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Judgment
Challenge in this Revision Petition under Section 21(b) of the Consumer Protection Act, 1986 (for short "the Act") is to the order dated 25.11.2013 passed by the State Consumer Disputes Redressal Commission, Delhi (for short "the State Commission") in FA No.429 of 2007. By the impugned order, the State Commission has allowed the Appeal preferred by the Complainant, set aside the order of the DCDRF-II Udyog Sadan, C-22 & 23, Institutional Area Behind Qutab Hotel, New Delhi( for short "the District Forum") and directed Sarvodaya Hospital & Trauma Centre to pay an amount of 2,00,000/- as compensation with costs of 20,000/-. The case against Safdarjung Hospital has been dismissed. The Insurance Company was directed to pay the decretal amount within 30 days, failing which the amount shall attract interest @ 9% p.a. from the date of the order till the date of actual payment.
For the sake of convenience, the Petitioner herein, namely, Sarvodaya Hospital & Trauma Center is referred to as "First Opposite Party Hospital" and Safdarjung Hospital as "Second Opposite Party Hospital".
The facts material to the case are that the Complainant had taken his pregnant wife for treatment to the First Opposite Party Hospital as he was attracted by its advertisement that it was a 25 bedded Hospital having the facility of Nursery ICU. On 09.03.2004, at about 8 a.m., the Complainant''s wife delivered a male baby prematurely. The baby required facilities of Nursery ICU. At this juncture, the First Opposite Party Hospital informed the Complainant that they did not have such a facility and referred the baby to the Second Opposite Party Hospital.
It was averred that a Maruti van was arranged and the mother and the child were taken around 12 noon to Second Opposite Party Hospital where the baby was taken to ward no.20. The attending Doctor of ward No.20 endorsed on the OPD Card "Nursery facility not available so not willing to admit". The Complainant stated that despite having Nursery ICU facility for babies aged upto four weeks, with the necessary ventilators, this was not made available to the Complainant''s baby who was finally admitted into general ward No.18 which was not meant for prematurely born babies. It was pleaded that the baby had acquired infection in this ward as it was like a general ICU with all types of patients of every age with different kind of diseases being admitted. On account of this, the infection in the Baby had multiplied and consequently he expired on 25.04.2004 due to negligence of both the Opposite Parties.
Hence, the Complainant approached the District Forum seeking direction to the Opposite Parties to refund the amount spent towards medical expenses, pay compensation of 19,00,000/- for loss of child, mental agony and harassment, and costs of 22,000/-.
The First Opposite Party Hospital filed its Written Version denying all the allegations made by the Complainant and stated that the patient was under the treatment of the gynaecologist and visited the Hospital during the antenatal period on 29.11.2003, 17.01.2004 and on 07.02.2004 with a bad obstetric history of two pregnancies in the past, one of which resulted in delivery of a dead baby. During the third antenatal visit, the requisite investigations and instructions were given to the patient as her expected date of delivery was 28.04.2004. While so, on 09.03.2004 at about 5 a.m., the patient was brought to the First Opposite Party Hospital in a critical and life threatening emergency situation, where the life of both the pregnant mother as well as her unborn baby was at jeopardy. After examination, it was revealed that the patient was brought to the Hospital in an active stage of labour with history of leakage prevalent since last seven days and on local examination, it was found that the membrane was already ruptured, with the cord lying outside the vulva and the baby in an abnormal position of Breach presentation. It was diagnosed as a case of G 3 (third gravida), premature delivery (7 1/2 months pregnancy), leakage p/v of seven days, umbilical cord prolapse and breach presentation with high chances of the unborn child getting asphyxiated.
It was averred that as the Hospital had minimum facilities to deal with emergency cases, except the Nursery ICU (which was still in the developing phase), the Complainant was advised to shift the patient to the nearby GTB Hospital but the Complainant insisted that the same gynaechologist should conduct the delivery. In the interest of the patient and the unborn baby, it was decided not to waste any valuable time and in the presence of an anesthetist, the delivery was conducted. The Paediatrician was called to examine the unborn baby and explain the risks to the Complainant. An informed expressed consent was also taken from the Complainant. A male baby weighing 1.28kg was born with moderate birth asphyxia, and it was advised that the baby should be immediately shifted to Nursery ICU of a nearby tertiary care hospital, preferably to GTB Hospital. But the Complainant insisted that the infant be shifted to the second Opposite Party Hospital. It was averred that the doctors of the First Opposite Party Hospital exercised reasonable knowledge & skill in treating the mother and the infant and that no negligence can be attributed to them.
