Delhi District Court
Naresh Vaid Ors vs G.B. Pant Hospital on 27 September, 2023
IN THE COURT OF MS. SAUMYA CHAUHAN
ADDITIONAL SESSION JUDGE (FTC)-02,WEST
TIS HAZARI COURTS: DELHI
EARLIER
IN THE COURT OF MS. SAUMYA CHAUHAN
ADDITIONAL DISTRICT JUDGE-02:CENTRAL
TIS HAZARI COURTS: DELHI
CS DJ No.17635/16
In the matter of:-
CS DJ No.17635/16
CNR No. DLCT01-000443-2009
1. Mrs. Naresh Vaid aged about 45 years
W/o Late Pradeep Kumar Vaid
2. Ms. Jaya Vaid aged about 19 years
D/o Sh. Pradeep Vaid
3. Ms. Jyoti Vaid aged about 19 years
D/o Sh. Pradeep Vaid
4. Ms. Garima Vaid aged about 6 years
D/o Sh.Pradeep Vaid
Plaintiff no.4 being minor represented
by plaintiff no.1 being mother and natural
guardian who has no interest adverse to
the minors
Plaintiff no.1 to 4 are resident of:
G-590-91, Jahangir Puri, Delhi
5. Mrs. Natho Devi, aged about 62 years.
W/o Sh.Puran Chand,
R/o A-3/55, Sector-4, Rohini,
Delhi-110085 .......Plaintiffs
Versus
CS DJ no.17635/16 page no.1 of 39 Naresh Vaid & Ors. Vs. G.B.Pant Hospital & Ors.
1.G.B.Pant Hospital
Delhi Gate, Delhi
Through its Medical Superintendent.
2.Dr. Baba Saheb Ambedkar Hospital
Sector-6, Rohini, Delhi-110085
Through its Medical Superintendent
3.The Principal Secretary (Health),
Department of Health,
Government of NCT, Delhi
9th Floor, A-Wing, Delhi Secretariat,
I.P.Estate, near I.T.O.,
Delhi ....... Defendants
Date of Institution : 05.12.2009
Date of reserving for judgment : 13.09.2023
Date of pronouncement of Judgment : 27.09.2023
JUDGMENT
1. By this judgment, this court shall decide the present suit for compensation under the Fatal Accidents Act.
PLAINTIFF'S CASE
2. The present suit has been filed by the legal representatives of late Sh. Pradeep Kumar for compensation alleging that Sh. Pradeep Vaid expired due to medical negligence on part of defendant no.1 and 2. The deceased at the time of his unfortunate demise was aged about 42 years and was running a grocery shop.
3. It is the case of the plaintiffs that late Sh. Pradeep Kumar had gone to Rajasthan to attend a marriage ceremony. There, he consumed contaminated hand pump water and well-
CS DJ no.17635/16 page no.2 of 39 Naresh Vaid & Ors. Vs. G.B.Pant Hospital & Ors. water, due to which he fell prey to fever and stomach pain and had to take treatment from the local doctors for 3-4 days. However, his condition did not improve and he was taken to G.B.Pant hospital (defendant no.1) by plaintiff no.5. It has been averred that earlier in July 2007 also, late Sh. Pradeep Kumar had suffered from abdominal pain and was shown in the OPD of G.B.Pant Hospital, where the doctors had prescribed him medicines and had applied EVL Band and the patient was cured.
4. It has been averred that late Sh.Pradeep Kumar was admitted to G.B.Pant hospital on 08.07.2008, and he was diagnosed by the doctors to be suffering from ALD with acute HEV/PH/Grade III EsoVx decompensated Ascites. After treatment, Late Sh. Pradeep Kumar was discharged from the said hospital on 17.07.2008 with advice to attend OPD after 15 days. Thereafter, late Sh. Pradeep Kumar continuously attended the OPD till 04.09.2008 when he complained of bleeding from Rectum and pain in abdomen and swelling in feet to the OPD doctors. It has been alleged that even after seeing the serious condition of late Sh.Pradeep Kumar, the doctors of defendant no.1 hospital did not admit him, nor did they try to find out the cause of the bleeding. However, colonoscopy was done on 29.08.2008 which ruled out the presence of piles.
5. It has been alleged that in absence of piles, it was the duty of the doctors of defendant no.1 to admit the patient and to find out the cause of bleeding which was not done. He was prescribed medicines and was directed to come after 15 days in CS DJ no.17635/16 page no.3 of 39 Naresh Vaid & Ors. Vs. G.B.Pant Hospital & Ors. OPD. The plaintiffs further states that despite having taken the medicines as prescribed, the condition of late Sh.Pradeep Kumar deteriorated.
6. It is further the case of the plaintiffs that in the morning of 10.09.2008 late Sh.Pradeep Kumar was suffering from chills and fever and bleeding from rectum had also increased. His family members rushed him to the Casualty of Dr. Baba Saheb Ambedkar hospital (defendant no.2) as it was the nearest hospital. The doctors of defendant no.2 after taking into account all the medical records of G.B. Pant hospital and the condition of the patient, shifted late Sh.Pradeep Kumar to Casualty ward no.1. They were also apprised of the fact that the patient was also suffering from severe pain in abdomen, fever and shivering. The plaintiffs have alleged that the doctors of defendant no.2 hospital ignored the critical condition of the patient and had given him only some antibiotics namely monocef, rentac and inj Lasix. They failed to determine the reason of the bleeding despite the fact that piles as per the report of colonoscopy was already ruled out. They also failed to refer him to some other hospital and left him at the mercy of God.
7. The plaintiffs have further alleged that the doctors of defendant no.2 extracted four bottles of 500 ml each of fluid from the stomach of late Sh.Pradeep Kumar without even first testing the ascetic fluid as per the set medical norms. Further, as per the medical jurisprudence, not more than 1000 ml of fluid can be removed in a single day and the removed fluid from CS DJ no.17635/16 page no.4 of 39 Naresh Vaid & Ors. Vs. G.B.Pant Hospital & Ors. stomach ought to be replaced by concomitant intravenous infusion of Albumin. It has been alleged that due to the depletion of the vital fluids necessary in blood and kidneys due to the extraction of ascetic fluids beyond the prescribed limits, Sh. Pradeep Kumar expired.
8. The plaintiffs have further alleged that despite low platelets count, no fresh frozen plasma/B.T/platelets transfusion was given to the patient. Also, necessary tests such as LFT/KFT/ultrasound/endoscopy to find out the cause of the deterioration of the condition of the patient were not conducted. The plaintiffs have alleged that the doctors of defendant no.2 treated the deceased in a causal manner and failed to maintain the chart of BP/PR/temperature/intake of food/liquid/volume of urine passed/serum Ammonia etc. which would have been helpful to monitor his condition and to provide emergency help in case of sudden deterioration of patient's condition. Also, the patient was not shifted to ICU.
