HARPAL SINGH vs NEW RUBY HOSPITAL AND NURSING HOME PVT. LTD.

BRIEFLY stated the facts are that in the year 2000, complainant was detected to be a case of renal failure and was advised dialysis which was a temporary cure of the disease and as such he intermittently undergone dialysis in the year 2000 as well as in the month of June, 2001 and in the subsequent months in Christian Medical College & Hospital(CMC) Ludhiana- OP No. 2. At that time he was not found to be suffering from HCV disease (Hepatitis C Virus). One of such reports is Annexure C-1.

IT was next averred that since getting treatment from CMC, Ludhiana was very expensive, so, he approached OP No. 1 for dialysis. There also dialysis and clinical tests were carried out and he was never found suffering from HCV by OP No. 1. It was further averred that on 4.6.2001 he visited to get himself admitted with OP No. 1 for transplant of one kidney and before transplant of kindly, all tests were conducted and he was never found suffering from HCV disease. Consequently on 5.6.2002 his one kidney was transplanted and he was discharged on 22.6.2001 and in the discharge summary annexure C-2, he was shown as HCV negative. During the process of transplant, besides administering various medicines, he was given transfusion of blood as well.

It was further averred that in the month of June, 2002 he got himself admitted in the hospital of OP No. 2 CMC as he was suffering from piles and during investigation, he was found to be HCV positive by the doctors. The copy of the discharge summary of OP No. 2 is Annexure C-3. Thereafter, the doctors of CMC sought second opinion from Dr. Lal Path Labs Pvt. Ltd., New Delhi which in its report confirmed that the complainant was HCV positive. The copy of the report is Annexure C-4.

IT was next averred that OP No. 1 in the process of transplant of kidney had acted negligently and did not take proper care which resulted into infection culminating into HCV positive. On further inquiry, it transpired that he had infected this disease either during the operation of kidney transplant or on account of wrong blood transfusion by OP No. 1. The copies of the test reports are Annexures C-7 to C-15. It was further averred that he had spent more than Rs. 4 lacs on this infected disease and was rapidly inching towards death, although, he was earlier leading healthy life.

IT was next averred that according to his estimate, doctors of OP No. 1 were at fault but ultimately if it was found that OP No. 2 was equally responsible or only responsible then OP No. 2 is also liable to pay compensation. With these allegations, the complaint was filed on 4.6.2004 in the Punjab State Consumer Commission and claimed compensation of Rs. 50 lacs with interest @ 12% p.a. Subsequently this complaint was transferred to this Commission by order of National Commission. Opposite party Nos. 1 and 2 contested the complaint and filed separate written replies. OP No. 1 in its reply stated that when complainant was discharged from the hospital then report clearly showed that he was HCV negative. It denied that complainant was infected with HCV positive during his stay in the hospital. It next stated that complainant was given best treatment and successful operation for the transplant of kidney was performed and all the necessary precautions were taken before operation, during operation and thereafter kidney of complainant was functioning absolutely normal. It further stated that donor of kidney Surinder Singh was examined for the presence of any disease including HCV before transplant and all the results were normal and HCV was negative. The reports of pathologist are Annexures R-2 and R-3. The complainant was given 3 Plood transfusions during and after the surgery in the hospital and the blood was tested for HCV and was found to be negative, therefore, the allegation that HCV was transmitted during the operation or blood transfusion is false. It further stated that incubation period of HCV is 50 to 160 days and in majority of cases the period is 50 days as given in Harrison Principles of Internal Medicine Volume-2, 15th Edition page-1728.Therefore, contention of complainant that he developed HCV during kidney operation/blood transfusion was untenable. It further stated that it was difficult to pinpoint the source of infection because the disease could be transmitted through sexual intercourse. It next stated that there was intervening period of one year and during that period, he might have been treated by some other doctors and he might have got infection from sources like needles, syringes, injection used for medicines and blood testing and further there was no evidence that complainant ever visited the hospital of OP No. 1 after discharge. It denied other allegations.

OP No. 2 in its reply stated that it has been unnecessary dragged and in fact he was admitted in the hospital on 22.6.2002 and on 23.6.2002 he was found to be HCV positive and thus, he had received the disease HCV from some outside sources for which it was not liable.

