National Consumer Disputes Redressal
Dr. Sarbajit Singh & Anr. vs Chandra Prakash Prasad on 3 June, 2022
Author: R.K. Agrawal
Bench: R.K. Agrawal
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 3002 OF 2010 (Against the Order dated 28/06/2010 in Appeal No. 140/2010 of the State Commission West Bengal) 1. CHANDRA PRAKASH PRASAD 288/283, G.T. Road (South), P.S.- Shibpur Howrah West Bengal ...........Petitioner(s) Versus 1. DR. SARBAJIT SINGH & ANR. S.M.R.I. (Private Nrusing Home), 263/3, G.T. Road, P.S.- Shibpur Howrah West Bengal 2. DINESH SINGH, S/O. SARBAJIT SINGH, THE OWNER OF S.M.R.I. (PRIVATE NURSING HOME) 263/3, G.T. Road, P.S.- Shibpur Howrah West Bengal ...........Respondent(s) REVISION PETITION NO. 256 OF 2011 (Against the Order dated 28/06/2010 in Appeal No. 140/2010 of the State Commission West Bengal) 1. DR. SARBAJIT SINGH & ANR. 263/3, G.T. Road (South), Police Station Shibpu Howrah - 711102 West Bengal 2. SHRI DINESH SINGH, S/O. DR, SARBAJIT SINGH (DECEASED) THROUGH LRS, 1. NEETA SINGH, W/O. DINESH SINGH, R/O. 263/3, G.T. ROAD(SOUTH) SIBPUR
Howrah - 711102 West Bengal 3. 2. NIDHI SINGH, D/O. DINESH SINGH, R/O. 263/3, G.T. ROAD(SOUTH) SIBPUR
HOWRAH-711102
WEST BENGAL 4. 3. NIKHIL SINGH S/O. DINESH SINGH, R/O. 263/3, G.T. ROAD(SOUTH) SIBPUR
HOWRAH-711102
WEST BENGAL ...........Petitioner(s) Versus 1. CHANDRA PRAKASH PRASAD 288/283, G.T. Road (South), Police Station Shibpur Howrah - 711102 West Bengal 2. . . 3. . . 4. CHANDRA PRAKASH PRASAD S/O. LT. CHANDRA DEO PRASAD, 288/283, G.T. ROAD, SOUTH POLICE STATION SHIBPUR DISTRICT-HOWRAH-711102 WEST BENGAL ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE R.K. AGRAWAL,PRESIDENT HON'BLE DR. S.M. KANTIKAR,MEMBER HON'BLE MR. BINOY KUMAR,MEMBER
For the Petitioner : Appeared at the time of arguments
In R.P. No.3002/2010
For the Petitioner : Mr. Soumitra Chatterjee, Advocate
For the Respondents : Mr. Rakesh Kumar Singh, Advocate For the Respondent : In R.P. No.256/2011
For the Petitioners : Mr. Rakesh Kumar Singh, Advocate
For the Respondent : Mr. Soumitra Chatterjee, Advocate
Dated : 03 Jun 2022 ORDER
ORDER
PRONOUNCED BY DR. S. M. KANTIKAR, MEMBER FOR MR. JUSTICE R. K. AGRAWAL, PRESIDENT & HIMSELF
1. This Order shall decide two Revision Petitions, one filed by the Complainant and other by the doctor against the Order dated 28.06.2010 of the State Commission in FA/140/2010.
2. Brief facts relevant to this revision petition that on 4th January, 2007, the Complainant's daughter fell down while playing and started getting convulsions. She was immediately taken to the Singh Medicare Research Institute, in short, SMRI, a private nursing home, at about 9.15/9.20 a.m. wherein she was given three injections in succession i.e. Calmpose, Decadron and Monocef. It was alleged that within 5 minutes after the injections, the patient became inert and seeing the condition of the patient, as advised by the OP-1 the girl was taken to the Howrah General Hospital where she was declared dead. Being aggrieved by the death, the father of deceased filed the Consumer Complaint before the District Forum, Kolkata.
