State Consumer Disputes Redressal Commission
Ku.Rutuja Kharkar vs Dr.Kumarsingh Kadam on 6 March, 2017
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION MAHARASHTRA NAGPUR CIRCUIT BENCH NAGPUR Complaint Case No. CC/09/20 1. KU.RUTUJA KHARKAR AMRAVATI ...........Complainant(s) Versus 1. DR.KUMARSINGH KADAM WARDHA ............Opp.Party(s) BEFORE: HON'BLE MR. B.A.SHAIKH PRESIDING MEMBER HON'BLE MRS. Jayshree Yengal MEMBER For the Complainant: Advocate Mr S D Harode For the Opp. Party: Advocate Mr B G Kulkarni Dated : 06 Mar 2017 Final Order / Judgement Per Mr B A Shaikh, Hon'ble Presiding Member
1. This is a complaint filed by the minor girl namely Ku. Rutuja Uddhavrao Kharkar, aged about 8 years, through her mother Sangita under Section 17 of Consumer Protection Act, 1986, seeking compensation of Rs.90.50 Lacs for loss of vision of her both eyes due to medical negligence and cost of Rs.50,000/-.
2. The case of the complainant as set out by her in the said consumer complaint in brief is as under.
a. The complainant Rutuja was learning in first standard in Adarsha Primary School of Amravati. She had normal vision prior to medical treatment taken by her from the opposite party. She had been to her maternal grand father's house at Arvi during summer vacation of her school in the month of June 2008. On 04.06.2008 she was simply suffering from seasonal fever and therefore her mother and maternal grand father brought her to the hospital of opposite party of Arvi for medical treatment. The opposite party is a medical doctor and he runs hospital in the name as "Dr. Kadam's Maternity & Children Hospital" at Arvi.
b. The opposite party examined the complainant on 04.06.2008 at about 10.30 a.m. and he had given three different unknown loose tablets to her, which she consumed. Therefore, on 04.06.2008 the complainant started vomiting and there was no reduction in her body temperature. The opposite party was immediately contacted. He said that the same treatment be continued and complainant would get relief soon. The complainant then consumed second dose of same medicines given by the opposite party.
c. On 05.06.2008 there was no decrease in the body temperature of the complainant. But Vesicles & Blisters erupted all over her body and some were having pus like burn injuries. Therefore, the opposite party advised the maternal grand father and mother of the complainant to admit the complainant in his hospital of Arvi for further treatment. Accordingly, she was admitted there. The opposite party had administered Acyclovir 400 mg injection through saline to the complainant. There was no improvement in her condition. The opposite party continued the same treatment till 08.06.2008. The condition of the complainant was deteriorated due to wrong treatment given by the opposite party. The opposite party had assured that the complainant will get relief soon.
d. The complainant was unable to open her both eyes and there was also swelling on her both eyes and therefore, the opposite party put ointment into her both eyes. Thus, the opposite party continued administration of Acyclovir drug intra-venously to the complainant.
e. Lastly on 08.06.2008 the opposite party advised to take the complainant to Dr Pujabrao Deshmukh Medical College & Hospital of Amravati for her further treatment. Accordingly, she was taken to that hospital and admitted her there on 09.06.2008. The doctor of the said hospital diagnosed "Steven Johnson". The doctor of that hospital discharged the complainant on 10.06.2008 at 10.00 a.m. with advice to carry her to Super Speciality hospital preferably Orange City Hospital & Research Centre at Nagpur. Accordingly, the complainant was shifted and admitted in Orange City Hospital & Research Centre at Nagpur. She was treated there till 08.07.2008. The doctor of that hospital also diagnosed as "Toxic Epidermal Necrolysis" (drug reaction) with related complications. Various specialist doctors of that hospital provided treatment to the complainant for the said drug reaction. The complainant was discharged from that hospital on 08.07.2008 with the medical bill for Rs.3,11,253/-. The doctors of that hospital advised to take the complainant to Hyderabad for treatment of eyes.
