Andhra Pradesh

Chittoor-II at triputi

CC/50/2017

N.Karthikeyulu, S/o Late N.Gajendra Naidu, Manager, Saptagiri Grameena Bank - Complainant(s)

Versus

The Managing Director, APOLLO Clinic, Tirupati Tirumala Family health care Pvt. Ltd. - Opp.Party(s)

Ch. M.S. Raju

10 Aug 2018

ORDER

Filing Date: 09.10.2017

Order Date:10.08.2018

 

 

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II,

CHITTOOR AT TIRUPATI

 

 

      PRESENT: Sri.T.Anand, President (FAC)

               Smt. T.Anitha, Member

 

 

 

FRIDAY THE TENTH DAY OF AUGUST, TWO THOUSAND AND EIGHTEEN

 

 

 

C.C.No.50/2017

 

 

Between

 

 

N.Karthikeyulu,

S/o. late. N.Gajendra Naidu,

Hindu, aged about 55 years,

Manager,

Saptagiri Grameena Bank,

D.No.19-8-172/C, S.B.I. Colony,

Near R.C.Road,

Tirupati Urban Mandal,

Chittoor District, A.P.                                                                      … Complainant.

 

And

 

 

1.         The Managing Director,

            Apollo Clinic,

            Tirupati Tirumala Family Health Care Pvt. Ltd.,

            D.No.19-9-29/2A, Tiruchanur Road,

            Sankarambadi Circle,

            Tirupati Urban Mandal,

            Chittoor District, A.P.

 

2.         The Administrative Officer,

            Apollo Clinic,

            Tirupati Tirumala Family Health Care Pvt. Ltd.,

            D.No.19-9-29/2A, Tiruchanur Road,

            Sankarambadi Circle,

            Tirupati Urban Mandal,

            Chittoor District, A.P.                                                          …  Opposite parties.

 

 

 

 

            This complaint coming on before us for final hearing on 27.07.18 and upon perusing the complaint and other relevant material papers on record and on hearing Sri.Ch.M.S.Raju, counsel for complainant, and M.Subhashini, counsel for opposite parties, and having stood over till this day for consideration, this Forum makes the following:-

ORDER

DELIVERED BY SRI. T.ANAND, PRESIDENT (FAC)

ON BEHALF OF THE BENCH

           

            This complaint is filed under Section –12 of C.P.Act 1986, seeking direction to opposite parties to pay Rs.5,00,000/- towards compensation for the mental torture, agony, hardship, humiliation caused by false diagnosing and also to pass such other orders as deem fit and proper by the Forum.   

            2. The facts in brief are as follows:-  The complainant is a Scale-II officer working in Sapthagiri Grameena Bank. Opposite party No.1 is running clinic as franchise of Apollo Clinic and opposite party No.2 is its Administrative Officer. The complainant underwent master check-up in opposite party No.1 clinic at Tirupati on 25.12.2016 by paying Rs.2,500/- towards check-up charges on 25.12.2016 itself. He was shocked to go through the reports given by opposite party No.1, as he was tested positive to HBsAg (Hepatitis-B), which is a contagious disease and is very rare in India. On consulting the resident doctor of opposite party No.1 and on his advise the complainant underwent advanced test by spending an amount of Rs.7,850/-. He has advised strict diet as he was tested positive for Hepatitis-B and also medicines were prescribed to him. Further, he was told that Hepatitis-B is not a curable disease and proper food restrictions are to be followed. Further the resident doctor on duty suggested him to keep away from conjugal happiness with spouse, as sex is one of the reasons for acquiring Hepatitis-B disease. Further, the resident doctor went to the extent of suggesting all the family members to undergo master check-up and take vaccination. The complainant suffered mental agony due to the medical advice. He is suffering from diabetes and tested positive for triglycerides (cholesterol). On the advice of his friend and well wishers, the complainant opted to consult another doctor and underwent check-up once again specifically for Hepatitis-B at Madhu Diagnostics, Tirupati, and he was tested negative. Again on the advice of resident doctor of opposite party No.1, the complainant had check-up at Hitech Diagnostic Centre, Chennai, a ISO 900 Clinic:2008 certified organization on 06.04.2017. There also he was tested negative. Thus, he was wrongly diagnosed at the first instance, wrong report was given as if he was affected with Hepatitis-B and the same amounts to deficiency of service on the part of the opposite parties. The opposite parties failed to give proper explanation for giving wrong report. Hence, he caused legal notice to opposite party No.2 on 27.03.2017, and a copy of the same was sent to opposite party No.1 on 03.06.2017 calling upon them to pay Rs.5,00,000/- towards compensation for mental agony caused to him due to wrong diagnosis. Having acknowledged the notice, opposite parties failed to comply the same. Left with no option the complainant filed this complaint seeking directions as referred above.

