Judicial Analysis Court Copy Headnote Facts Arguments Court observation

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
AVM J. Rajendra, AVSM VSM (Retd.), Presiding Member
Dishari Health Point and Anr. – Petitioners
versus
Doyojan Bibi and Ors. – Respondents
Revision Petition No.13 of 2023
(Against the Order dated 26/09/2022 in Appeal No. 43/2021 of the State Commission West Bengal)
Decided on 16.8.2024

Counsel for the Parties:
For the Petitioners:Mr. Abhik Kr. Das, Advocate (Through VC)
For the Respondent No.1:Mr. Amar Nath Gupta and Mr. Santosh Kumar Sahu, Advocates
For the Respondent Nos.2 and 4:Ms. Madhumita Bhattacharjee, Advocate
For the Respondent No.3:Mr. Tavish B. Prasad, Advocate

IMPORTANT POINT
Medical Negligence – Screening test for HIV non-reactive requires specific confirmation – No deficiency in service or medical negligence.

Headnote:
Consumer Protection Act, 2019 – Section 58(1)(b) – Medical Negligence – Deficiency in Service – Compensation for treatment & harassment & mental agony & costs – Non-entitlement – Complainant-OP2 declared as HIV non-reactive – Test itself was for screening & it requires specific conformation, for any action or treatment to commence – While patient & relatives may have been affected, it is part of treatment & no medical negligence or deficiency in service established merely based on raising a flag with respect to one of the tests, which is also clarified that the results need to be correlated – It is normal for a patient to be worried about such reports – Such bonafide report by itself does not give rise to any cause of action for negligence or deficiency in service – SC failed to appreciate these aspects & fact that HIV report format prescribed by National Aids Control Organisation (NACO) was correctly followed by OP-2 & final conclusion was clear, non-reactive – OP-2 cannot be held liable for mental agony of complainant due to said test report – Suggestion of OP-2 for a follow-up test after four weeks was as per medical norms, acknowledging the potential for false positive & false negative results, as mandated by NACO guidelines – For negligence to be established, there must be a direct nexus between the alleged breach & resulting injury & facts of this case do not establish any such connection – OP-1 & 2 cannot be held liable for any negligence or deficiency – Findings of SC & District Forum set aside. (Paras 12, 13, 14 and 15)
Result: Complaint dismissed.

ORDER

This Revision Petition has been filed under Section 58 (1)(b) of the Consumer Protection Act, 2019 (the “Act”) against impugned Order dated 26.09.2022, passed by the State Consumer Disputes Redressal Commission, West Bengal (‘State Commission’) in First Appeal No. 43 of 202. In the impugned Order, the State Commission allowed the complaint and modified the decision of the District Consumer Disputes Redressal Forum, Malda (‘hereinafter District Forum’) dated 23.11.2021 in CC No. 35/2018.

2. For convenience, the parties are referred to as placed in the original Complaint filed before the District Forum. The Petitioners, Dishari Health Point and Dr. Krishendu Das are referred as OP-1 & 2 respectively. While the Respondents, Mrs. Doyajan Bibi; Chief Medical Officer of Health Office, Carmichael Hospital for Tropical Disease; and National Institute of Mental & Neuro Science are referred to as the complainant, OP-3, OP-4, and OP-5 respectively.

3. Brief facts of the case, as per the complaint, are that she was admitted at OP-1 Nursing Home on 26.11.2017, for treatment of fever and weakness. Dr. Sharma, purporting to be the proprietor, assured her and her husband of the facility’s high standards asserting that it provided best medical care in the state, equipped with high-quality equipment and globally renowned pathologists. Upon admission, numerous tests were conducted at considerable expense. Later OP-1 hospital demanded her immediate discharge alleging that she was HIV positive and necessitated relocation for safety reasons. When her husband sought details of the tests and the diagnosing doctor, they refused to provide any information. She and her husband were coerced to sign on some blank papers. The discharge summary and HIV report, signed by OP-2 indicated that she had AIDS. Distressed by this diagnosis, she was went to Carmichael Hospital for Tropical Diseases (OP-4) in Kolkata, where further tests on 27.11.2017 confirmed that she was not HIV positive. Subsequently, she was treated for fever and other symptoms. It is the complainant’s case that due to the negligence of OP-1, she suffered severe distress and lost her mental balance, necessitating treatment at the National Institute of Mental Health and Neuroscience (OP-5) at Bangalore. Thus, she sought compensation of Rs. 15,00,000 for treatment costs and Rs.3,00,000 for harassment and mental agony and costs.

4. In their written version, OP-1 & 2 denied all material allegations levelled against them and contended that the instant case was not maintainable. They denied any deficiency in service or unfair trade practice on their part. The complainant was admitted to Dishari Health Point on 26.11.2017, as a referred patient and was served with the utmost sincerity and care. Prior to her admission at Dishari Health Point, she was admitted to Malda Medical College & Hospital, Apollo Nursing Home, Malda, and Mangalbari Nursing Home. She was brought to Dishari Health Point for further management with a history of fever lasting 10 to 12 days, under the consultation of Dr. SU Roy. OP-1& 2 treated her carefully as evidenced by the treatment sheet, which had the details of the diagnosis and treatment rendered. Complainant was then advised to be referred to the School of Tropical Medicine for further management.

5. The learned District Forum vide Order dated 23.11.2021, allowed the complaint with the following finding:

“Now the main point to be considered is whether there was any negligence on the part of Dishari Health Point or not?

On perusal of the diagnosis report it is found that the final diagnosis was done as HIV 1 & 2 Antigen Reactive. But the report of Carmichael Hospital shows that specimen is negative for HIV ante bodies. Can it be said that the medical tests were done by Dr. K. Das who is an M.D. with due care and used best care of his skills and ability if the report of Dr. K. Das was done with due care and using best of his skill then it must be same with the report