9. The plaintiffs submitted that in the facts and circumstances of the case the principle of Res Ipsa Loquitor is squarely applicable as the doctors of both the hospitals i.e. defendant no.1 and 2 remained negligent in treating the patient who expired due to their negligence. Hence, the plaintiffs have filed the present suit for compensation under the Fatal Accidents Act, praying for a decree for a sum of Rs.20,00,000/- along with pendentelite interest @ 12% per annum against defendant no.1 and 2 hospitals and also against defendant no.3 i.e. Government CS DJ no.17635/16 page no.5 of 39 Naresh Vaid & Ors. Vs. G.B.Pant Hospital & Ors. of NCT of Delhi, since both the hospitals are controlled and managed by it.
DEFENDANT'S CASE
10. The defendants have vehemently opposed the contentions of the plaintiffs in their Written Statement. It has been submitted that the present suit is not maintainable and is liable to be dismissed for want of requisite notice under Section 80 CPC as the plaintiffs have instituted the suit without serving the aforesaid notice. The defendants have further alleged that the plaintiffs have not approached the court with clean hands and have concealed the material fact that due to alcohol abuse, the deceased Sh. Pradeep Kumar had developed various complications and was suffering from severe liver disease with cirrhosis, with portal hypertension with esophageal varices grade-III with decompensated ascites with history of spontaneous bacterial peritonitis and his chances of survival were extremely dim due to the seriousness of the disease.
11. The defendants have further averred that their doctors are well-qualified and as per the post mortem report also, there was no evidence of any irregularities/negligence on the part of the treating doctors. Defendant no.2 has taken the stand that late Sh.Pradeep Kumar was a follow up case of G.B.Pant Hospital (defendant no.1) who was a diagnosed case of Alcoholic liver disease with portal hypertension with Esophageal varices grade III, with history of spontaneous bacterial peritonitis and all the possible care was given to the patient and the CS DJ no.17635/16 page no.6 of 39 Naresh Vaid & Ors. Vs. G.B.Pant Hospital & Ors. requisite/needed treatment in the form of antibiotics etc. when the patient approached the said hospital with complaint of fever with chills, abdomen pain and tense ascites. As per the stand of defendant no.2, the recommended treatment as in the case of the deceased is to remove some fluid so that the patient become comfortable and is able to comfortably breathe besides reducing other complications. It has been averred that as per the normal standard practice, since only 2 liters of fluid was removed, it was not necessary to give albumin. It has been denied that large amount of fluid was removed from the body of the deceased. Infact, as per usual recommendations, even if a large volume of fluid is removed (usually of more than 5 liters) even then, it is not mandatory to give albumin.
12. Defendant no.2 has further averred that the requisite investigations were carried out and regular monitoring of the patient was done. Further, there are limited number of ICU beds in defendant no.2 hospital, which is a 500 plus bedded hospital. Hence, all the patients cannot be kept in ICU. Defendant no.2 further submitted that the deceased Sh. Pradeep Kumar was treated in emergency medicine ward and proper care was provided to the deceased patient. It has also been averred that the condition of the patient was stable at around 09.00 am in the morning of 11.09.2008, but at around 11.30 am he suddenly collapsed.
13. As per defendant no.2 Sh. Pradeep Kumar was admitted to the hospital at the last stage i.e. when his liver was CS DJ no.17635/16 page no.7 of 39 Naresh Vaid & Ors. Vs. G.B.Pant Hospital & Ors. absolutely damaged with no chance of recovery. Defendant no.2 have further placed reliance upon various criteria such as MELD, CHILD PUGH, Maddory Discriminant function etc, which all criteria suggest that the patient had absolutely no long term survival chances and would have died within 3 to 6 months.
REPLICATION
14. In their replication, the plaintiffs have denied the allegations made by the defendants and reiterated the contentions made in the plaint. The plaintiffs have admitted that the deceased used to take alcohol occasionally i.e. about 100 ml in the year 2007 but he had totally given up the same in the month of May 2008 and so was disclosed by him to defendant no.1 hospital. The plaintiff further submitted that the deceased Sh.Pradeep Kumar was reported patient of HEV only, which is not regarded serious and might have developed the liver disease due to other reason such as contaminated water. The plaintiffs have further averred that generally one or two peg in a day by a healthy person increases his working capacity as the person gets a good sleep after taking alcohol. Plaintiffs further submitted that late Sh.Pradeep Kumar expired for want of proper treatment and also due to the negligence of the doctors of defendant no.1 and 2. It has been denied that G.B.Pant Hospital had diagnosed that the liver disease of the deceased in advance stage as to need liver transplantation.
ISSUES
15. On completion of pleadings, the following issues CS DJ no.17635/16 page no.8 of 39 Naresh Vaid & Ors. Vs. G.B.Pant Hospital & Ors. were framed by the court vide order dated 16.12.2010:-
"1.Whether the deceased Pradeep Vaid expired due to negligence in the treatment by the doctors of G.B.Pant Hospital & Dr. B.S.Ambedkar Hospital which were being run under the supervision of Govt. of NCT of Delhi?OPP
2.Whether the petitioners are entitled to any compensation, on account of death of Sh.Pradeep Vaid. If so, to that amount and from whom? OPP
3.Whether the petitioners are entitled to interest. If so, at what rate and for what period.
4. Relief."
16. To lead evidence, the plaintiffs examined the following witnesses:-
PW-1 Smt. Naresh Vaid
PW-1-A Sh. Mukul Sharma
PW-2 Sh. Pitamber Joshi
PW-3 Sh.Vijay Kumar Gupta
PW-4 Sh.Raj Kumar
PW-5 Sh.Surender Kumar
PW-6 Sh. Girish Manwani
PW-7 Sh.Puran Chand
PW-8 Dr. B.C. Jain
PW-9 Dr.P.S. Nayyer
PW-10 Dr. Pratima Khare
CS DJ no.17635/16 page no.9 of 39 Naresh Vaid & Ors. Vs. G.B.Pant Hospital & Ors.
17. PW-1, wife of the deceased tendered her evidence by way of affidavit as Ex. PW1/A, wherein she has reiterated the averments made in the plaint. In cross examination, she stated that she was married to the deceased in the year 1991. The deceased was 12th pass and his monthly income from his stationery shop was around Rs.8000/- per month.
18. PW-1 stated that in the month of May-June, 2008, her husband had gone to Alwar and Khertal, Rajasthan to attend marriage. Due to frequent change of water, he got very ill. He was suffering from acute diarrhea and vomiting. He was taken for treatment to Saroj Hospital in OPD and medicines were prescribed to him. On 10.09.2008, the deceased was taken to Ambedkar Hospital. She stated that he was critical at that time and doctors have given him medicines and assured that he will recover after taking the same.
19. PW-1 has stated that when she had taken her husband to Ambedkar Hospital, he was running very high temperature and was shivering. He also had severe stomach pain. He had developed breathlessness at about 02:00 AM in the night. Immediately after admitting him, the doctors administered glucose intravenous and medicines were injected and he started feeling better.
