1.      This Revision Petition has been filed under Section 58 (1)(b) of the Consumer Protection Act, 2019 (the “Act”) against impugned Order dated 26.09.2022, passed by the State Consumer Disputes Redressal Commission, West Bengal (‘State Commission’) in First Appeal No. 43 of 202. In the impugned Order, the State Commission allowed the complaint and modified the decision of the District Consumer Disputes Redressal Forum, Malda (‘hereinafter District Forum’) dated 23.11.2021 in CC No. 35/2018.

2.      For convenience, the parties are referred to as placed in the original Complaint filed before the District Forum. The Petitioners, Dishari Health Point and Dr. Krishendu Das are referred as OP-1 & 2 respectively. While the Respondents, Mrs. Doyajan Bibi; Chief Medical Officer of Health Office, Carmichael Hospital for Tropical Disease; and National Institute of Mental & Neuro Science are referred to as the complainant, OP-3, OP-4, and OP-5 respectively.  

3.      Brief facts of the case, as per the complaint, are that she was admitted at OP-1 Nursing Home on 26.11.2017, for treatment of fever and weakness. Dr. Sharma, purporting to be the proprietor, assured her and her husband of the facility's high standards asserting that it provided best medical care in the state, equipped with high-quality equipment and globally renowned pathologists. Upon admission, numerous tests were conducted at considerable expense. Later OP-1 hospital demanded her immediate discharge alleging that she was HIV positive and necessitated relocation for safety reasons. When her husband sought details of the tests and the diagnosing doctor, they refused to provide any information. She and her husband were coerced to sign on some blank papers. The discharge summary and HIV report, signed by OP-2 indicated that she had AIDS. Distressed by this diagnosis, she was went to Carmichael Hospital for Tropical Diseases (OP-4) in Kolkata, where further tests on 27.11.2017 confirmed that she was not HIV positive. Subsequently, she was treated for fever and other symptoms. It is the complainant’s case that due to the negligence of OP-1, she suffered severe distress and lost her mental balance, necessitating treatment at the National Institute of Mental Health and Neuroscience (OP-5) at Bangalore. Thus, she sought compensation of Rs. 15,00,000 for treatment costs and Rs.3,00,000 for harassment and mental agony and costs.

 4.     In their written version, OP-1 & 2 denied all material allegations levelled against them and contended that the instant case was not maintainable. They denied any deficiency in service or unfair trade practice on their part. The complainant was admitted to Dishari Health Point on 26.11.2017, as a referred patient and was served with the utmost sincerity and care. Prior to her admission at Dishari Health Point, she was admitted to Malda Medical College & Hospital, Apollo Nursing Home, Malda, and Mangalbari Nursing Home. She was brought to Dishari Health Point for further management with a history of fever lasting 10 to 12 days, under the consultation of Dr. SU Roy. OP-1& 2 treated her carefully as evidenced by the treatment sheet, which had the details of the diagnosis and treatment rendered. Complainant was then advised to be referred to the School of Tropical Medicine for further management.

5.      The learned District Forum vide Order dated 23.11.2021, allowed the complaint with the following finding:

“Now the main point to be considered is whether there was any negligence on the part of Dishari Health Point or not?

       On perusal of the diagnosis report it is found that the final diagnosis was done as HIV 1 & 2 Antigen Reactive. But the report of Carmichael Hospital shows that specimen is negative for HIV ante bodies. Can it be said that the medical tests were done by Dr. K. Das who is an M.D. with due care and used best care of his skills and ability if the report of Dr. K. Das was done with due care and using best of his skill then it must be same with the report of the Carmichael Hospital. So definitely, the test of the sample of the patient was not done with due care and using best of his skill and ability by Dr. K. Das is an M.D. in Pathology. He should be care at the time of submitting such type of report when such report may cause danger to a life of a patient. So definitely, it is a gross negligence latches on the part of Dr. K.Das.

       In a case of Deo Kumar Singh Vs. C.B.P.Sinda in 1(2008) C.P.J. 2005 N.C. wherein the Hon'ble National Commission held that there was a crystal clear that here was a total failure on the part of the doctor who conducted the tests.

       In that case it was found that the woman was pregnant for 2(two months and blood tests were done where it is found that the blood group was RH+ A whereas on the second time of examination of blood group by another laboratories it was found that RH-. That tests were done on the same day. In this case the National Commission held that there was a total failure on the part of the O.P. in exercising the adequate care in analyzing the blood.

