State Consumer Disputes Redressal Commission
Dr.Vijay R.Bhosale vs Mr.Ramchandra Vasant Bhoi & Anr on 22 January, 2010
CONSUMER DISPUTES REDRESSAL COMMISSION CONSUMER DISPUTES REDRESSAL COMMISSION MAHARASHTRA STATE, MUMBAI FIRST APPEAL NO.78 OF 2010 Date of filing: 18/01/2010 IN CONSUMER COMPLAINT NO.643/2008 DISTRICT CONSUMER FORUM : SANGLI Date of order : 22/01/2010 Dr.Vijay R.Bhosale Dhanwantari complex Opposite to Civil Hospital Sangli Appellant/org.O.P.no.1 V/s. 1. Mr.Ramchandra Vasant Bhoi R/o.Bhui Galli, Kasbe Digraj Taluka Miraj, District Sangli Respondent/org.complainant 2. Padmabhushan Vasantdada Patil Government Hospital Sangli, Through Dean Respondent/org.O.P.no.2 Quorum : Justice Mr.S.B.Mhase, Honble President Mr.S.R.Khanzode, Honble Judicial Member
Mr.Dhanraj Khamatkar, Honble Member Present: Mr.V.V.Thorat -Advocate for the appellant : ORAL ORDER:
Per Justice Mr.S.B.Mhase, Honble President
1. Heard Mr.V.V.Thorat-Advocate for the appellant.
This appeal is directed against the order passed in consumer complaint no.643/2008 by the District Consumer Forum, Sangli. The complaint has been allowed and the appellant has been directed to pay an amount of Rs.15,000/- by way of mental agony. Appellant is further directed to pay Rs.3000/- by way of cost. Further interest @ 12% p.a. has been granted on the said amount.
2. Complainant-respondent no.1s daughter was suffering from swelling in the cheek and, therefore, she was taken to the respondent no.2s hospital. Respondent no.2 is a Civil Hospital. They found it necessary to have a pathological report of the blood of the daughter of the respondent no.1. Therefore respondent no.2 referred the patient to appellant who is running a private lab. Further, the sample of the blood was taken. It was tested by the appellant and the appellant declared that the daughter of the complainant was suffering from HIV infection. Accordingly, report was given. That report was dated 14/6/2007. It appears that since report was positive for HIV test, complainant had taken his daughter to another hospital. Second time it was found that she was not HIV positive. Thirdly, again test was carried out in the hospital of the appellant and it revealed that it was/is a non reactive. Therefore, it is an admitted position that the patient was not suffering from HIV infection and the report dated 14/6/2007 was an improper report. Said report for the first time declared that patient was reactive to HIV test.
3. Since it was finally diagnosed that complainants daughter is not suffering from HIV, complainant filed the complaint claiming that as a result of the wrong declaration by the appellant in respect of HIV positive, complainant, his family and daughter were under mental stress and whole the family was disturbed.
4. Appellant had appeared in the complaint and opposed the complaint. His now contention is that test which was carried out was screening test and it was not final and result on either side was possible and he tried to point out the report contents and the statements that all positive results are to be confirmed by appropriate method. Patient should contact surveillance centre for further instruction and, therefore, he submits that it was duty of the complainant to get the results confirmed. Now when it was found that patient is reactive and the appellant was aware of the fact that result of the test which he carried out is/was not final, appellant should have taken steps to adopt appropriate method for the confirmation. On the contrary, appellant has failed in his duty. Apart from that what is interesting to note that second time when the test was carried out on 3/7/2007 in the same hospital with use of the same method, namely screening test, sample reported to be non reactive. This shows that earlier test which was carried out was not properly carried out. Assuming for the sake of argument that the test was not conclusive, the moment the prima facie report of screening test was found to be reactive or positive, in such a serious ailment doctor is under obligation to carry out further tests and come to the final conclusion. Without coming to the final conclusion if the declaration is given and if subsequently said report or declaration is found to be incorrect, it is a case of negligence. In serious cases, where the report is of the HIV positive and/or of cancer, not only the patient will be disturbed but also whole family will be disturbed. Doctor is under legal and moral duty to come to a final conclusion in respect of his findings. He cannot take recourse subsequently to say that error is possible and/or results is positive and/or false positive. Whenever there are cases of false positive Doctor has to conclude that it is not a false positive, but it is certainly positive result. It appears that doctor is aware of all these things, since he has put up note below the report. Therefore, his own note on the report puts an obligation on him at least obligation to carry out further tests and advice accordingly to the patient. In the present matter no such advice was given by the appellant doctor. It is the patient who being suspicious about the result, went to another doctor and got it confirmed that the result of the appellant was wrong. Not only that he had also come second time to the appellant and tested it and second time appellant gave negative report. If all these circumstances taken together it becomes crystal clear that the declaration which was made on 14/06/2007 by the appellant that the daughter of the complainant was suffering from HIV was not made after due care as is required to be done by the doctor in the interest of the patient and more especially in the disease like HIV because it not only disturbs the patient but it also disturbs the whole family. It is also a social stigma and people thereafter tries to shun such person. Therefore, duty of the doctor and more so of the pathologist is more rigorous. This is a complete case of medical negligence as observed by the District Consumer Forum. We do not find substance to admit the case. Hence the order:-
ORDER Appeal stands rejected.
Copies of the order be furnished to the parties.
(Dhanraj Khamatkar) (S.R.Khanzode) (S.B.Mhase) Member Judicial Member President Ms.