Haryana

Yamunanagar

CC/1243/2012

Tarlok Singh S/o.Labh Singh - Complainant(s)

Versus

Ramesh Computerized Clinical Laboratory. - Opp.Party(s)

Amit Bansal

29 Jun 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA NAGAR.

 

                                                                                                Complaint No. 1243 of 2012  

                                                                                                Date of institution: 03.12.2012  

                                                                                                Date of decision: 29.06.2017

 

1. Tarlok Singh, aged about 87 years son of Shri Labh Singh.
2. Gagandeep Singh, age 23 years, son of Shri Iqbal Singh both residents of House No.309-B, Sarswati Colony, Amadalpur Road, Buria Chowk, Jagadhri, Tehsil Jagadhri, District Yamuna Nagar.

 

 …Complainants.

                                    Versus

Ramesh Computerized Clinical Laboratory, 2 Shivaji Market, Opposite Nirankari Bhawan, Yamuna Nagar, District Yamuna Nagar, through its Proprietor, Doctor Ramesh Garg.

 

                                                                                          …Respondent

               

BEFORE:         SH. ASHOK KUMAR GARG…………….. PRESIDENT.

                        SH. S.C.SHARMA………………………….MEMBER.

                        SMT. VEENA RANI SHEOKAND…..…… MEMBER.

 

Present:           Shri Amit Bansal, Advocate for complainants.

                       Shri Sushil Garg, Advocate for OP

 

 

ORDER (ASHOK KUMAR GARG, PRESIDENT)

 

1.                     The present complaint has been filed under Section 12 of the Consumer Protection Act, 1986 against the respondent (hereinafter will be referred as OP).

2.                     Brief facts, as alleged in the complaint, are that in the month of November, 2012, the complainants were suffering from fever and accordingly on 17.11.2012 they along with Shri Iqbal Singh son of the complainants No.1 and father of the complainants No.2 visited the clinic of the OP doctor and requested him to examine them. Accordingly, the OP doctor took sample of the blood of both the complainants and had examined the same. The complainants had paid due amount to the OP doctor. Hence, there exists relationship of Consumer and service provider between the parties. After examination of the blood sample of both the complainants, the OP doctor had prepared his report dated 17.11.2012, in which the platelets count of the complainants No.1 has been shown 89000 and the platelets count of the complainants No.2 has been shown as 82000 which were much less than the normal platelet counts, as the normally platelets counts have to be 1.5  to 4.0  lac/cumm, which is quite apparent from both the reports of the OP doctor dated 17.11.2012. After analyzing, the outcome of the above test reports, doctor Ramesh Garg declared that the complainants were suffering from Dengue fever and there was risk to their life and they must immediately admitted themselves in PGI Chandigarh, as the disease is very much dangerous and any delay in their treatment shall cause death to the complainants. Being stunned by the advice of the OP doctor, the complainants came back to their home and discussed with Smt. Kuldeep Kaur i.e. mother of the complainants no.2 and after hearing the critical condition of two members of her family she lost her mental balance and is bed ridden till date. The complainants as well as Sh. Iqbal Singh i.e. son of complainant No.1 also suffered great mental shock. Before approaching to PGI  Chandigarh, the complainants decided to examine  themselves at local level again, by some renowned doctors  of the vicinity and visited to institute of Para Medical Sciences at Waryam Singh Hospital, Yamuna Nagar, where blood samples of both the complainants, were taken again and analyzed on the same day i.e. 17.11.2012 just after 2 hours from the report of the OP doctor and as per report, the said institute, the platelets count of the complainants No.1 was 1.80 lacs and the platelets  count of the complainants No.2  was 2 lac which are under normal category i.e. between 1.50-4.50 lacs/cumm. Further, the said institute gave report that both were not suffering from Dengue. The complainants had examined themselves with two different doctors in the same day i.e. 17.11.2012 and there was highly contractions in the test report of the OP doctor which shows Dengue to the complainants. Further, it has been further mentioned to satisfy themselves, the complainants again got analyzed their blood samples by Doctor Avinash Jain C/o Jain Clinical Lab, Yamuna Nagar and after analyzing the blood samples of both the complainants, Dr. Avinash Jain gave his report dated 18.11.2012 and declared that complainants were not suffering from dengue as the test for Dengue results in negative. Thereafter, the complainants started taking treatment and the complainants were now feeling well but due to wrong analysis/report of the OP doctor, complainants and their family members suffered great physical harassment and mental agony and even the mother of the complainants No.2 has become bed ridden which constitutes the deficiency in service and unfair trade practice on the part of the OP Doctor. Lastly prayed for directing the OPs to pay Rs.10,00,000/-  as compensation on account of mental agony and also to pay litigation expenses. Hence, this complaint.

