National Consumer Disputes Redressal
Abha Rani Srivastava vs National Insurance Co. Ltd. & Anr. on 2 September, 2016
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 1057 OF 2010 (Against the Order dated 22/12/2009 in Appeal No. 1472/2006 of the State Commission Uttar Pradesh) 1. ABHA RANI SRIVASTAVA R/o. 22/30M.G. Marg, Civil Lines Allahabad Uttar Pradesh ...........Petitioner(s) Versus 1. NATIONAL INSURANCE CO. LTD. & ANR. Through its Regional Office, Jeevan Bhawan, Phase - II, Nawal Kishore Road Lucknow Uttar Pradesh 2. DR. S.K. BHATTACHARYA Indian Medical Hall, 5/A, S.P. Marg Allahabad Uttar Pradesh ...........Respondent(s)
BEFORE: HON'BLE MRS. M. SHREESHA,PRESIDING MEMBER
For the Petitioner : For the Petitioner : Mr. A.M. Lal, Advocate For the Respondent : For the Respondents: Mr. Atishay K. Prasad, Advocate for
Dr. Sushil Kumar Gupta,Advocate
for R-1.
NEMO for R-2.
Dated : 02 Sep 2016 ORDER
ORDER
M. SHREESHA, PRESIDING MEMBER Challenge in this Revision Petition, under Section 21(b) of the Consumer Protection Act, 1986 (for short "the Act"), is to order dated 22.12.2009 in Appeal No. 1472 of 2006 passed by the State Consumer Disputes Redressal Commission, Uttar Pradesh, Lucknow (for short "the State Commission"). By the impugned order, the State Commission allowed the Appeal preferred by the Insurance Company and set aside the order of the District Forum, thereby, dismissing the Complaint.
2. The brief facts as set out in the Complaint are that the Complainant approached the first Opposite Party Doctor on 29.6.2001 with complaint of itching problem in her left leg. It is averred that the Doctor examined her and prescribed four medicines and asked her to purchase them from the Medical Store in his clinic. It was also advised that the Complainant should come for review after getting her blood test report. The Applicant got her blood test on 1.7.2001, which showed the blood sugar level as normal. It is stated that after taking the medicines for four days, as prescribed, her condition became worse and the small boils of her left toe got enlarged and spread up to the knee with severe burning sensation and full of water. On 2.7.2001, on the 4th day, the Complainant again approached the first Opposite Party Doctor who examined her and added more medicines and told her to repeat the four previous medicines also. These were also purchased from his Medical Store. The Complainant pleaded that after using all the six medicines, her condition became more deteriorated and she was unable to bear the pain and she approached the Doctor again on 11.7.2001. Four more medicines were added and the Complainant was advised to take all the 10 medicines.
3. It is averred that after 24 hours, the condition of the Complainant became so deteriorated that water was coming from the boils of her leg and there was burning sensation and she had become unconscious. On 12.7.2001, three more medicines were added apart from repeating the earlier medicines and in all, it is stated that 13 medicines were used. The Complainant had become unconscious, with unbearable pain and the leg felt like it was a case of burns. Thereafter, the Complainant took her to the Skin Specialist, Dr. A.K. Bajaj on 19.7.2001, who prescribed four medicines and injections and reviewed her again on 23.7.2001, by which time, the condition remained the same. Four medicines were prescribed with powerful injection SUPASEF of 1.5 gm. in the morning and evening twice for four more days. On 27.7.2001, the medicines were continued upto 30.7.2001. Dr. Bajaj had prescribed one more Injection alongwith the medicines and reviewed her on 2.8.2001, on which date, the Complainant's blisters had completely dried, but the skin had darkened. Water was still coming out from the site of infection. The patient was advised to undergo dressings and was referred to Dr. D.R. Singh. On 2.8.2001, the Complainant immediately went to Raj Nursing Home and approached Dr. D.R. Singh, who found that all the tissues were dead and stated that there was very little chance of recovery and that the leg had to be amputated. Subsequently he took the advice of Dr. Tripathi on 4.8.2001, who advised the patient that her leg can be saved and that he would be discharged within 48 hours after being admitted. On 6.8.2001, Dr. Ashok Tripathi performed the operation of the leg and was discharged on 8.8.2001. Dr. Ashok Tripathi applied medicines and performed dressing on his own; transfused one bottle of blood on 10.10.2001 and continued dressing and application of medicines till 4.8.2002. Even thereafter, it is averred by the Complainant that she continuously visited the said doctor and was taking his advice. Though the condition of the leg improved, there is permanent disability, the skin turned black and there is constant itching and pain. An amount of ₹50,000/- was spent on medicines and the Complainant submits that it is only on account of negligence of the first Opposite Party that she had to suffer permanent disability in her leg with physical and mental agony, for which, she seeks compensation of ₹4,50,000/-.
