Madaan Surgical And Maternity Hospital vs SANTOSH

THE present Revision Petition being filed against the impugned order dated 17.05.2012 of the State Consumer Disputes Redressal Commission, (in short, ''State Commission '') Haryana, whereby the compensation awarded by District Consumer Disputes Redressal Forum, (in short, ''District Forum ''), Sonepat was upheld.

IN brief, the Complainant Smt. Santosh went to Madaan Surgical and Maternity Hospital, the OP -1 and Dr. Sushma Madaan, the OP -2 did her Ultra -Sonography (in short ''''USG '''') on 17.08.2000. The OP -1 told the complainant that the child has died and dried in the uterus. Thereafter, the Complainant went to Maharaja Agrasen Hospital, who referred her to Madhumita Diagnostic Centre/ OP -3, for another USG. On 18.08.2000, OP -3 performed USG and reported as no evidence of pregnancy, no mass, no free fluid seen in pouch of Douglas, urinary bladder is normal. Thus, alleging it a case of medical negligence and deficiency of service the Complainant filed a complaint before District Forum. The District Forum held the OP -1 and 2 liable and ordered to pay jointly and severally the sum of Rs.1,00,000/ - to the complainant for negligent services as well as for mental harassment, and the sum of Rs.2,000/ - towards costs.

AGGRIEVED by the order of the District Forum the OP 1 and 2 filed the First appeal before the State Commission, it was dismissed.

AGAINST , the impugned order of State Commission, the OP -1 and 2 filed this revision. We have heard the Counsels for the both parties, perused the medical records on file and the evidence adduced before the fora below. The Counsel for the petitioners denied any negligence and any mistake in their USG report. He argued about the limitations of USG study, and stressed upon expert evidence which was not produced by complainant in this case. The Counsel for the complainant vehemently argued that the OP 2 has collected Rs.4,000/ - but, no receipt was issued , hence no proof as such.

WE have perused both the USG reports one reported by OP - 2 Dr. Sushma Madan (Pathologist) and another by OP -3 Dr. Meeta Gupta (Radiologist). Relevant portions of both reports are reproduced as follows: Report from OP1 & 2 : Madaan Surgical & Maternity Hospital, Dated: 17.8.2000 is as follows: JUDGEMENT_184_NCDRC_2014.htm

WE have given a thoughtful consideration to these submissions. It is clear that the Petitioner is a senior Pathologist and running a Surgical and Maternity Nursing Home. There is no evidence to say that whether she is competent and qualified to perform and report the USG. In our opinion the said USG report appears to be incomplete, having no details. Just writing ''''Uterus and cervix are measuring together 13.2 cms appears '''' is an unscientific way of reporting. Further, the patient was advised for ''D and C ''. In contrast, the other USG report from Madhumita Diagnostic Centre was reported by a qualified Radiologist Dr. Meeta Gupta, MD, which clearly mentions about the size of uterus and thickness of the outline and other findings which is standard way of reporting of USG lower abdomen. No doubt, both reports are divergent. We have to decide whether it is an error of judgment? In our opinion ''''It is Yes '''', because USG was reported by a Pathologist, we are not convinced whether Pathologist possesses the reasonable Skill and competence to do USG and report it. The report was issued on the basis of experience and clinical findings. The USG was reported as suggestive of missed abortion. There was no evidence of any live fetus in the uterus, the pregnancy test was negative. The Complainant visited OP -1, for a case for treatment of mainly Secondary Sterility.

THERE are pitfalls and limitations in USG reporting, in this context we have perused an opinion of one radiologist Dr. Shalaj Gupta (annexure P -7) which is reproduced as follows: OPINION REGARDING ULTRASOUND REPORTS Ultrasound is an imaging study which is very commonly used in medical practice. It is a very important investigative tool. However, it has some limitations due to several variables in its performance. The report significantly depends on the sinologist ''s subjective interpretation of the picture, converted from the returning ultrasound waves. There are variations because of the artefacts, the sensitivity of the transducer, direction of the transducer, window selected, experience of the operator and the clinical correlation. Because of these and other factors, it is not surprising to find bonafide differences of opinion of different sinologists in a given ultrasound picture. Ultrasound is not a perfect depiction of scan result and cannot be 100% conclusive. Such differences of opinion are common in all professions including medical profession and are more likely where the investigation in interpreter/operator dependent.

