COMPLAINT CASE NO. 1 OF 2006
1. Sri Uttam Sarkar,
S/o. Late Molin Sarkar
Resident of Dolgaon,
P.O. Dolgaon, District - Darrang, Assam
………Complainant
-Vs-
1. The Management of Tura Christian Hospital,
P.O. Tura, Pin - 794002
West Garo Hills, Meghalaya
2. Dr. P. Rudra Tariang, Medical Superintendent,
Tura Christian Hospital,
P.O. Tura, Pin - 794002,
West Garo Hills, Meghalaya
3. Dr. D. Gogoi, Gynaecologist,
Tura Christian Hospital,
P.O. Tura, Pin - 794002,
West Garo Hills, Meghalaya
4. Dr. Editha Momin, Child Specialist,
Tura Christian Hospital,
P.O. Tura, Pin - 794002,
West Garo Hills, Meghalaya
…..…….Opposite Parties
For the Complainant : Mr. R.P. Kakoti, Sr. Advocate
Mr. T. Das, Advocate
For the Opposite Parties : Mr. S.K. Goswami
Mr. A. Acharjee, Advocates
Date of hearing : 14.12.2013
Date of judgment : 07.02.2014
JUDGMENT & ORDER (CAV)
Per Mr. Justice P.K. Musahary (Retd.), President
Heard Mr. R.P. Kakoti, learned senior counsel assisted by Mr. T. Das, learned counsel for the Complainant. Also heard Mr. S. K. Goswami along with Mr. A. Acharjee, learned counsel for the Opposite Parties.
2. The Complainant, a businessman by occupation and a resident of Dolgaon in the district of Darrang, Assam married Smt. Chandrani Sarkar who hailed from Tura Garopahar in Meghalaya. She got conceived sometime in the month of November, 2003 and as per her attending physician, she was expected to deliver child in the first week of August, 2004. As at the relevant time the Complainant’s wife was residing at his permanent residence at Dolgaon, necessary medical advice and treatment was given to her by Dr. B.C. Kalita, a specialist in Obstetrics & Gynecology of Mangaldoi. On the advice of the said doctor he got his wife’s pregnancy test/investigation done mostly at Tohbildar Clinical Laboratory and Radhika X-ray and Imaging Centre at Mangaldoi. As per various test reports, his wife was carrying normal pregnancy with single foetus and maintaining healthy physical and mental state.
As desired by the maternal family, the Complainant brought his wife to Tura for better care under her mother. Before shifting his wife from Mangaldoi, the Complainant visited the Tura Christian Hospital (OP Hospital in short), and on his query the said hospital assured him all facilities for the purpose of delivery of the child. On being so assured, the Complainant got his wife admitted in the said hospital on 31.07.2004 in an absolutely normal state.
On 09.08.2004 at about 3 pm, the management of the OP Hospital informed the Complainant that as per their observations, normal delivery was not possible and so they had taken his wife to operation theatre and started the caesarian operation for delivery of the child. Surprised by the intimation about sudden caesarian operation without prior information, the Complainant rushed to the OP Hospital. While he was anxiously waiting in the hospital to know about the progress of the operation, he was informed at about 4pm that the operation was successful and a male baby was extracted but his wife was in an unconscious state due to the effect of anesthesia. The OP Hospital management assured that his wife would soon regain her sense. Despite being still in an unconscious state even about 5(five) hours after the operation, she was shifted to the ward concerned at about 8:30 pm. Her unconscious state continued for the whole night and she was declared dead by the doctor at about 4 am of 10.08.2004.
The hospital management charged an amount of Rs. 11,485/- by furnishing a bill dated 10.08.2004. The Complainant was allowed to take the dead body of his wife only when he paid the said billed amount.
3. The Complainant in his petition has broadly brought the following allegations against the OP Hospital management-
(I) The OP Hospital has no qualified anesthetist and did not contact any outside qualified anesthetist.
(II) During the caesarian operation an overdose of anesthesia was administered on the Complainant’s wife by a child specialist (pediatrician) of the Tura Christian Hospital who was not a qualified anesthetist.
(III) Except providing oxygen, no special care and treatment to save his wife’s life was taken although she did not regain consciousness within the prescribed time. She was not even kept in the ICU, rather shifted to and kept in the general ward whole night till the doctor declared her dead the next morning at 4 am.
(IV) The Complainant lost his wife due to negligence and carelessness of the OP Hospital management in providing medical care, facilities, treatment and attention and also deficiency in service.
4. The claimant has demanded payment of Rs. 45,00,000/- as monetary compensation from the Opposite Parties under various counts as detailed here under: -
(a) Unnatural death : Rs. 20,00,000.00
(b) Deprivation of
Pleasure and
companionship of his
wife for his baby : Rs. 5,00,000.00
(c) Deprivation of
Pleasure and
companionship of his
wife : Rs. 10,00,000.00
(d) Mental torture and
agonies : Rs. 10,00,000.00
Total : Rs. 45,00,000.00
5. The claim has been contested by the Opposite Parties No. 1, 2, 3 and 4 by filing joint written statements wherein they, besides denying all the allegations, stated that the complaint is wholly misconceived, frivolous and vexatious and liable to be dismissed with cost under Section 26 of the Consumer Protection Act,1986 (CP Act in short). The Opposite Parties have also raised the question of maintainability of the complaint petition due to mis-joinder of parties and lack of pecuniary jurisdiction of this Commission which, however, were not pressed by the Opposite Parties at the time of hearing. The names of Opposite Parties No. 5 and 6 have been deleted at the time of admission of this complaint on 23.05.2006 from the array of parties and hence they filed no written statement.
6. The claimant filed evidence on affidavit under Order 18 Rule 4 of the CPC and adduced oral evidence in support of his case. The management of Tura Christian Hospital also filed evidence on affidavit for and on behalf of the Opposite Parties through Dr. P. Rudra Tariang (OP No. 2), who also examined himself as a witness and adduced oral evidence. The parties examined no other witness.
7. We have perused and considered the pleadings and evidence on record and also the submissions of the learned counsel of the parties.
