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SUPREME COURT OF INDIA
UDAY UMESH LALIT, INDU MALHOTRA, JJ.
Maharaja Agrasen Hospital & Ors – Appellants
Versus
Master Rishabh Sharma & Ors – Respondents
Civil Appeal No. 6619 of 2016 with Civil Appeal No. 9461 of 2019 (Arising out of Diary No. 15393 of 2019)
Decided On : 16-12-2019
(a) Indian Medical Council (Professional Conduct, Etiquettes and Ethics) Regulations, 2002 - Regulations 1.3.2, 7 and 8 - Providing medical records on request - Every doctor/hospital obliged under Regulation 1.3.2 to provide the same within 72 hours of the request being made by the patient - Failure to do so constitutes professional misconduct under Regulation 7 rendering him/her liable for disciplinary action and punishment under Regulation 8 - Instantly records made available after inordinate delay of two years - Grave professional misconduct under Regulation 7. (Para 11)
(b) Consumer Protection Act, 1986 - Section 21 (a)(i) r/w Regulations 1.3.2, 7 and 8, Indian Medical Council (Professional Conduct, Etiquettes and Ethics) Regulations, 2002 - Violation of Regulations 1.3.2 - Gross deficiency in service on the part of the Appellant No.1-Hospital and its management. (Para 11)
(c) Medical negligence - Doctors failing to observe protocol for medical care of pre mature baby - Resulting in complete blindness of the child - Doctors held guilty of gross medical negligence. (Para 11)
(d) Administration of justice - Expert opinion - Advisory in nature - Court not bound by evidence of an expert. (Para 11)
(e) Consumer Protection Act, 1986 - Section 21 (a)(i) - Doctors never advising or guiding parents of the child about the possibility of occurrence of ROP in him - Gross deficiency. (Para 11)
Consumer Protection Act, 1986 - Section 21 (a)(i) - On account of the negligence of the Appellants 2 to 4, the disease remained undiagnosed - Could be diagnosed only when it became irreversible and the child became totally blind - Gross medical negligence and deficiency in service - Giving rise to actionable claim. (Para 11)
(f) Consumer Protection Act, 1986 - Section 21 (a)(i) - Hospital liable for medical negligence of its doctors and for its deficiency in service - Hospital vicariously liable for acts of negligence committed by doctors engaged or empanelled to provide medical care. (Para 11)
(g) Consumer Protection Act, 1986 - Section 21 (a)(i) - Law of torts - Restitutio in integrum - Compensation for medical negligence and deficiency in service - National Commission awarding damage of Rs.64,00,000/- - Total compensation enhanced to Rs.76,00,000/- with directions for its utilization. (Para 11)
Facts of the case:
The present Civil Appeals arise out of a complaint of medical negligence made by Respondent Nos. 1 to 3 – the Complainants against the Appellant No.1 – Hospital and Appellant Nos. 2 to 4 – the Paediatricians and Ophthalmologist Doctors working with the Appellant No.1-Hospital, and Respondent No.4- the Gynaecologist, before the National Consumer Disputes Redressal Commission.
The National Commission vide Judgment and Order dated 10.05.2016 (“impugned Judgment”) allowed the consumer complaint, and held the Appellant No.1 – Hospital, and Appellant Nos. 2 to 4 – Doctors guilty of medical negligence, since they failed to carry out the mandatory check up of Retinopathy of Prematurity on Respondent No.1-Master Rishabh, who was a pre-term baby, which led to his total blindness. In so far as Respondent No.4- Dr. Rama Sharma, the Gynaecologist is concerned, who had delivered the baby, she was exonerated by the National Commission, and has not been pressed before this Court.
Finding of the Court:
The Appellants as being jointly and severally liable to pay compensation to the Complainants.
Result: Civil Appeal No. 9461 of 2019 allowed and Civil Appeal No. 6619 of 2016 dismissed.
JUDGMENT :
INDU MALHOTRA, J.
1. The present Civil Appeals arise out of a complaint of medical negligence made by Respondent Nos. 1 to 3 – the Complainants against the Appellant No.1 – Hospital and Appellant Nos. 2 to 4 – the Paediatricians and Ophthalmologist Doctors working with the Appellant No.1-Hospital, and Respondent No.4- the Gynaecologist, before the National Consumer Disputes Redressal Commission (hereinafter referred to as the “National Commission”).
