SMT. BANDANA ROY, PRESIDENT

DATE: 28-11-2016

The fact of the complaint in brief is that complainant has a hotel named “HOTEL AHAR” at Bhabanipur PO. Debhog, Purba Medinipur. The complainant was referred by Doctor of ESI-PGIMSR hospital at Haldia for different pathological test at BIO CARE DIAGNASTIC CENTRE. As per pathological report made by Bio Care Diagnostic Centre, OP No.2, SERAM HIV 2 of the complainant was mentioned as Reactive. Being worry, the complainant again went to different diagnostic centre for the same test, but all the reports were HIV – Non Reactive. On the basis of the wrong report made by the OP No.2 the hotel business of the complainant’s wife where the complainant was engaged was seriously hampered as public avoided the hotel of the complainant being a patient of HIV positive.

In the above circumstanced the complainant has prayed for compensation on different heads.

The OP no.1 contested the case by filing written version.  This OP submitted that he is a reputed medical practitioner attached with the clinic of the OP No.2 and contended that the case is not maintainable in the eye of law and equity.

The specific case of the OP NO.1 is that the complainant came to his chamber being referred by the doctor of ESI hospital for examination of blood Serum HIV I and HIV II which was duly done by following ELISA method and it was just a screening test and the complainant was directed for further inquiry and investigation before the appropriate authority, the School of Tropical Medicine. The OP no.1 submits that no person can be held to be negligent or to have any deficiency in service for only screening test done by using an authentic test kit available in the market and done with due care and caution. The OP no.1 has prayed for dismissal of the case of the complainant.

The OP no. 2 also contested the complaint case by filing written version.

This OP contended that the complainant came to the Diagnostic Centre of the OP No.2 namely BIO CARE DIAGNASTIC CENTRE and blood of the complainant was tested there with the result HIV 1 non- reactive and HIV 2 reactive. The said blood was tested and verified by pathologist OP No1.Thereafter being referred by the OP No. 1 the complainant had been to the school of Tropical Medicine for confirmation of the said report as it was the conclusive authority in this regard. The OP No. 2 further contended that the test held in his laboratory was only screening test. The OP no.2 further submitted that he had no intention to give any false or fabricated report and the complainant could not file any documents to establish his case to get the compensation prayed for.

The OP no.2 has prayed for dismissal of the complaint case.

  Point for Decision

Whether the complainant is entitled to get the relief(s) as prayed for.

Decision with reasons

We have meticulously perused the documents submitted by the complainant and documents submits by the OPs. Keeping in mind which has held in Hacs Vs Coal and another (1968)118  CL LJ 469, Lord Denig speaking in court observed as under.

“ A medical practitioner shall not be held liable simply because things went wrong from mis-chance or mis definition  or through an error of judgement in choosing one reasonable course of treatment of any patient in presence of another. A medical practitioner would be liable only where his conduct fails below that of the standards of reasonable and competence  practitioner in his field.’

From the documents filed by the complainant, from Annexure 2 it appears that on 16.09.15 doctor prescribed X-ray (K Knee)  including upper lebia and also  Brufen (UA) HDPC x 3 daysand  also on 19.11.125 doctor advised for testing blood for R/E , PBS, PDBS Urea , createnia, BT ,CI, X-ray  of chest PA view  ECG , and referred to S. OPD of the hospital  for FNAC and  admission. From Annexure 4  it appears that OP NO.2 tested the report of the complainant and it has been reported on 30.12.15  that SERUM  HIV I (done by ELISA Method ) – Non reactive  and  SERUM  HIV II ( done by ELISA Method ) – Reactive .

The patient was referred to Tropical School of Medicine for other investigation and complainant went to the Institute of Medical Science and Research (Report of that Institute is Annexure 5) it appears that it was reported HIV – Non Reactive. Thereafter the patient went to West Bengal Aids Prevention and Control Society which is Annexure 5 from which it appears SERUM of the patient was tested and the result was non-reactive. On 12.02.16 from the report of Annexure 9 it appears that doctor commented “Specimen is negative for HIV antibodies”. From Department of Health and Family Welfare, Government of West Bengal the complainant was tested there and doctor said that patient did not have any problem.

On the other hand the OPs have produced the literature of HIV medicine and from the limitation of test in Clause II/1 which speaks that although a positive result may indicate infection of HIV-1 or HIV-2 virus a diagnosis of Aids can only be made on clinical grounds if an individual meets the case definition of AIDS established for the center for disease Control /WHO) For samples repeatedly tested as positive, more specific, supplement test must be performed,

(2)  It is recommended to always use fresh specimen with this test kit. Specimen which has been frozen and thawed several times contain particulate which can block the immunochromatographic membrane hence, resulting of any slower or no movement of specimen  which may result  into invalid results.

The complainant has stated  that the wrong blood test report as “HIV Reactive   -  given  by the OPs was spread by the OPs  in his locality  and to that effect the general public treated the complainant  as HIV patient  .So ,the social position of the complainant has been totally damaged by the OPs.

Now the question is whether diagnosis of the complainant’s blood was tested correctly.

It appears that report is negative which is seen from all other reports.

An error of judgment has long been distinguished from an act of fullishness or carelessness or lack of knowledge. In our view the OPs failed to take reasonable care while reporting that HIV is active. The reports also does not bear details i.e no gross features of specimen etc.  Thus, it is not a standard method of diagnosis by a pathologist. It has been held in 2016 (2) CPR 529 (NC) that diagnostic errors comprises of substantial and costly fraction of all medical errors. A wrong diagnosis could lead to delayed or inappropriate treatment and may result in a clinical action from a patient who suffered damages.

On the basis  of foregoing discussion, even though we are of considered view that , it was the OPs’ error of  judgment and  diagnosis , the blood report Serum of the patient and the report method adopted  by the  OPs  is just a casual approach i.d carelessness . It is not as per standard of practice, it is an act of omission. The wrong report of HIV active led to unnecessary mental agony and sufferings of the complainant and entire family. Therefore the OPs are liable to that extent only.

The complainant has prayed for Rs. 3 lakhs for loss of social prestige from the OPs.

There are other procedures in law to claim that amount. This Consumer Case Forum cannot pass order of any money regarding loss of social prestige.

Complainant has also prayed for Rs. 5 lakhs for loss of business which cannot be approached  by the Consumer Forum for payment and complainant has prayed for mental agony and anxiety to the tune  of Rs. 1,50,000/-  and litigation cost of Rs. 15,000/-.

Considering all aspects we are of view that a compensation of Rs. 50,000/- for mental and anxiety of the complainant and Rs. 5000/- as litigation cost, if ordered, will serve the purpose of justice.     

Hence it is,

O R D E R E D

That the CC No 38 of 2016 be and the same is allowed on contest in part against the OPs.

The OPs are directed to pay Rs. 50,000/- as compensation  and Rs. 5000/- as litigation cost  to the complainant  within one month from the date of this order, failing which  the OPs  will be liable individually to pay Rs. 100/- per diem  as a punitive charge which will be payable to the Consumer Welfare Fund.

Let the copies of the judgment be supplied to all the parties free of cost.