12.12.08

Sri.K.Gopalan,President

          This is a complaint filed under section 12 of the consumer protection Act for an order directing the opposite parties to pay a sum of Rs.1, 00,000/- as compensation.

            The averments in the complaint in brief are as follows: - The complainant, Mr.Vinod took his child Vaishak to the Koyili Hospital, with the complaint of fever and cough. Complainant consulted 1^st opposite party Dr.Roy Pulikkan and he came to examine the child. Immediately after seeing the child, Dr.Roy told the complainant that the child was suffering from chicken pox without diagnosing properly. Doctor did not ask anything about the illness to the complainant. Doctor did not go near to the child to examine him. On a mere look on the child Doctor prescribed medicine for 4 days. Even though the complainant had some doubt he purchased the medicine and gave to his child.

            After two days his child became restless. Rashes were developed almost all over the body. The eyes of the child became reddish and fluids were discharged from eyes and mouth. Ulcer appeared on the lips of the child and the cough aggravated. The child was taken to 1st opposite party and he prescribed more medicine. But after the consumption of this medicine the condition of the child became serious and the child was taken to the Academy of Medical Science Hospital, Pariyaram and admitted there on 3.1.2003. Treated there up to 19.1.2003. From the hospital the doctors told the complainant that illness was aggravated due to the erroneous prescription of medicine. The complainant submits that the life of his child was saved only because of the proper care and medicines provided from the medical college. The complication caused due to the negligence and deficiency of service on the part of opposite parties 1 and 2. So the complainant and family suffered sever mental agony and sever body pain, sufferings and loss of health to the child. The opposite parties are liable to pay a sum of Rs.70, 000/- for the medical expense and Rs.30, 000/- for the mental agony and loss of health suffered by the child.

            The 1^st opposite party filed version contending as follows: - There is no negligence or deficiency in service as alleged by the complainant. The complainant is not entitled to get any relief. It is admitted that the son of complainant was brought to the 1^st opposite party on 28.12.2002 with complaints of fever and cough. The patient had no other symptoms or signs. There were no skin rashes or irruptions at that time to suggest chicken pox. The 1^st opposite party saw the patient on 28.12.2002 morning and gave necessary medications for a respiratory infection. No diagnosis of chickenpox was made at the time of the first visit. The patient was brought for review on 31.12.2002 to the 2^nd opposite party hospital. The patient had vesicular skin lesion on this day and continued to have fever. Hence a diagnosis of chickenpox was made and necessary drugs were given. Acyelovit, Tab Avil ½ tds and caladryl lotion were the drugs given. Thereafter patient was lost for follow up. It is understood from the second document produced by the complainant that the patient was admitted at Pariyaram Medical College on 3.1.2003 and underwent treatment as a case of Erythema multiforme. The Advocates statement that the patient was brought to the 2^nd opposite party hospital on 20.12.2002 is a contradictory statement to the complainant’s admission that the patient was brought on 28.12.2002. The prescription shows that the 1^st opposite party treated the patient on 1^st stage as a case of respiratory infection with appropriate antibiotic and other drugs. Diagnosis of chickenpox was not made on the first visit complainant’s allegation that the 1^st opposite party told him that the patient was suffering from chicken pox is false. So also the allegations that the 1^st opposite party did not ask anything about illness, did not diagnose the child properly, did not go near to the child to examine him, and prescribed medicine on a mere look etc. are falsely cocked up with malafide intentions. The 1^st opposite party made diagnosis on proper history and physical examination. The allegation that the patient becomes restless after two days from taking the medicine is not true. The patient was seen by the 1^st opposite party on 31.12.2002 and was given medicines for the diagnosed condition of the child namely chickenpox. The child was brought second time to the 1^st opposite party on 31.12.2002 and the symptoms which the patient had cannot be attributed to be due to the drugs given by the 1^st opposite party on 28.12.2002. The allegation that the doctors from Medical College told the complainant that the illness aggravated since the prescription of medicine was erroneous is false and baseless. It is also false to say that they told the medicine prescribed might have been endangered the life of the child. No doctor can make such a statement with authority. The alleged diagnosis of Erythrina Multiforme has causes other than drug reactions. The causes include viral infections, which the patient had. All the drugs given by 1^st opposite party are standard medications given for the diagnosis condition of the patient and will not endanger the life of the child as alleged. The allegation that the complications caused due to the negligence and deficiency of service of 1^st opposite party is not correct. The 1^st opposite party had given due attention and care to the patient and had made appropriate diagnosis based on the symptoms and signs of the patient. On 28.12.2002 1^st opposite party had made a proper diagnosis of upper respiratory treat infections. On 31.12.2002 when the patient reported with vesicular rashes in the presence of the ongoing upper respiratory track infection, 1^st opposite party rightly thought of the possibility of chicken pox and gave the necessary medicines. Complainant was negligent in not bringing the patient for further follow up after 31.12.2002. There was no chance to assess the progressed stage of the child’s illness as on 3.1.2003 and later. The diagnosis of chicken pox made by 1^st opposite party on 31.12.2002 and that of Erythema Multiforme made later than 3.1.2003 at Medical college are close differential diagnosis of the clinical condition with vesicular skin lesions, which the patient had. There is nothing wrong with the diagnosis of chickenpox in the context of vesicular skin lesions with presence of upper respiratory symptoms in the early stage of the child’s illness on 31.12.2002. Even if diagnosis is proved mistaken, it does not amount to any negligence’s since a mistaken diagnosis is not necessarily a negligent diagnosis. Erythema Multi forme in its early stage has smaller vesicles and closely resembles chicken pox, the a\differentiation being possible as the illness progress 1^st opposite party was not given a fair chance to see the progression of the illness after 31.12.2002 and hence cannot in any way be blamed for making a diagnosis of chicken pox in the early stage of the illness, which is a close differential diagnosis of Erythema Multi forme

