Order-11.
Date-1309/2017.
Shri Kamal De, President.
This is an application u/s.12 of the C.P. Act, 1986.
Complainant’s case, in short, is that he was suffering in the month of October, 2016 from fever followed by severe abdominal pain, vomiting, nausea as well as loss of appetite and, thereafter, under such physical condition, the complainant went to his physician namely Dr. B.P. Sengupta and underwent thorough treatment under his supervision due to the constant declination of his physical condition. The complainant visited Dr. B.N. Sengupta on 23-10-2016, where he had suggested/prescribed him to go through the tests of SERUM AMYLASE and SERUM LIPASE on an immediate basis, so that the complainant could be diagnosed for his treatment and care. OP3 represented himself to be an authorized blood collector of OP1. OP3 approached complainant for collecting his blood. OP3 also advised the complainant to visit the place of OP1 on 24-10-2016 for collection of blood and also asked the complainant to collect the report of the blood test on the very same day. The complainant visited the place of the OP and OP3 collected the blood of the complainant on 24-10-2016 in presence of OP2. OP2 also, thereafter, handed over the report of the blood test to the complainant. On going through the said report the complainant had found that Serum Lipase was 312.8 u/l which was much above the considered range as normal where the normal range isto be 0-190 and on being anxious the complainant became puzzled and could not sleep at night i.e. on 24-10-2016. The complainant, thereafter, visited Dr. B.N. Sengupta on very next date i.e. 25-10-2016 in order to show to him the blood test report and while going through the same the complainant’s doctor apprehended something wrong for which he again asked the complainant to go through the same blood tests as earlier prescribed by him at any other repudiated Diagnostic Laboratory and upon such suggestion by Dr. B.N. Sengupta, the complainant on 26-10-2016 had again underwent through the same blood tests as conducted previously at the reputed Diagnostic Laboratory namely Dr. Tribedi and Roy Diagnostic Centre and procured the report for the same and after receiving the test report from the said Drs. Trivedi and Roy, the complainant was down fallen to see that his Serum Lipase was found to be 35 units instead of 312.8 as reported by the OPs. The complainant thereafter again visited Dr. B.N. Sengupta on 26-10-2016 with the blood test report from Dr. Tribedi and Roy. The complainant has alleged fake and improper blood test report performed by the OPs. The complainant has also alleged deficiency in service against the OPs. It is stated that the complainant suffered mental and physical harassment and that the OPs had also adopted unfair trade practice in preparing and furnishing such false and fictitious diagnostic reports. The complainant has also alleged medical negligence against the OPs. The complainant sent a legal notice dated 03-11-2016 seeking clarification regarding the false blood test reports. OP also applied.to the same denying all the allegations. It is stated that OPs have been deficient in rendering services and have also indulged in unfair trade practice. The complainant has prayed for an amount of Rs.1 lakh as compensation along with other reliefs in terms of prayers in the petition of complaint.
OP1 has contested the case in filing written version contending, inter alia, that the case is not maintainable in law and in fact. It is stated that the complainant has suppressed the material fact. It is stated that the sample which was used for the test was actually collected by one Mr. Biswajit Dey, being the OP3 who came on 24-10-2016 with a sample of blood which was labelled in the name of patient Mr. Gangaram Shaw for serumbilirubin amylase and serum lipase, OP3 is an independent blood collector and a sample was handed over to OP1. OP1 states that the sample was tested by Erba Chem-7 machine manufactured by Transasia Biomedical Ltd. which was purchased on 31-03-2016. OP states that the sample was inserted in the machine which was fully automatic and there is no scope of human interference and the report of the patient was generated automatically. The sample was re-checked for another two times as the report was beyond the normal limit but the report came in the same range. As the report was abnormal OP3 was contacted and the complainant was requested to provide a further sample but the complainant did not provide. OP1 was asked to give him earlier report. The serum bilirubin amylase and serum lipase came very high. Due to such abnormal finding OP1 offered to the complainant a re-test free of cost but the independent collector was not able to arrange for. It is stated that OP1 has no fault or negligence onits part and there is no deficiency in service and as such the complainant is not at all entitled to any compensation. OP has prayed for dismissal of the case.
OP2 has also contested the case in filing written version contending, inter alia, that the case is not maintainable in fact and in law. It is stated that on 24-10-2016 one Mr. Biswajit Dey, OP3 who is an independent blood collection had come to OP laboratory with blood sample which was labelled in the name of the complainant for serum bilirubin amylase and serum lipase. OP2 did not have any knowledge as to how the said blood sample was collected or stored prior to bringing in the laboratory. Thereafter, upon receiving the blood sample as per usual process and protocol the OP laboratory, the blood sample was inserted in the machine for testing. OP laboratory uses Erba Chem – 7 machine which is manufactured by Transasia Biomedical Ltd. which is a fully automatic machine with no scope of human interference and the results were generated automatically as well. After testing the said serum of the complainant and upon finding the results of serum lipase to be abnormally high (312.8 I.U/Litre) from the normal range (0-190), the said blood sample was cross-checked twice and the results that came out were the same.
