State Consumer Disputes Redressal Commission
Selvi G. Anukasree Gowda vs Mathrushree Multi Specialty Hospital & ... on 1 April, 2022
1 CC-No.64/2011
Date of Filing :06.04.2011
Date of Disposal :01.04.2022
BEFORE THE KARNATAKA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION, BENGALURU (PRINCIPAL BENCH)
DATED THIS THE 01st DAY OF APRIL-2022
PRESENT
HON'BLE Mr. JUSTICE HULUVADI G RAMESH : PRESIDENT
Mr. K.B.SANGANNANAVAR : JUDICIAL MEMBER
MrsM.DIVYASHREE : LADY MEMBER
CC-NO.64/2011
1. Selvi.G.Anukasree Gowda,
Since deceased represented
By her LRs.
1a) Sri. H.Gangaraju,
S/o late Huchaiah,
Aged about 47 years,
1b) Smt. Rukmini.H.M,
W/o Sri.H.Gangaraju,
Aged about 42 Years,
Both R/at Ramadevanahalli,
Kannamangala Post,
Doddaballapur Taluk,
Madhura Hobli,
Bangalore Rural District.
..Complainant
(By Sri/Smt.M.C.Ravi Kumar, Advocate)
-Versus-
1. Mathrushree Multi-Speciality
Hospital, No.6930, S.No.198,
NH-4, Sondekoppa, Bye-Pass,
Nelamangala, Rep/by Dr.Mahesh
Gandhi.
2 CC-No.64/2011
2. Dr. Mahesh Gandhi,
S/o K.C.Siddramegowda,
Aged about 50 years,
Mathrushree Multi Specialty
Hospital, No.6930, S.No.198,
NH-4, Sondekoppa, Bye-Pass,
Nelamangala.
3. H.J.Bhanumathi,
W/o Dr.Mahesh Gandhi,
Aged about 40 Years,
Mathrushree Multi Specialty
Hospital, No.6930, S.No.198,
NH-4, Sondekoppa, Bye-Pass,
Nelamangala.
4. Dr.Vijay Kumar,
Fathers name not known,
Hindu, Major,
Mathrushree Multi Specialty
Hospital, No.6930, S.No.198,
NH-4, Sondekoppa, Bye-Pass,
Nelamangala.
5. Sri. Vasantha,
Administrator,
Aged about 35 Years,
R/at No.19, Mathru Nilaya,
2nd floor, 2nd Cross,
Opposite Old Check Post,
Near R.R.Hospital,
T.Dharashalli,
Bangalore-560 057.
6. National Ins. Co. Ltd.,
Branch Office No.2,
No.20/2, 1st floor,
Opposite Indian Overseas
Bank, 1st Main, Gandhinagar,
Bengaluru-560 009,
Bengaluru.
..Opposite Parties
3 CC-No.64/2011
(OP-1 to 4 By Sri/Smt.T.Mohan, OP5 by S.P.Sathisha
and OP6 by Sri/Smt. Bengaluru C.Seetharama Rao,
Advocates)
ORDER
Mr. K.B.SANGANNANAVAR : JUDICIAL MEMBER
1. This is a complaint filed u/s 12 of Consumer Protection Act, 1986, to hold OPs jointly and severally liable for deficiency of service committed by them, in initially treating the deceased first complainant, resulting in making her virtually dead and clinically alive and do pay Rs.49,00,000/- and grant such other reliefs as Commission deems fit in the circumstances of the case.
2. The brief facts of the case of complainant are stated below:
Initially the complaint is filed by a minor Girl Child represented by her Father on 06.04.2011 and as the said child during pendency of the complaint died on 17.10.2016, as such her parents are brought on record as her LRs 1-a and 1-b, since the right to survives.
