BEFPRE THE CONSUMER DISPUTES REDRESSAL COMMISSION, RAJASTHAN, JAIPUR.


APPEAL NO: 1803/2005


Preetam Kumar

r/o Bijarania wali Dhani,

Teh. & Distt. Hanumangarh.


Complainant- appellant


Vs.


Dr. B.D.Gupta

through Lalgadia Ultrasound Centre,

Opp. Agarwal Dharmshala,

Hanumangarh Town, Distt. Hanumangarh.


Opposite party-respondent


Date of judgment 20.5.09


Before:


Mr.Justice Sunil Kumar Garg-President

Mr.Sikandar Punjabi- Member


Mr.Karamveer counsel for the appellant

Mr.Jitendra Mitruka counsel for the respondent


JUDGMENT

BY THE STATE COMMISSION ( PER HON. MR.JUSTICE SUNIL KUMAR GARG, PRESIDENT)

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This appeal has been filed by the complainant appellant against majority order dated 7.10.05 passed by the members of the District Forum, Hanumangarh in complaint no. 153/04 by which the complaint of the complainant appellant was dismissed while the President of the District Forum had allowed the complaint in the manner that the respondent doctor was found guilty of committing deficiency in service in giving wrong report and for that he was ordered to pay a sum of Rs.7500/- as amount incurred in getting the treatment and further to pay a sum of Rs. 1 lac as amount of compensation for mental agony.


2. It arises in the following circumstances-


That the complainant appellant had filed a complaint against the respondent before the District Forum, Hanumangarh on 8.9.04 inter alia stating that on 4.4.04 he felt some trouble in stomach and he had consulted Dr. Deepak Saini and from his treatment he got some relief. It was further stated in the complaint that on 8.4.04 he again consulted Dr. Deepak Saini who advised him for ultrasound for which he went to the respondent on 8.4.04 and after paying a sum of Rs.250/- ultrasound in respect of abdomen was got conducted by the respondent doctor and he gave his report on 8.4.04 and in respect of gal bladder following observations were made-


" Impression - Changes in UB is S/O Vesical calculous."


It was further stated in the complaint that since in that report stones in gal bladder were found, therefore, he again consulted Dr. Deepak Saini who advise him for surgery and

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since on 19.4.04 he again felt severe pain and since Dr. Deepak Saini was the government doctor in the Mahatma Gandhi Memorial Govt. Hospital, Hanumangarh Town , therefore, the deceased was admitted in that hospital on 18.4.04 and operation was got done on 19.4.04 and was discharged on 26.4.04 and since during operation Dr. Saini found no stone in the gal bladder, therefore as per case of the complainant appellant the respondent doctor was guilty of giving the wrong ultrasound report in which he had stated that there were stones in the gal bladder of the complainant and for that medical negligence should be found established against respondent doctor. It was further stated in the complaint that as soon as the complainant appellant was discharged from the Govt. Hospital, Hanumangarh on 26.4.04, he went to Jaipur and when the sonography of the stomach was again got done from Kiran Diagnostic Centre, Jaipur on 27.4.04 even no stones were found and therefore, the report given by the respondent doctor on 8.4.04 was a wrong report and for that deficiency the present complaint was filed by the complainant claiming Rs. 3 lacs.


A reply was filed by the respondent doctor on 4.1.05 and in the reply it was stated that he had done the ultrasound of the stomach of the complainant as the case was referred by Dr. Deepak Saini. It was further stated in the reply that he had given the correct report on the basis of the film and the photographs of the film has been produced. It was further stated in the reply that there were some impressions of white colour in the film and taken into consideration that they might be due to some sludge muddy material, therefore, report which was given by the

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respondent was correct report and if during operation no stones were found by Dr. Deepak Saini, it did not mean that the report dated 8.4.04 was wrong one as from the operation notes it is very much clear that some gritty sensation were there, therefore, from that point of view it could not be said that the report was wrong one. It was further stated in the reply that since thereafter the complainant was got admitted in the SMS Hospital, Jaipur on 27.4.04 and had remained in the hospital upto 1.5.04 and operation of Cystoscopy was done on 29.4.04 and since from the record of the SMS Hospital, Jaipur it was also clear that some material like Amorphous was found, that was identical with stone, therefore, from that point of view also it could not be said that the report which was given by the respondent doctor on 8.4.04 was wrong one. Hence it was prayed that complaint be dismissed.


After hearing the parties, the President of the District Forum, Hanumangarh through impugned order dated 7.10.05 had allowed the complaint of the complainant as stated above inter alia holding that the report of ultrasound given by the respondent was wrong and there was medical negligence on the part of the respondent while the both members of the District Forum had dismissed the complaint through separate judgment inter alia holding that that there was no medical negligence on the part of the respondent doctor and consequently the complaint was dismissed.


Aggrieved from the majority order dated 7.10.05 given by both members of the District Forum,Hanumangarh, this appeal has been filed by the complainant appellant.


