NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
D.K. Jain, President and M. Shreesha, Member
Dr. Sudhir Mohan Kant and Anr. —Petitioners
versus
Ramadhar Singh and Anr. —Respondents
Revision Petition Nos.166 and 359 of 2012
Decided on 16.5.2018

IMPORTANT POINT
When there is negligence apparent on face of case and speaks themselves, no expert evidence or opinion is required.

Headnote:Consumer Protection Act, 1986—Sections 15, 17, 19 and 21—Medical services—Medical negligence—Gynaecology—By impugned order, State Commission reduced compensation awarded by District Forum from Rs.10,00,000/- to Rs.4,00,000/- to be paid by Petitioner to Complainant with costs of Rs.2,000/-—When there is negligence apparent on face of case and speaks themselves, no expert evidence or opinion is required, even if bonafide act is performed negligently by skilled person then too it also amounts to deficiency in service—Pitiable state of patient subsequent to surgery is seen from discharge summary, reports and treatment rendered in various hospitals—Patient was lying in comatose state with bed sores and despite a plethora of blood chemistry investigations and hospitalization, she never regained consciousness—It can be safely construed that it was only because of complications that arose subsequent to TAH that patient had never recovered despite best efforts made by several Doctors—Having regard to circumstances of Complainant including his age, deprivation he had to suffer, loss of companionship, care and protection which Complainant and children are entitled to get, loss of consortium and pain and suffering undergone by Complainant and his family, amount awarded by District Forum, i.e., compensation of Rs.10,00,000/- deserves to be paid to Complainant to meet ends of justice.

       Held: Aggrieved by the said order, the treating Doctor preferred an Appeal No. 463/2007 before the State Commission, which allowed the Appeal in part and modified the order of the District Forum, reducing the compensation from Rs.10,00,000/- to Rs.4,00,000/-, out of which Rs.3,00,000/- was to be paid by the Insurance Company and the balance by the treating Doctor together with costs of Rs.2,000/- and default interest @9% p.a., if the amount was not paid within two months from the date of order. The State Commission, while concurring with the finding of the District Forum regarding the aspect of the ‘Medical Negligence’ reasoned as follows:—

        “15. Now, the point is whether the anaesthesia given to the patient before operation was in excess amount or not? We have gone through all the relevant documents and the prescription of various leading doctors, which are on the record. All the medical prescriptions indicate to the fact that the patient, who came in full consciousness, did not regain her consciousness after the operation and never recovered of that situation till her death. We do not find any noting of the history of the patient or pathological test prescribed by the doctor before a surgery, which is an essential and important factor in a case of major surgery. In view of the above observation, we find that the appellant-doctor failed to take pre-operative measures and precaution so as to ascertain the amount of dose rather failed to assess the tolerance capacity of the patient to the anaesthesia. A doctor is expected to take an ordinary care prior to operation, which was not taken rather the appellant seems to have acted negligently, which caused major damage to the patient health making her paralyzed for the whole life.

        16. Therefore, in the present facts and circumstances of this case, no more evidence is required to be adduced by the respondent as the negligence apparent on the face of the record. It is well settled law that when there is negligence apparent on the face of the case and speaks themselves, no expert evidence or opinion is required, even if bonafide act is performed negligently by skilled person then too it also amounts to deficiency in service. In the light of ruling referred by the respondent laid down by the Hon’ble Apex Court, we feel that no expert evidence is required in the present case. We agree to the view taken by the learned District Forum that the appellant was negligent in providing medical services to the patient.

        17. Having held the appellant guilty of medical negligent, the compensation awarded by the District Forum seems to be on higher slab, which needs to be reduced. As per the provision, award is not only value of goods and services but also to compensate a consumer for injustice suffered by him.

        However, under Consumer Law compensation paid for medical negligence is neither punishment nor reward. But it is assessment of compensation for the injury sustained or death and not as a punishment for wrong to make suffer”.