4. The first Opposite Party filed his written version admitting that the Complainant had approached him on 29.6.2001 with the Complaint of simple itching on her feet and legs for which he had prescribed potassium permanganate as an antiseptic and caladryl lotion as a soothner for external use on the affected part of the body and two anti-allergic tablets namely Alerid and Polaramine Repetab. These medicines were prescribed after four days and the Complainant once again approached on 1.7.2001 and was advised for blood sugar test. On 2.7.2001, the Doctor repeated medicines and advised the patient to take Glucon-D orally and Zevit as she complained of weakness. On 11.7.2001, the patient was advised Durabolin Injection and Nebulid tablet. On 12.7.2001, as the BP was 190/90, Antenol-50 and Gravol was advised. Medicines prescribed were mild in nature and could not have caused any damage to the patient's leg. The patient was supposed to come for review on 15.7.2001 as medicines were prescribed for four more days. It is averred that the patient never turned up after 15.7.2001. It is also denied that the medicines were purchased from his Clinic. It is pleaded that Durabolin Injection between 50 mg to 100 mg may be given after one to four weeks, when in the present case the Opposite Party had prescribed 25 mg. every alternate days which is well within the prescribed limit. It is stated that there is no requirement of giving strong antibiotics with Durabolin Injection as there was no infection in the Complainant's leg. The patient was cured of her ailment of itching for which she had first consulted first Opposite Party. It is stated that the prescription of Dr. A.K. Bajaj has not stated as to which part of the body of the Complainant is affected by Cellulitis, there was no mention of symptoms of swelling, fever, pain, restrictions of movement etc. The discharge summary of Arvind Surgical Clinic where the Complainant was treated by Dr. Ashok Tripathi, states that the Cellulitis affecting the Complainant was only 15 days old. Cellulitis is a disease totally different from the itching, which the patient had initially complained of. She was under the treatment of Dr. A.K. Bajaj, who, despite heavy antibiotics, failed to control the disease and therefore, the Complainant approached Dr. A.K. Tripathi, which shows that the Complainant is in the habit of changing the doctors. It is averred that during her treatment with first Opposite Party Doctor i.e. between 29.6.2001 and 12.7.2001, no antibiotics were prescribed as the patient was not suffering from any infection and hence, there is no deficiency or negligence on his behalf.
5. OP-2/Insurance Company in their written version before the District Forum admitted issuance of Professional Indemnity Policy for the period 10.8.2000 to 9.8.2001 and only contended that there was no negligence on behalf of the insured Doctor in treating the patient conservatively. The amount insured is not stated.
6. The District Forum, based on the evidence adduced, allowed the Complaint directing the second Opposite Party/Insurance Company to pay to the Claimant an amount of ₹4,50,000/- with interest at 12% p.a. together with costs of ₹2,000/-.
7. Aggrieved by the said Order, the Insurance Company preferred an Appeal before the State Commission. The State Commission holding that there is nothing on record to establish that the medicines/ointment or lotions prescribed by Dr. S.K. Bhattacharyya had led to the development of Cellulitis and also there is no expert opinion to state that the medicines prescribed by the said Doctor had resulted in an infection or allergy leading to the disability, allowed the Appeal and set aside the order of the District Forum.
8. Dis-satisfied with this order, Complainant preferred this Revision Petition.
9. The learned counsel for the Revision Petitioner submitted that the Insurance Company had changed the policy and filed a different policy before the lower Fora, as the number before the Fora was 451105/8700048 whereas the Policy which was filed in the Appeal was numbered 2000/8700048. It is contended that new conditions were added in this Policy in order to avoid full payment to the Claimant. He submitted that the finding of the State Commission that the medicines prescribed by the treating doctor did not lead to Cellulites was wrong as on the very first day itself, Dr. A.K. Bajaj, diagnosed the disease as Cellulites. An expert opinion is not required as the treatment of Dr. A.K. Bajaj and also of the Surgeon Dr. A.K. Tripathi shows that Cellulites was formed 15 days ago i.e. when she was under the treatment of the first Opposite Party Doctor. Doctor had wrongly used Durabolin Injection and did not diagnose the infection as Cellulites which led to immense physical suffering and disability.
10. Learned counsel for the Respondent/Insurance Company submitted that there is no evidence on record that the left leg suffered from any deformity or that the Doctor had acted against the norms of Standard Medical Practice. He further contended that the Policy in question is one and the same and that it covers only ₹2 lakhs of liability for any one accident and that the District Forum had wrongly fastened ₹4½ lakhs liability on them.
