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Judgment
THIS order will decide the two cross -appeals filed against the order passed by the State Consumer District Redressal Commission, Raipur, Chhattisgarh in Consumer Complaint No. 4/2009. First Appeal No. 451/2010 filed by the Original Complainant Smt. Anamika Sharma for enhancement of the compensation, while another First Appeal No. 3/2011 filed by Dr. Shankar Rao Keshav Rao Sonwane, the opposite party No. 4 for dismissal of the Complaint. Brief facts of the case:
The Complainant No. 1 Smt. Anamika Sharma is the wife of late Shri Sudhir Sharma, whereas Complainant Nos. 2, 3 are his parents. Late Sudhir Sharma (referred herein as "patient") was aged about 32 years, a young person working as Lecturer in Chemical Engineering Department, at Raipur Institute of Technology. He was suffering from low backache. Initially he took physiotherapy at Vivekanand Ashram as per advice of Dr. Mahorkar and Dr. Ashok Kumar. Thereafter, during 28.5.2007 to 2.6.2007 he was taking physiotherapy by Dr. Shankar Rao Sonawade (OP -4) at Centre of OPs -1 and 2 by paying Rs. 20 per day. On 2.6.2007 while receiving physiotherapy (IFT) he suddenly died. Main cause of death of Sudhir Sharma was use of IFT machine for physiotherapy without proper arrangements for voltage control and that time OP No. 4 doctor had gone somewhere else leaving the patient alone. Hence, immediate attention was not provided to the patient. The complainant alleged that OP Nos. 1, 2 and 4 knowingly used such faulty IFT electric machine for physiotherapy at their centre which caused Sudhir''s death. Therefore, there was negligence of OP Nos. 1, 2 and 4 along with the OP No. 3 i.e. the manufacturer, distributor and repairer of the machine and alleged that all OPs are jointly liable. It was also alleged that consent was not taken by OPs before IFT treatment.
COMPLAINANTS filed a complaint before the Chhattisgarh State Consumer Disputes Redressal Commission, Raipur (in short State Commission) and have specifically alleged against OP No. 4 and claimed compensation for his negligence, whereas compensation from OP Nos. 1 and 2 has been claimed on the principle of vicarious liability. The Complainants have also claimed compensation from OP No. 3 i.e. the manufacturer of the diathermy machine. Before the State Commission the OPs -1 and 2 jointly filed a written version and a separate written version was filed by OP -4. But, the right to file written version of OP No. 3 was forfeited as per Section 13 of the Consumer Protection Act, 1986. But, he was permitted to argue legal issues and about the details of said machine.
AFTER hearing the parties and on the basis of evidence produced before it, the State Commission allowed the complaint and held OP -4 responsible for negligence and ordered to pay Rs. 5 lakh as compensation to the Complainant together with interest of 6% per annum from the date of complaint and Rs. 3,000 as a cost.
AGGRIEVED by the order of State Commission, the Complainant preferred the first appeal No. 451/2010 for enhancement of the compensation, while another first appeal No. 3/2011 was filed by Dr. S.K. Sonwane, the OP No. 4 for dismissal of the Complaint. We have heard learned Counsel for the parties, perused the evidence on file and hospital medical records. In the written version, filed by OPs -1 and 2 who denied all the allegations of deficiency in services like provided physiotherapy by IFT machine without consent, there was uncontrolled flow of electricity, which caused death of the patient. It was contended that, it was an implied consent and no separate consent in writing was necessary for physiotherapy. Further it was contented that the persons those attend physiotherapy on advice of the orthopaedic surgeon, no express consent was necessary. Also, the late Shri Sudhir Sharma was paying regularly the physiotherapy charges (registration) of Rs. 20 which was nothing but consent for treatment. The centre was run by Charitable Trust; which receives only a sum of Rs. 20 per day from the patient towards registration charges. No charges were collected for physiotherapy as such. Therefore, OPs 1 and 2 prayed for dismissal of complaint.
