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	Important judgements passed by the Consumer Courts Medical negligence could not be proved, as the complainant failed to substantiate his allegation with adequate evidence. NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI REVISION PETITION NO. 704 OF 2017 (Against the Order dated 04/11/2016 in Appeal No. 1589/2014 of the State Commission Punjab) SATWINDER SINGH S/O. SH. JAGTAR SINGH, R/O. VILLAGE KHAWAJA VARDAK (DERA PATHANA) POST OFFICE DHIANPUR, TEHSIL DERA BABA NANAK DISTRICT-GURDASPUR. PUNJAB ...........Petitioner(s) Versus DR. GURMEET SINGH CHHINA & 2 ORS. C/O. H.A.S. CHHINA HOSPITAL, BATALA, OPPOSITE CIVIL HOSPITAL, BUS STOP B-53/1107, NAVROOP NAGAR, GAUNSPURA BATALA, TEHSIL BATALA, DISTRICT-GURDASPUR. PUNJAB ...........Respondent(s) BEFORE: HON'BLE MR. JUSTICE V.K. JAIN, PRESIDING MEMBER Dated : 15 Apr 2019 ORDER Late Smt. Paramjit Kaur wife of the petitioner/complainant went to respondent No.1 Dr. Gurmeet Singh Chhina complaining of abdominal pain and gastritis. He referred her to Sharma Diagnostic Centre being run by respondent No.2 - Dr. Ramesh Kumar Sharma, for an abdominal ultrasound. The ultrasound was conducted on 13.5.2011. The ultrasound report to the extent it is relevant, reads as under:- “Liver is of normal size, shape and echo texture. No. SOL is seen in dt. IHBR are not dilated. CBD is of normal caliber. Gall Bladder is well distended with normal wall thickness and multiple calculi are seen in its lumen. Pancreas and spleen are normally seen. Kidneys are seen at normal location. Their size and echo texture is normal with maintained CMD. No calculus or hydronephrosis present. Perinephric areas are normal. Ureters of normal caliber. Urinary Bladder is normally distended with regular wall and clear lumen. Uterus is normal size, shape and echotexture. Its endometrial cavity complex is normal. Both the adenexal regions are normal. Cul – de – sac is clear. No free fluid seen in peritoneal cavity.” 2. Based upon the Diagnostic Report, Cholecystectomy was performed by respondent No.1 Dr. Gurmeet Singh Chhina in his hospital – Chinna Hospital Batala on 16.5.2011 and she was discharged on 18.5.2011. However, since the abdominal pain of the patient did not subside despite removal of her gallbladder, she went to another diagnostic centre, namely, Walia Diagnostic Centre of her own on 23.5.2011. At that time, the examination of her pancreas revealed a suspected soft tissue mass measuring 3.7 x 3.1 cm in the head of pancreas. Her Intrahepatic Biliary Radicles were found mildly dilated. She was admitted in another hospital, namely, Mokha Hospital on 24.5.2011 and discharged from there on 27.5.2011. She then got admitted in DMC Ludhiana on 1.6.2011 where her chemotherapy was done. She remained admitted in Mokha Hospital from 15.6.2011 to 19.6.2011 and yet another Ultrasound Scan was done at a centre in Amritsar on 15.6.2011 which revealed a mass of 68 x 59 x 50 mm. She remained admitted in another hospital at Amritsar and ultimately she expired on 29.9.2011. 3. Alleging negligence, on the part of respondent No.1 in her treatment and on the part of respondent No.2 in the diagnostic ultrasound performed on her, the complainant approached the concerned District Forum by way of a consumer complaint. 4. The complaint was resisted by the respondents who denied any negligence on their part. 5. The District Forum having allowed the consumer complaint, the respondents approached the concerned State Commission by way of an appeal. Vide impugned order dated 4.11.2016, the State Commission allowed the appeal filed by them and consequently, dismissed the complaint. The complainant/appellant had also preferred an appeal before the State Commission seeking enhancement of the compensation awarded by the District Forum. That appeal was also dismissed by the State Commission. Being aggrieved, the petitioner is before this Commission by way of this revision petition. 6. As far as the alleged negligence on the part of Respondent No.2 in performing Ultrasound Scan of deceased is concerned, the case of the complainant/petitioner is that the mass which Walia Diagnostic Centre reported on 23.5.2011 was not reported on 13.5.2011 which shows that the scan was not performed with due diligence. In other words, the case of the petitioner is that had the Ultrasound Scan been performed diligently, the mass would have been detected on 13.5.2011 and the treatment for the cancer of the pancreas would have started 10 days earlier. 