Per Shri Dhanraj Khamatkar, Hon’ble Member
This is an appeal filed by the appellant against the order dated 25/02/2010 of District Consumer Forum, Central Mumbai in consumer complaint No.102/2008.
The facts in brief can be summerised as under :-
Respondent/org. complainant/wife of deceased Suryaprakash Shivshankar Rai had filed complaint alleging that her deceased husband went to the Clinic of O.P. on 01/09/2007 and the appellant/org. O.P. had administered injection and prescribed some tablets. On the next date i.e. on 02/09/2007 in the early hours, there were rashes on the body of the deceased. He was vomiting and hence, he was admitted in the Lokmanya Tilak Municipal Hospital (Sion Hospital), Mumbai on 02/09/2007 at 7.20 a.m. When deceased was in the Sion Hospital, he was having a problem of breathing, he was continuously vomiting and he has urinary problem also. His eyes were reddish and the blood pressure was decreasing, his tongue and fingers were bluish. He died on 02/09/2007 at 3.30 p.m. She alleged that death of her husband was due to medical negligence of the org. O.P./appellant herein. Hence, she filed consumer complaint praying compensation of `19,96,000/-. Forum below after hearing both the parties has allowed the complaint and directed the O.P./appellant to pay compensation of `15 Lakhs and cost of `5,000/- within a period of 45 days, failing which interest of @ 10% p.a. It is against this order that the present appeal is filed.
Learned Counsel appearing for the appellant contended that the complaint is false and vexatious. He has challenged the order on the ground that the documents annexed to the complaint are xerox copies and which are claimed to be original and contended that these documents constitutes secondary evidence which are not admissible in evidence unless they are proved by production of original or in the alternatively oral evidence of the complainant. He further contended that the complainant has not filed Histopathology Report and Chemical Analysis Report mentioned in the Autopsy Report. In support of these contentions, he placed reliance on –
(i) 2003 (8) SCC 745 – Narbadevi Gupta V/s. Birendra Kumar Jaiswal & Anr.;
(ii) 2007 (3) All MR 823(SC) – Smt. J. Yashoda V/s. Smt. K. Shobha Rani;
(iii) 2007(1) All MR 313 (Bom) – Ramdas B. Chaudhary V/s. Anant Chunilal Kate;
(iv) 2008 (3) All MR 629 (Bom) – Ganpat Pandurang Ghongade V/s. Nivruti Pandurang Ghongade;
(v) AIR 2008 (Bom) 81 – Bank of India V/s. Allibhoy Mohd. & Ors.
The Learned Counsel further argued that a cursory glance of the record in this complaint would establish that none of the conditions which have been laid down in the aforesaid decisions of the Hon’ble Supreme Court of India and High Court, Mumbai have been complied with. The Learned Counsel further argued that in the present case, it has not been established that the patient met his death immediately or as consequence of medicine administered by the O.P./appellant. The Learned Counsel further relied on the judgement in the case of Dr.Martin D’Souza V/s. Mohammed Asfaq decided by the Apex Court and contended that the Forum below has not taken medical opinion of the doctors before proceeding in the case. The Learned Counsel further stated that there is no iota of evidence laid by the complainant to prove that there is direct relationship between medicine prescribed by the O.P. and death of the patient. Even in the Postmortem Report, before giving actual cause of death as ‘Acute Febrile illness’, nowhere, it is stated that the actual febrile illness was caused due to medical treatment given by the O.P. Complainant has not established her case even on the principle of “Balance of Probabilities”.
