"Doctor's own testimony made him to pay Rs.17 lakhs "supreme" compensation for medical negligence". Adv. ROHiT ERANDE Pune. Ⓒ
"Doctor's own testimony made him to pay Rs.17 lakhs compensation for medical negligence".
The Supreme Court enhanced the compensation by Rs.7 lakhs to support the family of the vegetative patient !
Case Details : SHILABEN ASHWINKUMAR RANA V/s. BHAVIN K. SHAH & ANR. (CIVIL APPEAL NO.1442 OF 2019) Before Hon. Supreme court. 3. The appellant mother therefore moved a complaint before the District Forum, which by its order dated 31 January 2011 found that the respondents were negligent as per the principle of res ipsa loquitur as Soon after the surgery, the child suffered from a constriction of the larynx. Due to a spontaneous aspiration of vomit material into the respiratory passage, he has suffered the consequence of a physical and mental disability.
4 The finding of the District Forum on medical negligence has been confirmed both by the SCDRC and NCDRC. The appeal before the SCDRC against the order of the District Forum was filed by the respondents, the two treating doctors. However, aggrieved by the order of the SCDRC, the appellant moved a revision before the NCDRC which enhanced the compensation to Rs.10,00,000 (Rupees Ten Lakhs) together with interest @ 6% per annum. An amount of Rs.30,000 (Rupees Thirty Thousand) was awarded towards the costs of litigation. The present appeal has been instituted in order to seek a further enhancement.
5. It was contended before the Apex Court that the child who is now 12 years old, continues to remain in a vegetative state. The amount which has been awarded by the NCDRC is inadequate to meet the requirement of nursing care. Learned counsel submitted that the child continues to survive, but in a condition which is tragic. Given the requirements of qualified care and help, an enhancement is sought.
Defense :
1. It was urged that the appeal was filed by the treating doctors against the order of the District Forum. Hence it was urged that in law, the appellant must be treated as having accepted the finality of the order passed by the District Forum. Learned counsel submitted that the appeal before the NCDRC was filed since the SCDRC had deleted the direction for payment of interest and for costs.
2. Hence, it has been submitted that only that part of the order of the SCDRC which took away a portion of the relief which was granted by the District Forum could be the subject for consideration.
Held :
1. Their Lordships observed that there is a concurrent finding in the present case of medical negligence and for that matter it referred to the counter affidavit which has been filed by the first respondent and the relevant portion is reproduced as under :
"7. ........(After the surgery)After some time, the doctors were called because the child had respiratory trouble. They rushed to the child and found that the breathing passage was blocked due to spontaneous vomiting and aspiration of the vomit material into the respiratory passages. Such aspiration of vomitus, along with laryngospasm (sudden constriction of the larynx) is a common and known complication after surgery/ anesthesia. Medical literature shows that in a large prospective study of 1,36,929 patients, the overall incidence of laryngospasm was 8.7 per 1000 patients. On the other hand, this rises to 96 per 1000 (almost one in 10) in case of children with recent respiratory infection. That is why it is advised in medical literature to avoid giving anesthesia to children upto 6 weeks after respiratory infection. It is extremely pertinent to note that before giving anesthesia, the respondent anesthetist had carried out pre-anesthetic check-up and had asked the parents whether the child had any recent infection and they answered in the negative. However, during cross examination before the Ld. District Forum, it was revealed that the patient had URTI (Upper Respiratory Tract Infection) within one week preceding operation. Thereafter, on 06.03.2009, the patient was discharged from Sterling Hospital Ahmedabad. The diagnosis as per the discharge summary was - "Hypoxic ischaemic encephalopathy following cardio -respiratory arrest after circumcision with aspiration pneumonia". On 07.11.2009, the child was examined by Dr. Sudhir V. Shah, Neurologist. He wrote in his notes that the child "identifies parents". On 11.08.2010, a disability certificate issued to the child stated that : He was a case of severe mental retardation. This shows that patient was never in state of coma or vegetative state. In fact this is a case where the child's breathing was handicapped by aspiration of vomiting leading to sudden laryngospasm as well as blockage of the respiratory passages by the vomited material. This resulted in brain hypoxia and mental retardation."
2. It was therefore held that from the version of the first respondent himself, clearly establishes a case of medical negligence. The aspiration of vomit material took place soon after the surgery. This was a complication which was known to the surgeon and the anesthetist. Failure to take adequate precautions establishes in our view, a clear case of medical negligence. That apart, the affidavit is a clear admission of the fact that the child has suffered severe mental retardation and brain hypoxic ischaemic encephalopathy.
3. Their lordships invoked the power U/Art.142 to enhance the compensation to do complete justice, considering the tragic condition of the child and of the parents, purposes of doing complete justice. it relied upon the earlier judgment of apex Court in the case of Nizam's Institute of Medical Sciences Vs. Prasanth S. Dhananka4, wherein a three Judge Bench of this Court emphasized that cases involving disability are in many respects even more tragic than cases of death, particularly where the disability is of a nature involving a life-long condition of despair and helplessness. This Court observed :
"90. At the same time we often find that a person injured in an accident leaves his family in greater distress, vis- `-vis a family in a case of death. In the latter case, the initial shock gives way to a feeling of resignation and acceptance, and in time, compels the family to move on. The case of an injured and disabled person is, however, more pitiable and the feeling of hurt, helplessness, despair and often destitution enures every day. The support that is needed by a severely handicapped person comes at an enormous price, physical, financial and 4 (2009) 6 SCC 1 emotional, not only on the victim but even more so on his family and attendants and the stress saps their energy and destroys their equanimity."
4. The Apex court found the enhancement of NCDRC as inadequate as in their view, does not take into account the requirements of nursing care, medical help and other attendant requirements of the child for the future. Therefore they lastly observed that taking an overall view of the matter, we are of the view that the ends of justice would be served by enhancing the compensation, which has been awarded by the NCDRC, by an amount of Rs.7,00,000 (Rupees Seven Lakhs), which shall carry interest at the rate which has been awarded by the NCDRC.
This case is the fine example which deals with the problems faced by the patients as well as Doctors. The patient if remains vegetative, then really, it makes the life of his next of kins miserable and it costs lot of money and one cannot feign the monetary income. At the same time, any such case can cause any complication as the human body is the complex machine. Btu the question is whether for every such case Doctors to be held liable ? The answer is not and has been said so by the many other judgment of Hon. Apex Court.
For Doctors, you have to always follow SOP and proper documentation and last bot not the least, to have a good insurance Policy !!
Thanks and Regards
Adv. ROHiT ERANDE
Pune. Ⓒ
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