V.N. Mishra, Member:
1. The present complaint has been filed by Rajeev Kumar against Dr. U.K. Biswas, Dr. Hari Ram Yadav and Dr. Dilip Choudhary of Darbhanga to have wrongly treated him for gastriculcer for a long time when he was actually suffering from appendicitis as later on detected at Patna. He had unnecessarily to spend a large sum in pursuing a wrong treatment. He would have lost his life had he not been shifted to Patna for treatment. He has prayed for compensation of Rs. 6.00 lakhs for expenditure incurred by him during the treatment including professional loss and also for mental agony.
2. The fact of the complaint case in short is that the complainant consulted Dr. U.K. Biswas, opposite party No. 1 on 17.11.1994 for severe pain in abdomen who referred him to Dr. Hari Ram Yadav, opposite party No. 2, for barium meal X-ray and to Dr. Dilip Choudhary, opposite party No. 3 for ultrasound scanning besides advising him for T.C. and D.C. of WBC, routine test of urine and stool. The complainant alleged that the opposite parties wrongly diagnosed him for gastric ulcer and enlarged liver. On the basis of wrong investigation reports the opposite party No. 1 kept on treating him for a long time for a disease he was not suffering from. When his condition started deteriorating he came over to Patna where he consulted Dr. R.N. Gupta Associate Profession of Medicine in P.M.C.H. who referred him to a surgeon. He thereafter consulted Dr. Moti Lal Singh, Surgeon at Patna who advised him for operation of appendix after necessary investigation. He was operated upon by Dr. Nirmal Kumar Sinha on 10.9.1995 at Patna. The three Doctors at Patna, according to the complainant, clearly indicated that it was not a case of either gastric ulcer or enlarged liver but it was appendicitis for which he was operated upon. He is now all right after following right line of treatment. He was thus subjected to harassment, mental agony and unnecessary heavy expenditure because of wrong treatment by the opposite parties for a long time. The complainant being a lawyer, claims to have suffered professional loss also. He has prayed for award of compensation of Rs. 6.00 lakhs. Photocopies of relevant documents were filed alongwith the complaint petition.
3. The opposite parties denied the allegation in their show cause on affidavit stating that the complainant consulted opposite party No. 1 on 17.11.1994 with complaint of pain around umbilicus for last one year alongwith loose bowel and heart burn. On physical examination the opposite party No. 1 found tenderness just below umbilicus. There was no pain, no tenderness, no muscle guard, no lump in the right iliac fossa which may be a symptom of appendicitis. Further the complainant had no history of nausea, vomitting, anorexia and constipation. He rather complained of loose motion. The opposite party No. 1 in order to correctly diagnose the ailment referred him for investigation. The ultrasound scanning was performed by opposite party No. 3 who found enlarged liver. The total leukocyte count was 8,800 which was not raised above the normal level. In appendicitis total leukocyte count may be higher than 10,000 cells per cmm. in 90% cases (Bailey Love). His differential count was normal. Routine examination of stool showed several ova of round worms. Routine test of urine was normal. He therefore at that stage excluded the possibility of appendicitis. Further, barium meal X-ray done by opposite party No. 2, showed an ulcer crater at the lesser curvature in the proximal pyloricantrum of stomach indicating gastric ulcer. Gastric ulcer was also suggested by opposite party No. 2 in his report of barium meal X-ray. On the basis of the above investigation reports, the complainant was treated for gastric ulcer, enlarged liver and round-worm infestation and accordingly medicines were prescribed for him and diet was advised for 1½ month on 18.11.1994. The complainant thereafter never consulted the opposite party No. 1. The documents enclosed with the complaint petition do not indicate either if he consulted any other doctor during the period. The complainant after seven and a half months consulted Dr. R.N. Gupta for pain in abdomen which indicates that he was cured of all previous ailments reported to opposite party No. 1. His allegation of no improvement in his condition and that he was under state of mental shock because of wrong diagnosis and treatment is proved totally baseless and false as because he had not consulted him or any other Doctor for seven and a half months if his troubles still persisted. He has not levelled any allegation against opposite party No. 1 of any side effect, reaction or any other injury with respect to the medicines prescribed by opposite party No. 1. He contended that the complaint, in view of the above facts, is frivolous and vexatious which may be rejected with cost of the opposite parties as per provision of Section 26 of Consumer Protection Act, 1986.
