S.N.NAMBOODIRI vs Haneefa

THESE appeals are directed against the order passed by the District Forum, Kollam in O.P. No. 144/1992. Appeal No. 533/1995 is filed by

the opposite party and Appeal No. 662/1995 is filed by the complainant.

SHORTLY stated, the allegations in the complaint are as follows : On 16.3.1991 the complainant''s daughter aged 41/2 years was taken for

treatment to the dispensary run by the opposite party and the child was under the treatment of the opposite party till 15.4.1991. In spite of the

treatment given by the opposite party the condition of the child got deteriorated on account of negligence on the part of the opposite party. On

23.3.1991, 7.4.1991 and 15.4.1991 the opposite party examined the child and he prescribed medicines and also conducted urine test. The

opposite party received consultation fees and the value of the medicines by way of consideration. He gave Alloppathy medicine and Ayurvedic

Medicine during the period of treatment. He did not make arrangements for blood test and he also did not exercise reasonable care and skill

expected of a doctor. He knew Hepatic B type is serious than A type and no step was taken to make investigation to find out what is the type of

Jaundice. The child developed swelling on the legs in the first week of treatment. Though her condition became worse, the complainant was not

advised to seek better treatment. On 15.4.1991 the complainant was asked to take the child to Medical College. She was the only child of the

complainant. Due to unskilful treatment, the child died and the complainant was put to irreparable loss and injury. He claimed a compensation of

Rs. 99,000/-.

A version was filed by the opposite party stating that he was in the medical profession for the last 35 years. He is the owner of the dispensary and

he has got qualification of DAM and DMS. He is having a Medical Laboratory for conducting routine examination. On 16.3.1991 the patient was

brought to the hospital being case of Jaundice. On laboratory examination of the urine of the patient, bile pigment was found to be positive added

with excess of bile salt. Her overall condition was found to be satisfactory. After due examination of the patient, he diagnosed it as a case of

Jaundice. Apart from allopathic medicine like live 52, Tefrole, etc. also were administered to the patient. The patient went with the case sheet. He

did not find it necessary to examine the blood of the patient. The general clinical feature and also the results of the urine test did not disclose any

symptoms warranting a blood test and the physical condition was also found to be satisfactory not requiring any treatment as an impatient. After

prescribing medicine opposite party gave elaborate instruction to the complainant about the need for bed rest in the house and also about the diet

to be followed and complainant was asked to provide as much fruits and vegetables as possible. The complainant was asked to bring the child

after 7 days and the child was brought on 23.3.1991. Urine was examined and it was found that there was only traces of bile pigment and bile salt

was found to be nill and it revealed that the treatment was progressive in the right direction and the patient was responding to the medicines

administered to her. Same course of medicine was repeated. Urine was examined and re-tested and it revealed total absence of bile salt and bile

pigment and the patient was relieved of the ailment and thereafter nothing was heard and after five months he received a notice sent through an

Advocate dated 19.4.1991 stating child was admitted to the Medical College in a fully conscious stage and discharged on request on 3.7.1991

and child died on 15.7.1991. We do not know what transpired after the child discontinued his treatment.

The District Forum after consideration of the evidence in the case came to the conclusion that there is negligence on the part of the opposite parties

in the matter of investigation. In that view it passed an order directing the opposite party to pay to the complainant a sum of Rs. 25,000/-.

FEELING aggrieved by the said order the opposite party has filed Appeal No. 533/1995 and not being satisfied with the amount of

compensation and the finding entered by the District Forum, the complainant has filed Appeal No.662/1995.

Learned Counsel for the opposite party submitted that the complainant has not succeeded in establishing that there was negligence on the part of

the opposite party. He also stated that the opposite party is qualified to practise both in Allopathic System and Ayurvedic System. His qualification

is DAM and DMS. According to the complainant both these qualifications are in Ayurvedic System. There is nothing before us to show that the

opposite party is qualified to treat in Allopathic System. However learned Counsel appearing for the opposite party has placed before us a new

document, the registration certificates issued under the Travancore Cochin Medical Indegenous Medicine. Though the production of these

documents is objected to by the complainant''s Counsel, we are not inclined to reject the documents on that technical ground. Therefore we

marked these documents as Exhibits R3 and R4. Exhibit R3 is registration certificate issued by the office of Travancore Cochin Medical Council of

Indegenous medicine certifying that the complainant is a person registered under the Travancore Cochin Medical Practitioners Act. Exhibits R4

only states that it is certified that the opposite party has registered under the Travancore Cochin Medical Practitioners Act. That appears to have

been issued by the Travancore Cochin Council of modern medicines. In the absence of the qualification in the Allopathy System, we are of the

view that the opposite party is not competent to treat the patients in Allopathic System. In this connection we would like is refer to the decision of

the Supreme Court in Poonamvarma v. Ashwin where the Supreme Court dealt with a case where a person qualified in Homeopathic system

treated the patient in Allopathic system. The Supreme Court held such treatment itself is a deficiency in service and compensation was awarded to

the complainant therein reversing the finding of the District Forum that no deficiency in the treatment of the opposite party was proved in that

particular case.