8. In regard to facts, it is submitted on behalf of the Complainant that the Complainant’s wife was admitted in the OP Hospital on 31.07.2004 at 5.30pm on being assured that the management of the hospital would provide all medical facilities, services and due care for safe delivery of the baby in the womb of his wife. Mr. R.P. Kakoti, learned senior counsel for the Complainant, referring to hospital report on the state of physical condition of the deceased from the date of admission (31.07.2004) to the date of caesarian operation on 09.08.2004 (Annexure C to complaint), submitted that the Complainant’s wife was perfectly in normal state of health with normal pulse and BP having no uterian contraction. As per the said report, the Complainant’s wife was having mild labour pain in the morning hours with pulse 80/min, BP 130/100 and clear chest. There was, according to the Complainant, no emergency to undertake caesarian operation and that too without giving any prior information to the patient’s husband or close relatives. Even assuming, as argued by the learned senior counsel, that there was an urgency to undertake caesarian operation, the OP Hospital management committed gross negligence by administering overdose of anesthesia on the Complainant’s wife by one Dr. Editha Momin, a pediatrician from Tura Christian Hospital who was not an expert/specialist in anesthesiology. The OP Hospital management did not call a qualified anesthetist from Tura Civil Hospital or other available sources to ensure appropriate administration/ application of anesthesia before undertaking the operation on the deceased. There was administration of overdose of anesthesia and as a result, after the caesarian operation, the Complainant’s wife remained in an unconscious state. It is further argued that although the operation was completed at 4pm and the patient remained in an unconscious state, she was not shifted to ICU or special ward but lodged in the general ward without taking any special care and treatment to bring the patient to consciousness. The patient, as alleged by the Complainant, was kept totally uncared and neglected the whole night till she was declared dead by the hospital doctor at about 4am on 10.08.2004. The learned senior counsel for the Complainant submitted that the Complainant’s wife died due to administration of overdose of anesthesia by a pediatrician who was not a specialist in anesthesiology, lack of proper medical facilities, care and attention attributing to gross negligence and deficiency in service for which the Opposite Parties are liable to compensate the Complainant in terms of money as detailed in the complaint petition.
9. On the legal issue in regard to negligence and deficiency in service and liability to compensate the loss sustained, Mr. Kakoti placed reliance on the following cases-
(1) Indian Medical Association Vs V.P. Shantha and others; (1995) 6 SCC 651
(2) Achutrao Haribhau Khodwa and others Vs State of Maharashtra and others; (1996) 2 SCC 634
(3) Dr. Laxman Balkrishna Joshi Vs Dr. Trimbak Bapu Godbole and another; AIR 1969 SC 128
(4) A.S. Mittal and another Vs State of U.P. and others; (1989) 3 SCC 223
10. In the first case, namely Indian Medical Association Vs V.P. Shantha (Supra), it has been held that service rendered by hospitals and doctors working in non-governmental hospitals where charges are required to be paid for availing services would come within the purview of the CP Act. In the present case, the OP Hospital is a Christian Religious non-profit making institution to render service to the poor and needy people and it takes moderate professional charges. The evidence on record is that the OP Hospital charged and accepted an amount of Rs. 11,485/- from the Complainant. In that view of the matter, the principle of law laid down in the said case would be applicable to the OP Hospital. In the second case of Achutrao Haribhau Khodwa and others Vs State of Maharashtra and others (Supra), it has been held by the Hon’ble Supreme Court that when the doctors act carelessly and in a manner which is not expected of a medical practitioner, an action in torts would be maintainable. It was a case where a sterilization operation was done on a lady by applying local anesthesia. Some complications arose after the operation necessitating a second operation. She did not survive for long and died within a week. It was a clear case where the doctrine of Res Ipsa Loquitur is clearly applicable because of the fact that the lady died due to negligence of doctors in the civil hospital during operation. It has been held that the claim for compensation cannot be defeated merely because it could not be proved conclusively as to which of the doctors employed by the state in the hospital or other staff acted negligently which caused the death of the lady. It is also held that once death by negligence in the hospital is established, the state would be liable to pay the damages. Here, in the present case, the management of the OP Hospital would be liable for the negligence committed by its doctors. In the third case of Dr. Laxman Balkrishna Joshi Vs Dr. Trimbak Bapu Godbole and another (Supra), the doctor concerned, administered only one morphine injection to the patient although he was directed by a senior doctor to administer two morphine injections. The doctor concerned forgot to give the other morphine injection. The patient (boy) became unconscious and ultimately died. In that case it has been held that the doctor concerned was guilty of negligence and for his wrongful acts towards the patient he was liable for damages. In the fourth case of A.S. Mittal and another Vs State of U.P. and others (Supra), the Lions Club arranged and conducted, as a part of its social service programme, an eye camp with intention to provide facilities of expert ophthalmic surgical services to the residents of a town. The Lions Club utilized the services of several doctors, medical and paramedical staff and operated upon 108 patients but unfortunately the operated eyes of the patients were irreversibly damaged owing to a post-operative interaction of intra-ocular cavities of the operated eyes. Inspite of treatment given to them, the operated eyes of the patients got damaged completely. It was a terrible medical mishap which occurred due to a common contaminating source. The government initiated prosecution against the concerned doctors and the Hon’ble Supreme Court directed the government to issue necessary guidelines for conducting eye camps. The government was also directed to incorporate recommendations of the Medical Council of India in its new guidelines for conducting eye camps.
11. Mr. Goswami, learned counsel for the Opposite Parties, referring to the medical report, on the basis of which the claimant’s counsel claimed that the patient was admitted in a normal state of health till she was operated upon, contended that although the patient was admitted in a normal state, some complicacy arose on 09.08.2004 with high BP and mild UT contraction etc due to which a necessity arose for performing caesarian operation with due information and consent of the Complainant as husband of the patient. The allegation of not informing and taking consent of the Complainant as alleged in the complaint petition are false and baseless. The allegation of not providing facilities after the operation to regain the consciousness and save the life of the patient are also denied as false and baseless. The OP Hospital management was not negligent in providing medical and other necessary facilities to the patient and there was no deficiency in service in any manner. As regards the administration of anesthesia by a pediatrician of Tura Christian Hospital, it has been submitted by Mr. Goswami that there was nothing wrong in obtaining the service of the said doctor and administering anesthesia to the patient inasmuch as the said doctor pediatrician had experience in the field and she had been administering anesthesia since the year 2000 in over 2210 cases and she was highly competent to do the job. There is no record or evidence that the said doctor is incompetent for the job. In this regard, the learned counsel for the Opposite Parties relied on the oral evidence of Dr. P. Rudra Tariang (DW1) who deposed that “under the Rural Health Mission which was launched by the central government, due to shortage of specialists in Gynecologist and Anesthesia, the MBBS doctors who have been sent for training, can tackle the emergency of obstetrics cases and administer anesthesia”. As per the evidence of Dr. Tariang, the pediatrician, Dr. Mrs. Editha Momin, is a trained child specialist and she was also trained in administering anesthesia. Further it is contended that there was no case of administration of overdose of anesthesia by the said child specialist/ pediatrician and the patient did not die due to administration of overdose of anesthesia. The cause of death, as per the medical report (Annexure C), is due to hypertension crisis.
12. It is also argued on behalf of the Opposite Parties that had there been any grievance of deficiency of service or other complaints like administration of overdose of anesthesia etc, the Complainant should have immediately questioned and asked for post-mortem examination of the deceased but the Complainant remained silent for more than two years without making any complaint with the OP Hospital management and filed the present complaint petition before this Commission directly at the belated stage due to mis-advice for extracting undue inflated financial benefit which is unjustified and illegal. Such misconceived complaint petition, according to Mr. Goswami, learned counsel for the Opposite Parties, is liable to be dismissed with cost.
