C.C. No. 14 /2008


Between


P. Durga Prasad, S/o P. Layapathi,
Aged 21 years, Engineering Student,
Hindu, residing at Dr.No. 19-287,
Red Cross Street Extension, Mittoor,
Chittoor Town & District.
… Complainant.

And

Dr. D.Rajendra Kumar, M.S. Surgeon,
S/o name not known, Preetham Hospital,
No. 11-457, near Gurunadha Theatre,
O.T.K.Road, Chittoor.

… Opposite Party.

This complaint coming on before us for final hearing on 23.03.2009 and upon perusing the complaint, written versions, affidavits, material documents and on hearing Sri K. Ashok Reddy, counsel for the complainant, and Sri P.Pattabhi Ramaswamy Reddy counsel for opposite party and having stood over till this day for consideration, the Forum made the following:-

ORDER

DELIVERED BY SRI. V. PARTHASARADHI RAO, B.A., L.L.B., President
ON BEHALF OF THE BENCH



This is a complaint filed by the complainant U/Sec. 12 of Consumer Protection Act against the opposite party for recovery of an amount of Rs. 50,000/- towards medical expenses and Rs. 5,00,000/- towards compensation for mental agony and physical strain.


The complainant submits that he is an Engineering Student studying at Srinivasa Engineering College, Chittoor. On 05.03.2007 he consulted the opposite party for a general pain in his left leg. The opposite party referred him to X-Ray of his Hospital and after studying the X-Ray report and on physical examination prescribed the medication. Even after using the medication as per advice of the opposite party, as there was no improvement in his left leg pain, he again consulted the opposite party 2nd time on 12.03.2007. On that day the opposite party changed a few of the medicines in the prescription and advised him to follow the same treatment. But there was no improvement in his left leg pain, on 17.03.2007 he again consulted the opposite party. At that time the opposite party changed, the entire previous prescription and recommended six medicines to use for 4 days. After completion two days treatment out of 4 days, the problems of the complainant became severe and he was unable to move here and there. Further generalized body rash and swelling with development of pastules on the left leg was formed. Immediately he consulted the opposite party 4th time on 19.03.2007 morning. The opposite party asked the complainant to get a scanning report from M/s Sapthagiri Scan Centre, Tirupathi, he went to Tirupathi and obtained Scanning Report i.e “Colour Doppler Study” and gave the report to the opposite party on 19.03.2007 on the same day. The opposite party again changed medication and prescribed medicines on 19.03.2007. Within 2 days the problem became more severe, erythema over both legs and pastules as well as generalized body rash associated with severe itching developed. Immediately the complainant consulted the opposite party. The opposite party expressed his inability to treat further. Then the complainant got admitted in C.M.C, Hospital, Vellore on 21.03.2007 itself as inpatient and took treatment for a week. He was discharged from C.M.C.Hospital on 28.03.2007 as the problem was recovered to tolerable level.

The complainant submits that the C.M.C Hospital, Vellore at the time of his admission into the Hospital diagnosed as “Drug Induced Atypical Erythema Multiforme” with secondary infection of right leg. The complainant spent Rs.9,010/-, in addition to his other expenditure of Rs. 20,000/- in C.M.C Hospital, Vellore. After discharge from the Hospital, he took treatment from C.M.C Hospital for two more weeks as out patient. The problem was not completely terminated; the entire skin on the leg became dark in colour requiring future treatment.

The complainant submits that as the intensive treatment was prolonged more than 6 weeks period, because of purely negligent and deficiency of medical services provided by the opposite party. On account of this he suffered 2% of shortage of attendance at his college studies and he could not attend internal examinations conducted by the J.N.T.U on the subject of JAVA on 07.04.2007. The opposite party did not properly diagnose a simple general leg pain and did not give proper treatment. He prescribed medicines without conducting the drug sensitivity tests and this negligent and careless act of the opposite party shall amount to deficiency of medical services. The complainant suffered both mentally, physically and economically. Hence the complainant claims Rs. 5,00,000/- as damages excluding the expenses for the treatment. The complaint may be allowed.

The opposite party filed written version alleging that the complainant is his friend. On 05.03.2007 he came to the Hospital of the opposite party with a complaint of simple left leg pain. He prescribed drugs for 5 days. The complainant came on 12.03.2007 and complained leg pain on the left leg. X-Ray of left leg was taken and no bony lesion was seen and he prescribed medicines.

The opposite party submits that on 17.03.2007 the complainant again came to him with the same complaint, then the opposite party suspected vascular pathology disease related to blood vessels of leg and advised Dopplar test of lower limb and prescribed medicines.

The opposite party submits that on 19.03.2007 the complainant came with the result of Doppler test. It revealed that in both anterior tibial and posterior tibial arterises, there was normal flow of blood. Further it shows that in both subcutaneous soft tissue Edema of left leg and ankle. The opposite party prescribed the medicines Novamox, which is an antibiotic Sadase-D which reduces pain and Edima. It is not known whether the complainant has used the drugs prescribed by the opposite party. Subsequently the complainant did not turn up. On 30.04.2007 the opposite party came to know that the complainant had gone to C.M.C Hospital, Vellore for treatment on 21.03.2007 and the discharge summary sheet issued by that Hospital reads that the ailment of the complainant was diagnosed as “Drug Induced Atypical Erythema Multiforme with Secondary infection of Right leg”.