20. PW-1 stated that her husband was ill since 5 July, 2008 and she had taken him to G.B.Pant Hospital. On 06.07.2008 CS DJ no.17635/16 page no.10 of 39 Naresh Vaid & Ors. Vs. G.B.Pant Hospital & Ors. after examining her husband, the doctors prescribed the medicines including syrup etc. However, after taking those medicines, his condition further deteriorated in night. She stated that her husband had himself given the detailed history of his ailment to the doctor attending him on 06.07.2008. On 07.07.2008, at about 2.30 PM, her husband was admitted in the hospital, and remained there for about 11 days. The witness admitted that her husband had recovered and had even started taking his meals.
21. PW-1 stated that she is neither aware of her husband's disease, nor is she aware of the medical reports on record. She could not tell whether her husband's liver was badly damaged. She denied the suggestion that her husband was alcoholic and was suffering from Acute HEV/PH/GRADE 3 ESO'X De-compensated Ascites. She denied that doctors had informed them that the disease of her husband was in a very advanced stage and the only treatment of the same is liver transplant.
22. PW-1 stated that she is working in the Aanganwari and her salary is Rs. 2,500/- per month. She admitted that her father-in-law is a retired bank employee and is receiving pension. She expressed her ignorance about the LIC Policy No. 124027281, which was in her husband's name. She was not aware whether any letter was written by LIC Branch No. 12-C, Dufferin Bridge, Mori Gate, Delhi inquiring about the cause of death of Sh. Pradeep Vaid from Dr. B.R. Ambedkar Hospital, or CS DJ no.17635/16 page no.11 of 39 Naresh Vaid & Ors. Vs. G.B.Pant Hospital & Ors. whether any reply to the same has been given or not.
23. PW-1-A Shri Mukul Sharma, deposed that he had prepared the accounts for Vaid Store, a grocery shop being run by late Sh. Pradeep Vaid, for April 2007-September 2008. As per record, his annual income was around Rs. 93,981/- and for the year April 2008-September 2009, his annual income was Rs. 53,952/-. The said accounts are Ex. PW-1/A colly.
24. PW-2 Sh. Pitamber Joshi used to teach the daughters of the deceased at home and charged Rs.800/- per month for the same. PW-3 Shri Vijay Kumar Gupta deposed that the deceased used to run a grocery shop, and he used to purchase goods from there. His evidence by way of affidavit is Ex. PW-3/A.
25. PW- 4 Statistical Assistant, Dr B.S.Ambedkar Hospital had produced the summoned record of patient Pradeep Kumar from 10.9.2008 to 11.9.2008, consisting of total 7 sheets. The eight page is the reply of RTI given to Sh. Puran Chand. He admitted that there is some overwriting on Page no. 1 and cutting at point Mark A at page no. 3 (Page no. 5 of the original record). The summoned record is Ex. PW-4/A (colly) (OSR).
26. PW-5 Statistical Assistant, G.B. Pant Hospital, had brought the summoned medical record of Pradeep Kumar, who was admitted in the said hospital on 8.7.2008 and was discharged on 17.7.2008. He had taken further treatment as an OPD patient from time to time till 4.9.2008. The total sheets comprising of 40 CS DJ no.17635/16 page no.12 of 39 Naresh Vaid & Ors. Vs. G.B.Pant Hospital & Ors. pages are Ex. PW-5/A colly (OSR).
27. PW-6 Sh. Girish Manwani, Senior Consultant Saroj Hospital (Medicines), Delhi tendered his evidence by way of affidavit which is Ex.PW6/A. He deposed that he has been practicing for last more than 20 years and has dealt with liver disease cases. He had gone through the case history and documents of both the hospitals pertaining to the deceased, provided to him by deceased's father. He deposed that Sh.Pradeep Kumar had history of ALD with HEV, PHT/NB/Gd III EsoVx-EVL decompensate ascetics. He deposed that the doctors of defendant no.2 hospital should have admitted him to ICU, but he was kept in the general ward. Further, no ultrasound was done to find out the cause of bleeding, nor the ascetic fluid was taken without prior fluid examination. No liver biopsy was conducted to ascertain the damage caused to the liver of the deceased. He has further reiterated the allegations made by the plaintiffs in their plaint.
28. During cross-examination, the witness stated that liver cirrhosis mainly develop due to viral hepatitis B or alcohol intake and many other rare causes. He admitted that as per history of patient Pradeep Kumar, his liver was damaged due to alcohol and hepatitis E. He admitted as per medical jurisprudence, such patients with same history as that of the deceased, survive for a period of six months to maximum 1 ½ years, and 75% of such patients expired within six months. He admitted that as per medical treatment record of the patient and CS DJ no.17635/16 page no.13 of 39 Naresh Vaid & Ors. Vs. G.B.Pant Hospital & Ors. keeping in view his medical history, the line of treatment initiated by Dr. Ambedkar Hospital was correct.
29. This witness was re-examined by the plaintiffs' counsel as an ambiguity has arisen as in his examination in chief, where he has mentioned that the patient/deceased has a history of ALD with acute HEV but nowhere had he mentioned that the patient was suffering from cirrhosis of liver, whereas in his cross examination he has admitted the suggestion of the defendant that the deceased was suffering from liver cirrhosis.
30. In his re-examination, he admitted that in the entire medical history of patient/deceased, the term used is ALD which stands for 'Alcoholic Liver Disease' and nowhere the term cirrhosis has been used. He voluntarily deposed that ALD is synonymous to cirrhosis of liver; rather ALD is one of the causes of cirrhosis of liver.
31. PW-7 Pooran Chand, father of the deceased, tendered his evidence by way of affidavit which is Ex.PW7/A. He has corroborated the testimony of PW-1 and has further deposed that his son has expired due to non-admission in G.B.Pant Hospital at material time and improper diagnosis and treatment by the said hospital. He deposed that the doctors failed to detect the cause of liver disease and continuous bleeding from rectum which proved fatal to the deceased. He deposed that doctors of both hospitals failed to give essential treatment for ALD like corticosteroid and anti-cytokine, and only antibiotic CS DJ no.17635/16 page no.14 of 39 Naresh Vaid & Ors. Vs. G.B.Pant Hospital & Ors. were prescribed to the patient. No test of GGT, MCB, AFP etc. or liver biopsy was performed to diagnosed the stage of liver disease.
32. In his cross-examination by defendants, PW-7 admitted that his son used to take liquor occasionally on social functions. He admitted that his son had recovered from liver disease when he underwent treatment at G.B Pant Hospital in the year 2007. He admitted that his son suffered from fever and stomach pain while attending a marriage at Rajasthan in June 2008. He denied the suggestion that his son had consumed liquor during the said marriage and his liver disease had re-surfaced. He admitted that he was not present at the said marriage and did not know what had happened. He admitted that after returning from Rajasthan, his wife had taken his son for treatment at G.B. Pant Hospital. On the basis of prescription slip of the year 2007 and further examination, his son was given the treatment and was admitted in hospital on 08.07.2008. He admitted that during hospitalization, his son was diagnosed with ALD with Acute HEV/PH/Grade III ESOVx Decompensated Ascites.
