State Consumer Disputes Redressal Commission
Dr. V. Palaniappan Consultant Neuro ... vs Kumar Srinivas S/O. Late Srinivasan 26, ... on 31 May, 2011
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI Present Hon'ble Thiru Justice M. THANIKACHALAM PRESIDENT Thiru J. JAYARAM, M.A.,B.L., JUDICIAL MEMEBR F.A.NO.711/2008 (Against order in C.C.NO.115/2004 on the file of the DCDRF, Chennai (North) DATED THIS THE 31st DAY OF MAY 2011 1.
Dr. V. Palaniappan Consultant Neuro Pschiatrist 972, Poonamallee High Road Opp: to Egmore Bridge Chennai 600 084
2. M/s. Premier Lab & X-Ray Rep. by Janardhanan Crescent Court 963, Poonamallee High Road Chennai- 600 084 Appellants/Opposite parties Vs. Kumar Srinivas S/o. Late Srinivasan 26, 2nd Main Road Srinivasa Nagar, Kolathur Chennai- 600 099 Respondent/ Complainant The Respondent as Complainant filed a complaint before the District Forum against the opposite parties, praying for a direction to pay a sum of Rs.15 lakhs as compensation, alongwith cost of Rs.5000/-. The District Forum allowed the complaint. Against the said order, this appeal is preferred praying to set aside the order of the District Forum dt.18.8.2008 in COP No.115/2004.
This petition coming before us for hearing finally on 18.5.2011. Upon hearing the arguments of the counsel on both sides, perusing the material papers on record, lower court records, as well as the order passed by the District Forum, this commission made the following order:
Counsel for the Appellants/Opposite parties:
M/s. T.K. BhaskarG. Karthikeyan Counsel for the Respondents/ Complainant: Mr. S. Kanmani Annamalai M. THANIKACHALAM J, PRESIDENT
1. Opposite parties are the appellants.
2. The respondent, in this appeal as complainant, approached the District Forum, claiming a sum of Rs.15 lakhs, against the opposite parties, towards damages and compensation, alleging negligent and improper treatment, on the following grounds (in brief).
3. The complainant being a smoker, suddenly stopped that habit, on the advise of his family doctor Dr. Devrajan, which resulted development of mild giddiness, restlessness and sleeplessness, for which, as advised by the family doctor, he approached the 1st opposite party, a leading Neuro Psychiatrist, for treatment on 25.8.2003, at about 11.00 a.m. The 1st opposite party advised the complainant to take out a brain mapping scan, from the 2nd opposite party, and accordingly, paying a total sum of Rs.800/-, EEG brain mapping was taken, which was handed over to the 1st opposite party. On the basis of the EEG done, even without examining the complainant, the 1st opposite party prescribed certain tablets for 30 days, advising to come for review, on 24.9.2003, further advising to take the pills, without any break, handing over EEG mapping also.
4. Based upon the prescription, the complainant purchased the medicines, consumed as per the advise, which caused sudden blurred vision, drowsiness and tiredness. When these facts were reported to the 1st opposite party, he informed that the drugs consumed by the complainant would have that effect for 3 to 4 days, and thereafter everything will be alright, advising not to stop the medicine, further informing he would not be available between 31.8.2003 to 6.9.2003.
5. The complainant, after taking the tablets continuously for a period of one week, suffered heavy sweating, immediate stools, drowsiness, sedated condition, as well withdrawal of hydrosol, including shivering all over the body, with urinal irrigation. When the complainant attempted to contact the 1st opposite party, it was informed that he had gone abroad, requesting the complainant to contact one Dr. Nambi, who was unable to be contacted, despite effort, which was also reported to Dr. T.V. Devaraj, who advised the complainant, to contact Dr.Muthukrishnan at Apollo Hospital. The complainant having no option, continued the medicine, awaiting for the arrival of the 1st opposite party.
But on 15.9.2003, the complainant totally collapsed by the effect of the medicine, and therefore he was rushed to Sri Ramachandra Hospital, Porur, where the problem was diagnosed as Neuro Tremor, after proper investigation. The complainant had shown the EEG brain mapping, and on seeing the same, the doctors have questioned about the analytical report, which was not given by the 2nd opposite party, which they ought to have given, thereby the 2nd opposite party committed deficiency, preceded by the negligent act, having received Rs.800/- towards charges.
