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Mukhthyar Singh v/s Kasturi Devi Munshi Lal Mahila Evam Shishu Charttable Hospital

    Revision Petition No. 208-209 of 2015 In Appeal No. 1474 of 2011 & 1526 of 2011

    Decided On, 10 August 2015

    At, National Consumer Disputes Redressal Commission NCDRC

    By, THE HONOURABLE MR. JUSTICE J.M. MALIK
    By, PRESIDING MEMBER & THE HONOURABLE DR. S.M. KANTIKAR
    By, MEMBER

    For the Petitioner: Islam Khan, Advocate. For the Respondent: Madhurendra Kumar, Advocate.



Judgment Text

Dr. S.M. Kantikar, Member

The complainant, Mukhthyar Singh's son (since deceased referred herein as a "patient"), was suffering from fever and vomiting. He was taken to Kasturi Devi Munshi Lal Mahila Evam Shishu Charitable Hospital (OP, in short referred to as "Kasturi Hospital") on 27.9.2010. After several pathology tests, Dr. S.K. Ravi, diagnosed it as viral fever, advised medicines. There was no cure, hence he got admitted in OP hospital on 30.09.2010 Again, few pathological tests were done, except Dengue test. As the OP hospital did not have MD doctor, the patient was taken to Gurunanak Hospital, Palwal, Haryana, in the late night of 30.09.2010. The patient became critical; hence, from there he was shifted to Fortis Escorts Hospital. On 01.10.2010, at 2.15 am, he was diagnosed as Dengue fever but the patient subsequently died in the morning at 11.15 am. Hence, alleging medical negligence, the complainant filed a complaint before the District Consumer Disputes Redressal Forum, Gautam Budh Nagar, (hereinafter referred to as "District Forum") for a compensation of Rs. 19,50,000/-.

2. The District Forum allowed the complaint and directed the OP to pay Rs. 5 lacs as compensation, Rs. 25,000/- for mental agony and Rs. 5,000/- as costs.

3. Against the order of the District Forum, both the parties preferred first appeal before the State Consumer Disputes Redressal Commission, Uttar Pradesh, Lucknow (hereinafter referred to as "State Commission"), i.e. F.A. No. 1474/2011 was filed by the OP, whereas F.A. No. 1526/2011 was filed by the complainant for enhancement of compensation. The State Commission dismissed the appeal filed by the complainant, whereas allowed the appeal filed by the OP.

4. Aggrieved by the order of State Commission, the complainant has filed this revision petition.

5. We have heard the counsel for both the parties. Learned counsel for complainant argued that in the pathology reports done on 27.09.2010 and 30.09.2010, no malarial parasites (MP) were found. OP performed only, Hemoglobin, TC, DC etc. Platelet count and Dengue test were not performed, not taken expert opinion. He further argued that the OP doctor adopted faulty practise, failed in the duty of care and not advised proper investigations to diagnose dengue. The doctor is not qualified and his enrolment in the Medical Council is doubtful.

6. The learned Counsel for the OP submitted that, the patient was brought to him in OPD for fever and vomiting on 27.09.2010. As the report was MP negative, viral fever was suspected. The tests were repeated after admission, which showed Malaria, to be negative, hence viral fever was suspected. Counsel submitted that, the complainant also filed an application under section 165(3) of the Cr.P.C. for allegation of medical negligence. Hence on the orders of Chief Judicial Magistrate, Gautam Budh Nagar, a Medical Board was constituted. The Medical Board opined that there was no negligence. Therefore, the complaint was frivolous. The complainant already took amount deposited before the District Forum by filing a forged affidavit stating reason of his daughter's marriage, however; that was already solemnized, long back.

7. After our thoughtful consideration, in this instant case, it is vital to observe the mode of diagnostic and clinical approach of the doctor. We have perused the literature on dengue from the medical text books. In our opinion, the OP adopted the correct mode of treatment. The basic investigations for fever were performed and the malarial fever was ruled out, on 27.9.2010, hence patient was diagnosed as viral fever and started symptomatic treatment for fever. Clinically, it was not suspected as Dengue. The OP started treatment with IV fluids, injection Stemetil and anti-piratic drugs also. Even as per medical literature, dengue at the initial stage, is not in a diagnosable condition. Thereafter, the patient was admitted in the OP hospital, on 30.9.2010, but due to serious condition, patient was referred to Guru Nanak Mission Hospital. After Dopamine infusion and Efcorlin, the patient was further referred to Fortis Hospital at 2.15 a.m. Therefore, the OP took proper decision to refer the patient. Referring the patient is not negligence. The counsel for complainant submitted that, more cases of Dengue were detected in Gautam Budh Nagar area, but nothing is placed on record to prove it. It is transpired from the observations made by State Commission that the complainant got released Rs. 1,50,000/- on the ground of marriage of his daughter, which marriage had already solemnized long back. It is evident from the marriage invitation card available on the file.

8. In Martin F.D'Souza v. Mohd. Ishfaq, AIR 2009 SC 2049 Hon'ble Supreme Court held that, "A medical practitioner is not liable to be held negligent simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another. He would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field". For instance, he would be liable if he leaves a surgical gauze inside the

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patient after an operation vide Achutrao Haribhau Khodwa & others v. State of Maharashtra & others, AIR 1996 SC 2377 or operates on the wrong part of the body, and he would be also criminally liable if he operates on someone for removing an organ for illegitimate trade. 9. It is unfortunate that the complainant lost his son, due to the circumstantial reality we take sympathetic view and request the OPs not to recover the money already withdrawn by the complainant. There is no merit in this revision petition, hence dismissed. Revision Petition dismissed.
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