O R D E R

SMT. G. VASANTHAKUMARI, PRESIDENT.

This complaint has been filed by the complainant alleging medical negligence on the part of the opp.party.

          The complainant’s case is that, the first complainant is the wife, 4^th and 5^th complainants are the parents and 2^nd  and 3^rd  complainants are the children of  deceased Babu @ Nazarudheen,  that he was working as Manager of Book Mark show room at YMCA, Kollam drawing a monthly salary of Rs.5,000/-, that on 29..8..2006 at 9 a.m.  deceased Babu felt body pain  and fever and he along with his father 4^th complainant met the opp.party doctor at about 9.30 a.m. and the opp.party doctor examined him and prescribed some medicines on the diagnosis of viral fever and advised him to  come back if he feels any vomiting, that on the same day at about 7 p.m. patient again reported with the complaint of vomiting and the opp.party doctor administered an injection and directed the patient to take rest for 3 days,  that 4^th complainant request  as to whether  any lab test is necessary not considered by the opp.party1, that on 1..9..2006 again  the patient approached the opp.party since there was no improvement in  his condition and again opp.party prescribed some medicines and sent them back, that on 2.9.2006 since there was no progress in the condition of the patient he was again taken to opp.party and opp.party suggested to go and take rests but any how the patient was taken to Sanker’s Hospital, Kollam and   from there on the same day he was taken to Kims Hospital, Thiruvananthapuram, that on detailed examination it was diagnosed, that the patient sustained viral fever with secondary   bacterial infection, ARDS and treatment  was started  for the same, but on 4..9..2006 at about 5.30 a.m. he expired, that   the death was due  to sepsis syndrome with multi organ failure , that the opp.party doctor  did not diagnosis the actual ailment of the patient and there is wrong diagnosis  of viral fever  and hence wrong treatment was given and there is deficiency in service and therefore the opp.party doctor is guilty of negligence   and the complainants are entitled to get compensation to the tune of Rs.10,00,000/-

Opp.party entered appearance and filed  version contenting that the complaint is not maintainable either in law or on facts,   that there is no negligence or deficiency in service as alleged by the complainants, that on 29..8..2006 at about 9.30 a.m.  the patient approached the opp.party doctor with  the complaints of fever and body pain,  that he was examined by the opp.party, that on clinical examination he was found to have fever only, that he disclosed that he is taking treatment from another physician for Hypertension  and hypercholesterolemia, that since there were no other clinical  symptoms or findings and the patient was having only fever, patient was given with Paracetamol, Stemitil and  Chlorpheneramine , which are usually given for fever cases, that however the patient was   advised to have complete bed rest, that on the same day evening at 7 p.m., while the opp.party was closing the clinic, the patient himself came again and informed that he had vomited twice and immediately the opp.party directed the patient and the accompanying person to take him to a hospital having inpatient  facility and other infrastructure, that they promised to go to another hospital, but insisted this opp.party to give some medicine to stop vomiting for the time being and  the  opp.party administered antiemtic injection to stop the vomiting, that on 1..9..2006 the patient again came to the opp.party’s clinic and informed that his fever had receded and his vomiting had stopped and complained of mild body pain only, that on   examination he was found to be normal and since there was improvement in the condition of the patient he requested the opp.party to gave some medicine only for body pain and accordingly   the opp.party gave some medicine  for body pain and  vitamin tablets and advised bed rest, but to the surprise of this opp.party, he came on the next day with complaints of severe tiredness and the first appearance of the patient itself warranted this opp.party to immediately take him to a major hospital for further investigation and treatment and directed him to go to Sankers Institute of Medical Science, Kollam.., that now it is learnt that the patient was taken to Samker’s Institute of Medical Science,  from where he was referred to Kims Hospital, Thiruvananthapuram on the same day evening and subsequently he died due to viral fever with secondary bacterial infection and ARDA [Acute Respiratory Distress Syndrome], that  it is a clinical syndrome of rapid onset characterized  by severe dyspnoea [Breathlessness]  hypoxemia [decreased oxygen level in blood] usually  leading to respiratory failure, that it is secondary to several reasons one of them being viral infection later developing Pneumonia ,  that ARDS has high mortality  rate, that it clearly indicates that primarily he had viral fever and bacterial infection and ARDS developed subsequently and so when the patient came on 29..8..2006 , he had only viral fever and on 1..9..2006 he was better and subsequently bacterial infection developed and this opp.party is no way responsible for this secondary bacterial infection and there is no negligence or deficiency in service in the matter of diagnosis or management of the patient and prayed to dismiss the complaint.

