1. THE grievance put forward by the complainant in this Original Petition is that by reason of alleged negligence and deficiency in service on the
part of Opposite Parties Nos. 1 & 2 namely, Dr. Ashwin Patel, Bombay and Dr. Rajeev M. Warty, Bombay in the matter of properly diagnosing
and treating the illness of her deceased husband Mr. Pramod Verma, who was the only bread-winner of the family supporting of herself and her
two minor sons as well as his aged parents, he died a premature death at the young age of 35 years and hence the Opposite Parties should be
made to pay adequate compensation to her for the irreparable loss caused to the family by reason of their negligence and carelessness.
2. THE complainant''s case as set out in the original petition is that the deceased Shri Pramod Verma, complained of fever on the evening of 4th of
July, 1992. THE complainant called to their residence Dr. Ashwin Patel (Opposite Party No. 1) for examining her husband. THE said Doctor was
residing in the same housing colony and he had treated the members of the family on earlier occasions. THE Opposite Party No. 1 came to the
complainant''s house, examined Mr. Pramod Verma and prescribed certain medicines. According to the complainant, the first Opposite Party
treated her deceased husband from 4th July, 1992 to 6th July, 1992 for viral fever and thereafter from 6th July to 12 July, 1992 he gave medicines
for Typhoid fever without getting done any pathological investigations such as blood test etc. for confirming the cause of the ailment.
The complainant contends that in administering strong antibiotics to the patient initially for treating viral fever and subsequently for Typhoid without
getting the blood test, urine examination etc. conducted, the first Opposite Party was guilty of grave negligence and carelessness and this was
responsible for the deterioration in the patient''s condition necessitating his being admitted into a nursing home as inpatient on 12th July, 1992. The
complainant has also alleged that Opposite Party No. 1 was not qualified or authorized to practice the Allopathic system of medicine and prescribe
Allopathic drugs and his lack of adequate expertise in the Allopathic system of medicine was responsible for deficiency in the treatment
administered by him to the deceased Shri Pramod Verma.
On 12th July, 1992 the patient was admitted to Sanjeevani Maternity and General Nursing Home of Dr. Rajeev Warty (Opposite Party No. 2) on
the suggestion of Opposite Party No. 1 and he continued there under the treatment of the second Opposite Party till the evening of 14th July, 1992
when he was transferred to the Hinduja Hospital in an unconscious condition after its having been found that there were serious abnormalities in his
blood sugar level spinal fluid etc. It is alleged by the complainant that immediately after the admission of the patient into the nursing home of the
Opposite Party No. 2 intravenous administration of Glucose (Dextrose) was started without getting any blood test done for ascertaining the level of
his blood sugar. According to the complainant, the treatment given to the patient by Opposite Party No. 2 in his hospital was not correct or proper
and the condition of the patient had deteriorated mainly because of continuous administration of Glucose (Dextrose) by intravenous drip without
prior monitoring of his blood sugar level. It is also alleged in the petition that despite the steady deterioration in the condition of the patient, the
second Opposite Party kept on assuring the complainant that there was no cause for worry and that her husband would soon become allright and
even though the complainant has suggested that the patient be shifted to a better equipped hospital the said suggestion was not acted upon by
Opposite Party No. 2 until late in the evening of 14th July, 1992 when the complainant was told by Opposite Party No. 2 that the patient who was
already in an unconscious condition should immediately be shifted to Hinduja Hospital.
3. DETAILED counter affidavits have been separately filed by Opposite Parties Nos. 1 & 2. It has been submitted by Opposite Party No. 1 that
he has undergone an integrated course of study in both the Homeopathic and Allopathic systems of medicine and was awarded the D.H.M.S.
Diploma after his having passed the final examination at the end of a four year course conducted by the Homeopathic Medical College, Anand,
Gujarat. Exhibit Annexure R-l is a copy of the said diploma and it shows that the said diploma had been awarded after the candidate had been
examined inter alia in the following subjects: Anatomy, physiology, pathology, Forensic Medicine, Surgery, Practice of Medicine, Hygiene,
Midwifery and Gynecology. Opposite Party No. 1 has stated in his counter affidavit that during the final year of his study in the Homeopathic
Medical College, Anand he had been given training in the Anand Municipal Hospital and also another private nursing home in Anand for a period
of six months. Opposite Party No. 1 was thereafter enrolled as a Registered Medical Practitioner in the States of Gujarat and Maharashtra with
Registration numbers G 649 (Gujarat) and 10197 (Maharashtra). Opposite Party No. 1 has denied the allegations of the complainant that he is not
qualified, competent and authorized to practice the Allopathic system of Medicine. He has submitted that he used reasonable degree of skill and
knowledge in treating the complainant''s husband and had taken reasonable degree of care of the patient while he was under his treatment.
It is further submitted by Opposite Party No. 1 in his counter that after the completion of his studies and obtaining the diploma, he had worked as
Chief Medical Officer as a well known Allopathic clinic by name, Patel Surgical & Nursing Home, Andheri, Bombay from 1983 to 1990 and he
had gained very good experience in examining, diagnosing and treating the patients with complaints of various types of sickness and in prescribing
necessary Allopathic medicines. It is also submitted by Opposite Party No. 1 that late Mr. Pramod Verma and his family had been taking
Allopathic treatment from him for the sickness of the members of the family ever since they moved into the colony about one and a half years prior
to July, 1992 and he had been functioning as their family physician.
4. ACCORDING to Opposite Party No. 1, Mrs. Poonam Verma came to his clinic on the evening of 4th July, 1992 and requested him to see her
husband at her home. ACCORDINGly, Opposite Party No. 1 made a house visit and examined Mr. Pramod Verma in the evening of 4th July,
1992 and on such examination it was found that Shri Verma had fever. Thereupon he prescribed:
(i) Cap. Amplicillin (500 mg. - four times a day) (ii) Tab. Paractiamol (500 mg. 3 times a day) (iii) Tab. Diavol ( 2 times a day) and (iv) Tab. B.
Complex (2 times day)
Opposite Party No. 1 has stated that he gave the above treatment as he felt it may be a case of viral fever which was then very much prevalent in
the locality.
