State Consumer Disputes Redressal Commission
L vs Dr.G & Anr on 12 April, 2007
CONSUMER DISPUTES REDRESSAL COMMISSION CONSUMER DISPUTES REDRESSAL COMMISSION MAHARASHTRA STATE CONSUMER COMPLAINT NO.237/1997 Date of filing : 17/ 09/1997 Date of order : 12/04/2007 L C/o.Firdaus Moosa 4th floor Jalaram Jyot 63, Janmabhoomi Marg Mumbai 400 001 ..Complainant V/s. 1. Dr.G Vishal Pathology Centre & Blood Bank New Road, Nehru Chowk Ulhasnagar 421 002 2. Dr.M Dr.Mhaskars Hospital Murbad Road, Kalyan .Opposite parties Corum : Justice Shri B.B.Vagyani, Honble President Mr.P.N.Kashalkar, Honble Judicial Member Smt.S.P.Lale, Honble Member
Present:
Mr.Anand Grover-Advocate for the complainant.
Mr.S.B.Prabhawalkar-Advocate @ Ms.D.K.Juvekar-Adv.
for O.P.no.1 None for O.P.no.2
-: ORDER :-
Per Mr.P.N.Kashalkar, Honble Judicial Member
1. This complaint has been filed by housewife of Mumbai, aggrieved by the medical negligence of opponent nos.1&2. We deem it fit and proper to mention complainant by word L and O.P.no.1-Dr.G and O.P.no.2 by Dr.M, so as to safeguard the interest of all the parties to this complaint.
2. Case of the complainant as set out in the complaint filed before this Commission is that she is 27 years housewife and has married to Mr.Chandrakant Lad working as Junior officer in a private company.
Complainant Mrs.L has two issues from her husband, one is female child of 4 years and other male child of 6 months. According to complainant, O.P.no.1 Dr.G is a Medical Practitioner and Sole Proprietor of Vishal Pathology Centre and Blood Bank on New Road, Nehru Chowk, Ulhasnagar, District Thane and O.P.no.2 Dr.M is a Medical Practitioner to whom complainant had approached for maternity related problem. According to complainant on account of opponents transfusing blood to her without testing for HIV (Human Immuno Virus), she has contracted HIV. She has filed this complaint for compensation with a prayer for suppression of identity of complainant and other persons named herein and for the reason that disclosure of her HIV status would be a permanent stigma and she and her family would suffer untold misery. She pleaded that on 23rd March 1992, she got married with her husband. Then around 6th May 1993, she gave birth to a female child. Thereafter in the year 1996, she became pregnant again and she was at this time under the treatment and care of O.P.no.2 Dr.M, who runs Maternity Hospital at Kalyan on Murbad Road. As a part of routine test, on 17th July, 1996, during her pregnancy, she underwent several blood tests including ELISA test for HIV I & HIV II antibody at one Dr.Shenoys Computerised Laboratory. Report was negative as far as HIV I & HIV II are concerned. Thereafter some time on 20th January 1997, she went for check up at O.P.no.2s hospital. O.P.no.2 Dr.M advised her to immediately get admitted for the delivery of her child. She did it accordingly and around 6 a.m. when she was in the labour room, she developed certain complications and O.P.No.2 Dr.M addressed her Caesarean operation and also told that she requires blood transfusion urgently. O.P. no.2 asker her husband to bring blood from the Blood Bank giving him a sample of complainants blood. In the meantime, it is alleged by the complainant that O.P.no.2 spoke with the Blood bank to make requisite arrangement of the blood. Thereafter her husband rushed to the blood bank of O.P.no.1 and purchased two units of blood of O positive, which matched with the blood of the complainant by paying Rs.1600/-. It is averred by the complainant that O.P.no.1 Dr.G sold the two units of blood without testing the said blood for HIV I & II virus in contravention of accepted medical practice and in contravention with statutory notification. In the receipts issued by O.P.no.1 it was falsely stated that HIV antibodies were not detected in the blood. Her husband was unaware of the presence of HIV Virus in the two blood units purchased from O.P.no.1s Blood bank. He innocently handed over the said two units of blood purchased from O.P.no.1 to O.P.no.2. At the time of handing over, her husband repeatedly requested O.P.no.2 if the blood was fit for transfusion, but O.P.no.2 assured competence of the Blood bank and did not carry out any further test on the blood units purchased by her husband from O.P.no.1, which was meant for transfusion to the complainant by O.P.no.2 in his hospital.
3. Caesarean operation was carried out and she delivered a male child. After delivery, O.P.no.2 transfused the said two units of blood to the complainant. O.P.no.2 advised complainants husband to bring two more units from the Blood bank. Accordingly, further two units were purchased by her husband and brought and handed over to O.P.no.2. Those two units were also purchased from O.P.no.1s Pathological laboratory for Rs.1600/-. Those units were also transfused to the complainant without any testing for HIV by any of the opponents.
4. Complainant was ultimately discharged from the hospital on 27/1/1997. On returning home, she started having dizzy spells and fever. She approached O.P.no.2 again, who told her that she was suffering from Typhoid. So she was admitted for 3 days in his hospital and was discharged on 6/2/1997. After about 10 days from the discharge, she started getting boils on her skin and found that she was unable to open her mouth. She also developed urine and stool infection. She approached her regular family doctor, who gave her certain medicine, but disease could not be contained. Hence family doctor advised her to approach Dr.Suresh Thakkar in Kalyan, who after examination told that she was suffering from Jaundice and medicine for that disease was given. However, even thereafter there was no improvement in her condition and in fact her health worsened on or about 12th June 1997. Complainant got Herpes. Thereafter Dr.Thakkar suspected that complainant might have got HIV Virus through blood transfusion process and therefore, he advised her to undergo HIV test. Complainant then underwent ELISA test at Kalyan and test was positive for HIV. Dr.Thakkar advised her to meet Dr.Alka Deshpande of J.J.Hospital. Once again she was further tested for HIV and diagnosis was that she was suffering from HIV I & II with ailments of Tuberculosis and Herpes. Since her condition had become extremely serious, she was admitted to J.J.Hospital, where she took treatment. Since she was not aware of HIV positive status, she continued to breast feed her child. Child was also found to be having HIV positive virus. Then her husband and child were subjected to ELISA test. Complainants husband found to be HIV I & II Negative. According to complainant, chances of contracting HIV by various modes of transmission are different. In the case of sexual intercourse, the chances are from 1:100 to 1:1000 and from blood transfusion, chances are 95%.
5. Complainant avers that prior to blood transfusion made by the opponents, during her delivery, complainant was found to be HIV I & II negative. Even her husband and daughter were tested to be negative. But she got HIV positive only after 4 units of blood were transfused, which were sold by O.P.no.1s Pathology and which was transfused to her by O.P.o.2 in his hospital immediately after her Caesarean operation. Therefore, according to complainant 4 bottles of blood transfused to her by the opponents were in fact infected with HIV virus and if they would have taken due care and caution with prior testing of the 4 blood units, she would not have got HIV positive infection by blood transfusion. O.P.no.1 at his Pathological laboratory level and O.P.no.2 in his hospital negligently by violating statutory notification, transfused blood to her, which was infested with HIV I & II virus. Therefore she categorically averred that she was administered HIV contaminated blood and thus HIV virus was put in her body by O.P.nos.1& 2 by their sheer negligence in discharge of their duties towards the patient. She pleaded that within 4-5 months, she became aware of her contracting HIV positive and she and her child contracted HIV virus because of careless administration of contaminated blood by O.P. nos.1 & 2.
