Delhi District Court
Dr. G S Chandraker vs Union Of India on 27 January, 2018
IN THE COURT OF MS. TWINKLE WADHWA, LD. ADDITIONAL DISTRICT JUDGE
03:PATIALA HOUSE COURT:
NEW DELHI DISTRICT
CS No. 58768/16
1. Dr. G S Chandraker
S/o Late Shri Gaind lal Chandrakar
Chief Medical Officer,
Quarter No.1, MCD Dispensary,
D B Gupta Road, Paharganj,
New Delhi110055.
2. Mrs. Kanti Chandraker
W/o Dr. G S Chandraker
R/o Quarter No.1, MCD Dispensary,
D B Gupta Road, Paharganj,
New Delhi110055. ......Plaintiffs
VERSUS
1. Union of India
Through Secretary,
Ministry of Health & Family Welfare
Nirman Bhawan, New Delhi.
2. The Principal & Medical Superintendent
Lady Hardinge Medical College
& associated Hospitals,
Shaheed Bhagat Singh Marg, New Delhi.
3. Medical Superintendent & Head of Department
Kalawati Saran Children Hospital,
Bangla Sahib Marg, New Delhi.
4. Dr. Rema S. Nagpal
W/o Lt. Col. Atul Nagpal
1 Horse, C/o 56, APO. .....Defendants
CS No. 58768/16 Page 1 of 35
Date of Institution: 11.04.2002
Date of Final Arguments: 12.01.2018
Date of decision: 27.01.2018
JUDGMENT
The Case
1. The present is a suit for recovery of damages and compensation of an amount of Rs. 25 lacs being filed by plaintiff no.1 and 2 against the Hospital and treating doctor due to negligence on their part which resulted in the death of their 14 year old son Master Akash.
Appearance
2. I have heard arguments of Ld. Counsel for plaintiff Shri Gagan Mathur and Ld. Counsel for the defendant No.1, 2 and 3 Shri B C Bhatt and Ld. Counsel for defendant no.4 Shri Sagar Agnihotri.
Plaintiff's Case
3. It is the case of Plaintiffs that plaintiff no.1 is a Doctor by profession (MBBS) and was serving as CMO at MCD Dispensary, D B Gupta Road, New Delhi. Plaintiff no.2 is wife of plaintiff no.1 and mother of the deceased child.
4. It is further the case of plaintiff that their 14 year old son Akash was a chronic patient of Bronchial Asthma and was regularly being treated at OPD/casualty of Kalawati Saran Children's Hospital/Defendant no.3 (hereinafter KSCH) for last 8 years. The last treatment at the Hospital was on 13.02.1998.
5. It is further the case of plaintiff that on 30.03.1999 at about 10.00 PM, the plaintiffs' son Akash developed acute breathing problem and Akash could not get any relief despite taking Astheline Inhaler. Since there was no improvement in the breathing problem so he was taken to defendant no.3 KSCH immediately by plaintiffs, other family members and neighbours.
CS No. 58768/16 Page 2 of 356. It is further the case of plaintiff that on the night of 30.03.1999, when Akash was taken to defendant no.3 Hospital, the staff and doctors available refused to treat him while he was gasping for breath. Defendant no.4 Dr. Rema S Nagpal was the Doctor on duty, asked the plaintiffs to bring the child in the emergency ward and he was taken there at 10.10.PM. But when it came to the knowledge of Doctor defendant no.4 that Akash was 14 years old, she refused to treat him and advised the plaintiffs to take him to the adjacent/nearby Lady Harding Hospital for treatment. Plaintiffs informed the defendant no.4 that their son was chronic patient of Bronchial Asthma and was being treated for last 8 years in this Hospital regularly as OPD casualty patient, and as and when problem arose, Doctors in the Hospital gave him oxygen and injection of Hydro cortisone and Aminophyline and Salbutamol by nebulizer and other similar medicines for revival and he always recovered. But defendant no.4 refused to give even primary aid thereby saying that they have no instrument for resuscitation of a 14 year old child and advised them to take him to another Hospital.
7. It is further the case of plaintiffs that even though it was a case of acute emergency, yet defendant no.4 failed to provide any treatment/primary aid which resulted in lapse of the crucial window period/golden time for revival of the child thereby resulting in his death. It is further the case of plaintiffs as the condition of the patient was deteriorating, it was requested to defendant no.4 to provide some treatment to make the condition of the child stable so that he could be taken to the adjacent Hospital, however, she refused to provide any first aid or treatment, even the oxygen through a simple Catheter was not provided nor any injection, despite being available in the Hospital. Even plaintiff was not asked to bring the same from the market if the same were not available in the Hospital. Defendant no.4 also informed the plaintiff that Government had not supplied ET tube for children of that age group as was required in this case. Defendant no.4 told the plaintiffs to take the CS No. 58768/16 Page 3 of 35 patient to KSH causality as they have the necessary arrangements there. Despite repeated request to the doctor/defendant no.4 to provide primary emergency treatment and first aid so that he could be taken some where else, defendant no.4 flatly and rudely refused to accede to their request and to provide him the same.
8. As any treatment was refused to be provided by defendant no.4 and other staff of defendant no.3, hence plaintiffs reluctantly agreed to take Akash to the Lady Harding Medical College in the same condition and requested the staff/doctor to provide stretcher/trolly for carrying the patient but the same was also refused thereby saying that the hospital had no stretcher/trolley and all the staff of the hospital including defendant no.4 disbursed and left the place. As the condition of the child was deteriorating and finding no other way, plaintiff no.1 picked up the 14 year old Akash in his lap and rushed to the Lady Harding Medical College where he was declared brought dead. The death of Akash is direct result of gross negligence on the part of Hospital and defendant no.4 and other staff on duty.
9. It is further the case of plaintiffs that defendant no.3 and 4 failed to follow the guidelines prescribed by Government of India and Supreme Court of India. Arguments of plaintiff
10. It is the argument of plaintiffs' counsel that it is mentioned in the written statement of defendant no.1 to defendant no.3 in para no.5 that the duty doctor did make an attempt to resuscitate the patient which is incorrect. Moreover, it is also mentioned therein that the endotrachial tube would not suit the patient considering he was quite tall while size of endotrachial tube is calculated on the basis of age and not tallness. It is further the argument of counsel for plaintiffs that in written statement of defendant no.4, it is nowhere mentioned that she tried to give primary aid to the plaintiff.
11. It is further the argument of plaintiffs' counsel that it is mentioned in written statement of defendant no.4 in reply to para 3 that endortrachial tube of size more CS No. 58768/16 Page 4 of 35 than 5 mm was not available and only machintosh make 1 was available. It is further argued that no proof is filed to show that all tubes above 5 mm were not available, the only evidence led is that on 08.03.1999 Hospital had placed purchase order for the purchase of tubes of less than size 5mm which implies that tubes of sizes more than 5 mm were available with the Hospital.
12. It is further the arguments of plaintiffs' counsel that stretcher was not provided for carrying the patient to the Lady Harding Hospital which resulted in lapse of further crucial time thereby leading to the death of the patient.
