R. Lakshminarasimha Rao, Incharge President
The opposite parties are the appellants. The complaint is filed by the respondent for a direction to the opposite parties to pay a sum of Rs.1,50,000/- towards the medical expenses incurred by the complainant and to pay Rs.13,50,000/- towards negligence, damages and costs.
The case of the respondent is that she visited the 2nd appellant hospital on 11-11-2010 as she was running fever with chills, vomiting and headache. The first appellant examined the respondent and advised her to admit in the second appellant hospital. The appellant hospital technicians collected blood sample for CBP, Widal and MP Strip test and as per the reports, typhoid and malaria were found negative. The first appellant administered Falcigo Inj. Mgnex Inj. Amikacin Inj, Quinine Inj. Pantacid Inj. Zofer Inj. And Calpol tablets, the temperature came down. The respondent had sudden loss of vision and there was no improvement. The respondent submitted that the first appellant conducted several blood examinations and referred her to Royal Diagnostics and Research Centre, Vijayawada on 15-11-2010 and referred to Dr.J.Srimannarayana, a consultant Cardiologist for 2D Echo cardiagram and on 17-1-2011 she was referred to Dr.G.V.Narendra, Aravinda Retina Vitreous Institute, Vijayawada where he concluded that there was signs of Bilateral Optic Nerve Pathology and the respondent spent Rs.5000/- over there.
The respondent submitted that the first appellant continued treatment till 21-11-2010 and discharged her to go a higher centre and collected Rs.40,000/- for her stay in 2nd appellant hospital. The respondent submitted that she went to L.V.Prasad Eye Institute, Hyderabad on 25-11-2010 and the doctors at LV Prasad Eye Institute concluded the reason for loss of vision is use of Quinine injection and she was treated in LV Prasad eye institute. The respondent submitted that she spent Rs.1,05,000/- for treatment in LV Prasad Eye Institute and also taking follow up treatment and submitted that she lost her vision at the age of 28 due to the negligence of the appellants.
The appellants 1 and 2 resisted the complaint contending that the respondent attended their hospital on 11-11-2010 on reference by Bayapa Reddy, RMP, Bhavanipuram Vijayawada complaining high fever chills and headache. The appellants investigated and advised MP strip test to rule out malaria, widal to rule out typhoid and CPB and prescribed tablets paracetrimol, Falcigo and Taxim O and advised her to come after 5 days. The respondent returned to hospital on 10.30 pm on 12-11-2010 with high fever and was admitted and as she was looking ill in view of endemacity of resistant malaria (rapid malaria test can be negative) not responded to artesunate, they started empirical treatment of IV Magnex, IV Amikcin, Falcigo and Quiine at recommended therapeutic doses as there were large number of malarial and dengue fevers . Initial doses of Quinine were given on 13-11-2010 and the respondent was closely monitored and as the respondent was responding to treatment. On 14-11-2010, the respondent complained sudden loss of vision and the duty doctor called Ophthalmologist, Dr.K.Nageswara Rao, who examined the respondent and advised to stop Quinine and advised IV Hydrocortisone 8th hourly suspecting optic neuritis and CRAO Central Retinal Artery Occlusion and shifted to ICU. In the evening of 14-11-2010, Dr.G.V.Narendra, Retina specialist was called and he examined and advised to start treatment for suspected bilateral CRAO with optic neuritis and also performed A/c Parcentesis to decompress both eyes and he advised to start IV Methyl Prednisolone 1 gram for 3 successive days as pulse steroid therapy followed by 1-1.5 mg body wt oral prednisolone tablets weekly till complainant reaching maintenance of dose of 10 mg.
The appellants submitted that the respondent was seen by retina specialist regularly and she started responding to the treatment and they also investigated the case of sudden blindness by endocarditis, abnormal serum lipids. The appellants submitted that the cardiologist examined the respondent on 15-11-2010 to rule out endocorditis and if there is any quinine toxicity and the cardiac examination was normal. The appellants advised VEP on 17-11-2010 and the respondent was sent to Aravinda Eye hospital to assess optic nerve pathways and VEP showed decreased amplitude of P wave and the respondent was subjected to fundus fluoreseien angiogram to rule out any arterial occlusion of retina or active optic neuritis and the respondent was under regular care of Dr.Narendra. The appellants submitted that the respondent was given systematic treatment and also specific treatment for suspected bilateral optic neuritis as advised by retinal specialist and discharged with advise to take opinion of higher centers also. The appellants submitted that after one month the respondent unrebutted Dr.Narendra and he found her to be good in central vision with visual acuity of 6/12 (BE) and her visuals fields got constricted and the respondent advised to taper the steroids slowly and advised to be under regular supervision. The appellants submit that there is no negligence on their part and prayed for dismissal of the complaint.
