by save net"> Diabetic
& Medical
7, New-23, School Road, Nalta, Speciality Centre (P) Ltd, VIP Road,
Kolkata- 700028, Teghoria, P.S. Baguiati,
P.S. Dum Dum, Kolkata- 700059.
Dist- North 24 Pgs. 2.Zoom Health Care, Service through
Ms. Barnali Dey, General Manager,
S.J. Memorial Diabetic & Medical
Speciality Centre(P) Ltd, VIP Road,
Teghoria, P.S. Baguiati, Kol-700059.
3.Dr. Goutam Ghosh, M.D(Radiologist
Department of Radioloty, Zoom
Health Care, S.J. Memorial Diabetic &
Medical Speciality Centre (P) Ltd,
VIP Road, Teghoria, P.S. Baguiati,
Kolkata- 700059.
4. Dr. Dibakar Ghosh, MS, FRCS,
Consultant Urologist, Reg. No.47816,
Attached to Divine Nursing Home,
11A, Abinash Ch. Banerjee Lane,
Kolkata-700010, and his residential
Address at FE-90, Salt Lake, Sector-III
Kolkata- 700106.
J U D G E M E N T
The fact of the case, in brief, is that the complainant approached the O.P. No.4 for medical treatment on and from 19.12.13. The O.P. No.4 used to provide medical treatment to the complainant against the professional fees.
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The complainant stated that during the course of treatment /medical check up on 04.01.14, the O.P No. 4 (Dr. Dibakar Ghosh, MS, FRCS) advised the complainant to go for an X-ray of KUB (Digital) and come for review after one month.
The complainant further stated that as per the advice of the O.P. No.4, the complainant underwent the above X-ray at the Zoom Health Care Centre of the O.P. Nos. 1 & 2 on 12.02.14. The department of Radiology of the O.P. Nos. 1 & 2 issued a report under the signature of Dr. Goutam Ghosh, MD (Radiologist) O.P. No.3 which inter-alia spoke of and/ or gave findings:-
*“stent seen in Right Ureter”
* “No other Radio Dense Shadow is seen”.
A photo copy of the above Report dated 12.02.14 issued by the Zoom Health Care, S. J. Memorial Diabetic & Medical Speciality Centre (P) Ltd, V.I.P Road, Teghoria.
The complainant also stated that the complainant consulted Dr. Dibakar Ghosh on 15. 02.14 with the KUB X-ray (Digital) report dated 12.02.14 issued by the Zoom Health Care Centre of O.P. Nos. 1 to 3 Dr. Dibakar Ghosh was not convinced with the views expressed there in the report of the O.P. Nos. 1 to 3 that “No Other Radio Dense Shadow is seen”. He circled from his clinical view the area in the X-ray plate given to the complainant along with the report dated 12.02.14 by the O.Ps as to the existence of ‘calculus’. In order to ascertain the correct status of the calculus, he prescribed for Digital IVU.
The complainant further stated that against the prescription dated 15.02.14 of Dr. Dibakar Ghosh, the complainant underwent the prescribed IVU at JMD Diagnostic Pvt. Ltd, P-336, C.I.T. Road, VIM, Kolkata-700054 on 24.02.14 (since in between the complainant had to go for various blood tests essential before IVU Test). The report of the JMD Diagnostic Pvt. Ltd, P-336, C.I.T. Road, VIM, Kol-54 dated 25.02.14 in this respect contained inter-alia, the following findings:-
- Two Small Dense Shadows at Right Ureter at the side of the stent on the sacral region.
- Stent seen at right ureter with 2 small “caliculi” at right ureter in sacral region.
Relying upon the aforesaid report dated 25.02.14 of JMD Diagnostic Pvt. Ltd Dr. Dibakar Ghosh, MS, FRCS caused necessary operation/ surgery on the complainant on 08.03.14 at Divine Nursing Home (P) Ltd of 11A, Abinash Banerjee Lane, Beliaghata, Kolkata- 10 for URS + LC+ Stone Extraction JJ Stent removal and the complainant was discharged from the aforesaid Nursing Home on 09.03.14.
