WP (Civil) No. 9676/2007 page 1 of 21 IN THE HIGH COURT OF DELHI AT NEW DELHI W.P. (C) 9676/2007 UNION OF INDIA ..... Petitioner Through: Mr. J.P. Sharma, Advocate versus SUSHEELA MATHAI & ANR ..... Respondents Through: Mr. K.K. Aggarwal, Advocate for R-1 CORAM: JUSTICE S. MURALIDHAR 1. Whether Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to the Reporter or not? Yes 3. Whether the judgment should be reported in Digest? Yes JUDGMENT 18.05.2010 S. Muralidhar, J. (open court) 1. This is an instance of a pointless and vexatious litigation by the Union of India („UOI‟) through its Director, Central Government Health Scheme („CGHS‟) seeking to challenge an order dated 30th July 2007 made by the National Human Rights Commission („NHRC‟), recommending that the UOI should pay Respondent No.1 compensation of Rs. 1 lakh for the negligence of the CGHS dispensary at Pushp Vihar, New Delhi indenting a wrong medicine which was administered to her daughter with disastrous results. What is a matter of concern is that the UOI admitted before the NHRC, and before this Court as well, that the personnel at the said CGHS dispensary were negligent and that their act “has been viewed very seriously” by it. Yet, the UOI contends that the compensation awarded WP (Civil) No. 9676/2007 page 2 of 21 by the NHRC is „excessive‟. For Respondent No.1, a widow undergoing the pain and trauma of having to care for her hapless daughter, who is battling the irreversible side effects of the wrong medicine, this litigation is the last thing that was needed to compound her misery. 2. The travails of Respondent No. 1 Mrs. Susheela Mathai began in 1992 when her husband expired after a cardiac arrest. By 2004, her daughter Ms. Sunita, aged 28 years, had been receiving prolonged treatment under a specialist at the Ram Manohar Lohia Hospital („RML Hospital‟), New Delhi for cerebral seizure. Ms. Sunita had been showing slow and steady improvement. On a routine examination of Ms. Sunita on 21st February 2004, Dr. Dinkar Minz, the Specialist at the RML Hospital prescribed a tablet „Tab Thai (75 mg)‟ along with certain other medicines. This was to be taken for two months. Since Respondent No.1 was registered with the CGHS, she submitted the prescription written out by Dr. Minz to the CGHS Dispensary No. 65 at Pushp Vihar for the issue of the medicines. The authorized chemist of the CGHS dispensary did not have the medicine. Therefore Respondent No.1 was allowed the facility of local purchase subject to reimbursement. Admittedly the said medicine was wrongly indented by the Pharmacist at the CGHS Dispensary as „Thioril-50‟ which is a Schedule-H drug instead of „Thai (75mg)‟. When she took the indented prescription to the chemist, M/s. Dinesh Medicos, she was given Thioril-50 as was indented by the Pharamcist at the Pushp Vihar CGHS Dispensary. At WP (Civil) No. 9676/2007 page 3 of 21 that stage, Respondent No. 1 had no means of doubting that this was a mistake and a very serious one committed by the CGHS dispensary. After Ms. Sunita had consumed the said medicine for a few days, her condition deteriorated. She underwent severe depression and became extremely abnormal and violent. She even failed to recognize her immediate family members and her memory faded. Her physical health deteriorated after consuming the said medicines. 3. The petitioner UOI sates that its records show that the same medicine was indented by the CGHS Dispensary on 20th March and 21st April 2004 as well. According to Respondent No. 1, when she visited the CGHS Dispensary for a third time on 21st April 2004, Dr.Chhanda Dutta the Chief Medical Officer („CMO‟), CGHS Dispensary No. 65, Pushpa Vihar, noted in the prescription “not clear” against the medicine „Tab THAI (75mg)‟. Copies of these documents have been placed on record. Respondent No. 1 states that she enquired of the CMO why, if there was a doubt about the medicine that had been prescribed, a different medicine was indented and asked to be procured and administered to her daughter. 4. On 8th May 2004 Respondent No. 1 took her daughter for a review to Dr. Dinkar Minz who, after examining her, diagnosed her condition to be precarious on account of administering of the wrong medicine „Thioril 50‟. According to Dr. Minz, Thioril-50 was a Schedule H anti-psychotic drug used to treat schizophrenia and other psychotic disorders. On the other hand, „Thai‟ was a brand of Thiamine a „B‟ WP (Civil) No. 9676/2007 page 4 of 21 complex group medicine. According to the UOI, on 8th May 2004 Dr. Minz again wrote out a prescription for THAI 75 for three months. It is claimed that thereafter the correct medicine THAI 75 was indented for the months of May and June 2004. However, by that time irreversible damage to Ms. Sunita‟s health had resulted on account of the wrong medicine. Respondent No.1 states that that although „Thioril 50‟ was stopped immediately thereafter Sunita‟s condition did not improve. The deterioration of Sunita‟s health added to the agony and suffering of Respondent No. 1. 