- (1.) THE complainants have filed this complaint under Section 17 of the Consumer Protection Act, 1986 against the opposite parties for getting a sum of Rs. 19,76,488/ - towards damages for loss suffered due to material negligence, together with interest @ 18% per annum from 13.12.1996 till its realisation and costs of proceedings.
(2.) IN brief the facts as narrated in the complaint are : (i) The complainant No. 1 was a young man of 24 years and a III years medical student of Jawahar Lal Nehru Medical College at Raipur when on 23.2.1996 his friends and colleagues realized that he was slightly depressed and could not have proper sleep for the last nearly one week. The complainant No. 2 (father of the complainant No. 1) also realized that the complainant No. 1 was slightly depressed and consequently took him to Dr. (Mrs.) S. Verma, Psychiatrist at Bhilai (Durg) and he remained under treatment of the said doctor from 23.2.1996 till 1.4.1996. Then the complainant Nos. 2 and 3 (father and mother respectively) thought it proper to get him treated at Modern Medical Institute, Raipur i.e., the opposite party No. 1 by the Consultant Psychiatrist Dr. Ashok Trivedi, who claimed to be the specialist in the branch. (ii) It is averred in the complaint that the complainant No. 1 was shown to Dr. Ashok Trivedi on 2.4.1996 as outdoor patient and he was told about the treatment given to the patient by Dr. (Mrs.) S. Verma, however, Dr. Ashok Trivedi did not bother to note history of ailment, did not diagnose disease process, its signs and symptoms and made no record of any such symptoms etc. on the Outdoor Ticket. It is further averred that no investigation including pathological tests were conducted which are normally conducted in such cases. The doctor only prescribed certain medicines on the outdoor ticket to be taken by the complainant. It is averred that the O.P. No. 2 had shown utter negligence in discharge of his professional duties. After taking the medicines as prescribed for one week Sandeep was again shown to Dr. Trivedi on 10.4.1996 as directed. The attitude of the doctor was again the same and he mechanically prescribed the medicines for a week. The complainant No. 1 followed the instruction of the doctor regarding taking the medicines. (iii) On 16.4.1996 the O.P. No. 2 directed to admit the patient and consequently he was admitted to the O.P. No. 1 hospital as an indoor patient and remained there for a week and was discharged on 22.4.1996 from 16.4.1996 to 22.4.1996, Sandeep was administered Lithium along with other drugs. It is specifically averred in the complaint that Lithium is a potentially toxic drug and well known for its adverse effects as detailed in the complaint. Before starting Lithium therapy various tests are required to be done. Through medical examination including record of blood pressure and record of weight of the patient is to be maintained and Serum electrolystes, serum urea and thyroid function tests along with E.C.G. were required to be done but the O.P. No. 2 doctor did not get the same done. It is further averred that before starting lithium to any patient the doctor is under obligation to explain to the patient/his parents regarding the possible side effects of unduly high levels of Lithium. He should also explain that under conditions like diarrhoea, vomiting, de -hydration and fever complainant No. 1 should immediately stop lithium and should seek medical advice because such symptoms signal impending disaster. No such advice was given. (iv) It is averred in the complaint that beneficial dose and toxic dose of Lithium are very close together and hence it is essential to measure plasma concentration of Lithium regularly during course of treatment so that in case the same goes beyond permissible limits Lithium has to be discontinued. It is specifically averred that the O.P. No. 2 did not carry out the necessary tests nor did he warn the complainants regarding the nature and effect of Lithium therapy. He only continued the said therapy even after discharge of the patient on 22.4.1996 and the complainant reported as outdoor patient, as advised by the doctor from time to time till 12.6.1996 and on all the occasions the doctor had prescribed to continue with Lithium. During this period from 22.4.1996 to 12.6.1996 once or twice Serum Lithium test was prescribed and done. On 18.6.1996 when the patient visited as Outdoor Patient he was advised to be hospitalized and Lithium administration was continued till his discharge on 24.6.1996 and during this period