13. With regard to the legal position for awarding compensation by the Consumer Forum, it has been submitted by the learned counsel for the Opposite Parties that the Complainant must prove the gross negligent action amounting to recklessness and carelessness on the part of the doctor or the hospital authorities/management due to which the patient suffered injury or loss of life. The Complainant must prove non-exercise of reasonable care and professional skill required for treatment /operation of a patient by a doctor. According to Mr. Goswami, the Complainant has not been able to prove gross negligence and deficiency of service of the Opposite Parties and its medical staff to fasten liability and compensate the death of his wife. The present case, as contended by Mr. Goswami, is not covered by the doctrine of Res Ipsa Loquitur inasmuch as the doctors of the OP Hospital committed no gross medical negligence resulting in death of the patient. At best, as argued by him, there might be error of judgment only in administering the anesthesia causing the death of the patient which would not necessarily attract liability on the hospital management and its medical staff merely because the Complainant’s wife could not regain her consciousness even after taking necessary steps and medical care. In the course of argument, he has relied upon the following authorities-
(1) Martin F. D’ Souza Vs Mohd. Ishfaq; (2009) 3 SCC 1
(2) C.P. Sreekumar (Dr.), MS (ortho) Vs S. Ramanujam; (2009) 7 SCC 130
(3) Central Bureau of Investigation, Hyderabad Vs K. Narayana Rao; (2012) 9 SCC 512
(4) Shri Ramdeo Prasad Singh Vs Dr. Ramesh Ch. Sinha; 2007 (1) CPR 110 (NC)
(5) N. Krishna Reddy Vs Christian Medical College & Hospital; 2007 (2) CPR 260 (NC)
(6) Kusum Sharma and others Vs Batra Hospital & Medical Research Centre and others; (2010) 3 SCC 480
(7) B. Anthony Raj and another Vs St. Thomas Hospital and another; 2006 (1) CPR 191 (NC)
14. Further it has been argued by Mr. Goswami that there is nothing wrong in administering anesthesia on the patient by a general medical practitioner (Doctor), especially in an emergency case, to save the life of the patient in so far as such a measure is permissible in the medical ethics/code and also as per the guidelines of the Medical Council of India. According to him, in the present case, there was some complicacy in the condition of the Complainant’s wife for which caesarian operation was necessitated by utilising the services of a qualified medical practitioner from the OP Hospital to administer anesthesia. He has, in this regard, referred to the oral evidence of Dr. P. Rudra Tariang (DW1), who had categorically stated that in such cases administration of anesthesia by a general medical practitioner is permissible, more so when the doctor concerned from Tura Christian Hospital was trained and she had, in the past, administered anesthesia in over 2210 cases. The medical record, as argued by Mr. Goswami, reveals that due medical care and measures were taken both during the pre and post operation periods and the Complainant has not brought or attempted to prove a case of gross negligence of the Opposite Parties resulting in the death of the patient. Reference has also been made to medico-legal opinion of one M.C. Gupta, MD (Medicine), LLM, Fellow of National Clinical Forensic Medicine, Ex-Professor and Dean and Advocate, collected through internet. Question put to him was- “Can an MBBS doctor administer spinal anesthesia?”
The answer given by him is-
“There is nothing in law that prevents an MBBS doctor from giving spinal anesthesia. However, he should do so in circumstances that justifies it. If he adopts anesthesia as his main occupation and holds himself out as an anesthetist, this would be in violation of the Code of Ethics Regulation 2002. The circumstances that justify may include, for example, the following-
When it is an emergency and the act needs to be performed to save the life of the patient.
When it is done by an employee as part of duties assigned to him by the hospital employer.
When the doctor performs the act as an assistant or under supervision.
When the doctor has knowledge and experience necessary for performing the act independently and no qualified anesthetist is available or when the patient does not want to engage the services of a qualified anesthetist and has given an informed consent”.
Here it is to be noticed that Dr. Editha Momin, Pediatrician, who administered the anesthesia to the patient has not been examined by the Opposite Parties to testify that she was trained and possessed the knowledge and experience necessary for administering anesthesia independently and that she had been administering anesthesia in a number of cases in the past in the O.P hospital. It has examined none of its doctors and medical staff to prove the said claim. Nor has it brought on record that Dr. E. Momin participated in the training conducted under the Rural Health Mission Programme and that she was trained in administering anesthesia. As the said facts are not proved or shown to have a bearing on record, we are disinclined to accept the submission of the Opposite Parties that the above medico-legal opinion has any applicability to the present case.
15. We would now advert to facts and laws settled by the Hon’ble Supreme Court and the National Commission in the cases cited and relied upon by the Opposite Parties.
16. In the case of Martin D’ Souza (Supra), respondent was suffering from chronic renal failure and was referred to Nanavati Hospital, Mumbai for the purpose of kidney transplant. In the said hospital the respondent was undergoing haemodialysis twice a week. He was suffering from high fever but he refused to get admitted to the hospital despite the advice of the appellant and hence the appellant prescribed antibiotics for him. Later on, the respondent agreed to get admitted to the hospital due to his serious condition. In the meantime he was also suffering from severe urinary tract infection which could only be treated by Amikacin or Methenamine Mandelate. Since Methenamine Mandelate cannot be used in patients suffering from renal failure, Amikacin injection was administered and consequent upon the treatment, the temperature of the respondent rapidly subsided. Then the respondent himself insisted on immediate kidney transplant even though the appellant advised him that in view of his blood and urine infection, no transplant should take place for six weeks. The respondent then, despite the appellant’s advice, got himself discharged from Nanavati Hospital. At the time of discharge, certain drugs were specified to be taken under the supervision of the appellant. When he visited the dialysis unit within a few days, the respondent complained to the appellant that he had slight tinnitus (ringing in the ear). The appellant asked the respondent to stop taking Amikacin and Augmentin and scored out the treatment on the discharge card. However, despite express instructions from the appellant, the respondent continued to take Amikacin for about a week and thereafter the respondent was not under the treatment of the appellant. Thereafter, in the same year, the respondent visited Nanavati Hospital thrice and he, on his own accord, got himself admitted to Prince Aly Khan Hospital where he was also treated with antibiotics. During that period he did not complain of deafness but he was operated upon for transplant and after the operation he filed a complaint before the National Commission claiming compensation of Rs. 12 lakhs for loss of hearing due to alleged negligence of the appellant who had allegedly prescribed overdose of Amikacin injections. The Hon’ble Supreme Court held, amongst others, that in an extremely serious situation, the doctor giving a patient a high dose of antibiotic drug (Amikacin) in his desperate attempt to save the patient’s life, although resulted in impairment of hearing, cannot be said to be negligent. In such cases, simply because a patient has not favourably responded to a treatment given by a doctor or a surgery has failed, the doctor cannot be held straightway liable for medical negligence by applying the doctrine of Res Ipsa Loquitur. What is to be noted is that in the said case the patient was not taking medical treatment as per the advice of the doctors and the doctors concerned were giving treatment strictly within the medical ethics and there was no negligence on their part in the matter of treatment and conducting the operation. The facts of the case at hand are quite different and it is evident that the Complainant’s wife was treated and operated in the OP Hospital as advised. However, the OP Hospital admittedly had no qualified anesthetist in its establishment and called for the service of a pediatrician, who is not a qualified/specialist anesthetist from the Tura Christian Hospital. We are not persuaded to accept the submission of the learned counsel of the Opposite Parties that the principle of law as settled in the Martin D’ Souza case (Supra) is applicable to the present case.
