For the Complainant : Dr. Kamat (Representative) For the Opposite Party no.1 : Dr. Chulani (Representative) For the Opposite Party no.2 : Mr. Shirsath (Advocate) *-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*- Per :- Mr. J. L. Deshpande, President Place : Bandra -*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*- ::::: JUDGMENT ::::: Facts giving rise to this complaint may be stated, in brief, as follows : The complaint is about the alleged negligence on the part of the Opposite parties in giving medical treatment to the Complainant’s daughter by name –Sonakshi Agrawal, aged-8yrs who died at about 8.30a.m. on 11th June, 2004 at the Opposite party no.1-Hospital. The Opposite party no.1 is said hospital whereas the Opposite party no.2 is a Medical Officer who was working with the Opposite party no.1 at the time of incident. 2 It is the case of the Complainant that deceased was suffering from Fever and Vomiting for two days on 9th & 10th June, 2004. On 11th June, her health detoriated and she was admitted at the Opposite party no.1 –hospital at about 3.00a.m. on 11th June, 2004. She was examined and got admitted by Dr.Mili Gala and I.V.Fluid was started. The deceased became uneasy and started giving jerks but request to call Doctor was ignored by nurse. Then patient had breathing problem. At about 6.15.a.m. condition of the patient detoriated and she was shifted to Pediatric Intensive Care Unit -(PICU). Dr.Ugra-the Opposite party no.2, who was supposed to give treatment to the patient, was not informed. Ultimately, patient died at about 8.30.a.m. Postmortem on the dead body was conducted and cause of death was Pneumonitis (Lung Infection). On the same day i.e. on the 11th June, the Complainant filed First Investigation Report (FIR) with Bandra Police Station making allegations of negligence against staff and Doctor of the Opposite party no.1-hospital. 3 It is the case of the Complainant that the patient was not examined by any of the doctor from 3.30a.m. to 6.30a.m. and Symptoms and Signs shown by the patient were ignored; Blood Pressure, Hydration Level, Pulse, etc. were never recorded after I.V.Fluid was started. In fact, the Opposite parties did not realise significance of the patient’s condition and did not call the Opposite party no.2 who for the first time came to the hospital at about 8.00a.m. Thus there had been negligence on the part of the Opposite parties in giving medical treatment to the patient on account of which the patient died. Thus, according to the Complainant, the Opposite parties are guilty of negligence in giving medical treatment to the Complainant’s daughter and thus they are further guilty of deficiency in service. The Complainant has sought declaration to that effect and compensation in sum of Rs.18,00,000/-. 4 The Opposite party no.1-hospital filed its written version of defence and admitted that the patient was admitted at the hospital at 3.30a.m. on 11th June and thereafter, treatment started. There was no fever and the patient was alert and conscious. Provisional Diagnosis by the resident doctor–Dr.Mili Gala was of fever with moderate dehydration. The Opposite party no.1 submitted that the patient was examined and treated constantly by Dr.Mili Gala and about 6.30a.m. the patient was shifted to PICU (Pediatric Intensive Care Unit) where Dr. Shivanand Medar, Sr. Pediatric Registrar examined the patient. The Opposite party no.1 has denied the allegations of medical negligence on the part of the doctors treating the patient. In the mean time, ECG was taken and at 5.00a.m. Urine, Blood was collected for investigation and sent to Laboratory for testing. Thus, according to the Opposite party no.1, there was no lapse on the part of any of the doctor. 5 The Opposite party no.2 under whose care the patient was admitted filed separate written statement and submitted that for the first time he received phone call from the Opposite party no.1-hospital at around 6.45a.m. about admission of the patient and transfer of the patient to PICU. On getting message, he went to the Opposite party no.1-hospital and reached there at 8.00a.m. and at PICU Dr. Shivanand Medar, was managing the patient but by that time condition of the patient was detoriated and the patient died at about 8.30a.m. Thus the Opposite party no.2 has denied the allegations of negligence in giving treatment to the patient and deficiency in service. 6 The Complainant annexed to affidavit of rejoinder certain statements recorded by Police and they included FIR dated, 11th June, 2004 lodged by Complainant with Bandra Police Station, statement of Mrs.Tulika Agrawal, who is wife of the Complainant, statement of Dr.Mili Gala, Resident Doctor and statement of the Opposite party no.2- Dr. Deepak Ugra under whose care the patient was admitted. Those statements were referred to by the Opposite parties during the course of cross-examination of the Complainant and his wife- Mrs.Tulika Agrawal to bring on record certain contradictions /omissions vis-à-vis those statements. Before filing of this complaint, the Complainant had approached Association for Consumer’s Action on Safety and Health, referred to by the parties as ACASH. There had been correspondence between the Complainant and ACASH regarding queries which the Complainant had communicated to ACASH for their response. ACASH in turn had sought opinion of Dr.Ambekar. The Opposite party not produced copies of that correspondence before this Forum vide their application, dated, 27.07.2007 and copies of the same were sent to Commissioner who was appointed by this Forum to record cross-examination of the witnesses. In the later part of the judgment, there would be reference to those documents from ACASH which were produced before Commissioner and admitted in evidence. 7 During pendency of the complaint, the Opposite party no.1 –hospital filed application, dated, 15.11.2006 to appoint Commissioner to record cross-examination of the Complainant’s witnesses. Our Predecessor Forum vide order, dated, 23.02.2007 allowed that application and persuant to that order Mr. Purandare, Retd. District Judge was appointed as a Commissioner who recorded cross-examination of the Complainant himself, the Complainant’s wife –Mrs. Tulika Agrawal and the Opposite party no.1 witness –Dr.Amdekar and transmitted the record to this Forum. In the mean time, on the application filed by the Opposite party, the Complainant’s Representative –Dr. Kamat was debarred, from appearance before this Forum but that order was challenged before Hon’ble State Commission. This resulted into causing delay in termination of the proceeding. 8 When the proceeding were pending before the Commissioner for recording of evidence of the witnesses, the Complainant filed application before this Forum on 26.04.2010 to call entire file of the correspondence between the Complainant and ACASH and it was submitted that documents were selectively produced by the Opposite party before the Commissioner and material documents were left out and they were in custody of ACASH. Persuant to the order passed by this Forum, representative of the ACASH produced entire file of this subject and it was transmitted to Commissioner. 