G.B. PANT HOSPITAL AND ANR v. SMT. TARA DEVI

The following quotation in the order of National Commission in Parvat Kumar Mukerjee vs. Ruby General Hospital and Others 2005 Vol.2 Judicial Reports Consumer 50 is inspiring.

1.

"Can doctors insist and wait for money (fee) when death is knocking door of the patient? Obvious answer is recovery of fee can wait - not the death - nor the treatment for trying to save the life."

The appellants were OP-1 and 2 before the District Forum. Respondent was complainant whose case was that her husband Shri Niranjan Gupta was suffering from heart disease since 2001, his condition was serious, ECG and NSR were carried out on 12.02.05. Reports of the test were

"CRX Aortic unfolding". On persistent requests of complainant to do the needful, Doctors of OP suggested surgery. OP also handed over the estimate of the surgery. The complainant purchased surgical items worth Rs.8,000/- required in the operation as well as instrument/ "value with graft (aortic conduit) from Ved Med Software and Trading (P) Ltd. on 14.05.05. But doctors of the OPs delayed the operation day by day. On 06.06.05 Supdt. of appellantno.1 issued a letter for depositing expenditure of operation of heart of complainant's husbandamounting to Rs.1,30,000/- for single prosthetic value implants and aortic root replacement as shown by Annexure-C. Despite full preparation and knowledge of severity of the patient's condition, date for the operation of patient was given in second week of July, 2005 by the Supdt. of the hospital. Whereas in the discharge card on 0806.05 the doctors gave date for admission of patient on 04.08.05 as shown by Annexure C-4. The complainant was ready and willing to deposit the operation fee Rs.1,30,00/- on 06.05.05,but OP did not accept the same without any rhyme and reason. On 02.05.05 pre- operative diagnosis of the patient was "Av-disease with markedly dilated aortic root" and on 08.06.05 when the patientwas discharged, final diagnosis of the patient was same the same. It proves that the patient was discharged in the same condition, in which he was admitted without operating him inspite of full preparation. It amounts to deficiency in services of OPs for which they are liable to compensate. Principle of Res Ipsa Loquitur is applicable. The patient took medicines regularly and on 19.06.05 his condition became fatal at about 9.00 p.m. The complainant brought the patient to the hospital where he was admitted and declared dead on 20.06.05 at 12.05 a.m. due to ailment. The complainant prayed for compensation to the tune of Rs.19 lakhs and cost of litigation.

2.

The OPs appeared and filed WS stating that complainant was not consumer, OP-1 is a government hospital an does not provide any paid service. It denied that the patient required emergency surgery. It pleaded that patient had been suffering since 2001. It was a selective planned procedure in which the patient can wait for few months for optimum condition. It denied deficiency in service and prayed for dismissal of complaint.

3.

Complainant filed rejoinder and evidence by affidavit. OP filed affidavit of Shri K.C. Tayal, M.S.4. After going through the material on record and hearing the arguments, the District Forum answered the question of maintainability of the complaint in favour of the complainant. It observed that on 14.05.05 complainant was given estimate of Rs.17,000/- complainant purchased medicine worth Rs.8,000/-, complainant also purchased valve with graft of Rs.80,000/-. All these consumables are required in heart surgery. OPs issued estimate of expenditure on 06.06.05 for Rs.1,30,000/-. The complaint clearly fell within para 42 sub para 10 of the law laid down by Hon'ble Supreme Court in Indian Medical Association vs. V.P. Shanta 1995 (2) Consumer Protection Cases 602.

5.

On merits the District Forum returned a finding that Annexure 2 to 4 depict the seriousness of the condition of patient. The complainant was directed to purchase surgical items and post operation medicines. There was no explanation of the OP as to why OP deferred the operation of the patient on 14.05.05. In para 10 of the affidavit, Shri K.C. Tayal, Medical Supdt. averred that the operation had not been conducted in good faith and bonafide belief. The same did not give any picture as to why the operation was deferred.

6.

Regarding compensation the District Forum observed that according to complainant, her husband was earning to Rs.7,000/- to Rs.8,000/- per month. She filed a certificate from employer. The witness of the OP stated that complainant gave income of Rs.2,000/- per month in record. Even if the income was taken as Rs.2,000/- per month, the patient was earning member of family consisting of six

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persons. Death of the patient created vacuum in the life of family members. Hence the District Forum directed both the OPs to pay jointly or severally a sum of Rs.4 lakhs to the complainant as compensation and Rs.10,000/- as cost of litigation.

