BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM RAICHUR.<br /> <br /> COMPLAINT NO. DCFR. 29/07.<br /> <br /> THIS THE 19TH DAY OF MAY 2008.<br /> <br /> P R E S E N T<br /> <br /> 1. Sri. N.H.Savalagi, B.A.LLB. (Spl) PRESIDENT.<br /> 2. Sri. Gururaj, B.com.LLB. (Spl) MEMBER.<br /> 3. Smt. Pratibha Rani Hiremath,M.A. (Sanskrit) MEMBER.<br /> *****<br /> COMPLAINANT :- 1) Basavaraj Siddareddy S/o. Rajashekhar, <br /> Age: 24 years, Occ: Employee in District Court, Raichur R/o. H.No. 1-4-1028/179 IDSMT Layout, Raichur.<br /> <br /> 2) Srikanth Siddareddy S/o. Rajashekhar, Age 23 years, Occ: Student R/o. H.No. 1-4-1028/179 IDSMT Layout, Raichur.<br /> <br /> 3) Lingaraj Siddareddy S/o. Rajashekhar, Age 22 years, Occ: Student R/o. H.No. 1-4-1028/179 IDSMT Layout, Raichur.<br /> <br /> //VERSUS//<br /> <br /> RESPONDENTS :- 1) Gokul Meternity & Nursing Home, near <br /> Raghavendraswamy Temple, Jawahar Nagar, Raichur by its proprietor Dr. H.Vadhiraj.<br /> <br /> 2) Dr. H. Vadhiraj S/o. Seshegagirirao Havaldar, Age 61 years, Medical Practitioner, Gokul Metarnity & Nursing Home, Near Raghavendraswamy Temple, Jawaharnagar, Raichur.<br /> <br /> 3) Miss. Prajeetha, Staff Nurse, Gokul Metarnity & Nursing Home, Near Raghavendraswamy Temple, Jawaharnagar, Raichur.<br /> <br /> 4) The Oriental Insurance Company Raichur Branch City Talkies Road Raichur by its Branch Manager.<br /> <br /> <br /> <br /> <br /> CLAIM :- For compensation of Rs. 17 Lakh with interest <br /> at 12% p.a. from the date of complaint and for awarding payment of Rs. 2 Lakh towards damages and for payment of cost of proceedings.<br /> <br /> Date of institution :- 03-04-07.<br /> Notice served :- 11-05-07.<br /> Date of disposal :- 19-05-08.<br /> Complainant represented by Sri. M. Nagaraj, Advocate. <br /> Respondent No- 1 & 2 represented by Sri. D.Suresh, Advocate.<br /> Respondent NO-3 Absent.<br /> Respondent NO-4 represented by Sri. Vikram Nair, Advocate.<br /> -----<br /> This case coming for final disposal before us, the Forum on considering the entire material and evidence placed on record by the parties passed the following.<br /> <br /> JUDGEMENT<br /> <br /> This is a complaint filed U/s. 12 of Consumer Protection Act by the complainants-Basavaraj Siddareddy & two others against (4) Respondents- (1) Gokul Maternity and Nursing Home Jawaharnagar Raichur by its proprietor/Respondent No-2-Dr. H.Vadhiraj Medical Practitioner Gokul Maternity Nursing Home Jawaharnagar Raichur (3) Miss Prajeetha Staff Nurse of said Maternity Nursing Home and (4) Oriental Insurance Company Branch Raichur seeking compensation for the medical negligence. Respondent No- 1 & 2 appeared through their counsel and filed written version denying the claim of the complainants. Respondent No-3 remained absent and placed Ex-parte. Respondent No-4 Insurance Company appeared through counsel and filed written version denying the claim of the Respondent NO-1 & 2 and the complainants.<br /> 2. During the course of enquiry the complainants have filed sworn affidavit of complainant No-1 by way of examination-in-chief for and on behalf of complainants 1 to 3 as PW-1 reiterating the contents of the complaint. There apart complainants have also filed sworn affidavit of one Dr. Santoosh Patil Medicdl Practioner Adarsh Nagar Metpally District Karim Nagar (AP) by way of examination-in-chief as PW-2. In rebuttal Respondents 1 & 2 have filed sworn-affidavit of Respondent No-2 by way of examination-in-chief reiterating the contents of written version. Respondent NO-4 Insurance Company has filed sworn affidavit of its Manager by way of examination-in-chief reiterating the contents of written version of Respondent NO-4. On behalf of complainants (16) documents at Ex.P-1 to Ex.P-16 have been got marked. On behalf of Respondent NO-1 & 2 (3) documents at Ex.R-1 to Ex.R-3 have been got marked. On behalf of Respondent No-4, (2) documents have been got marked at Ex.R-4 & Ex.R-5.<br /> 3. Heard the arguments of counsel for respective parties. Perused the records. The following points arise for our consideration and determination:-<br /> 1.Whether the complainants prove medical negligence and deficiency in service by the Respondents 1 to 3 as alleged.?<br /> <br /> 2.Whether the Respondent No-4 is liable to indemnify to <br /> Respondent No-2 under the policy, as alleged.<br /> <br /> 3.Whether the complainants are entitled for the reliefs sought <br /> for?<br /> 4. Our finding on the above points are as under:-<br /> 1) In the affirmative. <br /> 2) In the affirmative.<br /> 3) As per final order for the following.<br /> REASONS<br /> POINT NO.1:-<br /> 5. The facts leading rise to the complaint may be summed up as under:-<br /> The Respondents 1 to 3 are providing Medical services for consideration like surgical facility delivery and all other allied medical services to im-patients and out patients. The complainants 1 to 3 are the sons of late Rajashekhar and Sudhakshi @ Sudhakshamma. On 24-02-07 complainants admitted their mother Sudhakshamma to the Respondent No-1 Gokul Maternity & Nursing Home for Laparoscopic Hysterectomy and she undergone operation on 25-02-07 at 8-00 PM in the said hospital by the group of doctors called by Respondent NO-1 and also assisted by Respondent No- 2 & 3. On 26-02-07 the mother of the complainants complained of burning sensation in her chest and stomach. They and other family members who were attending on her informed to Respondent No-2. The Respondent No-3 in consultation with Respondent No-2 administered intravenous injection namely Panthathol Sodium 500 mg. as a result of which their mother Sudhakshamma become un-conscious with breathing problem. The complainants & other members started weeping and crying. Respondent No-2 came near the patient Sudhakshamma and put her under ventilation and asked to shift her to OPEC Hospital, Raichur for further needful management. As per the advise of Respondent No-2, they & other members left Respondent NO-1 hospital at about 10-00 AM and reached OPEC Hospital within 15 minutes. The Medical Officer at OPEC Hospital told them that they have brought dead body of Sudhakshamma.