National Consumer Disputes Redressal
Dr. Baidya Nath Chakraborty vs Shri Chandi Bhattacharjee on 24 April, 2014
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO.19 of 2009 (From the order dated 31.10.2008 in Complaint No.110/0/2000 of the West Bengal State Consumer Disputes Redressal Commission.) 1. Dr. Baidya Nath Chakraborty, Consultant of Institute of Reproductive Medicine DD-18/5/1,Salt Lake City, Kolkata 700064 2. Dr. Manju Chakraborty W/o Dr. Baidyanath Chakraborty Doctor-in-Charge of Institute of Reproductive Medicine DD-18/5/1, Salt Lake City, Kolkata 700064 And Doctor-in-Charge of M/s Merryland Nursing Home No. P-46, C.I.T. Road, Kolkata 700014. 3. Institute of Reproductive Medicine DD-18/5/1, Salt Lake City, Kolkata 700064. ..Appellants Vs. 1. Shri Chandi Bhattacharjee, S/o Late Sachindranath Bhattacharjee, R/o, Premises No. 17/1, Ekdalia Road, Kolkata 700019 Contesting Respondent 2. Merryland Nursing Home No. P-46, C.I.T. Road, Kolkata 700014. 3. The Peerless Hospital & B.K. Roy Research Centre, 360, Panchasayar, Kolkata 700001. ..Proforma Respondents BEFORE: - HONBLE MR. JUSTICE D.K. JAIN, PRESIDENT HONBLE MRS. VINEETA RAI, MEMBER For the Appellant : Mr. S.K. Ghosh and Mrs. Rupali Ghosh, Advocates For Respondent No.1 : In person. O R D E R
(Pronounced on 24 day of April, 2014) D.K. JAIN, J. PRESIDENT This appeal under Section 19 of the Consumer Protection Act, 1986 (for short the Act), has been preferred by the Consultant (Appellant No. 1), the doctor-in-charge (Appellant No. 2) and the Institute of Reproductive Medicine, Kolkata (Appellant No. 3), questioning the correctness and legality of order dated 31.10.2008 passed by the State Consumer Disputes Redressal Commission, West Bengal (for short the State Commission) in Complaint No. 110/0/2000. By the impugned order, the State Commission has, inter alia, directed Appellants No. 1 and 2 to pay to the Complainant a sum of `1.5 lakhs and `1 lakh respectively as compensation with costs, etc., on account of medical negligence on their part in treating and taking care of his wife and their preterm baby, who died within few hours of his birth.
2. The salient facts, as narrated in the Complaint, are that after two miscarriages, the Complainant and his wife decided to consult Appellant No. 1, Dr. Baidya Nath Chakraborty, considered to be a specialist in reproductive medicine. The doctor examined the lady on 17.01.1996 and 11.04.1996 and prescribed certain medicines, whereafter she conceived the third time. On one of the visits to Appellant No. 3 Institute, on 22.01.1997, a consent form for treatment at the Institute was got signed from the Complainant and his wife. On 10.02.1997, when his wife felt discomfort, she was taken to the Institute where she was advised to get admitted in one Merryland Nursing Home, Opposite Party No. 4 in the complaint and Respondent No.2 in this Appeal, as it was stated that the deliveries of all patients under the treatment of Appellant No.1 were performed at the said Nursing Home, managed by Appellant No 2; certain medicines were prescribed by the doctor and she was discharged. Again on 04.03.1997, for the same discomfort, when she was in her 28th week of pregnancy, she had to be admitted to the same Nursing Home. She was attended to by the same doctor who had attended on her on the earlier occasion. While she remained admitted in the said Nursing Home, neither Appellant No. 1 nor Appellant No. 2 visited her. On 08.03.1997, i.e. after four days of her admission, from 12.30 p.m. to 7.30 p.m., while she was trembling and was in great pain still despite repeated requests, Appellant No. 1 did not examine her as he was stated to be busy in a seminar. It was around 9.30 p.m., that Appellant No. 2, wife of Appellant No.1, performed the preterm delivery in the absence of any Neonatologist. Since there was no arrangement for neonatal care in the Nursing Home for a preterm infant, at Complainants request, the Nursing Home staff contacted one Dr. Amit Roy, a Neonatologist, who advised them to shift the baby to the Peerless Hospital and B.K. Roy Research Centre, Respondent No. 3 in this appeal. The baby was shifted to the said hospital in a taxi and admitted around at 2.10 a.m. on 09.03.1997. However, he expired the same morning at 8.55 a.m.
