DIST. CONSUMER  DISPUTES  REDRESAL  COMMISSION

NORTH 24 Pgs., BARASAT.

C.C. No. 156/2021

Date of Filing:-                                  Date of Admission:-              Date of Disposal:-

23.08.2021                                                17.11.2021                                          09.04.2024

P R E S E N T                :- Sri Daman Prosad Biswas………President.

                                       :- Sri  Abhijit Basu………………. Member.

JUDGMENT/FINAL ORDER

          Complainant above named filed this complaint U/s 35 of the Consumer Protection Act, 2019 against the aforesaid Opposite Parties praying for direction upon the Opposite Parties to pay Rs. 80,000/- as medical expenses, Rs. 7,00,000/- as compensation, Rs. 15,000/- as litigation cost and other reliefs.

          He alleged that on 15/04/2019 petitioner had been sleeping from 11 a.m. to the evening and petitioner’s family member in the evening called to Dr. Subrata Roy / O.P No. 1 at his home with an apprehension that Complainant got sick. O.P No. 1 examined the Complainant and prescribed medicine and also advised lab test and radiological examination. Complainant paid Rs. 400/- to the O.P No. 1 as consultation fee.

          As per the aforesaid prescription, family members took care of the Complainant, started medicine and arranged test. After three days i.e. 18/04/2019 O.P No. 1 also examined the Complainant, perused the test reports and further prescribed medicine and on that time Complainant paid Rs. 200/- to the O.P No. 1. Thereafter, Complainant done further test as per prescription and spent Rs. 270/- for the test. Complainant became more sick and was unable to take food. Matter was informed to O.P No. 1 but he did not pay any heed.

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          On 08/05/2019 O.P No. 1 again examined the Complainant, saw the reports and on that time Complainant paid Rs. 400/- to the O.P No. 1 as his fees. But Complainant did not get any relief and condition of the Complainant developed insomnia and gradually got sicker. Family members of the Complainant took away the Complainant before O.P. No. 1 on 29/05/2019 and reported the entire matter. O.P No. 1 after examining the Complainant prescribed further medicines and advised tests. On that time Complainant paid Rs. 200/- to the O.P No. 1 as his fees. Complainant purchased all the medicines every time as per the aforesaid prescription.

          He further stated that shopkeeper did not provide any money receipt for those medicines though family members of the Complainant requested several times to provide bills for the medicines but all effort went in vain. Medicine shop i.e. O.P No. 2 failed to provide the purchase bill and for that reason O.P No. 2 doing unfair trade practice.

          The family members of the Complainant were badly worried about the health condition of the Complainant. Thereafter, Complainant and his family members went to the OPD Apollo Gleneagles Hospital at 58, Canal Circular Road, Kolkata – 700054 on 11/06/2019.

          He further alleged that O.P No. 1 did not refer him before any higher centre or to a specialist for better treatment.

          He further alleged that he found from the prescribed medicine that your petitioner / Complainant became gradually got more sick due to overdosing, due to prescribed combination medicine having the same content list to fast pounding or heartbeat, severe dizziness or nervousness, insomnia (sleep problem), increased blood pressure due to use of hepatic toxic brand combination drug that leads to damage liver kidney (AKI) and causes other organic and systematic changes. These hepatic toxic drug combination is banned by Ministry of Health and Family Welfare. A gazette by Ministry of Health and Family Welfare has banned 344 medicines of fixed drug combination. Thereafter, Complainant continued his treatment before the Apollo Gleneagles Hospital and spent huge amount of money for continuation of his treatment which amounts to Rs. 80,000/-.  Hence, the Complainant filed this case.

          O.P No. 1 appeared in this case and filed W/V and denied the entire allegations made in the petition contending interalia that the case is not maintainable, case is barred by different laws and Complainant has no cause of action. He further contended that he is a qualified doctor in practicing medicine and he was medical officer of JNM Hospital, Kalyani Nadia. Complainant came before his on different dates with some complaint on his health. He after examining him advised some medicines and test.

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          Complainant visited the hospital namely Apollo Gleneagles Hospital on 11/06/2019 and doctor attached to the said hospital prescribed medicines and line of treatment made by O.P No. 1 and doctors of said hospital were more or less same. Complainant intensionally and motivatedly stated that O.P prescribed brand medicine. He further stated that no brand medicine were prescribed by him. He prayed for dismissal of the case.  

