State Consumer Disputes Redressal Commission
Dr.R.S.Dhir vs Mithlesh Rajput & Ors. on 8 March, 2017
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION
PANDRI, RAIPUR (C.G.)
Appeal No.FA/2016/451
Instituted on : 24.09.2016
Oriental Insurance Company Limited,
Through : Divisional Manager,
Rama Trade Centre, Old Bus Stand,
Tahsil and District Bilaspur (C.G.) ... Appellant/O.P. No.2
Vs.
1. Mithlesh Rajput, S/o Baburam Rajput,
Aged about 40 years.
2. Ku. Khushboo, Aged about 15 years,
D/o Mithlesh Rajput.
3. Jaideep Rajput, Aged about 14 years,
S/o Mithlesh Rajput.
4. Lushrita Kumari, Aged about 12 years,
D/o Mithlesh Rajput
All R/o : Kududand,
Tahsil & Dist. Bilaspur (C.G.) ... Respondent No.1 to 4/Complainants
5. Dr. R.S. Dheer,
Tejkaur Nursing Home, Near Syndicate Bank,
Dayalband, Bilaspur,
Tahsil & District Bilaspur (C.G.) .... Respondent No.5/O.P.No.1
Appeal No.FA/2016/502
Instituted on : 22.10.2016
Dr. R.S. Dheer, Tejkaur Nursing Home,
Near Syndicate Bank, Dayalband,
Bilaspur, Tehsil Bilaspur,
Civil & Revenue Dist. Bilaspur (C.G.). ... Appellant / O.P. No.1
Vs.
1. Mithlesh Rajput, son of Baburam Rajput,
Aged about 40 years.
// 2 //
2. Ku. Khushbu, Daughter of Mithlesh Rajput,
Aged about 15 years,
3. Jaideep Rajput, S/o Mithlesh Rajput,
Aged about 14 years,
4. Lushrita Kumari, daughter of Mithlesh Rajput,
Aged about 12 years,
All R/o : Kududand,
Tahsil & Dist. Bilaspur (C.G.) ... Respondent No.1 to 4/Complainants
Respondent No.1 to 4 are resident of
Kududand, Tehsil Bilaspur, District Bilaspur (C.G.)
5. The Oriental Insurance Company Limited,
Through : Branch Manager, Rama Trade Centre,
Old Bus Stand, Bilaspur, Tehsil Bilaspur,
District Bilaspur (C.G.). ... Respondent No.5/O.P.No.2
PRESENT: -
HON'BLE JUSTICE SHRI R.S. SHARMA, PRESIDENT
HON'BLE SHRI D.K. PODDAR, MEMBER
HON'BLE SHRI NARENDRA GUPTA, MEMBER COUNSEL FOR THE PARTIES IN BOTH THE APPEALS:-
Shri Avnish Diwan, for the complainants. Shri Sunil Otwani, Advocate with O.P. No.1 Dr. R.S. Dheer. Shri Raj Awasthi, Advocate for O.P. No.2.
O RDER Dated : 08/03/2017 PER: - HON'BLE JUSTICE SHRI R.S. SHARMA, PRESIDENT This order will govern disposal of Appeal No.FA/2016/451 and Appeal No.FA/2016/502, which have been preferred respectively by the O.P. No.2 The Oriental Insurance Company Limited and O.P. No.1 Dr. R.S. Dheer, in Complaint Case No.CC/2013/158 against the order dated 11.07.2016, passed by District Consumer Disputes Redressal // 3 // Forum, Bilaspur (C.G.) (henceforth "District Forum"). By the impugned order, the learned District Forum, has allowed the complaint of the complainants and directed that :-
(1). The OPs will jointly and severally pay a sum of Rs.5,00,000/- (Rupees Five Lakhs) to the complainants towards compensation, within period of one month from the date of order along with interest @ 9% p.a. from the date of filing of the complaint i.e. 23.09.2013 till realisation. (2). The OPs will also pay a sum of Rs.5,000/- (Rupees Five Thousand) towards cost of litigation to the complainants.
