CONSUMER CASE NO. : 89/S/2007. DATED : 14.01.2010.

BEFORE PRESIDENT : SMT. ANITA DEBNATH,

Ex-Member of W.B. Higher Judicial Services and

Addl. Dist. & Session Judge,

President, D.C.D.R.F., Siliguri.

MEMBERS : SMT. PRATITI BHATTACHARJEE

&

SRI ASIT RANJAN DAS.

COMPLAINANT : SRI DIBYATAM SUBBA,

S/O Late Ps. Subba,

Rangbull, Kotthi Dhara,

P.S.- Jorbanglow, Dist.- Darjeeling.


O.Ps. 1. : DR. NIRMAL KUMAR BERA,

C/O. Jalan Medico,

Opp. Siliguri S.D. Hospital,

P.O. & P.S.- Siliguri, Dist.- Darjeeling.

2. : DR. ANIRUDDHA GHOSH,

C/O. Jalan Medico,

Opp. Siliguri S.D. Hospital,

P.O. & P.S.- Siliguri, Dist.- Darjeeling.



3. : DR. M. K. SHARMA,

C/O Mitra’s Clinic & Nursing Home, Hakimpara,

P.O. & P.S.- Siliguri, Dist.- Darjeeling.

4 : DR. C. P. SHARMA,

C/O Mitra’s Clinic & Nursing Home, Hakimpara,

P.O. & P.S.- Siliguri, Dist.- Darjeeling.



5. : MITRA’S CLINIC & NURSING HOME,

Hakimpara, P.O. & P.S.- Siliguri,

Dist.- Darjeeling
FOR THE COMPLAINANT : Sri Amit Lal Chakraborty, Advocate.

FOR THE OPs No.1, 3, 4 & 5 : Sri Bijoy Saha, Advocate.

FOR THE OP No.2 : Sri Nikhil Chakraborty, Advocate.

J U D G E M E N T

This is a case under Section 12 & 14 of the Consumer Protection Act, 1986 for realization of compensation for medical negligence on the part of the doctor concerned.

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The complainant is the father of Miss Upasana Subba since deceased who was a 2nd year student of Siliguri Govt. Polytechnic College. The said Upasana Subba (who is herein after referred to as patient) was suffering from mental depression for some time and was taken to Dr. Nirmal Kumar Bera for the purpose of treatment in the month of September, 2005 and started her treatment till April, 2007. The said Dr. Bera prescribed various medicines to the patient and all his instructions were duly followed. But Dr. Bera never informed him about the actual disease of the patient nor written in the prescription and all along assured the father about her recovery soon.

On 05.03.07 one new medicine namely LAMITOR OD 100 mg along with DEPAKOTE 500 mg was introduced. After having LAMITOR the patient was complaining about her uncomfortable feelings which was immediately informed to Dr. Bera who without paying any heed asked to continue with the said medicine as per the dose as prescribed by him.

On 28.03.07 the patient was taken to Dr. Bera and made complaint about the problem as faced by the patient about the rashes in the skin and mild breathlessness after taking LAMITOR. But it was not listened to rather she was asked to continue the said medicines. After 28.03.07 the patient concerned faced with other problems viz. skin disorder, itching, breathing problems and in spite of informing the above problem the OP No.1/Dr. Bera refused to stop any medicine as prescribed.

On 10.04.07 the patient was again taken to Dr. Bera as she was suffering from skin problem with high fever and only a Calpol was prescribed for high fever.

The overall health condition of the patient became deteriorated on 18.04.07 with breathing trouble with high fever and pain in body and severe skin rashes with Bulla formation all over the body. The patient was then advised by Dr. Bera to consult with Dr. Aniruddha Ghosh who on examination prescribed various medicines and withdraw all the medicines as prescribed by Dr. Bera. The patient was also advised ‘MEDROL’ 4 mg which is a steroid and whether there was any side effect by administering steroid has also not been communicated to the patient party.

It is further case of the complainant that the patient was admitted for the treatment of mental depression and after his treatment for about three months several problems were cropped up and Dr. Bera without listening to the problems as reported to him refused to stop the medicines even the dose with regard to the LAMITOR OD was prescribed in excess dose and the dose may be increased on following the medical guidelines. But under the guidelines LAMITROGINE for adult should be 25 mg on alternative days for two weeks but the said Dr. Bera from the first day started with



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100 mg with Depakote 500 mg and thereby Dr. Bera did not follow the guidelines in prescribing the said medicine LAMITOR OD 100 mg. it is further case of the complainant that the patient was admitted in the Medical Clinic and Nursing on 21.04.07 in a very critical condition. But Dr. M.K. Sharma who is not a Specialist doctor diagnosed the patient as suffered Steven Johnson Syndrome (S.J.S.) which is the product of continuous side effect of any drug. All pathological tests of the patient were done by the Nursing Home at Florence Pathological Laboratory. Under the treatment of Dr. C.P. Sharma who is the Palmonologist who deals with Lung related complications. But the patient never suffered from any lung problem and thereby no competent specialist doctor was provided for the treatment of the patient. But present condition of the patient concerned was not communicated to the complainant or patient’s party nor any specialist doctor was provided. On 24.04.07 the patient was given food supplement and two units of blood was also transfused to the patient. In spite of giving assurance of improvement by Dr. M. K. Sharma no development was noticed and ultimately he was informed about the massive cardiac attack of the patient concerned and put on ventilator and lastly the patient died on the self same date at 9.45 p.m.

After the death of the patient repeated request was made for Bed Head Ticket and details of medicines as undertaken but it was not supplied to whereas the patient party is lawfully entitled to get all those information. Due to wrong treatment, negligence and carelessness on the part of the Doctors’ coupled with the Nursing Home such unforeseen instant took place. Hence this case for compensation due to medical negligence, deficiency of service.

The OP No.1/Dr. N.K. Bera contested the case by putting separate W/V denying each and every allegation as made therein with a specific defence that the case is not maintainable and voluminous evidence and documentary evidence is required to be considered in the instant case for which this Forum has got no jurisdiction to try the instant case.

The specific defence is that the patient was examined by him several times. The patient was suffering from Bi-Polar Affective Disorder (BAD). Diagnosis has been written in the prescription after his examination. While the patient was under his treatment it was not complained as to that having an uncomfortable feeling. The patient party consulted with him on 10.04.07 but not due to skin problems but for her mental problem. She had a slight fever for which Calpol was prescribed for. The patient party was fully informed about the condition of the patient and she was referred to Dr. Aniruddha Ghosh as she was suffering from mild fever. After 10th April, 2007 the patient



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party did not consult with him although he was consulted for more than two years for the purpose of treatment of the patient. The medicine LAMITROGINE (LAMITOR) has been approved by the USFDA (i.e. United States Food and Drug Administration) for the treatment of B.A.Ds. Since the patient party is lack of medical knowledge the allegation of wrong medicine by prescribing LAMITOR is a wrong one. The dose of LAMAITOR as prescribed by him i.e. 100 mg is within the therapeutic range and there is no chance of any toxicity within the said dose. There is no negligence or deficiency of service on his part. As the patient concerned was suffering from a slight fever she was referred to Dr. Aniruddha Ghosh and there was no such physical condition of the patient concerned for which she was not referred to a specialist doctor. The instant case has been instituted motivatedly due to ignorance of medical knowledge with intention to hamper his reputation and goodwill and as there was/or is no deficiency on his part the case is liable to be dismissed with cost.

