FA  574/2011 against CC 909/2010   on the file of the District Consumer Forum-1, Hyderabad.

Between :

1. Indo American Cancer Institute & Research Centre,

Road No.14, Banjara Hills, Hyderabad,

Rep. by its Consultant Dr.Ch.Mohan Vamsy .

Presently rep. by Chief Executive officer, R.P. Singh, S/o S. N. Singh

2. Dr.CH.Mohan Vamsy, Consultant,

C/o. Indo American Cancer Institute & Research Centre,

 Road No.14, Banjara Hills, Hyderabad.

3. Dr.Bhavani Eshwaragari, Micro Biologist,

Indo American Cancer Institute & Research Centre,

Road No.14, Banjara Hills, Hyderabad. ….Appellants/Opposite parties

And

Sri Shankaraiah, S/o.Sarvaiah,

Aged about 25 years, Indian,

Occ: Business, R/o. H.No.3-16,

Sivajinagar colony, Manikonda,

Rajendranagar,

Ranaga Reddy District. …                                      Respondent/Complainant

Counsel for the Appellants                       :           M/s. B. V. Subbaiah

Counsel for the Respondent         :           M/s.K.VisweswaraRao

Coram           ;          

                              Sri R. Lakshminarasimha Rao…      Hon’ble Member

And

                                    Sri T. Ashok Kumar                ..         Hon’ble Member

                                                Friday, the Eighteenth Day of January

                                                            TWOTHOUSAND THIRTEEN

          Oral Order       :   ( As per Sri T. Ashok Kumar , Hon’ble Member )

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01.       This is an appeal preferred by the unsuccessful opposite parties   as against the orders dated 04.05.2011  in CC 909/2010 on the file of the District Consumer Forum-1, Hyderabad. For convenience sake, the parties as arrayed in the complaint are referred to as under :

02.       The brief facts of the complaint are that the complainant approached opposite party hospital along with his wife and other family members on 30-6-2009 with a complaint of   weakness and loss of appetite and   on the advise of opposite party No.2 doctor he was  admitted in the  said hospital immediately. The opposite party No.2 subjected the complainant to several medical tests including Microlisa ;- HIV test at opposite party No.1 hospital for diagnosis. The opposite party No.3 Microbiologist of the opposite party No.1 hospital conducted Enzyme-linked Immuno Adsorbent Assay and gave the report that the complainant was found reactive to HIV 1 Ab test. Opposite party No.3 conducted, thereafter, the Western blot assay on 4-7-2009 and reported that the complainant had neutropenia and was Sero positive for HIV-1 and told them  that he was suffering from HIV-1 and discharged him from the hospital. The complainant and his family members were shocked and he suffered a lot and intended to commit suicide. Again, he got tested at ICTC, Government General and Chest hospital, Irrumnume, Hyderabad on 6-7-2009 and was found non-reactive to HIV-1 / HIV II/HIC I &2. He was also tested at ICTC, Area Hospital, Golconda on 8-7-2009 and was found non-reactive to HIV 1/HIV II/HIV1 & 2. Path care Labs Pvt.Ltd., East Marredpally, Secunderabad, also by  using Western Blot method on 11-7-2009  stated that the complainant was sero negative for HIV-1 and HIV II.  On account of it, the  complainant had to face humiliation, embarrassment, bear immense pain, suffering and agony and his image was tarnished and he was at the brink of being divorced and driven to the stage of committing suicide. He got issued a legal notice dt.20-7-2009 claiming damages of Rs.10.00 lakhs as compensation and the opposite parties in their reply legal notice dt.13-8-2009 denied the contents of legal notice and contended that the said report was given for WBA after two months for confirmation or by PCR   but the doctors have to declare a person as HIV positive after getting it confirmed. Hence,  the complaint claiming compensation of Rs.10.00 lakhs and costs

03.             OP  filed counter  opposing the claim of the complainant and denying the allegations made in the complaint. The brief facts of the counter  are as under :

