IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA, Dated this the 11th day of August, 2010. Present : Sri. Jacob Stephen (President). Smt. C. Lathika Bhai (Member) N. Premkumar (Member) C.C.No. 22/09 (Filed on 16.02.2009) Between: Santhosh Kumar. K.N. Kolothu Mannil Veedu, Makkamkunnu, Pathanamthitta. (By Adv. K.J. Manu) ..... Complainant And: 1. Ms. Seethal. C. Sreedharan, Supervisor, Dept. of Microbiology, DDRC Wellspring Pathlab Diagnostic, Opp. Central Hospital, Pathanamthitta. 2. Ms. Devalatha. D.M., M.Sc. (Microbiologist), -do. –do. 3. The Director, DDRC Wellspring Pathlab Diagnostic, 3373 B, Menon Complex, Ernakulam, Kochi – 682 020. (By Adv. K.M. Alexander) ..... Opposite parties. O R D E R Smt. C. Lathika Bhai (Member): The complainant has filed this complaint against the opposite parties for getting a relief from the Forum. 2. The facts of the complaint is as follows: On 30.9.08 the complainant has brought his 4 year daughter before the opposite parties diagnostic centre for conducting preliminary test of ‘Hepatitis B’ i.e. HBS Ag CARD test. 1st opposite party is the Supervisor of DDRC Wellspring Pathlab Diagnostic Centre, 2nd opposite party is the microbiologist of the above said diagnostic centre and the 3rd opposite party is the director of the Diagnostic Centre. After conducting the test the opposite parties issued the test result as ‘weak positive’. Then as per the direction of 1st and 2nd opposite party as the confirmatory test of Hepatitis B, the HBS Ag (Elisa) test was conducted to the complainant’s daughter. The test result was positive. Subsequently, the complainant taken his daughter to Lakeshore Hospital at Kochi on 2.10.08. At Lakeshore Hospital they conducted the HBS Ag (Elisa) test again on 4.10.08. The test result at Lakeshore Hospital was “non-reactive”. For confirming it HBS (Elisa) and HBS Ag CARD test was again done at Lakeshore Hospital. It was also confirmed that the complainant’s daughter had no Hepatitis B disease. On 2.12.08 the Hepatitis test of the complainant’s daughter was again done at Thiruvananthapuram State Public Health and Clinical Laboratory. The above test also confirmed that the complainant’s daughter has no Hepatitis B disease. As Hepatitis B is a non-curable disease and the treatment of this disease is not discovered so far, the wrong diagnosis made by the opposite parties to the complainant’s daughter is a deficiency in service and negligence from the part of opposite parties, which caused mental agony, financial loss and other inconveniences to the complainant. So the complainant sent a registered notice to the opposite party demanding compensation for the difficulties sustained to him and the medical expenses and other expenses incurred to him due to the wrong diagnosis made by them. 3. Due to the laches and negligence from the part of opposite parties, the complainant had sustained severe mental pain, financial loss and other difficulties. For that the opposite parties are liable to compensate the complainant. Hence the complainant filed this complaint. 4. The opposite parties have filed a common version stating the following contentions: The complaint is not maintainable either in law or on facts. The test result given by the opposite parties on 30.9.08 is admitted by the opposite parties. The tests done at Lakeshore Hospital, Kochi and State Public Health and Clinical Laboratory its result is not known to this opposite parties. This opposite parties has admitted the truth that Hepatitis B is not completely curable and that no effective treatment for the same is yet discovered. The complainant’s daughter was undergoing treatment for the Hepatitis B and she was taking regular routine tests consequent to medication to check whether the virus is getting reduced or is kept under control. The complainant’s daughter Sreeparvathy was not having Hepatitis B is denied by the opposite parties. The lawyer’s notice issued by the complainant is received by this opposite parties and reply was sent to the complainant stating the actual facts. The complainant is not entitled to any compensation from