BEFORE THE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD.
F.A.No.1699/2007 AGAINST C.D.No.704/2003 DISTRICT FORUM-I, HYDERABAD.
Between:
Kaveri Blood Bank, rep. by its Proprietor
Dr.G.R.Linga Murthy, S/o.
Aged about 50 years, Occ: Medical Practitioner
R/o.Bharani Complex, Minister Road
Secunderabad.-500 003. Appellant/
Opp.party no.2
And
1. Smt.Asiya Sultana, W/o.Shaik Mohammed
Aged about 32 years, Muslim
R/o.H.No.3-6-824/1, Narayanguda,
Hyderabad. Respondent/
Complainant
2. Smt.Jayasri Kirloskar (died)
W/o.not known aged about 50 years,
Kirloskar Hospital, R/o.5-9-47/3,
Basheerbagh, Hyderabad-29. Respondent/
Opp.party No.1
3. M/s.Kirloskar Hospital,
5-9-47/4, Basheerbagh
Hyderabad-500 063. Respondent/
Opp.party No.3
Counsel for the Appellant: M/s.Deepak Bhattacharjee
Counsel for the Respondents:M/s.V.Gourisankara Rao-R1
F.A.No.1777/2007 AGAINST C.D.No.704/2003 DISTRICT FORUM-I, HYDERABAD.
Between:
1. M/s.Kirloskar Hospital,
5-9-47/4, Basheerbagh
Hyderabad-500 063.
(Impleaded as per the orders of Hon’ble A.P.
State Commission made in RP 138/2005,
Dt.21-4-2006)
2. Dr.Jayasri Kirloskar (died)
W/o.not known aged about 50 years,
Kirloskar Hospital, R/o.5-9-47/3,
Basheerbagh, Hyderabad-29. Appellants/
Opp.parties 1 & 3
And
1. Smt.Asiya Sultana, W/o.Shaik Mohammed
Aged about 32 years, Muslim
R/o.H.No.3-6-824/1, Narayanguda,
Hyderabad. Respondent/
Complainant
2. Kaveri Blood Bank, rep. by its Proprietor
Dr.G.R.Linga Murthy, S/o.not known,
Hindu, Aged about 50 years, Occ: Medical Practitioner
R/o.Bharani Complex, Minister Road
Secunderabad.-500 003. Respondent/
Opp.party no.2
Counsel for the Appellant: M/s.D.Devendra Rao
Counsel for the Respondents:M/s.V.Gourisankara Rao-R1
QUORUM: THE HON’BLE SRI JUSTICE D.APPA RAO, PRESIDENT
SMT.M.SHREESHA, MEMBER
. AND
SRI R.LAKSHMINARASIMHA RAO, MEMBER.
THURSDAY, THE FIRST DAY OF JULY
TWO THOUSAND TEN
(Typed to the dictation of Smt.M.Shreesha, Hon’ble Member.)
***
Aggrieved by the order in C.C.No.704/2003 on the file of District Forum-I, Hyderabad, opposite party No.2 preferred F.A.No.1699/2007 and opposite parties 1 and 3 preferred F.A.No.1777/2007. Since both the appeals arise out of the same C.D. they are being disposed of by a common order:
The brief facts as set out in the complaint are that the complainant went to opposite party No.1 on 12-6-2002 for gynaec problem who after examination advised operation to avert cancerous effect. Opposite party No.1 also advised the patient to have blood transfusion before operation since her hemoglobin level was low and referred her to opposite party No.2, blood bank for testing her blood group and after conducting tests, the patient was informed that he blood group is ‘B’ positive and by charging Rs.800/-, the blood was sold under a receipt. The blood supplied by opposite party No.2 was transfused to her by opposite party No.1 and she was advised to come for check up on 15-6-2002. On 13-6-2002, the complainant had suffocation and discomfort and she was taken to opposite party No.1 for examination, and she stated she requires blood. On 14-6-2002 the patient’s uneasiness continued and she again contacted opposite party No.1, who expressed that it was due to weakness and advised one more bottle of blood to be transfused and accordingly she contacted opposite party No.2 who gave one more bottle of blood which was transfused. On 16-6-2002 and thereafter her condition aggravated and the complainant rushed to opposite party No.1 hospital who advised to have one more bottle of blood to be transfused and asked her to come on the next day. On 17-6-2002 the complainant was admitted in opposite party no.1 hospital and the complainant’s husband contacted opposite party no.2 for one more bottle of blood and the same was transfused. On 18-6-2002, opposite party No.1 conducted the operation and removed the uterus of the complainant and after operation one more bottle was required to be transfused and as opposite party No.2 was not having the stock of “B” positive blood, the complainant’s husband was informed to go to Koti branch and get the same and telephoned to Koti branch to give “B” positive blood. Thereupon the complainant’s husband went to Cauveri blood bank, Koti branch with blood sample of complainant given by opposite party No.1 where the Manager informed that the sample is not relating to the complainant’s blood group since the blood sample shows ‘A’ positive group and directed the complainant to verify again from opposite party No.1. Accordingly opposite party No.1 conducted blood test and it revealed that the complainant’s blood group was ‘A’ positive and not satisfied with the said result and as per the directions of opposite party no.1, the complainant got