For the Appellant: Mr. K.K. Mahanta, Sr.Adv, Ms. P. Baruah Bordoloi, Adv
For the Respondent No. 1:Mr. D. Baruah, Adv, Ms. B. Das, Adv
For the Respondent No. 2:Mr. S. Sarma, Adv
For the Respondent No. 3: None appeared
For the Respondent No. 4: None appeared
Date of Hearing: 24-09-2019
Date of Judgment: 24-10-2019
J U D G M E N T
BY DR. (MRS.) JUSTICE INDIRA SHAH, PRESIDENT,
This is an appeal against the judgment and order dated 10-06-2016 passed by the District Consumer Disputes Redressal Forum, Golaghat, in Consumer Protection Case No. 10 of 2013, wherein the complaint filed by the respondent No. 1/complainant was allowed holding that there was deficiency of service on the part of the appellant.
2. The case of the complainant as set out in the complaint in brief is that the complainant having abdominal pain consulted Dr. Rabin Tamuli (opposite party No. 4), who advised blood test, urine test and ultrasound examination of the whole abdomen. After laboratory test of his blood and urine, the complainant approached the appellant for ultrasound examination. Ultrasound examination of the whole abdomen was done and the appellant diagnosed the disease with impression ‘ Contracted Gall Bladder with multiple Cholelethiasis’ and verbally advised the complainant to a surgical operation of his Gall Bladder. The complainant then consulted the respondent No. 3 who advised that in view of ultrasound report, the complainant had to get hospitalized and after some more tests he was advised surgery to his Gall Bladder. On 10-08-2012, surgical operation of the Gall Bladder was performed by respondent No. 3 and while carrying out the operation, the respondent No. 3 found that the complainant’s Gall Bladder was congenitally absent and there was no ‘contracted gall bladder with multiple cholelethiasis’ as diagnosed by the appellant. The complainant claimed compensation of Rs. 15.70,000/- on account of deficiency of service on the part of the respondents/opposite parties.
3. The opposite parties including the appellant herein contested the complaint and denied deficiency of service as alleged by the complainant. Both the parties adduced evidence to substantiate their plea. The learned District Forum vide the impugned judgment held that there was deficiency of service on the part of the appellant (opposite party No. 1) for which the complainant is entitled to compensation of Rs. 3,25,000/- payable by the appellant. The appellant was directed to pay the compensation within 30 days with effect from the date of judgment failing which it shall carry interest @ 9% per annum.
4. The impugned judgment and order of the District Forum has been challenged on three counts;-
(1) The District Forum’s finding that the appellant was negligent, is erroneous.
(2) The District Forum failed to appreciate that an error of judgment in diagnosis does not amount to deficiency of service.
(3) The District Forum failed to consider that in the ultrasound report it was categorically mentioned that ultra sonography diagnosis alone is not confirmatory.
5. In the cited case of Senthil Scan Centre Vs Shanthi Sridharan and Anr. reported in (2010) 15 SCC 193, the respondent had made a claim for payment of compensation against the appellant Scan Centre on account of alleged deficiency in service as the Centre was not in a position to accurately detect the limb reduction deformity of a child that as in the womb of the claimant a the relevant point of time. The respondent/complainant alleged that the deformity in question could have sighted by the doctor conducting the ultrasound but was not so detected on account of negligence on his part. The Apex Court relying on the case of Vinitha Ashok Vs Lakshmi Hospital (2001) 8 SCC 731, State of Punjab Vs Shiv Ram (2005) 7 SCC 1, Bolam vs Frinn Hospital Management Committee (1957) 1 WLR 582 and Martin F. D’Souza v Mohd. Ishfaq reported in (2009) 3 SCC 1 held in para 8 of the judgment as under;-
“Whenever a complaint is received against a doctor or hospital by the Consumer Fora (whether District, State or National) or by the Criminal Court then before issuing notice to the doctor or hospital against whom the complaint was made the Consumer Forum or the Criminal Court should first refer the matter to a competent doctor or committee of doctors, specialized in the field relating to which the medical negligence is attributed, and only after that doctor or committee reports that there is a prima facie case of medical negligence should notice be then issued to the doctor/hospital concerned. This is necessary to avoid harassment to doctors who may not be ultimately found to be negligent.”
6. In the case of Dr. (Mrs) Mamta W/o Ashok Mukhi v Mrs. Ratnamala W/o Mohan Khade and Ors, State Commission , Maharashtra in Appeal No. A/02/425 observed as follows;-
“10. It is not the case of the original complainant/respondent No. 1 herein that the appellant was not duly qualified for doing sonography investigation and issuing the report. The Hon’ble Supreme Court in the aforesaid case of Senthi Scan Centre & Anr. III (2011) CPJ 54 (SC) has clearly laid down that ultrasound is not a perfect depiction of foetus and scan result can not be 100% conclusive. Therefore, in the instant case if it is accepted that the original complainant/respondent No. 1 delivered only one child, though the appellant issued a report on sonography investigation that she is carrying twins in her womb, that can not be termed as medical negligence on her part. The error of judgment in the present case can not be termed as medical negligence on the part of the appellant.”
