Devi Rani Vs. N. Prakash Rao and Others - Court Judgment

P. Ramakrishnam Raju, President:

1. The complainant had a mild fever and so she visited the clinic of the first opposite party, hereinafter called as ‘Doctor for treatment on 9.10.1987, who advised her to take two tablets of “Amalar”. After taking the tablets the complainant had a swollen body and in some parts of the body she had visible signs of Ammavaru (rashness like chicken pox). The complainant requested the doctor to attend on her at her residence but the latter flatly refused. When the complainants husband went again the Doctor advised a tablet of Cibexinio and Glycerine bottle. The complainant accordingly took the tablets and after some time she also applied Glycerine as suggested by the doctor, but instead of cure the complainant had high swollen body figure and there were rashes and scratches on the body. After taking Amalar tablets the complainant had filthy/bad odour from her mouth and also from the nose. The doctor due to his sheer negligence prescribed Amalar tablets which resulted in the  loss  of  eyesight. It is confirmed on examination by a renowned Opthamologist, Dr. P. Siva Reddy with Pathological test. The action of the doctor resulted in snatching away the eye-sight of the complainant. The complainant also had taken further medical advice from L.V. Prasad Eye Hospital, Hyderabad, who also confirmed that she lost her eye-sight completely and there are no chances of any repair to the retina. The complainant who is just 32 years old thus became helpless with five minor children out of them four are daughters. She had to daily spend an amount of Rs. 150/- towards medical expenses like tablets, eye drops, etc. The complainant issued a legal notice on 30.10.1993 to the doctor calling upon him to pay Rs. 12 lakhs with interest for which a contentious reply was given. Hence, the complaint.

2. The first opposite party in his counter-affidavit stated that the complainant visited him on 9.10.1987 for treatment of Malaria and on 10.10.1987 with burning sensation of tongue and general weakness. Her husband visited him on 13.10.1987 and thereafter they never turned up for any treatment. It is further stated that inasmuch as the manufacture of the drug ‘Amalar i.e., M/s. Brown and Burk Pharmaceuticals Private Limited, 93, Sipcot Industrial Complex, Hosur, Tamil Nadu, is not added as a party the complaint is liable to be dismissed for non-joinder of necessary parties. No fee was also charged by him by way of consideration.

3. After examining the patient he noticed the symptoms of Malaria and hence he prescribed standard drug (two tablets of Amalar). The drug Amalar is a combination of Sulphadoxine and Pyrimethmine which is commonly used drug in the therapy of Malaria. On inquiry the complainant informed him that she is not allergic to any drug. So he prescribed the said drug. The complainant visited his clinic on 10.10.1987 with a further complaint of burning sensation of tongue and general weakness. There were no signs of drug reaction. Hence, he prescribed cebexin multivitamin tablet and Glycerine bottle for burning sensation of the tongue. Thereafter the complainant did not turn up. However, on 13.10.1987 the complainants husband came back and reported that she developed Ammavaru. Though he asked him to bring the complainant immediately to his clinic for examination, the latter requested him to prescribe a suitable drug. Hence, he prescribed a soothing agent Anethical Lotion. Inspite of his direction to bring the complainant immediately he did not do so. He also denied that any request was made for house visit. He has diligently prescribed standard drug for Malaria. There is no recklessness or deficiency in service on his part. The complainant might have used some other drug for body pain, fever or cough which are commonly sold in the counter in medical shops.

4. Opposite parties 2, 3 and 4 though originally added were given up on 5.4.1994 itself.

The complainant examined three witnesses including herself as P.W. 1 and her husband as P.W. 2. P.W. 3 is the brother of P.W. 2. She also filed Exs. A-1 to A-23. The opposite party examined himself as R.W. 1, besides filing Exs. B-1 to B-4.

5. The points that arise for consideration are :

(i) Whether the doctor has committed deficiency in service by prescribing ‘Amalar tablets when the com-plainant visited him on 9.10.1987 ?

(ii) Whether the loss of eye sight by the complainant is the result of prescription of ‘Amalar tablets by the doctor ?

(iii) To what relief ?