       For the instant case we also found that second time blood test report was found from a Government Institution that HIV-, So definitely, it is a latches on the part of O.P. i.e. Dishari Health Point and Dr. K. Das as such they are liable to pay the compensation.

C.F. paid is correct.

Hence, ordered that the case be and the same is allowed on contest against the O.P. Nos. 1 and 2 i.e. Dishari Health Point and Dr. K. Das respectively with cost and the case is dismissed against the O.P. Nos. 3,4 and 5 as no case is made out against O.P. Nos. 3,4 and 5. O.P. Nos. 1 & 2 i.e. Dishari Health Point and Dr. K. Das are held liable jointly and severally,

       The Dishari Health Point will Rs.2,00,000/-(Rupces Two Lakhs Only) as compensation and Dr. K. Das will pay Rs. 3,00,000/- (Rupees Three Lakhs Only) as compensation. Besides that compensation the complainant is also entitled to get Rs. 50,000/-(Rupees Fifty Thousand Only) each from the O.P. Nos. 1 and 2 for mental pain and agony and also get Rs. 25,000/- (Rupees Twenty Five Thousand Only) as litigation cost.”

6.      Being aggrieved by the District Forum Order, OP-1 & 2 filed Appeal No. 43/2021 and the State Commission vide Order dated 26.09.2022 allowed the Appeal and modified the Order passed by the District Forum, with the following observations: -

“Dr. Das finally opined that antibody to HIV was detected and does not exclude the infection with HIV 1 and 2 possibilities of exposure. So, the R.M.O of that Health centre had to reply upon the report of Dr. Das who had to force the patient party to take the patient immediately so that such disease of H.I V could not be spread over to the other patients and person attached to the health centre.

If Dr. Das, after 2nd and 3rd phase testing, found the antigen non-reactive then after 3rd test, he could have opined as a tie breaker of 3rd test non-reactive and patient had no HIV infection.

But on the country, after tie breaker test, he still opined the possibility of existence of HIV 1 and 2 infections in the body of the patient and suggested another test after 4 weeks. So, the gross negligence on the report of the appeal No.2 was rightly detected.

...                                                 Hence it is ordered,

That the appeal be and the same is partly allowed on contest without cost.

The final order in respect of asking the appellant No. I to pay compensation to the tune of Rs. 2,00,000/- stands set aside. The order for awarding compensation for mental agony and pain to the tune of Rs. 50,000/- is also rescinded.

The order of Ld. Dist Commission in respect asking appellant No. 2 to pay the complainant to the tune of Rs. 3,00,000/-and Rs. 25,000/- as litigation cost to be paid by both the appellants jointly and severally remained intact.

If the orders are complied by appellant No. 1 & 2 within 45 days from this day, no further interest will be carried on failing which the rate of interest fixed by Ld. Dist Commission for non-compliance of the order shall take into force.

Let a copy of this order be supplied to parties free of cost and the same to be communicated to the DCRDC, Malda.”

7.      Dissatisfied by the Order of the State Commission, OPs 1 & 2 filed the present Revision Petition before this Commission praying:

“a. That the order dated 26/09/2022 passed by the State Commission in First Appeal No. A/43/2021 Dishari Health Point and Another Vs Doyajan Bibi and others. (Arisen out of Order Dated 23/11/2021 in Case No. CC/35/2018 of District Maldah, West Bengal) be set aside and the complaint be dismissed;

2. That the order dated 26/09/2022 passed by the State Commission in First Appeal No. A/43/2021 Dishari Health Point and Another Vs Doyajan Bibi and others. (Arisen out of Order Dated 23/11/2021 in Case No. CC/35/2018 of District Maldah, West Bengal) be stayed till disposal of the appeal;
3. Alternatively, it is prayed that the revision petition be remanded back with a direction to hear the matter in merits and dispose the matter after taking expert opinion accordingly;
4. Such further or other order be passed as this Hon'ble Commission may deem fit and proper.”

