Tamil Nadu

South Chennai

CC/126/2021

Mrs.Kalaiselvi - Complainant(s)

Versus

Sanjeevini Scans, Rep by its Propritor - Opp.Party(s)

M/s. R.Venkatesh

22 May 2023

ORDER

  Date of Complaint Filed:29.03.2021

  Date of Reservation     :28.04.2023

  Date of Order              :22.05.2023

          DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

CHENNAI (SOUTH), CHENNAI-3.

 

PRESENT: TMT. B. JIJAA, M.L.,                                           : PRESIDENT

                    THIRU. T.R. SIVAKUMHAR, B.A., B.L.,           :  MEMBER  I 

                    THIRU. S. NANDAGOPALAN., B.Sc., MBA.,    : MEMBER II

               

CONSUMER COMPLAINT No.126/2021

 MONDAY,THE 22^nd DAY OF MAY 2023

Mrs. Kalaiselvi, 46/F,

W/o. A. Saminathan,

No.AB 301, 40^th Street,

8^th Sector, K.K Nagar,

Chennai – 600 078.                                                      .. Complainant.

 

-Vs-

Sanjeevii Scans,

Rep by its Proprietor,

Mr. Sukumar,

No.5/A, Kalinga Colony,

P.T. Rajan Road, K.K Nagar,

Chennai – 600 078.                                                     .. Opposite Party.

* * * * *

Counsel for the Complainant      : M/s. S.R. Venkatesh, M. Balaji,

                                                          R.Balakumar, S. Jayaprakash

 

Counsel for Opposite Party         : M/s. G. Gunasekaran, 

                                                           A.Prabulachandran

 

On perusal of records and upon hearing the oral arguments of the counsel for Complainant and the counsel for the Opposite Party this Commission delivered the following:

ORDER

Pronounced by Member-II, Thiru. S. Nandagopalan., B.Sc., MBA.,

(i) The Complainant has filed this complaint as against the Opposite Party under section 35 of the Consumer Protection Act, 2019 and prays to pay a sum of Rs.1,00,000/- as medical expenses and to pay a sum of Rs.15,00,000/- as compensation for harassment and suffering from mental agony caused to the Complainant and for health issue along with cost of the complaint.

I.     The averments of Complaint in brief are as follows:-

1. The Complainant submitted that she is a housewife and facing Uterus problem from 2018 and for the same she is on treatment at Surya hospital. During September 2019 the Doctor advised to go for Surgery for that the Complainant was referred to the Opposite Party i.e Sanjeevini Scans for a certain test. As per the doctors advice, immediately the Complainant has to undergo surgery and further advised her to go for several tests including a blood test. The Complainant submitted that she has approached the Opposite Party for blood test and the Opposite Party has advised the Complainant to pay the necessary charges for blood testing. The Complainant has paid all the necessary fees as per the Opposite Party's demand. The Complainant submitted that she underwent the blood test in the Opposite Party lab on 13.09.2019 and the Opposite Party has issued the report on the same day. The essential of the blood test is to ascertain about the Complainant blood group, since the same blood group is required at the time of operation. Further the Complainant submitted that as per the Opposite Party report the blood Group is "A1B+". The Complainant submitted that when she gave her Lab report to the doctors, the doctor told that the blood group is "A1B+" and the Complainant learnt from the doctor that the said blood group is a rare one.

2.     The Complainant's husband and her relatives have taken steps to get the same blood group but everything went in vain. Because of the delay in getting the blood donor for the said blood group the Surgery was postponed and her health condition became worse. Henceforth the Complainant and her husband have approached the doctor and informed the doctor about the inability to arrange the same blood group donor. As per the Doctor advice again the Complainant has undergone a blood test in "Hitech Diagnostic centre" on 23.10.2019. The report revealed that the Complainant blood group is 'A' Positive. The Complainant further submitted that as per the doctor's advice once again the Complainant underwent a blood test in Neuberg Ehrich" on 05.11.2019, to her shock and surprise that the Lab results showed that her blood group is "A+" which confirms the Hitech Diagnostic Centre blood report. Thereafter the Complainant has arranged A+ blood donor and underwent Operation for Uterus Removal on 11.11.2019 at Chitra Maternity & Surgical Centre at Saidapet. Because of the false report given by the Opposite Party. The Complainant further states that her health condition has become worse and suffered a lot of pain because of the delayed operation due to change in blood group report. The Complainant further submitted that because of the Opposite Party's negligence of service the Complainant's entire life has put in much trouble and hardship by giving a wrong blood report to the Complainant for which the operation was not done within the time causing more health issues. Hence the Complaint.