The opposite party submits that the complainant had taken some medicines from a Doctor outside for pain in the legs, after which he developed Erythema. This shows that at the time, the complainant had taken treatment from a Doctor in pain in the course, after which he developed Erythema and body rash. He submits that the complainant never named the opposite party as a Doctor from whom he took treatment and on the other hand he stated that he had taken some medicine from a doctor outside for pain in the legs, after which he developed Erythema.

The opposite party submits that the complainant might have consulted another Doctor for pain in his legs and medication prescribed by him might have resulted in development of Erythema and body rash. The allegation that the opposite party has not given proper prescription is absolutely false. The line of treatment adopted by the opposite party is correct and he treated the patient in due care. The drugs prescribed by the opposite party for the treatment of the complainant will not induce Atypical Erythema Multiforme. The complainant has not produced any evidence at least the expert evidence to show that the drugs prescribed by the opposite party have induced Atypical Erythema Multiforme. The opposite party is filing affidavits of Dr. P.V.Ramasubba Reddy, Dr.K.Narasaram, Dr.V.Sunanda Kumar Reddy and Dr.SaiKumar as expert evidence.

The opposite party submits that after getting Degree of Bachelor of Medicine and Surgery in 1988 from S.V. University, he did Post Graduation, he worked Civil Assistant Surgeon, Senior Civil Surgeon specialist. He is qualified both in surgery and general medicine. There is no deficiency on his part, he is not responsible for alleged sufferance of the complainant. The complainant is not a consumer, as he never availed services from the opposite party for consideration. Hence the complaint may be dismissed.

The complainant filed rejoinder stating that the complainant is not a friend of opposite party and there was no friendship between him and opposite party at any time. The opposite party is a specialist in General Surgery, but not in general medicine. The opposite party ought to have referred the complainant to a better expert doctor, specialist in general medicines when the problem was not a surgery. When he failed to diagnose the problem properly on 17.03.2007, the opposite party suspected the complainant’s problem was vascular pathology and given treatment for him. When the treatment was not given result, the problem was further aggravated. Then the opposite party recommended the complainant to get Doppler Test Report. On 19.03.2007 when the report of Doppler Test of scan centre was clear to suspect the diagnoses as wrong, the opposite party ought to have referred the complainant to the expert in general medicine. Instead he continued the treatment and changed the medication without doing any test. Due to improper medication prescribed by the opposite party from time to time and due to reaction of the medicines prescribed by him, the complainant developed secondary infection to his right leg importantly in other parts of the body and primarily of his left leg. The C.M.C Hospital, Vellore doctors concerned would write in the history column as “doctor outside” as a member of moral ethics only. But the complainant is under continuous treatment with the opposite party only. Inspite of complainant under regular consultation and treatment of the opposite party from 05.03.2007 to 21.03.2007, the opposite party had not diagnosed the problem of the complainant, but has given prescription and treatment on the basis of trial and arrears basis. The filing of Affidavits and testimonials of different doctors by the opposite party are not relevant to the present problem, because none of them have seen the complainant at any time during the course of treatment. The complaint may be allowed.

On the basis of averments, the following points arise for consideration :
1) Whether the opposite party is negligent in treating the complainant from 05.03.2007 to 29.03.2007 ?

2) Whether the alleged improper medication prescribed by the opposite party from time to time caused reaction to the complainant, which developed secondary infection to his right leg and other parts of body in addition to primary infection of his left leg ?

3) Whether the opposite party committed deficiency in service ?

4) Whether the complainant is entitled to claim medical expenses of Rs.50,000/- and also compensation of Rs. 5,00,000/- for mental agony, vehicle strain and economic loss ?

5) To what relief ?


The complainant filed Chief Affidavit of PW-1 and examined PW-2 and marked Ex.A1 to A18. The Opposite party filed Chief Affidavit of RWs-1 to 5 and marked Ex.B1 to B10.
Point No. 1 :-
The learned counsel for the opposite party contends that a party who hires or avails of any service for consideration U/Sec. 2(1)(d)(II) of C.P.Act, which has been paid or promised to pay will be a consumer.

The learned counsel for the opposite party contends that in the notice dt. 30.04.2007 the complainant did not say that he availed service from opposite party for consideration. Even in the rejoinder dt. 08.07.2007, the complainant had not stated any payment alleged to have been made to opposite party, either for treatment or for consideration. Therefore the complainant is not a consumer.

The learned counsel for the complainant contends that the complainant is not a friend of the opposite party. The opposite party invented a story of friendship as an after thought to come out of the liability of his negligent medical services on hook or crook basis. He submits that the opposite party has not mentioned the same friendship story in reply notice dt. 25.05.2007. He submits that every time whenever complainant consulted the opposite party for his problem he paid Rs. 50/- per time to the opposite party towards consultation fee.

The opposite party has not proved that the complainant is his friend when the complainant gave notice to the opposite party complaining negligence and claiming damages. The opposite party has not stated in the reply notice that he treated the complainant without consideration and he extended free services to him. It can not be also presumed that the opposite party who is a private doctor maintaining Hospital is rendering free services to the patients.

RW-1 stated that he was treating 40 to 50 patients a day. He is rendering free services to them all. A private doctor will never give free treatment to any one. Therefore the defence taken by the opposite party is only to avoid answering allegations leveled against him. The complainant stated that he paid Rs. 50/- every time. There is no necessity for him to speak lie against the opposite party. Therefore the opposite party gave treatment for consideration and the complainant is a consumer.