The respondent filed her affidavit and also examined Dr.Annie Mathai and Dr.Atuk Kumar Sahu as P.Ws.2 and3 and relied on Exs.A1 to A17. The first appellant filed his affidavit and also filed affidavit of Dr.G.V.Narendra Babu and relied on Exs.B1 to B9.
The District Forum allowed the complaint directing the appellants to pay jointly and severally Rs.1,00,000/- to the complainant towards compensation with interest at 9% p.a. from the date of the order and Rs.5000/- towards costs.
Feeling aggrieved by the order of the District Forum, the appellants filed this appeal contending that there was no lack of care or negligence in treating the respondent and that quinine is one of the internationally accepted and recommended drug for Malaria and the District Forum cannot find fault for administering the drug. The appellants further contended that Dr.G.V.Narendra Babu in his evidence stated that on 17-11-2010, he performed retinal Angiogram and there was no occlusion at that time and as per medical literature also the chances of loss of vision is one in one lakh of patients due to quinine.
The appellants contended that the District Forum failed to see that Dr.Anie Mathai (PW2) stated one of the reasons for loss of vision is quinine and the vision recovers on discontinuation of quinine and also stated that there was no medical negligence on the part of the appellants. The appellants further submitted that Dr.Atul Kumar Sahoo (PW3) in cross examination stated that if a patient is suffering from Malaria, the doctor may prescribe quinine and the treatment given to the respondent was the treatment given by a specialist as per medical record of the respondent, the District Forum failed to properly appreciate the medical literature filed on behalf of the appellants.
The point for consideration is whether the order of the District Forum is vitiated by mis-appreciation of facts or law?
The respondent approached the second respondent-hospital on 11.11.2010 with complaint of fever and chills and vomiting and headache and as seen from the copy of case record she was treated as outpatient. The first respondent advised for CBP (complete blood picture), Widal (typhoid test), and PV/PF (P-vivax/P-falciparum) tests. The pathology reports reveal negative report for plasmodium vivax and plasmodium falciparum. The first respondent prescribed Calpol, Falcigo(for malaria) and taxim (cafotaxime -antibiotic) and the medicine prescribed could control fever. However, vomiting continued necessitating her admission in the second respondent-hospital on 12.11.2010.
The case record would show prescription of IV Falcigo, IV Amikacin, IV Quinine, Calpol tablets, DNS IVF pantocid. The District Forum opined that the drugs prescribed include combination therapy for controlling malaria and other bacteria. The respondent complained loss of vision in the morning of 14.11.2010 for treatment of which she consulted ophthalmologist, retina specialist and the L.V.Prasad Eye Institute. The respondent states that she lost her vision due to administration of Quinine even when she had not suffered from Malaria whereas the appellants would submit that the test may give false negative result and the administration of Quinine would not amount to any negligence on their part.
Management of Malaria by S.R.Mehata shows that death rate due to malaria may be high in case diagnosis is delayed and the author recommends administration of antimalarial drugs in the area with transmission. The author opined:
'Death due to complicated malaria can be as high as 75% if case diagnosis is delayed or the patient arrives late. The atemisinine based rectal suppositories can be very effective in home/village setting in patients who cannot be given oral antimalarial , though not yet approved for use in our country. In ICU settings, properly administered loading dose of quinine has proved to be effective and safe in almost all therapeutic trials including our study on Indian Patients.
In areas with high transmission all fever cases where clinical features strongly suggest malaria proper first line antimalarials should be administered.
In very sick, deteriorating patients with impending organ failure a therapeutic trial with six doses of quinine is fully justified even if repeated blood examination for parasite is negative'.
Dr.Sandhya Kamath, professor & head of department of medicine, Topiwala National Medical College, Mumbai opined that the symptoms of malaria are fever, chills and vomiting and if malaria is not properly treated it would cause serious illness and according to him in some areas there has been constant number of malaria cases throughout the year. He opined :
'Malaria transmission differs in intensity and regularity depending on local factors such as rainfall patterns. Proximity of mosquito breeding sits and mosquito species. Some regions have a fairly constant number of cases throughout the year-these are malaria endemic-whereas in other areas there are ‘malaria’ seasons, usually coinciding with the rainy season.
Large and devastating epidemics can occur in areas where people have had little contact with the malaria parasite, and therefore have little or no immunity. These epdemics can be triggered by weather condition and further aggravated by complex emergencies or natural disasters.
