DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

BATHINDA (PUNJAB)

CC No. 153 of 11-04-2011

Decided on : 16-01-2012

Ashish Kumar aged about 15 years son of Harjeet Singh through natural guardian Harjeet Singh, R/o #281, Patel Nagar, Bathinda.

.... Complainant

Versus

1. Pragma Hospital, Bhatti Road, Bathinda, through its MD/GM/Chairman/ President.

2. Singla Neurology Clinic, Pragma Hospital, Bhatti Road, Bathinda, through its MD/GM/Chairman/President

3. Dr. Gaurav Singla, Consultant Neurologist of Singla Neurology Clinic, Part of Pragma Hospital, Bhatti Road, Bathinda.

4. United India Insurance Company Ltd., 54 Janpath, Connaught Place, New Delhi 110 001 through its Divisional Manager

..... Opposite parties

Complaint under Section 12 of the Consumer Protection

Act, 1986.

QUORUM

Smt. Vikramjit Kaur Soni, President

Sh. Amarjeet Paul, Member

Smt. Sukhwinder Kaur, Member

For the Complainant : Sh. Ashok Gupta, counsel for the complainant

For the Opposite parties : Sh. Vikas Singla, counsel for opposite parties.

O R D E R

VIKRAMJIT KAUR SONI, PRESIDENT

1. The instant complaint has been filed by the complainant under Section 12 of the Consumer Protection Act, 1986 as amended upto date (here-in-after referred to as 'Act'). Briefly stated the case of the complainant is that complainant is mentally feeble but can do routine work. All of sudden, in the last week of November, 2010, his body started shivering and the father of the complainant took him to opposite party No. 3 on 4-12-2010. The opposite party No. 3 after check up advised Cap. Batacap TR (407) for 10 days. The complainant again went to opposite party No. 3 on 16-12-2010 and he advised Cap Batacap TR 80 mg tablet for 7 days. The complainant did not feel any relief. Thereafter on 10-02-2011, the complainant again visited opposite parties and tablet Mysoline 250 mg for 10 days was prescribed to him without disclosing any disease or problem. The complainant again visited the opposite party No. 3 who prescribed medicine for 20 days and complainant consumed the medicines with the hope that he would get relief as assured by opposite party No. 3. Thereafter complainant visited opposite party No. 3 on 5-3-2011 and he after checkup prescribed the same medicine Mysoline 250 mg in increased quantity for further 20 days. Despite consuming medicines as prescribed by opposite party No. 3, the condition of the complainant did not improve rather became critical. The opposite party No. 3 refused to entertain the complainant and advised his father to get him treated from DMC, Ludhiana. The father of the complainant requested the opposite party No. 3 to give referral slip and the treatment record of the complainant but the opposite party No. 3 did not accede to his request and left the complainant in the hands of destiny.

   The father of the complainant went to DMC, Ludhiana, and consulted Dr. Birender Singh vide CR No. 2011-35098 who after check up noted down the problem as cerebral palsy and recorded no history of seizure, epilepsy and headache. The said doctor prescribed the medicine for 3 weeks and told the complainant that he is perfectly right and wrong treatment was given at Bathinda for epilepsy. The doctor of DMC stopped all medicines prescribed by opposite party No. 3. The father of the complainant came to know from the doctor of DMC that opposite party No. 3 was giving medicine for epilepsy and headache without disclosing anything to the complainant or his father. The complainant alleged that opposite parties intentionally concealed the diagnosis from the complainant that is why the opposite party No. 3 did not mention disease or the problem in the OPD book. Due to the wrong treatment given by the opposite parties, the complainant is suffering ill health and weakness and is not able to do his routine work. It is the professional duty of the doctor to diagnose the problem and advise the patient regarding the disease and further to explain the risks involved in the disease and then start the treatment. The opposite parties concealed the problem of the patient and not explained anything about the problem to the father of the complainant. The complainant made repeated requests to the opposite parties to pay the loss suffered by him but the opposite parties flatly refused to do, hence he has filed the present complaint.