17. The facts in the case of C.P. Sreekumar (Supra) are that there was a single hairline fracture on the leg of the respondent patient which developed into more serious type of fracture requiring operation. The respondent patient alleged that the doctor lacked basic skills in performing the operation but on facts it was found that the appellant doctor had 15 years of experience in the field of orthopaedics on the date of operation. The respondent patient/Complainant could not adduce any evidence as to the doctor’s lack of expertise in performing the operation, nor could he prove a case of negligence on the part of the doctor concerned and hence the Hon’ble Supreme Court held that bald statement alone cannot be accepted. In the course of argument, the learned counsel for the Opposite Parties also drew the attention of the Commission to the observations made by the Hon’ble Supreme Court in Sub Para 2 of Para 53 of Jacob Mathew Vs State of Punjab; (2005) 6 SCC 1 which is quoted here under-
”53.(2) Negligence in the context of the medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional in particular a doctor, additional consideration apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, or error of judgment or an accident, is not proof of negligence on the part of the medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed.”
We are not persuaded to accept the submission of the learned counsel for the opposite parities that the law laid down in the aforesaid cases is applicable to the present case on the face of the facts which are not similar to the afore cited cases where the negligence on the part of the medical professionals concerned could not be proved nor even became apparent to fasten them with liability of negligence and damage.
18. K. Narayana Rao (Supra) is about rendering of legal opinion by a panel advocate of a bank. There was an allegation that the said panel advocate submitted fake legal opinion to the bank in respect of housing loan. It was held by the Hon’ble Supreme Court that although a lawyer owes an unremitting loyalty to the client’s interests, he cannot be fastened with criminal conspiracy to defraud the bank unless proved that the lawyer concerned aided or abetted the other conspirators. It is further held that a lawyer cannot be held liable merely because his legal opinion is not acceptable and at the most, he may be liable for gross negligence or professional misconduct if established by evidence. Mr. Goswami, learned counsel for the Opposite Parties rested his argument on the observations made in the Para 27 which is reproduced hereunder-
“27. In the banking sector in particular, rendering of legal opinion for granting of loans has become an important component of an advocate’s work. In the law of negligence, professionals such as lawyers, doctors, architects and others are included in the category of persons professing some technical skills. A lawyer does not tell his client that he shall win the case in all circumstances. Likewise, a physician would not assure the patient of full recovery in every case. A surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial, much less to the extent of 100% for the person operated on. The only assurance which such a professional can give or can be given by implication is that he is possessed of the requisite skill in that branch of profession which he is practicing and while undertaking the performance of the task entrusted to him, he would be exercising his skill with reasonable competence. This is what the person approaching a professional can expect. Judged by this standard, a professional may be held liable for negligence on one of the two findings viz. either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess”.
We are of the considered view that reliance of the learned counsel on the above observation is misplaced inasmuch as in the present case we are not concerned with medical opinion or advice of a medical professional but non-procuring of service of a qualified anesthetist for administration of appropriate dose of anesthesia before operating the patient which apparently indicates negligence and professional misconduct on the part of the OP Hospital. We are, therefore, not persuaded by the submission made by the learned counsel of the Opposite Parties on this point.
19. In the case of Ramdeo Prasad Singh (Supra), a complaint was made against the doctor alleging medical negligence and demanding compensation. In the said case, a child was suffering from Syndactyl i.e., fingers of both hands and toes of both feet were fused and an OP surgeon through a four-stage operation separated fingers of left foot but could not separate two fingers of the right foot. The District Forum directed the OP doctor to pay Rs. 50,000/- as compensation to the Complainant. The appeal filed against the said order was allowed by the State Commission. A revision was filed before the Hon’ble National Commission. Its finding was that no expert evidence was filed by the Complainant/revision petitioner in support of medical/surgical negligence nor even an extract of any medical text was submitted to support allegations of medical negligence. Rather it was established that the treating surgeon was not only having average skills but he had extra-ordinary skills and created a bright future to a deformed child. It was observed that instead of appreciating the services of a gifted surgeon the Complainants have filed a baseless complaint only to collect money and harass the doctor. As against the above cited case, the present case is one where the efficiency of the surgeon/doctor who performed the caesarian operation has not been questioned. The Complainant in the present case has mainly questioned the administration of anesthesia on the patient by a doctor who is not a specialist in anesthesiology attributing to medical negligence on the part of the OP Hospital management. In our considered view, the principle of law as laid down in the above cited case is not applicable to the present case.
20. In the case of N. Krishna Reddy (Supra), the Hon’ble National Commission relying upon the case decided in Mrs. Kiranbala Rout Vs Christian Medical College & Hospital and others; 2003 (1) CPR 238 (NC), held that medical negligence must be established and not presumed. In the absence of expert evidence on behalf of the Complainant, no negligence or deficiency in service could be found against affidavits filed by the doctors. That was a case where the patient was treated earlier in the Manipal Hospital at Bangalore where he was diagnosed to have Koch’s Spine and underwent surgery. As his pain did not subside, the Complainant went to Christian Medical College & Hospital at Vellore for further treatment wherein the professor and Head of Department of Orthopaedic and Accident Surgery Unit-I examined him and conducted the relevant test like biopsy etc. The Complainant was operated and discharged from hospital. It was complained that despite following the course of drugs prescribed by the doctor there was no improvement in his health and the pain aggravated to unbearable level. When he approached the hospital, he was directed to come back after six weeks without taking any steps to reduce the agony. The Complainant was desperate and approached the Apollo Hospital at Madras where he was admitted and operated upon the left ribs and sternum and discharged after being mostly cured of his chronic malady. The Complainant submitted that though he was able to move about, he was unable to do professional work due to recurring pain and exhaustion resulting in his retiring from legal profession. The Complainant lodged the complaint claiming damages from CMC Vellore and Dr. Sunder Raj as well as Manipal Hospital, Bangalore. The Hon’ble National Commission dismissed the complaint holding that there was no expert evidence establishing that the alleged procedure followed by the hospitals/doctors concerned was not medically sound. That apart, it was found that the Complainant cannot blow hot and cold. The allegation must be proved not only by filing affidavits but also by adducing expert evidence to prove the case of negligence and deficiency in service. The principle of law as laid in the above cited case is no doubt acceptable in general but having regard to facts and circumstances of a given case the same may not be applicable to all the cases. Having considered that the facts and circumstances involved in the present case are quite different from the ones involved in the above cited case, we are not inclined to accept the submission of the Opposite Parties and apply the said law to the present case.
