BY -  SRI   ASISH DEB,  PRESIDENT

                          1.       The facts in brief, leading to the complaint are that the complainant had been suffering from pain of abdomen since 23.03.2018.  She was examined by Dr. Ashfaque Ahmed at Tamluk and was advised for USG of abdomen and also prescribed medicines. The complainant consulted with the OP No. 2 for USG of upper abdomen on 03.05.2018 and the Ops took Rs. 500/-as cost of the test. On being examined the OP no. 2 reported that there are calculus in the gall bladder and common bile duct of the complainant. The complainant had been to Dr. Ashfaque Ahmed with the report when said Dr. Ashfaque Ahmed advised her to consult a surgeon for proper treatment. The complainant further consulted with Dr. Himadri  Kar on 22.05.2018 and Dr. Dipankar Bhattacharya on 28.05.2018.  Thereafter, the complainant had been to Kothari Medical Centre at Kolkata and she was admitted there on 30.05.2018. On 31.05.2018 MRCP test of the complainant was done by Dr. Arindam Bhandari, Radiologist whose report is that there is no Calculus in GB or C.B.D. and the complainant was discharged on 05.06.2018 having final diagnosis as Hepatitis B related Chronic Liver disease. It is the allegation of the complainant that due to wrong  USG report done by the OPs, the complainant sustained cost of Rs. 1,00,000/- for different medical treatment including Ambulance expenses and she was still suffering from mental agony due to medical negligence of the Ops.

                          2.        On the aforesaid grounds the complainant has filed this case for compensation of Rs. 5,00,000/- for medical negligence of the Ops, Rs. 20,000/- as litigation cost  and other reliefs if any.

                           3.          Both the Ops resisted and contested the complaint case by filing a single written version who claimed dismissal of the complaint on the grounds,inter alia  that the case is misconceived, harassing and devoid of merit .

                          4.          The Ops denied all the material allegations made in the complaint and specifically pleaded that OP No. 2 prepared the USG report  and diagnosed that there are calculus/stones in gall bladder and common  bile duct of the complainant, the image/plate of which was also provided to the complainant as a documentation for future reference.  Thereafter, the patient / complainant was advised by Dr. Ahmed for treatment by a surgeon and accordingly the patient was treated by Dr. Himadri Sekhar Kar on 22.05.2018 and by Dr. Dipankar Bhattacharya on 28.05.2018. Dr. Himdri Sekhar  Kar had prescribed medicines ie Ursodeoxycholic acid ( Ursokem) ,which was consumed by the patient . The said medicine can completely  dissolve tiny  gall stones.  This medicine has reference in various international medical journals also.  In the instant case the prescribed medicine could dissolve the gall stone of the complainant . As a result, Dr. Arindam Bhandari, Radiologist had prepared  the MRCP report on 31.05.2018 and calculus were not found in GB or CBD.  So, the OPs pray for dismissal of the complaint   with cost, being false, misconceived and harassing.

                           5.Rival Contentions of the Ld Counsel for the parties.

         A.                Ld Advocate for the Complainant has contended that due to wrong  USG report done by the OPs, the complainant sustained cost of Rs. 1,00,000/- for different medical   treatment ,suffered mental agony and harassment  due to medical negligence of the Ops. As such complainant prays for reliefs as described in the complaint.

         B.               Per contra  Ld Advocate for the ops has vehemently countered the contention of the  Ld Advocate for the Complainant and submitted that it is true that OP No. 2 prepared the USG report  and diagnosed that there are calculus in gall bladder and common  bile duct of the complainant. Complainant was advised by Dr. Ahmed for treatment by a surgeon and accordingly the patient was treated by Dr. Himadri Sekhar Kar on 22.05.2018 and by Dr. Dipankar Bhattacharya on 28.05.2018. Dr. Himadri Sekhar Kar had prescribed medicines ie Ursodeoxycholic acid (Brand name-Ursokem) ,which was consumed by the patient . The said medicine can completely  dissolve tiny  galls stone.  This medicine has reference in various international medical journals also.  In the instant case the prescribed medicine could dissolve the gall stone of the complainant .He also referred to page 305 of Journal of the Royal Society of Medicine Volume 78 April 1985 wherein the report was published that two cases in which gallstones greater than 1cm passed spontaneously from the common bile duct into the duodenum . As a result, Dr. Arindam Bhandari, Radiologist had prepared  the MRCP report on 31.05.2018 and calculus were not found in GB or CBD.  So, the he prays for dismissal of the complaint   with cost, being false, misconceived and harassing.