The OP No.2/Dr. Aniruddha Ghosh contested the case by putting W/V denying each and every allegation as made therein with a specific defence that he learnt from Dr. N.K. Bera on 10.04.07 about the critical condition and mild fever for which she was referred to him as a General Physician for her treatment. The patient came to his chamber at Jalan Medico on 16.04.07 with mild to moderate symptoms of skin rash and mouth ulcers with a previous history of tacking anti-depressants under the guidance of Dr. Nirmal Kumar Bera. No previous history or prescription of previous treatment was shown to him. The symptoms as revealed was non-specific allergic skin rashes for which specific medicines were prescribed i.e. Cetrizine as an anti allergic, Medrol as an adjuvant therapy with anti-allergic to treat the skin rashes and mouth ulcers. Pantoprazole to prevent gastric irritation, Cefixime to prevent super infection of the mouth ulcer, Chlorohexidine mouth wash to maintain oral hygiene, Calosoft lotion to achieve a local soothing effect and Calpol to relieve mouth ulcer pain. As the patient came with complaint of skin rash mouth ulcer proper treatment was made by him and he was never negligent or deficient in service on his part. She was also suggested for different blood test. As the patient thereafter did not turn up he does not know anything about the condition of the patient. The instant case has been instituted for illegal gain with intention to lower down his prestige and reputation, the case is liable to be dismissed with cost.

The OP No.3/Dr. Mani Kumar Sharma contested the case by putting W/V denying each and every allegation as made therein with a specific defence that the case is not maintainable.



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It relates with complicated questions on facts of highly technical nature and evidence of expert’s is required. Thereby the instant case involves elaborate, oral evidence and adducing of voluminous documentary evidence. Therefore, the Forum has no jurisdiction to entertain the purported claim as lodged by the complainant.

It is further alleged that after admission the patient renal function was mildly deranged due to dehydration but subsequently that function became normal. Since the urine out put of the patient was normal and Serum creatinine was within normal limits a Nephrologist was not consulted towards the treatment of the patient concerned. It is further alleged that the patient concerned suffered from TEN (Toxic Epidermal Necrolysis). The facilities available at Mitra’s Nursing Home were adequate. The disease TEN is an acute, severe, often life threatening skin reaction which is characterized by extensive necrosis and detachment of the epidermis and mucous membranes. The mortality of patient suffering from disease like TEN is up to 70 % and such disease is a more severe form of SJS (Steven Johnson Syndrome) and no such statement as alleged by the complainant about her out of control is a false one and he never assured the patient party for her early recovery.

It is further alleged that the patient had extensive ulcers in the mouth Pharynges and larynges. She could not eat anything for which intravenous nutrition was started from 24.07.07 to prevent mal nutrition. As patient had loss of plasma and blood form the ulcers two units of blood was transfused. She was kept with Intensive Care Unit and also suffering from high fever and Respiratory distress from 24.04.07 and Oxygen level in the blood decreased for which she was undertaken Oxygen supplementation. Ultimately, the patient concerned had to be intubated and put on ventilator. She had cardiac arrest and ultimately in spite of their best efforts she died at 9-30 p.m.

The complainant has filed the instant case motivatedly having no medical knowledge for illegal gain. There is or was no negligence on his part towards the treatment of the patient concerned and there was no deficiency of service on his part for which the case is liable to be dismissed with cost against him.

The OP No.4/Dr. Chandra Prasad Sharma contested the case by putting W/V denying each and every allegation as made therein with a specific defence that the case is not maintainable.

It is further contended that he is the doctor by profession and specialized in the field of Pulmonary and Critical Care Medicine. He is an MD & DM and obtained highest medical degree in Critical Care Medicine in India.

It is specifically pleaded that the patient was admitted under him in a critically ill



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condition with respiratory distress high fever and skin problem on 21.04.07 in Mitra’s Nursing Home. The patient was treated by him and Dr. M.K. Sharma who diagnosed the patient to be suffering from TEN which is a fatal condition. The patient had extensive ulcers in the mouth Pharynges and larynges and she could not eat anything. Intravenous nutrition was started from 24.04.07 to prevent mal nutrition. The patient had loss of plasma and blood form the ulcers for which two units of blood was transfused. Since there was infection in the form of fever and respiratory distress from 26.04.07 and as her Oxygen level in the blood decreased on 28.04.07 she was under taken Oxygen supplementation. Even she was put on ventilator. But ultimately she had cardiac arrest which could not be revived despite resuscitation and was declared dead at 9-30 p.m. The cause of death was mentioned therein as Septicemia, Toxic Epidermal Necrolysis and ARDS. The patient was in a critical condition suffering from SJS and also TEN which is more severe form of SJS. The condition of the patient was all along communicated to the patient party who was or is lack of medical knowledge for which the instant case has been instituted motivatedly and for illegal gain. There was no negligence or deficiency in service on his part for which the case is liable to be dismissed with cost.

The OP No.5/Mitra’s Clinic and Nursing Home contested the case by putting W/V through one Dr. K. C. Mitra one of the partners of the said Nursing Home. It is alleged that the patient got admission with extremely critical condition. She was admitted in CCU on observing formalities for admission, that is, consent forms and medical check up by the RMO who examined the patient in the Ambulance. As she was critically ill she was admitted in the CCU under care of Dr. C.P Sharma who is a Specialist Trained in Pulmonary and critical care medicine. On examination Dr. C.P. Sharma diagnosed the patient suffering from SJS and as such the skin specialist was also requested and Dr. M. K. Sharma who is a specialist Dermatologist was consulted and it was diagnosed of a patient of TEN which is a fatal condition.

It is further alleged that Florence Pathological Laboratory is well equipped laboratory with all modern facilities under the control of Dr. S. Mitra who is an MD in pathology and MRCP in pathology from England. The Laboratory has also a full time Bio-Chemist. The pathological tests were done in the Nursing Home for better and faster management of the patient. It is specifically denied the allegation of not providing a competent specialist doctor for the treatment of the patient concerned who was suffering from TEN. The mortality of patient suffering from this type of disease is up to 70%. It is further alleged no such request was made either by the patient party or student of Siliguri Polytechnic for consultation with other specialist doctor. Since the physical



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condition of the patient became deteriorated, loss of plasma and respiratory trouble from 26.04.07 and ultimately she had Cardiac Arrest for which life support life ventilator was supplemented. Even then there was no improvement on her health and died on 29.04.07 at 9-30 p.m. The cause of death as mentioned in the Death Certificate was Septicemia, TEN and ARDS. Since the complainant has no medical knowledge and despite best efforts the death of the patient took place and the instant case has been filed with ulterior motive and for illegal gain and the Nursing has no fault on its part and there was no negligence and deficiency in service on its part, the case is liable to be dismissed with cost.

Upon consideration of the pleadings of the respective parties the following issues are framed for adjudication :-

1) Is the case maintainable ?

2) Has the Forum any jurisdiction to try the instant case ?

3) Is there any deficiency of service and Unfair Trade Practice on the part of the OPs ?

4) Is the complainant entitled to get any compensation as prayed for ?

5) To what other relief/reliefs as prayed for ?



Point No.1 & 2.



The Ld. Advocate on behalf of the OPs advanced argument that this is a case of medical negligence which requires to be proved by oral and voluminous documentary evidence. Under the Statute the Consumer Forum is to deal with simple matter when voluminous documentary evidence is to be considered the proper remedy is to go before the Civil Court for redressal. The Ld. Advocate on behalf of the complainant on the otherhand, submitted that this Forum is competent to deal with the case of medical negligence and it is created in addition to deal with the matter despite having Civil Court for redressal.

There is no doubt that the Statute does not contemplate the determination of complicated issues of fact involving taking of elaborate oral evidence and adducing of voluminous documentary evidence and a details scrutiny and assessment of such evidence. But statue under the Act have vested the Forum with the power to examine witness on oath and to order discovering of the documents. But such power is to be exercised in cases where the issues involved are simple such as defective quality of any goods, purchased or any shortcomings or inadequacy in the quality, nature and manner of performance of a service which the Respondent has contracted to perform for consideration.