21. The case of Kusum Sharma (Supra) is about concept of negligence in civil law and criminal law. It is held that “Simple lack of care attracts civil liability whereas very high degree of negligence” is required in criminal cases. In matters alleging medical negligence a duty is cast on the courts to protect the medical practitioners acting in good faith against unnecessary harassment or humiliation so that the medical professionals can perform their professional duties without fear and apprehension. That was a case of criminal negligence. The Complainant in the said case failed to prove negligence on the part of the doctor concerned inasmuch as the expert opinion was in favour of the procedure adopted by the Medical Council of India at the time of surgery and the doctor concerned applied the standard of an ordinary skilled man exercising and professing to have the special skill. The point involved in the present case is not about application of standard or special skill in treating a patient but administration of overdose of anesthesia which, as alleged by the Complainant, led to the death of his wife. In view of the above, we do not accept the submission that the decision in the aforesaid case would be applicable to the present case.
22. The learned counsel for the Opposite Parties has also cited the case of Bhanwar Kanwar Vs R.K. Gupta; (2013) 4 SCC 252. It was a case of unauthorized medical treatment (quackery) by an Ayurvedic doctor who administered allopathic medicine and against whom allegations of unfair trade practice, negligence etc were brought. He also cited the case of Marghesh K. Parekh Vs Dr. Mayur H. Mehta; (2011) 1 SCC 31 which deals with powers to be exercised by the Consumer Fora and conduct of the Opposite Parties in consumer proceedings. The Opposite Parties also relied on the case of Mukesh Kumari Vs M. Lal Oswal Cancer Treatment and Research Foundation; (2004) 13 SCC 69. The said case is regarding survival of right to sue by legal heirs demanding compensation in case of death of a victim due to alleged medical negligence. The Opposite Parties cited the case of Savita Garg Vs Director, National Heart Institute; (2004) 8 SCC 56 which deals with joinder of parties before Consumer Forum. The cited case of V.N. Shrikhande (Dr.) Vs Anita Sena Fernandes; (2011) 1 SCC 53 deals with limitation for filing complaint before the Consumer Forum and also cause of action in the matter of medical negligence. The Opposite Parties also relied on the following cases-
(1) Javed Alam Vs Inderjit Kaur and another; (2005) 11 SCC 550 which deals with liability of insurance company to indemnify the insured in the case of medical negligence.
(2) Tara Chand Jain Vs Sir Ganga Ram Hospital; (2005) 13 SCC 648 in which the complaint was dismissed due to failure of the Complainant to establish the allegation of negligence and that the Complainant suffered infirmity due to alleged medical negligence.
(3) Mohd. Suleman Ansari Vs Shankar Bhandari; (2005) 12 SCC 430 in which the Complainant brought an allegation that the doctor concerned was not authorized to practice medicine and due to his treatment, respondent’s fractured arm was damaged permanently.
(4) Vinitha Ashok Vs Lakshmi Hospital; (2001) 8 SCC 731 in which the appellant alleged medical negligence against the hospital where a complicated operation known as Hysterectomy (removal of uterus) was performed causing excessive bleeding. It was alleged that the method applied by the doctor was wrong and the doctor was liable for the negligence but it was held that the procedure adopted by the doctor concerned was commonly in practice in the area and it could not be said that the doctor was negligent.
(5) Jaswinder Singh Vs Santokh Nursing Home; (2012) 12 SCC 550 which deals with quantum of compensation in the matter of death of a housewife/homemaker due to alleged medical negligence.
(6) Senthil Scan Centre Vs Shanthi Sridharan; (2010) 15 SCC 193 on medical negligence in the diagnosis of disease.
(7) Kunal Saha Vs Sukumar Mukherjee; (2011) 13 SCC 98 wherein seeking of opinion of foreign expert for determining compensation was permitted.
(8) Moolchand K R Hospital and Arthritis Research Centre Vs Bhajanlal Gupta; (2010) 15 SCC 436 in which Rs. 2 lakhs as compensation was awarded against the medical practitioner/services.
(9) Post Graduate Institute of Medical Education & Research Vs Jaspal Singh; (2009) 7 SCC 330 on medical negligence vis-à-vis casual connection between breach of duty and injury sustained.
(10) Ramesh Ch. Agrawal Vs Regency Hospital Ltd; (2009) 9 SCC 709 in which the case of medical negligence and denial of opportunity of adducing evidence and opinion of expert was discussed.
(11) INS. Malhotra Vs Dr. A. Kriplani; (2009) 4 SCC 705 on medical negligence and evidence to be adduced.
(12) Rais Ahmad Vs Mohd. Siddique; (2010) 15 SCC 416 on setting aside the exparte decree in a suit for damages.
(13) Tukaram Vs State of Maharashtra; (2011) 14 SCC 250 on culpable homicide and murder.
(14) State of Punjab Vs Shiv Ram; (2005) 7 SCC 1 on criminal and civil negligence.
(15) Antram Vs State of Maharashtra; (2007) 13 SCC 356 on cause of death in criminal case under Section 302 IPC.
(16) Mahadev Prasad Kaushik Vs State of UP; (2008) 14 SCC 479 on causing death by negligence in criminal case under Section 304-A IPC.
(17) B. Jagdish Vs State of AP; (2009) 1S CC 681 on death by medical negligence and wrong diagnosis of child patient.
(18) Suresh Gupta (Dr.) Vs State of NCT of Delhi; (2004) 6 SCC 422 on degree of medical negligence necessary to fasten the doctor with liability for death due to medical negligence.
(19) Surendra Chauhan Vs State of MP; (2000) 4 SCC 110 on common intention to cause miscarriage which resulted in death.
(20) Kishore Lal Vs Chairman, ESI Corporation; (2007) 4 SCC 579 on medical negligence on the part of the ESI doctors, hospitals or dispensary.
(21) Union of India Vs A. Durairaj; (2010) 14 SCC 389 on denial of promotion.
(22) State of Haryana Vs Raj Rani; (2005) 7 SCC 22 on medical negligence and failure in sterilization operation.
(23) State of Haryana Vs Santra; (2000) 5 SCC 182 on medical negligence in respect of poor woman having number of children.