3.                     Upon notice, OP doctor  appeared and filed its written statement taking some preliminary objections such as present complaint is wholly misconceived, groundless, frivolous, vexatious and scurrilous has been filed just to extract the money from the OP doctor; no specific scientific and justified allegations with regard  to the negligence or deficiency in service has been made by the complainants; complainants have totally failed to explain as to how the OP was negligent; the present complaint is not supported by any medical expert opinion by the complainants. As per the settled law in Martin F. D’Souza Vs. Mohd. Tshfag, it is essential to annex medical expert opinion in order to enable to the courts/consumer Forum to see whether prima facie a case of medical negligence is made out or not; the OP doctor is well qualified and experienced pathologist doctor in the subject field, having vast experience and he did thousands of medical clinical tests during his practice without any complaint, as per medical norms and medical literature, since he joined this noble profession and on merit it has been submitted that at the instance of complainants, the OP doctor after taking the blood samples of both the complainants, prepared the report in question by adopting adequate medical procedure as provided under the international medical books particularly on the above specific subjects and accordingly provide the reports correctly as per the norms containing the platelet counts as mentioned therein to the complainants. The OP doctor has only provided the reports pertaining to the platelets only, duly mentioned in the respective reports and never declared and suspected the disease- Dengue at any point of time and never suggested to got admit in PGI, Chandigarh to save their life as alleged. The OP doctor has provided the medical pathologist report and there are various methods to count the platelets or thrombicyte counts and there is necessary to count by the visual method of microscope. In 10 to 25% samples by which the OP pathologist doctor adopted the procedure which is quite applicable in this particular field. Moreover, this particular period, the OP doctor conducted about 3000 medical clinical tests of platelets counts and there is no complaint from any side except this false and baseless complaint. It has been further mentioned that alleged report (Annexure C-2) issued by Institute of Para medical sciences in question is made by the lab technician having no specific scientific experience and authority in the said respective field and as such the said report is nothing as the same has not been issued by the well qualified pathologist doctor having the same degree and experience, as such of the OP doctor. It has been further mentioned that the same lab technician observe the less platelets counts about 1.23 lacs within a short span of 36 hours since it is first report, its indicates that there is every possibility of technical error as shown in the international books upon medical literature. Not only this, even otherwise, the critical level of platelets counts is 5000 to 10,000 as shown in the medical literature. Lastly, it has been mentioned that there was no medical negligence or carelessness on the part of the OP doctor. Hence, prayed for dismissal of the complaint.

4.                     In support of his case, learned counsel for the complainants tendered into evidence short affidavit of the complainant No.2 Gagandeep as Annexure CW1/A, report of Ramesh Computerized Clinical lab dated 17.11.2012 in respect of Mr. Gagandeep Singh as Annexure C1, lab report of Institute of Para Medical Sciences dated 17.11.2012 in respect of Gagandeep Singh as Annexure C2, report of Waryam Singh hospital dated 17.11.2012 as Annexure C-3, report of Jain clinical lab dated 18.11.2012 as Annexure C4, lab report of Ramesh Computerized Clinical Lab in respect of Sardar Trilok Singh dated 17.11.2012 as Annexure C5, Lab Report of Para Medical Science institute dated 17.11.2012 as Annexure NIL and closed the evidence on behalf of complainants.