2. The O.P. No.1 has filed appeal No.FA/2016/502 and the O.P. No.2 has filed appeal No.FA/2016/451 for setting aside the impugned order of the District Forum. The original of this order be retained in the file of Appeal No. FA/2016/502 and it's copy be placed in the file of Appeal No. FA/2016/451.
3. Briefly stated the facts of the complaint of the complainants are that the O.P. No.2 is an expert Orthopedician. The wife of the complainant No.1 and mother of complainant Nos.2 to 4 namely Smt. Premlata alias Pinky Rajput was having pain in wrist of right hand, therefore, she was taken to the nursing home of the O.P. No.1 for treatment on 14.02.2013. The complainant No.1 also went along with her. The O.P. No.1 had taken necessary charges for treatment of Smt. // 4 // Pinky Rajput and thereafter the conducted preliminary test in the nursing home and also got conducted blood test and x-ray for which the O.P. No.1 received charges from the complainant No.1. After conducting test, the O.P. No.1 informed that the wife of the complainant No.1 is having Bone T.B. and on 14.02.2013 he prescribed some medicines to her. The wife of the complainant No.1 purchased the medicines prescribed by the O.P. No.1 and as per instructions of the O.P.1 started taking the medicines and she was regularly taking the medicines as per instruction of the O.P. No.1, but the pain in the right hand of the wife of the complainant No.1 was not relieved. On 26.02.2013 she again came to O.P. No.1 for treatment, the O.P. No.1 again prescribed some medicines, but from the above medicines, there was no improvement in the pain in the wrist of right hand of the wife of complainant No.1. Due to consumption of the medicines prescribed by the O.P. No.1, the wife of the complainant No.1 was having complaint of suffocation and embarrassment (anxiety) etc. The O.P. No.1 refused to treat her. When the O.P. No.1 refused to treat the wife of the complainant No.1, he took her to Dr. Shaila Milton, who conducted necessary test and prescribed medicines, but her condition was not improved The wife of the complainant No.1 was referred to Apollo Hospital on 03.03.2013, but in the above hospital there was no expert doctor, therefore, the complainant No.1 took his wife and admitted her in Gayatri Nursing Home but her condition was not improved and // 5 // from the test it came to know that there was serious infection in the kidney of wife of the complainant No.1, due to which she was brought to Shriram Care Hospital. On 04.03.2013, the wife of the complainant No.1 died. The O.P. No.1 informed that wife of the complainant was having bone T.B. whereas prior to taking treatment, she was not having any complaint regarding the same and she also did not take any treatment for the same. The complainant contacted the O.P. No.1 several time, but the O.P. No.1 did not provide the blood test report, x- ray report etc. If in the body of the wife of the complainant No.1 any symptom of Bone T.B. was found, even then O.P. No.1 did not properly treat the patient. The wife of the complainant No.1 has no previous history regarding the disease of T.B. If the O.P. No.1 found that deceased was suffering from T.B., then it was of Grade 1, but the O.P. No.1 gave treatment to the deceased for Grade - 2 and gave Streptomycin injection, whereas the above medicine is prohibited for Grade- 1. The O.P. No.1 was very well aware regarding the same but the O.P. No.1 did not follow the guidelines of the Government and used the prohibited medicines. The O.P. No.1 committed negligence in treatment of the wife of the complainant, due to which infection was occurred in her kidney and quantity of the cretanine was increased. Due to fatal infection, the wife of the complainant died, for which the O.P. No. is fully responsible. If the O.P. No.1 could not use the prohibited medicines, then three could have been no adverse affect on // 6 // the kidney of the wife of the complainant and her life could be saved. The O.P. No.1 committed medical negligence. The O.P. No.1 obtained insurance policy from the O.P. No.2. Hence the complainant filed consumer complaint before the District Forum and prayed for granting reliefs as mentioned in the relief clause of the complaint.
