BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ADDITIONAL BENCH, MANGALORE
Dated this the 18th May 2017
PRESENT
SRI VISHWESHWARA BHAT D : HON’BLE PRESIDENT
SRI T.C. RAJASHEKAR : HON’BLE MEMBER
ORDERS IN
C.C.No.174/2014
(Admitted on 20.05.2014)
Mr. Manoj Vishwanatha Shetty,
S/o Vishwanath Shetty, of age 30 years,
Kavoor, Mairodi Road, Gandhinagar,
Mangalore.
(Advocate for the Complainant: Sri DS)
VERSUS
1. Authorised Signatory,
Hospital Administrator,
A.J. Shetty Hospital and Research Centre,
Kuntikhana, Mangalore.
2. Dr. Ramesh Pai,
A.J. Shetty Hospital and Research Centre,
Kuntikhana, Mangalore.
…..........OPPOSITE PARTIES
(Advocate for the Opposite Parties No.1 & No.2: Smt. LCH)
ORDER DELIVERED BY HON’BLE PRESIDENT
SRI VISHWESHWARA BHAT D:
The above complaint filed under Section 12 of the Consumer Protection Act by the complainant against opposite parties alleging deficiency in service claiming certain reliefs.
The brief facts of the case are as under:
The complainant states from 4.3.2011 to 16.3.2011 was treated as inpatient at opposite party No.1 hospital in connection with the abdominal pain since a day with a history of nausea and with complaint of burning micturition. He was readmitted on 11.4.2011 for stent removal and the stent was removed and he was treated by Dr. S P Shenoy. On 13.3.2011 complainant was subjected to URs and stent was removed on 1.4.2011 under local anaesthesia. He further claims from 20.10.2013 till 23.10.2013 he was hospitalized for low grade fever with chills, in the morning which progressed to high grade fever by afternoon with the complaint of headache for 5 days with fever and vomiting. He was readmitted as inpatient with the complaint of fever on 8.12.2013 to 12.12.2013 at opposite party No.1 hospital and diagnosed as Hbs Ag (Positive), Malaria Vivax (++++) with the chief complaints being fever with chills. Headache and body pain and an episode of vomiting. Chest x ray showed normal study, Hbs Ag: Positive, Psmear mentions as leukopenia. This fourth discharge summary dated 08.12.2013 and oddly revealed therein under the investigation as follows:
8/12/2013 Elecholytes (Na.K.cl)
Sodium: 27 mE Q/L
Potassium: 3.9 mE Q/L
Chloride: 101 mE Q/L
Hbs Ag test
HIV (spot test) Negative
HCV spot: Negative
Hbs Ag Elisa. Negative.
2. He further claims that on coming to know complainant being afflicted with HIV and HBs Ag from opposite party No.2 the complainant became highly depressed and it was verily a traumatic experience and nightmarish had undergone and such an experience that had sapped his strength, mental stability and self confidence. When complainant informed about this his wife she told him that she had no illicit sexual nexus with any other person and how could complainant be afflicted with HIV and HBS Ag if he did not have any illicit sexual nexus with any other women. Thereby he further contend when his wife, family members, friends and other kith and kin started virtually avoiding him and he has been treated like a pariah which added injury to insult and positively unbearable and culminated ultimately the complainant developing suicidal tendencies. As seen from the discharge summary dated 6.4.2014 from opposite party No.1 hospital it is clear that complainant attempted to commit suicide by consuming insecticide which has been admitted by opposite party No.1 hospital as complainant having consumed insecticide super fighter at around 6.15 P.M on 06.04.2014 and presented with a complaint of vomiting 3 4 episodes and epigastric burning.
3. In fact on 6.4.2014 complainant had attempted to commit suicide and was admitted to opposite party No.1 hospital the investigation reflected under annexure No.6 indicates:
Hbs Ag Spot Serum Result
Hbs Ag Spot Serum Non reactive
HCV spot serum Non reactive
HCV Spot Non reaction
HIV spot serum
HIV spot Non reactive.
4. The discharge summaries annexure 5 & 6 reveal that complainant was not suffering from any Hbs Ag and HIV, both opposite party No.1 and No.2 stringently require to be held accountable for providing medical treatment without conscious involvement, application of mind as opposite party No.2 for lack of competence and expertise to treat the patient was not able to treat the complainant in terms reveals a breach of duty and having treated the complainant recklessly and neglectfully as having been afflicted with Hbs Ag and HIV. The complainant had to spend an amount of Rs.10,163/ towards medical treatment at opposite party No.1 when on hospitalization on 06.04.2014 to 08.04.2014. The repo as per annexure having No.6 and No.7 revealed as negative. Both annexure 6 and 7 having straightaway signified under the final diagnosis of annexure 5 & 6 as Malaria Hbs Ag wrongfully and moreso gone to the extent of falsely reporting to the complainant that he was afflicted with hepatitis B as well as AIDS when he was to his utter consternation when he was suffering only from Malaria Vivax. Hence seeks relief claimed in the complaint.
