National Consumer Disputes Redressal
Manager, Parmarth Mission Hospital vs Yudh Vir Chauhan on 22 April, 2013
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 744 OF 2007 (Against the order dated 23.10.2007 in CC No. C-375/1998 of the Delhi State Consumer Disputes Redressal Commission) Manager Parmarth Mission Hospital 23/7, Shakti Nagar Delhi-110007 Appellant Versus Yudh Vir Chauhan S/o Shri Shiv Raj Singh R/o 1288, Block G and JU Pritampura, Delhi Respondent FIRST APPEAL NO. 16 OF 2008 (Against the order dated 23.10.2007 in CC No. C-375/1998 of the Delhi State Consumer Disputes Redressal Commission) Yudh Vir Singh Chauhan Son of Shri Sheoraj Singh Resident of 128-B, Block G&JU Pitam Pura, Delhi-110 007 Appellant Versus Manager Parmarth Mission Hospital 23/7, Shakti Nagar Delhi-110088 Respondent BEFORE: HON'BLE MR. JUSTICE ASHOK BHAN, PRESIDENT HON'BLE MRS. VINEETA RAI, MEMBER For Parmarth Mission Hospital : Mr. Neeraj Dutt Gaur, Advocate For Mr. Yudh Vir Chauhan : Mr. J.K. Bhola, Advocate Pronounced 22nd April, 2013 ORDER
PER VINEETA RAI, MEMBER
1. Being aggrieved by the order of the Delhi State Consumer Disputes Redressal Commission (hereinafter referred to as the State Commission) in Complaint No. C-375 of 1998, two cross appeals have been filed.
While First Appeal No. 744 of 2007 has been filed by Manager, Parmarth Mission Hospital, Opposite Party, First Appeal No. 16 of 2008 has been filed by Shri Yudh Vir Singh Chauhan, Original Complainant before the State Commission seeking enhanced compensation. Since the facts and the parties in both appeals are common/similar arising out of the same consumer complaint, it is proposed to dispose of these appeals by one common order by taking the facts from First Appeal No. 744 of 2007. The parties will be referred to in the manner in which they were referred to in the complaint i.e. Shri Yudh Vir Singh Chauhan as Complainant and Parmarth Mission Hospital as Opposite Party.
2. In the complaint against Opposite Party-Hospital, Complainant had stated that his wife (hereinafter referred to as the Patient), who had earlier been admitted in the Opposite Party-Hospital and delivered two children in the same Hospital, was admitted for delivery in the Opposite Party-Hospital on 22.05.1997 and gave birth to a male child through cesarean section. Since there was infection in the uterus, this was also removed. While performing the surgery Doctors of the Opposite Party-Hospital negligently left a sponge like specimen of 17 x 17 Cm. and a tag of 11 Cm. in the abdomen of the Patient. Since the Opposite Party-Hospital did not have basic requirements of a nursery and other facilities, Complainant was asked to take his wife and new born child to Jaipur Golden Hospital, which was 20 Kms. away and due to this reason the infant expired after three days. After 10 days of the surgery, Patient experienced acute stomach pain and she visited the Opposite Party-Hospital number of times and also paid fees for the same but the problems persisted. On 25.02.1998 when the pain became unbearable, Patient was admitted to the Opposite Party-Hospital where Doctors asked her to undergo ultrasound and x-rays at Apollo X-Ray Centre, Roop Nagar, Delhi and also at Anant Imaging Centre at Ashok, Vihar, Delhi. However, the disease could not be diagnosed and, therefore, Patient was advised to undergo a surgery in the Opposite Party-Hospital. Although she was prepared for the same, the concerned Doctor declined the surgery on the ground that his mother was unwell. Patient continued her treatment as advised by the OP-Hospital and spent approximately Rs.2.00 Lakhs, which she paid to Opposite Party-Hospital, and also Rs.50,000/- on the x-rays and other diagnostic tests as per the advice of the Doctors in the Opposite Party-Hospital. On 09.05.1998 Complainant was told that his wife had Australia Antigen and he was advised by Opposite Party-Hospital to get his wife admitted in some other hospital for treatment. She was, accordingly, admitted in Bara Hindu Rao Hospital where after undergoing tests Doctors conducted a surgery during which a sponge like specimen and a tag in the stomach of the Patient were removed. Patient died on 26.05.1998. Complainant made a complaint to the Lt. Governor as also to the Police Authorities but because of the influence of the Opposite Party-Hospital, satisfactory action on the same was not taken. Complainant, therefore, issued a legal notice to the Opposite Party-Hospital, to which there was no response. Complainant, therefore, filed a complaint before the State Commission on grounds of medical negligence and deficiency in service against the Opposite Party-Hospital and requested that the Opposite Party-Hospital be directed to pay him (i) Rs.10.00 Lakhs as compensation for the loss caused to him and his two minor children; (ii) Rs.2.50 Lakhs spent on medical treatment; (iii) Rs.2.50 Lakhs for deficiency in service and Rs.11,000/- as litigation expenses. Thus, a total amount of Rs.15.11 Lakhs was sought as compensation.