11. Notice was served on the second Respondent, who is the treating doctor and he was represented by a Counsel before this Commission on 11th August, 2010 till 11th July, 2011 subsequent to which there was no representation. Vide order dated 10.1.2012, this Commission has recorded that none was present on behalf of the second Respondent though acknowledgement of the notice sent on 13.10.2012 has been received and the matter was adjourned to 4.5.2012 with a direction for issuance of fresh notice to the second Respondent/doctor but still there was no representation.
12. It is an admitted fact that the Complainant had first approached Opposite Party No. 1 Doctor on 29.6.2001 and the prescription as on that shows Pot. Permanganate, Caladryl, Alird tablet 4, one tablet daily and Polaro mine Rep tablets 4, one tablet daily at bed time was prescribed. The prescription clearly states that the patient was suffering from scratching, i.e. itching sensation in both legs and feet for the last two weeks. On 2.7.2001, the Complainant had undergone the tests as advised by the Doctor and was given Glucon D and Zevit Cap. The prescription dated 11.7.2001 and 12.7.2001 reads as follows:
" 11.7.2001 Rpt. All dt. 29.6.2001 Aivit cap- one daily Durabolin (25 m gm.) amp - 4 One 1/m alt. day Nebulid (for mgn) tab-12 one tab. B.d.
Sd/-
11.7.2001
12.7.20 190/90
Durabolin is given Sd/-
Rpt. All dt. 11.7.2001
Atenol 50 mgn. Tab. One tab. Daily
Gravol tab. 8 one tab. B.d. Sd/- 12.7.2001
13. It is observed from the afore-mentioned prescription that from 29.6.2001 till 12.7.2001 admittedly no antibiotics were prescribed. It is the case of the treating doctor in his written version before the District Forum that no antibiotics were prescribed because no infection was seen. Admittedly the patient had approached him with the history of itching and blisters in both legs and feet for more than two weeks prior to 29.6.2001 and the problem had continued till 12.7.2001 but the doctor did not choose to administer any antibiotics as it is his case that there was no infection.
14. In Halsbury 'Law of England', the degree of skill and care required by a medical practitioner is stated, as follows:
"35. The practitioner must bring to his task a reasonable degree of skill and knowledge, and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence, judged in the light of the particular circumstances of each case, is what the law requires, and a person is not liable in negligence because someone else of greater skill and knowledge would have prescribed different treatment or operated in a different way; nor is he guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art, even though a body of adverse opinion also existed among medical men".
It has to be seen whether this degree of care was administered by Opposite Party, or not.
15. It is pertinent to note that the prescription by the second treating Doctor, Dr. A.K. Bajaj, is dated 19.7.2001, i.e. only 7 days after the last date, on which, the Complainant was treated by first Opposite Party Doctor. In this prescription the Doctor had diagnosed that the patient was suffering from Cellulitis. The prescription reads as under:
" Dr. A.K. Bajaj 3/6 Panna Lal Road, M.D. FICAI Allahabad. Tel.6009561 Ex. Prof. & Head Skin & V.D. M.L.N. Medical College, Allahabad Smt. Abha Cellulitis Rx. Tab. Cetil Soony -Twice Cap 2-B-once Tab. Dyrect - Thrice x4 days Motrogyl -P lotion for local application Inj. Garamycin 60 mg. 1 amp 9/M -twice a day X 4 days Monday- 23rd July Evening 6 p.m. come 10-15 min. Sd/- Priority Bajaj Sd/- 19.7.2001".
16. The Review was advised for 23rd July, 2001. On 23rd July, 2001, a series of tests HB, TLC, DLC & ESR were advised and the Complainant was prescribed injection Supacef 1.5 gm. 9/M twice a day, Tab. Azilide, 500 mg. 1 Tab. Daily, Cap. Becelac, 1 cap. Daily x4 days, Tab. Rolosol-twice and Metrogyl - P lotion for local application. The prescription of Dr. A.K. Bajaj shows that the patient was suffering from Cellulitis/Necrotising Fascitis. Anti-biotics in an injection form were prescribed. On 19.7.2001 onwards, Dr. A.K. Bajaj has also advised injection Supacef and Injection Amitax 500 mg. twice a day. He had also rightly referred the patient to Dr. D.R. Singh. Thereafter, the Complainant visited Raj Nursing Home on 2.8.2001 for admission for Excision of dead tissues and management. She was advised cap. Cefepran, Tab Rosol and Dryen I magsulf. She was once again referred to Dr. Ashok Tripathi at Arvind Surgical Clinic, who diagnosed patchy gangrene below knee upto ankle and advised admission, for which, the patient was unwilling and thereafter as seen from the treatment record of Dr. Ashok Tripathi, the Complainant was operated upon on 6.8.2001 for Fasciotomy because of Cellulitis of the knee and patchy cut gangrene, the muscles layer sloughing. Subsequently, the Complainant was under the treatment of Dr. Ashok Tripathi and visited him on 16.8.2001, 20.8.2001, 1.9.2001, 12.11.2001, 17.12.2001, 30.1.2002, 28.2.2002 and 16.3.2003 and it is seen from the prescriptions that continuous anti-biotics were administered and dressings were done and in all the prescriptions it is stated that the patient was being treated for Fue Necrotising Fascitis, a potent skin infection.
