State Consumer Disputes Redressal Commission
Lalluram vs Dr.S.Mathur & Ors. on 13 January, 2010
BEFORE THE CONSUMER DISPUTES REDRESSAL COMMISSION, RAJASTHAN, JAIPUR COMPLAINT NO. 69/96 Lalluram Meena s/o Beejaram Meena r/o Village Pilwa, Teh. Amber Distt. Jaipur. Complainant Vs. 1. Dr.S.Mathur Sharad Hospital, B-36 Shyam Nagar, Ajmer Road, Jaipur. 2. Prop./ Manager/ Partner Sharad Hospital, B-36 Shyam Nagar, Ajmer Road, Jaipur. Opposite parties Date of Order 13.1.2010 Before: Mr.Justice Sunil Kumar Garg-President Mrs.Vimla Sethia-Member Mr.Vijendra Singh counsel for the complainant Mr.Ashok Mehta counsel for opposite parties 2 ORDER
BY THE STATE COMMISSION ( PER HON. MR.JUSTICE SUNIL KUMAR GARG, PRESIDENT ) This complaint under section 12 of the C.P.Act,1986 has been filed by the complainant against opposite parties before this Commission on 19.12.96 with a prayer that since the child of the complainant was born in the hospital of opposite party no.2 and was under the treatment of opposite party no.1 and since he was not treated well by opposite parties when he remained admitted in their hospital and because of medical negligence on their part, the child became disable permanently and for that a sum of Rs.18 lacs and other charges were claimed as amount of compensation from the opposite parties.
2. The necessary facts may be summarised as follows-
That the wife of the complainant Smt. Kaushalya was pregnant and she was got registered for delivery in the hospital of opposite party no.2 in the year 1993 and the registration number was 2064/93 and she was under the treatment of opposite party no.1 a Gynaecologist ; thereafter when her delivery had became due on 17.1.94 and when she felt pain on 17.1.94 and therefore, she was got admitted in the hospital of opposite party no.2 where she had delivered a male child on 17.1.94 at 10.40 p.m. and at the time of delivery the weight of that child was 3 kg. It was further 3 stated in the complaint that the wife of the complainant Smt.Kaushalya and her child both were discharged from the hospital of opposite party no.2 on 21.1.94 and as per the case of the opposite parties both were O.K. It was further stated in the complaint that as soon as the child came to the house after the discharge from the hospital of opposite party no.2, the child was suffering from convulsion and mild fever and he was a patient of jaundice and intensity of the jaundice was so high and it had spread in the mind of the child and when she contacted again the hospital of opposite party no.2, they told the complainant that their duty was only to deliver the child and if child was having some complications, for that child- speacialist should be got consulted and thereafter on 22.1.94 the child was got admitted in the J.K.Lon Hospital, Jaipur and the child was discharged on 1.2.94 and as per the record of J.K.Lon Hospital, Jaipur marked Anx. 2 the child was suffering from severe jaundice neonatal hepatitis upto sole, ABO incompatability/ kernicterus stage II.
It was further stated in the complaint that the child was suffering from jaundice after the birth and since no treatment was given by opposite parties after birth, therefore, there was medical negligence on their part and had the treatment would have been given to the child by the opposite party no.1, the disease of jaundice could have been controlled but since no treatment was given to the child upto 22.1.94, the disease of jaundice had spread in the mind and because of that negligence the 4 level of bilirubin had crossed 18 mg. and because of that the disease of kernicterus had appeared as a result of which the child became disable and on 9.12.96 the medical officer of the Primary Health Centre, Chandwaji had given a certificate of the fact that the disability which was found in the child could not be cured and thus for that deficiency the present complaint was filed making a case of medical negligence on the part of opposite party no. 1 & 2.