f. Accordingly the complainant was taken to L.V.Prasad Eye Institute & Hospital at Hyderbad on 21.07.2008 where the complainant was treated and operated on 22.07.2008 for her left eye. The complainant was discharged on 23.07.2008 alongwith prescription of Eye Drops for 10 days. The father of the complainant paid expenses of Rs.10,600/- to that hospital. The doctors of L.V. Prasad Eye Institute frequently called the complainant for treatment after each interval of about 10 days. On 10.09.2008 the complainant was again operated on her left for which the complainant's father paid Rs.6,100/-. He also incurred expenses of medicines at Hyderabad, which were about Rs.5,000/-
g. The complainant was unable to open her both eyes since 06.06.2008. She developed Scars all over her body having different colours in the beginning as residual indication of drug reaction.
h. The complainant could not continue her further education because of her eye problem and body weakness. The complainant is now unable to open her both eyes and she cannot tolerate sunlight. Her treatment is still going on and there is no improvement. Thus, the complainant has become blind by both eyes and there is no chance of recovery of her vision. Both eyes of the complainant are damaged due to drug reaction, which was administered by opposite party from 05.06.2008 to 08.06.2008 to her.
The opposite party did not take prior test of viral disease before administration of injection namely Acyclovir or other drugs. The drug Acyclovir is used as antiviral treatment, which cannot be given without prior viral test confirming viral infection. The complainant had no viral infection during the period from 04.06.2008 to 08.06.2008 and therefore, the said Acyclovir drug must not be administered to her. Even on realizing bad effects of wrong treatment, the opposite party did not administer antidote to her. Thus, it was the total negligence on the part of opposite party and due to which the complainant lost vision of her both eyes. The opposite party spoiled her entire life enjoyment, progress, expectations, desires, emotions & sentiments. She is the only child of her parents. She cannot perform her day to day activities without assistance of her mother.
j. The complainant through her guardian, therefore, issued notice to the opposite party for loss of eye sight and demanded from him compensation of Rs.90.50 Lacs under different heads. The opposite party gave false reply to that notice. Therefore, alleging deficiency in service on the part of the opposite party, this consumer complaint is filed by the complainant against the opposite party making claim as follows.
Sl.
No. Description Claim (in Rupees) a.
Actual pecuniary damages as expenses incurred for treatment.
6,50,000/-
b.
Medical & Special Diet expenses @ Rs.5,000/-
per month for expected Life time of 50 years.
30,00,000/-
c.
Loss of education, future earning @ Rs.10,000/- per month for expected Period of 30 years.
36,00,000/-
d.
Pain, suffering, loss of amenities & enjoyment of life due to 100% disablement.
8,00,000/-
e.
Damages on account of Ku. Rutuja to her parents.
10,00,000/-
Total 90,50,000/-
The complainant also claimed litigation cost of Rs.50,000/- from the opposite party. She also claimed interest over the aforesaid amount @ 12% p.a. from the date of complaint till realisation by her.
3. The opposite party appeared before this Commission and resisted the complaint by filing reply. The case of the opposite party in brief is as under.
a. The complainant Rutuja used to pay visit to her maternal grand father at Arvi and the family members of her maternal grand father Pachghare used to take treatment from the opposite party. The complainant was treated by the opposite party previously from 28.08.2002 to 01.09.2002. She has suppressed the said fact. Moreover, the complainant was sick from 25.05.2008 to 03.06.2008 and she was treated by unknown person during that period. It is not known whether the said treatment was correct or not. The said prior treatment is also intentionally suppressed by the complainant.
b. The complainant was brought to the hospital of opposite party on 04.06.2008 with complaint of fever, vomiting, constipation, loss of appetite and pain in lower limb of vaginal area. The treatment was started with established method alongwith antibiotic Ciprofloxacin. It is denied that three different loose tablets of unknown description were given by the opposite party to the complainant. The complainant had remained at her home on 04.06.2008 after going back from hospital of opposite party. In the evening it was informed to the opposite party that the complainant had vomited once.
c. On next date i.e. on 05.06.2008 the complainant was brought to the opposite party. It was noticed on her examination that her temperature has gone up and well defined granular rashes were developed over the entire body. It was completely new presentation. The said rashes are normally associated with itching and burning sensation. Therefore, the opposite party clinically diagnosed it to be Chickenpox. The opposite party then as per well established medical practice administered a drug namely Acyclovir (250 mg) through intravenous dextrose and saline alongwith multivitamin injection to the complainant. She responded well to the said treatment.