       The pitiable state of the patient subsequent to the Surgery is seen from the discharge summary, the reports, and the treatment rendered in various hospitals. The pathetic condition of the patient is evidenced in the aforenoted treatment record and discharge summary of Dr. S.M. Rohatgi. The contention of the treating Doctor that the letter head of Dr. Rohatgi cannot be used for Medico Legal Purposes, and therefore, the prescription cannot be relied upon, is completely unsustainable on the ground that both the Fora below have rightly relied on not merely the prescription but also the entire treatment record and the Discharge Summary given by Dr. Rohatgi.

       It is evident that the patient was lying in ‘comatose state’ with bed sores and despite a plethora of blood chemistry investigations and hospitalization, she never regained consciousness. The prescription of Dr. K.K. Sinha dated 17.10.2005 shows that the patient had hypoxia. The E.E.G. conducted on 18.10.2005, advised by Dr. K. K. Sinha showed abnormality suggestive of “diffuse encephalopathy involving entire brain”. Therefore, it can be safely construed that it was only because of the complications that arose subsequent to TAH that the patient had never recovered despite the best efforts made by several aforenoted DoctoRs.

       The contention of the treating Doctor that the Anaesthesia was given by Dr. M.K. Gupta of Dhanbad, who reached his Nursing Home on 14.08.2005 and administered Anaesthesia, is not supported by any documentary evidence, especially in the ‘medical records’. Dr. M.K. Gupta filed an Affidavit that he found the patient fit for General Anaesthesia and administered 02-N2O + muscle relaxant and during the operation, all the vital signs of the patient were within normal limits. This Affidavit is silent about the time when he reached the Nursing Home and whether the test dose of Anaesthesia was given, and does not mention anything about the post-operative complications which the patient had developed. Both the fora below have rightly reasoned that it was improbable that Dr. M. K.Gupta had come from Dhanbad to administer Anaesthesia, when the patient was operated in the mid-day at 12-00 noon. The ‘duty of care’ as laid down by the Hon’ble Apex Court in “P.B. Desai Versus State of Maharashtra and Another (supra)” has not been undertaken in this case and we hold that the doctor did not perform his duty which was expected from him under the common Medical Parlance. We are of the considered view that this amounts to negligence. Moreover, the operation notes do not evidence either the notings by Dr. M.K. Gupta or the dosage of Anaesthesia that was given. We find no reason to disbelieve the final diagnosis given by Dr. S.M. Rohatgi on 13.09.2005, wherein he opined that post anaesthesia, the patient developed hypoxia brain injury. It is relevant to note here that the patient died during the pendency of the Complaint before the District Forum.

       For the aforenoted reasons, the Revision Petition No. 166 of 2012 preferred by the treating Doctor is dismissed.

       Having regard to the circumstances of the Complainant including his age, the deprivation he had to suffer, the loss of companionship, care and protection which the Complainant and the children are entitled to get, the loss of consortium and the pain and suffering undergone by the Complainant and his family, we are of the considered view that the amount awarded by the District Forum, i.e., compensation of Rs.10,00,000/- deserves to be paid to the Complainant, to meet the ends of justice. We also find it a fit case to award costs of Rs.50,000/-.

       In the result, the Revision Petition No. 359 of 2012 preferred by the Complainant is allowed and the amount of compensation is enhanced to Rs.10,00,000/- as awarded by the District Forum, out of which, Rs.3,00,000/- shall be paid by the Insurance Company and the balance amount shall be paid by the treating Doctor, within eight weeks from the date of receipt of this order, failing which, the amount shall attract interest @9% p.a. from the date of filing the Complaint, till the date of realization, together with costs of Rs.50,000/-. Needless to add that the amount deposited before the District Forum vide order of this Commission on 05.09.2012, with the liberty to the Complainant to withdraw the deposited amount on furnishing restitution security to the satisfaction of the District Forum, shall be adjusted in the aforenoted amount. (Paras 8, 13 to 16, 23 and 24)

       Result: Revision Petitions Partly allowed.