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2009(4) CPR 307 (NC)
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION,
NEW DELHI
Ashok Bhan, President and B.K. Taimni, Member
Prabha Shankar Ojha —Petitioner
versus
Dr. Neelmani Rai —Respondent
Revision Petition No. 2436 of 2005
Decided on 4..11.2009
Counsel for the Parties:
For the Petitioner:Mr. Rajesh Chadha, Advocate.
For the Respondent:Mr. L.K. Singh, Advocate.
IMPORTANT POINT
Mere difference of opinion in treatment of a disease does not prove medical negligence.
Headnote:(i) Consumer Protection Act, 1986—Sections 2(1)(g), 2(1)(o), 14(1)(d), 17 and 21—Medical negligence—Wrong line of treatment leading to severe medical complications—Complaint—Dismissed by State Commission, reversing order of District Forum whereby respondent was directed to pay to petitioner/complainant a sum of Rs. 19,47,000—Onus of proof is on the party who alleges medical negligence—Mere statement of party is not enough—Petitioner failed to produce any expert evidence to show that line of treatment adopted by respondent was not in line with reasonable body of medical practitioner—Respondent doctor had taken due care and caution—He was not guilty of causing damage to health of petitioner—Impugned order affirmed—Revision petition dismissed. (Paras 8 to 11)
(ii) Torts—Medical negligence—Mere difference of opinion in adopting different line of treatment does not prove medical negligence—In case, the doctor brings in his task of providing medicine a reasonable degree of knowledge and skill, medical practitioner cannot be held guilty for medical negligence only because some one else of better skill and knowledge had prescribed different treatment. (Para 10)
Ashok Bhan, President—Petitioner herein, who was the complainant before the District Consumer Disputes Redressal Forum, Buxer (hereinafter referred to as ‘the District Forum’ for short), has filed the present revision petition against order dated 23.5.2005 passed by the Bihar State Consumer Disputes Redressal Commission, Patna (hereinafter referred to as ‘the State Commission’ for short) whereby and whereunder, the State Commission has set aside the order passed by the District Forum in complaint No. 95 of 2004. District Forum had awarded a sum of Rs.19,47,000 to the petitioner to be paid by the respondent for medical negligence.
2. Briefly stated, the facts of the case are:
Petitioner was suffering from fever and bodyache for the last 3-4 days and he consulted the respondent who is a private practitioner at Buxer town on 8.6.2004. Respondent prescribed injection Larigo (Chloroquine) 4 CC IM for 3 days. The condition of the patient did not improve and, on 11.6.2004, respondent prescribed pathological test of blood for malaria parasite and Widal Test for Typhoid, which on report dated 11.6.2004, showed M.P. (Malaria Parasite) not seen but Widal Test was found to be positive. After looking at the report, respondent prescribed Paraxin 500 mg thrice for 5 days (Chloramphenicol) but when the condition further deteriorated, the respondent prescribed Dexona and Perperinorm with Glucon D and Calpol. Still the condition of the patient did not improve and the respondent again got examination of blood test done for Malaria Parasite and Serum Bililirubin on 18.6.2004. The Report showed Malaria Parasite negative and Serum Bililirubin normal which again indicated that it was neither a case of Malaria nor Jaundice but still the Opposite Party/respondent continued his treatment for Malaria by giving another injection by brand name Larither (Artemether) meant for Chloroquine resistant Malaria. According to the petitioner in spite of pathological report that the petitioner was suffering from Typhoid without any positive M.P. (Malaria Parasite) test, prescribed treatment for Malaria by giving injection Larither (Artemether) side-by-side. Respondent also prescribed Paraxin for treatment of Typhoid without withdrawing the medicine for Malaria. Overdose of Anti-Malaria Drugs produced Arrhythmias (Cardiac and Respiratory Problem) and the petitioner was immediately rushed to Varanasi at Ramkrishna Mission Home of Service, where the petitioner was treated for Enteric Fever (Typhoid) on conservative line and petitioner’s life was saved. That from the treatment given by Ramkrishna Mission Home of Service, Varanasi, it is clear that respondent did not take due care in giving treatment to the petitioner inasmuch as it completely overlooked the entire Pathological Report and continued giving Anti-Malia drug to the petitioner though there was no indication of Malaria as is evident from the Pathological Report. Petitioner, thereafter, filed a complaint before the District Forum against the respondent claiming a sum of Rs.19,47,000 under various heads.
3. Respondent, on being noticed, appeared before the District Forum and filed her written statement. Respondent, in the written statement, took the plea of confirming the treatment of Malaria. It was contended that simply because some other doctor might have prescribed some other medicines cannot be said to be negligent act and deficiency in service on his part for want of care. That there was not even iota of evidence of medical expert or medical practitioner in support of the contention that respondent did not exercise due care and caution in giving treatment to the petitioner or was negligent in any other way. There is no evidence to show that complainant suffered due to the drugs prescribed by the respondent. That in the light of Annexure I, II, III and IV of the written statement and the clinical examination of the patient, it is clear that the respondent had rightly prescribed the drugs for Mal
