State Consumer Disputes Redressal Commission
Smita S Chaudhari vs M G General Hospital on 18 October, 2022
Details DD MM YY
Date of disposal 18 10 2022
Date of filing 06 06 2016
Duration 12 04 06
BEFORE THE CONSUMER DISPUTES REDRESSAL COMMISSION
GUJARAT STATE AHMEDABAD.
COURT NO: 04
COMPLAIN NO.74 OF 2016
1) Sau Sunita @ Smita Santosh Chaudhari
Age 27 Occu. House wife
2) Sidharth Santosh Chaudhari
Both R/o of Narsi Galli, Desaipura Nandurbar
Tal. & Dist. Nandurbar -425412 (Maharashtra)
(complainant no.2 is minor so represented by
complainant no.1 is legal guardian mother) ------ Complainants
VS.
1) M.G. General Hospital, Navsari
Dist. Navsari (Gujarat)
2) Incharge Medical Officer,
C/o M.G. General Hospital, Navsari
Dist. Navsari (Gujarat)
3) Dr. Aasha Chaudhari
C/o M.G. General Hospital, Navsari
Dist. Navsari (Gujarat) ------ Opponents
BEFORE : DR. J. G. MECWAN, PRESIDING MEMBER
APPEARANCE : Ld.Adv. Smt.M.M. Desai for the complainants
Ld.Adv. B.P.Kakadia for the opponent no.1, 2, 3
ORDER BY DR. J. G. MECWAN,PRESIDING MEMBER
Page 1 of 21
nishita
JUDGMENT
1. Brief facts of the case are as under:-
1.1 Complainant No. 1 Mrs Sunita Santosh Cahudhari is mother of Complainant no. 2 and as no, 2 is minor Complainant no.1 is natural guardian of complainant no. 2.
1.2 The Opp. no.1 M.G. General Hospital is situated at Navsari where complainant No. 1 & 2 were admitted and given treatment Opp. No.2 is in-
charge of Hospital & Opp. No. 3 is doctor who is working in Opp. No. 1 hospital. As Opp. No. 1 to 3 gave medical treatment to complainant no. 1 & 2 and hence, as per say of complainants they are consumer of Opp. No. 1 to 3 as per consumer protection act 1986.
1.3 It is the case of complainant that complainant no. 1 after marriage is residence of Nandurbar Tal&Dist. Nandurbar (Maharshtra) and as she was pregnant went to Navsari at her maternal home in June 2014 at Navsari. On 18/6/2014, she had labour pain, so she went to Opp. No. 1 M.G. General Hospital, at Navsari. After giving consideration she was admitted in Opp. No. 1 hospital, where she gave birth to male baby whose age was 28 weeks, weight was 1200 gm. i.e. premature baby i.e. complainant no. 2 1.4 It is the case of complainant that complainant no. 2 was premature baby. So he was placed in an incubator in intensive care unit and administered 90-100% oxygen under the observation Opp. No. 2 & 3. and then the complainant No. 1 & 2 were discharged 0n 30/7/2014 so the infant complainant no. 2 was kept for about in 42 days in natal intensive care unit under care and observation of Opp. No. 2& 3.
1.5 The complainant further submitted that after some days complainant no. 2 had problem of watering of eye. So complainant no. 1 took her baby to Opp. No. 1 hospital were Opp. No. 3 examine the baby and advice some eye drops &gave assurance that complaint of watering of eye of baby will be cured soon by using those drops. After one month later complainant no. 1 &2 came to Nandurbar at their home. After coming to Nandurbar Page 2 of 21 nishita complainant no. 2 again has problem of watering of eye so complainant no.1 took baby to eye specialist Dr. Jay Desai at Nandurbar. After examining the baby i.e. complainant no. 2 and by knowing the history of baby Dr. Jay Desai suggested to ROP screening immediately at higher centre. Therefore complainant no. 1 took her baby at Bombay City Eye Institute & Research Centre, Bombay where he was diagnosed ROP stage V which was not curable at that stage and complainant No. 1 was told by doctors that the baby would have lost his eye vision and he will remain blind for life long. After hearing this, complainant no. 1 was shocked and for second opinion she checked eyes of her baby at Shankar Netraiaya at Chennai and there also baby was diagnosis as ROP stage V. i.e. total disattachment of retina.
After that complainant no.1 took her baby to many eye hospitals for further opinion but in other hospitals also she was told by Doctors that the ROP disease of baby was reached to stage V and at that stage it was not curable and as the baby was premature it was necessary to do ROP screening after the birth within few weeks as they have most chances of ROP disease and if the ROP screening was done after the birth and if ROP was diagnosed at earlier stage then it can be curable, but at this stage it is too late to treat the baby. so the complainant no. 2 became blind at the age of 1.5 years.
