Smt Parvathi Sirisha N Vs. Yashoda Hospital, Rep. by Its Director and Others - Court Judgment

SooperKanoon Citationsooperkanoon.com/1107785
CourtAndhra Pradesh State Consumer Disputes Redressal Commission SCDRC Hyderabad
Decided OnDec-11-2012
Case NumberC.C.NO.105 of 2010
JudgeMR. R. LAKSHMINARASIMHA RAO, HONOURABLE MEMBER & MR. THOTA ASHOK KUMAR, HONOURABLE MEMBER
AppellantSmt Parvathi Sirisha N
RespondentYashoda Hospital, Rep. by Its Director and Others
Excerpt:
oral order: (sri r.lakshminarasimha rao, honble member) 1. the complaint is filed seeking direction to the opposite parties to pay a sum of `40 lakh with interest towards medical expenses and treatment, `5 lakh with interest towards compensation for mental agony and `25,000/- towards costs 2. the averments of the complaint are that on 11.3.2008 she was admitted in the opposite party no.1 hospital for treatment of gum bleeding and she was treated for a period for 22 days and blood was transfused to her where after her condition was further deteriorated. after her condition become normal, she was discharged on 2.4.2008 and the complainant incurred an amount of `1,90,000/- towards medial expenditure. on 18.7.2008 she was again admitted as inpatient in the opposite party no.1 hospital and during the time of her admission for the first time she was treated by the opposite parties no.4 to 6 and when she was admitted for the second time the opposite parties no.4 and 6 administered treatment to her and discharged her on 19.7.2008 and the complainant incurred an amount of `10,000/- towards consultation fees and medicine. 3. on 2.8.2008 the complainant was admitted for delivery in the opposite party no.1 hospital and she had undergone lscs and she gave birth to a female child. the opposite parties conducted various tests and diagnosed the complainant suffering from hepatitis-b. hepatatits b was caused due to blood transfusion done to the complainant during the course of treatment between 11.3.2008 to 2.4.2008. the blood donors who donated blood to the complainant are not infected with hepatits-b. on 6.8.2008 the complainant was discharged from the opposite party no.1 hospital and she incurred a sum of rs.60,000/- for the consultation fees and medicines. on 21.8.2008 the complainant was again admitted to the opposite party no.1 hospital and she was subjected to serum test, liver function test, urine test and complete blood picture test. the opposite parties no.4 to 7 treated the complainant and on 30.8.2008 she was discharged with an advise to go for liver transplantation. the complainant incurred a sum of `1,00,000/- towards consultation excluding the costs of the medicine and charges for the tests. 4. on 31.1.2008 the complainant was admitted in indraprastha apollo hospital at new delhi where she had undergone liver transplantation and donee was her sister rupa kala chaitanya and she was discharged on 22.9.2008 in stable condition from the hospital. the complainant visited indraprastha apollo hospital for periodical check-up for three times till 10.10.2008. the complainant incurred an amount of `22,50,000/- towards consultation fees, admission charges and other expenses and she incurred a sum of `7 lakhs towards charges for medicine, tests and transportation and she had spent a sum of `29,50,000/-. due to improper and negligent treatment and due to transfusion of the blood without due verification health condition of the complainant resulted into acute liver failure (hvv and hav related). the complainant incurred a sumo of `2,50,000/- for follow up treatment. 5. the complainant got issued notice on 31.12.2008 to the opposite parties demanding for a sum of rs.40 lakh towards medical expenses, rs.5 lakh towards compensation for suffering from mental agony and on 9.2.2009 the opposite parties no.1 to 3 gave reply for which the complainant got issued rejoinder demanding for the amount mentioned in the notice that she got issued on 31.12.2008. 6. the opposite parties no.1 to 5 and 7 resisted the claim by filing written version and contended that they are not necessary parties to the complaint and that the complainant was admitted into the opposite parties no.1 to 3 hospital on 11.3.2008 with complaint of amenorrhea of four months duration, gum bleeding, headache of 10 days duration and blurring vision of one day duration. provisionally she was diagnosed as a case of evans syndrome, severe anaemia with haemoglobin 4.2 mgs/dl, with severe thrombocytopenia with retinal haemorrhage and platelet count of life threatening 12000 and in view of her serious condition which sometimes may lead bleeding in the brain, she was given immediate platelet transfusion as lifesaving procedure. she was referred to ophthalmologist, general physician, medical oncologist for optimal management and she was treated according to standard protocol and she had recovered well and was discharged on 2.4.2008 and during her stay in the hospital she was charged `1,88,256/-. 7. the complainant was again admitted to the opposite parties no.1 to 3 hospital on 18.7.2008 with complaint of swelling all over her body and she was directed to undergo tests such as urine routine and microscopic, blood sugar level, platelet count etc., and in view of improvement in her condition she was discharged on 19.7.2008. the complainant was discharged on 19.7.2008 and she was charged `8,656/-. again on 2.8.2008 she was admitted for delivery and she was discharged on 6.8.2008. she had undergone lscs and in view of adequate platelet count she was advised to taper of steroids as standard itp guidelines and during this period she was tested positive for hbsag virus. opinion of the gastroenterologist and herpetologist was taken. further investigations which will highlight abv investigation replicative state were sought for to plan further management of the patient. 8. the complainant in her notice dated 9.1.2009 suppressed her admission for delivery to the opposite partyno.1 hospital on 2.8.2008. the hospital has transfused the blood from its blood bank which follows standard national guidelines and the hospital would screen all the blood for hepatitis b hepatitis c, malaria and syphilis. there was no chance for transmission of any disease due to blood transfusion and the complainant had not followed the regular follow up treatment after she was discharged from the opposite parties no.1 to 3 hospital. she was admitted again on 21.8.2008 in the opposite party no.1 hospital with complaint of high grade fever with chills, vomiting, generalised weakness and itching. she was admitted in the intensive care unit and diagnosed with hepatitis (a andb) with fulminant hepatic failure. opinion of gastroenterologist was taken. 9. the complainant was given antiviral therapy for hepatitis-b. she was found to be igm anti hav positive which indicated acute hepatitis a infection which could be transmitted by contaminated food, water etc., which can cause acute liver failure. hbsag can also be caused by sources other than blood transfusion such as hair cutting saloon, beauty parlour or by sexual transmission. as the patient was not improving by conservative therapy, she was given an option for liver transplantation and she was discharged at her request in haemodynamically stable condition on 30.8.2008. the opposite parties had no knowledge of the treatment undergone by the complainant at indraprastha apollo hospital new delhi or the expenditure stated to have been incurred by her at the hospital. there was no negligence or deficiency in service on the part of the opposite parties no.1 to 3, 5 and 7 and prayed for dismissal of the complaint. 