When we get some medical problem, Doctor advises for ultra sound report or ultrasonography to get to the correct conclusion as to the nature or cause of the disease. One may find several ultrasond clinics run by MBBS doctors or MD doctors and representing themselves as sonologists. even they have got licenses from the State Govts. to run those ultra sound clinics. A lay man under the impression that he is getting the investigations done from a competent sonologist gets the report after paying hefty sum of money. But when the patient is operated upon on the basis of that ultra sound report, some times doctor found that in fact the disease or complication reported in the ultrasound report infact does not exist. The reason that the said sonologist or ultrasound clinic owner may not be having required qualifications for the said purpose. Distt. consumer Forum Ferozepur (PB.)in a case of medical negligence has analyzed the true position as to who is qualified to practice ultrasonography. Kindly read the judgement and post ur views:
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, FEROZEPUR.
President : Shri Sanjay Garg
Members : S. Tarlok Singh &
Mrs. Meena Bishnoi
C.C. No.47 of 2008
Date of Institution: 28.1.2008
Date of Decision: 28.12.2009
1. Bachan Singh, aged 52 years, son of Gopal Singh son of Dulla Singh;
2. Amarjit Singh, aged 17 years (minor) son of Bachan Singh son of
Gopal Singh, residents of Bhairo Basti, Near Bikaneri Chungi,
Fazilka, District Ferozepur.
1. Punjab Health System Corporation,
2. Dr. Rajesh Sharma (Surgeon), Civil Hospital, Fazilka.
3. Delight Lab, Opposite Civil Hospital, Near Municipal Council,
Fazilka, District Ferozepur.
4. New India Assurance Company Limited, Divisional Office,
Ferozepur, through its Divisional Manager (insurer of opposite party No.2).
5. The Director, Health Service, Parivar Kalyan Bhawan, Sector 34-A,
6. Medical Council of
7. Medical Council of Punjab, S.C.O. No.25, Phase-I, Mohali,
8. State of
9. Dr. Pirthi Raj Bhadu, the then Senior Medical Officer, Fazilka, now at
Padampur, District Sri Ganganagar (Raj.)
10. Dr. Mrs. Raj Chugh, Chugh Ultrasound Scan and
Chugh’s Maternity and
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11. Dr. Monika Lab, Street No.6 A, Ganesh Nagar,
........ Opposite parties
Complaint under Section 12 of
the Consumer Protection Act, 1986.
* * * * *
For the complainants : Sh. R.K. Sachdeva, Advocate
For opposite party No.1, 5 & 8 : Sh. H.L. Chhabra, Advocate
For opposite party No.2 : Sh. R.K. Kakkar, Advocate
For opposite party No.3 : Sh. B.R. Arora, Advocate
For opposite party No.4 : Sh. Ashwani Sharma, Advocate
For opposite party No.6 : Sh. P.S. Saini, Advocate
For opposite party No.7 : N o n e
For opposite party No.9 : Sh. Pardeep Kataria, Advocate
For opposite party No.10 : Sh. S.P. Prinja, Advocate
For opposite party No.11 : Sh. Madan Lal Dixit, Representative
SANJAY GARG, PRESIDENT:-
Complainant Bachan Singh has filed the present complaint on behalf of himself and on behalf of his minor son Amarjit Singh against Punjab Health Systems Corporation; Dr. Rajesh Sharma, Surgeon; Delight Lab; New India Assurance Company Limited (insurer of Dr. Rajesh Sharma); Director Health Service; Medical Council of India; Medical Council of Punjab; State of Punjab through District Collector; Dr. Pirthi Raj Bhadu; Dr. Mrs. Raj Chugh and Dr. Monika Lab (herein after referred to as opposite party No.1 to 11, respectively). As per averments, the brief facts of the complaint are that Smt. Ajit Kaur, aged 40 years, wife of complainant No.1 noticed some bleeding in her vagina. So complainant No.1 got checked his wife Ajit Kaur from
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Dr. P.R. Bhadu on 21.5.2007 at
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14.7.2007. The said Dr. Mrs. Raj Chugh reported in her ultrasound report that there is significant degree of fluid seen in the abdominal cavity. The complainant alongwith his wife approached opposite party No.2 alongwith the said report, but opposite party No.2 told that there is nothing abnormal in the said report. But the complainant was not satisfied. Hence he approached Munjral Nursing Home, Fazilka. Dr. V.K. Munjral of the said hospital after going through the report, prescribed certain medicines and also sought detail of biopsy report. Complainant and his wife approached Dr. Rajesh Sharma for biopsy report as the same was allegedly handed over to him by opposite party No.3 (Delight Lab), but opposite party No.2 did not reveal the results of the biopsy report for the reasons best known to him. The complainant and his wife again approached opposite party No.2 Dr. Rajesh Sharma, who further referred them to P.G.I., Chandigarh vide reference letter dated 16.7.2007. As per procedure, the treatment of the said Ajit Kaur was started at P.G.I.,
