Decided on December 16,2003

AJAYAKUMAR Respondents


- (1.) This appeal is filed against the judgment and decree in O.S. No.81 of 1989 on the file of the Additional Sub Court, Ernakulam. First defendant is the appellant. The suit was filed by the plaintiff - first respondent for damages on the death of his mother. The plaint averments are as follows:
(2.) Deceased V.S. Malathi Vasu is the mother of the plaintiff. She died on the night of 25th September, 1982. According to the plaintiff, Malathi Vasu developed discomfort near the region of her head and hence, she proceeded to the Lissie Hospital along with her husband, who is the third respondent, on 26.7.1982. The Hospital Authorities referred Malathi Vasu to the second defendant, Dr. Saraswathi Thampi, for consultation and examination of her teeth. She was given an out patient attendance card. The second defendant examined Malathi Vasu in detail and she was told that there was a cyst on the lower part of her gum which needed surgical opening. The second defendant removed the cyst.
(3.) According to the plaintiff, the deceased Malathi Vasu told the second defendant that she was allergic to Penicillin. Acting on this information, the second defendant prescribed Resticlin (500 mg.) which is not a Penicillin derivative to be taken for four days as per a prescription dated 26.7.1982. Four days later, Malathi Vasu again went to the second defendant complaining about swelling in the same region. The second defendant intervened surgically the original site of operation and prescribed Resticlin once more to be taken orally for a further period of four days. Thereafter, on 25.9.1982, Malathi Vasu again went to the second defendant complaining about pain and swelling on the same region. The swelling was surgically opened by the second defendant. The second defendant then prescribed Pentids (800 mg.) to be taken one a day for 3 days. Pentids is a Penicillin compound and Malathi Vasu did not know about that fact. The second defendant prescribed Pentids despite the fact that the deceased had told the second defendant that she was allergic to Penicillin during the first consultation of 26.7.1982. The deceased purchased Pentids tablets prescribed by the second defendant from the Lissie Hospital itself and took one tablet of Pentids at about 8 P.M. on 25.9.1982. Within a few minutes of taking the Pentids tablet, she developed grave symptoms of Penicillin allergy. Within a few minutes, Malathi Vasu became comatose and hence she was taken to the Lissie Hospital for emergency treatment. Soon after reaching the Hospital, Malathi Vasu died at about 9 P.M. on 25.9.1982. The plaintiff further stated that the second defendant was fully aware of the fact at the time of commencement of the first treatment that Malathi Vasu was allergic to Penicillin. The second defendant had a duty to exercise due care and caution in the exercise of her professional skill. The second defendant prescribed Pentids tablets to the deceased in spite of having been previously informed by the patient that she was allergic to Penicillin. Pentids is a trade name and a lay man cannot be expected to know that it is a Penicillin compound. According to the plaintiff, his mother died as a result of allergy developed due to the administration of the Penicillin compound. The second defendant was thus not diligent in the performance of her profession and duty towards the deceased and did not exercise proper skill and care while prescribing Pentids tablets for the deceased. It is further stated that the Hospital is liable for the negligent administration of the Penicillin compound without taking elementary precautions by the second defendant. The second defendant was grossly negligent. She did not exercise due care and caution as required by the ordinary standards of the medical profession. The first defendant also is vicariously liable for the negligent act of the second defendant. Later in Para.15, the plaintiff claimed damages. The plaintiff has claimed Rs.1,50,000/- towards damages.;

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