Complaint filed on: 21-07-2011 Disposed on: 11-09-2012 BEFORE THE BANGALORE IV ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BANGALORE URBAN DISTRICT, NO.8, SAHAKARA BHAVAN, CUNNINGHAM ROAD, BANGALORE – 560 052 C.C.No.1344/2011 DATED THIS THE 11th SEPTEMBER 2012 PRESENT SRI.J.N.HAVANUR, PRESIDENT SRI.H.M.SHIVALINGAPPA, MEMBER Complainants: - M.Rajappa Since dead by his L.Rs, 1. Smt.Sharadamma, Major in age, W/o. Late M.Rajappa 2. Sri.Ambarish Major in age, S/o. Late M.Rajappa 3. Sri.Harish Major in age, S/o. Late M.Rajappa Complainants’ no.1 to 3 are all residing at No.530/2, Sorahunase, Madhuranagar, Bangalore east, Bangalore-87 V/s Opposite party: - St.Johns Medical College and Hospital, Reptd by the Medical Superintendent, Bangalore-34 ORDER SRI.J.N.HAVANUR, PRESIDENT This is a complaint filed by the complainants against the OP, under section 11 and 12 of the Consumer Protection Act, praying to pass an order, directing the OP to pay Rs.10.00 lakhs towards refund of medical expenses, damages and cost of litigation. 2. The brief facts of the complaint can be stated as under. The first complainant’s husband and father of the 2nd and 3rd complainants visited the OP hospital on 13-2-2011 with the assistance of his younger brother M.Narayanaswamy for on and off fever, in order to get better treatment and on the same day the OP authorities got the said person as inpatient with an illegal intention and also collected Rs.10,000=00 as inpatient deposit. The authorities from 13-2-2011 to 18-2-2011 conducted various tests on the inpatient for the purpose of diagnose for the cause of on and off fever suffering from the inpatient. The said various tests conducted by the OP hospital is known to be unnecessary for the reasons that the OP hospital authorities could not able to diagnose the cause of ill health suffering by the said inpatient. The OP medical department voluntary counseling and testing centre on 14-2-2011 also conducted the test of HIV-1 and HIV-2 on the inpatient by collecting serum sample. On the same day, the OP hospital laboratory gave a report stating that the serums sample of inpatient is non-reactive for antibodies to HIV – 1 and 2. The OP without diagnosis for the cause of on and off fever to the said M.Rajappa got continuous admission as inpatient, but there was no improvement of ill health of the inpatient M.Rajappa and the OP goes on charging the amount without any treatment or diagnosis. Non diagnosis and non improvement of ill health to the said inpatient on 18-2-2011 the younger brother of the inpatient by name M.Narayanaswamy was forced to discharge the inpatient from the OP hospital. The OP at the time of discharging the patient unnecessarily collected a sum of Rs.26,533=00 from the patient. On the same day the patient was admitted to the Manipal hospital at No.98, Airport road, Bangalore. On 26-2-2011 the said hospital in order to diagnose the cause of ill health to patient they have collected specimen serum of patient and on 26-2-2011 they have given a report with regard to human immunodeficiency virus 1 and 2 (HIV-ELISA) as positive. But on 14-2-2011 the OP hospital laboratory gave a report as negative for the same test, the OP aspect of wrong diagnosis to the patient M.Rajappa caused mental agony and shock and also of health as well as wealth. The patient M.Rajappa due to shock could not respond to the medicines and finally on 9-3-2011 the patient was discharged from the Manipal hospital and brought to his residence at Madhura nagar, Bangalore. The complainants have spent an amount of Rs.51,180=00 in the Manipal hospital. The OP has been grossly negligent and deficient in the service of care and treatment in diagnosing the patient M.Rajappa who was suffering from ill health and on that account he was admitted to OP hospital, thus caused loss, injury and damages in monetary terms and harassment and mental agony to the patient M.Rajappa as well as complainants. Due to deficiency in service and negligence of the OP, the husband of the 1st complainant and farther of the complainants’ no.2 and 3 passed away on 31-3-2011 leaving behind the complainants as his legal heirs. On 26-3-2011 there was legal notice caused to the OP intimating his negligence and deficiency of service in causing mental agony as well as loss of health and as well as wealth. The said notice was served on the OP on 28-34-2011, the OP gave untenable reply. Hence, the complainants have come up with the present complaint. 