M. SHREESHA, PRESIDING MEMBER

Challenge in this Revision Petition, under Section 21(b) of the Consumer Protection Act, 1986 (in short, “the Act”), is to the order dated 28.08.2014, in Appeal No.533/2011, passed by the Tamil Nadu State Consumer Disputes Redressal Commission, (in short, “the State Commission”).  By the impugned order, the State Commission concurred with the findings of the District Consumer Disputes Redressal Forum, Chennai (South) (in short, “the District Forum”), that there was no negligence and dismissed the Appeal preferred by the Complainant.

 2.      The brief facts as set out in the Complaint, are that the Complainant’s daughter Ms. Shakila Banu (hereinafter referred as “the Patient”), was suffering from back pain when she used to sit for more than three hours at a stretch. It was averred that she was suffering from back pain for last seven years, but otherwise, had normal health like any other woman of her age group. She was taken to the second Opposite Party (hereinafter referred as “the treating Doctor”), who was an Orthopaedic Surgeon, and on his advice, on 09.10.2003, she was admitted in the first Opposite Party Hospital (hereinafter referred as “the Hospital”). It was stated that she was diagnosed as having Chronic and Recurrent Lumbar Disk Prolapse with right-side Sciatica for which spinal cord surgery was done by the treating Doctor on 10.10.2003 and she was discharged on 19.10.2003.

3.       It was pleaded that subsequent to the surgery, the Patient suffered severe health problems viz. lack of urine sensation; motion sensation;   over-sensitivity to light, sound and smell; unable to sit for more than 30 minutes; unable to walk for more than a few steps, else she would be bed ridden; suffered fits 3-4 times a day; high blood pressure; necessitating heavy intake of 20-25 different kinds of medicines every day. It was stated that the Hospital collected ₹62,000/- towards Hospital charges and professional fees and despite the bad health condition of the patient, she was discharged on 19.10.2003. On account of repeated complications the patient was once again admitted in the Hospital on 10.11.2003 and discharged without any improvement in her health on 20.11.2003. Once again the patient developed fits and become very serious and she was readmitted on 26.11.2003 at 10 p.m. in the night. When the second Complainant contacted the treating Doctor, he was directed to go to Dr. Dayalan, Psychiatrist, who after seeing the patient, recommended her to Dr. Velmurugan, Neurosurgeon, from whom she took treatment till 14.12.2003. On the advice of  Dr. Velmurugan, the patient was admitted in Sri Ramachandra Medical Centre, on 15.12.2003 and discharged on 27.12.2003. Dr. Velmurugan advised her to go to the treating Doctor for restoration of normal bowel movements and for curing fits.

4.       It was averred that the patient was under the care of the treating Doctor for two months, yet, there was no improvement in her health condition. It was pleaded that on seeing the second MRI scan report, the treating Doctor admitted that he had committed a grave mistake by not setting right the flesh in the operated area. On 04.06.2004, she was advised to take blood test and urine culture and when she visited the treating Doctor again on 07.06.2004, she was informed that he had left India. Thereafter, the Complainant took the patient to Apollo Hospital, Chennai and consulted Dr. Prithika, Neuro Specialist. After examining all the medical reports and scan reports, she said that surgery done in  Padmini Nursing Home by the treating Doctor  was done very negligently and that the ‘S’ nerve was cut and the flesh was not properly replaced and hence there is no sensation of passing urine and motion coupled with fits at frequent intervals. It was averred that the treating Doctor did not consult any other specialist regarding the case and did not give any details as to what could be the problem, what the requirements in this case might be, the result and the consequences. The surgery was performed in a negligent manner and the Patient finally died on 31.01.2007. Only on account of the negligence of the treating Doctor, the patient who was in normal health except for back pain ended up with serious complications like loss of sensation, fits at frequent intervals resulting in a lot of suffering and exorbitant expenses, for which the Complainant seeks direction to the Opposite Parties to pay an amount of   ₹20,00,000/- towards compensation for the loss of life and the suffering undergone by the patient.

