State Consumer Disputes Redressal Commission
Dr. Sameer Kaushal vs Smt. Baljit Kaur (Since Deceased) ... on 18 December, 2013
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.480 of 2009.
Date of Institution: 08.04.2009.
Date of Decision: 18.12.2013.
Dr. Sameer Kaushal, Proprietor, Amar Hospital, Sector-70, Mohali.
.....Appellant.
Versus
1. Smt. Baljit Kaur (since deceased), now represented through her
LRs:-
i) Jasbir Singh S/o Sh. Kirpal Singh, R/o # 945, Phase-7, Mohali
(being husband of Baljit Kaur)
ii) Parvinder Bir Singh S/o Sh. Jasbir Singh, R/o # 945, Phase-7,
Mohali (being son of Baljit Kaur)
iii) Naginder Bir Singh S/o Sh. Jasbir Singh, R/o # 945, Phase-7,
Mohali (being son of Baljit Kaur)
iv) Amrit Pal Kaur w/o Sh. Joginder Singh, R/o 3689, Sector-46,
Chandigarh (being daughter of Baljit Kaur).
...Contesting Respondents.
2. Oriental Insurance Company, SCO 20, Phase-1, Mohali.
...Performa Respondent.
First Appeal against the order dated
06.03.2009 passed by the District
Consumer Disputes Redressal Forum,
SAS Nagar.
Before:-
Shri Inderjit Kaushik, Presiding Judicial Member.
Shri Vinod Kumar Gupta, Member.
...................................
Present:- Sh. Dr. Sameer Kaushal, appellant in person.
Sh. Munish Goel, Advocate, counsel for respondent no.1. First Appeal No.480 of 2009 2 Sh. Vinod Chaudhari, Advocate, counsel for respondent no.2.
----------------------------------------
INDERJIT KAUSHIK, PRESIDING JUDICIAL MEMBER:-
This order will dispose of the two (2) appeals i.e. F.A. No.480 of 2009 (Dr. Sameer Kaushal Vs Late Smt. Baljit Kaur & Anr.) and F.A. No.549 of 2009 (Late Smt. Baljit Kaur Vs Dr. Sameer Kaushal & Anr.) as both the appeals are directed against the same order dated 06.03.2009 passed by the learned District Consumer Disputes Redressal Forum, SAS Nagar (in short "the District Forum"). Facts are taken from F.A. No.480 of 2009 and the parties would be referred by their status in this appeal.
2. Initially, Smt. Baljit Kaur (since deceased) respondent no.1/complainant (hereinafter called as "respondent no.1") filed a complaint under section 12 of the Consumer Protection Act, 1986 (in short, "the Act") through her power of attorney, as she was aged 69 years and was bed ridden and was not able to move. During the pendency of the complaint, she died and her LRs were ordered to be impleaded vide order dated 25.06.2008 of the District Forum.
3. Facts in brief are that respondent no.1 contacted the appellant and after investigation, she was diagnosed as suffering from Urinary Tract Infection (UTI). The appellant treated her from 04.03.2006 to 02.04.2006. The appellant mainly gave the injections 'Mikacin' and after a day or two of administration of the said injections, respondent no.1 found that she was losing her hearing power. She contacted the appellant, who told that the above injections were necessary for the treatment. He further told that in case of hearing trouble, the same could be rectified by hearing aid and continued with the same First Appeal No.480 of 2009 3 treatment, but the condition of respondent no.1 deteriorated and she became totally deaf.
4. Respondent no.1 consulted other doctors. Dr. Harpreet Singh. ENT Specialist examined her on 02.04.2006 and told that she has become totally deaf and it was due to the overdose of 'Mikacin'. On 03.04.2006, respondent no.1 consulted Dr. K.S. Chugh, Professor of Nephrology and he also told that due to overdose of 'Mikacin', the kidney of respondent no.1 was badly affected.
