VIRENDRA MAHLA vs Susheel Kumar

-THIS appeal has been preferred by the appellants who were the non-applicants in the complaint against the order passed by the learned District Forum, Sikar on 2. 1. 2004 whereby accepting the claim of the complainant awarded his a compensation for Rs. 2 lacs to be paid by the appellants.

THE complaint was filed by the complainant-respondent against the appellants alleging negligence in medical treatment and giving HIV positive report due to which the complainant suffered mental and physical agony and harassment. It was alleged in the complaint that the complainant had gone to the appellant for his treatment on 12. 9. 2002 as he was suffering from abdominal pain. The appellants run Ruchika Diagnostic and Research Centre in Sikar where the complainant was operated upon for appendix and thereafter he was discharged on 19. 9. 2002. In spite of the operation, pain continued to persist and therefore again on 2. 12. 2002 the complainant went to the appellant''s Hospital where he was admitted and investigations were done. From the investigation report, the complainant was found to be HIV positive and was discharged from the Hospital by the appellants saying that since the complainant''s report is positive for HIV, his treatment nowhere in the world is possible and he was advised to go home. The complainant further alleged that the appellants informed the family members of the complainant that those who were suffering from HIV positive might not live longer and therefore they were advised to take the complainant to home where he could be looked after. Having suspicion about diagnosis conducted by the appellants, the complainant went to SMS Hospital, Jaipur where the Doctors misbehaved with him and refused to investigate. Thereafter the complainant went to PBM Hospital, Bikaner but he met the same fate. Ultimately the complainant went to Marudhar Hospital, Jaipur where the investigations were repeated and the report of HIV investigations came negative. The complainant alleged that on account of wrong and incorrect report of the HIV positive given by the appellants, the complainant had to suffer physical and mental agony. Thus the complainant claimed a sum of Rs. 2 lacs as compensation on account of mental agony and harassment he had undergone and sum of Rs. 1 lac that he had to spend on account of wrong treatment and giving wrong and incorrect report of HIV positive. The appellants resisted the claim of the complainant by filing a written statement wherein all the allegations of negligence and treatment were denied and it was also submitted that the operation of the complainant for appendix was done by Dr. G. L. Rathi and the appellant No. 1 which was successful. Again on 2. 12. 2002, the complainant was admitted in the Hospital on account of complaint of pain in abdomen. Investigations were again conducted and on investigations conducted the complainant was found to be HIV positive and was further advised to get the same confirmed by Western Blot Technique (WBT) which is a confirmatory test. Thus as per the appellants, the allegations of negligence are totally baseless, unfounded and incorrect and therefore requested to dismiss the complaint.

Having considered the arguments of both the parties, the learned District Forum, Sikar allowed the complaint by majority and awarded compensation to the tune of Rs. 2 lacs along with expenses of litigation and interest @ 12% p. a. in case they fail to make the payment within a period of one month.

FEELING aggrieved by the award dated 2. 1. 2004, the appellants have preferred this appeal. The learned Counsel for the appellant has submitted that on an investigation, the complainant was found to be HIV positive through the screening test which was done from HIV Neva Kit of Cadila Company. It was further submitted by the learned Counsel that the appellants had advised the complainant to co-relate the result clinically by Western Blot Technique which is a confirmatory test for HIV but still the learned District Forum has held the appellants negligent. It was also argued that the appellants after the HIV positive report, not only directed the complainant to go for confirmatory test by WBT but also referred him to SMS Hospital for further treatment as hospital of the appellant was not fully equipped to deal with the HIV positive patients. The learned Counsel has also cited the Harison''s Book of Principles of Internal Medicines wherein it has been opined that though EIA Test i. e. Enzyme Immune Assay is an extremely sensitive test, it is not optimal with regard to the specificity. Only 10% of EIA positive individuals are subsequently confirmed to have HIV infection. The relevant observations in the above Book are reproduced as under: "the standard screening test for HIV infection is the ELISA, also referred to as an enzyme immunoassay (EIA ). This solid-phase assay is an extremely good screening test with a sensitivity of 99. 5%. Most diagnostic laboratories use a commercial EIA kit that contains antigens from both HIV-1 and HIV-2 and thus are able to detect either. These kits use both natural and recombinant antigens and are continuously updated to increase their sensitivity to newly discovered species, such as group O viruses (Fig. 309-6 ). EIA tests are generally scored as positive (highly reactive), negative (non-rective), or indeterminate (partially reactive ). While the EIA is an extremely sensitive test, it is not optimal with regard to specificity. This is particularly true in studies of low-risk individuals, such as volunteer blood donors. In this latter population, only 10% of EIA-positive individuals are subsequently confirmed to have HIV infection. Among the factors associated with false-positive EIA tests are antibodies to class II antigens, autoantibodies, hepatic disease, recent influenza vaccination, and acute viral infections. For these reasons, anyone suspected of having HIV infection based upon a positive or inconclusive EIA result must have the result confirmed with a more specific assay. The most commonly used confirmatory test is the western blot (Fig. 309-23 ). . . . . . . . . . . . . . . . . . "