6. Complainant has averred that by 4 routes, HIV virus is spread from one person to another. They are 1. Blood transfusion of HIV positive blood, 2. By sexual intercourse with HIV positive 3. Perinatally i.e. from the mother to the child in the womb and lastly 4. By breast feeding. Chances of contracting HIV by transfusion of HIV positive blood are nearly 100%. Her husband was not having HIV positive blood. Her minor daughter aged 4 years was also HIV negative. She was having HIV Positive after delivery because of negligence on the part of O.P.nos.1&2 and her child also contracted HIV positive status and that is because of wrong blood given to her during delivery by O.P.nos.1 & 2. According to complainant, HIV positive patient is likely to die within 18 years and therefore, she is not likely to live longer than 18 years and her life has been infringed directly on account of reckless negligence and criminal action of the opponents. Because of HIV virus detected ultimately, she suffered ill health badly. She had a complete break down of health and she suffered several ailments like Herpes, Tuberculosis and Typhoid. After her delivery, the complainant has not been in stable health at all and twice or thrice she was required to be admitted in hospital and put on medication. For more than 6 months she was unable to look after and nurse properly her new born child except for breast feeding him. The child was in fact deprived of his mothers care and attention. She has therefore claimed compensation of Rs.19,78,946/- in terms of particulars set out in Exhibiit K by filing this complaint.
7. O.P.no.1 Dr.G contested the complaint by filing written statement. He has taken objection that since blood is not the goods, consumer complaint as filed in this Commission is not tenable in law. Hence he wants this Commission to dismiss the complaint on this ground alone. He also pleaded that the complainant has filed complaint with false statements. She has not disclosed a treatment taken from other doctors, other than O.P.no.2. According to O.P.no.1 Dr.G, complainant was subjected to lot of instrumentation and lot of invasive procedures, which could have resulted in the present condition of the complainant. So for want of correct facts, he wants this Commission to dismiss the complaint. He also pleaded that complainant is guilty of suppressio veri suggessio falsi. He pleaded that in July 1996 as per Exhibit A to the complaint, complainant was advised to undergo testing for HIV. As per prevalent standards of medical practice, investigation for HIV is not asked for as a routine test. Besides, before any patient is advised to undergo HIV test, Pre-test and Post-test Counselling, by the referring doctor or counsellor is a must. So complainant must have undergone pre-test and post-test counselling and must have been properly given educational information. Counselling interalia informs such a patient following things:-
a.
That an HIV antibody test can be positive or negative. (The routinely performed screening test is ELISA Enzyme Linked Immunosorbent Assay).
b.
That in case the test is negative, it should be repeated after 3 months and then again at 6 months. This is because a negative test report could also mean that the patient could be in the window period.
c.
The window period means the time interval taken by the body to develop antibodies against the HIV antigen. This window period lasts for 3 to 6 months following HIV infection and this window period must elapse before results can be considered reliable. This is because during the window period, though the patient is infected with the HIV, no screening tests currently recommended by F.D.A. could detect the virus, as no antibodies have developed to give the antigen-antibody reaction upon the test.
d.
That if the test is positive, the result must be confirmed with Western Blot Test.
e.
Other information on control/avoidance of HIV infection etc.
8. According to O.P.no.1 complainant suppressed important facts about her condition, which necessitated her examination of HIV testing. In any event, as per Exhibit A, she is alleged to have tested HIV negative on 17/7/1996. But she had not undergone HIV test again after 3 and 6 months as well as prior to the delivery. O.P.no.1 averred that O.P.no.2 Dr. ought to have advised her to repeat the test to confirm her HIV status. Since this was not done, complaint should be dismissed, claimed O.P.no.1 in his written statement.
9. O.P.no.1 further pleaded that for her examination on 17/7/96, method applied was rapid test, which was of low efficacy/sensitivity. Therefore the result given by this test is less reliable as compared to the ELISA test, which is the test recommended by Food & Drug Administration for screening for HIV test of any person. Even manufacturers of system to test recommend that negative test should be repeated because negative test does not exclude possibility of exposure to or infection with HIV 1 and/or HIV 2 and therefore Dr.G pleaded that on mere one test conducted at Exhibit A, complainant cannot establish that she was HIV Negative. He pleaded that HIV infection and modes of transmission of HIV are serious issues. It is complicated question of facts and therefore, this Commission is not empowered or competent to conduct trial for the purpose of answering several issues arising out of in this matter and therefore this Commission has no jurisdiction to entertain and try this complaint and on this ground itself, he claimed that complaint should be dismissed.
10. O.P.no.1 further pleaded that the complainant embarked upon all fishy enquiry and found it convenient to make allegation against him and O.P.no.2 unsupported by the expert medical opinion. He pleaded that several factors are responsible for infection of HIV virus and unless all other factors are ruled out, no decision can be arrived at though complainant received HIV virus through blood transfusion. Improper sterilization of equipment in an operation including caesarean, infected needles, infected sharp instruments, scalpels, razors, tattooing equipment, etc. can also cause damage in this behalf and most important route of HIV transmission is through unprotected heterosexual intercourse with an infected partner. Hence he averred that paternity test must be performed in this case before arriving at the truth of the allegation made by the complainant. O.P. no.1 then gave all his educational qualifications and experience, which would negative supplying of infected blood units HIV positive. He gave the procedure of collecting, storing and forwarding blood units at his Laboratory and Blood banks. He specifically mentioned that before collecting blood from the donors, they take sample of donors and conduct laboratory test. Sample of blood taken from donated unit is then sent to the Government approved Zonal Blood Testing Centre to confirm the HIV status. Proper labeling and storing of the blood unit in the Blood Banks refrigerator is ensured. If the Zonal Blood Testing Centre report is positive for HIV antibodies, then such blood unit is sent to the same Zonal Blood Testing Centre for disposal according to law. At no time any such blood unit which is HIV positive is allowed to remain in the Blood Bank refrigerator for any longer period. On receipt of the requisition for blood, the said requisition is verified for its propriety. The sample of blood brought along with the requisition is grouped and subsequently cross matched with the proper unit. The blood unit is then packed in proper ice container with proper labeling, instructions and certificate with respect to its suitability for transfusion. Various details are written and all this information is provided in one form. No blood unit is stored beyond 21 days as its shelf life expires at the end of this period. He pleaded that there is no opportunity for any pathologist/Blood Bank officer to rule out the above window period. Pathologist cannot compel the donor to come again for a repeat HIV testing. There is an inherent unavoidable risk of any donor being in the window period of which the donor, the referring doctor, the pathologist or the Blood Bank officer may not have any clue.