The Learned Counsel further contended that the drugs prescribed by the appellant are not unknown exotic drugs, but known drugs which are used for treatment of fever. The Learned Counsel further argued that O.P./appellant is a ‘Homeopathy doctor’ and the system of Homeopathy is based on “Like cures Like”. Thus, prior to applying this principle to the patient suffering from fever, cough & cold, the O.P. was to give him medicine, which relieved him of his fever which could only be done immediately by prescribing allopathic medicine. He denied the fact that he had given any injection to the patient. In the Sion Hospital, deceased was given platelet transfusion and platelet transfusion itself is not free from any risk. Further the words used in the autopsy report under the head “cause of death’ that is “Intra Pulmonary Haemorrhage due to Acute Febrile illness in a known case of alleged treatment by the practitioner”, do not by themselves prove any medical negligence. The Hospital staff may have led the doctor to opine and used the words “in a case of alleged treatment by the practitioner”. The complainant has time and again represented that “Nimesulide” is banned in India and no doctors in India prescribed “Nimesulide”. However, this is not the fact. The appellant has not administered any injection to the deceased as alleged by the complainant. In the case papers of Sion Hospital, which is attached by the complainant, word “DSS” stands for Dengue Shock Syndrome. There are words used are “DSS/Leptospirosis”, “Malaria/Leptospirosis”. The claim of the complainant that the information furnished by the patient after his admission to the Sion Hospital amounts to a dying declaration is erroneous. Heavy reliance is placed by the complainant on the decision of the Supreme Court in the case of Poonam Verma V/s. Ashwin Patel & Ors. in support of her case. There is no quarrel that the action of the Medical Practitioner practicing a particular system of medicine cannot enter the area of another practitioner. Any infraction of this general principle amounts to medical negligence. Thus, on the basis of fact discussed in the Poonam Verma’s case, O.P. may prima-facie be termed as having committed an act of medical negligence. However, this medical negligence is not directly attributable to the death of complainant’s husband. The appellant was forced “in the interest of the patient” to prescribe medicine from the allopathic system. His action cannot be faulted against the primary duty of a doctor to alleviate suffering of the patient as quickly as possible. Therefore, Learned Counsel had prayed that the appeal may please be allowed and the order of the Forum below may please be quashed and set aside.
On behalf of respondent/org. complainant, Learned Counsel had argued that deceased husband of the respondent/org. complainant had died because of wrong prescription given by the appellant and it amounts to a medical negligence. The order passed by the Forum below is as per the facts and circumstances of the case and hence may be confirmed.
Admittedly, deceased husband of the respondent/complainant had gone to the Clinic of the appellant and appellant is a doctor of the Homeopathy. Appellant had prescribed medicine, tablets paracetamol, tablet Nimesulide and tablet CPM and given one injection to the patient. Prescription given by the appellant is at Exhibit-A. Appellant has admitted that he has prescribed tablet Paracetamol, tablet Nimesulide and tablet CPM. However, denied that he has given any injection to deceased husband of the respondent/complainant. On the prescription, appellant himself has written the injection given to deceased husband and hence, his simple denial cannot be relied with. In the early hours of 2nd September 2007, on the body of deceased there were rashes and he started vomiting and he was admitted in the Sion Hospital. On the case papers of the Sion Hospital, it is endorsed that patient is a case of fever with chills and dark colour rashes all over the body after eating medicine from private doctor today night by Dr.Bhusari, Antop Hill. He was admitted in the hospital at 7.20 a.m. It is also written in the case papers that – ‘patient apparently well two days back, taking treatment in the form of tablets and injection from Dr.Bhusari, Antop Hill. No relief. Noticed petechial rashes all over the body around 4.00 a.m. on 02/09/2007’.