<br /> Respondent No-3 on the advise of Respondent NO-2 wrongly administered injection Panthathol Sodium 500 mg. which is a general anesthetic which should be used only in Operation Theatre by Anaesthetist. Soon after the administration of injection Sudhakshamma fell un-conscious with a Cardio Vascular Respiratory depression and last her breath at the place of Respondent No-1 hospital. All the Respondents in-order to protect their mistake and negligence having knowledge of death of Sudhakshamma in their hospital, put her dead body under ventilation by providing oxygen and asked the complainants & other members to shift her to OPEC Hospital for better treatment in order to make them believe that Sudhakshamma believe and in order to protect themselves (Respondents) from legal punishment and to pay damages and also with intention to disappear the evidence.<br /> Respondent NO-2 used to conduct several operations on rotation but they have not appointed any duty doctor to attend to take Post Operative Care of the operated patients in particular and other patients in general. On the contrary Respondent No-2 leaving all the patients used to go to Navodaya Medical College, Raichur as an employee whenever his clashes were there. Respondent No-3 is a staff nurse employed by Respondent No- 1 & 2 to attend the patients who is not qualified and not registered under provisions of Indian Nursing Council Act. The Injection Panthathol Sodium 500 mg. is aneasthesia which is to be used only by Anaesthetist which is not made available in all the retail Medial Stores and it will be provided only on prescriptions of the doctor who are conducting operations. Keeping this medicines along with other medicines outside the operation theatre shows negligence of the Respondents which resulted in the death of Sudhakshi. Respondent No- 2 & 3 have admitted the administration of wrong injection i.e, Panthathol Sodium 500 mg I.V. instead of injection Panthodec I.V. which caused the death of their mother Sudhakshamma and this amounts to negligence in their duties for which Respondent No-1 hospital is also responsible for the acts of its employees. A complaint in that regard having been filed with concerned police. Therefore all the Respondents 1 to 3 are liable jointly and severally to pay compensation and damages. <br /> Complainants’ father died in the year 2000 and after his death their mother Sudhakshi aged about 42 years used to get pension of Rs. 4,593/- PM and the same is used for welfare and for the education of complainants. Due to unfortunate death of their mother for negligence of the Respondents the complainants lost their dependency and they are deprived from love & affection of their mother and there are no male or female elders to look after them. The death of Sudhakshi has taken place only due to medical negligence of Respondent No.1 to 3 by administration of wrong injection which amounts to deficiency in their service. This fact is also confirmed by the medical opinion. Hence they are liable to pay compensation. Respondent No-1 is negligent in discharging duties and rendering the services to the patients admitted in the hospital, it has neither appointed a qualified duty doctor to take post operative care for the patients who have undergone surgery in that hospital. It had not employed a qualified nurse as required under the law to take care of patient under-going treatment. It had also not taken care to provide safe custody of H & L drugs and had allowed free excess to such drug by unauthorized person. Thus all these matters resulted in their deficiency in service to the patient. Hence for all these reasons the complainants have sought for compensation of Rs. 17 Lakh with interest at 12% p.a. from the date of complaint and for awarding payment of Rs. 2 Lakh towards damages and for payment of cost of proceedings.<br /> 6. In response to service of notice Respondent No-1 & 2 appeared through their counsel. Respondent NO-3 remained absent in-response to service of paper publication of notice and so has been placed as Ex-parte.<br /> 7. Respondent No- 1 & 2 have filed their common written version/statement contending that the alleged incident has taken place when Respondent NO-2 was not in the Respondent No-1 Nursing Home and as such under no circumstance any claim on any grounds can be maintained against Respondent No-1 & 2. The complaint has been field by twisting the real facts to suite the designs to harass Respondent No- 1 & 2 and to make money gain. Respondent No-1 over the years of its existence has earned goodwill and appreciation not only by general public but also those who have taken treatment in the Nursing Home and got discharge after getting cured of their ailments. The Nursing Home has facilities for undertaking for medical treatment for variety of all ailments. The Respondent NO-2 is a qualified and experienced doctor and treats his patients on the well established & accepted medical line for treatment after thorough investigation about the nature of illness. He is a caring and careful doctor. <br /> Late Sudhakshamma was operated upon previous day morning by one Dr. B.Ramesh of Bangalore a famous and highly qualified & experienced surgeon who conducts Laparsocopic surgeries and who visits Raichur for every month. She under went successful surgery and remained in Respondent No-1 Nursing Home for post operative care. On the night of the day of operation, Respondent No-2 checked and found all her parameters normal and she had no problems or complications of any kind. On the next day morning again at about 8-30 AM Respondent NO-2 doctor accompanied by staff nurse by name Suma checked the patient Sudhakshamma and again found all the parameters normal and she complained no problems. She was advised to continue to have only liquid diet and being satisfied about her post operative recovery. The Respondent NO-2 left for Navodaya Medical College Raichur where he is a lecturer and teaches for two hours every day there as usual.