State Consumer Disputes Redressal Commission
Rakesh Kumar Srivastava vs Dr. Vinod Kumar Gupta on 8 February, 2024
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/1771/2017 ( Date of Filing : 28 Sep 2017 ) (Arisen out of Order Dated 10/08/2017 in Case No. C/77/2009 of District Faizabad) 1. Rakesh Kumar Srivastava Gonda ...........Appellant(s) Versus 1. Dr. Vinod Kumar Gupta faizabad ...........Respondent(s) BEFORE: HON'BLE MR. Rajendra Singh PRESIDING MEMBER HON'BLE MR. SUSHIL KUMAR JUDICIAL MEMBER PRESENT: Dated : 08 Feb 2024 Final Order / Judgement Reserved State Consumer Disputes Redressal Commission U.P. Lucknow. Appeal No. 1771 of 2017 Rakesh Kumar Srivastava s/o Sh. Kanhaiya Lal, Village Wazirganj, Kasba Wazirganj, Pargana Mahadeva, Tehsil, Tarabganj, District, Gonda. ...Appellant. Versus 1- Dr. Vinod Kumar Gupta, R/o Wazirganj, Zapti, Devkali Road, PS & District, Faizabad. 2- Smt. Sarita Gupta w/o Dr. Vinod Kumar Gupta, Managing Director, Ashirvad Hospital, Mohalla, Wazirganj, Zapti, District, Faizabad. ...Respondents. Present:- 1- Hon'ble Sri Rajendra Singh, Member. 2- Hon'ble Sri Sushil Kumar, Member. Sri Prasoon Srivastava, Advocate for the appellant. Ms. Mandvi Mehrotra and Sri V.K. Yadav, Jr. Advocates of Sri Manish Mehrotra, Advocate for respondents. Date : 22.2.2024 JUDGMENT
Per Sri Rajendra Singh, Member- This Appeal has been filed by the appellant against the judgment and order dated 10.8.2017 passed by Ld. District Consumer Forum, Faizabad in Complaint case no.77 of 2009, Rakesh Kumar Srivastava vs. Dr. Vinod Kumar Gupta & anr.
The brief facts of the appeal are that, that the deceased was admitted on 05.06.2008 in the hospital owned and operated by opposite party-2 due to severe pain in the stomach and his treatment was started under the supervision of opposite party-1. The opposite party-1 suggested the appellant that the patient (deceased) had a stone in the gallbladder and advised for biopsy test and in furtherance he has given anaesthesia to the deceased and had sent gallbladder to Padma Laboratory on 05.06.2008 for biopsy and charged ₹650/- for biopsy. The OP-1 also took ₹15,000/- from the appellant for the treatment of the deceased for which he had not given any acknowledgement receipts of the said payment. The appellant is not aware about the medical terminology and on perusal of the documents submitted by opposite parties in the enquiry before Chief Medical Officer, Faizabad, it appears that OP-1 on the same day i.e. 05.06.2008, without conducting any requisites test prior to the operation, removed the gallbladder through laparoscopic technique and then sent the gallbladder for biopsy to Padma Laboratory.
The deceased was unconscious after operation done by OP1. The deceased started vomiting in the evening, which was reported to OP-1 and OP-2 but they did not attend the deceased and unfortunately the deceased died at 11 PM on the same day i.e. 05.06.2008. The opposite parties did not mention the cause of death in the death certificate and has not mentioned the name of the doctor issuing the said certificate. The appellant reported the incident to the police authorities and requested them to register the case against the opposite parties and for conducting the post-mortem of the deceased but the police authorities refused to take any action against opposite parties and also refused for conducting post-mortem. On 07.06.2008 the laboratory report confirmed that there was no stone in the gallbladder. The complainant filed the complaint under section 156(3) CrPC before the Sessions Court, Faizabad, wherein the court ordered police authorities to register case against opposite parties under section 304A, IPC.
The learned District Consumer Forum vide its order dated 10.08.2017 dismissed the complaint. The order passed by the learned District Forum is against law and facts. The impugned order is liable to be set aside, modified or varied as the same is against the law as well as facts of the case. The impugned order has been passed ignoring the pleadings, documents and evidence led by the parties. The learned District Forum did not consider the fact that the OP-1 did not conduct any test which was necessary to be done prior to the operation of the deceased. The learned District Consumer Forum without considering the fact that OP-1 and OP-1 has placed false and fabricated test reports dated 14.01.2008, 20.05.2008 and 03.06.2008 before the enquiry conducted by CMO Faizabad. It prima facie appears that none of the said test reports has a reference number and on the bare perusal it is evident that signatures were done by identical person on all the three test reports. The learned District Forum did not verify the authenticity of the test reports submitted by the OP-1 and OP-2.
The learned Forum failed to consider the fact that opposite parties did not place any relevant document which might show the presence of stone in the gallbladder. The learned Forum did not consider the test report of Chandan Pharmacy dated 18.05.2008 which did not mention the presence of gallstones. The opposite parties did not properly monitored the deceased after the operation and sent it to the ward in an unconscious state. The medical record submitted by the opposite parties in the enquiry before CMO is sufficient enough to show that the deceased has been sent to the ward in unconscious state. The learned Forum ignored the fact that in the enquiry, the CMO has observed that due to no post-mortem report, it is not possible to ascertain the cause of death and further he has given proximate reason behind the death of the deceased in the present circumstances. The learned Forum without appreciating the law propounded by the Hon'ble National Commission New Delhi in Suresh Gupta (Dr.) Vs. Vinod Kumar Rawat that "it was bounden duty of hospital to report to police for such unnatural deaths and post-mortem should be conducted. This is deficiency in service and negligence by OP." The learned Forum without applying its mind, affirmed the decision of the CMO which is in contradiction of the above mentioned judgement of the Hon'ble NCDRC.