5.       The Hospital, arrayed as the First Opposite Party, filed its Written Version stating that the Hospital is well equipped with two operation theaters and X-Ray department, intensive medical cardiac care units, and  all necessary facilities including ventilator, pulse oximeter etc. It was stated that the theaters are highly sophisticated and equipped with all emergency cardiac systems. They have qualified technicians taking care of the oxygen supply and provide all the facilities for consultant Doctors to treat their patients. It was pleaded that the Hospital collected only charges for such facilities that are offered to the respective patients. The Duty Doctor does not give any treatment independently to the patients but only after informing the consultants, it is denied that there was any negligence on behalf of the Hospital and it was also denied that they collected ₹62,000/- towards Hospital charges and Professional fees. The treating Doctor is an independent Consultant and no deficiency can be attributed to the Hospital as the patient had taken treatment only with the Doctor who is a Consultant and not an employee of the Hospital.

6.       The treating Doctor filed his Written Version admitting that the Complainant had brought the Patient for treatment as she was suffering from back pain on account of a bad fall seven years ago. On examination, it was found that the patient sustained disc prolapse i.e. bulging of disc materials infringing upon the nerve roots including ‘S-1’. She was unable to stand or walk normally and she was advised bed rest, physiotherapy and medication.  If the symptoms persist, surgery was advised. It was averred that the Complainant and the patient were explained pros and cons of the proposed surgery and were told that there could not be any assurance for complete cure after the surgery. The Complainant signed the consent form for surgery, anesthesia and other procedures, which includes the complications and risks involved.

7.       It was pleaded that the surgery was performed on the patient on 10.10.2003 and during surgery she developed cardiac arrest and was rescued only by the timely effort of the treating Doctor. It was stated that the case record explains the timely action taken to save the patient and thereafter, she was discharged on 20.10.2003. On 10.11.2003, she was once again admitted following complaint of pain due to obstruction of urinary passage, the patient also complained of photophobia, hyper-sensation to sounds and kept mumbling to herself. Consequently, Dr. Vaidhyalingam, Pychiatrist treated her and she was discharged on 20.11.2003. 

8.       It was averred that though the Patient’s life was saved from cardiac arrest, the temporary loss of blood supply for three minutes to the operated area, made it vulnerable for subsequent infection and further worsening of her symptoms regarding passage of urine, motion and difficulty in standing and walking. Such complications are not unusual in this kind of surgery. It was further averred that the patient was treated by this Opposite Party even earlier as he was the Orthopedic Consultant at Zubeda Hospital. There was no option for the patient except surgery and it was performed only after explaining all the risks. The Patient’s orthopaedic problems were present even before the surgery, which worsened, due to failed back syndrome resulting in cardiac arrest and spinal cord infection and hence no negligence can be attributed to the treating Doctor.

9.       As the treating Doctor was to leave India on 07.06.2004, she was advised to take urine and blood test on 04.06.2004, but she did not meet him on 06.06.2004 prior to his departure. It was denied that ‘S’ nerve was cut and the flesh was not replaced properly which led to post-operative complications. It was pleaded that only because of failed back syndrome and Extensive Arachnoiditis, there was cardiac arrest and no deficiency of service can be attributed to the Opposite Parties.

10.     The District Forum based on the evidence adduced dismissed the Complaint observing as follows:

“11.  Perusal of Ex. B2 case records would show that the patient Shakila Bano developed cardiac arrest and she was saved by the 2^nd opposite party and his team on 10.10.2003. It shows the curiosity (sic) of  the 2^nd opposite party in saving the life of the patient. Perusal of Ex. A3 would show that the Shakila Bano was a patient of 2^nd opposite party from 1998. Perusal of EX A3 and A4 would show that shakila Banu had orthopedic problem even before surgery. The 2^nd opposite party performed the operation negligently she would not have survived up to the year 2007. The 2^nd complainant who is the father of the Shakila Banu deposed before this forum on the side of the complainant. When he was cross-examined by the 2^nd opposite party, he told that he had knowledge about the medical terms. To prove the 2^nd complainant had medical knowledge, no documentary evidence has been produced on the side of the complainant.

