Medical Supdt., St. Gregorious Mission Hospital vs Jessy And Anr.

THIS revision petition arises out of the order dated 22.7.2008 passed by Kerala State Commission in Appeal No. 143/2004 whereby the appeal filed by the petitioner -the Medical Superintendent St. Gregorious Mission Hospital, was dismissed. The District Forum had allowed the complaint filed by Jessy and Another vide order dated 28.11.2003, in complaint No. 183/2001 and petitioner was directed to pay Rs. 2,75,000 with interest @ 9% p.a. from the date of petition till date of the order and thereafter 6% p.a. till the payment is made along with costs of Rs. 1,500. The State Commission while dismissing the respondents appeal for enhancement of compensation and the petitioner''s appeal by common order in Appeal No. 143/2004 slightly modified the order of the District Forum to the effect that first complainant shall be entitled to 50% of the amount and the second complainant (minor) shall be entitled for the remaining 50%. However, the amount due to the minor was directed to be deposited in a Fixed Deposit in a nationalized or scheduled bank and the interest accrued thereon can be withdrawn by the first complainant towards maintenance of the 2nd complainant. Aggrieved by the same, this revision petition has been filed by the petitioner.

BRIEF facts of the case are as under:

MR . Varghese Mathai @ Saji was admitted in petitioner''s hospital on 3.5.2000 for alcoholic psychosis treatment and for de -addiction of drugs. Later, on 8.5.2000, he was found to have committed suicide by hanging in the hospital ward. The deceased''s wife was not present at that time. The deceased was known to be having problems of smoking Ganja; change of behaviour for past 6 -7 months; not sleeping adequately and was showing unusual gestures specially in the past two weeks. The doctor had done detailed examination of the patient and diagnosed him as a patient -psychosis NOS (Not otherwise specified) and Ganja abuse. Mr. Sanjeevu Mathew, learned Counsel for the petitioner, submitted that respondent No. 1, Mrs. Jesse, the wife of the patient, was instructed to be with the patient to observe closely for any changes in the behaviour of the patient and inform the duty staff promptly about the same, as the patient was allowed freedom of movement in the hospital in order to create a homely atmosphere. She failed to look after her husband and did not follow the instructions given by the petitioners, which resulted in this unfortunate mishap. Learned Counsel referred to the documents, which have been admitted in the lower Fora. Special reliance has been placed on Clause 9'' of the Rules and Regulations of the hospital given to the patient, which were signed by the brother of the deceased, which clearly shows that Only one person is allowed to be with the patient after 6 p.m. Further the direction was given to the respondent No. 1 in Ex. R -1, which is a part of hospital''s record in page 27 of Volume 2. Strong reliance has been placed on the instructions given to the respondent No. 1 to be with her husband'' and contended that she ignored the same and did not inform the duty nurse that she was not going to be with the patient.

LEARNED Counsel further submitted that it is impossible to provide 24 -hour service to look after the personal affairs and private needs of each patient. No family member was attending the patient when he left the ward to commit suicide. Nurses Daily Record, Ex. R -1, is also placed on record, wherein it is noted on 8.5.2000 at 2.25 p.m., that "he was found on hanging by lungi. Lowered the body by co -patients immediately and informed duty doctor". The learned Counsel also relied on the deposition of the nurse (DW -2) page 23 of Vol. 2, wherein she stated that "The incident was at 2.15 p.m. Saji was admitted in general ward which is having two rooms. He went to the bathroom with a lungi for bathing. As he did not come back for some time, I went and looked for him. I saw him that he hanged with the lungi."

THE learned Counsel contended that respondent No .1 failed to follow the instructions given to her; that she failed to report any change in the behaviour of the patient to the duty staff; that she had gone out without intimating the duty staff, and that she was being irresponsible in looking after the safety of the patient and the patient committed suicide as he was left alone, and hence, he prayed that the revision petition be allowed.

MR . K. Shaj, learned Counsel for the respondents, submitted that firstly the patient was admitted in De -Addiction and Counselling Centre at St. Gregorious Mission Hospital, Parumala PO, Mannar [Ex. R -1 (C)] page 28 of Volume -2, which requires a specific consent letter for treatment, which has been allegedly signed by the deceased''s brother. The reason is that it required the patient to sign it himself since it is stated therein that I am addicted to Substances Abusing (alcohol/drugs/ smoking). I am using substances for the past .....years. I request you to help me by offering treatment in this centre.'' It is pointed out that the consent letter itself clearly shows that the patient is not an ordinary patient, but a patient, who would require special treatment and extra care needs to be taken on him considering his mental status, especially when he has been diagnosed as psychosis and Ganja abuse by the hospital doctors themselves.

