In the Court of National Consumer Dispute Redressal Commission Equivalent citation: 2009 (3) C.P.C. 24, III (2009) CPJ 121 (NC) Appellant Arvind Shah (Dr.) Respondent Kamlaben Ramsingh Kushwaha Decided on 30th April 2009 Bench Hon'ble Justice R.C. Jain, Hon'ble Anupam Dasgupta
The Consumer Protection Act, 1986 provides a remedy to persons who are victims of medical negligence. This Act gives the right to an aggrieved person to claim damages against the doctor or a hospital in case of medical negligence. The case of Arvind Shah vs. Kamlaben Kushwaha is considered to be of significant importance in dealing with medical negligence.
On 4th September 1997 Mrs. Kamlaben Kushwaha (the Complainant) took her son for treatment to Mr. Arvind Shah (original opposite party) (hereinafter referred to as the “Appellant”). Thereafter, on 6th September the son died due to wrong treatment administered to him by the appellant during 4th– 6th September.
Mrs. Kamlaben (hereinafter referred to as the “Respondent”) filed a complaint under Consumer Protection Act, 1896 in the State Consumer Dispute Redressal Commission (Gujrat) on the grounds that her son died due to medical negligence.
The State Commission ordered the appellant to pay compensation of Rs.5 lakhs along with interest @ 9% per annum till payment and cost of Rs.5000 within six weeks from the date of such order. Aggrieved with the above order the appellant filed an appeal in the National Commission.
Whether the appellant was negligent in his treatment and liable to pay compensation to the respondent.
By the Appellant side:
The learned Counsel for appellant (Mr. Mahinder Singh and Mr. Yoginder Handoo) alleged that the appellant only treated Mr. Prakash on 4th September. Further, as there was no pathological test available the appellant did not diagnose Mr. Prakash with malaria.
They further stated, based on the post-mortem report it was clear that the death of the patient was due to pulmonary edema which had no nexus with the medicine prescribed by the appellant. Also, denying the contention of the respondent the counsel stated that no injection was injected into the patient as if so, it would have left a scar on the deceased body.
Lastly, they stated between 4th-6th September the patient underwent treatment at another hospital called ‘Shradaben Hospital’ which might have contributed to his death.
By the Respondent side:
Mrs. Shah the Learned Counsel for the respondent contended that in the written statement, provided to the State Commission the appellant completely denied treating the patient but subsequently admitted treating him on 4th September.
It was further contended that the patient suffered from acute distress and breathlessness after the appellant injected him through the intravenous saline solution (IV tube). Further, Rakesh Medical and General Store’s cash memo showed support of the patient’s treatment and prescription provided by the appellant on 6th September. The memo also mentioned the name of the appellant as prescribing doctor stating that Ampicillin and Germycin were absolutely safe and had no side effects.
The Court observed that the prescription dated 6th September on record was proof that the appellant had treated the patient for the 2nd time. The Court taking in view the prescription for Inj. Betnesol which was stated to be a life-saving drug by the appellant directs that there could have aroused a fatal complication shortly before the patient’s death.
The Court was of the opinion that before treating a patient the doctor must communicate the nature, the procedure, the treatment, the benefits and effects along with any substantial risk and thereby obtain the consent of the patient for the same.
The Court further stated that the denial of the appellant to admit that he had treated the patient cannot be acknowledged as professional behavior. The appellant not only failed to issue a prescription but also failed in mentioning the diagnosis for his treatment. The negligence of the appellant may have led to the patient’s death. However, there is no direct proof to show that the death of the patient was caused by the appellant and so the compensation awarded by the State Commission was too high and unsustainable.
Taking into consideration the observation mentioned above, the Court held that the appellant was guilty of medical negligence and ordered him to pay a compensation of Rs.2.5 lakhs to the respondent along with interest @ 9% per annum till the date of payment within four weeks from such order, failing which, the balance for the default period shall be charged @ 12% per annum.
Based on the above observations the Court granted the appeal partly by decreasing the compensation amount and also highlighted some important facts and information which a doctor must communicate to the patient prior to his treatment.
Edited by: Purnima Ojha
Arvind Shah vs. Kamlaben Kushwaha 2009 (3) C.P.C. 24, III (2009) CPJ 121 (NC)