Justice in Healthcare: The Battle Against Medical Negligence
Table of Contents
Case Background:
The appeals stem from a State Commission order in Uttar Pradesh, which partly allowed a complaint of medical negligence involving Surya Medical Centre and its associated medical professionals.
Appeals Filed:
Three separate appeals challenge the State Commission’s order, each by different appellants, including medical professionals and the medical centre.
Key Allegations:
The complaint alleges improper pre-operative preparations and care, leading to the patient suffering from Hypoxia Ischemic Encephalopathy (HIE) due to lack of oxygen during surgery.
State Commission’s Decision:
The State Commission found the opposite parties guilty of medical negligence and awarded compensation to the complainants for professional loss, mental agony, and punitive damages.
Final order
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
FIRST APPEAL NO. 30 OF 2013
(Against the Order dated 04/12/2012 in Complaint No. 13/2006 of the State Commission Uttar Pradesh)
DR. H.B. M. PANTH14/04, KRISHNA NAGAR, LUCKNOWU.P Appellant(s)Versus
ASKARI HUSSAIN & 4 ORS.S/O. LATE SRI A HUSAIN, R/O. MAQBARA AMJAD ALI SHAH, P.S.-HAZRATGANJLUKCNOWSMT. ASMAT BANOW/O. SRI ASKARI HUSAIN, R/O. MAQBARA AMJAD ALI SHAH, P.S.- HAZRATGANJ,LUCKNOW. U.PMASTER AMANS/O. SRI ASKARI HUSAIN, THROUGH HIS NATURAL GUARDIAN, SRI ASKAR HUSAIN, R/O. MAQBARA AMJAD ALI SHAH, PS- HAZRATGANJLUCKNOW U.PDR. DINESH KUMAR, DIRECTOR,SURYA MEDICAL CENTRE, 546, SURYA CHAURAHA, KANPUR ROAD,LUCKNOW U.PDR. RANJANA PANDEYSURYA MEDICAL CENTRE, 546, SURYA CHAURAHA, KANPUR ROAD,LUCKNOW U.PSANJIVANI MEDICAL CENTRE,
(A UNIT OF ZAFARA HEALTHCARE SERVICE PVT. LTD.), TOORIAGANJ CROSSING, KAKHAS,LUCKNOWU.P Respondent(s)
FIRST APPEAL NO. 52 OF 2013(Against the Order dated 04/12/2012 in Complaint No. 13/2006 of the State Commission Uttar Pradesh)1. DR. RANJANA PANDEYW/O. SHRI A.K. PANDEY, R/O. HOUSE NO. 1645, SECTOR-1,L.D.A. COLONY, KANPUR ROAD,LUCKNOW (U.P) Appellant(s)Versus
ASKARI HUSSAIN & 5 ORS.R/O. MAQBARA AMJAD ALI SHAH, P.S. HAZRATGANJ DISTRICT LUCKNOWU.PSMT. ASMAT BANO,W/O SHRI ASKAR HUSAIN, R/O. MAQBARA AMJAD ALI SHAH, P.S. HARAT GANJ,DISTRICT- LUCKNOW U.PMASTER AMAN,S/O. SHRI ASKAR HUSAIN, R/O. MAQBARA AMJAD ALI SHAH, P.S. HAZRATGANJ,DISTRICT-LUCKNOW, U.PDR. DINESH KUMAR (DIRECTOR)SURYA MEDICAL CENTRE, 546, SURYA CHAURAHA, KANPUR ROAD,DISTRICT LUCKNOW U.P.DR. H.B.M. PANTH,14/14, KRISHNA NAGAR, LUCKNOW-U.PSANJIVANI MEDICAL CENTRE
(A UNIT OF ZAFARA HEALTHCARE SERVICE PVT LTD.) TOORIAGANJ CROSSING, KAKHAS,LUCKNOW.U.P Respondent(s)
FIRST APPEAL NO. 56 OF 2013(Against the Order dated 04/12/2012 in Complaint No. 13/2006 of the State Commission Uttar Pradesh)1. DR. DINESH KUMARPROPRIETOR, SURYA MEDICAL CENTRE, 546,SURYA CHAURAHA, KANPUR ROAD,LUCKNOW.U.P Appellant(s)Versus
ASKARI HUSSAIN & 4 ORS.S/O. LATE SHRI A. HUSSAIN, R/O. MAQBARA AMJAD ALI SHAH, P.S. HAZRATGANJ,. Respondent(s)LUCKNOW U.PSMT. ASMAT BANOT,W/O. SHRI ASKARI HUSSAIN, R/O. MAQBARA AMJAD ALI SHAH, P.S. HAZRATGANJLUCKNOW. U.PAMANS/O. SHRI ASKARI HUSSAN, R/O MAQBARA AMJAD ALI SHAH, P.S. HAZRATGANJ,LUCKNOW U.P.DR. H.B.M. PANT,14/4, KRISHNA NAGAR, LUCKNOWU.P.DR. RANJANA PANDEY,
HOUSE NO. 1645, SECTOR-I, LDA COLONY, KANPUR ROAD,LUCKNOW.
