State Consumer Disputes Redressal Commission
Suresh Yadav vs Smt.Kirti Baghel on 9 January, 2017
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION
PANDRI, RAIPUR (C.G.)
Appeal No.FA/2016/560
Instituted on : 07.10.2016
Suresh Yadav, S/o Late Shankarlal Yadav,
Aged 53 years, General Practitioner,
Address : Ostwal Line, Tethwar Para, Rajnandgaon,
Tehsil and District Rajnandgaon (C.G.) ..... Appellant
Vs.
Smt. Kirti Baghel, W/o Shri Kamlesh Baghel,
Aged 28 years, Caste - Satnami,
Address : Village, P.O. & Police Station - Somni,
Tehsil & District Rajnandgaon (C.G.) .... Respondent
PRESENT: -
HON'BLE JUSTICE SHRI R.S. SHARMA, PRESIDENT
HON'BLE MISS HEENA THAKKAR, MEMBER
HON'BLE SHRI D.K. PODDAR, MEMBER
HON'BLE SHRI NARENDRA GUPTA, MEMBER
COUNSEL FOR THE PARTIES :-
Shri R.K. Bhawnani, for the appellant.
Shri Dudhnath Barle, Power of Attorney Holder, for the respondent.
ORDER
Dated : 09/01/2017 PER: - HON'BLE JUSTICE SHRI R.S. SHARMA, PRESIDENT This appeal is directed against the order dated 06.08.2016, passed by the District Consumer Disputes Redressal Forum, Rajnandgaon (C.G). (henceforth "District Forum" for short), in Complaint Case No.15/2015. By the impugned order, learned District Forum, has allowed the complaint of the complainant and directed that:-
// 2 // (01) The O.P. will pay within a period of one month from the date of order, a sum of Rs.10,00,000/- (Rupees Ten Lakhs) along with interest @ 06% p.a. from the date of filing of the complaint i.e. 19.03.2015 till date of payment, to the complainant.
(02) The O.P. will pay within a period of one month from the date of order a sum of Rs.1,00,000/- (Rupees One Lakh) towards compensation for mental agony and Rs.5,000/- (Rupees Five Thousand) towards cost of litigation, to the complainant.
2. Briefly stated the facts of the complaint of the complainant are that the O.P. introduced himself as a doctor and he visited village to village for providing treatment. Due to introduction given by the O.P. on 16.10.2011, the complainant took her daughter Ku. Lahana Baghel to the O.P. at Village Somni, at that time Ku. Lahana Baghel was suffering from cold, cough and fever. The O.P. told the complainant that he is in hurry, therefore, directed her to bring the patient in his clinic and he gave address of his clinic to the complainant. The complainant went to the clinic of the O.P. along with her daughter Ku. Lahana Baghel on 16.10.2011 itself. The O.P. received a sum of Rs.100/- as consultation fees from the complainant The O.P. gave prescription of medicines and also advised for x-ray of chest of Ku. Lahana Baghel. The complainant purchased medicines from the Medical Stores. The complainant also went to Dr. Kotadia's X-Ray Patho Clinic for x-ray on 17.10.2011 where Dr. Kotadia took X-ray of Ku. Lahana Baghel. The // 3 // complainant again went to the clinic of the O.P. on 17.10.2011 along with x- ray report. The O.P. took a sum of Rs.100/- as consultation fees from the complainant and after examining the x-ray report of Ku. Lahana Bahgel, he told the complainant that Ku. Lahana Baghel is suffering from Hilar Adenitis and he also told the complainant that medicines be taken regularly by Ku. Lahana Baghel for 9 months. The O.P. prescribed Mecoxkid tablet along with other medicines. The complainant regularly gave medicines to her daughter, as advised by the O.P. The O.P. also advised the complainant to bring her daughter before him after two months for follow check up. The complainant again went to the clinic of the O.P. on 31.01.2012 along with her daughter Ku. Lahana Baghel. The O.P. again took a sum of Rs.100/- towards consultation fees from the complainant and advised to give medicines prescribed by him to Ku. Lahana Baghel and