4. The O.P. No.1 filed his written statement and averred that on 14.02.2013. Smt. Pinky Rajput contacted to the O.P. No.1 for medical consultation and she informed that she was having symptoms of osteoporosis and accordingly medical advice was given to her. The patient was given proper advice according to symptoms existed in the patient and on the basis of medical experience. The patient contacted the O.P. No.1 on 26.02.2013 for follow up for the advice given by the O.P. No.1 on 14.02.2013, the patient requested the O.P. No.1 not to administer injection and she continued to take the medicines. During examination of the patient it was found that due to affect of the medicines there was decrease in the pain and there was improvement in the movements and thereafter she did not come to the O.P. No.1 for treatment. The O.P. No.1 did not refused to treat the patient. The patient got benefit from the medical advice given by the O.P. No.1. After 26.02.2013, the complainant did not take any advice from the O.P. NO.1. From the documents filed along with complaint, it appears that the patient suffered complaint of body- ache after taking pentaparajol // 7 // and refacept and was taken to Dr. Milton Hospital on 02.03.2013 where her casual treatment was done and her condition became constant. Again on 03.03.2013, she was referred from Milton Hospital to Apollo Hospital, Bilaspur On 14.12.2013 the patient was examined and on the basis of existing symptoms and reports brought by her, it was found that in the wrist of the patient the symptom of T.B. was existed, on the basis of which medical instructions were given. On 26.02.2013 when the wife of the complainant came to O.P. No.1 for examination, then it was found that her condition was improved. As the patient requested not to administer injection, therefore, administration of the injection was stopped. The patient was instructed to get required test which is mentioned in the report. All reports were taken with them by her attendants and after perusal of the same, the same was returned to the attendants. No negligence has been committed by the O.P. No.1 in treatment of the patient. The complainant is not entitled to get any compensation from the O.P. No.1. The O.P. No.1 obtained Professional Indemnity Policy No.193300/48/2011 from the Oriental Insurance Company, Bilaspur, which was effective for the period from 07.03.2012 to 06.03.2013. If the O.P. No.1 is fund liable then, the compensation is to be paid by the Insurance Company. In the instant case, the Insurance Company is also a necessary party. The complainants have no right to file the complaint. The complainant sought the compensation illegally. The complainants have filed the instant // 8 // complaint with malafide intention and to harass the O.P. No.1. The complaint is liable to be dismissed.
5. The O.P. No.2 filed its written statement and averred the complainants are not entitled to get compensation of Rs.5,00,000/- from the O.P. No.2. The cause of action did not accrue to the complainants on 14.02.2013 and 04.03.2013 The death of Smt. Pinky Rajput did not occur due to medical negligence. Therefore, the complainants are not entitled to get any compensation from the O.P. No.2. On the basis of the proposal received from the O.P. No.1, the O.P. No.2 issued Policy No.193300/48/2012/2898 for the period from 07.03.2012 to 06.03.2013 The terms and conditions mentioned in the Professional Indemnity Doctors Policy Schedule are binding on the O.P. No.1. The complaint is liable to be dismissed with cost.
6. The complainants have filed documents which are prescription slip dated 14.02.2013 of Dr. R.S. Dhir, treatment slip of Dr. Shaila Philip, report of Balaji Diagnostic, report of Akash Patholab, treatment slip of Gayatri Nursing Home, treatment of Shriram Care, report of Balaji Diagnostics, report of Modern Patholab, Death Certificate issued by Shri Ram Care Hospital, bill issued by Shri Ram Care Hospital, bill issued by Apollo Hospital, Bilaspur, Revised National Tuberculosis Control Programme Treatment Card, report lodged to Incharge Officer, Police Station City Kotwali, Bilaspur, registered notice dated 03.05.2013 // 9 // sent by the complainant to the O.P. No.1, letter dated 29.04.2016 sent by Dr. R.K. Bhange to the complainant No.1.