HON’BLE MR. JUSTICE SUDIP AHLUWALIA,PRESIDING MEMBER
BEFORE:
FOR THE APPELLANT : FA/30/2013FOR THE APPELLANT : MS. ANUKRITI TRIVEDI, ADVOCATE FOR THE RESPONDENTS : MR. L.B. RAI, ADVOCATEMR. ARUN UPADHYAY, ADVOCATEMR. CHETAN HASIJA, ADVOCATE MR. SANDEEP KAPOOR, ADVOCATE.FOR THE RESPONDENT : FA/52/2013FOR THE APPELLANT : MR. SANDEEP KAPOOR, ADVOCATE FOR THE RESPONDENTS : MR. L.B. RAI, ADVOCATEMR. ARUN UPADHYAY, ADVOCATEMR. CHETAN HASIJA, ADVOCATE. FA/56/2013FOR THE APPELLANT : MR. CHETAN HASIJA, ADVOCATE.FOR THE RESPONDENTS : MR. SANDEEP KAPOOR, ADVOCATE.MR. L.B. RAI, ADVOCATEMR. ARUN UPADHYAY, ADVOCATEDated : 09 January 2024ORDERJUSTICE SUDIP AHLUWALIA, MEMBERThe present three Appeals have been filed by the Appellants against the impugned Order dated 04.12.2012 passed by the State Consumer Disputes Redressal Commission, Uttar Pradesh in Complaint No. 13 of 2006, vide which the Complaint filed by the Complainants was partly allowed.
These three Appeals were earlier heard by the Division Bench presiding by Hon’ble Dr. S.M Kantikar, Presiding Member and Hon’ble Mr. Dinesh Singh, Member. The Presiding Member had allowed the Appeal and dismissed the Complaint. Hon’ble Mr. Dinesh Singh, Member had disposed off the Appeals by confirming the findings of deficiencies/Negligence arrived at by the State Commission, but had reduced the rate of interest of delay in compliance with modification in the manner of payment. The point of dissent within the Division Bench had been articulated by the aforesaid Hon’ble Members as follows:
“Whether the Appeals be allowed and the Complaint dismissed OR Whether the Appeals be disposed of by confirming the findings of deficiency/negligence made by the State Commission, reducing the rate of interest for delay in compliance from 15% per annum to 10% per annum and modifying the manner of payment of compensation to the Complainants”
The matter was consequently referred to a third Member by the Hon’ble President. But the concerned Member, Hon’ble Ms. Justice Deepa Sharma being on the verge of demitting office was not in a position to hear the matter, which thus came for consideration before this Bench.
The facts and question of law involved in these three Appeals are identical. However, for the sake of convenience, First Appeal No. 30 of 2013 is treated as the lead case and the facts enumerated hereinafter are taken from the same.
The brief facts are that Surya Medical Centre is a Nursing Home being run by Dr. Dinesh Kumar (OP-1) in the capacity of Director with the help of Dr. H.B.M. Panth (OP-2) and Dr. Ranjana Pandey (OP-3). On 22.09.2004 the Complainant No. 2, Smt. Asmat Bano, who was a pregnant lady, went for check-up at Surya Medical Centre. She was examined at the Medical Centre and an ultrasound report was also prepared. It was alleged in the complaint that since the lady doctor i.e. Dr. Ranjana Pandey (OP-3), was not available at that time, so Dr. Dinesh Kumar (OP-1), Director of the Medical Centre, asked the Complainants No. 1 and 2 to visit again on 24.09.2004. The Complainants again visited the Nursing Home on 24.09.2004 where Dr. Ranjana Pandey examined the Complainant No. 2 and medically advised both the Complainants that the child in the womb is not showing any movement in the womb; and that immediate caesarean operation is necessary to save the life of the child. The ultrasound report was also shown to Dr. Ranjana Pandey. It was stated in the complaint that according to the ultrasound report the pregnancy appeared normal and the due date of the delivery of the child was to fall on 24.10.2004. The caesarean operation was conducted by the Doctor on 24.09.2004. It was further alleged in the complaint that the Opposite Parties did not make any proper pre- operative preparation and care to make the operation successful. It was also averred that the Opposite Parties failed to take pre-operative care or preparation that includes securing and keeping ready adequate quality of cross-matched blood, oxygen cylinders, artificial respirator etc. not only for the purpose of operation, but also to overcome any apprehended complications.
It has also been alleged that the Complainant No. 2 was admitted into the Operation Theatre without any preparations. At the time of the operation the emergency arose when the Complainant No.2 required machine operated respirator and supply of oxygen. The Doctor at Surya Medical Centre failed to supply the Oxygen to the Complainant No. 2 and for that the Director had to rush to the market to arrange an oxygen cylinder, which took at least fifteen minutes, and in that period the cells of the brain and other parts of the body were damaged up to 90% rendering the Complainant No. 2 as a victim of Hypoxia Ischemic Encephalopathy (HIE), and both the sides of the tongue showed cutting of teeth and also the teeth were damaged. It has been further been stated in the complaint that the Complainant No. 2 was under the effect of Hypoxia Ischemic Encephalopathy and was shifted from Surya Medical Centre to Sanjivani Medical Centre under coma where she regained her senses after two days, but her memory had been damaged. It was further alleged that as per the medical advice of doctors of Sanjivani Medical Centre, the patient was also taken to Sanjay Gandhi Post Graduate Institute of Medical Sciences (SGPGIMS), Lucknow where Dr. U. K. Misra, Professor & Head of the Deptt. of Neurology examined the patient and drew a conclusion that the patient is a victim of Hypoxia Ischemic Encephalopathy and as such the loss of sense of recognition and memory is very well in existence in the patient. The Complainant No. 2 was again examined by Dr. U. K. Mishra on 06.01.2005 at SGPGI, Lucknow and he found that she did not show any significant improvement and also advised that she needs prolonged treatment. A certificate was also issued by Dr. U. K. Mishra. It was also stated in the complaint that almost more than one and half years have passed but there is no sign of improvement in the condition of the patient and according to the opinion of Dr. U. K. Mishra, the hope of improvement is gradually diminishing. Aggrieved by the actions of the Opposite Parties, the Complainants filed the complaint before State Consumer Disputes Redressal Commission, Uttar Pradesh.
