New India Assurance Co. Ltd. vs Jai Kumar

THESE two appeals, Appeal No. 586/2001 filed by the opposite party Dr. N.S. Mourya and Appeal No. 547/2001 filed by the opposite party the New India Assurance Company are against the same order dated 26.3.2001 passed in Case No. 66/2000 by the District Consumer Disputes Redressal Forum, Sagar, hence are taken up together and disposed of by this common order.

FACTS of the case are that the complainant/respondent Jai Kumar filed a complaint before District Forum stating that his wife Smt. Mohini Jain was suffering from fever since 13.10.1999. On 14.10.1999 the patient was brought to the appellant''s nursing home/clinic for her treatment. The appellant after preliminary examination advised Injection Nivaquine and some tablets and capsules were also prescribed and blood test was suggested. The blood report was obtained on the same day i.e., on 14.10.1999 in which Malaria parasites were not found but lymphocytes were found increased. On 15.10.1999, medicine prescribed on 14.10.1999 were deleted and a fresh prescription dated 15.10.1999 was given in which tablets for controlling diabetes, blood pressure, vomiting and pain and B-complex were prescribed. On 20.10.1999, antibiotic and the medicines to control diabetes, blood pressure, nausea and vomiting were prescribed. Then the patient went to Dr. M.K. Pal who after blood examination recommended that the patient should be taken to Indore. On 24.10.1999, when the patient was being shifted to Indore, it is alleged that she expired on way near Dewas. The complainant lodged a complaint with police and also filed a complaint under Section 12 of the Consumer Protection Act, 1986 alleging medical negligence and praying for a compensation of Rs. 5,00,000/-. The District Forum after analysis of the evidence adduced by both the parties found that the opposite party/appellant has committed medical negligence by giving Nivaquine injection and also in not giving insulin treatment to the patient. The Forum awarded compensation of Rs. 2,00,000/- to be paid to the complainant within a month and if not paid then to pay 9 per cent per annum interest. It is against this order the opposite party Dr. N.S. Mourya has filed the Appeal No. 586/2001 while the Insurance Company has also filed Appeal No. 547/201 challenging the order of the District Forum and submitted that the order of the District Forum should be set aside.

In his appeal, the appellant Dr. N.S. Mourya has submitted that he has diagnosed and treated the patient correctly. The conclusion drawn by the District Forum that if Nivaquine Injection would not have been administered the patient could have been saved is not correct because in case of fever, the World Health Organization (WHO) has recommended that in the case of fever first of all primarily dose before controlling Malaria should be administered to the patient who comes with the complaint of fever even before test for Malaria parasites and if Malaria parasites were not found, then the medicines as per test report may be changed. The appellant on the basis of provisional diagnosis had given a Nivaquine injection and when after blood test it was found that some other infection is there, then the antibiotic medicines were given. The treatment was given for controlling blood pressure, diabetes and also for suspected typhoid. The District Forum has wrongly based its conclusion and has wrongly held the appellant guilty of medical negligence and has wrongly awarded compensation of Rs. 2,00,000/-, therefore, the order of the District Forum should be set aside and the complaint should be dismissed.

WE have gone through the complaint, reply, documents and affidavits filed by both the parties. In this case, the following three points require analysis and decision: (1) Whether Nivaquine Injection should not have been administered by the Doctor and whether this Nivaquine Injection has resulted in death of the patient? (2) Whether doctor has not diagnosed the disease correctly and has not properly treated the patient which ultimately caused death? (3) Is appellant guilty of committing medical negligence?

On appreciation of evidence on record, our findings are as follows: From perusal of record, it is clear that the appellant doctor examined the patient on three days i.e., on 14.10.1999, 15.10.1999 and 20.10.1999. The prescription dated 14.10.1999 reveals that injection Nivaquine and some other tablets were prescribed by the appellant doctor. He also advised blood examination. The blood examination report revealed that Malaria parasites were not found in the blood. However report suggested that lymphocytes were increased and the opinion that it was a case of Lymphocytosis was given. When this report was shown to the appellant then on 15.10.1999 i.e., the next day he struck down the treatment prescribed on 14.10.1999 and prescribed fresh treatment and continued the tablets which were prescribed on 14.10.1999 namely tablet Respar and tablet Insulide and Domestral.

