Haryana

StateCommission

A/86/2015

DR.ARVIND LAL AND OTHERS - Complainant(s)

Versus

NEETU KHEMKA - Opp.Party(s)

ALOK MITTAL

26 Sep 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                 

First Appeal No  :     86 of 2015

Date of Institution:   22.01.2015

Date of Decision :    26.09.2016

1.     Dr. Arvind Lal, Chief of Lab. Dr. Lal Pathlabs Private Limited ‘Eskay House, 54, Hanuman Road, New Delhi-110001.

2.     Dr. Vandana Lal, Chief of Pathology, Dr. Lal Pathlabs Private Limited ‘Eskay House, 54, Hanuman Road, New Delhi-110001.

3.     Doctor/Incharge, Dr. Lal Pathlabs Private Limited, Shastri Colony, Gali No.4, Opposite R.S.D. School, Dabwali Road, Sirsa.

                                      Appellants-Opposite Parties.

Versus

 

Smt. Neetu Khemka w/o Sh. Pankaj Khemka, Shop No.125, New Mandi, Sirsa.

                                      Respondent-Complainant

 

CORAM:             Hon’ble Mr. Justice Nawab Singh, President.

                             Shri B.M. Bedi, Judicial Member.

                             Shri Diwan Singh Chauhan, Member   

 

Argued by:          Shri Sandeep Suri, Advocate for appellants.

                             Shri Prashant Gupta, Advocate for respondent.     

 

                                                   O R D E R

 

B.M. BEDI, JUDICIAL MEMBER

 

This opposite parties’ appeal is directed against the order dated August 14^th, 2014 passed by District Consumer Disputes Redressal Forum, Sirsa (for short ‘the District Forum’) whereby Consumer Complaint bearing No.146 of 2008 filed by Smt. Neetu Khemka-complainant/respondent, alleging medical negligence and deficiency in service on the part of appellants-opposite parties, was accepted. The operative part of the order is reproduced as under:-

“…….this complaint is hereby allowed, with a direction to the opposite parties to pay a sum of Rs.2,00,000/- (two lakhs) to the complainant, within a period of 15 days from the date of receipt of copy of this order, otherwise with interest @ 10% per annum, from the date of blood test dated 25.8.2007, till payment.”

2.                The complainant-respondent filed complaint under Section 12 of the Consumer Protection Act, 1986, averring that Dr. Arvind Lal and Dr. Vandana Lal-Opposite Parties No.1 and 2, are running Pathology Labs under the name and style of Dr. Lal Path Labs Private Limited-Opposite Party No.3 at Sirsa. On 25^th August, 2007, she (complainant) was suffering from Jaundice (HAV). She visited Dr.Lal Path Labs-Opposite Party No.3 to get her blood tested with respect to hepatitis. Her blood sample was taken by the opposite party No.3 for testing against payment of Rs.3240/- vide receipt dated 25.08.2007. The opposite party No.3 issued result/report of blood test vide report dated 29.08.2007 (Exhibit C-2) whereby it was reported that Hepatitis C was reactive and made the following comments:-

“Hepatitis C virus (HCV) is an envelop RNA virus which accounts for about 95% of Hepatitis Infections in recipients of blood transfusion and 50% sporadic cases of Non A Non B Hepatitis. HCV initially causes as symptomatic Hepatitis which progresses to chronicity and in some cases to Cirrhosis and malignancy. Igm antibodies directed to the major immunodorminant determinants of the viral proteins are detected in patients infect with HCV early in the course of infection.”

3.                After receiving the report Exhibit C-2, the complainant rushed to Dr. Parveen Garg of Garg Diagnostic Centre, Dabwali Road, Sirsa for getting the above said test again on 29.08.2007. After conducting test, Dr. Parveen Garg vide report dated 2.9.2007 (Exhibit C-4) reported “H.C.V. Card Test: Negative”.  Not believing the report of Dr. Parveen Garg, the complainant visited Indraprastha Apollo Hospitals, Delhi where she was examined by Dr. Raman Sardana and Dr. Reetika Dawar. She was admitted in emergency ward and started treatment of the complainant.  Again blood test of the complainant was conducted at Indraprastha Apollo Hospitals, Delhi, vide report dated 04.09.2007 (Exhibit C-6) with remarks as under:-

“Remarks: The elisa test carried out is a screening test. Clinical correlation and correlation with other serological parameters and confirmatory tests are required before arriving at any conclusion. Presence of non specific interfering substances to be kept in mind.