3. Alleging gross negligence on the part of the Appellants, the Complainant filed complaint under Section 17 of the Act, praying for compensation of `10 lakhs for the death of the baby and for loss of mental balance of his wife because of excessive shock, mental and physical pain/torture on account of death of the child.
4. The complaint was contested by the Appellants as also by the Nursing Home. A common written statement was filed by Appellants No. 1 to 3. The Nursing Home and Peerless Hospital filed their separate objections. All the allegations of medical negligence either in diagnosis, prescription of medicines or inadequate attention by the Nursing Home were denied. It was stated that when Complainants wife experienced labour pain on 08.03.1997, Appellant No. 2 had herself conducted the delivery, which was normal; she had herself contacted the Neonatologist at the Peerless Hospital and arranged for shifting of the infant to the said hospital. It was also stated that the exigency for shifting of the baby to the Peerless Hospital had been duly explained to the Complainant and his wife on their very first visit and they had given their consent to such arrangement by voluntarily signing the consent form. However, as the baby was preterm and chances of his survival were dim, the Neonatologist at the Peerless Hospital could not save him despite best efforts.
5. On appraisal of the documents and the evidence led by the parties on affidavits and interrogatories, the State Commission has come to the conclusion that the Complainant and his wife wanted to be treated exclusively by Appellant No. 1 and had been consulting him from time to time but at the crucial time, he did not turn up to attend to his patient, despite his being in Kolkata attending some seminar; he did not bother to examine her either on 04.08.1997 or on 08.03.1997; on 08.03.1997 the delivery was performed by Appellant No. 2, even though Appellant No. 1 had taken upon himself the responsibility for diagnosis and treatment of wife of the Complainant as she was a high risk patient; he did not make himself available for treating her during emergency; despite being a high risk patient(case of preterm labour), the delivery procedure was performed at a Nursing Home where neonatal facilities were not available; after the birth of the premature baby, no proper arrangement was made for shifting him to the Peerless Hospital, and the baby was carried in a Taxi exposing him to increased risk to life. Thus, holding Appellants No. 1 and 2 to be negligent in treatment of the mother and proper care of her preterm baby, the State Commission has directed them to pay to the Complainant the aforesaid amounts with a further direction that if the said amounts are not paid within two months from the date of the order, interest @ 10% p.a. shall be payable thereon for the entire period of default. Hence the present appeal.
6. We have heard Mr. Sanjay Kumar Ghosh, Learned Counsel for the Appellants. The Complainant, appeared in person and supported the impugned order.
7. Ld. Counsel for the Appellants submitted that the order of the State Commission is erroneous inasmuch as a finding of medical negligence has been recorded without there being any expert medical opinion, suggesting or proving such negligence on the part of the Appellants. It was pleaded that merely because Appellant No. 1 was not present at the time of delivery, which could not be pre-scheduled and was undertaken on emergency basis, it cannot be held that he was medically negligent. It was asserted that best possible treatment was provided by Appellant No. 2, a senior gynecologist and a member of the team of doctors working under direct supervision and guidance of Appellant No. 1. It was argued that when the wife of the Complainant was admitted in the Nursing Home, he was duly informed that the said Nursing Home did not have neonatal facilities and, therefore, in case of any need the preterm baby may have to be shifted to another Hospital having such facilities. The Complainant having consented to the arrangement and voluntarily signed the consent form, the State Commission erred in holding Appellants No. 1 & 2 grossly negligent for not admitting the patient in a hospital where neonatal facilities were available. The Complainant, on the other hand, while supporting the decision of the State Commission pleaded that in the light of the observations and findings of the State Commission, in fact the compensation awarded deserves to be enhanced.
