The recent judgment by the Bengaluru II Additional District Consumer Disputes Redressal Forum was deeply disturbing not only for its irrationality, but also for the far reaching consequences. Briefly, in 2014 a nine-year-old child with epileptic fits was seen by a senior paediatrician, specializing in paediatric neurology. The child was prescribed Carbamazepine tablets a first line drug of choice as per standard treatment guidelines. The dosage was calculated by body weight as recommended and the parents warned about side effects and to report back immediately if side effects occurred. All this was a matter of clinical record. Unfortunately the child developed Steven Johnson’s Syndrome, a rare but serious skin reaction with fever; a complication that may occur in 1:1000 cases. Intensive treatment was required incurring an expenditure of about Rs 1 lakh. In January 2018 the forum awarded Rs 90,000 – Rs 70,000 for medical expenses, Rs 10,000 for mental agony, and Rs 10,000 for litigation expenses to the parents. However it is the text of the judgment that is shocking.
The forum stated “the doctor prescribed the tablet to the girl knowing very well that it may cause side effects. It means that he knows about the resulting damage. It is the legal duty of a doctor to exercise due care. All the documents produced by the complainant clearly establish the case of the complainant and reveals about the deficiency of service on the part of the opposite party No 1. “The doctor pleaded that he had instructed the complainant about the side effects and to stop the drug if rashes or fever appear. But the forum maintained that he should have avoided giving such a drug with possible side effects, to a child. None of the members of the forum had any medical background. Nor was any expert opinion called for, as per recommendations in the “Jacob Mathew vs State of Punjab” judgement and indeed followed in theMartin F. D’Souza vs. Mohd. Ishfaq (SC 17.02.2009) to name one of many other cases.
In the latter case a patient developed deafness following the use of an antibiotic. AIIMS nominated Dr P. Ghosh, whose report, submitted before the Commission, stated that the drug Amikacin was rightly administered by the appellant as a life saving measure. “It is submitted by the appellant that the said report further makes it clear that there has been no negligence on the part of the appellant.” In the Bengaluru case too, if the drug had not been used, there was the risk of the patient going into “status epilepticus” a potentially life threatening condition. Hence the use was justifiable in indication, choice and dosage by any standards anywhere in the world.
The judgment rests on the forums proclamation that the doctor was aware of the risks and yet prescribed the drug; thereby negligence was established. There was no previous history of drug reactions. The dosage was not questioned. This the most ridiculous, ill-informed and irrational statement I have ever come across. Section 88 of the IPC states “Nothing, which is not intended to cause death, is an offence by reason of any harm which it may cause, or be intended by the doer to cause, or be known by the doer to be likely to cause, to any person for whose benefit it is done in good faith, and who has given a consent, whether express or implied to suffer that harm, or to take the risk of that harm.” It therefore appears that the physician was protected from accusations of negligence.
More important; the standard desktop reference texts for prescribing are the MIMS (Monthly Index of Medical Specialties), the IDR (Indian Drug Review), the BNF (British National Formulary) and the FDA from the US. I challenge the members of the forum who passed this outrageous verdict to identify one single drug in any of these texts (or any other for that matter) which has absolutely no side effects. Those sort of pipe dream claims are usually attributed to quacks. One weighs the options, makes an informed decision and advises the patient. What happens if you prescribe versus what happens if you don’t prescribe? There would have been serious consequences if the drug had not been prescribed, amounting to gross criminal negligence. Furthermore, the forum not only ignored all previous SC judgments on this issue, but also failed to request the opinion of a medical expert. In short, the forum is guilty of serious miscarriage of justice. They say a bad law is the worst form of tyranny. I would add, a bad judgment is even worse.
Using the same logic, if a customer developed a severe anaphylactic reaction eating prawns or mushrooms in a restaurant, would the customer be entitled to make a claim against the owner of the restaurant? After all no restaurant menu warns you of the possibility of an allergic reaction to certain items of food it serves.
The unfortunate incident does evoke sympathy. A child did suffer, and common sense suggests some degree of compensation. But surely the solution does not lie in imposing a greater evil. A more reasonable option would have been to settle for a “No Fault Compensation”; a concept discussed in great detail in a BMJ article in May 2003 by William Gaine. Whether such a system would be acceptable to lawyers would be a subject of further debate for obvious reasons.
In Cicero’s story, Dionysius, tired of Damocles’ sycophancy, made him emperor for a day. As Damocles sat enjoying the pleasures of the role, a sword hung over him suspended by a single horse’s hair. Recognizing the perils of his untenable position, Damocles rapidly opted out. We sincerely hope the medical profession does not go the same way.
(The writer is a founder member of the Voluntary Health Association of Goa).
