HIGH COURT OF BOMBAY
Decided on June 04,1994
NIVRUTTI G.MORE …Appellant
VERSUS
VINAYAK DESHMUKH …Respondents
JUDGEMENT
G.G. LONEY, J.
( 1 ) THIS appeal is preferred by the unsuccessful couple, having lost their complaint before the District Forum, Akola, alleging negligence in the treatment of their only son during his illness. A complaint No. 90 of 1993 filed by complainant came to be dismissed by the District Forum, Akola by the impugned order dated 21st August, 1993.
( 2 ) THE facts giving rise to the consumer dispute are that the complainant couples only son, Sachin, aged about 9 years was suffering from fever and was admitted in the private hospital, owned by Dr. Vinayak Deshmukh of Akola. The hospital is known as “Deshmukhs Children Hospital”. Sachin was admitted on 9-10-1992. On the next day of admission, a sample of his blood was tested for pathological examination. On 3rd day, i. e. on 11-10-1992, Dr. V. Deshmukh, opposite party, left away for Mehekar town at about 6. 20 p. m. Thereafter Sachin died in the hospital. These are the admitted facts. The complainant alleged that Sachin was diagnosed having “typhoid”. The complainants alleged that after the admission of Sachin, in private nursing home of opposite party, it was his responsibility to take reasonable care about Sachins treatment during hospitalization but Sachin died due to the negligence of opposite party. According to complainants, opposite party never informed them that he will be away from his hospital after admission of Sachin. It is also alleged that Dr. Vinayak Deshmukh personally was to treat Sachin but he left for another town on 11-10-1992 at 6. 20 p. m. knowing the condition of Sachin which was deteriorating. There was no responsible medical person available to attend on Sachin, in the hospital during the absence of opposite party. It is also alleged that one Mohd. Bhai, an employee of Dr. Vinayak Deshmukh, was acting as a compounder in the hospital in absence of opposite party and was not competent to treat Sachin. It is proved fact that in absence of Dr. Vinayak Deshmukh, the said MohammadBhai on 11-10-1992 prescribed an injection “Nvaquine” and `Dyppacil tablets under his own signature on the letter pad of Dr. Vinayak Deshmukh. The said document is at Annexure `a. The aforesaid medicines were told to be purchased by complainant by said Mohd. Bhai and he injected the full vial of “Navaquine” injection to Sachin at about 6. 00 p. m. in his presence. The complainant alleged that immediately within 20 minutes Sachin died as a result of that injection. Before his death, Sachin vomited blood. Thereafter, Mohd. Bhai sent for Dr. Anoop Kothari and he declared Sachin dead. The complainant alleged that his only son died due to negligent medical treatment during the hospitalization in O. Ps hospital.
( 3 ) COMPLAINANTS further alleged that they undergone family planning operation and due to the loss of their only male child, they have received severe mental shock and therefore, claimed Rs. 70,000/- towards compensation, apart from Rs. 5,000/- for medical expenses and Rs. 200 towards notice charges.
( 4 ) IN written version, the opposite party admitted the admission of Sachin in his hospital and stated that Sachin was treated in September, as outdoor patient and was diagnosed at that time having enteric fever. It is further admitted that again on 9-10-1992, at 8. 30 p. m. Sachin was admitted for high fever as an indoor patient and was treated for high grade fever of unknown origin. On the next day, the child showed some improvement and the fever came down to 100 to 101 of. The opposite party admitted that as per his prior appointment, he went away to Mehekar town on 11-10-1992. However, he had approached Dr. Anoop Kothari, a reputed childrens specialist to look after the indoor patients of his hospital including Sachin. It is further admitted that on 11-10-1992, in absence of opposite party, Dr. Anoop Kothari, took the round in the hospital and attended on the patients. It is further submitted that Dr. Anoop Kothari found that Sachin had developed rigors. It is further admitted that Dr. Kothari had advised injection “Navaquin 2 ML” to be repeated after 6 hours, and that injection was administered at about 10. 30 a. m. and was repeated at 4. 00 p. m. It is also admitted that at 5. 15 p. m. the patient (Sachin) suddenly became serious. Dr. Kothari attended on the patient at 5. 30 p. m. and used all emergency measures to save the patient. However, Sachin expired at 6. 00 p. m. Thus, it is submitted that there was no negligence in the treatment of Sachin, in the hospital of opposite party. The District Forum, Akola accepted the defence of the opposite party and concluded that from the facts stated by the opposite party, there was no negligence while treating Sachin in the Hospital.