2. The opposite party No. 1 filed separate written reply and pleaded that neither the patient was admitted in the hospital of opposite party No. 1 nor any of concerned doctor of the hospital of opposite party No. 1 has given treatment to the complainant. Singla Neurology Centre is situated in the premises of opposite party No. 1 hospital but technically two separate medical centres being managed by different management, as such the complaint against opposite party No. 1 is not maintainable. The complainant has wrongly dragged the name of opposite party No. 1 in the array of parties merely because the clinic of opposite party No. 2 is situated in the premises of opposite party No. 1. The opposite party No. 1 i.e. Pragma Hospital is being run under the sole supervision of Dr. Gursewak Singh Gill whereas Dr. Gaurav Singla takes care of opposite party No. 2 i.e. Singla Neurology Centre.

3. The opposite party No. 2 has stated in its written reply and written statement of opposite party No. 3 be taken as same as submitted by opposite party No. 2.

4. The opposite party No. 3 filed his separate written statement and pleaded that patient Mr. Ashish Kumar, aged 15 years, suffering from static motor damage of brain by the name of cerebral palsy was examined by Dr. Gaurav Singla in his OPD clinic namely Singla Neurology Clinic, located in premises of Pragma Hospital, Bhatti Road, Bathinda, on 4-12-2010 for the first time. The patient was a known case of cerebral palsy. The patient had come to Dr. Gaurav Singla for consultation regarding his problem of tremors. The patient was having tremors in both upper limbs. On examination, he was found to have postural tremors. The opposite party No. 3 explained to the father of the patient that patient was suffering from postural tremors without any evident cause that is Idiopathic/Essential tremor. The opposite party No. 3 prescribed him Cap Betacap TR 40 mg (for 10 days) which is sustained release preparation of propranolol. Propranolol is beta adrenergic blocker drug. Beta blockers are one of the two most commonly used drugs for treating Eessential Tremor. The patient was never hospitalized or admitted. No investigations were required or carried out for the patient at that time. Next time, the complainant visited the opposite party No. 3 in OPD on 16-12-2010 and reported no relief from the medication. The opposite party No. 3 increased the dose of propranolol from 40 to 80 mg/day and called the patient for review after one week. The father of the complainant came to opposite party No. 3 after a gap of one and a half month on 5.2.2011 with records of the patient. The father of the complainant was advised to visit on 7-2-2011 as treatment could be reviewed only after examining the patient. The complainant visited the opposite party No. 3 alongwith his father on 10-2-2011, he was examined thoroughly and treatment modalities were discussed with the father of the complainant. The complainant and his father reported absolutely no benefit with propranolol and requested for alternative medication. The opposite party No. 3 prescribed him Tab Mysoline 31.25 mg (1/8^th of 250 mg tab) at bedtime. Mysoline is formulation of primidone manufactured by Nicholas. Primidone is other one of the two commonly used drugs in Essential Tremor (page No. 2146 of Standard textbook of Neurology- Neurology in clinical practice fourth edition edited by Walter G Bradley, page No. 5 of article named classification of tremor & update on treatment public by American Academy of Family Physicians of March, 15,1999). Thereafter the complainant visited the opposite party No. 3 for review on 23-02-2011 and reported no improvement. The patient was advised to gradually increase the dose of Primidone to 62.5 mg/day and then subsequently to 125 mg/day. The dose was slowly increased to avoid risk of acute side effect. The complainant again visited opposite party No. 3 on 5.3.2011 and reported no relief. The opposite party No. 3 increased the dose of Primidone with the hope of benefit from the treatment. The complainant never reported for follow up after that. However, he during all his visits to opposite party No. 3, never reported any fresh problem after starting the treatment but always complained of no relief from the medication. It has been pleaded that opposite party No. 3 never refused to entertain the patient or to give any referral slip/record of the problem of patient as the patient never reported back to opposite party No. 3 after 5-3-2011. There is no mention of any critical condition of patient on medical prescription. Dr. Birinder Singh had mentioned the same diagnosis of cerebral palsy and postural tremor for the