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Smart Summary

Factual and Procedural Background

The complainant's husband, Kulbhushan Abhi (referred to as the patient), suffered serious injuries on the night of 11/12 September 1993, including injuries to his chest, stomach, face, and right eye. He was admitted to OP-1 Hospital, Kanpur Medical Center, at approximately 2:30 AM and remained hospitalized until 16 September 1993. The complaint alleged that OP-2, Dr. Rajendra Luthra, delayed performing the patient's operation, which resulted in the patient's death shortly thereafter. The complainant, Asha Abhi, filed a complaint before the District Forum, Kanpur, seeking compensation of Rs. 4,60,000 for medical negligence against the opposite parties (OPs).

The District Forum awarded compensation of Rs. 1,00,000 with interest at 10% per annum from 5 June 2006. Both parties filed appeals before the State Commission, Uttar Pradesh. OP-1 and OP-2 filed FA No. 1679/2006, OP-3 (New India Assurance Co.) filed FA No. 2530/2006 seeking dismissal of the complaint, while the complainant filed FA No. 1680/2006 for enhancement of compensation. The State Commission dismissed all three appeals. The complainant then filed the present revision petition.

Legal Issues Presented

  1. Whether there was medical negligence on the part of OP-2, Dr. Rajendra Luthra, in the diagnosis and treatment of the patient?
  2. Whether the delay in performing the operation caused the death of the patient?
  3. Whether the compensation awarded by the District Forum was adequate and if it should be enhanced?

Arguments of the Parties

Complainant's Arguments

  • The OP delayed diagnosis and surgical treatment for six days, which caused the patient's death.
  • The delay and failure to perform necessary investigations like Ultrasonography or CT Scan constituted medical negligence.
  • The OP adopted a "wait and watch" policy despite the patient's serious condition, worsening the patient's health.

OP-2's Arguments

  • There was no medical negligence or deficiency in service by OP-2.
  • The delay in operation was caused by uncalled intervention and interference by Dr. Ravi Bhushan, the patient's brother.
  • OP-2 did not charge any fees and was not responsible for the operation, which was performed by Dr. V. S. Rajput.
  • Allegations of negligence were never proved by expert opinion or evidence from the complainant.
  • The delay was also due to the All India Doctors strike and non-availability of an anesthetist on 17 September 1993.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Laxman Balkrishna Joshi vs Trimbak Bapu Godbole (1969 AIR 128) Standard of skill and duty of care expected from a doctor; elements of negligence including duty, breach, and damages. The Court applied this standard to determine that the OP-2 failed in duty of care by delaying diagnosis and treatment, constituting negligence.
Malay Kumar Ganguly vs. Dr. Sukumar Mukherjee [(2009) 9 SCC 221] Ethical duty of doctors not to blindly accept relatives' decisions when patient’s life is at risk. The Court rejected OP's contention that relatives' reluctance caused delay, emphasizing the doctor's duty to act in patient’s best interest.
(2014) 1 SCC 384 and Kunal Sahas Case V. Krishna Civil appeal No.8065 of 2009 Guidance on compensation amounts in medical negligence cases. The Court relied on these judgments to enhance the compensation awarded to the complainant to Rs. 5,00,000.

Court's Reasoning and Analysis

On examination of the medical records, the Court found that the patient was admitted with serious abdominal and head injuries and showed clinical signs indicating possible intestinal injury requiring emergency laparotomy. However, no investigations such as Ultrasonography or CT Scan were performed. The patient was treated conservatively with IV fluids and medication, and the operation was delayed for six days.

The Court noted that the OP-2 failed to attend the emergency due to the All India Doctors strike and absence of an anesthetist, which constituted a breach of duty of care. The OP-2 adopted a "wait and watch" approach despite the patient's deteriorating condition and advised semi-solid food without justification. The delay resulted in post-operative complications, coma, and eventual death.

The Court rejected the OP-2's claim that the delay was due to relatives' refusal to give consent, emphasizing that the doctor should have taken consent from the patient's wife and acted in the patient's best interest regardless of relatives' interference. The Court held that the OP-2's conduct was negligent and deficient in service.

Considering the above and relying on authoritative medical negligence precedents, the Court concluded that the complainant was entitled to enhanced compensation beyond the amount awarded by the District Forum.

