Kanaiyalal Ramanlal Trivedi and others vs. Dr. Satyanarayan Vishwakarma and another 1998 CCJ 690

Gujarat State Consumer Disputes Redressal Commission, Ahmedabad

The complainants have filed this complaint for recovery of compensation of Rs. 5,00,000/- from opponents on the ground that Dakshaben, wife of complainant No. 1 ('complainant' for short) and mother of complainant Nos.2 and 3 had died on account of negligence of opponents in giving her medical treatment.

The allegations on which the claim made in the complaint is based briefly stated are as follows. Dakshaben had severe molar toothache and there was resultant swelling. She was, therefore, taken for treatment of opponent No.1. Opponent No. 1 is alleged to have assured Dakshaben that there was no cause to worry and that she would recover within few days. The treatment of opponent No. 1 was started on 23.4.1993 and it is alleged that opponent No.1 gave injection on left gluteal region or buttock and some tablets. On the next day i.e., 24.4.1993 when she was called for follow-up treatment, there was no relief from toothache. There was pain and tumor at the site of the injection. When Dakshaben visited opponent No.1 he gave her another injection and tablets and told her not to worry and have confidence in him. There was also no relief from molar toothache. Dakshaben had also difficulty in walking and tumor had increased in size. On 25.4.1993 opponent No.1 gave third injection. It is the case of the complainant that Dakshaben was following the instructions given to her by opponent No.1 and taking treatment as advised. However, there was no change in her condition. According to the complainant, Dakshaben took opponent No.1's treatment for 18 days. Opponent No.1 then told Dakshaben that since he was not a dentist, he did not know anything abount dental disease. Therefore, after paying fees of opponent No.1 Dakshaben was taken to Dr. Vithalbhai Patel, who advised that it was necessary to operate upon Dakshaben. Since there was no facility for administering anaesthesia, Dr. Patel expressed his inability to operate Dakshaben and advised the complainant to take Dakshaben to a hospital. Thereafter Dakshaben was taken to Sadanand Hospital. Opponent No.2 is medical officer of the hospital. It is stated that Dr. Smitaben Joshi was the medical officer of the hospital. Dakshaben was admitted to the hospital and after examining her doctors at the hospital informed complainant No.1 that her condition was serious. Complainant No.1 prepared note regarding the previous treatment given to Dakshaben at the request of the doctors of the hospital and gave it to them. The doctors started medical treatment and assured complainant No.1 that Dakshaben would recover within 15 days. According to the complainant, Dr. Smita Joshi and Dr. R.B. Patel gave medical treatment to Dakshaben and also performed operation on her. Dakshaben, however, did not recover and on 6.6.1993 opponent No.2 advised complainant No.1 to remove Dakshaben to the Civil Hospital.

Dakshaben was admitted to the Civil Hospital on 7.6.1993 and the doctors who treated her told complainant No.1 that there was no cause to worry and that Dakshaben would recover though it would take sometime. Two-three days after Dakshaben was admitted to the hospital, doctors of the Civil Hospital went on strike and it was suggested to complainant No.1 on 13.6.1993 to remove Dakshaben to another hospital. June 13 was Sunday and therefore, no discharge could be given. When complainant No.1 was taking steps to see that Dakshaben was discharged from the hospital, Dakshaben died at about 11.35 a.m.

The complainants have alleged that Dakshaben died due to negligence on the part of the doctors giving her medical treatment and they are liable to pay compensation of Rs. 5,00,000/- as stated in the complaint. Opponent No.1 has denied the allegations made by the complainants and submitted that there was no negligence in giving medical treatment to Dakshaben whom he treated for only three days, i.e., 23rd, 24th and 25th April, 1993. It is submitted that he gave proper treatment to her and there was no negligence in giving her treatment. The allegations made by the complainants regarding treatment are not true. It is submitted that after Dakshaben took treatment on 25.4.1993, she had not gone to him for treatment. According to opponent No.1 he had advised complainant No.1 and Dakshaben to consult a specialist in case pain did not subside within three days. Opponent No.1 has stated that he does not know anything about the treatment taken by Dakshaben after 25.4.1993.

