1. The Complaint was filed by the Consumer Protection Council, Tamil Nadu, Tiruchirapalli (Complaint No.1) on behalf of the 2^nd Complainant. Mr. U. S. Selvaraj, a prison constable. The OP-1 is Tiruchi Speciality Hospital and Dr. M. Shanmuvgavel (OP-2) was a consultant with OP-1, in internal medicine.
2.           The facts are that deceased, Smt. Solai, wife the Complainant -2 ( in short “Patient”)  was  working in LIC,  as Assistant Administrative Officer (AAO), drawing a salary of Rs.14,000/- per month. On 08.02.2000, she was admitted to OP-1, with complaints of wheezing. She was discharged on the next day. As per prescription, (Ex-1), she bought medicines from the pharmacy inside the hospital and obtained cash receipt (Ex-2). She consumed the drugs 3-times-a-day as advised by Dr. Shanmuvgavel (OP-2). On 10.02.2000, she experienced convulsions and shaking of hands, for which she contacted OP-2, on telephone, who advised her to continue the drugs, as prescribed and said that she will get relief. He also expressed that it may be any side effect of one of the drug (Salbutamol). Hence, the patient continued to take the medicines. On 12.02.2000, she experienced shivering while in the office. She again contacted the OP-2, who advised the same. It went on increasing, so, at around 01.30 p.m., she left the office for home. At around 10.00 p.m. in the night, she had severe shivering and convulsion and became unconscious. Her brother called the OP-2 who advised him to bring her to the hospital, and then her husband took her to OP-1 at 10.00 p.m. At 12.45 a.m. the OP-2/Dr. Shanmuvgavel arrived and examined the patient, but unfortunately the patient succumbed at 01.15 a.m. Thereafter, the OP-2 became non-cooperative and told the complainant -2 that, the death of patient was due to COPD (Chronic Obstructive Pulmonary Disease).
3.         After 2 days, the Complainant-2, took to the attention of his friend towards the tablets which his wife was consuming. It was noticed that there were around 25 tablets of Heterezon and 20 tablets of Glynase. It came into surprise to Mr. Selvaraj that, his wife was not diabetic and because of consumption of tablet Glynase for 3 days, she suffered severe hypoglycemia and subsequently succumbed to death. He noticed the Batch No. CH8101 with the expiry date of 09.01.2001. The allegation was that the 2 tablets which were identical, were issued negligently by the unqualified lady pharmacist. Therefore, the hospital should have been very careful while dispensing the drugs. The Complainant produced literature on Hypoglycemia from Harrison’s Principals of Internal Medicines.
4.             Thus, in this case, instead of Tablets ‘Heterezon’ the patient was given Tablets ‘Glynase’. It is also contended that, at the time of emergency admission, on 12.02.2000, the OP-2/Doctor was not available for more than 2 hours, and case was managed by a lady doctor. The OP has not conducted any blood test. Also, the pharmacy was unlicensed. The OP-2 issued discharge summary after a long period, i.e. on 05.04.2000, which mentions that the spot test 110 mg was done on 12.02.2000. This was an afterthought and an interpolation. The OP-2 has not disclosed any test report or case-sheet to ascertain the levels of blood sugar, i.e. low or high. Therefore, alleging deficiency in service, the Complainant filed a complaint before this Commission and prayed for a compensation of Rs.22,00,000/- along with costs of Rs.10,000/- each to the Complainant No.-1 & 2 and Rs.1,00,000/- towards mental agony.

Defence:

5.           OP-1 & 2 contested the case and filed their written versions and affidavits. The OP-1 submits that the present Complaint of the Complainants is imaginary, with confounding thoughts, due to ignorance of medicine and treatment modalities. The OP-1 submitted that there is no evidence to show that this particular batch No.CH8101/ with manufacturing date-9/98 on tablet Glynase, was distributed by Sri Balaji Distributors and supplied to the dispensary of Trichy Speciality Hospitals. Also, the diabetic drugs are kept in a separate rack. Hence, the contention of the Complainants that the patient was given wrong medicine is false. The Complainants have misinterpreted the medical facts in an unscientific manner to tarnish the reputation of OP-2. Thus, the Complainants have embarked on an expedition of speculative litigation, which is liable to be dismissed.

