COMPLAINT NO.260/2008

(Admitted on 30.09.2008)

PRESENT: 1. Smt. Asha Shetty, B.A. L.L.B., President
2. Smt. Sulochana V. Rao, Member

3. Sri. K. Ramachandra, Member

BETWEEN:

Mr.Abdul Majeed,

Aged 46 years, Muslim,

S/o. Late P.M. Mohammed,

R/o. II Block, Katipalla,

Idga Road, D.No.184,

Post Katipalla,

Mangalore. …….. COMPLAINANT



(Advocate for the Complainant: Sri.Deenanath Shetty)



VERSUS



Lion Dr.Ganesh Kumar,

Amritha Oushadhalaya,

Light House Hill Road,

Mangalore – 575 001. ……. OPPOSITE PARTY

(Advocate for the Opposite Party: Sri.Vinod F.F.)


ORDER DELIVERED BY PRESIDENT SMT. ASHA SHETTY:

1. The facts of the complaint in brief are as follows:

This complaint is filed under Section 12 of the Consumer Protection Act alleging medical negligence against the Opposite Party claiming certain reliefs.

The Complainant submits that he had approached the Opposite Party on 27.5.2005 to undergo treatment for diabetes. It is stated that the Opposite Party is an Ayurvedic doctor who has advertised that the medicine used are ancient proper medicine which provide treatment to the root cause, medicines are harmless and devoid of adverse effect. They will be a good remedy for asthama, arthritis, diabetics, hypertension, deficiency of blood vessels, nerve deficiencies etc. etc. The Complainant impressed by the advertisement approached the Opposite Party and taken treatment for a period of 1½ years and the Opposite Party prescribed D-TONE, S.S.COPE and DGG as a daily course during morning, afternoon and evening hours. That the Opposite Party assured the Complainant that the diabetics would be cured. On 18.5.2006 the Complainant had developed headache, bodily pain, fever and rashes all over his body and he was admitted to Port Trust Hospital Mangalore, where he was provisionally diagnosed as a FDA. The concerned doctor subjected the Complainant to requisite tests and provided the required treatment and medication. It is stated that the condition of the Complainant started to go worse and thereafter he was shifted to K.M.C and hospitalized in K.M.C. Thereafter on 20.5.2006 he was shifted from K.M.C. Hospital to Unity Health Complex where he has been hospitalized from 20.5.2006 upto 05.08.2006 and his condition was diagnosed as Steven Johnson Syndrome and left foot gangrene. Subsequently left foot of the Complainant was amputated.

It is alleged that the Complainant was never afflicted with any other kind of illness or disease or other complications except diabetics and he had not taken any drugs other than the aforementioned drugs prescribed by the Opposite Party. It is stated that the Opposite Party has failed to diagnose the kind of diabetics he was afflicted quite in reverse, the Opposite Party has falsely by professing as to having the skill or expertise, competence, qualification and knowledge to treat diabetics and had prescribed the aforementioned drugs to the Complainant having taken undue advantage by false assurances and representation. And further alleged that the Opposite Party failed to exercise a reasonable degree of care, skill or expertise and knowledge as expected of a prudent doctor under the normal circumstances. The Opposite Party has also lacked a proper approach and plan in providing treatment by prescribing and administering afore named drugs.

Further alleged that the Opposite Party without the knowledge as to the components or ingredients or long term as well as the short term effect of the afore named drugs on the body prescribed the medicine and treated the Complainant negligently. Because of the said the Complainant had to suffer untold misery, pain trauma, mental agony, discomfort and permanent incapacitation. And it is further alleged that the Opposite Party had no point of time made it known to the Complainant anything as to the adverse/side effect of the medicine prescribed by him. And further alleged that the Opposite Party had falsely represented that the drugs prescribed by him would cure diabetics. Hence the above complaint is filed by the Complainant as against the Opposite Party alleging medical negligence under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Hon'ble Forum to the Opposite Party to pay Rs.3,28,813/- the monetary loss towards the hospitalization and other expenses and Rs.1,00,000/- towards the compensation and cost of the proceedings.