12.    Originally the complaint was filed by Shakila Banu, the daughter of the complainants 1 and 2 against the opposite parties 1 and 2 on 22.03.2005. As per Ex. A14, Shakila Banu had treatment in the Government General Hospital from 01.12.2006 to 28.02.2006. In Ex. A14, it has been stated that the Shakila Banu was of unsound mind. The 2^nd complainant in the cross examination by the 2^nd opposite party has stated that the Shakila Banu was in normal after taking Psychiatric treatment  and for that the complainants have not produced any documentary evidence. The consent form, i.e., Ex B, both Shakila Banu and 2^nd complainant had signed. It is presumed that both of them signed in EX B1 only after knowing the pros and cons of the operation.

13.    The complainants have not produced any expert evidence to show that the opposite party had performed the operation negligently. Further, the complainants have not produced any bills for the treatment of Shakila Banu.”

11.     Aggrieved by the said order, the Complainant preferred an Appeal before the State Commission, which relying on the decision of the Hon’ble Apex Court in V. Krishna Rao Vs. Nikhil Super Speciality Hospital & Anr. (2010) 5 SCC 513 and Jacob Mathew Vs. State of Punjab & Anr. 2005 (6) SCC 1 dismissed the Appeal observing as follows:  

“7. It is pertinent to note that  the 2^nd opposite party possesses MBBS, D. Ortho and MS Ortho degrees and he is a well qualified Ortho Surgeon having  vast experience of more than three decades at the time of treating the patient. We find him to be a qualified Ortho Surgeon with rich experience in the field and he has served as Head of the Department and Professor of Ortho, Madras Medical College Hospital, and therefore, he is competent to treat the girl and to perform the surgery. Further, admittedly, it is not the case to the complainants that he is not qualified to handle the case, and we have to note that there is no allegation or averment that he is not qualified or without skill.

8.  It is pertinent to note that the there is no medical expert’s evidence or opinion on record to establish the contention of the complainants that there is negligence and deficiency in service on the part of the 2^nd opposite party in performing the surgery in the spinal cord, giving rise to various complications leading to her ultimate death.

9.  the appellants / complainants have contended that the case can be decided in the absence to expert’s opinion or evidence based on the rule of res ipsa loquitur.  In this context, we have to adhere to the decisions of the Hon’ble Supreme Court which are as follows:

1)   V. Krishna Rao Vs. Nikhil Super Speciality Hospital & Anr.  II-(2010)- CPJ-I- (SC)

 “In the opinion of this Court, before forming a opinion that expert’s evidence is necessary, the For a under the Act must come to a conclusion that the case is complicated enough to require the opinion of the expert or that facts of the case, or such that it cannot be resolved by the members of the Fora without the assistance of the expert’s opinion”

 “In case, where negligence is evident, the principle of res ipsa loquitur operates”

2)  Jacob Mathew Vs. State of Punjab & Anr. 2005- (6) Supreme Court Cases.

“Res ipsa loquitur is a rule of evidence which in reality belongs to the law of Torts. Inference as to negligence may be drawn from proved circumstances by applying the rule”  

12.     Dissatisfied by the order of the State Commission the Complainant preferred this Revision Petition.

13.     Ms. Padma Priya was appointed as Amicus Curiae to assist the Commission.

14.     Heard both sides at length.

15.     Learned Amicus Curiae, representing the Revision Petitioner submitted that the patient was admittedly diagnosed with Chronic and Recurrent Lumbar Disk Prolapse with right-side Sciatica for which spinal cord surgery was done by the treating Doctor on 10.10.2003, the patient was discharged on 20.10.2003 despite bad health condition, the patient suffered from severe abdominal pain, urinary incontinence, problems in movement and pain in left leg. She was admitted in the Hospital on 10.11.2003 and discharged on 20.11.2003. Learned Amicus Curiae submitted that despite surgery, the patient continuously suffered from fits and the discharge summary shows that the patient suffered from cardiac arrest during surgery on 10.10.2003, for which no explanation was given.

