(Passed this on 18^th September,  2018)

Shri. S.P. Muley, President –

1.      This is a complaint of medical negligence made against a private hospital and a blood bank ancompensation is demanded from them for alleged negligence.

2.      Facts in short are that on 12/11/2011 the wife of the complainant, Smt. Jaya Bhoyar (hereinafter referred to as the deceased), aged 44 years was brought to the Opposite Party 1, hospital for medical check up regarding her complaints of dullness, general weakness, etc. She was examined by O.P.D. doctor and and on his advise she was admitted as indoor patient for treatment. At the time of admission certain blank forms in English were got signed from the complainant by the OP1 authorities. He signed the forms without understanding the contents. He tried to ask them to explain the contents, but to no avail. Neither he nor the deceased was informed about diagnosis and line of treatment and no consent was taken for undertaking treatment. During treatment he was informed about deterioration in the condition of the deceased and necessity to shift her to Intensive Care Unit (ICU). That time also his signatures were obtained on some blank forms in English without explaining him the contents. That day in the afternoon he was allowed to enter the ICU to see the deceased. There he gave some water to her from sealed bottle. Thereafter while he was seating in the waiting area, one of the staff members of ICU came up to him and said the deceased required blood transfusion and blood was requisitioned by the OP1. He was made to sign on one form in English which was purported to be his consent. After some time blood was brought by the staff of the OP2, the Blood Bank and was delivered to the staff in ICU. He paid Rs. 1,500/- for the same.

3.      It is his case that at the time of visit to the OP1 hospital, he had carried the previous record of medical history of the deceased. He had narrated to OPD doctor her ailments and treatment given to her in the past. The OPD doctor had gone through the medical record of the deceased and at the time of admitting her to ICU the file was taken in custody by the OP1. At about 5.30 to 5.40 p.m. he was informed that blood was being transfused to the deceased and the process would be completed in 4-5 hours. At about 7.30 p.m one nurse of ICU called him inside. There a Junior Doctor and nurse staff told him that the deceased had suffered Congestive Cardiac Failure with Cardiogenic Shock and died as a result of it, while she was given blood transfusion. After some time the OP1 issued death certificate. But did not provide him treatment records, admission card despite requests. He incurred a sum of Rs. 11,366/- on hospitalization, cost of medicines etc. After about a month, he came to realise that the OP1 had requisitioned wrong blood group from the blood bank. The blood group of the deceased was B-RH Positive, whereas the blood requisitioned was of AB-RH Positive. The OP1 hospital was well aware of her blood group as the file of her medical record was with it. Due to sheer blunder of the staff of the OP1 and their negligence in determining her blood group,  blood of wrong group was transfused to her. His attempts to get treatment papers, flow sheets, etc from the OP1 and OP2 did not bear fruits. He therefore sought explanation under Right to Information Act as to why blood of wrong group was given to the deceased despite having knowledge of her blood group. But the OP1 did not supply him requisite information. No information was given to him regarding her diagnosis, course of treatment and its effects in contravention of Rules made by Medical Council of India. Alleging gross negligence and deficiency in service of the OPs due to which he lost his wife, he has claimed compensation of Rs. 15,00,000/- and refund of Rs. 11,366/- from the OP1 and cost of Rs. 30,000/-.

4.      The OP1 has filed written version to the complaint at Ex.10. It is admitted that the  deceased was admitted to the OP1 hospital as an indoor patient. But it is denied he was made to sign on blank English forms without explaining him the contents. Before starting treatment he was explained all the procedure of treatment and on understanding the same he signed on the forms. It is admitted that the deceased was shifted to ICU when her condition deteriorated. As per procedure, patients and their relatives are required to sign certain forms whereby their consent is taken prior to start of advanced treatment. Relatives of patients are not allowed to enter in ICU, but the complainant without permission entered in ICU to meet the deceased and gave some water to her against hospital rules and thus contributed to deterioration of her health. It was after he gave her water, her condition started deteriorating. It is alleged he might have done so deliberately to get rid of ailing wife and escape from further expenses. It is not denied the deceased was given blood transfusion. She was provisionally diagnosed with sever dimorphic anemia with Malaria Hepatitis. After investigation she was found to have severe auto immune haemolytic anemia with hemoglobin only 2.7 gms. Hence her blood sample was sent for grouping and cross matching on 12/11/2011 and was found to be AB-RH Positive at blood bank. As she reported that her blood was B-RH Positive, her blood sample was again sent for grouping and cross matching to OP2. The OP2 also reported that her blood group was AB-RH Positive and therefore blood of AB-RH Positive was requisitioned. It is stated since she had received multiple blood transfusion and suffered from Auto Immune Haemolytic Anemia, it was difficult to interpret her exact blood group and cross matching. Since her hemoglobin was very low, blood transfusion of AB-RH Positive was started around 6.30 am on 13/11/2011. The complainant was told that it may take 4-5 hours. She had a second cardiac arrest around 7 am. The doctors tried to revive her but could not succeed and she died at 7.30 am on 13/11/2011 with Auto Immune Haemolytic Anemia with Hypo Proteinimia (low protein level) with congestive cardiac failure and cardiogenic shock. She had first cardiac arrest before transfusion was started and second after hardly a few ml of blood was transfused. Hence her death was due to her illness only and not due to blood transfusion. Denying non supply of medical papers, it stated all papers were given to the complainant. The OP1 being a private hospital is not under the RTI Act.