1. Sequential fever, chills, sweating (Hot/stage followed by cold and then the west stage).
2. Nausea, vomiting
4. Muscle pain
7. Mild Jaundice
8. Breathlessness, Cough
10. Altered Sensorium, convulsions, Coma
11. Bleedng manifestatins'
Diagnosis in most of the diseases is made on the basis of symptoms besides certain pathological examination. However, in case of malaria the symptoms and signs as described in ‘Oxford Text Book of Medicine' are not diagnostic. Diagnosis and differential diagnosis are dealt with as under:
Malaria can present with wide range of symptoms and signs, none of them diagnostic. It must be excluded by repeated thick and thin blood smears in any patient with acute fever and an appropriate history of exposure. Until malaria is confirmed or an alternative diagnosis emerges, smears would be repeated every 8 to 12 h. However, if the patient is severely il, or the symptoms persist or deteriorate a therapeutic trial of antimalarial chemotherapy must not be delayed…. In malaria endemic regions, a large proportion of the immune population may have asymptomatic parasistaemia ( a condition in which parasites are present in the blood) and it cannot be assumed that malaria is the cause of the patients symptoms even if parasitaemia is detected. The diagnosis of malaria is missed in endemic zone, during an epidemic of some other infection (for example, meningitis, pneumonia cholera).
Malaria should be considered in the differential diagnosis of any acute febrile illness until it can be excluded by a definite lack of exposure by repeated examination of blood smear or by therapeutic trial of antimalarial chemotherapy'
The appellants contend that the MP test done may give false negative result. The medical literature mentioned above does not render definite opinion as to the exact test to be performed for diagnosis of malaria. Kakkilaya’s Rapid Diagnosis throws some light on false positive result and the author describes false positivity and false negativity of malarial tests as follows:
'False positivity: False positive tests can occur with RDTs for many reasons. Potential causes for PfHRP2 positivity, other than gametocytemia, include persistent viable asexual stage parasitemia below the detection limit of microscopy (possibly due to drug resistance). Persistence of antigens due to sequestration and incomplete treatment, delayed clearance of circulating antigen (free or in antigen antibody complexes) and cross reaction with non0falciparum malaria or rheumatoid factor. Proportion of persistent positivity has been linked to the sensitivity of the test, degree of parasitemia and possibly the type of capture antibody.
False negativity: On the other hand, false negative tests have been observed even in severe malaria with parasitemias > 40000 parasites/cublic liters. This has been attributed to possible genetic heterogeneity of PfHRP2 expression, deletion of HRP-2 gene, presence of blocking antibodies for PfHRP2 antigen or immune-complex formation, prozone phenomenon at high antigenemia or to unknown causes'
The District Forum observed that the appellants had not advised for blood smear examination which is considered as ‘golden standard test’ and instead advised for MP strip test and the District Forum opined that the first appellant could have prescribed mefloquine or cloroquine along with facigo instead of prescribing quinine. However, the District Forum has also concluded that failure of the appellants to advise for blood smear test or prescribe mefloquine or cloroquine along with facigo by themselves cannot be treated as an act of negligence on the part of the appellants.
The District Forum found certain degree of negligence on the part of the doctors as in the haste and without advising for blood smear test the first appellant proceeded to administer two malarial drugs combining them with two other drugs without initially supporting intravenous artesumate. In paragraph 16 of the order, the District Forum observed that administration of quinine to the respondent was a haste act on the part of the appellants and it opined :
In the present case the opposite party had infact started multi drug therapy on 11-11-2010 itself by prescribing Falcigo for malaria and Taxim for other bacteria. But initially only oral medicines were prescribed. IV injections were prescribed only on 2nd visit in the night of 12-11-2010. Instead of limiting the same drugs to IV the 1st opposite party had added one more for the malaria drug namely quinine and one more antibiotic Magnex. No doubt the material placed by the opposite parties include some news items revealing that malaria was wide spread with endemic proportions in these parts of state. One such news item dated 17-9-2010 quotes a minister saying that as many as 24 people died with viral fever including malaria in the preceding two months period. In Krishna district malaria was said to be rampant and 1977 cases of malaria were being treated in various hospitals in Krishna District. According to another study in the material it is stated that there were 36000 malaria cases in Andhra Pradesh in the year, 2010. The 1st opposite party being a medical professional and also DNB, would be knowing such endemic position in Andhra Pradesh and he was aware that RDT (Rapid Diagnosis Test) is not completely reliable test to base treatment. Then he should have ordered blood smear examination which according to literature filed by him is a gold standard test to know malaria. Without ordering such test he commenced treatment of malaria and without initially supporting with intravenous artesumate he prescribed a combination of two malarial drugs and combining them with two other antibiotics namely Amikasin and Magnex. Though it cannot be said that this line of treatment is wrong it appears there is some haste in choosing the line of treatment particularly administration of quinine.
