SRI.K. VIJAYAKUMARAN, PRESIDENT. This complaint filed by the complainant for realization, compensation etc. The averments in the complaint can be briefly summarized as follows: The complainant who is the mother of two daughters approached the opp.party at her hospital on 10.4.2006 in connection with certain gynecological problems. The opp.party after investigation advised the complainant to be admitted in these hospital, Pulamon So on 11.4.2006 the complainant got herself admitted in the hospital in room No.216. After clinical investigation and check up it was informed that the complainant is a Hepatitis B patient and the hematology report was given . The opp.party informed the complainant that the treatment for the above disease is costly and after treatment she was discharged on the same day after paying bill of Rs.4600/-. After discharge because of the mental agony the complainant was constrained to approach a doctor at Thiruvalla and on the advise of that Doctor the blood of the complainant was again tested on 13.4.2006 and the result was HBs Ag Negative. Due to the report of the opp.party the complainant suffered mental agony considering the fact that she was infected with a dreaded disease. It is on account of the misdirected investigation and procedural error in the treatment the complainant suffered mental agony There was also irresponsibility on the part of opp.party. The mental agony caused to the complainant is not capable of being assessed in terms of money . However she has limited the claim at Rs.1,00,000/- . Hence the complaint. The opp.party filed version contending interalia, that the complaint is not maintainable either in law or on facts. The opp.party is a consultant Gynecologist working in Mythri Hospital, Pulamon, Kottarakkara. The complainant consulted the opp.party on 10.4.2006 with the complaints of Amenorrhea of 1½ months duration and she wanted termination of pregnancy. Since the complainant had already 2 children the opp.party suggested for the MTP and she was admitted for MTP on 11.4.2006 and the necessary investigations were done. At the time of investigation it was noted that the patient was HBs Ag positive. On informing the patient that she she is HBS Ag positive she admitted that her husband was HBS Ag Positive a few months back hence it was decided to examine the husband’s blood also which was reported as BHs Ag negative. After signing the informed consent the complainant underwent MTP on 11.4.2006 and since the postoperative period was uneventful she was discharged on the same evening with proper advice and medication. The opp.party has done all the required treatment in the interest of the health and safety of the patient . All the necessary precautions were taken while doing the procedure since the disease can be easily transmitted through blood. The opp.party is in no way involved in the examination of blood, but the same was examined by the Lab Technician of the opp.party’s hospital who is a well qualified person with 15 years experience. The report was given based on the blood collected from the patient who was admitted in the hospital and the opp.party has no doubt regarding the authenticity of the blood sample. Based on the above report the opp.party has treated the patient . The opp.party cannot accept the authenticity of the report produced by the complainant from Doctor’s Diagnostic and Physiotherapy Centre as the opp.party is not sure if the blood collected is from the complainant itself or if the Lab Technician of Doctors Diagnostic and Physiotherapy Centre has examined the blood properly. Even assuming that the blood examination result of the Lab under the opp.party’s hospital has given factually wrong report the treating Gynecologist who had relied on such report is not negligent especially when the spouse of the patient had a history of HBs Ag positive. The complainant also admits that her husband was HBs Ag positive a few months back with further proves that she could be HBs Ag positive since the disease is transmitted following sexual contact. Hence the allegation that the opp.party is irresponsible is denied. The compensation claimed under different heads are exaggerated and without any basis. The complainant is trying to make fortune out of misfortune through the case. The case is bad for non-joinder of necessary party. The hospital or the Laboratory is not made a party. Hence the opp.party prays to dismiss the complaint. Points that would arise for consideration are: 1. Whether there is deficiency in service on the part of the opp.party 2. Reliefs and costs. For the complainant PW.1 is examined. Ext.P1 to P7 are marked. For the opp.party DW.1 is examined. Ext. D1 to D3 are marked. Points 1 and 2 The case of the complainant is that on 10.4.2006 she approached the opp.aprty with certain gynecological problems and the opp.party advised MTP for which she was subjected to various tests including blood test and the opp.party due to her negligence told the complainant that the report of her blood test shows that the complainant is affected with the dreaded disease of Hepatitis B. The opp.party has also charged huge sum for the surgery stating that since the complainant is