Full Judgment
Mahesh Chandra, Member:
1. Shri S.K. Sharma has filed this complaint against Dr. L.C. Sharma alleging medical negligence and deficiency in service on the part of the O.P. on account of which the complainant lost his hearing power and became a deaf person.
2. The facts of the case in brief are that on 22.1.1992 at about 4.00 p.m. the complainant was admitted in Sanjay Nursing Home belonging to O.P. Dr. L.C. Sharma for treatment of high fever. It is alleged that the O.P. without proper investigation immediately put the complainant on Glucose mixed with Gentamycin. The OP also took the chest x-ray of the complainant. Next day in the morning, the complainant complained to the O.P. that he is not in a position to hear any sound and felt as if he has become deaf. However, the O.P. assured the complainant that he will recover his hearing after the fever comes down. But there was no improvement in the condition of the complainant, neither the fever came down nor there was any improvement in the hearing. On 24.1.1992 the complainant requested the O.P. to call some ENT Specialist since there was total loss of hearing. However, the O.P. again changed the medicine and did not bother to call a specialist. The O.P. discharged the complainant on 25.1.1992 after charging Rs. 1,445/- as medical expenses. Even at that time the complainant was running high fever and there was total loss of hearing. The complainant after his discharge consulted Dr. Vijay Rawat on 27.1.1992, 26.1.1992 being a National Holiday. Dr. Rawat treated the complainant for high fever and also observed that the complainant lost his hearing capacity because of wrong combination of antibiotic medicines given to the complainant, which was not required. Dr. Rawat referred the complainant to Dr. Sunil Kathuria, ENT Specialist who after conducting various tests came to the conclusion that the loss of hearing has been caused because of injection of Gentamycin drug and it cannot be cured now. The complainant got himself examined from All India Institute of Medical Sciences and experts attending there after extensive investigation and clinical examination came to the conclusion that it is a irrevocable loss and cannot be cured. The complainant alleged that the O.P. did not properly diagnosed the complainant and adopted hit and trial method without proper investigation and the injection of Gentamycin drug administered by the O.P. caused total loss of hearing. It is also stated by the complainant that he was working as Mine Foreman in the Delhi Mineral Corporation Limited and he will be declared medically unfit person because of his deafness and will be deprived of his job. Thus it is alleged that on account of the gross negligence on the part of the O.P. the future of the complainant has become bleak. It is also stated that the complainants wife has expired leaving behind one child and now nobody will marry him due to total loss of hearing. It is also stated by the complainant that the O.P. is running the said Nursing Home without getting it registered under the Delhi Nursing Home Registration Act and is treating the patient without proper care and efforts. It is also stated that there is no specialist doctor attending to the patients, even though long list of specialists is mentioned in the brochure. It is also stated by the complainant that the O.P. Dr. L.C. Sharma is not a qualified doctor and is a quack. Hence the complainant filed this complaint alleging medical negligence and deficiency in service on the part of the O.P. and claiming compensation of Rs. 10,00,000/- for the loss of hearing and also as compensation of mental agony and pain.
3. The O.P. Dr. L.C. Sharma in his reply stated that the said Nursing Home does not belong to him and he is only the Administrative Officer of the said Nursing Home who prepares discharge certificate in respect of patients admitted in the Nursing Home. It is admitted by the O.P. that the complainant was admitted in Sanjay Nursing Home on 22.1.1992 at 4.00 p.m. due to high fever but denied by the O.P. that the complainant was immediately put on glucose mixed with Gentamycin. It is stated that the complainant was examined by Dr. Gopal Rai, MBBS, MD who diagnosed that the patient was suffering from typhoid and chest congestion with high fever. Dr. Gopal Rai recommended test and put on the patient onto glucose mixed with Gentamycin. The O.P. stated that the Gentamycin does not require any pre-admission test. It is neither banned nor contains any warning. The O.P. further stated that in morning the temperature of the complainant came down and his condition was improving and the medicine was changed as per the advice of Dr. Gopal Rai. It is further asserted that the complainant did not complain about hard of hearing when he got admitted or thereafter at any time till he was discharged from the hospital. The O.P. further stated that Dr. Virender Sharma who is a visiting ENT Specialist in the Nursing Home. However, the complainant never complained of any hearing problem and he was discharged from the Nursing Home at his own request. The O.P denied that he was one of the consultant doctors who attended the complainant in the Nursing Home and he was nowhere connected with the treatment of the complainant being the Administrative Officer of the said Nursing Home. O.P. Dr. L.C. Sharma also stated that he is running his own clinic at WZ-611, Raj Nagar, Palam Colony, New Delhi for the last 20-22 years as a child specialist and Sanjay Nursing Home belongs to Dr. Jaswant Sharma, BAMS. The O.P. also denied that he is not a qualified doctor and he is cheating the patient without proper care and efforts. It is further stated that the registration process of the Nursing Home is under verification and is pending with the appropriate authorities. It is alleged that this bogus and malicious complaint has been filed to ruin the reputation of the Nursing Home and it should be dismissed with costs.
