SANJAY PANCHAL vs INDUBHAI PAREKH MEMORIAL HOSPITAL &ANR.

Aggrieved with the order dated 29.3.2012 of the State Consumer Disputes Redressal Commission, Madhya Pradesh, (in short ''the State Commission'') the petitioner, Sanjay Panchal has filed the present revision petition.

We have heard the learned counsels for both the parties and perused the documents carefully.

The learned counsel for the petitioner stated that the petitioner had gone to the respondents hospital on 29.05.2007 for check-up as the petitioner was suffering from lethargy and fever. The blood test was done at the pathology of the respondent hospital and hemoglobin was found to be very low. In the blood test, his blood was tested as A+ and 4 bottles of A+ blood was transfused and he was discharged on 4.6.2007. The condition of the petitioner went on deteriorating and he again contacted the hospital where he was advised to consult some other doctor particularly the Nephrologist. When his condition further deteriorated, he was taken to Choitram Hospital, Indore on 10.10.2007 where his blood was again tested and it was found to be A-. It was also found that on account of wrong blood transfusion his kidneys have failed. He would require dialysis and kidney transplant. An estimated expenditure of Rs.1,92,000/- for kidney transplant and Rs.12,000/- per month for post ?transplant care was mentioned there. The petitioner family contacted the respondent hospital many times but they did not give any heed to the request from the petitioner. Ultimately, the consumer complaint was filed before the District Consumer Disputes Redressal Forum, (in short ''the District Forum'') and District Forum allowed the consumer complaint vide its order dated 14.5.2008, which reads as follows:- "Accordingly, accepting this Dispute, the respondent No.1 is hereby ordered to pay to the disputant the sum of Rs.1,92,000/- towards the expenses of the kidney transplantation, and Rs.2,88,000/- towards the post-operation expenses at the rate of Rs.12,000/- per month for two years, and besides that, the sum of Rs.1,00,000/- being the compensation for the mental and physical trauma suffered by the disputant {thus, the total aggregating to Rs.5,80,000/- (Rupees five lakh eighty thousand only)}. The cost of the dispute shall be borne by the respondent, which is being fixed at Rs.1000/- (Rupees one thousand only).

The respondents appealed against this order before the State Commission, which dismissed the appeal vide its order dated 26.03.2010. The respondents preferred revision against this order before the National Consumer Disputes Redressal Commission (NCDRC) and the NCDRC set aside the order of the State Commission and remanded the case back to the State Commission vide its order dated 26.7.2011. The NCDRC also ordered respondents to deposit Rs.1 lakhs before the State Commission to be given to the petitioner as ad-hoc payment. Learned counsel mentioned that the same has not been given by the respondents. Thus, the respondents have not complied with the order of the National Commission. Learned counsel argued that it was most surprising that the State Commission vide its order dated 29.3.2012 has now cleared the respondents of any deficiency in service and have set aside the order of the District Forum. The respondents have not denied that wrong blood was transfused. The kidneys of petitioner have failed due to this wrong blood transfusion and he had to go for kidney transplant for which the compensation awarded by the District Forum was not even sufficient. As the kidneys failed due to wrong blood transfusion based on wrong blood testing, by no stretch of imagination, it can be said that there was no medical negligence on the part of the respondents. Learned counsel cited following judgments in his favour: a. Dr. K. Vidhyullatha Vs. R. Bhagawathy, I (2006) CPJ 136 NC.

"14. It may further be mentioned that if the complainant was not able to pass urine after surgery then the principle of res ipsaloquitor would be attracted and deficiency in service would stand proved.Consequently, the appellant cannot escape the blame for deficiency in medical services. There could again be no doubt that administering blood of ''A'' positive group to a patient having ''O'' positive blood group would certainly amount to deficiency in service.The acute renal failure occurred due to intra-vascular haemolysis. " a. Post Graduate Institute of Medical Education and Research, Chandigarh Vs. Jaspal Singh and Ors., 2006 ACJ 2672

"22. The patient, Harjit Kaur, got burn injuries to the extent of 50% on March 30, 1996.She was initially treated at DayaNand Medical College and Hospital, Ludhiana for about 20 days.Her condition improved satisfactorily at DayaNand Medical College and Hospital.She was admitted to PGI, Chandigarh on April 19, 1996.The available material placed before the State Commission shows that at the time of her admission, Smt. Harjit Kaur was taking medicine orally and passing urine; 75% of eschar was removed by May 1, 1996.Her condition had substantially improved at PGI before May 20, 1996 and she had no signs of sepoticemia.It was only after mismatched blood transfusion B+ on two consecutive days, i.e., 20 and 21 May, 1996, that she became anemic (her th st haemoglobin level was reduced to 5 per gram) and her kidney and liver were deranged.It is true that her haemoglobin was brought up in few days but her condition otherwise got deteriorated.Although she survived for about 40 days after mismatched blood transfusion but from that it cannot be said that there was no causal link between the mismatched transfusion of blood and her death.Wrong blood transfusion is an error which no hospital/doctor exercising ordinary care would have made.Such an error is not and error of professional judgment but in the very nature of things a sure instance of medical negligence.The hospital''s breach of duty in mismatched blood transfusion contributed to her death, if not wholly, but surely materially.Mismathced blood transfusion to a patient having sustained 50% burns by itself speaks of negligence.Therefore, in the facts and circumstances of the case, it cannot be said that the death of Smt. Harjit Kaur was not caused by the breach of duty on the part of the hospital and its attending staff."

