National Consumer Disputes Redressal
Bushan Chimanlal Jain vs Dr. Chandru K.M. & Anr. on 27 September, 2019
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 2614 OF 2017 1. BUSHAN CHIMANLAL JAIN BALAJI TOWERS CHS LTD."B" WING, FLAT NO.B-202, 2ND FLOOR, PLOT NO.8, SECTOR -22, OPP CHURCH, NERUL (W) NAVI MUMBAI-400706 2. SHRI SANDEEP BHUSHAN JAIN BALAJI TOWERS CHS LTD., "B" WING FLAT NO.B-202, 2ND FLOOR, PLOT NO.8, SECTOR -22, OPP CHURCH, NERUL (W) NAVI MUMBAI-400706 ...........Complainant(s) Versus 1. DR. CHANDRU K.M. & ANR. A-1/1, SECTOR-15, VASHI NAVI MUMBAI-400703 2. SMT. DOCTOR CHANDRU K M MBBS (BOM) A-1/1, SECTOR -15, VASHI NAVI MUMBAI-400703 ...........Opp.Party(s)
BEFORE: HON'BLE MR. DR. S.M. KANTIKAR,PRESIDING MEMBER
For the Complainant : For the Opp.Party :
Dated : 27 Sep 2019 ORDER
For the Complainant : In person
For the Opposite Parties : Mr. Arun D. Mishra, Advocate
Pronounced on : 27 September, 2019
ORDER
COMPLAINT:
1. Smt. Veena Bushan Jain wife of Bushan Chimanlal Jain, aged about 68 years (hereinafter referred as a 'patient'), was a high profile business woman having sound health. During 24.10.2016 to 29.01.2017, she with her husband visited several time for their family doctor, Dr. Chandru K. M.( OP-1) for the complaints of minor health ailments. On 24.01.2017, she had fever and whole body pain. She visited OP No. 1 with her husband at about 2.00 p.m. According to complainant no.1, she was repeatedly complaining unbearable pain in the upper portion of her body, i. e. head to neck, also severe pain in her jaw and ear. The ear pain was so severe that she felt to cut her ear. It was alleged that, the OP-1 doctor casually examined the patient by putting stethoscope and gave treatment for simple throat infection and fever. He gave unnamed injection, few medicines from his clinic and prescribed some and called the patient on next day for lust and greed of earning money. The OP-1 also charged exorbitantly. The doctor prescribed inhalation of some camphor, menthol contained medicines i.e. Cap Karvol and Otravin nasal drop. He casually advised to take fruits like kiwi, khazoor and apple. Thus, OP-1 doctor ignored the serious condition i.e. the heart related problem of the patient. The doctor never asked the complainant no.1 (husband of the patient) to get done any tests for proper diagnosis though patient was complaining discomfort. According to the complainants, 'jaw' and 'ear' pain was due to blood clot which blocked near the ear and jaw and was creating trouble. It was further alleged that after taking Karvol inhaler, the blood clot might have moved very fast during 4-5 days from the ear. Further, the blood clot passed through brain but finally struck in the heart of the patient with so much force, which blasted the artery to the extent that there was a big patch of blood found in the anterior wall of the heart, which resulted in the immediate death of the patient by acute myocardial infarction (Acute MI). The patient was taken to Terna Hospital on 29.01.2017, but the doctors there could not save her.
2. Complainant no. 1 further alleged that one senior heart specialist perused the Post-Mortem (PM) report of the deceased patient and affirmed about patient's alarming heart related signals. Thus OP-1 doctor had wasted 4-5 days' valuable time to treat the patient. During period of 4 months i.e. 24.10.2016 to 29.01.2017, the OP-1 doctor could have advised patient for whole body check-up, the patient could have survived and alive today. He further alleged that he visited to the OP-1 - doctor's clinic to show the patient's PM report, but the greedy OP-1 doctor charged him Rs. 100/- as consultation fee without showing any sympathy towards his dead patient.
