Tamil Nadu

StateCommission

FA/871/2011

K.U.BHAVANI - Complainant(s)

Versus

MARUTHI BLOOD BANK - Opp.Party(s)

GANESAN

02 Sep 2015

ORDER

BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI

                      BEFORE        Thiru. A.K.ANNAMALAI               PRESIDING JUDICIAL MEMBER 

                                               Tmt. P. BAKIYAVATHI                                                       MEMBER

F.A.NO. 871/2011 & F.A.No.138/2012

(Against order in C.C. No.124/2007

DCDRF, Salem Dated 26.7.2011)

 

DATED THIS THE 2^ND  DAY OF SEPTEMBER 2015

                                                                                        COMMON ORDER

 

 F.A.NO. 871/2011

                                         

1. Dr. K.U.Bhavani,

Bhavani Hospital,

20, Ragavan Street,

Swarnapuri,

Salem 636 001

 

2. Maruthi Blood Bank,

Bharat Hospital,

Bye-pass Road

Salem 636 005                                   ..Appellant/opp.parties 1 and 2

                                      Vs

 

Srimathi. Revathi

W/o Padmanaban @ Krishnakumar

69/11, Bazaar street,

Pappireddipatti village

Dharmapuri District                            ..Respondent/ complainant  

 

Counsel for the Appellant/opp.parties 1 and 2    : M/s K.Ganesan

Counsel for the Respondent/ complainant          : M/s J.H.Batcha

 

 

F.A.No.138/2012

 

Revathi

W/o Padmanaban @ Krishnakumar

69/11, Bazaar street,

Pappireddipatti village

Dharmapuri District                                          ..Appellant/complainant

                                         Vs

1. Dr. K.U.Bhavani,

Bhavani Hospital,

20, Ragavan Street,

Swarnapuri,

Salem 636 001

 

2. Maruthi Blood Bank,

Bharat Hospital,

Bye-pass Road

Salem 636 005                                 ..Respondents/opposite parties 1&2

 

Counsel for the Appellant/complainant  : M/s J.H.Batcha

Counsel for the Respondents/opposite parties : M/s V.Ramakrishna

         

          This appeal coming before us for hearing finally on 7.8.2015 upon hearing the arguments on both side, perusing the documents, lower court records, and the order passed by the District Forum, Salem, this commission made the following common order.

THIRU.A.K.ANNAMALAI,  PRESIDING JUDICIAL MEMBER

 

1.        The opposite parties are the appellants in FA 871/2011 and the complainant is the appellant in FA 138/2012 and these two appeals are arisen against the order passed in District Forum in CC. 124/2007 dated 26.7.2011.

 

2.    The gist of the case for the purpose of the appeals is as follows:-

          The complainant was suffering from pain while urinating, she consulted the 1^st opposite party and on clinical test diagnosed that there was a cyst in the left ovary of the complainant and suggested total abdominal hysterectomy with left ovario tomy. The complainant was admitted in the first opposite party hospital on 28.7.2006 and she was under the treatment of the 1^st opposite party till 7.8.2006 and surgery was performed on 31.7.2006 and one unit of B positive blood was transfused to the complainant before operation on 28.7.2006 and one unit of B positive whole blood was transfused to the complainant during surgery on 31.7.2006. After surgery, the complainant was suffering from swelling and pain on the left abdominal region and she consulted the first opposite party who suggested the blood test and also prescribed some medicines. But the treatment did not cured the swelling and pain and so the complainant  again consulted the 1^st opposite party during October 2006 and the 1^st opposite party conducted urine analysis in the laboratory of her hospital, but the cause for the pain and swelling was not disclosed to the complainant. Instead the 1^st opposite party advised the complainant to consult some other Doctors.  For the same  on 30.11.2006 at Vidya Hospital, Dr.P.Shanmugam diagnosed that the complainant was affected with HIV-I virus and so the confirmatory test for anti bodies and HIV-I and HIV-II Western blot  test was conducted and it was confirmed that the same and her husband’s blood was also tested and it was not reactive to HIV virus.

 

3.               In the Vidya hospital, she was diagnosed that the pain and swelling on the lower abdominal region of the complainant was due to incisive the hysterectomy on the complainant due to negligence of the 1^st opposite party while performing the hysterectomy on the complaint. She was advised to consult Government hospital, Salem as she had HIV, there she was advised to refer to CMC hospital, Vellore and got admitted there on 31.1.2007 and the surgery was performed on her for the incisional hernia as an inpatient from 31.1.2007 to 6.2.2007. The 1^st opposite party secured blood from the 2^nd opposite party and administered it on the complainant. The second opposite party has not supplied blood free from any virus and it was also an act of negligence on the part of the 2^nd opposite party in supplying the blood without testing it properly.  The complainant undergone a trauma since she was affected with HIV-I virus and she has stopped attending the school and she is under treatment with ART center, Salem Continuously.