advised the complainant to bring the patient before him after 1 ½ months. The complainant gave medicines to her daughter as advised by the O.P. The complainant again went to the clinic of the O.P. on 11.03.2012 and the O.P. again took a sum of Rs.100/- as consultation fees. The O.P. advised for taking tablet Mecoxkid and to bring the patient after two months. The above medicine was given by the complainant to Ku. Lahana Baghel. On 18.05.2012, the complainant again went to the clinic of the O.P. The O.P. advised to continue the above medicine. Ku. Lahana Baghel had continuously taken above medicine for 9 months, but her health did not improve. Ku. Lahana Baghel had taken treatment from the O.P. from August, 2012 to January, 2013, but the O.P. did // 4 // not gave prescriptions to her. The health of Ku. Lahana Baghel was not improved, therefore, the complainant took her daughter in the clinic of the O.P. at Rajnandgaon (C.G.) on 28.02.2013. The O.P. told the complainant that Ku. Lahana Baghel is suffering from cough, cold and fever along with Pneumona and prescribed medicines. The complainant gave medicines to Ku. Lahana Baghel, as advised by the O.P., but her health was not improved. The O.P. without obtaining pathological report gave treatment to Ku. Lahana Baghel. The health of Ku. Lahana Baghel, was not improved, but the O.P. did not refer her to child specialist. On 17.06.2013, the complainant took her daughter to Dr. D.L. Tamrakar, who is a Pediatrician. Dr. D. L. Tamrakar, after perusal of prescription and pathological report, told the complainant that Ku. Lahana Baghel is not suffering from Hilar Adenitis disease, but she is suffering from any other serious disease and the O.P. has wrongly prescribed medicines to her and treated in wrong direction. Dr. D.L. Tamrakar, referred Ku. Lahana Baghel to Jawaharlal Nehru Hospital & Research Centre, Sector 9, Bhilai (C.G.) (J.L.N Hospital, Sector 9, Bhilai) on 20.06.2013. Ku. Lahana Baghel was admitted in J.L.N Hospital, Sector 9, Bhilai on 20.06.2013. Dr. of J.L.N. Hospital, Bhilai told the complainant that Ku. Lahana Baghel is not suffering from Hilar Adenitis disease and the O.P. without obtaining pathology report advised for taking medicines for Hilar Adenitis. The health of Ku. Lahana Baghel was not improved, therefore, on 24.06.2013, J.L.N. Hospital, Sector 9, Bhilai referred her to higher centre for treatment. Ku. Lahana Baghel was take to Mittal Hospital, Raipur, but her health was not // 5 // improved. Dr. Suman Mittal told the complainant that Ku. Lahana Baghel is suffering from Blood Cancer and she referred Ku. Lahana Baghel to Tata Memorial Hospital, Mumbai. The complainant went to Tata Memorial Hospital along with her daughter by air, where her daughter was admitted on 26.06.2013. The doctors disclosed that Ku. Lahana Baghel is not suffering from Hilar Adenitis and without obtaining pathology report tablet Mecoxkid, was prescribed to Ku. Lahana Baghel continuously for 9 months and the O.P. did not refer the patient to higher centre. Thus, the O.P. committed deficiency in service and unfair practice. The complainant suffered financial loss. The O.P. is not competent to treat the children. The O.P. did not possess degree or diploma and he is not competent to give allopathy treatment. The complainant obtained information from Dr. Praween Kumar Agrawal, District Health Officer. From the information given by him, it appears that the O.P. is not competent doctor to treat the disease Hilar Adenitis and the O.P. without obtaining pathology report, advised for taking medicines, which comes in the category of medical negligence, therefore, the complainant is entitled to get compensation as prayed by her in the complaint.
