w w w . L a w y e r S e r v i c e s . i n


Dr. Ganesh Prasad & Another v/s Lal Janamajay Nath Shahdeo

    Revision Petition No. 515 of 2004
    Decided On, 12 December 2005
    At, National Consumer Disputes Redressal Commission NCDRC
    By, HON'BLE MR. JUSTICE K.S. GUPTA
    By, PRESIDING MEMBER & MRS. RAJYALAKSHMI RAO
    By, MEMBER
    For the Appellants: Mr. Vijay K. Mehta, Advocate. For the Respondent: Mr. Lal Baig Nath Shahdeo, Authorised Representative.


Judgment Text
Mrs. Rajyalakhmi Rao, Member


This is a Revision Petition filed by Dr. Ganesh Prasad and Another, the original opposite parties in Complaint No. 19 of 2002 in District Forum, Lohardaga. Dissatisfied by the order of the District Forum, the petitioner filed appeal before the State Commission in Appeal No. 471 of 2003 which dismissed petitioner's appeal by order dated 3.2.2004 and affirmed the order of District Forum directing them to pay a sum of Rs. 5 lacs failing which it would attract 18% interest.


2. The Revision Petitioner No. 1, Dr. Ganesh Prasad and Revision Petitioner No. 2 Dr. Rita Chaudhary, wife of Dr. Ganesh Prasad are practicing in their own clinic Prasad Clinic' in Lohardaga. The present case relates to an incident in July 2002 when respondent/ complainant's son then aged 4 years suffered from cerebral malaria (Falciparum) and was brought in for the treatment to Prasad Clinic. Respondent Sri Lal Janamajay Nath Shahdeo brought in his son to the clinic on 28.7.2002 at 4.30 a.m. in the morning and admitted him in the Nursing Home. Immediately first line treatment was given by administering Rez-Q injection. It is contended that respondent No. 1 went for a morning walk and asked his wife to give E-mal injection if the condition of the child does not improve. It is alleged that Revision Petitioner No. 2 administered an overdose of E-mal injection to the 4-year-old child and as a result the child died immediately thereafter at 7.30 a.m. on the same day. The respondent filed the complaint alleging medical negligence and deficiency in service on the part of the petitioner.


3. The contentions raised in the complaint which had been accepted by both the Fora below regarding medical treatment given by' the Revision Petitioners are:


(i) that revision petitioner did not record the temperature of the child to enable him to give the correct treatment;


(ii) that he did not record the weight of the child which was necessary to give optimum medication;


(iii) that the medication that was to be given was not given corresponding to his weight and instead excess medication was given to the child which proved to be fatal;


(iv) that the report of the blood test relied by the revision petitioner was not a genuine one and that no blood test was conducted on the child and treatment was given for malaria without it;


(v) that the nurse who gave the injection was an untrained and unskilled nurse;


(vi) that the Revision Petitioner in an unprofessional manner injected Rez-Q as well as E-mal without ascertaining the cause and nature of fever;


(vii) lastly, that the revision petitioner should not have treated the patient when the case was no serious. They should have refused the treatment so that the child could have been shifted to GHS, Ranchi.


4. Revision Petitioner submitted that Master Ankit was suffering from malaria for the last 10 days and was treated in the village itself before he was brought to him. It is also stated that cerebral malaria is a disease with high mortaility rate and is widely prevalent in District Lohardaga and that WHO and Government of India has launched enhanced malaria eradication programme in this district along with the other similarly affected areas. The complainant's wife, Smt. Sarita Shahdeo herself was also treated in the clinic from 22.7.2002 and she was found to be suffering from falciparum malaria and on 25.7.2002 she was also given anti-malaria drugs namely Reziz and Larither. Her blood test was found to be P.F. positive as per blood test report dated 25.7.2002. She recovered after taking the same medication which is the established line of medical treatment for falciparum malaria. The revision petitioner further submitted that the respondent's son had also been found to be P.F. positive as per his blood test report dated 26.7.2002 entered at SI. No. 123 in the blood test register. It is clear that blood test was done on 26.7.2002 and medicines were accordingly prescribed. The revision petitioner admitted that there was no occasion to take another test in the early morning hours of 28.7.2002 when the patient was brought in a serious condition and was unconscious and the situation did not warrant any further blood test.


5. It is contended that the serious condition of the child did not warrant admission in the petitioner's clinic but was however admitted only on the insistence of the complainant who could not arrange a vehicle at that time to go to Ranchi. After advising that the child be immediately taken to RMCH Ranchi, the petitioner No. 1 allowed the child to be treated till the complainant takes the child to Ranchi. It is averred that it is in this scenario that the child was treated on humanitarian ground by the petitioners.