5.      Specifically it is stated the deceased was hospitalized on emergency. At the time of admission her general condition was moderate. Around 11.30 pm on 12/11/2011 her condition further deteriorated hence she was shifted to ICU. Her relatives were informed accordingly. Her Blood Pressure was low and she had developed respiratory distress and was put on ventilator. On 13/11/2011 at 6 am her heart stopped suddenly, but she was revived. Due to her disease her body was destroying her own blood for which she had multiple blood transfusion of B-RH Positive group in the past. At the time of admission she had fever. Due to very low hemoglobin blood transfusion was necessary. The laboratory of OP1 reported her blood group as AB-RH Positive. Therefore her blood sample was sent to OP2 and there also her blood group was found to be AB-RH Positive. It is stated due to antibodies, or viral or bacterial infection or multiple transfusion blood group may change. It is also stated in case of mis match blood transfusion at least 1 litre (1000 ML) blood is needed to cause death. In present case she received hardly 35 ML blood for only 1/2 hour, which cannot be a cause of her death. Lastly it is stated there is no expert report and no negligence of the OPs for the death of the deceased. The complaint is filed only to harass the Ops and extract money. Hence it is submitted to dismiss the complaint.

6.      The OP2 despite service of notice failed to appear and contest the matter. Hence the complaint is heard ex-parte against it.

7.      We have heard the counsels for both the parties. Perused documents and judgments relied upon. Following points arise for our determination and we have recorded our findings thereon for the reasons given below.

          POINTS                                                              FINDINGS                                                                            

1. Whether there was apparent negligence

                   on the part of the OPs in transfusing

                   wrong blood to the deceased ?              :  Yes

2. Whether deceased died due to

transfusion of wrong blood group ?                 :  Not proved

3. Whether there was any deficiency in

Service or negligence of the OPs ?       :  Yes

4. Whether the complainant is entitled to

compensation ?                                                 :  Yes

5. Order ?                                             : As per final order.

          REASONS

POINT No.1:-    

8.      It is not a disputed point that the deceased was transfused blood of different blood group. Her blood group was B-RH+ before she was admitted to the hospital of OP1 and this fact is admitted by the OP1 in its written reply. Even her medical record shows that she had B-RH+ blood. It is also not in dispute that in the OP1 hospital the deceased was transfused blood of AB-RH+ group. So the point in dispute is whether such transfusion of different blood group was due to negligence or for any valid reason.

9.      It is necessary to  mention here that only B+ or O+ blood groups are compatible for B+ blood group and so a patient having B+ blood can be given blood of either B+ or O+ blood group and none other. So it is out of question that the deceased, who had B+ blood, could be given AB+ blood. But it is a fact that she was transfused AB+ blood. Soon after AB+blood was transfused, she suffered cardiac arrest. Perusal of her medical papers reveal that prior to her hospitalization in OP1 hospital her blood group was B+ as per the report of Institute of Haematology & Oncology. On the admission notes prepared by the doctor of OP1 it is mentioned that her blood group was B+ and previously she was transfused B+ blood. Thus doctors of OP1 had knowledge of blood group of the deceased before blood transfusion. Before blood transfusion, her blood sample was taken for blood grouping and cross matching. It is stated by the OP1 that the sample was tested at the laboratory of the OP1 and it was found to be AB+. Since her blood group was B+, her blood sample was again sent for grouping to the OP2 and there again it was reported to be AB+. This is surprising to note that the deceased was found to have two entirely different blood groups. The counsel for the OP1 submitted that the deceased had multiple blood transfusion in the past which could be the reason for change in her blood group. Besides, it is also stated, viral and bacterial infection also changes blood group. This is something unheard of. A person´s blood group remains same throughout his / her life span and it never changes. At least there is no scientific and reliable report on this aspect.