the opposite parties. The complainant is only on an experimental basis to tarnish the image and good standing of the opposite parties. There is no negligence from the part of opposite parties in issuing test result. Hence the opposite parties are prayed for the dismissal of the complaint with exemplary cost to them. 5. On the basis of the pleadings of the parties, the following points were raised for consideration: (1) Whether the complaint is maintainable before this Forum? (2) Whether the relief sought for in the complaint are allowable? (3) Relief and Cost? 6. The evidence in this case is consists of the proof affidavit and 6 documents produced from the side of the complainant. On the basis of the proof affidavit complainant is examined as PW1 and Ext.A1 to A6 series marked. For the opposite parties, 3rd opposite party’s authorized representative and 3 witnesses adduced oral evidence as DW1 to DW4 and Ext.B1 to B15 marked. After closure of the evidence, both sides heard. 7. The complainant’s case is that the complainant’s four-year-old child named Sreeparvathy brought before the opposite parties for Hepatitis B test. The result given by the opposite parties was weak positive. To confirm it HBS Ag ELISA was done which also found to be positive. The complainant took his child to Lakeshore Hospital at Kochi where the test result shows negative. The blood test result from Public Health Laboratory also the test result is negative. The complainant alleged that the opposite parties have issued wrong test result negligently, which caused much inconveniences, mental agony and financial loss to him. For that the opposite parties are liable to compensate him. Hence he filed this complaint for getting the relief as sought for in the complaint. 8. In order to prove the complainant’s case, the complainant has adduced oral evidence as PW1 and Ext.A1 to A6 series marked. Ext.A1 series is the two bills and two results dated 30.9.08 issued by the DDRC Well Spring Path Lab diagnostics. Ext.A2 series is the two bills and test results issued from Lakeshore Hospital. Ext.A3 series is the bill dated 1.12.08 issued by the State Public Health and Clinical Laboratory, Thiruvananthapuram and the test result dated 2.12.08. Ext.A4 series is the copies of lawyers notice issued by the complainant to the opposite parties dated 22.10.08. Ext.A5 series is the postal receipts of Ext.A4 series letters. Ext.A6 series is the acknowledgment cards for the acceptance of Ext.A4 letter by the opposite parties. The opposite parties counsel has cross-examined PW1. 9. The opposite parties contended that the complainant’s child Sreeparvathy was undergoing treatment for the Hepatitis B and she was taking regular routine tests consequent to medication. The opposite parties have not issued any false result or done any medical negligence. The complainant is not entitled to any compensation from the opposite parties. 10. In order to prove the contentions of opposite parties, the 3rd opposite party’s authorized representative adduced oral evidence as DW1 and Ext.B1 to B11 were marked. Ext.B1 is the authorisation in favour of DW1 executed by the 3rd opposite party. Ext.B2 is the bill dated 30.9.08 issued by the opposite parties for the HBS Ag (Elisa) test done by the complainant’s daughter. Ext.B3 is the bill issued for the HBS Ag CARD test done by the opposite parties to the complainant’s daughter. Ext.B4 is the test result dated 1.10.08 as per the Ext.B2 bill. Ext.B5 is the test result dated 30.9.08 as per Ext.B3 bill. Ext.B6 is the test result of the tests conducted on 27.8.08. Ext.B7 is the test result dated 18.9.08. Ext.B8 is the test result dated 21.9.08 issued by the opposite party. Ext.B9 is the copy of reply notice sent by the opposite party to the Ext.A4 notice. Ext.B10 is the postal receipt of Ext.B8 notice and Ext.B11 is the acknowledgment card of Ext.B8 notice. Complainant’s counsel has cross-examined DW1. 