Haryana

Hisar

319/2007

Rajdev Yadav - Complainant(s)

Versus

Dr. Raj Prashar - Opp.Party(s)

OP Verma

17 Dec 2014

ORDER

                  Case of complainant Raj Dev Yadav is that his wife Smt. Sobha Devi (since deceased)  was carrying  almost full time  pregnancy. On 12.9.2006,  she went to Dr. Raj Prashar i.e. to  opposite party No.1 for

normal checking . When she was admitted  for delivery in the hospital. Earlier,  she had given birth to a child in her own home,  and at that time the delivery  was without any trouble. That now on 12.9.2006, during delivery operation,  heavy dose of anesthesia was given to her,  without taking adequate and due medical precautions, as a result of which she became fully unconscious. Her condition became very critical.  Dr. Raj Prashar i.e.  Opposite party No.1 did not disclose  reality to the complainant,  but made lame  excuses and requested him  to shift her in Holy Hospital, Hisar i.e. in opposite party No.2. That due to  said bad and  critical condition of  Shoba Devi, she was got admitted in Holy Hospital, Hisar, where  proper   medical treatment was given,  but her condition did not improve. On 19.9.2006, she was   shifted in  N.C. Jindal  Medical care & Research Institute i.e.  opposite party No.3,  where  her  condition did not improve and died on 21.9.2006 at about 4.35p.m.  It is further  pleaded that death of Shobha Devi,  was only due to medical negligence of opposite party No.1, as  it was in a normal delivery care but in order to extract money. She was admitted in the hospital for  operation and then caused her death. It is also pleaded that opposite party No.1  manipulated false medical history of the deceased.

2.               It is further pleaded that at the time of death, Shobha Devi was only 38 years in age. She used to do all her  household  work and used to help the complainant in his job. That she has left behind,  her husband and two minor children,  who have been deprived of her love affection, besides her services. That now future of  all of them has become dark. That legal notice dated 1.5.2007 was sent to opposite party No.1,  for claiming compensation but it was falsely replied. The complainant has claimed compensation of Rs.5,00,000/-,  besides medical treatment expenses of  Rs.2,00,000/- with upto date interest,  as well as  litigation expenses and any other relief which this forum deems fit.

3.                N.C. Jindal Hospital, Hisar i.e. opposite party No.3, was   duly proceeded against ex-parte,  vide order of this forum dated 25.10.2012.

4.                Holy Hospital i.e. opposite party No.2 and its Insurance Company i.e. opposite party No.4,  filed their separate replied but these are on identical lines. As above noted, complainant has alleged no negligence or deficiency, of service on their part,so they have  un-necessary been impleaded.  Opposite party No.2 i.e. Holy Hospital  has  pleaded that Shobha Devi,  wife of the complainant,  was admitted in their hospital on 12.9.2006 in very critical and bad condition . She could not regain consciousness,  even after providing proper medical treatment by the attending doctors and  on 19.9.2006 her attendant got her shifted and  admitted in N.C.Jindal Institute of Medical Care & Research Centre i.e. opposite party No.3.

