State Consumer Disputes Redressal Commission
The Central Hospital, Dr. Arun ... vs Shri Jitendra Pandurang Bhayande, And ... on 10 October, 2017
A/14/23N38N108
BEFORE THE HON'BLE STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, MAHARASHTRA, MUMBAI
Appeal No. A/14/23
(Arisen out of order dated 29/11/2013 passed in complaint No. 312/2008 by
District Thane)
Smt.Surekha Arun Sankhe
Nurse, Central Hospital
Ulhasnagar - 421 003. ...........Appellant (s)
Versus
1. Jitendra P. Bhayade
Residing at OM Pushpanjali CHS Ltd.
1st floor, Room No.5, Opp. Chhatri Bungalow,
Chikanghar, Kalyan (W), Dist. Thane.
2. The Central Hospital
Ulhasnagar - 421 003,
Dist. Thane.
3. Dr.Arun Pole [In Charge]
The Central Hospital
Ulhasnagar - 421 003,
Dist. Thane.
4. Dr.Vilas S. Dongre
Orthopedic Surgeon
The Central Hospital
Ulhasnagar - 421 003,
Dist. Thane. ............Respondent (s)
Appeal No. A/14/38
(Arisen out of order dated 29/11/2013 passed in complaint No. 312/2008 by
District Thane)
1. The Central Hospital
Through Dr.Arun Shivajirao Virdhe
(Civil Surgeon), Central Hospital,
Ulhasnagar -3, Dist. Thane.
2. Dr.Arun Pole [In Charge]
The Central Hospital
Ulhasnagar-3, Dist. Thane. ...........Appellant (s)
Versus
1. Jitendra Pandurang Bhayande
Residing at OM Pushpanjali CHS Ltd.
1st floor, Room No.5, Opp. Chhatri Bungalow,
Chikanghar, Kalyan (W), Dist. Thane.
............Respondent (s)
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A/14/23N38N108
2. Dr.Vilas S. Dongre
Orthopedic Surgeon
The Central Hospital
Ulhasnagar -3, Dist. Thane.
3. Smt.Surekha Arun Sankhe
Nurse, Central Hospital
Ulhasnagar-3., Dist. Thane.
............Respondent (s)
Appeal No. A/14/108
(Arisen out of order dated 29/11/2013 passed in complaint No. 312/2008 by
District Thane)
Dr.Vilas S. Dongre
Orthopedic Surgeon
The Central Hospital
Ulhasnagar, Dist. Thane.
Presently residing at
305, Shri Gokuldham Complex,
Ambedkar Chawk, Katrap,
Badlapur (E), Thane. ...........Appellant (s)
Versus
1. Jitendra Pandurang Bhauade
Residing at OM Pushpanjali CHS Ltd.
1st floor, Room No.5, Opp. Chhatri Bungalow,
Chikanghar, Kalyan (W), Dist. Thane.
2. The Central Hospital
Ulhasnagar -3, Dist. Thane.
3. Dr.Arun Pole [In Charge]
The Central Hospital
Ulhasnagar-3, Dist. Thane.
4. Smt.Surekha Arun Sankhe
Nurse, Central Hospital
Ulhasnagar -3, Dist. Thane. ............Respondent (s)
BEFORE:
Justice A.P. Bhangale PRESIDENT
A. K. Zade MEMBER
For the Mr.Bhaskar Yogi, Advocate i/b.
Appellant: Mr.Uday Wavikar, Advocate for
appellant in A/14/23.
Mr.Suresh Barne, Advocate for
appellant in A/14/38.
Mr.Ajay Pawar, Advocate for appellant
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A/14/23N38N108
in A/14/108 and for respondent No.4 in
A/14/23.
For the Mr.Rajiv Thakur, Advocate for
Respondent: respondent No.1 in all appeals.
ORDER
Per Justice Mr.A.P. Bhangale, Hon'ble President Mr.Ajay Pawar, Advocate for appellant in A/14/108 and for respondent No.4 in A/14/23. Mr.Suresh Barne, Advocate for appellant in A/14/38. Mr.Bhaskar Yogi, Advocate i/b. Mr.Uday Wavikar, Advocate for appellant in A/14/23. Mr.Rajiv Thakur, Advocate for respondent No.1 in all appeals. Heard.