11. According to O.P.no.1, before blood is collected, full care and caution is taken to ascertain that donor is fit for blood donation. Sample of blood collected from selected donors and while collecting blood from such donors, all mandatory tests are performed as per FDA guidelines. He further pleaded emphatically that results of HIV test conducted in the laboratory of O.P.no.1 are cross checked by sending the respective samples to the Zonal Blood Testing Centre at Civil Hospital, Thane, where Zonal Testing Centre clears the sample as being free of HIV, it was only then blood is declared suitable for transfusion. If the Zonal Blood testing Centre declares the blood sample to be HIV positive, then such blood sample is sent back to the same centre for proper disposal as per FDA guidelines. Results given by Zonal Testing Centre are considered final. He pleaded that same procedure was followed in his Blood bank. All tests including for HIV, were duly conducted on blood samples before blood was stored in the Blood Bank on 19.1.1997 to 20.1.1997 and only after they were found to be negative that the blood was collected from the blood donors and stored in CPD bottles in the refrigerator. He pleaded that blood samples from no.09, 08, 11 and 15 were also sent to HIV Zonal Blood Testing Centre for confirmation at V.S.G.H. Blood Bank, Civil Hospital, Thane and the reports dated 21.01.1997 would indicate that the Zonal Blood Testing Centre, Thane certified that the said blood was HIV Negative. Likewise, blood samples at serial nos.15,6,7 and 10 all O positive were also sent to the said Zonal Blood Testing Centre at Civil Hospital, Thane and their reports dated 21.01.1997 were received.
12. When complainants husband came to the opponents Blood bank, he had got referral note from O.P.no.2. The referral note contained blood group of the patient. O.P.no.1 as per usual standard practice, informed him that his wife was to undergo caesarean operation and hence two units of the blood was required. He informed complainants husband about appropriate pre-tests including test for HIV had been conducted on the blood sample units of the desired blood group of his wife, previously at his Blood bank, which was further confirmed by Zonal Testing Centre at Civil Hospital, Thane. He also told husband of the complainant that further tests were conducted at his Blood bank and also at Civil Hospital, Thane to negative the presence of HIV Positive in the blood samples being supplied for his wife. He also informed her husband that there was every possibility that donor could be under window period when the HIV test will show negative. He pleaded that when her husband came for seeking blood units for his wife, he had conducted 4 pre-tests i.e. 1) HIV by ELISA method 2) HBsAg 3) VDRL and 4) MP and did cross matching and thereafter only he had supplied blood units to the complainant by following standard procedure. He denied that first two units supplied to the husband of complainant and other two additional units supplied again on demand to her husband were infected with HIV virus. He pleaded that assuming that complainant tested positive after delivery, her condition indicates that she must have been infected much earlier before her delivery and her clinic picture is inconsistent with alleged HIV infection. He denied that complainant became HIV positive because of alleged contaminated blood transfusion given to her. He questions how her son could be HIV positive when the son was borne before the said blood transfusion, particularly when infection of the child through breast feeding has negligible chances of HIV virus contraction. He pleaded that it is accepted medical opinion that only a HIV positive pregnant woman can transmit HIV virus to the child in her womb and consequently after birth the child may be found HIV positive. He has denied all the allegations made against him and his Blood bank very stoutly and pleaded that complaint should be dismissed being without any merit. Some amendment was made by the complainant during the pendency of the complaint and same was further refuted by O.P.no.1 by filing additional written statement. In the additional written statement, he pleaded that Blood bank officer is duty bound to test the blood as required statutorily and to provide blood, which is free from disease for which blood is mandatorily required to be tested and this was done by O.P.no.1. He further pleaded that he had carried out all necessary tests on blood as required by Statute and thereafter matched the blood of his wife with the blood units to be given and when it was matching, then only two units of blood, free from disease, were supplied to the complainants husband and further two units were also additionally supplied at his request. Exhibit B, B-1, C, C-1 supplied to the complainant clearly indicated that the blood supplied was free from HIV positive and other diseases as mentioned in the certificates. He pleaded that Blood bank is a service section of medical profession and it is the duty of Blood bank officer to provide the blood of appropriate blood group, duly cross matched and tested before hand for the communicable diseases as made mandatory by law and to ensure that blood being supplied is free from the disease based on the results of the tests. He pleaded that he had conducted all the necessary required tests before giving 4 bags of blood to the complainants husband as per the request sent to him by O.P.no.2. He therefore prayed that complaint should be dismissed against him.
13. O.P.no.2 filed written statement and pleaded that only allegation made against him was that he had administered blood, which was brought by the husband of the complainant from O.P.no.1. He pleaded that administration of such blood brought by her husband from O.P.no.1 Blood bank cannot be an act of negligence so as to effect HIV positive status. In the complaint, he pleaded that complainants husband had already purchased blood from the certified Blood bank, which was free of HIV and other diseases and therefore, there was no question of checking the same by him again in his hospital before administering the same to the complainant. Thus certificate granted by O.P.no.1 on the blood units given to husband of complainant was sufficient for him to presume that it was a blood free from HIV virus and other diseases and therefore, he pleaded that no case of negligence of any kind can be made out against him. He also pleaded that there was no relationship between consumer and opponent because blood was not purchased from him and therefore, there cannot be consumer dispute between the complainant and himself which can be taken cognizance of by this Commission. He denied that in the circumstances, he is in no way answerable jointly and severally with O.P.no.1 for the HIV positive status of the complainant, consequent upon the caesarean operation performed upon her and the blood transfusion given to her in his hospital, which was done to safeguard the precious life of complainant. He pleaded that a person can be infected with HIV, but still his tests may not show as HIV positive for a period of about 1½ year to 2 years. This has been called as window period and if a person is in such a window period, he or she in spite of being HIV positive may not be declared as HIV positive for a period of 1-2 years, despite the test conducted to detect HIV positive status. He denied that complainant would be required to spend Rs.35,000/- per month as she had contracted HIV positive status. He admitted that ELISA test done on 17/7/96 did show that complainant was HIV negative, however that does not mean in July 1996, complainant was in fact HIV positive. It is entirely possible that even in July 1996, the complainant could have been in a window phase and as such, test showed in July 1996 as HIV negative in spite of she being HIV positive.
14. He admitted that he had admitted the complainant in his Maternity Home for delivery of the child. She was admitted in such bad physical shape that normal delivery of the lady was ruled out. Complainant was suffering from Anti Partum Hemorrhage (APH) and her physical health was not at all good. So normal delivery was not possible and therefore the opponent advised her to go in for Caesarean operation. He conducted Caesarean operation on the complainant and the baby was delivered. Since she suffered from APH, complainant lost lot of blood and as such some blood was required to be transfused immediately and had he not transfused the blood in that critical condition, she would have lost her life. Her blood count was below normal blood count and therefore, it was necessary to transfuse the blood to the complainant at the earliest. He therefore directed complainants husband to bring blood from any Blood bank. He pleaded that in fact complainants husband was not having monies and therefore, he himself gave Rs.2000/- to the husband of complainant to purchase necessary amount of blood for his wife (He mentions in the written statement that her husband subsequently returned the said amount to him). He denied that he had directed the complainants husband to purchase blood from O.Ps Blood bank. He told him that there was Blood bank at Ulhasnagar, at Dombivali and at Thane and he may bring blood from any of these Blood banks. Since Blood Bank of O.P.no.1 was nearest, the complainant's husband decided to approach O.P.no.1 and purchase the blood for his wife. He denied that he had ever induced the complainants husband to buy blood for his wife only from Blood bank of O.P.no.1. He denied that he had ever made phone call to O.P.no.1 in this behalf. He denied that husband of the complainant on bringing blood bags, requested him to test the same if it was fit for transfusion. He specifically pleaded that no such request was made by the husband of the complainant. He pleaded that certificates attached to the bags were clearly showing that the said blood was tested by the blood bank for HIV status and that it was HIV free. He pleaded that Doctor transfusing the blood has to do so by following the directions given on the certificate appended on the blood bags. Doctor who transfuses the blood cannot be expected to recheck the blood for the things, which have already been checked, verified and certified at the blood bank level. Therefore the person transfusing the blood only has to follow the instructions mentioned on the certificate and he did it accordingly and he was not negligent in any way when he transfused the blood in the body of the complainant. He pleaded that he had done his duty under the law properly and carefully and in no way he could be blamed to be careless and negligent in discharge of his medical duties, as such in treating the woman brought in his hospital. He denied that by virtue of breast feeding HIV could be passed on from complainant to her son, which is the main plank of attack made by the complainant against this doctor. He denied that complainant became HIV positive only after 4 units of blood were transfused in his hospital. He pleaded that whatever statutory notifications are in force, they are in respect of Blood banks and not in respect of Nursing Homes managed by Doctor like him.