3. The District Forum allowed the Complaint and awarded Rs. 10,00,000/- with cost of litigation of Rs. 20,000/-.
4. The State Commission allowed the Appeal filed by the Opposite Party and dismissed the Complaint.
5. Being aggrieved the Complainant filed the R.P. No.3002/2010 and the Opposite Party - Dr. Sarabjit Singh filed R.P. No.256/2011.
6. We have heard the arguments from both the sides and perused the record on file inter-alia the Orders of both the fora.
7. From the evidence on record careful look on the chronology of events are more vital in the instant case.
The complainant stated that, on 4.1.22007 his daughter (patient) had fall on ground and took to nearby nursing home of OP-2 at 9.15-9.20 am.
The OP-1 is senior Homeopathy doctors (about 88 years), he stated that it was emergency the patient (girl) suffered head injury and convulsions. For the emergency First Aid treatment took telephonic instructions from their Allopathic doctor Dr.S.K.Majhi. Accordingly, three injections (Calmpose, Decadron & Monocef) were given and due to serious condition, the patient was referred to Howrah General Hospital.
The medical record of Howrah GH revealed, she was admitted at 10.22 am, and Dr. A. Ghosh diagnosed it as ?Head Injury Gasping Stage [Gasping-Convulsed effort to catch breath].
8. On the basis of paragraph (7), it is evident that it was an emergency, and though the Opposite Party No.1 was a Homeopathy doctor, on his own did not administer the injections, but in the emergency he took telephonic advice of Dr. Maji an allopathic doctor. Therefore, we don't think that it was the act of medical negligence. Moreover, it is pertinent that the three medicines are commonly used during treatment of emergency head injury. The advice of Allopathic Dr.Mahji under such circumstances was neither any deviation from standard of practice nor any negligence per se. The condition of patient deteriorated she became unconscious was due to head injury and not after the administration of 3 injections. The OP-1 acted in his ethical obligation during the emergent situation.
9. The question before us that, If the doctor is off the duty, then whether the he has a moral or ethical responsibility to render first aid in emergency to the best of his ability?
A medical emergency is a sudden, unforeseen injury, illness or complication that requires immediate or prompt treatment to save life or prevent further injury, pain or distress. There is always an ethical obligation as a doctor to respond promptly if needed for a medical emergency. If he chooses not to attend a medical emergency, he must be able to justify his decision. If he is unable to attend to the medical emergency in person, he should still make reasonable effort to help the caller to find alternative, timely and appropriate care from another doctor. If the doctor attends or assists in a medical emergency, he has a duty of care to the patient and exercise his clinical judgement to help and respond the patient.
10. The State Commission held that the Complainant failed to produce cogent evidence or any expert opinion to prove his case. Moreover, we have to consider that the age of OP-1 Dr. Sarbjit was about 88 years, suffering from Oral Cancer, thus in fag end of life, it is difficult for us to hold him even for unethical practices while treating such very poor patient. Just, on the ground that the OP-1 was Homeopathic doctor and not qualified to administer allopathic medicine is not sufficient to hold him for medical negligence. He has a duty to act as a Good Samaritan at the relevant time. Even, we do not see he had any intention to keep the patient in his nursing home, but referred promptly to the Govt. Hospital within short time, thus the referral in the instant case was proper.
11. Emergency care is one of the most sensitive areas of health care. In a medical emergency, time is critical. It should be borne in mind that the Divine possible complications will make any amount of good care with good intention of a Doctor commiserating with existing practices and will make him to face the fate of self-decimation. There are certain possible for grey areas to exist in patient care, where a professional is called upon to make a decision, when he possibly has to throw a dice and take a refuge in statistical possibility of particular event happening.
12. The Compensation is always a mixed question of fact and law, but a mere speculative possibility of benefit was not sufficient. The Hon'ble Supreme Court in the case, National Insurance Co. Ltd. v. Kusuma[1], a Bench of Hon'ble Justices D.K. Jain and R.M. Lodha cautioned the tribunals, saying the amount of compensation awarded was not expected to be a windfall or bonanza, nor should it be niggardly or a pittance. "Whether there exists a reasonable expectation of pecuniary benefit" was always a mixed question of fact and law, but a mere speculative possibility of benefit was not sufficient. In the instant case the District Forum erred to determine medical negligence and awarded unjustified compensation.
