State Consumer Disputes Redressal Commission
Suresh Kumar Son Of Sh. Dharam Singh R/O ... vs Pt. B.D. Sharma Post Graduate Institute ... on 10 December, 2012
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA, PANCHKULA Complaint No. 16 of 2009 Date of Institution: 11.6.2009 Date of Decision: 10.12.2012 Suresh Kumar son of Sh. Dharam Singh R/o H. No.359 Village Shekhpura, Tehsil Ganaur, District Sonepat. Complainant VERSUS Pt. B.D. Sharma Post Graduate Institute of Medical Sciences, Rohtak through its Director. Opposite Party. BEFORE:- Honble Mr. Justice R.S. Madan, President. Sh. B.M. Bedi, Judicial Member.
Present:- Mr.Manoj Dhanikar, Advocate for Complainant.
Mr.Ramesh Hooda, Advocate for Opposite Party.
O R D E R:
B.M.BEDI, JUDICIAL MEMBER:
In brief, the facts of the present complaint are that complainant was working as driver and getting salary of Rs.4000/- per month. The complainant felt pain in his stomach. Thereafter, the complainant went to PGIMS, Rohtak where doctors advised him for operation due to rupture of liver. The complainant was admitted in PGIMS, Rohtak on 11.4.2008 and his blood test and other required tests were conducted on 12.4.2008. As per the investigation, report of the blood test for HIV was negative and complainant was not suffering from HIV virus as was clear from the investigation report dated 12.4.2008 of PGIMS, Rohtak. Six units of blood were given to the complainant at the time of his operation. The complainant was discharged from PGIMS, Rohtak on 7.5.2008.
Thereafter, complainant continued to suffer from the ailment and was re-admitted at PGIMS, Rohtak on 11.5.2008 and was discharged on 21.5.2008. It is further averred by the complainant that despite taking all the medicines and balanced diet, he never felt well. Thereafter, complainant got himself examined from Ram Manohar Lohia Hospital, New Delhi where doctors advised various tests including the blood test HIV. On 18.11.2008 Medical Officer of Ram Manohar Lohia Hospital, New Delhi informed the complainant that he was suffering from HIV virus, therefore, the body of the complainant was not responding to the medicines. According to the complainant he had been administered HIV infected positive blood at PGIMS, Rohtak at the time of his operation. Thus, alleging it a case of deficiency in service and medical negligence on the part of the OP, the complainant invoked the jurisdiction of this Commission by filing the present complainant seeking compensation from the Ops.
Upon notice the opposite party appeared and contested the complaint by filing written reply taking the plea that all the services have been rendered by the OP free of charge/cost to the complainant and as such the present complaint was not covered under the ambit of the Consumer Protection Act, 1986. It is further pointed out by the OP that complainant got himself examined from Ram Manohar Lohia Hospital, New Delhi on 18.11.2007 and not on 18.11.2008 as reflected from the registration card of the complainant. The doctor had mentioned in the history of the case that the patient is with private HIV detection report counselled for testing from ICTC and Healthy Life Style. It means that the complainant was having HIV positive report and therefore was referred to Integrated Council and Testing Centre which was only meant for testing of HIV patient.
It is further submitted by the OP that complainant was already carrying reports of HIV Positive (by test from private practitioner), of himself and his spouse and was then referred to their own Integrated Council and Testing Centre for counselling. As per Annexure A-4 complainant was having some skin disease also at that time, for which he was referred to the skin department. This amount to gross willful concealment of his disease records which proves beyond doubts that before visiting at PGIMS, Rohtak he was HIV+ve 6 months back. OP is not responsible for HIV infection (HIV positive) to the complainant because there are so many other reasons for HIV infection i.e. (i) infected syringes (ii) sharing of razors (iii) transfusion of blood from any other places and (iv) unsafe sex etc. As the complainant is driver by profession and have to usually visit in prone areas, so he falls in High Risk Category as mentioned in the Parks Text Book of Preventive and Social Medicine. It was admitted by the OP that complainant was admitted at PGIMS, Rohtak on 11.4.2008 with diagnosis of liver abscess. He was investigated and HIV was found Non-Reactive. On 15.4.2008 he was diagnosed as ruptured liver abscess by Surgery Department and was transferred to Ward No.4/11 on 16.4.2008. During treatment he was given six unit of blood.
