State Consumer Disputes Redressal Commission
G.K. Sabharwal vs Dr. Satish Virmani, M.B.B.S, on 28 November, 2007
IN THE STATE COMMISSION : DELHI IN THE STATE COMMISSION : DELHI (Constituted under Section 9 clause (b)of the Consumer Protection Act, 1986 ) Date of Decision: 28-11-2007 Complaint Case No. C-305/1998 Sh. G.K. Sabharwal & Smt. Jaishree Sabharwal, Complainants R/o A-3/78, Varun Aptt., Through Plot No. 12, Sector 9, Mr. Sunil Malhotra & Rohini, Delhi-110085. Mr. S.U. Sareen, Advocate. Versus 1. Dr. Satish Virmani, M.B.B.S, Opposite Party No.1 Clinic-QU 69-A, Pitampura, Through Delhi-110034. Mr. Rajan Sareen, Advocate. 2. Dr. Rajiv Chawla, M.D., Opposite Party No.2 Consultant Physician, Cardiologist, 180, Jai Apartment, Sector 9, Rohini, Delhi-110085. 3. Santhom Hospital, Opposite Party No.3 D-5, Prashant Vihar, Outer Ringh Road, Delhi-110085. 4. Dr. Randhir Sood, Opposite Party No.4 Gestroenterologist, Ganga Ram Hospital, New Delhi. 5. Sir Ganga Ram Hospital, Opposite Party No. 5 Rajinder Nagar, New Delhi. CORAM : Justice J.D. Kapoor- President Ms. Rumnita Mittal- Member
1. Whether reporters of local newspapers be allowed to see the judgment?
2. To be referred to the Reporter or not?
JUSTICE J.D. KAPOOR, PRESIDENT (ORAL) This complaint arises allegations of medical negligence on the part of OP No.1 to 5 resulting in the death of a student of B.Sc. (Physiotherapy). OP No.1, 2 and 4 are doctors and OP No.3 and 5 are hospitals. Through this complaint a compensation of Rs. 36 lacs has been claimed.
2. Allegations of the complainant, in brief, are that the deceased was running a temperature of 103 degree on 03-10-1997 and was brought for treatment to OP No.1-doctor, who advised for various tests after prescribing certain medicines. The tests were conducted and on 04-10-1997 a re-test was done on his advice in respect of platelet counts because these were found to be very much on the lower side.
However, in the next test also counts were found as earlier. After going through the reports of investigation he advised to continue with the same medicines as prescribed for three days. On 4th and 5th October, 1997 the condition of the deceased deteriorated further and OP No.1 was consulted. OP No.1 immediately referred the deceased to OP No.2 who after examining the deceased again advised various tests and advised for admission to OP No.3 hospital.
All the tests were carried out by the said hospital.
3. OP No.1 was duly informed at the time of admission of the patient that the deceased had been studying in Mangalore, which is highly malaria infested area and temperature may be increasing due to malaria but no treatment was given by OP No.1 and may be by OP No.2 also. OP No.1 and 2 were of the opinion that reports appeared to be NIL for malaria and, therefore, no treatment was given despite the fact that the complainants requested the OP No.1 to 3 to immediately carry out proper test for detecting Malaria as this could only be the reason for increase in the body temperature and lowering of platelet counts.
4. That OP No.1 to 3 did not bother for all these days and started a different line of treatment to the patient with the result that her condition deteriorated. When the condition of the patient deteriorated and she went into very bad shape, the OP No.2 and 3 referred the patient to OP No.5 where she was treated by OP No.4. In the report for referring the patient also it had been mentioned by OP No.2 and 3 that it is a case of Viral Hepatitis/Encephalitis, which was wrongly mentioned and wrong treatment was given. OP No.4 and 5 after investigations as prescribed under the medical norms in the literature found that it was a case of Malaria parasite and started the treatment by administering the medicine. The condition of the patient had deteriorated to the extent that such medicines could not be administered without keeping the patient either in ICU or ventilator but it was not done with the result that the patient expired.
