National Consumer Disputes Redressal
Vinod Prasad Nautiyal vs Smt. Savitri Uniyal & Ors. on 20 May, 2011
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 79 OF 2005 (Against the order dated 8.2.2005 in Appeal No.07/2002 of the State Commission, ) Vinod Prasad Nautiyal S/o Shri Goverdhan Prasad Nautiyal R/o Uma Niwas Power House Mohalla, Pauri Garhwal, U.A. At present Goverdhan Niwas I-107, Nehru Colony .Appellant Versus Smt/ Savitri Uniyal wife of Shri S.D. Uniyal Prasooti Chikitsak At present Distt. Government Hospital Rishikesh, Distt. Dehradun Previsously Disttt. Hospital, Pauri, Pauri Garhwal. 2. Shri S.D. Uniyal son of Shri Vasudev Uniyal Distt. Eye Hospital, Puari, Pauri Garhwal at present Govt. Hospital Rishikesh, Distt. Dehradun 3. Dr. Hashim Raza Jaidi, Physician, Distt. Hospital Pauri at present Distt. Hospital Muzaffarnagar- U.P. 4. Joint Director, Health and Family Welfare Garhwal Region, Pauri Garhwal 5. Secretary of Health, Govt. of Uttranchal, Dehradun. 6. Chief Medical Superintendent, Distt. Hospital Pauri, Pauri Garhwal U.A. .........Respondents FIRST APPEAL NO. 129 OF 2005 (Against the order dated 8.2.2005 in Appeal No.07/2002 of the State Commission, ) State of Uttaranchal Through Chief Medical Superientendent Distt. Femalre Hospital Pauri Garhwal (Uttaranchal) 2. Dr. Smt. Savitri Uniyal W/o Dr. S.D. Uniyal Distt. Tehri Garhwal (Uttaranchal) 3. Dr. S.D. Uniyal S/o Shri Vasudev Uniyal Suman District Hospital Narender Nagar Distt. Tehri Garhwal (Uttarnachal) Appellants Versus Vinod Prasad Nautiyal S/o Shri Goverdhan Prasad Nautiyal R/o Power House Mohalla Pauri Garhwal (Uttaranchal) ..Respondent BEFORE: HON'BLE MR. JUSTICE V.R. KINGAONKAR, PRESIDING MEMBER HONBLE MR. VINAY KUMAR, MEMBER For the Appellant : Mr. V.Madhukar Aag , Advocate Mr. J.K. Bhatia, Advocate Mr. K.P. Dubey, Advocate (In FA No.79/2005 & Respondent in FA No.129 of 2005) For the Respondent : Ms. Debaleena Kalikdah, Advocate for Mrs. Babita Yadav, Advocate (In FA No.79/2005 & Appellant in FA No.129 of 2005) PRONOUNCED ON: 20-5-2011 ORDER
PER MR.VINAY KUMAR, MEMBER Appeal No.79 of 2005 is filed by Shri Vinod Prasad Nautiyal who was the Complainant before the Uttranchal State Consumer Disputes Redressal Commission, in CC No.07 of 2002. It is filed against Dr. Savitri Uniyal and five others, who were all opposite parties before the State Commission. The appellant/complaint has prayed for enhancement for the compensation from Rs.2.5 lacs to Rs.12 lacs.
First Appeal No.129 of 2005 is against the same order of the State Commission and is filed by State of Uttranchal, Dr. Savitri Uniyal and Dr. Vasudev Uniyal, who were OPs in the proceedings before the State Commission.
The prayer of the appellant is to set aside the order awarding compensation of Rs.2.5 lacs in favour of the Complainant. These two cross appeals, arising from the same order of the State Commission, are taken up together for disposal.
2. The case of the Complainant Shri V.P. Nautiyal before the State Commission was that in January, 1993 his wife was medically advised that she was two months pregnant.
Thereafter, she was seen by OP-1 during May and June, 1993 and was admitted into the Hospital as her condition was explained to be serious, on 28.06.1993. Next day, at about 4.30 AM she delivered a baby boy through an operation. At about 5.30 AM she was shifted to the female hospital. The Complainant has alleged that non-availability of the oxygen cylinder and blood to be given to his wife, were instances of deficiency in service, which caused her death in the morning of about 7.15 AM.
3. In his complainant alleging medical negligence, the Complaint took up the issue that for this operation, his wife was administered anesthesia by OP-2, who was not a qualified anesthetist, but an ophthalmologist. After the operation, the patient had a lot of bleeding but was not given any blood transfusion. According to Complainant, after the operation, his wife was made to walk to the womens hospital. Thus, his case was that she died due to lack of care after the operation.