SECONDLY , it is contended that respondent No. 1 -wife was instructed to be with the patient, is written in different ink. The said document has been shown and admitted by (DW -2), Medical Superintendent, (page 20 of Volume 2) that the ink used therein is different and there is slight difference of the colour of ink also. Suffice to say that the alleged instructions given to the respondent No. 1 -wife is only an afterthought and the hospital authorities have tampered the record to protect themselves.

IT is averred by the learned Counsel that no instructions were given to respondent No. 1 -wife to be present with the patient as alleged by the petitioner and the document Ex. R -1(b) cannot be relied upon as the instruction has been allegedly inserted post filing of the complaint. The patient being under psychosis treatment could have been violent and that is why respondent No. 1 - wife was not there with him continuously. Medical Superintendent Dr. Alex Paul''s admission of the difference in ink shows that there has been manipulation of the record. The case has been favourably decided by the District Forum, and the State Commission because they disbelieved the reliance placed by the petitioner, and in this revision petition also nothing contrary has been shown to us by the petitioner to take a different view from the District Forum/State Commission.

LEARNED Counsel relied on the judgment of the Apex Court in M.S. Grewal v. Deep Chand Sood, VI (2001) SLT 275=II (2001) ACC 540 (SC)=2001 CDJ 522 SC, wherein it is stated as follows: "Negligence in common parlance mean and imply failure to exercise due care, expected of a reasonable prudent person''. It is a breach of duty and negligence in law ranging from inadvertence to shameful disregard of safety of others. In most instances, it is caused by heedlessness or inadvertence, by which the negligent party is unaware of the results which may be followed from his act. Negligence is thus breach of duty or lack of proper care in doing something, in short, it is want of attention and doing of something which a prudent and a reasonable man would not do (vide Black''s Law Dictionary). Though sometimes, the word inadvertence'' stands and used as a synonym to negligence, but in effect negligence represents a state of the mind which however is much serious in nature than mere inadvertence. There is thus existing a differentiation between the two expressions -whereas inadvertence is a milder form of negligence, negligence'' by itself mean and imply a state of mind where there is no regard for duty or the supposed care and attention which one ought to bestow. Clerk and Lindsell on Torts (18th Ed.) sets out four several requirements of the tort of negligence and the same read as below: (1) the existence in law of a duty of care situation, i.e. one in which law attaches liability to carelessness. There has to be recognition by law that the careless infliction of the kind of damage in suit on the class of person to which the claimant belongs by the class of person to which the defendant belongs is actionable; (2) breach of the duty of care by the defendant, that is failed to measure up to the standard set by law; (3) a causal connection between the defendant''s careless conduct and the damage; (4) that the particular kind of damage to the particular claimant is not so unforeseeable as to be too remote.''

While the parent owes his child, a duty of care in relation to the child''s physical security, a teacher in a school is expected to show such care towards a child under his charge as would be exercised by reasonably careful parent. In this context, reference may be made to a decision of Tucker, J. in Ricketts v. Erith Borough Council and Anr., 1943(2) all ER 629, as also the decision of the Court of Appeal in Prince and Anr. v. Gregory and Anr., 1959 (1) WLR 177. Duty of care varies from situation to situation -whereas it would be the duty of the teacher to supervise the children in the playground but the supervision, as the children leave the school, may not be required in the same degree as in the play -field. While it is true that if the students are taken to another school building for participation in certain games, it is sufficient exercise of diligence to know that the premises are otherwise safe and secure but undoubtedly if the students are taken out to playground or a river for fund and swim, the degree of care required stands at a much higher degree and no deviation therefrom can be had on any Court whatsoever. Mere satisfaction that the river is otherwise safe for swim by reason of popular sayings will not be a sufficient compliance. As a matter of fact the degree of care required to be taken specially against the minor children stands at a much higher level than adults : children need much stricter care."

