For J J Clinic & Nursing Home                Mr Sandeep Kapoor, Advocate     

For Richa Singh                           Mr Anil Kumar Mishra, Advocate   

ORDER

PER SUBHASH CHANDRA

1.      This appeal under section 15 of the Consumer Protection Act, 1986 (in short, the ‘Act’) challenges the order dated 13.11.2018 of the State Disputes Redressal Commission, Uttar Pradesh, Lucknow (in short, the ‘State Commission’) in Complaint Case No. 2 of 2009 partly allowing the complaint against Appellants and directing them to pay the Respondent Rs 20 lakhs along with interest @ 6% from the date of filing of the complaint till the date of realization within one month of the order on account of medical negligence in the treatment of the complainant.

2.      This order will also dispose of FA No. 2309 of 2018 filed by the Respondent herein against the Appellants which also emanates from the same order. As the facts of the case are similar, FA 2135 of 2018 is taken as the lead case.  

3.      The relevant facts of the case, in brief, are that Appellant No. 1 is a fully equipped medical centre with doctors of different specialties as visiting Consultants and Appellant No. 2 is a qualified Consultant Physician and Cardiologist. On 11.10.2011 the Respondent, who was aged 1 1/2 years was admitted to the Appellant 1 hospital with history of high grade fever and was under treatment of Appellant No. 2 who prescribed medicines including intravenous injections. The Respondent was discharged on 13.10.2011. As per the Discharge Card of the Appellant No.1 (Hospital), the Respondent had been prescribed medicines and syrup but no injection. There was no mention of any bandage on the left leg. According to the Respondent, the treatment had included wrapping of a tight bandage on the left leg due to which she developed gangrene and after a few days of discharge from the appellant no.1 hospital was required to be admitted to the Sunder Lal Hospital, Banaras Hindu University (BHU) on 15.10.2001. However, she was discharged from thishospital on 20.10.2001 and was admitted to KEM Hospital, Mumbai on 23.10.2001 from where she was discharged on 27.10.2001. The left leg of the Respondent was amputated below the knee on 29.10.2001 at the KEM Hospital, Mumbai in view of the need to prevent the spread of gangrene. Subsequently, she received treatment at the All India Institute of Physical Medicine & Rehabilitation, Mumbai for artificial limb implantation in November, 2004.  

4.      We have heard the learned counsel for the parties and perused the records.

5.     Respondent filed a Consumer Case (no. 2 of 2009) before the State Commission alleging medical negligence. The case was disposed on contest by the impugned order partly allowing the complaint and awarding certain reliefs which are challenged by way of appeal.

6.      The grounds of appeal taken by the appellant are that (i) the complaint was barred by limitation under Section 24A of the Act since the complaint was filed after nearly 6 ½ years of the occurrence of the incident and the State Commission had erred in holding that the cause of action occurred when the Respondent was a minor and therefore cannot be treated as barred by limitation and failed to consider that the natural/legal guardian could have filed the complaint; (ii) the Respondent had failed to show cause that Section 24 A did not apply before the State Commission and that it did not condone the delay or pass any order on their application dated 27.06.2016 challenging the admissibility of the complaint on grounds of limitation; (iii) the impugned order was contrary to the law laid down by the Hon’ble Supreme Court of India in State Bank of India Vs. M/s B.S. Agricultural Industries, 2009 (5) SCC 121 that Section 24 A was a “legislative command” to consumer fora and that the delay was condonable only if sufficient cause was shown for reasons to be recorded in writing and the judgment of the Hon’ble Supreme Court in Haryana Urban Development Authority Vs. B.K. Sood, 2006 (1) SCC 164; (iv) the State Commission failed to appreciate the judgment of the Hon’ble Supreme Court in V.N. Shrikhande Vs. Anita Sena Fernandes, 2011 (1) SCC 53 wherein the patient underwent an operation in 1993 and a piece of gauze was discovered in the stomach in 2002 in respect of which a complaint was filed in 2009 and it was held that there was no continuous cause of action justifying the condonation of delay; (v) the State Commission did not consider the IPD records of BHU, Varanasi that cause of gangrene may be due to DIC (Septicemia) and not the tightening of bandage on the patient’s leg; (vi) the State Commission’s finding that there was deficiency in service by Appellant No. 1 in not providing details of treatment from 11.10.2001 to discharge in contravention of Medical Council Of India Regulations, 2002 since a Discharge Slip had been provided to the Respondent’s father/natural guardian on 13.10.2001 and records were maintained for 3 years as per Regulation 1.3.1 and that no requisition was placed during this period; (vii) the Respondent had been discharged on improvement of condition and therefore the tying of a tight bandage was attributable to the advice of a ‘quack’/unprofessional person; (viii) the Discharge Prescription dated 13.10.2001 issued by Appellant No. 1 clearly mentioned the diagnosis as Febrile Convulsion and the condition on discharge to be “improved” with advice to follow up treatment of injections and syrups, including for SOS use, and there was no evidence led to indicate that this advice was followed; (ix) subsequent treatments of the Respondent were based on the patient’s history recorded by the hospitals as furnished by the parents/guardians; (x) the impugned order did not consider that the degree of skill and care required by a medical practioner was well provided by the Appellant in the treatment of the Respondent and the onus of proving that the antibiotic administered through intravenous injection was the cause of the gangrene had not been discharged as held in this Commission’s judgment in Kailash Hospital Vs. Prem Tandon  and Dr. H.B. Sahaya Vs. Chaturbhuj Khemka; (xi) no opinion of a Medical Board regarding negligence in treatment of the complainant or corroborating evidence had been brought on record and (xii) no reasoning with regard to the calculation of the compensation with interest had been provided in the order. It was therefore prayed that the appeal be allowed.