9 We have gone through pleadings, affidavit of evidence, medical case papers, hospital record and written arguments. We have heard oral submissions of Representatives of the Complainant, Representative of the Opposite party no.1 and Advocate for the Opposite party no.2. Record of the present case is huge which consist of pleadings, affidavits, medical record, evidence recorded by the Commissioner and notes of arguments with copies of case laws. We have sorted out the record and divided the same in three files. In file no.1, there is Roznama, pleadings of the parties and copies of the medical papers annexed to the pleadings. In file no.2, there are written notes of arguments filed by the parties with copies of the case laws and papers received from ACASH which were not exhibited and in file no.3, there are affidavits of evidence of the parties, evidence recorded by the Commissioner from page no.1 to 36 and copies of the medical papers. We will refer to relevant page number with regard to the particular document. 10 We take the points that arise for our consideration and record our findings there-against as below:- Nos. | Points | Findings | 1 | Whether the Complainant has proved that the Opposite parties were negligent in giving medical treatment to the deceased and they are guilty of deficiency in service ? | Yes, proved against the Opposite party no.1. | 2 | Whether the Complainant is entitled to recover compensation from the Opposite parties as claimed in the complaint ? | Yes, Rs.5,00,000/- from the Opposite party no.1. | 3 | What order ? | Complaint is partly allowed. |
REASONS FOR FINDINGS:- 11 There is no dispute about the fact that the patient by name –Sonakshi Agrawal, aged-8 yrs was admitted at the Opposite party no.1-hospital in early hours of 11th June, 2004 and on admission, she was supposed to be treated by the Opposite party no.2. The patient was kept in room no.1041 at the Pediatric Ward. There is no dispute about the fact that around 6.30a.m., health of the patient detoriated and she was shifted to PICU. There is no dispute about the fact that the patient was declared dead at about 8.30a.m. Thereafter, the Opposite party no.1 got the post mortem done at Cooperage Hospital, Bombay and cause of death as shown was Pneumonitis -(Lung Infection). 12 As per record, the patient was suffering from fever and vomiting for two days i.e. on 9th and 10th June, 2004. She was treated by family doctor and antibiotics and certain other medicines were prescribed but her condition did not improve and the Complainant decided to admit her at the Opposite party no.1-hospital and accordingly, she was admitted at the Opposite party no.1-hospital at 3.30a.m. on 11th June, 2004. While admitting the patient, mother of the patient was along with her and she narrated the history of the patient which came to be recorded by Dr.Mili Gala, Resident Doctor-referred to by the Opposite party as Pediatric Registrar. Following was the brief history as well as results of the general examination at the time of admission of the patient at 3.30a.m. at the hospital as recorded by Dr.Mili Gala, “There was a history of fever and vomiting of three days duration. The history of fever was that it was of mild grade which subsided with Crocin. There was history of 3-4 episodes of vomiting per day since three days. The vomits were non-bilious (without bile) and non-projectile. There was no history of loose stools or abdominal pain. There was no history of altered sensorium and no history of dysuria (painful urination). There was history of mild (+) oliguria (reduced volume of urine being passed). Ms. Sonakshi Agrawal had been delivered normally, the immunization status was complete, her milestones normal and nutrition adequate. There was no past history of any illness nor any family history of significance. On examination, she weighed 27 kilograms. There was no fever (afebrile), pulse was 60/minute and blood pressure 100/60 mm Hg. There was mild (+) pallor (paleness) and the throat was normal. The extremities were cold and clammy, the tongue dry and the capillary refill time of 3 seconds. The child was alert and conscious. The respiratory system-there was no distress and Air Entry Both side Equal (AEBE). The cardio-vascular system (CVS)-S1S2-normal and there was no murmur. Abdominal examination P/A-soft. The Central Nervous System (CNS) – Conscious and alert and reflexes present (+). Provisional Diagnosis of Fever with moderate dehydration”. 13 On admission I.V.Fluid was started. Entries in Treatment sheet which is at page no.107 (Pencil) (file no.1) shows that besides I.V.Fluid, Inj. Emset were given to the patient. It is not alleged by the Complainant that this treatment has any adverse effect on the patient but his allegations are different in nature which we will deal in later part of the judgment. 14 At 6.30a.m. it was noted that the patient was agitated / irritable, the pulse and B.P. was not recordable and hence was shifted to Pediatric Intensive Care Unit-PICU. There the patient was examined and treated by Dr.Shivanand Medar, Sr.Pediatric Registrar and his observations are recorded in the progress note which is at page no.18 of the written version of defence filed by the Opposite party no.1. The condition of the patient as noted by Dr.Shivanand Medar at the PICU was On examination the patient agitated and confused, pulse -156 /min., feeble. RR (Respiratory Rate) 28/min. BP (Blood Pressure)- Unrecordable manually -40/16 on monitoring. Extremities cold & clammy. CRT (Capillary Refill Time) - 4 sec. RS (Respiratory System) Clear- Saturation -86% CVS (Cardio Vascular System) S1S2 +, Heart Sounds Feeble. PA (Per Abdomen)-soft L3cm (Liver 3cm), S0cm (Spleen 0cm). BS (Bowel Sound) + in four quadrants. CNS (Central Nervous System)- agitated, irritable, conscious. Hypotonia +, Power – moves limbs spontaneous. Impression-8 yr. old FCh (Female Child) with fever and vomiting –sudden onset hypotension. Adv. I.V. (Intravenous fluids-Gr II corrected 250 cc NS (Normal Saline) IV push- Inj. Adrenaline drip.0.5 microgram/kg/min. Inj. Dopaamine (10 microg/kg.min), Inj. Dobutamine. Progress Notes recorded at PICU from page no.19 to 22 reveal that the condition of the patient got detoriated, pulse not palpable and BP not recordable. At 7.20a.m. IPPV (Intermittent Positive Pressure Ventilation) with CPR (Cardio Pulmonary Resuscitation) was continued. In the mean time, at about 8.00a.m. the Opposite party no.2-Dr. Deepak Ugra arrived at the hospital and went to PICU and observed the treatment which was been given by Dr.Shivanand Medar. Copy of the progress notes recorded by Dr.Deepak Ugra is at page no.23 of the written version of defence. He also advised to continue CPR. The written statement as well as progress notes at the PICE reveals that the patient was declared dead at 8.30a.m. and parents were informed about the same. 15 The Complainant alleges that he insisted for post mortem of the dead body of the patient whereas according to the Opposite party no.1 it decided to go for post mortem to know the cause of death. Rival claims apart, fact remains that dead body was subjected to the post mortem which was conducted at Cooper Hospital. The Complainant himself has produced copy of the post mortem report at page no.33 in file no.1. Column no.19 of the PM Notes reveals that brain was congested and Oedematus having dirty white patches were over base. Entries in the column no.20 of the PM Notes reveal that both the lungs were congested and Oedematus. Cause of death was death due to Pneumonitis – lung infection. In the written notes of argument representative of the Opposite party no.1 has commented upon finding about the cause of death – Pneumonitis not being found in the Medical Literature. However, final cause of death was Pneumonia. This shows that Medical Officer who conducted the Post Mortem wanted to convey that cause of death was Pneumonia. This is consistent with finding in the PM Notes where it was recorded that both Lungs were congested. Pneumonia is lung infection that can be caused by different types of Microorganisms including bacteria, viruses including fungi. Pneumonia is suspected when there is breathing difficulty, abnormal sound in the chest and diagnosis is confirmed by chest X-ray. Bacterial and Fungal Pneumonia can be treated as anti-virus. 