A reply was filed by opposite party no. 1 & 2 on 19.5.97 before this Commission and their case was that the complainant had fabricated the document as the child and mother both were discharged from their hospital on 20.1.94 and not on 21.1.94 and that could be found proved from the record of the hospital Anx. R-1 a indoor ticket and further from an application Anx. R-2 signed by the complainant himself in which it was stated that the mother and child both were discharged from the hospital on 20.1.94, therefore, from the hospital record as well as from the application signed by the complainant, the fact that the mother and child both were discharged from the hospital of opposite party no.2 on 20.1.94 is well established and thus in the discharge ticket of the hospital of opposite party no.2 Anx. Ex.1, the complainant had intentionally stated the date of discharge as ' 21.1.94 ' in place of ' 20.1.94 ' after making forgery in document Anx. 1, the discharge 5 ticket and thus the complainant had not come with clean hands.
It was further stated in the reply that when the child was got admitted in the J.K.Lon Hospital, Jaipur on 22.1.94, the child was having convulsions since one day and since the child was discharged from their hospital on 20.1.94, therefore, if the child was suffering from the disease of convulsion and other diseases as mentioned in the discharge ticket dated 1.2.94 of J.K.Lon Hospital, Jaipur ( Anx. 2 ) for that opposite parties could not be held responsible as they would have developed after the discharge from their hospital on 20.1.94.
It was further stated in the reply that at the time of delivery the weight of the child was 3 kg. meaning thereby the child was healthy and when it was discharged from their hospital on 20.1.94 his condition was also good. It was further stated in the reply that as per medical science when a child is born, the new born children have physiological jaundice which does not require any treatment and further the occurence of convulsion could not be attributed to the rise of bilirubin and thus if anything had happened to the child , after the discharge from their hospital , they could not be held responsible for that and it was prayed that complaint be dismissed.
6Note- That this complaint was first decided by this Commission through order dated 16.11.2000 and following issues were framed by this Commission-
"1. Whether Smt.Kaushalya wife of the complainant and the newly born child were discharged from the opposite parties' hospital on 21.1.94 or 20.1.94.
2. Whether there has been any negligence whatsoever on the part of the treating doctor opposite party no.1 Dr.S.Mathur and for that matter of Sharad Hospital, opposite party no.2 resulting in the alleged mental handicap of the child in question."
and both issues were decided against the complainant by this Commission through order dated 16.11.2000 and accordingly the complaint was dismissed.
Aggrieved from the said order dated 16.11.2000, the complainant had filed an appeal before the Hon'ble National Commission and that appeal was registered bearing no. 318 of 2000 and the same was allowed through judgment dated 9.9.08 with the following observations-
" In view of above, we set aside the order passed by the State Commission and remand the case back to the State Commission, to either consider the application for getting the expert opinion or take on record the expert 7 opinion of Dr.S.N.Meena, filed by the appellant before us. If so prayed by the opposite party, he may also be allowed to be cross examined. Since the sole deponent of the opposite party/ respondent has not been cross-examined at all, the appellant should be permitted to cross examine the deponent of the opposite party. It is only after doing so, that the Ld.State Commission should go on to pass the order on merits after hearing both the parties.
Both the parties are directed to appear before the State Commission on 23.10.08."
Thereafter this complaint has come before this Commission on 23.10.08.
3. It may be stated here that since the affidavit of Dr.S.N.Meena, Child- Specialist was filed on behalf of the complainant before the National Commission, therefore, for cross examining Dr.S.N.Meena many opportunities were given to the complainant for producing Dr.S.N.Meena so that he could be cross examined by the counsel for the opposite parties but he was not produced and ultimately through order dated 13.4.09 no further opportunity was given to the complainant for producing that doctor for cross examination.
4. It may further be stated here that in view of the findings recorded by the Hon'ble National Commission through judgment dated 9.9.08, the opposite party no.1 Dr. Santusht 8 Mathur, Gynaecologist was cross examined on her affidavit by the counsel for the complainant on 10.7.09 before this Commission.