3. Deceased first complainant is the Daughter of 1a and 1b and she was hale and healthy, was studying in second class. She was born on 20.05.2003 and on 26.08.2010 around 2.30 pm 4 CC-No.64/2011 had symptoms of vomiting and head ache, for which her Mother took the said child to OP-1-hospital for consultancy and treatment, if needed. OP-1-hospital proclaims to be a multi- speciality hospital is run by O.P.No.2 and 3 of whom O.P.No.2 is the main Doctor treating the patients. On the eventful day viz., on 26.08.2010 as O.P.No.2 and 3 were absent and the in-charge person proclaimed to be the Doctor, the fourth O.P Dr.VijayKumar, was present to whom told about symptoms of child and he without making any further diagnosis and even without obtaining history of the patient, administered two injections, without informing her Mother as to what the injections were and the purpose and object with which that it is intended to be administered. O.P.No.4 even did not make any enquiry into the history of the patient, the symptoms of vomiting and head ache. He made no enquiry as to what food the child had in the morning or on the previous night, no enquiry was made with her Mother or with the patient child, administered two injections. He did not call her Mother to bring any disposable syringe or to procure any medicine from medical shop by giving any written prescription. No sooner the injections were administered, the child slipped into coma and 5 CC-No.64/2011 lost her consciousness, and as a result O.P.No.4 became panic not knowing what to do and immediately referred her to Harsha Hospital, calling for a report by having blood examination of the child. After the child had slipped into coma, he requested Pathologist to have the child examine in respect of her blood count. There was no development in the condition of the first complainant and since fourth O.P did not know what to do, expressed his helplessness and advised the Mother of the first complainant to take the child to a better hospital in Bangalore for necessary treatment. Accordingly, she was brought by her Father to Fortis Hospital Bannerghatta Road, Bangalore on 26.08.2010 at 9.56 pm at Paediatric Unit. The Fortis Hospital could not bring the child to the normal stage, though vital organs of the child remained normal the coma stage could not be resuscitate. The veins and arteries were discharging the functions normally. The valve conditions, the ventricles, coronaries, hyper dynamic conditions were normal. These are the observation of the Fortis Hospital; however it needs to be stated that the cause of child slipping into coma stage is the result of sudden stoppage of oxygenated blood to the Brain. The velocity analysis and inflow of hemodynamic was also normal. 6 CC-No.64/2011 The patient could breath in normal condition though could not do efficiently and she was not responding to any treatment and she could not regain her sense after having slipped into coma, as the required oxygen intake to the brain become so deficient and that the cells in the brain got damaged. The child was shifted to B.G.S Hospital on 02.09.2010 and she was put under Paediatric Intensive Care under reference of Dr.R.Raghunath. She was put under ventilator with unequal pupils for which, the M.R.I Brain scan was done, which indicated formation of ischemic damages in the brain and the child was on ventilator for 12 days, yet did not show any improvement and on the 10th day, the post exudation GCS-9-10 tongue bite was sutured, physiotherapy and nutrition support was given and the parents of the child were explained as to how the treatment need to be made. The impression gathered by the B.G.S Hospital was gross cerebral atrophy with hyper intense signal changes in bilateral parietal lobe with neurodegenerative disease. She was treated from 02.09.2010 to 10.11.2010 being that date of discharge, at B.G.S Hospital, as there was no hospital where nursing care could be administered to the patient in coma stage. Second O.P did not reveal as to what was the injection 7 CC-No.64/2011 that was administered by O.P.No.4. The fourth O.P is not a qualified Doctor to administer any medicines and to treat any patient and that he possessed some Diploma/Degree, even the details of O.P.No.4 was not given. All these resulted in great tension to the second complainant and the second complainant being in Government Service in Police Department was at a loss to treat his daughter with necessary medicine. A Police case came to be filed against OPs before the jurisdictional police and FIR came to be filed. There is a serious lack of professional discharge of duty on the part of OP-1-hospital, more particularly, the fourth OP, who without any knowledge of medicine, has administered the injections not visualizing the consequences thereof and the purpose and the object for which the injections were administered. There is permanent damage caused to the brain of the child, which is not possible to be rectified. It is not known to parents as to what lies in future of the child, the child are virtually dead except to brand clinically alive. By the time they approached Fortis Hospital and B.G.S Hospital, the permanent damage was already done by virtue of the injections that were administered by the fourth O.P. 8 CC-No.64/2011
4. Any amount of money cannot compensate the loss of a Girl Child and also cannot compensate the agony and mental trauma what her parents undergone all these years. Initially they have sought for compensation of Rs.49,00,000/- consisting of medical expenditure of child, mental agony and trauma due to the abnormal condition of child and for loss of future prospects at Rs.21,00,000/- and as the child died on 17.10.2016 sought for global compensation of Rs.30,00,000/- for the death of child and sought compensation as prayed in the complaint at the time of filing of the complaint.