11. Three witnesses for the opposite parties has been examined as DWs.2 to 4 and Ext.B12 to B15 were marked through them. Ext.B12 is the treatment records from Lakeshore Hospital, Kochi for the treatment of the complainant’s daughter. It is marked through DW2. Ext.B13 is the copy of Page No.1457 to 1459 of the Clinical Chemistry Journal 2006 marked through DW4. Ext.B14 and B15 are the relevant pages of two other journals produced by the opposite party marked through DW4. Complainant’s counsel cross-examined DW2 and DW4. 12. On going through the evidences in this case, Ext.A1 series shows that the complainant’s 4 years daughter Sreeparvathy’s blood test for Hepatitis B, HBS Ag CARD was done at the opposite party’s Diagnostic Centre on 30.9.08. The test result of HBS Ag CARD shows as “weak positive”. Thereafter, confirmatory test HBS Ag ELISA was done by the opposite parties on the same day and issued the test result as “positive”. After seeing the test results from opposite party’s laboratory the complainant taken his daughter to Lakeshore Hospital and on 2.10.08 the same tests were conducted at Lakeshore Hospital. The test results from Lakeshore Hospital i.e., Ext.A2 series shows that HBS Ag and HBS ELISA are negative. Again the blood was examined on 2.12.08 at Public Health Laboratory, Thiruvananthapuram there also the test result, Ext.A3, shows negative. According to the complainant, the opposite parties have conducted the blood tests negligently and wrong results were given to the complainant, which caused mental agony, sufferings and financial losses to the complainant. 13. The opposite parties have contended that there is no negligence from the part of them for the Hepatitis B virus test done by them to the complainant’s daughter. According to them sample with low viral load would definitely give positive or negative result on various occasions. Test for Hepatitis B need not remain same when it is done at different occasions. They have referred medical journals Ext.B13 to B15 to corroborate their contentions. At the time of cross-examination DW4 deposed that “Htc kit D]tbmKn¨v Htc lab#194; re-test \S¯nbmepw reading#194; variation hcmw. ]e lab Ifnepw test \S¯m³ D]tbmKn¡p¶Xv ]e company IfpsS InIBWv”. 14. It is pertinent to note that two different blood test results from different laboratories Positive and Negative for Hepatitis BV test done to the complainant’s daughter within two days. A person who goes to a diagnostic centre for a particular test, he does not expect a wrong test report. The contention of the opposite party that the variations will be wide when the test is conducted in different labs by using kits manufactured by different companies cannot be accepted. These variations can be admitted only on the nature of the disease. Harrisons Principles of Internal Medicines Page 1823 – Acute VIRAL HEPATITIS, serologic and virologic markers:- “ After a person is infected with HBV the first virologic marker detectable in serum is HBS Ag circulating HBS Ag precedes elevations of serum amino transferase activity and clinical symptoms and remains detectable during the entire icteric or symptomatic phase of acute hepatitis B and beyond. In typical cases HBS Ag becomes detectable 1 to 2 months after the onset of jaundice and rarely persists beyond six months. After HBS Ag disappears, antibody to HBS Ag (Anti-HBS) become detectable in serum and remains detectable indefinitely thereafter”. From the above referring we can see that if onece Hepatatis B is infected a person Antibody to HBS Ag (Anti-HBS) can be detected in serum and it remains. The very fact of this case is Hepatitis B test HBS Ag (Card), HBS (Elisa) conducted by the opposite parties as ‘Positive’ was contradicted by the report of Lakeshore hospital as ‘negative’ within two days. Re-tests were also confirmed the second report. Hence there is a clear deficiency and negligence can found from the part of opposite parties. 