Thereafter on 6th July, 1992 Mrs. Verma called Opposite Party No. 1 again to see her husband and hence he went to examine Mr. Verma at his
house on that day in the evening. It was found that Shri Verma had mild fever and since the fever had continued for the third day, Opposite Party
No. 1 states that he advised Mr. Verma to undergo pathological tests, namely, blood test & urine examination etc. Since enteric fever was
prevalent at that time in the locality in question (Asha Nagar) and neighboring localities of Bombay, Opposite Party No. 1 prescribed Tab. Quintor
(500 mg. 2 times a day for 2 days) in the place of Cap. Ampicillion. It is stated in the counter affidavit that Quintor is a broad-spectrum antibiotic
which is active against the broad-spectrum of gram negative and gram positive bacteria including Enterbacter. According to Opposite Party No. 1,
Mr. Verma thereafter came to his clinic on 8th July, 1992 and on examining him, Opposite Party No. 1 found that he was not having any fever.
Since there was no other complaint also, Opposite Party No. 1 advised Mr. Verma to continue the same treatment for another two days i.e., up to
10th July, 1992. It is further averred in the counter affidavit that on 10th July, 1992 Mr. Pramod Verma again came to the clinic of Opposite Party
No. 1, he had no fever but complained of back-ache. Thereupon Opposite Party No. 1 advised him to continue the same treatment as before and
added a pain killer Tab. Ibuflamor MX 2 times a day for two days. He also gave him an injection Diclonac (3) cc. 1 1/M (intra-Muscular) to the
patient.
Subsequently, at about 10.30 p.m. on the night of 11th July, 1992 the complainant request opposite Party No. 1 to visit her residence to see her
husband. Opposite Party No. 1 thereupon went there and examined late Mr. Verma. It was found that he had again developed mild fever and was
complaining of pain in the shoulder. Opposite Party No. 1 then prescribed for him Tab. Voveron 1 twice daily and Tab. Neopan plus Cap.
Becosulse I twice daily in addition to Quintor and Ibuflamor tablets which he was already taking. The Intra-Muscular injection of Diclonac (3 cc.)
was also given to the patient. It is the definite case of Opposite Party No. 1 that he once again advised Mr. Verma to get pathology investigations
done for blood count, E.S.R., urine routine and widal test and told him to meet him with the investigation reports.
5. ON the next date - 12th July, 1992 at about 1 p.m. Mrs. Verma came to the residence of Opposite Party No. 1 and requested him to see Mr.
Verma at their residence. Thereupon Opposite Party No. 1 visited Mr. Verma at his home and examined him. ON clinicial examination it was
found that he had mild fever and that his blood pressure was 90/70 mm. of Hg. ON the patient being asked about the reports of the pathological
investigations, Opposite Party No. 1 was informed that Mr. Verma had not got them done. Thereupon Opposite Party No. 1 advised the
complainant to get her husband admitted to some physician''s nursing home of their choice for examination, pathological investigations and further
management. It is the case of Opposite Party No. 1 that at that time, Mrs. Verma herself mentioned the name of Dr. Warty (Opposite Party No.
2) and suggested admission of the patient into his Sanjeevani Nursing Home saying that she knew Dr. Warty quite well because she had earlier
been admitted for delivery in Dr. (Mrs.) Warty''s Maternity Home. Opposite Party No. 1 agreed to the said suggestion and gave a medical note
setting out the treatment that he had so far been administering to the patient for being shown to Dr. Warty. The complainant''s allegation that
Opposite Party No. 1 had prescribed strong antibiotics without conducting any pathological investigations is strongly refuted by Opposite Party
No. 1 an incorrect and untrue. He submitted that on the contrary he had specifically advised the deceased Mr. Pramod Verma as early as on 6th
July, 1992 to undergo pathological tests and on finding that the tests had not been got done till then this advise was reiterated on the night of 11th
July, 1992. But, for reasons best known to himself, Mr. Verma ignored the said suggestion also and did not get the investigations done. When it
was found in the afternoon of 12th July, 1992 that the patient was not cooperating in getting the investigations done, Opposite Party No. 1 advised
the complainant to get her husband admitted to some physician''s nursing home for pathological investigation and further management as it was felt
by Opposite Party No. 1 that it would not be prudent or correct to proceed with the treatment of the patient without getting the requisite
pathological investigations done.
6. OPPOSITE Party No. 1 has submitted that the treatment administered by him to late Pramod Verma was correct in every respect and there
was no negligence, carelessness or deficiency of any kind on his part in relation to the said treatment given to the deceased Shri Verma during the
period 4th July, 1992 to 12th July, 1992.
In the counter affidavit filed by Opposite Party No. 2 a preliminary objection has been raised questioning the applicability of the Consumer
Protection Act to the medical practitioners. His contention is that the service rendered to a patient by a medical doctor is under a contract of
personal service and is, therefore, covered by the exception contained in Section 2(o) of the Act
On the merits, Opposite Party No. 2 has submitted that he is a qualified Consultant Physician holding Post Graduate Degrees of M.D. (Bombay)
and M.C.P.S. (Bombay) and having Registration No. 49359 of the Maharashtra Medical Council. The Sanjeevani Maternity & General Nursing
Home is jointly owned by this Opposite Party and his wife who is a Gynecologist. Opposite Party No. 2 has denied the complainant''s allegation
that there was any negligence involved in the patient, late Mr. Verma having been given intravenous Dextrose after his admission to this Opposite
Party''s nursing home. According to Opposite Party No. 2 late Mr. Pramod Verma had himself given at the time of his admission into the nursing
home a detailed history regarding his State of health and he had specifically stated that he had no history of Diabetes Mellitus. He had been
admitted into the nursing home at about 7 p.m. on 12th July, 1992 for Pyrexia (fever) of unknown origin with a blood pressure of 90/60 mm. Hg.
he had complaints of fever, cough and general malaise. It was found on examination that he had low grade fever, signs of respiratory infection and
had soft, tender, just palpable liver. He was otherwise a symptomatic and his clinical studies did not warrant any emergency investigations on
Sunday night at about 9 p.m. Hence, he was started on broad-spectrum antibiotic cover and other symptomatic treatment. Since he had no past
history of Diabetes and no clinical evidence indicative of Diabetes Mellitus, he was given intravenous fluids to maintain his caloric requirements. On
the following morning, i.e. Monday the 13th July, 1992 primary routine investigations such as Hemogram, urine examination and widal test were
conducted, as the patient had been previously suspected to have enteric (Typhoid) fever. The reports of those investigations were received in the
evening of the same day (13th July) and they showed no abnormality other than a raised white blood cell count and a high E.S.R. But the patient''s
urine examination showed absence of sugar. Acetone and Action Acetic Acid which fact clearly mitigates against any diagnosis of Diabetes
Mellitus especially when prior to the time of examination the patient had already been given intravenous Dextrose. Except for symptoms of cough
and low grade fever, the patient had been otherwise normal and hence no change was made in the treatment on 13th July, 1992.
