SARAN HOSPITAL AND NURSING HOME vs PALWINDER SINGH

APPELLANTS were the opposite parties before the State Commission, where the respondent Nos. 1-4 have filed complaint alleging medical negligence on the part of the appellants and respondent Nos. 5 to 7.

THE facts leading to filing the complaint were that the respondent No. 2 Mrs. Jasbir Kaur on becoming pregnant approached the appellant No. 2 Dr. Devinder Kaur and was admitted on 20.1.1999 in the first appellant Hospital. At about 2.58 p.m. and 3.10 p.m. two male children (3rd and 4th respondents) were born, each having a weight of 2800 gms. THE delivery was normal, but as per the respondent Nos. 1-4 /complainants, they were told, that the children are having mild jaundice, and in these circumstances the newly born children need to be kept in an incubator in order to cure jaundice. It was the case of the complainant that the children are kept in incubator in cases of birth of premature child, which was not the case here. It was further alleged that on account of temperature in the incubator being kept high, an irreparable physical damage was caused to the two newly born children. When the relations of the children showed the damage caused to the infant children, the appellant No. 2 in order to save her skin from any liability, referred the case to respondent No. 5, i.e.. Christian Medical College, Ludhiana (hereinafter referred to as CMC), where, as per the complainant, they were diagnosed with having ''extensive burn injuries'' for which blood transfusion had to be resorted to. THE left hand finger of the 3rd respondent and right hand finger of 4th respondent developed gangrene, which needed debridement and the children also had fever. THE fingers of the infants also started falling of. It was the case of the respondent Nos. 1-4/ complainants that the damage to the fingers of respondent Nos. 3 and 4 were caused on account of medical negligence on the part of the appellants themselves. It is in these circumstances, alleging a case of medical negligence, a complaint was filed before the State Commission, in all, praying for a compensation of Rs. 19 lakh. THE matter was contested by the appellants as also by the respondent Nos. 5 to 7. THE parties led their evidence by way of evidence and the deponents were also cross-examined. THE matter was heard at length by the State Commission who after hearing the parties and perusal of material on record, held the appellants medically negligent and directed them to deposit in the form of fixed deposit Rs. 7 lakh each in the names of respondents/complainant Nos. 3 and 4 as they are minor children till they attain the age of 18 years. It was further directed that the parents be nominated as nominees in both the FDRs. THE respondent Nos. l and 2 were entitled to refund of expenditure to the tune of Rs. 82,178 incurred on the treatment of the children along with an amount of Rs. 2 lakh awarded as compensation for mental agony and harassment, along with cost of Rs. 10,000. Aggrieved by this order, this appeal has been filed before us. We heard the learned Counsel for both the parties at considerable length and perused the material on record. The basic facts of the delivery of healthy children weighing 2800 gm. each is not in dispute. As rightly presented by the learned Counsel for the appellants, the controversy is narrow and limited and it relates to whether children were kept in the ''incubator'' where on account of high temperature the children lost their fingers? We have seen the material on record. There is no disputing the fact that there were burn injuries on the body of the two infant children, i.e.. respondent Nos. 3 and 4 before us. It is the case of the appellants that this was caused by a ''room heater'' used by the respondent Nos. 1 to 4 and they continued to use this room heater despite advice against its use by the appellants.

It is an admitted position that in the referral paper through which the infants were referred to CMC, there is not even remote mention of any burn injuries. We have the report from the CMC in respect of both the children and final diagnoses in both the cases is "extensive burns" and septicaemia (appearing at pages 64 and 69 of the paper book. Hence there is no disputing the fact that there were extensive burns on the bodies of the newly borns, resulting in septicaemia, gangrene and its concomitant effects. Thus, the only question, which needs to be gone into is as to how this "extensive burn" was caused?