17. There is force in the contention of the learned counsel for the Revision Petitioner/Complainant that the first Opposite Party Doctor had prescribed Durabolin with every alternate day without advising any protein supplement, which is contrary to the Medical Literature; that no antibiotic was given during the treatment period despite deterioration in the condition of the patient.
18. It is pertinent to note that Dr. A.K. Bajaj in his prescription dated 19.7.2001, one week subsequent to the prescription of first Opposite Party Doctor, diagnosed the infection as Cellulitis and started anti-biotic treatment. The facts remains that the condition of the patient only deteriorated from 29.6.2001 to 12.7.2001, but no antibiotics were administered. The second Doctor, Dr. A.K. Bajaj, who also treated the patient conservatively, diagnosed the infection as Cellulitis one week thereafter and started administration of anti-biotics.
19. For all the afore-mentioned reasons, it is noted that the first Opposite Party Doctor was negligent in his treatment of the patient.
20. It is seen from the record that the District Forum had made only the Insurance Company liable, but both the Insurance Company and the Doctor preferred Appeals 1472/2006 and 1390 of 2006 respectively. The State Commission vide its order dated 30.7.2014 dismissed the Appeal preferred by the Doctor, i.e. F.A. No. 1390 of 2006 on the ground that the order of the District Forum had already been set aside in Appeal No. 1472 of 2006 on 22.12.2009, challenged by the Insurance Company.
21. The District Forum, while observing that the Doctor was negligent, directed the Insurance Company to pay ₹4,50,000/- towards the claim amount. Having concluded that there is negligence on behalf of the Doctor, the extent of liability of the Insurance Company, who is the first Respondent before us, has to be examined. The learned counsel submitted that the Policy covers only one accident upto ₹2 lakhs and for one year upto ₹5 lakhs. It was vehemently contended by the Petitioner herein that the policy which was filed before lower Fora is different from what is filed here and that the policy numbers vary namely 2000/8700048 is the policy number filed in the Appeal and 451105/8700048 before the trial Court and that a fresh condition was added in the new policy in order to avoid full payment to the Claimant. In view of the submission, the lower Fora record was summoned. A brief perusal of the District Forum record shows that though the Insurance Company has not pleaded the extent of coverage in their written version, has filed the cover note and fourth copy of the policy, marked as Annexure-I, wherein cheque No. 0003978 for the premium of ₹525/- has been paid and the period of coverage is 10.8.2000 to 9.8.2001. We find force in the contention of the counsel for the Insurance Company that the number 2000 pertains to the year 2000 and that the policy number 451105/8700048 pertains to the same policy. The cheque number, date, the period of coverage and the number 8700048 tally. A reading of the State Commission record also shows that the same cover note and fourth copy of the policy have been filed. In both the Fora below, the condition of coverage up to ₹2 lakhs for any one accident is reflected in the fourth copy, which copy has also been filed in this Commission.
22. The District Forum, while holding the doctor to be negligent in his services fixed the liability on the Insurance Company alone for an amount of ₹4,50,000/-. The entire amount prayed for has been awarded by the District Forum on the basis that the Complainant had physically suffered and had become disabled. The Complainant relies on the definition of permanent disability as stated in the Workmen's Compensation Act, 1923. A brief perusal of the record does not show any documentary evidence establishing the extent of permanent physical disability, but however, the fact remains that the Complainant suffered severe infection and partial disability which necessitated continuous and frequent visits to the doctor to save the leg from amputation, for which an amount of ₹2 lakhs, towards medical expenses, physical suffering and compensation, would meet the ends of justice. It is submitted that an amount of ₹50,000/-, was deposited before the District Forum, which was withdrawn by the Complainant. After adjusting this amount, the balance amount is to be paid by the first Respondent together with interest at 9% p.a. from the date of filing of the Complaint till the date of realisation, in addition to damages and litigation expenses of ₹25,000/- each to be paid by the Insurance Company and the 2nd Respondent, the treating doctor.
23. In the result, this Revision Petition is allowed and the order of the State Commission is set aside with the afore-mentioned directions. Time for compliance for payment of the said amount is four weeks from the date of receipt of this order, failing which, the amount would attract interest at 12% p.a. from the date of filing of the Complaint.
...................... M. SHREESHA PRESIDING MEMBER