Kerala

StateCommission

A/14/603

Jeeva Speciality Laboratory - Complainant(s)

Versus

Sainudheen - Opp.Party(s)

N Madhusoodanan Nair

30 Jun 2016

ORDER

KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION SISUVIHARLANE VAZHUTHACADU THIRUVANANTHAPURAM

 

APPEAL NO.603/2014

JUDGMENT DATED : 30.06.2016

 

(Appeal filed against the order in OP.No.248/05 on the file of CDRF, Thrissur order dated : 09.07.2014)

PRESENT

 

SRI.K.CHANDRADAS NADAR   : JUDICIAL MEMBER

SMT.A.RADHA                         : MEMBER

SRI.V.V.JOSE                          : MEMBER

 

APPELLANTS

 

1.M/s.Jeeva Speciality Laboratory,

M.G.Road, Thrissur,

Rep.by the Managing Partner

 

2. Mr.Balachandran,

Partner,

M/s.Jeeva Speciality Laboratory,

M.G.Road, Thrissur,

 

3. Mr.George John,

Partner,

M/s.Jeeva Speciality Laboratory,

M.G.Road, Thrissur,

 

(By Adv.Sri.B.Vasudevan Nair)

 

Vs

RESPONDENT

Sainudheen,

S/o.Kadavil Veettil Muhammed,

Cherpu Padinjattumur,

Cherpu. Thrissur

 

 

 

JUDGMENT

 

SRI.K.CHANDRADAS NADAR   : JUDICIAL MEMBER

        Appellants are the opposite parties in OP.No.248/2005 in the CDRF, Thrissur. A child was born to the respondent / complainant with ambiguous genitalia. As instructed by the doctors attached to Metro Politian Hospital where the baby was examined in order to confirm the sex of the child, the complainant approached the appellants on 13.05.2013 to carry out Karyotype analysis and paid Rs.1700/- to the appellants. The staff of the opposite parties collected blood of the baby and after conducting the test intimated the complainant that the baby was a female. A certificate issued by Sheela Clinic, Coimbatore was shown to the complainant. It is further alleged in the complaint that the baby had the characteristics of a male child. So the doctors suspected the correctness of the report and advised the complainant to get Karyotype analysis conducted again. Accordingly, the complainant approached the appellants again. They after analysing the blood sample again, showed certificate issued from the Sheela Clinic, Coimbatore giving the same result. But the doctors were not sure about the gender of the child as the child had the physical appearance of a male. If the reports of the appellants were taken into consideration surgery would be necessary to change the baby into a female one. So the doctors decided to have a second opinion. Accordingly, the complainant took the baby to the Mother Hospital, Thrissur. Since the blood tests showed the gender of the baby as female, the doctors advised the complainant to get testicular biopsy done. It revealed that the baby was a male. Complainant spent more than Rs.25,000/- for the purpose. Consequent to testicular biopsy there occurred other disease to the baby and the baby later died. Before the death of the baby the baby was treated at the Christian Medical College, Vellore spending nearly Rs.2,00,000/- Karyotype analysis conducted at the Vellore Medical College revealed that the baby was a male. Only because of the incorrect test result furnished by the appellants, the baby was subjected to complicated further tests and consequently the baby died. This amounts to deficiency in service.

        2.     The appellants / opp.parties contended before the consumer forum that they were not conducting Karyotype analysis in their laboratory. They collect blood samples to do the tests and get analysed through Sheela Clinic, Coimbatore. Hence the appellants are not bound to answer the allegations in the complaint. Sheela Clinic is a necessary party to the proceedings. The complainant has no case that the child died due to any tests done by the opp.parties. They approached Mother Hospital and got testicular biopsy done. The child allegedly developed illness consequent to the testicular biopsy and died. So the child did not die due to any wilful negligence of the opp.parties. They never told the complainant that they would conduct Karyotype analysis. The allegation that tests conducted at other laboratories proved that the child was a male cannot be sustained. There was no deficiency in service on the part of the appellants.

        3.     Before the consumer forum complainant and two witnesses were examined as PWs 1 to 3. One witness was examined on the side of the opp.parties as RW1. Exts. P1 to P26 were marked on the side of the complainant and Ext.R1 was marked on the side of the opp.parties. As per the impugned order the consumer forum held that the opp.parties are liable to pay compensation to the complainant and accordingly allowed the complaint. Opp.parteis were directed to pay compensation of Rs.1,00,000/- and cost of Rs.2000/-. The opp.parties are challenging the correctness of the conclusions of the consumer forum.

