State Consumer Disputes Redressal Commission
Dr.O.Nizam Babu vs K.R.Balachandar & Anr. on 21 February, 2022
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IN THE CIRCUIT BENCH OF THE TAMILNADU STATE CONSUMER DISPUTES
REDRESSAL COMMISSION, MADURAI.
PRESENT: THIRU.N. RAJASEKAR, PRESIDING JUDICIAL MEMBER
F.A.No.391/2012
(F.A.No.88/2012 on the file of State Consumer Disputes Redressal
Commission, Chennai)
(Against the order made in C.C.No.07/2005 dated 15.10.2010 on the file of
the District Forum, Karur.)
MONDAY, THE 21st DAY OF FEBRUARY 2022
Dr.O.Nijam Babu,
Annai clinic,
Karur. Appellant/Opposite Party
-Vs-
1. K.R.Balachandar,
S/o Late Rengabashyam,
No.20, Vanjiyamman Koil Street,
Karur Town, Taluk and District. 1st Respondent/1st Complainant
2. Mohana,
W/o K.R. Balachandar,
No.20, Vanjiyamman Koil Street,
Karur Town, Taluk and District. 2nd Respondent/2nd Complainant
Counsel for Appellant/Opposite Party : Mr.B. Cheran, Advocate.
Counsel for Respondents-1&2/Complainants-1&2 : Mr.V.Balaji, Advocate.
This appeal coming before me for final hearing on 21.10.2021 and on
perusing the material records, this Commission made the following:-
ORDER
THIRU.N. RAJASEKAR, PRESIDING JUDICIAL MEMBER.
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1. This appeal has been filed by the appellant/opposite party under section 15 read with section 17(1) (a) (ii) of the Consumer Protection Act, 1986 against the order of the learned District Forum, Karur made in C.C.No.07/2005, dated 15.10.2010, allowing the complaint.
2. For the sake of convenience and brevity, the parties are referred to here as they stood arrayed in the learned District Consumer Disputes Redresssal Forum, Karur.
3. The opposite party suffering by an order, directing the opposite party to pay Rs.4,50,000/- towards compensation for mental agony, pain and sufferings to the complainants and also to pay a sum of Rs.2000/- cost to the complainants in the hands of the learned District Consumer Disputes Redressal Forum, Karur (hereinafter in short "District Forum") have preferred this appeal before this Commission.
4. The case of the complaint is as follows:- The first complainant is the father and the second complainant is the mother of one Sabareesan. The said Sabareesan died on 07.12.2003. Sabareesan was studying 4th standard at Karur and the female child of the complainants is studying in 10th standard. The first complainant along with his son Sabareesan had programmed to go to Sabarimala on pilgrimage by Padhayatra which was planned for 15 days. The first complainant along with his son had consulted the opposite party on 06.12.2003 at 8.00 P.M. by telling their pilgrimage to Sabarimala and requested to conduct general check up on his son and also requested to prescribe medicines to get extra energy and make him 100 % fit for the padayatra. The said Saberessan did not have any disease or any general weakness at the time of approaching the opposite party for consultation. The opposite party after having diagnosed the said Sabareesan is alright and he 3 gave assurance to provide treatment by giving three bottles of 25 % Detrose 100ml, DNS 500ml along with Fortran and other antibiotics to make Sabareesan 100 % fit for the proposed padhayatra. Bonafidely believing the same, the first complainant allowed the said Sabareesan to take treatment. Immediately, the opposite party has started treatment around 8.15 P.M. and after providing treatment, at 10.00 P.M. the opposite party requested the first complainant to take Sabareesan to the house by saying that he will be alright in the next day morning. But the said Sabareesan did not wake up till 10.00 A.M. on 07.12.2003 which necessitated the complainants to approach the opposite party in person at 10.15 A.M. The opposite party personally visited to complainants' home and administered some injections and medicines to Sabareesan and assured that he would be alright by an hour or so. Even then, Sabareesan did not wake up around 12.00 noon, he was brought to the opposite party's hospital and he was admitted there by providing further treatment. The opposite party informed the complainants at 2.00 P.M. that Sabareesan died. Immediately, the complainants have enquired the opposite party about the wrong which resulted the death of Sabareesan. The opposite party has informed the complainants that he is not having enough knowledge in treating children and something undiagonisible went wrong, which resulted the death of Sabareesan. Having no other go, the complainants had taken the body of the said Sabareesan to home. After two days, the