 

4.          After issuing a legal notice she filed a consumer complaint praying for directing the opposite parties 1 and 2 to pay a sum of Rs. 16,50,000/- as compensation.  

 

5.        The 2^nd opposite party denied the allegations that the blood supply to the complainant was duly tested  as per the norms of the rules and regulations and there is no negligence and deficiency in service on their part as for as the 1^st opposite party is concerned admitting treatment given to the complainant relating to earlier hernia hysterectomy and alleged incisional hernia in no way connected with the treatment given by the 1^st opposite party and she was advised for further management with some other hospital, the incisional hernia  caused by thickening or stretching of scar tissue that forms after surgery. This weakened scar tissue then creates a weakness in the abdominal wall. excessive weight gain, physical activity that places pressure on the abdomen, pregnancy, straining during bowel movements because of constipation, severe vomiting or chronic and intense coughing causes the scar tissue to thickness or stretch. Because the abdominal wall is weak, the hernia occurs during abdominal strain. Not all abdominal surgeries will lead to incision hernia, but any full thickness abdominal incision can leave a weakness and make that area prone to hernia. The 1^st opposite party has got herself insured with the United India Insurance Company to indemnify her in case of any of these cases is attached to facilitate to add the insurance company as a necessary party to this proceedings. Incisional Hernia can happen due to inherent defect in the body and the allegation of HIV infection by transfusion is not real. Hence it is prayed to dismiss the complaint with cost of Rs.10,000/-.

 

6.         On the basis of both side material and after an enquiry, the District Forum came to the conclusion that there was negligence and deficiency in service on the part of the opposite parties and directed the opposite parties 1 and 2 jointly and severally to pay a sum of Rs. 3 lakhs as compensation towards mental agony due to the deficiency in service committed by the opposite parties and Rs.5000/- as costs.

 

7.             With these grounds, aggrieved by the impugned order, not satisfied with the award,  the complainant has come forward with this appeal in FA 138/2012 and the opposite parties challenging the decision filed an appeal in F.A.No. 871/2011.

 

8.              Since both these appeals have arisen against one and the same order passed in CC.No. 124/2007 dated 26.7.2011. Both these appeals are taken together for hearing and after hearing both sides and on perusal of the materials, the common order being passed.

 

FA.No.871/2011

 

9.             The appellant/opposite parties contended that the District Forum erroneously allowed the complaint without taking into consideration of the materials relied upon by the opposite parties and thereby the appeal to be allowed on the following grounds. 

       The complainant contended that the 1^st opposite party secured blood from the 2^nd opposite party and administered it on the complainant. The second opposite party has supplied blood free from any virus and it was also an act of negligence on the part of the 2^nd opposite party in supplying the blood without testing it properly. The complainant undergone a trauma since she was affected with HIV-I virus and she has stopped attending the school and she is under treatment with ART Center, Government Mohan Kumaramangalam Medical College Hospital, Salem continuously.

   

10.        For these, the learned counsel for appellants contended that the District Forum violated its own order in this regard and in view of the petition filed by the 2^nd opposite party in CMP 194/2010 which was allowed to receive the additional documents on the side of the 2^nd opposite party and as per that 3 documents were filed by the 2^nd opposite party relating to the blood test donars and collection Register extract which was relating monthly information for blood banks and the blood bank information checklist with observation of  the inspection report for grant of license to the Maruthi Blood bank with the inspection report in which it is observed that the records maintenance and procedures followed regarding blood receipts and supply, it was found to be satisfactorily. This was not considered by the District Forum while passing the judgment and observed the details against the 2^nd opposite party in para 51 The opposite parties contended that the District Forum erroneously observed that the 2^nd opposite party has not marked the entire master records including the names of the donors of the blood to the complainant. The complainant could not investigate about the previous history and future act of the donors. Whereas on perusal of the additional documents relied upon by the 2^nd opposite party in the master book extract and other documents which are marked as Ex.B.3 to B.5, the details are available regarding the donors of blood given to the complainant and in blood analysis, the HIV reaction is mentioned as negative in Sl.No. 90, 97 and 98 which all said to have been supplied to the complainant and also on perusal of the serial No.94 in which the result of HBsAg found to be positive which was discarded and as per Ex.B.4 and B.5, nothing to elicit any possibilities  of HIV  viral infected blood supplied to the 1^st opposite party and the inspection report of the authorities to the 2^nd opposite party have also certified that the 2^nd opposite party followed rules and regulations, procedures to the satisfaction, further it was argued that the HIV virus affected person cannot be diagnosed at the initial stage even through the blood test as the HIV viral taken 6 to 7 months for the bloating time and expose the positive which should also be confirmed with other mode of confirmative tests and at the time of testing of the complainant she may not have the positive result due to initial stage of viral affected and her husband also like the same which may subsequently persons of HIV confirmed by conformity test and revealed that she had at ART center, treatment continuously going on taking treatment.

