National Consumer Disputes Redressal
Karan Hospital vs S. Anil Kumar & Ors. on 19 December, 2019
Author: R.K. Agrawal
Bench: R.K. Agrawal
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 29 OF 2015 (Against the Order dated 11/09/2014 in Complaint No. 110/2010 of the State Commission Andhra Pradesh) 1. KARAN HOSPITAL REP. BY ITS MANAGING DIRECTOR, DR. T.S. KUMAR, D. NO. 10-3-313/3, VIJAY NAGAR COLONY, HYDERABAD ...........Appellant(s) Versus 1. S. ANIL KUMAR & ORS. S/O. LATE S. NARAYANA RAO, PLOT NO. 31, RAIL VIHAR COLONY, CHARLAPALLY, RANGA REDDY DISTRICT, ANDHRA PRADESH 2. CARE HOSPITAL THE MANAGING DIRECTOR, ROAD NO. 1, BANJARA HILLS, HYDERABAD-500084 3. DR. ARUNA GYNAECOLOGIST W/O. DR. SUMAN CHANDRA, R/O. 18/A1, P.S. NAGAR COLONY, VIJAY NAGAR COLONY, HYDERABAD- 4. DR. JYOTHSNA W/O. RAMESH, GYNAECOLOGIST, C/O. SUDDALA GAUTHAM KRISHNA, FLAT NO. G-5, CHANAKYA SHELTERS, ALWAL, SECUNDERABAD 5. DR. RAMESH S/O. GOWRAYYA C/O. SUDDALA GAUTHAM KRISHNA, FLAT NO. G-5, CHANAKYA SHELTERS, ALWAL, SECUNDERABAD 6. GAUTHAM KRISHNA S/O. S. DEVAYYA, PRIVATE EMPLOYEE, FLAT NO. G-5, CHANAKYA SHELTERS, ALWAL, SECUNDERABAD- ...........Respondent(s) FIRST APPEAL NO. 33 OF 2016 (Against the Order dated 11/09/2014 in Complaint No. 1110/2010 of the State Commission Andhra Pradesh) 1. S. ANIL KUMAR S/O. LATE S. NARAYANA RAO, R/O. PLOT NO. 31, RAIL VIHAR COLONY, CHARLAPALLY, RANGA REDDY DISTRICT ...........Appellant(s) Versus 1. CARE HOSPITAL & 5 ORS. REP. BY ITS MANAGING DIRECTOR, ROAD NO. 1, BANJARA HILLS, HYDERABAD-500084 2. KARAN HOSPITAL REP. BY ITS MANAGING DIRECTOR, DR. T.S. KUMAR, D NO. 10-3-2013/3, VIJAY NAGAR COLONY, VIJAY NAGAR COLONY, HYDERABAD 3. DR. ARUNA GYNAECOLOGIST, W/O. DR. SUMAN CHANDRA, R/O. 18/A1, P.S. NAGAR COLONY, VIJAY NAGAR COLONY, HYDERABAD 4. DR. JYOTHSNA W/O. DR. RAMESH, GYNARCOLOGIST, C/O. SUDDALA GAUTAM KRISHNA, FLAT NO. G5,CHANAKYA SHELTERS, ALWAL, SECUNDERABAD 5. DR. RAMESH S/O. GOWRAYYA C/O. SUDDALA GAUTAM KRISHNA, FLAT NO. G5, CHANAKYA SHELTERS, ALWAL SECUNDERABAD 6. GAUTHAM KRISHNA S/O. S. DEVAYYA PRIVATE EMPLOYEE, FLAT NO. G5, CHANAKYA SHELTERS, ALWAL, SECUNDERABAD ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE R.K. AGRAWAL,PRESIDENT HON'BLE MRS. M. SHREESHA,MEMBER For the Appellant : For the Karan Hospital : Mr. D. Devender Rao, Advocate For the Respondent : For S. Anil Kumar/Complainant : Mrs. K. Radha, Advocate For Care Hospital : Mr. S. Srinivas R. Rao, Advocate (made submissions on 04.11.2019) For the Respondent/Doctors : Mr. P. Raja Sripathi Rao, Advocate Dated : 19 Dec 2019 ORDER Per Mrs. M. Shreesha, Member Dissatisfied by the order dated 11.09.2014 in Complaint Case No. 110/2010 passed by the Andhra Pradesh State Consumer Disputes Redressal Commission, Hyderabad (in short "the State Commission"), M/s Karan Hospital (hereinafter referred to as "the Hospital") preferred First Appeal No. 29 of 2015 and the Complainant preferred First Appeal No. 33 of 2015, seeking enhancement under Section 19 of the Consumer Protection Act, 1986 (in short "the Act"). By the impugned order, the State Commission has allowed the Complaint in part directing Opposite Parties No. 2 and 3 namely the Hospital and Dr. Aruna, Gynecologist (hereinafter referred to as "the Gynecologist") to pay ₹5,00,000/- towards compensation and costs of ₹5,000/- to be paid within four weeks. The Complaint against Opposite Parties No. 1 and 4 to 6 was dismissed without costs.