15. The opposite parties have not established their contention that the different kits manufactured by the different companies will vary the results. They have not mentioned the kit, which they used for detecting the HBV of the complainant’s daughters blood. Slight variations can be admitted by using different types of kits for diagnosis. But in this case, the two test results are positive and negative. If the treatment for Hepatitis B had taken to the complainant’s daughter on the basis of the diagnosis made by the opposite parties the implications and complications sustained to the child is to be considered. The wrong diagnosis made by the opposite parties would definitely lead mental agony and distress to the complainant and his family. In the circumstances, we discard the referring in the medical journals Ext.B13 to B15 and contentions raised by the opposite parties. 16. From the above discussions, we find a clear deficiency in service and negligence from the part of opposite parties by giving wrong test results to the complainant’s daughters HBV test. The wrong test results issued by the opposite parties caused mental agony, sufferings, financial loss and other inconveniences to the complainant. For that the opposite parties are liable to compensate the same. In the circumstances, the complainant’s prayer can be allowed with modifications. 17. In the result, the complaint is allowed, thereby the complainant is allowed to realise an amount of ` 25,000/- (Rupees Twenty Five Thousand only) as compensation from the opposite parties along with a cost of ` 1,000/- (Rupees One Thousand only). The opposite parties are directed to pay the allowed amount within one month from the date of receipt of this order, failing which an interest at the rate of 9% will be followed to the above said amount till the payment of whole amount from today. The opposite parties are jointly and severally liable to pay the amount. Declared in the Open Forum on this the 11th day of August, 2010. (Sd/-) C. Lathika Bhai, (Member) Sri. Jacob Stephen (President) : (Sd/-) Sri. N. Premkumar (Member) : (Sd/-) Appendix: Witness examined on the side of the complainant: PW1 : Santhoshkumar. K.N. Exhibits marked on the side of the complainant: A1 series : Two bills and two results dated 30.9.08 issued by the DDRC Well Spring Path Lab diagnostics (4 Nos.) A2 series : Two bills and test results issued from Lakeshore Hospital (4 Nos.) A3 series : Bill dated 1.12.08 issued by the State Public Health and Clinical Laboratory, Thiruvananthapuram and the test result dated 2.12.08 (2 Nos.) A4 series : Photocopies of lawyers notice dated 22.10.08 sent by the complainant to the opposite parties (3 Nos.) A5 series : Postal receipts of Ext.A4 series (3 Nos.) A6 series : Acknowledgment cards of Ext.A4 series. Witness examined on the side of the opposite parties: DW1 : Mathew. T. Abraham DW2 : Thomas Thachil DW3 : Dr. K.A. Sukumara Pillai DW4 : Dr. Leslie Jose SelvarajExhibits marked on the side of the opposite parties: B1 : Authorisation letter dated 30.1.10 executed by the 3rd opposite party. B2 : Bill dated 30.9.08 for ` 250 issued by the opposite parties. B3 : Bill dated 30.9.08 for ` 175 issued by the opposite parties. B4 : Test result dated 1.10.08 as per the Ext.B2 bill. B5 : Test result dated 30.9.08 as per Ext.B3 bill. B6 : Test result of the tests conducted on 27.8.08. B7 : Test result dated 18.9.08 issued by the opposite party B8 : Test result dated 21.9.08 issued by the opposite party. B9 : Copy of reply notice sent by the opposite party to the Ext.A4 notice. B10 : Postal receipt of Ext.B8 notice. B11 : Acknowledgment card of Ext.B8 notice. B12 : Photocopy of the treatment records from Lakeshore Hospital, Kochi. B13 : Photocopy of Page No.1457 to 1459 of the Clinical Chemistry Journal 2006. B14 and B15 : Photocopies of relevant pages of two other journals produced by the opposite party. (By Order) Senior Superintendent Copy to:- (1) Santhosh Kumar. K.N. Kolothu Mannil Veedu, Makkamkunnu, Pathanamthitta. (2) Ms. Seethal. C. Sreedharan, Supervisor, Dept. of Microbiology, DDRC Wellspring Pathlab Diagnostic, Opp. Central Hospital, Pathanamthitta. (3) Ms. Devalatha. D.M., M.Sc. (Microbiologist), -do. –do. (4) The Director, DDRC Wellspring Pathlab Diagnostic, 3373 B, Menon Complex, Ernakulam, Kochi – 682 020. (5) The Stock File.
| | HONORABLE LathikaBhai, Member | HONORABLE Jacob Stephen, PRESIDENT | HONORABLE N.PremKumar, Member | | 