10. the opposite party no.8 has filed written version stating that the opposite party no.8 has no knowledge of the treatment administered to the complainant at the opposite parties no.1 to 3 hospital at indraprastha apollo hospital or the amount stated to have been incurred by the complainant for the treatment. it is contended that there is no consumer service provider relationship between the complainant and the opposite party no.8 and that there is no deficiency in service on the part of the opposite party no.8. it is contended that the complaint is not filed within the period of limitation and the amount claimed by the complainant is excessive and exorbitant. 11. the opposite party no.9 resisted the case contending that the complaint is not maintainable for non-joinder of m/s indraprastha apollo hospital new delhi and not impleading the doctors who conducted liver transplantation to the complainant. there was no negligence on the part of the opposite party no.4 in whose favour the opposite party no.9 has issued the insurance policy. the liability of the opposite party no.9 under professional indemnity insurance policy issued for the period 14.2.2008 to 13.2.2009 is limited to `5 lakh. the opposite parties no.4 and 9 have no knowledge of the treatment administered to the complainant at indraprastha apollo hospital new delhi. sdthe opposite party no.9 is not liable to pay any amount to the complainant as there was no deficiency in service on the part of the opposite party no.4 in administering treatment to the complainant. hence, prayed for dismissal of the complaint against the opposite parties no.4 and 9. 12. in support of her claim, the complainant has filed her affidavit and the documents, exs.a1 to a17. on behalf of the opposite parties, the fifth opposite party and the senior divisional manager of the 9th opposite party insurance company have filed their affidavits and the documents exs.b1 to b4. 13. the counsel for the opposite parties no.1 to 5 and 7 and the counsel for the opposite party no.9 have filed their written arguments. 14. the points for consideration are: 1. whether the opposite parties no.1 to 6 rendered deficiency in service while administering treatment to the complainant? 2. to what relief? 15. point no.1: the complainant visited the hospital of the opposite parties no.1 to 3 for treatment of gum bleeding and was admitted on 11.3.2008. several tests were conducted in the opposite parties no.1 to 3 hospital and she was discharged after a period of 22 days and during the course of the treatment she was transfused with blood. it is not disputed that the opposite parties no.4 to 6 administered treatment to the complainant. the admission record of the complainant would show that she was undergoing regular check-up for confirmed pregnancy and she was suffering from amenoria and gum bleeding as also headache. it is noted in the progress sheet that the complainant was asymptomatic and suffered from gum bleeding 10 days prior to the date of her admission in the opposite party 1 hospital. she was diagnosed with evans syndrome with severe anaemia with haemoglobin 4.2 gms/dl as also with severe thrombocytopenia with retinal haemorrhage and platelet count of 12000 and she was transfused blood. she was discharged on 2.4.2008 and as on the date of discharge she was normal and fit to be discharged. 16. the complainant was again admitted to the opposite partyno.1 hospital on 18.7.2008 and the opposite parties no.4 and 6 administered treatment to her. she was admitted with the complaint of pedal oedema (bilateral) and her platelet count was monitored, tt betamethasone injections were prescribed at 6 p.m. and 9.45 p.m. on 18.7.2008 and she was discharged on the next day i.e., on 19.7.2008. 17. on 02.8.2008 the complainant was admitted to the opposite party no.1 hospital, with the complaint of amenoria and ruptured membranes with breech at 10.15 a.m. and she delivered baby on 2.8.2008. she was discharged on 6.8.2008 and at the time of conducting lscs, she had undergone various investigations and they had shown her positive hbsag virus. the learned counsel for the opposite parties no.1 to 5 and 7 has contended that as the complainant is a potential carrier to transmit hbsag to any other persons including the hospital staff, they had taken universal precautions to perform surgery on the complaint who delivered a baby girl and the baby was healthy whom active and passive immunisation was administered which is followed for all hbsag + mothers. the opposite parties no.1 to 3 discharged the complainant on 6.8.2008 in a stable clinical condition. 18. on 21.08.2008 the complainant was admitted with complaint of high grade fever with chills, vomiting, generalized weakness and itching. she was diagnosed with suffering from acute hepatitis (a and b) with fulminant hepatic failure. the learned counsel for the opposite parties 1 to 3 has contended that after obtaining the opinion of gastroenterologist and hepatologist, the complainant was given antiviral therapy for hepatitis b. the complainant was found to be igm anti hav positive which indicates acute hepatitis a infection. according to the version of the opposite parties no.1 to 5 and 7, hav transmission could be transmitted by contaminated food, water, earlier childhood infections and hav infection reactivate other viral infections such as hbsag and anti-hbe positivity, low immune status and sometimes pregnancy related liver disorder. the learned counsel for the complainant would submit that the transfusion of the blood is the cause of the infection and the learned counsel for the opposite parties no.1 to 5 and 7 has submitted that the transfusion of blood is not the cause of transmission of infection. he has submitted that the blood which was transfused was already tested for hbsag and there was no chance of transmitting hbsag through blood transfusion in the opposite party no.1-hospital. 19. it is not known whether the complainant was treated in any other hospital before getting admitted in the opposite party no.1-hospital on 11.03.2008. she was admitted to the opposite party no.1-hospital for about four times and the blood was transfused to her during the period she was treated from 11.03.2008 till 2.04.2008. except this time there was no transfusion of blood was made at any time she was subsequently treated from 18.07.2008 till 19.07.2008, from 21.08.2008 till 30.08.2008, from 22.09.2008 till 29.08.2008. 