THE appellant Dr. N.S. Mourya has submitted that Injection Nivaquine was not administered by him in his clinic but even if it is assumed that Nivaquine Injection was administered by him and the patient got this injection injected even then the Nivaquine injection cannot be a cause of death that too after 10 days. THE affidavit given by Dr. A.K. Sharma in support of the complainant reveals that children are particularly susceptible to toxic dose of chloroquine. THE chief symptoms of overdosage include circulatory collapse due to a potent cardiotoxic effect. Respiratory arrest and coma symptoms may progress rapidly after initial Nausea and vomiting. Death may result from circulatory or respiratory failure on cardiac dysrhythmin". This means that reaction of Nivaquine can be circulatory collapse due to potent cardiotoxic effect. In the present case nothing like this happened on 14.10.19 when Nivaquine was alleged to be administered to the patient. Therefore, the case of the complainant itself is against his allegation. On the other hand, it is submitted by the appellant that World Health Organization (WHO) has recommended that in a case of any type of fever, Nivaquine should be given as a precautionary treatment for controlling Malaria and if on blood examination Malaria parasites were found negative then the doses may be discontinued. The literature on Nivaquine mentions adverse effects like gastro intestinal disturbances, headache and skin Cruptions which we quote: Adverse effect: The more common side-effects include gastro-intestinal disturbances, headache and skin Cruptions. Psoriasis may be exacerbated. Retinal damage and depigmentation or loss of hair may also occur. These defects usually disappear on cessation of treatment. Convulsions have been reported rarely (these may result from cerebral Malaria, such patients should receive an Injection of phenobarbitone to prevent seizures in a dose of 3.5 m.g./kg. in addition to intravenous administration of Nivaquine-I) Bone arrow depression, including aplastic anaemia occurs rarely, full blood counts should, therefore, be carried out regularly during extended treatment. Allergic and anaphylactic reactions have occurred rarely. We, therefore, are of the opinion that the appellant doctor by prescribing Nivaquine injection has not committed any negligence and moreover the death of the patient after 10 days cannot be because of Nivaquine Injection. On the other hand, death should have occurred instantaneously on the same date when Nivaquine was administered. We, therefore, did not agree with the finding of the District Forum that prescribing Nivaquine Injection is a medical negligence could not be accepted.

IT is alleged by the complainant that the appellant had not correctly diagnosed and has not correctly treated the patient but we do not agree with this contention. On perusal of first prescription dated 14.10.1999 it is clear that appellant had diagnosed and suspected typhoid and prescribed tablet Respar which is a medicine for typhoid. This diagnosis was confirmed on 15.10.1999 when a report of Ananya Pathology Lab dated 15.10.1999 was obtained on the recommendation of appellant Dr. N.S. Mourya. This report confirms that "Vidal test is positive".

