ORDER 1. The Respondent - original ‘Complainant underwent ultrasonography (USG) for abdominal pain on 12.05.2015. It was performed at BSR Pathology Lab and reported that the left kidney of the Complainant was having calculus (stone). 2. The doctors at Avanti Hospital prescribed medicines, but he did not get the relief. Thereafter, he went to Ramkrishna Care Hospitals and on 19.05.2015, USG of abdomen was performed by the Appellant - original Opponent, who reported no stone or any abnormality in both kidneys.
3. The pain further persisted, therefore, the Complainant went to Vidya Hospital Kidney Centre, Raipur. The USG was performed at Apollo Diagnostic Centre at Raipur, which reported the presence of stone. 4. Being aggrieved by the wrong report given by the OP, the Complainant filed a Consumer Complaint before the State Commission and prayed for Rs. 25 lakh as a compensation under different heads. As the doctor did not appear before the State Commission and was proceeded against ex-parte. 5. The State Commission, considering the averments of the Complaint and based on the evidence adduced by the Complainant, partly allowed the Complaint and directed the OP to pay Rs. 50,000/- as compensation alongwith interest @ 9% p.a. and Rs. 5,000/- as litigation cost. Arguments of Appellant : A) It was submitted that the Appellant had left his job in the Ramkrishna Hospital much before the date of filing of the Consumer Complaint, therefore the notice could not be served upon him. The State Commission wrongly proceeded ex-parte against him. B) The allegations in the Complaint are vague, made to extract money from the OP even after he had left the hospital and was employed elsewhere. C) The OP performed USG as per protocol and merely because there is difference in opinion or interpretation among medical professionals, negligence cannot be conjectured or surmised. He further argued that the possibility of misinterpretation by the other doctors cannot be ruled out. The reporting depends upon the type of machine and software according to technological advancement. D) The State Commission ought to have sought independent opinion on all USG films, rather than deciding the case based on one-sided submissions of the Complainant when the OP was not present and was unheard. Held :. 1. Hon. NCDRC relied upon the sonography report which reads as under : The three USG reports on record have been perused. It is noted that: (a) USG done at BSR Pathology, Raipur dated 12.05.2015 showed "Left Renal Stone". And the X-Ray KUB was “No Left Renal Stone". (b) USG done at Ramkrishna Hospital, Raipur dated 19.05.2015, reported by OP that no obvious abnormality "No Left Renal Stone". (c) USG done at Apollo Diagnostic Centre, Raipur dated 21.05.2015 showed "Left Lower Ureter Stone" 2 The Commission relied upon the Medical literature and standard textbooks on Radiology and observed that the USG of renal stone detection involves different misinterpretations, as for example: (a) Few calcifications along the corticomedullary junction appear as stone and a few sonologist mention it as renal stone; (b) Prominent vascular markings along the renal calyx appear as white spots in USG imaging and may be misinterpreted as renal stone; (c) Sometimes few prominent mucosa with fatty tissue within renal pelvicalyceal system appears as white spots in USG imaging and may be misinterpreted as renal stone; (d) Renal Stone can disappear earlier which depends on the type of material within e.g. calcium is dominant it disappear within hours or days. (e) Renal stones can appear earlier which depends on the type of material within e.g. calcium granules can appear within hours or days. (f) Renal abdominal pain has many causes not only renal stone is responsible for that always. 3. It further held that at the first place the Opp. Doctor was wrongly proceeded ex-parte as when the notice was served, the Doctor was not working at the Hospital. It is pertinent to note that the OP was wrongly proceeded against ex-parte before the State Commission, even though the service of the notice upon him was not effected since the OP had by that time already left the hospital. 4. It was further observed that a mere perusal of the prayer clause of the Complaint shows that on the face of it itself an exaggerated claim was made without any justification given. 5. The Commission observed that the OP is a qualified Radiologist, having post graduate degree, MD (Radiology), and having extensive experience in performing USG of abdomen. 6. There are certain limitations in USG. Sometimes the renal calculi are not visible due to intestinal gases shadows in the abdomen, sometimes stones even pass out through urine. Even the best of Radiologists cannot be better than the machine used for the USG, he cannot improve on the technical soundness or advancement of the machine available at his command. The more advanced a machine, the more precise is its report. However, not every hospital can afford the latest state of the art machines. And the Radiologist has to function with the machine available to him. 7.Pertinently, an advanced Apollo Diagnostic possesses USG 730 (GE) Machine having Advanced Live 4-D Voluson, which has more precision and accuracy, was used in the USG cited at (c) in para 11 above, in which left lower ureter stone was detected. 8. The Court further held that the State Commission appears to have hastily arrived at its findings of medical negligence on the part of the OP, without examining to the requisite depth, the limitations and technicalities of USG, and without taking independent expert opinion on the subject where experts in the field could have thrown light from standard medical literature and brought forth limitations of the level of advancement of the machine used for imaging. As such its appraisal cannot sustain. On the basis of the entire material on record and the critique made hereinabove no negligence is attributable to the OP Dr. Hulesh Mandle. The complainant was saddled with Costs for frivolous compliant : It is apparent that the instant Complaint was filed by the Complaint with wrong current address of the OP, beyond limitation, with highly inflated claim. The same, being bereft of any substance, being frivolous and vexatious, merits dismissal with cost of Rs.10,000/- contemplated for such Complaints under Section 26 of the Act, 1986, to be deposited in the Consumer Legal Aid Account of the State Commission within six weeks from this Order. This case has paved the way for check on malicious complaints and medicos should harp on this topic that if the complaint is proved to false, Doctors should be suitably compensated. The Doctors would definitely say that the cost imposed in the present case is too low, compared to what the Doctors otherwise might end up in paying. This case has also underlined a subtle but important aspect that "USG has its limitations and that every Hospital cannot afford advanced machine and Radiologist has to work with the machine he has" Thanks and regards, Adv. Rohit Erande.© Thanks
|
Comments
Post a Comment