WHILE it is the case of the appellants that ''burns'', were caused by the ''room-heater'', on the other hand, it is the case of the respondent Nos. 1-4 that it was caused by the high temperature in the incubator where both the infants were kept. We have seen the evidence led by the parties and especially the cross-examination. In our view, to clinch this point one way or the other, the cross-examination of the second appellant assumes importance as she was the treating doctor in the first appellant Hospital. The relevant question and answers on the point at issue (pages 144-145 of the paper book) are reproduced below : "Q. In para 13 of your affidavit Ex.R you have stated that blisters on the body occurred not due to burn injuries. Is it correct? A. Not correct. Confronted Ex. R para 13 portion A to A, where it is written that thus there is no question of babies suffering from any burn injuries. Q. How do you explain this? How do you explain the contradiction between your statement before the Court and what you have stated in your affidavit Ex. R portion A to A1? (The witness remains mum for few minutes and is unable to explain the contradiction. She is allowed two minutes more to explain the contradiction). As. I have stated in my affidavit in portion A to Al has written in relation to the burns due to incubator. It is correct that I referred the baby to CMC. (Further cross-examination deferred) 6.6.2000 Cross examination of Dr. Devinder Kaur continuing : Q. It is correct that one of the babies developed septicaemia in CMC Hospital and not in your Nursing Home. A. Septicaemia did not develop in my hospital. . It is incorrect to suggest that the complainants did not bring the electric heaters in the Nursing Home. It is incorrect to suggest that I have charged Rs. 6,000 for the delivery of the children as well as charges of the room. I have charged Rs. 1,700 and the bill is attached with the reply. We maintain the register for charging the fee etc. in our Nursing Home. It is incorrect to suggest that I ever suggested the attendants of the children to be kept in the incubator. Q. In para 9 of your affidavit, you have stated that the blister- and blueness of the skin of the limb occurred due to septicaemia. It is correct. A. I do not remember It is for the last about 6 years that I have kept the incubator in my Nursing Home. We have the Medical Officer in our Nursing Home. Medical Officer is also a Specialist Physician. Q. Are the signature encircled R-3/1 on the baby card are your signatures? (Ex. R-3) A. Yes, these, are my signatures. It is incorrect to suggest that burn injuries on the babies were caused by excessive heat by keeping them in incubator."

(Emphasis supplied) In our view the answer to the first question produced above clinches the issue when the deduction is quite clear that blisters on the body of the baby occurred due to burn injuries and subsequently, if we see the conduct of the appellant, it leaves much to be desired. Finally when the second appellant answers, "I have stated in my affidavit in portion A to Al is wrong in relation to the burn due to incubator." The statement A to Al appearing at page 106 of the paper book which is the affidavit filed by the second respondent by way of evidence before the State Commission reads as follows : "Thus, there is no question of babies suffering from any burn injuries."

THE very fact that this statement is contradicted in the cross-examination of the second respondent as reproduced earlier as also the fact that her conduct at the time of cross-examination left much to be desired, duly supplemented by the fact that in the referral slip to the CMC there is no mention of the child having burn injuries, goes to show that there is a deliberate and conscious effort on the part of the second appellant to conceal the fact of the children having burn injuries while still with them. We also see in her cross-examination when asked "In Para 9 of your affidavit you have stated blisters and blueness of the skin of the limb occurred due to septicaemia. It is correct?" Answer is, "I do not remember". We are unable to appreciate this type of selected amnesia on the part of the doctor especially when we see that she had access to all the material record of her hospital. We also see the cross-examination of the respondent Nos. 1 and 2 as also of Mr. Gulzar Singh, on which the State Commission has relied and we find that the appellants have not be able to prove that the babies were not kept in incubator and injuries were caused by heater. The cross-examination of Dr. Jogesh Chatwal of CMC, who states that "when the children were brought they had burns." and goes on to add is, "there is a possibility of burns caused by room heater but he is not sure" and his further cross-examination (page 141 of paper-book) does not help the appellants for the simple reason that he is unsure and uncertain about any and every thing. In the aforementioned circumstances we find that the appellants have been medically negligent in treating the respondent Nos. 3 and 4 resulting in falling of fingers from one hand each of the infants.

AS far as the reliefs granted by the State Commission are concerned, we see that as per material brought on record by the respondents 1-4, from CMC is clear, that in respect of each child, cost of treatment would be Rs. 1.5 lakh or more, and for ''micro surgical reconstruction of the thumb and fingers'' could be attempted after 11 years for which present cost is Rs. 3.5 lakh and which could be more when it is actually done. Since expenditure already incurred by them at the appellant Hospital as also with the CMC has been directed to be paid in full Rs. 7 lakh granted in respect of each of the child appears to be high, it is reduced to Rs. 5 lakh in case of each child. We are doing so for the simple reason that if this amount is kept in FD, after 10 years it would earn enough interest to take care of the micro surgical reconstruction of the thumb and fingers of the children. The amount of Rs. 2 lakh awarded as compensation also appears to be on the high side, which we reduced to Rs. 1 lakh. The appeal is allowed only in above terms and orders of the State Commission stand modified accordingly.

THE above payment shall be made by the appellants after catering for Rs. 1 lakh which is already paid, within a period of 6 weeks from the date of passing of the order. Appellant Nos. 2 and 3 will be free to prefer and get their claim settled in terms of present insurance policy obtained from the 7th respondent Insurance Company. Ordered accordingly.