D.O.F:20/01/2011
D.O.O:17/02/2023
IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KASARAGOD
CC.No.15/2011
Dated this, the 17th February 2023
PRESENT:
SRI.KRISHNAN.K :PRESIDENT
SRI.RADHAKRISHNAN NAIR.M : MEMBER
SMT.BEENA.K.G : MEMBER
Smt. Laly Sebastian, aged 40 years,
W/o Sebastian,
Agriculturist, :Complainant
KakkaParambil,
Odyanchal, Pademaruth P.O,
Hosdurg Taluk
(Adv. U.S. Balan& Anjali)
And
Dr.Saju Thomas,
MBBS; M.S. (Ortho), (D.Ortho),
Consultant, Orthopaedic Surgeon, : Opposite Party
Mass Complex, Ice land Building,
Near Bus Stand, Kanhangad- 671315
(Adv. Mahesh.M)
ORDER
SRI.KRISHNAN.K :PRESIDENT
The Complaint filed under section 12 of Consumer Protection Act.
- Facts of the case in short:-
The complainant having right shoulder pain, consulted opposite party doctor in his clinic at Kanhangad on 12/06/2009. Medicine is given by opposite party for ten days by prescribing medicines SULPHASALAZINE, INDOMETACIN and OMPERAZOLE. Uneasiness developed and hence medicine stopped again consulted opposite party on 17/06/2009, advised to continue SULPHASALAZINE for 20 days.
- From 28/06/2009 she suffered severe oral erosion with difficulty in swallowing and redness in both eyes, admitted in Mansoor hospital as an inpatient. Complication arose on whole body then opposite party referred to Medical College Pariyaram for further treatment on from 30/06/2009.
- The complainant was referred to IC Unit. Her colour of skin changed with rashes in eye brows and face became too ugly due to swelling and bloodish colour, she constrained to lie on banana leaf. She was informed that complication arose due to gross- negligence, ill- treatment and deficiency in service of opposite party.
- Without conducting medical tests medicine is prescribed in the required dosage. She is able to take only liquid food due to reaction of medicine. She filed the complaint claiming pecuniary damages- special damages and general damages limited to Rs.20,00,000/- (Rupees Twenty Lakhs only)
- For opposite party, Advocate Mahesh filed Vakalath and written version contending that opposite party treated the complainant with utmost care and caution no negligence, compensation claimed is without any basis. The opposite party is an orthopedic surgeon having consultation room at Mass Complex Kanhangad. He admit that complainant consulted at his clinic on 12/06/2009 with severe pain on right shoulder. Patient was given medicines namely SULPHASALAZINE. Again came on 17/06/2009, informed inability to come on 22/06/2009, told that she has good relief thus prescribed SULPHASALAZINE 1gm,1-0-1. The opposite party was informed patients admission at Mansoor Hospital, examined by opposite party referred to Pariyaram medical college for expert care.
- The complainant filed chief affidavit, produced documents marked as Ext.A1 to Ext. A31 series. A1 is the treatment slip issued by Mansoor Hospital, Letter issued to higher centre is Ext.A2, Ext.A3 is discharge summery from Pariyaram medical College. Ext.A4 to A16 Opposite Party records, Ext.A17 Lab test results, A18 Medical Bills, A19 Cash Bills, A20 Lab reports, A21 Cash bills and A22 Photograph of the Complainant in CD.
- The complainant produced additional documents marked as Ext.A23 to A31. Ext.A23 is cash bills 18 in number, A24 Opposite party records, A25 investigation records, A26 lawyer notice copy, A27 cash bill, A28 opposite party records, A29 series are investigation report is marked, Ext 30 series prescription and Ext 31 bills. The complainant filed IA.138/2011 to ament Complaint. It is allowed. Additional written version is filed. The Complainant was examined as PW1and also witnesses Pw2 to 5 from her side. The opposite party was examined as DW1.
The complainant and opposite party filed detailed argument notes with citations.
Following points arise for consideration in the case.