3. After service of notice, the OP has appeared through its counsel and filed version, contending interalia as under: The complaint of the complainants is not maintainable either in law or on facts. The services provided to the patient were in accordance with the standard medical practice. On 13-2-2011 the patient came to St. John’s Medical College Hospital with a history of on and off high grade fever for two months alongwith loss of appetite and weight, and at the time of his admission to the OP hospital, the patient had been suffering from high fever for 15 days, had a blood pressure of 90/70 mm hg, pulse rate of 115 per minute and a temperature of 101.4 F and looked toxic. On account of the precarious health conditions of the patient, the doctors of the OP advised admission, and accordingly after obtaining the consent of the patient’s son, the patient was admitted in the emergency department of the OP hospital. The OP hospital conducted necessary tests, and the patient was diagnosed with fungal infection of the mouth which is a symptom of an immune suppressed / HIV positive person, and the doctors of the OP suspected that the patient was HIV positive, and the patient was sent to the voluntary counseling and testing centre (VCTC) for HIV testing and test conducted by VCTC came to be negative. The doctors of the OP hospital, who had been treating the patient strongly suspected that he may be in an immune compromised state and wanted to rule out HIV infection through another test. The patient was subjected to the HIV ELISA test and the test results of the HIV ELISA were awaited as early as on 15-2-2011. On 17-2-2011 at about 11.00 p.m. the patient refused to take any medication and became non cooperative, for the reason best known to them, the patient and his relatives informed the doctors and the nurse who were present at the time that they wanted to get the patient discharged from the OP hospital. Despite counseling by the doctors that it would not be prudent to discharge the patient considering that he was extremely sick, the patient and his relatives insisted that he may discharged on 18-2-2011 and accordingly the patient was discharged on 18-2-2011 against the medical advice. The results of HIV ELISA were available on 16-2-2011 at the laboratory of the OP hospital, and by the time the report of the HIV ELISA test could be communicated to the concerned physician, the patient had been discharged against the medical advice from the OP hospital. The patient and his relatives acted in haste and got him discharged from the OP hospital despite being given strong advice to the contrary by the OP hospital. The doctors of the OP hospital acted with reasonable competence and skill as is expected from any medical professional. The OP hospital was shocked to receive a legal notice and the OP hospital sent a reply dated 30-4-2011. It is true that, the patient was admitted to the OP hospital on 13-2-2011. In order to ascertain the cause for his recurring illness detailed investigations were required to be conducted which warranted his admission in the OP hospital. It is true that a sum of Rs.10,000=00 was collected and a receipt was also issued, these charges are levied on all patient admitted in a private ward of the OP hospital. All the tests conducted by the OP hospital were necessary to determine the precise cause of his continuing illness an d to eliminate any doubt regarding the nature of his illness. The patient had left the OP hospital against the medical advice, it is pertinent to state that, when a person is HIV positive, the immune system of such a person is completely jeopardized which renders him/her extremely vulnerable to infections/diseases. The results of ART are not immediate and requires considerable time to show significant results. The patient was suffering from HIV-AIDS and as such it was impossible for him to recover, especially in a span of five days. It is true that a sum of Rs.26,533=00 was collected from the patient at the time of discharge. Although the patient was admitted to Manipal Hospital on 18-2-2011, the HIV-ELISA test was conducted only on 25-2-2011, rapid tests such as those recommended by NACO are not 100 percent accurate and the results of the test are beyond the control of the OP hospital. Nevertheless, a second test had been conducted and the results of the same were awaited when the patient left the OP hospital despite being advised to the contrary. Repercussion of HIV-AIDS has nothing to do with mental shock or agony. The assertion that the patient suffered mental agony, shock and loss of health on account of negative result of the HIV test is concocted and untenable. From the documents produced by the complainants it is evident that after his discharge from the OP hospital, the patient did not undergo any treatment for HIV-AIDS at any point in time. The OP hospital has done all that was called for in the circumstances by the best standards of medical practice. The complainants are attempting to take advantage of the death of the patient in order to unjustly enrich themselves. The complainants have not made out any case in the complaint, so the complaint be dismissed with cost. 4. So from the averments of the complaint of the complainants and objection of the OP, the following points arise for our consideration. 