8.      The learned Counsel for Petitioners/OP-1 & 2 reiterated the arguments previously presented before both the lower fora and contended that the complainant was suffering from weakness and fever when she was admitted to OP-1 nursing home, and a routine screening test for HIV/AIDS was conducted. The purpose of such screening tests was to indicate the probable presence or absence of a disease or condition in a person without symptoms, whereas diagnostic medical equipment is used to make quantitative physiological measurements to confirm and determine the progress of a suspected disease or condition. While the medical screening equipment, though capable of fast processing in many cases, may not be as precise as diagnostic equipment. Thus, the tests used in screening are not perfect. It is common for such tests to sometimes show a false positive or false negative of people who have the condition. There are several known limitations of screening programs, which have been acknowledged by the World Health Organization. The complainant’s screening HIV test was done as per the mandate of three tests, and considering the test results, the final result dated 26.11.2017 was declared to be HIV non-reactive, that is, HIV negative. He also produced two reports from Govt of West Bengal, dated 27.11.2017 and 20.02.2018, wherein he was again tested for HIV, and the results were negative. Similar to OP-2 report, the Govt of West Bengal's report had also advised a repeat HIV test after six weeks. This implies that HIV screening tests may not always be accurate in the first instance. Thus, subsequent tests to arrive at final conclusion are a common medical practice. OP-2 was not negligent at any point in time and that the report prepared was correct in all respects. Her alleged mental pain and agony were not due to any fault of OP-1 & 2, as the test result prepared by OP-2 was HIV negative. The prescriptions placed on record regarding the treatment later pertain to one Doyajan Khatun, while the complaint was filed by Doyajan Bibi, while the affidavit was signed as Doyajan Bibi. He referred to medical literature on the possible reasons for false positive reports such tests. He also contended that if anyone was at fault in the present case, it was Dr. SU Roy, Resident Medical Officer, who is not a party to the complaint. Therefore, they prayed for the complaint to be dismissed.

9.      The learned counsel for the complainant argued that the State Commission reduced the amount payable by the OPs/petitioners from Rs.6,25,000 to Rs.3,25,000. This reduction has not been challenged by the complainant through the present revision petition. They argued that OP-1 & 2 were guilty of suppressio veri and suggestio falsi. He argued that 'Febrile encephalopathy' was a medical and neurological emergency, and it was natural for the complainant’s husband and other relatives to be shocked and perturbed by the situation. It is a settled principle in treatment that diagnostic tests are fundamental to medical treatment and if these tests were defective or unreliable, the entire treatment may be dangerous and lead to dire consequences. If the medical tests conducted by OP-2, an MD (Pathology) at OP Hospital with due care, skill and ability, the results should have matched those of the tests conducted at OP-4. Therefore, it was evident that the tests conducted by OP-2 were not done with the requisite care, skill, and ability. Her suffering was not limited to her ongoing treatment, but also to immense mental agony, harassment, loss due to alienation by neighbours, relatives, and friends. He relied on this Commission’s judgment in Deo Kumar Singh vs. C.B.P. Sinha (Dr.) 1(2008) CPJ 2005 N.C., dated 11.12.2007. Asserting that OP-1 & 2 acted negligently and deficiently, he prayed to uphold the impugned order dated 26.09.2022 passed by the State Commission.

10.    I have examined the pleadings and associated documents placed on record and rendered thoughtful consideration to the arguments advanced by learned Counsel for both the parties.

11.  The primary issue for determination is whether there was any medical negligence or deficiency in service on the part of OP-1 & 2 in the conduct of the HIV screening test and, if so, what are the implications and compensation payable?