THE Counsel for OP -4 contented that, the deceased Sudhir Sharma had consulted various doctors for his problem of lower backache for the last 8 -10 years. Thereafter, he was receiving regular and satisfactory treatment for several years from OP -4. Further, it was contended that the OP 4 is not paid any salary, but is being given only travelling allowance, for meeting the expenditure towards petrol. OP No. 4 also, does not charge any fee from the patient. Hence, neither the deceased nor the Complainants are consumer of OP Nos. 1, 2 and 4.
ON the date of incident the late Sudhir Sharma came to OP -1 hospital, he was being treated with the help of IFT (SWD machine), suddenly he developed some problem. The OPs -1 and 2 denied that late Shri Sudhir Sharma was left alone by OP -4; but OP -4 was present with the patient and he called Dr. Tribhuwan Jain, who was available in the room nearby to provide preliminary treatment and later took the patient to nursing home of Dr. Goyal. Despite all these untiring efforts Sudhir Sharma died, hence OP Nos. 1 and 2 cannot be held responsible for the same. They have also contended that same machine is used for several other persons without any complications. Hence, it cannot be said that the machine was defective. The death of Sudhir Sharma was caused due to sudden heart failure, which may happen to any person and this fact has been established by the postmortem report also. To decide these both appeals we need to look in to the several aspects like Consent, Qualification of treating doctor/physiotherapist (OP -4), the Post -mortem report, rights and duties of hospital (OP -1 and 2), the question of vicarious liability, and the quantum of compensation whether it was just and proper?
REGARDING Consent, it is a bounden duty of medical professional to take informal consent of a patient during any treatment, invasive or non -invasive procedures, medication, etc., but, for routine procedures conventionally no express consent is necessary. Most of the doctors rely upon Implied Consent. It depends upon the Doctor -Patient Relationship. In this case, the deceased had been taking physiotherapy from OP No. 4 for a long period by frequent visits to OP -1 hospital; therefore we are of considered view that it was an Implied Consent, but, in. our opinion this is not a case of "Volenti Non fit Injuria".
WE have perused the Post -Mortem (PM) report and opinion given by Dr. R.K. Singh, the Head of Department of Forensic Medicine, Pt. Jawaharlal Nehru Medical College, Raipur to the certain questions during police investigation, which reads as follows: (a) Whether death may result from current transmitted to the patient during physiotherapy?
(b) Under what circumstances the signs of electrocution do not appear on the body of the patient?
(c) Whether death is possible without such marks?
The pointwise reply by Dr. R.K. Singh, runs as follows:
(a) If electric current in fatal intensity/amount passes into the body through any means, death may be caused as suggested by you, sometimes during therapeutic procedure also and death is usually caused by conduction abnormality in heat/by respiratory exhaustion or by brain stem involvement. For any defector disturbance in electric supply, the electrical engineer''s opinion may be sought.
(b) Yes, death may be caused by the effects of electric current even without producing any evident electrocution mark on the body when current applied - -
(1) through any intercepting object;
(2) through wet body part or
(3) For very transient moment the current passes into the body, etc.
Hence, it appears from the aforesaid opinion given by Dr. R.K. Singh that death may be caused during diathermy also without leaving any marks. The doctor had also advised to obtain opinion of electrical engineer on the question of defect or disturbance in electric supply was concerned.
We place more reliance upon the Expert Committee Report in this case, the analysis of said report given by the Dean, is as under: Analysis
The deceased was a male, aged 32 years.
As per history, he was suffering from; low backache for which he was undergoing physiotherapy (Electro therapy).
On 2.6.2007, he was put on an electrical therapy (Short Wave Diathermy and Interferential therapy), during the treatment, he suddenly cried and soon after he was reported to be dead as per the records.
In autopsy as well as histopathological examination, no pathology, mark of injury or burn was found which may be considered significant in this case.
