State Consumer Disputes Redressal Commission
Dr.Sau.Nilima W/O Vasantrao Ghunage vs Sau.Sunita W/O Niwasrao Musale on 7 October, 2015
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION MAHARASHTRA NAGPUR CIRCUIT BENCH NAGPUR First Appeal No. A/08/771 (Arisen out of Order Dated 17/09/2008 in Case No. cc/21/2006 of District Washim) 1. Dr.Sau.Nilima W/O Vasantrao Ghunage Opposite Main Post Office,Washim, ...........Appellant(s) Versus 1. Sau.Sunita W/O Niwasrao Musale At.Bramha Po.Pimpalgaon Tq. & Distt.Washim ...........Respondent(s) BEFORE: HON'BLE MR. B.A.SHAIKH PRESIDING MEMBER HON'BLE MRS. Jayshree Yengal MEMBER For the Appellant: Adv. Smt A Deshpande For the Respondent: Adv.Smt S K Dhore ORDER (Passed on 07.10.2015) Per Mr B A Shaikh, Hon'ble B A Shaikh 1.
This appeal is preferred by the original opposite party (for short O.P.) against the order dtd.17.09.2008, passed in consumer complaint No. 21/2006 by District Consumer Forum, Washim by which the complaint has been partly allowed.
2. The case of the original complainant / respondent herein as set out in the complaint is as under.
The complainant was suffering from fever and ulcer in her mouth and therefore she went to the O.P., who is medical practitioner, for treatment on 22.08.2005. On that date the O.P. examined her and suspected that she was suffering from Typhoid. The O.P. prescribed her medicine and ointment. However, the complainant got no relief after taking the medicine and therefore, she again went to O.P. on 23.08.2005. Her urine & blood were examined by technician as per advice of the O.P. On that date the O.P. administered saline and injection to her and gave some medicines to her. On next date i.e. 24.08.2005, the complainant felt burning sensation in her body and spots appeared on her whole body. She, therefore, contacted Dr. Ashok Bang, who on her examination, said that she suffered drug reaction. He referred her to Dhoot Hospital of Aurangabad. When she went to said hospital, she was again referred to Mahatma Gandhi Medical Centre & Research Institution (for short MGM Hospital). On 29.08.2005, she was admitted in that hospital, where diagnosis was made as "Toxic Epidermal Necrolysis" (for short TEN). It was told her by the doctor of that hospital that due to wrong diagnosis of her ailment wrong medicines were given to her and therefore, she has suffered drug reaction. She was treated in that hospital from 29.08.2005 to 27.09.2005. She was then discharged. However, her condition was deteriorated and therefore, she was again admitted in the said hospital. She got treatment in that hospital for 10 to 12 days. Due to drug reaction, her whole skin sustained injuries and her 90% skin became useless. Moreover, eye sight of her both eyes was also lost slowly. She incurred expenses of Rs.2.50 Lacs for her whole treatment but she got no relief. Therefore, she filed consumer complaint and claimed compensation of Rs.8.00 Lacs with interest and cost of Rs.10,000/- from the O.P.
3. The O.P. filed written version / reply before the Forum and denied allegations made against her by the complainant. However, the O.P. admitted that on 22.08.2005 the complainant came to her with complaint of fever and on her examination, she prescribed medicine to her. It is denied that due to medicine prescribed by her, the complainant sustained reaction. She denied that on 23.08.2005 she had administered some medicines and also prescribed some medicines to her. The complainant suppressed many material facts about previous treatment taken by her for other ailments. The MGM Hospital of Aurangabad also prescribed same medicines, which was prescribed by her to the complainant. On the complaint of the complainant, Police referred the matter to the MGM Hospital, Aurangabad for opinion. Committee of four Members was appointed for that purpose and it gave opinion that there was no negligence on the part of the O.P. Therefore, it was prayed by the O.P. that complaint may be dismissed with cost.
4. The Forum below after hearing both parties and considering evidence brought on record, passed the impugned order and thereby partly allowed the complaint and directed the O.P. to pay to the complainant compensation of Rs.3.00 Lacs, who shall deposit the same with the Nationalised Bank for 10 years with monthly benefits and also to pay her compensation of Rs.1.00 Lac towards expenses incurred by her for treatment. The Forum below also directed that the O.P. shall comply with that order within 30 days of the receipt of that order and in case of default, the said amount will carry interest @ 9% p.a. till realisation of that amount.
5. As observed above, the original O.P. has preferred this appeal against the aforesaid order. We have heard the learned advocates of both parties and perused the copies of original record of the complaint filed and Written Notes of Arguments filed by the learned advocates of both parties.