Note:          Reactive: sample O.D. values greater than or equal to cut off OD values.”

4.                Thereafter, the complainant received treatment for illness of jaundice despite the fact that she was not a HCV patient.

5.                Alleging it a case of medical negligence, the complaint got served legal notice dated 14.09.2007 upon the opposite parties which was replied by opposite parties vide reply dated 23.10.2007 (Exhibit RW-1/3).  Hence, the instant complaint.

6.                The opposite parties-appellants contested complaint by filing written version admitting that the complainant was suffering from jaundice in August, 2007 and she was advised to get the HCV tests regarding Hepatitis done before undergoing further treatment. The test report dated 29.08.2007 reported the complainant as ‘Reactive” as the Index value was 0.68 IgM as against the permissible Index value of 0.34 IgM. It was stated that the jaundice is one of the symptoms of Hepatitis, which could be Hepatitis A,B,C or E. It is difficult to say with certainty that the jaundice is Hepatitis A, unless the patient undergoes proper test. This is precisely the reason why her treating doctor advised to undergo HCV test.  The report Exhibit C-2 makes it indubitably clear that the HCV was actually reactive at the time of the test conducted by the opposite parties. The report Exhibit C-2 further corroborated and substantiated by the test conducted by the opposite parties for the complainant’s liver panel screening. The report also makes it clear that the complainant was affected with liver ailment because of considerably higher level of enzymes. The Bilirubin of the complainant was higher than the reference range as prescribed and is self explanatory and leads to only one conclusion, without an iota of doubt in the mind of prudent person that the patient was actually suffering from Liver disorder, and that in such a situation there is every chance of the patient’s Hepatitis C Virus to be found reactive.  It is not the case of the complainant that she was medically fit and was not having any illness. Admittedly, the complainant was suffering from jaundice and was under medication. The complainant in paragraph No.10 of the complaint herself stated that she is still undergoing treatment for jaundice. So, there is no escape from the conclusion that the traces of the disease could not be detected in the subsequent tests, which were admittedly conducted after few days because she was under treatment and taking medicines on the advice of the treating doctor. Thus, denying the allegations of the complainant, it was prayed that the complaint be dismissed.

7.                Counsel for the parties have been heard. File perused.

8.                Undisputedly, the complainant was suffering from jaundice; on being advised by Dr. M.M. Talwar, treating doctor, she approached the opposite parties No.1 and 2, for blood test. It is also not disputed that the complainant approached opposite party No.3 where her blood test was conducted vide report Exhibit C-2 whereby Hepatitis C was reactive. Thereafter, the complainant visited Dr. Parveen Garg of Garg Diagnostic Centre, Dabwali Road, Sirsa on 29.08.2007 for confirmation, where again her blood was tested and as per report dated 2.9.2007 (Exhibit C-4) it was found “H.C.V. Card Test: Negative”.  The complainant thereafter visited Indraprastha Apollo Hospitals, Delhi, where she was admitted in emergency ward on 03.09 2007 and was discharged on 05.09.2007. Blood test of the complainant was conducted at Indraprastha Apollo Hospitals, Delhi, vide report dated 04.09.2007 (Exhibit C-6) with remarks mentioned herein before. Thereafter, the complainant received treatment for illness of jaundice.

9.                Learned counsel for the appellants-opposite parties referred to Discharge Summary (Exhibit C-10) of Indraprastha Apollo Hospitals, Delhi. Under the heading of ‘Diagnosis’ she was mentioned to be “Acute Hepatitis (HAV related) Rheumatoid Arthritis”. Even the report of Indraprastha Apollo Hospitals, Delhi, finds mention at the end that the test must be correlated clinically. The complainant in paragraph No.10 of the complainant herself admitted that she was suffering from jaundice. The literature (Annexure A-7) regarding under the heading “Antibody to Hepatitis C Virus (Anti-HCV) (by EIA)” under sub-heading “Interferences” is relevant and is as under:-

                             “Interferences

                             False Positive

                             xxx

xxx

•  Rheumatoid factor.

Xxx”

 10.             It is not the case of the complainant that the opposite party did not possess the requisite qualifications. The report Exhibit R-1 shows that Dr. Vandana Lal, holds degree of M.B.B.S, M.D. (Path). It is not the case of the complainant that there was intentional negligence.