complainants approached Dr. Jayarm kannan of Trichy where the said Sabareesan was born. Dr.Jayam Kannan after perused the entire case history of deceased Sabareesan about the treatment provided by the opposite party to the said Sabareesan along with the prescription given by him, came to the 4 conclusion that the opposite party has given incorrect treatment to Sabareesan which resulted the death of Sabareesan The complainants lodged a complaint before the Superintendent of Police, Karur, to enquire about the incorrect treatment provided by the opposite party to Sabareesan, who referred the matter to the Inspector of Police, Karur Town Police station. The Inspector of Police, Karur has sent all the treatment papers to the Joint Director of Medical and Rural Health Services, Karur to conduct an enquiry. The Superintendent of Government Hospital, Karur has conducted enquiry and after taking in to consideration of the facts and circumstances and after perusing the medical records and case history of Sabareesan, the Superintendent of Government Hospital opined that lack of medical knowledge of the opposite party in paediatric treatment, caused the death of Sabareesan. The lack of medical knowledge and inexperience in paediatric treatment of the opposite party resulted the death of Sabareesan at his tender age. Though the loss of Sabareesan cannot be estimated by terms of money the opposite party is liable to compensate the same by way of damages. It is a clear case of gross medical negligence and deficiency in service. The opposite party cannot escape from the liability for the death of Sabareesan. The loss of Sabareesan resulted mental agony, mental pain to the complainants. The opposite party has failed to follow the terms and conditions laid by Medical Council of India and the Drugs control department. The lack of medical negligence of the opposite party came to the knowledge of the complainants only after consulting the family doctor, Dr. Jeyam Kannan. The lethargic activities of the opposite party upon the common public and unaware people will seriously damage the patients and public. Therefore, the complainants claiming compensation of Rs.5,00,000/- from the 5 opposite party for the gross medical negligence. On 27.01.2005, the complainants have issued a legal notice to the opposite party and the same was received by him on 01.02.2005. But on receipt of the same the opposite party has neither chosen to issue any reply nor pay any compensation. Hence, this complaint is filed against the opposite party directing the opposite party to pay Rs.5,00,000/- towards compensation for mental agony, pain and sufferings caused to the complainant, to direct the opposite party to stop the medical practice by a period of three years or the period fixed by this Forum and to award cost of this complaint to the complainants.
5. Written version filed by the opposite party is as follows:- The complainant is not entitled to initiate any legal proceedings in Civil, Criminal and Consumer Redressal Forum on false allegations against the opposite party. Every allegation found in the complaint are denied as false and incorrect. On 06.12.2003 at 8.00 P.M. a boy by name Sabareesan aged about 8 years was brought to the clinic of the opposite party with complaints of weakness, fatigue and loss of appetite for the past six months. The opposite party thoroughly examined the boy and found him not to be in good and healthy condition. The boy did not able to even sit and stand and he was very much dehydrated. The opposite party diagnosed the condition of Sabareesan as Protein energy malnutrition Type II with severe dehydration. Immediately, the opposite party advised the parents of the said boy to get him admitted in a proper hospital for better and immediate treatment. At the request of the parents, the opposite party treated the boy and the said Sabareesan was given 25 % Dextrose 100ml. DNS 500ml, and Vitamins and antibiotics as a first aid. The boy refused to take medicines orally. Therefore, the opposite party gave sedative in 6 appropriate dosage. The boy's pulse and blood pressure were normal during and after the drip and he was in better condition and he did not develop any complications. The opposite party had done his duty as a doctor with a reasonable degree of skill and knowledge and took sufficient care to treat the boy well. The said Sabareesan was taken home by his parents since the house of Sabareesan was near the opposite party's clinic. The complainants promised that they will admit the boy in a proper hospital immediately, without delay.