7. The O.P. No.1 has filed document which is Policy Schedule, literatures obtained through internet.
8. The O.P. No.2 has not filed any documents.
9. Shri Sunil Otwani, learned counsel appearing for the O.P. No.1 (appellant of Appeal No.FA/2016/502) has argued that the impugned order passed by the District Forum, is erroneous. Learned District Forum itself reached to the conclusion that the complainants have not been able to prove that renal failure of the wife of the complainant No.1 was occurred due to Streptomycin medicine given by the O.P. No.1. Learned District Forum reached to the conclusion that it is not proper to reach to the conclusion that the death of wife of the complainant No.1 was caused due to Streptomycin medicine given by the O.P.No.1. The District Forum itself reached to the conclusion that death of the deceased was not occurred due to Streptomycin medicine, therefore, it would not be justified to hold that the O.P. No.1 committed an act of negligence. The learned District Forum has also given finding that the death of the wife of the complainant No.1 cannot be co-related with the medicine of streptomycin. Even then the District Forum held that the O.P. No.1 committed medical negligence. The District Forum // 10 // shifted the burden upon the O.P. No.1, which is perverse and against the settled principles of law. The wife of the complainant No.1 was treated by the O.P. No.1 as outdoor patient, therefore, her treatment papers were not in possession of the O.P. No.1. Had the deceased was admitted in the O.P. No.1 hospital as an indoor patient in such situation, the documents with regard to treatment would have been in the possession of the O.P. No.1. Dr. R.K. Bhange, who gave his opinion, is not sufficient to establish medical negligence on the part of the O.P. No.1. Dr. R.K. Bhange is not a specialist doctor and he is simply possessing M.B.B.S. degree. Merely on the basis of prescription paper, Dr. R.K. Bhange gave his report. Dr. R.K. Bhange, did not examine the x-ray and pathological report of the deceased. Therefore, the letter sent by Dr. R.K. Bhange to the complainant No.1 is not acceptable and it will not help to the complainants. The expert report was not called by the District Forum. It is duty cast upon on the District Forum to call an expert report from Government Hospital or Medical College. Therefore, the impugned order passed by the District Forum, is not sustainable in eye of law and the same is liable to be set aside. He place reliance on Prayag Hospital & Research Center Pvt. Ltd. & Anr. Vs. Vijay Pal, 2016 (2) CPR 2 (NC); Ashok Kumar Pathak Vs. Dr. Swarnava Roy and Anr. 2017 (1) CPR 251 (NC); Oxford Hospital (P) Ltd. and Anr. Vs. K.K. Mittal & 2 Ors., 2016 (3) CPR 20 (NC) and Pally Srikanth & Ors., 2016 (4) CPR 46 (NC).
// 11 //
10. Shri Raj Awasthi, learned counsel appearing for the O.P. No.2 (appellant of Appeal No.FA/2016/451) has argued that the impugned order passed by the District Forum is contrary to the facts and evidence, which is available on record. The District Forum has committed a gross error by not considering the legal defence raised by the O.P. No.2 regarding terms and conditions raised in the insurance policy, which relates to professional indemnity. The District Forum has wrongly imposed liability on O.P. No.2. The District Forum has failed to consider the fact that the negligence committed by the O.P. No.2 is willful negligence as doctor has given treatment to the patient for the disease for which doctor has no medical competence, therefore, if any mistake was committed by O.P. No.1, the O.P. No.2 is not responsible for it. Learned District Forum has wrongly fastened liability on O.P. No.2. The appeal of the O.P. No.2 be allowed and order passed by the District Forum be set aside.
11. Shri Avnish Diwan, learned counsel appearing for the complainants (respondent No.1 to 4) in both the appeals has supported the impugned order passed by the District Forum and prayed for dismissal of both the appeals filed by the OPs. He placed reliance on the literatures obtained through internet.
// 12 //
12. We have heard learned counsel appearing for the parties and have also perused the record of the District Forum as well as the impugned order passed by the District Forum.
