State Consumer Disputes Redressal Commission
Dr. Arvinder Joshi vs 1. Rajinder Kumar on 16 July, 2013
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH First Appeal No. : 71 of 2013 Date of Institution : 19.02.2013 Date of Decision : 16.07.2013 1. Government Multi Speciality Hospital, Through its Medical Superintendent, Sector 16, Chandigarh, .Appellant/Opposite Party No.1 V e r s u s 1. Rajinder Kumar son of Late Sh. Baldev Singh, R/o H.No. 812, Vikas Nagar, Mouli Jagran, U.T. Chandigarh. .Respondent no.1/Complainant no.1 2. Sawria Dass s/o Rajinder Kumar, R/o H.No. 812, Vikas Nagar, Mouli Jagran, U.T. Chandigarh. . Respondent no.2/Complainant no.2 3. Dr. Arvinder Joshi, Medical Officer, R/o 539, Sector 11-B, Chandigarh . Respondent no.3/Opposite Party No.2 4. Amarjit Kaur D/o Harbans Singh, R/o 10, Village Saini Majra, Near Mullanpur (Punjab). . Respondent no.4/Opposite Party No.3 5. New India Assurance Company, SCO No. 46-47, Phase-II, Mohali. . Respondent no.5/Opposite Party No.4 Appeal under Section 15 of the Consumer Protection Act, 1986. Argued by: Sh. Vishal Sodhi, Advocate for the appellant. Ms. Hemlata Issar, Advocate for respondents no.1 and 2. Sh. R.D. Sehgal, Advocate for respondent no.3. Sh. Subhash Chander, Advocate Proxy for Sh.Chaman Lal, Advocate for respondent no.4. Sh. Ravi Kumar, Advocate Proxy for Sh. Arvind Chauhan, Advocate for respondent no.5. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. MR. DEV RAJ, MEMBER.
PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT Vide our separate detailed order of the even date, recorded, in connected First Appeal No.59 of 2013, titled as Dr.Arvinder Joshi Vs. Rajinder Kumar and Ors., this appeal has been partly accepted, with no order as to costs, with the modification. A certified copy of that order be placed on this file.
2. Certified copies of the main order, alongwith this order, be sent to the parties, free-of-charge.
3. The files be consigned to Record Room, after completion.
Sd/- Sd/-
(DEV RAJ) MEMBER (JUSTICE SHAM SUNDER (RETD.)) PRESIDENT Rg STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH First Appeal No. :
59 of 2013 Date of Institution :
12.02.2013 Date of Decision :
16.07.2013 Dr. Arvinder Joshi, resident of House No.539, Sector 11-B, Chandigarh, at present residing at Billo Ella Austrailia, through his authorized Special Power of Attorney R.D. Sehgal, resident of House No.539, Sector 11-B, Chandigarh.
. Appellant/Opposite Party No.2 V e r s u s
1. Rajinder Kumar son of Late Sh. Baldev Singh, resident of H.No. 812, Vikas Nagar, Mouli Jagran, U.T., Chandigarh.
.Respondent no.1/Complainant no.1
2. Sawria Dass son of Rajinder Kumar, resident of H.No.812, Vikas Nagar, Mouli Jagran, U.T. Chandigarh.
. Respondent no.2/Complainant no.2
3. Government Multi Speciality Hospital, Sector 16, Chandigarh, through its Medical Superintendent.
.Performa Respondent no.3/Opposite Party No.1
4. Amarjit Kaur d/o Harbans Singh, R/o House No.10, Village Saini Majra, Near Mullanpur (Punjab).
. Performa Respondent no.4/Opposite Party No.3
5. New India Assurance Company, SCO No. 46-47, Phase-II, Mohali.
. Performa Respondent no.5/Opposite Party No.4 Argued by: Sh. R.D. Sehgal, Advocate for the appellant.
Ms. Hemlata Issar, Advocate for respondents no.1 and 2.
Sh.
Vishal Sodhi, Advocate for respondent no.3.
Sh.
Subhash Chander, Advocate Proxy for Sh.Chaman Lal, Advocate for respondent no.4.
Sh. Ravi Kumar, Advocate Proxy for Sh. Arvind Chauhan, Advocate for respondent no.5.
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First Appeal No. :
71 of 2013 Date of Institution :
19.02.2013 Date of Decision :
16.07.2013
1. Government Multi Speciality Hospital, Through its Medical Superintendent, Sector 16, Chandigarh, .Appellant/Opposite Party No.1 V e r s u s
1.
Rajinder Kumar son of Late Sh. Baldev Singh, R/o H.No. 812, Vikas Nagar, Mouli Jagran, U.T. Chandigarh.
.Respondent no.1/Complainant no.1
2. Sawria Dass s/o Rajinder Kumar, R/o H.No. 812, Vikas Nagar, Mouli Jagran, U.T. Chandigarh.
. Respondent no.2/Complainant no.2
3. Dr. Arvinder Joshi, Medical Officer, R/o 539, Sector 11-B, Chandigarh . Respondent no.3/Opposite Party No.2
4. Amarjit Kaur D/o Harbans Singh, R/o 10, Village Saini Majra, Near Mullanpur (Punjab).
. Respondent no.4/Opposite Party No.3
5. New India Assurance Company, SCO No. 46-47, Phase-II, Mohali.
. Respondent no.5/Opposite Party No.4 Appeal under Section 15 of the Consumer Protection Act, 1986.
Argued by: Sh. Vishal Sodhi, Advocate for the appellant.
Ms. Hemlata Issar, Advocate for respondents no.1 and 2.
