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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
Dr. S.M. Kantikar, Presiding Member and Binoy Kumar, Member
Daya Singh – Petitioner
versus
Shivi Digital X-Ray, Ultrasound,
Colour Doppler and Mammography
Centre and Ors. – Respondents
Revision Petition No.266 of 2019
(Against the Order dated 26/11/2018 in Appeal No.434/2018 of the State Commission Haryana)
Decided on 25.1.2022
Counsel for the Parties:
For the Petitioner:Mr. Karun Sharma, Advocate
For the Respondent Nos.1 to 3:Mr. Fanish Kumar Rai, Advocate
For the Respondent No.4:Mr. Amit Kr. Singh, Advocate with Mr. Chubalemla Chang, Advocate
Headnote:
Consumer Protection Act, 1986 – S.21[Consumer Protection Act, 2019 – S.58] – Services – Medical Negligence – revision is filed assailing order of State Commission whereby Complaint of petitioner was dismissed – Whether failure to diagnose the urinary stone by Ultrasonography (USG) constitutes medical negligence – instant case was neither wrong diagnosis or missed diagnosis since both Radiologists were qualified and performed the USG as per the reasonable standards. As per the medical literature, the USG had limited role in detection of renal calculi. It is an accessible and inexpensive imaging method without the risk of exposure to ionizing radiation during CT study – In several studies, the accuracy of detecting renal, ureteric and urinary bladder calculi is 67%, 80% and 98% respectively – Further, sensitivity and specificity of USG varies – The calculi may be missed during USG due to lack of acoustic shadowing of the calculus, therefore, false positive or false negative detection is possible, therefore, sometimes calculi not being identified on USG and very often detection of translucent stones is missed during USG done by the experienced hands – Therefore, the medical negligence is not conclusively attributed upon the Opposite Party No. 1. – Petition dismissed. [Paras 10, 11].
Result: Petition dismissed.
ORDER
Dr. S.M. Kantikar, Presiding Member.—The Petitioner has filed the instant revision petition filed under section 21 of the Consumer Protection Act, 1986, against the Order dated 26.11.2018 passed by the State Consumer Disputes Redressal Commission, Haryana, Panchkula (for short the ‘State Commission’) in Appeal No. 434 of 2018, wherein the State Commission, dismissed the Appeal filed by the Petitioner.
2. The question involved herein is that whether failure to diagnose the urinary stone by Ultrasonography (USG) constitutes medical negligence?
3. Briefly stated the case of the Complainant / Petitioner is that on 31.08.2015, he suffered severe abdominal pain, and on his own got done an ultrasound from Shivi Digital X-Ray Ultrasound Coloured Doppler Mamography Centre (hereinafter referred to as the ‘Opposite Party No. 1’). The USG was reported as no calculus (stone), and there was no problem in the kidneys. However, he was getting regular abdominal pain. He consulted at M.M. Hospital, Mullana, Ambala. On 08.09.2015 at Aggarwal Digital X-Ray Center, 2nd USG was done which revealed 17 mm Calculus in the Renal Pelvis and 5-6 small Calculi. Thereafter, Dr. Sudhir Kapoor operated him and the stones were removed in Kapoor Hospital at Ambala. Being aggrieved by negligence of the Opposite Party No. 1 who failed to diagnose renal stone, which incurred heavy expenses and physical and mental agony, the Complainant filed a complaint before the District Forum, Ambala.
4. The District Forum, on hearing the parties, held that it was not negligence; because of certain technical limitations during USG examination. The Complaint was dismissed.
5. Being aggrieved by the Order of District Forum, the Complainant filed a First Appeal No. 434/2018, before the State Commission, Haryana at Panchkula. It was dismissed with the following observation:
“7. In first report of ultrasound, the presence of stone was not detected. However, in the second report the stone was deducted and thereafter, relying upon the second report, the surgery was conducted and the stone was removed. Somehow, if the presence of the stone was not reflected in the first report, it cannot be considered to be medical negligence. It may be due to some technical deficiency of particular equipment, which is used for preparing the report or conducting the test. The learned District Forum has taken into consideration each and every aspect from every angle. There is no illegality or ambiguity in the impugned order. Resultantly appeal fails and the same is hereby dismissed.”
6. Being aggrieved, the Complainant filed the instant Revision Petition.
7. Heard the arguments from the learned Counsel on both the sides and perused the material on record. Both the Counsel have reiterated their evidence filed before the lower fora.
8. It is an admitted fact that on 31.08.2015, the patient for his abdominal pain, on his own got USG done from Dr. Subhash Goel (MD Radiology) - the Opposite Party No. 1, who is a qualified Radiologist. He reported in USG that size and shape of both the kidneys were normal, and no evidence of stone or hydro-nephrosis. A simple left renal cortical cyst was reported, which was insignificant. After about a week on 08.09.2015, the Complainant got another USG performed by Radiologist Dr. Manish Agrawal at Aggrawal X-ray and Scan Centre, it revealed 17 mm stone and a left renal cyst with evidence of hydronephrosis.
9. On perusal of both the reports a doubt was in our mind that some discrepancies are evident in both the USG reports. In the first USG report, the age of the patient was mentioned as 58y, whereas the second ultrasound it was 67y. As stated by the Complainant, he was operated by Dr. Sudhir Kapoor for the removal of stone. However, there is nothing on record to prove that the patient was same Daya Singh. The Complainant neither filed the treatment record nor any affidavit of Kapoor Hospital to prove his case. The operative details or the size and type of the stones