Points 1 to 3 :

The case of the complainant is that she had a mild fever attack and hence she visited the opposite party doctor on 9.10.1987 who advised her two tablets of ‘Amalar. Ex. A-1 is the prescription dated 9.10.1987 issued and signed by the doctor. The opposite party doctor also admits in his counter that the complainant visited him on 9.10.1987 and after observing the symptoms of Malaria he has prescribed two tablets of ‘Amalar. In his evidence also he admits that he prescribed two tablets of ‘Amalar on 9.10.1987. Therefore, we do not find any impediment to come to the conclusion that the opposite party prescribed two tablets of ‘Amalar on 9.10.1987.

6. It is the further case of the complainant that prescription of ‘Amalar without giving any test dose and without consulting the complainant whether she is allergic to any drugs is  deficiency  in  service,  while  the  opposite  party  doctor  contends  that  ‘Amalar  which  is a combination of Sulphadoxine and Pyrimethamine is commonly used drug in Malaria therapy. It is also his further case that he enquired the complainant whether she is allergic to any drug and the complainant told him that she is not allergic and that her answer was in the negative. The opposite party doctor observed symptoms of Malaria as the complainant was suffering from fever associated with chills and rigours. The complainant denies chills and rigours. We are of the opinion that the opposite party must have noticed chills and rigours as he prescribed the drug for Malaria. Be that as it may.

7. The question is whether the opposite party is justified in prescribing two tablets of ‘Amalar in the first instance though he has diagnosed the disease as Malaria.

8. He admits as R.W. 1 that ‘Amalar tablets may cause ‘Dry Eye Syndrome. Ex. B-1 which is literature for ‘Amalar clearly shows, “For the treatment of cases of Malaria which are resistant to Chloroquine”. It is not shown by the opposite party why he preferred to treat the complainant with ‘Amalar in the absence of any history that she is resistant to Chloroquine. It is also not his case that Chloroquine will not have any effect on the complainant. He admits in his evidence that the complainant is not known to him except when she came to him for this treatment twice. Therefore, he is not aware to which drug she is resistant.

9. The next question is whether the drug ‘Amalar is prone to any reaction ?

10. In Harrisons Principles of Internal Medicine, Thirteenth Edition page 408 Erythema multiforme or Steven-Johnson Syndrome may result due to Sulfonamides. ‘Amalar is admittedly a combination of Sufladoxine and Pyrimethamine. It is also stated at page 604 of the same volume that ‘Pyrimethamine plus Sulfadoxine used for Malaria prophylaxis, may cause severe allergic reactions. It is further shown at page 880 that in Chloroquine-resistant area Pyrimethamine-Sufladoxine can be used. Therefore, it is clear that only on clinical finding that the complainant is resistant to Chloroquine resort to this drug is permissible since this drug is prone to reaction including ‘Dry Eye Syndrome. However the opposite party doctor contends that he has enquired the complainant whether she is allergic to any drugs and when she replied in the negative only he prescribed ‘Amalar. This contention of the opposite party cannot be believed as the complainant is illiterate and marks woman and, therefore, we are not prepared to accept that she has given definite answer that she is not allergic to any drug in spite of the opposite party explaining to her about the dangers of this drug. Under these circumstances the responsibility on the doctor would be more to ensure that there would not be any reaction to the drug. We find that opposite party doctor did not enquire specifically whether the complainant was allergic to Sulpha drugs. He also did not ask the complainant or her husband to observe if there was any reaction and if so, to report immediately. On the other hand when the complainant and her husband informed him about servere reaction the opposite party should have immediately realised that these were the symptoms of drug reaction, and prescribed appropriate drugs immediately. He did not even instruct the patient to take one tablet in the first instance and wait for reaction for some time before taking the second tablet. Under Ex. B-1 the dosage is one to two tablets once weekly. This he did not do. For all these reasons we are of the opinion that the opposite party is negligent in prescribing ‘Amalar to the complainant without any warning and without examining the feasibility of prescribing safe drugs. Prescribing ‘Amalar on the first day on the complainant without following the aforesaid safety measures in the circumstances in our view is a deficiency in service.