The learned counsel for the opposite party contends that there is no pleading that the complainant paid Rs.50/- every time whenever he consulted the opposite party. When there is no plea there will not be any evidence. In this regard he relied on the decision reported in 3(1993)(I) – CPR – Page 574 – Solanki Bharthuji Fataji Vs National Insurance Co., Ltd., - wherein their lordships held that
It may be borne in mind that the pleadings are not evidence. Pleadings are the respective cases or the parties from each issues are to be framed and the controversy is required to be decided by the commission or Forum.

The facts of the above case are not applicable to the facts of the present case.

The learned counsel for the opposite party submits that mere allegation is not proof when there is no evidence adduced in support of payment of fee. The complaint is not maintainable. In this regard he relied on the decision reported in 2007 – CPJ – Page 249 – (N.C.) BITONI Vs SATYA NARAIN CHAUHAN (DR) & ANR – where in their lordships held that
…. District Police Hospital, Mandsaur is a Government Hospital where treatment is rendered free of charge. Petitioner had not adduced any evidence in support of the having paid fee to respondent No.1. Having heard Ms. Reeta Mishra, Amicus Curiae for petitioner we do not find any illegality or jurisdictional error in the order of State Commission exonerating both the respondent doctors for medical negligence on the said grounds. Revision petition is dismissed.

The facts of the above case are not applicable to the facts of the present case. In the above case the petitioner took treatment in Government Hospital, which renders free service. In this case the petitioner is treated by a private doctor. The burden is upon the private doctor, who is rendering free service to his patients, it is not upon the petitioner, who says that he paid Rs. 50/- every time whenever he consulted the doctor and mentioned those payments in the statement of particulars of expenditure. The learned counsel for opposite party relied on the decision reported in II(2008) – CPJ – 411 –at Page No. 416 in Mamtha Sridhar Iyer & another Vs Kunjannam Poulose (DR) & Another where in their lordships held as follows that :
…..But since complainant No.1 had earlier come for delivery at O.P.No.1’s nursing home, out of compassion without taking any single rupee from the complainant Nos. 1 and 2, to save the life of patient in view of commencement of spontaneous and threatened loss of pregnancy, O.P.No.1 admitted her at her request in her nursing home free of charge and she was given requisite and necessary rest and medicine.

…… Thus this Commission holds that complainant No.1 had been treated by O.P.No1 doctor free of cost out of previous acquaintance and just to give immediate help to the patient and without payment of frees whatsoever or even without promise to pay fees at the later stage and therefore such persons cannot file consumer complaint against O.P.No.1 alleging deficiency in service or medical negligence on her part. We therefore record our finding on issue No.2 in the negative.

The facts of the above case are not applicable to the present case. The complainant stated that at the time of filing complaint, when the office raised an objection that he paid Rs. 50/- at the earliest point of time, even before the opposite party filed Written Version. Further the complainant showed the payment of fees in his expenditure statement Ex.A12 dt. 24.01.2008. Therefore the complainant paid fee and obtained services from the opposite party. Further the opposite party has not also stated in his reply notice that he rendered free service. Hence he is a consumer.
This point is answered accordingly.

Points 2 to 4 :-
The learned counsel for the complainant contends that the complainant approached the opposite party with a pain in his left leg. But in the discharge summary of C.M.C.Hospital, Vellore the diagnosis was mentioned as “Drug Induced Atypical Erythema Multiforme” “with secondary infection of Right leg”. The problem of the complainant at first was pain in his left leg, but due to improper medication prescribed by the opposite party from time to time and due to reaction of the medicines prescribed by the opposite party, the complainant had developed secondary infection to his right leg and postules, body rash and itching on the other body parts in addition to primary infection of his left leg.

The learned counsel for the complainant submits that the complainant was under continuous treatment prescribed by the opposite party from 05.03.2007 to 21.03.2007 till he was admitted in C.M.C Hospital, Vellore. The opposite party did not at all diagnose the problem of the complainant. At first he prescribed some medicines for muscular pain on 05.03.2007 later he suspected some bony lesions on 12.03.2007. After observing X-Ray report he found that he has no bony lesions, and then he changed his prescription without any diagnosis. On 17.03.2007 the opposite party suspected that it may be Vascular Pathology and prescribed medicines accordingly.

The complainant submits that as the problem aggravated, the opposite party referred the complainant for Doppler test at Sapthagiri Scan Centre, Tirupathi on 19.03.2007. The opposite party found that his suspicion of diagnosis of the disease of the complainant was wrong and again changed the medication without any diagnosis. Within two days, thereafter the condition of the complainant was aggravated and he developed secondary infection to his right leg and postules, body rash and itching on the other body parts in addition to the primary infection of his left leg. Therefore the contention of the opposite party that the line of treatment adopted by him is proper is not all correct.

The complainant submits that the opposite party prescribed medicines like a quack doctor, who prescribes medicines on the basis of trial and error method. Therefore the arguments of the opposite party that the drugs prescribed by him will not induce “Atypical Erythema Multiforme” is absolutely false and it is disproved by the evidence of PW-2. The complainant suffered a lot mentally, physically and financially. The opposite party committed deficiency of service and the complaint may be allowed.