13. It is further the argument of plaintiffs' counsel that plaintiff is a General Physician and had never given advance life support to any patient in his career as is already mentioned in his crossexamination. Further when the child was taken to the Hospital, his condition was not so serious as he was talking, his heart was working and he was breathing as well. It is further the argument of plaintiffs' counsel that even if the Hospital treated children below 12 years of age, basic/primary aid could have been provided i.e. mouth to mouth respiration, cardiac massage, oxygen, nebulization.
14. It is further the argument of counsel for plaintiff that the failure of Government hospital in providing primary emergency treatment resulted in violation of Right to Life guaranteed under Article 21 of the Constitution of India. It is further the argument of counsel that FIR bearing no. 366/99 was registered at PS Mandir Marg against defendant no.4 and other staff of the hospital. It is further argued that inquiry conducted in the hospital, doctors were excornataed and it was a biased inquiry. It is further argued that in the enquiry report also, it is mentioned that patient should have been advised to be shifted after starting resuscitation measures. It is argued that the claim of the plaintiffs is based on principle of strict liability under law of torts. The gross negligence of the doctor, non providing of first aid, non availability of ET tube and trolly became instrumental in the failure of discharge of CS No. 58768/16 Page 5 of 35 public duty by the doctor and staff.
15. It is further argued that Master Akash was a young and bright child of 14 years. He was a brilliant child and has won brilliance medal and prizes. He was very good at sports beside studies. The other son of the plaintiff is a weak child with mental retardation and he was the only child they were relying on for their old age. Due to the incident, plaintiffs have suffered mental agony, hyper tension beside other deceases. Plaintiff no.2 has developed anxiety neurosis and is getting repeated fits due to shock.
Arguments of ld. counsel for defendant nos. 1 to 3
16. A joint written statement is filed on behalf of defendant no.1 Union of India, defendant no.2 Medical Superintendent Lady harding Medical College and associated hospitals and defendant no.3 Medical Superintendent Kalawati Saran Children Hospital. It is admitted by defendants that defendant no.4 was employed as Sr. Resident on the date when the incident had taken place. It is denied that staff and doctors on emergency duty did not attend Master Akash Chandrakar. It is the case of defendants that patient Master Akash aged 14 years was brought to KSCH at 10.10 pm on 30.03.1999 in a cyanosed state. He was attended by the doctor on the duty. As the patient was not breathing, his pulses were absent and there was an occasional audible heart beat, and the ET Tube available in the Hospital would not suit the patient considering that he was quite tall, the duty Doctor advised to get him shifted to the nearby KSH emergency which is another associated Hospital for Lady Harding Medical College. The trolleys which are used for children would not have shifted the patient as he was quite tall. It is further the case of defendants that trolley was not denied to the patient however, the trolleys of the children Hospital are comparatively smaller hence father of the patient was advised to rush him to SSK Hospital without looking for a trolly suiting for his son. It is further mentioned in para 7 that doctor on duty did make an attempt to resuscitate the patient with ET Tube CS No. 58768/16 Page 6 of 35 available in the Children's Hospital.
17. It is further the case of defendants that as plaintiff himself is a doctor, it was within his knowledge that Kalawati Saran Children Hospital caters to the children upto the age of 12 years. It is further the case of defendants that plaintiff himself was quite late in taking his son to the Hospital considering the fact that he was a chronic Aasthma patient. When Master Akash was brought to KSCH, he was already in a cyanosed state with occasionally audible heart beat. It is further the case of defendants that on the complaint of plaintiff, they had instituted an inquiry against the doctors but doctors were found not negligent.
18. It is argued by ld. counsel that plaintiff who is father of the deceased was CMO in the hospital. He himself has mentioned in the plaint that his child was being treated for Asthma for last 8 years. Since he himself was a doctor, he was aware that children above 12 are not treated in Kalawati Saran Hospital. He could have taken his son to the Lady Harding Hospital which admits adult patients.
19. It is further argued that in the Kalawati Saran Hospital being a children hospital, ET tubes till 5 mm are available in the Hospital and nothing beyond. Further it is mentioned in reply that Doctor treated the patient with whatever was available. It is further argued that in a criminal case under Section 304 A, closure report was filed by the Police that was accepted by Ld. MM & by Hon'ble High Court.
Case of defendant no.4 and her Counter Claim
20. It is the case of defendant no.4 that there is no negligence on the part of defendant no.4 doctor. In the given circumstances of the case when the condition of the patient was very critical, Doctor/defendant no.4 advised the patient to be taken, for proper treatment, at a neighbouring section of the same Hospital within the same Hospital complex where skilled treatment was available. It is further the case of defnedant no.4 that plaintiff is guilty of contributory negligence as plaintiff failed to CS No. 58768/16 Page 7 of 35 explain why he permitted his son's condition to become critical and hopeless before bringing him to the Hospital. He himself never attempted any first aid before bringing child to the Hospital. Early recognition and effective management of respiratory problems are fundamental for a patient's chance of survival. When patient was brought to the Hospital, he was under cardio respiratory failure and in such condition, survival rates are minimal and most who do survive have significant neurologic impairment.
21. It is further the case of defendant no.4 that she has an excellent academic record. She had worked in various Hospitals and there has never been any complaint against her conduct. It is further the case of defendant no.4 that plaintiff has started a false media trial and campaign against defendant no.4. The Press has reported only plaintiff's version of the event and has caused the defendant mental harassment and agony and lowered her reputation in the eyes of general public. Hence, the counter claim for damages is filed by defendant no.4.
22. It is further the case of defendant no.4 that emergency of KSCH is very busy section. On an average on any given date there are about 1020 children under detention/observation. Further there is regular flow of outdoor patients in the casualty section. Initially, attempt is made to stabilize their condition and when patient shows some sign of improvement, he or she is shifted to ICU Section or wards. Due to paucity of space, sometimes there are more than one child on a bed. The doctors on duty and nursing staff as a routine remained under pressure round the clock. At the time when Master Akash was brought in the Hospital he was in an advance stage of cardio respiratory failure with occasional heart beats.
23. It is further case of defendant no.4 that on 30.03.1999 when Master Akash was brought at the Hospital, he was in a collapsed state with no visible respiratory effort. He was deeply cyanosed. Seeing the condition of patient, defendant no.4 immediately asked the nurse for ET Tube and requested the sister on duty to bring CS No. 58768/16 Page 8 of 35 adult sized ET Tube and Laryngoscope. But defendant no.4 was informed that no tubes bigger that ET size 5.0 was not available in the casualty. The Laryngoscope provided was pediatric sized with Macintosh size 1 blade. The instruments available were not suitable to resuscitate the patient. As per medical norms, the following is the formula for calculating the size of ET Tube.
Age (in years) + 4 or 4.5 4
24. Hence, ET Tube of size 7.5 to 8 mm was required for his resuscitation. It is further the case of defendant no.4 that she did not want to delay the effective treatment by engaging in futile attempts thereby wasting precious time hence advised him to be taken to the neighbouring unit in the same Hospital complex. It is further the case of defendant no.4 that she examined the patient but found occasional heart beats as he was in a cyanosed state. Further the best way to make out any heart beat is cardiac monitor which was not available at that time as is mentioned in para 5 of the written statement. She specifically asked the age of child in order to assess the size of ET Tube. When she was informed by Nurse regarding the nonavailability of the proper size ET Tube, she suggested the patient to be taken to another casualty.
