National Consumer Disputes Redressal
Kamala R. Bhat vs Manipal North Side Hospital & Anr. on 31 March, 2016
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI APPEAL NO. 192 OF 2005 (Against the Order dated 14/05/2005 in Complaint No. 35/1997 of the State Commission Karnataka) 1. KAMALA R. BHAT NO.7 , KUMARA COT LAYOUT , MADHAVANAGAR BANGLORE - ...........Appellant(s) Versus 1. MANIPAL NORTH SIDE HOSPITAL & ANR. II MAIN , OPP. MALLESWARAM RAILWAY STATION BANGLORE - ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE D.K. JAIN, PRESIDENT HON'BLE DR. S.M. KANTIKAR, MEMBER HON'BLE MRS. M. SHREESHA, MEMBER For the Appellant : Mr. Shamik Sanjanwala, Advocate For the Respondent : Ms. Kiran Suri, Sr. Advocate with Mr. Vivek Singh & Mr. Gautam Kumar, Advs Dated : 31 Mar 2016 ORDER DR. S.M. KANTIKAR, MEMBER As per Condon's dictum ''The anatomy of the inguinal region is misunderstood by some surgeons at all levels of seniority'' if it is correct, then it is safe to say that sliding hernias are understood by few surgeons at any level of seniority. Thus sliding hernia is important for the special surgical technique and care during intra-operative period which decreases the morbidity.
1. For the convenience the parties are placed in the respective position as in the original complaint no. 35/1997. The brief facts relevant in this first appeal are; Dr. S.R. Bhat (since deceased, hereinafter referred as "a patient") a practicing reputed dentist for about three decades, was suffering from bilateral inguinal hernia. He consulted Dr. M. R. Ramachandra Rao (OP2), a Consulting Surgeon at Manipal Northside Hospital (OP1) for the treatment of bilateral hernia. The OP2 after examination assured him, that the operation is minor one and involves no risks. Therefore, after pre-operative investigations and assessment, OP2 performed the hernia operation in the morning on 02-05-1996. At about 1:00 PM a glass of milk was given to the patient as per the instructions of OP2, but the patient vomited number of times thereafter. Due to abdominal pain, the patient was unable to walk up to the toilet for urination, therefore, a urinary catheter was put at 11:00 PM. The patient was discharged on 04-05-1996 and he was called on 09-05-1996 for removal of sutures. After returning home the patient followed the instructions and prescription of OP2, but the patient continued to be uneasy and had severe pain at the site of surgery. This was informed to OP2, who gave telephonic instructions only, never called the patient to the hospital for further examination. On 09-05-1996, sutures were removed. The patient had mild fever on 10-05-1996. It was informed to the OP2 over phone, but no avail. On 12-05-1996, patient experienced shooting pain in the shoulder. It was informed to OP2, but he failed to foresee the postoperative complications were setting in. Further, the patient developed gradual abdominal swelling and increase of pain from 12-05-1996 to 14-05-1996 which was informed telephonically to the OP2. He suggested continuing the same medicines. Since the pain was severe, patient was taken to OP1 hospital on 14-05-1996, consulted OP2; it was diagnosed as perforated duodenal ulcer (DU). Therefore, on the same day OP2 performed emergency Laperotomy (abdominal surgery) under general anaesthesia. No investigations like barium meal study or endoscopy were done before the operation. No gastroenterologist was consulted either before or after the laperotomy. The operation was conducted solely on the x-ray report which was not conclusive for DU. Therefore; the perforation was a doubtful diagnosis. Post operatively, patient was kept under ICU for ten days without any cogent reason. The patient developed fever and uncontrollable hiccups, there were no signs of recovery. At that stage, OP2 failed to refer the patient to super speciality hospital. On 21-05-1996, OP2 went abroad delegating his duty to Dr. V.A. Srinivas to look after the patient. The patient's condition further deteriorated and patient developed urinary retention and lung oedema. On 27-05-1996, when the things became uncontrollable, Dr. V.A. Srinivas shifted the patient to Manipal Hospital, Bangalore. There, the patient was examined by a Surgeon, Dr. M.G. Bhat. It was diagnosed as a case of delayed recovery because of sepsis and ileus (intestinal obstruction). The patient was seriously ill, emaciated with temperature and distended abdomen. On 30-05-1996 morning, patient developed faecal discharge from the operated wound of right inguinal hernia. Therefore, Dr. M.G. Bhat performed another laparotomy, and found a large extent of infection in the abdomen. Subsequently, during course of treatment the patient suffered coma on 22-06-1996, which further led to death on 30-06-1996. Therefore, the complainants alleged that, the OP2 injured the large intestine particularly sigmoid colon during hernia operation which became fatal. It was further alleged that, OP2 failed to manage post operative complications, the OPs failed to provide requisite standard of care and skill. The hospital(OP-1) infrastructure was inadequate. Hence, it was a deficiency in service and negligence. Therefore, complainants Smt. Kamala Bhat, Dr. Jyoti Bhat and Shri Girish filed a complaint before the Karnataka State Commission at Bangalore (hereinafter referred as State Commission) in March 1997. The complainants also filed a complaint before the Karnataka Medical Council, Bangalore.
