BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM<br /> VAZHUTHACAUD : THIRUVANANTHAPURAM<br /> <br /> PRESENT :<br /> <br /> SHRI. G. SIVAPRASAD : PRESIDENT<br /> SMT. BEENA KUMARI .A : MEMBER<br /> SMT. S.K. SREELA : MEMBER<br /> <br /> O.P.No. 369/2002 Filed on 26..08..2002 <br /> Dated: 15..07..2008<br /> <br /> Complainant:<br /> <br /> A. Subaida, T.C.29/672 (old) New T.C.No.74/1377, “Fathima”, Kaithamukku, Thiruvananthapuram – 23.<br /> <br /> (By Adv. Shri. P. Salim Khan)<br /> <br /> Opposite party:<br /> <br /> The Proprietor, M/s. Devi Scan Pvt. Ltd., opp. Medical College High School, Kumarapuram, Thiruvananthapuram – 11.<br /> <br /> (By Adv. Shri. L. Ramesh Babu) <br /> This O.P having been heard on 23..05..2008, the Forum on 15..07..2008 delivered the following:<br /> ORDER<br /> <br /> SHRI. G. SIVAPRASAD, PRESIDENT : <br /> <br /> The fact leading to the filing of the complaint is that due to severe stomach ache the complainant consulted Dr. Jayakumar, Assistant Professor of Medical College Hospital, Thiruvananthapuram on 11..09..2000. The complainant was under treatment of Dr.Jayakumar for Diabetics for last 5 years. Dr. Jayakumar referred the complainant to M/s. Devi Scan Pvt. Ltd., Thiruvananthapuram for scanning the abdomen of the complainant. As per the scanning report of the opposite party there is an “Adnexal – Cystic Lesion” with Benign Cyst and Twisted Ovarian Cyst. On examination of the scan report Dr.Jayakumar advised the complainant to consult a Gynaecologist. The complainant went to Dr.Syamala, Deputy Superintendent, SAT Hospital,Thiruvananhapuram. On going through the scan report Dr. Syamala advised the complainant for an immediate surgery. On 29..12..2001, the complainant went to Cosmopolitan Hospital and consulted Dr. Sujatha Bhatt. Dr. Sujatha Bhatt after seeing through the scan report advised her to undergo operation and she referred her to Regional Cancer Centre, Thiruvananthapuram for a revised scanning to ensure double accuracy. As per R.C.C scan report there was no Adnexal Mass as noted in the scan report of the opposite party. On going through the scan report of the R.C.C Dr. Sujatha Bhatt never advised surgery. The said scan report was then shown to Dr. Jayakumar, who also confirmed the same. Opposite party's wrong scan report caused the complainant severe mental pain, shock, harassment and agony and incurred unwanted expenditure which cannot be compensated in money. Opposite party is liable to pay compensation of Rs. 50,000/- to the complainant. Hence this complaint claiming compensation of Rs. 50,000/- with future interest at12% per annum from 11..09..2000, medical expenses of Rs. 4,485/- and cost of the proceedings.<br /> <br /> 2. Opposite party entered appearance and filed version contending that the complaint is not maintainable either in law or on facts. It is true that Smt.Subaida came to the opposite party's laboratory on 11..09..2000 for an ultra sound scan of the abdomen. The scan was conducted by an eminent doctor, Dr.Dhinakar Sundaram, a consultant radiologist who is fully qualified to do the ultra sound scan. The scan report revealed anechoic cystic lesion measuring 9.6 x 8.2 x 8.2cms in the right adnexa. It is alleged in the complaint that the complainant went to Dr. Jayakumar and Dr. Syamala and Dr.Syamala advised the complainant to undergo immediate surgery. Three months later it is alleged by the complainant that she went to Dr. Sujatha Bhatt, who advised her to undergo an immediate surgery. But she rightly referred the complainant to R.C.C., Thiruvananthapuram for a revised scan. There was a gap of more than three months after the first scan from the opposite party's laboratory. Dr. Sujatha Bhatt revealed that no cystic mass lesion was found in the scan report taken at R.C.C. She advised that there is no necessity for conducting the surgery because due to spontaneous regression the cyst has resolved. Opposite party firmly believes that this complaint is falsely foisted against this opposite party under the instigation of some clinical laboratory people who are jealous of the success of opposite party's laboratory of its correct results, out of sheer professional rivalry