Sailesh Munjal & Anr.                                   ---  Complainants
                  Vs.
All India Institute of Medical Sciences & Ors. --- Opposite Parties

BEFORE: Hon'ble Mr. Justice M.B.Shah, President, Mrs. Rajyalakshmi Rao, Member, Mr. B.K.Taimni, Member, Hon'ble Mr. Justice K.S.Gupta, Member, Hon'ble Mr. Justice S.N.Kapoor, Member.

M.B.SHAH, J. PRESIDENT:

     The questions that require determination in this Original Petition are:

(a) Whether a complaint against the All India Institute of Medical Sciences (AIIMS) and the Doctor who carried out investigation is maintainable under the provisions of the Consumer Protection Act, 1986? 

(b) Whether there was any deficiency in service by the concerned Doctor in extracting DNA from chorionic villus samples and sending the DNA to Dr.John M.Old, Consultant of National Centre for Haemoglobinopathies Institute of Molecular Medicine, Oxford, U.K for confirming as to whether the baby in the womb is suffering from Thalassaemia Major?

A. Bare Facts: The say of the Complainants is that as one of their sons was suffering from Thalassaemia Major, at the time of second pregnancy they approached the All India Institute of Medical Sciences (AIIMS) on 28.11.89 for consultation regarding prenatal diagnosis of Thalassaemia Major and check up as to whether the baby in the womb would be suffering from the same disease. The Opposite Party No.2, Dr. Ishwar C. Verma, on examination, advised for Foetus Test for Thalassaemia Major, and gave her tubes for Chorionic Villus Sample (C.V.S.) and directed her to undergo Chorionic villus biopsy (C.V.B.) from Dr.(Mrs.) J.S.Khurana X-Ray Clinic and Ultrasound Laboratory. A sum of Rs.9,500/- was also charged by the AIIMS from the Complainants for pre-natal diagnosis for Thalassaemia Major. The Opposite Parties No.1 and 2 sent the Chorionic Villus sample to Dr.John M. Old, Consultant of National Centre for Haemoglobinopathies Institute of Molecular Medicine, Oxford, U.K. Dr.John M. Old, after carrying out the required tests, vide his letter dated 12.12.89, informed Opposite Party No.2, Dr. Ishwar C.Verma that the C.V.S. diagnosis for Complainant No.2, i.e. the wife, is Beta Thalassaemia Trait and further informed that the report and invoice would follow. Foetal Diagnosis report dated 19.12.1989 reporting the C.V.S. DNA sample as Beta Thalassaemia Trait was handed over to the Complainants by the Opposite Party No.2, Dr. Ishwar C. Verma. On the basis of this report, Dr. Verma advised the Complainant No. 2 to go ahead with the pregnancy. The Complainant No. 2 delivered a male on 25.6.90. When the haemoglobin level of the child went low, they approached Dr.Verma who once again collected the blood samples of the members of the family and sent them to U.K. for tests. Dr. John M. Old informed that the child has Homozygous Beta Thalassemai (Thalassaemia Major). It is further submitted that the Opposite Party No.2 had admitted, inter alia, that some error had occurred in the earlier report dated 19.12.89 because of contamination of DNA from the mother's tissue. 

     The main contentions of the Complainants are that (i) had the Opposite Party No.2 been careful enough and separated the contaminated mother's tissue, and (ii) had Dr.John M. Old been vigilant before analysing the sample - the erroneous foetus diagnosis report could have been averted, and consequently the Complainants would not have gone ahead with the pregnancy. This lapse on the part of the Opposite Parties has resulted in onerous duties to the Complainants (parents) costing lakhs of rupees for the life time of the child. It is contended that the services rendered by the Opposite Parties are faulty, imperfect and inadequate in quality, hence compensation for a sum of Rs.1,95,00,000/- under different heads is claimed.

     Re: Whether complaint under the Consumer Protection Act, 1986 (hereinafter referred to as 'the Act') is maintainable against the AIIMS?
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The reason being - it is not covered by exclusion clause, namely, 'service does not include the rendering of service free of cost'. Hence, we reject the first preliminary contention.

Re: Deficiency in service
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Real test for determining deficiency in service:

     Well laid down tests for determining deficiency in service are - whether there is failure to act in accordance with standard of a reasonable competent medical practitioner?

     Whether there was exercise of reasonable degree of care? 

     The degree of standard or reasonable care varies in each case depending upon expertise of medical man and the circumstances of each case. On this aspect, it would be worthwhile to refer to the enunciation from Halsbury's Laws of England. 

     "With regard to degree of skill and care required by the doctors, it has been stated as under in (pr.36, p.36, Vol.30, Halsbury's Laws of England, 4th Edn.)

     "The practitioner must bring to his task a reasonable degree of skill and knowledge, and must exercise a reasonable degree of care. Failure to use due skill in diagnosis with the result that wrong treatment is given is negligence. 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, and a person is not liable in negligence because someone else of greater skill and knowledge would have prescribed different treatment or operated in a different way; nor is he guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art, even though a body of adverse opinion also exists among medical men; nor is a practitioner necessarily negligent if he has acted in accordance with one responsible body of medical opinion in preference to another in relation to the diagnosis and treatment of a certain condition, provided that the practice of that body of medical opinion is reasonable."

     The Apex Court aptly stated the said principles further in Dr. Laxman Balakrishna Joshi Vs. Dr. Trimbak Bapu Godbole, AIR 1969 SC 128, which reads as under:

     "The practitioner must bring to his task a 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: (cf. Halsbury's Laws of England, 3rd ed. Vol. 26 p.17). The doctor no doubt has discretion in choosing treatment which he proposes to give to the patient and such discretion is relatively ampler in cases of emergency."
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FINDINGS:

     Applying the test laid down in the aforesaid decisions, can it be said that OP No.2 had not exercised the standard of ordinary skilled man exercising and professing to have that special skill? 

     In the Foetal Diagnosis Report, submitted by the National Haemoglobinopathy Reference Service, U.K., it has been specifically stated as under:

     "Currently available data indicates that the chance of error from DNA combination in diagnoses based on linkage analysis is approximately 0.3% and that the technical error rate for all types of DNA analysis is approximately 0.5%. It is most important that all clinicians involved in the care of families requesting prenatal diagnosis, and the families themselves are aware of these data before decisions about termination of pregnancy are taken".

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     From the evidence discussed above, it would be difficult to arrive at a conclusion that even though error or imperfection has crept in, in bifurcating foetal tissues from the mother's tissues, it amounts to negligence on the part of OP No.2. 

What relief can be given :-

     The question is how to do justice, when we are not in a position to hold that there was negligence on the part of the OP No.2 in discharge of his duties, but at the same time, it is apparent that error has crept in, in bifurcating the mother's tissues from that of the foetal tissues; or the error might have crept in at the time of carrying out the test by Dr. John M. Old. That error, fault or imperfection has resulted in onerous duties on the parents and their son would require continuous treatment ...............................................

.....in the present case of unexpected situation arising due to imperfection in the test, for doing justice, we direct that the OP No.1 shall give medicines without any charges to the Complainant's son for 'Thalassaemia Major' after getting him periodically examined by the consultant on the subject. For blood transfusion also the same may be given periodically, without any charges.....................

.............With these directions, the Original Petition stands disposed of. There shall be no order as to costs.