The learned counsel for the opposite party contends that the Hon’ble Supreme Court and National Commissioner enunciated certain principles for consideration of medical negligence. He submits that in a decision reported in II-(2007) – C.P.J – 259 (N.C) – in NASEEM MOHAMMED BASHIR ANSARI Vs DHANGE HOSPITAL & OTHERS – wherein their lordships held as follows :-
“……. Law on the subject is well settled by the Hon’ble Supreme Court in the case of Dr.Jacob Mathew Vs State of Punjab, 122 (2005) DLT 83 (SC)=III (2005) CPJ 9 (SC) =III (2005) CCR 9(SC) =VI (2005) SLT 1 =(2005) 6 SCC. In this case it was held that the onus of proof of medical negligence lies with the complainant and also laid down the principle of Bolam’s test which required the duty of care which inter alia meant whether the doctor had the knowledge to deal with a case and prescribing the treatment as also the administration of such treatment. It has not been shown to us that Dr.Jaya was not qualified to handle the case and no medical expert opinion has been led by the appellant to show whether the treatment given by her was improper and for that anything was wrong in the administration of the treatment?

He also relied on the decision reported in 2004 (I)- CPR –(State Commission – Bihar)- 64 – at Page No. 68 – in Uday Shankar Bhagat Vs Santosh Kumar Sah – wherein their lordships held that

……A doctor was not to be held negligent simply because something went wrong. For any error doctor can not be held liable. He can only be liable when he fell below the standard of a reasonably competent practitioner in his field. In this case the complainant has not adduced any expert opinion to prove that appellant- doctor has adopted the line of treatment below the standard which a normal doctor should have adopted. A doctor can not be held responsible if some one else of better skill and knowledge would have prescribed and performed a better treatment. This view has been taken by Supreme Court and also by the National Commission. In the famous case of Dr.Laxman Balakrishnan Joshi Vs Dr.Trimbak Bapu Godbole, the Supreme Court held that the skill of two doctors may differ and they may prescribe different treatment. This will not be a basis to come to the conclusion that one doctor who adopted the skill but did not succeed with the patient was negligent in his duty……….”

He also relied on the decision reported in III(2005) – CPJ – 9 – (S.C) in JACOB MATHEW (DR.) Vs STATE OF PUNJAB & ANOTHER – wherein their lordships held as follows :-
“……..Three weighty considerations must be kept in mind by any Forum trying issue of medical negligence: Negligence in context of medical profession necessarily calls for treatment with difference: Difference between occupational negligence and professional negligence: Standard to be applied to hold professional negligent: Simple lack of care, error of Judgment or accident is not proof of negligence on part of medical professional………..”

The learned counsel for the opposite party contends that in a case of medical negligence, the complainant is bound to prove negligence of a Doctor supported by expert opinion. He further contends that the complainant has to show that 1) the treating doctor has no qualifications to treat the ailment. 2) The line of treatment adopted by him is not according to acceptable medical science. 3) He has not taken due care in treating the patient. And 4) the wrong suffered by the patient is the direct result of wrong treatment by the doctor. He contends that the complainant approached the opposite party for a simple leg pain. The complainant has not alleged that the opposite party has no qualifications to treat ailment. He submits that the opposite party is a qualified doctor as per testimonials Ex.B5 to B9 issued by the Professors. He has got much experience as a civil surgeon and Ex.B10 to B12 prove the same. Therefore the opposite party has all qualifications to treat the ailment of leg pain suffered by the complainant.

The learned counsel for the opposite party contends that on 05.03.2007 the opposite party prescribed some medicines for 5 days to the complainant and on 12.03.2007 the complainant again came to the doctor with the same left leg pain and X-Ray was taken and no bony lesion was found and he prescribed medicines. Again on 17.03.2007 the complainant came to the opposite party and the opposite party suspected Vascular Pathology relating to the Blood Vessels of the leg and advised by the Doppler Test. On 19.03.2007 the opposite party observed the Doppler Test Report and came to conclusion that there was normal blood flow in the vessels and he prescribed drugs like Novamax which is a anti biotic and anti inflammatory drug. This shows that the opposite party had attended the complainant with due care. Therefore there is no negligence on the part of opposite party in treating the complainant. The line of treatment adopted by him is correct. The complainant could not establish that the line of treatment given by the opposite party is wrong. Therefore there is no deficiency in service. The complaint may be dismissed.

Keeping in view the principles enunciated by the Hon’ble Supreme Court and National Commission cited supra with regard to proof of medical negligence by the complainant, I now consider the oral and documentary evidence placed before this Forum. PW-1 is the complainant. He stated that on 05.03.2007 he approached the opposite party with a general pain in his left leg, he prescribed some medicines for 5 days, Ex.A1 is the prescription. After using those medicines as per the advice of the opposite party, there was no improvement in his left leg pain. Again on 12.03.2007 he consulted the opposite party and he changed some medicines continued the treatment. But the problem of his left leg became severe and he consulted to the opposite party 3rd time on 17.03.2007, this time the opposite party suspected that his problem may be vascular pathology and changed the previous prescription. After use of those medicines for two days his problem was become more severe and he is unable to move, generalized body rash and swelling with development of pustules of the left leg was formed. Immediately on 19.03.2007 morning he consulted opposite party 4th time. Then the opposite party asked him to get a scanning report of Doppler Test from M/s Sapthagiri Scan Centre, Tirupathi.

