National Consumer Disputes Redressal
Dr. M.P. Bhanumathi vs Augustine T.D. & Ors. on 19 March, 2013
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 17 OF 2010 (Against the order dated 30.06.2009 in OP No. 69/1998 of the Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram) Dr. M.P. Bhanumathi Paediatrician W/o Dr. K.K. Ramakrishnan Jith Cottage, Kelakam Kannur District, Kerala State Appellant Versus 1. Augustine T.D. S/o Devasya Thekkekulathumkara House Adakka thodu PO, Kannur District Kerala State 2. Thressiamma M.J. W/o Augustine T.D. Thekkekulathumkara House Adakka thodu PO, Kannur District Kerala State 3. Prasad Augustine S/o Augustine T.D., aged 11 years (minor rep. by his father & natural guardian Shri T.D. Augustine) Respondents BEFORE: HON'BLE MR. JUSTICE ASHOK BHAN, PRESIDENT HON'BLE MRS. VINEETA RAI, MEMBER HONBLE DR. S.M. KANTIKAR, MEMBER For Appellant : Mrs. Praseena Elizabeth Joseph, Adv. For Respondents : Mr. Shyam Padman, Advocate Pronounced on 19th March, 2013 ORDER
PER VINEETA RAI, MEMBER
1. This first appeal has been filed by Dr. M.P. Bhanumati, Opposite Party before the Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram (hereinafter referred to as the State Commission) and Appellant herein being aggrieved by the order of State Commission which had allowed the appeal of medical negligence filed by Respondents against the Appellant.
2. Respondents No. 1 and 2, who are father and mother respectively of Respondent No.3 (hereinafter referred to as the Patient) had taken their son (Patient) aged about 8 years on 14.09.1995 to Appellant, who was a Paediatrician, for treatment as he was suffering from fever, rashes in the mouth and cough. After examining him, Appellant opined that several children had been suffering from a similar fever and she gave Patient an injection and two sample tablets to be given in the morning and evening. Respondents were also asked to purchase some medicines. Respondents were not told the names of the injected medicine or the sample tablets given by the Appellant. Despite this medication, Patients condition deteriorated in the evening and he developed rashes all over the face and chest, followed by vomiting.
Patients eye also became infected with Conjunctivitis. He was, therefore, taken to Appellant next day on 15.09.1995 and Appellant again after examination stated that this was due to sultry climate and that the rashes would disappear within a few days. Because the condition of the Patient further worsened on 16.09.1995, Respondents took him to another Paediatrician at Iritty i.e. Dr. Devanand, who opined that the Patient was suffering from Meningo Cocciemia and should be taken to a hospital where expert doctors are available. Patient was, therefore, taken to Koyili Hospital, Kannur where he remained for about 4-5 hours, after which it was decided to take the Patient to Medical College Hospital, Kozhikode as per the advice of the doctors there. Patient was admitted to the Medical College Hospital, Kozhikode at 11.00 p.m. on 16.09.1995 and a Dermatologist, who subsequently examined him, diagnosed the disease as Stevens Johnson Syndrome, which usually occurs because of adverse reaction to a drug. The Dermatologist, therefore, advised Respondents to contact the Appellant to obtain details regarding the medicines administered to the Patient on 14.09.1995.
Appellant after some hesitation finally wrote the names of the medicines and stated that she had treated the child on 13.09.1995 whereas the medicines were actually administered on 14.09.1995.
The Doctors at the Medical College Hospital, Kozhikode informed Respondents that Appellant had not furnished the names of the actual medicines given to the Patient and had instead given the names of certain general medicines, which could not have caused the drug reaction. Although Respondents tried their best to ascertain the names of the actual medicines given but failed to do so. Patient remained in Medical College Hospital, Kozhikode till 09.10.1995, after which he was discharged for better specialized treatment for his eyes. He was subsequently given intensive treatment for his eyesight and other problems at Little Flower Hospital, Angamali and later at Christian Medical College Hospital, Vellore from 08.11.1995 to 08.12.1995. The doctors there stated that the Patient would live in a vegetative state and that there was no chance of his regaining his eyesight. Being aggrieved by the action of Appellant, who administered an injection and tablets to the Patient after which he developed a drug allergy leading to Stevens Johnson Syndrome, Respondents met the Appellant and requested for financial assistance for treatment of the Patient. According to the Respondents, Appellant admitted her mistake and stated that since she was insured with an Insurance Company to indemnify her for mistakes in her professional career, she would compensate them with Rs.6 Lakhs. However, she paid Respondents only a sum of Rs.1 Lakh in two installments of Rs.50,000/-. Respondent No.1 was also made to sign on some stamp papers. It was assured that the balance amount of Rs.5 Lakhs would be disbursed within six months. Despite this, no further payment was made. Being aggrieved, Respondents filed a complaint before the State Commission and requested that Appellant be directed to pay a compensation of Rs.15 Lakhs to Respondents for medical negligence and deficiency in service.
Since Rs.1 Lakh had already been paid, the Appellant may be directed to pay the remaining amount of Rs.14 Lakhs to the Respondents.