            The 1^st opposite party also contended that the diagnosis of Erythema Multiforme purely a clinical diagnosis based on the advanced stage of the patients illness as on 3.1.2003 and later, which the 1^st opposite party had no chance to see. Therefore there is no negligence or deficiency of services on the part of the 1^st opposite party. The Erythema Multiforme which the patient allegedly was diagnosed to have, could very well be due to the viral infection, the patient had. It cannot be said that the condition of Erythema Multiforme was due to the drugs given by the 1^st opposite party. The drugs given are standard drugs. He also contended that the amount claimed is highly exaggerated and claimed without any basis.

            2^nd opposite party Koyili Hospital contended that there was no negligence or deficiency in the treatment given to the complainant’s son. The contentions of the 2^nd opposite party in brief are as follows: -

The 1^st opposite party Dr.Roy Pulickan is an experienced paediatrician having DCH and MD degree. The patient Vysakh was brought to the 1^st opposite party on 28.12.2002 with complaints of fever and cough. Doctor gave medications for respiratory infections. The patient was brought for review on 31.12.2002 to the 2^nd opposite party Koyili Hospital. The patient had vesicular skin lesions on this day and continued to have fever. Hence a diagnosis of chickenpox was made and necessary drugs were given. Thereafter the patient was lost for follow up. The averment that the patient was brought to Hospital on 28.12.2002 is contrary to the statement in the lawyer notice that the patient was brought to Hospital on 29.12.2002. The prescription will show that the treatment was given for respiratory infection. No diagnosis of chickenpox was made on 28.12.2002. The allegation that the opposite party told the complainant that the patient was suffering from chickenpox is not supported by any material evidence and is false. The allegation that after two days from taking the medicine, the patient becomes restless is not true and hence denied. The patient was seen by the 1^st opposite party on 31.12.2002 and was given medicines for the diagnosed condition of the child namely chickenpox. The 2^nd opposite party agrees almost totally with the first opposite party. The 2^nd opposite party also contended that the diagnosis of Ertythema Multiforme has causes other than drug reactions. The causes include viral infection, which the patient had. The patient was admitted to the Academy of Medical science, Pariyaram on 3.1.2003. This is three days after the patient was last reviewed by the 1^st opposite party.  The diagnosis of Erythema Multiforme is purely a clinical diagnosis based on the advanced stage of patient’s illness as on 3.1.2003 and later which the 1st opposite party had no chance to see. Erythema Multiforme in its early stage has smaller vesicles and closely resembles chickenpox, the differentiation being possible as the illness progress. In this case the 1^st opposite party was not given a fair chance to see the progression of the illness after 31.12.2002 and hence cannot in any way be blamed for making a diagnosis of chicken pox in the early stage the illness, which is a close differential diagnosis of Erythema Multiforme. 2^nd opposite party also contended that the difficulties if at all were present that were the result of the disease process, which the patient had. The amount stated to have been spent is highly exaggerated. There is no negligence or deficiency in service on the part of the opposite party. The complainant is not entitled to get any compensation.

