National Consumer Disputes Redressal
Prabha Shankar Ojha vs Dr. Neelmani Rai on 4 November, 2009
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2436 OF 2005 (From the Order dated 23.05.2005 in Appeal No. 11 of 2005 of Bihar State Consumer Disputes Redressal Commission, Patna) PRABHA SHANKAR OJHA PETITIONER VERSUS DR. NEELMANI RAI RESPONDENT BEFORE: - HONBLE MR. JUSTICE ASHOK BHAN, PRESIDENT HONBLE MR. B.K. TAIMNI, MEMBER FOR THE PETITIONER : MR. RAJESH CHADHA, ADVOCATE. FOR THE RESPON DENT : MR. L.K. SINGH, ADVOCATE. PRONOUNCED ON : 04.11.2009 O R D E R
ASHOK BHAN J., PRESIDENT Petitioner herein, who was the complainant before the District Consumer Disputes Redressal Forum, Buxer (hereinafter referred to as the District Forum for short), has filed the present Revision Petition against Order dated 23.05.2005 passed by the Bihar State Consumer Disputes Redressal Commission, Patna (hereinafter referred to as the State Commission for short) whereby and whereunder, the State Commission has set aside the Order passed by the District Forum in Complaint No. 95 of 2004. District Forum had awarded a sum of Rs.19,47,000/- to the petitioner to be paid by the respondent for medical negligence.
Briefly stated, the facts of the case are:-
Petitioner was suffering from fever and bodyache for the last 3-4 days and he consulted the respondent who is a private practitioner at Buxer town on 08.06.2004. Respondent prescribed injection Larigo (Chloroquine) 4 CC IM for 3 days. The condition of the patient did not improve and, on 11.06.2004, respondent prescribed Pathological Test of Blood for Malaria Parasite and Widal Test for Typhoid, which on Report dated 11.06.2004, showed M.P. (Malaria Parasite) not seen but Widal Test was found to be positive. After looking at the Report, respondent prescribed Paraxin 500 mg thrice for 5 days (Chloramphenicol) but when the condition further deteriorated, the respondent prescribed Dexona and Perperinorm with Glucon D and Calpol. Still the condition of the patient did not improve and the respondent again got examination of blood test done for Malaria Parasite and Serum Bililirubin on 18.06.2004. The Report showed Malaria Parasite negative and Serum Bililirubin normal which again indicated that it was neither a case of Malaria nor Jaundice but still the Opposite Party/respondent continued his treatment for Malaria by giving another injection by brand name Larither (Artemether) meant for Chlorquine resistant Malaria. According to the petitioner, in spite of Pathological Report that the petitioner was suffering from Typhoid without any positive M.P. (Malaria Parasite) test, prescribed treatment for Malaria by giving injection Larither (Artemether) side-by-side.
Respondent also prescribed Paraxin for treatment of Typhoid without withdrawing the medicine for Malaria. Overdose of Anti-Malaria Drugs produced Arrhythmias (Cardiac and Respiratory Problem) and the petitioner was immediately rushed to Varanasi at Ramkrishna Mission Home of Service, where the petitioner was treated for Enteric Fever (Typhoid) on conservative line and petitioners life was saved. That from the treatment given by Ramkrishna Mission Home of Service, Varanasi, it is clear that respondent did not take due care in giving treatment to the petitioner inasmuch as it completely overlooked the entire Pathological Report and continued giving Anti-Malia drug to the petitioner though there was no indication of Malaria as is evident from the Pathological Report. Petitioner, thereafter, filed a Complaint before the District Forum against the respondent claiming a sum of Rs.19,47,000/- under various heads.
Respondent, on being noticed, appeared before the District Forum and filed her Written Statement. Respondent, in the Written Statement, took the plea of confirming the treatment of Malaria. It was contended that simply because some other Doctor might have prescribed some other medicines cannot be said to be negligent act and deficiency in service on his part for want of care. That there was not even iota of evidence of Medical Expert or Medical Practitioner in support of the contention that respondent did not exercise due care and caution in giving treatment to the petitioner or was negligent in any other way. There is no evidence to show that complainant suffered due to the drugs prescribed by the respondent. That in the light of Annexures I, II, III and IV of the Written Statement and the Clinical Examination of the patient, it is clear that the respondent had rightly prescribed the drugs for Malaria to the complainant and, after Pathological Test, prescribed the medicines for Typhoid as well. It was further contended that even Ramkrishan Mission Home Service, Varanasi, while prescribing the medicine for Typhoid, also prescribed medicine for Malaria. It was further contended that petitioner is not at a consumer under Section 2(1)(d) of the Consumer Protection Act, 1986 (hereinafter referred to as the Act for short) as no fees was paid by the petitioner to the respondent for the treatment given. That the claim filed by the petitioner under various heads is without any basis and imaginary. Thus, in view of the above objections, respondent prayed for dismissal of the Complaint.
