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Facts in brief :
1.
Mr. Digvijay, Advocate (respondent-1) filed CC/48/2013,
for a compensation of Rs.20/- lacs from the petitioner, alleging that
during his treatment for skin disease from 12.09.2010 to 18.05.2011, the
petitioner administered modern allopathic medicines, although he had degree
of “Ayurvedacharya” and had no knowledge/qualification of those medicines;
due to which another diseases namely “herpes zoster” and “cataract” had
developed to him and his condition had become very critical.
2.
The complainant stated that Dr. Shailender Dhawan (the
petitioner) was running a skin clinic in the name of “Kayakalp Global Skin
Clinic”, at Faridabad, displaying his name as Senior Consultant and
qualification as “Ayurvedacharya, B.A.M.S., M.D. (Alt. Med.).
3.
At relevant time the complainant went to the clinic of
the petitioner on 12.09.2010 for treatment of his skin disease. The
petitioner examined the complainant and informed that he was suffering from
“Active Vitiligo”.
The Medications prescribed by
the Petitioner Doctor & Charges :
4.
The petitioner
prescribed (i) Leucocure ointment in morning with sun exposure. (ii) Crolim
0.1% (At bed time on face only). (iii) M-1/93 (at bed time on body), 3
weeks continue, 1 week gap. (iv) Cap. Leucocure 1 Cap. in morning after
breakfast, 2 after dinner. (v) Tab. Aromaltas 1 tab. in morning after
breakfast, 1 after dinner. (vi) Tab. Precorti 5mg., 3 tab. after breakfast,
3 after dinner on Monday and Tuesday only. (vii) Tab. Dicaris 150 mg. 1 tab
on Saturday (N) and 1 tab on Sunday (N) only. The petitioner charged
Rs.5000/- and asked to take medicines for three months regularly. As per
advice, the complainant took above medicines for three months regularly but
no relief was experienced. The complainant then again went to the clinic of
the petitioner on 17.12.2010. The petitioner charged Rs.5000/- from the complainant
and prescribed (i) Tab. Aromaltas, 1 tab in morning after breakfast, 1 tab
after dinner. (ii) Tab Precortil 5 mg. 3 tablets after breakfast, 3 after
dinner on Monday and Tuesday only (iiii) Tab. Dicaris 150 mg. 1 tab on
Saturday (N) and 1 tab on Sunday (N) only.
5.
The petitioner again advised to take above medicines
continuously for three months. As per advice, the complainant took above
medicines for three months regularly but no relief was experienced. The
complainant then again went to the clinic of the petitioner on 19.03.2011.
The petitioner charged Rs.8000/- from the complainant and recommended for
Blood Test for HB, TLC, DLC, ESR, Platelet counts, Blood sugar, Random
SGPT.
6.
After examination of test report, he prescribed (i)
Leucocure ointment in morning with sun exposure. (ii) Tbis 0.1%
forte/Tacroz 0.1% Forte (At bed time on face only). (iii) Momate ointment
MTAZ or Cutizone ointment (at bed time on body), 3 weeks continue, 1 week
gap. (iv) Cap. Leucocure 1 Cap. in morning after breakfast, 2 after dinner.
(v) Tab. Aromaltas 1 tab. in morning after breakfast, 1 after dinner. (vi)
Tab. Dicaris 150 mg. 1 tab on Saturday (N) and 1 tab on Sunday (N) only.
(vii) Zempherd 16 mg. Monday (M), Tuesday (M). (viii) Vedashave Lotion.
(ix) Vedawave Shampoo/Body wash. (x) Snltop Lotion effect for hair loss
(N), medicines and again asked to take it for 3 months with some
precautions.
Wrong medicines caused “herpes zoster’ and Cataract in both the
eyes.
7.
The complainant was taking medicines regularly as per
prescription. In middle of May, 2011 “herpes zoster’ on his both lips,
palate, gums and nose right side, cataract in both the eyes with acute
weakness were developed, then he consulted with Dr. Manoj Jain, MBBS DVD Md (skin) on 16.05.2011 at his
Vardhman Skin Clinic and Cosmetic Laser Centre, who diagnosed the
disease “herpes zoster’.
Due
to poor condition of the complainant, he was admitted at Sehgal Nursing
Home, and for cataract, the complainant get treatment from Dr. Ritu Goel
MBBS, MS (Ophth) and eye surgeon Dr. A.K. Chadha, MBBS DOMS (Ophth), who
operated the cataracts. The complainant spent about Rs.1.5 lacs in his
treatment with Dr. Manoj Jain and Rs.50000/- in his treatment of cataracts
and suffered professional loss of Rs.5/- lacs during this period. Due to
wrong prescription of medicines by the petitioner the complainant faced
hazardous condition and threat to his life has been created. The petitioner
was “Ayurvedacharya” and did not have knowledge and experience of
allopathic medicines.
Defense of the Petitioner Doctor
:
8.
The petitioner denied all the allegations. It was
alleged that the complainant
approached him on 12.09.2010 with problem of vitiligo, which was in
spreading mode. After examination, the petitioner started oral mini pulse
therapy in steroid giving two days steroids with break of five days. The
dose of medicine was fully explained to the complainant, total cost of
treatment was Rs.3200/- for three months including the consultation fees.
It has been denied that Rs.5000/- or Rs.8000/- was charged.
Why Herpes Zoster Occurs ? The
petitioner Contended that :
9.
It was contended that so far as herpes zoster infection is concerned, it occurs in a person who
is previously infected with chicken
pox. The virus used to remain in
the nervous ganglion in dormant form, it used to reactivates during immune
deficiency, diabetes, stress etc. and transforms as Herpes Zoster. Even
long term steroid therapy can give herpes zoster, but with oral mini pulse
that means that if doctor gives steroid for two days in a week, then risk
of spreading herpes zoster is rare.
development of cataract -
10.
