O R D E R (Pronounced on19th day of December, 2014) D.K. JAIN, J. PRESIDENT An unfortunate father of a 12 years old girl child, who lost her life within a span of almost 12 hours of suffering episodes of vomiting and diarrhea, is the Petitioner in this Revision Petition, under Section 21(b) of the Consumer Protection Act, 1986 (for short the Act). He questions the legality and correctness of order dated 22.09.2008 passed by the State Consumer Disputes Redressal Commission, West Bengal (for short the State Commission) in S.C. Case No. 554/A/2001. By the said order, the State Commission has affirmed the order passed by the District Consumer Disputes Redressal Forum, Hooghly (for short the District Forum) in Complaint Case No. C.D.F. 103/2001, dismissing the complaint filed by the Petitioner, alleging medical negligence on the part of the Respondent in treating his daughter. -1-

2. The material facts, as emerging from the complaint, are as follows:- The Petitioner and the Respondent, Dr. Abhijit Roy, are neighbours. On 22.05.2001, at about

9.45 a.m., his daughter, Ishita Banerjee, had four to five episodes of vomiting. He called the Respondent to examine her. After examination, the Respondent prescribed Injections Zofer (Ondansetron group) 4 ml IM and Rantac 4 ml IM. Around 12.30 p.m. her condition deteriorated as she started having loose motions. The Petitioner again requested the Respondent to visit his house and examine her. Instead of examining her, he prescribed two more medicines viz. Imosec-F and Pyrexnon-650- after each meal. Since the condition of Ishita did not improve, the Petitioner again tried to contact the Respondent around 6.10 p.m. but all his efforts having proved futile, he called one Dr. A.N. Har, who examined Ishita at about 9.35 p.m. He advised immediate hospitalization of the patient. Ishita was immediately removed to a Nursing Home, but she breathed her last before she could reach there. Alleging negligence on the part of the Respondent for wrong treatment of his daughter, the Petitioner filed a complaint before the District Forum, claiming from the Respondent a compensation of 5,00,000/-.

3. The complaint was contested by the Respondent. In the written version to the complaint as well as in his evidence by way of affidavit, it was pleaded that being a family friend he had been treating the family without even charging fees for treatment and for the treatment in question also, he had not received any consideration. Therefore, the Complainant not being a consumer within the meaning of section 2(1)(d)(ii) read with section 2(1)(o) of the Act, the Complaint was not maintainable. On merits, it was stated that he had prescribed the aforestated two injections in the morning after examining her blood pressure, pulse, tongue, etc.; as she was diagnosed as suffering from gastroenteritis or early stage of gastroenteritis; she was advised to take ORS and plenty of fluids; the condition of the patient was absolutely steady and stable at the time of her clinical examination and around 1.45 p.m. he was informed by some relatives of the Petitioner that the condition of the deceased had improved; thereafter he had left for Kolkata for personal work and till 7.30 p.m., nobody had contacted and informed him about her condition; he visited the residence of the Petitioner around 9.45 p.m. to examine her but found that Dr. A.N. Har was examining her and had advised immediate hospitalization. It was alleged that the family members of the Petitioner had assaulted him and had damaged his medical instruments. It was also stated that when the maternal uncle of the deceased, accompanied by some other people, came to his residence in a belligerent mood and had told him that the Nursing Home would issue the death certificate only after autopsy is conducted to find out the cause of death, he issued the death certificate under pressure from them. He strongly denied prescribing Imosec-F and Pyrexnon-650- tablets and stated that the name of the said medicines had been written on his prescription, dated 22.05.2001, by someone else.

4. On appraisal of the pleadings and the evidence, the District Forum came to the conclusion that: the Respondent had treated the deceased free of charge and, therefore, he could not be held responsible under section 2(1)(o) of the Act; there was no negligence or deficiency in service on his part in treating the deceased and the fact that no post mortem was got conducted to find out the cause of death of Ishita, despite specific suggestion by the Nursing Home and the Respondent, gave rise to some suspicion as to the real intention of the Petitioner. The District Forum thus, dismissed the complaint with costs.

5. Aggrieved, the Petitioner filed Appeal before the State Commission. During the course of the hearing of the Appeal, the Petitioner made a prayer for adducing additional evidence of the experts. However, the prayer was rejected by the State Commission vide an order dated

07.12.2004. The said order was challenged by the Petitioner before this Commission. Vide order dated 13.07.2005, the petition was allowed and the Petitioner was permitted to file experts opinion by way of affidavit, with liberty to both the parties to cross examine each others witnesses before the State Commission.

