Delhi

East Delhi

CC/708/2015

ANKIT TYAGI - Complainant(s)

Versus

YOSHODA SUPERSPECILITY HOSPITAL - Opp.Party(s)

01 May 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM (EAST)

GOVT. OF NCT OF DELHI

CONVENIENT SHOPPING CENTRE, FIRST FLOOR,

SAINI ENCLAVE, DELHI – 110 092

 

 

C.C. NO. 708/15

 

Shri Ankit Tyagi

S.o Shri Mahaveer Singh

R/o V.P.O. Makan Pur, Indirapuram

Ghaziabad, UP                                                            ….Complainant

 

Vs.    

 

1. Yashoda Super Specialty Hospital

H-1, Kaushambi, Near Dabur Chowk

Ghaziabad, UP

 

2. Dr. Ram Manohar Lohia Hospital

New Delhi                                                                       …Opponents

 

Date of Institution: 15.09.2015

Judgement Reserved on: 01.05.2018

Judgement Passed on: 08.05.2018

 

CORUM:

Sh. Sukhdev Singh (President)

Dr. P.N. Tiwari (Member)

Ms. Harpreet Kaur Charya (Member)

 

Order By: Sh. Sukhdev Singh (President)

 

JUDGEMENT

            This complaint has been filed by Shri Ankit Tyagi against Yashoda Super Specialty Hospital (OP-1), Dr. Ram Manohar Lohia Hospital (OP-2) and Jaypee Hospital (OP-3) under Section 12 of the Consumer Protection Act, 1986 with allegations of unfair trade practice and deficiency in service. 

2.         The facts in brief are that complainant Mr. Ankit Tyagi was admitted in Yashoda Super Specialty Hospital (OP-1) on 05.06.2015 for cough and fever.  Yashoda Super Specialty Hospital (OP-1) conducted an HIV test which was shown to the complainant being HIV positive.  The complainant was under depression when he saw the report.  His family was also under depression.  The complainant and his family members visited Dr. Ram Manohar Lohia Hospital (OP-2) who conducted HIV test.  The complainant was surprised when he saw the report as negative.  He again have an HIV test at Jaypee Hospital (OP-3) where the report was also negative.  The complainant immediately visited at Yashoda Super Specialty Hospital (OP-1) and told about the illegal report which could have harm the life of the complainant, however, they did not give any reply to the complainant. 

            He has further stated that the complainant took treatment in Meerut Neuropsychiatry and Headache Centre.  It has been stated that Yashoda Hospital have committed medical negligence.  Thus, the complainant have stated that there was deficiency on the part of respondent and have claimed an amount of Rs. 18,00,000/- as compensation for harassment, mental agony and pain and Rs. 50,000/- towards litigation charges.

 

3.         In the written statement, filed on behalf of Yashoda Super Specialty Hospital (OP-1), they have stated that there was no medical negligence on their part.  They have also taken plea in respect of jurisdiction.  The complainant was having ill intention of not paying the hospital bill, if not paid by the insurance company Vidal Health TPA Pvt. Ltd. 

            The complainant was admitted with complaints of cough with expectoration with fever since two days.  He was admitted in ICU and all relevant tests were done.  HIV I and II tests were screening tests.  The complainant was counseled by the consultant in-charge regarding the findings of the HIV report and the report was sent to ICTC, CMO office, Ghaziabad as per national guidelines.  He was also counseled for further evaluations at higher centre since facility for Western Blot or PCR was not available with them.  Complainant or his attendants were never put under depression.      

            They have further stated that complainant visited the hospital and threatened the staff, DMS, Medical Advisor of OP-1 of bad consequences if the payment made by him against his treatment was not refunded.  The complainant and his brother (Mr. Naveen Tyagi) were counseled about the findings of the lab report and further requirements of evaluation in the good faith of the patient.  The complainant was replied via emails on 18.06.2015 and 26.06.2015 after his first communication on 17.06.2015.  Thus, they have stated that there was no medical negligence on their part.

            In the reply, Dr. Ram Manohar Lohia Hospital (OP-2) have stated that they submitted the correct and bonafide test report and no deficiency in service was found against them. 