WE are also not satisfied that the opposite party has exercised reasonable care and caution in the treatment and management of the patient in

this case. In this context we may refer to the documents produced in this case and the evidence tendered by both the parties. Exbt. A1 series relate

to the treatment the result of the investigation made by the opposite party and the treatment given by him upto 15.4.1991. It may be noticed that

the tests conducted by the opposite party were from his own laboratory attached to his hospital. It is stated that the first result is relating to urine

test on 16.3.1991 and what is stated therein is bile salt trace and bile pigment positive. No finding has been recorded regarding diagnosis. There is

another result of the test dated 23.3.1991 recorded and what is stated therein is bile salt nil and bile pigment trace. Next one is dated 7.1.1994

and what is stated therein is bile salt nil and bile pigment trace. The last one is dated 15.4.1991 and what is stated therein is bile salt nil and bile

pigment nil. WE also find the medicine prescribed by the opposite party. WE are unable to read items 1 to 3 of the prescription mentioned in the

prescription dated 16.3.1991. The opposite party has not explained either in the version or in his evidence what are medicines prescribed and for

what disease the treatment was conducted. Suffice to say there is no indication that the treatment was made for Jaundice. The prescription dated

23.3.1991 only stated ''repeat'' all. It may be noticed that there was trace of bile pigment. There is no statement by the opposite party in his version

that he had prescribed medicine for Jaundice. WE find on 17.1.1991 the report is bile salt nil and there is bile pigment trace. But there also what

we find is ''repeat'' and new medicine disogen has been prescribed. Disogen is not a medicine for Jaundice. It is usually prescribed for acidicity. On

15.4.1991 the test result is stated as a bile pigment nill which would suggest the child was all right by that time. However he has prescribed

medicines as ''repeat''. All the medicines 1 to 3 and 5 and 6 to be repeated and in addition to that Calpol, Disogel and B Complex which are

medicines normally administered for reducing temperature were prescribed. Another medicine has also been prescribed, but it is not stated by the

opposite party for what illness that medicine was prescribed or whether it was intended for Jaundice. WE would feel that no medicine should have

been prescribed because according to the test report, the child was all right. In this context we may state that the opposite party himself has

admitted that he prescribed both Allopathy and Ayurvedic medicines though his evidence does not disclose what are the Ayurvedic and Allopathy

Medicines administered by him for Jaundice. The PW 1 is the complainant. He has given evidence in terms of the averments contained in the

complaint. PW 2 is Dr. Ashokan of Deen Hospital, Punalur. Finding the condition of the child did not improve, the patient was taken to Dr.

Ashokan''s hospital and he examined the patient on 18.4.1991, Exbt.A2 series were issued by him on 19.4.1991. He referred the patient to

S.A.T. Hospital, Thiruvananthapuram, as he found the condition of the child was serious. Exbt. A2 showed that the blood of the patient was 30 ml.

gm. and Zerum Bilubirin was 13.7. ml. gm. PW 2 stated that normally Zerum Bilubirin should be 1ml. gm. PW 2 stated that the result of Bio-

Chemistry taken in the laboratory clearly indicates symptoms of Jaundice. WE also find the laboratory result in opposite party''s hospital regarding

urine indicated alnamine trace and bile salt were present. Bile pigment was positive. WE find these results would indicate that the patient was

suffering from Jaundice. PW2 stated she had moderatory Jaundice and she was suffering from Type-II hepatitis and that is the reason why he

referred to the patient to SAT Hospital. He also stated for doing basic treatment the blood test is necessary. He also stated that they have to

diagnose the case and for diagnosing blood test is necessary and the initial test is urine test and they can assess Jaundice from the urine test and

since there are two types of jaundice in order to diagnose which type of jaundice the patient is suffering, it is the basic necessity to conduct blood

test. Admittedly no blood test was conducted. He further stated type-II is more complicated and both types I and II will affect liver. Cangucation

is process in the liver by which the beluribin is made exerotable in physics. The primary treatment is bed rest by calory diet vitamins and

suplementation. He stated that some of the medicines applied are Ayurvedic. He stated calpol is a Alopathy medicine. He further stated usually

these two systems of treatment cannot be applied in patient simultaneously. A specific question was put to him whether he can say that the doctor

who treated the patient from 16.3.1991 to 15.4.1991 has done basic primary things for diagnosing the type of Jaundice and administration of basic

medicines. He replied in the modern medicines ''No''. In the re-examination he repeated in this case blood test is absolutely necessary for treatment

from 16.3.1991 to 15.4.1991 according to the modern medicines.