Dr. Smita Joshi and Dr. R.B. Patel have filed reply or written statement as opponent No.2. They have also denied the allegations of negligence made by the complainants and stated that Dakshaben was given free medical treatment in Sadanand Hospital and, therefore, the complaint against opponent No.2 is not maintainable under the Consumer Protection Act. Dr. Smita Joshi and Dr. R.B. Patel have stated that they gave best possible treatment to Dakshaben. Complainant No.1was advised to take Dakshaben to general hospital where all facilities and services to team of doctors were available. Complainant No.1 to save money did not take his wife to the general hospital and continued to take free treatment from Sadanand Hospital. Details of the treatment given by Dr. Joshi and Dr. Patel are stated in the reply but we do not consider it necessary to set out these details. In short, the defence of Dr. Joshi and Dr. Patel is that there was no negligence on their part in giving medical treatment to Dakshaben.

Opponent No.1 has stated in his written statement that he is a qualified doctor. He was, therefore, called upon to produce documents relating to his qualifications. Exh. 25 which purports to be registration certificate issued in favour of opponent No.1 by West Bengal Medical Union and Post Graduate Union of India, Calcutta, was produced and it is relying on this certificate that it is stated by opponent No. 1 that he is a qualified doctor. There is absolutely no evidence on record as to what is this body called West Bengal Medical Union and Post Graduate Union of India and whether it is a recognized institution by Government of India or any State Government or Indian Medical Council or any other statutory body. It is not very clear what is this integrated medical system for which the opponent No.1 is granted registration. It was stated that this integrated medical system is of homoeo-ayurvedic medicines. Details of this system are not placed on record. It is not known education and training was imparted to opponent No.1 under this so-called system. As the expression homoeo-Ayurvedic system itself suggests, no training or education was given for allopathy system. There is nothing on record to show that the opponent No.1 is a registered medical practitioner who is allowed to practise. Considering the evidence on record we have no hesitation in holding that opponent No.1 is not qualified to practise as a doctor and in any case he cannot practise in any system of medicine except, perhaps, homoeopathy and ayurved. In other words, he is absolutely unqualified to prescribe and administer allopathic medicines or give allopathic treatment. Unless a person possesses qualification recognized and approved by Indian Medical Council for practicing allopathy, he cannot practise as allopathic doctor and prescribe medicines or give treatment as such doctor.

There is nothing on record to show that the complainant had refused or expressed inability to pay the hospital charges or fees of the doctors. Dr. Joshi and Dr. Patel have in their written statement stated that Dr. Patel is entitled to fees for examining and operating patients. It is no doubt stated that the complainant was not charged any fees and she was given free treatment on humanitarian ground. However, the fact remains that all patients in the hospital are not given free treatment. Charges and fees are recovered from the patients who take treatment in the hospital as indoor/outdoor patients. It is not explained as to why Dakshaben was given free treatment. It is also important to bear in mind that there is no cross-examination of the complainant and he has not been asked whether free treatment was given to Dakshaben at the hospital. There is no statement made by the complainant that Dakshaben was given free treatment in the hospital. It is, therefore, difficult to believe that Dakshaben was given free treatment in the hospital. We find it difficult to believe the allegation of Dr. Joshi/Dr. Patel to the effect that complainant did not want to remove Dakshaben to a general hospital because he was getting free treatment in the hospital. Patients who are unable to pay are given free treatment in the general hospitals run by the State Government, Municipal Corpirations, and other local bodies. Therefore, if the complainant was not in a position to pay for the treatment of Dakshaben, Dakshaben would have been given free treatment at any general hospital. It would further appear from the written statement filed on behalf of opponent No.2 that all facilities including consultation of surgeons of different branches were available in the hospital on payment. There was, therefore, no reason for the complainant to remove Dakshaben to any other hospital. As already observed above, no question has been asked to the complainant about his inability to pay fees/charges or about free treatment being given to Dakshaben at the hospital. It would appear that it is only to disown the responsibility about the serious condition of Dakshaben even after she was operated that the story about the complainant refusing to remove Dakshaben to other hospital in spite of requests made to him is built up. The fact that opponent No.1 was kept present in the hospital on 14.5.1993 when Dakshaben was under treatment of Dr. Patel indicates that Dr. Patel knew opponent No.1 very well and having regard to serious condition in which Dakshaben was that opponent No.1 was asked to remain present in the hospital. Both Dr. Patel and opponent No.1, it seems, were worried about the serious condition of Dakshaben. In absence of case papers and documentary evidence regarding treatment given to Dakshaben in the hospital, it would appear that Dr. Patel had also not given proper, adequate or standard treatment to Dakshaben and he was trying to cover up negligence of opponent No.1.