The State Commission partly allowed the Complaint vide the impugned Order dated 04.12.2012. The relevant extracts of the impugned Order are set out as below –
“…On the basis of said principles, in the present case hold the opposite parties no. 1 to 3 guilty of medical negligence as in the instant case principles no. I to IV, VII and XI are attracted as they have failed to make all necessary and proper arrangement before conducting such major operation which has been conducted in haste without looking to the ultrasound report which indicated normal delivery ignoring the interest of the complainant no.2/patient which has resulted into spoiling the lives of the young couple complainant no. 2/patient, complainant no.1/husband of complainant no.2 as well as deprivation of motherly care, upbringing of the complainant no. 3/child of the complainant no.1 and 2 apart from unnecessary expenses incurred on treatment and wastage valuable time of the two young professionals in the field of law. Further the complainant no. 2 has in fact become a burdensome liability indefinitely for her husband/complainant no. 1 who was on her own earning her livelihood apart from supporting the family. In this way family has suffered huge financial loss on account of her non-practicing the legal professional. Further the complainant no.1, is also suffering from constant mental agony and financial loss for not spending enough time to his legal profession as under the compelling circumstances he is bound to take care of the child who is deprived of the motherly love, affection and care since birth.
From the aforesaid analysis we hold that the opposite parties no. 1 to 3 were the service providers and they must have charged heavy fees etc. from the complainants who were the
consumers as defined under Section 2(1)(d) of the Consumer Protection Act, 1986. Evidently opposite parties no. 1 to 3 are guilty of committing not only gross medical negligence which has resulted into irreparable loss to the three lives on account of deprivation of active roll of the complainant no. 2 as wife and equal partner to complainant no.1 and as mother to complainant no.3, but also for Unfair Trade Practice for not accepting the lapses on their part voluntarily and to produce the relevant documents on being summoned by this Commission despite submission of few documents by the complainant as well as assertions of the opposite party no.4 which are sufficient to prove that the said operation was actually conducted by them and prior to that the complainant/patient beyond doubt received treatment there. In fact this conduct of opposite parties no. 1 to 3 was not only against the medical ethics which is based on mutual good faith but also inhuman as it is the duty of the doctor/Medical Centre/Nursing Home to discharge the patient alongwith all documents, case history relating to treatment to facilitate other doctors/Hospital so that the patient may avail better treatment immediately if available elsewhere…
…In this case before us from the circumstances and evidence adduced by the complainant, statements of opposite parties and the affidavits of witnesses it is evident that on account of non- availability of Oxygen to the complainant no.2 immediately after the operation in Surya Medical Centre on account of the gross negligence on the part of opposite parties no.1 to 3 which has actually resulted into grave hardship and damage to the complainant no.2 who has lost memory. Therefore, we do not think that in this case expert evidence was necessary to prove medical negligence on the part of opposite parties no. 1 to 3. In this case their negligence is evident. The principle of res-ipsa-loquiter operates and the complainant does not have to prove anything as the thing (res) proves itself. In such a case it is for the opposite parties no. 1 to 3 to prove that they had taken care and done their duty to repel the charge of negligence which they have utterly failed to do….
However, the opposite party no.4 who acted very much in the interest of the patient and on account of whose timely and hectic efforts that the patient has been saved from further damage which could have resulted even her death, we exonerate them from any liability being not found deficient in any way. Therefore, the complaint is dismissed only against opposite party no.4 Sanjivani Medical Centre.
Before we end, a word of appreciation for the complainant no.1 who despite all odds and handicaps being faced by him, had argued the matter. We must record that though a sense of deep injury was discernible throughout his protracted submissions he remained unruffled and behaved with quiet dignity, pleaded the case bereft of any rancour or invective for those who, in his perception, had harmed and his dear ones.
ORDER
The complaint is allowed in above terms. The opposite parties no. 1 to 3 are directed to pay as follows within a period of two months from the date of receipt of this order to the complainant no.1 on behalf of all the three complainants failing which interest at the rate of 15% per annum shall become payable by them until the date of payment:
Compensation of Rs. 12,00,000/- (Rupees Twelve lacs only) for the professional loss as well as the mental agony/pain suffered by the complainant no.1.
Damages/compensation of Rs. 76,00,000/- (Rupees Seventy six lacs only) for the professional loss, as well as the mental agony/pain suffered by the complainant no.2.
Damages/compensation of Rs. 5,00,000/- (Rupees Five lacs only) to complainant no.3 for loss of natural love, affection and proper care of the mother.
Exemplary punitive damages including costs of Rs. 2,00,000/- (Rupees Two lacs only) for committing unfair trade practice to complainant no.1 to create a deterent effect.”
Aggrieved by the Order of the State Commission, the Appellant filed the present Appeal raising the following key issues –
That the Appellant has nothing to do with Surya Medical Centre. The Appellant is neither an employee of the Centre nor is the Appellant in any way connected with Surya Medical Centre at any time;
That the State Commission has miserably erred in law to disregard the statement as mentioned in the Written Statement of OP-1, i.e. Dr. Dinesh Kumar wherein he has explicitly stated that the Appellant has never been associated in any way with Surya Medical Centre in running the Nursing Home and the Appellant had never given any treatment to the wife of Complainant No. 1;
That the Appellant is a renowned Anaesthetist who worked with Government Civil Hospital (Shyama Prasad Mukherjee Hospital Lucknow) and being employed in Government Hospital, the Appellant cannot associate himself with any other Hospital anywhere in the country;
That the Appellant is only an Anaesthetist and not a Surgeon who can perform operation on the wife of Complainant No. 1. Even assuming that the Appellant was present at the time of operation in the operation theatre even then no negligence can ever be attributed to the act of Appellant as the Appellant was not associated with the operation in any way;
That the liability for medical negligence was fixed by the State Commission without discussing the role of Appellant in the alleged act of medical negligence hence as such the Order passed by the State Commission is bad in the eye of law.