3. Appellant on being served filed a written rejoinder denying the allegations of medical negligence.
It was admitted that the Patient was brought to the Appellants clinic, which is attached to her residence, on 14.09.1995 and on medical examination of the Patient, it was noted that he was running a temperature of 102OF, there was watering from both eyes and rashes in the mouth, which could have been due to infection. A provisional diagnosis of Viral Fever was made and 0.5 ml. of Injection Avil was given to the Patient to control the rashes in the mouth. Patient was also given 2 tablets of Avil to take tablet twice daily, 6 tablets of Paracetamol to be taken thrice daily to control the Fever and a cough syrup for the dry cough. A prescription for an antibiotic Blumox to be purchased from outside was issued. Appellant received Rs.22/- being the cost of injection, medicines and consultation fee.
Patient was advised to be brought for review after two days and to be given liquid diet. On 15.09.1995 Patients fever had come down but there were some rashes in the body and Conjunctivitis was noticed. Since these did not warrant immediate hospitalization, Appellant gave injection B-Complex to control the lesions in the mouth and supportive therapy. Further, Gentamycin eyedrops were prescribed to control the eye infection.
Respondents were advised that further investigations would be required if the rashes were not controlled.
Thereafter Patient was never brought to the Appellant despite specific advice. It was denied that the medicines prescribed by Appellant caused Stevens Johnson Syndrome as the said disease takes at least one week after the administration of drugs to manifest itself whereas the Patients condition was diagnosed by the Dermatologist as Stevens Johnson Syndrome within 4 days of the Patient being administered the medicines by Appellant. Further, as per medical literature on the subject, Stevens Johnson Syndrome can also occur in a Patient due to other causes/viruses. Appellant stated that there is no Hypersensitivity test in respect of oral medication. She had taken the precaution of ascertaining from Respondents whether Patient was allergic to any drug before prescribing the same. Appellant admitted that Respondents met her and being moved by the said plight of their son, purely on humanitarian and compassionate grounds and not as an admission of any medical negligence or deficiency in service and on persuasion by some local influential people, she agreed to pay Rs.3 Lakhs in terms of a written agreement dated 25.03.1996 voluntarily signed between the parties in the presence of witnesses.
4. The State Commission after hearing the parties and on the basis of evidence produced before it concluded that deficiency by the Appellant in the treatment of the Patient was established. The relevant parts of the order of the State Commission are reproduced:
14. (It) is to be found that the 3rd complainant was taken to the opposite party for fever and he was treated for fever only by the opposite party. It is also noted that the 3rd complainant had no other ailments at the time when he was taken to the opposite party on 14.09.1995. It is also found that the opposite party has not maintained proper record for having kept the medicines she used to give to the patients. Though it is not our area of concern, that also contributes to the nature and conduct of the opposite party. It is also seen that though she as observed the changes that occurred to the patient after giving the medicines, she had not referred the patient to any other centre for better treatment and that she is not fully conversant with the symptoms of Stevens Johnson Syndrome. She has also not given a clear summary of treatment to the first complainant for the subsequent treatment of the 3rd complainant. All these would lead to the indelible impression that there was some sort of deficiency on the part of the opposite party in the treatment of the 3rd complainant.
The State Commission also concluded that though Appellant had promised to pay a compensation of Rs.3 Lakhs to the Respondents, she only paid Rs.1 Lakh. The State Commission, therefore, holding that a compensation of Rs.5 Lakhs for the deficiency in service on the part of Appellant in the treatment of Patient, who had passed away on 29.04.2002, would be just and appropriate in the instant case and since the Respondents had already received Rs.1 Lakh, directed the Appellant to pay a further sum of Rs.4 Lakhs within a period of two months from the date of receipt of a copy of the order, failing which the amount would carry interest @ 12% per annum from the date of default till the date of payment.
In addition, Rs.5000/- were awarded as costs.
5. Being aggrieved by the order of State Commission, the present first appeal has been filed.
6. Learned Counsels for both parties made oral submissions.
7. Counsel for the Appellant contended that the State Commission erred in concluding that there was medical negligence on the part of the Appellant and also that though the Appellant had assured to pay Rs.3 Lakhs to the Respondents, she paid only Rs.1 Lakh. It was stated that the Patient was carefully examined by the Appellant when he was brought to her clinic on 14.09.1995 with complaints of fever, cough and rashes in the mouth. The medicines given for the same were as per standard treatment in cases of suspected Viral Fever and when the Patient was brought on the next day with complaints of Conjunctivitis, he was prescribed an eye drop and specifically asked to come for follow up review treatment after two days, which he failed to do and instead went to other doctors/hospitals, who also did not diagnose the illness as Stevens Johnson Syndrome till 18.09.1995. As per medical literature on the subject, the incubation period for this disease is at least one week and, therefore, it is apparent that the drug prescribed 4 days prior to the diagnosis could not have caused the disease.
