C.F. CASE No. : CC/11/30
COMPLAINANT : Shib Nath Mukherjee
S/o Murari Mohan Mukherjee
Of Ajad Hind Sarak,
P.O. Ghurni,
P.S. Kotwali, Dist. Nadia
OPPOSITE PARTIES/OPs: 1) Tropical Pathology
of 18/3, J.N. Roy Bahadur Road,
Malipara, P.O. Krishnagar
P.S. Kotwali, Dist. Nadia
2) Subhankar Das (Technical)
Tropical Pathology
3) Dr. S. Sarkar (Consultant M.O.)
Tropical Pathology
4) Dr. R. Chakraborty (Pathologist)
Tropical Pathology
All of 18/3, J.N. Roy Bahadur Road,
Malipara, P.O. Krishnagar,
P.S. Kotwali, Dist. Nadia
5) Dr. Uday Kumar Ghosh
Central Pathology
Central Nursing Home Campus
104, B.L. Chatterjee Road,
P.O. Krishnagar, P.S. Kotwali,
Dist. Nadia
- Dr. Sunanda Dey, (Micro-Biologist)
Super Relicare Labrotaries Ltd.
Midland Park Building, A.N. Block
Sector – 5, Salt Lake Bye Pass Road,
Kolkata – 700 102.
- Seba Health Care (Collection Agent
of Ralicare)
17, Ananta Hari Mitra Road,
P.O. Krishnagar, P.S. Kotwali,
Dist. Nadia
PRESENT : SHRI KANAILAL CHAKRABORTY PRESIDENT
: SMT SHIBANI BHATTACHARYA MEMBER
: SHRI SHYAMLAL SUKUL MEMBER
DATE OF DELIVERY
OF JUDGMENT : 22nd July, 2011
: J U D G M E N T :
In brief, the case of the complainant is that on 10.02.11 his wife was attacked with fever who was examined by Dr. Prabir Saha and again on 17.02.11 Dr. Saha examined her and advised pathological test including widal test of typhoid and antigen for malaria. Accordingly on 18.02.11 her blood and urine were taken and examined by the pathological centre of the OP No. 1. From the widal test for typhoid and in the report it was found as positive on 18.02.11. Considering the patient’s condition, Dr. Prabir Saha advised for blood test by another pathological centre and accordingly the blood of the patient was examined by OP No. 5, i.e., Central Pathology on 20.02.11 and the report of the typhoid found as negative. Being confused the doctor advised for test of typhoid by another pathological centre and accordingly it was done from OP No. 6 and as per report of the OP No. 6 dtd. 23.02.11, the result of typhoid found negative. The complainant submits that during the period from 18.02.11 to 23.02.11, Dr. Prabir Saha didn’t apply any medicine considering the confused report of the OP No. 1 and the other two reports also. The petitioner paid Rs. 430/- for examination to the OP No. 1 and Rs. 5,000/- to other pathological centres as well as doctor only for the reason to be clear about the confusing report given by the OP No. 1 to 4. This activity of the OP No. 1 & 4 is a gross negligence on their part which caused monetary loss and harassment to the complainant. So this case is filed by him praying for reliefs as stated in the petition of complaint.
OP No. 1 & 4 have filed a joint written version in this case, inter alia, stating that the case is not maintainable in its present form and nature. It is their submission that they had done a pathological test namely widal which is a blood test over the blood of the patient Konika Mukherjee on 18.02.11 and the widal test report was positive. This pathological test report is suggestive and not diagnostic. The positive result should be further confirmed by widal tube test and other investigation i.e., blood, culture stool culture etc. The OPs only made widal test which they performed sincerely. In this case after two days from their examination the patient again went for another widal test and that test result was negative. It is clear that the patient was on medication on those 2 days due to which 2nd widal test report was negative. So the OP has no negligence in examination of widal test of the patient. Therefore, the complainant has no cause of action to file this case and the same is liable to be dismissed.