5. That there was also delay on the part of OP No.4 in starting treatment when the patient was initially brought at 8.30 am on 07-10-1997 and the deceased was checked up in the late afternoon. The report of platelet counts as shown on the day of referring the deceased to Sir Ganga Ram Hospital was 1,48,000 whereas on the same day when Ganga Ram Hospital conducted the test they found the platelet count to be only 48,000. the normal platelet count in a healthy person is between 1.5 lac to 4.5 lacs.
As per the medical norms and literature if the patient is having temperature malaria has to be ruled out first and if malaria cannot be diagnosed clinically, microscopic examination is necessary to find out symptoms of malaria.
6. In the present case only OP NO.4 and 5 conducted this test and found malaria at a very advanced stage when the condition of the deceased had deteriorated and thereafter medicines were administered without the life supporting equipments or taking the patient into ICU which was required at that point of time, resulting in the death of the deceased.
Hence this complaint.
7. While refuting the allegations of the complainant as to the wrong treatment given by OP No.1, OP No.1 averred that the complainant was given treatment for only one day when the case was at investigative stage and the complainant was referred to OP No.2 and therefore there was no deficiency or negligence on the part of OP No.1.
8. Version of OP No.2 is that the patient was brought to him at 8.30 P.M. on 5-10-1997 and since the OP No.2 was only having Consulting Chamber and having no equipments and infrastructure facilities for investigations and tests he referred the patient to OP No.3 who carried out all the necessary investigations. Further that the patient had told that she had gone to different hospitals and had completed full course of anti malaria and chloroquinine course at Mangalore where she was residing as it was a malaria prone area. Since temperature was not subsisting OP No.2 started the treatment, few investigations were conducted which showed that three consecutive slides for P/S for MP were negative for malaria. With this background coupled with a gradually increasing S. bilirubin levels and transaminases along with abdomen report suggested a hepatitis inflammation, further clinical diagnosis of viral hepatitis and encephalopathy viral encephalitic was perused and medical treatment was started accordingly.
9. Further that the fever, headache and low platelets were due to malaria and are not pathogenomic or diagnostic of cerebral malaria. These can occur in a number of viral illness including viral hepatitis, viral encephalitis, dengue fever and even enteric fever. The patient had altered sensorium with raised S. billirubin Raised SGOT, PT (liver enzymes), hepatomegaly (enlarged liver), ultrasound abdomen suggestive of hepatitis along with two slides for malaria-negative initially made the OPs consider viral hepatitis/viral encephalitis as the provisional diagnosis for which the medical treatment as required was started.
10. OP No.2 further averred that for CSF the attendants were not ready. Since the condition was deteriorating despite all the investigations and requisite treatment the patient was referred to OP No.5 Sir Ganga Ram Hospital as it was not desirable on the part of OP No.2 and 3 to repeat the malaria treatment as slides were negative and the patient had already taken treatment at Mangalore.
Thus there was no negligence on the part of OP No.2 and 3.
11. Version of OP No.4 and 5 is that the malaria parasite is always found negative on tests in a case of Cerebral Malaria. It may be negative occasionally and it is because of this reason that repeated tests are done to arrive at definite conclusion.
OP No.4 denied having detected the malaria at the last stage. He also denied that death occurred due to administration of Mefloquine. He asserted that Mefloquine is a very effective drug in falciparum malaria. Mefloquin is a very safe drug and it is in tablet form. There is no recommendation of this to be given in ICU or under Cardiac monitoring. In fact this was the only life saving, safe drug which could have been given to the patient. This is recommended drug for Drug Resistant Falciparum Malaria and in such a sick patient no chance could be taken. There was no negligence in giving it in the ward. Any medicine, which is in the form of tablet, is usually safe for administration without any intensive care monitoring. Cardiac monitoring is recommended only in elderly patients with low heart rate or patients having received quinine in last 24 hours.
