IMPORTANT POINT
Skill of medical practitioners differs from doctor to doctor.

Dr. S.M. Kantikar, Member—The brief facts relevant to dispose of this appeal are:

The Complainant (C-1), Dr. P. K. Palanisamy’s son Mr. K. P. Mohanavelu about 39 years of age, (since deceased herein ‘the patient’) suffered fever and on 23.8.2010 approached in the OPD at Sakthi Hospital & Research Centre/OP 1. Again, he got fever 102° F, had gone to same hospital on 3.9.2010. Dr. Shivakumar/ OP 2 prescribed antimalarial drugs. There was no improvement. On 5.9.2010 patient had fever of 101º F and cough with blood, he was admitted in the ICU at about 1.16 p.m. by Dr. Shivakumar/OP 2 and advised Typhoid test only instead of test for Swine Flu (H1N1). OP-2 failed to take proper precaution, failed to get a simple swab test for Swine Flu (H1N1). The blood test results were not procured within time. The OP made false entries in the progress sheet. The progress sheet did not show any name and signature of the consulting doctors and staff nurse present in the ICU. The patient was also suffering from ARDS (Acute Respiratory Distress Syndrome). Due to lethargy of nursing staff, the Chest Physician Dr. Nalini Jayathi attended the patient after delay of 9 hours. Patient was put on Ventilator after considerable delay. The act was against the MCI Code of Ethics 3.3, i.e. Punctuality in Consultation. On 7.9.2010, at about 10.30 PM, the patient was shifted to Government Hospital, Chennai, with the discharge summery showing final diagnosis as Enteric fever (Typhoid Fever). It was misdiagnosis. At the time of discharge, OP 1 took false endorsement from the 2nd wife of patient i.e. Smt. S. Deeparani (OP No. 4) as “I take my husband Mr. K. P. Mohanavelu in a good (healthy) condition.” The patient ultimately died on 10.9.2010. Therefore, considering overall sequence of events, it was alleged that the OPs were negligent in diagnosis and treatment of the patient, also violated MCI Code of ethics 3.1, 3.2 and 3.3. The Complainants (Parents and son of deceased) filed a complaint before the State Commission at Chennai for compensation of Rs.65,41,210/-

2. After considering the pleadings and evidence, the State Commission dismissed the complaint. Therefore, aggrieved by said impugned order, the Complainants preferred this appeal.

3. We have heard learned counsel for both the parties. Learned counsel for the complainants vehemently argued that the State Commission erroneously dismissed the complaint by simply relying on version of letter sent by the second wife of deceased to the State Commission. It was a forged letter. The OPs 1 to 3 in order to escape from the medical negligence, intentionally took endorsement from the patient’s second wife even after H1N1 was diagnosed at 8.20 p.m. The counsel relied upon the judgment of Hon’ble Supreme Court in V. Kishan Rao V. Nikhil Super Specialty Hospital & another (2010) 5 SCC 513. He submitted that, the principle of Res Ipsa Loquitter is applicable in the instant case. The patient was taken to Government Hospital in serious condition.

4. Learned counsel for OP argued that, it was not the case of failure to diagnose Swine Flu. The OP/hospital and doctors therein treated the patient with full caution and care. The counsel brought our attention to the guidelines prescribed by WHO and Ministry of Health and Family Welfare, on Categorization of influenza A-H1N1 cases during screening for home isolation, testing treatment, and hospitalization (Revised on 5.10.09). It is further argued that in the first instance, patient came to the OP with the history of cough and fever. There was no complaint of sore throat. As per prescribed guidelines, the patient came under category ‘A’ and ‘B’. As the patient did not fall under Category of ‘C’. Therefore, at that point, there was no need for the testing of H1N1 and immediate hospitalization. It is pertinent to note that patient was admitted on 5.9.2010, it was short stay and on 7.9.2010, all the tests were performed.

5. In order to appreciate the contention of the appellant