The Hon'ble Supreme Court and Hon'ble NCDRC has in many cases held that if 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 the hospital and the attending doctor to satisfy the court that there was no lack of care or diligence. It is therefore respectfully prayed that this Hon'ble commission may kindly be pleased to set aside, modify or very the impugned judgement and order dated 10.08.2017 past the learned District Consumer Forum.
We have heard the learned counsel for the appellant Sri Prasoon Srivastava, and Ms. Mandvi Mehrotra and Sri V.K. Yadav, Jr. Advocates of Sri Manish Mehrotra, learned counsel of the respondents. We have perused the pleadings, evidences and documents on record.
In this case and enquiry commission has been instituted who has enquired the matter and submitted its report. We have seen the said enquiry report. As per enquiry report the operation of the patient Mr. Harshit Srivastava was performed through laparoscopic procedure after giving general anaesthesia. When the patient came on senses he was transferred to post-operative room where he was under the observation of expert paramedical staff. The patient was normal for one hour and thereafter he was sent in the general ward. Till 9 PM in the night the patient was alright. At about 10:45 PM there started foaming at the mouth. On getting information Dr. V. K. Gupta rushed the hospital and started his treatment but the condition of the patient was deteriorating and he could not be saved. In the enquiry report it has also been said that there was stone in the gallbladder and the patient has taken medical advice from many surgeons before coming to the opposite party. It is said that operation was performed on 05.06.2008 at 11.45. It has been stated in the enquiry report that there was pathological reports of blood which was performed on 18.05.2008 (Chandan Diagnostic Centre) and report dated 02.06.2008 (Padma Lab). It shows that no pathological examination has been done by the opposite parties in the hospital. All the previous reports were taken into consideration which was not proper because just before the operation, all the histopathological examinations should have been done so that the surgeon may know the different parameters of the patient and could take a decision whether the patient should be operated or not. So it is deficiency in service and also negligence on the part of the opposite party.
Again in the enquiry report it is specifically been mentioned that the gallbladder was removed through laparoscopic procedure and there was a stone in the gallbladder which was sent for examination to Dr. Lal Pathology lab. The report confirmed chronic cholecystitis. At this stage we have to see that what is chronic cholecystitis.
"Cholecystitis is the sudden inflammation of your gallbladder. If this condition persists over time, such as for months, with repeated attacks, or if there are recurrent problems with gallbladder function, it's known as chronic cholecystitis.
The gallbladder is a small, pear-shaped organ located on the underside of your liver. It stores bile made by the liver and sends it to the small intestine via the common bile duct (CBD) to aid in the digestion of fats. The CBD connects the liver, the gallbladder, and the pancreas to the small intestine. Gallstones blocking the CBD are the leading cause of cholecystitis. This blockage causes bile to build up in the gallbladder, and that buildup causes the gallbladder to become inflamed.
If this happens acutely in the face of chronic inflammation, it is a serious condition. The gallbladder could rupture if it's not treated properly, and this is considered a medical emergency. Treatment usually involves antibiotics, pain medications, and removal of the gallbladder."
So Gallstones blocking the CBD are the leading cause of cholecystitis. CBD connects the liver, the gallbladder, and the pancreas to the small intestine. So there is problem in Common Bile Duct. We have seen the pathological report of Dr Lal pathology. In the column of 'GROSS' it has been written, "received already cut open the specimens of gallbladder measuring 4.6 X 2.4 X 1 cm. External surface is light brown, Oakley congested. Mucosal surface is velvety, greenish. While thicknesses 0.2 - 0.3 cm. No stone/live node identified grossly."
In the column of IMPRESSION, it has been written - gallbladder, cholecystectomy :
chronic cholecystitis no atypia is seen Atypia is a clinical term for abnormality in a cell. The term is medical jargon for an atypical cell. It may or may not be a precancerous indication associated with later malignancy, but the level of appropriate concern is highly dependent on the context with which it is diagnosed.
Atypia can be caused by an infection or irritation if diagnosed in a Pap smear, for example. In the uterus it is more likely to be precancerous.
The term atypia is also used dermatoligically and can be a precursor to melanoma.
A dermatological pathology report may show normal (junctional, compound, or intradermal) nevi, various levels of atypia (slight, moderate, severe), or melanoma. Atypia in this context is a precursor to melanoma, but is not yet melanoma.
If a mole shows slight or moderate atypia and margins are clear, no further treatment is typically needed. It would be wise to re-examine if pigmentation recurs after excision. If a mole shows slight or moderate atypia and margins are not clear, it is typical to re-excise or re-shave to get around the lesion.
A cholecystectomy is a surgical procedure to remove your gallbladder -- the small, hollow organ that stores bile for your digestive system. Gallbladder removal surgery is a common treatment for many types of gallbladder disease. This is because the downsides of having your gallbladder removed are generally fewer than those of the diseases it treats. You can live a healthy life without a gallbladder.
Now as per Dr. Lal pathology report cat that, no stone was found in the gallbladder but the term chronic cholecystitis represent the fact that stone was present in the CBD, Common Bile Duct.
The CBD connects the liver, the gallbladder, and the pancreas to the small intestine as is clear from the above image. So there is problem in CBD and not in the gallbladder.
Now we have to see the oath taken by a doctor before entering into the medical profession. 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.
Further we will also discuss about the liabilities of the doctor in view of the different case laws and also about the maxim of res ipsa loquitur.
OATH "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.KaushikNandy 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."
In the present case, the negligence of extreme degree has been shown by the doctor by not sending the patient for any type of histopathological examinations and believed on the previous reports and immediately operated the patient. What was the haste of operating the patient immediately? After that the patient has been sent under unconscious state to the room. The main fundamentals of post-operative care is totally lacking in this case. We should know the various aspects of the post-operative care which has to be performed by all the surgeon after surgery or after any kind of treatment.