3. Being aggrieved by the alleged negligent and deficient act of the OPs No. 1 and 2, a consumer complaint under section 21(a)(i) of the Consumer Protection Act, 1986 (for short ' the Act,1986) has been filed by the complainants against the opposite parties praying compensation of Rs. 1,25,00,000/- along with cost of Rs. 25,00,000/- towards harassment and mental agony etc. The complainant No. 2 Mr. Sandeep Jain, the son of the deceased patient, gave power of attorney to his father i.e. complainant no.1 to represent him in this matter.
Defence
4. The opposite parties no. 1 and 2 have jointly filed their written version and denied the entire allegations. It was submitted that both the opposite parties are reputed general medical practitioners having medical qualifications and experience of more than 20 years. The complainant No.1 intentionally suppressed the material facts. It was submitted that on 24.01.2017 the complainant took his wife (patient) at opposite parties' clinic with the complaint of headache, block nose, ear pain and sore throat. She did not complain of any chest pain. The opposite party No. 1 examined the patient, checked her blood pressure, it was normal 120/80 mm of Hg. The heart and chest examination was normal. There was no chest pain or breathlessness. The throat was infected. Based on the signs and symptoms of patient, the OP No. 1 doctor administered injection Gentamycin and prescribed medicines Paracetamol, Gellucil, Karvol, Tablet Zifi 200 and Otrivin nasal drops. The patient was much better on the next two days, therefore same medicines were continued for further two days. Patient was also advised to take cervical x-ray, but the patient did not turn up thereafter.
5. On 30.01.2017, the complainant No. 1 informed the opposite parties that the patient expired on 29.01.2017. The opposite parties further submitted that the complainants used filthy language in the legal notice dated 27.06.2017 and made many defamatory allegations. As per the PM report, the cause of death was natural and it was not related with the treatment given by the opposite parties. The OP No. 1 treated the patient reasonably and as per the standard norms. According to PM report, the patient died because of heart attack as a natural death. The complainants have filed this complaint to extort money from the opposite parties.
Arguments:
6. Heard the arguments from both sides. The complainant no.1 argued the matter. Both the sides made their submissions as stated in their respective affidavits of evidence. The learned counsel for OPs relied upon few decisions of Hon'ble Supreme Court and this commission viz-
1. Kusum Sharma & Ors. Vs. Batra Hospital and Medical Research (2010) 3 SCC 480
2. Jacob Mathew vs. State of Punjab III (2005) CPJ 9 (SC)
3. Martin D'soua vs. Mohd Ishfaq I (2009) CPJ 32 (SC)
4. C. P. Sreekumar vs. S. Ramanujan II (2009) CPJ 48 (SC)
5. Vinod Jain vs. Santokba Durlabaji Hospital II (2019) CPJ 99 (SC)
6. Girishchandra V. Bhatt & Ors. Vs. Sterling Hospital III (2018) CPJ 178 (NC) Findings and Reasoning:
7. Perused the material on record, the medical prescriptions, the medical record of Terna Hospital and the PM report.
8. The OP No. 1 Dr.Chandru K.M. is a MBBS doctor. As stated in the reply to complainant's legal notice that he was a family physician of the complainant's family who were attending his clinic for the past 20 years without any complaints.
9. The complainant No. 1 with his wife (deceased- patient) approached the opposite parties for the complaints of fever, headache (frontal bone), sore throat. Accordingly, based on the patients symptoms and clinical findings, OP-1 Dr.Chandru K.M. advised the treatment. I have perused the prescriptions on record from 24 - 28/1/2017, nothing was mentioned that the patient was having symptoms of chest pain or breathlessness at any point of time. Patient's blood pressure was 120/80 mm of Hg, thus, within normal limit. Therefore, for infected throat OP No. 1 administered injection Gentamycin and prescribed antibiotic Zifi 200, for fever Tab. Paracetamol (Calpol), the antacid- Tab Gelusil, the decongestant Cap Karvol inhalation and the nasal drops Otrivin. Thus in my view, there was neither deficiency nor negligence of OP-1 doctor. It was reasonable and accepted standard of practice from the general fractioned.