d. On 06.08.2008 and 07.08.2008 the condition of the complainant was improved to a great extent. She had started taking food orally. She had no difficulty of swallowing. Her temperature was also reduced. Moculo-papular over her other parts of body was reduced significantly except the facial region and eye region. The said rashes were very severe on her face and eye region. In view of the vesicles of Chickenpox on facial and eye region, the tropical treatment by applying ointment was given to reduce itching, burning sensation and to avoid secondary infection.
e. The maternal grand father of the complainant, therefore, requested the opposite party to discharge the complainant. The complainant had practically recovered except some rashes on her body. Therefore, on 08.06.2008 as per request of maternal grand father of the complainant, she was discharged by the opposite party, with all necessary instructions of continuing the treatment.
f. The opposite party was not informed about further treatment till receipt of legal notice dtd.20.07.2009 by him. The opposite party learnt from that notice that Chickenpox treatment was discontinued under ill advice and the treatment based upon the completely ill founded diagnosis was given.
g. The complaint is based upon totally incorrect and baseless allegations that Steven Johnson Syndrome or Toxic Epidermal Necrolysis was an outcome of drug reaction because of drug Acyclovir. The Chickenpox infection in technical term is "Varicella - Zoster Virus Infection" (for short VZV infection). Acyclovir is the most extensively studied drug for the treatment of Chickenpox. Acyclovir is a well tolerated and safe drug and it does not have side effects of producing condition of Toxic Epidermal Necrolysis.
h. The ocular complications are developed because of VZV infection and not because of Acyclovir drug. The Toxic Epidermal Necrolysis is the reaction of other drugs, which are specified in Para 24 of the said reply.
i. Therefore, no negligence on the part of opposite party can be alleged. The treatment given by the opposite party is perfectly justified and proper. The opposite party cannot be blamed for action of discontinuing the treatment of Chickenpox from 08.06.2008. Therefore, the opposite party had prayed that the complaint may be dismissed with cost.
4. The complainant filed evidence affidavit of her mother Sangita Uddhavrao Kharkar and so also evidence affidavit of Haribhau Pachghare, who is the maternal grand father of the complainant. The complainant's mother also filed rejoinder of the complaint after receiving reply of the opposite party. The complainant also filed copies of medical prescriptions, cash memos of medicines, treatment history given by the opposite party, discharge summary issued by Punajabrao Deshmukh Medical College & Hospital, Amravati. Discharge summary issued by Orange City Hospital, Nagpur and discharge summary issued by L V Prasad Hospital, Hyderabad. The complainant also produced her School Leaving Certificate and Permanent Disability Certificate showing 100% permanent disability due to loss of vision of her both eyes. Issued by Government Medical Board & certificate of Dr. Anil Dhamorikar The complainant also produced copy of legal notice issued to the opposite party and reply given by the opposite party to that notice. The complainant also produced treatment papers of hospital of Sankaran Netralaya, Chennai.
5. The opposite party on the other hand filed his affidavit and affidavits of three doctors namely Dr Bhalchandra Jogeshwar Subhedar, Dr. (Mrs) Sanjivani Shriram Deshmukh and Dr Sujata Dudhgaonkar. The opposite party also produced Xerox copies of commentary recorded in text book of medicine relating to Chickenpox, Steven Johnson and Toxic Epidermal Necrolysis (drug reaction).
6. The complainant moved an application to this Commission for appointment of expert to give opinion on the facts of the present case. This Commission allowed that application on 06.03.2010 and issued letter of request to Dean of the Department of Ophthalmology, All India Institute of Medical Sciences (in short AIIMS), New Delhi, requesting to examine the case papers and if necessary to call the complainant for medical checkup and issue necessary expert opinion. Accordingly a panel of four doctors of the AIIMS examined the case papers and the complainant and issued expert opinion under their joint signatures on 28.09.2011, which is also placed on record.
