DETAILS Date of Judgment Date of filing Duration

DD MM YYYY 30 05 2023 19 09 2015 11 08 07

IN THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION STATE OF GUJARAT

COURT NO. 2

APPEAL NO. 1184 OF 2015

APPELLANT:

RESPONDENT:

CORAM:

Appearance:

SHRI JAGDISHBHAI MISTRY

64, Parmeshwar Park, Nizampura, Vadodara.

V/s.

Dr. GAUTAM S AMIN (M. D. Psy)

Riddhi Hospital,

3, Ellora Park, Opp. Indraprasth,

Nr. Vegetable Market, Race Course, Vadodara.

Hon’ble Mr. R N Mehta, Member

Mr. P Y Pathak Advocate for appellant Ms. Nita A Shah Advocate for Respondent.

[1].

[2].

(Order by Hon’ble Mr. R N Mehta, Member)

The original Complainant being aggrieved by dismissal of Consumer Complaint no. 385 of 2006 vide order dated 22nd July 2015 of District Forum, Vadodara, preferred this appeal under provision of Sec. 15 of the Consumer Protection Act, 1986 (herein after referred as “The Act” or “Act”) and submits that the impugned order is contrary to law and also against the principles of natural justice and therefore it deserves to be set aside.

For the convenience, parties are addressed herein at its original nomenclature. It was the case of complainant before the District Forum that Hardik, complainant‟s son had psychological problem and was under treatment of Dr. Mayur Hathi. On 22/3/2005, Dr. Hathi referred Hardik to opponent doctor where patient was hospitalised for about two days and since then was under observation and treatment. It was alleged in the

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complainant that during follow up visits the opponent doctor occasionally examined patient and continued with the medicines. It is alleged that though treatment was continuous since four months, condition of patient was not improving and rather worsening. On 26/7/2005, when patient became aggressive the complainant took him to opponent hospital. Even then the opponent doctor continued with same treatment and also added two more medicines. On 5/8/2005, the complainant brought Hardik to opponent hospital and informed that there is no improvement. At this point of time the opponent doctor continued with medicines and asked complainant to visit again where another doctor will review the patient. When complainant visited on next day, he then advised to continue with treatment for ten days. On 29/8/2005, Hardik was admitted for a day and some injection and medicines were administered. On 8/9/2005, patient was prescribed with bunch of medicines and asked to continue the same. It was alleged that on 10/10/2005, the complainant consulted Dr. Yogesh Patel, who then examined all treatment papers, reports, files, and also examined patient physically. Dr. Patel also advised for hospitalisation for about five days and also advised for ECT to ascertain damages to the brain and he had dropped all medicines prescribed by the present opponent doctor. It is further alleged that the said Dr. Patel only prescribed two medicines and complainant‟s son started improving. The complainant stated that he had to consult Dr. Patel again on 19/10/2005 as his son was unable to sleep and when consulted Dr. Patel added one drug from old prescription. Thereafter complainant visited several times with Dr. Patel but he continued with the only medicines and result was Hardik improved and found considerably normal behaviour. The complainant therefore alleged that the opponent doctor failed to diagnose the disease properly and failed to treat patient. The opponent doctor failed to diagnose that Hardik was patient of Schizophrenia. It was alleged that either the opponent doctor was not aware of disease or did not find any other way to control and reduced intensity of the disease.

Before the District Forum, the opponent appeared and filed reply in detail. It was denied that complainant‟s son was suffering from Schizophrenia and under treatment of Dr. Hathi. It is stated by the doctor that on each visit, complainant were reporting the health of patient and he prescribed medicines and it was also informed to him that patient is responding to

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[4].

treatment and therefore the opponent continued with the same treatment. It is denied that merely because longer time took in recovery and because of any alleged excess dosage condition of the patient deteriorated as it canvassed by the complainant. It is stated that complainant never reported that medicines are giving adverse effects on the patient. It is submitted that psychology, symptomatic treatment is required and medicines are changed according to ailments reported by the complainant. It is categorically denied that ECT shown that medicines prescribed by the opponent have damaged brain of the patient. It is also stated that contents of medicines prescribed by Dr. Yogesh Patel and him are similar but only brand of company is different. The opponent denied any negligence on his part. It is submitted that the opponent doctor never dropped any medicines but added according to reporting given by the complainant. It is submitted that he possesses required qualification and competent to treat patient. It is submitted that he had administered medicines for six months and it has started giving response and at that point of time, complainant consulted another doctor and therefore now it is claimed that improvement has come because of administration of drug by Dr. Patel. It is stated that it is never possible or it cannot be miracle that patient may be improved by medicines within short span. The opponent is not agreed with opinion of Dr. Patel.

