National Consumer Disputes Redressal
Kumari Mahua Daripa vs Dr. Aniruddha Ghorai on 15 July, 2015
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 269 OF 2007 (Against the Order dated 01/03/2007 in Complaint No. 70/2001 of the State Commission West Bengal) 1. KUMARI MAHUA DARIPA - ...........Appellant(s) Versus 1. DR. ANIRUDDHA GHORAI - ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER HON'BLE MR. SURESH CHANDRA, MEMBER For the Appellant : MR. S.N. MITTAL For the Respondent : MR. PRABIR BASU & MR. SANJAY KUMAR GHOSH Dated : 15 Jul 2015 ORDER PER SURESH CHANDRA, MEMBER The appellant has filed this appeal challenging the order dated 1.3.2007 passed by the West Bengal State Consumer Disputes Redressal Commission in SC Case No.70/O/2001 whereby the State Commission has dismissed the complaint filed by the appellant against the respondent who was OP before the State Commission.
2. The factual matrix of this case are that the complaint under section 17 of the Consumer Protection Act, 1986 was filed by the appellant against the respondent and 2 others. Subsequently, the names of other two OPs were deleted vide State Commission's order dated 3.8.2005. As per the averments in the complaint, the complainant fell down from the roof of her house on 23.5.2000 and suffered haemorrhage in her brain. She was admitted in CMRI, Kolkata and was released on 6.6.2000. On 11.6.2000, she was taken to her native village from Kolkata and on 14.6.2000 she got fever with temperature rising to 102O F. Thereupon, one Dr. Somnath Roy examined her on 15.6.2000 at her residence and he advised urine test and prescribed Cifram-500. It is alleged that she swallowed the tablet but could not tolerate its effect because she was allergic to such a medicine and she vomited and did not take any further tablet. On 16.6.2000, Dr. Roy again prescribed the same medicine after verifying her urine test report stating that this was the correct medicine for her. Along with Cifram-500, the doctor gave another medicine for vomiting. On the next day, i.e., 17.6.2000, the complainant developed rashes in her mouth and face and it was at this stage that she was taken to Dr. Aniruddha Ghorai, the respondent/OP who was a renowned doctor with MD qualification in medicine. It is stated by the complainant that respondent heard her history and saw the documents placed before him and issued a prescription to her. The grievance of the complainant is that the respondent did not mention in the prescription the history of the patient and also omitted to put therein the record showing means of communication, therapy modality, means of medical control of therapy, means of clinical trial, mechanism sample, etc. Thus the respondent was found to be negligent in this regard. It is further alleged by the complainant that it was a legal duty of the doctor to watch the condition of the patient but after prescribing the medicine Tarivid-200 twice a day, he did not care to watch or take stock of the reaction which it had on the patient. According to the allegation, the complainant took this medicine and as a result, she started feeling pain in her body and also there was no sign of her fever subsiding. So much so that her condition became so serious that she was crying with pain. Thereupon, she was shown to another Dr. Satyajit Ghosh who after examining the patient expressed surprise as to how such a serous antibiotic medicine could be prescribed. The said Dr. Ghosh gave Decadrone injection to save the life of the patient and advised her to go to Dr. Debasis Chakraborty for better treatment and advice. In view of this, it is the case of the complainant that the OP / respondent doctor was found to prescribe such a medicine without applying his mind most carelessly and as a result of which the complainant's condition became so serious and this act on the part of the OP doctor must be taken as an instance of utter negligence. It is also the allegation of the complainant that as a result of application of the medicine Tarivid-200, the complainant ultimately lost sight of her right eye.