5. We have heard the learned counsel appearing for the complainant as well as for the opposite parties and have perused the entire materials available on record.
6. It may be stated here that for deciding this complaint following issues are framed-
(i) Whether Smt.Kaushalya was discharged from the hospital of opposite party no.2 on 21.1.94 as per case of the complainant or as per the case of the opposite parties on 20.1.94 or not.
(ii) Whether as per medical science, it was the duty of the opposite parties that when the child in question was born on 17.1.94, the same should have been got checked up by the Child Specialist and if the same was not checked up by the child-specialist as in the present case the same was not checked up by the child- specialist whether for that act any medical negligence could attributed on the part of opposite parties or not.
(iii) Whether the condition of the child which was found on 22.1.94 when he was being admitted in the J.K.Lon Hospital, Jaipur was due to non-9
examination of the child by the Pediatrician or not; in other words the diseases of Neonatal hepatitis upto sole,ABO incompatability/ Kernicterus state II were due to any medical negligence on the part of opposite party no. 1 and 2 or not.
(iv) Relief ISSUE NO. (i)
7. In our considered opinion, the case of the complainant that mother and child both were discharged from the hospital of opposite party no.2 on 21.1.94 could not be accepted because of the following reasons-
(i) That no doubt in the discharge ticket of Sharad Hospital, Jaipur, opposite party no.2 ( Anx. 1 ) which is produced by the complainant the figure '20' in the column date of discharge is found to be changed from ' 20 ' to '21' but the two documents i.e. Indoor Ticket of the hospital of opposite party no.2 ( Anx. R-1 ) clearly shows that Smt.Kaushalya was got admitted in the hospital on 17.1.94, the date of operation was 17.1.94 and date of discharge was 20.1.94 and since it is a valuable document of the hospital of opposite party no.2, therefore, reliance should be placed on it and in support of that there is another document Anx. R-2 which is an application signd by the complainant himself to the opposite party no.2 in which it was clearly 10 mentioned that Smt.Kaushalya was got admitted in the hospital on 17.1.94 and she alongwith the child was discharged from their hospital on 20.1.94, therefore, from these two documents, the fact that Smt.Kaushalya alongwith her child was discharged from the hospital on 20.1.94 is well established and the case of the complainant that she was discharged from the hospital of opposite party no.2 on 21.1.94 stands rejected and this issue is decided in the manner that Smt. Kaushalya and her child both were discharged from the hospital of opposite party no.2 on 20.1.94 and further it also stands proved that the date ' 20 ' has been intentionally changed to ' 21 ' by the complainant or on his behalf in Anx. 1.
ISSUE NO. (ii) Blood group of mother and child
8. From the discharge ticket of Sharad Hospital, opposite party no.2 it is very much clear that the blood group of the mother Kaushalya was ' RH O negative ' while the blood group of the child was ' B negative' and there is no dispute between the parties on this point.
9. From the discharge ticket Sharad Hospital, opposite party no.2 (Anx. 1 ) the following facts pertaining to the child were found-
11" Delivery notes-
Pt. delivered an alive male child at
10.40 p.m. on 17.1.94. placenta with coumb expelled out completely at 10.42 p.m. on 17.1.94 RML episiotomy stitched in layers.
Baby notes- Sex-
male, Baby blood group- B -ve, Apgal- 6/10, 8/10, Weight- 3 kg.,"
Cross-examination of Dr.Santusht Mathur, Gynaecologist, opposite party no.1 by the counsel for the complainant
10. It may be stated here that on her affidavit she was got cross-examined on 10.7.09 by the counsel for the complainant in which she had stated the following facts-
(i) That the blood group of the mother of the child was ' RH O negative '
(ii) That the blood roup of the child in question was ' B negative ' and this fact was made known to her after delivery of the child.