15. He pleaded that HIV can be contracted by 3 routes i.e.blood transfusion, secondly inter course and from mother to child in the womb. He denied that breast feeding is also known to transmit HIV. He pleaded emphatically that HIV can be transmitted from mother to the child is only through the blood in the womb and not by any other means. He denied the hefty compensation asked for by the complainant from him and jointly with O.p.No.1. He denied that a person contracting HIV is likely to die within 18 years. He denied that complainants life has been infringed directly or indirectly on account of his alleged recklessness and negligence in transfusing blood to the complainant. He therefore prayed that complaint should be dismissed with compensation and cost.
16. Now the following issues would arise for our determination. Issues and our findings thereon are as under:-
Issue No.1: Whether O.P.no.1 proves that the blood supplied by his Blood Bank is not goods and therefore, consumer complaint as filed in this Commission is not tenable in law.
Finding: NO.
Issue No.2: Whether complainant proves that there was deficiency in service on the part of O.P.no.1 Dr.G in supplying HIV infected blood for consideration and thereby he was guilty of deficiency in service.
Finding: NO.
Issue No.3: Whether complainant proves that O.P.no.2 Dr.M is guilty of medical negligence in administering the blood to his wife in his hospital while performing the Caesarean operation on the complainant ?
Finding : NO.
Issue No.4: What order, if any?
Finding: Complaint stands dismissed.
REASONS :
Issue no.1: O.P.No.1 Dr.G is a Medical Practitioner and Sole Proprietor of Vishal Pathology Centre, & Blood Bank, New Road, Nehru Chowk, Ulhasnagar 421 002, District Thane. O.P.no.2 Dr.M is a Medical practitioner managing Maternity Hospital at Murbad Road, Kalyan. The complainant aged 27 years has married to Mr.Chandrakant Lad. She had first female child of 4 years and when she was pregnant for the second time, she had taken treatment in Dr.Mhaskars Hospital at Kalyan and O.P.no.2 was being consulted by her during her second pregnancy. On or about 20/1/97, she went for check up at O.P.no.2s hospital. Dr.M advised her to get admitted for delivery of her child. Around 6.00 a.m. she was in Labour room and she developed certain complications and Dr.M decided to perform Caesarean operation on her and her husband was directed to purchase blood for meeting emergency. The husband of the complainant approached O.P.no.1s Blood bank at Ulhasnagar. He purchased 4 units of blood matching the blood of his wife. Said blood was transfused to the complainant by O.P.no.2 Dr.M and it is the allegation of the complainant that she contracted HIV Positive because of blood transfusion administered or transfused by O.P.no.2 and supplied or sold by O.P.no.1s Blood Bank. This is in nutshell the case of the complainant against O.P.nos.1 & 2.
2. In the written statement O.P.no.1 specifically pleaded that blood cannot be said to be goods and therefore, this Commission has no jurisdiction to entertain and try such type of complaint. However, we are finding that complainant can be styled as Consumer under the definition of Section 2(1)(d)(i) & (ii) of Consumer Protection Act, 1986, because he had purchased blood from O.P.no.1 and hired services of O.P.nos.1 & 2 and paid consideration thereof. Service rendered by O.P.nos.1& 2 is covered under Section 2(1)(o) of Consumer Protection Act, 1986. In the case of Indian Medical Association v/s. V.P.Shantha (1995) 6 SCC 651, it has been held by the Supreme Court that medical professional providing services fall under definition of services under section 2(1)(o) of Consumer Protection Act, 1986. We are also impressed by the arguments advanced by Mr.Grover that blood is a drug as defined under Drug and Cosmetic Act and therefore, it is also covered under definition of goods within the meaning of Section of 2(1)(d)(i) of Consumer Protection Act, 1986. In the totality of the circumstances, looking to the allegations made by the complainant to file this complaint in this Commission, we are fully satisfied that this is a fit case of alleged medical negligence. This is a case of alleged deficiency in service. This is the case of alleged defective goods sold by O.P.no.1 and therefore, the complaint as filed with the sort of allegations made in the complaint is tenable in law and we are with complainants counsel to hold that this is a complaint entertainable and triable by this Commission as such consumer complaint. Objections raised by O.P.nos.1& 2 in this behalf cannot be upheld in the circumstances obtainable in our case.
We, therefore, record our finding on issue no.1 in the negative.
Issue No.2: Admitted position is that blood was purchased by husband of complainant for blood transfusion as suggested by O.P.no.2 Dr.M. Complainants wife was admitted in the hospital of O.P.no.2 and O.P.no.2 decided to have Caesarean operation of his wife. Complainant purchased 4 units of blood from O.P.no.1 and handed over the same to O.P.no.2. Though O.P.no.1 disputed the receipt of payment, it is the case of the complainant that he had purchased 4 blood units by paying Rs.3200/- from O.P.no.1s Blood bank. This has been stated on affidavit by complainants husband Mr.Chandrakant Lad, who had initially bought 2 units of blood from Vishal Pathology Centre & Blood Bank of O.P.no.1 by paying Rs.1600/-. Another two units were asked for by Dr.Vishal Mhaskar and he again bought 2 bags of blood by paying Rs.1600/- and the 3 units of blood were ultimately given to the complainants wife by O.P.no.1. In para 18 Mr.Chandrakant Lad specifically mentioned that Dr.M stated 4th unit would be given, if required. From the affidavit of complainants husband, it is crystal clear that he had purchased 4 units of blood from O.P.no.1s Blood Bank and 3 units of blood were given to the complainant at the time of Caesarean operation by Dr.M/O.P.no.2 in Dr.Mhaskars clinic at Murbad Road, Kalyan on 21/1/97. Now it is the contention of the complainant that this blood which was transfused to complainants wife by O.P.no.2 while performing Caesarean operation, was ultimately found to be HIV positive, because after 6 months his wife was tested for HIV Positive. It is the case of the complainant that while he was taking his wife for regular check up at the Maternity hospital of Dr.M before delivery, his wife had done routine check up and his wife was not having HIV Positive disease at any point of time. His elder daughter who is of 4 years was also free from HIV Positive disease, but it is only when she was given blood transfusion at the time of second delivery in the Hospital of Dr.M, in the course of performing Caesarean operation, she got infection of HIV Positive because of blood transfusion done by Dr.M/O.P.no.2 and that blood was supplied by O.P.no.1s Blood Bank of Ulhasnagar, District Thane.
