Order-24.
Date-27/07/2017.
Shri Kamal De, President.
This is an application u/s.12 of the C.P. Act, 1986.
Complainant’s case, in short, is that on 26-10-2014, the complainant had fallen down and got trauma on right wrist, right shoulder and right chest wall. The complainant for his treatment on 27-10-2014 was admitted in Desun Hospital & Heart Institute being the OP1. The complainant was examined by one doctor Dr. BiplabDolui. After thorough check up the said doctor of the said hospital suggested for x-ray of right shoulder AP/LAT, x-ray of Hand with Wrist AP/LAT, x-ray of Chest PA/LAT and ECG was also performed. The said doctor also suggested for blood examination. In such blood examination as per report given by the pathology department of the Desun Hospital the Hepatitis B Surface Antigen(HBsAG) was found non-reactive. Complainant further states that on evaluation fracture neck of humerus (right) with fracture metacarpal 4th 5th were found. After nephrological and medical clearances, acceptable glycaemic control PAC, the complainant was posted for ORIF+Bone grafting under GA on 30-10-2014. Since the complainant was found to be suffering from Anaemia after operation one unit of A-positive PRBC was transfused. After operation the condition of the complainant was quite stable and he was discharged on 05-11-2014. At the time of discharge the complainant was reportedly haemodynamically stable. The complainant was suggested for restful life at home till further advice. As per advice the complainant visited the said hospital for a routine check up on 12-11-2014. The concerned doctor of the said hospital checked up the complainant and suggested some medicines. The complainant was advised to lead a normal life. It is stated that after a few days the complainant was suffering from insomnia, weakness and his condition was gradually deteriorating. The complainant ultimately visited Narayana Multispecialty Hospital on 01-03-2015 where he consulted with Dr. Amit Dey and after thorough check up the complainant was advised/suggested for ultrasonography of whole abdomen and blood test for hepatitis. On examination of blood it was reported that the complainant is infected with Hepatitis B positive. From the report it appears that complainant got infected with Hepatitis B virus recently and it was at an embryonic stage. It is stated that Hepatitis B is an infectious disease and was due to gross medical negligence on the part of O.Ps.-1 to 4 who have transfused 1 unit of A-positive PRBC without examining the same free from any viral and infectious disease. The complainant was, thereafter, admitted in Narayana Multispecialty Hospital with a complaint of anorexia and weakness and after diagnosis it was found that complainant was suffering from Viral Hepatitis and Hepatitis B (IgM anti HBc+). However, he discharged from the said hospital on 11-03-2015 after treatment of 11 days. The complainant submits that he had to pay a sum of Rs.1,32,419/- in Desun Hospital and, thereafter, Rs.84,775/- in Narayan Multispecialty Hospital. It is alleged that the complainant got infected through transfusion of blood. It is also alleged that at pre-operation stage the blood of the complainant was examined but no infection of hepatitis virus was found in the blood of the complainant. However, after getting operation from the OP1 the complainant got infected with Hepatitis B Virus which was caused due to gross medical negligence on the part of the OPs and its concerned doctors who have transfused one unit of A positive PRBC without examining the same to be free from any viral and infectious disease. The complainant has alleged that she has been infected with a viral disease which is incurable and infectious one even after spending a huge amount during his stay at OP1 hospital. It is stated that complainant fallen in the category of untouchable person and has also suffered both physically and mentally and such suffering cannot be assessed in terms of money. The complainant has prayed for compensation of Rs.15,00,000/- along with other reliefs in terms of prayers in the complaint against the OPs 1 to 4.
