SMT. BANDANA ROY, PRESIDENT
The synopsis of the complaint case is that the complainant, while pregnant on 07.11.2016 had been to the Haldia ID Hospital outdoor for checking. One Dr. Prasanta Sinha MD Gynecologist of said Hospital advised for examination of ABO Grouping and RH ‘D’ typing along with other normal tests during pregnancy. Accordingly the complainant came to the pathological centre of the OPs on 26.11.2016 for all such tests and the reports were delivered to the complainant on 08.12.2016 wherein the blood group of the complainant was found AB positive. This report was signed by the OP no1. However for better satisfaction the complainant again came to Dr. JC Maity at Tamluk on 11.12.2016 who also advised for different pathological reports. As per said advise the complainant again came to Suraksha Diagnostic Centre under Dr. D. Bhattacharya in which the blood group ( ABO & Rh.’D’ ) was found to be ‘O’ positive. Being astonished by the different result of two pathological centre, the complainant again went to Drs. Trivedi & Roy Diagnostic Clinic at Kolkata on 17.12.2016 wherein also the blood group was reported as ‘O’ positive. Being stunned by such report, the complainant again came to the OPs centre for her blood test and this time one Dr. U Goswami reported after examination of the blood as ‘O’ positive. It is the allegation of the complainant that the examination of the blood of the complainant was done with gross negligence of the OPs wherein her blood group had been reported as AB positive. The life of the mother and baby in the womb could be at stake if the first report prepared by the OPs could be taken as granted.
Hence, the instant case with the prayers as made in the complaint petition has been filed by the complainant on the allegation of deficiency of service on the part of the OPs.
The OP No. 1 Dr. Rama Saha has contested the complaint by filing written version and denied all the material allegations and claimed dismissal of the complaint in various grounds.
The positive assertion of this OP is that presently he has been serving at ESI Post Graduate Institute of Medial Sciences and Research Hospital, Maniktala, Kolkata and she served under the OP no. 2 only for three months - from the middle of September 2016 to middle of December 2016. The complainant came to that pathology centre for testing her blood grouping and he only signed the report as a pathologist after it was duly checked by Sri Debraj Kundu, the laboratory technician. In this connection this OP states that the blood test report is a computer generated report and it was duly checked by the laboratory technician before getting his signature. He also asserts that there is always 5% chance of error in pathological tests due to some unforeseen reasons. This OP also disputed that there is no iota of evidence in favour of the complainant which could establish the report made by them as wrong one.
OP No. 2 also contested the case by filing questionnaires against the examination in-chief on affidavit filed by the complainant.
On the pleadings of the parties as above, the following issues need be considered (1) whether the case is maintainable and whether the complainant is entitled to get the reliefs as prayed for.
DECISION WITH REASONS.
Both the points are taken up together for discussion for the sake of convenience and brevity.
Perused the complaint, the written version of the OP no. 1 and the affidavit in chief of the complainant and questionnaires filed by both the OPs and the reply thereof filed by the complainant. Heard the argument as advanced by the Ld. Advocate for both sides.
The OP no.1 has stated in his written version that at present he is posted as ESI Post Graduate Institute of Medical Science and Research Centre Maniktala as Kolkata as Pathologist. He was attached to the OP no.2 for a period of three months on and from middle of September 2016 upto middle of December, 2016. On 26.11.2016 the complainant visited the hospital for doing some post pregnancy tests and blood grouping with Rh (D) factor. On payment of prescribed fees for advised blood tests the petitioner had given blood samples for such tests. He signed the blood test report after it was being duly checked by Sri Debraj Kundu the laboratory assistant/technician, as prescribed and standard norms and also prepared the test report on the basis of the test result. The OP no.1 asserts that there was no disorder or irregularity in said blood test report. OP no.1 ‘s version is that the blood test reports are all computer generated and the said reports are usually verified by the pathological laboratory technicians. He also contended that as per settled principles of medical science, there is a chance of 5% error in pathological tests due to some unforeseen reasons. In this regard the OP No. 1 has filed the photo copy of Dacie and Lewis Practical Haematology, 11th Edition. Chapter 22 page 519 to 528 and Essentials of Clinical Pathology by Shrish M. Kawthalkar chapter 34 paged from 336 to 340 which have been marked as Annexure 13 and 16 respectively.
OP no. 1 in this connection denied any negligence on his part.
But it is clear from the record that the report which was delivered to the complainant on 08.12.2016 in which the blood group test report dated 26.11.2016 duly signed by the OP no.1 reflects that the blood group of the complainant is AB +. The complainant for better satisfaction and treatment went to another reputed Gynecologist Dr. J.C. Maity at Tamluk on 11.12.2016 who also advised for pathological test including blood group test. Then the complainant came to New Suraksha Diagnostic Centre under Dr. D. Bhattachayra at Tamluk Hospital More on 11.12.16 where the report was found to be O +. Being stunned by such contrary report she again made her blood group tested at Roy and Tribedi Diagnostic Centre at Kalkata on 17.12.16 where also the group was found to be O+. For such contradictin, the complainant again went to the diagnostic centre of the OP no.2 for such test and this time one Dr. U. Goswami confirmed her blood group as O+.