7.      Per contra, it was submitted on behalf of the Respondent that after admission of the respondent in the Appellant No. 1 Hospital on 11.10.2001, Appellant No. 2 gave medicines through intravenous injection in the left foot and simultaneously tightened a bandage at the point of the injection. Despite taking medicines prescribed for 2 days till 13.10.2011, the condition of the Respondent did not improve. She was therefore taken to Sir Sundar Lal Hospital, BHU for treatment on 15.10.2001 where she was diagnosed with Meningitis fever after CFS Test and she got relief after proper medication. However, the left leg turned blackish with swelling and there was no relief inspite of medication by the doctors. On being advised, they took the child to KEM Hospital, Mumbai where gangrene was diagnosed due to tying of the tight bandage on the left leg and based on medical advice the left leg was amputated below the knee. Thereafter, various doctors were consulted for an artificial leg and rehabilitation of the Respondent.  

8.      It is the case of the Respondent that her condition deteriorated after discharge from the Appellant No.1 hospital on 13.10.2001 due to the tight bandage on her left lower leg. It is argued that the complaint could be filed only after the Respondent attained the age of majority in 2009 and hence the delay deserved to be condoned as was done by the State Commission. Negligence of the treating doctor, Appellant No. 2 is alleged and it is alleged that the Appellants failed to provide the complete BHT during the period of hospitalization which was violative of the Rules and Regulations of the Medical Council of India and the law laid down by the Hon’ble Supreme Court in Dr. Shyam Kumar Vs. Ramesh Bhai Hariman Bhai Kachhiya, I (2006) CPJ 16 (NC) and H.S. Sharma Vs. Indraprasth Apollo Hospital, II (2007) CPJ 21 (NC).

9.     It was contended that it was evident from the prescription dated 13.10.2001 that though Appellant No. 2 diagnosed Febrile Convulsion and prescribed Intra Muscular Fortum 250 mg and Intra Muscular Mikacin 100 mg BD (Antibiotic), the treatment rendered on 11.10.2001 and 12.10.2001 was without any pathological test to ascertain the disease. The Discharge Record of SS Hospital, BHU, Varanasi indicated the Respondent was suffering from Meningitis Fever. Hence, the Appellants did not try to confirm the cause of illness through any tests. The diagnosis of gangrene of the left leg by S Hospital, BHU and KEM Hospital, Mumbai indicates that the cause of gangrene developing in the left leg was due to the mistake and negligence of the Appellants during treatment due to tying of tight bandage which was not removed at the time of discharge. The treatment by a non-qualified professional/quack is strongly denied and the cause of the gangrene is attributed to the un-professional treatment and negligence of the Appellants. It was submitted that gangrene could not have developed within a span of a day and that since in infants intravenous drips are administered through the leg after fastening it with a bandage to prevent disturbance, the tying of the tight bandage was clearly attributable to the negligence of the Appellants.

