Date of Filing : 19.10.2022
Date of Disposal: 14.07.2023
DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION
BEFORE TMT. Dr.S.M. LATHA MAHESWARI, M.A.,M.L, Ph.D (Law) .…. PRESIDENT
THIRU.P.VINODH KUMAR, B.Sc., BL., .....MEMBER-I
THIRU.P.MURUGAN,M.Com.,ICWA(Inter)., B.L., ....MEMBER-II
THIS FRIDAY, THE 14th DAY OF JULY 2023
No.1148/2, Tamil Nadu Housing Welfare Board,
Tirur Village & Post,
Thiruvallur Taluk & District. ……Complainant.
Sri. Balaji Clinic,
Thiruvallur Taluk & District. 602 024. .......Opposite party.
Counsel for the complainant : Mr.P.Balachandar. Advocate.
Counsel for the opposite party : exparte.
This complaint is coming before us on various dates and finally on 27.06.2023 in the presence of Mr.P.Balachandar, counsel for the complainant and opposite party was set exparte for non appearance and upon perusing the documents and evidences of complainant’s side, this Commission delivered the following:
PRONOUNCED BY TMT. Dr.S.M. LATHA MAHESWARI, PRESIDENT.
This complaint has been filed by the complainant u/s 35 of the Consumer Protection Act, 2019 alleging deficiency in service with regard to the medical negligence on the part of opposite party in giving treatment to the complainant along with a prayer to pay a sum of Rs.50,00,000/- along with Rs.1,10,000/- for mental agony and Rs.63,500/- for medical expenses and for other ancillary reliefs.
Summary of facts culminating into complaint:-
Being aggrieved and dissatisfied by the treatment given by the opposite party resulting in amputation of second toe the present complaint was filed.
The crux of the complaint allegations was that on 12.07.2022 the complainant approached the opposite party for numbness of left leg who after investigation prescribed PANZO-40 TAB 1-0-1, ECOSPRIN 150 MG TAB -0-0-1, REJUVIN OD TAB -1-0-0, COBANERVE G TAB -0-0-1. Further, as swelling was found in the leg the complainant again contacted the opposite party on 16.07.2022 who examined and prescribed medicines C Neoten CV 625 1-1-1 (6), T Trywak A Tab 1-0-1 (4), Rantac 150 tab 1-0-1 (4), confect 400 tab 0-0-1(2). As the complainant got further pain and swelling again she approached the opposite party on 21.07.2022, the opposite party without proper treatment prescribed the same tablets given on 16.07.2022. However, the complainant’s leg got swelling with extreme pain, numbness and discoloration. On 24.07.2022 when complainant contacted the opposite party and questioned about the same, the opposite party stated that the toe got spoiled and could not be treated by him. When the complainant approached another Doctor on the same day they advised that as gangrene had developed the toe has to be removed and asked the complainant to approach some other Hospital having the facility to remove it. Next day the complainant approached Savitha Hospital where the left second toe finger was removed. Thus stating that only due to the wrong treatment given by the opposite party the complainant had lost a part of his body alleging deficiency in service the present complaint was filed claiming a compensation of Rs.50,00,000/- along with Rs.1,10,000/- for mental agony and Rs.63,500/- for medical expenses and for other ancillary reliefs.
On the side of complainant proof affidavit was filed and documents marked as Ex.A1 to Ex.12 was submitted. Inspite of sufficient notice the opposite party did not appear before this commission and hence he was called absent and set exparte on 27.03.2023 for non-filing of written version within the mandatory period as per the statute.
Points for consideration:-
Whether the complaint allegations with regard to medical negligence resulting in deficiency in service on the part of opposite party in giving treatment to the complainant has been successfully proved by admissible evidence by the complainant?
If so to what reliefs the complainant is entitled?
On the side of complainant the following documents were filed for proving the complaint allegations;
Aadhar card of the complainant was marked as Ex.A1;
Prescription given by the opposite party dated 12.07.2022 was marked as Ex.A2;
Prescription given by the opposite party dated 21.07.2022 was marked as Ex.A3;
Photos of the complainant’s leg with CD was marked as Ex.A4;
Prescription given by Logidasans’ Hospital dated 24.07.2022 was marked as Ex.A5;
Inpatient cash bill receipt given by Saveetha Medical College Hospital dated 25.07.2022 was marked as Ex.A6;
Radiology X-Ray of the complainant given by Saveetha Medical College Hospital dated 25.07.2022 was marked as Ex.A7;
Radiology report of the complainant dated 25.07.2022 was marked as Ex.A8;
Medical bills of the complainant issued by the Saveetha Medical College Hospital was marked as Ex.A9;
Discharge summary of the complainant issued by Saveetha Medical College Hospital dated 15.08.2022 was marked as Ex.A10;
Legal notice issued by the complainant’s counsel to the opposite party dated 13.09.2022 was marked as Ex.A11;
Returned cover was marked as Ex.A12;
Heard the oral arguments of learned counsel appearing for the complainant and perused the pleadings and material evidences produced by him. The crux of the oral arguments by the learned counsel appearing for the complainant is that no test was conducted before prescribing medicines to the complainant and all the medicines was given only for stomach problems. When the complainant contacted again and again the opposite party failed to follow the standard treatment and has given medicines which resulted in urinary problem and finally amputation of toe finger. The opposite party though treated from 12.07.2022 to 24.07.2022 did not given proper treatment. Thus alleging deficiency in service the learned counsel for the complaint sought for the complaint to be allowed.