5.                     On the other hand, learned counsel for the OP tendered into evidence affidavit of Dr. Ramesh Lal Garg, MBBS MD (Pathologist) as Annexure RA, photocopy of medical literature as Annexures R-1 to R9 and closed the evidence on behalf of OP.

6.                     We have heard the learned counsel for parties and have gone through the pleadings as well as documents placed on the file very carefully and minutely.

7.                     The only grievance of the complainants is that in the month of November, 2012, they was suffering from fever and accordingly on 17.11.2012, they approached the clinical of the OP doctor who took samples of both complainants and had examined the same. The OP Doctor had prepared his report dated 17.11.2012 (Annexure C-1 and C-5) in which the platelets count of the complainants No.1 has been shown as 89000 and platelets count of the complainants no.2 has been shown as 82000 which were very less than the normal platelets counts of 1.5 of 4.0 lacs/cumm in comparison to the other reports of the same date issued by the institute of Para Medical Sciences (Annexure C2 and C5/A) in respect of both the complainants as in the reports issued by institute of Para Medical Sciences platelets counts has been shown as 2 lacs in respect to Gagandeep Singh and platelets count 1.80 lacs has been shown in regard to complainants No.1 Trilok Singh. Even as per third report issued by Jain Clinical lab on the next day i.e. 18.11.2012 in regard to Gagandeep Singh, the platelets count has been shown as 2.46 lacs meaning thereby that the reports issued by the institute of Para Medical Sciences and Jain clinical lab were showing normal platelets counts whereas the reports prepared by the OP doctor were showing less platelets count due to which the complainants as well as their family members has suffered mental harassment as well as financial loss which constitute the deficiency in service or unfair trade practice on the part of the OP doctor.

8.                     On the other hand, learned counsel for the OP argued at length that there is no medical negligence or carelessness on the part of the OP doctor. Learned counsel for OP doctor draw our attention towards the reports issued by institute of Para Medical Sciences (Annexure C2/C5/A) and argued these reports have been issued by the technician only which cannot be relied upon and have no weightage in the eyes of medical science. Learned counsel for the OPs further argued that he never advised the complainants to get admission in the PGI Chandigarh nor he declared any disease of dengue as alleged in the complaint by the complainants. Learned counsel for the OPs further argued that the complainant has totally failed to file any medical expert opinion and as per law in “Martin F. D’Souza Vs. Mohd. Tshfag, it is essential to annex medical expert opinion in order to enable the courts/consumer Forum to see whether prima facie a case of medical negligence is made out or not. Learned counsel for the OP further argued that the OP doctor is well qualified and has experience of Pathologist doctor in the subject field, having vast experience and never deviate from the standard medical norms etc. prescribed in the medical books particularly on the above specific subject and accordingly provide the report correctly as per norms containing the platelets count as mentioned therein. It has been further argued that there were various methods to count the platelets or thrombicyte counts and there is necessary to count by the visually methods of microscope in 10 to 25% samples by which the OP pathologist doctor adopted the procedure is quite applicable in this particular field. Lastly learned counsel for the OP draw out attention towards the medical literature (Annexure R-1 to R-9)  and argued that there are numerous technical errors reported in the medical literature, during the particular tests as the lab technicians observe the less platelets count 1.23 within a short span of 36 hours since its first report itself indicates that there is every possibility of technical error as shown in the international books upon medical literature. Not only this, even otherwise, the critical level of platelets count is 5000 to 10000 as shown in the medical literature and lastly prayed for dismissal of the complaint and referred the case law titled as “Sanjeev Manktala (Dr. ) Vs. Ajit Sood (Dr.) & Ors. 2012 CPJ, 636 (NC).

