Ld. Advocate(s)

                   For Complainant: Subhasis Roy

                   For OP/OPs : Pradip Banerjee

Date of filing of the case                    :30.09.2015

Date of Disposal  of the case            : 31.01.2023

Final Order / Judgment dtd.31.01.2023

Complainant Tapan Ghosh being the legal and natural guardian/ father of minor Argha Ghosh  files the present complaint against the aforesaid opposite parties under section 12 of the Consumer Protection Act, 1986 alleging deficiency in service and Medical negligence and praying for Rs.40,0000.00 as cost of treatment, compensation amounting to Rs.4,50,000.00 and litigation cost amounting to Rs.10,000.00.

It is the allegation of the complainant that Complainant Argha Ghosh is a minor boy of four years nine months and resident of aforesaid address. On 15.06.2015 he was suffering with abdominal pain and went before OP NO.1 with his father Tapan Ghosh and on that time he was treated by OP NO.3 and he advised him to take admission immediately. On that time OP No.3 prescribed some medicines and also asked for some pathological tests.

OP No.2 is another concerned of OP NO.4. All the tests and USG were done before OP No.2 under the supervision of guidance of OP NO.1 who is a specialised doctor of Radiodiagnosis.

In the report of USG OP NO.1 categorically mentioned :-

Gallbladder:- Gallbladder is physiologically distended. Wall is normal. Multiple calculi are seen in gallbladder lumen. No perecolicystic collection muslession is seen.

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OP No.1 opined cholelithiasis mesenteric lymphadenitis-4 in numbers-largest on 1.5 centre meter.

Both the OP NO.1 & 3 on perusing the report of USG dated 16.06.2015 told complainant’s father namely Tapan Ghos that there was existence of stone in gallbladder of the complainant and also suggested for surgery.

Father of the complainant namely Tapan Ghosh being afraid took discharge of the complainant from OP NO.4 and took him to Ruby General Hospital where the complainant Argha Ghosh was admitted on 16.06.2015 and thereafter fresh USG of whole abdomen was done there and Doctor of the OP No.5 found that there was no existence of stone in the gallbladder of the complainant.

The report of USG which was done by OP No.1.As per advise of OP No.1-4 complainant and his father sustained mental pain and agony. They were physically harassed by the treatment given by OP No.1-4 who carelessly opined that the complainant is suffering from gallbladder stone and in the name of treatment they provided wrong report and collected Rs.7,557.00(Rupees Seven thousand five hundred fifty seven) from the complainant and his father.

Case is running ex-parte against OP No.1 & 3 vide order no.6 dated 06.01.2016.

OP No.2 & 4 filed W/V and denied and entire allegation of the complaint and further stated that there was no deficiency of service and there was no negligence on their part. They further contended that OP No.2 is a diagnostic unit and OP No.4 is a Hospital. Complainant Argha Ghosh is a minor boy of five years who was admitted before OP No.4 on 16.06.2016 under the supervision of OP No.3 with the complaints of abdominal pain. After admission all necessary investigations were done. OP No. 2 and 4 have limited infrastructure. OP No.2 appointed OP No.1 who is a qualified and experience Doctor on the subject for conducting Radiology, so there was no unfair trade practice and negligence act on the part of the OP No. 1-4 as alleged in the petition of complaint.

They further contended that medical tool or instrument for investigation has its limitation and 10% to 15% error including human error is a regular phenomena so question of deficiency in service or unfair trade practice does not arise. OP No.3 is a medical officer who only advised surgery. OP No.2 & 4 are investigations centres and OP No.1 is the Doctor who conducted the USG examination.

They further contended that report of Ruby General Hospital Ltd. i.e. OP No.5 cannot and should not be compared with the report issued by OP No.1, 2 & 4. The complainant has/had abdominal disorder, which fact cannot be denied.

They further contended that if any error in the report of USG is found, whether the same is within the permissible limit or not, the reports may sent to the State Medical faculty Govt. of West Bengal for expert opinion.

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Trial

During trial father of complainant Argha Ghosh namely Tapan Ghosh  being PW-1filed affidavit in chief. OP No.2 & 4 filed interrogatories to PW-1. PW-1 filed answer of interrogatories. He also filed certain documents (Xerox).

During trial one Shuvankar Maitra on behalf of OP No.2 as DW-1 filed affidavit in chief. Complainant files interrogatories. He also filed answer of interrogatories. He did not file any documents.