Question is whether O.P.no.1 Dr.G who is Proprietor of Vishal Pathology Centre & Blood Bank of Ulhasnagar, was guilty of negligence or deficiency in service when he sold 4 blood units each of Rs.800/- to the husband of the complainant. Exhibit B, B-1, C & C-1 are the 4 documents showing that blood was given for L, patient having blood group of O Positive and it was given on 21/1/97 at the instance of Dr.M. The slips given B, B-1, C & C-1 mentions the blood supplied as O Positive from unit no.8,9,10,11 & 15 supplied by Vishal Pathology Centre & Blood Bank of Ulhasnagar. It was mentioned on these slips that the blood was free from VDRL, Aids, HBsAG, Malarial Parasites absent, HIV antibodies not detected. So there is conclusive evidence that 4 units of blood were supplied by O.P.no.1 from Vishal Pathology Centre & Blood Bank of Ulhasnagar and it was transfused to the complainant at the time of her delivery by O.P.no.2. The slips clearly mentioned that those blood units were free from HIV disease. It is the allegation of the complainant that the blood supplied by O.P.no.1 was contaminated. It was HIV positive, it was sold to complainants husband, who in turn gave those blood units to O.P.no.2 and O.P.no.2 transfused 3 blood units to the complainants wife. She sustained HIV positive disease. However, in the written statement, O.P.no.1 clearly mentioned that even if it is assumed that complainant was previously tested as HIV negative, there is window period of about 6 months and after screen test ELISA is performed, there can be a negative test though patient may be having HIV antibody and in case test is negative, it should be repeated after 3 months and again after 6 months.
According to O.P.no.1 even if there is negative test report, it could mean that patient may be in window period and window period lasts for 3-6 months following HIV infection and before window period lapses, the results can be either HIV negative or HIV positive. This applies to everybody. It was the case of O.P.no.1 that complainant was allegedly tested HIV negative on 17/7/96, but she had not gone for HIV test again after 3 months or 6 months prior to her delivery. O.P.no.2 did not advise her to repeat the test to confirm her HIV negative status. According to O.P.no.1 she could have contracted HIV Positive on or before 17/7/96, when she was allegedly tested HIV negative. But since she could have been in the window period on 17/7/96, her test showed results as negative, that does not rule out the possibility that the lady was not having HIV positive disease on 17/7/96.
As per complainant, method employed for HIV testing was rapid test, which was of low efficiency or sensitivity as per O.P.no.1. Therefore that was not reliable test as compared to ELISA test as recommended by Food & Drug Administration for screening for HIV.
O.P.No.1 also contended that as per guidelines, literatures given by manufacturers, HIVCHEK TM System 3 Test Kit mentions a negative test ought to have been repeated. Negative test per se does not exclude possibility by exposure to or infection with HIV I or II. So rapid test undergone by complainant was not conclusive proof to show that she was HIV negative on 17/7/96, but was found HIV positive 6 months after her caesarean operation done by O.P.no.2.
According to O.P.no.1, several factors are responsible for transmission of infection of HIV to any person. Such factors are, improper sterilization of equipment in an operation including caesarean, infected needles, infected sharp instruments, scalpels, razors, tattooing equipment, etc. HIV can also transmitted through unprotected heterosexual intercourse with an infected partner. There can be HIV infection by breast feeding too in respect of new born child of the complainant.
In respect of window period, there is ample literature available and nobody can be certain, whether a particular person is having HIV positive status though initially rapid test or ELISA test may suggest a person to be HIV negative, but he may still be HIV positive, if he is in window period, which can last upto 6 months.
According to O.P.no.1 procedure for collecting, storing and forwarding of the blood unit at his Laboratory and normally in all Blood banks is as follows:-
1.
Arrival of the donor
2. Medical history and clinical examination of the donor
3. Filing up of the Declaration Form by the donor as to his personal data and past medical history including blood donation/transfusion
4. Collection of the blood sample for the mandatory laboratory tests
5. Collecting blood from the donor on the same day, if found suitable following the laboratory tests
6. A sample of blood from the donated unit is then sent to the Government approved Zonal Blood Testing Centre to confirm the HIV status.
7. Proper labeling and storing of the blood unit in the Blood Bank refrigerator
8. If the Zonal Blood Testing Centre report is positive for HIV antibodies, then the said blood unit is sent to the same Zonal Blood Testing Centre for proper discarding of the suspect unit.
9. At no time any blood unit which is HIV positive is allowed to remain in the Blood Bank refrigerator for any longer period
10. On receipt of the requisition for blood, the said requisition is verified for its propriety.
11. The sample of blood brought along with the requisition is grouped and subsequently cross matched with the proper unit.
12. The blood unit is then packed in proper ice container with proper labeling, instructions and certificate with respect to its suitability for transfusion i.e. stating the blood group, the unit no., the date of collection, the date of expiry and its freedom from any sexually transmitted disease, including HIV, HBsAg and malarial parasites etc. All this information is provided in one form.
He also mentioned that no blood unit is stored beyond 21 days as its shelf life expires at the end of this period. He also mentioned that there is no opportunity for any Pathologist/Blood bank officer anywhere in the world to rule out the above described window period and Pathologist cannot compel the donor to come for a repeat HIV test. He pleaded that there is an unavoidable inherent risk of any donor being in the window period of which the donor, the referring doctor, Pathologist or Blood bank officer may not have any clue. According to him, results of HIV test conducted in his laboratory are always cross checked by sending the respective samples to Zonal Blood Testing Centre approved by the Government and in the instant case, managed by Thane Civil Hospital. Results given by this centre are considered final. In para 28 of his written statement, he had stated that blood samples from 09, 08, 11, 15 as per Exhibit B-1,B and C C-1were also sent to HIV Zonal Testing Centre for confirming in Civil Hospital, Thane and their report dated 21/1/97 in duplicate, certified that blood in the units was HIV negative and report to that effect was received on the same day. Likewise blood samples are at serial no.15, 6, 7 & 10 all O positive were also sent to Zonal Blood Testing Centre at Civil Hospital and their reports dated 21/1/97 were received, which are at Exhibits 8 & 9 dated 21/1/97.
