DR. S.M. KANTIKAR, MEMBER

1.      The instant first appeal is filed by Smt. Renu Aggarwal, the complainant, against the order dated 27-08-2015 of Punjab State Consumer Disputes Redressal Commission (hereinafter referred to as State Commission) in the Consumer Complaint No.60 of 2011 whereby the State Commission awarded compensation of Rs.3,00,000/- for the gross negligence committed by the team of doctors at OP1 i.e. Christian Medical College, Ludhiana.

2.      This appeal is filed for enhancement of compensation. The relevant facts in brief to dispose of this appeal are that the complainant was initially operated by Professor Mary Abraham for ectopic pregnancy on 04-10-2010 and discharged on 12-10-2010 from CMC, Ludhiana (OP1). Thereafter, she approached OP-hospital for persistent pain in abdomen. The second operation was performed by a team of doctors. Second emergency operation was performed by the team of doctors on 25-10-2010. It was for removal of foreign body and resection of bowel. The team of doctors performed the resection anastomosis of intestine and the patient was discharged on         08-11-2010. Therefore, alleging medical negligence, the complainant filed complaint before the State Commission against OPs praying compensation of Rs.40,00,000/- for medical negligence. The State Commission partially allowed the complaint and passed the following order that,

          “Complainant is entitled to compensation of Rs.3 lac (three lacs rupees only) from the OPs along with interest @9% p.a. from the date of complaint till the date of actual payment. The complainant is further entitled to an amount of Rs.20,000/- as costs of the litigation. OP No.1 would be primarily liable to pay the amount of compensation to the complainant and otherwise the liability of OPs shall be joint and several.”    

3.      Aggrieved by the impugned order of the State Commission the complainant preferred this appeal for enhancement of compensation.

4.      We have heard the learned counsel for the parties. The counsel for the complainant vehemently argued that, the OPs committed gross medical negligence, but the State Commission awarded peanuts to the complainant. The complainant is a young, 30 years old lady. She was working as sales girl and drawing Rs.7,000/- per month as salary. Due to negligence of OPs, two scissors were left behind in the abdomen during 1^st surgery on 04-10-2010. Therefore, she was again operated by OPs 2&3 on 25-10-2010. The loop of intestine was removed. Therefore, it was the negligence of the team of doctors who treated her. Thus, the patient deserves enhancement of the compensation.

5.      During arguments, Dr. Anil Luther (OP2) and Dr. Navdeep Saini (OP3) were present in person, whereas on behalf of OP1, counsel Mr. G. D. Gupta was present. Dr. Anil Luther (OP2) submitted that, he is a professor and unit head for General and Vascular surgery, whereas, Dr. Navdeep Saini (OP3) is a Professor and General surgeon. They denied about conducting first operation for rupture ectopic pregnancy. It was conducted on 04-10-2010 by Dr. Mary Abraham of Department of Gynaecology. Therefore, the patient was   again presented with pain in abdomen on 25-10-2010 since four hours with vomiting. She was admitted under Professor Mary Abraham and was taken for exploratory laparotomy which showed a pair of artery clamps in the abdomen. The bowel was gangrenous. Therefore, Dr. Anil Luther and         Dr. Navdeep Singh were called to assist and to perform resection anastomosis of gangrenous part of small bowel. The patient was discharged on 08-11-2010.

6.      Therefore, there was no negligence on the part of the OPs 2& 3 but it was the negligence of Dr. Mary Abraham. Unfortunately, Dr. Mary Abraham died in an accident. Therefore, the complainant has not made her a party in the original complaint but included OPs 2 & 3 as necessary parties. On perusal of evidence on record we do not find an iota of negligence caused by OPs 2 & 3 because they have neither performed initial ectopic surgery nor left the two artery clamps (foreign body) in the patient’s abdomen. Both have played a role of corrective surgery for complications occurred due to 1^st surgery. Both have performed resection of gangrenous bowel and proper anastomosis. Therefore, both the doctors hereby are exonerated for the medical negligence.

7.      The counsel for OP1 submitted that the complainant took claim from Bajaj Allianz Insurance Co. also. Therefore, there is no need of enhancement. The counsel submitted that her second operation for removal of the foreign body was done totally free of cost, it is not intentionally disclosed to the State Commission. The counsel admitted that there was an error on the part of the  team of Ob. & Gynae, hence they were suspended, immediately, after conducting inquiry. Based on the inquiry report, the hospital management committee took due action reprimanding them and also keeping them away from invasive procedures. One of the nurses has resigned and left. Unfortunately, the main operating doctor, Ms. Mary Abraham, died in a road traffic accident subsequently, after two weeks. The counsel further submitted that, medical college and hospital is a large organization of specialities and sub-specialities which cannot be run by one single doctor. Hence, the faculty in various disciplines, duly qualified after Post Graduation examination, is hired to teach as well as to look after the patient. The promotions are also time bound based on quality control, meaning a professor would have had adequate experience of patient care, as well as teaching.

8.      In our view, this instant case is of res ipsa loquitor that, late Dr. Mary Abraham inadvertently left behind two artery clamps i.e. foreign bodies in the patient’s abdomen, which caused unnecessary suffering of the patient for a long period. The patient was subjected for second surgery, lost a part of intestine. It was not a negligence on the part of OPs 2 & 3. It should be borne in mind that, the patient, even though, got the claim from Bajaj Allianz, it is towards her medical treatment only, but it was not a claim of medical negligence. In our view, it is the duty of consumer forum to award punitive compensation as just and proper in the cases of medical negligence. The patient/complainant is a young woman, she deserves enhancement of compensation of total compensation in the instant case. 

9.      It is settled law that hospital is vicariously liable for the acts of the doctor. The OP1 is vicariously liable for the act of late Dr. Mary Abraham. This view dovetails from the judgment of Hon’ble Apex Court in  Savita Garg Vs. National Heart Institute, (2004) 8 SSC 56, it was  also followed in case of  Balram Prasad v. Kunal Saha, (2014) 1 SCC 384. Therefore, considering the facts and circumstances of instant case, we partly allow this first appeal and modify the order of the State Commission as to enhance the compensation from Rs.3,00,000/- to Rs.6,00,000/-. Accordingly, the OP-1 is directed to pay Rs.6,00,000/- to the complainant, within four weeks from the date of receipt of copy of this order, otherwise, it will carry interest at the rate of 9% per annum, till its realisation. The first appeal is disposed of in the above terms.