State Consumer Disputes Redressal Commission
Dr. Uday Khanolkar & Others vs John Mascarenhas & Others on 1 December, 2015
1
BEFORE THE GOA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION,
PANAJI - GOA
FA No. 51/2015
Apollo Victor Hospitals,
Victor Hospital & Medical Service Pvt. Ltd.,
A company registered under the India
Companies Act 1956, with registered office at
"Sylvia" Circuit House Road, Altinho,
Panaji Goa 403 001. ......Appellant
v/s.
1. Mr. John Mascarenhas,
Since deceased by LR's
1(a) Mrs. Maria de Fatima Lucia Mascarenhas
Widow of Mr. John Mascarenhas,
1(b) Mr. Danil Darius Mascarenhas
Son of Mr. John Mascarenhas,
1(c) Mr. Von Richard Mascarenhas
All resident of H. No. 1297/D-4
Dams Raia, Salcete-Goa. .
2. Dr. Venctexa Molio,
1st Floor,
Consultant Physician & Cardiologist,
Damodar Chambers,
Opposite Police Station,
Margao Salcete Goa. .....Respondents
Appellant/OP No. 5 is represented by Adv. Shri. C.A. Ferreira.
Respondents Nos. 1(a) to (c)/Complainants are represented by Adv. Shri. M.P. Almeida.
Respondent No. 2 exparte.
Coram: Shri. Justice N.A. Britto, President
Smt. Vidhya R. Gurav, Member
Dated: 01/12/2015
ORDER
[Per Justice Shri. N. A. Britto, President] 2 Apollo Victor Hospital, OP No. 5 in C.C. No. 28/2005 has filed this appeal and it is directed against the final order dated 16/3/15, by which the Lr. South Goa District Forum has directed OP No. 5 to refund to the complainant (since deceased - and now represented by his wife and two sons, the Respondents herein) a sum of Rs. 10,500/- and to pay compensation of Rs. 2 lacs.
2. Some more facts are required to be stated to dispose off this appeal and for that the parties hereto are being referred to in the names as they appear in the cause title of the complaint.
3. The undisputed facts would be as follows:-
4. The complainant was a known case of diabetes and hypertension and was the patient of Dr. V. Molio, OP No. 1, of several years. Dr. V. Molio is also a consulting physician in OP No. 5, Hospital. On 7/5/04 at about 1.00 p.m. the complainant approached Dr. V. Molio with complaint of uneasiness and Dr. Molio took a cardiogram and by 7.30 p.m. on the same day, by another cardiogram, Dr. Molio confirmed that the complainant had myocardial infraction about 2 or 3 days old. The complainant, therefore, on the next day i.e. 8/5/04 at about 7.30 a.m. got himself admitted under Dr. U. Khanolkar, OP No. 2, interventional cardiologist and in-charge of Cardiology Department in OP No. 5 Hospital, and another ECG was taken which further confirmed that the complainant had suffered a heart attack.
5. The complainant was admitted in ICU and, according to the complainant, he was then shifted to SICU (Surgical Intensive Care Unit) for the purpose of carrying out angiography and angioplasty, if necessary. Complainant's blood samples were taken for obtaining haemotology, biochemistry and microbiology reports. Complainant showed positive for HIV by Rapid Card Method test and that was at 3 about 12.00 noon. Both the doctors, namely Dr. Molio and Dr. Khanolkar, discussed the case of the complainant and ordered re- examination of the blood sample for HIV test by the hospital microbiologist/OP No. 3 and the HIV test was repeated by using testing kits of Retrochek - Tulip Diagnostics, Acon Diagnostics, J. Mitra and Hepalert - Ranbaxy, etc. but again the report came positive for HIV. The complainant was told, that since the complainant was tested HIV positive, the procedures would cost the complainant 15% more than the normal charges since all the material and equipment which was to be used was required to be destroyed.
6. Thereafter, the procedures of angiography and angioplasty were successfully completed on the complainant and there is no dispute about it, as according to the doctors, the condition of the complainant was serious and immediate angiography and/or angioplasty was required.
7. On 9/5/2004 the hospital authorities using the remaining blood samples of the complainant drawn on 8/5/04, carried out third generation Elisa test in the hospital laboratory, and, also by referring part of a blood sample to Tulip Diagnostics at Verna for testing by 4th generation Elisa kit and both the tests recorded indeterminate results. Elisa screening test is known to have sensitivity of 99.58% (see at pg.
200).