5. On 04.04.2006, respondent no.1 was admitted in PGI, Chandigarh and her kidneys were so much affected that she was put on dialysis and she remained indoor patient in PGI upto 13.04.2006 and thereafter, she continued taking treatment as outdoor patient from PGI. She had absolutely lost her hearing power. Before taking the treatment from the appellant, she had no hearing problem. The kidneys of respondent no.1 were so affected that they almost failed and respondent no.1 became crippled and could not pursue the daily pursuits.
6. The appellant was negligent in performing his duties and he did not inform about the side effects of the injections and continued giving the injections and also assure that it will have no after-effects. The appellant was careless and negligent.
7. It was prayed that Rs.7.00 lacs may by awarded as compensation for absolutely losing her hearing power and Rs.10.00 lacs for causing damage to the kidneys. She could not look after her son, aged about 29 years, who is dependent upon her and his I.Q. is 25% and Rs.3.00 lacs were claimed as compensation. Interest on the entire compensation was claimed @ 18% p.a. and in all, it was prayed that the sum of Rs.20.00 lacs be awarded along with interest and costs. First Appeal No.480 of 2009 4
8. In the written version filed on behalf of the appellant, preliminary objections were taken that the complaint has been filed against the appellant as proprietor of Amar Hospital, which is not correct. Amar Hospital is being run by a charitable trust and the appellant provides services free of cost to the hospital and the memo of the parties is required to be amended. The appellant has got an insurance cover from Oriental Insurance Company under Doctors Professional Indemnity Insurance for the period 30.06.2005 to 29.06.2006.
9. On merits, it was submitted that no detailed reply can be given as the appellant is not maintaining the prescription record of OPD patients and respondent no.1 had also not placed on record the so- called medical treatment given by the appellant from 04.03.2006 to 31.03.2006. There is one prescription slip dated 01.04.2006, but in that prescription, 'Amikacin' injection has not been prescribed. No other prescription slip has been placed on record. All other allegations were denied and it was prayed that the complaint may be dismissed with costs.
10. In the written version filed on behalf of respondent no.2, preliminary objections were raised that the complaint is not maintainable in the present form and the District Forum has no jurisdiction to entertain the complaint. Complicated questions of facts and evidence are involved and the civil court is competent. Respondent no.1 has no locus standi and the liability of respondent insurance company as per the policy is upto Rs.1.00 lac only subject to terms and conditions of the policy. The appellant never informed the answering respondent about the present complaint and the answering respondent First Appeal No.480 of 2009 5 is not liable to pay any compensation. All other allegations were denied and it was prayed that the complaint may be dismissed with costs.
11. Parties led evidence in support of their respective contentions by way of affidavits and documents.
12. After going through the documents and material placed on file and after hearing the learned counsel for the parties, the learned District Forum framed the following material points for determination of the present complaint:-
I. Whether the deceased complainant got treatment for UTI from OP No.1 from 04.03.2006 to 02.04.2006?
II. Whether she had been prescribed the injection of 'Mikacin/Amikacin' by OP No.1 and whether he prescribed overdose of this drug?
III. Whether the deceased complainant became totally deaf on account of overdose of the said drug?
IV. Whether there was a failure of the kidneys of the deceased complainant on account of overdose of this drug? V. Whether OP No.1 was negligent in prescribing the aforesaid drug to the deceased complainant and is liable to pay any compensation to the deceased complainant? If so, to what extent?
VI. What is the effect of non-impleading of Amar Hospital? VII. What is the extent of liability of OP No.2-Insurance Company? VIII. Whether the consultation provided by OP No.1 to the deceased complainant was free and whether due to that reason, the complainant is not a 'consumer' qua OP No.1?
While deciding Point No.I, after detailed discussion, the District Forum observed that the deceased respondent got the treatment and prescription from the appellant w.e.f. 04.03.2006 to 24.03.2006 and the entries dated 11.03.2006 and 17.03.2006 on the reverse of Ex.CX are made by the appellant and the Point was decided in favour of the deceased respondent Baljit Kaur. First Appeal No.480 of 2009 6
While deciding Point No.II, after detailed discussion, it was observed that the appellant himself in answer to question no.50 has admitted that proper and optimum dosage of Amikacin is 15 mg/kg/body weight divided into two or three doses and that itself suggested duration is 14 days in case of upper UTI. The appellant prescribed overdose of Amikacin to the deceased respondent.