There is delay in filing appeal for which application for condonation has been moved. The same is pending un-disposed of. The plea taken in application is that appellant handed over copy of impugned order to its counsel, the said copy was misplaced in office of counsel. The application is accompanied by affidavit of counsel for appellant. In view of the same application is allowed.

8.

The appeal was dismissed in default vide order dated 19.07.13. The appellants preferred R.P. No.3712/13 which was allowed by NC vide order dated 12.01.15. The appeal was restored subject to payment of Rs.10,000/- as cost. This is how the appeal is again before this Commission.

9.

During arguments in appeal appellant no.2 who argued his case in person submitted that impugned order has not taken notice of his reply. The order shows as if he did not file any w.s. at all. He drew my attention toward reply copy of which Annexure C/3 at pages 22 to 24 of bunch of appeal. He has mentioned in the reply that the complainant had not incurred any expenditure in this case. The items purchased by the complainant were returned and money was taken back before patient went house after discharge. So patient had not met any expenditure whatsoever. The hospital provide free services. In reply to para 3 he stated that patient was suffering from disease (aortic stenosis with aortic root dilatation) before 2001 and was referred to him only on 03.02.05 for surgery. As patient needed estimate of surgery and he needed some clarification on condition of great artery i.e. aortic root and ascending aortic size, he asked for early echo to ascertain the nature of surgery (simple aortic valve replacement/ aortic root replacement), so that estimate can be issued at the earliest. The request for early echo had nothing to do with severity of the disease, he was suffering. Echo was done on 11.02.05 inspite of the fact that routine waiting time was 2-3 months for echo.

10.

After reviewing the echo treatment was revised and estimate form was given. Seeing the financial condition of the patient, he was also advised to apply for financial help from Delhi Arogya Nidhi/ and Prima Minister relief Fund, but the complainant refused to seek any financial help. Date of surgery is given after patient is ready for surgery and has arranged finances and voluntary blood donation. In this case date of admission was given and patient was admitted on 02.05.05. Angiography done on 06.05.05 showed normal coronary and RCA is not hooked. No hooking of RCA did not indicate any serious matter. It happens in dilated aortic root because of displacement of coronary ostium. This does not show any abnormality of coronary artery needing any treatment. Even same finding was there in angiography which was done in Feb., 2001.

11.

After the angiography it was confirmed that the surgery patient needed was aortic root replacement (Bentalls procedure), which is considered a major surgery and carries very high mortality and morbidity. The doctors usually do only two or three such surgery in a year. Even anaesthetist has asked for high risk consent in this patient, because of gravity of surgery, not because of patient condition. The diseases from which patient was suffering did not need urgent intervention and was a elective planed procedure in which patient can wait few months for optimum condition.

12.

Patient was given the estimate of Rs.1,30,000/-, he could only arranged Rs.88,000/- and purchased item worth said amount which was afterward returned. The conduit purchased by the claimant was due to expire in January, 2006 (which the appellant considered safe to use) but complainant had objection and wanted fresh stock, availability of which was promised only after first week of June by the dealer, who usually imported it from abroad.

13.

From May to July every year, there are summer vacations in the hospital and only half of the personnel are on duty. Because of this vacation his operations days were reduced from thrice a week to twice a week. He was supposed to proceed on vacation from 09.06.05 to 15.07.05. He hesitated to operate upon this patient before proceeding on vacation because of serious, rare and high risk nature of surgery. He wanted 10 days of post operated period to be looked after by himself, as his junior doctors were not trained for this unusual procedure. He gave the option to get operated by Prof. M.Nigam (Head of Department) who was looking after his patient in his absence or to go home and get admitted after the vacation as he was stable. The patient opted for second option and demanded fresh estimate certificate so that in the meanwhile he could get some financial help (he had realised it from other patients in the ward, who had been sanctioned help from Prime Minister's Relief Fund and Delhi Arogya Nidhi).He was given discharge and estimate certificate was given on 06.06.05 with

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instructions to report on 04.08.05 for admission. He acted in good faith to help but patient died on 20.06.05 at home (as per the information given to Dr. Sudhir, Senior Resident by the complainant). The patient was sick for two days before his death and was not brought to the hospital for treatment. The disease (aortic stenosis) carries the risk of sudden cardiac death and the risk remains the same even after surgery.