8. On 10/05/04 the case of the complainant was again discussed and blood samples of the complainant were taken on 11/5/04 one to be sent to Ranbaxy Laboratory at Mumbai to be tested by Western Blot Method and the other was handed over to the complainant to be tested at the laboratory of his choice. The blood sample which was sent to Ranbaxy Laboratory at Mumbai for testing by Western Blot Method showed negative result for HIV test and the report was 4 received by OP/Hospital on 14/5/04, and, the complainant was informed about the same and the Complainant collected the report on 17/5/04. The sample handed over to the complainant, the complainant got it tested from Dr. Raikar's Pathology Laboratory, Margao, and the report dated 11/5/04 issued by the said Laboratory showed that the complainant's blood sample was non-reactive for HIV 1 and HIV 2 antibodies. One does not know, which of three methods mentioned hereinabove, was used by Dr. Raikar's Pathology Laboratory to come to the said conclusion. We assume that Western Blot Method is 100% sensitive and is the only sure method for detecting HIV but testing by the said method was not possible in Goa and the results could be obtained only after 3 or 4 days as stated by Dr. Khanolkar and as admitted by the complainant in para 71 of his affidavit-in-evidence.
9. Now, the case of the complainant is that the complainant was shocked to come to know that the microbiology report had tested him to be HIV positive and he was totally crest fallen under severe shock on the said information disclosed to him by Doctors Molio and Khanolkar and his wife was also under severe shock. It is the case of the complainant that said doctors informed him and his wife that the complainant was conclusively HIV positive and he requested the said doctors that a fresh test be conducted and one blood sample be handed over to the complainant's wife so as to get it tested at a different laboratory, but the said doctors nor the Hospital Authorities acceded to the request of the complainant and continued to persist that the report that the complainant was HIV positive was conclusive and as such he was compelled to accede to the demand of the Hospital and pay 15% more for the procedures of angiography and angioplasty.
510. On the other hand, Dr. Molio, OP No. 1, would say that Dr. Khanolkar was waiting for him, since the complainant was his patient, to report to him that the complainant was tested HIV positive and that Dr. Khanolkar, OP No. 2, and he had disclosed to the wife of the complainant that the test carried out was not full proof but needed to be confirmed by specialized laboratories and the said information was given to the family members of the complainant so that they may take precautionary measures to avoid spreading of HIV to the family members. He stated that facility for HIV tests available in Goa were not full proof and to confirm such position the blood had to be sent to either Mumbai or Pune to have a final opinion. He stated that he was duty bound to disclose the result of blood examination to the patient as well as to his family members in order that necessary precautions are taken to avoid spread of HIV, if the same really existed in the complainant. Dr. Molio, OP No. 1, denied that he informed the complainant and his wife that the complainant was conclusively HIV positive. He stated that as a matter of precaution and abundant caution the material instruments used on HIV persons are to be destroyed. He has denied that the complainant or his wife asked him for a blood sample to be taken and given to them. According to him, he concurred with the opinion of Dr. Khanolkar, OP No. 2, to go for a specialized test by Western Blot Method, which is routine in all cases where any patient tests positive for regular HIV test. He has denied of having affirmed or persisted with the microbiology report obtained at the hospital was conclusive. He has also denied not having maintained requisite secrecy in the matter or having acted in the careless or negligent manner. He confirms that on 11/5/04 two separate voluntary blood samples were taken one of which were sent by the hospital to the specialized laboratory in Mumbai and other was given to the complainant.