Heard Mr. Pathak for the appellant. His main submission is that when the complainant‟s son was under the treatment of opponent doctor, his condition deteriorated day by day and the opponent doctor did nothing except prescribing medicines by addition or deletion. It is like trial and error. However, when the patient was seen by Dr. Yogesh Patel, the doctor had dropped all medicines and continued with one or two and though patient had shown improvement. According to Mr Pathak, this shows clearly that the opponent doctor failed to diagnose the correct disease and therefore despite administering medicines for about four months no improvements were observed on the contrary condition was deteriorating.

Record shows that the District Forum heard both parties, perused documents and considered authorities submitted to ascertain whether any negligence has been proved by the complainant in this case. The District Forum also referred medical literature pertaining to OCD disease edited by Joseph Zohar a renowned doctor in the field. The District Forum (herein

[5].

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[6].

after referred as “Forum”) observed that complainant was taking treatment for his son from March 2005 to October 2005 is admitted fact. It is also observed by the Forum that Dr. Yogesh Patel had prescribed medicine known as “SIZOPIN”. It is observed that allegation of the complainant was that opponent doctor failed to diagnose correctly and did not consider the age of patient and which led to damage to the brain. The Forum observed that complainant‟s allegation that the opponent doctor treated complainant‟s son for OCD and not for Schizophrenia and therefore his condition worsened. According to complainant, Clozzpine (Sizopin) is more effective than other antipsychotic and was used by opponent doctor.

To appreciate and adjudicate rival contentions, the Forum also referred medical literature regarding to OCD and Schizophrenia which were produced on record. In the said literature it has been mentioned that Co-occurrence of OCD, bizarre grooming and hoarding in Schizophrenia is well recognised. In summary it was observed that Obsessive compulsive symptoms are common in Schizophrenia and there are clear similarities in terms of natural history and endo-phenotypic factors. In another literature also it has been mentioned that patient with OCD with poor insight the distinction may be more complex, but the absence of typical schizophrenic features can help in differentiation. There is another group of patients in whom the initial manifestations PCD symptoms but who eventually go on to develop typical symptoms of schizophrenia. Furthermore, OCD will be co-morbid in a substantial group of patients with schizophrenia. Several studies have found that about 25 of 355 subjects with schizophrenia have OC symptoms and even around 15-25 % meet criteria for OCD, although the figures differs among studies. It is also observed in the literature pertaining to schizophrenia treatment that diagnosis of schizophrenia is not always easy since the symptoms can resemble those caused by other mental and physical health problems and people with schizophrenia may believe nothing is wrong with them and resist going to doctor. It is further stated that finding the right drug and dosage for schizophrenia treatment is a trial and error process. It also takes time for the antipsychotic medications to take full effect. Some symptoms of schizophrenia may respond to the medication within few days but other takes weeks or months to improve.

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[7].

The Forum also has considered certificate issued by Dr. Yogesh Patel dated 11/2/2006 which reads as under:

“This is to certify that Mr. Hardik J Mistry aged 14 years was seen by me with mixed features of OCD along with Schizophrenia. Although he prevented with symptoms of Obsessive Compulsive Disorder, which usually is very common with Adolescents, as the disease progresses frank symptoms of Schizophrenia became more prominent. Looking the mental status examination on 10/10/2005, I decided to treat him for Schizophrenia. The patient is recovering. It may be noted that medications given for OCD neither cause nor precipitate schizophrenia.”

From the above the District Forum rightly held that when two mix features are available, the doctor has treated any one of it on the basis of his clinical finding, it cannot be said doctor was wrong in administering treatment. When the subsequent treating doctor has make it clear that medicines given for OCD neither cause nor precipitate Schizophrenia then the submission of complainant that condition of the patient deteriorated due to medicines given by the opponent doctor cannot be appreciated unless there is any concrete and corroborative proof or expert opinion on this count. Merely because printed materials of medicines warns about side effects of medicine, it cannot be presumed that side effects have taken place in the case of complainant also. The complainant has to prove it by cogent evidence. The District Forum was perfectly right in holding that medicines prescribed by the opponent doctor were not proved wrong by the complainant. The District Forum also has compared contents of medicines prescribed by opponent doctor and also by Dr. Yogesh Patel and found that both of them have prescribed almost similar contents. Thus merely because names are different, it cannot be said that treatment was wrong.