            3.  Written version was filed by the opposite parties 1 and 2 denying the averments made in the complaint. It is stated that Apollo Health and Lifestyle Ltd., a subsidiary of Apollo Hospitals Enterprise Ltd, is one of the reputed institutions in the field of health care in India, and the said company runs chain of standardized primary health care models – multispecialty clinics under the brand Apollo Clinics offering facilities for specialist consultations, diagnostics, preventive health care checks etc. The opposite parties health care centre is a franchisee of Apollo Hospitals, the           1^st opposite party is Managing Director and 2^nd opposite party is Administrative Officer of the said patient care centre. It is admitted that complainant approached them on 25.12.2016 for availing health screening package (Executive Health Check-up Package) and the complainant underwent all the notified tests under the said package by paying requisite fee. The complainant was screened for Hepatitis-B virus by rapid test-card method using Aspen company’s HBsAg Rapid Test Cassette (Serum/Plasma) package insert a methodology which is accepted worldwide in the medical field as accurate screening tool for the detection of HBsAg. The complainant was tested positive for HBsAg and he was advised to go in for HBV DNA quantitative, which is an advanced prognosis indicator and for monitoring viral treatment and also for HBe AG –BB, PSA tests for which a sample was sent to Apollo Diagnostics Centre, Hyderabad, franchisor of opposite partiers clinic and registered with reference No.00011612270152, PCC code: PCL-TS-185. After receiving the report from Hyderabad indicating the viral load, the same was disclosed to the complainant and he was advised to consult gastroenterologist for further management by consultant doctor at opposite party’s clinic. It is denied that resident doctor Mary Sowmya has prescribed medicines to complainant and advised him to adhere to proper food restrictions. The complainant is called upon to prove the same. Likewise, the averment that consultant physician suggested the complainant that there is no effective treatment available for treating Hepatitis-B and it is not curable and to keep away from conjugal happiness with spouse due to the disease is false. Further, it is also denied that family members of complainant were also advised to undergo similar check-up and get vaccinated. It is denied that complainant had undergone mental agony and humiliation due to wrong advice of resident doctor of opposite parties 1 and 2. It is denied that the complainant opted to consult another doctor and underwent checkup once again for Hepatitis-B at Madhu Diagnostics, Tirupati, and was tested negative and that again the resident doctor of opposite parties advised the complainant to have checkup at Hitech Diagnostic Centre, Chennai, a ISO 900 Clinic:2008 certified organization on 06.04.2017 and there also he was tested negative. It is further denied that there is deficiency of service on the part of opposite parties 1 and 2 due to their gross negligence. It is admitted that complainant issued legal notice claiming Rs.5,00,000/- as compensation from opposite parties. But the allegations made in the legal notice are false. It is pertinent to note that the repeat test of HBsAg was done at Madhu Diagnostic one month after the clinic test done in the opposite parties clinic and it is quite possible that in the interregnum the viral infection getting reduced and resolved.  The HBsAg rapid test cassette will indicate the presence of HBsAg in the specimen and cannot be taken as sole criterion for diagnosis of Hepatitis-B viral infection and as with all diagnostic tests all results must be considered with other clinical information available to the physician. The complainant is not entitled for any relief sought for and therefore it is prayed to dismiss the complaint.

