Shahul Hameed vs Apollo Hospital Enterprises

JURISDICTIONAL facts as culled out from the materials placed on record may in brevity be related in order to understand the crux of the issue arising for consideration in this action.

ONE Master Shahul Hameed (1st complainant) aged 13 years was suffering from fever in the month of November, 1996. His mother, Smt. M.M. Rahamathunnissa (2nd complainant) took her son, the 1st complainant to the family Doctor S. Vasanthakumar of K.K. Nagar. The said Doctor advised for certain tests to be taken in M/s. Apollo Hospital Enterprises Ltd. (1st opposite party) of which Dr. Pratap C. Reddy (2nd opposite party) is the Chairman and Mr. M.A. Thirunarayan, M.D., is a Consultant Microbiologist attached to the said hospital (3rd opposite party). As per the advice of the family doctor, the 2nd complainant mother took her son the 1st complainant to the 1st opposite party hospital on 1.11.1996 at about 5.30 p.m. The complainants were advised by the 1st opposite party hospital to pay a sum of Rs. 530/-, Rs. 185/- and Rs. 345/- under three different slips towards charges for various tests. The amounts so demanded by the 1st opposite party hospital were paid by the complainants.

Necessary and requisite samples, it appears, were taken by the 1st opposite party hospital for the conduct of the tests. After the taking of the sample, it appears, the complainants were asked to come the next day to get the results. The results for the two tests namely (A) Smear for M.P. and (B) Urine routine were given to the complainants on 2.11.1996. The results for urine for culture and sensitivity and blood for dark ground illumination of leptospira were not given on that day. The 1st opposite party hospital demanded fresh sample of blood for conducting the test for leptospira and urine for culture sensitivity. The complainants refused to obliged in giving fresh blood and urine for the performance of the two tests.

SUBSEQUENTLY, the tests for the complainant, it appears, were conducted in the Child Trust Hospital and he was admitted as an in-patient on 8.11.1996 and ultimately he was discharged from the said hospital on 10.11.1996. In the meantime, the complainants caused a legal notice dated 6.11.1996 to be sent to the 1st opposite party hospital alleging deficiency in service on their part for the alleged delay caused in giving the results of the report as respects leptospira. The notice so issued elicited a reply dated 11.12.1996 from the 1st opposite party hospital denying the deficiency in service on their part as alleged by the complainants.

IN such a backdrop and setting the complainants knocked at the doors of the District Consumer Disputes Redressal Forum, Chennai (South) for certain reliefs as prayed for in the complaint alleging deficiency in service on the part of the opposite parties. The opposite parties in pith and substance would contend that there was no deficiency in service on their part. They would however admit that the 1st complainant Master Shahul Hameed came along with her mother, the 2nd complainant Smt. M.M. Rahamathunnissa, came to the 1st opposite party hospital at 5.24 p.m. on 1.11.1996 for the following tests : (1) Smear for M.P. (2) Urine routine (3) Urine for culture and sensitivity (4) Blood for dark ground illumination of leptospira.

They would however contend that as for the tests to be done namely Serology for leptospira, Blood for dark ground illumination of leptospira, only the Microbiologists and the Senior Technicians give opinion on their special tests. They would also state that the Department of Microbiology does not work after 5 p.m. and only in cases where an emergency arises, the Microbiologists on emergency duty are called in. Since the 1st complainant came for routine examination, his mother, the 2nd complainant was informed about the same and she was requested to bring her son for the specific test on the next day, 2.11.1996. They would also state that as far as dark field examination of blood for Leptospira is concerned, the same will have to be done on a fresh sample of blood within two hours of collection.

THE complainants did not at all oblige in giving fresh sample of blood as requested for by them and consequently the tests were unable to be conducted. As such, the complaint is liable to be dismissed.

THE Forum below on consideration of the materials placed on record dismissed the complaint by its order dated 17.3.1998 holding that there was no deficiency in service on the part of the opposite parties and directing the parties to bear their own costs. Aggrieved by the order as above, the complainants resorted to the present action by engaging a Counsel of their choice namely learned Counsel M/s. S. Gopalakrishnan and D. Sivakumar.

On service of process, the opposite parties entered appearance through a learned Counsel of their choice namely M/s. A.S. Chandrasekaran, T.M. Pappiah and G. Manishankar.

WE heard the arguments of learned Counsel M/s. S. Gopalakrishnan, appearing for the appellants/complainants and learned Counsel M/s. G. Manishankar, appearing for the respondents/opposite parties. The only one point that arises for consideration is as to whether the order of the Forum below in dismissing the complaint, on the facts and in the circumstances of the case, is sustainable in law.

