Date of Filing : 29.09.2010
Date of Order : 16.06.2011
BEFORE THE II ADDITIONAL DISTRICT CONSUMER
DISPUTES REDRESSAL FORUM,
SESHADRIPURAM, BANGALORE – 560 020
Dated 16th JUNE 2011
PRESENT
Sri. S.S. NAGARALE, B.A., LL.B. (SPL) …. President
Smt. D. LEELAVATHI, M.A., LL.B. …. Member
Sri. BALAKRISHNA V. MASALI, B.A., LL.B.(SPL) …. Member
COMPLAINT NO. 2242 / 2010
Smt. Ranjini Sethuraman,
C/o. & D/o. Gopalakrishna,
#49, II Main Road, Kalyana Nagara,
Nagarabhavi Main Road,
Bangalore – 560 072. ……. Complainant
V/s.
Anand Diagnostic Laboratory,
#11, Blue Cross Chambers,
Infantry Road Cross, Shivajinagar,
Bangalore – 560 001. …… Opposite Party
ORDER
(By the President Sri. S.S. Nagarale)
This Complaint is filed by the Complainant u/s. 12 of the Consumer Protection Act, 1986.
The facts of the Complainant’s case are as under:
Complainant during 18th week of her pregnancy, as per the consulting Doctor’s advise, has undergone DS Screening test for the Baby inside her stomach at OP Laboratory. Her blood samples extracted on 28.04.2009 by the OP. The DS Screening test report given by the OP pertains to mother instead of baby inside her uterus. When she showed the said report to her Doctor, she told that it is not a required report as advised and also told that when Doctor writes DS Screening, any Diagnostic Laboratory will do the screening test for baby only. When her father contacted Dr. T.S. Sundereshan who signed the report, he gave evasive answers and after some discussions he offered to return the money collected for the said test and the same was refunded. The above test is important to know any physical defects & mental, Attention Deficit Hyperactivity Disorder (ADHD or AD/HD) is a neurobehavioral developmental disorder of the baby to give necessary treatment to cure the deficit in the initial stage itself. Hence, this test is advised during 18th week of pregnancy. This particular test must be done only one time during pregnancy between weeks 15 & 20 for better reliability result. When she came to know from her Doctor, she was very much afraid and psychological brain trauma took place about my child status of birth. Due to this, her health condition affected. Because of deficiency of service of OP, she was very much affected in her life time mental agony and scared of her baby’s any disorder in physical developments, hyperactivities, attentional and grasping capacity, boldness and learning ability in school age, speech & language fluency, overall neurobehavioral in his school age and in his career life. The negligent act on the part of the said Laboratory results in life long mental agony for herself, her husband & her family. Complainant has demanded the OP to pay compensation of Rs.3,00,000/-. Complainant has produced the reply given by Anand Diagnostic Laboratory and her comments against each of the points. Due to negligent act of the OP, Complainant and her family suffered for life time mental agony. Hence, she filed Complaint seeking compensation of Rs.3.00 Lakhs from the OP.
2. OP filed version stating that OP is an Institution that represents quality, good ethics & good laboratory medicine. Down’s Syndrome is a chromosomal abnormality that effects about one in 800 live births. This test generally done for pregnant women who are above 35 years in the 15th to 21st week pregnancy. The Screening Test on the blood sample collected from the mother, the diagnostic test is done on the amniotic fluid or by taking a small amount of tissue from the placenta of the fetus. Complainant approached OP on 28.04.2009 when she was in 18th week of pregnancy with a requisition from her Doctor for conducting the test described as D.S. Test. Since the requisition was not clear, clarification was sought by Dr. Jayaram, Pathologist. OP on the basis of the instructions of the Complainant conducted Chromosomal Analysis & test report was ready on 4th May 2009. The Complainant collected the report on 10.05.2009. Then the Complainant consulted her family Doctor with report who told that she was required to get a Down’s Syndrome Screening Test done which was mentioned in the requisition as D.S. Screening. But, instead, chromosomal analysis had been done. The Complainant’s father took refund of the money from the OP. Complainant had blessed with healthy child. Complainant vide Letter dtd. 16.05.2010 demanded Rs.3.00 Lakhs as compensation from the OP on account of mental agony. Complainant’s averments that she was mentally agonised is denied. The alleged deficiency in service has no relation whatsoever to the disorders listed by the Complainant. It is false that the OP provided deficient service. When OP did not conduct correct test, it could have been brought to the notice of the OP on issue of test report at which time the Complainant was still in her 19th week of pregnancy and Down’s Syndrome Screening would have safely done till the end of 20th week of pregnancy. For all the reasons stated above, the OP has prayed for dismissal of the Complaint.
