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Judgment
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M. Shreesha, Member
Aggrieved By The Order Dated 09.01.2012 In Op No. 87/99 Passed By The State Consumer Disputes Redressal Commission, Kerala (In Short "The State Commission"), The Opposite Parties 1 To 3 Preferred This Appeal Under Section 19 Of The Consumer Protection Act, 1986 (In Short "The Act"). By The Impugned Order, The State Commission Has Partly Allowed The Complaint Directing The Opposite Parties 1 To 3, Jointly And Severally, Liable To Pay To The Complainants A Sum Of Rs.15,00,000/- By Way Of Compensation With Future Interest @ 9% P.A., Along With Costs Of Rs. 10,000/-.
Briefly Put, The Facts In The Instant Case Are That The First Complainant, The Husband Of The Deceased Patient, Vasanthakumari, Who Was Pregnant, Admitted His Wife, In The Second Opposite Party Hospital, On 21.07.1997 As Advised By The First Opposite Party. On 24.07.1997, The Patient Vasanthakumari, Was Given Gynetocia/Pitocine, An Oxytocine To Induce Labour. She Delivered A Female Baby On 24.07.1997 At 7.08 Pm And Post-Delivery, The Patient Complained Of Chest Pain. It Is Pleaded By The Complainant That Neither The First Or The Third Opposite Party Or Any Doctor Of The Hospital Were Present To Attend To The Patient, Post-Delivery, Particularly, When The Patient Was Suffering From Chest Pain; There Was Over-Writing And Correction Of Time As 1.40am From 1.45am; The First Opposite Party Came To The Hospital Only At 9.30pm And Examined The Patient. He Prescribed 'Ranitidine' Injection And Suggested That The Pain Was Only Due To Gas Trouble And Again Left The Hospital Without Suggesting Any Further Tests/Ecg, Etc. Thereafter, The Condition Of The Patient Deteriorated And The Duty Nurses Informed The First Opposite Party Over Phone, But He Did Not Chose To Attend To The Patient Immediately, But Came To The Hospital Only After Getting The Information That The Patient Had Passed Away, I.E. At 1.45am On The Morning Of 25.07.1997.
The First Opposite Party Averred That He Came To The Hospital And Saw The Patient At About 9.15pm On 24.07.1997 And Prescribed Some Medicines And Again Came To The Hospital At Around Midnight And Enquired About The Patient; The Patient Was Not Having Any Complaint And Was Resting; That At About 1.20am On 25.07.1997, The Patient Complained Of General Weakness; The First Opposite Party And The Third Opposite Party Reached The Hospital Immediately And Saw The Patient Collapsing And Gasping; On Seeing Signs Of Pulmonary Oedema, They Gave Oxygen Supply And Drip To The Patient And Thereafter External Cardiac Massage Was Tried, But The Patient Could Not Be Revived And Passed Away At 1.45 Am. Further, The Nurses' Notes Reveal That The Patient Was Given Oxygen Inhalation At 1.30am On 25.07.1997 And Within A Short Span Of 15 Minutes Or So, The Patient Died At 1.45am. The Nurses' Notes Further Reveal That The B.P. Was Recorded Every Half-An-Hour, Till 12 O' Clock In The Night; And That After Administering 'Ranitidine' Injection, The Patient Was Relieved From Chest Pain. It Is Averred That There Is No Requirement Of And It Is Not The Practice To Record Such Negative Evidence, But Only If The Pain Persisted, Then The Complaint Needs To Be Recorded To Proceed Further Medication Or Investigation.
It Is Pleaded That It Was A Clear Case Of Death Due To 'Acute Left Ventricular Failure'; That Though The First Opposite Party Insisted For Post-Mortem To Rule Out Suspicion, If Any, Yet The Relatives Of The Deceased Patient, Did Not Permit The Same. It Is Also Stated That The First Delivery Of The Deceased Patient Took Place In The Opposite Party Hospital And The Complainant As Well As His Wife, I.E., The Deceased Patient Knew Very Well That The Hospital Did Not Have Any Ecg Facility And In Spite Of That, The Complainant And His Wife Approached The Opposite Party's Hospital For The Second Delivery And Thus, It Is Only An 'Act Of God' And Not Because Of The Negligence Of The First Or Third Opposite Party That The Patient Had Passed Away.