6. After treatment from Sri Ramachandra Hospital, the life of the complainant was saved, and the complainant was advised to continue the medicine till February 2004, thereby incurring monetary loss. Neuro Tremor was caused to the complainant, in view of the negligent and improper manner of treatment given by the 1st opposite party, completely affecting the entire nervous system of the complainant. The problems suffered by the complainant was reported to the 1st opposite party, for which he insisted the complainant, to bring the prescription, thereby not remembering the patient as well as medicine, prescribed by him. Because of the improper treatment, given by the 1st opposite party, in the absence of analytical report, given for brain mapping, the complainant who was doing business, unable to continue the same, resulting monetary loss, and whenever he had gone to the medical shop to purchase medicine, he was looked down, as if he is suffering mental illness, thereby causing mental agony. Though the loss and damages, caused to the complainant, because of the deficiencies committed by the opposite parties, is incapable of valuation, considering the suffering experienced by the complainant, it is quantified at RS.15 lakhs, which should be directed to be paid by the opposite parties, jointly and severally, alongwith cost of RS.15000/-.
Hence the complaint.
7. The 1st opposite party, admitting the consultation by the complainant with him on 25.8.2003, as well admitting that at his request brain mapping, i.e., EEG, was taken by the 2nd opposite party, resisted the complaint, contending interalia, that it is the normal practice for him to get the EEG report, without analysys report, and he himself will record on seeing the map, that before preparing the analytical report, the complainant had taken map, thereby he was unable to give the analytical report, (thereby in a way relieving the 2nd opposite party). It is the further case of the 1st opposite party, that after due examination physically , clinically he had prescribed drugs Sertraline, Mirtazapine, approved by the drug controller of India, which are meant for the disease, the complainant was suffering from and dosage prescribed was within normal range also, further contending that he had informed the complainant clearly, these drugs might produce mild drowsiness, tiredness, mild dizziness, etc., initially for about 3 to 4 days, then it will be reduced gradually. The 1st opposite party also informed that after purchasing the medicine, it should be shown to him for verification, which the complainant failed.
8. On 26.8.2003, the complainant informed over phone, about some problems, and this opposite party advised to stop the drugs immediately, and infact a computer printout was given, disclosing the effects of the drugs, and dos and donts.
Therefore it is absolutely false to allege that this opposite party requested the complainant, to continue the medicine, without stopping despite the problem. Even as pleaded in the complaint, when the complainant reported the problem to his family doctor, he had advised to consult Dr. Muthukrishnan, a psychiatrist at Apollo Hospital, which he failed, for that the opposite parties cannot be blamed. The treatment given by this opposite party, to the complainant was perfect, and he has not done any mistake, and in fact he has taken absolute care, to safeguard the complainants health, and life being as a renowned and qualified doctor.
9. This opposite party had prescribed the medicines viz.
1. Lindep 50 Mg. (Sertraline given as anti depressant)
2. Mirt 30Mg.(Mirtrazapine given as anti depressant and anti anxiety)
3. Proto, 20 Mg. (Proponolol given as anti anxiety)
4. Lpam 2 Mg. (Lorazepam given as sedative at bed time) Out of which one and two are the main drugs and other drugs were given, for the sleep during night. There is absolutely no averment in the entire complaint, regarding the alleged negligence, said to have been committed by this opposite party, and as such it should be construed, there was no deficiency also. Further it is not the case of the complainant throughout, that for the service rendered by this opposite party, he had paid any consideration, and this being the position, the jurisdiction of the consumer forum is not attracted. For the above reasons, the complaint deserves to be dismissed, since for the exorbitant, baseless claim, the 1st opposite party is not answerable.
10. The 2nd opposite party, admitting the EEG, taken by them, as well as receipt of Rs.800/-, would contend further, that EEG was normal, and at any point of time they have not committed any deficiency, since medicines were prescribed by he 1st opposite party, praying for the dismissal of the complaint.
11. The District Forum, by the order dt.18.8.2008, while assessing 51 documents filed on behalf of the complainant, as well as the proof affidavit of the parties, came to the conclusion, that the 2nd opposite party had committed deficiency in service, since they failed to supply analytical report, after taking EEG. It is the further conclusion of the District Forum, based upon Ex.A51, which we will discuss infra, that the medicine, given by the 1st opposite party, are not required to be given to the patient like complainant, and in this view, it has recorded a finding, that the 1st opposite party, while treating the complainant, not only prescribed wrong medicine, or has given over dose, which should be construed as deficiency of service. No finding has been given, as seen from the judgement, that because of the medicine prescribed by the 1st opposite party, consumed by the complainant, he was affected by neuro tremor, which is the case of the complainant. The complainant without quantifying the damages, under various heads, claimed a consolidated sum of RS.15 lakhs, which was granted with cost of Rs.15000/-, which is under challenge before us on various grounds.