1.6 It is the case of complainant that the complainant no. 1 is a lay person and never have any idea of ROP screening of baby as it was the duty of oppo. no. 1 to 3 to suggest ROP screening of baby as they all are experts in medical field and are aware about history of premature birth of complainant no.2 Furthermore the complainant no. 1 & 2 was admitted to Opp. no.1 hospital for about 42 days and they all were well aware about the history of premature birth of complainant no.2 and the baby was kept in intensive care unit ( N I C U ) under care and observation of Opp. no. 1 to 3 but they never advice and suggested to do ROP screening of complainant no. 2 1.7 It is the further submission of complainant that at the time of discharge the only instruction was given to follow up every week for weight monitoring Page 3 of 21 nishita on discharge card and there was no advice of ROP screening of to be done of baby, and even after discharge from the hospital of Opp. no.1 complainant no.1 took her baby i.e. complainant no.2 for regular check up to Opp no. 1 as per hospital instructions but at that time also Opp. no 1 to 3 never suggested for ROP screening of complainant no. 2 or never gave any idea of ROP disease to complainant no.1 So here is gross medical negligence on the part of Opp. no.1 to 3 as they are negligent in their duty and are deficient in their services as they never advice ROP screening of complainant no.2 after birth as the baby was under their care and there observation and they all were well aware about the premature birth of baby. If the ROP screening was suggested to complainant no. 1 by Opp. no. 3 after the birth and detected at earlier stage then it can be treated and curable. So it is duty of Opp. no. 1 to 3 to suggest or to do ROP screening of complainant no. 2 which they fails to do. Therefore Complainant no.2 has become blind before seeing this beautiful world and at the beginning of his life he became blind and will remain blind for life long. Here complainant also submitted that complainant no.2 will require further medical treatment at National or International Research Centre for that also he may require heavy financial support which the complainant no.1 would not able to pay as it is not in their financial capacity.
1.8 This is further submission of complainant that the complainant no.2 is also require special education for blind student and complainant no. 2 will also has to face great difficulties for education in future. Complainant no.2 in future will remain totally dependent on others. The complainant no. 1 is from middle class family, her husband is peon in Insurance Company on daily wages & complainant no. 1 before the birth of complainant no. 2 was doing cooking work in 2-3 house and was getting Rs. 5000/- per month but now as complainant no.2 is blind and he needs full time care and attendance so now she has to stay at home to take care and in future also she has to stay at home to take care of baby and in future also she will not be able to go outside the home for work.
Page 4 of 21nishita 1.9 It is the case of complainant that children are further hope for parents and when children grown up they become support and hope to their parents in old age but in this situation the complainant no. 2 will be totally dependent on his parents for long life- hence the complainants lost their future. Due to gross medical negligence act of Opp. no. 1 to 3 the life of complainant no. 2 is totally in dark as he became totally blind and is deprived from all joys and happiness in the life. The complainant no. 1 and her family are going through stress and depression and Opp. no. 1 to 3 are totally responsible for this situation of complainants. This condition of complainant no.2 is due to gross medical negligence and carelessness of Opp.no.1 to 3. Hence they are responsible for this condition of complainant no. 2 and are liable to pay compensation as described under:-
a) The complainant no.2 will required as about 10000/- per month for future medical expenditure, expenses of vehicles for outdoor visits, educational expenses and one attendant for life time to take care so totally he will require Rs. 60 lakhs as further expenses.
b) As the complainant no.2 is now two years old and he is blind at this age so he will require full attendance of his father & mother for long life so their lost in terms of lost of wages is Rs. 5,00,000/-
c) Rs. 15,00,000/- as loss of education, job future, enjoyment of life of complainant no.2
d) Rs. 5 lakhs to mental and physical agony of complainant.
Complainant has submitted following documents in the complainant,
1. M.G.General Hospital Treatment Papers & Progress Report
2. M.G.General Hospital Discharge card
3. M.G.General Hospital Treatment Paper date 19/8/2014 & 11/9/2014
4. Desai Eye Hospital & Laser centre Nandurbar Case Paper
5. Suryakant Eye HospitalNandurbar Case Paper
6. Bombay City Eye Institute & Research Centre Mumbai - Patient ID Card & Reference Latter
7. Shankar Netraylay Medical Research Foundation Chennai ROP Screening Report
8. Adv. Rohit Ketkar Nandurbar Notice dt. 5/4/2016 & Receipt of Notice (3)
9. Medical literature Paediatrics child Health 2010 Dec. 15(10)667 - 670
10. Fact about retinopathy of prematurity (ROP) National Eye Institute Medical literature
11. Retinopathy of prematurity
12. Peadiatrice January 2013 volume 131 / Issue 1
13. Clinical Practice Patterns in Ophthalmology Page 5 of 21 nishita
14. Americal Academy of Ophthalmology
15. Peadiatrice 117 (2) 572
16. Retinopathy of prematurity An Update
17. Disability Certificate of Civil Surgeon, Civil Hospital Nandurbar
18. Unique Disability ID
19. Aadhaar Card of Siddharth Santosh Chaudhari
20. Mamta Card
21. Discharge Card
22. RTI Receipts (Two)
2. Defence: on date 28/8/2019 this commission has closed the right of opponents to file written statement, thereafter on 23/8/2022. Opponent No. 1, 2, 3 have requested to take their written statement on record but in the light of the judgement Hon'ble Supreme Court in new India Assurance Ltd. Vs. Hilli multipurpose cold storage pvt. ltd. request of opponents not accepted.
On 02/09/22 opponents have submitted the written arguments medical literature and following judgements.