2. As both these Appeals are arising out of the same impugned order, the same are being disposed of by this common order.
3. The facts material to the case are that the Complainant's Daughter Ms. Sneha, a graduate in Biochemistry, was working in a Call Center and earning an amount of ₹12,000/- per month. While so, on 09.04.2009 at about 10.30 p.m. the Complainant received a phone call from Dr. Bhaskar of Care Hospital stating that his daughter was in a critical condition. On rushing to the Hospital, the Complainant was informed that an abortion was conducted on his daughter (hereinafter referred to as "the Patient") at Karan Hospital and was later shifted to Care Hospital as her condition become serious. It is averred that Opposite Parties No. 4 and 5 were introduced as the sister and brother in law and Mr. Gautham Krishna, namely Opposite Party No. 6 as her husband.
4. It is pleaded that the Complainant was informed by Opposite Party No. 5 that while conducting an operation on the Patient on 08.04.2009 at about 11 p.m., she went into coma on account of excess dose of anesthesia. Mr. Gautham had informed the Complainant that it was on account of his intimacy with Ms. Sneha that she had become pregnant. With an intention to terminate the pregnancy, the Patient was admitted at the hospital performed the operation at around 11 p.m. with active participation of Opposite Parties No. 4 and 5. It is averred that the Patient was administered wrong medicine and excess dose of anesthesia on account of which she had gone into a coma and had expired. It is pleaded that the management of both Karan Hospital and Care Hospital with active participation of their team doctors had led to the death of the Patient. This was done only with the collusion by Opposite Party No. 6 and his family. It is further pleaded that the Patient was six weeks pregnant and there was no need to conduct operation in a hurried manner at about 11 p.m. without informing her family members. There was no anesthetist present at the Hospital and powerful drugs were administered to the Patient in a negligent manner. It is averred that the consent of the Patient was not obtained prior to conduction of the operation and that the Patient died at the age of 22 years only on account of the negligence of the Opposite Parties.
5. The Complainant got issued a legal notice on 11.05.2010 claiming compensation for which he did not receive any reply from Care Hospital. Karan Hospital gave a reply on 09.05.2010 denying giving any treatment to the Patient.
6. The Opposite Parties No. 4 and 5 gave joint reply on 28.05.2010 denying the admission of the Patient at Karan Hospital. The Opposite Party No. 3 gave a separate reply dated 23.05.2010 admitting that the Patient was brought to Karan Hospital on 08.04.2009 by Opposite Parties No. 4 and 5 and she was on duty. It was stated that the Patient's condition was very serious and she was suffering from severe bleeding and pain and on enquiry, it was revealed that the Patient was pregnant and took I-Pills to avoid abortion. The Gynecologist in her reply stated that after taking necessary tests consent letter was taken for conducting operation in order to save her life. The Gynecologist administered local anesthesia and pain killers but the Patient collapsed immediately despite giving best treatment.
7. The Complainant pleads that they were never informed about the admission of her daughter at Karan Hospital or about her critical condition till she was shifted to Care Hospital. It is only on account of the negligence of the Opposite Parties that his young daughter at the age of 22 years had expired.
