District Consumer Disputes Redressal Commission ,Faridabad.
Consumer Complaint No.445/2018.
Date of Institution:.11.10.2018.
Date of Order:28.10.2022.
Sh. Deepak Awana son of late Shri Balbir Awana resident of House No. 54, MeethaPur Village, Badarpur, New Delhi – 110 044.
…….Complainant……..
Versus
1. QRG Central Hospital & Research Centre Limited.
2. Dr. Yoel Pal (9891353041) Sr. consultant-Lap & Gen. Surgeon, QRG Central Hospital &
Research Centre Limited.
3. Dr. Rajiv Kumar (7838866873) Sr. Consultant-Lap & Gen. Surgeon, QRG Central Hospital & Research Centre Limited.
4. Dr. Neetu Mittal, MD, Microbiology, QRG Central Hospital & Research Centre Limited.
5. Medi Assist India TPA Private Limited, QRG Central Hospital & Research Centre Limited,
All working at 69, Sector-20A, Neelam Flyover, AjrondaChowk, Faridabad – 121001.
Also at
Regd. Office:
904, 9th floor, Surya Kiran Building, K.G.Marg, Cannaught Place, New Delhi – 110 001.
6. M/s. Oriental Insurance Company Ltd., 50B/4BP, 2nd floor, Neelam Railway Road, NIT, Faridabad.
7. M/s. New India Assurance Company Ltd., Near S.D.College, G.T.Road,Panipat – 132103, Ph. No. 0180-2639728, 2645721.
8. M/s. United India Assurance Company Ltd., 5R/4, GobindBhavan, NIT, Near B.K.Chowk, Faridabad – 121001, Haryana.
…Opposite parties……
Complaint under section-12 of Consumer Protection Act, 1986
Now amended Section 34 of Consumer protection Act 2019.
BEFORE: AmitArora……………..President
Mukesh Sharma………..Member.
Indira Bhadana…………Member.
PRESENT: Sh. B.L.Gaur counsel for the complainant.
Sh. Atul Khatri, counsel for opposite parties Nos.1 to 4 alongwith Shri Jatinder Singh, counsel for opposite parties Nos.2 to 4.
Opposite party No.5 vide order dated 12.12.2018.
Sh. Neeraj Kumar Gupta, counsel for opposite party No.6.
Sh. D.K.Gosain, counsel for opposite party No.7.
Sh. RakeshDabaas, counsel for opposite party No.8.
ORDER:
The facts in brief of the complaint are that on 25.07.2018 complainant was not feeling well due to pain in anal region and there was also difficulty in passing motions with painful defecations and pus discharge. On 25.07.2018 accordingly, their client reached to opposite party No.1 hospital at Faridabad for his treatment. Complainant explained all the symptoms to opposite parties Nos.2 & 3. Opposite parties Nos.2 & 3 after listening the symptoms, advised to complainant to admit in opposite party No.1. Thereafter, complainant admitted in opposite party No.1 hospital for Fistula. Opposite parties Nos.2 & 3 did different types of tests from opposite party No.4 lab and gave some medicine and diagnosed him. On receiving of reports form opposite party NO.3 i.e. laboratory, opposite party No.1 that was the hospital informed to complainant family that he was suffering from HIV positive and advised for a surgery which cost will be about 2.5 lacs which was refused by the complainant. It was disaster for complainant and his family members. The family members of complainant started scolding the complainant personally and on telephone. They were started ill-treating with the complainant and thus diminished the reputation and respect of the complainant before them. The complainant was a married person and having two children’s, one child namely Yuvraj @ approx. 4 years old and female child approx. 10 years old. False and frivolous report of accused No.3 and after considering this report declared to complainant that he was suffering from AIDS create mental trauma to him and also create mistrust to his wife and such bad situation was created among the family and society that complainant was thinking of doing suicide. Further on the same day i.e. 25.07.2018 when after diagnosis the Lab eport and declaration of opposite parties Nos.2 & 3 that complainant was HIV + and TPA that was opposite party No.5 refuse to pay any hospital bills on the reason that this HIV disease did not cover under TPA Assistance Health Card. It was the great shock for the complainant because while at the time of taking this beneficiary card, assurance given by TPA Health Assistance that all the facilities