4. The complainant, on affidavit, filed rejoinder to the show cause of the opposite parties stating that it is false that he had ever complained about loose bowels and heartburn. He merely had complained about pain in stomach, constipation and nausea. He was advised to continue the same medicines for seven months on the basis of wrong and arbitrary investigation reports prepared carelessly and in hot haste. The complainant would have lost his life had be not gone to Patna to consult Dr. R.N. Gupta, physician who immediately advised him to consult a surgeon. He consulted Dr. Moti Lal Singh who detected it to be a case of appendicitis which was operated upon. He thereafter was cured. He would have been spared of unnecessary expenditure, pain and mental agony had the opposite party No. 1 referred him to a surgeon in the beginning itself as was done by Dr. R.N. Gupta in Patna. He further filed supplementary rejoinder on affidavit on 23.1.1998 reiterating that he kept on visiting opposite party No. 1 who advised him to continue the same medicines prescribed on 18.11.1994 and take spasmoproxivon in case of severe pain. Then he got no relief at Darbhanga with the prescribed medicines for seven months and when his condition further deteriorated, he was shifted to Patna. He disputed the statement of the opposite parties that his ailment of gastric ulcer was cured with the medicines prescribed by opposite party No. 1. In fact he had no gastric ulcer at all. Had he sufferred from gastric ulcer and in case if it was cured with the treatment of opposite party No. 1, the scar should have been detected in the endoscopy report at Patna. He further averred that the prescription of Dr. N.K. Sinha dated 8.9.1995 clearly indicated "A diagnosed case of recurrent appendicitis". Photocopy of the above prescription was filed on affidavit. Dr. Sinha in his prescription has noted in history of the case as "Pain in abdomen-2 years-last attack-2 months ago". He also filed affidavit on 4.3.1998 in support of his complaint petition enclosing the complaint petition.
5. The Counsels on behalf of all the parties were heard. The Counsel on behalf of all the opposite parties argued that the complainant has filed a new complaint petition on affidavit on the day of argument (4.3.1998) which deserves to be ignored. The original complaint is not supported by any affidavit and therefore it may be rejected. On perusal of the record it is found that the so called new complaint petition is only the copy of the original complaint petition earlier filed and no new facts are incorporated in it. It was pointed out by the learned Counsel for the complainant that the original complaint petition was not on, affidavit and hence copy thereof supported by an affidavit has been filed. The objection of the opposite parties therefore on this count is thus found not sustainable.
6. It may be noticed that it is admitted that opposite party No. 1 had examined the complainant on 17.11.1994 who referred him to opposite party No. 2 for barium meal X-ray and opposite party No. 3 for ultra sound scanning. It is also admitted that opposite party No. 2 after barium meal X-ray of the complainant gave his. finding as gastric ulcer. It is also admitted that opposite party No. 3 in ultra sound report gave the finding of "enlarged liver". Opposite party No. 3 had not indicated anything about appendix while scanning the pelvic area. He could have given his finding if it was normal or also if it could not be detected at all. The opposite party No. 1 hopefully treated the two reports to be truthful and therefore, based on the above two reports, routine stool test, also on the basis of history of the complainant that he had loose bowel and heart-burn, and also on the basis of his finding that there was no lump in the right iliac fossa and other accompanying symptoms treated him forâ
(a) gastric ulcer
(b) enlarged liver
(c) and round worm infestation
The opposite party No. 1 has made truthful note of his finding in physical examination on the prescription pad on 17.11.1994 that there was tenderness below umbilicus which might have been indicative of some problem in appendix. But since the complainant did not report about nausea and constipation and no lump in the right iliac fossa could be felt in physical examination and also since ultrasound report of the pelvic area did not disclose any abnormality of appendix, opposite party No. 1 excluded the possibility of appendix at the first instance. Since the complainant had reported heart-bum and loose bowel and also because opposite party No. 2 had suggested gastric ulcer on the basis of barium meal X-ray, the opposite party No. 1 appears to have started treating the complainant for gastric ulcer, enlarged liver and round worm infestation. He prescribed medicines for 1½ months and also gave instructions for his diet. Although the complainant complained, on affidavit, that he visited opposite party No. 1 several times after 1½ months with complaint of abdominal pain who advised him to continue the same medicines. This allegation was denied by the opposite party No. 1 on affidavit. The allegation of subsequent consultation with opposite party No. 1 is also not borne out by the prescription. The treating physician appears to have made truthful notings of the history given by the complainant and finding of physical examination with a diagram on 17.11.1994. The complainant has not given any satisfactory explanation as to why opposite party No. 1 had not made any recording on the prescription pad when he visited the opposite party No. 1 several times after one and half months from the date of first consultation, specially when he made such elaborate notings on 18.11.1994 even in respect of diets. On the other hand it is found that the complainant, after seeing the show-cause of the opposite parties, filed rejoinder and supplementary rejoinder raising fresh allegations that he had nausea and constipation and he did not have heart burn and loose bowel. The complainant had the prescription of the opposite party No. 1 with him, a copy of which has been filed by him with the complaint petition. But he had not alleged that wrong recording had been made by the opposite party No. 1 in respect of history of his case. Reasons for not raising these relevant points in the original complaint petition have neither been explained in the rejoinders nor during pleading by the complainant. It therefore obviously can be concluded that such allegations were only afterthought of the complainant taking clue from the written statement of the opposite parties.