2. The State Commission dismissed the complaint; therefore, aggrieved by the order of the State Commission the complainants filed First Appeal before this Commission on 17-05-2005.
3. We have heard the learned counsel for both the parties at length. The counsel for the appellant/complainant, Mr. Shamik Sanjanwala, reiterated the facts narrated in the complaint. The counsel further submitted that there was no reason for perforation of sigmoid colon after hernia operation. The doctrine of res ipsa loquiter is applicable in the instant case; therefore, onus of proving no negligence is on the OPs. OP2 failed in all aspects like not operated hernia with due care and skill, did not take proper care during post-operative period. The OP1 hospital infrastructure was inadequate to manage the post-operative complications. Therefore, it is a case of gross negligence. The counsel submitted that the instant case is covered by the judgment of Hon'ble Supreme Court in Savita Garg's case, (2004) 8 SCC 56.
4. The rival argument advanced on behalf of OPs by the learned senior counsel, Ms. Kiran Suri, was that the complainants are not consumers, OP2 is not an employee of OP1, but he is only a consultant, therefore, hospital is not liable, if wrong is committed by a doctor, the hospital is well-known for high standard, hygienic and quality of services, OP2 personally knew the patient for more than three decades, the patient was a known case of hypertension and epilepsy, almost 10 years back, the OP2 had diagnosed bilateral inguinal hernia in the patient and at the same time advised him to undergo surgery, but it was ignored by the patient which caused inordinate delay. The counsel further submitted that OP2 performed bilateral inguinal hernia operation as per standard procedure, it was uneventful. It was performed after informed consent only. Patient was discharged in good condition. Therefore, there was no chance of perforation of sigmoid colon after hernia operation. There was no negligence either during surgery or in the post-operative care.
5. The counsel further submitted that the patient informed OP2, about severe financial stress due to his daughter's engagement. On 14-05-1996, OP-2 after clinical examination and x-ray of abdomen diagnosed the patient as perforated acute stress ulcer of duodenum. Therefore, OP2 performed an emergency explorative laperotomy under general anaesthesia. The hole in the duodenum was repaired. As, it was an emergency condition; OP2 did not consult any Gastroenterologist, not done Barium meal study or endoscopy. The patient had extensive chemical peritonitis due to mixing of gastric juices, bile and pancreatic secretions which had leaked out from duodenum. The abdomen was cleaned completely and the sample was sent for culture and sensitivity test. It was reported as sterile. Therefore, it is clear that, there was no faecal peritonitis. The patient was shifted to ICU for further care. Patient had hiccups and slight temperature on 17-05-1996; it was treated with proper medicines. The x-ray of chest and abdomen revealed normal study on 18-05-1996. The bowel sounds were normal, patient passed motion. Thereafter, on 22-05-1996 the patient was shifted to general ward. On 24-05-1996, USG was performed which did not show any faecal/purulent peritonitis. On 26-05-1996, the patient had loose motion and developed signs of congestive cardiac failure (CCF - Pulmonary edema). It was treated with injection Lasix and Deriphyllin. Due to anxious patient's relatives, the patient was shifted on 27-5-1996, to Manipal Hospital, a super speciality hospital for the management of CCF. On 30-05-1996, the patient was re-operated at Manipal Hospital by Dr. M.G. Bhat. Operatively, it was noted that, patient developed pelvic abscess, peritonitis with adhesions, ileus and infection of inguinal area. There was collection of pus on the surface of sigmoid colon, which further caused sigmoid colon perforation. These were unexpected complications. Thereafter, from 18-06-1996 the patient developed further complications toxic encephalopathy, hepato-renal failure. Despite proper intensive care and management the patient died on 30-06-1996 at 2:55 P.M. Thus, there was no negligence on the part of both the OPs.