Heard Both Sides At Length. Learned Sr. Counsel Appearing For The First Opposite Party Vehemently Contended That The Delivery Was Smooth; Was Without Any Hindrance And Was Conducted At 7.08 Pm On 24.07.1997 After Inducing Labour. He Submitted That The Patient Delivered A Female Baby And Thereafter At 9.30 Pm, The First Opposite Party Examined The Patient Who Complained Of Chest Pain. Learned Sr. Counsel Pointed Out From The Treatment Record That, On Examination, The General Condition Was Good, Pulse Was 64/Minute And Injection Ranitidine 1 Ampule Was Given By Iv Together With Injection Largetel. It Was Recorded In The Doctor's Notes On 25.07.1997 That The Patient Collapsed And Expired At 1.45 Am, 'With Acute Left Ventricular Failure', Despite Best Efforts By The Treating Doctors. The Delivery Was Conducted By The Third Opposite Party, Dr. Suma Dhanraj And When The Patient Complained Of Chest Pain, She Was Examined By Dr. P.V. George, First Opposite Party. Learned Sr. Counsel For The First Opposite Party Vehemently Contended That The State Commission Has Erred In Observing That The Bp Was Not Taken After 9.30 Pm Or That The Patient's Complaint Of Chest Pain Was Not Adhered To. He Drew The Attention Of The Bench To The Case Sheet Notes Exhibited As B1 And Also The Doctor's Notes Stating That The Patient's Bp Was Recorded Every Half-An-Hour, Till 12 O' Clock In The Night.
On A Pointed Query From The Bench Regarding Four Local Calls Made By The Duty Nurse, The Learned Sr. Counsel Submitted That It Cannot Be Construed That All Four Calls Were Between The Time Period 9.30pm And 1.40am And That The State Commission Has Erred In Concluding That Though The Doctor Has Received All The Calls, Yet, Did Not Visit The Patient. He Further Submitted That The Fourth Opposite Party Never Deposed In Their Affidavit That Further Investigation Or Consultation With The Specialist Or With The Cardiologist Was Required. The Finding That The Patient Was Having Persistent Chest Pain Even After Administering The Ranitidine Injection, Is Not Supported By Any Evidence. It Was A Case Of Abrupt And Sudden Collapse For Which The Treating Doctors Cannot Be Made Liable. He Further Submitted That As Per Standard Protocol, 'Ranitidine' Injection Was Given At 9.30pm And Even At 12 O' Clock When The First Opposite Party Came To The Hospital To Enquire The Situation Of Another Patient, He Also Enquired About The Situation Of This Patient And Therefore, The Finding Of The State Commission That There Was Chest Pain On 24.7.1997 And That The Opposite Party Knew Nothing About This Is Misconceived.
The Facts Not In Dispute Are That The First Delivery Of The Patient Was Also In The First Opposite Party Hospital And, Therefore, The Treating Doctors Knew The Patient's History And Condition. It Is Also Not In Dispute That The Delivery Took Place At 7.08 Pm And A Female Baby Was Born. The Main Point For Consideration Is, Whether, The Standard Protocol Was Followed By The Treating Doctors, When The Patient Complained Of Chest Pain At 9.30pm Immediately After The Delivery, And If So, Had The Doctors Had Attended To Her Between 9.30 Pm And 1.40am, It Would Have Led To The Saving Of The Patient's Life.
Whether The Treating Doctors And The Hospital Were Negligent Or Not Has To Be Seen On The Touchstone Of What The Hon'ble Supreme Court Has Laid Down In A Catena Of Judgments.
A Three-Judge Bench Of The Hon'ble Supreme Court In Dr Laxman Balkrishna Joshi V Dr Trimbak Bapu Godbole Stipulated That The Standard To Be Applied By A Medical Practitioner, Must Be Of A "Reasonable Degree Of Care". It Further Held As Under :-
" 11. The Duties Which A Doctor Owes To His Patient Are Clear. A Person Who Holds Himself Out Ready To Give Medical Advice And Treatment Impliedly Undertakes That He Is Possessed Of Skill And Knowledge For The Purpose. Such A Person When Consulted By A Patient, Owes Him Certain Duties Viz., A Duty Of Care In Deciding Whether To Undertake The Case, A Duty Of Care In Deciding What Treatment To Give Or A Duty Of Care In The Administration Of That Treatment. A Breach Of Any Of Those Duties, Gives A Right Of Action For Negligence To The Patient. The Practitioner Must Bring To His Task A Reasonable Degree Of Skill And Knowledge And Must Exercise A Reasonable Degree Of Care. Neither The Very Highest Nor A Very Low Degree Of Care And Competence Judged In The Light Of The Particular Circumstances Of Each Case Is What The Law Requires (Cf. Halsbury's Laws Of England 3rd Edn. Vol. 26 P. 17).