patient. Dr. Birinder recommended Tab Ciplar LA 40 mg to be increased to 60 mg/day. Ciplar LA is the sustained release preparation of propranolol manufactured by Ciplar (page No. 204 of Drug Today July-Sept 2010). This was the same medicine which was prescribed by opposite party No. 3 during the first visit on 4-2-2011 with the name of Betacap TR manufactured by other company. The ill health of the patient is, because of his underlying condition i.e. cerebral palsy and not because of any medicine prescribed by opposite party No. 3. He had a history of delayed cry at birth and delayed milestones and was mentally feeble. Moreover, the patient and his father never complained of any side effect or ill health due to medication given by opposite party No 3 and that was the reason that the dose of medicine was slowly increased to get the beneficial effect without side effects. The patient never took the medicine timely and regularly prescribed by opposite party No. 3 that is why he did not get any improvement. When he took the medicines regularly, he had improvement and that was the reason that the patient made the next follow-up visit only after a gap of one and a half month though he was asked to report to opposite party No. 3 after a week only on 16-12-2010. The opposite party No. 3 has pleaded that if the patient could not recover fully by the medicines prescribed by him, the whole negligence lies on the part of patient and his family. When the patient took same treatment from Dr. Birender Singh, he recovered soon because he consumed the medicines regularly as the illness was for the last few months. The complainant was neither diagnosed as having epilepsy or headache nor the medicines were prescribed for the same. The drugs prescribed by opposite party No. 3 are two most commonly used drugs for treatment of Essential Tremor (propranolol & primidone) as the same drug can be used in multiple medical conditions. Beta blocker (propranolol) can be used in 13 different medical conditions Hypertension, Essential tremor & migraine headache being few of them. Primidone is a drug useful in both epilepsy and essential tremor. The patient was given both drugs for Essential Tremor and not for epilepsy or headache though one of them (propranolol) is also used in headache & the other (primidone) is also used in epilepsy. Propranolol is useful for Essential Tremor and Headache but has no role in Epilepsy. Similarly Primidone is useful for Essential Tremor & Epilepsy but has no role in Headache. The father of the complainant specifically requested opposite party No. 3 not to write down the diagnosis on prescription pad as it could be mentally disturbing for his whole family to read the diagnosis of cerebral palsy and tremors on prescription pad. The complainant was given specific treatment for Essential Tremors only after diagnosing the condition and the father of the complainant was regularly counseled and updated regarding patients problem on every OPD follow up though they were quite irregular during their follow up visit. As a professional opposite party No. 3 gave the recommended treatment to the patient as per literature with the hope of cure but at the same time, it was very well explained to complainant and his father that none of the available therapies for Tremor are 100% effective. It has been pleaded that getting no relief from the treatment does not mean that treatment is wrong or has caused harm to the patient. It is highly unfortunate for opposite party No. 3 but very fortunate for the patient that he got immediate relief from the same medicine when prescribed by doctor at Ludhiana. The fact that medicine did not provide the relief when prescribed by opposite party No. 3 does not imply negligence on the part of doctor though it is possible that patient might not have taken the medicine properly when prescribed by opposite party No. 3. When the patient did not get any relief from treatment locally at Bathinda by opposite party No. 3, they had to go to Ludhiana for treatment. This time the family must have become more vigilant about the medicine being actually and properly taken by the patient, as the patient was suffering from last few months. The complainant could have easily avoided the stress and suffering of going to distant city for treatment, had he taken the medicine properly when prescribed by opposite party No. 3 as it is highly unbelievable that the same drug can be totally ineffective in patient at one point of time and totally curative at other time for same problem. Even if this miracle is possible a doctor cannot be held negligent just because the accurately prescribed drugs did not provide relief to the patient.