<br /> While Respondent No-2 was at Navodaya Medical College at about 9-30 or 9-45 AM he received a phone call from Respondent NO-1 Nursing Home informing him that a problem has arisen in the Nursing Home and to come urgently. The Respondent NO-2 abruptly left the college and by the time he came back to Respondent NO-1 Nursing Home he noticed that the patient Sudhakshamma was being shifted to OPEC Hospital Raichur accompanied by one Dr. Nandan Padashetty Anaesthetist and the ambulance left for OPEC Hospital Raichur. On enquiry with Nursing Staff he was told that the patient Smt. Sudhakshamma suddenly developed breathing problems and Dr. Nandan Padashetty was immediately called, who on coming found the condition of the patient require immediate ventilator facility which was available only at OPEC Hospital, Raichur and arranged for shifting. This Respondent No-2 is not at all responsible in any manner for the death of Sudhakshamma and the unfortunate event was not due to any medical negligence or any kind of negligence on the part of Respondent No-2.<br /> The complainants have made false allegations that this Respondent NO-2 was present in Nursing Home at the relevant time and he had given instructions to the nurse/Respondent NO-3 to give the drugs “Sodium Panthathol” to the deceased and that on his instructions only the said drug was administered. These false facts are stated to suit the filing and maintaining of false complaint. The complainant has also falsely alleged that Sudhakshamma died before she was shifted to OPEC Hospital in the Nursing Home itself. This Respondent reiterates that the patient-Sudhakshamma was normal and all her parameters were normal and she had no problems when she was checked during morning rounds taken of patient by this Respondent NO-2 along with staff nurse Smt. Suma and that this Respondent had not given any directions to give the drugs “Sodium Panthathol” to the patient and he had no occasion to do so. It is also false that nurse Prajeetha gave the drug on his instructions. Hence there is no case of any deficiency of service in the medical treatment of patient. It is an unfortunate event which occurred in the absence of this Respondent No-2 and for which this Respondent is in no way concerned and in no way he can be held responsible. Hence Respondent No- 1 & 2 are not liable to pay any money as claimed.<br /> 8. It is worth-while to note here itself that during the course of enquiry of this case, the Respondents 1 & 2 moved I.A.No-1 for impleading Oeriental Insurance Company (Respondent No-4) that in the event of any award against Respondent No- 1 & 2, as per the contract of Indemnity between Respondent No- 2 and proposed Respondent No-4 the same has to be paid by the said Insurance Company and without the participation of said Insurance Company the proceedings will not be conclusive.<br /> After hearing I.A.No-1 and objections filed by proposed Respondent No-4 this Forum allowed I.A.No-1 and accordingly Insurance Company the proposed Respondent No-4 has been im-pleaded as Respondent-4.<br /> 9. Respondent No-4 Oriental Insurance Company has filed written version contending that there is no deficiency of service on the part of this Respondent No-4 so as to make out the case under the provisions of C.P. Act hence it is liable to be dismissed against this Respondent. The present complaint is bad for mis-joinder of parties. This Respondent is not at all a necessary party. The rights and liabilities of the parties relating to the nature and extent of insurance policy are subject to the terms and conditions and limitations contained in the contract of Insurance policy and not beyond that. The liability of the Insurer is to indemnify the insured in certain cases, when the insured become liable but not in all the cases. The Insurance policy in question does not cover the risk for bodily injury or death caused by a staff of hospital muchless a nurse. Consequently this Respondent No-4 is not liable to indemnify Respondent No-2 in the event of complaint being allowed and no liability can be fastened of this Respondent. The policy is a Doctors indemnity policy and not the hospital indemnity policy it does not cover the risk of negligence of the staff.<br /> Without prejudice to the defence it is submitted that the death of the deceased as discussed from the complaint is due to administration of injection “Pantathol Sodim 500 mg” which is a general Aneasthesia by unqualified person without authority which amounts to a criminal act. Consequently this Respondent is not liable to indemnify the Respondent NO-2 in the event of complaint being allowed. The complaint is bad for non-joinder of necessary parties as the deceased Sudhakshamma was operated on 26-02-07 by one Dr. B.Ramesh. The said doctor is also a necessary party and insurance policy does not cover over the risk of the operation conducted by the said doctor as such the policy issued in-respect of Respondent No-2 does not cover the risk for the death of Sudhakshi.<br /> The Insurance policy issued to Respondent No-2 is not a medical establishment policy nor Respondent NO-2 has paid any extra premium to cover for claim arising out of bodily injury or death of any patient caused by or alleged to have been caused by errors or negligence in professional service by any other doctors or staff or Nurse working in the insured. Consequently this Respondent No-4 is not liable to indemnify Respondent NO-2 in the event of complaint being allowed. The drug injection “Panthathol sodium 500 mg” is a general Anaesthetist and only a qualified anesthetic has got excess to the above medicines and the same has been kept in the operation theatre by Aneathesist and it is mandatory that the above medicine can be administered exclusively by Anaesthetist and every care and precaution has to be taken that the drug is given in the right doze and with availability of oxygen and air way ventilation, management equipment system and the administration of drug by any other person muchless nurse amounts to criminal act and violation of mandatory provision which is a breach of policy condition. So this Respondent is not liable to indemnify Respondent NO-2 in the event of complaint being allowed.<br /> Without prejudice to the defence it is submitted that the claim of the complainants are highly exaggerated and excessive and the same is not supported by any documents. There is no cause of action. Hence for all these reasons Respondent No-4 has sought for dismissal of the complaint against him.