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Judgment
The present compliant has been filed by the father of the deceased Sumit Talwar aged 25 years. The case of the complainant is that his son was suffering with Swine Flu. On 3rd December, 2009 and he took him to Ram Manohar Lohia Hospital in Swine Flu emergency and an emergency card No.E/182585/2009 dated 3.12.2009 at 11.14 am. was issued to him. Before he was being referred to the doctor his temperature was recorded and the test for SPO Level 2 was done it was found at the level 83% and his fever at 100 Fahrenheit. Despite that he was not treated properly for his disease i.e. N1H1 Swine Flu. He was informed that he was suffering from cough and cold and simple treatment was given to him and he was asked to go to home. The complainant gave those medicines as prescribed by opposite party No.1 Doctor to his son and also steam at night as prescribed. However, in the morning of 4th December, 2009 i.e. intervening night of 3rd December, 2009 and 4th December, 2009, his son complained of the breathlessness in his chest and his condition also was deteriorating. So he immediately took him to Balaji Action Medical Institute, FC-34, A-4, Paschim Vihar New Delhi which was the nearest hospital to his house. He reached there at about 11.00 am and his son was taken to the emergency and his SPO Level 2 was found at 67% and the oxygen mask was put on him and it was informed that SPO Level 2 was not increasing even with oxygen mask and that since no bed was available in the hospital, his son was not admitted for treatment. His request for providing an ambulance with oxygen cylinder for shifting his son to other hospital was not exceeded to. Thereafter, his son was taken to ICU and was kept at ventilator. He was also told that the patient could not be shifted in this condition to other hospital or he would die on the way.
He was given treatment for Pneumonia and at 10.00 pm he was informed that treatment for Pneumonia was not working. The complainant told the doctors to treat his son for H1N1 Swine Flu. The blood test for H1N1 was done. Medicine Tamiflu was not available in the hospital and the complainant could not find it in any medical store. However, he could manage to get the medicine Eluvir and if given to his son. When the report of the blood test was received on 5th December, 2009 at about 9.00 pm, it was confirmed that his son was suffering from Swine Flu. He was advised to shift his son to Government approved Higher Centre or Isolated Ward since the hospital Balaji was not having any treatment for Swine Flu. He shifted his son to Dr. Ambedkar Hospital on 6th December, 2009 as he could not get any bed at Government approved hospital at night despite his best efforts. After reaching to Dr. B.R. Ambedkar Hospital, the Doctors examined his son for about half an hour and the doctors declared his son as dead. The complainant sent a written complaint to Health Ministry, Delhi Government and its copy to Ram Manohar Lohia Hospital. After perusing the complaint of the complainant, Delhi Medical Council vide order No.DMC/DC/F.14/2Comp. 648/2011/118398 dated 15.2.2011 concluded that there was an error on the part of opposite party No.1- Doctor. Since opposite party No.1 was working under the supervision and control of opposite parties No.2 & 3, therefore, all the opposite parties were jointly and severally liable to compensate the complainant for the carelessness and negligence on the part of opposite party No.1. It is submitted that deceased was only 24 years of age and was employed in Voltas Ltd. at a monthly salary of more than Rs.50,000/- per month. His life expectancy was till 60 years. During this period his salary also would be increased and he would have also reached to the status of Area Service Manager since he was a hard working boy. The complainant and his family have suffered a heavy shock due to his death for which opposite parties are responsible. It is submitted that despite the fact that SPO Level 2 was 83%, he was prescribed the medicine for common cough and cold and he was not admitted in the hospital despite the fact that the patient was brought in emergency meant to swine flu cases. It is submitted that had he been provided proper treatment at Ram Manohar Lohia Hospital by opposite party No.1 on the date he reported therein his son would not have died. It is submitted that the complainants be compensated for their loss. Pursuant to the directions of this Commission dated 25.8.2011 the complainant had calculated the compensation following the formula given in Sarla Verma & Ors vs Delhi Transport Corp.& Anr 2009 (6) SCC 121 case by Hon'ble Supreme Court and had calculated the compensation to the tune of Rs.1,15,12,200/-.
