Murlidhar Eknath Masane - Appellant
Versus
Sushmsha Citizen Co-op. Hospital Ltd. - Respondent
Decided On : 10/29/1994
Complaint No. 203/92
Advocates Appeared :
Mrs. S.V. Padoley,Mr. Nerlekar,Hudlika

Headnote:Consumer Protection Act, 1986 - Section 2 (o) - Medical Negligence - Complaint against - Whether a consumer dispute? - (Yes) (M/s. Cosmopolitans case: (1992) II C.P.J. 302 (N.C.) Relied upon) (Para 11)

       (ii) Consumer Protection Act, 1986 - Sections 2 & 14 - Deficiency-in service - Death of complainants son - He was under treatment of opposite parties No.1 & 2 – Doctor fully assured complainant to take care of his son for his medical treatment - Admission of patient in hospital of opposite party No. 1- Wrong medicines given to patient which were prescribed by doctor aggravated his health condition - No proper efforts made to treat patient during his serious and critical condition - Opposite parties remained unconcerned and inactive to take emergency measures – Total lack of co-ordination between hospital staff and consulting doctor in treatment of patient - Case of medical negligence in treatment of deceased by both opposite parties - Doctor is directed to pay Rs. 50,000/- towards compensation to complainant - Amount of Rs. 3 lakhs is liable to be paid by Hospital.

       Held, that there was total lack of co-ordination between the hospital staff and the consulting doctor Shri Nathan in the treatment of Amit. The insertion of Ryle Tube was done in absence of Dr. Nathan and without his consultation. Prior to the arrival of Dr. Nathan after the admission of Amit four injections were given to Amit without consulting Dr. Nathan. There arc many instances of lack of co-ordination between both the opposite parties, to treat Amit as a result of which his condition deteriorated and he met with untimely dead. There was delay in shifting Amit from his ward to I.C.U. There was also delay in putting Amit on oxygen. Timely action could have saved the life of Amit Clinical cause of death is also concealed, though on death certificate, the cause of death is written "Septicaemia". Thepossibility of Amit s death due to other cause like inadequate supply of oxygen, lungs infection, insertion of Ryle Tube, pneumonia, effect on the brain or barbiturate poison over-dose of largactyle tablet and injections cannot be ruled out. Admittedly, Dr. Chitlange was registrar of LC.U. who is not even M.B.B. S. doctor but Ayurvedic Practitioner. (Para 21)

       Further Held, that this is the typical case of medical negligence in the treatment of Amit by both the opposite parties. The life of Amit could have been saved if there was no negligence in the treatment. It is proved from the evidence, papers of Amits treatment, and certificate of Dr. S.D. Vilankar that despite the condition of Amit was causing anxiety to his father. Dr. Natl1an did not attend Amit when he was at "Krislma Nursing Home". The reason for not attending the serious patient as given out by Dr. Nathan is that being Saturday and Sunday, he was not able to attend Amit. It is not the case of Dr. Nathan that he had other engagements and therefore he was not able to attend Amit in "Krishna Nursing Home". As a doctor, Dr. Nathan was expected to exercise reasonable care and skill particularly when complications in the condition of Amit were expected. He was aware that the condition of Amit was not satisfactory and himself advised to shift Amit in the hospital of opposite party No.1 on 6.1.1992. Even on that date Dr. Nathan was not present at the appointed hours at 3.30 p.m. He arrived much leisurely after some injections were given to Amit. There is another factor to highlight the negligence of Dr. Nathan in as much as when he was aware that Amit was going to be admitted in Sushrusha Hospital it was his duty to give instructions to hospital staff for Amits treatment. There is clearly negligence on the part of Dr. Nathan since he did not arrange any coordination as regards the treatment of Amit between himself and the hospital staff. The complainant has asserted in his complaint and notice which was given to opposite party No. 1 earlier that before arrival of Dr. Nathan some injections were given to Amit. The evidence of complainants finds support from his earlier letter addressed to opposite party prior to filing of complaint. Thus, there appears to be consistency in the earliest version of complainant and his assertion in the complaint as regards giving of the injections to Amit before arrival of Dr. Nathan. We therefore believe the evidence of complainant on this point since it finds support in his earliest statement made in his letter addressed to opposite party No.2. Even after the admission of Amit Dr. Nathan visited the hospital of opposite party No.1 at the interval of 24 hours knowing full well the complications which were noticed in the condition of Amit. Although, we find that Dr. Nathan was very negligent in the treatment of Amit as medical practitioner. As an expert doctor, he did not exercise even reasonable care and skill which was expected from him to treat Amit. Hence, prior to the admission of Amit in the Sushmsha hospital we hold Dr. Nathan individually guilty of negligence and would like to direct him to pay Rs. 50,000/- towards compensation to the complainant. (Para 23)

       Consequently Held, that the services of opposite party No.1 were hired by complainant as has been proved from the payment of consideration to the hospital. In the case of Smt. Vasantha E. Nair v. M/s. Cosmopolitan Hospital Pvt. Ltd., the National Commission has clearly held that when a patient is admitted in hospital and put in charge of doctor, what really takes place is hiring of the service of doctor by the patient. If the hospital provides other services, the patient is really hiring those services also. All this is bonr out of a contract expressed or implied between the patient and the hospital, really the human taken in hospital when the hospital open its door and offer its service, the patient who goes to hospital and pays for the services is really hiring the service. In view of the proposition of law laid down by the National Commission in the aforesaid case after the admission of Amit in the hospital of opposite party No. 1 was under the contractual obligation. The opposite party No.1 was liable to take reasonable care about the treatment of Amit. We find that opposite party No. 1 hospital did not make any serious efforts to co-ordinate about the condition of Amit and no efforts were made to contact Dr. Nathan when the condition of Amit was serious. Most striking incident is that when condition of Amit was at the verge of collapse Dr. Nathan was allowed to leave the hospital by the hospital staff. No efforts were made to request Dr. Nathan to stay in the hospital to take reasonable care about the serious condition of Amt. Considering the totality of the facts and circumstances appearing in this case, opposite party No. 1 hospital proved, to be negligent in the treatment of Amit and therefore, it is liable to pay compensation to complainant. (Para 24)

       Finally Held: Lastly, we co me to claim of the complainant made in this complaint for purposes of compensation. The complainant has claimed in his complaint that Amit was the only male child and due to his death, he suffered serious mental distress and lost his heir apparent. Amit was only male person in his family to support complainant and his wife in their old age. Apart from the loss of heir apparent, the complainant also lost the support to himself and his wife in their old age. The complainant has claimed in prayer clauses, l, 2,3 (b), (c), the total amount of Rs. 44,610/- spent on primary education of Amit. In our view, this claim can not be considered for purposes of compensation as it can not be said to have been as a result of direct negligence in the service of Opposite party. The complainant has claimed Rs. 3 lacs on account of serious mental distress as lose of his son. We have given our anxious consideration to this aspect that Amit could be the bread earner for complainants family. In our view, the amount of Rs. 3 lakhs for the loss of life of Amit can be granted to complainant. However, in our view, since the death of Amit occurred in the hospital as a result of negligence during the hospitalisation period, the amount of Rs. 3 lakhs towards compensation is liable to be paid by Sushrusha Hospital. (Para 25)

       (iii) Medical Negligence - Wrong diagnosis - Whether amounts to negligence in medical treatment! - (No) (Para 13)

       (iv) Medical Negligence - If motivation of dodo is to exploit patient for purpose of earning or taking undue advantage of emergency it can be construed as negligence and unethical act. (Para 14)

       Result: Complaint Allowed accordingly.