Delhi

West Delhi

CC/12/64

PUNITA BHATNAGAR - Complainant(s)

Versus

CARE DIAGNOSTICS & OTHER - Opp.Party(s)

03 May 2024

ORDER

                                         DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-III: WEST

GOVT. OF NCT OF DELHI

C-BLOCK, COMMUNITY CENTRE, PANKHA ROAD, JANAK PURI

NEW DELHI

 

COMPLAINT CASE NO 64/12

IN THE MATTER OF:

PUNITA BHATNAGAR

W/O SHRI ASHISH BHATNAGAR

R/O D-2A/138B, JANAKPURI,

NEW DELHI     ...COMPLAINANT

 

VERSUS

 

• CARE DIAGNOSITIC

D-1A/141A, JANAKPURI,

NEW DELHI – 110058

THOROUGH ITS DIRECTORS

 

• DR. RAJNEESH CHADHA

DIRECTOR OF CARE DIAGNOSITIC

D-1A/141A, JANAKPURI,

NEW DELHI – 110058

 

• DR. RACHNA CHADHA

MD/ CONSULTANT PATHALOGIST

CARE DIAGNOSITIC

D-1A/141A, JANAKPURI,

NEW DELHI – 110058              ...OPPOSITE PARTY/RESPONDENT

 

 

DATE OF INSTITUTION:    JUDGMENT RESERVED ON:           DATE OF DECISION:

30.01.2012 01.02.2024 02.05.2024.

QUORUM:

MS. SONICA MEHROTRA (PRESIDENT)

MS. RICHA JINDAL (MEMBER)

MR. ANIL KUMAR KOUSHAL (MEMBER)

 

ORDER PASSED BY MS. SONICA MEHROTRA (PRESIDENT)

 

 

ORDER

 

• Facts of the present complaint narrated by the complainant are that she was in her initial stage of pregnancy in 2011 and was under treatment at Mata Chanan Devi Hospital and was advised routine blood test including HIV and ultrasound by the gynaecologist under whom she was in treatment. The complainant approached OP 1 Lab run by OP 2 to 4 who claimed OP1 to be a very renowned Path ab which conducts tests as per evaluation of World Health Organisation. The complainant visited OP1 on 11.09.2011 for undergoing the required blood test and paid Rs. 2,070/- vide receipt/serial no. 39 to OPs. She then gave her blood samples for HIV Screening. To her utter shock and dismay, her blood report dated 11.09.2011 duly signed by OP3 showed her to be HIV (AIDS) Antibody I and II - Reactive and Sensitivity and Specificity of test both 100%. The report at the bottom mentioned Interpretation: “This is screening test of HIV (1 & 2 ) antibodies, a non reactive result indicates either the patient is not infected with HIV (1 & 2) or is in window period. However, in case of reactive for HIV (1 & 2) ask for confirmatory test for HIV like PCR for HIV or Western Blot for HIV”. The complainant suffered a shock on receiving such a report declaring her to be HIV Positive of antibody 1 and underwent mental agony and pain and fear that her husband might also be suffering from this communicable disease. She decided to undergo the same test from some other lab which results showed her to be HIV Non Reactive i.e. “Negative”. However, the complainant suffered an abortion on 25.09.2011 due to this trauma caused by negligence of the OPs for giving a wrong positive HIV report. The complainant, therefore, alleging deficiency of service and negligence on the part of OPs for having caused her and family immense loss, pain, agony and abortion of her child, and has filed the present complaint praying for relief by way of compensation of Rs. 19,50,000/- from OPs for giving such a wrong report along with litigation expenses of Rs. 50,000/-. The complainant has attached copy of Bills/Receipts, Report, Discharge Summary of Mata Chanan Devi Hospital dated 25.09.2011 for Inentable Abortion and Procedure of Dilatations and Suction Evacuation of foetus along with Bill Summary, Lab Test Report dated 17.09.2011 and 27.09.2011 from Star Imaging and Path Lab of HIV Test as Negative, Ultrasound Report dated 11.09.20211 from Star Imaging And Path Lab showing live foetus of Five Weeks Plus.

 

• Notice was issued to OPs on 30.01.12. OPs entered appearance in May, 2012 and filed joint Written Statement on letter head of OP1 lab urging in defence that the lab test got done by complainant on 11.09.2011 for HIV Screening was a HIV Tri-Dot Screening Test and it is not a confirmatory test as can be seen clearly mentioned in the lab report that in case of positive test, the report has to be confirmed by confirmatory test like PCR and Western Blot Test. The second test got done by Complainant from other lab is also a screening test on which report too it is clearly mentioned that positive test is not a diagnosis of AIDS and supplementary test should be done for confirmation. OPs relied upon literature of the test for HIV Screening pertaining to Guidelines and Manual on Quality Standard for HIV Testing Lab which clearly mention that All Samples detected “Reactive” must be confirmed by HIV Western Blot Test. OPs also relied upon Government of India, Ministry of Health and Family Welfare and World Health Organisation Guidelines in their defence. Lastly, OPs urged that the case be heard keeping in view of the limitation of Screening Test performed and that complainant never tried to call or visit OPs for a confirmatory test or in any other lab. OP have attached Guidelines on HIV Testing, Manual on Quality Standard for HIV Testing Lab Guidelines issued by Ministry of Health and Family Welfare, Government of India on HIV Screening Test and supplementary test in labs and HIV Assays; Operational Characteristic World Health Organisation along with HIV Tri-Dot Rapid Visual Test with Manual for qualitative detection of antibodies to HIV- I and HIV- II in human plasma -serum highlighting interpretation clause 15 (4) and limitation clause 16(4) and (5) for screening test to be followed by confirmatory test like Western Blot .
• Rejoinder in rebuttal to defence taken by OPs in their written statement was filed by complainant urging that she is a lay person in context of medical terms and was never communicated or informed by OPs that the test in question was a screening and not confirmatory test for HIV specially when its specificity and sensitivity was both 100% and the report was simply handed over to the complainant in a casual manner without any further information given. The complainant went under trauma on seeing HIV Positive result but on the contrary now OPs are urging that the test report was not absolute and suggesting that further test was required but complainant was never informed about it.  Complainant contended that if the test kit used was of a good quality as OPs have contended, then it should not have given a false “Positive” report and the direction on the kit for it to be used by highly skilled professionals was not followed by OPs and therefore wrong conclusions in test was shown. Lastly, complainant alleged that she was never advised for a confirmatory Western Blot Test by OPs. She therefore prayed for reliefs claimed.

