State Consumer Disputes Redressal Commission
N.K. Srivastava vs Sarvodya Hospital & Trauma Center on 25 November, 2013
IN THE STATE COMMISSION : DELHI (Constituted under Section 9 clause (b)of the Consumer Protection Act, 1986 ) Date of Decision: 25.11.2013 Case No. FA-429/07 (Arising from the order dated 24.5.2007 passed in Complaint Case No. 55/2005 by the District Consumer Forum-II, Udyog Sadan, C-22 & 23, Institutional Area Behind Qutub Hotel, New Delhi.) N.K. SRIVASTAVA - APPELLANT B-962, MIG DDA Flats, Loni Road, Shahdera, Delhi Versus 1. SARVODYA HOSPITAL & TRAUMA CENTER - RESPONDENTS Through its Director, 342, Sector-4, Vaishali, Ghaziabad. 2. SAFDARJUNG HOSPITAL Through its Medical Superintendent, New Delhi. 3. UNITED INDIA INSURANCE CO. LTD., 54, Janpath, Cannaught Place, New Delhi. CORAM : S.A. SIDDIQUI - MEMBER (JUDICIAL) S.C. JAIN - MEMBER 1. Whether reporters of local newspapers be allowed to see the judgment? yes 2. To be referred to the Reporter or not? yes S.A. SIDDIQUI (ORAL) JUDGEMENT
1. This appeal has been filed by the Complainant/Appellant under Section 15 of the Consumer Protection Act, 1986 against the judgment and order dated 24.5.2007 passed by DCDRF-II Udyog Sadan, C-22 & 23, Institutional Area Behind Qutub Hotel, New Delhi, in Complaint Case No. 55/2005 N.K. Srivastava Vs. Sarvodya Hospital and Trauma Center and Ors.
2. Relevant facts leading to the filing of this appeal are described below:
(a) Wife of the complainant/appellant was expecting a baby. The complainant got attracted by the Respondent-1, Sarvodya Hospital and Trauma Center, Vaishali, Gaziabad as it exhibited itself having 25 bedded Hospital with Nursery ICU facility, which was necessary for managing delivery of a pre-matured baby of about 8 months. He visited to get his wife medically examined by the doctors of this Hospital and started taking medical care and advice from Respondent-1 Hospital against payment of its charges. The complainant was told that it was a case of pre-mature delivery of about 8 months and the Hospital was well equipped of facility of Nursery ICU to handling the delivery of pre-mature baby. The complainants wife was admitted in this Hospital on 9.3.2004 at about 5.00 a.m. and delivered a male baby at about 8 a.m on the same date i.e. 9.3.2004 for which Respondent-1 charged Rs. 25,000/- from the complainant. The complainant was also compelled to bear additional expenses on one pretext or the other. The newly born baby was keeping good health and required urgent need of Nursery, ICU but the Respondent-1 informed the complainant/appellant that they do not have Nursery ICU facility at present.
It was in the process of development and they, therefore, referred the baby to Respondent-2, Safdarjung Hospital, which was well equipped to handle such cases.
3. The complainant/appellant was stunned and felt cheated. Respondent-1 hurriedly arranged a Maruti Van and mother and child were taken to Respondent-2 Hospital. They reached Safdarjung Hospital, Respondent-2 around 12 Noon and was registered at their OPD registration No. 33492 dated 9.3.2004 showing a male baby of 5 hours. The baby was admitted and was referred to Ward No. 20. The attending Doctor of Ward No. 20 remarked on the OPD Card that Nursery facility not available so not willing to admit (Ex.CW-1/4), though Respondent-2 had Nursery ICU facility specially for babies aged upto 4 weeks with the necessary ventilators required for these babies. The newly born baby needed the facility of Nursery ICU, which was available in Respondent-2 Hospital but they arrogantly and arbitrarily did not provide this facility to the complainants baby. However, the newly born baby was admitted by the Respondent-2 in General Ward No. 18, which was not meant at all for newly born babies. It was alleged that due to non-availability of immediate ICU Nursery facility, the newly born baby developed infection in Ward No. 18 and was kept admitted in serious condition. Gradually, the child condition deteriorated so the baby was shifted to General ICU, which was again not meant for newly born babies. In General ICU, all types of patients of every age with every type of disease were admitted and on account of this, the infection further increased. All efforts of the complainant/appellant to admit the baby in Nursery ICU instead of Ward No. 18, yielded no result and the baby finally expired on 25.4.2004 due to gross negligence of both Respondent-1 & 2. Thereafter, the complainant had no option but to file a complaint for a direction to the OPs to refund Rs. 40,000/- charged by the OP-1/Respondent-1 and pay compensation of Rs. 10 Lacs and the cost of litigation.