and with the bad motive of tarnishing the reputation of the clinical laboratory might be behind this complaint. There is no negligence on the part of the opposite party or the doctor, who had done the U.S scan. There is no deficiency in service on the part of the opposite party. The opposite party has given correct report and hence mental pain, shock, harassment alleged by the complainant are not liable to be compensated. On receipt of the Advocate's notice opposite party contacted the complainant and explained the matter to her with all technicalities and she was convinced that a cystic lesion can disappear by regression. In certain case in general the cyst might regress spontaneously or the twisted ovarian cyst might untwist depending upon the length of the pedicle on the degree of rotation which should more than 540 degree rotation, more than one and a half times on its axis, where blood vessels jeopardised and severe pain might result. This complainant is not entitled to any compensation. Hence opposite party prayed for dismissal of the complaint in limine.<br /> <br /> 3. The points that would arise for consideration are:<br /> (i)Whether there has been negligence or deficiency in service on the part of opposite party?<br /> <br /> (ii)Reliefs and Costs?<br /> <br /> 4. To support the contention in the complaint, complainant has filed an affidavit of herself as PW1 in lieu of examination in chief and witnesses as PW2 and PW3 and marked Exts.P1 to P13. Opposite party has filed an affidavit by way of evidence.<br /> <br /> 5. The first point requiring consideration is whether there has been negligence or deficiency in service on the part of opposite party. The grievance of the complainant is that complainant was under treatment of Dr.Jayakumar, Assistant Professor, Medical College Hospital, Thiruvananthapuram. On 11..09..2000 complainant developed a severe stomach ache, on consultation, Dr. Jayakumar suggested her to take a scan of the abdomen. As per doctor's advice, complainant went to opposite party's scanning centre to take the scan of the abdomen. As per scanning report there was “Adnexal – Cystic Lesion” with Benign Cyst and Twisted Ovarian Cyst. On seeing the scan report Dr.Jayakumar advised the complainant to consult a Gynaecologist for expelling the cyst. Complainant consulted Dr. Syamala, Deputy Superintendent, SAT Hospital, Thiruvananthapuram. On going through the scan report, Dr.Syamala advised the complainant for an immediate surgery. Thereafter, on 29..12..2001 the complainant consulted Dr.Sujatha Bhatt at Cosmopolitan Hospital. On seeing the scan report an immediate surgery was advised but doctor referred the complainant to R.C.C., Thiruvananthapuram for a revised scanning to ensure double accuracy. When the complainant was scanned at R.C.C., it was found there was no Adnexal Mass as noted in the opposite party's scan report. Going through the scan report of the R.C.C., both Dr.Sujatha Bhatt and Dr.Jayakumar advised that there is no necessity for conducting the surgery. Main thrust of argument advanced by the counsel appearing for the complainant was to the effect that by giving a wrong scan report by the opposite party complainant was put to severe mental pain, shock, harassment and agony and incurred unwanted expenditure. Opposite party has resisted the complaint by filing objection (version) with proof affidavit.<br /> <br /> 6. It has been asserted by the opposite party that the Ultra Sound Scan was conducted by an eminent doctor Dr.Dhinakar Sundaram, a consultant radiologist. He is fully qualified to do the Ultra sound scan. While denying the allegations contained in the complaint, opposite party asserted that this complaint was falsely foisted against the opposite party under the instigation of some clinical laboratory people who are jealous of the success of the opposite party's laboratory of its correct result. It has been asserted that there is no negligence on the part of opposite party.