The Ld. Counsel for Appellant argued that the impugned Order does not consider the individual case of the Appellant, who has no involvement whatsoever with Surya Medical Centre and he has been wrongly and unfairly painted with the same brush as the other Respondent Doctors; That on the relevant day, the Appellant was present at his regular job at the Civil Hospital, Lucknow and was not even present at Surya Medical Centre; That the complaint does not contain any specific allegation against the Appellant based on which he could be held liable. The impugned Order is based entirely on conjectures and surmises and is legally unsustainable; That no relief can be granted on the basis of vague and unsubstantiated allegations; That all defences and pleas are allowed to be taken and the State Commission could not infer guilt of the Appellant on the basis of it; That the statement by the State Commission in the impugned Order regarding Doctors who are working in Government hospitals are also working for private hospitals in order to cheat the patients is presumptuous, erroneous and is contrary to Section 57 of the Indian Evidence Act; That a new plea in replication cannot be allowed and hence the State Commission allowing the Complainant to raise new plea is against the law; That the compensation that has been awarded is without any basis as the amount that has been awarded even exceeds the damages sought in the Complaint, which is legally impermissible and wholly unjustified; The Ld. Counsel for Appellant in support of his contentions relied upon the cases of “Master Nitish Sathi v. Naresh Trehan, 2009 (2) CPC 491”, “Dadabhau Shankar Ghodke v. Mohanlal Kanhyalal Agrawal, 2003 (2) ALLMR 121”, “Gurjant Singh v. Krishan Chander, AIR 2001 Raj 211”.
Ld. Counsel for Respondents argued that the sole contention of the Appellant before this Commission is that he was working in SP Mukherjee Hospital on the date of the alleged operation therefore he can’t be present in Surya Medical Centre is absolutely false as the document relied upon by the Appellant regarding this clearly depicts that the duty of Appellant was till 2pm only and the operation took place at 2.45 pm. The State Commission has gone to the extent of saying that it is a normal practice in Uttar Pradesh that Government Doctors are engaged in private Nursing Homes apart from Government and they do operation for the purpose of earning money; That once the initial burden is discharged by the Complainant by making out a case of negligence on the part of the Doctor, then the onus shifts on to the Hospital and attending Doctors. This has been observed by the Hon’ble Supreme Court in the case of “Nizam Institute of Medical Sciences v. Prasanth S. Dhananka and Ors., (2009) 6 SCC 1”. It is also submitted that it is not binding in every case to have the opinion of the expert witness and this view was taken by the Hon’ble Supreme Court in the case of “V. Kishan Rao v. Nikhil Super Specialty Hospital and Ors. (2010) 5 SCC 513”; That there is no restriction on the courts that Courts can award compensation only up to what is demanded by the Complainant in the complaint. This view has been taken by this Commission in the case of “Indu Sharma v. Indraprastha Apollo Hospital & Ors.”
This Commission has heard both the Ld. Counsel of the Appellants and Respondents; and perused the material available on record.
It may be noted at the outset that the Ld. State Commission had come to a finding that negligence on the part of the Opposite Party’s (the present Appellant’s) was proved. Hon’ble Member, Mr. Dinesh Singh, who was part of the Division Bench hearing these Appeals was also of the same opinion. However, the other Member, Hon’ble Dr. S.M. Kantikar had deferred from this finding, as he was of the opinion that the evidence on record was not sufficient to prove the claim of the Complainants/Respondents. It would therefore be in order to consider the reasons for which the said Hon’ble Member was of the opinion that the claim made in the original Complaint was not proved. Consequently, this Commission now proceeds on to consider such reasons which have been recorded by the Hon’ble member in his Order pronounced on 19.03.2021, and which are contained in paras 13 to 19 of the Order passed by the Hon’ble Member Dr. S.M. Kantikar, and are set out as below –
“13. It is the well settled principle that to succeed the claim of medical negligence the Complainant / patient has to prove the essential elements of medical negligence i.e. 4Ds. The four Ds [4 Ds] of medical negligence are duty, dereliction, direct causation, and damages. All four of these elements must be proven for negligence to be found. In this context “Duty” means that a relationship exists between a healthcare provider and patient with respect to the patient’s medical care. Therefore doctor-patient relationship must be established. “Dereliction” refers to the failure of a medical professional to meet the duty of care. It is also known as a “breach of duty.” The patient must establish that the medical professional’s breach of the duty of care was the direct cause of the patient’s injury / damages. The patient must show the actual term suffered either physically, mentally or both. This is often shown through medical records, prescriptions and/or testimony which establishes a Doctor – Patient relationship existed at the time of the injury.
In the instant case, the Complainants filed the prescriptions only which were issued during Antenatal check-up done on 26.02.2004 and 18.05.2004. It, in any stretch of imagination, does
not prove that on 24.09.2004, the Caesarean operation was performed by the Opposite Parties at Surya Medical Centre. There is no evidence like the anaesthesia record, OT register, the delivery register or nursing notes etc. The Caesarean operation is not a minor surgery, and non- availability of single record of the Surya Medical Centre is unacceptable. It was alleged that patient was shifted in serious condition (HIE) to Sanjivani Medical Centre and she was there under treatment till 04.10.2004 i.e. 11 days. It is surprising that the complainants even failed to file a treatment record of Sanjivani Medical Centre. They filed one letter / certificate (Ex. CW- 1/8) and few laboratory reports issued by Kohli Pathology and blood bank, and the CT Scan report of Kohli CT Scan and ultrasound centre Lucknow. The medical record of SGPGI filed by the complainants is devoid of findings that the cause of HIE was due to negligent treatment at Surya Medical Centre. The Complainants in their support, filed the four affidavits of their relatives but all appear to be stereotypic affidavits which do not convincingly establish the case. In my view, the Complainants have miserably failed to establish the Doctor-Patient relationship and any duty of care in existence on 24.09.2004 from the Opposite Parties – doctors.
