State Consumer Disputes Redressal Commission
Priya Shamrao Deshmukh vs Dr D S Mishra on 4 September, 2015
Cause Title/Judgement-Entry BEFORE THE HON'BLE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, MAHARASHTRA, MUMBAI Complaint Case No. CC/11/190 1. PRIYA SHAMRAO DESHMUKH FLAT NO 1 SADHANA 11/H RANADE ROAD SHIVAJI PARK DADAR WEST MUMBAI - 400028 MUMBAI MAHARASHTRA ...........Complainant(s) Versus 1. DR D S MISHRA OFFICE AT GANESH CLINIC GANESH BHUVAN KHED GULLY OFF GOKHALE ROAD (S) DADAR WEST MUMBAI 400028 MUMBAI MAHARSHTRA 2. DR PRAJAKTA PAWAR, CONSULTANT AT SHRUSHRUSHA CITIZENS' CO-OP HOSPITAL ADD AT 698-B RANADE ROAD DADAR WEST MUMBAI 400028 MUMBAI MAHARASHTRA 3. SHUSHRUSHA CITIZENS CO-OP HOSPITAL 698-B RANADE ROAD DADAR WEST MUMBAI 400028 MUMBAI MAHARASHTRA 4. DR ADWAIT PATIL, CONSULTANT AT SHUSHRUSHA CITIZENS CO-OP HOSPITAL ADDRESS AT 698-B RANADE ROAD DADAR WEST MUMBAI 400028 MUMBAI MAHARASHTRA ............Opp.Party(s) BEFORE: Shashikant A. Kulkarni PRESIDING MEMBER Narendra Kawde MEMBER For the Complainant: Adv.Rajeev Matkar For the Opp. Party: Opponent no.2-Dr.Adwait Patil and opponent no.3-Dr.Prajakta Pawar ORDER Per Mr.Narendra Kawde, Hon'ble Member
Important questions for our consideration in this consumer complaint are twofold -
a) Whether opponent no.1 a General Practitioner followed prescribed procedure to administer tablet GATRI 400 (generic name), gatifloxacint-400 mg. to the complainant for the disease? diagnosed clinically without test report.
b) Whether opponent nos.2 & 3 Medical Professionals followed the standard protocol of treatment to treat Steven Johnson Syndrome with progression of Toxic Epidermal Necrolysis [TEN] diagnosed by them in the opponent no.4 hospital?
[2] COMPLAINANT'S CASE IN BRIEF AS PLEADED IS AS HEREINBELOW :
Complainant [hereinafter to be referred to as 'patient'] was suffering from cough and cold. She approached opponent no.1-Dr.Mishra, on 15/09/2008, who is a general practitioner and family physician of the complainant. Opponent no.1 clinically examined the patient for the complaint of fever with chills and burning sensation of urination though complainant was suffering from 'cough and cold'. Opponent no.1 prescribed tablet Gatri 400 (gatifloxacin ) without pre-testing. After having consumed tablet Gatri 400, complainant developed high grade fever on 15/09/2008 itself and noticed rashes and boils on her skin with deep itching sensation and uneasiness. On reporting this development to opponent no.1, he advised to consult opponent no.2 as he was going out of station. Upon approaching opponent no.2 in the hospital of opponent no.4 she was diagnosed with chicken pox [which is denied by the opponent no.2 and 3] and advised the complainant to get admitted in the hospital. On admission in the opponent no.4 hospital, under opponent no.2 as a doctor in-charge, treatment was prescribed and administered.
[3] However, rashes and boils aggravated and, therefore, complainant was submitted to opponent no.3, who is a dermatologist. Opponent no.3 allegedly opined that the condition of the patient was due to allergy to the medicine gatifloxacin prescribed by opponent no.1. In spite of certain prescriptions by opponent nos.2 & 3, the patient developed water boils (blisters) all over the skin. Opponent no.3 allegedly failed to treat the patient and went on experimenting, as there was no confidence in the treatment prescribed. Condition of the patient continued to deteriorate and at one point of time patient was unable to swallow the food and, therefore, she was kept on liquid diet. During the total period of hospitalization with opponent no.4 hospital under the care of opponent no.2 & 3 from 16/09/2008 to 23/09/2008, there was no improvement whatsoever and the condition of the patient deteriorated on day to day basis. On 22/09/2008, patient was shifted to ICU when the parents of the patient very much wanted to shift the patient to some better facility. At that point of time the patient was informed that she was suffering from Steven Johnson Syndrome due to intake of gatifloxacin-400 mg prescribed by opponent no.1. Though the patient had already developed allergy to intake of Crocin, on the advice of a specialist Dr.Soman from Hinduja Hospital, opponent no.2 & 3 continued to administer doses of Crocin forcefully, resulting into worsening of the condition of the patient. Not satisfied with the treatment, the patient sought discharge with DAMA (Discharge against medical advice) on 23/09/2008 and proceeded to get herself admitted to Saifee Hospital. She was treated in ICU condition at Saifee Hospital till 31/10/2008.