5. On 30th July, 2004 Respondent No.1 sent a complaint to the District Consumer Disputes Redressal Forum (DCDRF) (South District) seeking compensation for the negligence of the CHGS staff in indenting a wrong medicine. A copy was marked to the Director, CGHS. On 14th Match 2005 she made a complaint to the NHRC requesting that “an enquiry be got conducted and direction be issued for taking appropriate action and payment of financial compensation to me.” 6. On 6th April 2005 the NHRC forwarded the complaint of Respondent No.1 to the Director General, CGHS and called for an action taken report within six weeks. A reminder was issued by the NHRC on 20th July 2005. A third reminder was sent on 5th January 2006 to the CGHS stating that the NHRC had taken “a serious view about the non-receipt of the report”. On 6th February 2006, the Additional Director CGHS wrote to the NHRC stating that “the WP (Civil) No. 9676/2007 page 5 of 21 investigation is at its final stage and the outcome will be communicated soon.” On 13th June 2006 the NHRC wrote to the Director General CGHS stating that the NHRC had taken a “very serious view” and that if the report was not received within four weeks the NHRC would be constrained “to invoke the provisions of Section 13 of the Protection of Human Rights Act, 1993. (PHRA)” 7. Thereafter the Additional Director, CGHS (HQ) wrote the following letter dated 23rd June 2006 to the NHRC: “The Deputy Registrar (Law), National Human Rights Commission, (Law Division), Faridkot House, Copernicus Marg, New Delhi – 110 001. Subject: Issue of wrong medicine by the CGHS Dispensary No. 65, Pushpa Vihar, Sector-I, New Delhi – 17. Ref: Case No.102/30/2005-2006/UC Sir, In continuation of this office letter of even No. dated 6th February 2006 an investigation was conducted into the allegation contained in the complaint of Mrs. Susheela Mathai and forwarded by your office vide letter dated 7th April 2006. This matter has been examined/ investigated by senior officer and erring officials and officers have been suitably warned/ advised accordingly and given instructions to be more careful in future. The inconvenience caused is regretted. Yours faithfully, Sd/- WP (Civil) No. 9676/2007 page 6 of 21 (Dr. Bhaskar Behera) Additional Director CGHS (HQ)” 8. The UOI has placed on record a copy of an Office Memorandum („OM‟) dated 22nd May 2006 issued to Shri B.R. Gautam, Pharmacist at the CGHS Dispensary No. 65, Pushpa Vihar, Sector-1, New Delhi. It has also placed on record a copy of the OM of the same date issued to Dr. (Mrs.) Chhanda Dutta, CMO (Incharge), CGHS Dispensary No. 65. The OM issued to Shri B.R. Gautam reads as under: “OFFICE MEMORANDUM An enquiry was conducted by the complaint committee of CGHS (SZ) regarding issuance of wrong medicine to Ms Sunita d/o Mrs Susheela Mathai. The enquiry committee found you negligent while indented the medicine prescribe by Specialist Dr. Ram Manohar Lohiya Hospital, which has been viewed very seriously. You are hereby warned to be more careful in future.” 9. The OM issued to Dr. (Mrs.) Chhanda Dutta reads as under: “OFFICE MEMORANDUM An enquiry was conducted by the complaint committee of CGHS (SZ) regarding issuance of wrong medicine to Ms Sunita d/o Mrs Susheela Mathai. The enquiry committee observed that there is a lack of proper supervision on the part of the CMO I/o Dr. (Mrs.) Chhanda Dutta as such she has been advised be more careful in future.” 10. After examining the response of the CGHS, the NHRC on 8th August 2006 directed a show cause notice to be issued to the CGHS WP (Civil) No. 9676/2007 page 7 of 21 why recommendation should not be made for payment of interim compensation under Section 18 (3) PHRA. Consequent thereto on 13th September 2006 a show cause notice was issued to the Director, CGHS. The said notice inter alia stated that “the report submitted by the Additional Director, CGHS admits of negligence in indenting and issuing wrong medicine vis-a-vis the one prescribed by the specialist at RML Hospital. Such negligence endangered the life of the daughter of the complainant and she remained under treatment for the effects of the wrong medicine thereafter. This is a case of serious violation of human rights.” 