Dictated and corrected Contd. …. 3/-
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The complainant also stated that it is evident from the Report dated 25.02.14 of JMD Diagnostic Pvt. Ltd, the report dated 12.02.14 issued by the O.P. Nos. 1 to 3 were mis-leading/ wrong/incorrect/erroneous/ deficient and for which the complainant was seriously prejudiced in the matter of determination of the true state of his diseases/ sufferings as also undergoing proper medical tr5eatment in time. The negligence in giving proper findings by the O.P. Nos. 1 to 3 in their report dated 12.02.14 to the text “No other radio dense shadow is seen, which had caused severe health hazards, mental agony, additional expenditures casted on the complainant on account of Doctor’s prescribing further tests without attaching credibility on report dated 12.02.14 of the O.P. Nos. 1 to 3, followed by surgery/operation for URS+LC+Stone Extractions JJ stent Removal. Besides, had the attending doctor did not opt for further investigations against the report dated 12.02.14 issued by the O.P. Nos. 1 to 3, and would have been be satisfied with the findings of the report dated 12.02.14 issued by the O.P. Nos. 1 to 3, the situations could endanger the health/ life of the complainant by ignoring proper medical treatment due to incorrect diagnosis and no/wrong/belated treatment there against the report dated 12.02.14 of the O.P. Nos. 1 to 3.
The complainant further stated that by letters/e-mail communications dated 26.02.14, 04.03.14, 05.03.14, 09.03.14 etc. the complainant, inter-alia requested the O.P. No.2 to explain /clarify as to why he shall not approach appropriate Forum for compensation against their negligence to deal with faulty/ defective/mis-leading report dated 12.02.14 and deficiency in medical services at their health care centre.
The complainant also stated that to plug the deficiencies which are otherwise evidently clear in the report dated 12.02.14, the General Manager of O.P. Nos. 1 & 2, adduced some clarifications which were actually tendered by O.P. No.3. Those clarifications were found inconsistent/irrelevant/ contradictory, done in after thought by getting access to the findings of JMD Diagnostic Pvt. Ltd’s report dated 24/25.02.14, a copy of which was sent to them by the complainant during his calling explanations/ clarifications over the contradiction in the findings between the Zoom Health Care Centre (O.P. Nos. 1 to 3) and JMD Diagnostic (P) Ltd.
The complainant further stated that the O.P. Nos. 1 to 3 have acted negligently while issuing the report dated 12.02.14 of X-ray of KUB (digital) of the complainant causing him huge amount of medical expenses to defray, sustain
Dictated and corrected Contd. …. 4/-
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physical pain, mental agony and creating a situation when it could have been fatal/endanger the life of the complainant had not the attending urologist prescribed further investigations without being convinced about the findings “No other radio dense shadow is seen” of the report dated 12.02.14 issued by the O.P. Nos. 1 to 3. Hence the complaint.
The O.P. No.3 has contested the case by way of filing written version.
The O.P stated that as per advice of Dr. Dibakar Ghosh the O.P. No.4 of the complaint, the complainant came to Zoom Health Care Centre of the O.P. Nos. 1 & 2 on 12.02.14 for digital X-ray for KUB ( kidney, uriter, bladder). The complainant was charged Rs. 300/- for the same. Relevantly no previous history or the previous x-r5ay done by the complainants, were presented either for information or for comparison. The Zoom KUB X-ray was done with no prior knowledge of any history of patients ailments or knowledge of previous x-rays from any Diagnositic Centre for previous treatment of the complainant.
The O.P further submitted that the ordinary KUB X-ray was reported as stent seen in Right –uriter (Stent in radio –dense tube) implying stent in normal position and not coiled up. No other radio-dense shadow in kidneys. Urinary Bladder region and left ureter. Right ureter already has a radio-dense stent tube which can overlap and also obscure outlines of any other sizeable opacity, with no pr5ior knowledge of patients treatment history or previous X-ray ordinary digital KUB X-ray has poor specificity of only 70-76% as multitude of non urological radio-dense opacities like vascular calcifications, calcified mesenteric modes, phleboliths etc. from differential diagnosis for ureteric calculus.
