Date of Filing: 24.12.2014
Date of Order: 28.08.2018
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM – I, HYDERABAD
P r e s e n t
HON’BLE Sri P.Vijender, B.Sc. L.L.B. PRESIDENT.
HON’BLE Smt. Kasturi, B. Com., LLM., MEMBER.
Tuesday, the 28th day of August, 2018
C.C. No. 30 /2015
Between
SYED ANWAR,
H.No.16/09/409/P/74/1/8,
Wahed Nagar, Old Malakpet,
Hyderabad – 500036. ……COMPLAINANT
And
Dr. Nitin Chandra Mathur,
H.No.5-9-194/3, Chirag Ali Lane,
Opposite to Charmas, Abids,
Hyderabad – 500001.
Shop No.5, New Moti Market, Esamia Bazar,
Hyderabad – 500027. …..OPPOSITE PARTY
Counsel for the complainant : Party in Person
Counsel for the Opposite Party : M/s. INDUS LAW FIRM & ASSOCIATES
O R D E R
(By Hon’ble Sri P. Vijender, B.Sc., LL.B., President on behalf of the bench)
This complaint is filed under section 12 of C.P. Act of 1986 seeking a compensation of Rs.10,00,000/- against the Opposite Party who has a medical officer by his carelessness wrongly diagnosed the ailment for the Patient’s son viz., Syed Muneeb Ahamed.
- The complainant’s case in brief is that: he has been visiting the Opposite Party Medical Officer as a Children Specialist for his child health related problems. His son Syed Muneeb Ahmed had a high fever due to pneumonia and it was not controlled by regular medication. On 21.12.2013 he consulted the Opposite Party at 11-22 and after examination told that, there was no serious problem and prescribed some medicine ignoring the criticality of patient. When the boy was taken for the prescribed tests and an injections at a nearby Laboratory he had severe seizer which had last for a long time. Hence, he was rushed to Opposite Party clinic where an injection was given with a suggestion to admit in Aditya Hospital. Till reaching of the said hospital the condition of the boy was very critical and the doctors there criticized the complainant for delay in reaching the hospital and carelessness in Medication. The Doctors also told that, the patient was in coma state with least chances of survival as there was not even breathing and was in need of Ventilator. The boy patient was admitted in a Pediatric intensive care Unit.
- In Aditya Hospital the boy was considered as a patient of Opposite Party doctor for deciding the course medicine and dischargeable schedule. While discharging from the Hospital the doctors instructed the complainant to consult the Opposite Party for further course of treatment as an outpatient. Hence, the complainant regularly consulted the Opposite Party Doctor at his clinic but, the Opposite Party continued the same carelessness attitude. On 02.01.2014 the complainant again consulted the Opposite Party doctor for checkup, and subsequently on 08.01.2014 the complainant informed the Opposite Party doctor about reoccurrence of previous symptoms i.e., cough, Phlegm and snoring sound during sleep. The Opposite Party had suggested some antibiotic, which didn’t work hence the complainant again visited the Opposite Party doctor on 13.01.2014 and told about the problem and fever to the boy. The Opposite Party doctor informed that there is a blockage in nostrils due to cold and fever and prescribed some medicines, but, refused to accept that the boy was suffering with Pneumonia or its possibility.
- On 16.01.2014 at about 1-20 p.m., complainant reported to Opposite Party that the fever reaching alarming level with breathing problem. There upon Opposite Party doctor suggested blood and urine examinations for Malaria and other pathogens / infections but not for Pneumonia. On 17.01.2014 the Opposite Party doctor having reviewed Medical Examination Reports could not come to any conclusion and asked for continuation same medicines. On 18.01.2014 complainant reported that boy was suffering with very high fever and not controlling with prescribed medicines and required round the clock sponging. Then he prescribed injections for three days, but it was off no use. As there was no improvement even after injection for three days and since the condition of the boy was aggravated the complainant family members decided to consult some other doctor and accordingly the complainant went to Sunita Children’s Hospital on 21.01.2014 at 4-50 a.m., The duty doctor at Sunita Children’s Hospital at a glance identified the problem as Pneumonia and started treatment for it immediate hospitalization. The boy was kept in the Sunita Children’s Hospital for four days and treated for Pneumonia and then discharged.
