SMT. RAVI SUSHA: PRESIDENT
Complainant filed this complaint for getting an order directing opposite parties to pay an amount of Rs.5,00,000/- towards compensation and to pay litigation cost.
Facts of the case in brief are that on 18/12/2021 the complainant approached the OPNo.12 hospital for getting Pentavac PSF vaccination for her minor child; that OP No.2 was in charge at that time and before giving vaccination the complainant has requested OP No.2 to take care and caution; that the complainant paid Rs.3,999/- towards the charges and the OP No.2 administered the vaccine to the baby; that after reaching home the child was crying continuously so she checked the vaccination record and found that the vaccination administered was expired by November, 2021 so she contacted the OPNo.2 was not giving any seriousness and he has insulted the complainant over the phone. But as the vaccine was already administered that was no remedy for that. The complainant has given a complaint against both OPs, through her father before the Mattannur Police station and FIR was registered as crime No.1402/2021. Without applying any professional skill, care and caution, OP No.2 has administered an expired vaccine to the infant. Due to the lack of professional expertise and due to the negligent and careless act of OP No.2, the complainant suffered physical and mental agony. There is deficiency of service and unfair trade practice on the part of the OP No.1 hospital also. Doctor, being the employee under the under the OP and is having master and servant relationship, OP is severally vicariously liable for the act of the other. So both OPs are liable to compensate for the mental agony and hardships suffered by the complainant. The complainant has sent a lawyer notice stating all these facts to the OPs. After acknowledgement of the notice by the OPs they have sent a reply notice with false allegations. Hence this complaint.
After receiving notices OPs 1 and 2 filed version stating that there is no negligence or deficiency in service on the part of the 2nd OP as alleged by the complainant. The complainant is not entitled to get any relief as prayed for in the complaint. It is submitted that as per the routine practice and procedure for consultation in the 1st OP hospital the patients who come up for consultation in the OPD need prior registration and payment of consultation fee. As per records there had been no registration for consultation either in the name of the complainant or in the name of her child on 18/12/2021. The 2nd OP did not see the complainant or her child on 18/12/2021. The statement that the complainant has paid Rs.3,999/- towards charge and the 2nd OP administered the vaccine to the baby is falsely and purposely made with ulterior motive and hence denied. The vaccination is given by qualified and experienced staff nurses in the hospital as per prescription issued by doctors and the 2nd OP had not prescribed Pentavac vaccine to the complainant’s baby on 18/12/2021. In the1st OP hospital administration of vaccine and distribution of medicine are under direct supervision and control of qualified pharmacists. The medicines are distributed on the basis of prescriptions issued by the doctors and on 18/12/2021 the 2nd OP had not prescribed Pentavac vaccine to the complainant’s child. It is learned the at the complainant with a previous prescription approached the duty nurse being her friend and got the vaccine administered which was under the direct supervision of the complainant who is a BDS doctor capable of verifying the medicine, expiry date another particulars. Every medicine is administered after checking the particulars by pharmacist who issued the medicine from pharmacy and counter checked by the duty nurse before administration and hence there has been no chance for administering a medicine after its expiry date in any circumstance. Since the stock medicines are managed digitally each and every expired drugs can be removed then and there. As per the medicine stock report of the hospital pharmacy there was no such expired medicine as on the said date. The allegation that the 2nd OP had insulted the complainant over phone is denied. The OPs issued reply to the complainant’s lawyer’s notice refuting the allegations and denying the liability based on the true account of facts. There was no deficiency in service, negligence or deviation from accepted standard practice on the said of the 2nd OP. Hence, prayed for the dismissal of complaint.
At the evidence stage complainant’s brother filed his chief affidavit as power of Attorney holder of complainant. He was examined as Pw1 marked Ext.A1 to A19. One more witness Dr.Sonia Krishnan, Drugs Inspector office of the Assistant Drugs controller, Kannur was examined as Pw2 from the side of complainant. On the side of OPs, 2nd OP filed his proof affidavit and was examined as Dw1. After that the learned counsels of complainant and OPs made oral argument and also filed their written argument note along with medical literature and judgment of Hon’ble Supreme court.