[4] It is further alleged that the complainant suffered permanent loss of eye lids, partial loss of eye sight and most importantly permanent loss of tear glands eyes. All these medical condition is attributed by the complainant to the wrong treatment administered by opponent nos. 2 and 3. Complainant underwent treatment at Saifee Hospital not only for recovery of Steven Johnson Syndrome with Toxic Epidermal Necrolysis [hereinafter to be referred to as 'TEN'], but also for acute pseudo membranous conjunctivitis. Complainant and her family suffered untoid measeries and trauma while undergoing the treatment at the hands of opponents. This consumer complaint has been filed alleging medical negligence on the part of opponent nos.1 to 4 claiming total compensation of Rs.35 lacs.
[5] DEFENCE : (A) Reply of the Opponent no.1:-
Opponent no.1-Dr.D.S.Mishra denied the allegations mainly on the following grounds by filing his written version:-
a) allegations of medical negligence against him are not supported by expert evidence. Therefore, regular civil suit in a Civil Court would have been appropriate Fora for trial of this case.
b) he is a qualified MBBS doctor from Bombay University having a general practice for last 40 years and the fact that he is a family physician of the complainant.
c) patient approached him on 15/09/2008 with the complaint of 'fever with chills' and burning of micturition (desire to urinate) due to Urinary Tract Infection (UTI). On clinical examination and as per the standard protocol of treatment, he prescribed tablet Gatri 400 mg (Gatifloxacin), as he has chosen the best option amongst the available drugs. This drug is not known to cause Steven Johnson Syndrome. No special instructions were mentioned on these drug strips about doing hypersensitivity test before prescribing the drug. Therefore, the question of carrying pre-testing did not arise.
(d) Gatifloxacin 400mg was appropriate drug to treat Urinary Tract Infection with chills, as it was a common choice amongst the medical practitioners then prevailing. This opponent denied of any medical negligence leading to deficiency of service to the complainant/patient.
(B) Reply of the Opponent no.2, 3 and 4:-
Opponent nos.2, 3 & 4 have collectively filed the written version defending themselves on the following grounds:-
(a) Immediately on 16/09/2008 when the patient approached the opponent no.2 with severe skin reaction, she was admitted on the same day & diagnosed with febrile illness (fever) + acute severe allergic skin reaction known as Steven Johnson's Syndrome [hereinafter to be referred to as 'SJS']. These opponents state to have nexus of Steven Johnson Syndrome to reaction of drug or due to infection and drug administered by the opponent o.1. Opponents have denied that the complainant was diagnosed with 'chicken pox'. Patient was immediately referred to opponent no.3 i.e. Dr.Prajakta Pawar, a Dermatologist for treatment of Steven Johnson Syndrome and later on the patient was jointly treated by opponent nos.2 & 3. Dr.Rajeev Soman, visiting senior physician, examined the patient and endorsed the diagnosis and the line of treatment in place prescribed by opponent nos.2 &3, which was continued thereafter till DAMA.
(b) Opponent nos.2 & 3 have taken due care to refer the patient to Dr.R.H.Maniar, Consultant Ophthalmologist for the eyes plus eye lid involvement due to SJS. Very serious allergic skin condition, which progressed in the complainant to Toxic Epidermal Necrolysis (TEN) and it is usually life threatening condition involving mortality of the patient. Seriousness of the patient's condition was explained to the patient's relatives and therefore the patient was shifted to Intensive Care Unit (ICU) on 22/09/2008.
(c) Finally, it is stated that these opponent nos.2, 3 &4 have followed the standard protocol of treatment and, therefore, they have denied of medical negligence as alleged, leading to deficiency of service.
[6] Parties to dispute rely on the hospital case papers of Ganesh Clinic and opponent no.4 hospital, affidavits of evidence led by them to support their contentions (opponent no.1 failed to file the same). Further, the authentic text material brought on record by the parties has also been relied upon for standard treatment by the opponent nos.2, 3 & 4 and pre-diagnostic procedure for administering Gatri 400 mg relied upon by the complainant. Complainant also brought on record copy of the Gazette of India published on 16/03/2011 to demonstrate that Gatifloxacin formulation (Gatri 400) was banned through out the country effective from the date of notification of the gazette and the website downloaded material to demonstrate that this drug was already banned in 2006 in USA due to its serious contra indications.