The complainant was admitted as an in-patient on 30-06-2009 at 9.38 p.m. and the opposite party No.2, Dr.Mohan Vamsy saw him during morning rounds on     1-7-2009 and referred him to the in-house consultant physician and also asked for the opinion of consultant Medical oncologist. As the patient complained of weakness, loss of appetite and high grade fever, he was referred for a series of routine investigations’. On 1-7-2009, HIV report by Elisa was reactive and it was repeated thrice with fresh, blood samples but was reactive for HIV antibodies. Rapid Western Blot Assay was done on 3-7-2009 which showed incomplete indeterminate result. The overnight Essay also showed similar pattern. He was therefore advised to have WBA after two months or have confirmation by PCR (Polymerase chain Reaction) method and discharged on 4-7-2009. He was further advised to consult Dr. Gurunath of Yashoda hospital, a specialist in Infectious diseases for a clear evaluation. No final diagnosis that the patient was suffering from HIV-1 was arrived at and the opposite parties made a correct diagnosis and discharged the patient to consult the specialist for infectious diseases. It is denied that they informed that he was suffering from HIV-1 and that there is no deficiency in service on their part and thus prayed to dismiss the complaint.

04.,      Both sides filed evidence affidavits, written arguments reiterating their respective pleadings and  Ex. A1 to A18  were marked on behalf of the complainant and Ex. B1 and B2 are marked for the opposite parties.

05.       Having heard both sides and considering the evidence on record, the complaint is partly allowed directing the opposite parties to pay compensation of Rs.50,000/- (Rupees Fifty thousand only) and costs of Rs.2,000/- ( Rupees two thousand only) to the complainant within 30 days.

06.       Feeling aggrieved with the said order the unsuccessful OP filed this appeal on several grounds and mainly contended that the hospital authorities conducted the test as a pretext for evaluating the health condition  and for diagnosing his ailments and that they never gave any finding that he was suffering from HIV-1 and that in Discharge report marked as Ex.A8 itself  clearly mentions that  the result is only to determine and that the test has to be repeated after two months and  confirmed by PCR. The District Forum wrongly came to the conclusion that  the appellants have  not maintained confidentiality in communicating their views  to the complainant’s wife and other attendants accompanying him and after all the doctors only explained the nature of disease when questioned by his wife and attendants and the District Forum has not considered that the patient was referred to the infectious disease expert            Dr. Gurunath in Yoshoda Hospital to eliminate any possibility of infection and that the District forum wrongly came to a conclusion in the said context and awarded exorbitant compensation  and that there is no deficiency in service on their part and thus prayed to allow the appeal set aside the order of the District Forum.

07. Heard the learned counsel for the appellant    with reference to the grounds of appeal in detail and respondent/complainant filed written arguments.

