This case has been registered u/s 12 of the CP Act, 1986 under complaint case no. CC/290/2018 at DCDRC, Barasat by one Sri Tapan Karmakar against the Suraksha Diagonistics, Baguiati, (OP 1), Dr. Lal Path Lab, Lake Town (OP 2) and Dr. Subrata Bishnu, Lake Town (OP 3).

The gist of the case as averred by the complainant in a capsulated form is that the complainant’s child aged 1-1/2 years fell ill on 29.12.2016 and was consulted with Dr. Subrata Bishnu,MD (Pediatrics), DNB (Pediatrics) as per prescription dated 29.12.2016. After some complications arose on 04.01.2017, the patient was again taken for necessary medical checkup. The doctor advised certain medical tests (Annexure V) on 27.12.2017 for review who advised for further medicines and laboratory tests same day on 27.12.2017. The complainant approached the OP 1 being attracted through their display of advertisements claiming to be the largest and best diagnostics center in Eastern India with top rank across the state of West Bengal, Bihar and Delhi NCR. Accordingly the complainant got performed requisite laboratory test on 03.01.2018 (Anx VII & VIII) as per prescription by Dr. Subrata Bishnu at the diagnostic center of OP 1. Both the test reports were produced before the doctor on 03.01.2018 who was unhappy on those test results as per the medical condition of the patient. Accordingly the doctor informed petitioner about some further parameters of the diagnostic tests viz. Hb, Electrophoresis, Sr.Feritinin, Reticulocyte count, RBC, Perripheral smear. These pathological tests are normally indicated for cancer or leukemia patients which led to sheer mental agony of the complainant and his family members. On 12.01.2018 the doctor checked up the patient clinically and got satisfied when the pathological test reports were got done by the complainant through another diagnostics lab namely Dr. Lal Path Lab (Annx. X, XI, XII) which did match with the physical condition of the patient by clinical correlation. Accordingly the doctor became satisfied and declared the baby patient to be fit and fine.

The complainant also averred that aforesaid tests as advised by the doctor did not specify any particular diagnostic lab for getting the same conducted. Due to aforesaid contradiction amongst the test reports between the pathology lab of the OP 1 with the report and opinion of the doctor OP 3, it is alleged having discrepancy about critical kind of major ailments like cancer or leukemia. The test reports produced by OP 1 (Annx VII and VIII) would have been endangered the child’s life who is incapable to express her sheer discomfort properly, ultimately led to the mental agony of the whole family of the complainant. Had the second opinion/test report of the second lab of OP 2 not been there on record, the situation could have worsened due to improper test result of the lab of OP 1 which could have endangered the life of the patient leading to wrong treatment and further complications and misjudgment by the doctors along with misleading course of treatment. The doctor OP 3 relied upon the pathological test reports of the diagnostics lab of OP 2 as per annexure X, XI, XII and the physical condition of the patient improved. Further due to elapse of time, as the patient is okay and further no complications has arisen, therefore it could be safely concluded that the diagnosis of doctor OP 3 could be established being the patient completely fit and fine as per her real clinical condition. Due to such acts of omission and commission by the diagnostic and pathology lab of OP 1, complainant is suffering from deficiency in services for unfair trade practices, spurious goods and services by means of false representation about such services that was advertised claiming to be of a particular standard of quality which ultimately produced such results that are causing reasons to endanger life of the patients and for such nonperformance acts and mental agony, the petitioner claimed for refund of the cost of the laboratory test for Rs. 2690/- along with cost of medicine and doctor consultation for Rs. 7500/- and compensation of  Rs. 15,000/- for mental agony and Rs. 5180/- as litigation cost.

The OP2 submitted on oath that no specific relief has been prayed against them as there is no cause of action on OP2 and hence no prayer for any action or relief lies against the OP2 whatsoever. The complainant in his reply on affidavit to the questionnaire also stated that OP2 is made a party in this case as a matter of record only.

The OP3 denied all allegations and stated on oath that the factum of complaint is imaginary and not supported by evidence of any medical expert in the field of specialization in this particular matter. He also cited the reportable judgement of the Supreme court 2009(1) CPJ 32 (SC) where it has been specifically laid down that before admitting complaint, the complaint ought to have been referred for expert opinion. No cause of action has also arose. As per his testimony, on 29.12.2016 the complainant consulted for the child patient and treatment was given to her vide prescription dated 29.12.2016 and 04.01.2017 and on 05.11.2017. Due to further persisting problems the patient was treated on 27/28.12.2017 with advice for some pathological tests like Hb, HPLS Elecrtophoresis, Sr Feritinin, Reticulocyte Count & RBC monorphology & Peripherl Blood Smear which were produced by the complainant vide report dated 12.01.2018 and consulted with the doctor and found to be satisfactory.

