SMN CONSUMER PROTECTION COUNCIL vs GANGA HOSPITAL

THIS is a complaint under Sec. 17 read with Sec. 12 of the Consumer Protection Act.

THE first complainant is a voluntary consumer organisation and the second complainant is the consumer. It is their case that the second complainant was admitted in the first Opp. Party''s hospital Coimbatore on 6.10.90 with profuse bleeding for 15 days. She was referred Dr. V.R. Thilakavathy, Professor of Gynaecology, Coimbatore Medical College Hospital who is the consultant attached to the first Opp. Party. She decided abdominal ''Hysterectomy'' on the second complainant on 7.10.90. THE patient required blood transfusion. Her blood group was ''B''-Rh negative and accordingly the blood was obtained by the first Opp. Party from the second Opp. Party. During the operation on 7.10.90 two units of blood supplied by the second Opp. Party were transfused. THE second complainant was discharged from the first Opp. Party''s hospital on 14.10.90. According to the complainants, the second complainant took ill on 17.10.90 and was examined by Dr. Shanmuganathan of the 1st Opp. Party. Her blood was tested on 17.10.90 and it proved that she was infected with Serum Hepatitis: B. She was referred for treatment to Dr. K. Padmanabhan. Her SGPT value reached highest 151 OIU per ml of Serum on 5.12.90. Her blood test on 12.12.90 also showed HeBsAgpositive:B. According to the complainants, the Doctors were unanimously of the opinion that her condition was due to the contaminated blood transfused to her. THE second complainant underwent severe ailment for about 3 months and during the period she suffered from fever, joint pains, change of skin colour, itching, scaling and constipation. Her liver and brain were also affected. THEse were all due to the negligence and carelessness on the part of the Opp. Parties. It is the further case of the complainant that the second complainant''s husband was also infected from his wife and suffered from Hepatitis ''B''. He was also treated and he recovered from the ailment on 12.5.91. Hence this complaint claiming Rs. 1,37,735/- for expenses of treatment incurred by the second complainant and her husband with interest thereon at 24%, Rs. 4,00,000/- towards mental agony and pain, Rs. 2,00,000/ - towards additional financial burden for further treatment and Rs. 1,000/- towards costs. The first Opp. Party has filed a detailed counter denying the allegations of negligence or deficiency of service. It is admitted that the second complainant came to the first Opp. Party''s hospital with complaint of repeated bouts of bleeding per vaginum and consulted Dr. Shanmuganathan, Director of the first Opp. Party''s Hospital. He advised her to consult Dr. Thilagavathy, attached to the said hospital as consultant. She advised admission in the hospital for hysterectomy and the patient was admitted on 6.10.90 at 9-30 a.m. On admission, the second complainant was examined in detail by the Junior Doctor, Dr. J. Geetha, and the history of her case as given by the second complainant has been noted down in the history sheet. Preoperative investigations were done. They were Urine for Albumin, Sugar and Deposits, Blood for Haemoglobin, Sugar and Urea, X-ray chest and ECG. The operation was fixed on 7.10.90. Arrangements were made to get blood from the second Opp. Party which is a well established, Government licensed approved blookbank. On the date of admission, one unit of B-Negative blood was given and during the operation another unit of blood was given. The blood bottles were accompanied by the certificates of the blood bank stating that the bottle has been verified Negative for Hepatitis B virus. The certifcates on the blood bottles were checked and verified for compatability before transfusion. But at the time of transfusion it is not advisable and it is also prohibited to draw blood from the bottle for test. The complainant was discharged on 14.10.90 after hysterectomy in a good condition. Subsequently, she felt unwell and consulted Dr. J.G. Shanmuganathan of the first Opp. Party''s hospital. Tests done showed that she had Hepatitis B infection. The diagnosis ''Serum Hepatitis" does not in anyway confirm that it was got only by blood transfusion. It could be got by any injection, any operative procedure and diagnostic procedure. It is possible that the second complainant and her husband were carriers of Hepatitis B even before the whole episode. The Doctors of the first Opp. Party''s hospital never gave an opinion that jaundice suffered by the second complainant was definitely due to the blood transfusion. She was asked to consult Dr. K. Padmanabhan, Prof. of Medicine, Coimbatore Medical College and Senior Physician in the city regarding the management of jaundice. Dr. K. Padmanabhan also never gave an opinion that it was due to Blood transfusion. She was treated only as an out-patient in the first Opp. Party''s hospital and her condition did not even warrant inpatient treatment. The first Opp. Party is not guilty of negligence or deficiency in service. The claim for damages is imaginary and unsustainable.