Complainant’s case is that on 18/12/2021, 2nd OP doctor had administered expired vaccine ‘pentavac’ to her child having 56 days old at OP No.1 hospital. Complainant alleged that due to the administer of the expired vaccine, the complainant’s child is now prone to disease Diphtheria, Tetanus, whopping cough polio etc.
On the other hand OPs submitted that as per records there had been no registration for consultation either in the name of the complainant or in the name of her child on 18/12/2021. The 2nd OP did not see the complainant or her child on 18/12/2021. It is submitted that the vaccination is given by qualified and experienced staff nurses in the hospital as per prescription issued by doctors and the 2nd OP had not prescribed Pentavac vaccine to the complainant’s baby on 18/12/2021.
The 1st pleading raised by the learned counsel of OP is that the complainant did not provide any oral evidence to substantiate her allegation. A power of attorney holder is not competent to provide oral evidence on behalf of the principal. This general principle was reiterated by the National Commission in KrupaNidhi College v Niloofar 2009(2) CPJ(NC)207 and held that power of attorney holder could not have given evidence by way of affidavit in respect of the facts which are in exclusive knowledge of the complainant. Since there is no oral evidence from the complainant, all the assertions in the complaint remain unproven. Pleadings do not constitute evidence.
The question to be considered is whether power of attorney can step into the shoes of his principal for tender of affidavit evidence on his behalf. If the power of attorney holder has rendered same acts in pursuance of the power of attorney, he can depose on behalf of principal in respect of such acts, but he cannot depose for the acts done by the principal and not by him. The power of attorney cannot depose on behalf of his principal in respect of matter, which are not within his personal knowledge. The power of attorney cannot be allowed to depose for her principal in respect of matter on which only principal can have personal knowledge and in respect of which the principal is required to be cross-examined.
Here it is specifically mentioned in the complaint that complainant went to the OP1 hospital on 18/12/2021 along with her father and minor child, for getting Pentavac PFS vaccination for the minor child. So it is clear that Pw1 the brother of complainant had no personal knowledge about the incident especially whether OP No.2 had administered vaccination to the child. In this view of the matter, we refused to read into evidence affidavit of Pw1 Mr. Vishnu C. The Hon’ble National Commission in Farmers Poultry Breeding Farm Vs. Punjab State power Corporation Ltd (II2011 CPJ 202 NC had held that power attorney’s evidence cannot be accepted, if he had no personal knowledge about the same.
Another plea raised by OP that there is no evidence to suggest that the vaccine was administered under the direction of OP No.2 or any other doctor. Without consulting a doctor at their OPD, no advice from a doctor could have been provided.
Complainant submitted Ext.A11 and Ext.A12 to establish the role of oPNO.2. On perusal of Ext.A11 it was issued on 20/12/2021 ie. on the 2nd day of giving vaccination. Ext.A12 is the baby’s health record. The explanation given by OP No.2 (Dw1) that Ext.12 was given to the complainant at the discharge time after delivery. Hence form the available evidence no document is before us to find out the involvement of OPNO.2 doctor about giving instruction to take pentavac vaccination to the child of complainant and also administered the said vaccination.
From the side of complainant Drug Inspector Dr. Sonia Krishnan was examined as Pw2. Pw2 deposed that she found expired pentavac vaccine in the pharmacy of OP No.1 hospital. Explanation of OP is that it was intended for replacement by the manufacturer/dealer that when medicine expires in a pharmacy, it is returned to the dealer or manufacturer for refund or replacement.