On 07.12.2003, at 4.30 P.M. the parents of the boy brought him again to opposite party's clinic and opposite party found that the boy was already died. The opposite party became shocked because it was clearly instructed to the parents to take more care to admit the boy in a proper hospital. The said advise was not carried out by the parents and they were careless. The said Sabareesan was brought dead to the opposite party's clinic. There is no negligence or deficiency in service on the part of the opposite party at any time during the treatment. It is unfair to say otherwise about the clinic services except as excellent. The averments in para-6 that the complainants consulted Dr.Jeyam kannan of Trichy who opined due to the wrong treatment of the opposite party resulted to the death of Sabareesan is not true. The death occurred in the boy's house and not in opposite party's clinic. The opposite party gave only first aid. The averments narrated in para-7 to 10 alleged by the complainants before the Superintendent of Police, Karur and resultant direction to the Inspector of Police and enquiry conducted by the Superintendent of Government Hospital, Karur and the cause of death arrived by the Superintendent of Government Hospital, Karur and the conclusion of inexperience of the opposite party caused death of the said Sabareesan, the gross medical negligence of the opposite party 7 and not following of the terms and conditions of the medical council of India and the drugs control department are all denied as false and incorrect. The complainants are not entitled to any compensation from the opposite party and to initiate any legal proceedings against the opposite party. The complaint lodged against the opposite party is false, purposely to extract money from the opposite party. Therefore, this complainant is liable to be dismissed with costs.
6. The Learned District Forum, after taking into account of the evidences adduced by both parties, had held that the facts itself speaks the merit of the complaint by consideration of the theory of Res-ipso-loquitor. The treatment given by the opposite party doctor to the Sabareesan is not in accordance with the need for the child. Everything, namely diagnosing and administration are on wrong path. Therefore, the services rendered by the opposite party doctor on Sabareesan resulting the cause of death which amounts to deficiency in service on the part of the opposite party and directing the opposite party to pay Rs.4,50,000/- towards compensation for mental agony, pain and sufferings to the complainants and also to pay a sum of Rs.2000/- cost to the complainants.
7. Being aggrieved against that order the opposite party challenging it by filing the appeal stating that the District Forum has failed to appreciate the fact that the patient was treated by the opposite party only as first aid for his illness namely weakness, fatigue and loss of appetite for the past six months. The opposite party correctly diagnosed that the patient had Protein energy malnutrition Type II with severe dehydration. It is pertinent to note here that even the opposite party advised to admit the patient with the proper hospital, the complainant compelled the opposite party to proceed with the treatment. The weight of 62 % and 68.9 % 8 comes under Grade II malnutrition the diagnosis made by the appellant is correct. The diagnosis of PEM and severe dehydration is possible only on the clinical signs and symptoms. It does not require elaborate investigations, the contrary to the advice of the opposite party the complainants have not taken their son to a proper hospital after discharge from the opposite party's Hospital. Instead the complainants were held liable for their negligent the District Forum wrongly held that the opposite party was allegedly negligent in diagnosing treating the patient without skill and knowledge. Medical opinion may differ with regard to the course of action to be taken by a doctor treating a patient, but as long as a doctor acts in a manner which is acceptable to the Medical Profession and the court finds the he has attended on a patient with due care, skill and diligence and if the patient still does not survive or suffers a permanent ailment, it would be to hold the doctor to be guilty of negligence. The Apex court in Achutrao Harribhau Knodwa -Vs- State of Maharashtra. The opposite party at no juncture failed in discharging his medical duties and responsibilities towards the patient. The allegations of medical negligence and deficiency in service levied against the opposite party are baseless and totally devoid of substance and truth.
8. The some of unmarked documents available with the records of District Forum where called for by this commission and marked as Ex.B3 and Ex.B4 in this appeal as additional documents.
9. Points for consideration are:
(1) Whether the lack of Medical knowledge and inexperience in Paediatric treatment of the opposite party had caused the death of complainants' son Sabareesan?9
(2) Whether the order passed by the Learned District Forum, Karur in C.C.No.07/2005 dated 15.10.2010 is sustainable under law or not?
10. Point: On 06.12.2003 at 8.00 P.M. the first complainant counselled the opposite party with his son by telling their pilgrimage plan to Sabarimala and requested to conduct general check up and to prescribe medicines to give extra nourishment to complainants' son. The boy did not have any disease or general weakness while approached opposite party. After diagnosing the boy, the opposite party assured to provide treating. The opposite party has started treatment around 8.15 P.M. and at 10 P.M. The opposite party has requested the complainant and to take the boy to the house and he will be alright in the next day morning.