The State Commission entirely relied upon one letter / certificate issued by Sanjivani Medical Centre (the Opposite Party No. 4) and held the Opposite Parties liable for medical negligence. The letter / certificate (Ex. CW-1/8) is reproduced as below:
“Dated 24.09.2004 That the Asmat Bano w/o A. Husain was operated in Surya Medical Center at 546, Surya Chauraha, Kanpur Road, Lucknow (as told by the attendants) on 24.09.2004 after her caesarean operation when her condition become serious then on the same she was admitted in Sanjivani Medical Center, for her proper treatment.”
In my view, it is just a letter and not a certificate and it itself is vague which creates lot of suspicion and its genuineness. It is devoid of details like time of admission, clinical examination & treatment details. It is surprising to note that the condition of patient was stated as ‘serious’ ‘as told by the attendants’ which is not a medical language. The signature put on the letter is not convincing whether it was issued by any medical doctor of Sanjivani Medical Centre. There was no name of any person who signed the letter. Thus, it has no evidentiary value.
It is pertinent to note that both the Complainants (1 & 2) are experienced lawyers by profession, practicing before Hon’ble Supreme Court and High Court. It is unbelievable and unacceptable that how they kept mum or remained just silent spectators when they did not receive a single medical record of Surya Medical Centre or Sanjivani Medical Centre. They were not prudent; who would have complained to Medical Council or Police; and/or approached the local Health Authority or Court. Therefore, the Complainants have made bald allegations against the Opposite Parties when the alleged Caesarean operation was not performed at Surya Medical Centre.
On the other hand, the Opposite Party No. 1 has placed on record the Indoor Patient Register of the Surya Medical Centre (nursing home) for a period from 14.09.2004 to 30.09.2004 and the cash memos of money receipts of various patients, which show that no patient in the name of Asmat Bano (Complainant No.2) was ever admitted there. The RTI information filed by Dr.
H.B.M. Panth (the Opposite Party No. 2) revealed that he was an Anaesthetist and at his regular job at the Civil Hospital and could not have been present at Surya Medical Centre on 24.09.2004. Moreover, his mere association with the Surya Medical Centre shall not be construed as medical negligence in the instant case. In my view, the State Commission on presumption erroneously observed that Govt. doctors in Uttar Pradesh are involved in illegal
activities and working for private hospitals in order to cheat the patients; and that the Opposite Party No. 2 engaged in such activity who attended the operations at the Surya Medical Centre.
In Jacob Mathew v. State of Punjab (2005) 6 SCC 1 Hon’ble Supreme Court observed that: “medical practitioners at times also have to be saved 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 practitioners. 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 their professional duties without fear and apprehension…”.
Therefore, mere allegations, apprehensions, conjectures and surmises cannot be relied upon unless they are corroborated with evidential value to prove deficiency in service or negligence on the part of the hospital or doctor. The onus is on the complainant to prove the negligence of the treating doctor and hospital.”
It is thus seen that the Hon’ble Member, Dr. S.M. Kantikar, after having perused the evidence led by the parties concerned was first of all of the opinion that there was no proof that the Caesarean Operation on the Complainant No. 2 had actually been done in the Surya Medical Centre on 24.09.2004, and that the prescriptions issued in favour of the said Complainant showing that Antenatal check-ups were done on her on 26.02.2004 and 18.05.2004 were not helpful to her claim, as no evidence like Anesthesiatic record, OT register, the Delivery Register or Nursing notes were not forthcoming. The Hon’ble member also took an adverse view of the matter against the complainants for their failure to file the treatment record of Sanjivani Medical Centre, where the patient was allegedly shifted directly from Surya Medical Centre, after her condition had become critical. Further, in the opinion of the Hon’ble Member, the document dated 24.09.2004 purportedly issued from Sanjivani Medical Centre was not reliable as it was a vague letter, and not a Certificate, and ‘creates lot of suspicion’, since it was not clear as to who had signed on the same, on account of which it had no evidentiary value. Besides, the Hon’ble Member was also of the opinion that both the Complainants (1 & 2) were experienced lawyers by profession, practising before the Hon’ble Supreme Court and High Court,, on account of which it was unbelievable and unacceptable as to how they had kept mum or remained just silent spectators when they did not receive a single medical record of Surya Medical Centre or Sanjivani Medical Centre. Furthermore, the Hon’ble Member also noted that the Complainants were not prudent; who would have complained to the Medical Council or Police; and/or approached the local Health Authority or the Court. On the other hand, the dissenting Hon’ble Member relied upon the Indoor Patient Register of the Surya Medical Centre which was produced for the period between 14.09.2004 to 30.09.2004 and the Cash Memo of money receipts of various patients, which would go to show that no patient by the name of a Asmat Bano (Complainant No. 2) was ever admitted there. The Hon’ble Member also relied upon the RTI information filed by the Appellant Dr. H.B.M. Panth to the effect that he was doing his regular job as an Anaesthetist at the Civil Hospital on 24.09.2004, and so could not have been present at Surya Medical Centre on that date. It was essentially in the light of these facts and circumstances that the Hon’ble Member Dr. S.M. Kantikar had come to the conclusion that the Complainants had failed to prove their allegations against the Opposite Parties/Appellants.
On the other hand, the Hon’ble Member Mr. Dinesh Singh had agreed with the findings of the Ld. State Commission with the following observations–
“10. It is, thus, seen that the sole defence offered by the O.P.s 1, 2 and 3 doctors, during arguments on their appeals on 27.11.2020, is a bland averment that the operation in question was not conducted on the patient in Surya Medical Centre on 24.09.2004 and none of the O.P.s 1, 2 and 3 doctors was associated with it.
Having taken this position, the O.P.s 1, 2 and 3 doctors and their learned Counsel did not make any submission or argument apropos the State Commission’s appraisal re the deficiency / negligence in the matter.