15.

Still the nursing staff did not attend the patient promptly when he was taken to hospital on 19.06.05. He was allowed to die at 12:05 a.m. on 20.06.05. Thus appellant no.2 who is Doctor is not liable. But appellant no.1 who is Hospital is liable as per decision of National Commission in Lal Memorial Hospital vs. T Shiva Raman IV (2015) CPJ 334.

16.

But the question remains that merely because some of the doctors proceed on leave, hospital is not closed. The vacations are arranged in such a manner that some doctors including senior doctors are always available to take care of urgent situations.

17.

If according to OP the cause of death was something other than heart problem. They should have got the post mortem conducted. They didn't do so for the reasons best known to them. They were aware about the history of illness and treatment being provided to the patient. So the only inference that can be drawn is that they were sure that cause of death was heart problem.

18.

The only objection of the appellant which had been raised through out is that it is a government hospital, it provide free services and is not covered by Consumer Protection Act. This plea has been dealt with by the District Forum and repelled after making reference to decision of Hon'ble Supreme Court in Indian Medical Association vs. V.P. Shanta and others Supra. It has been held therein that where charges are required to be made by person who are in a position to pay but service is rendered free of charge to person who can not afford to pay, such service is covered under the definition of service under Section 2(1)(o) Consumer Protection Act. Even free service would be a service under the Act in such a case and the government hospital in similar situation can not be, treated differently. It was concluded that which are render free service are the beneficiary which is covered within the definition of 'consumer' under Section 2(1)(o) of the Act. In the case in hand the patient was given estimate of Rs.1,30,000/- which shows that appellant hospital is not providing free service to all. It may be that it provides service free to those who can not afford but charges from those who can afford.

19.

The appellant relied upon decision of National Commission in Hema (Dr.) vs. S. Jayan II (2016) 306 CPJ. In the said case there was no evidence to infer that OP hospital rendered service on payment of charges to any person. So the same is distinguishable.

20.

I may add that in yet another decision in Royal Pitta Government Hospital vs. R. Laxmi II (2016) CPJ

639 NC repelled the plea that patient was not a consumer as OP was a government hospital. In para-4 of the judgement it relied upon earlier decision of Hon'ble Supreme Court in Indian Medical Association vs. V.P. Shanta, Savita Garg vs. Director National Heart Institute IV (2004) CPJ 40 SC. Reference has also been made to decision of Hon'ble Supreme Court in V. Krishna Kumar vs. State of Tamil Nadu III (2015) CPJ 15 which it was held that Govt. Of Tamil Nadu is responsible for medical negligence caused in government hospital.

21.

Recently State Commission Kerala held in Shahjaha vs. Suganthi David I (2019) CPJ 12 CN that government hospital is covered under Consumer Protection Act. Thus consistent view has been that government hospital is covered by Consumer Protection Act.

22.

The District Forum has already acted on income of the patient, as pleaded by the hospital viz. Rs.2,000/- per month and has awarded compensation on that basis. A patient aged 50 years has lost his life leaving family of five persons at the mercy of others. No interference in the amount of compensation is called for.

23.

Before parting with the file I may mention that the compensation of Rs.4 lakhs was awarded in 2008. Now we are in 2019. The appellant hospital has avoided payment of the awarded amount under the guise of exparte stay obtained by it vide order dated 02.04.08. Now when the appeal of appellant no.1 is going to fail, it can be and should be burdened with liability to pay interest also. In taking this view I am supported by division bench decision of our own Hon'ble High Court in Radha Vallabh Suresh Chand vs. Union of India 1992 Rajdhani Law Reported 374.

24.

To sum up he appeal is accepted in part, it is held that appellant no.1 alone is liable to pay the awarded amount of Rs.4 lakhs as compensation alongwith interest @9% per annum from the date of impugned

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order till the date of payment. Appellant no.1 will also pay the cost of Rs.10,000/- as awarded by the District Forum. Appellant no.2 is not liable to pay any amount in his individual capacity. Copy of the order be sent to both the parties free of cost.26.

File of the District Forum be returned with copy of this order.27.

File be consigned to record room.28.

(O.P. GUPTA)

MEMBER (JUDICIAL)

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