Harishbhai Shamjibhai vs D C Gohil

BRIEF facts relevant to this revision are that, on 28.5.1997,Shamjibhai herein referred as "patient" (since deceased), took treatment for pain in throat from OP Dr. D. C. Govil, an Ayurveda specialist. The doctor gave him some medicines and injection. On the next day, OP doctor prescribed few medicines and advised him to rub ice on the site of injection. But, no avail, hence, on 30th May, 1997, the patient approached Dr.Dinesh Bhat at Jamnagar, who referred him to a surgeon, Dr. Pankaj Shah, for opinion and further treatment. Dr. Shah opined that the OP/doctor has not taken care while giving injection. Hence, it led to infection, septicemia and gangrene in the hip and whole body. Ultimately, on 10.6.1997, the patient had died.

THEREFORE , the complainant No.1 Ramaben, the wife of deceased, along with her two sons, Harishbhai and Narendrabhai filed a complaint before the District Forum, Rajkot claiming compensation of Rs. 3 lakhs with 18% interest from the OP.

THE District forum allowed the complaint and ordered the OP to pay Rs.96,000/ - with interest @9% p.a. from the date of complaint and Rs.5,000/ - as costs. Aggrieved by the order of District Forum, the OP filed first appeal before the State Commission, Gujarat, which was allowed while dismissing the complaint. Hence, against that order, the Petitioner/Complainant filed this revision petition.

WE have heard the counsel for the parties. The learned counsel for the Complainant/petitioners vehemently argued that the OP was not qualified to give allopathic treatment. He was B.A. M.S. and L.M.P. Due to wrong injection, the patient developed gangrene leading to his death. Hence, it was negligence. He has cited one authority of Hon''ble Supreme Court reported in Poonam Verma vs. Ashwin Patel and Others, 1996 4 SCC 332.

THE rival arguments advanced by the learned counsel for the OP, that the doctor has given treatment for Asthama, breathlessness and fever. He has not given any injection to the hip. He gave injection of ''Deriphyllin'' and ''Dexaphone Avil'' on the hand. The patient had pain in the right hip, hence he prescribed Antiflogestine ointment. Hence, there was no negligence. He relied upon the celebrated authority of Hon''ble Supreme reported in Dr. Mukhtiar Chand and Ors. Vs. State of Punjab and Ors., 1998 7 SCC 579. Learned counsel for the petitioners brought our attention towards the certificate of registration under the Gujarat Medical Council, Ahmedabad and the circular issued by Government of Gujarat, dated 22.5.2003. The relevant para of circular is reproduced as below: - Circular (2) As per Gujarat Medical Practioner Act, Section 30; Ayurvedic Practitioners can''t be restricted from practicing allopathy and as per clarification of Indian Medicine Central Council Act. Dated 30/10/1996 vide notification No. : 8 -5/96 AY (MM) (Copy attached) Ayurveda Graduates can practice allopathy according to Indian Medicine Central Council Act, 1970 Section 17 (3)(B).

WE have perused the qualification, registration certificate, and the prescription slips issued by OP, which revealed that OP is an Ayurveda Practitioner, he had prescribed allopathic medicine, administered injection for Asthama. It is quite difficult to fathom whether, it was given IV/IM (Intravenous or intramuscular), an iota of suspicion which arises is that for pain in right hip region, why did the OP prescribe Antiflogestine ointment, without any clinical examination. But, as per the Surgeon, Dr.Shah''s prescription, the patient suffered Right gluteal abscess, which clearly establishes that the most possible cause that IM injection was given to the right gluteal region. It is the paramount duty of any doctor to take proper care in diagnosis and treatment with proper documentation. The OP has not placed any documents or prescription;. The OP cannot be absolved of his negligence by taking help of the Government circular.

BY virtue of Section 15(2) (b) of the Indian Medical Council Act, 1956 the persons having the prescribed qualifications included in the schedules alone, are eligible to practice modern medicine. The words "modern medicine" mean "the modern advances made in the respective fields of Ayurveda, Siddha and Unani". The Kerela High Court followed the decision given in Mukhtar Chand Vs. State of Punjab, 1999 AIR(SC) 468 and reiterated that modern advances mentioned in Section 2(3) of the Act of 1970 cannot be interpreted to mean Allopathic Medicines.

WORDS "Modern advances" has to be contextually interpreted i.e "Modern advances" in the field of Ayurveda, Sidha and Unani and not at all in context of "Modern Medicines". Thus, "Indian Medicine" can make use of modern advances in various sciences, such as, radiology report (X -ray),CT, laboratory reports,ECG etc., for practising in their own system. This does not mean that practitioners of "Indian Medicine" would start acting as Radiologist/Pathologist/ and prescribe modern medicines (allopathic)

RECENTLY , the Apex Court in the case of Bhanwar Kanwar Vs. R.K. Gupta and another, 2013 4 SCC 252 has taken the view that wherein unauthorized medical treatment was administered, it amounts to unfair trade practice and administering allopathic medicine by a person who is qualified in Ayurvedic medicine, cannot be approved of the Hon''ble Apex Court on the facts of this case, enhanced the compensation amount from Rs.5 lacs to Rs. 15 lacs. Another judgment of this commission, in the case Dr. R. R. Singh vs. Pratibha P. Gamre, revision petition No. 887 of 2012, decided on 14.5.2012, the bench of Justice J.M. Malik and Mr. Suresh Chandra, held the ayurveda doctor negligent for prescribing allopathic medicines and awarded Rs. 7 lakhs, as compensation.

THEREFORE , the person who is authorized to practice under Indian Medicine Central Council Act, 1970 is not at all entitled and authorized to prescribe medicines under the Indian Medical Council Act, 1956. We are of considered view that the OP having studied one particular system of medicine, cannot possibly, claim complete knowledge about the drugs of the other system of medicine The transgression into other branches of medicine would tantamount to quackery.

ON the basis of forging discussion, and the various judgments discussed supra, we are of considered opinion that, the OP doctor was not qualified to administer allopathic medicines. Also, OP is BAMS doctor, he failed in his duty of care , it was not a standard of practice to treat asthmatic Patient, on OPD basis. The patient suffered asthma, breathlessness, thus he should have been referred or advised the patient for hospitalisation for proper care. The act of OP was just a therapeutic misadventure; it''s a medical negligence which caused death of the patient. The quantum of award for damages performs two functions; it compensates one who is harmed and it imposes costs on negligent medical service provider. Therefore, the complainants deserve for higher compensation. Accordingly, we allow this revision petition with cost of Rs.3,00,000/ -( three lakhs) as per the law laid down by the Hon''ble Apex Court from time to time. The OP shall comply with this order within 90 days from the date of receipt of this order, otherwise it will carry interest @ 12% pa, till its realisation.