checked her blood with Vijaya Diagnostics Center, Hyderabad and there also it was found that the complainant blood group was ‘A’ positive. It is the case of the complainant that opposite party No.1 injected wrong blood group to her without conducting proper blood test and on 18-6-2002 at about 10.00 a.m., the complainant became very serious and the blood was oozing through urinal track and she also suffered chest pain and difficulty in breathing. On examining the complainant’s condition, opposite party No.1 expressed her inability to bring the complainant to normal condition and cannot assure her life, and put her in 24 hours observation. Some time later her condition became normal and again on 20-6-2002 the complainant’s blood was rechecked and it was found ‘A’ positive and then it was confirmed that because of mismatching of blood, the complainant’s condition became serious and on insistence of the complainant’s husband, the complainant was referred to CDR hospital and was discharged from opposite party No.1 hospital on payment of Rs.16,000/-. Dr.Ravi Kumar, Hematologist conducted primary check on 26-6-2002 and consulted other experts and diagnosed that the complication is permanent and not curable due to mismatched blood transfusion, which was due to negligence of opposite parties. Dr.Ravi Kumar advised the complainant to avoid life saving drugs such as Aspirin, Oxyphenbutazine etc and the complainant was under the advise of Dr.Ravi Kumar. The complainant was prescribed ‘Venpfer’ injection which costs Rs.1175/- with other combination which comes to Rs.2,500/- to one injection and in total six injections were used. The complainant also spent a sum of Rs.90,000/- towards medicines and other expenses for treatment. A legal notice dated 24-10-2002 was got issued to the opposite parties claiming compensation of Rs.5 lakhs for which a reply was sent without any proper explanation. Subsequently on 24-10-2002 the complainant submitted that she developed swelling and pin on low backache for which she spent another sum of Rs.7,151/- and the reports showed that the kidneys were affected which was due to mis-match of blood. The complainant submitted that she spent Rs.15,000/- towards transportation and other expenses. Hence the complaint for a direction to the opposite parties to pay Rs.5,26,689/- together with costs.
Opposite party No.1 filed counter and admitted that in January, 2002 the complainant came to her with a complaint of profuse bleeding during periods and was advised to undergo surgery i.e. Hysterectomy and since the patient was anemic, she was advised blood transfusion. The complainant went to Cauvery blood bank and her blood was tested to be ‘B’ positive and came with one bottle of ‘B’ positive blood which was transfused, there was no reaction and the complainant was discharged in the evening. She was readmitted on 17-6-2002 and Hysterectomy was performed on 18-6-2002 at 11.00 am and there was no problem for the surgery whatsoever and intra-operatively she was given one unit of cross matched ‘B’ positive blood which was brought from Cauvery blood bank and there was no reaction during surgery. The general condition and B.P. were normal. After surgery, the anesthetist advised to give one more unit of blood and when the complainant’s attendants were informed to bring blood and as Cauveri blood bank at Minister Road did not have ‘B’ positive blood they were referred to Koti branch. Fresh sample of patient blood was sent at 4 pm to Cauvery blood bank and they telephoned to opposite party informing that the blood group was ‘A’ positive and therefore the complainant’s blood was again tested at opposite party hospital and at Vijaya Diagnostic Center and they reported as ‘A’ positive. Opposite party No.1 submitted that all through the complainant’s urine output was monitored after surgery by keeping indwelling catheter and collecting urine in uro-sac and opposite party No.1 spoke Dr.V.N.Waghrey, Senior physician and also Dr.Girish Narayan for their opinion and on the advise of nephrologists, the general condition of the complainant remained stable. She had an uneventful postoperative recovery and sutures were removed and wound healed and her general condition was good but she was anemic and after recuperating, she was discharged. Opposite party no.1 referred the complainant to Dr.Ravi Kumar, Hematologist who found iron deficiency and advised IV iron transfusion. Opposite party No.1 submitted that as per the prescription she was given Venofer 1 amp in 500 CC of Glucose and she was discharged on the same day and submitted that she was anemic but her condition was normal and submitted that there is no deficiency of service on her behalf.
