State Consumer Disputes Redressal Commission
Sanjay Goyal S/O Om Prkash Goyal vs M/S Lineage Healthcaare Limited on 5 April, 2016
Daily Order BEFORE THE CONSUMER DISPUTES REDRESSAL COMMISSION,RAJASTHAN,JAIPUR BENCH NO.1 COMPLAINT CASE NO: 18 /2015 Sanjay Goyal s/o Om Prakash Goyal r/o 63/78 Heera Path,Mansarovar, Jaipur. Vs. M/s.Lineage Healthcare Ltd. through Chairman & MD regd office at F 2/7, Okhla Industrial Area, Phase I, New Delhi & ors. Date of Order 5.4.2016 Before: Hon'ble Mrs. Justice Nisha Gupta- President Hon'ble Mr.Kailsh Soyal -Member
Mr.Lokesh Atray counsel for the complainant Mr.Anuroop Singh counsel for the opposite parties BY THE STATE COMMISSION ( PER HON'BLE MRS. JUSTICE NISHA GUPTA,PRESIDENT):
This original complaint has been filed with the 2 contention that wife of the complainant Smt.Pooja Goyal aged 28 years was on her family way since May 2014. She was under continuing observation of Dr. Priya Gupta. On 5.1.2015 wife of complinant Smt.Pooja Goyal visited the hospital with the complaint of fever and symptoms of cold and Dr.Priya Gupta advised to take antipyretic medicines so that her fever may come down. Thereafter on 8.1.2015 Smt.Pooja Goyal was admitted to the hospital of opposite party namely Cocoon Hospital for delivery of the child and she delivered a male child on 8.1.2015. Thereafter also she continued to sustain fever which later on gone higher but opposite party assured the complainant that there is nothing to worry about his wife and all will be perfect. When fever of the complainant's wife did not come down for another days the complainant requested the hospital to discharge Smr.Pooja Goyal and to refer her to some other hospital but still the opposite party gave assurance to him that his wife will be cured completely within few days. On 12.1.2015 the complainant consulted the matter with Narayana Hridayalaya Hospital, Jaipur with all test reports and history and doctor of Narayana Hridayalaya Hospital telephonically informed the Cocoon Hospital that there is suspect of symptoms that Smt.Pooja Goyal might be suffering from Swine flu fever and thorough examination in this regard is required 3 immediately. On hearing this the opposite party in haphazard manner immediately discharged Smt.Pooja Goyal. She was taken to Narayana Hridayalaya Hospital by the family members and there after test it was found that she is positive for swine flu and treatment was started but she died at 10.00 a.m. on 15.1.2015. The further contention of the complainant in the original complaint is that at the relevant time the swine flu cases were common in the city and even the administrative authorities have recommended that if common cold is persistent the patient should undertake test for swine flu but the doctors of the opposite party did not even bothered to get her examined for the test of swine flu and due to highly negligent act of the opposite party the wife of the complainant died. He suffered mental agony, loss of love and affection. He has also spent Rs.2,50,000/- on treatment and on these averments this complaint has been submitted.
In reply to the complaint the contention of the opposite party is that the complaint is misconceived, incorrect and an abuse of the process and should be rejected summarily. The complainant has concealed the material facts. There is no evidence to show any deficiency of service on the part of the opposite party. On 5.1.2015 when Smt.Pooja Goyal visited the 4 hospital she was not having any fever. She was admitted in hospital on 8.1.2015 and at that time also she was not having any fever. A Nursing Clinic Follow Up was maintained which shows that on 8.1.2015 her temperature was normal and only on 9.1.2015 after 7.00 p.m. she has developed temperature which was recorded as 101.1 F. Thus the deceased has suffered fever for the first time in the evening of 9.1.2015 at 7.00 p.m. and on 10.1.2015 she was referred to a physician. Chest x-ray was conducted which showed pneumonic patch and accordingly she was medicated. Thereafter when condition of the patient did not improve after adequate care, she was referred to super specialist pulmonologist who visited the patient on 12.1.2015 and has diagnosis that the patient could have swine flu and she was advised to be shifted to higher centre and thereafter she has been shifted to Narayana Hridayalaya Hospital. It has been further replied that the Director of Medical and Health Services, Rajasthan,Jaipur has issued guidelines with respect to swine flu that if there are four cumulative symptoms - (I) Severe Headache (ii) High Grade fever (iii) Sore throat and (iv) running nose, then the doctors are directed to initiated treatment in respect to swine flu and undoubtedly in the present case the patient was not having these symptoms cumulatively on or before the date of operation hence, there was no need to 5 conduct any test for swine flu for the opposite party. It has been further contended that the opposite party has tendered best care and precaution to the patient. There is no infirmity on the part of the opposite party and complaint should have been rejected.