33. He admitted that he had never requested hospital in writing to give his son the treatment as mentioned in his affidavit. He further admitted that all the treatments and deficiency in care as mentioned in his evidence affidavit had come to his knowledge after the death of his son, when he consulted various doctors like Dr. B.C Jain, Dr. Girish Manwani and Dr. Shambhuji. He admitted that Dr. B.C Jain is primarily an CS DJ no.17635/16 page no.15 of 39 Naresh Vaid & Ors. Vs. G.B.Pant Hospital & Ors. Orthopedic surgeon, while Dr. Shambuji attends heart and brain patients as well as general patients.
34. He denied the suggestion that the doctors at G.B Pant hospital had informed them that the disease was not curable. He denied the suggestion that there was no negligence and deficiency in care and treatment on the part of G.B. Pant Hospital.
35. PW-7 further stated that his son was admitted in Ambedkar Hospital on 10.09.2008 at about 7.00 am. His son was not fully alright but had taken his usual meal and also consumed Dahi-bhalla which he had bought from the market. At about 04.00-05.00 am, he complained of fever and shivering. He took his son to Dr. Ambedkar Hospital as it was near to his house, and since there was no OPD or any emergency facility available at that time on the said day in G.B. Pant Hospital.
36. He stated that they had shown the medical records of G.B Pant Hospital to the doctors for starting the treatment. The Doctors had also noted down the history of the patient on the basis of record of G.B Pant Hospital. Ambedkar Hospital had admitted his son in casualty and started treatment. The hospital had also done blood test. He is not aware of the other tests. The witness admitted that a large number of his friends are doctors. He admitted that none of the doctors whom he had consulted later on had ever examined his son clinically and physically.
CS DJ no.17635/16 page no.16 of 39 Naresh Vaid & Ors. Vs. G.B.Pant Hospital & Ors.
37. PW-7 expressed his ignorance about any insurance policy of his son. He was confronted with a letter from LIC along with Claim Form "B" regarding the cause of death of Sh. Pradeep Kumar. The witness admitted that it pertained to the insurance policy of his son Pradeep Kumar Vaid. However, he was not aware whether the family of his son had received the claim in the LIC policy. Copy of letter from LIC along with the from and reply sent by the hospital are Ex. PW7/D1 (Colly).
38. PW-8 Dr.B.C.Jain tendered his evidence by way of affidavit which is Ex.PW8/A. He deposed that he had seen the case history of the deceased and found various deficiencies in the treatment of the deceased, due to which he went in Coma and eventually expired. He deposed that there is glaring negligence on part of treating doctors of both the hospitals. The OPD record of G.B.Pant Hospital dated 19.07.2008 to 04.09.2008 are marked as Mark A to C. He also relied upon the medical literature of Schiff's disease of liver, Volume 1 and 2, copy of which are Ex.PW8/1.
39. During cross-examination, PW-8 deposed that he was approached by the deceased's father Pooran Chand who was under his treatment for Osteoarthritis. He stated that he is Orthopedic Surgeon, however he is practicing as physician and has treated many liver patients. However, he does not have any record of the patient being treated in his clinic since 1969. He had not done any research work of the abdomen region of the human anatomy. He has not done any special study or research CS DJ no.17635/16 page no.17 of 39 Naresh Vaid & Ors. Vs. G.B.Pant Hospital & Ors. work nor he has any master degree in respect to liver ailments and their treatment. He admitted that as per medical jurisprudence, M.S. Orthopedics is a doctor specialized bones and joint surgeon and does not deal or treat patients with liver or abdominal disease.
40. He admitted that he has not examined the deceased late Pardeep Kumar at any point of time and hence cannot say anything about his health. The witness further stated that ALD denotes "Alcoholic Liver Disease" which can be caused due to heavy alcohol consumption. SBP denotes "Spontaneous Bacterial Peritonitis". Decompensated ascetics is an irreversible condition of accumulation of water in abdomen. PHT means "Portal Hypertension". He stated that if proper treatment is given patient with SBP and PHT may survive. The witness was confronted with extracts of the book Ex.PW8/1, Page no.561 to 567 contains the Chapter 19 titled as "Ascetic & SBP". The witness admitted that on page 561 it is stated that development of SBP is associated with poor survival in patients with 'Cirrhosis ascetic"
the one year probabilities of survival is lower than 40%, therefore, SBP is considered an important criteria for the indication of Liver Transplantation. The said chapter is Ex.PW8/D1 and the relevant portion is marked A to A1. He admitted that the survival period in 40% of such cases is one year. He further admitted that 60% patient die within one year.
41. PW-8 admitted that the treatment which was administered to the patient in the instant case was correct, but CS DJ no.17635/16 page no.18 of 39 Naresh Vaid & Ors. Vs. G.B.Pant Hospital & Ors. only to an extent. He voluntarily stated that the patient who was bleeding from rectum and from Esophagus, should have been treated primarily and on a priority basis for the said bleeding which was not done by either of the defendants.
42. He further stated that he had seen the copy of the treatment file of the patient maintained at G.B.Pant Hospital. He admitted that the treatment given to the patient vide Ex. PW 8/D- 2 dated 19.07.2008 is correct, but since there was bleeding from rectum, the patient should have been admitted immediately and the test sigmoidoscopy and other tests should be conducted after admission by the hospital. However, he admitted that sigmoidoscopy is included in Colonoscopy, as Colonoscopy is a wider investigative term. He admitted that as per the record of G.B. Pant Hospital, Colonoscopy was conducted upon the patient. Page 21 of the medical record of the patient is Ex. PW 8/D-3. The report on page 22 is colonoscopy report. Same is Ex. PW 8/D-4.
43. PW-8 further stated he is not aware of the name of the medicine with which the liver disease can be cured. He admitted that the transplant treatment is expensive and donor is required for liver transplant. He admitted that he is not expert in the field of Hepatology and Gastroenterology but denied that he is not aware about the treatment of the liver disease being an Orthopedic Surgeon.
44. PW-9 Dr. P. S. Nayyer, Medical Superintendent CS DJ no.17635/16 page no.19 of 39 Naresh Vaid & Ors. Vs. G.B.Pant Hospital & Ors. (Medical and Allied) B. S. A. Hospital, Rohini, Delhi deposed that one RTI dated 05.01.2016 was sent by Sh. Raju Gupta S/o Sh. Satya Prakash Gupta R/o FK 35, Shastri Nagar, Delhi- 110052 to their hospital, which was forwarded to him by the Public Information Officer as the same pertained to Medical Ward. The said application is Ex.PW9/1. His reply to the same dated 03.02.2016 is Ex.PW9/2.
45. Dr. Pratima Khare, H.O.D.(Pathology) Dr. B. S. A. Hospital, Rohini, Delhi deposed that one RTI application dated 05.01.2016 sent by Sh. Raju Gupta S/o Sh. Satya Prakash Gupta was received by their hospital and the same was forwarded to her as query no.3 of the application pertained to Pathology Department. Same is Ex.PW9/1. Copy of her reply to the said application dated 18.01.2016 is Ex.PW10/1.