Opposite party no.2 filed counter and stated indication of two different blood group is not uncommon and in certain cases, the blood may show two different groups. As per the practice it is the group which matches with cross matching and confirms on settling is taken into consideration. The blood may not project the exact group in the event presence of cooled anti bodies, high frequency cooled anti bodies, patient’s problems etc. The problems may result due to increase in abnormal proteins, which may interfere with the testing and in the instant case, the blood group after cross matching was confirmed as ‘B’ positive. Even after transfusion of 3 bottles of blood, the patient remained stable and normal which clearly established that the transfusion of ‘B’ positive blood was not a mis-match. Had there been any mismatch of group, the result would have been fatal and the test conducted for supply of 4th unit of blood at their Koti branch indicated that grouping is more near to ‘A’ positive and the fresh sample collected for the 4th unit by slide method as well as the reverse grouping mentioned ‘A’ group but varied. However, on cross matching it was indicated ‘A’ positive group. It is submitted that the said type of problems are only transitory in nature and fresh samples were therefore suggested for each unit to avoid problems. But the attendants who had come to collect the blood did not choose to go for regrouping after taking the 2nd and 3rd bottle of blood taking into consideration the cost factor on the basis of first grouping test. They denied that the complainant suffered any disorder due to transfusion of ‘B’ positive blood and incurred huge amount for the complications on account of mis matching of blood and prayed for dismissal of the complaint.
Based on the evidence adduced i.e. Exs.A1 to A26 and the pleadings put forward, the District Forum allowed the complaint directing opposite parties 2 and 3 to pay compensation of Rs.5,00,000/- with joint and several liability together with costs of Rs.5,000/-.
Aggrieved by the said order, opposite party No.2 preferred F.A.No.1699/2007 and opposite parties 1 and 3 preferred F.A.No.1777/2007.
It is the case of the complainant that she approached opposite party No.1 on 12-6-2002 and was advised Hysterectomy operation to remove the uterus or it may lead to cancer. As her hemoglobin level was low and not suitable for operation, it was decided that blood transfusion was necessary. It is the complainant’s case that she and her husband went to opposite party no.2 went to opposite party No.2 blood bank which gave one bottle of “B” positive blood charging an amount of Rs.800/- vide bill No.9454. Opposite party No.1 directed the complainant to come again on 15-6-2002 but the complainant felt uneasy on 13-6-2002 itself and she was brought to the hospital and on 14-6-2002 morning they went again to opposite party No.1 and she advised blood transfusion on the next day and another bottle of “b” positive blood was taken from opposite party No.2 for Rs.800/- and the same was transfused to the complainant on 15-6-2002. On 16-6-2002 the complainant suffered severe abdominal pain and was rushed to the hospital and she was blood transfusion was again on the next day i.e. 17-6-2002. On 18-6-2002, the operation was conducted and opposite party No.1 gave the sample for cross matching and the complainant’s husband purchased one more bottle from opposite party No.2. The complainant’s husband submits that there was no ‘B’ positive stock with opposite party No.2 and the same was procured from their Koti branch. Opposite party No.1 informed the complainant that the blood test shows ‘A’ positive group and opposite party No.1 once again conducted the blood test where the blood test showed ‘A’ positive. The complainant once again got it tested at Vijaya Diagnostic and this also confirmed ‘A’ positive group. It is the case of the complainant that her condition became serious on 18-6-2002 and she was referred to CDR hospital by opposite party No.1 and that the Hematologists there stated that her condition was not curable because of mismatched blood transfusion. On 5-7-2002 the complainant was discharged from opposite party No.1 on payment of Rs.16,000/-and the complainant was using an injection which costs Rs.1175/- with another combination costing Rs.2,500/- for one injection and she has used 6 such injections. She even got issued a legal notice on 24-10-2002 giving in detail all the medical expenditure and mental agony suffered by the complainant.