II. Written Version filed by the Opposite Party in brief is as follows:-

3.     The Opposite Party submitted that it is true that on 13.09.2019 the Complainant came to the Opposite Party's Lab to do a blood test and was given a sample of blood to test the Blood group of her blood and a lab report was issued on the same day to the Complainant that the Complainant's blood group is A1B+. The Opposite Party denies the claim of the Complainant that the blood group A1B+ is a rare one among the blood group. But the fact is that the A1B+ blood group is similar to AB(Universal Acceptor) and can receive blood from any other blood group. Further the Opposite Party ascertains that he Complainant fails to submit the expert evidence on the same and the burden of proof lies on the Complainant as per the decision in Upasana Hospital Vs Farook(CPJ May 2007, National C.D.R.C., 235) and the Complainant is put to strict proof of the same. The Opposite Party further submits that within a few days of issuing the Blood Test Report, the Complainant again came back to the opposite part by saying the blood group mentioned in the report was wrong, immediately the Opposite Party asked the Complainant to give the blood samples to conduct the test once again to ascertain the earlier result without any charges but the Complainant refuses to conduct a new test.

4.     The Opposite Party denies that the Complainant's husband and other relatives had searched for A1B+ blood group and the same is a rare blood group which was not available and due to that her surgery got postponed is false and the Complainant repeats these allegations against the Opposite Party because of her poor knowledge about Medical Science and the treatment process associated to it and also she got misguided without proper understanding to substantiate the poor knowledge of Complainant in Medical Science and its treatment. The Opposite Party submits that the Para Nos.31, 32, 51 and 52 of Judgement delivered by Hon'ble Supreme court Chief Justice Mr.Ramesh Chandra Lahoti in Crl.Appeal Nos.144 and 145 of 2004 clarifies that it is "Too complex to easily understand" the medical science and treatment of the human body. extract of para 31 of the above- mentioned judgement is "human body and medical science both are too complex to be easily understood, to hold in favour of existence of negligence, associated with the action or inaction of a medical professional, requires an in-depth understanding of the working of a professional as also the nature of the job and of errors committed by chance, which do not necessarily involve the element of culpability". To confirm his Judicial Opinion in Para 31 of his Judgement in the above-mentioned case, Hon'ble Supreme Court Chief Justice R.C.Lahoti emphasised the same in Para-32 of his Judgement in the above-mentioned case as "human body and its working is nothing less than a highly complex machine, coupled with the complexities of medical science, the scope for misimpressions, misgivings and misplaced allegations against the operator 1.e. the doctor, can not be ruled out, one may have notions of best or ideal practice which are different from the reality of how medical practice is carried on or how in real life the doctor functions. The factors of pressing need and limited resources can not be ruled out from consideration. dealing with a case of medical negligence needs a deeper understanding of the practical side of medicine". From the above Para 31 and 32 of Judicial opinion, it is very clear that the Complainants, who complain about the Medical professionals should have a deep understanding and knowledge of Medical Science and its treatment and in para 51 hon'ble Judge very clearly explains the patients and their relatives who accuse the doctor may not have proper knowledge and understanding about medical treatment and in Para 52 Hon'ble Judge very strongly expressed his opinion as "Many a Complainant prefers recourse to criminal process as a tool for pressurising the medical professional for extracting uncalled for or unjust compensation. Such malicious proceedings have to be guarded against".

5.     The Opposite Party further denies the averment made by the Complainant that she is facing several health issues because the operation got delayed due to the change in blood group. The Opposite Party submits that the complaint is made up of baseless allegations and fallacious thoughts the Complainant is trying to accuse the Opposite Party without having produced any expert opinion in the form of evidence from the experts or laboratory to prove their case as per Sec 35 of the Consumer Protection Act 2019. The instant complaint miserably fails to produce the expert opinion, hence the complaint deserves to be dismissed.

III.   The Complainant has filed his proof affidavit and Written Arguments,  in support of his claim in the complaint and has filed documents which are marked as Ex.A-1 to A-7. The Opposite Party had submitted his proof affidavit and Written Arguments. On the side of Opposite Party documents were marked as Ex.B-1 to Ex.B-3.

IV. Points for Consideration:-

 

1. Whether there is negligence and deficiency in service on the part of the Opposite Party?

2. Whether the Complainant is entitled for reliefs claimed?

3. To what other reliefs the Complainant is entitled to?

POINT NO. 1 :-

6.     On perusal of Complainant averments and the respective documents it is admissible that the Complainant did a blood test with the Opposite Party upon the doctors advice and there is no dispute over the same by the Opposite Party. As per Ex.A-1 the blood test result given by the Opposite Party dated 13.09.2019 reveals that the Complainant blood group is “A1B+”. The Complainant averred that the said blood test examined is to undergo for a uterus removal surgery for which she is getting treated at Surya hospital as seen in Ex.A-2. Henceforth the Doctor advised to go for surgery subsequently referred to the Opposite Party i.e Sanjeevini scans for various blood tests including the blood group test to ascertain as the same blood donor is required at the time of surgery. Moreover, the Complainant contended that she learned from the Doctor that the blood group “A1B+” is a rare one and also claims that relevant efforts were made by the Complainant husband and relatives to arrange the suitable blood group donor but in vain eventually the surgery got postponed due to unavailability of blood donor. Further the Complainant submitted that as per the Doctor advice again she underwent a blood test in “Hitech Diagnostic Centre'' on 23.10.2019 in that report it revealed that the blood group is “A Positive'' as found in Ex.A-3 and to cross verify the same the Complainant underwent one more blood test on 05.11.2019 at “Neuberg Ehrich” as seen in Ex.A-4 surprisingly the lab results shown that the blood group is “A Positive” in contrast to the result given by the Opposite Party i.e “A1B+”. The Complainant further submitted that thereafter arranged “A Positive” blood donors and underwent the operation for Uterus removal on 11.11.2019 at Chitra Maternity & Surgical centre at Saidapet and the relevant enclosures were found in Ex.A-5 & Ex.A-6. Further the Complainant contended that due to the Opposite Party false blood report her surgery got postponed attracting other several health issues by not allowing her to recover even after the surgery causing more pain and mental agony.