Holding and Implications

The Court allowed the revision petition, enhanced the compensation to Rs. 5,00,000 (Five lakhs), and awarded Rs. 30,000 towards litigation costs.

The opposite parties are directed to pay the total compensation and costs within 60 days, failing which interest at 12% per annum shall accrue until realization. The insurance company of OP-2 is directed to indemnify the doctor as per law.

This decision directly affects the parties by increasing compensation to the complainant and confirming liability of OP-2 for medical negligence. No new precedent beyond the application of established principles was set.

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    Asha Abbhi v. Kanpur Medical Centre Pvt. Ltd.

    DR. S. M. KANTIKAR, MEMBER

    1. The complainants husband Kulbhushan Abhi (since deceased- referred as patient) suffered serious injuries in the night of 11/12.9.1993. He received injuries in his chest, stomach, face and right eye. He was admitted in OP-1 hospital, Kanpur Medical Center at about 2.30 am. He remained in the hospital till 16.9.1993. It was alleged that OP-2 -Dr. Rajendra Luthra delayed to perform patients operation , which resulted in the death within short time. The complainant, Asha Abhi filed a complaint before District Forum, Kanpur seeking the reliefs of compensation to the extent of Rs.4,60,000/- on account of medical negligence against the OPs.

    2. The District Forum awarded a compensation of Rs. 1 lakh with interest @ 10% per annum from 5.6.2006. Against the order of District Forum, the parties filed first appeals before the State Commission, UP. The OP 1 and 2 filed FANo.1679/2006, the OP-3 New India Assurance Co filed FA No. 2530/ 2006 for dismissal of complaint whereas the complainant filed FA No. 1680 of 2006 for enhancement of compensation. The State Commission dismissed all three appeals. Hence, the complainant filed this revision.

    3. As the petitioner/complainant expressed her inability to attend the proceedings because she is under treatment of Cervical Cancer, therefore, Ms. Manjusha Wadhwa, as Amicus Curie argued on behalf of the complainant. The counsel reiterated the facts in the complaint. It is further submitted that the OP delayed the diagnosis and delayed surgical treatment for 6 days, which caused death of patient..

    4. Learned counsel for Dr. Ranjan Luthra OP-2, unequivocally, stated that there was no case of any medical negligence or any negligence in treating the deceased/patient as has been alleged in the complaint nor the allegation of medical negligence has ever been proved by any expert opinion/evidence on the part of the complainant. He further submitted that, the operation was fixed on 16.9.1993, but the delay in operation of the patient was caused due to uncalled intervention and interference by Dr.Ravi Bhushan, the brother of patient. OP did not charge any fees because the OP 2 and Dr. Ravi Bhushan were known to each other. One, Dr. V. S. Rajput, performed the operation on the patient, therefore, by no stretch of imagination, any medical negligence or deficiency in service could be attributed to the OP-2 Dr. Ranjan Luthra.

    5. On perusal of medical record, we came to know that, at the time of admission to OP-1 hospital, the patient suffered head injury and was in serious condition. The clinical notes are depicted as below; 12-9-1993 2.30 Am C/o Accidental Injury in Abdomen & head injury 12.00 mid night Urine not passed since accident Severe pain in abdomen On examination Pulse 64/mint BP- 140/100\ Temp. N Chest Clear Abdomen Tender Abdomen Slightly Distended Bladder Palpable BS not audible.

    6. A bare perusal of the clinical signs, clearly indicate the possibility of abdominal (intestinal) injury, thus, emergency laparotomy (opening of abdomen) was necessary. We have perused the daily progress sheets from 12-17 September,93 which revealed that, patient was treated by IV fluids and medication. No investigations like Ultrasonography or CT Scan was performed to know about the abdominal pathology. Thus, it was the failure / deficiency in service by the OP-2. During the course of treatment in hospital, the OP-2 diagnosed it as hematoma in the abdomen.

    7. The OP failed to attend such emergency, on the pretext of All India Doctors strike, and non-availability of Anesthetist on 17.9.1993. It was the breach in duty of care. At the initial stage, the OP should have performed USG and other investigations to rule out intestinal injury and/or operated immediately or referred the patient to the nearest Government Hospital or any higher center. OP-2 advised to consume semisolid food, without any justification. Thus, OP-2 has adopted wait and watch policy on the serious patient, which caused further deterioration of the patient. The operation was performed at a belated stage i.e. after 6 days, therefore, patient suffered post-operative complications, coma and death.

