THE KERALA STATE CINSUMER DISPUTES REDRESSAL COMMISSION, VAZHUTHACAD, THIRUVANANTHAPURAM APPEAL 770/2001 JUDGMENT DATED: 16.1.2009 PRESENT SRI.M.V.VISWANATHAN : JUDICIAL MEMBER SRI.M.K.ABDULLA SONA : MEMBER Dr.T.K.Yesodha, : APPELLANT Managing Partner, Sri Krishna Maternity Nursing Home, Chinmaya Mission Colony, Vidyanagar, Kasargod. (By Adv.M /S Kurian Vallamattom) Vs. Ambujakshi, : RESPONDENT W/o Vijayan, Chodala.P.O., Madipady Kasargod. JUDGMENT SRI.M.K.ABDULLA SONA : MEMBER This appeal prefers from the order passed by CDRF, Kasargod in the file of OP.64/2000 dated 6.7.2001.The appellant is the opposite party in the above OP. The brief of the case is that the complainant is pregnant and was undergoing treatment in the hospital of the opposite party, that on 11.2.2000, she was subjected to blood test to detect HIV reaction as a part of the routine blood test, that the report submitted by the laboratory attached to the hospital reveal that the complainant is reacting to HIV, when this facts were immediately disclosed to the complainant and her husband and the laboratory report was handed over to the complainant, she was asked to vacate hospital immediately, since she is affected by the disease AIDS. It is further case of the complainant that on hearing this news herself and her husband developed adverse psychological impact, developed fear and started suspecting each other, that she being a pregnant woman completely collapsed hearing on the test report, that opposite party was not prepared to accommodate the complainant for further treatment, and that usual, which was admitted at the Govt. hospital, Kasargod where a further test of HIV was undergone by the complainant at SB medical laboratory, Kasargod that it was reported that the complainant is not having HIV infection. As the test report revealed negative reaction, the clinical laboratory of the opposite party has not conducted proper test with due care and caution in a case of this type of disease and that the opposite party well aware of the psychological impact of test finding and those who have been tested and suspected diagnosis should not have been exposed to complainant without conducting confirmatory tests. The permission of the complainant to collect sample of blood for the HIV test should have been sought, the complainant’s identity and suspected diagnosis should not have been exposed, that delicate information should not have been disclosed publically, that written reports should have named by the member of staff in confidence, disclosure of reacting HIV news should have been followed with counseling, that the opposite party ought to have preferred for ELISA test on western blot test before disclosing the news to the complainant and that the tests were conducted by inefficient staff of the laboratory. Hence a lawyer notice dated 24.2.2000 was issued to the opposite party which was received by her on 25.2.2000 to which a reply was sent stating untenable contentions. Considering the gravity intensity and the psychological impact of disclosure of the disease AIDS in the present society, the after effect and subsequent recognition and reputation of the labeled AIDS patient in the society, the injury to the social, collateral and psychological characteristics of the complainant by disclosing a wrong diagnosis, The opposite party is liable for compensation of Rs. 1,00,000/- with cost of Rs.2000/-. The opposite party appeared and filed a very detailed written version before the Forum below. She contented that the Forum has no jurisdiction to entertain the complaint, that only criminal court are competent to consider the disputes, that the allegations are only for getting compensation from the opposite party and that the allegations that immediately after the test, they developed adverse psychological impact that the complainant collapsed completely that again HIV test was conducted at government hospital, that no proper test with due care and caution was conducted by the clinical laboratory of the opposite party, that report of the suspecting the diagnosis should not have been exposed to the complainant, that the opposite party was negligent, that the complainant’s identity and suspected diagnosis should not have been exposed and that the diagnosis was wrong since it was conducted by inefficient staff of the opposite party was absolutely false. The patient was referred to the hospital of the opposite party by Dr.Balakrishna, retired Superintendent of Community Health Centre Taluk Head Quarters hospital, that the complainant was brought to the hospital of opposite party on 11.2.2000 at 11.35AM that she was admitted in room No.102 as herself and her husband agreed to be in the hospital, that in the hospital pre HIV test, counseling was done and blood was obtained for serostrip HIV. The laboratory technician conducted the test with the due care and prepared the report, that the laboratory technician showed the report to the opposite party, directed him to hand over the same in a closed cover to the husband of the patient, that the husband of the patient was requested to deliver the report to Dr.Balakrishna and to seek further advise in the matter and as Dr.Balakrishna was not available, he returned to the hospital and requested for a discharge. The patient was discharged at 3.30PM on her request. The Serostrip HIV test is only a screening test that the opposite party did not disclose the contents of the report either to the complainant or to her husband, that in a case where HIV reactive was the result of such test further confirmatory tests