Opponent No. 1's management of Dakshaben's case was wrong, harmful and dangerous. He has not produced any evidence in support of the treatment nor has he justified his treatment. No medical literature has been produced which would show that the treatment which opponent No.1 have to Dakshaben was treatment which a doctor qualified in allopathy would give. So far as opponent No.1 is concerned, he was not at all qualified to give allopathic treatment to Dakshaben. He did not know what would be the reaction or consequences of the treatment which he was giving to Dakshaben. As already observed above, his prescribing and giving allopathic treatment by itself establishes his negligence in giving medical treatment to Dakshaben. So far as Dr. Smita Joshi is concerned, she seems to have given treatment to Dakshaben as advised and instructed by Dr. Patel. She and Dr. Patel have, however, not produced the relevant case papers relating to Dakshaben. There is no satisfactory evidence on record as to come to the conclusion that Dr. Joshi and Dr. Patel had managed Dakshaben's case according to the standard medical practice. If what Dr. Joshi and Dr. Patel have stated is true they had requested the complainant to remove Dakshaben to a general hospital. If that be so, then why Dakshaben was treated as indoor patient from 10.5 to 6.6.1993? If what Dr. Patel has stated is true it would seem that he was not confident about treating Dakshaben. He, therefore, should not have continued to treat her till 6.6.1993 and allowed her condition to deteriorate further. The Commission, in the light of backdrop of facts, held that, in our opinion Dr. Joshi and Dr. Patel and the hospital were grossly negligent in giving medical treatment to Dakshaben. By the time Dakshaben was taken to the Civil Hospital, she was beyond cure. She died in the Civil Hospital within one week. In our opinion, there is sufficient evidence on record to hold the opponent No.1, Dr. Joshi, Dr. Patel and the hospital guilty of negligence or in any case deficiency of service in giving medical treatment to Dakshaben and it was on account of their negligence that Dakshaben ultimately met with her death. They are, therefore, liable to pay compensation to the complaints.

In continuation, the Court held that it would be appropriate to quantify compensation on the same principles on which compensation is awarded in fatal cases of motor accidents. There is no evidence on record to show that deceased Dakshaben was having independent source of income. We, therefore, assume that she was a housewife. The complainant, i.e., husband of Dakshaben was 35 years old in 1993. Therefore, dakshaben must be of same age or less than that. The value of service which Dakshaben was rendering to her family could be safely estimated at Rs. 1,500/- per month or Rs. 18,000/- per annum. Deducting one third for personal expenses or value of services to herself the benefit of her services which was available to the complainants could be estimated at Rs.1,000/- per month or Rs. 12,000/- per annum. Having regard to the age of Dakshaben proper multiplier would be 15 to work out the compensation payable to the complainants. If so worked out, the compensation payable to complainants would come to Rs. 1,80,000/-. To this compensation Rs. 20,000/- will have to be added for loss to estate. Thus, the total compensation payable to the complainants would come to Rs. 2,00,000/-. In our opinion, opponent No.1, Dr. Smita Joshi, Dr. R.B. Patel and Sadanand Hospital are jointly and severally liable to pay to the complainants Rs. 2,00,000/- together with 12 per cent interest from the date of the complaint and costs of Rsl 5,000/-.

