The complainant’s case germane in the lengthy petition of complainant and other material on record can be recited in a precise form as herein under.
The complainant went to Good Day Diagnosis Centre for pathological blood test for detection jaundice and hepatitis-B during her pregnancy as per suggestion of doctor at Kamdebpur PHC, Hooghly. The O.P. No.2 after going through process of examination with the blood of the complainant gave report on 1.3.2017 stating the status of the report was positive and HBSAG. The complainant became astonished with the report and was dissatisfied, she went to doctor for further suggestion where doctor told the complainant to undergo same pathological test from other laboratory for cross check up.
The complainant went to Disha Diagnostic Centre on 9.3.2017 and gave her blood for further examination. The said diagnostic centre found non-reactive HBSAH i.e. negative. The complainant thereafter repeated that check up at the same centre on 13.3.2017 and it was found the antigen HBSAG serum is .76 index i.e. below 1 with a remark not detected. At once the complainant raised objection before the O.P. for their report.
The complainant became puzzle and traumatizes and insptie of not getting any satisfactory reply from the Good Day Diagnostic lodged complaint before the IC, Polba P.S. and made complaint before the Chief Medical Officer, Hooghly on 26.3.2017 and 30.3.2017 respectively. The complainant also sent legal notice to the O.P., Good Day Diagnostic Centre claiming some amount of Rs.10,00,000/-.
It is alleged that complainant being informed regarding first report of O.P. became restless and different types of disorder inflicted to the complainant whiles she was carrying causing weight loss and hypertension.
Accordingly, the complainant and his family suffered grate loss and ha4rassmsent due to moving on one place to another and taking recourse of one pathological centre to another pathological centre repeatedly due to negligence act of the O.P. Hence, this case for compensation, for harassment, mental agony and litigation cost as per law laid down in the C.P. Act.
The O.P. has appeared and filed written version denying inter-alia all the material allegation as which has been raised by the complainant. It is contended by the O.P. that the complainant came to their institution for blood testing. The O.P. also has adopted the point of non-joinder of necessary parties. The complainant and her husband were advised by the pathologist Dr. Subrata Bose to undergone Elisa Test which is generally done after the kit test. But the complainant did not act as per advice and went for the second opinion from another diagnostic centre who examined the complainant through the Elisa Test after seen the qualitative rapid diagnostic test in human serum of the complainant. It is submitted that present O.P. is a pathologist. Therefore the qualitative assurance agent, the manufacturing unit of the kit and the marketing agency of the kit and distribute agency of the kit might be included as a party for administration of justice. Accordingly the complainant has no prima-facie case and the complainant’s case is to be dismissed.
The complainant filed photocopies of outdoor ticket (Anexure-1), pathological report of Gooddays Diagnostic Centre (Annexure-2), doctors prescription (Annexure-3), pathological report dated 9.3.2017 of Disha Diagnostic (Annexure-4), pathological report dated 13.3.2017 of Disha Diagnostic (Annexure-5), pathological report of Mediassist Diagnostic Centre dated 25.3.2017(Annexure-6) GDE (Annexure-7), Letter to CMOH, Hooghly (Annexure-8), Legal Notice (Annexure-9) etc. The complainant also filed evidence on affidavit, brief notes of argument and some citations of Hon’ble National Commission.
The O.P. filed photocopies of Licence (Annexure-1), Rapid Diagnostic Test for detection of HBSAG (Annexure-2), letter to Arijit Sen, Advocate(Annexure-3). The O.P. also filed evidence in chief and written notes of argument.
From the discussion herein above, we find the following Issues/Points for consideration.
ISSUES/POINTS FOR CONSIDERATION
- Whether the Complainant is a consumer of the opposite party?
2.Whether the O.P. is liable for deficiency in service ?
3. Whether the case is defect for mis-joinder of necessary parties?
4.Whether the complainant is entitled to get relief as prayed for?
DECISIPON WITH REASON
All the four points are taken up together for the brevity and convenience of the discussion.
The precise manner of this case is the allegation by the complainant regarding deficiency in service of the pathology centre, O.P. No.1 & 2. The complainant has adduced oral evidence. Complainant also adduced series of documents (Xerox copy). In the oral evidence the complainant has stated her case. She stated that after being instructed for examination of blood for finding whether there was Hepatitis-B in the blood of the complainant. It is pertinent that complainant was carrying at that time and she was kept under the vigilance of doctor shown by Annexure-10. In the oral evidence on oath complainant stated that she went to Gooddays Diagnostic Centre, Chinsurah, Hooghly on 1.3.2017 when she was instructed by the doctor. The said diagnostic centre completed pathological test and delivered a test report to the complainant. The report was positive showing presence of Hepatitis-B. The complainant became puzzle and she went to Disha Diagnostic Centre in Kolkata for two times on subsequent occasion and that two on 9.3.2017 and 13.3.2017 and again on 25.3.2017. She stated that she went to the latter diagnostic centre for confirmation of the report as was supplied by the O.P. No.2. The complainant further stated that on being inflicted with the first report the complainant became traumatize and felt hypertension with loss of weight. As such she finds and fixed the liability on the O.P. No.2 for causing her trauma and illness.