            4.  The complainant as PW-1 filed chief affidavit and got marked Exs.A1 to A11. On opposite party’s side RW-1 was examined and got marked Exs.B1 to B4.

            5.  The point for consideration is whether there is negligence on the part of opposite parties resulting in deficiency of service on their part in diagnosing the complainant being affected with Hepatitis-B virus? If so, to what extent the complainant is entitled for the reliefs sought for in the complaint?

            6. Point:- Original copy of Apollo Clinic report filed by the complainant dt:25.12.2016 is marked as Ex.A1. The cash bill for Rs.7,850/- issued by opposite party No.1 for lab tests is marked as Ex.A2. Original copy of test report issued by opposite party No.1 dt:30.12.2016 is marked as Ex.A3. Original copy of prescription given by resident doctor to complainant dt:25.12.2016 is marked as Ex.A4. Original copy of lab test bill issued by Madhu Diagnostics for Rs.150/- dt:26.01.2017 is marked as Ex.A5. Original copy of investigation report given by Madhu Diagnostics, Tirupati, dt:26.01.2017 is marked as Ex.A6. Original copy of bill / receipt issued by Hitech Diagnostic Centre, Chennai, dt:06.04.2017 is marked as Ex.A7. Photocopy of test report issued by Hitech Diagnostic Centre filed by the complainant dt:06.04.2017 is marked as Ex.A8. Photocopy of employee I.D.Card, issued by Sapthagiri Grameena Bank, Chittoor, in favour of complainant is marked as Ex.A9. Copy of legal notice issued by complainant dt:27.03.2017 is marked as Ex.A10. Original copy of HBsAg report issued by Amma Master Health Checkup Centre, Chennai, dt:23.12.2017 is marked as Ex.A11. As against these documents, the opposite parties have marked       4 documents namely Ex.B1 is ASPEN HBsAg rapid test cassette indicating positive status for the presence of HBsAg in the specimen belonging to the complainant. Ex.B2 is ASPEN HBsAg rapid test cassette literature in original. Ex.B3 is photocopy of medical literature filed by the opposite parties relating to Harrisons Principles of Internal Medicine – Acute Hepatitis-B virus (HBV) infection. Ex.B4 is medical literature filed by the opposite parties diagnosis of Hepatitis-B annals of translational medicine.

            7.  The counsel for opposite parties has relied upon the following citations in support of their contention that in the case of medical negligence entire burden is on the complainant to prove his / her case. In Anthony Raj and Anr. Vs. Sh. Thomas Hospital and Anr. dt:16.12.2005 – II(2006) CPJ 80 NC, rendered by National Commission, it is held that “In view of the aforementioned circumstances, I cannot but agree with the conclusion reached by the State Commission that the appellant complainants have failed to prove their case of medical negligence. In the latest judgment of the Hon’ble Supreme Court in the case of Dr.Jacob Mathew Vs. State of Punjab III (2005) CPJ 9 (SC) : III (2005) CCR 9(SC) : 122 (2005) DLT 83 (SC) : (2005) 6 SCC 208, it has been held that it is for the complainant to prove his case. It was held that in a case of medical negligence, it is enough for the defendant to show the standard of care and skill attained was of the ordinary competent medical practitioner exercising an ordinary degree of professional skill. In the instant case nothing has been brought on record that the doctor was not competent or did not possess the skill, resulting in the unfortunate end of her or did not do what ought to have been done or did what should not have been done. The case had to be proved by expert evidence, which was not done in this case”. In the decision reported in (2005) 6 SCC(1) between Jacob Mathew Vs. State of Punjab and Anr., it is held that “it must be shown that accused doctor did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do. It is the case of death due to administration of medicine of which knowledge not possessed by doctor, though professed”. It is held in that decision that it is necessary that death should have been the direct result of  rash and negligent act of accused, and that act must be proximate and efficient cause without the intervention of another’s negligence – It must be the causa causans – It is not enough that it may have been the causa sina qua non.