2. Version notice served to the Opposite Party by RPAD. Opposite Party appeared through their counsel filed version and denied the entire allegations made in the complaint and stated that he has not done any negligence, careless and reckless. The Ayurvedic medicine taken from the Opposite Party will disclose its dosages on the products itself and the medicines does not have any side effect. This Complainant never suffered anything adverse as alleged in the complaint and it may be because the medicine consumed when the Complainant was admitted and treated in the various hospitals or failure to follow-up food control or some other physiological reasons for which this Opposite Party is not responsible and submitted that the Opposite Party is not liable to pay any compensation and prayed for dismissal of the complaint.



3. In view of the above said facts, the points now that arise for our consideration in this case are as under:

(i) Whether the Complainant proves that the Opposite Party has committed medical negligence?



(ii) If so, whether the Complainant is entitled for the reliefs claimed?


(iii) What order?



4. In support of the complaint, Mr.Abdul Majeed (CW1) filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him. One Dr.Muneer Ahammed (CW2) – Consultant Physician, Unity Health Complex Hospital, Mangalore, one Dr.Maria Kurvilla (CW3) – Dermatologist, K.M.C. Hospital, Mangalore and one Dr.Pramila Ullal (CW4) – Anesthetist, Ullal General Hospital, Mangalore – Summoned witnesses of the Complainant were examined and cross-examined by the learned counsel for the parties. Document No.1 to 60 were produced by Complainant as listed in the annexure and also produced MO1. One Dr.Ganesh Kumar (RW1) - Opposite Party filed counter affidavit and subjected him for cross-examination. Both parties produced notes of arguments along with citations.

We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before the Hon'ble Forum and answer the points are as follows:

Point No.(i): Affirmative.

Point No.(ii) & (iii): As per the final order.
Reasons

5. Point No. (i) to (iii):

It is a case wherein the Complainant has filed the above complaint made allegations of medical negligence against the Opposite Party. According to the Complainant, he was diabetic patient and he approached the Opposite Party and taken treatment for diabetics. That the Opposite Party is an Ayurvedic doctor prescribed Ayurvedic drugs to the Complainant. The main allegations of the Complainant is that, the drugs prescribed by the Opposite Party has developed Steven Johnson Syndrome and subsequently his left foot has been amputated in K.M.C. Hospital. And further alleged that the Opposite Party misled the Complainant by way of advertisement stating that the diabetics can be completely cured.



The case on hand, the Complainant has examined CW1 to CW4. All the three witnesses examined on behalf of the Complainant are Allopathic doctors.



Now the question for consideration is that the Ayurvedic drugs prescribed by the Opposite Party caused Steven Johnson Syndrome or in other words has resulted in drug reaction and thereby developed Steven Johnson Syndrome. The above question has not been answered by any one of the three witnesses examined on behalf of the Complainant. We are of the opinion that instead of examining Allopathic doctors the Complainant ought to have taken steps to examine Ayurvedic doctors because they are the best persons to speak on the subject.



The general principles on the subject of medical negligence have been elaborately explained in Jacob Mathew case 2005 (VI) SCC (1). The law like medicine is an inexact science. One cannot predict with the certainty the outcome of many cases. It depends on the particular facts and circumstances of the case and also the personal notions of the Judge concerned. In the above case, it has been referred two things are that the Judges are not experts in medical science rather they are layman. Moreover, Judges have usually to rely on testimonies of other doctors which may not necessarily in all cases be objective, since like in all professions and services, doctors too sometimes have tendency to support their own colleagues who are charged with medical negligence. A medical practitioner is not liable to be held negligent simply because things were drawn from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another. An error of judgment may or may not be negligent. It depends on the nature of the error. Also, now what is reasonable and what is unreasonable is a matter on which even experts may disagree. A medical practitioner would be liable only where his conduct fell below that of the standard of a reasonably competent practitioner in his field. The standard of care has to be judged in the light of knowledge available at the time of incident and not at the date of trial.



