DISTRICT CONSUMER DISPUTES REDRESSAL FORUM  PALAKKAD

Dated this the  17^th   day of July 2017

Present   : Smt.Shiny.P.R. President

               : Smt.Suma.K.P.  Member                                 Date of filing:  10/12/2015

               : Sri.V.P.Anantha Narayanan, Member

                                                      (C.C.No.187/2015)       

Devadas

S/o Swaminathan,

Vishnukripa House,

Panamthodika, Maruthukaavu,

Thannissery (PO),

Palakakd 678 501                                           -        Complainant

 V/s

1.  Dr.Rajesh Radhakrishnan                           -       Opposite party

    Eye Specialist,

    ‘Adithya Kiran’,

      Eye Care Centre,

      D.P.O Road, Palakkad

2.  Smt.Sulekha

      Duty Nurse, Pharmasy,

     ‘Adithya Kiran’,

      Eye Care Centre,

      D.P.O Road, Palakkad

    (Town South Police Station Limit)

O R D E R

By Smt.Suma.K.P. Member

The case of the complainant is that he approached 1^st opposite party on 03.05.2015 for his eye disease at Adithya Kiran eye care centre and on 05.06.2015 the 1^st opposite party prescribed eye ointment and delivered skin ointment instead of it which resulted in irritation and burning sensation in his right eye.  On 10.06.2015 because of the acute pain in his eye he approached Dr.Muralidharan, Eye Specialist and he opined that the right eye has burns because of the application of the medicine and there after he approached Aravind Hospital on 01.07.2015 for treatment.  He also complained it before Town South Police Station on 09.06.2015 and further complained it before Drugs Inspector on 15.06.2015 and produced the prescription and bills before him along with the complaint.  The opposite party’s where summoned before the Town South Police Station and they under took in writing that in case of any adverse effect due to the application of the medicine, it will be compensated by them.  According to the complainant he sustained injury and continues to have disability which impairs his work.  He claims an amount of Rs.15,000/- as medical expenses, Rs.15,000/- for loss of earnings and Rs.4,00,000/- for decreased vision. 

Opposite parties entered appearance upon notice from the Forum, and filed their respective versions.  Opposite party 1 filed version as follows. 

The complainant approached him with the complaint of blurred vision and intolerance to light and he has prescribed standard medicines including Herperax eye ointment as per pharmacological guidelines.  He had history of treatment with topical anti biotics, anti viral and artificial tears before consulting him.  He was noted to have Viral Keratitis (Epithelial and Stromal) in the right eye.  On 02.05.2015 the complainant had consultation with the 1^st opposite party and systematic examination of right eye revealed healed Keratitis with persisting stromal scar.  He was found symptomatically better and hence earlier prescription of Dexoren  S and Herperax eye ointment were tapered off and advised review on 02.06.2015.  The complainant reported on 05.06.2015 with complaints of foreign body sensation, right eye.  He had stopped the medication without reviewing on 02.06.2015.  On examination he was noted to have re- activating in filtrate and pannus with moderate dry eye.  On the basis of clinical examination findings, he was prescribed Herperax eye ointment with Loteprednol drops (right eye) with artificial tears both eyes.  On 09.06.2015 the complainant reported with complaint of burning sensation alleging that he was given skin ointment instead of eye ointment.  But on examination there were no significant findings in the eye or any side

effect/adversity by the alleged application of skin ointment.  On confirmation of the medicine stock, it revealed that the medicine supplier provided Herperax skin ointment instead of Herperax eye ointment ordered by the 1^st opposite party, and it was gone unnoticed as on the outer cover of the carton it is only mentioned as Herperx ointment and the word skin was not mentioned.  In fact on 09.06.2015 when the complainant reported with complaint of burning sensation.  Opposite party had examined him thoroughly and no significant finding was made.  The medicine were supplied by the 1^st opposite party in his room.  There is no deficiency in service, negligence or carelessness on the subject matter and has the opposite party deals with only eye diseases, the supply by the pharmaceutical suppliers of skin ointment instead of eye ointment went unnoticed. 

The 2^nd opposite party filed version stating that she is the unnecessary party to the proceedings.  The 2^nd opposite party is a receptionist under the 1^st opposite party and is not handling any medicines prescribed by the 1^st opposite party of other wise.  It is the Doctor who delivers the prescribed medicine kept in his room across the table to the patients.  The 2^nd opposite party used to pack those medicines and hand over to the patients if it is only asked.  The complaint has not disclosed the role of the 2^nd opposite party specifically.  The 2^nd opposite party has nothing to do with the subject matter and she is not a duty nurse or pharmacist in the said clinic.  Her duty is only to serve the patient as a receptionist by giving token and assisting them as required.  Hence the complaint has to be dismissed as against 2^nd opposite party. 