In Jacob Mathew V State Of Punjab, A Three-Judge Bench Of This Court Upheld The Standard Of The Ordinary Competent Medical Practitioner Exercising An Ordinary Degree Of Professional Skill, As Enunciated In Bolam (Supra). The Court Held That The Standard Of Care Must Be In Accordance With "General And Approved Practice".
In Arun Kumar Manglik Vs. Chirayu Health And Medicare Private Limited & Anr., (2019) 7 Scc 401 , The Hon'ble Supreme Court, Has Laid Down That ' O Ur Law Must Take Into Account Advances In Medical Science And Ensure That A Patient-Centric Approach Is Adopted' .
A Perusal Of The Hospital Treatment Record Of The Patient Shows That The Death Had Occurred Due To 'Acute Left Ventricular Failure'. It Is An Admitted Fact That The Patient Complained Of Chest Pain At 9.30 Pm And The Nurses' Progress Report, I.E., Exhibit A-5, Does Not Show That Any Of The Treating Doctors Had Attended To The Patient Between 9.30pm And 1.40am, By Which Time, The Patient Had Expired. The Contention Of The Learned Sr. Counsel Appearing For The Treating Doctors That The First Opposite Party Had Enquired About The Patient And Visited Her Around 12 O' Clock In The Night, Is Not Substantiated By Any Documentary Evidence. The Treatment Record Also Does Not Evidence That Any Instructions Were Given To The Nurses About The Patient's Condition. On A Pointed Query From The Bench As To Whether The Nursing Home Was Equipped With An Ecg, As The Case Dates Back To 1997, Ld. Sr. Counsel Appearing For The Treating Doctors Stated That The Nursing Home Was Not Equipped With An Ecg. When A Patient Complains Of Chest Pain, Taking An Ecg As Per The Medical Literature Is The Standard Protocol And If The Hospital/Nursing Home Is Not Equipped With It, At Least, The Patient Should Have Been Referred To Another Centre.
The Nurses' Notes Or The Treatment Record Does Not Anywhere Evidence That An Ecg Was Even Suggested Or Prescribed When The Patient Was Complaining Of Chest Pain, Post-Delivery And Had High Bp Recordings. It Is Pertinent To Note That The Gynecologist Deposed That In Case A Patient Was Suffering From Labour Pain And Was Induced By Oxytocine, The Following Precautionary Measures Have To Be Taken, Namely, Monitoring Of Bp, Pulse Rate, Foetal Heart Rate And Assessment Of Progress Of Labour. Therefore, When Admittedly, The Patient Was Having High Bp And The Patient Complained Of Chest Pain And Head-Ache, It Is Significant To Mention That Not Only The Ecg Was Not Prescribed, The Patient Was Not Even Referred To A Higher Management Centre, For Better Administration, As Admittedly, The Nursing Home Was Not Equipped With Ecg. Therefore, We Are Of Considered View That The Standard Protocol To Be Followed When The Patient, Post-Delivery, Complains Of Chest Pain, Was Not Followed, Hence, We Hold That The Treating Doctors Were Negligent In Not Following The Standard Norms Of Normal Medical Parlance And Not Adhering To The Duty Of Care, As Laid Down By The Hon'ble Supreme Court In The Afore-Noted Judgments.
Now, We Address To Ourselves To The Contention Of The Learned Sr. Counsel That There Was Continuous Monitoring Of The Patient Between 9.30pm And 1.40 Am. This Contention Is Not Substantiated By Any Evidence As Can Be Seen From The Nurses' Notes, The Treatment Record And Also The Deposition Made By The Doctors. It Is Relevant To Mention Here That The Doctors Did Not Deny That The Duty Nurses Called Him At Least Four Times In The Night. The Onus Is On The Treating Doctors To Prove, When The Telephone Calls Were Made And His Reply To The Same, Which They Have Failed To Discharge. It Is Not The Case Of The Treating Doctors That The Patient Was At High Risk Or That She Was Suffering From Other Complications Which Led To The Cause Of Death.