Opposite parties were served. Opposite party No.1 did not attend the proceedings and was proceeded ex-parte. Opposite party Nos. 2 & 3 had filed their joint written version. The plea taken in the written version is that present complaint is not maintainable since the services had been provided by the opposite parties free of cost. This plea has not been pressed during the course of final arguments. It is submitted that the argument was based on finding of Hon'ble Supreme Court in Indian Medical Association vs. V.P. Shanta & Ors. AIR 1996 SC 550 and that is no more a valid judgment as it stands modified/overruled. It is further submitted that as per Delhi Medical Council report dated 15.2.2011, it is a is evident that there was no element of negligence on the part of opposite party No.1 but it was a case of error of judgment on his part. It is further submitted that the patient died because he was taken to a hospital i.e. Balaji Hospital which did not have the facility for treatment of H1N1 Swine Flu. It is further submitted that the patient had complained of fever with chills, cough with expectoration and body ache. He had no history of breathlessness, chest pain, hemoptysis, dizziness etc. as per the declaration form filled by the deceased. After clinical examination, the deceased was categorized in Category 'A' patients for suspected H1N1 case. It is submitted that as per Ministry of Health & Family Welfare Government of India guidelines category 'A' patients do not require H1N1 testing of Oseltamivir. The deceased was
advised symptomatic treatment. The deceased was asked to go to the nurse for temperature and oxygen saturation measurement and report back for further action. However, as stated by duty Dr. Nitin Prakash Mall who was on duty that time, the deceased did not return back to him after measurement of temperature and oxygen saturation by the nurse and went back to home. It is further submitted that the complainant, being father of the deceased did not fulfil his responsibilities properly as he took the deceased back to home. It is submitted that it is due to the carelessness of the deceased that such an incident had happened. It is further submitted that on the next day i.e. on 4th December, 2009 i.e. after 24 hrs., instead of bringing the patient/deceased to opposite party No.2 & 3 for review, he was taken to some other hospital which did not even have the facility of treatment of H1N1 Swine Flu and he should have been treated there for H1N1 Swine Flu instead of treatment for Pneumonia. It is submitted that when the patient was diagnosed H1N1, it was the duty of the Balaji Hospital to send the patient alongwith an equipped ambulance to the hospital having facility of H1N1 Swine Flu treatment. On these contentions, it is submitted that the complaint is devoid of merit and deserves to be dismissed.
The complainant filed the rejoinder wherein it has reiterated its contentions in the complaint and denied as incorrect all the contentions in the written version.
Parties have led their evidences and have also filed written synopsis.
We have heard the arguments and perused the relevant record.
During the course of argument, the learned counsel for the opposite party on instructions has given up his arguments that the complaint is not maintainable.
It is an admitted case that patient had reported alongwith complainant at emergency/causality, specially meant for H1N1 Swine Flu in the Ram Manohar Lohia Hospital. It is also not disputed that it was for the first time that such disease had impregnated India at such a high scale and in order to counter the spread of the disease, the special screening centre was established at Ram Manohar Lohia Hospital. It is also apparent from the facts that the complainant suspected his son being suffering with H1N1 Swine Flu that is why he had approached the emergency ward of H1N1 Screening Centre of opposite parties Nos. 2 & 3. He was examined by Dr. Nitin Prakash Mall (OP-1). OPD card is placed on record as annexure A at page 14A. The opposite party No.1 has noted therein that the patient was suffering with fever with chills, cough with expectoration and body ache for five days. He has also noted that the patient had no history of contact to H1N1 positive case. He treated him for the symptoms the patient was suffering and prescribed medication for five days with advice to report for review in MOPD i.e. Medical Outpatient Department.
According to the complainant he was discharged at that time while according to opposite parties No.2 & 3 he was advised to go to nursing staff for check of the SPO2 level and temperature and then with the report, come to Dr. Mall (OP No.1). We have perused the evidences on record to ascertain as to whose stand, of complainant or of opposite party No.1 on this issue, has merit. Both the parties have relied on the Medical Council Report dated 15.2.2011. It is apparent to note that before The Delhi Medical Council several witnesses had been examined. Smt. Manjula Sharma, Sister Incharge, H1N1 Screening Centre who was examined by the Medical Board has deposed before the Board as under: -
"Smt. Manjula Sharma, Sister Incharge, H1N1 Scree Centre stated that as per Hospital's protocol, any patient who reported to H1N1 Scree Centre was first seen by the Nursing Staff who recorded his SPO2 Level and then referred the patient to the doctor for examination."