7. It would be seen from a perusal of the report of Walia Diagnostic Centre dated 23.5.2011 that the size of the mass was 3.7 x 3.1 cm on that date. The report of Randhawa Ultrasound Centre on the very next day, i.e., 24.5.2011 shows the size of the mass to be 49 x 46 x 41 mm. This clearly shows that the mass was increasing at a very fast speed and that is why it had increased from 3.7 x 3.1 cm on 23.5.2011 to 4.9 x 4.6 x 4.1 cm on the very next day. The Ultrasound Scan by respondent No.2 was done on 13.5.2011, 10 days before the scan was done at Walia Diagnostic Centre on 23.5.2011. Considering the speed at which the mass had increased in one day, i.e., between 23.5.2011 to 24.5.2011, there is a strong probability of the mass being very small on 13.5.2011. The State Commission in the impugned order dated 4.11.2016 relied upon a Book of Surgery by M.A. Akbar, MS which to the extent it is relevant, reads as under:- “Carcinoma of the pancreas in the head and body can be identified in most patients when they present clinically but tumours less than 2 cm in diameter are not usually detected.” 8. It would thus be seen that if the size of the tumor is less than 2 cm in diameter, it is normally not detected in an Ultrasound Scan. Considering the speed with which the tumor had progressed between 23.5.2011 and 24.5.2011, there is more than reasonable probability of the diameter of the tumor being less than 2 cm on 13.5.2011. Therefore, relying upon the medical literature, it can be safely said that the size of the tumor on that date could be less than 2 cm. It would be pertinent to note here that no medical literature was produced before the State Commission to show that even a tumor of less than 2 cm in diameter is usually detected in an Ultrasound Scan. No medical literature, contrary to the literature relied upon by the State Commission, has been produced before me. Therefore, I see no reason to reject the medical literature referred by the State Commission while dismissing the consumer complaint. 9. Admittedly, no Radiologist or Sonologist was produced by the petitioner before the District Forum to prove that considering the size of the tumor on 23.5.2011 and 24.5.2011, it should have been identified even in the scan which had been done on 13.5.2011. Therefore, no expert evidence was available to the Fora below to prove the negligence attributed to respondent No.2. 10. It is also pointed out by the learned counsel for the complainant that in the ultrasound done on 23.5.2011, Intrahepatic biliary radicles were found mildly dilated, which was not shown in the Ultrasound Scan done by respondent No.2 on 13.5.2011. However, no expert evidence was led to prove that the Intrahepatic biliary radicles could not have got even mildly dilated between 13.5.2011 and 23.5.2011 and therefore, should have been noticed while conducting the Ultrasound Scan on 13.5.2011. 11. As far as Respondent No.1 is concerned, he removed the gallbladder of the patient based upon the report given by respondent No.2. Since multiple calculi were found in the gallbladder of the deceased, at the time the ultrasound was done on 13.5.2011, the procedure performed by respondent No.1 on her was fully justified. Removal of gallbladder is the standard procedure when multiple calculi are found in gallbladder. Therefore, no negligence on the part of respondent No.1 in the treatment of the deceased is proved. 12. It would also be pertinent to note here that a Board of Doctors was constituted to examine the allegations of negligence against the respondents. The Board of Doctors after examining the record of the patient, found no negligence on the part of either of the respondents in the treatment of the wife of the complainant. The report of the Board to the extent it is relevant, reads as under:- “Hence on the basis of record and as per statements recorded with documented proofs attached we the board of doctors are of the opinion that Morphology of pancreas is best delineated by CT or MRI Scan Small lesions of pancreas or inflammation of pancreas may not be detected in the early stages by ultrasound abdomen. Since in this case pre-operative investigation were all normal and the operation laproscopic cholecystectomy was performed successfully and the operation laproscopic cholecystectomy was performed successfully and the patient was discharged on request in satisfactory condition Dr. Gurmeet Singh Chinna HAS Chhina Hospital, Batala Operated Lab cholecystectomy in standard manner. As per reports patient is having 2 types of malignant tumors i.e. adenocarcinoam GB infiltrating into muscle layer other pancreatic cardinoma. Hence, in our opinion patient died due to natural rapid progression of disease and its known complications.” 13. Admittedly, the complainant had filed a criminal complaint against the respondents under Section 304-A of IPC alleging negligence on their part in the treatment of his wife. Vide order dated 12.1.2017, the concerned Judicial Magistrate 1st Class of Batala returned a finding that the complainant had failed to prove that the respondents were negligent in giving treatment and the report of Paramjit Kaur. It was held that she was not died due to negligent act of the respondents. They were accordingly acquitted. No appeal admittedly was preferred against the above-referred decision of the Trial Court which became final. 14. For the reasons stated hereinabove, I find no ground to interfere with the view taken by the State Commission. The revision petition being devoid of any merit is hereby dismissed, with no order as to costs. Top