In support of the contentions raised by the parties the complainant has submitted his affidavit whereas the opposite party has submitted affidavit of Dr.Suhasani Jain, Sr.Manager of Lineage Health Care Ltd.,Jaipur. In affidavits same contentions are re-agitated.Both the parties have also submitted relevant documents.
Heard the counsel for the parties and perused the record of the case.
The complainant has come with a case that Smt.Pooja Goyal was suffering from fever since 5.1.2015 and it persisted till her discharge from the hospital but this fact has been withdrawn by the counsel for the complainant during the course of arguments and he has clearly accepted the fact that on 9.1.2015 the patient developed fever for the first time. It has also been contended in the complaint that inspite of fever 6 surgery has been conducted on 8.1.2015 but this fact also has not been agitated by the counsel for the complainant during the course of arguments. The counsel for the opposite party has contended that once facts have been set up in the complaint cannot be withdrawn and the contention of the complainant should be considered in the light of the facts set up in the complaint.
There is no dispute about this preposition and it seems that to set up a grave case it has been pleaded that the patient was suffering from fever since 5.1.2015 whereas Anx. 2 prescription of the Cocoon Hospital dated 5.1.2015 speaks that patient has complained only for cough on that day and even at the time of surgery she was not having any fever but still the facts remain the same that the deceased Pooja Goyal developed fever on 9.1.2015 at 7.00 p.m. The contention of the opposite party is that on 10.1.2015 she was referred to physician and on 12.1.2015 she was referred to pulmonologist and the other contention of the opposite party is that she was not having the symptoms for swine flu hence, no test was necessary to ascertain that whether she was 7 suffering from swine flu or not and further the contention of the counsel for the opposite party is that it was only an error of judgment and the doctors had acted with full care. His further contention is that if there is any difference between the diagnosis and treatment of two doctors, it could not be termed as negligence or if two courses are available and one course is adopted, it cannot be held liable for medical negligence.
There is no dispute about these prepositions but here in the present case admitted case of both the parties is that the deceased had developed fever on 9.1.2015 at 7.00 p.m. and complainant has rightly relied upon the report published by World Health Organisation on pregnancy and pandemic influenza A (H1N1) in which it has been stated that in compare to non-pregnant women there is 4-5 times more risk to develop severe disease in pregnant women and this risk is highest in the third trimester. Signs and symptoms of H1N1 infections were also narrated that there can be mild upper respiratory tract infection to severe pneumonia and symptoms could include sudden fever, cough etc. Thus the studies on the subject shows that pregnant women are more prone to develop severe disease including H1N1 disease and symptoms also suggest that fever, cough are also the symptoms of H1N1 i.e. swine flu and here in 8 the present case as per Anx.2 prescription which is an admitted document by both the parties that Smt.Pooja Goyal was complaining cough since 5.1.2015. Thereafter she develop fever on 9.1.2015 and she was remained in the care of opposite party till 12.1.2015 but inspite of this the opposite party has not suggested any test to rule out the possibility of having swine flu inspite of the fact that on 10.1.2015 the physician has diagnosis that she was having puenmonic patches and on 11.1.2015 nothing has been done for further diagnosis and only on 12.1.2015 the pulmonologist gave a diagnosis that the patient could have swine flu.
The counsel for the opposite party has based his contention on the directions issued by the Medical and Health Department on 3.2.2015 that if there are four cumulative symptoms then the doctors should prescribe medicine for swine flu. There is no dispute about these directions but admittedly these directions are for normal person not having any other complication but here in the present case admittedly the deceased was pregnant. She delivered a child on 8.1.2015 and she was in post-operative care with the opposite party and as per report of World Health Organization there was much higher risk to develop severe disease and we cannot be oblivious to the fact 9 that on the relevant time swine flu was commonly spread in the city. Thus, it was much more responsibility of the opposite party to have the test to ascertain that whether the patient is suffering from swine flu or not and admittedly she has not been given any treatment for swine flu since 9.1.2015 to 12.1.2015 and counsel for the complainant has relied upon (2015) 9 Supreme Court Cases 388 V.Krishnakumar Vs. State of Tamilnadu and the court held has under:
"This is important because whether the consequences were foreseeable or not must be measured with reference to knowledge at the date of the alleged negligence not with hindsight. Thus, in the present case the onset of ROP was reasonably foreseeable to the respondent doctors."