25. It is further the case of defendant no.4 that for a critically sick child with respiratory problem, the first step is establishment of airway which was not possible in this case as proper size ET Tube was not available. It is further the case of defendant no.4 that asking the plaintiff to bring the necessary ET Tube from the Market did not arise as all the requisite equipments were available in the main casualty. Moreover, at 10.00 PM in night most of the shops are closed.
26. It is further the case of defendant no.4 that she is a sincere professional dedicated to her profession. However, defendant no.4 asked the sisters present on duty to provide a stretcher/trolley. The defendant no.4 was informed that there was no trolley at that time in that part of the casualty and that they were making CS No. 58768/16 Page 9 of 35 arrangements. Moreover, the defendant no.4 advised the parents that the patient needed intervention with appropriate equipment/instruments which were available in the Main Casualty of the same hospital, and hence the patient be taken there in the same way as he was brought in there, without waiting for the stretcher / trolley and wasting further time. The defendant no.4 was at that very time in charge of several critical ill child patients with respiratory ambu bags and she could not have abandoned them in order to accompany patient Master Akash. The Emergency/Casualty Section of KSCH was over crowded, and as such there was no nurse or assistant, who could be spared to escort the child. Besides, the patient Akash was already accompanied by his father, who was himself a Doctor.
27. It is further stated that plaintiff had come after 6 years of experience in the Army, with an ambition to serve the people as Doctor, and it was with a view to gain expertise in the pediatrics field that she joined the Kalawati Saran Children's Hospital with great expectations. The Plaintiff's dedication to her profession is beyond doubt. Although with her qualifications she could have taken up more lucrative employment with private hospitals/nursing homes, she chose instead to work in a Government hospital, where she hoped to gain greater clinical experience and satisfaction. As a result of the false tirade let loose by the defendants, the professional career and morale of the plaintiff was quite shattered.
28. The defendant no.4 is 39 years old, and would in the normal circumstances look forward to another 21 years of active practice. She would quantify the damage caused to her by the defendants at Rs.20 lacs, which she puts forward as a counter claim against the defendants for their reckless and irresponsible allegations against her, and the plaintiff prays for a money decree for the said amount against the defendants.
CS No. 58768/16 Page 10 of 3529. On completion of pleadings, following issues were framed on 24.01.2005 ISSUES
1. Whether the death of Master Akash was due to the act of negligence of defendant no.4? OPP.
2. Whether Master Akash died due to deficiency in services/equipment at defendant no.3 hospital? If so, to what effect? OPP.
3. Whether plaintiff No.1, being a doctor, is guilty of contributory negligence qua death of Master Akash, if so to what effect? OPD.
4. If issues No.1 and 2 are decided in favor of the plaintiffs, to what amount are the plaintiffs entitled to and from which of the defendants? OPP.
5. Whether the counter claim filed by defendant no.1 discloses no cause of action? OPP.
6. Whether the counter claim filed by defendant no.4 is bad for mis joinder of necessary parties? OPP.
7. Whether the counter claim filed by defendant no.4 is not maintainable in the present form? OPP.
8. Have the plaintiffs defamed defendant no.4? OPD.
9. To what damages is defendant no.4 entitled to from the plaintiffs? OPD.
10. Relief.
30. To prove their case, plaintiffs examined the following witnesses and exhibited the following documents PW1 Shri G S Chandrakar Father of deceased child PW2 Mr. Rajinder Singh, MHC Police Official who brought FIR before Court CS No. 58768/16 Page 11 of 35 PW3 Dr. Anil Kumar Duggal Expert witness, MBBS, MD (Paediatrics), working at Kasturba Hospital as Child Specialist PW4 Shri Pradeep Pandit He deposed about publication of incident in Statesman Newspaper PW5 Shri C N Joshi Accountant at the School where child was studying and produced progress report of Master Akash for Class VI, VII and IX.
PW6 Shri Ramesh Bhatia Neighbour of plaintiffs who accompanied child to the
Hospital immediately before death
S.No. No. of Exhibits Details of the documents
1 Ex. PW1/1 & 2 Copy of OPD Ticket of Kalawati Saran Children's
Hospital of Master Akash dated 05.02.1990 &
27.07.1990
2 Ex.PW1/3 Certified copy of Birth Certificate of Master Akash
3 Ex.PW1/4 Photocopy of Guidelines issued by Ministry of Health
4 Ex.PW1/5 Postal receipts
5 Ex.PW1/6 Copy of complaint dated 15.06.1999 with postal
receipts
6 Ex.PW1/7 Original copy of letter dated 16.06.1999
7 Ex.PW1/9 Original copy of letter dated 27.07.2001
8 Ex.PW1/10 Original copy of letter dated 23.01.2003
9 Ex.PW1/11 Original copy of office Memorandum dated 20.09.1999
10 Ex.PW1/12 Original copy of letter dated 12.07.2001
11 Ex.PW1/13 Original acknowledged copy of letter 12.07.1999
12 Ex.PW1/14 Original copy of letter dated 08.09.2003
13 Ex.PW1/15 Copy of FIR No. 396/99
14 Ex.PW1/16 & 17 Original Progress Report of Master Akash for Standard
VI to VIII and IX
15 Ex.PW1/18 to 21 Original certificates of Master Akash
16 Ex.PW1/22 Original newspapers report dated 13.11.1999
17 Ex.PW1/23 Photocopy of relevant page of diary of master Akash
18 Ex. PW1/24 Original prescriptions of plaintiff no.2
CS No. 58768/16 Page 12 of 35
19 Ex.PW1/25 Certificate of sterilization of plaintiff no.2
20 Ex.PW1/26(colly) Photocopies of prescriptions of Master Akash
21 Ex.PW1/27 Pyschological report
22 Ex.PW1/28 Legal notice
23 Ex.PW1/29 to 33 Original Newspaper containing reports of incident
24 ExPW1/34 & 35 Other reports concerning defendant no.2
25 Ex.PW1/36 Original Newspaper dated 03.12.2002
31. On the contrary, defendants examined the following witnesses and exhibited the following documents D4W1Dr. Rema Nagpal Doctor on duty who is claimed to be negligent D4W2 Dr. Krishan Chugh Expert witness working as Chairman, Department of Paediatrics, Sir Ganga Ram Hospital D1W1 Dr. N K Dubey He is MBBS, MD Pediatrics and was HOD of KSCH where incident took place D1W2 Ms. Gurpreet Malhotra Nurse on duty at the time of incident S.No. No. of Exhibits Details of the documents 1 Ex. DW4/1 Army Service Record 2 Ex.DW4/2 Copy of Special Certificate 3 Ex.DW4/3 to 5 Copy of Certificates 4 Ex.DW4/6 & 7 Letters of recommendations 5 Ex.DW4/8 to 11 Certain chapters Reasons for Decision
32. I have heard both the sides and gone through the record.
33. At the outset it is pertinent to mention here that liability in a civil case is different from liability in the criminal case and a burden of proof in both the cases is different.
