Dr lal Pathlabs Pvt Ltd V/S Priya Talwar - Consumer Court Case

Delhi

New Delhi

CC/512/2015

Priya Talwar - Complainant(s)

Versus

Dr lal Pathlabs Pvt Ltd - Opp.Party(s)

18 Mar 2019

ORDER

CONSUMER DISPUTES REDRESSAL FORUM-VI

(DISTT. NEW DELHI),

‘M’ BLOCK, 1^STFLOOR, VIKAS BHAWAN, I.P.ESTATE,

NEW DELHI-110001

Case No.C.C./512/2015 Dated: 18/03/2019

In the matter of:

1. Priya Talwar

W/o Gunjan Arora,

R/o B-247, Top Floor RHS

Chattarpur Enclave Ph –II,

New Delhi -110074

2. Gunjan Arora

H/o Priya Talwar

R/o B-247, Top Floor RHS

Chattarpur Enclave ph-II

New Delhi -110074

3. Jatinder Nasth Talwar

F/o Priya Talwar,

R/o 31- B, MIG, Sheikh Sarai-I

New Delhi -110017

…Complainant

Versus

1. Dr. Lal Pathlabs Pvt Ltd.,

EskayHouse, 54 Hanuman Road.

New Delhi-110001

…Opposite Party

H.M. VYAS-MEMBER

ORDER

The crux of the complaint is that the complainant got pregnant for the first time in the year 2014 after about 14 years of marriage. She was in the supervison of Gynecologist Dr. Pushpa Chandra MD. On the medical advice of the Dr. Gynecologist, the Complainant No. 1 underwent “Triple Marker” test. The OP’s technician on 27.08.2014 collected the blood sample and sought some information which was provided to him. The photos of the Ultra Sound (USG) report were sent in his presence through emails on the ID’s provided by the technician in his presence. The copy of the emails has been annexed with the complaint. The test was costing Rs.2,700/-at lab no. 10919492 which was paid by complainant.

The “Triple Marker Test” report was downloaded on 28.08.2014 containing 3 pages. The test report OP as downloaded showed the “Trisomy-21 screening” “Positive”. On consulting the Gynecologist on 29.08.2014, she informed that the report is “positive” for one of the markers i.e. the child to which the complainant no. 1 bearing was at a very high risk of carrying “Down’s Syndrome” and advised to go for “ Genetic Counseling-Fetal Medicine.

Such news was a jolt, shook the complainant and whole family badly, especially, when the complainant conceived the first child after about 14 long years of marriage. It is also stated that the complainant and his family are from a healthy background with no genetic defects and were traumatized by the report given by OP.

It was then decided to contact the OP about the incorrect date (of USG report mentioned on the test report) and its bearings, if any, and accordingly, a call at call centre of OP was made. The matter was reported for investigation and the complainant was provided docket no. REQ2014/8/004553 dated 29.08.2014.

That on 30.08.2014 one Dr. Pankaj from the OP called the complainant and informed that it was typo graphical errors and tried to explain that it does not bear any relation to the accuracy or otherwise of the report. Further, he informed that they would upload the revised report reflecting the correct dates.

The revised report uploaded on 30.08.2018 by OP showed the “Marker” as “Negative”. Copies of both the reports downloaded by the complainant have been annexed. It is alleged that there is marked difference in reports as is between the life and death. It is also alleged that giving two reports in respect of one blood sample creates thought about the OP’s dubious conduct of having taken correct parameters and conducted the test correctly. The apathetic and unprofessional approach of Dr. Pankaj of OP raised the clouds of doubts on the very credibility of the reports and the procedures/practices adopted by the OP in the lab.

In such state of affairs, under medical advice “Quadruple” test was under taken at Sir Ganga Ram Hospital. The said report is dated 16.09.2014 and mentions all tests “negative” that is ok. Copy of the said report dated 16.09.2014 is also annexed with complaint.

During this period, the complainant and her family had to undergo traumatic agony, mental and physical beside extreme stress. Thereafter, a legal notice dated 07.12.2014 was sent to the OP asking for a token sum of Rs. 1,00,000/- as the mental trauma cannot be quantified in monetary terms.