6. The counsel for OP further argued that, the principle of res ipsa loquitor is not applicable in the present case since the hernia operation was conducted on 02-05-1996 and the patient survived till 30-06-1996 and, therefore, there was sufficient time and resources with the claimants to explore if there is any negligence on the part of the doctor. The patient was not under the control of the doctor from 04-05-1996 to 14-05-1996 and from 27-05-1996 to 30-06-1996. Admittedly, Dr. Chatterjee, the friend of patient, has not been able to tell as per the records about, what was wrong with the surgery and medication? The entire complaint is based upon mere allegations without any proof. The complainant failed to prove the negligence against the doctor or the vicarious liability of the hospital. Therefore, the OPs cannot be held liable.
Discussion on Medical Issues:
7. The OP2 was a Surgeon, qualified as M.S., practiced for more than three decades. We have perused the summary sheets of OP1 hospital and the Manipal Hospital at Bangalore. It is important to understand about the post hernia operation developments/complications and the course of treatment in both the hospitals. The relevant findings in OP1 hospital on 14-5-1996 are reproduced below:
" Presenting complaints:
C/o Abdominal pain since yesterday. Pain on and off. Pain localised more to epigastric region non-radiating. Bi-lateral swelling +, cough impulse +, non-tender.
Past history:
History of swelling in both groins since 10 years. It was in small size and gradually increased in size. It is oval in shape. Pain increased in standing position with known case of hypertension since 10 years. He is on treatment Tablet Ciplar 10 mg, Tablet Catapress 1/2, Tablet Alprax 0.25 mg daily. Patient underwent Bilateral Herniorraphy on 02-05-1996 at 7.00 a.m. under anesthesia. Patient discharged on 4-5-1996 with good condition.
X-ray Findings 14-05-1996 Both sides of sub diaphragmatic space show free air. Patient undergone operation on 14-05-1996 under G.A. Right upper para-median laperotomy showed free air intraperitoneally. Purulent exudate in pelvis duodenal area showed a perforation which was adherent to under surface of liver. This area was sutured with 2.0' silk. Peritoneal washout done. Two drains in pelvis - one drain (L) sub diaphragmatic and another one ® sub diaphragmatic space. Foley's catheter inserted. Intra peritoneal instilled: 1 gm kanamycin."
8. The death summary (Annexure F) from Manipal Hospital revealed that the patient was shifted from OP1 to Manipal Hospital on 27-05-1996 under the care of Dr. M.G. Bhat. The recovery was delayed because of sepsis and ileus. The relevant para is reproduced as below:
"He developed faecal discharge from the right inguinal hernia wound on the morning of 30-05-1996. With a diagnosis of faecal fistula, he was taken up for laparotomy. The high risk of operation in this critical status of the patient was explained to the family. The only choice was to do a laparotomy to solve the problem. At laparotomy on 30th May, 1996 he was found to have extensive severe faeco-purulent peritonitis with extensive adhesions all over. The sigmoid colon was perforated and produced the faecal purulent peritonitis. There was dense adhesions between the lower abdominal wall and the ileo-caecal junction and the sigmoid colon. To release all these adhesions Right Hemicolectomy was performed and the sigmoid perforation was resected, the distal sigmoid closed and the proximal sigmoid colon brought out as an end colostomy (Hartmann's procedure).