16.     Learned Counsel for the Respondents submitted that there was no specific pleading in the Complaint regarding the cardiac arrest and it was only when the case sheet was filed that this new plea was raised by the Complainant. He further pointed out that Laminectomy and Discectomy of L3 L4 L5 & S1 was done and the patient developed cardiac arrest during skin suturing and that she was resuscitated within three minutes. The opinion of Dr. Jaganathan, Cardiologist was taken and the patient was managed with all post-operative care and caution as stipulated under normal medical parlance. It was submitted that the patient immediately recovered after the cardiac arrest and that one of the reasons for infection is the temporary loss of blood supply for the three minutes coupled with ‘failed back syndrome’ and the patient’s history of previous orthopaedic problems.

17.     The brief point that falls for consideration is whether there was any negligence on behalf of the treating Doctor and the Hospital while performing the surgery or during pre and post-operative management of the patient.

18.     The Hon’ble Supreme Court in Dr. Laxman Balkrishna Joshi Vs. Dr. Trimbak Bapu Godbole & Anr. AIR 1969 SC 128, 1969 SCR (1) 206, has laid down the duties which a Doctor owes to his patient and observed as follows:-

“A person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person when consulted by a patient owes him certain duties, viz.:-

1. a duty of care in deciding whether to undertake the case;

2. a duty of care in deciding what treatment to give or

3. a duty of care in the administration of that treatment.A breach of any of those, duties gives a right of action for negligence to, the patient”.

In the instant case, it has to be seen whether there was any breach of any of the duties giving a right of action for Negligence, to the patient.

19.     The treating Doctor in his Written Version admitted that he was the Orthopeadic Consultant in Zubeda Hospital, where the patient was earlier under his treatment. This establishes that the treating Doctor was in the knowledge of the patient’s history of back pain for the last 7 years. It is an admitted fact that the patient had undergone cardiac arrest on 10.10.2003, the date on which the Laminectomy was performed. The stand of the Respondents that ‘such complications are not unusual in this kind of surgery’ and that consent was taken for the procedure, anesthesia and surgery and therefore, no liability can be fastened upon them, is to be examined in the light of the treatment record i.e. operation notes, case sheet and the discharge summary filed in this case.

20.     A brief perusal of the operation notes dated 10.10.2003 and the discharge summary dated 20.11.2003 exhibit the History and Diagnosis of the patient as follows:

“History: This 23 years female patient as admitted with C/o. pain over the back (Lumbosacral Region) past 2 years

H/o. Fall over the back 7 years ago. Pain aggravated while walking and bending. Pain radiating to Lower Limbs (+) No H/o. Fever, No C/o Bladder & Bowel Disturbances H/o. Appendectomy Done 8 years back. No other significant illness in the past.

Diagnosis: The patient was diagnosed to having with chronic (Traumatic) and Recurrent Lumbar Disk Prolapse L3 L4 L5 S1 with right-sided Sciatica”

21.     It is not in dispute that Laminectomy and Discectomy of L3 L4 L5 and S1 was performed on the patient on 10.10.2003.

22.     It is pertinent to note that in the afore-noted discharge summary, in the patient’s history, it can be clearly seen that there is no noting of any previous cardiac ailment, neurological problem or any orthopaedic surgery performed on the patient prior to 09.10.2003.