7. ON the following morning, i.e., Tuesday the 14th July, 1992 at about 10 a.m. on examination, the patient was found to be drowsy and was
found to have wetted his clothes. The patient''s wife - the complainant - and other persons attending on him were immediately informed about this
and a decision was taken to call a Neurology Specialist and obtain his expert opinion. Accordingly, Dr. Ashok Sirsat, a Senior Consultant
Neurologist, was contacted at about 11 a.m. Dr. Ashok came to see the patient the same day at about 12 noon and in view of the clinical findings
and suspected inflammatory Encephalopathy, a lumbar puncture for Cerebro spinal fluid examination was advised by him. The complainant was
duly informed about the said opinion given by Dr. Ashok and with her consent the lumbar puncture was performed by Dr. G.V. Geroor, an
Anaesthetist and the fluid was sent to a well known laboratory for urgent pathological examination. Similarly, on the advice of Dr. Ashok Sirsat,
Serum chemistry analysis was also asked to be conducted in view of the altered level of consciousness of the patient in order to assess metabolic
status. ON that day by about 12.30 in the afternoon a Rhyles tube and a urinary catheter were passed for ensuing the nutritional sufficiency and for
proper care and continuous monitoring of the patient''s conditions. At about 5 p.m. on 14th July, 1992 the reports of serum chemistry analysis
became available and they showed a general and metabolic state in the form of abnormal liver function, abnormal kidney function and a high
random blood sugar. The laboratory to which the cerebro spinal fluid had been sent for pathological examination was then immediately contacted
by Opposite Party No. 2 on telephone to ascertain the result of the said examination. It was found that as per the report, the sugar level in the
cerebra spinal fluid was high and this corresponded to the blood sugar level in the serum chemistry report. The complainant and other relatives of
the patient present in the nursing home were informed by Opposite Party No. 2 about the abnormalities noted in the reports. ON the basis of the
said clinical data, the Neurologist Dr. Ashok Sirsat was once again contacted by Opposite Party No. 2 on telephone and he advised that a C.T.
scanning should immediately be conducted. This meant that the patient would have had to be shifted to a larger institution where the said facility
was available. The matter was then explained to the complainant and other relatives of the patient and since the patient''s general condition was
such that unnecessary to and for shifting of the patient should be avoided, a decision was taken to transfer the patient to the Hinduja Hospital for
C.T. scanning and also for further treatment. The consent of the complainant was specifically taken for the said course of action. The patient was
accordingly shifted from the Nursing Home at 7 p.m. on 14th July, 1992 by which time he had started developing right side facial twitches. A
summary of the case prepared by Opposite Party No. 2 was sent alongwith the patient and a personal note from Opposite Party No. 2 was also
sent to the Radiologist at the Hinduja Hospital, who happened to be a past colleague of the Opposite Party No. 2 requesting him to render all
possible assistance to the patient and his relatives.
Opposite Party No. 2 has denied that there was any negligence, remissness, lack of due care or deficiency in the treatment that was given to the
patient while the patient was under his care in the Sanjeevani Nursing Home. It has been submitted by Opposite Party No. 2 that since the patient
did not have any past history of Diabetes there was nothing wrong in his having been administered intravenous fluids (Dextrose) which was fully
necessary to maintain his caloric requirements. Opposite Party No. 2 has stated that on the night of 12th July, 1992 itself a strip test of the
patient''s urine had been conducted at the nursing home immediately after Opposite Party No. 2 had examined the patient, for the purpose of
finding out whether there was any sugar in the urine and the result of the test was wholly negative. It was in view thereof that the intravenous
administration of Dextrose was continued after 9 p.m. It is submitted by Opposite Party No. 2 that it is highly significant that the urine examination
which was done on 13th July, 1992, more than 12 hours after the admission of the patient to the Nursing Home had showed absence of sugar.
Acetone and Actio Acetic Acid inspite of the patient having been on intravenous Dextrose during the previous night and this clearly indicated that
the administration of glucose had not caused the patient any harm or injury. It was only on 14th July, 1992 when the Serum chemistry analysis was
conducted that it was disclosed that the functioning of the liver and the kidney were both abnormal and there was also a high blood glucose level
which might be attributed to the fact that the blood sample was drawn at a time when intravenous administration of glucose was in progress.
Thereupon, the administration of Dextrose was immediately discontinued.
8. OPPOSITE Party No. 2 further submits that the utmost caution, attention and care had been exercised by him in the treatment of the patient,
that all necessary investigations and test were done from time to time but in spite of the best care the condition of the patient deteriorated because
of the development of neurologycal complications etc. which were probably caused by virus encephalitis. In the best interest of the patient, as soon
as there were symptoms warranting such complication being suspected, as well known consultant specialist in Neurology was called in to see the
patient and acting on his advice a lumbar puncture was performed and the Cerebro spinal fluid extracted by the said process was pathologically
examined. The Serum chemistry analysis of the patient was also simultaneously got done. As serious abnormalities were disclosed by both reports
the neurologist was again consulted over the telephone and in view of his suggestion that a C.T. scan should be immediately got done. The patient
was advised to be shifted to the Hinduja Hospital where the patient''s condition could be better maintained after having the C.T. scanning done to
assess the precise nature of the neurological abnormality. The charges of negligence, and lack of due care and deficiency in service have been
stoutly denied by OPPOSITE Party No. 2 and it is submitted that the complaint should therefore, be dismissed.
Both the Opposite Parties Nos. 1 & 2 have produced several documents as annexures to their counter affidavits containing details regarding the
treatment administered by them to deceased late Shri Pramod Verma and extracts from medical textbooks dealing with topics of Diagnosis and the
treatment of conditions of viral fevers, virus Encephalitis etc. On the side of the complainant, she has examined herself as PW No. 1. Opposite
Party No. 1, in addition to giving his own testimony as R.W. No. 1, has also adduced the evidence of an independent witness who is a consultant
physician from Ahmedabad Dr. Jitendra V. Patel, R.W. No. 2 for substantiating his case.