13. In this case, no doubt, it is not an intention of the Court or Commission to let go the OP-1 for his mistake, which definitely need a rap on the knuckle, but that rap should not break his skull. Apparently, in our view, it was not illegal act of the OP-1 who treated the emergency in consultation with an Allopath. We have sympathy and appreciate the pain and agony of the Complainant but then, that by itself cannot be a cause for awarding damages for the death of his daughter. Such sympathy cannot translate into a legal remedy.
14. Based on foregoing discussion, we don't find that the Opposite Party No. 1, late Dr. Sarabjit Singh has committed any medical negligence. It was the case of head injury, an emergency; he attended promptly and after first-aid referred her to Howrah General Hospital. In our considered view, it does not amount to failure of duty of care or negligence and in alleviating this wrath of nature, this Homeopathic doctor cannot be sacrificial lamb in this case.
15. We don't find any error apparent to interfere in the Order of the State Commission, same is affirmed. The Revision Petition No. 3002/2010 is dismissed. Consequently, the Revision Petition No. 256/2011 filed by Dr. Sarabjit Singh is dismissed as infructuous.
However, there shall be no Order as to costs.
[1] (2011) 13 SCC 306 BINOY KUMAR The key issue in the Revision Petition No.3002 of 2010 is whether a homeopathic doctor can administer an allopathic injection specially when the patient is suffering from alleged head injury. The Petitioner took his daughter aged about 11 years to the hospital of the Respondent - SMRI Nursing Home. From the record, it appears that Dr.Sarabjit Singh, the Opposite Party No.1 since deceased and who is a homeopathic doctor was present and he gave three injections i.e. (i) Calmpose, (ii) Decadron (iii) Monocef one after the other at short intervals which led the victim girl losing her pulse and movement. On seeing the serious condition, Dr. Sarabjit Singh asked the father of the girl to take her to Howrah District Hospital where the attending doctor declared her dead on arrival. Preferably she might have died on the way. A complaint against the doctor was filed by the father of the victim which was allowed by the District Forum which held the doctor responsible for deficiency of service under Consumer Protection Act, 1986 (for short the Act). However, on appeal by the Doctor, the State Commission at Kolkata allowed it and set aside the District Forum's Order. This Revision Petition against the Order of the State Commission has been filed by the victim's father.
The defence of the doctor was that it was an emergency situation and therefore, he gave three injections and that too after consulting one allopathic doctor S.K.Majhi. Based on this argument, the State Commission allowed the Appeal of the doctor. It is well settled law that the homeopathic doctor cannot administer allopathic medicine/injection. A distinction in this case is being made on the ground of emergency situation.
With this background, I am constrained to give my opinion in this case both in terms of law and ethics.
In term of law, the Order of the State Commission is not sustainable on two counts. First, it has allowed a homeopathic doctor to administer multiple potent allopathic injections. A homeopath doctor is not clinically equipped to administer allopathic drugs for a variety of reasons, the chief reason, in my opinion, is his lack of knowledge for allopathic system for management of illness and the drugs which need to be used. He would not be able to clinically correlate the diagnosis with the medication. He would not be knowing the side effects of the drugs administered. Secondly, he should be administratively equipped to do allopathic medication through registration with competent medical authority be it State or Centre. From the record and averment made and oral argument made this does not appear to be so. It is also not known whether Dr. Sarabjit was a registered homeopathic petitioner. It is also not known whether he was specifically qualified under West Bengal State Homeopathic Act to administer injection. Even if we give benefit of doubt to Dr. Sarabjit that he was qualified to administer injections, he was definitely not qualified to administer allopathic injections. No evidence has been produced that the three injections are the drugs to be given to treat patients suffering from head injury.
Ethically, it is wrong on the part of the homeopathic doctor, irrespective of his knowledge of allopathic medication indulge in allopathic medication. He is transgressing his limitation by giving false hope to an unknowing patient. Such an act can be easily called quackery.
Taking the excuse of emergency or a consultation with an allopath can be worse as we all know that in such a situation it is very important for the patient to be brought to a regular hospital without wasting any time. Admittedly, here there was a lot of time spent in administering multiple injections and watching the effect. The golden hour thus got lost and the patient was brought dead to the District hospital.