The Second Opposite Party Hospital filed its Written Version and also the affidavit of Dr. Agarwal stating that there was nothing like Nursery ICU facility at their Hospital and that all the facilities in Ward No.20 are similar to that of a Nursery and that the baby was provided with best possible treatment free of charge from 09.03.2004 till 25.04.2004. It was pleaded that there were two Nurseries which admit the babies born at Safdurjung Hospital and its satellite centers only. The number of babies born at Safdurjung Hospital was very high, almost 60-70 per day and it was impossible to accommodate the babies born outside the Hospital. By admitting out born babies, there were fair chances of introducing community acquired infection inside the Nursery which would worsen the bacterial load of the Nursery. It is the policy of the Hospital to admit ''out born babies'' to the Ward directly and not to Nurseries. Hence the baby was sent to Ward No.20 directly. It was pleaded that the baby had infection even before he was brought to the Hospital and that the word ''sepsis'' had been noted in the Discharge Card. The baby was brought in a high risk condition with premature sepsis, bronchopneumonia and respiratory insufficiency. The baby was in a critical condition at the time of admission and despite extensive efforts by the Second Opposite Party Hospital in providing best treatment for more than 1 1/2 months, the baby could not survive and hence no negligence can be attributed to them.
Based on the evidence adduced, the District Forum dismissed the Complaint observing that the First Opposite party Hospital had operated upon the patient to save her life and that of the baby and that the Complaint was not maintainable against the Second Opposite party Hospital as the entire treatment was rendered free of cost.
Aggrieved by the said order, the Complainant preferred an Appeal before the State Commission. The State Commission set aside the order of the District Forum and allowed the Complaint against the First Opposite party Hospital. Though there was a finding of negligence against the Second Opposite party Hospital, the State Commission observed that the treatment was rendered free of charge and therefore, the Complaint was not maintainable against the Second Opposite party Hospital.
Dissatisfied with the said order, the First Opposite party Hospital has preferred this Revision Petition.
Learned Counsel appearing for the Petitioner submitted that the patient had approached the Hospital in a high risk condition with a ruptured membrane; the umbilical cord lying outside the vulva; the baby in an abnormal position with breach presentation with history of leaking p/v since last seven days. Since the patient was in this high risk condition, a request was made to the Complainant to shift the patient to a nearby Hospital. It was only on their insistence that the patient was operated upon by the Gynecologist to save the life of the mother and the unborn child. The learned Counsel contended that the facility of Nursery ICU was never promised to the Complainant and that the 25 bedded Hospital was equipped with an ICU but not with a fully equipped Nursery.
The Counsel representing Safdarjung Hospital submitted that there was nothing like a Nursery ICU and that all the precautions required for a newly born baby were taken in Ward No.18 and the baby was directly admitted to this Ward which had all the necessary Nursery facilities as out born babies were not admitted into the main Nursery which was meant only for babies born in the said Hospital. The baby was already in a condition of sepsis and was treated for 1 1/2 months free of cost and that the Complaint is not maintainable against them.
The Complainant, who was present in person along with his Counsel, submitted that it was only because of the promise of Nursery facility at the First Opposite party Hospital that the Complainant and the patient had taken all pre-natal treatment at the subject Hospital. The baby was born pre-mature and required minimum Nursery facility which the First Opposite party Hospital though claimed in the OPD card that it was so equipped, referred them to another Hospital stating that such a facility was not available. Precious time was lost which effected the condition of the baby. It was vehemently denied by the Complainant that the Gynaechologist of the First Opposite party Hospital had referred them to GTB Hospital prior to the delivery and submitted that it was only after the baby was born, that the reference was made to Safdarjung Hospital. He submitted that the State Commission ought to have made the second Opposite Party also liable as they had not provided Nursery facilities to the infant who was in a critical condition.