Opposite Party No. 2 has examined himself as R.W. No. 3. We have carefully studied the oral and documentary evidence adduced in the case
and bestowed our anxious consideration on all aspects which are germane for a determination of the main issue arising for decision namely,
whether any negligence, lack of due care and attention or deficiency of any kind has been made out by the complainant as against either or both of
the medical doctors figuring as Opposite Parties Nos. 1 & 2 in relation to the treatment administered by them to deceased Shri Pramod Verma. In
addition to the affidavits filed by her the complainant has relied only on the oral testimony given by herself as PW 1. The case put forward by her
against the first Opposite Party Dr. Ashwin Patel is that when she had called the said Doctor to her residence for treating her deceased husband
who was having fever on the evening of 4th July, 1992, the said Doctor prescribed strong antibiotics without conducting any pathological test to
ascertain the exact nature of the ailment. Her further version is that on the 6th July, 1992, the first Opposite Party was again called to her residence
to see her deceased husband whose fever was persisting and then also he did not advise any pathological tests to be conducted but merely
continued the administration of antibiotics. Subsequently, when the said Doctor was again called after four days, he changed the medicine saying
that the disease may be typhoid and even though she asked the Doctor whether tests should be conducted, the Doctor had replied in the negative
stating that there was nothing to worry. Based merely on the assumption that the patient may be suffering from typhoid, the Doctor changed the
medicine and prescribed Tab. Quinter 500 mg., which the complainant alleges was a high dose. PW 1 has gone on to state that on the 12th July,
her husband felt very weak in the evening and hence the first Opposite Party was again consulted and then he straightway advised her to admit the
deceased Mr. Pramod Verma in the Sanjeevani Nursing Home of Dr. Rajeev M. Warty (Opposite Party No. 2) and accordingly the patient was
got admitted in the second Opposite Party''s nursing home at about 7 p.m. on the 12th July, 1992.
9. AS against the aforesaid version of the complainant, the first Opposite Party, Dr. AShwin Patel has given detailed evidence as to the treatment
given by him to deceased Mr. Pramod Verma. He has sworn that Mr. Pramod Verma and all the members of the family used to come to him
regularly for treatment whenever they fell sick, ever since they came to stay in ASha Nagar Colony (where the witness also resides) about one and
half years prior to July, 1992. R.W. 1 has sworn that on 4th July, 1992, the complainant had come to his ASha Nagar Colony clinic and requested
him to visit her husband because he was having mild fever with generalized body aches. He went to their residence and examined the patient and
prescribed Cap. Ampicillin, Tab. Paracetamol, Tab. Diavol and Tab. B. Complex. The medicines were prescribed for a period of two days. On
the 6th July, 1992, the complainant again requested the witness to see deceased Mr. Pramod Verma at his residence. It was found that the patient
was still having fever and hence the first Opposite Party advised the deceased to get a blood investigation and urine examination done. Viral fever
and also enteric fever were prevalent in epidemic form in ASha Nagar Colony at that time and hence the witness told the deceased Mr. Pramod
Verma and the complainant that it might be possibly either viral or enteric fever. Hence he prescribed a broad-spec trum antibiotic-Quinter-on the
basis of the said diagnoses. On the 8th July, 1992 late Mr. Pramod Verma visited the clinic of the second Opposite Party and the Doctor
immediately asked him whether he had got the pathological investigations done but was told that he had not got the tests done. The patient was
however feeling much better and there was no fever. The witness asked him to continue the same treatment for a couple of days more. The
deceased Mr. Pramod Verma again came to his clinic on the 10th July, 1992. At that time also he had no fever but he was complaining of body
ache. The witness gave to the patient one injection Diplomacy Sodium (3 cc.) and prescribed a pain killer-Ibuflamar MX. On he night of 11th July,
the complainant called at the residence-cum-clinic of the witness and requested him to visit her husband for seeing her husband. The witness went
there and examined the deceased Mr. Pramod Verma. He then had fever. Thereupon the witness advised the deceased Mr. Pramod Verma to get
blood test (C.B.C. with E.S.R.), urine routine and widal test done so that the exact nature and cause of the fever may be determined. The witness
gave a chit to the laboratory requesting them to conduct the examination early morning on the next day despite its being Sunday. At about 1 p.m. in
the afternoon of Sunday, the 12th July, 1992, the complainant came to the residence of the witness and told him that her husband was still not well.
The witness then went to the residence of deceased Mr. Pramod Verma and examined him. On checking the blood pressure, it was found to be
only 90/70 and the patient was also running temperature. On making enquiry about the result of the investigations that he had advised to be
conducted, the witness was informed that the tests had not been got done, The witness being of opinion that pathological investigations were
required (blood test, urine test) and there should also be proper patient management, the witness advised the complainant to transfer the patient to
any good hospital or Nursing Home. Thereupon Mrs. Verma asked the opinion of the witness atrium her proposal to admit the patient in the
Sanjeevani Nursing Home stating that she had already been a patient in the said Nursing Home for her child birth (delivery) and hence knew Dr.
Warty and Dr. (Mrs.) Warty very well The witness replied by stating that the choice of the hospital or Nursing Home was entirely left to the
complainant and if she preferred to admit her husband to the Sanjeevani Nursing Home, it was quite all right. Thereafter the witness gave a brief
note to Dr. Warty setting out details of the treatment already given by him to the deceased Mr. Pramod Verma.
10. DR. Ashwin Patel impressed us as a truthful and knowledgeable witness. We have no hesitation to accept as true the version given by him that
he had specifically advised late Mr. Pramod Verma to get the blood test, urine test etc. done as early as on 6th July, 1992 (the third day of fever)
and that he had again reiterated the said advice to late Mr. Verma on the 11th July, 1992. However, for reasons best known to him, the deceased
Mr. Verma did not follow the said advice and the pathological investigations were not got done. We are inclined to think that it may be because the
advice to get the blood test etc. done was given by R.W.I to late Mr. Pramod Verma and not to the complainant, the complainant may not have
been aware of the fact of such advice having been given and hence it is that she had asserted in her evidence that DR. Ashwin Patel did not advice
any tests to be conducted but went on blindly administering strong antibiotics. We hold that the said charge leveled against DR. Patel is not well
founded. As regards the question whether the treatment given by DR. Patel (R.W. 1) to deceased Mr. Pramaod Verma can be said to have been
in exercise of reasonable degree of care and skill expected of a qualified physician treating a patient with those symptoms in that situation, we have
the clinching testimony given by a totally disinterested expert witness DR. Jitendra V. Patel (R.W. 2) who is a highly qualified Consultant physician
practising in Ahmedabad. He has categorically testified that the first prescription of Cap. Ampiciltin plus Tab. Paracetamol plus Tab. Diavol and B.