In my opinion, not much credence can be given to the affidavit of an allopathic doctor who gave advice. There is no evidence produced by Dr. Sarabjit Singh that this consultation was prior to injecting the strong drugs. Definitely, the victim and her father did not know that such consultation took place. Further, he has not given any statement to the effect that he informed the patient or her father that he was actually a homeopathic doctor and was administering the allopathic injections to save life and on consultation with an allopathic doctor. So no prior information was given to the Complainant and admittedly no consent taken. The name of the hospital is also misleading. This also shows that there was no proper disclosure made.
The ground of emergency cannot be a valid basis for a homeopathic doctor to do allopathy. From the evidence on record, the doctor on seeing the patient, simply injected three drugs without knowledge of the condition of the patient and in a routine manner. This can be very dangerous and should be avoided at all cost. The three drugs injected are potent drugs with a lot of side effect. These drugs should be given in right dosage depending upon the age of the patient and with right combination, overdose or under dose has huge medical implication. Calmpose is well known sedative. Decadron is a powerful steroid and Monocef is an antibiotic. Undoubtedly, these three medicines are strong drugs which cannot be administered without a proper clinical analysis of the state of the patient. Administering these three injections in a short duration can also have its own side effects which are not known. In short, such drugs need to be administered by a competent doctor/hospital. Any allowance would lead to a serious and grave implication of any person without competence administering strong medicine to a patient on this ground of emergency. This would lead to a situation where even a quack can administer medication on the grounds of emergency and first aid. This is not as per any accepted medical protocol. Even first aid has defined protocol. Definitely, on these two grounds, there has been a deficiency of service and unfair trade practice.
Let me elaborate on the legal position. In the Act, 1986, Section 2 (11) reads as under :
(11) "deficiency" means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service.
Further, Section 2 (r) (ii) reads as under :
47. "Unfair trade practice" means a trade practice which for the purpose of promoting the sale, use or supply of any goods or for the provision of any service, adopts may unfair method or unfair or deceptive practice including any of the following practices, namely:-
(ii) falsely represents that the services are of a particular standard quality or grade.
I would also like to quote certain relevant paragraphs from the landmark Order of Hon'ble Supreme Court in Poonam Verma Vs. Ashwin Patel & Ors., Civil Appeal No.8856 of 1994 decided on 10.5.1996 on the subject, wherein it was held as under:-
20. This Court in Dr. Laxman Balakrishna Joshi vs. Dr. Trimbak Bapu Godbole & Anr. AIR 1969 SC 128, laid down that a Doctor when consulted by a patient owes him certain duties, namely, (a) a duty of care in deciding whether to undertake the case; (b) a duty of care in deciding what treatment to give; and (c) a duty of care in the administration of that treatment. A breach of any of these duties gives a cause of action for negligence to the patient.
. The principles were reiterated in A.S.. Mittal vs. State of U.P. AIR 1989 SC 1570, in which wide extracts from that judgment were made and approved.
22. It is in the light of the above principles that it is to be seen now whether there was a breach of duty of care on the part of Respondent No. 1 in the process of treatment of Pramod Verma.
31. Right to practice in Allopathic System of Medicine as also the right to practice in Ayurvedic or Unani System of Medicine is regulated by separate independent Central and local Acts. Indian Medical Council Act, 1956 deals, inter alia, with the registration of persons possessing requisite qualifications as Medical Practitioner in Allopathic System as also recognition of Medical Qualifications and Examinations by Universities or Medical Institutions in India.
37.It is true that in all the aforesaid Systems of Medicine, the patient is always a human being. It is also true that Anatomy and Physiology of every human being all over the world, irrespective of the country, the habitat and the region to which he may belong, is the same. He has the same faculties and same systems. The Central Nervous System, the Cardio-Vascular System, the Digestive and Reproductive systems etc. are similar all over the world. Similarly, Emotions, namely, anger, sorrow, happiness, pain etc. are naturally possessed by every human being.
38. But merely because the Anatomy and Physiology are similar, it does not mean that a person having studied one System of Medicine can claim to treat the patient by drugs of another System which he might not have studied at any stage. No doubt, study of Physiology and Anatomy is common in all Systems of Medicines and the students belonging to different Systems of Medicines may be taught physiology and Anatomy together, but so far as the study of drugs is concerned, the pharmacology of all systems is entirely different.