5. O.P.No.1 to 6 have contested the case, of whom O.P.No.1 is a hospital represented by Dr. Mahesh Gandhi, O.P.No.2 and 3 are proprietors of O.P.No.1, O.P.No.4 alleged to have administered the injections to the said child in OP-1-hospital, O.P.No.5 was an administrator and O.P.No.6 is insurer of O.P.No.1-Hospital. They denied the alleged allegations of deficiency of service on their part and would submit that, on 26.08.2010 around 2.30 pm, child along with her parents came to the hospital with history of vomiting, head ache and fever, by time O.P.No.3 Dr.H.J.Bhanumathi and O.P.No.4 Dr.Vijay Kumar were attended the child and had taken the history of patient from 9 CC-No.64/2011 parents and they intimated to O.P.No.2. O.P.No.2 and 3 earlier known to this patient by hearing the history of patient and her symptoms, they came to the conclusion that, already several times she seizure due to epilepsy and at that time seizure vomiting, head ache and fever were come. In usual terms these factors will cause seizure if the medicine administer to reduce the fever and to stop the vomiting the seizure could have come to control. In this case, O.P.No.2 instructed O.P.No.3 to administer the injection Dyclofinac and emeses. On instruction of the same, O.P.No.3 has told O.P.No.4 to give the prescriptions to attendant who was present at that time to bring medicine. When O.P.No.3 was given Nebulization to free the breathing, O.P.No.4 was administered the same injections. After that the attendant of the patient taken the patient outside the hospital against the medical advise on the ground that they have to take treatment somewhere and have gone outside the hospital. After lapse of 10-15 minutes, the parents of the child brought her inside the hospital, once again by complaining that patient had fell down and got seizure and stoppage of breathing and unconscious. Immediately, O.P.No.3 along with their assistant rushed to the casualty and started treatment towards heart 10 CC-No.64/2011 recycling, seizure, breathing by giving adrenal and atropine and intubation, thereafter the patient began breathing and heart has started functioning, seizure has relaxed, patient was referred to CT Scan and blood counts and for further treatment at super specialty hospital along with referral letter. The patient was earlier suffered several time of the same symptom, the O.P.No2 and 3 have given treatment in their clinic and in the O.P.No.1 hospital several times they have got treated the patient and provided best medical treatment and have done the same with an intention to cure the decease and have saved life of the patient and the same has to be revealed through documents and to the knowledge of O.P.No.2 and 3 even patient had complaint of seizure due to epilepsy from her child hood when she was six months old and got admitted to the St.John Hospital, and have continued the treatment, whenever she seizure, she had admitted to the hospital and obtained treatment. The complainants themselves have told number of occasions the child suffered seizure on earlier occasion and got treatment in different hospitals, clinic also. When such being the case, all other contra allegations against the Doctors are far from truth. The Ops have provided best treatment with good 11 CC-No.64/2011 intention in all these years. There was no complaint against medical services and their conduct and this is first time, who have acted for monetary gain for on false allegations, who have had a faith with the O.P, now simply making reckless allegations, without any reasons. The patient was treated in OP-1-Hospital from 11.11.2010 to 13.12.2010 for that OP requested parents for payment of treatment charges and the complainants have paid sum of Rs.15,000/- by quarrelling with OP-1-hospital and got discharged from the hospital, assuring and promising to pay the balance amount within few days, instead of making payment has lodged a false complaint against the hospital and its Doctors. The complainants have not made any allegations till re-admission of the patient with regard to their services and they have faith and trusted them as soon as requested for payment of nursing charges, all of a sudden have find fault by showing their finger towards the services. They have submitted some medical literature with regard to the Epilepsy seizure advance research and would submit that, OP- 1-hospital insured with O.P.No.6 for the period from 26.06.2010 to 25.06.2011. There is no cause of action for filing the 12 CC-No.64/2011 complaint and alleged cause of action is utter false and a story invented only for the purpose of this case.
6. O.P.No.5 submits that, he was only a receptionist at the relevant time and he is nothing to do with the treatment of child, while O.P.No.6 has adopted the version of O.P.No.1 to 4. O.P.No.6 admits issuance of policy in the name of O.P.No.1 for the period from 26.06.2010 to 25.06.2011.