23.     The contention of the Respondents that cardiac arrest was not pleaded in the main Complaint, and therefore, cannot be considered, is totally unsustainable in the light of their own admission of ‘Cardiac Arrest’ in the case sheet and also the specific averment in the Complaint that the Complainant was not given details as to what might be the problem or what the requirements were and what might be the result and the consequence of such an operation.  Even otherwise, in a matter of medical negligence, the operation notes and the case sheet cannot be ignored and the omissions and commissions of an act by the Doctor or the Hospital needs to be seen in its totality. Hence, if the Complainant has not specifically used the word ‘Cardiac Arrest’ in his Complaint, does not mean that it should not be considered.  Moreover, she was a 24 year old young woman who was non-diabetic, non-hypertensive had gone in for a surgery for Laminectomy, and the reason for cardiac arrest was not explained by the Respondents either in the Written Version or in the affidavit filed before the fora below. At the cost of repetition, the patient was not stated to be in the category of a ‘high risk patient’ as can be seen from their own discharge summary. The blood pressure and pulse rate was normal and there was no indication of any pre anesthetic test having been performed on the patient. On a pointed query during arguments whether the cardiac arrest was on account of any anesthetic complication, there was complete denial by the Respondents except for stating that proper post-operative care was taken and that it was a known risk which was explained to the patient prior to the surgery. Such a stand is untenable in the light of the patient’s history which was noted in the Hospital treatment record. The cardiac arrest cannot be attributed only to the failed back syndrome without substantiating the cause with any documentary evidence or supporting it by any medical literature, especially in the light of the patient not having had any previous orthopaedic surgeries.  It is pertinent to note that in the entire treatment record there is absolutely no nexus which could be attributed to the patient’s condition prior to the surgery and the cardiac arrest which the patient had suffered in the operation theatre.

24.     The Hon’ble apex Court in Savita Garg Vs. Director, National Heart Institute, (2004) 8 SCC 56 has clearly laid down that when the patient has a prima facie case, which in the instant case is a cardiac arrest which had happened during an orthopaedic surgery, onus shifts on the Hospital and the team of Doctors to explain the reason as to why a particular complication has arisen, which in the instant case was not explained.

25.     It is the Respondents case that subsequent to the cardiac arrest, the patient was resuscitated within three minutes and that all post-operative care was taken. But the fact remains that not only was the reason for cardiac arrest not explained, it was stated in the Written Version that only on account of loss of blood supply for three minutes, the patient was prone to infection.  Hence, the nexus between the cardiac arrest and the post-operative complications admitted in their own Written Version cannot be ignored. To reiterate, the Hemodynamic Compromise, the heart rate Arrhythmia, Anesthetic Complications, or any previous history of multiple surgeries, categorizing the patient as high risk patient, was never recorded in the case sheet or discharge summary.  This fact achieves more significance in the light of the patient having been admittedly treated by the same Doctor even prior to her having been admitted in this Hospital. The anesthetic note prior to the conduction of the surgery does not anywhere state that any test dose was given and if the anesthetic dose was given as per the weight and other procedures adopted under normal medical practices.

26.     It is not in dispute that the patient’s condition deteriorated and she suffered from severe abdominal pain, urinary problems in bowel movements, pain and numbness in left leg with repeated seizures and fits, she was under the treatment of Dr. Velmurugan, Neurosurgeon who treated her till 14.10.2003 and thereafter she was admitted to Sri Ramachandra Medical Centre on 15.12.2003, from where she was discharged on 27.12.2003. The discharge summary dated 27.12.2003 of Sri Ramachandra Medical Centre, Chennai reveals the final diagnosis, the history and the treatment course in the Hospital as follows:

“ Final Diagnosis: Post OP  Leminectomy L3-L4, L5-S1 with mild Annular Bulge with Extensive Arachnoiditis. 

History:  Bowel and bladder incontinence- 2 months. Following surgery for pain in low back (underwent laminectomy L3-L4, L5-S-1)  which was done outside.

Course in the Hospital: Patient admitted CT scan of brain and MRI lumbar spine done, neurosurgical opinion was taken and adviced to treat conservatively, treated conservatively with steroids, antiinflammatory agents, gabantin, and antibiotics etc. and physiotherapy, she responded favorably to the medication and is able to walk with support and advised to take medication regularly and physiotherapy.”

27.     It is recorded in the discharge summary that the patient was suffering from bowel and bladder incontinence for two months, she was conservatively treated and she was able to walk with support.