Pw 3 Dr. Elizabeth who treated the patient at SAT Hospital was examined as an expert witness. She stated that she issued the case sheet A3. She

stated that on the date of admission the child was jaundised and liver and spleen enlargement and sensorium was normal. She further stated that

when admitted the condition of patient was such that chances of recovery were remove at the time of discharge the patient was Hepatic

comafulminant hepatic failure-Zerum Biterubin was 33.8 mg. inspite of treatment. 12 blood transfusions were given and recovery was remote. She

stated that blood test was the primary thing to be done and in this case blood test was not done. She further stated that if the test dated 15.4.1991

(which was conducted at opposite party''s hospital) is correct the patient was not suffering from Jaundice and it was not possible to refer to SAT

Hospital. Her evidence clearly indicates that the test results at the opposite party''s hospital cannot be correct. She found that the patient was

suffering from Jaundice at the time of admission of the SAT Hospital. To a specific question as an expert can she say whether medical practitioner

who treated the patient from 16.3.1991 to 15.4.1991 has done the primary fundamental and basic things for a jaundice patient she stated

regarding investigation ''No'' and regarding treatment she was not competent to say as the system of medicine applied by the opposite party is

different.

Exhibit A3 is the certificate issued by Dr. K. Elezabeth and it is stated therein that child went into Hepatic coma and Fulminant liver cell failure

Zerum Biterubin 33.8 ml. gm. inspite of treatment and blood transfusion given 12 times.

LEARNED Counsel for the opposite party heavily relied on the evidence of RW 1 Dr. N. Sathi. She stated in the chief examination that she had

occasion to go through the case sheet. Urine test is fundamental. She further stated that even without test an expert can diagnose the jaundice. She

also stated that she cannot comment on the treatment as it is under a different system of medicine. In the cross examination she admitted that blood

test is absolutely necessary. She also stated of that Ex. Al series taken on 15.4.1991 are not all correct and cannot be relied upon. She further

stated as per their system, if the patient''s condition is deteriorating blood examination and liver function test are must. She stated if there is no

convenience for blood test patient has to be referred to other place. She also admitted that investigation as evidenced by Ex. A1 is not sufficient.

THE evidence of PWs 2, 3 and RW 1 would clearly indicate that the opposite party committed clear deficiency in the matter of conducting

investigation and also treatment. As indicated above he has not explained for what ailment he treated and whether medicines prescribed by him

were for the ailment of jaundice. He has also administered both Allopathy and Ayurvedic medicines simultaneously which itself has to be treated as

deficiency. No proper investigation was conducted by him and the test result on 15.4.1991 cannot be true and it has to be held that even the

laboratory attached to the hospital is not a standard one. A1 series showed bile salt was nil bile pigment is nil and that would indicate the patient

was all-right. But the evidence of PW 2 and documents produced in this case would clearly show that patient was suffering from jaundice and the

condition of the patient was getting deteriorated. In the circumstances we have no hesitation to hold that the opposite parties have committed

deficiency in conducting investigations and administering proper medicines. He has also committed deficiency as he mixed up both Allopathy and

Ayurvedic medicines in the treatment of the patient. On a careful consideration of the evidence we have no hesitation to hold that the opposite

party failed to make proper investigation and has not exercised reasonable skill and care in the treatment of child and administering proper

medicines.

Coming to the relief to which the complainant is entitled we find the District Forum awarded Rs. 25,000/-, against which the complainant has filed

an appeal, claiming higher compensation. It has come in evidence that patient was the only child of the complainant and she must have suffered

terrible mental shock and agony on the death of the patient. Learned Counsel for the opposite party pointed out that the patient was discharged

from the SAT Hospital at the request of the complainant and therefore there is some contributory negligence on the part of the complainant in

removing the patient from the hospital. However from the evidence of PW 3 it is clear that chance of recovery was very rare and remote and it is

at that stage the child was removed from SAT Hospital. We feel that the compensation awarded is on the low side and accordingly we enhance

compensation from Rs. 25,000/- to Rs. 40,000/-. The Appeal 533/1995 filed by the opposite party was dismissed and Appeal 662/1995 filed by

the complainant was allowed to the above extent. We direct the parties, to bear their respective cost. Appeal 533/1995 dismissed. Appeal

662/1995 allowed.