46. After the prosecution evidence was concluded, the defendants also led evidence. DW-1 Professor Dr. A.S.Puri, G. B. Pant Hospital, tendered his evidence by way of affidavit which is Ex.DW1/A. This witness deposed that in July 2007, the deceased Pradeep Kumar had come to the hospital OPD with complaint of pain in abdomen. As per the history given by the patient and his wife, he was a habitual drunkard of alcohol in heavy doses. The patient was examined by the doctors and various investigations were conducted and he was diagnosed to be suffering from acute chronic liver failure due to alcohol. The patient was prescribed medicines and EVL band was applied.
CS DJ no.17635/16 page no.20 of 39 Naresh Vaid & Ors. Vs. G.B.Pant Hospital & Ors.
47. The next time the patient was brought to the hospital in a sick condition and the reason given by his family was that he had gone to attend a marriage ceremony in Rajasthan, where he had consumed handpump water. He was admitted and after investigation it was revealed that he had spontaneous bacterial peritonitis. He was treated accordingly and was discharged on 17.07.2008 with instructions to strict adherence to zero alcohol. However, patient returned for treatment on 28.07.2008 with complaint of bleeding from rectum in small quantity i.e. 20ml. Immediate treatment was started by the doctors and colonoscopy was conducted on the next day, which was normal. UGIE was done according to the protocol to rule out bleeding from upper G.I.T. No source of bleeding was found and it appeared that the bleeding was related to underlying advanced liver disease.
48. He further deposed that the patient did not come to the hospital for follow up on 04.09.2008 or thereafter as advised and as indicated in the prescription, already Ex.PW5/A. He has further reported that the patient was a confirmed case of severe acute liver disease with decompensation in form of ascites and SBP with acute HEV superinfection which signifies very poor survival. He has further deposed that the patient died due to severity of his liver disease and associated complications. There was no negligence and lack of medical care on part of the doctors' team which attended him.
49. He further deposed that as per the research and study conditions as contained in Ex.PW8/D1, the chance of survival in CS DJ no.17635/16 page no.21 of 39 Naresh Vaid & Ors. Vs. G.B.Pant Hospital & Ors. such a case even in the best of centers was negligible. Till now no drugs are available to alter the natural history of this disease. The patient had severe coagulopathy which was one of the severe manifestations of disease and likely cause of bleeding from rectum and there is no drug to revert this condition. He deposed that the patient was continuously taking high doses of alcohol despite doctor's advice which adversely affected his survival rate. He further deposed that by the time the patient sought medical assistance at G.B. Pant Hospital, his liver disease was far more advanced and the only available treatment was liver transplantation.
50. In his cross-examination, DW-1 admitted that Ex.DW1/PX-1 relates to their hospital. He denied the suggestion that in case of chronic liver failure, liver biopsy, colon angiography, computed tomography scan i.e. C.T. Scan and Ultrasound are the standards tests required to be conducted. He denied that Pradeep Vaid was not in a condition to be discharged on 17.07.2008, but still he was discharged by the hospital. He voluntarily stated that the patient was a chronic case of alcohol abuse and such patients are discharged when they become stable because the treatment is lengthy and can be managed at home. In the present case at the time of his discharge, the patient was in a perfectly stable condition. He also stated that in the present case the patient Pradeep Vaid was not advised liver transplant because in such cases of liver disease on account of alcohol abuse, no transplant can take place unless the patient is off alcohol for a minimum period of six months which was not the case.
CS DJ no.17635/16 page no.22 of 39 Naresh Vaid & Ors. Vs. G.B.Pant Hospital & Ors.
51. DW-1 stated that it makes no difference whether the bleeding was 20 ml or 40 ml so long as it was below 100ml. he admitted that on 29.08.2008 colonoscopy was done. He admitted that as per Ex.PW8/D2A and the computer record Ex.DWI/PX-1, the patient had attended the OPD on 04.09.2008. He denied the suggestion that the patient should have been admitted in the hospital at the time of bleeding and the hospital was negligent while discharging him. He voluntarily stated that 20 to 40 ml bleeding per day does not require admission in the hospital and the patient can be discharged. He admitted that the patient was having Oesophagus Varices but denied that he needed band ligation. He voluntarily stated at that time there was no bleeding and even previously the patient had already undergone band ligation as per the record Ex.PW8/D4 on page 30 at point X. As per page 34 of Ex.PW8/D4 that the patient had taken the last intake of alcohol about 1½ month ago. He denied the suggestion that the entry made on 07.07.2008 at page 235 of Ex.PW5/A has been manipulated and fabricated. He further denied that the hospital record has been interpolated and manipulated, for the reason that on page 34 of Ex.PW5/A, 100gm was overwritten as 200gm. He voluntarily stated that the toxic level of alcohol is 60gm per day. He denied the suggestion that patient expired due to untimely discharge and improper care, negligence and casual approach of the hospital.
52. DW2- DR. Vivek Rana, Dr. Baba Saheb Ambedkar Hospital tendered his evidence by way of affidavit which is CS DJ no.17635/16 page no.23 of 39 Naresh Vaid & Ors. Vs. G.B.Pant Hospital & Ors. Ex.DW2/A. He deposed that when the patient was admitted on 10.09.2008, he only complained of fever with chills and pain in abdomen. He did not complain of any bleeding from anywhere. In view of his past history and on evidence of tense ascites and investigation evidence of high total leukocytes, a provisional diagnosis of chronic liver disease with portal hypertension with grade-III esophageal varices with de-compensated ascites with HEV infection and SBP was made and he was given treatment as per the standard guidelines. He was started on 3 rd generation cephalosporins (injection monocef), IV fluid and other supportive treatment. Other investigations like blood sugar, serum sodium, serum potassium, WBC, platelets, ECG etc. were carried out. LFT, KFT, HBSAG, Anti HCV, PT/INR, Ascetic fluid examination and ultrasound abdomen were ordered.
53. He further deposed that as the patient had tense acetic which was causing him discomfort, two liters ascetic fluid was drained to provide some relief immediately. He submitted that the patient had poor prognosis. He also deposed that the deceased father had approached the doctors of defendant no.2 and persuaded them to withhold the reason of his death, being alcoholic liver disease, from LIC to facilitate LIC claim settlement. The copy of LIC is Ex.PW7/D already.
