West Bengal

Paschim Midnapore

CC/12/2011

Sk. Najiruddin - Complainant(s)

Versus

M/s Kalpataru Diagnostic centre & Policlinic - Opp.Party(s)

12 Oct 2012

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

PASCHIM MEDINIPUR.

 

Complaint case No. 12/2011                                              Date of disposal: 12/10/2012                               

BEFORE : THE HON’BLE PRESIDENT :  Mr. K. S. Samajder.

                                                     MEMBER :  xxxxxxxxxxxxxx

                                                     MEMBER :  Mr. Kapot Chattopadhyay.

 

For the Complainant/Petitioner/Plaintiff : Mr. S. Ghosh. Advocate

For the Defendant/O.P.S.                          : Mr. N. S. Mahapatra. Advocate.

         Sk. Najiruddin, son of Sk. Samsujjha, vill-Dalapatipur, P.O.- Kharar, P.S.-Ghatal, Dist-Paschim Medinipur, West Bengal……………………………Complainant.

                                                              Vs.

      M/s Kalpataru Diagnostic centre & Policlinic, Represented by its operator cum proprietor (1)Amit Kumar Ray (2) Tapas Paul & (3) Milan Kumar Pandit, Resident of 7/10, Rabindranagar, Old LIC More, Midnapore Town, P.O.-Midnapore, P.S.-Kotwali, Dist-Paschim Medinipur …………………..Op.

The case of the complainant, in brief, is as follows

On 16/4/2009 the complainant having fallen ill contacted Dr. B.D.Sinha who advised for blood test.  Accordingly the complainant’s blood test was done by Dr. T.K. Pathak and on perusal of the said report Dr. B.D. Sinha advised the complainant for H.BsAg test of blood.  The complainant then went to the OP No.1 where his blood test was performed.  In the report of the H.BsAg test made by the Op No.1, it was shown that H.BsAg was positive.  On perusal of that report Dr. B.D. Sinha advised the complainant to take admission in the Spondan Hospital and accordingly the complainant was admitted in the Spondan Hospital.  On 17/4/2009 was again blood test was done in the Spondan Hospital where the H.BsAg was found to be negative and on 18/4/2009 the complainant was discharged from the Spondan Hospital.  Thereafter, for removal of confusion, the complainant contested his blood at the laboratory of Dr. T.K. Pathak on 19/4/2009 where the test report of H.BsAg was negative.  According to the complainant the report of the Op No.1 is totally wrong, baseless and suffers from deficiency of service and shortcoming.  The complainant contended that his marriage ceremony was fixed on 19/4/2009 and all arrangements were made. The complainant had to incur huge expenses for marriage but due to the

Contd………………P/2

 

- ( 2 ) -

wrong report of the Op No.1 the marriage could not take place as the bride party cancelled the marriage for which the complainant suffered mental shock agony and pain and also huge pecuniary loss.

      Therefore, the complainant claimed Rs.6,00,000/- (Six lakhs) towards compensation and Rs.10, 000/- (ten thousands) towards cost of litigation.

      The Op contested the case by filing a W/O wherein  it has been admitted that blood test for H.BsAg was done  by the Op but the Op denied that there was any medical negligence and suffering of any injury by the complainant.  The Op further contended that the test of blood of the complainant was done by Dr. S.  Roy using a kit namely Viru Check which was manufactured by reputed company and the test was done in a proper manner.  The Op further contended that as per medical science pathological test of laboratory is a screening test, sometimes false positive and sometimes false negative report may come.  The pathological test is a screening test and it is not a conclusive test.  The doctor who performed the test was not negligent and he acted in accordance with the practice accepted to be proper by the doctors. Having skill in that particular field.   Further contention of the Op No.1 was that pathological report can differ from one laboratory to other and without third report it cannot be considered as to which of the earlier report was correct or incorrect.  The Op also contended that the complainant did not suffer for the report of the Op and the complainant was suffering from Hepatitis as would be evident from the prescription was Dr. B.D. Sinha.

      On these grounds the Op prayed for dismissal of the case.

      It is to be considered by us as to whether there was any medical negligence or deficiency in service on the part of the Op and that, whether the complainant was entitled to get the relief as claimed.