(iii) That during the period when the mother and child were remained admitted in the hospital of opposite party no.2 from 17.1.94 to 20.1.94, the child was not shown to any Child Specialist by opposite party no. 1 or by opposite party no.2.12
(iv) That in case where the blood group of the mother is ' RH O negative ' and if the blood group of the child born is of ' RH B negative' , then chances of jaundice are more.
(v) That jaundice might be due to many reasons but one of the reasons might be of ABO- Incompalibility.
(vi) That after the birth of the child some test of the blood taken from Naal was done but apart from that no other tests were got conducted in respect of the blood.
(vii) On a question put by the counsel for the complainant to Dr.Santusht Mathur, whether within 48 hours how much bilirubin could increase;
on that the answer which was given by Dr.Mathur was that there may be various variations.
11. In this case so far as the factual position is concerned, it is very much clear that opposite party no.1 was a Gynaecologist and not a Child Specialist and after the birth of the child i.e. from 17.1.94 to 20.1.94, the child in question was not got checked up by any Child -Specialist as is evident from the cross examination of Dr.Santusht Mathur, opposite party no.1 on 10.7.09.
Cooperation between the Obstetrician and Neonatologists
12. Neonatologist means " a physician who specializes in the study, care and treatment of neonates."
1313. As per medical science for effective delivery of perinatal services and to improve the management and outcome of newborn babies, the neonatologist should establish scientific interaction and a close collaboration with a large number of specialists especially obstericians, nurses, pediatric surgeons etc. etc. and each one of these sub-specialists constitute an important and crucial link but cooperation and interaction with obstericians is most vital to upgrade and improve the perinatal services in the teaching institutions and nursing homes.
14. Further the pediatrician expends his efforts to make certain that the baby survives the hazards of delivery, cardio-respiratory adaptations, biological inadequacies and environmental insults after birth.
15. It is, therefore, obvious that pediatricians and obstericians must join hands with each other not only to enhance neonatal survival but also to improve the quality of life among the survivors.
16. In this respect it may further be stated here that earlier detection of serious diseases of the newborn child could only be detected by the pediatricians but in the present case it is very much clear that after the delivery of the child on 17.1.94 and upto 20.1.94 when the mother and child were discharged from the hospital of opposite party no.2, the child was not checked up by any Child Specialist or Pediatrician and since after birth the check up of the child by the Child Specialist is 14 must, therefore, medical negligence on the part of opposite parties could be attributed as the conduct of opposite party no.1 falls short and below that of the standard of a reasonably competent doctor in his/her field .
17. Further opposite party no.1 could not be said to be a specialised as a doctor for treating the child and further it was the duty of opposite party no.1 or opposite party no.2 when the child in question was born on 17.1.94, they should have provide best services for observing the child and by not providing the service of child-specialist, their conduct falls short and below that of the standard of a reasonable prudent man or in other words; it could be regarded as a careless conduct or breach of a duty on the point to take care of the child in question and thus opposite party no. 1 & 2 both have failed in bringing their task and could be held guilty for not taking reasonable degree of care and thus they could be guilty of medical negligence and thus this issue is answered in favour of the complainant and against the opposite parties.
18. It is made clear that this issue is restricted only on the point that the child in question was not got examined by the child - specialist and thus, deficiency in service on the part of the opposite parties was found but it has got no relation for the condition of the child that was found on 22.1.94 when the child was got admitted in the J.K.Lon Hospital, Jaipur.
15ISSUE NO. (iii) Admission of the child on 22.1.94 in Santokba Durlabhji Memorial Hospital, Jaipur
19. It may be stated here that from the record on file it is also proved that the child was first got admitted in the Santokba Durlabhji Memorial Hospital, Jaipur on 22.1.94 and discharged from the hospital on the same day at about 12 noon and diagnosis which was made in that hospital are as follows-
" Icterus ( Jaundice ) kernicterus "
But on the discharge ticket it was also mentioned that the complainant had taken the child from that hospital as he did not want that the child be treated in Santokba Durlabhji Memorial Hospital, Jaipur.