5. Opposite party NO.2 in the written version contends he is not aware of the case to the complaints and complainant was admitted to opposite party No.1 hospital from 4.3.2011 to 16.03.2011 and also for treatment from 31.3.2011 to 1.4.20014 opposite party No.2 has not treated him and as per hospital records on that occasion Dr. S P Shenoy has treated the complainant with due care. Even during hospitalization from 20.10.2013 to 23.10.2013 opposite party No.2 had not treated the complainant. On 8.12.2013 complainant was again admitted to opposite party No.1 hospital in the General Medicine Department and was presented with complaint of fever with chills. Several investigation/medical tests including blood and urine analysis showed HCV Spot and HIV Spot test were found negative. When on 8.12.2013 HBsAG Elisa test was done it was found positive and noticed it jaundice. Whenever HBs Ag test is done for patient with master register maintained is positive. Hence the discharge summary dated 12.12.2013 mentioned as Malaria HBsAg. Hence the allegation has been strangely and oddly reflected etc. are false and baseless. The variations are common in case of patients having malaria fever in the result it is only after doing HBsAg Elisa test the complainant was given necessary treatment. The allegation knowing fully well that HIV Spot test is found negative unnecessarily he is making false statement that is found positive. The allegation that complainant became highly depressed and he thought that he will not live longer and that he was continually looked down upon by his legally wedded wife, his parents, his friends etc. are false. The complaint is filed without knowing the facts that HBsAg spot test is only a screening test and all reactive samples should be confirmed by confirmatory test. It is likely sometime false positive results can obtained due to the presence of other antigens or elevated levels of RF factor which occurs in less than 1% of the samples tested. It is no nexus between his earlier treatments/medical reports in the opposite party No.1 hospital and his attempt to commit suicide. It is also claim that complainant has filed the present complaint against opposite parties after a lapse of 2 years and delay in filing the present complaint and there is no deficiency in service by the opposite parties. Hence seeks dismissal of the complaint.
6. Another detailed rejoinder was also field wherein complainant reassert his assertion of the complaint.
7. In support of the above complaint Mr. Manoj Vishwanatha Shetty filed affidavit evidence as CW1 and was Cross examined and produced documents got marked at Ex.C1 to C9 as detailed in the annexure here below. On behalf of the opposite parties Dr. Ramesh Pai (RW1) Professor and Head of the Department of Medicine, also filed affidavit evidence and answered to the interrogatories served on him and produced documents got marked at Ex.R1 to R3 as detailed in the annexure here below.
8. In view of the above said facts, the points for consideration in the case are:
- Whether the Complainant is a consumer and the dispute between the parties?
- If so, whether the Complainant is entitled for any of the reliefs claimed?
- What order?
The learned counsels for both side filed notes of argument. We have considered entire case file on record including evidence tendered by the parties and notes of argument of the parties. Our findings on the points are as under are as follows
Point No. (i): Affirmative
Point No. (ii): Negative
Point No. (iii): As per the final order.
REASONS
9. POINTS No. (i): That on various occasions complainant was treated in opposite parties No.1 hospital as inpatient wherein there are almost equal number of blood analysis lab reports of the complainant these are undisputed by opposite parties. Hence there is consumer and service provider relationship between the parties. Of course opposite party No.2 was not the treated doctor on first two hospitalization of the complainant. Suffice to mention that in one of the discharge summary issued by opposite parties pertaining to complainant there is mentioning of finding of HIV as positive though all other reports mentions was as negative. There is a serious dispute on this count between the parties as contemplated under section 2 (1) (e) of the C P Act. Hence we answer point No.1 in the affirmative.
10. POINTS No. (ii): It is not necessary for us to discuss all the points and all the hospitalization and also the detail of the treatment of the complainant. The only issue is regarding to Ex.C4 is discharge summary issued by opposite party No.1 hospital is shown hospitalization pertaining of complainant from 8.12.13 to 12.12.13 it mentioned the diagnosis as HBs Ag positive malaria (Vivax+++). Ex.C5 is discharge summary in computer printout also for the period from with the date of admission as 8.12.2013 in this document under the subheading investigations thus:
Investigations: 08/Dec/2013
Electrolytes (Na, K, Cl)
Sodium 127mEq/L
Potassium 3.9mEq/L
Chloride 101mEq/L
Hbsag Spot test
H I V (Spot Test) Negative
H C V Spot Negative
On the reverse side of this document in respect of discharge summary shown as malaria HBs Ag.
