State Consumer Disputes Redressal Commission
Chanderwati vs Mool Chand Khairati Ram Hospital on 30 November, 2006
A-150/98 IN THE STATE COMMISSION:DELHI (Constituted under Section 9 of The Consumer Protection Act, 1986) Date of Decision: 30-11-2006 Appeal No. 150 of 1998 (Arising out of Order dated 09-09-1997 passed by the District Consumer Forum-II, Qutub Institutional Area, New Delhi, in Complaint Case No. 1377/1996) Smt. Chanderwati, W/o. Shri Horam Singh, R/o. House No.E-12, Hari Nagar Extension, P.O. Badarpur, New Delhi 110044. . . . Appellant Through Mr. Pankaj Seth, Advocate Versus 1. The Medical Superintendent, Mool Chand Kharaiti Ram Hospital, Lajpat Nagar, New Delhi. . . . Respondent No.1 Through Mr. B. Mahapatra, Advocate 2. Delhi Administration, Service through Its Secretary, Sham Nath Marg, . . . Respondent No.2 Delhi. 3. National Capital Territory of Delhi, Service through Its Chief Secretary, Sham Nath Marg, . . . Respondent No.3 Delhi. 4. United India Insurance Company Ltd., Office No.1, 607-608, Devika Towers, 6-Nehru Place, New Delhi 110019. . . . Respondent No.4 Through Mr. Ujwal Kumar, Advocate CORAM: Justice J.D. Kapoor, President Ms. Rumnita Mittal, Member
1. Whether Reporters of local newspapers be allowed to see the judgment?
2. To be referred to the Reporter or not?
Justice J.D. Kapoor (Oral)
1. This appeal filed against impugned Order dated 09-09-97 raises mainly two questions of facts and law as the complaint of the appellant against failed sterilization seeking compensation was dismissed. First question is whether the appellant is a consumer as defined under Sec. 2 (1)(d) of the Consumer Protection Act, as the program of sterilization was launched by the Central Government whereas the respondent hospital is a private hospital? Secondly, whether the operating doctor could be held guilty for medical negligence in case of a failed sterilization inspite of having undertaken all the necessary precautions?
2. The Delhi Government, Respondent No. 2 and 3, launched a sterilization scheme by way of family planning program in the year 1992. Pursuant to the programme, a post par tom unit was being run by the respondent No.1 hospital. To run this programme, respondent No. 2 and 3 were giving grant in aid to respondent No.1.
3. A perusal of the impugned order shows that the complaint of the appellant was dismissed mainly on two grounds, firstly, because the appellant failed to produce any evidence to negate the averments of the respondents that the PP Unit in respondent No.1 hospital was being run as a Family Planning Programme of Government of NCT of Delhi and, therefore, the appellant was not a direct patient of the respondent No.1 but was a patient in the PP Unit run by the Government free of cost under the scheme of Government of India and consequently the appellant failed to prove herself as a consumer; and secondly, that the accepted norms of medical science are that a family planning operation can really fail unless precautions are taken by the person, undergoing such operation, after the said operation as per medical advice. The Surgeon or the hospital cannot be held guilty of negligence unless it is proved that there was some flaw in the performance of the operation and that the flaw resulted because of the negligence or carelessness of the Surgeon performing the operation and that the appellant has not brought on record even an iota of evidence in this regard.
4. While assailing the finding of the District Forum that the appellant is not a consumer, the counsel for the appellant has placed reliance on the following judgments of the Supreme Court:- (i) State of Haryana & Ors Vs. Smt. Santra JT 2000 (5) SC 34 (II) State of Punjab Vs. Shiv Ram JT 2005 (7) SC 606 Para-40.
5. In Santras case the Supreme Court took the view that failed sterilization in a country where population is increasing by the tick of every second of the clock and the government has taken up family planning as an important program for the implementation of which it had created mass awakening for the use of various devices including sterilization operation, It is directly responsible for another birth in the family creating additional burden on the family who had chosen for sterilization operation. It was further observed that the medical officers entrusted with the implementation of the family planning programme cannot by their negligent acts in not performing the complete sterilization operation sabotage the scheme of national importance.