Medical negligence could not be proved, as the complainant failed to substantiate his allegation with adequate evidence.

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI

REVISION PETITION NO. 704 OF 2017
(Against the Order dated 04/11/2016 in Appeal No. 1589/2014 of the State Commission Punjab)

SATWINDER SINGH
S/O. SH. JAGTAR SINGH, R/O. VILLAGE KHAWAJA VARDAK (DERA PATHANA)
POST OFFICE DHIANPUR,
TEHSIL DERA BABA NANAK
DISTRICT-GURDASPUR.   PUNJAB ...........Petitioner(s)
Versus
DR. GURMEET SINGH CHHINA & 2 ORS.
C/O. H.A.S. CHHINA HOSPITAL, BATALA, OPPOSITE CIVIL HOSPITAL, BUS STOP B-53/1107, NAVROOP NAGAR, GAUNSPURA BATALA, TEHSIL BATALA,
DISTRICT-GURDASPUR. PUNJAB ...........Respondent(s)

BEFORE:
    HON'BLE MR. JUSTICE V.K. JAIN, PRESIDING MEMBER

Dated : 15 Apr 2019

ORDER

Late Smt. Paramjit Kaur wife of the petitioner/complainant went to respondent No.1 Dr. Gurmeet Singh Chhina complaining of abdominal pain and gastritis. He referred her to Sharma Diagnostic Centre being run by respondent No.2 - Dr. Ramesh Kumar Sharma, for an abdominal ultrasound. The ultrasound was conducted on 13.5.2011. The ultrasound report to the extent it is relevant, reads as under:-
“Liver is of normal size, shape and echo texture.
No. SOL is seen in dt. IHBR are not dilated.
CBD is of normal caliber.
Gall Bladder is well distended with normal wall thickness and multiple calculi are seen in its lumen.
Pancreas and spleen are normally seen.
Kidneys are seen at normal location. Their size and echo texture is normal with maintained CMD.
No calculus or hydronephrosis present.
Perinephric areas are normal.
Ureters of normal caliber.
Urinary Bladder is normally distended with regular wall and clear lumen.
Uterus is normal size, shape and echotexture.
Its endometrial cavity complex is normal.
Both the adenexal regions are normal.
Cul – de – sac is clear.
No free fluid seen in peritoneal cavity.”

2.      Based upon the Diagnostic Report, Cholecystectomy was performed by respondent No.1 Dr. Gurmeet Singh Chhina in his hospital – Chinna Hospital Batala on 16.5.2011 and she was discharged on 18.5.2011. However, since the abdominal pain of the patient did not subside despite removal of her gallbladder, she went to another diagnostic centre, namely, Walia Diagnostic Centre of her own on 23.5.2011. At that time, the examination of her pancreas revealed a suspected soft tissue mass measuring 3.7 x 3.1 cm in the head of pancreas. Her Intrahepatic Biliary Radicles were found mildly dilated. She was admitted in another hospital, namely, Mokha Hospital on 24.5.2011 and discharged from there on 27.5.2011. She then got admitted in DMC Ludhiana on 1.6.2011 where her chemotherapy was done. She remained admitted in Mokha Hospital from 15.6.2011 to 19.6.2011 and yet another Ultrasound Scan was done at a centre in Amritsar on 15.6.2011 which revealed a mass of 68 x 59 x 50 mm. She remained admitted in another hospital at Amritsar and ultimately she expired on 29.9.2011.

3.      Alleging negligence, on the part of respondent No.1 in her treatment and on the part of respondent No.2 in the diagnostic ultrasound performed on her, the complainant approached the concerned District Forum by way of a consumer complaint.

4.      The complaint was resisted by the respondents who denied any negligence on their part.

5.      The District Forum having allowed the consumer complaint, the respondents approached the concerned State Commission by way of an appeal. Vide impugned order dated 4.11.2016, the State Commission allowed the appeal filed by them and consequently, dismissed the complaint. The complainant/appellant had also preferred an appeal before the State Commission seeking enhancement of the compensation awarded by the District Forum. That appeal was also dismissed by the State Commission. Being aggrieved, the petitioner is before this Commission by way of this revision petition.

6.      As far as the alleged negligence on the part of Respondent No.2 in performing Ultrasound Scan of deceased is concerned, the case of the complainant/petitioner is that the mass which Walia Diagnostic Centre reported on 23.5.2011 was not reported on 13.5.2011 which shows that the scan was not performed with due diligence. In other words, the case of the petitioner is that had the Ultrasound Scan been performed diligently, the mass would have been detected on 13.5.2011 and the treatment for the cancer of the pancreas would have started 10 days earlier.