7. In the case of Jacob Mathew Vs State of Punjab and Another reported in (2005)6 SCC, it was held that the only assurance which a professional can give or can be understood to have given by implication is that he is possessed of the requisite skill in that branch of profession which he is practicing and while undertaking the performance of the task entrusted to him, he would be exercising his skill with reasonable competence. This is all what the person approaching the professional can expect. Judged by this standard, a professional may be held liable for negligence on one of two findings: either he was not possessed of the requisite skill which he professed to have possessed, or he did not exercise with reasonable competence in the given case, the skill he possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession.
8. Per contra, learned counsel, appearing for the appellant has submitted that it is an admitted fact that the appellant had given the report (Exhibit- 6) to the effect that the complainant was suffering from ‘ CONTRACTED GB WITH MULTIPLE CHOLELETHIASIS’ and on the basis of said report, respondent No. 3 had performed the surgery. It is also an admitted fact that at the time of opening the abdomen, the Gall Bladder of the complainant was found congenitally absent meaning thereby the complainant did not have a Gall Bladder since his birth. There is no question of change of ultrasound report within a period of eight days as per evidence of D.W. 2 (respondent No. 3).
9. It is submitted by the learned counsel that the principle of res ipsa loquitor is applicable in this case as the thing proves itself. The burden lies on the respondent/appellant to prove that she had taken care and done her duty diligently to repel the charge of negligence. The appellant in no manner could establish that she had taken due care or that the report she had given was a plausible report.
10. It is further argued on behalf of the complainant that it is not a case of error of judgment. The test of error of judgment by a person exercising and professing a special skill can only arise when the person concerned proves that a reasonable care was taken. In the instant case, the appellant simply pointed out the failure of respondent No. 3 to go for another ultrasound report before surgery. The appellant failed to prove that she had taken due care in providing the report. Therefore, the question of error of judgment / test can not apply to the facts and circumstances of the case.
11. It is further argued that the evidence on record clearly shows that the opinion/report has been given by the appellant, who professes to be an expert in the field and also professes that the instrument used was in order. The fact remains that on open surgery being conducted, it was found that the complainant had no gall bladder at all. Under the circumstances, the appellant can not by taking the help of a foot note in her report to the effect that ultra sonography diagnosis alone is not confirmatory, escape from negligence and liability on account of such negligence.
12. In the cited case of Vipin & Anr. vs Dr.Rabindra Goyal & Anr. ,the State Consumer Disputes Redressal Commission, Uttarakhand, in First Appeal No. 310 of 2010, after ultrasound, the complainants were informed verbally that the baby in womb of the complainant No. 2 is not alive and had died. But the doctor after check-up told that the baby is alright and advised for another ultrasound from other laboratory. The second ultrasound report established that the baby in womb is alive. Thereafter, the complainant again approached the opposite party No. 1 who asserted that the report issued by him is correct. The complainant then visited another doctor who told that the baby in the womb is hale and hearty. Complaint was lodged against opposite party No. 1. It was observed that there was no mention in the report that the complainants should go for second opinion in the matter. That the pathologists need to be very careful while giving finding/result, which could have some element of doubt or error, to go for a second check.
13. In the cited case, the complainant got her ultrasound done from other laboratories including the government hospital, who all have stated in their report that the foetal heart is normal but the opposite party No. 1 went on saying that the report issued by him is correct and other reports are incorrect. Here in the instant case, in the report, it was categorically mentioned that ultra sonography diagnosis alone is not confirmatory. There was no other report to say that ultra sonography report issued by the appellant is incorrect or the appellant failed to exercise a reasonable degree of care.
14. In various medical literature and the journals viz agenesis of Gall Bladder Lesson to learn JSLS, Journal of the society of Laparoendoscopis surgeons, Oxford Medical Case Report published online 2016, August 29th – Congenial agenesis of gallbladder a UK case report, Mystery of absent Gall Bladder: Surgical Concerns and Review Literature , it has been reported that congenial absence of the gall bladder is very rare but well recognized condition. This condition can present as a diagnostic and intra-operative dilemma to the surgeon. The isolated absence of gall bladder any cystic duct is rare but is misinterpreted as cholecystitis with cystic duct obstruction or as sclera-atrophic gall bladder, therefore leading to unnecessary surgery. Pre-operative imaging technique can miss the diagnosis. Further to verify the possibility that the person may still be having an intact gall bladder, further tests are required. Most gall bladders are missed when they are contracted or intranepatic MRCP is more confirmatory diagnostic study to state congenital absence of gall bladder not an USG or negative exploration during surgery.