3. Both parties have filed their affidavit evidence and produced the documents.
4. Arguments are heard.
5. Points for consideration are as follows:
(i) Whether the Complainant has proved deficiency of service on the part of OP?
(ii) Whether the Complainant is entitled for compensation?
(iii) If so, what would be the quantum of compensation?
REASONS
6. Complainant has produced requisition / prescription of Dr. Prema Krishnaswami. Bill / Receipt of OP has been produced to show that Rs.2,000/- was charged for the test. Complainant has produced Chromosomal Analysis report done by OP. Complainant has written letter to the OP on 16.05.2010 demanding Rs.3.00 Lakhs as compensation for mental agony and suffering. Copy of letter is produced. Complainant has sent another reminder letter dtd. 14.06.2010 to the OP and the same is produced. Complainant has produced copy of letter of OP Laboratory dated 16.06.2010 at Annexure-6. This letter of OP is deciding & decisive document for the purpose of this case. It is better to reproduce the letter of OP for better appreciation of the facts of the case.
To:
Mrs. Ranjini Sethuraman,
C/o and D/o. Mr. Gopalakrishna,
#49, 2nd Main Road, Kalyana Nagara,
Nagarabhavi Main Road,
Bangalore – 560 072.
Phone: 23407162
Dear Mrs. Sethuraman,
Sub: Your letter dated 14.06.2010 / received by us on 16.06.2010
I am in receipt of your mail dated as above labelled as reminder.
I wish to bring to your information as follows:
1. You gave a sample for DS screening on 28.04.2009
2. Your gestational age as on 28th April 2009 was 18 weeks
3. You were given a report with ID K1578 on 4th of May 2009
4. As indicated by your doctor the report given by us was not what was requested though the requisition from the doctor was not clear
5. A clarification was sought by Dr. Jayaram, for which information was given verbally by you that chromosomal analysis is required.
6. A chromosomal analysis was done on the sample of Mrs. Ranjini given on 28th April 2010.
7. Dr. Sundareshan discussed the case with you and informed you. Accordingly a refund of the charges was made along with the report.
8. Your gestational age at the time of us giving the report was 19 weeks.
9. Downs Screening test may be done from 15 to 20 weeks.
10. If required a second trimester screening could have been done at the time of report issue.
I agree that there was an error on our side which was not intentional. The test was taken after verbal communication with Dr. Jayaram who was told that Chromosomal analysis was required. It is with no malafide intention that the test for chromosomal analysis was done. I do not see any reason to consider that Anand Diagnostic Laboratory has intentionally caused any harm to you or your child.
You may consult your doctor on the above and seek her opinion.
In the event you still consider legal course is appropriate, you may do so.
With best wishes,
Dr. Sujay Prasad
16.06.2010
7. By this letter, it is very clear that OP has admitted error in conducting the diagnostic test. Therefore, under Law, it amounts to deficiency of service. The defence of the OP that requisition letter is not clear and therefore they have done Chromosomal Analysis test cannot be accepted. By looking into the requisition of Dr. Prema Krishnaswami, it is clearly mentioned that D.S. Screening. Even layman can understand the requisition letter. OP being famous & reputed Diagnostic Laboratory should have definitely seen & understood the requisition letter and the required test to be conducted. When Dr. Prema Krishnaswami recommended for D.S. Screening, instead of that test, OP had done different test called Chromosomal Analysis test. This is nothing but deficiency of service on the part of OP. OP by understanding their error rightly refunded the amount of Rs.2,000/- collected from the Complainant. The refund of amount is also admitted by the OP. On fund of amount, responsibility or obligation of the OP will not be absolved. On the other hand, it will strengthen the case of the Complainant to establish deficiency of service on the part of OP. OP should have taken proper care & caution before conducting the required test. In this case, OP has done test which is not required by the Complainant. Therefore, naturally, Complainant had been put into mental tension & agony.