Pertinently, during the arguments on 27.11.2020, O.P. 1 and 3 doctors i.e. the director of Surya Medical Centre and the gynecologist admittedly associated with Surya Medical Centre, on a specific question from the bench, admitted that Exhibits CW – 1 / 5, a medical prescription dated 25.02.2004 of Surya Medical Centre, CW – 1/6, a medical prescription dated 18.05.2004 of Surya Medical Centre, and CW – 1/7, a medical prescription dated 23.04.2004 and 10.07.2004 of Surya Medical Centre, relating to the patient, are in their respective handwritings
i.e. in the respective handwritings of the gynaecologist and the director of Surya Medical Centre. This categorical admission in person from O.P.s 1 and 3 doctors is so recorded.
Exhibit CW – 1/8, a certificate dated 24.09.2004 of Sanjivani Medical Centre certifies that as told by the attendants the patient was operated in Surya Medical Centre on 24.09.2004 and after her caesarean operation when her condition became serious on the same date she was admitted in Sanjivani Medical Centre for proper treatment.
During arguments on 27.11.2020, the learned Counsel for the O.P. doctors and the O.P. doctors in person did not deny this document, but made an irrational and unacceptable argument that “as told by the attendants” is “hearsay” and raises doubts.
It is however to note that if any patient is taken to any medical facility in a coma state, it is but only the attendants who speak with the facility.
It is also to note that the assertion of O.P. 2 doctor (anaesthetist), that he was in government service and as such was not permitted under state government rules to partake in private practice, is also not tenable. That rules do not permit cannot ipso facto be construed to imply that the O.P. 2 doctor in fact did not break the rules and provide his services as an anaesthetist in Surya Medical Centre.
Relying on inter alia the above – mentioned documents and on the evidence by way of affidavit from witnesses, the State Commission has conclusively determined that the patient was in fact operated upon in Surya Medical Centre on 24.09.2004.
During arguments on 27.11.2020, on a specific question from the bench, that, if, as per their own averments, the operation on 24.09.2004 was not conducted in Surya Medical Centre and none of the O.P. doctors was associated with the operation, why had the Complainants filed a Complaint against them, learned Counsel for the O.P. doctors and the O.P. doctors in person submitted that the purpose of filing the Complaint was to “extort” money from the O.P. doctors.
They did not elaborate, on request from the bench, why and for what reason the O.P. doctors (only) had been “chosen” by the Complainants for “extortion”. On a further question from the bench, that, if, admittedly, the pre-operation consultation / treatment was being conducted in Surya Medical Centre and if, admittedly, there was no misunderstanding or misapprehension in Surya Medical Centre, then why did the patient go elsewhere for the actual operation and where exactly i.e. at which medical centre / hospital the operation actually took place, no response was forthcoming. Specifically, no reason or logic for the Complainants to “choose” the instant O.P. doctors (only) for “extortion” was offered. Nor was any evidence offered that the Complainant 1, the husband of the patient (Complainant 2), had any criminal record etc. Nor still was any explanation offered that if the O.P. doctors had been “chosen” by the Complainants for “extortion”, why no complaint was lodged with the Police, as would have been normally done by a law abiding citizen “chosen” for “extortion” in this manner.
In the light of the above examination, and considering the detailed examination on this issue by the State Commission in its Order of 04.12.2012, it is abundantly clear that after the caesarean operation was in fact conducted on the patient in Surya Medical Centre on 24.09.2004, and after an emergency which necessitated respirator and oxygen occurred, and after oxygen cylinders were not available in Surya Medical Centre, and after the O.P. 1 doctor (director of Surya Medical Centre) went rushing to the market to procure oxygen cylinders, and after the patient suffered brain damage due to lack of oxygen, and after she was shifted to Sanjivani Medical Centre in a serious condition, the O.P. doctors chose to offer the bland defence that the operation did not take place in Surya Medical Centre at all.
It is abundantly clear that the sole defence aruged by the O.P. doctors in appeal, that the operation in question was not conducted on the patient in Surya Medical Centre on 24.09.2004 and none of the O.P. doctors were associated with it, is a blatant untruth professed brazenly.
In the light of the reasoned appraisal made in respect of deficiency / negligence by the State Commission, noting that it suffers from no misappreciation of the evidence, and the sole defence offered in arguments on their appeals having failed as being a brazen untruth, there is no reason evident to interfere with the findings of deficiency / negligence of the State Commission.”
Having gone through the entire available material on record, and the respective reasons recorded by both the Ld. dissenting Members, it would appear that the findings of Mr. Dinesh Singh, who had concurred with the findings of the Ld. State Commission, are more convincing and acceptable, notwithstanding the fact that the Complainants could not produce any documentary evidence to show that the Complainant No. 2 was actually admitted or operated upon in the “Surya Medical Centre” on 24.09.2004.
This is so, because first of all, the Complainant’s had undoubtedly been able to lead documentary evidence to show that prior to that date, the Complainant No. 2 had been visiting the said Medical Centre and taking treatment/advice of the Appellant/Gynaecologist Dr. Ranjana Pandey for several months during the period of her pregnancy on various dates, which has been taken note of by Hon’ble Member Mr. Dinesh Singh in para 11 of his Order reproduced above.
In the normal course, it stands to reason that she would have continued to get herself examined and treated by the same Gynaecologist when the actual time for delivery had arrived, since she had undisputedly been examined and treated for such a long time at least since 25.02.2004 which was seven months prior to the date of actual Caesarean Operation by the same Gynaecologist in the same Medical Centre. In this manner, considering the ‘preponderance of probabilities’ the complainants would appear to have satisfactorily discharged the initial burden by making out a case of negligence, after which, as laid down by the Hon’ble Apex Court in “Nizam Institute of Medical Sciences versus Prasanth S. Dhananka & Ors. (2009) 6 SCC 1” the onus shifts on the Hospital to show that there was no negligence. That the Complainant No. 2 was actually found to be suffering from “Hypoxic Ischemic Encephalopathy” was certified by the Sanjay Gandhi Postgraduate Institute of Medical Sciences, Lucknow, of which the Ld. State Commission has duly taken note in its impugned Order.