20. the opposite parties no.1 to 5 and 7 have referred to annexure-i to explain the process of collection of blood and its verification and preservation by its blood bank. it is mentioned in the annexure-i that the name of the blood donor is registered and his blood sample is collected which would be rejected if haemoglobin percentage is lower than the prescribed value. the haemoglobin percentage is 13 gms for male and 12.5 gms and above for female. thereafter, medical history of the patient is collected and after physical examination, it would be rejected if found unfit and if found fit, the consent of donor is obtained and blood would be collected in 350 ml/450 ml bags and blood grouping test would be conducted and the bags would be labelled. the collected blood would be stored in untested blood bank refrigerator (350ml) and on centrifugation (450ml), plasma ,rbc,prp,ffp and after conducting tests for hiv,hbsag,hcv,vdrl,mp the blood would be stored which on requisition would be supplied to the patient after conducting cross matching test. 21. the other annexures, i.e., annexure-ii,iii are the copies of screening register and issue register maintained by the opposite party no.1-hospital. annexure-iv would show the bag number and the particulars of the blood that was transfused to the patients including the complainant in the opposite partyno.1-hospital. the certificate issued by dr.gupta who administered treatment to the complainant in indraprastha appollo hospital, new delhi reads as under: mrs parvathi sireesha has undergone right lobe liver transplantation for fulminant hepatitis b infection. it is not clear when she contacted this infection. during pregnancy her platelet counts had decreased and for this transfusion were given. apparently prior to this transfusion she had no evidence of hepatitis b. post transplantation she will require regular medication. 22. the learned counsel for the opposite parties no.1 to 5 and 7 would contend that dr gupta has not specifically mentioned that the liver dysfunction and transmission of hav infection is due to the sole cause of transmission of blood. dr.guptas certificate would show that the complainant was free from hav infection prior to transfusion of blood. however, the article written by rituprana mukarjee , ‘ pregnancy opens up pandoras box about the complications developed by the complainant which also contains the opinion of dr.gupta and filed by the complainant does not support in absolute terms of what he had mentioned in the certificate. some of the excerpts of the article are extracted hereunder: doctor speak how pregnancy could affect your liver dr.subash gupta, senior consultant, liver transplant, apollo hospital, explains what happened to parvathy during pregnancy and causes. “what triggered her condition is “what triggered her condition is uncertain. it could be that the hepatitis b virus was present in her body as a result of a previous infection. the virus could also have been transmitted during the blood transfusions given to increase her platelet count. her pregnancy suppressed the infection initially, but after she delivered, the virus multiplied rapidly, “he says. pregnancy also may have unexplained adverse effects on the liver. most pregnant women are effected by viral disease such as hepatitis a and e, which are spread by unclean food and water. apart from this, there are three other ways that the liver can be affected. acute fatty liver during pregnancy the liver enlarged and becomes more fatty – physiological changes happen to accommodate the growing baby. the liver cells fill up with fat globules which eventually cause liver failure. nausea, vomiting and jaundice are the symptoms of this condition which doesnt have any known cause. hellp syndrome in this condition, a number of cellular changes take place. the red cells in the liver breaks down, and the liver can soften to such an extent that it fractures. liver dysfunction caused by eclampsia eclampsia is is characterised by hypertension or high blood pressure which affects theliver as well. again, eclampsia is a condition of pregnancy which has no known cause. obstructive cholestasis this is a pregnancy-related liver disorder in which there are abnormalities in the flow of bile, leading to a build-up of bile acids in the mothers blood. 23. what doctor gupta told the author is that the exact cause for the complainants condition is uncertain and hepatitis b virus could be present in the complainants body as a result of previous infection or the virus could have been transmitted due to blood transfusion made in order to increase the platelet count of the complainant. the opposite parties would contend that hepatitis a can be caused by means other than blood transfusion such as due acute liver failure, contaminated food and water, hair cutting saloons, beauty parlours, intercourse etc., it is difficult to show that the complainant had contacted the virus due to any contaminated food or water or at any beauty parlour. insofar as the sexual mode of transmission of virus is concerned, it is improbable as a lady in advanced stage of pregnancy cannot be expected to have intercourse. the certificate issued by dr.subash gupta indicates that the probable cause of infection is blood transfusion to the complainant. 24. the learned counsel for the opposite parties no.1 to 5 and 7 has relied upon the decision of the honble national commission in “ supriya gupta vs the trustees of beach candy hospital and research centre, mumbai in o.p.no. 7 of 1997 decided on 27.10.2005. in that case, the complainant had undergone coronary bypass surgery on 23.08.1995 and during the post-operative stage it was found that he contracted hepatitis and the level of infection was very high and it was also found that he had an attack of serum hepatitis b. it was argued on behalf of the complainant that he had no past history of hepatitis and prior to surgery it was found negative and that he was not admitted to any other hospital nor any treatment was administered to him for any other illness and he contracted infection when blood was transfused to him by the hospital. it was contended on behalf of the hospital that the complainant had undergone tooth extraction and he did not submit the reports prior to his admission and after he was discharged from the hospital. the national commission held that the complainant had not proved that he contracted the infection while undergoing operation and not due to a) use of infected needles whilst administering injection, b) blood transfusion-exposure to infected blood products; c) sexual intercourse; d) undergoing a surgical procedure or operation and e) by dental extraction. 25. recently, the national commission had dealt with a case in “escort heart institute and research centre vs harbans kaur chawla and others” iv (2012) cpj 318 where the patient filed complaint stating that due to transfusion of infected blood, he contracted hepatitis. the national commission held that only reasonable and not foolproof precautions were taken in screening the blood and therefore it confirmed the award for `50,000/- passed by the state commission. the national commission held that: we agree with the findings of the state commission that there is adequate evidence on record to establish that there is clear nexus between the blood transfusion on the respondent no.1 during the course of her cardiac surgery at the appellant/institute and her contracting hepatitis b, 60 days later especially since respondent no.1 had not undergone any other blood transfusion except at the appellant/institute. the report from p.g.i. hospital, chandigarh which is a highly reputed independent institution with specialized healthcare facilities has confirmed this fact in writing. we note that the appellant/institute has in its defence produced documentary evidence to show that there is proper screening of all blood donors as