ORDER (ORAL)

1.       The brief facts to dispose of this Revision Petition are that on 09.12.2004, the Complainant’s wife (hereinafter referred to as the ‘patient’) underwent abdominal hysterectomy at Shanti Memorial Nursing Home (hereinafter referred to as the ‘nursing home’) as advised by the OP-Dr. Alok Kumar.  The patient was discharged on 18.12.2004.  Thereafter, she developed some complications and consulted Dr. K.P. Roy at Hajipur who further referred her to Dr. Rajeshwar Thakur, Patna, who operated the patient on 21.12.2004 and 30.12.2004. Patient was kept under treatment, but, unfortunately after one month, the patient died on 30.01.2005.  Being aggrieved, her husband filed a Complaint before the District Forum, Vaishali at Hajipur. 

2.       The OP filed the Written Version and denied any negligence during the treatment. The OP further submitted that he neither advised the operation nor performed the operation, but provided his nursing home for the operation and treatment facilities. The operation was performed by Dr. Rajeev Ranjan and others. Therefore, the Complaint was bad for non-joinder of the parties. 

3.       The District Forum considering the evidence and appraisal of pleadings allowed the Complaint partly and directed the OP as below:

“In the result, we held the complaint entitled to a total compensation of Rs. 6,75,000/- (Six Lacs Seventy Five Thousand Rupees only) to be paid to him by the doctor (opposite party) for the medical negligence committed by the latter in course of treatment of complainant's wife who ultimately died. We further direct that within forty-five days of receipt/service of a copy of this order, the doctor/ opposite party shall pay through cheque the aforesaid amount of Rupees Six Lacs Seventy Five Thousand only to the complainant failing which the said amount shall also carry interest of 15% per annue from the date of this order till payment.”

(From true typed copy)

4.       Being aggrieved, the OP filed the First Appeal before the State Commission.  Though the State Commission held OP negligent, but it was for limited extent and reduced the compensation to Rs. 25,000/- with the following observations:

“In light of discussion as state above, we hold negligence on part of appellant limited to part of allegation advising AH to the wife of the complainant without proper medical examination more so when Ultrasound report was normal.  Therefore we are of the opinion that the appellant doctor is liable to pay lump sum compensation amount of total Rs.25,000/- (Twenty five thousand) only to complainant/respondent instead of Rs.6,75,000/(Six lacs seventy five thousand). The order of the District Forum is allowed and modified to above extent.”

5.       Being aggrieved the Petitioner/Complainant filed the instant Revision Petition.

6.       I have heard the learned Counsel on both the sides.  Carefully perused the medical record available on the file and inter-alia Orders of both the Fora below.  The learned Counsel on both the sides reiterated the facts and evidence adduced before the lower Fora.  

7.       Admittedly, the patient was not operated by the Petitioner but the operation was performed in his nursing home on 09.12.2004 by Dr. Rajeev Ranjan (M.S., General Surgery).  It was done after taking informed consent of the patient’s husband.  The patient was discharged with the advice on 18.12.2004. After discharge her condition did not improve, therefore, she took treatment from Dr. Rajeshwar Thakur at Patna.

8.       The question for consideration is that whether the hysterectomy was necessary in the instant case. The ultrasonography (USG) report dated 01.12.2004 of lower abdomen revealed the size of uterus as 8.53 X 3.02 cms, it was in normal shape, size and echotexture.  Both the ovaries were normal having follicular structure.  Therefore, from the clinical and USG findings there was no indication and necessity of hysterectomy operation. 

9.       The Complainant initiated a Criminal Complaint before the SDJM, Vailshali at Hajipur.  By the Order of Court, vide dated 16.01.2005 Dr. Rajeshwar Thakur who treated the patient at Patna, for the complications filed the treatment record.  He operated the patient twice on 21.12.2004 and 30.12.2004. The findings were led   the lower abdomen was grossly distended due to peritonitis, her pulse rate 124/min, she was pale and 100^oF temperature.  Therefore, emergency operation was performed.  The relevant operative notes are reproduced as below:

          “21.12.2004

          OPERATIVE NOTE:    Under gas, relaxant and Forane (Isoflurane) anaesthesia. 

          Abdomen was opened through the previous lower mid-line incision. 

          About one litre of very foul smelling thick pus was sucked out from lower abdomen.  There was a F.B. in the pelvis which was removed.  Vaginal stump was opened and a Corrugated drain was provided through vagina.