- Because of violation of duty care, wrong diagnosis and carelessness on the part of the Opposite Party the complainant and his son have suffered and financial loss of Rs.1,20,000/- was caused towards expenditure in the hospitals. Because of wrong and excessive antibiotic long term health problems are likely to occur. There was physical and mental agony to the complainant and his other family members as the boy was hospitalized twice with frequent visit for consultations. There was a salary deductions to the complainant on account of frequent absence from the job for taking his son to the hospitals laboratory tests etc., Inview of all these things the complainant is seeking a compensation of Rs.10,00,000/- from the Opposite Party and this complaint is for realization of the said amount.
- The Opposite Party has filed detailed written version denying the allegations of carelessness and wrong diagnosis to the complainant’s who was brought to him for treatment. The version of the Opposite party is on 21.12.2013 Syed Muneeb Ahmed was brought to his clinic by his parents at 11-20 a.m., and inview of high grade fever and past history of febrile seizures, parents were advised about the need for admitting the boy at Aditya Hospital and they have agreed for it. While leaving his clinic the boy had seizures and same were effectively managed in the clinic itself and advised the patients to take boy immediately to the said hospital as he was having multiple seizures. The parents of the boy were explained in detailed about the condition of the boy and the necessity for admitting into the Hospital.
- At Aditya Hospital proper care was taken and the parents of the boy were thoroughly satisfied with the attention bestowed on the child. At Aditya Hospitals the ailment was diagnosed as Bronco Pneumonia and he was treated for the same. After stabilization of the condition the boy was discharged from the Hospital on 28.12.2013 advised the parents to come one week after for review. At the time of discharge some medicines have been prescribed for use. On 30.12.2013 the boy was again brought by his parents with a complaint of poor appetite and having noted it appropriate advise was given. Again on 02.01.2014 the child was brought to his clinic with a complaint of Cough, cold and vomiting, for the same necessary medication was given with instructions to the parent to bring the child again on 03.01.2014 if, condition worsens. As there is no worsening of the child’s condition he was not brought to the clinic. But, child was again brought to his clinic on 08.01.2014 with a complaint of weakness and the symptoms which occurred on 02.01.2014 and appropriate medicines were given on the said date. Again on 13.01.2014, the child was brought with a complaint of poor appetite for that necessary diet was advised. At that time there was no report of fever and respiratory symptoms which evidences that the child was fine. The condition of the child post his discharge from Aditya Hospital has nothing to do with the treatment given at Aditya Hospital. Infact, the treatment at Aditya Hospital was successful one.
- On 16.01.2014 child was brought to his clinic at 1-20 p.m., with the complaint of fever and mild respiratory infection, for which necessary medicines were prescribed with advice an for investigation’s. On 17.01.2014 father of the child came with reports. The report were analyzed and found urine, hematology, serology, LFT were within the normal range and there was no indication of sepsis. When the child’s father informed the child was suffering with fever he asked to bring the child for review. On 08.01.2014 the child was brought and after examination he advised the parents for admission but the parents refused and requested to treat as an outpatient. Though advised injectable medication i.e., Ceftriaxone for the suspected sepsis, the child’s father didn’t follow up and thereafter he was not contacted by child parents and he is not aware of subsequent treatment at M/s. Sunita Children’s Hospital.