12. The complainant was a smoker (chain smoker), is an admitted fact. It is the case of the opposite parties, that the complainant was addicted to alcohol also. Further, as pleaded by the 1st opposite party, which is in a way admitted by the complainant, the business run by the complainant was closed due to loss in business or otherwise. Because of the sudden stoppage of smoking, as well alcohol (though not conceded), as admitted by the complainant, he had the problem of drowsiness, giddiness, etc., for which he consulted the 1st opposite party, a renowned consultant neuro psychiatrist, that too as per the advise given by his family doctor on 25.8.2003.
The qualification of the 1st opposite party, is not under shadow, and even as pleaded in the written version, he appears to be a fully qualified, matured neuro psychiatrist, worked in various hospitals, professor in medicine also, and therefore there is nothing wrong, on the part of the complainant in approaching the 1st opposite party, for treatment.
13. Admittedly, the 1st opposite party, when the complainant approached him for treatment, requested him to take EEG, from the 2nd opposite party, and accordingly EEG was taken, as seen from Ex.A1. It is the usual practice of EEG centre, to give analysis report also, and that is why there is a column also in the report. In this case, the 2nd opposite party has not given analysis report, which is faulted as if the 2nd opposite party committed deficiency in service, and therefore they are also liable to pay a sum of RS.15 lakhs, jointly alongwith 1st opposite party. Before going into the treatment given by the 1st opposite party, we feel the case against the 2nd opposite party, can be disposed, very easily and relieving him also, because of the stand taken by the 1st opposite party, not only in the written version, but also in the reply notice. The 1st opposite party, being a qualified person, wanted to study EEG, by himself, instead of impression or opinion given by the radiologist or the doctor concerned. Therefore according to him, as averred in the written version, EEG mapping alone was given, and report was not obtained. Therefore, who has taken EEG, at the instance of the 1st opposite party, his failure to supply analysis report, cannot be taken, as wrong or deficiency in service. It is the common case of all the parties at present, that EEG was normal.
Therefore, it is not possible to say, under certain suspicious circumstances, or presuming bad impression, medicine was prescribed. So, the act of the 2nd opposite party in not giving the analysis report alongwith EEG, cannot be taken as deficiency in service, in this case, when the 1st opposite party owned the entire responsibility, even before the case was filed. True, a patient is entitled to know, since paid, what is the result of EEG. In this case, that was not made available.
Therefore, deficiency was attributed, for which we are having an acceptable explanation. According to 1st opposite party, it is his normal practice, to give the analysis report by himself, for the EEG recording of the patients referred by him, and he would handover to the patient, the report on the next day. But in this case, mapping was taken away by the complainant, on the day itself, and therefore he was unable to record the analysis report, which appears to be correct, in view of the admitted fact, the original EEG was produced by the complainant, and even admitted by him, it was with him from the date of taking, whether it was given by the 1st opposite party or taken away by him, as the case may be. Therefore, when the 2nd opposite party has not played any role, for the ill health of the complaint, or for the prescription of the alleged wrong medicine, followed by other complications, we feel it is impossible to fix any culpability, upon the 2nd opposite party, making him liable for compensation, that too, to the extent of RS.15 lakhs, as erroneously, incorrectly, imaginatively, done by the District Forum.
