GOPAL VASHISTH vs State of Uttaranchal

THIS complaint has been filed by Sh. Gopal Vashisth and his son and daughter for recovery of Rs. 10,00,000/- as compensation on the death of Smt. Richa Sharma, wife of the complainant No. 1 Sh. Gopal Vashisth and mother of other two complainants due to the medical negligence of the opposite parties.

THE brief facts of the case are that Smt. Richa Sharma under the treatment of opposite party No. 2, Dr. Kusum Lata Sagar posted as Medical Officer in S.P.S. Hospital, Rishikesh, District Dehradun. It is said that Smt. Richa Sharma was pregnant and she became sick on 1.6.2002. She contacted Dr. Kusum Lata Sagar at her reisdence. She demanded a fee of Rs. 500/-. THE complainant No. 2, Sh. Gopal Vashisth (hereinafter called the complainant) paid only Rs. 300/- to the opposite party No. 2. She gave injection to Smt. Richa Sharma. She went home. On the same date at about 10.00 p.m. Smt. Richa Sharma felt stomach ache. She inquired about Dr. Kusum Lata Sagar and found that she has gone to hospital. THE complainant took her wife Smt. Richa Sharma to the hospital. THE complainant paid a sum of Rs. 500/- to Dr. Kusum Lata Sagar. She asked not to inform anybody about taking of the fee. THE complainant got an emergency slip from the counter on payment of Rs. 25/-. It is said that on the direction of the opposite party No. 2, one Nurse had shown a piece of muscle and it was revealed that this was the root cause of stomach ache. THE opposite party No. 2 prescribed some medicines and went to the house. On 2.6.2002 the opposite party No. 2 told that Smt. Richa Sharma is all right and she was discharged from the hospital on 2.6.2002. Again on 3.6.2002 at about 7.00 or 8.00 p.m., Smt. Richa Sharma started vomiting and suffered from dysentery. The complainant brought Smt. Richa Sharma to the house of the opposite party No. 2 and found that she has gone to Dehradun. Smt. Richa Sharma was taken to the hospital. There was some lady doctor (her name has not been disclosed, during the arguments it came out that she was Dr. Panwar, not a party to this case). In the meantime Dr. Kusum Lata Sagar, opposite party No. 2 came and she found that Smt. Richa Sharma was suffering from diarrhoea. She was admitted in the hospital. On 4.6.2002 Smt. Richa Sharma was shifted to the upper ward. Opposite party No. 4 Dr. Rakesh Bansal checked Smt. Richa Sharma. He prescribed certain medicines, which the complainant brought from outside. At about 3.00 or 4.00 p.m. the complainant informed the Nurse on duty that Smt. Richa Sharma is in critical position. He was asked to go to emergency room, where opposite party No. 3 Dr. Sanjay Kansal was on duty. When the complainant met the opposite party No. 3, he asked who was treating Smt. Richa Sharma. The complainant replied that it was Dr. Rakesh Bansal, opposite party No. 4, then the opposite party No. 3 refused to attend because Smt. Richa Sharma was being treated by Dr. Rakesh Bansal, another doctor, opposite party No. 4. Then the opposite party No. 4 was requisitioned on telephone. Opposite party No. 4 called for some medicines and injections from outside hospital. Because of treatment by opposite party No. 4, Smt. Richa Sharma slept for 2-3 hours. Again when she arose from her sleep, she complained of motions but Dr. Rakesh Bansal told that she is all right. At 9.30 p.m. Smt. Richa Sharma again became critical. When the complainant went to call opposite party No. 4, he refused to come. The complainant also called one Dr. Srivastava from outside. He informed that Smt. Richa Sharma has a brain haemorrhage and there are no chances of survival. Smt. Richa Sharma died on 5.6.2002. Time not disclosed but during arguments it came out that she died at 5.00 p.m. The news of negligence of the doctors and wrong treatment was published in newspaper. On public demand an inquiry was ordered. The complainant attended the inquiry. The inquiry report has been submitted but the complainant was not given the copy of the inquiry report. It is said that due to the negligence of the doctors Smt. Richa Sharma died. On this ground compensation has been claimed.

