KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION

VAZHUTHACAUD, THIRUVANANTHAPURAM

APPEAL Nos.164/2016 and 208/2016

COMMON JUDGEMENT DATED: 20.11.2024

(Against the order in C.C.No.214/2013 of the CDRC, Palakkad)

PRESENT:

APPEAL No.164/2016

APPELLANT:

(by Adv. M.C. Suresh)

Vs.

RESPONDENTS:

(by Adv. C.S. Rajmohan)

(by Adv. P.N. Balagopalan and Adv. S. Reghukumar)

APPEAL No.208/2016

APPELLANT:

(by Adv. P.N. Balagopalan and Adv. S. Reghukumar)

Vs.

RESPONDENTS:

(by Adv. C.S. Rajmohan)

(by Adv. M.C. Suresh)

Common Judgement

HON’BLE JUSTICE SRI. B. SUDHEENDRA KUMAR  :  PRESIDENT

          The appellant in Appeal No. 164/2016 is the 1^st opposite party and the appellant in Appeal No. 208/2016 is the 2^nd opposite party in C.C. No. 214/2013 on the files of the District Consumer Disputes Redressal Commission, Palakkad (for short “the District Commission”).  The 1^st respondent in both the appeals is the complainant before the District Commission.

          2.       It is contended by the complainant that while she was travelling from Delhi to Kerala, she developed an abdominal pain and fever and hence, she along with her husband consulted the 1^st opposite party at his residence on 28.01.2013.  The 1^st opposite party, after examination, advised the complainant to get admitted to the hospital of the 2^nd opposite party.  Accordingly, she was admitted to the hospital of the 2^nd opposite party on the very same day.  After admission, the duty nurse had, as per the direction of the 1^st opposite party, given an injection to the complainant. Due to the reaction of the injection, the complainant developed peeling of skin.  The complainant also started getting boils all over her body, which subsequently burst and her skin started peeling off.  The complainant contended that there was negligence on the part of the opposite parties in treating her.  On 05.02.2013, the complainant was shifted to Amala Institute of Medical Sciences, Thrissur where she was treated as inpatient till 09.03.2013.  The complainant prayed for granting compensation for the negligence on the part of the opposite parties.

          3.       The opposite parties entered appearance on receipt of the notice from the District Commission.  The 1^st opposite party filed version denying all the allegations in the complaint.  It is contended by the 1^st opposite party that the complainant had come to his clinic only in the afternoon on 28.01.2013 and at that time, she was found to be in a state of shock.  The history of the complainant revealed that she was travelling from Delhi to Kerala in a train and during the course of her journey, she developed high fever, headache, vomiting and erythematous rashes all over her body with blister formation at few areas.  Her symptoms became worse when she reached Ottappalam.  On examination, the complainant was found to have high temperature and low blood pressure and she was in a state of shock.  Considering the possibility of septicemia, the 1^st opposite party advised admission of the complainant to the hospital of the 2^nd opposite party for emergency care.  Accordingly, the complainant was admitted to the hospital of the 2^nd opposite party at 6p.m. on the same day. The medicines were administered to the complainant.  The blood investigation revealed that the total count of platelets was very low.  The dengue antibody result was negative.  Based on the blood investigation, the complainant was given antibiotics and supportive care including platelets transfusion. 

          4.       On 29.01.2013, blisters were found extended all over the body and provisional diagnosis of necrotising epidermolysis of an unknown aetiology was made and she slept well during the night.  The complainant and her bystanders were informed about the disease and the condition of the patient. The general supportive treatment with IV antibiotics was continued.  On 30.01.2013, the 1^st opposite party advised dermatological consultation as the general condition of the complainant was stable.  The Dermatologist had seen the patient and confirmed the disease as necrotising epidermolysis.  The renal status of the patient was assessed by the Nephrologist and there was no renal involvement.  Since the affected skin problem could take prolonged course to heal, the relatives of the patient preferred a reference to Amala Institute of Medical Sciences, Trissur.  Accordingly, on 05.02.2013, the patient was referred to the said hospital for further management.  The general condition of the patient at that time was stable.  The 1^st opposite party had exercised reasonable degree of skill, care and caution in the treatment provided and there was no negligence or deficiency in service on his part in this regard. Since there was no deficiency in service on the part of the 1^st opposite party, he is not liable to pay any compensation to the complainant. 

          5.       The 2^nd opposite party only adopted the version filed by the 1^st opposite party.

          6.       PW1 and PW2 were examined and Exhibits A1 series to A9 were marked for the complainant.  DW1 was examined and Exhibits B1 series were marked for the opposite parties.