RECENT COPRA JUDGEMENTS

Jayendra Maganlal Padiya vs. Dr. Lalit P. Trivedi and others 1998 CCJ 496

Gujarat State Consumer Disputes Redressal Commission, Ahmedabad

Complainant, who is father of Hiren, a minor aged about 12 years at the time of filing of this complaint, has filed this complaint for recovery of total compensation of Rs. 9.79,500 from the opponents on the ground that they were negligent in g the opponents on the ground that they were negligent in giving medical treatment to Hiren. At a later stage the complainant enhanced the claim for compensation to Rs.20,00,000/-.

Hiren had fever on 26.2.1990 and therefore complainant consulted opponent No.1, his family physician. Opponent No.1 examined Hiren and prescribed medicine for three days. Hiren took treatment for three days but the fever did not subside and his weakness increased. There was swelling on his lips. The complainant, therefore, again consulted opponent No. 1 who after examining Hiren gave medicine for application on lips and other tablets. In spite of taking medicine as prescribed by opponent No.1 there was no change in the condition of Hiren and there were lesions both inside and outside his mouth. Opponent No.1 on examining Hiren again diagnosed that Hiren was suffering from measles and started giving treatment for measles. It is submitted that complainant had pointed out to opponent No.1 that Hiren was already vaccinated for measles and, therefore, he was not likely to suffer from measles . Opponent No.1, however, told the complainant that failure of vaccination is not uncommon and that he had no doubt that Hiren was suffering from measles. Thereafter medical treatment was continued as advised by opponent No.1 but there was no improvement in the condition of Hiren. Lesions and rash spread to other parts of the body and Hiren had become so weak that he could not even get up from bed. Opponent No.1 was, therefore, requested to examine Hiren at complainant's house. Opponent No.1 suggested to consult opponent No.2, who is pediatrician. Opponent No.2 after examining Hiren and discussing his case with opponent No.1 diagnosed that Hiren was suffering from measles. He, however, advised to remove Hiren to Navalben Maniram Virani Hospital ('Hospital' for short), opponent No.4 to which opponent No.2 was attached as pediatrician. Opponent No.2 wrote a note to the hospital and Hiren was admitted to the hospital at about 11.30 a.m. on 2.3.1990.

It is the case of the complainant that after his admission to the hospital Hiren was treated under the instructions of opponent No.2. The treatment was on the basis that Hiren was suffering from measles. However, the rash, which had spread all over the body became intense and condition of Hiren deteriorated. The complainant, therefore, requested opponent No.2 to give proper treatment or consult other specialist or expert. It is submitted that it was only in the afternoon of 3.3.1990 that Hiren's case was referred to Dr. Vinod Pandya, E.N.T. surgeon.

Dr. Pandya, after examining Hiren and considering the history of his case, diagnosed the case of Hiren as not of measles but of Stevens Johnson's Syndrome reaction ('SJS' for short) on account of sulpha drug which was administered to him. Dr. Pandya is stated to have said that SJS was beyond control. Thereafter Hiren was given treatment for SJS. On the same day, i.e., 3.3.1990 at about 10 p.m. dermatologist, Dr. B.C. Kamdar, was called to examine Hiren. He also expressed surprise as to how Hiren's case was diagnosed as that of measles. According to Dr. Kamdar, there was no symptom of measles and wrong treatment was given. The complainant has stated that Dr. Kamdar had opined that SJS reaction was in the last stage and he started treatment for SJS saying that it was given only to take chance. By the time treatment for SJS was started the whole body was covered with rash or lesions. The complainant has submitted that on 14.3.1990, opponent No.3 who is an ophthalmic surgeon was called to give treatment to Hiren to save his eyes from SJS reaction. Opponent No.3 gave opinion that his eyes were normal but as a matter of precaution it was necessary to give ordinary treatment.. The grievance of the complainant is that opponent No.3 did not prescribe steriod drops which were necessary to prevent permanent damages to the eyes. Hiren's tear glands were affected during the time he was under treatment of opponent No.3. According to the complainant, it was on account of negligence on the part of opponent No.3 that there was permanent damage to the eyes of Hiren and his vision is impaired. It is alleged that Hiren could not even keep his eyes open. However, all the time opponent No.3 told the complainant that there was nothing to worry about and that the eyes of Hiren were normal. It is stated that according to opponent No.3 Hiren was suffering from only photophobia. Hiren was ultimately discharged from the hospital on 10.4.1990.