Post operatively patient developed extensive oozing from all over the place due to development of disseminated intra vascular coagulation associated with severe sepsis. He was treated with blood transfusions and fresh frozen plasma and platelets. He was re-operated at night on the same day to control the bleeding. At the time of operation the collected blood was evacuated. The bleeding areas were under run. The anastomotic area looked discoloured so a side to side anastomosis of ileum to transverse colon was also performed.
Post-operative phase was very stormy because of his poor general health and associated severe septicaemia. With the aggressive intensive care management including ventilation and total parenteral nutrition we were able to maintain his haemodynamic status. He developed respiratory problems associated with a pleural effusion which required tapping. He also developed renal insufficiency. Unfortunately, he continued to have problems and developed faecal discharge from the wound. He had a prolonged stay in the intensive care with aggressive management.
In spite of all our efforts he continued to deteriorate and died on 30-06-1996 at 2.55 P.M."
9. It was an admitted fact that, patient initially underwent bilateral hernia operation, subsequently suffered for perforated DU, it was treated and later on he suffered a delayed perforation of sigmoid colon leading to faecal peritonitis which caused death subsequently. After careful analysis of clinical events and taking reference from standard surgical text books it is crucial to discuss the reasons of sigmoid perforation after inguinal hernia operation in this case. Whether it was due to negligence of OP2 or any missed/delayed diagnosis?
10. It is pertinent to note that, it was a case of bilateral inguinal hernia; therefore, it was expected from the OP2 to record details of operative procedure, the hernial sac and its contents. We do not find such details in the medical record, except mentioned as "performed hernia repair". Thus, the medical records are incomplete and not properly maintained. Secondly, the patient came to OP2 on 14-05-1996 with a complaint of severe abdominal pain. On the basis of clinical signs and x-ray findings, it was diagnosed as perforated acute stress ulcer of duodenum. It was treated by emergency laparotomy. It is quite surprising that, there was no history of any duodenal complaints previously. Also, the patient had neither history of mental stress or consuming any analgesic drugs. Even otherwise the operative notes clearly established that, there was purulent exudate in pelvic cavity.
11. From 27.05.1996 onwards, patient was in Manipal Hospital. Dr. M.G. Bhat treated the complications like fecal peritonitis and sigmoid colon perforation by he performed Right hemicolectomy with colostomy on 30.05.1996. According to him, if there was any injury to the sigmoid colon as alleged during the hernia operation it would have manifested within a few days. Since the patient had normal bowels and passing stools over 12 days after discharge from hospital. Thus, it was a subsequent problem and not due to the hernia operation. Therefore, it was not negligence, the condition of patient deteriorated due to known chemical peritonitis, i.e. complications of DU perforation. Dr. M.G. Bhat further explained that the reason for perforation of sigmoid colon was on account of the infection inside. We do not agree in totality with the opinion of Dr. M.G. Bhat , because in the case of sliding hernia, during operation there will be possibility of tying the hernial sac along with sigmoid colon wall partially. It causes vascular compromise and necrosis of colonic wall leading to delayed perforation of colon. In addition, during the 2nd operation for correction of DU, the pelvic cavity showed purulent material, which clearly establish about severe peritonitis. After 2nd operation, the patient was kept in ICU, under cover of higher antibiotics; therefore the signs of sigmoid perforation were masked.
12. The death summary (Annexure-F) discloses that, on admission to Manipal Hospital the patient was found seriously ill and emaciated. The recovery of patient after correction of DU perforation was delayed because of sepsis and ileus. Patient had distension of abdomen and temperature. Dr. M. G. Bhat made a diagnosis as abdominal sepsis, ileus and septicaemia. The patient developed faecal discharge from the right inguinal hernia site in the morning of 30-05-1996. Therefore, the patient was again subjected for laparotomy by Dr. M.G. Bhat. It lasted for six hours. The operative findings clearly disclosed the extent of damage to the intestine. Subsequently, the patient suffered coma on 22-06-1996 and died on 30-06-1996.