8. Care Hospital filed their Written Version denying the allegations made by the Complainant and stated that the Patient was brought to their Hospital on 09.04.2009 at around 12.20 A.M. with respiratory arrest. She was intubated in the previous hospital and was brought by an attendant, who claimed to be her cousin, another attendant, who claimed to be her husband and it is stated that no proper answers were forthcoming about the Patient's details or about her parents. It is averred that the MTP allegedly performed at Karan Hospital was incomplete. It is further averred that the Patient was accompanied by an anesthetist, who claimed to be her cousin, by Mr. Gautham Krishna, who claimed to be her husband and the informed consent as well as the high risk consent was signed by Mr. Gautham Krishna and the entire responsibility of payments of the treatment was given by Mr. Gautham and Dr. Ramesh. It is averred that a medicolegal case was made out and the police were informed, the Patient's parents were informed at around 10.15 p.m. on the same day, the Patient's father was told about the serious condition of the Patient. The Complainant refused to sign any paper and therefore the consent and undertaking had to be obtained from Mr. Gautham.
9. The Patient was administered Midazolam and Ketamine at Karan Hospital following which she has respiratory arrest. She was found to be comatosed with minimal response and had recurrent seizures and was in shock. There was no improvement in the sensorium for the next few days. The critical condition of the Patient, the poor prognosis and low chances of sensorium improving was explained to the Patient's attendant throughout her Hospital stay. It is averred that despite best efforts on 20.04.2009 the Patient developed severe Bradycardia and was declared dead at 2 a.m. on 20.04.2009.
10. It is pleaded that what has transpired allegedly at Karan Hospital was not in the knowledge of Care Hospital and it is denied that the doctors at Care Hospital have colluded with Mr. Gautham i.e. sixth Opposite Party under the influence of his father. It is stated that all necessary treatment was given and the required information was also given to the family as per due process and the police was also informed as it was a medicolegal case and hence there was no deficiency of service on their behalf.
11. Karan Hospital filed their Written Version denying all the allegations made by the Complainant. It is stated that the third Opposite Party is a reputed gynecologist, who is a consultant at their Hospital and on 08.04.2009, when the Patient was brought in a critical condition, it was stated that the Patient had already taken some medicine for abortion. On account of the exigency of the situation which warranted immediate surgical procedure, there is inherent risk and complications and no negligence can be attributed to the Gynecologist or the Hospital as no charges were collected for the treatment given to the patient. All other allegations made by the Complainant were denied.
12. The Opposite Party No. 3, the Gynecologist resisted the Complaint denying all the allegations and specified that she had attended the Patient and notices that her condition was serious; that she was suffering from severe bleeding and pain; that the Patient had told her that she had taken I-Pill to avoid pregnancy almost three times; the scan showed 7 to 8 weeks pregnancy; for termination of pregnancy she had taken Misoprostol tablets for abortion on advise of some other doctor; she developed pain in the lower abdomen and started bleeding; consent was taken from the Patient along with Opposite Party No. 4, she had agreed to do MTP as it was confirmed to her that the Patient and Gautham were husband and wife; Dr. Jyothsana, the attendant had confirmed the relationship status; both gave consent for MTP that Dr. Jyothsana and the Patent; that the Patient was pregnant for 7 to 8 weeks and it was legal to terminate the pregnancy, which is below 20 weeks; for contraceptive failure I-Pill and Misoprostol was taken for abortion; the Patient had two episodes of bleeding at home and she was still bleeding with severe pain and that she feared that the drug may cause abnormality in the baby.
13. It was also averred that after general examination, as per standard protocol 800 mg of Misoprostol was given and thereafter the Patient was shifted to the operation theater. All routine preparation was done to perform the MTP under local anesthesia and after giving Xylocaine injection, the procedure was attempted. The Patient was very apprehensive and anxious and was crying with pain and was given Midazolam 1mg diluted with 2 CC desilted water and thereafter she observed oxygen saturation falling on the pulse oximeter monitor. Immediately oxygen was given as the heart rate was falling, but there was no improvement in the heart rate and hence adrenaline was given as the Patient needed ventilator support it was recommended that she be transferred to a higher management center like Care Hospital for specialist treatment. The Opposite Parties No. 4 and 5 gave their consent and then the Patient with intubation and oxygen cylinder was shifted to Care Hospital in 108 Ambulance. It is stated that the Patient's vitals were stable and the oxygen saturation was 97% when she was shifted. It is averred that all due care and caution was taken as per standard of normal medical practices and according to medical ethics and therefore no negligence can be attributed to her.