5.                   Opposite party No.1,  field his reply and contested the case of the complainant.  It is pleaded that Smt. Shobha Devi, wife of the complainant,  had been coming to his clinic,  for routine check-ups,  as she was his regular patient since the time of her conception in December,2005. That before this pregnancy, she was heaving only one living child aged about 12 years. That after  the birth of that child. She conceived many times,  but every time she had abortion. That when in December,2005, she conceived, she was told regarding  risk involved,  in  going ahead with  her  pregnancy, due to  high prognosis. She was also explained that she had bad obstetric history of repeated abortions  but Shobha Devi and her husband i.e. complainant,  insisted to continue with her  pregnancy. That on 12.9.2006, she came for check up along with the complainant, when on examination, Ante Partum hemorrhage was found. She was having profuse bleeding per  vagina. Chances  of survival of  foetus were  decreasing. At that stage, condition of Shobha Devi was told  to the complainant and was  advised to arrange blood. Since the complainant was all  alone in the hospital  so he requested the doctor to himself  arrange  blood. That  in the operation theater 4 units of  blood was  arranged and given to her . That under those circumstances, normal delivery was not possible, so operation was done to save her  life  as well as of the foetus. That at that time  a well qualified and trained anesthetist, a  child specialist and General surgeon were called,  with the consent of the complainant,  who was sitting in the operation theater and watching all the procedure. That due to old history of repeated abortions  and excessive loss of blood, Shobha Devi could not stand the shock of the  operation. She had then respiratory problem,  which was managed. That at 6.30 p.m. she was referred to N.C.Jindal Hospital, Hisar i.e. to opposite party No.3  for treatment and intensive care. For it  two staff members  were sent alongwith oxygen cylinder,  with other medicines. However, from N.C. Jindal Hospital, Hisar,  the same day, she was shifted to Holy Hosptial,Hisar i.e. opposite party No.2. That on the next day i.e. 13.9.2006 Dr. Mrs. Raj Prashar,  went to see the patient in Jindal Hosptial, Hisar  and then in Holy Hospital,Hisar. She daily used to go to see the patient. That after some days, the patient  was again shifted to N.C.Jindal Hospital, Hisar,  where she died  on 21.9.2006.

6.              It is further pleaded that complainant Raj Dev Yadav had not even cleared the bills of the Nursing Home and of  the doctors and the doctor also  did not demand any money. Allegations of mis diagnose and manipulating  false history, are  denied. Receipt of legal notice is admitted,  with further pleading that it was duly replied on 15.5.2007.

7.                In order to make out his case,the complainant has filed his own  supporting affidavit. He is also reling upon Annexure-1,(pages no. 1 to 33),  placed on record by opposite party No.2, regarding her medical treatment in Holy Hospital,Hisar.

8.                  Opposite party No.1 has placed on record Ex.R-1 to Ex.R-13,  copies of alleged  medical treatment record of Shobha Devi in his own hospital and  Ex.R-14 his own supporting affidavit.

9.                   Opposite party No.4 has placed on record Ex.R-15 supporting affidavit of its Divisional Manager viz  Sh.I.G. Narayana Swamy and Ex.R-16 copy of the  insurance policy.

10.                  Opposite party No.2 has placed on record Annexure-1(Pages No. 1 to 33) copies of medical treatment record of Shobha Devi in that  hospital from 12.9.2006 to 19.9.2006.

11.                  We have gone through the record of the case carefully and have heard learned counsel for the parties. We are of the considered opinion that there is every merit in this case of the complainant and so it deserves acceptance.

12.                  Undisputedly, Shobha Devi, since deceased, wife of complainant Raj Dev Yadav, was aged about 38 years at the time of her death. She  was carrying full time pregnancy, when on 12.9.2006, she came to the hospital of  Dr. Raj Prashar  i.e of  opposite party No.1,  for her  normal check up and  delivery.  At that time she was admitted in the hospital and was taken to the operation theatre for seizure operation. on the same day,  at about 6.30 p.m., she was got shifted in other hospital in complete  unconsciousness condition. She was  first taken  to N.C.Jindal Institute. At that time her  condition was very  poor and critical. The same day,  for some unknown reasons, she was taken  and got admitted in Holy Hospital i.e. opposite party No.2. Medical treatment record  Annexure-1(pages No.1 to 33) of Holy Hospital,  in this regard is very important to show the condition of Shobha Devi at the time of her admission which  did not improve, despite proper medical treatment,  provided to her in  Holy Hospital. That condition had become in the operation theater of opposite party No.1. Admittedly after about a week, i.e.   on 19.9.2006,   Shobha Devi was  got  referred to N.C.Jindal Institute. There also her condition did not improve and  died on 21.9.2006 at about 6.35p.m.