While deciding Point No.III, after detailed discussion, the District Forum observed that the deceased respondent became totally deaf on account of overdose of Amikacin by the appellant.
While deciding Point No.IV, after detailed discussion, it was observed that the urea and serum creatinine level increased abnormally and the obvious reason is that this was on account of overdose of Amikacin prescribed by the appellant. Even though, nephrotoxicity was controlled after admission of respondent no.1 in PGI, yet she had to suffer on account of overdose of Amikacin till 13.04.2006.
While deciding Point No.V, after detailed discussion, the District Forum observed that after thoughtful consideration of the matter and considering the age of 69 years and her 35 years of diabetes and old hypertension of the deceased respondent at the time of treatment, she is entitled to the compensation of Rs.2.00 lacs for loss of hearing and Rs.25,000/- for adverse affect on kidneys.
While deciding Point No.VI, it was observed that in case Amar Hospital had been impleaded, then the liability should have been joint as well as several, but the appellant is liable for his negligence.
While deciding Point No.VII, it was observed that respondent no.2 is liable to indemnify the appellant for the above said compensation to the extent of Rs.1.00 lac.
First Appeal No.480 of 2009 7
While deciding Point No.VIII, after detailed discussion, it was observed that respondent no.1 was duly charged by the hospital for the services rendered by the appellant, who was the member of the Trust and also a consultant doctor in the hospital. The relationship of consumer and service provider between respondent no.1 and the appellant stands proved.
Accordingly, the complaint was allowed and the appellant was directed to pay compensation of Rs.2.25 lacs to the LRs of decease respondent with interest @ 9% p.a. w.e.f 04.03.2006 till the date of payment. Out of this amount, respondent no.2 is liable to pay Rs.1.00 lac to the LRs of respondent no.1 with interest at the above rate and for the above period. The liability is joint and several. The appellant and respondent no.2 were also directed to pay Rs.2,000/- and Rs.1,000/- as costs of litigation to the LRs of deceased respondent no.1 and the compensation shall be shares equally. Share of Sh. Naginderbir Singh, LR of respondent no.1, who is of unsound mind, was ordered to be deposited in a Nationalized Bank.
13. Aggrieved by the impugned order dated 06.03.2009, the appellant has come up in the present appeal, for setting aside of the impugned order.
14. On the other hand, LRs of respondent no.1/complainant have filed the cross appeal i.e. F.A. No.549 of 2009 (Late Smt. Baljit Kaur Vs Dr. Sameer Kaushal & Anr.), for enhancement of compensation as prayed in the complaint.
15. We have gone through the pleadings of the parties, perused the record of the learned District Forum and have perused the written arguments submitted on behalf of all the parties. First Appeal No.480 of 2009 8
16. In the written arguments filed on behalf of the appellant, the facts were narrated and it was further submitted that the order passed by the District Forum is against the facts and evidence on file. The District Forum has not appreciated the evidence that it is a protocol of Amar Hospital to register the patient at OPD reception and then send the patient to the concerned doctor. Respondent no.1 Baljit Kaur has not taken consultation on 7th, 10th, 11th and 17th March, 2006. The patient consulted a private practitioner, who diagnosed UTI and put her on Amikacin. The fever subsided. If the symptoms subside, then why a doctor should continue the prescription of Amikacin. The slip allegedly issued on 11.03.2006 and 17.03.2006 is not signed by the appellant. The onus of proving the handwriting was on respondent no.1 and the District Forum has not followed the guidelines issued in case "Indian Medical Association Vs. V.P. Shantha" by the Hon'ble Supreme Court.