11.              Under the literatures, which are published after extensive research, finds “Rheumatoid factor” to be one of the factors interfering in the false Positive of antibody to Hepatitis C virus. The complainant being suffering from Rheumatoid Arthritis and HAV (Hepatitis A virus), if the same interfered with the positivity of the Hepatitis C Virus, no negligence could be attributed to the opposite parties. It also cannot be termed as negligent act on the part of the opposite parties/appellants.

12.              Hon’ble National Commission in Revision Petition No.1910 of 2013, R. Muthukrishnan vs. The Manager, Canara Ban, decided on September 3^rd, 2014, held as under:-

“A mere inconvenience does not amount to deficiency in service, entitling compensation under the Act. We are not persuaded to read any malafides in the conduct of the Bank, as alleged by the Petitioner. In our view, the Petitioner has, on facts, failed to establish any willful fault on the part of the Bank. We do not find any illegality or material irregularity in the impugned order, warranting our interference in the Revisional jurisdiction.”

13.              In MARTIN F. D’SOUZA versus MOHD. ISHFAQ, I(2009) CPJ 32 (SC), Hon’ble Supreme Court observed as under:-

“From the principles mentioned herein and decisions relating to medical negligence it is evident that doctors and nursing homes/hospitals need not be unduly worried about the performance of their functions. The law is a watchdog, and not a bloodhound, and as long as doctors do their duty with reasonable care they will not be held liable even if their treatment was unsuccessful.”  

“When a patient dies or suffers some mishap, there is a tendency to blame the doctor for this. Things have gone wrong and, therefore, somebody must be punished for it. However, it is well known that even the best professionals, sometimes have failures. A lawyer cannot win every case in his professional career but surely he cannot be penalized for losing a case provided he appeared in it and made his submission.”

14.              What constitutes medical negligence, based on the touchstone of Bolam Vs. Friern Hospital Management Committee, (1957), 1 WLR, 582 (the Bolam’s test), is well settled through a catena of decisions of the Hon’ble Supreme Court in Jacob Mathew Vs. State of Punjab & Anr. (2005) 6 SCC 1, Indian Medical Association Vs. V.P. Shantha and Ors., (1995) 6 SCC 651 and Kusum Sharma & Ors. Vs. Batra Hospital and Medical Research Centre & Ors. (2010) 3 SCC 480.  

15.              In Hucks v. Cole (1968) 118 New LJ 469, Lord Denning observed that a medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.

16.              Hon’ble Supreme Court in Ravneet Singh Bagga versus KLM Royal Dutch Airlines and another, (2000)1 Supreme Court Cases 66, held as under:-

“The deficiency in service cannot be alleged without attributing fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be performed by a person in pursuance of a contract or otherwise in relation to any service. The burden of proving the deficiency in service is upon the person who alleges it. The complainant has. On facts, been found to have not established any wilful fault, imperfection, shortcoming or inadequacy in the service of the respondent. The deficiency in service has to be distinguished from the tortuous acts of the respondent. In the absence of deficiency in service the aggrieved person may have a remedy under the common law to file a suit for damages but cannot insist for grant of relief under the Act for the alleged acts of commission and omission attributable to the respondent which otherwise do not amount to deficiency in service. In case of bonafide disputes no wilful fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance in the service can be informed. If on facts it is found that the person or authority rendering service had taken all precautions and considered all relevant facts and circumstances in the course of the transaction and that their action or the final decision was in good faith, it cannot be said that there had been any deficiency in service. If the action of the respondent is found to be in good faith, there is no deficiency of service entitling the aggrieved person to claim relief under the Act. The rendering of deficient service has to be considered and decided in each case according to the facts of that case for which no hard and fast rule can be laid down. Inefficiency, lack of due care, absence of bonafide, rashness, haste or omission and the like may be the factors to ascertain the deficiency in rendering the service.”

 

17.              In view of the report of Indraprastha Apollo Hospitals, Delhi and the medical literature, there is nothing on the record to suggest that there was any negligence in giving report by the opposite parties. Therefore, in absence of any cogent and convincing evidence it cannot be said that there was any negligence on the part of the opposite parties-appellants.

18.              Hence, the appeal is allowed, the impugned order is set aside and the complaint is dismissed.

19.              The statutory amount of Rs.25,000/- deposited at the time of filing the appeal be refunded to the appellants against proper receipt and identification in accordance with rules, after the expiry of period of appeal/revision, if any.

 

Announced 26.09.2016

(Diwan Singh Chauhan) Member

(B.M. Bedi) Judicial Member

(Nawab Singh) President

CL