IN his reply, the appellant has submitted that on 14.10.1999 he provisionally diagnosed Malaria and typhoid and gave treatment. The blood test report dated 15.10.1999 confirmed that "Vidal test is positive". This means that the patient was having symptoms of typhoid and, therefore, the diagnosis and treatment dated 14.10.1999 of the appellant was justified. When Malaria parasites were not found then the treatment for Malaria was deleted and treatment for typhoid was continued with additional medicines for controlling the diabetes blood-pressure, vomiting and pain. The appellant doctor has made note that on 15.10.1999 sugar level was fasting-190 and after meal-350-the blood pressure was also recorded which was 100/180, therefore, the appellant doctor in addition to tablet-Respar which is an antibiotic for typhoid and tablet INsulin which was for controlling fever and pain and tablet Domestral which was for controlling vomiting and nausea prescribed on 14.10.1999 added medicines for controlling diabetes by prescribing a tablet Glyzid and tablet Wallace and capsule Diaton. Tablet Allece for controlling blood pressure, tablet Mysole was prescribed SOS means if pain in stomach is felt. For controlling Gastrotytis Domestral and for controlling pain tablet Mysole was prescribed. So far as the allegation that Insulin therapy was not resorted to by the appellant, the appellant has submited that patient Smt. Mohini was a case of type-II Diabetes Mellitus, therefore, the insulin therapy was not required. On the other hand, he on 15.10.1999 prescribed three types of tablets for controlling diabetes. The medical literature in journal Diabetes Forum of August-2000 under the head of Short Term Benefits of Insulin Therapy (Annexure-2) it is mentioned that "Insulin therapy in Type I diabetes is life saving and is an absolute requirement. But the indications for use of insulin in Type 2 diabetic patients are less clear. Patients with Type 2 diabetes have altered insulin secretory dynamics, with rentention of some endogenous pancreatic insulin secretion, absence of ketosis and insulin resistance due to diminished target cell action of insulin. They are not dependent on insulin for prevention of ketosis or maintenance of life but insulin may be used to control symptoms and to correct the disordered metabolism. From this it is clear that the patients of Type 2 diabetes are not dependent on insulin for prevention of ketosis or prevention of life. The appellant doctor has submited that the patient Smt. Mohini was a patient of Type 2 diabetes and, therefore, Insulin therapy was not necessary. In such patients insulin therapy is recommended only on limited occasions which we quote: Temporary insulin therapy is required in pregnancy, major surgery, myocardial infection, stroke, serious infections e.g. septecemia and tuberculosis and during ketosis of hyperosmolar non-ketotic sate.

The prescriptions make clear that the appellant had taken care of treatment of diabetes and hypertension. On perusal, prescription dated 20.10.1999 revealed that when it was told that the patient is still suffering from fever then tablet Kepstar which is an antibiotic for controlling typhoid and other infections was prescribed and the medicines for controlling diabetes and blood pressure, etc. were continued. Therefore, the allegation that the medicines for controlling sugar were not prescribed is not corroborated from the treatment papers. On the other hand, proper antibiotics for treatment of infection and medicines for controlling diabetes and blood pressure were given. The allegation that sugar level was 500 on 20.10.1999 is not correct. The report dated 21.10.1999 revealed that fasting blood sugar was 190 means the sugar level was well controlled on 20.10.1999 when the patient was under the treatment of the appellant doctor.

FURTHER blood report dated 23.10.1999 revealed that the patient was shifted to another doctor namely Dr. N.K. Pal for treatment and on 23.10.1999 random sugar level was 358. This shows that the complainant himself switched over to another doctor for treatment and, therefore, the appellant doctor cannot be said to be negligent in any way in the treatment up to 25.10.1999 when the patient was under the treatment of the appellant doctor. He had diagnosed and treated the patient as expected from a doctor of normal prudence and skill. Here a reference of the reply given by the appellant doctor is necessary. In his reply, he has submitted that the patient Smt. Mohini Jain was not only patient of diabetes, but she was a patient of chronic obstructive pulmonary disease, asthmatic bronchitis, hypertension and obesity. It may be that combination of all these diseases be a cause for death of the patient and it cannot be attributed to only Nivaquine injection or treatment of diabetes.

TO conclude we find that the appellant doctor has properly diagnosed and treated the patient and he cannot be held responsible for committing any medical negligence. We, therefore, find that the order of the District Forum is unsustainable and is set aside and the complaint is dismissed. As held above, both the appeals are allowed and the order of the District Forum is set aside. Consequently, the complaint of the respondent is dismissed. Parties to bear their own costs as incurred throughout. This order be placed in record of Appeal No. 586/2001 and a copy be placed in record of Appeal No. 547/2001. Appeals allowed.