National Consumer Disputes Redressal
Dr. Rajesh Badyal & Anr. vs Pusp Lata & 3 Ors. on 24 January, 2020
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 3821 OF 2012 (Against the Order dated 31/05/2012 in Appeal No. 557/2007 of the State Commission Punjab) 1. DR. RAJESH BADYAL & ANR. C/o Badyal Advaced Bone & Joint Childern Hosital Bibiwala Road, Near DAV College Bathinda Punjab 2. National Insurence CO Ltd. (Through its Divisional Manager) Delhi Regional Office-I,Level -IV,Tower-II,Jeewan Bharti Building,Connaught Circus New Delhi - 110001 Delhi ...........Petitioner(s) Versus 1. PUSP LATA & 3 ORS. Wd/o Sh Dheeraj Kumar R/o Basant,Now at C/o Shri Prahald Rai Sharma Street Hari Ram Frash No-14 Fazilka Punjab 2. Mansavi, Minor S/o Late Dheeraj Kumar Basant Vihar Gai No-5, Bhatinda Punjab 3. Dr J.C Garh,Anesthetist, C/o Badyal Advancee Bone & Joint Childern Hospital Bibiwala Road, Near D.A.V. College Barhinda Punjab 4. Nova Heart Institute & Research Centre, Nagpal Hospital Enterprisees The Mall, Through its Managing Director Bathinda Punjab ...........Respondent(s)
BEFORE: HON'BLE MR. PREM NARAIN,PRESIDING MEMBER
For the Petitioner : Mr J P Nahar, Advocate For the Respondent : For the Respondent nos.1 & 2 Mr Kashish Garg, Advocate
For Respondent no.3 Ex parte on 12.02.2016
For Respondent no.4. Ex parte on 28.11.2017
Dated : 24 Jan 2020 ORDER
PER MR PREM NARAIN, PRESIDING MEMBER
The present revision petition no. 3821 of 2012 has been filed by Dr Rajesh Badyal and Anr.,against the order dated 21.05.2012 passed by the Punjab State Consumer Disputes Redressal Commission, Chandigarh ('the State Commission') in Appeal no. 557 of 2007.
2. The brief facts of the case are that the husband of respondent no.1 fell in his house and injured his right elbow. He consulted Dr Rajesh Badyal, of Badyal Advanced Bone and Joint Children Hospital, Bibiwala Road at Bhatinda and the operation for the elbow was planned. Operation was done by the petitioner Dr Rajesh Badyal under general anesthesia. It is alleged by the complainant that within an hour of the operation the patient started suffering from major heart ailments and some time was lost when the doctor in the hospital on duty at night could not provide medical help immediately. Later on the anesthetist came but the condition of the patient kept on deteriorating and he was then taken to Nova Heart Institute and from there he was taken to DMC Ludhiana and later on he expired there on 06.08.2004.
3. The complainant then filed a consumer complaint no.198 of 2006 before the District Consumer Disputes Redressal Forum, Bathinda (Punjab) ('the District Forum') alleging deficiency on the part of the petitioner doctor and the anesthetist. The District Forum vide its order dated 07.03.2007 dismissed the complaint.
4. The complainant then preferred an appeal before the State Commission and the State Commission vide its order dated 21.05.2012 accepted the appeal filed by the complainants and the impugned order under appeal dated 07.03.2007 passed by the District Forum was set aside. The said order reads as under:
"Deceased Dheeraj Kumar was employee of Indian Bank, Guru Kanshi Marg, G T Road, Bathinda and was just 37 years old and as per exhibit C 7, his gross salary was Rs.10,450/-. Appellant no.1 is widow of deceased Dheeraj Kumar and appellant no.2 is minor son of deceased Dheeraj Kumar and keeping into all the facts and circumstances, a lumpsum compensation of Rs.7.00 lakh seems to be sufficient compensation, although the death of a young person like Dheeraj Kumar cannot be compensated in any manner.
Accordingly, the complaint filed by the appellants/ complainants is allowed against respondent nos.1 and 3 only and out of the above amount, respondent no.1 Dr Rajesh Badyal is directed to pay Rs.5.00 lakh as lumpsum compensation to the appellants. Respondent no.1 was insured with respondent no.2 - Insurance Company vide policy for Rs.10,00,000/- and for the negligence of respondent no.1, the respondent no.2 - insurance company is liable to pay this amount to the appellants. Both respondent nos.1 and 2 are liable to pay this amount jointly and severally. Appellant no.2 is minor and out of Rs.5,00,000/- a sum of Rs.2,00,000/- be deposited in the name of minor in some nationalized bank till he attains the age of majority.
Respondent no.3 Dr J C Garg is also liable to pay compensation to the tune of Rs.2,00,000/- in lumpsum to the appellants. Appellants are also awarded Rs.10,000/- as litigation expenses, payable by respondent nos.1 and 3 jointly and severally. Out of Rs.2,00,000/- a sum of Rs.1,00,000/- be deposited in the name of appellant no.2 who is minor in some nationalized bank till he attains the age of majority. Complaint against respondent no.4 is dismissed.
Respondent nos. 1, 2 and 3 are directed that compensation amount payable to appellant no.2 (minor) be deposited in the shape of FDR in a nationalized bank and handover the same to appellant o.1 mother of appellant no.2 (minor)."
