State Consumer Disputes Redressal Commission
1. Care Hospital M/S Quality Care India ... vs 1. Vemuganti Venu Gopal Rao And Others on 22 September, 2014
BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION: HYDERABAD. F.A.NO.488 OF 2013 AGAINST C.C.NO.866 OF 2009 DISTRICT FORUM-III HYDERABAD Between: 1. Care Hospital M/s Quality Care India Ltd., D.No.5-4-199, Jawaharlal Road Exhibition Grounds, Nampally, Hyderabad-1 Rep. by its authorized representative 2. Dr.G.Usha Rani Consultant Cardiothoracic Surgeon Care Hospital, 5-4-199, Jawaharlal Road Exhibition Grounds, Nampally, Hyderabad-1 Appellants/opposite parties no.1 and 2 A N D 1. Vemuganti Venu Gopal Rao S/o Seeetha Rama Rao, Aged about 71 yrs Manakondur Mandal, Karimnagar Dist. 2. Smt Vemuganti Anjali Devi W/o late Vemuganti Venu Gopal Rao aged 65 years, Occ: Houswife R/o Lalithapur Village Manakondur Mandal, Karimnagar District 3. Vemuganti Prasada Rao S/o late Vemuganti Venu Gopal Rao Aged 43 years, Occ: Pvt Service R/o o Lalithapur Village Manakondur Mandal, Karimnagar District (R2 & 3 added as per orders in FAIA NO.551/14 dated 10.04.2014 Respondents/complainants Counsel for the Petitioner M/s A.Srinath Counsel for the respondent M/s V.Gourisankara Rao QUORUM: HONBLE SRI JUSTICE GOPALA KRISHNA TAMADA, PRESIDENT AND SRI THOTA ASHOK KUMAR, HONBLE MEMBER.
MONDAY THE TWENTY SECOND DAY OF SEPTEMBER TWO THOUSAND FOURTEEN Oral Order ( Per Sri Thota Ashok Kumar, Honble Member.) ***
1. The opposite parties are the appellants. For convenience sake the parties as arrayed in the complaint are referred to hereunder.
2. The brief facts of the complaint are that one Vemuganti Venu Gopal Rao i.e., the complainant was suffering from the heart problem approached the opposite party no.1 hospital on 24.05.2008 and after examination the second opposite party advised to undergo surgery for aortic valve replacement. The complainant was admitted on 27.4.2008 in the opposite party no.1 hospital for surgery but due to development of delirium he was put on antidepressant drugs and postponed the surgery. Again on 13.06.2008 the complainant was readmitted and the second opposite party performed surgery on 19.06.2008 by replacing the aortic valve. On 4.7.2008 the complainant was discharged from the hospital.
Thereafter on 13.09.2008 the complainant visited R.Srinivas MDDM, Srinivasa Heart Centre Hanamkonda with the complaint of ulcer in the mouth and when there is no response he visited Dr.UV Vishnuvardhan Reddy, Karimnagar who referred the complainant to undergo screening test for HIV I & II. The HIV test report dated 2.10.2008 revealed that the result was reactive for HIV-I. Later it was confirmed by M/s Thyrocare Technologies Limited after testing the blood sample in western block method. The complainant came back to the opposite party no.1 hospital on 18.12.2008 and contacted the doctors who further advised him to undergo further tests and since the complainant had no money he did not undergone any further tests. It is the contention of the complainant that before aortic valve replacement the opposite parties conducted all the necessary investigations including HIV Test and found to be negative. During the surgery the attendants of the complainant donated 6 units of blood and the opposite parties have taken blood samples from the donors and transfused the same to the complainant. The complainant never underwent any further blood transfusion at any other place subsequent to his operation at the opposite partyno.1 hospital. As such, it is clear that HIV infection developed in the complainant was only because of blood transfusion taken place at opposite party no.1 hospital which was not properly tested. On account of the negligence of the opposite parties the complainant has to suffer with HIV infection in his blood and therefore prayed to direct the opposite parties to pay `15 lakhs towards compensation and costs.
3. The opposite parties resisted the case contending that the factum of the blood being taken from the attendants of the patient is true but the same was not used on the patient since the surgery was postponed. At the time of surgery, only screened and matched blood would be transfused on any patient and the reason for not transfusing the blood of attendants of the donor in the instant case was the postponement of the surgery by a period of two months. The opposite parties have done no wrong in the matter and thus prayed for dismissal of the complaint.
