Ld. Advocate(s)
For Complainant: Subhasish Roy
For OP/OPs : Kajal Ghosh
Date of filing of the case :13.08.2015
Date of Disposal of the case : 30.11.2022
Final Order / Judgment dtd.30.11.2022
Complainant Kalpana Biswas 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 compensation amounting to Rs.30000.00(Rupees Thirty thousand) as cost of medical treatment and Rs.50,000.00(Rupees fifty Thousand) as compensation for her mental pain and agony.
It is the allegation of the complainant that she was carrying pregnancy and went before OP No.2 who advised her for USG examination. Her expected date of delivery was 21.06.2015. Thereafter, she went before the OP No.1 for USG examination and after USG examination OP No.1 gave report to the complainant on 04.06.2015. In the said report OP No.1 mentioned the weight of the foetal as 3850± 552grmas. After seeing the aforesaid report OP No.2 immediately advised the complainant to take admission in the Nursing Home for immediate LSCS for saving of the life of the complainant without waiting till the EDD (expected date of delivery). ON 06.06.2015 LSCS of the complainant was done and after delivery weight of the baby was found as 2600 gms. Due to erroneous report of the OP No.1 complainant compelled to go for LSCS and she accordingly suffered physical hazards, mental pain agony and also suffered pecuniary loss as cost of operation. As the weight of the baby was mentioned wrongly in the USG report of OP No.1, OP No.2 would not take the risk of normal delivery.
OP No.1 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 his part.
OP No.2 also filed W/V and denied the entire allegations of the complainant and further stated that there was no deficiency of service and there was no negligence on his part.
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Trial
During trial complainant Kalapana Biswas filed affidavit in chief. She also submitted answer as per interrogatories of OP No. 1-2.
OP No.1 Dr. S.K. Patra filed affidavit in chief and he also submitted answer as per interrogatories of the complainant.
OP No.2 Dr. S. Mukhopadhyay filed affidavit in chief and he also submitted answer as per interrogatories of the complainant.
Documents
Complainant produced the following documents viz :
1) Prescription of Shushrusha, Tehatta, Nadia .......................... one sheet.......... (Xerox copy)......(Annex-I)
2) Prescription of Dr. Saikat Mukhopadhyay.....one sheet..........(Xerox copy)....(Annex-II)
3) Birth Certificate of Baby issued by Prantik Nursing Home.....One sheet.......(Xerox copy)..........(Annex-III)
4) Report of USG issued by Shushrusha, Tehatta, Nadia............One sheet............(Xerox copy)..........(Annex-IV)
5) Report of USG issued by Shushrusha, Tehatta, Nadia............One sheet............(Xerox copy)..........(Annex-IV/I)
6) Report of USG issued by Shushrusha, Tehatta, Nadia............One sheet............(Xerox copy)..........(Annex-IV/II)
7) Cash Memo issued by Prantik Medical Stores...............One sheet...............(Xerox copy)........(Annex-V)
8) Cash Memo issued by Prantik Medical Stores...............One sheet...............(Xerox copy)........(Annex-V/I)
9) Cash Memo issued by Prantik Medical Stores...............One sheet...............(Xerox copy)........(Annex-V/II)
10) Cash Memo issued by Prantik Medical Stores...............One sheet...............(Xerox copy)........(Annex-V/III)
OP No.1 and 2 did not file any documents.
(4)
Decision with Reasons
It is the allegation of the complainant as mentioned in the petition of complaint that OP No.1 was negligent and submitted wrong report relating to USG examination. When complainant was carrying pregnancy and was under the treatment of OP No.2 then OP No.2 advised USG examination and she went before OP No.1 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 the weight of the foetus as 3850 gmrs ± 552 grms. After seeing the said report OP No.2 found that weight of the foetus is much more than the normal weight and OP No.2 did not take any risk to wait up to the date of EDD and did not take any risk for normal delivery.
All the opposite parties in their W/V flatly denied the allegation of medical negligence and deficiency in service. They separately stated that there was no negligence on their part.
But OP No.1 could not give any satisfactory explanation in his W/V as to why such type of error was committed in the USG examination.
Even he failed to assign proper reason in his affidavit in chief as well as in the written argument relating to aforesaid weight of the foetus (i.e.3850 gms) which was subsequently established after delivery as 2600 gms.