We have gone through the records and evidences and exhibits for the case in hand. The case came on transfer from Barasat Commission to this Commission at the stage of filing questionnaire by the OPs. The OP 2 and OP 3 filed W/V. Though OP 1 received the notice of the court on 07.08.2018 but refrained from turning up before the Commission to file W/V and hence this case is running ex parte against OP 1 from 21.02.2019. After transfer of the case to Rajarhat Commission it is observed that the OP 2 and OP 3 along with the complainant participated in the adjudication process regularly but the OP 1 did not appear even during the stage of argument. The arguments were heard in full along with the documents and records duly perused read with the BNA from the petitioner who filed some reportable judgments of the Apex Court in support of his argument. W/V was also filed by OP 2 along with BNA.

As per factum of the case, complainant was getting treatment for her baby child with the doctor for previous 1 year or so as per prescription dated 29.12.2016 (Annx II)  and was found ‘clinically stable’ by the treating doctor who advised blood tests for Hb, TC , CRP and Chest X-ray for suffering from common cough and cold. On 04.01.2017 the patient was found ‘clinically ok’ by same doctor with his regular type of advice for vaccination and hygiene maintenance. On 17.07.2017, the child was found ‘clinically ok’ but for some chest infection, blood test was advised for parameters like Hb, TCD, Platelet & CRP. Again on 05.11.2017, 12.11.2017 and 27.12.2017 due to common cough & cold and fever, the patient was advised for Asthalin group of bronchodilators & analgesic syrup. This time also blood test for Hb and TSH was advised. The complainant got blood samples tested at the laboratory of OP1when blood sample of the patient was taken and against invoice generated and paid by him to the OP1 and OP2 As per prescription dated 28.12.2017, alongwith manuscript note of doctor dated 12.01.2018 on the body of it, the Hb% on 03.01.2018 was found as 7.2 (from OP1 lab).Thereafter the Hb% on 12.01.2018 was found 12.4 (from OP2) lab. The TSH from OP1 lab dated 03.01.2018 was found 4.55 (reference interval 0.7 to 6.4) which is within limits. No TSH was done as per test report & cash memo , from OP2 lab or any other lab. So TSH could not be compared. From these reports it is being evident that the TSH value of the patient is falling within the allowable reference range of TSH. After going through the said reports it is also evident there is an average variation between the value of Haemoglobin percentage within a gap of 9 days. It is nowhere opined in the series of opinions of the treating doctor as per prescriptions exhibited by the complainant that further blood tests were prescribed due to such variation. There is nothing on record to show that there was even an iota of  threat for cancer or leukaemia. Neither in the various affidavits and question/reply session or written version, the doctor vetted such claim of the complainant in any form whatsoever except the fact that all the pathology test or for that matter any other diagnostic tests were advised as per diagnosis and prognosis of the regime of treatment.

The Opposite Party No.1 was proceeded against ex-parte. Hence the case was adjudicated as per available documents and records. After giving our thoughtful consideration, to the rival contentions, advanced by the Counsels and the evidence on record and aforesaid doctor prescriptions and pathology test reports, we are of the considered opinion that the Hb value in test report of the OP1 compared to that of OP2 showed the result as slightly varying but not highly exaggerated. No other lab test was conducted. Once the comparison is made between the test reports issued by few more labs and the test reports of other laboratories, referred to above, in relation to the identical test, it could have been said to be comparable. The TSH result washowever found within reference range. Hence it can’t be construed to be a case of a high deviation in results. Though the complainant might have undergo an anxious stage being parent of a child but the charges against OP1 constituted with deficiency in rendering proper service, could not be established beyond doubt. No other medical literature or lab report of any other organisation was produced on record by the complainant to show that there is any infirmity.

Any biological parameter that is measured in a population needs a defined physiological or ‘normal’ range. But every test is affected by pre-analytical variables like technique and timing of blood collection, posture of patient and the transport and storage of specimens. Then there are variations in the analytic technique which impact on the test result. Problem is caused by inherent factors of age, sex, body build, occupation, genetic background, diet, altitude of residence etc., which affect test values. All these variables have to be taken into account for clinical co-relation. For any test, the range between the reference limits is called the reference interval and ideally each laboratory should establish its own. For example, Haemoglobin test result is gender dependent. Each lab needs to define its reference interval as the reagents / kits / instruments etc. vary from lab to lab.

The cited Judgement of Apex Court dated 10.05.1996 [1996 AIR 2111; 1996 SCC(4) 332 relied upon by Complainant is actually a case of medical negligence against a quack doctor without being qualified in that system of Allopathic treatment and the patient died. The Appeal was disposed off in favour of the respondent /complainants (in lower court) with compensation. But it is observed that the cited case has no applicability in the case in hand.                                                                                                        

Thus considering the facts and circumstances of the present complaint petition alongwith documentary evidences, it is to sum up that the deficiency in service on the part of the OPs could not be adequately established as the submission from the side of the complainant could not be established beyond doubt, being devoid of merit.

In view of the above discussion, it is held that the complaint petition fails on the correct appreciation of evidence and law points. In the result, the complaint petition stands not allowed on contest.

No Order as to cost.

Copies of this order, be sent to the parties, free of cost as per CPR.

Dictated and corrected by

[HON'BLE MR. Partha Kumar Basu]
MEMBER