TRIAL

During Trial, Complainant filed affidavit-in-chief. O.P No. 1 filed questionnaire and Complainant gave answer.

O.P No. 1 filed affidavit-in-chief. Complainant filed questionnaire. O.P No. 1 gave answer.

DOCUMENTS:-

At the time of filing of this complaint, Complainant filed the following documents:-

1. Copy of prescription dated 15/04/2019, 18/04/2019, 08/05/2019 and 29/05/2019 ……..4 sheets…..xerox.
2. Copy of pathological report. ……..7 sheets…..xerox.
3. Copy of receipt of pathological test issued by Review Diagnostic. ……..4 sheets…..xerox.
4. Copy of documents relating to treatment of Complainant before Apollo Gleneagles Hospital along with different dates and its report. ……..41 sheets…..xerox.

BNA

Complainant filed BNA. O.P No. 1 filed BNA.

Decision with Reasons

We have carefully gone through the petition of complaint filed by the Complainant, W/V filed by the O.P No. 1, affidavit-in-chief filed by the Complainant along with questionnaire and answer, affidavit-in-chief filed by the O.P No. 1 along with questionnaire and answer and BNA filed by both the parties.

On perusal of affidavit-in-chief filed by the Complainant we find that Complainant corroborated his allegation in the affidavit-in-chief. On perusal of affidavit-in-chief filed by the O.P No. 1, we find that O.P No. 1 corroborated his statement in the affidavit-in-chief.

We have also carefully gone through the BNA filed by both the parties.

It is the main allegation of the Complainant that O.P No. 1 prescribed some medicines to the Complainant which have banned by the Ministry of Health and Family Welfare.

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During hearing Complainant produced Net copy of Gazette Notification issued by Ministry of Health and Family Welfare. On perusal of the said document we find that said notification contains list of 344 drugs which were banned by the said department. He further argued that during treatment O.P No. 1 advised chericof – SF syrup which is banned medicine. He further stated that O.P No. 1 advised Correctal plus tablet which is also banned medicine. He further argued that Correctal plus tablet is a combination of paracetamol + nimesulide tablet. He also produced copy of journal of internal medicine 2000:247:153-155 (3 pages). He further stated that use of nimesulide may cause fatal hepatitis and renal failure during treatment.

In reply, Ld. Advocate for the O.P No. 1 produced copy of Saudi Journal of kidney disease and transplantation (Year 2012/Vol.23/Issue No. 6/ Page No. 1294-1296). He referred the said judgment and submits that in the said Journal it has mentioned “a search of the literature found very few cases of nimesulide – induced renal failure being reported. To the best of our knowledge this is the first case of nimesulide induced renal failure reported in the pediatric age group. We did not perform a renal biopsy as the patient had improved and it would not have changed the management of the disease. In conclusion we wished to highlight that nimesulide can provoke acute renal failure and a history of nsaid use should be sought in all patients presenting with unexplained renal failure.”  

In the present case, Complainant cited a decision of Hon’ble N.C.D.R.C (Dr. Kunal Saha Vs. Dr. Sukumar Mukherjee and Ors. Dated 01/06/2006) reported in iii (2006) CPJ 142 NC. Hon’ble N.C.D.R.C held “with regard to alleged deficiency in the treatment given to Mrs. Anuradha by Opposite Parties doctors 2, 3, 5 and 6 there is no substance. The contention against the hospital that it was not having burns ward and therefore, the deceased suffered is also without substance. Hence, this complaint is dismissed.”

He also cited another decision reported in (2010) 5 SCR 1 (V. Krishan Rao Vs. Nikhil Superspeciality Hospital and Anr. dated 08/03/2010). We find that Hon’ble Supreme Court held “that expert evidence is not required in all medical negligence cases and expert evidence is necessary when Fora comes to the conclusion the case is complicated or such that it cannot be resolved without assistance of expert opinion.” Hon’ble Supreme Court further held “that Fora cannot follow mechanical or strait jacket approach. Each case has to be judged on its own fact.”

In reply Ld. Advocate for the O. P No. 1 cited a decision of Hon’ble Supreme Court reported in I (2024) CPJ 22 (SC). On perusal of the said decision we find that Hon’ble Supreme Court held “that principles of res ipsa loquitur get attracted were circumstances strongly suggested per taking in negligent behavior by person against whom and acquisition of negligence is made – strong incriminating circumstancial of documentary evidence is required for application of doctrine.”