Sh.
R.D. Sehgal, Advocate for respondent no.3.
Sh.
Subhash Chander, Advocate Proxy for Sh.Chaman Lal, Advocate for respondent no.4.
Sh. Ravi Kumar, Advocate Proxy for Sh. Arvind Chauhan, Advocate for respondent no.5.
BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT.
MR. DEV RAJ, MEMBER.
PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT This order shall dispose of the aforesaid two First Appeal Nos.59 of 2013, titled as Dr.Arvinder Joshi Vs. Rajinder Kumar and Ors. and 71 of 2013, titled as Government Multi Speciality Hospital Vs. Rajinder Kumar and Ors., arising out of the common majority order dated 10.12.2012, rendered by the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (hereinafter to be called as District Forum only), vide which, it accepted the Consumer Complaint bearing No.518 of 2010- Rajinder Kumar and Anr. Vs. Government Multi Speciality Hospital and Ors., and directed Opposite Parties No.1, 2 and 3, jointly and severally, as under:--
Hence the present complaint is allowed against the Opposite Parties No. 1, 2 & 3, jointly and severally. The present complaint is dismissed qua Opposite Party No. 4. The OPs 1, 2 & 3 are directed as under: -
[a] To pay Rs.5 Lacs (Five Lacs) as consolidated amount of compensation.
[b] To pay Rs. 10,000-/ as litigation costs.
This order of ours shall be complied within 45 days of its receipt. There after the OPs shall be liable for an interest at the @18 % per annum on the amount of compensation of Rs.5 Lacs apart from the litigation expenses, till it is paid.
2.
The complaint qua Opposite Party No.4, was dismissed, by the District Forum.
3. One Member of the District Forum, recorded the dissenting order.
4. The facts, in brief, are that Smt. Tarawati (now deceased), aged about 55 years, was taken to the Government Multi Speciality Hospital, Sector 16, Chandigarh (hereinafter to be referred as the Hospital only)/Opposite Party No.1, at around 6:30 PM on 26.05.2010, by the complainants, as she was suffering from stomachache, fever and dehydration. After examination by the Doctor, on duty, Smt. Tarawati (now deceased), was admitted in the Emergency Ward, on the same day i.e 26.05.2010. According to the complainants, on the night intervening 26/27.05.2010, Smt. Tarawati was only given a glucose drip. It was stated that Smt. Tarawati (now deceased) was neither given any medicine nor any injection nor any tablet, from the Hospital supply, nor was the attendant called, to purchase the same, for her treatment. However, the Nurses, who were on duty, told complainant No.1, that the patient- Smt. Tarawati (now deceased), was responding to the treatment. She was shifted to the Female Surgical Ward, (hereinafter to be referred as the FSW), thereafter. It was further stated that the Doctors and Nurses, who were on duty, on the said night, locked the FSW, from outside, to save themselves, from the complaints of the patients. It was further stated that the condition of Smt. Tarawati (now deceased) deteriorated, and she was crying with pain, for the whole night. It was further stated that the attendant was constantly knocking at the door of the FSW, with a request to unlock the same, so that the Doctor and the Nurse could be called for treatment of the patient, but to no avail. It was further stated that, on 27.05.2010, at around 5.45 AM., the patient- Smt. Tarawati (now deceased), was having no sign of life and despite repeated requests, none from the Hospital staff was present in the FSW, to provide her treatment.
5. It was further stated that, when the complainants raised hue and cry, Dr.Arvinder Joshi/Opposite Party No.2, attended the patient-
Smt. Tarawati (now deceased), at 6.00 A.M. on 27.05.2010. After checking, he directed to administer her glucose, after giving chest pump, whereas, Smt. Tarawati, had already expired, for want of proper treatment. It was further stated that after realizing their negligence, the Hospital Authorities did not hand over any documents/ prescription slip/admission slip, to the complainants, just to cover up their lapse. The Hospital Authorities also did not perform autopsy/post mortem on the dead body of Smt. Tarawati, with an intention to hide the real cause of her death. It was further stated that the said incident was widely reported, in the newspapers, and a Magisterial Inquiry was also conducted, by the Sub Divisional Magistrate (South) Ms. Prerna Puri, IAS, as per the directions of the higher authorities.
6. It was further stated that, on the basis of the report of the Sub Divisional Magistrate (South) Ms. Prerna Puri, IAS, Opposite Party No.3 was suspended, while departmental action against Opposite Party No.2, was suggested by the Home Secretary, U.T. Chandigarh. It was further stated that, on account of the untimely death of Smt. Tarawati, the complainants being her legal heirs, suffered irreparable loss. It was further stated that Smt. Tarawati (now deceased), died for want of proper medical care/treatment, which tantamounted to deficiency, in rendering service, by Opposite Parties No.1, 2 and 3. It was further stated that the Opposite Parties were many a time asked to pay compensation, for their acts of omission and commission, but to no avail. When the grievance of the complainants, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, directing the Opposite Parties, to pay compensation, to the tune of Rs.7 lacs, towards the irreparable loss, suffered by them, on account of untimely death of Smt. Tarawati.
