Beant Kaur, complainant, has filed this complaint against Raj Nursing Home and Others (opposite parties) under Section 12 of the Consumer Protection Act, 1986 (here-in-after referred to as 'Act').
Briefly stated, the case of the complainant is that she and her husband were planning to have another child. The complainant alongwith her husband approached opposite party No. 1 for medical check up of complainant in order to avoid any type of complication in the pregnancy. The opposite party No. 1 prescribed some medicines to her on 12-2-2015 and advised her to follow up check up on 15-2-2015 and thereafter on 21-3-2015. On 21-3-2015 complainant alongwith her husband visited the hospital of opposite party No. 1 and opposite party No. 1 asked the complainant for ultrasound. As per advise of Dr. Babita, complainant undergone ultra sound scanning from the hospital of opposite party No. 1 on 21-3-2015. After conducting ultrasound, Dr. Babita Bansal frightened the complainant and her husband by proclaiming that there is Cervical Fibroid of 2.15 x 2.5 cm in size. She further frightened the complainant and her husband that the same is required to be removed immediately by conducting an operation upon the complainant, otherwise it can be turned/developed to any fatal/chronic disease of cancer etc. After hearing all these words, the complainant and her husband became totally confuse, puzzled and perplexed having been frightened by Dr. Babita Bansal. When the complainant requested that the same may be got confirmed by conducting the CT Scan or some other test from some other Laboratory, Dr. Babita Bansal started proclaiming that the result of ultrasound shown in the report by her is perfectly okay. It would be same from any other laboratory. As such, the complainant and her husband should not take any chance by delaying the matter and immediately admit in the hospital for operation.
It is alleged that with the great persuasion of the complainant and her husband, the opposite party No. 1 had prescribed MRI of Pelvis and some other clinical tests of the complainant to confirm the alleged problem of Cervical Fibroid. In this way, the complainant and her husband succeeded in absconding from the hospital of opposite party No. 1 on the pretext of undergoing MRI. After undergoing MRI of Pelvis from Adesh Diagnostics, Bathinda on 21-3-2015 itself, the complainant and her husband approached Dr. S P Kaur Gill of Akhtiar Gill Hospital, Bathinda. She disclosed to the complainant and her husband that there is no such problem pointed out in the MRI. The complainant is perfectly okay. She is not required to undergo any alleged operation. Only thereafter, the complainant and her husband relaxed.
It is alleged that opposite party No. 1 gave false report to the complainant on 21-3-2015 showing the result of Cervical Fibroid in the Uterus of the complainant and further frightened her about some chronic disease as a result of which complainant and her husband suffered from great mental tension, agony, botheration, harassment, humiliation and stress. Dr. Babita Bansal is liable for all this.
It is alleged that act on the part of opposite party No. 1 could have fatal to the life of complainant who became very perplexed after hearing the words of opposite party No. 1. Had the complainant been undergone the alleged operation from the hospital of opposite party No. 1 without undergoing MRI, the same would have also caused huge loss of health of the complainant besides financial loss.
It is further stated that complainant later also came to know that Dr. Babita Bansal is not a Radiologist. As such, she was not competent to conduct Ultrasound of the complainant.
On this backdrop of facts, the complainant has alleged deficiency in service and unfair trade practice on the part of the opposite parties. She has claimed Rs. 2.00 Lacs as compensation from opposite party No. 1 on account of mental tension, agony and botheration etc., She has also claimed Rs. 22,000/- as cost of said litigation. Hence this complaint.
Upon notice, the opposite parties appeared through their respective counsel and filed separate written versions. The opposite party No. 1 in its written version raised legal objections that complaint having been filed by the complainant is not maintainable. It does not disclose any alleged negligence and/or deficiency in service on the part of opposite party No. 1. It is based on distortion, misleading and biased version of facts and circumstances. That the complainant has got no locus standi to file the present complaint against opposite party No. 1 because the complainant has never been advised any alleged surgery nor any such alleged surgery has been done by opposite party No. 1.
