1. This commission vide its order dated 01.06.2016 allowed this Revision Petition and set aside the orders of both the fora below (State Commission and the District Forum), consequently dismissed the complaint. Being aggrieved the Complainant challenged the order of this commission before Hon’ble Supreme Court by filing Special Leave Petition(Civil) No.27633 of 2016.
2. The Hon’ble Supreme Court remanded this Revision Petition vide order dated 28.3.2018 with the following observations:
“The matter has been called out twice.
No one present on behalf of the respondent despite service.
We find that the Bench hearing the case of medical negligence did not have any Doctor as a Member of the Bench.
In our opinion, since there are concurrent findings of medical negligence, it would have been appropriate Bench which includes medical Doctor.
The special leave petition is disposed of.
Pending application, if any, are disposed of.”
1. Briefly stated facts are that on 5.10.2006, the complainant Ms. Mosamat Kanchan Devi took her husband late Naresh Ram Rajak (for short “the patient”) to the clinic of Dr. Manoj Kumar Bhagat (OP).Malaria was diagnosed and OP prescribed the medicine for malaria, but, there was no relief to the patient. Therefore on 9.11.2006 complainant again took her husband to the OP who prescribed few medicines on the same previous prescription letter and told that the patient will be all right. But, in spite of consuming medicinesthe condition of patient went on deteriorating. Then on 25.11.2006 and 29.11.2006 complainant went to the OP with a request to refer the patient to somewhere, but the OP doctor told that no need of any referral. He prescribed some other medicines and advised to eat milk, egg etc.Being not satisfied, on 29.11.2006 she took the patient to Dr. N. N. Mandal, wherein Hepatitis was diagnosed and Dr. N. N. Mandal referred the patient to RIMS, Ranchi on the same day but on way to Ranchi the patient expired. Being aggrieved due to the alleged negligent treatment causing death of her husband, she filed a consumer complaint before the District Forum, Chatra in Jharkhand. She also registered an FIR and filed a protest petition before CJM, Chatra.
2. The OP/Petitioner filed written version and denied the negligence. He submitted he is qualified as M.D. and employed as Medical Officer at additional primary health center, Gidhour, Chatra. He uses to do consultations in the evening at Bala Jee Medical Shop at Awal Muhalla. On 5.10.2006 the patient came to him with complaints of fever and cough. His blood test for malaria was positive, therefore the patientadvised to take medicines for malaria. Then, the patient came to him on 9.11.2006 and stated that he is feeling better, therefore petitioner advised vitamin (cobadex forte) for eight days. Thereafter, the complainant visited the OP on 25.11.2006 and 29.11.2006. OP further stated that the prescriptions dated 25.11.2006 or 29.11.2006 were false and fabricated; manufactured by the complainant.
3. On hearing the parties the District Forum allowed the complaint and awarded Rs.1 lakh with 12% interest per annum as compensation to the complainant to be directly by the OP. The OP- doctor appealed before the State Commission, it was dismissed and the order of District Forum was affirmed.
4. Heard the learned counsel on both the sides and perused the material on record inter alia the Orders of the District Forum, State Commission and this Commission.
5. The medical prescriptions revealed that, admittedly from 05.11.2006 the patient was treated antibiotic and cough syrup with at 4 PM Tab. Queenolar (300) 1x3 after meal (the antimalarial drug) for 8 days. On the same prescription on 09.11.2006 the OP prescribed Cobadex forte (multi-vitamin) for further 8 days. On careful perusal of prescriptions it is evident that the patient again approached OP on 25.11.2006 with complaints of body ache and pain in abdomen below umbilicus. The prescription shows medicines inj. Cefrine plus and Anafortan. The OP’s contention was those medicines are usually prescribed for Meningitis, Septicemia, Typhoid and UTI etc. and the patient never suffered those ailment. However, I note that “Cefrine” is an antibiotic; routinely the doctor prescribe antibiotic for the patient with fever. The drug Anafortan is used for abdominal pain, which the patient suffered here. Moreover, the clinical findings of patient were not recorded by OP in its prescription. Thus, it appears the medicines without were prescribed by OP without examining the patient and he missed the signs of hepatitis-jaundice to the patient. It was the failure in duty of care. On bare perusal of prescription that on both the days (25.11.2006 and 29.11.2006) the OP neither examined the patient nor made proper diagnosis. On 29.11.2006 itself, the patient approached another physician Dr.N.N.Mandal who examined, investigated the patient and diagnosed it as a case of severe jaundice – Hepatitis-B.
