Haryana

StateCommission

A/715/2014

Dr.Sandeep Jain - Complainant(s)

Versus

Dr.Rajender Siwach - Opp.Party(s)

10 Nov 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

HARYANA PANCHKULA

                  

                                                First appeal No.715 of 2014

Date of the Institution: 08.08.2014 and13.08.2014

Date of Decision: 10.11.2016

 

1.      Dr.Sandeep Jain, Malabar Medical Centre, Opp. Mahavir Park, Civil Lines, Rohtak.

2.      United India Insurance Company Ltd., Regional office SCO 123-124, Sector 17-B, Chandigarh through its duly constituted Attorney Smt.Sunita Sharma, Dy. Manager.

…..Appellants

Versus

1.      Dr.Rajender Siwach S/o Sh.Ganga Bishan, R/o H.No.17/3 Duplex, M.D.U.Campus, Rohtak.

2.      Proprietor, Malabar Medical Centre, Opp. Mahavir Park,Civil Lines, Rohtak.

…..Respondents

 

CORAM:    Mr.R.K.Bishnoi, Judicial Member

                    Mrs. Urvashi Agnihotri, Member

 

Present:-    Mr.P.S.Saini, Advocate for the appellant.

                   Mr. Karan Bhardwaj, Advocate counsel for the respondent.

 

O R D E R

R.K.Bishnoi, JUDICIAL MEMBER:

          It was  alleged by the complainants that  their son namely Dishant complained of fever on 29.03.2006  and was given treatment  by Dr. Ravi Mohan.  On 02.04.2006 he felt uneasy and was taken to O.P.No.2-Malabar Meidcal centre (In short “Malabar”).  As  Dr.Ravi Mohan was out of station,   Dr.Sundeep Jain (Physician)-O.P.No.1 attended him at Malabar and diagnosed as a case of “Typhoid”.  He administered injection of voveran and two injections of Monocef,  whereas injection of voveran was not mentioned in documents. He asked them to bring four injections of monocef.  After injections Dishant started shivering and went into COMA. Dr. Shrivastav  also examined him and scolded Dr.Sundeep Jain and advised them to take Dishant to P.G.I.M.S., Rohtak.  No anti reaction injection was given. At P.G.I.M.S., Rohtak he was diagnosed as a case of Cerebral Malaria. Doctor at P.G.I.M.S., Rohtak found it a case of general tonic chronic seizure (G.T.C.S.) and that some injections (not known) were administered. Dishant was suffering from cerebral Malaria and ultimately he died on 03.04.2006 due to negligence on the part of O.Ps.  As per medical literature monocef injections could be administered  taking into consideration it’s adverse effects  by fixing the dosage as required in renal insufficiency. Whereas Dr.Sundeep Jain gave injection in reckless manner and without diligence. They asked O.Ps. to pay compensation, but, without any result. Hence the complaint.

2.       Only O.P.Nos.1 and 3 filed separate replies controverting the averments of the complainants.  It was alleged by O.P.No.1 that Dishant came to Malabar on  02.04.2006 at about 08.45 A.M. with history of fever since one week which was moderate to high grade and associated with nausea and occasional vomiting.  As per provisional diagnose it was a case of Enteric/Viral Fever and that is why injection monocef of 2 gm in I/V Drip in one hour was given.  As per medical literature side effects of monocef were headache/dizziness etc. reported in less than 1% cases.  He had one episode of GTCS around 11 Am which lasted for 3-4 minutes and recovered without  any further treatment. Dr.S.C.Srivastva also advised same treatment.  Injection eptoin 300 mg. was given to him and was referred to P.G.I.M.S.,Rohtak in stable condition for further management at about 12.30 noon. Enteric/typhoid fever could be diagnosed by  blood culture requiring 48-72 hours.  He was not administered injection voveran. Dishant was not diagnosed as a case of Malaria at P.G.I.M.S., Rohtak.  There was no negligence on  his part and the treatment prescribed in medical literature was given.  Objections about jurisdiction, locus standi, accruing cause of action, concealing true facts etc. were also raised and requested to dismiss the complaint. 

3.       O.P.No.3 also supported the averments raised by O.P.No.1 and requested to dismiss the complaint qua it.

4.       After hearing both the parties, learned District Consumer Disputes Redressal Forum, Rohtak (In short “District forum”) allowed the complaint vide impugned order dated  07.07.2014 and directed as under:-

“we hereby direct the opposite party No.1 to pay a lump-sum compensation of Rs. 500000/- (Rupees Five lacs only) on account of physical and metal agony, pain & sufferings, loss of life of complainants’ son to the complainant maximum within one month from the date of decision and opposite party No.3 being the insurer of opposite party No.1 will indemnify opposite party No.1 in accordance with contract of insurance policy. Complaint is disposed of accordingly.”