District Forum, after taking evidence of the parties, allowed the complaint and directed the petitioner to pay a sum of Rs.19, 47,000/- within two months from the date of receipt of copy of the Order failing which a proceeding u/s. 27 of the Act shall be initiated against the respondent.
Aggrieved against the aforesaid Order, the respondent filed an Appeal before the State Commission. The State Commission allowed the Appeal, set-aside the Order of the District Forum holding that the Doctor had taken all possible care while treating respondent and prescribed medicines as per norms of medical ethics and the award of such huge compensation on various counts had got no legs to stand and appears to be fictitious and imaginary.
Aggrieved by the Order passed by the State Commission, petitioner-complainant has filed this Revision Petition.
Counsel for the parties have been heard at length.
It is, by now, well-settled that onus of proof is on the party who alleges medical negligence. This has further been elaborated in subsequent Judgments that mere statement of party is not enough. Allegation of negligence has to be proved with the help of expert medical opinion. Admittedly, in the present case, petitioner has not brought on record any expert evidence to show as to what the Doctor did was not to be done as per accepted medical practice or what he should have done as per accepted medical practice, which he failed to do. In Halsburys Laws of England, Volume 6, 3rd Edition, pages-17-18, medical negligence has been defined to mean:
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22. Negligence: duties owed to the patient.
A person who holds himself oat as ready to give medical (a) advice or treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person, whether he is a registered medical practitioner or not, who is consulted by a patient, owes him certain duties, namely, a duty of care in deciding whether to undertake the case; a duty of care in deciding what treatment to give: and a duty of care in his administration of that treatment
(b). A breach of any of these duties will support an action for negligence by the patient(c).
It is not the case of the petitioner/complainant that respondent was not qualified to handle the case. The only allegation made is that the line of treatment adopted by the respondent-Doctor was defective as the Doctor prescribed medicine for Malaria even though the Pathological Test indicated that there was no Malaria. This cannot be accepted for the simple reason that even Ramkrishan Mission Home Service, Varanasi, in the discharge slip, had prescribed anti-malaria medicine which shows that the line of treatment adopted by the respondent was not faulty, rather the same was in line with the treatment provided by the hospital where the petitioner was admitted subsequently. As stated above, the negligence in giving treatment should have been proved by leading expert evidence. Failure to do so has to be held against the petitioner. Honble the Supreme Court of India in paragraph 22 of its Judgment in Jacob Mathew v. State of Punjab and Another reported in (2005) 6 SCC 1, held as under:-
In the opinion of Lord Denning, as expressed in Hucks v. Cole, [1968] 118 New LJ 469, a medical practitioner was not to be held liable simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference of another. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
In case, the Doctor brings in his task of providing medicine, a reasonable degree of skill and knowledge and exercise the same to a reasonable degree, then, the medical practitioner cannot be held guilty for the medical negligence only because someone else of better skill and knowledge had prescribed different treatment or operated in a different way. Petitioner failed to produce any evidence to show that the line of treatment adopted by the respondent was not in line with the reasonable body of medical practitioners. Mere difference of opinion in adopting different line of treatment than the one adopted by the medical practitioner does not prove that the medical practitioner was guilty of medical negligence. Respondent-Doctor had taken due care and caution. The Doctor cannot be held negligent simply because something went wrong. He also cannot be held liable for making one choice out of two or for favouring one School rather than another. He can be held guilt only where his conduct fell below that of the standards of a reasonably competent practitioner in his field, so much so, that his conduct might be deserving of censure or inexcusable.
There is no expert evidence to show that due to the respondents administering the drugs for Malaria Parasite, the petitioner/complainant suffered, in any way, detrimental to his health or was hazardous to his life.
In the absence of such evidence, it cannot be held that the respondent-Doctor was guilty of causing damage to the health of the petitioner. We agree with the view taken by the State Commission and find no infirmity in the Order passed by it. Dismissed. No costs.
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(ASHOK BHAN J.) PRESIDENT .
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(B.K. TAIMNI) MEMBER