By Jayasree Kallat, Member;
Complaint was filed on 16.02.2005. The complainant was a patient suffering from Hernia. He had to undergo surgery as advised by Dr. T. Balan, the surgery was fixed on 26-8-2004. The complainant had to take blood test before surgery. The complainant approached first opposite party to conduct blood test. First opposite party issued blood test report which showed that the complainant was having HBS Ag +ve. On seeing the blood result the operation was postponed by the Doctor. Another blood test was taken immediately which also showed the same result. Thereafter as suggested by the Doctor the complainant had done the blood test on 31-8-2004 from St. Mary’s Clinical Laboratory, on 2-9-2004 from Vindhya Clinical Laboratory and on 3-9-2004 from Doctors Diagonistic and Research Centre. The tests from all these labs report the result as HBS Ag -ve. The complainant was advised to take ELISA TEST ON 3-9-2004 complainant had done the above mentioned test from Microbiology Centre, Kozhikode. The result of the Elisa test was negative. Because of the faulty result given by the opposite party the surgery to be conducted upon the complainant was postponed. The complainant could undergo surgery only on 11-9-2004. The complainant has undergone much stress and strain because of the wrong blood test report given by 1st opposite party. Complainant had to spend time and money unnecessarily. The complainant’s family also had suffered mental agony. Because of the negligence of the first opposite party the complainant could not report on his duty at Jiddah on 15-9-2004. Hence complainant had filed this petition seeking compensation.
Opposite party-1 filed a version denying the averments in the complaint except those that are expressly admitted. O.P.1 admits that the complainant had approached on 26-8-2004 to conduct blood test. Opposite party-1 conducted the blood test and gave the report to the complainant. The test report was HBS Ag +ve. It is not correct to say that the complainant’s surgery was postponed due to the negligence of the opposite party. O.P.1 denies that the complainant could not attend for duty on 15-9-2004 because of the deficiency of 1st O.P. The complainant has not produced any proof to show that he is working in Jiddah. The 1st opposite party did not give any wrong result to the complainant. The test for HBS Ag is done by using a card. It is a screening test. The first opposite party had purchased these cards from Rapha I.T. Diagnostic in Maharashra. The cards were purchased from the agent or dealer M.V. Diagnostics. The cards were manufactured by Rapha I T Diagnostic in Maharashtra. When the first opposite party found that the blood test conducted on the complainant showed positive result for HBS Ag, they had again conducted blood test using the cards of the same company on complainant’s wife as well. The result was negative. After that the complainant had taken blood test from St. Mary’s Clinic and Vidhya Laboratory. The results from these institutions were negative. In the circumstance O,.P.1 had again taken the blood test of the complainant in his presence using 5 cards of O.P.2 company. The test again showed positive result. O.P.1 had taken initiative and sent the complainant to Micro Biology Centre and D.D.R.C. Trivandum for blood test confirmation. ELISA method of blood test was conducted and both the test results were negative. First O.P. had also taken pains to conduct the blood test of the complainant using the card of another company. The blood test showed negative result. O.P.1 had spent money and conducted test for the complainant. There was no deficiency on the part of O.P.1. O.P.1 had used the card of O.P.3 manufactured by O.P.2. Hence if at all anyone is liable to pay any amount to the complainant it is not O.P.1 but O.P.2 and 3 are liable.
O.P.2 filed version denying the averments in the complaint except those that are expressly admitted. The complaint is filed with an ulterior motive to derive undue monetary advantage. It is pertinent to state that in the medical field a rapid test is done only for the purpose of screening and it is not at all considered as a confirmatory test. The rapid test should be confirmed by the ELISA test. The allegation of the complainant that because of the blood test result his surgery was postponed is not true. If his test had shown HBS Ag +ve then he would have been advised to undergo the ELISA test for confirmation. The complainant had got his blood tested in three different labs. On 21-8-2004, 2-9-2004 and again on 3-9-2004 all of which showed that he was HBS Ag negative. After these three tests ELISA test was conducted. In the normal course if the rapid test showed positive result the same has to be confirmed with the ELISA test. Thus the complainant should have gone for the ELISA test immediately after his first test result. The ELISA test result is available within a maximum period of 2 hours . The statement of the complainant that the surgery was postponed and hence he could not attend the duty on time in Jiddah is not true. The allegation regarding mental stress and strain caused to the complainant and his family for attaining a correct blood report is baseless and is put forward with the intention of claiming compensation. O.P.2 is involved in the marketing of the kits used for doing the rapid test. The pack insert literature provided by O.P.2 does not mention that the rapid test is a confirmative test. Such test have to be followed by confirming test like ELISA . O.P.2 is not liable to pay any amount to the complainant because there was no negligence or deficiency on the part of O.P.2.
