B.K. GHOSH vs P. MAULICK

THIS is a complaint filed under Section 17 of the C.P. Act by Mr. B.K. Ghosh against Dr. P. Maulick on the following allegations. The complainant''s wife Mrs. Kaberi Ghosh who was suffering from rheumatoid arthritis since 1993 was taken to the O.P.-doctor for treatment for the first time in May, 1993. The O.P. after examining her prescribed certain pathological and clinical tests and after reports of such tests were available he prescribed a medicine called Myocrisin 10 mg. in 0.5 ml. at the first instance on 9th June, 1993 and the patient was directed to continue that medicine upto 26th of that month. On 29th September, 1994 the O.P. told her to stop Myocrisin since there had been disorientation of eye-balls of the patient and he advised her to consult some eye specialists. Subsequently on 6.2.1996 the patient, Mrs. Ghosh, contacted the O.P. again being down with acute pain to know the procedure to be followed to combat her rheumatoid arthritis. The O.P. after examining her this time prescribed Imuran tablets without holding any prior investigation or test. As per this prescription the patient took 17 Imuran tablets (50 mg.) and immediately thereafter she had "allopacia" i.e., complete hair loss on her head and she had to be urgently hospitalised on 4th March, 1996. Moreover due to total unbalance of R.B.C. and W.B.C. counts in her blood as a result of taking this medicine she had to be put on blood transfusion. At this time Dr. R.N. Ghosh, a reputed doctor, held the bone marrow test on her and increased number of plasma cells were detected in her blood. Since then the patient became completely bed ridden and underwent extreme mental trauma with acute type of physical discomfort. Finding no other way she had to consult several experts and she also wrote to the Secretary, british Medical Association, London to obtained the details regarding Myocrisin and Imuran. She has come to know that the sufferings which she was to undergo was due to the side effect of the above two medicines which she took as per the advice of the O.P.-Doctor. She recently turned to be a mental patient and was under treatment under a psychiatrist named Dr. Dhirendra Nath Nandi. From the letter she received from the above mentioned medical expert regarding the side effects of those medicines it was clear that the O.P. prescribed those drugs in an irresponsible manner without knowing their implications and this is an index of gross negligence on the part of the O.P.

IT is the further contention of the complainant that the O.P.-Doctor was guilty of medical negligence because, (1) he failed to use reasonable degree of care; (2) he made error of judgment while treating the patient; and (3) he made great mistake in prescribing the above mentioned medicines without knowing their side effects. He should be held to be negligence because he failed to display reasonable skill and care for the safety of the patient. Hence the complainant being the husband of that patient has filed this complaint claiming compensation to the tune of Rs. 6,00,000/- (six lakhs) as shown under the Schedule-A of the complaint for the health hazards and loss of mental equilibrium suffered by the patient. The O.P. has contested the case by filing a written objection denying the material allegations of the complaint and contending inter alia as follows.

Admittedly the patient Mrs. Kaberi Ghosh was treated by the O.P. and he prescribed the medicines Myocrisin and Imuran (50 mg.) as alleged and she was suffering from acute rheumatoid arthritis. Myocrisin is usually prescribed by the physicians for treatment of such a disease and allopacia i.e., complete hair loss may be the direct effect of the disease or the medicine prescribed for the treatment of the disease. But the allegation of the complainant is not correct that as a result of taking such a medicine there occurs any imbalance in the R.B.C. and W.B.C. counts of the patient''s blood. By applying the medicine for treating acute rheumatoid arthritis the O.P. did not commit any mistake. The suffering of the petitioner''s wife had no nexus with the treatment rendered to her or with the medicine prescribed by the O.P. and taken by her. So far as the medicine Imuran is concerned, it is an admitted position that it is generally prescribed by the physician for treatment of rheumatoid arthritis and the medicine is internationally accepted though it may have some side effects. It is very important to see that the prescription dated 29th September, 1994 shows that Myocrisin was stopped and the prescription dated 6th February, 1996 reveals that Imuran 50 mg. @ one tablet in the morning was prescribed. It is conspicuous to note that after the passage of about one and half years from that date, 29th September 1995, the patient came to the O.P. on 6th February, 1996 and she did not disclose the nature of treatment she had received during this long interval. She might have consulted other physicians during this time and the side effect which she is now complaining of might have been the result of such medicines as might have been prescribed by such doctors. She is not disclosing a clear picture with regard to this long gap.

