State Consumer Disputes Redressal Commission
Saint Jude'S Hospital vs Wahid Ullah Khan on 7 December, 2023
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UP C-1 Vikrant Khand 1 (Near Shaheed Path), Gomti Nagar Lucknow-226010 First Appeal No. A/170/2016 ( Date of Filing : 27 Jan 2016 ) (Arisen out of Order Dated 19/12/2015 in Case No. C/155/2005 of District Jhansi) 1. Saint Jude's Hospital Jhansi ...........Appellant(s) Versus 1. Wahid Ullah Khan Jhansi ...........Respondent(s) BEFORE: HON'BLE MR. Rajendra Singh PRESIDING MEMBER HON'BLE MR. Vikas Saxena JUDICIAL MEMBER PRESENT: Dated : 07 Dec 2023 Final Order / Judgement Reserved State Consumer Disputes Redressal Commission U.P. Lucknow. Appeal No.170 of 2016 Saint Jude's Hospital through its Manager, Saint's Jude's Hospital, Cipri Bazar, Jhansi. ...Appellant. Versus Waheed Ulla Khan, Advocate, R/o Imaambara, Prem Nagar, Jhansi. ..Respondent. Present:- 1- Hon'ble Sri Rajendra Singh, Presiding Member. 2- Hon'ble Sri Vikas Saxena, Member. Sri Deepak Mehrotra, Advocate for appellant. Sri Alok Sinha, Advocate for respondent. Date: 2.1.2024 JUDGMENT
Per Mr. Rajendra Singh, Member: This Appeal has been filed by the appellant under Section 15 of the Consumer Protection Act, 1986 against the judgment and order dated 19.12.2015 passed by Ld. District Commission, Jhansi in Complaint case no.155 of 2005, Waheed Ulla Khan vs. Saint Jude's Hospital.
The brief facts of the appeal are that, that the impugned judgment and order dated 19.12.2015 is absolutely illegal, unjust and arbitrary, highly unreasonable and lacks application of mind. The impugned judgment and order is based upon absolutely wrong and one-sided interpretations in in favour of the complainant who himself had been very much careless with respect to the health and treatment of his wife. The appellant's hospital does not come under the category of a manufacturer/trader/service provider as defined under the Customer Protection Act. It is a charitable institution which does not charge any money towards the treatment and other medical assistance which is given to the patients at the hospital. The complainant has also admitted that only ₹ 500/- was paid by him to the registration fee which is a token amount and which is not at all a consideration towards the treatment or other medical assistance and hence the case filed by the complainant is not maintainable against the appellant under the Consumer Protection Act.
The judgment and order of the Ld. District Consumer Commission is against law and facts and the ld. Forum has not tried to see that the complainant has not paid any consideration towards the treatment charges and medical assistance. The impugned judgment has been passed without understanding the particular type of controversy involved in this matter and also without appreciating the pleadings and defence presented by the appellant. In fact, the learned Forum acted with a biased mind and hence it has deliberately drawn wrong and arbitrary conclusions from the various pieces of evidence and pleadings et cetera.
It is undisputed that the deceased Reshma Bano again became pregnant within a few months of her earlier delivery. She had delivered a baby in opposite parties' hospital in February 2004 and again she became pregnant within a few months i.e. in August 2004. Hence, the learned Forum should have directed the complainant to produce the details of her first delivery so that it could be confirmed that she was already very weak at the time of her first delivery and her body was not ready for pregnancy immediately after the first delivery. The learned Forum has ignored the most important fact that it was a case of premature delivery. The nine-month of delivery were to be completed in last week of April 2005 while due to acute weakness, Jaundice and anemia Smt. Reshma Bano was physically unable to withhold the pregnancy and hence she had delivered a dead child on 06.03.2005. The premature delivery was a result of acute weakness and persistent anemia and jaundice and after understanding the serious condition, the complainant gave consent for treatment at the opposite parties hospital.
The complainant was fully satisfied with the treatment which was being given by the hospital and hence after the death of child on 06.03.2005, he insisted for further treatment of his wife in the same hospital, if he had any dissatisfaction with respect to the treatment which was given till the delivery, he should not have agreed for the further and continuous treatment of his wife at the same hospital. The complainant made an absolutely false statement that on 06.03.2005 his wife delivered a baby in normal condition. After the lapse of one and half months of the commencement of the instant pregnancy, the weight of the deceased Smt Reshma Bano was only 36 KG. The main reason due to which the complainant's wife died, was her extremely poor health condition. On 07.02.2005 when she approached the appellant, her condition was noted and advice was given to her for test of haemoglobin et cetera. Her weight was 46 KG and she was carrying a pregnancy of 26-28-weeks-old. Certain instructions were also given and she was prescribed medicines for 15 days and was advised to contact again within 15 days for checkup. Thereafter Smt Reshma Bano appeared on 04.03.2005. She was thoroughly examined and was advised certain tests, blood transfusion and admission but she flatly refused for all these. The learned Forum failed to read the prescription dated 04.03.2005 and has only held that no advice for blood transfusion or admission was given to the patient on 04.03.2005 while the prescription clearly contains all these details. It shows that the learned Forum has not applied its mind and has deliberately ignored the correct facts.
Since she did not comply with the advice of the opposite parties, her condition deteriorated and she again approached on 05.03.2005 and then she expressed her willingness for admission. It is undisputed that the complainant's wife Smt. Reshma Bano has been admitted on 05.03.2005 without getting the tests of serum bilirubin et cetera done as was advised on 04.03.2005. After examination it was found that her serum bilirubin was 5.1 and 4.1 which was much more than the prescribed range and it was confirmed that besides anemia she was suffering from Jaundice/ Hepatitis. The complainant was advised to arrange blood of blood group AB negative yet the learned Forum has wrongly held at certain places that the instructions for arranging the AB negative blood was not given by the appellant. The complainant has admitted that he was advised for making arrangement of blood and this fact is apparent from the perusal of the memorandum of complaint as a matter of fact the complainant initially was not ready to make arrangement and provide the blood. Certain relatives of the patient were also present in the hospital and after testing the samples of some relatives it was found that the real sister of deceased Smt. Reshma Bano had the same blood group but she refused to donate the blood. As alleged of this there was some altercation and arguments amongst the relatives of the complainants. After a long discussion the complainant agreed to make arrangment for blood but he arranged it at the very late stage that is at 10.30 p.m. and it's a transfusion was immediately started. The ld. Forum has wrongly held that on 08.12.2004 during the checking the haemoglobin of Smt. Reshma Bano was only 7.5 but no instructions were given to the complainant by the appellant. This is a wrong fact. The instructions were given to Smt. Reshma Bano and her husband by the appellant. The learned Forum has wrongly held that since the appellant had come to know on 08.12.2004 that the haemoglobin was only 7.5, hence it should have asked the complainant to get some bottle of AB negative blood. On 08.12.2004 there was no indication of premature delivery and hence, delivery was not expected in March 2005. There was no occasion to direct the complainant to get some bottle of blood reserved. The nine months of pregnancy were to be completed in the last week of April 2005. The delivery that took place on 06.03.2005 is a premature delivery and hence it was not possible to issue direction in December 2004 to make arrangement or to keep some blood reserved for such kind of delivery.