1) Achutrao Haribhau Khodwa & Ors. Vs. State of Maharashtra (1996) 2 SCC (2) 634] (SC)
2) Medical Association Vs.V.P.Shantha&Ors.[1995 SCC (6) 651](SC)
3) Smt. Vinitha Ashok Vs. Lakshmi Hospital & Ors. [Appeal (civil) 2977 of 1992] (SC)
4) State of Haryana &Ors. Vs. Raj Rani [Appeal (civil) 2743 of 2002] (SC)
5) State of Punjab Vs. Shiv Ram &Ors[Appeal (civil) 5128 of 2002] (SC)
6) Punjab - Haryana High Court Joginder Singh Vs. State of Haryana [RSA No. 1365 of 2007]
7) Union of India Vs. N.K. Srivasta [ Civil Appeal No 2823 of 2020] (SC)
8) State Consumer Disputes Redressal Commission, UP, Lucknow order in Appeal no.2017 0f 2006 In the above judgements at serial no. 1 to 6 are regarding negligence of the doctor wherein it has been held that a doctor is not guilty of negligence if he acted accordance with practice accepted by a responsible body of medical men. While judgment at Sr. No. 7 and 8 are related to services of the government hospital and it has been held, that if services given free of cost then complaint against the government hospital cannot be maintainable under Consumer Protection Act.
Opponent has also submitted medical literature 'Project operational guidelines' of IIPH Hyderabad. Where in following has been mentioned:
"Retinopathy of prematurity is a dynamic, time-bound disease that is not present at birth. The condition typically starts 2-3 weeks after birth and progresses (or regresses) over the next 4-6 weeks. There is therefore, only a narrow period of time for screening and for treatment, if Page 6 of 21 nishita required. The first retinal examination usually takes place while the body is still receiving neonatal care in the hospital or immediately after discharge. Regular retinal examination/screening needs to continue until it is safe to discontinue further screening i.e. when the retinal blood vessels have become mature, or the signs of ROP have resolved, or urgent treatment is needed."
2.1 In this matter right of opponent to file written statement is closed but opponents have submitted medical literature and judgements in their defence. Therefore, whether to consider these documents or not, for that purpose this commission has taken into consideration the judgement of Hon'ble Supreme Court in Civil Appeal No. 3427 of 2020 Sugandhi (dead) by Lrs. vs. P. Rajkumar where in Hon'ble Apex Court observed as under:
It is often said that procedure is the handmaid of justice. Procedural and technical hurdles shall not be allowed to come in the way of the court while doing substantial justice. If the procedural violation does not seriously cause prejudice to the adversary party. Courts must lean towards doing substantial justice rather than relying upon procedural and technical violation. We should not forget the fact that litigation is nothing but a journey towards truth which is the foundation of justice and the court is required to take appropriate steps to thrash out the underlying truth in every dispute. Therefore, the court should take a lenient view when an application is made for production of the documents under sub-rule (3).
In view of the above observation of the Hon'ble Supreme Court this commission has decided to go through the above medical literature and judgments produced by the opponents in the interest of justice.
3 Argument of the complainant :
Learned Advocate argued out that as complainant No. 2 is under care and treatment of opponents as complainant No. 2 is premature baby and opponents are well-known about the history of premature birth of complainant No. 2 but though there is high risk of ROP in premature baby opponents never suggested ROP screening. Further more in written argument opponents are accepting that possible tests for premature baby Eye exam to check for problems with retina (ROP) So it is duty of treating Doctor to suggest for ROP or to suggest for consulting ophthalmologist. But opponents never suggest Complainant No. 1 to do screening of ROP of New born premature baby ( Complainant No. 2) or to consult Ophthalmologist. 3.1 It is further submitted by Learned Advocate for the complainant that as opponents are expert in medical field so it is their duty to suggest any test or screening or to consult other expert Doctor but opponents fails to do their Page 7 of 21 nishita duty which is gross medical negligence on their part. But opponent have falsely stated in written argument that at the time of discharge and also at the time of follow up it has been advised to complainant or their family for ROP screening or to consult Ophthalmologist, If it is suggested it must be written on the discharge card, but on the discharge card in the column of ROP Screening 'No' is written by the Opponents and on dated 25.08.2014 when baby has problem of watering of eye Opponents suggested few eye drops on that consultation paper but "to consult Ophthalmologist" is not written or never suggested. Furthermore it has been accepted by the opponents in written argument that there is maximum chances of ROP in premature baby and if not detected and treated at proper time it lead to total deattachment of retina and patient may become totally blind for life time.
But in Argument it is not written by the Opponents that, when they suggested ROP Screening to the baby so it is accepted by the Opponents that they never suggested ROP screening to Complainant No 2 and as ROP Screening is not done ROP decease of Complainant No 2 is not detected and remain untreated. If ROP is detected as early stage, then it is treated and curable.
3.2 It is further argued out by Ld.Adv for the complainant that It is written in the arguments that Opponents suggested to consult Ophthalmologist to the relatives of Complainant No.2 even after suggestion they did not consult. This is false, not true and incorrect statement. When Doctor Jay Desai Nandurbar (Maharashtra) Ophthalmologist suggested ROP Screening of Complainant No.2, his parents took him for screening to Bombay- 430 KM and Chennai-1500 KM. such far away station from Nandurbar. So if Opponents suggested ROP screening in Navsari they will definitely took their baby for screening to Surat or Ahmedabad which are at short distance. In support of argument complainant has submitted following judgement,
1) FA.NO.210 OF 2015 NCDRC Delhi Royapettah Govt. Hospital Vs. R. Laxmi
2) S.C. Civil appeal 8065 of 2009V.Krishnakumar Vs. state of Tamil Nadu
3) 2016(2)CPR 738 (NC)Master Rishabh Sharma Vs. Dr. Rama sharma
4) SC Civil appeal 6619 0f 2016Maharaja Agrasen Hospital Vs .Mr. Rishabh sharma
5) NCDRC Bhajanlal Gupta & OTHER Vs. Moolchand Khatri Ram Hospital
6) SC Civil Appeal 4024 of 2003Smt. Savita Garg Vs. The Director National Heart Ins.