Complainants' son did not wake up till 10.00 A.M. on that morning which necessitated the complainant to approach the opposite party in person at 10.15 A.M., the opposite party personally visited the complainant home and administered some injection and medicines and assured the boy would be alright by an hour. Even the boy did not wake up and at last around 12.00 Noon the boy was taken to the opposite party's hospital and opposite party admitted him and provide treatment. But at 2.00 P.M. opposite party informed the boy died. The opposite party informed that he is not having enough knowledge in treating the children and informed that something undiagonisible went wrong which resulted the death of the boy.
After perusing the medical reports and treatment provided by opposite party Dr.Jayam Kannan had the view that the opposite party had given incorrect treatment resulted in collapse of the boy. The complainant lodged a complaint before the Superintendent of Police, Karur has referred the matter to the Inspector of police, Karur Town Police Station. The Inspector sent the paper to the Joint Director of 10 Medical and Rural Health Services, Karur to conduct an enquiry. Accordingly the Superintendent, Government Hospital, Karur has conducted enquiry and after taking into consideration of the facts and circumstances and perusing medical reports they have opined that lack of medical knowledge of the opposite party in paediatric treatment cause the death of the boy.
11. Whether the opposite party has done his duty with reasonable degree of skill and knowledge and took enough care to treat the boy?
The opposite party diagnosed the boy was very much dehydrated and the condition as protein energy malnutrition Type II with severe dehydration and advised the complainants to get the boy admitted in proper hospital for better and immediate treatment. At the request of the complainants' the opposite party treated the boy.
The opposite party acquired the Diploma in Maternal and Child Health through IGNO University in the year 2005. It was not recognized by Indian Medical Council at the time of admission of the boy on 06.12.2003. The opposite party has not acquired any Degree or Diploma as Paediatrics. The boy did not have any specific ailments except as diagnosed by opposite party the boy was suffering with Protein energy malnutrition Type II with severe dehydration.
12. Indian Academic of Paediatrict for protein energy malnutrition grade I is mild and grade II is moderate. It does not require hospital management and by giving rich protein food like egg, fish, root vegetables will be sufficient to compensate the loss. The opposite party have prescribed 25%, Dextrose, 5% DNS, I.V.S.-1, S.V.S.-1, Ampicillin, garamycin, Dexa methazone, multivitamin injection, Diazepam. Among them tablet Ambocet and injection Fortwin and Diazepam are not recommended for 11 children below 12 years. Immediate respiratory arrest the size effect for the injection such a dangerous medicine was administered when the boy had no symptoms of chronic pain associated with surgery, the medicine Diazepam will lead to hypoventilation and then lead to cardiac arrest.
13. The opposite party said he gave only the First Aid treatment and blaming the complainants they caused the death of the boy remained inactive after his advice to consult a paediatrician. According to Dr.Elamathi report the boy had serious illness on that day the diagnosis made at the time was correct. IV fluids antibiotics and sedatives used on that day were not contraindicated in children the first aid treatment period was only two hours. Next day the boy was brought dead in the evening. The District Forum is under imposing and mindset that every set back in the treating is always due to medical negligence contrary to the views expressed by Supreme Court on many occasions.
14. The material available in the form of proof affidavit by the opposite party reveals that he diagnosis the condition of the Protein Energy Malnutrition of Sabareesan as Grade II with severe dehydration. The evidence of RW2 along with the evidence of RW1 would stimulately go to show that 70% to 80% is coming under Grade I and not Grade II. The sufferings raised against Sabareesan by the complainant does not find place in the written version. So, this is a case of controversy one and diametrically opposed to each other. There is no uniform and exact duration of illness suffered by the deceased Sabareesan has been tendered as evidence according to the written version. Hence, the evidence of RW1 is nothing but a convenience evidence to make inconvenience thought to the other side. 12
15. The written version did not reveal the visit of the opposite party doctor to the house of the complainant on 07.12.2003 at 10.15 A.M. and administered some injections and medicines. The said contention is completely suppressed in the written version. The evidence deposed by the doctor stating that he gave first Aid to Sabareesan appears as a casual evidence which did not involve any risk in saving the life of the boy. The First Aid normally will not result any serious end or death. The fact of evidence by the doctor reveals that Sabareesan was suffering from sever dehydration. Much importance is not given to this aspect taking in to consideration of both sides argument on that aspect. The severe illness is nothing but the Protein Energy Malnutrition, namely, fatigue and weakness. It is for this illness, the opposite party has prescribed 17 medicines including the injections as if these medicines and injections cure the fatigue, weakness, loss of appetite and dehydration.