16 The Complainant has not alleged negligence or deficiency in service at the hands of the doctors and staff at PICU. Principal contention of the Complainant is that the patient was not attended by Resident Doctor –Dr.Mili Gala during the period 3.30 to 6.30a.m. and during that period the patient was only attended by staff at the ward and signs shown by the patient communicated by mother of the patient were overlooked and Dr.Ugra was not informed but falsely it was represented to the patient’s mother that they were in touch with Dr.Ugra. 17 The complaint itself is affirmed. In addition to that the Complainant filed affidavit of evidence along with the complaint itself. The Complainant was cross-examined before the Commissioner by the Opposite parties about his affidavit wherein he has relied upon the allegations in the complaint and documents annexed to the same. In the complaint, the Complainant has made following pertinent allegations : At about 4.45a.m., the patient became very uneasy and had some ‘jerks’ in her body. These symptoms were never seen in last 2 days and my wife summoned the nurse on duty, who after examining her stated that there ‘was nothing to worry, as this was common symptoms in such cases’. After 15-20 minutes, the same jerks and agitation manifested at which my wife summoned the nurse again. The nurse raised one side of the bed and reassured my wife again. A request to call the doctor on duty was ignored. After a few minutes, the same symptoms manifested again at which my wife rushed to call the nurse, who came to the room, said that the patient had a breathing problem and put an ‘Oxygen Mask’ around the face of the patient. My wife called me at home and informed me about the fresh turn of events. Dr. Mili Gala came to see the patient at around 6.15a.m. only, stated that the patient’s condition had deteriorated and that she would have to be shifted to the Intensive Care Unit (ICU). We asked nurses earlier many times as to why Dr. Ugra has not been summoned to see the patient, we were told that they were in constant touch with Dr. Ugra and everything was fine. 18 At page no.3 & 4 of the complaint, under the caption main deficiency in service and medical negligence in the treatment of the patient, the Complainant has made specific allegations about the alleged deficiency in service on the part of the Opposite party no.1 qua treatment to the patient. It consists of nine paragraph. Theme of the allegations is that from 3.30 to 6.30a.m. Dr.Mili Gala did not attend the patient and symptoms and signs like difficulty in breathing, uneasiness, jerks, etc. were ignored till such time it was too late. The Complainant in order to render corroboration to the allegations has relied upon entries, rather absence of the entries in the treatment notes as well as statements recorded by the Police. 19 The Complainant was cross-examined by representative of the Opposite party no.1. He admitted that he had approached ACASH and received communication from them. He further admitted that one of the phone call included in the call list of his cell phone was to his friend and other three calls were to the Opposite party no.1- Lilavati Hospital. This was in the context of the allegations in the complaint paragraph no.8 of the complaint where the Complainant alleged that he desperately tried to contact Sr. Doctors attached to Jeslok and Nanavati Hospital for some help. Evidence of the complaint, does not show that during the period 3.30 to 6.30a.m. he had contacted any of the Doctor from outside hospital but it has come in the statement of Dr.Ugra (the Opposite party no.2) recorded by the Police that while he was coming from his residence to the hospital, he received a phone call from Dr. Khubchadani making enquiry about a girl admitted at the Opposite party no.1- hospital but it was around 7.45a.m. at which time, the Complainant had already reached at the Opposite party no.1-hospital. That time the patient was at PICU being shifted from the ward. The Complainant might have made these phone calls after he reached the Opposite party no.1-hospital at 6.15a.m. but not before that. This inference get support from the statement in the cross-examination of Mrs.Tulika Agrawal where she stated that her husband (the Complainant) left the hospital around 4.15a.m. and returned around 6.45a.m. – it was after the patient was taken to PICU. She admitted that she was not having cell phone. She admitted that her attempt to contact her husband was not successful and ultimately, between 5.45 to 6.00p.m. with the assistant of the nurse, she could contact her husband. We have referred to this piece of evidence to show that the Complainants evidence in paragraph no.8 of the complaint is partly correct in the sense that he tried to contact other Doctors from Jeslok and Nanavati Hospital but after reaching the hospital at 6.30a.m. and not before that. In fact, the Complainant to a pertinent question in paragraph no.9 of his evidence stated that he contacted Dr. Khubchandani from Jaslok Hospital at 8.04a.m. and Dr. Irani of Nanavati Hospital at 9.00a.m. 20 In the later part of the cross-examination, the Complainant was confronted with statement in the paragraph no.5 of the complaint where it was alleged that request to call to the Doctor on duty was ignored. It was brought to his notice that in the nurses’ record there is an entry that Dr.Gala assisted the nurse in connecting the vein. We have verified the record. The Complainant admitted that Dr.Gala had assisted nurse for collecting Blood Sample for investigation but added that it was only for limited purpose to assist nurse for collection of blood. Then in the later part of the cross-examination, the Complainant was confronted with temperature chart annexed to written version of defence at page no.53 which shows recording of temperature, pulse, BP and respiration on two occasions. The Complainant could not explain the same. We will discuss entries in the chart at page no.53 in the later part of the judgment, in the context of weight to be attached to those entries. 21 The Complainant has filed affidavit of his wife -Mrs.Tulika Agrawal (mother of the patient) which is at page no.413 in the file no.3. Admittedly, all the while she was along with the patient. It was natural, she being mother of the patient. In her affidavit she stated that on admission I.V.Fluid was started to the patient and after some time patient complained that she was feeling very warm and this was despite the fact that A.C. in the ward was being switched on. She informed this fact to the nurse on duty and she said that it was normal. After some time nurse came for collecting blood but she had difficulty in getting a vein and she called Dr.Gala for Assistance and accordingly Dr.Gala helped the nurse and that time she (witness) informed Dr.Gala that the patient was feeling warm but Dr.Gala did not pay heed to the same. According to the witness, Dr.Gala asked her whether Hemoglobin Test was ever conducted and went away. Witness stated that there was no monitoring check-up by Dr.Gala at the time of that visit. Witness further, stated that around 4.45a.m. the patient became very uneasy and had jerks, in her body. Those signs were never seen in the previous two days and she summoned the nurse on duty who after examining the patient stated that there was nothing to worry. According to the witness, request to call the Doctor was again ignored. According to the witness, after 15 to 20 minutes she saw repetition of jerks by the patient and the patient was agitated. She called the nurse and the nurse raised the bed level on one side. According to the witness, she requested the nurse to call the Doctor but that request was again ignored. 