34. It was observed in the case of Jacob Mathew Vs. State of Punjab & Anr., (2005) 6 SCC 1 CS No. 58768/16 Page 13 of 35 "The forequoted statement of law in Andrews has been noted with approval by this Court in Syad Akbar v. State of Karnataka (1980) 1 SCC 30. The Supreme Court has dealt with and pointed out with reasons the distinction between negligence in civil law and in criminal law. Their Lordships have opined that there is a marked difference as to the effect of evidence, viz. the proof, in civil and criminal proceedings. In civil proceedings, a mere preponderance of probability is sufficient, and the defendant is not necessarily entitled to the benefit of every reasonable doubt; but in criminal proceedings, the persuasion of guilt must amount to such a moral certainty as convinces the mind of the Court, as a reasonable man, beyond all reasonable doubt. Where 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".
35. In view of above, in a civil negligence, a mere preponderance of probability is sufficient to prove the case.
36. In order to prove negligence under law of torts, it is necessary to establish that there was a duty, breach of duty and the resulting damage which is suffered by the complainant. It was further observed in para 11 of Jacob Mathew case as follows The essential components of negligence, as recognized, are three: "duty", "breach" and "resulting damage", that is to say:
1. the existence of a duty to take care, which is owed by the defendant to the complainant;
2. the failure to attain that standard of care, prescribed by the law, thereby committing a breach of such duty; and
3. damage, which is both causally connected with such breach and recognized by the law, has been suffered by the complainant. (Para 1.23) If the claimant satisfies the court on the evidence that these three ingredients are made out, the defendant should be held liable in negligence.
37. The next legal proposition which is to be kept in a mind while deciding a case of negligence by a medical professional is the test laid down in Bolam Vs. Friern Hospital Management Committee case. It was observed in Bolam case as CS No. 58768/16 Page 14 of 35 follows "Where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill . . . A man need not possess the highest expert skill; it is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art."
38. The said observation and the test laid down is followed all over India. The same has been relied upon by Hon'ble Supreme Court in Jacob Mathew case also. It was observed in para 24 of Jacob Mathew case as "The classical statement of law in Bolam's case has been widely accepted as decisive of the standard of care required both of professional men generally and medical practitioners in particular. It has been invariably cited with approval before Courts in India and applied to as touchstone to test the pleas of medical negligence. In tort, it is enough for the defendant to show that the standard of care and the skill attained was that of the ordinary competent medical practitioner exercising an ordinary degree of professional skill. The fact that a defendant charged with negligence acted in accord with the general and approved practice is enough to clear him of the charge. Two things are pertinent to be noted. Firstly, the standard of care, when assessing the practice as adopted, is judged in the light of knowledge available at the time (of the incident), and not at the date of trial. Secondly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that point of time on which it is suggested as should have been use".
39. Further it is also settled principle by now that if there were two options, and a Doctor chooses one option over the other, he cannot be held negligent for the same.
Para 44 and 45 Jacob Mathew case is as follows "In Achutrao Haribhau Khodwa and Ors. v. State of Maharashtra and Ors. (1996) 2 SCC 634 the Court noticed that in the very nature of medical profession, skills differs from doctor to doctor CS No. 58768/16 Page 15 of 35 and more than one alternative course of treatment are available, all admissible. Negligence cannot be attributed to a doctor so long as he is performing his duties to the best of his ability and with due care and caution. 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. It was a case where a mop was left inside the lady patient's abdomen during an operation. Peritonitis developed which led to a second surgery being performed on her, but she could not survive. Liability for negligence was fastened on the surgeon because no valid explanation was forthcoming for the mop having been left inside the abdomen of the lady. The doctrine of res ipsa loquitur was held applicable 'in a case like this'.
M/s Spring Meadows Hospital and Anr. v. Harjol Ahluwalia through K.S. Ahluwalia and Anr. (1998) 4 SCC 39 is again a case of liability for negligence by a medical professional in civil law. It was held that an error of judgment is not necessarily negligence. The Court referred to the decision in Whitehouse & Jorden, [1981] 1 ALL ER 267, and cited with approval the following statement of law contained in the opinion of Lord Fraser determining when an error of judgment can be termed as negligence: "The true position is that an error of judgment may, or may not, be negligent, it depends on the nature of the error. If it is one that would not have been made by a reasonably competent professional man professing to have the standard and type of skill that the defendant holds himself out as having, and acting with ordinary care, then it is negligence. If, on the other hand, it is an error that such a man, acting with ordinary care, might have made, then it is not negligence."
40. In Savita Garg Vs. National Heart Institute, (2004) 8 SCC 56, it was held by Hon'ble Supreme Court that as far as medical negligence is concerned, difference between the contract of service and for contract of service is not relevant. Hence, even for visiting doctors and doctors under contract, the hospital was held to be vicariously liable.
CS No. 58768/16 Page 16 of 3541. It was further observed in Achutrao Haribhau Khaodwa Vs. State of Maharashtra & Ors., (1996) 2 SCC 634 that Government Hospitals are vicariously responsible for the acts of its doctors. It was further held that Government is vicariously responsible for the negligent acts of his employees including the one involved in running of the Hospitals.
42. Further in the case of State of Punjab Vs. Shiv Ram (2005) 7 SCC 1, it was held that Government/State is vicariously liable if doctors are found to be negligent.
43. In view of above, the medical negligence if any of defendant no.4/Doctor and Defendant no.3/Hospital is to be considered.
44. It is the argument of ld. Counsel for Doctor/defendant no.4 that patient Master Akash was brought in the Hospital at about 10.00 PM in the night in a cyanosed state i.e. he was turning a little blueish. At that time ET Tube of size 5 mm was available and Machintosh blade of size 1 was available. Considering the unavailability of the basic equipment, patient was advised to be shifted to the nearby Hospital in the same complex. It is argued that Doctor. had two options, first to try to resuscitate the patient with equipment which would have resulted in ineffective efforts of resuscitation as the proper size ET Tube was not available nor was the said blade. Secondly, to refer the patient to the Hospital for adults in the same complex. It is argued that doctor chose the second option and she cannot be held liable for choosing the said option.
45. However, I do not agree with the submissions made by ld. counsel for defendant no.4. Nontreatment of the patient and referring the patient who was in a critical state to another Hospital can never be called an option. Rather she chose the option of non treating the patient, rather than treating the patient with whatever equipments were available. It has been rightly observed by Hon'ble Supreme Court in various judgments including the judgment of Paschim Banga Khet Mazdoor Samiti Vs. State of West Bengal, AIR 1996 SC 2426 that patient who is brought to CS No. 58768/16 Page 17 of 35 emergency and who is not treated, results in violation of his Right of Life guaranteed Article 21 of the Constitution of India. Pursuant to the said judgment, a notification was issued by Government thereby making rules that no patient in emergency shall be denied treatment and will be shifted to the adjacent Hospital after providing primary aid, which is duly exhibited on record.