7. Opposite Party No.1, in its written version, pleaded that the complainants did not approach the District Forum, with clean hands. It was further pleaded that the complaint was filed, just with a malafide intention, to malign the reputation of Opposite Party No.1. It was stated that the service provided by Opposite Party No.1, did not fall within the meaning of term service, as defined under Section 2(1)(o) of the Act, and, as such, the complaint was not maintainable, as the complainants were neither Consumers nor the dispute was a Consumer Dispute. It was admitted that Smt. Tarawati (now deceased), was brought to Opposite Party No.1 Hospital, where she was given treatment, by the Doctors, on duty. It was further stated that Smt. Tarawati (now deceased), was administered pain killer injections, and her ECG was also conducted, free-of-cost. It was further stated that, although the ECG of Smt. Tarawati (now deceased), was normal, yet considering her state of health, she was recommended admission, by the Emergency Medical Officer. It was further stated that Smt. Tarawati (now deceased), was shifted to the FSW, at about 10.00 PM, on 26.05.2010. It was further stated that the said Ward was located on the 2nd floor of Hospital and the Emergency Ward was on the Ground Floor. It was further stated that the Ward (FSW), in question, where the patient was shifted, was not locked from outside. It was further stated that the patient was provided the treatment, keeping in view her condition. It was further stated that when Smt. Tarawati (now deceased) was brought to the Hospital, she had been suffering from stomachache and fever for the last 3 to 4 days, and had been dehydrated, because of continuous vomiting. It was further stated that she was given due care, by the Doctors and the staff, on duty, and treatment as decided by them, at the relevant time. It was further stated that the treatment, which was decided by the Doctors and the staff, on duty, was given to Smt. Tarawati (now deceased), as per the treatment chart, without any cost. It was denied that Smt. Tarawati (now deceased), was crying, in pain, for the whole night of 26/27.05.2010. It was further stated that there were 26 other patients, in the FSW, who were also being looked after by the Doctor/staff on duty. It was further stated that the FSWs are latched from inside, for safety reasons, at night. However, the security personnel/ward attendants are available there, for 24 hours. It was further stated that besides this, Nursing Sisters also remained available, at a hearing distance. It was further stated that Smt. Tarawati (now deceased), was treated by Dr. Arvinder Joshi/Opposite Party No.2, on receipt of call from the Ward attendant, and best efforts were made to save her, but unfortunately she could not survive. It was further stated that, no autopsy/post mortem was conducted, on the dead body of the deceased, on the basis of the request of complainant no.1. It was further stated that there was no deficiency, in rendering service, on the part of Opposite Party No.1. The remaining averments, were denied, being wrong.
8. Opposite Party No.2- the attending Doctor, in his written version, stated that after the admission of the patient- Smt. Tarawati (now deceased), she was advised various types of investigations. It was further stated that, as nothing was detected, Smt. Tarawati (now deceased), was admitted in the hospital, as a precautionary measure, on the night of 26.05.2010, for regular check-up/diagnosis, on the next morning. It was further stated that, besides this, Smt. Tarawati (now deceased), was prescribed (a) I/V Fluids (Glucose) for energy loss, due to vomiting (b) Injections Ciplox and Injection Metrogyl, as Antibiotics (c) Injection Buscopan Pain Killer and (d) Injection Aciloc for Antacid. It was further stated that all these injections/fluids/medicines were provided to Smt. Tarawati (now deceased), by the Hospital/Opposite Party No.1, free-of-cost. It was further stated that Opposite Party No.2, was on duty, in the Emergency Ward of the Hospital, and had never performed any type of surgery, on the deceased, either in the Emergency Ward or in the FSW, where she was admitted. It was further stated that Opposite Party No.2, instructed the Nurse(s), on duty, to give proper treatment/medicines, to Smt. Tarawati (now deceased), as prescribed by him. It was denied that the FSW was locked, from outside. It was also denied that the patient- Smt. Tarawati, had died for want of proper medical care. It was further stated that the Doctors and Staff of the Hospital treated Smt. Tarawati, with utmost care and skill, but, unfortunately, she died her natural death. It was further stated that postmortem, on the dead body of the deceased- Smt. Tarawati, was not conducted, because her husband/complainant no.1, had given, his consent, in writing, for not conducting the same. It was further stated that, even in the Inquiry Report of the Sub Divisional Magistrate (South) Ms. Prerna Puri, IAS, Opposite Party No.2, was not held liable, for medical negligence. It was further stated that the treatment was provided to Smt. Tarawati, free-of-cost and medicines were supplied to her, from the stock of the Hospital. Only nominal charges were charged, for investigations and diagnosis. It was further stated that there was no medical negligence, on the part of Opposite Party No.2. The remaining averments, were denied, being wrong.
9. Opposite Party No.4, in its written version, pleaded that the complaint was not maintainable, against it, until and unless, an opinion had been sought, regarding the medical negligence of Opposite Party No.2, after constituting a Medical Board, as per the latest law, laid down, by the Apex Court. It was stated that the Doctor concerned i.e. Opposite Party No.2, who was insured by it, was not guilty of medical negligence, resulting into the death of the deceased-Smt. Tarawati. It was further stated that Opposite Party No.2, the treating Doctor, was completely exonerated, in both the inquiries, conducted by Opposite Party No.1, as well as, by the Sub Divisional Magistrate (South) Ms. Prerna Puri, IAS, on the directions of the Home Secretary, U.T., Chandigarh. It was further stated that since no medical negligence was attributed to Opposite Party No.2, i.e. the insured Doctor, Opposite Party No.4-Insurance Company was not liable. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Party No.4, nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong.
10. Opposite Party No.3 i.e. the Nurse on duty, Ms. Amarjit Kaur, was duly served, but neither she, nor any authorized representative, put in appearance, on her behalf, as a result whereof, she was proceeded against exparte, by the District Forum.