4. In their defence, OP-1 pleaded that patient was brought to the Hospital in a very critical and life threatening condition on 9.3.2004 at 5.00 a.m. The complainant and his wife themselves were negligent in as much as wife of the complainant had avoided medical consultation for complete seven days, even knowing the fact that she was having leaking p/v with bad obstetric history. Had the complainant and his wife been vigilant keeping in view the history of leaking p/v seriously and had admitted the patient in the initial stage in Respondent-1/OP-1 Hospital or in other Hospital, the result may have been different. In the interest of the patient, the patient was hospitalized immediately and delivery was conducted with the help of surgical procedure (LSCS) successfully by the Gynecologist. A pre-mature (aged about 30 weeks) male baby was delivered at 8.00 a.m. on 9.3.04. The newly born baby was managed as per necessary requirements, when he was in most need and then after preparing requisite documents was shifted to Respondent-2 Hospital in well equipped ambulance having necessary equipments and medication. The baby was shifted to casualty of Safdarjung Hospital at 9.50 a.m. on 9.3.2004.
There was no deficiency much less medical negligence committed on the part of the Hospital or doctors of Respondent-1 Hospital.
5. The Respondent -2 Hospital in their defence stated that there was nothing like Nursery ICU at the premises of Respondent-2 Hospital. The patient was admitted in ward No. 20 as the patient was brought on the day of ward No. 20. The patient was provided best possible treatment free of charge. He remained in the Hospital from 9.3.04 to 25.4.2004 and was treated in best possible manners.
There was no deficiency of any kind on the part of Respondent-2 Hospital. Therefore, Respondents/OPs prayed for dismissal of the complaint.
6. The parties led evidence in support of their cases and Ld. DCDRF-II through its impugned judgment and order dated 25.4.2007 dismissed the complaint and hence this appeal.
7. The appeal was filed on the ground that Honble District Forum without considering the evidence on record and totally ignoring the written arguments filed by the complainant passed an erroneous order which was liable to be set aside. Ld. District Forum while passing the impugned judgment and order dated 25.4.2007 failed to exercises its jurisdiction and acted in a highly arbitrarily and malafide manner. The impugned judgment and order was illegal and erroneous and was liable to be set aside.
8. After admission of the appeal, notices were issued to the Respondents, Respondent-1 & 2 filed separate replies and the case against Respondent-3 proceeded exparte.
9. We have heard Sh. Dinesh Kumar, Counsel for the appellant, Sh. Arvind Jha, Counsel for the Respondent-1 and Sh. Rajesh Kumar Maurya, Counsel for the Respondent-2. We have also gone through the evidence led by the parties and written arguments filed by the appellant/complainant and the case law filed.
10. Appellant/complainant relied upon the following rulings:
(a) Dr. M. Radhakrishna Murthy & Anr. Vs. Parakulam Elishama Babu II(2002)CPJ193
(b) Krishna Sharma Vs Raj Hospital & Ors III (2005) CPJ 314
(c) Shahul Hameed & Anr Vs. M/s Apollo Hospital Enterprises & Ors. II (2002) CPJ 189
(d) Devender Kumar Sharma & Ors Vs. Post Graduate Institute of Medical Education and Research & Ors I(2002) CPJ 211 (e ) Sai Mahima Hospital Vs Anil Rana & Ors 1(2207) CPJ 338
11. It was argued on behalf of the Ld. Counsel for the appellant/complainant that Respodent-1, Sarvodaya Hospital, misrepresented that it was a 25 bedded Hospital with Nursing and ICU facilities. On the basis of this false representation/projection, the appellant/complainant got his wife admitted in this Hospital on 9.3.2004 at 5 a.m for expected delivery. A male baby was delivered at 8.00 a.m on 9.3.2004 itself. Respondent-1 Hospital charged Rs. 25,000/-. The Hospital further extracted Rs. 15,000/- applying coercion. They detained the mother of the newly born child and did not allow her to accompany the baby or to join the baby immediately. They further told the complainant/appellant that baby needed immediate Nursery ICU facility, which was not available at Respondent-1 Hospital.