5. The opposite party No. 4 filed its separate written reply and pleaded that Dr. G S Gill, Owner/Proprietor of Pragma Hospital i.e. opposite party No. 1 and Dr. Gaurav Singla, opposite party No. 3 are insured with United India Insurance Co. Ltd., 54 Janpath, Connaught Place, New Delhi 110 001, vide Professional Indemnity Insurance policy Nos. 040100/46/10/35/00000422 effective from 24-04-2010 to 23-04-2011 and Policy No. 040100/46/09/35/00004373 effective from 05-1-2010 to 4-1-2011, respectively, during the period the patient Mr. Ashish Kumar was treated by opposite party No. 3 on 4-12-2010.

6. Parties have led their evidence in support of their respective pleadings.

7. Arguments heard. Record alongwith written submissions submitted by the parties perused.

8. The learned counsel for the complainant submitted that although the complainant is mentally feeble but he was doing his routine work. He was having acute shivering in the body on 4-12-2010, his father took him to opposite party No. 3 who advised to take the oral medicine i.e. Cap. Betacap TR (407) for 10 days. On 16-12-2010, the complainant again visited opposite party No. 3 and he advised Cap. Betacap TR 80 mg and tablet for 7 days. Since the complainant did not get any relief, he again visited opposite party No. 3 on 10-02-2011, the opposite party No. 3 prescribed tablet Mysoline 250 mg for 10 days without disclosing any disease or problem. The complainant did not get any relief despite repeated visits to opposite party No. 3 and consuming the medicines prescribed by him. Ultimately, the opposite party No. 3 refused to entertain the complainant and advised his father to get the treatment from DMC Ludhiana and did not give any treatment record or referral slip. The opposite party No. 3 did not disclose the disease of the complainant whereas he was duty bound to write down the diagnosis and treatment in the OPD book. The learned counsel for the complainant further submitted that opposite party No. 3 despite knowing the fact that complainant was not getting any relief from the treatment given by him, did not change the line of treatment and not taken the second opinion as the patient was not recovering.

9. On the other hand, the learned counsel for opposite party No. 3 submitted that patient was properly examined, investigated, diagnosed and treated by opposite party No. 3 as per prescribed norms of medical practice. The opposite party No. 3 is well reputed and qualified doctor having qualification as MBBS (1997) from Govt. Medical College, Patiala, MD (Medicines 2001) from Dayanand Medical College, Ludhiana, Doctor of Medicine (DM) (Neurology from University of Delhi in the year 2006 and is duly registered with Punjab Medical Council Chandigarh vide registration No. 30950. He submitted that patient Mr. Ashish Kumar, aged 15 years, suffering from static motor damage of brain by the name of cerebral palsy was examined by opposite party No. 3 in his OPD clinic on 4-12-2010. He was having tremors in both upper limbs. On examination, the patient was found to have postural tremors. The opposite party No. 3 explained to the father of the patient that patient was suffering from postural tremors without any evident cause that is Idiopathic/Essential tremor. The opposite party No. 3 prescribed him Cap Betacap TR 40 mg (for 10 days) which is a sustained release preparation of propranolol. Propranolol is beta adrenergic blocker drug. Beta blockers are one of the two most commonly used drugs for treating Essential Tremor. He reported no relief on 16-12-2010, so the opposite party No. 3 increased the dose of propranolol from 40 to 80 mg/day for called the patient for review after one week. The father of the complainant visited opposite party No. 3 after a gap of one and a half month on 5-2-2011 and he was advised to come with the patient. On 10-02-2011, the patient was examined thoroughly and the patient and his father reported absolutely no benefit with propranolol and requested for alternative medication. Accordingly, opposite party No. 3 prescribed him Tab. Mysoline 31.25 mg (1/8^th of 250 mg tab) at bedtime. Thereafter the complainant visited the opposite party No. 3 on 23-02-2011 and reported no improvement and he was told to gradually increase the dose of Primidone at 62.5 mg/day and then subsequently to 125 mg/day. The complainant again visited opposite party No. 3 on 5-3-2011 and again report no relief and opposite party No. 3 increased the dose of Primidone further with the hope of benefit from the treatment and thereafter the patient never reported for follow up. The learned counsel for opposite party No. 3 submitted that during all his visits to opposite party No. 3, the complainant never reported any fresh problem after starting the treatment but always complained of no relief from the medication. Dr Birinder Singh gave the complainant same medication and the ill health of the complainant is because of his underlying condition i.e. cerebral palsy and not because of any medicine prescribed by opposite party No. 3. The complainant was never diagnosed as having epilepsy or headache. He was never prescribed any medicine for headache or epilepsy as he was not suffering from these conditions. The patient was given both drugs for Essential Tremor and not for epilepsy or headache though one of them (propranolol) is also used in headache and the other (primidone) is also used in epilepsy. The doctor at DMC prescribed the same medicine (propranolol) to the patient as prescribed by opposite party No. 3 on first visit and the doctor at DMC who attended the patient has given expert witness in this case that the treatment given by Dr. Gaurav Singla is as per medical literature. The learned counsel for the opposite party No. 3 further submitted that getting no relief from the treatment does not mean that the treatment is wrong or has caused harm to the patient. The two drugs prescribed by opposite party No. 3 are the most commonly used drugs in Essential Tremor but are effective in only 50% of the patients and this fact was very well explained to the father of the patient. For this, he referred page No. 2146 of Standard textbook of Neurology – Neurology in clinical practice fourth edition edited by Walter G Bradley.

