National Consumer Disputes Redressal
Andhra Mahila Sabha & Anr. vs K. Durdaiah Dinesh & Anr. on 26 November, 2019
Author: R.K. Agrawal
Bench: R.K. Agrawal
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 168 OF 2013 (Against the Order dated 26/09/2012 in Complaint No. 6/2000 of the State Commission Andhra Pradesh) 1. ANDHRA MAHILA SABHA & ANR. DESHMUKH HOSPITAL AND RESEARCH CENTRE, VIDYANAGAR, HYDERABAD-500044 ANDHRA PRADESH 2. DR. VARUN RAJU ANDHRA MAHILA SABHA DURGABAI, DESHMUKH HOSPITAL AND RESEARCH CENTRE, VIDYANAGAR, HYDERABAD-500044 ...........Appellant(s) Versus 1. K. DURDAIAH DINESH & ANR. S/O. POCHA MALLAIAH, R/O. 6-30, SUBASH NAGAR, MALLAPUR, HYDERABAD-500076 A.P 2. K. MALLAMMA @ K. DWARAKA R/O. 6-30, SUBASH NAGAR, MALLAPUR, HYDERABAD-500076 ANDHRA PRADESH 3. ORIENTAL INSURANCE CO. LTD. . ...........Respondent(s) FIRST APPEAL NO. 657 OF 2013 (Against the Order dated 26/09/2012 in Complaint No. 06/2009 of the State Commission Andhra Pradesh) 1. K. DURGAIAH @ DINESH & ANR. S/O. POCHAMALLAIAH, H NO. 6-30, SUBHASH NAGAR, MALLAPUR, HYDERABAD-76 ANDHRA PRADESH ...........Appellant(s) Versus 1. ANDHRA MAHILA SABHA DURGABAI DESMUKH HOSPITAL AND RESEARCH CENTRE, & ANR. REPRESENTED BY ITS SECRETARY, VIDYANAGAR, HYDERABAD-44 ANDHRA PRADESH ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE R.K. AGRAWAL,PRESIDENT HON'BLE MRS. M. SHREESHA,MEMBER For the Appellant : For the Hospital & Doctor : Ms. P.V. Padmaja, Advocate and Mr. C.V.V. Prasad, Advocate for Mr. J. Prabhakar, Advocate For the Respondent : For the Complainants : Mr. D. Devender Rao, Advocate and Mrs. Radha, Advocate For the Insurance Company : Mr. K. V. Rao, Advocate Dated : 26 Nov 2019 ORDER SMT. M. SREESHA, MEMBER
1. Aggrieved by the order in CC No.6 of 2009 dated 26-09-2012 passed by the Andhra Pradesh State Consumer Disputes Redressal Commission at Hyderabad (in short, 'The State Commission'), Andhra Mahila Sabha Durgabai Deshmukh Hospital & Research Centre and Dr. Varun Raju (hereinafter referred to as 'The Hospital' and the 'treating doctor') preferred F.A.No.168 of 2013 and the Complainants preferred F.A.No.657 of 2013 respectively. Since both these Appeals arise out of a common impugned order, they are being disposed of by this common order.
2. By the impugned order, the State Commission has allowed the Complaint in part directing the Hospital and the treating doctor to pay an amount of Rs.5,00,000/- with interest @ 5% p.a. from the date of Complaint till the date of payment, together with costs of Rs.7,000/-.
3. The facts material to the case are that the Complainants' son (hereinafter referred to as 'The Patient'), aged 22 years and an MBA student was suffering from abdominal pain and fever for three days prior to 26-12-2007 and he was admitted to the Hospital on the intervening night of 26/27-12-2007. It is averred that the Patient was diagnosed to be suffering from Appendicitis and after taking the opinion of the general surgeon, Appendectomy was performed on 28-12-2007. Thereafter, the Patient suffered from fever and chills on 30-12-2007, suffered abdominal pain on 31-12-2007 and, on 01-01-2008, the Patient was restless and he stopped passing urine. It is pleaded that the treating doctor who performed the operation was not available from 31-12-2007 to 01-01-2008.
