S. MURALIDHAR vs BASAPPA MEMORIAL HOSPITAL

THE complainants have filed this complaint claiming damages of Rs. 10,00,000/- from O.Ps. alleging negligence in the treatment.

THE facts in this case are follows : THE complainant-I approached O.P. 1 for treatment for the fracture which he suffered in the accident on 31.12.1995. O.P. 1 advised the complainant-1 to get himself admitted in the said hospital for treatment. On the said advice the complainant-1 got himself admitted as in-patient in O.P. 1 hospital on 31.12.1995. On 2.1.1996 O.P. 1 directed complainant-1 to bring his close relatives to donate blood since the complainant blood group was found to be ''O'' positive. Accordingly the complainant had brought 4 persons by name Adishesha, Ganesha, Sathyanarayana and Sridhar whose blood group was found to be ''O'' positive as per the pathology report given by O.P. 1 hospital. THE blood drawn from the above 4 persons was transfused into the body of the complainant-1 when he underwent an operation on 3.1.1996 of his right thigh and K-nailling with bone grafting. Immediately thereafter, the com-plainant-1 developed jaundice and, therefore, he could not be operated on his right arm in O.P. 1 hospital. The complainant-1 was discharged on 16.1.1996 on the advice of O.P. 1.

On 9.2.1996 the complainant-1 and his family members noticed that pus was oozing out from the wound where the operation was conducted on his right thigh. Immediately thereafter, the complainant was admitted to J.S.S. Hospital for further treatment. The JSS Hospital on X-ray found that the bone was not properly set and he was advised to undergo medical operation to set it properly. Before operation as required the blood of the complainant was tested. It was found that the complainant-1 was HIV positive and thereafter, he shifted to ''isolated ward'' as a precautionary measure. In order to get confirmation the blood of the complainant-1 was sent for further investigation to M/s. Anand Diagnostics Laboratory, Bangalore. The said laboratory confirmed it as HIV positive vide its letter dated 23.2.1996.

THE complainant-1 after having come to know that he is HIV positive issued a telegram notice to O.P. 1 on 23.2.1996 through his Counsel calling upon O.P. 1 to send the entire case sheet for further investigation and further treatment as per the advice of JSS Medical Hospital, Mysore. It is further stated that the complainant-1 has issued another notice dated 8.3.1996 calling upon O.P. 1 to send all the records relating to his treatment. It is alleged that no doubt, the said notices were replied the records relating to treatment were not sent by O.P. 1. The further case of the complainant-1 is that O.P. 1 had not tested the blood for HIV of one Sri Sridhar whose blood was proved to be HIV positive before transfusing the said blood to the complainant-1.

THE complainant is aged about 26 years and had married about 11 months prior to the operation and at that time his wife was carrying. On these facts the complainant has claimed damages of Rs. 10,00,000/- from O.Ps. The case of O.Ps. in their version is that complainant-1 was admitted to O.P. 1 hospital on 31.12.1995 with history of road traffic accident and he was advised to undergo an operation. The orthopaedic surgeon DR. Nityanand Rao i.e., O.P. 3 operated the complainant on 3.1.1996. The further case of O.Ps. is that out of 13 persons, the blood group of 4 persons by name Sridhar, Adishesha, Ganesh and Sathyanarayana were found to be compatible of ''O'' positive. Further it is stated that the blood of the above 4 persons was tested and found to be, (a) HIV I and II; (b) HBs Ag; (c) VDRL, (d) blood for M.P. and found negative. O.Ps. have also admitted the fact that the blood of 4 persons was transfused to complainant -1. Further O.Ps. have admitted the receipt of the legal notice issued by the complainant-1, but they have denied the statement made on behalf of the complainant-1 regarding denial of record relating to the treatment in O.P.-1 hospital. O.Ps. in their version have not denied that Mr. Sridhar is a HIV positive. The case of O.Ps. is that Sridhar who is found to be HIV positive might have recently contacted the disease since he was not found to be HIV positive at the time of testing his blood in O.P. 1 Hospital as he was perhaps still in the incubation period (window period). It is also contended by O.Ps. in their version that the complaint of the complainants came to be dismissed by the Indian Medical Council, Bangalore exonerating O.Ps.

COMPLAINANTS have filed their affidavits in support of their case. In addition the complainants have also filed affidavit of Sridhar by way of evidence. O.Ps. have cross-examined the complainants and Sridhar. O.Ps. have filed affidavits of Dr. Nithyananda Rao-O.P 3 and Dr. C.B. Murthy who is the administrator of the hospital. Both of them have been cross-examined by the complainants. Both parties have produced their documents in support of their case.

