The burden of proof in an action for damages for negligence rests primarily on the complainant, and medical professionals cannot be held liable for mischance or misadventure.

ORDER

Dr. S.M. Kantikar, Member -The Complaint was filed by the Consumer Protection Council, Tamil Nadu, Tiruchirapalli (Complaint No. 1) on behalf of the 2nd 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 of 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 8.2.2000, 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 10.2.2000, 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 12.2.2000, 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 1.15 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 9.1.2001. 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 Principles 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 12.2.2000, 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 5.4.2000, which mentions that the spot test 110 mg was done on 12.2.2000. 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 Nos. -1 and 2 and Rs. 1,00,000 towards mental agony.

Defence:

5. OPs-1 and 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. GH8101/with manufacturing date-9/98 on tablet Glynase, was distributed by Sri Balaji Distributors and supplied to the dispensary of T