Postoperative patients must be monitored and assessed closely for any deterioration in condition and the relevant postoperative care plan or pathway must be implemented.
The NCEPOD (2011) report found that patients whose condition was deteriorating were not always identified and referred for a higher level of care. Patients should be made as comfortable as possible before postoperative checks are performed.
Postoperative patients are at risk of clinical deterioration, and it is vital that this is minimised. Knowledge and understanding of the key areas of risk and local policies will help reduce potential problems (National Patient Safety Agency, 2007; National Institute for Health and Clinical Excellence, 2007).
Track and trigger or early warning systems are widely used in the UK to identify deteriorating patients. These have been adapted by trusts for adults and children and are based on the patient's pulse and respiratory rate, systolic blood pressure, temperature and level of consciousness. Additional monitoring may include pain assessment, capillary refill time, percentage of oxygen administered, oxygen saturation, central venous pressure, infusion rates and hourly urine output.
The National Early Warning Score (NEWS) was developed by a working party to provide a national standard for assessing, monitoring and tracking acutely and critically ill patients (not for use with children under 16 years or in pregnancy); the intention was that trusts would use it to replace their locally adapted early warning systems (Royal College of Physicians, 2012). Like other early warning systems, NEWS has six physiological parameters:
Respiratory rate;
Oxygen saturation;
Temperature;
Systolic blood pressure;
Pulse rate;
Level of consciousness (this will be impaired in patients who have had recent sedation or are receiving opioid analgesia, which should be taken into consideration in assessment).
The system also includes a weighting score of two, which is added if the patient is receiving supplemental oxygen via a mask or nasal cannulas.
When assessing the postoperative patient using NEWS, it is vital that the patient is observed for signs of haemorrhage, shock, sepsis and the effects of analgesia and anaesthetic. Patients receiving intravenous opiates are at risk of their vital signs and consciousness levels being compromised if the rate of the infusion is too high. It is therefore imperative that the patient's pain control is managed well, initially by the anaesthetist and then the ward staff and pain team or anaesthetist, to ensure that the patient has adequate analgesia but is alert enough to be able to communicate and cooperate with clinical staff in the postoperative period.
Many trusts have yet to implement NEWS, although it is beginning to be taught in pre-registration nursing programmes. Student nurses frequently perform postoperative observations under the supervision of a nurse; it is reassuring that they receive some insight and education as recommended by NCEPOD (2011).
Vital signs;
Vital signs should be performed in accordance with local policies or guidelines and compared with the baseline observations taken before surgery, during surgery and in the recovery area.
Nurses should also be aware of the parameters for these observations and what is normal for the patient under observation. When assessing patients' recovery from anaesthesia and surgery, these observations should not be considered in isolation; the nurse should look at and feel the patient. This also applies to children and should include observation of other signs and symptoms, for example abdominal tenderness or poor urine output, which could indicate deterioration (Royal College of Nursing, 2011). The RCN (2011) provides guidance on vital signs performed post-operatively on children. Many trusts now insist that vital signs are performed manually to provide more accurate recording and assessment.
All vital signs and assessments should be recorded clearly in accordance with guidelines for record keeping (Nursing and Midwifery Council, 2009). Handheld personal digital assistants (PDAs) are used at some trusts to store track and trigger data and calculate early warning scores, which can be accessed by the clinical and outreach teams.
When a patient's condition is identified as deteriorating, this information can be passed verbally to appropriate health professionals using the Situation, Background, Assessment and Recommendation (SBAR) tool advocated by the NHS Institute for Innovation and Improvement (2008).
Airway and respirations Respiratory rate and function is often the first vital sign to be affected if there is a change in cardiac or neurological state. It is therefore imperative that this observation is performed accurately; however, studies show it is often omitted or poorly assessed (NPSA, 2007; NCEPOD, 2005).
Nurses should observe and record the following:
Airway;
Respiratory rate (regular and effortless), rhythm and depth (chest movements symmetrical);
Respiratory depression: indicated by hypoventilation or bradypnoea, and whether opiate-induced or due to anaesthetic gases.
Oxygen therapy Oxygen is administered to enable the anaesthetic gases to be transported out of the body, and is prescribed when patients have an epidural, patient-controlled analgesia or morphine infusion. Nurses should ensure and record the following:
Oxygen therapy is prescribed;
Oxygen is administered at correct rate;
Continuous oxygen therapy is humidified to prevent mucous membranes from drying out;
The skin above the ears is protected from elastic on the mask.
Pulse oximetry Oxygen saturation should be above 95% on air, unless the patient has lung disease, and maintained above 95% if oxygen therapy is prescribed to prevent hypoxia or hypoxaemia. An abnormal recording may be due to shivering, peripheral vasoconstriction or dried blood on the finger.
Nurses should ensure that:
The finger probe is clean;
The position of the probe is changed regularly to prevent fingers becoming sore.
Heart rate, blood pressure and capillary refill time The following should be checked and recorded:
Rate, rhythm and volume of pulse;
Blood pressure;
Capillary refill time to assess circulatory status, along with the colour and temperature of limbs, also identifying reduced peripheral perfusion.
Particular attention should be paid to the systolic blood pressure as a lowered systolic reading and tachycardia may indicate haemorrhage and/or shock, although initially the blood pressure may not drop and will remain within normal limits as the body compensates. Tachycardia may also indicate that the patient is in pain, has a fluid overload or is anxious. Hypertension can be due to the anaesthetic or inadequate pain control.
Body temperature Children, older adults and patients who have been in theatre for a long period are at risk of hypothermia. Shivering can be due to anaesthesia or a high temperature indicative of an infection, while a drop in temperature might indicate a bacterial infection or sepsis.
