State Consumer Disputes Redressal Commission
Sagolsem Naran Singh vs Director, Rims And 3 Others on 9 April, 2018
BEFORE THE MANIPUR STATE CONSUMER DISPUTES REDRESSAL
COMMISSION
(STATE COMMISSION)
IMPHAL
MANIPUR
Complaint Case No. CC/24/2010
Sagolsem Naran Singh Vs. Director, RIMS and 3 others
and Others
BEFORE:
HON'BLE MR. JUSTICE T.Nandakumar PRESIDENT
HON'BLE MR. M.Padmeshwor Singh JUDICIAL MEMBER
HON'BLE MRS. A.Nibedita Devi MEMBER
For the Paikhomba, Advocate
Complainant:
For the Opp.
Mr.Devananda SIngh,Advocate, for A. Golly(R.1), Advocate
Party:
Dated : 09 Apr 2018
ORDER
By this complaint case, the complainant Shri Sagolsem Naran Singh, who is the father of Late Sagolsem Roger who died at about 2.30 a.m. of 01.01.2010 in the Intensive Coronary Care Unit (ICCU) of the Regional Institute of Medical Sciences (for short RIMS) is claiming compensation at the tune of Rs. 79,10,000/- (Rupees seventy-nine lakhs ten thousand) only for negligence and deficiency of service of the Respondents thereby resulting to the death of his son, Sagolsem Roger.
2. The concise facts of the respective case of the parties sufficient for deciding this case in merit are briefly recapitulated. For appreciating the allegation and assertion of the complainant regarding the medical negligence and deficiency of service of the Respondents it would be profitable to refer the decision of the Apex Court (Supreme Court) in Ravneet Singh Bagga vs. KLM Royal Dutch Airlines & Anr. (2000) 1 SCC 66 wherein the Apex Court held that deficiency in service cannot be alleged without attributing fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be performed by a person in pursuance of a contract or otherwise in relation to any service. The burden of proving the deficiency in service is upon the person who alleged it. The Apex Court in Nizam's Institute of Medical Sciences vs. Prasanth S. Dhananka & Ors. (2009) 6 SCC 1 held that in a case involving medical negligence, once the initial burden has been discharged by the complainant by making out a case of negligence on the part of the hospital or the doctors concerned, the onus then shifts on to the hospital or to the attending doctors and it is for the hospital to satisfy the court that there was no lack of care or diligence.
-1-3. On 24.12.2009, the complainant's son, Shri Sagolsem Roger was admitted to Male Medicine Ward - IV (MMW-IV) of RIMS hospital as referred by Dr. Sachin Deba and he was transferred to Unit No. 1 MMW for treatment of Effusive Constructive Pericaerditis, Post Pulmonary Kochs, Lungs Fibrosis and Bronchial Asthma, thereafter the patient was transferred to Cabin No. 29 on 25.12.2009. The respondent No. 3, Dr. M. Kullachandra Singh, Prof. & Head of Department, Department of Medicine, RIMS was head of the Unit No. 1 of the MMW, RIMS. On the instruction of the Doctors of the Unit No. 1 MMW many tests such as Complete Haemogram, Liver Function Test, Kidney Function Test, Plasma Glucose, Urine Analysis were conducted at the private diagnostic centre i.e. Babina Diagnostic Centre, RIMS road, Imphal. All the expenses of such testings conducted in the Babina Diagnostic Centre were borne by the complainant but the complainant paid the charge for conducting the different tests of his son, Sagolsem Roger i.e. Blood Test, Sugar test, Urine test, X-Ray, ECG and other tests conducted by the hospital i.e. RIMS hospital. On 27.12.2009, the attending Doctors i.e. the Doctors of Unit No. 1 of MMW had advised to refer the patient i.e. the complainant's son to one Dr. Th. Suraj Singh, Consultant Neurologist for examination of the patient for seeking his opinion and the advice. However, the complainant's son was not examined by Dr. Th. Suraj Singh. At about 4.20 p.m. of 31.12.2009, the complainant's son S. Roger was transferred to Bed No. 3 of ICCU- III of RIMS hospital. However, the same treatment was continued with only two additional medicines. There were repeated complaints of difficulty in breathing of his son, S. Roger to the opposite party No. 4 i.e. Dr. Geeta Thiyam, who was in-charge of the ICCU, but the respondent No. 4 mechanically recorded the BP (Blood Pressure) as well as the PR (pulse rate) of his son when his condition was serious. Except the recording of the BP (Blood Pressure) and PR (pulse rate) of his son, the respondent No. 4 did nothing, she did not even inform the attending doctors i.e. the doctors of the Unit No. 1 MMW who transferred the complainant's son to Bed No. 3 of the ICCU. When the condition of S. Roger was very critical, at about 9 p.m. of 31.12.2009, the complainant called the respondent No. 4 from her private chamber. The respondent No. 4 did not do her duty as a doctor in-charge of ICCU for making an attempt to save the life of the complainant's son by taking recourse to all the procedures prescribed for treatment of the patients of critical condition and also did not inform the attending doctors i.e. the doctors of the Unit No. 1 of MMW. The respondent No. 4 was furious to the complainant for making repeated calls by stating that nothing will happen to his son who was in a very critical condition. At about 1 a.m. of 01.01.2010, the condition of the patient, S. Roger became too worse as such the complainant went to call the opposite party No. 4 at her chamber requesting her to see the condition of his son. The respondent No. 4 was very furious and told the complainant that "don't call every time for every little things, don't call again" and returned back to her chamber and kept the door under locked and key by that time his son was shivering continuously. There was no one to look after his son. He was injected a) Inj. Doburan with 5% Dextrose, b) Inj. R/L (Ringor Lactate) with Inj. MVI, c) Inj. Dopamine with 5% Dextrose and d) Inj. Dofuse with Inj. NS (Normal Saline).
4. At about 2.30 a.m. of 01.01.2010, the complainant's son S. Roger passed away. The complainant alerted the attending staff nurse on duty that his son passed away. Only after the complainant's son passed away, the respondent No. 4 rushed to the bed of his son, where the lifeless body of his son was lying motionlessly and issued the Death Certificate at about 3.00 a.m. of 01.01.2010. It is also the further case of the complaint that his son, S. Roger was critically sick at the time of admission but the Doctors of the RIMS never gave the adequate information about the condition of his son or its treatment plan to the complainant and his son. None of the attending doctors explained the need of Paricardiectomy (operation of heart) to save the life of his son. It is the admitted case of the respondents that it is the duty of the Doctors on duty or the head of the department to refer the patient to and seek advice of the other doctors or specialist doctors who -2- can give the best possible treatment depending on the seriousness to save the life of the patient. It is an undeniable fact that the attending doctors of the Unit No. 1 of MMW, Dr. M. Kullachandra, Prof. & Head of Department, Department of Medicine, RIMS did not refer the complainant's son to seek the advice of the Thoracic surgeon, even if, it is the case of the respondents that the patient i.e. the complainant's son needed an early Paricardiectomy to save his life.
5. In the course of the hearing of the present complaint, as the respondents had contended that the patient i.e. complainant's son needed early Paricardiectomy to save his life, this Commission asked the party as to whether Doctors who can perform the Paricardiectomy were available at the relevant time i.e. between 24.12.2009 to 01.01.2010 in the RIMS hospital by passing an order dated 19.06.2017 and directed the parties to apprise this Commission by filing affidavits. The respondent Nos. 1 and 2 jointly filed the affidavit dated 05.07.2017 sworn by the Director of the RIMS hospital stating that as per the records of the RIMS Dr. Ksh. Kala, Assistant Professor, Cardiothoracic Surgeon, RIMS was available as a head of Cardio thoracic Surgeon at the relevant time between 24.12.2009 to 01.01.2010. Moreover, it is also stated in the affidavit that the complainant's son S. Roger was advised for Paricardiectomy to save his life. But the respondents did not give any reasons as to why the complainant's son was not referred to the Thoracic surgeon, available at RIMS hospital at that relevant point of time, who can conduct Paricardiectomy. It is the further case of the complainant that the respondent did not give the adequate information regarding the immediate requirement of Paricardiectomy of his son S. Roger to save his life and also availability of Thoracic Surgeon, Ksh. Kala in the RIMS hospital for paricardiectomy operation. Over and above, it is the further case of the complainant that the complainant had already given the authorisation for operation for saving the life of his son by signing the authorisation dated 24.12.2009. The said authorisation was in a prescribed form issued by the RIMS hospital. The said authorisation for operation was exhibited as Exhibit A/22(4) (page 115 of the Paper Book) which reads as follows :
"Authorisation for operation Etc. a. Authorisation for Medical and/or Surgical Treatment :
Permission is hereby given for the Performance of any diagnostic examination, biopsy, transfusion or operation and for the administration of any anaesthetic as may be deemed advisable in the course of this Hospital admission.
Signature of Patient/Relative Sd/- (S. Naran)
Relationship Father
Date 24.12.2009
(b) Release of Responsibility of discharge :
I am leaving/taking away from the Hospital against the Medical Advice of the Attending Physician.-3-
I acknowledge that I have been informed of the risk involved and hereby release the attending Physician and the hospital from all responsibilities for any ill effect, which may result from such discharge.
Signature of Patient/Relative .......................
Relationship Father ..............................
Date .................................."