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treatment taken by said Ajit Kaur from the doctor. The complainant alongwith his wife showed the said writing to the doctors at P.G.I., Chandigarh and after that the patient Ajit Kaur was admitted there as indoor patient on 3.8.2007.But the doctor at P.G.I., Chandigarh told the complainant that his wife is not going to survive and advised to take her to home and as such she was discharged on 8.8.2007 from P.G.I. and ultimately she died on 13.8.2007. It has been further pleaded that infact deceased Ajit Kaur had been suffering from minor uterine bleeding problem, but due to some negligence and wrongful surgery by Dr. Rajesh Sharma, she has lost her life. Opposite party No.3 the owner of the lab is also hand in glove with opposite party No.2. Had the biopsy report been supplied to the complainant in time, then perhaps the complainant would have been able to save the life of his wife. Pleading medical negligence on the part of opposite party No.2 and deficiency in service and unfair trade practice on the part of opposite party No.3, complaint was filed by the complainant against the Punjab Health Systems Corporation, Dr. Rajesh Sharma (Surgeon) and Delight Lab. Notice of the complaint was given to the opposite parties. Opposite party No.1 failed to appear and was proceeded against ex-parte vide order dated 16.4.2008. However, opposite party No.2 and 3 filed their separate written replies to the complaint. Parties led evidence. During the course of arguments on 22.5.2009, it was felt by this Forum that in the case in hand, negligence also seems to be on the part of ultrasonologists, who failed to notice carcinogenic growths in the body of patient Ajit Kaur. It was also suspected that even the doctors, who conducted the ultrasound on the body
C.C. No.47 of 2008 \\6//
of patient Ajit Kaur, were not so qualified to do so. As the question was of greater significance, so the following order was passed by the Forum on 22.5.2009:-
“Arguments heard. The main arguments of the counsel for
the complainant are that opposite party No.3 in connivance
with opposite party No.2 has concealed the Biopsy report
after the operation of the wife of the complainant. If the said
biopsy report would have been made available to the
complainant then he would not have been harassed and
humiliated at P.G.I. Chandigarh for the detection of the
decease from which his wife was suffering. After hearing
the counsel for the parties and after going through the file we
deem it necessary to summon the biopsy report from the
concerned lab at Bathinda so as to get to the correct conclusion
of the case. Biopsy report of sample of uterus & ovaries of
Smt. Ajit Kaur, 40, Female, which was sent to Dr. Monika’s
Lab Near Urang Cinema, Veer Colony,
Bathinda-151001 (Pb) on 28.5.2007 by opposite party No.3
namely Delight Lab opposite
Committee, Fazilka, entered at serial No.H/1324/07 dated
28.5.2007 in Dr. Monika’s Lab be summoned. During the
course of arguments, it has also come to the knowledge that
the doctors who are not specially qualified in Radiology/
Ultra Sonography are doing ultrasounds all over
C.C. No.47 of 2008 \\7//
Even at Government Civil Hospitals this job is performed
by doctors not having special qualification in this field. In the
case in hand there are two ultrasound reports. One done by
Pritvi Raj Bhadu M.D. Sonologist Senior Medical Officer,
Chugh M.B.B.S. DGO. It has also been brought into the
notice that the above said Dr. Mrs. Raj Chugh who is running
Senior Medical Officer,
any knowledge or special qualification in the field of Radiology and Sonography. It has also been brought into the notice that
the Punjab Government has made certain regulations vide which the doctors who have got training of ten days or a month have been authorized to conduct ultrasound sonography of the patient, whereas, the Medical Colleges are running special courses i.e. M.D. Radiography/M.D. sonography etc. However, the doctors having training of ten days or a month are treated equally competent by the government in comparison to the doctor having specific qualification in the fields of Radiology and ultra sonography. In our view such type of authorization is against interest of patient/consumer. So to arrive at a correct conclusion of the case in the above said matter, we deem it necessary that (a) the Director Health Services, Sector 34,
C.C. No.47 of 2008 \\8//
Punjab, Chandigarh (b) Medical Council of India, New Delhi, (c) Medical Council of Punjab, Chandigarh and (d) State of Punjab through District Collector, Ferozepur, (e) Dr. Pritvi Raj Bhadu the then Senior Medical Officer, Fazilka and (f) Dr. Mrs. Raj Chugh be impleaded as party to the present complaint so as to clarify their position/stand on the above said matter. Complainant is directed to file amended title within three days, thereafter notices be issued to the newly impleaded opposite parties for 10.7.2009.”
2. A copy of the order was sent to all the newly impleaded opposite parties. Thereafter, vide order dated 22.7.2009, an application moved by the learned counsel for the complainant for impleading Dr. Monika Lab, Bathinda was allowed. The complainant was also directed to file an amended complaint. Thereafter, copy of the amended complaint alongwith copy of order dated 22.5.2009 was again sent to all the opposite parties with a direction to explain their position in view of the observations in the order of this Forum dated 22.5.2009. Thereafter newly added opposite parties appeared and also filed their respective replies.
3. A common reply has been filed by opposite party No.1, 5 and 8 i.e. Punjab Health Systems Corporation; Director, Health Service and State of Punjab in which just the allegations levelled by the complainant have been denied and liability of opposite party No.1, 5 and 8 to pay any compensation to the complainant has also been denied. However, no submission or pleadings have been made in the said reply as directed by this Forum vide order dated 22.5.2009.