7. Further, in case if the opposite party No. 1 was giving him verbal advice of continuing the same medicines prescribed without recording his advice on the prescription pad, he should have objected to such unhealthy practice on the part of the opposite party No. 1 in the second or third consultation atleast. The complainant being a lawyer could afford to obtain second opinion of some other Doctor when his trouble kept on recurring during the period without any improvement with the old medicines prescribed on 18.11.1994 especially when opposite party No. 1 was not giving any advice in writing. Apparently this was not done. Medicines prescribed for treating the ailments of gastric ulcer, enlarged liver and round-worm infestation have been claimed by opposite party No. 1 to be appropriate. The complainant has also not disputed this. Inference therefore drawn by opposite party No. 1 that the complainant's gastric ulcer was cured appears plausible and credible.
8. There was no tenderness in right iliac fossa when examined by opposite party No. 1 on 17.11.1994. He had no complaint of fever also. But Dr. R.N. Gupta at Patna after examination on 11.7.1995 found that there was tenderness in RIF. He had fever also. These symptoms were indicative of appendicitis which after investigation were confirmed. The complainant however argued that had he had gastric ulcer and was cured with the medicines prescribed by opposite party No. 1 as claimed by him, then scars of the cured ulcer could have been noticed in the endoscopy conducted at Patna. The endoscopy report of upper G-l given by Raj Lakshmi Nursing Home mentions that there was no scar. He therefore reiterated that he had not been suffering from gastric ulcer at all rather he had in fact been suffering from appendicitis only as may be evident from Dr. N.K. Sinha's prescription (copy filed). This point was not clarified by the opposite party Nos. 2 and 3 even during the pleading. The complainant had alleged in the original complaint petition and also in his rejoinder that opposite party No. 2 and opposite party No. 3 had given wrong and arbitrary investigation report prepared in hot haste. The above two opposite parties have not repudiated the allegation. Opposite party No. 2 has not explained for the benefit of the Commission as to why scar of the ulcer could not be detected in the endoscopy at Patna although scar could or could not have been possibly detected. Further endoscopy at Patna had not primarily been done to find out scar. Opposite party No. 3 too has not similarly clarified as to why his finding about appendix could not be given in the report of scanning of pelvic area although it is notoriously difficult, at times to locate appendix in ultra sound scanning if there is no lump in the right iliac fossa.
9. It is not disputed however that the complainant was operated upon for appendicitis at Patna. He was thereafter cured. He avers that he had appendicitis even on 17.11.1994. Had the opposite party No. 3 conducted ultra sound scanning properly, it could have been detected. Also had he been referred to a surgeon then itself, he would have been spared a lot of problems and expenditure. It is true that tenderness below umbilicus might be indicative of possible appendix problem. But the ultrasound report given by opposite party No. 3 did not indicate anything about appendix problem. The opposite party No. 1 would have hopefully got investigated appendix problem also had the complainant consulted him after one and a half months. But the complainant never turned up to consult him as per the prescription. May be that the complainant might have had appendicitis also on 17.11.1994. But opposite party No. 1 was handicapped in diagnosis of appendicitis because of ultrasound report given by the opposite party No. 3 for pelvic area and also because the symptoms apparently did not fit well with the story of appendicitis at that stage. Opposite party No. 1 thus does not deserve to be charged for misdiagnosis in the fact of circumstances of the case. Apparently he was not careless and negligent in treating the complainant. The Supreme Court in the case of Laxman Balkrishna Joshi v. Trimbak Bapu Godbole and Anr., reported in 1969 (1) SCR 206 has held that "The practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires". The opposite party No. 1 has evidently exhibited reasonable degree of care and competence in handling the complainant's case.
10. It is found that the opposite party No. 2 and opposite party No. 3 have not effectively defended themselves against allegation of the complainant although based only on presumption. The complainant also has not brought on record any such documentary evidence which could falsify the two investigation reports. Although all the opposite parties had jointly repudiated the allegation of the complainant in the complaint petition but there is no specific assertion that the two reports were based on actual barium meal X-ray and ultra- sound scanning respectively in reply to the points raised in the rejoinder of the complainant.
11. In view of the above discussion we hold that the complainant has failed to establish the charge of negligence or carelessness on the part of the opposite party No. 1. No compensation therefore can be allowed to him from opposite party No. 1. The treating physician, opposite party No. 1, had considered the investigation reports furnished by opposite parties 2 and 3 as credible and had used the same in diagnosing the disease. But the opposite parties 2 and 3 have not repudiated the allegations brought against them. Lack of due care therefore on the part of opposite party No. 2 and opposite party No. 3 is attributable to them. Though the complainant has claimed rupees six lakhs as compensation from the opposite parties jointly, he has not given the basis for calculation of the said amount. Furthermore, separate amounts have not been claimed as compensation from each of the opposite parties. The details of expenses incurred by the complainant in his treatment have also not been given by the complainant. In view of what has been pointed out above the ends of justice will be met if a token amount of Rs. 250/- (two hundred and fifty) is allowed to the complainant to be paid by opposite parties 2 and 3 jointly. Accordingly opposite parties 2 and 3 are directed to pay a token compensation of Rs. 250/- to the complainant within one month from the date of receipt of this order failing which they shall be liable to pay interest thereon at the rate of 15% per annum from the date of filing of the complaint petition.
The complaint petition is partially allowed to the extent indicated above.
There is no order as to cost.
Complaint partly allowed.