- Whether complainant suffered any complications in her health due to medical negligence on the part of opposite party during treatment as claimed in the complaint?
- Whether there is any deficiency in service of opposite party in treatment by opposite party? Whether complaint is entitled for any compensation? If so for what reliefs? All points discussed together for convenience.
- The definite case of complainant is that on 12/06/2009, she consulted the opposite party at his clinic complaining right shoulder pain- opposite party prescribed medicines SULPHASALAZINE, INDOMETACIN and OMPERAZOLE. After taking medicine for 5 days patient developed uneasiness. She consulted on 17/08/2009. The opposite party instructed to continue SULPHASALAZINE for 20 days increasing dosage to 1-0-1. On 20/06/2009 severe erosions in mouth with difficulty in swallowing and redness developed in both the eyes with spot in body. The complainant got admitted in Mansoor hospital on 28/06/2009 andtreated inpatient, later referred to Pariyaram Medical College and admitted there. Reported as drug reaction.
- The opposite party has got specific case- opposite party admits that complainant consulted him at his clinic on 12/06/2009 with complaint of right shoulder pain. Patient did not give history of drug allergy. After investigation, medicines including SULPHASALAZINE is prescribed. She came on 17/06/2009 reported good relief, medicine continued for 10 days. The opposite party also admitted the admission of patient on 28/06/2009 at Mansoor hospital, and was referred to Pariyaram for expert care. The medical negligence attributed to opposite party is that there is no lab investigations to know the cause of drug reaction, no investigation after starting medicine. Further grievance is that opposite party violated Indian Medical Council professional conduct regulations 2002 in not providing medical records within 72 hours. So consultation and prescribing of particular medicines and complications to the patient is developed and the same is admitted. Though prescription is not produced despite allowing of petition filed by opposite party in view of admission of prescribing SULPHASALAZINE medicines, no adverse inference is drown against the complainant
10. PW2 Dr. Bindu Rani deposed that she examined PW1 on 30/.6/2009. She had shoulder pain PW2 was re-examined as per order in IA-92/2022. She says that before giving SULPHASALAZINE, lab test is prescribed up on to conditions of patient. There are indications and depending on the patient’s condition doctor can decide. Pw3 is Dr..M.M. Bhat, Dermatologist, Kanhangad. Who referred the patient to Pariyaram Medical College. Pw4 is the husband of complainant who deposed that there was failure to exercise reasonable care before prescribing SULPHASALAZINE, lab test must have been done. Further after medicine given, continuous monitoring including blood count on regular basis must be followed. Pw 5 Padmanabha Shenoy says that he has treated the complainant on 2018-2019 she was having Rhumatroid Arthretis in order to stop allergy medicine is prescribed. In page 2 he says that before prescribing SULPHASALAZINE, blood test to be done to diagnose Rhumentroid Arthraitis. Regular blood test are to be conducted to know the medicine affected kidney or liver. Absolutely no evidence either documentary or oral to convince that really lab test or such other tests are advised or conducted prior to prescribing medicine SULPHASALAZINE. Pw5 in his evidence deposed that he has treated the complainant during 2018. She had Rhumatroid Arthraitis. He prescribed medicines A19 series namely SULPHASALAZINE. The medicine is to stop allergy. Blood test is to be done for diagnosis. If allergy continues after one month it should be stopped. Regular blood test is to be conducted to know whether medicine affected kidney or lever.
11. In cross examination he deposed that Rhumatroid Arthraitis will be diagnosed by symptoms in the patient and by physical examination. After two or three weeks blood test will be conducted to see whether it affected kidney. This is a common drug used for the first time treatment of patients of Rhumatroid Arthraitis.If medicines are stopped Rhumatroid Arthraitis will re occur within three or four months. It can cause dryness in eyes.
12. Pw3 Dr.M.M. Bhat is examined to prove Ext.A2 refer letter. She consulted the doctor on 29/06/2009. He says that he had not treated the patient before or after the date. He suspects that decease might have been due to consumption of SULPHASALAZINE. It is true that a patient consuming SULPHASALAZINE will be having drug reaction or not by routine blood test, it is true that it is a safer drug in comparison. In re-examination suggestion is made that he has no knowledge regarding the medicine which he denied.