Points that would arise for consideration are:

1.                           Whether there is any medical negligence on the part of the opp.party doctor?

2.                           Reliefs and cost.

For the complainant PW.1 and 2 were examined and marked Exts.P1 to P12 and for the opp.party DW.1 was examined.

THE POINTS:

In this case the first complainant was examined as PW.1, Dr. Mathew Thomas of KIMS Hospital, Thiruvananthapuram was examined as PW.2.  Ext. P1 is diagnosis prescription dated  29..8..2006 bearing No.A71870 in the name of deceased from Dr.Thanky Memorital Clinic, Ext.P2 is discharge bill,   dated 2..9..2006 from Sims Hospital in the name of deceased, Ext.P3 is  receipt dated 2..9..2006  which shows payment against discharge bill Ext.P2  Ext.P4 is pharmacy bill from Sims hospital dated 2.9.06 in the name of deceased, Ext.P5 is certificate dated 8..11..2007 issued from Sims hospital to show that at 7.30 p.m. on 2..9..2006 the patient was referred to higher centre  for further evaluation and expert  management,  Ext.P6 is laboratory investigation results dated 4..9..2006  from Kims hospital, Thiruvananthapuram, Ext.P7 also is laboratory results dated 7.9..06 from Kims hospital Thiruvananthapuram, Ext.P8 also is lab report dated 6.9..2006 from Kims Hospital Thiruvananthapuram, Ext.P9 series also is lab report from Kims Hospital, Thiruvananthapuram, Ext.P10 is bill details from Kims hospital, Thiruvananthapuram, Ext.P11 is death certificate issued from Kims hospital, Thiruvananthapuram, which shows that the cause of death is “sepsis syndrome with multi organ failure”, disease is shown as “viral fever with secondary bacterial infection ARDS” , Ext.P12 is lab report from Sims Hospital.   Ext. X1 series is treatment records from Kims hospital Thiruvananthapuram.  Opp.party doctor himself was examined as DW.1.

            It is the admitted case of the complainant’s that when the patient had the feeling of fever he along with his father, 4^th complainant met the opp.party on 29..8..2006 at 9.30 am   The opp.party  doctor examined and given medicines on the provisional diagnosis of viral fever, no lab  tests conducted.   At about 7 p.m. on the same day he met the opp.party doctor with the complaint of  vomiting and opp.party administered an injection and directed the patient to take rest for 3 days.  According to the complainant’s  during the second visit 4^th complainant requested the opp.party for some lab tests, but opp.party repudiated the same.  But according to the opp.party at this time the opp.party insisted the patient to go to any other hospital and to  undergo any  other tests and further medication.  But for the  above allegation and counter allegation there is no evidence apart from the interested   testimony of PW.1 and DW.1.  It is in evidence that the opp.party institution is only a small clinic where there is no inpatient facilities or lab facilities.  Opp.party as DW.1 would swear before the Forum that    Sn Øm]-\ Hcp  hospital  Aà   dispensary BWv.  InS¯n NnIn-Õn-¡m³ \uI-c-y-§Ä  CÃ

Admittedly the patient was working nearby the clinic of the opp.party in Kollam town.  So admittedly knowing  the limited facilities in opp.parties clinic the patient came there.   1^st complainant as PW.1 would swear before the forum that opp.party  tU.-IvSsd kao-]n-¡p-¶-Xn-\p ap¼v Dr. A\nÂIp-am-dnsâ NnIn-Õ-bn-em-bn-cp¶p  _n.-]n.-bv¡pT sImf-kvt{Sm-fn-\p-am-bn-cp¶p NnI#nÕ.  Bb-Xn-\p-ff acp¶v Dt±iT H¶-c-am-k-ambn Ign-¡p-¶p-­m-bn-cp-¶p.v

It follows that when the patient felt body pain without consulting Dr. Anilkumar he met the opp.party doctor feeling that he has only fever.  DW.1 would swear before the forum that on 29..8..2006 patient was given with ultragin,  stemitil and chlorpheneraminemelleate  which are usually given for fever cases. Ext.P1 also indicates the same .  DW.1 further deposed that on 29..8..2006 evening at 7 p.m. again the patient approached him and informed that he had vomited twice and he has administered perinorm injection and advised the patient to go to a hospital having inpatient facility.  But as we have already stated there is no evidence apart from the interested testimony of DW.1 that he advised the patient  to go to a hospital having inpatient facility and the patient along with 4^th complainant promised to go to another hospital.

