SATISH CHATURVEDI vs YADRAM

BOTH the aforesaid appeals are being decided by this common judgment as in both of them common questions of law and facts are involved and they have been preferred against the order dated 29.10.2004 passed by the learned District Forum, Jaipur-I, Jaipur in Case No. 127/2003. Appeal No. 2266/2004 Dr. Satish Chaturvedi v. Yadram

THIS appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as "the Act of 1986") has been filed by the appellant against the order dated 29.10.2004 passed by the learned District Forum, Jaipur-I, Jaipur by which the complaint filed by the complainant-respondent under Section 12 of the Act of 1986 was allowed partially in the manner that the appellant was ordered to pay a sum of Rs. one lac as compensation and Rs. 1,000 as cost of litigation to the complainant-respondent on account of medical negligence in treating the son of the complainant-respondent. It arises in the following circumstances: The complainant-respondent filed a complaint under Section 12 of the Act of 1986 before the learned District Forum, Jaipur-I, Jaipur on 21.5.2003 stating inter alia that his son Jitendra (hereinafter referred to as "the deceased") was healthy, intelligent and energetic youth and he was a mechanic of radio and television. It was further stated in the complaint that on 14.4.2003 at about 7.30 p.m. deceased had fever and, therefore, deceased was brought to the clinic of the appellant by the complainant-respondent for treatment, where appellant gave two injections to the deceased without caring as to from which disease, the deceased was suffering. It was further stated in the complaint that as soon as injections were given by the appellant to the deceased, spot in round shape and blister appeared on the body of the deceased and despite that, deceased was sent to his house by the appellant. It was further stated in the complaint that at about 9.30 p.m. on the same day i.e., on 14.4.2003, condition of the deceased deteriorated, upon which, appellant was contacted on phone through Shipa Medical Store and the appellant asked the person sitting in the Medical Store to give two tablets to the deceased, which were taken by the deceased and these two tablets were given by the appellant without seeing the condition of the deceased. It was further stated in the complaint that at about 3.30 a.m., the condition of the deceased further deteriorated and thereafter, deceased was brought to SMS Hospital, Jaipur where he was declared dead and post mortem of the dead body of the deceased was also got conducted and the complainant-respondent had also got registered FIR in the Police Station Ramganj, Jaipur. It was further stated in the complaint that as soon as appellant gave two injections to the deceased when deceased was brought to his clinic for the first time, they created reaction in the body of the deceased, but the appellant did not take that matter seriously and at that time, the appellant did not refer the deceased to the SMS Hospital, Jaipur and rather, the appellant sent the deceased to his house and thus, in treating the deceased, there was medical negligence on the part of the appellant. It was further stated in the complaint that as per post mortem report, the cause of death of deceased was reaction of the drugs and thus, from this point of view also, the appellant was responsible for the death of the deceased. Hence, the present complaint was filed by the complainant-respondent claiming a sum of Rs. 15 lac as compensation from the appellant. A reply was filed by the appellant on 8.7.2003 and according to the appellant, when the deceased was brought to his clinic on 14.4.2003 at about 7.30 p.m. apart from having temperature of 100 degree, deceased was suffering from Gastroenteritis and Pyrexia and there was also drug reaction and these symptoms were mentioned by him in the treating slip marked as Annexure R/1 and, therefore, to say that deceased was patient of simple fever is not correct one and earlier, deceased was treated by doctor, who used to take Rs. 5 from the patient and because of his treatment, the condition of deceased was not good one. It was further submitted by the appellant that when the deceased was brought to his clinic on 14.4.2003, it was found that the deceased was suffering from Gastroenteritis and Pyrexia and there was also drug reaction in the body of the deceased and to meet out above diseases, he gave anti allergic, anti vomiting and anti diarrhea drugs, which were known as life saving drugs and thus, by injecting two injections in the body of the deceased, the appellant had committed no mistake. It was further submitted by the appellant that the attendant, who had brought the deceased, to his clinic had also told him that doctor, who used to take Rs. 5 had given tablet of quinine to the deceased and because of that, there was reaction in the body of the deceased and to meet out that situation, he injected two injections in the body of the deceased. So far as the fact that the appellant had a telephonic talk with the person sitting in the medical store is concerned, it has been admitted by the appellant and upon that, he had stated that he advised the complainant-respondent that deceased should be brought to the SMS Hospital, Jaipur, but deceased was not brought to SMS Hospital by the complainant-respondent and when deceased was brought to SMS Hospital on the next day, the condition of deceased had already deteriorated. Therefore, there was no medical negligence on the part of appellant. It was further submitted by the appellant that as per post mortem report, the deceased died because of cardiac arrest, which had occasioned as a result of reaction of tablet of quinine. Hence, there was no medical negligence on the part of the appellant and the present complaint deserves to be dismissed. After hearing both the parties, the learned District Forum, Jaipur-I, Jaipur through impugned order dated 29.10.2004 partially allowed the complaint of the complainant-respondent in the manner as indicated above holding inter alia: (i) That the fact that on 14.4.2003 at about 7.30 p.m., deceased was treated by the appellant is not in dispute. (ii) That the fact that at that time, the appellant injected two injections in the body of the deceased is also not in dispute. (iii) That at the time of treatment what type of drugs were given by the appellant to the deceased, this fact was only known to the appellant as the prescription slip marked Annexure R/1 was not given to the attendant of the deceased. (iv) That when the appellant was aware of the fact that deceased was suffering from drug reaction and he gave life saving drugst to the deceased, in such a situation, the appellant should have referred the deceased to big hospital instead of sending deceased to his house and the act of the appellant sending the deceased to his house was not proper one. (v) That the fact that after telephonic talk at the medical store, deceased was given two tablets, as per directions of the appellant, is well established, but the appellant should have not done so and in such a case, he should have asked the concerned person that deceased should be brought to the big hospital. (vi) That the fact that the deceased was treated by the appellant is well established and the fact that the appellant did not give any advice that deceased should be brought to SMS hospital is also well established. (vii) That no doubt deceased had not died because of the wrong treatment given by the appellant, but the manner in which the deceased was treated by the appellant was nothing, but amounts to deficiency in service on his part in treating the deceased. Aggrieved from the said order dated 29.10.2004 passed by the learned District Forum, Jaipur-I, Jaipur, this appeal has been filed by the appellant.

