National Consumer Disputes Redressal
Karamveer Singh & Ors./ Garg Nursing ... vs Garg Nursing Home & Ors./Karamveer ... on 16 August, 2012
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 675 OF 2006 (From the order dated 21.09.2006 in Complaint No.88/2000 of the State Commission, Madhya Pradesh) Karamveer Singh & Ors. Appellants Versus Garg Nursing Home & Ors. Respondents FIRST APPEAL NO. 75 OF 2007 (From the order dated 21.09.2006 in Complaint No.88/2000 of the State Commission, Madhya Pradesh) Garg Nursing Home & Ors. Appellants Versus Karamveer Singh & Ors. Respondents BEFORE: HONBLE MR. JUSTICE ASHOK BHAN, PRESIDENT HONBLE MRS. VINEETA RAI, MEMBER For the Appellants : NEMO. (F.A.No.675/2007) For the Respondents : Mr.G.Umapathy, Advocate for R-1 & 2. For the Appellants : Mr.G.Umapathy, Advocate (F.A.No.75/2007) For the Respondents : NEMO for R-1 to R-3. Mr.G.Umapathy, Advocate for R-4 & 5. Mr.R.C.Mishra, Advocate for R-6. Pronounced on 16th August, 2012 ORDER
PER VINEETA RAI, MEMBER Karamveer Singh & Ors. (hereinafter referred to as the Appellants) who were the original complainants before the State Commission have filed the F.A. No.675/2006 being aggrieved by the amount of compensation awarded by the State Consumer Disputes Redressal Commission, Madhya Pradesh (hereinafter referred to as the State Commission) in Complaint No.88/2000 and have sought enhancement of the same. M/s Garg Nursing Home & two others (hereinafter referred to as the Respondents) have also filed a F.A. No.75/2007 against the same order wherein the State commission had found Respondent/Nursing Home and other Respondents/doctors guilty of medical negligence and deficiency in service. Since the two appeals arose from the same order of the State Commission, it is decided to dispose of these appeals by a common order by taking the facts from F.A.No.675/2007.
The facts of the case are that the Appellant Master Karamveer Singh (hereinafter referred to as the patient), aged 8 months at the time of his surgery had a cleft palate since birth and because of this abnormality he had persistent complaints including of pneumonia.
Appellants No.2 and 3, his parents, had consulted a number of doctors and were told that the problem could be rectified through surgery when the child attains the age of 2 years.
However, since the problem of pneumonia persisted, they consulted a number of other doctors including Dr.T.C. Agarwal (Respondent No.4), plastic surgeon, who advised an operation for the cleft palate once the child was all right and his lungs were clear. The child was accordingly admitted in the Respondent/Nursing Home on 16.04.1998 and the operation was scheduled for the next morning.
According to the parents of the patient, he was taken to the Operation Theatre without any pre-operative tests including the essential pre-anesthesia test. 20 minutes after the start of the surgery, some staff came out of the Operation Theatre in search of an Oxygen cylinder.
Half an hour later, Respondent No.4 also came out and informed the parents that since the child has some respiratory problems, the surgery could not be done. According to the Appellants/parents the patient was brought out at 11 a.m. and was in a coma. No satisfactory explanation was given regarding his condition. Since the patient continued to be in a coma and in a persistent vegetative state, he was discharged on 25.09.1998 and the parents were advised to take the patient to Delhi for further treatment. The patient was examined by a number of doctors at Delhi wherein the parents were informed that the present condition had occurred as child had suffered Hypoxia while in surgery following an overdose of anesthesia. Being aggrieved, Appellants filed a complaint before the State Commission on grounds of medical negligence and deficiency in service against the Respondent/Nursing Home as well as the Respondents/doctors and specifically alleged that the operation was done incorrectly before the recommended age of 2 years for such operations, no Oxygen cylinder was kept in the Operation Theatre for emergency, no expert treatment was provided, no pre-operative or pre-anesthetic tests were conducted and excessive anesthesia was administered resulting in the vegetative condition. Appellants therefore, sought compensation of Rs.19,75,000/- towards the medical expenditure incurred as well as recurring expenditure for maintaining the child, disability of their only child, litigation costs as also cost for mental agony and harassment.
The above contentions were denied by Respondents who contended that Respondent No.4 has been successfully conducting such surgeries for the last 8 years and the recommended age for such surgery is upto 2 years and not after 2 years. It was contended that all the required pre-operative tests including the pre-anaesthetist test were advised and got done by Respondent No.4 and Dr.Sanjay Saxena (Respondent No.3), the anesthetist and the surgery was conducted only thereafter. All parameters were again checked in the Operation Theatre itself and found to be normal. Unfortunately, immediately after administration of anesthesia, the patient suffered a severe bronchospasm and became cyanosed.