17. The record of PGI i.e. discharge-cum-follow up card shows that Amikacin 500 mg. BD for 15 days and 14 gms. was prescribed and as per the statement of Dr. Anil Bhansali, Amikacin 500 mg. BD for 15 days and 15 gms. and same was the statement of Dr. Harpreet Singh. There is no evidence to suggest that the doses were beyond 15 gms. The District Forum believed the chemist bills dated 04.03.2006, 11.03.2006 and 18.03.2006, whereas the admission in the PGI was on 05.03.2006. In "Dr. Martin F. D'Souza Vs Mohd. Ishfaq", there were similar allegations and no case of the overdose of the drug was made out. The District Forum relied upon the statement of Dr. Harpreet Singh and Dr. Anil Bhansali, but has not considered the statement of the appellant, Dr. Darshan Singh, ENT Expert and literature produced by the appellant. As per Dr. Bhansali, hearing of loss was around 29.03.2006 and it was sudden, but at that time, the patient was not First Appeal No.480 of 2009 9 under treatment of Amar Hospital nor the patient informed about it to the hospital. Dr. Harpreet Singh has also not stated about the condition of the patient and has also not performed any test to evaluate the hearing, not even audiometry, tympanometry and without that, the patient cannot be declared as profound deaf. The audiometry carried out at PGI, Chandigarh reveals bilateral sensorineural deafness. No attempt was made to differentiate the deafness as sensory or neural. There are multiple causes of sensory and neural deafness which cannot be concluded without proper evaluation. Without measuring the plasma level of Amikacin, it cannot be concluded that the deafness is because of Amikacin. Respondent No.1 Baljit Kaur had ear discharge, cough, fever and urinary tract infection and all this may have caused precipitated deafness and renal failure. The statement of Dr. Harpreet Singh is without any basis.
18. The opinion of the specialist carries weight. Dr. Anil Bhansali is neither a Nephrologist, nor ENT Specialist and his view cannot be relied. Dr. Darshan Singh in his evidence has mentioned multiple causes of sensori neural deafness like infection, vascular causes etc., but no attempt was made to see the causes in the present case. Respondent no.1 has failed to prove any deficiency in service. The District Forum has wrongly tried to differentiate the case of respondent no.1 Baljit Kaur from the case of 'Mohd. Ishfaq' The evidence and the arguments of the appellant were not appreciated. Dr. Bhansali admitted that Amikacin, if properly administered, is a wonder drug, but monitoring of renal functions is mandatory and renal damage is reversible. Respondent no.1 had record of diabetes for the last 35 years and her diagnosis proves that infection caused the problem and not the drug. The District Forum has also ignored the observations of First Appeal No.480 of 2009 10 the Hon'ble Supreme Court that Bolam test holds good and is acceptable in India. There was no breach in duty by the appellant. Amar Hospital was not impleaded and the appellant is providing free service to Amar Hospital and respondent no.1 was a consumer of Amar Hospital and not of the appellant. The appellant is not proprietor of the hospital. The charges were paid to Amar Hospital, but the District Forum has failed to appreciate all these facts. The order passed by the District Forum is not sustainable and is liable to be dismissed.
19. In the written arguments filed on behalf of respondent no.1, facts were narrated and it was further submitted that prescription slip dated 04.03.2006 makes it clear that the appellant prescribed injection Amikacin on 04.03.2006 and repeated the same on 11.03.2006 and again repeated on 17.03.2006. Respondent no.1 was admitted in PGI due to wrong treatment given by the appellant and she has suffered acute renal failure and sensorinual hearing loss and the same is mentioned in the patient ticket dated 04.04.2006 of the PGI. Ex.C-1 is the study as per which injection Amikacin is given with utmost care, but the appellant did not monitor the cretainine level which resulted into renal failure. Dr. Anil Bhansali from PGI gave his expert opinion. Proper dose or the optimum dose is 10 days, but with the monitoring of kidney functions.