16. On 06.12.2003 the boy completed 9 years of age. His date of birth is 09.10.1994. According to the below formula;
Weight in Kg = (age in years x 7 ) - 5/2 = 29 Kg.
Ideal Weight= Real Weight/expected Weight x 100 = 18/29x100 = 62%. Here, no evidence has been let to adopt the formula or the formula is adopted. Therefore, the argument focused on the side of the opposite party is based upon unique technique. So, the arriving of the weight of the deceased Sabareesan by the formula is not acceptable and justifiable. The source to arrive the age of the boy is not placed before the Forum. Here, the fact have not been put forth to arrive the conclusion assumed by the opposite party to arrive the weight of Sabareesan. The evidence of RW1 clears this aspect Grade I is a mild Malnutrition. The evidence further reveals that the mild malnutrition can be managed by dietary management 13 and not by hospital treatment. Therefore, the entire prescription prescribed by the opposite party to the deceased Sabareesan is unwarrantable. Therefore, the evidence of RW1 in the cross and evidence of RW2 does not co-incide with each other in accordance with the complaints made by the complainant to the opposite party doctor. So, the evidence of RW1 or RW2 move on one direction and the complaint of Sabareesan as alleged by the complainants move on another direction. Therefore, there is no interlinking co-incideness between the complaints made by the parents of Sabareesan and the evidence of RW1 and RW2.
17. The tablet Zoxan 250 is an antibiotic. Zoxan is a composition of Ciprofloxacin. The said tablet has been administered for the respiratory infection, ordinary infection, Typhoid, skin and soft tissue. As per Exhibit A1 there is no whisper that Sabareesan was suffering from fever on 06.12.2003. It is admitted by the opposite party doctor that this drug cannot be administered for children below 12 years. The boy was under age of 8 years as per Exhibit A1. Therefore, this drug should not be administered to Sabareesan. But the prescription A1 reveals that this tablet was administered to Sabareesan. So, the first wrong treatment starts from Zoxan on the Sabaressan by the opposite party. The tablet Ambrocet (short form for Ambrocet) is the composition of Cetrizin Hydrochloride and Ambroxol hydrochloride administering of this medicine is a contra indication. There is no whisper about the suffering of abdominal infection by Sabareesan as per the affidavit filed by the opposite party. The injection fortwin is also administered to Sabareesan. This injection can be administered post operatively trauma and severe pain. Therefore, there is no definite evidence with the administration of Fortwin injection by the opposite party doctor. The side effect of administration of fortwin is immediate respiratory arrest. 14 Therefore, the prescription of this medicine in the quarter size paper contained in Exhibit A1 is not advisable and unwarranted. Diazepam was administered to Sabareesan. The side effect of Diazepam produces sedation, dizziness when given as IV sedation dizziness rarely cardiac arrest will be occurred. The side effects of Diazepam is "the patients with severe attacks of apnea during sleep may suffer respiratory depression (hypoventilation) leading to respiratory arrest and death".
18. The other medicine administered is Dexamethasone. It reflected contra indication on Sabareesan. The administration of this medicine slightly increase the sodium level. Exhibit A1 does not reveals the dosage of the said medicine administered by the opposite party doctor. The next medicine administered to Sabareesan is ampicillin and garamycin. These are the heavy antibiotic. It is broad spectrum antibiotic. No blood test has been conducted on Sabareesan for administering ampicillin and garamycin. Therefore, ambicillin and garamycin could not be administered without taking the blood test. The combined application of drugs, ampicillin, garamycin along with Dexamethosone. Fortwin and Diazepam will cause the maximized effect on Sabareesan. The combination of Fortwin and Diazepam will result in to precipitation condition. Therefore, the administration of the above said fortwin and diazepam will suddenly create a stimulate and resulting in a worse condition. On 06.12.2003 treatment was given to Sabareesan and on 07.12.2003 Sabareesan died due to taking of the medicines as prescribed by the opposite party doctor. Therefore, inference may be drawn that 10% Dextrose and 25% when it was treated cannot be given to the child.