3. The OP/respondent No.1 contested the case by filing a written version denying all the material allegations in the complaint and contending inter alia that although the complainant alleged that she suffered acute pain after taking Tarivid-200 on 18.6.2000, she did not turn up before him on any date after the said prescription was issued by him to her nor she reported any such effect or development ever to the OP doctor. It was further submitted by the OP that it is not proved that Tarivid-200 was the source of suffering of allergy by the patient as alleged. According to him, it is well established from different authorities on medicine that Tarivid-200 is a drug which cannot be responsible for causing Steve Jonson's Syndrome, nor Dr. Satyajit Ghosh came forward to say that taking of the said medicine caused allergy in the patient. It was further submitted by the OP doctor that it is the latest drug for reducing fever of a patient. But while prescribing this medicine, he also advised the patient to have some pathological tests so that he could see such test reports and decide if he would reconsider the prescription. However, it was submitted that the patient never appeared before him, not to talk of showing any such test report to him. According to the OP doctor, the allegations made in the complaint were wild and unfounded and the complaint had been filed with an ulterior motive of making wrongful gain and hence pleaded for dismissal of the complaint with cost.
4. After appraising the evidence adduced by the parties and hearing their oral submissions, the State Commission held that the allegations against the OP doctor have not been substantiated beyond all reasonable doubt. Consequently, the State Commission dismissed the complaint on contest.
5. There is a delay of 4 days in filing this appeal for which an application has been filed seeking its condonation. For the reasons stated in the application, the delay is condoned.
6. We have heard the arguments of learned Shri S.N. Mittal, Advocate for the appellant and Shri Prabir Basu, Advocate with Shri Sanjay Kumar Ghosh appearing for the respondent.
7. Learned counsel for the appellant has submitted that the State Commission has gravely erred and failed to appreciate the complaint appropriately in that in spite of the impugned order having been passed after long span of hearing, justice has not been given to the appellant/complainant who has lost her eyesight totally and has now become dependent on her father who is a small employee under the Govt. of India. He further submitted that whatever documents were available had been placed before the State Commission but so far as the expert opinion in the matter is concerned, the appellant cannot get such an opinion against another doctor and as such keeping the facts and circumstances of this case particularly the suffering of the appellant on account of the negligence on the part of the respondent/OP, the State Commission should have referred the matter for expert opinion. It was pleaded on behalf of the appellant that the State Commission should have examined as to how the misfortune took place from the judicial perspective based on the facts rather than getting into technicalities. In view of these aspects, learned counsel contended that the State Commission should have allowed the complaint rather than dismissing it and as such the impugned order is liable to be set aside and appeal allowed.
8. On the other hand, counsel for the respondent/OP has supported the impugned order. He submitted that the State Commission has considered the entire evidence and keeping in view that no case has been made out against the OP doctor, has rightly dismissed the complaint and as such the appeal deserves to be dismissed.
9. We have carefully considered the rival contentions and also perused the record. We may note that the main allegation levelled by the complainant/appellant is regarding her losing eyesight of right eye due to the prescription of the medicine Tarivid-200. Negligence has also been attributed on the part of the OP doctor in respect of non-mentioning of the history of the patient in the prescription. As regards the allegations of the complainant including those about the harmful effects of the medicine Tarivid-200, we find that the complainant had put forward 55 questions for being answered by the OP doctor. We have gone through the questions put forward and the replies given by the OP doctor to each one of them. We consider it fair and just to reproduce some of the relevant and important questions put forward by the complainant and their answers given by the OP doctor as under:-
"Q. No. 17 : It was in your knowledge then the same came to you by showing Prescription that on 15/06/2000, she had taken CIFRAN 500 and she expressed that she was Vomiting.
Ans : No, it was not in my knowledge that she took CIFRAN 500 on 15/06/2000 and no such Prescription was placed before me at the time of her visit to me.
Q. No.20 : You applied prescribed Antibiotic Medicine knowing the Patient is vomiting as being allergic and is it not your negligence?
Ans. : It was not in my knowledge that she was vomiting and she was allergic to the antibiotic, I prescribed therefore I was not negligent in my prescription.
Q. No.22 : By wrong application of medicine, have you not committed a breach of duty?
Ans. : No, she came to me for fever. She did not give any history of drug allergy. I examined her properly and thoroughly and applied proper medicine. No question of breach of duty arises.
Q. No.23 : Do you think that by such application of medicine she had been shifted to Hospital she saved life but damaged her eyes?