Let us see USG report issued by OP No.1 on 04.06.2015 (vide document no.1) which reads as under:-
UTERUS : Gravid.
FOETUS : Single.
PRESENTTION : Cephalic.
FOETAL HEART : Foetal heart in seen in M-Mode with foetal
heart rate 138 b.p.m.
PLACENTA : Fundo-posterior. Maturity is Grade-III.
LIQUOR : Clear & adequate.
INT. OS : Closed.
FOETAL-PARAMETERS
BPD = 9.79 Cm = 40 wks 1 days
AC = 36.47 Cm = 40 wks 3 days
FL = 7.96 Cm = 40 wks 5 days
Foetal maturity = 40 wks. 3 days (+/- 3 wks).
Foetal weight = 3850 +/- 552 gms.
Anomaly scan not done.
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IMPRESSION : SINGLE LIVE FOETUS OF 40 WKS. 3 DAYS MATURITY.
Let us see the Birth Certificate of Baby issued by PRANTIK NURSING HOME AND QUEST LAPAROSCOPY & INFERTILITY CENTER. As per said certificate weight of the baby was found immediately after the birth i.e. on 06.06.2015 at 08:54 A.M. as 2600 grms.
It appears before us that weight of the baby in uterus was found as 3850 grms. If it is found as genuine then weight of the baby at the time of birth cannot be 2600 grms. If after birth it was found upto 3298 grms then it could be accepted as per medical science but the natural weight which was found immediately after birth as 2600 grms.
Ld. Adv. for the OP No.1 at the time of hearing admitted that weight of the baby in uterus has been described in the USG report as 3850 grms and it was nothing but accidental mistake and that cannot be considered as negligence.
In reply Ld. Adv. for the complainant argued that OP No.1 negligently prepared the USG report and did not apply his mind at the time of USG examination. If OP No.1 did his duty properly at the time of USG examination then weight of the baby in uterus would not 3850 grms. But as OP No.1 mentioned the weight of the baby in uterus as 3850 grms, treating doctor i.e. OP No.2 rightly took the decision for immediate caesarean operation of complainant for safety of her life as well as safety of the life of the baby. Due to aforesaid wrong report, complainant was compelled to agree for aforesaid operation. If OP No.1 would not mention the right weight of the baby then there would not any occasion to go for caesarean operation and there would have been normal delivery.
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.
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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 given finding. In the said case Hon’ble SCDRC awarded compensation which was upheld by Hon’ble NCDRC.
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 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 who without proper examination or without proper attention or without proper application of mind prepared the USG report of the complainant as a result complainant was compelled to go for untime caesarean operation on her body and compelled to bear physical and 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 is nothing but negligence as per medical science.
Due to the aforesaid negligence on the part of OP No. 1, complainant suffered a lot and compelled to go for painful treatment process.
Accordingly we find negligence on the part of OP No. 1 and necessary order should be passed against him. We also think that cost of caesarean operation should be paid by the OP No.1 in favour of the complainant because due to the wrong of OP No.1 complainant compelled to go for said operation. During trial complainant submitted copy of some vouchers relating medicine which was used at the time to her caesarean operation amounting toRs.8976/- (Rupees Eight thousand nine hundred seventy six). She could not furnished the cost of Nursing
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Home and fees of doctor of the said caesarean operation. In this situation we think that cost of caesarean operation can be assessed as Rs.25000.00(Rupees Twenty five thousand).
We also think that an amount of compensation amounting to Rs.30000/-(Rupees Thirty thousand) should be paid by the OP No.1 in favour of the complainant for her physical hazards, harassment, suffering, mental pain and agony.
In the result present complaint succeeds.
Hence,
it is
Ordered
that the present case vide No. CC/106/2015 be and the same is allowed on contest against the OP No.1 with cost of Rs.10,000/- (Rupees Ten thousand) to be paid by OP No.1 in favour of the complainant and the case is dismissed on contest against the OP No.2 but without any order as to cost.
OP No. 1 shall pay Rs.25,000/- ( Rupees Twenty five thousand) as cost of caesarean operation in favour of the complainant within one month from this date of order failing which aforesaid amount shall carry interest @ 9% per annum from 30.12.2022 to till the date of actual payment.
OP No. 1 is further directed to pay Rs.30,000/- ( Rupees Thirty thousand) as compensation in favour of the complainant within one month from this order.
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If the OP No.1 does 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. 1 as free of cost.