13. In Pally Srikanth & Ors. Vs. M/s. Krishna Institute of Medical Sciences Ltd. & Ors. (Supra), Hon'ble National Commission has observed that "Onus of proving alleged negligence in treatment of a patient lies with person alleging medical negligence."
14. In Prayag Hospital & Research Center Pvt. Ltd. & Anr. Vs. Vijay Pal (Supra), Hon'ble National Commission has observed that "complainants must provide materials to prove allegation of medical negligence."
15. In Ashok Kumar Pathak Vs. Dr. Swarnava Roy and Anr. (Supra), Hon'ble National Commission has observed that "Medical Negligence must be proved by expert opinion."
16. Now we shall examine whether the complainants have proved their case that O.P. No.1 committed medical negligence ?
17. The complainants have filed literature i.e. Health Guide titling Osteoporosis - Overview, obtained through internet, in which Osteoporosis has been defined as "Osteoporosis is a disease in which bones become fragile and more likely to fracture. Usually the bone // 13 // loses density which measures the amount of calcium and minerals in the bone.
Causes :
Osteoporosis is the most common type of bone disease. Because of osteoporosis about half of all women over the age of 50 will have a fracture of the hip, wrist, or vertebra (bone of the spine) during their lifetime.
...
Calcium is one of the important minerals needed for bones to form... Symptoms There are no symptoms in the early stage of osteoporosis. Many times, people will have a fracture before learning that they have the disease. Treatment Treatment for osteoporosis may involve :
Lifestyle changes, such as diet and exercise Taking calcium and vitamin D. Estrogens, teriparatide, raloxifene, and calcitonia".
18. The complainants have filed literature on Streptomycin obtained through internet in which it is mentioned thus :-
"Streptomycine may cause severe toxic nerve reactions. The risk is increased in patients with kidney problems. Other severe problems like vision problems, trouble keeping you balance, certain balance problems, and hearing problems (eg. Permanent // 14 // hearing loss) may also happen. It may be increased if you get high doses of streptomycin, or if you get it for a long time. The risk may also be increased in older people, infants, or people who are dehydrated. If you already have kidney problems or hearing problems, tell your doctor. Your doctor will monitor your progress to lower the possibility of these effects. Your doctor may also run certain tests (eg, hearing and/or kidney tests). Discussion any questions or concerns with your doctor.
Streptomycin is used for :
Treating tuberculosis (TB) and infections caused by certain bacteria.
Streptomycin is an aminoglycoside. It works by killing sensitive bacteria by stopping the production of essential proteins needed by the bacteria to survive".
19. The complainants have filed another literature on Streptomycin, which has been obtained through internet, in which it is mentioned thus :-
"Streptomycin is an antibiotic (antimycobacterial) drug, the first of a class of drugs called aminoglycosides to be discovered, and it was the first effective treatment for tuberculosis. It is derived from the actinobacterium Streptomyces griseus. Streptomycin is a bactericidal antibiotic. Adverse effects of this // 15 // medicine are ototoxicity, nephrotoxicity, fetal auditory toxicity, and neuromuscular paralysis.
Uses Treatment of diseases Tuberculosis in combination with other anti-TB drugs. It is not the first-line treatment, except in medically under- served populations where the cost of more expenses treatment is prohibited".
20. The complainants have filed a literature, in which it is mentioned thus :-
"Q. How do creatinine levels effect the kidneys ? A. The levels of creatinine in the blood show how well the kidneys are working, according to Medicine Net. High levels of creatinine is an indication that the kidneys are not functioning correctly to filter the creatinine and maintain it at a normal level. Creatinine level also depend on the number of muscle tissues in the body, explaining why men have high creatinine levels then women.
Q. What are normal creatinine levels ?
A. According to MedicineNet, normal creatinine levels are
0.6 to 1.1 milligrams per decititer in women.
// 16 //
21. The complainants have filed a literature on Creatinine Blood Test, which has been obtained through internet in which it is mentioned thus :-
"How to RemoveUrine Protein :
As the kidneys become impaired for any reason, the creatinine level in the blood will rise due to poor clearance of creatinine by the kidneys. Abnormally high levels of creatinine thus warn of possible malfunction or failure of the kidneys."