10. A perusal of prescription slip of opposite party No. 3 reveals that complainant first time approached opposite party No. 3 on 04-12-2010. The opposite party No. 3 vide said slip prescribed the medicines to the complainant. The opposite party No. 3 has deposed in para No. 12 of his affidavit Ex. R-12 that :-

    “....No investigations were required or carried out for the patient at that time.”

11. As per Consumer Protection Act and Medical Profession by M.K Balachandran – Department of Consumer Affairs, Government of India – in association with – Indian Institute of Public Administration New Delhi, the Duties of a doctor are :-

Doctors generally have certain duties towards their patients. Some of the important duties are :

: to exercise a reasonable degree of skill and knowledge and a reasonable degree of care;

: to exercise reasonable care in deciding whether to undertake the case and also in deciding what treatment to give and how to administer that treatment;

: to extent his service with due expertise for protecting the life of the patient and to stabilize his condition in emergency situation;

: to attend to his patient when required and not to withdraw his services without giving him sufficient notice;

: to study symptoms and complaint of the patient carefully and to administer standard treatment;

: to carry out necessary investigations through appropriate laboratory tests wherever required to arrive at a proper diagnosis;

: to advise and assist the patient to get a second opinion and call a specialist if necessary;

: to obtain informed consent from the patient for procedures with inherent risk of life.

: to take appropriate precautionary measures before administering injections and medicines and to meet emergency situations;

: to inform the patient or his relatives the relevant facts about his illness;

: to keep secret the confidential information received from the patient in the course of his professional engagement;

: to notify the appropriate authorities of dangerous and communicable disease;

17. As mentioned above, it is the duty of the doctor to carry out necessary investigations through appropriate laboratory tests wherever required to arrive at a proper diagnosis whereas in the present case, this fact has been admitted by opposite party No. 3 itself that no investigations were carried out at that time. Before starting the treatment, the opposite party No. 3 did not think it necessary to get the vital tests/investigations done to diagnose the disease of the complainant. As per prescription slip Ex. C-3, the complainant first time approached opposite party No. 3 on 4-12-2010 and till 5-3-2010 for about three months, the opposite party No. 3 on reporting by the complainant that there is no relief, the opposite party No. 3 kept on increasing the dose without going into investigation and did not deem it fit to take the second opinion whereas he was duty bound to advise and assist the patient to get a second opinion and call a specialist if necessary. When the complainant did not get relief, his father took him to DMC, Ludhiana, without any record as the prescription slip issued by the opposite party No. 3 does not contain any detail regarding disease or investigations etc.,