          7.       After evaluating the evidence, the District Commission directed the opposite parties to pay an amount of Rs.5,00,000/-(Rupees Five Lakh only) towards the medical expenses incurred by the complainant along with Rs.1,00,000/-(Rupees One Lakh only) as compensation for the mental agony suffered by her with interest @9% per annum from the date of order till realisation.  The District Commission further directed the opposite party to pay Rs.5,000/-(Rupees Five Thousand only) as costs. 

          8.       Heard both sides.  Perused the records.

 9.   The learned advocates on both sides have advanced argument supporting their respective contentions.

          10.     It is not disputed that the complainant approached the 1^st opposite party on 28.01.2013 for consultation for her ailment.  It is also not disputed that as per the instruction of the 1^st opposite party, the complainant was admitted to the hospital of the 2^nd opposite party on the very same day.  It is admitted that the complainant was treated in the hospital of the 2^nd opposite party till 05.02.2013.  On that date, she was referred to Amala Institute of Medical Sciences, Thrissur where she was treated as inpatient from 05.02.2013 to 09.03.2013.

          11.     The contention of the complainant is that after admission of the complainant in the hospital of the 2^nd opposite party, the duty nurse had administered an injection to the complainant as per the direction of the 1^st opposite party and it was due to the reaction of the said injection that the complainant started getting boils all over her body,  which subsequently burst and her skin started peeling off and hence the complainant was entitled to compensation as there was deficiency in service on the part of the opposite parties in this regard.

          12.     PW1 is the husband of the complainant. PW1 stated that the complainant was admitted in the hospital of the 2^nd opposite party due to fever and headache and that she was not having any other disease at that time.  PW1 denied the statement in Exhibit B1(a) prescription that the complainant had fever, rashes and body pain for four days during her journey from Delhi.  However, PW1 admitted that Exhibit B1(a) was the prescription issued to the complainant by the 1^st opposite party on 28.01.2013.  Exhibit B1(a) would show that the complainant had fever, body pain and rashes (blisters) for four days prior to 28.01.2013, the date of Exhibit B1(a) prescription.  It was also mentioned in Exhibit B1(a) thus:- “rashes – red 2 days, blister formation”.  Exhibit B1(a) would show that  the complainant was travelling for four days prior to 28.01.2013.   She was also having fever, body pain, rashes and blisters on 28-01-2013 itself. 

13.     Even though PW1 pleaded ignorance about Exhibit B1(a)  prescription issued by the 1^st opposite party, when cross examined, he admitted the receipt of Exhibit B1(a) prescription. He also stated that the complainant had taken paracetamol at her residence as she had stomach pain after eating ‘biriyani’.  Exhibit A6 is the discharge summary of Amala Institute of Medical Sciences where the complainant was treated as inpatient from 05.02.2013 to 09.03.2013.  As per the history narrated in Exhibit A6, the complaint developed abdominal pain on 22.01.2013 while travelling from Delhi.  She took paracetamol and on the next day, she developed fever and rashes (red raised lesion over both forearm). Thus, it is clear from Exhibit B1(a) prescription and Exhibit A6 discharge summary that the complainant had fever, abdominal pain and rashes all over her body prior to her admission to the hospital of the2^ndopposite party on 28.01.2013.  PW2 is stated to be an expert in dermatology who treated the complainant at the Amala Hospital.  He also stated that, as per the records, the complainant was showing symptoms of TEN (Toxic Epidermal Necrolysis).  PW2 further stated that he could not state as to whether the disease was caused due to any drug allergy.  It is in the evidence of PW2 that the drug reactions had been reported as the cause in 80 to 95% of TEN cases.  PW2 further stated that 10% of TEN cases could be caused due to various factors such as environment, infections, disease etc.    PW2 stated that the complainant was showing symptoms of TEN even on 28.01.2013.  It was further stated by PW2 that in the first prescription, there was antibiotics.  He also stated that there was nothing wrong in the prescription issued on 28.01.2013. 

14.    There is absolutely no material before the Commission to indicate that the complainant developed pain, rashes and blisters over her body due to the administration of injection from the hospital of the 2^nd opposite party.  On the other hand, the evidence of PW2 and DW1 coupled with Exhibit B1(a) and Exhibit A6 discharge summary would establish that the contention of the complainant, that she developed rashes and blisters all over her body only after the administration of injection  by the duty nurse at the hospital of the 2^nd opposite party, as per the direction of the 1^st opposite party, cannot be sustained.  Therefore, the contentions in this regard cannot be accepted.