7.     On the other hand the Opposite Party was not disputing on the issuance of wrong blood group report of the Complainant  as      "A1B +" , but denies the allegation of the Complainant that the blood group "A1B +" is a rarest one due to which the operation was postponed. Opposite Party further contends that the Complainant is not having a medical science knowledge and the treatment process associated towards the surgery by relying upon a Hon'ble Supreme Court Chief Justice R.C.Lahoti Judgement in Crl.Appeal Nos.144 and 145 of 2004 clarifies that it is "Too Complex To Easily Understand" the medical science and treatment of the human body. Extract of Para 31 of the above- mentioned Judgement is "Human Body And Medical Science Both Are Too Complex To Be Easily Understood, To Hold In Favour Of Existence Of Negligence, Associated With The Action Or Inaction Of A Medical Professional, Requires An In-Depth Understanding Of The Working Of A Professional As Also The Nature Of The Job And Of Errors Committed By Chance, Which Do Not Necessarily Involve The Element Of Culpability".  In Contrast the Complainant claims that the judgement relied by the Opposite Party is not applicable to this present case and also places his point for the expert opinion plea raised by the Opposite Party stating that the two centres namely “ Hitech Diagnostic centre & Neuberg Ehrlich” reports given by them are experts given a right blood group report as “A+” not the “A1B+”.

8.     Moreover the Opposite Party claims that no harm caused to the Complainant on the basis of wrong blood group report is not acceptable. In the given facts and also on merits it is irrelevant to claim whether harm being caused to the Complainant on issuance of wrong report would not be a criteria. It is the failure on the part of the Opposite Party by not taking due care and being conscious of any error on their part while issuing the blood report that could have a tremendous impact on the life of the Complainant. Further to strengthen the case, the Complainant relied upon a judgement of State Consumer Disputes Redressal Commission Uttarakhand Dehradun - Sh. Arvind Kumar vs Dr. Surendra Kumar Kaushik on 5 October 2010 , herein allowing the Opposite Party to compensate the Complainant for the hardship, agony and pain suffered by him for giving a wrong blood group report. In totality with due regard to the well established law in this respect we are of the considered view that the Opposite Party was negligent in conducting the blood group examination of the Complainant which constitutes medical negligence within the ambit of the consumer protection act. Hence directing the Opposite Party to compensate the Complainant by causing mental agony for their negligence. Accordingly, Point No.1 is answered.    

POINTS NO 2 & 3

9.     As discussed and decided in  Point No.1,  that the Opposite Party had committed deficiency in service, the Opposite Party  is liable to pay a sum of Rs.50,000/- as compensation for the negligence, harassment and mental agony caused to the Complainant and a sum of Rs.5,000/- towards cost. Accordingly, Point Nos. 2 and 3 are answered.

In the result, the complaint is allowed in part. The Opposite Party is directed to pay a sum of Rs.50,000/- (Rupees Fifty Thousand Only) as compensation for the negligence, harassment and mental agony caused to the Complainant and a sum of Rs.5,000/- (Rupees Five Thousand Only) towards cost of the litigation to the Complainant within 8 weeks from the date of receipt of this order.

Dictated to Steno-Typist, transcribed and typed by her, corrected and pronounced by us in the Open Commission, on 22^nd of May 2023.

 

 

S. NANDAGOPALAN               T.R. SIVAKUMHAR                    B.JIJAA

      MEMBER II                          MEMBER I                            PRESIDENT

 

List of documents filed on the side of the Complainant:-

Ex.A1	13.09.2019	Copy of report given by Sanjeevini Scan
Ex.A2	08.10.2019	Treatment given by Surya Hospital
Ex.A3	23.10.2019	Copy of report given Hitech Diagnostic
Ex.A4	05.11.2019	Copy of report given by Neubeg Ihrlich
Ex.A5	25.11.2019	Copy of report given by SRL Diagnostic
Ex.A6		Discharge summary
Ex.A7	24.12.2019	Legal Notice

 

List of documents filed on the side of the Opposite Party:-

Ex.B1	11.01.2020	Reply Notice 1
Ex.B2	18.02.2020	Reply Notice 2
Ex.B3		Acknowledgement Cards

 

 

S. NANDAGOPALAN               T.R. SIVAKUMHAR                    B.JIJAA

      MEMBER II                          MEMBER I                            PRESIDENT