O.P.no.1 also produced before this Commission some exhibits along with his written statement and affidavit. Exhibit 1 is HIVCHEK TM System 3 Test Kit. Exhibit 2 is the Government of India letter dated 14/12/91 approving plan of Blood Bank as submitted by M/s.Vishal Pathology Centre & Blood Bank, Ulhasnagar. It is issued by Assistant Drugs Controller (India), for Deputy Drugs Controller (India) West Zone, Bombay. Exhibit 3 is the actual plan and Exhibit 4, 5, 6, 7 are the inspection reports carried out by Drug Inspector & Assistant Commissioner, Food & Drug Administration Maharashtra State, Thane. Inspection reports are not showing any sort of procedural lacunae in the running of Blood Bank by O.P.no.1. Exhibit 8 & 9 are the units sent to Medical officer, Blood Bank, Civil Hospital, Thane. Blood was received for testing from Vishal Pathology Centre & Blood Bank, Nehru Chowk, Ulhasnagar-2. Serial number and unit numbers are given. Age of the donor is also mentioned. Blood group of the donor, sex of the donor was also mentioned and in all these reports, the blood units were found to be HIV negative. According to O.P. blood samples from Sr.nos.9, 8, 11 & 15 as per Exhibit B-1, B, C & C-1 respectively annexed to the complaint were also sent to HIV Zonal Blood Testing Centre, Thane and the reports dated 21/1/97 certified that blood samples were HIV negative. Likewise blood samples at serial no.15, 6, 7 & 10 all O positive were also sent to Zonal Blood Testing Center, Civil Hospital, Thane and their reports dated 21/1/97 were received as having HIV negative, which are marked at Exhibit 8 & 9 to the written statement. As per complainant, husband of the complainant had purchased blood unit nos.8, 9, 11 & 15 from Vishal Pathology Centre and Blood Bank. As per Exhibits 8 & 9, these 4 units were found to be HIV negative by Thane Zonal Blood Testing Centre. In the light of these exhibits and affidavit of evidence given by O.P.no.1, it is apparent that O.P.no.1 took all necessary precautions in collecting the blood from the donor, in getting it in his Blood bank in proper condition, in sending samples to Blood testing unit, Thane and in receiving confirmatory report from Zonal Blood Testing Centre, Thane and therefore, he cannot be said to have committed any act of medical negligence on his part. Fact that is alleged by the complainant that O.P.no.1 had not taken due and reasonable care is not at all established from the material placed on record by O.P.no.1. Pathologist or doctor is required to take reasonable due and proper care in respect of services rendered and when O.P.no.1 is establishing that he had taken all the due and proper precaution in the collection of the blood, in sending sample of the same blood to the Zonal Blood Testing Laboratory at Civil Hospital, Thane and in getting negative report about HIV status, he cannot be held to have committed any deficiency in service or any medical negligence in respect of blood units sold to the complainants husband herein. Assuming for a moment that some blood may be found to have been contaminated with HIV antibodies , that does not mean that O.P.no.1 failed in his duty to take due and reasonable care in respect of blood collected and sold by him to the complainant. Complainant examined some doctors.
Vishal Pathology Center and Blood bank has also produced voluminous record to prove that in his Blood bank he is taking all due and proper care in the collection of blood from the donors. He has produced on record the material to show that he had sent blood collected from donors to Zonal Blood Testing Center, Thane on the dates 19/1/97 and 20/1/97 and in all these cases of blood collection, Zonal Testing Laboratory certified that the said blood was HIV negative, after they conducted confirmatory test in that behalf. Various documents were produced from page 113 to 207 to show that Vishal Pathology Center & Blood Bank, Ulhasnagar is recording name of the donor, address of the donor, weight of the donor, Hemoglobin percentage of the donor, HIV status of the donor, history record of BTO and clinical investigation recorded by B.T.O. and it is also duly signed by Blood Testing Officer with a date and so from the record made available to before us, we are fully convinced that O.P.no.1 did his best and tried to follow norms about collection of blood laid down by Food & Drug Administration and Drug authorities of Maharashtra State. Inspection report also pointed out that the working of Vishal Pathology Center & Blood Bank run by O.P.no.1 was quite satisfactory and normal procedure as per norms was being followed by O.P.no.1 in the collection of blood, in the conducting of test, in procuring confirmatory report from Zonal Blood Testing Center, Thane and in selling or supplying blood units to the needy persons. Under these circumstances, Commission cannot jump to the conclusion that in any way O.P.no.1 was deficient in service or by supplying contaminated blood, he had resorted to unfair trade practice as is sought to be made out by counsel for the complainant in his written arguments.
Complainant has examined some doctors who are experts from the field in support of his contention that blood supplied by O.P.no.1 was per se defective. One Dr.Zarin Bharucha, who is Professor and Head of Department of Transfusion, Medicine, Tata Memorial Hospital has filed affidavit and there is no doubt that she is an expert in the field of blood transfusion. She has stated in her affidavit that while collecting blood, Blood Banks have to take certain precautions and to maintain the record. She produced certain documents from Tata Memorial Hospital to show as to how records are to be maintained. She stated in her affidavit that the blood collected by the Blood Bank is sent to Zonal Blood Testing center and if the blood is found to be HIV positive, then unit number is noted in a separate form, like Exhibit E and when this is a case, the blood bank is required to send the blood to the Zonal Testing Center for disposal. Exactly this has been done always by O.P.no.1 while collecting the blood in his Blood bank. She asserted in her affidavit that only one ELISA test is mandatory for ensuring safety of the recipient. She asserted that HIV test done in Blood banks are meant for safety of blood units /recipient and not for testing blood donors for their HIV status. She also admitted that for confirmation, one test is not enough. At present confirmatory tests are not carried out on the samples of blood from the units collected. She asserted that in Zonal testing center records are maintained according to unit number and corresponding donors name is not available in the Zonal Testing Center. She also stated that they take patients consent for transfusion as a part of general consent during admission and surgical consent prior to the surgery. So for giving blood by transfusion only general consent during admission of a patient in a hospital is required and not special consent, which is obtained only in the case of Caesarian. She stated that blood of an individual in the window period may transmit infection though it tests negative for HIV antibodies. However she admitted firmly that there was no study in India regarding the number of days an individual remains in the window period. She further stated that chances of acquiring HIV through blood transfusion are high. In fact 90% people get HIV infection by blood transfusion. In cross-examination she admitted that there is some possibility of HIV being transmitted through breast feeding i.e. from mother to child. She stated that if a person has contracted HIV before March any year, it may be detected in the test carried out in the July of the same year. She admitted that if HIV test is validly done by the Blood bank and also by the Zonal Blood testing center, it can be safely presumed that the result is negative. It is also a fact that in such a case, the person could be in the window period and the period mentioned by her from March to July is based on the literature on the subject and the studies conducted in the advanced countries, but with reference to the conditions prevailing in India.
In cross, she further admitted that when a Surgeon receives Blood bag with appropriate HIV negative label, the Surgeon is not expected to test the blood again for HIV. She went on to add that when a donor donates blood then the Blood bank conducts all the necessary tests and puts appropriate label on the blood bag. Acting upon the admission given by this witness, we are of the view that O.P.no.1 did not fail in his duty to take due and proper care in collecting the blood, in getting it tested from Blood Testing Center, Civil Hospital, Thane and then supplying the same to the husband of the complainant. What is required on the part of the medical profession is to take due, proper and reasonable care and in getting themselves satisfied beyond the shadow of any doubt. In the instant case, O.P.no.1 appears to have taken all due and proper care in collecting the blood and after cross matching it (after having been fully convinced from the report of Zonal Blood Testing Center, Thane), he sold them to the complainant (though his case is that he supplied the units free of cost). In the circumstances, in our considered view he cannot be blamed.
There is another affidavit of Dr.Rashid Merchant filed on behalf of the complainant. He is Dean of Bai Jerbai Wadia Children Hospital. He is also no doubt expert in the pediatric care and he has been involved in the area of mother to child transmission and HIV/AIDS since 1993 and has done 6 years research in that area.