The learned Forum has wrongly held and interpreted the statement of Dr. Alpana Bhartariya, she has categorically stated in his statement that various medicines and syrups was provided in the prescription of 08.12.2004 for enhancement of blood/haemoglobin level. It is also necessary to point out in this connection that Dr. Alpana Bhartariya was present and produced as witness by the complainant. In fact the learned Forum should have at its own and referred the matter to some independent expert and should have sought his independent advice. Dr. Alpana Bhartariya cannot be deemed to be an independent witness and also an independent expert consultant in this matter. It is however, once again reaffirmed that though Dr. Alpana Bhartariya was not competent to give the expert opinion, yet whatever opinion she had given that has also been wrongly interpreted by the Learned District Consumer Forum. The patient and the attendants have also become quite vigilant these days and they know the importance of haemoglobin level in case of pregnancy. The appellant have not pleaded and have not written any statement that there is no blood bank in the hospital. The appellant is not aware of the fact as to how its counsel has argued before the Learned District Consumer Forum that there was no blood bank in the hospital. The blood group of the deceased Smt. Reshma Bano was AB negative which is one of the most rare blood group and was not available in District Jhansi. It was, however not available in the hospital. If the attendants are informed orally to arrange the blood, it is sufficient information and it is not necessary to write this on the prescription. Though the attendants were directed to arrange the blood on 04.03.2005 yet they acted in a very careless manner and made the agreement of one bottle of blood only as late at 10:30 PM on 06.03.2005 i.e. after a dead baby had already been delivered. The blood provided by the attendants at a very late stage was transfused immediately but by that time her condition had become very poor and she was almost in stage of coma.
It has also been wrongly held by the District Consumer Forum that if the blood group of wife was AB negative, the blood of husband should have been also checked but the appellant/opposite party did not do so. Since it was the second delivery of Smt. Reshma Bano in the same hospital, it was well known that husband's blood group was different and hence there was no necessity of checking the blood group of the husband. The Ante-D injection is also not required in this case and the medical literature referred to in the judgment have been wrongly interpreted by the learned District Consumer Commission. It is quite apparent from a perusal of the memorandum of complaint that the complainant has not claimed any compensation towards the death of the baby. He had claimed compensation only on account of death of his wife. The compensation claimed on account of his wife is ₹ 2 lakhs only. The entire amount has been awarded in most illogical and arbitrary manner. Though the learned Forum has categorically recorded that the complainant was also liable for contributory negligence as he did not maintain the proper interval of at least one year between birth of two child and also her wife was very weak at the time when she became pregnant for second time. But even then it has awarded the entire compensation of ₹ 2 lakhs that has been claimed. Since the complainant was found liable for contributory negligence, the amount awarded should have been reduced to the extent of complainant's liability but the learned Forum has awarded the entire amount of ₹ 2 lakhs which is highly unjustified and illegal.
Hence it is most respectfully prayed that this Hon'ble Commission may kindly be pleased to set aside the impugned judgment and order dated 19.12.2015 delivered by the learned District Consumer Forum, Jhansi in consumer case no 155/2005 and pass any other order or direction which is deemed just and proper in the circumstances of the case in favour of the appellant in the interest of justice.
We heard the learned counsel for the appellant Sri Deepak Mehrotra and counsel for the respondent Sri Alok Sinha. We have perused the pleadings, evidences and documents on record and also went through the judgment passed by the learned District Consumer Commission.
As per admission of the appellant, the deceased Smt. Reshma Bano had delivered a baby in the opposite parties hospital in February 2004 and again she became pregnant within a few months that is in August 2004. It means that the hospital had all the medical records relating to the first pregnancy and delivery of the the deceased Smt Reshma Bano . So the appellant should be cautious during the present delivery knowing all the facts of RS factor of the patient. It is used as to say that she should have not become pregnant within such a short span after the first delivery. Is there any act or rule regarding this? So first we have to see what is Rh for and what precautions should be taken in such cases.
Rh Incompatibility Effects Symptoms Risk factors Diagnosis Treatments Complications Prevention What is Rh incompatibility?
When a woman and her unborn baby carry different Rhesus (Rh) protein factors, their condition is called Rh incompatibility. It occurs when a woman is Rh-negative and her baby is Rh-positive. The Rh factor is a specific protein found on the surface of your red blood cells.
Like your blood type, you inherit your Rh factor type from your parents. Most people are Rh-positive, but a small percentage of people are Rh-negative. This means they lack the Rh protein.
How does Rh factor affect pregnancy?
A positive or negative symbol after your blood type indicates your Rh factor. For example, "blood type: AB+" might be written on your medical record.
Your Rh factor doesn't directly affect your health. However, Rh factor becomes important during pregnancy. If a woman is Rh-negative and her baby is Rh-positive, then the woman's body will approach the Rh-positive protein as a foreign object, if her immune system is exposed to it.
This means that if blood cells from your baby cross your bloodstream, which can happen during pregnancy, labor, and delivery, your immune system will make antibodies against your baby's red blood cells.
Antibodies are parts of your body's immune system. They destroy foreign substances.
If you have an Rh-negative blood type, you're considered "sensitized" to positive blood types once your body has made these antibodies.
This means that your body might send these antibodies across the placenta to attack your baby's red blood cells. Your placenta is the organ that connects you and your baby.
What are the symptoms of Rh incompatibility?
Rh incompatibility symptoms in your unborn baby can range from mild to life-threatening. When your antibodies attack your baby's red blood cells, hemolytic disease can occur. This means your baby's red blood cells are destroyed.
When your baby's healthy red blood cells are destroyed, bilirubin will build up in their bloodstream.
Bilirubin is a chemical that's created from the breakdown of red blood cells. Too much bilirubin is a sign that the liver, which is responsible for processing old blood cells, is having trouble.
Your baby may have one or more of the following symptoms if their bilirubin levels are high after birth:
jaundice, a yellowing of the skin and whites of the eyes lethargy low muscle tone These symptoms will subside after completing treatment for the Rh incompatibility.
Who is at risk for Rh incompatibility?
Any woman who is Rh-negative and is having a child with someone who is Rh-positive or with an unknown Rh status is at risk for Rh incompatibility. However, given the low percentage of people with rH-negative blood types, this doesn't happen often.
According to the Stanford Blood Center, the percentage of blood types breaks down roughly as follows:
O+ 37.4% O-
6.6% A+ 35.7% A-
6.3% B+ 8.5% B-
1.5% AB+ 3.4% AB-
0.6% It takes time for the body to develop antibodies, so firstborn children usually aren't affected. However, if a mother became sensitized because of a miscarriage or abortion, her first live birth may be affected by Rh incompatibility.
A mother can be exposed to Rh-positive blood during certain prenatal tests or procedures. One example is amniocentesis. In this test, your doctor uses a needle to remove some of the fluid from the sac around your baby. This fluid can be tested for problems in the developing fetus.
How is Rh incompatibility diagnosed?
A blood test to determine your Rh status will likely be done at your first prenatal visit with your doctor.
If you're Rh-negative, your partner may also be tested. If your partner is also Rh-negative, you don't have anything to worry about. If your partner is Rh-positive and you're Rh-negative, your doctor will look for the following signs of Rh incompatibility.
A positive indirect Coombs test is a sign of Rh incompatibility. This test uses a blood sample to look for the presence of cell-destroying antibodies within the plasma of your blood.
Higher-than-normal levels of bilirubin in your infant's blood is a sign of Rh incompatibility. In a full-term baby who is less than 24 hours old, the levels of bilirubin should be less than 6.0 milligrams per deciliter.