Serium Lithium was done on 20.6.1996. On discharge the patient was again directed to continue Lithium for a week. (v) It is further averred in the complaint that the patient was seen by the opposite party as outdoor patient for as many as eight times from 2.7.1996 to 18.11.1996 and Lithium was continued with other medicines. However, the O.P. No. 2 never advised to get serum Lithium level tested. On 18.11.1996 also the doctor prescribed to continue Lithium for the next four weeks. (vi) As per averments, on 12.12.1996 the adverse effects of Lithium therapy were visible as he complained of loss of appetite, muscular weakness and developed diarrohea and vomiting for which the patient complained to the O.P. No. 2 at the hospital on 13.12.1996. It is further alleged that the O.P. No. 2 despite noticing the complaints, mechanically directed to continue Lithium for further four weeks, without advising to discontinue Lithium and to monitor Lithium level. (vii) The complainants have specifically averred that the complainant No. 1 was subjected to heavy doses of Lithium for a long period of six months (from 21.6.1996 to 20.12.1996) without any monitoring of Serum Lithium and this act of the O.P. No. 2 tantamount to utter and wanton negligence on part of the said O.P. in treating the complaint No. 1. This led to severe lithium toxicity in complainant No. 1. On 20.12.1996 the complainant developed Dysarthria (difficulty in speech) followed by Aphasia or Mutism (complete loss of speech), difficulty in deglution, complete loss of equilibrium due to which he could not sit, stand or walk. He also experienced sever coarse tremors in the body, persistenly nodding his head in No -No movement of the head and had developed high fever and experienced severe thirst. Earlier he had no urination however followed by increased urine output with decreased urine concentration ability, nephrogenic in origin secondary to Lithium toxicity. (viii) On 21.12.1996 the complainants went to O.P. No. 1 hospital for consulting Dr. Ashok Trivedi but he was told that the said doctor was on leave and no other psychiatrist was available in the institute. In the absence of any other option the complainants consulted Dr. P.N. Shukla, Psychiatrist at Raipur who advised to get the patient admitted to Medical College Hospital, Raipur immediately and following his advice the complainant No. 1/patient was admitted to the said hospital on 21.12.1996 itself. All the aforesaid symptoms were present at the time of admission. However, there was no disturbance of mentation and the boy was fully conscious and oriented. There was no seizure or convulsions and there was no carnial nerve palsy. It is further averred there was no evidence of headache or stiffness of neck or any sign or involvement of meninges or cerebal hemisphere. The CSF (Cerebro Spinal Fluid) was also normal. Various diagnostic tests were conducted e.g. CT Scan (Head), USG Abdomen and serum Lithium level, which unequicocally indicated Lithium Toxicity. (ix) Finally it was decided to shift the patient to Bombay, however en -route Bombay due to his serious condition he was admitted at Central India Institute of Medical Sciences at Nagpur on 1.1.1997 and remained there till 5.1.1997. In the said hospital the complainant No. 1 was attended and investigated by eminent Neurophysician and psychiatrist Dr. G.M. Taori and Dr. Sudhir Bhave respectively and the opinion of the said doctors pointed Lithium Toxicity. (x) As per the averments thereafter the complaint No. 1 was admitted to Bombay Hospital, from 6.1.1997 to 31.1.1997 under Neurophysician Dr. B.S. Singhal and Dr. Ashit Seth, Professor of psychiatry and they were of the opinion that complainant No. 1 had permanent Neurological damage, secondary to Lithium Toxicity. It is further averred that during hospitalization he was manifesting typical signs of cerebellar involvement like Dysarthia, Ataxia, in co -ordination, polydypsia, polyurea with decreased urine concentration ability i.e., Diabetes insipidus syndrome, nephrogenic in origin secondary to Lithium Toxicity. A number of routine as well as specialized tests were done at Bombay. The complainant No. 1 was diagnosed to be suffering from Lithium induced Cerebellar ataxia with disabetes insipidus. He was discharged on 31.1.1997 with the advice to continue physiotherapy at home for four months. (xi) Complainant No. 1 was also referred to C.M.C. Hospital, Vellore and was admitted there from 14.5.1997 to 15.10.1997 in the Department of Physical Medicine and Rehabilitation