20. Respondent no.1 after having hearing problem due to wrong treatment by the appellant, went to ENT Hospital on 02.04.2006 and Dr. Harpreet Singh asked her to stop Amikacin. Dr. Harpreet Singh in reply to the interrogatories, answered to question No.5 that the cause is injection Amikacin, complicating already pre-existing multiple predisposing factors and the side effects of injection Amikacin are permanent hearing loss and there is no chance of improvement. First Appeal No.480 of 2009 11 Respondent no.1 was bed-ridden and a maid-servant was engaged and Rs.4,000/- per month along with meals were given to her. Dr. K.S. Chugh also mentioned that the patient took the injection Amikacin on prescription of the appellant. Statement of Dr. Darshan Singh is not reliable, as he is friend of the appellant and it cannot be read into evidence. Dr. Darshan Singh never checked Smt. Baljit Kaur and he also admitted that the injection Amikacin can cause loss of hearing. Satnam Singh in reply to the questionnaire has not given the statement by way of affidavit and the same cannot be read. He runs a clinical laboratory in Amar Hospital. He admitted that the tests were conducted on the recommendation of Dr. Sameer Kaushal. The appellant charged the fee at his home visit and also collected samples for tests at the laboratory run by Satnam Singh in Amar Hospital. Annexures A-6 to A13 show the various tests conducted and the reports were manipulated. The appellant was asked by the District Forum to file affidavit on oath, but he did not comply. Affidavit filed by Sh. Satnam Singh is also false.
21. The appellant in reply to Question No.7, stated that he is member of Munshi Ram Charitable Trust and is holding the post of Cashier. He further admitted that the name of the father of the appellant is Amar Nath and the name of his grandfather is Munshi Ram. Thus, it is clear that Amar Hospital is owned by the appellant and at present, the president of Amar Hospital is mother of the appellant. The land where the Amar Hospital is constructed is the ownership of the appellant and the appellant always presented himself to be the proprietor of Amar Hospital. Amar Hospital is owned and run by the appellant and his family members in the name of the Trust. The appellant also admitted that he is in Govt. job and without resigning First Appeal No.480 of 2009 12 from the Govt. job, is serving at Amar Hospital which is illegal in the eyes of law. The appellant also admitted that he has not made any written contract with Munshi Ram Charitable Trust which further proves that the appellant is owner. The documents annexed by the appellant in reply to questionnaire are not tendered in evidence by the appellant. Annexure R-17 to Annexure R-24 cannot be read into evidence. From the income tax returns of the year 2006-07, 2007-08, it is clear that the appellant is getting salary from Amar Hospital, but after the present complaint, he did not withdraw the salary and that was considerably reduced. In reply to Question No.22, the appellant admitted that he visited the house of respondent no.1 on 04.03.2006, but he stated that he has not received any fee which cannot be believed. The appellant visited the house of respondent no.1 and charged the fee and respondent no.1 was consumer under the Act. The appellant admitted in reply to Question No.23 that prescription slip dated 04.03.2006 is in his own handwriting. In reply to Questions No.36 and 38, he has denied these facts and in reply to Question No.39, he stated that he came to know from the relatives of the patient that there were no adverse symptoms. In reply to Question No.44, it was admitted by the appellant that audiometry is advisable test before starting/giving the injection Amikacin, but the same was not conducted which proves deficiency in service and negligence on the part of the appellant. In reply to Question No.50, it was admitted by the appellant that duration of Antimicrobial therapy in case of upper UTI is 14 days, whereas he has administered injection Amikacin for continuously three weeks i.e. more than 21 days. This resulted into complete deafness and acute renal failure. Respondent no.1 suffered all this due to deficiency in service and negligent treatment of the appellant. Prescription slip Ex.C-X proves so. First Appeal No.480 of 2009 13 Appellant also admitted in reply to Question No.1 that the patient should be monitored for renal functions, preferably daily and also audiometry should be done. In the present case, the appellant kept on giving injection Amikacin for more than 21 days without monitoring the same which resulted in complete deafness and renal failure. The statements of Dr. Anil Bhansali and Dr. Harpreet Singh, PGI record, prescription slip dated 04.03.2006 and reply to the questionnaire by Satnam Singh, Parminder Kaur and appellant make it clear that the appellant was negligent in treating respondent no.1 and she suffered complete deafness and acute renal failure and she remained in PGI and later on, she died due to wrong and negligent treatment given by the appellant, on 11.04.2008 due to renal failure.