5. Hence, the present revision petition.
6. Heard the learned counsel for the parties and examined the material on record. The learned counsel for the petitioner has stated that he is an orthopaedic surgeon and his hospital is famous for orthopaedic surgery. The present case was of a very minor operation in the elbow and the same was performed within a very short span of time under general anesthesia. A small dose of general anesthesia was given by the anesthetist and the patient came out of the effect of anesthesia and then he was shifted from the operation theatre. The patient started showing symptoms of heart ailments and then the patient was shifted to higher hospital where he ultimately died. There is no connection with the operation performed by the petitioner and the cause of death or for that matter, with the development of heart ailments. Even if some remote possibility is considered that there may be some trigger for the heart disease on account of anesthesia, the anesthetist can be held responsible for the same and not the orthopaedic surgeon.
7. On the other hand, the learned counsel for the complainant has stated that the State Commission has ordered compensation of Rs.5.00 lakh to be given by the petitioner doctor herein and Rs.2.00 lakh by respondent no.3- Dr J C Garg, Anesthetist and further no revision petition has been preferred by Dr J C Garg Anesthetist as he has already made the payment. The petitioner doctor is already covered under the insurance and the State Commission has already passed an order that the insurance company shall pay the amount which is to be paid by the petitioner doctor. The fact is that the operation was performed by the petitioner doctor in his hospital of which he is the owner. Thus, apart from being an orthopaedic surgeon, he has the responsibility as an owner of the hospital also. If a case becomes unmanageable in his hospital, the hospital is also responsible for the same. Once a particular anesthesia is being given in the hospital, the hospital should be capable of handling emergencies that may arise due to any complication on account of anesthesia. Learned counsel for the respondent in the present case has stated that 250 mg of pentothal was given. The learned counsel also mentioned that the petitioner in the grounds of revision petition has mentioned the following:
"k. Because the State Commission have committed a gross error in not appreciating the fact that according to the Medical Book, Anesthesia, Fifth Edition, Volume 2, Edited by Ronald D Miller, M D Anesthesia may have respiratory complications of airway obstruction;
l. Because the State Commission have committed a gross error in not appreciating the fact that hypoxemia is a common and potentially serious post-operative complication and the petitioner no.1 and respondent no.3 cannot be concluded to be deficient in service."
8. On the basis of the above, the learned counsel for the complainant has stated that the petitioner has admitted that anesthesia can cause respiratory complications of airway obstruction. If this was the case, the petitioner doctor and his hospital should have been more careful about the post-operative care of the patient. In fact, when the complications arose only one doctor was available in the hospital but later on he called the anesthetist, however he could also not manage the patient. Clearly, medical negligence on the part of the petitioner doctor is also proved because, he did not take care of the after effects of anesthesia.
9. I have carefully considered the arguments advanced by the learned counsel for the parties and have examined the material on record. In the present case, clearly, it seems that complication arose due to anesthesia as no other apparent reason is seen for the complications suffered by the patient. No history of any kind of heart ailment has been reported in the matter and therefore, it cannot be stated that the patient was already a patient of heart disease. The State Commission has found both the doctors guilty of medical negligence. Anesthetist Dr J C Garg has not preferred any revision petition and has already paid the amount as ordered by the State Commission. Clearly, the surgery of elbow by an orthopaedic surgeon should not directly lead to any such complications. The only possibility remains that complication might have arisen due to some kind of reaction of the anesthesia. In the present case, it was definitely, the responsibility of the anesthetist to monitor the patient after surgery. However, as the present petitioner, apart from being an orthopedic surgeon is the proprietor of the hospital where the operation was performed, responsibility of the hospital cannot be down played in such cases, because in the matters of emergency, it is the total infrastructure and the staff of the hospital which can play a vital role. In this regard, the petitioner doctor has clearly been deficient in service as he is the owner of the hospital. In this regard, I am supported by the judgment of the Hon'ble Supreme Court in the case of Smt Savita Garg Vs. The Director, National heart Institute, IV (2004) CPJ 40 (SC) wherein the following has been held:-
"Once an allegation is made that the patient was admitted in a particular hospital and evidence is produced to satisfy that he died because of lack of proper care and negligence, then the burden lies on the hospital to justify that there was no negligence on the part of the treating doctor or hospital. Therefore, in any case, the hospital is in a better position to disclose what care was taken or what medicine was administered to the patient. It is the duty of the hospital to satisfy that there was no lack of care or diligence. The hospitals are institutions, people expect better and efficient service, if the hospital fails to discharge their duties through their doctors, being employed on job basis or employed on contract basis, it is the hospital which has to justify and not impleading a particular doctor will not absolve the hospital of its responsibilities."
10. I agree with the total compensation of Rs.7.00 lakh calculated by the State Commission, however, from the above discussion, in my view, the petitioner doctor should be burdened with compensation of Rs.4.00 lakh and the remaining Rs.3.00 lakh should be given by respondent no.3 - Dr J C Garg.
11. Based on the above discussion, the revision petition no. 3821 of 2012 is partly allowed and the order of the State Commission is modified to the extent that the amount of Rs.4.00 lakh will be paid by the petitioner herein and the insurance company, however, respondent no.3 Dr J C Garg, anesthetist will be paying Rs.3.00 lakh instead of Rs.2.00 lakh as ordered by the State Commission. Rest of the order of the State Commission shall remain the same.
...................... PREM NARAIN PRESIDING MEMBER