            Jaypee Hospital (OP-3) have stated in their reply that the complainant had not made any allegation of unfair trade practice and deficiency in service against them. 

 

4.         Rejoinder to the WS of Yashoda Super Specialty Hospital (OP-1) was filed by the complainant where the contents of the WS have been denied and has reaffirmed the averments of his complaint.

 

5.         The complainant has filed evidence by way of affidavit where he has examined himself.  He has narrated the facts which have been stated in the complaint.

            In defence, Yashoda Super Specialty Hospital (OP-1) have examined Dr. Sunil Dagar, who have also deposed on affidavit.  He has also narrated the facts which have been stated in the written statement. 

            Dr. Ram Manohar Lohia Hospital (OP-2) and Jaypee Hospital (OP-3) have not filed their evidence as they have prayed for deletion of their name from the array of parties. 

            The application of Jaypee Hospital (OP-3) was disposed of and they were deleted from array of parties. 

6.         We have heard Ld. Counsel for the parties and have perused the material placed on record.  Ld. Counsel for Yashoda Super Specialty Hospital (OP-1) have advanced two fold arguments.  Firstly, he has argued that this forum was not having jurisdiction as the complainant took the treatment in their hospital which was located at Ghaziabad.  Secondly, he has argued that there was no medical negligence on their part as the complainant was never diagnosed as HIV positive.  He was referred to higher centre for further evaluation and management.

            Ld. Counsel for Dr. Ram Manohar Lohia Hospital (OP-2) have argued that complainant have not shown any deficiency of service on their part.

            To appreciate the arguments of Ld. Counsel for the parties, a look has to be made to the testimony of complainant as well as evidence of     Dr. Sunil Dagar, GM Operations and Quality of Yashoda Hospital and the documents placed on record.  The first and foremost point which arises for consideration is in respect of territorial jurisdiction.  The arguments advanced on behalf of Yashoda Super Specialty Hospital (OP-1) have been that this forum was not having territorial jurisdiction as their hospital was at Ghaziabad where the complainant took the treatment. 

            If the testimony of the complainant is perused, it is noticed that initially complainant took the treatment at Yashoda Super Specialty Hospital (OP-1) and later on in order to get his report confirmed, he took the treatment from Dr. Ram Manohar Lohia Hospital (OP-2).  As per the report filed alongwith complaint, the fact that complainant have taken the treatment from Dr. Ram Manohar Lohia Hospital to get his earlier report confirmed, the cause of action has arisen in Delhi.  Though, the complainant should have invoked the jurisdiction under which Dr. Ram Manohar Lohia Hospital falls, but the fact that competency of the forum is not in question, therefore, this forum was having jurisdiction to entertain this complaint.  Thus, the argument advanced by counsel for Yashoda Super Specialty Hospital (OP-1) goes.

            Coming to the second leg of arguments, it has to be seen as to whether there was deficiency on the part of Yashoda Super Specialty Hospital (OP-1) or not.  From the complaint as well as the evidence, it has been noticed that complainant have not sought any relief against Dr. Ram Manohar Lohia Hospital (OP-2).  When the complainant have not sought any relief against Dr. Ram Manohar Lohia Hospital (OP-2) and the evidence also do not show any deficiency on their part, no liability can be fastened on Dr. Ram Manohar Lohia Hospital (OP-2).  Dr. Ram Manohar Lohia Hospital (OP-2) should have also been deleted from the array of parties at the initial stage itself, though, they moved separate application for their deletion alongwith their reply.

            When no liability can be fastened on Dr. Ram Manohar Lohia Hospital (OP-2), their only remains Yashoda Super Specialty Hospital (OP-1).  The main grievance of the complainant has been that Yashoda Super Specialty Hospital (OP-1) have given HIV positive report, whereas Dr. Ram Manohar Lohia Hospital (OP-2) as well as Jaypee Hospital (OP-3) have given the negative report.  In the presence of negative reports of Dr. Ram Manohar Lohia Hospital (OP-2) as well as Jaypee Hospital (OP-3), the question arises as to whether medical negligence can be attributed to Yashoda Super Specialty Hospital (OP-1) as well as there has been deficiency in service on their part? 

