UNITED INDIA INSURANCE CO LTD vs GOVIND BALLABH KAPRI

-COMPLAINANT Shri Govind Ballabh Kapri filed Consumer Complaint No. 204 of 2000 before District Forum, Udham Singh Nagar with a prayer for an award of compensation of Rs. 2,00,000 on the allegations that in his surgical operation of prostate gland on 4. 8. 2000 by opposite party No. 2 Dr. Ajay Chaudhary in Guru Ram Dass Hospital and Maternity Centre, Khatima, District Udham Singh Nagar of opposite party No. 1, made medical negligence and deficiency in service, resulting which faecal matter started discharging from the urinary track by reason of common passage. Opposite party No. 3 - United India Insurance Co. Ltd. , Branch Khatima was impleaded in view of medical officer having been issued Professional Indemnity Insurance Cover for insured sum of Rs. 8,00,000 for the period from 3. 8. 2000 to 2. 8. 2001. On account of the abnormality caused as a result of the operation, complainant was referred, for management of the abnormality and further specialized treatment, to Shekhar Hospital (P) Ltd. , Lucknow, the same day, i. e. , 4. 8. 2000, where complainant had his treatment for correction of the abnormality till 11. 8. 2000 and was thereafter discharged after giving advice on post-operative care and required dressing of the wounds. According to the complainant, the surgical operation performed by opposite party No. 2 was unsuccessful and whereas, opposite party No. 2 claimed that the complainant did not heed the advice to take the prescribed medicines, resulting which complainant''s condition deteriorated and has to be referred to Lucknow for further management and treatment.

OPPOSITE party No. 1 pleaded that he has nothing to do with the surgical operation performed in his hospital except that he had merely been paid the rent of the room in the hospital and expenses for various facilities provided to the complainant in connection with the surgical operation performed by opposite party No. 2. On this plea, opposite party No. 1 wanted him to be absolved of his liability to pay any compensation. Alternatively, it was pleaded that there being Professional Indemnity Insurance Cover of the medical officer, who performed the operation, the liability, if any, to pay the compensation will be that of the Insurance Company. The District Forum heard the arguments of the learned Counsel for the parties and on careful perusal of the material on record and appreciation of the same, accepted the contention of the complainant that there has been medical negligence and deficiency in service in the performance of the surgical operation of his prostate gland by opposite party No. 2 - Dr. Ajay Chaudhary and held him entitled to lump sum compensation of Rs. 1,00,000. In view of the insurance policy, Insurance Company and opposite party No. 1, the proprietor of the hospital on account of vicarious liability, arising out of an act of his employee - opposite party No. 2, were held liable to pay the compensation. The District Forum also gave direction to pay the unpaid costs awarded earlier. The consumer complaint was, thus, decided in above terms per order dated 30. 11. 2004.

Aggrieved by the impugned order, opposite party No. 3 -Insurance Company filed Appeal No. 05/2005, mainly on the ground that the District Forum failed to consider the fact that there was no deficiency in the services of the Insurance Company and that it could not have been saddled with the responsibility to pay any compensation to the complainant.

APPEAL No. 07/2005 was filed by opposite party No. 1-Sh. Kashmir Singh Mahrok, the proprietor of the hospital, in which the surgical operation was performed and the legality of the impugned order was questioned mainly on the plea that the medical officer, who performed the surgical operation, was alone liable to pay compensation for any act of negligence and deficiency in service and that he had merely provided the room and other facilities in the hospital to the complainant on the date of the operation and has had no concern with the treatment given by the medical officer. Appeal No. 37/2005 was filed by the complainant and challenge was made to the assessment of the quantum of compensation made by the District Forum and it was urged that considering the medical negligence and subsequent specialized treatment received at Lucknow, the compensation assessed and awarded was inadequate and that he was entitled to be awarded compensation of Rs. 2,00,000 together with interest and cost of litigation.