Signs of red blood cell destruction in your infant's blood may indicate Rh incompatibility. This can be determined by the shape and structure of the red blood cells when examined under a microscope.
Your doctor can test your baby's blood for the presence of maternal antibodies that are breaking down the red blood cells.
How is Rh incompatibility treated?
Treatment focuses on preventing the effects of the incompatibility. In mild cases, the baby can be treated after birth with:
a series of blood transfusions hydrating fluids electrolytes, which are elements that regulate metabolism phototherapy Phototherapy involves keeping your baby near fluorescent lights to help reduce the bilirubin in their blood.
These procedures may be repeated until the Rh-negative antibodies and excess bilirubin have been removed from your baby's blood. Whether it must be repeated depends on the severity of your baby's condition.
If you're pregnant and your doctor determines that you've already developed antibodies against your baby, your pregnancy will be closely monitored.
You can prevent the effects of Rh incompatibility by getting an injection of Rh immune globulins (RhIg) during your first trimester, during a miscarriage, or while having any bleeding during your pregnancy.
This blood product contains antibodies to the Rh factor. If your baby has Rh-positive blood, you should get a second injection a few days after you give birth.
In very rare and serious cases, a series of special blood transfusions can be performed while your baby is in your uterus or after delivery.
However, the success of RhIg shots has made this treatment only necessary in less than 1 percent of cases of Rh incompatibility in the United States.
The general outlook is good in mild cases of Rh incompatibility.
Are there any complications?
Severe cases, in which the effects of Rh incompatibility aren't prevented, can result in severe complications. These complications may include:
brain damage to the baby, which is known as kernicterus fluid buildup or swelling in the baby trouble with mental function, movement, hearing, and speech seizures anemia heart failure Death of the baby can also occur. Rh incompatibility is rarely a problem in countries with good medical care, however.
Can Rh incompatibility be prevented?
This condition is preventable. If you think you may be pregnant and have an Rh-negative blood type, you should talk with your doctor to determine the best plan.
If the father of your child is Rh-positive or his blood type is unknown, receiving preventive treatment with immune globulins will prevent serious effects.
Rhesus disease can largely be prevented by having an injection of a medication called anti-D immunoglobulin.
This can help to avoid a process known as sensitisation, which is when a woman with RhD negative blood is exposed to RhD positive blood and develops an immune response to it.
Blood is known as RhD positive when it has a molecule called the RhD antigen on the surface of the red blood cells.
Read more about the causes of rhesus disease.
Anti-D immunoglobulin The anti-D immunoglobulin neutralises any RhD positive antigens that may have entered the mother's blood during pregnancy. If the antigens have been neutralised, the mother's blood won't produce antibodies.
You'll be offered anti-D immunoglobulin if it's thought there's a risk that RhD antigens from your baby have entered your blood - for example, if you experience any bleeding, if you have an invasive procedure (such as amniocentesis), or if you experience any abdominal injury.
Anti-D immunoglobulin is also administered routinely during the third trimester of your pregnancy if your blood type is RhD negative. This is because it's likely that small amounts of blood from your baby will pass into your blood during this time.
This routine administration of anti-D immunoglobulin is called routine antenatal anti-D prophylaxis, or RAADP (prophylaxis means a step taken to prevent something from happening).
Routine antenatal anti-D prophylaxis (RAADP) The 2 ways you can receive RAADP are a:
2-dose treatment: where you receive 2 injections; 1 during the 28th week of your pregnancy and the other during the 34th week 1-dose treatment: where you receive an injection of immunoglobulin at some point during weeks 28 to 30 of your pregnancy There doesn't seem to be any difference in the effectiveness between the 1-dose or 2-dose treatments. Your local integrated care board (ICB) may prefer to use a 1-dose treatment, because it can be more efficient in terms of resources and time.
When will RAADP be given?
RAADP is recommended for all pregnant RhD negative women who haven't been sensitised to the RhD antigen, even if you previously had an injection of anti-D immunoglobulin.
As RAADP doesn't offer lifelong protection against rhesus disease, it will be offered every time you become pregnant if you meet these criteria.
RAADP won't work if you've already been sensitised. In these cases, you'll be closely monitored so treatment can begin as soon as possible if problems develop.
Anti-D immunoglobulin after birth After giving birth, a sample of your baby's blood will be taken from the umbilical cord. If you're RhD negative and your baby is RhD positive, and you haven't already been sensitised, you'll be offered an injection of anti-D immunoglobulin within 72 hours of giving birth.
The injection will destroy any RhD positive blood cells that may have crossed over into your bloodstream during the delivery. This means your blood won't have a chance to produce antibodies and will significantly decrease the risk of your next baby having rhesus disease.
Complications from anti-D immunoglobulin Some women are known to develop a slight short-term allergic reaction to anti-D immunoglobulin, which can include a rash or flu-like symptoms.
Although the anti-D immunoglobulin, which is made from donor plasma, will be carefully screened, there's a very small risk that an infection could be transferred through the injection.
However, the evidence in support of RAADP shows that the benefits of preventing sensitisation far outweigh these small risks.
Anti-D immunoglobulin is also administered routinely during the third trimester of your pregnancy if your blood type is RhD negative. This is because it's likely that small amounts of blood from your baby will pass into your blood during this time. You will be offered an anti-D injection at 28 and 34 weeks of pregnancy if your blood is rhesus negative. The anti-D injection may also be recommended if there is concern about a sensitising event (see above).
How long does anti-D injection stay in your system?
Although the half-life of passive anti-D from RhIG is approximately 3 weeks, it may be detectable by serologic tests for approximately 8 weeks by the indirect antiglobulin test (IAT) and up to 12 weeks or more by continuous flow analyzers used to quantify anti-D. Levels of passive anti-D will decrease over time.
What happens if anti-D is not given?
Whilst rare, if it does happen it can cause symptoms in both unborn and newborn babies, ranging from mild jaundice to, in severe cases, miscarriage or stillbirth. Anti-D helps to avoid the process of sensitisation, meaning that your blood won't produce antibodies and Rhesus disease can be prevented.
Do I need RhoGAM for my second pregnancy?
The timing of your RhoGAM shot stays the same no matter what pregnancy you're in. You should receive your shot around your 28th week of pregnancy or sooner if you have any procedures or bleeding. If you have a negative blood type, you need a RhoGAM shot during every pregnancy.
Approximately 85% of the Australian population have a Rhesus (Rh-D) positive blood group and 15% a (Rh-D) negative group.
Like all blood groups the Rh factors is inherited. If an Rh-D negative woman falls pregnant to an Rh-D positive man there is a 1 in 4 chance that the baby will be Rh-D positive.
During the pregnancy and birthing process, there is a risk that some of the baby's blood cells will get into the mother's blood stream and she will form antibodies (Isoimmunisation) against the baby's blood. If a mother who has developed the antibodies has another Rh positive baby, her antibodies will cross the placenta and may damage the baby's red blood cells. Untreated babies may be anaemic, have a risk of brain damage or even die before birth. Doctors call all of these problems 'haemolytic disease of the newborn' or 'HDN'.
The use of 'anti-D' has greatly reduced the incidence of HDN by reducing the chances of a woman forming antibodies from about 1.5% to 0.2%.
If the mother is given an injection of Anti-D within 72 hours of delivery, miscarriage or amniocentesis then the baby's cells which have entered the bloodstream may be neutralised and thus harmful antibodies will not be produced.