Immediately, resuscitative measures were started. Injections of Decadron and Deriphylline were given but the condition did not improve and the pulse oximeter reading continued to fall for which he was also given the required pressure ventilation including 100% oxygen and Adrenaline. After some time, the cyanosis started improving and a Neurosurgeon and a Paediatrician were called for further assistance and consultations. A tracheotomy was performed to maintain regular and adequate respiration and a tube inserted for administering nourishment. Respondents denied that there was lack of Oxygen cylinders in the Operation Theatre and stated that there was no deficiency in the infrastructure or equipments in the Respondent/Nursing Home. It was also denied that there was any overdose of anesthesia and Thiopentone sodium was given which is a standard drug.
The State Commission after hearing both parties and on the basis of evidence filed before concluded that the Respondents were negligent on three counts: Firstly, for not conducting the necessary pre-operative and pre-anesthetic tests; Secondly, for performing the operation when there was no emergency since it is a known fact that anesthesia given to patients with recent respiratory tract infections can result in adverse reactions; and Thirdly in not taking due care in administering anesthesia and giving the drug Thiopentone which is particularly risky for patients with respiratory problems from which admittedly the child suffered. State Commission therefore directed the Respondents to jointly and severally pay the Appellants a sum Rs.3 lakhs within a period of one month from the date of the order failing which it shall carry interest @ 9% from the date of order till payment. Rs.5,000/- was imposed as costs.
Hence, the present Appeals. None appeared on behalf of the Appellants/Complainants though service is complete. It was therefore decided to proceed with the case ex parte.
Counsel for Respondent/Nursing Home contended that the State Commission erred in finding the Respondent/Nursing Home and the two doctors who ran it, guilty of medical negligence and deficiency in service along with the Respondents/doctors and directing it also to jointly and severally pay Rs.3 lakhs to the Appellants. The State Commission had reached a clear finding that the Respondent/Nursing Home was fully equipped and there is no merit in the allegations of the Appellants that there was non-availability of Oxygen cylinder etc. Further, the Respondent/Nursing Home had arranged for a Neurosurgeon as also a Paediatrician to immediately examine the patient and all treatment papers were provided to the Appellants by the Respondent/Nursing Home. Therefore, the three charges of negligence can only be attributed to the two doctors, namely; Dr.Sanjay Saxena (Respondent No.3) and Dr.T.C.Agarwal (Respondent No.4) who were the concerned doctors responsible for the treatment of the child and not the Respondent/Nursing Home and its owners per se. It also needs to be appreciated that Respondents No.3 and 4 were only consultant doctors to the Respondent/Nursing Home and therefore, the Respondent/Nursing Home should not be burdened for any lapse which may have occurred on their part in the treatment of the patient. It was, therefore, prayed that the Respondent/Nursing Home being not guilty of either medical negligence or deficiency in service may not be asked jointly and severally to pay the compensation of Rs.3 lakhs along with the other Respondents/doctors.
We have heard learned Counsel for Respondents and have carefully gone through the evidence on record. So far as Appeal No.675/2006 is concerned, we agree with the detailed and well-reasoned order of the State Commission which has given cogent reasons supported by medical evidence and literature that all Respondents were guilty of medical negligence. Respondent No.3 and 4 who were the treating doctors, we note have not filed an appeal against the order of the State Commission, thereby accepting the verdict of medical negligence. Further, it is in evidence and not contradicted that because of the medical negligence of the Respondents/doctors, the patient continues to remain in a vegetative state and requires lifelong special medical care and attention. It is also a fact that the patient was taken to Delhi on the advice of Respondents/doctors for further medical treatment as also to some other medical institutions.
Undoubtedly, this also have resulted in heavy expenditure on the part of the Appellants for treatment and stay. Keeping in view these facts, we are of the view that there is a case to enhance the compensation from Rs.3 lakhs to Rs.5 lakhs.
In First Appeal No.75/2007, Respondent/Nursing Home and the two doctors running it, have contended that they should not be held guilty of medical negligence, since the State Commission had reached a clear finding that there was no deficiency in service in the Nursing Home including the Operation Theatre that the treatment papers were promptly given to the Appellants and expert medical consultation was also arranged. While we agree with this part of the finding of the State Commission, we are of the view that the Respondent/Nursing Home cannot be absolved of its responsibility of medical negligence on its part since Respondents/doctors who treated the patient and who were found guilty of medical negligence were very much a part of the Respondent/Nursing Home since admittedly they were on its payroll. It is not relevant whether they were there as consultants or as full time staff. We therefore, agree with the State Commission that they have to share the responsibility along with the other Respondents for medical negligence in the treatment of the patient and uphold the same.
To sum-up, we direct Respondent/Nursing Home and Respondents/Doctors to jointly and severally pay the Appellants Rs.7 lakhs within a period of one month from the date of this order failing which it shall carry interest @ 9% from the date of order till payment along with litigation cost of Rs.5,000/-. The First Appeals are disposed of on the above terms.
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(ASHOK BHAN J.) PRESIDENT Sd/-
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(VINEETA RAI) MEMBER /sks/