On analysis of her evidence it is revealed that “side effects ഉണ്ട്. എന്തൊക്കെ side effects ആണ്? പാക്കേജ് കവറിന്മേൽ വ്യക്തമാക്കിയിട്ടുണ്ട്. എനിക്ക് കൃത്യമായി പറയാൻ പറ്റില്ല. Expiry ആയ വാക്സിൻ നൽകി എന്ന് മനസ്സിലാക്കി കഴിഞ്ഞാൽ same doseൽ പിന്നെ വാക്സിൻ കൊടുക്കകയാണ് വേണ്ടത് എന്ന് പറഞ്ഞാൽ എനിക്കറിയില്ല. Antibodies നോക്കിയിട്ടാണ് എടുത്ത വാക്സിൻ ഫലപ്രദമാണോ അല്ലയോ എന്ന് തീരുമാനിക്കുന്നത്? ശരിയായിരിക്കാം.
From the evidence of Pw2 we cannot come to a conclusion that through Pw2, complainant could not prove her allegation about administering expired vaccine to the child by OP No.2 and side effect happened to the child in administering expired vaccine.
In Ext.A1, it is evident that penatvac vaccination given on 18/12/2021 and its expiry date was November 2021. But it does not show Ext.A1 was issued from OP1 hospital Moreover in medical negligence cases, the hospital or doctor be held liable if any damage caused to the victim from the negligence act of the medical practitioner. Here the leaned counsel of OP submitted articles on the subject of present case. I)If a dose of expired vaccine is inadvertently given, it should be repeated. If the expired dose is a live virus vaccine, you must wait at least 4 weeks after expired dose was given before repeating it. If the error is detected the same day a repeat dose can be administered that day. Ww.immunize.org/catg.d/p3033.pdf/. ii)If an expired or non viable vaccine is administered the dose generally should not counted as valid and should be repeated. Children’s hospital of Philadelphia [chop.edu/news/]. iii)An expired vaccine cannot itself hurt you. The vaccine just won’t work. Therefore the dose should be repeated. Website practo.com.
In this case, there is no evidence, of any after effect or complication happened to the child after taking vaccination of Pentavac. More over it is to be noted that on understanding the complainant after seeing Ext.A1 that expired medicine was administered on the child, she had not taken the child to OP hospital to take advise for further action.
OP No.2 was examined Dw1. He has given evidence in tune with his pleadings in the version.
From the article submitted, it is realized that though expired vaccine is given, it should be repeated. If the error is detected, on the same day a repeated dose can be administered. Here complainant does not have a case that she had given repeat dose to the child. More over no evidence of complication happened to the child.
So from the available evidence (oral or material) complainant failed to prove her case. Further there is no evidence that complainant had taken vaccination to her child from OP1 hospital. She could have examined any one of the nurses from the hospital. She did not even ready to enter into witness box for giving evidence to establish her case and allegation against OPs.
We are of the view that complainant failed to establish her case. Hence the complaint is dismissed. No order as to cost.
Exts.
A1- Certified copy of immunization record dated 24/10/2021
A2- Certified copy of Immunization record dated 24/10/2021
A3- Lawyer notice
A4- Reply notice
A5-Acknowledgment card (2 in numbers) dated 11/03/2022
A6-Acknowledgment card (2 in numbers) dated 14/03/2022
A7-Power of Attorney
A8-Certified copy of receipt of drugs or cosmetic
A9&A10- Certified copy of medical receipts dated 20/12/2021
A11- Certified copy of medical bill of Nila dated 13/12/2021
A12- Copy of complaint before Assistant drug controller by the complainant
A13- Certified copy of the statement by the complainant before the Drugs inspector Zone -2
A14- Copy of medical bill
A15- Copy of statement by Soradiya, the mother of Mazin.
A16- Copy of Statement by Omana K V, lab technician, Ashraya hospital
A17- Copy of statement by Suresh Kumar EK
A18-Certified copy of mahazer.
A19-Certified copy of complaint before JFMC, Mattannur
Pw1-Vishnu C- Complainant PA holder
PW2- Sonia Krishnan-Witness of complainant
Dw1-Dr. P Sudhir-OP2
Sd/ Sd/ Sd/
PRESIDENT MEMBER MEMBER
Ravi Susha Molykutty Mathew Sajeesh K.P
(mnp)
/Forwarded by order/
Assistant Registrar