PW-1 stated that he obtained Doppler Test Report and showed to opposite party on 19.03.2007. Again the opposite party changed the medication within two days, after use of medicines his problem became more serious and Erythema over both legs and pustules as well as general body rash associated with severe itching developed. He consulted the opposite party 6th time on 21.03.2007 and he expressed his inability to treat further. Ex.A2 and Ex.A3 are the medicines used by him. Therefore the line of treatment adopted by the opposite party is not on collect lines and on account of his treatment he developed Erythima over his both legs, rashes associated with severe itching all over his body.

PW-1 stated that he was admitted in C.M.C Hospital, Vellore on 21.03.2007. At the time of admission into hospital it was diagnosed “Atypical Erythema Multiforme” “with secondary infection to right leg, which means drug poisoning and drug reaction effects. Ex.A5 is the discharge summary. Ex.A8 is the case sheet. He contends that the opposite party gave wrong treatment and he suffered both physically and mentally and the opposite party committed deficiency in service.

PW-2 is Dr. George Mathew, Professor in Gastro Intestinal surgery and general surgery. He is working in C.M.C Hospital, Vellore since 1989. He deposed that on 21.03.2007 the complainant approached him with a complaint that he was having swelling and pain and on the skin mainly on legs and rashes over other parts of the body. He along with his team of Doctors treated the complainant from 21.03.2007 to 28.03.2007. He deposed that he recorded in Ex.A5 that the complainant had “Atypical Erythema Multiforme” disease all over body. The primary infection was induced by him on the complainant’s left leg. Ex.A7 is the out patient book. It was given to him, after discharge from the Hospital. Ex.A6 are the medical expenses incurred by him in the Hospital. As per Ex.A13 the complainant consulted Dermatology Department on 07.04.2007.

PW-2 stated that they also conducted Doppler Test and they did not find any irregularities like blood vessels or clot. He stated that the investigation on the complainant conducted by them do not show any nature of disease except drug induced “Atypical Erythema Multiforme” with secondary infection of right leg.

RW-1 is the opposite party himself. He stated that the drugs prescribed by him for the treatment of the complainant will not induce “Atypical Erythema Multiforme”. RW-1 further stated that in the discharge summary Ex.A5 issued by C.M.C Hospital, it is stated that “the patient had taken some medication from a Doctor out side for pain in the legs, after which he developed “Atypical Erythema Multiforme”, this shows that the complainant had taken treatment from a doctor for pain in the legs, after which he developed “Atypical Erythema Multiforme” and body rash. Further he stated that it is pertinent to see that the complainant never named him a doctor from whom he took treatment and on the other hand he stated that he took some medication from a Doctor out side for pain in the legs and after which he developed “Atypical Erythema Multiforme”. He stated that there is no proof that the complainant had followed the prescription given by him. He might have consulted another doctor for pain in his legs and the medication prescribed by him might have resulted in development of “Atypical Erythema Multiforme” and body rash. It is an admitted fact even by RW-1 that the complainant took treatment from him from 05.03.2007 to 19.03.2007. On 19.03.2007 he observed the Doppler test report brought by the complainant to him and prescribed medicines for 4 days. It is the affidavit of PW-1 that he used the medicines prescribed on 19.03.2009 for two days and within 2 days on 21.03.2007 the complainant approached him stating that he was more serious and suffering from severe pain of rashes coupled with itching and he developed Erythema pustules, later on 21.03.2007 at 6.30 a.m he joined in C.M.C Hospital, Vellore.

It is the Affidavit of PW-1 that on 21.03.2007 the complainant again 6th time consulted the opposite party as he developed Erythema and pustules on his two legs and rashes and severe itching all over his body, then the opposite party expressed his inability to treat him and so he joined C.M.C Hospital, Vellore. This Affidavit of PW-1 is very natural, truthful and convincing. He has not consulted any other Doctor after 19.03.2007. After the opposite party prescribed medication for 4 days, he continued the same. There is no scope also for PW-1 to consult a new doctor, after he was prescribed medicines on the basis of Doppler Test by the opposite party. So the opposite party for the sake of argument took the defence on the basis of endorsement in the case sheet issued by C.M.C Hospital, Vellore to the effect that the complainant reported that a doctor out side treated the complainant for pain in the legs. The opposite party tried to take advantage of the noting “a doctor out side treated the complainant”. The complainant alone was under the treatment of the opposite party from 05.03.2007 to 19.03.2007 till he was admitted in Hospital on 21.03.2007. So I disbelieve the Affidavit of RW-1 that the complainant was treated by some doctor between 19.03.2007 and 20.03.2007.

RW-1 further stated that he treated the complainant with due care and the line of treatment adopted by him is correct. The drugs prescribed by him for the treatment of the complainant will not induce “Atypical Erythema Multiforme”. He stated that he is a qualified doctor, he did Post Graduation in Master of Surgery in the year 1995 and he worked in different Hospitals as Assistant Surgeon and Civil Surgeon and he is experienced doctor in general medicine and he gave correct treatment to the complainant. Ex.B5 to B9 are the testimonials given by Professors and specialist doctors, they show that the opposite party has professional abilities.

Ex.B10 to B 12 speak that he worked in reputed hospital in Tirupathi and Nellore. No doubt the opposite party is an experienced doctor in surgery. But he could not cure a simple leg pain disease suffered by the complainant, though he treated the complainant for such a simple disease from 05.03.2007 to 21.03.2007. The complainant explained the number of times he consulted the opposite party during the treatment period from 05.03.2007 to 21.03.2007. According to him he consulted opposite party on 05.03.2007, 12.03.2007, 17.03.2007, 19.03.2007 and 21.03.2007 and he was in continuous treatment under the opposite party. At first he consulted RW-1 only for simple leg pain, but the leg pain was increased day to day and it went to the extreme pain and he developed Erythema Multiforme and pustules, rashes and severe itching all over his body.