7. In view of the rival contentions of the respective parties, Commission held an enquiry of parties to the complaint. In this regard father of deceased girl child examined himself as first witness submitting affidavit evidence and additional evidence and examined Dr.Sridhar.H.T and Dr.Vaikuntharaj.K.N, through them Ex.C1 to C-13 got marked, while Dr.Vaikuntharaj.K.N replied to the interrogatories submitted by Ops which become part and parcel of the enquiry file. On the contrary, on behalf of O.P.No.1 to 5, O.P.No.2 and 3 have submitted their affidavit evidence and O.P.No.6 has produced copy of the policy issued in the name of O.P.No.1 for the period from 26.06.2011 to 25.06.2012 and after closure of enquiry, Commission, heard learned counsels on record for the parties to 13 CC-No.64/2011 the complaint and on examination of the materials placed on record now the following points arise for consideration:
1) Whether complainants proved that, Selvi.G.Anukasree Gowda, a girl child aged about 08 years, daughter of complainants-1a and 1b was treated in OP-1-hospital on 26.08.2010?
2) Do they prove the alleged deficiency of service as alleged, resulting her death on 17.10.2016?
3) Do they entitle for compensation as prayed for and if so, how much they are entitle and who are liable to pay such compensation to be awarded by this Commission?
8. Let us examine all the points formulated by the Commission together to avoid repetition of certain facts. It is an undisputed fact that, the girl child being daughter of complainants was brought by her Mother to the OP1-hospital on 26.08.2010 around 2.30 pm with a history of vomiting and head ache and must have treated by O.P.No.4 Dr.Vijay Kumar, as instructed by O.P.No.2 and 3. O.P.No.2 and 3 are husband and wife and they are the Proprietor of O.P.No.1-Hospital, while O.P.No.4 was employed by them and O.P.No.5 was an administrator/ receptionist. It has come in the enquiry that, O.P.No.5 Mr.Vasanth himself has stated that at the relevant time, he was 14 CC-No.64/2011 working in the hospital of O.P.No.1 as a receptionist, which of course not important for the purpose of deciding on the alleged negligence on the part of Hospital.
9. It is found from the enquiry from the evidence of complainants that O.P.No.2 and 3 were absent when the child was brought to Hospital for treatment, while O.P.No.4 proclaimed himself as a Doctor, got instructions from O.P.No.2 and 3, administered two injections, resulting thereby child slipped into coma and lost her consciousness.
10. It has come in the enquiry that after she slipped into coma, till her last breathe on 17.10.2016, she never gained consciousness and in the meantime was treated in B.G.S, Fortis and Jaynagara Hospitals, Harsha Hospital all situate in Bengaluru City and was again brought back to O.P.No.1- hospital for follow up treatment. She was admitted on 26.08.2010 treated as an inpatient in various hospitals, was slipped into coma on 26.08.2010 only after administering injections in OP.No.1-hospital by O.P.No.4 and she died on 17.10.2016. Thus, it could be said child patient was alive for six years, one month and 22 days. The sufferance of her parents 15 CC-No.64/2011 during such long period could not be explained at all, in terms of words. The complainants alleged against O.P.No.1 to 4, in particular O.P.No.2 to 4, as to their deficiency, while they have categorically denied their deficiency of service in treating the child, on the ground that she was earlier treated by them in their hospital for similar such history and in this regard, they would submit that, complainants have trusted their hospital as well as Ops and they have informed that when the child was six years old, at that time only episode of seizure was attacked, later it was found at the age of one and half years old and again it was repeated when she was 3 years. Likewise, it was continued seizure often and often and was continuously taken treatment from different hospitals from time to time and also taken treatment in their hospital as outpatient. She was treated with continued nursing care with great care and observation by the expert Doctors as well as the professional nurses from 11.11.2010 to 13.11.2010. It is their specific stand that the child slipped into coma, not because of administering injections by O.P.No.4, but as was suffered seizure on earlier occasion and to find support submitted some medical text/medical literature authored by Shahin Nouri, MD, Chief Editor, 16 CC-No.64/2011 Selim.R.Benbadis, MD in respect of sudden unexpected death in Epilepsy for short Sudep is defined, wherein the author is of the view as follows:
"Epilepsy and the autonomic nervous system (Author Shahin Nouri, M.D, Chief Editor. Selin R Benbadis M.D., Uptaded 24.05.2011) Overview: The interaction between seizure and autonomic nerves system is very complex abnormal neuronal electrical activity corresponding to a seizure; can involve central centers for the regulation of autonomic activity. A seizure can present with autonomic symptoms initially during its propagation or during the after math in addition patient with epilepsy experience long-lasting changes in the regulations of the ANS and their target organs (examples, the heart) Respiratory: Apnea, Hyperventilation, Hypoxia, Cough, and Gastro intestinal/abdominal; particularly in temporal mesial foci: Vomiting in occipital and opercula foci: pain especially in children.