2. These appeals are preferred by appellant-Smt.Surekha Arun Sankhe, Nurse, who had administered injection to the patient, by Dr.Vilas S. Dongre (Attending Doctor) and by the Central Hospital along with Dr.Arun Pole. These appeals questioned validity and legality of the judgment and award dated 29/11/2013 passed in consumer complaint No.312/2008 decided by the District Forum, Thane, whereby the Learned District Forum partly allowed the complaint No.312/2008 and held that there was medical negligence on the part of Smt.Surekha Arun Sankhe, who was Nurse in the Central Hospital, Ulhasnagar, as a result of administering injection to the patient on his arm, there was injury to radial nerve and hand of the complainant become paralysed. Thus, the Learned District Forum held that there was deficiency in service while administering medical treatment to the complainant and on account of medical expenses, mental and physical harassment and consequent absence of the complainant from his employment, he was awarded sum of Rs.10 Lakhs payable within three months from the date of order i.e.29/11/2013 and in default to pay interest @ 6% p.a. till realisation of the amount.
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3. Briefly stated facts of the case are that Shri Jitendra Pandurang Bhayade filed a consumer complaint on the ground that he is a Police Constable attached to Railway Police Station at Kalyan. He had approached the Central Hospital, Ulhasnagar. According to him as a Government employee he was entitled to get free of charge medical treatment. However, for registration he had paid sum of Rs.5/- for which receipt was issued. According to complainant he was having wrist pain as consequence of injection administered which was as a result of prescription of some medicine by opponent No.3-Dr.Vilas Dongare which intra-muscular injection was administered by the Nurse-Smt.Surekha Arun Sankhe. Complainant after administration of injection felt that his left hand become numb and experienced as if he received an electric current in his arm. He had complained to Nurse-Smt.Surekha Arun Sankhe about severe pain and abnormality noticed in his left arm. In consequence, sudden critical condition was developed with no signs of improvement. According to the complainant he was examined by Resident Medical Officer Dr.Bharati Patil, who had described physiotherapy treatment which he received at KEM Hospital without any fruitful result. According to him opponents including Hospital were responsible for deficiency in service and medical negligence which resulted in injury to the complainant. While receiving medical treatment, he had to remain absent at his employment even without pay and was unable to discharge his duties efficiently and effectively as possible before the incident. In the result, complainant suffered a lot. He had also lodged F.I.R. dated 22/10/2007 alleging criminal negligence and had called upon the opponents by legal notice dated 17/04/2008 to compensate him. Complainant prayed for compensation in the sum of Rs.15,71,687/- with interest @ 18% p.a. till actual payment is made.
4. Opponents had contested the complaint on the ground that there was Page 4 of 8 A/14/23N38N108 free of charge medical treatment and as such there was no cause of action as against Government Hospital for the complainant. Complainant had also relied upon the medical papers regarding medical expenses incurred by him. We are informed that the complainant continued to be handicapped as a result of administration of injection and had also lost opportunity of promotion. It appears that during pendency of the complaint proceeding, Confidential Report of Board of Doctors from Sir J.J. Group of Hospitals was also obtained which is dated 30/09/2008 which indicate possibility of 25% physical disability due to upper limb monoparesis as a result of radial nerve injury due to injection requiring long medical treatment to overcome disability. Regarding opinion as to injection administration according to Board of Doctors, if Nurse had considered the neuroanatomy while administering injection normally and if there is abnormal position of radial nerve of left arm of injured, then there is possibility of such disability though the Board could not specifically gave opinion as to whether injection was administered at wrong spot of arm. Considering expert opinion, we also express view that the patient required medical treatment under supervision but on account of nurse administering injection he suffered injury to radial nerve of the left arm. Opinion of the Board of Directors was signed by Dr.Yogita Walavalkar and others. Board of Sir J.J. Group of Hospitals appears to have issued Certificate dated 24/10/2007 that complainant had 50% disability in the left arm of the complainant though later on Expert Committee mentioned only 25% disability. Main objection of the award impugned is that in the Government Hospital for government employees and their families gives free of charge medical treatment and when service is free of charge, person receiving free treatment is not a "consumer" within meaning of Section 2(1)(d) of Consumer Protection Act, 1986. To find support to this contention, opponent placed reliance upon judgment of Page 5 of 8 A/14/23N38N108 Hon'ble Apex Court in the case of Indian Medical Association V/s. V.P. Shantha & Ors., reported in III (1995) CPJ 1 (SC), in which Hon'ble Apex Court had observed that - "the services rendered at a Government Hospital or Health Centre or Dispensary where services are rendered on payment of charge or rendered free of charge to other persons availing such services would fall within ambit of expression "Service" as defined in Section 2(1)(o) of Consumer Protection Act, 1986 irrespective of the fact that service is rendered free of charge to persons who do not pay for such service. Free service would also be "service" and the recipient a "consumer" under the Consumer Protection Act, 1986. (Vide Para 56(10) of the judgment)". Said ruling was also considered later by Hon'ble National Commission in the case of Royapettah Government Hospital V/s. R. Lakshmi, reported in II (2016) CPJ 639 (NC), wherein by upholding the impugned order passed by Tamil Nadu State Consumer Disputes Redressal Commission, Chennai, Hon'ble National Commission disagreed with the argument that patient in the Government Hospital was not a consumer. After making reference to judgement in Indian Medical Association (mentioned supra), Savita Garg's v/s. Director, National Heart Institute, reported in IV (2004) CPJ 40 (SC) and V. Krishnakumar V/s. State of Tamil Nadu & Ors., reported in III (2015) CPJ 15 (SC) holding that the Government was responsible for medical negligence caused in the Government Hospital.
