PER JUSTICE R.C. JAIN, PRISIDING MEMBER (ORAL) Dr. Rajesh Bhikhabhai Parmmar and Bodeli Dhokalia Public Hospital, who were the opposite parties before the State Commission in complaint case no.137/99 have filed this appeal against the order dated 18.05.07 passed by the Gujarat State Consumer Disputes Redressal Commission (in short, ‘the State Commission’). The complaint before the State Commission related to the medical negligence and deficiency in service in giving treatment to one,
..2.. Kaushalyaben who presented herself before the above named doctor and in the said hospital on 3.4.99 with complaint of pain in the abdomen. The said patient, however, died on the following day while being shifted to an ungraded medical center at Vadodara. The complaint was resisted by the opposite parties thereby denying any negligence in the treatment and it was contended that despite the advice given by the attending Doctor the attendants of the patient, namely, her husband, did not take her to the hospital in Vadodara on 3.4.99 for further tests like sonography and after her condition got deteriorated, she was again referred to a Gynecologist at District Headquarter, Vadodara on the following day. 2. The State Commission on consideration of the respective pleas and contentions put forth on behalf of the parties and also having regard to the evidence and material brought on record found the appellants/opposite parties guilty of medical negligence and deficient in rendering service to the said patient resulting into her death. Based on the said finding, the State Commission partly allowed the complaint and awarded a compensation of Rs.3 lakh along with interest @ 6% p.a. in favour of the complainants to be paid jointly or severally by the opposite parties besides a cost of Rs.2,000/- each to ..3.. the complainants. The order contained a stipulation that out of the awarded amount, a sum of Rs.1,50,000/- shall be deposited in long term deposit with a nationalized bank in the name of minor son of the deceased and rest of the amount shall be payable to the complainant represented through Jagrut Nagrik. 3. Aggrieved by the said order, the doctor and the hospital have filed this appeal. Though National Insurance Company Ltd. was not a party in the original complaint but during the pendency of the appeal on application made on behalf of the appellants the said insurance company has been impleaded as a respondent party to the present appeal because it was argued that the appellant no.1, Dr. Rajesh Bhikhabhai Parmar had taken an insurance cover upto Rs.5 lakh from the said insurance company. 4. We have heard Ms. Sushila Rani, learned counsel for the appellants, Mr. P.V. Moorjani, Authorised Representative of the complainants and Mr. Kishore Rawat, learned counsel representing the insurance company and have given our thoughtful consideration to their respective submissions. ..4.. 5. Having perused the material brought on record and considering the submissions of the learned counsel for the parties, we are of the opinion that the findings of the State Commission are based on correct appreciation of evidence and material so produced on record. We must uphold the said finding for certain other additional reasons also. There is ample evidence on record to show that though Dr. Rajesh Bhikhabhai Parmar was a qualified surgeon holding a master degree in surgery but he failed to act diligently and prudently in the discharge of his duties; firstly in making a correct or proper diagnosis of the ailment/complaint with which the patient was brought to the hospital and secondly he started treatment by inserting catheter just to discharge urine which had accumulated in the bladder and did no more to pin point the exact complaint or problem with which the patient was suffering and continued to suffer despite the said treatment. Even if the hospital did not have the requisite infrastructure and facility for sonography etc., certain pathological tests could have been carried out to come to at least the provisional diagnosis of the problem. The doctor did not give any treatment and rather waited for whole one day when he advised the patient be
..5.. shifted to some other hospital for further examination and tests. The patient died on the way to Vadodara. These circumstances clearly establish that the doctor did not realize the gravity of the situation and wasted precious hours which ultimately led to the death of the patient without requisite treatment. Had he assessed the situation on 3.4.99 itself and advised her shifting, perhaps she would have been taken to some upgraded hospital and precious life of 22 years old lady would have been saved. 6. So far as the conduct of the hospital is concerned though it is not possible to directly attribute any deficiency in service on their part but the record volumes about the manner in which the hospital has maintained the record. An extract of the register of the OPD patients treated in the hospital during the period from 1.4.99 to 12.04.99 has been placed on record where names of so many patients who had been treated as OPD patients from 1.4.99 to 12.4.99 have been mentioned but surprisingly there is no entry of the name of Kaushalyaben who was treated on 3.4.99. Besides, the record would show that it is not being maintained in systematic and regular way so much so that entries of the previous date have been made after the
..6.. later date. No explanation has been given as to why there is no entry of Kaushalyaben and it creates a suspicion. It is no wonder that the
said patient was treated as an indoor patient as claimed by the complainants. It is, however, sought to be denied by the learned counsel for the appellants. Learned counsel for the appellants submits that the appellant no.2 is a charitable hospital. In our view it does not make a difference and the hospital cannot be absolved from its duty and liability with regard to maintaining the proper record as per the instructions of the Health Department of the State Government. 7. Having considered the matter in its entirety, we are of the view that this appeal has no merit and is liable to be dismissed. The compensation so awarded by the State Commission and the other stipulation contained therein also appear to be just, proper and reasonable and not harsh by any standard. So far as the liability to pay the amount of compensation is concerned, we are of the view that it should be apportioned in the ratio of 2/3 and 1/3 to the doctor and the hospital respectively. ..7.. 8. In the result, the appeal is partly allowed and the order of the State Commission stands modified to the extent that liability to pay
the awarded amount of Rs.3 lakh shall be in the proportion of 2/3 payable by the doctor and 1/3 by the hospital. It would be open for the appellant no.1 doctor to seek indemnification from the insurance company after making the payment. We are informed that during the pendency of the appeal a sum of Rs. 1 lakh each was deposited by the doctor and the hospital. That amount will be released in favour of the complainants along with interest accrued thereon. The balance amount of Rs.1 lakh alongwith proportioned interest @ 6% will be paid by the appellant doctor to the complainants within four weeks. Hospital shall also pay the apportioned interest on the amount of Rs.1 lakh to the complaints within the same period. Half of total amount payable in terms of this order will be kept in long term fixed deposit in the name of minor son of the deceased patient and remaining amount may be utilized by the complainant/respondent no.2. Appeal stands disposed of in the above terms.
......................JR.C. JAINPRESIDING MEMBER | | 