OP3 Blood Collector was contacted as the report was abnormally high. It is denied that the complainant was induced to test his blood at the OP laboratory with his blood being collected by OP3 in presence of OP2, pathologist doctor. Moreover, at no point of time did the OP2 doctor ever hand over the test reports of the complainant. In fact, handing over of blood report is not the duty of the pathologist. OP2 doctor also requested OP3 to get another blood sample of the complainant for further corroboration but unfortunately he could not obtain the same. It is stated that the blood for test was brought to the OP laboratory by OP3. It is stated that the complainant has filed the case for illegal gains. It is stated that the blood was collected and brought by OP3 and, as such OP2 did not have any knowledge as to the mode of storage, date of collection etc. which are vital and crucial in coming up with accurate outcome. It is stated that it is not clear whether complainant was under any medication or not when he had given his blood to Dr. Tribedi & Roy Diagnostic laboratory for the testing serum lipase since such medication can definitely have some effect on the test result. So, OP2 cannot be held liable for medical negligence in the event of occurrence of such abnormal test values. This OP has also denied the allegation of deficiency in service or unfair trade practice. This OP has prayed for dismissal of the case.
OP3 has not contested the case, so the case has proceeded ex parte against OP3.
Point for Decision
- Whether the OPs or any of them have or has been deficient in rendering services to the complainant?
- Whether the OPs or any of the OPs have /has indulged in unfair trade practice?
- Whether the complainant is entitled to get the relief as prayed for?
Decision with Reasons
We take up all the points together for the sake of brevity of discussion and convenience.
Let us take a look towards the documents on record as filed by the complainant – Xerox copy of report of Bio Chemistry dated 24-10-2016, Xerox copy of report Dr. Trivedy and Roy dated 26-10-2016, Xerox copy of legal notice dated 03-11-2016 and other documents on record.
It appears that the complainant was suffering from fever, abdominal pain, vomiting, nausea, loss of appetite and under such physical condition the complainant consulted with Dr. B.N. Sengupta who examined the complainant and advised tests of serum amylase and serum lipase on an immediate basis. OP1 is a firm engaged in business of pathological and clinical tests, OP2 is consultant pathologist of the said laboratory. The blood sample was collected by OP3 and deposited with OP1 for tests for serum billirubin and serum lipase. The report of serum amylase was correct, at least there is no grievance or allegation against the report of serum bilirubin but the result of serum lipase was abnormally high (312.8 IU Litre whereas the normal range is 0-190. The said blood sample was cross-checked twice and the result came up the same. The subsequent blood test was done at Dr. Tribedy and Roy Centre and it reveals that the result of serum lipase is within normal range i.e. 35 units. We find that the complainant suffered mentally for such incorrect report on the part of OPs1 and 2. It is stated from the side of OPs 1 and 2 that the blood of the complainant was collected by OP3 being an independent collector and the blood sample as per usual process and protocol of the OP laboratory was inserted in the machine Erba Chem – 7 for testing. It is the specific contention of the contesting OP that the blood of the complainant was collected by collector OP3 and usually blood is collected by the collector and stored as per standard norm and protocol which in turn is tested and the report is usually prepared by the qualified pathologist. It is stated that the quality of the report gets gradually affected if the blood collection or storage is not correct. It is also argued that since OP3 collected the blood,the contesting OPs have no fault in the matter. Moreover, he(OP3) is an independent blood collector. The question is why OP laboratory allowed or accepted OP3 to collect or deposit blood sample with OP1, if he is not attached with OP1 or if OP1 or OP2 has no faith on OP3? It is not expected or desirable that OP1 would accept any blood sample being collected or deposited by any collector or person. The contesting OPs as such cannot absolve their responsibilities in the matter. It is also stated from the said of contesting OPs that the complainant may be said under any medication when he had given his blood to Dr. Tribedi and Roy for testing serum lipase since such medicationdefinitely has some effect on the test result but we find that the OP moved to Dr. Tribedi and Roy on the very next date i.e. 26-10-2016. It is hard to accept that the test value would decline sharply from 312.8 I/U Litre to 35 units. We find that the report of serum lipase was vague, improper and the OPs cannot absolve their responsibility for such improper blood test report. We also find that the complainant had to spend sleepless night for such fault and incorrect report of OP Institute. We think that there has been breach of duty on the part of the OPs. We must say that there was negligence and deficiency in rendering services in the manner of collection of blood,blood test and preparation of report. OPs have failed to provide accepted standard of care in collecting and testing blood sample and preparing the report. The complainant has been able to establish deficiency in service on the part of the OPs. We think that OPs are jointly and severally liable for the whole consequences and improper blood test report as discussed earlier. It would not be out of place to mention that if machine Erba Chem – 7 produced the erroneous result, it may be the machine suffered from defect or otherwise. OP1 is of course responsible for the same.
We must not be oblivious of the fact that the treatment of the patient depends on the test report. Unfortunately the pathological laboratories or the pathologist doctors attached to such institute do not exert proper care, protection and mind in testing and preparing the report of the patients at large, as a consequence the patients at large suffer and fall victim to medical negligence and or treatment. It is of no excuse that complainant was contacted and asked for 2ndtime test free of cost. The main question is faith – when it is lost, it is lost forever. Presumably complainant lost faith upon OP1 laboratory or upon the pathologist attached with OP1. So, he moved to Dr. Tribedy and Roy and the report shows serum lipase at 35 units instead of 312.8 as reported by OPs1 and 2. We think that OPs have administered a gesture of negligence and deficiency in service while taking blood from blood collector, processing and preparation of report. Consequently, the case merits success.
Hence,
Ordered
That the instant case be and the same is allowed on contest against OPs1 and 2 and ex parte against OP3.
OPs are jointly and severally directed to pay an amount of Rs.1 lakh to the complainant as compensation for causing harassment and mental pain and agony apart from litigation cost of Rs.10,000/- within one month from the date of order.
Failure to comply with the order will entitle the complainant to put the order into execution under appropriate provision in C.P. Act.