611. Dr. Khanolkar, OP No. 2, stated that the result of the test carried out by OP No. 3, Microbiologist reached him at about 12.00 noon and the said test carried by Rapid Card Method showed the complainant to be HIV positive but in no case this can be interpreted that the complainant was suffering from aids and that he discussed the case with Dr. Molio and came to the conclusion to re-examine the blood samples for HIV test by using diagnostic kits of different manufacturers and the rapid test carried out with four kits of different companies came positive in respect of complainant's blood sample. Dr. Khanolkar stated that the Hospital has a protocol in respect of patients who are admitted and who are suspected or are proved positive for HIV virus or Hepatitis B or C virus, etc. to treat them as Sero Positive Status which does not reveal the exact nature of the illness, if any, but indicates to all those attending to the patient directly or indirectly that extra precaution needs to be taken in respect of such patients but there is no disclosure of the illness, if any, suffered or suspected in respect of such patients and only indoor records of the Hospital show the same. Dr. Khanolkar stated that since the condition of the complainant was serious which required immediate angiography and angioplasty, if necessary, depending upon the result of angiography, it was decided to appraise the complainant about the blood test-results and accordingly the complainant was appraised and the complainant was also informed that the result of the test could be false positive which needed confirmation and the complainant was specifically told that such a result could be obtained only after 3 or 4 days but it was imperative to proceed with the procedure, given the gravity of the condition of the complainant at that particular point of time and the complainant requested that his wife be apprised of the situation which was accordingly done in the presence of the complainant. Dr. Khanolkar has stated that the complainant was informed that HIV test done by Rapid Card Method 7 gives false alarm of positive test result if the patient is suffering from any other disease, other than HIV, including flu, recent viral infection or exposure to viral vaccines. Dr. Khanolkar has mentioned 43 instances where HIV test done by Rapid Card Method could give a false alarm of positive test. Dr. Khanolkar stated that the complainant was informed that any delay in conducting angiography and angioplasty, if necessary, would have serious consequences on the health of the complainant. Dr. Khanolkar stated that they as well as the Hospital are concerned with the welfare of the patient but they also owe the duty to the attendant doctors, medical and paramedical staff as also others involved with the patient and that the complainant was informed that because of the said report the cost of the operation would be 10 to 15% more than the normal and after obtaining the consent of the complainant angiography and angioplasty was carried out on the same day successfully after following all precautions which were required to be taken in a case of Sero Positive patients. Dr. Khanolkar has stated that because they were concerned about the complainant that on 9/5/04 they sent two samples available for Elisa test to the Hospital Laboratory and Tulip Diagnostics which gave indeterminate results.
12. The complainant in support of his case filed his affidavit-in- evidence on 5/9/2007. The complainant did not file the affidavit of his wife. Dr. Molio, OP No. 1, filed his affidavit-in-evidence on 31/1/08. On 9/9/08 the complainant filed an application for cross examination of Dr. Molio and Dr. Khanolkar, OP Nos. 1 and 2 respectively, and OP No. 1 filed an application for cross examination of the complainant on 7/10/08. After a long gap, the complainant filed what is known as examination in chief on 17/6/13. The complainant expired on 16/10/13 and complainant's widow and their two sons have now been brought on record. Complainant's wife 8 then filed her affidavit-in-evidence on 8/11/14, and, on an application filed on 1/12/15 she has been cross examined on interrogatories. One fails to understand the procedure followed in this case by the Lr. District Forum particularly the procedure of the complainant filing examination in chief on 17/6/13 and the widow/ legal heir of the deceased complainant giving her evidence on affidavit, after the death of her husband. Complainant's widow having been brought on record, after his death, would not have been able to produce her evidence, de novo even under ordinary procedure followed in the Civil Courts. Her evidence therefore will be required to be excluded.
13. Be that as it may, the first point raised by Shri. Ferreira, the lr. advocate of the OP No. 5 is that the compensation claimed by the complainant John was for personal injuries -shock- suffered by him on the allegation that he was told that he was suffering from HIV. Lr. advocate would submit that the right to recover the said compensation ought to have died with him on the principle of "actio personalis moritur cum persona". Lr. advocate has placed reliance on M. Veerappa vs. Evelyn Sequeira and ors., 1988 (1) SCC 556, Professor Baleshwar Singh (Deceased) vs. Dr. Manoj Sharma, 2012 (3) CPR 321 and Mrs. Janak Kumari vs. Dr. Balwinder Kaur Nagpal and anr. (Manu/CF/000370/2003). Lr. advocate has also pointed out, referring to para 22 of the complaint that the said compensation was sought for personal injuries of the complainant, since deceased.
14. On the other hand, Shri. M.P. Almeida, the lr. advocate of the complainant would submit that the compensation claimed was also on behalf of the family, particularly the wife, who also suffered severe shock.
915. In the case of M. Veerappa vs. Evelyn Sequeira and ors., (supra) it has been held by the Apex Court that the maxim "actio personalis moritur cum persona" has been applied not only to those cases where a plaintiff dies during the pendency of the suit filed by him for damages for personal injuries sustained by him but also to cases where a plaintiff dies during the pendency of an appeal to the appellate court, be it the first appellate court or the second appellate court against the dismissal of the suit by the trial and/or the first appellate court as the case may be. This is on the footing that by reason of the dismissal of the suit by the trial court or the first appellate court as the case may be, the plaintiff stands relegated to his original position before the trial court. A suit or an action which has abated cannot be continued thereafter even for the limited purpose of recovering the costs suffered by the injured party. The said maxim has been held inapplicable only in those cases where the injury caused to the deceased person has tangibly affected his estate or has caused an accretion to the estate of the wrongdoer... as well as in those cases where a suit for damages for defamation, assault or other personal injuries sustained by the plaintiff had resulted in a decree in favour of the plaintiff because in such a case the cause of action becomes merged in the decree and the decretal debt forms part of the plaintiff's estate and the appeal from the decree by the defendant becomes a question of benefit or detriment to the estate of the plaintiff which his legal representatives are entitled to uphold and defend."
