M. Balraj vs Dr. N. Velusamy

M. Shreesha, J

Challenge in this Revision Petition under Section 21(b) of the Consumer Protection Act, 1986 (in short "the Act") is to the order dated 23.10.2013 in First Appeal NO. 77 of 2012 passed by the Tamil Nadu State Consumer Disputes Redressal Commission, Chennai (in short "the State Commission"). By the impugned order, the State Commission has allowed the Appeal preferred by the Dr. N. Velusamy (hereinafter referred to as "the Treating Doctor") and set aside the order of the District Consumer Forum Disputes Redressal Forum, Trichy (in short "the District Forum) in CC/79/2009 dated 29.09.2010, thereby dismissing the Complaint.

The facts in brief are that the Complainant admitted his wife (hereinafter referred to as "the Patient") on 16.10.2006 at 9.30 p.m. in the hospital of the treating Doctor with frothy secretion from her mouth and in an unconscious state. It is averred that the Patient was in a critical condition and the treatment had to be started immediately. It is pleaded that the treating Doctor informed the Complainant that the Patient had tried to commit suicide by consuming some poison like polydol or monochrotospos, though the Complainant and his son informed the Doctor that the Patient did not tried to commit suicide and that the frothy secretion was due to a scorpion bite and requested the Doctor for treatment of the same. It is averred that there was no bad odour. It is stated that without handing over the body to the Complainant, the Doctors send the body to Karur, Government Hospital for post-mortem. It is averred that even after several dates there was no information about the post-mortem chemical analysis report of the Patient and the Complainant requested the Joint Director of Health Services under RTI for the said report.

It is pleaded that as per the report it was indicated that the viscera organs of the Patient was sent for chemical analysis and no poison was detected in any of them. It is pleaded that it is only because of the wrong diagnosis of the treating Doctor that the Patient had consumed poison and treating her for the same that the Patient had died. Hence the Complaint seeking the following reliefs:

"(a) to direct the respondent to pay a compensation of Rs.18,50,000/- towards the mental agony, looses and hardship for me and my family suffered due to death of my wife B. Elizabeth Manickam caused by the deficiency in service and wrong treatment of the respondent Dr. N. Velusamy.

(b) to order the respondent to pay back the amount Rs.1,50,000/- that I incurred for the treatment.

(c) award cost of Rs.25,000/- to the complainant.

(d) and pray that the Hon'ble Forum be pleased to order or such further order or orders as the Forum may deem fit and proper and thereby render justice."

The treating Doctor has filed his Written Version stating that the Patient was aged 72 years, was Hypertensive, Diabetic and was having other complications when she was admitted on 16.10.2006 at 9.30 p.m. in a precarious condition with frothy secretion and in an unconscious state. The treating Doctor provisionally diagnosed it as Organo Phosphorus Compound Poison case and sent the blood for Cholinesterase level test which is the definite test to confirm the diagnosis of Organo Phosphorus Compound Poison. The Cholinesterase level was 534 I.U/L on 16.10.2006 and the same test was repeated on 17.10.2006 which was 101 I,U/LT. (Normal Level 2710-11510) which confirmed the provisional diagnosis.

It is averred that on the basis of clinical findings and laboratory investigations, treatment was provided to the Patient and the Complainants also instructed to find out if there were any containers of poison at the residents. As per the instructions of the Doctor, the Complainant went home and searched the entire house and brought an empty tin with no label. They were also requested to get the nature of the compound from the retail shop and though they brought a compound label, the treating Doctor could not come to a definite conclusion as it did not tally with the diagnosis and the symptoms and investigation results.

It is pleaded that the standard treatment for Organo Phosphorus Compound Poisoning case was given, which is stated as hereunder:

"A) Stomach wash given.

B) Injection Atropine and injection P2 AM were given in addition to IV fluids and Antibiotics.