10. Perused the PM report ( ex. F-37) issued by NMMC General Hospital - Post Mortem Centre, Vashi. In my view, careful attention to paras 5, 17 and 20 of PM report has more relevance.
In para 5, it is stated that, "history of fall in bathroom on 29.01.2017 at about 07.30pm. Admitted in Govt. hospital and she died at 20.30 pm".
in para 17, it is stated that, "DC shock given over chest - whitish pinkish.
IV marks on Rt side of the neck, reddish."
In para 20, the heart revealed:
"Pericardial cavity contains 100cc blood clot. A haemorrhagic patch of infarction seen over anterior wall 3x3cm.Greyish whitish decalcified plaques of atherosclerosis seen at the base of great vessels. Ostia of both the coronaries narrowed significantly. Thrombi seen in Circumflex artery."
As per post mortem report, the opinion -probable cause of death "acute myocardial infarction".
11. It is pertinent to note that, according to the PM report The patient had a fall in the house on 29.01.2017 at about 7.30pm in the night. Admitted in the hospital and declared dead after resuscitation measures at 22.30 hours. However, the complainant no.1 has intentionally concealed this fact in his complaint.
The patient suffered cardiac arrest due to acute MI. at Terna Hospital the doctors gave DC shock and performed cardiac resuscitation butpatient could not survive.
As per PM report it was the case of acute myocardial infarction.
In my view the complainant no.1 has tried intelligently to build a story and made vague and absurd allegations on the family physician. Complainant no.1. hasframed his complaint in such manner that, the ear and jaw pain was related to blood clot near ear. Due OP-1 doctor advised forinhalation of Karvol decongestant ,the blood clot travelled in 4-5 days through brain and stuck in the heart - burst of artery and the big patch of blood was found on the anterior wall of heart...!!!
12. It is more relevant to peruse the allegations of the complainants, which are reproduced as below.
Another important cause of concern on part by Respondents Doctor is a reason of complainant deceased patient Late Smt. Veena Bushan Jain "that when she was complaining of the severe Ear pain upto the extent that she will cut the Ear, it infact was the "Blood Clot stuck-up some where near the Ear troubling her deeply "The Respondent Doctor for greed of money emphazizingly worked on Cynus gave his own clinic few tablets & injection for - (C-Sinusitis) or bad throat on 24/01/2017 & repeating same on 25/01/2017 by prescribing some inhailing Camphor & Menthol contained medicines e.g. Cap Karvol, Otravin Nasol Drops; which worked in wrong directions that with their inhalement the "Blood Clot" moved very fast from the spot near the Ear for next 4-5 days (i.e. w.e.f. 24/01/2017 to 29/01/2017), being ultimately a "Blood Clot" though it passed through brain but finally stuck in the "Heart of the deceased patient so forcefully that it blasted the artiery to the extent that there was a big patch of blood found in the anterior wall part of the heart; & this resulted in the immediate death of the complainant deceased patient on the spot under Heart Attack category of "Accute Myocrdinal Infraction". The Respondents Doctor whereas was working on his ordinary treatments of Cynus (C-Siniusitis) or bad throat etc giving medicines not required as per patient's grief & health complain, just to sell own dispensary medicines for greed of immoral money & never preffered or appreciated by going into the depth of the complaint & grief of suffering patient his/her vows & having lack of skills & knowledge, never refered his deceased patient to urgently meet Heart-Specialist & the deceased patient be taken to the famous Appollo or Fortis Hospital for complete body checkup / in particulars "Heart Check Up", which the surviving complainants have gained knowledge & learnt more of these modalities than of the Respondents Doctor upon meeting such tragedy.