The complainant has filed all the reports and we have also perused all the reports along with the literatures filed by the OP no.1
In this connection we want to refer a case where Deo Kumar Sing’s wife Smt. Geeta Singh was examined by one Dr. Smt. Rekha Prasad at Patna on 24.09.1991 when she was found to be pregnant for two months. As Smt. Singh was complaining of pain in stomach, she was given some medicines and was asked to get the blood test done. Accordingly the complainant took his wife to the OP , Mayur Laboratories for the blood test. The OP in its report of the same date 24.09.1991 stated that Smt. Geeta Singh’s blood group was Rh Positive A. In spite of treatment given by the attendant Dr. Rekha Prasad, on the basis of the blood test report, Smt. Geeta Singh continued to have problems and she was advised to go in for an abortion. Accordingly, Smt. Geeta Singh aborted the child. Subsequently, she conceived again for a second time. Though she approached Dr. Rekha Prasad well in time and took complete bed rest, there was bleeding and she again had to have an abortion. Smt. Geeta Singh conceived for the third time. She had been consulting Dr. Rekha Prasad right from the beginning, and, in spite of some complications, of the previous unhappy episodes, this time, she consulted another lady Doctor, Dr. (Smt.) Kiran Verma on 13.9.1997 who prescribed some blood tests.
The complainant got his wife’s blood tested on the same day in Sarkar Laboratories, which gave a report dated 13.9.1997 stating that the blood group was Rh Negative. This blood report was totally at variance with the previous report given by the opposite party as far as Rh factor is concerned. While report of 1997 given by Sarkar Laboratories showed the Rh factor as negative. It is a well established fact that the Rh factor remains permanent and does not change in a person.
The complainant in that case alleged that after the second report came, Dr. Kiran Verma told him that all the previous complications were because of the first wrong blood report which showed the Rh factor as positive whereas, in reality, it was Rh Negative. The treatment given by the earlier Doctor was on the basis of wrong blood report and hence the reasons for the complications could not be properly assessed. Further, even the fourth pregnancy could not be saved because the correct blood report was obtained at a later stage, and there was a delay in her treatment, which was based on an incorrect blood report, and complications had already started. Hence, the complainant approached the Bihar State Commission claiming a compensation of Rs. 10 Lakh from the opposite party for having given a false blood report on an important matter like the Rh factor which prevented Doctors from taking appropriate line of treatment.
The State Commission dismissed the complaint; the complainant filed an appeal before National Commission (NC). The NC observed that that the State Commission has failed to take into account some of the evidence on record and totally misjudged the issue. The complainant has brought to notice a third blood report dated 13.9.2002 from a Pathological Laboratory, Kumar Janch Ghar, Patna showing the blood group of Geeta Singh as: A Rh Negative. Thus, there is no doubt that the first report given by the opposite party that the blood group as: Rh positive is totally a wrong report. The National Commission further held that the Rh factor does not affect the general health but it plays an extremely important role during pregnancy.
Hon’ble National Commission in 2008 (1) CPJ 205 (NC) observed that there is no need to obtain any further expert opinion and there was total failure on the part of the OP in exercising adequate care and analyzing the blood.
In 1995 (2) CPR 473 (Kerala) also the State Commission confirmed a Judgment of District Forum imposing compensation on the OP on the same score.
In this case considering the affidavit in-chief and cross-examination by the OP no 1 and 2 and admission of the OP no.1 regarding the different between the reports and also difference between the reports of the same diagnostic centre, the OP no. 2 clearly show that the OP no. 1 and 2 were negligent and there was deficiency of service on their part in analyzing the blood of the complainant and preparation of her blood group and they cannot avoid their liability to pay compensation to the complainant as the wrong blood group report could definitely affect the life of the complainant if she did not caused it tested in other places at her own volition.
Hence, considering the entire materials on record and every circumstances and performance of the OP Nos. 1 and 2 we hold that the OPs should pay jointly and severally a sum of Rs. 50,000/- to the complainant for medical negligence and deficiency of service and a sum of Rs. 10,000/- towards litigation cost.
In view of the aforesaid discussions the complaint be and the same be allowed against the OPs on contest.
Both the points are answered accordingly.
Hence, it is
O R D E R E D
That CC/ 169 of 2017 be and the same is allowed on contest against the OPs.
The OP No.1 Dr. Rama Saha and OP No. 2, the Director of the ICARE Institute of Medical Science of Hospital, Haldia, Purba Medinipur are jointly and severally directed to pay the complainant a sum of Rs 50,000/- as compensation and a further sum of Rs. 10,000/- towards litigation cost which one month from the date of this order in default the OPs would be liable to pay 10% interest on the awarded amount till its full realization.
Let copy of the judgment be supplied to all the parties free of cost.
