Manisha Dewan vs KAILASH KUMARI

THIS revision petition has been filed under Section 21(b) of the Consumer Protection Act, 1986 against the impugned order dated 7.11.2012, passed by the Haryana State Consumer Disputes Redressal Commission (for short ''the State Commission'') in F.A. No. 1832/2010, Kailash Kumari v. Manisha Dewan & Ors., vide which, while dismissing the appeal, the order dated 18.11.2010 in consumer complaint No. 121/2008, passed by the District Consumer Disputes Redressal Forum, Panipat, dismissing the said complaint, was set aside. Brief facts of the case are that the complainant/respondent No. 1, after having suffered from pain in her upper abdomen, got herself checked up from Dr. S.K. Chirvi of Chhabra Hospital, Panipat, who suggested that ultrasound examination should be done from petitioner/OP No. 1 Dr. Manisha Dewan. The said ultrasound examination was done on 28.3.2008 and Dr. Manisha Dewan gave the following report: "Gall bladder is of normal size. Wali is not thickened, Echogenic calculus of size 18 mm is seen at the gall bladder fundus. Common bile duct is not dilated. It shows echofree lumen and measures 4.2 mm in calibre."

AFTER examining the report, Dr. S.K. Chirvi advised operation, saying that there was stone in the gallbladder, which was required to be removed. The said operation was done on 4.4.2008 by Dr. Chirvi at Chhabra Nursing Home, during which the gall bladder was removed, but no stone was found in the gall bladder. Dr. Chirvi also consulted another Doctor Dr. D.K. Singh and both of them were of the opinion that the ultrasound report was not made properly. The complainant filed the consumer complaint in question, seeking direction to the petitioners/OPs to pay medical expenses of Rs. 50,000 and a sum of Rs. 5 lakh as compensation for mental and physical harassment and irreparable loss, involving the removal of gall bladder. In reply, the petitioners/OPs stated that there was no negligence on their part. The ultrasound examination was not the only criteria for suggesting surgery. Moreover, the ultrasound examination should be repeated for all situations on the day of surgery, as there is a possibility that the so -called stone could dissolve, break and pass into the intestine. Further, as per the operation notes, gall bladder was adhered to the duodenum and colon at the time of operation, meaning thereby, that it was a diseased gall bladder.

THE District Forum, after taking into account the evidence of the parties, dismissed the complaint, saying that medical negligence was not established in this case. However, in appeal filed before the State Commission, the said order was reversed and the State Commission concluded that there could be fault in the functioning of the machine and they awarded a compensation of Rs. 20,000 to the complainant to be paid by the Doctor and Hospital and the Insurance Company jointly and severally. It is against this order that the OP Doctor and the Hospital have filed the present revision petition.

AT the time of hearing before us, the learned Counsel for the petitioner stated that Dr. S.K. Chirvi who performed surgery upon the patient, has stated that it was a case of infectious gallbladder and hence, the same had to be removed. The petitioners had not committed any negligence, while making the ultrasound report. There was no evidence to conclude that the ultrasound machine was defective. In fact, there could be a possibility that the said stone could have been dissolved or moved into the intestine, since the surgery was done 7 days after the ultrasound examination. Further, during the course of evidence, the petitioner had examined Dr. Ashutosh Kalra, Consultant General Surgeon who deposed that the patient was diagnosed for cholecystitis (inflammation of gall bladder) and the gall bladder had marked adhesions with colon and duodenum (parts of small and large intestine). Another witness Dr. Ashwani Khurana, Consultant Ultrasonologist and Radiologist stated that there are several conditions that can mimic calculus in the gall bladder lumen. The removal of gall bladder had, therefore, nothing to do with the report given by the OPs. The learned Counsel has drawn attention to an order passed by the National Commission in FA No. 23/99, Sanjeev Sodhi (Dr.) & Ors. v. Darshan Kaur, as reported in : II (2007) CPJ 257 (NC) : 2007 (1) CPC 294. It has been held in this case that the stones in the gall bladder could have passed out within a period of 18 days, after which the surgery was done. The learned Counsel for respondent, however, stated that there was no documentary evidence to prove that it was a case of infectious gall bladder. It was clear from the report of Dr. Chirvi that ultrasound report given by the petitioner was not correct. Had this report been not there, there would not have been any necessity to remove gall bladder from the patient. The order passed by the State Commission was, therefore, in accordance with law and should be sustained.

WE have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us.

DR . S.K. Chirvi from Chhabra Hospital, Panipat, who performed surgery upon the complainant has stated in his report, "No stone was found in GB lumen. CBD was palpated but no calculus was found in CBD also. There was no evidence of cholecystocolec or any other fistula with GB". The said Doctor in his statement before the District Forum clearly stated that the gall bladder was very much infectious and its removal was imminent in all circumstances. It is made out, therefore, that even if the report given by the petitioner was not correct, the gall bladder was infectious and as per Dr. Chirvi it had to be removed. Dr. Ashwani Khurana and Dr. Ashutosh Kalra have also stated in their statements that gall bladder had marked adhesions with colon and duodenum that could mimic the gall stone on sonographic examination. The petitioner has also taken the plea that the surgery was performed seven days after the ultrasound examination and there could be a possibility that the stone got washed away during this period. In the order of the National Commission in "Sanjeev Sodhi (Dr.) & Ors. v. Darshan Kaur (supra), it has been stated that the stone could have disappeared within a period of 18 days, after which surgery was performed.

THE State Commission in their impugned order have observed that there may be fault in the functioning of the ultrasound machine. However, this version of the State Commission is not substantiated from any evidence on record.

IN view of the discussion above, the charge of medical negligence against the petitioners does not stand proved from any cogent evidence, rather the version given by the petitioner is sufficient to establish that the petitioners were not negligent in performing their duties in any manner. The order passed by the District Forum, therefore, reflects a correct appreciation of the facts and circumstances on record. In view of discussion above, this revision petition is allowed and the impugned order passed by the State Commission is set aside. The order passed by the District Forum is upheld and the consumer complaint stands dismissed. There shall be no order as to costs.