The second Opp. Party has filed a separate counter. It is admitted that this Opp. Party supplied two bottles of blood under the Blood group ''B''-Rh negative under Unit No. 90J35-05 and 90J33-03. In respect of these supplies this Opp. Party had taken several precautions. It had screened the donors for fitness by the Medical Officers in charge with the 2nd Opp. Party. Haemoglobin level was tested which was satisfactory. The following tests were also undertaken which were negative, before the blood was supplied: (1) VDRL (2) Malarial Parasite (3) Microfilaria (4) HIV (to overrule AIDS (Anti Immune Deficiency Syndrome) (5) HBsAG (HAA) Hepatitis Australian Antigen or Hepatitis B (6) The Blood Donors were also screened to find out symptoms for tuberculosis and cancer. The blood bottles supplied to the first Opp. Party for blood transfusion to the second complainant was absolutely free from any of the above diseases.

This Opp. Party contemporaneously maintains all particulars and records of the various samples of blood which are given to it by the donors and also the particulars of tests conducted in respect of the blood given by various donors. Only after the Opp. Party is fully satisfied with the blood samples received by it from various donors that they are free from all diseases and is fit for blood transfusion to normal persons, the blood is taken, duly sealed and supplied to various hospitals. The same was the case in respect of the supplies made to the first Opp. Party hospital, in the instant case. The authorities including the Drug Inspector used to visit and inspect this Opp. Party from time to time. It is therefore clear that the blood bottles supplied by this Opp. Party for blood transfusion to the second complainant was in no way contaminated or infected with virus Hepatitis B. There was therefore no deficiency in service or negligence on the part of the Opp. Party. The claim of damages as against this Opp. Party is also imaginary.

EXHS. Al to A32 and B to B11 are marked by consent. Proof affidavits are filed. The second complainant is examined as PW 1 while Dr. Shanmuganathan, Director of the first Opp. Party is examined as RW1, Dr. K. Natarajan Pathologist is examined as RW 2 and Mr. Vivekanandan, Partner of the blood bank is examined as RW3. The point that arises for determination is whether there has been any deficiency in service or negligence on the part of the Opp. Parties or any of them.