5. It appears from Royapettah Government Hospital ruling that in cases on the basis of principle of res-ipsa-loquitur, when the opponent treated the patient without proper care (such as administering injection, in the instant case by nurse without bothering about consequences if injection is wrongly administered), then such a irresponsible attitude or failure to take duty of care, by a person concerned who administered the injection can surely primarily responsible for medical negligence on the ground that Page 6 of 8 A/14/23N38N108 principle res-ipsa-loquitur due to administration of injection physical disability to the extent of 25 to 50% was caused as a result. In the instant case, according to the complainant, registration fee was paid in the sum of Rs.5/- to the Government Hospital. In such case though as a Government employee or employee in the Police Department he was entitled to receive medical treatment free of charge but under supervision of competent doctors. It was not without any consideration. Be that as it may. Registration charge was accepted. In such cases, when patient suffered injury as a result of wrong administration of injection by a nurse without supervision of doctor not only principle of res-ipsa-loquitur is attracted but also once the complainant has discharged initial onus of making out a prima-facie case of negligence against the Hospital or Nurse concerned, the onus is shifted upon the Hospital or the Nurse concerned to satisfy the District Forum that there was no lack of adequate care and caution. Looking to this legal position, although plethora of rulings are cited before us including Consumer Unity & Trust Society, Jaipur V/s. The State of Rajasthan & Ors., reported in I (1992) CPJ 259 (NC), Major Singh V/s. State of Punjab & Ors., in Revision Petition No.4734 of 2012 dated 05/11/2014 (NC). We are guided by latest ruling in Royapettah Government Hospital V/s. R. Lakshmi, which is directly on the point that the Government Hospitals are also liable for medical negligence and patient in the Government Hospital is a "consumer". Thus, any action amounting to irresponsible attitude and failure in duty to take care resulting in grievous injury to the patient enables him to complain on the ground that he is a consumer within meaning of Section 2(1)(d) of Consumer Protection Act, 1986 and can seek compensation particularly when there was responsibility on the basis medical negligence caused to the patient in the Government Hospital.
6. In the instant case, Nurse who administered injection resulting in Page 7 of 8 A/14/23N38N108 injury and the Central Hospital vicariously responsible for medical negligence that caused physical disability to the patient which was assessed between 25to50% were rightly held liable. Considering these reasons and upon perusal of the impugned judgment and award, we think that no error was committed by the Learned District Forum to assess medical negligence on the part of Nurse who administered injection. However, in our view, Nurse-Smt.Surekha Arun Sankhe, who actually administered injection and the Central Hospital vicariously are responsible to answer the award and to comply with the same. Opponent Nos.2&3 were not in picture when injection was administered by opponent- Smt.Surekha Arun Sankhe. Therefore, opponent Nos.2&3 could not have been held responsible for medical negligence. We therefore modify the award for exonerating opponent No.2-Dr.Arun Pole and opponent No.3- Dr.Vilas S. Dongre by allowing their appeals. They shall be exonerated from compliance of the award. The award is however confirmed against opponent No.1-The Central Hospital, Ulhasnagar and opponent No.4- Smt.Surekha Arun Sankhe, who shall comply with the award passed by the Learned District Forum. Appeals are disposed of accordingly by confirming award as against the Central Hospital-opponent No.1 and Smt.Surekha Arun Sankhe-opponent No.4. They shall be liable to comply with the award jointly and severally. We dismiss the appeals filed by opponent Nos.1&4 with costs quantified in the sum of Rs.20,000/- payable by opponent Nos.1&4 to the complainant. Copies of the order be furnished to the parties.
Pronounced Dated 10th October 2017.
[ Justice A.P. Bhangale ] PRESIDENT [ A. K. Zade ] MEMBER dd.
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