C.C. No.47 of 2008 \\9//
4. Opposite party No.2 Dr. Rajesh Sharma in his reply has pleaded that he is a competent and qualified surgeon and has earned appreciation from his seniors for his good work. He has conducted so many surgeries. In the year 2007 only, he has performed 399 major operations, 425 minor operations and 655 tubectomies. Out of these operations, 90 operations were of uterus removal. Pleading certain preliminary objections as to maintainability of the complaint etc., opposite party No.2 surgeon has further pleaded that opposite party No.2 conducted the surgery of removal of uterus and its appendages (ovaries) on the person of Ajit Kaur. However, the facility for conducting biopsy test is not available at
C.C. No.47 of 2008 \\10//
seeing another ultrasonographic report, she was advised to get herself checked from
5. Opposite party No.3 Delight Lab, in its reply, has pleaded that infact complainant No.1 had brought one sealed sample on 26.5.2007 for
C.C. No.47 of 2008 \\11//
conducting biopsy. Necessary charges were paid by complainant No.1 for the said test. The said sample was sent to Dr. Monika’s Lab, Bathinda (opposite party No.3). A report was received after 3/4 days, which was handed over to the complainant. Rest of the averments of the complaint not relating to opposite party No.3 have been denied.
6. During the proceedings of the case, learned counsel for the complainant moved an application for impleading New India Assurance Company Limited as opposite party, being insurer of opposite party No.2, which was allowed and as such New India Assurance Company Limited was impleaded as opposite party No.4 to the complaint.
7. Opposite party No.4 New India Assurance Company of Dr. Rajesh Sharma has pleaded that if this Forum finds opposite party No.2 negligent at any stage, the liability of the insurance company is limited to the extent of terms and conditions of the insurance policy. However, rest of the averments of the complaint have been denied.
8. Opposite party No.6 i.e. Medical Council of India has filed a detailed reply in response to order of this Forum dated 22.5.2009. In its written reply, the Medical Council of India has pleaded that the Medical Council of India is a statutory authority created and constituted by the Central Government under an Act of the Parliament namely Indian Medical Council Act, 1956. Under the said Act, the Medical Council of India has been given the responsibility of discharging the duty of maintenance of highest standard of medical education. It has been further pleaded that Hon’ble Supreme Court in case State of Kerala Versus T.P. Roshna, (1979) SCC 560 has observed as under :-
C.C. No.47 of 2008 \\12//
“The Indian Medical Council Act, 1956 has constituted
the Medical Council of India as an expert body to control
the minimum standards of medical education and to regulate
their observance. Obviously, this high powered council has
power to prescribe the minimum standards of medical
education. It has implicit power to supervise the qualifications
or eligibility standards for admission into medical institutions.
Thus, there is an overall invigilation by the Medical Council
to prevent sub-standard entrance qualifications for medical
Under Section 33 of the Medical Council Act, the Medical Council of India has been empowered with the prior approval of the Central Government to frame regulations for laying down minimum standards of infrastructure, teaching and other requirements for conduct of medicine courses. It has been further pleaded that in case of MCI Versus State of Karnataka, (1998) 6 SCC 131, the Hon’ble Supreme Court while holding that the regulations of the MCI are binding and mandatory, further held that all State enactments, rules and regulations framed by universities etc. in relation to the conduct of Medicine Courses, to the extent they are inconsistent with the Act and the regulations made there under by the MCI, are repugnant by virtue of Article 254 of the Constitution of India in as much as the Act is relatable to Entry 66 List 1 Schedule VIIth of the Constitution of India. The aforesaid ratio has been reaffirmed by the Constitution Bench of the Hon’ble Supreme Court in Dr. Preeti Srivastava Versus State of M.P. & Ors., (1999) 7 SCC 120. Apart from Section 33 of the Act, Section 20-A has been inserted in the Act w.e.f.
C.C. No.47 of 2008 \\13//
16.6.1964 whereby Medical Council is expressly authorized to prescribe standards of professional conduct and etiquette and a code of ethics for medical practitioners. These regulations are called Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002. In the said regulations, the duties and responsibilities of the Physician in general have been defined. Thereafter certain provisions have been made for taking action for violation of any regulation etc. Certain provisions of the regulations have been reproduced in the reply by the Medical Council of India. Under Regulation No.7.20, it has been mentioned that a Physician shall not claim to be specialist unless he has special qualification in that branch. In para 17 of the reply, it has been pleaded that for a person to claim to be sonologist or imaging specialist, he must possess a recognized postgraduate medical qualification under the specialty of Radio-Diagnosis. It has been further pleaded that to claim a specialist, a registered medical practitioner must possess a recognized postgraduate medical qualification in that modern medicine specialty. A registered medical practitioner possessing a recognized MBBS degree, is not permitted to represent to the patients that he/she is a specialist in a modern medicine specialty. It has been further pleaded that Medical Council of India received a representation from Sonological Society of India, New Delhi regarding “Protection of Rights of MBBS Doctors” and the matter was considered by the Ethics Committee of the Council at its meeting held on 15.9.2008 and it was decided that a draft should be prepared proposing a policy whereby MBBS doctors with proper structure training can be allowed to do Common Sonography practice. The proposal was to be placed before the Ethics Committee and thereafter to the
C.C. No.47 of 2008 \\14//
Executive Committee and then to the General Body of the Council. Ultimately, the proposal was placed before the Ethics Committee on 6.10.2008 and certain decisions were taken. Then the matter was forwarded to the Sub Committee and the Sub Committee in its meeting dated 2.3.2009 also considered the matter and submitted its report. Thereafter, the report was considered by the Ethics Committee of the Council in its meeting held on 31.3.2009 and 1.4.2009 and approved the same. As decision of the Ethics Committee was placed before the Executive Committee of the Council at its meeting held on 27.4.2009 and it was decided as under :-
“The Executive Committee perused the report of the Sub-
Committee and decision of the Ethics Committee and decided
as under :-
The Ultrasonography can be undertaken by a specialist
who possess postgraduate qualification in the speciality of Radio-
Diagnosis. However, specialist doctor in their speciality can also
undertake Ultrasonography for the purpose of certification subject
to the condition that he/she has undergone orientation training in
the Ultrasonography in the department of Radio-diagnosis in a
recognized medical institution under recognized medical teacher
for a minimum period of 6 months wherein he has not only
observed the procedure of Ultrasonography but also has undergone
hands on training to enable him to practice in the filed of Ultrasonography for the diagnostic purposes pertaining to his/her
C.C. No.47 of 2008 \\15//
9. It has been further pleaded that Sonology by itself is not a separate subject, rather, it forms a part of the overall training within the subject of Radio-Diagnosis as per Postgraduate Medical Education Regulations, 2000. It has been further pleaded that Sonology/ultrasonology is an integral part of the speciality of Radio-Diagnosis being a branch of the allopathic system of medicine and a person specially qualified in that field is entitled to do that practice or as a specialist. However, any liability of the Medical Council of India towards the complainant has been denied.