6. It is submitted that although it is normal practice of the petitioners to take the weight of the patient as is evident from the treatment card of the complainant's wife, Sarita Shahdeo, (Ex. 6) which shows his bona fides in the present case since the patient was seriously sick with ultered sensorium, the situation did not warrant taking the exact weight. The child was 4 years old and the petitioner estimated his weight to be around 16 kg. He averred that the injection 1 ml. of E-mal injection i.e., 75 mg. was well within the limits prescribed as per the brochure of E-mal which shows 2.5 mg. to 5.0 mg /kg. can be given as an effective does in clearing the malarial parasites. It is further averred that there is no medical or clinical report to show that administering 1 ml. of E-mal equivalent to 75 mg. of αβ arteether can cause death of a 4Vi years old child weighing 16 kg.


7. The main issues that has been dealt with before both the Fora are; whether the treatment that was given to four-year-child was acceptable according to the medical texts or not and if there is any deficiency in service or negligence in giving the treatment.


8. Learned Counsel for the Revision Petitioner argued that E-mal injection was administered by petitioner No. 2 and not given By7 an untrained nurse, as alleged by the respondent. In his deposition, wherein the complainant himself admitted that the boy was given injection by petitioner No. 2 which is reproduced below:


"Since Dr. Rita Choudhary gave an injection to the child by her own sense and hand, that is why I am understanding that the child was wrongly injected which resulted in the death of the child."


9. The State Commission had not considered this clinching evidence on record and held that petitioner guilty of negligence on the ground that the above injection was given by an untrained and unskilled nurse. Although Revision Petitioner insisted that the child should be taken to Ranchi, and as the respondent could not make arrangements and requested him to continue the treatment, the petitioner argued that had they not continued the treatment it would have also been considered to be medical negligence and deficiency in service.


10. We heard both the parties at length and perused the orders of the lower Fora and the record carefully. The allegations made by the respondent have been met with by the petitioner which amply proves that there is no deficiency in service of medical negligence by the revision petitioners. We have seen the record and eposition of witnesses, five witnesses from the complainant and three witnesses from the petitioner which is on record. Firstly, it has come on record that the boy Ankit was having fever for 12-15 days before he was taken to the hospital. Md. Nairn, witness No. 1 for the complainant, stated in his deposition that the child has been ill for 12-15 days; secondly, the question of blood test which has been contended seriously by both the parties is to be met. Annexure P/4 shows that the treatment given along with a noting P.F. positive on 26.7.2002 by the petitioners, there is no reason to disbelieve. The reason being the respondent himself in his deposition stated that the child was suffering from fever on 24.7.2002 and was brought to petitioner on 25.7.2001. It is admitted by him that medicines were given to the child and the fever came down but it again appeared on 26.7.2002. And further deposed, "Then we came to the same doctor taking the patient. On 26.7.2002 at the advice of the doctor blood test of the child was done. We got blood report on the same day at about 2 p.m. The blood test was done in the nursing home of the same doctor. The doctor did not give me report but he kept the report in his record. The doctor changed medicine according to the report. Dr. Sahib wrote another prescription."


11. The medical text book referred by the respondent on Severe Malaria in Children (Second Edition) states as follows:


"If parasitological confirmation is likely to take more than 1 hours, treatment should be started before the diagnosis is confirmed."


Further the respondent himself admitted that he paid Rs. 30 for the blood test and Rs. 50 as fees to the doctor. It is also stated by the respondent that the child was feeling well on 27.7.2002 but could not sleep in the night and hence the respondent brought him to the Revision Petitioner at around 4.30 a.m. This clinching evidence has not been taken into consideration by the lower Fora. Hence, on the issue of blood test we find State Commission has erred in their decision which has not considered evidence on record.


12. Regarding not recording the temperature of the child, we find revision petitioner in his wisdom after physical checking of the child and the previous history from 25.7.2002, merely because he has not written it in the record it cannot be said that he did not give the correct treatment. Doctor was fully aware of the seriousness of cerebral malaria (Falciparum) for which he has treated the respondent's wife just a week before and he was fully aware of the treatment to be given. The very fact that the child was brought in at 4.30 a.m. itself shows that child needed emergency help.