11. It is the case of the complainant that after taking two tablets of ‘Amalar she had swollen body figure and in some parts of the body she had visible signs of Ammavaru (rashes like chicken pox). Due to the usage of the drug she could not stand the agony and such as she had to request the opposite party to come and attend on her. But the opposite party refused to attend on the complainant. However, the complainants husband was advised a tablet ‘Cibexinio and Glycerine bottle. The complainant as per the said advice took the tablets and applied Glycerine. Even then she had a swollen body and the rashes and scratches were seen on the body. However, the opposite party maintains that the complainant visited him on 10.10.1987 with burning sensation of tongue and general weakness. In other words his version is that the complainant herself visited him on 10.10.1987 not for swollen body and rashes and general weakness. Ex. A-2 is the prescription issued by him for tablets Cibexinio and Glycerine bottle. We cannot accept this version of the opposite party since he wants to show that even on 10.10.1987 the complainant visited him and there are no visible signs of rashes or swelling of the body. There is no reason for the complainant to come forward with a false story. The complainants version that swelling was incessant due to which she could not stand the agony. Therefore, it is her husband that went and informed her condition to the doctor and requested him to come and attend on her. The opposite party failed to come but prescribed medicines under Ex. A-2. Even the prescription of Ex. A-2 does not accord with the theory of the opposite party but accords more to the version of the complainant.

12. According to the opposite party the husband of the complainant visited him on 13.10.1987 and informed him that the complainant developed rashes and there is lot of itching. Even though he asked him to bring the complainant immediately for examination, the complainant did not turn up. Here again we are unable to accept the version of the opposite party. If the opposite party informed the husband of the complainant to bring her immediately for examination and if they did not turn  up  there  is  no reason why he issued Ex. A-3 prescription ‘Anthical Lotion external application on that day. On the other hand the case of the complainant is that her husband visited the opposite party and informed him about her condition. She stated that her husband and his co-brother visited the doctor even on 3rd and 4th day, evidently 11.10.1987 and 12.10.1987 and requested the opposite party to visit the complainant. Though he promised that he would come after closing the clinic but did not come. On 5th day i.e., 13.10.1987 again her husband informed the opposite party that she had blisters like measles or chicken-pox and he prescribed some lotion for oral application which is Ex. A-3. Even her husband also stated that he informed the opposite party that measles and itching sensation aggravated and, therefore, asked the opposite party to visit the patient. Though he promised to come after closing the clinic but he did not come but only gave a prescription under Ex. A-3. There is nothing to doubt this version of the complainant. When the complainant has developed the reaction to the drug and had visible signs of swelling and rashes over the body the opposite party doctor did not raise his little finger except prescribing some soothing solution or cibexinio tablets. We cannot swallow the explanation that the complainant did not turn up on 13.10.1987 inspite of the directions of the opposite party. The complainant visited him on 9th when she had fever and chills. When that is so she would not fail to visit him when she was facing a more serious problem. Hence we are of the opinion that the opposite party though promised to visit her failed to do so. Here we find that the opposite party did not exhibit proper care to either direct her to an expert to treat her himself with any anti-reaction drug.

13. The learned Counsel for the complainant submits that as there is no proper response from the opposite party or for the medicine prescribed by him the complainant had to visit BBR Hospital where the disease was diagnosed as ‘Steven Johnson Syndrom even on 14.10.1987 as seen from Ex. A-5. Therefore, medicines were prescribed under Ex. A-4 in the said hospital on 14.10.1987 itself. R.W. 1 the opposite party admits that Ex. A-4 is a prescription for drug allergy. The fact remains that the opposite party did not prescribe any medicine for drug allergy even though the complainants husband visited on 13.10.1987. Ex. A-12 is the discharge card issued by Sarojini Devi Eye Hospital to the complainant at the time of her discharge on 4.1.1988. From this card it is seen that she was admitted on 3.12.1987 and was an in-patient for nearly one month. The diagnosis is ‘Steven Johnson Syndrome. As there is no improvement she went to Padmabushan Prof. Dr. P. Siva Reddy. Ex. A-14 is the O.P. Card. It is recorded therein that her vision without glasses Right eye 3/60 and Left eye 2/60 on 23.1.1988. The diagnosis is ‘Steven Johnson Syndrom. She visited him again on 18.2.1988. It is observed under Ex. A-15 by the same doctor that no reflexes visible. She visited him on 3.6.1988, 7.6.1988, 15.6.1988, 2.7.1988, 31.8.1988, 15.10.1988, 18.10.1988, 3.11.1988, 23.11.1988, 2.1.1989, 5.4.1989, 23.8.1989, 13.9.1989, 12.10.1989, 1.12.1989, 31.1.1990, 7.4.1990, 5.5.1990, 14.7.1990, 20.1.1992, 3.3.1993, 4.12.1993 and 29.10.1993 and took treatment. Finally Dr. P. Siva Reddy says that there was no improvement and the final certificate dated 29.10.1993 issued by him under Ex. A-21 shows that she is suffering from ‘Dry Eye Syndrome (Steven Johnson Syndrome) and she is having only perception of light, projection of rays in vision in both eyes. Her visits to Dr. P. Siva Reddy are evident from Exs. A-12 to A-21. Even prior to that Exs. A-7 to A-11 also show her visits to L.V. Prasad Eye Institution which is the premier eye hospital in the city. Ex. A-22 is the family photo of the complainant with her children perhaps to show that her eye sight was normal before treatment. This material clearly shows that she lost her eye sight gradually after taking the drug ‘Amalar. First she had swelling over the body and rashes and gradually she started loosing the sight. By 23.1.1988 as seen from Ex. A-14 she has 3/60 in the left eye. Gradually she lost even that partial eye sight by 29.10.1993. From the evidence on record as discussed above, we are of the opinion that the prescription of ‘Amalar is the cause of loss of eye sight by the complainant and the opposite party failed to react and respond immediately although he came to know that the complainant had reaction of the drug including filthy odour from her nose and mouth as well as swollen body with rashes. For all the above reasons we are of the opinion that the opposite party is negligent in not only prescribing Amalar without observing proper precautions but also for his failure to take appropriate resusciative steps to bring her to normalcy from reaction of the drug.

