State Consumer Disputes Redressal Commission
Siddarth Ultrasound And Colour Doppler ... vs Navneet Kaur on 12 May, 2017
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.211 of 2015
Date of Institution: 18.02.2015
Order Reserved on: 10.05.2017
Date of Decision : 12.05.2017
Siddarath Ultrasound & Colour Doppler Scan Centre, near Civil
Hospital, Opposite Government Girls Senior Secondary School,
Abohar, through its Dr. C.L. Bhargava, M.D. (Radio-Diagnosis).
.....Appellant/opposite party no.2
Versus
1. Navneet Kaur, aged 23 years, wife of Jalvinder Singh c/o Sher
Singh, Street no.2, Basant Nagar, Abohar, Tehsil Abohar,
District Fazilka.
.....Respondent no.1/complainant
2. Sai Hospital & Laparoscopic Surgery Centre, College Road,
Abohar, District Fazilka, through its Dr. Vinod Pal Sethi, MBBS,
MS (Gen. Surgery) Laparoscopic Surgeon & Dr. (Mrs.) Sarla
Sethi, MBBS, MS (Obst & Gynae) Obstetrician & Gynecologist
& Laparoscopic Gynae Surgeon.
3. United India Assurance Company Limited, Thana Road, Near
Sandeep Theatre, Abohar, District Fazilka, through its Branch
Manager.
4. New India Assurance Company Limited, Sunam Branch,
through its Branch Manager.
.....Performa respondents/opposite party nos.1,3&4
First Appeal against order dated
29.12.2014 passed by the District
Consumer Disputes Redressal Forum,
Ferozepur.
Quorum:-
Shri J. S. Klar, Presiding Judicial Member.
Smt. Surinder Pal Kaur, Member Present:-
For the appellant : Sh. Vaibhav Narang, Advocate For respondent no.1 : Sh. R.K. Manaise, Advocate For respondent no.2 : Sh. A.K. Batra, Advocate For respondent no.3 : Sh. Munish Goel, Advocate For respondent no.4 : Sh. Vishwajit Bedi, Advocate ............................................ First Appeal No.211 of 2015 2 J.S KLAR, PRESIDING JUDICIAL MEMBER :-
The appellant has directed this appeal against order dated 29.12.2014 of District Consumer Disputes Redressal Forum Ferozepur (in short the 'District Forum), vide which, the complaint of the complainant was accepted by directing OP no.2 to pay the sums of Rs.1,00,000/- as consolidated compensation for physical pain, mental harassment and financial loss as well as litigation expenses to the complainant, within a period of thirty days from the date of receipt of a copy of order. The appellant of this appeal is OP no.2 in the original complaint before the District Forum and respondent no.1 of this appeal is complainant and respondent nos.2-4 are OP nos.1,3 and 4 therein and they be referred as such hereinafter for the sake of convenience.
2. Complainant Navneet Kaur filed complaint U/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the OPs on the averments that she experienced some pain in her abdomen and approached OP no.1 hospital in this regard accompanied by her father Sher Singh. OP no.1 hospital has been run by Dr. Vinod Pal Sethi and Dr. Salra Sethi (husband and wife). Complainant was attended by Dr. Sarla Sethi on 17.08.2012 and she found her problem unrelated with Gyne. She was checked by Dr. Vinod Pal Sethi advising her for ultrasound test and other tests. OP no.2 conducted her ultrasound test on 17.08.2012, which is as under:
"Right Ov. An anechoic mass (cyst) of size of 34x25 mm"
Impression: right ovarian cyst with Ch. Cholecystitis. First Appeal No.211 of 2015 3 The complainant visited OP no.1 again with the report of ultrasound performed by OP no.2. Certain medications were prescribed to complainant by OP no.1. The complainant visited OP no.1 on 25.08.2012, 29.08.2012, 01.09.2012 and 03.09.2012 with regard her ailment which continued. OP no.1 advised for ultrasound test from OP no.2 to the complainant on 03.09.2012. Ultrasound test was conducted by OP no.2 on the complainant on 03.09.2012 with the below noted report:
"Right Ov. An anechoic mass (cyst) of size of 25x18mm"
Impression: right ovarian cyst with CH. Cholecystitis OP no.1 was shown the ultrasound report and it prescribed certain medications. Since, the complainant was not getting cured, hence OP no.1 advised her for another ultrasound test from OP no.2 on 22.10.2012, which gave the below noted result :
"Right kidney Echogenic mass with digital acoustic shadow of size 5x3mm in the middle pole Endo materiaum thickened it measures 8 mm Right ovary- Multiple anechoic masses (follicles) it measures 22x22mm Left ovary - Multiple anechoic masses (follicles) it measures 26x19mm Impression: Bilateral polycystic ovarian disease with right renal calculus"