 

11.     The learned counsel relied upon the case reported in the case of R.Selvakumar Vs Project Director and others that Ref.No.22963/D2/3/97,(Madras High Court) dated 4.12.1997 that all the blood banks are instructed to send the monthly report on blood collection and disposal to the Tamil Nadu State AIDS Control Society, Chennai-8, and for this purpose, all the blood banks in the state have complied with the above instructions of the Director of Drugs Control and as per this judgment on the date of the judgment delivered all the blood banks have complied and as the complainant is said to have been taking treatment at ART centre, Salem, if they had even suspected that it was HIV due to blood transfusion the same would have been confirmed by the TANSAC, which is the another wing of ART under TANSAC, whereby it is also crystal clear that the work would have been taken by TANSAC. Hence no professional donor made the blood donation and the alleged cause of the chance to find out whether it was by a professional donor by the finding has no relevance. The positive evidence of the opposite parties having not been considered by the forum makes the finding or the District Forum is not legally sustainable. Thus the ART centre of Salem which has treated the complainant has nowhere concluded that the source of alleged information is due to transfusion and specifically about the blood bags issued by the 2^nd opposite party.   The District Forum failed to taking into consideration of all those relevant materials in this regard as against the roll played by the 2^nd opposite party simply observed that the doctor or institutions responsible for the disclosure would be acting  in public interest and in protection of rights and freedom of others which was not alleged to have been followed by the 2^nd opposite party.

 

12.       In those circumstances unless and until the complainant proved that the infection of HIV only because of the blood units supplied to the 1^st opposite party who had given the same for treatment to the complainant during the relevant period by infusing the  same that is before and after  surgery between 28.7.2006 and on 31.7.2006 or after post surgery on 31.7.2006, the 2^nd opposite party cannot be held liable for negligence or deficiency in service and thereby the findings of the District Forum as against the 2^nd opposite party in this regard is erroneous, liable to be set aside and accordingly the complaint against the 2^nd opposite party  liable to be  dismissed.

 

13.         As for as the Negligence against the 1^st opposite party is concerned the District Forum observed in para 36 as follows:-

“So, it is clear from the Text of Dartmough-Hitchcock Medical Center, Hernia Surgery Center and from the contents of the written version filed by the opposite parties the incisional hernia would occur in the place where the scar was found which was  caused from the previous surgery and due to the continues cough.

 

14.           Further the District Forum stated that if the 1^st opposite party has followed the poly polypropylene Mesh method  in prevention of postoperative Hernia Bariatric surgery and  relied  the  text of “Annals of surgery” in which it was stated as follows:-

     “The demand for bariatric surgery is still rowing as at present it is regarded as the most effective way of reducing and maintaining the body weight in the morbidly obese person. The prophylactic use of polypropylene mesh in abdominal surgery as a solution for incisional hernia is gaining polularity. This method can be safely applied in those surgical operations which are encumbered with the high rate of incisional hernia”.

 

15.           While confronting all these points relied upon by the District Forum by the learned counsel for the opposite parties, it is argued that the continuous cough as stated by the District Forum must being chronic one which would last nearly for 2 or 3 weeks and in this case, the complainant had only on the next day of surgery, there was no cough on the date of surgery and the cough was also treated by the Doctor disappeared on of 3^rd day and if further the cough alone could not cause for the incisional hernia, it could cause a burst in abdominal, but will never result incisional hernia which may cause due to various reasons like infection as she had diarrhea after discharge of vaginitis which are mentioned in the case sheet, where the patient was passing water stools and there is no scientific proof that the cough was severe enough to raise the intra abdominal pressure specifically this point has been pleaded by referring to Penn State Milton S. Hershey Medical Center, College of Medicine list out the causes as : Incisional hernias are caused by thinning or stretching of scar tissue that forms after surgery. This weakened scar tissue then creates a weakness in the abdominal wall. Excessive weight gain, physical activity, that places pressure on the abdomen, pregnancy, straining during bowel movements because of constipation, severe vomiting, or chronic and intense coughing causes the scar tissue to thin or stretch. Because the abdominal wall is weak, the hernia occurs during abdominal strain. There was no approved school of thought that in all abdominal surgeries prolene mesh has to be used to prevent incisional hernia. The original literature of the authors who advocate the use of prolene mesh is only for bariatric surgery (weight loss surgery ) where is was advocated for Roux-en-Y Gastric Bypass procedure where the same is enclosed. In all bariartric surgery in order to reduce weight it would cause malnutrition  because the food absorption would be reduced. These procedures using on lay-meshes are only in the stage of research and pre-clinical trials for which enough of literature have been placed on record that having not been disputed by the complainant. Further it is the matter to be decided by the Doctor who is giving treatment to decide the nature of course of treatment when there are more than 2 or 3 procedures are available to choose the right course or method is left with the discretion of the doctors which cannot be questioned unless the procedure followed is defective or wrong one done by inexperienced –unqualified person.