10. Opposite party No.9 namely Dr. Prithvi Raj Bhadhu, in his reply, has pleaded that he has passed his M.B.B.S. in the year 1975 from Rajasthan University, Jaipur and thereafter done his M.D. in S.P.M.(Special & Preventive Medicine) from Punjabi University, Patiala in the year 1990. Thereafter, he joined Punjab Civil Medical Services. During his post graduation, he has completed his thesis titled as “Ultrasound Study of Intra Uterine Fetal Growth” in relation to maternal nutrition. When he was posted as Medical Officer at Abohar, he used to conduct ultrasonography under the guidance of Dr. S.K. Juneja, Radiologist during his posting as Radiologist at
C.C. No.47 of 2008 \\16//
‘before or after conception’ and for regulation of pre-natal diagnostic technique has enacted an Act called “The Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994. Subsequently rules were framed under the said Act and as per Rule 3, he is competent to conduct Sonography. It has been further pleaded that there is no ambiguity or inadequacy in the ultrasonographic report given by him (opposite party No.9) on 21.5.2007 and any liability on his part has been denied.
11. Opposite party No.10 Dr. Mrs. Raj Chugh in her reply has pleaded that she is a competent doctor and is a registered medical practitioner. She has passed her Medical Graduation Examination in the year 1973 and thereafter she has passed examination of post graduate diploma in Gynaecology and Obstetrics from
C.C. No.47 of 2008 \\17//
there was no fault with her ultrasonographic report. Any liability on her part to pay compensation has been denied.
12. Dr. Monika Dixit of Dr. Monika Laboratory, Bathinda, opposite party No.11, has replied that she is not in any manner concerned with the treatment of the deceased Ajit Kaur. However, it has been further pleaded that she had received a specimen for conducting biopsy examination of Mrs. Ajit Kaur, 40 years female sent via Delight Laboratory (opposite party No.3) and referred by Dr. Rajesh Sharma, opposite party No.2 on 28.5.2007 and it was numbered as biopsy No.1324/07. On opening the biopsy container, it was realized that the biopsy was omitting foul smell and it was autolysed, thus, not suitable for further evaluation. Therefore, it could not be processed. A communication in this regard was sent to Delight Lab (opposite party No.3). No fee was charged as the biopsy test could not be conducted. It has been further submitted that the autolysis in biopsy samples happens when proper fixative is not present in the container. Any liability on her part has been denied and dismissal of the complaint has been prayed for.
13. Parties led evidence.
14. We have heard the learned counsel for the parties, representative of Dr. Monika opposite party No.11 and have also gone through the file.
15. The case in question involves two points -
(i) Whether there is any negligence/deficiency in service on the part of the opposite parties ? and
(ii) Whether a person without a specialized qualification in the field of Radiology/Ultrasonography is entitled to conduct ultrasonograph/ultrasound tests of the patients/consumers at large ?
C.C. No.47 of 2008 \\18//
16. So far the first point as to any medical negligence or deficiency in service on the part of the opposite parties is concerned, the learned counsel for the complainant submitted that deceased Ajit Kaur was suffering from minor problem of uterine bleeding, which is very common in the females. However, due to the wrong surgery and complications thereafter, the said Ajit Kaur has lost her life. He further submitted that even the ultrasonologist at
C.C. No.47 of 2008 \\19//
same was sent to Monika Laboratory and after the receipt of the report, the same was handed over to the complainant. When asked that as per reply of Dr. Monika, the sample sent by him had become autolysed and was not fit for conducting further investigation, as there was no preservative/fixative present in the container, then he answered that it might be due to negligence on the part of the complainant while bringing the sample to the laboratory of opposite party No.3. He might have opened the container and thrown away the fixative present in the container.
17. Learned counsel for opposite party No.1, 5 and 8 (Health authorities of the State) stated that he has nothing to submit and only the written reply filed by them be read.
18. Learned counsels for opposite party No.9 and 10 (ultrasonologists) submitted that there is no negligence on the part of their clients and they are competent to practice sonography under the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (herein after referred to as the Act of 1994).