The brief point which falls for consideration is whether there was any negligence on the part of the First Opposite Party Hospital in the line of treatment rendered to the patient?
In the Prescription, dated 29.11.2003, issued by the First Opposite party Hospital, the expected date of delivery is given as 28.04.2004 and thereafter, the pre-natal check ups were done on 17.01.2004 and 07.02.2004, on which date the breach was noted. A consent was also taken for the Cesarean Section stating that the patient was in a high risk condition. The Complainant submitted that all the prescriptions were fabricated. Even if that is so, the progress notes filed before us also clearly show that the patient was referred to GTB Hospital urgently and that was refused by the Complainant. In the light of the detailed progress notes and the prescription dated 09.03.2004, the referral to GTB Hospital and the refusal by the Complainant is quite clear. The consent taken from the patient reads as follows: " My patient had leaking p/v since 02.03.04. Patient cord coming out from today morning. We are already informed that the weight of baby is very low and time of maturity is not completed (presently 30wks) and no guarantee that baby will survive. If baby survive then he should be admitted in Nursery. Doctor tells us that presently completed pregnancy time is 30wks and baby''s lungs not developed properly. Inspite of this we are ready for operation (L.S.C.S.) and tells to doctors to try her level best."
The afore-stated consent falls within the meaning of ''Informed Consent'' as explained by the Hon''ble Apex court in (Samira Kohli v. Prabha Manchanda (Dr.), (2008) 2 SCC 1) .
The Discharge Card, which the Complainant is relying upon, states that it is a 25 bedded Hospital with Nursery and ICU. It is the Complainant''s case that it is only because of the promised facility that he had admitted his wife in this Hospital. It is not in dispute that the patient was undergoing pre-natal checkups during the pregnancy period from the First Opposite party Hospital and it is not as if the Complainant had visited the Hospital for the very first time. Moreover, the Discharge Card does not show Nursery ICU but infact says Nursery and ICU. An affidavit regarding facilities available was also filed by the Director of the Petitioner Hospital. In their affidavit, the Petitioner Hospital stated that because they did not have necessary intensive Care Unit in tertiary care facilities to admit the pre-mature born child for a longer period treatment, the baby was referred to a high management Hospital. Therefore, the contention of the Complainant that precious time was lost because the promised Nursery facility was not made available to them is unsustainable, especially in the light of the consent given by the Complainants and also the reference which the gynecologist had made to the tertiary hospital i.e. GTB Hospital, again clearly recorded in the treatment notes.
A brief perusal of the prescription shows that the patient was admitted in the First Opposite party Hospital in a precarious condition of umbilical cord collapsing through the vagina; a gross risk of survival of the baby inside the womb; the risk of the blood supply being cut off and high chances of the baby being born asphyxiated. The progress notes show that all due care and caution was taken which was required under the standard practice of normal medical parlance by the First Opposite party Hospital in delivering the baby through Caesarian Section and hence, no deficiency can be attributed to the first Opposite Party Hospital or its Doctors, as there is no documentary evidence suggesting any kind of negligence in the line of treatment rendered to the patient. The baby was rightly referred to a higher management Hospital, in the absence of the necessary nursery facilities required to handle a premature baby. We hold accordingly.
Questioning the correctness of the decision of the State Commission in exonerating the second Opposite Party Hospital, Learned Counsel for the Petitioner drew our attention to the findings in the impugned order, relating to the conduct of both the Opposite parties. These are as follows: "In this case, it is undisputed that necessary prompt medical care/facility was not available in Respondent-1 Hospital yet they admitted the patient for delivery of a premature baby. It should have advised the complainant well in advance and also at the time of admission to take the patient for delivery to a Hospital where Nursery ICU facility or Nursery facility was available. But out of greed they admitted the complainant''s wife to deliver a premature 7 and 1/2 months old, 1.28 kgs weight with undeveloped lungs baby and then referred the baby to another Hospital with Nursery facility. The Respondent-1 thus deprived the newly born baby with immediate necessary facility badly need which complicated the matter further. This in our considered view amount to gross medical negligence per se on the part of Respondent-1.