          Abdomen was closed in layer with Vicryl No.1 Suture.”

Subsequently, the patient was operated again on 30.12.2004.  The relevant findings of the operative notes as below:

          “30.12.2004

          OPERATIVE NOTE: Under gas, halothane and relaxant anaesthesia.

Abdomen was opened through the previous lower midline incision which needed extension upward by skirting on the right side of the umbilicus.

Small quantity of thick pus was present in the pelvis and in the abdomen which are mopped out.

Loops of the small intestine were very intimately adherent like cement with each other and it was almost impossible to separate them.

However, with slow and tedious dissection most of the adherent loops were separated.  Due to the dense and unyielding adhesion at several places there was kining and obstruction of the distal ileum.

During the process of separation of adhesion small tear was caused in the termina ileum which was closed in two layers.

A Corrugated drain was provided through the vaginal stump into the vagina.

Layers of the abdominal wall were glued together due to the effect of pelvic peritonitis which could not be separated layer-wise.

Skin was closed.

During the operation her condition deteriorated and her blood pressure was maintained by rapid intravenous infusion of five litres of fluid, one bottle of Haemaceal, three vials of Efcorlin and later on Dopamine drip was started.  1200 mls. of blood was arranged immediately and transferred.

She recovered from anaesthesia smoothly.”

10.     It is evident from the operative notes (supra) a missing foreign body was found in the abdomen on 21.12.2004, which was the prime cause of peritonitis. It is pertinent to note that one litre foul smelling thick pus was noted in the lower abdomen. Due to pus adhesions were developed to the intestine and internal organ.  The pus was drained and intestinal resection and anastomosis was done by Dr. Rajeshwar Thakur.  No doubt the patient suffered pathetic and disastrous events.  It should be borne in mind that a missing foreign body in the abdomen, itself was a case of res ipsa loquiter, thus it was failure of duty of care by the surgeon Dr. Rajeev Ranjan who performed hysterectomy on 11.12.2004. 

11.     The question of liability in the instant case, in my view is vicarious liability.  Though, Dr. Alok Kumar, the OP/Respondent was admittedly M.B.B.S.  He was the proprietor of the nursing home.  He admitted the patient of abdominal hysterectomy on the instructions of the visiting consultants. As per the evidence, the operation was performed by Dr. Rajeev Ranjan and Dr. Sushila Kumari, Anaesthetist; but both were not impleaded as opposite parties before the District Forum.  Therefore, the nursing home is held vicarious liability for the medical negligence of the consultants therein; even they were honorary or visiting.

12.     I would like to rely upon the settled law that the hospital is vicariously liable for the acts of its doctors as held by the Hon’ble Supreme Court in the cases Savita Garg vs. National Heart Institute[1], in Balram Prasad v. Kunal Saha[2]. Similarly in Achutrao Haribhau Khodwa v. State of Maharashtra[3], this court unequivocally held that the state would be vicariously liable for the damages which may become payable on account of negligence of its doctors or other employees. decisions of the Hon’ble Supreme Court which had discussed on the vicarious liability in the medical negligence cases.  Recently, in the case of Maharaja Agrasen Hospital v Master Rishabh Sharma[4]  the Hon’ble Supreme Court held that

“11.4.17 It is well established that a hospital is vicariously liable for the acts of negligence committed by the doctors engaged or empanelled to provide medical care. It is common experience that when a patient goes to a hospital, he/she goes there on account of the reputation of the hospital, and with the hope that due and proper care will be taken by the hospital authorities.  If the hospital fails to discharge their duties through their doctors, being employed on job basis or employed on contract basis, it is the hospital which has to justify the acts of commission or omission on behalf of their doctors.”

Therefore, in my view, it is not possible to absolve the nursing home of Opposite Party from vicarious liability.  

13.     Based on discussion above, the Order of the State Commission is set aside and the Order of the District Forum is restored. 

14.     It is brought to my notice that pursuance to the Order of the District Forum, the OP deposited the entire amount before the District Forum. The District Forum is directed to release the amount alongwith  accrued interest, if any, to the Complainant with due verification within 15 days from the receipt of this Order.

15.     Similarly, the OP while filing the Appeal before the State Commission has deposited the statutory amount of Rs.25,000/-.  The Registrar of the State Commission is directed to release Rs.25,000/- along with accrued interest to the Dr. Alok Kumar (OP).

16.     The Revision Petition is allowed.  Parties to bear their own costs.