19. Learned counsel for Medical Council of India submitted that only a specialist, having a post graduation in the filed of radiology, is competent to practice sonography. Neither opposite party No.1 nor opposite party No.10 were/are competent to practice ultrasonography.
20. Submissions have been considered.
21. So far the treatment by opposite party No.2 at
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menorrhagia has been defined as excessive menstrual bleeding. Thereafter, various causes for the said extra menstrual bleeding (menorrhagia) have been mentioned. Under the heading ‘Dysfunctional Uterine Bleeding’ (Ex.R-13), it has been mentioned that in a large number of patients, menorrhagia is not associated with any structural abnormality in the pelvis or with evidence either of general disease or endocrine disorder. If on clinical bimanual examination the uterus and appendages are found to be normal, the term dysfunctional uterine bleeding is used. Admittedly, the patient Ajit kaur was also diagnosed to be suffering from this type of dysfunctional uterine bleeding. Under the column ‘Treatment’ at page No.319 (Ex.R-16), it has been mentioned that firstly the conservative treatment is given to such like patients like Harmon Therapy, Radiotherapy etc., but another type of treatment, which is primarily known as Curettage, is also performed. It has been mentioned in Ex.R-16 that though there is no scientific explanation why curettage should ever benefit a patient with dysfunctional bleeding, though it does in 30 to 40% cases. Curettage should therefore proceed hysterectomy (removal of uterus) in almost in every instance.
22. Before discussing further, we may point out that curettage is generally a diagnostic technique by which the material is obtained by scraping contents/membrane of the uterine cavity. The said material so obtained after curettage is sent for histopathological examination.
23. In the medical literature produced on the file by Dr. Rajesh Sharma himself, it has been mentioned at page No.321 (Ex.R-18) that curettage is an essential diagnostic feature of all dysfunctional bleeding and,
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in a fortunate few, it will remove a possible organic cause such as an endometrial polypus. As a diagnostic step, it must never be neglected and a number of patients will be cured by curettage alone, however, unscientific this beneficial result may be. It is particularly important in the diagnosis of the unsuspected genital tract tuberculosis and, in the older patient, of endometrial cancer. Further by relying upon literature Ex.R-18, Dr. Rajesh Sharma (opposite party No.2) has pressed that at the time of removal of uterus, the doctor must remove the ovaries also so as to avoid cancer of the ovaries at a later stage. But from the perusal of the literature relied upon by Dr. Rajesh Sharma, it reveals that infact in the said literature, the removal of the ovaries has been discouraged. Rather, in the said literature, it has been mentioned that in case of removal of both the ovaries, there is small but significant risk of increased coronary and cerebral thrombosis and as such the practice of removal of ovaries at the time of hysterectomy is depreciated. Perhaps opposite party No.2 could not get the true meaning of the literature despite claiming himself to be a qualified surgeon. From the perusal of the literature, which has been relied upon and produced on the file by Dr. Rajesh Sharma himself, it is quite clear that 30 to 40% of the cases of dysfunctional uterine bleeding are cured by a simple process of curettage. Moreover, in our view, the ratio of percentage of 30 to 40% is not a low ratio. If such number of cases can be cured by simple process of curettage with, no severe side effects on the health of the patients, than it is surprising and shocking also as to why the doctor (opposite party No.2) has not attempted the simple process of curettage. Moreover, by way of curettage, the curetted material is sent for histopathological examinations
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from which existence of several other possible diseases, which can create uterine bleeding, can be ruled out, one of which is endometrial cancer, from which deceased Ajit Kaur was probably suffering. Even otherwise, it was incumbent upon the doctor to get this process of curettage performed, which is not only an aid to diagnosis, but itself proved to be curing factor in 30 to 40% cases of uterine bleeding. The doctor straightway performed the hysterectomy without attempting curettage, which according to literature produced on the file by the doctor, himself, is necessary in every instance before proceeding for hysterectomy (as per literature Ex.R-16). Had the doctor performed the curettage on the patient and sent the curetted material for histopathological examination, then her disease of Carcinoma would have come to the notice at the first instance and perhaps the life of the patient could have been saved.
24. Even otherwise, there is no evidence on the file that the doctor has prescribed any conservative treatment to the patient before proceeding for hysterectomy. Even as per the reply to the complaint by Dr. Rajesh Sharma, the patient was suffering from ovarian cancer, as detected by the doctors at P.G.I. The operation of patient Ajit Kaur was performed on 26.5.2007. As per CT Scan report dated 27.7.2007 done at P.G.I., Chandigarh Ex. C-45, patient Ajit Kaur was found to be suffering from :-
“B/L locally invasive pelvic masses likely ovarian
malignancy with ascites with peritoneal carcinomatosis
Multiple hepatic, splenic pulmonary metastasis
Hilar & mediastinal LAP
Bulky retroperitoneal pelvic and b/l inguinal LAP with
b/L HDUN due to upper ureteric encasement
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Portal and splenic vein thrombosis with extensive
collateralization and Splenomegaly”
which means as on 27.7.2007, the carcinogenic cells/disease had transferred to liver, spleen, intestine, lungs/chest/inguinal and other organs of the patient, which means that at the time of operation on 23.5.2007, the malignant cells/tumor of the ovary would have been quite visible at the time of performing oophorectomy (removal of ovaries). There is a lot of difference in features of benign tumor and malignant tumors, as defined in Text Book of Surgery by Somen Das. From the perusal of CT Scan report, it can be well assumed that at the time of surgery at Civil Hospital, Fazilka, the carcinogenic tumors/cells of the ovaries would have been quite distinguishable and visible to surgeon because within a span of two months only, the said carcinogenic cells of the ovaries, even after the removal of the ovaries, had travelled to various organs of the patient by way of metastasis. 25. However, we, being not medical men, to be more confirmed on the matter deemed it fit to call for a expert report from a specialist/radiologist of
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26. The report of Dr. Simmi Garg, Associate Professor of Radiodiagnosis, G.G.S. Medical College, Faridkot received, which for the sake of convenience is reproduced as under :-
“1. The ultrasonography done on 14.7.07 should have picked the abnormalities as detected by CT scan done on 27.7.07 If not all the findings of CT scan but major findings like pelvic masses, hepatic metastasis and enlarged lymphondes.