            8.  The fact that complainant had undergone medical checkup including Hepatitis-B test in opposite party clinic is not in dispute. It is also not in dispute that complainant was tested positive to HBsAg hepatitis virus. Ex.A5 is diagnostics report issued by Madhu Diagnostics, which shows that complainant tested negative for HBsAg test. Ex.A7 is bill issued by Hitech Diagnostic Centre, Chennai, for undergoing tests by complainant. Ex.A8 is the report given by Hitech Diagnostic Centre, Chennai, which shows that complainant tested negative for HBsAg. The complainant on the basis of documents contends that the first report issued by opposite party clinic stating that he tested positive for Hepatitis-B is not correct and it is wrong report in view of Exs.A5 and A8 and due to wrong diagnosing report issued by opposite party clinic, he suffered mental agony and also humiliation, as the resident doctor of opposite party No.1 advised him even to keep away from conjugal happiness with his spouse due to Hepatitis-B viral infection.

            9.  The literature pertaining to Hepatitis-B virus has been submitted by the opposite parties. As seen from the document Ex.A1 is dt:25.12.2016 and Ex.A5 Madhu Diagnostics report is dt:26.01.2017, there is a gap of one month between these two reports. Ex.A8 dt:06.04.2017 wherein complainant tested negative for HBsAg. Ex.A11 is also a report issued by Amma Master Health Checkup Centre, Chennai, dt:23.12.2017, and the result of the report shows that HBsAg – Negative by Rapid test. It is no doubt true that there are two contradictory reports pertaining to complainant, one showing positive to Hepatitis-B virus and the other showing negative to Hepatitis-B virus. Merely because there are two contradictory reports with regard to complainant’s health checkup, it cannot be said that first report which shows the complainant tested positive to Hepatitis-B viral infection is not correct and that there is deficiency of service on the part of Apollo Clinic, which are opposite parties 1and 2. Even in the literature of Hepatitis-B, it shows that there is possibility of disappearance of Hepatitis virus in the serum. The medical literature reveals that Hepatitis-B is a liver infection caused by Hepatitis-B virus (HBV). The complex antigen found on the surface of HBV is called HBsAg. The presence of HBsAg in serum or plasma is an indication of an active Hepatitis-B infection either acute or chronic. The other serological markers for HBV infection consist of anti-HBs, anti HBc IgM and Hepatitis-B e antigen (HBeAg) and anti-HBe. The identification of serological markers allows: to identify patients with HBV infection, to elucidate the natural course of chronic hepatitis-B (CHB), to assess the clinical phases of infection and to monitor antiviral therapy. After a person is infected with HBV, HBsAg is the first virological marker which appears within 1-12 weeks. In typical cases of acute Hepatitis-B virus infection, HBsAg becomes undetectable 1-2 months after onset of jaundice and rarely persists beyond 6 months. The likelihood of chronicity after acute hepatitis-B infection is only approximately 1% in young, adulthood and in immune competent persons. After HBsAg disappears, antibody to HBsAg (Anti-HBs) becomes detectable in serum and remains detectable indefinitely thereafter. In the literature appended to ASPEN rapid test kid it is specifically mentioned that “The HBsAg one step Hepatitis-B surface Antigen Test strip (Serum / Plasma) will only indicate the presence of HBsAg in the specimen and should not be used as sole criteria for the diagnosis of HBV infection and it should be correlated with other clinical symptoms. The complainant was screened for Hepatitis-B virus by rapid test card method using Aspen company’s HBsAg Rapid Test Cassette (Serum/Plasma) Package Insert, a methodology which is accepted worldwide in the medical field as accurate screening tool for the detection of HBsAg (Hepatitis B surface antigen).