3. The O.P. has filed his written statement and averred that the O.P. did not go to Somni and also did not tell the complainant to come to his residence. So far as prescription is concerned, the same has been given by the doctor. The medicines was given for cough and cold and instruction was // 6 // given for x-ray on 16.10.2011. On 17.10.2011, medicines were given on the basis of Report of Dr. Gambhir Kotadia. Dr. Gambhir Kotadia is possessing degree in subject of X-ray. The Mecoxkid tablet was given to the patient to cure her from Hilar Adenitis disease after obtaining opinion of Dr. Gambhir Kotadia. The above medicine is given when there is inflammation in the lungs. The patient is not consuming medicines as per advice of the doctor. The remaining medicines are being given for increasing blood, to strengthen the bones, to increase appetite as appetizer and orally instruction was given to got examine the blood and urine in pathology. The O.P. did not take consultation fees. The O.P. prescribed the medicines on 31.01.2012 was for destroying creamy, increasing blood, and to increase to increase appetite as appetizer, which increased the resistance power of the body. The O.P. also instructed the complainant for x-ray of the chest, but the complainant did not comply his direction. On 18.05.2012 the O.P. prescribed medicine and also instructed the complainant for x-ray. On 25.02.2013 after examining the fever, the O.P. instructed the complainant for examination of cough, which was not complied by the complainant. The daughter of the complainant Ku. Lahana Baghel was treated at various places, but the complainant suppressed this fact. The O.P. told the complainant orally several time to take her daughter to specialist for treatment but the complainant had avoided to do so. On 17.06.2013, in the prescription slip of Dr. Tamrakar, there was direction for pathology test, but the complainant did not comply the above direction. Symptoms of Pneumoina were found. Dr. Praween Ku. Agrawal did not // 7 // examine the child. The O.P. is having degree of B.E.M.S. Prior to taking treatment from the O.P., the daughter of the complainant was treated by Dr. Damle, who is running private clinic at Durg. Earlier the daughter of the complainant was admitted in Sector 9 Hospital. The above fact has been suppressed by the complainant. So far as authorization is concerned, in B.E.M.S. degree, one subject of Allopathy medicine is also included and doctor is also authorised to give allopathic medicines at primary stage. The medicines which were mentioned by the O.P. in prescription are are such type of medicines which are having no side effect. The complainant did not mention in the complaint that how much quantity of medicines she had given to her daughter. The complainant is having no right to challenge Dr. Gambhir Kotdadia, who is having M.B.B.S. degree and is an expert doctor Dr. Praween Kumar Agrawal did not treat the patient and also did not issue any prescription. The averments made by the complainant in the complainant and documents are contradictory. The complainant earlier filed a complaint before the District Forum, which was dismissed on the basis of jurisdiction. The complainant is not entitled to get any compensation from the O.P. The O.P. had treated the daughter of the complainant on the basis of the opinion given in the X-ray report and he did not give any medicines on his own discretion which adversely affect the body of the patient. The complaint be dismissed with compensatory cost.
// 8 //
4. The complainant has filed documents. Document No. 1 is treatment slip dated 16.1.2011 issued by the O.P., document No.2 is treatment slip dated 17.10.2011 issued by the O.P., document No.3 is treatment slip dated 31.01.2012 issued by the O.P., document No.4 is treatment slip dated 11.03.2012 issued by the O.P., document No.5 is treatment slip dated 18.05.2012 issued by the O.P., document No.6 is treatment slip dated 28.02.2013 issued by the O.P., document No.7 is X -Ray Report dated 17.10.2011, document No.8 is treatment slip dated 17.06.2013 issued by Dr. D.L. Tamrakar, document No.9 is Pathology Reported dated 17.06.2013, document No.10 is slip dated 20.06.2013 issued by Sector 9 Hospital, Bhilai, document No.11 is Discharge Summary with treatment slip dated 24.06.2013, document No.12 is treatment slip of Dr. Suman Mittal dated 25.06.2013, document No.13 is document issued by Mittal Hospital on 24.06.2013, document No.14 is referral slip dated 24.06.2013 issued by Dr. Suman Mittal, document No.15 are treatment slips of Tata Memorial Hospital dated 26.06.2013, document No.16 is Certificate issued by Tata Memorial Hospital, document No.17 is slip of Dr. Praween K. Agrawal dated 27.02.2015, document No.18 is legal notice dated 07.02.2014 sent to the O.P. along with postal receipt, document No.19 is reply sent by the O.P. dated 04.06.2014, document No.20 is postal receipt, document No.21 is reply of the O.P. dated 15.07.2014. The complainant has also filed summary bill dated 31.10.2014, discharge ticket, treatment slip, rail tickets and air tickets, treatment bills.
// 9 //
5. The O.P. has not filed any documents.
6. Learned District Forum, after having considered the material placed before it by the complainant, has allowed the complaint and directed the O.P. to pay the amounts to the complainant, as mentioned in para 1 of this order.