would be given by the TPA and nothing was paid by the beneficiary of this card and, therefore, after borrowing money from the relatives with interest complainant paid all the bills raises against on the name of fake treatment resulting on manipulated lab reports. It was unbelievable for complainant as how he suffered from HIV. Therefore, accordingly, complainant went to Dr. LalPathlabs, Meethapur on 27.07.2018 and ICTC Centre at Faridabad on 28.08.2018 and for retest and confirming the report. When reports came, it was -ve to HIV. Complainant became surprised and happy seeing the report and got some confidence. These reports revealed the complainant that opposite party No.1 with the help of opposite parties No. 2, 3 & 4 were engaged in only making money by producing wrong/manipulated medical reports and creating fear in the mind of patients and his family members which was unfair trade practices adopted by all the opposite parties.The complainant sent legal notice dated 14.08.2018 to the opposite party No.1 but all in vain. The aforesaid act of opposite parties amounts to deficiency of service and hence the complaint. The complainant has prayed for directions to the opposite parties to:
a) pay the amount of Rs.15,00,000/- the amount of damages.
b) return all the amount of bill of Rs.24780/- paid by the complainant with interest.
c) award the cost of litigation.
2. Opposite party No.1 put in appearance through counsel and filed written statement wherein Opposite party No.1refuted claim of the complainant and submitted that the complainant had filed this complaint with false allegations of negligence to the Hon’ble Forum by claiming exorbitant amounts without any basis, just to waste the valuable time, harass and defame the opposite party No.1. Although it was a fact that the opposite party No.1 had not committed any negligence in this case, while providing the said treatment. As such no cause of action arose against the opposite party No.1 in this case, no negligence or deficiency in services had been made/provided by opposite party No.1 to the patient while providing the said services in question, and hence the complaint was not maintainable. The complaint was bad for non –arraignment and mis-arraignment of parties. Opposite party No.1 was insured with “the Oriental Insurance Company Ltd, through its professional Indemnity Policy No. 272200/48/2018/13168 effective from 21.09.2017 to 20.09.2018. Patient – Deepak Awana was admitted with diagnosis Fistula on 25.07.2018. He underwent routine investigations/check-ups/tests including HIV screening test, which came to be reactive and not positive as stated by patient. This process was done prior to surgery in patients as a protocol in hospitals for the safety of the patient care givers and subsequent patients as a protocol in hospitals for the safety of the patient care givers and subsequent patients for whom instruments and theatre would be utilized. The statement that report was wrong seems to be questionable as opposite party No.1 had competent staff members who perform these tests. HIV test which was performed was just a method of screening and was not to be taken as confirmatory method of testing . There were many limitations of each testing methods which was already written in Kit Insert of Testing Kit and our report format. Therefore, this test should not be interpreted as confirmed report. The patient was duly explained and written consent was obtained for the HIV screening test after due explanation. In case the patient was tested HIV reactive indicates presence of Antiboidies to HIV. Any confirmation of the HIV test was done through confirmatory tests such as western blot/HIV viral load, CD4/CD8 etc. The surgery was in respect of the Fistula only when the patient refused for surgery and was discharges, he was discharged with a follow up advices including physician advise of getting HIV western blot then HIV viral load & CD4/CD & tests done. Opposite party No.1denied rest of the allegations leveled in the complaint and prayed for dismissal of the complaint.