16. In Mrs. Janak Kumari vs. Dr. Balwinder Kaur Nagpal and anr., (supra) a complaint was filed against the doctor and the Insurance Company by the said Mrs. Janak Kumari and during the pendency of the complaint Janak Kumari died on account of some other cause. Her legal representatives were brought on record. After the dismissal of the complaint the legal representatives preferred an appeal before 10 the State Commission and the appeal was dismissed. The Lr. National Commission referred to Section 3 of the Transfer of Property Act, 1882 which defines an actionable claim, and, concluded that a right to sue is certainly not an actionable claim and cannot be transferred in view of Section 6 thereof and upheld the dismissal of the complaint.
17. In the case of Professor Baleshwar Singh, (supra) the complaint was filed alleging medical negligence and deficiency in service on the part of the OPs. During the pendency of the complaint, Professor Baleshwar Singh expired on 16th of July, 2006 and his son and attorney was brought on record. The point of eligibility of the legal representatives to sustain and maintain the complaint was raised after the death of the complainant Professor Baleshwar Singh and it was contended that the right to sue or maintain the complaint survives only during the lifetime of the complainant and abates the moment he expires. Reliance was placed on M. Veerappa vs. Evelyn Sequeira and ors., (supra) and also to Mrs. Janak Kumari vs. Dr. Balwinder Kaur Nagpal and anr., II 2002 CPJ 208. The National Commission after referring to the said decisions concluded that the principle of "actio personalis moritur cum persona" would be applicable to the facts of the case.
18. In the case at hand, it is the complainant who claimed the compensation on account of having suffered shock due to the fact that he was told that he was suffering from HIV positive. In the case of Jaswant Rai Chopra & anr., vs. Air Canada referred to in our order dated 17/11/14 in RP No. 07/14 arising from this very consumer complaint, it was held that the claim of the complainant No. 2, the sister of the complainant was too remote for the Commission to go into and to award her compensation. We would go a little further. It 11 is nobody's case that the complainant's widow is a consumer. The complainant filed the consumer complaint because it is he who was a consumer and there was deficiency in service on the part of the doctors and the Hospital. This consumer jurisdiction is meant only for consumers and not for others. It is their one way street, so to say. In case the complainant wanted to recover compensation for himself and/or his wife, he should have chosen some other Forum and not a Forum which is exclusively meant for consumers. Complainant, therefore, could not recover any compensation for and on behalf of his widow on the allegation that she too had suffered mental shock/ tension. Right to recover compensation for his mental tension had died with him on 16/10/13, and, therefore complainant's legal representatives could not have proceeded with the complaint in terms of prayer (b) of the complaint. The Lr. District Forum therefore was not right in awarding to the legal heirs of the deceased complainant Rs. 2 lacs for trauma suffered by them. We are unable to accept the submission made by Shri. Almeida, the lr. advocate.
19. The second point raised by Shri. Ferreira, the lr. advocate of OP No. 5, is that the Hospital has taken reasonable care and caution and there was no negligence on their part. Lr. advocate submits that in fact the Hospital took extra care of the complainant and therefore the Hospital should have been absolved of any liability towards the complainant.
20. On the other hand, Shri. M.P. Almeida, the lr. advocate of the complainant would submit that the hospital should have carried out a test which was conclusive and not doing so would amount to negligence. Lr. advocate would also submit that the complainant had requested a sample to be given to the complainant to be analyzed 12 privately which the doctors of the Hospital declined to be given to the complainant.
21. Negligence as a tort is the breach of a duty caused by omission to do something which a reasonable man would do or doing something which a prudent and reasonable man would not do. The Apex Court in Dr. Laxman Balkrishna Joshi vs. Trimbak B. Godbole, AIR 1969 SC 128 has held that a Doctor when consulted by a patient owes him certain duties, namely:
a) a duty of care in deciding whether to undertake the case;
b) a duty of care in deciding what treatment to give; and
c) a duty of care in the administration of that treatment. A breach of any of this duties gives a cause of action of negligence to the patient.