22. It was contended on behalf of respondent no.1 that the compensation is inadequate and is on lower side and the same requires to be enhanced to Rs.20.00 lacs. Awarding of Rs.25,000/- for adverse effect on kidneys is also on lower side and the compensation of Rs.2,000/- and litigation expenses of Rs.1000/- are also required to be enhanced.
23. We have considered the respective written submissions submitted on behalf of the parties and have thoroughly scanned the entire record and other material placed on the file.
24. Respondent no.1 approached the appellant and after investigation, she was diagnosed as suffering from Urinary Tract infection (UTI) and she remained under the treatment of appellant from 04.03.2006 to 02.04.2006. Ex.C-X is the prescription slip of Amar Hospital dated 04.03.2006 and as per this, she was prescribed injection Amikacin 500 mg. 1/MBD and other medicines and she was diagnosed as a patient of UTI. Prescription slip Ex.C-X shows that respondent no.1 First Appeal No.480 of 2009 14 was registered as outdoor patient in the hospital of the appellant. On 04.03.2006, the injection Amikacin 1/MBD was given for one week along with other medicines and on11.03.2006, it was again repeated for seven days and on 17.03.2006, it was further repeated for eight days. In reply to Question No.22, appellant admitted that on 04.03.2006, husband of respondent no.1 requested him to see her at home, as she was unable to come and as the patient was requiring investigations, so the Lab. Technician was also taken along with for taking samples, to the house of respondent no.1. In reply to Question No.24, regarding the tests conducted, it was stated that RFT urine C/E, urine C/S, the patient had report of blood sugar and urine C/E before that also. In reply to Questions No.37 and 38, regarding visiting to the house of respondent no.1, it was replied that there is no record available in the hospital and patient availed Lab. services on 07.03.2006 and 10.03.2006 and she can answer these questions after the decision of his application dated 16.03.2008. In reply to Question No.66, it was answered that the husband of respondent no.1 was given list of tests to be conducted, preferably daily. The husband of the patient adhered to do partially, but did not keep in touch with him. In reply to question No.72, regarding checking of respondent no.1 on 17.03.2006 and repeating medicines along with injection Amikacin, it was replied that there is no such record available. In reply to Question No.68, that the prescription written on 11.03.2006 and 17.03.2006 at the back of slip dated 04.03.2006, having Registration No.2090, is in his hand, to which the appellant completely denied.
25. Ex.R-4 is the affidavit of Sh. Satnam Singh. He deposed that he is running a Clinical Laboratory in Amar Hospital, Sector-70, Mohali and in Oxford Hospital. On 04.03.2006, he performed Lab. tests First Appeal No.480 of 2009 15 on patient Baljit Kaur for urine complete examination and culture, renal function test and entries are D-1. Renal function test was again done in Chandigarh Diagnostic Lab. and entries are D-2. Entry of the test performed on 07.03.2006 is Ex.D-2/A. On 10.03.2006, he performed Lab. test on patient Baljit Kaur, fasting blood sugar and urine complete examination and entries are D-3. He also carried out test on 13.03.2006 and entries are D-4 and entries of tests conducted on 01.04.2006 are D-5 to D-7 and again on 02.04.2006, tests were carried out and the entries are D-8. Perusal of the OPD register of the appellant show that entries Ex.R-13, Ex.R-14 were made and the same were after consulting the appellant, as the name of the appellant 'Dr.S.K.' is mentioned. Ex.R-6 to Ex.R-12 prove the various testes conducted at the asking of the appellant. Handwringing on entries dated 11.03.2006 and 17.03.2006 on the reserve side of Ex.C-X is in the hands of the appellant which clearly prove that respondent no.1 was continuously giving injection Amikacin from 04.03.2006 to 17.03.2006 and on 17.03.2006, it was again repeated for 8 days. However, the appellant tried to evade the answers to the questions put to him in negative on the pretext that the record of the hospital is not available.