Case of admission of the child in J.K.Lon Hospital, Jaipur on 22.1.94
20. It may be stated here that from Anx. 2 it appears that thereafter the child was being admitted in J.K.Lon Hospital, Jaipur on 22.1.94 and was discharged from that hospital on 1.2.94 and the diagnosis which was made in that hospital was as follows-
" Neonatal hepatitis upto sole, ABO incompatability/ kernicterus stage II."16
21. Further in the column of complaints and History following observations were made-
" Convulsion - 1 day and Fever - 1 day "
22. On file there is a blood report of the child dated 22.1.94 conducted by Getwell Poly Clinic & Hospital, Jaipur where S. Bilirubin ( Direct ) was found 6.0, S.Biliribun ( indirect ) was found 34.0 and S. Bilirubin ( Total ) was found 40.0 and further Heamoglobin was found 18.0 gms% and Reticulocytes was found 3 %.
23. From the record it further appears that the child was being treated in the J.K.Lon Hospital, Jaipur in the unit headed by Prof.Dr.S.P. Chaudhary assisted by Dr.B.S.Tomar and Dr.Ashok Gupta and their prescriptions are also on the file.
24. On file there are some prescriptions which shows that the child was got consulted by Dr.Shiv Gautam, Prof. of Deptt. of Phychiatry, SMS Medical College, Jaipur.
25. Further from the certificate and report given by the doctor of Primary Health Centre, Chandwaji on 9.12.96, the fact that later on the child had got mental and physical disability becaue of jaundice is also proved.
Non-
producing of Dr.S.N.Mena for cross-examination 17
26. It may be clarified here that though the Hon'ble National Commission through judgment dated 9.9.08 had stated that since evidence of Dr.S.N.Meena in capacity as expert was produced by the complainant before the National Commission through affidavit, therefore, permission was given to the counsel for the opposite parties to cross examine on his affidavit but as stated above though many opportunities were given to the counsel for the complainant to produce Dr.S.N.Meena but the same was not produced before this Commission and ultimately through order dated 13.5.09, the application by which more time was sought to produce Dr.S.N.Meena was rejected and thus the position remains that Dr.S.N.Meena was not got cross-examined on his affidavit by the counsel for the opposite parties.
27. It may be stated here that there is no dispute on the point that when the child was admitted in J.K.Lon Hospital, Jaipur on 22.1.94 the diagnosis which was made in that hospital is " Neonatal hepatitis upto sole,ABO incompatability/ Kernicterus state II" .
28. Before proceeding further the definition of the following words are quoted here-
Neona'tal (L.natalis, relating to birth, fr.nascor, pp.natus, to be born). Relating to the period immediately succeeding birth and continuing through the first month of life.
18Neonate, neona'tus (prec.) Newborn.
Hepati'tis Inflammation of the liver, usually from a viral infection, sometimes from toxic agents.
Kernicterus (Karan-ik'ter-us ) ( Ger.Kern, Kernel) A grave from of icterus neonatorum in which degenerative lesions are found in the lenticular nucleus, subthalamus and Ammon's horn.
Convulsion (L.convulsio, fr con-vello, pp.vulsus, to tear up ). A voilent involuntary muscular contraction' spasm.
Incompatibil'ity The quality of being incompatible;i.e., describing the situation in which one substance of a mixture cannot exist unchanged in the presence of the other substances in the mixture, this being referred to specifically as chemical i.
ABO blood groups The ABO blood group is identified by the presence of or 19 absence of two different antigens, A or B or the surface of the erythroughte. The four blood types in this grouping, A. B, AB and O or determined by and named for these antigens. Type AB indicates the presence of both antigens, type O the absence of both.
Antigen A substance intoduced into the blood to stimulate production of antibodies.
Antigen
-antibody reaction A process of immune sustme in which immunoglobulin-coated B cells recognises an intruder or antigen and stimulate antibody production to protect the body against infection.