08.    Now the point for consideration is whether the order of the District Forum is sustainable?

09.       There is no dispute that the complainant was admitted in OP.1 hospital on 30.06.2009 with a complaint of weakness and loss of appetite and that certain tests were conducted on him. According to the complainant the OP.3 Microbiologist of OP.1 hospital had conducted Enzyme-linked Immuno Adsorbent Assay and reported  that the complainant was found reactive to HIV 1 Ab test and that also conducted Western blot assay on 4-7-2009 and reported that the complainant was found HIV-1 positive with HIV-II indicated and that the hospital authorities also told the complainant his wife and family members at the time of discharge that the complainant was suffering from HIV -1 and that on hearing it, himself, his wife and family members were shocked  and that he was also subjected to humiliation and contemplated to commit suicide and that later on he had undergone required test at  ICTC, Government General and Chest hospital, Irrumnume, Hyderabad on 6-7-2009 where it was  found non-reactive to HIV-1 / HIV II/HIC I &2 and that later on he had undergone  at ICTC, Area Hospital, Golconda on 8-7-2009 and  was found non-reactive to HIV 1/HIV II/HIV1 & 2. Path care Labs Pvt.Ltd., East Marredpally, Secunderabad also by using Western Blot method stated that the complainant was Sero negative  for  HIV-1 and HIV –II on 11.07.2009.  The Ops did not seriously dispute about results of the said subsequent tests and on the other hand Ex. A11, A12 and A13 support the said contention of the complainant.  In Ex. A7  dt. 4.7.2009 discharge summary issued by OP 1 hospital,  it is mentioned that during routine investigations the complainant had detected to have Neutropenia and was Sero positive for HIV I and that he was advised confirmation with western blot and that patient and his Attenders were explained about the disease. Similarly Ex. A6 report dated 01.07.2009   Pertaining to the complainant issued by OP. 3 discloses that HIV I  Ab reactive and the method was  Enzyme-linked Immuno Adsorbent Assay. Ex. A8 is western blot report dated 4.7.2009 and it discloses that it is indeterminate result and that the test be repeated after two months.  Basing on it, Ops/Appellants argued that  only an opinion was given  and  that too no positive diagnoses report was given as it was only an Indeterminate. When it was indeterminate report the Ops should not have disclosed the same to the complainant more particularly to his wife and other Attendants/relatives.  In a Book , “ called as “the Synopsis of Forensic medicine and Toxicology”, written by Dr. K. S. Narayana Reddy, Honorary Professor of Forensic Medicine, SVS Medical College, Mahabubnagar (A. P), Retired Principal Osmania Medical College, ;Hyderabad in page 16 under the caption” professional Secrecy               ( confidentiality), he observed as under :  ” it is an implied term of contract between the doctor and his patient. The doctor is obliged to keep secret all that he comes to know concerning the patient in the course of his professional work. Everything said by a patient or his family members to physician in the context of medical diagnoses and treatment is confidential. Its disclosure would be a breach of trust and confidence. The patient can sue the doctor for damages (mental suffering, shame or humiliation), if the disclosure is voluntary, has resulted harm to the patient, and is not in the interest of the public.  The following points may be noted (1)       a doctor should not discuss the illness of his patent with others without consent of the patient., (2) if the patient is a major, the doctor should not disclose any facts about the illness without his consent to parents or relatives even though they may be paying the doctor’s fee.  In the case of a lminor or an insane person, Guardian or parents should be informed of the nature of the illness, (3) a doctor should not answer any enquiry by third parties, even when, enquired by near relatives of the patient, either with regard to the nature of the illness or with regard to any subsequent effect of such illness on the patient, without the consent of the patient.(4)a doctor should not disclose any information about the illness of his patent, without the consent of the patient, even when requested by a public or statutory body except in case of modifiable diseases. (5)  Even in the case of husband and wife, the facts relating to the nature of illness of the one, must not be disclosed to the others, without the consent of the concerned person. (6) In divorce and nullity cases, no information should be given without getting the consent of the person concerned.(7) medical officers in the Government service are also bound by the code of professional secrecy even when the patient is treated free. (8)   When a doctor examines a Government servant on behalf of the Government, he cannot disclose the nature of the illness to the Government without the patient’s consent   (9) When a domestic servant is examined at the request of the master, the doctor should not disclose any facts about the illness to the master without the consent of the servant, even though, the master is paying the fee/s. (10 ) a medical officer of a firm or factory should not disclose the result of his examination of an employee to the employer without consent of the employee. (11) A person in police custody as an under trial prisoner has the right not to permit the doctor who has examined him, to disclose the nature of his illness to any person. If a person is convicted he has no such right and the doctor can disclose the result to the authorities. (12) in reporting a case in any medical journal care should be taken that patient’s identity is not revealed from the case notes or photographs, (13) in the examination of a dead body certain facts may be found. The disclosure of which may affect the reputation of the deceased or cause anguish to his relatives and as such the doctor should maintain secrecy. (14) The medical examination for taking out life insurance policy is a voluntary act by the examinee and therefore, consent to the disclosure of the finding may be taken as implied.

According to the opposite parties, the result of the test is indeterminate and in such circumstances, they ought not to have mentioned in Ex.A7 discharge summary “As being Sero- positive for HIV I “and they should have reserved HIV I the opinion till confirmation of the same with Western Blot Method or other tests.

There is no evidence much less dependable evidence from the side of the opposite parties that they have obtained the consent from the complainant to disclose results of the relevant tests/ailment to his wife and the relatives and in view of the observations made in points (2) and (5) which are underlined above it amounts to deficiency in service on the part of the opposite parties. The said wrong diagnoses and deficiency in service on the part of Ops naturally subjected the complainant to untold mental agony.  The District Forum also assigning satisfactory reasons arrived at a right conclusion that opposite parities rendered deficient service, However, the compensation of Rs.50,000/- is little bit on higher side, therefore in the circumstances of case, the same is liable to be scale down to Rs.25,000/-.  However, the costs of Rs.2,000/- awarded to; the complainant by District Forum is sustainable. Thus order under appeal is liable to be modified accordingly.

10.        In the result, the appeal is allowed in part modifying the order of the District Forum and the opposite parties are directed to pay Rs.25,000/- compensation to the complainant towards mental agony etc and costs of Rs.2,000/- awarded by the District Forum remains unchanged. Parties shall bear their own costs of the appeal. Time for compliance four weeks from the date of receipt of copy of the order.

                                                                                    MEMBER

                                                                                    MEMBER

                                                                                    DATED : 18.01.2013