In the light of the above , in the present case also the consequences are foreseeable by the opposite party that the deceased might be suffering from swine flu and there are much more chances for the same as the disease was commonly spread in the city and hence, this was a gross deficiency in service for not referring the patient for the appropriate test to ascertain the fact that whether she was suffering from swine flu or not. Reliance could also be placed on V.P.Shantha's case 10 (1995) 6 SCC 651 where it has been held as under:
"That a medical practitioner is expected to bring a reasonable degree of skill and knowledge and must also exercise a reasonable degree of care and caution in treating a patient."
Further reliance could be placed on (1998) 4 SCC 39 Spring Meadows Hospital Vs. Harjot Ahluwalia where it has been held as under:
" Very often in a claim for compensation arising out of medical negligence a plea is taken that it is a case of bona fide mistake which under certain circumstances may be excusable,but a mistake which would tantamount to negligence cannot be pardoned. In the former case a court can accept that ordinary human fallibility precludes the liability while in the later the conduct of the defendant is considered to have gone beyond the bounds of what is expected of the skill of a reasonably competent doctor."
The opposite party has relied upon AIR (2010) SC 1050 Kusum Sharma Vs. Batra Hospital where in para 94 some basic principles were explained while dealing with the case of 11 negligence which are as under:
"I. Negligence is the breach of a duty exercised by omission to do something which a reasonable man,guided by those considerations which ordinarily regulated the conduct of human affairs would do or doing something which a prudent and reasonable man would not do.
II. Negligence is an essential ingredient of the offence.The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.
III. The medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires.
IV. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
V. In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.12
VI. The medical professional is often called upon to adopt a procedure which involves higher element of risk but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence.
VII. Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available,he would not be liable if the course of action chosen by him was acceptable to the medical profession.
VIII. It would not be conductive to the efficiency of the medical profession if no doctor could administer medicine without a halter round his neck.
IX. It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessary harassed or humiliated so that they can perform their professional duties without fear and apprehension.
The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical 13 professionals/hospitals particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners.
XI. The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals."
Much stress has been laid on point no. II, V and VII but as considered earlier there was no difference of opinion between the doctors as no test has been undertaken to ascertain the positivity of the swine flu and this is not the case where out of two courses one course has been adopted. It was also not a case of error of judgment but it was a clear case that competent practitioners have not adopted reasonable standard of diagnosis. It was expected from the opposite party to prescribe the test for swine flu and immediately the medicines for the same should have been started which course is not adopted by the opposite party. Thus, it is a case where a reasonable degree of care and caution in treating the patient has not been exercised. Hence, in view of the above it could safely be concluded that opposite party is negligent and was deficient in the service.
14Now the question remains that what should be reasonable and fair compensation in the matter. Both the counsels for the parties has not assisted much on the issue.
Grant of compensation under the law of torts is based on the principle of restitutio 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.
In the light of above the guidance could also be taken from the judgment passed by the apex court in civil appeal no. 2867 of 2012 Dr.Balram Prasad Vs. Dr.Kunal Saha where "adequate compensation" is explained as under:
"We must emphasise 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 15 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."
Facts in the present case goes to show that the deceased was a 28 years well educated lady having children who has died due to negligence of the opposite party. There is nothing on record to show the income of the deceased but definitely she was contributed to the household affairs and in Balram (supra) the apex court has held as under:
" In India the courts have 210 recognized that the contribution made by the wife to the house is invaluable and cannot be computed in terms of money. The gratuitous services rendered by the wife with true love and affection to the children and her husband and managing the household affairs cannot be equated with the services rendered by others. A wife/mother does not work by the clock. She is in the constant attendance of the family throughout the day and night unless she is employed and is required to attend the employer's work for particular hours. She takes care of all the requirements of the husband and children including cooking of food, washing of clothes etc. She teaches small children and provides invaluable guidance to them for their future life.16
A housekeeper or maidservant can do the household work such s cooking food,washing clothes and utensils,keeping the house clean etc. but she can never be a substitute for a wife/mother who renders selfless service to her husband and children."
From the guidence taken from the above judgment we are of the considered opinion that the deceased was a young educated lady having children and now the family is deprived from her services as wife and mother. Hence, award of Rs. 25 lakhs is just and reasonable compensation in this case. The opposite party is directed to pay the amount within 90 days from the date of order otherwise thereafter it will carry interest @ 12% p.a. till its realization.
It is also apposite to mention that the deceased was a young lady having children who are the real consumers before this Forum who will suffer loss of love, affection and care of the mother throughout their life hence, out of the amount of award Rs. 15 lakhs be deposited in the fixed deposit with any nationalized bank in the name of the children equally till they attains majority with the stipulation that fixed deposit should 17 not be encashed without the permission of this Forum. In these terms the complaint is allowed.
(Kailash Soyal) (Nisha Gupta ) Member President nm