Decided on December 16,2003

Lisie Hospital Appellant
T.V. Ajayakumar Respondents


S.SANKARASUBBAN, J. - (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 oil 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 Lisie Hospital along with her husband, who is the third defendant, 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 outpatient attendance Card. The second defendant examined Malatahi 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. 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 interverned 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 Lisie 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 Lisie 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 stands of the medical profession. The first defendant also is vicariously liable for the negligent act of the second defendant. Later in paragraph 15, the plaintiff claimed damages. The plaintiffs has claimed Rs. 1,50,000/- towards damages.
(3.) A written statement has been filed by the first defendant. In the written statement, it is stated as follows. It is admitted that the deceased was being treated by Dr. Saraswathi Thampi. Regarding the question of allergic to Penicillin, it was submitted that the deceased Malathi Vasu had not told the second defendant that she was allergic to Penicillin. It is the duty of all Doctors to ask the patients about the allergy to any medicine before medicine is prescribed. If any patient is found to be allergic to any medicine, the same will be noted hi the chart. Whenever any allergy is found, necessary advice will be given about the use of the medicine. It is also a wrong statement that Resticlin was prescribed to Malathi Vasu because she was allergic to Penicillin. Resticlin was thought to be the proper medicine to be administered and the second defendant prescribed the same to the deceased. It is further stated that Malathi Vasu died because of the Penicillin allergy is not correct. The defendant exercised due care and caution. The second defendant was never negligent in the exercise of her professional skill in prescribing Pentids. All standards required of medical profession have been complied with. Defendants 3 and 4 have filed separate written statement supporting the plaintiff. Additional written statement was filed by the first defendant regarding damages. With these pleadings, parties went to trial. The second defendant remained ex parte.;

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