19. It is an admitted fact by the opposite party doctor that he has no knowledge about the treating of the child. Moreover, he could not obtained the Diploma in 15 Peadiatric at the time of treating Sabareesan. The opposite party has denied that the death is not due to the wrong administration of drugs. But the evidence reveals that Sabareesan took treatment on 06.12.2003 at 8.00 P.M. and he expired on the next day Afternoon. It is not due to cardiac arrest. The so called intelligent argument is not in accordance with any material. The opposite party contended in the said written argument that in this case the drug was given to Sabareesan at 8.00 P.M. on 06.12.2003 considering the maximum duration of sedation at 10 hours the boy would have been alert after 6.00 A.M. on 07.12.2003. The parents have given Horlicks and Glucose water to Sabareesan at about 10.00 A.M. and 11.30 A.M. on 07.12.2003 as per parents' statement. No parents statement has been filed before the Forum to come to the conclusion that the parents allowed Sabareesan to take Horlicks and Glucose water. It is as per the contention of the complainant the boy did not wake up till 10.00 A.M. on 07.12.2003. The sedation nature would not have lost. So, the consuming of Horlicks and Glucose water have been purposely added by the opposite party to save himself from the clutches and crisis. Therefore the taking of Horlicks and Glucose water by Sabareesan has been inserted with malafide intention to escape from the liability of the doctor. It is purposely contended that Horlicks and Glucose water have been consumed by Sabareesan to show that Sabareesan was returning to good conscious. There is no iota of evidence to show that Sabareesan returned to good health condition from 06.12.2003 at 8.00 P.M. to till his death.
20. The death of Sabareesan is due to wrong diagnosis and wrong treatment. It is from the evidence of RW1 and RW2, the necessary treatment for Protein Energy Malnutrition is only dilatory management and not hospital treatment. The tablets 16 which consist of extra nourishment have to be prescribed by the doctor. By avoiding all these things the opposite party doctor has prescribed so much of medicines by entirely closing his eyes. It is not known to District Forum at what basis he diagnosed Sabareesan and at what intelligent he prescribed medicines to Sabareesan. The evidence deposed by the opposite party doctor is as answers is not according to the settled law. The opposite party without having the basic knowledge has played with the life of Sabareesan. The opposite party is not qualified doctor to treat the child since he does not have any special or specific qualification to treat the child but he studied M.B.B.S. degree and enrolled as member in the Indian Medical Council. Hence the opposite party doctor did not follow any acceptable procedure taking into the fact of fatigue and weakness of deceased Sabareesan.
21. The evidence of doctor, namely, the opposite party doctor in the cross and the evidence of RW2 have been analysed cumulatively each and every prescription prescribed by the opposite party doctor administered by him to Sabareesan would go to show that the prescription of medicines could not be administered to the child below 12 years. The age of Sabareesan as on the date of death, i.e., 07.12.2003 was only 8 years. Moreover the Fortwin injection and sedative medicines have been given to the deceased Sabareesan. Yet another clear evidence deposed by RW1 and RW2 is illness caused to Sabareesan could be managed by dietary management and not by hospital treatment. Therefore, all these evidences would go to show that the impact of the drugs administered caused the death of the said Sabareesan. This alone is the best conclusion that can be arrived from the evidences of RW1 and RW2 evidence though postmortem has not been conducted and postmortem certificate has not been filed.
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22. The complainant has not examined any expert on their side. But Dr.Ilamathi has been examined on the opposite party side as RW2. By his evidence and the evidence of the opposite party doctor clear the facts favourable in favour of the complainant. By taking into consideration of the theory of Res-ipso-loquitor. This theory favours the contention of the complainant. The facts itself speaks the merit of the complaint.
23. The physician in his treatment he should never forget that the health and the lives of those entrusted to his care depends on his skill and attention. For good reason when a patient is suffering from an ailment which is not within the range of experience of the treating physician, the physician may refuse treatment and refer the patient to another physician. When the patient is referred to special treatment by attending the physician a case summary of the patient should be given to the specialist.
