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SUPREME COURT OF INDIA
Dhananjaya Y. Chandrachud, Hemant Gupta, JJ.
Nand Kishore Prasad – Appellant
Vs.
Dr. Mohib Hamidi & Others – Respondents
Civil Appeal No. 4619 of 2019 (@ SLP(C) No. 34834 of 2015)
Decided On : 10-05-2019
(A) Consumer Protection Act, 1986 – Sections 2(1)(g), 2(1)(o) and 14(1)(d) – Medical services – Medical negligence – Death of patient – Recorded history of patient is complaint of pain in abdomen, fever and hemorrhage in both eyes for past five days – However, there is no evidence of critical condition of patient to be operated upon even with low platelet count – Surgery to remove round worms is not proved to be of immediate necessity to save life of a patient who had critical platelet count – In absence of any evidence that surgery was only life-saving option available at that time, action to operate upon patient cannot be said to be prudent decision – It is a case of unreasonable decision of Operating Surgeon to operate and not a case of bit negligent so as to absolve Surgeon from allegation of medical negligence – Finding of NCDRC to that extent set aside. (Paras 12 and 14)
(B) Consumer Protection Act, 1986 – Section 14(1)(d) – Medical services – Medical negligence – Death of patient – Compensation has to be calculated on the basis of twin criteria of age and income – But in absence of income of father or family, there is no legally acceptable norm available on record for enhancement of compensation – SCDRC has awarded a sum Rs.4,00,000/- as compensation payable by Hospital and Rs.2,00,000/- by Operating Surgeon – NCDRC found a sum of Rs. 4,00,000/- as just compensation and absolved Operating Surgeon from any liability – When SCDRC has awarded a sum of Rs. 6,00,000/- as compensation, NCDRC should not have interfered with amount of compensation but could apportion amount of compensation payable by Operating Surgeon to Hospital as liability of Hospital to pay amount of compensation is vicarious as death has occurred during course of employment of Operating Surgeon with Hospital – Entire amount of Rs.6,00,000/- is payable by Hospital which would be just compensation in facts and circumstances of present case. (Paras 17, 18 and 19)
Facts of Case:
Case of medical negligence. challenge in the present appeal is to an order passed by the National
Consumer Disputes Redressal Commission1 on 02.11.2015 whereby original Opposite Party No. 3 (Respondent No. 1 herein) was absolved of the damages of Rs. 2,00,000/- imposed by State Consumer Disputes Redressal Commission vide order dated 12.11.2014.
Findings of Court:
SCDRC has awarded a sum Rs.4,00,000/- as compensation payable by the Hospital and Rs.2,00,000/- by the Operating Surgeon. NCDRC found a sum of Rs. 4,00,000/- as just compensation and absolved the Operating Surgeon from any liability. When SCDRC has awarded a sum of Rs. 6,00,000/- as compensation, the NCDRC should not have interfered with the amount of compensation but could apportion the amount of compensation payable by Operating Surgeon to the Hospital as the liability of Hospital to pay the amount of compensation is vicarious as the death has occurred during the course of employment of Operating Surgeon with the said Hospital.
Result : Appeal Partly allowed.
JUDGMENT :
Hemant Gupta, J.
The challenge in the present appeal is to an order passed by the National Consumer Disputes Redressal Commission [NCDRC] on 02.11.2015 whereby the original Opposite Party No. 3 (Respondent No. 1 herein) was absolved of the damages of Rs. 2,00,000/- imposed by State Consumer Disputes Redressal Commission [SCDRC] vide order dated 12.11.2014.
2. Sanjay Kumar aged about 15 years, son of the Appellant complained of abdominal pain, fever and haemorrhage in both eyes. Initially, the Appellant had taken his son to a physician Dr. Arun Tiwari on 08.11.1995 who advised some tests and medicines. He was advised to consult with the specialist as well. After examining the blood report, Dr. Arun Tiwari referred the patient to the Kurji Holy Family Hospital-original Opposite Party No. 1 on 10.11.1995. He was taken to the Hospital at about 8.00 PM. The recorded history of the patient is as under:
“A 15 years old male patient is admitted in 3A-7 with the complaints of fever, pain abdomen and hemorrhage from both eyes since 5 days.”
3. The patient was operated upon on 11.11.1995 when the platelets count was 35000 per cubic millimeter (cu.mm) at about 11.15 AM. Before the surgery, the patient was transfused with two units of blood and after the surgery another two units of blood were transfused. Since the patient was bleeding and in spite of packing of leakages, the relatives of the patient took discharge from the Kurji Holy Family Hospital at about 2.00 PM on 13.11.1995. On the same date, the patient was admitted to Patna Medical College and Hospital (PMCH) where the patient died on 16.11.1995.
4. In consumer complaint under the Consumer Protection Act, 1986 [1986 Act], the Appellant produced an affidavit of Dr. Hare Ram Singh, then posted in Jharkhand State Assembly at Russian Hostel, Dhurwa, P.S. Jaganathpur, District Ranchi. Dr. Hare Ram Singh opined that Bleeding Time (BT) was 3’ 00” against normal value of 2-4 seconds and Clotting Time (CT) was 5’ 00” against normal value of 3-6 seconds. The affidavit further states that there was a second test which shows that the platelets decreased excessively and there were very few plasma cells present. There was another test conducted before surgery, showing platelets count as 35000 per cu. mm. Dr. Hare Ram Singh was of the opinion that to operate the patient with excessive low platelets count was the greatest blunder and clear case of extreme negligence of doctors.
5. The surgery was performed on 11.11.1995 at about 11.15 AM. The postoperative note of the operating team reads as under:
“Name(s) of Operation(s) : Exp.Lap. & Extraction of R.W.
Operative Findings: Numerous R.W. in the small gut with yellowish collection of fluid in the peritoneal cavity.
Procedure: The abdomen was opened by midline incision above and below the umbilicus. The peritoneal cavity was found to contain yellowish fluid a small amount of which was collected and sent for c/s & biomedical examination. The small gut was found to contain many round worms. They were collected at one place and extracted out by making a nick in the gut. The wound was closed in layers. A rubber corrugated drain was placed in the peritoneal cavity. The abdomen was closed in one layer by vieryl. skin was left open.”
6. Learned SCDRC found that the patient was haemophilic and not peritonitis as diagnosed by the Respondents. However, since the platelets count was 35000 per cu.mm against normal range of 1.5 lakhs to 4 lakhs per cu. mm, the Operating Surgeon was medically negligent in operating patient when the platelets count was so low. Thus, the opposite party was found negligent in carrying out surgery. The SCDRC awarded a sum of Rs. 4,00,000/- as compensation to be paid by the Kurji Holy Family Hospital-Opposite Party No.1 and Rs. 2,00,000/- by the Opposite Party No.3-Operating Surgeon with 6 percent simple interest, apart from Rs. 32,000/- as expenditure incurred in medical treatment and the litigation costs of Rs. 25,000/-. In appeal
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