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Judgment
Dr. S. M. Kantikar, Member
The present Revision Petition has been filed against the Order dated 06.06.2011 of the Chhattisgarh State Consumer Disputes Redressal Commission, Pandri (hereinafter referred to as the State Commission) whereby the Appeal was dismissed and the Order of the District Consumer Disputes Redressal Forum, Rajnandgaon (hereinafter referred to as the District Forum) was upheld.
For convenience, the Parties are referred as mentioned in the Complaint before the District Forum; the Petitioners being the Opposite Parties and the Respondent being the Complainant.
Brief facts of the case are that the Complainant's husband, Late Ghanshyam Das Chachlani (hereinafter referred to as the patient) had chest pain on 11.10.2007 in the morning at 8:25am and was taken to the District Hospital, Rajnandgaon. The duty doctor examined him and the staff nurse was instructed to take immediate ECG, X-ray chest as well as blood and urine tests. At 11:00 am, Dr. Rehman the Medical Specialist examined the patient and gave instruction to the staff nurse to get ECG, X-ray and other investigations done. It was alleged that the Complainant was ready to pay the charges for investigations, but in spite of instruction of the duty doctor, the staff nurse did not care to get the tests conducted till 2:00 pm. The patient again suffered severe pain in chest at 2.00 pm, then immediately the duty nurse was called, but she refused to attend the patient by saying that it is not possible for her to come again and again to the same patient. At about 2.30 pm students and Professor of Dental College came and surrounded the patient. The patient was in serious condition and they also asked the staff nurse to call the treating physician immediately, who after examination declared the patient dead. Alleging medical negligence against the Doctor and staff nurse at the District Hospital, the Complaint before the District Forum, Rajnandgaon was filed by the Complainant claiming a compensation of Rs.6,00,000/- on account of untimely death of her husband.
The Complaint was resisted by the Opposite Parties by filing the Written Statement. The Opposite Parties filed an affidavit of Dr. M.K. Diwakar, Civil Surgeon, along with few documents. The Opposite Parties stated that the Complaint is not maintainable as the treatment was done free of charge at the Government Hospital. The Complainant neither deposited any fee with the concerned department to take the tests nor did she intimate the concerned specialist doctor about the delay in taking the tests. The patient was given lifesaving injections and medicines after timely check-up of the patient. Moreover, as per the Inquiry Officer's report, it was clear that no mistake or intentional negligence was committed by any Doctor or staff nurse during the treatment of the patient. The Complainant failed to produce any expert opinion with respect to medical negligence.
The District Forum, after hearing the Parties and appraisal of evidence, allowed the Complaint and directed the Opposite Parties vide Order dated 27.12.2010 to pay the amount of Rs. 3,75,000/- along with interest @ 9% from 16-10-2010 till the date of payment and also Rs.2000/- as the cost of the litigation.
Being aggrieved from the Order passed by the District Forum, the Opposite Parties appealed in the State Commission. The State Commission dismissed the Appeal vide order dated 06.06.2011.
Being aggrieved by the Order of the State Commission, the Opposite Parties filed the instant Revision Petition.
We have heard the arguments advanced by the learned Counsel for the Parties and perused the material on record.
The learned Counsel for the Complainant reiterated the facts. He further argued that an Inquiry Officer, Dr. Prakash Bhalerao was appointed by the Opposite Parties, who in his report dated 23.02.2008 stated about the delay in doing investigations and treatment. Thus, it amounts to failure in duty of care and the casual approach of the Doctor and staff nurse in the District Hospital, which caused death of the patient.
The learned Counsel for the Opposite Parties argued firstly on maintainability of the Complaint and stated that the Complainant was not a 'Consumer'. It was free service in the Government hospital which does not constitute "service" within the definition of section 2(1) (o) of the Consumer Protection Act, 1986. The Complaint was also time barred. He further submitted that the Complainant was herself negligent during treatment of her husband because when Doctor instructed the staff nurse for ECG and X-ray examination at 8.25am, the Complainant did not pay any charges for the tests. The staff nurse was already busy in other two serious patients and the medical specialist had not made any clear instructions in the bed head ticket of the patient. The tests were not conducted because the Dental College Professor and students were also studying the case of the patient.
We have given our thoughtful consideration to the arguments advanced by the learned Counsel for both Parties, perused the material on record, the evidence and the relevant medical literature.
The patient was admitted at 8.25am with severe chest pain; the duty doctor examined the patient and advised urgent ECG, X-ray and blood tests but nothing was done till afternoon 3.00 pm. Unfortunately, the patient died for want of treatment. It is relevant to note that the Opposite Parties had specifically admitted in their written version, that the Complainant had not paid any amount to the concerned department and thereby she herself was negligent. The relevant text in para no. 3 of the written version is reproduced as under:
"But the correct fact is that the Complainant was herself negligent in treatment of her husband. When the doctor had directed the staff nurse at 8:25am for ECG and X-ray etc. tests, then the Complainant had not paid any fees to the concerned department for the enquiry tests."
Thus it is clear that the hospital used to collect certain charges from the patients towards the investigations. The services were not totally free for each and every patient.