8. The principal question for consideration is as to whether there was any medical negligence, and/or deficiency in service on the part of Appellants No. 1 & 2, both at the pre-delivery and post-delivery stages in the treatment of Complainants wife and in providing neonatal facilities to the preterm infant?
9. Generally speaking, Negligence is the omission to do what the law requires, or the failure to do anything in a manner prescribed by law. It is the act which can be treated as negligence without any proof as to the surrounding circumstances, because it is contrary to the dictates of ordinary prudence. Negligence is strictly nonfeasance and not malfeasance. (See: Malay Kumar Ganguly Vs. Dr. Sukumar Mukherjee & Ors. and Kunal Saha (Dr.) Vs. Dr. Sukumar Mukherjee & Ors. (2009) 9 SCC 221.)
10. The term negligence defies any precise meaning. Eminent jurists and leading Judgments on the point have assigned various meanings to the said term. In the Law of Torts, Ratanlal & Dhirajlal (26th Ed., 2010) at page 474, Justice G.P. Singh, summarized the concept of negligence as follows:-
Negligence is the breach of a duty caused by the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. Actionable negligence consists in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill, by which neglect the plaintiff has suffered injury to his person or property. According to Winfield, negligence as a tort is the breach of a legal duty to take care which results in damage, undesired by the defendant to the plaintiff. The definition involves three constituents of negligence: (1) A legal duty to exercise due care on the part of the party complained of towards the party complaining the formers conduct within the scope of the duty; (2) Breach of the said duty; and (3) consequential damage.
11. Halsburys Laws of England (Fifth Ed. Vol.
78) states the nature of negligence liability as under:-
Negligence is a specific tort and in any given circumstances is the failure to exercise that care which the circumstances demand.
What amounts to negligence depends on the facts of each particular case. It may consist in omitting to do something which ought to be done or in doing something which ought to be done either in a different manner or not at all.
12. The law of negligence applies to doctors, as it applies to other professionals like lawyers, architects, etc., as they are required to perform the task assigned to them with the requisite skill and expertise possessed by them for performing that task. Any reasonable man entering into a profession which requires a particular level of learning to be called a professional of that branch, impliedly assures the person dealing with him that the skill which he professes to possess shall be exercised with reasonable degree of care and caution.
13. In Bolam V. Friern Hospital Management Committee (1957) 2 All ER 118 (QBD), oft-quoted as Bolam test, generally accepted as a true enunciation of the meaning of the expression negligence by the medical practitioners, McNair J. said:
In the ordinary case which does not involve any special skill, negligence in law means this:
Some failure to do some act which a reasonable man in the circumstances would do, or doing some act which a reasonable man in the circumstances would not do; and if that failure or doing of that act results in injury, then there is a cause of action. How do you test whether this act or failure is negligent? In an ordinary case it is generally said, that you judge that by the action of the man in the street. He is the ordinary man. In one case it has been said that you judge it by the conduct of the man on the top of a Clapham omnibus. He is the ordinary man. But where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus. Because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill at the risk of being found negligent. It is well-established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art. (Emphasis supplied).
14. In Jacob Mathew Vs. State of Punjab & Anr. (2005) 6 SCC 1, a three Judge Bench of the Supreme Court, discussed the law of negligence under Tort Law, in extenso. Chief Justice R.C. Lahoti, speaking for the Bench observed that negligence becomes actionable on account of injury resulting from the act of omission amounting to negligence attributable to the person sued. It was held that essential components of negligence, as recognized, are three: duty, breach and resulting damage, that is to say:
(1)the existence of a duty to take care, which is owed by the defendant to the complainant;(2)
the failure to attain that standard of care, prescribed by the law, thereby committing a breach of such duty; and (3) damage, which is both causally connected with such breach and recognized by the law, has been suffered by the complainant.
If the claimant satisfies the court on the evidence that these three ingredients are made out, the defendant should be held liable in negligence.