Complex given by R.W. 1 to deceased Mr. Pramod Verma on 4.7.1992 was correct in every respect and he himself would have prescribed the
very same medicine to a patient in that situation. The witness has further stated that on its being found that the fever was presisting for the third day
on 6th July, 1992, DR. Ashwin Patel was perfectly justified in switching over from Ampicillin to Tab. Quinter (500 mg.) since the latter can cover
almost all pathogens i.e. Gram Positive and Gram Negative including even the organism causing Typhoid (enteric) fever. According to the witness
the said change over of medicine made by Opposite Party No. 1 was fully justified inasmuch as the said medicine Quinter would be beneficial to a
patient even it was a case of enteric fever which fact could be determined only by performing a widely test after a period of 7 days from the on set
of the disease. To a specific question put to the witness as to whether in his professional opinion DR. Ashwin Patel had acted correctly prescribing
the aforesaid medicine Quinter 500 to a patient, the witness has replied that the first Opposite Party had acted absolutely correctly. He has further
testified that if he himself had been handling the case up to the 12th July, 1992, he would not have advised shifting of a patient to a hospital earlier
than on the 12th July since it was only a one week old fever without any ""systematic invasion"" particularly having regard to the fact that in between
the 4th July and the 12th July, 1992, the patient had no fever on two days and on those days he had gone in person to the clinic of DR. Ashwin
Patel. Nothing has been brought in cross-examination to cast any doubt on the credibility of the testimony given by this witness.
In Bloam v. Priern Hospital Management Committee (1957-I-WLR-582) Mc Nair, J. has enunciated the test to be applied for determine whether
negligence is made out against a medical Doctor. He held:-
A Doctor is not 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....
We are of opinion that it has been convincingly established by the testimony of R.W. 2 whom we regard as a reliable and disinterested expert
medical witness that there was no negligence or want of reasonable degree of care and skill on the part of the first Opposite Party Dr. Ashwin
Patel in the treatment given by him to late Mr. Pramod Verma during the period 4.7.1992 to 12.7.1992. The charge of negligence levelled against
the first Opposite Party is, therefore, rejected as baseless.
Reference has already been made to the plea raised by the complainant that the first Opposite Party was not a qualified allopathic Doctor and he
was not entitled to prescribe allopathic drugs. Except for raising this plea and reiterating it in the course of her deposition, the complainant has not
made any serious efforts to substantiate the said contention. The evidence on record shows that the first Opposite Party has undergone an
integrated four years course of study in both Homeopathic and Allopathic systems of medicines, at the Homeopathic Medical College, Anand,
Gujarat and had been awarded the D.H.M.S. Diploma. Annexure R-1 is a Photostat copy of the D.H.M.S. Diploma conferred on the first
Opposite Party by the Council of Homeopathic System of Medicines, Gujarat, on 30th July, 1984. It is specifically stated therein that the awardee
of the Diploma namely, the first Opposite Party had been examined inter alia in the following subjects:
1. Anatomy 2. Physiology 3. Pathology 4. Forensic Medicine 5. Hygiene 6. Practice of medicine. 7. Surgery 8. Midwifery and Gynaecology;
which are all subjects pertaining to the study of the Allopathic System of medicine. After obtaining the aforesaid Diploma, the first Opposite Party
got himself enrolled as a registered medical practitioner originally in Gujarat and subsequently in Maharashtra also. He has sworn that prior to
obtaining the Diploma, during the final year of study himself along with other students of his batch had been given training in Anand Municipal
Hospital as well as in another Nursing Home in Anand for a period of six months. After taking the Diploma and getting Registration from
Maharashtra Government he had worked as Chief Medical Officer at an Allopathic clinic in Bombay by name Patel Surgical Nursing Home from
1983 to 1990, and he had gained good experience of examining, diagnos ing and treating patients, complaining of various types of sicknesses and
prescribing necessary Allopathic medicines.
11. IN his testimony as R.W. 1 Dr. Ashwin Patel has sworn that late Mr. Pramod Verma and members of his family had regarded him as their
family physician and were taking his treatment for about one and half years prior to July, 1992 and they had taken Allopathic medicines from him
for their sickness.
In her testimony as PW1, the complainant has stated that she as the member of her family used to go to Dr. Ashwin Patel for receiving Allopathic
treatment from him. None of the rules or regulations of the Medical Council, Maharashtra or the State Government of Maharashtra governing the
eligibility of persons for practicing Allopathic system of medicine in the State of Maharashtra have been made available to us by either side. On the
evidence available on record, all that can be inferred is that persons who have passed the Integrated course referred to above and have obtained
the D.H.M.S. Diploma seem to have been generally accepted as eligible to practice the allopathic system of medicine in the States of Gujarat and
Maharashtra. Anyway, the complainant and her husband had themselves approached the first Opposite Party for allopathic treatment and it has
been found by us that the treatment administered by Opposite Party No. 1 to deceased Mr. Pramod Verma was not vitiated by any lack of due
skill, care and attention and there was no negligence at all on his part in the matter of giving proper treatment to the patient.
12. IN the light of what we have stated above, we hold that the allegations of negligence etc. leveled against the first Opposite Party are not well
founded, and that the claim made by the complainant for recovery of compensation from the first Opposite Party has only to be rejected.
Coming to the case put forward by the second Opposite Party-Dr. Rajeev M. Warty in whose Sanjeevani Nursing Home the deceased Mr.
Pramod Verma had been treated from the evening of 12th July to about 7 p.m. on 14th July, the main plea put forward by the complainant is that
there was carelessness and negligence on the part of the second Opposite Party in having commenced the administration of Intravenous Glucose
drip to the patient immediately after he was admitted in the second Opposite Party''s Sanjeevani Nursing Home without taking the elementary
precaution of conducting a blood test and making sure that the patient was not Diabetic. We have carefully examined the said contention in the light
of oral and documentary evidence which includes laboratory reports containing the findings of the examination of the patient''s blood and urine
conducted on 13th July, 1992 as also the cerebro spinal fluid examination and serum chemistry conducted on 14th July, 1992.
