HEMA MENANI vs MAHESH SHAH

THIS appeal under Section 15 of the , is directed against the order dated 8.11.2004 in Complaint No. 110/2004 passed by the District Consumer Disputes Redressal Forum Raipur (hereinafter called ''District Forum, for short) whereby the complaint was dismissed.

BRIEF facts necessary for disposal of this appeal are that the complainants are the children of the deceased Smt. Radha Bai Menani who had suddenly fainted on 21.4.2003 and was taken as to who advised to admit the patient to the nursing home of Dr. Rajesh Kalra but as necessary facilities were not available at the said nursing home the patient was admitted to the nursing home of O.P. Doctor at about 10.30 a.m. on 21.4.2003. It is alleged in the complaint that O.P. Doctor, after examining the patient, told the relatives of the patient that it is a case of poisoning and it will be necessary to inform the police. It is further submitted that the relatives requested the O.P. doctor to start the treatment urgently after completing necessary formalities. The doctor asked them to deposit Rs. 10,000. However, the relatives deposited Rs. 8,000 on 21.4.2003. It is also alleged in the complaint that there was no improvement in the condition of the patient till 10.00 p.m. and the relatives called Dr. R.S. Sharma who enquired from O.P. doctor as to what medical tests he has conducted and the O.P. doctor had told him that no test was conducted. It is also alleged that on 22.4.2003, the O.P. doctor again demanded Rs. 5,000 but failed to tell the relatives of the patient as to what for the said amount was required. It is further alleged in the complaint that after contacting Dr. Ashish Malhotra the relatives of the complainant demanded relevant papers relating to the treatment from the O.P. doctor. However, the O.P. doctor tore the said papers into pieces and kept the said pieces in his mouth and chewed them. The relatives of the patient suspected that there was something wrong. The doctor wrote another paper/prescription and the relatives took the patient to Dr. Ashish Malhotra''s nursing home on 22.4.2003 at about 11.30 a.m.

That Dr. Ashish Malhotra after checking the patient, advised CT Scan and told her relatives that the patient had suffered Brain haemorrhage and it is not a case of poisoning. Dr. Malhotra had also called the Neurologist-Dr. Sanjay Sharma. It is also averred in the complaint that on 22.4.2003 and 23.4.2003 the police also came for investigation at the nursing home of Dr. Ashish Malhotra and recorded his statement, wherein the said doctor told that it was not a case of poisoning but was a case of brain haemorrhage and paralysis. The complainants alleged that due to wrong treatment by the O.P. doctor the condition of the patient Mrs. Radha Bai Menani deteriorated. On 23.4.2003, as the breathening of the patient became inconsistent, the patient was referred to MMI hospital where she died on 25.4.2003. It was further alleged that in case the O.P. doctor had given proper treatment after carrying out necessary tests, the patient would not have died. Therefore, compensation of Rs. 15,00,000 was claimed.

IN the written version, the O.P. doctor averred that he started symptomatic treatment of the patient but as there was no improvement, he increased the medicine and kept her under his personal observation because he believed that it was a case of poisoning. It was further averred that on 21.4.2003 itself at night the O.P. doctor advised that on 22.4.2003 CT Scan would be required to be done and for this purpose he asked the relatives of the patient to deposit Rs. 5,000. It was further averred in the written version that there was no negligence on the part of the O.P. doctor. The allegation that the O.P. doctor denied to give prescription and had eaten the papers after tearing the same, is totally false and baseless and it was averred that the original documents of treatment are never handed over to the patient but are kept for record purpose at the nursing home itself. IN case the patient is referred to some other hospital, only brief statement regarding treatment is handed over to the patient. It was further averred that Dr. Ashish Malhotra had also given almost the same treatment to the patient and it was only after CT Scan that he called Dr. Sanjay Sharma, Neurologist. He further denied that he had given wrong treatment to the patient. He also denied that it was due to his negligence that the patient Smt. Radha Bai Menani died. On the contrary it was averred in the written version that the patient was admitted to his hospital only for a period of 22 hours and from 22.4.2003 to 25.4.2003 she was treated in some other hospital and nursing home and subsequently died. Hence, it cannot be said that the patient died due to negligence on the part of the O.P. doctor. It was further averred that froth was coming out of the mouth of the patient which is a symptom of poisoning also. Hence, she was treated for poisoning. The relatives of the patient had also lodged report with the police and after investigation the matter was filed.