[7] Heard Advocate Mr.Rajeev Matkar-Advocate for the complainant, Advocate Mrs.Kalpana Trivedi for opponent nos.2, 3 & 4 along with opponent nos.2 & 3. None is present for opponent no.1. Opponent no.1 though filed written version, failed to remain present in the proceedings thereafter till final hearing without filing his affidavit of evidence.
[8] On perusal of record, we find that opponent no.1 prescribed tablet Gatri 400 mg (Gatifloxacin) to the patient. However, opponent no.1 failed to record case history of patient whatsoever in the prescription which according to him was fever with chills and burning of micturition as stated by him in the written version. It is the case of complainant that she was suffering from 'cough and cold'. The statement made in the complaint is supported by her affidavit. Therefore, we have to attach more credence to the statement made on oath. Even if it is presumed that according to opponent no.1, the patient was suffering from fever with chills and burning sensation in urination, there is no record to demonstrate that patient was actually examined clinically for that diagnosis, except the averments made in the written version. The complainant's allegation is that opponent no.1 recommended the drug without carrying out any confirmatory test. However, complainant though brought on record the authentic material, failed to point out that such a confirmatory test for hypersensitivity was required at all before prescribing the drug, Gatri-400. However, the text material is relied upon by the complainant namely, "Principles of Harrison's Internal Medicine,17th Edition Volume II ) dealing with chapter -Urinary Tract Infections (282) [UTI] for carrying out diagnosis test. The text material reads as below before recommending any prescription for treatment of UTI-
Diagnostic testing-
"Determination of the number and type of bacteria in the urine is an extremely important diagnostic procedure. In symptomatic patient, bacteria are usually present in the urine in large numbers (>105/ml). In asymptomatic patients, two consecutive urine specimens should be examined bacteriologically before therapy is instituted.....
Although many authorities have recommended that urine culture and antimicrobial susceptibility testing be performed for any patient with a suspected UTI, it is more practical and cost effective to manager women who have symptoms characteristic of acute uncomplicated cystitis without an initial urine culture."
[9] Opponent no.1 failed to substantiate that he strictly adhered to the procedure laid down in the textbook before prescribing the drug-Gatri-400 as according to him patient was suffering from Urinary Tract Infection. He chose to remain absent in the proceedings for the reasons best known to him. Nothing is available on record to ascertain whether case of complainant was uncomplicated to skip the initial urine culture.
[10] On 16/09/2008, the complainant patient was referred by him to the opponent no.2, attached to opponent no.4 hospital. Patient was diagnosed with Steven Johnson Syndrome with progression of Toxic Epidermal Necrolysis [TEN] and immediately referred to opponent no.3, who is a Consultant Dermatologist and the patient was put on the treatment.
[11] The line of treatment adopted jointly by opponent nos.2&3 in opponent no.4 hospital was endorsed by Dr.Rajeev Soman, a senior physician. Fact is that, after his visit on 22/09/2008, the patient was shifted to ICU for further treatment and management, till then the patient was treated in the ward. Contentions raised on behalf of the complainant patient that it was a severe case of SJS with Toxic Epidermal Necrolysis (TEN) and was required to be treated in the Intensive Care Unit on the lines of patient with burns i.e. therapy similar to that of 100% superficial burns as per the text material - Medicine for Students reference book for the Family Physician 20th Edition by Golwalla i.e. (Avoidance of friction between skin and clothes or bed prevents extensive denudation). No counter evidence adduced by the opponent no.2 and 3 to justify treatment of patient outside ICU though sufficient opportunity was granted.
[12] In the case of complainant, undisputedly patient was treated in the ward from the day of admission i.e.16/09/2008 till 22/09/2008, and the patient was shifted to ICU only when Dr.Rajeev Soman advised to do so on his visit. The text book - Skin Diseases & Sexually Transmitted Infections - 6th Edition by Uday Khopkar - relied upon by the complainant in respect of therapy to treat Steven Johnson Syndrome with TEN reads as follows:
Therapy on Toxic Epidermal Necrolysis :
Patient must be managed in an Intensive Care Unit. A short course of high dose steroids early in the course of the disease may be beneficial............
There is no evidence to show that the standard protocol as laid in the authorized text books was followed by the opponent nos.2, 3. Even, these opponents could not explain whether the dose of steroid 8 mg per 8 hours IV administered by opponent nos.2&3 was adequate or, otherwise, early in the course of disease, though, opportunity was granted by adjourning this case to bring such authentic material to our notice.