As per opposite party No. 1 the complainant Beant Kaur had visited her as an OPD patient on 21-2-2015 for seeking opinion regarding decreased flow during menstruation. She was examined by opposite party No. 1. When the complainant disclosed that her L.M.P. (last menstrual period) was on 15-02-2015, she was advised to go in for clinical investigation. She was told by opposite party No. 1 that as per usual practice of Lal Path Lab the test results shall be provided by them after sometimes, meanwhile opposite party No. 1 prescribed three tablets which will be taken by the complainant for a fortnight. Thereafter she was advised to revisit opposite party No. 1 when the reports comes, for follow up . The complainant alongwith her husband again visited opposite party No. 1 on 21-3-2015 and expressed their desire to have conception of a child. The opposite party No. 1 asked the complainant to get the semen of her husband analysed and also to get an ultrasound done of herself for proper diagnosis. The ultrasound was done by opposite party no. 1 herself at her clinic on 21-3-2015. The report alongwith pictures of the scan were provided to the complainant then and there. It was advised to get MRI of pelvic organ done as the ultrasound showed a small fibroid in it. It is further asserted that complainant and her husband were never frightened by opposite party No. 1. Rather they were explained that there is nothing to worry on that account and no surgery was ever advised. The only treatment was that the complainant was explained that if she had sex with her husband, her best chances for conception are from the 10th day of her menstrual cycle to 20th day which was also written on the prescription slip of the complainant and that to twice, the second time being the dates corresponding to these days i.e. 21st to 31st. The complainant has cooked up a false story to make ground for filing this false and vexatious complaint and unnecessarily harass the opposite party No. 1. That the complainant has not approached this Forum with clean hands. She has intentionally suppressed all the true and material facts from the notice of this Forum, She has mis-stated in the complaint with a view to prejudice the mind of Forum. She is not entitled to any relief.
It is further pleaded that complainant has not shown the MRI film/CD/report to any other expert gynecologist nor she has sought any expert opinion thereof. The report given by opposite party No. 1 is correct according to the pictures available. It is also pleaded that Dr. (Mrs.) S P Kaur Gill is not a specialist in gynecology and the opposite party No. 1 is a Postgraduate DNB (Gyne. and Obst.) i.e. a Specialist in this field. The alleged MRI film and CD of the MRI have not been placed on file for the reasons best known to the complainant. That intricate questions of law and facts are involved in the complaint which require examination and cross examination of the witness. The matter can only be resolved through the process of civil court. That the complaint is false, frivolous and vexatious. The complaint is liable to be dismissed with special costs under Section 26 of the 'Act'.
On merits, the opposite party No. 1 controverted all the material averments and reiterated its stand as taken in preliminary objections and detailed above. Further it is admitted that ultrasound of the complainant was done by her on 21-2-2015. It is further mentioned that it showed features of a small cervical fibroid (i.e. a non cancerous tumor occupying the uterine cervix) of the size 2.5 cm X 2.15 cm. It is reiterated that complainant was advised to get MRI of pelvic organ done to confirm the finding of the cervical fibroid. It is denied that complainant visited opposite party No. 1 on 12-2-2015. As per opposite party No.1, the complainant visited her for the first time on 21-2-2015. The opposite party No. 1 has further disclosed that after doing MBBS from Govt. Medical College, Bikaner in the year 2002, she has done Post graduation in the year 2010 from Jaipur. She has also served NRHM in Sardullgarh from the year 2010 to 2012 and as PCMS-1 at Civil hospital, Sardullgarh and Raman Mandi from 2012 to 2014. After that, she has started her private practice at Raj Nursing Home, Talwandi Sabo. During all these years, she has done large number of scans and there has never been any mis-reading or wrong diagnosis. It is also denied that complainant was forced to get admitted in the hospital immediately. It is further mentioned that from the perusal of the prescription slips produced on file by the complainant, it is evident that opposite party No. 1 advised the complainant :
(a) A Non surgical method of treatment (which involves no operation).
(b) MRI scan for further confirmation and to consult thereafter.
It is also mentioned that opinion of one doctor can differ from another. Since the complainant has intentionally withheld to submit the MRI scan films and the compact disc (CD) of the MRI, the following points are note worthy :
a) If the MRI report does not mention any Cervical fibroid , It may be because any diagnostic study may miss certain lessions (Medically called false negative study).
b) It may also be due to fact that the cervical fibroid even through present on MRI scan film, may get overlooked due to its relatively smaller size and its location.
c) It is further submitted that the only way of ascertaining whether the complainant does or does not have cervical fibroid is by co relating all the following these modalities :
- Expert gynecological examination (including vaginal examination.
- Review TVS ultrasound by an expert.
- Closure scrutiny of MRI scans film and especially the compact disc (CD of the MRI).
After controverting all other averments, the opposite party No. 1 prayed for dismissal of complaint.