POINT: The second complainant (PW 1) got admitted in the first Opp. Party''s hospital on 6.10.90 with bouts of bleeding pervaginum for about 15 days. RW1 Dr. Shanmuganathan, Director of the first Opp. Party''s hospital referred her to Dr. Thilagavathy, Prof. of Gynaecology, Coimbatore Medical College Hospital who was a consultant Gynaecology with the first Opp. Party. Dr. Thilagavathy decided on performing hysterectomy on PW 1 on 7.10.90. Exh. B1 history sheet shows that PW 1 has had another operation procedure in the recent past. She was a known wheezer, allergic to dust. She was taking tablet-AMITRYPS for depressive illness since two years. Pre-operative investigations were done and they were urine for Albumin, Sugar and Deposits, Blood for Haemoglobin, Sugar and Urea, X ray chest and ECG. As she was having no history of Hepatitis B, her blood was not screened for virus Hepatitis B. She was in need of blood and her blood group was B-Rh negative. One bottle blood of the same group was administered to her according to the Opp. Party''s hospital on 6.10.90, another bottle during the operation on 7.10.90. The case of the complainants is that both these bottles were administered to her only during the operation on 7.10.90 and their further case is that one bottle of blood was already in the first Opp. Party''s hospital and another bottle blood was purchased by her as instructed by the first Opp. Party. According to the first Opp. Party, both these bottles were purchased only by PW 1''s husband as instructed by the first Opp. Party. Exh. A2 bill dated 6.10.90 and Exh. A4 bill dated 7.10.90 issued by the second Opp. Party blood bank are in the names of PW 1. We can therefore safely conclude that both these bottles have been purchased by PW l''s husband and there was no stock of blood group B-Rh negative with the first Opp. Party. The operation conducted on her by Dr. Thilagavathy was successful and she was discharged on 14.10.90. The complainants have not come forward with any allegation of deficiency in service or negligence against the first Opp. Party in respect of this surgery conducted on her. The complaint relates to something which happened subsequently. As per the complaint, PW 1 took ill on 17.10.90 within 3 days of discharge and she was examined by RW 1 of the first Opp. Party''s hospital. But it is not clear as to when exactly she was examined by RW 1. Her blood has been examined on 17.11.90 in the Laboratory attached to the first Opp. Party under Exh. A10. The Australian Antigen Test gave a positive test for Hepatitis B. RW 1 Dr. Shanmuganathan referred her to Dr. Padmanabhan and she was treated as an out patient. Her blood has again been tested on 24.11.90 under Exh. A14 and she had SGPT 43-0 International units per ml of serum. The blood was again tested under Exhs. A15 & A16 on 5.12.90 and it showed that she had 25.8 mg. serum bilirubin and 151-0 International units per ml of serum. On 12.12.90 serum bilirubin was 24.6 mg. (under Exhs. A18 and A19). On 24.12.90 serum bilirubin was 19.2 mg and the patient''s value of SGPT was 67.0 International units per ml of serum (vide Exhs. A20 & A21). On 23.1.91 the patient''s SGPT value was 39.0 International units per ml of serum (vide Exh. A23). On 25.1.91 total serum bilirubin was 3.6 mg. (vide Exh. A23). On 4.3.91 serum bilirubin was 1.0 mg. which was within the normal rate (vide Exh. A24). The case of the complainants is that PW 1 was afflicted with Hepatitis B on account of blood transfusion of contaminated blood supplied by the second Opp. Party blood bank. It is also her further case that her husband was afflicted with this disease and according to the complainants, he was infected with serum Hepatitis B from his wife. It may at once be pointed out that no record what so ever has been placed before us to show that PW l''s husband was suffering from Hepatitis B. and the particulars as to how, when and by whom the treatment given to him. We are not therefore inclined to consider the case of PW l''s husband in the absence of any record therefor. We are only concerned with the contact of the disease Hepatitis B by the second complainant PW 1 only. The allegation of deficiency in service and negligence attributed to the first Opp. Party''s hospital where PW 1 underwent hysterectomy is that during the operation the first Opp. Party gave blood transfusion to her with the two bottles of blood supplied by the second Opp. Party blood bank without re242CONSUMER PROTECTION JUDGMENTS1994 checking and rescreening the blood for infection of Hepatitis B. The case of the first Opp. Party on the other hand is that the second Opp. Party blood bank is a well known institution and the first Opp. Party''s hospital acted upon the compatability certificate issued by the second Opp. Party alongwith the two bottles of blood supplied by it under Exhs. A2 & A4 bills. Exh. A3 is the compatability certificate for the blood supplied under Exh. A2 on 6.10.90 and Exh. A5 is the compatability certificate with respective to the blood bottle supplied on 7.10.90 under Exh. A4. Both these certificates clearly say that unit of blood supplied is non-reactive for HbsAg test, HIV and VDRL Test. According to RW 1 Dr. Shanmuganathan before using the blood for transfusion they check and verify the certificate about the group of blood and its compatability with that of the patient and acting upon the certificate, they make use of the blood for transfusion. It is not the practise to recheck the blood supplied by the blood bank in the hospital for contamination before transfusion. It is also stated that it is inadvisable to recheck and rescreen the blood for fear of contamination. The first Opp. Party''s hospital has acted upon the certificates issued by the second Opp. Party alongwith the bottles and it canaot therefore be said that the first Opp. Party acted negligently or committed deficiency of service in transfusing the blood supplied by the second Opp. Party covered by the compatability certificates. The claim against the first Opp. Party is therefore totally misconceived.