FROM the evidence and the documents produced before this Commission the main point that arises for our consideration is whether the complainants have proved that there is negligence on the part of O.P., particularly relating to the testing of the blood of one Sridhar before transfusing into the complainant-1 in order to ascertain whether the said Sridhar is HIV positive or not? Though the complainants have made certain allegations regarding negligence on the part of O.Ps. in operating him, they have not produced sufficient evidence and material to hold that there is any negligence on the part of the doctor who operated complainant-1 on his right thigh and K-nailing with bone grafting. It is also not in dispute that immediately after the operation complainant-1 developed jaundice and he was discharged from O.P. 1 Hospital on 16.1.1996. It is not in dispute that complainant-1 was admitted to JSS Medical Hospital, Mysore on 9.2.1996. From the pleadings and as per the evidence it is seen that complainant-1 got admitted to JSS Hospital, Mysore on 9.2.1996 as it was noticed that pus was oozing out from the wound where the operation was conducted on his right thigh. It is in evidence that JSS Hospital on the basis of X-ray taken found that the bone was not properly set and complainant-1 was required to undergo a minor operation to set it properly. In order to do the above said operation the blood of the complainant was examined and found to be HIV positive and thereafter, he was shifted to ''isolated ward''. Immediately, thereafter, the blood of the complainant was sent for examination to M/s. Anand Diagnostics Laboratory in order to get it confirmed. The result is that complainant-1 is suffering from HIV positive. This fact is also not disputed.

The complainant-1 in his affidavit has stated that his blood was not tested for HIV by O.P. 1 Hospital before operation. It is also the case of the complainant-1 that he was not suffering from HIV prior to the operation conducted by O.P. 3. He has also further stated that after the confirmation that complainant-1 is HIV positive got tested the blood of the persons who denoted the blood and in the said test it was found that Sridhar was found to be reactive to HIV positive. The certificates issued by Bharat Diagnostic Centre in respect of all the 4 donors are produced. The report in so far as it relates to Adishesh, Sathyanarayan and Ganesh is concerned shows non-reactive for HIV I and II. But as far as Sridhar is concerned it shows HIV I and II is reactive. Though O.Ps. have cross-examined complainant-1 (C.W. 1) nothing worthwhile has been elicited.

COMPLAINANT-2 wife of complainant-1 has been examined as C.W. 2. C.W. 2 in her deposition has stated that she married complainant-1 on 10.5.1995 and she gave birth to male child on 12.7.1996. She has deposed that she subjected herself to HIV test on 14.2.1996 as advised by the doctor and found that there was no such disease. This has not been questioned by O.Ps. in their cross-examination. This test appears to have been done to know whether she is also HIV positive as there is a scope to get contacted with HIV disease as she was pregnant at the time of accident through her husband. She had also spoken to the fact that the blood of the donors was tested after her husband got admitted to JSS Hospital for treatment. Mr. Sridhar who is one of the donors also has been examined on behalf of the complainant as C.W. 3. In his evidence he has stated that he donated the blood on 2.1.1996 after testing his blood to ascertain his blood group. But O.P. 1 hospital has not tested his blood for HIV. He has further deposed that as per the medical test dated 15.1.1996 disclosed that he was HIV I and II reactive. He has denied the suggestion that the doctor had obtained the consent for testing his blood for HIV I and II. From this evidence it is seen that the blood of Sridhar was not subjected to the test for HIV I and II. O.P. 3 has been examined as R.W. 2. In his evidence he admits that he had operated complainant-1 on 3.1.1996. He also admits that complainant-1 was admitted to the hospital on 31.12.1995 and discharged on 16.1.1996. He also admits that the blood donated by Ganesh, Adishesh and Sridhar was transfused into the body of the patient. In his affidavit he has stated that on 16.1.1996 i.e., the day on which the complainant was discharged he inspected the wound which had healed and sutures were removed. In his cross-examination he has stated that O.P. 1 hospital has got a dept. of pathology as well as microbiology. In an answer to a question that what is the basis for his say regarding the blood of the donors, he has stated that it is on the basis of the details available in pages 22, 23, 24 and 25 of Ex. R3. Ex. R3 consists of report from the pathology dept. He admits that the said reports were not signed by the pathologits. From the records it is seen that there are reports about the blood of Chandramohan, Purushothama. On the said reports there is no mention regarding VDRL or HIV. But surprisingly in so far as Sathyanarayan, Adishesh, Ganesh are concerned the word ''HIV'' is written in ink by the side of words ''VDRL''. In the column result is mentioned as non reactive. If at all there is any such test done by the pathologist the same should have been reflected even in the case of others whose blood was subjected for investigation and test. Therefore, we are of the view that the word ''HIV'' found in pathological report of Adishesh, Sridhar and Ganesh appears to be inserted subsequently. The handwriting in the said column also appears to be by some person other than the pathologist since it differs from the other handwriting on the said exhibits. From the evidence it is seen that PCR test is presently not done/conducted in O.P.1''s hospital. As stated earlier the pathologist who conducted the test has not signed any of these blood reports. In the cross-examination R.W. 2 has also stated that general condition of complainant-1 was good when he was admitted to the hospital. It is further stated by him that he has not sought for testing of the donors blood in any of the hospital since it was not necessary and he has also stated that he is not aware that the blood Bank of O.P. 1 is maintaining the records of the patient. He has further stated that he was aware that one Mr. Sridhar who was one of the donors was examined and he does not know whether Sridhar''s name has been entered in the Blood Bank as HIV patient despite his admission before this Commission. The Administrator of O.P. 1 Hospital has been examined as R.W. 1. He has stated in his affidavit that the blood of the donors were tested for; (a) HIV I and II; (b) Hbs. Ag; (c) VDRL; (d) blood for M.P. and found negative. It is further stated in the affidavit that the statement made by the complainants that O.P. 1 Hospital has not taken care to follow mandatory procedures regarding HIV tests is not correct. In the cross-examination he has stated that he has not treated complainant-1. In the cross-examination a specific question was put to him which is as follows: "If the patient is suffering from HIV his wife will also be infected with HIV, is it true? Answer: It depends on several factors-whether the couples are using condoms, whether there are any external injuries in the genital area and the duration of exposure during family life."