From the oral evidence of the complainant itself it is clear that the version given by her that no test for the sugar content in the patient''s blood and
urine was conducted on 13th July, 1992 cannot be accepted as correct. It has come out in her testimony that she was away from the hospital for a
period of about two hours in the morning on 13th July when she had gone to her house to attend to her young children who were along there.
Hence she could not have known as to what all tests were got done on the patient by the Hospital authorities during the period of her absence.
Appendix-J contains copies of the reports of examination of blood and urine analysis performed in respect of late Mr. Pramod Verma on
13.7.1992. It is significant that the urine analysis report discloses that there was no sugar in the urine of the patient which was taken on the morning
of 13.7.1992 despite his having been continuously on intravenous administration of dextrose from the evening of the previous day. We also see no
reason to doubt. the truth of the version sworn to by Dr. Warty as R.W. 3 that he was not in the Nursing Home at the time when late Mr. Verma
was admitted there as an inpatient and the preliminary examination etc. of the patient were done by his assistant, who started a glucose drip on
finding that there was general debility in the condition of the patient. When R.W 3 came to the hospital at about 9 p.m. he conducted a thorough
independent examination of the patient and gathered from the patient himself details regarding his previous health history. In the course of narrating
his past history of health the patient told him that he had no history of diabetes. Nevertheless, soon after his examination of the patient on the night
of 12th July, R.W. 3 as a matter of abundant caution, submitted the patient''s urine to a strip test and found that there was no indication of the
presence of sugar in the urine and it was only thereafter that he directed the intravenous administration of dextrose to be continued. According to
R.W. 3, the condition of the patient was satisfactory till about 10 a.m. on the morning of 14th July 1992. But the complainant has sworn that
deterioration in the patient condition was noticed on the night of 13th July, 1992 when he allegedly wetted his bed. We find that the testimony given
by PW 1, the complainant, is a little confused as to the date and point of time at which the bed wetting and change of behaviour on the part of the
patient had occurred. We accept as true the evidence by Dr Warty that it was only at about 10 a.m. on 14th July that the patient was found to be
in a drowsy state, irritable and uncooperative. Immediately thereupon the suspected that these were indicative of neurological involvement of the
central nervous system and he suggested to the complainant that aneminent Neurologist may be called for consultation. With the approval of the
complainant, Dr. Ashok Sirsat, a Senior Consultant Neurologist we requested to come down to see the patient. In view of the altered level of
consciousness, the second Opposite Party also arranged for conducting a serum chemistry analysis of the patient. At around 12 noon on
14.7.1992, the Neurologist, Dr. Sirsat, came to see the patient and gave his opinion that in his opinion there was some form of inflammation in the
brain and meanings and he advised that a lumbar puncture should be done and the extracted cerebro spinal fluid should be sent for examination.
Around 1 p.m. the lumbar puncture was done by a competent Anesthetist assisted by the second Opposite Party and the cerebra spinal fluid was
sent for analysis. Since the condition of the patient was such that he could not be fed through the mouth and he had no control over urination, the
second Opposite Party passed a feeding tube as well as a catheter. The second Opposite Party has sworn that it was only while passing the
feeding tube that the patient became irritable and tried to bite the nurse''s hand and this took place at about 1.30 p.m. on the 14th July, 1992. We
see no reason why this version sworn to by R.W. 3 should not be accepted as true. At about 2.30 p.m. serum chemistry analysis results were
received and it was seen therefrom that they were abnormal; the kindly function test was abnormal, so was the lever function and the blood sugar
was high. In view of the blood sugar having been noted as high, the administration of glucose was immediately stopped. On ascertaining the result
of the cerebra spinal fluid examination from the concerned laboratory over the telephone at about 6 p.m. it was learnt that abnormalities had been
found and they were indicative of neurological involvement. The expert Neurologist was again consulted over the phone and he opined that a C.T.
scan should be immediately taken. According to the testimony of Dr. Warty he then explained the situation to the complainant and recommended
that the patient may be shifted for investigations and further treatment to Hinduja Hospital where the C.T. scan facility etc. were all available. The
patient was accordingly shifted to Hinduja Hospital at 7 p.m. on 14.7.1992.
13. WE see no factual foundation for the allegations of the complainant that during the period about 7 p.m. on 12.7.1992 to 7 p.m. on 14th July,
1992 when deceased Mr. Pramod Verma was inpatient in the Sanjeevani Nursing Home of the second Opposite Party, there was negligence or
lack of due care and attention on the part of the second Opposite Party and his hospital staff and that it was as a result thereof that the condition of
the patient had deteriorated necessitating his abrupt transfer to the Hinduja Hospital. On looking into the records containing the details of the
treatment given to the patient in the Sanjeevani Nursing Home, we find that the patient had been treated with due care, attention and expertise and
there had been no carelessness or negligence on the part of the second Opposite Party or other members of the staff of his Nursing Home. Since
the patient had been admitted with a history of mild fever of about six days duration, he was put on broad-spectrum antibiotic in continuation of the
treatment with antibiotics which had already been given to him by Dr. Ashwin Patel, the first Opposite Party. Intravenous dextrose was given for
maintaining the patient''s caloric requirement. The evidence shows that when deceased late Mr. Pramod Verma was admitted to the Sanjeevani
Nursing Home, the second Opposite Party was not present in the Nursing Home and it was his attendant who had initially attended to the patient.
When Dr. Warty came to the Nursing Home, a little before 9 p.m. he conducted independently a thorough examination of the patient including the
record of patient''s own version about his past health history. Despite the patient having informed him that he had no history of diabetes, the second
Opposite Party got the patient''s urine tested for sugar at about 9 p.m. on 12.7.1992 by conductinga strip test and the result was found to be
negative. It is only thereafter that he gave instructions for continuing the administration of dextrose. At the time of late Mr. Verma''s admission in the
Nursing Home or at any subsequent stage during the night of the 12th July, 1992, there was nothing in the patient''s condition which called for any
immediate pathological investigation. On 13.7.1992, the second Opposite Party ordered preliminary investigations consisting of a hologram
(complete blood count with E.S.R.), routine urine test and a widely test to be got done on the patient since no such investigations had been carried
out on him prior to his admission. The investigation reports which have been produced in this case show that there was no sugar in the patient''s
urine despite the fact that the patient had been continuously on intravenous administration of dextrose since he previus evening. However, they
showed a raised C.B.C. count and raised E.S.R. indicating the presence of an infection. But there was nothing in the reports suggestive of anything
being seriously wrong with the patient at that time. The urine report of the deceased Mr. Pramod Verma dated 13.7.1992 showed absence of an
acetone bodies thereby indicating that the administration of glucose had not caused any harm and as per the said blood examination report the
blood sugar level was not high. In view of these pathological reports we cannot accept the contention put forward by the complainant that the
failure of the multiorgan system of the deceased had been caused by reason of the administration of intravenous dexterous drip. On the other hand,
the absence of sugar, acetone and aceto acetic acid in the urine of the deceased which was subjected to test on 13.7.1992 and the absence of bile
salts and bile pigments and presence of normal amounts of urobilinogen in the patient''s blood clearly indicate that as on 13.7.1992 he had no
diabetes mellitus and that his liver function and kidney function were normal.