He was discharged on 7.5.2008 under stable condition. As per Annexure A-4, the complainant was already HIV positive before his admission in the PGIMS, Rohtak on 11.4.2008. The complainant failed to produce on record the result of test which was conducted by Ram Manohar Lohia Hospital, New Delhi for HIV test. It was further pleaded by the OP that before the supply of the blood from the Blood Bank Department of the PGIMS, Rohtak, each and every unit of blood and blood components supplied from the blood bank are always screened/tested for HIV, Hbs AG, HCV, VDRL and MP as per guidelines of Drugs and Cosmetic Act and Honble Supreme Court of India. So, question does not arise that the complainant got HIV virus infection during his treatment by the OP. While denying any medical negligence and deficiency in service they prayed for dismissal of the complaint.
Complainant in his evidence tendered his affidavit as EX.CW1/A along with documents Ex.C1 to Ex.C4 and closed evidence on 25.10.2011.
On the other hand, opposite party tendered affidavit of Dr. Bimla Rathi, Senior Medical Officer as Ex.RW1/1 along with documents Ex.R1 to Ex.1/10 and affidavit of Rakesh Kumar as Ex.RW2/2 along with the documents Ex.R-11 to Ex.R13 and closed its evidence on 22.11.2012.
We have heard the learned counsel for the parties and perused the case file.
It is not disputed that the complainant got himself examined from Ram Manohar Lohia Hospital, New Delhi on 18.11.2007. This fact is established from the registration card of the complainant. The case history of the patient establishes that it was a case with private HIV detection counseled for testing from ICTC and Healthy Life Style. In other words, the patient was having HIV positive and for that reason he was referred to Integrated Council and Testing Centre, only meant for testing of HIV patient. As per Annexure A-4 (OPD Registration Card) patient was suffering from skin disease. Annexure R-1 to Annexure R-9 record pertaining to the treatment of complainant from Pt. B.D. Sharma P.G.I.M.S. Rohtak, reflects that before visiting at PGIMS, Rohtak he was HIV+ve 6 months back. During treatment he was given six unit of blood. Each and every unit of the blood was transfused to the complainant after necessary tests in accordance with the medical norms/procedure. The patient was discharged on 7.5.2008 under stable condition. The complainant has failed to produce on record the result of test which was conducted at Ram Manohar Lohia Hospital, New Delhi for HIV test. Opposite Party placed on file record of Testing of blood for various factors including HIV, of each unit of blood supplied to complainant. Thus, under the facts and circumstances of the case and the evidence available on the record, no cogent and convincing evidence has been produced by the complainant he got HIV virus infection during his treatment by the OP. Mere version of the complainant without any supporting/corroborating evidence cannot take the shape of proof. None of the ingredients, reproduced herein below, settled by Honble Supreme Court in case of Kusum Sharma and others versus Batra Hospital & Medical Research Centre and others, 2010 ACJ 1444, have been proved on the record by the complainant:-
(1) Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.
(II) Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.
(III) The medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires.
(IV) A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
(V) In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.
(VI) The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence.
(VII) Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.
(VIII) It would not be conducive to the efficiency of the medical profession if no doctor could administer medicine without a halter round his neck.
(IX) It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessary harassed or humiliated so that they can perform their professional duties without fear and apprehension.
(X) The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals/hospitals particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners.
(XI) The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals.
In view of the above, we do not think it a fit case to hold the opposite party for any kind of medical negligence and deficiency in service. The medical complications cannot always lead to an inference of medical negligence.
Hence, this complaint is dismissed being devoid of any merit.
Announced: Justice R.S. Madan 10.12.2012 President B.M. Bedi Judicial Member