OPs1 and 2 have contested the case in filing written version contending, inter alia, that the complaint is not maintainable in law and is liable to be dismissed. It is stated that the complainant has not made out any case of wrong treatment nor has he raised any grievance as to impropriety in the matter of surgery or the treatment provided to him as a whole including the medicine administered. It is also stated that the determination of question of medical negligence resulting in hepatitis B infection as alleged by the complainant involves scrutiny. Elaborate evidence including Expart’s evidence is not permissible in the present summary proceeding. It is stated that the hospital strictly observes the norms of infection control including the sterilization process.Surgical instrument are autoclaved through most modern and updated fully automatic periclave, autoclave machine in OP1 hospital. It is stated that complainant was admitted to OP1 Hospital on 28-10-2014 under OP2 Orthopaedic Surgeon and after successful surgery he was finally discharged in a haemeodynamically stable condition on 05-11-2014. OP1 states that he does not have its own blood bank and after necessary test requisition for blood was issued and against such requisition packed blood supply by Govt. recognized and licensed blood bank, though patient parties are always given opportunity to arrange blood directly from blood bank. Similarly, in the case of complainant packed blood having received from Health Point Multispecialty Hospital Blood Bank and upon checking of label pasted on the pouch blood container, conforming inter alia HBsAG.,negative it was transfused to him on 31-10-2014 during surgery. Moreover, apart from the complainant as many as four other patients underwent surgery on 30-10-2014 and none has complained of any infection till date. It is stated that the complaint contained various allegations which are false, incorrect and motivated. It is also stated that hepatitis B infection is not only caused due to infected blood transfusion or transmitted through faecal oral route only as alleged but such infection may also occur from various source and for different reasons and occurrences like blood contact with infected person using same needle once injected to a person having hepatitis B infection by using a shaving blade which was earlier used by someone else, by transmission of blood fluid from an infected person to another etc. It is denied that complainant was victimized due to medical negligence or wrong treatment. It is also denied that complainant got infected with hepatitis B virus due to gross negligence on the part of answering OPs and the doctors associated with the treatment of the complainant at OP1 hospital. These OPs have prayed for dismissal of the case.
OP5 has also contested the case in filing written version contending, inter alia, that the case is not maintainable against OP5. It is stated that the hospital of OP5 and / or OP6 diagnosed that the complainant was suffering from hepatitis B and, thereafter, treated and/or helped and / or assisted the complainant towards successful recovery. There is no allegation of negligence and/or deficiency of service against OP5 at any point of time. Moreover, complainant has made OP5 a proforma OP and no prayer for relief has been made against OP5. It is submitted that the complainant does not have or cannot have any cause of action and/or grievance against OP5. This OP has prayed for dismissal of the case against it.
OPs 3, 4 and 6 have not contested the case and the case has proceeded ex parte against them.
Point for Decision
- Whether the OPs are guilty of medical negligence?
- Whether the complainant was victimized with infection of Hepatitis B due to medical negligence or wrong treatment on the part of O.Ps.-1 to 4?
- Whether the complainant is entitled to get the relief as prayed for?
Decision with Reasons
We have browsed over the documents on record i.e. medical prescription of Desun Hospital, Xerox copy of pathological tests of different dates, Xerox copy of despatch summary of Desun Hospital, Xerox copy of prescription of OPD treatment at Barasat Hospital North 24 Parganas, Xerox copy of USG Report of Narayana Multispecialty Hospital, Xerox copy of blood report of Narayana Multispecialty on 01-03-2015 along with other reports, Xerox copy of final bill of OP5 Hospital and other materials on record.
The main allegation of the complainant against OPs 1 and 2 is that at pre-operation stage the complainant was free from HBsAG virus and after discharge the complainant got infected with HBsAG and the germ of HBsAG entered into the body of the complainant during the stay at OP1 hospital. It appears that the complainant was admitted at OP1 Hospital on 28-10-2014, HBsAG test was done on OP Hospital on 28-10-2014 and found non-reactive.Thedate of surgery at OP1 hospital is 30-10-2014 and date of blood transfusion on OP1 Hospital is also on self-same date and the complainant was discharged from OP1 hospital on 05-11-2014. The date of finding of HBsAG positive is on 01-03-2015 when the complainant was admitted at Narayana Super-specialty Hospital.
The complainant has filed the complaint alleging medical negligence against OP1 and OP2 being the doctor of OP1 alleging transfusion of infected blood resulting Hepatitis B infection.
The question is whether the infection of Hepatitis B virus was due to transfusion of infected blood by OP1 or not?We find that the complainant was not infected with Hepatitis B during his test of HBsAG at OP1 hospital and blood was transfused on 30-10-2014. It is argued from the side of the complainant that the blood which was transfused on 30-10-2014 was infected with Hepatitis B.