22 Witness-Mrs. Tulika Agrawal further stated that after sometime same symptoms (jerks and agitation) manifested and she went outside to call the Doctor but she was not available. The nurse came there and found that the patient had breathing difficulty and the nurse put on the oxygen mask immediately. In paragraph no.10 of the evidence witness had deposed that during the period of three hours of stay at ward (3.30 to 6.30a.m.) except one short visit by Dr.Gala to help nurse to extract blood for investigation, neither Dr.Gala nor any other Doctor visited the patient and detoriating condition of the patient was handled by the nurse. 23 Pursuant to the FIR lodged by the Complainant at Police Station, Bandra on the same day of death of the patient, the Police had recorded statements of Mrs. Tulika Agrawal (mother), Dr.Mili Gala and Dr.Ugra. Those statements have been annexed by the Complainant to his affidavit of rejoinder which is at page no.325 in file no.3. Police had recorded statement of witness-Mrs. Tulika on 10.07.2004 i.e. after one month of the death of the patient. Being mother of the patient, she might be upset and might have taken some time to regain composer and become normal. Thus delay in recording the statement is understandable. In the statement recorded by the Police she has stated about vomiting and temperature for two days and treatment given by their Family Physician –Dr.Naber. Then she stated that patient was admitted at the Opposite party no.1-hospital under Dr.Ugra – the Opposite party no.2. On the material point she stated that Dr.Mili Gala informed her that it was a case of dehydration only (underline offered). At about 4.00a.m. the patient had acute feeling of nausea. The patient was telling that she was feeling inflated. Before Police she also stated that the patient had given jerks on two-three occasions and staff on duty consoled her by stating that it was due dehydration. She also stated that the patient was feeling nauseatic and was making attempt to seat. That time staff on duty put Oxygen Masks on use and after some time Dr.Mili Gala came. That time also Dr.Mili Gala told her that it was due to dehydration. We have gone through the statement and it render corroboration on material points which appeared in the affidavit of evidence of the witness vis-à-vis overlooking the symptoms exhibited by the patient and request by mother to call Doctor and absence of medical check-up during that period. 24 The Complainant as well as his wife –Mrs. Tulika were confronted with their statements recorded by the Police and omission in the statements recorded by the Police were brought on the record. In the complaint, the Complainant alleged that hospital staff informed them that they were in constant touch with Dr.Ugra and everything was fine. Mobile number of Dr.Ugra was not furnished and it was informed that he was expected soon. These statements do not appear in the statement of the Complainant as well as his wife- Mrs.Tulika recorded by the Police. Obviously, these statements vis-à-vis Dr.Ugra are improvements. But those omissions are of little consequence in the sense that the Opposite party no.2 in his affidavit of evidence (page no.369 pencil) has deposed that he was informed about this patient for the first time at 6.45a.m. while he was at his residence and then he darted to the hospital. The Opposite party no.1 in the written version of defence or affidavit of evidence has not disclosed the time when Dr.Ugra was called. Copy of the treatment note which is under signature of Dr.Ugra (page no.483) shows that he examined the patient at PICU at 8.00a.m. In any case, Dr.Ugra was not informed till the patient was shifted to PICU which shows that resident Doctor did not inform concerned Doctor till condition of the patient had worsened. Even instructions were not sought from Dr.Ugra. No other Sr.Doctor at the hospital was consulted. This was despite the fact that the patient had shown different symptoms like jerks and being inflated. During the course of the cross-examination of Mrs.Tulika (page no.20 of Commissioner Report) it was elicited by the Opposite party no.1 that at 4.45a.m. the patient had jerks which were never seen before. This question was asked to get confirm her statement in the affidavit on the same point. Representative of the Opposite party no.1 perhaps conducted this exercise in consistent with their stand that the patient suddenly had a shock and hypotension. This development, which according to the witness, had taken place after some time from the admission, remained unattended. 25 Since we have referred to evidence of the Complainant and his wife-Mrs.Tulika in the context of omissions in their statements made before the Police with regard to their quries about Dr.Ugra, we deem it proper here to mention that in view of those omissions which have been brought on the record during the cross-examination, it can be said that there evidence to that extent is improvement. However, entire statement recorded by the Police can not be brushed aside. Before the Commissioner at one stage objection was raised by the Opposite parties to particular statement in the Police statement on the ground that it was not admissible in evidence. However, Close reading of Section-162 of Criminal Procedure Code would make it clear that use of statement recorded by the Police under Section-161 of Criminal Procedure Code is prohibited at any enquiry or trial of any offence under investigation at the time when such statement was made. This Consumer complaint is not trial of any offence. Even it is not known whether offence was registered on the basis of FIR lodged by present Complainant at Bandra Police Station. That being the position statements of the Complainant and his wife recorded by the Police could be used as corroborative piece of evidence. Such statements could be used in Civil as well as Quasi Civil Proceedings. If considered in this context, as observed above, statement of Mrs.Tulika recorded by the Police to a large extent render corroboration to her affidavit of evidence about not any heed being paid to the symptoms and changes shown by the patient. 