The complainant and the opposite parties filed their respective Chief Affidavits.  Complainant was cross examined as PW1. 1^st Opposite party was also cross examined DW1.  Ext.A1 to A5 and X1 was marked from the side of the complainant.  Ext.B1 & B2 was marked on the side of 1^st opposite party. 

The following issues that arises for consideration are.

1.Whether there was any negligence on the part of 1^st opposite party in supplying medicine to the complainant?

2.Whether the complainant had suffered due to the act of 1^st opposite party ?

3.Whether there is any deficiency of service from the part of opposite party ?

4.If so what are the relief and cost?

Issue No.1, 2,3 & 4

We have perused the documents as well as affidavits filed by the

parties.  Admittedly a mistake was committed by issuing Herparx skin ointment instead of Herparx Eye Ointment.  The circumstances under with it happened is also explained by the 1^st opposite party.  The negligence is the standard duty of care.  1^st opposite party had submitted that the medicine supplier supplied medicines with writings on the carton as Herparx ointment.  Neither the word eye or skin was mentioned in the carton.  The doctor did not mentioned specifically went through the carton.  As such, the medicine given to the complainant was unnoticed.  According to opposite party 1 in ordinary course of business Doctor happened to take it as Herparx eye ointment since he was conducting an eye clinic.  It was a bonafaid mistake and not a negligent act.  During cross examination the DW 1 had deposed that “GXp `mKs¯ kvIn¶n\p AkpJw h¶mepw Cu Hmbnâvsaâv sImSp¡mdp­v.  km[mcW kvIn¶n\pÅ acp¶v I®n D]tbmKn¨m sNdnb AkzØX D­m¡pw.  F{X t]ÀsktâPv F¶v ]dbm³ ]änÃ.  slÀ¸dmIvkv kvIn³ Hmbnâvsaâv I®n D]tbmKn¨m sNdnb \oäepw Fcn¨epw D­mIpw”.  During re-examination he had further stated that “medicines eye ointment \v 3 % Dw skin ointment \v 5 % Dw BWv.  Htc tImwt]mknj\nemWv”.  The decree of care required in different situation will obviously vary.  The opposite party 1 Doctor had himself admitted that the complainant will have difficulties while applying skin ointment, it can be construed that there was negligence on the part of 1^st opposite party in issuing Herparax skin ointment instead of Herparx eye ointment to the complainant.  The chemical composition of Herparx eye ointment and skin ointment are one on the same according to opposite party 1.  The variation is about the percentage of the chemical.  It very slightly varies from eye ointment to skin ointment.  According to the 1^st opposite party the application of skin ointment did not cause any harm to the eye and it will cause only burning sensation and eye watering.  Here the complainant has also suffered irritation and difficulties due to the application of skin ointment.  The complainant had consulted various other eye specialists due to the above difficulties.  But the prescription issued from another doctors was not produced by the complainant before the Forum, so as to assess the gravity of the sufferings Ext.A1 is the report issued from Aravind Hospital which does not reveal about any damages caused to the right eye as claimed in the complaint.   Since there is no evidence to the effect that the complainant had suffered damages as stated in the complaint it is viewed that the complainant had not suffered as explained due to the application of the above ointment.  Issues answered accordingly. 

          The doctor ought to have checked the carton supplied by the medicine supplier before issuing the medicine to the patients.  It is admitted that the doctor did not specifically went through the carton.  As such he was mislead by the medicine supplier and the medicine happened to be given to the patient was unnoticed of the fact.  This was the negligence on the part of the opposite party 1^st Doctor.  Before the supply of medicine he ought to have checked the carton specifically and make sure that the medicine supplied to the patients is of correct composition and specifications.  He could not wash of his hands by shifting the liability upon the medicine supplier.  Being a Doctor decree of care required in supplying the medicine directly, requires most care.  In the light of the above discussions it is viewed that there is negligence on the part of the Doctor by supplying skin ointment instead of eye ointment.  The above act of the opposite party amounts to deficiency of service on his part.  The above issues answered accordingly. 

          In view of the above findings, we direct the 1^st opposite party to pay Rs.3,000/- (Rupees three thousand only) as medical expenses and Rs.5,000/- (Rupees five thousand only) as compensation for the mental agony and sufferings of the complainant.  We also direct the opposite party 1 to pay Rs.2,000/- (Rupees two thousand only) as cost of this proceedings.  The 2^nd opposite party is exonerated from the liability, since no relief is claimed against her.

          The afore said amount shall be paid within one month from the date of receipts of this order failing which complainant will be entitled to realize interest at the rate of 9% p.a from the date of order till realization. 

Pronounced in the open court on this the 17^th day of July 2017.

                                                                                                                               Sd/-

                     Shiny.P.R.

                      President 

                           Sd/-    

                      Suma.K.P.

                      Member

          Sd/-

    V.P.Anantha Narayanan

                    Member