7.      It would be seen from a perusal of the report of Walia Diagnostic Centre dated 23.5.2011 that the size of the mass was 3.7 x 3.1 cm on that date. The report of Randhawa Ultrasound Centre on the very next day, i.e., 24.5.2011 shows the size of the mass to be 49 x 46 x 41 mm. This clearly shows that the mass was increasing at a very fast speed and that is why it had increased from 3.7 x 3.1 cm on 23.5.2011 to 4.9 x 4.6 x 4.1 cm on the very next day. The Ultrasound Scan by respondent No.2 was done on 13.5.2011, 10 days before the scan was done at Walia Diagnostic Centre on 23.5.2011. Considering the speed at which the mass had increased in one day, i.e., between 23.5.2011 to 24.5.2011, there is a strong probability of the mass being very small on 13.5.2011. The State Commission in the impugned order dated 4.11.2016 relied upon a Book of Surgery by M.A. Akbar, MS which to the extent it is relevant, reads as under:-
“Carcinoma of the pancreas in the head and body can be identified in most patients when they present clinically but tumours less than 2 cm in diameter are not usually detected.”

8.      It would thus be seen that if the size of the tumor is less than 2 cm in diameter, it is normally not detected in an Ultrasound Scan. Considering the speed with which the tumor had progressed between 23.5.2011 and 24.5.2011, there is more than reasonable probability of the diameter of the tumor being less than 2 cm on 13.5.2011. Therefore, relying upon the medical literature, it can be safely said that the size of the tumor on that date could be less than 2 cm. It would be pertinent to note here that no medical literature was produced before the State Commission to show that even a tumor of less than 2 cm in diameter is usually detected in an Ultrasound Scan. No medical literature, contrary to the literature relied upon by the State Commission, has been produced before me.   Therefore, I see no reason to reject the medical literature referred by the State Commission while dismissing the consumer complaint.

9.      Admittedly, no Radiologist or Sonologist was produced by the petitioner before the District Forum to prove that considering the size of the tumor on 23.5.2011 and 24.5.2011, it should have been identified even in the scan which had been done on 13.5.2011. Therefore, no expert evidence was available to the Fora below to prove the negligence attributed to respondent No.2.

10.    It is also pointed out by the learned counsel for the complainant that in the ultrasound done on 23.5.2011, Intrahepatic biliary radicles were found mildly dilated, which was not shown in the Ultrasound Scan done by respondent No.2 on 13.5.2011. However, no expert evidence was led to prove that the Intrahepatic biliary radicles could not have got even mildly dilated between 13.5.2011 and 23.5.2011 and therefore, should have been noticed while conducting the Ultrasound Scan on 13.5.2011.

11.    As far as Respondent No.1 is concerned, he removed the gallbladder of the patient based upon the report given by respondent No.2. Since multiple calculi were found in the gallbladder of the deceased, at the time the ultrasound was done on 13.5.2011, the procedure performed by respondent No.1 on her was fully justified. Removal of gallbladder is the standard procedure when multiple calculi are found in gallbladder. Therefore, no negligence on the part of respondent No.1 in the treatment of the deceased is proved.

12.    It would also be pertinent to note here that a Board of Doctors was constituted to examine the allegations of negligence against the respondents. The Board of Doctors after examining the record of the patient, found no negligence on the part of either of the respondents in the treatment of the wife of the complainant. The report of the Board to the extent it is relevant, reads as under:-
“Hence on the basis of record and as per statements recorded with documented proofs attached we the board of doctors are of the opinion that Morphology of pancreas is best delineated by CT or MRI Scan Small lesions of pancreas or inflammation of pancreas may not be detected in the early stages by ultrasound abdomen. Since in this case pre-operative investigation were all normal and the operation laproscopic cholecystectomy was performed successfully and the operation laproscopic cholecystectomy was performed successfully and the patient was discharged on request in satisfactory condition Dr. Gurmeet Singh Chinna HAS Chhina Hospital, Batala Operated Lab cholecystectomy in standard manner. As per reports patient is having 2 types of malignant tumors i.e. adenocarcinoam GB infiltrating into muscle layer other pancreatic cardinoma. Hence, in our opinion patient died due to natural rapid progression of disease and its known complications.”

13.    Admittedly, the complainant had filed a criminal complaint against the respondents under Section 304-A of IPC alleging negligence on their part in the treatment of his wife. Vide order dated 12.1.2017, the concerned Judicial Magistrate 1st Class of Batala returned a finding that the complainant had failed to prove that the respondents were negligent in giving treatment and the report of Paramjit Kaur. It was held that she was not died due to negligent act of the respondents. They were accordingly acquitted. No appeal admittedly was preferred against the above-referred decision of the Trial Court which became final.

14.    For the reasons stated hereinabove, I find no ground to interfere with the view taken by the State Commission. The revision petition being devoid of any merit is hereby dismissed, with no order as to costs.