26 In the context of not giving information to Dr.Ugra and not calling him, the Opposite parties have relied upon decision of Hon’ble National Commission in the case of Rishi Pal Singh and others V/s Aligarth Muslim University and Dr.M.H.Beg. (2007 MLR 450). In that case Hon. National Commission held that if line of treatment given by attending Doctors is proper, there can not be deficiency in service only because Sr. Doctor did not attend the patient. In that case following were the basic facts. The deceased having shot himself was rushed to the Hospital with a gun shot injury on the chest. Three Doctors on duty attended on the patient, sealed the flow of blood, gave blood transfusion and also administered necessary medicines. The senior Doctor who was in charge of the Emergency Department was not on duty but he was informed and he rushed to the casualty ward but the patient having developed Cardiopulmonary attack died within half an hour of his admission in the Hospital. Father, mother and sisters of the deceased filed a complaint alleging medical negligence on the part of the Hospital as the patient was not attended by a senior surgeon and that the specific treatment could not be provided by the junior doctors”. Obviously, facts were different and the Sr. Doctor was informed and he darted to the patient but before that wound were sealed but the patient unfortunately died. In view of the above stated facts, ratio of that case cannot be made applicable to the present case. 27 The Opposite parties in their attempt to show that there was no negligence on the part of staff and attending Doctor; have examined Dr.Amdekar whose affidavit is at page no.385 in file no.3. Before adverting his affidavit some other facts which have cropped from the material on the record needs to be mentioned. On death of the patient, the Complainant had approached ACASH to seek their opinion or rather answers to his quires. The Complainant at page no.4 in the record of the Commissioner admitted that he had written to ACASH and had send copies of medical record along with the communication. ACASH in turn had sought opinion from Dr.Amdekar and on the basis of that opinion ACASH send communication, dated 10.09.2004 to the Complainant. It came to be marked exhibit-5 in the Commissioner’s record and Dr.Ambdekar’s opinion to ACASH, dated, 07.09.2004 is marked at exhibit-6. During the course of his evidence, Dr.Amdekar admitted these communications. It appears that the Complainant’s representative -Dr.Kamat objected production of these documents by the Opposite party no.1 on the ground that it contains a disclaimer clause at the end of it namely that “ACASH does not take responsibility for the opinion being produced in the Court”. The Communication exhibit-5, dated, 10.09.2004 was send by ACASH to the Complainant which the Complainant has admitted to have received and communication exhibit-6, dated, 07.09.2004 was the opinion given by Dr.Amdekar to ACASH which Dr.Amdekar admitted in his evidence. On the basis of that opinion ACASH has send communication, dated, 10.09.2004 to the Complainant. Hence, the objection raised by the representative of the Complainant is overruled and we find that Commissioner rightly received the documents and marked exhibit-5 & 6. At this stage itself, it would be appropriate to state that opinion given by Dr.Ambdekar, exhibit-6, dated, 07.09.2004 is consistent with his affidavit of evidence filed before this Forum. The Opposite party no.1 perhaps has produced exhibit-6 to render corroboration to the evidence of Dr.Amdekar and to show that long before filing of affidavit before this Forum, Dr.Amdekar had given opinion that the patient suddenly went into shock and not giving of information to consultant was misjudgment but may not be construed as laps or negligence. 28 Coming to the affidavit of evidence filed by Dr.Amdekar, (page no.385 in file no.3) paragraph no.1 to 5 of his affidavit pertain to his qualification and his experience which has not been challenged by the Complainant. Following are the observations of Dr.Amdekar, which according to his claim in paragraph no.6 of his affidavit are based upon Hospital documents in respect of the patient, complaint, written statements and Post mortem notes. Observations of Dr.Amdekar are - a “The patient had trivial and vague illness for three days prior to hospitalization. This worsened over a few hours after hospitalization. This strongly suggests underlying subtle illness, which went without recognition because of absence of localization. b Such an illness could be a low grade infection like Tuberculosis or acute evolving illness like Myocarditis. c The hospital records at the time of admission do not suggest that the child was critically ill. d Cold clammy skin in presence of normal blood pressure may indicate the onset of a high fever with resultant peripheral vasoconstriction (contraction) or it could also be due to cold ambient temperature. e Heart rate of 60 beats / minute is at lower limit of normal range at this age. In fact, in shock heart rate increases. The blood pressure recorded was also normal. f Intravenous Fluids at this time is justified based on poor intake, vomiting and decreased urine output. g Records show that investigations sent at this time include CBC, Serum Electrolyters, BUN, Serum Creatinine and Urine Routine and are baseline investigations done in an unidentified illness. A chest X-ray is required in the presence of abnormal physical findings on chest examination or in a breathless child. Hence chest X-ray would rationally not be ordered on admission in such a case. h Sudden deterioration in this patient could be attributed to Cadiovascular, Neurologic or metabolic abnormalities. i Sudden enlargement of Liver at 6.30a.m. indicates sudden onset cardiac dysfunction leading to Cardiac Failure. At this time, no cause of Cardiac Failure was apparent from available records. However, development of Ventricular Tachycardia (Fast Heart Rate) subsequently indicates primary or secondary myocardial involvement. j Following sudden deterioration at 6.30a.m. the child was shifted to Pediatric Intensive Care Unit (PICU) immediately, where standard care to such a critical child was given. k In the statement made by the aggrieved party they questioned timing of death. A child with abnormal heart beat and abysmally low blood pressure on monitoring, even in absence of palpable pulse, should be considered alive and measures of resuscitation be continued. Even after cardiac standstill, efforts should be maintained for some more time to revive the child and it is only then that one may give up efforts at resuscitation and declare death. l Failure of response to such resuscitative measures should be considered for withdrawal only after 20-30 minutes of continuous resuscitation. m Post Mortem Report mentions presence of “dirty white patch” at “the base of the brain.” This indicates an exudates (Liquified Material) and commonly results from infections such as Tuberculosis. In summary it was unfortunate that the child could not be saved but I cannot consider that there was any short coming in diagnosis or hospital management given the time span that was available to the doctors”. 29 The Complainant availed opportunity to conduct cross-examination of Dr.Amdekar before the Commissioner. At page no.30 of the record of the Commissioner, Dr.Amdekar admits that he had given an opinion on the basis of treatment sheet page no.41 & 43 which are in file no.3. To a next question, Dr.Amdekar admits that on page no.43, except consciousness and talking there are no entries. At page no.31 of the record of the Commissioner, to a question which is at the top of the page, Dr.Amdekar admits suggestion that his entire opinion and affidavit is based upon page no.43 regarding condition of the patient between 3.30 to 6.30a.m. In view of the reliance by Dr.Amdekar on entries in treatment sheet page no.43, we deem it proper to reproduce those entries here, Treatment Sheet (Ward) | Date :- 11/06/2004 | 5.00a.m. | S/B Paed Reg. Pt conscious, talking c/o. feeling nauseated Iv fluids on | 6.00a.m. | S/B Paed Reg. Pt conscious, alert Iv fluide on | 6.30a.m. | S/B Paed Reg. Pt agitated / imitable Pulse & BP – not recordable Hence shifted to PICU |
