National Consumer Disputes Redressal
Dr.Vinubhai J.Patel & Anr. vs Thakkar Kalpesh Kumar G. & Ors. on 18 January, 2012
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 3203 OF 2008 (Against order dtd.29.11.2007 in appeal no. 332/2000 of the State Commission, Gujarat) Dr. Vinubhai J. Patel & Anr. .......Petitioner (s) Vs. Thakkar Kalpesh Kumar G. & Ors. .......Respondent (s) BEFORE: HON'BLE MR. JUSTICE ASHOK BHAN, PRESIDENT HONBLE MRS. VINEETA RAI, MEMBER For Petitioners : Mr. Akshit Gadhok, Advocate for Dr. Sushil Kumar Gupta, Advocate For Respondents : Mr.M.K.Mevada & Mr.M.C.Thakur, Advocates Pronounced on 18th January, 2012 ORDER
PER VINEETA RAI, MEMBER This revision petition has been filed by Dr.Vinubhai J.Patel and another (hereinafter referred to as the Petitioners) being aggrieved by the order of the State Consumer Disputes Redressal Commission, Gujarat (hereinafter referred to as the State Commission) in favour of Thakkar Kalpesh Kumar G. (Respondent No.1) and others who were the original complainants before the District Forum.
In the complaint before the District Forum, Respondent No.1has stated that his wife, Mallikaben K.Thakkar (hereinafter referred to as the Patient), was taken to the Petitioner/doctors hospital on 21.03.1994 for treatment of loose motions and nausea and after examining her, Petitioner/doctor put her on an IV drip. She was thereafter discharged at 8.00 pm and was asked to come back next day for follow-up check up. Respondent accordingly brought the patient back when she was given an injection and later also bottle treatment. However, after 15 minutes the patient started foaming from the mouth and fainted, so the intravenous bottle was changed and a new bottle was applied by the Compounder since the Petitioner/doctor was not present. Thereafter, Petitioner called for an ambulance and the patient was shifted to Karnavati Hospital as per the Petitioner/doctors advice but there was no improvement in her condition and she died within an hour of admission in that hospital. The medical authorities at Karnavati Hospital informed the Police Station regarding the patients death and requested for post-mortem etc. According to the Respondent, his wifes death occurred due to a severe adverse reaction to the injection given to her by the Petitioner/doctor without conducting necessary tests and also because during the critical period of the treatment Petitioner/doctor went away leaving his Compounder incharge.
Respondent, therefore, served a legal notice to the Petitioner and since there was no response, he filed a complaint before the District Forum on grounds of medical negligence and deficiency in service seeking compensation of Rs.4,95,000/- since the death of his wife had deprived him of his spouse and his two young children had become motherless.
The allegations of medical negligence and deficiency in service were denied by Petitioner/doctor who stated that on the first day i.e. on 21.03.1994 Respondent had brought his wife for treatment with a history of diarrhea and vomiting and after examining her she was given intravenous fluids as a part of the treatment. She was also advised to give a stool sample and remain in the hospital but against medical advice, Respondent took her home and brought her back next day with complaints of high fever, rigors and headache. Since these were symptoms of cerebral malaria which can be fatal if not treated immediately she was given a quinine injection and when her condition did not improve and she began losing consciousness, all steps were taken to revive her under the supervision of two experienced doctors and the Petitioner who is himself an MD. Unfortunately, despite immediate medical attention and vigorous cardiac pulmonary resuscitation, the patient could not be saved and passed away in Karnavati Hospital.
Petitioner denied that the death occurred because of adverse reaction to the quinine injection through the intravenous route. The post-mortem report has also confirmed that the death occurred because of appendicitis and not because of an adverse reaction to the quinine injection.
The District Forum after hearing both parties dismissed the complaint by concluding that even if it is accepted that due to misdiagnosis that the patient had cerebral malarial and was therefore, given a quinine injection, this does not amount to medical negligence as ruled by the National Commission in a number of cases including in Dr.Subramaniam & Ors. Vs. B. Krishna Rao 1976 CPJ 233 (NC). The District Forum also did not accept the Respondents contention that the Petitioner/doctor had left the patient by giving the responsibility for her treatment to the Compounder in the absence of any evidence to support this contention including not cross-examining the Compounder. Further, the Head of the Department of Medicine of V.S. Hospital, Ahmedabad who was cross-examined in this case has confirmed that no adverse effect of any injection or fluid was noted during the post-mortem/viscera examination of the patient. Apart from this, as per Modis Jurisprudence an adverse effect of quinine which is sufficient to cause death if the administered dosage is 8 grams or more whereas in the instant case Respondent was given only 2 ml. of quinine. The post-mortem report also indicated that the death occurred due to the diseases in the stomach cavity and appendicitis and not because of adverse effect of quinine infection.
Aggrieved by this order, Respondents filed an appeal before the State Commission which allowed the appeal and concluded that the Petitioner was guilty of medical negligence because he diagnosed the patient as suffering from cerebral malaria without any diagnostic or blood tests to confirm the same and gave her an intravenous injection of quinine without conducting the necessary tests to rule out any adverse effects. The State Commission relied on the expert evidence of the doctor produced by the Respondent that intravenous injection of quinine can cause a fatal fall in the blood pressure of the patient and create respiratory problems resulting in death. The State Commission also drew adverse inference from non-production of medical papers including the case history of the treatment given to the wife of the Respondent as also Petitioners not responding to the legal notice given by him to the Petitioner/doctor. The State Commission relied on judgments of State Commission, Andhra Pradesh in Dev Rani & Ors. Vs. N Prakash Rao & Ors. 2002(3) CPR 258 and State Commission, Madhya Pradesh in Dr.Kavita Saluja & Ors. Vs. Akila Bank & Ors. 2005(3) CPR 519, wherein it was held that if any medicine is given without doing tests for adverse effects to the patient, then it is considered medical negligence.