13. Having considered the boy's history, clinical finding and blood report, it was a clear case of malaria from the physical examination when the revision petitioners found that there was an enlargement of spleen, enlargement of liver, pyrexia (fever), presence of pollar from the heartbeat which is rapid in case of malaria, revision petitioner gave the treatment. To allege that revision petitioner did not give a proper dosage merely because he did not take the weight of the child makes no sense. The weight of the child is approx 16 kg. as estimated by the revision petitioner. The question to be considered is whether giving 1 ml. E-mal injection i.e., 75 ml was well within the limits prescribed. There is no medical or clinical report to show that administering 1 ml. of E-mal (equivalent to 75 mg. of " αβ arteether") can cause death of a 4 years old child roughly weighing 16 kg. It is contended by the petitioner that it is one of the safest drugs for malaria. We have gone through the literature that has been produced on record. Regarding this injection the literature given by the manufacturer THEMIS Medicare Limited is as follows:


"A single 2.5 mg. - 5.0 mg./kg. does of E-mal αβ Arteether) was effective in clearing a sexual parasite forms within 24 hrs. of treatment while the gametocyte number was significantly reduced at 24-26 hrs. of post treatment."


14. Further it has been brought to our notice that in complicated malaria, dosage can be given upto 150 mg/kg. According to medical reference Asthana O.P. Srivastava et al. 1997, "Clinical efficacy of a p Arteether in complicated and uncomplicated P. falciparum malaria", Ind. Jr. of Pharmacology (29:34), it is noted therein that child could be given 80 mg/kg dose maximum whereas 75 mg/kg was given. Revision petitioner gave 75 mg/kg. which is within the range of 1000 mg/kg. This is very much well within the prescribed dosage.


15. Revision petitioner also filed medical opinion of Dr. P.B. Roy, MBBS, DTM&H who studied the medical record and given his opinion that 'In Management of Malaria, if there is a doubt in identification of the species, treatment for Falciparum malaria should be administered. Even if blood test is negative, malaria may not be ruled out and thick blood film should be checked 1 and 2 days later to exclude the diagnosis.


I have studied the medical record of treatment given by Dr. Ganesh Prasad and Dr. Rita Choudhary. It is customary to start Parenteral Quinine in a child who is unable to take oral drug. If the child does not shows proper response, second drug Arteether such as E-mal is added to tackle resistant cases. E-mal injection is most acceptable drug for this purpose for a child of more than four years of age. The dose 40.to 100 mg of this drug on the first day of treatment is very safe. So far, no death has been reported with this drug in the specified dose."


16. We place reliance on the opinion of the faculty members of Department of Pharmacology, RIMS, Ranchi which is reproduced below:


"We the faculty members of Dept. of Pharmacology Rajendra Institute of Medical Science hold following opinion about anti-malarial drug ap Arteether.


(1) αβ Arteether is a Artemisinin derivative.


(2) These compounds are generally well tolerated and has virtually no side effect.


(3) At high doses transient abd. Pain diarrhoea and tinnitus can occur but these are very mild and transient and do not interfere with the therapy.


(4) They are remarkably safe for treatment of severe malaria including infections due to Chloroquinine and multi-drug resistant strains even in pregnant women.


(5) As per the trial conducted by IPCA Laboratories Ltd. the manufacturer of the drug a single does of lb Arteether upto 1,000 mg/kg I.M., did not show any mortality within 48 hrs. So the lethal dose of the drug was estimated to be 1 gm./kg."


The medical opinion of "Rinchi" Trust Hospital Dr. O.P. Mahansaria, MBBS, DCH (Gold Medalist), child specialist also expressed the same opinion as the others that no death has been reported with this drug in the specified "dose and that

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for a child of 4 years of age, a dose of 40 to 100 mg. is safe and the death of the child was due to the process of disease and its Complication. The treatment given, to the child was proper. 17. We also rely on the opinion given by Department of Pharmacology and Therapeutics, Rajendra Institute of Medical Sciences, Ranchi which is reproduced below: "It is our considered opinion and is also corroborated by standard text books of Pharmacology that Artemisinin' which is derived from Artemisia annua (a Chinese herb) has three derivatives namely? Artesunnate, 2. Artemeether 3. Arteether. Either of the three derivatives can be given e quinine in Chloroquine resistant cases of malaria." 18. After this abundant information that has been placed on record and medical expert opinions, the treatment given by the revision petitioner in this complicated case of malaria, we have no doubt in mind that treatment given to the patient is absolutely correct in the given circumstances. We do not see any negligence by the petitioner as alleged by the respondent. It is unfortunate that the child died in spite of best effoi&j2ut in by the petitioner. Although revision petitioners requested the respondent to take the child to a bigger hospital (RIMS, Ranchi) but on humanitarian ground he treated the child giving life saving injections and we do not find any medical negligence on the part of the petitioners. Revision Petition is allowed and Original Complaint is dismissed and order of the State Commission and District Forum are set aside. There shall be no order as to costs.
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