Observing that the test for determining medical negligence as laid down in Bolam case (supra) holds good in its applicability in India, the Honble Court inter-alia, came to the following conclusions:-
(i) Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do.
(ii) A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed.
(iii) A professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill, which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession.
15. In so far as the duties which a doctor owes to his patient are concerned, in Dr. Laxman Balkrishna Joshi V. Dr. Trimbak Bapu Godbole (1969) 1 SCR 206: AIR 1969 SC 128 the Supreme Court, dealing with a case under the Fatal Accidents Act, 1855, observed that a person (doctor) who holds himself out ready to give medical advice and treatment impliedly undertakes that: (i) he is possessed of skill and knowledge for that purpose; (ii) when consulted by a person, such a person owes a duty of care in deciding whether to undertake the case; (iii) a duty of care in deciding what treatment to give; and (iv) a duty of care in the administration of that treatment. A breach of any of these duties would give a right to the patient of action for negligence against the doctor. (Also see: Indian Medical Association Vs. V.P. Shantha & Ors. (1995) 6 SCC 651; Kusum Sharma Vs. Batra Hospital (2010) 3 SCC 480.
16. It is therefore, trite that a doctor cannot be held negligent if he has acted with normal care, in accordance with a recognized practice accepted as proper by a responsible body of medical men, skilled in that particular field, even though there may be body of opinion that takes a contrary view.
Nevertheless, if a doctor professes that he is a specialist, possessing some special skills to deal with a particular ailment or condition, he is expected to exercise a higher degree of care than a general practitioner, whose conduct is to be judged on a different parameter.
A specialists duty to observe due care has to be equivalent to that of a similar specialist possessing the requisite skill in that particular branch of medicine. To put it pithily, the conduct of a general practitioner is to be judged on the touchstone of the conduct of a general practitioner, whereas the conduct of a professed specialist has to be at par, if not better, with the conduct of a similarly skilled specialist. Thus, a specialist has to exercise a higher degree of care than a generalist. Further, even amongst specialists if one specialist claims that he is better skilled as compared to others in the same field, the general perception and expectation in the mind of the patient would be of a better and higher degree of treatment and care as compared to other specialists. This expectation imposes a greater degree of care upon such a super specialist.
17. In the present case, it is not in dispute that the Complainant and his wife had consulted Appellant No. 1 for their problem of recurring miscarriages, as a specialist for treatment of couples with problems of infertility and recurrent pregnancy wastage; the lady was under treatment of Appellant No. 1 and in fact, on his advice, on 22.11.1996 she was admitted in Appellant No. 3 Institute and on 24.11.1996 Shirodkars stitch was performed by Appellant No. 2 and she was discharged on 27.11.1996 and she was again examined by Appellant No. 1 on 22.01.1997, who advised proluton depot, a progesterone, considered to be beneficial in reducing the risk of preterm delivery. On this date, a consent form was also got signed from the Complainant and his wife. In so far as the eventful period from 10.02.1997 to 08.03.1997 is concerned, the stand of the Appellants, in their common Written Statement was as follows:
(m) When on February 10, 1997 the wife of the complainant/petitioner felt some discomfort she went to the Institute of Reproductive Medicine. As most of the doctors there, including the opposite party no. 1, were away attending a medical conference at Science City, the duty nurse advised the complainant/petitioner to admit his wife into Merryland Nursing Home, where she was looked after by Dr. Nirmal Das till the opposite party no. 2 arrived and took charge of the patient. After the pain had subsided she was discharged and was advised by the opposite party no.
2 to continue the medicines prescribed by the opposite party no. 1 up to the next check-up date i.e. up to March 12, 1997.
(n) On March 4, 1997 the complainant/petitioners wife again experienced some discomfort and got herself admitted to Merryland Nursing Home. As the opposite party no. 1 was not available and the opposite party no. 2 was attending to her other patients at the clinic, the abovementioned Dr. Nirmal Das attended to the patient. He had a discussion with the opposite party no. 2 before prescribing Duvadilan to delay labour by a few hours. The opposite party no. 2 arrived soon and by that time the wife of the complainant/petitioner was feeling well.