IN the written version O.P. had raised preliminary objection that the complainants are minors hence are not competent to file the complaint in the absence of being represented by legally appointed guardian. It was also averred that the complaint is not maintainable and is liable to be dismissed with exemplary cost. Learned District Forum dismissed the preliminary objection raised by the O.P., but however came to the conclusion that there was no deficiency of service on the part of the O.P. doctor and dismissed the complaint. Heard the learned Counsel for both the parties. Perused the record.

LEARNED Counsel for the appellant submitted that the impugned order has been passed without properly appreciating the material on record. It was further submitted that the Forum has failed to appreciate the deposition of Dr. Sanjay Sharma and had drawn his own inference that the complainant has failed to file the affidavit of Dr. R.M. Sharma and Dr. Rajesh Kalra. LEARNED Counsel for the appellants submitted that there was no point in filing affidavits of the said doctors because they had neither treated the patient nor had given any prescription. LEARNED Counsel for appellants further submitted that the observation of the learned District Forum that as the complainant had failed to cross examine the O.P., the complaint is liable to be dismissed is legally not sound in view of the fact that the complainant had examined expert doctors in order to prove deficiency in service and negligence of the O.P. doctor. He further submitted that deposition of Dr. Sanjay Sharma and Dr. Ashish Malhotra are self-explanatory and throw light on the matter and the learned District Forum erred in not giving due weightage to the statements of the expert witnesses on record. He prayed for setting aside the impugned order and allowing the complaint.

LEARNED Counsel for the respondent/O.P. reiterated his stand taken before the District Forum and submitted that the order is a reasoned order and has been passed after proper appreciation of the material on record, hence, does not call for any interference at all. On perusal of the record, it appears that the patient was admitted to the nursing home of opposite party on 21.4.2003. The document A-1 dated 22.4.2003 has been filed by the complainants and it is allegedly the document that was given to the complainant''s relatives after the O.P. doctor had allegedly torn the original prescription into pieces and had eaten the said pieces. There is a clear mention on the aforesaid document that it was a case of suspected poisoning. Cardiomonitoring was being done, however, there is no mention that any test was conducted by the O.P. doctor. The aforesaid document also contains an advice to take the patient to MACAHARA.

The O.P. had alleged that the original document is kept for record purposes at the nursing home itself. Only a brief statement regarding the treatment, etc. was handed over as the patient was being referred to MACAHARA. During the course of investigation the police had seized the said record in connection with the criminal case. Hence, the O.P. had filed photocopy of the relevant record. The document filed by the O.P. has been marked as D-1. It is averred in the written version that as per the symptoms the Doctor suspected it to be a case of poisoning and accordingly gave treatment. But surprisingly enough, no such thing is mentioned in the document D-1 i.e., the document filed by the O.P. It is mentioned in the history that there was sudden unconsciousness. It is further mentioned that coma was under evaluation but what was done for evaluating coma is not evident from the said document. An advice is also mentioned on D. 1 regarding CT Scan and Neurologist opinion i.e., after 6.00 p.m. but there is nothing on record to suggest that Neurologist was called for or CT Scan was done. From the aforesaid document it clearly appears that the O.P. doctor had started treatment on symptomatic basis, without conducting any tests.

AS per deposition of Dr. AShish Malhotra recorded before the District Forum the treatment which was being given to the patient is given to serious patient as supportive treatment unless there is a specific diagnosis. The said witness further stated that in case of paralysis or brain haemorrhage, CT Scan ought to have been conducted immediately and he further stated that in case the patient is under coma, CT Scan is to be done as early as possible. However, in cross-examination the witness said that supportive treatment was rightly started by the O.P. Learned Counsel for respondent had submitted that the expert has also expressed his opinion that supportive treatment was rightly started by the OP Doctor, hence submitted that there was no deficiency in service by the Doctor. The other witness Dr. Sanjay Sharma had stated in his deposition that it depends upon the emergency of the case whether to get the C.T. Scan done or to start treatment. The witness further stated that when he went to Tiwari Nursing Home on 22.4.2003 the CT Scan of the patient was already available and it showed brain haemorrhage and after seeing the report there was no doubt in coming to the clear diagnosis regarding brain haemorrhage. He further stated it is evident from Exhibit A-1 i.e., CT Scan report that patient had suffered brain haemorrhage when she was taken to O.P. doctor. The said witness further stated that the treatment for brain haemorrhage and poisoning is different, however broad spectrum emergency treatment can be given for emergency treatment of brain haemorrhage as well as for poisoning but it is neither a specific treatment for brain haemorrhage nor for poisoning.

