NATIONAL CONSUMER DISPUTES
REDRESSAL COMMISSION, NEW DELHI
Hon’ble Mr. Justice M.B. Shah, President; Mrs. Rajyalakshmi Rao and
Mr. Justice K.S. Gupta, Members
DR. KUNAL SAHA—Complainant
versus
DR. SUKUMAR MUKHERJEE & ORS.—Opposite Parties
Original Petition No. 240 of 1999—Decided on 1.6.2006

Headnote:(i)Consumer Protection Act, 1986 - Sections 2(1)(g), 14 - Indian Penal Code, 1860 - Section 304-A - Medical negligence - Jurisdiction of Courts or Consumer Fora to sit in appeal against the decision taken by expert doctors with regard to administration of a particular dose of medicine - Tests for determining deficiency-in-service - Principles for determining deficiency in medical service - Whether the courts or the Consumer Fora can sit in appeal against the decision taken by the expert doctors with regard to administration of a particular dose of medicine - (No) - Jurisdiction of Consumer Fora would be limited in case of apparent deficiency in prescribing dose of medicine.

       Held: Well-laid down tests for determining deficiency in service are -whether there is failure to act in accordance with standard of a reasonable competent medical practitioner?

       (i)Whether there was exercise of reasonable degree of care?

       (ii)The degree of standard or reasonable care varies in each case depending upon expertise of medical man and the circumstances of each case.(Para 32)

       If there are alternative procedures of treatment and if a doctor adopts one of them and conducts the same with due care and caution then no negligence can be attributed towards him.(Para 35)

       In substance, for establishing negligence or deficiency in service there must be sufficient evidence that a doctor or a hospital has not taken reasonable care while treating the patient. Reasonable care in discharge of duties by the hospital and doctors varies from case to case and expertise expected on the subject which a doctor of a hospital has undertaken. Courts would be slow in attributing negligence on the part of the doctor if he has performed his duties to the best of his ability with due care and caution.(Para 36)

       As per the settled law discussed above, deficiency in medical negligence is to be judged on the following principles:

       (i)It is to be remembered that a doctor or a surgeon does not undertake that he will positively cure a patient nor does he undertake to use the highest possible degree of skill, as there may be persons more learned and skilled than himself, but he definitely undertakes to use a fair, reasonable and competent degree of skill.

       (ii)It is to be stated that if there are several modes of treatment and if a doctor adopts one of them and conducts the same with due care and caution then no negligence can be attributed towards him;

       (iii)Second, In the case of medical men, negligence means failure to act in accordance with the standards of reasonably competent medical men at the time;

       (iv)A medical practitioner is expected to exercise a reasonable degree of care and exercise skill and knowledge which he possess;

       (v)No doubt, failure to use due skill in diagnosis with the result that wrong treatment is given is negligence;

       (vi)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.(Para 61)

       (ii)Consumer Protection Act, 1986 - Sections 2(1)(g), 14 - Indian Penal Code, 1860 - Section 304-A - Deficiency in Medical Service - Death of patient suffering from toxic Epidermal Necrolysis (TEN) - Allegations of giving overdose of injection Depo-Medrol, steroid, affecting immunity of the patient - Complainant husband of patient, himself a Doctor (M.D., Ph.D) in USA, came to India alongwith his wife on 24-3-1998 enroute calcutta stopping at Mumbai - On arriving at Calcutta, his wife developed a sore throat with some palpable neck glands - She developed high grade fever with skin rashes - Complainant contacted O.P.1 on 26-4-1998 - Nothing on record to indicate as to what type of disease the patient was suffering from 3-4-1998 and what treatment was given by the complainant, who himself is an M.D., Ph.D. - Only on 7-5-1998 when the condition of the patient deteriorated, the complainant contacted many doctors - On basis of blood and clinical examination by O.P.1, steroid depomedrol injection was prescribed - Complainant contacted two Dermatologists - Patient was diagnosed as suffering from TEN and same treatment was prescribed - Patient died on 28-5-1998 in the hospital - Complainant issued notices to 26 persons including doctors, hospital management etc. - Criminal complaint was filed against OPs. 1, 2 and 3 for offence u/s. 304-A, IPC - Consumer complaint was filed against 19 opp. parties claiming compensation of Rs. 77,76,73,500/- for deficiency in service rendered by doctors and the hospital - Whether there was any deficiency on the part of opp. party Doctors 1, 2, 3, 5 and 6 in rendering service - (No)

       Held: (a)From the aforesaid treatment chart quoted above it would be difficult to arrive at the conclusion that there was negligence or deficiency in service on the part of Dr. Mukherjee, Opposite Party No. 1, because, even Dr. A.K. Ghoshal, Dermatologist, who had examined Mrs. Anuradah on 11th May diagnosed the disease as TEN and prescribed the same treatment.

       (b)It appears that much of the difficulty has arisen because Dr.Kunal Saha, being a qualified medical practitioner, may be a researcher as contended by him, has not produced on record what type of treatment was given by him to Mrs. Anuradha from 1st April, 1998 to 7th May, 1998 despite her condition was deteriorating day by day and that she was suffering from high fever with skin rash and enlarged neck glands.

       (c)It appears that the complaint is directed against the opposite parties solely on disagreement in the pattern of treatment rendered by Dr.Mukherjee and others after the death of Mrs.Anuradha.

       (d)From the medical literature for the treatment of TEN, as quoted above, there is no specific treatment for TEN, only supportive treatment is provided. Further, from the opinion of Prof. Dr.Peter Fritsch, Chairman, Department of Dermatology, University of Innsbruck, Austria, which the Complainant has produced, it is clear that with regard to use of steroid in treating TEN there is a division of opinion with the medical practitioners. He has specifically stated that: "As is well known, the scientific community is divided over the issue if corticosteroids should be used for the treatment of toxic epidermal necrolysis or not"

       (e)Error of judgment in the process of diagnosis does not amount deficiency in service, as the disease TEN is a rare one occurring 1 to 1.3 per million per year and that the most common complication of TEN is bacterial superinfection. As stated by Dr. Peter, no attempts were obviously undertaken to identify the possible infectious origin of the fever which was present from May, 12 onwards.

