June 1, 2016 5:32:02 am
In an order of far-reaching import, the National Consumer Disputes Redressal Commission (NCDRC) has ordered a hospital in Mumbai to pay Rs 12,000 to a patient every month till her death. The woman contracted HIV 20 years ago, after she received a blood transfusion, reportedly without her or her family’s “informed consent”.
The woman received the blood transfusion when she was admitted to Mhaskar Hospital, Kalyan, for delivery. According to the complainant, her newborn son also contracted HIV when she breast-fed him, unaware that she had become HIV-infected during the caesarean section. The infant later died.
The woman was abandoned by her husband after she contracted HIV. Since she has no source of income, the NCDRC has asked the hospital to take care of all her medical and living expenses for the remainder of her life. The hospital has also been told to pay compensation and reimburse the actual expenses incurred by her for hospitalisation during delivery.
In passing the landmark order, the Bench of NCDRC Chairman Justice D K Jain and member M Shreesha also expanded the scope of what constitutes “goods”, holding that blood taken from a registered blood bank falls in the category of goods and that a patient who buys blood from a registered blood bank is a consumer.
What makes the order important is that the compensation has not been awarded for deficiency in medicare or negligence in the procedure performed. Instead, the hospital has been found guilty of not obtaining “valid consent for blood transfusion”.
The commission has said that “perhaps, it is high time when the hon’ble Supreme Court of India may have to take a relook at the concept/ principle of “consent”, “informed consent” or “real consent”, whatever expression one may like to use”.
Incidentally, routine blood tests, including Enzyme-Linked Immunosorbent Assay (ELISA) test for HIV-I and HIV-II antibody, conducted on the patient a few months before she was admitted to hospital for delivery, were all negative. One of the arguments put forth by the complainant was that the hospital did not conduct any tests to check if the blood from the blood bank was contaminated.
The commission, however, ruled that there wasn’t sufficient evidence to return a categorical finding that the four units of blood, supplied to the complainant’s husband, were not tested from an accredited laboratory and that the same were HIV-contaminated.
“We have no hesitation in holding that in the present case, the treating doctor had failed to obtain valid consent from the complainant and the blood transfusion… was an unauthorised act amounting to a tortious act of assault and battery and therefore, deficiency in service on his part,” the bench held.
“…internationally, blood transfusion is considered as a medical invasive procedure, performed on a live body. That being so, undoubtedly the doctor is bound to disclose to the patient the associated benefits, risks and alternatives to blood transfusion, and it is now an accepted medical norm to obtain informed consent of the patient before transfusion…” says the order.
The bench also referred to the law in the United States, where informed consent is a must “for all planned transfusions”.
In 2007, the Maharashtra State Consumer Disputes Redressal Commission had dismissed the woman’s complaint on the ground that there was no negligence on the part of either the hospital where she was operated upon or the blood bank from where her husband got four units of blood.
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