Smt. Bholi Devi vs State of Jammu and Kashmir and Others

T.S. Doabia, J.—Gross medical mistake can result in a findings of negligence, being recorded. Such is the argument raised in this writ

petition.

Mst. Bholi Devi was admitted in S.M.G.S. Hospital. Jammu on 12-10-1997. It was a case of pro-lapsed uterus. She was found to be suffering

from Cystocale and Rectodele.

The fact that the petitioner came to be so admitted was sought to be established by showing the medical record i.e. admission card. She was

advised to be operated upon on 15-10-1997. As per the petitioners the pre-operative investigations were carried out by respondents NOS. 3 to

7.

The drug allergy of the patient was recorded in General case sheet. Mst: Bholi Devl was given 5 ml tablet of Diazepam at 6 A.M. on 14th Oct.

'97. As a pre-operative measure the following medicines were recommended:

(i) Tab Diazepam;

(ii) Injection Voveran;

(iii) Injection Glycopyriate.

Mst. Bholi Devl was examined on 15th Oct. '97 at 12. She was shifted to the operation theatre. She was given the Injection of Diazepam. This

led to disturbances in Blood pressure. As per the petitioners are developed Apneoa (sort of death feeling) respiratory disorder. Pulse recorded

was at 52 per minute. The Blood pressure was 90/60. The Injection which was administered was one manufactured by M/s. Patental Products,

Gangyal, Jammu. This was of 2 ml capacity. This was to be injected intra-muscular. It was however, injected intra-venous. It is this factor which

led to the feeling of apneoa. This patient is said to have been put on ventllatel at 3.10 p.m. on 15th Oct. '97. The doctors informed her husband

that the patient be taken back as the chances of her survival are minimum. She developed unconsciousness. She died later on, on 30th March '98.

Her husband and her minor children are claiming compensation. The fact that injection was to be given intra-venous is sought to be supported from

a communication dt. 25th Aug. '99. For facility of reference, this communication is being reproduced below :

Department of Anaesthesia Govt. Medical College, Jammu

.......

To

The Medical Superintendent,

S.M.G.S. Hospital,

Jammu.

Sub : Inquest proceeding relating to death of Smt. Bholl Devi W/o. Ram Chand R/o. Chatta.

No. Anaesth/99/614 dated 25-8-1999

Sir,

I am to bring to your kind notice that Mst. Bholi Devi W/o. Ram Chand MRD No. 571664/462 developed complication following inj-dlazepam in

Gynae O.T. where Dr. Ranbushan Singh, B-Grade Specialist Anaesthetist and Dr. Sandeep Kotwal, PG were working on 15-10-1997. Dr. Daljit

Singh, Professor in Anaesthesia was also present in Gynae, OT as a Senior Anaesthesia Consultant.

As reported by Anaesthetists working in Gynae O.T. that Smt. Bholi Devi was given Diazepam IV as she was very apprehensive. Inj. Diazepam is

usually used as pre-medicant in all nervous and apprehslve patients.

Inj. Diazepam allays nervousness, appre-hensiveness and thus induces sleep.

As reported by anaesthetists on duty, Smt. Bholi Devi developed cardio pulmenary arrest following severe cardiopulmonary depression after Inj.

Diazepam I. V. Like other drugs. Diazepam may cause cardic arrest though a rate complication. Cerebral Hevpokic damage following cardio-

pulmo-nary resusciation is a known Sequlae. It is further reported that IV preparation of Inj. diazepam was given to Smt. Bholi Devi in the

operation theatre.

It is further requested that any further information regarding anaesthesia pertaining to Smt. Bholi Devi W/o. Ram Chand may be enquired directly

from the Anaesthetists on duty as mentioned above. Sequence of events as reported by anaesthetists on duty on 15-10-1997 in Gynae O.T. are

enclosed herewith in original.

Yours faithfully

Sd/- Dr. B. L. Kholi, Prof, and HOD

Petitioner has also placed on record a photograph of Vial. This is marked C-1. This indicates that Injection Diazepam was meant for intra-

mascular use. It is on this basis the compensation is being claimed. Mst Bholi Devi is said to have died on 30-3-1998. This fact was brought on the

record by preferring a CMP No. 777/98.