7. Thereafter, the interrogatories were served by the opposite party to the said expert doctors of AIIMS as per permission granted by the Hon'ble National Commission in revision petition bearing No.937 of 2015 vide order dtd.26.08.2015. The said doctors then gave answers to the said interrogatories in writing, which this Commission received alongwith covering letter dtd. 07.11.2016.
8. Thereafter, this Commission heard the learned advocates of both parties and considered Written Notes of Arguments filed by them. This Commission also considered the aforesaid evidence brought on record by both parties.
9. The only question involved in the present complaint is as to whether the complainant lost vision of her both eyes due to wrong diagnosis of the opposite party and wrong treatment given by the opposite party to the complainant against well established medical practice, constituting medical negligence on his part and if yes, to what compensation the complainant is entitled.
The learned advocate of the complainant reiterated the aforesaid case of the complainant in his argument and mainly argued that the opposite party administered Acyclovir and other drugs through injection to the complainant without any prior test of viral disease and he continued the same treatment without confirming viral infection though the complainant had no such viral infection from the period during 04.06.2008 to 08.06.2008 and therefore, the antiviral drug namely Acyclovir ought not to have been administered to her, particularly when it was realised that the complainant had severe bad effects of wrong treatment. He also argued that the opposite party did not administer antidotes to complainant though there were clear symptoms of drug reaction and due to that reason the complainant lost vision of her both eyes and suffered other health problems. He relied on the observations made in the following cases.
a. Malay Kumar Ganguly Vs. Sukumar Mukherjee & Ors., AIR 2010 Supreme Court 1162.
It is observed in that case that adverse effect of medicine must be informed to the patient and that failure to use due skill in diagnosis with result that the wrong treatment is given would be negligence. It is also observed that when a patient is suffering from Toxic Epidermal Necrolysis (for short TEN) and when doctor prescribed the patient higher dose of steroids and failed to provide any aggressive supportive therapy or advise for providing IV Fluids or other supplements that is a necessity for the TEN patient who was critically ill.
Moreover, on visiting to the hospital vital parameters of the patient were not examined, no IV fluid was administered. Therefore, death of the patient was occurred and hence doctors and hospital were negligent and liable to pay compensation.
b. Indubai J Patel & Anr. Vs. Thakkar Kalpesh Kumar & Ors., 2012(2) CPR 480 (NC).
In that case doctor did not conduct any blood tests or diagnostic tests to ascertain actual cause of illness of the patient. He had reached conclusion in a perfunctory & prima facie manner. He administered medicine without taking care to rule out adverse reactions and hence he was found guilty of medical negligence.
11. The learned advocate of the complainant also submitted that the complainant has proved from the expert opinion of the doctors of AIIMS Hospital and from other medical evidence that the opposite party is guilty of medical negligence due to which the complainant has lost vision of her both eyes.
12. On the other hand, the learned advocate of the opposite party submitted in brief that the reply to the interrogatories given by the doctors of AIIMS Hospital proves that there was no drug reaction. The drug Acyclovir was rightly administered to the complainant by the opposite party. He further submitted that copies of medical text produced on record show that Acyclovir is a safest drug and it has no side effects of causing Toxic Epidermal Necrolysis. He also submitted that the symptoms developed on the complainant proved that she was suffering from Chickenpox and as per well established practice the opposite party has rightly administered a drug namely Acyclovir to her and thereafter wrong diagnosis was made about Steven Johnson Syndrome in other hospital and a treatment of chickenpox was discontinued in other hospitals, which resulted in loss of vision of both eyes of the complainant and for which the opposite party cannot be blamed about medical negligence. He relied on the decisions in following cases, in support of his submission.
i. Martin F D'souza Vs. Mohd. Ishfaq, I(2009) CPJ 32 (SC) The Hon'ble Supreme Court in that case observed that simply because patient not favourably responded to treatment given by doctor or surgery failed, doctor cannot be held straightway liable for medical negligence by applying doctrine of res ispa loquitor.