6. The sum & substance and submission of learned advocate of the appellant / O.P. is that the Forum did not consider properly the expert opinion and evidence brought on record and erroneously held the appellant responsible for payment of amount as per impugned order. He relied upon the observations made in the following cases.
i. Jacob Mathew Vs. State of Punjab & Anr., 2005(3) Crimes 63 (SC).
In that case Hon'ble Supreme Court observed that a simple lack of care, an error of judgement or an accident, is not proof of negligence on the part of 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 of a better alternative course or method of treatment was also available or simply because of more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed.
State of Punjab Vs. Shiv Ram & Ors., 2005(5) ALL MR (SC) 1090.
In that case Hon'ble Supreme Court observed that if the couple opts for bearing the child it ceases to be an unwanted child. Action for claiming compensation arises on account of proved negligence of surgeon and not on account of child birth. Decree awarding damages was totally uncalled for and had no foundation in law and, therefore, has to be set aside.
iii. Smt Vinitha Shok Vs. Lakshmi Hospital & Ors., 2001 SAR (Civil) 875.
In that case Hon'ble Supreme Court observed that a doctor is not 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. Putting it the other way, a doctor is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion that takes a contrary view.
iv. Achutrao Haribhau Khodwa Vs. State of Maharashtra, 1996 DGLS (Soft) 426.
In that case Hon'ble Supreme Court observed that in a case where doctor acts carelessly and in a manner not expected of a medical practitioner, then an action in torts would be maintainable and the State Government will be liable for the negligence of the doctors in the Government hospital, to pay damages.
Therefore, relying on the aforesaid decisions, the learned advocate of the appellant submitted that the appeal may be allowed and impugned order may be set aside.
7. On the other hand, learned advocate of the respondent / complainant supported impugned order and submitted that there is no merit in the appeal and it may be dismissed. She relied upon the observations made in the following cases.
i. Vinubhat J Patel & Anr. Vs. Thakkar Kalpesh Kumar G & Ors. 2012(2) CPR 480 (NC).
In that case Hon'ble National Commission observed that treatment without proper diagnosis is medical negligence.
Dr S K Jain Vs. Sahveer Singh, 2012(3) CPR 179 (NC).
In that case Hon'ble National Commission observed that there was medical negligence on part of petitioner as he administered tetracycline injection despite knowing the fact that earlier medicines given by him to respondent did not suit him and had caused drug reaction. Tetracycline injection was given without doing any reaction test which clearly shows that petitioner was negligent. Respondent had to take the treatment in another hospital and suffered for a number of days which must have entailed huge expenses. Compensation awarded is on conservative side. Revision petition dismissed.
iii. Santokba Durlabhji Memorial Hospital & Medical Research Institute & Anr. Vs. Bhanwar Lal, 2012(2) CPR 158.
In that case the learned Rajasthan State Consumer Commission, Jaipur held that if proper treatment could have been given after correct diagnosis at initial stage complainant would not have suffered 40% disability. Complainant was of age of 25 years when first admitted in appellant hospital. At this prime age he had to suffer 40% disability causing great mental agony and loss in future income prospects. Apart from getting Rs.57,542 for medicines complainant shall also be entitled for Rs.3,00,000/- for compensation, mental agony and other expenses with 9% interest from date of filing complaint.
Arangamurugan ( Dr) Vs. V S Sakthivel, ,2013(2) CPR 40 (T.N.) In that case the learned Tamilnadu State Consumer Commission observed that doctor must undertake thorough investigation if no relief is seen from initial treatment.
8. We have thus considered the evidence brought on record, vis a vis submission made by both parties.
It is proved by the complainant that she was simply suffering from fever and ulcer in mouth and she has some gynaec problem and she had gone for treatment of the same to the appellant on 22.08.2008. The complainant / respondent was then examined by the appellant and prescription was given to her by the appellant. Though she had taken the said medicine, she got no relief. Therefore, on 23.08.2005 the complainant again approached to the appellant / O.P. and at that time the appellant got tested her blood and urine and administered some medicines to her. Though the appellant denied that the complainant had come to her on 23.08.2005, we find from the evidence on record that the complainant had approached to O.P. / appellant on 23.08.2005 and at that time, she was administered medicine by O.P. / appellant.
10. It is not disputed that thereafter there was reaction of those drugs to the complainant. Therefore, she approached to another doctor namely Bang, who on her examination, diagnosed that there was a drug reaction. He issued letter dtd.25.08.2005 to that effect. As per that letter, Dr. Bang referred the complainant to skin specialist for treatment.