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Section 2(1)(d) defines ‘Consumer’ which means any person who buys any goods for a consideration which has been paid or promised or partly paid and partly promised or under any system of deferred payment and includes any users of such goods.

Sub-Clause 2(1)(d) (ii) defines hires or avails of any services for a consideration.

In the instant case the complainant has lodged against the OPs for their negligence in treating his daughter and due to wrong treatment the death of this daughter took place. All the doctors’ led evidence denying the claim of the complainant. But in fact service as provided under 2(1)(o) of the Consumer Protection Act, 1986 was taken on consideration. Therefore, the nature of dispute obviously comes within the purview of ‘Consumer Dispute’ as provided under Section 2(1)(e) of the Consumer Protection Act, 1986. Therefore on careful consideration of the materials on record and the evidence as led by the respective parties we are of the view that that the intention of the legislature to create the Forum to deal with the matter in question in addition to and not in derogation of any other law for the time being in force. Therefore, the dispute in question can not be considered as a complicated one for which it does not justify to refer the instant case to the Civil Court having jurisdiction thereof for consideration. Rather it is fit and proper and justified also to dispose of the instant case before this Forum on the point of medical negligence as alleged.

Considering all facts and circumstances of the instant case we are of the view that the complainant is a Consumer under the law and the case is maintainable and also this Forum has jurisdiction to try the instant case being simple in nature.

Thus the issues are decided in favour of the complainant.

Point No.3 – 5.

The Ld. Advocate on behalf of the complainant advanced argument that this is a case of medical negligence causing death of a young girl who was a student of Polytechnic. Her death took place due to severe complication arose out of drug introduced. The daughter of the complainant, Upasana Subba since deceased was suffering from mental depression for which she was taken to Dr. Nirmal Kumar Bera for consultation and treatment in September, 2005 and she was all along under the treatment of Dr. N.K. Bera and instruction and direction was all along followed till April, 2007. On 05.03.07 a new medicine LAMITOR OD 100 mg was advised first along with other medicine like Depakote 500 mg. After having the said medicine LAMITOR there was complaint of uncomfortable feeling and despite informing the same to Dr. Bera no proper care was taken by Dr. Bera and listen to. Subsequently, on 28.03.07 while the patient was taken to Dr. Bera and made complaint about such feeling as made by the patient



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concerned and as there was rashes in the skin and mild breathlessness the said medicine was not withdrawn rather it was continued. Several other problems like skin disorder, itching, blistering and breathing problem was started and the patient was again taken to Dr. Bera on 10.04.07. The medicine was prescribed as before only a medicine of Calpol was prescribed for high fever. It is further urged that immediately, on 16.04.07 the patient concerned was referred to Dr. Aniruddha Ghosh for better management. She was taken to Dr. Ghosh who prescribed Tab. MEDROL 4 mg but did not diagnose properly. Since the condition of the patient became deteriorated she was admitted in Mitra’s Nursing Home. According to Ld. Advocate on behalf of the complainant that introduction of medicine LAMITOR OD which is a specific medicine for treating the complication of Seizure. There is specific medical instruction and guidelines that if LAMITOR OD 100 mg is used along with DEPAKOTE 500 mg (Valprate) the dose of Lamitrogine for adult should be 25 mg on alternative days for two weeks followed by 25 mg once daily for two weeks increase by 25 – 50 mg every one or two weeks. If any sign of Hypertensitivity after taking Lamitrogine the said drug should be withdrawn. It is further urged that subsequently, the patient was taken to Mitra’s Medical Centre in a very critical condition and she was diagnosed as Striven Johnson Syndrome. In the Nursing Home several Doctors were examined the patient concerned diagnosed as S.J.S. even then no proper care was taken as per guidelines of treatment of SJS. All the Experts Dr. Sujit Kumar Das, Psychiatrist, Doctor of MD Medicine and Dermatologist categorically opined in their evidence if specific drug is detected to have caused SJS/TEN the said specific drug should be withdrawn immediately and the patient be treated as a burnt patient. Even the patient was not transferred to burn care centre in spite of suffering from SJS or TEN. As proper treatment was not undertaken to the patient concerned followed by unfortunate death of a grown up lady and when proper guidelines as prescribed by Medical Council of India has not been followed the case of medical negligence as made by the complainant has been proved by documentary evidence holding all the doctors as responsible and negligent causing the death of the patient concerned.

The Ld. Advocate on behalf of the OP No.1/Dr. Nirmal Kumar Bera urged that the complainant did not lead any evidence even did not cross examine the OP No.1/Dr. Bera who led evidence supported by affidavit denying the claim of the complainant about any wrong treatment undertaken to the patient concerned. In this regard it has been further urged that three neutral experts in the field of Psychiatry, Dermatology and medicine were examined by the complainant to prove his case of alleged medical



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negligence. But none of three doctors disagreed with the prescription prescribing the medicines to the patient concerned rather all of them categorically stated in their evidence. Rather Dr. Sujit Kumar Das categorically opined that he has not seen any reaction of skin rash after application of LAMITOR OD. It has been further opined that in a case of suffering from Bi-Polar Affective Disorder the initial duty of the Psychiatric is to control the problem of Bi-Polar Affective Disorder and not the side effect. Dr. Sashwati Halder opined that idiosyncratic reaction may be caused from any allergic reaction namely drug, food, dust, pole grains etc. and it is very difficult to identify a particular drug out of a number of drugs which caused it.

It is further urged that in a recent landmark Judgement the Apex Court in the case of Jacob Matthew Vs State of Punjab and another it has been held that a Physician would not assure the patient of full recovery in every case. A Surgeon can not and does not guarantee that the result of surgery would invariably be beneficial much less to the extent of 100% for the person operated on. The only assurance which such a professional can give can be understood to have given by implication is that he is possessed of the requisite skill in that branch of profession which he is practicing and while undertaking the performance of the task entrusted to him he would be exercising his skill with reasonable competence. This is all what the person approaching the professional can expect. In this context another decision relating to F. D’Suza Vs Mohd. Ishfaq reported in 2009 AIR SCW 1807 = 2009 CTJ 352 (SC) has also been relied on. It is further urged that negligence can not be presumed but it has to be established and reliance has been placed upon a decision reported in 1999 (3) CPJ 9 N.C.

OP Nos. 3 – 5 advanced argument similarly as ventilated by the OP No.1. in addition it has also been submitted that there was no latches or negligence or deficiency in their part and proper care and better management was taken to the patient concerned who was diagnosed as a patient of SJS on seeing the critical condition of the patient concerned she was admitted in CCU even specialist doctor in the line of the treatment as needed for the patient concerned was provided for. It is further urged that all the three experts as examined by the complainant supports the defence case of the OP about the treatment as made therein. Since the complainant did not render any evidence and cross examination the OPs under the law the defence case remains unshaken. It is further argued that the negligence can not be presumed but it must be established by cogent evidence relying several decisions specifically the case of Jacob Mathew, Martin F. D’Suza and the Bolam’s Rule coupled with the case of Kanhaiya Kumar Singh Vs Park medical and Research Centre.