The complaint has been filed against State of Uttaranchal, opposite party No. 1. Opposite party Nos. 2 to 4 are the attending doctors, who are in service of opposite party No. 1. Opposite party No. 2 is Dr. Kusum Lata Sagar, opposite party No. 3 is Dr. Sanjay Kansal and opposite party No. 4. is Dr. Rakesh Bansal.

IN its written statement, the opposite party No. 1 admitted the posting of the doctors. On the basis of record written statement has been filed and on the basis of record it is admitted that Smt. Richa Sharma was admitted in the hospital on 1.6.2002 at 11.00 p.m. with complaint of pain in the abdomen and bleeding. It was further admitted that she was treated by Dr. Kusum Lata Sagar, opposite party No. 2. It is said that the patient was discharged from the hospital after she has recovered. It is further admitted that Smt. Richa Sharma was again admitted in the hospital on 3.6.2002 at 10.40 p.m. with complaint of vomiting, loose motion and pain in abdomen. She was shifted to the ward on 4.6.2002 at 10.00 a.m. It is admitted that the opposite party No. 4 attended her. It is further pleaded that on 3.6.2002, the patient was not pregnant. It was not disclosed as to what happened to the alleged pregnancy. For the first time on 5.6.2002 it was disclosed at 11.30 a.m. that the patient had undergone MTP in the night of previous Saturday in the same hospital. The examination by Dr. Srivastava is also admitted. It is further admitted that inquiry has been ordered by the opposite party No. 1 and as per report of the INquiry Officer, no negligence has been found on the part of any of the opposite parties. It is said that these inquiry reports are internal documents and are not to be produced in the Commission. It is further pleaded that the complainants themselves are guilty for the death of Smt. Richa Sharma. Dr. Kusum Lata Sagar, opposite party No. 2 in her written statement has alleged that on 1.6.2002, she was on emergency duty from 8.00 p.m. At about 11.00 p.m., Smt. Richa Sharma was admitted with the complaint of stomach ache and excessive bleeding. There was physical examination. The victim was not found pregnant. She was admitted and proper treatment was given and when she was cured, she was discharged on 2.6.2002. It is incorrect to say that the opposite party No. 2 received any fee from the complainant. The production of muscle piece is also incorrect. On 3.6.2002, the opposite party No. 2 was not on duty and she did not examine the victim. The other allegations of the complaint are said to be false and baseless.

IN his written statement, the opposite party No. 3 denied the allegations of the complaint and admitted that he was on emergency duty on 4.6.2002 from 2.00 p.m. to 8.00 p.m. He has not examined the victim, nor he was summoned to examine the victim. In is written statement, the opposite party No. 4 has admitted that Smt. Richa Sharma died of septicaemia on 5.6.2002. He further alleged that on 4.6.2002 at about 10.30 a.m. or 10.45 a.m., he received a call for attending upon Smt. Richa Sharma. He examined her at 10.45 a.m. It is alleged that Dr. R.C.S. Panwar has admitted the patient on 3.6.2002 at 10.30 p.m. as remarked on the bed head ticket that the general condition of the said patient was very low, pulse was feeble and the patient was suffering from severe dehydration. Dr. Panwar prescribed the treatment. At 10.45 a.m. on 4.6.2002, the opposite party No. 4 examined the patient. He also found that the condition of the patient was very critical. The opposite party No. 4 has alleged that he treated the patient but there was no marked improvement in the condition of the patient. It is further pleaded that on 5.6.2002, the mother-in-law of the patient informed that there was MTP of the patient. It is further alleged that there was no negligence on the part of the doctor. On the above pleadings, the parties have produced their evidence. Before examining the evidence and allegations, we will like to say that the admission of the victim Smt. Richa Sharma in the hospital is in two parts. First on 1.6.2002 at 11.00 p.m. This time the admission and treatment was by Dr. Kusum Lata Sagar, opposite party No. 2. It is alleged by Dr. Kusum Lata Sagar that the victim was discharged on 2.6.2002 after she was cured. There is no allegation of the complainant as well that she was not cured.

