BEFORE THE A.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSIONAT HYDERABAD.
F.A. 311/2006 against C.D. 434/2002, Dist. Forum-II, Hyderabad
Between:
Baby Sneha Agarwal
Being minor Rep. by her
Natural guardian father
Om Prakash Agarwal
S/o. Bansilal Agarwal
R/o. 16-1-553/2/8
Saidabad, Hyderabad. *** Appellant/
Complainant
And
M/s. Vijaya Diagnostic Centre
Rep. by its Director
Dr. Surender Reddy
IS Sadan, Santosh Nagar
Hyderabad.
Main Branch Office at
Tirumala Apartments
Sky Line Theatre Lane
Himayatnagar, Hyderabad. *** Respondent/
Opposite Party.
Counsel for the Appellant: Mr. V. Gourisankara Rao
Counsel for the Resp: Mr. P. Roy Reddy
F.A. 1201/2008 against C.D. 434/2002, Dist. Forum-II, Hyderabad
Between:
M/s. Vijaya Diagnostic Centre
Rep. by its Director
Dr. Surender Reddy
IS Sadan, Santosh Nagar
Hyderabad.
Main Branch Office at
Tirumala Apartments
Sky Line Theatre Lane
Himayatnagar, Hyderabad. *** Appellant/
Opposite Party.
And
Baby Sneha Agarwal
Being minor Rep. by her
Natural guardian father
Om Prakash Agarwal
S/o. Bansilal Agarwal
R/o. 16-1-553/2/8
Saidabad, Hyderabad. *** Respondent/
Complainant
Counsel for the Appellant: Mr. P. Roy Reddy
Counsel for the Resp: Mr. V. Gourisankara Rao
HON’BLE SRI JUSTICE D. APPA RAO, PRESIDENT
&
SRI K. SATYANAND, MEMBER
MONDAY, THIS THE FIFTEENTH DAY OF JUNE TWO THOUSAND NINE
Oral Order: (Per Hon’ble Justice D. Appa Rao, President)
*****
1) The complainant preferred F.A. 311/2006 against the order of granting inadequate compensation, while the opposite party diagnostic centre preferred F.A. 1201/2008 against very granting of compensation of Rs. 5,000/-.
2) Since both the parties have preferred appeals, we describe the parties as arrayed before the Dist. Forum for felicity of expression.
3) The case of the complainant in brief is that when she had a minor ailment, approached one Dr. K. Madhava Reddy, who in turn referred her to the opposite party diagnostic centre for blood test. Accordingly, it took blood sample on 1.6.2002 and furnished a report showing blood urea at 103 mg/dl as against normal range of 15-40 mg/dl., and serum creatinine at 13.4 mg/dl as against normal range of 0.6-1.5 mg/dl. On seeing the report, Dr. K. Madhava Reddy finding it as serious in view of vast difference against normal ranges referred her to another diagnostic centre viz., Hyderabad Kidney & Laparoscopic Centre, Malakpet. All through she and her family members were put to mental agony and shock. Contrarily the report from Hyderabad Kidney & Laparoscopic Centre, Malakpet, showed that blood urea was 10 mg/dl as against normal range of 15-45 mg/dl and serum creatinine was 0.6 mg/dl as against normal range of 0.6 – 1.5 mg/dl. The doctor having found abnormality in reports and mischief committed by the opposite party, once again referred her to opposite party on 5.6.2002. On examination of blood, the
Opposite party mentioned the blood urea at 18 mg/dl as against normal range of 15-40 md/dl and serum creatinine at 0.7 mg/dl as against normal range of 0.6 – 1.5 mg/dl. The doctor opined that there could not be such an abnormality of readings within a short period of four days. When she contacted the opposite party telephonically about the improper report , they did not give any reply and on the other hand stated ‘you can do whatever you like.’ She and her family members were put to mental agony and shock for all the four days and they were running around the hospitals and experts and they were completely demoralised. The report indicates serious kidney failure and advised for continuous dialysis and had the report of Hyderabad Kidney & Laproscopic Centre not been taken she would have gone for hospitalization and she would have been put on dialysis. She gave legal notice for which the respondent did not give any reply. Therefore, she filed the complaint claiming damages of Rs. 1,50,000/- with costs.
4) Opposite Party filed counter resisting the case. It alleged that it is a reputed organization offering yeoman medical diagnostic services for more than two decades having modern and state of the art medical equipment. They greatly reduces the possibility of error in diagnosis. There may be possibility of machine error. At the same time, it is possible that intake of drugs or a particular diet, presence of bilirubin in the blood, high lipids and haemolysis of the sample would influence blood urea and serum creatinine levels in the blood. These levels are not static and are subject to change due to various influences. It is essential that the consulting doctor co-relates and considers the test results in his diagnosis. While admitting that they have conducted the tests and the fact that report Dt. 5.6.2002 showed normal levels. In the light of first report, they did the tests once again free of cost. They explained the position to the complainant’s father. They never made any remarks on phone. They were all well trained, well mannered and courteous .