In this appeal, the main contention of the learned Counsel for the appellant is that when the learned District Forum had come to the conclusion that there was no medical negligence in treating the deceased, therefore, thereafter awarding of Rs. one lac on ground of medical negligence is nothing, but an illegal exercise on the part of the learned District Forum and thus, the impugned order should be quashed and set aside.

ON the other hand, the learned Counsel for the respondent has supported the impugned order. We have heard the learned Counsel appearing for the appellant and the learned Counsel appearing for the respondent and gone through the entire materials available on record.

BEFORE proceeding further, it may be made clear here that the learned Counsel for the appellant has misconceived himself with the findings of the learned District Forum. The learned District Forum at one point has clearly observed that when the deceased was brought to the clinic of the appellant, he was suffering from some drug reaction and that is why, to control drug reaction, the appellant injected two injections in the body of the deceased, but inspite of that, the appellant asked the deceased to go home, but he should have asked the deceased to go to big hospital and that aspect on the part of the appellant was found deficiency in service by the learned District Forum, though the learned District Forum has come to the conclusion that there was no deficiency in treating the deceased by the appellant. Thus, these are two different things; one treating the deceased and another giving of advice in serious case. Since the appellant was found negligent in giving proper advice, therefore, deficiency in service was found on his part by the learned District Forum. Hence, the finding that there was no negligence on the part of the appellant in treating the deceased would not come to help the appellant, if other aspects of the case are taken into consideration. Before proceeding further, we must have a bird''s eye view pertaining to negligence and medical negligence.