15.     The further contention of the complainant is that the complainant should have been admitted to the ICU for the treatment and since the complainant was not treated in the ICU, the disease was aggravated and consequently, there was deficiency in service on the part of the opposite parties in this regard. 

16.     PW2 stated in his examination-in-chief that the patients having symptoms of TEN would be normally treated in special wards.  In his institution, PW2 was having skin ICU.  PW2 further stated that in the other hospitals, there would be no such ICU. The evidence of PW2 would further show that when the patients having symptoms of TEN are admitted in the ward, there would be possibility of having infection.   It is clear from the evidence of PW2 that the patients having TEN symptoms would be treated in the ICU in his hospital to avoid the attack from infection.  The complainant herein was not admitted in the ICU.  However, the complainant was admitted in an isolated room and treated there.  Apart from that, there is no allegation that the complainant was affected by any infection due to the treatment of the complainant in the hospital of the 2^nd opposite party.  In view of the above, the contention of the complainant that she was not given treatment in the ICU cannot be sustained. 

17.     It has been contended by the complainant that the complainant was not referred to a dermatologist when it was realised that she was having skin problem and hence there was deficiency in service on the part of the opposite parties in this regard.  It is in the evidence of DW1 that when the complainant came to consult the 1^st opposite party, she was having signs and symptoms suggestive of septicemia.  The evidence of DW1 would further show that the complainant was treated with antibiotics and other supportive measures as per the accepted medical protocol. On 29.01.2013, blisters were found extended all over the body and provisional diagnosis of necrolysis epidermolysis of an unknown aetiology was made.  The complainant and her bystanders were informed about the condition of the patient. The general supportive treatment with IV antibiotics was continued.  On 30.01.2013, the 1^st opposite party advised dermatological consultation as the general condition of the complainant was stable. The evidence of DW1 coupled with Exhibit B1series would show that the Dermatologist had seen the patient and confirmed the disease as necrolysis epidermolysis. It was contended by the opposite parties that erythematous skin rashes would be suggestive of epidermolysis, which was a disease condition with a gradual prognosis and it required prolonged treatment.  The evidence of DW1 coupled with Exhibit B1series would further show that the complainant was given treatment as per the standard medical protocol.

18.   It appears from the records that immediately after the admission, the blood test, urine test and other investigations were done in the hospital, which was also admitted by PW1.  The platelets count was found to be 7,000 which was far short of the required quantity.  The required quantity of platelets count is stated to be in between 1.5 lakh to 4 lakh.  Since the platelets count was very low, platelets transfusion had been done immediately, which itself would indicate that the condition of the complainant was very serious when she was admitted in the hospital of the 2^nd opposite party.  PW2 also opined with reference to Exhibit B1(a) that there was nothing wrong in Exhibit B1(a) prescription issued on 28.01.2013.   PW2 further stated that the very low platelets count was indicative of dengue fever also.  The complainant had contended that the complainant and her relatives were informed that the complainant was suffering from dengue fever.  From the records, it is clear that since the platelets count was low, which could be indicative of dengue fever also as stated by PW2, the complainant and her relatives were informed accordingly. However, the result of blood test ruled out the possibility of having dengue fever.  The evidence of PW2 would indicate that the medical treatment given to the complainant was more or less the same as that of the medical treatment rendered at the Amala Hospital. 

19.     Exhibit B1 series (page 426 of the Lower Commission Record, for short “LCR”) would show that on 31.01.2013, the dermatologist of the 2^nd opposite party examined the complainant and diagnosed that the complainant was having the symptoms  of Toxic Epidermal Necrolysis (TEN).  Since the complainant was in a very critical condition when she was admitted in the hospital, as is evident from the evidence of DW1 and Exhibit B1 series, DW1 being a Physician, treated the complainant in accordance with the standard medical protocol to save her life, by giving antibiotics, platelets transfusion and other supportive measures.  The consultation by the Nephrologist was also done on 31.01.2013 and it was made sure that the complainant had no renal problem.  It is in the evidence of DW1 and Exhibit B1 series that the complainant was stable on 31.01.2013. Therefore, the consultation by the dermatologist was made on that date. Thus, from the evidence of DW1, PW2 and Exhibit B1 series, we are convinced that the 1^st opposite party had given medical treatment to the complainant in accordance with the standard protocol.  Since DW1 was concentrating on saving the life of the complainant, the consultation by the dermatologist was deferred till the complainant was stable on 31.01.2013. Having gone through the relevant inputs as discussed above, we are satisfied that DW1 had followed the standard protocol for the treatment of the complainant and he referred for consultation by the dermatologist only after completing the other investigation and examination.  Even PW2, who was the doctor who treated the complainant in the Amala Institute of Medical Sciences, did not state that the medical treatment given by DW1 was not in accordance with the standard protocol for the treatment of the disease. The upshot of the above discussion is that the contention of the complainant that the complainant was not referred to a dermatologist when it was realised that she was having skin problem, is unfounded on facts.