            10. No doubt as per the first report complainant was tested positive for Hepatitis-B virus, whereas he was tested negative for the same in the subsequent reports. As already pointed out by us there is a gap of 1 to 3 months between first report and subsequent reports. As per the literature submitted by opposite party relating to Hepatitis-B virus, there is possibility of disappearance of HBsAg and therefore the complainant must have been tested negative for Hepatitis-B virus in the subsequent reports. Anyhow no evidence of any expert is produced before us to show that the first report is wrong when compared to subsequent reports. The sole evidence of PW-1 cannot be taken into consideration to hold that there is deficiency of service on the part of opposite parties in issuing report. On the basis of material on record and in view of the citations referred and literature submitted by the opposite parties, we hold that complainant failed to prove that there is deficiency of service on the part of the opposite parties and accordingly complaint is liable to be dismissed.

            11.  In the result, complaint is dismissed. No costs.                                                        

Dictated to the stenographer, transcribed and typed by him, corrected and pronounced by me in the Open Forum this the 10^th day of August, 2018.

 

       Sd/-                                                                                                                   Sd/-                                 

Lady Member                                                                                               President (FAC)

 

 

 

APPENDIX OF EVIDENCE

 

Witnesses Examined on behalf of Complainant/s.

 

PW-1: N. Karthikeyulu (Chief Affidavit filed).

 

Witnesses Examined on behalf of Opposite PartY/S.

 

RW-1: L. Nagaraju Naidu (Chief Affidavit filed).

 

EXHIBITS MARKED ON BEHALF OF THE COMPLAINANT/s

 

Exhibits (Ex.A)	Description of Documents
	Original copy of Apollo Clinic Report filed by the complainant. Dt: 25.12.16.
	Original copy of OP cash bill issued by 1st opposite party for Lab tests filed by the complainant for Rs.7, 850/-.
	Original copy of Test Report given by the 1st opposite party filed by the complainant. Dt: 30.12.2016.
	Original copy of prescription given by resident doctor filed on behalf of the complainant. Dt: 25.12.2016.
	Original copy of Lab Test bill issued by Madhu Diagnostics for Rs.150/-, Tirupati. Dt: 26.01.2017.
	Original copy of Investigation Report given by Madhu Diagnostics, Tirupati filed by the Complainant. Dt: 26.01.2017.
	Original copy of Bill/Receipt given by Hitech Diagnostic Centre, Chennai, Tamil Nadu. Dt: 06.04.2017.
	Photo copy of Test Report issued by Hitech Diagnostic Centre, Chennai filed by the complainant. Dt: 06.04.2017.
	Photo copy of Employee I.D. Card, S.R.No.1147, Saptagiri Grameena Bank, Chittoor filed by the complainant.
	Office copy of Legal Notice filed by the Complainant. Dt: 27.03.2017.
	Original copy of HBsAg Report issued by the Amma Master Health Checkup Centre, Chennai. Dt: 23.12.2017.

 

EXHIBITS MARKED ON BEHALF OF THE OPPOSITE PARTY/s

 

 

Exhibits (Ex.B)	Description of Documents
	ASPEN HBsAg Rapid test cassette indicating positive status for the presence of HBsAg in the specimen belonging to the complainant.
	ASPEN HBsAg Rapid Test Cassette Literature in Original.
	Photo copy of Medical Literature filed by the O.P’s Harrisons Principles of Internal Medicine – Acute Hepatitis B Virus (HBV) infection.

 

 

Medical Literature filed by the O.P’s Diagnosis of Hepatitis B Annals of Translational Medicine.

    

 

                                                                                                                        Sd/-    

                                                                                                                President (FAC)

    

      // TRUE COPY //

// BY ORDER //

 

Head Clerk/Sheristadar,

          Dist. Consumer Forum-II, Tirupati.

    

         

    

   Copies to:- 1.  The complainant.

                        2.  The opposite parties.