4. It is further averred that the nursing staff of the Hospital could not relieve the Patient of his problem and the treating doctor, admitting his lapse, sought for a second opinion and volunteered to do a second surgery. It is also averred that the oxygen cylinder which was connected to the Patient was not having oxygen and when it was found that the oxygen pipeline in the ward did not have oxygen supply, there was hectic activity which was witnessed by the media and the journalists. The Patient was declared dead on 03-01-2008 and an FIR 1 of 2008 was registered on the same day. It is pleaded that had the treating doctor been available instead of being busy attending New Year celebrations, he could have treated the Patient of peritonitis instead of blaming that the Patient had already undergone hemorrhoidectomy elsewhere which led to the complications. The Complainants stated that hemorrhoidectomy was completely healed and it was only on account of the negligence of the Hospital and the treating doctor that the Patient had died. It was stated that the Patient had joined ICICI Bank with minimum salary of Rs.20,000/- per month and he would have survived till mid 70's given the family background and the life expectancy. Hence, the Complaint seeking direction to the Hospital and the treating doctor to pay compensation of Rs.40,00,000/- with interest from the date of filing of the Complaint till the date of realisation.
5. The Hospital filed their Written Version stating that it is a charitable organisation; that it is not engaged in selling any service or goods with any profit motive; that the Patient is not a 'Consumer' as against the Hospital; that the Hospital is maintained by Andhra Mahila Sabha Trust which is a Society registered under the Societies Act and run on no profit no loss basis; that the Patient was admitted on 27-12-2007, was seen by the general surgeon, was diagnosed to be having acute appendicitis and was taken for surgery in an emergency condition; the Patient's attendants were informed about the seriousness of the Patient's condition; the histopathology reports confirmed the diagnosis of acute gangrenous appendicitis; during the postoperative period the treating doctor examined the Patient and only after being satisfied with the clinical status, the Patient was shifted to the general ward; that the Patient developed mild distension of the abdomen, vomitings and loose motions and since it was a case of acute gangrenous appendicitis peritonitis, paraylitic ileus was suspected; the clinical progress of the Patient was discussed and the Patient was treated as per normal standards in acute medical care unit; the treating doctor obtained the opinion of Surgical Gastroenterologist, Dr. D.V.L. Narayana Rao and a laparatomy was planned; that the Patient developed aspiration of gastric contents into his lungs and developed respiratory arrest; that the surgical team and the staff of acute medical care unit put their best efforts to recover the Patient, but in vain; that the Hospital had obtained an Insurance Policy from the Oriental Insurance Company Ltd. valid from 24-06-2007 to 23-06-2008 and has averred that there is no negligence on behalf of the Hospital or the treating doctor and sought dismissal of the Complaint against them.
6. The treating doctor adopted the Written Version filed by the Hospital.
7. Based on the evidence adduced and the pleadings put forward, the State Commission allowed the Complaint in part with the afore-noted directions.
8. Learned Counsel appearing for the Appellants/Hospital and the treating doctor vehemently contended that despite their best efforts post-operative complications have occurred only because the Patient had a history of hemorrhoidectomy and that the Patient was managed conservatively which is a standard protocol. He drew our attention to the Hospital treatment record wherein the Patient was given IV fluids, antibiotics and Rlyes tube was also inserted. Dr. Narayana Rao, the Surgical Gastroenterologist was also consulted and it was decided to perform a laparatomy after stabilizing the Patient. There was intestinal obstruction and this was noted by the treating doctor after examining the abdominal girth. The Learned Counsel vehemently contended that on 02-01-2008 i.e. four days subsequent to the surgery, the Patient was advised to go for blood investigations but he was not willing to do so due to monetary problems. Serum Lectate investigation was advised but the Patient's attendants did not adhere to their advice. It was submitted that Serum Lectate investigation was advised only to rule out acute gangrenous intestinal obstruction.