1. Whether the complainants prove that, The OP has been grossly negligent and there is deficiency of service on the part of the OP in making wrong diagnosis of ailment of the patient by name Rajappa who died on account of mental agony and shock? 2. If point no.1 is answered in the affirmative, what relief, the complainants are entitled to? 3. What order? 5. Our findings on the above points are; Point no.1: In the Negative Point no.2: In view of the negative finding on the Point no.1, the complainants are not entitled to any relief as prayed in the complaint Point no.3: For the following order REASONS 6. So as to prove the case, the complainant no.2 has filed his affidavit by way of evidence and one Dr.Ravi examined as a expert witness and produced 14 documents with list dated 21-7-2011 On the other hand, one Dr.Rekha Pradeep, Professor working in the Medicine Department of OP hospital has filed her affidavit and produced copies of documents. We have heard the arguments of both parties, and we have gone through the oral and documentary evidence of both sides meticulously. 7. One Ambarish, who being the 2nd complainant has stated in his affidavit that, the 1st complainant is his mother and the 3rd complainant is his younger brother and he is swearing to this affidavit on their behalf also. His father Rajappa was complaining of on and off fever on 13-2-2011 so he has taken him to OP hospital along with his paternal uncle M.Narayana Swamy for better treatment and the OP authorities advised to admit his father as inpatient in order to give treatment to his father and at that time, they have also collected Rs.10,000=00 from him as inpatient deposit. The OP authorities have conducted various tests on his father for the purpose of diagnose for the cause of on and off fever. The various tests conducted by the OP hospital is known to be unnecessary, as the staff of the OP hospital could not able to diagnose the cause of ill health suffering by his father. The authorities of the OP hospital have also conducted the test of HIV-1 and HIV-2 on his father by collecting serum sample and result given by the OP hospital was negative. The OP authorities without diagnoses for the cause of on and off fever to his father got continuous admission as inpatient, but there was no improvement of ill health of his father and authorities of the OP went on charging the amount without any diagnosis and for the better treatment. When the OP authorities could not diagnose the illness caused to his father and his father’s younger brother M.Narayanaswamy on 18-2-2011 got discharged from the OP hospital to get proper diagnosis of his father’s ill health and for better treatment and the OP has collected a sum of Rs.26,533=00 from him at the time of discharge of his father, eventhough the OP hospital never diagnosed the cause of ill health to his father and also not tried to give proper treatment to his father. On 18-2-2011 itself his father was taken to the Manipal hospital, Airport road, Bangalore directly from the OP hospital. In the said hospital HIV-1 and HIV-2 test was conducted on his father and the report given as positive, for the said reasons his father got mental agony and shock in view of the wrong diagnosis given by the OP hospital. His father could not respond to the medicine given by the Manipal hospital for the shock caused to him on account of wrong diagnosis given by the OP hospital. On 9-3-2011 his father was discharged from the Manipal hospital in order to change of atmosphere on the mind of his father and on that occasion he has paid Rs.51,180=00 to the hospital. After one week from 9-3-2011 again on 16-3-2011 he got admitted his father to Manipal hospital but due to negligence of OP authority and deficiency of service his father was passed away on 31-3-2011. His father died on account of medical negligence and deficiency of service caused by the OP and on account of death of his father, his mother also fell ill of shock and she also got the result of HIV-1 and HIV-2 positive He does not possess any employment and his brother also does not have any employment and their family has lost the only bread earner, so he prays to allow the complaint and pass an order by awarding compensation as prayed for. 8. One Dr.V.Ravi who