11. In response to the said notice, the Additional Director CGHS replied on 9th January 2007 stating that the omission on the part of the employee was not intentional and he had been warned accordingly. It was stated: “Humble apology is tendered with a request to drop the case.” 12. The matter was thereafter heard by the NHRC on 30th July 2007 and it passed the following order: “Additional Director, CGHS admitted vide letter dated 23rd June 2006 that a wrong medicine had been indented and given to the patient. Therefore, the Commission vide proceedings dated 8th June (sic August) 2006 issued notice to Director, CGHS under Section 18 (3) of the Protection of Human Rights Act 1993. Director, CGHS responded to the show-cause notice vide communication dated 9th January 2007 and pleaded that the omission and commission on the part of the WP (Civil) No. 9676/2007 page 8 of 21 concerned employee was inadvertent and unintentional. He tendered an apology and requested the Commission to drop the case. Realization of mistake and tender of apology by CGHS cannot bring relief to the complainant whose daughter had to pass through a trauma as a result of administration of wrong medicine. The girl has still not fully recovered. The complainant being a working cannot leave her daughter unattended at home and she has apprised the Commission of her decision to admit her daughter in a hostel for mentally retarded persons at Ahmedabad. She has also produced many cash memos and vouchers showing the expenses which she had incurred on medicines and investigations after deterioration in the health of her daughter. She has produced investigation reports and she states that the corresponding vouchers were torn by her daughter in a fit of anger. Considering all the circumstances, the Commission is of the opinion that the complainant should be appropriately compensated for the expenses incurred by her and also for the suffering she and her daughter had to pass through. Therefore, the Commission recommends to Director, CGHS to pay an amount of Rs. one lakh as monetary relief to the complainant. Compliance report along with proof of payment be submitted within eight weeks.” (emphasis supplied) 13. The above order dated 30th July 2007 was communicated to the UOI by a letter dated 25th August 2007. It is the said order that has been challenged by the UOI in this petition which was filed on 19th WP (Civil) No. 9676/2007 page 9 of 21 December 2007. On 7th January 2008 the following order was passed by this Court: “WP(C) 9676/2007 Subject to the Petitioner paying a sum of Rs.15,000/- on account of litigation expenses within a period of two weeks from today to the Respondents and filing proof thereof in the Registry, issue notice to the Respondents to show cause as to why the rule nisi be not issued, returnable on 19th March 2008. CM No. 18242/2007 Notice, returnable on 19th March 2008. Subject to the awarded amount being deposited in this Court within a period of four weeks from today, there shall be a stay of the effect and operation of the impugned order dated 25th August 2007. The amount as and when deposited by the Petitioner shall be kept in a fixed deposit receipt initially for a period of six months. The fixed deposit receipt shall be kept renewed by the Registry from time to time till further orders of this Court. Dasti.” 14. Thereafter, the compensation amount was deposited in this Court by the UOI. The Respondent No.1 availed of the services of Mr. K.K.Agarwal, a panel lawyer of the High Court Legal Services Committee. 15. On 2nd December 2009 the following order was passed by this Court: “The admitted position in the present case is that Ms. WP (Civil) No. 9676/2007 page 10 of 21 Sunita Mathai was administered medicine THIORIL-50 instead of THAI (75 mg). It is a case of the Respondents that because of wrong medicine THIORIL -50 Ms. Sunita Mathai went into depression and became very abnormal/violent. The Director, All India Institute of Medical Sciences will ask Head of the Department, Neurology to examine and furnish a report whether administration and use of medicine THIORIL -50 for a period of eight days/two months can have adverse impact on a patient, who is suffering from seizure/schizophrenia. The HOD, Neurology is requested to submit his report within a period of two months. Counsel for the Petitioner will verify in the Registry and get his application placed on record. If required, the Petitioner may file a new application after signatures and verification. List again on 25th February 2010.” 16. When the report from the AIIMS was not forthcoming this Court passed the following order on 25th February 2010: “1. A reminder be sent to the Director, All India Institute of Medical Sciences („AIIMS‟). In addition to that the Standing counsel for the AIIMS in the High Court will also be given a copy of the earlier order passed by this Court with the request to the Director, AIIMS to expedite the report sought for by this Court. 