Bilirubin An orange or yellow colored pigment derived from the substances present in haemoglobin.
Position of medical science in respect of Jaundice of the new born
29. Yellow colouration of the skin and the mucosa is caused by accumulation of excess of bilirubin in the tissue and the 20 plasma ) bilirubin level should be in excess of 2 mg. per 100 ml of blood )
30. Haemobilirubin is formed mainly fron the non iron fraction of haem of broken down haemoglobin. It is rapidly bound to serum albumin and forms unconjugated bilirubin-albumin complex ( indirect bilirubin ). The complex so formed is carried to the liver cells for conjugation by an enzyme glucuronyl transferase to form water soluble bilirubin diglucuronide ( direct bilirubin ). It is non toxic and is excreted through the bile duct into the intestine. In the intestine, the bilirubin is converted into urobilinogen. Each gram of haemoglobin produces as much as 35 mg of bilirubin on haemolysis. In pathological haemolysis, when production of haemobilirubin exceeds the albumin binding capacity, free bilirubin circulates in blood, this is highly toxic particularly to the cells within the central nervous system.
Causes of Neonatal Jaundice Physiological
31. This is the common form of unconjugated non-haemolytic jaundice in the newborns, found more in prematures. The jaundice usually appears on 2nd or 3rd day and disappears by the 7th to 10th day, a little later in premature neonates. It is usually mild and never lasts beyond the second week. The bilirubin level may rise to 10 mg% ( 171 m. mol/L ) in mature and even more in premature babies 21 ( Normal level is under 34 micromol/L or 2 mg% ).
Clinically, apart from jaundice, the baby is quite well. Stool and urine colour remain unaffected. There is no anaemia, no splenomegaly, no evidence of infection- localised or systemic. Coombs' test is negative.
Causes of excessive bilirubin production are: (1) Increased red cells destruction due to shorter life span ( 1/80th per day instead of 1/120th in adult ) of the excess RBC, the neonate had acquired due to relative anoxic state during the intrauterine life. (2) Transient decreased activity ( mature baby) or inadequate production ( premature baby ) of the enzyme from the liver which normally converts unconjugated bilirubin to soluble conjugated bilirubin. ( 3) Reduced conversion of bilirubin to urobilinogen by intestinal bacterial flora resulting in absorption of more bilirubin back into the circulation. Thus, multiple factors operate in producing physiological jaundice.
No specific treatment is required. The baby is given more fluids. In premature babie, careful observation is required and evidences of rising bilirubin near critical level should be dealt with by exchange transfusion. However, use of phenobarbitone or phototherapy is quite useful in such cases.
Pathological
32. Absolute features of pathological jaundice are-
22(i) Jaundice appears within 24 hours of birth.
(ii) Increase in bilirubin level at the rate of 5 mg/100 ml per 24 hours.
(iii) Absolute bilirubin level more than 15 mg/100 ml ( 250 n mol/L ).
(iv) Jaundice persists more than one week in mature and two weeks in premature neonates.
Causes of Pathological Jaundice-
Excessive red cell haemolysis:
I. Haemolytic disease of the newborn
- Foeto-maternal blood group incompatibilities- Rh incompatibility ( commonest), ABO in-compatibility- ( rare), immunisation against Kell antigen ( rarest )
- Increased red cell fragility - Congenital spherocytosis ( Familial acholuric jaundice )
- Deficient red cell enzyme - Glucose- 6 - phosphate dehydrogenase.
II. Neonatal septicaemia specially with E.coli III. Cytomegalic inclusion bodies- The virus is transmitted to the foetus through the placenta.