Patients' temperature should be monitored closely and action taken to return it to within normal parameters.
Use a Bair Hugger (forced-air blanket) and blankets to warm the patient if their temperature is too low;
Choose an appropriate method to cool the patient if their temperature is too high (antipyretics/fanning/ tepid sponging).
Level of consciousness Postoperative patients should respond to verbal stimulation, be able to answer questions and be aware of their surroundings before being transferred to the ward and throughout the postoperative period.
A change in the level of consciousness can be a sign that the patient is in shock. The AVPU scale (Box 2) is appropriate for assessing consciousness in adults, children and young people unless they have had neurosurgery (RCN, 2011).
Fluid balance The NCEPOD (2011) found, in 30% of patient data reviewed, there was insufficient recording of postoperative fluid balance. Nurses should observe/undertake and record on the fluid balance chart the following:
IV fluids (colloids and crystalloids used to replace fluid loss postoperatively) and infusions;
Oral intake;
Urine output: catheter urine measurements should not be less than 0.5ml/kg/hour. Oliguria can be a sign of hypovolaemia and should be reported to medical staff immediately. Check that the catheter is not kinked or that the patient is not lying on the tubing if urine output is reduced;
Colour of stoma (where appropriate) and whether there is any bleeding;
Nausea and vomiting: if necessary, administration of antiemetics should be checked and vomit bowls and tissues should be within easy reach of the patient;
Oral care;
Nasogastric tube drainage (aspirate if patient feels nauseous unless otherwise indicated);
Colour and amount of wound drainage: large amounts of fresh blood could be an indication of haemorrhage; if there is no wound drainage, it is advisable to check that the drain has not fallen out.
Intravenous infusions The RCN (2010) and Health Protection Scotland (2012) recommend that peripheral venous catheters (PVC) are checked daily as a minimum, and consideration given to removing any PVC that has been in situ longer than 72 hours (Health Protection Scotland, 2012) or 72-96 hours (Department of Health, 2011).
A phlebitis scale can be used to help assess the PVC site; the Visual Infusion Phlebitis Scale (Jackson, 1998) is frequently used and recommended by the RCN (2010). These national guidelines should be used as resources in caring for PVCs. The following should be checked and recorded:
The PVC site when changing IV fluids, before administering IV medication;
Signs of phlebitis (redness, heat and swelling).
Conclusion The postoperative healthcare team is under constant pressure to discharge patients quickly. This can lead to vital signs being missed and result in a delay in recovery.
Patients can be discharged quickly only when they do not experience any post-operative complications, many of which can be avoided or identified with correct and thorough monitoring of signs and symptoms.
All health professionals must continually update their theoretical knowledge and clinical skills; those working in post-operative care can do this by relying less on electronic equipment and developing their ability to combine the use of assessment tools with good observational skills; feeling, listening for abnormal sounds and closely observing their patients.
There are guidelines issued by World Health Organisation for Post Operative Care - these are Postoperative care Post operative note and orders The patient should be discharged to the ward with comprehensive orders for the following:
• Vital signs • Pain control • Rate and type of intravenous fluid • Urine and gastrointestinal fluid output • Other medications • Laboratory investigations The patient's progress should be monitored and should include at least:
• A comment on medical and nursing observations • A specific comment on the wound or operation site • Any complications • Any changes made in treatment Aftercare: Prevention of complications • Encourage early mobilization:
o Deep breathing and coughing o Active daily exercise o Joint range of motion o Muscular strengthening o Make walking aids such as canes, crutches and walkers available and provide instructions for their use • Ensure adequate nutrition • Prevent skin breakdown and pressure sores:
o Turn the patient frequently o Keep urine and faeces off skin • Provide adequate pain control Discharge note On discharging the patient from the ward, record in the notes:
• Diagnosis on admission and discharge • Summary of course in hospital • Instructions about further management, including drugs prescribed.
Ensure that a copy of this information is given to the patient, together with details of any follow-up appointment .
(WHO/EHT/CPR: WHO Surgical Care at the District Hospital 2003 Postoperative Management) If the patient is restless, something is wrong.
Look out for the following in recovery:
• Airway obstruction • Hypoxia • Haemorrhage: internal or external • Hypotension and/or hypertension • Postoperative pain • Shivering, hypothermia • Vomiting, aspiration • Falling on the floor • Residual narcosis The recovering patient is fit for the ward when:
• Awake, opens eyes • Extubated • Blood pressure and pulse are satisfactory • Can lift head on command • Not hypoxic • Breathing quietly and comfortably • Appropriate analgesia has been prescribed and is safely established (WHO/EHT/CPR: WHO Surgical Care at the District Hospital 2003 ) Post operative pain relief • Pain is often the patient's presenting symptom. It can provide useful clinical information and it is your responsibility to use this information to help the patient and alleviate suffering.
• Manage pain wherever you see patients (emergency, operating room and on the ward) and anticipate their needs for pain management after surgery and discharge.
• Do not unnecessarily delay the treatment of pain; for example, do not transport a patient without analgesia simply so that the next practitioner can appreciate how much pain the person is experiencing.
Pain management is our job.
Pain Management and Techniques • Effective analgesia is an essential part of postoperative management.
• Important injectable drugs for pain are the opiate analgesics. Nonsteroidal antiinflammatory drugs (NSAIDs), such as diclofenac (1 mg/kg) and ibuprofen can also be given orally and rectally, as can paracetamol (15 mg/kg).
• There are three situations where an opiate might be given: o Preoperatively o Intraoperatively o Postoperatively • Opiate premedication is rarely indicated, although an injured patient in pain may have been given an opiate before coming to the operating room.
• Opiates given pre- or intraoperatively have important effects in the postoperative period since there may be delayed recovery and respiratory depression, even necessitating mechanical ventilation.