10.    The OP1 tried to explain this anomaly in a strange way, which has no scientific base. Reference is tried to be taken from the book of Harrisonś Principles of Internal Medicine, 18th Edition. But it is nowhere said that blood group changes during life time in some persons. Therefore it must be held that the deceased was transfused blood of wrong group for no valid and acceptable reason. It was a sheer blunder on the part of the attending doctors and staff of the OP1. However, we do not think there was negligence on the part of the OP2. Because it is not the case that the blood sample was taken by the staff of the OP2. The sample was taken by the staff of the OP1 and sent to the OP2 for determination of blood group. It is also not the case that the OP2 gave a wrong report on blood sample of some other person. In any case when the doctors of OP1 were aware that the deceased had B+blood, she should not have been given blood of AB+. It is not known whether Coombś test was done at the hospital of OP1 when her blood sample was reported different blood group. In the result we hold the OP1 negligent in transfusing wrong blood to the deceased. The first point is held in the affirmative.

POINTS No. 2 & 3:-

11.    The complainant has alleged the deceased died because of wrong blood transfusion. Before proceeding further, we cite here some judgments relied on by the counsel for the complainant on the point of wrong blood transfusion.

1. Post Graduate Institute of Medical Education & Research , Chandigarh v/s Jaspal Singh, Civil Appeal No. 7950 of 2002 decided on 29/5/2009 (SC)
2. Dr. sunil Thakur v/s Gorachand Goswami, Appeal No. 175 of 2006 decided on 29/1/2013 (NC)
3. Dr. anil Kumar Mittal v/s Smt. Neelam Gupta, Revision Pet. No. 3145 of 2008 decided on 7/7/2015 (NC)
4. Mr. barun Prasad Choudhary v/s Tata Memorial Hospital, C. C. No. 5/147 decided on 27/10/2016 (Mah)

12.    In all the above cases the patients were transfused more than one bottle of wrong group of blood and consequently the result was fatal. In this case expert opinion was obtained. According to the expert opinion if AB blood group is transfused to a person having B blood group, it results into transfusion reaction called as Immediate Haemolytic Transfusion Reaction (IHTR). Fever with or without chill is one of the most common manifestation of such reaction. Other signs and symptoms include anxiety, chest or back pain, dyspepsia, hypotension and hemoglobinuria. IHTR may be life threatening and complications may include Acute Renal failure, shock and intra vascular coagulation. Another question before us is what quantity of wrong blood transfusion is fatal. In this respect medical literature on Clinical Hematology says, fatal immediate hemolytic reaction occurs in approximately 1/600,000 red cell transfusion. The mortality of a IHTR severely increases with amount of blood transfused, with 44% mortality rate in patients receiving more than 1 litre of incompatible blood. Going by this reference it can be said that severe IHTR depends on amount of wrong blood transfusion, more the wrong blood more are the chances of mortality.

13.    Here the OP1 had requisitioned 350 ml of AB+ blood from the OP2. The flow sheets show blood transfusion started at 6.30 AM. Admittedly, the complainant was told that it would take 4-5 hours for completion of transfusion.  At 7 AM the deceased went in to sudden cardiac arrest. Her pulse and BP were down and monitor was showing straight line. There was no heart sound. This condition remained till 7.30 AM when she was finally declared dead. During that half an hour attempts were made to revive her but in vain. Most probably when she went in to sudden cardiac arrest within half an hour from start of transfusion doctors or nurses must have stopped transfusion. That means in that half an hour approximately 30 to 35 ml blood was transfused to her. Since there is no clear evidence in this respect we have to do some guess work. If that being so, very small quantity of blood was transfused to her when she had suffered cardiac arrest.