10.    Learned counsel for respondent placed reliance on the judgment of the Hon’ble Supreme Court in Savita Garg (Smt) Vs. The Director, National Heart Institute, in CA no. 4024 of 2003 decided on 12.10.2004 IV (2004) CPJ 40 SC which held that the onus lay on the hospital and the concerned doctor and Consumer fora cannot place heavy burden in the patient or family members/relatives. It was submitted that the principle of res ipsa loquitor (facts speak for themselves) applied in this case since the Appellants failed to diagnose Meningitis which, as per records, was done by SS Hospital, BHU. Thus, Appellants treated the Respondent without competence, knowledge or skill of care and, as held by the Hon’ble Supreme Court in V. Kishan Rao Vs. Nikhil Super Speciality Hospital & Ors., (2010) 5 SCC 513, it was the duty of the doctor to diagnose the patient properly and if the doctor treated the patient without proper diagnosis and confirmation of disease, it would amount to deficiency in service and that while Expert Opinion was required if the complication of the case warranted it, the same could be dispensed with if negligence was proved on the basis of record. Learned Counsel for Respondent No. 1 further relied upon the judgment of this Commission in Vidya Devi (Deceased) through LRs & Ors. Vs. R. Mehindru (Dr.) II (2008) CPJ 232 (NC) in Revision Petition No. 2348 of 2003 dated 07.04.2008. Learned counsel for respondent therefore prayed that the Appellant’s First Appeal be dismissed and that her Appeal be allowed with enhanced compensation as prayed.

11.    The State Commission’s order has held that:

“This is an undisputed fact that the complainant was minor at the time of treatment at the hospital of OP no. 1 being of the age of about 1 and half year, as minor can file a complaint regarding any cause of action accrued during her minority till she attains majority, this complaint can not be treated as time barred.

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Considering into account the entire facts and circumstances, we are of the view that in fact gangrene in the lower left leg of the complainant has developed because of the negligence of the OPs in the treatment, in taking care of the complainant during her treatment which ultimately led to amputation of her lower left leg below knee. As such, complainant deserves to be compensated by the Ops.

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Undoubtedly, the complainant’s left lower leg below knee had to be amputated because of the negligence of the Ops at the tender age of about 1 and half years. Hence, she will have to live life of a handicapped throughout her life. This handicap will certainly adversely affect normal personality development of the complainant. She will have to face this trauma physically as well as mentally throughout her life. Rehabilitation of this deformity for the entire life would certainly be very expensive. We are of the view that Rs 20 lacs would meet the ends of justice.” 

(Emphasis supplied)

12.   From the foregoing, the issues which fall for consideration in this case are whether the impugned order has considered (i) the issue of limitation; (ii) whether a case of medical negligence is made out; and (iii), if (ii) is in the affirmative, whether the compensation awarded is justified.

13.    It is not in dispute that the Respondent was an infant of 1 ½ years at the time of hospitalization and treatment which is the subject matter of this appeal. Allowing for the post amputation period of rehabilitation for a prosthetic leg, the delay can be considered to be justified although not necessarily on account of the respondent becoming a major, which incidentally she was not when the complaint was filed. While the grounds of condonation of delay by the State Commission are not tenable, the need to condone the delay in a case where an infant child loses a limb due to amputation on account of gangrene does need consideration despite the rigour of Section 24 A under the Act. The delay by the guardians of a child so afflicted to file a complaint while being engaged in the rehabilitation of the child post amputation which involves filing of relevant papers in support from various hospitals is certainly condonable in order to consider the issues on merits.      

14.    As regards the central issue of medical negligence, the impugned order has held both appellants liable in the instant case. The issue of liability was considered by the Hon’ble Supreme Court in Savita Garg (supra) and it was held that in cases of medical negligence where liability was fastened on doctors/nursing staff, hospitals/clinics could not be absolved of vicarious liability. However, the Hon’ble Supreme Court has held in Jacob Matthew Vs. State of Punjab & Anr., (2005) 6 SCC 1 that in a claim of medical negligence, it is necessary to consider whether the standard of care and skill was that of an ordinary competent medical practioner exercising an ordinary degree of professional skill as per the Bolam case. It has also been laid down that simply because a patient does not respond favourably to a treatment given by a physician or a surgery fails, the doctor cannot be held liable by applying the principle of res ipsa loquitur. It has been held that “No sensible professional would intentionally commit an act or omission which would result in loss or injury to the patient as the professional reputation of the person is at stake. A single failure may cost him dear in his career. Even in civil jurisdiction, the role of res ipsa loquitur is not of universal application and has to be applied with extreme care and caution to the cases of professional negligence and in particular that of the doctors.” In Kusum Sharma Vs. Batra Hospital, (2010) 3 SCC 480 the Hon’ble Supreme Court held that “Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence”.