2. A copy of this order be sent to the Director, AIIMS within three days. 3. List on 12th May 2010.” WP (Civil) No. 9676/2007 page 11 of 21 17. Pursuant to the above order the AIIMS communicated to this Court the comments of Professor Madhuri Behari, HOD Neurology, AIIMS. Her note reads as under: “Thioril is chemically thioridazine used in cases of bipolar disorders and schizophrenia. Common side effects are constipation, decreased sweating, dizziness, drowsiness, dryness of mouth, nasal congestion. Less common side effects are change in menstrual period, decreased sexual ability, skin rash, itching, sun burns and swelling and pain in breasts. Rare side effects are: It can precipitate convulsions or seizures, fast breathing, fast pulse, changes in blood pressure, pale skin and tiredness. Other side effects are: abnormal movements of face, tongue, jaw, cheek etc. It should be used with caution in people with epilepsy.” (emphasis supplied) 18. This Court has heard the submissions of Mr. J.P. Sharma, learned counsel appearing for the Petitioner and Mr. K.K. Aggarwal, learned counsel for Respondent No. 1. 19. Mr. Sharma learned counsel for the UOI first submitted that the Respondent No.1 had in her complaint before the NHRC suppressed the fact that she had already approached the DCDRF for relief under the Consumer Protection Act, 1986 (CPA). Therefore in terms of Section 36 PHRA, the NHRC could not have entertained her complaint as long as her complaint before the DCDRF was pending. Secondly, although it was not disputed that the CGHS Dispensary at WP (Civil) No. 9676/2007 page 12 of 21 Pushp Vihar was found to have been negligent by the inquiry conducted by the CGHS itself, the burden was on Respondent No. 1 to establish the „causal link‟ between the administering of „Thioril 50‟ to Ms. Sunita on account of the wrong indenting by the CGHS Dispensary and the present condition of Ms. Sunita. He pointed out that Respondent No.1 herself had made the local purchase of the medicine and therefore could not be said to be unaware of the wrong medicine. He placed considerable reliance on the decision of the Supreme Court in C.P. Sreekumar (Dr.) MS (Ortho) v. S. Ramanujam (2009) 7 SCC 130 and in particular the passage where the court cautioned about “too much suspicion about negligence of attending doctors”. It was next submitted by Mr. Sharma that the compensation awarded by the NHRC in this case was “excessive” and this was one of the deserving cases which required interference by this Court. 20. On the other hand, Mr. K.K. Aggarwal, learned counsel for the Respondent No. 1, supported the impugned order of the NHRC. He submitted that Respondent No. 1 was not pursuing her complaint before the consumer forum. He pointed out that in any event the case before the NHRC proceeded entirely on the admission of the CGHS that its staff had been negligent. He also referred to the decision of the Supreme Court in Spring Meadows Hospital v. Harjot Ahluwalia through K.S. Ahluwalia AIR 1998 SC 1801 and submitted that in cases of administration of wrong medicine exemplary damages was called for. WP (Civil) No. 9676/2007 page 13 of 21 21. This Court finds that before the NHRC the UOI did not raise the points it has raised before this Court. In particular, it did not object to the jurisdiction of the NHRC to deal with the complaint of Respondent No.1. Even otherwise, the objection is not well founded. Section 36 PHRA states that the NHRC shall not enquire into a matter which is pending before any other Commission. In fact in the present case, the enquiry by the committee constituted by the CGHS had itself substantiated the complaint of Respondent No.1. Consequently, there was no occasion for the NHRC to conduct an enquiry under Section 13 PHRA. In fact the NHRC only examined the question of making a recommendation for grant of interim compensation. Since the complaint before the NHRC proceeded entirely on the admission of negligence by the CGHS, thus obviating any enquiry by the NHRC, the objection of the UOI to the jurisdiction of the NHRC with reference to Section 36 of PHRA is without merit. 