(o) On March 8, 1997 when the complainant/petitioners wife experienced labour pain the opposite party no. 2 herself conducted the delivery of the baby. She contacted the neonatologist at the Peerless Hospital and arranged for the transfer of the baby to the said hospital. The need for such transfer to Peerless Hospital had been told to the complainant/petitioner and his wife at their first antenatal visit and they readily consented to such arrangement and voluntarily signed the consent from.
However as the baby was premature the chances of survival were limited and in spite of all his efforts, Dr. Amit Roy, the neonatologist at Peerless Hospital could not save the baby.
(p) The opposite party no. 2, whose qualifications and experiences will show that Dr. Baidyanath Chakroborty had rightly entrusted her with his responsibilities in his absence, continued to attend to the wife of complainant/petitioner till she was discharged on March 13, 1997. The opposite party no. 2 is an M.B.B.S., D.G.O., M.D. and has been working as Senior clinical consultant, Institute of Reproductive Medicine at HB/36/A/3, Sector-III, Salt Lake, Calcutta
-64. She has to her credit twenty scientific papers as first and co-author published in different national and international journals.
18. It is manifest from the above, that Appellant No. 1 did hold out that he specialized in treatment of couples with problems of infertility and recurrent pregnancy wastage and his Institute, Appellant No. 3, had become a pioneer in this filed in the Eastern part of India. It was claimed that they were training students and offering treatment facilities in Reproductive Medicines. In other words, it was represented that in eastern region he and the Institute was providing best treatment to the patients suffering from the said problems. Undoubtedly, such claims do raise legitimate expectation in the mind of the patient that he or she would get best possible treatment and care from such a doctor/institute professing such claims. It can reasonably be inferred that in the instant case, having already suffered two miscarriages, the Complainant and his wife consulted Appellant No. 1 with the hope that being a specialist, they would get best possible treatment and care from the Appellants.
19. It needs little emphasis that ante natal care is an extremely important and integral part of medical care. In the present case, in his cross-examination, Appellant No. 1, admitted that: Complaints wife was a high risk patient; on 10.02.1997 she was attended to only by a junior Doctor viz. Dr. Pratima Dasgupta as he and his other doctors were attending a Conference in the Science City Auditorium; although the presence of a Neonatologist is essential at the time of pre-mature delivery but at the time of delivery of Complainants wife, a Neonatologist was not present because the delivery was not preplanned. He, however, did not remember whether he had ever visited Merryland Nursing Home during the period from 04.03.1997 to 13.03.1997, when Complaints wife was admitted there. We are of the opinion that the Appellants, particularly Appellant No. 1, had failed to provide to the Complainant and his wife the requisite ante natal care, which they were required to provide. It is clear that neither on 10.02.1997 nor during the critical period between 04.03.1997 to 08.03.1997, when she was in labour, Appellant No. 1 visited the patient even once as he was stated to be busy in Seminar in the city.
Further, it is also hard to believe that during her admission in Merryland Nursing Home of which, Appellant No.2 was also Doctor-in-charge, the doctors attending on her could not anticipate a preterm delivery. It is evident from the statement of Appellant No. 1, that Dr. Pratima Dasgupta, an MBBS was acting on the instructions of Appellant No. 1. In his statement, he admitted that Dr. Pratima Dasgupta and Dr. Manju Chakraborty, MD, Appellant No. 2, who had performed preterm delivery, were part of his team and thus, fully aware that Complainants wife was a high risk patient, yet they did not make necessary preparations for a preterm delivery (28 week gestation) and preterm infant.
20. In Dewhursts Textbook of Obstetrics & Gynaecology, Prof. Phillip Bennett has opined that rates of neonatal morbidity and mortality are higher in babies transferred ex utero to neonatal intensive care units when compared to those born in the tertiary referral centre. Every effort should therefore be made to transfer a woman to an obstetric unit linked to a neonatal intensive care unit prior to a preterm delivery.
