NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
Anup K. Thakur, Presiding Member and Dr. S.M. Kantikar, Member
Mohit Srivastava and Anr. – Complainants
versus
Dr. Neelam Mishra and Ors. – Opp. Parties
Consumer Case No.52 of 2006
Decided on 4.3.2021

IMPORTANT POINT
“Hospital held vicariously liable for acts of it is doctors/staff for medical negligence.”

Headnote:

Consumer Protection Act, 1986 – Sections 21 and 2(1)(g) : [Consumer Protection Act, 2019 – Sections 58 and 2(11)] – Medical Negligence – Child birth – Failure of duty to care – Claim for – Patient, is wife of the Complainant No.1 – She was under care of Opposite No.1 during her pregnancy – She gave birth to a female baby – Admittedly after delivery the new born suffered thermal burns below waist in both the legs – It was thermal burn due to heat from the not air blower – However, the baby was full term and healthy which does not require to keep in the incubator for warming – Child lost her 2nd and 3rd toes on right foot and 1st, 2nd and 3rd toes on legs foot – Child suffered 60% physical impairment and physical disability of 28% – No negligence found on part of opposite parties Nos.1 and 2 while conducting uneventful delivery of healthy baby and gave proper NICU care after the burns suffered by the newborn – However, opposite party No.3, i.e., Hospital is vicariously liable – As a matter of fact the newborn was in the custody of grandmother who failed in her duty of care towards the baby – Grandmother was found not present in the room whereas the blower was facing towards the baby – Thus, no other then the grandmother put the blower facing the baby – Thus, it was a case of contributory negligence – A lump sum compensation of Rs. 40 lakh found just and adequate – Therefore, opposite party No.3 directed to pay 50% i.e., Rs. 20 lakhs to complainants @ 9% p.a. – Directions issued.

Held: Findings & Conclusion:

We have perused the medical record of the KMC. Admittedly on 23.12.2015 after delivery the new born suffered thermal burns below waist in both the legs. The Opposite Party No. 1 and 2 have attended the baby between 1.15 AM to 2 AM and the baby was immediately shifted to NICU for dressing and further treatment. Subsequently during the hospital stay skin grafting of baby’s both legs was performed by Plastic Surgeon using Skin graft (SSG) harvested from left thigh of the mother (patient).

Let us examine the reasons for burn injury whether it was due to hot air blower or a rod heater. It was a month of December and evidently severe cold winter. The baby was delivered at 10.29 PM and after wash, the baby was properly wrapped in the cloth/ blanket and kept under care of grandmother. The staff nurse noted the blisters/burn at about 1.15 AM. It is pertinent to note that the blanket was intact, not burnt, but the newborn baby suffered burn below waist and to both legs (photograph produced). Thus in our view it was thermal burn due to dry heat from the hot air blower. Thus complainant’s allegation that the rod heater was kept near baby is not sustainable. The baby was full term and healthy which does not require to keep in the incubator for warming.

It is pertinent to note that as customary practices in the hospital after delivery; one attendant is allowed to present with the mother and new born in the labour room. The affidavit filed by the Opposite Parties stated that as insisted by the Complainants, the grandmother of the child was allowed to stay on a stool by the side of the mother and child. The baby, wrapped in blanket, was given in the custody of grandmother. Due to sever winter in the month of December the hospital provided hot air blower to keep the room sufficiently warm. Logically any prudent person or the Staff shall not put the blower facing towards the newborn. The evidence of staff nurse Ms. Anis revealed that the blower was initially not directly facing the baby; however after attending another delivery when she came back ; noticed the blower was turned towards the baby and grandmother was not present there. She noticed that baby sustained thermal injury to her both lower limbs up to the waist. In our considered view, thus the hospital staff as well as the patient’s attendant-grandmother both are responsible for the unfortunate mishap. In the charge sheet the charge under Section 338 of IPC 1860 was found proved against the staff nurse Ms. Anis.