and also in Rehabilitation Institute, Bagayam. Investigations and MRI at Vellore showed Cerebellar degeneration of cerebellar atrophy without any demyelination. A diagnosis of Organic Brain Syndrome, secondary to Lithium Toxicity was made. At the time of discharge complainant No. 1 was advised to take rest at home for 3 months, to continue physiotherapy and occupational therapy and to report after 3 months. Accordingly he was readmitted at Vellore from 4.3.1998 to 27.3.1998. During both hopsitalization he was psychiatrically assessed by Dr. (Mrs.) Deepa. He was discharged on 27.6.1998 with a diagnosis of Cerebellar Ataxia with Dysarthia and was advised to take rest for one year and to continue physiotherapy and occupational therapy at home and to report after one year. (xii) As per complainants they had taken opinion in the month of August, 1997 from Prof. and Chairman, Department of Neurology, THE CLEVELAND CLINIC FOUNDATION, Cleveland, Ohaio after sending MRI of the complainant No. 1. He confirmed benign retro -cerebellar cyst and Cerebeller degeneration. He also enclosed a report from Dr. R. Stanley Burns, M.D. Head Movement Diorder Program THE CLEVELAND CLINIC FOUNDATION DEPARTMENT OF NEUROLOGY who opined the diagnostic possibility as toxic cerebellar degeneration on secondary to exposure to the combination of Lithium and a neuroleptic drug (Thioridazine) or para infectious cerebralitis. He also put a possibility of central pontine myelinolysis acutely secondary to Lithium induced nephropathy and electrolyte changes. He recommended opinion from Dr. Jaung Lee, Head Section of Skull Surgery, Deptt. of Neurosurgery, which was taken in November, 1997, who excluded possibility of any surgical intervention and also excluded cyst to be the cause of Neurolgocial deficit of the complainant No. 1. (xiii) On the basis of above mentioned averments the complainants submitted that it was due to negligence of the opposite party No. 2 that the complainant No. 1 suffered from Lithium toxicity and as the said O.P. is in employment of O.P. No. 1 both are liable jointly and severally for the damage suffered by the complainants and they have claimed a total sum of Rs. 19,76,488/ - under various heads as detailed in the complaint, together with interest and cost.
(3.) THE complainant No. 2 Dr. V.K. Agrawal has filed a number of his own affidavits from time to time as well as affidavit of Dr. D. Mohan, Dr. Sudhir Bhave and Dr. R. Hasan. The complainants have filed as many as 49 documents including medical text. The opposite party Nos. 1 and 2 resisted the complaint. Brief submissions as contained in written version are : (i) They denied all the allegations of negligence and deficiency in service. It was averred in written version filed by them that the complainant No. 1 was brought to the psychiatry OPD of the O.P. No. 1 in serious condition. He was having considerable extra pyramidal symptoms secondary to Neuroleptics for which he had already taken dosage for over a month. So the dosage were reduced and admission was advised. However, due to personal problems of the complainants, complainant No. 1 could not be admitted and was advised to come after a week. Next time it was observed that the extra pyramidal symptoms were not completely subsided. Dosage was further reduced. When the aforesaid symptoms did not subside within the next week the O.P. No. 2 forced the complainant No. 2 to admit complainant No. 1 to the hospital as an indoor patient. He was admitted on 16.4.1996, he recovered and was discharged on 22.4.1996 on the request of the complainant No. 2. It is further averred in the written version that as Dr. (Mrs.) S. Verma, prior to treatment by the O.P. No. 2 had prescribed Trinorm (Haloperida) and complainant No. 1 was not tolerating the same and it was causing several side effects, the said medicine was withdrawn and instead mood stablizing agent Lithium was introduced and therapeutic level of Lithium i.e., 0.8 mmol/lit. was obtained before discharge. Com -plainant No. 2 was fully apprised of the condition and also about the Lithium and pros and cons thereof. He was further specifically told about monitoring of lithium level in blood, possible side effects and toxicity and it was emphasized that medicines will have to be given under supervision of family members. Till May, 1996 the complainant No. 1 showed slow but definite recovery and his Serum Lithium on 31.5.1996 was 0.05 mmol./lit. as is evident from OPD slip. (ii) It is further averred that on 18.6.1996 the complainant