Date of Filing : 20.05.2022
Date of Disposal: 20.07.2023
DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION
THIRUVALLUR
BEFORE TMT. Dr.S.M. LATHA MAHESWARI, MA.,ML, Ph.D (Law) .…. PRESIDENT
THIRU.P.VINODH KUMAR. B.Sc., BL., …..MEMBER-I
THIRU.P.MURUGAN,M.Com.,ICWA(Inter)., B.L., ....MEMBER-II
CC. No.34/2022
THIS THURSDAY, THE 20th DAY OF JULY 2023
Mr.S.Jaya Ganesh,
S/o.Sankara Subbu,
No.154, Ranganayaki Street,
Pakkiam New Town,
Kakkalur, Thiruvallur. ……Complainant.
//Vs//
1.Karpagam Hospital,
No.28A, Kakkalur Road,
(Near Rakki Cinemas),
Theradi, Thiruvallur -602 001.
2.Dr.D.David, M.B.B.S., B.A.H.S.,
No.28A, Kakkalur Road,
(Near Rakki Cinemas),
Theradi, Thiruvallur 602 001.
3.Seveetha Medical Center,
Seveetha Nagar,
Thandalam, Chennai 602 105. ..........Opposite parties.
Counsel for the complainant : M/s.M.Udaya Bhanu, Advocate.
Counsel for the opposite parties 1 &2 : M/s.R.Ramesh Babu, Advocate.
Counsel for the 3rd opposite party : Mr.Arun Kannappan, Advocate.
This complaint is coming before us on various dates and finally on 28.06.2023 in the presence of M/s.M.Udaya Bhanu, counsel for the complainant and M/s.R.Ramesh Babu, counsel for the opposite parties 1 & 2 and Mr.Arun Kannappan, counsel for the 3rd opposite party and upon perusing the documents and evidences of both sides, this Commission delivered the following:
ORDER
PRONOUNCED BY TMT. Dr.S.M. LATHA MAHESWARI, PRESIDENT.
This complaint has been filed by the complainant u/s 35 of the Consumer Protection Act, 2019 alleging medical negligence against the opposite parties 1 & 2 in prescribing the tablet Zenoflex-OZ for the complainant’s abdominal pain resulting in allergic reactions along with a prayer to direct the 1st and 2nd opposite party to refund a sum of Rs.850/- towards consultation and pharmacy charges and to refund a sum of Rs.92,188/- incurred by the complainant towards the hospitalization at the 3rd opposite party hospital and to pay a sum of Rs.40,00,000/- towards compensation for the mental agony and hardship caused to the complainant and to pay a sum of Rs.1,00,000/- towards cost of the proceedings to the complainant.
Summary of facts culminating into complaint:-
It was the case of the complainant that on 15.01.2022 he had abdominal pain and hence he approached the 2nd opposite party attached with the 1st opposite party for consultation. The 2nd opposite party examined the complainant and recorded the vital signs as
- B.P.-Not recorded,
- Pulse -75mints (N),
- SPO2 -99%(N),
- Temperature -9T.1.F,
- Allergy –Nil.
The 2nd opposite party never enquired about allergy to the complainant. However, in the prescription it has been written as `Nil’. Even otherwise, the complainant was not allergic to anything till he met the 2nd opposite party. The 2nd opposite party prescribed tablets and syrup for five days. The 2nd opposite party was running a pharmacy in the hospital premises. As per the instruction of the 2nd opposite party, the complainant purchased the tablet from the pharmacy but no bill was given. It would amount to unfair trade practice as contemplated under Section 2(j) (vii) of the Consumer Protection 2019. The complainant as directed by the 2nd opposite party that he has taken tablet, the complainant developed injuries like bubbles all over his foot and bleeding wound all over the body, tongue, lips, throat, penis and anus. Further it was submitted that he was admitted into the 3rd opposite party hospital for better management on 20.01.2022 and the Doctors has diagnosed that the complainant was suffering from “Fixed Drug Eruption” shortly called “Drug Allergy”. The tablet Zenoflex-OZ was the cause for causing drug allergy to the complainant. It was further submitted that even at the time of admission into the 3rd opposite party hospital it has been clearly recorded that the “patient came with complaint of dark flat Lesions over B/C limbs, groin, lower limbs for three days. After successful treatment for the ailment along with a piles problem was discharged on 31.01.2022. Once again the complainant was admitted into 3rd opposite party hospital on 25.02.2022 for Lower Respiratory Infection and he was discharged on 01.03.2022. It was submitted that the tablet Zenoflex-OZ prescribed by the 2nd opposite party was manufactured by Manikind Pharma Limited. As per manufacturer guideline Zenoflex-OZ tablets contains active ingredient of Ofloxacine 200mg + Ornidazole 500mg. As per literature of ofloxacine, the medicine may cause serious skin reactions of blistering, peeling or loosening of skin, red skin lesion, severe acne or skin rash, sores or ulcer on the skin. Complainant never had an allergy to any antibiotic drug earlier. When the drug itself was causing potential danger to the patient, the 2nd opposite party ought to have taken extra precaution to prescribe this drug. Failure to take precaution amounts to deficiency in service. Medicine Zenoflex-OZ is caused for SJS and Doctrine of Res Ipsa Loquitor is applicable to the complainant case. Thus aggrieved by the act of the opposite parties the present complaint was filed for the relief as mentioned above.
