BIJAYA LAL BISWALAppella vs PURUSHOTTAM PANDA

THE above two appeals arise out of the common judgment, holding the doctor, appellant in Appeal No. 596 of 1997, liable for deficiency in service by causing medical negligence and awarding compensation of Rs. 50,000/- and cost of Rs. 200/-. THE other appeal is by the complainants being dissatisfied with the quantum of compensation awarded.

COMPLAINANTS case is, on 13.3.1996, at 7 p.m. Subrat Shankar Panda (hereinafter referred to as the deceased) who was the son, husband and father of complainants 1, 2 and 3 respectively, was bitten by a poisonous snake. The appellant was a Government Doctor posted at Ib Thermal Hospital. The deceased contacted him at his residence and informed him to have been bitten by a snake. Though the doctor prescribed certain injection, that is toxide, avil, etc., which were administered, yet having suspected a case of snake bite he neither advised for the prescribed treatment nor administered medicine, as a result of which the deceased developed restlessness and was then brought to Ib Thermal Hospital where he was declared dead around 10.30 p.m. It as further alleged that the deceased had paid Rs. 20/- towards professional fee of the doctor. 2.1. The appellant in the written version denied all facts alleged in the complaint petition. He denied having received any money. It was his case that as the deceased was a contractor of Ib Thermal and had acquaintance with the appellant and thus purely out of sympathetic consideration he treated him and the hospital being a Government Hospital, there was no question of charging any money, though at that very point of time private practice was allowed. So far as negligence part is concerned, he denied to have committed any negligence. The District Forum held that the deceased had paid the professional fee of Rs. 20/- and, therefore, he was a consumer. On considering the materials on record it held that the doctor was negligent. Heard Mr. P.K. Routray, learned Counsel for the doctor and Mr. S.K. Pattnaik, learned Counsel for the complainants. Perused the impugned order and the materials on record.

With regard to payment of the fees of Rs. 20/- the District Forum held that normally in case of a private practice by a Government doctor no receipt is usually granted. He has drawn a presumption that Government doctors generally practising beyond the hospital hours do accept fee but they do not grant any receipt. This is totally a wrong finding relating to the fact of payment of consideration. It is against law because a fact cannot be proved by way of presumption though at times inference can be drawn about a particular fact, but it would depend upon facts and circumstances of each case.

IN the present case the complainants advanced a case that while the deceased was taken to the house of the doctor he was found witnessing T.V. IN other words according to their own case, there was none else present at the time the deceased visited the appellant-doctor. IN the complaint petition the name of one Sitaram Sa has been mentioned that he carried the deceased in the cycle to the doctor-appellant. For reasons best known to them the said Sitaram Sa has not been examined nor any explanation had been offered for his non-examination. Therefore, it would have been proper on the part of the District Forum to draw an adverse inference for non-examination of such an important witness to both with regard to payment of fee as well as the advice given by the doctor for further treatment etc. Law is well-settled that pleadings by themselves do not prove a case. But facts are proved by evidence/materials on record. That apart, the finding by the District Forum with regard to the payment of fee is as follows : As such it is presumed the O.P. might have taken fees and the deceased Subrat Sh. Panda was a consumer who comes under the purview of Consumer Protection Act. Because of this presumption we do not accept the finding that in fact the complainants have been able to prove payment of consideration. Regarding the negligence on the part of the appellant, District Forum held that the appellant being a doctor and a medicine specialist had put a question mark on the prescription, but failed to give any advice on the prescription about the admission in the hospital for observation at every 30 minutes for 2 to 3 hours till clear symptoms appeared. Relying on the post-mortem report in which it was mentioned that the death was because of snake bite, the District Forum held that once it was a case of snake bite the appellant-doctor should have advised accordingly.

SECONDLY, it held that when the doctor found the case to be a snake bite and there was injury, he should have himself cleared the wound at the site which he mentioned a doubtful snake bite in his presence in the hospital or at his residence if possible, though the said time was not his duty hour. Thirdly it held that the doctor should have advised the deceased to go to the hospital. As regards this medical negligence, we may refer to the book Current Medical Diagnosis & In Treatment by Marcus A. Krupp and Milton J. Chatton, 1980 Edition, where at page 979 it is stated that in case of a person bitten by venom of poisonous snake and lizards, there would be local pain, thirst, profuse perspiration nausea, vomitting, stimulation followed by depression, local redness, swelling, extravasation of blood and collapse. Emergency measures suggested are that there should be immoblilisation of the patient and the bitten part immediately. Manipulation of the bitten area should be avoided except putting a rubber band, tourniquets above and below the site and transport the patient to medical facility for definite treatment. It is mentioned that if systematic signs of envenomation beyond nausea and vomitting are present, give 30-150 ML of specific antiserum intravenously after testing for serum sensivity.

ON going through the complaint petition, we do not find that when the appellant examined the deceased he found these symptoms of snake bite. The question mark after the word snake bite in the prescription of the doctor does indicate that the appellant entertained a doubt whether it was a case of snake bite. This was obvious because there was no positive symptom of snake bite, the way we have mentioned above. It was not known when and at what precise time he was bitten by snake. If we accept the case of the complainants that there was administration of injection as per the prescription of the appellant around 7.30 p.m., it is not known nor any materials have been placed that during this long period of 3 hours, the deceased at all developed these symptoms. If the deceased felt restlessness at his place, it would have been proper for the deceased to take him to the hospital straightaway. There was certainly some amount of delay in taking the deceased from his house to the hospital and this delay could not have been attributed to the doctor. As mentioned above, according to the medical opinion unless symptoms appeared, no antevenum drugs was to be administered.

THAT apart, we find the complainants in page 3 of the complaint petition have at 3 places mentioned that the doctor advised the deceased to take rest for sometime. It is not known whether this advice of the doctor was strictly followed because the medical theory speaks of total immobilisation of the patient as also the affected part. We do not accept the case of the complainants that the doctor was sure that the deceased was bitten by a snake. Normally a prudent man, particularly a doctor, would not put a question mark if he was so sure about the snake bite. Had he been sure about the deceased having been bitten by a poisonous snake, and he would not have taken the steps as suggested by the medical theory, then we would have held him liable for act of negligence. It was a case of doubt. Whatever treatment he had advised, it cannot be said to be wrong, then there is no question of holding the doctor liable for such medical negligence. The appellant was available on both the occasions at the first instance at his residence and at the second instance at the hospital. In absence of any material, it cannot be held that he committed any amount of delay in attending on both the occasions. Accordingly we allow the appeal and dismiss the complaint petition. For the same reason, there is no justification to enhance the amount of compensation. Complainants appeal is dismissed. Ordered accordingly.