BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.251 of 2014

Date of Instt. 01.08.2014

Date of Decision :18.06.2015

Jyoti wife of Sanjeev Kumar D/o Dr.Ram Lubhaya, at present R/o House No.E.S465, Abadpura, Jalandhar.

..........Complainant Versus

1. Dr.Shangara Singh, Incharge Dr.Shangara Singh Hospital, Jalandhar Nursing Home & Maternity Hospital, 29, Link Road, Jalandhar.

2. Dr.Mrs.Gurpreet Kaur, Gynae Surgeon, Dr.Shangara Singh Hospital, Jalandhar Nursing Home & Maternity Hospital, 29, Link Road, Jalandhar.

3. Lazar Masih, Lab Technician, A.J Clinical Laboratory, Dr.Shangara Singh Hospital, Jalandhar Nursing Home & Maternity Hospital, 29, Link Road, Jalandhar, who prepared the report dated 28.7.2012 of Mrs.Jyoti.

4. Sanjeev Kumar S/o Late Gurmeet Singh R/o 314 Stree No.2, Abadpura, Jalandhar.

5. National Insurance Company Limited, G.T.Road, BMC Chowk, Jalandhar.

.........Opposite parties

Complaint Under Section 1 2 of the Consumer Protection Act.

Before: S. Jaspal Singh Bhatia (President)

Ms. Jyotsna Thatai (Member)

Sh.Parminder Sharma (Member)

Present: Sh.SC Nanda Adv., counsel for complainant.

Sh.Umesh Dhingra Adv., counsel for OPs No.1 to 3.

Sh.Rajesh Arora Adv., counsel for OP No.4.

Sh.Raman Sharma Adv., counsel for OP No.5.

Order

J.S.Bhatia (President)

1. The complainant has filed the present complaint under section 12 of the Consumer Protection Act, against the opposite parties on the averments that the marriage of the complainant was performed with the opposite party No.4 on 25.4.2012 at Dr.BR Ambedkar Bhawan, Near Guru Ravi Dass Chowk, Jalandhar and after the marriage the complainant and the opposite party No.4 lived as husband and wife at Abadpura, Jalandhar and the complainant became pregnant from the loins of the opposite party No.4 and she was having three months pregnancy and after conceiving the child the complainant visited the hospital of the opposite party No.1 for general check-up and medical treatment and the opposite party No.2 then checked up the complainant and after treating the complainant, recommended certain tests and all the details were noted down by the opposite party No.2 and the slip prepared in the name of the complainant by the opposite party No.2 under her writing dated 28.7.2012. On suggestion of opposite party No.2 the complainant was subjected to various test including Hemoglobin, Blood Group, Australia Antigen and HCV Tests and under the guidance of opposite party No.2 and under the supervision of opposite party No.1, the opposite party No.3 performed all the tests mentioned in the slip issued by the opposite party No.3, the lab technician of opposite party No.1 and in which at serial No.10, the HCV test was declared positive by the opposite parties No.1 to 3 and after receiving the report the opposite parties No.2 and 3 also disclosed to the complainant that the HCV test has come as positive which is very dangerous to life. On the declaration of opposite party No.2 that the HCV test is positive of the complainant, the complainant became so frightened and become nervous. On seeing the report of the complainant issued by the opposite parties No.1 to 3 the husband of the complainant i.e opposite party No.4 became furious towards the complainant and started maltreating the complainant on the pretext that the complainant has not disclosed the disease before the marriage. The report issued by the opposite parties No.1 to 3 caused so much tension to the complainant and as a result of which her health started deteriorating. The report in question was issued in connivance of opposite party No.4 and the opposite party No.4 on the basis of the declaration HCV positive started misbehaving with the complainant and also gave taunting remarks and on the basis of this wrong report the opposite party No.4 started saying that he is no more interested to keep the complainant anymore as his wife and he will get the divorce on the basis of diagnose issued by the opposite parties No.1 to 3. The complainant then again got conducted her test from Ghai Hospital, Neuro Surgery, Trauma & Kindney Care Centre, 661, A & B, Guru Teg Bahadur Nagar, Near Guru Ravi Dass Chowk, Jalandhar, Jerath Path Labs, 14, Lind Road ADJ, State Bank of India, Jalandhar, Paramjit Clinic Laboratory & Microbiology Culture Lab, The Coral, 12, Ravi Dass Nagar, Near Ravi Dass/Manbro Chowk, Jalandhar and Sardana Labs, Jalandhar and the result of all four labs concerning HCV was given as negative which shows that infact opposite parties No.1 to 3 at the instance of opposite party No.4 succeeded in issuing wrong report without any basis just to satisfy the wishes of the opposite party No.4 in order to oblige him. It seems that the opposite parties No.1 to 3 at the instance of opposite party No.4 after making conspiracy succeeded in procuring false report of the complainant. Issuing of wrong report without any basis at the instance of someone is a professional misconduct and it further lower down the image of medical profession which is against the medical ethics. By issuing wrong report the opposite parties No.1 to 3 have spoiled the life of the complainant and the matrimonial life of the complainant has been ruined and the husband of the complainant i.e opposite party No.4 has refused to keep the complainant as his wife in his house and further threatened that he will get the divorce from the complainant. On such like averments, alleging deficiency in service, the complainant has prayed for directing the opposite parties to pay her Rs.10 Lacs as damages.