There is no question of any injured person falsely implicating anyone innocent for such injury in the absence of any previous enmity, which has been the view of even the Hon’ble Apex Court, in various pronouncements. The Hon’ble Member Mr. Dinesh Singh in para 15 of his judgment has essentially taken the same view, that in the given circumstances, where the Complainant No. 2 was actually found to have tremendously suffered and become the patient of “Hypoxic Ischemic Encephalopathy”, virtually for her entire life, and there is no material to show that she had any previous enmity with the concerned Doctors, the suggestion that they had falsely implicated the Appellants for ‘extorting money’ is outrightly preposterous. Had extortion been the motive, then nothing prevented the Complainants from similarly making any such allegations against “Sanjivani Medical Centre”, which incidentally was also made a pro forma party in the complaint, since the Complainant No. 2 had lastly been treated there on the relevant date. But no allegations of any wrongdoing/negligence have been made against the said Medical Centre in the Complaint.
The reasons of the Presiding Member, Dr. S.M. Kantikar, in the given circumstances would therefore appear to be hypertechnical and rather insensitive if we objectively consider what the mental condition of The Complainants would have been on the relevant date and time. The Complainant No. 3 is the child who was born on that very day, and so nothing could have been expected of him on that date. His mother, i.e., The Complainant No. 2 was in a virtual crippled and vegetative condition when she was rushed to “Sanjivani Medical Centre”. It was therefore only her husband, i.e., the Complainant No. 1 who had to face the ordeal at that time all by himself. His wife before his own eyes was virtually fighting death, and he therefore had to rush her to “Sanjivani Medical Centre”, to save her life. In the circumstances, he could not have been expected to enter into any quarrels with “Surya Medical Centre” or insist on delivering any documents or proofs that she had been admitted there and had suffered the mishap during her surgery, due to non-availability of oxygen in the Medical Centre, which caused the misfortune. The other reasoning of the Hon’ble Member, that both the Complainant Nos. 1 and 2 “are experienced lawyers by profession, practising before Hon’ble Supreme Court and High court” on account of which, “It is unbelievable and unacceptable that how they kept mum or remained just silent spectators when they did not receive a single medical record of Surya Medical Centre or Sanjivani Medical Centre…” in the given circumstances would appear to be not only rather insensitive, but also incorrect. This is so because, as already noted earlier, the victim/Complainant No. 2 was altogether immobile and inactive following the mishap, and she
probably continues to be so even up to this day. Now it is seen from the documents placed on record on behalf of the complainants in their Convenience Set filed at the time of final hearing before this Bench, that the Complainant No. 1 was enrolled as an Advocate with the Uttar Pradesh Bar Council only on 14.12.2000, which was less than 4 years before the unfortunate incident. He became enrolled as an Advocate in the Supreme Court much later on 18.01.2008. His wife (Complainant No. 2) was enrolled as an Advocate with the Uttar Pradesh Bar Council only on 14.03.2002, and being in a virtually crippled condition, she has not been able to return to her profession ever since, and there is consequently no question of her having been enrolled as Advocate in the Supreme Court. It is further seen from the Affidavit of the Complainant No. 1 filed along with IA No. 6440 of 2014, which was almost 10 years ago, that he was aged 39 years on the date of Affidavit, which would mean that he was aged only about 29 years at the relevant time in 2004. Similarly, the Complainant No. 2 was aged only around 25 years at that time. So the observation that both these complainants “are experienced lawyers by profession, practising before Hon’ble Supreme Court and High court” on account of which, “It is unbelievable and unacceptable that how they kept mum or remained just silent spectators when they did not receive a single medical record of Surya Medical Centre or Sanjivani Medical Centre…”, would appear to be not only incorrect, but also rather uncalled for.
For the same reasons, no adverse view ought to have been taken against the Complainants not only on account of the fact that they had been unable to collect any documents from the “Surya Medical Centre” for the reasons already discussed in detail above, since once having realised the peril and gravity associated with the situation, the said Medical Centre could not have been expected to hand over such documents subsequently to the Complainants, which would have had the effect of destroying their own possible defence in any legal proceedings to follow. Furthermore in these circumstances, the genuineness of the Admission Register maintained and produced on behalf of the Opposite Party (the concerned Medical Centre) before the State Commission, could not have been altogether beyond doubt, since there was ample time and opportunity available to the Medical Centre to make manipulations in the concerned documents, following the date of mishap.
This Bench therefore concurs with the decision of the Hon’ble Member Mr. Dinesh Singh, which has gone in favour of the Complainants/Respondents, who are consequently found entitled to compensation in the given circumstances.
However, the respective liabilities of the three Appellants namely the Director of “Surya Medical Centre”, the Gynaecologist, and the Anaesthetist would appear to be altered in the light of the individual degrees of negligence which can be assigned to each of them. It is the contention of the appellant in FAO No. 52 of 2013, namely Dr. Ranjana Pandey, that she “was only visiting consultant of Sh. Medical Centre and hence vicariously she is not responsible for any damage, if any, suffered by the respondent No. 2”. It has been mentioned elsewhere in her appeal –
“5. It is submitted to this Hon’ble Commission that the respondent no. 4 was the director of Surya Medical Centre and respondent no. 5 was Anesthetist. In any surgical procedure the role of the anesthetist is to institute/provide anesthesia to the patient and it is also the duty of the anesthetist to maintain 100% oxygen during any surgical procedure. Whereas it is the duty of the owner/director/ administrator of the hospital to provide well equipped operation theatre, O.T. Technicians, qualified doctors and nurses, etc. Whereas Surgeon’s duty is restricted upon the
surgery only. In the present case, as alleged by the respondent nos.1 & 2, cesarean section of the respondent no. 2 was performed at Surya Medical Centre. As already submitted to this Hon’ble Commission that the appellant had enquired from the respondent no. 4 whether such procedure was performed at their centre or not as she is not recollecting any such incidence being an old case. Moreover, the respondent nos. 1 & 2 had also not produced any documents, such as, Case Sheet, Surgical Notes, Discharge Slip or Referral Slip to corroborate their claim.”