WINFIELD has defined negligence as a tort which is the breach of a legal duty to take care which results in damage, undersired by the defendant to the plaintiff. An act involving the above ingredients is a negligent act. It can very well be stated that negligence comprises of, (a) Existence of legal duty; (b) Breach of legal duty; (c) Damage caused by breach. (a) Existence of legal duty Whenever a person approaches another trusting him to posses certain skill, or special knowledge on a given problem and depends on him for service and dispensation of that skill, the second party is under an implied legal duty to exercise due diligence as is expected to act at least in such a manner as is expected in the ordinary course from his contemporaries. So it is not that the legal duty can only be contractual and not otherwise. Failure on the part of such a person to do something which was incumbent upon him to do so, that which would be just and reasonable tantamounts to negligence. Every time a patient visits a doctor for treatment of his ailment he does not enter into any written contract but there is a contract by implication and any lack of carelessness or proper care can make the erring doctor liable for breach of professional duty.

(b) Breach of legal duty There is certainly a breach of legal duty if the person exercising the skill does something which an ordinary prudent man would not have done or fails to do that which an ordinary prudent man would have done in a similar situation. The standards are not supposed to be of the very high degree or of a very low degree but just the relative kind that is expected from an ordinary prudent man in the ordinary course of treatment

. (c) Damage caused by the breach The wrong, injury occasioned by such a negligence is liable to be compensated in terms of money and the Courts apply the well settled principles for determination of the exact liquidated amount. In a suit for damages on account of negligence, the onus lies on the patient to prove that the doctor was negligent and the said negligence resulted in the injury which is complained to be compensated. Medical Negligence

BASICALLY, medical negligence means such negligence resulting from the failure on the part of the doctor to act in accordance with medical stanards in vogue which are being practised by an ordinarily and reasonably competent man practising the same art. A branch of the civil wrongs is known as negligence. A dub-branch of this is medical negligence, which deals with siutations in shich a physician or surgeon or other member of the medical profession may have to pay compensation, if he has not exercised reasonable care. The degree of care to be exercised depends on the facts of each case. However, in general, it may be stated that the test is the standard of the ordinary skilled man, exercising and professing to have that special skill. If a medical man fails to measure up to that standard in any respect, he has been negligent and has to pay compensation to the person harmed by him.

Once a doctor accepts a patient, this principle becomes applicable, whether the doctor accepts fees or not, and whether the doctor is a private practitioner or a public servant, general practitioner or a specialist. A person who offers medical advice or treatment, implicitly undertakes that he has the requisite skill and knowledge. Such a person owes to the patient certain duties, of which the following are important: (a) duty of care in deciding whether to take in a case; (b) duty of care in deciding what treatment to give and in diagnosis; (c) duty of care in administering the treatment; and (d) a duty of care in answering question put to him by a patient when he knows that the patient intends to rely on his answer.

THERE is a difference between a specialist and general practitioner. A person may be general practitioner but not specialist and not vice versa. A specialist is one from whom, in case of a contract, more skill can be demanded than from a general practitioner. In case of eye the person who holds the degree of Master of Surgery can be regarded as a specialist but not the person who is a general practitioner. A breach of any of these duties will supplort a suit by the patient. Professional negligence Professional negligence, rather medical negligence is that which, as the term suggests, relates to the medical profession and is the result of some irregular conduct on the part of any member of the profession or related services in discharge of professional duties.

IT may be stated here that to establish negligence on the part of the defendant, the claimant must show : (a) what is the standard of care; and (b) on the facts of the case, that the defendant''s conduct fell below that standard. Burden of proof In the famous case of Hucks v. Cole decided by Lord Denning, (1968) 118 New.LJ 469, Lord Denning pointed out that a charge of professional negligence against a medical man stood on a different footing to a charge of negligence against the driver of a motor car. It affected his professional status and reputation. Therefore, the burden of proof was correspondingly greater. In Halsbury''s Law of England Vol. 26 page 17, it has been held that a doctor is not liable in negligence because someone else of better skill and knowledge would have prescribed a different treatment or operated in a different way, nor is he guilty of negligence if he had acted in accordance with a practice accepted as proper by a reasonable body of medical men skilled in that particular art although a body of adverse opinion also existed among medical men. This principle has been affirmed by the Apex Court in a famous case of Dr. Laxman Balkrishna Joshi v. Dr. Bapu Godbole, AIR 1969 SC 128.