26. Dr. Anil Bhansali of PGI, Chandigarh deposed that respondent no.1 was admitted in PGI, Chandigarh on 5th April, 2006 and was discharged on 13.04.2006. She was admitted in PGI, as a case of acute renal failure and bilateral hearing loss. Question No.6 was put to Dr. Anil Bhansali which is reproduced below:-
Question No.6: Could you spell out the reasons for the failure of kidneys of patient?
Answer: Diabetes and hypertension of long duration because she had diabetes for 35 years, contributed to it and further First Appeal No.480 of 2009 16 compounded by the use of Amikacin allegedly administered to her under some medical advice prior to her admission in PGI.
27. He further answered that as per practical knowledge, Amikacin leads to loss of hearing and the reported article in this direction is Ex.C-1. Long use of Amikacin can also lead to increase in urea and cretainine. Question No.12 is reproduced as follows:-
Question No.12: could the excessive use of injection Amikacin affects hearing and kidney?
Answer: Yes.
28. He further deposed that as per the history of the patient, she was treated by some private practitioner before the admission in PGI. Name of the private practitioner was never disclosed by the attendant of the patient. It was however disclosed in the history by the attendant of the patient that she had been administered Amikacin 500 mg. twice a day for 15 days. The use of Amikacin for that much time and strength lead to toxieffect on the kidney and ear in already patient with compromised renal function. It also leads to ringing or buzzing or feeling of fullness in the ears. This witness was cross-examined by the appellant and in his cross-examination, he deposed that the proper dose or to say optimum dose of Amikacin is 500 mg. twice a day at the most for seven to 10 days, but with monitoring of the kidney function.
He further admitted that Amikacin, if properly administered, is a wonder drug, but monitoring of renal function is mandatory.
29. The version of respondent no.1 regarding taking of the Amikacin dose and that of the appellant differs, but the record of the PGI, copy of which is Ex.C-19, shows that respondent no.1 purchased 14 injections respectively of Amikacin on 04.03.2006, 11.03.2006 and First Appeal No.480 of 2009 17 18.03.2006 of the potency of 500 mg. each. The copies of the bills i.e. bearing bill No.22 dated 04.03.2006, bill No.45 dated 11.03.2006 and bill no.62 dated 19.03.2006 prove the same and from these documents, it is clear that 21 gms. of Amikacin was consumed by respondent no.1.
30. As has been discussed above, Ex.C-X prescription slip was issued by the appellant and the entries on the reverse of Ex.C-X were made by the appellant and the doses were prescribed by the appellant. As per the evidence of Dr. Anil Bhansali, the proper dose of Amikacin 500 mg. twice a day is maximum for seven to 10 days dose, but with the monitoring of the renal function. The appellant has failed to bring on record any evidence to prove that he monitored the renal function of patient Baljit Kaur time to time. The appellant also did not recommend the test of audiometry before administering the Amikacin or during the administration of Amikacin on the patient Baljit Kaur, whereas PGI, Chandigarh after her admission on 05.04.2006, conducted audiometry test on 12.04.2006 and the report is Ex.C-26. Dr. K.S. Chugh examined respondent no.1 Baljit Kaur on 03.04.2006 vide Ex.C-29 and found that she has taken Amikacin 500 mg. BD for 15 days in Amar Hospital which was given by Dr. Sameer Kaushal and her S-cretainine has gone upto 7.8 mg. and particularly, prescribed no Amikacin. The literature Ex.C-25 relied upon by respondent no.1 and Ex.R-16 relied upon by the appellant show that Amikacin can cause hearing loss and kidney related problems as side effects. Under head 'Preparation, Routes of Administration and Dosage', in Ex.R-16, it was provided as follows:-
"Preparation, Routes of Administration and Dosage:- First Appeal No.480 of 2009 18
Amikacin, U.S.P. (AMIKIN) is available as the sulfate in 2-ml vials containing either 100 or 500 mg. of the drug and in 4-ml vials containing 1 mg. The recommended dose is 15 mg./kg. per day, divided into either two or three equal portions. The individual dose or the interval between doses must be altered in patients with renal failure. The drug is rapidly absorbed after intramuscular injection, and peak concentrations in plasma approximate 20 mg/ml. after injection of 7.5 mg./kg. An intravenous infusion of the same dose over a 30 minute period produces a peak concentration in plasma of nearly 40 mg./ml. at the end of the infusion; this falls to about 20 mg./ml. 30 minutes later."