4. The complainant filed evidence affidavit reiterating the contents of the complaint and marked Exs.A1 to A46. On behalfof the opposite parties, Dr.Raghava Reddy, Blood Bank INcharge filed his affidavit and got marked Exs.B1 to B5.
5. Having heard both sides and considering the material on record the District Forum vide impugned order allowed the complaint directing the opposite parties to pay `5 lakhs towards compensation and costs of `2,000/- to the complainant.
6. Feeling aggrieved with the order of the District Forum, the opposite parties filed the appeal maintain contended that the complainant failed to show any evidence to suggest that there has been deficiency of service on the part of the opposite parties. The blood donated earlier by the attendants of the patient on 30.04.2008 was not used on the patient as the patient has urinary tract infection with hyponatremia and the surgery for replacement of aortic valve replacement was postponed and performed on 18.06.2008. The opposite parties following all the protocol and cross matched the blood samples before it was transfused to the patient required to be followed in the process of performing the surgery to the complainant. The District Forum failed to appreciate the affidavit filed by the In charge doctor of blood bank who has enormous experience and also the relevant documents.
7. During the pendency of the appeal, since the complainant died and his LRs i.e., wife and son have been impleaded as his legal heirs vide its order dated 10.04.2014 in FAIA 551 of 2014.
8. Heard both sides with reference to their respective contentions in detail.
9. Now the point for consideration is whether the order of the District Forum is vitiated either in law or on facts?
10. The facts beyond any dispute are that the complainant was admitted in the opposite party no.1 hospital to undergo surgery for replacement of aortic on 19.06.2008 and he was transfused with blood by the opposite parties and he was discharged on 4.7.2008 from the hospital.
11. Subsequently, the complainant visited Dr.UV Vishnuvardhan Reddy Karimnagar who referred the complainant to undergo screening test for HIV I & II and found him infected with HIV positive which was confirmed by M/s Thyrocare Technologies Ltd., Mumbai by Western Block Method. The learned counsel for the LRs of the complainant has submitted that the opposite parties subjected the complainant to medical tests before aortic valve replacement surgery and found HIV negative. The learned counsel for the opposite parties has contended that the blood donated by the attendants of the complainant was not used on the patient since the surgery got postponed and the blood samples in the 1st three cases was screened for HIV on 18.06.2008 and for the remaining two cases the same was done on 16.6.2008 at the time of blood donation and the same were also cross matched and transfused to the patient and that the opposite parties had taken all precautionary measures by subjecting the donor and the blood to the screening test and there was no deficiency in service on the part of the opposite parties.
12. As rightly observed by the District Forum, the opposite party no.2 in her written version furnished the details of blood transfused to the patient on 19.06.2008 as follows:
1. Blood bag No.948 dated 18.06.2008
2. Blood bag No.952 dated 18.06.2008
3. Blood bag No.956 dated 18.06.2008
4. FFP Blood bag NO.913 dated 16.06.2008
5. FFP Blood bag NO.919 dated 16.06.2008
13. Ex.B1 Blood Cross Matching Register discloses that the blood cross matching of the complainant was done with blood bag Nos.948, 952, 956, 969, 970 and 971 and as per the admission of the opposite party no.2 the blood bag NOs.948, 952 and 956 were cross matched with the complainants blood and the same were used for transfusion to the complainant and other blood bags NO.969, 970 and 971 were though tested and cross matched the same were not used and instead the blood bag Nos.913 and 919 have been used. It was the duty of opposite parties to examine the blood to come to a conclusion that it does not contain any HIV infection. The transfusion of the blood to the patient is not in dispute. Obviously, there is a sheer medical negligence on the part of the opposite parties in not examining and ensuring that the blood does not contain any HIV infection. It is a matter of common knowledge that it is a very serious disease and a person having this ailment cannot survive long and certainly he and the family members will be subjected untold mental agony etc.
14. The Supreme Court in Post Graduate Institute of Medical Education & Research, Chandigarh vs Jaspal Singh & Ors. In CIVIL APPEAL NO. 7950 OF 2002 decided on 29.05.2009 held that :
23. The State Commission observed:
"..... that there has been serious deficiency and negligence on the part of the PGI and its 12 attending doctor(s)/staff for transfusing wrong blood group to the patient which caused death of the wife of complainant No. 1. Mismatching of blood has been confirmed by the Senior Resident in the Death Summary also (Annexure C/7). Once the patient is brought to the PGI or any other Institute of Health Care, the back-ground/History, if any, for example that the patient was maltreated by the husband, does not absolve the Hospital from its professional obligation... ..."