3. Opposite Party on being served filed a written rejoinder denying that there was any medical negligence or deficiency in service on their part. Patient had come to the Hospital on 22.05.1997 in a serious condition and though this was a high risk pregnancy, all attempts were made to save the child and the mother. A cesarean section was conducted and a premature child was delivered, who unfortunately passed away in another hospital where he had been transferred because he required special nursery care which was not available in the Opposite Party-Hospital. Further, since relatives of the Patient were on the staff of Opposite Party-Hospital, special medical attention and care was given to the Patient. Since there was profuse bleeding which could not be controlled, after taking opinion from other professional colleagues, the uterus was also removed in the interest of Patients health. She was discharged in perfect condition with no complaints for approximately nine months, whereafter Patient visited the Opposite Party-Hospital with complaint of abdominal pain for which she was advised investigations. She was diagnosed as sub acute intestinal obstruction cause?, adhesion?, tuberculosis. A surgery was planned on 09.05.1998 but was deferred since Patient tested positive for Australia Antigen, which is a very dreaded disease and which affects the liver and can cause death. There was also high risk of transmission of this disease to the persons conducting the surgery. Patient was, therefore, put on anti-tuberculosis and other supportive medicines and after she showed improvement, she was discharged in a satisfactory condition on 18.05.1998. It was contended that in fact Patient died at Bara Hindu Rao Hospital because during the surgery conducted there the ileum got perforated. There was no medical negligence or deficiency in service in the treatment of the Patient at Opposite Party-Hospital and, therefore, the complaint being without any basis may be dismissed.
4. During the pendency of the complaint before the State Commission, the Investigating Officer, dealing with the criminal case instituted by the Complainant against the Opposite Party-Hospital, requested State Commission for setting up of a medical board for expert opinion, which was set up vide orders of the Government of NCT of Delhi and its opinion made available to the State Commission and which inter alia concluded that the presence of the foreign objects was responsible for Patients medical problems and subsequent death.
5. The State Commission after considering the evidence on record, including the opinion of the medical board concluded that there was a clear case of medical negligence on the part of Opposite Party-Hospital since a foreign body like sponge tag was left in the abdomen of the Patient during the surgery on 22.05.1997 at Opposite Party-Hospital. However, it did not accept the opinion of the medical board that the presence of the foreign body was the cause of the death.
In this connection, the relevant observations of the State Commission are reproduced :
17. It is a case where there is clear negligence of having left foreign body like sponge tag that might have been causing recurring pain but we refuse to accept that the presence of foreign body was the direct cause of death. It might have caused some problem in the form of some infection and other problem but in no way this could have contributed to the direct cause of death which at the first instance was found to be cardiac arrest.
18. In our view there is no convincing evidence to show that the presence of foreign articles like sponge and tag was direct result of the death. It is not understandable as to how board reached to the conclusion while giving answer to the first question as to the cause of death being cardiac arrest.
However, the opinion in respect of other queries was that the case of death might have accelerated by the presence of sponge or tag like foreign body which might have caused some infections.
The State Commission, therefore, awarded compensation of only Rs.50,000/- and Rs.10,000/- as litigation costs by stating that taking an overall view of the matter, particularly the long gap between first operation and the second operation during which period the Patient did not suffer any major problem except recurring pain in the abdomen and because she died not due to the sponge or tag left in her body but due to cardiac arrest.
6. Being aggrieved by the finding of medical negligence/deficiency in service and the lesser compensation, present First Appeals No. 744 of 2007 and 16 of 2008 have been filed by the Opposite Party-Hospital and the Complainant respectively.
7. Learned Counsel for both parties made oral submissions.
8. Learned Counsel for Opposite Party-Hospital contended that the State Commission erred in finding it guilty of medical negligence in the absence of any evidence that the foreign material found in the body of the Patient had been left there negligently during surgery at the Opposite Party-Hospital. In this connection, it doubted the finding of the Bara Hindu Rao Hospital on the ground that that Hospital did not preserve and make available for inspection the foreign body i.e. the sponge like substance purportedly recovered from the Patients body during the operation conducted on 26.05.1998 at Bara Hindu Rao Hospital. Apart from this, Bara Hindu Rao Hospital did not conduct any post mortem and the death certificate clearly mentioned that the cause of death was cardiac arrest. Under these circumstances, the State Commission erred in finding the Opposite Party-Hospital guilty of medical negligence. If at all medical negligence had to be attributed, it would be to specific Doctors and the Opposite Party-Hospital cannot be burdened with the same. Further, since Opposite Party-Hospital is a charitable institution charging very nominal fees from its patients, Complainants contention that he had spent over Rs.2.00 Lakhs in the Patients treatment is baseless.