The opposite party No. 2 in its written version also raised legal objections that there is no deficiency in service on the part of opposite party No. 1 in providing treatment to the complainant. That Professional Indemnity Insurance Policy effective from 27-12-2014 to 26-12-2015 was issued to Dr. Babita Aggarwal with address of practice as doctor at National Institute of Medical Sciences, Jaipur. However, as per record and as per prescription slip submitted by opposite party No. 1, she is running hospital under the name and style Raj Nursing Hone, Opposite Civil Hospital, Talwandi Sabo and the name of doctor has been disclosed as Dr. Babita Bansal with PMC Registration No. 35329. Neither the name of insured doctor nor the registration number with concerned medical council tallies with the insurance policy issued by opposite party No. 2. So there is no privity of contract between opposite party No. 1 and opposite party No. 2 to indemnify opposite party No. 1 for any claim passed against her. That contract of Professional Indemnity Insurance (Doctor) is to indemnify the insured regarding legal liability/award/order which is passed against the insured and which has been satisfied by the insured. Since no award/liability/order/payment has been made against opposite party No. 1 and in favour of complainant and no compensation has been awarded to the complainant so far, the insurance company cannot be impleaded as party at this stage. That the insured has violated the terms and conditions of the policy under which the policy was issued. So even if any negligence of opposite party No. 1 is proved, even then opposite party No. 2 is not liable to pay any compensation. That even if this Forum comes to the conclusion that opposite party No. 1 is liable in any manner, then liability of opposite party No. 1 to indemnify the insured for any one year is Rs. 1.00 Lac and for any one accident Rs. 1.00 Lac subject to the condition that Dr. Babita Bansal and Dr. Babita Aggarwal is one and the same person. That Dr. Babita Aggarwal is a qualified Obst. & Gynaecologist doctor having vast experience. No allegation has been levelled against opposite party No. 1 that she was not a qualified doctor to treat the ailment of the complainant. That no expert evidence has been placed on file which could prove that opposite party No. 1 was negligent in any manner in providing treatment to the complainant nor any report was sought by this Forum from any expert doctor of Civil Hospital, Bathinda, before issuing summons. That complainant has not come with clean hands. That neither any claim has been lodged against opposite party No. 2 nor any deficiency in service on its part has been alleged, as such complaint is not maintainable. That intricate question of law and facts are involved in the present complaint, which require voluminous evidence, as such the present complaint cannot be disposed off in summary nature and should be decided only by the Civil Court. That the amount of compensation claimed is highly excessive and exorbitant and that the present complaint is false, frivolous and vexatious.
On merits, the opposite party No. 2 has controverted all other averments and prayed for dismissal of complaint.
Parties were afforded opportunity to produce evidence. In support of her claim, complainant has tendered into evidence her affidavit dated 21-4-2015 (Ex. C-1), photocopy of prescription slip (Ex. C-2), photocopy of lab report (Ex. C-3), photocopy of scan report (Ex. C-4), photocopy of MRI report (Ex. C-5), photocopy of payment receipt (Ex. C-6), photocopy of legal notice (Ex. C-7), photocopy of postal receipt (Ex. C-8), and photocopy of prescription (Ex. C-9).
In order to rebut this evidence, opposite party No. 1 has tendered into evidence her affidavit dated 10-09-2015 (Ex. OP-1/1), photocopy of Form B (Ex. OP-1/2), photocopies of certificates (Ex. OP-1/3 to Ex. OP-1/6), photocopy of scan report (Ex. OP-1/7), photocopy of payment receipts (Ex. OP-1/8 & Ex. OP-1/9) and photocopies of policy schedule (Ex OP-1/10 and Ex. OP-1/11).
The opposite party No. 2 has tendered into evidence affidavit dated 6-10-2015 of Ashwani Kumar Kukar (Ex. OP-2/1), photocopy of policy schedule (Ex. OP-2/2) and photocopy of terms and conditions (Ex. OP-2/3).
Learned counsel for the complainant and opposite party No. 1 have also submitted written submissions.
We have heard learned counsel for the parties and gone through the record and written submissions of the complainant and opposite party No.1.