14. The learned counsel for the appellant, would contend that the consumer forum cannot have jurisdiction, even as per the pleadings in the complaint. Sec.2(1)(d) of the Consumer Protection Act defines consumer and it says a person, who hires or avails of any service, for consideration, paid or to be paid, alone will come, within the meaning of consumer, as well the service provider, who had received the consideration. Thus as per the definition, to exercise jurisdiction, in this kind of service, the person who claims that he availed the service of another, should have paid consideration. It is the dictum of the Apex Court also, in Indian Medical Association Vs. V.P.Shantha & Ors., reported in III (1995) CPJ 1 (SC). When the treatment was given free of charge, that will not come within the meaning of service, which appears to be the case here, as per pleadings. Since our effort to find out any allegation regarding the payment of consideration for availing service ended in vain, and this is also the defense, as seen from the written version of the 1st opposite party in paragraph 25(2). Even after the filing the written version also, the complainant has not stated, that the 1st opposite party agreed to receive consideration at later point of time, or he promised to do so, or he paid the fees or so. This being the position, the complainant who availed the service of the 1st opposite party, free of charge, cannot be termed as a consumer, and the 1st opposite party also, cannot be labeled as service provider, and in this view, the consumer forum cannot have jurisdiction, and on this ground, the complaint is liable to be dismissed, which was not at all considered by the District Forum, despite a specific plea. Assuming the forum has jurisdiction, now let us see the case on merit also instead of technicalities.
15. Ex.A43 is the prescription given by the 1st opposite party, to the complainant on 25.8.2003, wherein he prescribed the following medicines
1. Lindep 50 Mg.
2. Mirt 30Mg
3. Proto, 20 Mg.
4. Lpam 2 Mg.
It is specific case of the complainant, after consuming the above said tablets, especially 1 and 2, instead of improvement, he suffered a lot, resulting neuro tremor. Therefore, it is for the complainant to make out a case initially, that these medicines alone caused neuro tremor, or it had caused urinal irrigation, drowsiness, sweating, immediate tools, etc., as repeatedly pleaded in the complaint, for which we would say practically, there is no acceptable evidence. But unfortunately, the District Forum relied on Ex.A51 a letter addressed by one Dr.Srinivas Selvakumaran, to the complainant, on 26.3.2004. Before going to that document, whether it could be relied on or not, let us see, the medicine prescribed. It is admitted by the 1st opposite party himself, that for the disease, the complainant was suffering the drugs required are Sertraline and Mirtrazapine, which are recognized/approved by the Drug Controller of India, not in dispute. Even the learned counsel for the complainant, also submitted that the dosage was heavily given, but he has not faulted the prescription by itself.
Therefore in prescribing Lindep and Mirt, which comes under the above drugs cannot be faulted. As seen from the medical literature also, it is seen for adults giving 25 mg. 3 to 4 times daily, was recommended. It is also further stated under the heading Sertraline depression: Initialy 50 mg OD, if the patient is not responding, increased in 50 mg., increment at intervals of not less than one week, upto a maximum of 200 mg. daily. Therefore, the prescription of this kind of medicine 50 mg. twice, and 30 mg. once, cannot be taken as excessive dosage, or wrong prescription, since these medicines, are meant for depression, which also will have side effect, admittedly.
16. The complainant though has not accepted the instructions given by the 1st opposite party, regarding the taking of medicine, by the acceptable proof affidavit, the 1st opposite party made out a case, that he should have instructed the complainant, that these drugs might produce mild drowsiness, tiredness, and mild dizziness initially, advising further, if it continuous, stopping the medicine also. A renown qualified Neuro Psychiatrist viz. the 1st opposite party, as contended by the complainant, would not have left the patient to consume tablets, unmindful of the consequences. In this way alone, as pleaded by the 1st opposite party, he should have given the print out also, as seen from Ex.A46, under his letter pad, which says when these drugs are used initially, some patients may have side effects like dryness of mouth, mild tremors of hands, restlessness, dizziness, nausea, drowsiness, excessive sleep for 3-4 days which will subside in due course. If you are not able to tolerate even these mild side effects or if you have same or other side effects in severe form, or if the side effects last for more than 5 or six days, please contact your psychiatrist immediately. Even as per the case of the complainant, when he had countered with problem, as reported in the literature, he contacted his family doctor, who advised him to contact Dr. Muthkrishnan of Appollo Hospital, which he failed. If really the complainant had suffered, so badly, atleast as per the advise given by the family doctor, he should have contacted Dr.Muthurksihanan and should have stopped the medicine, approached the doctor, as per the instructions given under the heading for your kind attention. The complainant being an educated person, knowing the consequences, despite problem, has pleaded, had continued the medicine, if so he has to suffer, for which the 1st opposite party, cannot be held responsible.
As a prudent doctor, having the care of the patient in mind, in our considered opinion, he should have advised the complainant, giving the instructions also, and therefore when the complainant had noticed some adverse effect or side effect, he should have stopped the medicine forthwith, if not we cannot fix the negligence or deficiency in service upon the 1st opposite party.
