This case is coming for final hearing on 28-07-2014 in the presence of Sri D.Naresh Kumar, Advocate for Complainant and Sri P.Rama Krishna, Advocate for Opposite party and having stood over till this date, the Forum delivered the following.
The present complaint is filed before this Forum on 24.02.2012 on behalf of Mast.Galavilla Lathin by his father i.e. natural guardian G.Ganapathi against the Opposite Party–Doctor alleging medical negligence on part of him under Sec.12 of Consumer Protection Act and the complainant requested the Forum to direct the Opposite Party Doctor (i) to pay Rs.5.00 Lacs compensation for causing damages to the Eye of the complainant’s son Mast.G.Lathin (ii) to pay Rs.1.00 lakh towards damages for deficiency of service (iii) to pay Rs.10,000/- towards legal expenses (iv) to pass any Order or Orders as this Forum deems fit and proper basing upon the circumstances of the case.
The brief facts are as follows: The complainant’s son is aged about 8 years, studying in the school, now hale and healthy, who is represented by his father i.e. Complainant who is a Washerman by virtue of his livelihood. The Opposite Party-Doctor is an Eye-Specialist running the Clinic under the name and style of Sudha Eye Hospital at Seethammadhara, Visakhapatnam. While so on 19.08.2008 his son got some infection in the Eye and he approached the Opposite Party for treatment. The Opposite Party prescribed the medicines along with ‘Dexacort N’ ointment and advised to use the said Ointment daily. After using the said medicine inspite of decreasing pain and swelling of the eye, the problem was increased and there is a flow of water from both eyes and his son lost vision.
Viewing the apprehension that there will be some danger in future and with regarding to the eyes of his son, the complainant took his son to Visakha Eye Hospital on 14.06.2010 and the Doctors at Visakha Eye Hospital investigated the decease and opined that on account of continues use of ‘Dexacort N’ ointment the complainant’s son lost his vision and advised him not to use the medicine further. Since then the complainant is following the treatment given by the Visakha Eye Hospital Trust, Visakhapatnam. The complainant is alleging the Opposite Party Doctor that because of his gross deficiency of service his son lost his vision by that he has suffered both mentally and physically besides financially also. For that the Opposite party is liable to pay the compensation for the damages for his negligent treatment. The complainant got issued Legal Notice dt.17.10.2011 demanding for the compensation and the Opposite Party-Doctor gave Reply to the said Notice on 24.10.2011 with false allegations and as there is no other go except filing the Complaint in this Forum, the complainant has filed the complaint seeking reliefs as sought for.
Notice served to the Opposite Party and on behalf of Opposite Party Sri P.Rama Krishna, Advocate, filed Vakalatnama and Counter was filed on behalf of Opposite Party. In the counter, the Opposite Party stated that he has never advised the complainant to use medicines daily. It is false to state that the complainant has taken to the Visakha Eye Hospital on 14.06.2010 and Doctor’s opine that because of continues use of ‘Dexacort N’ ointment, the complainant’s son lost his vision. For that the complainant has to prove the same with appropriate proof. The complainant’s son is only having allergy and the same was caused due to different reasons as the complainant’s family belonging to the Washermen and engaged in washing clothes daily by their profession. So because of that heavy smoke and dust the allergy might have been caused. For that there is no fault on the part of the Opposite Party, the Complainant has leveled bold allegations against the Opposite Party and after the invention of the cause and alleging the allegations that “medicine continuously use”, the present complaint is filed which is not maintainable. The Opposite Party is not aware of the treatment or investigation of other Doctors or any hospitals given to the Complainant’s son, prior to filing of this case. The reply given by the Opposite Party for the Notice sent by the Complainant on 24.10.2011 may be read as part and parcel of the Counter. The Opposite Party is the specialized and trained Doctor and having Surgical branches in London for a decade. Later on from two decades, he is practicing in India by way of training and experience he got.
The Opposite Party has prescribed ‘Dexacort N’ ointment to the Complainant’s son, which is available in small tube of 0.5 gms costs about Rs.8/-. He has never suggested to use the medicine continuously for prolonged time. The complainant’s son might have used the said medicine without going through the direction in the prescription for months and years and thereby in such case there is a chance of developing Cataract or Glaucoma which may result in loss of vision. In Reply Notice dt. 24.10.2011 for the Notice given by the Complainant, the Opposite Party has given the reply revealing the facts and the results for using the ‘Dexacort N’ after receiving the Reply Notice from the Opposite Party, the Complainant has forged the prescription dt. 20.12.2008 and added the word “continues” in last line.Perhaps after seeing the Reply for the Legal Notice given by the Complainant on 17.10.2011 having after thought idea to claim the wrongful gains the complainant has tampered and forged and also got written the said word beside the direction given on 20.12.2008 i.e. mentioned on the reverse of the card dt. 01.10.2008. On perusing the copies of the documents supplied by the complainant i.e. the document related to Visakha Eye Hospital Doctors on 22.05.2008 the complainant’s son was directed to stop the usage of ‘Dexacort N’ ointment. Surprisingly again on 14.06.2010 the same hospital gave the same direction again i.e. “stop Dexacort N’. This itself shows that the complainant or his son is in negligent manner or in reckless manner mischievously utilize the said medicine inspite of the advice of the Doctors. There is no document or any opinion to prove that due to wrong diagnosis or ill-assessment or negligent treatment of the Opposite Party the complications rather loss of vision occurred.