The aforesaid contentions raised by the said Appellant cannot be regarded as entirely without substance. It needs to be remembered that total damage to the health and lifestyle of the Complainant No. 2 in this case is attributable to the non-availability of oxygen during the surgery, which was primarily the responsibility of the concerned Medical establishment i.e., the “Surya Medical Centre”. The operating surgeon, and to a lesser extent, the Anaesthetist concerned are not expected to personally procure the basic necessities associated with the surgery such as the availability of oxygen. Their roles are limited to administering their specialist skills towards conducting the surgery or administering anaesthesia to the patient, as the situation would demand. It is therefore commonly seen that the concerned Medical establishment in which any procedure is to be conducted, is on its own well equipped with the basic essentials, although such common practice cannot provide any blanket protection for not ensuring beforehand, as an abundant cautionary measure, that all the basic essentials are in place, although in the event of any mishap occurring due to non-availability of any essential item, bulk of the responsibility would fall on the shoulders of the Medical establishment itself. Consequently in the given circumstances, this Bench is of the opinion that out of the total compensation payable to the Complainants, the individual responsibilities of the Appellants are liable to be apportioned in the following manner –
Appellant in FA 56 of 2013 (Proprietor, Surya Medical Centre)
– 85%;
Appellant in FA 30 of 2013 (Anaesthetist) – 10%;
Appellant in FA 52 of 2013 (Gynaecologist) – 5%;
It may be added however, that award of the aforesaid compensation is not to be construed as an adverse reflection on the professional competence of the aforesaid Appellants in their respective specialisations of the concerned Medical fields. On the other hand, it is to be awarded for their omission to make an abundant cautionary check before starting the surgical procedure, to ensure that all the necessary equipment/paraphernalia was in place, although such non- availability of any given item (as oxygen in the present case) was itself not connected to their personal professional skills in their respective fields.
The quantum of compensation awarded by the Hon’ble Member Mr. Dinesh Singh (₹ 95 lakhs) does appear to be fair in the given circumstances. However, the same is slightly in excess of the amount actually prayed for by the complainants in their complaint, which was ₹ 93 lakhs. In all propriety therefore, the need it amount of ₹ 2 lakhs awarded in excess of the complainants’ own prayer, needs to be modified. Further, the apportionment as directed by the Hon’ble Member would also require some modification at this stage mainly because the complainant No. 3, who was a minor at the relevant time, has now already attained the age of majority, and so the keeping the compensation payable to him in the shape of an FDR in a
nationalised bank till his attaining the age of majority, becomes redundant at this stage. In addition, it is almost 20 years after the mishap with the complainants had taken place, in consequence of which the Complainant No. 2 became afflicted with ‘Hypoxic Ischemic Encephalopathy’. So the direction to pay amounts of ₹ 15 lakhs each to two different hospitals for heard medical treatment and welfare would now be only of limited, if any, help since for all this period, the said complainant has remained under consistent treatment and observation, and so it would be best to allow the complainants at this stage to utilise the compensation in such manner as is most suitable to their overall family circumstances in which of course, for the treatment and welfare of the Complainant No. 2 shall undoubtedly continue to remain the first priority.
With the aforesaid observations, these appeals are disposed off after concurring with the findings of the Hon’ble Member Mr. Dinesh Singh, with the modifications that the total compensation awardable to the Respondents/Complainants is now reduced from ₹ 95 lakhs to ₹ 93 lakhs, out of which, the personal share of the complainant No. 3 is reduced to ₹ 23 lakhs, while the entitlement of the Complainant No. 1 is retained at ₹ 20 lakhs, and the balance amount of ₹ 50 lakhs is found payable to the Complainant No. 2. It shall be paid to her directly if the concerned specialist Doctors in the Sanjay Gandhi Postgraduate Institute of Medical Sciences, Lucknow can certify that now her condition has now so improved that she is in a position to rationally and practically utilise the amount directly for her own welfare. If not, the same shall be paid to a Guardian of her own choice, if she is in a position to choose and communicate about her chosen Guardian personally, or otherwise, the payment shall be made to her husband (Complainant No. 1) in which event, needless to mention, his duty shall be to ensure that the said amount is strictly and faithfully utilised for her welfare and future treatment as warranted. The amount of interest on the compensation thus awarded in the case, which was reduced from 15% to 10% by Hon’ble Mr. Dinesh Singh, is retained from the date of passing of the impugned order by the state commission, i.e., 04.12.2012. In addition, litigation costs of ₹ 10,000/- are awarded in favour of the Complainant No. 1/respondent No. 1 in each of the appeals.
The complete compensation with up-to-date interest till the date of actual payment is to be paid by the Appellants to the complainants within three months from the date of this order, during which period the Complainants will secure the certificate from the specialist Doctors of the Sanjay Gandhi Postgraduate Institute of Medical Sciences, Lucknow regarding the mental and physical condition of the Complainant No. 2, after which the payment shall be made in accordance with the directions passed in the previous paragraph. Any outstanding payments beyond the time limit fixed by this Bench shall attract interest at the rate of 12% per annum till the date of final realisation.
Pending application(s), if any, also stand disposed off as having been rendered infructuous.