• Short acting opiate fentanyl is used intra-operatively to avoid this prolonged effect.
• Naloxone antagonizes (reverses) all opiates, but its effect quickly wears off.
• Commonly available inexpensive opiates are pethidine and morphine.
• Morphine has about ten times the potency and a longer duration of action than pethidine.
(continued next page) WHO/EHT/CPR: WHO Surgical Care at the District Hospital 2003) Post operative pain relief (continued) • Ideal way to give analgesia postoperatively is to:
o Give a small intravenous bolus of about a quarter or a third of the maximum dose (e.g. 25 mg pethidine or 2.5 mg morphine for an average adult) o Wait for 5-10 minutes to observe the effect: the desired effect is analgesia, but retained consciousness o Estimate the correct total dose (e.g. 75 mg pethidine or 7.5 mg morphine) and give the balance intramuscularly.
o With this method, the patient receives analgesia quickly and the correct dose is given • If opiate analgesia is needed on the ward, it is most usual to give an intramuscular regimen:
¾ Morphine: - Age 1 year to adult: 0.1-0.2 mg/kg - Age 3 months to 1 year: 0.05-0.1 mg/kg ¾ Pethidine: give 7-10 times the above doses if using pethidine • Opiate analgesics should be given cautiously if the age is less than 1 year. They are not recommended for babies aged less than 3 months unless very close monitoring in a neonatal intensive care unit is available.
Anaesthesia& Pain Control in Children • Ketamine anaesthesia is widely used for children in rural centres (see pages 14-14 to 14-21), but is also good for pain control. • Children suffer from pain as much as adults, but may show it in different ways.
• Make surgical procedures as painless as possible:
o Oral paracetamol can be given several hours prior to operation o Local anaesthetics (bupivacaine 0.25%, not to exceed 1 ml/kg) administered in the operating room can decrease incisional pain o Paracetamol (10-15 mg/kg every 4-6 hours) administered by mouth or rectally is a safe and effective method for controlling postoperative pain o For more severe pain, use intravenous narcotics (morphine sulfate 0.05-0.1 mg/kg IV) every 2-4 hours o Ibuprofen 10 mg/kg can be administered by mouth every 6-8 hours o Codeine suspension 0.5-1 mg/kg can be administered by mouth every 6 hours, as needed.
(WHO/EHT/CPR: WHO Surgical Care at the District Hospital 2003) Therefore it is clear that post-operative care is most important in a case of Surgery. If you have no infra or paraphernalia, you are not supposed to proceed further regarding operation. In this case when you go to peruse the total cases history of the patient, it was crystal clear that the opposite parties failed to provide the required post-operative care and has shown carelessness right from the first operation, second operation and asking the patient to go to some other hospital . No doubt that the doctor performed his duty with utmost care and caution but they also showed negligence in some cases. The circumstances shows that after operation, the opposite party left the patient on the operation table ,and directed the staff and junior doctors to do further dressing and stitching. No documents, discharge summary and all the notes regarding both the above mentioned operation which have been performed in the nursing home of the opposite parties has been filed for perusal. No evidence has been shown for taking the patient for two round of operation. In the operation of appendix what complications develop after the operation which made it compulsory for second operation. In spite of second operation the opposite party failed to manage the post-operative management and miserably failed to provide life-support system to the patient. It shows that the opposite parties have no paraphernalia for the operation. This itself shows the carelessness of the opposite party and also establishes the negligence played in this case with the complainant.
What is septicaemia?
Septicemia, or sepsis, is the clinical name for blood poisoning by bacteria. It is the body's most extreme response to an infection. Sepsis that progresses to septic shock has a death rate as high as 50%, depending on the type of organism involved. Sepsis is a medical emergency and needs urgent medical treatment. Without treatment, sepsis can quickly lead to tissue damage, organ failure, and death.
We have seen the ultrasonography report dated 20.05.2008 of the patient in which it has been written that CBD - normal in diameter, no stone is seen in it. Opinion - gallstone. There is no size of any stone has been mentioned in this report. In spite of this ambiguous report, the respondent believed on this report and went to operation room straightforward. The patient was admitted in the respondents hospital on 05.06.2008, after about 15 days of the said ultrasonography report. When the size of the store has not been mentioned in the ultrasonography report, it might happen that this small stone may be washed out through the way of urine. So it was the preliminary duty of the doctor to get ultrasonography before the said operation. What happened in this case that when the gallbladder with stone as has been said by the respondent, sent to the pathology, the report is that there is no gallstone in the gallbladder. Really it is surprising that in this case there is negligence of the extreme level by the treating doctors. The patient was about 14 years of his and has passed class IXth.
It has been said by the respondent that the complainant asked the police for post-mortem but there is no such document showing that the complainant has denied for the post-mortem. In this case when there was foaming at mouth, it makes the case suspicious and it was the bounden duty of doctor that post-mortem should have been done to know the exact cause of death. What are the reason of foaming at mouth? It has not been given by the treating doctors.
The Hon'ble NCDRC in the case of Suresh Gupta (Dr.) & Ors. Vs. Vinod Kumar Rawat, III (2013) CPJ 371 (NC), has held, "the conduct of OP again made us suspicious that the patient Suman died at 2:55 AM on 5.7.1999 . The OP forcibly sent the dead body in the ambulance during the night itself to the residence of the complainant. The respondent did not inform the police and did not get the post-mortem done. It was the bounden duty of hospital to report the police for such unnatural deaths and PM should be conducted. This is a deficiency in service and negligence by OP."