As regard Respondent-2, as per evidence available on record, it has Nursery facility (2 Nos.) with ventilators for use upto the babies of 4 weeks. But the same was not made available arbitrarily and arrogantly on flimsy grounds. The newly born baby who badly needed Nursery facility was admitted to ward No. 20, then to ward No. 18 and lastly in General ICU of Safdarjung Hospital not meant for such premature born babies on the ground of out born baby. There has not been specific denial on the part of the Respondent-2 that there was no vacancy or availability of bed in Nursery on 9.3.2004 around noon or on any subsequent time/date. Only an arbitrary policy of the Hospital has been cited that only babies born in Safdarjung Hospital and its Satellite centers were admitted due to fear of infection in Nurseries. Thus, badly needed facility was denied on the basis of arbitrary, arrogant and discriminatory policy of the Hospital, which is totally unacceptable to us. We are, therefore, convinced that both Respondent-1 & Respondent-2 Hospitals were guilty of gross medical negligence.
It is, therefore, manifest that the State Commission found both the Opposite Parties deficient in rendering service to the Complainant. However, while holding only the First Opposite Party Hospital liable to compensate the Complainant, the State Commission has come to the conclusion that since the second Opposite Party Hospital had provided free treatment for the deceased child, in light of the decision of the Hon''ble Supreme Court in Indian Medical Association vs. V.P. Shantha, 1995 SCC (6) 651 , no liability could be fastened on the said Party.
Learned Counsel appearing for the Petitioner as also the Complainant submitted that decision of the State Commission on the point is also vitiated as it has failed to appreciate the ratio of the said decision.
We find substance in the contentions. Dealing specifically with the question whether the hospitals, particularly the government hospitals, where charges are required to be paid by persons availing of services but certain categories of persons, who cannot afford to pay are rendered service free of charges, render service falling with the ambit of the expression "service" as defined in Section 2(1)(o) of the Act, the Supreme Court, while terming the said situation as category No. (iii), held as follows: "Service rendered at a Government hospital/health centre/dispensary where services are rendered on payment of charges and also rendered free of charge to other persons availing such services would fall within the ambit of the expression ''service'' as defined in Section 2(1) (o) of the Act irrespective of the fact that the service is rendered free of charge to persons who do not pay for such service. Free service would also be "service" and the recipient a "consumer" under the Act".
In the light of the afore-extracted authoritative pronouncement, the decision of the State Commission, granting immunity to the Second Opposite Party Hospital viz. Safdarjung Hospital, is unsustainable. It is set aside accordingly and the Revision Petition succeeds to that extent.
Having arrived at the said conclusion, an ancillary question, which would require consideration is whether in the absence of any Revision Petition by the Complainant against the exoneration of Safdarjung Hospital, the compensation awarded by the State Commission against the First Opposite Party Hospital could be fastened on the said hospital. In our view, having regard to the fact that even in a post amended Code of Civil Procedure scenario, which is otherwise, not applicable in its full rigor, the Complainant has a right to challenge the finding, adverse to him in this Revision Petition, preferred by one of the Opposite Parties in the Complaint. The fact that the finding of gross medical negligence against the Safdarjung Hospital having attained finality, in as much as, the said hospital has not questioned the validity of the said finding, it would neither be expedient nor fair to the Complainant, who has been fighting for justice for over a decade, to remand the said issue for fresh consideration by the State Commission, more so, when the immunity from the liability, already quantified, had been granted on a misconception of law by the Fora below.
Consequently, while allowing the Revision Petition to the extent it seeks to hold the First Opposite Party guilty of medical negligence, and directs it to pay compensation to the Complainant, in order to do complete justice in the matter, we direct that since the second Opposite Party Hospital has also been held to be grossly guilty of medical negligence, the compensation awarded ( 2,00,000/-) by the State Commission in favour of the Complainant, shall be paid by the said Hospital, viz., Safdarjung Hospital to the Complainant within four weeks of the date of receipt of a copy of this order, failing which, the said amount shall carry interest @9% p.a. from the date of the filing of the Complaint, till actual realization. However, on the facts and in the circumstances of the case, there will be no order as to costs.