They referred the newly born to Respondent-2, Safdarjung Hospital where Nursery ICU facilities were available.
12. The appellant/complainant along with the child reached Respondent-2 Hospital emergency ward around noon and got registered at OPD No. 33492 on 9.3.2004 showing male baby of 5 hours with the remark at the OPD card that patient needs Nursery ICU. Referred to Ward No. 20 (CW1/4). Attending Doctor at Ward No. 20 recorded that Nursery ICU facility not available, so not willing to admit. It was emphasized by the counsel for the appellant/complainant that as a matter of fact Respondent-2 Hospital had Nursery ICU facility for baby aged upto 4 weeks and necessary ventilators required only in Nursery ICU as reported in Newspaper dated 19.7.2004, the Times of India (CW1/12).
13. The case of the appellant/complainant was that there were sufficient number of beds for the babies aged upto 4 weeks but the same was not provided to the complainants newly born child arbitrarily and arrogantly by Respondent-2 Hospital. This facility was badly needed by the newly born baby. Ward No. 18 of the Hospital was not meant for this new born baby (premature 7 & months), 1.28 kgs and with undeveloped lungs).
The child was further infected in ward no. 18 and his condition deteriorated. Thereafter the baby was shifted in the General ICU of Respondent-2, Safdarjung Hospital which again was not meant for the newly born babies. In General ICU, all types of patients of all groups were admitted which further complicated the matter and infection further increased (Rejoinder dated 9.10.2006 filed by the complainant). Ld. Counsel further emphasized that the newly born baby should have been adjusted in Nursery ICU but it could not be possible because complainant was an ordinary citizen and had no approach with high ups.
The respondent-2 committed gross negligence one after another and the baby finally expired on 25.4.04. The complainant/appellant lodged complaints with MED Superintendent Safdarjung Hospital, Commissioner of Police, Delhi and SHO, Indrapuram, Gaziabad but no action was taken against the Hospital and its doctors. He also emphasized that after the birth of the baby at 8.00 a.m., he was without Nursery ICU facility till 11.00 a.m., i.e., at the time of discharge and thereafter also. This fact was well known to the doctors at Respondent-1 Hospital as the wife of the complainant was under their medical care and supervision prior to delivery. It was also the case of the complainant appellant that at the time of admission of baby on 9.3.2004 at Respondent-2 Hospital, Nursery beds were vacant and available but the same was not provided to the complainants baby arbitrarily.
It has been wrongly and vaguely pleaded by Respondent-2 that beds in Nursery ICU were always overcrowded.
The newly born child was admitted in General Ward No. 18 only at 2.20 p.m. (Ex-CW1/5). Thus, the baby remained without Nursery from 8.00 a.m to 2.20 p.m. on 9.3.2004, which resulted in serious infection. For the survival of the baby, Nursery ICU facility was required, which was not provided arrogantly by Respondent-2 Hospital resulting in the death of the baby on 25.4.04 due to gross negligence of Respondent-1 & respondent-2 Hospitals. The plea of the Respondent that outside born babies are not given Nursery facilities was outrageous and cannot be accepted by any right thinking person. Ld. Counsel for the complainant continued and vehemently argued that since Respondent-2 was a government hospital, it could not have discriminated between child born inside hospital and child born outside hospital. Ventilators were available in Nursery only and could be used by the babies upto 4 weeks old. The respondent-2 has Two Nurseries.