11. The complainants and Opposite Parties No.1,2 and 4, led evidence, in support of their case.
12. After hearing the Counsel for the complainants, Opposite Parties No.1,2 and 4 and, on going through the evidence, and record of the case, the District Forum, accepted the complaint, in the manner, referred to, in the opening para of the instant order.
13. Feeling aggrieved, First Appeal Nos.59 of 2013, titled as Dr.Arvinder Joshi Vs. Rajinder Kumar and Ors. and 71 of 2013, titled as Government Multi Speciality Hospital Vs. Rajinder Kumar and Ors., were filed by the appellant/Opposite Party No.2, and Opposite Party No.1, respectively, for setting aside the majority order dated 10.12.2012.
14. We have heard the Counsel for the parties, in both the appeals, and have gone through the evidence, and record of the cases, carefully.
15. The first question, that falls for consideration, is, as to whether, the complainants, fell within the definition of Consumers or not. According to the complainants, they hired the services of Opposite Parties No.1, 2 and 3, for consideration. To fortify their stand, they appended Annexure A-6, a copy of the final adjustment bill dated 27.05.2010, issued by Opposite Party No.1, at page 173 of the District Forum file. According to this document, a sum of Rs.25/- was charged from the complainants, as IPD Charges/Daily Charges (General Ward), for the admission/treatment of Smt. Tarawati (now deceased). Not only this, this fact is also reflected in Annexure A-7, at page 100/363/63 of the District Forum file. It is further evident, from this document, that a sum of Rs.300/-, on 26.05.2010, was charged as advance amount, from the complainants. As per both these documents, it was, thus, proved that a sum of Rs.300/-, in advance, was charged from the complainants, and, ultimately, after the final adjustment, a sum of Rs.275/-, was refunded to them. It is also evident, from page 365/101/64, of the District Forum file, that a sum of Rs.40/- was charged from the complainants, for chest X-ray of Smt. Tarawati. Another amount of Rs.40/- was charged for abdomen standing X-ray of Smt. Tarawati, from the complainants. Not only this, when the injections were prescribed to Smt.Tarawati, by the Doctor, the same were also purchased by the complainants. From the aforesaid documents, it was, thus, proved that the service rendered by the Opposite Parties, to Smt. Tarawati (now deceased), was not free-of-charge, but on payment of charges, refereed to above. In Indian Medical Association Vs. V.P. Shantha & Others, (1995) Supreme Court Cases 651, it was held that the medical practitioners, Government Hospitals/ Nursing Homes and private Hospitals/Nursing Homes (hereinafter called "Doctors and Hospitals") broadly fall in three categories:- (i) where services are rendered free of charge to everybody availing the said services. (ii) where charges are required to be paid by everybody availing the services and (iii) where charges are required to be paid by persons availing services but certain categories of persons who cannot afford to pay are rendered service free of charge. There is no difficulty in respect of first two categories. Doctors and Hospitals who render service without any charge, whatsoever, to every person, availing the service, would not fall within the ambit of "service" under Section 2(1) (o) of the Act. The payment of a token amount for registration purposes only would not alter the position, in respect of such doctors and hospitals. So far as the second category is concerned, since the service is rendered on payment basis to all the persons they would clearly fall within the ambit of Section 2(1) (o) of the Act. The third category of Doctors and Hospitals do provide free service to some of the patients belonging to the poor class, but the bulk of the service is rendered to the patients on payment basis. The expenses incurred for providing free service, are met out of the income, from the service rendered to the paying patients. The service rendered by such Doctors and Hospitals, undoubtedly, fall within the ambit of Section 2(1) (o) of the Act. The principle of law, laid down, in the aforesaid case, is fully applicable to the facts of the instant case. Since, the service was not rendered to Smt. Tarawati (now deceased), or the complainants, free-of-charge, it could not be said that they (complainants) did not fall within the definition of Consumers. In Sailesh Munjal and Another Vs. All India Institute of Medical Sciences and Others, III (2004) CPJ 93, the National Consumer Disputes Redressal Commission, New Delhi, held as under:-
10) Service rendered at a government hospital/health centre/dispensary where services are rendered on payment of charges and also rendered free of charge to other persons availing of such services would fall within the ambit of the expression 'service' as defined in Section 2(1)(o) of the Act
16. Since the complainants, fell within the definition of Consumers, as they hired the services of Opposite Parties No.1 to 3, for consideration, and the question for determination involved, related to their alleged medical negligence, the Consumer Complaint was maintainable. The District Forum was also right, in holding so.
17. The next question, that falls for consideration, is, as to whether, there was any medical negligence, on the part of Opposite Party No.2-Dr. Arvinder Joshi, who attended the patient, on the night of her admission. The Honble Supreme Court in para-94 of its judgment titled as Kusum Sharma and Ors. Vs. Batra Hospital and Medical Research Centre and Ors. I(2010) CPJ 29 (SC), observed as under:-
94. On scrutiny of the leading cases of medical negligence both in our Country and other Countries specially United Kingdom, some basic principles emerge in dealing with the cases of medical negligence. While deciding whether the medical professional is guilty of medical negligence, the following well known principles must be kept in view:
I. Negligence is the breach of a duty exercised 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.
Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.
III.
The medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest 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.
IV.
A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
V. In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.
VI.
The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence.
VII.
Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.
VIII.
It would not be conducive to the efficiency of the medical profession if no Doctor could administer medicine without a halter round his neck.
IX.
It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessary harassed or humiliated so that they can perform their professional duties without fear and apprehension.
X. The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals/hospitals particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners.
XI.
The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals.