No doubt this is a history taken by the hospital at the time of admission of the patient and the information is given by the patient. Appellant challenged this description stating that deceased was aware that he was going to die. This cannot be relied with. At the time of admission, deceased was not aware that he is going to die. Whatever treatment he has taken from the appellant, he has narrated to the doctors at the time of his admission. Appellant had contended that in the case papers of the Sion Hospital, there are words “DSS” which means “Dengue Shock Syndrome / Leptospirosis, Malaria / Leptospirosis”. The patient was administered platelet transfusion and normally, in Leptospirosis patient suffered low platelet count. Deceased was brought in the Hospital on 02/09/2007 around 7.00 a.m. and he had died on the same day at 3.30 p.m. So, patient was in the hospital from 7.20 a.m. till his death at 3.30 p.m. During the period he was given a platelet transfusion. Patient being a serious, he was shifted to Intensive Care Unit. Doctors in the hospital tried their best to treat deceased. From the aforesaid facts, it is clear that when the patient went to the Clinic of appellant, he was all right. O.P./appellant had given one injection and prescribed tablets and after that, complications started. It is a fact that appellant is a Homeopathic doctor and he has prescribed allopathic medicines. In the notes of arguments, he admitted that at the most it may amount to a medical negligence. As regards, medical opinion filed by respondent/org. complainant, org. complainant had asked permission of the Forum below to file medical opinion and it was challenged by the appellant and after hearing both the parties, Forum below had permitted to file a copy of medical opinion. Medical opinion is given by Dr.Bangal, M.D. in forensic medicine, DNB (Forensic Medicine ) and LLB also. In his opinion, he has categorically opined that-
“Dr.S.E. Bhusari is a Homeopathic practitioner. Still he prescribed allopathic medicines and injections to the patient. The pharmacology of allopathic medicine is very different from that of Materia Medica of homeopathy. That the cross practice in itself is illegal is confirmed by the medical councils as well as the Supreme Court of India.”
Appellant had not filed any authority rebutting the medical opinion. As regards authorities quoted by the appellant regarding admissibility of evidence, it is clear that proceeding under the Consumer Protection Act, 1986 is a summery proceeding and as per provisions of the Act, evidence is laid on the affidavit. Respondent/org. complainant has laid her evidence on the affidavit and we do not find any wrong on relying on the evidence filed by the complainant/respondent. In view of provisions of Consumer Protection Act, 1986, authorities quoted by Learned Counsel are not relevant. As regards, non production of Histopathology and Chemical Analysis Report, complainant has asked for said report under the Right to Information Act. However, she could not get it. However, postmortem report is on the record and it is stated that cause of death as “Intra Pulmonary Haemorrhage due to Acute Febrile illness in known case of alleged treatment by the practitioner”. The Apex Court in Civil Appeal No.8856/1994 decided on 10/05/1996 has held that –
“A. Indian Medical Council Act, 1956; Bombay Homeopathic Practitioner Act, 1959; and Maharashtra Medical Council Act, 1965 – A combined reading of these Acts indicates that a person who is registered under the Bombay Homeopathic Practitioners Act, 1959, can practice Homeopathy only. (para 36)
B. Medical Practitioner – Homeopathic doctor – Registered under the Bombay Homeopathic Practioners Act, 1959 treating a patient of fever and typhoid under Allopathic system prescribing Allopathic medicines a patient dying within two weeks.
Held : There was negligence per se on the part of the doctor - Such a doctor is under a statutory duty not to enter the field of any other system of medicine. Allopathy to be precise – His conduct amounted to an actionable negligence. (para 49).
C. Medical Practitioner registered under the Bombay Homeopathic Practitioners Act, 1959 – Treating a patient by Allpathic System trespasses into a prohibited field – Liable to be prosecuted under section 15(3) of the Indian Medical Council Act, 1956. (para 41).
D. Tort – Negligence as a tort is the breach of a duty caused by omission to do something which a reasonable man would do or doing something which a prudent and reasonable man would not do. (para 14).”
Reference of this case is relevant in the present case.
Appellant has drawn our attention to the observations of the Apex Court in the case of Dr.Martin F. D’Souza V/s. Mohammed Ashfaq, wherein the Lordship held that the Consumer Courts or Criminal Courts should refer the matter to the Committee of the doctors specialized in the field. In the instant case, opinion of medical expert has been filed by respondent/org. complainant and hence, observation of the Apex Court has been complied with.
As regards compensation, complainant had given statement of claim and considering the statement of claim, Forum below has awarded the compensation. Forum below after considering the facts and circumstances and evidence has passed the order and we do not find any reason to interfere in the same. We hold accordingly and pass the following order :-
-: ORDER :-
1. Appeal stands dismissed.
2. The order passed by the Forum below is confirmed.
3. No order as to costs.
4. Copies of the order be furnished to the parties.
