Dr. R.S. Jangid vs Shubham & Anr

Dr. S.M. Kantikar, J

The dispute relates to alleged medical negligence wherein the complainant master Shubham suffered an injury in his left leg due to administration of intramuscular injection by the opposite party no. 1 - Dr. R. S. Jangid.

This revision petition has been filed under section 21(b) of the Consumer Protection Act, 1986, against the impugned Order dated 05.10.2016 in appeal No. 1154 of 2010 passed by the State Commission, which dismissed the appeal and the order dated 10.05.2010 passed by the District Forum, Sikar in Consumer Complaint No.188/08, was upheld.

Brief facts:

The complainant - Shubham, a minor (7 yrs of age) filed a complaint through his guardian-father. The complainant Shubham (here-in-after referred as 'the patient') suffered a sudden stomach pain. He approached Dr. R. S. Jangid - opposite party no. 1 on 06.10.2007 who advised an injection to be administered by the opposite party no. 2, Mr. Javed Kasai. The opposite party no. 2 administrated the intramuscular (IM) injection on the left gluteal region of the patient. Thereafter, the patient's leg became numb. The patient was taken to Dr. R. S. Jangid, opposite party no. 1 several times, but he intentionally ignored the patient and no satisfactory explanation was given. However, on 09.10.2007, opposite party no. 1 admitted his negligence and asked the complainant to consult some Neurologist in Jaipur. Accordingly, on 14.10.2007, the patient was taken to Dr. B.L. Kumawat, a neurologist at S.M.S. Hospital where other neuro specialists also treated the patient but all in vain. The patient became permanently disabled. Due to the complainant's inability to walk, he was deprived of his education.

Being aggrieved, the complainant filed a consumer complaint before District Forum,Sikar against the opposite parties praying compensation of Rs.5 lakh towards medical expenses, loss of education and Rs. 5 lakh for physical and mental agony.

The opposite party no. 1 - doctor resisted the complaint by filing a written version. He contended that as he was a govt. servant, no consultation charges were taken. The opposite party no. 2 was never employed as a compounder under him and no injection was administered to the patient. Moreover, the witnesses mentioned by the complainant were for creating false evidence. The opposite party no. 2 did not appear despite service.

On the basis of pleadings and evidence, the District Forum held opposite party no. 1 liable for medical negligence and observed as:

"Thus the various slips of doctors of the S.M.S. Hospitals it is certified that the Complainant is showing/telling to the doctors continuously that the condition of leg of Shubham became after administering the interamscularam injection which has been referred in all the slips. Therefore it cannot be presumed that Non-Complainant No.-1 doctors R. S. Jangid had not administered any injection to Shubham. Therefore the come to this conclusion that the Non-Complainant No.-1 Shri Jangid has administered the interamscularam injection to Shubham and before administering the injection he did not make any investigation about the reaction of injection and not mentioned in his slip."

The District Forum directed opposite party no. 1 to pay Rs.1 lakh for medical negligence and medical treatment and further Rs.1 lakh for causing permanent disability of the patient.

Being aggrieved, the opposite party no. 1 filed an appeal before the State Commission. The State Commission after appraisal, dismissed the appeal. Against the impugned order the opposite party no. 1 filed the instant revision petition.

Heard the learned counsels for Petitioner / Opposite party No1 and the Respondent / Complainant. The Respondent No.2 / opposite party no. 2 is proceeded against ex-parte. Learned counsel for the petitioner vehemently argued that the petitioner being a government doctor did not charge any fee and would not come under the ambit of the Consumer Protection Act, 1986. The doctor did not administer any injection to the patient. Prescription slip dated 06.10.2007 did not show any reference of the said injection. Learned counsel for the respondent - complainant narrated the facts of case and asserted that there was negligence on the part of opposite parties no. 1 and 2 in administering a wrong medicine in a wrong manner due to which the patient became permanently disabled.