THE second part of admission in the hospital is on 3.6.2002 at 10.30 p.m. She was admitted by Dr. R.C.S. Panwar. THEre is also allegation that Dr. Kusum Lata Sagar also examined her but Dr. Kusum Lata Sagar has denied this fact. It is alleged that opposite party No. 3. Dr. Sanjay Kansal was summoned but refused to come on the ground that the victim was being treated by Dr. Rakesh Bansal, opposite party No. 4. It means that there was absolutely no examination, treatment or negligence by Dr. Sanjay Kansal. THEn the entire treatment is said to be by opposite party No. 4, Dr. Rakesh Bansal from 4.6.2002 till the time of death of the victim. Some Dr. Beena Rana has also examined the victim but there is absolutely no allegation against her. One Dr. Srivastava has also examined the victim from outside but there is also no allegation against him.

THUS in the first part of treatment, the allegations are against Dr. Kusum Lata Sagar and in the second part of treatment, the allegations are against Dr. Rakesh Bansal. Coming to the evidence of the parties, the bed head ticket of 1.6.2002 has been filed by the opposite party, which has been signed by Dr. Kusum Lata Sagar, opposite party No. 2. In this bed head ticket, it is written that the patient received at 11.10 p.m. on 1.6.2002 with the problem of pain in abdomen and BPV (bleeding per vagina). It is further mentioned that G.C. fair, pulse 80 per minute, blood pressure 90/60, P/A soft. M.L. No. is also mentioned as 3463. The opposite party No. 2 also took the consent of the complainant on 1.6.2002 at 11.15 p.m., in which it is written that there is a lot of pain in the stomach of the patient and he undertook that the treatment of the patient shall be done in the same hospital on his own risk. It means that the condition of the patient was serious, that is why the consent was taken. Then suddenly on 2.6.2002 the patient was discharged from the hospital. It is alleged that she was discharged after she was fully cured. On the same bed ticket discharge on 2.6.2002 is mentioned.

Then the bed head ticket of 3.6.2002 has been filed, in which the disease is mentioned as DVD and septicaemia shock. The patient was admitted on 3.6.2002 at 10.40 p.m. in the hospital. The M.L. No. is 3503. The present complaints have been mentioned as vomiting, loose motion and pain in abdomen. The general condition is mentioned as very low, pulse 120/2 feeble. The treatment advised is also mentioned. It is surprising that the victim was admitted in the hospital on 3.6.2002 at 10.40 p.m. and she was received at 10.00 a.m. on 4.6.2002, the next day. There is nothing on record that after admitting the patient on 3.6.2002 what treatment was given to her till 10.00 a.m. of 4.6.2002. The other details of prescriptions and treatment were also filed by the opposite party including the morning report of 4.6.2002, evening report of 4.6.2002, night report of 4.6.2002, morning report of 5.6.2002 and evening report of 5.6.2002. The victim was previously discharged on 2.6.2002 and she was again admitted in the hospital on 3.6.2002. No fee was charged on the bed head ticket of 3.6.2002, it means that the treatment of the victim was continuing from 1.6.2002, because only once admission fee was charged. Again there is consent of the complainant dated 4.6.2002 at 10.45 a.m., in which it is mentioned that he has been informed that the condition of his wife is very critical. He wants the treatment of his wife in the same hospital at his own risk. From both the consents, it is clear that on the date of first admission in the hospital on 1.6.2002, the patient was serious and she was discharged the very next day without giving any reason and again she was admitted in the hospital the next day on 3.6.2002 and her condition was very serious. There is no evidence on record that the doctor who attended the victim on 3.6.2002 gave any treatment to her in spite of the fact that the condition of the victim was continuously deteriorating, the hospital authorities did not even bother to look after their patient, who was admitted in the hospital for the second time within hours. Even the doctor on duty did not take enough care to advise any test, ultrasound, etc to diagnose the cause of the disease of the patent. On 5.6.2002 the patient died at 5.00 p.m., which is also mentioned in the bed head ticket. It is established fact that the condition of the patient was very serious on the date of admission, i.e., on 3.6.2002. During the treatment the consent of the complainant was also taken on 4.6.2002.