7. Shri R.K. Bhawnani, learned counsel appearing for the appellant (O.P.) has argued that the appellant (O.P.) is a qualified doctor and the medicine was given by him to Ku. Lahana Baghel for cold and cough and the appellant (O.P.) advised the respondent (complainant) for x-ray of Ku. Lahana Baghel on 16.10.2011. On the basis of X-ray report given by Dr. Kotadia's X-Ray Patho Clinic, the appellant (O.P.) prescribed Mecoxkid tablet to Ku. Lahana Baghel to cure her from Hilar Adenitis. The above medicine is given when there is inflammation in the lungs. Ku. Lahana Baghel was not consuming medicines as per advice of the doctor. The remaining medicines were being given for increasing blood, to strengthen the bones, to increase appetite as appetizer. The appellant (O.P.) instructed the respondent (complainant) for x-ray of chest of Ku. Lahana Baghel, but the respondent (complainant) did not comply with the above instruction given by the appellant (O.P.). Ku. Lahana Baghel was treated at various places and the respondent (complainant) suppressed the material facts. The respondent (complainant) filed instant complaint with malafide intentions. The medicine given by the appellant (O.P.) to Ku. Lahana Baghel had no side effect. The respondent (complainant) did not plead in her complaint that // 10 // how much quantity of the medicine was given by her to the patient Ku. Lahana Baghel. Dr. Gambhir Kotadia is an experienced doctor, therefore, there is no doubt in his report. Dr. Praween Kumar Agrawal, did not treat Ku. Lahana Baghel and he also did not issued prescription to her, therefore, the report of Dr. Praween Kumar Agrawal, is not reliable and acceptable. The respondent (complainant) is utterly failed to prove that the appellant (O.P.) committed medical negligence. The appeal filed by the appellant (O.P.) be allowed and the impugned order passed by the District Forum be set aside. He placed reliance on IAP Pediatric Drug Formulary 2015 with IAP Recommendations on Drug Therapy for Pediatric Illness 4th Edition, at page No.481 and WHO treatment guidelines for drug-resistant tuberculosis, at page No. 22 & judgment of Hon'ble National Commisison in Dr. Shrikant V. Mukewar Vs. Vimal & Ors. 2016 (4) CPR 190 (NC).
8. The respondent (complainant) has filed written arguments in which it is mentioned that the appellant (O.P.) is not possessing requisite degree and he is not possessing degree of M.B.B.S.. The appellant (O.P.) is not competent to give allopathic medicines to the patients. On 16.10.2011, the respondent (complainant) took her daughter Ku. Lahana Baghel to appellant (O.P.) for treatment and after taking consultation fees from the respondent (complainant), the appellant (O.P.) gave prescriptions for medicines and also advised for the x-ray of chest of Ku. Lahana Baghel. X-ray of Ku. Lahana Baghel was taken by Dr. Gambhir Kotadia. After perusal of the x-ray report of Ku. Lahana Baghel, the appellant (O.P.) prescribed medicine to her and Ku.
// 11 // Lahana Baghel was continuously taking above medicines for 9 months, but her health was not improved and was further deteriorated then she was admitted in J.L.N. Hospital, Sector 9, Bhilai, from where she was referred to higher centre for treatment. Thereafter the respondent (complainant) taken her daughter to Mittal Hospital, Raipur where Dr. Suman Mittal after examining Ku. Lahana Baghel told the respondent (complainant) that Ku. Lahana Baghel is suffering from blood cancer and she referred her to Tata Memorial Hospital, Mumbai. The respondent (complainant) went to Tata Memorial Hospital along with her daughter by air, where her daughter was admitted on 26.06.2013. The doctors disclosed that Ku. Lahana Baghel is not suffering from Hilar Adenitis and without obtaining pathology report tablet Mecoxkid was provided to Ku. Lahana Baghel continuously for 9 months and the O.P. did not refer the patient to higher centre. It appears that the appellant (O.P.) has wrongly treated Ku. Lahana Baghel and it is primary duty of the appellant (O.P.) to obtain pathology report and to direct the patient to undergo particular test before treating the patient, but the appellant (O.P.) did not obtain any such type of report and continuously giving Mecoxkid tablet to Ku. Lahana Baghel. Due to negligent act of the appellant (O.P.), she is suffering from blood cancer. The act of the appellant (O.P.) comes in the category of medical negligence. The finding recorded by the District Forum is just and proper and does not call for any interference by this Commission. The appeal filed by the appellant (O.P.) is liable to be dismissed.