C.                      In reply  Ld Advocate for the Complainant has contended the Complainant did not consume the prescribed medicine  Ursokem ,thus the question of dissolving gall stones does not arise, he pointed out the suggestion put to the opw-1, wherein the doctor witness stated  that he did not know about it.

        6.  The points that arise for determination are as follows:

I. Whether there was deficiency in service on the part of the opposite parties ?

II. Whether the Complainant is entitled to get the reliefs as prayed for?

DECISION WITH REASONS

 7. In Re:- Points No. I & II

8. As both the points are inter related we are inclined to address  the points simultaneously in order to avoid repetition of facts and evidence.

9.  We have given thoughtful consideration to the rival contentions of the Ld Counsel for both parties.

           10. Having regards had to the contents of complaint ,written version ,evidence( examination in chief on affidavit of the complainant, questionnaire by ops and reply by the complainant and evidence of opw-1 )and other materials on record, it appears that complainant is a consumer and particularly the ops -  acted as service provider, as such indisputably, the instant case is maintainable in its present form in law.

           11.    Now it is the crux of allegation of the complainant is that she  did not consume the prescribed medicine  Ursokem ,thus the question of dissolving gall stones does not arise. It is her firm stand that OP No. 2 prepared  wrong  USG report  and wrongly diagnosed that there were calculus in gall bladder and common  bile duct of the complainant. But the complainant has failed to prove the said averment by adducing cogent and reliable evidence.  She stated that she did not consume the prescribed medicine  Ursokem this a negative assertion .This assertion should be established by the complainant herself, the ops have no onus to prove the negative assertion. It is generally presumed that the patient consume the medicine prescribed by a registered medical practitioner. Therefore, the complainant can not take the plea that  she  did not consume the prescribed medicine Ursodeoxycholic acid (Brand name-Ursokem).

12. Coming to the contention of negligence by the medical practitioner, it is the trite concept that the skill of medical practitioners differs from doctor to doctor. The very nature of the profession is such that there may be more than one course of treatment which may be advisable for treating a patient. This commission would indeed be slow in attributing negligence on the part of the doctor if he has performed his duties to the best of his ability and with due care and caution .Medical opinion may differ with regard to the course of action to be taken by a doctor treating a patient , but as long as  a doctor acts  in a manner  which is acceptable to the medical profession and it is found that the doctor has attended the patient with due care skill and diligence,it would be difficult to hold the doctor to be guilty of negligence. It is evident that the doctor prescribed the medicine Ursodeoxycholic acid (Brand name-Ursokem)for the best interest of the patient. He has followed the standard normal medical parlance. Therefore, we find that there is substance in the contention of the Ld Advocate for the ops that Dr. Himadri Sekhar  Kar had prescribed medicines ie Ursodeoxycholic acid (Brand name-Ursokem) ,which was consumed by the patient . The said medicine could completely  dissolve tiny  gall stones which were detected by op-2.  This medicine has reference in various international medical journals also . In page 305 of Journal of the Royal Society of Medicine Volume 78 April 1985  the report was published that two cases in which gallstones greater than 1cm passed spontaneously from the common bile duct into the duodenum . The gallstones, in the instant case which were much smaller than 1cm might have passed spontaneously from the common bile duct. Resultantly, Dr. Arindam Bhandari, Radiologist had prepared  the MRCP report on 31.05.2018 and calculus were not found in GB or CBD. There is no iota of evidence adduced  to establish the elements of negligence on the  part of the ops by the complainant. There was no deficiency in service on the part of the opposite parties . Thus , both the points for determination are answered in negative.

13. Resultantly, the Consumer case fails.

14.        Hence , it is

                                                 ORDERED

15.    That the Consumer Case being no-372 of 2018 be and the same is dismissed on contest; however without any costs.

            Let copy of the judgment be supplied to both the parties free of cost.