Since the tests were repeated free of charge, findings were utilized by the treating doctor and advised her proper treatment, and that there was no actual damage caused to the complainant. A reply was given to the legal notice issued by the complainant. Since the complainant did not suffer any actual damage they were not liable to pay any compensation. It shows malafide intention on the part of complainant in order to indulge in frivolous and vexatious litigation. Therefore it prayed for dismissal of the complaint with costs.
5) The complainant in proof of her case filed the affidavit evidence of her father and got Exs. A1 to A11 marked, while the opposite party filed the affidavit evidence of S.Surender Reddy, who is managing the diagnostic centre and that of Dr. A. S. Kanakasabhapathy, Former Professor & Head of Clinical Biochemistry, CMC, Vellore.
6) The Dist. Forum after considering the evidence placed on record opined that ex-facie Ex. A2 report shows high levels of blood urea and serum creatinine and that of Ex. A10 expert opinion of Dr. V. Rama Mohan Reddy, Consultant Radition Oncologist opining such levels of blood urea and serum creatinine lead to renal failure and in the light of medical opinion, opined that the incorrect report had caused mental trauma to the complainant. Had the complainant not been referred to second opinion, she would have exposed to unnecessary high doses of medicines resulting in permanent damage to the kidneys. Considering the circumstances, a compensation of Rs. 5,000/- was awarded together with costs.
7) Aggrieved by the said decision, the opposite party preferred F.A. 1201/2008 contending that the Dist. Forum did not appreciate either the fact or law in correct perspective. It failed to see that there is always a scope for variation in the test results depending upon various contributing factors as explained by the experts besides medical literature, and therefore no compensation should have been awarded against it. Equally, the complainant preferred F.A. 311/2006 contending that the Dist. Forum did not award compensation commensurate to the agony suffered by the complainant and her family members. It did not consider the enormity of the damage that could have been caused, had the report been acted upon, and therefore prayed that the compensation as prayed for be awarded.
8) The point that arises for consideration is whether any compensation could be awarded for the incorrect report furnished by the diagnostic centre. If so, to what amount?
9) Most of the facts are not in dispute. The opposite party a diagnostic centre admits that it undertakes diagnostic services and use modern scientific equipment of high order where the margin of error are minimal. The complainant is a girl of 13 years age. When she was referred to the opposite party for examination of blood urea and serum creatinine on 1.6.2002, after conducting the tests it furnished Ex. A2 report mentioning the following levels:
Blood Urea : 103 mg/dl
Normal range : 15 - 40 mg/dl
Serum Creatinine : 13.4 mg/dl
Normal range : 0.6 - 1.5 mg/dl.
Since ranges shown were abnormal, her doctor referred, her for another report from Hyderabad Kidney & Laparoscopic Centre, Malakpet. When tests were conducted on 5.6.2002 the blood urea and serum creatinine levels were shown as follows :
Blood Urea : 10 mg/dl
Normal range : 15 - 40 mg/dl
Serum Creatinine : 0.6 mg/dl
Normal range : 0.6 - 1.5 mg/dl.
Dr. K. G. Raja Ram, Nephrologist after considering the above report prescribed medicines. However, he directed her to undergo the very same test at opposite party. On that test was once again conducted by the opposite party on 5.6.2002. The report Ex. A5 reads as follows :
Blood Urea : 18 mg/dl
Normal range : 15 - 40 mg/dl
Serum Creatinine : 0.7 mg/dl
Normal range : 0.6 - 1.5 mg/dl.
From the above, it is beyond doubt that Ex. A2 report given by the opposite party does not reflect correct ranges. The complainant termed it as a ‘false’ diagnostic report. Dr. V. Rama Mohan Reddy, Consultant Radiation Oncologist after considering Ex. A2 report opined that these tests are usually conducted to know the renal functional sufficiency. However, the values cannot be elevated to more than 50%, and that indicates that the kidney function is disturbed. He stated that the blood urea and serum creatinine values were elevated to more than double the upper limit of the normal range (normal range varies from lab to lab and hence each lab will mention its normal range) and they cannot become normal within a short span of time. He appended a diagram showing that the ranges would indicate problems in filtering unit in kidney. These findings are in tune with medical texts. A perusal of Ex. A2 would make anybody to come to a conclusion that there was renal failure.
10) Learned counsel for the complainant referring to Davidson’s Principles & Practice of Medicine, 14th Edition contended that the findings in Ex. A2 would undoubtedly suggest that the patient could be suffering from renal failure and related disease. This could have been contradicted by the opposite party.
11) Since the complainant fortunately did not take any treatment, in the sense that the doctors having found abnormal readings which they obviously did not believe referred to another diagnostic centre for second opinion where she underwent yet another test, wherein the blood urea as well as Serum Creatinine were found to be in normal ranges thus avoiding any treatment for renal failure. We shudder to think as to what could have happened had the doctor based on the ranges mentioned in Ex. A2 prescribed the medicines. We do not intend to state that she could have been subjected to dialysis etc., and the implications of which could everybody know. For all these days from 1.6.2002 to 5.6.2002 till the report from Hyderabad Kidney & Laparoscopic Centre was received her family members must have felt mental agony and trauma which may not be possible to describe the plight in words.