54. In his cross-examination, DW-2 stated that the document Ex.PW4/A bears his signatures at point mark A on first page only. He voluntarily stated that there is a mention of the case "seen by SR/DNB/Specialist" on noting dated 10.09.2008 on CS DJ no.17635/16 page no.24 of 39 Naresh Vaid & Ors. Vs. G.B.Pant Hospital & Ors. second page and 11.09.2008 third page. He deposed that he and Dr. Harender Kumar had examined the patient being specialists. he denied the suggestion that there is manipulation in the document Ex.PW4/A which was received in response to the RTI; and voluntarily stated that the said document is only a photocopy and the so-called manipulation is only the portion which has not come in the photocopy. The witness placed on record copy of the original record which is Ex.PW4/A-1. The left noting on page Ex.PW4/A-1 is RBS-102mg, Sodium-140mg/liter, Potassium- 4.1mg/liter. He denied that RBS, Sodium and Potassium tests were not conducted and that is why the file does not bear the report of these tests. Infact, these tests were done on machine which gives a digital display reading. Hence print out of the same are not attached. He admitted that the document Ex.PW4/A-1 does not show that these tests were to be conducted, as these tests were already done by the Resident Doctor. He denied the suggestion that the patient was critical and needed to be admitted in the ICU. He states that Ambedkar Hospital is a 500 bedded hospital with only 12 beds in ICU, hence all the patients cannot be admitted to the ICU and same treatment was given to the patient in medicine ward also.
55. He admitted that the patient was not referred to a higher center which is specialist in liver disease as no bed was available in the ICU. He voluntarily stated that there was no such requirement because G.B. Pant Hospital does not have an Emergency relating to Gastroenterology and the aim was to stabilize the patient and take care of the immediate problem and CS DJ no.17635/16 page no.25 of 39 Naresh Vaid & Ors. Vs. G.B.Pant Hospital & Ors. refer after stabilizing. He denied that the standard protocol with regard to therapeutic taping was not followed while withdrawing the ascitic fluid. He stated that the patient had tense ascites which was causing discomfort and the standard protocol is to remove some fluid to make the patient comfortable and send a sample for a relevant test which was done as reflected from the document Ex.PW4/A showing that the sample was taken for diagnostic and therapeutic purposes.
56. DW-2 further denied that as per the standard protocol, only 700ml ascitic fluid can be tapped per day and thereafter albumin has to be given to the patient. He denied the suggestion that the patient had gone in hypovolemic shock due to non-supply of albumin after the ascitic fluid was tapped as a result of which more than 20% of the body fluid was depleted. He denied that it was only after the above mistake was realized that Haemaccel injections were suggested. He further denied that Haemaccel injection was never given to the patient. He denied that the basic tests like KFT, LFT were not done. He admitted that no suggestion for liver transplant was given to the patient or his family. He voluntarily stated that overall assessment of the physical condition of the patient is required to be done before suggesting such a transplant in order to ascertain the preparedness of the patient to accept such a transplant; and in the present case the patient had come to them in a sick condition and their primary aim was to stabilize him, and only thereafter, the question of liver transplant could be addressed.
CS DJ no.17635/16 page no.26 of 39 Naresh Vaid & Ors. Vs. G.B.Pant Hospital & Ors.
57. He further stated that the patient was diagnosed as having chronic liver disease with SBP at GB Pant Hospital and SBP is a marker of end stage liver disease and these patients have a median survivor of 6 to 9 months.
58. After the defendants have concluded their evidence, the matter was listed for final arguments. Learned counsels for both the parties have addressed oral final arguments at length and have also filed written submissions and case-laws in support of their arguments.
59. I have heard the detailed oral submissions made by learned counsels for both the parties and have gone through the entire record as well as the written submissions filed on behalf of the parties. The issue-wise findings of the court are as below:-
60. ISSUE no. 1 to 3 "1. Whether the deceased Pradeep Vaid expired due to negligence in the treatment by the doctors of G.B.Pant Hospital & Dr. B.S.Ambedkar Hospital which were being run under the supervision of Govt. of NCT of Delhi?
OPP
2. Whether the petitioners are entitled to any compensation, on account of death of Sh.Pradeep Vaid. If so, to what amount and from whom? OPP CS DJ no.17635/16 page no.27 of 39 Naresh Vaid & Ors. Vs. G.B.Pant Hospital & Ors.
3. Whether the petitioners are entitled to interest. If so, at what rate and what period.
4. Relief."
61. All these issues are taken up together being inter- linked and inter-related. The onus of proving issue no.1 to 3 was on the plaintiffs.
62. It is the case of the plaintiffs that Sh. Pradeep Vaid had died due to medical negligence on part of the doctors of defendant no.1 and 2 i.e G.B Pant Hospital and Dr. Baba Saheb Ambedkar Hospital respectively. As per the plaintiffs, late Sh. Pradeep Kumar had become unwell due to consumption of hand pump water at Rajasthan and he was taken to G. B. Pant Hospital. There, he was diagnosed to be suffering from ALD with acute HEV/PH/gradeIII ESO VX decompensated ascites. He was discharged after treatment on 17.07.2008 but his situation deteriorated and he started bleeding from rectum on 28.07.2008. However, the doctors of G B Pant Hospital did not admit him nor they tried to find the cause of bleeding. They only prescribed some medicines and asked him to come to OPD after fifteen days.
63. It has been further alleged that when Sh. Pradeep Vaid was admitted to Dr. Baba Saheb Ambedkar hospital, the doctors there ignored his critical condition and failed to diagnose the reason of the bleeding and also did not refer him to another CS DJ no.17635/16 page no.28 of 39 Naresh Vaid & Ors. Vs. G.B.Pant Hospital & Ors. hospital. Infact, they removed four bottles of fluid of 500ml each from the patient stomach without giving concomitant intravenous infusion of albumin which led to depletion of vital fluid in the body of the deceased. Also, no fresh frozen plasma/BT/platelets transfusion was done despite low platelets counts. No test like LFT/KFT/ultra sound/endoscopy were conducted. No chart of BP/PR/temperature/intake of food, etc. was prepared to monitor his condition. He was not even shifted to ICU. Due to deficiencies in treatment, the patient went in coma and consequently expired.
64. In the present case, the question before the court is whether the hospitals i.e. defendant nos. 1 and 2 were negligent in the treatment of the deceased and whether Sh. Pradeep Vaid has expired due to such negligence; and whether the plaintiffs are entitled to damages/compensation under Fatal Accidents Act, 1977 due to such negligence or not.
65. Medical negligence is a breach of duty on part of a medical practitioner to take due care which results in harm, injury or even death of a person. "Bolam v. Friern Hospital Management Committee" (1957) 1 WLR 582 is a landmark judgment on law of negligence in England. The principles laid down by McNair, J. in the said case were adopted by India in the case titled as "Jacob Mathew v. State of Punjab", (2005) 6 SCC 1. The relevant portion of the said judgment has been produced as under:-
"12.The term "negligence" is used for the purpose of CS DJ no.17635/16 page no.29 of 39 Naresh Vaid & Ors. Vs. G.B.Pant Hospital & Ors.