Page 8 of 21 nishita 7) DR. V. Pahwa Vs. Surindra Mohan Ghosh NCDRC 8) P. Venkata Lakshmi Vs. Dr. Y. Savita Devi NCDRC 9) Health Secretary, Ministry of health & ANR. Vs. K. Albert & ANR(NC). 10) D. Pampa Pathi& ANR. Vs. Dr. Dayanand & ORS.(NC) 4. Merit of the case:
In the present matter it is an averment of complainant that her child (complainant no 2) born premature with 1200 gram weight but though there was a chances of ROP (Retinopathy of Prematurity) no test for ROP was conducted by opponent hospital/ opponent doctor within 4 to 5 weeks of birth . Further they have never cautioned the patient about such risk of ROP before or after the delivery, and as a resultant her child has lost his vision.
On the other hand, opponents have submitted various judgments of Apex court and submitted that opponent no.1- is Government hospital and opponent no.3 - is Doctor of Government hospital. Being a government hospital free service was given to the complainants and hence when no consideration paid by complainants then they are not consumers under consumer protection Act 1986.
Hence in case on hand following points are required to determine:
(a) Whether treatment given by opponent hospital would fall within ambit of 'service' as defined in section 2(1) (o) of the act or otherwise?
(b) What is the duty of Doctor when child born premature with less than 1500 gram weight?
(c) Whether Doctor has performed his/her duty as per medical practice or otherwise?
4.1 As far as point (a) above is concerned I have gone through the judgments of Hon'ble Supreme court Savita garg case IV (2004) CPJ 40 (SC) and V Krishna kumar v/s state of Tamilnadu& others where in it has been held that Government hospital is also liable for medical negligence. Further in the case of Indian Medical Association v/s V P santhana it has been held by Hon'ble Supreme court that in hospital where charges are required to be paid by persons availing services but certain categories of persons who cannot afford to pay are rendered service free of charges and in that case Page 9 of 21 nishita doctors and hospitals do provide free service to some of the patients belonging to the poor class but the bulk of the service is rendered to the patients on payment basis. The expenses incurred for providing free service are met out of the income from the service rendered to the paying patients. The service rendered by such doctors and hospitals to paying patients undoubtedly fall within the ambit of Section 2(1) (o) of the Act.
4.2 Furthermore Hon'ble National Consumer Redressal Commission in case of Union of India through secretary in the Ministry of Health and family welfare and safdarganj Hospital ,NCDRC sustained the findings of medical negligence against safdarganj hospital and directed to pay compensation quantified at Rs 2lakhs and in the appeal arises from an order of NCDRC ,Hon'ble Supreme court held as under:
From the record, we find that, in the present case, the only factual foundation that was led before the District Forum was the evidence of Dr K C Aggarwal who deposed that the patient in question had been treated free of charge. We have scrutinized the grounds of appeal in the Special Leave Petition. Not even a single ground has been raised by Safdarjung Hospital, challenging the factual basis of the finding that has been arrived at by the NCDRC on the issue of jurisdiction. Nor has any other factual material been placed on the record to enable the Court to decide on whether it satisfies the tests enunciated in Indian Medical Association. Hence, in the absence of a proper challenge before the District Forum, the SCDRC or the NCDRC and, as we have seen above, even before this Court, it would be inappropriate for this Court to render a conclusive opinion. We ought not to do so in the absence of a factual foundation in the pleadings and evidence. We are also mindful of the fact that the award in the present case is in a relatively small amount of Rs 2 lakhs. However, Mr. R S Suri submitted that it would be appropriate for this Court, having regard to the recurring nature of the issue, to leave the question of jurisdiction open to be decided in an appropriate case where a factual foundation can be laid by the Union of India and Safdarjung Hospital, both in the pleadings and evidence. We consider this to be appropriate so as to ensure that while we are affirming the judgment of the NCDRC in the present case on the ground that the quantum of the claim is small enough to not warrant the intervention of this Court, the decision of this Court (or of the NCDRC) is not regarded as a precedent for having decided a question of law in the generality of cases that may arise involving Safdarjung Hospital. We therefore confine the judgment of the NCDRC to the peculiar factual background, as we have noted in the present case. We clarify that we have left open the issue as to whether Safdarjung Hospital would be governed by the provisions of the Act, more particularly, having regard to the provisions of Section 2(1)(o), to be decided in an appropriate case. The impugned judgment of the NCDRC shall not be cited as a precedent. The issue, including any other issues which may arise is left open to be adjudicated upon in an appropriate case.
In the present case nothing produced that opponent no.1 hospital providing free services to all patients and therefore in the light of the observations of Page 10 of 21 nishita Hon'ble Apex courts in Savita garg case and V Krishna kumar v/s state of Tamilnadu case this commission disagree with the argument of opponents that being a Government Hospital Opponent No.1 would have not to be governed by the provision of Consumer Protection Act 1986.
4.3 As far as point (b) above is concerned, it is an admitted facts that Complainant no 2 /Child of Complainant no 1 was born premature with 1200 gram weight .
I have carefully gone through the case papers and discharge card of hospital which are on record of this matter where in it has been shown that 'ROP screening- NO'. Furthermore as per record complainant no 2 was born on 18/6/2014 and discharged from hospital on 30/7/2014 hence complainant no 2 was kept in opponent hospital for about 42 days in Natal Intensive care unit under care and observation of opponent no.1, 2& 3. As per instruction of opponents, after discharge complainant 1&2 visited the opponent no 1 hospital for regular check up and after some days when complainant no 2 had problem of watering of eye she took her baby on 25/8/2014 to the hospital of opponent no 1 where opponent no 3 examine the baby and advice some eye drops but at that time also ROP screening was not suggested by opponent 3.