Submissions and Findings:

6.           We have perused the evidence on record. The counsel for OP-1 submitted that mere allegations pertaining to the treatment of the patient does not prove that Trichy Speciality Hospital (OP-1) has fallen short of the professional standards, expected of it. She further submitted that during acute exacerbation of COPD, Dr. M. Shanmuvgavel treated the patient, the patient was provided the best nursing care, investigative and in-patient facilities during her stay in the hospital. On 13.02.2000, the patient was brought to OP-1 at 12 midnight. Dr. M. Shanmuvgavel reached the hospital only at 12.40 a.m. due to traffic congestion. Before his arrival, the Resident Medical Officer of OP-1 carried out all the emergency resuscitation measures, including Spot Glucose Test (to measure the blood glucose) as telephonically instructed by Dr. M. Shanmuvgavel. The blood glucose level was 110 mg%.  As the patient was unconscious with tachypnoeic and dyspneoic, also there was cyanosis, constriction of pupils, Dr. M. Raveedran, Anesthetist, was contacted since she needed urgent ventilation support, but in the meantime, the patient developed Cardio-Pulmonary arrest and she could not be revived in spite of all efforts by OP-2.

7.          The evidence on record show that the pharmacy/dispensary was dispensing drugs purchased by the doctors only to their patients and not to any outsiders and it was under the control of a qualified pharmacist. It is submitted that the above practice is in consonance with the provisions of the Code of Medical Ethics. (Chapter 6 Indian Medical Council (Professional conduct, Etiquette and ics, 2002).

“63. Running an open shop (Dispensing of Drugs and Appliances by Physicians)- A physician should not run an open shop for sale of medicine for dispensing prescriptions prescribed by doctors other than himself or for sale of medical or surgical appliances. It is not unethical for a physician to prescribe or supply drugs, remedies or appliances as long as prescribed by a physician or brought from the market for a patient should explicitly state the proprietary formulae as well as generic name of the drug.

8.          The evidence also revealed that, OP-2 furnished the required information and the cause of death and other medical documents on the written request of Branch Manager, LIC of India, Trichy, for settling the death claim of the patient, copies of the case sheets of the patient were handed over on 09.04.2000. It is also stated that on 05.04.2000, copies of 2 case sheets of the patient and discharge summary were handed over to Mr. Joseph, a person from LIC of India. Also, the OP has informed the Municipal Corporation, Trichy about the death of patient.

9.          We have gone through the Medical Book the Harrison’s Internal Medicine and the literature on Pharmaco-Kinetics of drugs Heterezon and Glynase. It is clear that, ‘Glynase’ is an anti-diabetic, oral hypoglycemic drug which can be given, up to maximum dose of 30mg per day. The effect of Tab Glynase starts within ½ hour of its consumption. If it is consumed by a non-diabetic or normal person, there will be severe hypo-glycemic effects. Whereas, in this case, the patient had consumed 3 tablets per day for 3 days. It is impossible to believe that a non-diabetic person had sustained the hypoglycemic effect, after consuming 3 tablets, per day. Her blood sugar would have fallen severely, i.e. below 20 to 30mg% on very first day and she would have suffered either from severe hypo-glycaemia or coma, on very first day. In this case, the patient was brought to OP-1, the hospital, on 3^rd day, in an unconscious state. At the same time, the blood Glucose (sugar) was performed by spot test which was confirmed as 110mg. Therefore, it was not a hypo-glycemic condition.

10.          Many questions have touched our mind, such as,

• Why the patient was not taken to the hospital on the very 1^st day i.e. 10.02.2009, itself?
• Why the Complainant-2 has not preserved and produced any samples of those tablets, for evidence?
• Why complainants did not lodge a FIR on the day, when he came to know about Tablet Glynase along with Tablet Heterezon?