33. It may further be stated here that as per the discharge 23 ticket of the opposite party no.2 the child was found O.K. when Smt. Kaushalya and the child both were discharged from the hospital of opposite party.2 on 20.1.94 and he remained O.K. upto 21.1.94 but he felt some trouble on 22.1.94 and he was first got admitted in the Santokba Durlabhji Memorial Hospital, Jaipur and thereafter got admitted in the J.K.Lon Hospital, Jaipur and the diagnosis which was made by the doctors of Santokba Durlabhji Memorial Hospital, Jaipur was Icterus ( Jaundice ) Kernicterus and the diagnosis which was made by the J.K.Lon Hospital, Jaipur is quoted above.
34. It may be stated here that no doubt the rise of bilirubin level might have not increased in one day but since in this case the child was discharged from the hospital of opposite party no.2 on 20.1.94 and on 22.1.94 the level of bilirubin had crossed 18 mg., therefore, the hospital of opposite party no.1 & 2 could not be made responsible for that and since the disease of Jaundice in routine course usually appears on 2nd or 3rd day and disappears by the 7th to 10th day and in some cases possibility could not be ruled out that it might have increased after the discharge from the hospital of opposite party no.2 on 20.1.94 and it does not produce kernicterus but the present case is one of them where a case of kernicterus was found but it could not be said that it was due to any medical negligence on the part of opposite party no. 1 & 2 as Jaundice in a new born child usually appears on 2nd or 3rd day and disappears by the 7th to 10th day and further the 24 condition which was found later on might be due to many factors.
Effect of not producing Dr.S.N.Meena for cross examination by the learned counsel for the opposite parties
35. It may be stated here that no doubt in the present case Dr.S.N.Meena could be regarded as child-specialist and could be treated as an expert but since he was not produced by the complainant for cross exmination, therefore, in absence of that, the contents made in his affidavit could not be found established and thus in the present case there is lack of evidence of expert on the part of the complainant and from that point of view also, the diseases which were found on 22.1.94 when the child was got admitted in the Santokba Durlabhji Memorial Hospital, Jaipur as well as in the J.K.Lon Hospital, Jaipur could not be the result of any medical negligence on the part of opposite party no. 1 & 2.
36. It may further be stated here that ABO group incompatibility might be the disease of jaundice but in the present case that was diagnosed on 22.1.94 and not prior to that.
37. Further while deciding the medical negligence on the part of opposite party no. 1 & 2 and while taking into consideration the diseases which were found on 22.1.94 in the new born child, two factors apart from the others as stated 25 above have taken into consideration and they are as follows-
(i) That the complainant had not come with clean hands as he had changed the date in the discharge ticket from 20 to 21 .
(ii) That he had not produced Dr.S.N.Meena for cross examination as a result of which the opposite parties had deprieved of to cross examine him.
38. Thus, it is held that the condition of the child which was found on 22.1.94 when he was being admitted in the J.K.Lon Hospital, Jaipur was not due to any medical negligence on the part of opposite party no. 1 & 2 and thus, this issue is decided in favour of opposite party no.1 & 2 and against the complainant.
39. For the reasons it is concluded that medical negligence on the part of opposite party no. 1 & 2 is found established while deciding issue no. (ii) in the following manner-
(i) That they have not got examined the child by the child- specialist when he remained admitted in their hospital from 17.1.94 to 20.1.94
(ii) but for the condition of the child which was found on 22.1.94, no medical negligence could be attributed on the part of opposite party no. 1 & 2 and this point is decided while deciding issue no. (iii).
26ISSUE NO. (iv) On point of compensation for holding guilty of medical negligence on the part of opposite party no. 1 & 2 as is found while deciding issue no. (ii) Liability of medical men and hospitals
40. 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; 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 reasonable degree of care. Neither the very highest nor a very low degree of care and competent judged in the light of the particular circumstance of each case is what the law requires; ( Halsbury's Laws of England, 3rd Edn. Vol. 26 p. 17 ).
41. In Clark Vs. Maclenna ( 1983 (1) All.E.R. 416 ), it has been clearly stated that in case where a general duty of care arose and there was failure to take a recognized precaution and that failure was followed by the very beginning, the burden of proof lay on the defendant to show that he was not in breach of any duty.