14. As against this, Ld. Counsel for the Respondent-1 argued that newly born baby was shifted to Safdarjung Hospital within two hours of birth in well equipped ambulance having necessary facilities. Baby was shifted to casualty of Safdarjung Hospital at 9.50 a.m on 9.3.2004 in quite comfortable and manageable position. He emphasized that doctors at Respondent-1 Hospital exercised due care and skill which can be expected from them as they were competent enough to manage and treat this case. Since there was no allegation of any kind of negligence on the part of the doctors at Respondent-1 Hospital, no responsibility can be fastened of Respondent-1 Hospital too. There was absolutely no negligence on the part of Respondent-1. The complainant knew that Respondent-1 was a newly established Hospital and was still in the development phase and lacked Nursery ICU facilities. Complainant brought his tertiary gravida (G-3) wife in life threatening emergency condition. The best possible treatment and care was given to her. The baby was born premature (7 & months), 1.28 kg. weight and with undeveloped lungs needed Nursery ICU facility immediately after birth and was therefore shifted to Safdarjung Hospital with Nursery ICU facility.
Respondent-1 Hospital had ICU and Nursery but it did not have Nursery ICU facility and therefore, there was no question of misrepresentation on the part of Respondent-1 Hospital as alleged by the complainant.
15. Ld. Counsel for the Respondent-2 drew our attention towards written version filed by the Respondent-2 and the evidence of Dr. K.C. Aggarwal through affidavit. Dr. Aggarwal in his affidavit has stated that the baby patient was brought in a moribund and critical condition and was provided best possible treatment for more than one and a half months for survival. There was no negligence at any stage committed by the Respondent-2 Hospital. It was further stated in the affidavit that there was nothing like Nursery ICU at Respondent-2. However, there are two Nurseries which admit babies born at Safdarjung Hospital and its Satellite centers only. A large numbers of babies are born in Safdarjung Hospital (60-70 numbers), out of this 4 to 5 needs admission in Nursery. Nursery is always overcrowded. If out born babies are admitted, there are fair chances of community acquired infection inside Nursery. Therefore, it was the policy of the Hospital to admit the babies brought from outside only to wards directly and not to Nurseries for aforesaid reasons. It was also stated that 9.3.04 was admission day of ward No.
20. But ward No. 20 had no separate nursery, patient was admitted in ward No. 18 for immediate treatment. It was wrong to allege that baby developed infection in ward No. 18. In fact patient had infection before he was admitted to Safdarjung Hospital. As per discharge card of Safdarjung, patient had received antibiotic obviously for treating infection. The word Sepsis has been noted on the discharge card. Diagnosis recorded on the case sheet reads:Extremely prematurely (VLBW) with Sepsis. Bronchopneumonia and Respiratory insufficiency. Such babies carry extremely high mortality.
16. In reply filed by Respondent-2, it has been stated that in fact this baby was admitted in new little ward, which is the same as Nursery. Out born babies were admitted to new little ward but it has to be seen whether the allegations of the appellant was supported by sufficient evidence on record and also as to what stage newly born baby of the complainant/appellant was shifted in the new little ward.
17. Before reaching on a definite conclusion, it would be in the best interest of justice to discuss the principle of law laid down by the Apex Court regarding medical negligence. In Smt. Savita Garg Vs The Director, National Heart Institute CA No. 4024/03. Honble Supreme Court held: Once complainant produces prima facie evidence of the lack of proper care and negligence on the part of the Hospital and its doctors, the burden lies on the Hospital to justify that there was no negligence on the part of the treating doctor or Hospital. Honble Supreme Court in another case Poonam Verma Vs. Ashwin Patel 2250 (NS) 1986-96 categorized negligence of the following kind, Negligence has many manifestations. It may be active negligence, collateral negligence, comparative negligence, concurrent negligence, continued negligence, criminal negligence, gross negligence, hazardous negligence, active and passive negligence, well denied or reckless negligence or negligence per se. In this case, it is undisputed that necessary prompt medical care/facility was not available in Respondent-1 Hospital yet they admitted the patient for delivery of a premature baby. It should have advised the complainant well in advance and also at the time of admission to take the patient for delivery to a Hospital where Nursery ICU facility or Nursery facility was available. But out of greed they admitted the complainants wife to deliver a premature 7 and months old, 1.28 kgs weight with undeveloped lungs baby and then referred the baby to another Hospital with Nursery facility. The Respondent-1 thus deprived the newly born baby with immediate necessary facility badly need which complicated the matter further. This in our considered view amount to gross medical negligence per se on the part of Respondent-1.