It is routine practice therefore to offer all Rh-D negative mothers Anti-D immunoglobulin injection during pregnancy (2 doses, at 28 and 34 weeks gestation), after delivery (if the baby is Rh-D positive).
You may need to have the injection earlier if you:
Have any vaginal bleeding during your pregnancy Have a miscarriage Have an abortion or terminate your pregnancy Have a medical procedure such as an amniocentesis In some cases a blood sample may be taken prior to receiving Anti-D Anti-D is given as an injection, usually into a muscle in your arm or leg. For some people with bleeding problems, the injection may need to be given under the skin (subcutaneously).
You may feel tender or stiff where the injection was given. This will pass in a few hours Occasionally a temperature or hives may occur but these are very rare and are easily treated.
There is no evidence that being given an Anti-D injection while you are pregnant will harm your baby. If, however, you decide against this, you will still be offered the injection after the birth if your baby is found to be Rh-D positive. You may choose not to have the anti-D injection if you are certain that the father of your baby is Rh-D negative.
Men are not tested routinely to find out their blood group, but some people might know their Rh-D status.
You can breastfeed after you have been given an Anti-D injection.
Anti-D is made from blood plasma (the fluid part of the blood). The blood was donated to the Australian Red Cross Blood Service by volunteer donors. To make sure infectious diseases cannot be transmitted by Anti-D injections, every blood donation used to make Anti-D is tested for blood diseases like hepatitis and HIV. To ensure the safety of the blood, the Red Cross also has very strict controls on blood donors. No product made from human blood plasma can be guaranteed 100% free of infectious diseases. However, Anti-D has been used in Australia for more than 30 years, and no one has ever reported being infected from an Anti-D injection.
That the patient should have been given in case there is need of giving this injection to the patient. If the doctor thinks that there is no need of giving this injection during the second pregnancy, he will be liable for any miscarriage or death of the child. Precaution should always be taken. The learned District consumer commission can that has found that on account of paper number 29/1, deceased Smt Reshma Bano was examined in the appellants hospital on 18 September 2004 and she was found pregnant. Again she went to the appellants hospital on 08.12.2004 for her checkup and she was advised to get haemoglobin and RBS, HIV test on the same day. The tests were performed on the same day and she was found haemoglobin 7.5 and blood group AB negative, HIV negative and HI negative. Again she went to the appellants hospital on 07.02.2005 and on that day she had 26 - 28 weeks pregnancy. She again visited the appellants hospital on 04.03.2005 and on that date her haemoglobin level was 8.9 and she was for the first time advised for blood transfusion. She also visited the appellants hospital on 05.03.2005 and on that date she was admitted in the hospital. So it is not to say that she went to the hospital for the first time on 03.03.2005. Now it was the duty of the appellants hospital that when she first visited the hospital on18 September 2004, it is the duty of the appellants hospital knows about the first pregnancy and who had all the medical records of the first pregnancy with him, to treat the patient with utmost care and caution. But the appellant took it casually and the not take steps for prevention of any untoward event knowing that that she has blood group of AB negative.
In the hospital for prescription there is no endorsement regarding taking steps for increasing haemoglobin level or any advice given to the deceased's husband or any other family members for blood transfusion. On the prescription dated 04.03.2005, only medicines were prescribed. When the appellant came to know about the level of haemoglobin on 08.12.2004, and in spite of that the appellant did not take any precautionary measure or did not advice for blood transfusion or did not admit her in his hospital for blood transfusion. Further her husband's blood group has not been examined. If there was no need to check the blood group of the husband, his blood group should have been entered in the prescription but it has not been done.
From the complainant's side Dr Alpana Barturia was produced before the Learned District Consumer Commission as a witness who is senior consultant, Women's Hospital, Jhansi . She deposed that in the prescription, the level of haemoglobin has been mentioned as 7.5 and blood group AB negative but there is no direction regarding blood transfusion. Also there is no direction for the test of serum creatinine or serum bilirubin. On the prescription of 07.03.2005 there is endorsement of Colar meaning Jaundice. If there is deficiency of blood in the patient, she should have been given blood and should have been taken proper precaution. She further deposed that if the blood group of the mother's AB negative and the blood group of the child is positive, the child may suffer and in such cases the blood is preserved for emergency. In this case no such steps have been taken by the appellant hospital. No prescription for giving Ante-D injection. These things show carelessness and negligence on the part of the appellant.
Now let us see the oath taken be a doctor before entering the nobel profession of the Medical World. As per guidelines of MCI, Every member should get it framed in his or her office it should never be violated in its letter and spirit.
"I solemnly pledge myself to consecrate my life to service of humanity.
Even under threat, I will not use my medical knowledge contrary to the laws of Humanity.
I will maintain the utmost respect for human life from the time of conception.
I will not permit considerations of religion, nationality, race, party politics or social standing to intervene between my duty and my patient.
I will practice my profession with conscience and dignity.
The health of my patient will be my first consideration.
I will respect the secrets which are confined in me.
I will give to my teachers the respect and gratitude which is their due.
I will maintain by all means in my power, the honour and noble traditions of medical profession.
I will treat my colleagues with all respect and dignity.
I shall abide by the code of medical ethics as enunciated in the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations 2002.
I make these promises solemnly, freely and upon my honour."
The complexity of the human body and the uncertainty involved in the medical procedure are of such great magnitude that it is impossible for a Doctor to guarantee a successful result; and the only assurance that he can give, or can be understood to have given by implication is that he is possessed of requisite skill in that branch of profession which he is practising and while undertaking the performance of the task entrusted to him, he would be exercising his skills with reasonable competence. An ordinary physician or surgeon is not expected to be either a clodhopper or feckless practitioner of profession, as much as, he is not expected to be a paragon, combining qualities of polymath or prophet as in the realm of diagnosis and treatment, there is ample scope for genuine difference of opinion; and a Doctor cannot be treated as negligent merely because his conclusion differs from that of other persons in the profession, or because he has displayed less skill or knowledge than others would have shown. The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of, if acting with ordinary care. Furthermore, a golden principle of law has been laid down by the Hon'ble Apex Court in Jacob Mathew Vs. State of Punjab, (AIR 2005 SC 3180) that no sensible professional would intentionally commit an act or omission which would result in loss or injury to the patient as the professional reputation of the person is at stake. A single failure may cost him dear in his career. Even in civil jurisdiction, the rule of res ipsa loquitor is not an universal application and has to be applied with extreme care and caution to the cases of professional negligence and in particular that of the doctors, else it would be counter productive. Simply because a patient has not favourably responded to a treatment given by a physician or a surgery has failed, the doctor cannot be held liable per-se by applying the doctrine of res ipsa loquitor. Yet, another golden principle of law has been laid down by the Hon'ble Apex Court in Indian Medical Association Vs. V.P. Santha's III (1995) CPJ 1 (SC) at para 37 that "it is no doubt true that sometimes complicated questions requiring recording of evidence of experts may arise in a complaint about deficiency in service based on the ground of negligence in rendering medical services by a medical practitioner; but this would not be so in all complaints about deficiency rendering services by a medical practitioner. There may be cases which do not raise such complicated questions and the deficiency in service may be due to obvious faults which can be easily established such as removal of the wrong limb or the performance of an operation on the wrong patient or giving injection of a drug to which the patient is allergic without looking into the out patient card containing the warning or use of wrong gas during the course of an anaesthetic or leaving inside the patient swabs or other items of operating equipment after surgery. Furthermore, it has been observed in Malay Kumar Ganguli's case (AIR 2010 SC 1162) that" charge of professional negligence on a medical person is a serious one as it affects his professional statusand reputation and as such, the burden of proof would be more onerous. A doctor cannot be held negligent only because something has gone wrong. He also cannot be held liable for mischance or misadventure or for an error in judgment in making a choice when two options are available. The mistake in diagnosis is not necessarily a negligent diagnosis." In the instant matter, thus a simple test, in the light of aforesaid observations, needs to be conducted in order to ascertain whether the Doctor is guilty of any tortious act of negligence/battery amounting to deficiency in conducting a surgery in the delivery of child and not properly attending the patient, the complainant and consequently, liable to pay damages for leaving cotton mass in the abdomen / stomach due to failure in surgery and deteriorating condition of the patient.
