Hon’ble Haradhan Mukhopadhyay, President.
The basic fact of the case of the Complainant in brief is that due to some medical requirements the Complainant gave blood to the OP Lab Panacea Diagnostic Centre on 20.10.16 for which they charged Rs.50/-. After conducting the blood test by Dr. G Basu as per prescription of Dr. J.K. Sarkar, M.D. delivered the blood test report as A+ vide patient Id No.1020/0046, Lab Serial No.0052 dated 20.10.16. Again the Complainant went to the OP for blood test on 19.09.19 to conduct blood test with patient Id No.48, Lab Serial No.0070, dated 19.09.19 wherein after conducting the test the OP held blood group as B+. Therefore it is crystal clear that the OP committed gross medical negligence in conducting the said blood test of the Complainant. In order to remove the confusion the Complainant again conducted blood test on 18.05.21 from another Lab namely Paramayu Diagnostic Centre at Cooch Behar wherein her blood group test report was B+. Thereafter the Complainant disclosed the entire matter to the OP but they did not admit the same and threatened the Complainant. At the time of the receiving original report the OP took away the money receipt from the Complainant. Due to wrong report of the OP dated 20.10.16 the OP suffered mental pain and agony and pecuniary loss. Over that matter the Complainant sent a legal notice on 22.07.21 through his Advocate Mr. Santosh Kr. Sah which the OP refused to accept on 26.07.21. The cause of action the present case arose on 20.10.16 and on subsequent dates lastly on 26.07.21.
The Complainant therefore prayed for an order directing the OP to refund Rs.100/- as charged of the blood test, Rs.2 Lakhs for medical negligence and deficiency in service and Rs.10,000/- towards litigation cost as well as cancellation of the license of the O.Ps Lab.
The O.Ps in contesting the case denied each and every allegation. The contention of the O.P. No.1 in brief is that the case is barred by law of limitation as the case was filed after lapse of 5 years. O.P. No.1 is not a Doctor so he has no knowledge about medical function diagnosis etc. O.P. No.2 Dr. G. Basu being a Doctor stated in his written version which should be also considered as defence of the O.P. No.1. The O.P. No.1 claimed that the case is liable to be dismissed with cost.
The O.P. No.2 denied all the allegations in his written version and challenged the case as barred by limitation. The positive defence case of the O.P. No.2 in brief is that the O.P. No.2 is Pathologist, MJN Medical College and Hospital, Cooch Behar having wide experience in this field. As it appears from the supplied documents the Complainant Suman Sarkar conducted blood test with O.P. No.1 Panacea Diagnostic Centre on 20.10.16 and Rh Factor being referred by one Dr. J.K. Sarkar, M.D. The said test was performed by O.P. No.2 being one of the consultant Pathologists of the O.P. No.1 Laboratory and gave his impression “Blood Group-A”. Despite all of the modern technologies and reagents available to Pathologists blood group(ABO) discrepancies still occur due to different reasons. So keeping in mind safety of the patient’s health and to avoid any complication O.P. No.2 clearly mentioned in his report “Re-grouping and Reverse grouping with known red cells are mandatory before any transfusion and confirmation”. There was no fault in performing the test by the O.P. No.2. The identity of Suman Sarkar came on 20.10.16 and 19.09.19 cannot be ascertained due to lapse of time. Anomalous results in blood group testing can be due to various reasons such as due to weak/ missing antibodies, missing or weak antigens, proteins or plasma abnormalities, exposure of hidden erythrocytes antigens, patient with cold auto antibodies, A2 or A2B individual with anti A1 antibodies, naturally occurring or irregular antibodies reacting at room temperature. Though almost always an individual has the same blood group for life, but rarely it changes through addition or suppression of an antigen in infection malignancy or autoimmune disease or bone marrow transplant. So reports furnished by the OP are not wrong. O.P. No.2 denied the other allegation. The O.P. No.2 claimed that the case is liable to be dismissed with cost.
In view of the question of facts and law involved in the instant case the following points are required to be determined for proper adjudication of the case.
Points for determination
- Whether the present case is maintainable in its present form and prayer?
- Whether the Complainant is entitled to get the relief as prayed for?
- To what other relief if any the Complainant is entitled to get?
Decision with reasons
Point No.1.
The O.Ps challenged the case as not maintainable on the ground that the case is barred by limitation. Ld. Defence counsel argued that the cause of action actually arose on 20.10.16 when the first disputed blood report was received by the Complainant. But the Complainant filed the case after lapse of three years.
Ld. Advocate for the Complainant defended the allegation of the OP on the ground that the cause of action actually arose when the OP conducted the second times blood test on 19.09.19 and on subsequent dates.
After perusing the documents it transpires that the Complainant first time conducted the blood test on 20.10.16 with O.P. No.1 Panacea Diagnostic Centre conducted by Pathologist Dr. G Basu O.P. No.2. Another document being the blood test report dated 19.09.19 conducted by Dr. G. Basu under O.P. No.1. It is further disclosed from the said two reports that in the first report dated 20.10.16 the blood group of the Complainant Suman Sarkar was ascertained as A+ whereas in the second test conducted by O.P. No.1 on 19.09.19 the blood group was ascertained as B+. Therefore without testing of second time blood group there was no scope for the Complainant to know that the OP committed the error. Without conducting the second test if there was no further test then there would have no scope for the Complainant to know that his blood group was ascertained wrong in the first time. Therefore the cause of action actually arose from the date of the second test i.e. 19.09.19. The present case is filed on 21.09.21. Therefore it cannot be said that the case was filed beyond the period of limitation.