WE have heard the learned Counsel for the parties and have carefully considered their submissions in the light of the facts, circumstances and legal aspects of the case. The broad aspects of the case were that complainant got himself admitted in the afore-mentioned hospital and maternity centre on 4. 8. 2000 on account of obstructing voiding symptom, commonly known as difficulty in urination. On that very day, surgical operation of enlarged prostate gland was performed by Dr. Ajay Chaudhary, who has nowhere specifically disputed the claim of the complainant that as a result of the operation, passage for discharge of faecal matter and urine became one and common, a very alarmed and critical state in the given case of surgical operation. It is not in dispute that Dr. Ajay Chaudhary on that very day, referred the complainant for better management of this abnormality and further surgical interference/treatment to Shekhar Hospital (P) Ltd. , Lucknow. Considering the admitted fact that on the very day of the surgical operation, the complainant had to be referred to Lucknow, where complainant reported the same day and got himself admitted in Shekhar Hospital (P) Ltd. , belie the claim of Dr. Ajay Chaudhary that since the complainant did not heed the advice to take the prescribed medicines, the things went that way and the complainant had to be referred to Lucknow. The peculiar facts and circumstances of the case, thus, do not admit of any carelessness in taking the medicines on the part of the complainant. Rather, the urgent necessity to send the complainant to Lucknow was on account of the fact that things went wrong per se at the hands of Dr. Ajay Chaudhary in the performance of above surgical operation of the complainant. It is of significance that Dr. Ajay Chaudhary has not challenged the finding of the District Forum that he made medical negligence and deficiency in service in the performance of the surgical operation of the complainant by way of filing an appeal against the impugned order. Since the Insurance Company has issued insurance cover, learned Counsel for the Insurance Company persuasively argued that in the absence of expert medical evidence, the District Forum was not legally justified in coming to the conclusion that Dr. Ajay Chaudhary made medical negligence and deficiency in service in performing the surgical operation of the complainant''s prostate gland. In support of her submission, learned Counsel pressed into service good number of reported decisions, namely, Kishori Lal v. E. S. I. Corporation, II (2007) CPJ 25 (SC); Tara Chand Jain v. Sir Ganga Ram Hospital and Another, I (2006) CPJ 6 (SC)=i (2006) SLT 433; Vinitha Ashok v. Lakshmi Hospital and Others, I (2002) CPJ 4 (SC)=vi (2001) SLT 735; Jacob Mathew v. State of Punjab and Another, III (2005) CPJ 9 (SC)=vi (2005) SLT 1=122 (2005) DLT 83 (SC)=iii (2005) CCR 9 (SC)=2005 SCC (Cr.) 1369; State of Haryana and Others v. Raj Rani, IV (2005) CPJ 28 (SC)=vi (2005) SLT 527=iii (2005) ACC 811 (SC)=iii (2005) CLT 184 (SC)=air 2005 SC 3279; State of Punjab v. Shiv Ram and Others, IV (2005) CPJ 14 (SC)=vi (2005) SLT 498=iii (2005) ACC 717 (SC)=air 2005 SC 3280; Laxman Balkrishna Joshi v. Trimbak Bapu Godbole, AIR 1969 SC 128; V. Mohan Rao v. Miot Hospitals and Another, I (2008) CPJ 179 (NC); Vidya Bhushan (Dr.) v. Madan Awadhesh Institute and Another, I (2007) CPJ 70 (NC); M. A. Ganesh Rao v. Dr. T. M. A. Pai Rotary Hospital and Others, I (2007) CPJ 338 (NC); Agarulakshmi Rajyam v. K. Sudhakara Rao (Dr.), II (2007) CPJ 240 (NC); Sanjeev Sodhi (Dr.) and Others v. Darshan Kaur, II (2007) CPJ 257 (NC); Snehlata and Another v. Ratan Jyoti Netralaya and Another, III (2007) CPJ 275 (NC); Abdush Sakur v. Kamal Ashraf (Dr.), III (2007) CPJ 124; Ajay Gupta v. Pradeep Aggarwal (Dr.) and Others, IV (2007) CPJ 64 (NC); Sivakami v. G. V. N. Hospital and Others, IV (2007) CPJ 298; Pawan Bansal (Dr.) v. Darshan Singh and Another, IV (2007) CPJ 421; T. V. Sukumaran v. Joy K. Cheriyan (Dr.), III (2006) CPJ 312 (NC); Director of Settlements, A. P. and Others v. M. R. Apparao and Another, II (2002) SLT 778=air 2002 SC 1598; and Union of India and Another v. K. S. Subramanian, AIR 1976 SC 2433. In the face of the facts of the case, neither the ratio of the reported decisions, nor the submission of the learned Counsel, would serve the cause of the Insurance Company. It is well settled that where hospital papers per se support and prove the allegation of the medical negligence on the part of the doctor, then there is no need to have expert evidence for coming to a conclusion regarding medical negligence. We came across only one document pertaining to the admission of complainant in Guru Ram Dass Hospital and Maternity Centre on 4. 8. 2000 and his surgical operation, the same day by Dr. Ajay Chaudhary. It is Paper No. 34 of the record of Appeal No. 37/2005. It was brought on record of the complaint by the complainant. Neither the proprietor of the hospital, nor the medical officer placed on record any document concerning the case of the complainant and it was, thus, evident that critical information had been withheld from the Consumer Fora. The critical information pertained to pre-operative assessment, such as various blood tests and ultra sonography report, required to determine the measurement and weight of the prostate gland, which certainly provide an information to the surgeon/medical officer as to how much deep cut has to be made to remove the enlarged prostate gland. It does not stand to reason as to why the pre-operative assessment report was not placed on record and in the totality of the circumstances of the case, it would be legitimate to draw an inference that the surgical operation on complainant was performed in hot haste without pre-operative care as soon as the complainant was admitted in the hospital