P N SUDHAKAR GUPTA vs ANUGRAHA VITTALA NURSING HOME

-APPELLANT was the complainant before the State Commission, where he had filed a complaint alleging medical negligence on the part of the respondent.

THE facts leading to filing the complaint were that the complainant''s daughter aged about 16 years, approached the OP/respondent on 26. 7. 1992 for treatment as she was having temperature. The attending Doctor R. S. K. Murthy, examined the patient and after obtaining blood reports diagnosed the illness to be a case of ''typhoid fever'' and prescribed pelox, calpol and Becozyme C Forte. The girl again visited the Nursing Home on 30. 7. 1992 and certain medicines were prescribed. The patient again visited the Nursing Home on 9. 8. 1992, complaining severe headache, vomiting. Her blood was examined and a bottle of blood was given to her on 10. 8. 1992. The patient was having severe stomach pain, so she was given Baralgan and Navalgin in order to subside the pain, but this resulted in vaginal bleeding. The respondent gave another bottle of blood with drip and antibiotic medicines. The patient stayed in the Nursing Home till 1. 9. 1992. The crux of the problem is, that it was case of the complainant, that though the daughter suffered from Leukemia, yet the respondent RW-1 Dr. Murthy continued the same drug, i. e. , Pelox. The patient was also given 10 bottles of blood between 9. 8. 1992 to 1. 9. 92. The patient again visited on 8. 9. 1992 and again on 14. 9. 1992 when vaginal bleeding was noticed, as a sequel to which further two bottles of blood were administered to the patient and referred the patient to Despande''s Clinical Laboratory, who after examination of blood gave the report as ''acute Myeloblastic Leukemia'' yet Dr. Murthy did not treat the patient for this disease but only administered further blood transfusion. Since the condition of the patient was not improving Dr. Murthy referred the patient to Kidwai Memorial Institute of Oncology (KMIO), Bangalore, where she was examined by a group of Doctors, who concluded that the patient was suffering from Leukemia. The complainant brought back his daughter from KMIO on 22. 9. 1992 and she unfortunately expired on 24. 9. 1992. It is in these circumstances, alleging medical negligence on the part of the Doctor Murthy, a complaint was filed before the State Commission. The complainant also subsequently took the opinion of one Dr. Kiran about the treatment as an expert witness. The opposite party contested the claim and State Commission after hearing the parties at considerable length through a very detailed and comprehensive order dismissed the complaint as according to them the complaint has failed to prove any negligence on their part. Aggrieved by this order this appeal has been filed before us.

After hearing the complainant in person and learned Counsel for the respondents, we find that there is only one issue which emerges for our consideration and that is, whether the respondent was negligent in his diagonsis and kept treated her for typhoid when it was a case of leukemia.

IT is the case of the complainant that he was never asked to get the test done on the patient, to ascertain whether she was suffering from leukemia or otherwise. It was also his case that the leukemia resulted from administration of drug like Pelox and blood transfusion. It was also his case that the case sheet produced before the State Commission or before us, does not relate to the deceased/patient as there is no name on top of the material on record. Perusing the material on record we find that undisputedly, the patient was brought to the hospital for the first time on 26. 7. 1992 and Dr. Murthy after examining the patient diagnosed this as typhoid fever and gave treatment accordingly. As per complaint filed by the complaint himself, the case of his daughter was referred to Despande Clinical Laboratory for further examination on 14. 9. 1992 and it clearly showed ''acute Myloblastic Leukemia''. It is the case of the respondent that they repeatedly suggested to the complainant, i. e. , the father of the deceased to take-up the patient for ''bone Marrow Aspiration'' in order to get confirmation that the patient was suffering from Leukemia. Admittedly, this facility was not available with the respondent nursing home.