6. While observing that the lady who was operated upon was a poor lady and had already seven children, the Supreme Court held that an unwanted child born to her created additional burden for her on account of the negligence of the doctor while performing sterilization upon her and therefore she was clearly entitled to claim full damages from the State Government to enable her to bring up the child atleast till puberty.
7. In Shiv Rams case, the Supreme Court has also observed that to popularize the family planning programme the State Government should bring down illiteracy, ignorance or carelessness or are unable to avoid the consequences of failed sterilization.
The State government should think of devising and making provisions for a welfare fund or link up insurance companies, which would provide coverage for such scheme where a child is born to the woman after sterilization operation.
8. As is apparent from the two decisions, negligence of the doctor in failed sterilization is necessary to be proved. In this regard the counsel for the appellant has referred to the discharge summary of the patient to show as to the post-operative carelessness of the respondent No. 1 hospital doctors. The discharge summary nowhere advises the appellant to take care that this sterilization operation was not fully safe or cent percent foolproof nor did it advise the appellant to have regular follow up nor advised her to use contraceptives or routine check up and not even a word of caution against getting pregnant.
9. On the contrary, the counsel for the respondent has contended that in Santras case one fallopian tube was left open and that case was clearly distinguishable and, therefore, negligence was manifest. But the State Government was asked to compensate the ignorant and poor lady who had to bear the burden of one more unwanted child. In the instant case, there is no allegation of any deficiency in the operation. The counsel further contended that the allegation by the appellant that she was not given any advice to follow up or observe certain restrictions was without any force and further contended that the concerned certificate given by the hospital shows the decision to undergo sterilization operation has been taken independently and without any coercion.
10. As regards the allegation that the appellant was not informed about the risk apparently inherent in the sterilization operation, the counsel for the respondent contended that whenever a patient undergoes sterilization operation there is a counselling session in which each and every aspect of risk is explained and no sterilization operation is foolproof and in this regard the counsel has relied upon the consent form wherein the appellant stated that I also know that there are some chances of failure of operation for which the operating surgeon will not be held responsible by me or my relatives whatsoever.
11. At the outset, we may point out that consent form or explaining risk factor to the patient by the doctor is of no significance so far as allegations of medical negligence is concerned. The allegation of medical negligence has to be tested on independent criteria and cannot be washed away or wiped out merely on the premise of consent form. This is entirely a misconceived notion in the medical as well as legal fraternity that once the patient gives the consent form, the operating doctor is absolved of all the consequences flowing from the operation done by him. Medical negligence, which sometimes verges on criminal negligence, has to be decided on the various guidelines and tests laid down in respect of which there is a judicial unanimity. The question of medical negligence has been cropping up time and again before all the courts all over the world and one significant test known as Bolam Test by the English Judges reported in (1957) 2 AII ER 118, 121 D-F still holds the field. This test, in popular parlance is known as Bolam Test after the name of the petitioner. In short the test is as under:-
[Where you get a situation which involves the use of some special skill or competence then the test as to whether there has been negligence or not is to the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill.
A man need not possess the highest expert skill. It is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art (Charles worth & Percy, ibid., para 8.02)
12. Bolam test was accepted with approval in the following judgments:-
(I) Sidway V. Bethlem Royal Hospital Governors and Others 643 All England Law Reprots (1985) 1 All ER.
(II) Maynard V. West Midlands Regional Health Authority 635 All England Law Reports (1985) 1 All ER.
(III) Whitehouse V. Jordan and Another 650 All England Law Reports (1980) 1 All ER.
13. Presumably because of persuasive value of Bolams case that our own Supreme Court has in case after case and particularly in Indian Medical Association Vs. V.P. Shantha & Others (1995) 6 SCC 651 wherein Bolams case was also discussed has adopted this test as guidelines for the courts to adjudicate the medical negligence. Latest judgment of Supreme Court on this aspect is Jacob Matthew Vs. State of Punjab and Another (2005) SCC (Crl.) 1369. Observations of Supreme Court are as under:-
(3) A professional may be held liable for negligence on one of the two findings:
either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, which reasonable competence in the given case, the skill which he did possess.
The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.
(4) The test for determining medical negligence as laid down in Bolams case, WLR at p. 586 holds good in its applicability in India.