IT is next contended by the O.P. that the literature on Imuran suggests that it is used as an Immuno suppressant antimetabolic either alone or with other agents and therapeutic effects may be evident only after weeks or months. Imuran has been used with clinical benefit in a patient suffering from severe rhemuatoid arthorities and seven other diseases as mentioned in the said literature. The complainant, according to the learned Advocate for the respondent, has failed to show that necessary tests are mandatory before Imuran is prescribed although it is the main allegation of the complainant that the O.P., Dr. Maulick, prescribed this medicine, namely, Imuran, without holding necessary tests. The literature on the subject nowhere points out that Imuran tablet cannot be prescribed before holding necessary tests. But such contention to our mind is not impressive. From the medicine literature of this medicine Imuran (vide the medical insert being forwarded by the manufacturer company, "Glaxo Welcome") that there are potential hazard in using Imuran which should be prescribed only if the patient can be adequately monitored for toxic effect throughout the principle of therapy and complete blood counts including platelets should be performed weekly at the initial stage and frequency may be reduced to one month later in the therapy. To this the O.P. gives no reply either in his affidavit or during his argument. It is also practically and admitted position that the O.P. did not hold any test before prescribing this medicine, Imuran, to the patient although the experts'' opinion shows that before applying such a medicine such tests are to be held. The manufacturer company of this medicine "Glaxo Welcome" wrote a letter to the O.P. himself stating that in the interest of patient''s safety the company was under an obligation to maintain close surveillance of its products during the course of clinical practice and they had responsibilities to notify the regulatory authorities and in order to make an evaluation of the effect of the medicine, Imuran, on human beings particularly in the context of a complaint received from B.K. Ghosh (complainant of this case) that his wife after taking this medicine experienced loss of hair and bone marrow suppression they were asking Dr. Maulick to provide them with certain information which included information on Hematological prior to receiving azathioprine, where the patient had any previous history of haematological abnormalities, serial haematological results, details of concurrent and recent past therapy and outcome of the bone marrow suppression in relation to the withdrawal of athioprine and Myocrisin. Besides this, the head of the Department of the British Medical Association, Dr. Stellar Lawry has written a letter to the petitioner in response to the latter''s query and that letter dated 21.3.1996 has been annexed with the petition of complaint (vide page 73 of the paper book). In this letter it has been affirmed that the hair-loss and bone marrow suppression are the known side effects of the medicine Imuran. The medical literature which we have already referred to above and which has been placed before us by the complainant as a treatise of medicine (Annexures A and B) having been received through electronic media further contain the instructions that a doctor ought to hold hyper sensitivity tests before giving such a strong medicine. From the side of the O.Ps. nothing has been adduced by way of countering such expert opinion as regards the procedure for applying this medicine, Imuran, when the undisputed position appears to be that no such tests had been held before prescribing such a medicine to the patient of this case.

IT has been contended by Ashok Mukherjee, the learned Advocate for the O.P., that holding of any such tests is not mandatory. But in our view the question whether such tests is mandatory or not as per theories is not as important as the question as to what would be the probable side effects of such a medicine being taken by a patient in case it is prescribed for her without ascertaining by means of the required tests as to whether her physical condition was capable of bearing the impact of the side effects of such a medicine. The O.P. certainly displayed total lack of alertness towards such an aspect of the matter and in little carelessness went on applying such a medicine with is virulent effect on the constitution of the patient. IT has been faintly argued by Mr. Mukherjee that it is not fully correct to say that the O.P. did not hold any tests, since he ordered a number of tests when he found that by applying the medicine myocrisin, no satisfactory results were obtained and after holding those tests and seeing the result of such tests he applied the medicine Imuran. But this is not factually correct. From the prescription dated 7.5.1993 and 24.5.1993 (vide pages 7 and 8 of the paper book) it appears that he directed certain tests of urine and blood of the patient, but such tests are of no avail, because the medicine Imuran was prescribed long after, that is, on 6.2.1996 (vide page 10 of the paper book). So such tests palpably have nothing to bear upon the prescription of the medicine, Imuran. When Mr. Mukherjee''s attention was drawn to the contents of the medicine-literature of Imuran where there has been a heading under the style "Precaution and Warnings" regarding application of the medicine Imuran, his answer was that although in the prescription no such precautionary measure was taken in the form of tests, such precautions were not mandatory and particularly in this case where he had no chance of seeing the adverse effect of the medicine he prescribed on the physic of the patient, he had nothing to do. According to the O.P., after applying the medicine the doctor should assess whether there is any adverse effect of this medicine on the body of the patient and since here he did not get any scope to do that for the reason that the patient did not appear to him for a long time thereafter, he has no responsibility in the matter. But we are unable to accept such a proposition. IT is a solemn and bounden duty of a doctor to first ensure that the constitution of the patient is strong enough to suffer the side effects of the medicine like Imuran before he applies it by holding required tests. IT is useless to see the adverse effect after applying the medicine when the mischief is already done. It is not disputed that the patient did not suffer any hair loss or bone marrow suppression as alleged. The case of the O.P. is that there is no proof from the side of the complaint that such damages or hazards were the result of application of this medicine. He has put the question whether there is anything to show that such adverse effects were not due to the medical treatment which the patient received at other hospital or from other doctors and to that effect there is no expert''s evidence. It is not denied or disputed that the patient had suffered hair loss and bone marrow suppression. It is also not the case of the O.P. that such medicines were not taken by the patient. When it is an admitted and established position (vide the expert opinion already discussed above) that loss of hair and bone marrow suppression is a result of taking Imuran, in the absence of sufficient proof that the patient suffered such effects due to taking any other medicine it must be held that these adverse effects the patient suffered in consequence of her taking Imuran. In view of the above reason we are constrained to hold that the O.P. having applied the medicine Imuran to the patient without holding any prior test to ascertain her findings to take such medicine certainly committed an act of gross negligence and this must be treated as an instance of deficiency in service on his part for which he should be held liable to compensate the loss suffered by the patient.

THE complainant has claimed a sum of Rs. 5,00,000/- (five lakhs) as compensation on account of such medicines being prescribed without knowing its side effects and Rs. 1,00,000/- (one lakh) on account of deficiency in service. Be that as it may, since there is no quantification of such a claim which appears to us to be inflated, we are of the opinion that a sum of Rs. 25,000/- (twenty five thousand), would be the justified amount on account of compensation for the loss suffered by the patient. Accordingly we allow the complaint in part on contest with cost of Rs. 1,000/- (one thousand). THE O.P. is directed to pay a sum of Rs. 25,000/- (twenty-five thousand) in favour of the complainant within 60 days from this date. Complaint partly allowed.