24. The counsel for the appellant would contend that according to IAP classification the weight of the deceased boy was 18 kg which is written in the prescription sheet the age of the boy was 9 completed years. According to the below formula:
Weight in kg = (age in years x 7) - 5-/2=29 kg Ideal Weight = Real Weight/expected weight x 100 = 18 / 29 x 100 = 62%. Even if the weight of the boy was 20 kg according to the above formula the Ideal weight is 68.9%. Both the weight 62 % and 68.9 % comes under Grade II Malnutrition. Hence the diagnosis made is correct. Any M.B.B.S., degree holders registered in Indian Medical Council is empowered to treat all cases Paediatrics to geriatrics. The opposite party gave only the first aid treatment. Diagnosing PEM and 18 severe dehydration is possible only on the clinical signs and symptoms. It does not require elaborate investigations.
1. Zoxan - Ciprofloxacin - This will not do any harm to the boy. Further these group of drugs are still now in use by the paediatricians.
2. Bend-Albendazole - In any PEM child it is mandatory to deworm him with albendazole once.
3. Ambcet-Ambroxol and Cetrizine - the boy had mild cough and hence it is prescribed. These drugs are not contraindicated in children.
4. Dexamethasone - is given to reduce the severity of underlying infection.
5. Ampicillin and Gentamicin are not heavy antibiotics. They are not contraindicated in children.
6. Fortwin & Diazepam - In a restless child it is customary to give oral sedatives to calm the child and give IV fluids. The appellant is doing general practice for the past 16 years in Karur. He has no black marks in his practice so far.
Therefore the complainants are not entitled in any compensation and there is no negligence on the part of the opposite party.
25. The counsel for the respondents/complainants would contend that in cross examination of RW1 admits that PEM Type II is moderate the boy was classified by the opposite party as protein energy malnutrition Type II. According to the Indian Academy of Paediatrics is classification 70 to 80 can be classified as Grade II. When a question raised to the opposite party with regard to the Grade I and Grade II is answered " I have to refer the books". Therefore, the opposite party is not clear in classification of Grade I and he did not require any treatment. Grade II require dietary management and hospital Management is not necessary. The method of 19 measuring the weight of the boy to sit over the weighing machine not the accepted method. The opposite party did not have any basic qualification for treating paediatrics are not administration of drugs:
i) Tablet Zoxan:
This drug ought not to have been given to children below 12 years.
ii) Fortwin Injection:
It was not recommended for children.
iii) Metrogyl:
Admitted the boy does not have any infection.
iv) Tablet bend:
The boy was not suffering any illness.
v) Tablet Ambcet:
The boy does not have throat infection or cough. The administration is unwarranted
vi) Diazepam:
It effect Central nerves system, and also lead to cardiac arrest. It was also admitted by the opposite party.
v) Dexamethasone:
It is the steroid drug. It ought not to have been given to child.
vi) Ampicillin and Garamycin:
Both the drugs are heavy antibiotic to treat the severe infection suffered by any person due to virus or bacteria attack. The blood test is mandatory. It was not done.20
vii) Dextrose:
Even for critically ill children 5% alone to be administered. Here 25% Dextrose has been given.
The aforesaid facts clearly establish the negligent treatment of the opposite party.
26. Dr.Illamathi was examined to enquire the incident. He gave report wherein which he categorically held that the opposite party had no knowledge of treatment the Paediatrics. The same was admitted by the opposite party in his cross examination. The report is unreliable for the following reasons and witness RW2 in first phase says he was not treated for any specific illness but treated for vomiting, fever and restlessness. In second phase he says the boy was suffering from illness probably by related Central Nervous System. RW2 says under special circumstances the Tablet Zoxan can be given and Fortwin can be given to the children. RW1 and RW2admits injection Calmpose given may lead to hypoventilation. Respiratory arrest and cause death. RW1 & RW2 admits there is no blood test before giving Ampicillin and garamycin. RW2 initially says 61 to 80 is classified as Grade II. Later on changed his view and admits 61 to 70 is classified as Grade II. Therefore, both RW1 and RW2 are totally ignorant of PEM II. RW2 admits that there is no written evidence for arriving conclusion under Ex.B1 that the boy was affected by serious decease. Further he admits that even in such circumstances of supposed illness Dr.Nijam Babu cannot prescribe this medicine.
