St.Stephens Hospital vs Johri Mal

ST.STephens Hospital (hereinafter referred to as the Petitioner) have filed the present revision petition against the order of the STate Consumer Disputes Redressal Commission, Delhi (hereinafter referred to the as the STate Commission) which rejected its appeal in favour of Johri Mal(hereinafter referred to the as the Respondent) and three others (i.e. his son and two daughters) who were the original complainants before the District Forum.

THE facts of the case according to the Respondent are that his wife, Smt.Vimla Devi was admitted to the Petitioner/Hospital on 03.01.1997 for the treatment of arthritis upto 14.01.1997 during which period her spinal chord was broken on account of the negligence of the Petitioners doctors and staff. THE Respondent, therefore, got his wife discharged from the hospital on 14.01.1997 and lodged a claim for damages/compensation on account of the above negligence. However, the Petitioner assured him of better treatment and, therefore, he agreed to continue her treatment upto 27.05.1997 when she was discharged by the Petitioner on the grounds that her condition had improved. Petitioner prescribed visits to the outpatient department and Respondent, therefore, continued to take his wife to the outpatient department till 08.07.1999 when she was re-admitted in the hospital. On 10.07.1999 she fell down and the knee joint of her right leg was broken because of the negligence of the staff of the Petitioner. She was finally discharged on 17.07.1999 in a critical condition and she expired on 18.01.2001 because of the consequences of the medical negligence. Prior to her death, on 29.08.2000, Smt. Vimla Devi had sent a legal notice to the Petitioner to pay a sum of Rs.4,41,000/- on various grounds but there was no response to this notice. After her death, the Respondent along with his three children filed a complaint on 21.04.2001 before the District Forum claiming damages from the Petitioner to the tune of Rs.4,91,000/- with interest @ 18% from the date of filing the complaint till realization on grounds of medical negligence and deficiency in service. THE Petitioner in its reply denied these allegations and stated that the facts about the medical condition of the Respondents wife have been totally misrepresented by Respondents. According to the Petitioner, Smt. Vimla Devi was admitted to the hospital on 03.01.1997 complaining of severe back pain with difficulty in passing urine and stool. She was diagnosed to be suffering from Ankylosing Spondylitis with chronic fracture of the second and third vertebra of the lumbar spine as well as weakness of both lower limbs. Her condition was further compromised because of high blood pressure and derangement of liver functions. Thus, the allegation that her spine was fractured on account of the negligence of the Petitioner is totally incorrect. It was already fractured at the time of admission because of Ankylosing Spondylitis and Osteoporosis. Her serious condition was explained to the Respondents. A plaster jacket was given to her on 21.01.1997 and later a spinal brace was installed on 20.04.1997 because of which she could sit up with support and by 07.05.1997 she was able to stand on a tilt table and also sit in a wheelchair. In view of the progress made by her she was discharged from the hospital on 26.05.1997. THEreafter on 08.07.1999, she was again admitted with a complaint of backache and on 10.07.1999 she fell from the bed and sustained a fracture on the lower portion of the femur. THE fall took place despite the fact that an attendant (Respondent) was present with her. This was a freak accident which even her attendant could not prevent. THE Petitioner cannot be blamed for this. THE District Forum after hearing both parties and considering the evidence on record which included voluminous medical documents produced by the Petitioner-hospital in respect of the condition and treatment of the Respondents wife concluded that the Respondent had not been able to make out a case of deficiency in service or negligence in respect of the treatment of his wife and, therefore, dismissed it with no order as to costs. THE relevant part of the order is reproduced below: We have heard both the parties and have also gone through the record of the case. So far as deficiency of service by respondent when wife of the complainant was in the respondents hospital from 03.01.1997 to 27.05.1997 is concerned, said claim is barred by provision of Section 24 A of Consumer Protection Act as complaint is filed more than two years after cause of action arose. There is also no evidence that in that period there was any negligence of respondent in the treatment of wife of complainant. Wife of the complainant remained in the hospital of the respondent again from 08.07.1999 to 17.07.1999 and there is no evidence of deficiency of service in her treatment in any way. It is, however, admitted to respondent that on 10.07.1999 when wife of the complainant was in Physical Medicine ward she fell down from the bed and sustained a fracture in her leg. According to respondent where wife of complainant was being kept every person was allowed to meet with patient and this fact is admitted by complainant in his additional affidavit dated 22.08.2001 on filed. Respondent has explained that on date of fall from the bed there were 13 patients in the said ward and 3 staff Nurses and one nurse-air meson duty. Respondent has filed a copy of the report of High Powered Committee on Nursing and Nursing Profession constituted by Government of India and in the report certain norms for Hospital Nursing services for urban areas have been prescribed and according to the said report ratio of Staff Nurses and patient is 1:9 beds and thus according to respondent recommendation of above High Powered Committee were fully followed by respondent. Fall from the bed of wife of complainant could be because of the negligence of the patient or could be accidental. We accept the contention of the respondent that since wife of the complainant was having her husband complainant as her attendant at her bed side, fall could be freak accident. It can not be said that it was due to lack of care on the part of respondent hospital. We, therefore, hold that fall of wife of the complainant from her bed on 10.07.99 when she was in the respondents hospital can not be said to be the result of deficiency of service or negligence of respondent hospital or its staff or doctors as stated above.