It is the case of appellant/opposite parties 1 and 3 that there is no negligence on their behalf and that the blood was brought by the complainant’s attendants after cross matching under certificate and as such no liability can be fastened on to the deceased doctor. The blood was cross matched by opposite party no.2 blood bank and in the absence of any expert opinion, the hospital or the doctor cannot be made liable. We observe from the record that the doctor Smt.Jayasree Kirloskar who conducted the surgery successfully is no more and we are of the considered opinion, no tortuous liability can be fastened upon the deceased doctor. Taking into consideration that the hospital has transfused the blood brought in by the complainant’s attendants from the blood bank i.e. opposite party no.2 herein and there is no negligence attributed to them with respect to any infections incurred or the process of transfusion, the hospital cannot be held liable. There is also no competent doctor or expert opinion to suggest that the hospital did not adhere to standards of medical parlance either in the conduction of the surgery or in the procedure of transfusion.
In INDIAN MEDICAL ASSN. v. V.P.SHANTHA (1995) 6 SCC 651 the court approved a passage from Jackson and Powell on Professional Negligence and held that”
“The approach of the courts is to require that professional
men should possess a certain minimum degree of competence
and that they should exercise reasonable care in the discharge
of their duties. In general, a professional man owns to his client
a duty in tort as well as in contract to exercise reasonable care in
giving advise or performing services”.
Supreme Court then opined as under:
“The skill of medical practitioner differs from doctor to doctor. The very nature of the profession is such that there may be more than one course of treatment which may be advisable for treating a patient. Courts would indeed be slow in attributing negligence on the part of a doctor if he has performed his duties to the best of his ability and with due care and caution. Medical opinion may differ with regard to the course of action to be taken by a doctor treating a patient, but as long as a doctor acts in a manner which is acceptable to the medical profession and the court finds that he has attended on the patient with due care, skill and diligence and if the patient still does not survive or suffers a permanent ailment, it would be difficult to hold the doctor to be guilty of negligence”.
In Bolam v. Friern Hospital Management Committee, WLR at p.586 it is held as follows:
“Where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill….It is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art”
The degree of skill and care required by medical practitioner is so stated in Halsbury’s Laws of England (4th Edn., Vol.30, para.35):
“The practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care.“
“Deviation from normal practice is not necessarily evidence of negligence. To establish liability on that basis it must be shown, (1) that there is a usual and normal practice; (2) that the defendant has not adopted if;’ and (3) that the course in fact adopted is one no professional man of ordinary skill would have taken had he been acting with ordinary care.”
We observe from the record that Ex.A4 dated 12-6-2002 shows that Hemoglobin level is 6.02 gm% and on 13-6-2002 and also as per the admission of the complainant ‘B’ positive blood was given. It is not the complainant’s case that the blood was tested at opposite party No.3 hospital by opposite party No.1. It is an admitted fact by the complainant herself that one bottle of blood of ‘B’ positive was brought by the complainant’s attendants from opposite party No.2 blood bank and this was transfused to her on 13-6-2002. Admittedly another transfusion was done on 15-6-2002 with “B” positive blood. On 18-6-2002 Hysterectomy was performed which was uneventful, B.P. was normal and since the patient was anemic, another bottle of blood was advised to be transfused by opposite party No.1. Then the complainant’s attendants went to opposite party No.2 blood bank which did not have ‘B’ positive blood group and went to procure it from their Koti branch. A fresh blood sample was sent and Cauveri Blood Bank, Koti branch reported that the blood group was ‘A’ positive. Opposite party No.1 vide Ex.A4 got the blood tested again in their pathological lab which showed ‘A’ positive blood group and the test was again repeated on the same day vide Ex.A5 in Vijaya Diagnostic Centre, which also showed ‘A’ positive blood group. Exs.A12 and A13 are the letters written by opposite party No.2 to opposite party No.1 and opposite party No.1 to opposite party No.2 blood bank dated 20-6-2002 sending fresh samples of blood and to ascertain the correct blood group with RH factor. We observe from the case sheet and also from the complainant’s admission that the complainant was discharged on 5-7-2002. We observe from Ex.A26 that at the time of discharge there were not post operative complications and the patient made uneventful recovery and the wound healed well. However as the patient looked anemic, opposite party no.1 doctor referred her to Dr.Ravi Kumar, Hematologist and to be reviewed after one month. The case sheet also shows that on 05-10-2002 the patient once again went to opposite party No.3 hospital for check up. Ex.A21 shows that the Hematologist to whom opposite party No.1 referred stated that she is anemic but has nowhere noted that it was wrong blood transfusion which has led to this condition of the patient. She was asked to avoid certain drugs like Aspirin, Sulphar, Ibuprofen etc. From the material on record and the case sheet, we observe that the complainant has not stated anywhere that there was negligence in conduction of the surgery but it is her case that opposite parties 1 and 3 have wrongly transfused the blood which deteriorated the patient’s condition. But as seen from the record, opposite parties 1 and 3 cannot be made liable since initially the patient’s own attendants brought the ‘B’ positive blood from opposite party No.2 blood bank and after the successful conduction of the surgery, opposite parties 1 and 3 tested the blood and found it to be ‘A’ positive and immediately addressed a letter Ex.A13 to Cauveri Blood Bank to cross match the blood and RH factor. Opposite party No.1 referred the patient to Dr.Ravi Kumar Hematologist as she found the patient anemic. We do not se any negligence either in the line of treatment or that they did not follow the standards of medical parlance.
