AVTAR SINGH BHATORA vs SWARN PARKASH GARG

SH. Avtar Singh Bhatora has filed this appeal under Section 15 of the Consumer Protection Act against the order dated 19.8.1998 passed by the District Forum, Bathinda, in Complaint No. 289 dated 5.11.1996 whereby the complaint was dismissed leaving the parties to bear their own costs.

THE case of the complainant in short is that the complainant had to visit Maur Mandi, District Bathinda. He suffered a moderate pain in his chest there. After seeing the board on the shop of the opposite party, wherein he has posed himself to be an M.D. Doctor, approached the opposite party for getting himself diagnosed for the chest pain. THE opposite party checked him and diagnosed him to be a case of simple chest pain prescribed the following medicines vide O.P.D. No. 1356 dated 19.9.996 (Ex. A-1): Tab Vabizine D.T. (Anti Biotic). Tab Lorefast (Anti-Allergic) Tab Deriphyllin Retard (Anti asthmatic) and also advised the complainant to inhale steam for clearing the muscus in the nasal regin. On the basis of the prescription slip (Ex. A-1) issued by the opposite party, he purchased medicines mentioned in the prescription slip (Ex. A-1) from Krishna Medical Store, Maur Mandi, vide Cash Memo dated 19.9.1996 (Ex. A-2). He then consumed the medicines as per advice of the opposite party. Instead of getting relief, his pain got aggravated from moderate to severe, and he was then immediately shifted to Kiran Maternity Home, Maur Mandi, District Bathinda for re-examination and further treatment. He was in state of ''coma'' and utter shock at this time and was immediately checked up by Dr. Kiran Garg, who after checking diagnosed him as a case of suffering from "Cardio-Genic Shock". At that time, he was perspiring and sweating profusely and his pulse had gone upto 140 per minutes and as such his condition was declared critical by Dr. Kiran Garg. He was given requisite treatment for Cardio-Genic Shock. He remained admitted in Kiran Maternity Home for few days. He had to incur financial loss and was under mental stress and tension.

Mainly the case of complainant is that the doctor who prescribed him allopathic medicines was posing himself to be an M.D. in alternative medicines, but, there is no such branch of medicine in science of Allopathy in India or abroad nor such system of alternative medicine is recognised by the State Medical Council in Punjab. The opposite party is M.D. in alternative medicine alleged to be from Calcutta which is not recognised by Punjab State Medical Registration Council to undergo Allopathic system of practice. He is posing as post graduate doctor and claims to provide modern and ultra modern facilities in his hospital, the details of which are given in the prescription slip (Ex. A-1). The opposite party is misusing the invalid registration certificate in ''alternative medicine'' to practise Allopathic system of medicine and impersonates himself to be as post graduate doctor in medicine. Hence, the complainant filed his complaint before the District Forum.

ON being noticed, the opposite party filed its written version inter alia taking primary legal objection that Fora could not adjudicate the validity of his medical degrees. ON merits, it was pleaded that the complainant visited the clinic with the complaint of minor chest pain and infection and with due care, he prescribed the medicines. He charged allegations against the Kiran Maternity Home that they hired the service of the complainant to implicate him in a false case and the prescription slip (Ex. A-1) was procured from him in connivance with the proprietors of Kiran Maternity Home to file a false case against him. He pleaded that the complaint be dismissed as being false and frivolous. After giving due opportunity to both the parties and on the basis of oral and documentary evidences advanced by both the parties, the aforesaid impugned order was passed. In the appeal before us, Mr. Mukand Gupta, learned Counsel appeared for the appellant and Mr. A.K. Chugh appeared for the respondent.