18. A perusal of prescription slip Ex. C-2 of DMC College & Hospital, Ludhiana, reveals that when the complainant approached said hospital, his BP and weight was checked and thereafter his necessary tests were carried out as is evident from I.Q. Assessment Report Ex. C-6 and thereafter treatment was provided to him. The relevant portion of said report reads as under :-

    “ Brief Clinical/Developmental History:

    He was full term normally delivery at hospital. There were complications reported by the mother during birth, as her mother had severe labour pain and her uterus was got opined. He does not cried immediately after the birth, as per mother's information birth weight was normal. Milestones were achieved delayed both motor and language. He has been poor in studies throughout. He cannot take meal properly. He is a diagnosed case of Cerebral Palsy. Now he was presented with the complaints of postural tremers. Therefore, he was referred for the intelligence assessment.

    BEHAVIOURAL OBSERVATIONS:

    He was not much cooperative for the testing, therefore the rapport was established with difficulty. He could not understand the instruction given to him for the MISIC test. Therefore, he was administered informal intelligence tests.

    TESTS ADMINISTERED

    Gassell's Drawing Test (GDT)

    Vineland Social Maturity Scale (VSMS)

    TEST FINDINGS

    On above test his mental and social age was found to be around 6 years with the corresponding I.Q. of 40, which comes under the category of moderate mental retardation in his intellectual and social adaptive skills.

    IMPRESSION : MODERATE MENTAL RETARDATION”

19. The complainant has stated in para No. 2 of his complaint that he is mentally feeble but doing his routine work. He has stated in his complaint that father of the complainant went to the DMC and consulted Dr. Birinder Singh vide CR No. 2011-35096 who after checking the patient wrote down the problem cerebral palsy and recorded no history of seizure, epilepsy and headache and prescribed medicines for three weeks and told the patient is perfectly right and wrong treatment was given at Bathinda for epilepsy. He has stated that after taking medicines of doctor of DMC, the complainant got relief from shivering but due to wrong medicine prescribed the opposite party No. 3, the complainant is still suffering ill health weakness etc., as the wrong medicine effected and created health hazard to the complainant. To prove his version that the doctor of DMC has told him that wrong treatment was given at Bathinda for epilepsy, the complainant has produced nothing on file. He has also failed to prove by leading cogent and convincing evidence that due to medicines prescribed by opposite party No. 3 he has suffered any side effect or ill health or weakness whereas the opposite party No. 3 has produced in evidence affidavit Ex. R-14 of Dr. Birender S Paul, Assistant Professor in Deptt. Of Neurology at DMC & Hospital, to the effect that treatment given by opposite party No. 3 was as per prescribed norms of general practice.

20. The contention of the opposite party No. 3 that he has not written the diagnosis on the prescription slip as it was requested by the father of the complainant is without any base, specifically when in the present complaint the father of the complainant himself has written that complainant is mentally feeble. No doubt, the doctor who treated the complainant at DMC has opined that treatment given by opposite party No. 3 was as per prescribed norms of general practice but, as discussed above, the negligence on the part of opposite party No. 3 proves only to the extent that he did not conduct investigations before starting treatment and when complainant did not respond to the treatment for three months, he did not take second opinion or referred him to some higher institute with sufficient record such as diagnosis or recorded history of any disease of the patient etc,. The complainant took treatment continuously for three months and got no relief and ultimately, he had to approach DMC without any proper record. Due to this act of the opposite party No. 3, the complainant must have suffered financial loss, mental and physical pain for which he deserves some compensation.

21. In view of what has been discussed above, this complaint is dismissed qua opposite party No. 1 & 4 and accepted against opposite party Nos. 2 & 3 with cost of Rs. 5,000/- The opposite party No. 3 is directed to pay Rs. 20,000/- as compensation to Sh. Harjeet Singh, natural guardian of complainant, through whom this complaint has been filed.

The compliance of this order be made within 45 days from the date of receipt of copy of this order. copy of this order be sent to the parties concerned free of cost and the file be consigned to record.

Pronounced

16-01-2012

(Vikramjit Kaur Soni)

President

(Amarjeet Paul) Member

(Sukhwinder Kaur)

Member