State Consumer Disputes Redressal Commission
The Trustees, Lilavati Hospital & ... vs Mr Sanjay Agarwal & Anr on 10 October, 2013
BEFORE THE HON'BLE STATE CONSUMER DISPUTES REDRESSAL
BEFORE THE
HON'BLE STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, MAHARASHTRA, MUMBAI
First Appeal
No. A/11/890
(Arisen out
of Order Dated 23/09/2011 in Case No. 172/2006 of District
Mumbai(Suburban))
THE TRUSTEES, LILAVATI HOSPITAL
& RESERCH CENTER
A-791 BANDRA RECLAMATION BANDRA MUMBAI 400050
...........Appellant(s)
Versus
1. MR SANJAY AGARWAL
804/4, RUSTONJEE OZONE
GOREGAON
MULUND LINK ROAD
NEAR MTNL GOREGAON EXCHANGE
GOREGAON (W), MUMBAI 400062
2. DR DEEPAK UGRA
A 402/403
SAUSALITO KIA PARK PRATHMESH COMPLEX VEERA DESAI ROAD
ANDHERI WEST MUMBAI 400053
...........Respondent(s)
BEFORE:
HON'ABLE MR. JUSTICE R.C.Chavan PRESIDENT
HON'ABLE MR. Dhanraj Khamatkar Member
PRESENT:
Mr.A.V.Patwardhan -Advocate for the appellant
Dr.M.S.Kamat-Authorized Representative for
respondent no.1
Mr.Shriram Shirsat -Advocate for respondent no.2
ORDER
Per Honble Mr.Justice R.C.Chavan, President This appeal is directed against the order passed by the Mumbai Suburban District Forum allowing consumer complaint no.172/2006 partly and ordering the appellant herein to pay compensation of `5 lakhs with costs of `10,000/- to the complainant.
Facts which are material for deciding this appeal are as under:-
2. The complainant is the father of an eight year old girl child. She was suffering from fever and vomitting on 9th and 10th June 2004 and was being treated by one Dr.Nabar, Family Physician.
Since her condition became serious, she was admitted to the appellants hospital at about 3.00 a.m. on 11/06/2004 and was under the treatment of Dr.Mili Gala. Dr.Gala started injecting IV fluids to the victim.
Victim became uneasy and twice gave jerks. Victim had breathing problem at 6.15 a.m. Victims condition deteriorated and she was admitted to Pediatric Intensive Care Unit (PICU) at 6.30 a.m. where she was treated by one Dr.Shivanand Medar, Sr. Pediatric Registrar. Dr.Ugra, who was supposed to give treatment to the victim and who was named as opponent no.2 in the complaint, came at 8.00 a.m. Victims death was confirmed between 8.10 a.m. to 9.00 a.m. Body of the victim was subjected to post mortem examination. It was concluded that victim died of Pneumonitis.
Complainant filed First Information Report (FIR) with Bandra police station alleging negligence by the appellant hospital and the doctors attending to the victim.
3. In the complaint filed before the forum, complainant alleged that the victim was not examined by any doctor between 3.30 a.m. and 6.30 a.m. and the symptoms shown by the victim were ignored. The doctors in the appellant hospital did not treat the victim properly, as a result of which victim died. The complainant therefore claimed compensation quantified at `18 lakhs.
4. Opponents filed written version of their defence and admitted that the victim was admitted in the hospital at about 3.30 a.m. on 11/06/2004 and, subsequently, was declared dead at 8.30 a.m. According to the hospital, Dr.Mili Gala made a provisional diagnosis of fever with moderate dehydration and started the necessary treatment. Samples of urine and blood were taken and were sent to the laboratory for testing. There was no negligence on the part of the hospital in treating the patient.
5. Before filing of the complaint, complainant approached Association for Consumers Action on Safety and Health (herein after referred to as ACASH). ACASH had sought the opinion of Dr.Amdekar who does not seem to have found any fault with the treatment given by the appellant hospital.
6. Dr.Deepak Ugra-opponent no.2 had also filed his written version, wherein he stated that he received a phone call at his residence at 6.45 a.m. on 11/06/2004 and when he reached the hospital around 8.00 a.m. Soon thereafter the victim died. He stated that he had no occasion to treat the victim.
7. The forum received the evidence tendered and after considering the evidence in the light of arguments advanced, partly allowed the complaint by the impugned order against the appellant. Complaint against Dr.Ugra was dismissed. Aggrieved thereby, appellant hospital is before us.
8. We have heard the Ld.Advocate Mr.A.V.Patwardhan for the appellant hospital, as also Dr.M.S.Kamat-Authorized Representative of respondent no.1/original complainant and Advocate Shriram Shirsat for respondent no.2-Dr.Deepak Ugra. With the help of Ld. advocates and the representative, we have gone through the record. There is no dispute about the fact that the victim was suffering from fever for two days prior to her admission to the hospital and that she was under treatment of one Dr.Nabar. There is also no dispute that she was admitted to the appellant hospital on 11/06/2004 at 3.00 a.m. and was examined by Dr.Mili Gala, who administered IV fluids to the patient. There is likewise no dispute that the victim suffered some jerks at 5.00 a.m. and 5.20 a.m. and that at 6.15 a.m. Dr.Gala decided to shift the victim to PICU where she was shifted at 6.30 a.m. At PICU she was treated by Dr.Shivanand Medar, Sr. Pediatric Registrar. At 8.00 a.m. Dr.Ugra arrived and at 8.30 a.m. victim was declared dead.