Ans. : No, I did not know that she had been shifted to any hospital as she did not contact me after her first visit.
Q. No.24 : 'TARVID 200' was used and 'Seven Johnson Syndrome' has damaged the eyes as per your prescription (AIR 1969 SC 128)?
Ans. : Steven Johnson Syndrome is not named as a side effect of OFLOXACILLIN (TARIVID-200) in Goodman Gillman, a text book of Pharmacology (10th Edition, Page No.1182). OFLOXACILLIN is also not named as a medicine causing Steven Johnson Syndrome in Clinical Pharmacology (D.R. Larence, 8th Edition, Page No : 276) and also in Harrisons Principle of Internal Medicine (16th Edition, Page No.318).
Q. No.26 : Have you not prescribed such by negligence instead of nay Anti Allergic Medicine?
Ans. : No, she was not known to be allergic to this medicine. Q. No.29 : Are you not assessing that the patient has suffered lot? Ans. : This is beyond my knowledge as I had the opportunity of seeing her only on one occasion on 17/06/2000. Q. No.4 : What is your opinion? Ans. : Miss. Daripa came to me on 17/06/2000 with fever for some duration. She did not give any history of drug-allergy neither she produced any other prescription. I thoroughly and carefully examined her in presence of her parents. I did not find any rash on her body and the systemic examination was normal. I prescribed her an Antibiotic and advised her to perform some Biochemical tests. I am totally unaware of the untoward reactions if any or at all caused by the medicines prescribed by me as she did not have the courtesy to contact me. Therefore, I saw her only one occasion and she did not pay a second visit to me. I had discharged my duty carefully and sincerely."
10. It is not stated as to whether any cross-examination of the OP doctor was done with reference to his answers to the questionnaire put forward by the complainant. However, in her evidence of affidavit filed later, it has been stated by the complainant in para 8 that:-
"8. The negligence of the opposite party can be worked out.
The opposite party Dr. Ghorai did not record anything in the presumption (prescription ?) when the petitioner came to him on 17th June 2000.
Only on the instant 18th June 2000, it is clear that the petitioner took admission in CMRI with Stenven Jonson what leads to the facts.
The negligence cannot be tagged with wilful act. Negligence may be an accident. The fault of the opposite party that he should not treated the patient if he found any defect. The doctor has not noted details as per law in the prescription. Is it not clear negligent? Punishment relates to negligent. It cannot be equated with wilful or motive."
11. It would be seen from the above that the OP doctor has specifically denied on oath, based on the medical literature, the alleged adverse effects of medicine Tarivid-200 on the eyes. No evidence has been placed by the complainant before the State Commission rebutting the statement of the OP doctor. The State Commission has not only examined the question of expert opinion in support of the allegations made by the complainant/appellant but has also looked into the allegations with reference to the doctrine of res ipsa loquitur. While finding no substance in the allegations made by the complainant and hence dismissing her complaint, the State Commission has observed thus:-
"The main question falling for determination, therefore, is whether the complainant lost her sight of the right eye due to any harmful effect of the medicine Tarivid-200 as alleged. It should be borne in mind that pleading is not the proof and inference should not take the place of reasoning. True, there might be some coincidence. It might be the case that the complainant after taking the medicine Tarivid-200 suffered some pain and in the long run she might have lost her eye sight as alleged. But in order to pinpoint the responsibility we are required to ascertain whether there has been evidence of cogent nature to show that the application of the medicine Tarivid-200 on this patient caused such a blunder in her life. In order to do that, the best evidence would have been an expert's opinion. Unless a medical expert on the subject gives his impartial finding that the effect of this medicines on a human being like the complainant is the loss of eye sight, we cannot by our inference or wishful thinking draw such an extreme conclusion holding the doctor, who is otherwise a qualified one, guilty of negligence in the matter of prescribing the medicines. The same reasoning will apply to the contentions of the complainant as regards the medicine Lacto Bacilus Sprogens as discussed above. Rather, these medicines, as per the dictates of medical science, are conducive to the better absorption of any drug by the patient. In the absence of clear-cut, cogent and convincing evidence it will be dangerous to arrive at any such rash conclusion, because if such cloud is cast on the reputation of the doctor as a result of our own finding which is not based upon evidence of unerring nature, then nothing could be more glaring violation of the principle of natural justice.