[13] Relatives of the patient and the patient herself not satisfied with the ongoing treatment at opponent no.4-hospital under the supervision of opponent nos.2&3 sought discharge against the medical advice and proceeded for further treatment to Saifee Hospital on 23/09/2008. The patient was admitted and treated there on the day of reporting i.e. on 23/09/2008 till 31/10/2008 for the Steven Johnson Syndrome with TEN. It is relevant to take into consideration the clinical notes recorded in the discharge summary of Saifee Hospital.
"23 yr female admitted c/o fever high grade with chills for which she took T.Gatifloxacin prescribed by a local practitioner after which she developed rash on left hand which gradually flared up with lesions all over the body in 24 hrs followed by swelling of eyelids - then admitted in ICU in Dadar for 4 days (to be read as admitted in ICU on 22/09/2008) no relief then admitted here for further management."
[14] Complainant relies on certificate dated 21/01/2011 issued by Saifee Hospital. The certificate issued by the Saifee Hospital described the then prevailing deteriorated condition of the patient's eyes which indicate that the patient developed moderate dry eyes with mild trichiasis and madarosis.
[15] There is no direct authentic material brought to our notice to establish nexus of oral dose of Gatifloxacin (Gatri-400) with development of SJS with TEN except certificate of Saifee Hospital. Opponent no.1 as a general practitioner ought to have followed the rule book to first establish gravity of Urinary Tract Infection (suffered by the patient according to him), by early diagnostic test report prior to prescribing Gatri-400. Opponent nos.2 &3 though opportunity was granted to them to establish that they have followed the standard protocol of treatment to treat Steven Johnson Syndrome with progression of TEN, failed to satisfy. None of the parties filed expert evidence in support of their claims. Therefore, the material relied upon by the parties is the basis for arriving at for our conclusion.
[16] We have to consider the aspect of alleged medical negligence in the light of as to what constitute medical negligence. Medical negligence consists of (a) Legal duty to exercise due care, (b) Breach of said duty, (c) Consequential damage. Professional negligence consists of (a) to exercise a reasonable degree of skill and knowledge and reasonable degree of care, (b) to exercise reasonable care in deciding whether to undertake the case and also deciding what treatment to be given, (c) to extend service with due expertise for protecting the life of the patient and to stabilize condition in the emergency situation, (d) to attend to the patient and not to withdraw the services without giving sufficient notice and (d) to study the symptoms and complaints of the patient carefully and to administer standard treatment.
[17] Medical negligence and professional negligence has been explained by the Hon'ble Apex Court and laid down the rulings for observance by medical professionals. Hon'ble Supreme Court in celebrated case of - Bolam vs. Friern Hospital Management Committee - (1975) 2 All ELR 118 - observed that "negligence in law means this: some failure to do some act which a reasonable man in the circumstances would do, or the doing of some act which a reasonable man in the circumstances would not do; and if that failure or the doing of that act results in injury, then there is a cause of action." Further, it is observed that "A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art." In yet another case of - Laxman Balakrishna Joshi vs. Trimbak Bapu Godbole & ors.- AIR 1969 SC 128 - the Hon'ble Apex Court ruled that "A person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person when consulted by a patient owes him certain duties, viz. a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give or a duty of care in the administration of that treatment. A breach of any of those duties gives a right of action for negligence to the patient. The practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care and competence judged in the light of the particular circumstances of each case is what the law requires." Admittedly, negligence is an essential ingredient of the offence. Medical practitioner would be liable only when his conduct fell below that of the standards of a reasonably competent practitioner in his field.
[18] Twofold questions as raised by us at the outset for our consideration are required to be answered in negative in view of aforesaid observations and the rulings of the Hon'ble Supreme Court in the matters referred to para no.17 vis-à-vis our finding above. Opponent no.1 without carrying diagnostic test to assess the gravity of Urinary Track Infection [UTI] prescribed Gatri 400 mg - [Gatifloxacin] to the complainant patient. Opponent no.1 fell short of guiding principle laid down by the Hon'ble Supreme Court for the medicos in the matter of - Bolam vs. Friern Hospital Management Committee - (1975) 2 All ELR 118 . Therefore, the complainant has cause of action against the opponent no.1. Opponent no.2 and 3 attached to the opponent no.4 hospital failed to bring on record that they have followed the standard protocol of treatment and exercised a reasonable degree of care and competence while attending the complainant/patient, as laid down by the Hon'ble Supreme Court in the matter of - Laxman Balakrishna Joshi vs. Trimbak Bapu Godbole & ors.- AIR 1969 SC 128. The opponent no.2 and 3 admitted that the complainant/patient was diagnosed with SJS [Stevens Johnson Syndrome] with progression to Toxic Epidermal Necrolysis [TEN] which was life threatening condition where mortality was not uncommon. On going through treatment part from the authentic text book relied upon by the complainant - Harrisons' Principles of Internal Medicine - 17th Edition - Part II - Para - Stevens Johnson Syndrome and Toxic Epidermal Necrolysis. Procedure prescribed by treatment with SJS with progression of TEN prescribed therein reads as below:-
"The best results come from early diagnosis, immediate discontinuation of any suspected drug and supportive therapy paying close attention to ocular complications, often in burn units or intensive care units."