also the blood donated by them and the latter is done through the elisa method. we also note that as per medical literature, it is internationally well-accepted that even after screening through a reliable test like the elisa test, there is still a possibility of the hepatitis virus not being detected in the blood if it is in the early stages of incubation which may have happened in the instant case. in this connection, we note that for screening of blood, two tests are in use: (i) elisa test; and (ii) radio immunoassay test. we further note from medical literature extracted from wikipedia that the radio immunoassay test vis-à-vis the elisa test is considered to be more sensitive and specific and also less expensive method to screen blood for possible viruses and the american red cross routinely uses this test to screen blood. in this method, the antigen-antibody reaction is measured using radioactive signals whereas in the elisa method it is measured by using colorimetric signals. it is also worth noting that elisa test is not considered conclusive in detecting the hiv viruses and its results usually have to be confirmed by a subsequent test like the western blot test. 26. the following points can be culled from the aforementioned decisions: i) incubation period for hepatitis b virus is 40 days to 180 days . ii) even after testing blood, the overall frequency of hepatitis in patients receiving hbsag negative blood from volunteer donors is four to six times high compared to the patients who are not transfused with blood. iii) radio immunoassay test is considered more sensitive and specific for screening blood compared to elisa test. iv) elisa test is not considered conclusive in detecting hiv virus. v) hepatitis b could be contracted by a) a) use of infected needles whilst administering injection; b) blood transfusion – exposure to infected blood products ; c) sexual intercourse; d) undergoing a surgical procedure or operation and e) by dental extraction 27. in escorts heart institute (supra) the complainant had undergone coronary artery bypass grafting and during the time of surgery, blood was transfused to her which was found to be infected with hepatitis b virus, viral marker test confirmed that hepatitis b was caused of transfusion of hbsag infected blood. the pgi hospitalchandigarh in its discharge summary has reported that the complainant was a case of post transfusion hepatitis b with grade-i and she was treated therefor. 28. in the case on hand, in the screening register and issue register names of persons who had donated blood and the screening tests conducted are clearly mentioned. the complainant was not treated in any other hospital since the date of her admission for the first time in the opposite party hospital on 11.3.2008 till she was discharged with advise for liver transplantation on 29.8.2008, no blood was transfused to her except the one made on 11.3.2008 at opposite party no.1 hospital. the certificate issued by dr. guptha to the effect that blood transfusion could be contributed for transmission of hepatitis b would indicate that virus dormant at the time of screening test conducted by the blood bank could not be detected due to pregnancy of the complainant. 29. the complainants pregnancy suppressed the virus which reactivated and multiplied and was detect just two days prior to her delivery. the screening procedure described at clause 7 of annexure 1 would indicate that the blood bank of the opposite party no.1 hospital adopted elisa test which is not approved by the honble national commission in preference to radio immunoassay test. the screening procedure stated in annexure-1 read as under: 7.   screening procedure 7.1  4th generaion micro elisa is done to for all the 3 viral diseases a. hepatitis –b surface antigen b. hepatitis – c virus c. hiuman immunodeficiency virus 7.2 all the donor samples are properly labelled and centrifuged for ½ an hour at 5000 rpm 7.3 abbottaxsym fully automated instrument is used for all the three tests. 7.4. check the inventory of abott for reagent matrix cells, sample cups and reaction vessels and kits and no.of tests. 7.5 solution is checked for mopsoln, matrix cell wash, line diluent. 7.6 wastage box is checked, if full the machine will not run. it is emptied first. 7.7. the samples are loaded after checking the labels and labels are entered in to the system. 7.8. run request is given 7.9. after 45 minutes check the results. 7.10 take out the print out from the printer attached to the instrument. 7.11 controls are run once in 24 hours 7.12 probe cleaning is done in 48 hours 7.13 three tests are run on each donor sample for hiv, hbsagand hcv 7.14 screening negative or postive depending on the cut off value for each test according to the software of the machine 7.15 before running the test calibration is done for each kit of 100 test for hiv, hbsag and hcv and print out is taken 30. even after, the collected blood is screened by conducting elisa test, there is possibility of the hepatitis virus not being detected if it is early stage of incubation which, we consider may have happened in the instant case. the complainants pregnancy may have, in the words of dr.gupta suppressed the virus in the transfused blood from being detected. the hepatitis caused to the complainants liver which was replaced and transplanted at indraprastha apollo hospital. the complainant stated to have incurred an expenditure of `40 lakhsfrom the time she was admitted to the opposite party hospital on 11.3.2008 till she was treated in indraprastha apollo hospital. in escorts heart institute case, the national commission confirmed the award passed by the state commission for `50,000/- towards compensation. in that case, the complainants liver was not extensively damaged and there was no need for transplantation of liver. the complainant claimed for an amount of `6,95,000/- and the state commission held liable only the hospital and not the doctor and awarded the sum of `50,000/- in favour of the complainant. as the order of the state commission confirmed by the national commission, the ratio laid therein is squarely applicable to the facts of the case on hand. the complainant claimed an amount of `40 lakhs. the complainant has stated that she has incurred an amount of `1,90,000/-, `60,000/- and `1,00,000/- at the opposite partyno.1 hospital and `29,50,000/- lakhs at indraprastha hospital. 31. it is to be considered while quantifying the compensation to be awarded that the opposite party no.1 hospital and its blood bank had taken every care while screening the blood which was transfused to the complainant. insofar as the negligence of the opposite parties no.1 to 3 hospital is concerned, the radio immunoassay test could have been preferred to elisa test and the lack of fool proof precautions can be pressed into service to award an amount of rs.6 lakhs which is payable jointly and severally by the opposite parties no.1 to 11. the opposite parties no.8 to 11 by virtue of issuing the insurance policies in favour of the opposite parties no.1 to 7 are liable to pay the amount to the complainant. 32. in the result the complaint is allowed directing the opposite parties no.1 to 11 to pay the amount of `6 lakhs to the complainant together with costs of `5,000/-. time for compliance four weeks.
Judgment:

