as fee to the doctor and, thus, hired the services of the OP/Dr.Raj Dulari, who advised her for ultrasound test and she got her ultrasound test conducted from Dr. Anju Garg/OP No.2 on 10.08.2011 and paid Rs.500/- therefor. There was single live fetus of 17 weeks in uterus in vertex position.  As per report of the ultrasound, the expected date of delivery was given as 16.12.2011. Dr. Raj Dulari gave her medicines as per ultrasound examination report. The complainant shifted her treatment to Dr. Rajni Goyal of Rajan Nursing Home, Dhanaula as the parental house of complainant was near to Dhanaula. Dr. Rajni Goyal advised for another ultrasound test and it was conducted on 19.12.2011. As per report, there were twin fetus with normal cardiac activity, which were depicted in the ultrasound report. The ultrasound test conducted by OP No.2 /Dr. Anju Garg was wrong and it amounted to medical negligence on her part showing single live fetus of seventeen weeks. The treatment by Dr. Raj Dulari also amounted to medical negligence on the basis of above-referred ultrasound report made by OP No.2. The twin children were born on 12.01.2012 at 2.20 PM and 2.28 PM instead of expected date of delivery as 19.12.2011. The observation of Dr. Anju Garg dated 10.08.2011 was totally wrong that it was not possible with a pregnancy of 17 weeks i.e. 4 months and one week to show the twin status of fetus and fetal movements. Even a  normal machine can diagnose the twins of that stage of pregnancy. Even the physical examination by the gynecologist could confirm the twins, but the OPs failed to perform their duties and are, thus, guilty of medical negligence . Due to the wrong treatment and medical negligence on the part of OPs, the child was born at 2.28 pm and was not having a normal health and she was unable to grow properly. The girl child was born at 2.28 PM and ultimately died on 16.1.2012. The wrong observations were made by the doctors out of their greed only. The complainant has, thus, filed the present complaint against OPs praying for compensation of Rs.10 lac along with interest @ 18% per annum, besides payment of Rs.50,000/- for actual expenses spent on her and Rs.2 lac for compensation for mental harassment and Rs.22,000/- as litigation expenses.

3.      Upon notice, OP No.1 and 2 filed joint written reply and contested the complaint of the complainant vehemently. It was averred in written reply by OP No.1 and 2 that all treatments were prescribed on OPD Slip, which have been withheld by the complainant deliberately despite an application moved for the production of the documents by the OPs. It was further pleaded that visit of the complainant in the hospital of the OPs could only be ascertained from OPD slip. An adverse inference has to be drawn against complainant for not producing the OPD slip. It was admitted that Dr. Raj Dulari prescribed medicines after examining ultrasound report of complainant only. The OPs came to know about the treatment and second ultrasound report, after examining the contents.  The complainant or any other person on behalf of the complainant has not contacted with the OPs. Dr. Raj Dulari has no role in the ultrasound at all. The complainant has concealed the material facts from the Forum. It is specifically recorded in the report that sometimes abnormality could not be obvious or missed due to various technical reasons. Artifacts may also remove real echoes from the displays or observe information and important pathology may be missed. Shadowing results, when there is a marked reduction in the intensity of ultrasound deep to a strong reflector or attenuator. Shadowing causes partial or complete loss of information due to attenuation of the sound superficial structures. It was denied that Dr. Anju Garg was wrong in giving report. Dr. Anju Garg is a qualified doctor having degree of MBBS and diploma holder of ultrasonography with experience of three years. It was further pleaded that ultrasound is not prefect depiction of fetus and scan results cannot be 100% conclusive. It was denied that Dr. Raj Dulari was not competent for scanning. It was denied that due to treatment of the OPs, child was not having normal health. The OPs contested the complaint even on merits, alleging it to be baseless and groundless. The OPs further pleaded that they have obtained insurance policy from United India Insurance Company and they prayed for dismissal of the complaint.

4.      OP No.3 /United India Insurance Company filed its separate written reply and denied the averments of the complainant pleading that neither the complainant nor OPs ever intimated the OP No.3 about this matter. The complainant is entitled only, if she proves negligence of Dr. Anju Garg. As per terms and conditions of the policy, complaint is alleged to be false and frivolous. OP no.3 prayed for dismissal of the complaint.

5.      The complainant tendered in evidence expert opinion Ex.C-1, copy of degree Ex.C-2, extract of books Ex.C-3 and Ex.C-4, prescription slip Ex.C-5, ultrasound reports Ex.C-6 to Ex.C-9, certificates Ex.C-10 to Ex.C-12, prescription slip Ex.C-13, affidavit of doctor Ex.C-14, affidavit of complainant Ex.C-15. As against it, OPs tendered in evidence affidavit of Dr. Raj Dulari, C/o Raj Nursing Home and Ultrasound Centre Ex.R-1, affidavit of Dr. Anju Garg, C/o Raj Nursing Home and Ultrasound Center Ex.R-2, copies of other documents Ex.R-3 to Ex.R-17. On conclusion of evidence and arguments, the District Forum, Sangrur, dismissed the complaint of the complainant by virtue of order dated 18.11.2013. Dissatisfied with the order of the District Forum Sangrur dated 18.11.2013, the complainant now appellant has preferred this appeal against the same.  