* [ This portion i.e. (b) was not signed by the complainant (observation of this Commission)]
6. On 22.01.2010, the complainant made a complaint to the Director, RIMS hospital against the opposite party No. 4 and attending Nurses. On 21.04.2010, the complainant applied for copies of the treatment records and Nurses Daily Attendance Record of his late son, Mr. S. Roger. After much persuasion, the respondent No. 1 had furnished Xerox copies of the treatment records of the complainant's son to the complainant. Surprisingly it appears that some portions of the treatment sheets were overwritten and some words had been added and corrections of the mistakes were made. The important records reflecting the attendance of Doctors to the complainant's son had been overwritten by changing the time of attendance of the Doctors to the complainant's son. But whatsoever by the correction and overwritten, it is the case of the complainant that as per the treatment records, the specialist who is the Cardiologist, Dr. Sachin Deba attended the patient, complainant's son at the last at about 8.30 p.m. of 31.12.2009 and the last attendance of the Doctor to the patient who was in the ICCU was at 1.30 a.m. of 01.01.2010. So it is the pleaded case of the complainant that there was negligence and deficiency of service on the part of the respondents as a result the critically ill son of the complaint was hastened to death without any attendance at the very critical stage while he was in the ICCU.
7. The respondent No. 1 i.e. Regional Institute of Medical Sciences filed the written statement raising preliminary objection that the Doctors of the RIMS render service to the patient free of cost. All the doctors and employee of the RIMS are enjoying their monthly pay and salary and they are entitled for pensionary benefits. Any service rendered/delivered free of charges will not come under the purview/domain of the expression "Service" within the meaning of Section 2(1)(o) of the Consumer Protection Act, 1986. But in the para No. 3 (x to xii) of the written statement, it is clearly stated that the Hospital charged only nominal charges for investigations like X-rays, Blood and other fluid/specimen examination and also charges for CT scan, MRI etc. and also no separate charges for Intensive Care Unit (ICU) and Intensive Coronary Care Unit (ICCU). The respondent No. 1 admitted in his written statement that the patient was admitted on 24.12.2009 in a critically sick state. The respondent No. 1 asserted in his written statement that the condition of the patient and subsequent treatment plan had been fully explained to the patient party by the concerned Doctors and the patient was advised for Pericardiectomy to save his life. The patient since his admission till the time of expiry on 01.01.2010 was attended by duty Doctors, doctors and staff regularly and his condition was monitored and duly explained to the patient party. The respondent No. 1 further denies that the patient was never referred to Dr. Th. Suraj Singh, Consultant Neurologist. In view of the prevailing health condition of the patient i.e. -4- the complainant's son, Doctors and staff of RIMS hospital with utmost care and caution provided the best treatment to the patient, however, unfortunately despite of the best effort of the doctors and staffs of the hospital, the patient succumbed to his disease.
8. The respondent No. 3 did not care to file his written statement, even if there are serious allegations in the complaint that the respondent No. 3, Dr. M. Kullachandra Singh, the head of the Unit No. 1 MMW and also the Professor and head of the Department, Department of Medicine, RIMS and also head of the attending Doctors of the complainant's son did not even care to discharge his duty as the head of the unit and also did not even refer the complainant's son to the Thoracic Surgeon available at the RIMS for saving the life of the complainant's son who needed immediate Pericardiectomy. The respondent No. 3 did not even care to give his statement as head of the attending Doctors of the complainant's son, S. Roger before this Commission that the attending Doctors or the Doctor of the RIMS explained about the condition of the patient and also the need for Pericardiectomy to save the life of the patient to the complainant and patient party in support of the case of the Respondent No. 1.
9. The respondent No. 4, Dr. Geeta Thiyam filed a separate written statement raising preliminary issues in the same manner the respondent No. 1 had alleged the preliminary issue. In the written statement it is stated that at the relevant time she was a Postgraduate medical student and she was assigned emergency duty from 8.00 pm of 31.12.2009 to 8.00 am of 01.01.2010 in the ICCU of RIMS. The duty of the respondent No. 4 was to attend all the patients in the ICCU and not a single patient. On that unfortunate day, the condition of the patient was deteriorating despite the best effort of her to bring up the BP to normal level by giving proper medicine as per the instruction of the MMW/Unit No.1 (MMW - I). Moreover, the respondent No. 4 explained the condition of the patient to the complainant and relatives many times. It is the further submission of the respondent No. 4 that there was no private chamber for the Doctors in the ICCU. In the para 8 of her written statement it is stated that the truth of the matter is that the respondent No. 4 attended upon the call at about 1.00 am of 01.01.2010 and explained the deteriorating condition of the patient's health personally to the complainant and his party . At about 2.30 am of 01.01.2010 on the call of sister/attendance on duty of ICCU, the respondent No. 4 attended the patient on critical condition. Even from the written statement of the respondent No. 4, it is a clear case of the respondent No. 4 that she attended the patient at 1.00 am of 01.01.2010 and later on at 2.30 am of 01.01.2010, when the Nurses called her. It is the case of the complainant that nobody was there when the condition of the patient was very critical and he died at 2.30 am of 01.01.2010.
10. Having perused the pleading of the parties and issues suggested by the learned counsel of both the parties, following issues were framed :
" (i) Whether the complaint petition is maintainable or not?
(ii) Whether there was any negligence in the diagnosis and treatment of the deceased namely, Sagolsem Roger while being treated at RIMS and that whether there was any negligence amounting to deficiency of service or not?
(iii) Whether the respondent No. 4 was qualified and competent to treat the deceased for Effusive Constructive Pericaerditis, Post Pulmonary Kochs, Lungs Fibrosis and Bronchial Asthma without control or advice of a quailed Doctor to deal with the nature of ailment or not?
-5-(iv) Was there any Autopsy on the death body of the deceased to ascertain the cause of death before the death body was handed over to his relative or not?
(v) Whether the complainant is entitled to any of the reliefs as prayed for and if so, what would be the nature of relief to be granted by the Commission?"
11. In order to prove their case, the party had produced witnesses and documents. The complainant examined only 2 (two) witnesses i.e. P.W. No. 1, Shri Sagolsem Naran Singh (Complainant) and P.W. No. 2, Mrs. Sagolsem (O) Mangi Devi and exhibited 23 documents. On the other hand, opposite parties examined 4 (four) witnesses i.e. D.W.1 Mr. Bijendra Koijam (Medical Record Officer, RIMS hospital), D.W. No. 2, Smt. Indira Nongthombam, Staff Nurse, RIMS, who was assigned as Nurse on duty in ICCU, RIMS from 6 p.m. of 31.12.2009 to 8 a.m. of 1.1.2010., D.W. No.3, Smt Kshetrimayum Sharmila Devi, Staff Nurse, RIMS, who was assigned as Nurse on duty in ICCU, RIMS from 6 p.m. of 31.12.2009 to 8 a.m. of 1.1.2010 and D.W. No. 4, Dr. Geeta Thiyam (respondent No.4). None of the attending doctors of the patient S. Roger i.e. doctors of the Unit-I MMW headed by respondent no. 3, Dr. M. Kullachandra Singh came out to depose their statement before the Commission.
Issue No. 1 : Whether the complaint petition is maintainable or not?
12. It is the case of the respondents that the present complaint petition is not maintainable on 2 (two) grounds :
(1) Respondents had given free medical treatments to the patients including the complainant's son, S. Roger. The service of the Doctors of the RIMS hospital to the patient does not come within the meaning of "Service" as defined under Section 2 (1) (o) of the Consumer Protection Act, 1986 and also that the service of the Doctors to late S. Roger is a contract of personal service.
(2) The present complaint petition suffers from non-joinder of necessary parties in as much as Union Ministry of Health & Family Welfare, Government of India is not impleaded as a party in the complaint petition. For appreciating the meaning of "service" it would be pertinent to see the meaning of "service" as defined under Section 2 (1) (o) of the Consumer Protection Act, 1986.
For easy reference, Section 2 (1) (o) of the Consumer Protection Act is quoted hereunder :
"2 (1) (o) "service" means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service;"
13. For deciding these issues we have also perused the written statement of the respondent No.1, RIMS, wherein it is pleaded that the respondent No.1 charged nominal charge for investigation like X-ray, Blood and other fluid/specimen examinations and nominal charge for CT Scan, MRI etc. On perusal of the written statement of the respondent No. 1, it is clear that the RIMS hospital charges for investigations like X-ray, Blood and other fluid/specimen examinations and CT Scan, -6- MRI etc. but the question to be decided is as to whether RIMS authority did not charge for any investigation of the patient or examination of the patient or not? The P.W. No. 1 had deposed that the hospital (RIMS) has total bed capacity of 1074. The hospital (RIMS) has 929 general wards, 75 paying wards, 34 ICUs and 36 complementary beds as per the information uploaded in the website of RIMS. The respondent No. 1 also charges fee to the patients who are undergoing treatment at the paying ward of the hospital. This portion of the statement of P.W. No. 1, Shri Sagolsem Naran that the hospital charges fee to the patients undergoing treatment at the paying ward of the hospital and also that the hospital charges fee for the said investigations of the patient had not even been denied by the counsel of the respondents in the course of the Cross-Examination of the P.W. No. 1 (the Complainant).