THIS decision was rendered in a case where school teachers, who were on duty to take care of the children, and due to their lapse of care, 14 children drowned, who went for extra curricular activities for the school. The Apex Court held that due care should have been taken by the teachers as the children had gone for fun trip and due to carelessness of the teachers, the children had drowned and that school has vicarious liability, which is derived from the relationship of master and servant in the course of employment.

IT is submitted by the learned Counsel that this judgment is directly applicable to the case on hand as there was lapse of duty in taking care of the patient, who needed special attention and extra care as he was suffering from alcoholic psychosis. The patient committed suicide only due to petitioner''s lapse of duty and hence the revision petition should be dismissed.

WE have perused the record and the judgments of the State Commission and District Forum. In our view, the petition requires to be dismissed for the following reasons: Firstly, the patient was allowed to move away on his own from the ward, where he was admitted, to another empty ward, which escaped the notice of the nurses and ward boys of the hospital. Admittedly, he hung himself with the lungi to the cross bar which was not even noticed by the staff but the co -patients. As evaluated by themselves the diagnosis of the patient required the hospital staff to take extra care to deal with an alcoholic mentally psychosis patient, and despite the patient has come under the custody of the hospital, the required degree of care has not been shown.

THE Apex Court''s judgment, as referred to earlier, directly applies to this matter because there was lapse of duty by the nursing staff in allowing the patient to move around. In the deposition given by the Superintendent of the Hospital, there is a clear mention that the. patient needs care and would be under the control of the hospital as the doctor cross -examined the patient''s status as under: "Q: The patient was diagnosed by psychosis and Ganja addiction. He was in difficult inadequate sleep showing unusual gestures and behavioural changes. Doesn''t the nature of illness require close watching and monitoring? A: Yes. Q: Shouldn''t you have specifically instructed the staff? A: Yes. Q. Who is having the responsibility for giving direction to watch the patient? A: The doctor who treats the patient. No separate nurse is allotted. Q: Wife instructed to be with the patient. It is in a different ink, isn''t it? A: Yes. There is a slight difference in the colour of the ink. Q: The complainant was never allowed to visit the patient except during the visiting hours? No. She was never instructed to be with the patient? A: Yes. Q: The intake form (consent form) was signed by Mr. Sunny? A: Yes. Q: Did you give written instruction to the wife of the patient to be with the patient? A: No."

IN view of the admissions by Medical Superintendent Mr. Alex Paul in the cross -examination, we are of the view that the hospital never instructed the wife of the deceased that the patient should be accompanied continuously. Respondent No. 1 -wife made a statement that she was never instructed by anyone to be with the patient, and there is no reason to disbelieve her.

WITH the above admission of Dr. Paul, we find that he has instructed the respondent No. 1 in different ink, shows that it is a manipulated record hence there is no reason to disbelieve the version of the respondent that she being the wife of the patient was not allowed to remain with the patient in the hospital and that no one instructed her to be with the patient all the time.

THE Nurse''s Daily Record [Exhibit R.1 (D)] shows that on7.5.2000, "the patient refused to eat lunch and breakfast" as noted at 3 p.m. by the nurse. It is mentioned by her that patient''s brother visited him. On 8.5.2000, she noted that at 2.25 p.m. "he was found hanging by lungi, lowered the body by co -patients immediately and informed duty doctor". Nowhere she has mentioned the presence or absence of the wife of the patient. If the instructions are given that wife should always be present, then the nurse should have mentioned in the record accordingly. The patient has not had food till 3 p.m. previous day itself shows the mood swing of the patient and the very next day he hung himself. News of this incident was brought to the notice of the nurse by the co -patients and not the hospital staff, which shows their lackadaisical attitude. Mere mention by the petitioner that the hospital is not an asylum to monitor the patient continuously cannot be accountable and is a baseless averment because a patient, who is alcoholic psychosis and drug addicted needs extra care and constant watch as they have suicidal tendency.

MR . Varghese Mathai was 24 years old at the time of death and his young widow and a minor child are left behind without any income or livelihood. Both District Forum and State Commission considered the evidence on record and allowed the complaint. No reason to interfere with the well revised order of the State Commission.

CONSIDERIN G the facts and circumstances of the case, we find that there is a clear -cut deficiency and negligence on the part of the petitioner, and hence, the petition is dismissed. R.P. dismissed.