Oral Order: (Sri R.Lakshminarasimha Rao, Honble Member)

1. The complaint is filed seeking direction to the opposite parties to pay a sum of `40 lakh with interest towards medical expenses and treatment, `5 lakh with interest towards compensation for mental agony and `25,000/- towards costs

2. The averments of the complaint are that on 11.3.2008 she was admitted in the opposite party no.1 hospital for treatment of gum bleeding and she was treated for a period for 22 days and blood was transfused to her where after her condition was further deteriorated. After her condition become normal, she was discharged on 2.4.2008 and the complainant incurred an amount of `1,90,000/- towards medial expenditure. On 18.7.2008 she was again admitted as inpatient in the opposite party no.1 hospital and during the time of her admission for the first time she was treated by the opposite parties no.4 to 6 and when she was admitted for the second time the opposite parties no.4 and 6 administered treatment to her and discharged her on 19.7.2008 and the complainant incurred an amount of `10,000/- towards consultation fees and medicine.

3. On 2.8.2008 the complainant was admitted for delivery in the opposite party no.1 hospital and she had undergone LSCS and she gave birth to a female child. The opposite parties conducted various tests and diagnosed the complainant suffering from hepatitis-B. Hepatatits B was caused due to blood transfusion done to the complainant during the course of treatment between 11.3.2008 to 2.4.2008. The blood donors who donated blood to the complainant are not infected with Hepatits-B. On 6.8.2008 the complainant was discharged from the opposite party no.1 hospital and she incurred a sum of Rs.60,000/- for the consultation fees and medicines. On 21.8.2008 the complainant was again admitted to the opposite party no.1 hospital and she was subjected to serum test, liver function test, urine test and complete blood picture test. The opposite parties no.4 to 7 treated the complainant and on 30.8.2008 she was discharged with an advise to go for liver transplantation. The complainant incurred a sum of `1,00,000/- towards consultation excluding the costs of the medicine and charges for the tests.

4. On 31.1.2008 the complainant was admitted in Indraprastha Apollo Hospital at New Delhi where she had undergone liver transplantation and donee was her sister Rupa Kala Chaitanya and she was discharged on 22.9.2008 in stable condition from the hospital. The complainant visited Indraprastha Apollo Hospital for periodical check-up for three times till 10.10.2008. The complainant incurred an amount of `22,50,000/- towards consultation fees, admission charges and other expenses and she incurred a sum of `7 lakhs towards charges for medicine, tests and transportation and she had spent a sum of `29,50,000/-. Due to improper and negligent treatment and due to transfusion of the blood without due verification health condition of the complainant resulted into acute liver failure (HVV and HAV related). The complainant incurred a sumo of `2,50,000/- for follow up treatment.

5. The complainant got issued notice on 31.12.2008 to the opposite parties demanding for a sum of Rs.40 lakh towards medical expenses, Rs.5 lakh towards compensation for suffering from mental agony and on 9.2.2009 the opposite parties no.1 to 3 gave reply for which the complainant got issued rejoinder demanding for the amount mentioned in the notice that she got issued on 31.12.2008.

6. The opposite parties no.1 to 5 and 7 resisted the claim by filing written version and contended that they are not necessary parties to the complaint and that the complainant was admitted into the opposite parties no.1 to 3 hospital on 11.3.2008 with complaint of amenorrhea of four months duration, gum bleeding, headache of 10 days duration and blurring vision of one day duration. Provisionally she was diagnosed as a case of Evans Syndrome, severe anaemia with haemoglobin 4.2 mgs/dl, with severe thrombocytopenia with retinal haemorrhage and platelet count of life threatening 12000 and in view of her serious condition which sometimes may lead bleeding in the brain, she was given immediate platelet transfusion as lifesaving procedure. She was referred to ophthalmologist, general physician, medical oncologist for optimal management and she was treated according to standard protocol and she had recovered well and was discharged on 2.4.2008 and during her stay in the hospital she was charged `1,88,256/-.

7. The complainant was again admitted to the opposite parties no.1 to 3 hospital on 18.7.2008 with complaint of swelling all over her body and she was directed to undergo tests such as urine routine and microscopic, blood sugar level, platelet count etc., and in view of improvement in her condition she was discharged on 19.7.2008. The complainant was discharged on 19.7.2008 and she was charged `8,656/-. Again on 2.8.2008 she was admitted for delivery and she was discharged on 6.8.2008. She had undergone LSCS and in view of adequate platelet count she was advised to taper of steroids as standard ITP guidelines and during this period she was tested positive for HBsAg virus. Opinion of the gastroenterologist and herpetologist was taken. Further investigations which will highlight ABV investigation replicative state were sought for to plan further management of the patient.

8. The complainant in her notice dated 9.1.2009 suppressed her admission for delivery to the opposite partyno.1 hospital on 2.8.2008. The hospital has transfused the blood from its blood bank which follows standard national guidelines and the hospital would screen all the blood for hepatitis B hepatitis C, malaria and syphilis. There was no chance for transmission of any disease due to blood transfusion and the complainant had not followed the regular follow up treatment after she was discharged from the opposite parties no.1 to 3 hospital. She was admitted again on 21.8.2008 in the opposite party no.1 hospital with complaint of high grade fever with chills, vomiting, generalised weakness and itching. She was admitted in the intensive care unit and diagnosed with hepatitis (A andB) with fulminant hepatic failure. Opinion of gastroenterologist was taken.

9. The complainant was given antiviral therapy for hepatitis-B. She was found to be IgM anti HAV positive which indicated acute hepatitis A infection which could be transmitted by contaminated food, water etc., which can cause acute liver failure. HBsAg can also be caused by sources other than blood transfusion such as hair cutting saloon, beauty parlour or by sexual transmission. As the patient was not improving by conservative therapy, she was given an option for liver transplantation and she was discharged at her request in haemodynamically stable condition on 30.8.2008. The opposite parties had no knowledge of the treatment undergone by the complainant at Indraprastha Apollo Hospital New Delhi or the expenditure stated to have been incurred by her at the hospital. There was no negligence or deficiency in service on the part of the opposite parties no.1 to 3, 5 and 7 and prayed for dismissal of the complaint.