AS per hospital record as early as 21. 8. 1992, the record shows ''advised Bone Marrow Aspiration'' but patient''s father refused''. Again on 24. 8. 1992, the hospital record shows the patient father explained the need for ''bone Marrow Aspiration Test'', but still refusing. On 27. 8. 1992, the Hospital record records the following: "smear finding suggestive of acute leukemia possibly lymphoid. . . . . . . . . . . . . . . . advised to go to CMC, Vellore for further examination. " Above would show that repeated advice for ''bone Marrow Aspiration test'' was unheeded; hence we are unable to agree with the plea taken by the appellant/complainant, that there was any negligence on the part of the respondent in not suggesting the patient''s further examination to determine the factum of leukemia on the part of the patient. In our view, this is clearly a case of negligence on the part of the complainant himself, who repeatedly refused or did not heed the advice of the doctors to get the bone-marrow aspiration test done, which is the test to finally determine that the patient is suffering from leukemia. As far as second plea of the appellant is concerned, we find no merit in this plea that this record does not relate to the patient as it did not bear the name of the patient. We have very carefully perused the material on record starting from Pages 178 to 210 of the paper Book, the name of the patient appears on all pages except page number 206. It needs to be stated that name of the patient appears in pages carrying even number - odd numbered pages do not carry the name of the patient throughout. When we see Page 206, it is correct to state that the name of patient is not there. But we see the record in continuum and the ''timing'' of entries in the record being in sequence, we find that to be in order. The omission of the name of the patient at page 206 might have been on account of some human error of not entering the name on top of 206. We are further strengthened in our view by the fact that subsequent pages 208 and 210 bear the name of the patient.

THE other plea taken by the appellant is that the leukemia could have been drug induced caused by excessive doses of Pelox.

WE have gone through the medical literature brought on record by the respondent, i. e. , the same material on which the complainant''s Expert witness has relied upon, wherein, the doses prescribed are 2 tablets of 400 mg. per day can be prescribed, which precisely has been done in this case. In the present case, Pelox 6 tablets of 400 mg. were administered over three days and again 14 tablets were administered spread over a period of 7 days, which as per the literature on record is within the suggested limits. It is also stated that this could not have been administered to the girl whose age was 16 years. Once we perused the material on record, we clearly found that in any case nothing comes in the way of this quantity being administered on a 16 years old girl. The complainant has also tried to argue that the administration of Pelox was contra indicative. We have carefully gone through the medical literature brought on record by the appellant but this is completely neutralised by the medical literature brought on record as also relied upon by the Expert witness of the appellant. Admittedly in this case ''pelox'' was given and as per CIMS literature on ''pelox'' and ''ciperfloxican'', Pelox may be given upto 800 mg. per day, which is precisely what has been done in this case. The ''ciper Floxican'' is contra indicative in hypertension, children below 12 years, pregnant and nursing women which was, not a case here. The girl was 16 years of age and was not known case of, hypersensitivity nor was she pregnant or a nursing woman. Hence, in this view, no fault can be found about the doctors who administered these medicines on the deceased. In these circumstances, in our view, the complainant has failed to establish that the ailment was drug-induced.

We have also very carefully gone through the expert opinion of Dr. Kiran. There are. two points made by Dr. Kiran in her opinion as also in her examination-in-chief, that had the diagnose been made earlier, perhaps the ante leukemia treatment could have started early and the patient might have survived. In this regard, we do not wish to be repetitive, as this point had already been discussed earlier wherein for the first time patient was advised as early as 21. 8. 1992 for getting the ''bone Marrow Aspiration'' test done. This again makes us repeat that if there is any one negligent on this account, it is the complainant, who refused to accept the advice of the doctors to get the test done. It will be relevant to note that the Doctor Kiran on whose evidence the complainant wishes to rely that Doctor is MD in Forensic Medicine. To what extent it could be taken as an expert witness, we do not wish to comment on that. As far as administration of quantity of Pelox drug is concerned, Doctor Kiran also relied upon CIMS literature. We have already discussed above that the deceased was not below age of 12 and administration of this drug was as per CIMS literature brought on record by the respondent.

IN her cross-examination also in examination-chief Dr. Kiran also states that as per literature of 1992 Pelox -Cifron tablets were not to be given for the persons below age of 16 years but as per literature of 1995, such a medicine can be given for adolescent also. There is no evidence led by the complainant to indicate that the leukemia was drug induced. As a worst case scenario, even if for argument sake, we accept - though we do not - that the administration of Pelox was contra indicative yet there is no evidence of any person or through medical literature that administration of this drug to a 16 years girl would lead to leukemia, in the absence of which, we find that the complainant is completely failed to prove the case of medical negligence on the. part of the respondent. He has not been able to show us as to what the respondent should have done which he did not do or he did what he should not have done. Unquenstionably the onus of proof in this regard, lay with the complainant to prove his case of medical negligence, which as already stated earlier, the complainant has completely failed before us like before the State Commission.

IN the aforementioned circumstances, we find no merit in this appeal, hence dismissed. We refrain from imposing any cost on the complainant. Appeal dismissed.