    8. A catena of judgments on Medical Negligence elaborately discussed about the extent of Doctor's liability for negligence. In Laxman Balkrishna Joshi vs Trimbak Bapu Godbole 1969 AIR 128, Honble Supreme Court held that,

    We have to consider what is the standard of skill that the Doctor is expected to have in the diagnosis and treatment of patients and due care and attention that required of him failing which the Doctor can be said to be negligent. The matter is not free from difficulties. In strict legal analysis "negligence" means more than careless conduct. It connotes (1) duty to take care, (2) breach of the duty and (3) damages thereby suffered by the person to whom the duty owed. Such a duty may arise from a contract but it can arise independently out of a contract also. That duty of care arising independently out of contract is based upon the fact that the Doctor has undertaken the treatment of the patient.
    A person who holds himself out ready to give medical advice and treatment impliedly holds forth that he is possessed of skill and knowledge for the Purpose. Such a person when consulted by a patient, owes certain duties, namely, a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give, and a duty of care in the administration of that treatment. A breach of any of these duties gives a right of action of negligence against him. The medical practitioner has a discretion in choosing the treatment which he proposes to give to the patient and such discretion is wider in cases of emergency, but, he must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care according to -the circumstances of each case. [213 C-E]

    9. It is clear that the patient had distension of abdomen which was to be immediately explored either by proper investigations or surgical intervention. As per the OPs submission, the relatives of patient denied giving consent for the operation, but there is no record, as such. The OPs should have decided for the operation on very 1 day, on emergency basis, but the medicalst record revealed that the decision of surgery was delayed till 16.9.1993. Nothing is mentioned about reasons of delay. The medical record also revealed the advice on 14.9.1993, that semi-solid food orally was allowed. The patient deteriorated further, and then they took the decision of surgery on 17.9.1993. The pre-operative assessment clearly revealed the general condition was very poor. The patient was dehydrated and drowsy.

    10. Therefore, it is an unsolved question before us that, why OP kept the patient waiting for the consent of relatives? OP should have taken consent of patents wife. Thus, it was wrong on the part of OP to seek consent from the complainants brother. The OPs took the plea that due to IMAs strike on 17.9.1993, no Anesthetist was available. We are surprised that how the OP shirks away from his responsibility in the instant case of dire emergency. Despite there was strike of the doctors, the emergency services will never be affected.

    11. We hesitate to accept the contention of OP that, the relative of patients were reluctant to give consent for operation. In this context, it was the bounden duty of the doctor to decide, the correct line of treatment. In the interest of saving the life of patient, the doctor should act. The OP just blindly accepted the words of relatives. This itself would be unethical, as discussed by the Honble Apex Court in the case of Malay Kumar Ganguly vs. Dr. Sukumar Mukherjee & [(2009) 9 SCC 221].Ors.

    12. In the instant case, the OP-2 failed in his duty of care. Certainly, there was undue delay in diagnosis and treatment given to the patient, which was the cause of death. The award of District Forum appears to be a meager one; therefore, we are of considered view that the complainant deserves enhanced compensation. Regarding the compensation, we rely upon the recent judgments of Honble Supreme Court in (2014) 1 SCC 384 and Kunal Sahas Case V.Krishna Civil appeal No.8065 of 2009 decided on 1.7.2015.kumar Vs State of Tamilnadu,

    13. Therefore, we are of considered view that compensation of Rs.5,00,000/- (Five lacs) will be just and proper in this case. Accordingly, we modify the order passed by the District Forum and set aside the order passed by the State Commission passed in FA No. 1680 of 2006 (filed by the complainant ) and allow this revision petition, with the following order:

    The OP is directed to pay total compensation of Rs.5,00,000/- (Five lakhs) along with Rs.30,000/- towards costs of litigation to the complainant, within 60 days, otherwise, it will carry interest @ 12% per annum, till its realization. The OP-2 insurance company shall indemnify the OP doctor, as per law.
    ......................J J.M. MALIK PRESIDING MEMBER ...................... DR. S.M. KANTIKAR MEMBER
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    Asha Abbhi v. Kanpur Medical Centre Pvt. Ltd.
    (Oct 13, 2015)