Admittedly, no neonatal facilities were available in Merryland Nursing Home, where preterm delivery was conducted.
Even a Neonatologist was not available at the time of the delivery and the baby was shifted to Peerless Hospital in a Taxi and not in an ambulance and that too after more than 2 hours of his birth. We are of the opinion that in the instant case, Appellants No.1 & 2 failed to provide the degree of care expected of a specialist. The three ingredients of negligence as enunciated in Jacob Mathew (supra) are established and, therefore, the Appellants are clearly guilty of medical negligence.
21. The next question arising for consideration is whether the Appellants can put forth as defence, the consent form signed by the Complainant and his wife on 22.01.1997, to cover up negligence on their part in failing to provide adequate treatment and care to Complainants wife, and their preterm baby, as expected of a specialist in that field?
22. There has always been a debate on the nature and extent of information that is required to be disclosed by a doctor to secure a valid and informed consent from a patient. Here in India, as against stringent standards regarding disclosure of information to the patient, now being adopted in some countries, the Bolam test, as the measure of doctors duty to disclose information about the potential consequences and risks of proposed medical treatment is being applied.
23. In Samira Kohli Vs. Dr. Prabha Manchanda & Anr. (2008) 2 SCC 1, while explaining the principle with regard to patients consent, a three Judge Bench of the Supreme Court observed that:
Consent in the context of a doctor-patient relationship, means the grant of permission by the patient for an act to be carried out by the doctor, such as a diagnostic, surgical or therapeutic procedure. Consent can be implied in some circumstances from the action of the patient. For example, when a patient enters a dentists clinic and sits in the dental chair, his consent is implied for examination, diagnosis and consultation. Except where consent can be clearly and obviously implied, there should be express consent. There is, however, a significant difference in the nature of express consent of the patient, known as real consent in UK and as informed consent in America. In UK, the elements of consent are defined with reference to the patient and a consent is considered to be valid and real when (i) the patient gives it voluntarily without any coercion; (ii) the patient has the capacity and competence to give consent; and (iii) the patient has the minimum of adequate level of information about the nature of the procedure to which he is consenting to.
On the other hand, the concept of informed consent developed by American courts, while retaining the basic requirements of consent, shifts the emphasis on the doctors duty to disclose the necessary information to the patient to secure his consent. Informed consent is defined in Tabers Cyclopedic Medical Dictionary thus:-
Consent that is given by a person after receipt of the following information: the nature and purpose of the proposed procedure or treatment; the expected outcome and the likelihood of success; the risks; the alternatives to the procedure and supporting information regarding those alternatives; and the effect of no treatment or procedure, including the effect on the prognosis and the material risks associated with no treatment. Also included are instructions concerning what should be done if the procedure turns out to be harmful or unsuccessful.
Referring to several Indian and foreign decisions on the point, and preferring the concept of real consent evolved in Bolam Case (supra), the Honble Court, inter-alia, summarized the principles relating to consent, as follows:
(i) A doctor has to seek and secure the consent of the patient before commencing a treatment (the term treatment includes surgery also). The consent so obtained should be real and valid, which means that: the patient should have the capacity and competence to consent; his consent should be voluntary; and his consent should be on the basis of adequate information concerning the nature of the treatment procedure, so that he knows what he is consenting to.
(ii) The adequate information to be furnished by the doctor (or a member of his team) who treats the patient, should enable the patient to make a balanced judgment as to whether he should submit himself to the particular treatment or not. This means that the doctor should disclose
(a) nature and procedure of the treatment and its purpose, benefits and effect;
(b) alternatives, if any, available; (c) an outline of the substantial risks;
and (d) adverse consequences of refusing treatment. But there is no need to explain remote or theoretical risks involved, which may frighten or confuse a patient and result in refusal of consent for the necessary treatment.
Similarly, there is no need to explain the remote or theoretical risks of refusal to take treatment which may persuade a patient to undergo a fanciful or unnecessary treatment. A balance should be achieved between the need for disclosing necessary and adequate information and at the same time avoid the possibility of the patient being deterred from agreeing to a necessary treatment or offering to undergo an unnecessary treatment.