fastening the defendant with liability under the civil law and, at times, under the criminal law. It is contended on behalf of the respondents that in both the jurisdictions, negligence is negligence, and jurisprudentially no distinction can be drawn between negligence under civil law and negligence under criminal law. The submission so made cannot be countenanced inasmuch as it is based upon a total departure from the established terrain of thought running ever since the beginning of the emergence of the concept of negligence up to the modern times. Generally speaking, it is the amount of damages incurred which is determinative of the extent of liability in tort; but in criminal law it is not the amount of damages but the amount and degree of negligence that is determinative of liability. To fasten liability in criminal law, the degree of negligence has to be higher than that of negligence enough to fasten liability for damages in civil law. The essential ingredient of 'Mens Rea' cannot be excluded from consideration when the charge in a criminal court consists of criminal negligence. In R.v. Lawrence [(1981) 1 All ER 974 : 1982 AC 510 :
(1981) 2 WLR 524 (HL)] Lord Diplock spoke in a Bench of five and the other Law Lords agreed with him. He reiterated his opinion in R. v. Caldwell [(1981) 1 All ER 961 : 1982 AC 341 : (1981) 2 WLR 509 (HL)] and dealt with the concept of recklessness as constituting mens rea in criminal law. His Lordship warned against adopting the simplistic approach of treating all problems of criminal liability as soluble by classifying the test of liability as being "subjective" or "objective", and said: (All ER p. 982e-f)
13. "Recklessness on the part of the doer of an act does presuppose that there is something in the circumstances that would have drawn the attention of an ordinary prudent individual to the possibility that his act was capable of causing the kind of serious harmful consequences that the section which creates the offence was intended to prevent, and that the risk of those harmful consequences occurring was not so slight that an ordinary prudent individual would feel justified in treating them as negligible. It is only when this is so that the doer of the act is acting 'recklessly' if, before doing the act, he either fails to give any thought to the possibility of there being any such risk or, having recognised that there was such risk, he nevertheless goes on to do it."
CS DJ no.17635/16 page no.30 of 39 Naresh Vaid & Ors. Vs. G.B.Pant Hospital & Ors.
66. The Hon'ble Supreme Court further observed, "An oft quoted passage defining negligence by professionals, generally and not necessarily confined to doctors, is to be found in the opinion of McNair, J. In Bolam v. Friern Hospital Management Committee in the following words:
"[W]here you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill ... It is well- established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art." (Charlesworth & Percy, ibid., para 8.02)
20. The water of Bolam [(1957) 1 WLR 582 : (1957) 2 All ER 118 (QBD)] test has ever since flown and passed under several bridges, having been cited and dealt with in several judicial pronouncements, one after the other and has continued to be well received by every shore it has touched as neat, clean and a well-condensed one. After a review of various authorities Bingham, L.J. in his speech in Eckersley v. Binnie [(1988) 18 Con LR 1] summarised the Bolam [(1957) 1 WLR 582 : (1957) 2 All ER 118 (QBD)] test in the following words: (Con LR p. 79) "From these general statements it follows that a professional man should command the corpus of knowledge which forms part of the professional equipment of the ordinary member of his profession.
He should not lag behind other ordinary assiduous and intelligent members of his profession in the knowledge of new advances, discoveries and developments in his field. He should have such an awareness as an ordinarily competent practitioner would have of the deficiencies in his knowledge and the limitations on his skill. He should be alert to the hazards and risks in any professional task he undertakes to the extent that other ordinarily competent members of the profession would be alert. He must bring to any professional task he undertakes no less expertise, skill and care than other ordinarily competent members of his CS DJ no.17635/16 page no.31 of 39 Naresh Vaid & Ors. Vs. G.B.Pant Hospital & Ors.
profession would bring, but need bring no more. The standard is that of the reasonable average. The law does not require of a professional man that he be a paragon combining the qualities of polymath and prophet." (Charlesworth & Percy, ibid., para 8.04)
21. The degree of skill and care required by a medical practitioner is so stated in Halsbury's Laws of England (4th Edn., Vol. 30, para 35):
"35. 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 the law requires, and 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; 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, even though a body of adverse opinion also existed among medical men. Deviation from normal practice is not necessarily evidence of negligence. To establish liability on that basis it must be shown (1) that there is a usual and normal practice; (2) that the defendant has not adopted it; and (3) that the course in fact adopted is one no professional man of ordinary skill would have taken had he been acting with ordinary care."
The abovesaid three tests have also been stated as determinative of negligence in professional practice by Charlesworth & Percy in their celebrated work on Negligence (ibid., para 8.110).
25. A mere deviation from normal professional practice is not necessarily evidence of negligence. Let it also be noted that a mere accident is not evidence of negligence. So also an error of judgment on the part of a professional is not negligence per se. Higher the acuteness in emergency and higher the complication, more are the chances of error of judgment. At times, the professional is confronted with making a choice between the devil and the deep sea and he has to choose the lesser evil. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Which course is more appropriate to follow, CS DJ no.17635/16 page no.32 of 39 Naresh Vaid & Ors. Vs. G.B.Pant Hospital & Ors.
would depend on the facts and circumstances of a given case. The usual practice prevalent nowadays is to obtain the consent of the patient or of the person in-charge of the patient if the patient is not in a position to give consent before adopting a given procedure. So long as it can be found that the procedure which was in fact adopted was one which was acceptable to medical science as on that date, the medical practitioner cannot be held negligent merely because he chose to follow one procedure and not another and the result was a failure."
67. Further, in the case titled as "Dr. Laxman Balkrishna Joshi v Dr. Trimbak Bapu Godbole and another"
AIR 1969 SC 128, it was held by Hon'ble Supreme Court, "11. The duties which a doctor owes to his patient are clear. A person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person when consulted by a patient owes him certain duties viz. a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give or a duty of care in the administration of that treatment. A breach of any of those duties gives a right of action for negligence to the patient. 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 the law requires (cf. Halsbury's Laws of England 3rd Edn. Vol. 26 p. 17). The doctor no doubt has a discretion in choosing treatment which he proposes to give to the patient and such discretion is relatively ampler in cases of emergency."
68. In the case titled as "Maharaja Agrasen Hospital v. Rishabh Sharma (2020) 6 SCC 501", Hon'ble Supreme Court of India observed as under, "12.4.1. Medical negligence comprises of the following constituents:
CS DJ no.17635/16 page no.33 of 39 Naresh Vaid & Ors. Vs. G.B.Pant Hospital & Ors.
(1) A legal duty to exercise due care on the part of the medical professional;
(2) failure to inform the patient of the risks involved; (3) the patient suffers damage as a consequence of the undisclosed risk by the medical professional; (4) if the risk had been disclosed, the patient would have avoided the injury;
(5) breach of the said duty would give rise to an actionable claim of negligence.
.......................
.....................
12.4.3.Medical negligence is the breach of a duty of care by an act of omission or commission by a medical professional of ordinary prudence.
Actionable medical negligence is the neglect in exercising a reasonable degree of skill and knowledge to the patient, to whom he owes a duty of care, which has resulted in injury to such person. The standard to be applied for adjudging whether the medical professional charged has been negligent or not, in the performance of his duty, would be that of an ordinary competent person exercising ordinary skill in the profession. The law requires neither the very highest nor a very low degree of care and competence to adjudge whether the medical professional has been negligent in the treatment of the patient.