Documents

Complainant produced the following documents viz :

1)Prescription of issued by Monorama Hospitex dated 15.06.2015 in favour of complainant Argha Ghosh.......(One sheet)......(Xerox).....(Annex-1)

 2)Discharge letter issued by Monorama Hospitex dated 16.06.2015.....(One sheet).......(Xerox)......(Annex-1/1)

3)Report of USG issued by Monorama Ultrascan Pvt. Ltd. dated 16.06.2015......(One sheet)......(Xerox).....(Annex-2)

 4)Emergency Treatment/Admission Advise issued by Ruby General Hospital Ltd. dated 16.06.2015..........(One sheet).......(Xerox).....(Annex-3)

5)Advise issued by Ruby General Hospital Ltd. to complainant Argha Ghosh.......(One sheet).....(Xerox).......(Annex-3/1)

 6)USG report issued by Ruby General Hospital Ltd. dated 17.06.2015........(One sheet).......(Xerox)......(Annex-3/2)

7)Report issued by Department of Radiology Ruby General Hospital dated 17.06.2015........(One sheet).......(Xerox)..........(Annex-3/3)

8)Report of USG whole abdomen issued by Ruby General Hospital dated 17.06.2015.......(One sheet)........(Xerox).......(Annex-3/4)

 9)Report issued by Radiology Department, Rub General Hospital dated 17.06.2015..........(One sheet)....(Xerox)......(Annex-3/5)

 10)Discharge Summary and Certificate issued by Ruby General Hospital dated 19.06.2015.........(Three sheets)......(Xerox)........(Annex-3/6, 3/7 & 3/8)

11)Money Receipt issued by Monorama Hospitex Pvt. Ltd. dated 15.06.2015 for the amount of Rs.5557.00......(One sheet).......(Xerox)......(Annex-4)

12)Money Receipt issued by Monorama Hospitex Pvt. Ltd. dated 15.06.2015 for the amount of Rs.7557.00......(One sheet).......(Xerox)......(Annex-4/1)

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13)In patient bill issued by Ruby General Hospital Ltd. dated 19.06.2015........(Five sheets)........(Xerox).........(Annex-5,5/1,5/2,5/3 & 5/4)

Cash Memo issued by Prantik Medical Stores...............One sheet...............(Xerox copy)........(Annex-V/III)

OP No.1 and 2 did not file any documents.

Decision with Reasons

It is the allegation of the complainant as mentioned in the petition of complaint that OP No.1-4 were negligent and submitted wrong report relating to USG examination. When complainant was suffering with abdominal pain then OP No.3 advised USG examination and he went before OP No.2 for the USG examination. After completion of USG examination OP No.1 has given report to the complainant.

 In the said report OP No.1 mentioned that multiple calculi were seen in gallbladder lumen largest on 1.5 cm. After examination he opined cholelithiasis, Mesenteric lymphadenitis.

Doctor of OP No.2 at the time of discharge of the complainant on 15.06.2015 opined that patient was suffering with cholelithiasis, Mesenteric lymphadenitis.

At the time said treatment complainant paid total amount of Rs.7557.00 (Rupees Seven thousand five hundred fifty seven) which includes bed charge Rs.1800.00, consultation fees Rs.1200.00, diagnostic service Rs.2250.00, medicine charges Rs.1552.00 other service Rs.100.00, foods and beverage Rs.250.00 and service charges Rs.405.00.

Complainant’s father was afraid about the advise of OP No.1-4 and he took the discharge of the complainant and took away him at Ruby General Hospital Ltd.

They took admission of the complainant and advised some investigations including USG report of upper abdomen, USG report of whole abdomen and Radiological examination.

Doctors of Ruby General Hospital issued USG report of whole abdomen(Annex-3/4) and also issued report of USG of upper abdomen (Annex-3/2). They also issued Radiology report in respect of abdomen relating to kidneys, unitarily blood and prostate (Annex-3/3 & 3/5).

In annexure 3/2 it has mentioned  relating to gallbladder.:-

“Gall bladder is normal in size, outline, position and wall thickness. No intraluminal growth or calculus  could be detected. No pericholecystic fluid collection demonstrated.”

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In annexure 3/4 it has mentioned  relating to gallbladder.:-

“Gall bladder well distended. Fine sludge is seen in lumen.