<br /> <br /> 7. It has been stated in the complaint that due to severe stomach ache the complainant has consulted Dr.Jayakumar on 11..09..2000. But in the affidavit by way of evidence it is stated that she has consulted Dr.Jayakumar as a part of periodical check up. What is important to be noticed in this case is the factual aspect of the matter and expert opinion. Ext.P1 is the scan report dated 11th September, 2000 issued by the opposite party. A perusal of Ext.P1 scan report impression would reveal that ultra sound morphology of abdomen suggestive of right adnexal cystic lesion (a) Berign Cyst (b) Twisted Ovarian Cyst. In the affidavit of the complainant, PW1 stated that on 11..09..2000 she consulted Dr. Jayakumar as a part of periodical check up, but her pleading in the complaint is that the said consultation was due to severe stomach ache. This is factually conflicting and contradicting. The pleadings in the complaint as well as in the affidavit is that, as per the advice of Dr. Jayakumar, complainant went to Dr. Syamala. In her cross examination complainant denied it and deposed that she consulted Dr. Sujatha Bhatt at Cosmopolitan Hospital. She deposed that she could not remember Dr. Syamala. This is another aspect of factual contradiction. Another factual contradiction is with regard to the date of consultation of Dr. Sujatha Bhatt. It is pertinent to note that in the pleadings in the complaint as well as in the affidavit. It has been stated that on 29..12..2001, complainant consulted Dr. Sujatha Bhatt. But in her cross examination she denied it Ext.P2 is the film of scan report. Ext.P3 is the Registration card issued by Cosmopolitan Hospital to the complainant wherein the date of Registration mentioned is 29..12..2000. Ext.P4 is the medical prescription issued to the complainant by Dr. Syamala, who has been examined as PW2. It is pertinent to note that in her cross examination PW1 deposed that she could not remember Dr.Syamala, while complainant attempted to examine Dr.Syamala on the part of complainant's evidence. In her examination in chief PW2, deposed that complainant was referred to her by Dr.Jayakumar, for Gynaecology consultation on 06..12..2000 (Ext.P4 shows to PW2). PW2 would depose that complainant approached her with acute stomach pain. Clinical examination of the complainant was carried out and examined the scan report from Devi Scans Pvt. Ltd brought by the complainant. On examination there was mass lesion measuring 9.6 x 8.2 at right adnexa. PW2 further deposed that since complainant came to her 3 months later after the scan report (Ext.P1) had taken, PW2 also scanned the complaint and found out the same as seen in Ext.P1 Complainant was advised to come for a detailed observation before surgery at her O.P. Thereafter complainant never turned up. PW2 would depose that she was not aware of the further development of the patient. In her cross examination Dr. Syamala deposed that as per Ext.P1 on 11th September 2000, the impression was that there is a mass lesion. After thorough check up PW2 was of the opinion that there is a mass lesion. PW2 further deposed that she would re-check the patient before surgery if there is any doubt before surgery. PW2 further deposed that she had done ordinary scan. She would do colour doppler system in case of suspicious malignity. If the twist is more than 1 ½ times, then the circulation will be cut. If the twist is only 50% or 60% untwisting can also occur. If it is an inflamatory mass it can disappear. Untwisted mass can rupture. Since some fluid is there, it will not create any pain to the patient. Hence it is diagnosed as clear mass. PW2 further deposed that scan done at R.C.C was three weeks later. It is seen that there is no adnexal mass. That means it is disappeared. Inflamatory mass can rupture. It is not seen later. It is pertinent to note that Dr.Syamala is working as Professor of Gynaecology at SAT Hospital, Thiruvananthapuram. We cannot disbelieve the deposition of PW2, who is an expert in Gynaecology. In cross examination, PW2 asserted that in Ext.P1 scan report of opposite party, and PW2's own scan report may not be wrong since there was mass at that time. In re-examination, Dr. Syamala stated that “I re-checked the patient, and recommended her for a surgery”. Dr. Jayakumar, Professor and Head of the Department of Medicine was examined as PW3, who stated that the complainant was examined by him and identified Ext.P10 to P12 prescription issued by him. Ext.P9 shown to PW3. Dr. Jayakumar deposed that as per scan report (Ext.P1) there is a lesion in the ovary. Ovarian cyst means a mass foundation near the ovary. It may require surgical intervention. So complainant was referred to a Gynaecologist. Surgical intervention is to be decided by a Gynaecologist. Dr. Jayakumar went on to say that Ultrasound scans are not accurate. Only 50% accuracy is there. After detection of a cyst, it can resolve spontaneously without any surgical intervention.