C) Ventilator Support was given as she had respiratory muscle weakness. The Patient was treated in Intensive Care Unit watching all the 24 hours throughout her stay in the hospital"

It is further averred that the treating Doctor took informed consent and even suggested to the Complainant to take the Patient to another Hospital if they are not satisfied with the diagnosis or the method of treatment. Despite giving the best care, the Patient died on the 8th day of her admission due to the after effects of Organo Phosphorus Compound Poison added to her old age. The post-mortem report indicated that the cause of death was Organo Phosphorus Compound Poison and hence there was no negligence on their behalf.

The District Forum based on the evidence adduced, allowed the Complaint directing the treating Doctor to pay an amount of Rs.3,00,000/- within a month together with Rs.1,000/- as costs.

Aggrieved by the said order, the treating Doctor preferred an Appeal before the State Commission, which, while allowing the appeal, observed as follows:

"16. While taking into consideration of those rulings in this case, since the appellant is in a position to establish that he had given proper and regular treatment by taking utmost care to the patient, we find no lacuna or error with regarding to the treatment given as per document under the summary of the case under Ex. B1 series as well as under Ex. A2 and carefully for each and every hour the condition of the patient was recorded on each day, the Patient's condition was informed and also the complainant was given option to avail some other better management for the treatment by explaining the circumstances. But the complainant chose to have the treatment only which the opposite party's hospital by taking into consideration of the condition of the patient and status of the hospital which is also admitted by him in his cross-examination. Even though the Complainant after 23.10.2006 did not come forward with any allegation against the opposite party regarding the negligence or deficiency in service and stated that he filed a complaint only on the basis of Ex. A6 which was obtained in 2007 getting the same through RTI process in 2009 only the complaint came to be filed and it is alleged by the opposite party as time barred one, since the complainant had knowledge on 23.10.2006 itself and in view of the facts and circumstances of the case, we are of the view that since the complainant has come forward with complaint only on the basis of no poisoning substance found in the body of the deceased for the clinical report only after the year 2007 alone which cannot be termed as cause of action for computing limitation for filing of the complaint and there by we are of the view the complaint is not barred by limitation. The complainant's side rulings will be applicable in general and as far as the case in our hand since the Complainant failed ot prove that the complainant's wife was found when the opposite party was able to prove that only because of the poisons substance consumed by the complainant's wife treatment was given with due care, ability and diligence after having necessary tests including blood tests and diagnosis thereby we are of the view that the District Forum wrongly held about the existence of poisonous substances concerned, without going deep into the details under Exhibits A6 ( which is wrongly mentioned as Ex. A7 in the order), erroneously allowed the complaint which is liable to set aside."

Learned Counsel appearing for the Revision Petitioner/ Complainant vehemently contended that it was only on account of wrong diagnosis that the Patient had consumed poison and the wrong treatment given by the treating Doctor for poison consumption instead of insect bite the Patient had died. He placed reliance on the Forensic Science report in which it is stated as follows:

"On careful perusal of the documents (FIR, Postmortem Certificate, Chemical Examiner's report, Histopathological examinations report) I am of the opinion that, there is no evidence of termination of pregnancy in the postmortem certificate and gestational sac intact with products of conception in the Uterine Cavity. Hence it is suggestive of that there is no manual interference in Terminaiton of Pregnancy . In Histopathological examination, Section A and B of the skin tissues shows no significant finding, evident that of the necrotic drugs was not used as intravenous injection. C2 section cervix shows evidence of mild chronic cervicitis may suggestive of application of local irritants for a long time is possible. It is found that no poison was detected in the chemical examiner's report.

In few circumstances, it is not possible for the Chemical Examiner to detect the poison. Eg (1) Poison may have been eliminated by vomiting and diarrhea. (2) Whole of the poison has disappeared from the lungs by evaporation or oxidation (3) poison may be detoxified, conjugated and eliminated from the system. (4) Some vegetable alkaloidal poisons cannot be definitely detected by chemical methods (5) some drugs are rapidly metabolized, making extraction difficult (6) some organic poisons may be oxidized, or due to faulty preparation or from decomposing may deteriorate (7) Biological toxins and venoms which are protein cannot be separated (8) poison may be completely excreted. Injection of poisonous substance can be ruled out. However, application of poisonous substances cannot be ruled out."