Although the complainant has repeatedly alleged that the entire responsibility for her misfortune was the negligence of this doctor, she has failed to adduce any evidence from an expert to the effect that administration of such a drug invariably causes such effect in the physique of a person like the complainant. The complainant's contention that here no expert's opinion is required since the doctrine of res ipsa loquitur should be in operation is not worth being relied upon. She does not explain how in this case it can be said that the facts themselves prove her charges. Neither she has produced any authorities like medical treatise or text books, etc. in support of her contention. The complainant has also alleged that omission of the doctor to mention certain particulars in the prescription also signifies his negligence. But we are not impressed by such argument at all. May be, the doctor has not put some such particulars, but such omission does not appear to have any bearing upon the question of the patient's suffering. Therefore, it is not understood why the complainant has been so emphatic in pointing to this aspect of the matter again and again."
12. We agree with the view taken by the State Commission. We may also note that the medical report dated 5.11.2001 given by the L.V. Prasad Eye Institute, Hyderabad in regard to the damage to the eyes suffered by the complainant simply mentions about "a history of drug reaction in May, 2000 following which she had decreased vision in both eyes". The report, however, refrains from specifying the particular drug which would have such an adverse reaction on the eyes so as to know as to whether the alleged drug reaction was caused on account of Tarivid-200 as alleged by the complainant. We may, however, note that the respondent/OP has referred to the report of L.V. Prasad Eye Institute, Hyderabad and discussed the effect of different drugs at great length in his reply to the appeal before us. Unfortunately for the appellant nothing has been placed before us to contradict the specific submissions made by the respondent/OP against the allegations. In this context, following observations of the Hon'ble Supreme Court in the case of Jacob Mathew vs State of Punjab & Anr. [2005 CTJ 1085 (SC) (CP) are quite relevant:-
"(1) Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. The definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P. Singh), referred to hereinabove, holds good. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: "duty", "breach" and "resulting damage".
(2) Negligence in the context of the medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed".
13. There can be no doubt that every complainant has to succeed on the strength of his/her own case and in the case of medical negligence, specific act of negligence has to be alleged and then proved and it also has to be shown by the complainant as to how that amounts to negligence. The complainant has failed to discharge this burden in this case. So far as the applicability of the principle of res ipsa loquitur in the present case is concerned, we may note that as per her own admission, the appellant suffered haemorrhage in her brain as a result of her falling down from the roof of her house. Even before she came to the respondent/OP doctor, she had been treated at three other places during the course of which certain medicines were prescribed and administered to her including Cifram-500 which, as per the averments had some adverse side effects on her. No doubt, the eyesight of the appellant/complainant got adversely affected following her ailment/treatment but unless some nexus between the treatment suggested by the respondent/OP and the adverse impact on her eyesight is established, the principle of res ipsa loquitur cannot be applied. It would be an entirely different case if respondent/OP was the only doctor treating her. In that case also, the impact of brain haemorrhage on the eyesight would require closer scrutiny from the medical point of view. But these are all hypothetical questions. For the present case, we are of the considered view that the State Commission was right in not applying the principle of res ipsa loquitur. We also do not agree with the contention made on behalf of the appellant to the effect that the State Commission should have referred the matter for expert opinion because unless there is sufficient justification to do so or the circumstances are such which necessitate such an action, it would not be appropriate for a court to somehow create evidence. In the present case, the facts and circumstances would not justify such a suo moto action on the part of the State Commission.
14. In view of the above discussion, we are of the considered view that the view taken by the State Commission is fair and just considering the evidence adduced by the parties and keeping in view the facts and circumstances of the case. Thus, we do not find any reason to interfere with the impugned order and consequently this appeal is dismissed. There shall be no order as to costs.
......................J V.B. GUPTA PRESIDING MEMBER ...................... SURESH CHANDRA MEMBER