such as ELISA or a western blot test ought to be conducted for confirmation, that neither HIV reactivenor HIV positive will conclude that any person is infected by AIDS, that facilities for confirmatory tests are not available in the hospital of the opposite party, that the diagnostic sensitivity and specificity of the Serostrip HIV 1and 2 are 99.68% sensitivity and 99.71% specificity that even in ELISA test, reaction can occur in rarest of rare cases, so there was no occasion for inefficient or improper test, and material uses for the test is Serostrip HIV 1 and 2 of saliva diagnostic system, USA marked zydus pathline, a division of Cadila Health Care Ltd. a famous drug manufacturing company, that every patient has a right to know the causes of his ailment and in the instant case, opposite party has not informed to the complainant the result of the test as the patient was referred by some other doctor and result was sent to him in a closed cover through the party. The blood was collected after necessary counseling. The complainant/patient had sent the reply notice. As per the letter dated 25.2.2000, the opposite party sought one month time to give the reply, but the complainant filed the complaint in hurry burry and that there is no basis for the amount claimed as compensation. For the above reasons it is prayed that the complaint be dismissed with compensatory costs that is the detailed defence of the opposite party filed before the Forum below. The Forum conducted very detailed trial and given all opportunities to both the complainant and the opposite parties to adduce their oral and documentary evidence. From the part of the complainant, the complainant was examined as PW1 and the husband of the complainant also cited as a witness and examined as PW2. In the other side Dr.P.K.Yasoda was cited and examined as DW1, DW2, DW3, DW4,DW5 are DWs are examined respectively. From the part of the complainant Ext.P1 to P7 were marked as documents. And the opposite party cited Ext.R1 to R11 were marked was documentary evidence. Forum below framed the following issues are points. 1) Whether the complaint is maintainable? 2) Whether the consent of the complainant was obtained before the blood was taken to the purpose of HIV test? 3) Whether pre counseling was done to the complainant by the opposite party or any medical practitioner authorised by her in this behalf before the blood was taken for HIV test.? 4) Whether after the result of the HIV test, the complainant was driven out from the hospital of the opposite party by disclosing the result as alleged? 5) Whether after the complainant on hearing the news that the result of HI test is positive developed psychological impact, fear and started suspecting each other as alleged? 6) Whether the HIV test was conducted and Ext.P1 was prepared at the hospital of the opposite party without care and caution as alleged? 7) Whether the complainant has sustained mental agony, hardships and financial loss on account of the acts of the opposite party as alleged? 8) Whether the complainant is entitled to compensation and if so, the quantum there off? 2. The Forum below correctly examined all the above raised points accordingly. The Forum below found that the DW1 herself has admitted that if a patient goes to know that she is affected by AIDS she will be desperate and no routine screening of HIV infection of all pregnant women and people for surgery is mandatory and DW1 has not taken any steps to get the result in Ext.P1 confirmed by confirmatory test and DW1 has stated that on hearing the news that complainant is affected by AIDS, she became panic and there is no hesitation to find that the complainant has suffered great mental agony, hardship and financial loss on account of the gross negligence and deficiency in service on the part of the opposite party. At present it is usual practice that whenever a patient approaches a hospital she or he is subjected to unnecessary test which are not even necessary to diagnose or to treat the disease but which are done only to collect money from the pocket. This cannot be allowed. The Forum below allowed the complaint with cost of Rs.1500/-. The compensation awarded by the Forum below is directed to pay Rs.20000/- and cost of Rs.1500/- within two months from the date of the receipt of the copy of the order. If the opposite party fails to comply with the above direction within the stipulated period, the amount on Rs.20000/- excluding the cost of Rs.1500/- will carry interest at the rate of 12% per annum from 24.2.2000 the date of demand till realization. 3. The appellant prefers appeal from this findings. The counsel for the appellant is present and there is no representation for the respondent/complainant. The counsel for the appellant vehemently argued on the grounds of the appeal memorandum that the allegation in the complaint was that, the respondent/complainant is pregnant she was under the treatment of the hospital of the appellant hospital, that on 11.2.2000 . She was subjected to blood test to detect HIV reaction, that the report submitted by the laboratory reveal that the respondent was reacting to HIV it was further alleged in the complaint that the result of the test was immediately disclosed to the complainant and her husband, she was asked to vacate the hospital immediately when she is affected by the disease AIDS. It was also alleged that the complainant and her husband on hearing the news developed adverse psychological impact developed fear and started suspecting each other. Thus she being a pregnant women completely