All the three reports of ultrasound given by OP no.2 are 17.08.2012, 03.09.2012 and 22.10.2012, as referred to above have been giving different impressions at different time in a short duration. OP no.1 did First Appeal No.211 of 2015 4 not act fairly by referring complainant to OP no.2 for ultrasound test. The complainant at her own instance got another ultrasound test from Chaudhary Ultrasound Clinic, Sriganganagar on 24.10.2012, reporting that there was no problem of any kind, as already depicted in the ultrasound reports given by OP no.2. The complainant did not believe the report dated 24.10.2012 and went in for another ultrasound centres at Muktsar and Abohar for conducting her ultrasound. They gave the ultrasound reports totally consisting with the report given by Chaudhary Ultrasound Clinic, reporting no problem in the complainant. Even, if the two ultrasound report were different, OP no.1 Dr. Sarla Sethi should have given treatment, as the alleged problem reported in ultrasound reports by OP no.2 was of gyne problem. Any problem caused by an ovarian system was required to be dealt with by the gynecologist. The complainant got the fist ultrasound test from OP no.2 on the advice of OP no.1. The complainant reported to higher authority regarding medical negligence of OP no.2. The family of the complainant also suffered immensely on account careless ultrasound reports given by OP no.2. The complainant, thus, prayed that OPs be directed to pay Rs.1,90,000/- as compensation; and to pay Rs.10,000/- as litigation expenses.
3. Upon notice, OP no.1 filed separate written reply raising preliminary objections that complaint filed by the complainant is misconceived containing bundle of lies. No gross medical negligence or deficiency in service is involved in this case. The complainant visited OP no.1 hospital on 17.08.2012 complaining pain in her First Appeal No.211 of 2015 5 abdomen. She was attended upon by Dr. Sarla Sethi, gynecologist on 17.08.2012 and she found that problem of the complainant was not related to gynecology, as the pain was in upper part of abdomen. Dr. Vinod Pal Sethi, MBBS, MS, General Surgery (the treating doctor) examined her and her abdomen was soft without any tenderness. He diagnosed it to be a case of chronic cholecystitis. The complainant informed the treating doctor on 25.08.2012 with regard to slight improvement. She was advised for TTG blood test. On 29.08.2013, the complainant was asked to undergo the blood test in order to rule out the possibility of celiac disease. She visited again OP no.1 on 01.09.2012 complaining of acidity and was advised medication therefor. On 03.09.2012, she was advised to undergo ultrasound examination to find out the state of the gall bladder. Report was positive revealing that the gall bladder thickness was normal. Treating doctor prescribed some medicines to control her acidity. After 03.09.2012, the complainant lost follow up treatment and never reported to the treating doctor for further treatment. On merits, complaint was also contested by OP no.1. Patient complained pain in upper part of abdomen, which matched with ultrasound report i.e. "Gall bladder wall thickened, because of chronic cholecystitis", for which treatment was given. There was no occasion for another ultrasound test from any other ultrasound centre of complainant. USG report dated 03.09.2012 showed normal gall bladder, which clearly indicated that the patient responded to the treatment given by OP no.1 and hence OP no.1 prayed for dismissal of the complaint.
First Appeal No.211 of 2015 6
4. OP no.2 filed separate written reply by raising preliminary objections that complaint is not maintainable, as ultrasound report cannot be tampered with. The matter is complex in nature, which cannot be adjudicated in summary manner by the Consumer Forum. The complainant has not approached the Forum with clean hands. OP no.2 is well qualified doctor and has requisite experience of 16 years. It was further averred that on 17.08.2012, the complainant visited OP no.2 with regard to problem in her abdomen. Ultrasound test was conducted finding that "Right Ovarian cyst with Ch. Cholecystitis". There was follicle in her right ovary, which did not create any problem, as such like follicles creates in a month in the righ side of uterus of every lady and on the next month, the same are created on left side of her uterus. Such like follicles torn up in itself. On 03.09.2012, her ultrasound test was conducted by the answering OP. There was no swelling in her gallbladder and the size of the follicle was decreased to its half extent than on 22.10.2012. OP no.2 conducted ultrasound test carefully. Any deficiency in service or medical negligence was denied by OP no.2. The complaint was also contested on the above ground, even on merits by OP no.2 and OP no.2 prayed for dismissal of complaint.