The O.P further submitted that the Radiolucent Calculi forming 10-20 % of ureteric calculi cannot be same on ordinary KUB X-ray. The sensitivity of ordinary digital KUB X-ray in determining a ureteric calculus with no prior knowledge of any patients treatment history or reference to previous X-rays is poor and only 45-60% as per British Medical Journal B.M.J Post Graduate Medical Journal. American Urological Association Guideline stated that sensitivity of only 57% for plain KUB X-ray which increases to 70% for digital IVU X-ray. Relevantly vide Radiology Text Book stated that stone may be present in 30% of the time when KUB X-ray in negative.
The O.P also stated that Dr. Dibakar Ghosh prescribed Digital IVU and not KUB X-ray. Both hare different diagnostic modalities with different costs and
Dictated and corrected Contd. …. 5/-
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diagnostic efficiency. Plain digital KUB X-ray costs Rs. 300/- only with sensitivity of 45-60% in best institute, digital IVU X-ray costs Rs. 3,500/- only with sensitivity of 70-90% in best institution.
The O.P further stated that on perusal of the KUB X-ray report of Zoom Health Care Center dated 12.02.14 by Dr. Dibakar Ghosh advised to complainant to take further IVU Digital X-ray as to determine the actual existence of the calculus which was not prominent from the KUB Digital X-ray report dated 12.02.14 an according to such advice the complainant underwent digital IVU X-ray at JMD Diagnostic Pvt. Ltd. Digital IVU X-ray has a diction rate as high as 70-90% to detect radio-dense ureteric calculus against 45-60% for plain digital KUB X-ray, as such from the advice of Dr. Dibakar Ghosh it is not evident that the report of the O.P. No.3 dated 12.02.14 is not correct and the O.P. No.3 is guilty of medical negligence.
The O.P also stated that when the complainant came to the O.P for first time on 12.02.14 for KUB X-ray never disclosed any previous treatment which he already attained not shown any treatment papers to this O.P to show that what treatment he has already attend or any previous comparative KUB X-ray report for the knowledge of this O.Ps regarding the elements which the complainant already suffers, nor any previous clinical history as such medical negligence as alleged by the complainant on the O.P does not arise at all.
The O.P further stated that the complaint filed by the complainant against this O.P is not at all bonafide and with a clean hand, it is simply a harassing one and with a ulterior motive and for unlawful gain, the released as short by the complainant in the prayer portion of the complaint are baseless and without any money, as such the complainant is not at all entitled to any relief or any compensation as claim against this O.P. Hence the O.P prayed for dismissal of the case.
Point for Decision:-
Whether the complainant is entitled to get any relief as prayed for?
Decision with Reasons
The complainant and the O.Ps have filed the affidavit-in-chief and documents to support of their contention.
Dictated and corrected Contd. …. 6/-
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The complainant argued that that he underwent the above X-ray at Zoom Health Care Centre (under the O.P. Nos. 1,2 & 3) on 12.02.14. The department of Radiology of O.P. Nos. 1 & 2 issued a report under the signature of O.P. No.3 (Dr. Goutam Ghosh, M.D.(Radiologist) which interalia speasks of and / or gave findings:-
*“stent seen in Right Ureter”
* “No other Radio Dense Shadow is seen”.
After getting the X-ray reported dated 12.02.14 from the O.P. Nos. 1 to 3 the complainant consulted Dr. Dibakar Ghosh after careful examination of the X-ray report and the X-ray plate issued by O.P. No.3 expressed his reservation to accept the opinion /view expressed the O.P. No.3 (Dr. Goutam Ghosh, MD (Radiologist) on 12.02.14. Dr. Dibakar Ghosh did not accept the findings report dated 12.02.14 issued by O.P. No.3 from his clinical view of the X-ray Plate and in order to ascertain the exact position prescribed for Digigal IVU of the complainant. Pursuant to the advice/ prescription of Dr. Dibakar Ghosh dated 15.02.2014 the complainant underwent Digital IVU on 24.02.14 at JMD Diagnostic Pvt. Ltd, P-336, C.I.T. Road, VIM, Kol-54. The report dated 25.02.14 issued by Prof. A. R. Sahu, M.B.B.S, D.M.R.E, JMM Diagnostic Pvt. Ltd contained, interalia, the following findings-
“Stent seen at right Ureter.