According to him there can be HIV transmission through breast milk from mother to child. He says that risk of mother to child transmission of HIV ranges from 15 to 35% and is influenced by a number of factors such as the presence of high viral load and low maternal CD4, presence of P24 antigenaemia, etc. The risk of HIV transmission attributable to breast feeding is between 7% and 22%. He asserted that transmission of HIV from mother to child through breast milks is clearly possible. In the case of transmission from mother to child through breast feeding, transmission mainly occurs during the primary infection in the mother, when there is a high level of circulating virus and no HIV-1 antibodies present. In para 9, he asserted that HIV virus is present in the breast milk. The risk of post partum transmission of HIV through breast milk is as high as 28%. There are studies conducted in the west showing that HIV viral load in breast milk is higher when mother is recently infected and at the time of chances of HIV transmission to the child through breast milk is greater. In his evidence recorded before Mr.R.J.Purandare-Commissioner, he asserted that if HIV test shows negative in the case of pregnant mother, then there is no need to do such test again as they are highly sensitive test. He asserted that rapid ELISA test is equally informative, but normally rapid way of doing the Test. He admitted that in order to reduce window period transmission risk, it is necessary to have Donor Questionnaire Form filled. He also admitted that it is possible that a person may get major opportunistic infection within a period of 6 months. He was asked questions pertaining to complainant and he stated that since complainant had negative test during pregnancy and no other risk behaviour to explain that she could have got infection through any other source, and as she subsequently tested positive after blood transfusion, he had given his opinion accordingly. He stated that he had given opinion on the assumption that complainant was married person and was not having multiple partners. This assumption is based on his experience in dealing with HIV positive infected women in our Society and culture. He was asked a particular question that if a patient comes to him with HIV negative report taken 6 months earlier, would he conclude that even on the date on which patient has come to him he is HIV negative. His answer was he cannot come to that conclusion. He admitted that ideally two tests are required to confirm whether a patient is HIV Negative or HIV positive, preferably within a time spare of 2 months between the tests. Looking to the answers given by these witnesses, it can be safely said that his affidavit is no way helping the complainant to induce us to hold that in the instant case blood supplied by O.P.no.1 was HIV positive status and because of blood transfusion of the said blood by O.P.no.2, complainant received HIV positive status, when she was tested for HIV positive 6 months after her Caesarian operation.
There is another affidavit of Dr.Gangakhedkar, who supported case of the complainant. He is working as Senior Research Scientist at the National AIDS Research Institute at Pune. He is well qualified having Masters Degree in Public Health from Johns Hopkins University, Baltimore, USA. He had been working in the field of HIV/AIDS for about 9 years. In para 4 he testified that source of transmission in Indian Woman who are not sex workers in my experience is from their husbands and from blood transfusions. He testified further in para 5 that another important source of contracting HIV infection is blood transfusion especially since woman are more likely to receive blood during or after delivery. Transmission of HIV infection through breast milk can be in 14-29% cases. The risk is higher, if the mother has acquired HIV infection very recently. He further testified that blood donated for transfusion can be tested reliably by any HIV ELISA test, which last for three hours to determine whether blood is HIV positive or negative. However, such a test may miss cases, which are in window period. He added that risk of transmission after conducting ELISA test for HIV-1 & 2 on a blood unit is reported to be very low according to western studies. In para 12 of his affidavit, he testified that complainant seems to have got HIV from one of the 4 units transfused to her after her delivery and chances of the complainant transmitting the disease to her child through breast milk are high when the mother is recently infected. He opined that complainant may not have acquired infection from any source other than blood, because her husband is tested to be HIV negative and there was no recorded history of high risk behaviour on the part of the complainant.
In cross-examination he stated that in case of a married pregnant woman in India, he would not repeat test in case of HIV test being negative, except when if she is first tested in first trimester of pregnancy and sexual activity continues. In cross-examination he admitted that before the filing of affidavit dated 3/8/99, he had no occasion to examine the complainant. He admitted that HIV test during pregnancy is not mandatory in India. During 1997 in urban areas, viz.major cities, HIV test was normally advised in private sector. He admitted that Exhibit A to the complaint shows that O.p.no.2 has recommended HIV test of the complainant which was done on 17/7/96. He agreed with her statement made in cross-examination by Dr.Bharucha. He admitted that it is correct HIV CHEK SYSTEM is a rapid test and by a standard guidelines accepted world over, if the test result is non-reactive after single test then it is acceptable. However, if it is reactive, it needs to be repeated using a different HIV test. He admitted that it cannot be ruled out that negative test in HIV CHEK SYSTEM 3 may be because the patient is in a window period, but added that, that possibility is very remote. He admitted that in general in Indian Society men and women are reluctant to give true information regarding their sexual behaviour. In cross-examination, he categorically admitted that he cannot definitely say whether complainant was not HIV positive before transmission of blood. Nobody can say based on these tests that the person was definitely not infected. He also admitted that it is not possible to ascertain as to the mode of a person getting HIV positive infection. He fairly admitted that he could not conclusively state that in the present case HIV transmission to the child was exclusively through breast feeding. He further admitted that if the blood transfused is checked by the Blood bank and Zonal Blood Testing Center and is free from HIV, it can be presumed that it was free from HIV as per their regulations.
Even after going through the affidavit filed on behalf of the complainant and cross-examination referred to above, we are not convinced that in this case we can return the finding that complainant got infection of HIV positive from the blood units supplied by O.P.no.1 and transfused in the hospital of O.P.no.2 at the time of her caesarian operation. No doubt there is possibility, but since the experts have admitted that HIV infection can be had to any person by 3-4 different modes, simply because blood was transfused by O.P.no.2 from the blood units supplied by O.P.no.1, we cannot jump to a conclusion that O.P.no.1 had supplied blood, which was HIV positive and which blood was given to the complainant in the hospital of O.P.no.2. To give finding to this effect would be doing injustice to the O.Ps than doing justice to the complainant. When after 6 months post delivery, the complainant had been tested HIV positive, it would be hazardous to say that she contracted HIV infection only through blood units supplied by O.P.no.1 and transfused to her at the time of caesarian operation by O.P.no.2. Admissions given by expert witness in cross-examination also induce us not to give finding in favour of the complainant that she and her newly born child contracted HIV infection only through the blood supplied by O.P.no.1 and administered or transfused to her in the hospital by O.P.no.2.
In a case like this, there should be evidence that only by blood transfusion simplicitor, complainant got HIV positive status and by no other means, she could get HIV positive infection. We are of the view that in medical negligence cases, particularly HIV related matters, the duty is cast on the complainant to prove virtually beyond the shadow of any doubt that a lady in question got HIV infection only through blood transfusion and by no other means and there should be clinching evidence adduced on behalf of the complainant to rule out other modes of HIV infection. So simply examining 2-3 expert witnesses and saying by them in common refrain that complainant must have got HIV infection from the blood supplied by O.P.no.1 and transfused by O.P.no.2 is not sufficient in itself to give finding by us that the lady in question got infection of HIV only from blood transfusion, particularly when experts themselves admitted that there are 3 other modes of getting HIV infection, besides blood transfusion and also particularly when even the complainant tested HIV negative before delivery (pre natal clinical examination) might have been tested HIV negative owing to the fact that she might be in the window period. It is under these circumstances, we are of the view that it is hazardous and dangerous for us to record finding on the basis of available material on record that the complainant had got infection of HIV from the blood transfusion made at the maternity hospital of O.P.no.2 and that the said blood was supplied by O.P.no.1 having HIV infection.
So many rulings were placed before us by the complainant. One such ruling is of National Commission in which in the like case, National Commission recorded finding of medical negligence in the case of M.Chinnaiyan v/s. Sri Gokulam Hospital and another decided by National Commission in First Appeal no.50/99 on 25/9/06. Honble National Commission had recorded finding that patient had acquired HIV infection when she was operated at Sri Gokulam Hospital on 29/12/90. At that time she was administered two units of blood. The finding was recorded on the ground that consent of the patient only was taken for hysterectomy operation to be performed under general anesthesia and not for transfusion of blood. It is in the light of these facts, the National Commission was pleased to return finding of complainant having got infection of HIV from blood transfusion and accordingly, complainant was awarded compensation, which was denied by State Commission of Chennai. However, in our case facts are different. It has been admitted by experts that general consent obtained by doctors in India is for everything inclusive of blood transfusion and for surgery another consent is obtained. Here Dr.M/O.P.no.2 had obtained general consent and general consent includes consent for blood transfusion.