13.                There is absolutely nothing on record to prove or to presume that  before her taking to the operation theatre of opposite party No.1 she was suffering from any  ailment,  like heart problem etc. or even was bleeding profusely. She had come to routine check up and for normal delivery. She was not even  got ECG or any other medical tests. Even as per the very pleaded case of  opposite party No.1, when  there was profused  bleeding per vagina, only then,  at that stage, the complainant was told regarding her said  serious condition and was advised to arrange blood,  but being all alone in the hospital he  could not arrange blood and  opposite party no.1himself arranged blood and 4 units of  blood was administered to her. It is further pleaded by opposite party No.1 that since  at that  stage, no normal delivery was  possible, so anesthesist,  child specialist and General Surgeon,   were called with the consent of the complainant. All these pleadings of opposite party No.1 itself,  proves complete and gross  medical negligence on his part.  When he, very well knew,  that it was a difficult case  from the very beginning, as was of high prognosis, then he was  supported  to pre arrange  blood and said doctors well prior in time and not at the spur of movement of emergency in the operation theater itself. To our mind it was gross medical negligence on his part if not criminal negligence.

14.               Moreover requiring  poor,  helpless husband, in the operation theatre itself, to arrange blood, who was seeing that condition of his wife especially when the doctor himself was in a position  to arrange blood,  is again not only gross deficiency of service  but is totally unfair trade practice on his part. When the doctor could arrange  blood himself, which he infect did, then there   was no rhyme or reason  for the doctor to ask the complainant to arrange blood.

15.              In the facts and circumstances of the case in hand, to our mind principle of res-ipsa loquitur  is fully applicable proving gross negligence and deficiency of service on the part of opposite party No.1.       Holy Hospital of medical treatment record Annexure-1 is very important, which depicts the actual condition of the patient when she was brought there. She was brought there in the same condition in which she was shifted from the hospital of opposite party No.1. Therein  case history  has been noted as under:-

“Patient brought in unconscious condition with gasping with seizures for ventilator support. Her cesarean with abdominal hystectomy were done by Dr. Raj Prashar. During surgery, patient went in to cardiac arrest and revived. Thereafter, patient shifted for I.C.U. care in Jindal Hospital and there she got seizure and referred here. Patient was ventilated, seizures controlled and tracheotomy(surgical intervention in trachea i.e. lung portion to cure and improve respiratory ailment) done by Dr.Subhash Mittal. Patient still requires I.C.U. care and ventilator support. Patient’s attendant wants to shift the patient to Jindal Hospital. Patient is shifted in ventilator with Dr.Rajesh”.

 

  16.             This shows that during and after operation in the hospital of opposite party No.1, there was cardiac arrest. But she was not a heart patient. It was only due to medical treatment given by opposite party No.1. It points towards the correctness of the case of the complainant that it was due to high dose of anesthesia. 

 

17.              Ofcourse opposite party no.1 has denied administering high dose of anesthesia but this denial is falsified by aforesaid medical record. When Shobha Devi was not earlier heart patient then suffering cardiac arrest,  in all probabilities and as per medical literature it may  be due to high dose of anesthesia. Cardiac arrest is the consequence of administering high dose of anesthesia.

18.              Ld. Counsel for  opposite party No.1 has also contended that complainant  has failed to prove  cause of death  as  high dose of anesthesia,  as there is no post mortem report nor any medical evidence to prove the same. As above discussed and found,  there is no merit in this contention. Principle of res ipsa loquitur is  fully applicable. In the circumstances, it was upon opposite party No.1 to prove, as to how a young healthy lady, aged about 38 years, when was admitted for her  normal delivery, came out from his  operation theater, like a dead corpse.  She then continuously remained as such in  unconsciousness in a very poor and critical condition. So in the circumstances it was upon opposite party No.1 to prove the case of her said state of health and not upon the complainant to prove that death was certainly due to high dose of anaethesia. Even otherwise, as above discussed and found, she had cardiac arrest in the operation theatre of opposite party No.1  so in all probabilities and as per medical literature on the subject it could be because of high dose of anaethesia.

19.                 Ex.R-8 writing of his  surgeon placed on record by opposite party No.1  shows that profuse bleeding per vagina was  from uterine incision.  It proves  that profuse bleeding was due to uterine incision  given in the operation theatre much prior to the reaching of the surgeon as the  surgeon had  come and attended the case in emergency when  called by opposite party No.1,  after taking consent  from the complainant. The surgeon then conducted TAH and TAM and controlled the bleeding. Naturally by that time, much harm, was already  caused  which later on proved fatal.