            On the above pleadings the following issues were raised for consideration:

1.Whether there is any deficiency on the part of the opposite parties?

2.Whether the complainant is entitled for the relief as prayed in the complaint?

3.Relief and cost.

            Evidence in this case consists of the oral evidence of PW1, DW1, and Exts.A1 toA3 series.

Issue Nos.1 to 3

            Admittedly the son of the complainant Vysakh had been taken to Koyily Hospital, 2^nd opposite party, on 28.12. 2002 at first time and again on 31.12.2002. 1^st opposite party Dr.Roy Pulikkan attended the child on both occasions. The child was brought to hospital first time with the complaint of fever and cough 1st opposite party prescribed medication Ext.A1. Ext.A1 is the prescription, PW1; the father of the child in cross-examination deposed that “ 28.12.2002

            It is evident that the child was brought to the doctor with the complaint of fever and cough. The complainant has the case that the doctor immediately after seeing the child stated to him that the child was suffering from chickenpox. He further alleged that the opposite party doctor did not diagnosis the child properly and doctor hesitated to go near the child to examine him. It is a serious allegation. A doctor is expected to act in a manner, which is acceptable to the medical profession. Complainant stated that he had consulted with the doctor before the child was examined.  That means there was a discussion between the doctor and complainant with respect to the disease of the child.

            DW1, the doctor contended that on28.12.2002 he gave necessary medication for respiratory infection. He has further contended that there was no diagnosis of chicken pox on the occasion of first visit on 28.12.2002. The Doctor admitted that he has diagnosed the disease of the child as chicken pox on the second visit. The complainant has no case that the doctor has any hesitation to go near the child and examining him on the second time, when he was brought for review on 31.12.2002. If there was hesitation to go near the child at first visit it is quite natural that the doctor should have hesitation on the second time also especially under the circumstances when he disease was being confirmed, whether right or wrong as chicken pox. Hence there is no logic in giving weight upon this allegation that the doctor hesitated to go near the child and examining him.

            PW1, complainant deposed in the cross examination that it is not correct to say that the medicine prescribed on 28.12.2002 were not for chickenpox. A question was put to him then that  “ 28-12-02            Doctor

The answer was negative “        “ Until and unless it is proved that the medication prescribed on 28.12.02 was for chicken pox it cannot be believed that the disease was diagnosed as chicken pox on 28.12.02 Ext.A1 is the prescription given on 28.12.2002 which contains medications viz.