A doctor owes certain duties to patients viz. a duty of care in deciding whether to undertake the case, a duty of care in deciding which treatment to give or a duty of care in administration of that treatment. A breach of any of these duties gives a right of action for negligence to the patient. The practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires. The doctor no doubt has a discretion in choosing treatment, which he proposes to give to the patient and such discretion is relatively ampler in cases of emergency. In our opinion, the discharge of the patient from the hospital on 2.6.2002 was not justified because there is nothing available on record to prove that there was nothing wrong with the patient on the date of discharge. If in the opinion of the doctor, the patient was all right to be discharged, it should have been mentioned in the bed head ticket that everything was O.K. with the patient. The patient was again admitted on 3.6.2002 and there is nothing on record that for about 12 hours what treatment was prescribed to her by the doctor to keep the patient in such critical condition from the time of admission of 3.6.2002 till 10.00 a.m. of 4.6.2002 is not only deficiency in service but is inhumane on the part of the doctor. This is definitely a deficiency in service on the part of the doctors and a breach of duty on their part. This is definitely negligence per se and no further proof is needed. Negligence per se is defined in Black''s Law Dictionary as conduct, whether of action or omission, which may be declared and treated as negligence without any argument or proof as to the particular surrounding circumstances either because it is in violation of a statute or valid municipal ordinance, or because it is so palpably opposed to the dictates of common prudence that it can be said without hesitation or doubt that no careful person would have been guilty of it. As a general rule, the violations of a public duty, enjoined by law for the protection of persons or property, so constitutes. The doctor was definitely guilty of negligence per se. This is a breach of duty by the doctor. It has been held in the ruling reported in II (1996) CPJ 1 (SC), Poonam Verma v. Ashwin Patel and Others, that the breach of duty may be occasioned either by not doing something, which a reasonable man, under a given set of circumstances would do, or, by doing some act, which a reasonable prudent man would not do. So far as persons engaged in medical profession are concerned, it may be stated that every person who enters into the profession, undertakes to bring to the exercise of it, a reasonable degree of care and skill. It is true that a doctor or a surgeon does not undertake that he will positively cure a patient or nor does he undertake to use the highest possible degree of skill, as there may be persons more learned and skilled than himself, but he definitely undertakes to use a faiar, reasonable and competent degree of skill. This implied undertaking constitutes the real test. The test covers the liability of a doctor in respect of his diagnosis, his liability to warn the patient of the risk inherent in the treatment and his liability in respect of the treatent. This is case where the doctor, opposite party No. 4 did not pay attention to the treatment of the victim, who was admitted in the hospital, which is under opposite party No. 1.

ALTHOUGH it was not alleged by the opposite party that the complainant is not a consumer but it was admitted fact as shown in the admission card charges are made in this hospital and even if no charges have been alleged by the opposite parties still in view of the Hon''ble Supreme Court ruling reported in I (1998) CPJ 1 (SC)=III (1998) SLT 684=AIR 1998 Supreme Court 1801, M/s. Spring Meadows Hospital and Another v. Harjol Ahluwalia and Another, in which the Hon''ble Supreme Court has held that the definition of consumer is wide and it includes not only those persons who hires or avails services but also includes beneficiary of such services other than person who hires or avails services. The learned Counsel for the complainant referred the ruling in III (1995) CPJ 1 (SC), Indian Medical Association v. V.P. Shantha and Others, in which the Hon''ble Supreme Court has held: "Medical practitioners, though belonging to the medical profession, are not immune from a claim for damages on the ground of negligence. The fact that they are governed by the Indian Medical Council Act and are subject to the disciplinary control of Medical Council of India and/or State Medical Councils is no solace to the person who has suffered due to their negligence and the right of such person to seek redress is not affected."