ON the other hand, the learned Counsel for the respondent has submitted that not only the appellants were negligent in performing the operation for Appendix but also negligent in giving a false report about the HIV positive. When the screening test was not conclusive, the report of HIV positive should not have been given by the appellants. HIV positive report should have been given only after the confirmatory test, the test as suggested by the appellants. By giving an unconfirmed report by the appellants, the complainant had to suffer mentally and physically and also financially. Nobody was prepared to accept him as the patient for any treatment after seeing the HIV positive report. The learned Counsel has further submitted that while performing the operation of appendix, the intestines were put in such a position that the pain in the abdomen continued to persist for a long time and thus the appellants are negligent on this ground also. We have considered the rival contentions and gone through the file. In Dr. Laxman Balakrishna Joshi v. Dr. T. B. Godbole, AIR 1969 SC 128, it was held that the Practitioner must bring to his task as reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence, judged in the light of the particular circumstances of each case, is what the law requires. In Poonam Verma v. Ashwin Patel and Ors. , II (1996) CPJ 1 (SC)=1996 (4) SCC 332, it was held by Hon''ble the Supreme Court that the breach of duty may be occasioned wither by not doing something which a reasonable man, under a given set of circumstances would do, or by doing some act which a reasonable prudent man would not do.

KEEPING in view the above observations of Hon''ble the Supreme Court, the complainant for establishing negligence on the part of the Doctor he has to prove such failure on his part as no Doctor of ordinary skill would be guilty of it acting with reasonable care. The complainant has also to show that the appellant has done something which a reasonable prudent man would not do. We feel that in the instant case, the appellants cannot be held guilty of any failure or negligence. The complainant first of all came to the appellant on 12. 9. 2002 with pain in abdomen. Investigations were done and ultimately the stomach was opened and finding a case of appendix, operation for the same was done and diseased appendix, was removed. After a lapse of about three months, the complainant again came to the appellant with pain in his abdomen. As the screening test showed HIV positive, the complainant could not be treated by the appellant. Ultimate result goes to show that the complainant was suffering from intestinal obstruction for which he was treated by another clinic. It clearly goes to show that intestinal obstruction had nothing to do with the ailment of appendix. There is nothing on record to say that the subsequent obstruction in the intestines was the result of earlier operation performed by the appellant. The learned District Forum has also not found the appellant guilty of operation done by the appellant for appendix. Under these circumstances, we have to confine ourselves to this issue only whether the appellant was negligent in giving result of HIV positive.

WE have gone through the report given by the Ruchika Clinical Laboratory which is owned by the appellant. The complainant was shown as HIV positive and it was also clearly mentioned that it was a screening test. A note was also given to this effect that the result may be correlated clinically and must be confirmed by WBT. It appears that no confirmation by the above technique was obtained by the complainant. Instead he went for the same kind of test and got a negative report. It will not be out of place to mention that such a test may give false positive and false negative results. Such kind of tests are intended only for the sake of initial screening but the same has tobe confirmed by WB Test. From the report, it is clear that the respondent was specifically suggested to go for confirmatory test by the WBT but he did not abide by the advice but carried this impression that he was suffering from HIV positive. The learned Counsel for the respondent has tried to convince us by arguing that when the test report was not conclusive, the Doctor should not have written in the report that the complainant was HIV positive. We do not agree with the submission made by the learned Counsel for the respondent. When the screening result was positive for HIV, Doctor was duty-bound to mention the same in his report. Had he not mentioned the factual position, he would have been held guilty for negligence for this omission. So far as referring the complainant to go for confirmatory test, we find the action of the appellant quite in confirmity with the discharge of his duties as a Doctor. The question also arises whether the report given by the appellant was wrong in view of subsequent two investigations showing the HIV as negative. From the observations made in the Harison''s Book, we may conclude that the results may vary from test to test, Even persons showing positive HIV in screening test may not be positive in the confirmatory test. It was found that only 10% of EIA positive individuals are subsequently confirmed to have HIV infection. It has also been mentioned that it one suspected of having HIV infection bassed upon a positive or inconclusive EIA result must have the result confirmed with a more specific Assay which is known as the WB Method.

The learned Counsel for the respondent has also submitted that patient should have been treated by the appellant but instead of treating him he was labeled as patient of HIV positive. In our view when the result had shown the complainant as HIV positive, we feel the appellants could not have undertaken the treatment and the best course for them was to refer his to the place where the Hospital is fully equipped to treat those patients who were suffering from HIV.

FOR the aforesaid reasons, we find the appellants not guilty for any negligence on their part and therefore order of the learned District Forum, Sikar dated 2. 1. 2004 cannot be sustained. The result is the that the appeal is deserves to be accepted and is hereby accepted and the order of the learned District Forum, Sikar, dated 2. 1. 2004 is set aside. The parties are to bear their own costs. Appeal allowed.