<br /> 10. Respondents 1 & 2 have also filed additional written statement/version in-view of impleading of Insurance Company Respondent No-4. It is contended by them that under professional indemnity policy No. 422901/48-2007/155 he has insured himself and the Respondent No-1 hospital with the Oriental Insurance Company Ltd., Respondent NO-4. In the event of any award the same has to be paid by the said Insurance Company. The patient Sudhakshamma who was referred to OPEC Hospital died after she left their hospital. Subsequently she was buried in her native place. Thereafter the complainants were ill advised by certain vested interests who have vengeance against this Respondent to prosecute him. Under the circumstance a criminal case in FIR No. 35/07 came to be registered at Netaji Nagar PS Raichur. Thereafter the Investigation Officer has exhumed the body and post mortem was conducted. The body was exhumed through qualified doctor to find out the reason for the death and the reasons for the said death appears to be NIL. Hence the complainants are deliberately suppressing the said material before this Forum. The patient Sudhakshamma was treated properly under all care and caution. The operation was conducted on her by famous Gynaecologist Dr. B. Ramesh Bangalore. The patient died on 26-02-07 at 10-00 AM. And at that time this Respondent doctor was at Navodaya Medical College where he was working as Assistant Professor in Gynaecology as there was inspection by the officers of MCI in the said college the Respondent being the speaks person of the said college he was associating with the said course. The actual cause of death of late Sudhakshamma could not be ascertained by this Respondent since she was shifted from his Hospital to OPEC Hospital by the time this Respondent came back from Navodaya Medical College. On that day this Respondent was in Navodaya Medical College since 8-30 AM till he received information regarding critical condition of the patient from the Anaesthetist Dr.Padashetty who was already treating her. The actual reason for death of Sudhakshamma is not known as this Respondent had no occasion to test the patient. The allegation that Panthathol Sodium 500 mg. injection was administered on the patient is also not admitted. This Respondent has not instructed any staff nurse or doctors to administer such an injection on the patient late Sudhakshai.<br /> Under the duress and force the complainants with the support at least 30 to 40 people, have taken signature of this Respondent on blank papers on 26-02-07 which this Respondent had signed and other-wise there was a threat to his life. This Respondent has informed the said matter to the police immediately thereafter and they assured him that the papers will be collected back. Subsequently on 02-03-07, when the FIR came to be registered after pre planning by the complainants in order to extract money from this Respondents but the police failed to seize the papers signed by him. It is for the I.O. to produce the proof the said document. This Respondent is not responsible for the cause of death of Sudhakshi. <br /> The Panthathol Sodim Injection is meant for aneasthesia which is normally administered on patients by Anaesthetist themselves. It is generally accepted medicine suggested by Pharmaceutical industry and it is the subject matter pertaining to the aneasthesia which will be usually administered by competent Anaesthetist on the patients. The cause of death of patient cannot be attributed for administration of Panthathol Sodium 500 mg injunction. This Respondent had no occasion to recommend the said injunction also. How the complainants have come to now about the administering the said injection and how and on what basis they are claiming the reason for the death of the patient Sudhakshamma on account of administration of this particular injection. The complainants cannot prove that the death is occurred only on account of this injection alone. This Respondent No-2 had no occasion to go through post mortem report subsequent to exhuming the body after burial. In-fact if the complaints allegations are true then in the Post mortem report the reason for death ought to have been mentioned. But it is not so. Hence the complainants have deliberately suppressed the fact regarding exhuming the body. The above proceedings is filed by the complainants to black mail this Respondent to extract money. This black mail tactic is generated in the minds of the complainants after they were supported by a mob to prosecute this Respondent as he is well placed in society and has got the name & fame.<br /> 11. There is no dispute that Respondent NO-3 Nurse-Prajeetha was working as staff-nurse in Respondent No-1 hospital under Respondent NO-2 at the time of alleged incident. It is also not in dispute that the operation of Lapraoscopic Hystrectomy undergone by late patient on 25-02-07 was successful. <br /> 12. The dispute according to the complainants is regarding medical negligence at post-operative stage. It is the case of the complainants that on 26-02-07 their mother patient Sudhakshamma complained of burning sensation in her chest and stomach. They & other family members who were attending on her informed to Respondent No-2. The Respondent No-3 in consultation with Respondent No-2 administered intravenous injection namely ‘Panthathol Sodium 500 mg’. as a result of which their mother Sudhakshamma become un-conscious with breathing problem. The complainants & other members started weeping and crying. Respondent No-2 came near the patient Sudhakshamma put her under ventilation and asked to shift her to OPEC Hospital, Raichur for further needful management. As per the advise of Respondent No-2, they and other members left the Respondent NO-1 Gokul Maternity & Nursing Home at about 10-00 AM and reached OPEC Hospital within 15 minutes. But the Medical Officer at OPEC Hospital told them that they have brought dead body of Sudhakshamma.