Respondents have filed objections. The stand taken is that writ petition involves disputed questions of fact and therefore,, this writ petition

should not be entertained. The fact that Diazepam Injection was given intra-veneously is not being denied. It is stated that all due care and attention

was taken. Para 3 of the preliminary, objections is reproduced below :

That the writ petition raises disputed question of facts which cannot be gone into by the Hon'ble Court in its writ jurisdiction as the petitioner on

15th of Oct. 1997 was administered diazepami injection intravenously as the petitioner was apprehensive while she was being prepared for

undergoing operation to Cystocoel with Tectocoel for which she was suffering. However, the petitioner developed cardia arrest following sever

Cardiorespiratory depression as complication of the injection Diazepam. She was resuscitated to save her life using Oxyen therapy and other

necessary life saving drugs/measures. After the resuscitation the petitioner was shifted to intensive care unit Medical College Hospital for further

management including specialised services. Due to the reasons beyond the control of the respondents the petitioner developed an an-oxic brain

damage which is a sequalae or cardiac arrest. Her cardio respirator, status was restored with help of life support machine and other life saving

drugs. The petitioner thereafter was provided best medical facilities and she was examined by various Heads of the specialists but despite best

efforts of the answering respondents, the patient could not be revived of her complication. The patient/Smt. Bholi Devi was properly looked after

by various consultants in I.C.U. for more, than two months. As such, the writ petition on this count deserves to be dismissed outright by this

Hon'ble Court.

On merit, it is stated that the injection which was given to Bholi Devi was the one manufactured by M/s. Ranbaxy Co. and not by M/s. Parental

Products, Gangyal, Jammu. The fact that a circular came to be issued on 30-1-1998 suggesting that this type of injection should be given intra-

mascular, is said to have been issued. It is stated that it was advisory in nature. This Circular has been placed on the record as Annexure B. This is

reproduced below :

Department of Anaesthesia Govt. Medical

College, Jammu.

CIRCULAR

All the consultants /B-Grade Anaesthesia Specialists /Residents/Asstt. Surgeons of this department are directed not to use Inj, Diazepam (P. Cal

M.) manufactured by Parenteral Products, Gangyal Jammu intravenously as it is meant for intramascular use only.

All concerned to note.

Sd/-

No. Anesth/98/100-4 (Dr. G.B. Kohli)

Prof. and HOD

Dt. 2-2-98:

It is submitted that best professional services were rendered. However, the life of Bholi Devi could not be saved. The deceased had developed

an anoxic brain damage and this resulted in ultimate cardiac arrest.

Short question which is required to be gone into is as to whether the petitioners i.e. the husband and children of Smt. Bholi Devi are entitled to

be compensated and if they are to be compensated then what should be its quantum.

The fact that in a case of proven negligence compensation can be allowed even when a litigant seeks remedy under Article 226 of the

Constitution of India is concerned, there can be no two opinions. As a matter of fact in the case of Consumer Education and Research center and

others Vs. Union of India and others, their Lordships held as under :

.....It is therefore settled law that in public law claim for compensation is a remedy available under Article 32 or 226 for the enforcement and

protection of fundamental and human rights. There is no question of defence being available for constitutional remedy. It is a practical and

inexpensive mode of redress available for the contravention made by the State its servants, its instrumentalities, a company or a person is the

purported exercise of their powers and enforcement of the rights claimed either under the statutes or licence issued under the statute or for the

enforcement or any right or duty under the constitution or the law.

Earlier pronouncement in the case of Smt. Nilabati Behera alieas Lalita Behera Vs. State of Orissa and others, lays down the same principle. What

is said is quoted below at Page 1969; of AIR :

It follows that a claim in public law for compensation for contravention of human rights and fundamental freedoms, the protection of which is

guaranteed in the constitution, is an acknowledged remedy, for enforcement and protection of which is guaranteed in the constitution, is an

acknowledged remedy for enforcement and protection of such rights, and such a, claim issued on strict liability made by resorting to a constitutional

remedy provided for the enforcement of a fundamental right is distinct from and in addition to the remedy in private law for damages for the tort

resulting, from the contravention of the fundamental right. The defence of sovereign immunity being in applicants and alien to the concept of

guarantee of fundamental rights, there can be no question of such a defence being available in the constitutional remedy.....