2. The National Commission vide Judgment and Order dated 10.05.2016 (“impugned Judgment”) allowed the consumer complaint, and held the Appellant No.1 – Hospital, and Appellant Nos. 2 to 4 – Doctors guilty of medical negligence, since they failed to carry out the mandatory check up of Retinopathy of Prematurity (“ROP”) on Respondent No.1-Master Rishabh, who was a pre-term baby, which led to his total blindness. In so far as Respondent No.4- Dr. Rama Sharma, the Gynaecologist is concerned, who had delivered the baby, she was exonerated by the National Commission, and has not been pressed before this Court.
3. Aggrieved by the impugned Judgment passed by the National Commission, the Appellant No.1- Maharaja Agrasen Hospital, a super speciality hospital, Appellant No.2 -Dr. G.S. Kochhar and Appellant No.3- Dr. Naveen Jain, the Consultant Paediatricians working for the Appellant No.1 – Hospital, and Appellant No.4-Dr. S.N. Jha, the Senior Consultant Ophthalmologist working for the Appellant No.1-Hospital have filed Civil Appeal No. 6619 of 2016.
4. Respondent No.1-Master Rishab Sharma, is the child-patient, who was Complainant No.1 before the National Commission, and was represented by his widowed mother Pooja Sharma – Respondent No.2/the Complainant No.2. Respondent No.3 is the elder brother of Respondent No.1.
The Complainants have filed Civil Appeal No. 9461 of 2019 (Diary No. 15393 of 2019) before this Court for further enhancement of the compensation awarded by the National Commission.
5. The background facts in which the present Civil Appeals have been filed are as under:-
5.1 Respondent No.2-Pooja Sharma – the Complainant No.2 was under the ante-natal care of Respondent No.4-Dr. Rama Sharma at Sharma Medical Centre since September 2005.
5.2 On 02.04.2005, at about 5.30 p.m., the Respondent No.2 had to undergo a caesarean section in view of the condition of Placenta Previa. The baby-Respondent No.1 was born pre-term at 32 weeks’ gestation, with a weight of 1.49 kg at the time of birth.
5.3 On the same day, at about 8:30 p.m., Respondent No.4- Dr. Rama Sharma, the Gynaecologist referred the case for intensive care to Maharaja Agrasen Hospital- Appellant No.1.
At the time of admission, the general condition of the baby was poor, and was diagnosed as “32 weeks pre-term AGA with HMD”. The baby was treated in the Neo-natal ICU of the Paediatrics Unit and was put on ventilatory support, and Surfactant injections were administered gradually.
5.4 The Respondent No.1-baby stayed in the Appellant No.1-Hospital for almost 4 weeks, and was discharged on 29.04.2005, which was 27 days after birth.
The Discharge Slip issued by the Appellant No.1-Hospital to the Complainants reads as follows:
“Maharaja Agrasen Hospital
Punjabi Bagh, New Delhi-110026, Ph. 25106645 to 54
DISCHARGE SLIP
Hospital No. 505404. Ward: NICU Deptt./Unit: Paed-III.
Name: B/O. Pooja Sharma Age/Sex NB/M.
Date of Admission: 02.04.2005 at 8.30 p.m.
Date of Discharge: 29.04.2005
Diagnosis: PT (32) with HMD with Neonatal Hyperbil with B/L Pneumothorax Fungal Septicemia.
Condition at time of discharge: Satisfactory.
Consultants: Dr. G.S.Kochar /Dr. N. Jain
DOB: 02.04.2005.
Sex: Male.
Birth weight: 1.49 kg.
Weight at discharge: 1.56 kg.
Mode: Emergency LSCS for placenta previa.
FOLLOW UP ADVICE:
• Syp. Taxim O 1 ml BD x 5 d.
• Syp. Osteocalcium TDS.
• Drops Visyneral Z 0.3 ml OD.
• Drop Vitcofol 5 drops OD.
• Drop Evion 5 drops OD
• To review in Pea
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