20.               In these facts and circumstances of the case in hand, ld. Counsel for the complainant, has rightly sought support   from Dr. B.R. Reghupathi and another versus B.Vasantha and others, 2009(5) RCR(Civil),281. This ruling is fully applicable to the facts of the case in hand. In that case, as well, the patient  was not a heart patient; even ECG was not taken before Biopsy, the patient was admitted in the hospital for simple delivery but  died due to cardiac arrest  with allegations of administering high dose of anesthesia.  In those facts,  it is held that principle of res ipsa  loquitur  is applicable and doctor is liable to compensate the family of the deceased.

21.              It is also note worthy that the complainant has specifically pleaded manipulation of false medical treatment and history etc. on the part of  opposite party No.1. Of course,  opposite party No.1 has denied  these allegations,  but to our mind, there seems to be merit and substance in these allegations, bare perusal of Ex.R-1 to Ex.R-7, copies of medical treatment record of  Shobha Devi,  in the hospital of opposite party No.1 placed on record by opposite party No.1,   right from 3.2.2006 to 19.9.2006 i.e of whole pregnancy period,  it  is very clear that writing,  on all these papers  is almost with same pan with  same ink,  written in  same flow of writing,  which are not written in regular course of business.  Ex.R-5 to Ex.R-7 and subsequent medical treatment record from Ex.R-8 to Ex.R-13, was certainly  prepared much after her  discharge from his hospital. Therefore possibility of manipulating the same,  cannot be ruled out.

22.               Pleaded case of the opposite party No.1 that during last 12 years, Shobha Devi  conceived  number of times and every time she had abortion  and that it was a case of high prognosis  could not be substantiated by any reliable cogent or convincing evidence. These are only baseless allegations to come out from his  own wrong. Complainant has specifically denied this case of opposite party No.1 and opposite party No.1 could not lead any evidence to prove it. In this regard it is note worthy that if opposite party No.1,  had even medical consultation  record of full pregnancy period of Shobha Devi, right  from 3.2.2006 onwards, enabling him to place on record its copies as Ex.R-1 to Ex.R-7, then in that eventuality,  and in all  probability, opposite party No.1 also could have,  some record of said serious ailment of Shobha Devi regarding alleged previous pregnancies  and abortions etc. Therefore,  it seems that opposite party No.1 has  simply cooked up a false story in order to come out from his own wrong and the copies of medical treatment record of Shobha Devi of his hospital i.e. Ex.R-1 to Ex.R-9 is not reliable.

 23.             On the other hand,  there is nothing to discredit the  pleaded case of the complainant that Shobha Devi had given birth  to her first child at home,  in easy way,   without suffering any delivery problem.

24.               Ld. Counsel for opposite party No.1 has, however, contended that complainant is not the ‘consumer’ of opposite party No.1 as no fee was charged from him. We do not find any merit in this contention. As per very pleaded case of  opposite party No.1,  shobha Devi wife of the complainant  was a regular patient of his clinic,  since the time of her conception in December,2005 and she had been coming to him for her routine check ups It is further pleaded case of  opposite party No.1 that the complainant did not clear the bills of the Nursing home and of the doctors. It shows that the services being  rendered  to her were not free or charitable but were for valuable consideration. It hardly matters whether the bills were cleared or not.

25.                Ld. counsel for opposite party No.1  has also contended that if death was due to high dose of anaethesia, then anaethesist is liable  and not opposite party No.1. We again do not find any merit in this contention, complainant was admitted and operated upon  in the hospital for her delivery. She was his patient. It was  opposite party No.1  who had arranged anaesthesist, and other doctors while she was in the operation theatre. Therefore, if  anything wrong, happened in his operation theatre  then only he is responsible. Therefore, the complainant has fully proved his  case that opposite party No.1 is guilty of medical negligence and gross deficiency of service on his  part.