13. As per the medical literature filed by OPs, the patient of DU perforation has a short history of pain which could be less than 24 hours. Perforation peritonitis is the most common surgical emergency in India and its management is highly demanding, difficult and complex. That the diagnosis for the same could be made even clinically and also on the basis of an x-ray. That overall mortality rate for perforation peritonitis was 10% with septicaemia associated with MOSF being the most common cause of death. As per another medical literature, mortality from perforated duodenal ulcer is dependent upon the presence of several risk factors. Overall mortality is approximately 10% in most studies.
14. We accept the plea of OP2 that, there was no flaw during treatment of perforated DU on 14-5-1996. But, as per medical literature, in our view, it was a missed diagnosis of "Hernia en glissade" (sliding Hernia). A sliding inguinal hernia is a variant in which part of a viscus (usually the colon) is adherent to the outside of the peritoneum forming the hernial sac beyond the hernial orifice. Thus, the viscus and the hernial sac, which may contain another abdominal viscus, lie within the inguinal canal. Sliding hernias are more common on the left side (where they contain part of the sigmoid colon) than on the right (where they contain part of the caecum). Sliding hernias occasionally contain part of the bladder or an ovary and ovarian tube. A sliding hernia may be indirect or direct. They are nearly always found in males. A sliding hernia should be suspected if the neck of the hernia is bulky, or if the hernial sac does not separate easily from the cord at operation.
The incidence of sliding inguinal hernias increases with the age of the patient, being nearly zero before the age of 30 years . After the age of 50 years the incidence of sliding hernias is 3.5 times more frequent. Sigmoid colon forms the component in left side and caecum, appendix forms the content in right side in indirect inguinal hernias and bladder forms the sliding component in direct hernia.
It is important that, during surgery care is taken not to separate the content from the sac as the posterior wall of the sac is formed by the sliding component itself and attempts to dissect it from wall results in vascular injury to the structure and end in ischemic insult of the sliding component. Pre-operative complications are rare in sliding hernias as the main pathology is abdominal weakness and neck of the sac is rarely small enough to constrict the content. Thus, sliding hernia is important for the special surgical technique and care during intra-operative period which decreases the morbidity. Common post-operative complications are wound infection and seroma formation.
Discussion on legal Issues:
15. We have perused the medical record and the evidence on the file. We have referred several medical literature and surgical text books on the abdominal surgery on the subject of bilateral inguinal hernia and its complications. After thoughtful consideration, a short question involved in the instant case is "whether there was lack of standard of care and skill from the OP2 while performing hernia operation?" In a medical negligence case action against a specialist, the plaintiff must prove by a preponderance of the evidence: (1) that the doctor's treatment fell below the standard of care applicable to a doctor in his medical specialty; and (2) the existence of a causal relationship between the alleged negligent treatment and the injury sustained. On the basis of the evidence of record, we are convinced that, in the instant case OP2 failed to diagnose and treat the sliding hernia with care and caution. It was not a standard of care which surgeon owes to his patient. The patient was kept in the ICU for 10 days, under cover of higher antibiotics; therefore the avascular necrosis leading to sigmoid wall perforation was delayed for considerable time. Counsel for OPs failed to convince us as to, why there was colonic perforation after hernia repair operation. As per medical literature there are instances of delayed colonic/intestinal perforation. The bowel perforation occurred in this case as a non-intended and very unfortunate result of the hernia operation. Therefore, patient's subsequent condition like chest problems, sepsis could be related back to the bowel perforation.
16. A patient's injuries can be intensified when a physician fails to diagnose, detect or misdiagnoses a ruptured bowel. Time is of the essence when a gastrointestinal perforation occurs. Any delay in treatment cause the condition to worsen. If perforation of the bowel was caused by a doctor's mistake or negligence, he or she may be held liable for the patient's injury and subsequent health risks. The core issue was whether the OP-2 doctor breached his duty of care towards the patient? The OPs failed to foresee the risk of sigmoid perforation after hernia repair. Thus, it was the breach in duty of care, amounting to medical negligence.
