Brief fact of this case is that, the complainant hadbooked  Sl.No.30 on 24.9.2023 at Pragati Medicine Store for an appointment of Dr.Piyush Ranjan Sahu, Dermatologist to consult with him for her skin disease. On the very day the Doctor prescribed an OCUPOL-D Eye Ointment and TAB-COVEL-10. The complainant was also asked the Doctor about the use of Eye ointment on the skin. The Doctor advised her to use the ointment two times a day and nothing to be worried whether it will apply inside or outside the eyes even if the infected area on her forehead as it is an eye ointment. The complainant hasapplied the ointment two times a day i.eat 2.00pm and 10.00 pm on the infected areas but in the next morning it was noticed that where the ointment was applied all the spots were swollen. Immediately the complainant contacted the Doctor and the Doctor also advised to stop applying the ointment as it was mild allergy and advised to continue the tablets. If needed the local doctor may be contacted for necessary treatment. When the complainant sent the photographs of the face, the doctor advised if worried then use Defcort-30mg tablet for five days. Basing on the emergency the complainant took an appointment with Medicine Specialist at Keonjhar and expressed the facts of disease. The Doctor told her that it was very severe allergy and prescribed medicines for early cure.The complainant contacted the Pragati Medicine Store over telephone but he told that we have no responsibility for your disease even the medicine store did not supply his mail ID to complain at Consumer Customer care.The complainant was harassed due to wrong medicine prescribed by Dr.Piyush Ranjan Sahu and sold by Pragati medicine Store for which caused mental agony and liable for compensation. Hence, the complainant prayed to the Hon’ble Commission to pass order to OP.No.1 to pay all the expenses made till now from 24.09.2023 and expenses to be made further if required. Rupees 2,00,000/- for wrong medicine and Rs.2,70,000/- for  mental agony and harassment with Rs.10,000/- for cost of litigation.

The complainant relies upon the following documents:

1. Photocopy of prescription of OP.No.1.
2. Photocopy of prescription of Dr.Niranjan Behera,Keonjhar.
3. Series of Photographs of swelling face of complainant.

• Under the above complaint the case was admitted and notice issued to Ops. The Op No.1 & No.2  appeared and filed their written version in detail separately. In his written version the OP No.1 stated that the complaint petition is not maintainable and the Hon’ble Court has no jurisdiction to entertain such case. The complainant is not a consumer as defined in the consumer protection Act 2019.So she is not protected by the said Act. The complaint case is bad for non joinder of necessary partyCentaur Pharma Pvt.Ltd. and proper party for complete adjudication of the dispute raised by the complaint petition. There is no negligence on the part of Dr. Piyush Ranjana Sahu Op.No.1 in rendering service to the complainant. The payment as fees to OP.NO.1by the complainant is also not established. So, OP.No.1 cannot be held responsible for the loss or injury caused to the complainant if any and no compensation can be awarded to the complainant. On dt.24.9.2023 Sunday the complainant Deepanjali Pradhan(24 years)female came to  OPNo.1 and with her request the OP.No.1 examined her after listening the detailed history of illness. On enquiry she confirmed that there was no prior drug sensitivity in her skin. Since the skin near the eyes extending from eyebrows, eyelids up to lid margins had been inflamed and there is possibility of skin ointment contaminating the eye. The OP.No.1 has advised her two medicines i.e. (1) OCCUPOL-D Eye Ointment(composition-Dexamethasone, Polymyxin-B sulphate & Chloramphenicol) and (2) Tab.COVEL-10mg(Levocetrizine dihydrochloride) to control the allergy. The OP.No.1 has preferred to use OCCUPOL-D Eye ointment in this disease because this ointment is of neutral pH and contained Dexamethasone which is having anti allergic property and he has communicated the patient verbally the cause of the selection of eye ointment.Further OCCUPOL-D Eye ointment is used to control allergic and infection. The cost of OCCUPOL-D Eye ointment is Rs.120/- as compared to the cost of the skin Cream MOMATE-F is Rs.312/- has also been clearly communicated to her. After receipt of telephonic message on 25.09.23 that the complainant applied ointment and her face was swollen. The OP.1 advised her not to apply the ointment and said her to continue the tablet COVEL-10mg. for early cure and further advised Tablet DEFCORT-30 and instructed to consult with doctor and asked to call him if needed.The allegation made in the complaint petition that she was in serious condition is totally false. The prescription on dt.26.09.23 of Dr.Niranjan Behera shows that it is a case of Contact Dermatitis due to use of Vermilion and he prescribed the medicine for mild allergy. Dr.Behera never stated or mentioned in the said prescription that due to application of OCCUPOL-D ointment, allergy happened.

In case of the complainant, the pre-existing local inflammation has been exacerbated(as per the complainant version) might be due to the various additive factors like use of vermilion, face wash, or many cosmetic products, food or any drug consumption/application. So, question of physical and mental torture to the complainant does not arise in this case. It is submitted that the absorption characteristics of skin and eye being similar, many physicians often use eye preparations on skin. Hence, the labelling “For OPHTHALMIC use only” does not imply it cannot be used on skin.It is an extension of the principle of “for external use only” implying not to be eaten or drunk.