23. Among the cases as cited by the Opposite Parties, we have found that the facts and circumstances of B. Anthony Raj (Supra) are akin to the facts and circumstances of the instant case. In the cited case of B. Anthony Raj (Supra), the deceased wife of the Complainant was suffering from stomach pain for which she was taken to hospital who after diagnosis, stated to be a case of acute appendicitis. A surgery was directed to be done and it was alleged that proper doses of anesthesia was not administered and that is why during the surgery she woke up and then she was given an overdose of anesthesia without testing her suitability, as a result of which she had a respiratory arrest for four minutes during the operation. Immediately after this, she was removed to another hospital where she finally died within five days. A case of medical negligence was filed. The State Commission dismissed the complaint holding that for alleged medical negligence no cogent evidence was adduced. The appeal filed against the said order was also dismissed by the National Commission. One of the considerations for not accepting the case of medical negligence was that the Complainant in his complaint did not specifically plead that the anesthesia was administered by some unqualified anesthetist. In the written version the Opposite Parties had taken specific plea that “With the able administrator of qualified anesthetist, the anesthesia was administered in the spinal cord”. It was however not reported by the Complainant at any stage in any form. In view of the above position, the National Commission held that nothing was brought on record that the doctor was not competent or did not possess the skill resulting in unfortunate end of life of the Complainant’s wife or did not do what ought to have been done or did not what should not have been done. The learned counsel for the Opposite Parties herein heavily relied upon the above cited case. Before commenting upon the correctness or otherwise of the Opposite Parties’ stand, we would like to underline the distinguishing features in the facts and circumstances of the case at hand. The admitted position in the present case, as found from the written statement and evidence on affidavit are that the OP Hospital has no anesthetist. The anesthesia was administered on the deceased by Dr. Editha Momin, a pediatrician who has been giving anesthesia since the year 2000. The OP Hospital called a senior anesthetist from Tura Civil Hospital after the operation, only when the patient was lying unconscious and could not regain sense. The service of a qualified anesthetist was not availed by the OP Hospital although a senior anesthetist was available in the Tura Civil Hospital. It is not a case that the OP Hospital is situated at a place where no anesthetist was available and the operation in question had to be performed by administering anesthesia by a general medical practitioner. The conduct of the OP Hospital management does not appear to us bona fide, rather smacks of negligent attitude which may be construed as professional negligence, to be precise, as medical negligence. There is no explanation why the OP Hospital management did not call a qualified anesthetist from the Tura Civil Hospital or other hospital available in the town. The only explanation it sought to offer is that the condition of the patient was such that there was no time to wait for a qualified anesthetist and it performed the caesarean operation by administering anesthesia by a pediatrician to save the life of the baby in the womb. Further, a plea was taken by the Opposite Parties that anesthesia could be administered by a general medical practitioner in an emergent situation and it was not against medical ethics.
24. In order to justify that there was an emergency for performing the caesarian operation without waiting for the services and assistance of a qualified anesthetist, the learned counsel for the Opposite Parties has placed the medical report (Annexure C to the Complaint). We are no expert to comment upon the health condition of the patient. It would not be proper on our part to give a finding, on the basis of the said medical report, about the serious or normal condition of the patient necessitating a normal or emergent caesarian operation. What is striking the judicial conscience in the present case is that the OP Hospital management, although a qualified anesthetist was available in the Tura Civil Hospital, did not call for his administering anesthesia to the patient. The Opposite Parties, except Dr. P. Rudra Tariang, medical superintendent of the OP Hospital, examined no witness to bring home that the Complainant’s wife developed complicacy on 09.08.2004 and there was an emergency to perform caesarian operation and that there was no time at all to call a qualified anesthetist even from the civil hospital. It was incumbent upon the Opposite Parties to examine the senior anesthetist from the Tura Civil Hospital as a witness, whom they called after the operation to attend the patient, to prove that there was no administration of overdose of anesthesia or there was nothing wrong in the administration of anesthesia by the pediatrician Dr. Editha Momin. The Opposite Parties did not even examine any expert to prove their case that due medical care and attention was given to the patient before and after the caesarian operation. Although the medical superintendent of the OP Hospital deposed as a witness that all possible medical service and care were taken to regain the consciousness of the patient in the hospital before and after the operation, we do not find any supporting evidence or material to accept the evidence of the medical superintendent Mr. P. Rudra Tariang. We are conscious of the law that the standard of proof in the consumer case is not the same as required in the criminal cases but it must at least be shown that the pleadings or stand taken by the parties are tangible and acceptable. The pleadings and stands taken by the Opposite Parties are found to be untenable and absurd inasmuch as, as per the statements made in the written statements and evidence on record, they have resorted to quite unusual recourse not conducive to medical ethics as they have made no attempt to call a qualified anesthetist available in the civil hospital rather called a pediatrician as because they have purportedly been utilizing her services in over 2000 cases on earlier occasions and there had been no case of mishap thereby. We have found no evidence or material on record that the senior anesthetist or any qualified anesthetist in the Tura Civil Hospital was not available at the relevant point of time. In our considered view the Opposite Parties are blamable for their unethical conduct and they are liable for medical negligence. The Apex Court in Spring Meadows Hospital Vs Harjol Ahluwalia; (1998) 4 SCC 39 held that gross medical mistake would always result in a finding of negligence. It was also held that use of wrong drug or wrong gas during the course of anesthesia would frequently lead to imposition of liability and in some situations even the principle of Res Ipsa Loquitur could be applied. The conduct of the OP Hospital management in not calling an available qualified anesthetist from the civil hospital cannot be termed as bona fide mistake and in the circumstances as discussed earlier, cannot be said to be excusable. It was a serious omission tantamount to negligence that cannot be pardoned. The unethical action and conduct of the OP Hospital management is self-explanatory for appreciating how the mishap, namely death of the Complainant’s wife, could have occurred. Considered from that point of view the present is a case where the principle of Res Ipsa Loquitur would be unmistakably applicable. The position of law has been explained very clearly in Para 9 of the aforesaid case, the relevant portion of which is reproduced here under-
“9……..Very often in a claim for compensation arising out of medical negligence a plea is taken that it is a case of bona fide mistake which under certain circumstances may be excusable, but a mistake which would tantamount to negligence cannot be pardoned. In the former case a court can accept that ordinary human fallibility precludes the liability while in the latter the conduct of the defendant is considered to have gone beyond the bounds of what is expected of the reasonably (sic) skill of a competent doctor. In the case of Whitehouse v. Jordan an obstetrician had pulled too hard in a trial of forceps delivery and had thereby caused the plaintiff’s head to become wedged with consequent asphyxia and brain damage. The trial Judge had held the action of the defendant to be negligent but this judgment had been reversed by Lord Denning, in the Court of Appeal, emphasizing that an error of judgment would not tantamount to negligence. When the said matter came before the House of Lords, the views of Lord Denning on the error of judgment was rejected and it was held that an error of judgment could be negligence if it is an error which would not have been made by a reasonably competent professional man acting with ordinary care.”
25. Another point that does not escape our attention is that the general direction given in Para 106 in D’ Souza’s case (Supra) have been held to be a non-binding precedent and those directions must be confined to the particular facts of that case only. This has been so held in V. Kishan Rao Vs Nikhil Super Specialist Hospital [2010 (5) SCC 513]. In the said case it has been held that the principle of Res Ipsa Loquitur applies where negligence is evident and in such a case, Complainant is not required to prove anything as Res proves itself. In such a case it is for the respondent to prove that he has taken care and done his duty. In view of the above law we hold that the Complainant in the present case is not required to prove the allegation of medical negligence by specifically adducing evidence inasmuch as the Opposite Parties have shown their negligence and misconduct in not calling the available qualified anesthetist from the Tura Civil Hospital and in his place calling upon a pediatrician who was not a qualified anesthetist. It is one thing to say that an operation has been performed successfully after administering anesthesia by an unqualified anesthetist and it is quite another thing that anesthesia could be administered by a pediatrician as no mishap took place in earlier cases. By taking the assistance of a pediatrician for administering anesthesia, the OP Hospital management took a great risk without the backing of medical ethics and justified reasons.