The Opposite Party is a service oriented Doctor and without demanding even a pie from persons of economically weaker sections, they use to give treatment and the allegations of paying the huge fees, amounts to blunt lie. Hence as there is no deficiency of service on part of the Opposite Party-doctor, the complaint is liable to be dismissed with costs.
The Opposite Party was not cross-examined.
On perusal of the aforementioned pleadings of the both sides the Forum has framed the following points for consideration.
Whether there is any deficiency of service on part of the Opposite party-Doctor and
to what relief.
The complainant filed his Evidence Affidavit reiterating the facts mentioned in the complaint and on his behalf Exs.A1 to A5 were marked. The Opposite Party filed Evidence Affidavit and not filed any documents on his behalf at length and descriptively. Both parties filed Written Arguments and also submitted oral arguments at length and discriptively. At the time of arguments, the Opposite Party submitted 5 case laws (1) (2000) 3 Supreme 520, State of Haryana Vs Santra (2) (1998) 3 Supreme 183 Spring Meadows Hospital & Anr Vs Harjol Ahluwalia (3) FA 402/2009 against C.D. 297/2002 of District Forum-I, Hyderabad vide Order pronounced by Hon’ble State Commission, A.P. (4) Case law, Gopiram Goyal & others Vs. National Heart Institute and others decided on 28.02.2001 (5) Faizan Uddin Vs Home secretary, Ministry of Home Affairs, date of decision 21.08.1995 in support of the defense of the Opposite party.
After the matter was posted for orders on 11.08.2014 Complainant field IA for reopening the matter for hearing. Even at that time also either the Complainant did not choose to cross-examine the OP-Doctor or for filing expert opinion from relevant field Doctor. Hence after hearing both sides the matter was posted for orders on 22.10.2014, basing upon the material evidence available and the contentions of both sides.
Point Nos.1 & 2: The present complaint is filed by the complainant on behalf of his son against the Opposite Party-Doctor i.e Eye Specialist seeking compensation and damages for his negligent treatment, by directing his son to use ‘Dexacort N’ ointment continuously and thereby he lost vision permanently as confronted by the Visakha Eye Hospital Doctors.
- The Opposite Party after receiving the Notices from the Forum and filed Counter and stated that he has never prescribed ‘Dexacort N’ ointment to the Complainant’s son for using continuously and even observing the Visakha Eye Hospital treatment documents also. It does not reveal that it should be used continuously and observing the suggestion of the Visakha Eye Hospital doctors dt. 22.05.2008 & 14.06.2010, it seems the complainant’s son using the medicine without the advice of the Doctors continuously and thereby there is a mistake upon the complainant or his son for using the said ‘Dexacort N’ and thereby the negligence is on the part of them only and not on the part of the Opposite Party Doctor and hence the complaint is liable to be dismissed with costs.
Now in this matter, the point to be decided is whether is deficiency of service on part of the Opposite Party-Doctor for prescribing the medicine ‘Dexacort N’ ointment to the Complainant’s son.
Ex.A1 is marked of bunch of 5 documents, in which it reveals that on 19.08.2008 (as admitted by the complainant in Evidence ffidavit he might approach the Opposite party-Doctor for the treatment of his son and the Opposite Party Doctor prescribed medicines for the allergy. In the prescription dt. 10.01.2008, the 2nd medicine prescribed the ‘Dexacort N’ ointment to be used at bed time. In the Card d.t 14.10.2010, the suggestion mentioned was mild allergy – glasses no change”. In the Card dt.21.01.2009 it seems the contact lens are prescribed to the complainant’ son. In the card dt. 01.10.2008 (on the face of the card) it was mentioned as “flare up of allergy on sloping” on the reverse of the card dt. 1.10.2008 i.e. the suggestion dt.20.12.2008. It was stated as “mild allergy now”. The 1st medicine prescribed is Epena drops. The 2nd medicine prescribed is Dexacort N Eye Ointment (Bed time). Under the sentence Dexacort N Eye ointment i.e. (under the word ointment) a word continues is in different writing style.