9.                     After hearing both the parties and going through the case law, we are of the considered view that there is deficiency in service or unfair trade practice on the part of the OP doctor as from the perusal of contents of the report (Annexure C-1), in respect of patient/ complainant No.2 Shri Gagandeep it is duly evident that the OP doctor has reported the platelets count as 82000 in his report dated 17.11.2012, whereas the platelets count has been reported as 2.00 lacs in Second report dated 17.11.2012 (Annexure C-2) i.e. same day issued by the Institute of Para Medical Sciences, Waryam Singh Hospital, Yamuna Nagar  and further in the third report (Annexure C-4) the same has been reported as 2.46 lacs in the report issued by Jain Clinical Lab on 18.11.2012 i.e. on next day of the alleged report issued by OP doctor dated 17.11.2012 (Annexure C-1).

            Similarly, in the case of first complainant Tarlok Singh, the OP doctor has reported the platelets count as 89000 in his report dated 17.11.2012 (Annexure C-5) whereas the platelets count has been reported as 1.80 lacs in the report issued in the Institute of Para Medical Sciences, Waryam Singh Hospital, Yamuna Nagar (Annexure C-5/A) and further the  platelets count has been shown as 1,60,000 in the report on 19.11.2012 (Annexure C-5/B) issued by Institute of Para Medical Sciences, Waryam Singh Hospital, Yamuna Nagar, So, from the above noted facts, it is clear that in the report (Annexure C-1) in respect of patient/complainant Mr. Gagandeep Singh and in report (Annexure C-5) in respect of complainant No.1 Trilok Singh, the platelets count has been shown as 82000 and 89000 respectively instead of platelets count of 2 lac and 1.80 lacs as per report of Institute of Para Medical Sciences, Waryam Singh Hospital, Yamuna Nagar (Annexure C-2 and C-5/A), which are very less. Further, from the third report issued by Jain Clinical lab wherein the platelets count has been shown as 2.46 lac in respect of Mr.Gagandeep, the platelets count shown by the OP doctor are much less. Although the OP doctor has referred the medical literature and has tried his best to show that there was no negligence or carelessness on his part but this Forum is not convinced with the argument advanced by the counsel for the OPs.

            Instead of accepting his fault and negligence, the opposite party wants to say that the report issued by him is correct and other reports are incorrect. The arguments advanced by learned counsel for OP that report issued by Institute of Para Medical Sciences, Waryam Singh Hospital, Yamuna Nagar (Annexure C-2 and Annexure C-5) without the signature of lab technician is not tenable as it is not the case of the OP doctor that lab technician was not qualified. Moreover, we have also perused report issued by the OP doctor (Annexure C-1 and C-5), these reports bear only short initials which may be of OP doctor or any technician as these signatures do not tally with the signatures put on the reply as well as power of attorney executed in favour of advocate. Even in the presence of third report issued by Jain Clinical Lab, the argument advanced by counsel for the OP is not tenable as this reports i.e. Jain Clinical Lab (Annexure C-4) has been issued by doctor Advinash Jain, MD. So the arguments advanced by the counsel for the OP that the other reports have been issued by the lab technician is not tenable.

10.                   Learned counsel for the OP doctor referred a decision of Hon’ble Apex Court in case of Martin F. D’Souza Vs. Mohd. Tshfag, 2009, CLJ 193, SC and wherein it has been held that medical practitioner are not liable for negligence simply because things went wrong from mischance/misadventure through error of judgment. In the instant case, there is clear cut negligence on the part of the OP in issuing a wrong and incorrect reports and instead of accepting his negligence he has acted in a most unfair manner. There is no question of referring the matter to specialist in the concerned field, because in the other reports issued by Para Medical Sciences, Waryam Singh Hospital, Yamuna Nagar  and Jain clinical lab, there has been clearly mentioned that the platelets count were much higher from the platelets reported by the OP doctor. In case titled as “Bombay and Medical Research Center Vs. Sharifabi Ismail Syed and others; 1(2008) CPJ 432 (NC) the presence of tumor was wrongly indicated in MRI Flim and on operation, no tumour was found. Another MRI was conducted and second operation was performed on the basis of that MRI. It was held by the Hon’ble National Commission that the consulting Radiologist who signed the report was responsible for misreading, non-reading/looking at MRI film correctly. Similarly, in the case of Nehra (Dr. ) Vs. Shalini Vij and others, IV(2008) CPJ 230 (NC), there was wrong ultrasoung report about abscess left lobe, which was contradicted by another Radiologist in another report within 24 hours. It was held by the Hon’ble National Commission  that the negligence on the part of the petitioner is writ large and the Radiologist was held liable for giving wrong report and was made liable to pay compensation. The same view has been held in another case law titled as Vipin and others Vs. Dr. Ravindra Goyal and others 2014(1) CLT 431 wherein it has been held that:-