14. The Opposite Party No. 4, Dr. Jyothsana denies all allegations against her and further denied that the Patient was administered a wrong medicine and excess doses of anesthesia which had led the Patient into a coma. The Patient was six weeks pregnant and wanted to terminate the pregnancy and there is absolutely no role played by her in the entire process and seeks dismissal of the Complaint against her and stated that there is no negligence on behalf of the Hospital and the Gynecologist as they all adhered to medical ethics.
15. The Opposite Party No. 5. Dr. Ramesh, averred that the Complainant was not a Consumer; denied for want of knowledge the details regarding the Patient's condition, career and her marriage; that Opposite Party No. 6 and the Patient got married and they were residing in a separate house in Alwal and the Patient did not want to have a child and accordingly she along with the Opposite Party No.6 went to Karan Hospital for MTP and during the procedure the Patient's condition become serious as a result of which, she was rightly shifted to Care Hospital and that he had no role to play either in the treatment or otherwise and hence there is no negligence on his behalf.
16. Opposite Party No. 6 was added as a performa party and did not choose to contest the case.
17. It is a settled law that the aspect of Medical Negligence has to be tested on the touch stone of the 'duty of care' & 'standard of care' which ought to be exhibited by the treating doctors as laid down by the Hon'ble Supreme Court in a catena of judgements.
18. A three-judge Bench of the Hon'ble Supreme Court in Dr Laxman Balkrishna Joshi v Dr Trimbak Bapu Godbole stipulated that the standard to be applied by a medical practitioner, must be of a "reasonable degree of care". It further held as under :-
"11. The duties which a doctor owes to his patient are clear. A person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person when consulted by a patient, owes him certain duties viz., a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give or a duty of care in the administration of that treatment. A breach of any of those duties, gives a right of action for negligence to the patient. The practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires (cf. Halsbury's Laws of England 3rd Edn. Vol. 26 p. 17).
In Jacob Mathew v State of Punjab, a three-judge Bench of this Court upheld the standard of the ordinary competent medical practitioner exercising an ordinary degree of professional skill, as enunciated in Bolam (supra). The Court held that the standard of care must be in accordance with "general and approved practice".
19. In Halsbury's Laws of England the degree of skill and care required by a medical practitioner is detailed as follows:-
"The practitioner must bring to his task a reasonable degree of skill and knowledge, and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence, judged in the light of the particular circumstances of each cases, is what the law requires, and a person is not liable in negligence because someone else of greater skill and knowledge would have prescribed different treatment or operated in a different way; nor is he guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art, even though a body of adverse opinion also existed among medical men.
Deviation from normal practices is not necessarily evidence of negligence. To establish liability on that basis it must be shown (1) that there is a usual and normal practice; (2) that the defendant has not adopted it; and (3) that the course in fact adopted is one no professional man of ordinary skill would have taken had he been acting with ordinary care."
A doctor has a legal duty to take care of his patient. Whenever a patient visits a doctor for treatment there is a contract by implication that the doctor will take reasonable care to treat him. If there is a breach of that duty and if it results in injury or damage, the doctor will be held liable. The doctor must exercise a reasonable degree of care and skill in his treatment; but at the same time he does not and cannot guarantee cure.
20. For better understanding of the case, the operation notes of the treating doctor i.e. the Gynecologist are reproduced as hereunder:
"Name: Sneha Operation: posted for MTP-S E + Check Curettage Surgeon - Dr. Aruna Suman Asst by - Dr. Jyotsna Procedure: After painting and draping after Inj. Tramadol IM and Paracervical block with 1% Xyolocaine- 10 cc - dilator was pushed. As the patient complained of pain, the procedure was stopped.