Ex.A2 is the bunch of 13 documents pertaining to the Visakha Eye Hospital. Ex.A3 is the Ophthalmic Case Record dt. 22.05.2008 of the Visakha Eye Hospital Trust in Page No.2 under the column diagnosis and in the investigation advised it was mentioned as “stop Dexacort N”. In the follow up prescription dt. 14.06.2010 of the Visakha Eye Hospital, it was mentioned as “still using Dexacort N and under that the word stop Dexacort N is mentioned. Ex.A3 is the Ophthalmic Case Record dt. 22.05.2008 of the Complainant’s son G.Lathin. In which, in the column Complaints it was written as “using Dexacort Ointment” and in Investigation & Advise it was written as “Stop Dexacort-N”.
- Ex.A4 is the Legal Notice dt. 17.10.2011 given to the Opposite Party-Doctor by the Complainant through the Advocate Sri D.Naresh Kumar in which it was stated that as the complainant’s son was got treated by the Opposite Party-Doctor and used the Dexacort N and advised the complainant’s son to use the medicine daily, because of that the complainant’s son lost his vision. Ex.A5 is the Reply Notice for the Ex.A4, in which the Doctor i.e. Opposite Party gave Reply in detailed manner (in Para No.4) that the Ointment is available in a small tube of 0.5 gms costs about Rs.8/-. The Opposite Party never suggested ‘continues’ prolonged use, if same is used months and year there is every chance of
At the time of the arguments, the counsel for the Opposite Party stated that in the Ex.A1 i.e. on the reverse of the Card dt.20.12.2008 the word continues is inserted/fabricated and forged the Card after receiving the Ex.A5 Reply Notice from the Opposite Party. The Complainant’s counsel stated in the Arguments that there is no tampering in the Ex.A1 suggestion dt. 20.12.2008 it was written by Opposite Party only.
The prescription Card dated 1.10.2008 (Front & Back side) of Ex.A1 reveals the facts as follows: Observing the writing style of the OP-Doctor in the Ex.A1 suggestion dt.20.12.2008, the small alphabet “t” in the word “ointment” and the small alphabet in the word “continues” are in different style. Even there is variation in the ink colour /in the sentence “Dexacort N Eye Ointment (Bedtime)” and the word “continues” is different. The colour of the Ball point pen used in writing “Dexacort N Eye Ointment (Bed time) is in thick blue colour and the word inserted “continues” is in light blue colour. Even in the Counter also the Opposite Party has stated (in para 4) that the said word ‘continues’ is inserted by the complainant after receiving the Ex.A5 Notice. Even observing the facts mentioned in the Ex.A4 Legal Notice also the complainant has not whispered about issue of fabrication. At the same time the Opposite Party is stating that after receiving Reply for Ex.A4 i.e. the Ex.A5, the Complainant has forged the ‘prescription’ dt. 20.12.2008 and inserted the word ‘continuous’ under Dexacort-N Ointment (Bed time). As per the case law III (2013) CPJ 114 (NC) between Prakash Vs Shreekant, Hon’ble National Commission held, “when the execution of agreement alleged by Complainant is denied by Opposite Party on grounds of fabrication, the civil court is the appropriate forum for filing suit. Forum is not having jurisdiction.
- Observing the principle of Case Law above with the facts in this matter, when there is any allegation with regard to any document i.e. here in this matter with regard to the card dt.1.10.2008 i.e. enclosed with Ex.A1 the Forum is not having jurisdiction to entertain the present complaint as the issue is involved with the fabrication and forging the Doctor’s prescription.
In the complaint and in Evidence Affidavit the complainant is admitting that he approached the Opposite Party clinic as his son got some eye infection on 19.08.2008 and since then Opposite Party started him treatment and prescribed some medicines and during the course he has advised to use Dexacort-N Ointment daily. As seen from Ex.A3 case record of Complainant’s son G.Latin pertaining to the Visakha Eye Hospital Trust, in the column Complaints it was written as using Dexacort-N Ointment. In the same Ex.A3 in the investigation and advised it was noted by the concerned Doctor has stopped Dexacort-N. Similarly in the case record dt.14.06.2010 of Visakha Eye Hospital, it was noted by the concerned Doctor that “still using Dexacort-N and advised to stop Dexacort-N”. In this matter observing the Ex.A3, Case Record dt.22.05.2008 along with 14.06.2010 and the Opposite Parties prescription (in Card dt.1.10.2008) and on the reverse of the said card for the prescription dt. 18.10.2008 and 20.12.2008 it seems the Complainant’s son is utilizing the Dexacort-N Ointment prior to approaching the Opposite Party-doctor from 22.05.2008 onwards. May be the said Dexacort-N Ointment might have been prescribed by the Visakha Eye Hospital doctors or some other Doctors. Unless the Opposite Party-Doctor and Visakha Eye Hospital Doctors have been cross-examined, we cannot come to a conclusion that there is negligence on part of Opposite Party-Doctor. Hence observing the Ex.A3 Case Record dt.22.05.2008, it seems the Complainant’s son is using the Dexacort-N Ointment prior to approaching the Opposite Party-Doctor from 22.05.2008.