Their Lordships observed that the aforesaid principles, must be kept in view while deciding the cases of medical negligence. It is evident from the principle of law, laid down, in the aforesaid case, that, as long as, the Doctor performs his duties and exercises an ordinary degree of professional skill and competence, he/she cannot be held guilty of medical negligence. It is imperative that the Doctor must be able to perform his/her professional duties, with free mind.
18. In the case of Jacob Mathew (Dr.) Vs. State of Punjab & Anr.-III (2005) CPJ 9 (SC), it was held by the Apex Court, that a physician would not assure the patient of full recovery in every case. A surgeon cannot and does not guarantee that the result of the surgery would invariably be beneficial much less to the extent of 100% for the person operated upon. The only assurance which such a professional can give or can be understood to have given by implication is that he is possessed of the reasonable skill, in that branch of profession, which he is practicing and while undertaking the performance of the task entrusted to him, he would be exercising his skill, with reasonable competence.
19. In Laxman Balakrishan Joshi Vs. Trimbak Bapu Godbole and Anr.-AIR 1969 SC 128, the Apex Court laid down the criteria for determination of the professional duty of a medical man. The Honble Supreme Court held that a person who holds himself out ready to give medical advice, and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person, when consulted by a patient, owes himself certain duties viz. a duty to care, in deciding whether, to undertake the case, in deciding what treatment to give or duty of care, in administration of that treatment.
20. It is evident, from the principle of law, laid down, in the aforesaid cases, that as long as, the doctor performs his duties and exercises an ordinary degree of professional skill and competence, he cannot be held guilty of medical negligence. It is imperative that the doctor must be able to perform his professional duties, with free mind. Now, let us see, as to whether, Dr. Arvinder Joshi, who was the treating Doctor, performed his duty, by exercising an ordinary degree of professional skill and competence, in treating Smt. Tarawati (now deceased). It is evident, from the record, that Smt. Tarawati (now deceased), aged about 55 years, was brought to the emergency ward of GMHS, at about 7.00 p.m., on 26.05.2010. At that time, she had been complaining of stomachache and fever for the last three to four days, as also consistent dehydration. Registration Card no.20100529460 on 26.05.2010, by the emergency OPD staff was prepared. It is further evident, from the record, that Smt. Tarawati (now deceased), was immediately attended to and medically examined by Dr. Deepak Sharma, at that time, the Emergency Medical Officer, on duty, in the aforesaid Hospital. It is evident, from Page 427/30, of the District Forum file, that the Doctor found that it was a case of pain in abdomen, as also vomiting. She was advised injection Voveran IM 1 Amp Stat, injection Aciloc IM 1 Amp Stat, and injection Perinorm IM 1 Amp Stat. Not only this, besides prescription of the aforesaid injections/medicines, the patient Smt. Tarawati (now deceased), was also advised to undergo the medical tests, as is evident from page 399 of the District Forum file. The medical tests reports were received, according to which, blood pressure of Smt. Tarawati (now deceased), was 180/110, her pulse rate was 110, HB (Hemoglobin) 11.7 grams(normal), as is evident, from report at page 429 of the District Forum file, her TLC (Total Leucocytes Count), which test is conducted, as to whether, there is any infection in the body, or not, was 10300 (normal range), as is evident, from page 429 of the District Forum file. Her DLC (Differential Leucocytes Count), which is a test to find out infection in the body, was found to be within the normal range, as is evident, from page 429 of the District Forum file. Her Platelets Count, which is a test to find out dengue etc., like bleeding disorders, in the body, was found to be normal, which fact is also evident, from page 429 of the District Forum file. Her RFT (Renal Function Test), which is conducted, to detect, as to whether, any infection affected the kidneys, was within the normal range, which fact is evident, from page 431 of the District Forum file. Her RBS (Random Blood Sugar), was found to be 133 mg/dl i.e. the normal range, as is evident, from page 431 of the District Forum file. Her SE (Serum Electrolyte), which test is conducted to monitor the water electrolyte balance in the body was Sodium 142 meq/l and Potassium 4.2 meq/l (normal range), as is evident, from page 431 of the District Forum file. ECG (Electrocardiogram), which is conducted to monitor the status of the heart, was found to be normal, as is evident, from page 437 of the District Forum file. Her X-ray chest, was conducted to find out the status of the lungs, and X-ray abdomen was conducted to find out the status of gastrointestinal track. According to Dr. Deepak Sharma, Emergency Medical Officer, who was on duty, at the relevant time, the patient had been a known case of (K/c/o-HTN) Hypertension, for the last 10 to 15 years and taking treatment, for the same, but no record was available. Dr. Deepak Sharma, also while recording the history of the patient, at page 401 of the District Forum file, mentioned that she had been a case of vomiting, for the last 3 days, the frequency whereof was 10-15 times, in a day. She was also found to have been suffering from fever, for the last 3 days, and there had been no history of pain in abdomen, no history of cough, no history of burning micturition (means no burning while urination). Dr. Deepak Sharma, also recorded under the column of past history, that there were previous episodes of vomiting and fever, on and off. He also recorded that there was no history of tuberculosis, No BA (Bronchial Asthma), and no history of DM (Diabetes Mellitus). The aforesaid diagnoses were made by Dr. Deepak Sharma, Emergency Medical Officer, on duty, till 8.00 P.M.
21. At 8.00 P.M., the duty of Dr. Deepak Sharma, Emergency Medical Officer, finished, and he left the Hospital. Thereafter, Dr. Arvinder Joshi, came as Emergency Medical Officer, in the Emergency Ward of the Hospital. On the basis of the aforesaid observations and diagnosis, made by Dr. Deepak Sharma, the then Emergency Medical Officer, and on further examination of the condition of the patient-Smt.Tarawati (now deceased), Dr. Arvinder Joshi, Emergency Medical Officer, made the following observations:-
H/o (History of) Vomiting 10-15 times, in a day.