To substantiate the above allegation, complainant filed Annexure-1. Annexure-1 is the ticket for outdoor, Kamdebpur PHC, Block-Polba, Dadpur, Dist.-Hooghly. This ticket shows she was instructed for USG for lower abdomen and thalasemia detection test on 1.3.2017. The complainant went to the O.P. No.2, Gooddays Diagnostic Centre on 1.3.2017 and blood sample was given for Plasama Glucose, sodium fluoride and RH factor test. The result was positive. The report of examination of serology embodied the self contention and which can be construed as per note in the report. The name of the test HBSAG(Hepatitis-B Surface Antigen) with specimen serum. The result is positive. The note in the Annexure-2 is “sample checked twice, diagnostic HBSAG Cassette, Lot No.SL21002, Expt. Date-02/2018, it is recommended to repeat the test after 7 days”, recommended by Dr. S.Basu, MBBS. DCP. He is the pathologist. Annexure-3 dated 10.3.2017 instructed the complainant to complete three test HBSAG, liver function test and USG for lower abdomen. Before this day the complainant went to Disha Diagnostic centre on 9.3.2017. The report for HBSAG was done by Elisha Test. The result was negative. It is embodied in the report non-reactive below the cut of mark as per establish biological reference interval and less than 0.274. This test was done by fully automated Elisha System and signed by the Dr.S.R. Deb, consultant pathologist. Again the complainant rushed to the Disha Diagnostic Centre on 13.3.2017. It is not clear from this Annexur-3 who referred the complainant for test to Disha Diagnostic Centre on 13.3.2017.
It is pertinent to note again that save and except Annexure-3, there is no direction of medical officer to conduct such test on repeated occasion in violation of the wording laid down in Annexure-2. Record shows that the complainant again rushed to the Disha Diagnostic Centre on 13.3.2017 and said test has been done by the authorities of Disha Diagnostic Centre. The result of test on 13.3.2017 is negative. The serum was of 0.7 index less than 1 and Annexure-6 dated 25.3.2017 shows HBSAG is negative. After this result i.e. on 25.3.2017 the complainant logged FIR before the police authority, Polba P.S. on 26.3.2017. In the alleged complaint the complainant attributed some allegation against O.P. No.1 & 2. After that on 30.3.2017 the complainant by her Ld. Advocate sent a complaint to the CMOH, Hooghly praying for cancellation of pathological license due to medical negligence. It appears from the Annexure-8 that without adopting the due process of law the complainant has prayed before the authority concern for cancellation of pathological license and that too ground of medical negligence. Exbt. -9 is legal notice issued by the Ld. Advocate addressing the O.P. No.2 claiming compensation of Rs.10,00,000/-. Annexure-10 is a document filed by the complainant to show that she was examined regularly by the Health Department during carrying her pregnancy. From the Annexure-3, 4, 5 & 6 it cannot be understood what promoted the complainant to take the recourse of such test without being instructed by an expert doctor. To materialize the test conducted on 9.3.2017, the complainant has filed Annexure-3 dated 10.3.2017 wherein the test of HBSAG has been mentioned. Furthermore, the first test was done on 1.3.2017 as per recommendation; the patient had to come to the diagnostic centre or any centre after seven days. This direction has not been complied by the complainant. Rather complainant went to Disha Diagnostic centre on 9.3.2017. The Annexure-2 shows the result was not confirmed because there was recommendation to repeat the test after seven days. There is no document to see that after 1.3.2017 and till 10.3.2017 the complainant has been examined by any medical expert person i.e. medical officer having specialist knowledge or training in gynecology or there is no document of any expert medicine doctor or any authority recommend in such test on repeated occasion and that to in different method.
The complainant has filed written notes of argument. This written argument has stated all the facts written herein before. In para-6 it is argued that ‘from the act and conduct of the O.P. it is evident that the activity of the O.P. are negligent, careless and deficient from the part of his service and also guilty within the meaning of unfair trade practice under this act’. The complainant in his argument did not mention the facts which constitute negligence on the part of the O.ps. There is nothing in the written note of argument to stand that test was conducted by the O.P. to abruptly avoiding settled medical practice of testing the subject matter of dispute. Even the document filed by the complainant annexure-10 shows that blood pressure of the complainant was within the normal range (120/80). In fact there is no material in record to substantiate allegation of the complainant. At this stage this Forum is also thinking on this point what promoted the complainant to go for pathological test in question without being advice by medical expert. Exbt.10 has been filed by the complainant which goes against the complainant’s case.