Learned counsel for complainant has reiterated his stand as taken in the complaint and as detailed above. It is further submitted by learned counsel for the complainant that it is not disputed that complainant took treatment from opposite party No. 1 on 22-2-2015 and then on 21-3-2015. The opposite party No. 1 asked for CT scan and she herself conducted CT scan of the complainant on 21-3-2015. The report provided by the complainant is brought on record as Ex. C-4. This report shows Cervical fibroid of 2.15 x 2.5 cm in size. In order to get the report confirmed, the complainant got conducted MRI on that very day from Adesh Diagnostics, Bathinda. The report Ex. C-5 is on the file. As per this report there was 'no definite mass lesion noted in uterus or cervix'. Therefore, the evidence (Ex. C-5) proves that CT scan of opposite party No. 1 was patently incorrect. It is further submitted that complainant has also deposed on oath that opposite party No. 1 frightened the her for surgery. When the report of opposite party No. 1 is patently illegal, there was no need for the surgery. It was certainly to cause physical loss to the complainant. The opposite party No. 1 cannot exonerate from her negligence only for the reason that no surgery was got conducted by the complainant. The negligence of the opposite party No. 1 stand proved from the incorrect report. It is further submitted by learned counsel for the complainant that there is nothing on record to prove that opposite party No. 1 was a Radiologist. Therefore, she was not competent to perform CT Scan. This fact further proves negligence of the opposite party No. 1. The case of the complainant stands proved from the documentary evidence. The complainant is entitled to compensation as prayed for.
To support these submissions, learned counsel for the complainant has cited (i) 2013(2) RCR (Civil) 657 case titled Bhanwar Kanwar Vs R K Gupta and another (ii) 2009 (1) CPJ 243 (NC) case titled Senthil Scan Centre Vs. Shanthi Shridharan (iii) 2007(IV) CPJ 157 (NC) case titled Chandigarh Clinical Laboratory Vs. Jagjeet Kaur (iv) 2011 (III) 383 (NC) case titled Anita (Dr) Vs.Rajashree.
On the other hand, learned counsel for opposite party No. 1 submitted that complainant has not approached this Forum with clean hand. She has not brought true facts before this Forum. The complainant has to prove her case by affirmative evidence. There is no evidence to prove any negligence on the part of opposite party No. 1. The complainant has pleaded that she took treatment from 12-02-2015 and she was advised for follow-up on 15-2-2015. It is also the case of the complainant that she was planning to have another child and for that purpose, she started treatment from opposite party No. 1. The only document to prove the case of the complainant is prescription slip Ex. C-2. This document proves that complainant started treatment from 22-2-2015. The treatment was for decreased flow during menses. She was given treatment for that purpose only. Thereafter on 21-3-2015, complainant again approached opposite party No. 1 and wanted conception. This fact is also recorded in the prescription slip. The complainant was advised for detailed treatment for the purpose of conception. The complainant was also advised for CT Scan on 21-3-2015. Admittedly, the complainant got conducted CT Scan vide report Ex. C-4 and as per this report Cervical Fibroid of 2.15 x 2.5 cm in size was noticed but other averments of the complainant are categorical incorrect. This Forum can take notice of the fact that CT scan is not a error free technique and MRI is better technique. Only due to this reason, the complainant was also advised for MRI of Pelvic Organ. This fact is recorded in the prescription slip Ex. C-2. In case the complainant was to be pressurised for undergoing surgery, then opposite party No. 1 was not to prescribe further treatment for the complainant. This fact itself shows that opposite party No. 1 has never recommended nor pressurized the complainant for any surgery. Rather she was advised for MRI of Pelvic Organ and as per complainant she got conducted MRI on 21-3-2015 and no definite mass lesion noted in uterus or cervix. The complainant has not approached the opposite party No. 1 thereafter. The opposite party No. 1 is well qualified being MBBS and as well as Post Graduate. The certificates prove this fact. There is no negligence on the part of opposite party No. 1. The opposite party No. 1 has performed her duty as per well established procedure. In order to avoid any risk, the opposite party No. 1 has rather advised for MRI to the complainant. Therefore, the case of the complainant is not proved and it be dismissed.
To support his submissions, learned counsel for opposite party No. 1 has cited (i) 2007(2) CPJ 257 case titled Dr. Sanjeev Sodhi and others Vs. Darshan Kaur (ii) 2012 (4) CPJ 610 case titled Tilat Chaudhary and another Vs. All India Institute of Medical Sciences and another (iii) 2010(3) SCC 480 case titled Kusum Sharma Vs. Batra Hospital & Medical Research Centre (SC) (iv) 2009 (2) RCR (Criminal) 64 case titled Martin F. D'Souza Vs. Moh. Ishfaq.
We have carefully gone through the record, case law cited by learned counsel for the parties and have considered the rival contentions.