Opinion:
In the absence of pathology and injury, the most common and logical cause of such a sudden death of a practically healthy adult individual under the circumstances on exclusion appears to be related with the electrical device used. However, the opinion of an electrical engine regarding the electric supply from the electrical device was necessary to finally conclude or exclude the cause of death of the deceased. It is a proper case where circumstantial evidences are of greater help.
It is worth to mention that sometimes burn marks are not produced in cases of death due to electricity and autopsy also does not reveal any positive finding.
In absence of adequate aforesaid information, it is not possible to deduce conclusion whether the treating person was medically negligent or not?
THE Counsel for opposite parties vehemently argued that the PM report and Histo -pathological Report support that the death of Sudhir Sharma was due to heart attack. However, we have perused the revised histopathological report dated 4.6.2007; Autopsy No. 24/07 which clearly reveal in points 3 and 4 of the report, is as follows: (3) Sections from aorta - -shows athermanous plaque.
(4) Multiple sections studied from different parts of heart show preservation arte -fact, however, if shows no specific pathology.
Therefore, we do not find any merit in such arguments.
WE have allowed the Counsel for OP -3 to ague the matter only on legal issues. He has admitted being manufacturer of the physiotherapy unit and having sold one machine, to OP No. 2 on 23.6.2002 vide invoice No. 044/2002 -2003. Guarantee period for the machine was one year from the date of purchase. Thereafter, there was no annual maintenance contract for the said machine. He further stated that the physiotherapist was not a qualified one. Hence, OP -3 cannot be held liable. Therefore, we find here that, the OPs 1 and 2 failed to provide basic infrastructure, failed to provide proper IFT machine which had mechanism to regulate such irregular flow of electricity and the regular Annual Maintenance Contract (AMC). We do not find any need for opinion of any Electrical Engineer and since it has not been produced by either party, the basis of evidence on record is sufficient to decide this case. No plausible explanation for loud cry prior to unconsciousness and death of patient has been furnished by the OPs. It is an admitted fact that the patient was connected to IFT Shortwave Diathermy machine while he cried loudly and became unconscious.
ANOTHER point for our discussion is, whether OP -4 was qualified as a Physiotherapist? We have perused various documents produced by OP -4 like experience certificate issued by Ramakrishna Mission, the diploma certificate issued by Base Hospital, Delhi Cantt and a Major Rehabilitation Centre, Calcutta. Those documents only mention about the short period of training about 6 to 12 months, which cannot be considered as a qualification as a Physiotherapist. Again, the two certificates issued by Military Hospital, Kharkee do not bear the date of issue. One Certificate of Proficiency which issued by Army Medical Corps, Lucknow, on 31.1.1992, clearly mentions that OP -4 served as "Physio Therapy Assistant" from 30 January, 1968 to 31 January, 1992. He has acquired high degree of proficiency in his trade.
THEREFORE , we may accept that the OP -4 had experience of about 24 years as a Physiotherapy assistant, which does not mean that he is qualified; also he was not a registered physiotherapist. Merely the experience certificate does not make him eligible to provide physiotherapy to public in general. Hence, the act of OP -4 was a negligent act. We rely upon the judgment of Hon''ble Apex Court in Poonam Verma v. Ashmit Patel & Ors.,, (1996) II CPJ 1 (SC). We also hold the conduct of OP -4 amounted to actionable negligence, as per decision of Hon''ble Apex Court in Dr. Laxman Balkrishna Joshi, : AIR 128 1969 SCR (1) 206. We also hold OPs -1 and 2 vicariously liable in this case. The act of OPs -1 and 2 is departure from accepted standards of medical care or health care or safety proximately resulting in a patient''s injury or death. In our opinion safety must be read narrowly to include only safety concerns directly related to the patient''s care or treatment, it should include equipment, used in the patient''s care, hospital bed, etc. It is apparent from the evidence that OP -1 hospital did not possess adequate facilities to tackle such emergency. The hospital is liable if employees without qualification as long as they are acting in the course and scope of their employment. The contention of OP -2 that it is a Charitable Hospital and no amount for physiotherapy was charged, the patient paid only registration charges; and as such he was not a consumer does not hold much water. OP -2 did not produce any evidence to prove that all the patients are treated free of charge. We rely upon the landmark judgment of Hon''ble Supreme Court in the case of Indian Medical Association v. V.P. Shantha, : I (1996) CLT 81 (SC) : III (1995) CPJ 1 (SC) : (1995) III CPR 412 (SC).