6.      We have heard learned counsel for the parties and have also examined the record of the case.

7.      The evidence has to be adverted to on the record by us to decide the controversy in this case. Ex.C-1 is the report of the Malhhi Hospital to the effect that ultrasound report of Radha Rani as on page 3 marked by this witness, is contrast to the ultrasound report on page 7 marked by him. He further stated that report of the doctor is doubtful and the doctor doing this ultrasonogram has missed 2nd fetus present in the uterus. Ex.C-2 is  registration certificate of Dildar Singh M.D (Forensic Medicine). Ex.C-3 and Ex.C-4 are the textbook of Dr. D.C.Dutta and by Sh. Shirish N Daftary Sudip Chakravarti, Ex.C-5 is copy of the OPD Slip dated 19.05.2011, Ex.C-6 is the display of ultrasound of Raj Nursing Home and Ultrasound Center regarding examination of the Radha Rani on 10.08.2011, Ex.C-7 is the report of ultrasound given by Dr. Anju Garg, MBBS/op No.2 recorded the expected date of delivery (by LMP 6.3.11)- 13.12.11 and expected date of delivery (by ultrasound) 16.12.2011. The declaration that the complainant did not want to know the sex of the fetus has been signed by the complainant, Ex.C-8 is the ultrasound report of the Dr. Tanu Garg and report Ex.C-9 regarding twin fetus pregnancy in  33 w 3d. The birth certificate of the complainant's daughter is dated 12.01.2012, vide Ex.C-10 and birth certificate of complainant's daughter is dated 16.1.2012, vide Ex.C-11 and birth certificate of daughter of the complainant is dated 12.01.2012 at Raj Nursing Home is Ex.C-12 and affidavit of Dr. Dildar Singh Malhhi, MBBS is Ex.C-14 and affidavit of Radha Rani complainant is Ex.C-15 on the record.

8.      The OPs countered it by tendering in evidence affidavit of Raj Dulari Ex.R-1, she stated in this affidavit that she is qualified doctor having sufficient experience in this line for the last many years. She stated that complainant never contacted her nor she has any role in the ultrasound report. Report Ex.C-7 is signed by the complainant that sometimes, abnormality may not be obvious or can be missed due to various technical reasons. Artifacts may also remove real echoes from the displays or observe information and important pathology may be missed. Shadowing results when there is a marked reduction in the intensity of ultrasound deep to a strong reflector or attenuator. Shadowing causes partial or complete loss of information due to attenuation of the sound superficial structures. She denied that Dr. Anju Garg was negligent and further stated that Dr. Anju Garg is a qualified doctor holding degree of MBBS and diploma in ultrasound with experience of three years. She further stated that ultrasound is not a perfect depiction of fetus and scan results cannot be 100% accurate and conclusive. It was further stated that child born at 2.28 pm was not having a normal health. The complainant could not prove the death of the child. It is further stated in this affidavit that there is no evidence that treatment was given to complainant as per medical standard. This witness further stated in affidavit that Dr. Dildar Singh is not expert in the line of ultrasound and he was not registered under PNDT Act and he has not taken any permission for giving opinion in the line of the ultrasound. The complainant is an educated lady, who signed Ex.C-7 in English. She disclosed her LMP 06.03.2011 and hence no negligence is there  on the part of Dr. Anju Garg, who is a qualified doctor. It was further pleaded that case of the complainant does not amounts to negligence because ultrasound is not perfect depiction of fetus and scan results cannot be 100% conclusive. The affidavit of Ex.R-2 is also on the record in support of the case of the OP. She also stated that she is qualified doctor holding degree for this purpose. She further stated that complainant signed document Ex.C-7 in English and she disclosed her LMP 06.03.2011. Therefore, there is no negligence on the part of this witness. She further stated that ultrasound is not perfect depiction of fetus and scan results cannot be 100% conclusive. Ex.R-3 is letter from Dr. Raj Nursing Home to Senior Medical Officer, Civil Hospital Sunam & Ultrasound Center permitting the ultrasonography, Ex.R-4 is certificate from Institute of Ultrasound Training proving that Dr. Anju Garg successfully completed training course in Ultrasound-Obs-gynae & Abdomen held from 12th November 2007 to 15th May 2008. She conducted more than 100 ultrasound cases at the center at his supervision. Ex.R-6 is the Post Graduate Diploma in Sonography, Ex.R-7 is renewal certificate by Punjab Medical Council of Dr. Anju Jindal, Ex.R-8 is bachelor of medicine of the degree of doctor Dr. Anju Jindal awarded by Guru Nanak Dev University, Amritsar and Ex.R-9 is the Post Graduate Diploma in Maternal and Child Health awarded by Indira Gandhi National Open University, Ex.R-10 is certificate of registration on the record, Ex.R-11 is resignation of Dr. Raj Dulari, Medical Officer from Punjab Health Department on 20.05.91, Ex.R-12  is certificate of registration granted by Punjab Medical Council to Dr. Raj Dulari, Ex.R-13 is MBBS degree awarded by Punjabi University Patiala, Ex.R-14 is MD degree awarded to Dr. Raj Dulari by Punjabi University Patiala in Gynecology and Obstetrics, Ex.R-16 is certificate issued to Dr. Anju Garg and Ex.R-19 is policy terms and conditions taken by the OPs.