17. Another legal issue raised by the counsel for OPs that, Dr. M.R. Rao (OP2) expired on 12.1.1999, after filing his affidavit of evidence. He was not cross-examined. The death of the doctor was reported to the State Commission. Therefore, the complainants have no locus standi. There is no question of bringing the LRs of OP2 on record as the proceedings got abated. The LRs or the hospital cannot take the liability. In a tort of medical negligence, cause of action is personal against the person who has been negligent in discharging his duties and that cause of action do not survive against the estate of the dead person or his legal representatives. It is settled law that no adverse order can be passed against the dead person and no person can be condemned unheard, when LRs cannot come on record. It is also settled law that the court cannot be called upon to make two inconsistent decrees about the same issue, when the decree is joint and in severable, the proceedings vis-à-vis all the defendants get abated. The counsel for further submitted that there is no allegation of negligence against the hospital. The OP relied upon the following judgments for the aforesaid preposition:
(a) 1988 (1) SCC 556 (M. Veerappa Vs. Evelyn Sequeira and Ors.)
(b) 2004 (7) SCC 354 (Shahazada Bi & Ors. Vs. Halimabi (since dead) by her LRs.)
(c) 1986 (1) SCC 118 (Melpurath Sankunni Ezhuthassan Vs. Thekittil Geopalankutty Nair)
(d) 2001 (1) CPJ 45 Balbir Singh Makol Vs. Chairman, Sir Ganga Ram Hospital
(e) Sri Ninge Gowda Vs. M/s. Manipal Northside & Ors. NC Judgment dated 06-07-2009
18. The rival argument on behalf of the appellant/complainant is that the said issue is covered by judgement of Smt. Savita Garg vs. The Director, National Heart Institute - (2004) 8 SCC 56. Secondly, this Commission has already decided this issue on 31.1.2013. Whereas, the counsel for OP submitted that, in the Savita Garg judgement the Court has decided about maintainability on the ground of non-joinder of parties. Also Court held that hospital can produce the treating physician to establish there is no negligence. Therefore, the issue involved in the instant case is entirely different because the treating doctor is not alive to prove his innocence or negligence. The order dated 30.1.2013 was not a final order. Also there is no question of res judicata when there is inherent lack of jurisdiction. Once the cause of action extinguishes against the doctor, it also extinguishes against the hospital, if there is no allegation against the hospital. The counsel for OP further brought our attention towards the Karnataka Medical Council Report, which was inconclusive due to absence of experts there.
19. We are not impressed by the submissions made by the counsel for OP. The question of, whether non-impleadment of the treating doctor is fatal to the very maintainability of the complaint has been exhaustively discussed by the President, Mr. Justice D. K. Jain, in Himanchal Kumari Vs The Govt of NCT Delhi (Revision Petition No 4191 of 2008) decided by this commission on 27/1/2015. The Bench heavily relied upon the following observations in Savita Garg's Case (Supra):
16. The Court finally concluded thus:-
nothing turns in not impleading the treating doctor as a party. Once an allegation is made that the patient was admitted in a particular hospital and evidence is produced to satisfy that he died because of lack of proper care and negligence, then the burden lies on the hospital to justify that there was no negligence on the part of the treating doctor/or hospital,. Therefore, in any case, the hospital which is in better position to disclose that what care was taken or what medicine was administered to the patient. It is the duty of the hospital to satisfy that there was no lack of care or diligence. The hospitals are institutions, people expect better and efficient service, if the hospital fails to discharge their duties through their doctors being employed on job basis or employed on contract basis, it is the hospital, which has to justify and by not impleading a particular doctor will not absolve the hospital of their responsibilities. (Emphasis Supplied)
20. Therefore, we are of the considered view that the hospital has failed to establish, that it is not vicariously liable for the acts of its doctor. The hospital failed to submit evidence establishing, as a matter of law, that the doctors was not under its control and not its agent or ostensibly acting as its agent in providing care to the patient. Therefore, we hold OP-1 hospital as vicariously liable for the negligence of Dr. M. R. Ramachandra Rao (OP2) Compensation:
21. Adverting to the extent of compensation, the complainants had prayed for a total compensation of Rs. 20 Lakhs along with the interest @ 18% from the time of death of patient. For determining the quantum of compensation, we have take into consideration several factors. The deceased patient was of 53 years and had flourishing dental practice with several more years of active practice remaining. The daughter of deceased was eligible for marriage and son was yet to complete his degree. Therefore, the loss cannot be measured in monetary terms alone. It is a fact that the family lost the income from the clinic and medical practice of deceased. Therefore, the adequate compensation has to be determined bearing in mind all these factors.