4. According to the OPs the deceased was already having pre-delivery bleeding on 28.6.1993 and was brought to the hospital in a critical state. Her condition compelled the doctor to resort to emergency operation. The operation was successful and a healthy baby was delivered after which the patient was shifted to the female hospital.
5. The State Commission has questioned the claim of the OPs that when wife of the complainant was brought on 28.6.1993 she was advised to go to Dehradun to a better equipped hospital, as the case was serious and complicated. The Commission has observed that there is nothing on record in writing, that the complainant was ever advised to take his wife to a better equipped hospital or ever told that the facilities in the hospital were not adequate to conduct the kind of operation required. The conclusion of the State Commission is that, this being a case of placenta previa with bladder invasion, it was potentially a life threatening condition. There is nothing on record to show that this fact was shared with the Complainant. In a case like this, the OP Nos.1 should not have conducted the operation, particularly when in her opinion, the case needed to be handled by a better equipped hospital.
6. The State Commission has also rejected the explanation justifying administration of anesthesia by a doctor (in this case an ophthalmologist), who was not a qualified anesthetist and held it to be an instance of gross negligence on the part of the OPs. As the appellant/opposite party knew that it was a complicated case, they should not have started the operation particularly when there was no qualified anesthetist and no blood for being given to the patient. They should have been referred the case to the nearby better equipped hospital at Srinagar.
7. The State Commission has also held the Government and the concerned authorities responsible for the state of affairs in the hospital, which was clearly lacking in necessary facilities. It is also observed that in the circumstances of this case, it was proper for the authorities to get a postmortem done to ascertain the cause of death, but this was not done.
8. At one stage during the course of this appeal, the Commission was informed that there was a possibility of an amicable settlement. But, on 19.11.2010 the Commission was informed the Complainant was not willing to settle the matter amicably. Thereafter, arguments of the two counsels were heard on merits with reference to the records of this case.
9. In the appeal before us, the main ground urged is that the patient was brought late at night at about 1.05 on 29.6.1993 in a grave condition and heart beat of the fetus could not be clearly heard. It became necessary to perform the surgery urgently. It was performed by the appellant /OP-1, who is a qualified gynecologist. It is argued that the patient did not suffer from any anesthesia related problem in the surgery, in spite of the fact that it was given by a non-anesthetist. However, no explanation has been offered as to why the surgery was performed without ensuring availability of blood, as observed by the State Commission.
10. The appellant has also emphasized that the hospital, where this incident had occurred in 1993, was located in remote hill district Pauri and the hospital itself was not well equipped. According to the appellant, no post-mortem was conducted, as no foul play was suspected. During the course of arguments, the counsel for the appellant drew our attention to the magisterial inquiry, which was conducted in this case by the Pargana Magistrate, Pauri.
In his report, dated 30.11.1993 the Magistrate has concluded that the death of the wife of the Complainant was untimely and unfortunate but, there was no reason to feel that it was caused by negligence of the doctors. The Magistrate has however, observed that the District Hospital should have the following facilities --
a) Arrangement to keep the patient close to the place where the surgery is performed.
b) The facility of blood bank should be available.
c) Staff for performing surgery during night should be available to the hospital and the hospital should be provided a separate anesthetist.
11. Thus, while apparently not holding the concerned doctors responsible for negligence the report of the Magistrate does clearly highlight the non-availability of the infrastructure in the hospital. This report of the magisterial inquiry, viewed in its true prospective, lends support to the finding reached by the State Commission to the extent that it is a case of vicarious responsibility of the State government.
12. In so far as OPs 1 and 2 are concerned, we do not agree with the argument of their counsel that reasonable care, expected under the circumstances was taken. It was also argued by the counsel that the deceased had a history of complicated pregnancies. In that background, there would have been greater need for care than otherwise. Yet, the operation was performed with no arrangement of a qualified anesthetist. The State Commission has observed that on 3.5.1993, when the patient was seen by OP 1, she had complained of bleeding. Yet, the operation was performed without any arrangement of blood. We agree with the State Commission that no expert opinion is required to establish that they constitute acts of professional negligence.
13. In the above background, we dismiss FA No.129 of 2005 as devoid of any merit and partly allow FA No. 79 of 2005 by enhancing the amount of compensation by Rs.100,000/- to be paid jointly by OPs 1 and 2. This shall be in addition to the compensation awarded by the State Commission. Both shall be paid within a period of three months. Any delay in such payment shall carry an interest at 9%.
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(V.R. KINGAONKAR, J.) PRESIDING MEMBER ..
(VINAY KUMAR) MEMBER S/-