1.NOVAMOX

2.Febrexplus

3.Ashalin

            DW1 in cross-examination explained thus “ Amoxylin

1^st opposite party doctor has stated in his version that on 28.12.2002 he gave necessary medications for respiratory infection. The child was brought to doctor with the complaint of fever and cough, which naturally require respiratory care. As per the explanation given by DW1, Ext.A1 is meant for respiratory infection. It was stated in the version that there was no skin rashes or eruptions on 28.12.2002 to suggest chicken pox. The evidences of DW1 also show that there was only complaint of fever and cough. Ext.A1 and evidences of PW! and DW1 makes it clear that it was not diagnosed as chicken pox on 28.12.2002. Complainant could not prove the medicine prescribed in Ext.A1 on 28.12.2002 was     for chicken pox. Novamox, Febrex plus and Asthalin are common medicines and examination of an ordinary doctor is sufficient prove those medicines but complainant was not interested to place evidence. Complainant could not substantiate his allegation that the medicines prescribed on 28.12.2002 were for chicken pox.

            The child was again taken to doctor on 31.12.2002. Doctor has admitted that he has diagnosed the disease as chicken pox on 31.12.2002. The case of the complainant is that after consuming the medicine the condition of the child became restless and rashes were developed almost all over the body. The eyes of the child   became reddish and fluids were discharged from eyes and mouth and ulcer appeared on the lips of the child and the cough aggravated.

            On 28.12.2002 1st opposite party has made diagnosis of upper respiratory tract infection. He has stated both in his version and in chief affidavit that the child was brought to him on 31.12.2002 with vesicular lesion suggestive of chicken pox. Diagnosis was made as chickenpox and medicine was prescribed. Ext.A1 is the prescription. The drugs given were viz.

1. Acyclover (Havix/occivi)
2. Tablet Domstal
3. Tab Avil1/2 tds and
4. .Caladryl  lotion

The complainant did not bring the child to 1^st opposite party thereafter for review. 1st opposite party has got no opportunity to observe or review the progressed stage of illness. The child was taken to AMSP after three days.  The evidence of PW1 shows that he took three days time to take the child to AMSP because there was immediate aggravation.  The stage of illness on 3.1.03 and on 31.12.02 may have vast difference. The diagnosis of chicken pox made in the context of vesicular skin lesion with presence of the ongoing upper respiratory tract infection in the earlier stage. Opposite parties case is that Erythema Multiforme in its early stages has similar vesicles and close resemblances which can be differential only with the progress of illness and in this case the first opposite party was not given fair chance to see the progression of the illness after 31.12. 2002 and hence cannot in any way be blamed for making a diagnosis as chicken pox, in the early stage of the illness which is a close differential diagnosis of Erythema Multiforme. 2^nd opposite party also contended that the difficulties if at all were present that were the result of the process of diseases, which the patient had. The opposite parties further contended that all the drugs given by him are standard medicines and it will not endanger the life. Complainant was not able prove that there was any drug that endanger the life or there was any drug reaction that lead suffer the child patient. Complainant has not taken interest to produce any expert opinion in this regard. The complainant failed to substantiate his averments with authoritative medical texts or expert opinion that his child suffered on account of any medicine prescribed by 1^st opposite party.  In this context the direction given in the decision Phool Bai Gupta Vs. Dr.R.Bhattacharya reported in III (2005) CPJ 399 bears much relevancy. The appellate court confirmed the decision of Forum on the ground that the appellant failed to establish her averments with authoritative medical texts or expert opinion that she suffered on account of any medicine prescribed by the respondent. Thus the complainant herein failed to prove that the medication prescribed by 1^st opposite party caused sufferings to his child and it cannot be believed that the complainant was told from the hospital that the medicine prescribed by 1^st opposite party might have endanger the life of the child.

