State Consumer Disputes Redressal Commission
Sri Saktipada Das vs M/S. Clinical Hematology Services on 25 August, 2009
State Consumer Disputes Redressal Commission State Consumer Disputes Redressal Commission West Bengal BHABANI BHAVAN (GROUND FLOOR) 31, BELVEDERE ROAD, ALIPORE KOLKATA 700 027 S.C. CASE NO. CC/08/47 DATE OF FILING: 08.9.2008 DATE OF FINAL ORDER: 25.08.2009 COMPLAINANT Sri Saktipada Das S/o Sri Padmalochan Das BE-28, Rabindra Pally Krishnapur, P.S. Rajarhat Kolkata 700 101 OPPOSITE PARTIES 1) M/s. Clinical Hematology Services 4, Gorkey Terrace P.S. Shakespeare Sarani Kolkata 700 017 2) Dr. Sarmila Chandra M/s. Clinical Hematology Services 4, Gorkey Terrace P.S. Shakespeare Sarani Kolkata 700 017 BEFORE : HONBLE JUSTICE MR. A. CHAKRABARTI, PRESIDENT MEMBER : MR. A.K. RAY MEMBER : MRS. S. MAJUMDER FOR THE COMPLAINANT : Mr. Siba Prasad Saha, Advocate FOR THE OPPOSITE PARTIES : Mr. Alok Mukhopadhyay, Advocate : O R D E R :
HONBLE JUSTICE MR. A. CHAKRABARTI, PRESIDENT Complainant filed this complain seeking relief of two counts of compensation each of Rs.5 lacs, treatment cost of Rs.36 lacs and cost of Rs.20,000/-. In brief, the case of the complainant is that he decided to marry at the age of 33 years in the year 2002. Marriage was negotiated one and after finalization of the marriage the complainant decided to undergo blood test for himself as also for the proposed wife to ascertain whether both of them were medically fit to get married and whether any child born out of their wedlock would have any possibility of Thalassaemia.
Blood test was done of both and the test reports showed that complainant was consistent with normal pattern but the proposed wife is a carrier of Thalassaemia. The first report was signed by OP2. The complainant consulted doctors and was told that if both are not carrier of Thalassaemia, the child born will not suffer from Thalassaemia though sometime child may be a carrier of Thalassaemia. On such advice the complainant married on 05.6.2002 and a female child was born on 03.7.06. As weight and physical growth of the child was not proportionate and normal the complainant consulted with a Pediatric Physician on 13.12.06 and according to the advice of the doctor some blood tests of the child were done from a reputed clinic. Thalassaemia test was actually conducted by OP1 and in the report the child was diagnosed as Haemoglobin E-beta Thalassaemia. In order to ascertain actual reason of such sickness of their daughter as per advise of the doctor the complainant and his wife got their blood tested from NRS Medical College and Hospital on 26.12.2006 and according to the said report both complainant and his wife were found carrier of Thalassaemia.
The complainant being confused tested his blood again from OP1 on 27.12.06 and in the report of the said test the complainant was found Beta Thalassaemia carrier. The complainant and the members of the family are suffering seriously by reason of the said disease of the child and huge expense is also being undertaken for treatment of the child accordingly. Ultimately the complaint was filed claiming compensation, treatment cost and litigation cost.
After the written version was filed by the OP2 and evidence recorded followed by questionnaire and reply in respect of witnesses of the complainant and the OP2, the matter was taken up for final hearing.
The contention of the Ld. Advocate for the complainant is that the report dated 09.5.2002 by OP1 in respect of the petitioner before his marriage shows the remark Hb. Electrophoresis is consistent with normal pattern. The report dated 27.12.06 in respect of the petitioner by OP1 records the comments beta Thalassaemia carrier state. It is argued that these documents show conclusively that the OP1 after first testing the blood of the petitioner came to a conclusion that he is neither a Thalassaemia patient nor a carrier. But after the child was born and was diagnosed as Thalassaemia patient, when the petitioner got his blood tested again initially by another clinic and, thereafter, directly by the OP1, the report came showing that the petitioner is a Thalassaemia carrier. In such circumstances the petitioner suffer because of the wrong testing report by the OP1 as such testing apparently was done before the marriage of the petitioner for ascertaining the health position. As the report was that the petitioner was not a carrier of Thalassaemia nor a Thalassaemia patient, he could marry the lady though she was diagnosed as Thalassaemia carrier. Therefore, it is argued by the petitioner that such wrong report caused not only mental agony by reason of the disease of the child of the petitioner but also by reason of the excessive cost in treating the child.
Mr. Alok Mukhopadhyay, the Ld. Advocate for the OPs argued that the method applied in the test done by the clinic has to be first ascertained and without disclosure of such method the findings recorded in the report cannot indicate anything. It is further argued that such reports are never full proof and, therefore, the contention of the petitioner that he married only on the basis of the findings in the report, is not tenable.
After considering the above contentions from the materials on record we find that the petitioner has made out a case that only because he was tested negative in Thalassaemia test, he could marry the lady who was found Thalassaemia carrier before marriage. As the medical science says that child born in a wedlock between a Thalassaemia carrier and a free person need not be a Thalassaemia patient or carrier though marriage between two Thalassaemia carriers compulsorily has to result the child to be Thalassaemia patient.