12. Thus OP No.4 and 5 denied that they were negligent in any way to rely on previous reports instead of making independent investigations in the circumstances. According to them the young girl was admitted on 07-10-1997 and as her condition was already rapidly deteriorating before being transferred to OP No.5-Hospital, she was immediately seen by OP No.4 personally. She was critically sick and her condition was deteriorating fast and in those circumstances immediate treatment was necessary and prudent practice demanded that the treatment be planned and based on
(a) Clinical assessment.
(b) Perusal of previous data and available reports.
13. Further that clinically she had signs of cerebral irritation with high fever, jaundice and decreased movements of right side of the body with liver enlargement. Previous reports indicated inflammation in liver and low platelets with negative malarial parasite on three occasions. Provisional diagnosis of viral encephalitis was made and fresh investigations were sent within minutes of her coming to the hospitals so as to rule out other causes like hepatitis, malaria, typhoid and dengue. She was put on I/v drips, antibiotics and measures to decrease cerebral irritation. Within three hours her reports were available from the OP-Hospital and again malaria was negative. Hepatitis & Dengue was ruled out on blood tests.
14. That as per record 1st sample for malaria test was sent right at admission stage which was reported Negative as is made out from Annexure A. Subsequently five more samples were sent for malaria parasite from 11 p.m. onwards on 07-10-1997. OP No.4 had suspicion of cerebral malaria but it was a factor in his mind that the last three reports from outside had shown negative to malarial tests.
Prudent practice would demand that other possibilities be ruled out first and that was precisely the course of action taken by OP No.4. It was the 3rd sample that showed falciparum malarial parasite and anti malarial treatment was given.
15. That in patient who is so sick many diseases can show similar symptoms/signs and various causes were ruled out while waiting for a positive diagnosis. In her case every thing had been done very promptly. In fact she was seen five times by consultants within eight hours of admission and then by three consultants including the OP No.4 from 11.20 p.m. to 12.39 a,m. on the day of admission alone. It shows the care and attention the girl was given. In fact as evidenced by the case record OP No.4 had seen her at 0.45 am on 08-10-1997 and given instruction that Mefliquine should be given if any sample turned positive. Hence there was no negligence on the part of OP No. 4 & 5. In fact she was possibly given the best care humanly possible and the question of giving empiric anti-malarials without evidence and confirmation was not prudent.
16. We have heard counsel of the parties at great length and accorded careful consideration to the rival contentions
17. According to the learned counsel for the complainant, in case malaria is not diagnosed by microscopic examination of the blood, in that case, bone marrow examination is required because increase in the temperature and other symptoms showed that it could be a case of malaria, which had not been ruled out by any of the OPs and they started a different line of treatment not of malaria and finally at a very late stage when malaria was diagnosed by OP No.4 and 5 it was too late and further that the OP No.3 in its report of clinical examination filed alongwith reply has tried to tamper with the record at page 3 by mentioning on the side that H/o High fever 5 days ago. Having taken full course of Anti-malarial chloroquine, whereas no treatment had been given either before or by OP No.1 before referring the deceased to OP No.2 who took her and admitted her for treatment in OP No.3 hospital and more over while referring the patient to OP No.4 and 5 nothing had been mentioned that full course of Anti-malarial chloroquine had been given to the patient which clearly shows the malafide on the part of OP No.2 and 3 to escape from the liability. OP No.1 to 5 have committed medical negligence with the result that the patient died.
18. Contentions of counsel for OP No.2 and 3, in brief, are that the clinical diagnosis of severe malaria can be difficult for several under mentioned reasons:-
(i) All the clinical features of malaria can be mimicked by other diseases, therefore having no component of the clinical picture of malaria complications, which is unequivocally diagnostic of the infection.
(ii) In endemic areas, the presence of parasitaemia does not prove that malaria is the sole cause of illness where asymptomatic parasitaemia may be common in immune persons.