The undisputed facts are that complainant approached opposite party No. 1 for treatment. Of course as per complainant, she approached opposite party No. 1 for the first time on 12-2-2015 and as per opposite party No. 1, the complainant approached her for treatment on 21-2-2015. The treatment was started from 15-2-2015 or 21-2-2015 does not make any difference because the controversy is regarding treatment dated 21-3-2015. It is not disputed that complainant again approached opposite party No. 1 for treatment on 21-3-2015 and opposite party No. 1 asked for CT scan of the complainant. The CT Scan was conducted by opposite party No. 1 herself. The report of CT Scan conducted by opposite party No. 1 is brought on file as Ex. C-4. As per this report, there was 'Cervical fibroid of 2.15 x 2.5 cm in size'. It is not disputed that on that very day i.e. 21-3-2015, the complainant got conducted MRI from Adesh Diagnostics vide report Ex. C-5. As per report, there was 'no definite mass lesion noted in uterus or cervix'. Therefore, it is proved that report of the CT Scan conducted by opposite party No. 1 was not confirmed by MRI report Ex. C-5. Rather CT Scan report is contradictory to MRI report. The point for determination is whether any medical negligence is proved on the basis of these reports Ex. C-4 & Ex. C-5.
Before coming to the controversy on merits in this case, a brief reference of the case law relied upon by learned counsel for the complainant will be relevant.
(i) In the case of Bhanwar Kanwar Vs. B K Gupta and another (supra) – Respondent a quack was practising Allopathic medicines as a Ayurvedic medicines and the condition of child became deteriorated but it is not the case of the complainant that opposite party No. 1 was not qualified doctor or was a quack.
(ii) In the case of Senthil Scan Centre Vs.Shanthi Shridharan (supra) – Appellant is a scan centre. He conducted CT scan of Shanthi Shridharan (complainant) three times on different dates and in every time, the appellant gave report regarding well being of the baby child but ultimately baby child was found suffering from deformity called Phocomelia. In this case, the opposite party No. 1 has conducted CT Scan once. Therefore, facts of the case in hand are also clearly distinguishable from this case.
(iii) In the case of Chandigarh Clinical Laboratory Vs. Jagjeet Kaur (supra), The opposite party has given wrong blood test report of the complainant by stating blood group AB (+) whereas it was found to be AB (-).
(iv) Similarly in the case of Anita (Dr) Vs. Rajshree (supra), patient was given wrong advice of appendicitis which requires surgery.
Therefore all the cited cases are having different facts from the facts of the case in hand.
In the case of Chandigarh Clinical Laboratory Vs. Jagjeet Kaur (Supra), relied upon by the learned counsel for the complainant, Hon'ble National Commission, extracted 'Relevant rule of “Halsbury's Laws of England -Vol. 26(3rd Edition) Pages 17-18 which reads as under :-
“22. Negligence : duties owned to the patient. A person who holds himself oat as ready to give medical (a) 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 (b) A breach of any of these duties will support an action for negligence by the patient.”
In the light of aforesaid discussions, it is to be seen whether negligence on the part of opposite party No. 1 is established as alleged by the complainant. The first point is regarding possessing of skill and knowledge for the purpose of treatment. The complainant has not challanged the skill and knowledge of opposite party No. 1 and opposite party No. 1 has also placed on record certificates Ex. OP-1/3 to Ex. OP-1/6 to prove her skill and knowledge in the field. The opposite party No. 1 is also required to owe certain duties i.e. a duty of care in deciding what treatment to give and a duty of care in her administration of that treatment. Admittedly in this case, the opposite party No. 1 has not conducted any surgery of the complainant. She has rather advised for MRI which is certainly a better technique. Therefore, the negligence as defined above, is also not proved on the part of opposite party No. 1.
It is also matter of knowledge that test of CT Scan cannot be termed as 100% error free and MRI is certainly a better technique. The opposite party No. 1 has adopted right approach to advise the complainant for MRI after conducting CT Scan.
Of course the complainant has alleged that with great persuasion of complainant and her husband, the opposite party No. 1 had prescribed MRI of Pelvis and some other clinical tests of the complainant to confirm the problem of Cervical Fibroid. Admittedly documentary evidence has to prevail upon the oral evidence. The opposite party No. 1 advised MRI on the prescription slip itself. The opposite party No. 1 has also detailed the treatment which was to be followed by the complainant after 21-3-2015. In case the opposite party No. 1 was sure for surgery of the complainant after CT Scan then she was not expected to prescribe further treatment also.
In view of what has been discussed above, the complainant has failed to prove any negligence on the part of opposite party No.1. Hence, this complaint fails and is hereby dismissed leaving the parties to bear their own costs.
The complaint could not be decided within the statutory period due to heavy pendency of cases.
Copy of order be sent to the parties concerned free of cost and file be consigned to the record.
Announced :
22-12-2015 (M.P.Singh Pahwa )
President
(Jarnail Singh) (Sukhwinder Kaur)
Member Member