THERE are four basic elements to constitute a medical negligence/ malpractice case. The four legal elements (4 D ''s) must be proven by complainant to claim in a medical negligence case. (a) Duty - a professional duty owed to the patient; (b) Deficiency / Breach of such Duty; (c) Direct Causation - injury caused by the breach (Causa Causans) (d) Resulting Damages.

Causation means that the medical professional ''s breach of the standard of care caused or contributed to causing some harm to the patient. In this case on hand, the Pathologist OP -1 is not a qualified Sonologist, but she has issued a USG report on the basis of her experience and clinical findings. Subsequently, on next day the Complainant took opinion from another Sonologist OP -3, which was a normal scan. There is as such no actual damage or any remote chance of damage. We cannot rely upon the preponderance of probabilities to fix liability on the doctor, unless there is any resultant injury due the negligent act of doctor. In medical negligence cases there is no presumption of or inference of negligence merely because of an unfortunate result which might have occurred despite the exercise of reasonable care. Under the law physicians are permitted a broad range of judgment in their professional duties and physicians are not liable for errors of judgment unless it''s proven that an error of judgment was the result of negligence A mere error of judgment occurs when a doctor makes a decision that turns out to be wrong. But to determine whether an error is one of ''''judgment '''' or whether it constitutes negligence it has been suggested that the court is to look at whether the error is so ''''egregious '''' as to constitute negligence. It may be more helpful to say that the question should be formulated as whether it was a judgmental error that would have been made by a reasonably competent and diligent practitioner.

WHEN does the liability arise? The liability of a doctor arises not when the patient has suffered any injury, but when the injury has resulted due to the conduct of the doctor, which has fallen below that of reasonable care. In other words, the doctor is not liable for every injury suffered by a patient. He is liable for only those that are a consequence of a breach of his duty. Hence, once the existence of a duty has been established, the Petitioner must still prove the breach of duty and the causation. In case there is no breach or the breach did not cause the damage, the doctor will not be liable. In order to show the breach of duty, the burden on the petitioner would be to first show what is considered as reasonable under those circumstances and then that the conduct of the doctor was below this degree. It must be noted that it is not sufficient to prove a breach, to merely show that there exists a body of opinion which goes against the practice/conduct of the doctor.

THE complainant did not produce any expert evidence to establish any negligence on the part of OP -1 The Hon''ble Supreme Court in the case of Dr. Laxman Balkrishna vs. Dr. Triambak, AIR 1969, SC 128 similar view, which has been further confirmed in the case of the Indian Medical Association vs. V. P. Santha. The Apex Court and the National Commission has held that the skill of a medical practitioner differs from doctor to doctor and it is an incumbent upon the Complainant to prove that the doctor was negligent in the line of treatment that resulted in the loss or damage. Therefore, entirety of the foregoing discussion we are of considered view that, not to fix any liability upon OP -1. As, we find there was a breach of duty by OP -1 who is a Pathologist, performed USG which amounts to deficiency in service. It is a breach of duty ''''per se actionable ''''. Therefore, Dr. Sushma (OP -1) deserves for imposition of penalty; to stop such practices and to protect the prospective patients who will approach her in future.

IT is quite apparent that, it is the failure of Regulatory bodies like MCI or the Health enforcing agencies like DHO/DGHS should lay down certain guidelines to protect the interest of Doctors and Patients also.

THEREFORE , entirety of the our discussion, we direct the OP -1 to pay Rs.20,000/ - as a compensation to the Complainant within 90 days, otherwise it will carry interest @ 9% p.a. till it ''s realization. We grant liberty to the Complainant to seek redressal from MCI or any appropriate Regulatory Body in this case, if so advised. There is no order as to costs.