by Dr. Ajay Chaudhary with a complaint of difficulty in urination and as a result of this medical negligence, the things went wrong and for discharge of faecal matter and urine, a common passage was formed. Since Dr. Ajay Chaudhary clearly appear to have not done pre-operative assessment, it could safely be said that he has failed to exercise reasonable care and caution, which a prudent and reasonable man would do. Considering this aspect of the matter, the ratio of the decision of the Hon''ble Apex Court in the case of Smt. Savita Garg v. The Director, National Heart Institute, IV (2004) CPJ 40 (SC)=vi (2004) SLT 385, fortify our inference. The Hon''ble Apex Court observed that it is for the hospital or institute to produce the treating physician concerned and has to produce evidence that all care and caution was taken by them or their staff to justify that there was no negligence involved in the matter. It was further observed: "once a claim petition is filed and the claimant has successfully discharged the initial burden that the hospital was negligent, and that as a result of such negligence the patient died, then in that case the burden lies on the hospital and the doctor concerned who treated that patient, that there was no negligence involved in the treatment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . In any case the hospital is in better position to disclose what care was taken or what medicine was administered to the patient. It is duty of the hospital to satisfy that there was no lack of care or diligence. " Further, the discharge summary of Shekhar Hospital (P) Ltd. , Lucknow, where on being referred, the complainant was admitted on 4. 8. 2000 and was given corrective specialized surgical treatment, also per se prove medical negligence on the part of Dr. Ajay Chaudhary in the performance of operation. It is Paper No. 35 on the record of Appeal No. 37/2005 and was also placed on record of the complaint by the complainant. Its perusal makes it obvious that at the time of admission in the hospital, complainant was diagnosed as a case of Post Prostatectomy Recto Vesical Fistula and on 5. 8. 2000, Pelvic colostomy was done under general anaesthesia and on 6. 8. 2000, suprapubic cystostomy was done and per urethral catheter was then removed. Complainant was, at the time of discharge on 11. 8. 2000, advised for secondary suturing of suprapubic wound after 3-4 days of dressing. This discharge summary also affirm that clinical presentation of the complainant at the time of admission indicated faecal discharge from suprapubic wound and also in per urethral catheter following suprapubic transvesical prostatectomy done earlier, i. e. , on 4. 8. 2000 by Dr. Ajay Chaudhary. Having taken this document also into consideration, the admission slip of 4. 8. 2000 of the complainant and brief summary available on it and the above discharge summary of Shekhar Hospital (P) Ltd. , Lucknow, also lead us to a conclusion that this is a case where principle of res ipsa loquitor (facts speak for themselves) will apply and there cannot at all be further need of additional or expert evidence to show that Dr. Ajay Chaudhary made medical negligence and deficiency in service in performing the surgical operation of the complainant''s prostate gland and that he has failed to exercise reasonable care and caution while doing the required surgery. So far as the argument on behalf of the proprietor of the hospital that he was not to be held vicariously liable to pay the compensation was concerned, it need to be stated that despite opportunity having been given by the District Forum, the proprietor has failed to place on record any material to indicate that Dr. Ajay Chaudhary was not employed by him and was in fact independently doing work as a surgeon or as a physician in relation to his patient, who was being provided a room and other facilities in the hospital on rent during the course of treatment. Therefore, doctor alone could not have been held responsible for anything which goes wrong in the treatment of the patient. Hospital will have to own its responsibility also, as has also been held in Savita Garg''s case (supra ). Therefore, the proprietor of the hospital has to be held vicariously liable for the negligence of his employee-medical officer/ doctor and since Dr. Ajay Chaudhary was extended Professional Indemnity Insurance Cover, the Insurance Company and the proprietor of the hospital were, jointly and severally rightly saddled with the responsibility to pay the compensation to the complainant.

SINCE the Insurance Company and the proprietor have not challenged the quantum of compensation awarded by the District Forum, there appears to be no occasion to say that the compensation awarded is on the higher side. So far as the submission of the learned Counsel for the complainant that the compensation awarded is inadequate is concerned, we could not lay our hands upon any such material as may have supported the claim that in the facts and circumstances of the case, the lump sum compensation of Rs. 1,00,000 awarded by the District Forum is inadequate. Therefore, there is no occasion for enhancement of the compensation awarded.

FOR the reasons aforesaid, we are of the view that the District Forum was justified in accepting the complainant''s claim that Dr. Ajay Chaudhary has failed to exercise reasonable care and caution and made medical negligence and deficiency in service in performing the surgical operation of the complainant and as a consequence thereof, awarding lumpsum compensation of Rs. 1,00,000 to the complainant. All these appeals lack merit and are liable to be dismissed. In the result, all the three appeals are dismissed. No order as to cost.

Let the copy of the judgment be kept on the record of Appeal Nos. 07/2005 and 37/2005. Appeals dismissed.