15. In the case of Nehra (Dr.) Vs Shalini Vij and Ors. reported in 2008 (3) CPC 622, complaint against the petitioner was that he conducted the ultrasound of the complainant’s abdomen and reported ‘abscess on the left lobe of the liver’. The complainant decided to have second opinion and in the second ultrasound it was revealed that the complainant did not have any liver abscess, hence there was no need for any surgery or treatment. It was observed that “the ultrasound report given by the petitioner is an unqualified one stating clearly and unequivocally ‘liver abscess left lobe.’ It is only the Jaipur Golden Hospital wherein they use the words, ‘ Please correlate clinically.’ The petitioner can not take advantage of the advice rendered by some other radiologist. 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. The very fact that the report of the petitioner about the abscess left lobe is contradicted by another report within 24 hours by another radiologist in another hospital, speaks volumes about the competence of the petitioner.
16. In the case of Kusum Sharma Vs Batra Hospital and Medical Research Centre (2010) 3 SCC 480, the Apex Court laid down guidelines to govern cases of medical negligence as under ;
“ On scrutiny of the leading cases of medical negligence both in our country and other countries specially the United Kingdom, some basic principles emerge in dealing with the cases of medical negligence. While deciding whether the medical professional is guilty of medical negligence, the following well-known principles must be kept in view:
- Negligence is the breach of duty exercised by omission to do something which
a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.
- Negligence is an essential ingredient of the offence. The negligence to be
establish by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.
- The medical professional is expected to bring a reasonable degree of skill and
Knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires.
- A medical practitioner would be liable only where his conduct fell below that
of the standards of a reasonably competent practitioner in his field.
- In the realm of diagnosis and treatment there is scope for genuine difference
Of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.
- The medical professional is often called upon to adopt a procedure which
involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence.
- Negligence cannot be attributed to a doctor so long as he performs his
duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.
- It would not be conducive to the efficiency of the medical profession if no
Doctor could administer medicine without a halter round his neck.
- It is our bounden duty and obligation of the civil society to ensure that the
medical professionals are not unnecessarily harassed or humiliated so that they can perform their professional duties without fear and apprehension.
- The medical practitioners at times also have to be saved from such a class
of complainants who use criminal process as a tool for pressuring the medical professionals/hospitals , particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discharged against the medical practitioners.
- The medical professionals are entitled to get protection so long as they
perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals.
In our considered view, the aforementioned principles must be kept in view while deciding the cases of medical negligence. We should not be understood to have held that doctors can never be prosecuted for medical negligence. As long as the doctors have performed their duties and exercised an ordinary degree of professional skill and competence, they cannot be held guilty of medical negligence. It is imperative that the doctors must be able to perform their professional duties with free mind.”
17. In the Jacob Mathew (Supra) case, it was held that a professional may be held liable for negligence on one of the two findings; either he was not possessed of the requisite skill which professed to have possessed or he did not exercise with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession.
18. It is nobody’s case that the appellant has not possessed of the requisite skill which she professed to have posses. The appellant in her evidence as PW 1 stated that reading of the sonography film showed multiple echo reflective substance with dense distal shadowing inside the cumen of C.B.D. and hence she gave the report with the impression ‘contracted Gall Bladder with Multiple Cholelethiasis. She also asserted that in the said report it is mentioned that ‘ Ultra sonographic diagnosis alone is not confirmatory.’ The complainant in his cross-examination has admitted that save and except ultrasonography vide Exhibit 6 no other test was conducted to confirm the diagnosis. There is no expert evidence that by reading of the sonography film which showed multiple echo reflective substance with dense distal shadowing inside the cumen of C.B.D. the impression/report given by the appellant is absurd or that the appellant did not exercise the reasonable competence, the skill she possesses. There is no evidence that an ordinary competent person exercising ordinary skill in the profession could have opined differently.
19. On perusal of medical literature as herein above discussed is it apparent that congenital absence of the gall bladder is a very rare but well recognized condition. The isolated absence of gall bladder and cystic duet is rare but is misinterpreted as cholecystitis leading to unnecessary surgery. Pre-operative imaging techniques can miss the diagnosis.
20. The appellant in this case simply conducted the ultrasonography test and she neither provided any treatment nor conducted surgery. The error of judgment as per the settled law cannot be termed as medical negligence on the part of the appellant.
21. In view of the aforesaid discussion, we hold that judgment passed by the District Forum is liable to be set-aside.
22. In the result, the appeal is allowed. The impugned judgment and order dated 10-06-2016 passed by the District Forum, Golaghat, is hereby set-aside. The complaint filed by the complainant stands dismissed. Parties shall bear their own costs.
23. Statutory amount deposited by the appellant shall be returned to the appellant or their authorised agent.
24. Send back the original record along with a copy of this judgment to the District Forum.