9. The Learned Counsel appearing for the Complainants who is seeking enhancement vehemently contended that the peritonitis which occurred as a postoperative complication is only on account of the Appendectomy which was performed negligently by the treating doctor and drew our attention to the interrogatories and the deposition by the treating doctor wherein the doctor had admitted that nowhere in the case sheet, it was mentioned that the Patient was in a critical condition; that the postoperative anaesthetic notes were not appended to the case sheet; that SPO2 level were not mentioned in this case sheet; that at the bottom of page 64 of the case sheet recorded on 01-01-2008 it was noted that the Patient had vomitings, abdominal pain and distension and it was specifically mentioned that the blood should be sent for testing for PCR and KOCHES infection but the report was not part of the case sheet.
10. It is also the case of the Complainants that the CT abdomen was not done. The Learned Counsel for the Complainants also further submitted that the X-ray of the abdomen was done on 01-01-2008 belatedly; that the CT of the abdomen was never advised and also that Tremedol was given along with Voveron which caused drowsiness in the Patient which ought not to have been done when the Patient had history of vomiting under sedation.
11. The question of medical negligence has to be decided on the basis of the principle of 'duty of care' as laid down by the Hon'ble Supreme Court in a catena of judgements. The Hon'ble Supreme Court in Dr. S.K. Jhunjhunwala Vs. Mrs. Dhanwanti Kumari & Anr. (2019) 2 SCC 282, has observed that negligence has to be decided on the touch stone whether the treating Doctor has exhibited reasonable degree of care and adhered to the normal practice of medical parlance. Since the formulation of the Bolam test, English Courts have formulated a significantly nuanced doctrine pertaining to the standard of care. In Halsbury's Laws of England the degree of skill and care required by a medical practitioner is detailed as follows:-
"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 cases, 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 practices 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."
A doctor has a legal duty to take care of his patient. Whenever a patient visits a doctor for treatment there is a contract by implication that the doctor will take reasonable care to treat him. If there is a breach of that duty and if it results in injury or damage, the doctor will be held liable. The doctor must exercise a reasonable degree of care and skill in his treatment; but at the same time he does not and cannot guarantee cure.
(Emphasis Supplied)
12. The Hon'ble Supreme Court in Malay Kumar Ganguly v. Dr. Sukumar Mukherjee, (2009) 9 SCC 221, case has preferred Bolitho test to Bolam test. The Supreme Court redefined medical negligence saying that the quality of care to be expected of a medical establishment should be in tune with and directly proportional to its reputation. The decision also says that the court should take into account Patient's legitimate expectations from the hospital or the concerned specialist doctor.
13. It is not in dispute that the Patient underwent Appendectomy on 28-12-2007 at 11:30 A.M. with spinal anaesthesia. A perusal of the case sheet evidences that the Patient had postoperative complications with vomitings and fever three days after the surgery. The case sheet also shows that the Patient had abdominal pain which was recorded in the notes on 31-12-2007 at 09:30 P.M.. It is Complainants' case that the treating doctor did not attend to the Patient in the crucial two days subsequent to the surgery i.e. on 30-12-2007 and 31-12-2007 as he was attending New Year celebrations. The case sheet itself evidences that the treating doctor had not seen the Patient and advised an X-ray or a CT Scan of the abdomen in the first two days of complications considering the fact that the Patient was suffering from fever and vomiting specifically keeping in view that admittedly the Patient had a history of hemorrhoidectomy. The treatment record shows that the X-ray of the abdomen was done on 01-01-2008 which ruled out any perforation but parylitic ileus was not ruled out. At this juncture, it is relevant to note that the opinion of Dr. D.V. L. Narayana Rao taken on 02-01-2008 who is the Surgical Gastroenterologist subsequent to postoperative complications, does not state about 'laparatomy' though it is the treating doctor's case that laparotomy was advised and that it could not be performed as the Patient was in a critical condition and the attendants did not cooperate.