9. Counsel for the Complainant on the other hand stated that as per the directions of the State Commission, Government of NCT of Delhi had set up a medical board which opined that since no surgical operation had been conducted between the operation on 22.05.1997 performed at Opposite Party-Hospital and the operation on 26.05.1998 performed at Bara Hindu Rao Hospital, it was clear that the foreign body had been left during the first surgery at Opposite Party-Hospital. Counsel for the Complainant further pointed out that the State Commission erred in disbelieving the opinion of the medical board which clearly concluded that the death occurred because of the foreign substance left in the body of the Patient during the surgery at Opposite Party-Hospital. The State Commission has given no cogent reasons for disagreeing with the opinion of medical experts. Counsel for the Complainant reiterated that over Rs.2.00 Lakhs had been spent on medical treatment of the Patient at Opposite Party-Hospital, where fees charges was about Rs.2000/- per day.
Keeping in view the above facts, including the conclusion that there was medical negligence on the part of Opposite Party-Hospital, the State Commission erred in granting only a paltry compensation.
10. We have heard learned counsel for parties and have also carefully gone through the evidence on record. Patients admission in Opposite Party-Hospital on 22.05.1997 where she underwent two surgeries is not in dispute. It is also an admitted fact that Patient experienced abdominal pain for several months thereafter, for which she underwent treatment in Opposite Party-Hospital and a surgery conducted at Bara Hindu Rao Hospital confirmed that a sponge and a tag were found in her abdomen.
The State Commission as the first Court of fact had also concluded that even though the specimens were not preserved by Bara Hindu Rao Hospital, there was no reason to disbelieve the report of Bara Hindu Rao Hospital in this connection. Opposite Partys contention that the foreign body could have been left during some other procedure in the intervening period does not inspire much confidence since there is no evidence that Patient had undergone any other surgical procedure between the first surgery at Opposite Party-Hospital and the second one at Bara Hindu Rao Hospital, where the foreign objects were detected. Apart from this, the medical board of Doctors set up by the Government of NCT of Delhi on direction of the State Commission after going through the relevant records and papers had reached an unequivocal conclusion that the death of the Patient was because of presence of foreign body in her abdomen and in view of this clear opinion of medical experts, we are unable to comprehend why the State Commission without discussing or referring to any other evidence to the contrary concluded that the foreign body in the abdomen was not the cause of Patients death. It may also be mentioned here that Cardiac Arrest is a term commonly used to explain the reason for death but this observation in the death certificate cannot be used to preclude the causes that led to cardiac arrest in this case the foreign body left in the Patients abdomen.
11. The principle of what constitutes medical negligence is now well established in a series of judgments of the Honble Supreme court, including in Jacob Mathew Vs. State of Punjab & Anr. [(2005) 6 SCC 1] and Achutrao H.Khodwa Vs. State of Maharashtra [AIR 1996 SC 2377], wherein it has been inter alia observed that a medical practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise reasonable degree of care (emphasis provided). Honble Supreme Court in Achutrao H. Khodwa (supra) while discussing this principle in the context of the above case concluded that since a foreign body was left in the system during the surgery, it clearly indicated that reasonable degree of care was not taken and, therefore, it amounted to medical negligence. In the same judgment, the Honble Supreme Court has also held that the State must be held vicariously liable once it is established that the death was caused due to negligent act of its employees. Following the above two principles in the instant case, it is clear that the Opposite Party-Hospital is guilty of medical negligence on both counts.
12. The State Commission had while concluding medical negligence awarded a compensation of Rs.50,000/- on the ground that though medical negligence had been established, it was not the direct cause of the Patients death.
We have earlier in the order concluded that in view of the opinion of medical experts, we are not in agreement with this part of the order of the State Commission. Under the circumstances, there is adequate justification for enhanced compensation. Considering the fact that a young woman of 27 years had died leaving behind her two minor children as also her husband, thus, depriving them of the care and company of a mother and spouse, which is admittedly an invaluable loss for them, we are of the view that an enhanced compensation of Rs.4.00 Lakhs would be reasonable and justified in the instant case.
13. To sum up, First Appeal No.744 of 2007 filed by Opposite Party-Hospital is dismissed. In respect of First Appeal No. 16 of 2008, we partly allow the same and partially modify the order of the State Commission by enhancing the compensation from Rs.50,000/- to Rs.4,00,000/-. Opposite Party-Hospital is directed to pay this amount alongwith litigation costs of Rs.10,000/- to the Complainant within a period of 12 weeks.
14. Both the present first appeal stands disposed of on the above terms.
Sd/-
(ASHOK BHAN, J.) PRESIDENT Sd/-
(VINEETA RAI) MEMBER Mukesh