Hon'ble Supreme Court in the case of Civil Appeal no. 4119 of 1999, Nizam Institute of Medical Sciences Vs. Prasantha S. Dhanaka & Ors. with CA no.3126/2000 ( Jt. 14 May 2009 - Three JJ) has held, "29. These submissions have absolutely no merit. This Court in Dr. J.J. Merchant & Ors. Vs. Shrinath Chaturvedi (2002) 6 SCC 635 while dealing with the argument that the matter should be relegated to the civil court observed:
"In the present case, there is inordinate delay of about nine years in disposal of complaint. However, if this contention raised by the learned counsel for the appellants is accepted, apart from the fact that it would be unjust, the whole purpose and object of enacting the Consumer Protection Act, 1986 (hereinafter referred to as "the Act") would be frustrated. One of the main objects of the Act is to provide speedy and simple redressal to consumer disputes and for that a quasi-judicial machinery is sought to be set up at the district, State and Central level. These quasi-judicial bodies are required to observe the principles of natural justice and have been empowered to give relief of a specific nature and to award, wherever appropriate, compensation to consumers. Penalties for non-compliance with the orders given by the quasi-judicial bodies have also been provided. The object and purpose of enacting the Act is to render simple, inexpensive and speedy remedy to the consumers with complaints against defective goods and deficient services and the benevolent piece of legislation intended to protect a large body of consumers from exploitation would be defeated. Prior to the Act, consumers were required to approach the civil court for securing justice for the wrong done to them and it is a known fact that decision in a suit takes years. Under the Act, consumers are provided with an alternative, efficacious and speedy remedy. As such, the Consumer Forum is an alternative forum established under the Act to discharge the functions of a civil court. Therefore, delay in disposal of the complaint would not be a ground for rejecting the complaint and directing the complainant to approach the civil court."
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 in 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 (as in Chinkeow v. Government of Malaysia (1967) 1 WLR 813 P.C.) or use of wrong gas during the course of an anesthetic or leaving inside the patient swabs or other items of operating equipment after surgery. One often reads about such incidents in the newspapers. The issues arising in the complaints in such cases can be speedily disposed of by the procedure that is being followed by the Consumer Disputes Redressal Agencies and there is no reason why complaints regarding deficiency in service in such cases should not be adjudicated by the Agencies under the Act. In complaints involving complicated issues requiring recording of evidence of experts, the complainant can be asked to approach the Civil Court for appropriate relief. Section 3 of the Act which prescribes that the provisions of the Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force, preserves the right of the consumer to approach the Civil Court for necessary relief. We are, therefore, unable to hold that on the ground of composition of the Consumer Disputes Redressal Agencies or on the ground of the procedure which is followed by the said Agencies for determining the issues arising before them, the service rendered by the medical practitioners arc not intended to be included in the expression 'service' as defined in Section 2(1)(o) of the Act.
32. 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. In Savita Garg (Smt.)vs. Director, National Heart Institute (2004) 8 SCC 56 it has been observed as under:
"Once an allegation is made that the patient was admitted in a particular hospital and evidence is produced to satisfy that he died because of lack of proper care and negligence, then the burden lies on the hospital to justify that there was no negligence on the part of the treating doctor or hospital. Therefore, in any case, the hospital is in a better position to disclose what care was taken or what medicine was administered to the patient. It is the duty of the hospital to satisfy that there was no lack of care or diligence. The hospitals are institutions, people expect better and efficient service, if the hospital fails to discharge their duties through their doctors, being employed on job basis or employed on contract basis, it is the hospital which has to justify and not impleading a particular doctor will not absolve the hospital of its responsibilities."
33. In the light of the above facts, we have no option but to hold that the attending doctors were seriously remiss in the conduct of the operation and it was on account of this negligence that the Paraplegia had set in. We accordingly confirm the findings of the Commission on this score as well.
34. The Tribunal has also found that the complainant had to undergo great agony and inconvenience for lack of proper post operative medical care. We, however, see that no specific case has been spelt out on this score and only general observations, stemming from the complications arising out of an operation gone wrong, have been made. We need to say nothing more on this aspect.
35. The question of compensation which has been hotly debated and discussed during the course of arguments, now needs to be dealt with. Before the Commission, the complainant assessed his claim at a little over Rs.4.61 cores. As already observed above, the Commission has thought it fit to award compensation under the following heads:
(a) Rs.8 lakh (expected to yield a monthly interest of about Rs.8,000/-] towards prospective charges for physiotherapy, nursing and associated expenses;
(b) Rs.4 lakh ( likewise expected to yield a monthly interest of about Rs.4,000/-) for supplementing the complainant's future earnings, and
(c) Rs.2 lakh as compensation for mental agony, physical suffering and pain and also for physiotherapy, nursing and associated expenses already incurred by him.
6. In addition, a sum of Rs.1.5 lakh has been given as compensation to the complainant's parents for their agony, stress and depression and the future care they may have to bestow on their son. A total sum of Rs.15.5 lakh has, accordingly been determined payable by NIMS, the appellant before us.