// 12 //
9. We have heard learned counsel appearing for the appellant (O.P.) , and have also perused the record of the District Forum and written arguments filed by both the parties.
10. The respondent (complainant) has specifically mentioned that she took her daughter Ku. Lahana Baghel to appellant (O.P.) on 16.10.2011 and the appellant (O.P.) advised for x-ray test, then the respondent (complainant) went to Dr. Kotadia's X-Ray Patho Clinic where Dr. Gambhir Kotadia took x- ray of Ku. Lahana Baghel and gave x-ray report. After examining the x-ray report of Ku. Lahana Baghel issued by Dr. Gambhir Kotadia, the appellant (O.P.) prescribed medicine on 17.10.2011. The appellant (O.P.) has admitted the above facts in his written statement. The respondent (complainant) has filed prescription slips issued by appellant (O.P.). Suresh Yadav on different dates in which it is simply mentioned that he is a General Practitioner and he has not mentioned regarding his qualification in the prescription slips. In the prescription slip dated 16.10.2011 issued by the appellant (O.P.) he advised for X-ray of Chest of Ku. Lahana Baghel. On 17.10.2011 after perusal of the X-ray report of Ku. Lahana Baghel, the appellant (O.P.) prescribed medicine mecoxkid to her. The appellant (O.P.) has pleaded that he further advised the respondent (complainant) for x-ray of Ku. Lahana Baghel, but the respondent (complainant) did not comply with his advice and she did take her daughter for x-ray and did not obtain x-report. The respondent (complainant) did not follow the instructions given by the appellant (O.P.).
// 13 // The above contention of the appellant (O.P.) is not reliable and acceptable. The appellant (O.P.) in the first instance gave advise for x-ray and if again he would have given advise to the respondent (complainant) then it would have been certainly mentioned in the prescription slip of the appellant (O.P.). According to first x-ray report issued by Dr. Gambhir Kotadia, it is essential for the appellant (O.P.) to and to give written advice to the respondent (complainant) in the prescription, but the appellant (O.P.) did not do so.
11. The respondent (complainant) has obtained report from Dr. Praween Kumar Agrawal, who is Senior Medical Officer in District Hospital, Durg (C.G.). His report dated 27.02.2015 is annexed in the record of the District Forum at page No.87 in which it is mentioned thus :-
"1) The children was given Mecoxkid medicines, which is the medicine of T.B. and the same is called (Primary Complex).
(2) For test of the TB disease, the test of HDTCDCEGIZ and MT or PPD is also necessary along with XYCHEN.
(3) If in XYCHEN it is found that the disease is Hilar Adenitis, then the alleged doctor gave medicines for TB, then if the patient was having TB disease then within a one month improvement can be started and thereafter after doing course of 6-9 months continuously it became alright.
// 14 // (4) If there was not improvement from the medicine in one month then another Blood Test ITB IZAUEGN, PPD are necessary from which serious disease or other disease can be ascertained. (5) If the condition of the patient was not improving by treatment then the patient was required to be referred to Pediatrician in writing and to refer for advice.
(6) Advice for all pathological test be given in writing. (7) If the patient is not suffering from TB and medicines is given for TB, the there is adverse effect of the medicines on the patient."
12. In Dr. Laxman Balkrishna Joshi v. Dr. Trimnsk Bapu Godbole and another, AIR 1969 Supreme Court 128, Hon'ble Supreme Court has observed thus :-
"11. The duties which a doctor owes to his patient are clear. 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. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires. The doctor no doubt has a discretion in choosing treatment which he proposes to give to the patient and such discretion is relatively ampler in cases of emergency........".
// 15 //
13. In Chapter 1 : Introduction and diagnosis of tuberculosis in Children, taken through internet, it is mentioned thus :-
"DIAGNOSIS OF TUBERCULOSIS IN CHILDREN :
The diagnosis of TB in children relies on careful and thorough assessment of all the evidence derived from a careful history, clinical examination and relevant investigations, e.g., the tuberculin skin test (TST), chest radiography (CXR) and sputum smear microscopy. Although bacteriological confirmation of TB is not always possible, it should be sought whenever possible, e.g., by sputum microscopy in children with suspected pulmonary TB who are old enough to produce a sputum sample. A trial of treatment with TB medications is not recommended as a method of diagnosing TB in children.
