SANDEEP SARKARAppella vs EKO X-RAY CLINIC

THIS is a complaint under Section 12 of the C.P. Act, 1986 filed by Shri Sandeep Sarkar, hereinafter referred to as the complainant against the O.Ps. named above praying for compensation to the tune of Rs. 10 lakhs on the following grounds.

ON 11th January, 1995 he suddenly suffered a severe headache and unbearable pain in the eyes and took medicine as prescribed by his family physician. But his condition worsened as his left eye started drooping and within 4/5 days it completely closed. His doctor then referred him to one Dr. Dipesh Mandal (Neuro) who advised a C.T. Scan. But nothing was found in the scan. Then his doctor referred to him to another neuro-surgeon, the O.P. No. 3 who diagnosed as virus infection and treated wrongly. His pain continued to be unbearable. His family then took him to a third Neuro-surgeon named Dr. Abhijit Chatterjee, the O.P. No. 2. He immediately advised MRT Angiogram. He had this test at the Eko X-ray Clinic at Chowringhee Road. But the Radiologist of that clinic misinterpreted the findings given by the machine and reported that there was no Aneurysm in the bran, when it was evident from the MRI that it was positive. The plate along with the report of the Radiologist was placed before Doctor Abhijit Chatterjee (O.P. No. 2) who relying upon that report gave the verdict that there was no Aneurysm. The report and the plate were also shown to the O.P. No. 3, Dr. Durga Roychowdhury, who too ruled out that there was any Aneurysm. He went a step further and told that his (the complainants) condition was improving while actually his condition was getting worse. This indicated how negligent and callous this doctor was. It was then that his family members decided that he should be treated at Vellore and they took him to Vellore Christian Medical College and Hospital and a team of Neuro Doctors after seeing those reports and X-ray plates diagnosed Aneurysm in the brain and held that an operation was an immediate necessity, as it was already quite late. He had to go through a series of tests which cost him hugely. ON 13th March, 1995 he was operated upon in the brain. The doctors told that though he had survived, his left eye would take an indefinite time to open and there was no guarantee that he would get back his normal vision in the left eye, because he had gone there very late. They also told that he had two Aneurysm in his brain and only one had been operated, but in view of his weak state of health the second one could not be operated at once and it would be operated later on. Till today his left eye has not completely opened and he had to go to Vellore again after 6 months of his operation for a check-up thereby incurring a huge expenditure again. He is now handicapped in the matter of looking after his business and in consequence he has had to suffer pecuniary losses. All this is the result of negligence on the part of the above mentioned doctors (O.P. Nos. 1 to 3) and hence he has filed this complaint for an order directing the O.Ps. to pay a sum of Rs. 10 lakhs by way of compensation. All the three O.Ps. filed written statements denying the material allegations of the complaint. But the O.P. No. 1, the Eko X-ray Clinic, did not ultimately contest, neither filing any affidavit on evidence, nor advancing any argument. The O.P. No. 2, Dr. Abhijit Chatterjee, has filed affidavit on evidence and his Counsel has advanced argument whereas the O.P. No. 3 filed affidavit on evidence as well as written argument.

The main points canvassed by the complainant may be summarised as follows: (1) neither of the two doctors (O.Ps. 2 and 3) ordered four vessels Angiography; (2) they failed to correctly read the plate of Angiogram held by the Eko X-ray Clinic (O.P. No. 2); (3) the O.P. No. 1 gave a wrong and misleading report of Angiography test giving rise to all the sufferings of the complainant; (4) had the complainant not rushed to Vellore hospital and was not operated upon, he would have lost eyesight of the other eye also. According to him such failures and lapses on the part of the O.Ps. constituted deficiency of service for which they are liable to compensate him.