No history of diarrhea (N/o H/o diarrhea).
History of fever from last 3 days.
At present, no complaint of pain in Abdomen, abdomen soft, no tenderness/guarding or rigidity.
He then came to the conclusion, that the patient was suffering from dehydration, with APD (Acid Peptic Disorder). Dr. Arvinder Joshi, lost no time, in prescribing the following injections/medicines, as is evident, from page 403 of the District Forum file:-
1.
I/V fluids 2 Bottles of RL (Rinder Lactate) 2 Bottles % Dex (dextrose) 2 Bottles (Normal Saline)
2. Injection Ciplox 100 ml x BD
3. Injection Metrogyl 100 ml x BD
4. Injection Perinorm Stat/SOS
5. Injection Buscopan SOS
22. At about 8.45 P.M., on 26.05.2010, the condition of Smt. Tarawati (now deceased), was found under control, and she was shifted to the FSW, as is evident, from Annexure OP1/1, at page 391 of the District Forum file. The Nurses and other staff present at that time, in the FSW, started giving the prescribed doses of medicines, I/V fluids and injections etc., to the patient. Injection Aciloc, as prescribed in the admission card, at page 427 of the District Forum file, was only to be given once, which had already been given to Smt. Tarawati, in the Emergency Ward, as is evident, from page 399 of the District Forum file. It was to be given again, if required. Injection Perinorm, as prescribed in the admission card, at page 427 of the District Forum file, was to be given SOS, means, as and when required. This injection had already been given to Smt. Tarawati (now deceased), in the Emergency Ward, as is evident, from page 399 of the District Forum file. Injection Voveran, was also given to Smt. Tarawati (now deceased), in the Emergency Ward, as per entry at page 399 of the District Forum file. It was required to be given again, when the patient felt pain, as per entry at page 399 of the District Forum file, made by the Doctor concerned. Injection Ciplox, 100 ml x BD, was prescribed. It means that, it was to be given after every 12 hours. The patient had already been given the dose, as prescribed. The next dose was to be given after 12 hours, i.e. on 27.05.2010 at 9.00 a.m.. Injection Metrogyl 100 ml x BD, i.e. twice a day, which means it was to be given after every 12 hours. The same was given at 8.55 P.M., on 26.05.2010. The next dose was required to be given after 12 hours, i.e. the next morning at 9.00 A.M. It is evident, from the Intake Out-put Chart, that the blood pressure of the patient against the normal limits i.e. 120/80 was fluctuating between 180/110 to 150/110. Against the normal pulse rate of 60-90, the same (pulse rate) was fluctuating between 70 to 110, and against the normal respiratory rate limits of 16-24, the same(normal respiratory rate limits) was fluctuating between 20 to 24. Similarly, the blood pressure, pulse rate and respiratory rate limits of the patient were recorded at 8.45 P.M., 8.55 P.M., 9.00 P.M., 12.00 A.M., 3.00 A.M., and 4.00 A.M., and she was found improving. It is evident, from the record, at pages 403 and 443 of the District Forum file, that at about 6.00 A.M., the patient was found having sudden episode of breathlessness or gasping. The staff/nurses, immediately called Dr. Arvinder Joshi, Emergency Medical Officer, who came to the FSW and found that the patient was gasping and her pulse was un-recordable and similarly blood pressure was also un-recordable. Injection Adrenalin I/C (Intra Cardiac) Stat, was given to the patient, to revive her heart. Injection Efcorlin Stat 200 mg was given to control the shock to raise the blood pressure. CPR (Cardio Pulmonary resuscitation-method), was used to bring the patient out of Cardiac arrest. Smt. Tarawati, however, unfortunately, died at about 6.30 A.M., on 27.05.2010. Dr. Arvinder Joshi, prepared the death report of the patient -Smt. Tarawati (now deceased), and recorded that she died due to cardiac arrest.
23. From the diagnosis made by Dr. Arvinder Joshi, and the treatment prescribed by him, referred to above, it is evident, that he performed his duties and exercised an ordinary degree of professional skill and competence, in treating Smt. Tarawati. There was no lapse, on the part of Dr. Arvinder Joshi, in diagnosing the disease, from which the patient was suffering and in prescribing the medicines/injections, which were required to be given, to the patient- Smt. Tarawati (now deceased), at different intervals, so as to make her condition stable. He being a Medical Emergency Officer, was required to attend other 26 patients, admitted in the FSW. Under these circumstances, it could not be said that Dr. Arvinder Joshi, was, in any way, medically negligent. Since, whatever, as a competent medical professional, by exercising due care and skill, Dr. Arvinder Joshi could do, he did, but unfortunately, the patient-Smt. Tarawati died, no medical negligence could be attributed to him. It is, therefore, held that Dr. Arvinder Joshi, was not at all medically negligent, in diagnosing the disease of Smt. Tarawati (now deceased), prescribing the medicines, which were to be given to her, from time to time and treating her. The District Forum, vide its majority order, was, thus, wrong in holding that Dr. Arvinder Joshi, was guilty of medical negligence. The findings of the District Forum, vide its majority order, in this regard, being perverse, are reversed.