 

“Consumer Protection Act, 1986, Section 2(1)(g)- Medical negligence- Ultrasound report- After ultrashound, the complainants were verbally informed that the baby in the womb of the complainant No.2 is not alive and has died. Thereafter, the complainant No.2 got her ultrasound done from certain other laboratories including the government hospital, who all have stated in their report that the foetal heart is normal and that foetus with faint cardiac activity is seen in the foetus—Held—One can imagine the trauma which a patient, especially a lady, and that too a pregnant lady, would have, if she is told that the baby in her womb is not alive and has died—The Pathologists need to be very careful while giving findings/results, which could have some element of doubt or error, to go in for a second check—In the case before us, there was firstly no such advice, which is clear from the record and secondly, the result was incorrect—We are in no doubt that when a patient who goes to a physician or diagnostic or radiologist, does not expect a wrong diagnosis leading to further mental agony and tension—It is clearly established that the opposite party no.1 has committed negligence in the performance of his duties and has issued a wrong and incorrect  ultrasound report (Para No.7,8 and 14).”

11.                   From the discussion made above, it is clearly established that OP doctor has committed negligence in performance of his duty and has issued a wrong and incorrect report in respect of both the complainants i.e. Trilok Singh and Gagandeep Singh which constitute the deficiency in service or unfair trade practice on the part of the OP doctor.

12.                   Now coming to the compensation aspect of the case. The complainants have claimed Rs.10,00,000/- as compensation with interest, however, complainants have not filed any evidence to show that they are entitled to compensation to such an extent. Even the complainants have not placed on file any OPD Slip or any treatment record or any bill of expenses of any hospital for taking the treatment of Dengue or whatsoever as alleged in the complaint. The complainants have placed on file only lab reports issued by the OP doctor as well as report of Para Medical Science and Jain Clinical, except these one, nothing has been placed on file to prove any amount spent by the complainants. Even, the complainants did not bother to place on file any receipt of charges for conducting the tests by the said laboratories. So looking into the negligence made by the opposite party in issuing the wrong and incorrect reports and mental agony undergone by the complainants for getting the tests conducted twicely again, we are of the considered view that the complainants are entitled to lump sum compensation of Rs.10000/- on account of mental agony, harassment etc.

13.                   Resultantly, in the circumstances noted above and after going through the case law titled above, we partly allow the complaint of the complainants and direct the OP doctor to pay Rs.10,000/- as compensation on account of mental agony, harassment and expenses etc. The OP doctor is also directed to pay Rs.2200/- as litigation expenses. Order of this Forum be complied within a period of 30 days, failing which complainants are also entitled to get the interest @ 7% per annum from the date of filing of the present complaint till its realization. Copy of this order be supplied to the parties as per rules. File be cosigned to the record room after due compliance.

 

Pronounced in open court.                                         

Dated: 29.06.2017.                                                      (ASHOK KUMAR GARG),

                                                                                    PRESIDENT, DCDRF

                                                                                    YAMUNA NAGAR AT JAGADHRI

                       

 

                        (VEENA RANI SHEOKAND)           (S.C. SHARMA)          

                        MEMBER                                            MEMBER