PARTIES adduced their evidence by way of affidavits and documents. We have heard Counsel for complainant Mr. Dinesh Nagar, Counsel for OP No. 1 Mr. Vikram Aggarwal, Mr. B.L. Saini, Advocate and Mr. Ravison , Senior Law Officer for opposite party No. 2 and carefully gone through the file.

It is an admitted fact that complainant was detected to be case of renal failure. He had undergone dialysis of kidney in the year 2000 and in the month of 2001 from C.M.C. Hospital, Ludhiana. Before undergoing process of dialysis, relevant clinical tests showed that he was not suffering from HCV (Hepatitis C Virus) disease. The complainant had further undergone dialysis at OP No. 2 hospital from January, 2001 to June, 2001 and from all the tests performed upon him , he was found to be HCV negative. It is admitted position that the complainant was admitted in OP No. 1 hospital for transplant of one kidney which was transplanted on 5.6.2001 and was discharged from the hospital on 20.6.2001. A perusal of discharge summary Annexure C-2 shows that at the time of discharge, complainant was mentioned to be HCV negative, that means no disease was contracted by him from OP No. 1''s hospital.

IT is further an admitted fact that complainant got himself admitted in CMC, LudhianaOP No. 2 for operation of piles. During investigation, he was found to be HCV positive. The documents, whose copies are C-3 and C-4 prove this fact. The opinion of doctors of OP No. 2 was further confirmed by the laboratory of Dr. Lal Path Labs Pvt. Ltd. Annexure C-4 dated19.11.2002/21.11.2002. According to Medical jurisprudence, the HCV disease could be contracted from injection pricks, blood transfusion, kidney transplant operation, other transplant operations and multiple sexual involvement. There is no evidence on file that during the period 20.6.2001 to June, 2002 the complainant had not got tests done so many times and could not have contracted the disease due to injection pricks. He might have got blood transfusion from which he may have got disease. Further he may have been having multiple sex partners due to which he had contracted disease. Anyhow he has failed to prove that the disease had been caused by the doctors of OP No. 1 hospital. The complainant has not pointed out as to which specific act of doctors was negligent and how the disease was contracted. It is specifically mentioned in the discharge report of OP No. 1 hospital that the complainant was HCV negative.

THE reports of two blood donors whose blood had been given to the complainant and the report of donor whose kidney had been transplanted Annexures C-2 and C-3 showed that neither donor of kidney, nor, donors of blood were carrying Hepatitis C Virus. Thus, HCV neither could be transmitted from the donor of kidney, nor from the donors of blood. He has not examined any witness to prove negligence on the part of OP No. 1. THEre is a long period of one year from the date of discharge till the date of detection of the disease which has not been explained. It has not been averred in the complaint that during this period he did not undergo any tests, blood transfusion or multiple sexual activities. Thus, no negligence can be attributed to OP No. 1. Affidavits of Dr. Arjinder Singh, who transplanted kidney of complainant, Dr. Mrs. Babita M.D. Pathologist who had given transfusion of blood and that of Dr. Sanjay Mittal, Nephrologist also prove that there was no negligence on the part of OP No. 1. Further there is affidavit of Dr. Raguvindera Singh, Nephrologist of Jalandhar Nursing Home, Jalandhar to prove that there was no negligence on the part of OP No. 1. The affidavit of Dr. Basant Pawar, Professor and Head, Department of Nephrology, CMC, Ludhiana Annexure R-2 further proves that there was no negligence on the part of OP No. 2. No negligence can be attributed to OP No. 2 because he was admitted in the hospital of OP No. 2 on 22.6.2002 and was detected to be suffering from HCV on 23.6.2002 and that disease had not been contracted by him during stay of one day in the CMC Hospital, Ludhiana.

IT has been observed by Hon''ble Supreme Court in Jacob Mathew v. State of Punjab and Another, III (2005) CPJ 9 (SC)=122 (2005) DLT 83 (SC)=VI (2005) SLT 1=III (2005) CCR 9 (SC)=(2005) 6 Supreme Court Cases 1, that it must be shown that the doctor did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do so.

THEREFORE, OPs are not liable to pay any compensation. Accordingly the complaint is dismissed. Copies of this order be communicated to the parties, free of charge. Complaint dismissed.