This appeal is directed by the appellant Dishari Health Points and others of Malda against the final order of Ld. DCDRC, Malda, dated 23.11.2021 in CC No 35 of 2018 U/S 12 of CP Act, 1986.
The case in brief is that the respondent Doyajan Bibi, was suffering from fever and weakness. For this reason and for better medical care she was admitted to Dishari Health Point. At the time of admission Dr. Sharma who claimed to be the proprietor of the Dishari Health Point told the complainant and her husband that the nursing home having the good facility and the best Health Care Centre in the West Bengal. The management of Dishari Home told the complainant that the para medical staffs and doctors will attend the patient immediately on call and further stated that the pathological equipment of Dishari Nursing Home is the best in this country and the pathologists are known to entire globe for their experience and expertise.
On the basis of such assurance the complainant was admitted to Dishari Health Point on 26/11/2017. At that time the R.M.O. and other doctors prescribed some investigation and the complainant undertook those tests as desired by R.M.O. and doctors at Dishari Health Point at an hepty amount for the test.
After the test, the Nursing Home Authority called the husband of the complainant and asked him to take away the complainant from the nursing home immediately. On enquiry the management and the doctors of Dishari Health Point told that the patient was suffering from H.I.V. positive disease i.e., AIDS and for the safety reason the complainant required to be shifted from the nursing home. After receiving such news, the husband of the complainant became perplexed and the husband of the complainant enquired about the name of the doctor and the name of the person who conducted the tests but the management and the proprietor of the Dishary Health Point refused to disclose anything. The doctors and other staffs of the Dishari Health Point got signature of Md. Allauddin and the complainant in several blank papers on 26/11/2017 by way of coersion. The discharge summary and the report regarding H.I.V. which was handed over to the husband of the complainant by the proprietor of the Dishari Health Point Centre. The complainant asked the nursing home authority to hand over the bed head ticket but the management staffs threatened to hand over the bead head -tickets. The report was signed by Dr. K. Das that the complainant was suffering from terminal disease like AIDs. The complainant lost her mental balance as she knew the consequence of HIV.
Thereafter, the husband and other relatives of the complainant took the complainant to Carmichael Hospital for tropical disease, Calcutta for treatment. The doctors of Carmichael Hospital of tropical disease prescribed some tests. After H.I.V. tests it was revealed that the complainant was no suffering from AIDS, i.e., HIV positive. The report dt. 27/11/2017 especially mentioned Dayajan Bibi is not a HIV positive patient. The doctors of Carmichael Hospital of tropical disease prescribed some medicines for treatment for fever and other uneasiness. Due to the negligence of Dishari Health Point the complainant lost her mental balance and for this reason she was treated at National Institute of Mental Health and Nuroscience, Bangalore. Due to the negligence, the complainant has claimed Rs. 15,00,000/-(Rupees Fifteen Lakhs Only) for cost of treatment, Rs. 3,00,000/- (Rupees Three Lakhs Only) for harassment and mental agony and prayed for litigation cost.
The petition has been contested by O.P. 1 and 2 Dishari Health Point by filing a written version denying all the material allegations as leveled against the Disher Health Point contending inter alia that the instant case is not maintainable in the present form. There is no cause of action to file the case against the Dishari Health Point.
The definite defense case is that there was no deficiency of service or unfair trade practice. The further case is that the patient got admission on 27/11/2017 at Dishari Health Point as a referred patient. Just before her admission at Dishari Health Point she took admission at Malda Medical College and Hospital, Malda and then Apollo Nursing Home, Malda then MB Nursing Home. Finally, she shifted to Dishari Health Point. She got admission with a history of fever for 10-12 days. Under the consultation of Dr. U.S. Roy. Patient was treated by the doctor carefully and from the treatment sheet of the patient it will be very much clear that what type of diagnosis and treatment referred by doctor. It is very much clear that doctor advised to refer the patient to tropical medicine for further management.
The O.P. No.2 Dr. K. Das is an M.D. in Pathology and prepared his report on 26/11/2017 in respect of patient Dayajan Bibi referred by Dr. R.M.O. of Dishari Health Point and it will be presumed that the doctor found after testing the patient sample with due care and using best skills and ability.
Considering such facts and circumstances the instant case is liable to be dismissed.
In this case O.P. No.3 Chief Medical Officer sent a letter to the Forum that he is not concerned with the treatment and the O.P. No.4 and 5 did not contest the case as such the case was heard ex parte against them.
During trial the complainant was examined as P.W.-1 and cross-examined in the form of questionnaires and during trial the has put and marked the document from Ext.-1/1/18.