          Further according to DW.1, on 1.9.2006, the patient came and complained of only body pain and accordingly he has given some medicines for body pain and vitamin tablets and advised to take rest.  But again he came with the complainant  on tiredness and the opp.party advised to him to go to SIMS.  But according to the complainants opp.party doctor has not referred the patient to SIMS.   Any way there is no evidence to show that opp.party doctor referred the patient to SIMS but he was taken to SIMS and from there he was referred to Kims on the same day evening.   DW.1 would swear before the Forum that {]tX-y-In¨v casesheetCÃm-¯-Xn-\m  reference letter sImSp-¯nà Ext.P5 shows that the patient wasreferred to a higher centre for further evaluation   and expert management from SIMS.  DW.1 would swear before the Forum that am{X-a-Ã-aq-¶m-as¯ {]mh-i-yT  viral fever   Bbn Rm³ diagnosis   \S-¯nb Hcp   case  {]tX-y-In¨v Hcp  investigation  sIm­v H¶pT I­p-]n-Sn¡p-hm³ Cà F¶p tXm¶n.

For not issuing reference  letter DW.1 explained that F³s#d tlmkn-]n-ä-dn     patient s\ admit    sN¿p-Itbm  Investigation   \S-¯p-Itbm sNbvXn-«nà AXp sIm­p#v written reference  sImSp-¯n-Ã.

It is in evidence that on 29..8..2006, the patient had only viral fever and on 1..9..2006 he was feeling better .  It is argued by the learned counsel appearing for the opp.party that it is subsequently that he developed  bacterial infection which is a complication of viral fever and which cannot be prevented by any medical treatment and it has about 40 to 50 %  mortality.

In this case it is pertinent to note that even though DW.1 doctor was examined at lengthy nothing was brought out in his cross examination to discredit the witness.  He has no reason to  detain the patient in his clinic since he was not having any IP facility too in his clinic .  He made diagnosis of viral fever  and given medicines and  the diagnosis was made on the basis of the presenting symptoms of the patient.  The patient came to the  opp.party not for one time but for  4 times.  That  shows the patient and his relatives were having absolute  confidence with the opp.party doctor.  If the  opp.party doctor was not co-operating with the patient for not accepting their demand to detailed investigation, definitely  such a patient will not go to the same  doctor.  If the patient  and the relatives were not satisfied with the quality of  treatment  of the opp.party doctor they would not have take  the very same   patient to  the very same doctor for the consecutive  3 times The settled law on  the subject of  medical negligence requires that to hold a medical practitioner guilty of professional negligence, the standards of an ordinary practitioner of that discipline will have to be  applied, not those of   the highest order of skills and expertise nor of the  lowest.  More over the allegations will have to be established on the basis of medical record and  as far as feasible expert opinion or medial literature on standard practices and procedures.[2012 [1] CPR 217 {NC} ] Hence  the evidence of independent experts regarding this treatment is of paramount importance.  In this case the complainants have examined Dr. Mathew Thomas, the consultant physician of the Kims Hospital, Thiruvananthapuram as PW.2.  He  is the Head of the Department of Internal Medicines  of   KIMS Hospital, Thiruvananthapuram.  He is  a retired professor  from medical college hospital with  32 years  of professional experience  He is not only  an expert witness but treated   the patient  in this case also  Admittedly death was taken place after starting treatment at the KIMS Hospital.  He has produced the case sheet of the patient which is marked as Ext. X1 series.  According to him the cause of death of the patient is “SEPSIS SYNDROMEWITH MULTI ORGAN FAILURE” and the disease diagnosed as “Viral fever with secondary bacterial infection”  The cause directly lead to death or due to or as consequence of ARDS .  The allegation of the complainants is that the opp.party doctor  has not or failed to diagnose this disease condition of the patient  PW.2 expert witness defined this   Sepsis syndrome as follows: Hcp tcmKn-bpsS ico-c-¯n kq£-am-Wp-¡Ä {]tX-y-In¨v _mIvSo-cnb Ib-dp-I-bpw ico-c-¯nsâ ]e Ah-b-h-§Ä¡v tISp ]äp-I-bpw sN¿p¶ Ah-Ø-bmWv  Sepsis syndrome.   Further he would swear before the Forum that  sepsis syndrome tcmK-¯n 30%..40% hsc am{Xta tcmKm-Wp-hnsâ hni-Z-hn-h-c-§Ä em_v sSÌv aqew I­p-]n-Sn-¡m³ Ignbp .  Again he would swear before the
Forum that kq£m-Wp-¡Ä ico-c-¯n {]th-in-¨Xv  F{X  Znh-kw ap¼mWv ?  ]\n  XpS-§nb Ah-k-cw apX Bbn-cn¡m³ km²-y-X-bp-­v.  ]\n XpS-§n- Ip-d¨p Znh-k-§Ä Ignªv      bacterial infection.Bbn cq]m-´-c-s¸-Smw  Further he would swear before the Forum that]\n XpS-§nb Ah-k-c-¯n hni-Z-amb ]cn-tim-[\ \S-¯n-bn-cp-s¶-¦nn tcmKnsb ac-W-¯n \n¶p c£n-¡m³ Ign-bp-am-bn-cp-¶pthm ?  Fsâ 30 hÀjs¯ ]cn-N-b-¯n AXnsâ