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The Ld. Advocate on behalf of the OP No.2 also advanced argument that on examination the patient concerned and also considering the symptoms of patient as skin rash and mouth ulcer proper medicine was prescribed. But the patient concerned never reported to or made any complaint about her suffering from mild fever. It is further urged that all the specialist doctors categorically stated MEDROL can be used for the treatment of S.J.S. and there would be no chance of drug reaction. So, none of the doctors, as experts, made any adverse comment against the medicine prescribed by the OP No.2/Dr. Ghosh. Therefore, there is no latches on the part of the OP No.2 in making treatment for a few days to the patient concerned and in a case of medical negligence burden lies upon the complainant to prove it and it would also to be contested on the basis of the materials on record. In this context it has been urged that expert’s opinion is necessary for decision about any commission of wrong in making treatment to the patient concerned and also relied several decisions including Jacob Mathew’s case.

In the instant case it has already been reflected that complainant did not choose to lead evidence supported by affidavit although the instant case has been furnished with affidavit. In addition the complainant was examined three specialist doctors in the line of Medicine, Dermatology and Psychiatric and also furnished several documents. On the other hand OP No.1 – 5 led evidence on affidavit. But they were not cross examined.

Section 13 (2)(b) of the Consumer Protection Act, 1986 lays down that whether the OP on receipt of a copy of the complaint referred to him. Under clause (a) denies or disputes the allegation contained in the complaint or omits or fails to take any action to represent his case within the time given by the District Forum, the District Forum shall proceed to settle the Consumer Dispute.

Section 13 (i) on the basis of evidence brought to its notice by the complainant and the OP whether the OP denies or disputes the allegation contained in the complaint.

In this regard it has been urged by the Ld. Advocates on behalf of the OPs that the complainant did not chose to come forward to lead his affidavit. Thereby the defence case when all of them led evidence on affidavit remains unshaken and the case of the complainant in this regard has no leg to stand.

It is evident that the complainant did not lead evidence personally but to support his case of medical negligence examined three witnesses in the line of allegation as made against the OPs. All those witnesses are expert in their line as of Psychiatric, Medicine and Dermatology. Thereby non-leading evidence by the complainant can not be considered as fatal as urged by the Ld. Advocate on behalf of the OP No.1 to 5. The complainant is a lay man having no knowledge of medical science. Initially, the



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complainant narrated his case with allegation of medical negligence and no proper treatment was under taken by the OPs on affidavit and if he leads evidence in support of his case in the line of the incident as narrated in his complaint it can not be develop his case of medical negligence until and unless it has been examined by expert evidence. By leading evidence through expert concerned it carries much weight. Therefore, the argument in this regard non-adducing evidence on affidavit by the complainant does not carry much weight.

Under this facts and circumstances, when this is a case of medical negligence and led evidence by the complainant through his expert doctors and the evidence as led by the OPs coupled with the materials as placed for appreciation it is to be considered on its basis on merit.

It has already been reflected above that the complainant took his daughter Upasana Subba who was suffering from mental depression for some time to Dr. Nirmal Kumar Bera for the purpose of treatment in the month of September, 2005 and she was under his treatment till April, 2007.

Upasana Subba, the patient herein after referred to as the patient.

The OP No.1/Dr. Bera did not deny it about the starting of treatment to the patient concerned from the time as contended by the complainant who also submitted several medical papers in support of his contention.

The Xerox copy of the Prescription dated 08.09.05 issued by Dr. Nirmal Kumar Bera goes to show that patient was diagnosed as B.A.D. – 1 (M). Such prescription reflects about the several medicines including Tab.-Depakote 500 mg. Thereafter, the patient was taken on 18.09.05. In the prescription dated 18.10.05 (1/C) reflects that the condition of the patient was noted as improved in left column of the said prescription. More or less all other medicines as prescribed before has been prescribed save and except Tab Serenace. 18.11.05 there is also remark about the improvement of the patient concerned and similar types of medicines were also prescribed. The patient was again taken to Dr. Bera on 27.02 year of which can not be ascertained and there is remark on the left side as to that doing well and she was advised for report after two months. Thereafter, the prescription dated 05.03.07 issued by the said Dr. Bera goes to show that the patient was then attained at the age of 19 years and she was initially treated at the age of 17 years as it appears from the prescription dated 08.09.05. The said prescription goes to show that the patient was described as BAD (M) and different types of medicines were prescribed including Depakote 500 mg and a new medicine LAMITOR OD 100 mg was prescribed. Subsequently, on 28.03.07 similar types of medicines were prescribed and it



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has been written therein as improved and the prescription dated 10.04.07 also speaks about the similar types of medicines have been prescribed for. So, continuance of Depakote 500 mg and LAMITOR OD 100 mg reveals in addition to a Tab. Calpol as prescribed on SOS basis.

According to the complainant the problems started by application of LAMITOR OD 100 mg together with Depakote 500 mg.

It further reveals that the patient was then taken to Dr. Aniruddha Ghosh on 16.04.07 (1/F) with the history of skin rash and mouth ulcers as noted in the left column on the top of the said prescription where from it reveals that all the medicines as prescribed by Dr. N.K. Bera have changed by Dr. Ghosh and introduced a new medicine Tab. MADROL 4 mg 1 Tab. TDS for three days with other several medicines.

The prescription dated 19.04.07 (1/G) issued by the said Dr. A. Ghosh advised for different Blood tests like R/E, MP/MA, Urine R/E, OC/S.

Blood Report dated 21.04.07 issued by Florence Pathological Laboratory goes to show that Serum Urea and Serum Creatinine appeared to have been more than that of normal range for which rechecked was advised for.

Save and except Pathological report and relating to the admission of the patient in Mitra’s Clinic no other documents have been placed by the complainant about the nature of treatment as under taken by the Mitra’s Clinic and Nursing Home nor the OP No.3 – 5 furnished any medical paper to substantiate their defence about the nature of treatment as undertaken towards the patient concerned.

In this regard case summery (8/A to 8/D) issued by Dr. C.P. Sharma, Mitra’s Clinic and Nursing Home where from it reveals that the patient was brought to the Nursing Home on 21.04.07 at 11-05 a.m. with full of irruption over the body with Bulla formation and high fever. Her temperature was running then 104˚ F. Such Bulla was covering the entire skin and she was primarily diagnosed as Steven Johnson Syndrome (S.J.S.). She was under the care of Dr. M.K. Sharma. She was also diagnosed as TEN. So, from the nature of the history as made by Dr. C.P. Sharma and the nature of the allegation as made by the complainant that deterioration of the patient concerned cropped up by wrong treatment as alleged and according to the complainant such condition was aggravated by appliance of medicine MEDROL issued by Dr. A. Ghosh. In this context it is also the case of the complainant that despite diagnosis as S.J.S. and TEN no proper care has been taken by the other Doctors including Nursing Home concerned/the OP No.3 – 5 in terms of the guidelines for the treatment of SJS and TEN.

Let us now consider the case of the complainant about the application of



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LAMITOR OD and MEDROL as prescribed by OP No.1 and OP No.2 respectively.

LAMOTOR OD is a medicine under the group of Lamitrogine for the treatment of anti convulsion as prescribed by IDR. It has been prescribed for dose initially 25 mg once daily for two weeks, increased by 50 to 100 mg every 1 to 2 weeks. Maintenance 100 to 200 mg daily as a single dose or in two divided doses.

Depakote is a composition of Divalproate Sodium as described at page-237 of IDR.

MEDROL is a group of Methyl Prednisolone. MEDROL a corticosteroid drug, is used to reduce inflammation and improve symptoms in a variety of disorders, including Rheumatoid arthritis, acute gouty arthritis and severe cases of Asthma. MEDROL may be given to people to treat primary or secondary Adrenal Cortex in-sufficiency (inability of the Adrenal Gland to produce sufficient hormone). It is also given to help treat the following disorders :-

i) Severe Allergic conditions (including drug induced allergic states);

ii) Blood disorders (Leukemia and various anemias).