- The allegation that child was in critical condition till he was taken to Aditya Hospital and doctors criticized for delay in reaching the hospital and carelessness in medication and that the patient was coma state with least chances of survival which are false. Infact, upon reaching the Aditya Hospital the child was given immediate care as per protocol of Status Epileptics, Anti convulsions were given and other supportive care was done. The child was in impending respiratory failure due to epileptics and he was intubated and connected to mechanical ventilator and stabilized. All necessary investigations and treatment were initiated. Neurological consultation was done and after treatment at the hospital the child recovered and was successfully extubated and shifted out of the intensive care and was kept and observed in the ward for few days and then discharged on 28.12.2013. At the time of child was afebrile, active and alert.
- The allegation that, he failed to diagnosis the ailments as pneumonia is absolutely misconceived and baseless. None of the reports filed by the complainant are conclusive of Bronco Pneumonia. As per Serology report, Sepsis was also mild and the child was never in critical stage. Neither oxygen was given nor pulse Ox meter used when he advised to readmit the child on 18.01.2014 the complainant refused. The documents at Sunita Children’s Hospital filed by the complainant also shows that, child again suffered Sepsis with Broncho Pneumonia which was cured at Aditya Hospital but, apparently it reoccurred which is a common phenomenon in the medical jurisprudence. If, the child was admitted in the hospital on 18.01.2014 as advised the same treatment could have been given. Neither there was carelessness nor in negligence while treating the child. There was no wrong diagnosis of the ailment to the child. Hence, he is not liable for any of the claims made by the complainant and as such the complaint is liable to be dismissed with exemplary costs.
- In enquiry stage for the complainant field his evidence affidavit exhibited 3 documents. Similarly, the Opposite Party has filed his evidence affidavit reiterating this substance the defence taken in the written version.
- On a consideration of material on the record the following points have fallen for consideration:
- Whether the Complainant could substantiate negligence on the part of Opposite Party in treatment of the complainant’s child ?
- Whether the complainant is entitled for the amount claimed in this complaint?
- To what relief?
12. Point No.1:- The complainant’s main allegation is on 21.12.2013 when he took his child to the Opposite Party clinic, the Opposite Party considered the illness as an ordinary ailment and prescribed medicines and advised for Blood Examination and CXR and Chest X-Ray and while child was at Laboratory for these examinations Major Seizure was occurred. Hence, child was shifted to the Opposite Party clinic and having realized critical stage of the child advised to admit in Aditya Hospitals. Then child was taken to Aditya Hospitals on the same day and the doctors there struggled for 15 minutes to control the seizures and child was treated there as patient of Opposite Party and was discharged on 28.10.2013 under stable condition. Again child was taken to Opposite Party clinic on 30.12.2013 with complaint of poor appetite thereafter on 02.01.2014, 08.01.2014 & 13.01.2014 child was taken to the Opposite party clinic with complainant’s of poor appetite and recurrence of symptoms which were earlier at the time of admission in Aditya Hospitals. Finally when the opposite party advised to admit complainant took child to Sunita Children Hospitals where treatment was provided for 4 days for Pneumonia and then was discharged. It is specific case of the complainant that, the Opposite Party failed to diagnose the ailments as Pneumonia whereas, soon after taking into Sunita Children’s Hospital Doctors diagnosed said ailment and provide treatment and thus, by sheer negligence administered medicines wrongly.
13. The Opposite Party contention is there was no negligence or wrong prescription of medicines and whatever treatment provided by him was correct one. In the case of medical negligence it is for the complainant to prove the same by examining expert witness. Admittedly in the instant case complainant has not chosen to examine an expert and the medical record relating the treatment in the clinic of Opposite Party, Aditya Hospital & Sunita Children’s Hospitals also doesn’t disclose that the Opposite Party wrongly diagnosed the ailment administered excessive dose of antibiotics.
I. The Hon’ble National Commission in the Judgment reported in (1) 2005 CPJ-10 held as under:
“In substance, for establishing negligence or deficiency in service there must be sufficient evidence that a doctor or a hospital has not taken reasonable care while treating the patient. Reasonable care in discharge of duties by the hospital and doctors varies from case to case and expertise expected in the subject, which doctor or a hospital has undertaken. Courts would be slow in attributing negligence on the part of the doctor if he has performed his duties to the best of his ability with due care and caution.”