being the examined in this case as expert evidence has deposed in his evidence that, the hospital has performed HIV test and result given by the hospital was negative. St. John’s hospital performed the 2nd HIV test and HIV 2nd test result came as positive and report was kept in a sealed cover and sent to treating doctor. The patient got discharged against the medical advice from the hospital and got admitted to Manipal hospital, Bangalore and again at Manipal hospital a series tests were conducted including HIV test and result of HIV test in Manipal hospital was positive. One additional test was preferred at Manipal hospital to find out immune status of the patient and it revealed that there was an advanced state of immune deficiency and this indicates the patient was in an advanced stage of immune deficiency for a long time. As per his opinion, no test can be 100 percent perfect. The witness further volunteered to state that in two situation HIV test can be negative although the patient is having HIV infection. In the cross examination the said witness has stated that, the lack of response to the treatment at both the hospitals is on account of advanced stage of immune deficiency. 9. Let us have a cursory glance at the documents of the complainants. Document no.1 of the complainant list dated 21-7-2011 is the copy of death certificate of M.Rajappa issued by the Chief Registrar of Birth and Death, and the date of death is mentioned in the certificate as 31-3-2011 who died in the Manipal hospital. Document no.2 consists of four copies of identity cards of deceased M.Rajappa, his wife Sharadamma, and two sons by names Ambarish and Harish issued by the Election Commission. Document no.3 is the copy of Ration card issued by the Food and Civil supply department in the name of deceased Rajappa wherein the names of his wife and two sons are found mentioned. Document no.4 is the copy of legal notice dated 26-3-2011 issued by the complainants lawyer to the OP stating that, the report given by the OP hospital dated 14-2-2011 in respect of HIV-1 and HIV-2 was negative and this aspects of wrong diagnosis of the OP caused mental agony and loss of health of their client and so the OP is liable to pay compensation and in order to recover the same for deficiency of service of the OP, the complainants will approach the consumer forum and take legal steps. Next document of the complainants consists of postal receipts and postal acknowledgement card for having served the notice. Document no.6 is the copy of reply notice of the OP dated 30-4-2011 issued to the complainants lawyer denying the contents of notice and in the reply, it is stated that, there is no deficiency of service on the part of the OP, and it is denied that unnecessary tests were conducted on the patient and diagnosis of the disease in the case of prolonged illness needs time. Document no.7 is the patient settlement receipt dated 18-2-2011 for having received Rs.26,533=00 from the patient by name M.Rajappa and discharge intimation slip was also found in the said receipt. Document no.8 is the inpatient summary of patient M.Rajappa dated 13-2-2011 issued by the OP hospital. Document no.9 is the discharge summary of patient by name M.Rajappa wherein it is stated that, the patient was admitted on 13-2-2011 and discharged on 18-2-2011 against the medical advice and HIV- 1 and HIV-2 report came to be negative. The said discharge summary was enclosed with all the tests report including HIV tests report wherein HIV test report came as negative. Document no.12 is the discharge summary of Manipal hospital wherein it is stated that, M.Rajappa was admitted to the Manipal hospital on 18-2-2011 and discharged on 9-3-2011 and in the diagnosis column it is stated that, the HIV positive status with severe immunosuppression and the said discharge summary was enclosed with all the test report wherein HIV-1 and 2 tests came as positive. The complainants have also produced inpatient final bill issued by the Manipal hospital and in these bills it is stated that the patient was discharged on 9-3-2011 by charging Rs.48,111=00. 