( 5 ) ACCORDING to the District Forum, the “Navaquin” injection was administered to Sachin, twice by Dr. Anoop Kothari and rejected the contentions of complainant that it was administered by MohammadBhai, compounder. While dismissing the complaint, the District Forum also concluded that since alternative arrangement was made by Dr. Deshmukh, in his absence by instructing Dr. Kothari, there can not be a case of negligence on the part of Dr. Deshmukh while treating Sachin.
( 6 ) WE have heard Shri Lahoti, Advocate for appellant and Shri Santani, Advocate for respondent, Dr. Deshmukh. The admitted facts clearly show that Sachin was admitted in private nursing home of Dr. Vinayak Deshmukh, who had agreed to render the service for consideration. The administration of `Navaquin injection to Sachin in the hospital is also admitted by the opposite party. It is also admitted fact that MohammadBhai has been in the employment of the Dr. Vinayak Deshmukh as a compounder. It is admitted fact that Dr. Deshmukh had left for Mehekar town on the next day of admission of Sachin. It is an admitted fact that Sachin was the only male child of complainants. The other being the daughter. No postmortem was performed on the dead body of Sachin.
( 7 ) THE main disputed point in this case is as to whether there has been deficiency in the service of opposite party, Dr. Deshmukh, who had agreed to render the necessary service in his hospital to treat Sachin. Consequently, it is to be found whether the administration of injection of “Nivaquin” in absence of Dr. Deshmukh by his compounder if proved amounts to deficiency in the service.
( 8 ) THE most crucial document on record is a prescription signed by Mohd. Bhai dated 11th August, 1992 under his own signature and on the letter pad of Dr. Vinayak Deshmukh. A copy of which is placed at Annexture `a. On perusal the said document shows that the prescription of `Nivaquin injection is signed by Mohd. Bhai, the compounder of Dr. Vinayak Deshmukh in his own handwriting. It is also not mentioned therein that the said “Nivaquin” injection was prescribed by Dr. Kothari or Dr. Deshmukh. This crucial document has not been controverted specifically by the O. P. or his witnesses including Mohd. Bhai. There is an affidavit filed by Shri Nivruti More, in which he has stated in para 3, that on 11-10-1992 at 2. 30 p. m. Mohd. Bhai wrote a prescription in his own hand on the chit and advised him to purchase injection. Shri Nivrutti More, further stated that the prescribed injection was purchased and handed over to Mohd. Bhai and it was administered to his son at about 6. 00 p. m. by said Mohd. Bhai, compounder and thereafter suddenly at 6. 20 p. m. his son became serious, vomitted and expired and thereafter Dr. Kothari was called. He further stated that when Dr. Kothari saw Sachin, he told that the lungs of the child were affected and damaged and due to that the child died. There is also an affidavit of complainant Nirmala More. In reply to the complainants allegations, the O. P. also filed some affidavits. There is an affidavit of Dr. Vinayak Deshmukh in which he has not denied the fact of Mohd. Bhai having prescribed the injection `Nivaquin. However, it is stated in para 6 that Mohd. Bhai might have asked the relatives of patient to bring the medicine on the advice of Dr. Anoop Kothari. The reply is vague and evasive and is based on hear say information. There is another affidavit of Dr. Anoop Kothari. He does not deny the fact of injection being prescribed and injected by Mohd. Bhai. These witnesses came to the rescue of Dr. Deshmukh stating that the injection was prescribed by him and also administered by him on six hourly basis. He also admitted that Sachin suddenly became serious. There is another affidavit of Shri Ruprao Wankhade, another medical practitioner but he is not concerned so far as the prescription given by the Mohd. Bhai is concerned. There is the affidavit of Mohd. Bhai himself. He has clearly stated that he has been working in the hospital of Dr. Deshmukh as a compounder. He stated that Dr. Deshmukh had admitted Sachin in that hospital and on 11-10-1992 and he had left for Mehekar. In para 2 of his affidavit, he admitted that he has executed the prescription at Annx. `a to purchase the injection but it was on the advice of Dr. Kothari. We do not believe that Mohd. Bhai wrote the prescription on the advice of Dr. Kothari. When it is the case of Dr. Deshmukh that Dr. Kothari was to look after the patients in his absence and Dr. Kothari administered injection `nivaquine then why the prescription should be signed by Mohd. Bhai. To prescribe an injection is the duty of a medical practitioner but we are surprised to find Dr. Kothari did not prescribe `nivaquine. We therefore, do not believe that Mohd. Bhai wrote prescription on instruction by Dr. Kothari. We also do not attach credence to the papers of medical treatments which are obviously got tailored to suit the defence of opposite party. There is no noting of Dr. Kothari that he gave six hourly injection to Sachin. In 1st para Mohd. Bhai has stated that Sachin was given `navaquine injection but he does not say that it was given by Dr. Kothari. Thus the evidence of Mohd. Bhai is totally untrustworthy. It is very clear to us that Mohd. Bhai who having admitted to have written the prescription at Annx. `a it was on his own and not on any direction from Dr. Kothari. The question of Dr. Deshmukh, directing Mohd. Bhai does not arise since the prescription was written in absence of Dr. Deshmukh. On consideration of the evidence of affidavits, we clearly find that the decision to prescribe `nivaquin injection is of Mohd. Bhai and he alone on his own had written the prescription of injection `nivaquine alongwith other tablets and it was not the decision of Dr. Kothari or Dr. Deshmukh. We fail to understand when Dr. Kothari is said to have prescribed `nivaquine then why he failed to prescribe it in his own hand and on his own pad.