Inj. Midazolam was given 1 mgm diluted in 2cc of distilled water. Pt. monitored with pulse oximterer which showed fall in saturation and noticed apnoea. 100% O2 given. Suxa given and patient is intubated immediately.
Inj. Atropine 2 amps given, adrenaline 1 amp and Inj. Hydrocortisone 100 mg given and ventilated. In view of sudden apnoea and episode of bradycardia with fall in saturation, procedure abandoned and shifted with Ambo bag support, oxygen to care hospital for intensive care management.
Inj. Tramadol 1 amp IV-1 Inj. Zofer 4 mg-1 Inj. Midazolam 2cc Inj. Hydrocortisone 100 mg-1 Inj. Atropine-1 Inj. Adrenaline-1+1 R.L.-1 I.V. Cannula-1 I.V. Set-1 D/S 2 ml 1+1 D/S 5 ml 1 Xylocaine local 5 ml D.W. -5 ml 10 ml syringe-1 Inj. Succinylcholine 2 ml- I.V. Stat "
21. On a pointed query from the Bench, with respect to initial prescription, learned Counsel appearing for the treating Doctor furnished before us, prescription which had hand written note on the top, which hand writing prime facie appears to be different from the subsequent prescription. Be that as it may, it is pertinent to note that in this case sheet, there is absolutely no mention of the Patient having taken misoprostol prior to coming to the Hospital. If truly the Patient was in an emergency condition having consumed misoprostol to terminate her pregnancy at home, on her own volition, the treating Doctor and the Hospital would have entered, it in the Patient's history as soon as she was admitted, especially having regard to the fact that it is their own case that the Patient had come in an emergency situation. In the absence of any such medical record, we do not find any substance in the contention of the treating Doctor and the Karan Hospital, that it was only because the Patient had come to them having taken some medication at home, that the mishap had occurred.
22. At this juncture, we take into consideration the post-mortem report, which states that the cause of death is 'cervical shock/ a surgical complication of cervical intubation in the present case'.
23. It is evidenced from the post-mortem report that the Patient died of cervical shock. It is the case of the Complainant that the situation was not of an emergency; the procedure was elective; no proper consent was taken before the MTP and that Anesthesia was not properly administered. The Complainant i.e. the Patient's family was not informed and further that the Doctors colluded with Opposite Party No. 6, who was not legally married to the Patient.
24. Learned Counsel appearing for the Hospital vehemently contended that as per MTP Rules even an RMP can perform an MTP and can administered local anesthesia and for a Patient requiring an MTP, it is not mandatory for an anesthetist to be present. He argued that the Patient had tried to terminate pregnancy using Misoprostol which had led to her serious condition and had arrived at Karan Hospital in a high risk condition.
25. With respect to anesthesia, it is seen from the treatment chart that the pre anesthetic notes has not been filed. There are no substantial reasons forthcoming from the treating doctor, i.e., the Gynecologist or the Hospital with respect to how the Patient had developed Hypoxia and went into comatose stage. There is no evidence on record to establish that an Anesthetist was present and if any instructions were taken from any specialist, when the Patient complained of pain immediately after being administered local anesthesia.
26. The Hon'ble Supreme Court in Smt. Savita Garg Vs. Director, National Heart Institute (2004) 8 SCC 56, has laid down that the onus shifts on the Treating Doctor to establish the line of treatment that has been rendered to the Patient. Even in the reply to the interrogatories, the Gynecologist has only stated that the availability of the Anesthetist is as per requirement and has never confirmed that an Anesthetist was called for even after the Patient had developed some complications. The Hospital ought to have called or at least made sincere efforts to bring an Anesthetist who would have ascertained the situation and assisted in relieving the Patient of the complications that could have arisen because of anesthesia.