14. Though we find force in the contention of the treating doctor that they had rightly taken the opinion of the Surgical Gastroenterologist, it is seen from the record that this was belatedly done only on 02-01-2008. Keeping in view that the Hospital and the treating doctor have stated that the Patient's history of hemorrhoidectomy was responsible for the postoperative complications, there are no substantial grounds given as to why an X-ray or a second opinion was not taken on 31-12-2007 itself when the Patient was suffering from fever, vomitings and loose motions. Further, it is not written in the case sheet that the Patient was a high risk Patient or that he had arrived in a critical condition. There are no such notings by the treating doctor on 31-12-2007. Though we do find substance in the submission of the treating doctor that CT abdomen was not advised due to clinical condition of the Patient, the fact remains that even the X-ray was done belatedly on 01-01-2008 to rule out any perforation. The case sheet shows that the Patient had fever with chills on 30-12-2007 itself. At the cost of repetition, it is not understood as to why the opinion of the Surgical Gastroenterologist or the X-ray was not done when the Patient was suffering from fever and chills subsequent to the Appendectomy when the case sheet evidences that on 01-01-2008, the Patient was suffering from vomitings, abdominal pain, distension and was very restless.
15. Apart from these reasons, the admission of the treating doctor in his deposition that the postoperative anaesthetic notes were not appended to the case sheet; that the treatment record does not show the SPO2 values; that the report of PCR KOCHES infection was not appended to the case sheet and also that the X-ray of the abdomen was done on 01-01-2008, we are of the considered view that the treating doctor did not adhere to the standards of normal medical parlance. When a person was vomiting, giving sedatives like Tremedol and Voveron would increase the risk for aspiration. It is also relevant to mention that the case sheet is silent about the time when the intubation of the Patient was done to prevent cyanosis. With respect to the contention of the Learned Counsel for the Complainants that there was no oxygen in the cylinders at the crucial time, we hold that this contention is not supported by any evidence.
16. It is pertinent to mention that the case sheet is silent about any pre anaesthetic assessment which was done and pre investigation tests which are relevant considering the Patient's history of hemorrhoidectomy.
17. Keeping in view the catena of judgments laid down by the Hon'ble Apex Court with respect to the 'duty of care' and 'patient centric approach' to be adhered to by the Hospitals and the treating doctors and having regard to the fact that there is no noting on the case sheet by the treating doctor in the crucial period of two days subsequent to the surgery when admittedly the Patient had postoperative complications like fever, chills and abdominal distension, the second opinion of the Gastroenterologist was not taken till 02-01-2008, X-ray was not done till 01-01-2008 to rule out any perforation, the case sheet is silent about the time when the intubation was done, there are no cogent reasons given as to why an immediate Nasogastric Tube post operatively was not placed to relieve gastric pressure specially when the Patient had complained of bloating subsequent to an abdominal surgery, the Nasogastric Tube would have sucked out the gastric contents to decrease incident of aspiration pneumonitis thereby leading to hypoxia and/or respiratory failure, that the anaesthetic notes are not appended to the case sheet, we are of the considered view that the ratio laid down by the Hon'ble Supreme Court in Savita Garg Vs. National Heart Institute, (2004) 8 SSC 56, squarely applies to the facts of this case as the onus in discharging the burden with respect to the cause and reason for the death shifts to the Hospital and the treating doctor which they had failed to discharge. Hence, we do not find any illegality or infirmity in the order of the State Commission holding the Opposite Parties liable. The FA No.168 of 2013 is, therefore, dismissed.
18. Now, we address ourselves to the First Appeal filed by the Complainants seeking enhancement.
19. For the reasons stated in the Application seeking Condonation of Delay filed by the Complainants, the delay of 281 days is condoned.
20. Learned Counsel appearing for the Complainants submitted that the Patient is a young boy of 22 years who has completed his MBA and was working in ICICI Bank with Rs.20,000/- as salary and that though the prayer in the main Complaint was for a sum of Rs.40,00,000/-, the State Commission has erred in awarding only a meagre amount of Rs.5,00,000/-.
21. The Hon'ble Supreme Court, while discussing the aspect of compensation in Lata Wadhwa & Ors. Vs. State of Bihar, (2001) 8 SCC 197, Malay Kumar Ganguly v Sukumar Mukherjee (2009) III SCC 663 and in Arun Kumar Manglik Vs. Chirayu Health & Medicare Private Limited & Anr., 2019 (3) SCALE 333, has laid down that compensation should be awarded based on the principle of restitutio in integrum.