9.      We have to examine as to whether OPs were negligent in this case or not. The allegations against OP No.2 is that wrong ultrasound report depicting one live fetus instead of two live fetus of the complainant on 10.08.2011 was given. The allegation against OP No.1 is that she gave wrong treatment to complainant on the basis of ultrasound report, as contained in the complaint. We have to examine the evidence Ex.C-1, the certificate issued by Dr. Dildar Singh Malhhi on the record. Application for cross-examination of Dr. Dildar Singh Malhhi by the complainant was not accepted by the District Forum, as per order dated 07.08.2012. Dr. Dildar Singh Malhhi was not even appointed by District Forum as expert witness in this case. We have to examine as to whether the report of ultrasound is 100% accurate and conclusive and as such OP No.2 was negligent in giving wrong report and OP No.1 provided wrong treatment on the basis of this wrong report. Ex.C-7 is ultrasound report  and it is signed by the complainant in English. It is recorded in it that fetal anatomy may not always be visible due to technical limitations related to the foetal position, foetal movements, amniotic. Fluid volume and abdominal wall thickness. Therefore, all foetal anomalies may not necessarily be detected in every examination. This warning is clearly recorded on the ultrasound report Ex.C-7, which is duly signed by the complainant in English. It cannot be said that complainant was not aware of this warning printed on the warning report by Dr. Anju Garg. Ex.C-9 is the ultrasound report by Patiala Diagnostic Centre and Eye Clinic dated 19.12.2011 regarding twin fetus. The contention of the counsel for complainant is that OP No.2 was negligent in not detecting twin fetus, when she conducted ultrasound report Ex.C-7 on complainant on 10.08.2011 and hence OP No.1 gave wrong treatment to complainant. We find that OP No.1 and 2 are qualified doctors and they prescribed the treatment as per the medical standard only.

10.    The sole point for adjudication is if the position of the fetus was not accurately reported in the ultrasound report whether it would be medical negligence on the part of the ultrasonographer or not. The matter has been examined by the Apex Court in case titled as "Senthil Scan Centre Vs. Shanthi Sridharan & another," reported in III(2011) CPJ 54 (SC) wherein Apex Court has held that deformity not detected in ultrasound and Forums below allowed complaint on the ground of negligence in diagnosing. The Hon'ble Supreme Court held in this authority that negligence is not proved. The Apex Court has held that ultrasound is not perfect depiction of fetus and scan results cannot be 100% conclusive and hence negligence is not proved. OP No.2 was qualified doctor and she was competent to conduct the ultrasound test of complainant. There is no evidence to show any negligence on the part of OP No.2 in conducting the ultrasound of the complainant. As per dictum of the Apex Court recorded in this authority, the perfect depiction of fetus and scan results cannot be 100% conclusive. This point has also been examined by our own State Commission in case Sangrur Scan Centre and others ..Versus. Paramjit Singh and others, in FA No.1653 of 2009, Instituted on 20.11.2009, decided on 06.07.2012, wherein it has been held that the onus to prove medical negligence is onerous as it is different from proving deficiency in service, which could be presumed even from the document or facts and circumstances of a case or on the basis of probability. Charge of professional negligence on a medical person is a serious one as it affects his professional status and reputation and as such the burden of proof would be more onerous, as held by Apex Court in case titled as "Malay Kumar Ganguly  Vs. Sukumar Mukherjee (Dr) and others," reported in III(2009) CPJ 17 (SC). There is no evidence on the record that there was any abnormality in any of the child conceived by the complainant and giving birth by the complainant. Since ultrasound is not perfect, depiction of fetus and scan results cannot be 100% conclusive. Therefore, we do not find any medical negligence on the part of the OP no.1 and 2 in this case. There is no reason to differ from the findings of the District Forum holding no medical negligence on the part of OP Nos.1 and 2.

11.    In view of the above discussion, the order of the District Forum under challenge in this case in appeal dated 18.11.2013 is affirmed. Finding no merits in the appeal, the same is hereby dismissed.

12.    Arguments in this  appeal were heard on 02.07.2015 and the order was reserved. Now the order be communicated to the parties.

13.    Copies of the order be communicated to the parties as per rules.

14.    The appeal could not be decided within the statutory period due to heavy pendency of court cases.

 

                                                                          (J. S. KLAR)

                                                             PRESIDING JUDICIAL MEMBER

                       

                                                         

                                                             (HARCHARAN SINGH GURAM)

                                                                              MEMBER

 

July 7,     2015.                                                              

(ravi)