State Consumer Disputes Redressal Commission
Dr. Vinay Gupta vs Karamjit Kaur on 2 December, 2015
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
First Appeal No. 318 of 2014
Date of institution: 26.3.2014
Date of Decision: 2.12.2015
Dr. Vinay Gupta c/o Dr. Vinay's Scanign Centre, The Coral, 12, Guru Ravi
Dass Nagar, Near Mangro Chowk, Jalandhar City.
Appellant/OP
Versus
Ms. Karamjit Kaur wife of Sh. Manminder Singh, resident of H. No. 9, Atwal
Colony, Cantt. Road, Jalandhar.
Respondent/Complainant
First Appeal against the order dated 20.2.2014
passed by the District Consumer Disputes
Redressal Forum, Jalandhar.
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member
Shri Jasbir Singh Gill, Member
Mrs. Surinder Pal Kaur, Member
Present:-
For appellant : Sh. Puneet Sharma, Advocate
For the respondent : Ex.-parte.
Gurcharan Singh Saran, Presiding Judicial Member
ORDER
Appellant/Op(hereinafter referred as "Op") has filed the present appeal against the order dated 20.2.2014 passed by the District Consumer Disputes Redressal Forum, Jalandhar(hereinafter First Appeal No. 318 of 2014 2 referred as the District Forum) in consumer complaint No.36 dated 24.1.2013 vide which the complaint filed by respondent/complainant(hereinafter referred as complainant) was allowed with the direction to Op to pay a sum of Rs. 20,000/- in lumpsum as compensation to complainant. The amount be paid within a period of one month, failing which it will carry interest @ 9% p.a. after the expiry of the said period.
2. A complaint was filed by complainant under the Consumer Protection Act, 1986 (in short 'the Act') against OP stating that she had visited the scanning centre of Op, who is one of the renowned scanning centre of Op at Jalandhar. Complainant had problem in the abdomen and had come to Op for scanning of the stomach to know the exact problem and paid a fee of Rs. 1,000/-, which was done and Op gave the report "Small Submucous Fibroid Uterus" i.e. in common terminology unwanted growth in the uterus and she was also suggested to undergo surgery because there is no other way to cure it. Believing the advice of Op, complainant was to go for surgery, which was not at all necessary but due to the grace of God and advice of her husband, complainant had gone for second opinion and it was reported by the other Diagnosis Consultants that there was no unwanted growth as reported by Op. Due to wrong report and advice, complainant suffered a lot of pain, agony and harassment, which amounted to gross negligence on the part of Op. Complainant issued a legal notice through his counsel and false reply was given by Op on wrong facts. Hence, the complaint with a direction to Op to pay a sum of Rs. 50,000/- as damages towards First Appeal No. 318 of 2014 3 mental harassment, pain and agony, Rs. 10,000/- as fine and Rs. 1,000/- as fee paid for scanning and Rs. 22,000/- as litigation expenses.
3. The complaint was contested by Op, who filed reply taking preliminary objections that the complaint filed by complainant was false and frivolous and he had suppressed the material facts; complainant was estopped by her own act and conduct to file this complaint; no cause of action had accrued to complainant to file this complaint. All the three scanning reports were not different. The other two reports of diagnostic centres were taken on different modes. On merits, it was submitted that Op No. 1 is a renowned scanning centre of City, equipped with fully automatic technology and stringent quality control over the diagnostic services. Complainant had come to Op with chief/pre-dominant pain in stomach and desired for Ultra Sound scan. Trans abdominal scan of complainant was done, which revealed that uterus was anteverted normal in size. Normal central echo was present. Endometrium was thick upto 7.00 mm. No gestational sack/POC was seen. Small hypo to isoechoic mass of 20*20mm was seen in the anterior uterine wall in submucous location distorting endometrial lining. Accordingly, it was reported submucous fibroid uterus scan of the patient. It was further submitted that all the three scans i.e. scanning of Op and scan done by Dr. Mann Scanning and Diagnostic Centre and Shree Scan Centre were different to the extent of interpretation of Pathological spot. Otherwise, they are in consonance with each other. Even if for the sake of arguments, it is presumed that the report of Op was incorrect, in that eventuality, Ultra First Appeal No. 318 of 2014 4 Sound done by Shree Scan and Dr. Mann Scanning and Diagnostic Centre are also different. According to the medical journal, submucous fibroid causes pain i.e. uterus thinking fibroid as foreign body and tries to expel it out by contracting. Quite possible fibroid would have been expelled and lateron showed as blood clot in the cavity. Otherwise the scan done by Op and other diagnostic centres were on different mode. Op had done TAS scan whereas other two centres had done trans vaginal scan (TVS) whereas medical literature says that only in similar mode scan can be compared. It was denied that Op had recommended to complainant to undergo any surgery. The report of Op clearly pointed out in bold letters "Clinical Co-relation", therefore, there was no reason or occasion to advise surgery to complainant because it was not the job of Op. It was for the surgeon to recommend for surgery or not. The allegations levelled by complainant were false. No merit in the complaint and it be dismissed.