Learned counsel for the Appellant further stated that from the deposition of 3 credible independent witnesses, 2 of whom were school teachers and 1 a lawyer, before the State Commission, it was established that the Appellant had agreed to pay Rs.3 Lakhs at the instance of certain Panchayat Members and other community leaders purely on compassionate grounds and a written agreement was drawn up by one of these witnesses i.e. RW-4, who was a lawyer. Further, from their deposition it is clear that earlier Respondent No.1 had agreed to receive the money in installments but later he insisted that he should be paid in lump sum. All witnesses have confirmed that this amount had been paid and received by Respondent No.1 and that he had put his signature on the agreement pertaining to this payment voluntarily and after reading it. Unfortunately, the State Commission failed to take note of this important evidence and allowed Respondents baseless complaint.
8. Counsel for the Respondents on the other hand reiterated that Appellant had agreed to pay Rs.3 Lakhs as compensation is by itself proof that she was guilty of deficiency in the Patients treatment. Later she went back on her words and paid only Rs.1 Lakh in two installments of Rs.50,000/- each and did not pay the remaining amount.
The 3 witnesses who deposed before the State Commission to the contrary had given wrong statements at the instance of the Appellant and further one of these witnesses (RW-4) had stated that the money that was handed over was not counted in his presence and, therefore, the contention of Counsel for the Appellant that all 3 witnesses had deposed that Appellant had paid Rs.3 Lakhs in their presence is not correct.
Further, Respondents in fact are entitled to a much higher compensation keeping in view Appellants deficiency in service in prescribing irrational medication and not advising proper follow up because of which all the Respondents, particularly the Patient, had to undergo extreme mental agony and suffering.
9. We have considered the submissions made by learned Counsels for both parties and have also gone through the evidence on record.
It is not in dispute that Respondents had taken their son (Respondent No.3) to Appellant for treatment of cough, fever and rashes in the mouth, for which he was administered an injection and given oral medicines, including antibiotics, following a preliminary diagnosis of Viral Fever made by the Appellant. Appellants contention that immediate diagnosis of this disease is difficult because in the initial stages its symptoms are non-specific such as fever, cough, rashes, headache etc., which also occur in other viral infections, is, we note, also confirmed by the medical literature on the subject*.
(*Source : (1)www.en.wikipedia.org/wiki/Stevens%E2%80%93Johnson_syndrome (2)www.skinassn.org/stevens-johnson-syndrome-symptoms-treatment.html ) It is perhaps because of this that other doctors who saw the Patient could not also immediately diagnose the disease from which the Patient was suffering and the Appellant cannot be faulted for having prescribed medicines as per normal standard protocols in respect of patients with such symptoms.
Respondents contention in his complaint that actually some other medicines were prescribed and not those stated by the Appellant is not proved by any credible evidence by the Respondents, on whom there was onus to do so. It is further worth noting that although Respondents were specifically advised to bring the Patient for follow-up treatment 2 days later, they failed to so for which Appellant cannot be held responsible. Therefore, the observation of the State Commission that the Appellant failed in referring the Patient to a specialist is not justified because there is every possibility that she may have done so if the Patient had come for the follow-up visit with worsening symptoms. In view of these facts, we are unable to accept the findings of the State Commission that there was deficiency in service in giving wrong treatment to the Patient and also not referring him to a specialist; in fact Appellant may have done so if the Respondents had brought the Patient to her after 2 days.
10. Respondents contention that Appellant had agreed to pay Rs.3 Lakhs and later resiled and paid only Rs.1 Lakh has also not been proved by them because there is evidence of 3 independent witnesses, namely, two school teachers and one lawyer, who had clearly deposed that the entire amount of Rs.3 Lakhs was paid in their presence as also other members of the community by the Appellant to Respondent No.1 following the insistence of Respondent No.1 that the entire money should be paid in lump sum. Respondents contention that the witnesses were biased and had given evidence on Appellants behalf and, therefore, are not independent witnesses is also not proved because it has come in evidence and not disputed that the witnesses were well-known to the Respondents and in fact one of them had been teacher of Respondent No.1. Respondents contention that they were forced to sign the agreement also appears to be incorrect because all the witnesses have stated that Respondent No.1 had signed it voluntarily after reading it in the presence of a large number of persons and the agreement was also signed by two Panchayat Members as witnesses. We are, therefore, unable to accept the findings of the State Commission that Respondents had received only Rs.1 Lakh from the Appellant and that Respondent No.1 was forced to sign the agreement.
11. To sum up, the finding of the State Commission that there was deficiency on the part of the Appellant in the treatment of the Patient and further that Appellant had paid only Rs.1 Lakh instead of Rs.3 Lakhs to the Respondents is not established by the evidence on record and we are, therefore, unable to sustain the order of the State Commission and, therefore, set aside the same.
This first appeal is accordingly accepted. Counsel for the Appellant states that as directed by the National Commission vide order dated 28.01.2010, a sum of Rs.2 Lakhs over and above the agreed amount of compensation of Rs.3 Lakhs had also been deposited in the State Commission and released to the Respondents. If that is so, the Appellant is at liberty to recover the said amount in accordance with law.
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(ASHOK BHAN, J.) PRESIDENT Sd/-
(VINEETA RAI) MEMBER Sd/-
(DR. S.M. KANTIKAR) MEMBER Mukesh