4.4 Medical Literature on ROP:
In this regard I have accessed numbers of medical literatures on ROP for the guideline for screening of ROP and its treatment. In the article 'Programme ,planning and screening strategy in retinopathy of prematurity'(Indian journal of ophthalmology, year 2003volume 51 page 89-
87) ROP screening programme and facts are shown. Its relevant text is reproduced as below:
• Why should we screen for ROP?
There are several compelling reasons to have a screening programme for ROP.[16] Firstly, the premature child is not born with ROP and retinal disease is not present at birth. Each such child has a potential for normal vision, even if the retina is immature at birth. Screening aims to identify those infants who have reached or have the potential to reach threshold ROP, which if untreated may cause blindness or visual impairment. This has medico-legal implications. There are indefensible legal repercussions should an infant develop ROP and retinal detachment, but had not received eye examination. Secondly, the grief and the personal tragedy for the family is tremendous, besides the economic burden of such childhood Page 11 of 21 nishita blindness. Early recognition of ROP by screening[16] provides an opportunity for effective treatment.
• Whom should we screen?
The aim of screening premature babies for ROP is to detect all treatable neonates, with minimal expense of time and resources. This also aims at not screening those babies who are unlikely to get a severe form of ROP. The criteria for screening babies are based on two critical factors - the birth weight and the gestational age. Other additional factors contributing to the development of ROP are also taken into consideration.
Although much has been written about the association of oxygen use and ROP, it has been found that oxygen is not the cause of ROP. [3] On the contrary, low levels of oxygen and slow weaning from oxygen may help regression of early stages of ROP.[3] Oxygen levels must be well monitored to ensure optimum oxygen saturation of blood (95-98%), since hypoxia is a factor in increasing abnormal retinal neovascularisation.
• When should screening begin?
A premature infant is not born with ROP. The retina is immature, but this is perfectly natural for their age. It is the post-natal developments in the retinal vessels that could lead to ROP. The sequence of events leading to ROP usually takes about 4-5 weeks except in a small subset of premature infants who develop Rush disease in 2-3 weeks. Therefore routine screening should begin at no later than four weeks after the birth and possibly even earlier for infants at higher risk (2-3 weeks)[4],[16] [Table - 2]. We strongly recommend that one session of retinal screening be carried out before day 30 of the life of any premature baby.
• Screening Criteria for ROP:
Which babby to screen
(a) Birth weight of less than1500 gms (though in India this reported up to 1700gms)
(b) Gestational age at birth ( length of pregnancy )of less than 34-35
(c)Exposed to oxygen to more than 30 days weeks.
(d)Infants weighing less than 1200 gms at birth and those born at 24-30 weeks gestational age are particularly high risk of not only developing ROP but also developing it earlier ,in more aggressive forms (Rush disease ).Hence the definite need to screen these smaller babbies at the earliest.
(e) Other factors that can increase risk of ROP and where screening should be considered are other mature babies (͔< 37 weeks and /or <2000 gms) with • Respiratory distress syndrome • Sepsis • Multiple blood transfusion • Multiple birth (twin/triple) • Apnoeic episodes • Intraventricular hemorrhage • Pediatrician has index of concerns for ROP Above medical literature clearly show duty of Doctor in case of birth of premature baby with less than 1500 gms weight.
Furthermore looking to the above medical literature it is crystal clear that screening of ROP needs to be started timely after premature birth to prevent blindness. In the instant case as per medical record no ROP screening Page 12 of 21 nishita initiated during 42 days NICU period in hospital. Furthermore opponents never suggests complainant no 1 to do screening of ROP of new born premature baby-( complainant no 2) or to consult ophthalmologist.
4.5 As far as point (3) above is concerned, it is crystal clear that opponents have not performed duty as per above medical practice. As opponents are experts in medical field so it is their duty to suggest any test or screening or to consult other expert Doctor but opponent fails to do their duty which is gross medical negligence on their part.
Regarding negligence ,Black's Law Dictionary defines Negligence as, "conduct, whether of action or omission, which may be declared and treated as negligence without any argument or proof as to the particular surrounding circumstances, either because it is in violation of statute or valid Municipal ordinance or because it is so palpably opposed to the dictates of common prudence that it can be said without hesitation or doubt that no careful person would have been guilty of it "(Negligence, BLACK'S LAW DICTIONARY -2nd edn.).Simply put, negligence is said to have occurred when a medical practioner fails to exercise a reasonable degree of care in administering treatment to his patient.
Regarding negligence of Doctor ,Hon'ble Apex courts has observed as under:
• In Laxman v. Trimbak Bapu Godbole & others AIR 1969 SC 128 it was laid down as under :
The duties which a doctor owes to his patient are clear. A person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person when consulted by a patient owes him certain duties, viz., a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give or a duty of care in the administration of that treatment. A breach of any of those, duties gives a right of action for negligence to, the patient. The practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise 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 require : (cf. Halsbury's Laws of England 3rd ed. vol. 26 p. 17).