In this case, the Complainant alleged that the Opposite Party has prescribed some Ayurvedic drugs to the Complainant, the drugs prescribed by the Opposite Party has developed Steven Johnson Syndrome. The Complainant ought to have produced the text/authority/expert opinion to show that only because of the Ayurvedic drugs prescribed by the Opposite Party has developed Steven Johnson Syndrome. But in this case the CW2 Dr.Muneer Ahammed in cross- examination has stated that the Complainant has the history of diabetic since 1994 and he was discharged from Unity Hospital against medical advice thereafter admitted to KMC wherein the leg was amputated and further stated that the amputation is the only solution for gangrene. As we know all the drugs has some or the other side effects but the Complainant failed to prove that only because of the Ayurvedic drugs prescribed by the Opposite Party, the Complainant has developed Steven Johnson Syndrome. No doubt, the Complainant filed an application at the later stage to refer the medicines to the laboratory. The same has been rejected by this FORA with a direction to produce an authority/expert to show that the drugs has got side effect or only because of the said drugs Complainant developed Steven Johnson Syndrome rather than referring to the laboratory. In our opinion it is clear from the record that the Complainant already had diabetes since 1994 that means before approaching the Opposite Party and the same is not denied by him. Further he has taken treatment in many hospitals i.e., Port Trust Hospital, Unity Health Hospital, KMC hospital. The evidence of the CW2 clearly reveals that the Complainant was discharged against the doctor’s advice. Under such circumstances, one cannot come to the direct conclusion that the Ayurvedic drug prescribed by the Opposite Party only caused the above complications. From the above facts it is evident that the Opposite Party was not to blame in any way. A patient who does not listen to the doctor’s advice often has to face the adverse consequences. There is nothing to show from the evidence that the Opposite Party was in any way negligent rather it appears that the Opposite Party did his best to give treatment to the Complainant. Several doctors have been examined and we have read their evidence which is on record. The CW2 specifically stated that the Complainant had given treatment in Unity Health Complex hospital in connection with Steven Johnson Syndrome. Apart from the above disease the Complainant was suffering from diabetes mellitus and in the said hospital he had developed gangrene of the left foot. He has further stated that not because of the diabetics patient suffered from Steven Johnson Syndrome there is possibility that because of the diabetic patient suffers from gangrene to left foot. Further stated that a diabetic patient is pre-disposed to infection. The pre-disposition could lead to gangrene. The Steven Johnson Syndrome is not an infection it can be a consequence of infection. Apart from the above, the CW3 stated that the Complainant has taken treatment at Port Trust Hospital Mangalore and she has specifically stated that she has no knowledge about Ayurvedic medicine. The above statement of the Allopathic doctors signifies that the Steven Johnson Syndrome is not an infection but it is a consequence of infection. Since the Complainant was a diabetic patient is pre-disposed to infection. As we know, infection may cause even due to food habits. The Complainant was a diabetic patient and taken treatment from the Opposite Party cannot be said that only because of the Ayurvedic drugs the above disease is caused. We have carefully perused the drug produced before the FORA but the Complainant failed to examine Ayurvedic doctor who is expert in this field to show that the drugs prescribed by the Opposite Party has caused Steven Johnson Syndrome or drug reaction. In this case, the Complainant had taken Allopathic and Ayurvedic medicines but also not proved that he was under proper diet. Under such circumstances, we cannot come to the conclusion that the Opposite Party is negligent under this head.