MEDROL lowers resistance to infections and can make them harder to treat. MEDROL may also mask some of the signs of an infection, making it difficult to diagnose the actual problem. The use of MEDROL may occur side effects which include abdominal swelling, allergic reactions, face redness, fluid and salt retention, headache, high Blood Pressure, Stomach ulcer. It has also been cautioned about cause of allergic reactions including Asthma in some people. It has further been cautioned that large doses of MEDROL may cause high Blood Pressure, salt and water retention and Potassium and Calcium loss. It may be necessary to restrict salt intake and take a Potassium supplement (information from Healthsquare.com) with regard to MEDROL Drug Information and Side Effects (Methyl Prednisolone) on Health square.com.

The OP No.1/Dr. Nirmal Kumar Bera in his affidavit in chief categorically stated in his evidence coupled with W.V. that the patient was suffering from Bi-Polar Affective Disorder (BAD) and the patient was treated as per Standard Treatment Protocol of BAD. He categorically denied about any complaint/problem as made by the patient or the patient party. Even he denied or complained about rashes in the skin and mild breathlessness after taking LAMITOR OD. He further emphatically denied about any consultation and proposal for allergy test and lastly consulted on 10.04.07 for her mental problem but not for skin problem. According to him that Lamitrogine (LAMITOR) has been approved by USFDA for the treatment of BAD and such medicine and Depakote can be prescribed together and LAMITOR OD 100 mg is within the therapeutic range and there is no chance of toxicity within the said dose.



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It is the case of the complainant that while the patient was running with high fever with skin rash with Bulla formation she was referred by Dr. Bera to Dr. Aniruddha Ghosh for better management. The prescription of the Dr. Bera as mentioned above does not reflect any referral note with history as to the nature of the ailment for which the patient concerned was referred. But at page–2 of Synopsis of Written Argument made by Dr. Bera it is categorically stated that whilst her treatment was going on in the second week of April, 2007 the patient had a slight fever and therefore she was prescribed Calpol (prescription supports it) and she was referred to Dr. A. Ghosh as she was had complained of mild fever. Curious enough Dr. A. Ghosh/The OP No.2 no where it has been stated that patient came to his chamber with running fever and he flatly denied about any complaint of running fever. The prescription issued by Dr. Ghosh also does not reflect about running fever and only reflect as skin rash with mouth ulcers.

The prescription dated 10.04.07 issued by Dr. N.K. Bera does not reflect about the skin rash or mouth ulcers only there is mention of BAD (M) and prescription dated 16.04.07 issued by Dr. Ghosh reflects skin rash with mouth ulcers. If both the two prescriptions dated 10.04.07 and 16.04.07 be scrutinized what is to be true is the prime consideration in the instant case. Dr. Bera is no doubt is a Psychiatric and speciality in the field of Neuro Psychiatry and is an MD and Ph D which is highest Medical Academic degrees. So, it is well known to him about the guidelines of Medical Council of India. When a patient is referred to a Specialist by the attending Physician a case summery of the patient should be given to the specialist who should communicate his opinion in writing to the attending Physician. In the instant case no such case history has been referred to Dr. Ghosh. It is pertinent to mention here that Dr. Bera is a Psychiatric and he started treatment for BAD from September, 2005 to before March, 2007 and all along it was noted the condition of the patient as improved well condition. But only on 05.03.07 a new medicine LAMITOR OD 100 mg was started. Under what circumstances new medicine has been prescribed for has not been reflected in his prescription or in his evidence in chief. LAMITOR OD according to IRD is to be induced with lowest dose of 25 mg.

In this context Dr. Sujit Kumar Das, MBBS, DPM, MD (Psychiatric) disclosed in his evidence that he knows about the composition of LAMITOR OD. The said medicine may be prescribed to a patient suffering from Bi-Polar depression. He also stated that selection of LAMITOR OD depends on the patient’s age particularly whether the patient is adult or child. In case of adult patient the dose starts with 25 to 50 mg per day daily for 4 – 7 days. Gradually it would be increased as because the effects of the medicine take time. It



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may be increased up to 100 – 200 mg per day if there is no side effect of the medicine it may be continued. LAMITOR OD may have side effect but it is a very rare case. So, from his statement it can be ascertained that there is side effect on using the LAMITOR OD even though in a rare case. But it does not mean that LAMITOR OD has no side effect and in a particular case there may be side effect. In the instant case Depakote has been prescribed and it was applied also. Dr. Das in this regard clearly stated that there is no need of lowering the dose of LAMITOR OD where LAMITOR OD and Depakote are used simultaneously. It is further been disclosed by Dr. Das that fever is possible when skin rash is accompanied by S.J.S. So, when the patient concerned was under the treatment of Dr. Bera on 10.04.07 she was referred to Dr. Ghosh while mild fever was started. But curious enough Dr. Bera categorically stated in his evidence on seeing her fever she was referred to Dr. Ghosh for treatment of fever. But it has not been mentioned in his prescription as already reflected. On 16.04.07 Dr. Ghosh noted in his prescription about the condition of the patient as history with mouth ulcer and skin rash. But no where it has been written about the fever as opined by Dr. Bera. Dr. Bera in this regard stated in her testimony No.10 that the patient came to him for her mental problem but not due to skin problem. From his evidence it is crystal like clear that on the last date of consultation dated 10.04.07 skin problem was noticed by him for which such type of statement comes from the mouth of Dr. Bera. Accordingly, the patient was referred to Dr. Ghosh, the General Physician for the purpose of treatment of skin rash with fever. In case of aggravated condition towards the suffering of BAD obviously the patient would be referred to Specialist Doctor of Psychiatric not to the General Doctor. Despite notice of skin rash and fever it has not been reflected in the prescription dated 10.04.07 it is not proper for the senior doctor like Dr. Bera and inconformity with the guidelines as made by Medical Council of India.

Under these circumstances, conclusion can be drawn that after application of LAMITOR OD such type of problem of the patient has been started. When there was fever coupled with skin rash as per evidence of Dr. Sujit Kumar Das it can be gathered possibility of S.J.S. due to drug induced by application of LAMITOR OD with high dose of Depakote of 500 mg can not be ignored or wipped out.

Let us now consider the defence case of OP No.2/Dr. Aniruddha Ghosh. The specific evidence of Dr. Ghosh is that the patient concerned came to his chamber on 16.04.07 with mild to moderate symptoms of skin rash and mouth ulcers and gave a previous history of taking anti-depressions under the guidelines of Dr. N.K. Bera. According to him the patient party or the patient did not disclose about the suffering of



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fever whereas the defence case of Dr. Bera is that on account of sudden fever she was referred to Dr. A. Ghosh. So, which version is true is to be considered in the instant case. On physical examination Dr. Ghosh prescribed several medicines for anti-allergic, adjuvant therapy with anti-allergic to treat the skin rashes and mouth ulcers to prevent gastric irritation and also to prevent super infection of the mouth ulcers. No iota of evidence from the end of Dr. Bera that the patient was suffering from mouth ulcers or skin rash. But on 16.04.07 the patient came with such varieties of diseases as specifically stated by Dr. Ghosh who accordingly prescribed MEDROL which is a steroid one as already reflected above about the nature of medicine which comes within the group of Methyl prednosolone and that medicine is used for severe allergic conditions. So, it seems to us that on seeing the physical condition of patient concerned the said drug has been prescribed for being satisfied about the severe allergic conditions. But no where in his prescription it has been disclosed that the said medicine is a steroid group and it has been disclosed to the patient party about the nature of medicine intended to be applied for to save the patient concerned for her survival as well as for recovery from her critical condition. This silence kept dark to the patient party and without disclosing at the left corner of the prescription is beyond the guidelines as framed by Medical Council. Thereby Dr. Ghosh violates the normal guidelines of Medical Council.