The crux of the defence put forth by the opposite parties 1 & 2:-
The opposite parties 1 & 2 filed version disputing the complaint allegations contending interalia that the 2nd opposite party admits that the complainant came for a treatment on 15.01.2022 for abdominal pain, after proper examination of the patient all vitals were recorded including allergy. During the clinical examination the 2nd opposite party enquired about the drug allergies but the complainant stated that he does not have any drug allergy and the same was recorded in the prescription and also the complainant was advised to take USG scan for further evaluation and management. Tablets and syrups prescribed for five days with bonafide intention and those drugs were usually prescribed for the abdominal pain and it was antibiotic. The complainant approached the 2nd opposite party during the pandemic period and the payment was received through account transaction and the 2nd opposite party never denied the purchase of medicines from his pharmacy and all the transactions were accountable and it would not lead to unfair trade practice. The complainant had taken treatment on 15.01.2022 and as per his allegations he had further treatment in the 3rd opposite party hospital on 25.01.2022. From 15.02.2022 to 20.01.2022 no intimation or consultation regarding the drug allergy intimated to the 2nd opposite party. It was usual that if any allergy caused to patients the immediate advice was to stop the said drug. Complainant never made any intimation nor consulted and submitted the USG scan report to the 2nd opposite party. Posterior fissure in ano was not revealed and also the painless growth in the perianal region for the past one year. The complainant came to hospital for abdominal pain alone. During the examination in the 3rd opposite party it was recorded that the complainant was conscious, oriented and the vitals were normal and few hyperpigmented tender patch found in B/L hands feet, Groin and also few erosions noted over lips and oral cavity. The clinical examination of the 3rd opposite party reveals clearly that the complainant never had any potential danger. Epidermasnecrolysis and Stevens Johnson syndrome which was stated SJS and Ten would be side effects for approximately 6 cases per million. The above prescribed medicines and antibiotics were usual in the medical practice for the abdominal pain. Hence the 2nd opposite party prescribed the same for the above complaints on a bonafide intention. The 2nd opposite party was summoned by the Medical Council for the complaint and had given his explanation in writing. Proper treatment was given for the abdominal pain but the complainant suppressed the other ailment to him during the examination. Thus there was not deficiency in service they sought for the complaint to be dismissed.
The crux of the defence put forth by the 3rd opposite party
The 3rd opposite party was a Medical College & Hospital providing exclusive medical care to the people in a compassionate manner. The complainant took treatment on 20.01.2022 in 3rd opposite party Hospital for drug allergy. After treatment, there was betterment in his health condition and he was discharged on 31.01.2022 with good conditions. There was no relationship between the 1st and 2nd opposite parties with the 3rd opposite party. Thus they sought for the dismissal of the complaint against the 3rd opposite party.
On the side of complainant proof affidavit was filed and documents marked as Ex.A1 to Ex.9 was submitted. On the side of opposite parties 1 & 2 proof affidavit was filed but no documents were filed. On the side of 3rd opposite party written version was filed but proof affidavit and written arguments were not filed and also not adduced oral arguments on their side.
Points for consideration:-
- Whether the alleged act of opposite parties 1 & 2 in prescribing the tablet Zenoflex-OZ for the complainant’s abdominal pain resulting in allergic reactions amounts to Medical negligence resulting in deficiency in service on their part and whether the same has been successfully proved by the complainant?
- To what reliefs the complainant is entitled?