15.    The averment of the Respondent in the case on hand is that the Appellant No. 2 failed to provide the standard of care by bandaging the left leg so tightly that it resulted in gangrene on account of preventing flow of arterial blood to the lower portion of the leg and that the Appellant No. 1 (hospital) deliberately did not provide the medical records of treatment for the period 11.10.2001 till 13.10.2001 as required under the Medical Council of India’s Regulations since there had been a failure to detect Meningitis Fever through a pathological test. From the record it is evident that Appellant No. 2 is a Physician and Cardiologist and there is no allegation of any lack of medical skill on his part. The Discharge Summary from the Appellant No. 1 hospital and the prescription mentions the intra vascular injections and medication that the Respondent had been placed on while admitted for Febrile Convulsion. As regards the Respondent’s averment is that a bandage was tied tightly to the lower part of the left leg while the Respondent was on IV drip, neither the Discharge Summary of the Appellant 1 Hospital nor the records of SS Hospital, BHU, Varanasi record that such a tight bandage was advised or tied to the leg of the Respondent either at the time of discharge or admission in these hospitals.

16.   It has also not been pleaded that the medication prescribed at the Appellant 1 hospital with regard to IV medication was continued after 13.10.2001. It is also not Respondent’s case that the medication prescribed by Appellant No. 2 was responsible for the gangrene. The only averment with regard to treatment is that the doctor failed to prescribe the test for Meningitis.

17.   Respondent relied upon this Commission’s judgment on Vidya Devi (Deceased) through LRs and Ors vs R Mehindru (Dr) in RP No 2348 of 2003 decided on 07.04.2008, II (2008) CPJ 232 (NC), wherein it was held that if normal and obvious tests were not conducted before arriving at a diagnosis and the course of abruptly deciding on diagnosis and commencing treatment would not normally be followed by a professional man of ordinary skill. Hence, Appellant 2 was liable since he commenced treatment without ascertaining cause of fever through tests. Appellant 1 erred in not maintaining records. The issue whether treatment was based on incorrect diagnosis is not the primary issue here. It is whether the bandage that was tied so tightly caused gangrene. There is no evidence on record as to why the bandage was used when whether the treatment prescribed by Appellant 2 was carried on or not after discharge has not been urged in pleadings. It is also not brought on record whether the tight bandage was, in fact, prescribed by Appellant no.2. The contention of the Respondent can therefore not be considered. 

18.   Therefore, attribution of gangrene to the treatment at Appellant 1 hospital under Appellant 2 has not been established through evidence by the Respondent. Admittedly, gangrene could not have developed within a day. The respondent has not brought any evidence on record to conclusively establish whether the advice for a tight bandage was prescribed by appellant no.2. In view of the above, the finding of the State Commission that “gangrene in the lower left leg of the complainant has developed because of the negligence of the OPs in the treatment, in taking care of the complainant during her treatment” is not substantiated by any evidence on record.

19.   This finding is also contrary to the evidence on record as per the discharge summary and runs contrary to the law laid down by the Hon’ble Supreme Court with regard to medical negligence under the Consumer Protection Act. In Jacob Matthew (supra), the Apex Court has held that:

        Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence, as recognized, are three: “duty”, “breach” and “resulting damage”, that is to say:

1. the existence of a duty to take care, which is owed by the defendant to the complainant;
2. the failure to attain that standard of care, prescribed by the law, thereby committing a breach of such duty; and
3. damage, which is both causally connected with such breach and recognized by the law, has been suffered by the complainant.

If the complainant satisfies the court on the evidence that these three ingredients are made out, the defendant should be held liable in negligence.

(Emphasis supplied)

The Respondent has not established that there was any such breach attributable to either Appellant No. 1 or 2. In the instant case, it has also not been established with evidence that the cause of gangrene was either medication prescribed by Appellant No. 2 or that he was responsible for the tying of a tight bandage which prevented blood circulation in the lower left leg of the Respondent. The finding of the State Commission in this regard cannot, therefore, be countenanced and must be set aside.

20.    In view of the discussion above, and the facts and circumstances of this case, the appeal is found to have merits and is accordingly allowed. Order of the State Commission is set aside. FA No. 2309 of 2018 filed by the Respondent No. 1 is also accordingly dismissed as without merits. There shall be no order as to costs.

21.    Pending IAs, if any, stand disposed of with this order.