31. Thus, from the above literature, it is clear that Amikacin has to be used carefully and proper dose has to be given. The appellant has relied upon the authority of the Hon'ble Supreme Court in case "Martin F. D'Souza Vs Mohd. Ishfaq", 2009 STPL (CL)-922(SC), but the above authority of the Hon'ble Supreme Court is not applicable to the facts and circumstances of the present case because in that case, the patient was already suffering from chronic renal failure and was undergoing haemodialysis twice a week on that account and it was so mentioned by the Hon'ble Supreme Court in Para-77 of the judgment. But in the present case, patient Baljit Kaur was suffering from Urinary Tract Injection (UTI) and was not having any renal problem at the time of initially taking the treatment from the appellant. At the cost of repetition, it is again said that Amikacin 500 mg. was given twice a day to the patient Baljit Kaur and 42 doses were given which were much more than the permitted limit because as per Dr. Anil Bhansali of PGI, First Appeal No.480 of 2009 19 the proper dose was for 7 to 10 days which shows that it should have been 7 gms. to 10 gms. in all, but injecting Amikacin of 21 gms. was much more and sheer negligence on the part of the appellant and that too without monitoring the renal functions and that led to the complete impairment of the hearing as well as the kidney failure and ultimately, patient Baljit Kaur died.
32. The District Forum has framed various points for determination and has discussed the evidence led by both the parties in detail and has passed the speaking order, but the quantum of compensation is required to be enhanced. The District Forum has awarded the compensation of Rs.2.25 lacs only and out of this amount, respondent no.2 insurance company has been directed to pay Rs.1.00 lac and awarded Rs.2,000/- and Rs.1,000/- as costs of litigation.
33. Sequel to the above discussion, the appeal filed by the appellant-Dr. Sameer Kaushal (F.A. No.480 of 2009) is dismissed and the appeal filed by respondent no.1/complainant Smt. Baljit Kaur (since deceased) through her LRs (F.A. No.549 of 2009) is allowed and the impugned order under appeal dated 06.03.2009 passed by the District Forum is modified and the compensation is enhanced to Rs.4.00 lacs (Rupees Four Lacs) in lumpsum which the appellant and respondent no.2-Oriental Insurance Company is liable to pay jointly and severally along with interest @ 7.5% p.a. from the date of filing of the complaint i.e. 06.10.2006 till realization. Rs.20,000/- is awarded as litigation expenses.
34. The appellant had deposited an amount of Rs.25,000/- with this Commission at the time of filing of the appeal. This amount with interest accrued thereon, if any, be remitted by the registry to the LRs of respondent no.1/complainant in equal shares by way of a crossed First Appeal No.480 of 2009 20 cheque/demand draft after the expiry of 45 days under intimation to the learned District Forum and to the appellant. This payment shall be made as per the order passed by the District Forum regarding the payment to various LRs.
35. Remaining amount as per this order shall be paid by the appellant and respondent no.2 to the LRs of respondent no.1/ complainant within 45 days after receipt of copy of the order. The payment shall be made as per the order passed by the District Forum regarding the payment to various LRs.
36. The arguments in both these appeals were heard on 04.12.2013 and the orders were reserved. Now the orders be communicated to the parties.
37. The appeals could not be decided within the stipulated timeframe due to heavy pendency of court cases.
38. Copy of the order be placed in F.A. No.549 of 2009 (Late Smt. Baljit Kaur Vs Dr. Sameer Kaushal & Anr.).
(Inderjit Kaushik) Presiding Judicial Member (Vinod Kumar Gupta) Member December 18, 2013.
(Gurmeet S)