14. It is fairly settled that the Consumer Protection Act, 1986 is a social beneficial legislation that deserve liberal construction. (reference - Om Prakash Vs. Reliance General Insurance and ANR. (2017) 9 SCC 724 para 10 ). The Apex Court in M/s Spring Meadows Hospital and Another vs. Harjol Ahluwalia and Another, AIR 1998 SC 1901 held that the Consumer Protection Act, 1986 is a beneficial legislation that deserves liberal construction. The Apex Court (3 Judges Bench) in Indian Medical Association Vs. V.P. Shantha (1995) 6 SCC 651 had discussed the definition of "service" in Section 2(1)(o) of the Consumer Protection Act, 1986 which consists of 3 (three) parts i.e. the main part, inclusionary part and exclusionary part. The main part is explanatory in nature and defines service to mean service of any description which is made available to the potential users. The exclusionary part excludes rendering of any service free of charge or under a contract of personal service. The exclusionary part i.e. the rendering of any service free of charge had been discussed elaborately in the Indian Medical Association Case (Supra). Para Nos. 13, 43 and 55 of the SCC in Indian Medical Association Case (Supra) read as follow :
" 13. The definition of 'service' in Section 2(1)(o) of the Act can be split up into three parts - the main part, the inclusionary part and the exclusionary part. The main part is explanatory in nature and defines service to mean service of any description which is made available to the potential users. The inclusionary part expressly includes the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical of other energy, board or lodging or both housing construction, entertainment, amusement or the purveying of news or other information. The exclusionary part excludes rendering of any service free of charge or under a contract of personal service.
43. The other part of exclusionary clause relates to services rendered "free of charge". 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 charges .-7-
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 to paying patients undoubtedly fall within the ambit of Section 2(1)(o) of the Act.
55. On the basis of the above discussion we arrive at the following conclusions:
(1) Service rendered to a patient by a medical practitioner (except where the doctor renders service free of charge to every patient or under a contract of personal service), by way of consultation, diagnosis and treatment, both medicinal and surgical, would fall within the ambit of 'service' as defined in Section 2(1) (o) of the Act.
(2) The fact that medical practitioners belong to the medical profession and are subject to the disciplinary control of the Medical Council of India and/or State Medical Councils constituted under the provisions of the Indian Medical Council Act would not exclude the services rendered by them from the ambit of the Act .
(3) A 'contract of personal service' has to be distinguished from a 'contract for personal Services'. In the absence of a relationship of master and servant between the patient and medical practitioner, the service rendered by a medical practitioner to the patient cannot be regarded as service rendered under a 'contract of personal service'. Such service is service rendered under a 'contract for personal services' and is not covered by exclusionary clause of the definition of 'service' contained in Section 2(1) (o) of the Act .
(4) The expression 'contract of personal service' in Section 2(1) (o) of the Act cannot be confined to contracts for employment of domestic servants only and the said expression would include the employment of a medical officer for the purpose of rendering medical service to the employer. The service rendered by a medical officer to his employer under the contract of employment would be outside the purview of 'service' as defined in Section 2(1) (o) of the Act.
(5) Service rendered free of charge by a medical practitioner attached to a hospital/Nursing home or a medical officer employed in a hospital/Nursing home where such services are rendered free of charge to everybody, would not -8- be "service" as defined in Section 2(1) (o) of the Act. The payment of a token amount for registration purpose only at the hospital/nursing home would not alter the position.
(6) Service rendered at a non-Government hospital/Nursing home where no charge whatsoever is made from any person availing the service and all patients (rich and poor) are given free service - is outside the purview of the expression 'service' as defined in Section 2(1) (o) of the Act. The payment of a token amount for registration purpose only at the hospital/Nursing home would not alter the position.
(7) Service rendered at a non-Government hospital/Nursing home where charges are required to be paid by the persons availing such services falls within the purview of the expression 'service' as defined in Section 2(1) (o) of the Act.
(8) Service rendered at a non-Government hospital/Nursing home where charges are required to be paid by persons who are in a position to pay and persons who cannot afford to pay are rendered service free of charge would fall within the ambit of the expression 'service' as defined in Section 2(1) (o) of the Act irrespective of the fact that the service is rendered free of charge to persons who are not in a position to pay for such services. Free service, would also be "service" and the recipient a "consumer" under the Act .
(9) Service rendered at a Government hospital/health centre/dispensary where no charge whatsoever is made from any person availing the services and all patients (rich and poor) are given free service - is outside the purview of the expression 'service' as defined in Section 2(1) (o) of the Act. The payment of a token amount for registration purpose only at the hospital/nursing home would not alter the position.
(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 such services would fall within the ambit of the expression 'service' as defined in Section 2(1) (o) of the Act irrespective of the fact that the service is rendered free of charge to persons who do not pay for such service. Free service would also be "service" and the recipient a "consumer" under the Act .
(11) Service rendered by a medical practitioner or hospital/nursing home cannot be regarded as service rendered free of charge, if the person availing the service has taken an insurance policy for medical care whereunder the charges for consultation, diagnosis and medical treatment are borne by the insurance company and such service would fall within the ambit of 'service' as defined in Section 2(1) (o) of the Act.
(12) Similarly, where, as a part of the conditions of service, the employer bears the expenses of medical treatment of an employee and his family members -9- dependent on him, the service rendered to such an employee and his family members by a medical practitioner or a hospital/nursing home would not be free of charge and would constitute 'service' under Section 2(1) (o) of the Act ."
15. From the ratio decidendi of the Indian Medical Association Case (Supra), it is clear that "free of charge" partly falls in 3 categories:-
1. Where services are rendered free of charge to everybody availing of the said services.
2. Where charges are required to be paid by everybody availing of services and
3. Where charges are required to be paid by persons availing of services but certain categories of persons who cannot afford to pay are rendered service free of charges .
The third category i.e. where charges are required to be paid by persons availing of services but the certain categories of persons who cannot afford to pay are rendered service free of charges, undoubtedly falls within the ambit of Section 2(1)(o) of the Act . No doubt where the services are rendered free of charge to everybody availing of service does not undoubtedly falls within the meaning of Section 2 (1)(o) of the Act. In the present case, RIMS undoubtedly charge fees to the patients undergoing treatment at the paying ward and also the RIMS charges fees for certain types of investigations of the patient and therefore undoubtedly, the service of the doctors in the RIMS falls under the third category propounded in the Indian Medical Association Case (supra). And as such, service of the doctors of the RIMS undoubtedly falls within the service as defined Under Section 2 (1)(o) of the Consumer Protection Act, 1986 . As such "No fee charge" is not the ground for escaping the doctors of the RIMS from their liability of negligence. This being the situation, this complaint petition cannot be dismissed on the ground that the Doctors of RIMS rendered service free of charge to some of the patients and also conducted some tes ts free of charge.
16. The Apex court in Indian Medical Association's Case (Supra) further held that a "contract of personal service" has to be distinguished from a "contract for personal services". In the absence of relationship of master and servant between the patient and medical practitioner, the service rendered by a medical practitioner to a patient cannot be regarded as service rendered as a "contract of personal service" . As such service rendered under a "contract for personal services"
is not covered by the exclusionary clause of the definition of service i.e. "contract of personal service". There is no relationship of master and servant between late Sagolsem Roger and doctors of the RIMS. The service rendered by the doctors of the RIMS to late S. Roger is a service under "contract for personal services".
17. The Apex Court in Balram Prasad vs. Kunal Saha & Ors. (2014) 1 SCC 384 after considering the earlier decision of the Apex Court in Savita Garg v. National Heart Institute ((2004) 8 SCC 56) and in Malay Kumar Ganguly case ((2009) 9 SCC 221) held that doctors cannot escape the liability for medical negligence only on the ground that he did not charge any fee . Paras 76 and 77 of the SCC in Balram Prasad's case (supra) read as follow :
"76. The appellant doctors Dr Sukumar Mukherjee and Dr Baidyanath Haldar have attempted to claim in their respective appeals that they cannot be penalized with compensation because they did not charge any fee for treatment of the deceased . Such a claim has no legal basis as in view of the categorical observations made by this Court in Savita Garg v. National Heart Institute ((2004) 8 SCC 56) and in Malay Kumar Ganguly case ((2009) 9 SCC -10-
221) wherein this Court has categorically stated that the aforesaid principle in Savita Garg case ((2004) 8 SCC 56) applies to the present case also insofar as it answers the contentions raised before us that the three senior doctors did not charge any professional fees .
77. Further, it is contended by the claimant that from a moral and ethical perspective, a doctor cannot escape liability for causing death of a patient from medical negligence on the ground that he did not charge any fee .
If that was true, poor patients who are sometimes treated for free and patients in many charitable hospitals would be killed with impunity by errant and reckless doctors . It is urged that the National Commission ought to have considered the claim made for prospective loss of income of the appellant's wife and has committed error in rejecting the same and it has also rejected the amount of the pecuniary losses of this claimant under separate headings which are mentioned in the Table referred to supra including expenses that were paid at the direction of the National Commission, namely, expenses relating to videoconferencing or payment for the Court Commissioners. Most of these direct losses were suffered by the claimant as a result of the wrongful death of his wife in the long quest for justice over the past 15 years as a result of the wrongful death of his wife. The National Commission did not provide any reason as to why the said claims were denied to him, as per this Court's decision in Charan Singh v. healing Touch Hospital ((2000) 7 SCC 668 : 2000 SCC (Cril) 1444)."
Medical Negligence and Government Hospital
18. The Apex Court in V. Krishnakumar vs. State of Tamil Nadu & Ors. (2015) 9 SCC 388 held that the state would be vicariously liable on account of negligence of its doctors and other employee . Para 34 of the SCC in V. Krishnakumar's case (supra) reads as follow "34. It is settled law that the Hospital is variously liable for the acts of its doctors vide Savita Garg v. National Heart Institute (2004) 8 SCC 56 , also followed in Balram Prasad case (2014) 1 SCC 384. Similarly in Achutrao Haribhau Khodwa v. State of Maharastra (1996) 2 SCC 634, this Court unequivocally held that the State would be vicariously liable for the damages which may become payable on account of negligence of its doctors or other employees . By the same measure, it is not possible to absolve Respondent 1, the State of Tamil Nadu, which establishes and administers such hospitals through its Department of Health, from its liability."