69. Let us examine the facts of the present case in light of the afore-discussed case laws.
70. The plaintiff's wife and father are PW-1 and PW-7 respectively. They have alleged that the defendants have not given proper treatment and care to the patient due to which he had expired. However, they have not been able to depose how the doctors of the defendant hospitals were negligent. One of the allegations of the PW-1 and 7 is that the patient was not admitted by G.B. Pant hospital when he had visited the hospital with the complaint of bleeding from rectum on 28.07.2008. However, DW-1 has already deposed that the patient was bleeding only 20 CS DJ no.17635/16 page no.34 of 39 Naresh Vaid & Ors. Vs. G.B.Pant Hospital & Ors. ml and no hospitalization was required. Further, admittedly, the deceased was suffering from ALD (Alcoholic Liver Disease) with acute HEV/PH/Grade III ESO VS decompensated ascites i.e the deceased was suffering from liver cirrhosis at a very advanced stage. PW-7, father of the deceased has admitted that his son used to consume liquor, though occasionally on social functions. He has pointed out various deficiencies in the treatment of the deceased, however he has admitted that the information regarding these deficiencies came to his knowledge only after he consulted other doctors after his death. He had deposed that a large number of his friends were doctors. But he failed to explain why he did not take their opinion or why he did not take his son to those doctor friends for his treatment or for taking a second opinion, while he was still alive. If he could take the opinion of these doctors regarding the deficiencies in his son's treatment after his death, what prevented him from doing the same during his lifetime if he was dissatisfied with the treatment given to his son by G.B.Pant hospital. Admittedly, none of the doctors who had advised PW-7 had ever examined his son clinically or physically and had given their opinion on the basis of book knowledge.
71. PW-6 Dr. Girish Manwani, Senior consultant, Saroj Hospital, had stated that the stage of liver disease of the patient was not deduced and that the patient had died due to non- admission for 23 continuous dates while he was bleeding from rectum. He further deposed that the defendant no. 2 did not conduct ultrasound etc. to find out the cause of bleeding and that CS DJ no.17635/16 page no.35 of 39 Naresh Vaid & Ors. Vs. G.B.Pant Hospital & Ors. due to removal of ascetic fluid, cardiac respiratory arrest was caused and patient collapsed. However, in his cross-examination, PW-6 admitted that he had never examined the deceased clinically. He further admitted that the patient was suffering from liver cirrhosis, portal hypertension and ascites and esophageal varices. He also admitted that as per the history of the patient, his liver was damaged due to alcohol consumption and Hepatitis E. He further admitted that there is not test available which could reflect the percentage of the extent of damage to the liver. He even admitted that as per the medical jurisprudence, patients who develop cirrhosis along with SBP, survive for a period of six months or maximum one and a half year. Most importantly, he admitted that the line of treatment initiated by Dr. Ambedkar hospital was correct, though there were deficiencies.
72. Similarly, PW-8 Dr. B.C. Jain is an orthopedic surgeon i.e. doctor who treats problems and disorders related to bones and joints etc. Admittedly, he is not an expert on liver related diseases. Even this witness had never examined or treated late Sh. Pradeep Vaid at any point of time. Further, PW-8 admitted that as per mark A to A1 in Ex.PW8/D1, which is page 561 of Chapter-19 of the book Ex.PW8/1, development of SBP (spontaneous bacterial peritonitis) is associated with poor survival in patients with cirrhosis and ascites, and the one-year probability of survival is lower than 40%. He admitted that in 40% of such cases the patients have a survival period of one year and 60% patients die within one year. He admitted that the treatment administered to the patient in the present case was CS DJ no.17635/16 page no.36 of 39 Naresh Vaid & Ors. Vs. G.B.Pant Hospital & Ors. correct to an extent. He also admitted that the treatment given to the patient vide Ex.PW8/B2 was correct.
73. In their entire evidence, the plaintiffs have not been able to show any negligence on part of the doctors of either of the hospitals which had resulted in the death of late Sh. Pradeep Kumar Vaid. To the contrary, it is admitted case that deceased Pradeep Kumar was suffering from ALD with acute HEV/PH/Grade III EsoVx decompensated Ascites with SBP and was admitted to Dr. Baba Saheb Ambedkar hospital only after his situation had worsened. It is recorded on the discharge summary slip of Dr. Ambedkar Hospital that the deceased a chronic alcoholic for last few years. The plaintiffs have alleged that G.B.Pant hospital had refused to admit the patient and he was given treatment in the OPD only. However, there is no explanation why the patient was not taken to any other hospital for almost if G.B.Pant Hospital had refused to admit him.
74. It is also admitted that the deceased was admitted to Dr. Baba Saheb Ambedkar hospital on 10.09.2008 in Casualty ward no.1 for treatment. From the record of treatment placed on the judicial record, it appears that the patient was given due care and treatment. The blood tests were also conducted. His condition was stable as on 11.09.2008 at around 09.00 am. However, at around 11.30 am, he collapsed suddenly and expired. There is nothing to suggest any negligence on part of the doctor of either hospital which had resulted in the death of late Sh. Pradeep Kumar. There is no postmortem report of the CS DJ no.17635/16 page no.37 of 39 Naresh Vaid & Ors. Vs. G.B.Pant Hospital & Ors. deceased on the judicial record to suggest that he had expired due to negligence of the doctor.
75. The plaintiffs i.e. family of the deceased was well aware of the condition of the deceased when he was admitted and being treated at G.B.Pant Hospital in July, 2008. Also, the patient stated to have started bleeding from rectum on 28.07.2008, but he was admitted to hospital only on 10.09.2008. Even if G.B.Pant Hospital had refused to admit the deceased, the plaintiffs could have taken him to some other hospital if his condition was deteriorating.
76. Also, the allegations that the deceased was not shifted to ICU by defendant no.2 is without any ground as he was being given proper treatment in the Casualty Ward itself. It has further not been proved that the failure to give concomitant of intravenous albumin had resulted in deceased having a cardiac arrest and slipping in coma.
77. In view of the above discussion, this court is of the considered opinion that the plaintiffs have failed to discharge the onus of proving these issues. The plaintiffs have failed to prove that the death of late Sh. Pradeep Kumar (deceased) due to medical negligence on part of the defendants. The plaintiffs have further failed to prove that the death of late Sh. Pradeep Kumar would be covered under Fatal Accidents Act, 1977 and the plaintiffs are entitled to compensation under the said Act.
CS DJ no.17635/16 page no.38 of 39 Naresh Vaid & Ors. Vs. G.B.Pant Hospital & Ors.
78. Accordingly, issues no. 1 to 3 are decided in favour of the defendants and against the plaintiff.
79. Issue no.4 "Relief"
80. In view of the above findings of this court, the suit is dismissed. Parties to bear their own costs.
81. Decree sheet be prepared accordingly.
82. File be consigned to the record room after due compliance.
Announced in the Court (Saumya Chauhan)
today on 27th September, 2023 ASJ(FT C)-02, West
Tis Hazari Courts/Delhi
Earlier
ADJ-02, Central
Tis Hazari Courts/Delhi
CS DJ no.17635/16 page no.39 of 39 Naresh Vaid & Ors. Vs. G.B.Pant Hospital & Ors.