2. As regards the ultrasound report dated 21.5.07 the abnormalities could not have been detected as at that time the abnormalities might not have been overt.
3. At the time of surgery the surgeon could have noticed the gross abnormalities (if any) in the uterus and ovaries. However histopathlogical examination was very important.
Note should be made that as compared to ultrasongraphy, CT scan is a better imaging modality.”
From the perusal of the above said report, it is quite clear that the surgeon as well as Dr. Mrs. Raj Chugh were negligent in not noticing the carcinogenic growths in the ovaries and other parts of patient Ajit Kaur.
27. The other gross negligence on the part of the doctor and the Delight laboratory is that they did not care to properly place the removed contents in the container alongwith fixative/preservative for conducting biopsy/histopathological examination. The doctor and the Delight Laboratory are shifting burden on each other. It is commonly known that it is the duty of the doctor to place the removed contents i.e. uterus and ovaries in a container with fixative and after properly tightening/sealing and leveling
C.C. No.47 of 2008 \\25//
the container, hand over the same to the lab technician or the attendant of the patient, as the case may be. It is the case of the complainant that the lab technician was directly called to the hospital to whom the said sample was directly handed over. As we have discussed above that the doctor must have got noticed the malignant cells at the time of surgery. Even otherwise, he must have suspected for the same. It was very much necessary for the surgeon to insist for the histopathological examination of the biopsy, especially, when the patient was complaining of certain complications of the surgery. The complainant has asserted that he has paid the consideration for the histopathological examination of the biopsy, but he was never handed over the report. He has further asserted that the Lab Technician (opposite party No.3) had told him that the report has been directly handed over/disclosed to the concerned doctor. On the other hand, the doctor has pleaded that he had handed over the sample to the attendant of the patient and the attendant of the patient has not got conducted the histopathological examination and there is no knowledge to him as to what had happened with the said biopsy/histopathological report. A specific question was asked to Dr. Rajesh Sharma, who was present in the Forum, that as the patient was facing complications after the surgery, whether he enquired from the patient as to the result of biopsy histopathological examination, but he replied in negative. It is again a carelessness/negligent act on the part of the doctor. It is the case of the doctor that as the patient was not responding to the treatment, he had referred the patient to P.G.I.,
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facts itself speak that the doctor and the laboratory owner had the knowledge, either that the case of the patient was of carcinoma or at least they have committed negligence in sending the biopsy of the patient Ajit Kaur with proper fixative. The case of Doctor Monika Laboratory, Bathinda is that a biopsy sample was received from Delight Laboratory belonging to patient Ajit Kaur and referred to by Dr. Rajesh Sharma, but since the said sample was not fit for investigation, as the same was autolysed due to non-presence of proper fixative. Hence it was intimated to the Delight Laboratory within 3-4 days and even no charges were demanded, which means that the charges received from the complainant for conducting histopathological examination/biopsy examination have been retained by the Delight Laboratory opposite party No.3. It was very much in the knowledge of the Delight Laboratory as well as in the knowledge of the doctor that the biopsy examination could not be conducted due to negligence on their part i.e. firstly on the part of the doctor, who has not properly preserved the same with formalin solution. Thereafter on the part of laboratory, the patient and her attendant i.e. the complainant were forced to make rounds of the OPD ward of the P.G.I., Chandigarh time and again, which is almost 320 kms. away from the residence of the complainant at Fazilka. When after making several rounds of the OPD and undergoing investigations it was revealed at P.G.I. that Ajit Kaur was suffering from ovarian cancer, at that time the malignant cells/cancer had transferred to all parts of her body and it was too late to save her life and she was accordingly advised to wait for her death and was discharged on 8.8.2007 and who ultimately died on 13.8.2007.
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28. Even if we presume that the disease of patient Ajit Kaur was not curable, still if the doctor/surgeon at Civil Hospital, Fazilka would have got done certain investigations before surgery, as we have discussed above, and even after surgery, then perhaps her death could have been delayed and even at least she would have passed her last days peacefully instead of facing harassment both physical and mental at OPD wards of P.G.I. Even as per document dated 20.7.2007 Ex.C-39, which is an OPD Slip of the P.G.I., the doctors at P.G.I. had advised the patient to bring operation records, investigation records, history of complications alongwith histopathological examination reports with block slides (biopsy report alongwith slides). The facts are clear that the patient was making rounds of Delight Lab and Dr. Rajesh Sharma to provide him the record demanded by the doctors at P.G.I., but both opposite party No.2 and 3 refused to provide him the necessary details due to the reasons as mentioned above.