Learned counsel for the respondents stated that when the petitioner came for check-up on 29.5.2007, he was already suffering from the chronic renal failure as was evident from the blood report done on the same day. The Urea was found to be 69 and creatinine was found to be 4.8 and haemoglobin 5.4. The hospital while discharging the patient had advised him to contact a Nephrologist. The petitioner contacted Dr. Pradeep Salgiya, Nephrologist on 27.6.2007 and his remarks do not mention anything about wrong blood transfusion. On the contrary, haemoglobin had increased to 7.1 due to blood transfusion. Learned counsel also pointed out that it was not the wholel blood that was transfused, rather, it was packed red cells (without white cells) that was transfused. The patient did not complain of any special problem during his stay at the hospital from 29.5.2007 to 4.6.2007 when he was discharged. There is no question of kidney failure on account of blood transfusion, as he was already suffering from chronic kidney failure. This blood transfusion of A+ blood will not adversely affect A- recipient. Had it been B or O recipient, it would have made definite adverse impact. But this is not the present case. The State Commission in its order has examined this issue in great details and observed as follows:- "On basis of foregoing discussions we come to the conclusion that on 29.05.2007 when the respondent first time went to the appellants for treatment, then he was suffering from chronic renal failure, due to which he was referred to Nephrologist after check-up, it is not that his kidney damaged due to wrong blood transfusion. On 27.06.2007 the nephrologist Dr. Pradeep Salgiya diagnosed CKD Stage5. According to medical literature positive blood is found is clumping form. Since the blood group of the respondent was found to be blood Group A and clumping form was also found, therefore, Rh factor+ ve was concluded. It is also important to note here that since Hb of the respondent was 5.4 therefore, whole blood was not transfused whereas packed red blood cells was transfused. The respondent

did not complain about anything either during transfusion or after transfusion. The report of Nephrologist Dr. Pradeep Salgiya dated 27.06.2007 does not mention anything about any adverse reaction."

Learned counsel said that the above observation of the State Commission is self explanatory and clearly absolves the respondents of any medical negligence. He also mentions that the judgments cited by the petitioner are not applicable in the present case, as in both the cases, the blood groups of the patient and transfused blood were totally different.

After perusing the records carefully, we find that the blood test report dated 29.5.2007 when the petitioner was first admitted in the respondent hospital, mentioned urea to be 69, creatinine 4.8 and haemoglobin 5.4. This clearly shows that the patient was suffering from the disease of kidney failure and that is why the respondent hospital had advised him to consult a Nephrologist which he consulted only on 27.6.2007. Therefore, the contention of the petitioner cannot be accepted that his kidneys failed on account of wrong blood transfusion. The patient was to get dialysis and kidney transplant in a normal progression of the disease. We are of the view that the main deficiency on the part of the respondents is that they wrongly tested the blood and transfused the blood not matching with the blood group of the petitioner. Wrong blood transfusion is a serious medical negligence and we do not agree with the conclusion of the State Commission that there was no negligence on the part of the respondents while testing the blood and transfusing the wrong blood accordingly.

From the above discussions, we are of the view that the order dated 29.03.2012 of the State Commission suffers from material irregularity and needs to be set aside. However, order of the District Forum, dated 14.5.2008 also needs modification as the compensation awarded has taken into account expenditure involved in kidney transplant and treatment for two years which in any case the patient would have incurred as he was already a patient of renal failure when he was first admitted in the hospital for check-up. We are of the view that barring Rs. 1,92000/- for kidney transplant amd Rs.2,80,000/- for post tramsplant expenses for two years, the compensation of Rs.1 lakh awarded by the District Forum was reasonable and justified. However, we feel that it must carry interest now as its payment has been delayed.

Accordingly, revision petition is allowed. Order of the State Commission dated 29.3.2012 is set aside and order of the District Forum is modified to the extent that respondents (jointly and severally) are directed to pay Rs.1,00,000/- (Rupees One Lakh) to the petitioner as compensation instead of awarded amount of Rs.5,80,000/- by the District Forum along with interest @ 8% per annum from date of the order of the District Forum i.e 14.05.2008 till realisation. The petitioner will also get the cost of dispute viz Rs.1000/- (Rupees One Thousand) only from the respondents as ordered by the District Forum. This order should be complied within 45 days from the date of this order, failing which the respondents will be liable to pay interest @12% from the date of this order till realisation.