Ascending sensation (dyspepsia) pain, hunger, borborygmi, nausea, vomiting, belching, urge to defecate fecal incontinence., 17 CC-No.64/2011 GTC: Generalized Tonic-clonic seizure: SUDEP= sudden unexpected death in epilepsy."
"It is submitted that with regard to the epilepsy seizure advance research previous text resuscitation Volume 75 Issue II Pages 298 to 304 November 2007, Cardiac arrest predictability in seizure, patient based on emergency medical dispatch identification of previous seizure or epilepsy history: knowing whether seizure patient is on epileptic or has had previous seizures of clinical value and relevant to dispatch by improving the discernment of the seizure protocol regarding seizure associated with anoxic cardiac arrest predictability."
11. Commission examined the above Literature in the field of SUDEP and now to examine certain vital aspects, which are come in the enquiry in the evidence of O.P.No.3- Dr.Vaikunthraj.K.N. Dr.H.J.Bhanumathi W/o of O.P.No.2 working as a Doctor at OP-1-hospital has deposed; OP.No.4- Dr.Vijaykumar was working in a casualty and the hospital has not maintained any document in respect of treatment of patients in OPD. She admits as per her instructions O.P.No.4 had given prescriptions to the attendant, whereas parents of deceased girl child have denied about giving such prescriptions 18 CC-No.64/2011 either to her Mother or Father or any attendant. When no records maintained by the hospital, question of production of such documents does not arise at all. But, facts remain that, Dr.Vijaykumar, who said to have administered two injections to the girl child, as instructed by O.P.No.3, has not been examined before the Commission for the reasons best known to Ops No.1 to 3 and O.P.No.4. O.P.No.3 Doctor has categorically replied to the interrogatories that, their treatment is not cause to epilepsy, no wrong treatment given by O.P.No.1 and treatment is not the cause of the seizure, yet Dr.Vijaykumar is kept behind the enquiry, for which Commission could safely draw an inference, attributing some deficiency of service on the part of Ops. It has come in the enquiry in the evidence of Dr.H.J.Bhanumathi, that, O.P.No.4 is a holder of B.A.M.S. He was attended the patient and even this aspect is not proved from satisfactory evidence, since it has also come in the enquiry from one of the witness that he is a Diploma holder. The Doctor in her evidence has said, the child come to their hospital by walking and the child was brought with a history of fever, vomiting and cough. The child did not complain of stomach pain, she complain of only fever, head ache etc. She admits, child was given with two 19 CC-No.64/2011 injections in their hospital. Sister Sumathi has given two injections to the child as per her instructions, which is contrary to her evidence and the evidence of first witness for the complainants. She admits that, as instructed by O.P.No. 2, she has directed, Sister Sumathi to give injections to the child and it is elicited in her evidence that she did not propose to examine any other witness and deposed that her husband, herself and Dr.Vijaykumar have read the contents of version filed by them, yet gave contrary evidence in so far as administering injections to the girl child is concerned. Complainants have stated that, injections were administered by O.P.No.4- Dr.Vijaykumar, as instructed by them, but replied in her cross- examination that as instructed by O.P.No.2-Sister Sumathi gave injections to the child and even go to the extent she herself prescribed to give injections Emeset for vomiting sensation and other for Diclofenac for fever and to that affect, no note/record is maintained in their hospital to give a particular injection. If a person injected intravenous the brain can be damaged within 10 minutes due to lack of oxygen and denied that patient slipped into coma immediately after injection was given. However, admits that they have suggested shifting the child to 20 CC-No.64/2011 some specialized hospital, though OP.No.3 has stated that she did not know whether she was shifted to B.G.S Hospital. Facts remain that she was shifted to B.G.S Hospital. She was sent in an ambulance with a Doctor. She was not known who was accompanied the child; she has not ascertained about the diagnosis made in the B.G.S Hospital as well as in Fortis Hospital. But, Dr. Nagendra, knew as to the diagnosis made in the B.G.S and Fortis Hospitals. It has come in the enquiry that it was diagnosed Gross Cerebral Trophy with hypertense signal changes in bilateral parietal lobe with neurodegenerative disease. If we examine the evidence of O.P.No.5-Mr.Vasanth Kumar a Receptionist of O.P.No.1 has stated that, patient girl child was treated by O.P.No.4. If we examine the whole enquiry, O.P.No.4 has to be held attended the patient