24. It has thus been held that consent of the patient has to be on the basis of adequate information concerning the nature of the treatment procedure, so that he knows what he is consenting to. Adequate information should enable the patient to make a balanced judgment as to whether he should submit himself to the particular treatment or not, and it would include disclosure of information regarding alternatives, if any available.
25. Bearing in mind the afore-noted broad principles, we advert to the facts at hand. The consent form on which the signatures of the Complainant and his wife, consenting to the treatment at Appellant No. 3 Institute, even in the absence of antenatal monitoring facilities and neonatal care at Merryland Nursing Home, where Appellant No. 3s patients were confined for delivery, were obtained, is extracted below:
We would be happy to enroll you in our clinic at Institute of Reproductive Medicine. We would like to bring to your notice the facilities which we have during treatment including our limitations. In spite of all this if you feel you want to avail our treatment we will feel delighted to accept you.
Maternal aspects:-
Observation and treatment either at Instiutute of Reproductive Medicine or Merryland Nursing Home with its existing facility.
Confinement:-
At Merryland Nursing Home. Sophisticated antenatal monitoring facilities are not regularly available.
If such is mandatory shifting of patient to Bellevue Clinic is necessary.
For the New Born:-
Grade-I care is necessary for problem of infection, prematurity, severe jaundice etc. requiring intensive care the limitations are obvious at Merryland Nursing Home. In such cases babies have to be sent to centres with more sophisticated neonatal set up.
Finally the patients we deal with are all very high risk complicated cases, including the neonates. Even with our limitations we will give the best efforts for the patients. In spite of this catastrophies can occur as does happen even in the best centres. Such obvious facts have to be realised and accepted. Enlighting you with all these, we would then ask for your approval and acceptance of our treatment.
We after fully understanding the implication of the contents of this consent form hereby agree to accept the necessary investigations and treatment. (Emphasis supplied).
26. It is true that the consent form did disclose to the Complainant and his wife that neither at the Appellant Institute nor at Merryland Nursing Home, sophisticated antenatal monitoring facilities were available and that for the new born, particularly preterm, Grade I care, was lacking in Merryland Nursing Home. We wonder whether in the first place the Complainant and his wife, a high risk patient, could appreciate the consequences and substantial risks of non-availability of neonatal facilities in the event of preterm delivery. Nevertheless, assuming that on 22.01.1997, when the consent was obtained, Appellants No. 1 and 2 did not anticipate a preterm delivery necessitating a sophisticated antenatal monitoring system and neonatal intensive care unit, we are unable to fathom any reason why on her admission in Merryland Nursing Home on 04.03.1997, in labour with 28 weeks gestation, the Complainant was not advised to shift his wife to a Hospital which had neonatal intensive care unit. In the Written Statement, there is no indication as to whether such an advice was rendered or that patients condition did not permit her removal to another hospital. Under these circumstances, we are of the opinion that the consent procured by the Appellants does not absolve them from their obligation to render due care to the Complainants wife and their preterm baby, and therefore, it cannot be used as a defence for their negligence.
27. In the final analysis, we are in complete agreement with the State Commission that Appellants No. 1 & 2 were negligent in respect of treatment and care of the wife of the Complainant and their preterm baby. The appeal is bereft of any merit and is dismissed accordingly. The prayer for enhancement of Compensation is also rejected. If the compensation and interest as awarded by the State Commission has not been paid so far, the same shall be paid within four weeks of the date of receipt of a copy of this order, failing which, the Appellants will be liable to pay interest @ 12% p.a. on the entire decretal amount, including interest as awarded in the impugned order, from 31.10.2008 i.e. date of the impugned order, till realization. On payment of full amount in satisfaction of this order, the amount deposited by the Appellants with the State Commission in terms of order dated 02.03.2009 shall be refunded to them along with interest accrued, if any. The Complainant shall also be entitled to costs quantified at `50,000/-.
.
(D.K. JAIN, J.) PRESIDENT (VINEETA RAI) MEMBER ar