PER SHRI. S.S. PATIL - HON’BLE MEMBER :
1) This is the complaint of deficiency in service on the part of the Opposite Parties by neglecting the medical treatment of the Complainant.
2) The Complainant was undergoing the medical treatment of Opposite Parties for acne (pimples) from 30/06/2003. Complainant approached the Opposite Parties for the treatment of pimples on her face. The Opposite Party No.1 prescribed certain medicines to the Complainant. One of the medicines prescribed was Dapsone pills of 100 mg strength to be taken once every night for two months. The Complainant started taking the medicines including Dapsone from 04/07/2003 and continued for two weeks but after two weeks she started getting uneasiness and headache and therefore, she stopped taking the medicines prescribed by Opposite Party No.1 from 22/07/2003 and called the Opposite Parties eight times and complained regarding her ailment i.e. uneasiness & severe headache. However, there was no response from the Opposite Parties.
3) Lastly the Complainant got an appointment of Opposite Party No.2 who is the Assistant to Opposite Party No.1, on 25/07/03. By this time i.e. from 22/07/2003 to 25/07/2003 there were rashes all over her body in addition to the server headache and uneasiness.
4) Even after consultation on 25/07/03 with Opposite Party No.2, the rashes were multiplying very fast all over the body and her appearance also became ugly. It was very painful. She again got 2nd appointment with Opposite Party on 04/08/2003 with great difficulty. By that time her whole body was in an ugly appearance and shape, covered fully with rashes with acute pain. Opposite Party No.2 opined that the rashes might be due to use of excess gel and finally Opposite Party No.2 advised her to stop using the prescribed gel.
5) These rashes on the body of the Complainant were very server and painful and horrifying to the Complainant and her family, but there was no response from the Opposite Parties subsequent to the second appointment. Because of the server reaction due to the drugs prescribed by the Opposite Parties the Complainant went through a mental trauma and agony. Inspite of the continuous calls by the Complainant to Opposite Parties, there was no response from the Opposite Parties.
6) At last the family members of the Complainant got the Complainant admitted in Cumballa Hill Hospital, Mumbai on 09/08/03 at 9.00 a.m. where she underwent various pathological tests. The WBC count was upto 20,000. The specialist doctors had come to the conclusion that it was a case of Dapsone reaction, (which was prescribed by Opposite Party No.1 on 30/07/2003).
7) The Complainant further states that she underwent a physical & mental trauma and agony from 09/08/03 to 21/08/03 during this period her WBC count went upto 44,000.
8) Due to the above incident, the Complainant had to forgo her studies for Master’s degree. There was indefinite postponement of her proposal matrimonial engagement.
9) The Complainant further stated that her uncle wrote a letter dtd.21/08/03 to the Opposite Party in this respect (regarding negligence/deficiency in service, etc.). Thereafter she also issued a notice dtd.15/10/03 asking for a compensation.
10) The Complainant prayed for the reasonable compensation, for medical expenses incurred by the Complainant, compensation for mental trauma and agony, loss of her studies and matrimonial opportunities, etc.
11) The Complainant has attached the xerox copies of the following documents alongwith her complaint –
a) Prescription dtd.30/06/03 issued by Opposite Parties for the Complainant.
b) Different pathological reports from page no.12 to 47.
c) Letter from Jiten P Mody to Opposite Party No.1 dtd.21/08/03 alongwith some literature.
d) Notice of Adv.Charipalli– dtd.15/12/03 addressed to Opposite Party No.1.
e) Reply to the above notice by the Advocate of Opposite Party No.1
12) The complaint was admitted and notices were issued to the Opposite Parties. They appeared through their authorized representative and filed their written statements wherein Opposite Party No.1 has categorically denied the allegations in the complaint and alleged that it is an attempt to extort money from a reputed professional doctor. The matter of negligence alleged by the Complainant is a matter containing complicated issues of facts and issues and requires to be dealt with by the Civil Court.
13) Opposite Party No.1 further alleged that the Complainant had suppressed the fact that a specific medical history was taken with regarding allergies drug allergies and the Complainant had given the history that she was not allergic to any drugs or any substance.
14) All possible pressure tactics and threats of going to press were used by the family members of the Complainant in order to extort money from her.
15) It is further clarified by the Opposite Party No.1 that Opposite Party No.2 is her employee but independently treats patients without any interference form Opposite Party No.1. Opposite Party No.1 on the other hand neither controls nor interferes with the therapeutic line of treatment of Opposite Party No.2 and Opposite Party No.2 is independent of Opposite Party No.1.
16) The Opposite Party No.1 further explained different types of allergies and has given examples of certain allergies and reactions and further opined that the case of the Complainant was that of Acne Vulgaris. She further admitted that the Complainant visited her hospital on 30/06/2003 with Acne, Pimples head boils and white heads suffering from last two months. She was already using scalpe, L Orieal and Chandrika Soap. She had acnegenic oily skin. She was prescribed following treatment –
a) Dapsone 100 mg 1 at bed time – for 2 months.
b) Cyanomgcin 50 mg. 1 BD …… 6 weeks followed by 1 OD for 8 weeks.(after food).
c) Adaferein Gel on pimples at night.
d) Tab Teczine 1 at bed time for 1 weak alongwith vitamins & iron.
e) Zental to deworm.