It is the Affidavit of PW-1 that the opposite party could not cure his disease of simple leg pain. On the other hand he prescribed some medicines without conducting trial basis on those medicines, which medicines created severe problem to him and he developed pustules, rashes and severe itching all over his body and out of fear of life, he joined in C.M.C Hospital, Vellore.

PW-2 is a Doctor, who treated PW-1 in C.M.C Hospital, Vellore and he gave Discharge Summary report Ex.A5. In this discharge summary he noted that the complainant came to his hospital with a complaint that he was having generalized body rash and swelling with development of pustules for the left leg for the past 2 days, the patient had taken some medication from a doctor out side for pain in the legs, after which he developed “Atypical Erythema Multiforme” over both legs and later pustules as well as generalized body rash associated with severe itching. He did not have any known allergies.

PW-2 stated that the discharge summary prepared by him on the basis of case sheet and it was correct. He noted in his discharge summary that the complainant had multiple Erythema lesions over all his body over the left leg, there was a large area with multiple pustules and there was pus discharge present. There were blebs of fluid seen over the leg. His peripheral pulses were palpable and there were not distal neurological deficits. This discharge summary Ex.A5 shows that the complainant approached PW-2 with severe pain and disease. Ex.A8 is the case sheet maintained by C.M.C, Hospital, Vellore. The case sheet shows that the complainant was provided treatment for both leg pain and “Atypical Erythema Multiforme” like lesions over thighs and back. On 21.03.2007 it was noted in the case sheet Ex.A8 of C.M.C Hospita, Vellore that the complainant was having ulsar and puss over his right leg, since two days he has itching and pain on the right leg mild oozing from the wound. The complainant has pain and itching over his left leg. On 24.03.2007 it was noted in the case sheet Ex.A8 that the complainant has no complaint of pain in left foot and it is kept elevated. But he is having itching and rashes in his back and upper limbs. The case sheet shows that the said problem is also cured by 26.03.2007 and he became normal by 27.03.2007 and he has oozing from wounded side and he slept well on 27.03.2007. All these days from 21.03.2007 to 27.03.2007 he was given crystal penicillin and Cloxacilline 500 Mg and other medicines. Though the complainant was cured of his left leg general pain by 24.03.2007 itself and thereafter he was treated for wounds, pustules and itching all over his body and was cured by 27.03.2007.

The learned counsel for the complainant contends that the complainant cured of his leg pain within 3 days and thereafter from “Atypical Erythema Multiforme” by 27.3.2007. Because the opposite party has not diagnosed the disease and suggested medicines after medicines for 14 days and the medicines suggested on 19.03.2007 Novamox reacted, he developed “Atypical Erythema Multiforme”, which is a “drug induced disease” as noted by the doctor in C.M.C Hospital, Vellore in the case sheet Ex.A8. It is true that at the time complainant consulted the opposite party, he was suffering from simple leg pain. It is also true that the Opposite party treated the complainant for two weeks. After 15 days the simple leg pain turned into “Atypical Erythema Multiforme” and also rashes associated with severe itching all over his body and the primary infection of pain in left leg was still there. No doubt the opposite party had taken many days more than two weeks from 05.03.2007 to 19.03.2007 and he could not cure the disease of the complainant. When the complainant approached him, he has no complaint of “Atypical Erythema Multiforme” with secondary infection in his right leg and rashes associated with severe itching all over his body as noted in the case sheet. Ex.A8 issued by C.M.C Hospital, Vellore. The complainant says that it is on account of improper diagnosis of disease and wrong medicines suggested by the opposite party, particularly the wrong medicines suggested on 19.03.2007, he faced severe problem. In proof of it he examined PW-2. He only stated that “Atypical Erythema Multiforme” is a drug induced disease with secondary infection of right leg. He has not stated anything about the prescriptions given by the opposite party. Ex.A1 is the prescription given by opposite party from 05.03.2007 to 19.03.2007. The complainant has not elicited from PW-2 anything about these medicines particularly with reference to medicines used on 19.03.2007, if they are used whether they will react into rashes and severe itching and drug induced decease “Atypical Erythema Multiforme” will be formed ?

In the cross examination PW-2 stated that “Atypical Erythema Multiforme” can be due to various causes one of them may be infection. The problem started to the complainant from 19.03.2007. On 19.03.2007 the opposite party suggested Novamax, Sadace- D, Axin. Axin is an injection. PW-2 stated Axin controls infection. Fevastine is also an injection it controls fever. The complainant has not elicited anything about the medicines prescribed by opposite party through PW-2. The opposite party alone elicited about the medicines used by the complainant on 17.03.2007 on 19.03.2007 as per Ex.A2 and A3. PW-2 has not spoken anything about reaction of those medicines.