4. The parties were allowed by the learned District Forum to lead their evidence.
5. In support of his allegations, complainant had tendered into evidence her affidavit Ex. C-A, ultrasound report Ex. C-1, Shree diagnostics report Ex. C-2, Mann scanning report Ex. C-3, legal notice Ex. C-4, postal receipt Ex. C-5, reply to legal notice Ex. C-6. On the other hand, Op had tendered into evidence affidavit of Dr. Vinay Gupta Ex. O-A, affidavit of Dr. Monica Chopra Ex. O-2, affidavit of Dr. Manjula Singhal Ex. O-4, medical literature Ex. O-5, affidavit of First Appeal No. 318 of 2014 5 Dr. Monica Chopra Ex. O-3/A, affidavit of Dr. Manjula Singhal Ex. O- 4/A.
6. After going through the allegations in the complaint, written reply filed by OP, evidence and documents brought on the record, the complaint was allowed on the plea that the Ultrasound conducted by Op "Small Submucous Fibroid Uterus" was shown whereas it was not shown in the other diagnostic centres in their reports Exs. C-2 & C-3, therefore, apparently, the report given by Op was incorrect on the basis of wrong report, the complaint was allowed as referred above.
7. Aggrieved with the order passed by the learned District Forum, appellant/OP has filed the present appeal.
8. We have heard the learned counsel for appellant and had carefully gone through the record of the District Forum.
9. In the appeal it has been contended by the counsel for Op that the respondent/complainant had reported to his diagnostic centre for scanning of the abdomen, which was done and his report is Ex. C-1 and impression was taken as under:-
"Small Submucous Fibroid Uterus. Clinical correlation is advised."
Complainant had paid Rs. 1,000/- to Op. However, complainant had gone for alternative report. She got a scanning report from Shree Diagnostics Centre Ex. C-2 in which the impression was as under:-
"Thickened Endometrium ?PCOD Advised Further Study to Corelate." First Appeal No. 318 of 2014 6
She had also got the report from Mann Scanning & Diagnostic Centre Ex. C-3 in which the impression was as under:-
"Uterine cavity findings need clinical correlation as presence of blood clots is there."
The complaint of complainant was allowed by the District Forum on the ground that the report of Op "Submucous Fibroid Uterus" was wrong as this impression was not in the Ultrasound conducted by Shree Diagnostics Centre and Mann Scanning & Diagnostic Centre. It has been alleged that the report of Op was incorrect. However, it is to be mentioned here that the test conducted by Op was TAS whereas the test conducted by Shree Diagnostics and Mann Scanning & Diagnostic Centre were TVS is clear from the reports, therefore, TVS scan cannot be compared with TAS scan as there will be some difference between two. In the report of Op, "Endometrium was thick upto 7.0mm whereas in the report of Shree Diagnostics Ex. C-2, it is 8mm whereas no such measurement was given in the report of Mann Scanning Centre.