Now, it is required to be seen whether an expert report is necessary in each and every case relating to medical negligence or not ? It has been observed by the Hon'ble Apex Court in Indian Medical Association Vs. V.P. Santha III (1995) CPJ 1 (SC) at para 37 that "it is no doubt true that sometimes complicated questions requiring recording of evidence of experts may arise in a complaint about deficiency in service based on the ground of negligence in rendering medical services by a medical practitioner; but this would not be so in all complaints about deficiency rendering services by a medical practitioner. There may be cases which do not raise such complicated questions and the deficiency in service may be due to obvious faults which can be easily established such as removal of the wrong limb or the performance of an operation on the wrong patient or giving injection of a drug to which the patient is allergic without looking into the out patient card containing the warning or use of wrong gas during the course of an anaesthetic or leaving inside the patient swabs or other items of operating equipment after surgery. Furthermore, in B. Krishna Rao Vs. Nikhil Super Speciality Hospital 2010 (V) SCC513 at para 40 the Hon'ble Apex Court was pleased to hold that it is not necessary to have opinion of the expert in each and every case of medical negligence. The Hon'ble Apex Court was pleased to further hold in Nizam Institute of Medical Sciences Vs. Prashant S. Dhananka and others 2009 (VI) SCC 1 that "in a case of medical negligence, once initial burden has been discharged by the complainant by making of a case of negligence on the part of the hospital or the doctor concerned, the owner then shifts on 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".
A doctrine or rule of evidence in tort law that permits an inference or presumption that a defendant was negligent in an accident injuring the plaintiff on the basis of circumstantial evidence if the accident was of a kind that does not ordinarily occur in the absence of negligencea plaintiff who establishes the elements of res ipsa loquitur can withstand a motion for summary judgment and reach the jury without direct proof of negligence-- Cox v. May Dept. Store Co., 903 P.2d 1119 (1995).
In Byrne vs Boadle, this maxim was used for the first time where the complainant was injured by a barrel that dropped from the window of the defendant. In the abovementioned case, Pollock, C. B., said "here are many incidents from which no presumption of negligence can arise, but this is not true in every case. It is the duty of persons who keep barrels in a warehouse to take care that they do not roll out and I think that such a case will, beyond all doubt, afford prima facie proof of negligence."
This doctrine intends to help direct the court proceedings to a conclusion, especially if it is established through the implication of this doctrine's rule that the injury caused to the claimant would not have occurred or taken place if the defendant wasn't negligent. This also gives enough cause and evidence to hold the defendant liable for his negligent actions.
DOCTRINE OF RES IPSA LOQUITAR The thing speaks for itselfis the gist of the maxim Res Ipsa Loquitur Maxim. What are the essentials of this maxim.
The injury caused to the plaintiff shall be a result of an act of negligence.
There is a lack of evidence, or the evidence presented before the court is insufficient to establish the possibilities of the fault of the plaintiff or third party.
The defendant owes a duty of care towards the plaintiff, which he has breached.
There is a significant degree of injury caused to the plaintiff.
Applicability of Doctrine of Res Ipsa Loquitur.
The maxim of res ipsa loquitur came into force to benefit the plaintiff as he can use circumstantial evidence to establish negligence.
Consequently, it shifts the burden of proof on the defendant, logic being, where there is an event of unexplained cause, usually, the one that does not occur without the defendant's negligence in controlling the action which has caused the injury to the claimant or destroyed his goods.
In this scenario, the court shall presume negligence on the part of the defendant in such a case unless it includes an appropriate explanation compatible with his taking reasonable care.
In Achutrao Haribhau Khodwa and Others vs. State of Maharashtra and Others, it was considered that the maxim should not be applied in the case of general incidences of neglect and shall only be reflected when there is a significant degree of injury caused.
Section 106 of the Indian Evidence Act Section 106 of the Act provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
Res ipsa loquitur is a Latin phrase that means "the thing speaks for itself." In personal injury law, the concept of res ipsa loquitur (or just "res ipsa" for short) operates as an evidentiary rule that allows plaintiffs to establish a rebuttable presumption of negligence on the part of the defendant through the use of circumstantial evidence.
This means that while plaintiffs typically have to prove that the defendant acted with a negligent state of mind, through res ipsa loquitur, if the plaintiff puts forth certain circumstantial facts, it becomes the defendant's burden to prove he or she was not negligent.
Res Ipsa Loquitur and Evidence Law Accidents happen all the time, and the mere fact that an accident has occurred doesn't necessarily mean that someone's negligence caused it. In order to prove negligence in a personal injury lawsuit, a plaintiff must present evidence to demonstrate that the defendant's negligence resulted in the plaintiff's injury. Sometimes, direct evidence of the defendant's negligence doesn't exist, but plaintiffs can still use circumstantial evidence in order to establish negligence.
Circumstantial evidence consists of facts that point to negligence as a logical conclusion rather than demonstrating it outright. This allows judges and juries to infer negligence based on the totality of the circumstances and the shared knowledge that arises out of human experience. Res ipsa is one type of circumstantial evidence that allows a reasonable fact finder to determine that the defendant's negligence caused an unusual event that subsequently caused injury to the plaintiff.
This doctrine arose out of a case where the plaintiff suffered injuries from a falling barrel of flour while walking by a warehouse. At the trial, the plaintiff's attorney argued that the facts spoke for themselves and demonstrated the warehouse's negligence since no other explanation could account for the cause of the plaintiff's injuries.
As it has developed since then, res ipsa allows judges and juries to apply common sense to a situation in order to determine whether or not the defendant acted negligently.
Since the laws of personal injury and evidence are determined at the state level, the law regarding res ipsa loquitur varies slightly between states. That said, a general consensus has emerged, and most states follow one basic formulation of res ipsa.
Under this model for res ipsa, there are three requirements that the plaintiff must meet before a jury can infer that the defendant's negligence caused the harm in question:
The event doesn't normally occur unless someone has acted negligently;
The evidence rules out the possibility that the actions of the plaintiff or a third party caused the injury; and The type of negligence in question falls with the scope of the defendant's duty to the plaintiff.
As mentioned above, not all accidents occur because of someone else's negligence. Some accidents, on the other hand, almost never occur unless someone has acted negligently.
Going back to the old case of the falling flour-barrel, it's a piece of shared human knowledge that things don't generally fall out of warehouse windows unless someone hasn't taken care to block the window or hasn't ensured that items on the warehouse floor are properly stored. When something does fall out of a warehouse window, the law will assume that it happened because someone was negligent.The second component of a res ipsa case hinges on whether the defendant carries sole responsibility for the injury. If the plaintiff can't prove by a preponderance of the evidence that the defendant's negligence cause the injury, then they will not be able to recover under res ipsa.
