Order No. 15 dt. 10/01/2020
The case of the complainant in brief is that the complainant got his blood tests including the test for HIV. The complainant underwent medical examination of his blood sample on 18/11/2017 at diagnostic centre of o.p. located at Ultadanga, Kolkata. In the medical test report dated 18/11/2017, the same was signed by consultant pathologist Dr. Sekhar Dutta. One of the reports of examination of blood pertaining to examination of serum for HIV declared the result as ‘reactive’, thereby meaning that the complainant had been diagnosed as HIV positive. After coming to know of the said fact the complainant became mentally shocked and he underwent further test after consulting another doctor Dr.A.K. Agarwal of Recovery Nursing Home to get a second opinion. Dr. S.K. Agarwal asked the complainant to again get extensive blood test including the Western Blot Test to confirm the presence of HIV virus, pursuant to which the complainant was handed over with the report of his blood tests, which clearly exhibited that the complainant was not infected with the deadly HIV virus. The complainant, thereafter, went to Mumbai and went for further tests for HIV at Sheth K C Parikh General Hospital at Vile Pirle in Mumbai on 04/12/2017. After such third test in Mumbai once again confirmed that the complainant was not affected with HIV positive. Because of such wrong report of o.p. the complainant suffered mental pain and agony and on the basis of the said fact the complainant filed this case praying for direction upon the o.p. for payment of compensation of Rs.12 Lakhs as well as litigation cost.
The o.p. contested the case by filing w/v and denied all the material allegations of the complaint. It was stated that Dr. Ghosh Charitable Trust is a philanthropic organization established for the benefit of poor and downtrodden people. The Trust has been organizing free medical camps every year in various parts of the State of Bengal as well as other parts of India. The object of the Trust is to provide free or low cost medical services to the needy people. The Trust also provides entire expenses of brain and spinal surgery for needy patients and have done so to numerous patients in the State of West Bengal. The Trust had established the pathological clinic and diagnostic centre at Ultadanga, Kolkata, known as Brain Diagnostic Centre. In order to provide services in the said clinic the Trust engages doctors of various fields who provide their services either free or by taking an honorioum from the Trust. It has been admitted by o.p. that the complainant undertook various blood tests on 18/11/2017 including blood test for detection of HIV. The HIV test was undertaken under the consultant pathologist Dr. Sekhar Dutta of the clinic. The test was detected under the supervision of Dr. Sekhar Dutta, but surprisingly even after knowing the name of the said doctor he has not been made a party in this case. It was further stated that the report was a typographical error on the part of the typist typing the report on laboratory sheet, the same was not mentioned, but in the record of the laboratory the result was ‘non reactive’ and Dr. Sekhar Dutta had signed on the laboratory sheet. It was the responsibility of said Dr. Dutta to correlate the record with typed report before signing the same, but it is due to his negligence and he has signed the wrong report. It is further to be noted that the test was a preliminary finding and in case of ‘reactive’ report the patient needs to follow up with further tests for confirmed detection. The complainant, thereafter, obtained the test reports from another clinic whereby the test reports were ‘non reactive’ and as such, the claim made by the complainant that the complainant had suffered mental agony and depression is totally false and concocted. On the basis of the said fact o.p. categorically stated that there is no negligence on the part of the o.p. and as such, the case is to be dismissed.
On the basis of the pleadings of parties the following points are to be decided:
- Whether the complainant underwent blood tests including HIV at the laboratory of o.p?
- Whether the complainant suffered any mental agony?
- Whether there was any deficiency in service on the part of o.p.?
- Whether the complainant will be entitled to get the relief as prayed for?
Decision with reasons:
All the points are taken up together for the sake of brevity and avoidance of repetition of facts.
Ld. lawyer for the complainant argued that the complainant got his blood tests including the test for HIV. The complainant underwent medical examination of his blood sample on 18/11/2017 at diagnostic centre of o.p. located at Ultadanga, Kolkata. In the medical test report dated 18/11/2017, the same was signed by consultant pathologist Dr. Sekhar Dutta. One of the reports of examination of blood pertaining to examination of serum for HIV declared the result as ‘reactive’, thereby meaning that the complainant had been diagnosed as HIV positive. After coming to know of the said fact the complainant became mentally shocked and he underwent further test after consulting another doctor Dr.A.K. Agarwal of Recovery Nursing Home to get a second opinion. Dr. S.K. Agarwal asked the complainant to again get extensive blood test including the Western Blot Test to confirm the presence of HIV virus, pursuant to which the complainant was handed over with the report of his blood tests, which clearly exhibited that the complainant was not infected with the deadly HIV virus. The complainant, thereafter, went to Mumbai and went for further tests for HIV at Sheth K C Parikh General Hospital at Vile Pirle in Mumbai on 04/12/2017. After such third test in Mumbai once again confirmed that the complainant was not affected with HIV positive. Because of such wrong report of o.p. the complainant suffered mental pain and agony and on the basis of the said fact the complainant filed this case praying for direction upon the o.p. for payment of compensation of Rs.12 Lakhs as well as litigation cost.