3. Opposite parties Nos.2 to 4 put in appearance through counsel and filed written statement wherein Opposite parties Nos. 2 to 4 refuted claim of the complainant and submitted that the complainant had no cause of action to main or sustain the present complaint against the answering opposite parties. In fact the complainant had turned dishonest and wants to take the refund of Rs.24,780/- the treatment bill paid by the complainant to the opposite party No.1 hospital. As far as the alleged claimed amount of damages to the tune of Rs.15,00,000/- was concerned, was not only baseless but was also beyond the comprehension of the answering opposite parties as how the alleged compensation amount had been calculated by the complaint. Without prejudice to the rights of the answering opposite parties Nos.2 to 4 it was submitted that opposite party No.2 Dr. Dr. Yeol Dawa Paljor was having the Professional Indemnity Doctor’s Policy No. 272400/48/2018/13266 covering the insurance risk from 16.01.2018 to 15.01.2019 and in case the Hon’ble Forum comes to the conclusion that the complainant was entitled for any damages, the same was required to be paid by M/s. New India Assurance Company Ltd., with whom the answering opposite party No.2 was insured under the above mentioned insurance policy. the answering opposite party No.3 Rajiv Kumar was having Professional Indemnity Insurance Policy No. 353900/36/18/0400000001 covering the insurance risk from 18.04.2018 to 17.04.2019 and in case this Hon’ble Forum come to the conclusion that the complainant was entitled for any damages, the same was required to be paid by the New India Assurance Company Limited with whom the answering opposite party No.3 was insured under the policy mentioned above. The answering opposite party No.4 Dr. Neetu Mittal was having Professional Indemnity Doctor’s Insurance Policy No. 221000/27/17/P118619379 covering the insurance risk from 28.03.2018 to 27.03.2019 and in case this Hon’ble Forum come to the conclusion that the complainant was entitled for any damages, the same was required to be paid by the New India Assurance Company Limited with whom the answering opposite party No.4 was insured under the policy mentioned above. As per available record, upon admission of the complainant, various tests were performed including HIV screening tests, which came to be Reactive and not Positive as alleged by the complainant. In fact, the complainant being smart had given a wrong impression to this Hon’ble Court through his pleading that the surgery was advised for HIV mentioning the expenses of 2.5 lakh, whereas the complainant was suffering from the ailment of Fistula. The expenses for the surgery of Fistula was estimated at Rs.35/40 thousand only. The complainant had filed the present complaint against the answering opposite parties as per discharge on request, wherein the words “Positive of “HIV” were appearing but the complainant had not seen the other words “HIV Reactive” The lab test report dated 25.07.2018 of the complainant clearly mentioned Reactive. It was submitted that the words positive of HIV in discharge on request may be at typographical error. Opposite parties Nos. 2 to 4 denied rest of the allegations leveled in the complaint and prayed for dismissal of the complaint.
4. Registered notice sent to opposite party No.5 on 16.10.2018 not received back served or unserved. Case called several times since morning. But none appeared on behalf of opposite party No.5. More than one month had elapses. Therefore, opposite party No.5 was proceeded against ex-parte vide order dated 12.12.2018.
5. Opposite party No.6 put in appearance through counsel and filed written statement wherein Opposite party No.6 refuted claim of the complainant and submitted that the complainant had neither any locus standi nor cause of action to file the present case. Opposite party No.6 issued Professional Indemnity Doctors policy No. 272400/48/2018/13266 valid from 16.01.2018 to 15.01.2019 in the name of opposite party No.2. Opposite party No.6 denied rest of the allegations leveled in the complaint and prayed for dismissal of the complaint.
6. Opposite party No.7 put in appearance through counsel and filed written statement wherein Opposite party No.7 refuted claim of the complainant and submitted that opposite party No.3 obtained Professional Indemnity Doctor Policy No. 35390036180400000001 subject to the terms and conditions as well as limited liability of the said policy and the replying opposite party cannot be held to indemnify opposite party No.3 against the terms and conditions of the said policy as well its limits. Opposite party No.7 denied rest of the allegations leveled in the complaint and prayed for dismissal of the complaint.