- As per the Judgement of Dr.J.J.Merchant case, the Complainant is having right to cross examine the Doctor as this is clearly related to the medical case. As per Sec.101 of Indian Evidence Act, the burden of proof lies upon the person who affirms any allegation against others. As per the legal maxim onus probandi means “burden of proof”. Generally, a party who alleges an affirmative position has to prove it. The Legal Maxim affirmantis est probare means “the person who affirms must prove”. As per case law IV 2007 CPJ 64 (NC) Ajay Gupta Vs Dr Pradeep Agarwal, it was held the treatment given is in any way contrary to establish medical norms not proved. Expert evidence in support not produced and the Appeal is dismissed. As per case law 2007 III CPR 48 (NC), Ajay Sony Vs Jabalpur Hospital and Research Centre and others, it was held medical negligence cannot be confirmed. It was to be proved by the complainant by expert evidence supported by medical evidence to prove his case. Even in the case of V.Kishan Rao Vs. Nikhil Super Speciality Hospital II (2010) 3 PR 101 (SC), it was observed that expert evidence is necessary for proving the case.
In this matter though the opportunity was there, the complainant has not utilized the opportunity and not chosen to cross examine the Opposite Party-Doctor even after he filed the Counter denying the allegations. In this particular matter first of all the expert evidence is not produced. Secondly the counter was not rebutted. Unless until the rebuttance of the counter is done and the expert evidence is filed, the Complainant cannot allege the deficiency of service on the part of Doctor. In the case law Gopiram Goyal & others Vs. National Heart Institute and others filed by the Opposite Party at the time of arguments (in Page 15) it was held that “clear evidence has come out that allergic reaction could also related with administration of PROTOMINE, which had been administered on the deceased earlier. This has not been rebutted by the Complainants’ side. Within these known parameters it would be very presumptuous to assume that the doctors should have responded in any way different than the way they did. In Para No.19 of Judgement it was held that wherein the doctors are expected to exercise reasonable amount of care which in this case was exercised by the Opposites Parties. In our view, the Complainants have failed to prove any case of negligence on the part of the Opposite parties.
On perusal of the facts mentioned in the Faizan Uddin Vs Home Secretary, Ministry of Home Affairs, filed by the Opposite Parties it is no way related to the medical case and related to the service matter pertaining to the arrears of salary and the said appeal was allowed, so the Opposite party cannot rely upon the said case law in this particular medical negligence case.
With regarding to the issue of collection of Huge Fee by OP-Doctor:- Though the Complainant has stated that the Opposite Party has taken huge fees for the treatment except Ex.A1 to A5, he has not filed any documentary proof to that extent. Even in the Ex.A4, Legal Notice given by the Complainant also the issue with related to the payment of the fees not discussed. Hence, observing the version of the Opposite party in the Counter and the Evidence Affidavit vide para No.7 that he has not taken fees, we have to come to an opinion that the Complainant has not given the fees to the Opposite Party-Doctor. For that the Complainant cannot blame the Doctor.
In the light of the facts and observing the medical documents i.e. Ex.A1 to A3 and 2 Legal Notices A4 & A5 along with the 3 case laws vide Paras 21 and 22 supra as the Complainant has not brought the expert evidence particularly relating to the eye problem and also the Opposite Party was not cross examined though he got opportunity to do so, in the absence of the evidence we cannot hold that the Opposite Party Doctor is liable for deficiency of service and hence the Complaint is dismissed without any costs. Accordingly the point Nos.1 & 2 are answered.
In the result the complaint is dismissed without costs.
Dictated to the Shorthand Writer, transcribed by him, corrected and pronounced by us in the open Forum on this the 30th day of October, 2014.
Sd/- Sd/-
President (FAC) Member
District Consumer Forum-I
Visakhapatnam
APPENDIX OF EVIDENCE
Exhibits Marked for the Complainant:
Ex.A1 | | Bunch of Prescriptions of Opposite Party | Originals |
Ex.A2 | | Bunch of prescription and investigation reports of Visakha Eye Hospital Trust | Original |
Ex.A3 | 22.05.2008 | Ophthalmic Case Record | Photostat copy |
Ex.A4 | 17.10.2011 | Legal Notice | Photostat copy |
Ex.A5 | 24.10.2010 | Reply Notice | Original |
Exhibits Marked for the Opposite Party: - NIL -
Sd/- Sd/-
President (FAC) Member
District Consumer Forum-I
Visakhapatnam