<br /> It is also their case that Respondent No-3 on the advise of Respondent NO-2 wrongly administered injection ‘Panthathol Sodium 500 mg’. which is a general Anesthetic which should be used only in Operation Theatre by Anaesthetist. Soon after the administration of injection Sudhakshamma fell un-conscious with a cardio vascular respiratory depression and last her breath in the hospital of Respondent No-1. But all the Respondents in-order to protect their mistake in negligence and having knowledge of death of Sudhakshi in their hospital, put her dead body under ventilation by providing oxygen and asked the complainants and other members to shift her to OPEC Hospital for better treatment in order to make them believe their mother Sudhakshamma is alive and in order to protect themselves (Respondents) from legal punishment and to pay damages and also with intention to disappear the evidence. So according to complaint Respondent NO-2 was present when the incident took place and Respondent No-3 in-consultation with Respondent No-2 administered regarding Panthathol Sodium 500 mg injection as a result of which the patient became unconscious etc.,<br /> 13. But Respondent No- 1 & 2in Para-3 of the written version have contended that the alleged incident has taken place when the Respondent No.2 was not in the Nursing Home. Further in Para-6 & 7 of the written version they have contended that on the night of the day of the operation the Respondent No-2 checked and found of her/patient parameters normal and she had no problems or complications. On the next day morning again at about 8-30 AM Respondent NO-2 doctor accompanied by staff-nurse by name Suma checked the patient Sudhakshamma and again found all the parameters normal and no complaint of any problems. She was advised to continue to have only liquid diet and being satisfied about her post operative recovery the Respondent NO-2 left for Navodaya Medical College Raichur where he is a lecturer and teaches for two hours every day there as usual.<br /> It is their further case that while Respondent No-2 was at Navodaya Medical College, at about 9-30 or 9-45 AM he received a phone call from Respondent No-1 Nursing Home informing that a problem has arisen in the Nursing Home and to come urgently. The Respondent NO-2 abruptly left the college and by the time he came back to Respondent NO-1 Nursing Home, he noticed that the patient Sudhakshamma was being shifted to OPEC Hospital Raichur accompanied by one Dr. Nandan Padashetty Anaesthetist and the ambulance left for OPEC Hospital Raichur. On enquiry with Nursing Home Staff he was told that the patient Smt. Sudhakshamma suddenly developed breathing problems and Dr. Nandan Padashetty was immediately called who on coming found the condition of patient require immediate ventilator facility which was available only at OPEC Hospital, Raichur and arranged for shifting. <br /> 14. From averments in Para- 6 & 7 of the written version it shows that Respondent No-2 doctor was not present at the time of alleged incident. Except the bare contention that in consultation with Respondent No-2 doctor the Respondent NO-3 nurse administered intravenous injection namely ‘Panthathol Sodim 500 mg’, the complainants have not substantiated this allegation by any material particular. On the contrary the documents produced by complainant themselves at Ex.P-2 = Ex.R-2 disclose that on 26-02-07 at about 9-30 AM when the patient complained of Epigostic and retrosternal burning sensation, Miss Prajitha Respondent No-3 has attended the patient and has given injection ‘Pantathol Sodium 500 mg' I.V’. instead of injection ‘Panthodec I.V’. by mistake for which the patient had developed difficulty in breathing and for which anesthetic Dr. Nandan Padashetty was informed who immediately saw the patient and found to be epnic condition etc., the patient did not improve and she was shifted to OPEC Hospital for higher treatment. Further this document at Ex.P-2 does not disclose that Respondent No-3 nurse has given injection ‘Panthathol Sodium 500 mg’ at the advise of/in-consultation with Respondent NO-2 doctor. Further-more Respondent No- 1 & 2 have also produced a statement given by Miss Prajeetha/Respondent No-3 staff nurse stating that on 26-02-07 at about 9-30 AM by mistake she has given the injection Panthathol Sodium 500 mg I.V. to the patient Sudhakshamma instead of injection Panthodec I.V. and without asking the doctor she has administered this injection on her own decision. Of course this Respondent NO-3 nurse has remained absent in-spite of service of notice given by paper publication. <br /> Added to this the complainants in Para-8 of their complaint among other things have contended that Respondent No-2 by leaving all the patients in Respondent No-1 hospital used to go as an employee to Navodaya Medical College, Raichur whenever his classes were there. This averment corroborates the contention of the Respondent No-1 & 2 in the written version, that on the date of incident the Respondent No-2 as usual had left the Respondent NO-1 hospital for Navodaya Medical College, Raichur where he is working as a lecturer. There apart Respondent No-1 & 2 have produced a certificate issued by Navodaya Medical College Hospital & Research Center Raichur dt. 19-04-07 at Ex.R-1 which states that Dr. H.Vadhiraj (Respondent No-2) was present in Navodaya Medical College Raichur on 26-02-07 from 8-45 A.M. onwards as per their records. So this document at Ex.R-1 speaks that Respondent NO-2 doctor was in the Navodaya Medical College from 8-45 AM onwards on 26-02-07. So the contention of the complainants that this doctor Respondent No-2 was present in the Respondent No-1 hospital at the time of incident and at his instructions/advise only the Respondent No-3 nurse administered the said injection ‘Panthathol Sodium 500 mg I.V’. does not stand to the reason. It would be further so when the certificate in the shape of statement of Respondent No-3 produced by the complainants at Ex.P-2 = Ex.R-2 and self made statement of Respondent No-3 Prajeetha produced by the Respondent No- 1 & 2 at Ex.R-3 does not tag Respondent No-2 for having advised or instructed for administering Injection ‘Panthathol Sodium 500 mg’. It would be more-so when there is no allegation or dispute of qualification and experience of the Respondent No-2 doctor in treating to his patients on well established and accepted medical line of treatment after thorough investigation about the nature of illness as submitted by Respondent No-1 & 2.