Physical impairment certificates can be issued by all medical graduates who are registered under Schedule I of MCI act 1956, and there is no need for the medical graduate to be a specialist. However, the court always considers the specialization and the expertise of the certifying doctor while relying on the assessment of physical impairment certified by the doctor.

It is pertinent to note that as per the discharge summary issued by the Opposite Party No. 2 on 20.02.2006, it revealed that the child suffered deep burns over anterior and middle aspect of both legs, dorsum of feet including all toes and one small patch on both thighs and labia majora. Further, we have perused the opinion and the interrogatories replied by Dr. Avtar Singh, the Orthopaedic Surgeon at Ursula Horsman Memorial Hospital, Kanpur. The Disability Certificate dated 02.08.2015 was issued to the child Ayushi Shrivastava by Handicap Board which consists of experts in Orthopedics, ENT and Ophthalmology. It was certified that the child suffered 60% physical impairment and physical disability of 28% (i.e. child lost her 2nd & 3rd toes on right foot and 1st, 2nd & 3rd toes on left foot; 10+5+4+5+4= 28%). Dr. Anupama Singh examined the baby on 10.08.2015 and further surgery advised.

Though the instant complaint was filed by the parents of the child, it is maintainable. We would like to rely upon the decision of Hon’ble Supreme Court in the case of Spring Meadows Hospital and Another v. Harjol Ahluwalia, [1998 4 SCC 39] held that the parents of victim can file the complaint. The court acknowledged the importance of granting compensation to the parents of a victim of medical negligence in lieu of their acute mental agony and the lifelong care and attention they would have to give to the child. This being so, the financial hardship faced by the parents, in terms of lost wages and time must also be recognized. Thus, the above expenditure must be allowed.

In the instant case we do not find any negligence on the part of the Opposite Parties Nos. 1 and 2 while conducting uneventful delivery of healthy baby and gave proper NICU care after the burns suffered by the newborn. However, the hospital the Opposite Party No. 3 is held liable vicariously. It is settled law that the hospital is vicariously liable for the acts of its doctors in various decisions of Hon’ble Supreme Court in Achutrao Haribhau Khodwa v. State of Maharashtra, (1996) 2 SCC 634, Savita Garg vs. National Heart Institute, (2004) 8 SCC 56, which also followed in Balram Prasad v. Kunal Saha, (2014) 1 SCC 384.

We have perused the audio-video CD filed by the Opposite Parties. It was recording done on 19.07.2016 of the child Ayushi attending her school Woodbine Gardenia School at Kanpur. However, it will not come for rescue of the Opposite Parties from their liability of failure of duty of care. It is known that living with a disabled child can have profound effects on the entire family–parents, siblings, and other family members. Far-reaching effects associated with raising a disabled child are the time and financial costs, physical and emotional demands, healthcare expense and logistical complexities (transport to and from school). Such child faces various psychological challenges including experience of feeling inferior, frustrated, sad and angry because of rejection by other children, neighbours and/or by other community members. For parents, having a disabled child may increase stress, take a toll on mental and physical health, make it difficult to find appropriate and affordable child care. It may be associated with guilt, blame, or reduced self-esteem.

The compensation is awarded usually for the permanent physical impairment of nonreversible nature, leading to permanent disability. The hospital-Opposite Party No. 3 must not only compensate a the child for the physical pain caused by burn which will continue to cause, but also any emotional pain and disfigured burn victim has suffered and will suffer in the future. In addition the child being embarrassed, depressed, or experiencing any of the other emotional reactions likely caused by a disfigurement.

It is pertinent to note that the newborn was in the custody of grandmother who failed in her duty of care towards the baby. She would have been alert during wee hours from any rising temperature due to hot air blower in the room. In our view, it was impossible for the newborn to sustain such burn injuries when the baby was in the lap of grandmother. According to the evidence of the staff nurse Ms. Anis, the grandmother was not present in the room whereas the blower was facing towards the baby. Thus it can be inferred that no other than grandmother put the blower facing the baby. Thus, it was contributory negligence in the instant case.