THE State Commission held only OP -4 liable, but, we are of considered view that, it has erred in not holding the OP -1 and 2 as vicariously liable. There are many lapses on the part of OP -1 and 2. Moreover, the State Commission awarded the compensation which is not just and proper.
IN this regard, the case of Joseph & Ors. v. Dr. G. Moonjely & Ors., : (1995) ACJ 253, can be relied on, wherein it was held that: People who run a hospital are in a law under the same duty as the humblest doctor. If their staff is negligent in giving the treatment, they are as much liable for that negligence as anyone else who employs others to do his duties for him.
The OP 1 and 2 themselves failed in fulfilling their duties and committed negligence on several accounts. They were negligent in their administrative duties as they did not exercise due care and skill in selecting properly qualified and experienced doctors/staff for providing services in the hospital. In this regard, reliance can be made on Spring Meadows Hospital & Anr. v. Harjot Ahluwalia, : III (1998) SLT 684 : JT 1998 (2) S.C. 620, wherein it was held that: since the said nurse was not a Qualified Nurse, it was clearly negligence on part of the hospital to employ her. Any nurse always means a qualified nurse only and it does not include an unqualified nurse.
WE disagree with the view of State Commission awarding Rs. 5,00,000 as compensation to the complainant. It is not in dispute, that, the deceased patient was a hardworking, sharp and intelligent person, who was working as Lecturer in Chemical Engineering branch of the Raipur Institute of Technology; with salary of Rs. 12,335 per month.
TO decide the award of compensation and interest we refer the recent judgment delivered on October 24, 2013 by a Division Bench of Hon''ble Justices V.V. Gopala Gowda and C.K. Prasad in Dr. Kunal Saha & Ors., : VIII (2013) SLT 513 : IV (2013) ACC 378 (SC) : IV (2013) CPJ 1 (SC) : Civil Appeal Nos. 2867, 731 and 858 of 2012, (in short the Dr. Kunal Saha''s Case). It can be viewed as a benchmark for the determination of quantum of compensation for medical negligence, in which Hon''ble Supreme Court enhanced the compensation awarded by National Consumer Dispute Redressal Commission (National Commission) in a batch of appeals. To determine the compensation, multiplier method has been followed in many cases, there are several instances where the SC has seen beyond this strait -jacket approach, especially when it came to medical negligence claims. Thus, in this particular case on hand, we look at various claims of the complainant on account of untimely death of her husband at the age of 32 years, including the income that was being earned by the deceased at the time of her death at the age of 60, therefore, the complainant is liable for a just and reasonable compensation.
IN totality of our discussion and putting reliance upon the Dr. Kunal Saha''s case, we of considered view that the complainant deserves enhancement of compensation jointly and severally from the all opposite parties, except OP -3. Accordingly, we modify the order of State Commission and allow the FA 451/2010 filed by the complainant and dismiss the FA 3/2011 with following final order as follows: The opposite party 1, 2 and 4 are held liable for medical negligence causing death of Sudhir Sharma. The OP -1 and 2 are directed to pay Rs. 15 lakh jointly and severally. The OP -4 is directed to pay Rs. 2 lakh to the complainants. The amount of compensation should be paid with the interest @ 6% per annum from the date of filing the complaint. The entire order should be complied within 90 days from the date of receipt of order, otherwise it will carry further interest @ 9% per annum till it''s realisation.
Parties are directed to bear their own costs.