For holistic adjudication of the case, record from the District Forum was requisitioned. We have perused the medical record of S.M.S. Hospital wherein the patient was examined by the specialist. We gave our thoughtful consideration to the arguments advanced by learned counsel for both the parties. It is evident that the patient's symptom of pain in his left leg started after administration of intramuscular (IM) injection. From the prescription of the opposite party no.1, it is evident that the patient had approached him for pain in his left leg after administration of the injection. Thereafter, neurobion forte tablets (neural supplement) were prescribed. The medical record shows that the patient was examined by a few specialists at Jaipur. On 14.10.2007 Dr. B.L. Kumawat at S.M.S. Hospital examined the patient and confirmed that the suffering of the patient was due to the administration of intramuscular (IM) injection. Similarly on 02.11.2007 a neurosurgeon, Dr. N.C. Punia examined the patient and conducted Nerve Conduction Velocity (NCV) test. It was diagnosed as left tibial axonopathy, which clearly established that there was a neural injury. Thereafter, on 02.02.2008, the patient was also examined by Dr. Chandramohan Sharma (Neurologist) at SMS Hospital who opined the same. We have perused one report dated 4.6.2009 issued by the Department of Forensic Medicine and Toxicology, S.M.S. Medical College & Hospital, Jaipur which opined that there was alleged history of intramuscular (IM) injection to left gluteal region and it was the case of left sciatic neuropathy, however, the board refrained to give exact cause of left sciatic neuropathy.

To understand more about the patho-physiology of sciatic neuropathy we took reference from the standard medical text books viz. Campbell's Operative Orthopaedics, Bailey & Love's Short Practice of Surgery, and few research/review articles A Treatment Option for Post-Injection Sciatic Neuropathy: Transsacral Block with Methylprednisolone : Pain Physician 2010; 13:451-456 • ISSN 1533-3159 Sciatic nerve injection injury: Journal of International Medical Research 2014, Vol. 42(4) 887-897 According to the medical text;

In simple terms, neuropathy is inflammation of the nerves. Inflammation is the characterized by swelling, redness, heat, and pain. Tibial nerve dysfunction is an unusual form of peripheral neuropathy. It occurs when there is damage to the tibial nerve. This nerve is one of the lower branches of the sciatic nerve of the leg. It supplies movement and sensation to the calf and foot muscles. Sciatic Nerve Injury is otherwise known as Sciatic neuropathy or injection palsy. It describes a situation where there is a loss of movement and or lack of sensation at the affected lower extremity with or without radicular pain.

Nerve injury is a common complication following intramuscular injection and the sciatic nerve is the most frequently affected nerve, especially in children, the elderly and underweight patients. The neurological presentation may range from minor transient pain to severe sensory disturbance and motor loss with poor recovery.

Trauma to the sciatic nerve through intramuscular (IM) injections at gluteal region (dorso-gluteal site) resulting in nerve damage are fairly common, especially in children because of a thin fat pad and lack of muscle bulk. The patient's history, physical findings, and electrophysiological evaluation are important for diagnosis.

On the basis of forgoing discussion, medical record and the medical literature (supra), in our view, patient suffered left sciatic neuropathy due to intramuscular (IM) injection given by the opposite party no. 1 on left gluteal region. We do not find any material irregularity or jurisdictional error in the well-appraised orders of both the fora below. We see no reason to interfere with the same.

The revision petition is dismissed. There shall be no order as to costs.

Per Hon'ble Mr. Dinesh Singh, Member

(i) Heard the learned counsel for the revision petitioner - doctor and the respondent no. 1 - complainant. None was present for the respondent no. 2 - untrained paramedic, who was proceeded against ex parte. Perused the material on record.

(ii) This is a case of medical negligence, resulting in permanent disability of the patient.