Two small dense shadows at right Ureter at the side of the stent on the sacral region”.
In the said report Prof. Sahu also expressed his impression to the following effect:-
“Stent at right Ureter with two small calculi at right Ureter.
Mild. Hydronephrosis of right Kidney”.
The complainant contended that he consulted Dr. Dibakar Ghosh with the Digital IVU report dated 25.02.14 issued by JMD Diagnostic Pvt. Ltd. After examining the report dated 25.02.14 from his clinical view Dr. Dibakar Ghosh accepted the same and caused necessary operation/ surgery of the complainant on 08.03.14 at Divine Nursing Home Pvt. Ltd, 11A, Abinash Chandra Banerjee Lane, Beliaghata, Kol-10 for URS + LC + Stone Extraction JJ Stent Removal.
It is contended that from the report of Digital IVU dated 25.02.14 of JMD Diagnostic Pvt. Ltd that the report of Digital X-ray dated 12.02.14 issued by O.P. no.3 was incomplete and/ or misleading and/or wrong and/or incorrect and/or erroneous and/or deficient and the complainant was seriously prejudiced. Due to negligence of the O.P. Nos. 1 to 3 in giving proper findings in the report dated 12.02.14 the complainant has suffered severe health hazardous, mental agony. The doctor of his client could not attach credibility on the report dated 12.02.14
Dictated and corrected Contd. …. 7/-
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issued by the O.P. No.3 and as such the complainant had to go for further Digital IVU causing him additional expenditure, surgery etc. It is also contended that in the earlier two KUB X-ray (Digital) reported it was mentioned about the presence of Radio Opaque Calculus shadow in the right renal area of the complainant namely-
- The first X-ray KUB (Digital) reports issued by the Life Line Diagnostic dated 17.12.13 emphatically gave, inter alia, findings of “A radio opaque calculus shadow seen at right side at the level L4 msuggesting Right Uretic Calculus”.
- The KUB X-ray (Digital) done at the Life Line Diagnostic on 01.01.14 also inter alia mentioned “Presence of a radio opaque calculus shadow seen in right renal area”. But in the KUB X-ray (Digital) report dated 12.02.14 issued by the O.P. Nos. 1 to 3 it was surprisingly mentioned that there is no other Radio Dense Shadow is seen to the complainant.
It is also contended that the complainant had a possibility of serious illness including risk of life had the attending Doctor (Dr. Dibakar Ghosh) did not opt for further Digital IVU of the complainant on 15.02.14 and relied upon the report dated 12.02.14 issued by the O.P. No.3 Dr. Dibakar Ghosh in fact saved the life of the complainant by ignoring the report dated 12.02.14 issued by the O.P. No.3.
The complainant further contended that “In the medical parlance, when a medical report is called for from a Diagnostic Centre against an X-ray of a patient, if the findings suggest any further investigations to be carried out for comprehensive findings to arrive at/ forming absolute opinions, the report should be specifically speaking to that respect. In the present case, the findings as incorporated in the report were given conclusively as “No other radio dense shadow is seen”. It is thus a clear case of negligence on the part of the O.P. Nos. 1 to 3 for failure to mention the true state of the existing calculus of the complainant or to suggest any further investigations if the findings of KUB (Digital) could not support any conclusive findings to arrive at”.
Ld. Lawyer for the complainant relied on a decision of the Hon’ble Supreme Court of India in a case reported in (2010) 5 Supreme Court Cases 513 (In Re: Kishan Rao –Vs- Nikhil Super Speciality Hospital & Another) inter alia, laid down that the C. P. Act has been enacted to provide for speedy redressal of consumer disputes and such legislative purpose cannot be defeated or diluted by super imposing requirement of having expert evidence in cases of Civil medical negligence. The Hon’ble Court held that in simple cases of Civil medical negligence expert evidence is not required and the members of the Forum can decide the same on the basis of facts and records.
“It is submitted that the O.P. Nos. 1 to 3 are guilty of medical negligence and / or deficiency of service. The complainant is entitled to the reliefs as prayed for in the application”.