child when she was brought by her Mother for treatment, administered two injections as instructed either by O.P.No.2 or by O.P.No.3 or by both. In such circumstances commission of the view that O.P.No.2 and 3 as Proprietor of O.P.No.1-Hospital have failed to submit as to the educational qualification of O.P.No.4-Doctor Vijaykumar and in such circumstances evidence of complainant that he was not holding required qualification treated the child 21 CC-No.64/2011 amounts to deficiency of service on the part of hospital. As already stated from the evidence of O.P.No.3 that, he is a holder of B.A.M.S, even it is not known whether he is a holder of B.A.M.S or a Diploma Holder, since he is kept behind the enquiry for the reasons best known to them. In the view of commission Ops are bound to clarify certain vital aspects to ascertain what are those two injections administered by him and who prescribed those injections in writing handed over to attendant, since the patient was treated in the said hospital. Since, no records are maintained as found from their evidence, in our view, his evidence if placed, would have thrown light on certain vital aspects, as such give rise to the Commission to draw an inference that if he will be examined his evidence would go against Ops, as such with held by them.
12. In so far as Dr. Sridhar, Chief Medical Officer, Jayanagar General Hospital has stated that, girl child is in a vegetative state on account of which she is suffering from cerebral atrophy which is an irreparable damage though she will have menstruation cycle and other conditions remains same and she will be in a vegetative state for the rest of her life. She is in need of daily medical nursing care. It is elicited in his evidence, 22 CC-No.64/2011 injection Diclofenac and Emiset will normally administer for fever and vomiting which off-course is stated by O.P.No.3- Dr.H.J.Bhanumathi, but facts remain that O.P.No.4 is kept behind the enquiry is not been examined. It is not known whether injections administered by O.P.No.4 are Diclofenac and Emiset, since O.P.No.3-Dr.H.J.Bhanumathi in her improvised evidence has stated that, Sister Sumathi administered injections as instructed by O.P.No.2 is contrary to her own evidence. Dr.Sridhar in his evidence has deposed that, girl child patient was on his care from 07.02.2011 for one year one month as per Ex.C-12. As per the case sheet she was admitted to Jayanagar General Hospital on 07.02.2011. According to him, the entire diagnose made is a vicious circle that is one follows the other and visa versa. As such, it cannot be said, which is primary and secondary and they are combined effect to whole disease. It has also come in his evidence that, such disease normally noticed and which is a common in child from six months to six years, which is called Febrile convulsion and same is in no way related to patients suffering from HIE. Dr.Vaikunthraj.K.N, a qualified Doctor, working as Assistant Professor of Neurologist in I.G.I.C.H, Bengaluru has stated that, 23 CC-No.64/2011 he had seen the child Anukasree Gowda, and he saw her in the month of August-2010 when he was working at BGS Hospital, Bengaluru. She was managed in ICU initially with ventilator support and medication for seizures. He found that there was no significant improvement and the child required tracheotomy support. The child was discharged with feeding tube and with necessary medication for spasticity and seizures. She was re- admitted for tracheotomy removal and even during that time, she was feeding on ryles tube as there was no significant change in sanatorium. Currently, as on 17.04.2015 she is suffering from Spastic encephalopathy with spastic quadric-paresis vegetative state. He was cross-examined by Ops and come in his evidence that, the child was admitted with past history of seizure at 6 months, seizure at one and half years and was on Dilation for 3 years and same was stopped for 3 years back. He issued Ex.C14, he deposed about discharge summary about Ex.C4 and C5. Thus, these documents coupled with evidence of medical experts in the absence of examining O.P.No.4 and examining any medical experts of Ops-medical experts of the choice of Ops, give rise to the Commission to attribute deficiency of service on the part of Ops No.1 to 3, since 24 CC-No.64/2011 deficiency of service is a comparative term which has to be ascertained from facts and circumstances of the case as a whole. As already stated above, O.P.No.1 to 3 have failed to examine O.P.No.4, who said to have administered two injections to the said child at the relevant time, since complainants alleged that, he was only a Diploma Holder, but O.P.No.3-Doctor in her evidence stated that, he is holder of B.A.M.S, yet failed to place evidence to that effect, since he is kept behind the enquiry throughout.