13. There is no records to show relating to any lab investigations done prior to prescribing the medicine or administered medicine in the presence of doctor or observed to know any drug related reaction there to the patient. According to opposite party drug reaction is not medical negligence. As per complainant medical records supplied after two years. Due to allergy on taking medicine pigmentation and sufferings continue.
14. The principle in 2002(3) CPR 258 show that “if any medicine is given without doing test for adverse effects to the patient then it is considered as medical negligence”. Complainant draws attention to the testimony of Dw2 doctor that he suspect that the said decease might have been caused due to consumption of SULPHASALAZINE tablet. It is settled law that once initial burden is discharged by complainant onus shift on to the hospital or attending doctors. Then burden is on hospital or doctors to satisfy that there was no lack of care or diligence. So it is evident that necessary lab tests are required prior to advice of SULPHASALAZINE medicine. No records of lab test advise or its test results. Evidence of Dr. Bindu Rani shows that blood routine test, liver function test to be done before advising SULPHASALAZINE medicine.
15. Pw5 Dr. Padmanabha Shenoy, in chief examination, says that he has treated the patient in 2008. Blood test has to be done before prescribing SULPHASALAZINE regular blood test has to be done to know whether medicine has affected kidney or liver.
16. The opposite party there by admit in box that patient consulted with severe shoulder pain. He admits that he is bound to keep all records of patient, that he has not mentioned about the test in evidence that he has not produced records to prove investigation details of the patient. He also admitted that he prescribed dose of SULPHASALAZINE of 1gm by increasing dose from the previous occation.
17. A person who holds himself out as ready to give medical advice or treatment owes the patient certain duties namely a duty of care in deciding whether to undertake the case is a duly of care in deciding that treatment to give, and a duty of care in his administration of that treatment. To establish liability on that basis, it must be shown that there is usual and normal practice, blood test and such other lab tests prior to prescribing medicine, that opposite party has not adapted it and that the course in fact adopted is one no professional man of ordinary skill would have taken, had he been acting with ordinary care ( Martine F D’souze v MohamadIshfaq, AIR 20019 sec 2045)
18. The doctor and the hospital at every stage should communicate the exact line of treatment that has been administered (Smt. Savita Ganga U Director Nachal heart institute( 2004 8 sec 56)
19. The Apex Court in Malay Kumar Ganguly Vs Dr. Sukumar Mukherjee and other (2009) 9 SCC 221 held that negligence or medical negligence is an omission to do something which ought to have done or an act of commission which ought not have been done in law. No doubt, the deficiency in service cannot be alleged without attributing fault, imperfection, short coming and in adequacy in quality and nature and manner of performance which is required to be performed by a person in pursuance of a contract or otherwise in relation to any service.
20. No prescription should ordinarily be given without actual examination. The tendency to give prescription over the telephone, except in an acute emergency, should be avoided.
a) A doctor should not merely go by the version of the patient regarding his symptoms, but should also make his own analysis including tests and investigations where necessary.
b) A doctor should not experiment unless necessary and even then he should ordinarily get a written consent from the patient.
c) Full records of the diagnosis, treatment etc should be maintained
The essential requirement to prove negligence as recognized are these,“ duty” “breach” and resulting damages.
21. Negligence is the breach of a duty caused by omission to do something which is a reasonable man guided by those considerations which man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which complaint prudent and reasonable man would not do.
22. The Apex court in Nizma’s institute of Medical Science Vs Prasanth S Dhananka and others (2009) 6 SCC 1 held that once the claimant discharges the initial burden by making at a case of negligence, then onus shift on to the hospital or doctor to satisfy the court that there was no lack of care or diligence.