IN his affidavit of evidence the O.P. No. 3, Dr. Durgadas Roychowdhury, has stated on affirmation that Angiography is a very risky procedure and must not be done unless there is absolute necessity and when there is no active haemorrhage in brain, 4 vessels Angiography is better done 6 weeks after the onset when spasm of vessels subsides and chances of detecting small Aneurysm is better. This O.P. has further stated that in the first prescription he advised pain killer medicine, but in the second prescription that medicine was omitted as he had no pain and this was a pointer that improvement had started. Then this O.P. states that in the complaint as filed by the applicant it has been mentioned that he went to Vellore for treatment in Semi-conscious state, but the report of Vellore hospital clearly reveals that the patients mental function was normal which means that he was fully conscious at the time of admission and it was further evident from the records of Vellore that he had only left third nerve paralysis and all other functions were normal and there is no mention anywhere that the condition of the patient deteriorated. The O.P. No. 3 continues to assert that the report of Vellore clearly shows that several clinical tests were conducted there which included MR Angiogram and in that test the report was that only a small lesion (abnormality) was found in the brain. It is stated in this affidavit that lesion does not mean Aneurysm and to detect the said abnormality or lesion 4 vessels Angiography was done at Vellore which could detect Aneurysm. The O.P. No. 3 continues stating that from the report of Vellore Hospital it is revealed that the operation was not done immediately, but the patient was put under observation and several clinical tests were held to diagnose the exact state of his ailment and he was operated after 11 (eleven) days and this fact falsifies the complainants allegation that he had an Aneurysm and an operation was an immediate necessity and it shows that no imminent danger to his life was there. Again the Vellore report further shows that he had no visual impairment and his visual acuity and field of vision were normal and this suggests that the allegation of the complainant about the loss of normal vision is hypothetical and baseless.

IT is conspicuous to note that against such positive statements made by the doctor on affirmation the complainant has remained silent and has not made any attempt at controverting them by a counter affidavit being affirmed by any medical expert. The result is that this evidence on affidavit of the O.P. No. 3 remains unchallenged and undisputed and there is no reason why they should not be accepted as correct. More important statements made by this O.P. No. 3 in his affidavit are as follows: At the particular moment when the patient came to him for treatment he treated him mainly for relief of the symptoms only, but the patient conducted the treatment according to his own sweet will only, inasmuch as he did not visit this O.P. No. 3 on the next appointed day and no evidence has been produced by him to show what treatment he underwent during the period from 10th February, 1995, i.e., the date on which he visited this O.P. No. 3 for the last time to the 2nd March, 1995, i.e., the date of admission at Vellore. This doctor (O.P. No. 3) has further stated on affirmation that had he (the complainant) reported to the doctors at Calcutta diligently and honestly, the doctors could have advised him to undergo test including 4 vessels Angiogram at the appropriate time. We are of the opinion that these contentions of this O.P. remain totally unanswered and unshaken are quite solid and sound and dispel all doubts from our minds to enable us to come to the finding that the charge of the complainant that there was negligence on the part of the doctors in rendering medical service to him is unfounded.

SO far as the other doctor, the O.P. No. 2, is concerned, his evidence on affidavit also remains uncontroverted. He has stated therein that on clinical examination and examination of C.T. Scan report he advised the complainant for bed rest and prescribed certain medicines suspecting that the complainant might be suffering from intracranial Aneurysm and to rule out his suspicion he suggested urgent M.R.I. Angiogram keeping in mind the safety of the patient, such test being totally non-invasive. After such tests held he examined the plate and report on 24th January, 1995 and found no conclusive evidence on Aneurysm. He then keeping in mind that the complainant might require four vessels Angiography test in future, he advised him bed rest and prescribed some anti-inflamentory medicines and asked him to report after 10 days. But the complainant did not report back to him.