Point No.1:-
On the side of complainant the following documents were filed for proving the complaint allegations;
- Prescription dated 15.01.2022 was marked as Ex.A1;
- Discharge Summary issued by Saveetha Hospital dated 20.01.2022 was marked as Ex.A2;
- Legal notice issued by the complainant to the opposite parties 1 & 2 and the Managing Director, Manikind Pharma Limited dated 23.02.2022 was marked as Ex.A3;
- Complaint given by the complainant to the President, Tamil Nadu Medical Counsel dated 23.02.2022 was marked as Ex.A4;
- Discharge Summary issued by Saveetha Hospital dated 01.03.2022 was marked as Ex.A5;
- Reply notice issued by the opposite party to the complainant dated 19.03.2022 was marked as Ex.A6;
- Reply by the Mankind Pharma Limited dated 13.05.2022 was marked as Ex.A7;
- Medical bills of the complainant was marked as Ex.A8;
- Photos of the complainant was marked as Ex.A9;
Heard the learned counsel appearing for the complainant and opposite parties 1 & 2. Though the 3rd opposite party filed written version they did not file any proof affidavit nor came forward to file written arguments and adduced oral arguments.
It was the case of the complainant that he approached the 1st opposite party’s Hospital where the 2nd opposite party was a Doctor for abdominal pain on 15.01.2022. The 2nd opposite party/Doctor after examining the complainant prescribed medicines containing tablets and syrup for five days. The complainant when took the medicines as prescribed, developed bubbles all over his feet and bleeding wound all over the body, tongue, lips, mouth, throat, penis and anus etc. The complainant was admitted in Saveetha Hospital and was treated for nearly 10 days for the alleged injuries and for piles problem. Thus alleging that only due to over dosage of the medicines prescribed by the 2nd opposite party to the complainant he suffered injury, complainant sought for the complaint to be allowed.
On the other hand the learned counsel appearing for the opposite parties 1 & 2 argued that when the complainant approached for stomach pain, after enquiring about allergy, the medicines were prescribed by the Doctor. Along with the medicines scan was also advised which the complainant did not comply with. The complainant took treatment for piles along with Drug Eruption which complaint was not revealed to the 2nd opposite party at the time of consultation for abdominal pain. Further referring the text book Pharmacology and Pharmacotherapeuties the counsel stated that the prescribed medicines was given for Urinary Tract Infection, Typhoid, Gonorrhoes, Gastroenteritis, skin, soft, tissue, bone and joint infections especially with Gram negative organisms. Thus he argued that there is no negligence on the part of Doctor in prescribing the medicine and that soon after the alleged side effects, complainant did not approach the 2nd opposite party for appropriate treatment. He sought for dismissal of the complaint.
On appreciation of the entire pleadings and materials we could see that the act of the opposite party/Doctor did not fall under the parameters as established in various authoritative pronouncements regarding medical negligence resulting in deficiency in service for the reasons below;
- As per the prescription Ex.A1 dated 15.01.2022 it is found that the Doctor had recorded “NIL” towards allergy along with BP, Pulse, SPO2, Temperature etc. Thus it is evident that the complainant had not informed the Doctor that he was allergic to any drug;
- Even as per version of the complainant himself in the notice issued to the opposite parties the very next day of prescription i.e. on 16.01.2021 he complained itching sense all over the body. However, it is found that he did not contact the Doctor immediately reporting the same. If he had contacted the Doctor complaining about the itching sense, the 2nd opposite party/Doctor might have advised him appropriately;
- Inspite of getting itching sense all over the body the complainant neither approached the Doctor nor stopped the tables but continued it for nearly four days until 20.01.2022 which resulted in aggravating the situation causing bubbles all over his feet and bleeding wound all over the body, tongue, lips, mouth, throat, penis and anus etc. for which opposite parties 1 & 2 could not be held responsible;
- Even on 17.01.2022 when the Manager advised the complainant to approach the Hospital, the complainant did not go to Hospital but continued medicines till 20.01.2022;
- The complainant himself has admitted that the medicines contains Zenoflex-OZ was given for uncontrolled stomach pain with low BP. Hence it would not be proper to say that the medicines was given negligently as the complainant had approached the opposite parties 1 & 2 which severe abdominal pain;
- Some drugs can cause symptoms resulting in allergic reaction for the first time when the medicines are consumed. Hence when the complainant suffered with Drug Allergic within a day he ought to have approached the Doctor who prescribed the same for further treatment;
- Zenflox-Oz Tablet as per the medical literature seems to belongs to group of medicines called antibiotics used to treat bacterial infections of the urinary tract, bacterial infections by inflammation of the peritoneum, eye and ear infections, skin and soft tissue infections, sexually transmitted infections, respiratory infections, vaginal infections, protozoan infections, intra-abdominal infections, etc. Hence the medicines could not be termed as one wrongly prescribed for the complainant’s ailments;
- It is seen from Medical literature that the tablets Zenflox-Oz may cause side effects such as Headache, nausea, vomiting, itching vaginal inflammation which are common and in some cases stomach pain, dry mouth, fungal infection etc. It is found only in rare cases it causes drowsiness. But no reason was found for the side effects of the medicines to occur for patient. In such circumstances when the complainant had no history of allergy as per prescription (Ex.A10) no fault could be attributable on the part of Doctor in prescribing the said medicines;
- As per Discharge Summary (Ex.A5) dated 01.03.2022 of the Seveetha Medical Center it is mentioned that he had a history of “Lower Respiratory Tract Infection” and the tablets prescribed by the 2nd opposite party was shown as known allergy. In the course of treatment column it was seen that the complainant was treated for Lower Respiratory Tract Infection/TB and treated with I.V. antibiotics and antipyretics. However, in Discharge Summary Ex.A2 dated 31.01.2022 the diagnosis was mentioned as FIXED DRUG ERUPTION POSTERIOR FISSURE IN ANO and the treatment was given for painless growth in perianal region for the past one year. It is seen that no particular treatment was given except certain gel and cream for the drug eruption.