46. It is the own case of defendant no.4/Dr. Rema Nagpal that when patient was brought to the emergency he was in a cyanosed state with occasional heart beat. The adjacent Hospital was at a distance of 5 to 10 minutes as has emerged from the testimony of witnesses on record. It was stated by the said Nurse who was on duty that day in her crossexamination as D1W2 Smt. Gurpreet Malhotra that it takes 5 to 7 minutes to shift the patient from the emergency ward of children's hospital to the SKH in the same complex. It was also deposed by PW3 Dr. Anil Duggal in his crossexamination on 08.12.2006 that the distance between the KRSH and SKH is ten minutes by walking distance. Hence, roughly the time frame required to shift the patient from children's Hospital to emergency of SKH is approximately 5 to 10 minutes. If the importance of these 5 to 10 minutes will not be understood by a doctor then who else would. According to the case of doctor defendant no.4, Master Akash was brought in a cyanosed state, not breathing and with occasional heart beat. In such a state what would have been more appropriate for her, to use the options available for resuscitation of the child or to ask the patient to be shifted to adjacent Hospital which is 5 to 10 minutes away. How crucial these minutes would be for a child in a cyanosed state with occasional breathing? In such circumstances referring the patient to the adjacent Hospital where shifting would have taken 5 to 10 minutes cannot be called an option at all.
47. It was in order to remind the doctors of their duty inherent in their profession of providing medical/primary emergency care that these guidelines and then subsequent notification from the Government has been passed but such guidelines CS No. 58768/16 Page 18 of 35 have clearly been violated in the present case.
48. The next question to be decided is whether no equipment was available for resuscitation at the hospital as as is the defence defendant no.4/ Doctor and Hospital/defendant no.3.
ET Tube
49. Hospital has filed photocopy of one purchase order thereby showing that they had placed orders for purchase of endotrachial tubes of 5 mm and less. But there is no such purchase order to show that tubes above 5 mm were not available in the Hospital. It was the duty of the Hospital to ensure that the relevant equipment was available in the Hospital. If in the children emergency of the hospital, tubes of the said size which are required for treatment of a child of 12 year of age is not available, it is clearly a deficiency in service and negligence on the part of said hospital and its management.
50. The next question is to be considered is whether said ET Tubeof size 5 mm was insufficient for resuscitation of the patient.
51. D1W1 Dr. N K Dubey was Sr. Pediatrician and HOD of the KSCH where incident had taken place and he had deposed on behalf of the hospital before the Court. In his crossexamination conducted on 11.12.2009, he stated that usually tube size ranging from 0 to 5 ½ mm were used in the Hospital. He further stated in his crossexamination conducted on 22.04.2010 that roughly the size of ET Tube is 5 ½ mm for the treatment of child of 12 years. He further deposed that there are many formulas for calculating the same. Hence, according to the HOD of the said Hospital where incident had taken place, tube required for a 12 year old is 5 ½ mm and there are several formulas for calculating the same. Needless to say being an HOD he must be deposing on the basis of experience and not merely on the basis of theory as it was his everyday work to treat the children. Further it was the own case of the Doctor/defendant no.4 that on any day, any casualty at children's CS No. 58768/16 Page 19 of 35 hospital consist of 15 to 20% of the patients being patients of Asthma attack.
52. According to the formula propagated by defendant/doctor and as is also mentioned by defendant no.4/doctor Kishan Chug who came in support of the defendant no.4 stated that the difference between the ET Tube required for a 12 year old child and 14 year old child is point (.5) 5 mm only. Further PW3 Dr. Anil Kumar Duggal, another Senior Paediatrician in Kasturba Hospital stated that trachial tube ideal for a 12 year old child can be used for a 14 year child as well.
53. In view of above, where the ET Tube of size 5 mm was available and as per the deposition of Dr. Dubey the size required for a 12 year old child is 5 ½ mm only, it cannot be said that there was no chances of revival of the patient with the use of said ET Tube at all.
54. Further PW3 Dr. Anil Kumar Duggal in his crossexamination conducted on 08.12.2006 deposed about the effect of intubation of a 14 year old child with a 4 mm size tube. He deposed that though it is not ideal but in case of emergency it may be used. It is further stated that it will ventilate even though result may not be upto the desired effects. The said proposition of this doctor is not controverted by testimony of any other doctor on record or by any other study material on record.
55. In view of the deposition of Dr. N K Dubey who is HOD of the Hospital who stated that sizes of Tubes used uptill 5 ½ mm only for a 12 year old child, the same cannot be said to be completely ineffective for resuscitation of a 14 year old child. Further it is mentioned in the affidavit of Dr. Rema Nagpal defendant no.4 that it was inadequate to use 5 mm ET Tube in a 14 year old patient because it would not fit properly, effective chest expansion would not take place and would result in large air leak. However, only because there would be air leak, it cannot be said that it would be completely inadequate. Resuscitation with the said ET Tube would have resulted with some air being provided and some chances of survival may have been there.
CS No. 58768/16 Page 20 of 3556. Further it has come in the crossexamination of DW1 that this formula is according to the guidelines of American Association. While according to Dr. Dubey there are several such formula. Further according to his experience on the basis of which he deposed that a 5 ½ mm ET Tube would have been sufficient for a 12 year old then, it cannot be said that 5 mm ET tube is too inadequate for a 14 year old child.
57. As far the nonavailability of appropriate size of the blade is concerned, it is not mentioned in the written statement of Hospital and defendant no.1 and 2 that machintosh blade of size 2 or 3 was not available. Moreover, D1W1 Dr. N K Dubey who is HOD of KSCH has not mentioned in examination in chief that the blade of size 2 or 3 was not available. The same is the defence set up by the doctor/defendant no.4 but no evidence is led to prove that blade of such dimension was not available in the hospital. Hence it is not proved that the blade of such size was not available. Further in the enquiry report it is not mentioned that the blade of such type is not mentioned. In the reply of Dr. Rema Nagpal which was given in response in the said enquiry, it is not mentioned that blade of such size was not available. It appears to be a defence which is set up for the first time before this Court hence do not inspire any confidence.
Trolley/Stretcher
58. Further as far as the question that stretcher/trolley was not available, it was the duty of the hospital to provide stretcher/trolley in sufficient numbers in the hospital. It trolley would have been available, it would have saved the precious time spent in shifting the patient in his lap by plaintiffs. Nonproviding of stretcher and trolley is a negligence on the part of the hospital and the hospital is liable for the same. Further it has come in the crossexamination of the Nurse/D1W2 Smt. Gurpreet Malhotra that only one trolley was there at that day at that time in emergency. A children's hospital with 24 X 7 casualty, only one trolley cannot be CS No. 58768/16 Page 21 of 35 called sufficient at all. Hence, there is negligence on the part of Hospital in this aspect also.