Ld. lawyer for the o.p. argued that Dr. Ghosh Charitable Trust is a philanthropic organization established for the benefit of poor and downtrodden people. The Trust has been organizing free medical camps every year in various parts of the State of Bengal as well as other parts of India. The object of the Trust is to provide free or low cost medical services to the needy people. The Trust also provides entire expenses of brain and spinal surgery for needy patients and have done so to numerous patients in the State of West Bengal. The Trust had established the pathological clinic and diagnostic centre at Ultadanga, Kolkata, known as Brain Diagnostic Centre. In order to provide services in the said clinic the Trust engages doctors of various fields who provide their services either free or by taking an honorioum from the Trust. It has been admitted by o.p. that the complainant undertook various blood tests on 18/11/2017 including blood test for detection of HIV. The HIV test was undertaken under the consultant pathologist Dr. Sekhar Dutta of the clinic. The test was detected under the supervision of Dr. Sekhar Dutta, but surprisingly even after knowing the name of the said doctor he has not been made a party in this case. It was further stated that the report was a typographical error on the part of the typist typing the report on laboratory sheet, the same was not mentioned, but in the record of the laboratory the result was ‘non reactive’ and Dr. Sekhar Dutta had signed on the laboratory sheet. It was the responsibility of said Dr. Dutta to correlate the record with typed report before signing the same, but it is due to his negligence and he has signed the wrong report. It is further to be noted that the test was a preliminary finding and in case of ‘reactive’ report the patient needs to follow up with further tests for confirmed detection. The complainant, thereafter, obtained the test reports from another clinic whereby the test reports were ‘non reactive’ and as such, the claim made by the complainant that the complainant had suffered mental agony and depression is totally false and concocted. On the basis of the said fact o.p. categorically stated that there is no negligence on the part of the o.p. and as such, the case is to be dismissed.
Considering the submissions of the respective parties it is an admitted fact that the complainant went to o.p. laboratory for undergoing blood tests including HIV test. The complainant had stated that after getting report on 18/11/2017 he came to learn that HIV test report was found ‘reactive’ i.e. the complainant was affected with HIV virus. After coming to know of the said fact the complainant became mentally perturbed and again he consulted another Dr. S.K. Agarwal and as per his advise the complainant underwent further tests and in the test report it was categorically stated that the result of the tests in respect of HIV1 and HIV2 was ‘non reactive’ and the said tests were done by Diagnostic Recovery Lab on 19/11/2017 i.e. one day after the tests done by o.p. The complainant has stated that he after going to Mumbai underwent another tests and it was found that he was not affected with HIV. The complainant, thereafter, got mental relief and started work. The complainant stated that he is a professional actor, for that he has claimed compensation of Rs.12 Lakhs. In order to show his income no income tax return has been filed by the complainant or the bank statement to justify his fabulous income for which he suffered during the said period. The o.p. during the argument highlighted the point that the doctor who examined the blood at the laboratory has not been made a party in this case and due to the latches on the part of the said doctor the typographical error committed in the report was also signed by the said doctor. The o.p. in spite of pointing out the defects of non including the doctor who examined the blood has not been made a party in this case, though the complainant got the opportunity to make him a party in this case. In the report it was categorically stated that in case of lack of correlation due to technical / typing error the laboratory should be immediately for rectification / review / re-sampling and re-testing etc., but the complainant did not take any of such measure for rectifying the report or to clear his doubt he did not consult the said laboratory centre further. In view of such back ground of the case since the complainant’s allegation of wrong reporting of the blood tests whereby HIV positive was mentioned in the report held on 18/11/2017 and on 19/11/2017 his doubt was cleared after examination further in Diagnostic Recovery Lab, therefore, we hold that the complainant suffered mental agony for only one day and he incurred the expenses for further tests amounting to Rs.3,100/-, thereby o.p. should compensate the complainant with the said amount towards the expenses incurred by the complainant as well as compensation for his mental agony and litigation cost. Thus all the points are disposed of accordingly.
Hence, Ordered,
That the CC No. 339 of 2018 is allowed on contest with cost against the o.p. The o.p. is directed to pay an amount of Rs.3,100/- (Rupees Three Thousand One Hundred) only to the complainant along with compensation of Rs.1,000/- (Rupees One Thousand) only for harassment and mental agony and litigation cost of Rs.1,000/- (Rupees One Thousand) only within 30 days from the date of communication of this order, i.d. an interest @ 8% p.a. shall accrue over the entire sum due to the credit of the complainant till full realization.
After receiving the awarded sum the complainant is directed to pay Rs.500/- (Rupees Five Hundred) only in favour of Consumer Welfare Fund, since the complainant failed to pay the cost which remained due during the pendency of the proceeding of the case.