For the above reasons we conclude that only if a health care professional fail to make necessary checks before prescribing medicines/treatment resulting in severe allergic reaction, it could be considered as medical negligence resulting out of failure on the part of the Doctors to exercise due care he owes to the patient. We also find our decision supported by a recent order passed by the Apex Court in Shabir Husain v. Centre for Sight, 2023 SCC OnLine NCDRC 190, 09-06-2023 wherein it has been held that no sensible medical professional would intentionally commit an act or omission which would result in harm or injury to the patient, since their professional reputation would be at stake. “A single failure or lapse may cost them dear”....
Further In the authoritative case of Dr. Laxman Balkrishna Joshi vs. Dr. Trimbark Babu Godbole and Anr., reported in AIR 1969 SC 128 and in A.S.Mittal v. State of U.P., AIR 1989 SC 1570, it was laid down that when a doctor is consulted by a patient, the doctor owes to his patient certain duties which are: (a) duty of care in deciding whether to undertake the case, (b) duty of care in deciding what treatment to give, and (c) duty of care in the administration of that treatment. A breach of any of the above duties may give a cause of action for negligence and the patient may on that basis recover damages from his doctor. In the present case it is seen that the Dr had exercised due care in deciding what treatment to give and had treated by giving proper medicines appropriately. Inspite of the same, the complainant suffering amputation is unfortunate and hence no liability could be fixed on the Doctor. Thus we hold that the complaint allegations as to deficiency in service on the part of the opposite party has to be negatived.
In the facts and circumstances when the medicine was prescribed appropriately for the complaint with which the complainant had approached the Doctor, no medical negligence resulting in deficiency in service could be imposed upon the opposite party Doctor and hospital. The 3rd opposite party is no way connected to the transactions that occurred between the complainant and the opposite parties 1 & 2. In the result we hold that the act of opposite parties 1 & 2 in prescribing the medicine does not come under the purview of medical negligence and no deficiency in service made out on their part by the complainant. Thus we answer the point accordingly.
Point No.2:-
As we have held above that the opposite parties had not committed any medical negligence, the complainant is not entitled any reliefs from the complaint.
In the result the complaint is dismissed. No order as to cost.
Dictated by the President to the steno-typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this the 20th day of July 2023.
Sd/- Sd/- Sd/-
MEMBER-II MEMBER-I PRESIDENT
List of document filed by the complainant:-
Ex.A1 | 15.01.2022 | Prescription. | Xerox |
Ex.A2 | 20.01.2022 | Discharge Summary. | Xerox |
Ex.A3 | 23.02.2022 | Advocate Notice. | Xerox |
Ex.A4 | 23.02.2022 | Complaint to TN Medical Council. | Xerox |
Ex.A5 | 25.02.2022 | Discharge Summary. | Xerox |
Ex.A6 | 19.03.2022 | Reply Notice. | Xerox |
Ex.A7 | 13.05.2022 | Reply by the Makind Pharma. | Xerox |
Ex.A8 | ………….. | Medical Bills. | Xerox |
Ex.A9 | …………….. | Colour Photos. | Xerox |
List of documents filed by the opposite parties 1 & 2:-
NIL
Sd/- Sd/- Sd/-
MEMBER-II MEMBER-I PRESIDENT