While setting aside the order of the District Forum, the State Commission directed Petitioners No.1 and 3 to jointly and severally pay Rs.3,25,000/- to the Respondents with interest @ 6% from the date of complaint.
Aggrieved by this order, the present revision petition has been filed.
Learned Counsel for both parties made oral submissions. Counsel for Petitioner reiterated that there was no evidence of any medical negligence or deficiency in service by Petitioner in the treatment of the patient. Patient had reported with symptoms which were suggestive of cerebral malaria and since quinine is the drug of choice for treatment in such cases which if not treated immediately has high mortality, the patient was rightly administered a quinine injection. Counsel for Petitioner further stated that even if an error in diagnosis was made, the Petitioner/doctor could not be held guilty unless it was proved that he fell short of standards of reasonable medical care [N.T.Subramanya Vs. Dr.B.Krishna Rao 1996(2) CPR 247(NC)]. In the instant case, there is no evidence to indicate that the Petitioner did not give reasonable medical care and precaution to the patient who was attended to and treated by the Petitioner on both days on the basis of his best professional judgment. It was further contended that the post-mortem and viscera report also confirmed that the patients death was not caused because of any adverse reaction to the quinine injection but because of appendicitis and abdominal infections.
Since the patient had complained to the Petitioner/doctor regarding abdominal pain and rigidity which are classical symptoms of appendicitis, it was difficult for any medical professional to have diagnosed the same. Further, burden to prove medical negligence was on the Respondent and he has failed to do so.
Counsel for Respondent on the other hand reiterated that it was not in dispute that the patient was diagnosed with cerebral malaria without taking the required blood and other tests to confirm the diagnosis. Thereafter, she was also given a quinine injection without conducting the necessary adverse reaction tests which proved to be fatal in the instant case.
Apart from this, Petitioners contention that two specialists were called to attend to the patient is not confirmed since no affidavit or any evidence in support of this was filed. The post-mortem report also clearly indicated that the patient did not have cerebral malaria and that she had an abdominal infection and appendicitis for which she was not treated. If the Petitioner had carefully examined the patient he would have detected her actual medical condition and given her the right treatment. Under these circumstances there is no doubt that the patient died because of the medical negligence on the part of the Petitioner/doctor who not only diagnosed the case but gave wrong treatment. It is well established in medical jurisprudence that if a medical practitioner does not take a reasonable precaution in treating the patient, he is guilty of medical negligence. In the instant case, the Petitioners failed on this account and the State Commission had rightly held them guilty of medical negligence.
We have heard the learned Counsel for both parties and have gone through the evidence on record.
It is not in dispute that Respondents wife was suffering from nausea, stomach problems and high fever when she was brought to the Petitioner/doctors hospital on 21.03.1994 and again the next day. It is also a fact that Petitioner/doctor did not conduct any blood tests or diagnostic tests to ascertain the actual cause of her illness. The symptoms i.e. lose motions, vomiting, fever, headache and rigors are not exclusive to cases of cerebral malaria and could have been caused because of other medical conditions. Therefore, it is reasonable to conclude that if the Petitioner/doctor had conducted a thorough medical examination of the patient including of the abdominal area then he would no doubt have noted the abdominal rigidity etc. since the patients death within a couple of days confirms that she already had advanced appendicitis when she visited the Petitioner. We are of the view that Petitioner misdiagnosed the case as being cerebral malaria because he did not conduct any clinical or blood tests and reached this conclusion in a perfunctory and prima facie manner. Administration of quinine intravenously which as is well established had medical risks, was also done without taking due care to rule out adverse reactions. The post-mortem report that the patient died because of appendicitis and abdominal diseases and not because of cerebral malaria does not absolve the Petitioner/doctor of his negligence because it only confirms that had he conducted the required diagnostic and other tests he would not have misdiagnosed the case and consequently given the patient wrong radical treatment. What constitutes medical negligence has been laid down in a litany of judgments which have reaffirmed inter alia that the test for determining medical negligence as laid down in Bolams case (Bolam Vs. Friern Hospital Management Committee (1957)1 WLR 582) would hold good in its applicability in India. While adjudicating allegations of medical negligence on the part of a doctor on the touchstone of Bolams test, three questions are relevant: (i) Whether the doctor in question possessed the medical skills expected of an ordinary skilled practitioner in the field at that point of time; (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 of professional practitioners in the field and (iii) whether the standards of skills/knowledge expected of the doctor, according to the said body of medical opinion, were of the time when the events leading to the allegation of medical negligence occurred and not of the time when the dispute was being adjudicated. If the present case is examined in the light of the above three issues, it is clear that even though Petitioner was a qualified doctor, he utterly failed in adopting the proper clinical observation and conducting diagnosis including diagnostic tests and treatment in the instant case which would have been adopted by a doctor of an ordinary skill.
The symptoms of appendicitis and stomach infection are not difficult to detect if the patient had been properly examined by the Petitioner/doctor both through clinical and diagnostic tests which admittedly Petitioner failed to do.
For the above reasons, we agree with the findings of the State Commission that the Petitioner was guilty of medical negligence and uphold the same. Petitioners No.1 and 3 are directed to jointly and severally pay Rs.3,25,000/- to Respondents with interest @ 6% per annum as ordered by the State Commission within six weeks from the date of receipt of a copy of this order.
The Revision Petition is disposed of on the above terms.
Sd/-
..
(ASHOK BHAN J.) PRESIDENT Sd/-
..
(VINEETA RAI) MEMBER /sks/