He has also stated that if the husband had intercourse with his wife when he is suffering from HIV, the wife also can get contacted with HIV.

IN the cross examination it is further stated that the report which are available at page Nos. 87 to 89 in Ex. R1 does not contain any date. He has also stated that he is not aware when this report was prepared. He admits that whenever a report is prepared the date will be mentioned. Ex. R1 is the report from the Pathology Dept. regarding 4 donors. IN that report as far as Sridhar is concerned it is mentioned as non reactive. The said report is not dated and appears to be not signed by the Pathologists. The register maintained by the Pathology dept. is available in the book at page 352 which is marked as Ex. R6. There is a correction in the date mentioned at Column No. 3. The name of Sridhar is at SI. No. 5. One Mohan Rao name is mentioned at Sl. No. 4. The last column in the said register is meant for the signature of the technician. As far as Mohan Rao is concerned one Geetha has signed who is said to be technician, but as far as Sridhar is concerned it is by some body else not by Geetha. The report Ex. R1 discloses that the test was conducted by Geetha and supervised by Dr. Kumari. As per the original register the technician is some body other than Geetha. But in Ex. R1 it is seen that one Geetha has conducted the test. O.Ps. have not filed any affidavit either of Geetha or Dr. Kumari. The blood reports are not signed by pathologist as stated earlier. If the blood of the donors have been tested by the technician or by the Pathologits the affidavit of the technician or the Pathologist would have been filed by O.Ps. The non-examination of the technician and the pathologist, and in view of the fact that the blood reports of the donors have not been signed by the Pathologist and also in view of the fact that from the register it is seen that Geetha has not conducted the test, we are of the considered view that blood of the donors have not been tested for HIV before transfusing the same into the body of the patient. Ex. R1 looks as if it is a fresh one created for the purpose of this case when compared with other documents produced by the hospital authority for the year of operation. The person who signed Ex. R1 also cannot be identified. The allegations made by the complainants to the effect that they have been denied supply of records relating to the treatment of complainant-1 also cannot be ruled out because the complainant-1 has sent telegraphic legal notice and also issued another legal notice stating negligence on the part of O.Ps. and also denial of the record. The O.Ps. have not produced any evidence to show that they have supplied the records as demanded in the legal notices, to the complainants. Whenever a patient is admitted on the advice of the doctor, if he is to be operated necessarily his blood must be tested not only for grouping but also for ascertaining whether the patient is HIV positive or not. In the instant case as per the evidence blood of donors has not been tested for HIV though it was tested for blood group. In the normal course whenever a blood is transfused into the body of the patient at the time of operation the said blood is required to be tested not only for grouping but also for HIV. This is the responsibility of the management of the hospital. In the instant case there is no proper management because O.P. 1 has not produced any material to show that the blood of Sridhar was tested for HIV. This in our view is a clear case of negligence on the part of the management in not getting the blood of Sridhar tested who is HIV positive before transfusing his blood into the body of complainant-1 at the time of operation or subsequent to the operation. This negligence on the part of O.P. 1 has resulted in not providing required service to the patient.

COMPLAINANT-1 is the husband of complainant-2. COMPLAINANT-1 is aged about 26 years and complainant-2 is aged about 20 years. The marriage between the complainants was 11 months before the date of the accident. As per the admitted evidence complainant-1 was hale and healthy on the day when he was admitted to O.P. 1 hospital. But he was subsequently contacted with HIV because the blood of Sri Sridhar was not subjected for test for HIV. Both the complainants could not lead a normal married life as complainant-1 became HIV positive. The complainants have got one child. From the evidence it is seen that complainant-1 was doing carpentry work to earn his livelihood. In view of the fact that complainant-1 is now HIV positive his life span also has been affected. Taking all these facts into consideration we are of the view that it is a fit case to award compensation of Rs. 2,00,000/- in favour of the complainants.

IN the result, we pass the following: ORDER The complaint is allowed in part. O.P. 1 is directed to pay compensation of Rs. 2,00,000/- to the complainants with interest at 10% p.a. from the date of the complaint till realization. O.P. 1 is also directed to pay the said sum to the complainants within 2 months from the date of receipt of the order. Complaint partly allowed.