14. While dealing with the concept of medical negligence the Supreme Court laid down the following requirements:-
(i) That the guilty doctor should be shown to have done something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do.
(ii) Hazard or the risk taken by the doctor should be of such a nature that injury, which resulted was most likely imminent.
15. Although, there is a distinction between the medical negligence of a criminal nature and simplicitor medical negligence but consumer is entitled for compensation on account of both kinds of negligence. The test for holding the medical professional liable for criminal negligence should be such which should manifestly demonstrate utter act of rashness and negligence whereas ordinarily the medical negligence or deficiency means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service (Section 2(1)(g)).
16. In nutshell, each and every case of medical negligence has to be tested on the following criterion:-
(i) Whether the treating doctor had the ordinary skill and not the skill of the highest degree that he professed and exercised as everybody is not supposed to possess the highest or perfect level of expertise or skills in the branch he practices?
(ii) Whether the guilty doctor had done something or failed to do something which in the given facts and circumstances no medical professional would do when in ordinary senses and prudence?
(iii) Whether the risk involved in the procedure or line of treatment was such that injury or death was imminent or risk involved was upto the percentage of failures?
(iv) Whether there was error of judgment in adopting a particular line of treatment? If so what was the level of error? Was it so overboard that result could have been fatal or near fatal or at lowest mortality rate?
(v) Whether the negligence was so manifest and demonstrative that no professional or skilled person in his ordinary senses and prudence could have indulged in?
(vi) Everything being in place, what was the main cause of injury or death. Whether the cause was the direct result of the deficiency in the treatment and medication?
(vii) Whether the injury or death was the result of administrative deficiency or post-operative or condition environment-oriented deficiency?
17. The result will depend upon the answers to the above queries.
18. In the instant case, even if the medical negligence on the part of the doctor is not demonstrative as to what was the negligence committed by the doctor during the operation namely whether the doctor doing the operation was competent to do or not or whether the doctor has done some thing which he should not have done or whether there was such negligence which was manifest and demonstrative as was in the case of Santra (supra). Therefore, we hold that the failure of operation in any case may come within percentage of those operations, which rule out the foolproof nature of such operations, still Respondent No. 2 and 3 have to be held guilty for misleading representation qua the appellant.
19. Whatever may be the reasons, the fact remains that the appellant who is a poor lady has been burdened with the upbringing of a child whereas she has already three children.
The illiteracy, ignorance and poverty are curse in themselves and if persons suffering from all these three vices is heaped with additional burden, the misery, agony and emotional suffering one undergoes are immense.
20. In our view, in every failed sterilization, irrespective of the fact whether there was negligence on the part of the doctor or not; whether there was non-observance of the post-operative instructions given by the doctors or hospital or not, still we will hold the government responsible for compensating the person who was lured to go to the hospital where they were launching a national family planning programme. Such a person is not a consumer qua that hospital, but such a person is a consumer qua the government as it is the government who gives grant-in-aid to the hospital. However, if some medical negligence is proved against the hospital, such a person who is the direct beneficiary of the scheme launched by the government, run through private hospital for which the hospital receives consideration on behalf of the patient through the government is entitled for additional compensation from the hospital on the ground of medical negligence independently.
21. It was pursuant to the representation of respondent No. 2 and 3; appellant took the decision of getting herself sterilized from the hospital, respondent No.1, which was receiving grant in aid from the respondents, who had assured the success of the operation. If a woman is told by way of advertisement that there is no hundred per cent surety about the success of the operation, no woman would go for it. It is only on the basis of the wide publicity given by respondent No. 2 and 3 that the appellant opted for sterilization from respondent No.1 hospital.
22. In our view a compensation of Rs.
50,000/- (Fifty Thousand) will meet the ends of justice. The appeal is disposed of in above terms.
23. Payment shall be made within one month from the receipt of a copy of this order.
24. Copy of order as per statutory requirement be forwarded to the parties free of cost and to the concerned District Forum and thereafter the file be consigned to record. FDR/Bank Guarantee, if any, be released forthwith under proper receipt.
(Justice J.D. Kapoor) President (Rumnita Mittal) Member HK