THE order to sustain the claim against the second Opp. Party, the complainants have to establish (1) that the blood bottles supplied by the second Opp. Party blood bank under Exhs. A2 & A4 bills were contaminated with virus Hepatitis B and (2) the second complainant contacted the Hepatitis B only because of the transfusion of the blood. THEre is no direct evidence that the blood supplied under Exhs. Al and A4 by the second Opp. Party was contaminated and was infected with virus Hepatitis B. It must also be admitted that it is not possible to prove the same at this stage. We have therefore to consider only the evidence led in on the side of the second Opp. Party regarding the tests carried out before collecting this blood. RW 3 Vivekanandan is a partner of the second Opp. Party blood bank. He himself is M.Sc.,in Faculty of medicine and human physiology. He speaks to the procedure adopted in collecting blood from donors. THE donor is clinically examined for Blood Pressure, Pulse Rate, enlargement of liver, respiratory rate etc. THE previous medical history is also collected from the donor. THE donor is also questioned about the previous attack of any jaundice. A sample of the blood is taken and Haemoglobin level is tested. THE blood is also tested for malarial parasite and M.F. Serum tests like VDRL, HIV and Hepatitis B are also conducted. Only thereafter the blood is collected. Exh. B9 is the register maintained by the second Opp. Party in this regard. Exh. B9(a) at page 58 of the B9 register gives the details of the donor Mr. Ganesan for the first bottle of blood supplied under Exh. A1 and Exh. B9(b) at page No. 60 of Exh. B9 register gives details of donor Mr. Ravi from whom the second bottle of blood has been collected. Exhs. B.9(a) & (b) contains several columns. Column 18 relates to Australian Antigen Test. In Exhs. B9(a) and B9(b) we find in column 18, a coma which according to RW 3 indicates negative. If the test proved positive, the entry will be ''P''. At page 51 of Exh. B9, there is the signature of Drug Inspector who has verified these records. Exh. B.10 is the book relating to serum test conducted by the second Opp. Party. THE relevant entries in respect of the two bottles supplied in this case are at page Nos. 194 and 196, of Exh. B10. Both these entries reveal that the result of the test for serum Hepatitis B was negative. Exh. B11 is the Issue Register under which blood bottles are issued. On 6.10.90 one bottle of blood bearing No. 90J35-05 has been issued to the complainant and on 7.10.90 another bottle bearing No. 90J33-03 has been issued to the complainant. THEse are the two bottles covered by Exhs. A2 & A4 bills. Exhs. A3 &A5 are the certificates issued by the second Opp. Party alongwith the bottles and they showed the result of the test. In the cross examination of this witness nothing has been elicited to cause aspersion on his testimony. Exhs. B9, B10 & B11 registers are kept in the regular course of business and there is absolutely nothing to doubt their genuineness. In fact, no suggestion has been made to RW 3 that these registers are prepared up for the purpose of this case. THEre is therefore no substance in the contention advanced by the learned Counsel for the complainant that the test conducted are routine, they have been conducted in casual and cavalier manner and the registers have been prepared for this purpose of this case. It is argued that in Exhs. A3 and A5 compatability certificates the signature of the person issuing the certificates is above the certificates is of little substance and no adverse inference can be drawn. We are convinced that proper tests have been conducted by the second Opp. Party before collecting blood from the donors and the blood bottles supplied by the 2nd Opp. Party in this case have also been subjected to proper screening and as per the certificates issued by the second Opp. Party, they were free from virus Hepatitis B.

IT is urged on behalf of the complainants that a person can be afflicted by Hepatitis B only by blood transfusion and consequently PW 1 must have acquired this disease only as a result of the blood transfusion of the two bottles of blood supplied by the second Opp. Party and the second Opp. Party is therefore liable for deficiency in service and negligence. This contention has no substance. In the book "Diseases of the Liver and Biliary System" by SHEILA SHERLOCK-Fifth Edition at page No. 306 it is pointed out that virus Hepatitis B develops usually parenterally, by blood or its products. Parenteral transmission is classically by therapeutic administration of blood and blood products or by the use of a contaminated instrument which has broken the skin of two persons. IT can almost certainly be spread orally. Modes of oral spread by blood include contaminated dental instruments, and communal tooth or shaving brushes. Saliva contains HBAg during the acute stage and in carriers. Menstrual discharge may also be infectious. Blood transfusion is therefore one of the causes, perhaps one of the main causes for developing virus Hepatitis B, but it is not the sole cause. Contaminated syringe needle can also cause virus Hepatitis B. IT is in this connection pertinent to point out that the second complainant has been chronically sick even before she underwent hysterectomy. Exh. B1 history sheet shows that she was a known wheezer and must have therefore taken injections D & C, Pop smear have been done to her two months earlier and she might have been administered injections during that course. IT is therefore quite possible that PW 1 was already infected with virus hepatitis B. IT has manifested itself subsequently. IT is also necessary to point out that as per Sheila Sherlock (Diseases of Liver and Biliary System), the incubation period for virus hepatitis B is between 50-160 days. According to G.C.De. Gruchy''s CLINICAL HAEMATOLOGY IN MEDICAL PRACTICE, the incubation period for Serum Hepatitis B is between 60-150 days. (Page No. 758). PW 1 has been administered blood transfusion on 6.10.90 and 7.10.90. She has been discharged from the first Opp. Party''s hospital after hysterectomy on 14.10.90. In paragraph 6 of the complaint, it is stated that she took ill on 17.10.90 within 4 days of the discharge from the hospital. If her illness was due to virus Hepatitis B, the infection must takes 50 or 60 days earlier i.e.in the month of August, 90, long before the blood transfusion to her on 6.10.90 & 7.10.90. We are therefore of the view that PW 1 has been afflicted with virus Hepatitis B not due to the transfusion of blood that has taken place on 6.10.90 and 7.10.90 in the first Opp. Party''s hospital with the blood supplied by the second Opp. Party. On a consideration of all the facts and circumstances, we hold that the claim against the second Opp. Party blood bank is also unsustainable. The complainants failed to establish any deficiency of service or negligence on the part of the second Opp. Party as well.

In the result, the complaint filed and is dismissed, but without costs. Complaint dismissed.