As far as prescription of medicines are concerned, the Complainant produced personal health record issued by the Opposite Party Clinic. It is proved that the Opposite Party prescribed the medicine i.e., D-TONE, S.S.COPE and DGG Ayurvedic drugs to the Complainant. The Complainant also produced the medicines before this FORA which has been marked as material object No.1 i.e., MO1. We have perused the drugs as well as its cover, but the said medicines does not reveal the certification as well as the chemical combination of the ingredients and they are free from any adverse effect. It is pertinent to mention here that the drugs prescribed by the Opposite Party does not contain the particulars as required under the Drugs and Cosmetic Act 1940 and Drugs and Cosmetic Rules 1945. It is pertinent to mention here that the drugs prescribed by the Opposite Party should contain detailed ingredients/components while prescribing to the Complainant. The D-TONE also does not contain the components/ingredients included in the above food supplements/medicines. The Opposite Party being a Ayurvedic doctor while prescribing the medicines having responsibility towards his patients should not have prescribed such type of drugs where it has no particulars as required under the Drugs and Cosmetic Act 1940 and Rules 1945. But in this case Opposite Party being a doctor prescribed the medicines where it has no particulars as required under the Act which amounts to deficiency in service.



The another allegation of the Complainant is that, the Opposite Party has advertised in the Health Card Pamphlet that the diabetic is curable. The Opposite Party denied that the above said advertisement was not made by him and the medicines were not prescribed by him. But in cross- examination the Opposite Party admitted his mobile number, landline number and E-mail addresses found on the health card pamphlets produced before the FORA. The denial on the part of the Opposite Party cannot be considered because for the 1st time in his cross-examination he has denied the above documents. Apart from that we have perused the reply notice issued by the Opposite Party at the earliest point of time, wherein he has not denied the above allegations. Hence the statement made by the Opposite Party cannot be believed. The Complainant produced the health card issued by the Opposite Party to the Complainant, wherein the Opposite Party has specifically stated that diabetics can be completely cured i.e., D0iÀÄĪÉðÃzÀzÀ°è ¸ÀA¥ÀÇtð UÀÄtºÉÆAzÀ§ºÀÄzÀÄ (as per document No.1). In the above said health card made a tall claims in the sense of making it appear to the public that even the diseases which would be controlled but not curable in the very nature of things are curable by the treatment given to such diseases by the Opposite Party. The above advertisement offering permanent cure to the diabetes mellitus where it cannot be cured but controlled. The above advertisement definitely lured the Complainant to approach the Opposite Party. The Opposite Party being an Ayurvedic doctor should not have given such advertisement to the public by offering permanent cure of the diabetes. But in the given case, the Opposite Party gave an advertisement to the public which is against to the medical ethics as well as false claim offered to the public amounts to unfair trade practice as well as deficiency of service. Under such circumstances, we are of the opinion that though the Complainant failed to prove the medical negligence as against the Opposite Party but the above actions/service of the Opposite Party as a medical man to the public as well as to the Complainant amounts to deficiency in service/unfair trade practice. Under that circumstances, the complaint is partly allowed. In the interest of public as well as Complainant we hereby direct the Opposite Party to stop such misleading advertisement offering to the public henceforth and also suggesting/prescribing the medicines which have been sold against to the Drugs and Cosmetic Act, 1940 as well as Drugs and Cosmetic Rules, 1945. Apart from the above, we award Rs.10,000/- to the Complainant as compensation for the deficiency of service/unfair trade practice committed by the Opposite Party and Rs.1,000/- awarded as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.



6. In the result, we pass the following:
ORDER

The complaint is partly allowed. Opposite Party is hereby directed to pay Rs.10,000/- (Rupees ten thousand only) to the Complainant as compensation and Rs.1,000/- (Rupees one thousand only) as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.

On failure to pay the aforementioned amount within the stipulated time as mentioned above the Opposite Party is hereby directed to pay interest at the rate of 10% p.a. on Rs.10,000/- from the date of failure till the date of payment.


Copy of this order as per statutory requirements, be forward to the parties free of costs and file shall be consigned to record room.