            To ascertain medical negligence or deficiency in service on the part of Yashoda Super Specialty Hospital (OP-1), the medical reports of all the three hospitals have to be considered.  During the course of proceedings, Dr. Ram Manohar Lohia Hospital was directed to place on record the method and guidelines for HIV test.  These guidelines have been placed on record by way of affidavit.  It has been stated in the affidavit:

“that the test the Delhi State AIDS Control Society (DSACS) provides 3 rapid kits to ICTC, RMLH for HIV testing.  These kits are labeled as 1^st, 2^nd, 3^rd abstracting kits.  All samples are tested using the first kit provided by DSACS.  If the sample is non-reactive in this test, the report is given as negative for HIV antibodies and no further testing is performed (1^st test). 

If the test is found to be reactive by the 1^st kit, then 2^nd and 3^rd kit are used and if sample is reactive by both these test, the report is given as positive i.e. to say that a positive report is given (2^nd and 3^rd test)”. 

            It has further been stated that on the basis of this test, a patient is declared to be HIV positive when the same blood sample was tested three times using kits with different antigens/principles provided by DSACS.  All the testing are conducted only after pre-test counseling and consent for patient for testing and reports are given after post test counseling by the counselors employed by DSACS in ICTC, RML Hospital. 

            Now the report of Yashoda Hospital (OP-1) has to be analyzed in the light of the guidelines provided by Dr. Ram Manohar Lohia Hospital in the affidavit.  If the report of Yashoda Hospital is perused, it is noticed that during the stay in the hospital, it conducted various tests and one of the test was Elisa for HIV (+).  In the lab report of HIV I, the result has been stated as 1.86IU/mL and reference has been given as <1.0 Non-Reactive and >/=1.0 Reactive.  Though, they have given the result as 1.86IU/mL which was reactive, but they have given the comments saying that it was only a screening test.  All samples detected reactive must be confirmed by using Western Blot or PCR.

            It has further been stated that the patient was advised to repeat the test with a new serum taken 2 weeks later.  It has further been stated that the result should be verified with a recognized confirmatory test.  They have further recommended that all results must be clinically correlated.  It has also been stated that rarely false negative or false positive reactions may occur.   This report has been given by Dr. Meenal Mehta, Consultant-Pathology. 

            Thus, from this repot, it is noticed that HIV test of complainant Ankit Kumar Tyagi was done which gave a result of 1.86IU/mL which was reactive and as per the standard 2^nd and 3^rd kit were also used to give the final report.  The complainant have not got the second and third test to confirm the report as HIV positive.  When the complainant himself have not got second and third test conducted, though, it was advised to repeat the test with a new serum taken after 2 weeks, it cannot be said that if the result has been given in the report as 1.86IU/mL being reactive, it was the final report given by Yashoda Hospital (OP-1).  Even they have stated so in their report that it was only a screening test.  The fact that complainant himself have not opted to have second and third test, the report given by Yashoda Hospital cannot be said to be a final report.

            Not only that, in the discharge summary the hospital have referred the patient to higher centre for further evaluation and management.  When they have referred the complainant to higher centre for further evaluation and management,  it cannot be said that their report was final which has caused mental pain and suffering to the complainant.  Thus, there was no negligence on the part of Yashoda Hospital.  When there was no negligence on the part of Yashoda Hospital (OP-1), the question of any deficiency does not arise.

            In view of the above, we are of the opinion that the complainant has failed to attribute any deficiency on the part of Yashoda Super Specialty Hospital (OP-1) as well as Dr. Ram Manohar Lohia Hospital (OP-2).  Hence, the present complaint deserves its dismissal and the same is dismissed.  There is no order as to cost.

          Copy of the order be supplied to the parties as per rules.

            File be consigned to Record Room.

 

 

(DR. P.N. TIWARI)                                              (HARPREET KAUR CHARYA)

       Member                                                                             Member    

 

            (SUKHDEV SINGH)

                   President