7. Opposite party No.8 put in appearance through counsel and filed written statement wherein Opposite party No.8 refuted claim of the complainant and submitted that as per available record, the complainant came to the respondent no.1 hospital on 25.07.2018 for treatment with the complaint in anal region and was feeling difficulty in passing motions with painful defecations and pus discharge, for which the complainant was got admitted and the required respective tests were carried out. As per record, the complainant was found to besuffering from the ailment of Fistula. It was further submitted that the path lab test dated 26.07 2018 of the complainant was found to be reactive. The Note given at the foot of the report dated 26.07.2018, one would found that the Note mentions: This was just a screening test not a confirmatory test. All the reactive results should be supplemented by confirmatory test such as western blot HIV PCR etc. This report was not for medico legal purpose. It was wrong to say that the complainant was advised for the surgery of HIV costing Rs.2.5 lakh. It was being brought on record that no surgery was required for HIV and therefore no question arises for seeking Rs.2.5 lakh as surgery charges from the patient. In fact the complainant was advised for the surgery of Fistula for which the estimated amount for the treatment and surgery was told to be amounting to Rs.35-40 thousand only. As far as the words positive of HIV are concerned, it might be a typographical error as the path test shown the HIV reactive which was clear from the path lab test dated 26.07.2018 of the complainant. It was being brought on record that the answering respondents nowhere mentioned that it was a confirmatory report but it was only a screening test report based upon which the complainant was suggested to get the further confirmatory rests done, but the complainant had not got the confirmatory tests from the respondent no. 1 hospital. It was wrong to say that the family members of the complainant scolded the complainant in person and on telephone and or that the family members of the complainant started ill-treating the complainant and or that the reputation of the complainant was diminished as alleged and claimed. It was further submitted that he had given his consent to get the test done, so he knew what could be the outcome and he was lying while saying that he was shocked. As far as the fact of the complainant a married person and his children are the matter of fact and record. However it was vehemently denied that because of the alleged report, the complainant suffered mental trauma and or that his wife mistrusted the complainant. It was wrong to say that alleged report was a great shock for the complainant. It was further denied that the complainant took alleged reports from Dr. Lal Path Labs and from ICTC Center. It was also wrong to say that the respondent no.1 with the help of the respondent nos.2&3 manipulated the medical reports to cause fear in the mind of the complainant and/or was an unfair trade practice. It was wrong to allege that the complainant was abetted to commit suicide. It was wrong to say that the opposite parties caused cheating or forgery with the complainant and/or that the respondents hatched criminal conspiracy and/or that rendered deficient medical services to the complainant. However, the complainant be put to strict proof of his each & every contention by way of medical expert evidence, as envisaged under the provisions of the Consumer Protection Act, 1986 (Amendment) 2002.Opposite party No.8 denied rest of the allegations leveled in the complaint and prayed for dismissal of the complaint.
8. The parties led evidence in support of their respective versions.
9. We have heard learned counsel for the parties and have gone through the record on the file.
10. In this case the complaint was filed by the complainant against opposite parties – QRG Central Hospital & Others with the prayer toa) pay the amount of Rs.15,00,000/- the amount of damages. b) return all the amount of bill of Rs.24780/- paid by the complainant with interest.c) award the cost of litigation.
To establish his case thecomplainant has led in his evidence affidavit, photocopies of Aadhar card of the complainant, TPA card, Department of laboratory services,, Discharge on request, Final bill of supply summary (cash), invoice cum receipt, department of laboratory services, prescription from QRG Central Hospital, test from LalPathlabs, HIV Test Report Form, legal notice.
On the other hand counsel for the opposite No.1 strongly agitated and opposed. As per the evidence of the opposite party No.1, affidavit of ShriSewak Ram Arora, authorized representative M/s. QRG Central Hospital and research Centre at 69, Sector-20A, Near Neelam flyover, Ajronda, Mathura road, Faridabad, Ex. A – insurance policy – Name of Doctor – Dr. YoelDewaPaljor, Ex. B - Insurance policy – insured name - Dr. Rajiv Kumar, Ex.C – Insurance policy – insured name Dr. Neetu Mittal.
As per the evidence of the opposite parties Nos. 2 to 4 – affidavit of Dr. YoelPaljor, Dr. Rajiv Kumar and dr. Neetu Mittal,Ex.R-A – Discharge on Request, Ex.R-B – Department of Laboratory Services.
As per evidence of opposite party No.6 only affidavit of Ramesh Chand, Divisional Manager, Oriental Insurance Co. Ltd, Faridabad has been filed.