(iii) Conversely, patients with severe malaria are occasionally seen whose blood film at the time of presentation is negative; may be because of previous treatment, a highly synchronous infection, or comprehensive sequestration of parasitised RBCs in deep vascular beds. Repeated blood films usually reveal the diagnosis, but there is suspicion that the patient is suffering from malaria; i.e. if the patient has been exposed to P. falciparum infection within the past year and has signs of severe disease.
19. Learned counsel for OP No.2 and 3 referred to and relied upon the following medical literature in this regard:-
Harrisons Principles of Internal Medicine, 14th Edition, Comparison Handbook.
DIAGNOSIS The diagnosis of malaria rests on the demonstration of the asexual form of the parasite in thick or thin smears of peripheral blood.
Smears should be examined on successive days before a diagnosis of malaria is excluded.
Microscopic examination has been the most reliable and inexpensive technique for diagnosis of malaria. Although the procedure is relatively simple and sufficiently sensitive if properly performed, it requires a skilled technician and adequate light or power source, which may not be always available in rural areas.
The PCR based technologies have the merit of detecting genetically coded drug-resistant strains. However, the method is too sensitive, and is not practical to use for routine diagnosis in the field.
Immunodiagnosis has been the basis of a number of commercially available rapid tests designed not ony for malaria, but also for other infectious diseases including TB , Suphilis, hepatitis surface antigen, and HIV. However, the overall performance is comparable with microscopy.
Malaria cannot be diagnosed clinically and microscopic examination of the blood is necessary for its diagnosis. When there is diagnostic difficulty, bone marrow examination is justified. Occasionally, asexual forms of parasites are demonstrated in bone marrow smears when peripheral blood films are negative. DNA probes for the detection of asexual stages in peripheral blood are effective, but their utility outside epidemiological surveys is uncertain.
Differential diagnosis includes fulminant hepatitis, haemorrhagic fevers, acute meningoencephalitis (bacterial viral) and septicaemia.
20. Reports of tests done at OP No.3 hospital relied upon are as under:-
TLC-55100/MM 3 - Normal value 4000-1000/mm2 DLC N 70 L 26 E2 M2 N=40 75%, L-20-40%, E-1-6%, M-2-10% Platelet count = 85,000/mm 3, N-1, 5-4-0 lacs/mm3 Malaria parasite = Negative.
S.Billirubin (Total) = 2.9 mgn% N-0.2-1.0 mgn% S. Billirubin (Direct) = 2.0 mgn% N-0. 0-0. 4 mgn% S.Billirubin (Indirect) = 0.9 mgn% N=0.1-0.6 mgn% S.G.O.T. = 110 units/ml N-0-40 units/ml.
S.G.P.T. = 100 units/ml N-5.35 units/ml.
Urine culture report showed that Urin R/E Quantity = 5 ml Colour Deep Yellow, Transparency Turbid, Sp. Gr. IS Reac5tion = Acidic Al = +ve, Sugar= -ve.
Urine M/E-plus, Cells = 3-4/HPF Epith, Cells = 6-8/HPF RBC-40-50/HPF, Casts=granular, Cast=-1-2/HPF.
Crystals=NIL Amorphrous=Urates ve.
21. Contentions of learned counsel for OP No. 4 & 5, in brief, are as under:-
(i) That according to standard norm they could not have provided medication for Cerebral Malaria as according to previous history quinine was already administered by Dr. Kamath who is not a party.
(ii) Cerebral Malaria in clinical reports were not available. All the tests and slides came negative.
(iii) Moreover, Cerebral Malaria being very rare disease and signs and symptoms are such as fever, chills, malaise, headache diarrhoea and cough.
In this regard OP No. 4 and 5 has relied upon the Guidelines for the Treatment of Malaria of World Health Organisation, which is as under:-
Severe falciparum malaria with coma (Glasgow coma scale <11, Blantyre coma scale <3). Malaria with coma persisting for >3 min after a seizure is considered to be cerebral malaria.