30 Now, close look at the treatment sheet page no.43 reveals that it does not bear Doctor’s signature. Dr.Amdekar also admits this. Furthermore, except consciousness and talking, there are no other entries on page no.43. On the contrary, when Dr.Amdekar was confronted with statement of Dr.Mili Gala recorded by Police, he admitted that before Police Dr.Mili Gala has stated that at 3.30 as well as at 6.00a.m. the patient was severally dehydrated. When confronted with this Dr.Amdekar admits that her (Dr.Mili Gala) subjective statement do not seem to corroborate other part of the same statement that the Blood Pressure and Pulse were normal. Dr.Amdekar, ultimately concluded that, statement of normality does not demand statement of actual numbers. This entire exercise vis-à-vis entries in the treatment sheet page no.43 (reproduced above) was in the context of absence of entries or note in the handwriting of Dr.Mili Gala regarding BP, Pulse rate, and status of hydration during the period 3.30 to 6.00a.m. Dr.Amdekar, however, did not consider this deficiency. 31 Dr.Amdekar in his opinion submitted to ACASH, dated, 07.09.2004 (exhibit-6) in Commissioner’s record referred to the allegations in the complaint that the patient was agitated and burning sensation in the legs but while filing the affidavit does not refer to the same. He does not refer to absence of any response to the complaints of mother that there was something wrong with the child. However, to a pertinent question which is at page no.29 of the Commissioner’s record. Dr.Amdekar admits that there would be need to response to such circumstances. Thus impliedly, Dr.Amdekar admits that there was lapse on the part of staff as well as on the part of Doctor on duty by overlooking the same. Dr.Amdekar has observed in paragraph no.J of his affidavit that sudden enlargement of liver at 6.30a.m. indicates sudden onset of Cardiac Dysfunction leading to Cardiac Failure. He further observed that this time no cause of Cardiac Failure was apparent from the available records. Dr.Amdekar’s reference to “this time” obviously referred to period between 3.30a.m. to 6.30a.m. It could not be because ECG was not recorded in the ward; in fact symptoms shown by the patient were overlooked as being normal in case of Dehydration. Dr.Amdekar, himself support this inference by making statement in clause-J that development of Ventricular Trachycardia (Fast Heart Rate), subsequently, indicates primary or secondary Myocardial Involvement. 32 Dr.Amdekar refers to Post Mortem Report but to the limited extent that it mentions presence of dirty white patch at the base of brain. From this he draws inference of infections such as Tuberculosis. However, he does not refer to cause of death which was recorded as Pneumonitis. PM Notes reveal that both lungs were congested. This is consistent with finding as regards of cause of death. Dr.Amdekar does not refer to the same. He justifies not taking of X-ray at the ward by stating that there was no breathing problem to the child. There must have been such problem because ultimately, around 6.00a.m. Oxygen Mask was put to make the patient survive. In view of the fact that Dr.Amdekar does not refer to the principal grievance of the Complainant and does not consider consequences of the same, we are not inclined to attach any weight to the evidence of Dr.Ambdekar. 33 Dr.Ambdekar’s evidence was, however, also critised by the representative of the Complainant from different angle. During the course of cross-examination of Dr.Amdekar, it was elicited by representative of the Complainant that the Complainant had approached him. Dr.Amdekar says that he heard the Complainant but told him that he would require necessary papers. Thereafter, ACASH send him papers and Dr.Amdekar submitted opinion to ACASH. Dr.Amdekar further stated that when the Opposite party no.2 approached him, he prepared affidavit as per paper submitted by ACASH. Though the Complainant has approached Dr.Amdekar and Dr.Amdekar had heard him, it was without relevant papers. During the course of the cross-examination on re-examination Dr.Amdekar stated that at the instance of one patient’s father he had heard the Complainant but told him that without access to the record, he would not be in a position to make any judgment. That was natural. Obviously, the representative of the Complainant had made attempt to expose Dr.Amdekar to establish that despite hearing the Complainant and giving opinion; Dr.Amdekar made volte of face and supported the Opposite party by filing affidavit. Answers given by Dr.Amdekar to the pointed questions put by the Complainant’s representative do not show that Dr.Amdekar had formed any opinion or had expressed any opinion over the controversy. That appears to be innocuous hearing at the instance of some acquaintance. Therefore, we have not rejected testimony of Dr.Amdekar on the ground that it is evidence of Doctor having no professional ethics. On the other hand, during the course of reexamination conducted by representative of the Opposite party no.1, Dr.Amdekar stated that after affidavit of evidence was filed in this matter the Complainant and his representative –Dr.Kamat visited his clinic and showed him some statement made by him (Dr.Amdekar) in some document and told him that, that statement could be detrimental to Mr.Agrawal- the Complainant. Dr.Amdekar told him that whatever he had written was to the best of his scientific judgment and he would stand by it. Obviously, Dr.Amdekar’s statements against the Complainant contain in his opinion, dated, 07.09.2004 and his affidavit, dated, 11.08.2008 filed before this Forum. Dr.Amdekar’s statement obviously pertains to either of the two documents. That ‘document’ referred to by Dr.Amdekar as shown by the Complainant’s representative might be affidavit because the Complainant during the course of his cross-examination at page no.41 in file no.3 admits that he met Dr.Amdekar after filing of affidavit by Dr.Amdekar but feigns ignorance whether he was alone or alongwith somebody else. It was suggested to him that meeting witness of the other side would amount to subverting due process of law, which suggestion he could not answer. We have referred to all these facts, so that we should not be taken as having disregarded Dr.Amdekar’s evidence being evidence by Doctor without professional ethics. Facts which have come to surface are eloquent. 34 During that period (3.30 to 6.00a.m.) no investigations were conducted at the ward. Blood sample of the patient was collected at 5.00a.m. and sent to the Laboratory and Reports reveals that analysis was done at 6.30a.m. and reports were received after the patient was shifted to PICU. Investigation could have been done or arranged by showing the urgency to unable the treating Doctor to start appropriate treatment. Virtually, till the patient was shifted to PICU except Inj.Emset. (For Nausea) and I.V.Fluid no other treatment was there. It is only at PICU that other Injections started but by that time condition was detoriated. This was because Dr.Mili Gala persisted with her provisional diagnosis of Moderate Dehydration. However, before Police she stated that the patient was severally dehydrated. There is vast difference between Moderate Dehydration and Severe Dehydration. Dr.Gala should have realised that the patient was not dehydrated due to vomiting only and according to her own statement; it was a case of Severe Dehydration. While making translation of her Police statement, it has been translated as complete dehydration which is not possible in case of living human being. Surprisingly, Dr.Amdekar has not considered this inconsistency. 