As per evidence of opposite party No.7, affidavit of AnjuNarad – Administrative Officer – Legal Department, New India Assurance Company Limited, Ex.RX – Policy Schedule for Professional Indemnity Insurance (Doctor).
As per evidence of opposite party No. 8 affidavit of Ashok Kumar Pahuja, Administrative Officer, M/s. United India Insurance Co.Ltd., Faridabad., Professional Indemnity Doctors Policy.
11. In this case, the deponent is a married person and having two children's, one child namely Yuvraj @ approx. 4+ years old and female child approx. 10+ years old. False and frivolous report of accused no.4 and after considering this report declared to deponent that he is suffering from AIDS create mental trauma to him and also create mistrust to his wife and such bad situation was created among the family and society that deponent was thinking of commit suicide. On 25.07.2018 deponent was not feeling well due to pain in anal region and there was also difficulty in passing motions with painful defecations and pus discharge. The Complainant admitted in opposite party no.1 hospital for the treatment of Anal pain. Opposite party no.2 and 3 did different type of tests from opposite party no.4 lab and give some medicine. On receiving of reports from opposite party no.4 i.e... laboratory, through hospital staff informed to deponent family that he is suffering from HIV positive and advised for a surgery which cost will be about 2.5 Lacs which was refused by the complainant. Copy of QRG Lab report enclosed with main file in which it is clearly shown that
Test name Result Method
HIV I & II Serum Reactive ECI
Part of diagnosis report: Viral markers showed positive of HIV. In view of HIV reactive, Medicine consultation was done and advice ensured. Patient was advised surgery but patient refused for surgery. During hospital stay patient was managed with IV antibiotics, analgesics, PPI, antiemetic with other supportive measures and now patient was being discharged on request with follow up advice.Oon the same day i.e., 25.07.2018 when after diagnosis the Lab report and declaration of OR no.2 and 3 thatdeponent is HIV+ and TPA that is opposite party no.5 refuse to pay any hospital bills on the reason that this HIV disease did not cover under TPA Assistance Health Card. It was the great shock for the deponent because while at the time of taking this beneficiary card, TPA Health Assistance give assurance that all the facilities will be given by the TPA and nothing is paid by the beneficiary of this card and therefore after borrowing money from the relatives with interest deponent paid all the bills raises against on the name of fake treatment resulting on manipulated lab reports.The complainant is not highly educated person and unable to understand the tenuity of policy that which type of disease not covered under medical policy. It is settled law that every common man or layman is not aware about all basics. It was unbelievable for deponent as how he suffered from HIV? Therefore, complainant went to Dr. LalPathlabs, Meethapur on 27.07.2018 and ICTC Centre at Faridabad on 28.08.2018 and for retest and confirming the report and when reports came, it was shockingly and surprised and also happy that he is -ve to HIV.
On the other hand, counsel for the opposite party No.1 argued that the allegations levelled by the complainant about the fact thatthe Doctors of O.P no. 1 informed the complainant that he is suffering from HIV+ and advised for a surgery which cost about 2.5 lacs are wrong, false & baseless as complainant was admitted with diagnosis with fistula in Ano on 25/07/2018. He underwent routine investigations/check-up/test including HIV screening test which came to be reactive and not positive as alleged by complainant. Further, the test should not be interpreted as confirm report as the same was merely a screening test not a confirmatory test. The complainant was duly explained that his report comes as reactive therefore he should go through confirmatory test such as western blot, HIV viral load, CD4, CD8 etc, as per the medical protocol. Even in the report dated 27/07/2018, the same lines all mentioned that this is a "Screening test not a confirmatory test, all the reactive results should be supplemented by confirmatory test such as western blot etc. Thus, it is completely wrong that that the complainant was declared with HIV+ by the Doctors of O.P No.1 as advised for surgery whereas otherwise there is no surgery of HIV+ in entire medical field. Further, it is proved that OP no. 1 after getting the report of reactive, himself requested for DOR (Discharge on Request) and therefore he was discharged on request with a advice to go the Fistula Surgery. It is evident from the discharge summary 26.07.2018 wherein it was mentioned that "Viral marks showed positive of HIV" The word "Positive" mentioned in discharge is just a clerical error as the same can be suffice from the test report of Serology dated 26/07/2018 wherein the word Reactive is mentioned not Positive. Further, the same is clarified by the treating doctors Opposite Party No. 2 to 4 in their reply that the "words of HIV+ in discharge may be typographical error".