14. ACCORDING to the medical certificate regarding cause of death of late Mr. Verma issued by the Hinduja Hospital as per Appendix Y & Z
with a narrative summary, the immediate cause of death of the patient is stated to have been cardio-respiratory arrest'' with ""septicemia with
metabolic acidosis"" and encephalitis ""possibly viral (Brain fever) with Diabetes Mellitus"". In Harrison''s Principles of Internal Medicine Twelfth
Edition Volume 1, it is stated that ""Septicemia and septic shock are dramatic clinical syndromes which result from acute invasion of the blood
stream by certain microorganisms or their toxic products"". The case papers and investigation reports relating to the clinical status of the patient and
the results of the pathological examinations do not disclose that the patient was having any serious complaints at any time between the evening of
12th July, when he was admitted into the Sanjeevani Nursing Home and the morning of 14th July. But there was an abrupt change in the patient''s
condition on 14th July at about 10 a.m. He was drowsy and noncooperative and started showing signs of neurological involvement. From the
extracts from medical text books produced before us it is seen that such a sudden onset of neurological comlaint is quite common in the case of
viral encephalitis. At pages 20 to 32 of Volume II of Harisson''s Principles of Internal Medicine (Twelfth Edition) while dealing with the clinical
picture of viral encephalitis it is stated that ""The onset of neurological symptoms is abrupt. There is a sudden change in the patient''s state of
consciousness with lethargy, drowsiness and stupor"". It is also found to be stated in the text book that viral fevers do not show any special
symptoms except for a rise in temperature sometimes accompanied by head-ache, bodyache etc. until the fifth or sixth day when it may suddenly
turn to any disease such as measles, chicken-pox or encephalitis etc. In the present case, it is only at about 10 O''clock on the morning of 14th July
and thereafter that Symptoms of neurological involvement progressively manifested themselves in the shape of drowsiness, bed wetting, refusal to
cooperate, twitching of the right side etc. As soon as the first of these symptoms was noticed by the second Opposite Party he carried out a
detailed examination of the cardiovascular and respiratory system of the patient and also conducted an abdominal examination. But no abnormality
was found. The examination of sensory system, mortar system and reflexes of the patient also revealed nothing abnormal and there were no signs
of mningeal irritation. However, the second Opposite Party considered it necessary to have the patient seen by a senior consultant neurologist and
hence, with the consent of the complainant and other relatives, he contacted Dr. Sirsat, a well known neurologist of Bombay at about 11 O''clock
on 14th July, 1992. Even prior to this he had given instructions for a serum chemistry analysis to be sconducted so that the kidney function test,
liver function test and blood sugar analysis may be got done on the patient. These metabolic tests were carried out on the morning of 14th July,
1992 itself soon after the change in his condition was noticed. Around 12 O''clock in the afternoon of 14th July Dr. Sirsat, Neurologist, came to
the nursing home and examined the patient. In the light of the findings noted him he had a discussion with the second Opposite Party
ACCORDING to the opinion of Dr. Sirsat, there were signs on mnage irritation which were not there when the second Opposite Party examined
the patient shortly after 1.0 O''clock. In view of this progressive change, Dr. Sirsat was of the opinion that there was some form of inflammation in
the brain and mnage irritation and hence a lumbar puncture should be performed for extracting the cerebra spinal fluid for pathological examination.
ACCORDINGly, with the consent of the complainant the lumbar puncture procedure was done by a competent Anaesthetistassisted by the
second Opposite Party and the extracted fluid was sent to a well-known laboratory for urgent examination at about 1 p.m. The reports of serum
chemistry analysis were received early in the evening on 14th July and they disclosed that the result of the kidney function test and liver function test
were abnormal and the blood sugar level had also risen high. On examination of the patient at about 6 p.m. it was found that the temperature had
risen to 101 F. As soon as the serum chemistry report showing rise in the blood sugar level was received the administration of glucose drip was
stopped by the second Opposite Party. The second Opposite Party obtained particulars of the results of the pathological examination of the
cerebra spinal fluid later in the evening on 14th July and the said report also showed some abnormality inclusive of high C.S.F. sugar. The contents
of the said reports were communicated by the second Opposite Party to Dr. Sirsat, Neurologist over the telephone and his advice was sought. He
opined that it was likely to be a case viral encephalities and that a C.T. scan should immediately be got done by way of further investigation. Since
the said scanning facility was not available in the second Opposite Party''s Nursing Home, it was decided, in consultation with the complainant and
other relatives of the late Mr. Pramod Verma, that instead of moving him to and fro for getting the C.T. scan investigation done, he may be shifted
to the Hinduja Hospital for C.T. scanning and kept there for further treatment also Asummary of the case was prepared by the second Opposite
Party to be given to Hinduja Hospital and he also gave a personal note to one Dr. Manohar Shroff, the doctor in-charge of the C.T. scan
Department of the Hinduja Hospital requesting him to render all help in the matter of proper investigation being conducted and prompt treatment
being given to the patient. The patient was accordingly shifted to the Hinduja Hospital from the second Opposite Party''s Nursing Home at about 7
p.m. on 14th July. His condition thereafter deteriorated and he expired at Hinduja Hospital at 00.30 a.m. on 15th July, 1992. From the narrative
summary issued by the Hinduja Hospital on 21st July, 1992 it is seen that the patient sustained cardiovascular respiratory arrest to about 11.15
p.m. on 14th July and revival measures continued till 00.30 hrs. On 15th July when they were stopped and the patient could not be revived
From the facts narrated above, it will be seen that inspite of due medical care and proper attention having been given to him at the second
Opposite Party''s Nursing Home and prompt action having been taken for proper investigations etc. from time to time neurological complaints
unfortunately set in, which cannot in our opinion, be attributed to any negligence or lack of reasonable skill in the medical treatment that was given
to or the care and attention that were bestowed on the patient by the second Opposite Party and other members of the Sanjeevani Nursing Home
during the period when the deceased was an inpatient in the said hospital. We hold that the complainant has totally failed to substantiate the
charges of negligence and deficiency in service levelled by her against Dr. Rajeev M. Warty, the second Opposite Party in this case.