It has further been held: "The Government hospitals may not be commercial in that sense but on the overall consideration of the objectives and the scheme of the Act it would not be possible to treat the Government hospitals differently. We are of the view that in such a situation the persons belonging to "poor class" who are provided services free of charge are the beneficiaries of the service, which is hired or availed of by the "paying class."

The learned Counsel for the complainant referred the ruling reported in I (1999) CPJ 43 (NC), Prasanth S. Dhanaka v. Nizam''s Institute of Medical Sciences, in which it has been held: "A person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person when consulted by a patient owes him certain duties, viz. a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give or a duty of care in the administration of that treatment. A breach of any of those duties gives a right of action for negligence to the patient."

In this particular case discharge on 2.6.2002 from the hospital itself does not appear justified. A poor patient given some pain-killer felt relief and she was discharged. The doctor reported that at the time of first admission there was bleeding. It is not said that when she was discharged there was no internal trouble. The private part of the patient was full of blood on 3.6.2002 at the time of admission itself, which shows that there was no cure and Dr. Kusum Lata Sagar must know this, as a doctor that the ailment persisted.

THE learned Counsel for the complainant referred the ruling reported in I (1996) CLT 532 (SC)=AIR 1996 Supreme Court 2377, Achutrao Haribhau Khodwa and Others v. State of Maharashtra and Others, in which the patient was operated in a Govt. Medical Hospital. Mop left in the body of patient. THEre was formation of pus, which eventually led to death of patient. Death due to negligence in hospital was established. Doctrine of res ipsa loquitor clearly applied and the State was held liable to pay damages.

THE learned Counsel for the opposite party Nos. 3 and 4 referred a case decided by us reported in 2004 (2) UC 921, Smt. Kanti Devi v. Dr. S.K. Gupta. This ruling shall not apply to the facts of the present case because when there is negligence per se, there is no further need of any evidence to prove the negligence of the doctor. He also referred the ruling reported in II (2003) CPJ 290=2003 (52) ALR 17 (Consumer), Ashok Kumar Aneja v. Dr. Harish Kohli. This ruling shall also not apply to the facts of the present case because there is no need of any expert evidence when the negligence is per se on the face of it. He further referred the ruling reported in I (2003) CPJ 262, Sukhchain Singh v. Chandigarh Administration through Secretary, Health & Anr., in which he negligence of the doctor in diagnosis or treatment was not proved and the complaint was dismissed but in this particular case there is definite evidence on record that there was negligence on the part of the doctor in treating the patient. He also referred the ruling reported in II (2003) CPJ 90 (NC)=2003 (52) ALR 19 (Consumer), S.K. Sharma v. Dr. Praful B. Desai, in which it has been held that the death was not due to consequence of negligence and there was no material to suggest medical negligence and the complaint was dismissed. In this particular case there is definite material on record to prove the negligence of the doctor. One thing which we are not able to digest is that at the time of admission on 3.6.2002, when the condition of the patient was critical and the doctors at Rishikesh have no intention to attend the patient till 10.00 a.m. of 4.6.2002, why the doctors of Rishikesh did not like not to admit the patient or to shift her to Jolly Grant Medical College only at a distance of about 10 kms. from the Rishikesh Hospital. Otherwise the disease of the patient was not such that only within 3 days, she would have died particularly when the patient was young lady and firstly admitted with ordinary female disease. This definitely speaks of the negligence and deficiency of all the doctors at Rishikesh, particularly those who attended her.

Coming to the negligence of individual doctors, there is negligence of opposite party No. 2 in discharging the patient on 2.6.2002. There is no proof except bare allegation that opposite party No. 3 was called but he did not attend. At least it is admitted fact that he did not examine or treat the patient or was in any way responsible to treat the patient. There is no evidence against opposite party No. 3, Dr. Sanjay Kansal. Opposite party No. 4, Dr. Rakesh Bansal did not attend the patient till 10.00 a.m. of 4.6.2002. He did not get definite opinion from Dr. Beena Rana regarding the pregnancy of the patient. He did not care to refer the said patient to go to Jolly Grant Medical College, a college of high reputation and with ample medical facilities with expert doctors and specialized branches of treatment.