Now crux of the whole disputes is moving in between two reports of USG of Gallbladder of complainant Argha Ghosh out of which one has been issued by Monorama Hospitex (OP NO.2) and done by OP No.1 and another has been issued by Ruby General Hospital Ltd. (OP No.5) as both reports are opposite in nature. In the report of Monorama Hospitex issued by OP No.1 it has mentioned that multiple calculi are seen in gallbladder lumen, largest on 1.5cm. In the report of Ruby General Hospital Ltd. (OP No.5) it has mentioned gallbladder is normal in size, outline, position and wall thickness. It has also mentioned no intraluminal growth or calculus could be detected in the visualized part. In the another report of Ruby General Hospital Ltd. (OP No.5) relating to USG of whole abdomen it has mentioned that gallbladder is well distended and find sludge is seen in lumen.

Complainant alleged that OP No.1 is working under OP No.2. who is the sister concern of OP No.4. OP No.3 is also working under OP No.4. All the OP No.1-4 gave wrong treatment by issuing wrong report of USG as a result complainant and his father sustained mental pain and agony and he prayed reliefs as per his prayer.

OP No.2 & 4 in their W/V alleged that instrument for investigations have its limitation and error up to 15%. As per their contention it has been admitted that error in the USG report has done. They contended that they are not responsible for the aforesaid error, only the instrument i.e the USG machine is responsible for the aforesaid wrong report. They further contended that it may be the error of human. DW-1 contended in his affidavit in chief that OP No.1stated in his USG report that multiple calculi were seen in Gallbladder lumen. There was no personal interpretation of OP No.1. OP No.2 & 4 argued in their BNA that investigation tool used for USG examination and multiple calculi were seen in gallbladder lumen which was reported by the OP No.1.

OP No.2 & 4 in their W/V stated that report of USG of complainant issued by Ruby General Hospital Ltd. relating to gallbladder cannot be and should not be compared with the USG report issued by OP NO.1.

They could not assigne proper reason as to why report of Ruby General Hospital Ltd. should not be compared with the USG report of Monorama Hospitex Pvt. Ltd. i.e OP NO.1-4. Accordingly we find that such type of contenstions of OP NO.2 & 4 remains a story. Accordingly, we find no merit in the said contention.

On careful comparison of the report of USG of complainant relating to gallbladder issued by Monorama Hospitex Pvt. Ltd. (Annex-2) and

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Ruby General Hospital Ltd. (Annex-3/2 and ¾), we find that both the reports are relating to gallbladder of complainant and same are opposite in nature and contention of aforesaid two reports cannot be true at the same time.

During argument Ld. Adv. for the OP NO.2 & 4 argued that report of Ruby General Hospital Ltd. may be false. We carefully considered annexure 3/2 and ¾ issued by Ruby General Hospital Ltd. On careful perusal of entire treatment papers of Ruby General Hospital Ltd., we find that they conducted two USG examination of the complainant . One in respect of whole abdomen and another is in respect of upper abdomen and both the reports are on the same line. Both the reports stated that no calculi were found in the gallbladder so both the reports cannot be said as wrong at a time. So we have no hesitation to say that reports of USG issued by Ruby General Hospital Ltd. cannot be thrown away as a wrong and not reliable report. Accordingly we do not find any merit in the argument of Ld. Adv. for the OP No.2 & 4.

We have carefully gun through the decision of Hon’ble N.C.D.R.C in  Kurien Joseph (DR) & ANR V.S Govindarajan reported in II (2013)CPJ 296 (NC). In the said case first pathological report does not conclude that patient had carcinoma. It only states that there were some appearances in specimens which were indicative of carcinoma but these needed to be correlated with other tests. Doctor’s reason for not conducting biopsy of abdominal mass or cysts was on ground that it could have caused severe bleeding. It was medically well established that only way to determine if a growth is cancerous is to remove a sample of it and conduct a biopsy on it. In the said case Medical negligence was proved. And Commission awarded compensation.

     We have carefully gun through the decision of Hon’ble N.C.D.R.C in Bahadur Singh & ANR Vs. DR H.S. BAJWA & ANR reported in IV (2016)CPJ 623 (NC). In the said case biopsy report not indicated cancer. Patient condition became worst. Test reveal cancer in right breast.

Subsequently patient died. In said case deficiency in service of pathological laboratory was proved and Hon’ble S.C.D.R.C. awarded compensation.