The decision to treat a child should be carefully considered, and once such a decision is made, the child should be treated with a full course of therapy. Most children with TB have pulmonary TB. The proposed approach to the diagnosis of TB in children(see Table 2) is based on limited published evidence and rests heavily on expert opinion."
Clinical examination (including growth assessment) There are no specific features on clinical examination that can confirm that the presenting illness is due to pulmonary TB. Some signs, although uncommon, are highly suggestive of extra-pulmonary TB and the threshold to initiate treatment should be lower. Other signs are common and should initiate investigation as to the possibility of childhood TB.
1. Physical signs highly suggestive of extra-pulmonary TB :
Gibbus, especially of recent onset (vertebral TB) Non-painful enlarged cervical lymphadenopathy with fistula formation.
2. Physical signs requiring investigation to exclude extra-pulmonary TB:
Meningitis not responding to antibiotic treatment, with a sub- acute onset or raised intracranial pressure Pleural effusion Pericardial effusion Distended abdomen with ascites Non-painful enlarged lymph nodes without fistula formation Non-painful enlarged joint.
Signs of tuberculin hypersensitivity : phlyctenular conjunctivitis, erythema nodosum.
// 16 // Documented weight loss or failure to gain weight, especially after being treated in a nutritional rehabilitation programme, is a good indicator of chronic disease in children, and TB may the cause."
Tuberculin skin test :
"A positive TST occurs when a child is infected with M. tuberculosis. However, in children, TST can also be used as an adjunct in diagnosing TB disease, when it is used in conjunction with signs and symptoms of TB and other diagnostic tests. There are a number of TSTs available, but the Mantou skin test is the recommended test."
14. In the instant case, the appellant (O.P.) did not instruct the respondent (complainant) for Tuberculin Skin Test and bacteriological confirmation of TB and blood test etc. of Ku. Lahana Baghel. Merely on the basis of x-ray report, the appellant (O.P.) gave Mecoxkid tablet to Ku. Lahana Baghel continuously for 9 months.
15. The respondent (complainant) took Ku. Lahana Baghel to Dr. D.L. Tamrakar, who is Child Specialist and he advised for blood test and bacteriological test and he referred Ku. Lahana Baghel to higher centre. Thereafter Ku. Lahana Baghel was taken to J.L.N. Hospital, Sector -, Bhilai on 20.06.2013 where she was admitted from 20.06.2013 to 24.06.2013 from where she was referred to higher centre for further treatment. The Department of Pathology, Sector 9 Hospital, Bhilai diagnosed that Ku. Lahana Baghel is suffering from "Acute Myeloid Leukemia (AML - M2)". It means that she was suffering from Progressive Malignant like Blood Cancer. The respondent (complainant) took Ku. Lahana Baghel to Dr. Suman Mittal, // 17 // who is M.D., D.M., and she also diagnosed that Ku. Lahana Baghel is suffering from Myeloid Leukemia. Thereafter further treatment was given to Ku. Lahana Baghel in Tata Memorial Hospital, Mumbai 16 In Ritu Garg Vs. Vineet Sharma & Anr. II (2016) CPJ 167 (NC), Hon'ble National Commission, has observed that "the OP-1 failed to diagnose dislocation at initial stage and put the slab only - Due to delay in diagnosis of subluxation at initial stage the child suffered for 1 ½ months, finally got operated for ulnar osteotomy and redical head annular ligament reconstruction - OP-1 failed in standard of care to examine and diagnose patient at initial stage. Complainant deserves proper compensation."