Thereafter the complainant had consulted Dr. Vijay Maheshwari, ophthalmic surgeon, attached to the Civil Hospital at Rajkot and Dr. Mathur attached to the Civil Hospital at Ahmedabad. The medical opinion was that Hiren's tear glands were permanently damaged and only medicine which can be of some help to Hiren was artificial tear drops and eye ointment. The medicines which were suggested or prescribed are not available in India.

On the above allegations it is submitted that on account of negligence on the part of opponent No.s 1 to 3 and the hospital, Hiren's vision is permanently impaired and has to lead a disabled life. Hiren is not in a position to do his daily chores without help. Had Hiren's case not been diagnosed as that of measles and had treatment for SJS been given in time, Hiren would have completely recovered and he would not have suffered from any disablement. It was thus on account of negligence of the opponents that Hiren finds himself in helpless condition. The complainant has, therefore, prayed for compensation as stated above.

Written statement of opponent No.1 is at Exh. 22. Besides raising technical objections regarding maintainability of the complaint under Consumer Protection Act, opponent No.1 has denied the allegations made against him. He has admitted that Hiren was brought to him on 26.2.1990 and on examination he found that he had history of fever, cold and cough. He, therefore, prescribed bactrime tab lets which contain long acting sulpha known for curing fever and infection and dispensed paracetamol and C.P. maleate tablets. According to opponent No.1, in the past also he had prescribed sulpha drug to Hiren and he never had any reaction. He had prescribed medicines for three days. Hiren was again examined by him on 28.2.1990 and at that time he noticed,(1) koplic's spots, (2) few rashes on the face, (3) red eyes, and (4) congestion in the chest. According to opponent No.1, all these symptoms were suggestive of measles coupled with brancho pneumonia.

The hospital has, by its written statement denied the allegations of negligence made by the complainant. It is submitted that the hospital has engaged specialists in different branches and treatment to patient is given as advised by these specialists or experts. In case of Hiren also treatment was given to him as advised by pediatrician and ENT surgeon, dermatologist and ophthalmologist. Hiren was given proper treatment and there was no negligence on the part of the hospital as alleged by the complainant. Opponent No.4 has also, therefore, prayed for dismissal of the complaint.

The question which the Commission was called upon to consider is whether there was deficiency of service on the part of opponent No.1 in diagnosing and giving treatment to Hiren. "Deficiency' is an expression of wider import than 'negligence'. An Act or omission which may not amount to negligence may amount to deficiency. Negligence in rendering service is thus more serious thing than deficiency in rendering service. However, in the instant case, having regard to the facts and circumstances of the case and in the light of the medical literature, opponent No.1 cannot be held guilty of either negligence or deficiency in service. Opponent No.1 did what he was expected to do according to the standard medical practice. He was not an expert or specialist but a general medical practitioner. When he felt the need to consult pediatrician he did not hesitate to suggest such consultation. In taking this view, we are not in any way influenced by the opinions expressed by Medical Associations which are placed on record the Commission noted.

However, the question still remains as to what is the extent of liability of opponent No.2. The complainant has submitted that as a result of the negligence or deficiency in service shown by opponent No.2, his son Hiren suffers from permanent disability. Tear gland of Hiren is permanently damaged and his eye has become dry for ever. Hiren has, thus, become almost totally blind and he is not in position to do his daily chores without help and he would not also be able to earn his livelihood. According to the complainant, condition in which Hiren finds himself is attributable to the negligence of the opponents including opponent No.2. Now, the question is whether opponent No.2 could be held liable for the permanent disability from which Hiren suffers as urged by the complainant. After Hiren came under the treatment of opponent No.2, there was at least a delay of one day in diagnosing Hiren's ailment as SJS and giving him steroid treatment and local application on skin. The question is how far this delay has contributed to the condition in which Hiren finds himself.