11.        We agree that on 13.2.2000, the OP-2 reached hospital late by 40 minutes, but it is pertinent to note that, when the patient was brought to the hospital at 00 hrs., the on-duty resident doctor took telephonic instructions from OP-2 and examined the patient, and started the emergency treatment. Hence, we do not find any negligence on the part of OP. The death of the patient was due to seizure disorder with respiratory failure and the antecedent cause was hypoxic encephalopathy, COPD and GI bleeding.       12. In this case, it is pertinent to note that the patient-deceased (Solai) was not an illiterate. She was working as Assistant Administrative Officer in LIC; also, her husband was a prison constable. Therefore, they should be vigilant during purchase of drugs, both can understand English, thus they have purchased medicines, blindly. It was the bounden duty of them to check the medicines before or while leaving the pharmacy. Even otherwise, both have an option to show those medicines, either to the doctor or the staff nurse or any on-duty Assistant doctor in OP-1 hospital. Moreover, the patient should be prudent enough or alert while consuming medicines. Thus, in our view, the complainant-2 is shifting his own mistakes on the hospital/ OP-2. It is very unfortunate that, the patient who was an educated one, a responsible officer, purchased and consumed medicines, with blind eyes. Her death was not due to Hypoglycemic Coma. Also, we do not find any delay in issuing medical records to the complainant, after death of patient, as it is evident that, it was issued in time, to facilitate the death claim from LIC.

12.          If there is No cure, it is not negligence. If there is any mistake or mischance, it is the common tendency to blame the doctor for negligence. In our considered view, the burden of proof in an action for damages for negligence rests primarily on the complainant, whether there is any act of omission or commission, i.e. breach of duty resulting in the injury. The Bolam’s Test and also the Principle of Res Ipsa Loquitor are not applicable in this case. In our view without any element of negligence on the part of OP, we refrain from imposing any liability on them. This view dovetails from few authorities of Hon’ble Supreme Court In the case “Martin F. D’ souza vs. Mohd. Ishfaq”, 2009 CTJ 352 (Supreme Court) (CP) in which the Hon’ble Supreme Court was pleased to observe as under:-

“41. A medical practitioner is not liable to be held negligent simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another.”

 “49. When a patient dies of suffers some mishap, there is a tendency to blame the doctor for this. Things have gone wrong and, therefore, somebody must be punished for it. However, it is well known that even the best professionals what to say of the average professional, sometimes have failures. A lawyer cannot win every case in his professional career but surely he cannot be penalized for losing a case provided he appeared in it and made his submissions.”

 In  Malay Kumar Ganguly vs. Sukumar Mukherjee (Dr.) & Ors. III (2009) CPJ 17 (SC) it was held as under:

     “35. Charge of professional negligence on a medical person is a serious one

as it affects his professional status and reputation and as such the burden of proof would be more onerous. A doctor cannot be held negligent only because something has gone wrong. He has also cannot be held liable for mischance or misadventure or for an error of judgment in making a choice when two options are available. The mistake in diagnosis is not necessarily a negligent diagnosis.”  

 Similar view was taken by this commission in the First Appeal No. 1038 of 2000 “Pratap Singh vs. Sahib Nursing Home & Surgical Centre and others”

that a doctor no doubt can play havoc with the wife of another by medical negligence, but the doctor cannot be dubbed as negligent wherever the things go wrong because of God’s will or for other factors. Finding fault with the doctor without any evidence would not only defame the medical profession which is otherwise very noble but the society will also lose the compassion of the savior i.e. of the doctor who is considered next to God.

13. Therefore, on the basis of entire forgoing discussion, we find there is no force in the arguments made on behalf of complainant. This is not a case of medical negligence or deficiency in service at all. Hence, the complaint is dismissed. No order as to costs.