27. Now we address ourselves to the 'Consent Form'. As per the provisions of the MTP Rules, 2003 only the consent of woman whose pregnancy is being terminated is required and as per sub-Section (4) of Section 3 consent shall be given in Form C format, which is being reproduced as hereunder:
FORM C (See rule 8 ) I ______________________ daughter/wife of__________________ Aged about ______ years of_________________________________ (here state the permanent address) at present residing at ______________________________________ do here by give my consent to the termination of my pregnancy at _______________________________________________________________________________________________________________ (State the name of place where the pregnancy is to be terminated) Place:
Date:
Signature (To be filled in by guardian where the woman is a mentally ill person or minor ) I_________________ son/daughter/wife of_____________________ aged about _______ years of _____________________________ at present residing at (Permanent address ) _____________________________________________________ do hereby give my consent to the termination of the pregnancy of my ward _________________ who is a minor/lunatic at _______________________( place of termination of my pregnancy) Place:
Date:"
These aforenoted rules evidence that the Patient too should give consent to the Medical Termination of Pregnancy. Now, we address ourselves to whether this was adhered to prior to the Medical Termination of Pregnancy.
28. In the instant case, it was a first pregnancy. The Complainant who is present in person submits that there was no evidence of any marriage between the Patient and the Opposite Party No. 6. Be that as it may, a perusal of the Express Consent Form shows that it has been witnessed by one Jyothsana, i.e. Opposite Party No. 5, and by Opposite Party No. 6. Nowhere does it state that the Patient too had given her consent. For better understanding, the scanned copy of the same is being reproduced:
29. Learned Counsel appearing for the Hospital also drew our attention to the hand written letter written by Opposite Party No. 6, which reads as follows:
"WHOM SO EVER IT MIGHT CONCERN I am S. V. Gautam Krishna have got married to Sneha suryavanshi without the consent of our parents. Thought of informing them at a right stage.
In the meantime she got pregnancy. She does not want to continue as we both are working in a private company.
Because of this she went into mental depression and phychosis. So, I have given consent to medical termination of pregnancy.
Sd/-
08/04/09"
30. This does not anywhere establish that the Consent was taken as per procedure laid down in MTP Rules, 2003.
31. In Samira Kohli Vs. Dr. Prabha Manchanda (2008) 2 SCC 1, the Hon'ble Supreme Court has summarized the principles of 'Consent' in para 4, which is reproduced below:-
"49. we may now summarise principles relating to consent as follows:
A doctor has to seek and secure the consent of the patient before commencing a "treatment" (the term "treatment" includes surgery also).The consent so obtained should be real and valid, which means that : the patient should have the capacity and competence to consent; his consent should be voluntary; and his consent should be on the basis of adequate information concerning the nature of the treatment procedure, so that he knows what he is consenting to."
(Emphasis supplied) The court also observed in para 23 as:
"23. It is quite possible that if the patient been conscious, and informed about the need for the additional procedure, the patient might have agreed to it. It may be that the additional procedure is beneficial and in the interests of the patient. It may be that postponement of the additional procedure (say removal of an organ) may require another surgery, whereas removal of the affected organ during the initial diagnostic or exploratory surgery would save the patient from the pain and cost of a second operation. Howsoever practical or convenient the reasons may be, they are not relevant. What is relevant and of importance is the inviolable nature of the patient's right in regard to his body and his right to decide whether he should undergo the particular treatment or surgery or not. Therefore at the risk of repetition, we may add that unless the unauthorized additional or further procedure is necessary in order to save the life or preserve the health of the patient and it would be unreasonable (as contrasted from being merely inconvenient) to delay the further procedure until the patient regains consciousness and takes a decision, a doctor cannot perform such procedure without the consent of the patient."
32. From the aforenoted consent, it is seen that the parameters laid down by the Hon'ble Supreme Court in Samira Kohli (Supra), has not been adhered to. Even if for arguments sake we consider that the Patient had taken some medication earlier and then come to the Hospital, even for additional procedure, informed consent has to be taken when the Patient is conscious and coherent. This was not done in this case. Hence we hold the Hospital deficient in their service with respect to not taking proper consent as per the ratio laid down by the Hon'ble Supreme Court in Samira Kohli (Supra).
33. The conduct of the Hospital in taking the Consent for (item No. 4) 'removal of any organ as deemed necessary by the Doctors at the time of medication/ investigation/ anesthesia/ operation/ therapy/ procedure' is deprecated. Such consent not only construes unfair trade practice but also gives a hospital an unfair and free hand to illegally remove any organ and thereafter state that it was with the consent of the Patient.