       (f)From the record it is apparent that the patient was never in absolute care of Dr.Mukherjee ( O.P.No.1) or Dr.Baidyanath Halder (O.P.No.2) and Dr.Abani Roy Chowdhury (O.P.No.3), because from time to time she was treated by a whole host of doctors as suggested by the complainant, including the complainant. It is pointed out that Dr. Baidyanath Halder (O.P. No. 2) had examined the patient only on 12.5.1998 yet he has been made opposite party unnecessarily. Even before Dr. Baidyanath Halder examined the deceased, Dr. Ghoshal diagnosed the disease as TEN.

       It is also contended that Dr.Abani Roy Chowdhury, (OP.No.3) never examined the patient, but from the records it appears that his name is mentioned in certain prescription. Therefore, he is added as party respondent.

       (e)From the history of case, as stated above, i.e. from 1st April, 1998 Dr.Kunal Saha (Complainant) himself was treating his wife, administering a variety of drugs which were not prescribed by the opposite parties or other doctors. This is further corroborated by the medical record of the Bombay Hospital produced by the Complainant, wherein Dr. U.D. Wadia, who was incharge, has specifically stated that he had great problems with the husband and brother-in-law (brother of the deceaseds) and that it was with great difficulty that he could control himself. When presented with his arrogance, he compromised merely and solely for the patients sake. He also instructed the resident and nursing staff to keep peace for obvious reasons for the patients sake. This leaves no doubt that the Complainant who himself is a Doctor has created all problems in giving treatment to the deceased. He called a number of doctors to examine the deceased and created problem in her treatment.

       (f).Further, presuming what the complainant says is correct, but in this case, Mrs. Anuradha developed a low grade fever on 1.4.98. On 17.4.1998 she developed high fever followed by skin rash on 25.4.1998. It was also admitted that there was worsening of the skin rash after a meal at Chinese restaurant and for this complainant had not disclosed what treatment was given to Mrs.Anuradha prior to 7th May. If drug reaction is the cause of TEN, then it is quite possible that the treatment which was given by the complainant from 1st April, onwards and also a Chinese meal, might be the cause of TEN.

       (g).Finally, even the mortality rate as stated in the Review and Report of the Successful use of biobrane for early wound coverage, was between 25 to 70% and there was no reliable test to implicate a specific drug which causes TEN. With regard to the law as discussed above, a Doctor does not undertake that he will positively cure a patient, nor does he undertake to use the highest possible degree of skill as there may be persons more learned and skilled than himself. In the present case, Dr. Kukherjee is M.D. and not dermatologist. His diagnosis may be erroneous that the deceased was suffering from Allergic vasculitis but that would not mean he has not acted with reasonable degree of skill.(Para 62)

       Finally, it can be held that undisputedly administration of overdose of steroids is not the cause of TEN. The only contention is that the overdose of steroids has affected the immunity of the deceased and that has resulted in the death of the patient. It is also contended that supportive I.V. fluids were not administered and that has further reduced immunity. It is to be stated that, on occasions, such high dose of steroids is administered for saving the life. It is also to be stated that for the cause of death post-mortem report is not produced on record, as the same was not carried out at the behest of the complainant.(Para 69)

       Complainant is a Doctor. Knowing fully well that there is no burn ward in the AMRI Hospital he got Mrs. Anuradha admitted in that hospital. There is no burn ward even in the Breach Candy Hospital. Therefore, his say that there was negligence on the part of the Hospital or its doctors in admitting Mrs.Anuradha in the AMRI Hospital, and, therefore, her treatment was affected is totally baseless. The complainant chose the Hospital for treating his wife. Since the case was diagnosed as TEN for ensuring better aseptic care, the patient was shifted on 11 5.1998 to Cabin No.430, theVIP cabin in a corner of AMRI. This room no.43O was kept fully isolated, temperature was controlled, access to this room was restricted, and sterilisation in several form were maintained. Even the consultant/medical staff or the nursing staff who were attending the patient were required to put on protective clothings (sterilised gloves, aprons etc.). No other patient was kept in the same room to prevent all chances of cross-infection.(Para 104)

       Finally, we would say that the complainant has first issued notice against 27 persons including the doctors who had treated at Bombay Hospital. Thereafter, we do not know for what reasons he has withdrawn the complaint against the doctors who had treated at the Breach Candy Hospital. In criminal cases also, at present, they are acquitted.(Para 107)

       In the result, we reiterate that doctors or surgeons do not undertake that they will positively cure a patient. There may be occasions beyond the control of the medical practitioner to cure the patients. From the record, it would be difficult to arrive at the conclusion that the injection Depo-Medrol prescribed by Dr.Mukherjee was of such excessive dose that it would amount to deficiency in service by him which was his clinical assessment. Thereafter, with regard to the alleged deficiency in the treatment given to Mrs. Anuradha by Opposite Party Doctors 2, 3, 5 and 6, there is no substance. The contention against the hospital that it was not having burns-ward, and, therefore, the deceased suffered is also without substance. Hence, this complaint is dismissed.(Para 108)

       Result : Complaint dismissed.

       IMPORTANT POINTS

       1.The courts or the consumer fora cannot sit in appeal against the decision taken by the expert doctors with regard to administration of a particular dose of medicine.

       2.If there are several modes of treatment and if a doctor adopts one of them and conducts the same with due care and caution then no negligence can be attributed towards him.