In para 9 of her affidavit, Dr.Zarin Bharucha clearly stated that they take patients consent for transfusion as a general consent during admission and surgical consent prior to surgery. So simply because Dr.M/O.P.no.2 had taken general consent, that does not mean that administration of blood or transmission of blood was without any consent. In the instant case, there was implicit consent taken by O.P.no.2 in view of the expert evidence of Dr.Bharucha and no special consent was required for blood transfusion done by O.P.no.2 while performing caesarian operation of the complainant herein.
Dr.Gangakhedkar has clearly admitted that he could not conclusively state that in the present case HIV transmission to the child was exclusively through breast feeding. He admitted that if the blood transfused is checked by the Blood bank and Zonal Blood Testing Center and it is reported to be free from HIV, it can be presumed that it was free from HIV as per their regulations. This admission of Mr.Gangakhedkar gave a death blow to the contention of the complainants Advocate that O.P.no.1 committed any medical negligence in not further testing the blood before he sold 4 blood units to the complainants husband. The blood collected by O.P.no.1 in his Blood Bank was sent to Zonal Blood Testing Center at Civil Hospital, Thane. In the usual course of official business and routinely, those blood units were tested at Zonal Blood Testing Center and that was found to be HIV negative. So whatever was required to be done under the regulation was done by O.P.no.1 and there is nothing on record to show that O.P.no.1 failed in his duty to take due care and precautions as are expected from a person having Blood bank at his command. In this view of the matter, we are of the view that there is no merit in the contention of the complainants Advocate that blood supplied by O.p.no.1 to the complainants husband was having HIV infection.
In all cases of medical negligence, courts are required to see whether doctors had taken due and reasonable precaution in the circumstances obtainable. In the case of Poonam Verma V/s.Ashwin Patel and others reported in (1996) 4 Supreme Court Cases 332, the apex court laid down the criteria as to how Medical Practitioners are supposed to take due and proper care to avoid charge of medical negligence on their part. Non-exercise of reasonable care and skill is essentially pre-requisite for holding Medical Practitioner guilty of medical negligence. The Honble Supreme Court approved the Maxims-Sic utere tuo ut alienum non loedas ( a person is held liable at law for the consequences of his negligence). In the said judgement dealing with medical negligence, the Supreme Court laid down the test for holding doctor guilty of medical negligence and reiterated what Supreme Court had laid down in Laxman Balkrishna Joshi (Dr.) V/s.Dr.Trimbak Bapu Godbole AIR 1969 SC 128: (1969) SCR 206. The Supreme Court also in the said ruling laid down that 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 Supreme Court approved Bolams case (1957) 2 All ER 118. In the judgement given in Bolam V/s.Friern Hospital Management Committee, McNair, J., while addressing the jury summed up law as under:-
The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill at the risk of being found negligent. It is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art. I do not think that I quarrel much with any of the submissions in law which have been put before you by counsel. Counsel for the plaintiff put it in this way, that in the case of a medical man, negligence means failure to act in accordance with the standards of reasonably competent medical men at the time. That is a perfectly accurate statement, as long as it is remembered that there may be one or more perfectly proper standards; and if a medical man conforms with one of those proper standards then he is not negligent.
Our facts when tested on the touchtone of the law laid down by the Supreme Court in the ruling mentioned Supra, will induce us to hold that the charge made against O.P.no.1 cannot stand in view of the Bolams test referred to in the Supreme Courts ruling mentioned Supra. O.P.no.1 had taken all the reasonable and proper precaution in collecting the blood, in testing it, in sending the sample of the same blood to the Zonal Testing Unit, Thane and then in keeping the blood units in proper custody till they were sold to the husband of the complainant. As per expectation of a reasonable and prudent man, he had done everything within his might and therefore he cannot be charged of medical negligence simply because taking worst case, it turns out later on that the blood units in question were HIV positive. This is we are mentioning on the basis of assumption not from the proved facts on record. So applying the test laid down in Poonam Verma V/s.Ashwin Patel and others, we are of the view that it is not possible for us to hold O.P.no.1 guilty of medical negligence in the circumstances obtainable in our case. We therefore record our finding on point no.2 in the negative.
Point no.3: As regards negligence of O.P.no.2 is concerned, there is virtually no evidence to prove that the said Dr.M can be held to be guilty of medical negligence. The same case law as mentioned above is applicable to the case of O.P.no.2. He had simply admitted complainants wife for delivery. He rightly opined that complainants wife needed to be operated, since her health was deteriorated one. He opted for caesarian operation with the consent of husband of the complainant. He asked husband of the complainant to bring 4 units of blood. Obviously, complainants husband was knowing that blood was required for his wife, who was being operated for delivery by Dr.M. Fact that without protest, husband of the complainant brought initially two bottles and subsequently two more bottles from the Blood bank of O.P.no.1 would go to show that he had given consent of blood transfusion to be done by O.P.no.2 in the course of caesarian operation of his wife. General consent was obtained by Dr.M and that general consent include consent for blood transfusion as has been testified in cross examination by Dr.Zarin Bharucha and others. The fact that the said blood was brought from O.P.no.1s Blood bank is not disputed. Question is whether Dr.M owed duty to again undertake ELISA test on the blood units brought from O.P.no.1 by the husband of complainant for his wifes caesarian operation? Our answer is resolute No. Dr.M owed no duty to subject the said blood units to ELISA test or other rapid tests prescribed for HIV detection, because the blood supplied by Blood bank had certified that it was HIV free blood. It is admitted by experts that when Blood banks certificate is there on the blood units that it is a blood free from HIV, it has got to be presumed that it was the blood free of HIV infection. In the circumstances, we are of the view that Dr.M was not duty bound to further recheck or retest the said blood units for HIV test before administering it to the complainants wife. Therefore whatever Dr.M did while doing Caesarian operation and transfusing three blood units brought by husband of complainant was the usual course of thing done in the ordinary course of business by any other similar placed Surgeon, who is undertaking caesarian operation. So if a Bolams test is applied or if test laid down by Supreme Court in the judgement mentioned Supra is applied, it is to be held that Dr.M is not guilty of medical negligence in any way and charge against him must be held to be baseless and it is only being made out just to extract monies from O.P.no.2. We have therefore no hesitation in holding that the complainant has failed to establish charge of medical negligence against O.P.no.2 also. We therefore record our finding on point no.3 also in the negative.
Before parting with the judgement, we may record the fact that we have not discussed all rulings cited before us because it would have consumed some pages more. We are deciding this case primarily on the basis of judgement delivered by Supreme Court and widely applied Bolams test and therefore, we confined ourselves to discuss only those aspects, which we found to be material in view of the facts and circumstances placed before us on record by rival parties.
In the circumstances, we pass following order:-
ORDER
1. Complaint stands dismissed.
2. Parties are left to bear their own costs.
3. Copies of the order be furnished to the parties free of cost.
(S.P.Lale) (P.N.Kashalkar) (B.B.Vagyani) Member Judicial Member President Ms.