It is also not in dispute that necessary samples of urine and blood were taken and reached the hospitals laboratory between 6.43 a.m. to 6.48 a.m. Reports however became available only after the victim died. It is also not in dispute that xray examination was not done. The notes of post mortem examination would show that the victim died of Pneumonities.
On behalf of the complainant, complainant and his wife were examined. Dr.Amdekar to whom a reference had been made by ACASH was also examined and cross-examined on behalf of the complainant. Dr.Mili Gala was however not examined before the forum.
9. In the context of these facts, Ld.counsel for the appellant raised number of contentions.
He first contended that the appellant was a Trust and though the complaint was filed against the trust, the trustees were not joined by their names. He therefore, alleged that the complaint was not tenable in view of provisions of section 50 & 51 of the Bombay Public Trust Act and corresponding provision of the Indian Trust Act. He submitted that the suit could not be filed against the Trust without the permission of the Charity Commissioner. According to the Ld.counsel this defect went to the root of the matter. First, no such plea was seem to have been raised in the written version filed before the forum. In any case, complaint has been properly filed against the trustees of the Trust and it has been defended on behalf of the trust by their advocates.
Further, joinder of trustees in their individual names may be necessary only in cases relating to question of entrustment and not in complaints of the present nature in respect of the activity run by a Trust. Therefore, we find no substance in the contention of the Ld.counsel regarding breach of any provisions of the Bombay Public Trust Act and Indian Trust Act.
10. Ld.counsel for the appellant next submitted that Dr.Nabar who treated the victim two days prior to her admission was not made a party. He also submitted that the hospital did not know as to what treatment was given to the victim by Dr.Nabar before she was admitted to the hospital. According to him, the victim was in the hospital barely for five hours and it would be wrong to blame the hospital for the victims death. He submitted that on the basis of clinical examination, the doctor on duty had reached the provisional diagnosis and had accordingly started treatment in her best judgement. He pointed out that even according to the opinion of Dr.Amdekar, the independent expert, it was unfortunate that the child could not be saved but he could not conclude that there was any shortcoming in diagnosis or the management of patient within the time span that was available to the doctors. Therefore, according to him there was no material before the forum to come to the conclusion that the appellant was guilty of negligence in treating the victim and, consequently, guilty of deficiency in service. He found fault with the reliance by the forum on statements made by various persons to the police and submitted that such reliance was impermissible.
11. We have gone through the impugned judgement and do not find that the judgement is based on the statements recorded before the police. They are no doubt referred to in the judgement but are not the foundation of the conclusions drawn.
12. The forum seems to have principally come to the conclusion that the situation in which the victim died presented the case of res-ipsa-loquitur. As observed in para 41 of the judgement, Ld.members of the forum also came to the conclusion that the appellant was guilty of negligence because the appellant did not examine Dr.Mili Gala, who was in charge of the treatment of the victim from her admission till she was shifted to PICU. Ld.counsel for the appellant submitted that reference by the forum to the maxim of res-ipsa-loquitur itself shows perversity since this was not a case where the facts spoke for themselves. Representative of the complainant on the other hand submitted that there could have been no clearer case of facts staring on the face of the appellant about negligence by its doctor. He submitted that at 3.00 a.m. the victim, an eight year old child, was brought by her parents to the hospital.
He submitted that no parent would bring a child to the hospital at such an unearthly hour unless there was an emergency. Further, he pointed out that hospital too would not have admitted the patient, had there been no emergency. Therefore, according to him the very fact that the victim was brought to the hospital at 3.00 a.m. and was admitted by the hospital would show that the situation was serious and, therefore, called for proper care on the part of the hospital authorities. He submitted that the appellants hospital is stated to be one of the best hospitals in Mumbai and, therefore, ordinarily, standards of care in such a hospital would be very high as compared to other hospitals.
According to him, it is because of the reputation of the hospital that the patients would rush to it.
Therefore, he wondered as to what prevented the doctor for ordering a routine xray, which would have surely alerted the doctor to the existence of Pneumonia. He submitted that expecting the family members to come up at 3.00 a.m. with the papers of treatment given by Dr.Nabar, when the victim was brought to the hospital in an emergency was irrational since the family would first take the victim for being treated rather than search for the papers to be taken. In any case, according to him all that victim was suffering from was fever and dehydration and, therefore, there was nothing wrong or abnormal in parent getting the victim treated from their family physician or administering home remedies before they felt that the situation was going out of hands and, therefore, rushed to the hospital.