RW-1 was examined by PW-1 at length he stated that Novamax and Sadase-D are for anti inflammatory. Axin is an injection and anti biotic used for reducing infection Nellora is anti allergenic purpose. He denied that those medicines are given without test and on account of use of those medicines the complainant developed rashes, itching, pustules all over his body. The right way for the learned counsel for the complainant is to elicit the severety of the use of these medicines from PW-2 or any other independent expert doctor. Naturally RW-1 will defend his own case and answers that those medicines do not react. On the other hand PW-2 has not spoken anything about the medicines used by the complainant as per Ex.A1 to A3. Therefore it is not possible to say whether those drugs caused reaction to the complainant and created a new disease like “Atypical Erythema Multiforme” with rashes and severe itching all over his body.

The learned counsel for the complainant is of the opinion that the medicines changed by the opposite party during two weeks period created problem to the complainant Instead of curing the simple leg pain. The said prescription increased problem due to wrong suggestion of medicines and the opposite party is responsible for the complainant developing “Atypical Erythema Multiforme”, which is drug induced disease. But PW-2 stated that the “Atypical Erythema Multiforme” can be due to various causes one of them may be infection, if that is so, the learned counsel for the complainant ought to have elicited from PW-2 that the wrong suggestion of medicines on 17.03.2007 and 19.03.2007 is the cause of infection, which developed into “Atypical Erythema Multiforme”. The case of the complainant is specific that the opposite party gave wrong medicine Novamax and it reacted and the complainant developed rashes associated with sever itching. But the evidence of PW-2 is that “Atypical Erythema Multiforme” is possible by infection also. Therefore there is no clear evidence that Novamax or Axin reacted and that the complainant suffered from drug induced disease, such as “Atypical Erythema Multiforme”.

The learned counsel for the complainant relied on the decision reported in II(2005)- CPJ – Page 601 at 621 (Chhattisgarh State Consumer Disputes Reddressal Commission- Raipur) - in Sandeep Agrawal & others Vs Modern Medical Institute & others- wherein their lordships held as follows :-
In view of the above discussion we are of the considered opinion that the O.P.No.2 was negligent in not recording history of the patient while writing prescription. He was further negligent in not advising relevant tests prior to starting lithium therapy and issuing advice and warning regarding lithium in writing, either on the prescription of otherwise. He was negligent in not properly monitoring serum lithium level for a long time of 6 months, though he administered heavy dosage of lithium, to the complainant No.l in combination with carbamzapine without taking proper care and caution leading to lithium toxicity resulting in cerebellare degeneration of a bright young boy i.e a medical student.

The facts of the above care are not applicable to the facts of present case. In the above case there is clear evidence that the doctor is negligent in not recording history of the patient while writing prescription. He was further negligent for not advising relevant tests prior to starting lithium therapy. The lithium medicine is used for 6 months and the doctor is negligent in not properly monitoring serum lithium level for a long time of 6 months. In this case the complainant has not adduced any evidence to the effect that any of the drugs prescribed by opposite party in Ex.A1 to A3 resulted in “Erythema Multiforme”. Therefore the facts of the above case are not applicable to the facts of the present case. The learned counsel for the complainant filed medical texts. But they are not directly pointing to the medicines suggested in Ex.A1 to A3.


The learned counsel for the opposite party contends that in order to prove negligence of the doctor, complainant has to lead adequate evidence with supportive medical texts. In this regard he relied on the decision reported in IV-(2006) – CPJ – 71(NC) at Page No. 76 – Babu Rao Satappa Irrannanavar Vs Kle Society’s Hospital & Research Centre & another wherein their lordships held as follows:
“…….Learned Counsel submitted extract of the judgments of the Apex Court to support his case that expert evidence could not be substituted by the judicial For a with its own view.

(a)In Vinitha Ashok Vs Lakshmi Hospital, VI (2001) SLT 735=I (2002) CPJ 4 (SC) = (2001) 8 SCC 731 at Para 24 it is stated:

“ A Doctor will not be guilty of negligence if he has acted in accordance with practice accepted as proper by a responsible body of medicial men skilled in that particular art and if he has acted in accordance with that practice then merely because there is a body that takes a contrary view, will not make him guilty of negligence…..”.


and also he relied on decision reported in IV-(2006) – CPJ – 71(NC) at Page No. 80 – Babu Rao Satappa Irrannanavar Vs Kle Society’s Hospital & Research Centre & another wherein their lordships held as follows:
“What is expected of a doctor is whether the procedure adopted by the doctor is acceptable to medical profession. This point has been elaborated by the Apex Court in the case of Achutraon Haribhau Khodwa Vs State of Maharashtra, I(1996) CLT 532, (SC) = IV (2006) CPJ 8 (SC) =(1996) 2 SCC 634 in the following words:

“The skill of medical practitioners differs from doctor to doctor. The very nature of the profession is such that there may be more than one course of treatment which may be advisable for treating a patient. Courts would indeed be slow in attributing negligence on the part of a doctor if he has performed his duties to the best of his ability and with due care and caution. Medical opinion may differ with regard to the course of action to be taken by doctor treating a patient, but as long as a doctor acts in a manner which is acceptable to the medical profession and the court finds that he has attended on a patient with due care, skill and diligence and if the patient still does not survive or suffers a permanent ailment, it would be difficult to hold the doctor to be guilty of negligence……”.

In para 43 : “To prove the negligence of any doctor, the complainant has to lead adequate evidence with supportive medical texts”.

In the above case their lordships held that adequate evidence is required to prove negligence against doctor. In this case the complainant has not adduced clear and cogent evidence to mulct the opposite party with negligence.