24. No doubt, the postmortem on the dead body of Smt. Tarawati, was not conducted by the Hospital. It is to be seen, as to whether, it was essential on the part of Dr. Arvinder Joshi, or any other Doctor of the Hospital, to conduct postmortem examination, on the dead body of Smt. Tarawati, even if, her claimants/attendants had given the consent to the contrary. In our considered opinion, the Doctor(s) of the Hospital could not be forced to conduct the postmortem examination on the dead body of the patient, if her attendants/ claimants gave consent to the contrary. Mr. Rajinder Kumar, husband of Smt. Tarawati (now deceased), in his statement, at page 185, of the District Forum file, made before the Sub-Divisional Magistrate, U.T., Chandigarh, who was the Inquiry Officer, stated that he gave an application, that he did not want to get the postmortem, on the dead body of the deceased, conducted. Since, the husband of Smt. Tarawati (now deceased), did not want the postmortem to be conducted, on the dead body of his late wife, there was no obligation on the part of Dr. Arvinder Joshi, to conduct the same. Therefore, Dr. Arvinder Joshi and the Hospital, could not be said to be negligent, in any manner, in this regard.
25. No doubt, against the I/V fluids, which were prescribed by Dr. Arvinder Joshi, the duration of time, over which, the same were to be given was not written. However, as per the normal practice, when such I/V fluids were prescribed by Dr. Arvinder Joshi, it was the duty of the Nurse-Ms. Amarjit Kaur/Opposite Party No.3, who was on duty, in the Female Surgical Ward, if she had any doubt, with regard to the duration over, which I/V fluids were to be given, to make necessary enquires, from him (Dr. Arvinder Joshi), who was on duty. However, she did not do so. On the other hand, Ms.Amarjit Kaur/Opposite Party No.3, who was Nurse, on duty, at the relevant time, stated in her statement, which is at page 201 of the District Forum file, before the Inquiry Officer i.e. Sub Divisional Magistrate, U.T., Chandigarh, that she gave two bottles of RL and one bottle of 5% Dextrose, during the night, to Smt. Tarawati (now deceased). She, however, stated that these bottles were available, in the hospital stock, and were given to the patient, therefrom. Her statement, in this regard is belied by the treatment chart of the patient, maintained by the Staff Nurse. In the said treatment chart, there is no mention of I/V fluids, which were given to the patient. Even, it is evident, from the Inquiry report of the Inquiry Officer, that in the I/V fluids expense register, entry of two bottles of RL claimed to have been administered by Amarjit Kaur, Nurse on duty, was missing. Since, the I/V fluids were required to be given to Smt. Tarawati (now deceased), as prescribed by Dr. Arvinder Joshi, by Amarjit Kaur, Nurse, on duty, she was required to give the same, to the patient, accordingly. Ms. Amarjit Kaur, by not giving the I/V fluids to the patient, as prescribed by Dr. Arvinder Joshi, did not perform her duties, with due care and skill. Under these circumstances, Ms. Amarjit Kaur/ Opposite Party No.3, could be said to be medically negligent, and, as such, deficient, in rendering service.
26. There are cuttings, in the time, which apparently were made by the Nurse, in the Intake Out-Put Chart, at page 347 of the District Forum file. However, the careful perusal of the copy of Intake Out-Put Chart, at page 347 of the District Forum file, goes to show that originally the time 12.00 pm, 2.00 pm. and 6.00 p.m., was written, but later on, it was converted into 12.00 a.m., 2.00 a.m. and 6.00 a.m. It appears that, such cuttings were apparently the result of a routine habit of writing. It is usually seen that, as and when, there is on-set of the next day, after the midnight, the writer charged with the duty of making an entry, in routine, writes 12.00 p.m., 2.00 p.m. and 6.00 p.m., instead of writing 12.00 a.m., 2.00 a.m., and 6.00 a.m., after 11.59 p.m., of the previous night, when the next day starts. Under these circumstances, no malafide intention could be attributed to Ms. Amarjit Kaur, Nurse, with regard to the cuttings, aforesaid. It was only a routine mistake, while writing the time, after the start of the next day, after midnight. Such a routine mistake having been committed by any Official, could not be said to be deficiency, in rendering service. The District Forum, vide its majority order, was wrong, in holding that the cuttings, aforesaid, were on account of malafide intention, on the part of the staff/nurse of the Hospital. The findings of the District Forum, vide its majority order, that on account of this reason, there was deficiency, in rendering service, therefore, being perverse, are reversed.
27. Now coming to the role of the Hospital, where Smt. Tarawati (now deceased), was admitted, it may be stated here, that Smt. Sharmila, daughter-in-law of Smt. Tarawati (now deceased), in her statement at page 189 of the District Forum file made before the Inquiry Officer i.e. Sub Divisional Magistrate, U.T., Chandigarh, deposed that at around 6.00 a.m., on 27.05.2010, when her mother-in-law was gasping, there was no Doctor/Nurse available, in the FSW. However, the record speaks that Dr. Arvinder Joshi, Emergency Medical Officer was called and he attended the patient and gave her requisite treatment, to save her, from 6.00 A.M., until her death at 6.30 A.M. Sh. Sawarian Das, son of Smt. Tarawati (now deceased), in his statement at page 193 of the District Forum file, made before the Inquiry Officer i.e. Sub Divisional Magistrate, U.T., Chandigarh, in clear-cut terms, stated that the door of FSW was locked and there was no guard, on duty, at night. Ms. Kanchan, Security Guard of the Hospital, also in her statement, at page 207 of the District Forum file, made before the Inquiry Officer i.e. Sub Divisional Magistrate, U.T., Chandigarh, in clear-cut terms, stated that she locked the door, at 11.30 p.m., at night, to keep the mates from entering the ward. It was the duty of the Hospital, to ensure that the main door of the FSW was not locked, from outside, as in case of emergency, the attendants of the patient were required to contact the Doctor. In the event of locking the door of the FSW, it was not at all possible, for the attendants to call the Doctor. The action of locking the ward door, from outside, during the night, was not at all logical, and it amounted to illegal/compulsive confinement of the patients and their attendants. Had the Hospital/ Opposite Party No.1, taken proper precautions and issued the requisite instructions that the FSW should not be locked, at night, from outside, but, on the other hand, the Security Guard must remain on duty for 24 hours, so that, no difficulty is experienced, by the attendants of the patients, in case there was any emergency, for calling the Doctor(s), to attend to the patient, such a thing would not have happened. It appears that no requisite instructions, in this regard, were issued by the Authorities of the Hospital/Opposite Party No.1, as a result whereof, such locking of the door of the FSW from outside happened. This was a clear-cut deficiency, on the part of the Hospital/Opposite Party No.1, in rendering service, to the patient- Smt. Tarawati (now deceased).