26.                   Ld. Counsel for  opposite party no.1 has also contended that complainant   Rajdev Yadav  has already received insurance money from life Insurance Company due to the death of insured Shobha Devi and so now  this complaint,  for compensation  for her death is not maintainable.  We do not find any merit in this contention. Complainant might have received insurance money from Life Insurance policy of the deceased, being her  husband  or nominee  but that insurance of the deceased has  nothing to do, with deficiency of service of opposite party No.1. Said life Insurance Policy of the deceased, would not absolve opposite party No.1 from his own  wrongs

27.              Now in order to calculate due damages,   it is note worthy  to now that Shobha Devi was only  about 38 years in age. She has left behind,  the complainant, her husband and two minor children including the  one who  was newly born. Loss of wife for  young husband and loss of mother of minor children, including new born, truly speaking,  cannot be compensated by way of any quantum of money. Emotional aspect never and  cannot be fulfilled.But monetary loss, of course, can  be got compensated. Hon’ble Apex Court in this regard in Malay Kumar Ganguly Versus Dr. Sukumar Mukherjee and others,2009(4)RCR (Civil),14 has held that loss of wife,  to a husband may always be truly speaking can not be duly compensated,  by way of monetary  compensation. But how one would do it has been baffling the courts for a long time. Therefore, for compensating a husband, for loss of his wife, courts consider the loss of income to the family-It may not be difficult to do, when she had been earning. But even otherwise, a wife’s contribution to the family,  in terms of money, can always be worked out. That every housewife makes contribution to his family which  is capable of being measured, in  monetary terms although emotional aspect of it, cannot be. It depends upon her educational qualification, her own upbringing, status, husband’s income etc.

28.                Here in case in hand there is nothing to show that she was earning. But stills it is not difficult to calculate her contribution towards her husband and towards her family,  in terms of money. It is a matter of common knowledge,  that even services of a  household lady,  for  8 hours a day with one holiday per week,  cannot be fetched for less then Rs.8,000/- per month. Even  a very temporary employed  person on daily wages on D.C. rates usually gets more than Rs.8000/- per month. But services of wife  and mother of the children,  towards her  family,  is of all the  24 hours without any weekly  breake,  so to our mind  her services  in terms of money towards the complainant minor children  cannot be assessed, less then  Rs.10,000/- per month. After deducting  1/3^rd self expenses, her contribution towards the family,  can be safely assessed for a sum of Rs.6500/- per month or  say for Rs.78,000/- per annum. Since she was of about 38 years, in age, and has left behind even a  new born baby so  to our mind, reasonable multiplier should 14. Therefore, calculating  compensation,  on these  basis, it would be sum of Rs.10,92,000/-(78000x14).

29.               Ofcourse, complainant in his complaint has prayed for  compensation of Rs.4,50,000/-, to our mind, it is the duty of this forum to assess actual reasonable compensation, specially,  when  he has also  specifically pleaded that any other relief,  also be granted,  which this forum deems fit. Therefore in the circumstances  as above discussed and found  due  compensation comes to Rs.10,92,000/-.

30.                  Resultantly, this complaint is hereby allowed, with a direction to  opposite party No.1,  to pay a  sum of Rs.10,92,000/- to the complainant, along with interest @ 9% per annum, from the date of filing the complaint  i.e. 9.8.2007 till payment.   Complainant is also hereby awarded litigation expenses of Rs.11,000/- against  opposite party No.1.

31.                Shobha Devi since deceased has left behind her husband and two minor children. Out of two minor children, one was of about 12 years and  other was newly born. Therefore, in the circumstances, it is ordered that aforesaid amount shall be divided among said three LRs. Husband shall be entitled for 25%, elder son would be entitled for 35% and newly born baby would be entitled for remaining 40%. Share of the minors shall be deposited in their respective fixed deposit receipts in some Nationalized Bank for   maximum rate of interest,  till they  attained maturity. Specific instruction be given to the bank issuing FDR, not to release the amount to them   till they attain maturity.

Announced.                                                

23.1.2015