• Hon'ble Supreme court in the case of Nizam Institute of medical science v/s Prasanath s Dhanaka&ors 2009 IND LAW SC1047 held as under: We are also cognizant of the fact that in a case involving medical negligence, once the initial burden has been discharged by the complainant by making out a case of negligence on the part of the hospital or the doctor concerned, the onus then shifts on to the hospital or to the attending doctors and it is for the hospital to satisfy the Court that there was no lack of care or diligence.Page 13 of 21
nishita • Hon'ble Supreme court in the case of V. Krishna kumar v/s State of Tamilnadu&ors. In which the facts are similar and child suffered ROP. The Hon'ble court observed negligency on the part of the opposite parties who failed to screen the manage the ROP during the advancing statge and observed as under:
"It must ,however be noted that the discharge summary shows that the above writing was in the nature of a scrawl in the corner of the discharge summary and we are in the agreement with the finding of the NCDRC that the said remarks are only a hastily written general warning and nothing more. After a stay of 25 days in the hospital ,it was for the hospital to give a clear indication as to what was to be done regarding all possible dangers which a baby in these circumstances faces. It is obvious that it did not occur to the respondents to advise the appellant that the baby is required to be seen by a pediatricophthalmologist since there was a probability of occurrence of ROP to avert permanent blindness .This discharge summary neither disclose a warning to the infants parents that the infant might develop ROP against which certain precautions must be taken ,nor any signs that the Doctors were themselves cautious of the dangers of development of ROP."
Consumer case no 119 of 2007 in Master Rishibh Sharma v/s Dr Rama Sharma &ors(NCDRC)In which the facts are similar and child suffered ROP. The Hon'ble NCDRC observed negligence on the part of the opposite parties who failed to screen the manage the ROP during the advancing stage and observed as under:
"Conclusion: Because ROP is sequential and timely treatment has been proven to reduce the risk of vision loss, it is imperative that at-risk infants receive carefully timed retinal examinations and that all physicians who care for at-risk pre-term infants should be aware of the importance of timing. It should be borne in mind that screening for ROP needs to be initiated timely after birth to prevent blindness. It is the responsibility of the caring pediatrician to initiate screening by referring to an ophthalmologist and it is the responsibility of the ophthalmologist to do correct screening and treatment. This has immense medico-legal implications because if a child goes blind due to missed or late screening, then the pediatrician and the ophthalmologist are at a very high risk of litigation. In the instant case, the main question swirls around, whether the OP-5 performed ROP screening or not, at OP-2 hospital? ROP screening is a team work of pediatrician, ophthalmologist and NICU nurse. On the basis of discussion in foregoing paras, we find many lapses on the part of the OPs like no proper medical documentation of ROP screening procedural details. It should be borne in mind that as per referral on 25-4-2006, the OP-5 should have performed retinal examination with binocular indirect ophthalmoscope on dilatation of pupil with scleral depression to ascertain a vascular zone at periphery of retina. Nothing is forthcoming from page 102 of the medical record. Therefore, it appears to be a bare visual examination done by OP- 5 in haste to cover up the case. Thus, we are of considered view that on 26-4-2005 the OPs-3 to 5 have neither performed ROP screening nor advised follow up of ROP for the child. The patient visited hospital on 3-5-2006 for follow up, but nothing is in record about ROP testing. It is not a standard of practice or due care of the patient. Thus, a medical negligence. It is pertinent to note that in the instant case the baby was premature 32 weeks, the weight was 1500 gms. The team of doctors at OP-2 should have been alert about the chances of ROP in the premature baby/complainant No.1. It is very vital that judicious oxygen therapy and judicious use of blood transfusions, transfusion of packed RBCs is another risk factor of ROP. Adult RBCs are rich in 2,3 DPG and adult Hb binds less firmly to oxygen, thus releasing excess oxygen to the retinal tissue. Packed cell transfusions should be given when haematocrit falls below following ranges: ventilated babies 40%, babies with cardio-Page 14 of 21
nishita pulmonary disease but not on ventilators 35%, sick neonates but not having cardiopulmonary manifestations 30%, symptomatic anaemia 25%. But, in the instant case blood component therapy was given. Therefore, we hold both the Pediatricians (OP 3 and 4) along with OP-5 liable for the said negligence.
In the above matter, against the order of NCDRC appeal was filed in Hon'ble Supreme Court wherein Hon'ble Supreme Court has confirmed the order of NCDRC but compensation amount enhanced from 64,00,000 to 76,00,000/.
In view of the above observations of Hon'ble Apex courts, in the instant case also opponents failed to exercise reasonable care and skill and hence in the considered opinion of this commission opponents owed a legal duty of care to the complainants. Furthermore failure to inform the complainant no 1 (Mother) to the necessity to have the ROP test conducted in the case of pre mature baby and the high risk involved which could lead to total blindness was a breach of duty. Further the failure to carry out the ROP test which is mandated by standard medical practice while the baby was under their direct care and supervision from birth till 42 days NICU period and thereafter further follow up time duration., amounted to gross negligence by the opponent Doctor and deficiency in service by hospital.
5. In the case on hand it is an averment of complainants that Hospital had not provided medical case papers after discharge from hospital and they have obtained said medical papers through RTI application. I have gone through the record, RTI fee receipt produced in this matter is on record. Furthermore in the letter dt. 29.8.2018 of opponent hospital addressed to Addl. Director Health services it has been mentioned that copy of case papers sought for through RTI and it was supplied. As regard to the providing of discharge summary and medical treatment papers, Medical Council of India has framed rules which read as under:
The Medical Council of India has imposed an obligation on Hospitals as per the regulations notified on 11th March 2002, amended up to December 2010 maintain the medical record and provide patient access to it. These regulations were made in exercise of the powers conferred under Section 20A read with section 33(m) of the Indian Medical Council Act, 1956 (102 of 1956) by the Medical Council of India with the previous approval of the Central Government, relating to the Profession Conduct, Etiquette and Ethics of registered medical practitioner, namely:-
Maintenance of Medical Records:-Page 15 of 21
nishita 1.3.1 Every physician shall maintain the medical record of his/her indoor patients for a period of three years from commencement of the treatment in a standard proforma laid down by the Medial Council of India and attached as Appendix 3.