8. Complainant has produced Certificate of Dr. T. Jagadeeswari, MD, DGO, DNB, FRCH, Principal, District Training Centre, Shimoga, at Annexure-8. Contents of the Certificate is as follows:
TO WHOM SO EVER IT MAY CONCERN
DS (DOWN SYNDROME) SCREENING ANALYSIS TEST IS BEING DONE TO DETECT BOTH PHYSICAL DIFFECTS AND MENTAL ATTENTION DEFICIT HYPERACTIVITY DISORDER (NEUROBEHAVIORAL DEVELOPMENT DISORDER) DIFFICIENCIES OF THE BABY INSIDE THE MOTHER’S UTERUS.
THIS TEST SHOULD BE DONE BETWEEN WEEKS 15 & 20 OF PREGNANCY.
FOR RELIABLE RESULTS, THIS TEST MUST BE DONE AT ONLY ONE TIME IN THE WEEKS 15 & 20 OF PREGNANCY.
SECOND TRIMESTER IS NOT ADVISABLE, BECAUSE THE SERUM MARKERS WILL BE AFFECTED WILL GIVE FALSE POSITIVE RESULT.
9. DSS Analysis must be done at only one time in the weeks 15 to 20 of the pregnancy has been admitted by the OP. As for as this point is concerned, there is no dispute. DSS Test is very important test to detect retardation or disability (both mentally & physically) of unborn child. When this important test has been recommended by the family Doctor of the Complainant, OP instead of conducting required test has done a different test even though the requisition is very clear and it can be read & understood easily. This action of OP definitely amounts to deficiency of service under the legal terms. For that OP shall have to be held responsible. It is true that the Complainant delivered healthy & normal child with the blessings of Almighty God. That will not absolve the OP for their negligence and deficiency in rendering the service. Since almost all the facts are admitted in this case, there is no scope for much discussions in the present case. The only point that could be considered is quantum of compensation to be granted. The Complainant has claimed Rs.3.00 Lakhs as compensation from the OP. On the facts & circumstances of the case, the amount claimed by the Complainant is exorbitant. Complainant is entitled for just & reasonable amount of compensation for mental agony and deficiency of service rendered by the OP. Though the Complaint is filed within a period of limitation of 2 years, but the Complainant has kept silent for a period of one year. She received the report on 28.05.2009, but for the first time she has written letter demanding compensation from the OP on 16.05.2010 that too after one year on receipt of the report. This delay is also one of the mitigating factors in awarding compensation. Healthy child has been born to the Complainant is also one of the mitigating factors to be taken into consideration for fixing the quantum of compensation. So, taking into consideration of the facts & circumstances of the case ends of justice would be met in awarding compensation of Rs.30,000/- to the Complainant. C.P. Act is a social and benevolent legislation intended to protect better interest of the consumers. Complainant is a consumer under the definition of the C.P. Act, 1986. Her interest will have to be protected by awarding compensation for the negligence and deficiency of service rendered by the OP. In the result, I proceed to pass the following:
ORDER
Complaint is allowed. OP is directed to pay compensation of Rs.30,000/- to the Complainant within 30 days from the date of Order.
In the event of non compliance of order within 30 days, the above amount carries interest @ 9% P.A. from the date of Order till payment / realization.
Complainant is also entitled for Rs.2,000/- as costs of the present litigation from the OP.
OP is directed to send the above award amount directly to the Complainant by way of DD / Cheque with an intimation to this Forum.
Send the copy of this Order to both the parties free of cost immediately.
Pronounced in the Open Forum on this 16th June 2011.
Order accordingly
PRESIDENT
We concur the above findings
MEMBER MEMBER
SSS