22. Although the deceased, was a practicing dental surgeon, having good earnings, but, unfortunately, no cogent material has been produced on record to prove the monthly income of the deceased, which makes our task for determining adequate compensation difficult. Therefore we address this question bearing in mind the following observations of the Hon'ble Apex Court in the case of V.Krishna Kumar Vs. State of Tamil Nadu & Ors. JT 2015 (6) SC 503.
"In Taylor v. O' Connor[7], Lord Reid accepted the importance of apportioning for inflation:
It will be observed that I have more than once taken note of present day conditions - in particular rising prices, rising remuneration and high rates of interest. I am well aware that there is a school of thought which holds that the law should refuse to have any regard to inflation but that calculations should be based on stable prices, steady or slowly increasing rates of remuneration and low rates of interest. That must, I think, be based either on an expectation of an early return to a period of stability or on a nostalgic reluctance to recognise change. It appears to me that some people fear that inflation will get worse, some think that it will go on much as at present, some hope that it will be slowed down, but comparatively few believe that a return to the old financial stability is likely in the foreseeable future. To take any account of future inflation will no doubt cause complications and make estimates even more uncertain. No doubt we should not assume the worst but it would, I think, be quite unrealistic to refuse to take it into account at all." In the same case Lord Morris of Borth-y-Gest also upheld the principle of taking into account future uncertainties. He observed:
It is to be remembered that the sum which is awarded will be a once-for- all or final amount which the widow must deploy so that to the extent reasonably possible she gets the equivalent of what she has lost. A learned judge cannot be expected to prophesy as to future monetary trends or rates of interest but he need not be unmindful of matters which are common knowledge, such as the uncertainties as to future rates of interest and future levels of taxation. Taking a reasonable and realistic and common- sense view of all aspects of the matter he must try to fix a figure which is neither unfair to the recipient nor to the one who has to pay. A learned judge might well take the view that a recipient would be ill-advised if he entirely ignored all inflationary trends and if he applied the entire sum awarded to him in the purchase of an annuity which over a period of years would give him a fixed and predetermined sum without any provision which protected him against inflationary trends if they developed." More recently the Judicial Committee of the UK Privy Council in Simon v. Helmot[8] has unequivocally acknowledged the principle, that the lump sum awarded in medical negligence cases should be adjusted so as to reflect the predicted rate of inflation."
23. We further rely upon the discussion made in Himanchal Kumari's judgment (supra) that,
22. In Reshma Kumar and Ors. Vs. Madan Mohan and Anr. (2009) 13 SCC 422, the Honble Supreme Court, reiterated that the compensation awarded under the Act should be just. The Court also identified the factors which should be kept in mind while determining the amount of compensation. The relevant portions of the said judgment read as follows:-
26. The compensation which is required to be determined must be just. While the claimants are required to be compensated for the loss of their dependency, the same should not be considered to be a windfall. Unjust enrichment should be discouraged. This Court cannot also lose sight of the fact that in given cases, as for example death of the only son to a mother, she can never be compensated in monetary terms.
27. The question as to the methodology required to be applied for determination of compensation as regards prospective loss of future earnings, however, as far as possible should be based on certain principles. A person may have a bright future prospect; he might have become eligible to promotion immediately; there might have been chances of an immediate pay revision, whereas in another (sic situation) the nature of employment was such that he might not have continued in service; his chance of promotion, having regard to the nature of employment may be distant or remote. It is, therefore, difficult for any court to lay down rigid tests which should be applied in all situations. There are divergent views. In some cases it has been suggested that some sort of hypotheses or guess work may be inevitable. That may be so.
