The instant case was instated on the basis of a petition of complaint filed by one Mrs. Doyajan Bibi W/O. Mr. Alauddin, R/o. Vill Jhajhar, P.O. Nayapara, Dist. Malda u/s. 12 of the Consumer Protection Act, 1986 and the said petition was registered before this Consumer Forum now commission as Consumer Case No. 35/2018.
The fact of the case as revealed from the petition of complaint as well as from the evidence is that the complainant is a house wife and is a resident of village Jhajha under P.S. & Dist. Malda.
The complainant 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 art of 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 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 quartion. 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 if 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 that 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 then Apollo Nursing Home, Malda then MB Nursing Home. Finally, she shifted Dishari Health Point. She got admission with a history of fever since 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 of 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.
Now the point for consideration: Whether the complainant is entitled to get any relief or not ?
::DECISION WITH REASONS::
There is no dispute that the complainant Dayajan Bibi was admitted to Malda Dishari Health Point and it is also not disputed that some medical tests were done from Dishari Health Point as per direction of the Medical Officer to Dishari Hospital.
It is a well settled principle in the medical science that diagnostic test is the pillar for the medical treatment. If the diagnostic tests became defective or not reliable the whole treatment will be very dangerous and it may lead the cause of death to a patient.
For the instant case it is found that on the basis of the prescription of R.M.O., Dishari Nursing Home medical tests were done where it is found that the complainant Dayajan Bibi was diagnosed as HIV (1 & 2) Antigen Reactive and accordingly, the nursing home immediately released her from the nursing home as the complainant was treated as an indoor patient.
Definitely, on the basis of such diagnostic test as HIV Positive the complainant and her husband became perplexed and they went to Carmichael Hospital for tropical disease at Kolkata where she was admitted from 27/11/2017 to 01/12/2017.
From the report of Department of Health & Family Welfare, West Bengal State Aids Prevention Control it is found that she was not suffering from HIV positive and the patient was discharged after giving the necessary directions. Definitely, it indicates that the patient /complainant was not suffering from H.I.V positive.
In this case in the W/V it has been stated by the Dishari Health Point that the patient was admitted to the Dishari Nursing Home after being treated from other nursing home and she was suffering from fever from 10 (ten) to 12(twelve) days and the doctor after diagnosis referred the patient to School of Tropical Medicine for further management and the further case of the O.P. is that O.P. No.2 Dr. K. Das is an M.D. in Pathology and he prepared the report dt. 26/11/2017 and the test was done with regard to the sample of the patient in question with due care and using best of his skills and ability.
In this case no evidence was adduced by the O.P. Dishari Nursing Home. Now it has become the tendency not to adduce any evidence and if the appeal is filed they will submit before the appellate Forum that an opportunity should be given to adduce evidence. But this tendency should be checked.
Moreover, on perusal of the record it is found that since 18/03/2021 several times were given to the O.P. to adduce evidence but they did not avail the said opportunity. If the opportunity is given in the later stage to the other side to adduce evidence the purpose of the Consumer Protection Act will be frustrated as because a consumer case is to be disposed as early as possible after giving an opportunity but the opportunity was given but the O.P. did not avail the same for their own latches, it cannot said that no opportunity was given.
In this case the complainant was examined and cross-examined in the form of questionnaires. After filing the questionnaires of the O.P. the complainant filed the reply to the questionnaires. On filing of the questionnaires of the O.P. it is found that the complainant will file the documents for the treatment of the complainant at National Institute of Mental Health & Neuro Sciences at Bengaluru.
On perusal of the record it is found that all record of treatment of Bengaluru as well as Carmichael Hospital at Kolkata and NIMHANS, Bengaluru
Now the main point has to be considered whether there was any negligence on the part of the Dishari Health Point or not?
On perusal of the diagnosis report it is found that the final diagnosis was done as HIV 1 & 2 Antigen Reactive. But the report of Carmichael Hospital shows that specimen is negative for HIV ante bodies. Can it be said that the medical tests were done by Dr. K. Das who is an M.D. with due care and used best care of his skills and ability if the report of Dr. K. Das was done with due care and using best of his skill then it must be same with the report of the Carmichael Hospital. So definitely, the test of the sample of the patient was not done with due care and using best of his skill and ability by Dr. K. Das is an M.D. in Pathology. He should be care at the time of submitting such type of report when such report may cause danger to a life of a patient. So definitely, it is a gross negligence and latches on the part of Dr. K.Das.
In a case of Deo Kumar Singh Vs. C.B.P. Sinda in 1(2008) C.P.J. 2005 N.C. wherein the Hon’ble National Commission held that there was a crystal clear that here was a total failure on the part of the doctor who conducted the tests.
In that case it was found that the woman was pregnant for 2(two) months and blood tests were done where it is found that the blood group was RH+ A whereas on the second time of examination of blood group by another laboratories it was found that RH-. That tests were done on the same day. In this case the National Commission held that there was a total failure on the part of the O.P. in exercising the adequate care in analyzing the blood.
For the instant case we also found that second time blood test report was found from a Government Institution that HIV-. So definitely, it is a latches on the part of O.P. i.e. Dishari Health Point and Dr. K. Das as such they are liable to pay the compensation.
C.F. paid is correct.
Hence, ordered
that the case be and the same is allowed on contest against the O.P. Nos. 1 and 2 i.e. Dishari Health Point and Dr. K. Das respectively with cost and the case is dismissed against the O.P. Nos. 3,4 and 5 as no case is made out against O.P. Nos. 3,4 and 5.
O.P. Nos. 1 & 2 i.e. Dishari Health Point and Dr. K. Das are held liable jointly and severally.
The Dishari Health Point will pay Rs.2,00,000/-(Rupees Two Lakhs Only) as compensation and Dr. K. Das will pay Rs. 3,00,000/- (Rupees Three Lakhs Only) as compensation. Besides that compensation the complainant is also entitled to get Rs. 50,000/-(Rupees Fifty Thousand Only) each from the O.P. Nos. 1 and 2 for mental pain and agony and also get Rs. 25,000/- (Rupees Twenty Five Thousand Only) as litigation cost.
The total amount comes to Rupees. Two Lakhs + Rupees Three Lakhs + Fifty Thousand + Fifty Thousand+ Twenty Five Thousand = Six Lakhs Twenty Five Thousand Only. The total amount is to be paid within 45 (Forty Five) days from the date of order failing which it will carry interest @ 5 % p.a. over the awarded amount as a simple interest from the date of filing of this case and the complainant will be at liberty to put the decree in execution in the case of failure to pay the amount within the stipulated time as mentioned above.
Let a copy of the order be given to the parties free of cost on proper application.