Keeping in view the aforementioned judgements and also the fact that the complainant failed to establish any negligence on behalf of the hospital either in the conduction of the surgery or in the blood transfusion, the opposite party hospital cannot be held liable. To reiterate since the doctor has passed away during the pendency of the proceedings, no tortuous liability can be fastened upon her. Even otherwise, as per the material available on record, the complainant failed to establish any medical negligence on behalf of opposite parties 1 and 3. Therefore, F.A.No.1777/2007 is allowed and the complaint against opposite parties 1 and 3 is dismissed.
Now we address ourselves to the allegation of negligence against opposite party No.2 blood bank?
Opposite party No.2 blood bank ought to have initially confirmed the blood group and then cross matched the blood group before selling it to the complainant’s attendants. Ex.A12 is the letter written by opposite party No.2 blood bank stating that the blood is not cross matched properly and this is dated 20-6-2002. This evidences that opposite party No.1 fresh sample of blood to the blood bank for cross matching. Even Ex.A13 evidences that the opposite party No.1 had sent a fresh sample of the patient for blood grouping to the blood bank. In Ex.A17 dated 28-6-2002, opposite party No.2 addressed a letter to opposite party No.1 doctor which reads as follows:
‘Initially the patient blood was subjected for routine blood grouping slide method it was ‘A’ positive. The same sample after few days it was giving ‘B’ group. Finally when we tested the fresh sample which was sent by you was giving the result of “A” group by slide method as well as by Reverse grouping method but not cross matching properly with ‘A’ group blood. The possibilities for discrepancy may be due to
1. Presence of irregular antibodies in the blood or
2. Presence of cold antibodies which develop due to storage in low temperature.
In the above circumstances the discrepancies in the blood grouping may develop. This sort of problems are only transitory for few days. Always fresh sample of the patient is advisable for each and every unit to avoid major problems. As the patient Haemoglobin is 6 gm% to correct the Anaemia presently “A1” POSITIVE packed cells can be safely transfused.’
From the aforementioned exhibits, it is evident that fresh samples of blood were sent by the hospital to the blood bank and the blood bank ought to have cross matched it properly before selling it to the complainant’s attendants. It is pertinent to note that the initial transfusion was done on 13-6-2002 and 15-6-2002 was done by ‘B’ positive blood group which was given by opposite party No.2 blood without properly cross matching. This is also evidenced under Ex.A17 dated 28-6-2002. We are of the considered view that reasonable care and diligence has not been taken by opposite party No.2 blood bank prior to the sale of blood to the complainant’s attendants. However, we also observe that the patient was alive and there is no expert opinion which would be construed to have nexus with the blood transfusion. However, for the admitted mistake committed by the blood bank they are liable to pay a reasonable compensation of Rs.10,000/- and Rs.5,000/- towards costs.
In the result F.A.No.1777/2007 is allowed and the complaint against opposite parties 1 and 3 is dismissed and appeal F.A.No.1699/2007 is allowed in part by reducing the compensation from Rs.5,00,000/- to Rs.10,000/- and confirming the costs of Rs.5,000/-. Time for compliance four weeks.
Sd/-PRESIDENT.
Sd/-MEMBER.
Sd/-MEMBER.
JM Dt.01-7-2010