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Ld. Advocate for the O.P No. 1 cited another decision of Hon’ble N.C.D.R.C (Irene pais and Ors. Vs. Dr. Anil Pinto and Anr.). We find that Hon’ble N.C.D.R.C held “that the aforestated allegations against the treating doctor and the hospital are not sufficient to hold that there was deficiency in pre-operative diagnosis or any kind of negligence at the hands of the treating doctor while performing anyone of the aforenoted surgeries / procedures. Hence, no fault can be found with the decision of the State Commission dismissing the complaint. In the result the appeal is dismissed but with no order as to costs.”

Ld. Advocate for the O.P No. 1 cited another decision of Hon’ble Supreme Court (Martin F D’Souza Vs. Md. Ishfaq). We find that Hon’ble Supreme Court held “the courts and consumer Fora are not experts in medical science, and must not substitute their own views over that of specialist. It is true that the medical profession has to an extent become commericialised and there are many doctors who depart from their hypocratic oath for their selfish ends of making money. However, the entire medical fraternity cannot be blamed or branded as lacking in integrating or competence just because of some bad apples.”

Ld. Advocate for the O.P No. 1 cited a decision of Hon’ble N.C.D.R.C (Garlapati Kameshwara Rao and Anr. Vs. Kinnera Superspeciality Hospital Khammam). We find that Hon’ble N.C.D.R.C in para no. 34 held “a medical practitioner is not liable to be held negligent 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. He would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field. For instance, he would be liable if he leaves a surgical gauze inside the patient after an operation vide Achutrao Haribhau Khodwa & Others V. State of Maharashtra & others, or operates on the wrong part of the body, and he would be also criminally liable if he operates on someone for removing an organ for illegitimate trade.”

Ld. Advocate for the O.P No. 1 cited a decision of Hon’ble N.C.D.R.C (Kundallal Jaiswal and Anr. Vs. Dr. Mala Pandya). We find that Hon’ble N.C.D.R.C held “Perusal of OT record shows that the emergency LSCS was performed by Dr. Mala Thakkar alongwith Dr. Kansariya, under spinal Aneasthesia, which was administered by Dr. Jyoti Thite. The operation was performed under high risk consent and the consent form was signed by her husband, Mr. Arvind and the patient herself. The medical record lacks the details of rounds taken and the charges levied against the names of Dr. Prashant Mahajan and Dr. Mala Thakkar. I am unable to persuade myself to agree with the complaint that the patient (Mrs. Sarika) has to remain life-long on medication and she would not have normal delivery.

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In view of the foregoing discussion, I do not find any evidence of medical negligence or unfair trade practice on the part of O.P No. 1. In my view, LSCS delivery was essential as the double loop of cord was present around the neck of fetus. It was performed by O.P No. 1 as per standard obstratics norms. Therefore, there was no lapse on the part of O.Ps. The complainants had approached the State Commission with highly inflated claim to confer jurisdiction on the State Commission. In my view, the complainants deserve only refund of Rs. 5,00/-, which appears to be charged by the OPs as fee for rounds. Therefore, the appeal is partly allowed to that extent, with direction that the OPs shall refund Rs. 5,000/- to the complainants with interest @10% per annum from 27.3.2015 till today, within four weeks from the date of receipt of a copy of this order, failing which, the said amount will carry interest @18% per annum from 27.3.2015 till its realization.”

Ld. Advocate for the O.P No. 1 cited another decision of Hon’ble Supreme Court (C.P. Srikumar Vs. S. Ramanujam). We find that Hon’ble Supreme Court held “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 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.”

Ld. Advocate for the O.P No. 1 cited another decision of Hon’ble Supreme Court (H N Shankarasastri Vs. Asstt. Director of Agriculture). We find that Hon’ble Supreme Court held “The importance of the Act lies in promoting welfare of the society by enabling the consumer to participate directly in the market economy. It attempts to remove the helplessness of a consumer which he faces against powerful, business, described as, ‘a network of rackets’ or a society in which, ‘producers have secured power’ to ‘rob the rest’ and the might of public bodies which are degenerating into storehouses of inaction where papers do not move from one desk to another as a matter of duty and responsibility but for extraneous consideration leaving the common man helpless, bewildered and shocked. The malady is becoming so rampant, widespread and deep that the society instead of bothering, complaining and fighting against it, is accepting it as part of life. The enactment in these unbelievable yet harsh realities appears to be a silver lining, which may in course of time succeed in checking the rot.”