28.     In the case history dated 09.10.2003, the only history which the patient had was appendectomy surgery done 8 years ago with no other significant illness in the past.  Though the patient was seen later by Dr. Jaganathan, Cardiologist, after the cardiac arrest, no specific history of any heart disease or congenital condition was recorded. Learned Counsel for the Respondents relied on the Medical Literature on ‘Treatment of Post-operative Complications of Martin Krismer and  Nobert Boos’ in which the comparison of complications and the preventive measures are referred to as hereunder:

“Disc Herniation and Spinal Stenosis

Several papers reported on complications in surgery for disc herniation [62], or posterior procedures, where decompression of disc herniation or of spinal senosis contributed to 84% of the cases, and where fractures, infections and malignant lesions were excluded [26].  In 27576 and 18122 operations death occurred in 0.5% (within 30 days) and 0.07%, respectively.  Mortality depended strongly on age, being 0% up to the age of 40 years, and 0.6% at the age of 75 years and over [26]. Most deaths occur in elderly patients due to:

                                                                  Perioperative         mortality depends on

age and comorbidities

• cardiac infarction

• heart failure

• central nervous system complications

• septic shock

The incidence of an iatrogenic neurological deficit was cited as 1.0% for disc herniation and 1.8% for stenosis [85].  A dural leak occurred in 1.4%.  The incidence of a leak deceased with increasing surgical experience from 3.1% (experience 1-6 years) to 1.1% (>15years), whereas the surgeon’s experience did not influence the rate of neurological complications.

Comparison of Complications

Spinal surgery is no more prone to complications than other major orthopedic interventions. Lethal and even neurological complications occur more often in hip, knee and shoulder arthroplasty than in spine surgery.

Preventive  Measures

It is self-evident that it is better to avoid complications than to treat them. Complications cannot be avoided completely, but the best conditions can be created to obtain a low complication rate. This goal is a achieved by:

• Preoperative identification of risk factors

• Patient referral to a larger center (in case of insufficient

       surgical experience)

• Optimal patient preparation (e.g., correction of malnutrition)

• Standardization of procedures

• Postoperative checks to detect neurological, pulmonary, and cardiovascular deterioration

It is quite obvious that an experienced specialist will cause fewer complications.”

Learned Counsel also drew my attention to the following complications which may occur during surgeries of the spine, as stated in the Medical Literature titled,  ‘Preoperative and Surgical Planning for Avoiding Complications’  by Mehmet Zileli, Said Nederi, and Edward C. Benzel.

• Thoracic Duct Injury

• Major Vessel, Lung Apex, and Gland Injuries

• Brachial Plexus Injury

• Intercostal Neuralgia

• Chest wall Deformity and Scar

• Implication avoidance in the Thoracic, Lumbar and sacral

          Spine

• Potential Injuries Associated with Dorsal Surgery

• Instability and Deformity

• Potential Injuries Associated with Ventral Surgery

• Pulmonary Injury

• Lumbar Sympathetic Plexus Injury

• Superior Hypogastric Plexus Injury

• Graft Pseudarthrosis

• Vertebral Avascular Necrosis

• Ventral Planting Complication”

   

He further submitted that failure to improve postoperatively for which most likely reason is inadequate decompression.  Another cause of failure may be OPLL which may be easily over-looked on a pre-operative MRI Scan.

29.     Though the aforenoted Medical Literature lists the complications and the preventive measures, nowhere it is stated that cardiac arrest is a known complication.  In fact, ‘Cardiac Infarction and heart failure’ was stated to be mainly in the age group of 75 years and above, whereas in the instant case the patient was a young woman of 23 years without any previous history of cardiac complications.

30.     Learned Counsel also relied on Extensive Arachnoiditis being the cause for the patient’s condition. It is clearly stated in the Medical Literature that the said condition increases in patients who have had multiple spinal surgery procedures, whereas in the instant case this is the first spinal surgery which the patient was undergoing, be that as it may, the post-operative complications which the patient had suffered from with repeated seizures and fits and the cardiac arrest cannot be attributed to Arachnoiditis alone. The Medical Literature explains that Arachnoiditis is a progressive painful condition which arises immediately after a spinal tap, epidural injection or surgery. The fact remains that the patient had to undergo lot of suffering, pain, disabilities and psychological and neurological problems subsequent to the surgery, which complications, admittedly could have arisen on account of the cardiac arrest.