Other Options of Primary Aid
59. Further whether no other options were available with the doctor for resuscitation of patient at all besides ET Tube? In the present case, plaintiff did not try to give mouth to mouth resuscitation or CPR even. Hence, the basic life support as a Doctor which she should have given even without ET Tube has not been done by her. The reasons explained by her as follows in her crossexamination "Basic life support is a series of interventions which starts with airway, breathing and circulation. Airway is first cleared by a head tilt chin lift procedure and suction if required. Breathing is provided by mouth to mouth resuscitation or ambu bag or endotracheal intubation. Circulation is established by cardiac massage. Advance life support is instituted in the form of ambu bag and endotracheal intubation. I was under tertiary care hospital where I knew the appropriate equipment was available a short distance away and I could not hold the patient back to give mouth to mouth resuscitation when it was more sue shot method to perform endotrachel intubation. Basic life support and advance life support are a series of intervention. Basic life support may be performed when there is absolutely no possibility of accessing advance life support system.
Q. Did you follow basic life system before thinking about advance cardiac life support?
A. Basic life support and advance life support are series of intervention and they are applied according to existing settings. In the present case of master Aakash, I did not follow basic life system because I was aware that ambu bag and endotracheal intubation is available at a short distance. Even otherwise in every case requiring resuscitation, the mouth to mouth resuscitation is not given.
60. As per own case of defendant no.4, the equipment for providing advance life support was not available but she had all that was required for a basic life support. At that time, instead of resorting to the basic life support, she referred the patient to another Hospital despite their being repeated reminders by Hon'ble Supeme Court CS No. 58768/16 Page 22 of 35 through various judgments and notification by the Government that emergency treatment is to be provided, the same were not followed by the doctor. With a patient who required emergency treatment, instead of providing basic life support, she directed the patient to be taken to another hospital. This is not a mere error of judgment. Rather this is a conduct so inappropriate of being a doctor that it would fall under the category of negligence only. Moreover, D4W2 Dr. Kishan Chugh who has come in support of defendant no.4/Doctor has deposed before the Court as follows "Ambu bag is used for artificial ventilation. Basic life support system in a case of respiratory failure comprises of artificial respiration given by mouth to mouth breathing in non hospital circumstances and in hospital equipment like ambu bag and endotracheal tube is used and it is called advanced life support system. The basic life support system can be used in hospital scenario where equipments are not available".
61. Hence, in such a scenario of emergency it is expected of a doctor that she would give primary care to the child before ordering him to be shifted to adjacent hospital which she failed to do in the present case.
62. Further in the said departmental enquiry which is exhibited on record wherein Dr. Rema Nagpal was exonerated, an observation was made that resuscitate measures should have been started before shifting the patient to the hospital.
63. In view of above, nontreatment of the patient Master Akash and rather referring him to the adjacent hospital by the doctor is negligence on the part of doctor and not a mere error of judgment. As discussed above, the size 5 mm ET Tube may not have been adequate for resuscitation of the patient but in emergency it could be used. Further a defence put up that appropriate size blade was not available does not inspire any confidence. Moreover, she did not resort to basic life support.
CS No. 58768/16 Page 23 of 3564. For the reasons as discussed above, it is held that Dr. Rema Nagpal, defendant no.4 was negligent and so is defendant nos.1, 2 and 3 who are vicariously responsible for the negligence on the part of defendant no.4 Doctor.
65. As far as Counter Claim of defendants is concerned, no witness has come to depose before the Court regarding the reputation of the defendant no.4. It is not stated by any witness that after the said publication, image of defendant no.4 was lowered in their eyes. Moreover, the said Newspaper where publication was done is not made a party. Hence, it is bad for nonjoinder of necessary parties. In the circumstances, Counter Claim is hereby dismissed.
Contributory negligence of the father/claimant/plaintiff
66. It is the case of defendants that plaintiff himself is a doctor by profession and was working in MCD dispensary at that time. It was negligent on his part that he brought his son to the Hospital in such a critical condition which resulted in his death. However, I do not agree with the said argument.
67. The statement of the neighbour of the plaintiff who has deposed before the Court as PW6 is on record. According to PW6 Ramesh Bhatia he was in the car of Dr. Chandrakar/plaintiff when Master Akash was taken to the Hospital. According to him while he was in the car, the condition of Master Akash was OK. Wife of Dr. Chandrakar was giving puffs to Master Akash while he was going to the Hospital though there was no improvement in his condition. Further Master Akash was talking to his mother while they were going to the Hospital. Hence, it cannot be said that any undue delay was there on the part of Dr. Chandrakar.
68. Further he mentioned in his examination in chief that his son came back to his house at about 10.00 PM, he stated that while playing with Master Akash, his condition deteriorated. He immediately rushed to the house of Master Akash. This shows that Master Akash was perfectly fine at 10.00 PM while he was playing with CS No. 58768/16 Page 24 of 35 his friends and his condition suddenly got deteriorated.
69. Further as per the testimony of PW3 Dr. Anil Kumar Duggal who is MD (Paediatrics) and was working in Department of Paediatrics in Kasturba Hospital as Child Specialist, it is stated that (though it is not very common but sometimes it do happen that on the onset of asthmatic attack, even after taking astheline puffs four times, the condition of a patient deteriorates within ten minutes in a case of severe acute asthma. I had come across such cases several times during my career).
70. Hence, there is no negligence on the part of Dr. Chandrakar and the condition of Master Akash suddenly deteriorated.
71. Further, there is no evidence led by the defendants to show how Dr. Chandrakar was responsible for such a condition of his child. Further plaintiff who is father of the deceased was only a CMO in a dispensary and he never dealt with the emergency patients has come in his evidence. Moreover, being a father who has brought his child in a critical state in a Hospital just like an ordinary man, he would be worried, tensed and would expect assistance from Hospital only where he had taken his child. Further it is explained by him in his crossexamination that since his son did not have any attack for more than a year, hence he did not have any set up at home for emergency treatment.
Damages Pecuniary Damages
72. In Nizam's Institute of Medical Sciences Vs. Prasanth S Dhananka, (2009) 6 SCC 1, it was held that multiplier method is not to be applied in the cases of medical negligence. It does not incorporate all the heads under which a person might be claiming gain for compensation.
It was further observed in para 88 and 90 of Nizam's case as follows
89. "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 CS No. 58768/16 Page 25 of 35 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.
90. At the same time we often find that a person injured in an accident leaves his family in greater distress visavis a family in a case of death. In the latter case, the initial shock gives way to a feeling of resignation and acceptance, and in time, compels the family to move on. The case of an injured and disabled person is, however, more pitiable and the feeling of hurt, helplessness, despair and often destitution ensures every day. The support that is needed by a severely handicapped person comes at an enormous price, physical, financial and emotional, not only on the victim but even more so on his family and attendants and the stress saps their energy and destroys their equanimity".