23. In this regard the following observations of the Supreme Court in Nizams Institute of Medical Sciences Vs. Prasanth S. Dhananka and Ors. (2009) 6 SCC 1 may also be noticed:-
We must emphasize that the court has to strike a balance between the inflated and unreasonable demands of a victim and the equally untenable claim of the opposite party saying that nothing is payable. Sympathy for the victim does not, and should not, come in the way of making a correct assessment, but if a case is made out, the court must not be chary of awarding adequate compensation. The adequate compensation that we speak of, must to some extent, be a rule of thumb measure, and as a balance has to be struck, it would be difficult to satisfy all the parties concerned.
24. Recently in Balram Prasad Vs. Kunal Shah and Ors. (2014) 1 SCC 384, the Honble Supreme Court has again emphasized that it is the duty of the Tribunals, Commissions and the Courts to consider relevant facts and evidence in respect of facts and circumstances of each and every case for awarding just and reasonable compensation.
24. It is on the record that, the complainants paid Rs.15,605/- at Manipal North Side Hospital (OP) and Rs. 2,97,201/- at Manipal Hospital, thus the total hospitalization charges were Rs. 3,12,806/-.In addition, certainly the complainants must have incurred expenditure towards several incidental charges like travel, purchasing of medicines etc. The complainants also suffered mental agony. Therefore, in our view, lumpsum amount of Rs.5,00,000/- would be just and proper compensation towards the mental agony and the hospitalisation expenditure etc.
25. It should be borne in mind that doctors are at the heart of the health care system. Doctors are among the most respected and highly paid professionals. Certainly in 1997, the average income of a good medical practitioner would be atleast around Rs. 2 Lakhs per year. The deceased died at the young age of 53 years. If we consider that he would have been in active dental practice for another 10 more years, he would have earned about Rs.20-22 lakhs. After deducting 1/3 towards the expenses, it will be approximately Rs.14 lakhs as a prospective income. The Hon'ble Supreme Court in the case of V. Krishnakumar vs. State of Tamilnadu & Ors. (2015) 9 SCC 388 , discussed the aspect of inflation while awarding compensation and observed as follows:
"Apportioning for Inflation
23. Inflation over time certainly erodes the value of money. The rate of inflation (Wholesale Price Index-Annual Variation) in India presently is 2 percent as per the Reserve Bank of India. The average inflationary rate between 1990-91 and 2014-15 is 6.76 percent as per data from the RBI. In the present case we are of the view that this inflationary principle must be adopted at a conservative rate of 1 percent per annum to keep in mind fluctuations over the next 51 years.
The formula to compute the required future amount is calculated using the standard future value formula:-
FV = PV x (1+r)n PV = Present Value r = rate of return n = time period In the instant case we find it just and expedient to calculate the inflation at 1% which amounts to:-
FV = PV x (1+r)n PV = 14,00,000/-
r = 1% n = 10 years FV= Rs. 14,00,000x (1.01)10 = Rs.15,46,470.975/- (Rounded off to = Rs. 15,46,471/-).
26. This complaint has travelled a long distance of almost two decades, therefore, we further allow Rs.50,000/- towards the cost of litigation. Therefore, considering foregoing discussion, the total compensation in the instant case will be Rs. 20,96,471/- (Rs.15,46,471/- + Rs. 5,00,000/- + Rs. 50,000/-) rounded to Rs. 21,00,000/-.
27. It is settled law that hospital is vicariously liable for the acts of the doctor vide Savita Garg Vs. National Heart Institute, (2004) 8 SSC 56, it was also followed in case of Balram Prasad v. Kunal Saha, (2014) 1 SCC 384 . Therefore, considering the facts and circumstances of instant case and on the basis of forgoing discussion, we allow this first appeal. The OP-1 Manipal North side Hospital, Bangalore directed to pay the complainants total sum of Rs. 21,00,000/- within four weeks from the date of receipt of this order, failing which, the said amount shall carry interest @ 9% per annum from the date of this order, till its realisation.
......................J D.K. JAIN PRESIDENT ...................... DR. S.M. KANTIKAR MEMBER ...................... M. SHREESHA MEMBER