26. What follows from the facts and circumstances of the case and the discussions made on the basis of cases relied upon by the parties, is that the Opposite Parties are clearly fastened with medical negligence requiring them to pay adequate compensation to the Complainant. The question is whether demand for payment of Rs. 45 lakhs could be said to be inflated or reasonable. There is no standard set by any statute or judicial pronouncement for determining compensation or damages in the case of death due to medical negligence. Such standard of compensation is available only in the Motor Vehicle Act 1988 by way of application of multiplier provided in the Schedule II. The learned counsel for the parties have not been able to show any decision of the National Commission or Apex Court that the formula or standard of compensation prescribed under the MV Act is applicable to the claims made against medical negligence. Determination of compensation is, otherwise, a difficult task and it is more a difficult task where no standard or formula is laid down in the statute or in judicial decisions by higher fora or courts. We have, however, noticed in the Nizam’s Institute of Medical Science’s case (Supra) wherein it has been mandated that the court must strike a balance between the inflated and unreasonable demands of a victim and the equally untenable claim of the Opposite Parties saying that nothing is payable. In the said case it has been held that “Sympathy for the victim does not and should not come, in the way of making a correct assessment, but if a case is made out, the court must not be chary of awarding of adequate compensation. The adequate compensation that we speak of must to some extent is a rule of thumb measure, and as a balance has to be struck, it would be difficult to satisfy all the parties concerned”. From the pleadings we have noted that the Complainant and the victim was a newly married couple and the Complainant lost his wife within hardly over a year. The deceased was 26 years old. She was at the prime of her life at the time of her death and she would have lived, as per the average life expectancy, at least another 40 years till she would have attained the age of 66 years or at least 60 years but for the mishap that has taken her life due to medical negligence of the Opposite Parties. The Complainant, as husband of the deceased has been deprived of love and pleasure of his wife for about 40 years. Compensation for deprivation of love and pleasure of the other partner of the couple (here legal wife) is permissible in law and at least there are instances of awarding such compensation under the MV Act. As the life of the deceased has been cut off untimely depriving the love and pleasure, upon deep consideration and bearing in mind various decisions of the Hon’ble Supreme Court and National Commission with regard to the quantum of compensation in cases of death arising from medical negligence, we deem it fit and proper to award Rs. 3.00 lakhs on this count to the Complainant. The newborn child, with the death of the deceased, has also been deprived of love, care, protection and pleasure of his mother. Further the motherless newborn child has caused tremendous hard times and difficulties to the Complainant. It is needless to say that the Complainant and his family members had to devote extra time and take special care for the child. Considering such circumstances, we also deem it fit and proper to award a compensation of Rs. 4.00 lakhs on this count. Apart from the above the Complainant, due to sudden death of his wife, suffered mental trauma and agonies for a long period. In motor accident cases, the next of kin is awarded compensation on account of mental torture and agonies. The Complainant, in our considered view is entitled to compensation under the head mental torture and agonies which we quantify at Rs. 1.00 lakhs. Thus the total compensation amount comes to Rs. 8,00,000/- to which shall further be added interest thereon @ 6% p.a. from the date of filing of the instant complaint upto the date of payment. The claim for compensation of Rs. 20 lakhs under the head “Unnatural death of the wife” in our considered view is unreasonable and unsustainable in law. We pass no order for compensation on account of unnatural death of the wife inasmuch as the compensation ordered under the heads (a) deprivation of pleasure and companionship of wife, (b) deprivation of pleasure and companionship of wife for his baby and (c) mental torture and agonies would be adequate and justified. The Opposite Party No. 1, the management of Tura Christian Hospital is directed to pay the compensation amount of Rs. 8,00,000/- together with interest @ 6% p.a. thereon from 12.01.2006 till the date of payment, to the Complainant within a period of 3 (three) months from today, failing which the total amount including interest shall carry further interest @ 9% p.a.
27. With the aforesaid directions, this complaint petition stands allowed and disposed of.
Per Shri Ramesh Bawri, Senior Member
28. While expressing my complete agreement with the Hon’ble President, even at the cost of reiteration of some points, I would add that some of the strange, callous, insensitive and, in the facts of the case untenable, defences taken by the O.P. Hospital in their written statement which are reproduced below also pain us deeply and leave a lot to be desired on the part of the hospital which avers that it is a ‘a Christian, religious, non-profit making institution (which) helps poor and needy people whoever comes for treatment there.’ :
a) That the Complainant filed the complaint with ulterior motive and more so to earn money from the Opposite Parties.
b) That the entire complaint and statements made therein are all based on falsehood and fabricated in nature and as such the complaint is liable to be dismissed with costs.
c) That there is no cause of action in the present complaint and this Hon’ble Forum has no jurisdiction to entertain the present false complaint.
d) That this Hon’ble Commission has no jurisdiction both territorial and pecuniary in trying the instant complaint.
e) That the proceeding initiated by the Complainant is non-est, null and void and without jurisdiction.
f) That the present complaint is baseless and flagrant abuse of process of law to harass the answering Opposite Parties.
g) The present complaint is frivolous and vexatious in terms of Sec. 26 of the Consumer Protection Act, 1986.
29. Medical negligence on the part of the Opposite Parties is all the more glaring because it is not their case that an emergency operation had to be done on the deceased and that they had no time to call for the services of a qualified Anaesthetist from the Tura Civil Hospital because they themselves did not have one. Para 17(a) of their written statement clearly states that “As labour was seen to be not progressing and the fetus was going into fetal distress it was decided that a caesarean operation had to be done in order to save the baby which was now becoming weak in the mother’s womb”. It must be remembered that the deceased was admitted into the OP Hospital 10 (ten) days before the operation and, if the OP Hospital was monitoring the pregnancy as required, such fetal distress could not have developed in an instant and there was adequate time and opportunity to call for the services of a qualified anaesthetist, which they ought to have done in the absence of one in their own hospital or even advised the family members to shift the patient to another hospital in Tura.
30. In the very recent case of Jai Prakash Mehta Vrs. Dr. B.N. Rai and Anr [2014 (1) CPR 13 NC] the Hon’ble National Commission, relying on the judgments of the Hon’ble Supreme Court summed up the three essential issues pertinent to what constitutes medical negligence, one of which is ‘whether the doctor in question possessed the medical skills expected of an ordinary skilled practitioner in the field at that point of time’. Applying the said principle it found that medical negligence was proved because the doctor in question being an ENT specialist did not prima facie possess the medical skills to treat a serious burn injury and yet continued to do so. In the instant case too, the O.P. Hospital engaged Dr. E. Momin who is a child specialist and did not possess the medical skills to administer anesthesia to the deceased. It cannot be disputed that administration of anesthesia is an inherently risky part of any operation and requires a specialist anesthesiologist to administer and monitor the effects on a patient. Prior to any medical procedure requiring anesthesia, the anesthesiologist is required to review the patient’s medical record, history, prior medications, allergies and time requirements of the operation to determine the best combination of drugs to use and procedure to follow. If the anesthesiologist fails to properly do so, he or she poses increased risk of complication, injury or even death of a patient. We may also beneficially recall here that in Vinod Prasad Nautiyal vs Smt Savitri Uniyal & Ors (FA No. 79 of 2005, decided on 20.5.2011) the Hon'ble National Commission agreed with the view of the Hon'ble State Commission that, where an operation was performed with no arrangements for a qualified anesthetist, no expert opinion was required to establish that it constituted an act of professional negligence. Hence we cannot but conclude that this is a case of medical negligence.