(iii) The District Forum had heard both sides, appraised the evidence, and, through its Order dated 10.05.2010, allowed the complaint:

- - - The most important argument of the learned counsel for the Non-Complainant is that Non-Complainant No. 1 had not administered any injection to Shubham. Contrary to it according to Complainant he was administered the injection. It is true that there is no reference of injection in the slip dated 06.10.2007 but thereafter the Complainant shown to Shubham to Dr. B.L. Kumawat neurologist at S.M.S. Hospital Jaipur on 14.10.2007 where in his slip the pain was told in the left lower link after the interamscularam injection and sever pain also told in heel and problem in the movement of leg. Thus this history was written by neurologist. Shri. B. K. Kumawat on 02.11.2007 has also mentioned the fact of giving the interamscularam injection. Thereafter Dr. N. S. Punia Associate Professor Neurosurgery S.M.S. Hospital Jaipur also examined to Shubham on 02.11.2007 and mentioned the history in which he referred the aforesaid situations arose after administering the intreamscularam injection. The aforesaid doctors got the many investigations of Shubham conducted and treated him. The aforesaid history has also been mentioned on 08.12.2007 in the slip of neurosurgeon of S.M.S. Hospital. Neurologist Chandramohan Sharma has also mentioned the aforesaid history in his slip dated 02.02.2008. The neurologist in his slip dated 08.02.2008 has also mentioned the aforesaid history. Thus the various slips of the doctors of the S.M.S. Hospitals it is certified that the Complainant is showing / telling to the doctors continuously that the condition of leg of Shubham became after administering the interamscularam injection which has been referred in the slips. Therefore it cannot be presumed that Non-Complainant No. 1 doctors R.S. Jangid had not administered any injection to Shubham. Therefore the come to this conclusion that the Non-Complainant No.1 Shri Jangid has administered the inetramscularam injection to Shubham and before administering the injection he did not make any investigation about the reaction of injection and not mentioned in his slip.

We have gone through the illustrations of Martin F. Desoza in which it has been laid down that in medical negligence the matter should be referred to the competent doctor or committee of competent doctors or the doctors of that area and on the basis of their report the further proceedings should be done but in the present matter the doctor is not admitting the fact of administering the injection, then in such circumstances it is not necessary to comply with the aforesaid principal. Apart from that many doctors of the S.M.S. Hospital have mentioned in the history that aforesaid situation have been arisen because of the administering of interascularam injection. In the file of this complaint the slips of investigation have been annexed and from that it is certified that the investigation of Shubham was done in various laboratories and treatment was taken and still treatment was going on and his leg was not working well. Shubham was produced before this forum and we found that his left leg had become shorten and he was given the support by affixing the artificial talwa. Shubham told the pain in the claw and toe of his leg and difficulty in the movement. In such circumstances we reach to this conclusion that in the present matter it is not possible to follow the principal of illustration of Martin F. Desoza's case.

The Complainant has produced the letter dated 18.03.2008 of Shri Kherapati Bal Vidhya Peeth and according to that the name of Shubham has been strike of from the school because of his regular absence from 08.10.2007 of the October month. This fact is also proved and confirm from Shubham would go to the school regularly and his presence would be entered but thereafter his name was strike of because of absence in the school and he deprived from education.

So far as the question of liability of Non-Complainant No. 2 is concern, the Non-Complainant No.2 had administered the injection on the instructions of Non-Complainant No. 1. Therefore in our humble opinion no liability remains on Complainant No. 2

On the basis of the above analysis we reached to this conclusion that the Non-Complainant No.-1 Dr. R.S. Jangid without examination of the reaction of the injection had administered the interamscularam injection, which was not referred prescription. The history mentioned by the doctors of the S.M.S Hospitals and the treatment taken, investigation conducted, it is proved that the condition of leg of Shubham had been after administering the interamscularam injection and because of that he deprived from education. His leg became disabled. Therefore matter is proved against the Non-Complainant Doctor R.S. Jangid for medical negligence and deficiency in the services.

We have considered in the matter of amount of the compensation. Considering all the facts and circumstances it is justifiable to award a sum of Rs. 1,00,000/- towards medical expenses and Rs. 1,00,000/- for permanent disability total compensation Rs. 2,00,000/- from Dr. R.S. Jangid.