The State Commission duly considered the report issued by the Inquiry Officer Dr. Bhalerao regarding "delay in treatment" and the affidavit of Dr. Diwakar regarding "free service" in paragraphs 9, 10 and 11 as below:
But, so far as the question of payment of fee for ECG and X-ray examination is concerned, it has been very specifically admitted by the Appellants in their written version that the Complainant had not paid any amount to the concerning department and thereby she herself was negligent. This statement shows that the Hospital used to collect amount from at least some patients for X-ray examinations, ECG examinations, blood tests and urine tests etc. It is possible that some of the patients get these facilities free of cost in that Government Hospital maintained by the Government of Chhattisgarh, but at the same time, the Hospital collects fee for such examinations from some of the patients. Dr. Diwakar who filed his affidavit in support of the case of the Appellants has also not stated anything in his affidavit to the extent that free treatment is provided including free examination and diagnosis to each and every patient in the Hospital. He has simply stated that the Complainant has filed this complaint without payment of fee of any service, alleging negligence on the part of the Doctors and Nurses and so the consumer complaint is not maintainable, but it has not been stated that the Appellant Hospital provides free X-ray, ECG test and other facilities to each and every patient. Dr. Diwakar in his another detailed affidavit has stated that the treating emergency Doctor had instructed for ECG and X-ray examinations but such test could not be conducted because the Complainant was getting treatment free of cost on the basis of BPL card and no fee was deposited by her nor she was interested in deposit of any fee. This statement further clarifies that in the Hospital of the Appellants free treatment and free examination facilities are provided to the patients who are BPL cardholders and for other patients such free examination facilities and treatment are not available, that is why it has been stated by the Appellants that the Complainant was getting treatment free of cost on the basis of BPL card and no fee was deposited by her nor she was prepared to deposit any fee. From the affidavit of Dr. Diwakar, we are satisfied that the Hospital of the Appellant is not such, where each and every patients are provided treatment or other diagnostic examinations free of cost.
During the course of inquiry conducted by Dr. Prakash Bhalerao, report of which is available in the record of the District Forum as Annexure-A2, Staff Nurse Smt. G. Markam has clearly stated that the patient Ghanshyam Das Chachlani was admitted in the male ward at 8:25 am. The duty Doctor instructed her for getting ECG examination, but on account of load of work and because she was required to attend other more serious patients also, so she could not follow the instructions and could not get the ECG of the patient. In the meantime Medical Expert of the Hospital also visited the patient and then at 2:00 pm she handed over the duty to another nurse, but she explained that nurse for getting the ECG and X-ray done of the patient. Dr. Mahobe, in his statement, Annexure-A9 given to the Inquiry Officer of the Appellant, clearly stated that at the time of admission, he advised for X-ray chest and ECG of the patient. He found that general condition of the patient was not good. He also instructed the nurse to get the patient examined by Medical Expert and to get the tests done. Inquiry Officer Dr. Bhalerao has also recorded the finding that the nurse could not understand the instructions of the Medical Officer and about 25-30 medical students of Dental College and their Professor collected around the patient and so also the nurse could not attend the patient.
From this report as well as from the statement of Doctor and nurse, recorded by an independent Inquiry Officer, we are convinced that the condition of the patient was poor at the time of admission and his immediate ECG examination as well as X-ray examination of chest was necessary, as advised by the Medical Officer, but the same could not be conducted on account of negligence on the part of the nurse and treating Doctor. That is why the patient suffered another chest pain at about 2:30 pm and ultimately died. In the meantime he was also surrounded by medical students and Professor of Dental College so the deceased patient could not be attended by the treating Doctor or the staff nurse immediately.
In view of the judgment of Hon'ble Supreme Court in the case of Indian Medical Association vs V.P. Shantha & Ors. (1995) 6 SCC 651, where the Hon'ble Apex Court clearly held in paragraph No.55, sub-para 10 as;
"the 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 of 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."
Thus, in our considered view, the patient was a 'Consumer' and the medical services rendered by the Petitioners were also 'service' within the definition of section 2 (1) (o) of the Consumer Protection Act, 1986.
It should be borne in mind that any elderly patient with chest pain, who was brought to the hospital is a serious concern and emergency. The duty of care of the doctor or hospital is to rule out a cardiac problem at the earliest possible and the patient cannot be ignored. After the clinical assessment, the Electro Cardiography (ECG) is the most commonly used diagnostic test for the hospitalized patients. ECG remains a gold standard for diagnosis of transient myocardial ischemia; it is a non-invasive, inexpensive, simple investigation. The Hon'ble Supreme Court in the case of Paschim Banga Khet Mazdoor Samiti vs State of West Bengal AIR 1996 SC 2426 held that the patient who is brought to emergency and who is not treated, results in violation of his Right of Life guaranteed under Article 21 of the Constitution of India. Pursuant to the said judgment, a notification was issued by the Government, thereby making rules that no patient in emergency shall be denied treatment and shall be shifted to the adjacent Hospital after providing primary aid, which is duly exhibited on record. However, in the instant case the doctor and staff nurse acted casually the patient's cardiac emergency (chest pain).
Considering the entirety of the case, in our considered view, the death of patient was due to negligence of the doctor and staff nurse of the hospital and thus the hospital is vicariously liable in the instant case. The Hon'ble Supreme Court in the cases Achutrao Haribhau Khaodwa vs State of Maharashtra & Ors. (1996) 2 SCC 634 and State of Punjab vs Shiv Ram, (2005) 7 SCC 1 held that the Government Hospitals or the State are vicariously liable if Doctors are found to be negligent as also for the negligent acts of employees including the one involved in running of the hospitals.
On the basis of the discussion above, within the meaning and scope of section 21(b), we find no grave error in appreciating the evidence by the two fora below. We find no jurisdictional error, or a legal principle ignored, or miscarriage of justice, as may necessitate interference in the exercise of the revisional jurisdiction from this Commission.
The Revision Petition, being misconceived and devoid of merit, is dismissed.