The complainant has made following prayer:-

To allow this complaint with a damages of Rs. 1,00,000/-(Rupees one lac only) in favour of the complainants and against the OP, or any other amount which this Hon’ble forum may deem appropriate, for causing mental torture, and tension.
To allow litigation cost of Rs. 50,000/- (Rupees fifty thousand only) in favour of the complaints.
To order for institution of criminal complaint against the OP with the appropriate police authorities.
To order an investigation by National Accreditation Board for Testing and Calibration Laboratories, India, (NABL) for the sorry state of affairs of the OP’s Laboratory, and also to order investigation how the OP got ISO 9001:2008 certification and recognition by CAP (College of American Pathologist) as claimed by the OP (at page 5) in Para –III of its reply to the legal notice.
To impose appropriate penalty on the OP, for the deficiency in service.
To pass any other order or orders, directions in the interest of justice, for which act of kindness complainants shall ever be so grateful.
The complainants reserve their right to add/delete/modify and/or any prayer.

The OP filed version to the complaint after noticed and alleged that the complaint is liable to be dismissed as the complainant has deliberately consulted the material facts. It is stated that mere negligence is not enough to prove deficiency in service and the complainant has to prove willful fault and imperfection shortcoming and inadequacy in service of OP. The act of omission and commission of OP gives a right for damages under Civil law. Regarding Triple Marker Test, it is stated that the same does not in any way confirm the presence of “ Down Syndrome” in a child only indicates whether further tests are required or not. In the event of Positive result in Triple Marker Test the results have to be confirmed by “Karyotyping” of fetal cells from amniotic fluid to confirm the presence of “Down Syndrome” in a child. The treating doctor is duty bound to inform complainants about the same. The test report of the OP mentions that Screening tests are based on statistical analysis of patient demographic and biochemical data.

It is also alleged that it is imperative to mention that discrepancy in the dates of Ultrasound report (USG) was due to the reason that the date on the copy by the USG report handed over to the OP was printed as 03.07.2014 and could not be understood as 23.07.2014 by any imagination. This fact is indubitably evident from a perusal of the copy of the USG report. The bona fide intention of the OP are evinced from the fact that as soon as it got the information from the complainant on 29.08.2014 that the date of USG report was in fact 23.07.2014, the OP immediately initiated the process of calculating the risk factor and issued revised report the next day. There is no deficiency or negligence on the part of OP. It is stated in Para (6) of the written statements that the OP is a lab of repute and accredited by National Accreditation Board for Testing and Calibration Laboratory (NABL) and College of American Pathologist (CAP) along with ISO 9001: 2008 certification. It is pertinently mentioned the OP always reconfirms the release before releasing the report. The OP has denied that the photos were sent by email but the concerted that the copy of USG report was handed over to the technician who collected the blood sample of the complainant. The OP has denied that there was a marked difference between the first report and the second report. It is denied that the first report indicated the child carrying a high risk of “Down Syndrome” the OP has replied to the legal notice sent by the complainant.

The complainant filed rejoinder to the written statement of the OP specifically mentioning therein that the OP misread the date of “3” instead of 23 from the soft copy of USG and prepared erroneous “Triple Marker Test” report to make the case for itself. The OP falsely stated that a hard copy of the report was given by the complainant when the technician collected blood samples. As a matter of fact, the OP downloaded the copy of the USG report from the mail and forged it by passing a white streak of line through it so that the digit “2” disappears from “23” and the date appears as “3”. All allegations contrary to the contentions of the complaint made by the OP have been denied. The OP when rechecked the USG report date and other data already available with it then realized that it is grave negligence and revised the report incorporating the correct USG report date and data and released report on 30.08.2014 showing the “3 Markers” as “negative”.

Both the parties filed their respective evidence by way of affidavit on 08.10.2016. Thereafter, the OP filed affidavit of additional evidence along with written submissions and the copy was supplied to the complainant on 16.03.2017. The reply to the said application was filed by the complainant on 29.11.2017 reiterating their respective contentions. The complainant also filed the screen shot of the email dated 27.08.2014 sent to the OP, beside the meaning of “Down Syndrome” from Google about Trisomy 21. Both the parties filed written arguments.

Revision petition was filed before the Hon’ble State Commission impugning the orders dated 29.11.2017. The Hon’ble State Commission vide orders dated 21.03.2018 directed this Forum to decide the application for additional evidence before proceeding with the complaint. The application of the OP and the objections filed by the complainant were decided on 17.08.2018 whereby the objections raised by the complainant were rejected regarding the evidence filed by the OP.

Final arguments were addressed by both the parties. The complainant‘s arguments were supporting the contentions of the complainant and the documents, evidence filed by them as also refer here in above.