12) This is ex-facie a false diagnostic report. They issued a report showing altogether incorrect findings. In fact, had the diagnostic centre been careful enough, verified the findings before handing over the report it could have suggested for second test as the ranges were abnormal. They should have suspected something wrong somewhere. Since the contention of the diagnostic centre was that such errors could be possible due to “machine error”, they should have offered the complainant to go for repeat test. Evidently these tests were prescribed in order to find out the exact ailment that the patient was suffering. The question of technical error or machine
error would not be a defence. Basically these findings are considered and finally the drugs would be administered basing on these reports. They cannot take defence by alleging that there might be some technical error or error in the machine. If that were to be so, immediately, they have to get it checked. These are lame excuses. They should know that they are dealing with the lives of individuals. They cannot liken it with the instruments citing machines. This will never give them a sort of excuse for explaining the mistake.
13) The diagnostic centre alleges that variations in the readings is not unusual. They could be affected by numerous factors including severe physical activity prior to testing, drug intake, changes in diet, anxiety and stress, incorrect or stained postures, biological variation etc. In order to defend themselves it has relied the opinion expressed in this regard by Dr. A. S. Kanagasabapathy, Former Professor & Head of Clinical Biochemistry, CMC, Vellore. Curiously, he alleges that in children aged below 12 to 15 years they are very nervous and non-co-operative. At the time of collection, the staff may be required to physically hold them to collect the sample. During such collection, the child may move their hand and in spite of their hand being positioned tightly, this movement may cause some damage to muscle due to the needle piercing the muscle fibers. Presence of this type of tissue fluid in the blood sample and hemolysis (rupture of red blood cells) due to tight hold of the hand may cause variations in the results of various biochemical parameters. He further alleges that the methodology used for the estimation of any test has it’s own limitations i.e., Jaffe’s reaction which is commonly used in many labs for estimating levels of serium creatinine is subject to reactivity with number of compounds like commonly used Viatmin C or glucose or any drug etc. For this he referred to a passge from Clinical Diagnosis and Management by Laboratory Methods by Dr. John Bernard Henry MD at page 166.
14) Dr. Surender Reddy who was administering the diagnostic centre never stated that the complainant was non-co-operative at the time of taking sample nor damage was caused to the muscle and that they could find tissue fluid in the blood sample. If really the opposite party was of the opinion that due to administration of some drugs these findings had occurred it could have asked the doctor who referred the complainant to them to find out the exact
drugs that were administered to her, the food she had taken in order to justify such a contention. Unless the opposite party proves that these findings were due to administration of certain drugs etc. a general statement culling out from the medical journals would not hold good. The expert who has given the opinion did not find out as to why the finding shown in Ex. A2 occurred. He did not conduct any test in order to find out whether there was any error in the machine or the equipment used for testing the blood sample. His opinion is in general terms, equally the affidavit of the person manning the opposite party diagnostic centre. When Ex. A2 report issued by the opposite party diagnostic centre vis-à-vis Ex. A6 issued by Hyderabad Kidney & Laparoscopic Centre and that their own second opinion under Ex. A5 show variations, and particularly when Ex. A5 & A6 show normal ranges while Ex. A2 taken a few days before showed abnormal ranges which could not have been true, which were incorrect would undoubtedly disclose that there was deficiency in service attributable to the opposite party diagnostic centre. Their own reports Exs. A2 and A5 show variations which they themselves did not justify or explain. Undoubtedly, any parent when finds his child suffering from a rare disease or a disease of magnitude mentioned by the doctor in his report Ex. A10 untold trauma must have caused. It cannot be brushed aside by stating that no real harm was caused. Had real harm was caused the opposite party diagnostic centre would be directed to compensate by awarding very heavy damage not a pittance. The opposite party diagnostic centre boasts that it is a premier diagnostic centre having ultra modern, sophisticated and state of the art equipment but the results shown in Ex. A2 depicts otherwise.
15) It must also be borne in mind that where any act is actionable without reference to the damages it produces, and fear and distress of mind are the only consequences which must result from it, courts of law will generally measure the amount of damage by the poignancy of distress it has occasioned to the petitioner.
16) Compensation for mental agony falls under the category of “non-pecuniary losses”. It is next to impossibility to give any guidance in this regard because the amount of compensation varies as it does with particular injury. In other words, the assessment of damages under this head should necessarily be conjectural. Compensation awarded under this head shall therefore be fair and reasonable, such compensation is ‘an acknowledgement of regret for having caused a hurt that is imponderable rather than a compensation properly so called.
17) Considering the nature of trauma caused to the parents equally to the girl for those four days, we are of the opinion an amount of Rs. 20,000/- could be awarded which we feel is modest and reasonable . The contention that no harm was caused to the complainant has no relevance.
18) In the result the appeal F.A. No. 311/2006 filed by the complainant is allowed in part enhancing the compensation from Rs. 5,000/- to Rs. 20,000/- together with costs of Rs. 5,000/- in the appeal. As a corollary F.A. No. 1201/2008 filed by the opposite party is dismissed. Time for compliance four weeks.
1) _______________________________
PRESIDENT
2) ________________________________
MEMBER
Dt. 15 . 06. 2009.
