1.      This Order shall decide both Revision Petitions Nos. RP/1482/2018 and RP/1717/2018 filed under Section 21(b) of the Consumer Protection Act, 1986 (the “Act”) arising out from the Order dated 09.03.2018 passed by the State Consumer Disputes Redressal Commission, West Bengal (the ‘State Commission’) in FA No. 642/2015. Allowing this appeal, the State Commission set aside the Order dated 28.04.2015 passed by the District Consumer Disputes Redressal Forum, Alipore ("District Forum") in CC No. 475 of 2014, while directing OP-1 and 2 to pay Rs. 5,00,000/- and Rs. 2,00,000/- respectively as compensation for mental agony and Rs.5,000/- each as litigation cost to the Complainant. Additionally, OP-2 was directed to refund to the Complainant Rs. 42,783/- received by him as cost of treatment. All amounts were directed to be paid along with interest @ of 9% per annum for the entire period of default.

2.      For convenience, the parties are referred to as placed in the original Complaint filed before the District Forum. The Dr DK Samanta is referred as OP-1 and the Petitioner Modak Medical Hall and Dr. D.K. Samanta are referred to as OP-1 and OP-2 respectively. While the Respondent, Smt. Barna Saha is denoted as Complainant.

3.      Brief facts of the case are that the Complainant took her 13 years old son to OP-1 on 28.6.2014 for treatment of high fever and cough, paying Rs. 500/- without receiving a receipt. OP-1 prescribed medicines without noting clinical symptoms/provisional diagnosis. From 28.06.2014 to 04.07.2014 her son's condition worsened with more symptoms such as skin eruptions on foot sole, palm, and genital area, as well as reddish eyeballs and lips. On 05.07.2014, OP-1 diagnosed the child as the case of chickenpox, without recording symptoms or calling for any laboratory tests. She contended that, upon administration of medicine, the condition of her son deteriorated further. She then took her son to another doctor who diagnosed him with Steven Johnson Syndrome and advised immediate hospitalization. She admitted her son to BP Poddar Hospital from 07.07.2014 to 16.07.2014, incurring Rs.42,783/- as expenses. OP-1 was negligent and failed to apply proper skill. The prescriptions dated 28.06.2014 and 05.07.2014 lacked proper clinical notes, leading to a misdiagnosis. Hence, alleging deficiency in service and negligence.

 4.     In reply, before the learned District Forum, OP-1 refuted all substantial allegations and asserted that complainant case was bad for mis-joinder and non-joinder of necessary parties and she failed to place on record any document to show the payment of any amount to the Nursing Home or to the physician. Therefore, she could not be regarded as consumer. Omitting to mention clinical observations like blood pressure or pulse rate on the prescription dated 28.6.2014 did not mean that the other organs of the patient were not checked. It was strongly stated that there is no evidence of any negligence on the part of OP-1, and since the complainant failed to discharge her primary burden of proof, the complaint should be dismissed. On the first day of examination no mention of any pre-existing allergies of the patient were informed by the complainant. Moreover, the medicines prescribed were for a limited period, that too subject to fever or cough as the case maybe/ however, the patient consumed the medicine for longer duration than prescribed, amounting to ‘self-medication’ and OP-1 cannot be made responsible for it. OP-2 also denied all the allegations levelled against him. He contended that they always maintained a habit of issuing cash memo for any kind of medicine sold. Thus, he was not bound to suffer any penal consequence due to gross negligence of the complainant.

5.      The learned District Forum vide Order dated 28.04.2015, dismissed the complaint with the following finding:

“The complainant did not pay any fees to the O.P-1 (the receipt did not submit) and not filed any documents that the medicines were purchased from O.P-2. Apart from that in vies of reported decision of Hon'ble National Commission in 2013(1) CPR Page 345 medical misdiagnosis does not amount to medical negligence. No evidence is there that reasonable degree of skill and care was not taken by doctor at the time of treating the ailing son of the complainant.

After discussing the above we did not find any deficiency or

negligence on the part of the O.Ps .

As a result, the case of the complainant fails.

Hence,

Ordered

That the case being C.C.no. 475 of 2014 be and the same is dismissed without cost.”