<br /> 15. But merely because Respondent NO-2 doctor was out of Respondent No-1 hospital at the time of alleged incident, he cannot escape or shirk his responsibility for the wrong done by his staff nurse (Respondent No-3) who was under his employment under the doctrine of vicarious liability. Admittedly Respondent No-3 Prajeetha was working as Staff Nurse in Respondent No-1 Hospital employed under Respondent No-2. Even though the Respondent No-2 doctor was out of Respondent No-1 hospital at the time of the alleged incident, but for the wrong done by Respondent No-3 in giving injection of ‘Panthathol Sodium 500 mg’ instead of ‘Panthathol Sodium 500 mg’. The Respondent NO-2 doctor is liable for the consequences of the wrong done by his employee nurse/Respondent No-3. This our view is supported by the decision of Hon’ble Supreme Court reported in 1986-99 COSUMER 3758 (NS) in M/s. Spring Meadows Hospital and another, V/s. Harjot Ahluwalia & another, relied on by the L.C. for the complainant vide Head Note (A) which interalia reads as under:-<br /> A) Consumer Protection Act, 1986__Section2(1)(d) and 14(1)(d)__consumer__medical negligence__compensation__nurse wrongly injected minor patient with lariago injection of high dose__cardia arrest__delay in reviving of heart__extensive damage to brain__child reduced to vegetative state__claim__National Commission concluded clear derelection of duty and negligence on the part of the nurse and the doctor__awarded compensation of Rs. 12.5 lacs to the minor and Rs. 5 lacs to the parents for mental agony.”<br /> <br /> 2) Hon’ble National Commission reported in II (2003) CPJ 125-Dr. K.G. Krishnan V/s. Praveen Kumar (Minor) Head Note which reads as under:-<br /> Consumer Protection Act, 1986__Section2(1)(b)__Medical Services__Negligence in giving intra muscular injection__Sciatic nerve of minor damaged, leg became paralysed__ Compensation awarded by Forum, upheld in appeal__Hence revision__Contention, complaint bad for non-rejoinder of nurse who administered injection__Contention not acceptable__Doctor being employer of nurse vicariously liable for treatment given, liable to pay compsnation awarded by lower forums.”<br /> <br /> 3) Andhra Pradesh State Commission reported in I (2004) CPJ 329-P.Sudhakar V/s. Gowri Gopal Hospital Head Note and Para-13 which reads as under:-<br /> Consumer Protection Act, 1986__Section 2(1)(g)__Medical Services__Deficiency in service__Complainant’s son having stomach pain, diagnosed ‘Acute Appendicitis’, immediate surgery advised__Injection ‘Fancuran’ administered by Sister mistaking it for analgesic__Patient went into total muscular paralysis cyanosis and Brady cardia, died__Sheer negligence proved__Ops (hospital, doctor, sister) jointly and severally liable to pay compensation.”<br /> <br /> PARA-13<br /> The third opposite party is an employee under the first opposite party hospital. Hence the first opposite party hospital is vicariously liable.”<br /> <br /> 16. Nextly it is contended by the complainants that Respondent No-2 use to conduct several operation on rotation but they have not appointed any duty doctor to attend and to take post operative care of the operated patient. On the contrary Respondent NO-2 by leaving all the patient used to go to Navodaya Medical College Raichur as an employee whenever his clashes there. Respondent No-3 as staff nurse to attend the patient is not a qualified and not registered under provisions of Indian Nursing Council Act. Respondent No-2, as seen above, admittedly was working as part time lecturer in Navodaya Medical College. It is not the case of Respondent NO-1 & 2 that there is a duty doctor to attend the patient in general and the post operative patient in particular whenever the Respondent No-2 doctor was out of hospital. Even the Respondent No-2 has not produced any piece of evidence to show that Respondent No-3 nurse working under him is a qualified under the provisions of Indian Nursing Council Act. This in-turn go to show that the Respondent No-1 Nursing Home was not having a duty doctor or qualified nurse so as to take care of the in-patient in hospital during the absence of Respondent No-2. This is also a circumstances of medical negligence. This our view is supported by the decision of our Hon’ble National Commission reported in I (2007) CPJ 61 (NC) E.S.I. Hospital (Medical Officer & another V/s. Ranjit Kumar Das & others) Head Note which reads as under:-<br /> Consumer Protection Act, 1986__Section2(1)(g) Medical Negligence__ESI Hospital__No doctor on duty at relevant time__Patient suffering from severe pain in abdomen__As per material, no treatment or medicine administered despite patient being diagnosed with severe abdomen pain__Instead she was directed to approach some other ESI hospital__Further, no doctor on duty when patient with her husband reached at 6.30 a.m.__Duty doctor came only from 8.00 a.m. onwards__Complete failure on part of O.P. to perform “duty of care” expected from professional doctor as well as hospital__Deficiency in service and medical negligence proved__Compensation awarded”.<br /> <br /> 17. The complainants have produced medical opinion at Ex.P-8 issued by one Dr. Santosh Patil MBBS D.A. of Metpally, in Karim Nagar District (AP). From a perusal of this it shows that the Dr. Santosh Patil is of the opinion that the patient Sudhakshamma was given injection Panthathol Sodium 500 mg I.V. instead of injection Pantodec in the ward by Nursing Staff without the knowledge of the drug and in the absence of Anaesthetist and non-availability of oxygen and Airway ventilation management equipment which has caused immediate cardiac vascular respiratory depression leading to cardio respiratory arrest culminating in the death of patient Sudhakshamma. According to him this Panthathol Sodium 500 mg is a general Aneasthetic which should be used exclusively in the operation theatre only by Anaesthetist and with availability of oxygen and Airway ventilation management equipment. This Panthathol Sodium 500 mg injection causes cardio vascular and respiratory depression resulting in cardio respiratory arrest and death of the patient. <br /> 18. The complainants have also produced letter of District Surgeon District Hospital, Raichur dt. 16-05-07 addressed to the Circle Inspector of Police East Circle, Raichur at Ex.P-11. This letter is a clarification regarding drug injection Panthathol Sodium 500 mg and the District Surgeon has given his opinion on the basis of opinion given by Dr. G. Amarapa and Dr. M.A. Kaleem Siddiqui Anaesthetists of his hospital. According to him the Panthathol Sodium 500 mg is an intravenous anaesthetic drug having 500 mg strength. It is used as Anaesthesia induction agent in the doses of 5-6 mg per KG body weight. It is also used in other conditions in smaller doses in epiplepsy, etc., Narco