22. The Hon'ble Supreme Court in V. Krishnakumar Vs State of Tamil Nadu & Ors. (2015) 9 SCC 388 has observed as follows:
"19. The principle of awarding compensation that can be safely relied on is restitutio in integrum. This principle has been recognised and relied on in Malay Kumar Ganguly v. Sukumar Mukherjee and in Balram Prasad case, in the following passage from the latter: (Malay Kumar Ganguly case, SCC p. 282, para 170) "170. Indisputably, grant of compensation involving an accident is within the realm of law of torts. It is based on the principle of restitution in integrum. The said principle provides that a person entitled to damages should, as nearly as possible, get that sum of money which would put him in the same position as he would have been if he had not sustained the wrong. (See Livingstone v. Rawyards Coal Co)"
An application of this principle is that the aggrieved person should get that sum of money, which would put him in the same position if he had not sustained the wrong. It must necessarily result in compensating the aggrieved person for the financial loss suffered due to the event, the pain and suffering undergone and the liability that he/she would have to incur due to the disability caused by the event."
"20. .......In Spring Meadows Hospital and Another v. Harjol Ahluwalia [1998 4 SCC 39] this court acknowledged the importance of granting compensation to the parents of a victim of medical negligence in lieu of their acute mental agony and the lifelong care and attention they would have to give to the child. This being so, the financial hardship faced by the parents, in terms of lost wages and time must also be recognized. Thus, the above expenditure must be allowed.....
23. At this juncture, we further find it a fit case to rely on the judgement of the Hon'ble Supreme Court in Nand Kishore Prasad Vs. Dr. Mohib Hamidi & Ors., 2019 (6) SCC 512, in which the Hon'ble Supreme Court has relied on all the parameters laid down by the Constitution Bench in National Insurance Company Ltd. Vs. Pranay Sethi & Ors., (2017) 16 SCC 680, for the grant of compensation in respect of claims arising out of the Motor Vehicles Accidents, as just and proper compensation has to be determined on the foundation of fairness, reasonableness and equitability on acceptable legal standards because such determination can never be in arithmetical exactitude. The Court held as under:
"55. Section 168 of the Act deals with the concept of "just compensation" and the same has to be determined on the foundation of fairness, reasonableness and equitability on acceptable legal standard because such determination can never be in arithmetical exactitude. It can never be perfect. The aim is to achieve an acceptable degree of proximity to arithmetical precision on the basis of materials brought on record in an individual case. The conception of "just compensation" has to be viewed through the prism of fairness, reasonableness and non-violation of the principle of equitability. In a case of death, the legal heirs of the claimants cannot expect a windfall. Simultaneously, the compensation granted cannot be an apology for compensation. It cannot be a pittance. Though the discretion vested in the tribunal is quite wide, yet it is obligatory on the part of the tribunal to be guided by the expression, that is, "just compensation". The determination has to be on the foundation of evidence brought on record as regards the age and income of the deceased and thereafter the apposite multiplier to be applied. The formula relating to multiplier has been clearly stated in Sarla Verma, (2009) 6 SCC 121 and it has been approved in Reshma Kumari (2013) 9 SCC 65. The age and income, as stated earlier, have to be established by adducing evidence. The tribunal and the courts have to bear in mind that the basic principle lies in pragmatic computation which is in proximity to reality. It is a well-accepted norm that money cannot substitute a life lost but an effort has to be made for grant of just compensation having uniformity of approach. There has to be a balance between the two extremes, that is, a windfall and the pittance, a bonanza and the modicum. In such an adjudication, the duty of the tribunal and the courts is difficult and hence, an endeavour has been made by this Court for standardisation which in its ambit includes addition of future prospects on the proven income at present. As far as future prospects are concerned, there has been standardisation keeping in view the principle of certainty, stability and consistency. We approve the principle of "standardisation" so that a specific and certain multiplicand is determined for applying the multiplier on the basis of age."