10. Taking the evidence of the 2nd complainant and documents of the complainants as mentioned above, it is transpired that, the oral evidence of the 2nd complainant that, various tests conducted by the OP hospital is known to be unnecessary and his father died on account of medical negligence and deficiency of service caused by the OP is not corroborated by any believable documentary evidence. Merely because the test of HIV-1 and 2 conducted by the OP as negative and subsequent test conducted by the Manipal hospital on the patient by name M.Rajappa as positive, it cannot be presumed and assumed that M.Rajappa died on account of negligence and deficiency of service on the part of the OP hospital only. Besides Dr.Ravi who being the expert examined as witness has stated during his evidence and opinioned that no test can be hundred percent perfect and in two situations HIV can be negative although the patient is having HIV infection and lack of response to the treatment at both the hospitals is on account of advanced stage of immune deficiency. The said evidence of expert doctor makes it abundantly clear that in situation like this i.e. the first test conducted by the OP with regard to HIV test of deceased as negative and the 2nd test conducted by the Manipal hospital as positive, no test can be hundred percent perfect and HIV test can be negative although the patient is having HIV infection. The lack of response to the treatment at both the hospitals is due to advanced stage of immune deficiency. In fact, the evidence of the 2nd complainant i.e. his father died on account of negligence of the OP and there is deficiency of service on the part of the OP is not countenanced by evidence of the expert evidence of doctor by name Dr.Ravi. This is all about the material evidence of the complainants. 11. Let us have cursory glance at the oral and documentary evidence of the OP. One Dr.Rekha Pradeep, who being the Professor Medicine department of the OP hospital has stated in her affidavit by way of evidence that, the patient now deceased came to the Hospital on 13-2-2011 with a history of on and off high grade fever for two months alongwith loss of appetite and weight. And the patient was advised admission as an in-patient in the OP hospital on account of the precarious health condition and given the detailed investigations. Diagnosis of HIV at the VCTC of the OP hospital established by the NACO is conducted with the use of the rapid test kits supplied to the VCTC by NACO and result returned as negative. The results of this test are beyond the control of the OP hospital, so the OP hospital cannot be held responsible for the same. Subsequently the results of the HIV ELISA were obtained. The results indicated that the patient was in fact HIV positive and the results of the HIV ELISA were available at the OP laboratory on 16-2-2011. Before the report of the HIV ELISA test could be communicated to the concerned physician, the patient had already been discharged from the OP hospital against the medical advice. All the doctors of OP hospital were involved in the treatment of the patient and they have treated the patient with extreme care and diligence in accordance with highest standards of medical practice. Since the patient was suffering from HIV-AIDS, it was very difficult for him to recover much less in a span of five days. On 17-2-2011 itself the patient refused to take medicine and for the reasons best known to him, the patient and his relatives insisted on discharge against medical advice. At the time of discharge Rs.26,533=00 was collected from the patient. The mental agony claimed to have been suffered by the patient has nothing to do with the nature of the treatment given to the patient at the OP hospital or the results of the rapid test conducted at the VCTC. The complainants’ assertion that the negative results of the HIV test caused the patient mental agony, shock and loss of health is false and baseless. It is evident from the medical records produced by the complainants that the patient did not receive any treatment after his discharge from the OP hospital even though he was at an advanced stage of HIV-AIDS. It is false to say that, the death of patient on 31-3-2011 was occasioned by deficiency of service of the OP hospital. The complainants are attempting to take advantage of the death of the patient in order to enrich themselves unjustly. So the complaint be dismissed, in the interest of justice and equity. 12. Document no.1 of the OP is the copy of laboratory report of the OP hospital dated 14-2-2011 wherein HIV- 1 and 2 came as negative in respect of patient by name Rajappa. Document no.2 is the test report of Rajappa dated 15-2-2011 wherein ELISA test for HIV – 1 and 2 came as positive i.e. repeatedly reactive. Document no.3 is the discharge summary of Rajappa dated 18-2-2011 and he was discharged against medical advice. The test reports and investigation reports of the patient by name Rajappa were produced by the OP alongwith the said documents. These records go to reveal that, the patient was discharged from the OP hospital against the medical advice and at that time, the patient was refused to take medicine and his first HIV report came as negative and subsequent test i.e. ELISA of