Ld. Advocate for the O.P No. 1 cited another decision of Hon’ble Supreme Court (Ms. Ins Malhotra Vs. Dr. A Kriplani and Ors.). We find that Hon’ble Supreme Court held “doctor named in the complaint were qualified specialist in their respective field. They tried their best to save life of patient. No case of medical negligence or deficiency in service made out against them.”

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Ld. Advocate for the O.P No. 1 cited a decision of Hon’ble N.C.D.R.C (Ravindra Dhyaneshwar Patil and Anr. Vs. Dr. Vinay Tule). We find that Hon’ble N.C.D.R.C held “A Bench consisting of Hon’ble Justice Markandey Katju and R.M. Lodha as his Lordship then was held that “A medical practitioner is not liable to be held negligent simply because things went wrong from a mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another. He would be liable only where his conduct fell below the standards of a reasonably competent practitioner in his field. Hon’ble Justice Katju commented that;

While doctors who cause death or agony due to medical negligence should certainly be penalized, it must also be remembered that like all professionals doctors too can make errors of judgment, but if they are punished for this no doctor can practice his vocation with equanimity. Indiscriminate proceedings and decisions against doctors are counter-productive and serve society no good. They inhibit the free exercise of judgment by a professional in a particular situation.”

Ld. Advocate for the O.P No. 1 cited a decision of Hon’ble N.C.D.R.C (Usha Lakshman & Ors. Vs. Dr. N. Chandrashekar & Anr.). We find that Hon’ble N.C.D.R.C held “Learned Counsel for the appellant placed reliance on judgment of Hon’ble Apex Court in – (2004) 8 SCC 56 – Savita Garg V. Director, National Heart Institute in which it was observed that once complainant has successfully discharged the initial burden that the hospital was negligent on account of which patient died, burden lies on the hospital and the concerned doctor to prove that there was no negligence in the treatment. I agree with the proposition of law laid down by the Hon’ble Apex Court in the aforesaid case, but this case is not applicable to the facts and circumstances of present case. Complainant has failed to adduce any expert evidence on account of which it could have been presumed that OPs were deficient in providing treatment and in such circumstances, OPs were not required to prove that they were not negligent in giving treatment.”

Ld. Advocate for the O.P No. 1 cited another decision of Hon’ble Supreme Court (Post Graduate Institute of Medical Education and Research Vs. Jaspal Singh). We find that Hon’ble Supreme Court held “With regard to the professional negligence, it is now well settled that a professional may be held liable for negligence if 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. It is equally well settled that the standard to be applied for judging, whether the person charged has been negligent or not; would be that of an ordinary person exercising skill in that profession.

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It is not necessary for every professional to possess the highest level of expertise in that branch which he practices.”

Ld. Advocate for the O.P No. 1 cited another decision of Hon’ble Supreme Court {C.P. Sreekumar, M.S. (Ortho) Vs. S. Ramanujam}. We find that Hon’ble Supreme Court held “Complainant failed to produce any evidence as to doctor’s lack of skill and expertise in performing the operation – Held, bald statement of complainant cannot be accepted – When he has neither produced contrary evidence nor rebutted doctor’s version that aggravation was due to muscular spasm – Negligence cannot be attributed to the hospital staff with certainty.”

In the present case it is the main allegation of the Complainant 1) O.P No. 1 prescribed some medicines which have been banned by the competent authority. 2) Complainant consumed the aforesaid banned medicine and he sustained various abnormalities in his body and for that reason he compelled to take shelter before the doctor of Apollo Gleangles Hospital and compelled to continue his treatment there and compelled to spend more or less Rs. 80,000/-. Due to this sufferings he is entitled to adequate compensation from the O.P No. 1.

Let us discuss the first point:-

On perusal prescription issued by O.P No. 1 in favour of the Complainant we find that O.P No. 1 in his prescription dated 15/04/2019 prescribed chericof-SF and tablet correctal plus. In the prescription dated 18/04/2019 O.P No. 1 also prescribed chericof-SF. In the prescription dated 29/05/2019 O.P No. 1 prescribed pacimol plus.