2. Upon notice, opposite parties appeared and filed their written replies. In their join written reply, opposite parties No.1 to 3 pleaded that the present complaint is based upon concealment and withholding of true and correct facts. The complainant has not disclosed the facts of making a complaint to the civil surgeon-cum-inquiry officer, Jalandhar against the opposite parties before the filing of the present complaint. The medical authorities on the basis of the complaint of the present complainant formed a medical board for holding the inquiry/investigation on the allegations of the present complainant and the medical board vide its report dated 18.4.2013 gave its opinion against the complainant. All these facts have been withheld and not disclosed by the complainant in the present complaint as such the present complaint is liable to be dismissed also on this ground. The complainant came to the hospital of the opposite parties on 28.7.2012 for routine Antenatal Check-up. Accordingly the opposite party No.2 examined the patient/complainant and diagnosed her about her pregnancy and advised medicine and investigations. In the investigations, her HCV-1 Test was positive so she was advised confirmatory test i.e RNA Test and medical advice from their physician Dr.Jaswinder Kaur, MD Medicine. Thereafter the patient/complainant again visited the hospital on 30.7.2012 for medical consultation and she was advised confirmatory test i.e RNA Test for confirmation from Jerath Lab, B.S.Diagnostics or Paramjit Lab which is a routine standard practice in any Lab/Hospital. In fact, in the screening test of HCV-1, test came out to tbe positive and accordingly the attendants of the patient was apprised that the said test is the only screening test for HCV and a cross check from another laboratory is required for confirmation. In fact, having the same test from different Lab is routine exercise, which the hospital generally follow but all these facts have been canceled by the complainant and her attendants. The purpose of the cross check has always been made in order to have the confirmation of the result of the test because the same varies sometime because of the quality of test kit as well as time consumed in the test. It is further mentioned that opposite parties conducted a screening test in their lab for HCV with J.Mitra Company Test Kit which is a basic test to detect virus at its preliminary stage. The complainant/patient with J.Mitra Company Test Kit was found positive. However, on the basis of result of cross check test report came out to be negative from Jerath Lab which was brought before the attending doctor, the patient and her husband were apprised that they need not worry at this stage. However, as already submitted above that the screening test in the lab of the opposite parties was the basic test to detect a virus which does not have a 100% specificity that is why patient was advised to have a cross check from some advanced laboratory as mentioned above. The report of Jerath's laboratory was not of screening test rather that test was advanced test (RNA Test) other two reports from Ghai Hospital and Sardana Lab was of screening test, they must have used the different kits because the test may vary with different kits and at different stage. As per medical text "Evaluation of ASSAY" methods and false positive results in the laboratory diagnoses of Hepatitis C virus infection, it has been mentioned that the most common problem in laboratory screening assay of anti HCV is the false positivity of low titers. It has further been reported that there are reported cases of proportion of false positive results which averages approximately 35% (range 15% to 60%). Although present test have better sensitivity and specificity rates then their predecessor, there still exist a high chances of false positive results. In the journal of clinical microbiology, it has been reported that, the rate of false positive Hepatitis-C Virus Enzyme Immunoassay results was determined to be atleast 10% among 1814 reactive serum samples. There is no professional misconduct as alleged. It is wrong that opposite parties No.1 to 3 have given wrong report or spoiled the life of the complainant and her matrimonial life. They denied other material averments of the complainant.

3. In its separate written reply, opposite party No.4 pleaded that he has always been ready and willing to rehabilitate his wife i.e complainant and it is the complainant, who has deserted him without any reasonable cause and even inspite of filing of the petition for restitution of conjugal rites by him. She preferred to contest the said petition but did not prefer company of her husband.

4. In its separate written reply, opposite party No.5 took preliminary objections regarding limitation, maintainability etc. It pleaded that without admitting any liability it is submitted that the opposite party No.5 has insured Jalandhar Nursing Home & Maternity Home only vide policy No.401100/46/12/8700000006 for the period 16.4.2012 to 15.4.2013 under the Professional Indemnity (Medical Establishments) Policy indemnifying the insured in the claims arising out of bodily injury and/or death of any patient caused by or alleged to have been caused by error, omission, or negligence in professional service rendered or which should had been rendered by the insured. It is further mentioned that there is no mention in the policy schedule about insuring of Dr.Shingara Singh Hospital or A.J.Clinical Laboratory. In the present case, there is neither any error nor any omission or negligence on the part of the opposite parties No.1 to 3, as such the complaint is liable to be dismissed. It denied other material averments of the complainant.