Testimony of Dr. Sunil Saxena, Nodal Officer of H1N1 Centre of opposite party No.2 & 3 was also recorded. In his written version he has confirmed that the deceased had reported to its Centre on 3rd December, 2009 with complaint of fever with chills, cough with expectoration and body ache.
A written statement was also filed by doctor Nitin Prakash Mall, opposite party No.1 before the Medical Council wherein he had taken the following plea:-
"That after clinical examination he was categorized in category-A. As per the guidelines of Ministry of Health and Family Welfare, Government of India, Category-A patients do not require H1N1 testing or Oseltamivir. Hence, he was advised symptomatic treatment and was asked to go to the Nursing Station for temperature check and oxygen saturation measurement and report back for further action. The patient did not report back to him after measurement of temperature and oxygen saturation. The patient was clinically diagnosed in category-A; after the pulse oximetry reading of oxygen saturation 83% he should have been admitted for further management. But the patient and his relatives did not show the SPO2 report to the doctors.
Although Dr. Nitin, opposite party No.1 had taken the stand before the Medical Council of India but he has not appeared before this Commission despite service of notice and has not put up any defence. Smt. Manjula Sharma had explained the procedure followed by the hospital that when a patient reports to the H1N1 Screening Centre he is first seen by Nursing Staff who records his SPO2 level and thereafter only the patient is referred to the doctor. The OPD card Annexure A (Page 14A) wherein SPO2 Level was found at 83% and fever at 1000 Fahrenheit is noted which clearly shows that the procedure as sated by Smt. Manjula Sharma was followed. If plea taken by the opposite parties that patient did not get is temperature and oxygen saturation measured after he was advised by Nitin Prakash Mall. Had that plea be true the measurement of SPO2 level and temperature would not have found mention in the OPD card. It, therefore, is clear that the opposite parties have taken a false stand in the proceedings not only before us but also before the Medical Council. Opposite Party has not put up any defence. This conclusively proves the fact that at the time the patient was examined by the OP-1, the report regarding his level of SPO2 and his temperature was before opposite party No.1, Doctor Nitin Prakash Mall.
It is also urged on behalf of opposite party Nos. 2 & 3 that it is a case of error of judgment on the part of OP-1, Nitin Prakash Mall. It is argued that the patient was Category 'A' patient and our attention is drawn to guidelines of Ministry of Health & Family Welfare Government of India on Categorization and it is argued that as per these guidelines, no test of the patient is required and the patient is to be advised remain to confined at home and avoid mixing up with public and family members for 24 hrs and thereafter report + reassessment after 24 hrs. and the opposite parties had followed these guidelines. It is urged that there is no negligence on the part of the opposite parties. Learned counsel for the complainant submits that there is a clear violation of these guidelines. It is submitted that even for category 'A' patients, it is the duty of the Doctor to monitor the progress and reassess the condition of patient at 24 to 48 hrs. and it has not been done in this case since patient was advised to go home after giving him medication of five days and after five days he was asked for review. It is submitted that opposite party No.1 had not followed the aforesaid guidelines.
Learned counsel for the opposite parties have relied on the judgments of the Hon'ble Supreme Court in the case of Jacob Mathews and anr. Vs. State of Punjab & Anr. AIR 2005 SC 3180 and have submitted that the Hon'ble Supreme Court has held in the said judgment that simple lack of care or an error of judgment or an accident is not a proof of negligence on the part of Medical Practicener. Learned counsel for the complainant had relied on the findings of the Hon'ble Supreme Court in the case of Nizam Institute of Medical Sciences vs. Prashantha Dhananka II (2009) CPJ 61 SC and argued that the Hon'ble Court in that has clearly stated that in the case involving medical negligence once the complainant discharges the initial burden by making a case of negligence on the part of hospital or the doctor concerned the onus shifts on to the hospital or to the attending doctors and it is for them to satisfy the Court that there was no lack of care of diligence. It is further argued in the case of Prashantha Dhananka (supra) the Hon'ble Supreme Court has further held that the negligence is a breach of duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do or doing something which a prudent and reasonable man would not do. It argued that the complainant has successfully shown by way of medical Council report and also the OPD card of the deceased that opposite party No.1, concerned doctor had all the information showing the fact that the patient was suspected H1N1disease, yet he was not attended and treated for the said disease and discharged by prescribing 5 days medication with direction to report thereafter in MOPD. It is submitted that it gave the impression to the patient and the complainant that the patient was not suffering with H1N1 disease and that is why when the condition of the patient had deteriorated, he was taken to an another hospital. It is argued had the concerned doctor would have followed the guidelines and advised the patient to monitor the condition and report within 24/48 hrs., the complainant, instead of taking the patient to the ordinary hospital would have reported back to the RML Hospitals emergency ward for H1N1 patient. It is argued that the complainant had suspected the patient suffering with H1N1 disease and that is why the patient was brought to the emergency OPD which was specially opened for H1N1 patients.