17. It is the well settled principle, when there may be more than one course or way of treatment, advisable for treating a patient, the courts should be very slow cautious, in attributing negligence, on the part of the doctor, as held by the Apex Court, in Achutrao Haribhau Khodwa and Others Vs. State of Maharashtra and others in Civil Appeal No.3318/1979, wherein it is the dictum of the Apex Court The skill of medical practitioners differs from doctor to doctor. The nature of the profession is such that there may be more than one course of treatment which may be advisable for treating a patient. Courts would indeed be slow in attributing negligence on the part of a doctor if he has performed his duties to the best of his ability and with due care and caution. Medical opinion may differ with regard to the course of action to be taken by a doctor treating a patient, but as long as a doctor acts in a manner which is acceptable to the medical profession and the court finds that he has attended on the patient with due care skill and diligence and if the patient still does not survive or suffers a permanent ailment, it would be difficult to hold the doctor be guilty of negligence.
18. In Jacob Mathew case also, the Apex Court while considering the medical negligence has held that a medical practitioner was not to be held liable simply because things went wrong from mischance or misadventure or through an error of judgement in choosing one reasonable course of treatment in preference of another. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
Further it is the dictum of the Apex Court, based upon the decision of the House of Lords, one opinion cannot be found fault, when the same kind of opinion is available, from the competent other doctors. In this view, if any doctor, who certified, as if the medicine prescribed by the 1st opposite party was not proper, or for the complainant, this kind of medicine would not have been prescribed, the forum cannot conclude on that basis alone, the 1st opposite party had committed deficiency in service, which is the mistake committed by the District Forum, as seen from the order.
19. The initial burden of proof, to prove the medical negligence, rest on the shoulders of the complainant, on discharge, than the burden can be shifted to the head of the 1st opposite party. Here in order to discharge this duty, aid was sought from Ex.A51, a letter as said above, addressed by a doctor, to the complainant, probably at the request of the complainant. This document does not indicate, that the complainant was examined by the doctor, who issued Ex.A51. Only upon the perusal of the letter, as well as prescription EEG, Dr. Srinivas Selva Kumaran, a qualified consultant physiatrist, less than the 1st opposite party, opined that he would not have recommended or prescribed the medicines prescribed by the 1st opposite party, which cannot be taken as expert opinion, as incorrectly recorded by the District Forum. The said Dr. Srinivas Selva Kumaran, also has not filed proof affidavit, and he has not relied on any medical literature also.
When this is not an admissible evidence, as expert opinion the District Forum has erroneously come to the conclusion, since Ex.A51 is not challenged, accepted the same, which is in our opinion, not legally sound. As pointed out supra, when there are two opinions, or two ways of treatment, and when one was followed, which should be recognized as correct procedure, not otherwise faulted as deviation of procedure recovnised, if anything had happened by chance, as ruled by the Apex Court, that cannot be treated as medical negligence.
Therefore, on the basis of Ex.A51, we are unable to say that the prescription given by the 1st opposite party to the complainant, for the disease suffered, was incorrect or unwanted, or which alone caused neuro tremor.
20. The complainant even as per the averments in the complaint, had not approached the doctor, despite problem, admittedly taken to the hospital on 15.9.2003, as evidenced by Ex.A3, where he was treated. In the case records, also we find no entry or observation, that the complainant suffered the dizziness or drowsiness or anyother problems, because of taking of medicine prescribed by the 1st complainant lindep and Mirt alone. No affidavit from Dr. Velmurugan, also filed, to find fault with the treatment given by the 1st opposite party to the complainant. Thus we find practically, nil evidence to prove the alleged medical negligence, or suffering of the complainant, only pursuant to the taking of the medicine, prescribed by the 1st complainant.
In the absence of any such proof, awarding of compensation of RS.15 lakhs, is beyond our imagination and we are unable to endorse the finding of the District Forum. For the above said reasons, we conclude the appeal is meritorious, liable to be accepted.
21. In the result, the appeal is allowed, setting aside the order of the District Forum in CC.No.115/2004 dt.18.8.2008, and the complaint is dismissed. There will be no order as to cost throughout.
Registry is directed to handover the Fixed Deposit Receipt, made by way of mandatory deposit, to the appellant, duly discharged.
J. JAYARAM M. THANIKACHALAM JUDICIAL MEMBER PRESIDENT INDEX : YES / NO Rsh/d/mtj/FB/ Medical