5. In support of her complaint, learned counsel for the complainant has tendered into evidence affidavit Ex.CA alongwith copies of documents Ex.C1 to Ex.C19 and closed evidence.

6. On the other hand, learned counsel for opposite parties No.1 to 3 has tendered affidavit Ex.OPA alongwith copies of documents Ex.OP1/A to Ex.OP1/N and closed evidence. Further learned counsel for opposite party No.4 has tendered affidavit Ex.OP4/A alongwith copies of documents Ex.OP4/B and Ex.OP4/C and closed evidence. Further learned counsel for opposite party No.5 has tendered affidavit Ex.OP5/A alongwith copies of documents Ex.OP5/1 and Ex.OP5/2 and closed evidence.

7. We have carefully gone through the record and also heard the learned counsels for the parties.

8. In substance the version of the complainant is that opposite parties No.1 to 3 conducted certain tests including for Hepatitis C Virus and vide report dated 28.7.2012 Ex.C6, the complainant was declared as Hepatitis C Virus positive case. Further according to the complainant, after the report of opposite parties No.1 to 3, she got conducted HCV test from other four laboratories and according to their reports, the test was negative. Further according to the complainant, opposite parties No.1 to 3 gave false report inconvenience with her husband i.e opposite party No.4. On the other hand, according to opposite parties No.1 to 3 HCV test performed upon the complainant was screening test which according to medical literature some time give false report and as such to confirm the presence of HCV, the complainant was advised RNA test which is advanced test to detect for HCV. According to opposite parties No.1 to 3 they have nothing to do with opposite party No.4 i.e husband of the complainant and it appears that they are having some matrimonial dispute. In this case a medical board was constituted by the office of civil surgeon on the representation of the complainant and medical board gave opinion Ex.OP1/F wherein it is mentioned that Hepatitis C serology test by a rapiet kits, can be sometime false positive and it is not very frequent, so utmost care should have been taken in reporting especially positive reporting and it should be printed on report slip that it is a screening test. In the report it is further mentioned that HCV test should be confirmed with Elisa method and patient counselling done in a proper way. So as per report of medical board, the above said test can some time give false positive result. According to medical literature also it is so. As per medical literature Ex.OP1/G on record, "The most common problem in the laboratory screening assay of anti-HCV is the false positivity of lower titers. A confirmatory test is needed to discriminate the false positive results from the accurate ones". In the above said medical literature, it is also mentioned as under:-

"False Positivity of anti-HCV tests"

"Although present tests have better sensitivity and specificity rates than their predecessors, there still exists a high prevalence of false-positive results, especially among low risk group, immunocompromised patients or populations without liver diseases, leading to unnecessary cost-effective health expenditures and confusing diagnostic challenges. The most common problem in the laboratory screening assay to anti-HCV is the false positivity of low titers. Among immunocompetent populations with anti-HCV prevalence less than 10% (e.g volunteer blood donors, military personnel, general population, health care workers, or clients attending sexually transmitted diseases clinics) the proportion of false positive results averages approximately 35% (range 15% to 60%)".

9. So as per medical literature some time false positive results are obtained on HCV test and its percentage is approximately 35%. So confirmatory test is required before the patient is declared HCV positive. In the present case, the patient was advised advanced RNA test which is advanced confirmatory test. This fact is evident from prescription slip dated 30.7.2012 Ex.OP1/L wherein it is mentioned that Adv, HCV-RNA. So, opposite parties No.1 to 3 have advised the patient to undergo advance sensitivity test i.e RNA test to confirm HCV. So in the above circumstance, we are of the view that there is no negligence or deficiency in service on part of the opposite parties No.1 to 3. There is absolutely no evidence on record to prove the version of the complainant that opposite parties No.1 to 3 gave false report in connivance with her husband i.e opposite party No.4. Further according to complainant, opposite party No.4 on the basis of wrong report started saying that he is no more interested to keep her any more and will get divorce on the basis of result of opposite parties No.1 to 3. The opposite party No.4 has placed on record copy of petition under section 9 of Hindu Marriage Act for restitution of conjugal rites Ex.OP4/B filed by him against his wife i.e complainant. So this petition falsify the version of the complainant that on the basis of above said wrong report opposite party No.4 started saying that he is no more interested to keep her any more as his wife and will get divorce from her on the basis of said report. On the basis of screening test regarding HCV conducted by opposite parties No.1 to 3 no treatment was taken by opposite party No.4. As already observed, routine HCV test which is called screening test, sometimes give false positive result and to confirm HCV advance test is required and in this case opposite parties No.1 to 3 have advised the complainant to undergo RNA test for HCV. So in the above circumstance, we are of the opinion that there is no medical negligence or deficiency in service on part of the opposite parties No.1 to 3.

10. In view of above discussion, we hold that there is no merit in the present complaint and same is hereby dismissed with no order as to cost. Copies of the order be sent to the parties free of costs under rules. File be consigned to the record room.

Dated Parminder Sharma Jyotsna Thatai Jaspal Singh Bhatia

18.06.2015 Member Member President