The question is whether it can conclusively be held that alleged infection of Hepatitis B was only due to blood transfusion in OP1 Hospital or not? The Evidence on Affidavit of Dr. SoumendraSen, Medical Superintendent as filed on behalf of the answering OPs is very important along with his evidence. He also produced the report of Blood Bank dated 29-10-2014 which confirms HBsAG (Eliza) non-reactive. The copy of certification fixed on the blood pack confirming that the blood was free from Hepatitis B is also produced. It is pertinent to mention here that the complainant’s son was not challenged or disputed the authenticity or genuineness of the blood report of the blood bank. So, it cannot be said conclusively or beyond any reasonable doubt that the transfusion of blood at OP1 hospital to the complainant is the only source or cause of his Hepatitis B infection.Though transfusion of infected blood is one of the causes of Hepatitis B infection but not the only source or cause of infection and the patient may be infected with Hepatitis B virus due to sharing of needle and syringe, razor blades, living with a person infected with Hepatitis B virus etc. We also find that the wife of the complainant was also infected with Hepatitis B and for which she also filed a case being No.CC.117 of 2016 before this Ld. Forum. Moreover, from the discharge summary of the complainant it appears that he is diabetic and was advised blood test through glucometer. He could not deny while replying to question No.12 that he and his wife both were infected with Hepatitis B and both were diabetic, so, possibility of infection through common needle apart from other reasons cannot be ruled out conclusively. Moreover, the complainant while replying to question No.5 admitted having pathological tests and medical check ups to ascertain blood sugar level and other medical conditions. It is also admitted by the complainant during cross-examination while replying to question No.3 that as per doctor’s advice on 04-12-2014 he had been to Dental Surgeon as after 04-12-2014. We find that the complainant was discharged from OP1 Hospital 15-11-2014 and date of finding HBsAG positive is 01-03-2015 while he was admitted at Narayana Multispecialty Hospital-it means sometime after almost 105 days from the date of transfusion of blood on OP1 hospital. We find that complainant also used to take insulin through pricking either by using glucometer or injecting insulin is admitted fact. We know as per medical science Hepatitis B virus can be transmitted through various sources including from living with an infected person, infected needle or can only be transmitted at the time of pricking in the body through glucometer. We also find that the wife of the complainant also uses glucometer at home and his wife is also infected by Hepatitis B virus for which his wife has also lodged a complaint before this Ld. Forum being C.C. Case No.117 of 2016.
It is a truism of Law that medical negligence cannot be presumed but it has to be established. So, there is no definite proof that the patient was infected with Hepatitis B virus during his stay at O.P.-1 Hospital. In this case there is no positive evidence or proof that infected blood was transfused to the complainant during his stay at O.P.-1 Hospital. The complainant has not been able to proof by any evidence that it is only transfusion of infected blood which causes hepatitis B. We also find that blood was supplied by a Govt. licensed Blood Bank. It is not also disputed that while supplying blood, certificate and of confirmation that hepatitis B inactive and non-reactive was given by blood bank and such certificate was produced as evidence and remains unchallenged. It is not the case that the blood bank has given incorrect certificate or blood bank who supplied blood was alleged to have been infected with Hepatitis B infection. Moreover, blood bank is not also made a party. The complainant also, has not chosen, not to call the blood bank in adjudication process. So, no rechecking of blood, so transfused cannot be said to be deficiency or medical negligence in the facts and circumstances in the instant case.
It has been argued from the side of the complainant that NAT (Neuclic Acid Test) was not performed on the blood that was transfused to the patient and such test is recommended by WHO but we find that such recommendation is specially for South Asia and African Countries. It is true NAT is a molecular technique for screening blood donations to reduce the risk of transfusion of transmitted infections (TTIS) in the recipients, thus providing an addition layer of blood safety. Incidentally it may be mentioned that there may be recommendations for conducting NAC but such test has been started in few centres in India but it is not mandatory screening tests and non performanceof NAC test is very much far-fetched to hold OP1 deficient in rendering service or liable for medical negligence. The complainant has not also made any whisper against the certification and report of the blood bank who supplied blood for transfusion. So, the blood bank is a necessary party and without impleading the blood bank it cannot be held conclusively whether the blood supplied was infected or not. The allegation as we find is based on presumption, conjecture and surmise without any conclusive proof. So, it cannot be said with confirmation that the complainant was infected with Hepatitis B during his stay at OP1 Hospital or infected blood was transfused to him. We think that complaint has been filed on surmise and conjecture without any expert opinion. It is a settled principle of law that onus is on the complainant to prove that blood transfused to him was infected which resulted in Hepatitis B. We think that complainant has miserably failed to discharge his onus.
OPs.-3,4 and 6 doctors did not appear before this Forum. OPs.-5 and 6 are the proforma OPs. The complaint doesnot disclose any specific allegation against the OPs.-3,4, 5 or 6.
In view of the above discussion and observation made in the earlier paragraphs we think that there is no definite proof before us to hold the OPs guilty of the charges and / or allegations of medical negligence as labelled against them.
In result, the case fails.
Hence,
Ordered
That the instant case be and the same is dismissed on contest against the OPs.1,2 and 5 and ex parte against the remaining OPs.
We make no order as to cost.