Decisions with reasons

      It is an admitted position that the complainant’s H.BsAg test of blood was performed by the Op No.1 in his laboratory on 16/4/2009 and the result of the said test was shown to be positive.  The report given by Op No.1 has been filed in this case.  The complainant contended that his H.BsAg test of blood was again performed at the Spondan Diagnostic Centre on April 2009 when the result was found as negative.  The complainant is said to have been admitted at the Spondon Hospital on 16/4/2009 and discharged therefrom on 18/4/2009 as we find from the contention of the complainant as well as the patients discharged certificate issued by Spondan Hospital.  It is worthwhile to mention here that in the discharge report of Spondan Hospital the diagnosis was made as Viral Hepatitis.  It indicates that the case was of suspected viral Hepatitis.  According to the complainant, after being discharged from the Spondan Hospital, on 19/4/2009 the complainant again tested his blood for H.BsAg by Dr. T.K. Pathak where also

Contd………………P/3

 

- ( 3 ) -

the result was shown as negative.  Therefore, the complainant tried to establish that the report given by the Op No.1 was not proper and the service of Op No.1 was deficient in nature.

      In this case, as many as three witnesses were examined on behalf of the complainant.  The complainant examined himself as PW-1. We find nothing significant in his evidence.  He has corroborated the case as made out petition of complaint regarding the blood test report made by the Op No.1 as well as other laboratories.   The PW-2 was the Manager of Spondan Diagnostics Centre who has stated about the admission of the complainant in this Spondan Hospital on 16/4/2009 and the performing of H.BsAg test on 17/9/2009.  The complainant was discharged from the Spondan Hospital on 18/9/2009 and a note is found in the discharge report as well as from the evidence of the PW-2 that the patient was referred to higher centre for better management.  Dr. T.K.Pathak whom the complainant consulted first and at whose laboratory the blood test for H.BsAg was made on 19/4/2009, has been examined as PW-3.  The Pw-3, a pathologist by profession, stated of performing the test made by him and he has proved his report which has been marked as Exhibit- 1.  It is found from the Exhibit -1. That  the result of the H.BsAg test was found to be negative.  Although the PW-3 during his cross-examination stated that it is unlikely that the result of the test for Australian Antizen may differ in different pathological laboratories but in few cases the result of the test may differ due to sensitivity and specificity of the reagents used.  Therefore, it is clear from the evidence of PW-3 who is a pathologist by profession that there is chance of difference in the result depending upon the reason of sensitivity of specificity of the reagents used.  In this case, we find from the W/O  filed by the Op  that the test of H.BsAg  was done  on 16/4/2009 by a qualified Dr, namely, S. Roy using  kits namely Viru Check which is manufactured by a company of repute.  The blood report dated 17/4/2009 of Spondan Diagnostic Centre shows that the test was done by Enzyme Linked Fluorescent Assay, VIDAS,  France.  The Exhibit -1, the report submitted by PW-3 shows that he used the test kit-ACOM Biotech lot HBS 30807022.  Therefore, it is very much clear that three different examinations were made by using altogether different kits.  We would like to reiterate the evidence of the specialist in pathology, the PW-3, where he stated that in few cases the result of test may differ due to sensitivity Specificity of the reagents used.  So, it is clear that in some cases for using different reagents and due to sensitivity the result of test may vary.  Nowhere, from the record it is found that the complainant has been able to show that there is uniform method of   H.BsAg test and the result should be the same.  Rather, we have found from the evidence of the PW-3 that having different result due to some specific reasons, is not uncommon.

      Therefore, if we consider the facts and circumstances of the case and the evidence and entire materials on record, it would appear to us that the complainant has failed to prove

Contd………………P/4

 

- ( 4 ) -

specifically that there was any negligence on the part of the Op No.1.   Even if we assume for a moment that the report as submitted by the Op No.1 was wrong still then there is a different between negligence or deficiency in service and the wrong report.  Wrong result may come due to various reasons other than the negligent act. So, wrong report and negligence or deficiencies in service are not synonymous.

     Next, it appears from the report dated 16/4/2009 of PW-1 that Dr. S. Roy performed the test.  So, Dr. S. Roy should have been made as party in this case.  In absence of Sri Roy the Op No.1 alone should not be fixed liable for any negligence or deficiency in service although, the question of negligence or deficiency in service does not arise as the complainant has failed to prove it.

      Therefore, we find no merit in the present case and hence it is laible to be dismissed.

                          Hence it is

                                              Ordered

That the case be dismissed on contest but considering the circumstances without cost.  Parties be supplied with free copies of this judgement.     

 

Dic. & Corrected by me.

                                                                    I agree.                        

              

         President                                            Member                                               President

                                                                                                                             District Forum

                                                                                                                       Paschim Medinipur.