The OP during arguments relied on the judgment dated 05.09.2011 of the Hon’ble National Commission reported as Manu/CF/0331/2011 in RP-No. 216/2011 titled as Prashant Nag proprietor Ceramic Point V/s Orient Ceramics and Industries Ltd. It is argued that the OP had not done no irregularity and that the complainant is not a consumer and the contract between the complainant and the OP does not tantamount to service. The OP also argued that no evidence substantiating any deficiency on the part of OP has been filed by the complainant. The Counsel for OP also referred the Supreme Court Judgment reported as (2005) this SCC in the case of Jacob Mathews V/s State of Punjab and another on the point of medical negligence on the part of OP. Further, it is stated that there was no negligence on the part of OP and the act of the OP was bona fide and the report was revised as soon as the complainant called the National Customer Care of the OP.

We have considered the material placed before us and the argument of both the parties addressed at length.

The admitted position, emerging from the available record and the arguments is that it is not in dispute that technician of the OP took blood samples of the complainant and two reports in respect of the same blood sample were given by the OP on 27.08.2016 and 30.08.2016. The issue for examination revolves around the factum of “Whether or not the USG report dated 03.07.2014 or 23.07.2014 given to the OP through email or by hand to the technician of the OP.

The complainant has placed the copy of the email sent to the OP at its official ID

It is not in the case of the OP that it received fresh copy of USG report from the complainant before revising its earlier report dated 28.08.2014. In written statement and the evidence filed by OP, there is reference of query from the complainant where after the report was revised & uploaded. The copy of USG report filed by OP bears a streak from top to bottom causing discrepancy in the date of USG report however, the contents of USG report mailed to OP by the complainant are same.

In our considered view, the OP should have resolved/ ascertained the actual date of USG report before giving the final report dated 28.08.2014. The OP in Para (6) of written statement has emphasized that the OP always reconfirms the results before releasing the report. In Para (7)(e) of the WS It is also mentioned that the report dated 28.08.2014 clearly mentions “Screening Tests are based on statistical analysis of patient demographic and bio-chemical data. They simply indicate a high or low risk category. Confirmation of screen positives is recommended in the amniotic fluid.”Further, it was argued that the report dated 28.08.2014 also mentions that “ the interpretive unit is MoM (Multiples of Median) which takes into account variables such as gestational age (Ultrasound) maternal weigh, race etc.

Even if the arguments of the OP is considered in a positive way still in such state of facts where the test report Trisomy 21 Screening report also accounts the gestational age, and further that the OP reconfirms the report before release of the report, we are of the considered view that ignoring to confirm the correct date of USG report having an impact on the outcome of the Trisomy test report is not only negligence but also reflects intention to ignore the same. In other words, such reckless processing for Trisomy test report by the OP deserves to be viewed seriously. Even on query of the complainant regarding correct date of “USG Report”, the fresh copy of the USG Report was not asked by OP, however it revised the “Trisomy Report”. As per the “Adams and Victors principles of neurology” (9^th edition) authored by Allan H. Ropper. Martin A. Simuels, the Trisomy 21 Screening “positive” report is indicative of “Down’s Syndrome”. The “Down Syndrome“ (Trisomy 21) is due to adherence of three chromosomes in 21^st pair of the chromosomes. The child born with Down Syndrome generally has many ailments including mental retardation and physical deformities beside allied physiological, morphological and anatomical problems.

The complainant was bearing the first child and the period between 28.08.2014 till the final report from Sir Ganga Ram Hospital on 16.09.2014 would obviously be causing traumatic agony, physical and mental to the complainant and her family which was only inconsequence of the erroneous report given by the OP without confirming the period of gestation based on the actual date of the USG report which could have been called for by the OP from the complainant since allegedly it could not be confirmed by them, though the complainant sent the report by email and filed its copy before us. The judgments relied by the OP do not help as the facts and circumstances of the present case are quite at variance to those judgments.

It is very difficult to assess the mental trauma and the harassment caused to the complainants, however, this Forum feels that the ends of justice would meet by holding the OP to be deficient in service with willful negligence and accordingly, direct as under:-

1. The OP is directed to pay compensation of Rs. 50,000/- to the complainants for harassment and mental agony etc;

2. Cost of Rs. 5000/- for litigation;

Copy of the order may be forwarded to the parties to the case free of cost as statutorily required.

Announced in open Forum on 18/03/2019

The orders be uploaded on www.confonet.nic.in.

File be consigned to record room.