(extracts from Part 1 (pages 14-15) of the paper book)
13. Similarly, complainant no. 1 in his synopsis of arguments stated as below.
Rather negatively the negligent doctor used his own knowledge by treating his late patient for nose, throat complications additionally advising & pumping wrongly the late heart patient with "Big Blood Clot" with fast inhaling medicines like "Karvol for Steam Inhale" & Otiriv Nasal Drops" - each 2-3 times a day as on records of the case complaint. These wrong administrations as fatal helped "Big Blood Clot" to rotate very fast for 3-4 days & though it passed through Ear & Brain but finally blasted the Artirery of the late patient causing instant death &Negligent doctor thus is responsible for death to a valued lady. The negligent doctor with variation in treatment dates misinterpretations of medicines, test reports dates & X-Ray tests wrongly produced clearly reflects his wrong doing in the case with utter negligence & moreover not maintaining patient records & calling the wrongly signed prescriptions given to the patient as his records is away from his working with due diligence. As important the doctor has to sign originally in complete as per his registered medical council signatures, but avoided in this case.
(extracts from part IV (pages 2-3) of the paper book)
14. Considering the entirety of the case, the complainants have made plenty of bald allegations against the general family physician (OP-1). The prescriptions issued by OP-1 clearly mention about the symptoms of patient who suffered sore throat, fever and body ache on 24.01.2017. The patient had neither breathlessness nor chest pain problem. Thus, OP-1 after examination treated the patient accordingly. As per the medical record of Terna Hospital and the PM report, admittedly the patient died due to cardiac arrest - acute myocardial infarction. Complainant No.1 had made vague attempts to prepare complaint based on findings in the PM report. Thus, the complainant's theory of "rotation of Big Blood Clot" (supra- paras 12 and 13) is just an imagination and not acceptable medically.
15. The complainants alleged that the OP-1 has not referred the patient to Cardiologist or higher centre. It is clear from the prescription that from 24.01.2017 to 28.1.2017 the patient showed symptoms of fever, body pain, throat infection. OP No. 1 treated the patient with proper medicines. There were no symptoms suggestive of cardiac aliments, thus, OP No. 1 did not refer the patient. Thus, it was not negligence. Moreover, the patient and her husband failed in their prudence though they were educated and doing pharma business and supposed to have adequate medical knowledge.
16. On bare reading of the complaint, it transpires that the complainant used some unwarranted and unpalatable words like "lust", "greed", "immoral" against the OP-1. This is viewed unfavourably. It is quite surprising to note that the complainant no.1 was aggrieved because OP-1 charged Rs.100/- as a fee to explain PM report. I do not find any wrong with the OP-1, it was his professional fee and he has every right to demand it.
17. Hon'ble Supreme Court in various judgments has discussed about what constitutes medical negligence.
In the case of Kusum Sharma Vs Batra Hospital (2010) 3 SCC 480, observed in paragraph 72 and 73 as
72. The degree of skill and care required by a medical practitioner is so stated in Halsbury's Laws of England (Fourth Edition, Vol.30, Para 35): 36 "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, 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 existed among medical men. Deviation from normal practice is not necessarily evidence of negligence. To establish liability on that basis it must be shown (1) that there is a usual and normal practice; (2) that the defendant has not adopted it; and (3) that the course in fact adopted is one no professional man of ordinary skill would have taken had he been acting with ordinary care."
73. In Hucks v. Cole & Anr. (1968) 118 New LJ 469, Lord Denning speaking for the court observed as under: "a medical practitioner was not to be held liable simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference of another. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field."
In so far as the duties which a doctor owes to his patient are concerned, in Dr. Laxman Balkrishna Joshi V Dr. Trimbak Bapu Godbole AIR 1969 SC 128 the Hon'ble Supreme Court, dealing with a case under the Fatal Accidents Act, 1855, observed that a person (doctor) who holds himself out ready to give medical advice and treatment impliedly undertakes that: (i) he is possessed of skill and knowledge for that purpose; (ii) when consulted by a person, such a person owes a duty of care in deciding whether to undertake the case; (iii) a duty of care in deciding what treatment to give; and (iv) a duty of care in the administration of that treatment. A breach of any of these duties would give a right to the patient of action for negligence against the doctor.