It is however argued on this count by learned counsel for the opposite party that it is not a case of deficiency in service but only shows the error of judgment and that the patient ought to have been brought to emergency of the hospital rather than taking him to any other hospital.
Admittedly, the patient was suspected of H1N1 disease and that is why the complainant brought him to the RML Hospital and to the emergency of H1N1 disease and he was also examined by OP-1 for the s aid. His SPO2 level and temperature was available to the concerned doctor (OP-1) at the time when he had examined the patient. If the patient was falling under the category 'A' it was the duty of the doctor to advise the patient to report back to him within 24 to 48 hrs. for monitoring his progress and for reassessing his condition. Since prescription slip does not carry this advice, it is apparent that opposite party No.1 has flouted the guidelines issued by the Government of India and thus has acted negligently.
From perusal of the OPD card it is apparent that SPO2 level of the patient/deceased was 83% and Delhi Medical Council report clearly mentions this. The expert committee has concluded as under:
"There are certain things which have not been answered by the CMO (C & G), Dr. R.M.L. Hospital as (a) How a patient suspected as H1N1 category 'A' suspect was allowed to go home despite the fact that SPO2 level of Sh. Sumit Talwar was 83%? (b) How Doctor's prescribed him medicines without having preliminary examination done."
Even the experts found that Doctor- opposite party No.1 after perusing the SPO2 level of the patient should have treated him for H1N1 and should have kept the patient under observation. From this it is evident that the patient was taken to Ram Manohar Lohia Hospital in emergency as he was suspect of H1N1 disease but opposite party No.1 has neglected in discharge of his duty.
Such an act on the part of the concerned doctor i.e. OP-1 cannot be considered as an error of judgment since all the parameters showing the existence of disease H1`N1 in the patient were available to the doctor and he was also supposed to be aware of the guidelines of the Government of India in this regard but he instead of following it, advised the patient to go back to his house with five days prescription of cough and cold. An ordinary man in this condition would certainly think that the patient was suffering with cough and cold and would think that the disease of H1N1 had been ruled out. His conduct therefore to report to any other hospital as a normal patient, on deterioration of his condition, is normal under these situations. The argument of counsel for the opposite party that the patient ought to have been brought to RML hospital by the complainant and by not doing so he had risk the life of the patient, has not merit. The complainant has discharged the burden by showing that he took his patient to H1N1 emergency ward suspecting that he was suffering with this disease and shown it to the doctor on duty in the emergency ward for H1N1 patients and then the burden shifts upon the opposite party to show that the doctor on duty was not negligent in treating the patient.
Even the Delhi Medical Council in its report has observed as under:-
"1. As per symptoms the diseased was in category 'A'.
He remained in the same condition for next-24 hours at home.
His SPO2 recorded in the OPD card was (83%).
Dr. Nitin Prakash Mall, Junior Resident on duty at Dr. R.M.L. Hospital should have used his discretion in analysis the SPO2 (as mentioned in the casualty card) and consulted his senior and kept the patient under observation.
The statement made by Nodal Officer is contradictory to the statement given by the Sister Incharge and also the prevailing practice of the hospital."
This report of the Medical Counsel also clearly shows that the concerned doctor i.e. OP-1 has not treated the patient as per the guideline and has thus neglected in discharge of his duty. It is a case of deficiency in service on behalf of OP-1. Opposite party No.1 being the employee of opposite party No.2, the opposite party No.2 is equally liable for the negligence on the part of opposite party No.1. We are satisfied that had opposite party No.1 not been deficient in discharge of his duty, a precious life would not have been lost. Since the compensation claimed has been concluded using the formula laid down by Hon'ble Supreme Court in Sarla Verma's case (supra), we are satisfied that the compensation claimed is justified and we award the compensation of Rs.1,15,12,200/- including litigation cost. Consumer complaint stands allowed with these terms.