14. The learned Counsel for the opposite party submits that the complaint is barred by time. The learned Counsel submits that although the complainant visited the clinic of the opposite party on 9.10.1987 and 10.10.1987 the complaint was filed on 17.1.1994 i.e., beyond  two years. The complainant was taking medicine and visiting eye hospitals continuously from 9.10.1987 till the certificate under Ex. A-21 was issued on 29.10.1993 showing that almost she has lost total vision in both eyes. Therefore, we are of the view that the complainant does not know that she would lose her vision totally as the process of loosing vision started after taking the ‘Amalar and it continued till 29.10.1993. Therefore, she has cause of action to file the complaint when she came to know on 29.10.1993 that she has lost the vision in both eyes and that there is no possibility of regaining eye sight. That apart she issued notice to the opposite party under Ex. B-3 to which a reply was given by the opposite party under Ex. B-4 denying every responsibility for the loss of eye sight of the complainant. The denial of liability by the opposite party under Ex. B-4 dated 23.11.1993 also gives rise to cause of action for the complainant to file the complaint within two years from that date. For all these reasons we are of the opinion that the complaint is not barred by time.

15. The next contention of the learned Counsel for the opposite party is that there is no proof of purchase of ‘Amalar tablets as prescribed by the opposite party, that there may be reaction for any other drug that might have been by the complainant and that at any rate there is no proof that Amalar is the cause for drug reaction resulting in the loss of eye sight of the complainant are all surmises without any proof. The pleadings, the evidence and the circumstances discussed above including the complainants evidence as P.W. 1 for which we have no reason to disbelieve, clearly establish that Amalar is the cause for her loss of sight. The complainant has established her case and proved negligence on the part of the opposite party.

16. The next question is what is the reasonable compensation that should be awarded to the complainant.

17. The complainant was aged about 32 years when she visited the clinic of the first opposite party when she had mild fever on 9.10.1987. She is a house wife. She has to look after five minor children out of them four are daughters whose ages are shown as 15, 13, 11, 9 and 7 years. It is in evidence that her daughters could not pursue their studies since they have to attend on their mother. The complainant became totally blind and she requires assistance at all times and throughout her life. She has to take medicines continuously. Had it been otherwise, the complainant would have taken care of the needs of her minor children and looked after them well. The minor children are deprived of the support of the mother. They have also lost their prospects and opportunities for normal and higher education. She would have spent a sum of Rs. 50,000/- towards medical expenses for her treatment for all these years.

18. For all these reasons we are of the opinion that a sum of Rs. 2 lakhs would be a reasonable compensation including medical expenses.

19. We, therefore, direct the first opposite party to pay a sum of Rs. 2 lakhs to the complainant with interest at 12% per annum from the date of filing of the complaint till the date of payment. Out of the amount directed to be paid, a sum of Rs. 3 lakhs (sic.) shall be kept in fixed deposit in the name of the complainant for a period of not less than five years. However the complainant is entitled to withdraw interest periodically either quarterly or monthly.

20. The complaint is accordingly allowed in part with costs of Rs. 10,000/-. Time for payment six weeks.

Complaint partly allowed.