The complainant suspects that the opposite party gave wrong treatment as he was not cured for 15 days. In this regard he relied on the decision reported in I(2005) C.PJ – 673 –at Page 676 – Uttaranchal State Consumer Disputes Redressal Commission, Dehradun – in Mumtaj Ansari Vs Zubeda - wherein their lordships held as follows:
……It is probably because this doctor, appellant has got his main nursing home at Meerut but there is nothing in the written statement or affidavit of the appellant that he has conducted any test or exercise to know what was the real cause of the ailment persisting. The appellant also admits that the complainant has been referred to Meerut. It means that he could not cure. He has further admitted that the complainant was referred for Meerut for better treatment in her own interest. It means that it is admitted fact that the interest of the complainant could not be served by the treatment of the appellant. Then before referring the complainant to Meerut, it was the obligatory duty of the appellant to have enquired the after effects of appellant to have enquired the after effects of his operation and he should have immediately informed these facts to the complainant because the complainant has got every right to know why she has not been cured. But there is nothing on the record to show that these informations were given by the appellant to the complainant. This is definitely deficiency in service of the appellant…..”

The facts of the above case are not applicable to the facts of this case. In this case the complainant has not adduced evidence that the drugs prescribed by the Opposite party in Ex.A1 to A3 are reacted and that they are wrong medicines. Hence the facts of the above case are not applicable to the facts of this case.
The learned counsel for the opposite party contends that serious question of medical negligence and deficiency can not be proved by suspicion and discrepancy, in this regard he relied on the decision reported in III-2005 – CPJ – 369 (K.A.S.C.D.R.C, Bangalore) in G.Sampanti Vs Hindustan Aeronautics Limited & another – where in their lordships held as follows :-
…….Allegations made are required to be proved. There is no specific admissions by the opposite parties. The complainant has not shown that administration of general anesthesia to him has adversely affected, and has resulted in the set back of his health.
such a case, even if he was not fit for general anesthesia, and it is administer, is an act of commission by O.P.2. Discrepancy in the records, are not convincing to establish deficiency in service and negligence”.

…….It has concluded that the complainant has failed to discharge the initial burden of proving the complainant allegations by an expert evidence, supporting his case, and dismissed the complaint. This approach of District Forum is proper and correct, in the light of case laws supporting that view, as discussed in the previous para of this order. Written arguments is not an answer for this lacunae, substantiation of complainant case is only by way of documents and oral evidence in toto i.e, affidavit and cross examination of deponents confronting the points set out in the arguments in writing, which is lacking in this case. Complainant is satisfied only with a letter of O.P.2 admitting of not suggesting the dosages of medicine prescribed. Regarding the case laws cited by complainant AIR 1969 SC 128 is applied to this case and I(1998) CPJ 151 & III (2000) CPJ 478, are distinguished on facts. As concluded, that is not sufficient to prove medical negligence. The contention of the appellant in that regard cannot be upheld, as it is rejected.

In this regard he lied on the decision reported in III-(2006) –CPJ – 142 (N.C.) at Para 61 at Page No. 169 – in – where in their lordships held that :
“ Medical opinion may differ with regard to diagnosis or treatment, but in a complicated case if they occur and Court will be slow in attributing negligence on the part of the Doctor if he has performed his duties to the best of his ability and with due care and caution.”

In the above case their lordships held that the doctor can not be held liable for want of exact diagnosis. Therefore on assessing the evidence of PW-1, PW-2 and RW-1 the complainant failed to show that the medicines prescribed by the opposite party created reaction to the complainant, which developed into “Atypical Erythema Multiforme”, He also failed to show that due to improper diagnosis of the deceased and prescribing wrong medicines and changing them from time to time for a long period of 15 days the complainant suffered from the disease “Atypical Erythema Multiforme”. No doubt the case sheet Ex.A8 shows that C.M.C Hospital, Vellore treated the complainant in a short period from a very serious disease and the complainant was completely cured, but on the basis of treatment given by the C.M.C Hospital, Vellore it can not be said that the opposite party is negligent in his treatment.
The learned counsel for the complainant ought to have examined a specialist doctor to find out whether the medicines suggested by the opposite party reacted and the complainant suffered the said disease. At least he would have elicited the reactive nature of each medicines prescribed by the opposite party from PW-2, which he has not done. Further the opposite party filed Affidavits of doctors i.e RW-2 to RW-5, who stated that the line of treatment given by RW-1 is correct. The learned counsel for the complainant contends that the doctors RW-2 to RW-5 have not treated PW-1 and they are not competent to give such affidavits. But the learned counsel for the opposite party contends that in as much as the complainant did not cross examine RW-2 to RW-5, he cannot say that the affidavits of RW-2 to RW-5 are not reliable. In this regard he relied on the decision reported in 2007(1) – C.P.R – 284 (N.C) – in the above case their lordships held that “when evidence was let in by filing affidavit of experts not cross examined them, would amount to non challenging the said evidence”. In this case also the complainant has not cross examined RW-2 to RW-5 who stated that the treatment given by opposite party is on correct lines. For all these reasons I am of the view that there is no sufficient material before this Forum to find that the complainant suffered from “Atypical Erythema Multiforme”, which is a drug induced disease on account of use of any of the medicines suggested by opposite party. Hence I am of the view that the complainant failed to make out the case against the opposite party and he is not entitled to any relief against him.
Point s 2 to 4 are answered against the complainant.
Point No. 5:-
In the result the complaint is dismissed without costs.