EVEN at the outset, we may point out that either an act or omission to act on the facts and in the circumstances of each case at certain times tantamounts to deficiency in service. In the case on hand, we are of the view that the deficiency in service on the part of the opposite parties resulted in as a consequence of omission to act in time on their part. This shows the matter had not been duly taken into account by the Forum below and that perhaps was the reason for it to have rendered an erroneous order now impugned in the present action by way of dismissal of the complaint. This sort of an omission to act on the part of the opposite parties may be highlighted or elaborated by referring to the factual matrix of the case. There is no pale of controversy that the 1st complainant Master Shahul Hameed, a minor, aged 12 to 13 years was suffering from fever and the family doctor of the said Master Shahul Hameed, suspected leptospira and consequently he was referred to the Apollo Hospital for the conduct of certain tests before ever treatment is given for such a dreadful disease. There is no denial of the fact that the 1st complainant paid the necessary and requisite charges to the 1st opposite party hospital for the conduct of the various tests to find out as to whether he was suffering from leptospirosis. Yet another fact about which there is no dispute is that he approached the 1st opposite party hospital for the performance of such tests at 5.30 p.m. on 1.11.1996. Learned Counsel M/s. G. Manishankar, representing the respondents/opposite parties with all vehemence and force would contend that the tests namely Serology for leptospira, Blood for dark ground Illumination of leptospira are to be done only by the Microbiologists and Senior Technicians and thereafter they have to give their opinion on these special tests conducted. He would further submit that the Microbiology Department of the 1st opposite party hospital does not work after 5 p.m. and that only in cases where an emergency arises, the Microbiologist on emergency duty will be called in and since the 1st complainant Master Shahul Hameed came for a routine examination the necessary and requisite tests on him were unable to be conducted on that day itself. He would further state that the blood sample taken has to be tested within 2 hours of the taking of the sample and that perhaps the reason the sample of blood was required to be given the next day when the 2nd complainant came along with her son the 1st complainant for receiving the results. The said learned Counsel would also point out that this aspect of the matter had been categorically revealed in the notice dated 11.12.1996 marked as Ex. A6 and the pity is he would say that the appellants/complainants did not deny this aspect of the matter by either issuance of a rejoinder or any denial having been made to such aspect of the matter in the complaint filed before the Forum below. Such being the case, he would say that it cannot be stated that there was any deficiency in service on the part of the opposite parties in not conducting the necessary and requisite tests on the day of giving of samples by the 1st complainant. No doubt true it is that the appellants/complainants did not issue a rejoinder denying such aspect of the matter as stated under Ex. A6 reply notice issued by the opposite parties nor any denial of such aspect of the matter having been made by the complainants by way of specific averments in the complaint filed by them. The fact that the appellants/complainants did not deny such aspect of the matter can by no stretch of imagination be construed to mean on the facts and in the circumstances of the case that what is stated by the opposite parties in their notice under Ex. A6 relatable to explanation offered therein as to the non-conduct of the tests on the day of the giving of sample is reflecting the reality of the situation. The explanation as afforded by the opposite parties in the notice under Ex. A6 would get exploded if one takes into account the factum of the laboratory attached to the 1st opposite party Apollo Hospital is a 24 hrs. laboratory. By expression "24 hours" laboratory, it is meant the laboratory works all through the 24 hours of the day without any stop for a moment. It is because the laboratory attached to the 1st opposite party Apollo Hospital is a 24 hours laboratory, patients like the complainants are referred to such laboratory either by the doctors or the patients themselves knock at the doors of the laboratories of the said hospital for tests to be conducted and reports to be received in respect of the tests conducted without any loss of time for effective treatment of the malady or disease from which they suffer otherwise there is no meaning in calling the laboratory attached to the hospital as a 24 hours laboratory. The laboratory attached to the hospital is a 24 hours laboratory is getting mentioned specifically in the very notice issued by the said hospital under Ex. A6. Such being the case, the explanation trotted out in the very same notice under Ex. A6 stating that the Microbiology Department of the said hospital ceases to work after 5 p.m. cannot at all be expected to commend acceptance at our hands and such sort of an explanation had been offered in order to get themselves wriggle out of the legal consequences for not conducting the necessary and requisite tests on the day of the taking of the sample. This sort of non-conducting of the tests on the day of the taking of the samples in such circumstances, we are of the view is an indictable omission on the part of the 1st opposite party hospital which will definitely tantamount to deficiency in service on their part. One other explanation offered in the said notice under Ex. A6 that the case of the 1st complainant Master Shahul Hameed, a minor, aged 12 or 13 years is not an emergency case and is a routine one is beyond one''s comprehension when especially the malady or disease leptospirosis is a dreadful disease. Daunted by curiosity in order to understand the nature of such disease, we sent for the books, "Harrison''s Principles of Internal Medicine" and "Nelson''s Textbook of Pediatrics". We read with curiosity, Chapter 130 Leptospirosis in Harrison''s Principles of Internal Medicine, Twelfth Edition, Volume I and Chapter 201.2 relatable to Leptospirosis in the Nelson''s Textbook of Pediatrics in Book 1 (Parts I - XVII). By a cursory glance or glimpse of those Chapters in those two books, we were able to understand that Leptospriosis is a dreadful disease. The disease affects the brain, heart, liver, kidney, etc., and the mortality rate of such a disease if not attended to properly at the earliest stage, varies from 2 to 48% depending upon the co-existence of jaundice with such a disease. In the case of such a disease without the patients suffering from jaundice important clinical findings reveal from 3 to 7 days are fever, Myalgia, Headache, Abdominal pain, Vomiting, Conjunctival suffusion. During such period, Leptospriosis is found present in blood and CSF. That is the first stage. The second stage is beyond the period of 7 days upto a period of one month and during such period, important clinical findings are Meningitis, Uveitis, Rash and Fever and at this stage, leptospriosis is present in urine.

