KADAR KHAN vs G. L. Gupta

THE present Revision Petition has been filed before this Commission under Section 21(b) of the Consumer Protection Act, 1986 against the impugned order dated 30.07.2007 in Appeal No. 900 of 2005 passed by the State Consumer Disputes Redressal Commission (in short, ''State Commission ''). The State Commission allowed the Appeal. The Appeal was filed against the orders passed by the District Consumer Disputes Redressal Forum, (in short, ''District Forum '') in Complaint No. 73/2004 dated 28.08.2004.

BRIEF facts of the case: The Complainant, Mr. Kadar Khan, on 28.07.2004, took his son, Amjad, about 2 1/2 months '' old, due to illness, to OP, Dr. G. L. Gupta. The OP declared that Amjad was suffering from pneumonia. He gave injections and same medicines for 4 days, i.e. from 28 -07 -2004 to 31 -07 -2004. On 31 -07 -2004, the Complainant took his second son Faizan to OP for cold and cough, for which OP gave injections and prescribed medicine -Phenergan. The OP also expressed that there was no need to take the child to the Children ''s Specialist, as it will improve by medicines. As per instructions, the Complainant gave the medicines to his children, who became unconscious and on the same day i.e., on 31.07.2000, both the sons expired. The Complainant alleged that OP was negligent, due to false assurance of the OP, who failed to refer both the children to child specialists, and due to over -dose of Phenergan, his both sons died. Hence, the OP -doctor, was negligent for which the Complainant filed a complaint for a compensation of Rs.18,00,000/ - before the District Forum.

THE District Forum allowed the Complainant and ordered the OP to pay to the complainant Rs.1,00,000/ - as a compensation along with Rs.10,000/ - towards mental agony and Rs.500/ - as costs. Aggrieved by the order the OP doctor preferred an appeal before the State Commission allowed the Appeal and dismissed the Complaint Hence, against the order of the State Commission, this Revision Petition was filed before this Commission.

WE have heard the Counsel for both the parties. The main issue in this case is, whether, the drug -Phenergan, could be used for the infants and whether it was prescribed in overdose? The counsel for the complainant argued that the prescription was in English, which the Complainant was unable to understand, the doctor advised excess doses of Phenergan i.e. 6 tsf (tea spoon full) for 3 days. The OP prescribed in his prescription the medicine ''''Phenergan '''' to both the children of the Complainant. It caused death of both children of complainant. The counsel produced some medical literature on Promethazine( Phenergan), also the literature on Anti -allergic and Ghai ''s Essential Pediatrics, the copy of label on the bottle of Phenergan syrup. He brought our attention towards the contraindications mentioned in the literature and on the label. Accordingly, medicine was for children between the age of 2 years & above but not for infant children of 8 months. The said fact has been specified in the medical literature affixed on the bottle of the medicine ''''phenergan ''''. In the ''''Warning '''' clause on the bottle it was mentioned that, ''''May cause drowsiness. If affected do not drive or operate machinery. Avoid alcoholic drinks ''''. Caution - ''''It is dangerous to take this preparation except under medical supervision ''''. It is prescribed in the Dosage: ''''Children 2 to 5 years one to three teaspoonful 5 to 10 years two to five teaspoonful Over 10 years five teaspoonful '''' in a day. The counsel for the complainant further argued that, the OP prescribed 6 tea spoonful of the medicine ''''Phenergan '''' in his prescription which resulted in the death of infant sons of the Complainant.

THE counsel for OP brought our attention towards the prescriptions dated 27.07.2004 given by OP to Amjad which revealed ,that the dosage advised was half -tea spoon, for 3 times a day, for two days only. The second son, Faizan was not prescribed phenergan, who was examined by OP on 31.07.2004. Hence, it is quite clear that, the Phenergan was prescribed for Amjad, on 27.7.2004 and 28.07.2004 only. But, the death took place, on 31.07.2004. As per medical literature, the action of phenergan will be only for 4 -6 hours. We do not find any evidence of excessive dosage advised by the OP, the prescription clearly mention about 1/2 tsf 6 hourly. Also, no medical expert was examined in this case; also the prescription clearly shows that, OP advised to take the children to the specialists at Dhar. Thus, the allegation of the Complainant and the arguments are bereft of merit. The medical literature does not support the Complainant.

WE also, cannot ignore the services of OP doctor, a qualified MBBS, who had worked as a Government Physician and now practicing in the village Kesu, for the past more than 50 years. He made the diagnosis of pneumonia, on the basis of the history, medical examination with routine X -ray and blood test reports. We are of considered view that, the OP used his clinical acumen and reasonableness in diagnosis and treatment of both children, which is not negligence.

WE have relied upon various judgments of Hon ''ble Apex Court. In Jacob Mathew ''s case , the Hon ''ble Supreme Court has observed as following: - ''''A medical practitioner faced with an emergency ordinarily tries his best to redeem the patient out of his suffering.He does not gain anything by acting with negligence or by omitting to do an act. Obviously, therefore, it will be for the complainant to clearly make out a case of negligence, before a medical practitioner is charged with or proceeded against criminally. A surgeon with shaky hands under fear of legal action cannot perform a successful operation and a quivering physician cannot administer the end -dose of medicine to his patient. ''''

MCNAIR J, in Bolam v Friern Hospital Management Committee; stated that; ''A doctor is not guilty of negligence, if he has acted in accordance with a practice accepted, as proper, by a responsible body of medical men, skilled in that particular art. Putting it another way round, a doctor is not negligent if he is acting in accordance with such a practice, merely because there is a body of opinion that takes a contrary view.

IN B. Krishna Rao Vs. Nikhil Super Specialty Hospital, III (2010) CPJ 1(SC) the Hon''ble Apex Court held; ''''It is not necessary to have opinion of the expert in each and every case of medical negligence. ''''

THEREFORE , the entirety of foregoing discussion and medical literature on the subject, we do not find any negligence caused by OP doctor, hence we dismiss this Revision petition and in totality we confirm the order of the State Commission. No orders as to costs.