10. The opposite party no.8 has filed written version stating that the opposite party no.8 has no knowledge of the treatment administered to the complainant at the opposite parties no.1 to 3 hospital at Indraprastha Apollo Hospital or the amount stated to have been incurred by the complainant for the treatment. It is contended that there is no consumer service provider relationship between the complainant and the opposite party no.8 and that there is no deficiency in service on the part of the opposite party no.8. It is contended that the complaint is not filed within the period of limitation and the amount claimed by the complainant is excessive and exorbitant.

11. The opposite party no.9 resisted the case contending that the complaint is not maintainable for non-joinder of M/s Indraprastha Apollo Hospital New Delhi and not impleading the doctors who conducted liver transplantation to the complainant. There was no negligence on the part of the opposite party no.4 in whose favour the opposite party no.9 has issued the insurance policy. The liability of the opposite party no.9 under professional indemnity insurance policy issued for the period 14.2.2008 to 13.2.2009 is limited to `5 lakh. The opposite parties no.4 and 9 have no knowledge of the treatment administered to the complainant at Indraprastha Apollo Hospital New Delhi. sdThe opposite party no.9 is not liable to pay any amount to the complainant as there was no deficiency in service on the part of the opposite party no.4 in administering treatment to the complainant. Hence, prayed for dismissal of the complaint against the opposite parties no.4 and 9.

12. In support of her claim, the complainant has filed her affidavit and the documents, Exs.A1 to A17. On behalf of the opposite parties, the fifth opposite party and the Senior Divisional Manager of the 9th opposite party insurance company have filed their affidavits and the documents Exs.B1 to B4.

13. The counsel for the opposite parties no.1 to 5 and 7 and the counsel for the opposite party no.9 have filed their written arguments.

14. The points for consideration are:

1. Whether the opposite parties no.1 to 6 rendered deficiency in service while administering treatment to the complainant?

2. To what relief?

15. POINT NO.1: The complainant visited the hospital of the opposite parties no.1 to 3 for treatment of gum bleeding and was admitted on 11.3.2008. Several tests were conducted in the opposite parties no.1 to 3 hospital and she was discharged after a period of 22 days and during the course of the treatment she was transfused with blood. It is not disputed that the opposite parties no.4 to 6 administered treatment to the complainant. The admission record of the complainant would show that she was undergoing regular check-up for confirmed pregnancy and she was suffering from amenoria and gum bleeding as also headache. It is noted in the progress sheet that the complainant was asymptomatic and suffered from gum bleeding 10 days prior to the date of her admission in the opposite party 1 hospital. She was diagnosed with Evans Syndrome with severe anaemia with haemoglobin 4.2 gms/dl as also with severe thrombocytopenia with retinal haemorrhage and platelet count of 12000 and she was transfused blood. She was discharged on 2.4.2008 and as on the date of discharge she was normal and fit to be discharged.

16. The complainant was again admitted to the opposite partyno.1 hospital on 18.7.2008 and the opposite parties no.4 and 6 administered treatment to her. She was admitted with the complaint of pedal oedema (bilateral) and her platelet count was monitored, TT Betamethasone injections were prescribed at 6 p.m. and 9.45 p.m. on 18.7.2008 and she was discharged on the next day i.e., on 19.7.2008.

17. On 02.8.2008 the complainant was admitted to the opposite party no.1 hospital, with the complaint of amenoria and ruptured membranes with breech at 10.15 a.m. and she delivered baby on 2.8.2008. She was discharged on 6.8.2008 and at the time of conducting LSCS, she had undergone various investigations and they had shown her positive HBsAG virus. The learned counsel for the opposite parties no.1 to 5 and 7 has contended that as the complainant is a potential carrier to transmit HBsAG to any other persons including the hospital staff, they had taken universal precautions to perform surgery on the complaint who delivered a baby girl and the baby was healthy whom active and passive immunisation was administered which is followed for all HBsAG + mothers. The opposite parties no.1 to 3 discharged the complainant on 6.8.2008 in a stable clinical condition.

18. On 21.08.2008 the complainant was admitted with complaint of high grade fever with chills, vomiting, generalized weakness and itching. She was diagnosed with suffering from acute hepatitis (A and B) with Fulminant Hepatic Failure. The learned counsel for the opposite parties 1 to 3 has contended that after obtaining the opinion of Gastroenterologist and Hepatologist, the complainant was given antiviral therapy for hepatitis B. The complainant was found to be IgM anti HAV positive which indicates acute Hepatitis A infection. According to the version of the opposite parties no.1 to 5 and 7, HAV transmission could be transmitted by contaminated food, water, earlier childhood infections and HAV infection reactivate other viral infections such as HBSAG and anti-HBE positivity, low immune status and sometimes pregnancy related liver disorder. The learned counsel for the complainant would submit that the transfusion of the blood is the cause of the infection and the learned counsel for the opposite parties no.1 to 5 and 7 has submitted that the transfusion of blood is not the cause of transmission of infection. He has submitted that the blood which was transfused was already tested for HBsAg and there was no chance of transmitting HBsAg through blood transfusion in the opposite party no.1-hospital.

19. It is not known whether the complainant was treated in any other hospital before getting admitted in the opposite party no.1-hospital on 11.03.2008. She was admitted to the opposite party no.1-hospital for about four times and the blood was transfused to her during the period she was treated from 11.03.2008 till 2.04.2008. Except this time there was no transfusion of blood was made at any time she was subsequently treated from 18.07.2008 till 19.07.2008, from 21.08.2008 till 30.08.2008, from 22.09.2008 till 29.08.2008.

20. The opposite parties no.1 to 5 and 7 have referred to annexure-I to explain the process of collection of blood and its verification and preservation by its blood bank. It is mentioned in the Annexure-I that the name of the blood donor is registered and his blood sample is collected which would be rejected if haemoglobin percentage is lower than the prescribed value. The haemoglobin percentage is 13 gms for male and 12.5 gms and above for female. Thereafter, medical history of the patient is collected and after physical examination, it would be rejected if found unfit and if found fit, the consent of donor is obtained and blood would be collected in 350 ml/450 ml bags and blood grouping test would be conducted and the bags would be labelled. The collected blood would be stored in untested blood bank refrigerator (350ml) and on centrifugation (450ml), plasma ,RBC,PRP,FFP and after conducting tests for HIV,HBsAg,HCV,VDRl,MP the blood would be stored which on requisition would be supplied to the patient after conducting cross matching test.