It follows from the aforesaid findings arrived at by us that the complainant is not entitled to be granted any relief in this Original Petition.
Accordingly, this petition is dismissed without any order as to costs. JUDGMENTS Mr. Y. Krishan, Member-I agree.
15. THIS case however, throws up an important and disturbing issue which I feel deserves to be taken note of.
In this case, we find that the Opposite Party No. 1 Dr. Ashwin Patel is a Homeopathic Doctor, and is not a qualified Allopathic Doctor but he is
practicing Allopathic system of medicine viz. prescribing allopathic medicines and giving injections of allopathic medicines to his patients. In the
evidence before this Commission he has stated that he had passed his D.H.M.S. Degree(?) i.e., Diploma in Homeopathic Medicine and Surgery in
1983 from Gujarat. This is a four year course and the subjects covered, inter alia, were Anatomy, physiology, pathology, Forensic Medicine,
Hygiene, practice of medicine, Surgery and Midwifery and Gynecology. After obtaining the Diploma in his final year of study he had undergone
training in Anand Municipal Hospital as well as at a nursing home in Anand for a period of six months. He had received the Diploma from the
Council of Homeopathic system of medicine, Gujarat. He also got registration from the Maharashtra Government and worked as Chief Medical
Officer in an allopathic clinic in Bombay by the name of Patel Surgical & Nursing Home from 1983 to 1990. Thus he claims to have acquired
experience of examining and diagnosing and treating patients and prescribing allopathic medicines
16. IN the evidence he has averred that he practices both, systems of medicine i.e., Homeopathic as well as Allopathic and is registered as an
allopathic practitioner with Homeopathic Council and that he was entitled to practice allopathic ""as and when required in emergency cases"". To a
question whether such practice was allowed in Maharashtra, he has stated ""I have not gone through"". He claimed that in the course of
Homeopathic studies he was also given instructions in allopathic medicines.
It is a matter of common knowledge that allopathic and homeopathic systems of medicines are entirely different in theory and practice. Again only
those medical doctors are allowed to practice allopathic system of medicine who are duly qualified by studying the prescribed courses in allopathic
medical colleges in accordance with the rules and regulations made by the Medical Council of India and have also undergone the requisite training
after postgraduation by doing house jobs and as registrars in hospital etc. The period of study in medical colleges is Four & a half (4) years
followed by 6 months practical training (internship) in house jobs and as registrars for a period of 6 months. This makes a total of five & a half year
(5) study and training.
It is significant that subjects such as Pharmacology, Microbiology, Biochemistry, E.N.T., Opthalmology, which are a part of the M.B.B.S. course
are altogether absent from the course content of Homeopathy. Again the period of study of the courses in the M.B.B.S. varies from 1 to 3 years:
study of clinical medicine which includes Medicine proper, Surgery, Gynaecology-obstetrics etc. is for a period of 3 years.
17. THE following questions arose in this case:
(i) Dr. Ashwin Patel has got a Diploma in Homeopathic medicine. Is it equiva lent to a degree in allopathic medicine viz. M.B.B.S.? (ii) Is the
content of training in the diploma course in Homeopathic systems of medicine of the same standard and for the same period for allopathic subjects
such as Anatomy, Physiology, Pathology, Forensic Medicine, Hygiene, Practice of medicine, Surgery had Midwifery and Gynaecology as in the
allopathic institutions? (iii) A knowledge of Pharmacology is essential for selecting & prescribing the appropriate medicine for a particular disease
and the patient. Is it correct that an Homeopathic Doctor can prescribe allopathic medicines without study of Pharmacology?
His answers during cross-examination are somewhat dubious.
18. AT one stage, he says that he is entitled to practice allopathic as and when required in emergency cases. Does it mean that in nonemergency
cases he cannot practice allopathic and who will decide whether it is a case involving emergency? This is relevant because, according to his own
statement, he is practicing both allopathic and homeopathy.
According to Dr. Patel, as per the Medical Council rules of Gujarat he is allowed to practice allopathic. But there is no clear answer to the
question whether he is allowed to practice allopathic in Maharashtra. Since he has worked as a Chief Medical Officer from 1983 to 1989 in the
Patel Surgical Nursing Home in Bombay, i.e., in Maharashtra he must have been registered under the allopathic system of medicine by the Medical
Council of Maharashtra, though as already noted above, he was unable or unwilling to give a clear answer whether he was allowed to practice
allopathy in Maharashtra.
To another question is it a fact that ""the diploma does not allow you (Dr. Ashwin Patel) to practice allopathic, medicines?"" he stated that there is
not any particular order that he was not allowed to do allopathic practice. In other words, there was no bar. He claimed that that diploma is just
like a degree.
19. WE are not concerned with these matters in consumer jurisdiction but these matters raise questions of national importance and are of concern
to every citizen. Whether a person who is not qualified in the allopathic system of medicine but has a diploma in Homeopathic system of medicine
is qualified and entitled to practice allopathic? These questions will become particularly relevant if allegations of medical negligence for want of
adequate knowledge and skill arise as has happened in this case. I therefore, feel that it is desirable that the Government of India in the Ministry of
Health & the Indian Medical Council, examine this matter as to whether persons who are qualified in Homeopathy and have got diploma/degree in
that system, are entitled to practice allopathic system of medicine. The Medical Council of Maharashtra may also examine whether in this specific
case the Opposite Party was and is registered under the allopathic system of medicine in Maharashtra and is entitled to practice allopathic system
of medicine in accordance with the regulations framed by the Medical Council of Maharashtra.
A copy of this order should be forwarded by the Registry to the Secretary, Ministry of Health, Government of India, Secretary, Medical Council
of India and the Secretary, the Maharashtra State Medical Council for suitable action. Petition dismissed.