22. In para 9 of the impugned order, the District Forum has mentioned "that the contention of the complainant No.1 is that his wife never suffered from Bone T.B. and she was not treated. The O.P. No.1 for the first time on 14.02.2013 erroneously told that his wife was suffering from Bone T.B. and treated her and gave the prohibited medicines Streptomycin, due to which kidney of his wife was damaged and on 04.03.2013 she died. Thus according to complainant No.1, the death of was occurred due to effect of the Streptomycin medicine given by the O.P. No.1, whereas in this regard the complainant No.1 did not adduce any evidence or proof in the case from which it is shown that the kidney of wife of the complainant no.1 was damaged due to streptomycin medicine given by the O.P. No.1."
23. In para 10 of the impugned order, the District Forum has mentioned "that the complainant No.1 in support of his contention has // 17 // filed medical literature regarding the effect of Streptomycin medicine. From perusal of the above, it is clear that Streptomycin is an antibacterial medicine and its excessive use is harmful to the kidney. In the instant case, according to the complainant No.1, his wife used the above medicines from 14/02/2013 to 26/02/2013. Therefore, the contention of the complainant No.1 that in a very short period due to use of Streptomycin medicine the kidney was damaged, does not get support from the medical literature, in these circumstances without any cogent and dependable evidence or proof, it is not justified to co-relate the death of the wife of the complainant No.1 with the Streptomycin medicine given by the O.P. No.1".
24. It appears that the learned District Forum itself observed that it would not be justified to hold that the O.P. No.1 is responsible for committing an act of negligence. The District Forum has also given finding to the effect that the death of the wife of the complainant No.1 cannot be-co-related with the medicine of Streptomycin. It is admitted that Pinky Rajput, was wife of the complainant No.1 and the mother of complainant No.2 to 4, was having complaint of pain in wrist of right hand and she was taken to O.P. No.1 Dr. R.S. Dhir. He advised for blood test and x-ray. After perusal of the said reports, the O.P. No.1 diagnosed that she was suffering from Bone T.B., but pain of wife of the complainant no.1 was not relieved, The complainant further // 18 // pleaded that the deceased was brought to O.P.No.1, but the O.P. No.1 refused to treat the deceased, therefore she was taken to Dr. Shaila Milton Philip, who referred her to Apollo Hospital, but in the Apollo Hospital there was no specialist doctors, therefore, the wife of the complainant No.1 was brought to Gayatri Nursing Home, where her health condition did not improve. After examination, it is found that kidney of the deceased was severely damaged, thereafter she was taken to Shri Ram Care Hospital, where she died on 04.03.2013.
25. The complainants have filed prescription of O.P. No.1 in which Refacept was prescribed. Dr. Shaila Milton mentioned in her prescription dated 03.03.2013 that the patient took Anti TB t/t. Pt. had severe anaphylad reaction yesterday due to Tab. Pantop."