11. It is also proved from the document on record filed by the complainant that though she had gone from one hospital to another hospital at Aurangabad, she got no relief despite of treatment taken by her for long time. On the contrary, various spots developed on her whole body and she lost her eye sight also. She therefore, lodged report with the Police against O.P. about medical negligence on the part of the O.P. / appellant. The Police referred the matter to expert committee, which submitted its report as follows.
" Interpretation The patient for her febrile illness was prescribed drugs by the private doctor in the form of analgesic antipyretic (nimesulide + paracetamol) and antibiotic (tetracycline). On third day on wards patient develop unfortunate drug reactions in the form of toxic epidermal necrolysis. On the first observation of such reaction drug rashes / lesions the said drugs were omitted and treatment was given. The case was subsequently seen by consultants and referred to MGM for further management. Patient was duly treated and on suitable recovery discharged with advice to have consultation of ophthalmologist, physician, dermatologist as deemed necessary.
TEN is idiosyncratic unpredictable reaction. This term describes an uncharacteristic response, not related to pharmacological action of the drug, not predictable from animal experiments, and not mediated by an immunological mechanism. The cause is often unknown. It is qualitatively abnormal unexpected response.
Unless the patient has had the experience of the said drug reaction or any kind of such reaction to said drugs it would be difficult for any doctor to define such reactions before the consumption of drug by patient."
Toxic Epidermal Necrolysis "Toxic epidermal necrolysis (TEN) is severe, episodic acute mucocutanious intolerance reactions most often elicited by drugs and less so by infections. In TEN, the rash coalesces to widespread erythema, necrosis, and bullous detachment of the epidermis resembling scalding and positive Nikolsky's sign. Constitutional signs include fever, arthralgias, weakness, and, prostration. Internal organ involvement is severe in TEN, most often affecting the respiratory and gastroinfestinal tracts, hepatitis have been reported. Toxicity, dehydration, and water and electrolyte imbalance, may proceed to hemodynamic shock. Acute tubular necrosis, membranous glomerulonephritis, and renal failure have been described.
Skin lesions heals with transitory hyper - and / or hypopigmentation. Scarring does not usually appear expect in extensive cases with secondary infection, where contractures, alopecia, and anonychia may develop. Scarring is a characteristic and frequent late complication of mucosal lesions, which is most serious in the eyes symblepharon, synechiae, entropion and ectropion, trichiasis, corneal opacities or scarring, and panes formation potentially result in blindness. Lesions of the lips and oral mucosa usually resolve without sequelae, but esophageal, bronchial, vaginal, urethral, and anal strictures develop at time.
Drugs are clearly the leading causative factor 80 to 95 percent of patients with TEN, and only a minority of cases appears to be linked to infection, vaccination, or GVHD.
Drug reactions may be predictable (type A) or unpredictable (type B), Type C reactions include those associated with prolonged therapy (e.g. analgesic nephropathy), and type D consists of delayed reaction (e.g. carcinogenesis and teratogenicity).
TEN is idiosyncratic unpredictable reaction. This term describes an uncharacteristic response, not related to pharmacological action of the drug, not predictable from animal experiments, and not mediated by an immunological mechanism. The cause is often unknown; it is qualitatively abnormal unexpected response."
12. Thus it is proved from the aforesaid expert opinion that the complainant / respondent herein received drug reactions. Moreover, only said inference can be drawn since as soon as the drugs were administered by the O.P. to the complainant, she received said reaction on her whole body and on her both eyes. No other inference can be drawn from the facts & circumstances of the present case.
13. The defence of the O.P. that the complainant might have taken some medicines prior to her coming to her O.P., cannot be accepted since there is no evidence to that effect.
14. In our view, this is a case of res epsa loquitur i.e. the things speak for themselves. Therefore, the Forum has rightly held the appellant / O.P. responsible to pay the amount of Rs.3.00 Lacs towards compensation to the complainant.
The aforesaid decisions relied upon by the learned advocate of the appellant / O.P. are not applicable to the facts & circumstances of the present case, since in the present case it is established that due to medical negligence on the part of the appellant / O.P. the complainant not only had a severe drug reaction but also she lost her eyesight of both eyes. On the contrary, the decisions relied upon by the learned advocate of the complainant / respondent herein are applicable to the present case since the facts & circumstances of the present case are identical to those of said cases. Hence, we are of the considered view that there is no merit in this appeal. It deserves to be dismissed.
ORDER i. The appeal is dismissed. ii. No order as to costs. iii. Copy of the order be furnished to both parties free of cost. [HON'BLE MR. B.A.SHAIKH] PRESIDING MEMBER [HON'BLE MRS. Jayshree Yengal] MEMBER