10. The allegations of complainant are that if she had not consulted her husband or the other Diagnostic Centres then she would have gone for surgery for removal of "submucous fibroid uterus" but it was good luck for her that she sought an alternative opinion and was saved from the surgery. However, it is pertinent to mention here that in the reports given by Op, it was mentioned "clinical correlation is advised", therefore, complainant was not to go for surgery on the basis of this report. This report was subject to clinical correlation. Moreover, it was not Op to advise for surgery. She First Appeal No. 318 of 2014 7 was advised for scanning due to pain in the abdomen and accordingly, she had gone for ultrasound. Accordingly, the report was to be shown to the concerned Doctor, who was to advise for surgery, if any. Submucous Fibroid Uterus means "foreign body present in the uterus and uterus tries to expel it". It has been further stated by the counsel for the Ops that 'Submucosal fibroids are generally better visualised by transvaginal ultrasound and can still post a diagnostic dilemma in differentiating these intracavitary lesions from endometrial polyps.' With regard to the management, treatment is required, if symptomatic as long as other causes of pelvic masses and abnormal bleeding has been excluded. Surgery is indicated only when there is excessively enlarged uterine size and pressure symptoms are present. Therefore, management of the surgery was not to be taken only on the basis of Ultrasound report because it was to be co-related alongwith other facts before going for surgery. He has further contended that it is only an opinion and in case the surgery was to be conducted, it was to be correlated clinically and no surgery was conducted, therefore, there was no question of any case of medical negligence. The preposition of medical negligence has been observed in "Bolam v Friern Hospital Management Committee", (1957) 2 ALL ELR 118, which was accepted by the Hon'ble Supreme Court as laying down correct tests in cases of medical negligence, in which it was observed that negligence in law means failure to do some act which a reasonable man in the circumstances would do, or the doing of some act which a reasonable man in the circumstances would not do. It was further held that Doctor is not guilty of negligence First Appeal No. 318 of 2014 8 if he acted in accordance with practice accepted as proper by responsible body of medical man skill in a particular art." Further it was observed by the Hon'ble Supreme Court in "Kusum Sharma & Others versus Batra Hospital & Medical Research Centre & Others", 2010 (3) SCC 480 that 'in case the Doctors have attended the patient with utmost care, caution and skills and with devotion and dedication then the Doctor, who performed Operation had reasonable decree of skill and knowledge and adopted the procedure which in their opinion as in the best interest of the patient then the Doctor cannot be held responsible for negligence.' It was also observed that 'mere deviation from normal professional practice is not necessarily evidence of negligence - Higher the acuteness in emergency and higher the complication, more are the chances of error of judgment - Doctors in complicated cases take chance even if the rate of survival is low. - To prosecute a medical professional for negligence under criminal law it must be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do. - The negligence must be culpable or gross and not the negligence merely based upon an error of judgment; 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 First Appeal No. 318 of 2014 9 competent practitioner in his field and that Medical professional 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.'
11. In this case, Op has done only the test. Even if there is some slight different, it could be error of judgment and error of judgment cannot be termed as a case of medical negligence. In support of this contention, Op has also placed on the record, the affidavit of Dr. Monica Chopra, working as Radiologist in Civil Hospital, Jalandhar, who has stated that "small sub mucous fibroid"
was seen in the scanning report is correct and there can be no negligence and then there is an affidavit of Dr. Manjula Singhal, who is M.D. Gynaecology working as Consultant Gynaecologist at M.M. Hospital, Lamba Pind Chowk, Jalandhar, who is submitted that "sub mucousal fibroid" causes pain and carmps and uterus thinks fibroids as foreign body and tries to expel it out by contracting through cervix".
Against this evidence, there is no evidence of complainant, how it is case of medical negligence. It is just an opinion, which was to be co- related with clinical test, therefore, if there is slight difference between one report with other reports, it is because of procedure because Op did it under 'TAS' whereas reports of other two scanning centres were under 'TVS'. At the most, it can be error of judgment and error of judgment cannot be a case of medical negligence, therefore, we are of Opinion that the learned District Forum has not properly appreciated the evidence on the record and had wrongly allowed the First Appeal No. 318 of 2014 10 complaint. The order is not sustainable in the eyes of law and is liable to be set-aside.
12. In view of the above discussion, the appeal filed by appellant is accepted. The order of the learned District Forum is set- aside, consequently, the complaint of complainant is dismissed being without any merit.
13. Appellant had deposited an amount of Rs. 10,000/- with this Commission in the appeal. This amount with interest accrued thereon, if any, be remitted by the registry to appellant by way of a crossed cheque/demand draft after the expiry of 45 days, from the despatch of the order to the parties; subject to stay, if any, by the higher Fora/Court.
14. The arguments in this appeal were heard on 17.11.2015 and the order was reserved. Now the order be communicated to the parties as per rules.
15. The appeal could not be decided within the statutory period due to heavy pendency of Court cases.
(Gurcharan Singh Saran) Presiding Judicial Member (Jasbir Singh Gill) Member December 2, 2015. (Surinder Pal Kaur) as Member