 

16.        In this case, at the time of surgery, as per the evidence of  1^st opposite party in the cross examination stated that  the aspect of intolerance, oral iron, the immediate need for surgery of the specific instant for bladder compression developed incisional hernia as narrated the complainant cannot introduce new theory of incisional hernia  because of the size of the mass of body pushing the bladder that cause frequent pressure to the patient failing which it would be caused the life , the surgery to be done immediately even without correcting an anemia having arisen to do the surgical procedure emergently. Hence the observation of the District Forum regarding the deficiency relating to the surgery of 1^st opposite party are not proved with any other medical expert  evidence except to the contentions of further treatment taken for incisional hernia and continuous treatment at ART treatment center for HIV infection at Vidya hospital, Salem GMKMC Hospital, Salem and further treatment at  CMC hospital, Vellore would also reveal that the subsequent incisional hernia not caused HIV or only because of 1^st  opposite  party is alleged erroneous or wrongful treatment of hysterectormy of the complainant was alone not at all proved by way of acceptable evidence and materials and the  opposite parties relied upon the medical literature, Royal College of England under the topic “General” relating to hernia pointing out, “it is unlikely that the development of a hernia can be attributed to a single strenuous or traumatic event. Hence many litigants are successful in compensation claims, causing mounting financial burdens on employers, the courts, insurance companies and the tax payer. However there is very little scientific evidence to support this assertion. We conclude that we are unable to find any clinical evidence to support the hypothesis that a hernia might develop as the result of one single strenuous of traumatic event.  While we accept that the mechanism might still possibly occur, we believe that, at best, it is extremely uncommon. If a medical expert is preparing a report on such a case in a claim for personal injury, then they have a duty to the court to examine carefully all the contemporaneous medical records. If no clinical evidence exists to support the claim, then they have a duty to the court not to support the plaintiff’s claim”.  The District Forum by completely carried over on the basis of material submitted by the complainant without taking into the materials and other facts relied upon by the opposite parties wrongly came to the conclusion that there was negligence and deficiency in service on their part.

17.           Further the opposite parties also relied upon the following rulings, 1) “Post Graduate Institute of Medical Education and Research Centre, Chandigarh reported in Jaspal Singh & Ors 2006 ACJ 2672”.

2).    1957 I WLR 582 Bolam Vs Frien Hospital Management Committee

3).    AIR 2010 SC 1162 Malay Kumar Ganguly Vs Sukumar Mukherjee and others which are more relevant for this case.

18.           Hence in view of the discussions made about, we are of the view that the complainant has miserably failed to prove the negligence and deficiency in service on the part of the 1^st opposite party in giving treatment for a hysteroctomy which leads subsequent incisional hernia and HIV and thereby the 1^st opposite party also held not liable for the deficiency in service.

19.         In view of the above findings against the 1^st and 2^nd opposite parties for deficiency in service or negligence not proved the order of the District Forum by allowing the complaint against them is liable to be set aside and accordingly, the order of the District Forum, Salem passed in CC. 124/2007 dated 26.7.2011 set aside by allowing the appeal in FA 871/2011 and the complaint against the 1^st and 2^nd opposite parties is dismissed.

FA 138/2012

20.          Complainant is the Appellant in this appeal,  not satisfied with the award by the District Forum directing the opposite parties 1 and 2 to pay a sum of Rs. 3,00,000/- as compensation and Rs.5000/- as cost, against the prayer for direction to pay Rs.16,50,000/- for the injury caused by the opposite parties due to their negligence in the treatment of the complainant and to pay costs.

 

21.         The opposite parties have also preferred an appeal against the order passed by the District Forum before this Commission in FA 871/2011 which is decided along with this appeal by allowing the same setting aside the order of the District Forum and the complaint dismissed against the opposite parties 1 and 2 in it. In view of the same, this appeal filed by the complainant cannot be sustained and thereby liable to be dismissed and accordingly the appeal is dismissed. No order as to costs.

 

F.A.No. 871/2011

         In the result, in FA 871/2011, the appeal filed by the opposite parties 1 and 2, is allowed by setting aside the order of the District Forum, Salem in CC No.124/2007 dated 26.7.2011, and the complaint is dismissed. No order as to costs.

 

FA.138/2012

       FA.138/2012, appeal filed by the complainant, in view of the order passed in FA 871/2011, this appeal is dismissed. No order as to costs.

 

 

P.BAKIYAVATHI                                                                         A.K.ANNAMALAI 

  MEMBER                                                                                 PRESIDING JUDICIAL MEMBER