4. In his rejoinder the complainant denied that the O.P. is only the Administrative Officer of the Nursing Home but stated that he has throughout treated the complainant and it is because of wrong combination of antibiotic medicines administered to him that the complainant has lost his hearing power. The complainant also denied that he was treated by Dr. Gopal Rai and the name of Dr. Gopal Rai has been introduced to shift the responsibility. The complainant also denied that he was treated by Dr. Vikas Bhardwaj and Dr. S.K.S. Rawat but again asserted that he was only treated by Dr. L.C. Sharma. The complainant also asserted that the O.P. was not eligible to prescribed Allopathic medicines, as he is not a qualified Allopathic doctor.
5. In support of the complaint the complainant has filed his own affidavit, affidavit of Smt. Sheila Devi in whose presence the complainant was admitted in the Nursing Home and affidavit of Sh. Y.K. Gaur, brother of the complainant who got the complainant admitted in Sanjay Nursing Home along with a copy of the discharge certificate, prescription of Dr. Vijay Rawat and Dr. Sunil Kathuria and prescription of All India Institute of Medical Sciences and other tests report. The O.P. Dr. L.C. Sharma has filed his own affidavit and also the affidavit of Dr. S.K.S. Rawat, Ms. Mini Kuruvilla, a nurse employed in the Sanjay Nursing Home and one Sh. Sohan Pal who is employed in the Sanjay Nursing Home as Ward Boy. The O.P. has also filed the case-sheet of the complainant Sh. S.K. Sharma and other relevant documents.
6. We have heard both the parties at length and have carefully considered the arguments advances from both sides. We have also carefully gone through the various documents/material on record filed on behalf of the parties. It is not disputed that the complainant Sh. S.K. Sharma was admitted in Sanjay Nursing Home on 22.1.1992 due to high fever and he was discharged from the Nursing Home on 25.1.1992. It is also admitted that he was given Glucose mixed with Gentamycin at the said Nursing Home. Now the dispute is whether the treatment was provided to the complainant by the O.P. Dr. L.C. Sharma and whether there was any negligence on the part of the O.P. in providing treatment on account of which the complainant lost his hearing power and became deaf. According to O.P./Dr. L.C. Sharma, he is only Administrative Officer at Sanjay Nursing Home and he has nothing to do with the treatment of the complainant as he used to prepare discharge certificate and the bills at the Nursing Home. However, this contention of the O.P. is falsified by the evidence on record. In the letterhead of Sanjay Nursing Home the name of O.P. Dr. L.C. Sharma is printed at Sr. No. 2 after the name of Dr. (Mrs.) Jaswanti Sharma, BAMS and he is being represented as a Child Specialist. Moreover in the affidavit of Dr. S.K.S. Rawat filed by the O.P. it is mentioned in para 3 of the affidavit that the complainant was examined thoroughly by a panel of three doctors namely Dr. Gopal Rai, Dr. Vikas Bhardwaj and Dr. L.C. Sharma. In view of the affidavit of Dr. S.K.S. Rawat relied upon by the O.P., own affidavit of O.P. is falsified and it is proved that O.P. Dr. L.C. Sharma was one of the doctors who attended to the complainant and provided treatment. It is the case of the O.P. that the treatment was provided by Dr. Gopal Rai, MBBS, MD who was a consultant in the said Nursing Home and Dr. Gopal Rai orally prescribed the medicine and recommended certain tests. This is specifically denied by the complainant who has asserted that he was not examined by Dr. Gopal Rai and Dr. Gopal Rai did not prescribe any treatment to him. In spite of this assertion of the complainant in his affidavit and rejoinder, the O.P. has failed to file any affidavit of Dr. Gopal Rai to prove that it was actually Dr. Gopal Rai who examined the complainant and prescribed the treatment. In the absence of the affidavit of Dr. Gopal Rai it cannot be said that the complainant was treated by Dr. Gopal Rai. As far as Dr. S.K.S. Rawat is concerned, he himself has admitted in his affidavit that he was away from the Nursing Home from 4.00 p.m. to 7.00 p.m. on 22.1.1992 when the complainant was brought and admitted in the Sanjay Nursing Home. He only prepared the case-sheet and provided him subsequent treatment and care. Under these circumstances we are inclined to hold that the complainant was examined by the O.P. Dr. L.C. Sharma who prescribed the necessary treatment in the Nursing Home.