35 During the course of oral argument as well as in the written version of arguments, the Opposite party no.1 has relied upon entries in the chart which show that temperature, pulse rate and BP of the patient was recorded twice at the ward before the patient was shifted to PICU. Those entries are in the four hourly temperature chart which is at page no.35 (pencil -301) and those entries were shown to the witness of the Complainant but wrongly recorded by the Commissioner as page no.53. This is obvious because documents annexed to the written version of the Opposite party no.1 were marked from page no.14 to page no.49, there is no page no.53 to any of the document annexed to the written statement filed by the Opposite party no.1. We have closely observed entries in the chart which start from 02 hrs. and ends at 22 hrs. There are vertical columns for each four hourly examination the first vertical column start from 02 hrs. and next column start from 06 hrs. There is entry in the temperature chart which shows that the temperature was recorded once between 02 to 06 hrs. and it was 98.5 being normal, similar entry appears in the next columns starting from 06hrs. similar are the entries against the column of BP and respiration. Now the patient was in the ward from 3.30a.m. to 6.30a.m. and was shifted to PICU at about 6.15 to 6.30a.m. Entries in the Four Hourly Temperature Chart in column no.2 starting from 6 hrs. show that those entries were recorded at the middle of the column i.e. sometime between 6 to 10 a.m., obviously, they were recorded by the staff and there is no material on the record that they were brought to the notice of Dr.Mili Gala and chart does not bear her signature. Moreover entries as regard respiration do not show any change and it was 27per minute on both the occasions. It could not be because it has come on record that before the patient was shifted to PICU, she had breathing problem and Oxygen Mask was put in use. Chart at page no.35, does not refer to any change and as per entries in the said chart rate of respiration was 27per minutes on both the occasions. Thus entries in the Four Hourly Chart do not depict true state of affairs and entries therein do not rebut evidence of the Complainant. 36 There is one more circumstance which supports this inference. Mrs.Tulika Agrawal, in paragraph no.7 of evidence, stated that after some time, the same symptoms manifested again and she rushed out to call the Doctor, but there was no Doctor on the floor and the Nurse came in and found that the child had breathing difficulty. Said Nurse put on the Oxygen Mask immediately. This event had taken place after the Blood Sample for investigation was collected at 5.00a.m. and before the patient was shifted to PICU. Dr.Mili Gala in her statement recorded by the Police stated that at 6.30a.m. while she had gone to her rest room, staff on duty made phone call and informed her about condition of the patient being detoriated. She rushed to the patient and before her reaching to the patient; Oxygen Mask was already put in use by the Nurse. This shows that she was called by the nurse, after Oxygen Mask was put in use. Staff on duty did not call Dr.Mili Gala, when she found that the patient had breathing problem and Oxygen Mask was required to be put in use but after putting same in use and after sometime Dr.Mili Gala was informed by the Staff that the condition of the patient had detoriated. Dr. Mili Gala in her statement before the Police stated that she had examined the patient at 6.00a.m. but there are no entries regarding BP, temperature, and Pulse being recorded at 6.00a.m. by staff or Dr. Mili Gala. In the treatment sheet which has been relied upon by Dr.Amdekar, there are only vague entries to the effect that patient was conscious, talking and I.V.Fluid was on. It does not refer to changes and symptoms shown by the patient. All these facts show that barring her visit to the patient at about 5.00a.m. to help the staff to collect sample of blood for investigation, Dr.Mili Gala was not reachable / accessible. 37 Above discussed evidence shows that jerks and agitation manifested by the patient were overlooked. She was agitated and request made by mother to pay attention to the same was ignored. Those were the signs of impending shock and they were not sudden. No urgency was shown in doing the investigations. Dr.Mili Gala stuck to her prognosis that it was case of moderate dehydration, other options were not considered. Neither Consultant Dr.Ugra was informed nor Sr.Doctor at the hospital was called. The child was left to the care of staff. Because of casual approach of Doctor on duty, condition of the patient detoriated and when the child was taken to PICU, it became impossible for the Doctors there to restore normalcy. Generally, the patient is bring brought to such hospitals by relations with the hope that proper attention will be paid and every possible attempt would be made to make the patient stable. However, in the present case, no such attention was paid and when urgency was shown and consultant Doctor was called, things had gone beyond control. 38 In order to counter the allegations of negligence and deficiency in service as alleged by the Complainant, the Opposite parties have relied upon certain Hon’ble Supreme Court’s decision to substantiate their contention that set protocol was followed in the present case and condition of the patient detoriated on account of shock and hypotension. The Opposite parties have relied upon Hon’ble Supreme Court’s decisions in the case of Jacob Mathew Versus State of Punjab & Another (AIR 2005 SC 3180); Kusum Sharma and others Versus Batra Hospital (2010 AIR SCW 1315 ) and V. Kishan Rao Versus Nikhil Super Speciality Hospital and another (2010 AIR SCW 4252). 39 We have gone through the broad principles laid down by Hon’ble Supreme Court, in the context of allegations of negligence on the part of Medical Officer. Amongst them we find that Hon’ble Apex Court in Kusum Sharma’s case considered catena of decisions of Hon’ble Supreme Court as well as Foreign Courts and succinctly culled out relevant principles as applicable to the medical negligence. While doing so Supreme Court also referred to ground reality of making allegations against the Medical Officer because untoward incident has taken place. Therefore, we propose to reproduce those principles as well as Hon’ble Supreme Court’s observations, I “Negligence is the breach of a duty exercised 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. II Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error or judgment. III The medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires. IV A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field. V In the realm of the diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor. VI The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence. VII Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession. VIII It would not be conducive to the efficiency of the medical profession if no Doctor could administer medicine without a halter round his neck. IX It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessary harassed or humiliated so that they can perform duties without fear and apprehension. X The medical practitioners at times also have to be save from such a class of Complainants who use criminal process as a tool for pressurizing the medical professionals / hospitals particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioner. XI The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals”. In paragraph no.95 of the judgment, Hon’ble Supreme Court also observed that they should not be understood to have held that Doctors can never be prosecuted for medical negligence. 