The allegation of development of cataract due to wrong
medication is concerned; it is very rare possibility with oral mini pulse
in young age. The patient visited the clinic and was very depressed due to
spread of vitiligo disease. White patches on face are psychologically very
depressing for the patient. So taking into account of the disease, he was given steroids for nine months which is guidelines in the
article of Indian Institute of Medical Science dated 19.03.2011. The blood
test HB, TIC, DIC and blood sugar were checked and found to be normal. The
petitioner has not committed any negligence in treatment of the
complainant. So far as prescribing
allopathic medicines is concerned, the petitioner was B.A.M.S. degree
holder and entitled to practice in Allopathic System of Medicines/Modern
Science. The complaint has been filed on wrong premises and is liable to be
dismissed.
District Forum allowed the
complaint with compensation of Rs. 5 lakhs and Appeal filed by the Doctor in Haryana State Forum was also dismissed
and hence this Revision :
11.
The counsel for the petitioner
relied upon the Notification dated 08.04.2002 issued by Director General
Health Services, Haryana in which it has been mentioned that degree holders
of Ayurvedacharya (BAMS)/Kamil-e-tib-o-Jarahat (BUMS) and the equivalent
qualification including in second schedule to Indian Medicines Central
Council Act, 1970 are competent to use modern technology for e.g.
Radiology, Ultrasonography, E.C.G. etc. in their clinical practice on the
basis of their teachings and training as notified already by Central
Council of Indian Medicine Notification No.8-5/97-Ay(MM) dated
31.10.1996. He further relied upon the Notification of Commissioner
& Secretary, Health, Medical Education Ayurveda (ISM) Department,
Government of Haryana, dated 12.04.2004 in which it has been mentioned that
institutionalized qualified practitioner of Indian System of Indian
Medicine (Ayurveda, Siddha & Unani) are eligible to practice Indian
Systems of Indian Medicine and Modern Medicine including surgery,
Gynaecology and obstetrics based on their training and teaching which are
included in the syllabi-of via course of ISM prescribed by Central Council
of Indian Medicine after approval of the Government of India. He has
further relied upon the Notification dated 22.04.2008 issued by Ministry of
Health & Family Welfare, Department of Ayurveda, Yoga &
Naturopathy, Unani, Siddha and Homeopathy (AYUSH), Government of India
dated 22.04.2008 to the same effect. He further relying upon the judgment
of Supreme Court in Martin F D’Souza Vs. Mohd.
Ishaq, (2009) 3 SCC 1, submitted that for filing a complaint of medical
negligence an expert opinion is mandatory. In the present case, no expert
opinion was filed, as such, the complaint ought to have been dismissed on
this ground alone. He submits that orders of District Forum and State
Commission are passed in ignorance of above notifications and liable to be
set aside.
HELD
:
When
Expert medical opinion is not required before filing any compliant :
12.
Hon. Supreme
Court in a subsequent judgment in V. Kishan Rao Vs. Nikhil Super
speciality Hospital and another, (2010) 5 SCC 513, has not accepted the earlier
view in Martin F D’Souza Vs. Mohd. Ishaq, (2009) 3 SCC 1 and held that imposing a
condition for obtaining an expert opinion for filing a complaint before the
Consumer Fora is not required and will defeat or dilute the legislative
intent of Consumer Protection Act, 1986.
Who can practice Modern Medicine
?
13.
Law regarding use of allopathic
modern medicines by a practitioner of Indian system of Indian medicine
(Ayurveda, Siddha & Unani) has been clarified by Supreme Court in Dr.
Mukhtiar Chand and Others Vs. State of Punjab and Others, (1998) 7 SCC 579, in which, in paragraph 47 of
the judgment, Supreme Court held that a harmonious reading of Section 15 of
Medical Council Act, 1956 and Section 17 of Indian Medicine Central Council
Act, 1970 leads to the conclusion that there
is no scope for a person enrolled in the State Register of Indian Medicine
or the Central Register of Indian Medicine to practice modern scientific
medicine in any of the branch unless that person is also enrolled on a
State Medical Register, within the meaning of 1956 Act.
Therefore, it is clear what is
required is not the qualification in Modern Scientific System of Medicine,
but a declaration of State Government that person is practicing Modern
Scientific System that he is registered in the Medical Register of
that State. The petitioner has filed his Registration Certificate as
Annexure-4 to this Revision Petition. A perusal of which shows that the
registration of the petitioner was under Punjab Ayurvedic & Unani
Chikkitsha Adhiniyam, 1963. The petitioner was not registered under
the provision of Indian Medical Council Act, 1956. For professional
practice, registration by the expert body constituted for that purpose is a
prerequisite condition. Although the notifications issued by the Government
of India or Government of Haryana a person who is eligible to practice
Indian system of Indian medicine, can use allopathic modern medicines on
the basis of his learning and training and can be enrolled under Indian
Medical Council Act, 1956, but so long as he is not enrolled under Medical
Council Act, 1956 he is not entitled to practice in modern medicine. The
impugned orders of District Forum and State Commission do not suffer from
any illegality.
This judgment will be of immense
help to the Allopath Doctors and for the patients, now the time has come
where they must make themselves aware about the Degrees of their Doctor !
Nevertheless, the wrong treatment and it's side effects can happen with Allopaths too. In this judgement there is no finding appearant on medical negligence. Last but not the least, can there be a combined pathy , as ultimately paitents want to get relief...Is it really possible ?
Thanks and Regards
Adv. ROHiT ERANDE
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