(Emphasis supplied)
24. In the instant case, Exhibits A1, A2 and A3 filed before the State Commission evidence that the Patient was employed by ICICI Bank in the Probationary Officers Progragmme (POP) earning Rs.20,000/- per month. Having regard to the fact that the Patient was only 22 years old and had gone for a simple Appendectomy and was working in ICICI Bank earning Rs.20,000/- per month, keeping in view the life expectancy and also the loss of love and affection of the parents and the mental agony suffered, we are of the considered view that the amount can be enhanced to meet the ends of justice to an equitable amount of Rs.10,00,000/-. The Appeal preferred by the Complainants is allowed in part and the order of the State Commission is modified enhancing the compensation from Rs.5,00,000/- to Rs.10,00,000/-.
25. The Learned Counsel appearing for the Insurance Company vehemently contended that the Insurance Company ought not to have been impleaded as there is no privity of contract between the Complainants and the Insurance Company and that the National Commission has deleted the name of the Insurance Company in the matter of Bajaj Allianz General Insurance Company Ltd. Vs. Devender Mohan Anand & Ors., FA No.2081 of 2018, order dated 09-04-2019. He submitted that the Insurance Company is not a proper and necessary party as the adjudication is between the Complainants and the Hospital and the treating doctor and he sought for deletion from the array of parties. Having regard to the fact that the dispute is of medical negligence and admittedly a professional indemnity policy was issued by the Oriental Insurance Company to the Hospital covering the period 24-06-2007 to 23-06-2008 for an insured amount of Rs.50,00,000/- limiting any one accident to Rs.12,50,000/-, we are of the considered view that the stand of the Insurance Company that there is no privity of contract between the Complainants and the Insurance Company and, hence, they should not be included in the array of the parties, is untenable. The fact remains that the Hospital is indemnified by the Insurance Company and when any medical negligence is alleged against the Hospital and the treating doctor it is the Insurance Company which indemnifies the loss as per the terms & conditions of the policy and, therefore, we are of the view that the Insurance Company is a necessary party. In a catena of judgments, the Hon'ble Supreme Court has directed the Insurance Company to pay in the matters of medical negligence. Vide an order dated 07-11-2019, IA No.1449 of 2013 which has been filed by the Appellants in FA No.168 of 2013 seeking impleadment of Oriental Insurance Company Ltd. was allowed as it was observed that it is a necessary party to be impleaded.
26. The Learned Counsel appearing for the Insurance Company apart from reiterating the stand of the doctor and the Hospital drew our attention to Clause 10.11 which reads as under:
"In the event of Liability arising under the Policy or the payment of a claim under this Policy, the limit of indemnity per any one year under the policy shall get reduced to the extent of quantum of liability to be paid or actual payment of such claim. Under no circumstances, it shall be permissible to reinstate the aggregate limit of indemnity to the original level even on payment of extra premium."
In the instant case, keeping in view the facts and circumstances, the compensation is being enhanced from Rs.5,00,000/- to Rs.10,00,000/- to meet the ends of justice. The interest awarded by the State Commission is retained. It is directed that the Insurance Company shall pay the amount covered under the Policy to the Complainants within four weeks from the date of receipt of copy of this order failing which the amount shall attract interest @10% p.a. from the date of filing of the Complaint till the date of realization. The balance, if any, shall be paid by the Hospital.
27. Vide order dated 28-02-2013, the operation of the impugned order was stayed subject to deposit of 50% of the decretal amount with the State Commission. On 10-10-2013, a submission was made by the Counsel appearing for the Opposite Parties that 50% of the decretal amount has been deposited in F.A.No.168 of 2013 with the State Commission. The same was directed to be released to the Complainants. Needless to add, this amount will be reimbursed by the Insurance Company to the Hospital and the balance amount shall stand adjusted in the decretal amount, which shall be paid to the Complainants. The balance amount, if any, after excluding the Policy amount shall be borne by the Hospital.
28. In the result, FA No.168 of 2013 is dismissed and FA No.657 of 2013 is allowed in part modifying the order of the State Commission to the extent of enhancing the compensation from Rs.5,00,000/- to Rs.10,00,000/- while confirming the rest of the order of the State Commission. No order as to costs.
......................J R.K. AGRAWAL PRESIDENT ...................... M. SHREESHA MEMBER