The complainant has not filed any document in support of the consumer complaint showing any deficiency of service on the part of OP.No.1. The allegation of wrong medicine prescription, misbehaviour and torture is absolutely false. The complainant has not led any cogent and convincing evidence to substantiate her claim for compensation. As the OP No.1 has no negligence, the complainant neither averred the negligence on the part of the Dr.OP.No.1 and consequence of which the loss did not sustain nor she has placed any material to prove her case, she is not entitled to get any compensation. Hence, the complaint petition is liable to be dismissed with cost.

The OP relies upon the following documents:

1. No enclosure.

The OP.No.2 the proprietor of Pragati medicine Store in his written version stated that he has sold the medicine as per the prescription of the doctor and he has no role in this case. When the patient came before him  for her allergy he advised her to consult the doctor for further treatment.

            On the above complaint and written version filed by the parties this commission feels that the matter should be referred for expert opinion as per the questionary supplied by this Commission. Accordingly, on 02.03.2024 following questionnaire are sent for expert opinion to get appropriate answer.

1. Whether the skin specialist can prescribe eye ointment to a patient?
2. Whether Ocupol-DX eye ointment will make infection to eye after use in vermillion area and upper surface?
3. Whether Tablet Covel-10 used by patient will make infection in vermillion and eye surface area?
4. Whether prescribed Doctor has made any negligence in his treatment?
5. Whether use of vermillion, face wash or any cosmetic products, food or any consumption/ application can cause infections in the vermillion area so also in the area of eyelids/ Upper surface of eye?
6. Whether the ophthalmic preparation can be used over skin near the eye?

            In reply to the above questionnaire Dr.C.S.Srika, Professor & Head Dept. Of Dermatology,AIIMS,Bhubaneswar has communicated the following replies vide his letter No.6724 dt.28.03.2024 to this Commission.

1. Answer of question No.1 : Yes.
2. Answer of question No.2 : It does no cause any drug reaction. If at all it causes, it may cause allergy at the site of application, which is a remote possibility.
3. Answer of question No.3: It is an anti allergy drug which is used for reducing allergy.
4. Answer of question No.4: No negligence as per the photo that has been submitted to us for review.
5. Answer of question No.5: May cause in a sensitive patient.
6. Answer of question No.6: Yes.

On the above pleadings the following issues are framed to decide the case.

1. Whether the case is maintainable?
2. Whether any cause of action arises on this case?
3. Whether Ops have made any deficiency of service?
4. Whether the complainant is entitled to get any relief sought for.

FINDINGS

All the issues are inter-related to each other, so they are discussed jointly. In this case the complainanthas made allegations against the OP.No.1Dr.Piyush Ranjan Sahu and Proprietor Pragati Medicine Store OP.No.2 fornegligence in service to the complainant. The question is whether the Doctor has prescribed wrong medicine in her treatment. As per the compliance of the petitioner and written version filed by Ops this Commission feels that this matter should be referred to expert opinion. Six numbers of questions were put for clarification. Question No.4 which was important “Whether prescribed Doctor has made any negligence in his treatment? And the answer of this question is -No negligence as per the photo that has been submitted to us for review. “Apart from the photographs there was no other evidence was submitted by the complainant to prove her case. There was also another question which was put for expert opinion i.e question No.5- Whether use of vermillion, face wash or any cosmetic products, food or any consumption/ application can cause infections in the vermillion area so also in the area of eyelids/ upper surface of eye? And the answer of this question is - May cause in a sensitive patient. Other questions which were put for expert opinion are not supported to complainant. In this circumstances the OP.No.1 Advocate has filed a citation of Bombay Hospital & Medical Research Centre-Vs-Asha Jaiswal & others vide 2021(4) CPR 419(SC) Hon’ble Supreme Court clearly held that “ A doctor is expected to provide reasonable care which is not proved to be lacking in any manner, sole basis of finding of negligence against Hospital, is of res ipsa loquitur-Res ipsa is a rule of evidence-complainant had led no evidence of experts to prove alleged medical negligence except their own affidavits- experts could have proved if any ofdoctors in hospital providing treatment to patient were deficient or negligent inservice..The onus to prove medical negligence lies largely on the claimant and that onus can be discharged by leading cogent evidence.” Non-availability of an emergency operation theatre during the period when surgeries were being performed on other patients is not a valid ground to hold Hospital negligent in any manner(Para-26,27,35,36&37).In another citation of Hon’ble National Consumer Disputes Redressal Commission referring “Jacob Mathew’s case” vide J.N.Shori Multi Speciality Hospital &Anr-Vs- Krishna Lal and Anr. (2021(3) CPR15(NC) clearly held that “Negligence cannot be attributed to the doctor so long as he is performing his duty to the best of his ability and due care and caution. Merely because the doctor chooses one cause of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession”(Para-16). As per expert opinion OCCUPOL DX eye ointment which does not cause any drug reaction. If at all it causes, it may cause allergy at site of application, which is a remote possibility and TAB Covel-10 is an anti allergy drug which is used for reducing allergy. The expert opinion prepared by head of the Dept. Dermatology, AIIMS, Bhubaneswar goes in favour of OP.No.1 the prescribed Doctor. The complainant has not proved any medical negligence or deficiency of service against OP.No.1. So, she is not entitled to get any relief. The case is not maintainable at this stage.

ORDER

                 The present complaint case being devoid of merits is dismissed without any cost.