17) On 25/07/03 the Complainant was seen by Opposite Party No.2. On 04/08/03 also the Complainant was also seen by Opposite Party No.1. The Opposite Party No.1 specifically stated that there are dermatologists available at the clinic daily who attend the patients for any skin reaction. The patient is told to stop all medications taken as anti allergic tablets and see the doctors immediately the Complainant could have just walked is on any day at any time and an M.D. doctor would have attended her immediately. The Opposite Party No.1 further clarified that Opposite Party No.2 has noted that the Complainant had already stopped all the medicines since 22/07/03 and there was no rash on 04/08/03 on the body of the Complainant. She further averred that the Complainant was attended whenever she came to the clinic and was given right advice. All medicines were stopped when the rash persisted. Anti histaminics like Teczine was continued. She further averred that there was no feed back, since 04/08/2003.
18) The Opposite Party No.1 further stated that here is no element of negligence or rashness because, the Complainant was suffering from Acne Vulgaris which was treated in a reasonable manner, the drugs used and doses prescribed were correct and all requisite care and caution was taken.
19) The Opposite Party No.1 further averred that, every treatment has its own risk factors. Inspite of taking all care and cautions, in some cases, inherent risk factors at times become apparent but it does not signify negligence or deficiency in service rendered by the doctors. The doctor can be held negligent only when the standards exhibited by him are below the standards laid down by peers /text books. In the instant case, the Complainant was not known to be allergic to any drugs and enquires to that effect were made. Inspite of all the above care and cautions the Complainant manifested with drug hypersensitivity of a very rare type (1 in 100000) and this cannot be construed as negligence and is not actionable. Opposite Party No.1 further asserts that drug hypersensitivity is one of the known risk factors and can take place in the best hands in the best centres, anywhere in the world inspite of all the care and cautions taken.
20) The Opposite Party No.1 further asserted that the reaction was not due to deficiency in service of the Opposite Party but it was unexpected drug allergy suffered by the Complainant. It was due to hypersensitivity which was inherent in the Complainant herself. The Complainant was born with such hypersensitivity. Lastly it is prayed that the complaint be dismissed with cost.
21) Opposite Party No.2 also filed her written statement wherein she stated that the Complainant has not paid any consideration to her. Therefore, the Complainant is not her consumer. She acted as a good Samaritan basically to help the Complainant. The Complainant has not made any allegation of negligence or deficiency in service against Opposite Party No.2. So the complaint be discharged and a compensation be paid to her (Opposite Party No.2). She also corroborated that the Complainant was a patient of Acne Vulgaris and was advised to take dapsone drug. It is a sulfonamides. Like any other drug dapsone has its side effects. Opposite Party No.2 first saw the Complainant on 25/07/03 when the Complainant came with the complaint of headache. At this time Opposite Party No.2 advised the Complainant to stop all the medicines immediately as cynarycin does cause headache. There was no rash on the body on 25/07/03. The Opposite Party No.2 saw the Complainant on 04/08/03 for second time. At this time she had rash on her face. This was diagnosed to be due to over application of Adaferin Gel. There was erythema and peeling of the skin. Opposite Party No.2 at this time advised Desowin Cream and Tab Teczine (an anti allergic drug) one daily for one week and called the Complainant for review after one week.
22) Opposite Party No.2 came to know that Complainant was admitted in Cumballa Hill Hospital. She informed this fact to Opposite Party No.1 who went to see the Complainant at Cumballa Hill Hospital. Further Opposite Party No.2 gave parawise explanation which corroborates the written statement of Opposite Party No.1.
23) Thereafter the Complainant filed his affidavit in evidence and written argument wherein she reiterated the facts mentioned in the complaint. The Opposite Party No.2 also filed her written argument and reiterated their contentions mentioned in their written statement and affidavits-in-evidence. The Opposite Parties also filed some rulings of Hon’ble Supreme Court and Hon’ble National Commission.
24) We heard the Ld.Representative of the Opposite Parties and perused all the above said documents and came to the conclusion as follows –
The Complainant was having pimples on the face. Therefore, she approached Opposite Party No.1 who prescribed her the following medicines on 30/06/03.
a)Tab Dapsone 1 of 100 mg strength at night.
b)Cap Cyanomycin 50 mg 1-01 for 6 wks ) After food 1-01 for 6 wks ) After food
c) Cap Vi-Bact – 1 daily – After breakfast for 3 months
d) Cap Softeron – 1 daily – After breakfast for 3 months
e) Cap Selace Forte - 1 daily- After breakfast for 3 months
f) Tab Teczine – 1 wk. After breakfast for 3 months
g) Tab – Zentel – single does at bet time. RPt every six months.
h) Scalpe Shampoo once a week.
i) Adaferin gel on Pimples at night.
j) Chandrika Soap
k) Karvol.