73. In Balram Prasad Vs. Kunal Saha and Ors., (2014) 1 SCC 384, it was observed that the compensation which is to be awarded must be just. While claimants should be compensated for the loss of their dependency, but the same should not be considered to be a windfall. It was further observed in para 99 that death of an only son to a mother can never be compensated in monetary terms. It was further observed that it is difficult for any Court to lay down rigid tests which should be applied in all situation and some sort of hypothesis and guess work cannot be ruled out. It was further observed in para 99 In Govind Yadav Vs. New India Insurance Company Ltd.(supra), this court at para 15 observed as under which got reiterated at paragraph 13 of Ibrahim Vs. Raju & Ors. (supra): "15. In Reshma Kumari v. Madan Mohan this Court reiterated that the compensation awarded under the Act should be just and also identified the factors which should be kept in mind while determining the amount of compensation. The relevant portions CS No. 58768/16 Page 26 of 35 of the judgment are extracted below: (SCC pp. 43132 & 44041, paras 2627 & 4647) '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 guesswork may be inevitable. That may be so.'
46. In the Indian context several other factors should be taken into consideration including education of the dependants and the nature of job. In the wake of changed societal conditions and global scenario, future prospects may have to be taken into consideration not only having regard to the status of the employee, his educational qualification; his past performance but also other relevant factors, namely, the higher salaries and perks which are being offered by the private companies these days. In fact while determining the Court in Oriental Insurance Co. Ltd. v. Jashuben held that even dearness allowance and perks with regard thereto from which the family would have derived monthly benefit, must be taken into consideration.
47. One of the incidental issues which has also to be taken into consideration is inflation. Is the practice of taking inflation into consideration wholly incorrect? Unfortunately, unlike other developed countries in India there has been no scientific study. It is expected that with the rising inflation the rate of interest would go up. In India it does not happen. It, therefore, may be a relevant factor which may be taken into consideration for CS No. 58768/16 Page 27 of 35 determining the actual ground reality. No hard andfast rule, however, can be laid down therefor."
74. Further in Balram Prasad case (supra), placing reliance on the judgment of Raj Rani Vs. Oriental Insurance Company Ltd., (2009) 13 SCC 654 in para 112 it was observed that future prospects of the deceased even in the absence of any expert opinion must have been reasonably judged based on the income of the deceased.
75. It was further observed in Lata Wadhwa & Ors. Vs. State of Bihar & Ors., AIR 2001 SC 3218 that "So far as the determination of compensation in death cases are concerned, apart from the three decisions of Andhra Pradesh High Court, which had been mentioned in the order of this Court dated 15th December, 1993, this Court in the case of General Manager, Kerala State Road Transport Corporation, Trivandrum vs. Susamma Thomas and Ors., 1994(2) S.C.C. 176, exhaustively dealt with the question. It has been held in the aforesaid case that for assessment of damages to compensate the dependants, it has to take into account many imponderables, as to the life expectancy of the deceased and the dependants, the amount that the deceased would have earned during the remainder of his life, the amount that he would have contributed to the dependants during that period, the chances that the deceased may not have lived or the dependants may not live up to the estimated remaining period of their life expectancy, the chances that the deceased might have got better employment or income or might have lost his employment or income altogether. The Court further observed that the manner of arriving at the damages is to ascertain the net income of the deceased available for the support of himself and his dependants, and to deduct therefrom such part of his income as the deceased was accustomed to spend upon himself, as regards both self maintenance and pleasure, and to ascertain what part of his net income the deceased was accustomed to spend for the benefit of the dependants, and thereafter it should be capitalised by multiplying it by a figure representing the proper number of years purchase. It was also stated that much of the calculation necessarily remains in the realm of hypothesis and in that region arithmetic is a good servant but a bad master, since there are so CS No. 58768/16 Page 28 of 35 often many imponderables. In every case, it is the overall picture that matters, and the court must try to assess as best as it can, the loss suffered".
"At the same time, it must be held that a mere speculative possibility of benefit is not sufficient. Question whether there exists a reasonable expectation of pecuniary advantage is always a mixed question of fact and law. There are several decided cases on this point, providing the guidelines for determination of compensation in such cases but we do not think it necessary for us to advert, as the claimants had not adduced any materials on the reasonable expectation of pecuniary benefits, which the parents expected. In case of a bright and healthy boy, his performances in the school, it would be easier for the authority to arrive at the compensation amount, which may be different from another sickly, unhealthy, rickety child and bad student."
76. In view of the above law laid down by Hon'ble Surpeme Court by way of various precedent, I will deliberate upon the compensation/damages to be awarded to the plaintiffs who are mother and father of the deceased Master Akash.
77. It has come on record that Master Akash was a bright student. PW5 is the witness from School where Master Akash was studying at the time of his death. He has produced his report cards wherein his performance is marked as good. Further plaintiff has filed on record other certificates i.e. All India Colour Competition of the year 1996 where Master Akash received First Prize, further he stood first in Legged race, Rakhi making Contest, first in slogan plus cartoon contest. The said various certificates are duly exhibited on record. This shows that he was a bright child participating in various extra curricular activities as well. These certificates along with the School report cards are duly exhibited on record.
78. Further plaintiff has placed on record Rx.PW1/24 which is a prescription of plaintiff no.2 taking treatment as her son had died. Further there is prescription dated 15.01.2001 as well whereby showing that she is undergoing treatment.
79. Further in order to show that his other child Ankit is a child with Special Abilities, he has placed medical documents on record Ex.PW1/26 from RML CS No. 58768/16 Page 29 of 35 Hospital. In those documents, it is observed that he has delayed milestones and is hyperactive. It is further observed that he is slow at work. Similaly in another prescription it is observed that he refused to go to School. Further he has filed certificate on record wherein it is observed that he is a case of "border line intelligence with phsycotic feature". The same are exhibited on record.
80. Further plaintiff no.1 Dr. G S Chandrakar himself is a MBBS Doctor. It is further vehemently argued that he wanted his son to take up the same profession as any father would want his son to be granted with same level of education at least which he himself had, if not more. I completely agree with the said argument. Plaintiff no.1 himself being a Doctor would have provided his son with a similar level of education, be it Doctor, Engineer, MBA etc. Any person with such a job or such in a profession as Doctor or Engineer in 1999, would have been earning an amount of Rs.20,000/ per month if not more.
81. After considering what he would have spent on himself and other priorities, it would not be difficult to calculate that he would be spending Rs.5,000/ per month towards the maintenance of his family. After starting to earn, it can be expected that he would support his family for next 15 years at least keeping in view the age of the plaintiffs and the longevity of life.
82. Further if he would have been alive and earning, he would have been financially supporting his brother who is a case of border line intelligence.
83. Hence, Rs.5000/ per month or Rs.60,000/ per annum is the income I presume which would have bene contributed by Master Akash towards the maintenance of family. Hence, compensation for loss of dependency comes out to be Rs.(60,000X15) =Rs.9 lacs which is hereby awarded to the plaintiffs. Nonpecuniary Damages
84. Further in Balram Prasad case for the loss of consortium, a lumpsum amount of Rs.10 lacs was awarded following Nizam's case, for pain and suffering.
CS No. 58768/16 Page 30 of 35In V. Krishnakumar Vs. State of Tamil Nadu, AIR 2015 SC 2836, it was observed "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".