IN our opinion these unchallenged statements of this O.P. No. 2 are extremely vital. The complainant did not allow the doctor to complete his course of treatment. On 24th January he went to this doctor for the last time and did not care to comply with his instruction to visit him again after 10 days. As per the case of the complainant himself he went to Vellore and got himself admitted in that hospital on 22nd March, 1995, i.e., after more than a month and a week from the date on which he was treated by this O.P. No. 2. Mr. Seal raises the question as to how under such circumstances this doctor can be held responsible. The complainant did not follow the advice of this doctor. He did not come to him after 10 days. INstead, he went to Vellore Hospital after about 40 days. Mr. Seal contends that during this period his condition might have worsened and he might have developed Aneurysm which was not detected initially by this O.P. and this long gap remaining unexplained it cannot lie in the mouth of the complainant to hurl the allegation that he misread of misinterpreted the findings of the MRI Angiography-test held at the Eko X-ray Clinic. The O.P. No. 2 has further stated in his evidence on affidavit that since the complainant never reported to him after 24th January, 1995, he had no opportunity to treat the patient any-further and if he chose to have the treatment from any other specialist, and that too, after about 5 to 6 weeks, he should blame himself and not any doctor for delay. The O.P. No. 1 also states that on examination of MRI Angiogram the Vellore Hospital could point out only a lesion and not an Aneurysm and the finding of Aneurysm could be given by that hospital only after having four vessel angiogram and although the complainant was admitted in such hospital at vellore on 2.3.1995 his operation was held only on 13.3.1995 and this fact indicates that the operation was far from being an immediate necessity as advocated by the complainant.

We are to repeat that such statements or opinion coming from the pen of the O.P. No. 2, who is himself a medical expert, having not been subjected to any criticism of challenge whatsoever nor having been countered by any opposite opinion given by any other medical expert, their authenticity or credibility remains unassailed as a piece of evidence. On a perusal of the Discharge Summary it is found that it has been opined by the doctors at Vellore that the third nerve paralysis of the patient is expected to improve. This shows that the allegation of the complainant that he will not improve after treatment is not correct. Similarly his other allegation that he has become a handicapped person as a result of his allegedly delayed treatment also has no legs to stand upon as there is absolutely no evidence adduced by the complainant in support of such a story.

IT is a settled principle vide Hunder v. Honey, (1955) SLT 213, that in order to prove negligence or deficiency in service on the part of a doctor it must be shown that he has failed to exercise reasonable skill and care measured by the standard of what is reasonably to be expected from an ordinarily competent practitioner of his class. If he does so, he will have discharged his duty and cannot be held answerable, even if the treatment has untoward results. This principle was followed in Ghisa Ram v. Dr. P.K. Bansal, reported in IV (2003) CPJ 299=Consumer Law Decisions. Reports Vol. 2, P-347. IT has been further held that the medical man is not an insurer and he does not warrant that his treatment will succeed or that he will perform cure. The degree of care that a doctor is to exercise is that which is expected to be exercised by a normally skilful member of the profession in the actual circumstances of the case in question and it is not every slip or mistake which imputes negligence. Mr. Seal has cited as an authority in support of the contention of the O.Ps. discussed above a medical treatise styled as Magnatic resonance Imaging of the Brain and Spine, Second edition. Edited by Scott. W. Atlas Lippingcott Raven wherein it has been enjoined as follows: As number of studies have evaluated the role of M.R.A. in the identification of intracranial Aneurysm (74, 143-145). The best data suggest that approximately 90% of angiographically confirmed intracranial Aneurysm more than 3 mm in diameter may be identified through the use of M.R.A. when state-of-the-art post-processing is used. M.R.A. may be used screening asymptomatic populations at increased risk for intracranial in Aneurysms (Table 4). Limitations remain, however, including the depiction of complex and small Aneurysms, accurate definition of Aneurysm morphology (a key indicator or prior rupture) and in particular the reliable identification of lesions with turbulent intraluminal flow. As is the case with SAH, however. It is clear that MRI/MRA cannot be used to exclude definitively the presence of an Aneurysm (72) and currently has no role in the initial evaluation of patients with either acute SAH or acute third nerve palsy, situations in which cathater Angiography is required.

HAVING regard to the entire discussion made above we are to hold that the complainant has failed to establish by means of cogent evidence that there was any medical negligence or deficiency of service on the part of the O.Ps. as alleged in the complaint and in the result, therefore, we are to conclude that the complaint is without any merit and deserves dismissal. Accordingly, it is ordered that the complaint be dismissed on contest against the O.P. Nos. 2 and 3 and ex parte against the O.P. No. 1. But, however, considering the circumstances we do not pass any order as to cost. Complaint dismissed.