Analyses. It is to be given by an Anasthesiologist in case of induction of Anaesthesia for other indication qualified doctor who can resucitate and facility for CPR is they can give the drug i.e, (Cardio Pulmonary Resueitation CPR). The lethal doses of Panthathol Sodium 500 mg is more than 1000/- mgs ( 1gm). Referred Book “PARIKHS TEXT BOOK’ of Medical Jurisprudence and taxicology by Dr. C.K. Parikhs Vth Edition 1990 page 884. It can be kept along with other drug but universal precaution should be taken. <br /> 19. Complainants have also produced one more letter dt. 11-06-07 of Dr. P.R.Patil Medical Officer Deodurga addressed to Police Circle Inspector East Circle, Raichur at Ex.P-12 regarding cause of death due to Panthathol Sodium. In this letter Dr. P.R. Patil has stated that as per the District Surgeon’s Report regarding clarification of drug injection Panthathol Sodium, signed by Anesthesiologists Dr. G. Amarappa and Dr. M.A. Kaleem Siddiqui, it is possible that the cause of death could be due to the lethal dose of Panthathol Sodium 500 mg injected more than 1000 mg (1gm). The person may die if lathal dose is injected. <br /> Ex.P-13 is another letter of Dr. P.R. Patil dt. 24-12-07 addressed to CPI East Circle Raichur regarding opinion as to cause of death of Smt. Sudhakshamma. This letter shows that as per the case records it is observed that the drug was given by the Sister to the post operative patient which is not a prescribed drug. As per the case sheet records it is observed that after administering this drug the patient Sudhakshamma became restless and died and they are of opinion that giving Panthathol Sodium 500 mg I.V. to the post operative patient is lathal and might have caused her death. <br /> The complainants have also produced a copy of Show Cause Notice at Ex.P-15 issued by Registrar Karnataka Medical Council, Bangalore to the Respondent No-2 Dr. H.Vadhiraj as to why disciplinary action should not be taken against him under the provision of Karnataka Medical Council Act and has been directed to appear before the Karnataka Medical Council on 29-11-07 along with documentary evidence if any and legal assistance if so desire. <br /> 20. From the above referred medical opinion/letters and as rightly argued by the L.C. for the complainants, that the drug injection Panthathol Sodium 500 mg is a general Anaesthetic and only Anaesthetist has got excess to this medicine and it should be kept in the operation theatre by the Anaesthetist. It is mandatory that this medicine can be administered exclusively by an Anaesthetist and every care and precaution has to be taken that this drug is given in the right dose and with availability of oxygen and airway ventilation management equipment system. So keeping of this injection drug along with other medicines/drugs outside the operation theatre shows negligence in not taking precaution in using this drug, especially when it shows that this Panthathol Sodium 500 mg I.V. was given instead of injection panthadec I.V. as revealed from the complaint and the self made statement of Respondent No-3 at Ex.R-3. Admittedly this patient Sudhakshi died in the Respondent No-1 hospital as could be seen from the certificate issued by Respondent No-2 doctor at Ex.P-4. This means the death of the patient was due to the administering the injection of Pantathol Sodium 500 mg. This amply shows medical negligence and dereliction of duty by the Respondent No- 1 to 3. <br /> Hence for our above discussion we have no hesitation to hold that the complainants have proved medical negligence on the part of the Respondents 1 to 3. Therefore Point No-1 is answered in the affirmative.<br /> POINT NO.2:-<br /> 21. As discussed above, during the pendency of this case, the Respondent NO-4 has been added at the instance of Respondent No-1 & 2. This Respondent No-4 Insurance Company has filed written version contending that the rights & liabilities of the parties relating to the nature & extent of insurance policy are subject to the terms & conditions and limitations contained in the contract of Insurance policy. The liability of the Insurer is to indemnify the insured in certain cases, when the insured become liable but not in all the cases. The Insurance policy in question does not cover the risk for bodily injury or death caused by a staff nurse of the hospital muchless a nurse and so this Respondent No-4 is not liable to indemnify Respondent No-2 in the event of complaint being allowed. The policy is a Doctors indemnity policy and not the hospital indemnity policy it does not cover the risk of negligence of the staff.<br /> It is also contended that the death of the deceased patient was due to administration of injection “Pantathol Sodim 500 mg” which is a general Aneasthesia by unqualified nurse without authority which amounts to a criminal act and so this Respondent No-4 is not liable to indemnify the Respondent NO-2 in the event of complaint being allowed. The insurance policy issued to Respondent No-2 is not a medical establishment policy nor Respondent NO-2 has paid any extra premium to cover for claim arising out of bodily injury or death of any patient caused by or alleged to have been caused by error or negligence in professional service by any other doctors or staff or Nurse working under the insured. Consequently this Respondent No-4 is not liable to indemnify Respondent NO-3. <br /> 22. Respondent No-4 has produced Attested copy of Insurance policy viz., Professional Indemnity Insurance Policy at Ex.R-4 along with its terms & conditions at Ex.R-4(1). Sl.No-2 of Ex.R-4(1) pertains to the Indemnity clause which states that Indemnity applies only to the claims arising out of bodily injury and/or death of any patient caused by or alleged to have been caused by error, omission or negligence in professional service rendered or which should have been rendered by the insured or qualified assistants named in the schedule or any nurse or technician employed by the insured.