On the other hand, no witness was examined on behalf of the O.P. Ld. Forum. After concluding the process of hearing, come to a firm observation that the pathological report and blood test of the patients done by Op No.2 Dr. K. Das (appellant No.2) in very uncared method without applying his best skill and ability which tantamount to gross negligence and for that reason Ld. Dist. Commission has slapped huge financial liability upon Op No.1 & 2 (appellant).
Being aggrieved with this order, this appeal followed on the ground mentioned in Memo of appeal.
The appeal was admitted in due course and notice was sent to the respondents. The principal respondent Doyajay Bibi has defended in the appeal through her Ld. Legal counsel. An order of stay over the execution case was continued till the disposal of the appeal.
Ld. Advocate Mr. Rajdip Ojha has represented the appellant and Ld. Advocate Mr. J. N. Choudhary who also submitted WNA pleaded for respondent.
Decision with reason
After hearing the argument delivered by the Ld. Legal councils of both sides, it is established beyond any dispute that Doyajan Bibi was suffering from various ailments including high fevers for a couple of days and she was admitted to the health center of appellant No. 1 where appellant No.2 as pathologist conducted pathological tests of Doyajan Bibi who in his report suggested that Doyajan Bibi was affected with H.I.V(1 & 2) Antigen Reactive and the appellants advised the patient party to sift her to Kolkata for her H.I.V positive treatment.
There after this dispute cropped up.
Ld. Advocate of the appellants at the time of hearing mentioned that, all the documents, have been marked as Ext. in the case and among the documents the most important one is the HIV report done by Dr. K. Das which has been marked as Ext. 1/1.
First to say that the report of HIV done by Dr. K. Das suffers from no lapses and following the international standard he did the testing. The test report has been wrongly read by the RMO but strange enough to say that the RMO has not been made the party in this case.
The first phase HIV report speaks of being positive but the second and the third report speaks negative and the final result speaks that HIV is negative. The trial Court has mis-read or over looked the report and observed that the Dr. K Das observed the case as HIV positive but K Das never observed HIV positive. In final result Dr. K Das has categorically stated that it was negative. So, the complainant should have no complaint in the matter but unfortunately, the RMO has misdirected the patient by ascribing the case as a case of HIV positive. Is the complainant had any grievance, it could have the grievance against the RMO but the RMO has not been made the party in this case.
After strutting of the serological blood in three phases, in first phases, antigen was found 7.16 which was highly re-active.
But in the second and third phase, the same blood taken only once on 26.11.2012 at 1.04 PM, the antigen was below 1.00 and non-reactive as per parameter.
Dr. Das finally opined that antibody to HIV was detected and does not exclude the infection with HIV 1 and 2 possibilities of exposure. So, the R.M.O of that Health centre had to reply upon the report of Dr. Das who had to force the patient party to take the patient immediately so that such disease of H.I V could not be spread over to the other patients and person attached to the health center.
If Dr. Das, after 2nd and 3rd phase testing, found the antigen non-reactive then after 3rd test, he could have opined as a tie breaker of 3rd test non-reactive and patient had no HIV infection.
But on the country, after tie breaker test, he still opined the possibility of existence of HIV 1 and 2 infections in the body of the patient and suggested another test after 4 weeks.
So, the gross negligence on the report of the appeal No.2 was rightly detected.
Dr. Das (appellant 2) having a degree of pathology, attached to the heath centre of appellant no. 1 who had rely upon the skill and education of appellant No.2 So the appellant No.1 should not be penalized for the fault of appellant No.2. So, the imposition of liability upon appellant No.1 to pay Rs.2,00,000/- as compensation in not appreciable.
Ld. Forum has imposed financial liability upon appellant No.2 Dr. K. Das to pay compensation to the tune of Rs. 3,00,000/- is also found not excessive one but further compensation to the tune of Rs.50,000/- to be paid by appellant No.1 & 2 for mental pain and agony is not justified as due to such harassment Rs. 3,00,000/- is well enough for such compensation.
The litigation cost Rs.25,000/- awarded in favour of the complainant is sufficient and jeuuine.
Hance it is ordered,
That the appeal be and the same is partly allowed on contest without cost.
The final order in respect of asking the appellant No.1 to pay compensation to the tune of Rs. 2,00,000/- stands set aside. The order for awarding compensation for mental agony and pain to the tune of Rs. 50,000/- is also rescinded.
The order of Ld. Dist Commission in respect asking appellant No.2 to pay the complainant to the tune of Rs. 3,00,000/- and Rs. 25,000/- as litigation cost to be paid by both the appellants jointly and severally remained intact.
If the orders are complied by appellant No.1 & 2 within 45 days from this day, no further interest will be carried on failing which the rate of interest fixed by Ld. Dist Commission for non-compliance of the order shall take into force.
Let a copy of this order be supplied to the parties free of cost and the same to be communicated to the Ld. DCRDC, Malda.