II. In another case of Philips India Ltd., Vs. Kunjer Punner & Another reported in AIR 1975 Bom 306 upon which the learned counsel for Opposite Party placed reliance observed as under:
“A charge of professional negligence against a medical man was serious. It stood on a different footing to a charge of negligence against the driver of a motorcar. The consequences were for more serious. It affected professional status and reputation. The burden of proof was correspondingly greater. As the charge was so grave, so should the proof be clear.”
III. In another case of Nathan’s Medical negligence, 1957 edition at page 104 upon which the learned counsel for Opposite Party placed reliance observed as under:
“the burden of proving negligence rests upon a person who asserts it. In medical negligence cases therefore it is for the patient to establish his claim against the medical man and not for the medical man to prove that he acted with sufficient care and skill. It is by means of evidence of course the patient will seek to establish his claim but he evidence may take several different forms…..”
So, in the light of the above said proposition it is incumbent upon the complainant to place an expert evidence on the record to prove that, the medicines prescribed by Opposite Party initially at his clinic and subsequent administered medicine at Aditya Hospital are on account of wrong diagnosis or it is excessive usage of the antibiotics. It is not in dispute that on the very first day taking the child the Opposite Party clinic after prescribing some medicines he advised for the clinical examinations at Laboratory and seizures occurred there child was rushed back Opposite Party clinic where the earlier prescribed medicines were scored out and asked the complainant to take the child to Aditya Hospital and accordingly the child was taken to Aditya Hospital and treated there as inpatient till 21.12.2013. It is not in dispute that at the time of discharge the child was in stable condition and two days later was taken on 20.13.2013 with a complaint of no appetite and child fever. There are four visits to the Opposite Party clinic after discharge from Aditya Hospital and since earlier symptoms who alleged to have reoccurred the Opposite Party advised again to admit the child in the Hospital but instead complainant took to the child to Sunita Children’s Hospital where he was treated as in patient for four days. The claim of the complainant that at Sunita Children’s Hospital Doctors diagnosed the ailment as Pneumonia is not substantiated by the complainant because the prescriptions given at Sunita Children’s Hospital doesn’t disclose the same. If, really there was excessive administration of the antibiotics or wrong diagnoses by the Opposite party while treating the child at Aditya Hospital, the child would not have been in stable condition at the time of discharge. It is pertinent to bear in mind that, after discharge of the child from Sunita Children’s Hospital on 24.01.2014 again taken to two different clinics so, it is apparent that, the treatment that was provided to child at Aditya Hospital was not on account of wrong diagnosis. Though, the complainant has not exhibited the documents filed by him shows that, even after discharge from Sunita Children’s Hospital on 24.01.2014 he was again taken to Dr. Bhajaraj Raj another children specialist and Neurologist on 01.02.2014 and earlier to that on 25.01.2014 the child was taken to another doctor V.P. Bhole and prescription shows advise of some tests which were done at KVR diagnostic Centre. So, this record shows that the child was shown to two more doctors even after discharge from Sunita Children’s Hospital. It is the specific case of the complainant is that, the Doctors at Sunita Children’s Hospital soon after seeing the child diagnosed the ailment as Pneumonia and given treatment and same was. If that is so cured there was no necessity for the complainant to take a child again to two more doctors after discharge from Sunita Children’s Hospital.
The complainant allegation is that, the child was in critical condition when taken to Aditya Hospitals but none of the reports filed by the complainant supports that, the condition of child was critical. The child was not admitted in ICU and the Opposite Party gave treatment for sepsis while treating in Aditya Hospital. The discharge summary from Sunita Children’s Hospital filed by the complainant also shows that, the child was again suffered with Sepsis with Broncho Pneumonia for which treatment was given by Opposite party at Aditya Hospital. The Opposite Party explanation is the child was cured for sepsis and Broncho Pneumonia at Aditya Hospitals but same apparently it reoccurred and it is a common phenomenon in the medical jurisprudence. So, whatever the treatment was provided to child even at Sunita Children’s Hospital is continuation of the earlier treatment given by Opposite Party at Aditya Hospitals. So, absolutely there is no acceptable evidence on the record to show that, Opposite Party committed medical negligence while treating the complainant’s child.