OPPOSITE party No. 1 is the employer of the other opposite parties, doctors in its service. Therefore, the opposite party No. 1 is vicariously liable for the negligence and misconduct of the doctors. The opposite party No. 1 has tried to defend its doctors by not producing the inquiry report. It was argued that the Commission has refused to summon the inquiry report. It is true but non-summoning does not mean that the opposite party No. 1 was asked not to submit the inquiry report. The opposite party No. 1 was totally free to file the inquiry report. The complainant insisted that it be produced. The opposite party No. 1 did not produce in the cover of the order of the Commission. But it is clear that the opposite party No. 1 said that no doctor was found guilty in the inquiry. If it was so it should not have got any hesitation in producing the inquiry report. It was an important piece of evidence for the opposite parties and its non-production will lead to a presumption that had this inquiry report been filed it would have gone against the opposite parties.

THERE is yet another mystery in this case. According to the complainant, the patient was pregnant. He was shown the other day a piece of muscle. The mother of the complainant stated to opposite party No. 4 Dr. Rakesh Bansal that there has been MTP. Dr. Rakesh Bansal directed the lady doctor who did not specifically report whether there was pregnancy or not. If there was, what happened to the pregnancy? The victim died of septicaemia shock. When and how septicaemia developed has not been enquired by any of the doctors. All this shows that there was an underhand dealing with the complainant and Dr. Kusum Lata Sagar. THERE was abortion of the patient at the time of the first admission itself but both the parties have tried to suppress this fact. This is why the opposite parties have also pleaded that the complainant is also guilty of contributory negligence. In the absence of specific case by the parties we are unable give any specific finding but these suspicious circumstances ipso facto lead to the conclusion of deficiency in service of the attending doctors that they did not care to know the actual problem with the patient which resulted in her death. Now the question is of quantum. The complainant has claimed a sum of Rs. 10,00,000/- for compensation. The term ''compensation'', signifies that which is given in recompense, as equivalent rendered damages for loss of injury sustained, the value estimated in money of something, lost or withheld. Under Section 14(1)(d) of the Consumer Protection Act, the opposite party may be directed to pay such amount as compensation to the consumer for any loss or injury suffered by the consumer to the negligence of the opposite party. In a claim for compensation, where it is practically impossible to adduce tangible evidence regarding the actual monetary equivalent of the inconvenience, mental suffering, etc., caused to the complainant, it is the duty of the concerned Redressal Forum, to assess and determine in the light of all the evidence available in the case what amount would reasonably go to compensate the complainant. In this particular case the complainant has lost his wife aged about 24 years and leaving behind the complainant and two minor children. No amount of compensation can meet out the value of a human life but considering the age of the victim, the love and affection from which the complainant and his children have been deprived, in our view the complainant should get a compensation of Rs. 2,50,000/- (Rupees two lacs fifty thousand) along with Rs. 2,000/- as cost of litigation ORDER The complaint is hereby allowed for recovery of Rs. 2,50,000/- (Rupees two lacs fifty thousand only) against the opposite party Nos. 1, 2 and 4 jointly and severally, however the amount of compensation shall be paid and recovered from the opposite party No. 1, the employer of opposite party Nos. 2 and 4. The complaint is hereby dismissed against opposite party No. 3, who shall bear his own costs. The complainant shall also get a sum of Rs. 2,000/- (Rupees two thousand only) as cost of this litigation. The opposite party No. 1 is hereby directed to pay the amount of compensation within 31.1.2005, failing which the complainant shall get interest at this amount of Rs. 2,50,000/- @ 9% per annum from 1.2.2005 till the actual date of payment. Out of this decretal amount, Rs. 1,50,000/- (Rupees one lac fifty thousand only) shall be deposited in the name of the minor children of the complainant in the form of FDRs to be released on attaining their majority. Rs. 50,000/- (Rupees fifty thousand only) shall be paid to the complainant as his part of compensation and Rs. 50,000/- (Rupees fifty thousand only) for the present upkeep of the children. Complaint allowed.