The Apex court had discussed the meaning of "contract of personal service mentioned in Section 2(1)(o) of the Consumer Protection Act, 1986 and also had further discussed the distinction between the expression "contract of service and contract for service" in Kishori Lal Vs. Chairman, E.S.I. Corporation AIR 2007 SC 1819 and held that the service rendered by the Doctors, employee of the hospital to a patient of the hospital does not come under "a contract of personal service". Paras 8, 17, 18 and 19 of the AIR in Kishori Lal's case read as under:
-11-"8. ...... The exclusionary part in Section 2(1)(o) excludes from the main part in service rendered (i) free of charge; or (ii) under a contract of personal service. The expression 'contract of personal service' in the exclusionary part of Section 2(1)(o) must be construed as excluding the services rendered by an employee to his employer under the contract of personal service from the ambit of the expression 'service'. There is a distinction between a 'contract of service' and a 'contract for service'. A 'contract for service' implies a contract whereby one party undertakes to render service e.g. professional or technical service, to or for another in the performance of which he is not subject to detailed direction and control and exercises professional or technical skill and uses his own knowledge and discretion, whereas a 'contract of service' implies relationship of master and servant and involves an obligation to obey orders in the work to be performed and as to its mode and manner of performance. A contract of service is excluded for consideration from the ambit of definition of 'service' in the CP Act, whereas a contract for service is included. ..............
17. It has been held in numerous cases of this court that the jurisdiction of a consumer forum has to be construed liberally so as to bring many cases under it for their speedy disposal. In the case of M/s Spring Meadows Hospital and Another v. Harjol Ahluwalia and Another, AIR 1998 SC 1801, it was held that the CP Act creates a framework for speedy disposal of consumer disputes and an attempt has been made to remove the existing evils of the ordinary court system. The Act being a beneficial legislation should receive a liberal construction . In State of Karnataka v. Vishwabarathi House Building Co-op, Society and Others, AIR 2003 SC 1043, the Court speaking on the jurisdiction of the consumer fora held that the provisions of the said Act are required to be interpreted as broadly as possible and the fora under the CP Act have jurisdiction to entertain a complaint despite the fact that other fora/courts would also have jurisdiction to adjudicate upon the lis . These judgments have been cited with approval in paras 16 and 17 of the judgment in Secretary, Thirumurugan Co-operative Agriculture Credit Society v. M. Lalitha and Others. (2004) 1 SCC 305. The trend of the decisions of this Court is that the jurisdiction of the consumer forum should not and would not be curtailed unless there is an express provision prohibiting the consumer forum to take up the matter which falls within the jurisdiction of civil court or any other forum as established under some enactment . The court had gone to the extent of saying that if two different fora have jurisdiction to entertain the dispute in regard to the same subject, the jurisdiction of the consumer forum would not be barred and the power of the consumer forum to adjudicate upon the dispute could not be negated.
18. The submission of the learned counsel for the respondent is that the claim made by the appellant before the consumer forum raises a dispute in regard to damages for negligence of doctors in the ESI hospital/dispensary and would tantamount to claiming benefit and the amount under the ESI Act provisions and would fall within clause (e) of Section 75(1) and, therefore, it is -12- the Employees' Insurance Court alone which has the jurisdiction to decide it. We are afraid that we cannot agree with the submission made by the learned counsel . Section 75 provides for the subjects on which the jurisdiction shall be exercised by the Employees' Insurance Court. Clause (e) of Section 75(1) gives power to the Employees' Insurance Court to adjudicate upon the dispute of the right of any person to any benefit and as to the amount and duration thereof. The benefit which has been rendered to, has a reference to the benefits under the Act, i.e., the ESI Act. The Employees' State Insurance (Central) Rules, 1950 (hereinafter referred to as "the Rules") have been framed in exercise of the powers under Section 95 of the ESI Act. Rule 56 provides for maternity benefits, Rule 57 for disablement benefits, Rule 58 for dependents' benefits, Rule 60 for medical benefits to insured person who ceases to be in an insurable employment on account of permanent disablement and Rule 61 for medical benefits to retired insured persons. Thus, there are the benefits which are provided under the Rules to the employees and the ex-employees for which claim can be made in the Employees' Insurance Court. The appellant's claim has no relation to any of the benefits which are provided in the Rules for which the claim can be made in the Employees' Insurance Court. The appellant's claim is for damages for the negligence on the part of the ESI hospital/dispensary and the doctors working therein .
19. A bare perusal of the provisions of clauses (a) to (g) of Section 75(1) clearly shows that it does not include claim for damages for medical negligence, like the present case which we are dealing with. Although the question does not directly arise before us, we shall consider what in the ordinary course shall constitute negligence."
19. After analysing the ratio decidendi of the case in Balram Prasad's case (Supra), Sabita Garg's case (Supra) and Indian Medical Association's case (Supra), we are of the considered view that the Doctors of the RIMS hospital cannot escape the liability for medical negligence only on the ground that they did not charge any fee and further held that the service of the Doctors of the RIMS to late S. Roger is not under the "contract of personal service" which comes under the exclusionary clause of Section 2 (1)(o) of the Consumer Protection Act, 1986. We have already observed that the Consumer Protection Act is a benevolent/beneficial legislation that deserves liberal construction, the Apex Court in H.N. Shankara Shastry vs. Asstt. Director of Agriculture, Karnataka (2004) 6 SCC 230 held that (para 7 of the SCC) that "The approach of the Forums has to be rational consistent with the purpose of the Act rather than technical. In Secy. Thirumurugan Coop. Agricultural Credit Society v. M. Lalitha (2004) 1 SCC 305 , this court has expressed that ; (SCC p.312, para 12) "Having due regard to the scheme of the Act and purpose sought to be achieved to protect the interest of the consumers better, the provisions are to be interpreted broadly, positively and purposefully..."
This Court in Lucknow Development Authority v. M.K. Gupta (1994)1 SCC 243 has observed that; (SCC pp.251-52, para 2) -13- " [I]t appears appropriate to ascertain the purpose of the Act, the objective it seeks to achieve and the nature of social purpose it seeks to promote as it shall facilitate in comprehending the issue involved and assist in construing various provisions of the Act effectively. To begin with the preamble of the Act, which can afford useful assistance to ascertain the legislative intention, it was enacted, 'to provide for the protection of the interest of consumers'. Use of the word 'protection' furnishes key to the minds of makers of the Act. Various definitions and provisions which elaborately attempt to achieve this objective have to be construed in this light without departing from the settled view that a preamble cannot control otherwise plain meaning of a provision. In fact the law meets long-felt necessity of protecting the common man from such wrongs for which the remedy under ordinary law for various reasons has become illusory. Various legislations and regulations permitting the State to intervene and protect interest of the consumers have become a haven for unscrupulous ones as the enforcement machinery either does not move or it moves ineffectively, inefficiently and for reasons which are not necessary to be stated. The importance of the Act lies in promoting welfare of the society by enabling the consumer to participate directly in the market economy. It attempts to remove the helplessness of a consumer which he faces against powerful business, described as, 'a network of rackets' or a society in which, 'producers have secured power to 'rob the rest' and the might of public bodies which are degenerating into storehouses of inaction where papers do not move from one desk to another as a matter of duty and responsibility but for extraneous consideration leaving the common man helpless, bewildered and shocked . The malady is becoming so rampant, widespread and deep that the society instead of bothering, complaining and fighting against it, is accepting it as part of life. The enactment in these unbelievable yet harsh realities appears to be a silver lining, which may in course of time succeed in checking the rot ."
20. The Apex Court had already held in H.N. Shankara Shastry's case (Supra) that approached of the Forums has to be rational consistent with the purpose of the Act rather than technical. The Apex Court is of the similar view in Sabita Garg (Smt) vs. Director, National Heart Institute (2004) 8 SCC 56 that non-impleadment of the treating Doctors and nursing staff is not fatal to the complaint . Similarly in the present case, as the RIMS had already been impleaded as respondent, mere non-impleadment of Union Ministry of Health & Family Welfare, Government of India will not entail dismissal of the present complaint. RIMS hospital is vicariously liable with the medical negligence of its Doctor and also that it is only technical matter that since the RIMS is under the Ministry of Health & Family Welfare, Government of India, the Government of India is to be impleaded as a party in the present complaint. Para 10 of the SCC in Sabita Garg's case (Supra) held:
"10. The Consumer Forum is primarily meant to provide better protection in the interest of the consumers and not to short-circuit the matter or to defeat the claim on technical grounds. Reverting back to the facts of the present case, whether non-joinder of the treating doctor and nursing staff can result in dismissal of the claim petition . As a matter of fact, when a patient is admitted to a highly commercial hospital like the present Institute, a thorough check-up -14- of the patient is done by the hospital authorities, it is the Institute which selects, after the examination of the patient that he suffers from what malady, and who is the best doctor who can attend, except when the patient or the family members desire to be treated by a particular doctor or surgeon as the case may be. Normally, private hospitals have a panel of doctors in various specialities and it is they who choose who is to be called. It is very difficult for the patient to give any detail of which doctor treated the patient and whether the doctor was negligent or the nursing staff was negligent. It is very difficult for such patient or his relatives to implead them as parties in the claim petition. It will be an impossible task and if the claim is to be defeated on that ground it will virtually be frustrating the provisions of the Act, leaving the claimant high and dry . We cannot place such a heavy burden on the patient or the family members/relatives to implead all those doctors who have treated the patient or the nursing staff to be impleaded as party . It will be a difficult task for the patient or his relatives to undertake this searching enquiry from the hospital and sometimes the hospital may not cooperate. It may give such details and sometimes may not give the details. Therefore, the expression used in Rule 14(1)(b), "so far as they can be ascertained", makes it clear that the framers of the Rules realise that it will be very difficult especially in the case of medical profession to pinpoint who is responsible for not providing proper and efficient service which gives rise to the cause for filing a complaint and especially in a case like the one in hand ."