13. In the above such circumstances, the evidence placed on record by complainants, alleging deficiency of service on the part of Ops have to be held proved. Accordingly, we proceed to record affirmative finding on Points No.1 and 2.
14. Complainants have produced few documents to show that, patient girl child was studying in second standard at the time of her admission to OP-1-Hospital and during 2009-10 she was in A-Section of Sunrise English School, during 2007-08 was in LKG, during 2008-09 in UKG A-Section. The progress report for the period 2010-2011 is produced to show that she remained 25 CC-No.64/2011 absent after admitted to the hospital of OP.No.1. Few question and answer sheet written by her are produced.
15. Be that it may be she was a girl child studying in a primary school was a bright student and was a fair looking girl as could be seen from her positive photographs. Ex.C8 is inpatient bill issued by BGS Global Hospital. She was admitted on 02.09.2010 discharged on 10.11.2010, the gross bill amount would be Rs.2,54,998/-. Ex.C-9 is a certificate issued by ACU 5 EM Health and Research Centre dated 05.05.2012, certifying that, Miss.Anukashree Gowda, aged about 10 years was taking Acupuncture treatment in their hospital for one and half years, as she was suffering from Epilepsy, the total cost for the treatment for one and half years for Rs.90,000/-. Ex.C-10 is inpatient detail bill issued by J.P Hospital for Rs.41,050/-, she was admitted on 14.12.2010 and discharged on 13.01.2011. Ex.C11 is a bill issued by Fortis Hospital for Rs.1,24,302/-. Ex.R1 to R9 is copy of hospital records issued by OP.1-Hospital in respect of nurse daily record from 09.12.2010 and discharged on 10.12.2010. The girl child was admitted to General Hospital Jayanagar on 07.02.2011 and was discharged on 12.03.2012. 26 CC-No.64/2011
16. Thus, all the above documents would establish about providing treatment to the said child by her parents, commencing from 26.08.2010 and the trauma which they have faced, cannot be explained in terms of any words and the said child ultimately died. In other words, her parents with such continued struggle could not able to save their loving child and they have to curse for their fate for their no fault as they did what parents could do in such circumstances. In view of such discussions, the complainant has to be held established that only on account of deficiency on the part of Ops.No.1 to 4, girl child was subjected to such severe health disorder and disability commencing from 26.08.2010 and it were continued till 17.10.2016, when she last breath. She was under vegetative state of health for almost six years, one month and 22 days. Had she alive, Commission could have awarded adequate compensation, since she died on 17.10.2016, we have to compensate her parents, considering the pecuniary and non- pecuniary damages only in terms of money, since we cannot give back the child by ordering either Ops or else one. In this regard, we have to take into account, the expenses incurred for medical attendant, loss of earnings of the parents and other 27 CC-No.64/2011 material loss including damages for mental and physical shock, parents suffering, already suffered from 26.08.2010 to 17.10.2016, likely to be suffered in the future, loss of love and affection for having lost a loving girl child born on 20.05.2003 and towards incidental charges.