 km²-yX Ipd-hmWv F¶v F\n¡v tXm¶p-¶p. .   Further he would swear before the Forum that ]\n-bpsS  IqsS thsd tcmK-e-£-W-§Ä Ds­-¦n  Nne-t¸mÄ ]cn-tim-[-\-IÄ sNbvtX-¡p-#w.  AXv      vomiting t]mse  Fs´-¦n-epT BIm³ km²y-X-bpt­m ? OÀ±n hfsc km[m-c-W-amb Hcp tcmK-e-£-W-am-bXp sIm­v C¡q-«-¯nÂs¸-Sp-r¶n-Ã. He would further swear before the forum that P1 sIm­p    OP viral fever\p#v-sIm-Sp-t¡-­p¶ ^Ìv {Soävsaâv sImSp-¯-Xmbn ImWp-¶p.   sshdÂ^ohÀ BWv F¶v tUmIvSÀ¡v t_m²-y-ap-s­-¦n Bân-_-tbm-«n¡v sImSp-t¡-­p¶ Bh-i-y-an-Ã.  BZ-ys¯ 5.-7 days   sshd ^ohÀ Hcp   secondary bacterial infection Bbn    development  sN¿#p-hm³km-²-y-X-bp-­p#v.  B Hcp km²-y-X-sb-¸än ^Ìv tÌPn Fs´-¦n-epT  investigations \S-¯n-bmep I­p-]n-Sn-¡p-hm³ {]bm-k-amWv    Again he would swear before the Forum thatshd ^ohÀ BWv F¶ tF-sd-¡psd XoÀ¨-bp-sW-¦n      negligence BsW¶v ]d-bp-hm³ km²-y-a-Ã.

The above evidence of the expert witness would conclude that there is no evidence of negligence on the part of the opp.party doctor.  Here the patient who was suffering from  fever was treated by doctor but died after 6 days because of the Sepsis syndrome with Multy organ failure.  The doctor cannot be held negligent or deficiency in service   in the absence of  any evidence that the treatment given by him was erroneous.

          Our Apex court in 2010 NCJ 449 [SC] held that a medical professional would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field` One professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctors.  Here there is no difference of opinion or conclusion between DW.1 and PW.2 .  Here the expert evidence of PW.2 itself shows that if 100 doctors examined a patient of this type, 95% of the doctors at the first stage will diagnose it as  viral fever.  That is  what is done by opp.party doctor also

Following the above discussion we have no hesitation to safely conclude that there is no deficiency in service on the part of the opp.party doctor, and the complaint is only to be dismissed, but without costs.

In the result the consumer case is dismissed.  In the circumstances there is no order as to cost..

          Dated this the 10^th      day of May 2012

List of witnesses for the complainant

PW.1. -  Suma Babu

PW.2. – Dr. Mathew Thomas

List of documents for the complainant

P1. – Diagnosis prescription

P2. – Discharge bill dated 2..9..2006

P3. – Receipt dated 2..9..2006

P4. – Pharmacy bill from SIMS dt. 2.9.2006

P5. – Certificate dated 8..1..2007

P6. – Laboratory Investigation results  from KIMSdated 3..9..2006

P7. -  Lab report from KIMS

P8. -  Lab report  from Kims dated  6..9..2006

P9. – series Lab report from Kims

P10. – Bill details from Kims

P11. – Death certificate

P12. – Lab report from SIMS

X1.- series  - Treatment records from KIMS

List of witnesses for the opp.party

DW.1. – Koshy George