5.       Feeling aggrieved therefrom, O.P.Nos.1  and 3 have preferred this appeal.

6.       Arguments heard. File perused.

7.       Learned counsel for the appellants vehemently argued that  as per version of the complainants it is clear that Dishant was receiving treatment from Dr. Ravi Mohan and had not come to  O.P.No.1 for the first time.  As Typhoid requires 48 to 72 hours, so systematic treatment was given.  Complainant was having fever since 4-5 days that is why monocef injection 2 mg was given which is a prescribed doze for a child.  It was never ascertained that he was suffering from cerebral malaria. Dr.H.K.Aggarwal Senior Processor medicine of P.G.I.M.S., Rohtak stated that tests were conducted at Malabar and as per record he was not administered injection Voveran. He no-where stated that there was any negligence on the part of the O.P.No.1.  Dr. Ravi Mohan tendered his affidavit Ex.RW1/B in evidence and stated that he was having moderate to high grade fever since week with abdomen pain.  As per prescription slip, it was a case of  Enteric/Viral Fever.  Cause of death in this case was illness and not treatment given by O.P.No.1.  Complainants have miserably failed to show that there was any negligence on the part of O.P.No.1 or that injection monocef proved fatal. This injection was given keeping in view the symptoms of the patient. As there was no improvement he was discharged from Malabar within 3-4 hours.  Learned District Forum wrongly came to conclusion, without any expert opinion, about negligence, whereas O.P.No.1 had followed the standard procedure of treatment. So, impugned order be set aside.  In support his arguments he placed reliance upon the opinion of Hon’ble Supreme Court expressed in Chandan Singh Vs. National Insurance Co. ltd. & Anr.  And opinion of Hon’ble National Commission expressed in Mam Chand Vs. G.S.Mangat of Mangat Hospital 2004 (2) CLT 269.

8.        This argument is of no avail.  It is opined by Hon’ble Supreme Court in V.Kishan Rao Vs. Nikhil Super Speciality Hospital & Another 2010 (4) CLT 256, Minor Marghesh K.Parikh Vs. Dr.Mayur H.Mehta 2010 (4) CPJ 50,  that a claim petition cannot be rejected only on the ground that expert witness was not examined to prove negligence of doctor.  If prima facie it appears that there was negligence on the part of the doctor then he could be held liable on this ground and  if  patient was shifted to any other hospital in critical condition then Dr. could be held liable on this ground. In V.K.Krishan Rao case (supra) a patient was admitted in hospital and subject to certain tests but malaria was not diagnosed and was treated for typhoid though tests of Typhoid was also found negative, then doctor is to be presumed as negligent.  The present case is squarely covered by this opinion.  As per facts mentioned above, it is clear that complainant was not suffering from Typhoid, but, even then O.P.No.1 gave him injection Monocef which is generally given for treatment of Typhoid. This injection is given in case of bacterial infection and cannot be given without proper tests or investigation.  This injection is not given in routine. Dr. H.K.Aggarwal no-where stated before District Forum that this injection can be given in routine or if any person is suffering from cerebral malaria.  Relevant porition of statement is as under:-

“The possibilities of sudden death in such a situation could be  part of primary disease process including acute cerebral malaria or viral enchaphalitys.  However, the stay of the patient has been very short at PGIMS, Rohtak and patient presented with history of fever hypotension, unconsciousness in the emergency department.”

Dr. Ravi Mohan also no-where stated in his affidavit Ex.RW/1B that Monocef can be given in routine manner. From the perusal of referral slip Ex.P-5 it is clear that when condition of Dishant deteriorated he was immediately referred to PGIMS, Rohtak i.e. in that very city.  As per Ex-P-I he was diagnosed as a case of cerebral malaria also.  As per death certificate Ex.P-12 the cause of death was raised TCT and cerebral Malaria. It shows that O.P.No.1 gave treatment of Typhoid without proper check-up and when  case went out of the hand patient was referred to PGIMS Rohtak. It was clear negligence on his part. It may be mentioned there that in such like cases principle of Res ipsa loquitur is applicable. When prima facie complainant has succeeded to prove that there was negligence on the part of the O.P.No.1 then it was his duty to prove otherwise, which he has failed to do. So these arguments are of no avail. Appellants/O.Ps. cannot derive benefit from the cited case laws because in those cases Doctor followed proper procedure for treatment whereas it is not so in this case.  The findings of learned District forum are well reasoned based on law and facts and cannot be disturbed.  Resultantly appeal fails and the same is hereby dismissed.

9.  The statutory amount of Rs.25,000/-  deposited at the time of filing the appeal be refunded to the appellants against proper receipt and identification in accordance with rules.

 

November 10th, 2016

Mrs.Urvashi Agnihotri, Member, Addl.Bench

R.K.Bishnoi, Judicial Member Addl.Bench

S.K.