States sometimes examine whether the defendant had exclusive control over the specific instrumentality that caused the accident in order to determine if the defendant's negligence caused the injury. For example, if a surgeon leaves a sponge inside the body of a patient, a jury can infer that the surgeon's negligence caused the injury since he had exclusive control over the sponges during the operation.
In addition to the first two elements, the defendant must also owe a duty of care to protect the plaintiff from the type of injury at issue in the suit. If the defendant does not have such a duty, or if the type of injury doesn't fall within the scope of that duty, then there is no liability.
For example, in many states, landowners don't owe trespassers any duty to protect them against certain types of dangers on their property. Thus, even if a trespasser suffers an injury that was caused by the defendant's action or inaction and that wouldn't normally occur in the absence of negligence, res ipsa loquitur won't establish negligence since the landowner never had any responsibility to prevent injury to the trespasser in the first place.
Res ipsa only allows plaintiffs to establish the inference of the defendant's negligence, not to prove the negligence completely. Defendants can still rebut the presumption of negligence that res ipsa creates by refuting one of the elements listed above.
For example, the defendant could prove by a preponderance of the evidence that the injury could occur even if reasonable care took place to prevent it. An earthquake could shake an item loose and it could fall out of the warehouse window, for instance.
A defendant could also demonstrate that the plaintiff's own negligence contributed to the injury. To go back to the flour-barrel example, if the defendant shows that the plaintiff was standing in an area marked as dangerous it could rebut the presumption of negligence created by res ipsa.
Finally, the defendant could establish that he did not owe the plaintiff a duty of care under the law, or that the injury did not fall within the scope of the duty owed. For example, if the law only imposes a limited duty on the defendant not to behave recklessly, then res ipsa will not help the plaintiff by creating an inference of negligence since a negligent action would not violate the duty owed to the plaintiff.
According to the Blacks Law Dictionary the maxim is defined as the doctrine providing that, in some circumstances, the mere fact of accidents occurrence raises an inference of negligence so as to establish a prima facie (at first sight) case. It is a symbol for that rule that the fact of the occurrence of an injury taken with the surrounding circumstances may permit an inference or recipes omission of negligence, or make out a plaintiff's prima facie case and present a question of fact for defendant to meet with and explanation. It is merely a short way of saying that the circumstances attendant on the accident are of such a nature to justify a jury in light of common sense and past experience in inferring that the accident was probably the result of the defendant's negligence, in the absence of explanation or other evidence which the jury believes.
Its use in clinical negligence gained some traction before Bolam and Bolitho. Mahon v Osborne [1939] 1 All ER 535, is an early example of the application of res ipsa loquitur in a case where a surgical swab had been left inside a patient's body.
In Clarke v Worboys (1952) Times, 18 March, CA, a patient noticed burns on her buttock shortly after surgical excision of a breast tumour. The surgery involved cauterisation. The Court of Appeal held that this was a case where res ipsa loquitur applied. The outcome was not one that would ordinarily occur in the absence of negligence, and the surgical team were unable to explain how the injury was caused.
In Cassidy v Ministry of Health [1951] 2 KB 343, Denning LJ succinctly summarised the maxim's application to clinical negligence cases: "I went into hospital to be cured of two stiff fingers. I have come out with four stiff fingers and my hand is useless. That should not happen if due care had been used. Explain it if you can."
Ng Chun Pui Vs Lee Chuen Tat, the first defendant was driving a coach owned by the second defendant westwards in the outer lane of dual carriageway in Hong Kong. Suddenly the course across the central reservation and collided with a public bus travelling in the inner lane of the other carriageway, killing one passenger in the bus and injuring the driver and three others on the bus. The plaintiff could not prove that the defendants were negligent and had caused the accident. They however proceeded on the basis of Res Ipsa Loquitur and shifted the onus on the defendants to prove that they were not negligent. However, they failed to do so. And the judicial committee of the Privy Council held the defendants liable for the plaintiffs injuries. { MarkLuney and Ken Opliphant, Tort Law Text And Materials (Oxford University Press, New York, 2000) pp 173-175 } In A.S. Mittal & Anr Vs State Of UP &Ors , AIR 1979 SC 1570 , the defendants had organised an eye camp at Khurja along with the Lions Club. 88 low risk cataract operations were undertaken during the period of the camp. It was however, disastrous as many of those who had been operated upon lost their eyesight due to post medical treatment. Proceedings against the government initiated for negligence of the doctors. Damages worth Rs.12,500/- were paid as interim belief to each of the aggrieved. The decision was on the basis of Res Ipsa Loquitur as the injury would not ave occurred had the doctors not been negligent in not having followed up with post-operation treatment. Res Ipsa Loquitur can be applied in matters where are the procedures have not been followed and is not just limited to the commission of an act.
We can define 'Medical negligence' as the improper or unskilled treatment of a patient by a medical practitioner. This includes negligence in taking care from a nurse, physician, surgeon, pharmacist, or any other medical practitioner. Medical negligenceleads to 'Medical malpractices' where the victims suffer some sort of injury from the treatment given by a doctor or any other medical practitioner or health care professional.
Medical negligence can occur in different ways. Generally, it occurs when a medical professional deviates from the standard of care that is required.
So, we can say that any kind of deviation from the accepted standards of medication and care is considered to be medical negligence and if it causes injury to a patient then the doctor who operated on him, other staff and/or hospital may be held liable for this.
Some of the common categories of medical negligence are as follows:
Wrong diagnosis - When someone goes to a hospital, clinic or medical room, etc. the first step after admittance is the diagnosis. Diagnosing symptoms correctly is critical and important to provide medical care to any patient. However, if a patient is not treated properly due to any mistake in diagnosis, the doctor can be made liable for any further injury or damages caused as a result of the wrong diagnosis.
Delay in diagnosis - A delayed diagnosis is treated as medical negligence if another doctor would have reasonably diagnosed the same condition in a timely fashion. A delay in diagnosis can cause undue injury to the patient if the illness or injury is left to worsen with time rather than being treated. Obviously, any delay in the identification and treatment of an injury can reduce the chance of recovery for the patient.
Error in surgery - Surgical operations require an enormous level of skill and it should be done with due care and caution because even the slightest mistakes can have profound effects on the patient. The wrong-site surgery, lacerations of any internal organ, severe blood loss, or a foreign object being left in the body of the patients, all this comes under Surgical error.
Unnecessary surgery - Unnecessary surgery is usually associated with the misdiagnosis of patient symptoms or a medical decision without proper consideration of other options or risks. Alternatively, sometimes surgery is chosen over conventional treatments for their expediency and ease compared to other alternatives.
Errors in the administration of anesthesia - Anesthesia is a risky part of any major medical operation and requires a specialist (anesthesiologist) to administer and monitor its effect on the patient. Prior to any medical procedure requiring anesthesia, the anesthesiologist has to review the patient's condition, history, medications, etc. to determine the most suitable of all the medicine to use. Anesthesia malpractice can happen even during the pre-operation medical review or during the procedure itself.
Childbirth and labor malpractice - Childbirth is a difficult event for a woman and it becomes worse if not handled properly by the doctors and nurses. There are many instances of medical negligence during childbirth including the mishandling of a difficult birth, complications with induced labor, misdiagnosis of a newborn medical condition, etc. Long-Term negligent treatment - Medical negligence can also occur in subtle ways over the course of a long treatment period. Usually, the negligence can take the shape of a failure to follow up with treatment, or a doctor's failure to monitor the effects of the treatment properly.