THERE is no doubt that in emergency condition the Doctor can start such treatment but he is also supposed to get necessary tests conducted in order to ascertain the cause of ailment and to arrive at proper diagnosis which has not been done in this case. As per written version the Doctor came to the conclusion that it was a case of poisoning and continued to give medicines for poisoning till the patient was discharged. Even when, admittedly, there was no improvement in the condition of the patient, he preferred to increase the medicines rather than to get necessary tests conducted for ruling out the possibility of some other ailment. In view of the opinion expressed by the experts, we are of the considered opinion that as the patient was in coma, the treating Doctor, after starting emergency treatment, ought to have advised necessary tests in order to ascertain the cause of coma and to arrive at a proper diagnosis, even if he suspected poisoning. As per Taber''s Cyclopedic Medical Dictionary there are several causes of ''coma'' such as trauma to the head or circulatory accidents in the brain caused by hypertension, arteriosclerosis, thrombosis, tumor, abscess formation or insufficient flow of blood to the brain, acute infections of the brain or meninges, trauma as in accidents, haemorrhage, etc. When there are so many possibilities or causes for coma, it was all the more necessary to investigate and to ascertain the actual cause. However, there is nothing on record to suggest that any pathological or other test was undertaken or advised to confirm the cause leading to coma while the coma was being evaluated by the O.P. doctor. It is further noticed that there is nothing on record to suggest as to what efforts did the O.P. make to ascertain the type of poison consumed by the patient so that necessary antidote could be administered to the patient to nullify the effect of the relevant poison. Taber''s Cyclopedic Medical Dictionary, Edition 17 at page 2398 provides a list of a large number of poisonous and toxic substances, symptoms and emergency measures to be adopted. In almost every type of poisoning enlisted therein we find that gastric lavage, emesis and inducing vomiting is the most widely recommended emergency measure in case of unknown poisoning. There is nothing to suggest that any such measure was resorted or even considered by the O.P. doctor. If it was a case of suspected poisoning, the O.P. doctor ought to have done this. During the course of arguments the O.P./respondent doctor was present before us. He was enquired as to when he intimated the police regarding consumption of poison by the patient and also about what antidote did he administer to the patient. He told that he informed the police on 22.4.2003 because at the time of admission of the patient, he never knew that it was a case of poisoning. However, on perusal of written version it is noted that in reply to para 5 of the complaint, wherein it is alleged by the complainant that the doctor told that it is a case of poisoning and it will be necessary to intimate the police, it is averred that the averment made in para 5 are not disputed. The O.P. immediately started treatment of the patient. So the submissions of the doctor that till 22.4.2003 he did not suspect that the patient consumed poison are contrary to the averments made in the written version hence the same cannot be believed. In reply to our query regarding administering antidote the doctor submitted since it was not known as to what poison the patient had consumed, no antidote was administered. Hence, it is clear from the very first day the O.P. suspected that it was a case of poisoning and started giving treatment without making any effort to get any test conducted and without giving any anti-dote to the patient. Indisputably, the patient was in serious condition and the relatives of the patient had paid Rs. 8,000 to the O.P. doctor on the very first day. If at all, the O.P. doctor had advised CT Scan he was under an obligation to make necessary arrangements to get the test conducted by sending the patient in an ambulance with proper medical attendant and equipments. There is nothing on record to suggest what prevented the O.P. doctor from doing so. Neurologist''s opinion is also advised under document D-1 on 21.4.2003 at 6.00 p.m. but no Neurologist was called for. Since the patient was admitted in the Nursing Home of the O.P. Doctor, it was obligatory on the said doctor to call the expert especially when he had advised for obtaining opinion of the Neurologist.