29. Now coming to the second question as to the competency of the ultrasonologist to do ultrasonography/ultrasound examinations of the consumers/patients at large, vide order dated 22.5.2009 State of Punjab, Medical Council of India, Medical Council of Punjab and the Punjab Health Systems Corporation, Chandigarh, through its Secretary were specifically asked as to the required qualification/competency of the doctors to do ultrasonography. Even during the proceedings, the learned counsel representing the State as well as Director, Health Services, Punjab was specifically requested to help and guide this Forum in this respect and to bring to the knowledge of this Forum the specific rules and regulations framed by the Punjab Government or the Department of Health Services as
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to the qualification and competency of various persons/doctors for the purpose of doing the ultrasonography/ultrasound. It was also specifically requested time and again that opposite party No.1, 5 and 8 should not take this case as a complaint against them in particular, rather for the greater common cause and for the purpose of preventing the hazards caused to the consumers/society at large at the hands of unqualified/incompetent ultrasonologist, they should positively come, plead and help this Forum in arriving at a correct conclusion to that aspect. But we regret to write here that despite specific orders, copy of which was sent to the above said authorities through post also and despite personal requests to their counsel, opposite party No.1, 5 and 8 failed to give any reply or their version on the said matter. The only pleading that has been made on behalf of opposite party No.1, 5 and 8 is that they are not vicariously liable for any act and conduct on the part of Dr. Rajesh Sharma (opposite party No.2). It is very shocking to realize the fact that how the health authorities of the State are concerned regarding the health and safety of the residents of
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to claim as a specialist, one must possess a specialized post graduation qualification in that field in which one claims to be a specialist. He further submitted that to claim to be ultrasonologist/ultrasonography specialist, one should possess a post graduation qualification in the field of radiology. He further submitted that ultrasonography is a part of the radiography course. He further submitted that any person, who is practising ultrasonography, who does not have a post graduation qualification in the field of radiography, is not competent to practise ultrasonography. He further submitted that on the representation of certain doctors, the Medical Council of India is considering the aspect of permitting certain specialists to do ultrasonography for the purpose of further diagnosis in the filed of that specialty only, subject to the condition that he has undergone Orientation Training Programme in Radiodiagnosis in a recognized institution for a minimum period of six months. It has been further submitted by the learned counsel for the Medical Council of India that the matter was firstly placed before the Ethics Committee and thereafter before the Sub Committee and the decision of the Sub Committee was placed before the Executive Committee on 27.4.2009. The decision of the Executive Committee then will be placed before the General Body of the Council and thereafter with the approval of the Central Government, the regulations will be framed in this respect. However, as on today even the specialists are not allowed to undertake ultrasonography even in their field of specialty. In view of the submissions and pleadings of Medical Council of India, it is shocking that the persons, who are not specially qualified in the field of Radiology, are practising ultrasonography and one would find ultrasound clinics here and
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there run by simple medical graduates or even in some cases without any medical qualification. When the law is that a specialist even in his field of specialty is not allowed to undertake ultrasonography, then perhaps the situation is very grim and of course the health authorities, who are supposed to be watch dog for the purpose of protection of citizens from the hands of unauthorized and unqualified medical practitioners, are keeping a blind eye on the matter.
30. Even at
“(Prithvi Raj Bhadu)
Senior Medical Officer,
31. Now coming to the point of authorization to practice ultrasonography under the Act of 1994, the Act of 1994 has been enacted by the Parliament for prohibition of sex selection and for regulation of pre-natal diagnostic techniques for detecting any type of abnormalities in developing foetus and for preventing misuse for sex determination leading to female foeticide.
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32. Under Section 2 (p) of the Act of 1994, the definition of sonologist is given as under :-
“(p) “sonologist or imaging specialist” means a person who
possesses any one of the medical qualification recognised under
the Indian Medical Council Act, 1956 (102 of 1956) or who
possesses a post-graduate qualification in ultrasonography or
imaging techniques or radiology.”
33. Under the said Act of 1994, certain restrictions/regulations have been imposed upon Genetic Counselling Centres, Genetic Laboratories and Genetic Clinics for conducting activities relating to pre-natal diagnostic techniques. It has been further provided that such genetic centres cannot employ or take services of a person, who does not possess the required qualification for the same.
34. The Central Government has framed Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Rules, 1996 (herein after referred as the Rules of 1996). Under Rule 3 (3) (1) of the Rules of 1996, qualifications have been provided for employing a person to set up a genetic clinic/ultrasound clinic/imaging centre. For the sake of convenience, Rule 3 (3) (1) is reproduced as under :-
“(3) (1) Any person having adequate space and being
(a) Gynaecologist having experience of performing at
least 20 procedures in chorionic villi aspirations per
vagina or per abdomen, chorionic villi biopsy,
amniocentesis, cordocentesis foetoscopy, foetal skin
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or organ biopsy or foetal blood sampling, etc., under
supervision of any experienced gynaecologist in
these fields, or
(b) a Sonologist, Imaging Specialist, Radiologist or
Registered Medical Practitioner having Post Graduate
degree or diploma or six months training or one year
experience in sonography or image scanning, or
(c) A medical geneticist,
may set up a genetic/ultrasound clinic/imaging centre.”