Jacob Mathew ( Dr) Vs. State of Punjab & Anr., III(2005) CPJ 9 (SC) The Hon'ble Supreme Court in that case observed that simple lack of care, error of Judgement or accident is not proof of negligence on the part of medical professional. Failure to use special or extraordinary precautions which might have prevented particular happening cannot be standard for judging alleged negligence.
iii. Prabha Shankar Ojha Vs. Neelamani Rai ( Dr), I(2010) CPJ 62 (NC) The Hon'ble National Commission in that case observed that medical practitioner is not guilty for medical negligence if different treatment prescribed by some one else of better skill and knowledge. Mere difference of opinion in adopting line of treatment not amount to medical negligence. Hence, doctor cannot be held liable only because something went wrong.
R K sharma ( Dr) Vs. Murttiya Devi, IV(2014) CPJ 710 (NC) The Hon'ble National Commission in that case observed that opposite party diagnosed and treated patient by ATT for tuberculosis. Sarcoidosis was a subsequent diagnosis, which was not diagnosed at earlier stage because of similarity with tuberculosis. This was an error of judgement, and not negligence.
Gulshan Kumar Vs. Dr Rajan & Ors., III(2012) CPJ 415 (NC) The Hon'ble National Commission in that case observed that burden of proof is on complainant to show that HIV infection was caused by carelessness or negligence on the part of hospital. Negligence is not proved.
Swati Prakash Patil Vs. Kiran Rajaram Vanarase ( Dr) & Anr., II (2007) CPJ 403.
The Hon'ble State Commission, Mumbai in that case observed that complainant alleging negligence has to establish same by adducing expert evidence.
Baburao Satappa Irrannanavar Vs. KLE Society's Hospital & Research Centre & Anr.
The Hon'ble National Commission in that case observed that to prove medical negligence of doctor, complainant has to lead adequate evidence with supportive medical texts. Same is not done. No medical negligence is proved.
13. At the outset it is worthy to note that though the opposite party No.1 in his reply filed before this Commission came with a case that the complainant had taken treatment from some unknown person prior to 04.06.2008, the same is not supported or substantiated by any document. Therefore, the same cannot be believed. Admittedly, the complainant Rutuja had gone to the opposite party for treatment of seasonal fever and cough only. It means that she was not seriously ill or she was not suffering from any complicated disease on 04.06.2008.
14. On 04.06.2008 the opposite party on examination of the complainant prescribed medicines namely Bisacodyl, Para-cetamol, CPM and Ciprofloxacin - 250 mg and he administered the same to her. However, when the complainant returned to her house, she vomited and it was reported immediately to the opposite party, but opposite party said that it is not unusual. Thereafter, on next day i.e. on 05.06.2008 the complainant developed severe rashes and blisters on her entire body and therefore, she was immediately taken to opposite party, who diagnosed clinically on that basis to be Chickenpox. He, therefore, administered drug namely Acyclovir 250 mg to her through saline intravenous. However, opposite party before coming to the said diagnosis did not refer the complainant for any pathological test through recognised laboratory. No explanation is given by the opposite party for not obtaining any such pathological test before confirming diagnosis that the complainant was suffering from Chickenpox.
15. It is also seen that though the opposite party administered Acyclovir drug to the complainant from 05.06.2008 to 08.06.2008, there was no improvement in the health of the complainant. On the contrary, her health got deteriorated. The rashes, vesicles and blisters were not subsided but spread over her entire body. It also caused swelling over both eyes of the complainant and she was unable to open her eyes.
16. On 08.06.2008, the opposite party in discharge summary noted temperature of the complainant as 100o f. He also noted that Eye Ointment was applied in both eyes of the complainant. The opposite party recorded in discharge summary on 09.06.2008 that the relatives of the patient decided to move patient to Amravati and upon her discharge she was admitted to Punjabrao Deshmukh Medical College & Hospital. It is also recorded in that summary that on 10.06.2008 the patient was taken to Orange City Hospital at Nagpur.
17. The opposite party No.1 has not recorded in discharge summary of his hospital that the complainant was discharged from his hospital against his advice. It shows that the condition of the complainant was very critical on 09.06.2008 as the vesicles, blisters and rashes were spread on her body to a great extent and her both eyes were also adversely affected.
18. Moreover, the discharge card of Punjabrao Deshmukh Hospital & Research Centre, Amravati does not show that the complainant was suffering from Chickenpox. The diagnosis of the said hospital of Amravati is "Steven Johnson Syndrome", i.e. drug reaction. The said hospital while discharging the complainant observed that her condition was not satisfactory.