Elimination of the symptoms and asexual blood stages of the malaria parasite that caused the patient or carer to seek treatment.
(iv) That the clinical manifestations of cerebral malaria are numerous, but there are three primary symptoms generally common to both adults and children:-
(a) Impaired consciousness with non-specific fever;
(b) Generalized convulsions and neurological sequelae; and
(c) That persists for 24-72 hours, initially rousable and then unrousable.
(v) As regards the important considerations in the assessment of a patient with possible malaria the learned counsel relied upon the practice guidelines U.K. Malaria Treatment Guidelines Journal of Infection (2007) 54, 111-121, which is as under:-
Malaria is a medical emergency and patients with suspected malaria should be evaluated immediately.
Symptoms of malaria are often non-specific; fever/sweats/chills, malaise, myalgia, headache, diarrhoea, and cought.
Falciparum malaria is most likely to occur within three months of return from an endemic area. The incubation period for malaria is at least 6 days.
A careful exposure history is necessary; country and area of travel, including stopovers, and date of return.
Consider what malaria prophylaxis was taken (i.e. drug, dose and adherence, premature cessation); appropriate prophylaxis with full adherence does not exclude malaria.
Consider other travel-related infections, e.g. typhoid, hepatitis, dengue, avian influenza, SARS, HIV, meningitis/encephalitis and viral haemorrhagic fevers (VHF).
Three negative slides over a period of 48 72 hours are necessary to exclude malaria .
Chemoprophylaxis should be stopped on admission to hospital as this may interfere with parasite detection.
Treatment regimens for uncomplicated malaria in adults Oral quinine sulphate 600 mg/8 h for 5-7 days plus doxycycline 200 mg daily (or clindamycin 450 mg/ 8 h for pregnant women) for 7 days.
Atovaquone proguanil (Malaria); 4 standard tablets daily for 3 days or Co-artem (Riamet) if weight > 35 kg, 4 tablets then 4 tablets at 8, 24, 36, 48 and 60 h 22. OP No. 4 and 5 also relied upon the medical literature Guidelines for treatment of malaria which is to the following effect:-
Treatment objectives:
The main objective is to prevent the patient from dying, secondary objectives are prevention of recrudescence, transmission or emergence of resistance and prevention of disabilities.
The mortality of untreated severe malaria is thought to approach 100%. With anti-malaria treatment the mortality falls to 15-20% overall, although within the broad definition are syndromes associated with mortality rates that are lower (e.g. severe anaemia) and higher (metabolic acidosis). Death from severe malaria often occurs within hours o admission to hospital or clinic and so it is essential that therapeutic concentrations of antimalarial are achieved as soon as possible.
23. To ascertain the medical negligence, certain criteria have been drawn by us from various decisions starting from Bolams case and followed by catena of decisions of Supreme Court. These can be summed up in the form of following queries? Decision will depend upon the answers:-
(ii) Whether the treating doctor had the ordinary skill and not the skill of the highest degree that he professed and exercised, as everybody is not supposed to possess the highest or perfect level of expertise or skills in the branch he practices?
(iii) Whether the guilty doctor had done something or failed to do something which in the given facts and circumstances no medical professional would do when in ordinary senses and prudence?
(iv) Whether the risk involved in the procedure or line of treatment was such that injury or death was imminent or risk involved was upto the percentage of failures?
(v) Whether there was error of judgment in adopting a particular line of treatment? If so what was the level of error? Was it so overboard that result could have been fatal or near fatal or at lowest mortality rate?
(vi) Whether the negligence was so manifest and demonstrative that no professional or skilled person in his ordinary senses and prudence could have indulged in?
(vii) Everything being in place, what was the main cause of injury or death. Whether the cause was the direct result of the deficiency in the treatment and medication?