34. At this juncture, it is relevant to rely on the Affidavit given by Dr. M. Narayan Reddy, M.D.(FM);LLB, who is the retired Prof. of Forensic Medicine Osmania Medical College, Osmania General Hospital, Hyderabad. He has opined as follows:
"OPINION:
In this case as per the hospital case record, there was no legally valid indication to terminate the pregnancy, under the MTP Ac, 1971.
The letter of consent alleged to be written by the husband of the deceased confirms that there was no valid reason to terminate the pregnancy.
The cause of death was due to the attempt to dilate the cervix before the local anaesthetic drug shows the desired effect after its administration."
(Emphasis supplied)
35. This opinion is contradictory to the Medical Board opinion, which the learned Counsel appearing for the Hospital and Gynecologist relied on.
36. For all the aforenoted reasons with respect to improper consent, absence of pre-anesthetic notes read together with the Affidavit of Dr. M. Narayan Reddy, MTP Rule, 2003 and the Post Mortem Report, we are of the considered view that there is negligence on behalf of the Karan Hospital. We do not find any negligence on behalf of 'Care Hospital' which has treated the Patient as per standards of normal Medical Parlance. The Patient was already critical and was shifted here for higher management only. The material on record shows that the 'duty of care' as envisaged by the Hon'ble Supreme Court in a catena of judgements has been adhered to.
37. Hence the Appeal preferred by Karan Hospital is dismissed with no order as to costs. The Appeal preferred by the Complainant is with the delay of 447 days. For reasons cited in the Affidavit, the delay in filing the Appeal is condoned.
38. Learned Counsel appearing for the Complainant submitted that the Patient was only 22 years old and earning ₹22,000/- per month (salary certificate). The Complainant has filed Exhibits A-17 and A-18, which are the provisional certificates and offer of employment. The State Commission has awarded a lump sum compensation of ₹5,00,000/-. It is pertinent to note that the third Opposite Party, the Gynecologist did not prefer any Appeal. It is submitted that an amount of ₹2,50,000/- was deposited before the State Commission. The Hon'ble Supreme Court in Arun Kumar Manglik Vs. Chirayu Health and Medicare Private Limited & Anr., (2019) 7 SCC 401, wherein it is observed as follows:
"53. ........Thus, in computing compensation payable on the death of a home-maker spouse who is not employed, the Court must bear in mind that the contribution is significant and capable of being measured in monetary terms.
54. In assessing the amount of compensation, we have been guided by the principle which has been laid down by the Constitution Bench in Lata Wadhwa and in National Insurance Company Ltd. v Pranay Sethi18 with suitable modifications in a case involving medical negligence.
55. In our view, the interests of justice would be met, if the amount of compensation is enhanced. We accordingly, direct that the appellant shall be entitled to receive an amount of Rs. 15 lakhs by way of compensation from the first respondent."
39. Keeping in view the aforenoted judgment and also the fact that the Patient was only 22 years old, was earning and had a life expectancy of at least 70 years, we are of the considered view that the amount of compensation may be enhanced from ₹5,00,000/- to ₹10,00,000/-. As the Doctor has already paid an amount of ₹2,50,000/- and we have observed that there was also negligence in taking consent and the absence of pre-anesthetic notes, the hospital alone shall be made liable for payment of the balance amount, (after adjusting/ releasing the amounts deposited by the State Commission, along with accrued interest) within four weeks from the date of receipt of a copy of this order failing which the amount shall attract interest @ 8% p.a. from the date of filing of the Complaint till the date of realization. We also enhance the cost to ₹20,000/- from ₹5,000/- to be paid by the Hospital.
40. In the result, First Appeal No. 29 of 2015 preferred by the Hospital is dismissed and First Appeal No. 33 of 2016 preferred by the Complainant is allowed in part with the aforenoted directions.
41. The statutory amount deposited by the Hospital in First Appeal No. 29 of 2015, shall stand released to the Complainant.
......................J R.K. AGRAWAL PRESIDENT ...................... M. SHREESHA MEMBER