19. The complainant was then taken to higher centre namely Orange City Hospital & Research Institute at Nagpur for treatment. The said hospital under discharge summary diagnosed "Toxic Epidermal Necrolysis" i.e. drug reaction. The said hospital also has not diagnosed Chickenpox. The complainant was treated in that hospital from 10.06.2008 to 08.07.2008. Both hospitals namely Punjabrao Deshmukh Hospital & Research Centre, Amravati and Orange City Hospital & Research Institute, Nagpur noted in the discharge summary that the complainant was having skin lesions over her entire body with fever. Thus, there was no improvement in the condition of complainant when she was discharged by opposite party from his hospital on 08.06.2008.
20. Orange City Hospital & Research Institute, Nagpur issued separate certificate on 1.07.2008 stating that the complainant was suffering from "Toxic Epidermal Necrolysis (drug reaction) with related complications". Necessary treatment management within available resources was provided to her in that hospital and she was discharged on 08.07.2008.
21. The complainant was then taken to another higher centre namely L.V. Prasad Eye Institute of Hyderabad for treatment. She was admitted there and treated for long time. But she got no relief there. The said hospital in the discharge summary dtd. 10.09.2008 recorded diagnosis as "Steven Johnson Syndrome Sequelac in both eyes".
22. Dr. Anil Dhamorikar of Eye - Care, Laser & Phaco Surgery Center, Amravati on examination of complainant issued a certificate on 15.07.2009 which is also produced on record. He also certified that complainant is having severe dry eyes (Post Steven Johnson Syndrome) and she is totally blind and it could be due to drug reaction. He is expert in the field holding qualification as M.S.F.R.F.
23. The complainant was then taken to well known higher centre namely Sankara Nethralaya, Chennai on 23.01.2010. There also she did not get any relief after treatment.
24. It is also seen that on the application of complainant's advocate all medical case papers were referred by this Commission to the panel of doctors of All Indian Institute of Medical Sciences, (for short AIIMS) New Delhi for opinion. The panel of doctors examined the case papers of the complainant and also examined complainant and gave their expert opinion to this Commission on 28.09.2011. The panel of four expert doctors unanimously diagnosed the case of "Steven Johnson Syndrome with Limbal Stem Cell Deficiency with Symblepharon with Vascularised Corneal Opacity with Conjunctivalisation of the Cornea with Keratinisation".
25. The Medical Board of Genral Hospital, Amravati comprising of Civil Surgeon, Medical Officer & Resident Medical Officer on examination of complainant issued a certificate on 21.08.2009 which is placed on record. It also shows that complainant is suffering from S.T. Syndrome Keratin and she is visually disabled, having 100% permanent visual impairment.
26. Thus, none of the aforesaid hospitals and expert doctors, where the complainant was taken for examination and treatment, diagnosed Chickenpox. They unanimously diagnosed Steven Johnson Syndrome i.e. drug reaction.
27. The interrogatories were submitted to the aforesaid panel of doctors of AIIMS hospital by the opposite party, who had examined medical case papers & complainant and issued expert opinion which is placed on record. They submitted reply to those interrogatories which is also placed on record. The opinion, given by the said panel of doctors about diagnosis of "Steven Johnson Syndrome" is not challenged by the opposite party by putting interrogatories to them about said diagnosis. Thus, the opinion of the said expert doctors that the complainant was suffering from "Steven Johnson Syndrome" has gone unchallenged.
28. We, thus, find that when consistently almost all the expert doctors and hospitals referred to above other than opposite party have come with a specific diagnosis of "Steven Johnson Syndrome", that negatives the diagnosis of the opposite party of "Chickenpox".
29. The Hon'ble National Commission in the case of Vinubhai J Patel & Anr. Vs. Thakkar Kalpesh Kumar G & Ors., 2012(2) CPR 480 (NC) has observed that the treatment without proper diagnosis is medical negligence.
The Hon'ble National Commission in the case of Dr S K Jain Vs. Sahveer Singh, 2012(3) CPR 179 (NC) also observed that the Tretracycline injection was given without doing any test, which clearly shows that petitioner doctor was negligent, which caused drug reaction to the complainant.