O.P. No.2 also took a defence plea of impersonification but they could not file any documents to establish that the Suman Sarkar being the Complainant and the patient of the first blood test is different from the Suman Sarkar in respect of whom the blood test was conducted second time. It is further found from the report dated 20.10.16 that the age of Suman Sarkar Complainant was 22 years on 20.10.16 and his age as per the second report after three years is 25 years. Thus after cross checking it is also established that the Suman Sarkar of the first test and the Suman Sarkar of the second test is the same and the identical person, so the defence plea of impersonification by the Complainant also fails.
Accordingly, point No.1 is answered positively in favour of the Complainant.
Point Nos. 2 & 3.
The present points relates to ascertainment as to whether the Complainant is entitled to get the relief as prayed for or any other relief.
The Complainant in order to establish the case adduced both oral evidence in the form of evidence on affidavit and documentary evidence like all the blood test report, notice etc.
After perusing the blood test report it is crystal clear that the blood test report dated 19.09.19 conducted by the O.Ps is different from the blood test of the Complainant conducted by the O.Ps on 20.10.16. In order to verify the second report the Complainant again conducted another test on 18.05.21 wherein the blood group of the Complainant was ascertained as B+ conducted by Dr. S. Roy, Paramayu Diagnostic Centre. Thus after perusing the three reports filed by the Complainant and proved by affidavit which are not challenged by the OP, it clearly reveals that the blood test report of the Complainant dated 20.10.16 was defective and not in conformity with the actual blood group of the Complainant.
In order to strengthen the defence plea that there are different ground against discrepancy or anomalous in the result of blood group testing like technical discrepancy or clinical discrepancy, Ld. Defence Counsel filed Xerox copy of medical literature. So far as the Group-1 discrepancy is concerned the grounds of discrepancy are:- Newborns, Elderly Patients, Patient with Leukemia or Lymphoma, Patients on immunosuppressive drugs, Patients with immunodeficiency diseases, Patients with bone marrow transplant and Group-2 discrepancy are Subgroups of A or B, Leukemia and Lymphoma, Excess antigen of blood group soluble substances, Acquired A or B antigens.
After perusing the evidence on record it is found that the O.Ps did not cross-examine the Complainant to ascertain as to whether the Complainant had been suffering from any of the diseases which may be a ground for this aforesaid discrepancy of the blood group. It is also found that the Complainant is neither a new born baby nor is he elderly person. The four kinds of disease under group-1 discrepancy is not involved with the Complainant. So also the OP could not extract any of the cause for discrepancy in blood group under group-2 discrepancy by cross-examining the Complainant. Therefore the O.Ps failed to discharge their onus to establish the defence case. In fact onus of proving the case mainly lies upon the Complainant which he has discharged by oral and documentary evidence. But the said onus was shifted upon the O.Ps to establish that the discrepancies was caused for any of the grounds stated in the medical literature. But in the instant case the Complainant neither cross-examined the Complainant nor did produce any document to show that Complainant belongs to under any of the categories responsible for the discrepancy in the blood group test.
In the backdrop of the discussion made herein above vis-à-vis the observation made therein it is evident that the O.Ps conducted the blood test of the Complainant not properly which resulted in mental pain and agony.
Ld. Defence Counsel took the plea that due to such discrepancy the Complainant did not suffer any loss or injury so he cannot claim any compensation.
Ld. Advocate for the Complainant strongly objected to the same and argued that had there not been the second test the Complainant could have faced life threat by transfusion of wrong blood in case of emergency. The argument has reasonable forced and accepted. In fact the human being could certainly face anxiety, tension, mental pain and agony if he finds that his blood group is changed despite his having no disease. If he carries an identity card with mentioning of specific blood group and meets with any accident the blood would be transfuted on that basis. If there is no scope for cross checking then his life would certainly be under threat.
Having considered the evidence on record and the findings made herein above the Commission reasonably comes to the inference that the Complainant is entitled to get the relief to some extent. Issue Nos. 2 & 3 are accordingly decided in favour of the Complainant.
In the result the complaint case succeeds on contest with cost.
Hence, It is
Ordered
That the complaint case No. CC/53/2021 be and the same is allowed on contest with cost of Rs.5,000/-.
The Complainant do get an award against the O.Ps for a sum of Rs.100/- towards refund of blood test charge, Rs.25,000/- towards deficiency in service and Rs.5,000/- towards litigation cost.
The O.Ps jointly and severally are directed to pay a sum of Rs.30,100/-(Rupees thirty thousand one hundred only) to the Complainant within 30 days from the date of passing Final Order failing which the Complainant shall be entitled to recover the said money from the O.Ps together with interest @ 6% per annum.
Let a plain copy of this Order be supplied to the concerned party by hand/by Registered Post with A/D forthwith, free of cost, for information & necessary action as per rule.
The copy of the Final Order is also available in the official website: www.confonet.nic.in.
Dictated and corrected by me.