<br /> <br /> 8. Opposite party was examined as DW1. DW1 deposed that he was qualified to conduct a scan centre and his employees are qualified doctors, radiologists, laboratory technicians etc. Very sophisticated machines are there in his scan centre.<br /> <br /> 9. In this case the allegation is overall negligence in the scan report of opposite party and diagnosis on the basis of it. The main plank of the defence of the opposite party as contended by the counsel for the opposite party appears to be that the scan of the complainant was taken by Dr. Dhinakar Sundaram, a highly qualified doctor in radio diagnosis. In his opinion there was cystic lesion measuring 9.6 x 8.2 x 8.2 cms in the right adnexia. The opinion of Dr. Dhinakar Sundaram is also confirmed by PW2 Dr. Syamala, Professor of Gynaecology, Medical College. Dr. Syamala opined that the cystic lesion could disappear she asserted that her scan report and the scan report of the opposite party may not be wrong, since there was mass at that time. Dr. Jayakumar, PW3 also expressed the same view. It is pertinent to note that the complainant's witness, PW2 & PW3 are medical experts who deposed that a cystic lesion as found in the opposite party's scan report, in some cases can resolve spontaneously by a lapse of time without any surgical intervention. No material on record to prove otherwise. We cannot disbelieve the opinion of expert doctors. Onus of proving the medical negligence or deficiency in service lies on the person who sets up a case. Having carefully examined the complaint and version and perusing the records of the case and depositions of medical experts and considering the rival contentions, we are of the considered opinion that complainant failed to establish the complaint. Negligence or deficiency is not proved. Complaint has no merits at all which deserves to be dismissed.<br /> <br /> In the result, complaint is dismissed. There will be no order as to costs.<br /> A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.<br /> <br /> Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum, this the 15h day of July, 2008.<br /> <br /> <br /> G. SIVAPRASAD,<br /> PRESIDENT.<br /> <br /> <br /> BEENA KUMARI. A : MEMBER<br /> <br /> <br /> S.K. SREELA : MEMBER<br /> <br /> ad.<br /> <br /> O.P.No.369/2002<br /> APPENDIX<br /> I. Complainant's witness:<br /> PW1 : Subaida<br /> PW2 : Dr. N. Syamala PW3 : Dr. B. Jayakumar<br /> II. Complainant's documents:<br /> P1 : Photocopy of scan report of abdomen of the complainant dated 11..09..2000<br /> P2 : Film of scan report produced by the complainant.<br /> P3 : Original Regn. Card of the complainant with Rec.No.OP.27-457 dated 29..12..2000<br /> P4 : Original Medical Prescription dated 07..12..2000 by Dr. Syamala, SAT Hospital, Thiruvananthapuram.<br /> P5 : Original receipt No.2035328 dated 30..12..2000 for Rs. 1,340/- from RCC., Thiruvananthapuram.<br /> P5(a) : “ No.2035333 dated 30..12..00 for Rs. 3,145/-<br /> P6 : Original C.T Scan report dated 30..12..2000 (C.T.No.3496) from R.C.C., Thiruvananthapuram.<br /> P7 : Copy of advocate notice dated 23..04..2001.<br /> P8 : Original acknowledgement receipt dated 27..04..2001.<br /> P9 : Original cash bill No.17813 dated 11..09..2000 for Rs. 400/-.<br /> P10 : Original medical prescription dated 20..10..1997 of complainant.<br /> P11 : “ dated 09..02..1998 “<br /> P12 : “ dated 24..06..2000 “<br /> P13 : “ dated 21..09..2000 “<br /> <br /> <br /> III. Opposite party's witness:<br /> <br /> DW1 : Ajith<br /> <br /> IV. Opposite party's documents: NIL<br /> <br /> <br /> <br /> PRESIDENT<br /> <br /> <br /> <br /> <br /> <br /> <br />