21. The other annexures, i.e., annexure-ii,iii are the copies of screening register and issue register maintained by the opposite party no.1-hospital. Annexure-IV would show the bag number and the particulars of the blood that was transfused to the patients including the complainant in the opposite partyno.1-hospital. The certificate issued by Dr.Gupta who administered treatment to the complainant in Indraprastha Appollo Hospital, New Delhi reads as under:

Mrs Parvathi Sireesha has undergone right lobe liver transplantation for fulminant hepatitis B infection. It is not clear when she contacted this infection. During pregnancy her platelet counts had decreased and for this transfusion were given. Apparently prior to this transfusion she had no evidence of hepatitis B. Post transplantation she will require regular medication.

22. The learned counsel for the opposite parties no.1 to 5 and 7 would contend that Dr Gupta has not specifically mentioned that the liver dysfunction and transmission of HAV infection is due to the sole cause of transmission of blood. Dr.Guptas certificate would show that the complainant was free from HAV infection prior to transfusion of blood. However, the article written by Rituprana Mukarjee , ‘ Pregnancy opens up pandoras box about the complications developed by the complainant which also contains the opinion of Dr.Gupta and filed by the complainant does not support in absolute terms of what he had mentioned in the certificate. Some of the excerpts of the Article are extracted hereunder:

DOCTOR SPEAK

HOW PREGNANCY COULD AFFECT YOUR LIVER

Dr.Subash Gupta, senior consultant, liver transplant, Apollo Hospital, explains what happened to Parvathy during pregnancy and causes. “What triggered her condition is “What triggered her condition is uncertain. It could be that the Hepatitis B virus was present in her body as a result of a previous infection. The virus could also have been transmitted during the blood transfusions given to increase her platelet count. Her pregnancy suppressed the infection initially, but after she delivered, the virus multiplied rapidly, “he says.

Pregnancy also may have unexplained adverse effects on the liver. Most pregnant women are effected by viral disease such as Hepatitis A and E, which are spread by unclean food and water. Apart from this, there are three other ways that the liver can be affected.

Acute Fatty Liver

During pregnancy the liver enlarged and becomes more fatty – physiological changes happen to accommodate the growing baby. The liver cells fill up with fat globules which eventually cause liver failure. Nausea, vomiting and jaundice are the symptoms of this condition which doesnt have any known cause.

HELLP Syndrome

In this condition, a number of cellular changes take place. The red cells in the liver breaks down, and the liver can soften to such an extent that it fractures.

Liver Dysfunction caused by eclampsia

Eclampsia is is characterised by hypertension or high blood pressure which affects theliver as well. Again, eclampsia is a condition of pregnancy which has no known cause.

Obstructive cholestasis

This is a pregnancy-related liver disorder in which there are abnormalities in the flow of bile, leading to a build-up of bile acids in the mothers blood.

23. What doctor Gupta told the author is that the exact cause for the complainants condition is uncertain and Hepatitis B Virus could be present in the complainants body as a result of previous infection or the virus could have been transmitted due to blood transfusion made in order to increase the platelet count of the complainant. The opposite parties would contend that Hepatitis A can be caused by means other than blood transfusion such as due acute liver failure, contaminated food and water, hair cutting saloons, beauty parlours, intercourse etc., It is difficult to show that the complainant had contacted the virus due to any contaminated food or water or at any beauty parlour. Insofar as the sexual mode of transmission of virus is concerned, it is improbable as a lady in advanced stage of pregnancy cannot be expected to have intercourse. The certificate issued by Dr.Subash Gupta indicates that the probable cause of infection is blood transfusion to the complainant.

24. The learned counsel for the opposite parties no.1 to 5 and 7 has relied upon the decision of the Honble National Commission in “ Supriya Gupta vs The Trustees of Beach Candy Hospital and Research Centre, Mumbai in O.P.No. 7 of 1997 decided on 27.10.2005. In that case, the complainant had undergone coronary bypass surgery on 23.08.1995 and during the post-operative stage it was found that he contracted Hepatitis and the level of infection was very high and it was also found that he had an attack of serum Hepatitis B. It was argued on behalf of the complainant that he had no past history of Hepatitis and prior to surgery it was found negative and that he was not admitted to any other hospital nor any treatment was administered to him for any other illness and he contracted infection when blood was transfused to him by the hospital. It was contended on behalf of the hospital that the complainant had undergone tooth extraction and he did not submit the reports prior to his admission and after he was discharged from the hospital. The National Commission held that the complainant had not proved that he contracted the infection while undergoing operation and not due to a) use of infected needles whilst administering injection, b) blood transfusion-exposure to infected blood products; c) sexual intercourse; d) undergoing a surgical procedure or operation and e) by dental extraction.

25. Recently, the National Commission had dealt with a case in “Escort Heart Institute and Research Centre vs Harbans Kaur Chawla and others” IV (2012) CPJ 318 where the patient filed complaint stating that due to transfusion of infected blood, he contracted Hepatitis. The National Commission held that only reasonable and not foolproof precautions were taken in screening the blood and therefore it confirmed the award for `50,000/- passed by the State Commission. The National Commission held that:

We agree with the findings of the State Commission that there is adequate evidence on record to establish that there is clear nexus between the blood transfusion on the Respondent No.1 during the course of her cardiac surgery at the Appellant/Institute and her contracting Hepatitis B, 60 days later especially since Respondent No.1 had not undergone any other blood transfusion except at the Appellant/Institute. The report from P.G.I. Hospital, Chandigarh which is a highly reputed independent institution with specialized healthcare facilities has confirmed this fact in writing. We note that the Appellant/Institute has in its defence produced documentary evidence to show that there is proper screening of all blood donors as also the blood donated by them and the latter is done through the ELISA method. We also note that as per medical literature, it is internationally well-accepted that even after screening through a reliable test like the ELISA test, there is still a possibility of the Hepatitis virus not being detected in the blood if it is in the early stages of incubation which may have happened in the instant case. In this connection, we note that for screening of blood, two tests are in use: (i) ELISA test; and (ii) Radio Immunoassay test. We further note from medical literature extracted from Wikipedia that the Radio Immunoassay test vis-à-vis the ELISA test is considered to be more sensitive and specific and also less expensive method to screen blood for possible viruses and the American Red Cross routinely uses this test to screen blood. In this method, the antigen-antibody reaction is measured using radioactive signals whereas in the ELISA method it is measured by using colorimetric signals. It is also worth noting that ELISA test is not considered conclusive in detecting the HIV viruses and its results usually have to be confirmed by a subsequent test like the Western Blot Test.