37. The complainant, who has argued his own case, has submitted written submissions now claiming about 7.50 Crores as compensation under various heads. He has, in addition sought a direction that a further sum of Rs. 2 crores be set aside to be used by him should some developments beneficial to him in the medical field take place. Some of the claims are untenable and we have no hesitation in rejecting them. We, however, find that the claim with respect to some of the other items need to be allowed or enhanced in view of the peculiar facts of the case. Concededly, the complainant is a highly qualified individual and is gainfully employed as an IT Engineer and as per his statement earning a sum of Rs.28 Lakh per annum though he is, as of today, about 40 years of age. The very nature of his work requires him to travel to different locations but as he is confined to a wheel chair he is unable to do so on his own. His need for a driver cum attendant is, therefore, made out. The complainant has worked out the compensation under this head presuming his working life to be upto the age of 65 years. We feel that a period of 30 years from the date of the Award of the Commission i.e. 16 th February, 1999, rounded off to Ist March, 1999, would be a reasonable length of time. A sum of Rs.2,000/- per month for a period of 30 years (rounded off from 1st of March 1999) needs to be capitalized. We, accordingly, award a sum of Rs.7.2 Lakh under this head. The complainant has also sought a sum of Rs.49,05,800/- towards nursing care etc. as he is unable to perform even his daily ablutions without assistance. He has computed this figure on the basis of the salary of a Nurse at Rs. 4375/-per month for 600 months. We are of the opinion that the amount as claimed is excessive. We, thus grant Rs.4,000/- per month to the appellant for a period of 30 years making a total sum of Rs.14,40,000/-. The complainant has further sought a sum of Rs.46 Lakhs towards physiotherapy etc. at the rate of Rs.4,000/- per month. We reduce the claim from Rs.4,000/- to Rs.3,000/- per month and award this amount for a period of 30 years making a total sum of Rs.10,80,000/- At this stage, it may be pointed out that some of the medical expenses that had been incurred by the complainant have already been defrayed by the employer of the complainant's father and we are, therefore, disinclined to grant any compensation for the medical expenses already incurred. However, keeping in view the need for continuous medical aid which would involve expensive medicines and other material, and the loss towards future earnings etc., we direct a lump sum payment of Rs.25/-lakhs under each of these two heads making a total of Rs.50 lakhs. In addition, we direct a payment of Rs.10 lakh towards the pain and suffering that the appellant has undergone. The total amount thus computed would work out to Rs.1,00,05,000 (Rs.1 crore 5 thousand) which is rounded off to Rs. One Crore plus interest at 6% from Ist March, 1999 to the date of payment, giving due credit for any compensation which might have already been paid.
38. The complainant has also claimed a sum of Rs.2 crore to be put in deposit to be utilized by him in case some developments in the medical field make it possible for him to undergo further treatment so as to improve his quality of life. This claim is unjustified and hypothetical and is declined.
39. 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 the thumb measure, and as a balance has to be struck, it would be difficult to satisfy all the parties concerned. It must also be borne in mind that life has its pitfalls and is not smooth sailing all along the way (as a claimant would have us believe) as the hiccups that invariably come about cannot be visualized. Life it is said is akin to a ride on a roller coaster where a meteoric rise is often followed by an equally spectacular fall, and the distance between the two (as in this very case) is a minute or a yard. At the same time we often find that a person injured in an accident leaves his family in greater distress, vis- `-vis a family in a case of death. In the latter case, the initial shock gives way to a feeling of resignation and acceptance, and in time, compels the family to move on. The case of an injured and disabled person is, however, more pitiable and the feeling of hurt, helplessness, despair and often destitution enures every day. The support that is needed by a severely handicapped person comes at an enormous price, physical, financial and emotional, not only on the victim but even more so on his family and attendants and the stress saps their energy and destroys their equanimity. We can also visualize the anxiety of the complainant and his parents for the future after the latter, as must all of us, inevitably fade away. We, have, therefore computed the compensation keeping in mind that his brilliant career has been cut short and there is, as of now, no possibility of improvement in his condition, the compensation will ensure a steady and reasonable income to him for a time when he is unable to earn for himself.
40. Mr. Tandale, the learned counsel for the respondent has, further, submitted that the proper method for determining compensation would be the multiplier method. We find absolutely no merit in this plea. The kind of damage that the complainant has suffered, the expenditure that he has incurred and is likely to incur in the future and the possibility that his rise in his chosen field would now be restricted, are matters which cannot be taken care of under the multiplier method.
41. Civil appeal No.3126 of 2000 is allowed in the above term with costs of Rs.50,000/-. It is also clarified that the complainant parents would be entitled to the sum awarded to them by the Commission. CA No.4119 of 1999 is dismissed.
42. Before we end, a word of appreciation for the complainant who, assisted by his father, had argued his matter. We must record that though a sense of deep injury was discernible throughout his protracted submissions made while confined to a wheel-chair, he remained unruffled and with behaved quiet dignity, pleaded his case bereft of any rancour or invective for those who, in his perception, had harmed him.
43. As the complainant is severely handicapped and has appeared in person, we direct that a copy of this judgment be sent to his address, free of cost, under registered cover.
..................J. (B.N. AGRAWAL) ..................J. (HARJIT SINGH BEDI) .............J. New Delhi, (G.S. SINGHVI) Dated: 14th May, 2009 Why the death certificate is necessary. We have to see the following article in this regard.
What is the Origin of the Death Certificate? The World Health Organization (WHO) is a specialized agency of the United Nations, whose overall goal is for the people of all nations to attain the highest possible level of health. To achieve its goals, WHO must understand why people are dying in order to identify ways to improve health and prevent death. The United States is one of 192 member "states" (countries or nations) that form the WHO. As a "signatory" of the WHO, The United States must agree to follow various rules and regulations developed by the WHO. One of the things the WHO does is to develop standardized ways to collect health and cause-of-death information so information from multiple countries may be compared. Thus, each member "state" of the WHO has developed a standard model death certificate that is based on WHO requirements. The National Center for Health Statistics (NCHS, administratively part of the Centers for Disease Control and Prevention, Atlanta, Georgia, but based in Hyattsville, Maryland) publishes a "U.S. Standard Certificate of Death," the most recent version having been approved in 2003. Through a cooperative agreement between the various states and NCHS, states agree to base their individual state death certificates on the U.S. model. In this way, information for different states may be compared, all states collect data in a similar format, and NCHS is then able to prepare national statistics, which can be compared with other countries around the world.