This is further supplemented by the complainant by bringing on record treatment part for SJs with progression of TEN Skin Disease and Sexually Transmitted Infections - 6th Edition - By Uday Khopkar - Chapter 14 - dealing with "Therapy of Toxic Epidermal Necrolysis which reads as follows:-
"Patients must be managed in an Intensive Care Unit. A short course of high dose steroids early in the course of the disease may be beneficial.......".
Opponent no.2 and 3 did not come forward to submit that treatment of patient outside ICU was justified for almost 5 days in opponent no.4 hospital. In view of this, complainant patient has accrued cause of action against them.
[19] In view of the observations aforesaid, we are of the opinion that opponent no.1 as a general practitioner did not adhere to the norms laid down before prescribing tablet gatri 400 (gatifloxacin ) by carrying the diagnostic test to establish severity of Urinary Tract Infection (according to him patient was with complaint of Urinary Tract Infection). Opponent nos.2 & 3 attached to opponent no.4 have failed to establish that they have followed the standard protocol of treatment as per the rule book to conform with the rulings of Apex Court. In view of this, they too are negligent and deficient in service. Undoubtedly complainant and her family underwent mental trauma. With aforesaid observations, we are inclined to allow the consumer complaint in part and award reasonable compensation. Complainant is an young woman stated to be a practicing Homeopath, underwent mental trauma and physical hardship. Lump sum compensation of Rs.20 lacs [Rs.Twenty Lacs only] together with reasonable rate of interest and cost of litigation will meet the ends of justice. Hence, we proceed to pass the following order.
ORDER (1) Consumer complaint is allowed in part as follows:
(2) Total compensation as quantified above is Rs.20 lac [Rs. Twenty Lac only] shall be payable by the opponents to the complainants with interest as follows:
(i) Opponent no.1 is directed to pay Rs.5 lac [Rs.Five Lac only] to the extent of 25% of total liability together with interest @9% p.a. from the date of filing of complaint i.e.26/07/2011 within 60 days from today, failing which rate of interest shall be enhanced to 12% p.a.till the amount is realized.
(ii) Opponent no.2 is directed to pay Rs.5 lac [Rs.Five Lac only] to the extent of 25% of total liability together with interest @9% p.a. from the date of filing of complaint i.e. 26/07/2011 within 60 days from today, failing which rate of interest shall be enhanced to 12% p.a. till the amount is realized.
(iii) Opponent no.3 is directed to pay Rs.5 lac [Rs.Five Lac only] to the extent of 25% of total liability together with interest @9% p.a. from the date of filing of complaint i.e. 26/07/2011 within 60 days from today, failing which rate of interest shall be enhanced to 12% p.a. till the amount is realized.
(iv) Opponent no.4 is directed to pay Rs.5 lac [Rs.Five Lac only] to the extent of 25% of total liability together with interest @9% p.a. from the date of filing of complaint i.e. 26/07/2011 within 60 days from today, failing which rate of interest shall be enhanced to 12% p.a. till the amount is realized.
(3) Each of the opponent shall also pay costs quantified to Rs.6,250/- [Rs.Six Thousand Two Hundred Fifty only] to the complainants [totaling to Rs.25,000/- (Rs.Twenty Five Thousand only)].
(4) Registrar (Legal) of this Commission is directed to make report about compliance or otherwise of the above order by the opponents or each of them after stipulated time mentioned in the order is over for considering prima-facie case whether the cognizance of offence may be taken or otherwise against the opponents u/s.27 of the Consumer Protection Act, 1986, if the order is not complied.
(5) One set of the complaint compilation be retained and rest of the sets be returned to the complainant.
(6) Copies of the order be furnished to the parties free of cost forthwith. Pronounced Dated 4th September, 2015. [ Shashikant A. Kulkarni] PRESIDING MEMBER [ Narendra Kawde] MEMBER