On careful consideration of nature of medicine as applied for it is crystal like clear that Dr. Ghosh realized the nature of disease and also realized thecritical condition of the patient concerned for which to achieve a miracle result such type of steroid was prescribed for though it is normal range as per literature of Methyl prednisolone in terms of side effect of Health Square.com. Even then when the patient was found in critical condition and already consumed LAMITOR OD with Depakote high doses is it suitable for her body was also to be considered by the said Dr. A. Ghosh. Body capacity to consume the drug like steroid is also to be weighed by the doctor concerned. Further we like to say that Dr. Ghosh is a General Physician and the patient came from the end of Psychiatric prescribing heavy doses and consumed the same and being a General Physician when the patient came with a critical condition should have second thought before applying steroid like MEDROL and without consultation with Dr. Bera, Dr. Ghosh abruptly changed all the medicines as prescribed by Dr. Bera. It is also not proper.

Dr. Debangshu Sarkar, MBBS, MD, Medicine categorically stated any kind of drug may be responsible for the reaction. Rash, vesicles are the symptoms of S.J.S. Any Medical Practitioner suspects from the rash of the patient that he is suffering from said syndrome i.e. S.J.S. he may refer the patient to a Specialist. The said Dr. Sarkar further



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stated in his evidence that Lamotrigine and Sodium Valproate are used by Neurologist and Psychiatric. Psychiatric used the medicine in Bi-polar Disorders. It has been further stated in case of use of said two medicines if used simultaneously the doses of Lamotrigine is required to be reduced in case of any adverse reaction. But Dr. Bera in this regard ignored to withdraw the medicine like Lamotrigine (LAMITOR OD) and or reduces the quantum of the said drug. In the instant case categorically stated no such complaint was made by the patient or by the patient party about the nature of problem as contended by the complainant in his case. But the complainant in the instant case though did not lead any evidence narrated the case supported by evidence and subsequent conduct of Dr. Bera whilst Dr. Bera referred the patient to a General Physician, the Dr. Ghosh it can be deduced that Dr. Bera was quite aware about the nature of feeling and problems faced by the patient concerned without referring to specialist in that line he only referred the patient to a General Physician and categorically stated that the patient did not come before him for skin rash. Such conduct of Dr. Bera is not proper as already reflected hereinbefore. From the conduct of Dr. Ghosh it is clear that on seeing the critical condition of the patient concerned he used MEDROL, the steroid without consultation with the specialist doctor in that line. In cross examination as made by the OP No.2 i.e. from the end of Dr. Ghosh Dr. Debangshu Sarkar although stated that the medicines prescribed in the said prescription may be used in case of mouth ulcer and skin rash and such doses appears to be correct. But from the nature of evidence as led by Dr. Sarkar it is crystal like clear that he was not so sure about the disease as suffered by the patient. If the said doctor be sure the nature of evidence would be otherwise than that of the evidence as led by him by way of cross examination. It indicates that Dr. Sarkar tries to give shelter to Dr. Ghosh any how on fellow feelings.

Dr. Sashwati Halder, MD in Dermatology clearly stated that skin rash is a vague term and skin rashes are of various kinds and without examining the patient it is not possible for her to say whether prescription of steroid is necessary. She gave such answer while she was asked for necessary of steroid in a case with a patient comes with skin rash. So, such evidence of necessity of steroid or not is no help in the instant case. The doctor concerned was examined at length with regard to diseases of SJS and TEN which will be considered in discussion with the defence case of other doctors/OPNo.3 – 5. But in course of cross examination it has categorically stated by her in that Idiosyncratic reaction may be caused from any allergic reaction namely drug, food, dust, pole grains etc. and prescription issued by Dr. Ghosh it has been presumed about the drug allergic for which MEDROL was prescribed for.



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Considering all the circumstances and the nature of drug as used by a General Physician/the OP No.2 and changing the medicines abruptly as prescribed by Dr. Bera we are of the view that such application of steroid like MEDROL is not proper and by such application of steroid the physical condition of the patient concerned became deteriorated can not also be ruled out.

Let us now consider the case of the OP No.3 – 5 whose evidence in this regard that the patient concerned came with the disease of Steven Johnson Syndrome and Toxic Epidermal Necrolysis which is hereinafter referred to as SJS and TEN respectively. Their further evidence is that the patient concerned was finally declared as a patient of TEN. According to them treatment was made keeping her CCU on seeing the physical condition of the patient who came with in critical condition. Accordingly life support coupled with transfusion of blood for two units were undertaken. Even then the patient concerned was immediately attacked with massive heart attack followed by death despite taking best effort to treat the patient.

In this context we like to point it out that no scrap of paper has been furnished by the OPs No.3 – 5 to substantiate their defence that proper care and treatment were under taken to a patient like SJS and TEN. It is true a copy of treatment history has been furnished by the complainant but it is not sufficient to ascertain as to what type of treatment was undertaken to the patient concerned while she came with in critical condition with Bulla formation holding her as a patient of SJS and TEN.

SJS is called Erythema Multiforme Major and is a rare serious disorder of the skin and mucous membranes. Often SJS begins with several days of flue like systems, followed by inflammation of mucous membranes and a painful read or purplish rash that spread and blisters eventually causing the top lair of skin to die and shade. Usually it is a specific type of allergic reaction in response to medication or infection. It requires hospitalization. Drugs commonly associated with SJS include non steroidal anti-inflammatory drugs, Suflonamides and Penicillins which are used to treat infection and anti-convulsions which are used to fight seizures. In the instant case the patient concerned initially suffered from mental depression and the medicines as used are practically for anti-convulsions. So, in a case of patient like SJS immediate medical attention is required when there was signs of or symptoms with skin pain, blisters on the skin mucous membranes and tongue swelling. Several types of complications will arise by attacked of SJS those are secondary skin infection, species, Eye problems, damaged to internal organs and permanent skin damage. It is evident from the prescription issued by Dr. Ghosh/the OP No.2 that the patient came with skin rash with mouth ulcer. The



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treatment has been followed to keep the patient in an Intensive Care Unit or burn unit. The first step in treating SJS is to discontinue any medication that may be causing it because it is difficult to determine exactly which drug may be causing the problem. So, it is required to reduce discomfort by application of pain medication, antibiotics to control infection because skin loss can result in significant loss of fluid from the body. Replacing fluids is an important part of treatment.

In a case of attacked by TEN it has been viewed in Dermatology in General Medicine (Fitz Patrick’s) 5th Edition and comprehensive Dermatological Drug Therapy view of which has been taken from the decision reported in 2009 CTJ 1065 Supreme Court (CP) in the case of Malay Kumar Ganguly Vs Dr. Sukumar Mikherjee & others and Dr. Kunal Saha Vs Dr. Sukumar Mukherjee & others at Page 1082 wherein it has been led down that TEN is also known as lyell’s syndrome Epidermalysic Acuta Toxica and scalded skin syndrome. TEN begins with a non-specific prodome of 1 – 14 days in at least half of the patient. It is a severe an extensive variant of Erythemato bullous drug irruption. In TEN the patient is ill with high fever occasionally suffers somnolence and lassitude because all the extensive area of eroded skin large amount of body fluids is lost with consequence disturbances of electrolyte and fluid balance and comprehensive dermatological drug therapy.

Here in the instant case save and except copy of the history sheet as filed by the complainant no other medical papers have been furnished by the OPs No. 3 – 5 to substantiate that the nature of treatment as opined and required for treatment of TEN has been properly undertaken. Mere oral assertion is not sufficient to hold that proper treatment as required for a patient of SJS and TEN has been undertaken. It requires to be proved by oral as well as cogent documentary evidence.