40. The bane of Allopathic medicine is that it always has a side-effect. A warning to this effect is printed on the trade label for the use of the person (Doctor) having studied that System of Medicine.
42. Negligence has many manifestations - it may be active negligence, collateral negligence, comparative negligence, concurrent negligence, continued negligence, criminal negligence, gross negligence, hazardous negligence, active and passive negligence, wilful or reckless negligence or Negligence per se, which is defined in Black's Law Dictionary as under :
Negligence per se: Conduct, whether of action or omission, which may be declared and treated as negligence without any argument or proof as to the particular surrounding circumstances, either because it is in violation of a statute or valid municipal ordinance, or because it is so palpably opposed to the dictates of common prudence that it can be said without hesitation or doubt that no careful person would have been guilty of it. As a general rule, the violation of a public duty, enjoined by law for the protection of person or property, so constitutes."
43. A person who does not have knowledge of a particular system of medicine but practices in that system is a quack and a mere pretender to medical knowledge or skill, or to put it differently, a charlatan."
11. Even this Commission in the case of Dr.Rahul Vs. Arvind in RA No.251 of 2017 in RP No.135 of 2016 decided on 8.7.2019, has held as under :-
"It is also clear that the Opposite Party being a homeopathic practitioner, is not having any authority to administer allopathic medicines i.e. injections to the patient. Thus, without any authority, he administered the said injections of allopathic medicines to the deceased Milan, and as her death is caused due to reaction of the said injections, it proves per se negligence on the part of the OP."
Incidentally, this Order has been appealed against in the Hon'ble Supreme Court but no stay order has been granted.
12. Further, in this Commission's Order in the case of Dr.Pankaj Vs. Taytya (RP No. 1173 of 2015) decided on 6.10.2015, this Commission has held that "practicing homeopaths were not permitted to prescribe allopathic medicine and therefore, the Petitioner was deficient in treating the patient."
13. On the importance of dosage, this Commission in RP No.4677 of 2013, in the case of Chandigarh Nursing Home and Anr. Vs. Sukhdeep Kaur decided on 3.1.2022, has observed as under :
Finally, the Hon'ble Supreme Court has cautioned that employing traditional medical practitioners who do not possess the required skill and competence to give allopathic treatment in hospitals and to let an emergency patient be treated by them is gross negligence.
Further, it was observed that -
He also failed to administer proper doses of steroids, the doses of steroid was far less."
14. By stating that in the present case there was an emergency so the homeopathic doctor can administer allopathic drugs is bad in law. When a homeopathic doctor cannot administer a drug in normal circumstances (Dr. Rahul Vs. Arvind (supra), he certainly should not administer it during an emergency. Emergency situation calls for greater care and scrutiny in the hands of a competent doctor or hospital. It has to be kept in mind that allopathic drugs are serious and strong medicine which require to be given based on proper clinical and other examination and in proper dosage and in proper combination keeping in mind the side effects. This is science and therefore a lay person or a non-qualified person cannot be expected to know these things and administer them with their half-baked knowledge. They should not indulge in such reckless treatment.
15. In view of the above discussion, in my considered opinion, a homeopathic doctor should not be administering allopathic injections even in so called emergency situations as he is not competent to do so. Dr. Sarabjit Singh, Respondent No.1 by doing such acts has violated administrative instructions and Government Rules and found deficient in service, unfair trade practice and medical negligence under the Consumer Protection Act, 1986. Accordingly, the Revision Petition No.3002 of 2010 filed by the Petitioner/Complainant is allowed, the Order of the State Commission is set aside and the Order of the District Forum upheld. Consequently, Revision Petition No.256 of 2011 filed by Dr.Sarabjit Singh & Anr. is dismissed.
Dated: 03.06.2022 ORDER In view of the Order passed by the majority, the Revision Petition No. 3002 of 2010, filed by the Complainant, is dismissed. Consequently, the Revision Petition No. 256 of 2011, filed by the Opposite Party is dismissed as infructuous.
......................J R.K. AGRAWAL PRESIDENT ...................... DR. S.M. KANTIKAR MEMBER ...................... BINOY KUMAR MEMBER