National Consumer Disputes Redressal
O.Devpal vs Dr.Wesley & Another on 9 September, 2011
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO.2264 OF 2007 (Against the order dated 30.03.2007 in Appeal No.328/2003 of the State Commission, Andhra Pradesh) O.Devpal ..Petitioner Versus Dr.Wesley and Anr. Respondents BEFORE: HONBLE MR.JUSTICE ASHOK BHAN, PRESIDENT HONBLE MRS.VINEETA RAI, MEMBER For Petitioners : Mr.V.Sridhar Reddy, Advocate For Respondents : Ms.A.Subhashini, Advocate Pronounced on 9th September, 2011 ORDER
PER VINEETA RAI, MEMBER The present revision petition has been filed by O.Devpal (hereinafter referred to as the Petitioner) being aggrieved by the order of the State Consumer Disputes Redressal Commission, Andhra Pradesh (hereinafter referred to as the State Commission) in Appeal No.328/2003 in favour of Dr.Wesley, Director of Aroygavaram Medical Centre and D.James, Incharge Assistant, Aroygavaram Medical Centre, hereinafter referred to as Respondent No.1 and 2 respectively.
The facts of the case according to the Petitioner are that his wife, C.Padmavathi who had complaints of severe menstrual bleeding was advised to undergo hysterectomy by Respondent No.1 in April, 1997 and got herself admitted in Respondent No.1s hospital on 07.05.1997. Since, she was anaemic(with Hemoglobin count of 5 mg.), she was advised blood transfusion prior to the surgery. Petitioner purchased 6 bottles of blood from Respondent No.2 for this purpose. Patient was operated on 25.05.1997 and after the operation, she suffered from high fever which persisted right upto the time that she was discharged on 12.06.1997. As per the discharge certificate, Respondent No.1 had diagnosed that the patient was suffering from Typhoid and she was given treatment with required medicines for 10 days. After discharge, the condition of the patient deteriorated and she was admitted to Mary Lott Lyles Hospital where her blood was tested and as per that hospital, she was diagnosed as being positive for Hepatitis B. She ultimately died on 01.08.1997. According to the Petitioner, the death occurred because the blood purchased from Respondents and transfused to the patient was contaminated because of which she got infected with Hepatitis B. In fact, the Respondents were aware of these facts and knowing that she had contracted a fatal disease through blood transfusion, quickly discharged her on 12.06.1997. There was thus obvious dereliction of duty and medical negligence on the part of both Respondents since they took no precautions to test the blood to ensure that it was safe and fit for transfusion. Being aggrieved, Petitioner sent a legal notice to the Respondents calling upon them to pay Rs.3,30,000/- to the Petitioner. Since, they refused to pay the amount, Petitioner filed a complaint before the District forum on grounds of deficiency in service and medical negligence and requested that Respondents be directed jointly and severally to pay the Petitioner Rs.3,30,000/- and also litigation costs and any other relief as deemed appropriate.
Respondents while admitting that the patient was admitted to their hospital and after medical tests, was advised to undergo Hysterectomy, have also stated that since she had severe Anaemia with a Hemoglobin count of 5 mg., she was required to undertake a series of blood transfusions to increase her Hemoglobin count before the surgery. The Petitioner accordingly purchased blood from their authorized blood bank which had been collected from blood donors after following stringent safety guidelines to ensure that it was not contaminated. The patient successfully underwent the blood transfusions as well as the Hysterectomy. However, on 05.06.1997, she developed fever and tested positive for Typhoid for which she was also successfully treated. On 12.06.1997 her general condition had improved and she got herself discharged on her own. According to the Respondents, if the blood had been infected, there would have been complications right from the time of the first blood transfusion which was not the case. It appears that the patient might have contracted the infection after her discharge and died perhaps due to lack of proper treatment at the Mary Lott Lyles Hospital where she was admitted. Respondents also questioned the diagnosis of Hepatitis B made by the Mary Lott Lyles Hospital since according to them the abovesaid hospital did not in 1997 have the required laboratory and technical facilities to detect and diagnose cases of Hepatitis B. The complaint according to Respondents was falsely made because the Petitioner whose son is an employee of the Respondents hospital also wanted his other son appointed in the hospital which was not done by the Respondents.