Aggrieved by this order, Respondents filed an appeal before the State Commission which set aside the impugned order and remanded the case to the District Forum on the grounds that District Forum had not gone into the aspect of medical negligence when she was admitted in 1997 because of the complaint being barred by limitation in as much as the wife of the Respondent was discharged in 1997 whereas the complaint of medical negligence was filed in the year 2001. The operative part of the order of the State Commission is reproduced: The perusal of the impugned order shows that the medical negligence in respect of the faulty installation of the spinal brace was not taken cognizance of because of being barred by the limitation inasmuch as that the appellant was discharged on 27.05.1997 whereas the complaint of medical negligence was filed in the year 2001. The medical record shows that the complainant was being regularly examined and checked up by the respondent-hospital after her discharge of treatment of spinal brace till the date when she was admitted on 8.7.99. Thus, in our view, the dismissal of the complaint on account of being barred by limitation was not justified as in such type of cases, the cause of action is of subsisting nature and continues till the last date of treatment by the hospital of the disease for which the patient was admitted and operated. In the result, we allow the appeal, set aside the impugned order and send the matter back to the District Forum for deciding it afresh on merits by taking into considerations the allegations of medical negligence with regard to the alleged faulty installation of the spinal brace.

THE present revision petition has been filed by the Petitioner against this order of the State Commission on the grounds that while the District Forum had raised the issue of limitation, it also examined the case on merits and dismissed the same. THErefore, the finding of the State Commission that the case was dismissed without going into the merits by the District Forum is erroneous. Mr.Abhishek Birthray, proxy counsel for Shri Rajiv Sharma, Advocate was present on behalf of the Petitioner. Neither the Respondents nor their counsel was present. In fact, when the case first came up before this Commission in 2007 and the Respondents could not be served because the notice issued to them was returned with the postal remark left nor could they be served through dasti, permission for substituted service on Respondent was given to the Petitioner through publication in two newspapers i.e. The Hindustan Times (English) and Hindustan Times (Hindi). However, even after completion of this entire process and orders for proceeding with the case ex parte on 09.08.2010, none has appeared on their behalf.

COUNSEL for Petitioner in his oral submission reiterated that as concluded by the District Forum based on strong documentary evidence and medical literature filed before it, that there was no deficiency in service or medical negligence on the part of the Petitioner. She was given proper treatment and care in 1997 and again when she was readmitted in 1999. Regarding her fall from the bed in 1999 resulting in a fracture it was pointed out that this was a freak accident which even her husband who was by her bedside could not prevent and despite her being provided with a standard size bed with railings. Thus, the Petitioner cannot be held responsible for this accident. We have heard learned counsel for Petitioner and have carefully considered the evidence on record including the medical history of the patient which details the treatment given to her. We have also perused the medical literature produced before the District Forum in respect of Ankylosing Spondylitis from which the Respondents spouse was suffering. It is very clear form these records that the Respondents wife was admitted for a serious medical condition and not merely for the treatment of arthritis as contended by the Respondent. It is also clear from a reading of the order of the District Forum that the case was decided on merits and was not dismissed merely on the grounds of limitation. The conclusion of the District Forum backed by documentary evidence including as stated earlier the medical history sheet as well as affidavits of the specialist who treated her clearly indicates that there was no negligence on the part of the Petitioner in the treatment of Respondents wife. The District forum has further reached a finding of fact that her falling from the bed and sustaining a fracture in the year 1999 was an accident and could in no way be attributed to medical negligence or lack of care by the Petitioner. Based on these facts District Forum reached a clear conclusion that the Petitioner could not be held guilty of deficiency in service or negligence and therefore, dismissed the case. We are in agreement with the order of the District Forum and restore the same. The order of the State Commission which is erroneous is set aside. The revision petition is allowed with no order as to costs.