O.P.3 the supplemental O.P.also filed version on lines of O.P.2. O.P.3 submitted that they are only the authorized dealer of O.P.2. O.P.3 had never given any assurance regarding the quality of the products of O.P.2. The HBS Ag negative rapid test is only a screening test and not a confirmatory test. All doctors and laboratories who place orders for this device know that rapid test is only a screening test. The test result depends upon several other factors. O.P.3 is not liable to pay any amount to the complainant. There is no deficiency in service or fault from the side of O.P.3.
Point for consideration is whether the complainant is entitled for any relief?
Complainant was examined as PW1 and Exts. A1 to A10 were marked on complainant’s side. 1stO.P. was examined as RW1 and Ext.B1 marked on O.P.’s side.
The case of the complainant is that he had approached first opposite party for blood test prior to a surgery. The blood test report given by the opposite party-1 showed HBS Ag +ve. The complainant has produced the result before the Forum and marked the same as Ext.A2. As the blood result showed +ve the complainant had to suffer many hardships. The surgery to be conducted upon the complainant was postponed. The complainant had done blood test on 31-8-2004 from St. Mary’s Clinical Lab, on 2-9-2004 from Vindhya Clinical Lab, Kozhikode and also on 3-9-2004 from Doctors Diagnostic Research Centre. All the reports showed that the complainant was HBS Ag negative. Complainant had taken ELISA Test also. The result of the test was negative. Complainant is alleging deficiency on the part of first opposite party for giving wrong blood result which had caused too much trouble for himself and his family. The first opposite party has taken the contention that there was no negligence on the part of the first opposite party. First opposite party has conducted the test by using card manufactured by 2nd opposite party. According to the first opposite party if at all any deficiency occurred it is due to the deficiency in the card and not because of the negligence of first opposite party. The manufacturer, second opposite party has taken the contention that the complainant is referring to the rapid blood test done by the first opposite party lab. In the medical field a rapid test is done only for the purpose of screening and it is not at all considered as confirmatory test. The rapid test should be confirmed by the ELISA test. If the blood test of the complainant had shown HBS Ag +ve then he should have undergone ELISA test for confirmation. Instead of that he had taken several blood test from different laboratories which showed the result as HBS Ag negative. Opposite paprty-1 and 2 has taken the contention that there was no negligence on their part. When the blood test showed HBS Ag positive then and there the complainant should have taken further steps consulting a Doctor immediately. The complainant himself had delayed in taking the confirmatory ELISA test. Any way the complainant had conducted ELISA test on 3-9-2004 which showed that the test result was negative. After that surgery was done on 11-9-2004 and the complainant was discharged on 17-9-2004. Going through the facts of the case and looking into different aspects brought out by the complainant and opposite parties the Forum cannot find any deficiency on the part of the opposite parties. Hence we are of the opinion that the complainant is not entitled for any relief.
In the result the petition is liable to be dismissed.
Pronounced in the open court this the 3rd day of March 2011.
Date of filing:16.02.05.
SD/-PRESIDENT SD/-MEMBER SD/-MEMBER
APPENDIX
Documents exhibited for the complainant:
A1. Power of Attorney exdcuted by Abdul Basheer infavour of Abdullakutty Haji dtd.
08.12.04.
A2. Report of Blood test issued by OP dtd. 26.08.04.
A3. Report of Hemogram issued by OP dtd.30.08.04.
A4.Report of blood test issued by St.Marry’s clinic at Laboratory dtd.31.08.04.
A5. Report of blood test issued by Doctor’s Diagnostic and research centre, Calicut
dtd. 04.09.04.
A6. Report of blood test issued by Microbiology centre dtd. 03.09.04
A7. Report of blood test issued by Vindhya clinical labouratory, Calicut dtd.02.09.04.
A8. Discharge card issued from Govt. GeneralHospital Calicut dtd.10.09.04.
A9. Copy of lawyer notice issued to the OP by the complainant with postal receipt and
Acknowledgement card dt. 25.09.04.
A10. Reply of lawyer notice issued by the respondent to the complainant dtd. 01.10.04.
Documents exhibited for the opposite party
B1. ELISA Test Result dt. 4-9-04.
Witness examined for the complainant:
PW1.Abdullakutty(Complainant)
Witness examined for the opposite party:
RW1. Sethumadhavan, Sudharma Laboratory, Oppo.Beach hospital
Sd/-President
//True copy//
(Forwarded/By Order)
SENIOR SUPERINTENDENT