21. The Apex Court in V. Krishnakumar vs. State of Tamil Nadu & Ors. (2015) 9 SCC 388 held that (para 34 of SCC) "34. It is settled law that the Hospital is vicariously liable for the acts of its doctors vide Savita Garg v. National Heart Institute ((2004) 8 SCC 56), also followed in Balram Prasad case (Balram Prasad v. Kunal Saha, (2014) 1 SCC
384). Similarly in Achutrao Haribhau Khodwa v. State of Maharastra ((1996) 2 SCC 634), this Court unequivocally held that the State would be vicariously liable for the damages which may become payable on account of negligence of its doctors or other employees. By the same measure, it is not possible to absolve Respondent 1, the State of Tamil Nadu, which establishes and administers such hospitals through its Department of Health, from its liability."
22. For the reasons discussed above, issue No. 1 is decided against the respondents. In other words, the present complaint petition is maintainable.
Issue No. 2 : Whether there was any negligence in the diagnosis and treatment of the deceased namely, Sagolsem Roger while being treated at RIMS and that whether there was any negligence amounting to deficiency of service or not?
Issue No. 3 : Whether the respondent No.4 was qualified and competent to treat the deceased for Effusive Constructive Pericaerditis, Post Pulmonary Kochs, Lungs Fibrosis and Bronchial Asthma without control or advice of a qualified Doctor to deal with the nature of ailment or not?
-15-23. Since these two issues, are co-related, are jointly taken up for consideration and decision. Meaning of "deficiency" is defined under Section 2(1)(g) of the Consumer Protection Act, 1986 which reads as follows:
"2(1)(g) "deficiency" means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service;"
24. In exercise of the power conferred under Section 20(A) read with Section 33 (m) of the Indian Medical Council Act, 1956 (102 of 1956), Medical Council of India with the previous approval of the Central Government makes the Regulation relating to the Professional conduct, etiquette and ethics for the registered medical practitioner and those rules are called "The Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 (for short Regulations, 2002). The Regulation 1.3 -1.4 clearly prescribed the maintenance of medical records and registered medical practitioner shall maintain a register of medical service giving full details of the service and also shall maintain medical record pertaining to his/her indoor patients for a period of 3 years from the date of commencement of the treatment in the standard proforma laid down by the Medical Council of India. The chapter 2 of the Regulation 2002 deals with the duties of the physicians to their patients. Obligations to the sick are prescribed under Regulation 2.1 of the Regulation 2002 . For easy reference the Regulation 2.1 of the Regulation 2002 is quoted hereunder:
"2.1.1 Though a physician is not bound to treat each and every person asking his services, he should not only be ever ready to respond to the calls of the sick and the injured, but should be mindful of the high character of his mission and the responsibility he discharges in the course of his professional duties. In his treatment, he should never forget that the health and the lives of those entrusted to his care depend on his skill and attention. A physician should endeavour to add to the comfort of the sick by making his visits at the hour indicate to the patients . A physician advising a patient to seek service of another physician is acceptable, however, in case of emergency a physician must treat the patient. No physician shall arbitrarily refuse treatment to a patient. However for good reason, when a patient is suffering from an ailment which is not within the range of experience of the treating physician, the physician may refuse treatment and refer the patient to another physician .
2.1.2 Medical practitioner having any incapacity detrimental to the patient or which can affect his performance vis-a-vis the patient is not permitted to practice his profession.
The Regulation 2.1 clearly prescribed that when a patient is suffering from an ailment which is not within the range of experience of the treating physician, the physician may refuse treatment and refer the patient to another physician .
MEDICAL ETHICS AND DOCTOR-PATIENT RELATIONSHIP -16-
25. The Code of Medical Ethics/Medical Ethics of the Doctors and also formation of Doctor-patient relationship had been discussed in threadbare by the Hon'ble Supreme Court in P.B. Desai V. State of Maharashtra & Ors (2013) 15 SCC 481 and held that the formation of a doctor-patient relationship is integral to the formation of a legal relationship and consequent rights and duties, forming the basis of liability of a medical practitioner. Due to the very nature of the medical profession, the degree of responsibility on the practitioner is higher than that of any other service provider . The ethical "duty to treat" on the part of the Doctors is clearly covered by the Code of Medical Ethics, 1972. Para 39 of the SCC in P.B. Desai's case (supra) reads as follow :
"(2) Duty of care which a doctor owes towards his patient
39. Once it is found that there is "duty to treat" there would be a corresponding "duty to take care" upon the doctor qua his patient. In certain context, the duty acquires ethical character and in certain other situations, a legal character. Whenever the principle of "duty to take care" is founded on a contractual relationship, it acquires a legal character. Contextually speaking, legal "duty to treat" may arise in a contractual relationship or governmental hospital or hospital located in a public sector undertaking. The ethical "duty to treat" on the part of doctors is clearly covered by the Code of Medical Ethics, 1972. Clause 10 of this Code deals with "obligation to the sick" and Clause 13 casts obligation on the part of the doctors with the caption "Patient must not be neglected". Whenever there is a breach of the aforesaid Code, the aggrieved patient or the party can file a petition before the relevant disciplinary committee constituted by the State Medical Council concerned. "
Regulation 2.4 of the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 read as follows :
"2.4 The patient must not be neglected. - A physician is free to choose whom he will serve. He should, however, respond to any request for his assistance in an emergency. Once having undertaken a case, the physician should not neglect the patient, nor should he withdraw from the case without giving adequate notice to the patient and his family. Provisionally or fully registered medical practitioner shall not wilfully commit an act of negligence that may deprive his patient or patients from necessary medical care ."
Duty of Doctor to give adequate information to the patient/patient party so as to enable them to make a balanced judgment
26. As discussed above under the Doctor-patient relationship and also other medical ethics it is the bounden duty of the doctors to give the best possible treatment which is unavoidably required as a last resort. Further, it is also the bounden duty of the opposite party No. 1, opposite party No. 3 and opposite party No. 4 to furnish the adequate information to the patient and his party so as to enable the patient and his party to make a balanced judgment. The Apex Court in Samira Kohli vs. Dr. Prabha Manchanda & Anr. (2008) 2 SCC 1 held that attending doctors should furnish the adequate information to the patient so as to enable the patient to make a balanced judgment as to whether he should submit himself to the particular treatment or not. Paras 18, 20 and 49 of the SCC in Samira' case (supra) read as follow:
-17-"18. 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 dentist's 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 doctor's duty to disclose the necessary information to the patient to secure his consent. "Informed consent" is defined in Taber's 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 .""
20. The basic principle in regard to patient's consent may be traced to the following classic statement by Cardozo, J. in Schloendorff v. Society of New York Hospital (211 NY 125 : 105 NE 92 (1914)): (NE p. 93, paras 5-6) "... Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and surgeon who performs an operation without his patient's consent commits an assault, for which he is liable in damages.
This principle has been accepted by an English court also. F. ( Mental Patient :
Sterilisation ), In re ((1990) 2 AC 1 : (1989) 2 WLR 1025 : (1989) 2 All ER 545 sub nom F. v. West Berkshire HA) the House of Lords while dealing with a case of sterilisation of a mental patient reiterated the fundamental principle that every person's body is inviolate and performance of a medical operation on a person without his or her consent is unlawful. The English Law on this aspect is summarized thus in Principles of Medical Law (published by Oxford University Press, 2nd Edn., edited by Andrew Grubb, p. 133, para 3.04):-18-
"Any intentional touching of a person is unlawful and amounts to the tort of battery unless it is justified by consent or other lawful authority. In medical law, this means that a doctor may only carry out a medical treatment or procedure which involves contact with a patient if there exists a valid consent by the patient (or another person authorized by law to consent on his behalf) or if the touching is permitted notwithstanding the absence of consent."
49. We may now summarise 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 and unnecessary treatment.
(iii) Consent given only for a diagnostic procedure, cannot be considered as consent for therapeutic treatment. Consent given for a specific treatment procedure will not be valid for conducting some other treatment procedure. The fact that the unauthorized additional surgery is beneficial to the patient, or that it would save considerable time and expense to the patient, or would relieve the patient from pain and suffering in future, are not grounds of defence in an action in tort for negligence or assault and battery. The only exception to this rule is where the additional procedure though unauthorized, is necessary in order to save the life or preserve the health of the patient and it would be unreasonable to delay such unauthorized procedure until patient regains consciousness and takes a decision.
-19-(iv) There can be a common consent for diagnostic and operative procedures where they are contemplated. There can also be a common consent for a particular surgical procedure and an additional or further procedure that may become necessary during the course of surgery.
(v) The nature and extent of information to be furnished by the doctor to the patient to secure the consent need not be of the stringent and high degree mentioned in Centerbury (Centerbury v. Spence, 464 F 2d 772 : 150 US App DC 263 (1972) but should be of the extent which is accepted as normal and proper by a body of medical men skilled and experienced in the particular field. It will depend upon the physical and mental condition of the patient, the nature of treatment, and the risk and consequences attached to the treatment."
NEGLIGENCE/MEDICAL NEGLIGENCE
27. In Halsbury's Laws of England - Vol. 6 (3 rd Edition); defines Negligence as :
"22. Negligence : duties owned to the patient.