13. We agree with the representative of the complainant that it could not have been expected of a parent to rush to the hospital even for a simple fever and ordinarily the parents would take a child to the hospital only if it was found that there was something serious. Since Ld.counsel for the appellant repeatedly harped upon the absence of material about treatment of Dr.Nabar, possibly in order to suggest that if Dr.Nabar had not detected Pneumonia, Dr.Mili Gala of the appellants hospital should not be blamed for not coming to a similar conclusion. We have to observe that whether Dr.Nabar could have diagnosed the patient as suffering from Pneumonitis is not relevant. The question is whether medical officer in appellants hospital had ruled out all the possibilities, which could have made the victim suffer from fever and dehydration and what the doctor was expected to do in such a situation. Could the doctor in appellants hospital had failed to notice symptoms of pneumonitis, if the victim died within five hours of that ailment? It seems that even the samples of blood and urine which were taken at 5.00 a.m. according to the entry in the nurses record, the sample in fact reached the laboratory at 6.43 a.m. i.e. almost after one hour and 43 minutes.
That result of the analysis after the death of the victim did not disclose any abnormality, would not help the appellant since it showed lack of urgency in getting all the examinations of the victim carried out promptly.
14. Authorized representative of the complainant also pointed out that the entries in the Progress notes and the treatment sheet do not tally and the treatment sheet was possibly prepared subsequently. The Progress notes shows that at 6.30 a.m. the patient was seen by the Pediatric Registrar, whereas the treatment sheet, which is possibly prepared subsequently, shows that the Pediatric Registrar saw the victim at 5.00 a.m. He also pointed out that there was a possibility of the doctor not having monitored the patients health though the patient was serious, and all the entries being doctored.
15. He submitted that reliance by the appellant on the observations of Dr.Amdekar would not be helpful, as the forum had found that Dr.Amdekar was not consistent and the contradictions in his observations had been duly brought out in course of his cross examination. He pointed out that Dr.Amdekar had admitted that there was no record about the victims dehydration status during the three hours for which the child was in the hospital and, hence, it was not possible to comment on her stable condition during those three hours. Dr.Amdekar had further stated that with the limitation of absence of provisional diagnosis on admission and progress during the three hours at the hospital, it was not clear from the record as to why the victim deteriorated suddenly and unexpectedly. This would in our view indicate absence of provisional diagnosis and consequently no treatment at all. He also admitted that sudden development of shock is not a normal phenomenon. He admitted that as the record did not show dehydration status, it was difficult to define how the victim suddenly went into the shock. Authorized representative of the complainant therefore submitted that this clearly shows that the victim was not treated seriously and carefully.
16. The best witness who could have stated as to how the victim was treated was Dr.Mili Gala. For no reasons she has been kept away from the forum. Therefore, forum could not be blamed from drawing an inference that non examination of Dr.Mili Gala, coupled with the circumstances in which the victim was admitted to the hospital, type of treatment that she was given, the tests which were conducted and the speed with which her condition was deteriorated, would clearly show that the victim was treated negligently and not as may be routinely required in such cases. Therefore, in our view, the forum was right in relying on the observations of the Honble Supreme Court in the case of Jacob Mathew V/s. State of Punjab & another (AIR 2005 SC 3180) and concluding that the appellant was responsible for the negligent treatment of the victim. Forum has also rightly concluded, relying on the judgement of the Supreme Court in the case of Savita Garg v/s. The Director, National Heart Institute decided on 12/10/2004 in Appeal (Civil) 4024 of 2003, IV(2004) CPJ 40 (SC) that the hospital ought to have discharged the burden by producing the doctor, who treated the patient to substantiate the claim that there was no negligence.
17. In view of this, we concur with the finding recorded by the forum that the victim was treated negligently in the appellants hospital leading to victims death, which amounts to deficiency in service.
18. Against the claim of `18 lakhs made by the complainant, the forum awarded a sum of `5 lakhs. Ld.counsel for the appellant wondered as to how to the forum had come to this figure of `5 lakhs and why it could not have been a smaller token amount. In this case, an eight year old child has died within five hours of being admitted to the hospital. The agony and pain which the parent suffered on account of death of the child are surely something which cannot be compensated in money. Having regard to the expectation of the victims parents, when they brought the victim to the appellants reputed hospital and the disappointment they suffered is being made to carry away the dissected mortal remains of their daughter, it would not be appropriate to expect that the forum should have given a break up of why it awarded a sum of `5 lakhs. It is a small amount as compared to the value of life of a child lost to her parents. In view of this, we do not find any fault with the quantum of compensation awarded by the forum as also the costs. Hence, we pass the following order:-
ORDER Appeal stands dismissed.
Appellant shall pay to respondent no.1 costs quantified at `10,000/- in addition to the costs of `10,000/- awarded by the forum.
Pronounced on 10th October, 2013.
[HON'ABLE MR.
JUSTICE R.C.Chavan] PRESIDENT [HON'ABLE MR.
Dhanraj Khamatkar] Member Ms.