35. The above said rules appear to be inconsistent to the parent Act in view of the definition of Sonologist given under Section 2 (p) of the parent Act (the Act of 1994).
36. The learned counsels for opposite party No.9 and 10 have strongly argued that as their clients have got experience of more than one year in the filed, as such they are entitled to practice ultrasonography under Rule 3 (3) (1) of the Rules of 1996.
37. However, the learned counsel for Medical Council of India submitted that the experience of one year is required for a person who has post graduate degree or diploma or six months training in a medical college in the filed of ultrasonography. He further submitted that if a person who has not got the required qualifications/training starts practising ultrasonography illegally, his acts can not be justified, if he has continued to do so for more than one year.
38. However, without further discussion on the matter, one thing, which is apparent and most clear, is that under the Act of 1994 and the rules
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prescribed there under, Genetic Clinic/Ultrasound Clinic/Imaging Centres can be set up to conduct pre-natal diagnostic techniques such as to check any type of abnormality in foetus. Under the said rules, the persons, who have been granted licenses, are entitled only to conduct pre-natal diagnostic tests and nothing else. They have not been given authorization to conduct ultrasonography of other organs of the body or for any other purpose other than the pre-natal diagnosis.
39. Neither any license or authorization can be granted under the Act of 1994 or the Rules of 1996 nor the same has ever been granted to opposite party No.9 and 10 to practice ultrasonography as a specialist sonologist for conducting sonography procedures other than the pre-natal diagnosis/foetal growth etc. Even a perusal of license granted to opposite party No.10 Dr. Mrs. Raj Chugh, copy of which has been placed on the file, shows that she has been granted license to conduct ultrasound for pre-natal diagnostic tests only. However, in her pleadings, she has specifically pleaded that she is used to conduct ultrasound of abdomen, liver, gall bladder, spleen, both kidneys, abdominal cavity, urinary bladder, uterus and ovaries, appendicular area etc. Surprisingly there is no pleading that she is used to conduct pre-natal diagnostic tests, for which purpose only, she was granted the license under the Act of 1994 and rules.
40. The purpose of the Act of 1994 and rules is to impose certain restrictions relating to sex selection and detection so as to prevent female foeticide. It is sad to note that the unqualified doctors are trying to use provisions of the Act/Rules to justify their illegal practice in ultrasonography.
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41. The conclusion is that the persons, who have been granted licenses under the Act of 1994, are entitled only to conduct pre-natal diagnostic tests and nothing else. A specialist sonologist having special knowledge/qualification in the filed as discussed above, is only entitled to practice sonography for all other purposes.
42. Uner the Consumer Protection Act, 1986, the Consumer Forums established under the Act have jurisdiction to give directions and order to pay compensation to the opposite parties taking into consideration interest of consumers at large. It can also direct the opposite parties for the discontinuation of services which are hazardous or likely to be hazardous to life and safety of the public.
43. In view of what has been discussed above, this complaint is partly allowed with the following directions to the opposite parties :-
(i) Opposite party No.2 Dr. Rajesh Sharma is held negligent firstly for not conducting pre-surgery investigations and procedures like curettage and histopathological examination and then for not noticing/diagnosing the growth of carcinogenic cells in uterus/ovaries at the time of their removal and thirdly for failing to send the sample of removed organs for biopsy/histopathological examinations with proper fixative/preservative. So opposite party No.2 and the State of Punjab (opposite party No.1, 5 and 8) being vicariously liable for the act of opposite party No.2, are directed to pay to the complainant a sum of Rs.1,00,000/- as compensation. However, if the amount is paid by opposite party No.2, he will be at liberty to lodge a claim with opposite party No.4 and opposite party No.4 will decide the same, if
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opposite party No.2 lodged a claim with opposite party No.4, as per rules and regulations of the policy.
(ii) Opposite party No.3 Delight Lab, being negligent in sending the sample of biopsy without preservative and also being guilty of unfair trade practice and deficiency in service in not disclosing the results of the biopsy report is ordered to pay a sum of Rs.30,000/- to the complainants as compensation.
(iii) Opposite party No.9 and 10 Dr. Bhadu and Dr. Mrs. Raj Chugh are ordered to pay a sum of Rs.10,000/- each for practising ultrasonography for all type of investigations without being authorized to do so. State of
(iv) Opposite party No.1, 5, 8 and opposite party No.6 and 7 are further directed to take appropriate steps to prevent the unqualified persons from running ultrasound clinics or from practicing ultrasonography in civil hospitals as well as at private centers. They are further directed to take
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action as per rules against the persons who are practising ultrasonography without any specialization in the field and also to ensure that the persons who have been given licenses under the Act of 1994 would perform only pre-natal diagnostic techniques and nothing else unless otherwise qualified/authorized to do so.
(v) Complaint against opposite party No.11 is hereby dismissed.
44. With the above said observations, the complaint is partly allowed. Orders be complied with within 45 days of the receipt of the copy of the order. If the opposite parties failed to pay compensation, as ordered above, within the stipulated period, the opposite parties will be liable to pay an interest at the rate of 12% per annum on the compensation amount from the date of decision till realization. File be consigned to the record room.
28.12.2009 (Sanjay Garg)
Tags :Civil Law