After the respondent complained loss of vision on 14.11.2010, the ophthalmologist, Dr.Nageshwer Rao examined her and advised to stop IV Quinine and he suspected the problem to be optic neuritis and CRAO(central retinal artery occlusion) and he advised IV Hydrocortisone .The evening on the same day retina specialist, Dr. GV Narendra examined the respondent and advised to start treatment for suspected bilateral CRAO with optic neuritis and he advised for IV Methylpredisoione for 3 days.
The respondent consulted Aravinda Eye Hospital where the doctors conducted VEP test upon her and found decreased amplitude of P-wave.PW2-Dr.Annie Mathai stated that one of the reasons for loss of vision of the respondent is use of quinine and after being treated at LV Eye Hospital, the respondent regained central vision with visual acuity 6/12(BE) and her visuals field got constrained.
PW2 has deposed that from the history of tests conducted and the visual recovery, quinine toxicity could be the problem and even though the dose of quinine was normal the respondent developed idiosyncratic reaction which is an abnormal optic response to a normal dose of drug. Quinine toxicity is uncertain to occur and it can occur on quinine being administered to a patient suffering from malaria. It goes without saying that the appellant supported their decision to go for MP strip test without advising for standard test, viz. blood smear test and the appellant number 2-hospital has no facility of a lab technician’s service.
The District Forum found negligence on the part of the appellants during the pre-operative stage of treatment and it awarded a sum of Rs.1,00,000/-on account of loss of puerperal vision. The District Forum held the respondent to have regained her central vision as 20/20(equal to 6/6).It had concluded:
It is observed above that the opposite parties had taken all steps that could be taken by any doctor to treat the complainant after she complained loss of vision. Even LV Prasad Eye Institute said to have administered the same medicine as administered by dr.Narendra-DW2. It is further to be noted that quinine toxicity cannot be tested for precaution. It is further to be noted that Quinine toxicity may occur even in case of Quinine administration to a person who is actually suffering from malaria. The complainant lastly found to have normal vision 20/20 (equal to 6/6) but the field of vision has become constricted. It is not a case of total loss of vision. Taking all these factors into consideration we feel that the opposite parties may be directed to pay some reasonable amount as compensation to the complainant. In our opinion a sum of Rs.1,00,000/- may be allowed towards compensation and the opposite parties may also be directed to pay costs of Rs.5000/-.
The Hon’ble Supreme Court in 'State of Gujarath vs Shantilal Mangaldas' AIR 1969 SC 634.held the compensation to mean
'In ordinary parlance the expression compensation means anything given to make things equivalent; a thing given to or to make amends for loss recompense, remuneration or pay, it nee
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d not therefore necessarily in terms of money. The phraseology of the Constitutional provision also indicates that compensation need not necessarily be in terms of money because it expressly provides that the law may specify the principles on which, and the manner in which , compensation is to be determined and given . If it were to be in terms of money along, the expression ‘paid’ would have been more appropriate'. The Supreme Court held that the compensation to be awarded is to be fair and reasonable. In 'Charan Singh vs Healing Touch Hospital and others' 2000 SAR(Civil) 935 the Apex Court stressed the need of balancing between the compensation awarded recompensing the consumer l and the change it brings in the attitude of the service provider. The Court held 'While quantifying damages , consumer forums are required to make an attempt to serve ends of justice so that compensation is awarded, in an established case, which not only serves the purpose of recompensing the individual, but which also at the same time aims to bring about a qualitative change in the attitude of the service provider. Indeed calculation of damages depends on the facts and circumstances of each case. No hard and fast rule can be laid down for universal application. While awarding compensation, a Consumer Forum has to take into account all relevant factors and assess compensation on the basis of accepted legal principles, on moderation. It is for the Consumer Forum to grant compensation to the extent it finds it reasonable, fair and proper in the facts and circumstances of a given case according to established judicial standards where the claimant is able to establish his charge'. As the respondent regained her central vision and taking into consideration of the ratio in the aforementioned decision, we are of the view that the amount awarded as compensation, Rs.1,00,000/- is liable to be reduced to Rs.75,000/- and confirm the rest of the order. In the result, the appeal is allowed. The order of the District Forum is modified. Compensation of Rs.1,00,000/- is reduced to Rs.75,000/- and the rest of the order is confirmed. There shall be no separate order as to costs. Time for compliance four weeks.