(viii) Whether the injury or death was the result of administrative deficiency or post-operative or condition environment-oriented deficiency?
References :-
(i) Bolams case reported in (1957) 2 AII ER 118, 121 D-F
(ii) Sidway V. Bethlem Royal Hospital Governors and Others 643 All England Law Reprots (1985) 1 All ER.
(iii) Maynard V. West Midlands Regional Health Authority 635 All England Law Reports (1985) 1 All ER.
(iv) Whitehouse V. Jordan and Another 650 All England Law Reports (1980) 1 All ER.
(v) Indian Medical Association Vs. V.P. Shantha & Others (1995) 6 SCC 651.
(vi) Jacob Matthew Vs. State of Punjab and Another (2005) SCC (Crl.) 1369.
24. As is apparent from above conspectus of facts the complainant was taken to OP No.1 doctor on October 3, 1997 with persistent fever and general weakness for two days. He was also informed that she had taken some medicine for fever but inspite of this the fever was not subsisting. Prior to this on 30th September, 1997 she had already taken treatment of Dr. Kammath at Mangalore. Preliminary diagnosis was done by OP No.1 such as TLC, BLC, Malaria parasite, S. billurubin levels and urine culture.
Since different malarial parasite came to be negative, medicine was prescribed for pain and fever. The complainant was asked to bring the patient for review on the next day i.e. 04-10-1997 in the morning with the test report of OP No.1. The review was necessary for ascertaining group of the fever. On 04-10-1997 at about 10.00 A.M. complainant again came to the OP No.1. She was relatively stable and was not having fever but was having general weakness.
OP advised the complainant to bring the patient for investigation so as to facilitate doctors in checking all the parameters and diagnosis. Thereafter OP No.1advised tests and found as follows:-
(i) Blood platelet count fairly below normal range.
(ii) Malarial parasite negative, vital tests negative,
(iii) S. billirubin normal,
(iv) TLC and DLC normal.
25. OP No.1 got concerned with the low blood platelet count and explained to the complainant that there is always risk of bleeding and treatment can only be given to such patient where services of specialists and medical facilities are available to meet any complications and exigencies. Therefore the complainant was advised that better course would be to take the patient to some hospital for further treatment under the guidance of specialist. OP No.1 told the complainants that on the safer side patient should undergo blood platelet count once again and also additional blood test, normal Hb and urine culture test. Platelet count, general routine blood test and urine culture test was advised to ascertain type of bacterial infection.
26. Thus the patient took the treatment of OP No.1 practically for one day i.e. 3rd October, 1997 as in the morning of 4th October, 1997 he referred her to the hospital after giving the primary treatment for fever as malarial test came out to be negative. Thus there was no negligence medical or otherwise on his part.
27. As regards role of OP No. 2 and 3, the complainant came to them on 4th October, 1997 in the evening. Thereafter attendants gave definite history of the patient on 5th October, 1997 at 11.30 P.M. Patient was advised for certain tests which were carried out.
Thereafter treatment was started as per clinical assessment. Two tests of malaria was conducted and both slides were found negative. On the basis of the symptom OP No.2 and 3 suggested ultra sound and treatment and immediately started clinical diagnosis of Hepatitis, encephalitis. The medicines as per symptoms were given to the patient. On 6th October, 1997 patient remained stable. On 7th October, 1997 again all the investigations were carried out which again were suggestive of viral Hepatitis and malarial parasites were negative. Thereafter Dr. Vivek Bhatia was consulted and he also agreed with the diagnosis for viral Hepatitis. Despite giving medicines in the treatment as per diagnosis the condition of the patient started deteriorating and therefore the patient was referred to Ganga Ram Hospital with all the treatment given and the diagnosis which was entric HP.