12.  It is undisputed position that the complainant Doyajan Bibi was admitted to Dishari Health Point (OP-1) with symptoms of fever and weakness. After examining her, the OPs sought certain pathological and other screening tests to evaluate her condition and to plan her medical treatment. The tests included a routine HIV/AIDS screening test and the same was conducted. The question before us is the result and the interpretation of the HIV screening test report issued by OP-2, an experienced MD in Pathology. It is also undisputed position that OP-2 is well qualified and competent to release the test. As per the evidence on record, the HIV screening process followed the mandate of three tests: the HIV 1&2 Antibody and P24 (Serum/CMIA) antigen test. While P24 (Serum/CMIA) antigen test showed a 'reactive' result, the HIV 1 & 2 Immunochromatography and HIV 1 & 2 (Serum/ Immunofiltration) tests were 'non-reactive.' Thereafter, OP-2 declared the final screening result as 'HIV non-reactive.' The report, however, also mentioned the possibility of false positive or negative results. On informing of the clinical and other tests, the complainant was later admitted to the Centre for Tropical Medicine (OP-4), where HIV confirmatory test was conducted, and she was confirmed as 'HIV negative'.  The learned counsel for the complainant placed reliance of this Commission’s judgment in Deo Kumar Singh Vs. CBP Sinha (Dr.), 1(2008) CPJ 2005 NC, dated 11.12.2007. However, bare perusal of the said case reveals that the ratio of the same is not applicable in the present case in question as the former pertains to a wrong diagnosis report resulting in a wrong treatment. Whereas, in the present case, the final conclusion of the report was ‘non-reactive’, which was not incorrect as was also sought and confirmed by further tests and reports. Admittedly, after considering the clinical and other reports, the complainant was referred to a higher centre by the RMO, Dr. SU Roy for further management. Without doubt, she and her relatives believed that she was HIV positive and were traumatized till the subsequent confirmatory tests established to the contrary. While Dr. SU Roy is not a party to the complaint, it is clear that the initial screening test and report were based on the parameters that were revealed in the test. The test itself was for screening and it requires specific conformation, for any action or treatment to commence. While the patient and relatives may have been affected, it is part of treatment and no medical negligence or deficiency in service are established merely based on raising a flag with respect to one of the tests, which is also clarified that the results need to be correlated. It is imperative that a doctor must raise concerns with respect to the clinical tests in the interest of patients, based on the factors noticed by him/her, and call for confirmation for the same, which was what done in the case. It is normal for a patient to be worried about such reports. However, such bonafide report by itself does not give raise to any cause of action for negligence or deficiency in service. The State Commission failed to appreciate these aspects and the fact that the HIV report format prescribed by the National Aids Control Organisation (NACO), was correctly followed by OP-2 and the final conclusion was clear: 'non-reactive.' OP-2 cannot be held liable for the mental agony of the complainant due to the said test report. The suggestion of OP-2 for a follow-up test after four weeks was as per medical norms, acknowledging the potential for false positive and false negative results, as mandated by NACO guidelines. It is common knowledge that since, false positive and false negative results are known to medical science, repeat test is mandated in the standard HIV report form as per the NACO guidelines. The literature placed on record reveals that HIV tests detect antibodies produced by the immune system in response to HIV, but false positives can occur due to cross-reactivity with other antibodies. Due to this potential possibility, the healthcare professionals describe a test result as 'reactive' rather than ‘positive’ indicating need for further investigation.

13.  This preliminary reactive result must be confirmed with additional tests, as suggested by OP-2. In M.A. Biviji v. Sunita & Ors., 2023 LiveLaw (SC) 931, decided on 19.10.2023, and drawing from the precedents set in Jacob Mathew v. State of Punjab (2005) 6 SCC 1 and Kusum Sharma v. Batra Hospital (2010) 3 SCC 480, the Hon’ble Supreme Court outlined the three essential elements to establish medical negligence: (1) a duty of care extended to the complainant, (2) breach of that duty of care; and (3) resulting damage, injury or harm caused to the complainant attributable to the said breach of duty. The Apex Court held that, a medical practitioner will be held liable for negligence only in circumstances when their conduct falls below the standards of a reasonably competent practitioner. It further stated that due to unique circumstances and complications that arise in different individual cases, coupled with the constant advancement in the medical field and its practices, it is natural that there shall always be different opinions, including contesting views regarding the chosen line of treatment, or the course of action to be undertaken. It acknowledged that in such circumstances just because a doctor opts for a particular line of treatment but does not achieve the desired result, they cannot be held liable for negligence, provided that the said course of action undertaken was recognized as sound and relevant medical practice.

14.  In view of the foregoing discussions, I find no merit in the contentions of the Complainant and the stand of the learned State Commission that, as part of the screening test, OP-2 ought to have categorically stated the 'non-reactive' result as the tie-breaker after the third test. The learned State Commission and District Forum erroneously found negligence due to the mention of a 'reactive' result for HIV 1 & 2 Antibody & P-24 (Serum/CMIA) antigen and the recommendation for a repeat test. The learned State Commission failed to appreciate that the test format followed NACO guidelines, and the overall final result was 'HIV non-reactive.' Thus, we conclude that as OP-2 adhered to NACO guidelines in performing the diagnosis there is no breach any duty of care. Further, for negligence to be established, there must be a direct nexus between the alleged breach and the resulting injury and the facts of this case do not establish any such connection. Therefore, OP-1 & 2 cannot be held liable for any negligence or deficiency.

15.    Based on the discussion above, we do not find merit in the findings of the learned State Commission dated 26.09.2022 and the District Forum dated 23.11.2021 and therefore both the said orders are set aside, and the complaint is dismissed. The Revision Petition No. 13 of 2023 is allowed.

16.    Considering the facts and circumstances of the case, there shall be no order as to costs.

17.    All pending Applications, if any, also stand disposed of accordingly.