6. Pursuant thereto, the Petitioner filed a review report by Dr. Swapan Kumar Jana, working as demonstrator in the Department of Pharmacology, Calcutta National Medical College & Hospital. In his report, he opined that in every step the Respondent encountered casually, without application of mind, resulting in failure of diagnosis, wrong choice of treatment, irrational drug therapy and assessment failure, which ultimately led to the unfortunate death of the child, Ishita Banerjee. He noted that proper clinical history of the patient, general survey, systematic examination, etc. of the patient was not recorded on the prescription. He opined that injections Zofer and Rantac are not proper drugs of choice in case of repeated vomiting for a 12 years old child and even the death certificate issued by the Respondent, giving the cause of death as probably Bronchial Obstruction was not only violative of medical ethics, the doctor was also uncertain about the real cause of the death. According to the said witness, probably the cause of death, recorded by the Respondent, was to cover up the real cause of death, which was dehydration. One Dr. Kaushik Munshi from Calcutta University was produced as expert witness by the Respondent. He deposed that there was no written Rule by the West Bengal Medical Council, stipulating the manner in which prescription in respect of a patient was to be written by an attending physician; the clinical findings of both the Respondent and Dr. A.N. Har confirmed that except vomiting, there was no other sign of a physical problem with the child; it was evident from the prescription of Dr. Har that the age of the deceased was 14 years and to the patients of this age, prescription of injections Zofer and Rantac was the right choice of treatment and that the Respondents prescription was strictly as per the medical norms and practice. Yet another doctor, namely, Dr. Krishnendu Mukherjee filed affidavit for the Respondent, wherein he also stated that since the deceased only had vomiting problem, prescription of medicines by the Respondent was appropriate. The said doctors were cross-examined.

7. On re-appraisal of the evidence on record, the State Commission came to the conclusion that the Petitioner had failed to prove that the Respondent did not possess the professional skill of a physician and did not follow the practice acceptable to the medical profession. Applying the principle laid down by the Honble Supreme Court in Jacob Mathew Vs. State of Punjab & Anr. (2005) 6 SCC 1 [LQ/SC/2005/768] to determine the question whether or not the allegation constitutes medical negligence, as noted above, the State Commission dismissed the appeal, observing thus: In the face of the said two expert opinions we find it difficult to accept the opinion of the medical expert, Dr, Jana, who gave his evidence in favour of the complainant primarily, due to the reason that Dr. Jana is not associated with the regular treatment of the patients. His present job is teaching and, therefore, he might not be aware of the effects of each medicine on the patient suffering from various complications. Moreover, Dr. Jana did not buttress his evidence by reliable medical literature and hence the opinion given by him might be exclusively his personal. We have already reproduced excerpts of the decisions of the Honble National Commission as relied by the Respondent wherein the Honble Commission had strongly observed against Dr. Jana who gave his evidence in case relating to pediatric treatment. In other words, he has been found to offer his expert evidence in almost all types of cases involving medical negligence which is very unusual for any specialist or expert. We are inclined to say further that application of two medicines Imosec-F and Pyrexnon-650 which had not been prescribed by any doctor might have been done by someone within the Knowledge of the Appellant and evidently they had caused irreparable damage to the system of the patient as observed by the two experts giving their evidence for the Respondent. We are also of the view that as contended by the Respondent doctor in his evidence that though he had prescribed ORS and plenty of liquid, the Appellant/Complainant could not adduce any documentary evidence before the Forum below that the said instruction was strictly adhered to. Moreover, since no fee was paid to the Respondent doctor there was no service in terms of Section 2(I) (o) of the Consumer Protection Act and hence the Appellant-Complainant is not a Consumer in terms of Section 2(1) (d) of the Act. The decision in 2002 CTJ 439 (CP) NCDRC may be referred to in this connection. Lastly, the allegation of the Appellant that in spite of repeated calls between 12.30 a.m. and 6.00.p.m. the Respondent doctor did not attend his daughter who was allegedly deteriorating very fast was not proved by any documentary evidence.

8. Being dissatisfied with the decision of the State Commission, the Petitioner preferred a Revision Petition before this Commission (R P No. 5029 of 2008). The said Revision Petition was dismissed vide order dated 09.01.2009, observing that there was no error/irregularity in the exercise of jurisdiction by the State Commission in dismissing the Appeal. Aggrieved thereby, the Petitioner carried the matter in Special Leave Petition to the Supreme Court. Vide Judgment dated 27.09.2010, rendered in Civil Appeal No. 8311 of 2010, the Honble Supreme Court has set aside order dated 09.01.2009, remanding the case back to this Commission for fresh disposal. The Revision Petition is now before us for fresh adjudication.