14.    Considering the Hemolytic transfusion reaction, and its mortality rate depending on the amount of incompatible blood in the body, we do not think that 30 to 35 ml incompatible blood in her body would show such sharp and quick reaction. Generally, when incompatible blood is transfused in substantial quantity, most common immediate adverse reactions are fever, chills, acute respiratory distress and urticaria. Passing of red urine and kidney failure are also associated with wrong transfusion. If flow sheets of the fateful day are perused it would be noticed that the deceased had not shown such signs or symptoms. She suddenly went in to cardiac arrest. It is also to be mentioned that the her general condition on the previous day when she was shifted to ICU was not good and a few hours before transfusion began she had suffered cardiac respiratory arrest. But  she was revived. Thereafter while blood was being transfused, she received second cardiac arrest from which she could not be  brought back to life. In such situation, at the most it can be said that transfusion of incompatible blood might have aggravated her already precarious condition. This case is a perfect example of a Marathi saying, “कावळा बसायला आणि फांदी तुटायला एकच वेळ झाली”. She had severe anemia, weakness and suspected viral Hepatitis and malarial fever. She had yellowish dis coloration of eyes and urine. Her hemoglobin was just 2.7 gm/dl. RBC counts had fallen to 0.70 Millions/cmm, which, in female, should be minimum 4.14 Millions/cmm. She was required to be put on ventilator. This itself is sufficient to say that her condition worsened and therefore she required blood transfusion. Thus, from the available documents and probabilities it cannot be said with certainty that she died only due to transfusion of incompatible blood, albeit it might have contributed to hasten her already bad condition to worst.

15.    But consequences apart, the mere fact that she was transfused incompatible blood, per se, amounts to blunder on the part of the doctors of OP1. It  was negligence for sure. There is nothing in the flow sheets to show whether test for malaria or hepatitis was done. Counsel for the OP1 relying on the judgment in the case of Ins. Malhotra Ms v/s Dr. A. Kriplani AIR 2009 SC (Supp) 2774, submitted no doctor would assure the patient full recovery in every case. He can only give assurance of his having requisite skill in that branch of profession which he is practicing and that he would exercise his skill with reasonable competence. He further submitted the doctors and staff of the OP1 is experienced and skilled and the hospital is a reputed hospital. All care and attempts were taken to save the deceased but unfortunately she did not survive as her condition had already deteriorated. Alleging that the complaint is a veiled attempt to extract money, it should be dismissed. However, the facts suggest that there was prima facie blunder in transfusing wrong blood. In fact, this is not a case where the doctors were not experienced or incompetent or did not possess requisite skill. It is also not the case that no care was taken in the hospital and treatment was against the standard medical protocol. Careless of attending doctors and staff lies in not checking the blood group properly when they new it was different. They should have been more cautious in that respect.

16.    Another allegation of the complainant is that his signatures were obtained on blank forms which were in English and one of the forms probably was consent letter. He does not understand English language and without explaining him anything his signatures were taken. Thus in short, it appears, he was reluctant to give consent but it was obtained by keeping him in dark. It is argued by his counsel that without giving him or to the deceased adequate information regarding diagnosis, treatment and pro and cons of treatment, consent was obtained. Two judgments are referred on this point. In Multi Speciality Medical Centre & Hospital v/s Rukhmani & Othrs, Revision Pet No. 3033 of 2015, decided on 16/3/2016, (NC), it is held that a doctor has to seek and secure consent of the patient before commencing a treatment and the consent should be on the basis of adequate information concerning the nature of the treatment procedure. In Suresh Chandra Mytle v/s United India Insurance Co. Revision Pet. No. 2115 of 2015, decided on 4/7/2016, (NC) it is held that the philosophy behind obtaining an informed consent or real consent is that it is the prerogative of the patient and not of the doctor, to determine where his interest lies and which out of available options he should choose, after evaluating the risks and benefits of all the alternatives available to him.

17.    Perusal of the flow sheets reveal that consent of the complainant was taken when the deceased was required to be intubated. It is in Hindi, signed by the complainant. In that letter what is intubation and how it was to be done and why it was necessary have been explained. At that time the deceased was in ICU and in such situation consent of relatives is generally taken. Patient in ICU is not expected to give consent. The complainant tried to show that the deceased in ICU was well oriented, because, he had enter in ICU for a while and had given some water to the deceased. There is no such supporting material. We do not comprehend in the first place, how he was allowed to enter ICU which is highly hygienic and restricted place and no one except doctor and nurses are allowed inside the ICU. It is stated in the reply of the OP1 that the complainant contributed to the deteriorating health of the deceased by offering her unsterilized water without permission. Even if there was interference by the complainant during treatment, that does not diminish default in duty on the part of the OP1 in not transfusing correct blood. The complainant has not denied this consent letter in Hindi. It was also informed to him that condition of the deceased was very serious and that he would not hold the doctors or staff responsible even if something more serious happened. He opted to take treatment for the deceased in the hospital of OP1. These contents are also in Hindi. Therefore it is difficult to accept his allegation that his consent was obtained on English form without explaining him the treatment, its procedure etc and as such his consent was not real or informed consent.