A person who holds himself out as ready to give medical (a) advice or treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person, whether he is a registered medical practitioner or not, who is consulted by a patient, owes him certain duties, namely, a duty of care in deciding whether to undertake the case; a duty of care in deciding what treatment to give: and a duty to care in his administration of that treatment (b). A breach of any of these duties will support an action for negligence by the patient (c) ,
23. Degree of skill and care required.
The practitioner must bring to his task 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 he requires (d); a person is not liable in negligence because someone else of greater skill and knowledge would have prescribed different treatment or operated in a different way (d); nor is he guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art, although a body of adverse opinion also existed among medical men (e)."
28. The Apex Court had discussed the meaning of medical negligence in Municipal Corporation of Greater Bombay -vs- Laxman Iyer and another (2003) 8 SCC 731 held that the negligence is omission of duty caused either by an omission to do something which a reasonable man guided upon those considerations, who ordinarily by reason of conduct of human affairs would do or be obligated to, or by doing something which a prudent or reasonable man -20- would not do . Negligence is a failure to observe, for the protection of interests of another person, the degree of care, precaution and vigilance which the circumstances justly demand. The idea of negligence of duty are strictly co-related. Para 6 of the SCC in Municipal Corporation's case (supra) read as follows:
"6. ..................It is first necessary to find out what is a negligent act. Negligence is omission of duty caused either by an omission to do something which is a reasonable man guided upon those considerations, who ordinarily by reason of conduct of human affairs would do or be obligated to, or by doing something which a prudent or reasonable man would not do . Negligence does not always mean absolute carelessness, but want of such a degree of care as is required in particular circumstances. Negligence is failure to observe, for the protection of the interests of another person, the degree of care, precaution and vigilance which the circumstances justly demand, whereby such other person suffers injury. The idea of negligence and duty are strictly correlative. Negligence means either subjectively a careless state of mind, or objectively careless conduct. Negligence is not an absolute term, but is a relative one; it is rather a comparative term. No absolute standard can be fixed and no mathematically exact formula can be laid down by which negligence or lack of it can be infallibly measured in a given case. What constitutes negligence varies under different conditions and in determining whether negligence exists in a particular case, or whether a mere act or course of conduct amounts to negligence, all the attending and surrounding facts and circumstances have to be taken into account. It is absence of care according to circumstances. To determine whether an act would be or would not be negligence, it is relevant to determine if any reasonable man would foresee that the act would cause damage or not. The omission to do what the law obligates or even the failure to do anything in a manner, mode or method envisaged by law would equally and per se constitute negligence on the part of such person . If the answer is in the affirmative, it is negligent act. Where an accident is due to negligence of both parties, substantially there would be contributory negligence and both would be blamed. In a case of contributory negligence, the crucial question on which liability depends would be whether either party could, by exercise of reasonable care, have avoided the consequence of the other's negligence. Whichever party could have avoided the consequence of the other's negligence would be liable for the accident. If a person's negligent act or omission was the proximate and immediate cause of death, the fact that the person suffering injury was himself negligent and also contributed to the accident or other circumstances by which the injury was caused would not afford a defence to the other. Contributory negligence is applicable solely to the conduct of a plaintiff .
29. The Apex Court in Malay Kumar Ganguly v. Dr. Sukumar Mukherjee & Ors (2009) 9 SCC 221 held that negligence is an omission to do something which ought to have been done or -21- an act of commission which ought not have been done in law . Para 135 and 136 of the SCC in Malay Kumar Ganguly's case (supra) read as follow :
"135. 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 . (See Law of Torts, Ratanlal & Dhirajlal, 24 th Edn. 2002, at pp. 441-42) Negligence means "either subjectively a careless state of mind, or objectively careless conduct. It is not an absolute term but is a relative one; it is rather a comparative term. In determining whether negligence exists in a particular case, all the attending and surrounding facts and circumstances have to be taken into account". (See Municipal Corpn. of Greater Bombay v. Laxman Iyer (2003) 8 SCC 731 : 2004 SCC(Cri) 252, SCC para 6, Advanced Law Lexicon, P. Ramanatha Aiyar, 3 rd Edn. 2005, p. 3161.)
136. Negligence is strictly nonfeasance and not malfeasance. It 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 in violation of statute or ordinance or is contrary to the dictates of ordinary prudence ."
30. The Apex Court in Martin F.D'souza vs. Mohd. Ishfaq (2009) 3 SCC 1 held that "47. ............
Precautions which doctors/hospitals/nursing homes should take
(a) Current practices, infrastructure, paramedical and other staff, hygiene and sterility should be observed strictly. Thus, in Sarwat Ali Khan v. Prof R. Gogi (OP No. 181 of 1997 decided on 18-7-2007 (NC)) the facts were that out of 52 cataract operations performed between 26-9-1995 and 28-9-1995 in an eye hospital, 14 persons lost their vision in the operated eye. An enquiry revealed that in the operation theatre two autoclaves were not working properly. This equipment is absolutely necessary to carry out sterilization of instruments, cotton, pads, linen, etc. and the damage occurred because of its absence in working condition . The doctors were held liable.
(b) No prescription should ordinarily be given without actual examination . The tendency to give prescription over the telephone, except in an acute emergency, should be avoided.
(c) A doctor should not merely go by the version of the patient regarding his symptoms, but should also make his own analysis including tests and investigations where necessary .
(d) A doctor should not experiment unless necessary and even then he should ordinarily get a written consent from the patient .
-22-(e) An expert should be consulted in case of any doubt . Thus, in Indrani Bhattacharjee (OP No. 233 of 1996 decided on 9-8-2007 (NC)), the patient was diagnosed as having "mild lateral wall ischaemia". The doctor prescribed medicine for gastroenteritis, but he expired. It was held that the doctor was negligent as he should have advised consulting a cardiologist in writing .
(f) Full record of the diagnosis, treatment, etc. should be maintained ."
31. The Apex Court in Jacob Mathew vs. State of Punjab & Anr. (2005) 6 SCC 1 held that failure to maintain standard of care prescribed by law thereby committing breach of such duty is medical negligence . Para 11 and 48 of the SCC in Jacob Mathew's case (supra) read as follow :
"11. According to Charlesworth & Percy on Negligence (10 th Edn., 2001), in current forensic speech, negligence has three meanings. They are: (i) a state of mind, in which it is opposed to intention; (ii) careless conduct; and
(iii) the breach of a duty to take care that is imposed by either common or statute law. All three meanings are applicable in different circumstances but any one of them does not necessarily exclude the other meanings. (para 1.01) The 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 casually connected with such breach and recognized by the law, has been suffered by the complainant. (para 1.23) If the claimant satisfies the court on the evidence that these three ingredients are made out, the defendant should be held liable in negligence. (para 1.24).
48. We sum up our conclusions as under:
(1) Negligence is the breach of a duty caused by omission to do something which is 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. The definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P. Singh), referred to hereinabove, holds goods. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: "duty", "breach" and "resulting damage" .
-23-(2) Negligence in the context of the medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence . 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 of method of treatment was also available or simply because of more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. When it comes to failure of taking precautions, what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. So also, the standard of care, while assessing the practice as adopted, is judged in the light of knowledge available at the time of the incident, and not at the date of trial . Similarly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that particular time (that is, the time of the incident) at which it is suggested it should have been used.
(3) 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 . It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed for better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.
(4) The test for determining medical negligence as laid down in Bolam case (Bolam v. Friern Hospital Management Committee, (1957) 1 WLR 582 :
(1957) 2 All ER 118 (QBD)), WLR at p. 586 holds good in its applicability in India .
(5) The jurisprudential concept of negligence differs in civil and criminal law. What may be negligence in civil law may not necessarily be negligence in criminal law. For negligence to amount to offence, the element of mens rea must be shown to exist. For an act to amount to criminal negligence, the degree of negligence should be much higher i.e. gross or of a very high degree. Negligence which is neither gross nor of a higher degree may provide a ground for action in civil law but cannot form the basis for prosecution.-24-
(6) The word "gross" has not been used in Section 304-A IPC, yet it is settled that in criminal law negligence or recklessness, to be so held, must be of such a high degree as to be "gross". The expression "rash or negligent act" as occurring in Section 304-A IPC has to be read as qualified by the word "grossly".
(7) To prosecute a medical professional for negligence under criminal law it must be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do. The hazard taken by the accused doctor should be of such a nature that the injury which resulted was most likely imminent.
(8) Res ipsa loquitur is only a rule of evidence and operates in the domain of civil law, specially in cases of torts and helps in determining the onus of proof in actions relating to negligence . It cannot be pressed in service for determining per se the liability for negligence within the domain of criminal law. Res ipsa loquitur has, if at all, a limited application in trial on a charge of criminal negligence."
Hippocratic Oath of Doctors
32. Medical profession has long subscribed to a body of ethical statements developed primarily for the benefit of the patient. The oldest expression of this basic principle comes from Hippocrates, an early Greek physician, born in 460 BC who came to be known as the "Father of Medicine" and had devoted his entire life to the advancement of medical science . He formulated a code of conduct in the form of the Hippocratic Oath, as he realised that knowledge and skill were not enough for a physician without a code of standards and ideals. He coined an oath of integrity for physicians, a code of standards and ideals to which they must swear to adhere in the practice of their profession. This continues till date to be the oath administered to doctors when they join the profession. The oath administered by the Doctors who join the profession i.e. the Hippocratic Oath had been discussed and dealt with by the Apex Court in State of Punjab vs. Shiv Ram & Ors. (2005) 7 SCC 1 . Para 34, 35 and 36 of the SCC in Shiv Ram's case (Supra) read as follow :
" (2) How the medical profession ought to respond
34. The medical profession is one of the oldest professions of the world and is the most humanitarian one. There is no better service than to serve the suffering, wounded and the sick. Inherent in the concept of any profession is a code of conduct, containing the basic ethics that underline the moral values that govern professional practice and is aimed at upholding its dignity.