9. We have heard Mr. Sanjoy Kumar Ghosh, Learned Counsel appearing for the Petitioner/Complainant and Mr. Partha Sil, Learned Counsel representing the Respondent. We have also perused the Experts evidence, briefly referred to above as also the medical literature filed by the parties, relating to Ondansetron therapy in episodes of vomiting and diarrhea, as the main thrust of allegation of medical negligence is overmedication of the victim by the Respondent without adequate clinical examination before prescribing the medicines. We have also taken into consideration the written submissions filed on behalf of the Petitioner.

10. It is manifest from the afore-extracted paragraph of the order of the State Commission that on re-appraisal of the evidence, adduced by the parties, while concurring with the decision of the District Forum it has held that :(i) the testimony of Dr. Jana cannot be relied upon because it was not buttressed with reliable medical literature and he was found to be offering his expert evidence in almost all types of cases, involving medical negligence; (ii) the two medicines viz. Imosec-F and Pyrexnon-650 which, evidently had caused irreparable damage to Ishitas System written on Respondents prescription, admittedly not being in the hand of the Respondent, could have been prescribed by someone else; (iii) no fees was paid by the Petitioner to the Respondent for the treatment in question and (iv) non-availability of the Respondent between 12.30 p.m. to 6.00 p.m. in spite of repeated calls was not proved.

11. Therefore, before examining the question of alleged negligence on the part of the Respondent, we shall first deal with the preliminary objection raised by the Respondent with regard to the maintainability of the Complaint. As noted above, in paragraph 27 of his written version, the Respondent had specifically averred that, as in the past, he had attended to and treated the daughter of the Petitioner without any consideration. A similar plea was repeated in paragraph 6 of Affidavit of Evidence. In his short rejoinder to the reply, the said stand of the Respondent was not controverted by the Petitioner. However, in his oral evidence, while admitting that in his Complaint, he had not made any averment regarding fees, he stated that he had paid to the Respondent a sum of 100/- as fees and 28/- for giving injection of the prescribed medicine. We are in agreement with the lower fora that the said bald statement was not sufficient to hold that the Respondent had treated the patient/deceased for any kind of consideration and, therefore, the Petitioner was not a consumer falling within the ambit of the Act.

12. Having reached the conclusion that the Complaint under the Act was not maintainable, it may be unnecessary to go into the question of alleged medical negligence on the part of the Respondent. However, in light of the direction of the Supreme Court for consideration of the case on merits, we proceed to do so.

13. What constitutes medical negligence, based on the touchstone of Bolam Vs. Friern Hospital (the Bolams test), is well settled through a catena Management Committee, (1957), 1 WLR, 582 of decisions of the Honble Supreme Court including in , Jacob Mathew Vs. State of Punjab & (Supra), (1995) 6 SCC 651 [LQ/SC/1995/1126] and Anr. Indian Medical Association Vs. V.P. Shantha and Ors., (2010) 3 SCC Kusum Sharma & Ors. Vs. Batra Hospital and Medical Research Centre & Ors.

480. Gleaned from these judgments, broad principles to determine what constitutes medical negligence, , are: (i) Whether the doctor in question possessed the medical skills inter alia expected of an ordinary skilled practitioner in the field at that point of time; and (ii) Whether the doctor adopted the practice (of clinical observation diagnosis including diagnostic tests and treatment) in the case that is accepted as proper by a responsible body of professional practitioners in the field. In this connection, in (supra), a three Judge Bench, elaborating on the Jacob Mathew degree of skill and care required of a medical practitioner quoted Halsburys Laws of England (4 Edn., Vol.30, para35), as follows:- th

35. The practitioner must bring to his task a of skill and reasonable degree knowledge, and must exercise a of care. Neither the very highest reasonable degree nor a very low degree of care and competence, judged in the light of the particular circumstances of each case, is what the law requires, and a person is not liable in negligence because someone else of greater skill and knowledge would have prescribed different treatment or operation in a different way

14. We shall, therefore, examine the allegations of medical negligence on the touchstone of the aforenoted broad principles.