        4.     Admittedly, the child of the complainant / respondent was born with ambiguous genitalia. Initially Karyotype analysis was done two times through the appellants. Exts. P7 & P8 are the chromosomal analysis report issued from Sheela Clinic, Coimbatore. Ext. P1 is the receipt issued by the first opp.party collecting Rs.1700/- to conduct Karyotyping of the blood sample of the child. Along with this amount, Rs.5/- is seen collected for syringe. It is not disputed that blood was collected by the opp.parties and sent to the sheela clinic for Karyotyping on both occasions. The analysis results are identical. It was found that the baby was of Karyotype 46, XX, 21.s+. The impression given by the cytogeneticist who conducted the study is : Karyotyping appears normal on G-Banding ( in numerical ) Satellite Formation in the chromosome number 21 was noted. So as per Exts. P7 & P8 the sex of the child was found to be female.

        5.     According to the complainant still doubt remained with the doctors who examined the child regarding the sex of the child as the child had physical appearance of a male. So they decided to take second opinion. It was accordingly the child was admitted in the Mother Hospital, Thrissur.  Ext.P9 is the discharge summary issued from the Mother Hospital, Thrissur and Ext.P10 is the histopathology report furnished by the Mother Hospital, Thrissur after gonadal biopsy. It is noted as a case of ambiguous genitalia. Both Exts.P9 & 10 show that gonadal biopsy right and left both showed normal testicular tissue and bits of tunica. Ovarian tissue was not seen. Ext.P13 series are discharge summaries issued from the Mother Hospital, Thrissur. It is seen that the child was admitted with history of recurrent wheeze on the first occasion severe respiratory distress on the second occasion and with fever and breathlessness on the third occasion. Subsequently, the child was treated at the Christian Medical College, Vellore. Ext.P21 is the medical report issued from the Christian Medical College, Vellore and Ext.P20 is the Karyotype analysis report issued from the cytogenetic laboratory in the Vellore medical college. As per Ext.P20 the chromosome number was 46 and karyotype was XY. So according to this report peripheral blood cultured for 72 hrs and G-Banding showed normal male karyotype.

        6.     The complainant alleges that the appellants erred in karyotyping the gender of the baby based on the results of gonadal biopsy and karyotyping at the Vellore Medical College. But it is pertinent to mention that the child was born with ambiguous genitalia and had the physical appearance of a male. Only karyotyping was done by the appellants. It is true that karyotyping at Medical College, Vellore showed the opposite result. But there is no material to hold that the karyotyping done at Vellore Medical College gave the correct result or that the results given by the appellants were erroneous. PW3 who was the urologist in the Mother Hospital, Thrissur deposed that the child had features of both female and male but had predominantly male characteristics. At Vellore Medical College, the doctors had the occasion to consider both physical appearance on clinical examination as well as the karyotype study where as appellants conducted only karyotype study. There is no material to hold that the appellants have conducted karyotype study of the blood sample of the baby without due diligence.

        7.     Coming to the allegations of negligence on the part of the appellants, the precise allegation is only that erroneous finding given by the appellants necessitated further tests which in turn led to other diseases and the baby died. The allegations show that conduct of testicular biopsy started the diseases. Then certainly Mother Hospital is a necessary party. This is a doubtful claim because the illness of the child was breathlessness etc. This can be seen from Exts.P13 series of discharge summaries. As per Ext.P20 the diagnosis made at the Medical College Vellore was that the child had recurrent pneumonia, suspected cystic fibrosis perineal hypospadisis suspected 5X reductase deficiency and under developed genitalia. Gonadal biopsy under no circumstance would lead to pneumonia which is an infection. It appears that the child had chromosomal defects. So the allegation that testicular biopsy was necessitated due to the deficiency in service on the part of the appellants which in turn led to the child contracting diseases is made without sufficient basis. It is not every error which is actionable for deficiency in service. There is no case for the complainant that sheela clinic through which karyotype study was conducted initially had no necessary equipment or personnel who lacked expertise. There is no evidence on this aspect. As indicated earlier there is absolutely nothing to show that the conclusion of experts at the Vellore Medical College was right. On the available evidence it is difficult to say that the karyotyping done by the appellants was erroneous. So the consumer forum erroneously saddled the appellants with liability. Therefore, the complaint is not sustainable and the appeal is liable to be allowed.

        In the result, the appeal is allowed. The order of CDRF, Thrissur in OP.NO.248/2005 dated 09.07.2014 is set aside. The complaint shall stand dismissed. The parties are directed to bear their respective costs in this appeal.

K.CHANDRADAS NADAR : JUDICIAL MEMBER

 

 

A.RADHA                         : MEMBER

 

 

V.V.JOSE                         : MEMBER

Be/

 

 

 

 

 

 

 

 

KERALA STATE

CONSUMER DISPUTES

REDRESSAL COMMISSION

SISUVIHARLANE

 VAZHUTHACADU

THIRUVANANTHAPURAM

 

APPEAL NO.603/2014

JUDGMENT DATED : 30.06.2016

 

 

                                                                           BE/