State Consumer Disputes Redressal Commission
Harjinder Kaur vs Nijjar Scan & Diagnostic Centre on 4 May, 2022
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
First Appeal No.234 of 2019
Date of institution : 25.04.2019
Reserved on : 04.04.2022
Date of Decision : 04.05.2022
Mrs. Harjinder Kaur W/o S. Baldev Singh, R/o VPO Boparai, Tehsil
Patti, District Amritsar.
....Appellant/Complainant
Versus
1. Nijjar Scan & Diagnostic Centre, 51/1, Court Road, Opp.
Church, Near GPO Amritsar through its Managing
Director/Principle Officer/Prop./Partner.
2. Dr. Awdesh Pandey C/o Nijjar Scan & Diagnostic Centre, 51/1,
Court Road, Opp. Church, Near GPO, Amritsar.
3. Dr. Harleen Miglani C/o Nijjar Scan & Diagnostic Centre, 51/1,
Court Road, Opp. Church, Near GPO Amritsar.
4. New India Assurance Co. Ltd. 117, The Mall, Amritsar through
its Branch Manager.
5. National Insurance Co. Ltd. 20, Batala Road, Amritsar through
its Branch Manager.
6. United India Insurance Co. Ltd., 283, East Mohan Nagar,
Amritsar through its Branch Manager.
....Respondents/Opposite Parties
First Appeal against the order dated
25.02.2019 of the District Consumer
Disputes Redressal Forum (now
Commission), Amritsar.
Quorum:-
Hon'ble Mrs. Justice Daya Chaudhary, President
Mrs. Urvashi Agnihotri, Member
1) Whether Reporters of the Newspapers may be allowed to see the Judgment? Yes/No
2) To be referred to the Reporters or not? Yes/No
3) Whether judgment should be reported in the Digest? Yes/No First Appeal No.234 of 2019 2 Present:-
For the appellant : Sh.Akhilesh Vyas, Advocate For respondents No.1 to 3 : Sh.Sukhandeep Singh, Advocate For respondent No.4 : Sh.Parminder Singh, Advocate For respondent No.5 : Ms.Madhu Sharma, Advocate For respondent No.6 : Ms.Samo Devi, Advocate for Sh.Nitin Gupta, Advocate JUSTICE DAYA CHAUDHARY, PRESIDENT :
The instant appeal has been preferred by the appellant- complainant-Mrs. Harjinder Kaur to challenge the impugned order dated 25.02.2019 passed by the District Consumer Disputes Redressal Forum (now 'the Commission'), (hereinafter referred as 'the District Commission'), Amritsar whereby the complaint filed by her under Section 12 of the Consumer Protection Act, 1986 (in short '1986 Act') against the respondents/opposite parties (hereinafter referred as "OPs") has been dismissed.
2. It would be apposite to mention here that hereinafter the parties would be referred, as have been arrayed before the District Commission.
3. Relevant brief facts as made out in the Complaint which are necessary for the disposal of the present appeal are that the complainant was suffering from lower back pain and on medical advice, she approached/contacted OP No.1 for medical investigation, who claimed itself to be a well known Diagnostic Centre, where her complete whole body bone scan was conducted on 10.06.2013. On the basis of report, it was diagnosed to be case of Cancer in the bones. On seeing the said report, the complainant and her family members were shocked. Her health was deteriorated due to said First Appeal No.234 of 2019 3 diagnosis as it was the life threatening warning to her. Thereafter, the complainant consulted one specialized cancer Oncologist, Dr. Neeraj Jain, who advised her for further investigation CECT CHEST which was got conducted from OP No.3 and the report is reproduced as under:-
"IMPRESSION : CT findings reveal Multiple sclerotic lesions in some of the visualized thoracic vertebrae and sternum?
Metastases."
Said report dated 12.06.2013 was prepared by OP No.3, who confirmed that the complainant was suffering from Cancer. Thereafter, the complainant went to various medical specialists for treatment and finally she was referred to Premier Cancer Institute i.e. Rajiv Gandhi Cancer Institute and Research Centre, Delhi where she had to undergo several tests and investigations and on the basis of the same, it was found that the complainant was not suffering from Cancer as there was no evidence of malignancy in vertebrae as reported by OPs. It was clearly established beyond any reasonable doubt that the complainant was not suffering from Cancer.
4. It is further averred that due to wrong reports given by the OPs, the complainant and her family members faced mental trauma, shock, pain, agony, physical sufferings as well as harassment and also suffered financial loss of Rs.3,00,000/- as they had to run from pillar to post for conducting various investigations, medical advises and getting the specialized treatment. The act of the OPs by giving wrong reports dated 10.06.2013 and 12.06.2013 amounts to case of 'deficiency in service', 'unfair trade practice', medical negligence, First Appeal No.234 of 2019 4 unethical and unprofessional conduct, which has resulted into mental trauma, shock, pain, agony, physical sufferings and harassment to the complainant. On said grounds, the complainant has filed the complaint before the District Commission with the prayer to direct the OPs to pay compensation of Rs.19,50,000/- alongwith litigation charges.