15. Having carefully perused the experts evidence adduced by both the parties, the prescription written by the Respondent, we do not find much substance in the allegation of the Petitioner that the Respondent, the treating doctor, was medically negligent and deficient in rendering service to the Petitioner because he had not record on the prescription the age and other clinical findings of the deceased. It is true that except for noting repeated vomiting there is no indication on the prescription regarding her other parameters like age, blood pressure, pulse rate, tongue condition, anaemia, jaundice, clubbing, cyanosis, oedema, condition of the abdomen, etc. It is equally true that according to Respondents expert witness, Dr. Kaushik Munshi, these are usual clinical checks by any treating doctor before prescribing medicine(s) but on being questioned on the significance of not writing the age of the patient, he clarified that it varies from case to case and in the case of a house Physician, like in the present case, the treating doctor knows the age of the Patient, having seen him several times. In the instant case, admittedly the Respondent had been treating all the members of the Petitioners family for the past many years. Obviously, he was aware of the age and physical condition of the deceased. As regards the prescription of the two medicines, Dr. Munshi and Dr. Krishnendu Mukherjee have opined that the said medicines could be given to a 12-14 years old child to treat vomiting episodes and the dose prescribed by the Respondent was proper and adequate. Nevertheless, Dr. Munshi did not express a firm opinion when questioned regarding use of ondansetron in pediatric patients with reference to the age of the patient. Since stress is laid on his cross-examination, it would be apposite to extract some of his answers:- Q.19. Are you aware that according to the report by FDA published in 2005 (submission number 20-007 and submission code S-035) on the use of Ondansetron in pediatric patients, this drug has been recommended only for prevention of CINV and PONV Ans: In absence of my consideration of the reference I am not in position to reply the question. Q.20. Are you aware that in a position statement in 1996 (Pediatrics 1996, 97: 424-35), the American Academy of Pediatrics recommended that the use of anti-emetics (e.g. Aofer) be avoided in children because of potential side effects and questionable benefit Ans. In absence of my consideration of the reference I am not in position to reply the question. Q.21 Are you aware that in a large retrospective study published recently in the journal Alimentary Pharmacology Therapeutics(2007 Feb. 15 Vol. 25, P. 393-400) by Szajewska H. et al., it was found that there is no evidence to support routine use of Ondansdertron for vomiting during acute gastroenteritis in children Ans. In absence of my consideration of the reference journal I am not in position to reply the question. Q.22 Why doctors write age of the patient on the prescription Ans. To facilitate the treatment. Q What is the significance of not writing age of a patient on the prescription Ans. It will vary from case to case depending upon the circumstances. Probably the doctor knows the age as happens to a house physician or a G.P. who has seen that particular patient several times and sometimes the patient party could not inform the actual age to the doctor. Q23 What importance of age of children does it have on drug administration Ans: The dose of the medicine is prescribed according to age.

16. Evidently, his answers to the generalized questions do not prove the case of the Petitioner that the deceased had been prescribed wrong drugs by the Respondent. As regards the allegation of prescribing Imosec-F and Pyrexnon-650, as it is recorded on the prescription, the Respondent specifically denied having prescribed the said medicines. Nothing has been brought on record to rebut his stand. Having glanced through the evidence on record and bearing in mind the broad parameters to be applied for judging whether there was medical negligence on the part of a treating doctor, we are in agreement with the Fora below that a case of medical negligence was not established against the Respondent, merely because he failed to record the clinical parameters of the deceased on the prescription. As noted above, two medical experts had deposed that the treatment given was proper and adequate. One witness has opined to the contrary. Therefore, on facts at hand, we find it difficult to hold that the Respondent did not exercise a reasonable degree of care to treat the deceased and was, therefore, medically negligent. We also feel that to some extent the Petitioner was also callous in taking care of his daughter. Having noticed that the condition of Ishita was deteriorating, instead of searching for the Respondent from 12.30 p.m. to 6.00 p.m and in the process wasting precious time, he could have shifted her to the Hospital or called Dr. A.N. Har, who examined the deceased only around 9.30 p.m., by which time the damage was done. As a matter of fact, the alleged frantic efforts to contact the Respondent show the level of confidence the Petitioner had reposed in the Respondent and in fact wanted him to treat his daughter.

17. In the final analysis, we are of the opinion that the Petitioner had failed to establish against the Respondent medical negligence or deficiency in service in so far as it pertained to his alleged failure to record on his prescription the vital parameters of the deceased before prescribing the medicines.

18. While we share the emotions of the parents losing their child, yet emotional aspect is not a material factor to determine the question of medical negligence. Loss of a loved one is an immeasurable loss and no amount of compensation can put a correct price on the loss so suffered, yet such loss cannot be a proof of medical negligence. per se

19. In our opinion, therefore, concurrent finding by both the Fora below to the effect that the Petitioner had failed to establish medical negligence, is based on the aforestated parameters laid down by the Honble Supreme Court. We do not find any jurisdictional error in the impugned order, warranting interference in our limited revisional jurisdiction. The Revision Petition is dismissed accordingly with no order as to costs.

20. Before parting with the case, we place on record our deep appreciation for the valuable assistance rendered by Mr. Sanjoy Kumar Ghosh, Advocate, the Learned Amicus Curiae. yd/ar ......................J D.K. JAIN PRESIDENT ...................... VINAY KUMAR MEMBER