26. The following points can be culled from the aforementioned decisions:

i) Incubation period for Hepatitis B virus is 40 days to 180 days .

ii) Even after testing blood, the overall frequency of hepatitis in patients receiving HBsAg negative blood from volunteer donors is four to six times high compared to the patients who are not transfused with blood.

iii) Radio Immunoassay test is considered more sensitive and specific for screening blood compared to ELISA test.

iv) ELISA test is not considered conclusive in detecting HIV virus.

v) Hepatitis B could be contracted by a) a) use of infected needles whilst administering injection; b) blood transfusion – exposure to infected blood products ; c) sexual intercourse; d) undergoing a surgical procedure or operation and e) by dental extraction

27. In Escorts Heart Institute (supra) the complainant had undergone coronary artery bypass grafting and during the time of surgery, blood was transfused to her which was found to be infected with hepatitis B virus, Viral Marker Test confirmed that Hepatitis B was caused of transfusion of HBsAG infected blood. The PGI HospitalChandigarh in its Discharge summary has reported that the complainant was a case of post transfusion Hepatitis B with Grade-I and she was treated therefor.

28. In the case on hand, in the Screening Register and Issue Register names of persons who had donated blood and the screening tests conducted are clearly mentioned. The complainant was not treated in any other hospital since the date of her admission for the first time in the opposite party hospital on 11.3.2008 till she was discharged with advise for liver transplantation on 29.8.2008, no blood was transfused to her except the one made on 11.3.2008 at opposite party no.1 hospital. The certificate issued by Dr. Guptha to the effect that blood transfusion could be contributed for transmission of Hepatitis B would indicate that virus dormant at the time of screening test conducted by the blood bank could not be detected due to pregnancy of the complainant.

29. The complainants pregnancy suppressed the virus which reactivated and multiplied and was detect just two days prior to her delivery. The screening procedure described at clause 7 of annexure 1 would indicate that the blood bank of the opposite party no.1 hospital adopted ELISA test which is not approved by the Honble National Commission in preference to Radio Immunoassay Test. The screening procedure stated in Annexure-1 read as under:

7.   SCREENING PROCEDURE

7.1  4TH generaion Micro Elisa is done to for all the 3 viral diseases

a. Hepatitis –B surface Antigen

b. Hepatitis – C Virus

c. Hiuman Immunodeficiency Virus

7.2 All the donor samples are properly labelled and centrifuged for ½ an hour at 5000 RPM

7.3 Abbottaxsym fully automated instrument is used for all the three tests.

7.4. Check the inventory of Abott for reagent matrix cells, sample cups and Reaction vessels and kits and No.of tests.

7.5 Solution is checked for Mopsoln, Matrix cell wash, Line diluent.

7.6 Wastage box is checked, if full the machine will not run. It is emptied first.

7.7. The samples are loaded after checking the labels and labels are entered in to the system.

7.8. Run request is given

7.9. After 45 minutes check the results.

7.10 Take out the print out from the printer attached to the instrument.

7.11 Controls are run once in 24 hours

7.12 Probe cleaning is done in 48 hours

7.13 Three tests are run on each donor sample for HIV, HBsAg

and HCV

7.14 Screening Negative or Postive depending on the cut off value for each test according to the software of the machine

7.15 Before running the test calibration is done for each kit of 100 test for HIV, HBsAg and HCV and print out is taken

30. Even after, the collected blood is screened by conducting Elisa test, there is possibility of the hepatitis virus not being detected if it is early stage of incubation which, we consider may have happened in the instant case. The complainants pregnancy may have, in the words of Dr.Gupta suppressed the virus in the transfused blood from being detected. The Hepatitis caused to the complainants liver which was replaced and transplanted at Indraprastha Apollo Hospital. The complainant stated to have incurred an expenditure of `40 lakhsfrom the time she was admitted to the opposite party hospital on 11.3.2008 till she was treated in Indraprastha Apollo Hospital. In Escorts Heart Institute Case, the National Commission confirmed the award passed by the State Commission for `50,000/- towards compensation. In that case, the complainants liver was not extensively damaged and there was no need for transplantation of liver. The complainant claimed for an amount of `6,95,000/- and the State Commission held liable only the hospital and not the doctor and awarded the sum of `50,000/- in favour of the complainant. As the order of the State Commission confirmed by the National Commission, the ratio laid therein is squarely applicable to the facts of the case on hand. The complainant claimed an amount of `40 lakhs. The complainant has stated that she has incurred an amount of `1,90,000/-, `60,000/- and `1,00,000/- at the opposite partyno.1 hospital and `29,50,000/- lakhs at Indraprastha Hospital.

31. It is to be considered while quantifying the compensation to be awarded that the opposite party no.1 hospital and its blood bank had taken every care while screening the blood which was transfused to the complainant. Insofar as the negligence of the opposite parties no.1 to 3 hospital is concerned, the Radio Immunoassay Test could have been preferred to Elisa Test and the lack of fool proof precautions can be pressed into service to award an amount of Rs.6 lakhs which is payable jointly and severally by the opposite parties no.1 to 11. The opposite parties no.8 to 11 by virtue of issuing the insurance policies in favour of the opposite parties no.1 to 7 are liable to pay the amount to the complainant.

32. In the result the complaint is allowed directing the opposite parties no.1 to 11 to pay the amount of `6 lakhs to the complainant together with costs of `5,000/-. Time for compliance four weeks.