Contributory negligence is the Complainant’s failure to exercise reasonable care for their safety. Thus it is behavior that contributes to one’s own injury or loss and fails to meet the standard of prudence that one should observe for one’s own good. Contributory negligence breaks the causal connection between defendant’s negligence and plaintiff’s injury or loss and frequently pleaded in defense in the case of negligence. In the instant case the affidavit of nurse Ms. Anis establishes that the grandmother (complainants’ attendant) has contributed to the burn injury of the newborn. Thus, we have to decide how much damage was caused by the complainant’s behavior, and payment could be reduced or denied. However in our considered view, in the instant case the claim may still be allowed, as just and equitable having regard to the Complainant’s share in responsibility for the damage The loss apportionment is the solution for charging both parties when both were at fault.

The grant of compensation to remedy the medical wrong/negligence is within the realm of law of torts. In the instant case we hold the KMC hospital vicariously liable for the medical negligence and shall pay compensation to the Complainants. It is based on the principle of restitution in integrum. The said principle provides that a person is entitled to damages which should as nearly as possible get that sum of money which would put him in the same position as he would have been if he had not sustained the wrong. The complaint for medical negligence was filed in the year 2006 and now 15 years are elapsed. While awarding the compensation we have to consider the parents suffered mental agony and financial strain bringing up the child. The complainant submitted that Rs.5000/- monthly expenditure which may continue for long period. They have to incur regular monthly expenses to keep an attendant/nurse, physiotherapy along with assistive devices. As suggested by the doctors, the child may need plastic surgery depending on her growth. The child is female who has to suffer disability and walking difficulty throughout her life and difficulty to get married due to disfigurement (as discussed in para 13 above). For the quantum of award of compensation, we would like to rely upon the precedents laid down by Hon’ble Apex Court in Malay Kumar Ganguly v. Sukumar Mukherjee, (2009) 9 SCC 221, V. Krishnakumar v. State of T.N., (2015) 9 SCC 388; Balram Prasad v. Kunal Saha, (2014) 1 SCC 384.

In the Spring Meadows Case (supra) very often in a claim for compensation arising out of medical negligence a plea is taken that it is a case of bona fide mistake which under certain circumstances may be excusable, but a mistake which would tantamount to negligence cannot be pardoned. The hospitals are institutions, people expect better and efficient service, if the hospital fails to discharge their duties through their doctors being employed on job basis or employed on contract basis, it is the hospital which has to justify. In the instant case, we do not find it was a bonafide mistake which deserves pardon. It was not error of judgment also, but it was the failure of duty of care from the hospital staff as well as the patient’s attendant (grandmother).

We restrain ourselves to give any findings on the liability of Insurance Co. in the instant case. It should borne in mind that Medical negligence has been alleged against the hospital and the doctor, and not against the insurance cos. and the claim of the complainants is against the hospital and the doctor (for their alleged medical negligence), and not against the insurance cos. The respective insurance policy concerned is a separate and a distinctively different contract between the hospital / doctor and the respective insurance co., and is governed by its own terms and conditions. However, the Insurance Co. is duty bound to indemnify the doctor/s or hospital.

Based on the foregoing discussion, to serve the ends of justice, a lump sum compensation to the sum of Rs. 40 lakh shall be just and adequate. The contributory negligence is evident in the instant case, therefore the liability of KMC hospital shall restrict up to 50%. Accordingly, the Opposite Party No. 3 Kanpur Medical Center Pvt. Ltd. is directed to pay Rs. 20 lakh to the Complainants (parents of the child) within six weeks from today, failing which the amount shall carry interest at the rate of 9% p.a. till its realisation. The parents shall keep the awarded amount in fixed deposit in any nationalized bank till the child attains majority, till then they may draw periodic interest for the welfare of the child. In addition, the Opposite Party No. 3 shall pay Rs. 1 lakh towards the cost of litigation. (Paras 9 to 23)

Result: Complaint Allowed Partly.