Thus, relying upon the judgments (supra), in my view there was neither deficiency nor negligence of the treating doctor-OP No. 1. He is qualified as MBBS, he examined the patient, recorded BP and treatment was given. It was a reasonable and as per standard medical practice.
Conclusion:
18. On the basis of forgoing discussion, I am of view that, this complainant filed by the complainant is a clear case to just harass the doctor who was a family doctor. It should be borne in mind that, if a doctor professes that he is a specialist, possessing some special skills to deal with a particular ailment or condition, he is expected to exercise a higher degree of care than a general practitioner, whose conduct is to be judged on a different parameter.
Meaning thereby, a specialists duty of care has to be equivalent or at par that of a similar specialist possessing the requisite skill in that particular branch of medicine. Thus in simple words the conduct of a general practitioner is to be judged on the touchstone of the conduct of a general practitioner. Thus, a specialist has to exercise a higher degree of care than a generalist. The expectation of the patient from the specialist is better care and higher degree of treatment as compared to other specialists, but it will be still greater degree of care expected by a super specialist. Thus, in the instant case I do not find OP-1 Dr.Chandru a general practitioner was negligent in his duty.
19. For the past one decade filing of consumer complaints against doctors under the Consumer Protection Act,1986 are on the rise and in many cases these being frivolous. In the Kusum Sharma's case Hon'ble bench of Justices Dalveer Bahndari and H.S.Bedi bench observed as
80. The professional should be held liable for his act or omission, if negligent, is to make life safer and to eliminate the possibility of recurrence of negligence in future. But, at the same time courts have to be extremely careful to ensure that unnecessarily professionals are not harassed and they will not be able to carry out their professional duties without fear.
81. It is a matter of common knowledge that after happening of some unfortunate event, there is a marked tendency to look for a human factor to blame for an untoward event, a tendency which is closely linked with the desire to punish. Things have gone wrong and, therefore, somebody must be found to answer for it. A professional deserves total protection.
Hon'ble bench also said that "It would not be conducive to the efficiency of the medical profession if a doctor is to administer medicine with a halter around his neck." Similarly in paragraph 61 it was observed that
61. In Roe and Woolley (supra) Lord Denning said:
"We should be doing a dis-service to the community at large if we were to impose liability on Hospitals and Doctors for everything that happens to go wrong".
20. On the basis of forgoing discussion and relying upon para 19, it crystallises that the OP-1 Dr.Chandru K.M. is a general practitioner; had performed his duty with a reasonable degree of skill and knowledge and exercised a reasonable degree of care. The complainants have filed the complaint without any medical basis, but it's a frivolous and based on vague assumptions. Such complaint discourages the doctor to provide his services to the society without fear. It clearly signifies the ill intention and greed of the complainants to harass the doctor unnecessarily.
21. It is also to be seen here that the time and resources of this Commission have been wasted in such manner and for such evident purpose. It is thus appropriate and albeit necessary to give stern advise of caution to such complainants through imposition of exemplary cost to desist from misusing the statutory processes provided for a consumer for better protection of his interests under the Consumer Protection Act, 1986. This Act is not meant to be a tool to obtain wrong gains from or to create 'nuisance value' to the medical professionals at large in the country. However, keeping in mind the provision of sec.26 of the Act,1986, I confine myself to impose cost of Rs.10,000/- only.
22. Based on the entirety the complainants failed to establish medical negligence against the opposite parties- doctors. The complaint is dismissed with the cost of Rs.10,000/- to be deposited by complainants in the legal aid account of this commission within 4 weeks from the date of the receipt of copy of this order Registry shall ensure to despatch free copies of this order to both the sides within a week.
...................... DR. S.M. KANTIKAR PRESIDING MEMBER