Dictated and corrected Contd. …. 8/-
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Ld. Lawyer for the complainant relied on decisions reported in the Hon’ble Supreme Court of India in a case reported in (2010) 5 Supreme Court Cases 513 (In Re: Kishan Rao –Vs- Nikhil Super Speciality Hospital & Another) where it has been held that “those directions are also contrary to the avowed purposes of the Act. In this connection we must remember that the Act was brought about in the background of a worldwide movement for consumer protection. It is clear from the Statement of Objects and Reasons of the Act that hit is to provide a Forum for speedy and simple redressal of consumer disputes. Such avowed legislative purpose cannot be either defeated or diluted by superimposing a requirement of having expert evidence in all cases of medical negligence regardless of factual requirement of the case. If that is done the efficacy of remedy under the Act will be substantially curtailed and in many cases the remedy will become illusory to the common man”.
Ld. Lawyer for the complainant relied on decisions reported in Jacob Mathew v. State of Punjab, (2005) 6 SCC 1, Bolam v. Friern Hospital Management Committee (1957) 1 WLR 582 etc. wherein it has been held that –
“ F. Consumer Protection- Services- Medical practitioners/ services- Medical negligence- Test for- Bolam test, (1957) 1 WLR 582- Applicability of – said test laying down that a doctor “is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art”- Need for reconsideration of the test- Held, the test is being criticized in country of its origin (England) in view of right to life available under European Convention on Human Rights (ECHR) and Human Rights Act, 1998 (England)- In England, Bolam test is now considered merely a rule of practice or of evidence and not a rule of law- The test needs to be reconsidered in India also in view of Art.21 which guarantees right to medical treatment and care- But the test, for the present, cannot be departed from in India because of binding precedent of Jacob Mathew case, (2005) 6 SCC 1- Constitution of India- Art.21 – Right to medical treatment and care- Human and Civil Rights- European Convention on Human Rights (ECHR) – Human Rights Act, 1998 (UK) – Sch. 1, Pt.1, Art.2- Tort Law- Negligence”.
According to the complainant, on 12.02.14 the complainant was compelled to underwent KUB (Digital) X-ray at Zoom Health Care Centre as Life Line Diagnostic Centre was closed on that day. The report of Dr. Goutam Ghosh, MD (Radiologist) dated 12.02.14 to that effect that “ No other radio dense shadow is seen”. Caused confusion /dilemma to Dr. Dibakar Ghosh, MS, FRCS and he could not believe that report. Since there was different of opinions of earlier KUB (Digital) X-ray report of Life Line and the KUB (Digital) dated 12.02.14 of Zoom asked for IVU (Digital) to remove confusion. From the second report, it is established that the former report dated 12.02.14 issued by Dr. Goutam Ghosh is incorrect.
Dictated and corrected Contd. …. 9/-
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We have also perused the decision reported in 1999 (1) CPR 522 (Darshan Kau –vs- Dr. J. S. Sodhi and others) wherein it has been held that “Radiologist- Showing report- Ultra sound test of abdomen- Report stating that Gallbladder contained- Multiple Ecogenic shadows of stones- no stones found of surgery- negligence held and pre disappearance of stones within short span of time unacceptable and some charged for examination to be refunded with cost”.
In the present case nothing was found on examination and after 12 days Radio tests shadows at right ureteric etc. of the complainant is not at all convincing.
Accordingly, after perusal of the complaint and affidavit-in-chief of the O.P. Nos. 1 to 3 and the documents filed by the complainant, we are of the view that this is a fit case of medical negligence and complainant is entitled to get compensation and cost of litigation in this case.
Hence
Ordered,
that the complaint be and the same is allowed on contest against the O.P. Nos. 1 to 3 and exparte against the O.P. no.4.
O.P. Nos. 1 to 3 are jointly and severally directed to pay Rs. 50,000/- as compensations towards sufferings of pain, mental agony, medical cost situations which would have led to loss of life of the complainant and litigation cost of Rs. 10,000/- to the complainant within one month from the date of this order, failing which the O.Ps shall have to pay sum of Rs. 200/- per day from the date of this order till its realization, as punitive damages, which shall be deposited by the O.Ps in this State Consumer Welfare Fund.
Let copies of the order be supplied to the parties free of cost when applied for.
Member Member President
Dictated & Corrected by me.