A Division Bench of this Court in the case reported as Executive Engineer, Electricity (M and RE) Division, Awantipora, Anantnag and

Another Vs. Mohmmad Ashraf Bhat and Others, and two other decisions reported as Sagar Chand and Another Vs. State of J. and K. and

Another, and Miss Afroza (Minor) Vs. State of J. and K. and Another, , have followed the same principle and allowed compensation in case of

proven negligence. Similar view has been expressed by the two Division Benches of Orissa High Court, reported as Suka Bewa Vs. Grid

Corporation of Orissa and Others, and Smt. Golap Sewa alias Behera and Another Vs. Grid Corporation of Orissa and Another, .

Reverting back to the question as to whether negligence on the part of the Doctors can lead to grant of compensation be examined.

In an action fqr negligence in tort against a surgeon, the Supreme Court of India in the case of Dr. Laxman Balkrishna Joshi Vs. Dr. Trimbak

Bapu Godbole and Another, observed as under at Pages 131-132: of AIR:

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 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 require.

In this regard it would be relevant to refer the decision given by the Supreme Court of India in the case of Spring Meadows Hospital and

Another Vs. Harjol Ahluwalia through K.S. Ahluwalia and Another, . What is said at page 47 is reproduced below at Page 1806; of AIR :

In the case of Whitehouse v. Jordan, 1981 (1) All ER 267 an obstetrician had pulled too hard in a trial of forceps delivery and had thereby

caused the plaintiff's head to become wedged with consequent asphyxia and brain damage. The trial judge had held the action of the defendant to

be negligent but this judgment had been reversed by Lord Denning, in the Court of Appeal, emphasising that an error of judgment would not

tantamount to neglience, when the said matter came before the House of Lords, the views of Lord Denning on the error of Judgment could be

negligence if it is an error which would not have been made by a reasonably competent professional man acting with ordinary care. Lord Praser

pointed out thus :

The true position is that an error of judgment may, or may not, be negligent; it depends on the nature of the error. If it is one that would not have

been made by a reasonably competent professional man professing to have the standard and type of skill that the defendant, held himself out as

having and acting with ordinary care, then it is negligence. If, on the other hand, it is an error that such a man acting with ordinary care, might have

made, then it is not negligence.

Gross medical mistake will always result in a finding of negligence. Use of wrong drug or wrong gas during the course of anaesthetic will

frequently lead to the imposition of liability and in some situations even the principle of res ipsa loquitur can be applied. Even delegation of

responsibility, to another may amount to negligence in certain circumstances. A consultant could be negligent where he delegates the responsibility

to his junior with the knowledge that the junior was incapable or performing of his duties properly. We are indicating these principles since in the

case in hand certain arguments had been advanced in this regard, which will be dealt with while answering the questions posed by us.

The afore-mentioned principles would broadly apply to the facts of this case. Instructions had been issued to the concerned Doctors and para-

medical staff of the SHGS Hospital, not to give the injection intra-venously. This is a case where due care and attention was not exercised. On

account of this negligence the petitioners i.e. the heirs of Smt. Bholi Devi (deceased) are held entitled to the relief of compensation. Even where

there was no fault then under the concept of 'No Fault Liability' compensation can be allowed to the extent of Rs. 50.000/-. A further sum of Rs.

15,000/- under the head loss of consortium is allowed. For allowing this much amount of compensation no evidence is required. The petition does

not indicate as to what was the job undertaken by the deceased. She was a house-wife.

Taking into consideration this aspect of the matter another sum of Rs. 25,000/- is allowed to the family of the deceased. The total

compensation which is allowed is Rs.90,000/- (Rupees Ninety Thousands). Let this compensation be paid within two months from the date, copy

of the order is made available by the petitioners to the respondents. In case the compensation is not paid in the period noticed above, the

petitioners would be entitled to interest. The rate of interest would be 12% per annum.

Disposed of accordingly.