IT may be stated here that the Commission cannot constitute itself into an expert body and contradict the statement of the doctor unless there is something contrary on the record by way of expert opinion or there is any medical treatise on which reliance could be based.

KEEPING the above aspects in mind, the facts of the present case are being examined. Before proceeding further, it may be stated here that a bare perusal of the post mortem report of the deceased reveals that the doctors had not come to the conclusive cause of death of deceased and they have stated that cause of death will be given after receiving the chemical analysis report. The chemical analysis report is dated 7.7.2003, which reveals that on chemical examination, portions of viscera and blood sample gave positive tests for the presence of chloroquine and thus, it can be said that due to administering of tablet quinine in the body of the deceased, deceased would have died or would have received reaction in his body.

It appears that when the deceased was brought to the clinic of the appellant, his condition was not good one and that is why, the appellant injected two injections in the body of the deceased to control the drug reaction. Therefore, the findings of the learned District Forum in this respect that at the time of treatment of deceased by appellant, there was drug reaction in the body of the deceased are liable to be confirmed one.

THERE is also no dispute on the point that though there was drug reaction in the body of the deceased and deceased was treated by the appellant, but the appellant did not give advice to the deceased on that day to go to a big hospital and that aspect on the part of the appellant was found deficiency in service by the learned District Forum. In our considered opinion, these findings of the learned District Forum cannot be said to have been suffering from any basic infirmity or illegality or perversity. When the deceased was brought to the clinic of the appellant, he was in a critical condition of drug reaction, therefore, after giving treatment, the appellant should have referred the deceased to a big hospital, but instead of doing so, he asked the deceased to go home and apart from this, when there was no improvement in the condition of the deceased and rather condition of deceased further deteriorated, the appellant was contacted on phone through medical store and at that time also, instead of giving advice that deceased should be brought to the big hospital, he without seeing the condition of deceased asked the person sitting on medical store that two tablets be given to the deceased and these aspects show that the appellant had failed to exercise due care and diligence in treating the deceased. Failure to refer the deceased to specialist or a big hospital, especially when the condition of the deceased was found very serious and critical one, amounts to professional negligence on the part of the appellant.

IN cases of reaction to a medicine, it is the duty of the doctor to take all necessary precautions which any other reasonably prudent doctor of same level could have taken. Since in the present case, even as per the reply of the appellant himself, the deceased was having drug reaction and for that, he injected two injections in the body of the deceased for controlling drug reaction and in such a situation, the appellant should have referred the deceased to a big hospital, but instead of doing so, he asked the appellant to go home and apart from this, when the condition of deceased further deteriorated, the appellant was contacted on phone through person sitting in medical store and upon this, without seeing the condition of deceased, the appellant asked the person sitting in medical store to give two tablets and at that stage also, the appellant did not advise that deceased should be brought to a big hospital and thus, in these circumstances, it can reasonably be inferred that the appellant had failed to take all necessary precautions and his act of not referring the deceased, in such a critical situation, to a big hospital, amounts to deficiency in service and the findings of the learned District Forum in this respect are liable to be confirmed one. For the reasons stated above, no interference is called for with the finding of the learned District Forum as they are based on correct appreciation of entire materials available on record and they do not suffer from any basic infirmity, illegality or perversity and thus, this appeal deserves to be dismissed. Appeal No. 2195/2004 Yadram v. Dr. Satish Chaturvedi

THIS appeal has been filed by the appellant-complainant for enhancement of the amount of compensation awarded by the learned District Forum, Jaipur-I, Jaipur through order dated 29.10.2004.

HAVING heard the learned Counsel appearing for the parties and looking to the entire facts and circumstances of the case, we are of the view that awarding of compensation to the tune of Rs. one lac is just, proper, reasonable and equitable and we see no reason or ground to enhance the amount of compensation. Thus, for the reasons stated above, this appeal for enhancement of compensation deserves to be dismissed. Accordingly, in the result, both the aforesaid appeals are dismissed. Appeals dismissed