In the written notes of argument the complainant argued that “the O.Ps. in their written objection had admitted that the alleged test was done at their laboratory by their pathologist through kit. They also further admitted that their pathologist had done the above said test with the blood of the complainant and wherefrom the result exclaved as positive which also match with the claim of the claimant. The O.Ps. further stated that as the kit test is less expensive and are the kits obtained from outside through their agent. There may be a chance of different and for which they suggest for further repeat test. Such type of statement from the part of the O.Ps. itself indicates gross medical negligence on the part of O.Ps.” Suggestion: “ if a blood test through Kit or Antigen of any person became positive by any pathology and on repeated test of the same person after some days if indicates negative by some other pathology without having any further treatment of any person, such discrepancy proof the medical negligence on the part of the pathology”. This argument shows that the O.P. conducted kit test and which shows positive result i.e. the test was done by using a Kit which is approved by the Medical Council of India as well as Central Government. The O.P. has nothing to do with the purchased Kit regarding the quality of that Kit which has been purchased by him from authorized dealer as per existing norms. The other doctor has done the test in other method not like the method adopted by the O.P. No.2 and not only that the Annexsure-2 made obligation on the complainant to repeat the test after seven days but the complainant did not approach to the O.P. No.2.
This case has been contested by O.P. No.2 by filing written version. The O.P. also filed written notes of argument and Anexure-D1 and D2. D1 is a license under the West Bengal Clinical Established Act, 1950 issued by the CMOH, Hooghly and Annexure-D2 is a Xerox copy of Rapid Diagnostic Test for the detection of HBSAG in human serum Plasma. The material used by the O.P. for conducting test has been shown in Annexure- D2 by Elisha-1 Test and Elisha-2 Test. It is also contended by t he O.P. that there is no acceptable expert report in the record to show any discrepancy of O.P. No.2 in conducting the test. The kit used for detection and conducting the test is standard and result shown in the kit was positive. So, it is argued in the written notes of argument by the O.P. that complainant should challenge the Kit preparing authorities because kit is manufacture by a particular company duly certified through its quality control assurance checks packaged with other components with the help of quality control checks, marketed by the distributing agency for final dispatch and supplied to a particular laboratory on requisition. It is also argued that clinical investigation involving Eliza Test is purely a quantitative test. It is also argued that the patient was told to repeat the test after a period of seven days to conduct further test (either kit or Eliza) was to arrive ascertain and confirm at a conclusive determination of detection of HBSAG upon the complainant. But the complainant did not act as per advice laid down in the Annexure-2 in the lower portion. It is argued non-action on the part of the complainant as per advice laid down in the Annexure-2 does not give any reason to attribute medical negligence of O.P. No.2 inspite of doing that and without advice of doctor the complainant has done the test on 9.3.2017, 13.3.2017 and 26.3.2017. It is also argued by the O.P. that later action of the complainant vide letter dated 26.3.2017 to police and letter dated 30.3.2017 to the CMOH, Hooghly itself shows the bad intention of the complainant because of the fact that the O.P. have no practical role to play either in manufacturing the kit or even in giving such faulty or wrong report as alleged at all. The O.P. has opined as per reading shown by the kit (instrument of measuring the ingredient of blood). It is also argued by the O.P. that manufacturer of kit and consequential to give such report attributes no negligence on the O.P. No.2 and those manufacturing unit of the kit quality control agent, marketing agent and consultant histopathologist and cytologist engaged in the O.P. No.2 should have been impleaded by the complainant as a party in this case. Even the Dr. S.Basu who imparted signature on the Exbt.2 has not been made party. His presence was essential to bring many other facts in this case. Particularly preparation of kit by authorized company. Therefore, it has been argued that the case must fail and cannot be judged in absence of those parties. It is also argued that there is no expert opinion. It is only the expert or a pathologist can give vivid explanation regarding the test in our hand. Without such opinion nothing can be concluded. Rather the conduct of the complainant by adopting recourse pathologist test again and again and conduct of the complainant is perplexing. By adducing written notes of argument the O.P. argued that material on record does not prove the negligence and deficiency of service of O.P. No.2.
We are discussed the all points picking the facts from the records and pegging it by the documentary evidence to find out and to reach a conclusion whether complainant has been able to prove his case. After considering those picked up material embodied herein before we are of the opinion that complainant’s evidence is insufficient and not reliable being untrustworthy imparting negligence and deficiency in service upon the O.Ps. As such the force of the evidence of O.Ps., is greater than the same of complainant. Accordingly, the case instituted by the complainant is unable to stand on legs. So, the case fails measurably because the evidence of the complainant fails to inspire confidence in the mind of this Forum to hold that there was deficiency in service or negligency on the part of the O.ps. Hence, it is
Ordered
that the case be and the same is dismissed on contest against the O.Ps.
Let the copies of this order be supplied to the parties free of cost.