7. The next question which needs consideration is whether O.P. Dr. L.C. Sharma is a qualified doctor to prescribe Allopathic medicine i.e., Gentamycin to the complainant. According to the O.P. he is an authorized doctor having a degree of BIMS No. 1140/71 from Delhi and he is running his own clinic in a separate premises for the last 20 years. However, the O.P. has not filed a copy of his degree/diploma to prove this fact, in spite of the fact that the complainant has asserted that he is not a qualified doctor and is a quack. Even if this is presumed that the O.P. Dr. L.C. Sharma is holding a degree of BIMS, it is relevant to note that this degree only authorizes him to prescribe Ayurvedic medicines and to provide treatment according to the Ayurvedic branch of medicine. The degree does not permit him to prescribe Allopathic medicine and also to provide treatment according to the Allopathic medical science.
8. Honble Supreme Court of India in the case of Poonam Verma v. Ashwin Patel and Others, reported as, II (1996) CPJ 1 (SC), has expressed the view:
âa person who does not have knowledge of a particular system of medicine but practises in that system is a quack and a mere pretender to medical knowledge or skills or to put it differently, a charlatan.â
9. In the said case a Homoeopathic doctor put the patient on intravenous Glucose (Dextrose Drip) without asserting the level of blood sugar by a simple blood test and the Honble Supreme Court of India held that the doctors conduct amounted to actionable negligence.
10. In the instant case the O.P. was only authorized to practise the Ayurvedic system of medicine but he prescribed Allopathic medicine and the patient was put on Glucose mixed with Gentamycin on account of which the complainant lost his hearing power and became completely deaf. A brochure issued by the All India Institute of Medical Sciences filed by the complainant shows that the complainant should avoid use of Gentamycin besides other medicines as it is likely to increase his problem and hearing loss. It would thus follow that the complainant lost his hearing power due to some wrong treatment provided at Sanjay Nursing Home and it may be due to excess dose of Gentamycin mixed with Dextrose. It is unfortunate that due to the negligence on the part of the O.P. by providing Allopathic treatment for which he was not authorized, the complainant lost his hearing power and thereby causing permanent disability to him. Since the O.P. treated the complainant with Allopathic medicine of which he could have no knowledge, no further proof is required to prove medical negligence on his part, in view of the observation of the Honble Supreme Court of India referred above.
11. The complainant was employed as a Mining foreman with Delhi State Industrial Development Corporation Limited. He remained suspended for a couple of years on account of this disability but was finally reinstated on a different post in view of his deafness. The complainant has thus suffered not only mental agony and harassment but he has been running from one doctor to another including at All India Institute of Medical Sciences. He has been contesting this case for the last 12 years and his disability has been declared as almost incurable. A certificate issued by Dr. R.C. Deka, Professor and Head of ENT Department, All India Institute of Medical Sciences had recommended âCochlear Implantâ which can be surgically implanted and has given the budget estimate of the said Cochlear Implant at Rs. 7,50,000/-. It thus appears that the complainant has become permanently disabled and has lost his hearing power and the treatment suggested above by Dr. R.C. Deka may benefit but there is no certainty. Thus irreparable loss has been caused to the complainant on account of medical negligence on the part of the O.P. by providing the treatment for which he was not qualified and authorized.
After the hearing was concluded and final arguments were heard, the O.P. has filed a report from Delhi Medical Association to prove that Gentamycin does not require any sensitivity test. However, no notice can be taken of this report as it was filed after final arguments were heard and no opportunity was given to the complainant to rebut this report.
In view of the above discussion we have found the O.P. Dr. L.C. Sharma liable for medical negligence and deficiency in service on his part and direct the O.P. to pay compensation of Rs. 3,00,000/- to the complainant for the permanent disability caused to the complainant. The O.P. is further directed to pay Rs. 15,000/- as cost of litigation. The above order should be complied with by the O.P. within 30 days of the receipt of this order, failing which the complainant shall be free to take appropriate action under Sections 25/27 of the Consumer Protection Act, 1986 as he may be advised.
If the said amount of compensation is not paid by the O.P. within 60 days the O.P. is liable to pay 12% interest on the amount of compensation till payment.
The present complaint filed by the complainant is disposed of in above terms.
Complaint disposed of.