Medical Ethics underpins the values at the heart of the practitioner-client relationship. In the recent times, professionals are developing a tendency to forget that the self-regulation which is at the heart of their profession is a privilege and not a right and a profession obtains this privilege in return for an implicit contract with society to provide good, competent and accountable service to the public. It must always be kept in mind that doctor's is a noble -25- profession and the aim must be to serve humanity, otherwise this dignified profession will lose its true worth.
35. Medical profession has long subscribed to a body of ethical statements developed primarily for the benefit of the patient. The oldest expression of this basic principle comes from Hippocrates, an early Greek Physician, born in 460 B.C. who came to be k nown as the "Father of Medicine" and had devoted his entire life to the advancement of medical science. He formulated a code of conduct in the form of the Hippocratic Oath, as he realized that knowledge and skill were not enough for a physician without a code of standards and ideals. He coined an oath of integrity for physicians, a code of standards and ideals to which they must swear to adhere in the practice of their profession.
This continues till date to be the oath administered to doctors when they join the profession:
" I swear by Apollo the physician, by AE sculapius , Hygeia, and Panacea, and I take to witness all the gods, all the goddesses, to keep according to my ability and my judgement, the following Oath.
To consider dear to me as my parents him who taught me this art; to live in common with him and if necessary to share my goods with him; to look upon his children as my own brothers, to teach them this art if they so desire without fee or written promise; to impart to my sons and the sons of the master who taught me and the disciples who have enrolled themselves and have agreed to the rules of the profession, but to these alone the precepts and the instruction. I will prescribe regimens for the good of my patients according to my ability and my judgement and never do harm to anyone. To please no one will I prescribe a deadly drug nor give advice which may cause his death. Nor will I give a woman a pessary to procure abortion. But I will preserve the purity of my life and my art. I will not cut for stone, even for patients in whom the disease is manifest; I will leave this operation to be performed by practitioners, specialists in this art. In every house where I come I will enter only for the good of my patients, keeping myself far from all intentional ill-doing and all seduction and especially from the pleasures of love with women or with men, be they free or slaves. All that may come to my knowledge in the exercise of my profession or in daily commerce with men, which ought not to be spread abroad, I will keep secret and will never reveal. If I keep this oath faithfully, may I enjoy my life and practice my art, respected by all men and in all times; but if I swerve from it or violate it, may the reverse be my lot."
36. Many versions of Hippocratic Oath are prevalent. "Light From Many Lamps" a book edited by Lilian Eichler Watson contains a little different phraseology of that oath but certainly a beautiful commentary on the significance of the Hippocratic Oath. We would like to reproduce the oath and the commen tary hereunder : (pages 181-182);
-26-" I do solemnly swear by that which I hold most sacred:
That I will be loyal to the profession of medicine and just and generous to its members;
That I will lead my life and practice my art in uprightness and honor;
That into whatsoever house I shall enter, it shall be for the good of the sick to the utmost of my power, I holding myself aloof from wrong, from corruption, and from the temptation of others to vice;
That I will exercise my art solely for the cure of my patients, and will give no drug, perform no operation for a criminal purpose, even if solicited, far less suggest it;
That whatsoever I shall see or hear of the lives of men which is not fitting to be spoken, I will keep inviolably secret.
These things I do promise, and in proportion as I am faithful to this my oath may happiness and good repute be ever mine - the o pposite if I shall be forsworn."
" The medical profession is and always has been one of the most ethical of all professions; and this is due at least in part to the centuries-old influence of the Hippocratic Oath. This famous Oath has kept alive the high standards and ideals set by Hippocrates, and forms the basis of modern medical ethics.
Written more than twenty centuries ago, the Hippocratic Oath has ins pired generations of doctors ... and continues to do so even now. The Oath is still administered by medical schools to graduating classes; and thousands of physicians have framed copies on their walls along with their diplomas. Conscientious practitioners continue to live up to the principles and ideals set down for their profession so long ago by the 'Father of Medicine'.
Though it was written specifically for physicians, the Hippocratic Oath sets an enduring pattern of honor, integrity, and devotion to duty for a ll people, in all professions. And certainly to surgeons ."
We have already discussed in the aforesaid paras that the deficiency in service or negligence in service cannot be alleged without attributing fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be performed by a person in pursuance of a contract or otherwise in relation to any service.
33. The Apex Court in clear terms in Nizam's Institute of Medical Sciences vs. Prasanth S. Dhananka & Ors. (2009) 6 SCC 1 held that once the initial burden of the complainant to prove his case involving medical negligence has been discharged by the complainant making out a case -27- of negligence on the part of the hospital or the doctor concerned, the onus then shifts on to the hospital or the attending doctors and it is for the hospital to satisfy the court that there was no lack of care or diligence. Para 77 of the SCC in Nizam's Institute' case (Supra) reads as follow :
"77. We are also cognizant of the fact that in a case involving medical negligence, once the initial burden has been discharged by the complainant by making out a case of negligence on the part of the hospital or the doctor concerned, the onus then shifts on to the hospital or to the attending doctors and it is for the hospital to satisfy the court that there was no lack of care or diligence."
34. In the present case, the complainant could make out a case of negligence on the part of the hospital and doctors. The complainant and patient party had given their consent to the follow up action/best possible action for saving the life of late S. Roger. It is also held by the Apex Court in Nizam's Institute' case (Supra) that the hospital and doctors or attending doctors have to satisfy the Court that there was no lack of care or diligence or medical negligence. The respondents had made an attempt by producing the document at Exhibit D/8/6 i.e. a part of the treatment sheet of the patient, S. Roger where in there is a noting that " need for Paricardiectomy already explained earlier ". Surprisingly, none of the attending Doctors came forward to depose before this Commission that the attending Doctors had already given the adequate information about the ailment and best possible treatment to the patient, S. Roger, the complainant and the patient party. Just after the said noting in the treatment sheet at Exhibit D/8/6 there is an initial but none of the defence witness had deposed before this Commission that the initials appearing in the said treatment sheet is the initial of one of the attending Doctors. However, in the naked eye it is clearly seen that the said noting is of different ink and different handwriting. In the given case, this Commission is of the considered view that there were failures on the part of the attending Doctors headed by the respondent No. 3, Dr. M. Kullachandra Singh to give adequate information about the illness, disease and best possible treatment of S. Roger to the complainant.
35. We have already discussed in threadbare that the meaning of negligence in the aforesaid paras. Omission to do something which a reasonable man would do is also a medical negligence, and also breach of duty of the doctors towards the patient is also medical negligence. In the present case, over and above the failure on the part of the attending doctors of the patient S. Roger to give adequate information discussed above to the complainant, patient party and patient, the respondent No. 3, Dr. M. Kullachandra Singh who was head of the attending doctors did not even refer the patient S. Roger who needed early Paricardiectomy to the Thoracic Surgeon of the hospital who would conduct the Paricardiectomy operation of the patient S. Roger. It is the admitted case of the parties that the Thoracic Surgeon was available in the RIMS hospital and also the complainant had given the authorisation for operation etc.. Therefore, we are of the considered view that the Respondent No. 3, Dr. M. Kullachandra Singh is responsible for medical negligence to S. Roger. As a result of this medical negligence, S. Roger had been hasten to death.
36. On careful appreciation of the statement of DWs, P.W.s and documents exhibited by the respondent No. 4 and other respondents, we are of the considered view that the Respondent No. 4 had utterly failed to discharge her onus. There was lack of care or due diligence and failure to discharge her duty to the patient and failure to maintain the code of conduct under Hippocratic Oath of the doctors to the patient Mr. S. Roger. We have already discussed the medical etiquette and ethics of duty towards the patient in the aforesaid paras, more particularly under the Regulation, 2002. It is the duty of the doctors that when a patient is suffering from an ailment -28- which is not within the range of the treating doctors, the doctor may refer the patient to another doctor . In the case in hand, the attending doctors of S. Roger, doctors of Unit No.1 MMW headed by the Respondent No. 3, Dr. M. Kullachandra Singh treated the patient S. Roger by prescribing the different medicines. The patient was referred to the ICCU in a very critical condition. The respondent No. 4 had clearly deposed as D.W. No. 4 in the cross-examination that " it is true that I was not well aware of the nature of ailment of S. Roger also its treatment as I was only a Postgraduate student at the relevant time ".
37. The Respondent No. 4 also filed her written argument, in that she clearly mentioned that "There are 7 critical patients during that period and the Respondent No. 4 duty was to attend all the patients in the ICCU and it is a procedure that in case of emergency, she has to inform the senior resident (S.R.) of the unit who in turn report the case to the treating doctors ."
As such, it is the case of the Respondent No. 4 in her written argument that in case of emergency, she had to inform the senior resident (S.R.) of the unit who in turn report the case to the treating doctors. She also further stated as D.W. No. 4 that "on 31.12.2009, I was assigned emergency duty at ICCU RIMS from 8:00 p.m. of 31.12.2009 to 8:00 a.m. of 01.01.2010 along with 2 (two) Nurses and one attendant.