18.    Next, relying on one judgment in North Gujrat Unit of Association of Self Employment Owners of Pri. Pathology Labs of Gujrat v/s North Gujrat Pathologists Ass. SLP No. 28529 / 2010 decided on 12/12/2017 (SC), it is contended by the counsel for the complainant, the pathology reports of the OP1 laboratory were signed by the Technician and not by a doctor or pathologist. As per the laboratory report blood group of the deceased was reported to be AB+. The allegation appears to be true because on the report, at the place of signature, out of the words ¨Pathologist / Technician¨, word ¨Pathologist¨ is struck out. It means the report was signed by the technician only. This is also negligence of the OP1 for which no satisfactory explanation is tendered.

19.    The counsel for the complainant next contended the death summary was not promptly given to the complainant. This has been denied by the OP1 stating that all the necessary papers were given to him. There is one letter as document No.4 dated 3/12/2011. By this letter the complainant had asked for death summary. It has a seal of the OP1. So it was received by it. He even sought the requisite information under RTI Act on 16/12/2011. The OP1 had received the application but nothing was communicated to him. It is contended by the counsel for the OP1 that the OP1 hospital is non aided private hospital and so not covered under RTI Act. Be that as it may, the point is that till 16/12/2011 the OP appeared to have not received death summary. The deceased died on 13/11/2011. Hon´ble National Commission in Medical Supdt Lok Nayak Jai Prakash Narayan Hospital v/s KM. Santosh, F.A No. 244 of 2008, decided on 14/3/2016 (NC)  held that it is the primary duty of treating doctor to see that all the documents with regard to management are written properly and signed. The patients or their legal heirs can ask for copies of treatment record that have to be provided within 72 hours. Not providing treatment papers or death summary within a day or two constitutes deficiency in service and medical negligence. We find substance in this allegation also, which is established from the documents on record.

20.    As far as the OP2 is concerned, we do not find sufficient material to hold it guilty of negligence. The complainant has claimed compensation, only from the OP1. There is no evidence that the blood sample was taken by the staff of OP2 for grouping and cross matching. On the contrary, sample was given by the staff of OP1. In absence of clear evidence the OP2 cannot be held liable for compensation. In the result, both these points are accordingly.

POINT NO. 4:-

21.    In view of our findings on the above points, the complainant is entitled to get compensation from the OP1 for its medical negligence. To determine the quantum of compensation some factors needs to be taken into consideration. The complainant has claimed Rs. 15,00,000/- compensation, which in the facts and circumstances of the case appears exorbitant. In Malaya Kumar Ganguly v/s Sukumar Mukherjee III (2009) CPJ 17 (SC), Hon´ble Supreme Court has discussed on the principle of determining compensation. It is stated that it is based on principles of restitution which provides that person entitled to damages should as nearly as possible, get sum of money which would put him in same position as he would have been if he had not sustained wrong.

22.    In this case the complainant admittedly suffered loss on the death of his wife which occurred during treatment. But we cannot lose sight of the fact that the deceased was already in precarious condition as her health deteriorated further. She had suffered cardiac arrest in the ICU but was revived. Although it is stated that her general condition was moderate when she visited the OP1, it is also a fact that later her health deteriorated and she had to be shifted in ICU where she was put on ventilator. The complainant was also informed that her health was serious and anything more serious could happen. Considering her health and disease, her chances of leading healthy life were not bright. Therefore taking into consideration these facts we are of the opinion that Rs. 3,00,000/- compensation would be just and reasonable. Besides he is entitled to cost of litigation Rs. 15,000/-. No refund of amount paid for purchasing medicines and peripheral could be allowed. Because she had taken treatment in the hospital and the complainant had given his consent to treat her there. Likewise, no refund of amount paid to the OP2 for blood could be allowed since the OP2 is not found responsible.

POINT No. 5:-

23.    In the result, the complaint is partly allowed with following order.

          ORDER

1. The complaint is partly allowed.

2. The OP1, (N.K.P Salve Institute of Medical Science and Lata Mangeshkar Hospital, through its Dean Shri S.S. Dasgupta) is directed to pay compensation of Rs. 3,00,000/- (Rs. Three Lakh) to the complainant within 30 days from receipt of the copy of judgment, else the amount shall carry 9% p.a. interest till full realisation.

3. The OP1 shall also pay litigation cost Rs. 15,000/- to the complainant.

4. The complaint is dismissed against the OP2.

5. Copy of the judgment shall be given to the parties, free of cost.