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