OP No. 5 has contested this case by filing a written version, inter alia, stating that the complainant has no cause of action to file this case. It is his submission that he had done a pathological test namely widal over the blood of the patient Konika Mukherjee on 20.02.11 and the widal test result was negative. He also submits that the pathological test report is suggestive only and not diagnostic and the positive result should be further confirmed by widal tube test and other investigation, i.e., blood culture, stool culture etc. As per medical jurisprudence to make widal test confirm it needs repetition after a few days which was not at all done in this case. This OP has no inaction or negligence in this case. So the case is liable to be dismissed against him.
POINTS FOR DECISION
Point No.1: Has the complainant any cause of action to file this case?
Point No.2: Is the complainant entitled to get the reliefs as prayed for?
DECISION WITH REASONS
Both the points are taken up together for discussion as they are interrelated and for the sake of convenience.
On a careful perusal of the petition of complaint and the written versions filed by the OPs along with the annexed documents filed by the parties and also after hearing the arguments advanced by the ld. lawyers for the parties it is available on record that as per advice of Dr. Prabir Saha, the blood of the complainant’s wife one Konika Mukherjee was taken by the OP No. 1 for widal test of typhoid. Accordingly, it was examined and the report was as positive on 18.02.11. Thereafter, as per advice of Dr. Saha the blood of Konika Mukherjee was again tested by another pathological centre, viz., Central Pathology (OP No. 5) on 20.02.11 and the report of typhoid was found as negative. In spite of that, it was again examined by the OP No. 6 whose report was also negative. It is the complainant’s specific contention that due to negligence of the OP No. 1 to 4 test report of blood of his wife Kanika Mukherjee was positive, though she was not suffering from typhoid. Now the question is whether the OP No. 1 to 4 were negligent in issuing such a report as positive at the widal test for typhoid of the patient. There is no denial on the side of the OP No. 1 to 4 regarding the test report as positive, but it is their contention that the widal examination report is suggestive and not diagnostic. But the fact is after widal test of the blood of the patient OP No. 1 to 4 submitted the report as positive regarding typhoid of the patient. From the report it is also available that ‘S. Typhi – O’ was found as positive in that test and accordingly the result of test in the report was written as positive. But after 2 days the report given by the OP No. 5 & 6 respectively was negative after widal test. The OP No. 5 also stated in the written version that widal report is suggestive and not diagnostic. On the side of the OP No. 1 Hand Book of Micro Biology is referred from which it is available that nonspecific antigens like fimbrial antigens if present in test suspensions can give a false positive result. But in the report given by the OP No. 1 & 4 there is no whisper that nonspecific antigens was found in the blood of the patient at the time of test. On the other hand, in the written version it is stated by them that the OPs were asked for widal test only by the prescribing doctor and they accordingly did their job carefully and with much sincerity. From the prescription issued by Dr. Prabir Saha in favour of the patient it is available that during that period no medicine like Chloramphenica was prescribed for the patient or no document is filed by the OPs that the patient used that drug also.
Therefore, on a careful examination of the test report conducted by the OP No. 1 to 4 along with the test reports of OP No. 5 & 6 our considered view is that the OP No. 1 to 4 were very much negligent in conducting the widal test of the blood of the patient Kanika Mukherjee, due to which the result of the test report was given by them as positive. They were not at all careful in conducting the widal test of the blood of the patient. We do also hold that as the complainant has become able to prove the negligence of the OP No. 1 to 4, so he is entitled to get the relief as prayed for. In result the case succeeds.
Hence,
Ordered,
That the case, CC/11/30 be and the same is decreed on contest against the OPs. The complainant is entitled to get Rs. 5,430/- which is spent for the blood test of his wife including doctor’s fees along with Rs. 3,000/- as compensation plus Rs. 1,000/- as litigation cost, i.e., in total Rs. 9,430/-. OP No. 1 to 4 are jointly and severally directed to make payment of the decretal dues to the complainant within a period of one month since this date of passing this judgment, in default, the decretal amount will carry interest @10% per annum since this date till the date of realization of the full amount. We make no order against the OP No. 5 & 6.
Let a copy of this judgment be delivered to the parties free of cost.