40 Having read the principles in all these decisions as laid down by Hon’ble Supreme Court, one thing is clear that Doctor can not be held guilty of negligence so long as he follows set protocol and practice acceptable to medical professional of that day. Only because of death of patient or diagnosis being proved wrong, medical professional cannot be held guilty of negligence. 41 In the present case, the allegations against the hospital are not that wrong treatment was given or a drug which should not have been administered, was administered or surgery / procedure, which should not have been undertaken, was undertaken. The allegations are that signs and symptoms shown by the patient and request made by mother of the patient to attend the same were ignored. Thus the present case offer different scenario. By not noticing or giving thought to the signs, symptoms and changes shown by the patient and by sticking to the original diagnosis of moderate dehydration, concerned Medical Officer did not follow the protocol which the Medical Officer at such hospital was supposed to follow. In that sense, the present case falls in the category of Res Ipsa Loquotor. In that context, we have not attached any weight to the contention of the Opposite party no.1 that the Complainant has not adduced evidence of any expert to substantiate allegations in the complaint. On the other hand, the Opposite parties have not adduced evidence of Dr.Mili Gala who was admittedly Medical Officer on duty and she got admitted the patient. The Opposite parties did not file affidavit of evidence of Dr.Mili Gala to substantiate the averments in the written version of defence. All through out stay of the patient at the ward, patient was supposed to be attended by Dr.Mili Gala. She being Medical Officer with the Opposite party no.1-hospital, either present or past, the Opposite party no.1 was in a position to secure her affidavit of evidence and file the same. However, for some inexplicable reasons, the Opposite party no.1-hospital did not file her affidavit of evidence. 42 At the same time, it be noted that the Complainant has not impleaded Dr.Mili Gala as party Opponent. However, the hospital with whom she was working has been made the Opposite party no.1. The Opposite parties in their written version of defence have not raised objection that complaint is bad due to non-joinder of necessary parties. Still then, the Complainant has relied upon Hon’ble Supreme Court decision in the case of Smt.Savita Garg Versus The Director, National Heart Institute. In that case, complaint was filed before Hon’ble National Commission by the Complainant against the National Heart Institute with the allegations that their treating Doctors were guilty of negligence. Hon’ble National Commission dismissed the complaint holding that it was not maintainable in the absence of the treating Doctors being impleaded as party. That order was challenged before Hon’ble Supreme Court by way of appeal. The question before Supreme Court was whether non-impleading the treating Doctor as party could result in dismissal of the original petition or non-joinder of necessary party. Hon’ble Supreme Court considered relevant provisions in the Consumer Protection Act, 1986 and held that the complaint was maintainable and order passed by Hon’ble National Commission was not sustainable. In the process, Hon’ble Supreme Court made following observations, “The patients once they are admitted to such hospitals, it is the responsibility of the said hospital or the medical institutions to satisfy that all possible care was taken and no negligence was involved in attending the patient. The burden cannot be placed on the patient to implead all those treating doctors or the attending staff of the hospital as a party so as to substantiate his claim. Once a patient is admitted in a hospital it is the responsibility of the Hospital to provide the best service and if it is not, then hospital cannot take shelter under the technical ground that the concerned surgeon or the nursing staff, should be rejected on the basis of non-joinder of necessary parties. In fact, once a claim petition is filed and the claimant has successfully discharged the initial burden that the hospital was negligent, as a result of such negligence the patient died, then in that case the burden lies on the hospital and the concerned doctor who treated that patient that there was no negligence involved in the treatment. Since the burden is on the hospital, they can discharge the same by producing that doctor who treated the patient in defence to substantiate their allegation that there was no negligence. In fact it is hospital who engages the treating doctor thereafter it is their responsibility. The burden is greater on the Institution /hospital than that of the claimant. The institution is private body and they are responsible to provide efficient service and if in discharge of their efficient service there are couple of weak links which has caused damage to the patient then it is the hospital which is to justify the same and it is not possible for the claimant to implead all of them as parties.” 43 For the reasons stated above, we hold that the Resident Doctor on duty at the Opposite party no.1-hospital at relevant time was negligent and the Opposite party no.1-hospital is guilty of deficiency in service. The Opposite party no.2-Dr.Ugra received phone call around 6.45a.m. and thereafter, he left for the hospital and examined the patient at 8.00a.m. During the course of argument, Learned representative of Complainant, fairly conceded that the Complainant does not want to press the complaint against the Opposite party no.2. Therefore, the Opposite party no.1-hospital alone is found guilty of deficiency in service and liable to pay compensation to the Complainant. 44 Coming to the question of amount to be awarded as compensation, the patient was 8yrs minor girl and student of local school. The Complainant has claimed compensation in sum of Rs.18,00,000/- but in the preset case, compensation to be awarded would be for mental agony, pain, suffering, resulting from death of a child. Having regard to these facts, we find that amount of Rs.5,00,000/- would be just and adequate compensation. For forgoing reasons, we proceed to pass the following order. ORDER (1) The complaint is partly allowed. (2) The Opposite party no.1 is hereby directed to pay compensation in sum of Rs.5,00,000/- to the Complainant. (3) The Opposite party no.1 shall also pay costs of proceeding in sum of Rs.10,000/- to the Complainant. (4) The complaint against the Opposite party no.2 stands dismissed. (5) The Opposite party no.1 shall comply with this order within eight weeks from the date of the receipt of this order. (6) Certified copies of this order to be furnished both the parties, free of costs, as per rule.
| | [HONABLE MRS. Mrs.DEEPA BIDNURKAR] Member[HONABLE MR. Mr. J. L. Deshpande] PRESIDENT | | 