In the case of Sanctoba Durlabhji Memorial Hospital & Medical Research Institute & Anr. Vs. Bhanwar Lal, 2012(2) CPR 158, it is observed that if proper treatment could have been given after correct diagnosis at initial stage, complainant would not have suffered 40% disability.
In the case of Arangamurugan ( Dr.) Vs. S Sakthivel, 2013(2) CPR 40 (T.N.), it is observed that doctor must undertake thorough investigation if no relief is seen from initial treatment.
30. In the instant case, the opposite party has not undertaken thorough investigation though the complainant got no relief during his treatment from 04.06.2008 to 08.06.2008. He treated the complainant without proper diagnosis. His diagnosis can be said to be totally wrong i.e. Chickenpox when aforesaid well known hospitals have not diagnosed Chickenpox and they diagnosed "Steven Johnson Syndrome (drug reaction)". Thus, the medical negligence is proved on the part of opposite party.
31. It is also the defence of the opposite party that the drug Acyclovir is very safe drug and it cannot have any such side effect or reaction on the body of the patient. In support of his submission he relied on the Text Book.
32. In our view, the opposite party had not only administered Acyclovir drug to the complainant but he had also given other medicines, which are referred to above, from 04.06.2008 to 08.06.2008. Therefore, the complainant suffered drug reaction & developed Vesicles, Blisters and rashes all over the body of the complainant. In our view, in such case, in the absence of any evidence to prove that the complainant had taken certain other medicines besides the medicines given to her by the opposite party, it can be presumed that due to those medicines administered by the opposite party to the complainant without any pathological test, the Steven Johnson Syndrome (drug reaction) was occurred. Thus, complainant lost vision of her both eyes due to drug reaction, as administered to her by opposite party. Moreover, the opposite party admittedly had not given any medicine or drug to the complainant as antidote on that drug reaction as per well established medical practice. On the contrary, he continued the same treatment, which he had given to the complainant before the said drug reaction. Therefore, it was gross medical negligence on the part of the opposite party, which resulted into a severe consequences i.e. loss of vision of both eyes of the complainant. Therefore, we hold that the aforesaid decisions relied on by the learned advocate of the opposite party are not applicable to the facts & circumstances of the present case as they are totally different from those of the present case.
33. The opposite party has relied on the evidence affidavits of three doctors referred to above. However, their affidavits are simply on the point that the drug Acyclovir is a correct treatment for Chickenpox and it has got no such adverse effect leading "Toxic Epidermal Necrolysis (Steven Johnson Syndrome)". However, we find that when aforesaid other hospitals consistently came to the conclusion that it was Steven Johnson Syndrome and not a Chickenpox, then opinion of the aforesaid three doctors, whose affidavits filed on record by the opposite party, cannot be of any assistance to the opposite party. Moreover, the opposite party has not placed any material on record to prove that due to consumption of certain other medicines or drugs by the complainant; she got reaction called as "Steven Johnson Syndrome". In the absence of any such material on record, we are inclined to hold that because of drug administered by the opposite party to the complainant, she got reaction called as Steven Johnson Syndrome and the opposite party cannot avoid his responsibility for the same.
34. Therefore, we hold that the opposite party is liable to pay reasonable compensation to the complainant. The complainant aged about 8 years lost her both eyes at her tender age due to medical negligence on the part of the opposite party. She was required to leave the school education. She is now totally dependent on her parents. The complainant has claimed total compensation of Rs.90.50 Lacs on various causes. However, considering loss of both eyes of the complainant at her tender age, due to gross medical negligence on the part of opposite party, we find that a lump sum compensation of Rs.25.00 Lacs would be just & proper to be imposed on the opposite party. Hence, we proceed to pass the following order.
ORDER i. The complaint is partly allowed. ii. The opposite party is directed to pay the complainant compensation of Rs.25.00 Lacs with interest @ 9% p.a. from the date of complaint i.e. from 14.09.2009 till its realisation of the same by the complainant. iii. The opposite party shall also pay the complainant Rs.20,000/- towards cost of complaint. iv. 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