Now We Address To Ourselves To The Compensation Awarded By The State Commission. The Ld. Sr. Counsel For The Opposite Parties Vehemently Contended That The State Commission Has Erred In Awarding Compensation Of Rs.15,00,000/- And Also Future Interest @ 9% P.A.
The Hon'ble Supreme Court In Arun Kumar Manglik (Supra) Has Further Held, As Under :-
"53. The Complainant Has Lost His Spouse, Who Was 56 Years Of Age. Though She Was Not Employed, It Is Now Well Settled By A Catena Of Decisions Of The Hon'ble Supreme Court That The Contribution Made By A Non-Working Spouse To The Welfare Of The Family Has An Economic Equivalent.
In Lata Wadhwa V State Of Bihar, (2001) 8 Scc 197 A Three Judge Bench Of This Court Computed Damages To Be Paid To Dependants Of Deceased Persons As Well As Burn Victims In The Aftermath Of A Fire At The Factory Premises. The Court Took Into Consideration The Multifarious Services Rendered To The Home By A Home-Maker And Held The Estimate Arrived At Rs. 12,000 Per Annum To Be Grossly Low. It Was Enhanced To Rs. 36,000 Per Annum For The Age Group Of 34 To 59 Years.
In Malay Kumar Ganguly V Sukumar Mukherjee,(2009) 9 Scc 221, This Court Has Thus Held As Under :
"172. Loss Of Wife To A Husband May Always Be Truly Compensated By Way Of Mandatory Compensation. How One Would Do It Has Been Baffling The Court For A Long Time. For Compensating A Husband For Loss Of His Wife, Therefore, The Courts Consider The Loss Of Income To The Family. It May Not Be Difficult To Do When She Had Been Earning. Even Otherwise A Wife's Contribution To The Family In Terms Of Money Can Always Be Worked Out. Every Housewife Makes A Contribution To His Family. It Is Capable Of Being Measured On Monetary Terms Although Emotional Aspect Of It Cannot Be. It Depends Upon Her Educational Qualification, Her Own Upbringing, Status, Husband's Income, Etc." Thus, In Computing Compensation Payable On The Death Of A Home-Maker Spouse Who Is Not Employed, The Court Must Bear In Mind That The Contribution Is Significant And Capable Of Being Measured In Monetary Terms.
In Assessing The Amount Of Compensation, We Have Been Guided By The Principle Which Has Been Laid Down By The Constitution Bench Of This Court In Lata Wadhwa Vs. State Of Bihar, (2001) 8 Scc 197 And In National Insurance Company Ltd. V Pranay Sethi, (2017) 16 Scc 680 With Suitable Modifications In A Case Involving Medical Negligence.
In Our View, The Interests Of Justice Would Be Met, If The Amount Of Compensation Is Enhanced".
At This Juncture, We Find It A Fit Case To Also Rely Upon Krishna Kumar Vs. State Of Tamil Nadu & Ors. , (2015) 9 Scc 388 Wherein The Hon'ble Supreme Court, While Deciding The Amount Of Compensation Has Observed That The Principal Of ' Restitutio In Integrum' Should Be Followed. In The Instant Case, The Complainant Had Lost His Wife And The Children Have Lost The Love And Affection Of Their Mother For Which The Awarded Compensation Of Rs.15,00,000/- Meets The Ends Of Justice.
Therefore, For All Afore-Noted Reasons, We See No Substantial Ground To Interfere With The Well-Considered Order Of The State Commission. Hence The First Appeals Preferred By The Opposite Parties 1 To 3 Are Dismissed.
In Compliance Of The Order Dated 18.09.2012, The Appellants Had Deposited An Amount Of Rs.5,00,000/- With The State Commission. Once Again, Vide Order Dated 27.02.2014, At The Time Of Admission, The Appellants Were Further Directed To Deposit A Sum Of Rs.5,00,000/- With This Commission, With A Direction That On Deposit Of This Additional Amount, It Would Be Open To The Complainants To Withdraw A Sum Of Rs.2.5 Lakhs Each, On Furnishing An Undertaking To Refund The Same, If So Directed.
The Balance Amount, Along With Accrued Interest, If Any, Shall Stand Released To The Complainant No.1. Needless To Add, The Amount So Deposited Vide Afore-Noted Orders And /Or Released To The Complainant No.1 Shall Stand Adjusted In The Decretal Amount.
The Statutory Amount Deposited With This Commission Shall Stand Released To The Complainant No. 1 Along With Interest Accrued, If Any.