27. The counsel for the complainant relied upon the citation:
(1) III (2009) CPJ 17 (SC) - in the case of Malay Kumar Ganguly -Vs-
Sukumar Mukherjee (DR.) & Others.
21(2) II (2013) CPJ 708 (NC) - National Consumer Disputes Redressal Commission, New Delhi - in the case of - Goyal Hospital and Research Centre Private Limited & Others -Vs- Kishan Gopal Shukla & Another - in page No.171- " The Apex Court in various judgments has clearly observed that; unless the person holds a necessary qualification, should not perform job of the Specialist.
(3) The judgement of Hon'ble Supreme Court in Malay Kumar Ganguly -Vs- Sukumar Mukherjee (DR.) & Others wherein it has been observed that even in the matter of determining deficiency in medical service, it is now well settled that if representations is made by a doctor that he is a specialist and ultimately it turns out that he is not, deficiency in medical services would be presumed.
(4) III (2009) CPJ 121 (NC) - National Consumer Disputes Redressal Commission, New Delhi - in the case of - Arvind Shah (DR.) -Vs- Kamlaben Ramsingh Kushwaha - At page 126 (NC) the code of ethics/guidelines/regulations of the relevant Council would require him to make, even for an out-patient, some minimal record. Such a record would ordinarily include a summary the history of illness and current complaints/symptoms of the patient and clinical observations of the doctor. However, if the doctor considered none of the forgoing essential, he would need to record at least a provisional diagnosis of the patient's ailment before advising further diagnosis test(s) or treatment (medicines/injections) in the document called prescription. This, in our 22 view, would be one of the primary duties of disclosure owed by a physician of ordinary skills to his parent.
28. Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 - (Amended upto 8th October 2016) - Chapter 7.20 A Physician shall not claim to be specialist unless he has a special qualification that branch.
29. It is evident that the boy was brought by the parents to the clinic run by the opposite party without any specific ailments they approached the opposite party only to know the fitness of performing Padayathra to Sabarimalai as explained by the both parties. The boy was aged only 9 years. The opposite party did not have any required qualification to treat the boy. The opposite party specifically admits he did not have the qualification. Further the opposite party administered so many drugs to the boy and gave so many explanation do not reflect professional conduct worthy of a registered medical practitioner of long standing experience as the opposite party claim, who have such conduct can be due only one cause full awareness of his negligence in treating the boy and then trying to wriggle out of the consequences. The failure to record even the provisional diagnosed of the boy ailments before prescribing treatment. This failure as serious consequences in my opinion there is no reason to disbelieve the facts stated by the complaints' counsel in their written arguments, and not in accordance with provisional conduct Etiquette and Ethics framed by Indian Medical Council.
30. In their well reasoned order made by the District Forum it has been amply brought down that the treatment given by the opposite party doctor to Sabareesan is not accordance with the need for the child. Everything namely, diagnosing and administering are on wrong path. This service rendered by the opposite party doctor 23 on Sabareesan resulting the cause of death which amounts to deficiency in service on the part of the opposite party doctor treatment. It is clear that the District Forum is rightly concluded that the boy died due to wrong treatment by prescribing unwarranted medicines and injections not according to the age and weight of the deceased Sabareesan and answered accordingly for the point for consideration no.1 and 2.
31. In the result, the appeal is dismissed by confirming the order of the learned District Forum, Karur made in C.C.No.07/2005, dated 16.04.2010. In addition the appellant/opposite party is directed to pay additional cost of Rs.5000/- to the respondents/complainants in this appeal.
Dictated to the Steno-typist transcribed and typed by her corrected and pronounced by me on this the 21st day of February 2022.
Sd/-xxxxxxxxxxx N. RAJASEKAR, PRESIDING JUDICIAL MEMBER.
Additional of Documents filed before this Commission on the side of the appellant/opposite party.
Ex.B3 14.03.1995 Birth Certificate with regard to deceased Shabareesh.
Ex.B4 15.07.2004 The complaint given by the complainants to the District Superintendent of Police, Karur.(Two sheets).
Sd/-xxxxxxxxx N. RAJASEKAR, PRESIDING JUDICIAL MEMBER.
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