5. Upon notice, opposite parties appeared and contested the complaint by filing their respective separate written replies. OP No.1 in its reply has narrated the sequence of events of the complainant's treatment. It was further pleaded that there was no negligence on the part of OP No.2 while conducting the investigation and by giving report thereof the role of OP No.1 and OP No.2 was as per agreement dated 15.09.2005. As per the Nuclear Medicine & Scanning Centre, the whole body scan of the complainant was done by OP No.2 which was being run by OP No.2 under the aegis of "Indian Institute of Nuclear & Scanning". It was further mentioned that there was no negligence on the part of OP No.3 while conducting the investigation of CECT CHEST and by giving its report. It was further pleaded that the complainant-Harjinder Kaur came to OP No.1-Centre on 11.05.2013 for MRI of abdomen on referral of Dr. Karam Singh Memorial Hospital and findings of the report are as under:-
"IMPRESSION : MRI findings reveal
- Small well defined lesion in segment 4a of left lobe of liver
- Suggestive of haemangioma.
- III-defined lesions in some of the vertebrae, left femoral head and greater trochanter. Advised bone scan for further characterization.First Appeal No.234 of 2019 5
- To be correlated clinically."
It is further pleaded that the complainant (patient) was again referred to OP No.3 on 10.06.2013 by Dr. Gurvinder Singh of Hargun Hospital for Bone Scan. Her Whole Body Bone Scan i.e. Skeletal Scintigraphy was done by injecting with 20mCi of 99mTe-MDP intravenously and scintigraphs were taken after three hours of injection. Said Report is reproduced as under:
"IMPRESSION : Scan features suggestive of :
Multiple Skeletal Metastasis" ) Again on 12.06.2013, the complainant (patient) was referred to OP No.1 by Dr. Neeraj Jain for Mammography and CECT Chest with a clinical diagnosis of bone metastasis "unknown primary". OP No.3 gave its finding as Multiple Sclerotic Lesions in some of the Visualized Thoracic Vertebrae and Sternum? Metastasis. By considering the multiplicity of lesions and age of the patient, suspicion of metastasis was given in the best interest of the patient and advised clinical correlation. The complainant's report dated 11.07.2013 given by Rajiv Gandhi Cancer Institute which reflected that a CT-guided biopsy one from L5 vertebral lesion clearly indicated that some suspicious lesion in the lumber CT must have been observed by the concerned clinician or radiologist for which histopathology was sought to confirm/rule out malignancy. The whole body skeletal report dated 20.07.2013 was not as sensitive as CT/MRI or Bone Scan modalities in picking up the lesions. The report of Whole Body Scan dated 10.06.2013 as well as CECT Chest dated 12.06.2013 were given by their scribes according to the picture seen and interpreted during the First Appeal No.234 of 2019 6 course of said investigations as well as on the basis of scientific evidence. These investigation reports were of suggestive nature of the treating clinician, which were for the purpose of evaluation of the whole area under probe. Thus, the clinician was to correlate the findings of these two reports as per actual condition of the patient and then suggested for the further investigation, such as, biopsy (examination of the tissue in actual under microscope) from the representative area for confirming or ruling out the suggested pathology from the images seen under the scans. Every scan was having some percentage of error due to various multifarious reasons, which could be due to notorious nature of the disease entity, condition and stage of the disease at the time of investigation, as no investigation was having 100% sensitivity and specificity. OP No.1 denied the allegations contained in the complaint, except those one, which are specifically admitted.
6. Certain preliminary objections were also raised that complaint was a gross abuse of the process of law and the complainant had not approached the District Commission with clean hands. Neither any evidence nor any negligence to show deficiency on the part of OP No.1 was produced. No cause of action accrued to the complainant against the OPs to file the complaint. It was also bad for mis-joinder and non-joinder of necessary parties and the complaint involved complex and complicated questions of facts, therefore, it was not liable to be tried through summary procedure. As no specific allegation was levelled against OP No.1 and the complainant was not entitled for any relief.
First Appeal No.234 of 2019 7
7. On merits also the same stand has been reiterated. It has also been pleaded that neither there was any deficiency in service nor negligence on the part of OP No.1, hence, the complaint was liable to be dismissed.
8. OPs No.2&3 have taken the same stand as mentioned in the reply of OP No.1 and all the allegations levelled against them have been denied.