( 9 ) IT will be useful to know the effect and side effects of `nivaquine and the precautions which are required to be taken into consideration. During the course of appeal, the literature of `nivaquine Chloroquine Sulphate has been placed before us. The printed literature is issued by May and Baker Phamarceuticals. The opening sentence is “for use under medical direction”. Special instruction is “keep out of the reach of children”. It is prescribed for the suppression and treatment of all types. . . . . . of malaria”. It is stated that the `instramuscular Administration when parenteral administration (injection) is necessary dosage must be adjusted according to bodyweight, particularly in children. There is table given to adjust the doses according to age and weight of the patient. The age of Sachin was about 9 years and according to Dr. Deshmukh, he was under his treatment in the month of September, for enteric fever. Thus his weight at the most could be 15 Kg. Under the table, the maximum dose that could be give to him was 75 mg. or 1. 80 ml. It is important to note that the prescription given by Mohd. Bhai do not mention whether it was 2 ml. or 5 ml. which are available in market as stated in presentation.
( 10 ) IN the said literature under heading “side effects and precautions” is stated that when parenteral administration is used, care is necessary to prevent the occurence of convulsions or cardiovascular collapse, this is especially necessary in childern. Doses must be based on actual body weight in accordance with the table provided”. It is not the case of opposite party that Sachins weight was measured and the doses were administered on actual body weight of Sachin. Even this is not stated by Dr. Kothari in his affidavit. Under the heading “treatment of Over dosage” it is stated that gross overdosage with chloroquine requires prompt action to counteract its depressive effect on the respiratory and cardiovascular systems, as soon as possible followed by appropriate resuscitative measures, including tracheal intubation with artificial respiration”. There is also placed on record printed extract of `goodman and Gilmans. The Pharmacological basis of Therapeutics Eighth Edition. The chemistry of Chloroquine and its congeners are printed and illustrated at page 983, `toxicity and Side Effects of Chloroquine are given. Manifestations of severe acute chloroquine toxicity relate primarily to the cardiovascular system : these include hypotension, vasodilatation. . . . . and eventual cardiac arrest. Doses of more than 5 mg. are usually fatal. Prompt treatment with mechanical ventilation equinephrine and diazepam may be life saving. A reading of the aforesaid literature will show that the use of `nivaquine has to be made under medical supervision of a competent medical practitioner, and in case of side effects, the preparation must be made to counter the side effects. In the instant case for the sake of argument, if it is assumed that `nivaquine injection was given by Dr. Kothari, even then no such precautions were observed to adjust the doses according to the body weight of Sachin. Thus in our view, Dr. Kothari, as a fellow medical practitioner is obviously obliging Dr. Deshmukh by giving evidence to suit his defence. It is proved from the documentary evidence that Dr. Kothari, although mentioned in the case papers that he prescribed `nivaquine yet Annx. `a clearly proves that `nivaquine was actually prescribed by Mohd. Bhai under his own signature and he himself administered the complete injection to Sachin and never bothered to adjust the doses according to the body weight of Sachin. In fact Mohd. Bhai seems to be totally uneducated as regards the administering of `nivaquine injection. There is no evidence whatsoever, either in the affidavit of Dr. Deshmukh or any of his witnesses including Mohd. Bhai as to what measures they used when the condition of Sachin became serious to counter the reaction. No necessary measures were taken and no tracheal intubation was used. No artificial respiration was done. The so called hospital papers produced by O. P. do not inspire confidence as they are tailored to suit the defence of Dr. Deshmukh, opposite party. Sachins vomiting blood is a clear proof of his internal system being damaged due to the high dose of `nivaquine given by Mohd. Bhai. There is yet another evidence which nails the lie of opposite party. In prescription `a there is also a mention of `dymoil tablets but that is never prescribed by any medical practitioner. It is the sole decision of Mohd. Bhai to prescribe it as found in Annx. `a. This also clearly