6. It is vital to go through the prescription of Dr.Mandal dated 29.11.2006. The history is recorded as:
“Yellow eye & urine – 3 days, fever -7 days, vomiting, pain in abdomen, loss of appetite” the Clinical findings of patient as “Icterus ++, BP 120/80, Per Abdomen - Ascites +, liver 2 finger”. The investigations revealed “Australia Antigen: + ve, Serum Bilirubin Total: 25 mg% [Normal: 0.2.to 1 mg%], SGPT- 199 U/L[ Normal up to 35 U/L].” Therefore, Dr.N.N.Mandal immediately referred the patient to RIMS, Ranchi but it was too late, the patient died on the way. Thus, in my view the act of Dr.Mandal was a reasonable standard of medical practice and the reference to RIMS was the proper decision.
7. To determine negligence, a three-stage test must be satisfied. (i) A person is owed a duty of care. (ii) A breach if that duty of care is established. (iii) As a direct result of that breach, legally recognized harm has been caused. The procedure therefore relies on establishing fault on the part of the doctor, hospital, etc. The person making the claim (the complainant) must establish on the balance of probabilities that negligence has occurred by the hospital or doctor.
8. At this juncture I would like to rely upon decision of Hon’ble Supreme Court which discussed about the duties of doctor towards the patient and the elements of medical negligence. In the case of Laxman Balkrishna Joshi vs Trimbak Bapu Godbole & Anr [1969 AIR 128], the Hon’ble Supreme Court, regarding duties of doctor, observed as:
The duties which a doctor owes to his patient are clear. A person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person when consulted by a patient owes him certain duties, viz., a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give or a duty of care in the administration of that treatment. A breach of any of those, duties gives a right of action for negligence to, the patient. The practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law require: (cf. Halsbury's Laws of England 3rd ed. vol. 26 p. 17).
9. In the instant case, there was the deficiency in service and failure in the duty of care from OP towards the patient. The patient was under treatment of OP since 05.11.2006, OP was aware that patient suffered malaria and he treated with antimalarial drugs.It is true that, malaria will not cause viral Hepatitis-B, but OP should aware that the antimalarial drug may cause drug induced hepatitis- jaundice. If OP would have examined the patient on 25.11.2006, the diagnosis of jaundice was so evident and treatment of jaundice would have started, but he prescribed Cefrime and Anafortan without examination of the patient. The clinical history recorded by Dr.Mandal, the high levels of serum Bilirubin(25 mg%) and
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SGPT(199 U/L)clearly indicate the patient was already suffering from severe hepatitis on 25.11.2006, which remained undiagnosed and untreated by the OP. Patient continued to deteriorate further and died on 29.11.2006 due to uncontrolled jaundice. It was failure to diagnose and failure of duty of care, not an accepted medical practice. It was neither standard practice nor a reasonable practice, thus negligence. 10. The OP cannot take shelter that, the alleged prescription dated 25.11.2006/ 29.11.2006 was fabricated. The onus was upon OP to prove the same. OP failed to produce any cogent evidence before the lower fora. 11. Based on the foregoing discussion, there was breach in duty of care from the OP and the medical negligence is established. I do not find any error apparent in the concurrent findings and no ground for any interference. 12. The revision petition is dismissed.