9. OP No.4 has admitted that OP No.1 obtained some Professional Indemnity Doctors Policy from it. It was pleaded that neither the original insurance policy with terms and conditions was placed on the record nor the same was supplied to it. It is further pleaded that the District Commission has not fixed any direct liability on the part of OP No.4 and to determine liability against OP No.1, it was to be considered by the competent authority of OP No.4 as per the terms and conditions of the policy. Complainant besides impleading said OP should have also impleaded National Insurance Co. Ltd. and United India Ins. Co. Ltd. as party. It is not clear as to which Insurance Company insured which hospital or doctor, so in these circumstances, this OP is unable to file any effective written statement. Dismissal of the complaint with costs was prayed for. Similar objections and stand were taken by OPs No.5 & 6 in their written statements.
10. After being afforded opportunity by the District Commission to lead their evidence, parties tendered their evidence in support of their pleadings.
First Appeal No.234 of 2019 8
11. The District Commission by considering the pleadings and evidence, hearing the learned counsel for the parties, dismissed the complaint vide impugned order dated 25.02.2019 by observing that the complainant had not been able to establish any medical negligence or deficiency in service on the part of OPs.
12. Aggrieved by the findings recorded by the District Commission, the complainant has filed the present appeal, challenging the impugned order dated 25.02.2019 mainly on the grounds that OPs No.1 to 3 have given wrong reports, due to which the complainant alongwith her family suffered a lot of mental trauma. It is a clear-cut case of wrong reporting while issuing the reports. The Doctors did not follow the principle of standard care. No evidence has been brought on record as to why these wrong reports were issued by them. It has been proved on record that wrong reports were given by OPs No.1 to 3 showing that the complainant was suffering from cancer in bones and this act shows that OPs No. 1 to 3 were casual while issuing such wrong reports. In the cross examination before the District Commission, both OPs No.1 & 2 have admitted that they diagnosed metastasis which in common parlance is cancer and they did not advise for further investigation, which shows the admission on the part of OPs No.1&2 regarding wrong reports. There was discrepancy between the PET scan on the part of OP No.1 and bone scan at Rajiv Gandhi Cancer Institute, which led to various invasive diagnostic procedures for which the complainant had to suffer which resulted into bleedings, nerve injury, hematoma and so on. Prior high risk consent was required to be obtained from the complainant for First Appeal No.234 of 2019 9 such procedures. The negligence of OPs No. 1 to 3 has been fully proved on record.
13. The complainant has prayed for setting aside of the impugned order passed by the District Commission. Learned counsel for the appellant has relied upon certain judgments in the written arguments, which are as under:
(i) "Manjunatha Pathology Laboratory and Another vs. Meenakshi", 2008 (57) RCR (Civil) 275;
(ii) "Nehra (Dr.) Vs. Shalini Vij and Ors.", 2008 (53) RCR (Civil) 221;
(iii) R.P. Gupta (Dr.) Versus Anurag and ors., 2014 (80) R.C.R. (Civil) 8;
(iv) Dr. Sanjay J. Batra Vs. Jagrut Nagrik & Ors. 2016(2) CLT
544.
14. As per written submissions/arguments of respondents No.1 to 3, the reports of whole body bone scan dated 10.06.2013 as well as CECT Chest dated 12.06.2013 were given by their scribes by seeing and interpreting the picture during the course of said investigations on the basis of scientific evidence. These reports were of suggestive nature to the treating clinician, which were for the purpose of evaluation of the whole area under probe of the said investigation. Thus, the clinician was to correlate the findings of these two reports as per actual condition of the patient and then suggested for further investigation, such as biopsy from the representative area for confirming or ruling out the suggested pathology from the images seen under the scans. Every scan is having some percentage of error First Appeal No.234 of 2019 10 due to various multifarious reasons, which could be due to notorious nature of the disease entity, to the condition and stage of the disease at the time of investigation, as no investigation is having 100% specificity. The said reports were suggestive in nature, which were to be correlated by the treating clinician. It is also mentioned that CECT report dated 12.06.2013 was also as per the images seen during the said scan, sciagrams of which have been concealed by the purported complainant with malafide intention.
15. Complainant has neither led any evidence to show that there was any negligence nor proved any deficiency or delay in service at the hands of OPs No.1 to 3 during the course of investigation of the patient. Complainant has also not mentioned as to in what manner OPs No.1 to 3 were negligent while conducting investigation. No expert opinion was filed by the complainant that the investigation report was not proper. The allegations of negligence levelled against the doctor, who conducted the investigation, are not tenable. The complainant has deliberately concealed complete treatment record of Rajiv Gandhi Cancer Institute and Research Centre and even sciagrams/films of the investigations under challenge. It is established from the record of Rajiv Gandhi Cancer Institute and Research Centre that the reports given by OPs No.2&3 are as per the condition seen by them during the course of relevant investigations of the patient. There is no such negligence on their part and appeal be dismissed.