2742. In Poonam Verma Vs. Ashwani Patel (AIR 1996 SC 2111 ), the Hon'ble Supreme Court has held as under: -
" The breach of duty may be occasioned either by not doing something which a reasonable man, under a given set of circumstances, would do or by doing some act which a reasonable prudent man would not do."
Vicarious liability
43. Vicarious liability means substitute or indirect responsibility of senior doctor when he delegates a task to his junior/ nursing staff or to doctors in locum tenens. In other words, the hospital may be held directly responsible for faulty premises, equipment, inadequate or unqualified staff and other organizational error and may also be held vicariously liable for the fault of their employees. The hospital authorities are responsible for the whole of their staff, not only for the nurses and doctors but also for the anesthetists and surgeons.
44. The moment a doctor/ hospital accepts to treat a patient who has submitted himself for such treatment, the duty of care starts, irrespective of monetary considerations.
45. In such a situation, the hospital cannot escape liability by mere statement that it only provides infrastructural facilities, services of nursing staff, supporting staff and technicians and that it cannot suo motu perform or recommend any operation/ amputation.
2846. It may further be stated here that coming to the amount of compensation , all facts and circumstances of the case have to be been taken into consideration as no doubt for the disease of Neonatal hepatitis upto sole, ABO incompatability/ kernicterus stage II, the opposite party no.1 & 2 were not held responsible but the fact is that the child is facing these diseases today and had become a mentaly disabled and the complainant is contesting the case since 1996 thereby causing mental agony and harassment apart from monetary and financial loss and thus, the complainant is entitled for pecuniary and non-pecuniary loss which included damages for mental and physical shock, pain and suffering already suffered or likely to be suffered in future, damages to compensate for the loss of amenities of life, damages for the loss of expectation of life, inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life, unusual deprivation.
47. In our considered opinion, looking to the entire facts and circumstances of the case, ends of justice would be met if lump sum compensation to the tune of Rs. one lac which includes pecuniary and non-pecuniary loss including mental agony and physical harassment and medical expenses etc., is awarded to the complainant against the opposite parties for not examining the child by the Child Specialist ,when he was admitted in their hospital from 17.1.94 to 20.1.94 and thus, opposite party no. 1 & 2 be directed to pay a sum of Rs. one lac to the complainant alongwith Rs.10,000/- as cost of litigation and the liability for such payment would be borne 29 jointly and severally by opposite party no.2 in capacity as hospital and opposite party no.1 being the doctor of that hospital.
48. It may be stated here that in the present case a sum of Rs. one lac which is going to be awarded to the complainant can be treated as token compensation looking to the condition of the child today and since issue no. (iii) is decided against the complainant and issue no. (ii) is decided in favour of the complainant, therefore, this amount of Rs. one lac can be regarded as just, fair and reasonable.
49. It is further made clear that the amount of compensation to the tune of Rs. one lac is going to be awarded for the deficiency in service on the part of opposite party no. 1 & 2 on the point that the child in question was not got examined by them when he was being admitted in their hospital for the period 17.1.94 to 20.1.94 but not for the condition of the child which was found on 22.1.94 when he was got admitted in the J.K.Lon Hospital, Jaipur and to the above extent, this complaint deserves to be partly allowed.
Accordingly, in the result, this complaint filed by the complainant is partly allowed in the manner and to the extent that the opposite parties are directed to pay to the complainant within three months from today a sum of Rs. one lac as amount of lump sum compensation and if that amount is not paid within three months from today, the complainant would be entitled to get interest 30 on that amount at the rate of 9% p.a. from the date of this order till payment is made.The opposite parties are further directed to pay to the complainant a sum of Rs. 10,000/- ( ten thousand ) as amount of cost of litigation. The liability of the opposite parties to pay the above amount would be joint and several.
(Vimla Sethia) (Justice Sunil Kumar Garg) Member President