25) The Complainant started taking these medicines since 04/07/03 and continued for two weeks. At this point of time (15 days after 04/07/03) the Complainant started getting uneasiness and headache. So the Complainant stopped taking the medicines since 22/07/03. The Complainant has stated that after 22/07/03 when she stopped taking medicines, she called Opposite Parties eight times. However, she has not given actual dates and time as to when she called the Opposite Parties. She again stated that she got appointment of Opposite Party No.2 on 25/07/03. The Complainant also could not explain as to why she did not start taking the medicines on the very day i.e. 30/06/03 but actually she started the medicine on 04/07/03 after two weeks of starting medicines, she started feeling uneasiness and headache. Then she called the Opposite Parties but Opposite Parties did not respond. Anyhow she got the appointment of Opposite Party No.2. By 25/07/03, there were rashes spread all over the body. The Complainant as well as the Opposite Parties did not disclose as to what happened, on 25/07/03. Opposite Party No.1 & 2 have only stated that the Complainant approached on 25/07/03 and the Complainant had already stopped taking the prescribed medicine since 22/07/03. Therefore, there is nothing on record regarding the advice of Opposite Parties on 25/07/03. However, on 04/08/2003 when the Complainant approached Opposite Parties for 3rd time, Opposite Parties had prescribed Tab Teczene 1 daily for 1 wk. Desowen Cream on rash thrice a day x 1wk. Review after 1 week.
26) Thereafter it was the contention of the Complainant that she was admitted in Cumballa Hill Hospital on 09/08/03 for the above ailment and the Doctors from Cumballa Hill Hospital had come to conclusion that it was a case of Dopsone reaction. However, this contention of the Complainant is only in the air. There is no any document from the Cumballa Hill Hospital certifying that, it was a case of Dopsone reaction. We carefully went through and scrutinized the papers of Cumballa Hill Hospital, submitted by the Complainant herself. They are the pathological report only. There is nothing in the case papers of Cumballa Hill Hospital regarding the ailment. There is nothing on paper about any treatment taken in the said hospital. There is not a single document suggesting, for which disease, she was hospitalized. Therefore, the Complainant has miserably failed to show, for what disease she was admitted in Cumballa Hill Hospital and what treatment she received at that Hospital. Even the documents produced by her do not mention that she had been admitted in that Hospital. Only an inference can be drawn that the pathological tests were done in that Hospital.
27) There is no nay expert opinion in this regard to show that the treatment prescribed by the Opposite Party No.1 (as mentioned in para 24 above) was not correct or the doses of the drugs prescribed by the Opposite Parties were high and not standard one (The Complainant has not produced expert opinion that no standard protocol was followed by Opposite Parties or there was negligence on the part of Opposite Parties).
28) It was also alleged by the Complainant that after 2 wks from 04/07/03 she started uneasiness and headache so she called 8 times Opposite Parties but there was no response from them. Here also this is only a bare statement of the Complainant without any corroborating evidence. Therefore, the allegations of the Complainant are not substantiated by the Complainant by any documentary or any other cognate evidence. On the contrary the Opposite Parties have stated that whenever, the Complainant approached them, she was given standard treatment available in the world. Their clinic is having dermatologist available 24 hours and, the Complainant could have come at any time if she had suffered from any allergy after their consultation. At the same time Opposite Party had admitted that every treatment has its own risk factors. Inspite of all care and cautions, these inherent risk factors appear on surface in some cases, but it does not signify deficiency in service on the part of treating doctors. He can be held liable only when the standard exhibited by him is below prescribed standards. In the instant case, a medical history of the Complainant was taken wherein she was found non allergic to the drugs prescribed to her. The Opposite Parties clearly admits that, inspite of the proper care and cautions, the Complainant manifested with drug hypersensitivity of very rare type which cannot be confirmed as negligence. Opposite Party No.1 further admitted that the Complainant suffered unexpected drug allergy, which is the rare risk factor of type of treatment given to the Complainant but certainly it was not due to the negligence on the part of the Opposite Parties. It was due to the hypersensitivity to the drugs which was inherent in the Complainant herself, she suffered the allergic reaction.
29) Therefore, taking into consideration the above facts and circumstances of the case, though it appears that the Complainant suffered an allergic reaction to one or some of the drugs prescribed by the Opposite Parties, lack of the expert opinion on this subject and lack of documentary as well as other cognate evidence, the allegations of deficiency in service on the part of the Opposite Parties were not substantiated and hence, we do not find any merit in the allegations made by the Complainant. Hence, we pass the following -
O R D E R
i. Complaint No.55/2005 is hereby dismissed with no order as to cost.
ii.Certified copies of this order be furnished to the parties.