It would, therefore, appear that before any damage was done to Hiren's eyes, he came under the treatment of ophthalmologist. However, opponent, i.e., opponent No.3, did not consider it advisable to sue steroid drops for two reasons, viz. (1) Hiren was already given steroid treatment by injection and tablets; and (2) his eyes were dry. Now redness in eyes or conjunctivitis could also have been due to measles which was diagnosed by both opponent Nos. 1 and 2. This could also have been due to SJS. However, as stated above, before any damage was done to the eyes, Hiren was treated by opponent No.3. Therefore, delay in giving treatment for SJS by opponent No.2 apparently did not damage the eyes of Hiren. Therefore, considering the evidence as a whole, although we find that opponent No.2 was guilty of deficiency in service in not diagnosing SJS, he could not be held liable for the condition in which Hiren is today. It is very unfortunate that the young boy has almost lost his vision and he will suffer from this disability for his whole life. We have all sympathies for the complainant and Hiren but we find ourselves unable to hold opponent No.2 responsible or liable for the condition of Hiren. His liability is only limited as stated above. In our opinion, for the deficiency for which opponent No.2 is held guilty, he would be liable to pay lump sum compensation of Rs. 10,000/- to the complainant who will receive it for and on behalf of Hiren.

So far as opponent No.3 is concerned, the allegation made by the complainant is that he is guilty of negligence or deficiency in service because he did not use steroid drops. Dr. Joshi, on whose evidence the complainant relies, has stated that in treatment of Hiren only antibiotic drops were used and not anti-allergic or steroid drops. Dr. Joshi has stated that in treatment of eyes in case of SJS there is no alternative to steroid drops. It is on the basis of this evidence that it is urged on behalf of the complainant that opponent No.3 is guilty of negligence or deficiency in service.

Cross-examination of opponent No.3 hardly brings out any material fact which would help the complainant. Statements of opponent No.3 in regard to the circumstances in which he did not use steroid drops are not challenged in the cross-examination. No ophthalmologist/ ophthalmic surgeon is also examined to prove that the defence which opponent No.3 has taken is not believable. On the other hand, there is medical literature to support the statements made by opponent No.3. We are, therefore, not inclined to hold opponent No.3 guilty of negligence or deficiency in service. He is, therefore, not liable to pay any compensation to the complainant.

There is also no case of negligence or deficiency in service against opponent No.4, the hospital. The hospital appears to have taken all steps which were necessary for giving proper treatment to Hiren. Hiren was admitted to the hospital as opponent No.2's patient. Opponent No.2 who is qualified pediatrician and who is attached to the hospital continued to give treatment to Hiren. Even before Hiren was admitted to the hospital he was diagnosed as the case of measles. Both in measles and SJS only symptomatic treatment is to be given. Hiren was given symptomatic treatment at hospital. Hospital also arranged for consultation with ENT specialist, Dr. Pandya and dermatologist Dr. Kamdar. Hiren was also placed under treatment of ophthalmologist, opponent No.3. It would thus appear that the hospital had done whatever was necessary for the treatment of Hiren. We are, therefore, not inclined to hold the hospital guilty of negligence or deficiency in service. Therefore, the complaint must fail against the hospital also.

Finally, the Commission held that the complaint against opponent Nos. 1,3 and 4 is dismissed. Opponent No.2 is held guilty of deficiency in service and he is directed to pay to the complainant compensation of Rs. 10,000/-. Said amount of Rs. 10,000/- shall be invested in long term fixed deposit by the complainant in the name of Hiren. In addition, opponent No.2 shall also pay to the complainant costs of Rs. 2,000/-. However, there will be no order as to costs so far as opponent Nos. 1,3 and 4 are concerned.

RECENT COPRA JUDGEMENTS