 

• Evidence by way of affidavit was filed by complainant exhibiting documents filed/ relied upon as EX CW1/1 to CW 1/3.
• Additional Evidence by way of affidavit was filed by complainant placing reliance upon Guidelines issued by National AIDS Control Organisation, Govt. Of India and Aids Control Website of Government that counselling before and after HIV Test is important about the testing process and result to be given to person concerned privately by a clinician, nurse, mid level practitioner, counsillor or a skilled staff.  In post test counselling, if the test report is positive, the person concerned is advised Western Blot Confirmatory Test but no such procedure was followed by OPs or communication made with complainant in writing or telephonically. Complainant placed on record the General Pre Test and Post Test Guidelines as EX A-1.
• OP 4 was deleted in hearing held on 23.11.2013 on the basis of letter filed by OP4 that the test was conducted by OP 2 & 3 and application not opposed by the complainant. Amended memo of party was filed to that effect by the complainant.
• Evidence by way of affidavit was filed by OP2 as proprietor of OP1 exhibiting documents filed/relied upon as EW DW1/1 to DW1/4 deposing that his lab OP1 follows Standard Guidelines stipulated by World Health Organisation and Government of India for carrying such pathological test. HIV Tri-Dot test done on complainant is a kit based test which is a screening test for HIV and the kit used was manufactured by M/s Mitra and Company considered to be one of the top companies manufacturing HIV Tests Kits. The report dated 11.09.2011 clearly under the head of interpretation mentioned that this is a screening test not confirmatory and is a FIRST TIME ASSAY where if the patient if found positive, he or she is required to undergo confirmatory Western Blot Test for HIV. False “Positive” or “Reactive” HIV result may be due to several conditions as mentioned in “Guidelines for HIV testing” issued by NACO. OP2 further contended that had the complainant discussed the report in question with her doctor instead of diagnosing herself as HIV Positive, the doctor would have surely advised her to undergo the confirmatory test but instead of doing so, the complainant is blaming the OPs for suffering abortion on 25.09.2011 whereas she was already in the knowledge of her being HIV Negative on 17.09.2011 as per Star Imaging and Path Lab Report. OPs contended that she had a history of previous abortion which was concealed from this Forum but is apparent from her medical records issued by Mata Chanan Devi Hospital and OP2 urged in defence that the report in question did not cast any undue pressure upon the complainant to succumb to aborting the child or any complication in pregnancy. OPs defended themselves as not being deficient or negligent in services rendered to complainant.
• Written Arguments were filed by all parties reiterating their respective grievance/defence.
• Pleadings was completed by 2016 and arguments was part heard by previous Bench(es) between 2016 to 2018 and the case was reserved for orders on 08.05.2019 but no order was passed  till 2020, post which period due to Worldwide Outbreak of Corona Virus Pandemic, Court proceedings came to an abrupt halt for almost two years and in this intervening period the erstwhile Bench also demitted office. On the present Bench taking over November 2021 onwards, notices were issues to OPs in hearing held on 10.05.2022 and OPs appeared on 11.09.2023 and addressed arguments partly on 12.12.2023 when complainant was not present. Complainant, in fact, failed to appear after her last appearance made in January, 2023 and in hearing held on 31.01.2024, OPs counsel filed judgment compilation and matter was posted for concluding arguments for 02.05.2024 and was reserved for order under Section 38 (3) (C) of Consumer Protection Act.

 

• We have heard the arguments and perused the documentary evidence placed before us. It is not in dispute that the complainant had indeed undergone HIV Blood Test at OP1 lab on 11.09.2011 and was declared HIV 1 reactive. However, the fact cannot be lost sight the complainant in her own complaint in para 10 thereof has also mentioned the Interpretation on the report which clearly shows that the report is a screening test for HIV and in case of reactive, a confirmatory test for HIV like PCR or Western Blot Test has to be followed up. The OP has also taken the similar defence on the interpretation on the screening test report to be followed up by a confirmatory Western Blot Test in case of report of HIV Reactive. Hon’ble NCDRC in Susheel Kumar Vs. Dr. Virendra Mahala (2007) III CPJ 394 (NC) held in a case of HIV Positive Report that a patient is advised Western Blot Confirmatory Test but since the same was not done by complainant no deficiency of service of OP. The complainant, in our considered view, is trying to take advantage of her own act of ignorance and/or omissions and cannot be allowed to indulge in such an act for claiming unlawful monetary claim by misusing the process of law. We therefore find the complaint completely devoid of merit. We accordingly without any cause of action against OPs for allegedly negligence or deficiency of service, dismiss the same with no order as to costs.
• Let a copy of this order be given to each party free of cost after receiving the application for the certified copy as per the direction received from the Hon’ble State Commission.
• File be consigned to record room. Announced on 02.05.2024.

 

 

Richa Jindal                      Anil Kumar Koushal              Sonica Mehrotra

member                                 member                                 president