Thus, each state has a standard certificate of death that is required by state law or vital statistics regulations to be used in that state. Each state's death certificate may vary a little from the other states in size and content, but each state does collect information in a format similar to all other states. When a death certificate is officially filed at the county or state level, it is considered to have been "registered." Thus, there are two phases in completing the death certificate: • Certification. Completing the cause and circumstances of death information and having the certificate be signed by the physician, medical examiner, or coroner who serves as the "certifier" of death. • Registration. The process of officially filing the death certificate with the county or state, which is usually done by the funeral director. There are two things that drive the process and make it successful: • Funeral directors must complete their duties to be paid for their services by the family, and part of their duties include filing of the death certificate. This provides an incentive for funeral directors to complete the filing (registration) process. • The National Center for Health Statistics, through the cooperative agreement with the states, pays the states for the death information they provide to NCHS. To be paid, the state must provide the data in an acceptable format, and that format is based on the U.S. Standard Certificate of Death. So, there are incentives to collect death information in a standard format and to get the information filed (registered) with the state so it can be forwarded to the federal level. Importance of the Death Certificate The death certificate records the fact that a given person has died. It is useful to the family to settle the estate, clarify the circumstances of death, and come to closure. It is a permanent record that may also be used in legal proceedings to prove that a person is dead. The death certificate is also a source for local, state, national, and international mortality statistics used for public health purposes and by the government for the planning and funding of programs and research. Further, death certificate data are useful to the medical profession for identifying disease etiologies, evaluating diagnostic or therapeutic techniques, examining medical or mental health conditions that may be found in specific groups of people, and pointing to areas where medical research may have the greatest impact on reducing mortality.
As discussed below, what starts off in the certifier's hands (the death certificate) is passed through many other hands and is used for a multitude of purposes, ultimately at the national and even international levels. It should be self-evident that specific information is more valuable than general information, and that accuracy and completeness is of the utmost importance to the various users of death certificate information.
Physician Responsibilities If death will not be certified by a medical examiner or coroner, it is the responsibility of the attending physician to complete the cause-of-death section of the death certificate. In some states, failure to do so may be a violation of state law or vital records code. Regardless of whether state law requires it, the attending physician has the professional responsibility of completing the death certificate and should not shirk that duty. Completion of the death certificate may be considered as part of the patient's end-of-life care. Some states allow ready access to copies of death certificates, while most do not. Regardless of whether death certificates are regarded as open or closed records, the certifier of death should report the cause of death as objectively, completely, and accurately as possible based on information available at the time.
Physicians also need to be aware of:
• State and local regulations regarding deaths that must be reported to the medical examiner or coroner • How to complete the relevant portions of the death certificate (topic of this book) • How to make the signed death certificate available to the funeral director for filing • How to assist local or state registrars by promptly responding to queries or other inquiries • State or local laws that require a death certificate to be filed within a specified number of days following death (usually 2 to 10 days) • How to file a supplemental report or amendment of the cause of death if autopsy or other information shows the cause of death to be significantly different from what was originally reported on the death certificate • Ways to write cause-of-death statements that communicate the same essential information as a concise clinical history would, while telling the story of the patient's death in a logical, clear, and medically sound sequence (topic of this book) • Applicable state laws regarding death certificates, medical examiners, and coroners We have seen the consent which is almost blank except the signature of a person. There is no endorsement in the consent form about the operation, about its risks and and consequences which are necessary to disclose before the operation either to the patient or to his attendants. So this consent form is also has no value. The consent form for anaesthesia and operation should be separate but here no such consent form has been seen.
Now after considering all the facts and circumstances of this case we are of the opinion that the enquiry report is nothing but seems supporting the treating doctor by going out of way . we cannot trust on this enquiry report because the circumstances are speaking itself that there was negligence on the part of the doctors. The learned District Consumer Forum did not go through all these aspects. The learned Forum did not considered the fact that what was the need of the operation on the same day. The previous reports are not satisfactory. In this case the operation was performed at 11:45 PM on the date of admission of the patient and he expired on 06.06.2008 at 00.45 AM meaning thereby that the patient expired within an hour after the operation which shows grave negligence on the part of the doctor and also proves that something unusual has been happened during the Laproscopy. Because in Laproscopy the patient did not expire within such a short duration. So we are of the firm opinion that something unusual has happened during the laparoscopic procedure which resulted in the death of the patient within an hour. The judgement of the learned Forum is not up to the mark and is liable to be set aside. The appellants/complainant is entitled to get ₹ 8,17,650/- towards medical fees, lab fee and compensation with interest from the respondent no.1/opposite party no.1. The appeal is decided accordingly.
ORDER The appeal is allowed. The impugned judgment and order dated 10.08.2017 passed by the Learned District Consumer Forum, Faizabad in complaint case no.77/2009, Rakesh Kumar Srivastava Vs. Dr Vinod Kumar Gupta & Anr. is set aside.
The opposite party no.1 Dr. Vinod Kumar Gupta is directed to pay ₹8,17,650/- to the complainant towards medical fee, cost of case, compensation for mental torture and harassment with interest at a rate of 12% per annum from 06.06.2008 (the date of death of the patient) if paid within 30 days from the date of judgment of this appeal otherwise the rate of interest shall be 15% from 06.06.2008 till the date of actual payment.
Regarding relief 'Sa' of the complaint, the opposite party is directed to pay Rs.5,00,000.00 to the complainant with interest at a rate of 12% per annum from 06.06.2008 (the date of death of the patient) if paid within 30 days from the date of judgment of this appeal otherwise the rate of interest shall be 15% from 06.06.2008 till the date of actual payment.
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.
(Sushil Kumar) (Rajendra Singh) Member Presiding Member Judgment dated/typed signed by us and pronounced in the open court. Consign to record. (Sushil Kumar) (Rajendra Singh) Member Presiding Member Dated 22.2.2024 JafRi, PA I. Court 2 [HON'BLE MR. Rajendra Singh] PRESIDING MEMBER [HON'BLE MR. SUSHIL KUMAR] JUDICIAL MEMBER