collapsed hearing on the test report, when the appellant was not prepared for giving further treatment, she was admitted in the government hospital Kasargod. Further test conducted at SP laboratory reveal negative reaction to HIV. It was further alleged that no consent was obtained from the complainant before blood was taken for test and it was done by inefficient staff of the hospital. On the grounds of said allegation the poor complainant was filed claiming compensation for one lakh and cost of Rs.2000/-. The counsel for the appellant submitted that the order passed by the Forum below is against the law, facts and evidence and also contended that the Forum below has not considered the defence of the appellant that the complainant is not a consumer. It is also submitted that Forum acted illegally and discarding Ext.R1 documentary evidence and relying any oral testimony of PWs 1 and 2 to hold that no pre counseling was done by the appellant. In other words it is contended that the oral testimony of PWs 1 and 2 is nothing on a hearsay evidence. Forum also acted erroneously in drawing adverse inference against the appellants on the basis of Ext.R4 and R5 and it is submitted in the evidence that the patients mentioned Ext.R4 and R5 were not treated for AIDS and they were treated for some other diseases. The conclusion of the argument of the learned counsel is that the entire findings of the Forum below is based on mere surmises and conjunctures which are totally unsustainable in the eye of the law and the prior for the appeal to be set aside the impugned order passed by the Forum below. 4. We heard the detailed argument of the counsel for the appellant and this Commission carefully perused the lower court records and the entire evidence available in this Commission. The Forum below is having sole jurisdiction to try this case as per the provisions of the Consumer Protection Act so there is no question of the jurisdiction in this case only after accepting fee from the complainant, the opposite party gave the treatment we do not know how the appellant is raising such a contention. The government doctors are also coming under the Consumer Protection Act. It is a routine practice , blood will be taken for the purpose of HIV tests of the patients they admitted to the hospital for treatment, and before taking blood for HIV tests, pre counseling and post counseling will be done by the Medical officers concerned, that the test was conducted with due care and caution but in this case the consent of the poor patient was not obtained before taking the blood. It is a part of the precaution taken by all the medical officers in due course. There is a clear admission that the complainant/patient admitted for delivery in the hospital belonging to the opposite party on 11.2.2000. It is also admitted that blood of the patient/complainant was taken for the purpose of HIV test but the witness DW1 Dr.Yasoda who deposed that that the patients are admitted to the hospital, it is usual practice of taking blood for the purpose of HIV tests, then the another question is arising whether the HIV blood test is necessary for a pregnant women who admitted in the hospital for treatment. It is cited in an authoritative work, a medical text known as “ All you wanted to know about HIV and AIDS” edited by Dr.Savithri Ramaiah at page No.174, it is stated that HIV testing should not be done without informed consent of the person to be tested and that routine screening for HIV infection of all pregnant women and people needing surgery should not be done. Here the appellant have no case that in this case of a pregnant women HIV test is mandatory or not. According to her the blood was taken as the routine course which is the practice in the hospital when patients are admitted for conducting the HIV tests. No doubt that even HIV test done by the appellant is itself for exploiting the money of the poor women patient is an unfair trade practice and deficiency in service according to the provisions of the Consumer Protection Act. 5. The another contention was raised by the counsel for the appellant that the consent was already taken from the patient before the testing the HOV. The main allegation is that the blood test was itself defective. The appellant have no case that it is a negligence committed from the part of pathologist testing the blood of the complainant/opposite party. The Forum below correctly told that PW1 has stated that she was discharged from the hospital without her request and that one of the sisters in the hospital told her that she should vacate the hospital since the report is positive. PW1 has further stated that DW1 also told her and PW2 that they should vacate the hospital since the report is positive and that was the reason why, on the next day, PW1 was admitted in the Govt. hospital. PW2 would also say that when he went to the hospital of the appellant at about noon, he saw PW1 weeping by sitting on a bench outside the room, that PW1 told him that the sisters of the hospital informed her that she is suffering from AIDS, that she told him that the sisters informed her to pay the bill at counter and leave the hospital immediately and that when he went to the counter, they also told him that his wife is suffering from AIDS. The sisters of the hospital told him that PW1 is suffering from AIDS, that it was stated in the presence of 35 persons who were in the hospital at the time and that when PW1 was admitted in the Government hospital, Kasargod. No bed was given to her due the flashing of the news that his wife is having