affected with hepatitis B additional precautions are necessary at the time of surgery. Since the complainant was dissatisfied with Ext.P2 blood report she conducted blood test at the Doctors Dignostic and physiotherapy centre who issued Ext.P5 report of blood test which showed that she was Hepatitis B negative. According to the complainant the opp.party has falsely stated to her that she was affected by the disease and extracted additional amount causing mental agony and fear of death on the complainant. The case of the opp.party is that when the routine blood test of the complainant was done in connection with MTP Ext.P2 report of blood test showed that the complainant was HBs Ag positive and so she had to take necessary precautions at the time of MTP for which additional surgical consumables were required. According to the opp.party there was nothing to disbelieve Ext.P2 as the blood of complainant was taken at the opp.party’s hospital and the test was conducted by the Laboratory Technical who was well experienced. It is the further case of the opp.party that there was no reason to doubt the result as the husband of the complainant was also had Hepatitis B. The learned counsel for the opp.party would argue that Ext.P5 relied on by the complainant to show that Ext.P2 is false cannot be accepted as the same was not properly proved through the Lab Technician who issued Ext.P5. It is the further case that at the time when Ext.P5 was issued there is a chance of zero conversion which may lead to negative result and that zero conversion can occur in every patient after completion of transformation period and in the case of complainant the subsequent result Ext.P5 can be after the zero conversion and so Ext.P2 cannot be said to be a false one. There is force in the contention that the finding in Ext.P5 can be said to be proper only if the Lab Technician who prepared Ext.P5 is examined. The learned counsel for the opp.party would canvass the point that blood results might differ due to intake of certain medicines and antibiotics relying on the decision reported in 2007 [3] CPJ 61. In Susheel Kumar V/s Dr. Virendra Mahla and another 2007 [3] CPR 17 the National Commission has held that complaint about giving of wrong blood test cannot be decided on the basis of another conflicting report in which the basis of reaching the conclusion has not been disclosed. In the case in hand the Lab Technician who prepared Ext.P5 report was not examined to establish the basis of his findings. So as argued by the opp.party Ext.P2 cannot be said to be a wrong report on the basis of Ext.P5, the subsequent report prepared after 3 days. When Ext.P2desclosed that the complainant was HBs Ag positive every prudent doctor treating such a patient will take adequate additional precautions for preventing such infection to the doctor and the nursing staff assisting them in the theatre. It is to be noted that the opp.party has arrived at the conclusion that the complainant is HBs Ag positive on the basis of Ext.P2, which, as already pointed out is not proved to be a false one conclusively. Either the Lab Technician who prepared Ext.P2 or the hospital is not a party to the proceedings. As argued by the learned counsel for the opp.party even if there is any factual error or mistake in Ext.P2 report the Lab Technician and the hospital Management alone can be held liable. The opp.party is in no way connected with the preparation of Hematology report and the complainant herself has also no specific allegation against opp.party regarding this aspect. In Sri Suman Jain V/s. Insol Territory care Hospital 2003 [1] CPR 131 it has been held that variance in opinion of two pathologists cannot be made basis of holding that the pathologist was medically negligent. The complainant has no case that there is any negligence or deficiency in service on the part of the opp.party in the treatment or the surgical proceeding undergone by her. But she is attributing negligence on the opp.party on the basis of Ext.P2 which is prepared by the pathologist who is not even a party in the complaint . Negligence if at all any is on the part of the pathologist for which the opp.party, for the reasons discussed above, cannot be held liable. It is also worth pointing out in this context that the evidence of the opp.party remains unimpeached. She was not even cross examined by the complainant. For all that has been discussed above we find that there is no medical negligence or deficiency in service on the part of the opp.party. Point found accordingly. In the result the complaint fails and the same is hereby dismissed. No costs. Dated this the 20th day of July, 2009 I N D E X List of witnesses for the complainant PW.1. – Bindu Vinod List of documents for the complainant P1. – Hospital Bill No.3877 dt. 11.4.2006.
P2. – Hematology report dt. 11.4.2006. P3. – OP. ticket dated 10.4.2006 P4. – Acknowledgement card dt. 29.4.2006 P5. – Hematology report dt. 13.4.2006 P6. – Postal receipt dt. 28.4.2006 P7. - Advocate notice dt. 28.4.2006 List of witnesses for the opp.party DW.1. – Dr. Suchithra List of documents for the opp.party D1. – Case sheet D2. – Reply notice P3. – Postal acknowledgement | 