23. In the given case, the complainant successfully put up the highly probable case of administering the medicine SULPHASALAZINE and in such case, the onus is shifted on the opposite party to show that care had been taken as required under the medical protocol or medical procedure that the blood test and such other lab tests are conducted to know its reactions.
24. The opposite party did not give any reasons why there were failures in his part to advice to undergo blood test and lab tests before prescribing the medicine. He did not even state anything as to why he failed to extend the best possible treatment to the complainant to prevent the after affects. As discussed above under the Doctor- Patient relationship and also other medical ethics it is the bounden duty of the doctor to give the best possible treatment, which is un avoidably required as a last resort. Further it is also the bounden duty of the opposite party to furnish adequate information to the patient and his party so as to enable the patient and his party to make a balanced judgment.
25. Accordingly, we hold that there is deficiency in service and negligence on the part of the opposite party thereby resulting in medical negligence.
26. The Apex court in state of Haryana and another Vs Jasbir Kaur and other (2003) 7 SCC 484 held that measure of damages cannot be arrived at by precise mathematical calculations.
27. That the aggrieved person should get that sum of money, which would put him in the same position if he had not sustained the wrong. It must necessarily result in compensating the aggrieved person for the financial loss suffered due to the extent, the pain and suffering undergone and the liability that he/ she would have to incur due to the disability by the event.
28. The Apex court in Balram Prasad Vs KunalSaha and others (2014) 1, scc 384 held that 117. Under the heading loss due to pain and suffering and loss of amenities of the wife of the claimant.
29. By considering the nature of amenities lost and injury and pain in the particular case, the court must assess the effect upon the particular claimant. In deciding the appropriate award of damages, an important consideration is how long he be deprived of those amenities and how long the pain and suffering has been and will be endured. If it is for the rest of the life, the court will need to take into account in assessing damages, the claimant’s age and his expectations in life.
30. Keeping in view of the above decisions of the Apex Court as to the amount of compensation we are of the considered view that “Just” compensation under different heads in the present complaint case are here under;
1. Loss of income during treatment allowed Rs. 50,000/-
2. For medical treatment allowed Rs. 65,000/-
3. Future medical treatment claim disallowed. -
4. Nursing attendant, extra nourishment disallowed. -
5. Loss of amenities allowed Rs.25,000/-
6. Pain and suffering allowed Rs.40,000/-
7. Continuing disability claim is disallowed as no evidence -
8. Claim for diminution of enjoyment of marital life disallowed -
9. Total Compensation Rs.1,80,000/-
10. Cost of litigation Rs. 15,000/-
Therefore, a total of Rs.1,80,000/- (Rupees One Lakh Eighty Thousand only) awarded towards the compensation in favor of the complainant. The opposite party is liable to pay the said compensation with interest at 8% per annum from the date of complaint till payment along with cost of litigation fixed at Rs.15,000/- (Rupees Fifteen Thousand only) payable within a period of 30 days from the date of receipt of the copy of this judgment.
The present complaint case is allowed to the extent as above.
Sd/- Sd/- Sd/-
MEMBER MEMBER PRESIDENT
Exhibits
A1: Treatment slip
A2: Letter issued to higher centre
A3: Discharge summary
A4 to A16 are Out-Patient records
A17: Lab test results, 34 in numbers
A18: Medical Bills
A19: Cash Bills
A20: Lab reports
A21: Cash Bills
A22: Photograph of the complainant in CD
A23: Cash Bills 18 in number
A24: Out-Patient records
A25: Investigation records
A26: Lawyer notice copy
A27 series are Cash Bills
A28: Out- Patient records 2 in number
A29: Investigation report
A30: Series prescription
A31: Bills
X1 Series are Case record
Witness Cross examined
PW1: Lali Sebastian
PW2: Dr.Bindu Rani. S
PW3: Dr. M.M. Bhat
PW4: K.M. Sebastian
PW5: Dr.PadmanabhaShenoy
DW1: Dr.Saju Thomas
Sd/- Sd/- Sd/-
MEMBER MEMBER PRESIDENT
Forwarded by Order
Assistant Registrar
Ps/