      It is true that the correct diagnosis of the illness of the child was done at AMSP as “Erythema Multiforme with Lower Respiratory Infection”. It can be seen that on 28.12.2002 1^st opposite party doctor diagnosed of upper respiratory tract infection. On 31.12.2002 the child was reported with vesicular rashes in the presence of the on going respiratory tract infection. 1^st opposite party has stated that the diagnosis of chicken pox was made on 31.12.2002 two days earlier to the day of diagnosis as ‘Erythema Multiforme’ made at AMSP. With the available evidence it can be seen that the diagnosis of chicken pox made by 1^st opposite party in the context of vesicular skin lesion with presence of upper respiratory symptoms. Nelson’s Text Book of Pediatrics 18^th Edition, Vol.2 page 2685 says “Erythema Multiforme (EM) has numerous morphologic manifestations on the skin, varying from erythematous macules, papules, vesicles, bullac or urticaria-appearing plaques to patches of confluent Erythema.The diagnosis of EM is established by finding the classic lesion……….Prodromal symptoms are generally absent. Lesions typically resolve without sequelae in about 2 week; progression to Stevens Johnson Syndrome does not occur”

The above explanation makes it clear that Erythema Multiforme in its early stages has similar vesicles and close resemblances of chicken pox. When the child was brought before 1^st opposite party the illness was in its early stage and the doctor thereafter did not get opportunity to evaluate the progression of the illness after 31.12.2002. Under such a circumstances it cannot be held straight away that the doctor.1^st opposite party did something, which a doctor possessing ordinary skills ought not to have done. There is no evidence in this regard. The decision reported in III (2002) CPJ 136(NC) brings to light the importance of proving these basic tenets. With the available evidence on record it cannot be said that 1^st opposite party has not discharged the implied legal duty to exercise due diligences as is expected to act in such a manner or is expected in the ordinary course from his contemporaries.

Ext.A2 go to show that respiratory tract infection was also made diagnosis in AMSP. Opposite party has diagnosed respiratory tract infection on 28.12.2002 itself and medicine prescribed for it. It reveals that 1^st opposite party has not erred in his judgment totally. Even if there is error in judgment it does not amount to medical negligence.

            In the case Dr.R.C.Sharma Vs. Jageram reported in I (2003) CPJ 248(NC) National commission held that “Error in judgment does not amount to medical negligence”. Thus even if the judgment went wrong totally opposite party cannot be held liable for negligence. The owes of proving negligence and the resultant deficiency in service is clearly on the complainant. Complainant has not substantiated his allegation that the child suffered by drug reaction on account of medicines prescribed or treatment given to her by 1^st opposite party doctor. No evidence has been brought on record to prove the negligence and resultant deficiency in service. The decision reported in I (1999) CPJ 13(NC)(Calcutta Medical Research Institute Vs. Bimalesh Chatterjee & Ors.) held that in the absence of evidence it cannot be held that the doctors are guilty of any negligence or deficiency in service and the onus of proving negligence and resultant deficiency in service. In the case Subashis Dhar  & Ors. Vs. Smt.Sanjukta  Sengupta & Ors.  Reported in III (1999) CPJ 29 (NC) it is undoubtedly made it clear that doctors should not have hold guilty of giving wrong treatment without some medical evidence to that affect. It continued to say even if it is assumed that the doctors had erred in their judgment it cannot be held that there was medical negligence or deficiency of service

            In the instant case the complainant has not produced any expert evidence or authoritative medical texts to prove that his child suffered on account of any medicine prescribed or treatment adopted by 1^st opposite party doctor. Therefore in the light of the evidences brought on record, we are of the view that it is not possible to hold that there is medical negligence or deficiency in service on the part of opposite parties. Thus the issues 1 to 3 found against the complainant and pass orders accordingly.

In the result, the complaint is dismissed. No order as to cost.

              Sd/-                   Sd/-                               Sd/-

     President                      Member                       Member

                                 APPENDIX

Exhibits for the complainant

A1Prescription of OP dt.28.12.2002

A2. Discharge card issued from Academy of Medical Sciences Hospital, Pariyaram

A3.series Medical bill for an amount of Rs., 7743.57

Exhibits for the opposite parties: Nil

Witness examined for the complainant

PW1.Complainant

Witness examined for the opposite parties

DW1.Dr.Roy Pulickan

                                        /forwarded by order/

                                    Senior Superintendent

Consumer Disputes Redressal Forum, Kannur