17. In M/s Singhal Maternity and Medical Centre & Anr. vs. Master Nishant Verma & Ors., 2014 (2) CPR 464 (NC), Hon'ble National Commission has observed thus :-
"11. What constitutes medical negligence based on the touchstone of the Bolam's test [Bolam v. Friern Hospital Management Committee [(1957) 1 WLR 582], is well settled through a number of judgments of the Hon'ble Supreme Court, including in Jacob Mathew Vs. State of Punjab & Anr. (supra) and Indian Medical Association vs. V.P. Shantha and Ors. [(1995) 6 SCC 651]. Gleaned from these judgments, the issues pertaining to what constitutes medical negligence, inter alia are (i) Whether the doctor in question possessed the medical skills expected of an ordinary skilled practitioner in the field at that point of time; and (ii) Whether the doctor adopted the practice of clinical observation diagnosis - including diagnostic tests and treatment) in the case that would be adopted by such a doctor of ordinary skill in accord with (at least) one of the responsible bodies of opinion // 18 // of professional practitioners in the field. In this connection, the Hon'ble Supreme Court in Jacob Mathew (supra) elaborating on the degree of skill and care required of a medical practitioner quoted Halsbury's Laws of England (4th Edn., Vol. 30, para 35, as follows :-
"35. The practitioner must bring to his task a reasonable degree of Skill and knowledge, and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competent, judged in the light of the particular circumstances of each case, is what the law requires, and a person is not liable in negligence because someone else of greater skill and knowledge would have prescribed different treatment or operation in a different way,.."
18. In this context it is relevant to cite case of Kusum Sharma & ORS. Vs. Batra Hospital & Research Centre & ORS., I (2010) CPJ 29 (SC) in which the conclusions under different case laws on the subject of medical negligence have been summarized as under :-
'Para" 90" In Jacob Mathew's case (supra), conclusions summed up by the Court were very apt and some portions of which are reproduced hereunder:
(1) Negligence is the breach of a duty caused by omission to do something which is a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do.
The definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P. Singh) referred to hereinabove, holds good. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: 'duty', 'breach' and 'resulting damage'.
// 19 // (2) Negligence in the context of medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed.
(3) The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.
Para "94'. On scrutiny of the leading cases of medical negligence both in our country and other countries especially United Kingdom, some basic principles emerge in dealing with the cases of medical negligence. While deciding whether the medical professional is guilty of medical negligence following well known principles must be kept in view:
I. Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human // 20 // affairs, would do, or doing something which a prudent and reasonable man would not do.
II. Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.
III. The medical professional expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care.
Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires.
IV. A medical practitioner would be liable only
where his conduct fell below that of the
standards of a reasonably competent
practitioner in his field.
V. In the realm of diagnosis and treatment there is
scope for genuine difference of opinion and one
professional doctor is clearly not negligent
merely because his conclusion differs from that
of other professional doctor.
VI. The medical professional is often called upon to
adopt a procedure which involves higher
element of risk, but which is honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence.
VII. Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable // 21 // skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.
VIII. It would not be conducive to the efficiency of the medical profession if no Doctor could administer medicine without a halter round his neck.
IX. It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessary harassed or humiliated so that they can perform their professional duties without fear and apprehension.
X. The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals/hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners.
XI. The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals."
19. In Poonam Verma vs. Ashwin Patel and others, AIR 1996 Supreme Court 2111, Hon'ble Supreme Court has observed that :-
"42. We cannot ignore the usual practice of almost all the Doctors that when they want pathological tests to be done, they advice in writing in a prescription setting out all the tests which are required to be done.
// 22 // Admittedly, respondent No.1 had not done it in writing. He says that he had advised it orally. This cannot be believed as this statement is contrary to usual code of conduct of medical practitioners".
20. In IAP Pediatric Drug Formulary 2015 with IAP Recommendations on Drug Therapy for Pediatric Illness 4th Edition, at page No.481, it is mentioned thus :-
RIFAMPICIN Drug Class : Antibiotic, Antituberculous drug Uses : 1. Tuberculosis 2. Staphylococcal infections 3. Meningococcal infection prophylaxis 4. H influenza prophylaxis 5. Cholestasis - prurtis.
Dosgae : Tuberculosis in combination with other drugs - Oral 10mg/kg (max 600mg/day) as single morning dose. Meningococcal infections - Oral < 5yr 5mg/kg/dose and > 1yr 10mg/kg/dose (max 600mg/dose) 2 times daily for 2 days for meningococcal infection prophylaxis and for 10-14 days for staphylococcal infections. H influenza prophylaxis - Oral < 3 months 10mg kg and > 3 months 20 mg/kg/dose (max 600mg/dose) once daily for 4 days. Cholestasis - pruritis - 5-10mg/kg (max 600mg) once daily. Dose adjustment in liver failure. Avoid altogether, or reduce doses for tuberculosis and prophylaxis to 8mg/kg daily.