5. OP no.3 the United India Insurance Company Limited filed its separate written reply. It also denied any medical negligence on the part of insured, to whom (OP no.2) the professional indemnity Dr.(other) policy has been issued. OP no.3 controverted the averments of complainant and prayed for dismissal of the complaint. First Appeal No.211 of 2015 7
6. OP no.4 filed its separate written stating that complaint is false, frivolous and vexatious. The complaint is not maintainable in the present form. The complainant has not approached the Forum with clean hands. No original insurance policy and other relevant documents have been supplied by the complainant or the other opposite parties nor is proved the privity of contract between OP no.4 and the other parties. It denied any deficiency in service on its part and prayed for dismissal of the complaint.
7. The complainant tendered in evidence affidavits and documents Ex.C-1 to C-22 and closed the evidence. As against it, OP no.1 tendered in evidence affidavit Ex.OP1/1 with documents Ex.OP1/2 to Ex.OP1/3 and closed the evidence. OP no.2 tendered in evidence affidavit and documents Ex.OP2/1 to Ex.OP2/22 and closed the evidence. OP no.3 tendered in evidence affidavit Ex.OP3/1 and closed the evidence. OP no.4 tendered in evidence affidavit and documents Ex.OP4/1 to Ex.OP4/3 and closed the evidence. On conclusion of the evidence and arguments, the District Forum accepted the complaint of the complainant, as referred to above. Aggrieved by above order, OP no.2, now appellant has directed this appeal against the same.
8. We have heard the learned counsel for the parties at considerable length and have also examined the record of the case. The findings of the District Forum holding appellant medically negligent and deficient in service by giving three different ultrasound reports has been assailed in this case by the appellant. This point has to be decided with the aid of evidence on the record by us. The First Appeal No.211 of 2015 8 complainant filed her affidavit ex.C-1 and additional affidavit Ex.C-2 stating that at advice of OP no.1, she got conducted her ultrasound test from OP no.2, now appellant on 17.08.2012. The impression of the report is as "Right Ov. An anechoic mass (cyst) of size of 34x25 mm. Impression: right ovarian cyst with Ch. Cholecystitis." This witness further deposited that her pain did not subside and on the asking of treating doctor OP no.1, she again got her ultrasound conducted from OP no.2 now appellant on 03.09.2012. The impression of the report is as "right ovarian cyst with CH. Cholecystitis". It has also appeared in her deposition that since there was no relief from pain, hence she again undergone ultrasound test from OP no.2 now appellant on the advice of treating doctor on 22.10.2012. The impression of the ultrasound report is as "Bilateral polycystic ovarian disease with right renal calculus" This witness has further deposed that despite treatment she felt no relief. She doubted the report of ultrasound and hence got her ultrasound test conducted from Chaudhary Ultrasound Clinic, Sriganganagar on 24.10.2012 and no abnormality was found in her ovary. No calculus was also found in her both kidneys. The report of Chaudhary Ultrasound clinic is Ex.C-10 on the record. It has also appeared in her statement that she got further ultrasound test conducted from Muktsar and abohar from different ultrasound centres and no abnormality was detected therein. The complainant was found normal including kidneys and gallbladder and uterus. This witness has termed OP no.2 as negligent in not conducting the ultrasound on three occasions correctly. Ex.C-4 is prescription slip issued by OP no.1 to First Appeal No.211 of 2015 9 complainant. The pathological report is Ex.C-5 on the report. Ultrasound report given by OP no.2 on 17.08.2012 is Ex.C-7. Ex.C-8 is the ultrasound report of complainant dated 03.09.2012 given by OP no.2. Ex.C-9 is the ultrasound report dated 22.10.2012 of complainant given by OP no.2. The ultrasound report of complainant given by Chaudhary Ultrasound clinic dated 24.10.2012 is Ex.C-10 on the record. Ultrasound report dated 09.11.2012 given by P.S. Bhandari Diagnostic centre is Ex.C-11 of complainant. Ex.C-12 is the ultrasound report of Civil Hospital Abohar. No abnormality is recorded in it. The complainant also filed complaint Ex.C-13 against OPs and matter was looked into by police, vide Ex.C-16 and statement of witnesses were recorded by police which are Ex.C-17 to C-19. Ex.C-20 is the legal notice sent to OPs. The version of OP no.2 now appellant is contained in his affidavit Ex.OP2/1. He has not admitted any medical negligence on his part in this case. He also relied upon his qualification Ex.OP2/2 to Ex.OP2/15 on the record.