No. 1 was again admitted to MMI as he showed breakaway symptoms of mania and was treated as indoor patient till 24.6.1996. During admission his Serum Lithium was evaluated as 0.6 mmol./lit. It is also averred that after earlier discharge the complainant Nos. 2 and 3 took good care of the patient for 2 or 3 months. However, they became negligent later and complainant No. 1 started taking unsupervised medicines, without proper precautions. After discharge from hospital in June, 1996 the opposite party No. 2 got Serum Lithium level checked after interval of three months twice in September, 1996 and December 1996 and this was got done by the complainant No. 2 himself on his advice and report was shown to him in the OPD on 13.9.1996 and 13.12.1996 which was about 0.8 mmol./lit. i.e., within therapeutic level. After going through the report, the opposite party No. 2 advised them appropriate treatment. It is specifically denied in written version that Serum Lithium was not done for long period of 6 months i.e., from June, 1996 to December, 1996. (iii) The opposite parties have further averred that on 13.12.1996 the patient was cheerful and did not demonstrate any symptoms as alleged by the complainants. His serum lithium was within therapeutic level till the time the patient was under his treatment and the complainant Nos. 2 and 3 supervised administration of drugs. (iv) The opposite party No. 2 had admitted that he was on leave on 21.12.1996 and further that he had gone to see the patient at Medical College Hospital at the request of the complainant No. 2. It is contended that the symptoms of lithium toxicity are also symptoms of viral encephalitis that developed in the complainant No. 1 as is substantiated by document No. 8 i.e., the diagnosis of Medical College, Raipur. (v) Regarding document No. 15 it is averred that the same clearly shows that the patient was treated by Dr. Shekhar Lamdhade, Neurologist and provisional diagnosis was Litghium Toxicity and Demylinating Myelopathy on discharge. However, no psychiatrist of Nagpur has given opinion about lithium toxicity. It is further averred that according to opinion of the consultant of Bombay Hospital and Medical centre encephalitis was one of the three final diagnosis thus encephalitis was the cause of Lithium Toxicity and not the dose of lithium. If at all lithium toxicity had developed it was not due to prescription of lithium. Its administration should also be supervised and monitored closely so as to keep lithium level within therapeutic limits. It is further contended that the complainant Nos. 2 and 3 had gone to Korba leaving the boy at the mercy of his relatives and friends and he suffered from encephalitis and did not consult any specialist and continued dose of lithium resulting in Lithium Toxicity or overdose of lithium was taken wilfully or by mistake. (vi) It is also averred in the written version that opinion obtained from abroad cannot be relied as they have not examined the patient personally. (vii) Regarding not recording history and symptoms on OPD ticket the opposite parties have averred that as per standard practice these are recorded on OPD history proforma and it was not necessary to record them on OPD ticket. The O.P. has also filed copies of the said proforma wherein history etc. is allegedly recorded. It is also repeatedly averred that the O.P. No. 2 had got all necessary tests carried out before starting Lithium. It is further averred that Thyroid Test was not necessary. Lithium levels were monitored and were kept within therapeutic range as long as the patient was under his treatment. (viii) The opposite parties have denied the allegations of negligence and have specifically denied any ability for the damage suffered by the complainants. (ix) It is specifically contended that the complaint is bad for misjoinder of parties. The complaint can be filed by the consumer, or his beneficiaries. Only complainant No. 1 is the consumer and rest of them do not come within the definition of consumer, hence the complaint is liable to be rejected. It is further averred that in the documents filed by the complainants none of the experts has opined that it was due to negligence or recklessness of the O.P. that the complainant No. 1 developed Lithium toxicity. It is yet further averred that the O.P. No. 2 has obtained an Insurance Policy of Professional Indemnity for doctors and Medical Practitioners from National Insurance Company bearing policy No. 320901/46/34/00005/96 commencing from 7.5.1996 till 6.5.1997.;