The Hon’ble Supreme Court in the case of Jacob Mathew Vs. State of Punjab & Another (2005) SCC held as under:
“……….. Any responsible man entering into a profession which requires a particular level of learning to be called a professional of that branch, impliedly assures the person dealing with him that the skill which he professes to possess shall be exercised and exercised with reasonable degree of care and caution. He does not assure his client of the result. A lawyer does doesn’t tell his client shall win the case in all circumstances. A physician would not assure the patient of full recovery in every case. A surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial, much less to the extent of 100% for the person operated on. The only assurance which such a professional can given or can be understood to have given by implication is that he is possessed of the requisite skill in that branch of profession which he is practicing his skill with reasonable competence. This is all what the person approaching the professional can expect. Judged by this standard, a professional may be held liable for negligence on one of two findings; either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess.
…….No sensible professional would intentionally commit an act or omission which would result in loss or injury to the patient as the professional reputation of the person is at stake. A single failure may cost him dear in his career. Even in civil jurisdiction, the rule of res ipsa loquitur is not of universal application and has to be applied with extreme care and caution to the cases of professional negligence and in particular that of the doctors. Else it would be counter productive. Simply because a patient has not favorably responded to a treatment given by a physician or a surgery has failed, the doctor cannot be held liable per se by applying the doctrine of res ipsa loquitur.
……….(2) Negligence in the context of medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So as long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed.”
In the present case there is no material either oral of written to prove that the Opposite Party was negligent while giving treated to child of complainant either in his or at the Aditya Hospitals. Opposite Party cannot be held for reoccurant of disease to child after his discharge from Aditya Hospital.
Admittedly, in the instant case the complainant has not disputed qualification of the Opposite Party in treating child of the complainant. He miserably failed to state as to where exactly the Opposite Party was negligent while treating the child. In the absence of an expert medical evidence the self-serving statement of the complainant alone cannot be taken as sacrosanct to come to the conclusion that, the opposite party was negligent in diagnosing ailment of the complainant’s child or he administered excessive dosses of antibiotics. Even according to the complainant even before use of medicine prescribed by Opposite Party clinic on 21.12.2013 the child developed seizures. The complainant cannot say that, the Opposite Party failed to diagnosis ailment as Pneumonia on the day one of taking to Opposite Party clinic. What prevented the complainant to examine an expert medical officer or the medical officer who gave treatment to child Sunita Children’s Hospital to say that the early treatment given by opposite party at Aditya Hospital was incorrect one. Absolutely there is no iota of evidence of record to prove that the Opposite party either gave incorrect treatment without properly diagnosing ailment or administered excessive dosses of antibiotics. Hence, the point is answered against the complainant.
Point No.2: As there is medical negligence on the part of the Opposite Party the complainant is not entitled for the amounts claimed.
Point No.3: In the result, the complaint is dismissed. No order as to costs.
Typed by Typist, corrected and pronounced by us on this the 28th day of August, 2018.
MEMBER PRESIDENT
APPENDIX OF EVIDENCE
PW1 DW1
Sri SYED ANWAR Dr.Nithin Chandra Mathur
Exs. filed on behalf of the Complainant:
Ex.A1 is copy of Prescription of Dr. N. C. Mathur.
Ex.A2 is copy of Discharge Sheet of Aditya Hospital.
Ex.A3 is copy of Discharge Sheet of Sunita Children’s Hospital.
Exs filed on behalf of the Opposite party
Nil.
MEMBER PRESIDENT
