1997 Supreme(Bom) 552
IN THE HIGH COURT OF BOMBAY
A.A. Halbe, President, G.R. Bedge, Rajyalakshmi Rao, Members
Shri Nilesh S. Joshi ..... Petitioners/Complainants.
Versus
Dr. C.P. Lulla others ..... Opposite Parties.
Complaint No. 367 of 1993, decided on 17-10-1997.
Advocates appeared :
Shirish Deshpande, for the complainants.
A.M. Chimalkar, for the O.P. No. 1.
Mokashi, for the O.P. No. 2 3.
Headnote:Section 2(1)(g)-Evidence Act, 1872, Sections 3, 45 and 5-Insertion of catheter wrongly by doctor-Patient becoming spastic permanently -Negligence and deficiency-Claimed- Tests carried out with warning of risk-Held-Instance of such test inspite of already bleading complainant that too without necessary equipments amounts to negligence and deficiency in service.-Since bronchography involves the serious risk, the duty is cast upon the radiologist to take the decision that the bronchography appears to be necessary. It is better that this decision is verified by the examination of the patient by chest physician. Court is of the view that Dr. N is not an established chest physician. He seems to be a family doctor. Apart from all this court is satisfied that Dr. L did not perform the initial part of bronchography with that efficiency as it was necessary. The net result was that the simple insertion of catheter brought about bleeding from the nose and mouth of the patient. Despite this, he persisted with the insertion of the catheter and that possibly put the patiert in the State of shock causing anoxic brain damage.
Section 2(1)(g)-Negligence by consultant doctor-Liability of Hospital,.-Liability declined by Hospital-Ground-Consultant not employee of Hospital-Hospital only provided infrastructure-Held-Only the consultant doctor held liable-Court is, therefore, unable to hold that Dr. L was an employee of O.P. Nos. 2 & 3. He was being paid by O.P. No.2 and 3 in accordance to patients radiological examination. He was paid the amounts as per the work done by him. But the story about the employer and employee which was being canvassed by. Dr. L against O.P. Nos. 2 & 3 does not sustain from the documents produced in the case. Court is, therefore, unable to hold that the O.P. Nos.
2 & 3 are vicariously liable. Court is clearly giving the finding that there was deficiency in service rendered by Dr. L in the bronchography treatment of N. N has become invalid for all the purposes. The complainants, are, therefore, entitled for compensation.
Sections 3, 45 and 5-See Consumer Protection Act, 1986, Section 2(1)(g).
JUDGMENT - A.A. HALBE, PRESIDENT.:---Shri Nilesh S. Joshi, aged about 29 years with his parents Shri Sadanand Dattatraya Joshi (father) Mrs. Asha S. Joshi (mother), Mrs. Shibani N. Joshi (wife) and Master Archit N. Joshi (son) have filed this complaint against Dr. C.P. Lulla, Radiologist attached to "Diagnostic Centre Clinic, Mumbai" belonging to O.P. No. 2 3 Dr. V.T. Shah and Dr. (Mrs.) M.V. Shah for awarding of compensation of Rs. 9,99,000/- for the gross negligence in the treatment for Bronchography carried out on Nilesh Joshi on 14-3-91. Nilesh has been reduced to vegetable. He is rendered speechless, wheel-chaired, spastic who can not comprehend anything who only laughs and cries without any reason and is spending utterly meaningless and hopeless life causing considerable hardship, inconvenience and mental torture to the parent's life and other i.e. of his wife's and son's life also. Nilesh had a bright academic career and was employed with Empire Industries Ltd., Mumbai on the monthly gross salary of Rs. 3,500/- at the time of incidence. However, on account of above condition of health, he is unable to earn even a farthing. But on the other hand has become a serious financial mental burden on the family members. Nilesh was suffering from cough and was, therefore, recommended by his family-doctor Dr. M.B. Natu to Dr. Shah for the purpose of Bronchography. On 12th March, 91, Shri Joshi paid Rs. 500/- to Dr. Shah at his clinic. He was called on 14th March, 91 and accordingly, Nilesh accompanied his father Sadanand arrived at the clinic on 14th March, 91 at about 8.00 a.m. Routine health check up was conducted, urine, blood and sputum tests were also conducted and in all the tests, nothing abnormal was detected. By about 11.00 a.m., Nilesh left the clinic and reported back at about 1.00 p.m. for Bronchography. O.P. Dr. Lulla, Radiologist began with the bronchography by inserting the catheter by nasal-cavaty; but failed as there was bleeding. He inserted catheter in both the nasal cavities; but bleeding was the only response. He, therefore, inserted catheter in to the oral cavity where also bleeding took place from the mouth. On account of bleeding from both the cavities of the nose as well as from the mouth, Nilesh screamed on account of serious pain. Despite this condition, Dr. Lulla inserted the catheter through nasal-cavities and in consequence, Nilesh suffered convulsionsbouts. There arose cardiac problem and Nilesh was, therefore, shifted to Sion Hospital. He had gone into coma even before his admission to Sion Hospital. Dr. Lulla tried to obtain signature of Sadanand Joshi on the consent form; but he has strongly resisted and scratched across the consent-form. Sadanand Joshi complained to the police and Dr. Lulla also gave his written-statement to the police. These documents are on record. Nilesh was examined at the Sion Hospital and was treated as Indoor Patient from 14-3-91 to 27-3-91; whereafter he was admitted to Hinduja Hospital till upto 6-5-91. It is alleged that Nilesh suffered Anoxic Brain damage on account of the rash and negligent act on the part of Dr. Lulla in inserting the catheter through nasal cavities and oral cavity. He, however, persisted in carrying out the bronchography and in the result, the victim suffered convulsion-bouts and has become vegetable. According to the complainants, the standard procedure should have been followed. In the first instance, Nilesh was not acquainted with the risk involved in the bronchography. No written-consent was obtained. Intravenous Diazepam should have been administered and there should have been adequate sedation before intubation so as to avoid possibility of voluntary or in voluntary movement or resistance to the maneouvering of the catheter tube through the sensitive and vital respiratory tract. Opiates should have been avoided and atropine which is opiate was, on the other hand administered. The complainant has tried to describe the process of
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