11. The learned counsel for complainant relies on Ex.C5 wherein on second page the diagnosis show as malaria HBs Ag. This HBs Ag stands for hepatitis surface antigen which according to the medical science so far it is considered as no cure. No other discharge summary given by complainant to show any report of positive result for HIV. Ex.C2 is a discharge summary of complainant for hospitalization from 31.3.11 to 1.4.11 shows HIV HBs Ag HCV negative.
12. The contention of complainant is that after his discharge from hospital with report Ex.C5 he was looked down by his wife his parent and also his close friend and relatives. Ex.C6 is another discharge summary pertaining to complainant with date of admission date 6.4.2014 and discharge dated 8.4.2014 it shows in reverse side of the report under investigations Hbsg spot serum as non reactive HCV and HIV spot Serum non-reactive.
13. Thus it is clear the one report in respect of Hepatises B showing the result positive in respect of complainant and another report subsequently showing it negative both issued by opposite party No.1. The learned counsel for complainant argued that unnecessary even though complainant as hepatitis B was wrong diagnosis as Hbs Ag positive and he was also be medicated for the same. However subsequent on hospitalization it was reveal that there is no Hbs Ag was negative by the same hospital. There was no document produced by complainant as to blood analysis from any other hospital lab.
14. In fact it is the case tried to make out by opposite party on present of the case the result showing HbsAg as even without there is no Hepatitis B.
15. The question for consideration is when the complainant has made out by report of blood analysis from other labs how he concluded that he was not afflicted with hepatitis B in his case that he was looked down by his wife his parent and his close friend and relative suspecting him having extra marital relationship though the said words is not used by the complainant. We should not forget that even though complainant has alleged in the complaint and fortunately for him the analysis report as blood as per Ex.C6 06.04.2014 showed negative even though HbsAg it is quite possible as for as HBs Ag even as seen from 8.12.2013 at Ex. R2 HbsAg spot H I V Spot test and H C V spot test shown as negative and HbsAg Elisa test also show as negative. But in the diagnosis column under the heading diagnosis on the reverse of the Ex.C5 is mentioned as Malaria HbsAg. Thus it is clear from the brain reading on both side of the Ex.C5 and R2 are mentioned the same. What complainant ought to have done under such circumstances is to seek clarification at opposite party No.1 and especially with doctor opposite party No.2 who treated complainant. Evidently this was not done by him. Whatever information the complainant confirmed with legally wedded wife or his parents or his relative or friends without seeking full information has to be construed as complainants own making.
16. In any case as to the complainants wife, parent and close friend and others looking down to complainant is concerned none of them were examined by complainant to substantiate his allegation on this count. In the circumstances we are of the view that merely because complainant had consumed pesticide is no justification to draw inference that his legally wedded wife and other looking down to complainant. In the circumstances we are of the view complainant failed to establish that there is an intentional false report and that report about blood analysis and that led to him to attempting suicide. As such we are of the firm view that complainant failed to prove deficiency in service on the part of the opposite parties to complainant. Hence we answer point No.2 in the negative.
17. POINTS No. (iii): Wherefore the following
ORDER
The complaint is dismissed.
Copy of this order as per statutory requirements, be forwarded to the parties free of cost and file shall be consigned to record room.
(Page No.1 to 12 directly typed by steno on computer system to the dictation of President revised and pronounced in the open court on this the 18th May 2017)
MEMBER PRESIDENT
(T.C. RAJASHEKAR) (VISHWESHWARA BHAT D)
D.K. District Consumer Forum D.K. District Consumer Forum
Additional Bench, Mangalore Additional Bench, Mangalore
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 Mr. Manoj Vishwanatha
Documents marked on behalf of the Complainant:
Ex.C1: I Discharge Summary
Ex.C2: II Discharge Summary
Ex.C3: III Discharge Summary
Ex.C4: IV Discharge Summary
Ex.C5: V Discharge Summary
Ex.C6: VI Discharge Summary
Ex.C7: Bill issued by the Opposite party
Ex.C8: Bill issued by the Opposite party
Ex.C9: Bill issued by the Opposite party
Witnesses examined on behalf of the Opposite Parties:
RW1 Dr. Ramesh Pai, Professor and Head of the Department of Medicine
Documents marked on behalf of the Opposite Parties:
Ex.R1: Certified copy of the statement of the complainant Before the Kavoor Police Station, Mangalore
Ex.R2: Hospital records for the period from 8.12.2013 to12.12.2013
Ex.R3: Copy of the Master Register.
Dated: 18.05.2017: PRESIDENT