Order

Resultantly it is ordered that the Non-Complainant No.-1 Dr. R.S. Jangid make a payment of Rs. 1,00,000/- towards medical negligence and for medical treatment and Rs. 1,00,000/- towards causing the permanent disability to the leg of Shubham total Rs. 2,00,000/- to the Complainant within two months from the date of decision otherwise after two months the Complainant will be entitled to receive the interest @ 9% per annum. The aforesaid amount will remain deposited in the F.D. A/c. of Shubham and its interest can be withdrawn any time on arising the necessity.

(para 7 of the District Forum's Order)

(as per the translated copy furnished by the revision petitioner)

(emphasis supplied)

(iv) The State Commission had heard both sides, appraised the evidence, and, through its Order dated 05.10.2016, dismissed the appeal:

On behalf of Appellant during the course of discussion, the first argument was given that Non-Complainant No.-1 had not administered any injection to the son of the Complainant. The slip prepared on 06.10.2007 is not having any reference of the giving / administering the injection. Second argument is that since Non-Complainant No. - 1 is a government doctor and he had not taken any fees from the Complainant, therefore on this basis he does not fall within the definition of consumer. On making consideration on this point we find that the observation of District Forum is reasonable. The Complainant got the slip made on 06.10.2007 that would made in the government hospital it does not seem. When this slip has been prepared on government hospital it does not seem. When this slip has been prepared on the letter pad of Non-Complainant No.-1 himself which is a clear indication that the slip was prepared at his home and the son of Complainant was seen / examined at the home and there is no reason to presume that he saw or examined him without any fees.

So far as the question of not administering the injection, it is true that the slip prepared on 06.10.2007 is not having any reference of injection. But injection was administered and in this regard affidavit is of Complainant. Thereafter the Complainant has shown to the doctor in Jaipur in which this fact is mentioned from which it appears that after administering the injection the problem arose in the left leg of son of Complainant. The injection was administered by the Non-Complainant No. - 2 who is not a trained nurse or compounder. Any such facts were not brought on record that Non-Complainant No.-2 was a trained. The Non-Complainant No. -1 had prepared the slip on 06.10.2007 and what he had prescribed / written the medicines and for what illness the treatment was given to the son of Complainant, in this regard the liability for giving the explanation was on Non-Complainant No.-1. The Non-Complainant No.-1 has prescribed four medicines, for what purposes these medicines were prescribed have not been mentioned in the reply. After administering of the injection on 06.10.2007 the complainant again contacted Non-Complainant No.-1 on 07.10.2007 and told the difficulties arose in the left leg of his son. Then the Non-Complainant No.-1 prescribed a tablet neurobion forte and naturally this tablet is related to the nerve. Thus the statement of Complainant is confirmed and thereafter when no comfort did not come then Complainant shown to Dr. B.L. Kumawat who is a neurophysician in S.M.S. Hospital Jaipur who was also told the situation after getting the injection administered. Thereafter again on 03.11.2007 Dr. N.C. Punia who is a neuro surgeon was also shown and treatment was started after conducting many test.

The learned counsel for the Appellant has forcefully gave this argument that after showing the experts in the S.M.S. Hospital no conclusion has been drawn that the problems created to the son of Complainant had been because of giving the injection. In this regard he has submitted the facts of first information report lodged by the Complainant before the police and the medical investigation report by the medical board received by the police during the investigation in the year 2009. According to the report of medical board it can not be said confirmly that what was the reason for the problem arose in the leg of Complainant.

We have considered all the points. The OK Diagnostic Research Centre has given the report of the son of Complainant. In this report it has been found "Nerve conduction study is suggestive of left tibial axonopathy".