21. In WHO treatment guidelines for drug-resistant tuberculosis, at page No. 22, dose has been prescribed for children, which runs thus :-
"Children These treatment regimen recommendations are based on the pIPD meta- analysis which included data on 974 childred from both published and unpublished data up until September 30, 2014 (GRADE Tables in online Appendix 4; see online Appendix 6 for background, methods and summary of findings). Data sets were eligible if they included a minimum of 3 children (aged <15 years) within a defined treatment cohort who were treated for clinically - diagnosed or bacterilogically-confirmed pulmonary or extrapulmonary MDR-TB, and for whom treatment outcomes were reported, using standard WHO TB case definitions. Eligible study designs included controlled and uncontrolled retrospective and prospective studies and case series; there were no randomized control trials. As a result, the overall quality of the evidence is very low.
// 23 // Children with XDR-TB were excluded from analysis (n=36) as their treatment were considered not to be comparable with those of other MDR-TB patients and their numbers were too low to analyse independently. Children were divided and analysed in two different cohorts, those that were bacteriologically confirmed as having MDR-TB and those who were clinically diagnosed with MDR-TB. The children with bacteriologically-confirmed MDR-TB were more likely to have severe disease; they had statistically- significantly greater levels of malnutrition, severe disease on chest radiography, severe extrapulmonary disease and were more likely to be HIV positive. When making treatment recommendations, preference was given to the results in the bacteriologically-confirmed cohort, as this cohort had a higher certainty of diagnosis. Where data on children were unavailable, evidence from adults was extrapolated to children. The best available evidence has been used to construct recommendations for a regimen that has high relapse-free cure rates, reduced likelihood of death and low emergence of additional resistance while minimizing severe adverse events."
22. The above literature only indicate the quantity of recommended dose of drugs and it is not indicating regarding the treatment of Tuberculosis (TB), therefore, the above literature is not helpful to the appellant (O.P.).
23. In the instant case, the appellant (O.P.) is simply a General Practitioner, he is having B.E.M.S. degree and is not possessing M.B.B.S. Degree. The appellant (O.P.) is not competent to give treatment to the patients for Tuberculosis disease. According to Dr. Praween Kumar Agrawal, if in XYCHEN it is found that the disease is Hilar Adenitis, then the alleged doctor gave medicines for TB, then if the patient was having TB disease then within a one month improvement can be started and thereafter after doing course of 6-9 months continuously it became alright.
24. In the instant case, the health of Ku. Lahana Baghel was not improved and was further deteriorated. Even then the appellant (O.P.) continuously // 24 // prescribed Mecoxkid tablet to her for 9 month. The appellant (O.P.) did not obtain any particular test report for ascertaining T.B., therefore, the act of the appellant (O.P.) comes in the category of medical negligence.
25. Now we shall examine whether the compensation awarded by the District Forum to the respondent (complainant) is just and proper ?
26. The respondent (complainant) has filed treatment papers of Dr. D.L. Tamrakar, J.L.N. Hospital & Research Centre, Bhilai, Mittal Hospital, Raipur and Tata Memorial Hospital, Mumbai. Learned District Forum in para 13 of the impugned order has discussed regarding the expenditure incurred by the respondent (complainant) in treatment of her daughter Ku. Lahana Baghel and after giving thoughtful consideration, awarded a sum of Rs.10,00,000/- towards compensation for medical negligence committed by the appellant (O.P.) and also awarded Rs.1,00,000/- towards compensation for mental agony and Rs.5,000/- towards cost of litigation to the respondent (complainant). The compensation awarded by the District Forum, to the respondent (complainant) is just and proper.
27. In view of above discussions, we find that the impugned order dated 06.08.2016 passed by the District Forum, is reasonable, just and proper and does not suffer from any infirmity or irregularity, hence does not call for any interference by this Commission.
// 25 //
28. Therefore, the appeal filed by the appellant (O.P.) being devoid of any merits, deserves to be and is hereby dismissed. The appellant (O.P.) will also pay a sum of Rs.10,000/- (Rupees Ten Thousand) to the respondent (complainant) towards cost of litigation of this appeal. (Justice R.S. Sharma) (Ms. Heena Thakkar) (D.K. Poddar) (Narendra Gupta) President Member Member Member 09/01/2017 09/01/2017 09 /01/2017 09 /01/2017