The burden of proof lies on the complainant to establish medical negligence, and possibilities without conclusive evidence do not imply liability.

ORDER (Dt.17/02/2025)

Per Hon’ble Justice S.P.Tavade – President

1. Being aggrieved and dissatisfied with the order passed by the Ld.District Consumer Commission, South Mumbai in Consumer Complaint no.RBT/CC/2018/87 in CC/243/2009 dated 24/04/2019, the original complainants as well as all the opponents have preferred these appeals. Hence, both the appeals are being disposed of by this common judgment. The parties to these appeals shall be hereafter called and referred to as per their status in the original Consumer Complaint.

2. The complainant no.1 is a married woman having three children. The complainant no.2 is the husband of complainant no.1. At the time of operation of complainant no.1, she was aged about 53 years and complainant no.2 was aged about 63 years. The opponent no.1 is Bombay Hospital and Medical Research Centre. The OP no.2 - Dr.Dunghat P.B.Pai is the senior surgeon, who performed the surgical procedure of Hysterectomy, on 24/07/2007 on the complainant no.1 in the hospital of OP no.1. It is contended by the complainant that she was discharged from the hospital on 26/07/2007. After discharge, in the month of September 2007, the complainant no.1 found her skin was itching, her eyes were turning yellow, her urine had turned dark, her stools had become pale and she started suffering from influenza, aching joints and muscles, extreme tiredness, fever, lack of appetite and pain in the stomach. Due to the aforesaid symptoms, the complainant no.1 visited the clinic of family physician Dr.Prashant T. Mane, who asked her to carry out tests, such as, Complete Blood Count, Liver Function Tests, Routine Urine Analysis, Australia Antigen and other tests. Accordingly, the complainant no.1 underwent blood tests. She received the report of the blood tests, which she gave it to Dr. Mane. Dr.Mane went through all the abovementioned reports and immediately referred the complainant no.1 to a Specialist- Dr.D.N.Amrapurkar, who was attached to the Opponent no.1 hospital. Dr. Amrapurkar examined the complainant No.1 and asked her to undergo further blood tests. Accordingly, complainant no.1 underwent further tests and she received the report. The said test reports were examined by Dr.Amrapurkar, who to his utter surprise and dismay, informed the complainant No.1 that she had tested positive for HCV (i.e. Virus of Hepatitis "C"). The complainants were shocked to learn that the complainant No.1 had contracted the Hepatitis "C" Virus especially when she had recently been operated on 24/07/2007 in the hospital of opponent No.1. At the time of discharge from the opponent no.1 hospital on 26/07/2007, she had none of the viruses, such as, Hepatitis B, C or E or HIV.

3. Dr. Amrapurkar informed the complainant that the infection of the Hepatitis "C" Virus could only have been contracted at the time of the Surgery conducted on the complainant No.1 on 24.7.2007 for Hysterectomy at the opponent No.1 Hospital. Dr.Amrapurkar also said that due to Contamination at the opponent No.1 Hospital and due to the lack of cleanliness of the equipment used in the Operation theatre of the opponent No.1 Hospital during the Hysterectomy performed on the complainant No.1.

4. Dr.Amrapurkar further advised the complainant no.1 to undergo some more medical tests, viz. HCV, RNA Quantification (Viral Load), Liver Profile by dimension RXL, Urine test, Prothrombin Time and blood tests for Hepatitis C which reconfirmed the complainant’s worst fears that the complainant no.1 had become infected by the Hepatitis C virus, thereby lowering the immunity of her body, which could lead to her being pro