28. Not only this, Ms. Manjit Kaur, Sister Incharge of FSW, in her statement at page 225 of the District Forum file, made before the Inquiry Officer i.e. Sub Divisional Magistrate, U.T., Chandigarh, stated that the intercom of the FSW had not been functional since 25.05.2010, and she had lodged a complaint, in that regard. She further stated, before the Inquiry Officer, that the intercom became functional on 29.05.2010. It means that the Hospital Authorities did not take the requisite steps, to get the faulty intercom system rectified, immediately, so as to avoid any sort of inconvenience to the staff, as also the attendants of the patients. In the face of the locking of the door, from outside, and non-functional intercom, it was not at all possible, for the attendants of the patients, to contact the Doctors, in case of emergency. The intercom could be said to be an important means of communication, between the Nurse, staff and the Doctors. Had the Hospital Administration taken urgent measures, to ensure that the communication lines were not disrupted, and, in case of eruption of any fault therein, the same was rectified, without any avoidable loss of time, the matter would have been different. There is nothing, on the record, that such steps had been taken by the Hospital Authorities, from 25.05.2010 to 27.05.2010 when the death of Smt. Tarawati (now deceased), took place, for the purpose of rectification of the defect, in the intercom, so as to make it functional. This also amounted to deficiency, in rendering service, on the part of the Hospital/Opposite Party No.1.
29. Since, the medical negligence of Dr. Arvinder Joshi, in diagnosing the disease, prescribing medicines/injections etc. etc., and treating Smt. Tarawati (now deceased), was not proved from the evidence, on record, it could very well be said that he treated her, with utmost skill and care. Unfortunately, Smt. Tarawati, died. Dr. Arvinder Joshi is, thus, exonerated of his liability. Only Ms. Amarjit Kaur, Nurse on duty, and the Hospital Authorities are required to be fastened with the liability of compensation, for deficiency, in rendering service, as indicated in the foregoing paragraphs. In our considered opinion, for such deficiency, in rendering service, of the Nurse and the Hospital Authorities, compensation, in the sum of Rs.5 lacs, awarded by the District Forum, vide its majority order, could be said to be highly excessive. Compensation, in the sum of Rs.2 lacs, against the Hospital and the Nurse (i.e. Rs.1,50,000/-, to be paid by the Hospital and Rs.50,000/-, by the Nurse), if awarded, would meet the ends of justice.
30. No other point, was urged, by the Counsel for the parties, in both the appeals.
31. For the reasons recorded above, First Appeal No.59 of 2013, titled as Dr.Arvinder Joshi Vs. Rajinder Kumar and Ors., is accepted, with no order as to costs. The majority impugned order of the District Forum, qua Dr. Arvinder Joshi, is set aside.
32. First Appeal No.71 of 2013, titled as Government Multi Speciality Hospital Vs. Rajinder Kumar and Ors., is partly accepted, with no order as to costs. The majority order of the District Forum, is modified, in the following manner:-
(i) The appellant/Opposite Party No.1, is directed to pay a sum of Rs.1,50,000/-, as compensation to respondents no.1 and 2/complainants, instead of Rs.5 lacs, as awarded by the District Forum.
(ii) Respondent no.4/Opposite Party No.3, is directed to pay a sum of Rs.50,000/-, as compensation, to respondents no.1 and 2/complainants, instead of Rs.5 lacs, as awarded by the District Forum.
(iii) The cost of litigation, awarded by the District Forum, shall remain intact.
(iv) In the first instance, the entire amount of compensation, to the tune of Rs.2 lacs, shall be paid by the appellant/Opposite Party No.1, to respondents no.1 and 2/complainants, within a period of 45 days, from the date of receipt of a certified copy of this order, failing which, this amount shall carry interest @9% P.A., from the date of default, till realization, besides payment of costs, awarded by the District Forum.
33. However, it is made clear that the appellant/Opposite Party No.1, in First Appeal No.71 of 2013, shall be at liberty, to recover a sum of Rs.50,000/-, from Mrs. Amarjit Kaur, Nurse/respondent no.4/Opposite Party No.3, in accordance with law.
34. A copy of the main order be placed in the file of First Appeal No.71 of 2013, titled as Government Multi Speciality Hospital Vs. Rajinder Kumar and Ors.
35. Certified copies of this order, be sent to the parties, free of charge.
36. The files be consigned to Record Room, after completion Pronounced.
July 16, 2013_ Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
(DEV RAJ) MEMBER Rg