38. From her statement and the documents exhibited, it is clear that she had to inform the senior resident (S.R.) of the unit who in turn report the case to the treating doctors/attending doctors in case of emergency. But even when, S. Roger was in a very critical condition she did not even take the advice of the attending doctors nor she informed the senior resident (S.R.) of the unit. It is also clear from her statement that she was not well aware of the nature of the ailment of S. Roger and its treatment. Even then, she did not take the advice of the treating doctors. It is also clear from the record that she had not attended the patient S. Roger lying at the dying bed at the last stage in the ICCU at 2.15 a.m. of 01.01.2010. As per the records produced by the respondents, even if it is accepted, Dr. Geeta, Respondent No. 4 had attended the patient S. Roger at 1.30 am of 01.01.2010 at the last and no doctors and nurses attended the patient S. Roger just before his last breadth at 2:30 am of 01.01.2010. But just after 2.30 am of 01.01.2010, the Respondent No. 4, after she was informed that S. Roger was no more breathing, had tried CPR (Cardio Pulmonary Resuscitation) to S. Roger for revival. Thus, respondent No. 4, Dr. Geeta Thiyam is also responsible for the medical negligence .
39. In the result, both the respondent Nos. 3 and 4 are responsible for the medical negligence. It is a well settled law that hospital is vicariously liable for its Doctors. State would also be vicariously liable on account of negligence of its doctors and other employee. (reference - V. Krishnakumar's case (supra), Sabita Garg's case (supra), Balram Prasad's case (supra) and Achutrao Haribhau's case (supra) ). It is no longer res integra that doctors, hospital and nursing home and other connection establishment are to be dealt strictly if they are found to be negligent with the patient. The patients irrespective of their social, cultural and economic background are entitled to be treated with dignity which not only forms their fundamental rights but also their human rights. Therefore, the decision of the Commission/court would act as a deterrent and reminder to those doctors, hospitals, nursing homes other connected establishment who did not take their responsibility seriously . Para 184 of SCC in Balram Prasad v. Kunal Saha (Gowda,J.) (2014)1 SCC 477 reads as follows:
-29-" 184. The doctors, hospitals, the nursing homes and other connected establishments are to be dealt with strictly if they are found to be negligent with the patients who come to them pawning all their money with the hope to live a better life with dignity. The patients irrespective of their social, cultural and economic background are entitled to be treated with dignity which not only forms their fundamental right but also their human right. We, therefore, hope and trust that this decision acts as a deterrent and a reminder to those doctors, hospitals, the nursing homes and other connected establishments who do not take their responsibility seriously ".
COMPENSATION
40. The Apex Court in State of Haryana & Anr vs. Jasbir Kaur & Ors. (2003) 7 SCC 484 held that there can be no golden rule applicable to all cases for measuring the value of human life or a limb. Measure of damages cannot be arrived at by precise mathematical calculations. Every method or mode adopted for assessing compensation has to be considered in the background of "just" compensation which is the pivotal consideration and requires judicious approach. The expression "just" denotes equitability, fairness, reasonableness and non-arbitrariness . There are two types of damages viz. Pecuniary Damages (Special damages) and Non-pecuniary Damages (General Damages) (ref.: Raj Kumar vs. Ajay Kumar & Ors. (2011) 1 SCC 343 ). In the present case, what would be the "just" compensation in the light of the decision of the Apex Court in State of Haryana & Anr vs. Jasbir Kaur & Ors. (2003) 7 SCC 484, is the compensation which is equitable, fair, reasonable and non-arbitrary.
41. The Apex Court in Balram Pradad vs. Kunal Saha & Ors (2014) 1 SCC 384 held that "177. Under the heading of loss due to pain and suffering and loss of amenities of the wife of the claimant, Kemp and Kemp write as under:
"The award to the plaintiff of damages under the head 'pain and suffering' depends as Lord Scarman said in Lim Poh Choo v. Camden and Islington Area Health Authority (1980 AC 174 : (1979) 3 WLR 44 : (1979) 2 All ER 910 (HL) , upon the claimant's personal awareness of pain, her capacity of suffering. Accordingly, no award is appropriate if an insofar as the claimant has not suffered and is not likely to suffer pain, and has not endured and is not likely to endure suffering, for example, because he was rendered immediately and permanently unconscious in the accident. By contrast, an award of damages in respect of loss of amenities is appropriate whenever there is in fact such a loss regardless of the claimant's awareness of the loss."
Further, it is written that :
" Even though the claimant may die for his injuries shortly after the accident, the evidence may justify an award under this head. Shock should -30- also be taken account of as an ingredient of pain and suffering and the claimant's particular circumstances may well be highly relevant to the extent of her suffering .
By considering the nature of amenities lost and injury and pain in the particular case, the court must assess the effect upon the particular claimant. In deciding the appropriate award of damages, an important consideration is how long he be deprived of those amenities and how long the pain and suffering has been and will be endured. If it is for the rest of his life the court will need to take into account in assessing damages the claimant's age and his expectation in life . That applies as much in the case of an unconscious plaintiff as in the case of one sentient, at least as regards the loss of amenity."
178. The extract from Malay Kumar Ganguly case (2009) 9 SCC 221 reads as under: (SCC p. 232, paras 3-4) "3. Despite administration of the said injection twice daily, Anuradha's condition deteriorated rapidly from bad to worse over the next few days. Accordingly, she was admitted at Advanced Medicare Research Institute (AMRI) in the morning of 11-5-1998 under Dr. Mukherjee's supervision. Anuradha was also examined by Dr Baidyanath Haldar, Respondent 2 herein. Dr Haldar found that she had been suffering from erythema plus blisters. Her condition, however, continued to deteriorate further. Dr Abani Roy Choudhury, Consultant, Respondent 3 was also consulted on 12-5-1998.
4. On or about 17-5-1998 Anuradha was shifted to Breach Candy Hospital, Mumbai as her condition further deteriorated severely. She breathed her last on 28-5-1998."
The above -extracted portion from the above judgment would show that the deceased had undergone the ordeal of pain for 18 long days before she breathed her last. In this course of the period, she has suffered with immense pain and suffering and undergone mental agony because of the negligence of the appellant doctors and the Hospital which has been proved by the claimant and needs no reiteration .
179. Further, in Nizam's Institute (2009) 6 SCC 1 : (2009) 2 SCC (Civ) 688), the claimant who was also the surviving victim of a motor vehicle accident was awarded Rs 10 lakhs for pain and suffering. Further, it was held in R.D. Hattangadi case ((1995) 1 SCC 551 : 1995 SCC (cri) 250) as follows : (SCC p. 557, para 14) "14. In Halsbury's Laws of England, 4 th Edn., Vol. 12 regarding non-pecuniary loss at pp. 446-47 it has been said :
1147. Non-pecuniary loss : the pattern. - Damages awarded for pain and suffering and loss for amenity constitute a conventional sum which is taken to -31- be the sum which society deems fair, fairness being interpreted by the courts in the light of previous decisions. Thus there has been evolved a set of conventional principles providing a provisional guide to the comparative severity of different injuries, and indicating a bracket of damages into which a particular injury will currently fall. The particular circumstances of the plaintiff, including his age and any unusual deprivation he may suffer, is reflected in the actual amount of the award.'"
42. From the ratio decidendi of the cases discussed above regarding the compensation, it is clear that there is no golden rule applicable to all the cases for measuring the value of human life or a limb. Measure of damages cannot be arrived at by precise mathematical calculations. Every method or mode adopted for assessing compensation has to be considered in the background of "just" compensation which is the pivotal consideration and requires judicious approach. The expression "just" denotes equitability, fairness, reasonableness and non-arbitrariness. Keeping in view of the ratio decidendi of the cases discussed above, we have considered minutely the respective case of the parties as well as medical negligence of the doctors and also the vicarious liability of the hospital. For the sake of repetition, we reiterate that the State or Union of India are vicariously liable on account of the negligence of its doctors and other employee. In the given case we are of the considered view that "just" compensation in the present case would be Rs. 6,00,000/- (Rupees Six lakhs) only and cost of litigation would be Rs.15,000/- (Rupees Fifteen thousand) only, in total Rs. 6,15,000/- (Rupees Six lakhs Fifteen thousand) only .
43. Therefore, a total sum of Rs. 6,15,000/- (Rupees Six lakhs Fifteen thousand) only is the compensation awarded to the complainant. The respondent Nos. 1, 3 & 4 are jointly and severally liable to pay the compensation within a period of 4 months with the passing of this judgment and order. It is also made clear that the Respondent No.1 is permitted to recover Rs. 1,00,000/- (Rupees One lakh) only from the Respondent No. 3 and Rs. 2,00,000/- (Rupees two lakhs) from the Respondent No. 4 , out of the total amount of compensation i.e. Rs. 6,15,000/- (Rupees Six lakhs Fifteen thousand) only. In case of failure to deposit the said amount within the period indicated above, there shall be 6% interest per annum from the date of expiry of the period of depositing the amount. The said amount of compensation shall be deposited in the Registry of this Commission. Registry shall release the said amount of compensation to the complainant on being identified by a counsel known to this Commission.
44. The present Complaint is allowed to the extent indicated above.
[ After the present complaint was kept for judgment and order, the Hon'ble Judicial Member, Mr. M. Padmeswor Singh retired on attaining the age of 67 (sixty-seven) years on 28.02.2018 and accordingly the present judgment and order is duly signed and pronounced by the two Members. However, the Judicial Member had already perused the judgment and order in the draft form before his retirement and consented to it.] -32- [HON'BLE MR. JUSTICE T.Nandakumar] PRESIDENT [HON'BLE MR. M.Padmeshwor Singh] JUDICIAL MEMBER [HON'BLE MRS. A.Nibedita Devi] MEMBER -33-