On behalf of the complainant reference has been made to Williams Hematology, edited by Lichtman M.A. et. al., 7th edition, McGraw-Hill Medical, 2006. In respect of incidence of Thalassaemia, it has been noticed as follows:
The goal of prevention can be achieved in two ways.
The first is prospective genetic counseling, that is, screening total populations while the children still are at school and warning carriers about the potential risks of marriage to another carrier. Few data are available about the value of programs of this type; a pilot study in Greece was unsuccessful. Because it is believed this approach likely will not be successful in many populations, considerable effort has been directed toward developing prenatal diagnosis programs.
Prenatal diagnosis for prevention of thalassemia entails screening mothers at the first prenatal visit, screening the father in cases in which the mother is a thalassaemia carrier, and offering the couple the possibility of prenatal diagnosis and termination of pregnancy if both mother and father are carriers of a gene for a severe form of thalassaemia.
HbE B-thalassaemia is the commonest severe form of thalassaemia in South-East Asia and parts of the Indian subcontinent.
The diagnosis is confirmed by finding only HbE and HbF on haemoglobin electrophoresis and by demonstrating the HbE trait in one parent and the B-thalassaemia trait in the other. In cases of HbE B+- thalassaemia, small quantities of HbA are present.
Regarding prevention of thalassaemia it has been again observed as follows:
The treatment of thalassaemia major is very expensive, painful and psychologically disturbing. Emphasis must therefore, shift from treatment to prevention.
Fortunately, thalassaemia major is a preventable disease. As we know, thalassaemia minor or carrier state can be easily detected in a person by doing simple blood test HbA2 by hemoglobin electrophoresis. Prospective prevention includes population education, mass screening, genetic counseling and antenatal diagnosis and therapeutic abortion of affected pregnancy.
The book on Thalassaemia written in Bengali by Dr. Sudipa Basu has been referred to which has discussed that Thalassaemia is a genetic disease and the disease occurs when the gene in both the chromosome are defective. The child having Thalassaemia gets one defective gene from the father and other defective gene from the mother when both the parents are carrier of Thalassaemia.
A person becomes a Thalassaemia carrier though not suffering from Thalassaemia when he or she has one defective gene and the other normal gene. When both the parents are carrier of Thalassaemia only then the possibility of the child to have Thalassaemia disease is high being 50% of the children become carrier of Thalassaemia, 25% suffering from Thalassaemia and the balance 25% normal. If one of the parents is a carrier of Thalassaemia and the other one is normal, there is no chance of the child of such parents to have Thalassaemia as a disease though the child may be carrier of Thalassaemia.
Such propositions cited by the complainant, have not been disputed by the respondents by either producing any medical literature or an expert of the subject.
The petitioner has stated in his evidence that he got himself and the lady to be married examined for Thalassaemia. Only as the petitioner was found not even a carrier of Thalassaemia, he married the lady though she was found carrier of Thalassaemia, in view of medical advice obtained by him that there was no risk for the child to have Thalassaemia as a disease. This proposition gets support from the medical literature produced.
Apparently the complainant was misled by reason of the wrong report of Thalassaemia test by OP2 whose signature on the report shows herself as the maker. At the evidence stage OP2 filed an affidavit and in paragraph 7 thereof the OP2 has stated that the test held by her was done by a method called electrophoresis which has certain draw back and one of them is that it is labour-intensive and liable to variance and, therefore, in 1984 she adopted the method of HPLC in clinical haematology service which is much more accurate. But in her written version OP2 has stated that in 2002 the estimation of Hb-A2 was made by Hb-Electrophoresis and elusion of Hb-A2 band and in 2006 the estimation of Hb-A2 was done by the HPLC and none of the methods diagnoses accurately Thalassaemia carrier in 100% cases.
Therefore, apart from the contradiction between the pleading and the evidence, the OP2 has not even stated that she informed the complainant as regards inaccuracy of the tests which could have given a caution to the complainant. Moreover, the OP2 has not proved the said contention of inaccuracy of the method showing any medical literature or supporting evidence of an expert.
Therefore, we are of the opinion that the contention of the complainant is found proved.
As regards compensation for deficiency in service by reason of a wrong report by OP2, the case has been proved as indicated hereinabove. But as regards the medical expenditure the complainant in his pleading and evidence has stated about the expenditure at Rs.6,000/- per month for medicine, different tests and blood transfusion for the child. But calculation of the cost has been made for the entire life of the child and the future expenditure, in our opinion, cannot be compensated at the stage. Therefore, taking the detection of the disease within one year of the childs birth namely on 16.12.06 when the Thalassaemia test of the child showed a positive result, the cost of treatment upto date can be reasonably claimed. The evidence of the complainant as regards cost has been disputed by the OP2 in any manner whatsoever nor even any question was put to the complainant disputing the same. Therefore, in our opinion complainant is entitled to cost of Rs.1,92,000/-.
In view of our finding the complaint is allowed and the OPs are directed to pay Rs.1,92,000/- towards the cost of treatment and Rs.1 lac towards compensation along with Rs.10,000/- as costs of litigation within a period of sixty days from the date of this order and in default thereof the complainant will be entitled to recover the same in accordance with law along with interest @ 9% per annum for the period of default.
(S. Majumder) (A.K. Ray) (Justice A. Chakrabarti) MEMBER(L) MEMBER PRESIDENT