<br /> 23. In the Insurance Policy at Ex.R-4 the name and the address of insured is shown as Dr. H.Vadhiraj, Gokul Maternity & Nursing Home, Jawaharnagar Raichur. Admittedly Dr. H. Vadhiraj (Respondent No-2) is running Respondent No-1 Gokul Maternity & Nursing Home. Further Respondent No-3 Nurse, was working as staff nurse under Respondent No-2. So to say Respondent NO-2 doctor is not an employed doctor of Respondent No-1 Nursing Home. But Respondent NO-2 is the proprietor of Respondent No-1 Nursing Home. Respondent No-3 Nurse is an employed Nurse under Respondent No-2 doctor. Hence policy obtained by Respondent No-2 covers/attracts the liability for the acts of ‘any nurse’ employed by the insured-Respondent No-2, as could be seen from the word ‘any nurse’ employed in the indemnity clause. Hence we do not find force in the arguments advanced by the L.C. for the Respondent No-4 that the term ‘nurse’ employed in the indemnity clause in the policy does not cover the employed nurse Respondent No-3.<br /> <br /> 24. The L.C. for the Respondent No-4 further argued that the death of the deceased patient was due to administration of injection ‘Pantathol Sodium 500 mg which is a general aneasthesia by un-qualified nurse without authority which amounts to a criminal act and so this Respondent No-4 is not liable to indemnify the Respondent NO-2 as per Exclusion clause in the policy. But as per the averments of the complaint itself and from the material on record it clearly go to show that the nurse Respondent No-3 has given injection Pantathol Sodium 500 mg I.V. instead of Panthodec. So the exclusion clause of the policy is not at all applicable. Therefore it follows that the Respondent No-4 is liable to indemnify the Respondent NO-2 under the Insurance Policy at Ex.R-4 and so this Point No-2 is answered in the affirmative. <br /> <br /> POINT NO.3:-<br /> 25. The complainants have sought for compensation of Rs. 17 Lakhs with interest at 12% p.a. from the date of complaint and for payment of damages of Rs. 2 Lakhs along with cost of the proceedings. <br /> In Para-11 of the complaint it is stated that the complainants father died in the year 2000 and after his death, their mother Sudhakshamma aged about 42 years use to get pension of Rs. 4,593/- PM and the same is used for welfare and for the education of the complainants and due to unfortunate death of Sudhakshamma for the negligence of the Respondents they lost their dependency and they are deprived from love and affection of their mother and there are no other male or female elders to look after them. Except the bare averments (in Para-11) that their mother Sudhakshamma was aged about 42 years, complainants have not produced any evidence to show the exact age of deceased Sudhakshamma at the time of her death. However the case sheet of Respondent No-1 hospital produced by the complainants at Ex.P-14 shows the age of Sudhakshamma at the time of her admission in hospital on 20-02-07 as 44 years. Admittedly this Sudhakshamma was admitted in the Respondent No-1 hospital for Laparoscopic Hystrectomy and undergone operation on 25-02-07. So this case sheet showing the age as 44 years is said to have been stated by late Sudhakshamma while she admitting in the said hospital. <br /> The L.C. for the complainant argued that the late Sudhakshamms was getting a family pension of Rs. 4,593/- per month as per the certificate issued by State Bank of Hyderabad Raichur dt. 21-03-07 at Ex.P-9. So having regard to the quantum of pension and the age of the deceased Sudhakshamma by applying multiplier 15 it works out Rs. 7-8 Lakh and total compensation claimed at Rs. 17 Lakhs by the complainants. However it is generously submitted that it is left to the discretion of the Forum. <br /> The L.C. for the Respondent No- 1 & 2 and the L.C. for Respondent No-4 submitted that the compensation sought for is highly exaggerated, exorbitant and excessive and is not supported by any documents. They have also submitted that the complainants 1 to 3 who alleges to be dependency of late Sudhakshamma are all majors and complainant No-1 is employed in District Court Raichur who was appointed on compensatory ground on the death of their father i.e, husband of late Sudhakshamma. <br /> 26. Admittedly in Para-3 of the complaint it is averred that complainant No-1 is employed in District Court Raichur and complainant No- 2 & 3 are studying in BCA & BSc Radiography respectively. So it shows that all the three complainants are major and complainant NO-1 is employed and taking care of his two brothers in their education. As rightly argued by the L.C. for Respondent NO- 1 & 2 and L.C. for Respondent No-4 that the compensation of Rs. 17 Lakhs as sought for is highly excessive for simple reason that after deducting 1/3 in the pension of deceased Sudhakshamma, the yearly dependency of the complainants comes to Rs. 36,000/-. By applying multiplier 15 having regard to the age of the deceased as 44 years, the dependency comes to Rs. 5,40,000/- and not 17 Lakhs. Hence having regard to the above discussions and the age of late Sudhakshamma at the time of her death and the employment of complainant No-1, we feel that ends of justice would be met by awarding a global compensation of Rs. 4 Lakhs. So the Respondent No- 1 & 2 shall pay Rs. 4 Lakhs to the complainants 1 to 3. <br /> 26. The Professional Indemnity Policy at Ex.R-4 as discussed above, shows the limits of indemnity at Rs. 4 Lakhs. So Respondent No-4 Insurance Company being the insurer of Respondent No-2 has to indemnify his liability for Rs. 4 Lakhs to the complainants. In this view of the matter we pass the following order.<br /> <br /> <br /> ORDER<br /> The complaint of the complainants is allowed in part.<br /> The Respondent NO- 1 & 2 shall pay a total/global compensation of Rs. 4 Lakhs including cost of litigation to the complainants 1 to 3. Since Respondent No-4 being the insurer of Respondent No-2 under Professional Indemnity Insurance Policy, so the Respondent No-4 Insurance Company shall indemnify the liability of Respondent No-2 in making payment of Rs. 4 Lakhs to the complainants 1 to 3.<br /> Respondent NO- 1 & 2 in general and Respondent No-4 in particular shall comply this order within (2) months from the date of receipt of copy of this order.<br /> Office to furnish a copy of this order to both the parties forth with free of cost.<br /> (Dictated to the Stenographer, typed, corrected and then pronounced in the open Forum on 19-05-08)<br /> Sd/- On leave Sd/-<br /> Smt.Pratibha Rani Hiremath, Sri. Gururaj Sri. N.H. Savalagi,<br /> Member. Member. President, <br /> Dist.Forum-Raichur. Dist-Forum-Raichur. Dist-Forum-Raichur.