The District Forum after hearing both parties allowed the complaint by observing as follows:
R2 and vicariously R1 are liable for the mistake committed by R1 because the blood was supplied from the blood bank of Arogyavaram Medical Center. Ex.B3 is the letter from Drugs Control Administration of A.P., addressed to R1. It shows that the permission for blood bank was sanctioned on 05.11.1998. Rw.1 and 2 admitted in their evidence that prior to that date there was no permission for blood bank and in fact several blood banks were without permission like that. It is evident that the blood bank of Arogyavaram Medical Centre was without permission from a competent authority on the date when the blood was supplied for transfusion to Smt.C.Padmavathi. Therefore, it cannot be said that there is negligence on the part of the opposite parties 1 and 2. In order to cover up their mistakes, the opposite parties are now trying to throw the blame on Mary Lott Lyles Hospital on the ground that the patient was not treated properly. It is well known thing that a person affected with HIV will not survive and there is no treatment for the said virus.
The District Forum directed the Respondents to jointly and severally pay the Petitioner an amount of Rs.3,15,000/- within 6 weeks from the date of receipt of the order and Rs.2,000/- as costs.
Aggrieved by this order, Respondent filed an appeal before the State Commission which allowed the appeal by observing as follows:
We have gone through the entire record. It is pertinent to note that the respondent/complainant failed to establish any medical negligence and the exact line of treatment to be given by the appellants. We observe from the record and it is also an admitted fact that the patient was given blood in appellant hospital because of her severe condition of anaemia and thereafter Hysterectomy operation was done on 27.05.1997 and she was kept under supervision till 12.06.1997 and was discharged.
The contention of the respondent/complainant that the appellant hospital had given her blood infected with HIV is not proved. We have gone through the deposition of the Lab Technician, Mr.James, who have given a report stating that the blood is free from HIV as well as Hbs. The burden of proof is on the respondents/complainants to establish the contention that the appellants were negligent in administering blood which was infected with HIV/Hbs and they failed to do so in the instant case. Secondly after discharge on 12.06.1997 the patient was admitted in MLL hospital on 14.07.1997 and thereafter she died on 07.08.1997 on account of Hepatitis B as alleged by the respondents. The respondents have not brought any expert opinion on record to prove negligence of any sort and therefore we are of the considered opinion that there is no negligence on the part of the appellants Hence, the present revision petition.
Learned Counsel for both parties made oral submissions.
Learned Counsel for Petitioner while reiterating the stand taken by Petitioner before the Fora below emphasized that on the basis of credible documentary evidence it was proved that the blood bank from which the Petitioner purchased blood for his wifes transfusion did not even have a licence at that time. It was only in 1998 that the Respondent applied to the Drug Controller, Government of Andhra Pradesh for the necessary licence which was granted on 05.11.1998. In the absence of a licence, a doubt on the safety standards and procedures adopted by the blood bank is justified. Secondly, a direct nexus is established in this case between the patients fatal illness (Hepatitis B) and the blood transfusion because as is medically well established this disease could have been transmitted in the instant case either through the parenteral route i.e. through the blood or through sexual contact.
In the instant case, because of her Hysterectomy, the latter route (sexual contact) is ruled out. Counsel for Petitioner also pointed out that in the instant case it is on record that the patient did not have Hepatitis B on 17.05.1997 when she was admitted in the Respondents hospital for bleeding disorders.
It was contracted about a month later as per the diagnosis of the Mary Lott Lyles Hospital. Since, it is a medically established fact that the incubation period for Hepatitis B virus is from one to three months and because blood transfusion was the only route through which she could have contracted the disease, it is clearly proved that the cause of the disease was the contaminated blood transfusions in the Respondents hospital for which Respondents are wholly responsible.
Counsel for Respondents, however, have denied the above allegations and stated that in the first place, the District Forum grossly erred in concluding that the patient died because of HIV infection contracted through blood transfusions.