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3. In this appeal the main contention of the learned counsel for the complainant appellant is that the findings recorded by the members of the District Forum by which complaint was dismissed were wrong one as the respondent had clearly mentioned in sonography report dated 8.4.04 that there were stones in the gal bladder of the complainant while from Dr. Deepak Saini's operation notes it is very much clear that there were no stones in the gal bladder. Thus, the sonography report given by the respondent doctor on 8.4.04 could be treated as wrong report and further since in the report dated 27.4.04 prepared by Kiran Diagnostic Centre, Jaipur, no stones were found, therefore, from that point of view also the report dated 8.4.04 given by the respondent doctor should be treated as false one and the members of the District Forum had committed serious error and illegality in dismissing the claim of the complainant appellant and it was prayed that majority order suffers from basic infirmity, illegality and perversity and liable to be quashed and set aside and appeal be allowed and the order passed by the President of the District Forum be upheld.

4. On the other hand, the learned counsel appearing for the respondent has supported the majority order of the District Forum.


5. We have heard the learned counsel for the appellant as well as for the respondent and gone through the entire materials available on record.


6. There is no dispute on the point that the complainant appellant had gone for treatment on 8.4.04 and as per advice

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given by Dr. Deepak Saini, who was surgeon in the Govt. Hospital, Hanumangarh, sonography of complainant appellant was got done by respondent doctor on 8.4.04 in his Lalgarhia Ultrasound Centre where the following opinion was given-


" Impression- Changes in UB is S/O Vesical calculous."


7. There is no dispute on the point that the complainant did not felt relief in his stomach, therefore, he again consulted Dr. Deepak Saini and as per discharge ticket of the Mahatma Gandhi Govt. Hospital, Hanumangarh, it clearly appears that the deceased was admitted in the hospital on 18.4.04 and was discharged on 26.4.04 and operation was done on 19.4.04 and a bare perusal of the operative notes reveals following things-


(i) Bladder opened

(ii) Stone could not found but gritty sensation was there.


8. There is no dispute on the point that even after getting the treatment from Dr. Deepak Saini at Hanumangarh, the complainant did not feel cure himself and had gone to Jaipur where sonography was again got done from Kiran Diagnostic Centre, Jaipur on 27.4.04 and in that sonography report there is a mention of the fact that from the report of x-ray of kidneys, ureter and bladder the opinion which was given was Calculus but before it there was ?, though for Gal Bladder the following opinion was given-


"U. BLADDER - IS NORMAL IN SIZE SHAPE AND CAPACITY.

CATHETER SEEN IN SITU.'

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9. There is no dispute on the point that the complainant was admitted in the Deptt. of Urology of the SMS Hospital, Jaipur on 27.4.04 and discharged on 1.5.04 and operation of Cystoscopy was done on 29.4.04 and as per the findings of the operation notes, it is very much clear that Amorphous material was there and bladder wash done.


10. Thus, in the facts and circumstances just narrated above, the

question for consideration is whether the findings recorded by the members of District Forum in the majority order could be sustained or not .


11. Before proceeding further something should be said about some professional medical negligence.


Professional negligence


12. Professional negligence, rather medical negligence is that which , as the term suggests, relates to the medical profession and is the rsult of some irregular conduct on the part of any member of the profession or related services in discharge of professional duties.


13. It may be stated here that to establish negligence on the part of the defendent, the claimant must show-


(a) what is the standard of care;

(b) on the facts of the case, that the defendant's conduct fell below that standard;


Negligent diagnosis

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14. The duty of a medical practitioner arises from the fact that he does something to a human being which is likely to cause physical harm unless it is done with proper care and skill. There is no question of warranty, undertaking or profession of skill. The standard of care and skill to satisfy the duty in tort is that on an ordinary competent medical practitioner exercising the ordinary degree of profession skill. A professional charged with negligence

can clear himself if he shows that he acted in accordance with general and approved practice. It is not required in discharge of his duty of care that he should use highest degree of skill, since the same may never be acquired by each and every individual. Even deviation from normal professional practice is peculiar and special circumstances is not necessarily evidence of negligence. As regards the standard of care required for the medical man it can be stated that a mistaken diagnosis is not necessarily a negligent diagnosis. A practitioner can only be held liable in this respect if the diagnosis is so palpably wrong as to prove negligence that is to say if his mistake is of such a nature as to imply an absence of reasonable skill and care on his part, regard being had to the ordinary level of skill in the profession.


15. For wrong diagnosis, a person can be held liable in two conditions-


(i) That wrong diagnosis caused injury to the patient.


(ii) That a practitioner can only be held liable in this respect if his diagnosis is so palpably wrong as to prove negligence i.e. if his mistake is of such nature as to imply an absence of reasonable skill and care on

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his part. Reasonable skill is equated with ordinary or average level of skill in the profession.