THE opposite party is running a hospital in the name and style of ''Garg Nursing Home Hitech Referral Hospital'' which is not a charitable hospital. Dr. Swaran Prakash is the proprietor of the hospital. He has printed prescription slips. He has admitted to have prescribed medicine to the complainant which the later complained him of a mild chest pain. After consumption of the medicines prescribed, his pain got aggravated and he had to get admitted in the ''Kiran Maternity Home''. The important question for consideration in this case is as to whether the opposite party was negligent in rendering medical service to the complainant in the facts as stated above. It has been held by Supreme Court in Indian Medical Association v. V.P. Shantha, III (1995) CPJ 1 (SC) that Fora could go into the matter, as if it was a case of prima facie negligence : "It is no doubt true that sometimes complicated questions requiring recording of evidence of experts may arise in a complaint about deficiency in service based on the ground of negligence in rendering medical services by a medical practitioner; but this would not be so in all the complaints about deficiency in rendering services by a medical practitioner. There may be cases which do not raise such complicated questions and the deficiency in service may be due to obvious faults which can be easily established such as removal of the wrong limb or the performance of an operation on the wrong patient or giving injection of a drug to which the patient is allergic without looking into the out-patient and containing the warning [as in Chin Keow v. Government of Malaysia, 1967 ACJ 379 (PC, England)] or use of wrong gas during the course of an anaesthetic or leaving inside the patient swabs or other items of operating equipment after surgery. One often reads about such incidents in the newspapers. The issues arising in the complaints in such cases can be speedily disposed of by the procedure that is being followed by Consumer Disputes Redressal Agencies and there is no reason why complaints regarding deficiency in service in such cases should not be adjudicated by the agencies under the Act. In complaints involving complicated issues requiring recording of evidence of experts, the complainant can be asked to approach the Civil Court for appropriate relief."

Applying ratio to the decision of the Supreme Court as referred to above to the facts of the present case, it can be stated that it is prima facie a case of medical negligence on the part of Dr. Swaran Prakash Garg as to prescribe the drugs for minimising the chest pain. He has acted against the medical ethics. A doctor when consulted by a patient owes him certain duties namely, (1) a duty of care in deciding whether to undertake the case; (2) a duty of care in deciding what treatment to give; (3) a duty of care in administration of that treatment. A breach of any of these duties gives cause of action of negligence to the patient. The complainant''s case is that the doctor was not qualified and authorised to practise in Allopathic system of medicine but he prescribed the Allopathic drugs to the complainant-patient. His lack of expertise was responsible for the further deterioration of his condition aggravating chest pain. The perusal of the record shows that the opposite party was neither registered nor qualified. When questioned at the appellate stage of the case, the Counsel for the opposite party could not give any reasonable answer to the query regarding the "M.D. Alternative Medicine" degree printed on the prescription slip of the opposite party. The opposite party is only registered pharmacist having diploma in pharmacy and also a diploma in X-ray technology. In his cross-examination, he has admitted before the District Forum that he is practising as a doctor on the basis of these alleged diplomas at Maur Mandi, in the name and style of ''Garg Nursing Home''. Therefore, it stands established that he cannot prescribe and administer allopathic medicines. It amounts to actionable negligence and hence prima facie case of medical negligence as held in Poonam Verma v. Ashwin Patel & Ors., II (1996) CPJ 1 (SC)=1996 (4) CTJ 465 (SC) (CP). Such practitioners are named as "Quacks". Quack is a person who does not have knowledge of a particular system of medicine but practises in that system and a mere pretender to medical knowledge or skill or to put it differently a "Charlatan". They are guilty of negligence ''per se''. The case definitely raises question of general importance and practical significance. It relates not only to the right to practice medical profession but also to the right to life which includes health and well being of a person. Article 21 of Constitution of India provides its citizens fundamental right to life. In our democratic society, law is there for removing imbalances in the society. However, our goal of "Let all be happy and healthy" cannot be achieved if the so called ''quacks'' in the garb of medical practitioners will be operational.

IT would not be out of place to mention here that when the opposite party has been found to be guilty of negligence ''per se'', he acted in contravention of Sub-section (2) of Section 15 of the Indian Medical Council Act, 1956. His act is punishable under Section (3) of Section 15 of the said Act.

THE next issue which arises before us for adjudication is as regard to the compensation to be granted to complainant for the mental and physical suffering he had to undergo because of the medicines prescribed by Dr. Swarn Prakash Garg. It is complainant''s case that he had to spend an amount of Rs. 2,200/- while staying for 3 days in the Kiran Maternity Home. We find that in the facts and circumstances of the case, a token compensation of Rs. 5,000/- will be just and reasonable compensation. As a result, the appeal is allowed. The order of the District Forum is set aside with the direction to the respondent to pay to the complainant Rs. 5,000/- as compensation and Rs. 2,000/- as costs within one month after the receipt of the order.

Before parting with the judgment, it must be observed that such ''quacks'' should be brought to the notice of the civil surgeon of that area as he is empowered by law to initiate criminal proceedings against him and seal their so called ''Hitech Hospitals'', so that in future they do not sell misery to the innocent public. They are not qualified and registered medical practitioners and as such cannot play with the health and life of the people. A copy of the judgment is ordered to be sent to the Secretary, Health Department, Government of Punjab, and to Civil Surgeon, Bathinda for necessary action, if so advised. Appeal allowed with costs.