20.     It has been further contended by the complainant that the complainant was not referred to a hospital having higher facilities even though the bystanders and relatives of the complainant requested for doing so, as the patient was not having improvement as expected and in the said circumstances, there was deficiency in service on the part of the opposite parties in this regard. Exhibit B1(d) would show that the patient was having poor prognosis.  It is further clear from Exhibit B1(d) that the condition of the patient was explained to the bystanders and they did not want to take the patient to a higher center. The date of Exhibit B1(d) is 02.02.2013.  However, the patient was referred as per the writings in Exhibit B2 series (page No. 429 of LCR) to the Amala Institute of Medical Sciences for further management on 05.02.2013, as prolonged treatment was necessary for curing the disease of the complainant. The reference to the Amala Institute of Medical Sciences was made as the relatives of the patient preferred the said Hospital.  It is to be noted that the patient was treated for nine days in the 2^nd opposite party hospital whereas the patient was treated from 05.02.2013 to 09.03.2013 in the Amala Institute of Medical Sciences, which would show that the type of disease, the complainant had, required much time for cure.  PW2 also stated in his evidence that for such a disease, the immediate cure could not be expected.  PW2 further stated that in Kerala usually people do not die of such a disease. It is clear from the above discussion that the contention in this regard also cannot be sustained.

21.    We may now go through the authorities on the point.

22.   In Jacob Matthew v. State of Punjab, 2005 (6) SCC 1 : AIR 2005 SC3180, a three Judges Bench of the Hon’ble Apex Court held that to establish liability on the basis of medical negligence, it must be shown (1) that there is a usual and normal practice; (2) that the defendant has not adopted it; and (3) that the course in fact adopted is one no professional man of ordinary skill would have taken had he been acting with ordinary care. So long as it can be found that the procedure which was in fact adopted was one which was acceptable to medical science as on that date, the medical practitioner cannot be held negligent merely because he chose to follow one procedure and not another and the result was a failure.

23.   The Hon’ble Apex Court in M.A Biviji v. Sunita and Ors., 2024 (2) SCC 242 : AIR 2023 SC 5527, followed the landmark pronouncement in Jacob Matthew v. State of Punjab(supra) and held that a medical practitioner would be held liable for negligence only in circumstances when their conduct falls below the standards of a reasonably competent practitioner.

24.   The Hon’ble Apex Court in M.A Biviji v. Sunita and Ors (supra) further held that the complainant should be able to prove a breach of duty and the subsequent injury being attributable to the aforesaid breach as well, in order to hold a doctor liable for medical negligence. On the other hand, doctors need to establish that they had followed reasonable standards of medical practice.

25.  Having gone through the relevant inputs, we are of the considered view that the complainant could not establish by the yardstick of preponderance of probabilities that there was any deficiency in the medical service given to the complainant by the opposite parties. In this case, the complainant could not prove any breach of duty on the part of the opposite parties.  The complainant could not also prove any injury being attributable to any breach on the part of the opposite parties.  PW2 might have taken a different mode of treatment.  However, in the absence of any material to show that DW1 had adopted the mode of treatment against the protocol, DW1 cannot be held negligent merely because DW1 had adopted the mode of treatment different from the mode of treatment adopted by PW2. The evidence on record as discussed above would establish that DW1 had followed reasonable standards of medical practice in this case. In the said circumstances, the opposite parties cannot be held liable for medical negligence in view of the ratio laid down by the Hon’ble Apex Court in Jacob Matthew v. State of Punjab (supra) and M.A Biviji v. Sunita and Ors (supra).

26.     The District Commission did not consider the above aspects.  In view of the above, the finding by the District Commission, that there was negligence on the part of the opposite parties, cannot be correct.  Consequently, the order passed by the District Commission is liable to be set aside.  Accordingly, we set aside the same.

In the result, both the appeals stand allowed, order dated 25.01.2016 in C. C. No. 214/2013 passed by the District Commission stands set aside and the complaint stands dismissed.  In the circumstances of the case, there is no order as to costs.

The statutory deposit made by the appellant in both the appeals shall be refunded to the respective appellant, on proper acknowledgment. 

JUSTICE B. SUDHEENDRA KUMAR: PRESIDENT

                                                                  AJITH KUMAR D. : JUDICIAL MEMBER

                                                                     RADHAKRISHNAN K.R.     : MEMBER

SL