The complainant is alleging that he has suffered pecuniary liability on account of declaration of HIV+ by the doctors as his medi-claim was denied on this reason. Firstly, it is completely wrong that he was declared HIV+ by the O.P No. 2 to 4 rather his screening test came to be reactive and not positive. Further, the reason for denial of mediclaim is that he has discharge within 24 hrs of admission and the same is Discharge on Request by the complaint himself. Further, complainant has not proved this fact on file that his mediclaim was denied due to alleged report of HIV positive.Apart from the same, complainant has not turned a single witness which shows that his image has been turned down in the family or society due to false report of HIV positive.Thus, the complainant has failed to prove that he has suffered any loss & injury on account of HIV report.
As per the medical protocol, pathological test reports always have a chance of 1% false positive and 1% false negative. As Per medical protocol that there must be a chance that pathological test always has a chance of 1% false positive or 1% false negative results due to specificity and sensitivity of the method. All pathological investigation which are performed in the laboratory have their limitations of sensitivity and specificity or individual assay procedure as well as the quality of method used by different laboratory pathology test confirms the final diagnosis, this is only a professional opinion which further needs to be correlated by the clinician. Pathology test only helps in arriving at a recommendation in conjunctions with critical presentations and further investigations. Pathological reports never confirmed the final disease rechecking and recommendation always advisable if report is alarming or unexpected by the treating doctors or clinician and patient himself. The same can be corroborated by the fact that in the report recommended by Dr. Lal path Lab dated 27.07.2018 submitted by the complainant, it is clearly mentioned that Rarely false negativity/positivity may occur and it was also mentioned that Results to be clinically correlated.
The counsel for opposite party No.1 has placed reliance the following citations:
a) the medical literature says that Dr. Murad Ruf & Dr. Oliver Morgan 2008, Dr. Kelly Mackenzie 2017
b) In Madhyamgram Consumer welfare society VIS Kalian Kumar Chhatterjee Law Finder id 56720.
c) In Dr. Santosh Kaur Sodhi Vis Dr. Vijay Mujoo that the report byDr. Vijay Mujoo Law Finder id 558023.
d) In Sushil Kumar Vis Dr. Virendera Mahla& others Law Finder id 485113.
The ratio of the same is applicable to the fact of the present case.
12. The main issue in this complaint is about the HIV+. It is evident from Department of Laboratory Services vide Ex.R-B in which it has been mentioned that: Serology
HIV 1 & 11 Sample: Serum
HIV 1 & 11, Serum : Reactive Immunochromatography
It was also mentioned in the Discharge summary vide Ex.R-1 that he was discharged on the request of the patient. At the time of discharge, the condition of the patient was stable and the report of HIV+. It has also been mentioned in the report that other tests are also compulsory for the final report.
13. After going through the evidence led by the complainant & opposite parties Nos.1 to 4, the commission is of the opinion that the report issued by opposite party No.1 was not the final report .On the report, it was mentioned that there was requirement of another tests also. HIV card test is a screening test which needs to be confirmed. Patient is informed so that instead of ignoring it should go for conformation test. Keeping in view of the above, the commission is of the opinion that no deficiency in services on the part of the opposite parties have been proved. Hence, the complaint is dismissed. Copy of this order be given to the parties concerned free of costs and file be consigned to
record room.
Announced on: 28.10.2022 (Amit Arora)
President
District Consumer Disputes
Redressal Commission, Faridabad.
(Mukesh Sharma)
Member
District Consumer Disputes
Redressal Commission, Faridabad.
(Indira Bhadana)
Member
District Consumer Disputes