16. Respondent No.4 in its written arguments has stated that Professional Indemnity Insurance (Medical Establishment) Policy First Appeal No.234 of 2019 11 bearing No.36050136120200000016 was valid from 20.07.2012 to 19.07.2013 and indemnity limit for the same is Rs.30,00,000/- for one accident only during the policy period and liability of this respondent would be governed by the terms and conditions of the policy. Respondents No.5 & 6 have adopted the written arguments filed by the insurer-OPs.
17. Heard the arguments of the learned counsel for the parties. We have also carefully gone through the written arguments submitted by the parties and other documents available on the record.
18. Complainant-Smt. Harjinder Kaur was suffering from lower back pain and under the medical advice of Dr. Gurvinder Singh, Hargun Hospital, she contacted OPs. OP No.1 who claimed itself to be a Diagnostic Centre where her whole body bone scan was conducted on 10.06.2013. OPs No.1&2 informed that she was diagnostic with Cancer in bones. Again on 12.06.2013, the patient was referred to OP No.1 for X-ray Mammography and CECT chest with clinical diagnosis of bone metastasis by Dr. Neeraj Jain, who confirmed that the complainant was suffering from the Cancer. Thereafter, the appellant/complainant was referred to Rajiv Gandhi Cancer Institute and Research Centre and vide report dated 18.07.2013 of the Radiology Department of the said institute, wherein it was confirmed that the visualized bones appeared to be normal and no sclerotic/lytic lesion was seen in the report. The complainant challenged the wrong reports and negligent acts of OPs No. 1 to 3 before the District Commission by way of filing complaint but the First Appeal No.234 of 2019 12 District Commission dismissed the complaint vide impugned order dated 25.02.2019. Said order passed by the District Commission has been challenged before this Commission in the appeal.
19. After considering the submissions made by learned counsel for the parties and on perusal of documents/evidence available on the file, admittedly the report dated 11.07.2013 of Rajiv Gandhi Cancer Institute and Research Centre has clearly reflected that the CT Guided Biopsy was done from L5 Vertebral Lesion, which has indicated that some suspicious lesion in the Lumber CT was observed by the concerned Clinician or Radiologist. Histopathology was sought to be confirmed to rule out malignancy. The reports of Whole Body Scan dated 10.06.2013 as well as CECT Chest dated 12.06.2013 were prepared according to the picture reflected in the scan machine/monitor. Said investigations based on scientific method were stated to be suggestive. As per medical record of Rajiv Gandhi Cancer Institute and Research Centre, the patient was in touch even after Biopsy. The investigations reports were of suggestive nature to the treating Clinician, which were for the purpose of evaluation of the whole area under investigation. By considering the said facts, a detailed finding was recorded by the District Commission. Thereafter, it was held to be a case of 'medical negligence'. It was required to be proved that the doctor was negligent or he/she has not provided the treatment in a reasonably skilful and competent manner or the doctor's negligence caused actual injury to the patient. Meaning thereby, in case of 'medical negligence', all these factors are required to be considered. In the present case, simply allegations of First Appeal No.234 of 2019 13 'medical negligence' have been levelled. The onus was on the appellant/complainant to prove that there was negligence on the part of the respondents/opposite parties but the appellant/complainant has not been able to prove such allegations. Meaning thereby, the burden to prove the allegations of 'medical negligence' is always on the complainant but she failed to prove the same.
20. In the present case, the appellant/complainant has not been able to prove any such allegations of 'medical negligence' or 'deficiency in service' against the respondents/opposite parties. Nothing has been brought to our notice as to what evidence is there to make out a case of medical negligence. Simply, averments are not sufficient to prove the allegations of 'medical negligence' but cogent and convincing evidence is required to be proved. The District Commission has recorded detailed findings by citing certain judgments of the Hon'ble Supreme Court as well as Hon'ble National Commission.
21. We are not impressed with the arguments raised by learned counsel for the appellant/complainant, as to how the findings recorded by the District Commission are contrary to evidence and how the evidence produced by the appellant/complainant has not been appreciated properly by the District Commission. The judgments relied upon by the counsel for the appellant/complainant are also not applicable to the facts and circumstances of the present case.
First Appeal No.234 of 2019 14
22. There is no illegality or infirmity in the findings recorded by the District Commission and the appeal being devoid of any merit is hereby dismissed.
23. The appeal could not be decided within the statutory period due to heavy pendency of court cases and pandemic of COVID-19.
(JUSTICE DAYA CHAUDHARY) PRESIDENT (URVASHI AGNIHOTRI) MEMBER May 04, 2022.
as/Gurmeet S