Here all those doctors 3 – 5 led evidence that proper treatment was undertaken according to requirements and all of them tried to avoid their liability by taking the alleged flaw on the part of the complainant concerned. but under the law none can be allowed to escape taking advantage of any flaw on the part of the either party when all of them came before the Forum leading evidence through themselves or through other witnesses and when there is serious allegation of medical negligence on the part of the OPs, well known doctors of this locality, it is not appreciable without placing proper documents have urged about the alleged flaw and to save their skin in the manner as taken by the OPs No. 3 – 5. Rather the complainant tries his best to prove his case to call for experts’ opinion leading evidence through Dr. Sashwati Halder, Dr. Sujit Kumar Das and Dr. Debangshu Sarkar who are doctors in the line as sustained by the patient concerned as opined by the OPs No.3 to 5.

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Therefore, considering all the facts and circumstances, we are of the view that the OPsNo.3 -5 suppressed the material facts as to the nature of treatment undertaken to the patient concerned by non-producing materials obviously maintained by them in their Nursing Home and if all those documents be produced to substantiate their defence the Forum can determine and/or ascertain the nature of treatment as undertaken to the patient concerned by the OPs No.3 -5.

This suppression of material facts coupled with documentary evidence creates doubt to the mind of the Forum that whether proper treatment was actually undertaken to the patient concerned who evidently came with high fever and with Bulla formation declaring at the initial stage as a patient of SJS and finally determined as a patient of TEN and when such doubt has been created on the mind of the Forum adverse inference can be drawn against them that no proper treatment as required in a case of patient like SJS and TEN has been undertaken. So, the OPs No.3 – 5 can not avoid their liability as well as obligation upon the patient concerned.

In the instant case more argument has been urged by the Ld. Advocates of the OPs No.1 to 5. But they have not come forward to lead any evidence through any expert in the line the diseases as suffered by the patient concerned or the treatment as made by the OPs No.1 to 2 or the Nursing Home through the OPs No. 3 & 4 to disprove the case of the complainant about medical negligence as alleged.

It has already been reflected above that no such expert’s opinion in terms of the mandate of the Apex Court in the case of D. Suja reported in 2009 AAIR SCW 1807 = 2009 CTJ 352 (SC) (CP) was sought for. Although the instant case relates with the case of 2007 and the effect of the judgment of the Hon’ble Supreme Court long after the instant case. But considering the gravity of the instant case necessity of expert’s opinion was considered as per prayer of the complainant vide order No. 6, dated 02.01.2008 for which three doctors were examined in the line of the treatment made by the OPs No. 1 to 5 upon the patient concerned and the OPs did not thought to examine any other doctor to be considered as expert to disprove the case of the complainant substantiating their specific defence or challenged that purpose of request of expert’s evidence will not be served even if all those three doctors be examined.

Section 45 of the Indian Evidence Act lays down that when the court has to form an opinion upon a point of foreign Law on of Science or Art or as to identity of hand writing or finger impressions, the opinions upon that point of persons specially skilled in such foreign Law, Science or art or in questions as to identity of handwriting or finger impressions are relevant facts. Such persons are called experts.



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In the instant case it has already been reflected that three doctors were called as experts. They are Dr. Sashwati Halder, Dr. Debangshu Sarkar and Dr. Sujit Kumar Das. All of them are M.D. having possession of highest degrees in their lines.

According to Dr. Sarkar that SJS and TEN and Erythema Multiforme Major are related to skin. So, patients are referred to Dermatologist for treatment.

SJS is a kind of disease which may be drug induced and it is not confined to skin only but also involves Mucus Membrance Blister forms in case of severity.

When this syndrome is seen from anti-convulsion drug the best person to give answer about effect of the drug may be given by neurologist who prescribed the drugs. Dermatologist is the best person to give answer.

In the instant case Dr. Bera who actually prescribed for LAMITOR OD 100 mg has not explained any where as to what compels him to prescribe LAMITOR OD with DEPACOTE 500. Both the drugs applied for with high doses and what was the physical condition of the patient then for which two high doses were applied for when other prescriptions reflect for well done or improved as quoted therein. Rather he remained silent and shifted his burden by referring the patient to a general Physician Dr. A. Ghosh on the plea of mile fever but did not care for referring the patient to a Dermatologist despite having skin rashes/as complained of breathing trouble. So, the conduct of Dr. Bera is nothing but avoiding tendency despite knowledge of severeness he did not care for reducing the drug LAMITOR OD or withdrawing the same.

Dr. A. Ghosh, the OP No.2 despite seeing the physical condition of the patient concerned advised the for MEDROL, the steroid without detecting the body capacity to consume it or having immune to accept it and such effect becomes aggravated and when the patient was taken to Nursing Home she was primarily diagnosed SJS and finally a patient of TEN.

So, on careful consideration of the evidence as led by the OP No.1 and 2 it is evident that there was consultation in between the OP No.1 and 2 about the condition of the patient for which she was prescribed for Steroid without making any investigation about he body capacity to intake such drug. This conduct speaks that he has sheltered Dr. Bera about the effect of drug induced by application of LAMITOR OD 100 mg and to achieve miracle result and only to save his skin it has been stated that the patient did not say about suffering from fever. As soon as any patient came with such disease like skin rash and mouth ulcer and pulse rate is counting, temperature is running or not can easily be detected to a doctor for which no need of an expert but it has been avoided by the concerned Dr. A. Ghosh by making such statement. This is not proper for a medical



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practitioner and violated all norms as per guidelines of Indian Medical Council. Without referring to a Dermatologist or any specialist doctor steroid was applied for.

Medical Sciences is a difficult one. The Count for the purpose of arriving at a decision on the basis of the opinions of experts must take into account the difference between an expert witness and an ordinary witness. The opinion must be based on a person having special skill or knowledge in medical science.

Whether such evidence could be admitted or how much weight should be given thereto, lies within the domain of the count. The evidence of an expert should, however, be interpreted like any other evidence.

Here in the instant case it has already been stated three doctors was examined as experts in Medicine, Dermatologist and Psychiatric.

So, their testimonies along with the testimonies as led by the OPs No.1 to 5 with the case of the complainant supported by affidavit it is to be considered as to whether there was any negligence on the part of the OPs as alleged and/or it is nothing but error or wilful negligent on their part in consideration with the relevant decisions as made by the parties to the case.

The Ld. Advocates of the OPs relied the Bolam’s Theory, Jacob Mather’s case and Martin F. D. Souja’s case and it is also argued that the negligent can not be considered on the basis of presumption but it is to be established by proof.

In Bolam’s case it has been held that “where you get a situation which involves the use of some special skill on competence, then she test as to whether their has been negligence or not is not the test of the man on the top of a clapham Omnibus, because he has got this special skill”.

The test is the standard of the ordinary skilled man exercising and profession to have the special skill. A man need not possess the highest expert skill. It is well established law that it is a sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art”. That principles have been approved in Jacob Mathew’s case. It has been laid down :-

1) Mere deviation from normal professional practice is not necessarily evidence of negligence.

2) Mere accident is not evidence of negligence.

3) An error of judgment on the part of a professional is not negligence perse.

4) Simply because a patient has not favourably responded to a treatment given by a Physician or Surgery has failed, the doctor can not be held liable perse by applying the doctrine of res ipsa liquitor.