1.3.2 If any request is made for medical records either patients/authorized attendant or legal authorities involved, the same may be duly acknowledged and documents shall be issued within the period of 72 hours."
In RaghunathRaheja Vs. Maharashtra Medical Council, AIR 1996 Bombay High Court held under:
"We are of the view that when a patient or his near relative demands from the Hospital or the doctor the copies of the case papers, it is necessary that the Hospital authorities and the doctors concerned to furnish copies of case papers to the patient or his near relative. In our necessary for the Medical Council to ensure that necessary directions are given to all the Hospitals and the doctors calling upon then to furnish copies of the case papers and all the relevant documents pertaining to the patient concerned. The hospitals and the doctors may be demanding necessary charges for supplying the copies of such documents to the patient or the near relative. We, therefore, direct the first respondent Maharashtra Medical Council to issue necessary circulars in this behalf of all the hospitals and doctors in the State of Maharashtra. We do not think that hospital or the doctors can claim any secret confidentiality in the matter of copies of the case papers patient. These must be made available to him on demand payment of usual charges. If necessary the Medical Council may issue a press-note in this behalf giving it wide publicity in all the media. "
In view of the above, when opponent Hospital has not provided medical case papers to the patient/relatives within 72 hours as per extent rules and shown deficiency in service, then for the above negligence and deficiency in service of opponent Hospital, the complainant is entitled to get compensation and therefore in the opinion of this commission if opponents No.1 to 3 pay Rs. 75,000/- (Rupees seventy five thousands only) to the complainants for not providing medical case papers as per extent rules then it will meet end of justice.
6. Vicarious liability of Hospital Hon'ble supreme court and Hon'ble National commission in a number of judgements held that hospital will be vicarious liable on numerous grounds, on different occasions. Employers are also liable under the common law principle represented in the latin phrase ' qui facit per alium- facit per se ' i.e. the one who acts through another, acts in his or her own interest.
As far as liability of the Hospital is concerned, Hospital is liable with respect to medical negligence that may be direct liability or vicarious liability which Page 16 of 21 nishita means the liability of an employer for the negligent act of its employees. An employer is responsible not only for his own acts of commission and omission but also for the negligence of its employees, so long as the act occurs within the course and scope of their employment. This liability is according to the principle of 'respondent superior' meaning 'let the master answer'. A hospital can be held vicariously liable on numerous grounds on different occasions. Several Hon'ble High Courts Judgments have held hospitals vicariously liable for damages caused to the patients by negligent act of their staff.
Hon'ble Kerala High Court in the case of Joseph @ Pappachan v. Dr. George Moonjerly [1994 (1) KLJ 782 (Ker. HC)], has observed as under:
"Persons who run hospital are in law under the same duty as the humblest doctor: whenever they accept a patient for treatment, they must use reasonable care and skill to ease him of his ailment. The hospital authorities cannot, of course, do it by themselves; they have no ears to listen to the stethoscope, and no hands to hold the surgeon's scalpel. They must do it by the staff which they employ; and if their staffs are negligent in giving treatment, they are just as liable for that negligence as anyone else who employs other to do his duties for him."
Hon'ble Madras High Court in the case of AparnaDutta v. ApolloHospitals Enterprises Ltd. [2002 ACJ 954 (Mad. HC)], has observed as under:
"It was the hospital that was offering the medical services. The terms under which the hospital employs the doctors and surgeons are between them but because of this it cannot be stated that the hospital cannot be held liable so far as third party patients are concerned. It is expected from the hospital, to provide such a medical service and in case where there is deficiency of service or in cases, where the operation has been done negligently without bestowing normal care and caution, the hospital also must be held liable and it cannot be allowed to escape from the liability by stating that there is no master-servant relationship between the hospital, and the surgeon who performed the operation. The hospital is liable in case of established negligence and it is no more a defense to say that the surgeon is not a servant employed by the hospital, etc."
Hon'ble National Commission in case of Smt. Rekha Gupta v. Bombay Hospital Trust &Anr.[2003 (2) CPJ 160 (NCDRC)], has observed as under:
"The hospital who employed all of them whatever the rules were, has to own up for the conduct of its employees. It cannot escape liability by mere statement that it only provided infrastructural facilities, services of nursing staff, supporting staff and technicians and that it cannot suomoto perform or recommend any operation/ amputation. Any bill including consultant doctor's consultation fees are raised by the hospital on the patient and it deducts 20% commission while remitting fees to the consultant. Whatever be the outcome of the case, hospital cannot disown their responsibility on these superficial grounds. The hospital authorities are not only responsible for their nursing and other staff, doctors, etc. but also for the anaesthetists and surgeons, who practice independently but admit/ operate a case. It does not matter whether they are permanent or temporary, resident or visiting consultants, Page 17 of 21 nishita whole or part time. The hospital authorities are usually held liable for the negligence occurring at the level of any of such personnel. Where an operation is being performed in a hospital by a consultant surgeon who was not in employment of the hospital and negligence occurred, it has been held that it was the hospital that was offering medical services.