A standard of care specifies the appropriate treatment and medication procedure as per the requirements that should be taken into account by a doctor while providing the treatment to his patients. The care should not be of the highest degree nor the lowest.Here, the degree means the level of care an ordinary health care professional, with the same training and experience, would render in similar circumstances in the same community. This is the critical question in medical malpractice cases and if the answer is "no," and you suffered injury as a result of the poor treatment, you may file a suit for medical malpractice.
In the case of Dr. Laxman Balkrishna Joshi Vs. Dr. TrimbakBapu Godbole and Anr.[ 1969 AIR 128], the Supreme Court held that a doctor has certain aforesaid duties and a breach of any of those duties can make him liable for medical negligence. A doctor is required to exercise a reasonable degree of care that is set for this profession.
Dr. Kunal Saha vs Dr. Sukumar Mukherjee on 21 October, 2011 ( NC) original petition number 240 OF 1999 is one of the most important case regarding medical negligence. The brief facts of the case are-
Toxic Epidermal Necrolysis ( TEN ) is a rare and deadly disease. It is an extoliative dermatological disorder of unknown cause. A patient with TEN loses epidermis in sheet-like fashion leaving extensive areas or denuded dermis that must be treated like a larze, superficial, partial-thickness burn wound. The incidence of TEN has been reported at 1 to 1.3 per million per year. The female-male ratio is 3:2. TEN accounts for nearly 1% of drug reactions that require hospitalization. TEN has a mortality rate of 25 to 70%.
Smt. Anuradha Saha (in short Anuradha), aged about 36 years wife of Dr. Kunal Saha (complainant) became the unfortunate victim of TEN when she alongwith the complainant was in India for a holiday during April-May 1998. She and the complainant although of Indian original were settled in the United States of America. The complainant is a doctor by profession and was engaged in research on HIV / AIDS for the past fifteen years. Anuradha after acquiring her Graduation and Masters Degree was pursuing a Ph.D. programme in a university of U.S.A. She was a Child Psychologist by profession. Anuradha showed certain symptoms of rashes over her body and received treatment at the hands of Opposite Parties and some other doctors as outdoor patient uptil 10.05.1998 and she was admitted in Advanced Medicare and Research Institute Limited, Calcutta (for short, AMRI), on 11.05.1998, where she was treated by the above-named Opposite Parties and other doctors uptil 16.05.1998. As there was no improvement in her condition, she was shifted to Breach Candy Hospital, Mumbai, on 17.05.1998 by an air ambulance. She was treated in Breach Candy Hospital from 17.05.1998 evening till she breathed her last on 28.05.1998.
Our Complainant as husband of Anuradha felt that the doctors who treated Anuradha and the hospitals where she was treated were grossly negligent in her treatment and her death was occasioned due to gross negligence of the treating doctors and hospitals. Complainant, accordingly, got issued a legal notice to as many as 26 persons i.e. various doctors who treated Anuradha between end of April to the date of her death alleging negligence and deficiency in service on their part and claiming a total compensation exceeding Rs.55 crores from them. Complainant, thereafter filed the present complaint on 09.03.1999 before this Commission claiming a total compensation of Rs. Rs.77,07,45,000/- ( Seventy Seven Crores Seven Lakhs Fourty Five Thousand only). Later he also filed another complaint no. 179 of 2000 in this Commission against Breach Candy Hospital, its doctors and functionaries claiming a further compensation of Rs.25.30 crore ( though the said complaint was later on withdrawn), thereby making claim of compensation exceeding Rs.102 crores, perhaps the highest ever claimed by any complainant for medical negligence before any consumer fora established under the provisions of Consumer Protection Act, 1986 ( in short, the Act). These are some of the facts which make the present case extra ordinary.
The present complaint was filed by the complainant against the above-named opposite parties, namely, Dr. Sukumar Mukherjee, Dr. B. Haldar (Baidyanath Halder), Advanced Medicare and Research Institute Limited ( in short the AMRI Hospital ) and Dr. Balram Prasad and Dr.Abani Roy Chowdhury (physician) and Dr.KaushikNandy (plastic surgeon), the Directors of the AMRI Hospital and others claiming a total compensation of Rs. Rs.77,07,45,000/- under different heads alleging various acts of commission and omission on the part of the doctors and hospital amounting to negligence and deficiency in service. Complainant through his brother-in-law Malay Kumar Ganguly also filed criminal complaint against some of the doctors and the hospital under section 304A IPC.
The complaint was resisted by the doctors and the hospital on a variety of grounds thereby denying any medical negligence or deficiency in service on their part. Parties led voluminous documentary and oral evidence and testimonies of some of the witness were even recorded through video conferencing through a Local Commissioner. After a protracted trial and hearing and on consideration of the evidence and material so produced on record and taking note of the legal position governing the question of medical negligence, this Commission ( by a three Member Bench presided over by the then President) dismissed the complaint by an order dated 01.06.2006 holding as under:
In the result, we reiterate that Doctors or Surgeons do not undertake that they will positively cure a patient. There may be occasions beyond the control of the medical practitioner to cure the patients. From the record, it would be difficult to arrive at the conclusion that the injection Depo-Medrol prescribed by Dr. Mukherjee was of such excessive dose that it would amount to deficiency in service by him which was his clinical assessment.
Thereafter, with regard to the alleged deficiency in the treatment given to Mrs. Anuradha by Opposite Party Doctors 2, 3, 5 and 6, there is no substance. The contention against the hospital that it was not having Burns-Ward, and therefore, the deceased suffered is also without substance. Hence, this complaint is dismissed. There shall be no order as to costs.
Aggrieved by the dismissal of his complaint, the complainant filed Civil Appeal (No.1727 of 2007) in the Honble Supreme Court. It would appear that even before the said appeal was filed before the Hon'ble Supreme Court, the Supreme Court was seized of the matter in Criminal Appeal Nos.1191-94 of 2005 filed by Malay Kumar Ganguly, the complainant in the criminal complaint, against the Orders passed by the Calcutta High Court. Since the Criminal Appeals and the Civil Appeal filed by the complainant in the present complaint raised the same questions of fact and law, the Hon'ble Supreme Court heard all the appeals together and decided the same by means of a detailed judgment dated 07.8.2009. By the said order, the Apex Court dismissed the Criminal Appeals filed by Shri Malay Kumar Ganguly but allowed the Civil Appeal No. 1727 of 2007 filed by the complainant and set aside the order dated 01.6.2006 passed by this Commission dismissing the complaint and remanded the matter to this Commission for the limited purpose of determining the adequate compensation, which the complainant is entitled to receive from the subsisting opposite parties by observing as under:
So far as the judgment of the Commission is concerned, it was clearly wrong in opining that there was no negligence on the part of the Hospital or the doctors. We, are, however, of the opinion, keeping in view the fact that Dr. Kaushik Nandy has done whatever was possible to be done and his line of treatment meets with the treatment protocol of one of the experts viz.. Prof. Jean Claude Roujeau although there may be otherwise difference of opinion, that he cannot be held to be guilty of negligence.
We remit the case back to the Commission only for the purpose of determination of the quantum of compensation. We, keeping in view the stand taken and conduct of AMRI and Dr. Mukherjee, direct that costs of Rs.5,00,000 and Rs.1,00,000 would be payable by AMRI and Dr. Mukherjee respectively.