28. The medical test report at page 16 dated 7th October, 1997 shows platelet count of 1.4 lacs whereas on the same day at Ganga Ram Hospital the platelet count came down to 48 thousand. As is apparent OP No.2 and 3 did not conduct proper investigation for diagnosing malaria. This test was conducted by OP No. 4 and 5 only on 7th October, 1997 and during this short duration platelet count lowered and the cause of death given by Ganga Ram Hospital as cerebral malaria and therefore test as claimed by OP No.2 and 3 were never conducted and OP NO.2 and 3 believed the history given by the complainant that he had already received anti-malarial prescription at Mangalore and treatment from OP No.1. thus there is truth in the allegation that OP No.2 and 3 tampered the record by mentioning on the side that H/o High fever 5 days ago. Having taken full course of Anti-malarial Chloroquine. Had the complainant taken anti-malarial treatment the eruption of malaria on 7th October 1997 was not possible. Malaria was detected by Gaga Ram Hospital after two slides showed negative. As per medical norms and literature if the patient is having temperature malaria has to be ruled out first and if malaria cannot be diagnosed clinically, microscopic examination is necessary to find out symptoms of malaria. In case malaria is not diagnosed by microscopic examination of the blood, in that case, bone marrow examination is required because increase in the temperature and other symptoms showed that it couldbe a case of malaria, which had not been ruled out by any of the OPs and they started a different line of treatment not of malaria and finally at a very late stage when malaria was diagnosed by OP No.4 and 5 it was too late. The main objective is to prevent the patient from dying, secondary objectives are prevention of recrudescence, transmission or emergence of resistance and prevention of disabilities. The mortality of untreated severe malaria is thought to be approximately 100%. With anti-malaria treatment the mortality falls to 15-20% overall, although within the broad definition are syndromes associated with mortality rates that are lower (e.g. severe anaemia) and higher (metabolic acidosis). Death from severe malaria often occurs within hours of admission to hospital or clinic and so it is essential that therapeutic concentrations of antimalarial are achieved as soon as possible. At no stage the patient had full course of anti-malarial chloroquine when he was brought to OP No.2 and 3. Any reference in this regard is of doubtful nature as OP No.2 and 3 should have ensured that patient had full course of anti-malarial chloroquine on perusing the previous prescription. Thus OP No.2 and 3 are guilty of negligence in either not conducting the tests properly or not giving the proper treatment.
29. As regards role of OP No.4 and 5 the patient came to their hospital on 7th October, 1997. Her condition was rapidly deteriorating before being transferred to their hospital.
30. As per record 1st sample for malaria test was sent OP No.4 had suspicion of cerebral malaria but it was a factor in his mind that the last three reports from outside had shown negative to malarial tests. Prudent practice would demand that other possibilities be ruled out first and that was precisely the course of action taken by OP No.4. The third sample showed falciparum malarial parasite and anti malarial treatment was given. Patient who is so sick and where many diseases can show similar symptoms/signs and various causes were ruled out while waiting for a positive diagnosis. In her case every thing had been done very promptly. She was critically sick and in those circumstances immediate treatment was given as per medical and prudent practice and procedure. There was neither any medical negligence on the part of OP No.4 and 5 either in treatment of the deceased nor was any delay as alleged by the complainant in attending to the deceased.
31. In the result, we find only OP No.2 and 3 guilty for negligence in not conducting proper investigation by believing though it was emphatically denied by complainant that the deceased had already taken anti-malarial treatment and not giving the proper and requisite treatment. In the given facts and circumstances of the case we deem that lumpsum compensation of Rs. 50,000/- and Rs. 10,000/- towards cost of litigation shall meet the ends of justice. Remaining OPs are absolved from the charge of negligence.
32. Payment shall be made within one month from the date of this order.
33. Complaint is disposed of in aforesaid terms.
34. A copy of this is order as per the statutory requirements, be forwarded to the parties free of charge and thereafter the file be consigned to Record Room.
35. Announced on the 28th November, 2007.
(Justice J.D. Kapoor) President (Rumnita Mittal) Member jj