On perusal of Net copy regarding composition of chericof-SF we find that said medicine consist of phenylephrine (5 mg) plus Chlorpheniramine maleate (2 mg) + Dextromethorphn hydrobromide (10 mg). In the aforesaid notification fixed dose combination of Chlorpheniramine Maleate + Phenylephrine + Dextromethorphn Hydrobromide + Menthol is banned medicine.

On perusal of Net copy regarding composition of Correctal plus tablet we find that said tablet consist of caffeine (15 mg) plus Chlorpheniramine maleate (2 mg) and paracetamol (500 mg) + Phenylephrine (5 mg). In the aforesaid notification we find that fixed dose combination of caffeine + paracetamol  + Phenylephrine + Chlorpheniramine maleate is banned medicine.

On perusal of Net copy regarding composition of Pacimol plus, we find that said tablet consist of Paracetamol plus Nimesulide i.e. Paracetamol (500 mg) and Nimesulide (100 mg).

In the aforesaid notification, combination of Nimesulide plus Paracetamol dispersible tablets. Accordingly, we find that Pacimol plus tablet is banned medicine.

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In view of aforesaid discussion, it is clear before us that aforesaid medicine namely Chericof-SF, Correctal Plus tablet and Pacimol plus tablet are banned medicine and O.P No. 1 prescribed those medicine to the Complainant.

Let us discussed about the second point:-

Complainant alleged that as per advice of doctor he purchased those medicine and consumed the same and suffered with various complication on his health as a result he sustained various complications and sustained health hazards and his condition was deteriorated day after day and in this critical situation he was compelled to take shelter before Apollo Gleneagles Hospital and continued his treatment there and compelled to spent near about Rs. 80,000/-.

As per his contention he purchased the aforesaid medicines which were prescribed by O. P No. 1 but curious enough that Complainant failed to produce any medicine purchased voucher in support of his contention that he (Complainant) purchased the aforesaid medicine as well as other medicines as per prescription of O.P No. 1.

Complainant stated in his complaint that he purchased the aforesaid medicines from O.P No. 2 and O.P No. 2 did not issue any voucher regarding sale of aforesaid medicine.

I have stated earlier that O.P No. 1 examined the Complainant on four occasions namely 15/04/2019, 18/04/2019, 08/05/2019 and 29/05/2019. All those four occasions Complainant as per his statement purchased medicines from O.P No. 2 and he did not issue any cash memo.

It was the duty of the Complainant to procure purchased voucher. If O.P No. 2 did not issue the same as per his statement, then why he purchased the medicine on the next date from the O.P No. 2. When O.P No. 2 not yet issued the cash memo voucher why the Complainant purchased medicines from him on four consecutive occasions. There is no satisfactory explanation from the Complainant.

During hearing of argument Complainant failed to explain as to why he purchased the medicine from O.P No. 2 without any cash memo or purchase voucher.

In view of aforesaid situation it is very difficult to believe that Complainant actually purchased the medicines which were prescribed by O.P No. 1 on the aforesaid four consecutive dates i.e. on 15/04/2019, 18/04/2019, 08/05/2019 and 29/05/2019.

In this situation we are unable to believe that Complainant purchased the medicines as per prescription dated 15/04/2019, 18/04/2019, 08/05/2019 and 29/05/2019. As the Complainant failed to established that he purchased medicine as per prescription dated 15/04/2019, 18/04/2019, 08/05/2019 and 29/05/2019, so, we are not in a position to believe that Complainant consumed those medicine and sustained health complications and his condition was deteriorated.

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On perusal of record we find that Complainant is the consumer and O.P No. 1 and 2 are service provider.

Having regard to the aforesaid discussion it is clear before us that Complainant has able to prove that O.P No. 1 has prescribed three banned medicines and for that reason necessary order should be passed against O.P No. 1. But Complainant has failed to established that he consumed the aforesaid banned medicine as per the aforesaid prescriptions and after purchasing the same.          

In the result, present case succeeds in part.

Hence ,

It is ordered,

That the present case vide no. C.C./156/2021 be and the same is allowed in part on contest against the O.P No. 1 and dismissed ex-parte against O.P No. 2 with cost of Rs. 5,000/- to be paid by O.P No. 1 in favour of the Complainant.

O.P No. 1 is directed to pay compensation amounting to Rs. 20,000/- in favour of the Complainant within 45 days from this day failing which Complainant shall have liberty to put this order into execution.

Let a plain copy of this order be given to the parties free of cost as per CPR, 2005.

Dictated and Corrected by me

President

Member                                                                                  President