     We have carefully gun through the decision of Hon’ble N.C.D.R.C in SRI MANJUNATHA LABORATORY & ANR V.S MEENAKSHI reported in I (2009) CPJ 56 (NC). In the said case wrong blood report was found. HIV positive report given to HIV negative report. It was observed that pathologist need to be very careful while giving finding. In the said case Hon’ble SCDRC awarded compensation which was upheld by Hon’ble NCDRC.

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We have carefully gun through the decision of Hon’ble N.C.D.R.C in DEO KUMAR SINGH V.S C.B.P SINHA (DR) reported in I (2008) CPJ 205 (NC). In the said case wrong blood report was found. Report of blood group Rh negative was reported to be Rh positive by the OP.  Hon’ble NCDRC observed that Rh factor plays extremely important role during pregnancy. Appropriate treatment could not be given due to wrong blood report about Rh factor. In said case it was proved before the Hon’ble NCDRC that it was a case of deficiency in service. Hon’ble NCDRC granted compensation.

Having regard to the aforesaid discussion we are of the farm view that report of USG of complainant relating to gallbladder issued by Monorama Hospitex Pvt. Ltd. dated 16.06.2015 is palpably wrong report. The reason best known to the OP No.1-4 as to how such type of wrong report was issued in favour of the complainant. It may be that said report was issued due to their malfide intention to get financial benefit in the manner of mal practice. Accordingly, it is clear before us that  due to the aforesaid wrong report of USG complainant and his father sustained harassment, mental pain and agony and that cannot be ignored. Accordingly, we have no hesitation to say that OP No.1-4 jointly or severally are involved in the matter and they should be asked to pay adequate compensation in favour of the complainant and that cannot be less than  Rs.1,00,000.00.

     Having regard to the facts and circumstances of this case, pleadings of the parties, evidence on record and BNA of the parties and in view of the aforesaid decisions we are of the considered view that OP No.1-4 who without proper examination or without proper attention or without proper application of mind prepared the USG report of the complainant minor Argha Ghosh as a result complainant was compelled to go for treatment before OP No.5 and compelled to second opinion  and suffered mental strain which cannot be ignored in any way as a matter of excuse.

In view of the foregoing discussions we are of the farm view that aforesaid act on the part of OP No.1-4 is nothing but negligence as per medical science.

 Due to the aforesaid negligence on the part of OP No. 1-4, complainant suffered a lot and compelled to go for painful and costly treatment process.

Accordingly we find negligence on the part of OP No. 1-4 and necessary order should be passed against them. We also think that cost of treatment before OP No.5 should be paid by the OP No.1-4 in favour of the complainants because due to the wrong of OP No.1-4 complainant compelled to go for said treatment. As per document complainants paid

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Rs.7557.00 to the OP No.2 and 4 as cost of indoor treatment. They also paid Rs.19220.00 to the OP No.5 as cost of indoor treatment.

In the result present complaint succeeds.

Hence,

it is

                                                        Ordered

                                                                        that the present case vide No. CC/119/2015 be and the same is allowed on contest against the OP No.1-4 with cost of Rs.10,000/- (Rupees Ten thousand) to be paid by  OP No.1-4 in favour of the complainant and the case is dismissed ex-parte against the OP No.5 but without any order as to cost.

OP No. 1-4 shall pay Rs.30,000/-  ( Rupees Thirty thousand) as cost of  treatment in favour of the complainants within one month from this date of order failing which aforesaid amount shall carry interest @ 9% per annum from 03.03.2023 to till the date of actual payment.

OP No. 1-4 are further directed to pay Rs.1,00,000/-  ( Rupees One lakh) as compensation in favour of the complainants within one month from this order failing which aforesaid amount shall carry interest @ 9% per annum from 03.03.2023 to till the date of actual payment.

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If the OP No.1-4 do not comply the aforesaid order within the time mentioned above, then complainant shall have liberty to put the aforesaid order into execution.

Let a copy of this Final Order be supplied to the complainant and OP No.2 & 4 as free of cost.

Dictated & corrected by me

 ............................................

                PRESIDENT

(Shri   DAMAN PROSAD BISWAS,)        ..................... ..........................................

                                                                                                                          PRESIDENT

                                                                        (Shri   DAMAN PROSAD BISWAS,)

I  concur,

                                                                                                    ........................................                                                 

          MEMBER                                                                 

(NIROD  BARAN   ROY  CHOWDHURY)