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In Martin F.D. Suza’s case it has been held that a Surgeon with shaky hands under fear of legal action can not perform as successful operation and a quivery Physician can not administered the end dose of medicine to his patient. So, if all those decisions be scrutinized it is crystal like clear that best effort is to be made for the interest of the patient for his/her survival and in this regard the doctors against whom medical negligence has been alleged has to come with clean hand and to furnish all the documents to support last dose or excess dose was applied for in order to achieve its goal i.e. for driving survival of the patient concerned. but in the instant case such evidence not only on the part of the OP No.1 or OP o.2 but also on the part of the OPs No.3 to 5 are lacking.

Where negligence has been alleged under the law Negligence is the breach of a duty caused by the omission to do something which a reasonable man, guided by those consideration which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do.

Negligence means either subjectively a careless state of mind or objectively careless conduct. It is not an absolute term but is a relative one is rather a comparative term.

So, all the surrounding facts and circumstances are to be considered.

In the instant case all the expert doctors in their evidence categorically stated that the drug LAMITOR OD is required to be withdrawn or it should be applied for with lowest range as supported by the literature HealthSquare.com and it would be increased gradually. But in the instant case it has already been reflected that the said Dr. Bera did not care for reducing the dose of LAMITOR OD with Depakote 500 mg in spite of seeing the patient suffering from fever or complaint of breathing problem. Such conduct of Dr. Bera clearly violates the norms of guidelines as issued by Medical Council of India and such act clearly comes within the purview of medical negligence and that can not be considered as error for selection of the drug to recover the patient concerned. At the same time Dr. Ghosh also violates the medical guidelines by applying steroid without making investigation about the body capacity to intake it. So, this conduct also can not be considered as error rather it is within the ambit of medical negligence.

The OPs No.3 to 5 clearly state in their evidence coupled with W.Vs that the patient concerned came with them in a critical condition with skin rash, Bulla Formation, severe fever and mouth ulcer and on seeing her condition it has been diagnosed as SJS primarily and finally diagnosed as TEN. But in support of their defence they have not come forward to produce the medical papers for appraisal that actually the patient was



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treated with high care in the patient of SJS and TEN and kept her in burn unit which requires and prescribes by the Medical Journals in a case of SJS or TEN.

Assuming for argument sake that keeping in a CCU the patient was treated properly and all best efforts were taken on their behalf. Even then necessity of burn unit will solve by keeping the patient in a CCU and taking such treatment as required for has also been applied for it needs to be proved by cogent documentary evidence. In absence of supported document the same can not be considered as taking best efforts for survival to the patient suffering from SJS and TEN which admittedly is the result of drug induced. Suppression of material facts the Forum can draw inference adversely against the OPs No.3 to 5.

Under this facts and circumstances, we have no hesitation to hold that all the OPs No.3 – 5 are also negligent on their part to take best efforts or to make proper treatment to the patient like SJS and TEN.

The complainant is a wretched father who lost his teen aged daughter of 19 years a student of 2nd year in technical category. He has much hope for his daughter for her future prospect as well as for his life support.

Child is necessary to a parent for their mental satisfaction coupled with future purpose. But in the instant case the patient was originally a mental patient and came before the OP No.1/Dr. Bera for her treatment which continued up to two years under his care and control and during that period no such problem was faced by the complainant with regard to his daughter and on routine check up the patient came for continuance of her treatment to the OP No.1/Dr. Bera who despite notice of improve, doing well chose a drug like LAMITOR OD 100 mg and such problems according to the complainant started by application of the said drug. But Dr. Bera did not care for the problem as reported to him even it has not been mentioned in his prescription and continued the said drug which was followed by the patient party and such application creates a trouble resultant with severeness in another disease not with the original one and the same became aggravated by applying steroid like MEDROL by the OP No.2. All the experts concerned categorically stated that in a rare case LAMITOR OD has side effect and the Neurologist can apply it in a case of Bi-Polar Affective Disorder (BAD) but it has not been properly proved by OP No.1 that the said medicine was sheer necessity for her improvement. But the result was otherwise as come out from the mouth of Dr. A. Ghosh/the OP No.2 who then and there changed the entire medicines and applied for steroid like MEDROL. Such application has not been made on proper investigation. This also not proper as reflected above and all those circumstances leads the Forum come to



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its conclusion that by virtue of negligence the physical condition of the patient concerned was deteriorated and resultant with she became seriously ill by drug induced and became a patient of SJS and TEN as detected by the OP No.3 & 4. But they have also not come forward for appraisal that effective measure was taken for her recovery.

Under these facts and circumstances, all the OPs are also negligent in performing their duties.

The prime object of medical profession is to render service to humanity with full respect for the dignity of the profession and man. The Physician should be an upright man instructed in the art of healings. He shall keep himself pure in character and be diligent in caring the sick. Physician should try continuously to improve medical knowledge and skills and should make available to their patients and colleagues the benefits of their professional attainments. He should insure himself that the patient, his relatives or his responsible friends have such knowledge of the patient’s condition as will serve the best interest of the patient and the family. But in the case it has already been held that none of the Doctor’s party to the instant case appraised the patient’s party or the complainant about the physical condition of the patient and the nature of disease sustained by the patient concerned. All those inaction on the part of the doctors concerned clearly comes within the purview of violation of guidelines as observed by Medical Council of India.

Further considering all the pros and cron surroundings circumstances coupled with the materials on record we are compelled to hold that all the Doctors/the OPs No.1 to 4 and the Nursing Home/the OP No.5 are found negligent in discharge their respective duties and also we are of the view that all the doctors coupled with the Nursing Home are deficient in discharging their respective part and thereby when there is deficiency in service transpires and proved by cogent evidence oral and documentary evidence the case of the complainant is sustainable.

It is true the loss can not be measured only byway of awarding compensation even then when all of them committed wrong, breach of trust to perform their respective duties and to compensate the loss suffered by the complainant due to immature death of his daughter compensation is required to be passed for the death of Upasana Subba, the patient due to their respective professional carelessness and negligence and towards the cost of treatment of the said patient.

The complainant has not furnished details of the cost as incurred towards the treatment in the Nursing Home save and except a Xerox copy of deposit receipt dated 23.04.03 for Rs.5,000/- and Rs.1,000/- towards the cost of blood of two units. So, this



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amount of Rs.6,000/- is to be realized from the OP No.5/the Nursing Home in addition to the award as mentioned hereinbefore.

Considering all the facts and circumstances, in the light of our reasoning as made hereinbefore it is fit and proper to award a sum of Rs.3,00,000/- (Three Lakes rupees only) against the OP No.1; Rs.1,00,000/- (One Lake rupees only) against the OP No.2; Rs.50,000/- (Fifty Thousand rupees only) each against the OPs No.3 to 5 towards the compensation for their respective professional carelessness and negligence.

Thus, all the issues are disposed of accordingly.

In the result, the case succeeds in part.

Hence, it is,

O R D E R E D

that the Consumer Case No.89/S/2007 is allowed on contest in part against all the OPs No.1 to 5 with cost of Rs.1,000/- each.

The complainant is hereby entitled to get an award of Rs.5,50,000/- (Five Lakes Fifty Thousand rupees only) towards compensation from the OPs No.1 to 5 as categorically mentioned hereinbefore.

In addition the complainant is further entitled to get a sum of Rs.6,000/- (Six thousand rupees only) towards Nursing Home charges and two units blood transfusion from the OP No.5/the Nursing Home.

OPs No.1 to 5 are directed to pay the awarded sum as imposed against the each of the OPs as stated above within 45 days from the date hereof failing which the complainant is at liberty to put the decree in execution and the said amount will carry interest @ 9% per annum from the date of institution of the instant case i.e. 12/10/2007.

Let Xerox copies of this Judgement and Order be supplied to the parties free of cost.

son is veryestless.so i want to meet with a good psychologist. plez give a detail about doctors and time.