22. The burden to prove medical negligence, like any other case, was on the complainant i.e. to prove every fact necessary to fasten legal liability or in other words the complainant had the task of convincing the Forum that his version of facts is the correct one. The question here is of credibility. Are we going to believe the complainant's self-serving statement that both the doctors informed him and his wife that he was conclusively HIV positive? Or are we going to believe both the doctors that the complainant and his wife were informed that the result of the test was not conclusive but was required to be confirmed by specialized laboratories from outside Goa? We are inclined to believe both the doctors rather than the complainant whose version is not corroborated and otherwise opposed to the probabilities of the case. In our view, the OP doctors in case they had told the complainant that the tests carried out by the Hospital conclusively proved that the complainant was HIV positive, they would not have carried out further tests on 9/5/04 by Elisa 13 method by sending a part of the sample to their own laboratory and another part to Tulip Diagnostics, and, again on 11/5/04 by taking a fresh sample and sending a part of the sample to Ranbaxy Laboratory at Mumbai and to give another part of sample to the complainant for his satisfaction to carry out a test at a laboratory of his choosing. If facility for testing by Western Blot Method, which is the only sure method, was not available with the Hospital or anywhere in Goa at that point of time how can the complainant say that the Hospital should have tested his blood for HIV by the said Western Blot Method? The Hospital used the facilities which were available with them. The information conveyed to the complainant and his wife that the HIV tests could be false positive and needed confirmation appears to have been entered on the doctors order sheet, as stated in the written submissions filed on behalf of OP No. 1, but we have not been able to find the copy of the same on record, but as already stated, we would prefer to go by the versions of both the doctors rather than the complainant. Another allegation is that the doctors did not give a sample to the complainant's wife for the complainant to verify whether he was really HIV positive. We have to take note that the Hospital itself took about 3½ hours to give rapid test report of the complainant. We are also aware that no laboratory gives blood test reports immediately for the asking. Ordinarily, blood samples are taken and/or submitted for examination in the morning and, the results are delivered not before 4 to 5 p.m. Did the complainant expect the doctors then to wait for the complainant's report, in a condition the complainant was and at that time in SICU to carry out angiography or angioplasty as if the complainant was HIV negative for another 3 ½ hrs.? Which doctor would have waited and taken the risk for another 3 ½ hours or so, to carry out the procedures which were required to be carried out at the risk of the complainant getting another heart attack? and who would have been answerable in case 14 the complainant had suffered another heart attack during the said period? In our view, both the doctors acted prudently and in the interest of the complainant without wasting time, and for that no negligence can be attributed to the doctors. In our view, no case of negligence was made out by the complainant either against the doctors or the Hospital.
23. The third point raised by Shri. Ferreira, Lr. advocate of OP No. 5 is that sub-section (7) of Section 13 of the C.P. Act which enabled the legal representative of a deceased complainant to continue with the complaint was introduced by Act of 62/02 with effect from 15/3/2003 and the same has now been repealed by the Act No. 19 of 2015 as published on Gazette of India dated 14th May 2015 and therefore the legal representative of the complainant could not have continued with the complaint. Shri. Almeida, the lr. advocate of the Complainant, on the other hand, would submit that the repeal, if any, would be prospective and it would not affect the complaint being pursued by L.Rs in view of Section 6 (c) of the General Clauses Act, 1987. Lr. advocate has placed reliance on Commissioner of Income Tax vs. Sarkar Builders, 2015 DGLS (Soft.) 426. We are inclined to accept the submission of Lr. Adv. Shri. Almeida. The repeal, if any, would be only prospective apart from the fact that it could also be prima facie said that sub-section (7) of Section 13 was brought about only by way of clarification and the complainant's L.Rs could have always continued with the complaint in case the cause of action survived.
24. In view of the above discussion, we find there is merit in this appeal. We therefore proceed to allow the appeal, set aside the impugned order and dismiss the complaint.
1525. Lr. Adv. Shri. Ferreira has submitted in the course of arguments without prejudice to the contentions raised by him that the OP No. 5, Hospital is prepared to refund Rs. 10,500/- plus costs of Rs. 10,000/- to the complainants. Accepting the submission, we direct OP No. 5, Hospital to refund Rs. 10,500/- plus Rs. 10,000/- to the widow of the deceased complainant within a period of three weeks. But for the above direction, the complaint shall stands dismissed.
[Smt. Vidhya R. Gurav] [Justice Shri. N. A. Britto]
Member President
sp/-