We further direct that if any foreign experts are to be examined it shall be done only through video conferencing and at the cost of the respondents.
Summary In view of the foregoing discussion, we conclude as under:
The facts of this case viz., residence of the complainant and Anuradha (deceased) in USA and they working for gain in that country; Anuradha having been a victim of a rare and deadly disease Toxic Epidermal Necrolysis (TEN) when she was in India during April-May 1998 and could not be cured of the said disease despite her treatment at two superspeciality medical centres of Kolkata and Mumbai and the huge claim of compensation exceeding Rs.77 crores made by the complainant for the medical negligence in the treatment of Anuradha makes the present case somewhat extraordinary.
The findings given and observations made by the Supreme Court in its judgment dated 07.08.2009 are absolutely binding on this Commission not only as ratio decidendi but also as obiter dicta also, the judgment having been rendered by the Supreme Court in appeal against the earlier order passed by a three Member Bench of this Commission and, therefore, no attempt can be allowed to read down / dilute the findings and observations made by the Supreme Court because the Supreme Court has remitted the complaint to this Commission only for the purpose of determination of the quantum of compensation after recording the finding of medical negligence against the opposite parties and others.
The task entrusted to the Commission may appear to be simple but the facts of the present case and the voluminous evidence led on behalf of the complainant has made it somewhat arduous. Still difficult was the task of apprortionment of the liability to pay the awarded amount by the different opposite parties and perhaps it was for this reason that the Supreme Court has remitted the matter to this Commission.
Multiplier method provided under the Motor Vehicles Act for calculating the compensation is the only proper and scientific method for determination of compensation even in the cases where death of the patient has been occasioned due to medical negligence / deficiency in service in the treatment of the patient, as there is no difference in legal theory between a patient dying through medical negligence and the victim dying in industrial or motor accident. The award of lumpsum compensation in cases of medical negligence has a great element of arbitrariness and subjectivity.
The foreign residence of the complainant or the patient and the income of the deceased patient in a foreign country are relevant factors but the compensation awarded by Indian Fora cannot be at par which are ordinarily granted by foreign courts in such cases. Socio economic conditions prevalent in this country and that of the opposite parties / defendants are relevant and must be taken into consideration so as to modulate the relief. A complainant cannot be allowed to get undue enrichment by making a fortune out of a misfortune. The theoretical opinion / assessment made by a Foreign Expert as to the future income of a person and situation prevalent in that country cannot form a sound basis for determination of future income of such person and the Commission has to work out the income of the deceased having regard to her last income and future prospects in terms of the criteria laid down by the Supreme Court.
There exists no straight jacket formula for apportionment of the awarded compensation amongst various doctors and hospitals when there are so many actors who are responsible for negligence and the apportionment has to be made by evolving a criteria / formula which is just going by the nature and extent of medical negligence and deficiency in service established on the part of different doctors and hospitals.
On a consideration of the entirety of the facts and circumstances, evidence and material brought on record, we hold that overall compensation on account of pecuniary and non pecuniary damages works out to Rs.1,72,87,500/- in the present case, out of which we must deduct 10% amount on account of the contributory negligence / interference of the complainant in the treatment of Anuradha. That will make the net payable amount of compensation to Rs.1,55,58,750/- (rounded of to Rs.1,55,60,000/-). From this amount, we must further deduct a sum of Rs.25,93,000/- which was payable by Dr. Abani Roy Chowdhury (deceased) or his Legal Representative as the complainant has forgone the claim against them.
In view of the peculiar facts and circumstances of the case and as a special case, we have awarded a sum of Rs. 5,00,000/- as cost of litigation in the present proceedings.
The above amount shall be paid by opposite parties no.1 to 4 to the complainant in the following manner:
(i) Dr. Sukumar Mukherjee-opposite party no.1 shall pay a sum of Rs.40,40,000/- (Rupees Forty Lakh Forty Thousand only) i.e. [Rs.38,90,000/- towards compensation and Rs.1,50,000/- as cost of litigation].
(ii) Dr. B. Haldar (Baidyanth Halder)-opposite party no.2 shall pay a sum of Rs.26,93,000/- (Rupees Twenty Six Lakh Ninety Three Thousand only) i.e. [Rs.25,93,000/- towards compensation and Rs.1,00,000/- as cost of litigation]
(iii) AMRI hospital-opposite party no.3 shall pay a sum of Rs.40,40,000/- (Rupees Forty Lakh Forty Thousand only ) i.e. [Rs.38,90,000/- towards compensation and Rs.1,50,000/- as cost of litigation .
(iv) Dr. Balram Prasad-opposite party no.4 shall pay a sum of Rs.26,93,000/- (Rupees Twenty Six Lakh Ninety Three Thousand only) i.e. [Rs.25,93,000/- towards compensation and Rs.1,00,000/- as cost of litigation] The opposite parties are directed to pay the aforesaid amounts to the complainant within a period of eight weeks from the date of this order, failing which the amount shall carry interest @ 12% p.a. w.e.f. the date of default."
The appellant in this case has stated that the learned District Consumer Commission has held contributory negligence on the part of the deceased also but the learned Forum did not reduce the amount and granted the whole amount as prayed by the complainant. It shows that the appellant wants reduction in the awarded amount on the basis of the contributory negligence. Early pregnancy after the first delivery will not be termed as contributory negligence on the part of the lady if she or her child expired during delivery.
So in this case we find that the appellant showed negligence and carelessness in not treating properly the deceased and not giving proper injection at the proper time. When you came to know about the pregnancy on18.09.2004, why did you not take proper steps knowing that her first delivery was in your hospital and you have all the records. It was not the duty of the complainant to produce all the records of the first pregnancy because as per your averment the second pregnancy was very soon after the first delivery so you must have all the records with your hospital. So you showed negligence and carelessness on your part. Saying that, that it is a charitable hospital and its charge only ₹ 500 towards the prescription which is a token money. In all the hospital especially in the government hospitals this fee is ₹ 1 or ₹ 5. ₹ 500 in 2004 is not a meagre amount but it is a big amount. The value of ₹ 100 in 2004 is ₹ 360 today. So it cannot be said a token amount.
Thus we came to conclude that in this case there was negligence and carelessness on the part of the appellant and the learned District Consumer Commission has passed the judgment which needs no interference by this Court. So in the present circumstances the present appeal is liable to be dismissed with cost.
ORDER The present appeal is dismissed with cost. The judgment and order dated 19.12.2015 passed by the learned District Consumer Commission in complaint case no.155 of 2005, Wahid Ullah Khan Vs. Saint Jude's Hospital is upheld.
If any amount is deposited by the appellants at the time of filing of this appeal under section 15 of the Consumer Protection Act, 1986, may be remitted to the District Forum concerned for satisfying the decree as per rules alongwith accrued interest upto date.
The stenographer is requested to upload this order on the Website of this Commission today itself.
Certified copy of this judgment be provided to the parties as per rules.
(Vikas Saxena) (Rajendra Singh) Member Presiding Member Judgment dated/typed signed by us and pronounced in the open court. Consign to record. (Vikas Saxena) (Rajendra Singh) Member Presiding Member Dated 2.1.2024 JafRi, PA I Court 2 [HON'BLE MR. Rajendra Singh] PRESIDING MEMBER [HON'BLE MR. Vikas Saxena] JUDICIAL MEMBER