22. The UOI also did not urge before the NHRC that the burden was on Respondent No.1 to prove the negligence of the CGHS by establishing the causal link between the indenting by the CGHS of the wrong medicine and the present condition of Ms. Sunita. On the contrary, the CGHS informed the NHRC that its own enquiry had established that the CGHS Dispensary at Pushp Vihar was negligent in indenting the wrong medicine. The OM issued to Shri Gautam, Pharmacist stated that he was found „negligent‟ in indenting the medicine prescribed by Specialist, RML Hospital. The OM issued to the CMO stated that there was a “lack of supervision on the part of the WP (Civil) No. 9676/2007 page 14 of 21 CMO (Incharge) Dr. Dutta.” Both OMs referred to the fact that “an enquiry was conducted by the Complaint Committee of CGHS (SZ) regarding issuance of wrong medicine to Ms. Sunita daughter of Mrs. Susheela Mathai.” With the CGHS having informed the NHRC by 23rd June 2006 that “this matter has been examined/investigated by senior officer and erring officials and officers have been suitably warned/advised” it is not open to the UOI to now contend that Respondent No. 1 is required to establish a “causal link” and prove negligence on the part of the CGHS. 23. The impugned order of the NHRC notes that the only submission made by the Director, CGHS in response to the show-cause notice issued to it by the NHRC was an admission that “the omission and commission on the part of the concerned employee was inadvertent and unintentional.” The Director, CGHS tendered a “humble apology” and requested the Commission “to drop the case.” In the circumstances, it is inconceivable why the Respondent No. 1 should thereafter be required to prove negligence of the CGHS all over again. Consequently, the reliance placed by the learned counsel for the UOI upon the decision in C.P. Sreekumar (Dr.) MS (Ortho) v. S. Ramanjam is misplaced. 24. In the face of the above uncontestable position, it is surprising that the UOI has come up with untenable pleas in this petition. Referring to the fact that Respondent No. 1 had been given the authority to make a local purchase of the medicine indented from the market, subject to WP (Civil) No. 9676/2007 page 15 of 21 reimbursement, the UOI in its rejoinder contends that when Respondent No.1 “again presented the aforesaid prescription on 21st April 2004 and this time she would be in better know of the medicine by its label etc. being educated understanding the difference between Thai 50 – Thioril 75, by the wrapper etc. as she has herself to administer the medicine as admitted by the Respondent No.1.” In the first place no such point was urged before the NHRC. In fact the CGHS itself informed the NHRC that its Complaint Committee had found that the CGHS Dispensary at Pushp Vihar had been negligent in indenting the wrong medicine. Secondly, the fact is that unless a medicine, that is not available in the authorized clinic of the CGHS, is indented by the CGHS dispensary, local purchase of such medicine from the market is not permitted. The crucial part therefore was of indenting the medicine, which was done by the Pharmacist at the CGHS Dispensary. Obviously, a lay person like Respondent No.1 cannot be expected to know if what has been indented is the correct medicine or not. She would obviously trust the Pharmacist to know his job. It makes no difference if the person who is given such prescription is educated or not. Even a lay educated person is unlikely to be able to discern the difference between „Thai‟ and Thiroil. Sometimes „equivalent‟ medicines are administered. This is therefore entirely the responsibility of the CGHS. Its attempt at placing the blame on Respondent No.1 deserves to be deprecated. 25. The last submission made by Mr. Sharma, the learned counsel for the Petitioner, is that the compensation of Rs. 1 lakh awarded to WP (Civil) No. 9676/2007 page 16 of 21 Respondent No.1 by the NHRC was excessive. It is stated by learned counsel for the Petitioner that since Ms. Sunita was a chronic patient of cerebral seizure for more than six months “it is not established that the condition of the patient has worsened, if at all, by the administration of wrong medicine.” 26. Administering a wrong medicine to an otherwise healthy person which results in an irreversible deterioration of such person‟s health is far too serious a violation of that person‟s right to life under Article 21 of the Constitution. As pointed out by the NHRC, it is indeed a grave violation of the human rights of such person. 27. The UOI ought not to be permitted to advance the above submission about „excessive‟ compensation when its own Complaint Committee has held its staff to be negligent in administering a wrong medicine. The report of Professor Madhuri Behari, HOD, Neurology, AIIMS confirms that there are serious side effects that can ensure if „Thioril‟ is administered. The rare side effects include “convulsions or seizures, fast breathing, fast pulse, changes in blood pressure, pale skin and tiredness.” The report confirms that Thioril is a Schedule H drug meant for treating psychotic disorders and is not meant to be casually prescribed and administered.