26. Dr. R.K. Bhange, sent letter dated 29.04.2016 to the complainant No.1 in which it is mentioned thus :
"vkids }kjk i= ,oa layXu fpfdRlh; i=ksa ds fglkc ls feyh tkudkjh ds vuqlkj MkW- vkj- ,l- /khj] lkgc ds iphZ ds vuqlkj ejht dk otu 79 fdyks dk mYys[k gS ,oa fcekjh dk uke vfLg;ksiksjsfll lh/kh dykbZ esa crk;k x;k Fkk- ftlds vuqlkj ,.VhVh dh nokbZ;ksa] batsD'ku SMT 2m+Refacept3+ Macox plus kid fn;k x;k tcfd Vh-ch- ds y{.k ugha ik, x;s A 'kSyk uflZax gkse] xk;=h gfLiVy }kjk bykt dk dkj.k WBC Co2nt, Bl Urea, Screat c<+k gqvk ik; x;k tc ejht dks usQzksykftLV ds ikl fjQj fd;k x;k A Jhjke ds;j gkfLiVy esa fofHkUu jDr tkap ls WBC Co2nt, Bl Urea, Screatinine c<+k gqvk ik;k x;k tks Renal Failure rjQ b'kkjk // 19 // djrk gS ,oa e`R;q dk dkj.k fjiksVZ ds vuqlkj Renal Failure gS A e``rd dk iksLV ekVZe ugha gksuk ik;k x;k A {k; jksx ds fy, mez ,oa otu o ,DlVªk iyeksujh Vh-ch- ds fy, dyhfudy ,oa iSFkkykftdy ,foMsUl gksuk t:jh gS A vf/kd tkudkjh ds fy, ftyk {k; fu;a=.k dsUnz RNTCP dh ls Guideline yh tk ldrh gS "
27. Dr. R.K. Bhange, is simply possessing MBBS DTCD and he is not specialist doctor. In his letter, he simply mentioned that "{k; jksx ds fy, mez ,oa otu o ,DlVªk iyeksujh Vh-ch- ds fy, dyhfudy ,oa iSFkkykftdy ,foMsUl gksuk t:jh gS A"
28. The deceased was given Streptomycin medicine which is a medicine prescribed for T.B. Grade - 2 and the deceased was suffering from T.B. Grade 1. Learned District Forum itself reached to the conclusion that death of the deceased was not occurred to Streptomycin medicine given by O.P. No.1. In para 9 of the impugned order, the District Forum has reached to the conclusion that according to complainant No.1, the death of was occurred due to effect of the Streptomycin medicine given by the O.P. No.1, whereas in this regard the complainant No.1 did not adduce any evidence or proof in the case from which it is shown that the kidney of wife of the complainant no.1 was damaged due to streptomycin medicine given by the O.P. No.1." In para 10 of the impugned order, the District Forum reached to the conclusion that Therefore, the contention of the complainant No.1 that // 20 // in a very short period due to use of Streptomycin medicine the kidney was damaged, does not get support from the medical literature, in these circumstances without any cogent evidence or proof, it is not justified to co-relate the death of the wife of the complainant No.1 with the Streptomycin medicine given by the O.P. No.1. But in para 14 of the impugned order, the District Forum reached to the conclusion that the O.P. No.1 instead of giving medicine for T.B. Grade 1 has given medicine for T.B. grade 2 which shows his medical negligence. The above finding is self contradictory to the finding reached by the District Forum that the death of deceased cannot be co-related with medicine Streptomycin and renal failure is not due to Streptomycin medicine.
29. The complainants, except letter dated 29.04.2016 sent by Dr.R.K. Bhange to the complainant No.1, have not adduced any expert report from Medical College or Government Hospital. The initial burden lies on the complainants to prove their case and it is essential for proving allegation of medical negligence against the O.P. No.1 that expert opinion must be adduced. In the instant case, except letter dated 29.04.2016 sent by Dr. R.K. Bhange to the complainant No.1, the complainants have not filed any material evidence. Even the complainants have not filed affidavit of Dr. Shaila Milton and Dr. Shaila Milton did not give her opinion that deceased was suffering pain due to Streptomycin medicine given by O.P. No.1, therefore, merely giving // 21 // Streptomycin medicine by the O.P.No.1 to the deceased, it cannot be held that the O.P.No.1 has committed medical negligence.
30. Therefore, impugned order dated 11.07.2016, passed by the District Forum, is erroneous and not sustainable in eye of law, hence is liable to be set aside.
31. Hence, the appeal No.FA/2016/451 filed by the O.P. No.2 and appeal No.FA/2016/502 filed by the O.P.No.1, are allowed and the impugned order dated 11.07.2016, passed by the District Forum, is set aside. Consequently, the complaint filed by the complainants, shall stand dismissed. No order as to the cost of these appeals.
(Justice R.S. Sharma) (D.K. Poddar) (Narendra Gupta)
President Member Member
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