The aforenoted Forensic Science report issued by Prof. Forensic Medicine and Police Surgeon, Madurai, on 29.01.2008, does not conclude that the cause of death was either on account of poison consumption or on account of insect bite. The aforenoted report also explains that in the certain circumstances it is not possible for the chemical examiner to detect the poison. In this scenario we are of the considered view that the alleged negligence of the treating Doctor should be decided on the touch stone of what the Hon'ble Supreme Court has laid down in a catena of judgments regarding medical negligence.

The Hon'ble Supreme Court in Arun Kumar Manglik Vs. Chirayu Health And Medicare Private Limited &Anr., 2019 (3) SCALE 333, has laid emphasis on 'Patient Centric Approach' and observed that the 'Standard of Care' as enunciated in the Bolam Case must evolve in consonance with its subsequent interpretation by English and Indian Courts.

In Halsbury's Laws of England the degree of skill and care required by a medical practitioner is detailed as follows:-

"The practitioner must bring to his task a reasonable degree of skill and knowledge, and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence, judged in the light of the particular circumstances of each cases, is what the law requires, and a person is not liable in negligence because someone else of greater skill and knowledge would have prescribed different treatment or operated in a different way; nor is he guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art, even though a body of adverse opinion also existed among medical men. Deviation from normal practices is not necessarily evidence of negligence. To establish liability on that basis it must be shown (1) that there is a usual and normal practice; (2) that the defendant has not adopted it; and (3) that the course in fact adopted is one no professional man of ordinary skill would have taken had he been acting with ordinary care."

A doctor has a legal duty to take care of his patient. Whenever a patient visits a doctor for treatment there is a contract by implication that the doctor will take reasonable care to treat him. If there is a breach of that duty and if it results in injury or damage, the doctor will be held liable. The doctor must exercise a reasonable degree of care and skill in his treatment; but at the same time he does not and cannot guarantee cure.

(Emphasis Supplied)

In the light of the principles laid down by the Hon'ble Supreme Court what has to be seen whether the doctor has acted as per the standard principles of normal medical parlance. In the instant case admittedly the Patient aged 72 years was in an unconscious state, with frothy secretion from the mouth, constricted pupils and in a critical stage when she was admitted in the hospital of the treating Doctors pm At 9. 30 p.m. It is seen from the medical record that the biochemistry report shows the enzyme cholinesterase is 534 L.U./Lt. when the normal range is 2710-115150, which evidences that it was Phosphorus Compound Poison which happens with consumption of poison. On a pointed query from the Bench as to what the protocol is under WHO guidelines for poisoning, learned counsel appearing for the treating Doctor drew our attention to WHO Report,2008 clinical management of acute pesticide intoxication, wherein it is stated that Atropine is most important antidote for pesticide poisoning followed by careful monitoring and stomach wash. The case summary evidences that the standard treatment for Organo Phosphorus Compound Poison was given with the stomach wash, injection Atropine and ventilator support. The progress notes also shows that the supportive measures like IV fluids and antibiotics were given. Therefore we are of the considered view that the standard treatment as per the protocol laid down was given by the treating Doctor. The contention of the learned counsel appearing for the Complainant that it was not a case of poisoning but a case of insect bite is not evidenced by any medical test or by the postmortem examination report or forensic science report. If it is a scorpion bite as averred in the Complaint, a visible sign would have been noted in the postmortem report. On a pointed query from the Bench , the reasons for the Complainant to have stated in the CrPC statement before the Police, that the Patient had consumed poison, he stated that the Complainant said so only because the treating Doctor had informed the Complainant and the attendants that the froth secretion from the mouth was on account of consumption of poison. At the cost of repletion, we reiterate that neither the postmortem report nor the forensic science report evidences that there was any suggestion of an insect bite.

For all the aforentoed reasons, we do not find any negligence on behalf of the treating Doctor and we confirm the finding of the State Commission, hence this Revision Petition fails and is accordingly dismissed and no order as to costs.