OP came as positive. The oral and documentary evidence of the OP as mentioned go to show that, the patient Rajappa was subjected to all the tests in OP hospital including HIV test and HIV test report given by the OP hospital came first as negative and again blood sample of the patient Rajappa was collected and HIV ELISA test was conducted by the OP hospital and that test came as positive and by that time, the patient Rajappa has been discharged from the OP hospital against the medical advice i.e. on 18-2-2011 and admitted to the Manipal Hospital and there HIV test was conducted and report came as positive and the patient was discharged from the Manipal Hospital and once again the patient Rajappa was admitted to the Manipal Hospital and died on 31-3-2011. 13. Viewing the oral and documentary evidence of the OP, it is no doubt true that, the OP has conducted all the tests of patient Rajappa including HIV test and HIV test given by VCTC came as negative. Since the doctors working in the OP hospital suspected about the HIV by seeing fungal infection in the mouth of patient Rajappa, again he was subjected to ELISA test and that report came as positive. The moment the 2nd report conducted by the OP hospital was about to be intimated, by that time the patient Rajappa was discharged from the OP hospital and admitted to the Manipal hospital and subsequently the patient Rajappa died on 31-3-2011 in Manipal hospital due to HIV. It is no doubt true that, when HIV test was conducted by the OP hospital the report came as negative and HIV ELISA test was conducted again suspecting HIV that report came as positive and in the Manipal Hospital also the HIV test came as positive. It is the specific assertion of the complainants both in the complaint and evidence of the complainant no.2 that whatever test report given by the OP hospital was taken to heart by patient Rajappa and died in the hospital due to wrong diagnosis of the OP. If the doctors working in the OP hospital feel to repeat the test of HIV after getting HIV report as negative, they are having every right to repeat the test and get confirmed, the suspected disease in the patient. In case the patient takes the test report of HIV to heart and collapses after knowing the test report, no negligence or deficiency of service can be attributed to the doctors working in the OP hospital and such type of incident i.e. the death of the patient hearing the test report of HIV can be termed as death due to shock and nothing more else, so for such type of death of the patient the doctors working in the OP hospital can not be blamed. 14. Taking the material evidence of the complainants and compare the same with oral and documentary evidence of the OP, it is vivid and clear that, the doctors working in the OP hospital have taken maximum care and caution while treating the patient Rajappa and conducted all the tests including HIV-1 and 2 and evenafter the report of HIV came as negative, OP collected the blood sample and conducted HIV ELISA test 2nd time. On 18-2-2011, the patient Rajappa got discharged from the OP hospital against medical advice. Since the patient Rajappa was suffering due to advanced stage of HIV, he did not return to state of complete good health and died in the Manipal hospital on 31-3-2011. On making careful scrutiny of the case of complainants on the back ground of oral and documentary evidence of both parties, it is unambiguously clear that, the oral and documentary evidence of the OP are more believable trustworthy and acted upon than the material evidence of the complainants, and as such, we are of the considered that, the complainants who knock the door of this forum seeking relief have utterly failed to prove this point with clear and tangible material evidence that, the OP was grossly negligent and there is deficiency of service on the part of the OP in making wrong diagnosis of the ailment of the patient by name Rajappa who died on account of mental agony and shock. The material evidence placed by the complainants are totally insufficient to hold that, the OP is negligent and there is deficiency of service on the part of the OP, and according, we answer this point in a negative. 15. In view of our negative finding on the point no.1, the complainants are not entitled to any relief as prayed in the complaint. So, we answer this point in a negative. In the result, for the foregoing reasons, we proceed to pass the following order. ORDER The complaint of the complainants is hereby dismissed. No cost. Supply free copy of this order to both parties. (Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open forum on this, the 11th day of September 2013). MEMBER PRESIDENT |