It is well accepted that negligence as a tort is the breach of duty caused by omission to do something which a reasonable man would do, or doing something which a prudent and reasonable man would not do. A doctor will not be guilty of negligence, if he has acted in accordance with the practice adopted as proper by a responsible body of medical men skilled in that particular art and if he has acted in accordance with such practice then merely because there is body of opinion that takes a contrary view will not make him liable for negligence.

In Indigo Airline Vs Kalpana Rani Debbarma (2020-9-SCC-424) the Apex Court held that the onus of proof that there was “deficiency” in “service” is on the complainant. If the complainant is able to discharge its initial onus,

[8].

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burden would then shift to the respondent in the complaint. The rule of evidence before the civil proceeding is that the onus would lie on the person who would fail if no evidence is led by the other side.

Negligence is logically divisible into four elements. (i). Duty (ii) Breach (iii) Cause in fact / proximate cause and (iv). Harm / damage. An element required to prove negligence by the complainant is the proximate cause; the complainant must prove that his sufferance is reasonably connected to the doctor‟s action, through either the „but for‟ test or the „substantial factor test‟. The proximate cause relates to the scope of a doctor‟s responsibility in a negligence case. A medical error is only considered „negligent‟ if the health care practitioner has failed to take “reasonable Care”. The law does not require a doctor to act “perfectly”, but rather, the law requires that a doctor take “reasonable care” in treating and advising a patient, this is not a high or impossible standard to achieve.

In Dr. (Mrs.) Chanda Rani Akhouri Vs Dr. M A Methusethupati (2022- SCC on line – 481) the Hon‟ble Apex Court observed:

“a medical practitioner is not to be held liable simply because things went wrong from mischance of mis-advertence or through an error of judgment in choosing one reasonable course of treatment in preference to another. In the practice of medicine, there could be varying approaches of treatment. There could be genuine difference of opinions. However, while adopting a course of treatment, the duty cast upon the medical practitioner is that he must ensure that the medical protocol being followed by him is to the best of his skill and with competence at his command.”

In Devarakonda Surya Sesha Mani Vs Care Hospital (2022-4-CPJ-7(SC)) it has been held that unless the appellant are able to establish before the Court any specific course of conduct suggesting a lack of due medical attention and care, it would not be possible for the Court to second–guess the medical judgment of the doctors on the line of medical treatment which was administered to the patient.

In Dr. Harishkumar Khurana Vs Jogindersingh (2021-10-SCC-291) the Hon‟ble Apex Court held as under:

“The hospital and doctors are required to exercise sufficient care in treating patient in all circumstances. However, in an unfortunate case, death may occur. It will be necessary that sufficient material on medical evidence should be available before the adjudicating authority to arrive at a conclusion that the death is due to medical negligence. Even death of a patient cannot, on the face of it, be considered to be medical negligence.”

[10].

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[11].

In Malaykumar Ganguly Vs Dr. Sukumar Mukherjee (2009-3-CPJ-17(SC)) the Hon‟ble Supreme Court held as under:

“for establishing medical negligence or deficiency in service, the courts are guided by following factors, (i). No guarantee is given by any doctor or surgeon that patient would be cured, (ii). Doctor, however, must undertake a fair, reasonable and competent degree of skill, which may not be the highest skill, (iii). Adoption of one of the modes of treatment, if there are many, and treating the patient with due care and caution would not constitute any negligence, (iv) failure to act in accordance with the standard, reasonable, competent medical means at the time would not constitute a negligence. However, a medical practitioner must exercise reasonable degree of care and skill and knowledge which he possesses. Failure to use due skill in diagnosis with the result that wrong treatment is given would be negligence, (v) in a complicated case, the court would be slow in attributing negligence on the part of doctor, if he is performing his duties to the best of his ability

Just because health condition of complainant‟s son took little more time to give response to medicines prescribed opponent doctor it does not mean that they have an automatic right to sue for compensation. It is well established that heavy burden lies on the complainant to prove that there was negligence on the part of the opponent doctor. In the instant case, the District Forum rightly held that it is not established by the complainant that the opponent doctor was negligent in rendering treatment to complainant‟s son and therefore complaint was dismissed. I do not see any reason to interfere with the finding of the District Forum and pass following order.

ORDER

The appeal no. 1184 of 2015 is hereby dismissed. There shall be no order as to cost.

Pronounced on this 30th day of May 2023.

Mr. R N Mehta Member.

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