HIV per se does not lead to death and further the incubation period varies from 6 months to an unknown period of time. On the other hand, the State Commission being a court of fact as well as the first court of appeal after carefully scrutinizing the evidence filed before it rightly exonerated Respondents for any deficiency in service. The onus to prove the case was on the Petitioner who has failed to do so. The only evidence produced by the Petitioner that the patient had contracted Hepatitis B, was a certificate from the Mary Lott Lyles Hospital but it has come in evidence before the Fora below that the said hospital was not equipped to conduct tests for Hepatitis B. Even if the patient did have Hepatitis B as per the medical records submitted by that hospital, it appears that she was given medications, which were contraindicated, for a patient suffering from Hepatitis B. In any case, the patient should have been referred to a super specialty hospital better equipped to treat Hepatitis B. According to Counsel for Respondent, the patient died due to an infection that was not related to any treatment that she had undergone during her stay at Respondents hospital and which might have later contracted the infection due to contaminated water or other factors.
Counsel for Respondents also reiterated that the blood bank maintained high standards of safety and carefully maintained the list of donors whose blood was screened before being deposited in the bank. Counsel for Respondent quoted several rulings including of the Apex Court in Indian Medical Association Vs. V.P. Shantha (1995) 6 SCC 651 wherein it had been concluded that in the absence of expert evidence in support of the allegation, it is not possible to prove that the patient died because of the transfused contaminated blood. The State Commission rightly assessed all these facts and concluded that there was no case of medical negligence on the part of Respondents.
We have heard learned Counsel for both parties at length and have carefully gone through the evidence on record.
The facts pertaining to the hospitalization of the Petitioners wife in the Respondents hospital and her having undergone blood transfusion prior to her Hysterectomy are not in dispute. It is also established from the medical records filed in evidence before the Fora below that at the time of her admission in Respondents hospital, Petitioners wife did not have Hepatitis B. However, just about 5 weeks later, she was diagnosed with the disease which she could have contracted only through blood transfusions and no other route because sexual contact in her case was ruled out due to her having undergone Hysterectomy. Since, it is not in dispute that the blood for the transfusion was purchased from the Respondents blood bank and the disease was contracted during the medically acknowledged period of incubation i.e. within one to three months, this confirms the fact that it was because of the contaminated blood that the patient contacted Hepatitis B. Respondents contention that she could have contracted it through contaminated water etc. is not acceptable because again it is a medically established fact that it is only Hepatitis A and E which can be contracted through feco-oral transmission*. Respondents contention challenging the diagnosis of Mary Lott Lyles Hospital that the patient had Hepatitis B is also questionable since Respondents have not been able to lead any evidence to substantiate their claim that this hospital did not have the required laboratory facilities to diagnose and treat cases of Hepatitis B. On the other hand, the Respondents having an unauthorized and unlicenced blood bank casts an adverse inference on the safety standards observed in that blood bank. In this case, unfortunately this apprehension has proved to be correct because as discussed earlier, it is clear that the Petitioners wife contracted Hepatitis B because of the contaminated blood from the Respondents blood bank which was transfused in her. Respondents tried to hide the fact that the blood bank was not licensed by stating before the Fora below that in fact their application in 1998 was only for renewal of the Blood Bank licence.
This was clearly an incorrect statement as proved by the letter of the Drug Controller, Government of Andhra Pradesh, which was filed in evidence. Further, the judgement quoted by the Respondents will not be of much help to them because in the instant case it is obvious that Respondents had not taken reasonable care in performing services.
The fact that they were running an unauthorized blood bank itself is an ample proof of the same. While we agree that the District Forum erroneously recorded that the patient died because of HIV (perhaps because the modes of transmission of HIV and Hepatitis B are common), we find no other infirmity with the reasoning of the District Forum in concluding that there was medical negligence on the part of the Respondents.
In view of the above facts, we have no option but to set aside the order of the State Commission. As ordered by the District Forum, Respondents are directed jointly and severally to pay to the Petitioner, Rs. 3,15,000/- within six weeks from the date of this order and Rs.2,000/- as costs failing which Respondent will be liable to pay interest @ 6% on the entire amount from the date of passing of the order by the District Forum.
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(ASHOK BHAN J.) PRESIDENT Sd/-
(VINEETA RAI) MEMBER /sks/ P.C.Das, Text Book of Medicine (2nd Edition). Current Books International Publications.
Mollisons Blood Transfusion in Clinical Medicine Klein & Anstee (11th Edition). Blackwell Publishing