AIDS. The learned counsel for the appellant submitted that the appellant herself admitted in the Forum below that if a patient who comes to know that she is affected by AIDS she will be desperate and Ext.P1 confirmed by pre test at the hospital where facilitates the available and PW1 has stated that on hearing the news that she is affected by AIDS, she become panic and there is no hesitation to find that the poor patient suffered great mental agony, hardships and financial loss on account of the gross negligence and deficiency in service on the part of the opposite party. Any way it is proved that the appellant has restored to malpractice and providing improper test diagnoses and careless and negligent treatment to them. This is a private hospital collecting money from the poor patients and offering such a service without taking reasonable care and precautions. 6. In the book, “all you wanted to know about HIV and AIDS” edited by Dr.Savithri Ramiah (page No 91), it is observed that it is important to keep the HIV test result highly confidential. In the decision reported in Mr.’X’ v. Hospital ‘Z’(1998) (8) SCC page 296. It is clearly discussing the ethics and guidelines in connection with the medical practice “It is true that in the doctor-patient relationship, the most important aspect is the doctor’s duty of maintaining secrecy. A doctor cannot disclose to a person any information regarding his patient which he has gathered in the course of treatment nor can the doctor disclose to anyone else the mode of treatment or the advice given by him to the patient. It is a basic principle of jurisprudence that every right has a correlative duty and every duty has a correlative right. But the rule is not absolute . It is subject to certain exceptions in the sense that a person may have a right but there may not be a correlative duty…..Medical information about a person is predicted by the code of professional conduct made by the Medical Council of India under section 33(m) read with Section 20-A of the Act. Doctors are morally and ethically bound to maintain confidentially. In such a situation, public disclosures of even true private facts may amount to an invasion of the right of privacy which may some times lead to the clash of one persons’s “right to be left alone” with another persons right to be informed. In this case the poor complainant/patient is a pregnant lady who is not having AIDs, or in otherwords she is a totally innocent human being who was demarked by a modern system of treatment as an AIDs patient. In the normal case there is a practice that when AIDs is detected in any patient, proper counseling is provided to them to adapt to that reality. Sometimes an individual getting any information that she is an AIDs patient, she or he may commit suicide on that shock. In our social practice, not only the patient but also the entire village or that area will be isolated due to that reason. Our society is still not ready to accept a friendly approach towards the AIDS patients. But in this case she was not suffering from such a lethal disease and was wrongly diagnose due to which she suffered a lot. It is clear that deficiency in service and unfair trade practice has been committed by the appellant. 7. The Forum below correctly found that the appellant/opposite party is liable to pay compensation for unfair trade practice and deficiency in service. But the Forum below ordered the opposite party to pay a compensation of Rs.20000/- and a cost of Rs.1500/- alone to the complainant. The compensation claimed by the complainant is only one lakh. We cannot understand why the Forum below took lenient approach towards the appellant/opposite party regarding the quantum of the compensation. This amount of compensation is very less compared to the nature of the deficiency of service committed by the appellant/opposite party eventhough she is a practicing doctor. But there is no appeal filed by the complainant. In the circumstance we are not in a position to enhance the amount of the compensation. But we decide to modify the order passed by the Forum below. This Commission ordered the appellant/opposite party to pay a compensation of 20000/- to the complainant/respondent and a cost of Rs. 1500/- with carry interest at the rate of 25% per annum for the entire amount from the date of 24.2.2000, and also orders the medical council of India to take appropriate disciplinary action against the appellant who violated the professional ethics and the code of conduct. We also note that the appellant protected the pathologist working in her hospital who wrongly and carelessly conducted the blood test of the complainant. At present there is no law and Rules or regulations available to regulate pathological labs in our state. The Government is also directed to make necessary statutory regulations for the prohibition of unauthorised clinics and pathological labs equipped with unqualified persons. This is highly necessary to protect the interest of the consumer/patients. The Registrar is directed to sent the copy of the judgment to the Registrar of Medical Council of State and Center and to the Secretary of health services, Government of Kerala for appropriated actions. In the result the appeal is disposed with the above modifications. The respondent/complaint is absent in this commission. Due to this reason this Commission is not awarding any further cost to the appeal. The points are answered accordingly. SRI.M.K.ABDULLA SONA : MEMBER SRI.M.V.VISWANATHAN : JUDICIAL MEMBER
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