17. In view of the above such conclusion and in consideration of Ex.C8 to 11-bills, as complainants have shown incurring medical expenditure supported by cogent materials at Rs.4,98,464/-, has to be acceptable even without raising any objections as they are placed on record. It has come in the enquiry that, complainant-No.1a is working in Department of Police and it could be inferred that he could have lost earnings on account of loss of any kind of leave during the period of hospitalization of child, however, has failed to place cogent document to prove such loss to assess just compensation. In such circumstances, Commission cannot consider awarding compensation for loss of leave and in so far as attendant charges are concerned, considering the date of child went into coma and her taking treatment as an inpatient in various hospitals as already stated above and even after her discharge from such prolonged treatment, providing her continued follow 28 CC-No.64/2011 up treatment till she last breath on 17.10.2016 has to be considered that she was under treatment for six years one month and 22 days. It is therefore, in considering such prolonged treatment, her attendants could have spent at least Rs.200/- per day and they could have spent such amount for 2242 days and they could have spent at least Rs.100/- per day towards food and diet to the patient child for similar such days have to be considered by this commission while assessing pecuniary damages, in other words we are going to reimbursing the expenditures that is all.
18. We have to follow the guide lines found in the decision of the Hon'ble Apex Court in Lata Wadhwa's case, which is the classic case in the field of awarding compensation for the death of a child and herein on facts, considering the age of the child for the loss of dependency has to be awarded in favour of her parents and in view of the above discussions, Commission proceed to award compensation as follows:
I) Towards medical Expenditure supported by proved bills at Rs.4,98,464/-.29 CC-No.64/2011
II) Towards attendant/incidental charges to the complainants @ Rs.200/-, per day for 2242 days @ Rs.4,48,400/-.
III) Towards Vitamins, Fruits and Diets to the patient child @ Rs.100/- per day for 2242 days @ Rs.2,24,200/-.
IV) For the loss of love and affection Rs.50,000/- followed by the decision cited supra.
V) For the loss of dependency at Rs.4,50,000/- followed by the decision cited supra.
VI) Towards cost of litigation and other miscellaneous
expenses at Rs.50,000/- has to be awardable,
accordingly awarded under this head.
Thus, the commission awarded the above such amount to the complainants as against their prayer for awarding Rs.49,00,000/- plus Rs.30,00,000/-, as the case may be.
19. Now, question would arise, who has to pay such compensation to the complainants. In this regard, O.P.No.6- Insurance Company is also impleaded as one of the party and he admits that an insurance policy is issued in the name of O.P.No.1-Hospital for professional indemnity/errors/ 30 CC-No.64/2011 omissions (for medical establishment). Even Ops.No.1 to 4 in their version submitted that vide policy No.603901/46/10/ 8700000326 obtained a valid policy for the period from 26.06.2010 to 25.06.2011 and the policy was in force and if the Commission were to fix liability against O.P.No.1 to 4, the insurance company will be held liable and order to compensate the same. It is therefore, having been shown about obtaining valid insurance policy from O.P.No.6 by O.P.No.1-Hospital, since the child was treated in the hospital of O.P.No.1 on 26.08.2010 and the policy issued as Ex.R.6, covers the period from 26.10.2010 to 25.10.2011, as such 26.08.2010 falls well within the insurance coverage. OP.No.1-Hospital paid Rs.21,674/- towards total premium, the name of insured is Mathru Shree Hospital, who is none other O.P.No.1. Indemnity Limits is one Crore, the indemnity applies only to a claim arising out of bodily injury or death of any patient or alleged to have been caused by error/omission or negligence in professional service rendered, which should have been rendered by the insured or qualified assistants named in the schedule or any nurse or technician employed by the insured (hereinafter 31 CC-No.64/2011 referred to as Act). (Bolding is mine). Thus, suffice to hold that, in the circumstances stated in the above paragraphs, O.P.No.6 insurer is bound to indemnify Ops.No.1 to 5.
20. In view of the above such conclusion, Commission proceed to allow this complaint in part and directed Ops.No.1 to 5 do pay Rs.17,21,064/- as compensation to the complainants No.1a and 1b along with interest @ 7.5% p.a from the date of complaint till the date of payment. It is hereby ordered that, their liability shall be joint and several; however, O.P.No.6 insurer is directed to indemnify Ops.No.1 to 5 in their liability to pay compensation to the complainants. O.P.No.6 is directed to deposit the amount within 60 days from the date of passing of this award.
21. Furnish Free Copy of the Order to the parties.
Lady Member Judicial Member President *J*