6.      Being aggrieved by the District Forum Order, the Complainant filed Appeal No. 642/2015 and the State Commission vide Order dated 09.03.2018 allowed the Appeal and set aside the Order passed by the District Forum, with the following observations: -

“The foregoing facts and evidence on records clearly indicate that the three essential components of medical negligence, i.e. 'duty', 'breach' and 'resultant damage', as observed by the Hon'ble Supreme Court in Jacob Mathew Vs. State of Punjab & Anr. (supra) are present in the case on hand.

Another decision of the Hon'ble Supreme Court in Achutrao Haribhau Khodwa Vs. State of Maharashtra & Anr., reported in 1998 SCC (2) 634, is also relevant wherein it was held that in the cases when the doctors act carelessly and in the manner not expected of a medical practitioner, then in such cases the action in tort would be maintainable, as in the case on hand.

The Respondent No. 2-Medical Hall is also vicariously liable for its failure to ensure proper and reasonable care and treatment by the doctor concerned who is engaged with it for providing reasonable and careful medical service to the patient concerned as was held by the Hon'ble Supreme Court in Smt. Savita Garg Vs National Heart Institute reported in 2014(4)258 (SC).

Consequently, the instant Appeal deserves to be allowed and is allowed accordingly. The impugned order is set aside and Complaint Case is restored.”

7.      Dissatisfied by the Order of the State Commission, both the OPs filed the present Revision Petitions before this Commission seeking:

RP/1482/2018– filed by the OP. No. 2- Modak Medical Hall

“It is therefore most humbly prayed that this Hon'ble Commission may be pleased to admit this Revision Petition and set aside the order dated 09/03/2018 passed by the Ld. State Consumer Disputes Redressal Commission, West Bengal, Kolkata, passed in First Appeal No. A/642/2015.

Award cost of this petition to the petitioner and against the respondents.

And may pass any further order or direction as may deem fit and proper in the circumstances of the Instant case.”

RP/1717/2018– filed by the OP no. 1- Dr. D. K. Samanta

(a) To admit the revision and pass necessary orders.

(b) The order dated 9/3/2018 passed in A/642/2015 (Barna Saha vs. Dr. D. K. Samanta & Another) by the Hon'ble State Consumer Disputes Redressal Commission, West Bengal be set aside and the complaint be dismissed alternatively the Hon'ble State Commission be directed to rehear the appeal after taking expert opinion.

(c) Such further or other order be passed as this Hon'ble National Commission may deem fit and proper.”

8.    The learned Counsel for OP-2 reiterated the arguments previously presented before both lower forums. He vehemently argued that OP-2 was a mere medical shop and could not be held liable for the alleged negligence of OP-1, the treating doctor, as there was no professional relationship between them. He emphasized that it only sold the medicine prescribed by OP-1 and did not provide any medical treatment or care. The only allegation against OP-2 was the failure to issue a cash memo for medicine sold, which the complainant failed to prove. The State Commission erred in the application of the principle of vicarious liability and awarded compensation against OP-2. OP-2 pointed that the doctor’s chamber was located in adjacent slot, two shops away from the medical shop, further emphasizing absence of any professional connection or collaboration between them. OP-2 maintained that there was neither any medical negligence, deficiency of service, nor unfair trade practice on its part, and thus, it should not be held liable for alleged negligence of OP-1.

9.      In his arguments, the learned Counsel for OP-1 denied any negligence or deficiency at his part. He emphasized that, according to the MCI guidelines for the model prescription circulated among doctors in Batanagar, recording clinical observations in the prescription was not mandatory. Therefore, his prescription complied with the MCI format. He asserted that the complainant had brought the patient to OP-1 with symptoms such as fever, headache, body ache, appetite loss, weakness, skin rash with papules, vesicles, blisters distributed over the entire body, including the throat, eyes, genitals and lips. These were clear clinical symptoms of chickenpox. Based on these visible symptoms, OP-1 had prescribed appropriate medication. According to Harrison's Principles of Internal Medicine, chickenpox was to be diagnosed clinically. He further argued that the Ld. State Commission erred in holding that leukopenia was a confirmatory test for chickenpox, and submitted medical literature to support his claim. He pointed out that the discharge summary from BP Poddar Hospital mentioned the patient's past history of allergies to paracetamol, ibuprofen and sodium valproate, and argued that none of these were disclosed to OP-1 during the initial examination. As per WHO Model List of Essential Medicines for Children, drugs like paracetamol, ibuprofen and acyclovir, which OP-1 prescribed, were considered among the safest core drugs and did not require allergy testing prior to administration. She did not provide any proof of medicine purchase, making it impossible to determine whether these were actually taken as prescribed or not. He placed reliance on the following judgments:

1.  Vinod Jain vs Santokba Durlabhji Memorial Hospital, MANU/SC/ 0267/2019 (25.02.2019)
2.  N.C.S. Reddy vs Dr D.T.Reddy, FA/358/2008, NCDRC
3. Dr Miss Herat Parmar vs Dr Venila V Panchal & 4 others, FA/184/2015, NCDRC (12.01.2017)
4. Dr. Laxman Balakrishna Joshi vs. Dr. Trimbak Bapu Godbole & Anr, AlR 1969 SC 128 (02.05.1968)
5.  A.S. Mittal vs. State of U.P., AIR 1989 SC 1570 (12.05.1989)

10.    The learned counsel for the Complainant argued that this Commission’s power of revision could only be invoked where there was an issue of irregular or illegal exercise of jurisdiction by the court or tribunal below. The OPs have not been able to point out any instance of such irregular or illegal exercise of jurisdiction by the State Commission. There was an evident breach of standard care in omitting to note any symptoms, height and weight of the patient, as such prescribing paracetamol of a certain dosage without noting the weight of the child would amount to a breach of standard protocol. Neither the prescription dated 28.06.2014 nor the prescription dated 05.07.2014 given by the OP 1 had any mention of drug allergy. The State Commission had concluded the mandatory nature of a test of leukopenia after relying upon medical literature like Current Consult Medicine by Maxine A. Papadakis and Stephen J. McPhee. He relied upon the judgment of St. Stephen’s Hospital, through its Medical Superintendent, Tis Hazari v. Smt. Roshani Devi & Ors., 2013 (3) CPR 367 (NC) contending that doctor or hospital must conduct required diagnostic tests before starting treatment. He further relied upon Kalpana v. Dr. K. Ramalakshmi & Anr., 2015 (1) CPR 314 (NC), Shilaben Ashwin Kumar Rana vs Dr. Bhavin K. Shah & Anr., 2014 (2) CPR 816 (NC and V. Kishan Rao v. Nikhil Super Speciality Hospital & Anr., 2010 (3) CPR 101 (SC). Appreciating the findings of the State Commission, he asserted that the conclusions therein had been reached after proper appreciation of evidences. The OPs acted negligently and in defiance of the well-accepted medical norms. He prayed to uphold the impugned Order dated 09.03.2018 passed by the State Commission and dismiss the Revision Petition.

11.    Heard the Learned Counsel for both the parties. Perused the entire material on record inter-alia Orders of both the fora.

12.    One of the primary issues before us is whether there was any medical negligence on the part of OP-1, the doctor in prescribing wrong medicines to the complainant’s son which further led to allergies and deterioration in his condition. Undisputedly, the initial examination of the complaint revealed symptoms of similar to that of chickenpox for which medication was prescribed by OP-1. Perusal of the literature placed on record reveals that the medication suggested was as per the general and acceptable standards of treatment in case of chickenpox. Occurrence of chickenpox is common amongst young children and it is an accepted practice and often the same is diagnosed by clinical examination alone. The reasoning of the complainant that the child was allergic to tablet paracetamol as per the Discharge Summary of B.P. Poddar Hospital and since the same was not taken into consideration by OP-1 was negligent holds no merit. A doctor cannot be expected to presume the allergies of a patient, especially for such regular medicine. If there was any pre-existing allergy to any medicine the same should have been disclosed by the complainant which she did not. Assuming a situation where in both the patient and the doctor were unaware of a pre-existing allergy, the doctor cannot be made liable for prescribing medications of common use and within permissible limits. Evidently, the complainant failed to inform OP-1 or, may be, she herself was unaware. In any case, she failed to prove that OP-1 was already aware of the allergy of the patient and yet negligently prescribed the same medicine, which led to further allergies. The fact that the medication may have led to occurrence of the Steven Johnson Syndrome also holds no merit. To establish case of medical negligence, the complainant not only needs to prove that there was a duty of care and negligence resulting in damages but it also his onus to prove that there was a direct nexus between the said negligence and the consequent harm caused. Mere making allegations of harm is not sufficient. The case before us is at best a case of misdiagnosis which cannot be covered under the ambit of negligence. From the evidence placed on record and the medical literature presented before us, evidently there was no breach of duty on part of OP-1. At this point we would like refer to Chanda Rani Akhouri v. M.A. Methusethupathi, 2022 SCC OnLine SC 481, decided on 20.04.2022, wherein the Hon’ble Supreme Court observed that:

“27. It clearly emerges from the exposition of law that a medical practitioner is 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 to another. In the practice of medicine, there could be varying approaches of treatment. There could be a genuine difference of opinion. However, while adopting a course of treatment, the duty cast upon the medical practitioner is that he must ensure that the medical protocol being followed by him is to the best of his skill and with competence at his command. At the given time, medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.”

13.    Furthermore, in Achutrao Haribhau Khodwa v. State of Maharashtra (1996) 2 SCC 634, decided on 20.02.1996, the Hon’ble Supreme Court observed as:

“The skill of medical practitioners differs from doctor to doctor. The very nature of the profession is such that there may be more than one course of treatment which may be advisable for treating a patient. Courts would indeed be slow in attributing negligence on the part of a doctor if he has performed his duties to the best of his ability and with due care and caution. Medical opinion may differ with regard to the course of action to be taken by a doctor treating a patient, but as long as a doctor acts in a manner which is acceptable to the medical profession, and the Court finds that he has attended on the patient with due care skill and diligence and if the patient still does not survive or suffers a permanent ailment, it would be difficult to hold the doctor to be guilty of negligence.”

14.    The second issue before us is whether a pharmacy, in this case, Modak Medical Hall (OP-2) can be made vicariously liable for the alleged negligent act of the Doctor. At the outset, as discussed above, we do not find OP-1 to be negligent in his treatment. For the sake of argument, even if it is assumed that OP-1 issued a wrong prescription, his liability cannot be attributed upon OP-2. In our view, while deciding upon this issue the Ld. State Commission did not consider the nature of negligence on part of OP-2. It is a settled position of law that if the pharmacy gives wrong or expired medicines than that prescribed by the doctor, it can be held liable for negligence. But in the present case, the medicines provided by OP-2 are the same as prescribed by OP-1. It is not disputed by the complainant that the medicines provided by OP-2 were wrong or dubious. OP-2 is neither a doctor nor has the requisite expertise required diagnosing or treating a particular medical condition. His role and responsibility are limited to provide the correct medicines as per what is given in the prescription by the treating doctor. The Ld. State Commission while dealing with this issue held OP-2 to be liable relying on the case of Smt. Savita Garg Vs. National Heart Institute, 2014 (4) 258 (SC). However, a close reading of the case would reveal that the said case had been misinterpreted as the question to be decided in the said case and the present case are completely different. In the former case, the Court while addressing the difference between a ‘contract of service’ and a ‘contract for service’ determined that the hospital was liable for the actions of both their permanent staff and any temporary staff brought in for treatment of the patient. Thus, the Court held that a hospital or institute was responsible for the conduct of its treating doctors, whether they were on the hospital’s permanent panel or temporarily requisitioned based on the nature of the disease. There was no distinction to be drawn between these two categories of personnel, which are the treating doctors and the temporarily hired doctors and nursing staff. In the present case, as discussed above, the job of the pharmacy was to only provide medicines prescribed by a doctor. Holding a pharmacy responsible for being negligent in service in the present case would conclude same level of expertise and accountability to doctors and pharmacists, which is entirely desirable. Therefore, imputing the same extent of liability on a pharmacy as that of a doctor, when correct medicines as per prescription have in fact been dispensed, would be unjust and against the principles of equity and unreasonable.

15.    Based on the discussion above, we find the order of the learned State Commission unsustainable. Consequently, the impugned Order passed by the learned State Commission in F.A. No. 642 of 2015 dated 09.03.2018 is set aside and the Order of the District Forum in C.C. No. 475 of 2014 dated 28.04.2015 is upheld. Both Revision Petitions No. 1482 and 1717 of 2018 are allowed.

16.    Keeping in view the facts and circumstances of the present case, there shall be no order as to costs.

17.    All pending Applications, if any, also stand disposed of accordingly.