Axonopathy tibial is a disease of nerve, because of that pain and fizz arises in the leg and its capacity reduced. Its main reason is the damage of tibial nerve. This nerve supply the sentation to leg and calf. The symtems shown in the leg of son of Complainant they all were that which arises after the damage of tibial nerve. The son of Complainant was brought for the stomach ach and as soon as he was given the injection and from the next date his leg had become numbed and he felt problem in walking and moving and severe pain started in the leg. The son of Complainant was given the intra muscular injection. Such type of complication naturally arises because of the administration of injection by a untrained person. The District Consumer Forum has referred the principles of Hon'ble Supreme Court in which he has taken the guidance of AIR 2009 Supreme Court 2049 Martin F Disoza in which he has taken the guidance in Jacob Mathew Versus State of Punjab SSC 01 in which it has been decided that the doctors related to the medical profession cannot be accepted to be lower standard but they should take the observation as per the prudence of common medical professional. In this matter because of the negligent proceedings of the Non-Complainant No.- 1 a boy has been disabled for whole life. Because the defence of Non-Complainant No.-1 is totally of denial. In this circumstance this fact is not important that the Complainant prove this fact from expert that there was medical negligence of Non-Complainant No.- 1.

So far as the final report given by police and no firm opinion expressed by the medical board does not have any importance in our opinion. The medical board does not have any importance in our opinion. The medical board has referred in his report that the son of Complainant has Sciatic Neuropathy and the history of intra muscular injection despite of this he did not give any firm opinion. Probably it can be a result of sympathy towards the companion doctor. The board has not written anything when tribial nerve axonopathy was found in the test report.

Making the consideration on all the facts and circumstances we find that there is no defect in the judgment passed by District Consumer Forum and Complainant has been successful in proving his complaint. The District Forum has drawn conclusion on the basis of well established judicial principal in which no interference is necessary. The appeal of Appellant deserves to be dismissed and is dismissed.

(extract of the State Commission's Order)

(as per the translated copy furnished by the revision petitioner)

(emphasis supplied)

(v) This revision has been filed under section 21(b) of the Act 1986 against the said Order dated 05.10.2016 of the State Commission.

(vi) This bench finds the Order of the State Commission to be well-appraised and well-reasoned. The State Commission has concurred with the District Forum. This bench notes in particular the extracts of the respective appraisals made by the two fora, quoted, verbatim, in paras 13(iii) and 13(iv) above. Within the meaning and scope of section 21(b), no grave error in appreciating the evidence by the two fora below is visible. This bench also finds the award made by the District Forum [quoted in para 13(iii) above], and as affirmed by the State Commission, to be just and equitable. No jurisdictional error, or a legal principle ignored, or miscarriage of justice, is visible.

(vii) Briefly, it is clearly shown in the concurrent findings of the two fora below that the patient, a 7 year old child, went to the doctor (revisionist) with complaint of "sudden stomach ache"; he was examined and treated at the doctor's residence; the doctor administered intramuscular injection in his left leg; after administering of the injection, his left leg became numb; he complained of severe pain, difficulty in walking and loss of movement; he subsequently, then, thereafter, went to neurologists at SMS Medical College & Hospital, Jaipur; the medical investigations and record show that he was treated for complaint of "pain in left lower limb after intramuscular injection" and "post intramuscular injection left peripheral neuritis"; the medical investigations [including inter alia through nerve conduction velocity (NCV) test] showed that there was neural injury ("left tibial axonopathy"). The condition of the patient did not improve even thereafter, post facto, with the subsequent treatment at SMS Medical College & Hospital, Jaipur; he suffered permanent disability due to negligence of the doctor in administering intramuscular injection without the requisite and required standard and diligence; his name was struck off from school owing to his absence and as such he was deprived of education. Medical negligence, deficiency in service, within the meaning of section 2(1)(g) & section 2(1)(o) read with section 14(1)(d) of the Act 1986, is clearly established. The immediate, and continuing, and permanent, consequences thereof are also clearly established.

(viii) The revision petition is patently devoid of merit. It is dismissed. No interference is warranted in the concurrent findings of the two fora below. Specifically, the Award made by the District Forum, and as affirmed by the State Commission, is upheld and confirmed.

(ix) Needless to add that the District Forum shall undertake execution as per the law.

(x) Let a copy each of this Order be sent to the District Forum and to the complainant by the Registry within seven days of pronouncement.