31.     The observation of both the fora below that there was no expert opinion is unacceptable in the light of the decision of the Hon’ble Apex Court in “V. Kishan Rao Vs. Nikhil Super Specialty Hospital, 2010(5)SCC 513” has observed as follows:-

“this Court is constrained to take the view that the general direction given in paragraph 106 in D'souza (supra) cannot be treated as a binding precedent and those directions must be confined to the particular facts of that case”.

“In most of the cases the question whether a medical practitioner or the hospital is negligent or not is a mixed question of fact and law and the Fora is not bound in every case to accept the opinion of the expert witness. Although, in many cases the opinion of the expert witness may assist the Fora to decide the controversy one way or the other”.

32.     Keeping in view the above-noted finding of the Hon’ble Supreme Court, it can be safely construed that it is not mandatory for the Consumer Fora to take the opinion of an expert, except, in those cases where they deem it necessary.  In the instant case, the hospital record speaks for itself and I do not find it a fit case to call for an expert’s opinion, as the facts and circumstances of the case and the evidence adduced establish the act of omission/Commission of the hospital and the treating doctor.

33.     For all the aforenoted reasons it can be stated that the duty of care as envisaged by the Hon’ble Apex Court in “Dr. Laxman Balkrishna Joshi Vs. Dr. Trimbak Bapu Godbole & Anr.” (supra), has not been observed in this case. 

34.     It is observed from the record that the United India Insurance Company Limited was proceeded ex-parte before the Fora below.  Even before this Commission, the third Respondent was not present during the final hearing to present his case. 

35.     In a catena of decisions, the Hon’ble Supreme Court has laid down that the hospital is liable for the acts of the treating doctor and his team.  The Hon’ble Apex Court in “Savita Garg Vs. National Heart Institute, (2004) 8 SSC 56”, relying on the decision rendered by the English Court in the case of  Gold & Ors. Vs. Essex Country Council reported in [1942] 2 All E.R. 237, quoted Lord Denning, J.  and observed that the Hospital Authority is liable for the negligence of the Doctors and Surgeons employed by the Authority under a contract for service arising in the course of the performance of their professional duties.  It was held as follows:-

“The hospital authority is liable for the negligence of professional men employed by the authority under contracts for service as well as under contracts of service.  The authority owes a duty to give proper treatment medical, surgical, nursing and the like- and though it may delegate the performance of that duty to those who are not its servants, it remains liable if that duty be improperly or inadequately performed by its delegates”.  

36.     The Hon’ble Supreme Court has also quoted the case of “Achutrao Haribhau Khodwa Vs. State of Maharashtra and Ors.”, 1996 (2) SSC 634 and observed that “even the Government Hospitals are liable for the acts of their employees”.

37.     Therefore, the contention of the hospital that they cannot be made liable as the patient had contacted the treating Doctor, who is only a Consultant Doctor, cannot be sustained.  Further, it is pertinent to note that the hospital has admitted in this Written Version that they have received amounts towards hospital charges.  For all the aforementioned reasons, this Revision Petition is allowed and the order of the fora below is set aside directing all the three respondents jointly and severally to pay a reasonable lumpsum amount of ₹10,00,000/- towards medical expenses incurred, the mental agony suffered, loss of life of the patient and also towards loss of love and affection on account of the patient’s death.  This amount shall be paid  to the Complainants within a period of four weeks from the date of receipt of this order, together with costs of ₹10,000/-, failing which the amount shall attract interest @ 9% p.a. from the date of filing of the Complaint till the date of realization.

38.     I appreciate the assistance provided by Ms. Padma Priya, Amicus Curiae. She shall be paid an amount of ₹12,000/- as out of pocket expenses, if not already paid.