IN case of such a disease accompanied with jaundice, clinical symptoms are Haemorrhage, Renal failure and Myocarditis and during this stage, leptospriosis is found present in Blood, CSF and Urine.

THE prognosis is dependent upon both the virulence of the organism and the general condition of the patient. THE mortality rate in reported cases in the United States has varied annually between 2.5 and 16.4 percent, averaging 7.1 percent. Age is the most significant factor related to increased mortality. In a representative series, the mortality rate rose from 10 percent in men less than 50 years of age to 56 percent in those over 51 years of age. THE virulence of the infecting leptospiras correlates best with the development of jaundice. In anicteric patients, mortality is extremely rare, but with the development of jaundice, the mortality rate in various series has ranged from 15 to 48 percent. It does appear that initiation of treatment before the 7th day will probably shorten the clinical course and decrease the severity of the infection. On this basis, treatment with penicillin or tetracycline (in children over 12 yr.) should be instituted as soon as the diagnosis is suspected. Parenteral penicillin G, 6-8 million U/m/24 hr., in 6 divided doses for 7 days is recommended. In patients allergic to penicillin, tetracycline (10-20 mg/kg/24 hr.) should be administered orally or intravenously in 4 divided doses for 7 days.

From what has been stated above, it is thus crystal clear that the malady or disease leptospirosis is such a dreadful disease and the onset of such a disease has to be diagnosed at the earliest point of time by the conduct of tests and effected treatment must have to be given or otherwise the plausibility of the patient suffering from such disease dying cannot be ruled out of consideration.

THE tests on the 1st complainant Master Shahul Hameed were required to be performed by the 1st opposite party Apollo Hospital was to ascertain whether he was suffering from such disease so that effective treatment is resorted to be given if there is any such onset of disease on him. In such a situation, for the 1st opposite party Apollo Hospital to take up a stand as has been taken under Notice Ex. A6 that the examination sought to be made on the 1st complainant Master Shahul Hameed is a routine one is beyond one''s comprehension. It is not as if the 1st opposite party Apollo Hospital had taken up a stand without knowing that the stand as taken by them is wrong. We honestly feel that such a stand had been taken under Ex. A6 notice with a view to escape from the legal consequences to be ensued against them for indictable omission on their part in not performing the tests without any loss of time on the date of taking of the samples. All these aspects of the matter as we have referred to above had not been duly taking into account by the Forum below in the process of arriving at a conclusion relatable to the question there was any deficiency in service on the part of the opposite parties. If those aspects of the matter had been taken into consideration by the Forum below, cocksure it is, we rather feel, it would not have rendered such an erroneous finding that there was no deficiency in service on the part of the opposite parties and consequently dismissed the complaint.

FORTUNATELY, as quirk of fate would have it, the 1st complainant Master Shahul Hameed who got admitted into the Child Trust Hospital on 8.11.1996, got discharged from the said hospital on 10.11.1996. During his stay there, certain tests were conducted and the tests conducted on him do not at all indicate that he was suffering from leptospirosis. As such it cannot at all be stated that the 1st complainant Master Shahul Hameed, suffered any sort of an injury as a consequence of the dreadful disease, leptospirosis. The fact that he did not suffer any injury as such does not mean that the opposite parties cannot at all be mulcted with liability for payment of compensation to the complainants at least for the mental agony, torture and anguish suffered as a consequence of non-performance of the tests on the 1st complainant Master Shahul Hameed for the determination of the factor as to whether he was suffering from the dreadful disease of leptospirosis in time. The mental agony, anguish and torture suffered by the 2nd complainant mother during the said period required to be adequately compensated on the part of the opposite parties for the indictable omission on their part in conducting the necessary and requisite tests on the day of taking of the necessary and requisite samples. We are, on the facts and in the circumstances of the case, of the view that it won''t be besides justice to direct the opposite parties to pay compensation quantified in a sum of Rs. 2,000/- to the complainants for the mental agony, anguish and torture suffered by them and we accordingly do so. In fine, the appeal is allowed to the extent as indicated above and it shall stand dismissed in other respects. We make no order as to costs on the facts and in the circumstances of the case. We however make it crystal clear that the opposite parties are directed to comply with the order of ours within a period of one month from the date of receipt of our order or otherwise the appellants/complainants would be at liberty to invoke the provisions of Section 27 of the Consumer Protection Act, 1986 . Appeal allowed.