9. The submission of counsel for appellant is based on medical literature that ovulation in humans alternates consistently from right to left ovary in successive cycles and whether the site of ovulation affects the next cycle length or the hormonal profiles. A total of 199 cycles in 80 normally fertile women were studied. The volunteers were monitored with ultrasonography to determine the day and side of ovulation and to calculate follicular and luteal phase lengths. Urinary hormone concentrations were also assayed. Right- sided ovulations occurred I n 104 of the 199 cycles (52.3%; not significantly different from 50%). Alternate ovulations occurred in 61 First Appeal No.211 of 2015 10 of the 119 pairs of succeeding cycles (51.3%, not significant). The follicular phase length in contralateral ovulation (14.59 +/- 0.33 days; mean +/- SEM) did not differ significantly from that of ipsilateral ovulation (14.59 +/-0.37 days). There were also no significant differences in urinary concentrations of oestrone-3-glucuronide, pregnanediol-3 alpha glucuronide, follicle stimulating hormone, and luteinizing hormone between ipsilateral and contralateral ovulation in either early follicular, peri-ovulatory or luteal phase of the cycle. It is concluded that in normally fertile women, the cycle length and the hormonal profile are independent of the, most probably random, site of ovulation. A ruptured ovarian cyst is a common phenomenon, with presentation ranging from no symptoms to symptoms mimicking an acute abdomen. Sequelae vary. Menstruating women have rupture of a follicular cyst every cycle, which is either asymptomatic or with mild transient pain (mittelschmerz). In less usual circumstances, the rupture can be associated with significant pain. In very rare circumstances, intraperitoneal hemorrhage and death may occur. The most pressing issues facing clinicians encountering patients with potential cyst rupture in the acute setting are to rule out ectopic pregnancy, ensure adequate pain control, and rapidly assess the patient for hemodynamic instability to allow appropriate triage. Although most patients require only observation, some need analgesics for pain control and laparoscopy of laparotomy for diagnosis or to achieve hemostasis. It has been further submitted by counsel for OP no.2 now appellant that for this reason, the life span of a follicular cyst is a self-limited one and surgical interference is First Appeal No.211 of 2015 11 very seldom indicated or jusitified. Follicular cysts are thin-walled and contain translucent colourless fluid. The submission of counsel for the appellant is that in view of above, no medical negligence is proved against the appellant.
10. Considering the submissions of appellant and counsel for the respondents in this appeal, we have come to this conclusion that in report Ex.C-7, OP no.2 now appellant recorded finding of right ovarian cyst with CH. Cholecystitis. Vide report Ex.C-8, impression is recorded as right ovarian cyst with CH. Cholecystitis. Vide report Ex.C-9 dated 22.10.2012, the impression is recorded as bilateral polycystic ovarian disease with right renal calculus. On the other hand, in the report of ultrasound given by Chaudhary Ultrasound Clinic, vide C-10 dated 24.10.2012, complainant was found normal. In another ultrasound report Ex.C-11 dated 09.11.2012 given by P.S. Bhandari Diagnostic Centre Sri Muktsar Sahib, the complainant was found normal. In ultrasound report given by Civil Hospital Abohar, no abnormality was detected. In view of reports Ex.C-10 to C-12, OP no.2 is found careless and has committed gross medical negligence in giving the above report Ex.C-7 to C-9 without caring for them. It seems that OP no.2 conducted tests in a perfunctory manner only. How, the above abnormality got evaporated subsequently in a jife, remained unexplained. On 22.10.2012, vide report Ex.C-9, OP no.2 found bilateral polycystic ovarian disease with right renal calculus. Vide ultrasound report dated 24.10.2012, which has been conducted only after two days from ultrasound report given by OP no.2 Ex.C-9, no such abnormality was detected therein. It is not credible to First Appeal No.211 of 2015 12 believe that the abnormality disappeared in the intervening day of 23.10.2012 only. No such medical literature has been cited by the appellant before us to prove this fact. Consequently, the District Forum has rightly recorded the finding holding OP no.2 now appellant grossly negligent in giving above three reports. We are in agreement with the findings of the District Forum on this point. On the point of quantum of compensation, we find that the District Forum has awarded appropriate compensation to the complainant in this case. We find no ground to reduce the amount of compensation awarded by the District Forum to the complainant for medical negligence committed by OP no.2. The order of the District Forum under challenge in this appeal is affirmed.
11. As a result of our above discussion, we find no merit in the appeal and same is hereby dismissed.
12. The appellant had deposited an amount of Rs.25,000/- in this Commission at the time of filing the appeal and further deposited the amount of Rs.25,000/- in compliance with order of this Commission. These amounts alongwith interest, which accrued thereon, if any, be remitted by the registry to respondent no.1 of this appeal, being complainant, by way of crossed cheque/demand draft after expiry of period of 45 days. Remaining amount shall be paid by OP no.2 to the complainant within 45 days from the date of receipt of certified copy of the order.
13. Arguments in this appeal were heard on 10.05.2017 and the order was reserved. Certified copies of the order be communicated to the parties as per rules.
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14. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (SURINDER PAL KAUR) MEMBER May 12, 2017 MM