WE have further noticed that document D-1 is alleged to be photo copy of the original record maintained at the Nursing Home which was seized by the police in connection with the criminal case against the O.P. doctor and it is on the basis of this document that document A-1 was allegedly prepared. The difference in the way of writing both the documents is obvious. Document D-1, appears to have been written in cool and composed manner whereas document A-1 appears to have been written in a hurry, so, though D-1 is alleged to be the photocopy of the original document and normally the original documents of the treatment are written in a hasty manner and in case any document containing the gist is to be given, it is in a much better handwriting, but here it is just the reverse. It cannot be said that document A-1 has been prepared on the basis of document D-1 at the time of discharge i.e., on 22.4.2003. Document D-1 does not appear to us to be a genuine document hence it is not worthy of much credence.

IN view of the difference observed in documents A-1 and D-1, we find an element of truth in the allegation of the complainant that the O.P. doctor had torn the papers and had prepared another document. Obviously unless there is some flaw there was no need to tear the papers. IN this regard the complainants had filed affidavit of R.P. Shukla and R.K. Solanki besides filing affidavit of the guardian through whom the complainant had filed the complaint. All these affidavits corroborate the averments made in the complaint regarding tearing the papers, etc. R.K. Solanki and R.P. Shukla appear to be independent witnesses, we have no reason to disbelieve the affidavits sworn by them. We are of the opinion that such behaviour on part of the O.P. doctor is highly condemnable. In Dr. Laxman Balkrishna Joshi v. Dr. Trimbak Bapu Godbole, AIR 1969 SC 128, the Apex Court has laid down the standard of skill and knowledge of medical practitioner in the following way. ''A person who holds himself out to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge of the purpose. Such a person when consulted by a patient owes him certain duties, viz., a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give, or a duty of care in the administration of treatment. A breach of any of those duties gives a right of action for negligence to the patient.''

In view of the aforesaid discussion, we are of the opinion that O.P. doctor has failed in his aforesaid duties. He was deficient in service in not conducting necessary tests even despite the condition of the patient being serious and the patient being in coma. As observed earlier even if the doctor suspected poisoning as has been averred by him, he was under the obligation to verify whether his suspicion was based on sound footing or there was any other cause for the patient being in coma. By not doing so the O.P. Doctor rendered himself guilty of negligence. It is settled principle that a doctor is expected to demonstrate reasonable care while treating his patient. If he fails to do so he is guilty of negligence. It appears from the material on record that O.P. Doctor has failed to take reasonable care in treating the patient, hence he is guilty of negligence. The finding of the District Forum is erroneous. Hence, the impugned order is set aside.

NOW we have to consider the question of compensation to be awarded. It is observed that Dr. Sanjay Sharma has in his deposition stated that after seeing C.T. Scan report he found that there was Haematoma and it was obvious that the patient had suffered brain haemorrhage prior to she was taken to O.P. doctor. He further stated that it was difficult for the patient to survive. He further stated that as the condition of the patient was very serious it cannot be said that had the treatment as prescribed by him was given by the O.P. doctor to the patient when the patient had come to him, the condition of the patient could have been improved.

IN view of the aforesaid circumstances, as reflected from the statement given by the expert, we are of the opinion that the sole cause of death of the patient cannot be attributed to the negligence of O.P. doctor. IN the circumstances of the case, the compensation of Rs. 15,00,000 claimed by the complainants appears to be excessive. We are of the opinion that compensation of Rs. 2,00,000 (Rupees two lacs) will be sufficient in the circumstances of the case. Hence this appeal is partly allowed. The order of the District Forum is set aside. It is directed that O.P./respondent doctor shall pay a sum of Rs. 2,00,000 (Rupees two lacs) to the complainants with interest @ 9% p.a. from the date of the complaint. Besides bearing his own cost of this appeal, the O.P. /respondent doctor shall also pay to the complainants a sum of Rs. 2,000 (Rupees two thousand) only as cost of this appeal. Appeal partly allowed.