On appreciation of the entire pleadings and materials we could hold that the complaint has to fail as no deficiency in service or medical negligence was proved by the complainant for the reasons cited below;
Ex.A2 the prescription given by the opposite party clearly shows that the diabetic level of the complainant was mentioned as PPBS 398mg% which proves that the complainant was a type 2 diabetic patient and was having high sugar level.
Vide prescription dated 12.07.2022 the opposite party has prescribed medicines appropriately for nerve numbness and for type 2 diabetic i.e., Glomour MI Tab and Janumet 50/500 Tab.
Even on 16.07.2022 the blood sugar level was noted as 230 and the medicines prescribed C Neoten CV 625 1-1-1 (6), T Trywak A Tab 1-0-1 (4), Rantac 150 tab 1-0-1 (4), confect 400 tab 0-0-1(2) relates to antibiotic for aches and pain and for bacterial infections. Even injection by IV for bacterial infection was also given. Hence the opposite party had treated the complainant on 16.07.2022 in a proper manner by prescribing appropriate medicines.
When the complainant approached the opposite party on 21.07.2022 again medicines were prescribed for infection such as antibiotic and bacterial skin ointment which was advised to be continued when the complainant approached on 24.07.2022.
Complainant did not produce any literature to show that a particular treatment ought to have been followed which the opposite party had failed to follow for holding that he was negligent in treating the complainant and for imposing liability on him.
On verification of medical literatures by this commission it was found that there is no exact treatment for numbness or discoloration of foot ulcer for diabetic patient. All literatures suggest only controlling blood sugar level, antibacterial skin ointments etc. In said scenario the medicines prescribed by the opposite party could not be termed as improper treatment. Even the lab Report of Saveetha Medical Collage Hospital it is found the glucose (Fasting) level was 298mg/dl when the preferred level is 74 to 106. Likewise glucose (random) level was 323mg/dl when the preferred level was 80 to 140. The HbA1c was 12.6% when the normal level was 4.2 to 6.2 which indicates that the complainant was having poor control over diabetics as on 26.07.2022. It is thus established that the complainant was having high level of type 2 diabetics beyond control.
No evidence was produced by the complainant to show that due to the medicines prescribed the toe got infected resulting in gangrene leading to amputation. On the other hand, it is apparently seen that the high level of diabetics resulted in numbness, swelling and consequently discoloration, gangrene etc.
For the above reasons we hold that the complainant had failed to prove that the opposite party did not follow the standard procedure and skill for the ailment of the complainant resulting in medical negligence leading to deficiency in service. We also find our decision supported by a recent order passed by the Apex Court in Shabir Husain v. Centre for Sight, 2023 SCC OnLine NCDRC 190, 09-06-2023 wherein it has been held that no sensible medical professional would intentionally commit an act or omission which would result in harm or injury to the patient, since their professional reputation would be at stake. “A single failure or lapse may cost them dear”....
Further In the authoritative case of Dr. Laxman Balkrishna Joshi vs. Dr. Trimbark Babu Godbole and Anr., reported in AIR 1969 SC 128 and in A.S.Mittal v. State of U.P., AIR 1989 SC 1570, it was laid down that when a doctor is consulted by a patient, the doctor owes to his patient certain duties which are: (a) duty of care in deciding whether to undertake the case, (b) duty of care in deciding what treatment to give, and (c) duty of care in the administration of that treatment. A breach of any of the above duties may give a cause of action for negligence and the patient may on that basis recover damages from his doctor. In the present case it is seen that the Dr had exercised due care in deciding what treatment to give and had treated by giving proper medicines appropriately. Inspite of the same, the complainant suffering amputation is unfortunate and hence no liability could be fixed on the Doctor. Thus we hold that the complaint allegations as to deficiency in service on the part of the opposite party has to be negatived.
As we have held above that the complainant had failed to prove any medical negligence on the part of the opposite party, she is not entitled to any reliefs as claimed in the complaint from the opposite party. Thus we answer the point accordingly.
In the result the complaint is dismissed. No order as to cost.
Dictated by the President to the steno-typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this the 14th day of July 2023.
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MEMBER-II MEMBER-I PRESIDENT
List of document filed by the complainant:-
Ex.A1 ............... Aadhar card of the complainant. Xerox
&16.07.2022 Prescription given by the opposite party. Xerox
&24.07.2022 Prescription given by the opposite party. Xerox
Ex.A4 ................ Photos of the complainant’s leg with CD. Xerox
Ex.A5 24.07.2022 Prescription given by Logidasans’ Hospital. Xerox
Ex.A6 25.07.2022 Inpatient cash bill receipt given by Saveetha Medical College Hospital. Xerox
Ex.A7 25.07.2022 Radiology X-Ray of the complainant given by Saveetha Medical College Hospital. Xerox
Ex.A8 25.07.2022 Radiology report of the complainant. Xerox
Ex.A9 ............... Medical bills of the complainant issued by the Saveetha Medical College Hospital. Xerox
Ex.A10 15.08.2022 Discharge summary of the complainant issued by Saveetha Medical College Hospital. Xerox
Ex.A11 13.09.2022 Legal notice issued by the complainant’s counsel to the opposite party. Xerox
Ex.A12 16.06.2022 Returned cover. original
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MEMBER-II MEMBER-I PRESIDENT