85. Furthermore, it was observed that inflation is to be accounted for while awarding any compensation.
86. In Shripat Shankar Panchal Vs. Municipal Corporation for GR Bombay, 2007 SCC Online Bom 682, where an 11 year old boy had died, it was observed This, however, cannot be the reason to overlook the damages or compensation for physical shock, pain and suffering already suffered or likely to be suffered in future by the parents of the deceased. The inconvenience, hardship, discomfort, disappointment, frustration, continued mental stress in life because of this loss is also very material aspect while considering to grant compensation. Any amount of compensation cannot be equated with the human suffering or personal deprivation in such circumstances. Money is no good to the parents who lost son. In this background, I am of the view that this Court have to do the best they can and award what they think is just, reasonable and fair. Therefore, it is necessary to workout a pattern and method specially in the absence of any guidelines, rules and regulations to award and/or ascertain the compensation depending upon the facts and circumstances of each case.
87. Though the death of a child cannot be compensated to parents in terms of money yet some guess work has to be done to compensate the plaintiff in view of their acute mental agony and loss of life long care and attention which they were expecting from a child. Needless to say, the other child is a case of border line intelligence and hence not in a position to look after the plaintiffs. His death would CS No. 58768/16 Page 31 of 35 have resulted in physical shock, inconvenience, hardship, discomfort, dissapointment, suffering, pain and future shock likely to be suffered and contious mental stress in life. Plaintiff has already filed medical documents of his wife as already discussed above.
88. In view of all the above discussion, I hereby award compensation of an amount of Rs.7 lacs to the plaintiffs. Since I have granted the compensation as on today, hence no interest is awarded on this compensation. Interest
89. In Alfred Benedict & Anr. Vs. Manipal Hospital, Bangalore & Ors, (2015) 11 SCC 423, Hon'ble Supreme Court had awarded 9% simple interest per annum on the amount of compensation.
90. It was further observed in Balram Prasad case (supra) that it was an error if interest on the compensation was not awarded. It was observed in para 131 as under "Therefore, the National Commission in not awarding interest on the compensation amount from the date of filing of the original complaint up to the date of payment of entire compensation by the appellantdoctors and the AMRI Hospital to the claimant is most unreasonable and the same is opposed to the provision of the Interest Act , 1978. Therefore, we are awarding the interest on the compensation that is determined by this Court in the appeal filed by the claimant at the rate of 6% per annum on the compensation awarded in these appeals from the date of complaint till the date of payment of compensation awarded by this Court".
91. In view of the above mentioned judgments of Hon'ble Supreme Court, it is hereby directed that plaintiff is entitled to interest @ 9% simple interest on the amount of pecuniary compensation awarded. Interest is to be paid from the date of filing of the present suit till actual payment.
CS No. 58768/16 Page 32 of 35Cost of Litigation
92. Further in Balram Prasad case, Court refused to grant any damages for direct loss of income of dependants as it was held to be not the direct result of the negligence. However, in view of the fact that litigation lasted for 12 years, a compensation of Rs.1,50,000/ was granted under the head legal expenses.
93. The present matter was filed in the year 2002 before this Court and lasted for almost 15 years. Hence, I hereby award cost of litigation of Rs.1,50,000/ to the plaintiffs to be paid by the defendants.
Liability for Payment of damages
94. It was further observed in Achutrao Haribhau Khaodwa Vs. State of Maharashtra & Ors., (1996) 2 SCC 634 that Government Hospitals are vicariously responsible for the acts of its doctors. It was further held that Government is vicariously responsible for the negligent acts of his employees including the one involved in running of the Hospitals.
95. Further in Balram Prasad case doctors individually were liable to make payment up to the amount of Rs.10 lacs.
96. In my considered view, defendant no.4 is a doctor by profession and is a medical practitioner who has worked in various hospitals and is earning her livelihood as a doctor. Hence, it is hereby directed that an amount of Rs.7 lacs shall be paid by her to the plaintiffs and remaining amount shall be paid by defendant nos. 1, 2 and 3 equally to the plaintiffs.
Issue No.1Whether the death of Master Akash was due to the act of negligence of defendant no.4? OPP.
97. In view of the above discussion, it is held that death of son of plaintiffs Master Akash occurred due to negligence on the part of defendant no.4 Dr. Rema Nagpal.
CS No. 58768/16 Page 33 of 35Issue No.2Whether Master Akash died due to deficiency in services/equipment at defendant no.3 hospital? If so, to what effect? OPP.
98. In view of the above discussion, it is held that Master Akash died due to deficiency in services/equipment at defendant no.3, Hospital. Issue No.3Whether plaintiff No.1, being a doctor, is guilty of contributory negligence qua death of Master Akash, if so to what effect? OPD.
99. As already discussed above, there was no contributory negligence on behalf of the plaintiffs in the death of their son.
Issue No.4If issues No.1 and 2 are decided in favor of the plaintiffs, to what amount are the plaintiffs entitled to and from which of the defendants? OPP.
100. In view of the above discussions, plaintiffs are entitled to an amount of Rs.9 lacs along with 9% interest from defendants along with nonpecuniary damages of Rs.7 lacs along with litigation cost of Rs.1,50,000/. Issue No.5Whether the counter claim filed by defendant no.1 discloses no cause of action? OPP.
101. Defendant no.4 has not produced witnesses to show that she suffered loss of reputation after the present incident was reported in Media. Moreover, in view of my finding above, where I have held that defendant no.4 was negligent, no cause of action is disclosed by her counter claim and the same is hereby dismissed. Issue No.6Whether the counter claim filed by defendant no.4 is bad for mis joinder of necessary parties? OPP.
102. For a suit for defamation, it was required that defendant no.4 should have made the said Newspaper a party as well who had published the said report. But it was not done. Hence, Counter Claim is bad for nonjoinder of necessary parties also.
CS No. 58768/16 Page 34 of 35Issue No.7Whether the counter claim filed by defendant no.4 is not maintainable in the present form? OPP.
103. As I have already dismissed the Counter Claim after making above discussion, the present issue is irrelevant.
Issue No.8Have the plaintiffs defamed defendant no.4? OPD.
104. In view of the above discussion, it is held that plaintiffs have not defamed defendant no.4 and accordingly issue is decided.
Issue No.9To what damages is defendant no.4 entitled to from the plaintiffs? OPD
105. As I have dismissed the Counter Claim on merits, defendant no.4 is not entitled to any damages.
Issue No.10 Relief
1. It is hereby directed that defendants shall make payment of Rs.9 lacs along with interest @ 9% per annum simple interest from the date of filing of the present suit till the date of actual payment as pecuniary damages.
2. Damages for mental pain and agony are awarded as Rs.7 lacs.
3. Rs. 1,50,000/ is awarded as cost of litigation.
4. No other relief is made out.
5. Out of the above damages, an amount of Rs.7 lacs shall be paid by defendant no.4 Dr. Rema Nagpal and rest of the amount to be paid by Defendant nos.1, 2 and 3 equally.
File be consigned to record room.
Announced in an open Court On 27th day of January, 2018.
(TWINKLE WADHWA) ADJ03/PHC/NEW DELHI 27.01.2018 CS No. 58768/16 Page 35 of 35