24. Affirming the aforesaid view of the State Commission, the National Commission held thus:
"..... It is seen that the patient's kidney was damaged and the blood level reached to 100 gms. percentage, hemoglobin came down to 5 mg. after the mismatched blood transfusion was given by the Doctor in the said Hospital. It was only after the Complainant gave the written complaint to the hospital regarding the wrong transfusion of blood given to the patient, an inquiry was made and it was found correct. The damage control treatment started only after the written complaint was given by the complainant. Though it is argued by the Counsel for the Appellant that the percentage levels were brought down to normal, it is very clear to us that the internal imbalances of liver and kidney functioning and deteriorating hemoglobin levels started only after the mismatched blood transfusion was given. Though septicemia has been written as the ultimate cause of death, the patient's health took a nose dive only after wrong blood was given to her and this is clearly negligence on the part of the Doctors of the Hospital which the appellants cannot disown or absolve themselves...."
25. We concur with the view of the National Commission as it does not suffer from any error of law.
15. The above decision shall be kept in mind while disposing of the appeal while appreciating the facts of the case.
16. It was incumbent on the part of the doctor who transfused the blood to a patient, after screening it for HIV and if it is done, there is no medical negligence. However, not adhering to it, will tantamount to medical negligence. In the case on hand the opposite parties transfused the blood bag NO.s913 and 919 instead of blood bags no.969, 970 and 971 though they were tested and cross matched with the blood of complainant. There is no evidence that the blood bags no.913 and 919 that were transfused to the complainant are not contaminated with HIV virus. The defence of the opposite parties is that the blood was tested and that there was no HIV infection in the blood bags no.913 and 919. There is no evidence showing that the blood bas as stated in the written version are only used for transfusion to the complainant.
There is a risk of error in each process in transfusion chain and failure at any of these stages can have serious implications for the recipients of the blood. In the present case there can be no chance of the complainant contracting with HIV through other means after the surgery. Since the patient was aged 71 years there was no probability of HIV due to sex. The District Forum called for the medical expert opinion of the team of Doctors from Osmania General Hospital, Hyderabad where a committee has been constituted and it gave a report wherein it was observed that it is very much possible to acquire HIV if safe blood transfusion is not given. However, the CD4 count will not fall to so low in a span four months and ten days. As per the literature the incidence of false negativity of Elisa is 0.003% which cannot be ruled out. Hence we opine the possibility of HIV positive status of the patient before surgery. By the said report it is either way negligence on the part of the opposite parties that if the complainant had already contracted with HIV positive before the surgery the opposite parties did not conduct the HIV tests properly and conducted the surgery on the HIV patient or if the complainant got HIV positive after the transfusion of infected blood in both ways the opposite parties are negligent in performing the operation.
Had the complainant known about the said disease prior to the surgery he would not have spent such huge amount by undergoing surgery with the opposite parties. Obviously, there is a sheer medical negligence on the part of the opposite parties in not examining and ensuring that the blood transfused does not contain any HIV infection. The complainant has filed the ample evidence that on account of contaminated blood, contains the HIV infection, and thus he became a patient of HIV positive and died during the course of pendency of the appeal. In such circumstances the evidence of in charge doctor of blood bank is not helpful for the opposite parties.
17. The counsel of the opposite parties submitted the following decisions in support of their case.
1. I(1995) CPJ 220 in T.Hareendran Nair Vs Dr.P.Ashokanair of the Kerala State Consumer Disputes REdressal Commission.
2. III(1994) CPJ 237 in SMN Consumer Protection Council and another Vs Ganga Hospital and another of the Tamil Nadu State Consumer Disputes REdressal Commission.
3. I(1998) CPJ 124 of the Tamilnadu State Consumer Disputes Redressal Commission.
18. The above decisions have no bearing over the present case and that apart they were rendered by different State Commissions which are not binding on this Commission.
19. It has been very clearly established by the complainant on the basis of the documentary evidence that there is sheer medical negligence on the part of the opposite parties. It is a matter of common observation that it is a very serious disease and the complainant has subsequently died of the said disease. We see no reason to interfere with the order of the District Forum and therefore the appeal is liable to be dismissed confirming the order of the District Forum.
PRESIDENT MEMBER Dt.22.09.2014 కె.ఎం.కె.*