indicates that the O. P. was totally negligent while rendering promised service to Sachin. It is important to note that when Dr. Deshmukh had prior appointment at Mehekar, yet knowing full well his programme why he should promise complainant to treat Sachin who was having high fever. He did not inform complainant this fact while admitting Sachin. It is found that after his admission in the hospital, Dr. Deshmukh without giving proper instructions as regards the condition of Sachin left for Mehekar. There is no documentary evidence on record to show that Dr. Deshmukh had given any such instruction for treatment of Sachin in his absence. It is found that Sachin was left to the care of Mohd. Bhai a compunder, an untrained person not even qualified to be called as a para-medical person and Mohd. Bhai on his own gave the prescription of `nivaquine and Dymoil and administered the injection to Sachin and was not aware how to counter the reaction of Nivaquine, as a result of which Sachin immediately died after the injection. These facts are proved and established from the affidavit of complainant. Under these circumstances, we find that the negligence in the service of opposite party has been abundantly proved.
( 11 ) SHRI Santani, learned advocate for opposite party submitted that Dr. Kothari did his M. D. and is a qualified Doctor and was entrusted to look after Sachin in the absence of Dr. Deshmukh. We have no doubt about the qualifications of Dr. Kothari. But on consideration of material on record, we find that Dr. Kothari had not prescribed `nivaquine injection and not administered it himself, as claimed. His evidence is tendered with a view to oblige his colleague in the profession. Shri Santani, learned Advocate, further admitted that Mohd. Bhai who is admittedly a compounder of Dr. Deshmukh is not a qualified person. It is clearly seen that Dr. Deshmukh has been negligent while rendering necessary service to the complainant for the proper treatment of his son. Dr. Deshmukh was further found negligent in as much as he left for Mehekar ignoring the serious condition of Sachin and without making proper arrangement for his treatment. When he was aware of his going away to Mehekar, he could refuse admission to Sachin in his hospital, so that he could get required treatment from other medical practitioner. The deficiencies in the service are further aggravated from the fact that Mohd. Bhai, a compounder was in charge of the hospital, who recklessly used the letter pad of Dr. Deshmukh, while prescribing `nivaquine injection, a medical product, which has to be used under medical supervision and care. Under these circumstances, we find that the District Forum did not consider this aspect and committed an error in dismissing the complaint. We are therefore, satisfied from the material on record that the complainants have proved their allegations and established the negligence in the treatment of Dr. Deshmukh while treating Sachin. It is very apparant that Dr. Deshmukh did not demonstrate reasonable care to treat Sachin who needed the presence of qualified medical person during his hospitalizaton. The faith deposed by complainants in Dr. Deshmukhs ability was completely shattered.
( 12 ) THE complainant has claimed compensation of only Rs. 70,000/- towards loss of his only male child. The seriousness of the loss of the complainants can be found from the fact that after the birth of Sachin and one daughter, the couple underwent family planning operation. Under these circumstances, in our view, the claim of Rs. 70,000/- for compensation is based on very conservative and humble estimate and therefore, we are inclined to accept it in toto. We find that complainants in this case are not motivated to claim frivolous compensation from opposite party but are compelled to claim a very reasonable and humble amount as compensation. Similarly, we also accept the claim of complainant for spending Rs. 5,000/- for medical treatment. Hence, we allow this appeal and pass the following order. Order the appeal is allowed. The impugned order is set aside. The complaint is allowed, and the opposite party, Dr. Vinayak Deshmukh through “deshmukh Children Hospital” is directed to pay to the complainants Rs. 70,000/- towards compensation for the loss of life of Sachin and further pay Rs. 5,000/- for medical expenses and Rs. 2,000/- (Rupees Two Thousand Only) towards cost of the complaint and appeal. The total amount of Rs. 77,000/- be paid to the complainant within 30 days from the receipt of this order failing which the amount shall carry interest at the rate of 18% till realisation. Appeal allowed.