31. Further medical negligence, although already been brought out clearly by the Hon’ble President but bears reiteration in view of its gravity, is that, even though the deceased failed to regain consciousness even 5 (five) hours after of completion the operation and till then was not even able to breathe on her own, she was shifted to the private ward and her ventilator support withdrawn as soon as she started to breathe on her own. For 7 (seven) whole hours during night from about 9 p.m. on 09.08.2004 to 4 a.m. on 10.08.2004 although the deceased remained abnormally unconscious, all that the O.P. Hospital admittedly did was to give her oxygen incubation and keep a doctor for round the clock bedside ‘observation’. When the patient’s life was at stake, much more urgent and serious medical steps were required to be taken by the O.P. Hospital besides ‘observing’ her condition, which it miserably failed to do.
32. Furthermore, in Smt. Savita Garg vs. Director, National Heart Institute (AIR 2004 SC 5088, para 16) the Hon'ble Supreme Court held that "Once an allegation is made that the patient was admitted in a particular hospital and evidence is produced to satisfy that he died because of lack of proper care and negligence, then the burden lies on the hospital to justify that there was no negligence on the part of the treating doctor / or hospital. Therefore, in any case, the hospital which is in better position to disclose that what care was taken or what medicine was administered to the patient. It is the duty of the hospital to satisfy that there was no lack of care or diligence." In our considered view, in the instant case, whereas the Complainant has satisfied us that the deceased died owing to lack of proper care and negligence on the part of the O.P. Hospital, the O.P Hospital has failed to discharge its burden and duty to satisfy us otherwise that there was no lack of care or diligence on its part.
33. It also requires to be noted here that the deceased in the instant case was a housewife and we have keenly borne in mind the following illuminating observations of the Hon’ble Apex Court while determining the quantum of compensation while, at the same time, we are deeply conscious of the fact that no amount of money can ever compensate the sudden loss of a precious life and its heart-rending emotional impact on the deceased’s family, for which all that we can do is to offer our sympathies:
- Lata Wadhwa v. State of Bihar (AIR 2001 SC 3218, para 10)
''So far as the deceased housewives are concerned, in the absence of any data and as the housewives were not earning any income, attempt has been made to determine the compensation on the basis of services rendered by them to the house. ….. But even in the absence of such data and taking into consideration the multifarious services rendered by the housewives for managing the entire family, even on a modest estimation, should be Rs. 3000 per month and Rs. 36,000 per annum. This would apply to all those housewives between the age group of 34 to 59 and as such who were active in life.”
- Malay Kumar Ganguly vs Sukumar Mukherjee & Ors. (2009) 9 SCC 22
"Loss of wife to a husband may always be truly compensated by way of mandatory compensation. How one would do it has been baffling the court for a long time. For compensating a husband for loss of his wife, therefore, courts consider the loss of income to the family. It may not be difficult to do when she had been earning. Even otherwise a wife's contribution to the family in terms of money can always be worked out. Every housewife makes contribution to his family. It is capable of being measured on monetary terms although emotional aspect of it cannot be. It depends upon her educational qualification, her own upbringing, status, husband's income, etc."
- Arun Kumar Agarwal Vs. National Insurance Company (2010) 9 SCC 218, paras 23 and 24 :
“In India the Courts have recognised that the contribution made by the wife to the house is invaluable and cannot be computed in terms of money. The gratuitous services rendered by wife with true love and affection to the children and her husband and managing the household affairs cannot be equated with the services rendered by others. A wife/mother does not work by the clock. She is in the constant attendance of the family throughout the day and night unless she is employed and is required to attend the employer's work for particular hours. She takes care of all the requirements of husband and children including cooking of food, washing of clothes, etc. She teaches small children and provides invaluable guidance to them for their future life. A housekeeper or maidservant can do the household work, such as cooking food, washing clothes and utensils, keeping the house clean etc., but she can never be a substitute for a wife/mother who renders selfless service to her husband and children.
It is not possible to quantify any amount in lieu of the services rendered by the wife/mother to the family i.e. husband and children. However, for the purpose of award of compensation to the dependents, some pecuniary estimate has to be made of the services of housewife/mother. In that context, the term `services' is required to be given a broad meaning and must be construed by taking into account the loss of personal care and attention given by the deceased to her children as a mother and to her husband as a wife. They are entitled to adequate compensation in lieu of the loss of gratuitous services rendered by the deceased. The amount payable to the dependants cannot be diminished on the ground that some close relation like a grandmother may volunteer to render some of the services to the family which the deceased was giving earlier.”
- Jaswinder Singh Vs Santokh Nursing Home; (2012) 12 SCC 550 which relied upon Arun Kumar Agarwal (supra).
34. In awarding interest too, we have been diligently guided by the judgment of the Hon’ble Supreme Court rendered in Balram Prasad vs Kunal Saha & Ors. (Civil Appeal No. 2867 of 2012 decided on 24.10.2013) where it held, inter alia, in para 102 :
“Therefore, the National Commission in not awarding interest on the compensation amount from the date of filing of the original complaint up to the date of payment of entire compensation by the appellant-doctors and the AMRI Hospital to the claimant is most unreasonable and the same is opposed to the provision of the Interest Act, 1978. Therefore, we are awarding the interest on the compensation that is determined by this Court in the appeal filed by the claimant at the rate of 6% per annum on the compensation awarded in these appeals from the date of complaint till the date of payment of compensation awarded by this Court.”
35. Lastly, the facts and circumstances of the present complaint case being somewhat similar, it would be beneficial to reproduce here the following observations of the Hon’ble Supreme Court made in Balram Prasad vs Kunal Saha & Ors. (supra) in paras 148 and 149 thereof :
“Before parting with the judgment we are inclined to mention that the number of medical negligence cases against doctors, Hospitals and Nursing Homes in the consumer forum are increasing day by day. In the case of Paschim Banga Khet Mazdoor Samity Vs. State of West Bengal, this Court has already pronounced that right to health of a citizen is a fundamental right guaranteed under Article 21 of the Constitution of India. It was held in that case that all the government Hospitals, Nursing Homes and Poly-clinics are liable to provide treatment to the best of their capacity to all the patients.
The doctors, Hospitals, the Nursing Homes and other connected establishments are to be dealt with strictly if they are found to be negligent with the patients who come to them pawning all their money with the hope to live a better life with dignity. The patients irrespective of their social, cultural and economic background are entitled to be treated with dignity which not only forms their fundamental right but also their human right. We, therefore, hope and trust that this decision acts as a deterrent and a reminder to those doctors, Hospitals, the Nursing Homes and other connected establishments who do not take their responsibility seriously.”