16. Keeping the above principles in mind, the facts of the present case are being examined.


On burden of proove


17. The burden of proving the negligent act or wrong diagnosis shall always remain on the complainant and the complainant has to produce some evidence to show that the report given by the doctor concerned was palpably wrong.


18. In the present case so far as the question whether respondent was qualified in giving the report of the sonography or not is concerned, for that a bare perusal of the report dated 8.4.04 reveals that the respondent doctor is having qualification of MBBS, MRSH, Ex.PCMS, Ultrasound Specialist Libya and AIIMS ( N.Delhi) and thus it could be held that respondent was having requisite qualifications on the date when he had given the report on 8.4.04.


19. The next question is whether while giving the report on 8.4.04 a reasonable care had been taken by the respondent or not or whether on the basis of the facts and circumstances of the case just mentioned above, the case of medical negligence on the part of the respondent doctor could be found established or not.


20. In the present case no doubt the report of sonography dated 8.4.04 in respect of abdomen reveals that the respondent had found " Impression- Changes in UB is S/O Vesical calculous" in

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the gal bladder of the complainant appellant on the basis of the photographs of the sonography, meanin thereby he had found some stones in the gal bladder.


21. Further the discharge ticket of Mahatma Gandhi Govt. Hospital, Hanumangarh Town where the complainant appellant was admitted on 18.4.04 and was discharged on 26.4.04 and operation was done on 19.4.04 and further Dr. Deepak Saini had written in the operative notes that stones were not found in the gal bladder but some gritty sensation was found.


22. The dictionary meaning of the word " gritty" is sandy or stoney, meaning thereby there were some impressions in the gal bladder for which the respondent had felt that they were stones and had opined like that though there were no stones in real sense but they could be easily described as gritty sensation.


23. When this being the position, the report dated 8.4.04 given by the respondent could not be said to be a wrong report as there is minor distinction between stones and gritty sensation and if respondent had treated that material as stones in the gal bladder, it could not be said that the report dated 8.4.04 given by the respondent was palpably wrong as it must be remembered that a mistaken diagnosis is not a negligent diagnosis. No human being is infallible and a practitioner can only be held liable in this respect if his diagnosis is so palpably wrong as to prove negligence i.e. if his mistake is of such nature as to imply an absence of reasonable skill and care on his part. In this case this aspect is missing because even Dr.Deepak Saini who had operated the complainant appellant on 19.4.04 had found gritty sensation in the gal bladder.

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24. Not only this had the complainant appellant would have been cured at Hanumangarh by the operation conducted by Dr. Deepak Saini on 19.4.04 he would have not gone to Jaipur for further treatment and the fact that he had gone to Jaipur and had consulted the doctor of SMS Hospital, Jaipur, it clearly means that the trouble which was being faced by the complainant appellant in his gal bladder was not removed even after the operation conducted by Dr. Deepak Saini on 19.4.04 at Hanumangarh.


25. Not only this, even in the report dated 27.4.04 prepared by Kiran Diagnostic & Research Centre, Jaipur, in the gal bladder Calculus was found but with ? , meaning thereby the suspicion was still there that he was having something in his gal bladder though it might be different from stones.


26. It may be stated here that the complainant appellant was further admitted in the SMS Hospital, Jaipur on 27.4.04 and was discharged on 1.5.04 and the operation was done on 29.4.04 as Amorphous material was there and bladder wash done.


27. It may further be stated here that while the complainant appellant was being operated in the SMS Hospital, Jaipur on 29.4.04 and while doing the operation the bladder was washed, which clearly reveals that the gal bladder of the complainant appellant was having some trouble though it might be not in the shape of stones but might be in the shape of gritty sensation. Thus, it could be easily said that the gal bladder of the complainant was washed, meaning thereby something was in the gal bladder for which the respondent doctor had opined stones though Dr. Deepak Saini in his operation notes had opined some gritty feeling

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substance and they were still there upto 29.4.04 when the complainant appellant was again operated at Jaipur.


28. It may further be stated here that a pathologist on the basis of the photos and x-rays could only opine something and in the present case if on the basis of the photos of sonography, the respondent had opined that Impression- Changes in UB is S/O Vesical calculous but actually they were found gritty sensation, therefore, it could be easily held that the report given by the respondent could not be said to be a report based on wrong diagnosis. In other words it could not be said that it was incorrect or palpably wrong one.


29. When this being the position the findings recorded by the President of the District Forum decreeing the claim could not be sustained as they suffer from basic infirmity, illegality and perversity and the findings recorded by the Members of the District Forum rejecting the claim of the complainant appellant are liable to be confirmed one as they are based on correct appreciation of entire materials and evidence available on record and they do not suffer from any basic infirmity or illegality or perversity and hence, no interference is called for with the same and this appeal deserves to be dismissed.


Accordingly, the appeal filed by the complainant appellant is dismissed.



(Sikandar Punjabi) (Justice Sunil Kumar Garg)

Member President