18. As regard Respondent-2, as per evidence available on record, it has Nursery facility (2 Nos.) with ventilators for use upto the babies of 4 weeks. But the same was not made available arbitrarily and arrogantly on flimsy grounds. The newly born baby who badly needed Nursery facility was admitted to ward No. 20, then to ward No. 18 and lastly in General ICU of Safdarjung Hospital not meant for such premature born babies on the ground of out born baby. There has not been specific denial on the part of the Respondent-2 that there was no vacancy or availability of bed in Nursery on 9.3.2004 around noon or on any subsequent time/date. Only an arbitrary policy of the Hospital has been cited that only babies born in Safdarjung Hospital and its Satellite centers were admitted due to fear of infection in Nurseries. Thus, badly needed facility was denied on the basis of arbitrary, arrogant and discriminatory policy of the Hospital, which is totally unacceptable to us.
We are, therefore, convinced that both Respondent-1 & Respondent-2 Hospitals were guilty of gross medical negligence.
19. It is important to note here that we believe in an India where no child is left unattended, where every child has access to necessary medical treatment free from all types of discrimination to give credence and effect to social philosophy enshrined in current governing statute and Constitution of India. A journey has just been started and everyone is invited to join us in this pilgrimage.
20. There is another aspect of the matter which could be discussed before closing the discussion. In Para 8 of the Affidavit, Dr. Aggarwal has stated that treatment was provided free of cost without charging any fees from the parents of the patient. There has been no denial of this assertion of affidavit of Dr. Aggarwal. The case of Respondent-2 is, therefore, covered by the law laid down by Honble Supreme Court of India in Indian Medical Association Vs. V.P. Santha AIR 1996 SC 550; III (1995) CPJ 1 SC. It was held in Para 43 of this judgment that doctors and hospitals who rendered services free of charge to every person availing the services could not fall within the ambit of services under Section 2(1)(o) of the Consumer Protection Act 1986. The payment of token of amount of registration fee only could not alter the position in respect of such doctors and hospitals. In view of this legal position, no amount of compensation can be fastened upon Respondent-2 or in other words, compensation cannot be awarded against Respondent-2.
21. In view of the above facts, circumstances and legal position, the impugned judgment and order dated 24.5.2007 passed by the District Consumer Forum-II, Udyog Sadan, C-22 & 23, Institutional Area Behind Qutub Hotel, New Delhi in Complaint Case No. 55/2005 is found to be erroneous and is liable to be set aside.
It is accordingly set aside.
22. On the basis of evidence on record, we find that Respondent-1 Hospital was duly insured with Respondent-3, United India Insurance Company Ltd., vide Professional Indemnity Insurance Policy No. 040100/46/03/02180 for the period from 27.12.03 to 26.12.04 (Annexure A). Therefore, any amount of compensation awarded against Respondent-1 has to be reimbursed by Respondent-3 i.e. United India Insurance Company Ltd.
ORDER Accordingly, the appeal succeeds and the impugned judgment and Order 24.5.2007 passed by the District Consumer Forum-II, Udyog Sadan, C-22 & 23, Institutional Area Behind Qutub Hotel, New Delhi in Complaint Case No. 55/2005 is set aside. The complaint No. 55/2005 stands decreed. The Respondent-1 is directed to pay a sum of Rs. 2 Lacs as compensation to the appellant/complainant along with Rs. 20,000/- as cost of litigation.
23. The payment shall be made within a period of 30 days from the date of receipt of the copy of the judgment by the Respondent-1/OP-1. Since Respondent-1 is duly insured with Respondent-3, the amount of compensation and cost shall be reimbursed by Respondent-3, United India Insurance Company Ltd., within aforesaid period, failing which an interest @ 9% p.a. shall have to be paid from the date of the order till the date of actual payment.
24. No amount of compensation will have to be paid by the Respondent-2 for the reasons discussed in the body of the judgment.
25. A copy of this judgement and order as per the statutory requirement be provided to the parties free of charge and one copy be sent to the District Consumer Redressal Forum-II to place it on the record of the Complaint Case No. 55/2005 and for compliance, thereafter the file be consigned to Record Room.
26. Pronounced on 10.12.2013.
(S.A. SIDDIQUI) MEMBER (JUDICIAL) (S.C. JAIN) MEMBER rn