In view of the above observation of Hon'ble Apex Courts, in the instant case also when treating Doctor of the opponent hospital is liable for the act of the medical negligence then opponent Hospital is vicariously liable for the act of its doctor.
7. Quantification &Compensation:
Complainants had prayed for the total compensation of Rs. 95, 00,000/-In this context, The Hon'ble Supreme Court in Nizams Institute of Medical Sciences Vs. Prasanth S.Dhananka and Ors.(2009) 6 SCC 1 held that; We must emphasize that the court has to strike a balance between the inflated and unreasonable demands of a victim and the equally untenable claim of the opposite party saying that nothing is payable. Sympathy for the victim does not, and should not, come in the way of making a correct assessment, but if a case is made out, the court must not be chary of awarding adequate compensation. The adequate compensation that we speak of, must to some extent, be a rule of thumb measure, and as a balance has to be struck, it would be difficult to satisfy all the parties concerned.
In Balram Prasad Vs. Kunal Shah and Ors. (2014) 1 SCC 384, the Honble Supreme Court has again emphasized that it is the duty of the Tribunals, Commissions and the Courts to consider relevant facts and evidence in respect of facts and circumstances of each and every case for awarding just and reasonable compensation.
Regarding the principle of awarding compensation it has been recognized and relied on in Malaykumar Ganguly vs. Sukumar Mukharjee (2009)9 SCC 221 in the following passage latter:
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. [ (1880) 5 AC 25 ].
I have gone through the judgement of Hon'ble Supreme Court in Appeal No.6619 of 2016. The facts findings and law points of that case are very similar to this complaint. In the present case the negligence and deficiency in service is proved against OP 1 to 3.Hence Considering the entirety, this Page 18 of 21 nishita commission follow the decision of Hon'ble Supreme court in appeal No. 6619 of 2016 awarding compensation of 76 lakhs considering the apportioning for inflation and apportionment of liability. In the instant case, the child, Master Sidharth, has been rendered blind for life. The darkness in his life can never be really compensated for, in money terms. Blindness can have terrible consequences. The family belongs to the middle class, which incurred expenses on the child. Undoubtedly, the care of visually disabled child needs reasonable spells of time. Master Sidharth may also face great difficulties in getting education and social life.It is pertinent to note that Sidharth is 08 years old, his father is daily wages peon in insurance company and his mother is home maker.
Therefore in the opinion of this commission there should be adequate compensation for the pain and suffering and future care, furthermore there would be necessary while accounting for inflationary trends.
8. Apportioning for Inflation:
As observed in V.Krishnakumar's case inflation overtime certainly erodes the value of money and future compensation calculated by using standard future value formula as shown below:
FV= PV x (1+r)n where FV= Future value PV= Present value r = rate of return n= time period Hence in the instant case by adopting above formula calculation is made as under:
As per record of this case Complainant is middle class family and therefore yearly expenses minimum Rs 2,50,000/ can be assume in the present time and out of which Rs 50,000/ would be a need for Sidharth's living expenses. At present age of Master sidharth is 08 years and if his life expectancy is taken to be 70 years then for the next 62 years this inflationary principle must be adopted at a conservative rate of 1% per annum.
FV= PV x (1+r)n Page 19 of 21 nishita FV = 50,000 x (1+ 1.01 ) x 62 FV = 50,000 x 124.62 Future Value = Rs 62,31,000/-
9. Compensation to Mother for life time attention towards Master Sidharth :
Hon'ble Supreme court in Spring Meadows Hospital & others vs. Harjol Ahluwalia (1998 4 SCC 39 ) acknowledged the importance of granting compensation to the parents of a victim of medical negligence in lieu of their acute mental agony and lifelong care and attention they would have to give to the child. Thus the some expenditure must be allowed to mother. Therefore in the considered opinion of this commission an award of Rs 07 lakhs to mother (Complainant no 1) is just & proper amount and it would meet end of justice.
10 In view of the aforementioned discussion, on the basis of the relevant medical literature and decision of Hon'ble Supreme court on medical negligence ,this commission allow this complaint and fix the liability for total sum of Rs. 69,31000/-(62,31000 + 7,00,000) upon opponent no 1 to
3. Further opponents shall pay Rs 75000/- for not providing medical case papers as per extent rules and Rs. 10,000/- toward cost of complaint and hence, following final order is passed.
ORDER
(a) Present complaint is partly allowed.
(b) Opponents no. 01 to 03 are jointly and severally ordered to pay compensation of Rs.69,31000/- (Rupees sixty nine lakhs thirty one thousands) to the present complainant no 1 &2 .
(c) The opponents no. 1 to 3 are jointly and severally also ordered to pay Rs. 75000/- (Rupees seventy five thousand only) to the present complainant no 1 &2 for not providing medical case papers as per extent rules Page 20 of 21 nishita
(d) The opponents no. 1 to 3 are jointly and severally also ordered to pay Rs. 10,000/- (Rupees ten thousand only) to the present complainant no 1 &2 as cost of the Complaint and shall bear its own cost if any.
(e) Opponents no. 01 to 03 are jointly and severally shall comply with this order within 60 days from the date of this order failing which entire amount will carry the interest @ 9% per annum from date of pronounce of this order till its realization.
(f) Office is directed to forward a free of cost certified copy of this judgment and order to the respective parties.
Pronounced in the open Court today on 18th October, 2022.
[Dr. J.G.Mecwan] Presiding Member Page 21 of 21 nishita