First Appeal No. 238 of 2002 (with FA 182/1999) pronounced on 30 th November 2011 by NCDRC, New Delhi.
Facts: The case of complainant Shakil Mohammed was that during the course of a caesarean procedure of his wife Mrs. Salma Khan, the operation was conducted without availability of Oxygen cylinder. The patient was kept suffering for prolonged period. OP No. 2 Dr. C.K. Dave ought to have refused to administer anaesthesia and participate in the surgery when there was no availability of oxygen and he had no time to go through the relevant medical papers so as to evaluate the condition of Mrs. Salma Khan. He did not accompany her during the transit to the Breach Candy Hospital. It was due to sheer negligence of Dr. C.K. Dave and other attending Doctors in the Parsi Lying In Hospital that Mrs. Salma Khan went into prolonged hypertension and was bed ridden for several months. She eventually died in or about 4 / 5 months, while she was under treatment in Prince Alikhan Hospital, Mumbai. Hence he filed complaint for compensation of ` 70 lakhs along with medical expenditure of ` 10 lakhs as well as for the mental agony undergone by him. The State Commission dismissed the complaint against OP No. 1 Dr. Ms. Irani and OP No. 3 Parsi Lying In Hospital.
Observations: The spontaneous rupture of membranes was found at 8:00 A.M. on 5-12-1994 and hence the attending Doctors came to the conclusion that Mrs. Salma Khan needed caesarean operation. It was found to be unavoidable in view of the physical condition of Mrs. Salma Khan. Not only that she was obese but also the meconium stained liquor had emanated per vagina. Obviously, there was foetal distress. She was already under mental stress because previously, she wanted termination of the pregnancy but was unwillingly required to continue the same at the behest of her relatives. Though, immediate caesarean operation was required yet her relatives could not be made available till about 10:00 A.M. By that time, during the intervening period regular visiting anaesthetist, by name Dr. Gada had come to the hospital to help Dr. Ms. Irani, but had to go back for want of timely consent of the patient's relatives. Another regular anaesthetist of the hospital was Dr. Bhagat. He was informed to attend the patient in the early morning itself. He too had expressed inability to attend because of prior commitment at Breach Candy Hospital. Thus, two other anaesthetists had excused themselves. In fact, if father-in-law of Mrs. Salma Khan or her husband would have been present at the Hospital in the relevant proximity of 8:00 A.M. the caesarean procedure could have been done expeditiously. The delay in giving consent for the caesarean operation also is a contributory factor which speaks of negligence on the part of the complainant. Nobody will deny that as an anaesthetist, though OP No. 2 Dr. C.K. Dave, was called at the last moment, during course of the operation, it was necessary for him to take due care while performing his duties. The medical record shows that he reached there when the patient was already on the operation table. It is but natural that he had no reasonable time to examine the history of the patient. He gave the spinal anaesthesia after clinical examination of the patient. There is absolutely no material on record to show that the procedure adopted for giving of anaesthesia was improper, reckless or not in accordance with the regular medical practice expected from any reasonable anaesthetist. Decision of shifting the patient to the ICU in a better equipped Hospital was taken by OP No. 1 Dr. Ms. Irani. That surely was not the decision of OP No. 2, Dr. C.K. Dave. It was not expected of Dr. C.K. Dave for taking any decision for shifting of the patient because he was not at all attached to the Parsi Lying In Hospital. He was just on call duty. It is true that OP No. 2 Dr. C.K. Dave should have accompanied the patient in the ambulance while shifting her from Parsi Lying In Hospital to Breach Candy Hospital. There is sufficient explanation on record about his non-performance of such duty. He had entered the ambulance along with the patient. It has come on record that he got down immediately only when OP No. 1 Dr. Ms. Irani entered the ambulance and since there was no space available to accommodate more persons around the patient. The patient could have suffered suffocation. The ambulance was summoned by Dr. Mrs. Langadana. She should have ensured that the ambulance was well-equipped with arrangements for supply of oxygen during the transit.
Held : State Commission committed patent error while holding that OP No. 2 Dr. C.K. Dave is guilty of 'medical negligence'. Dr. C.K. Dave was not under legal obligation to constantly attend the patient because he was not on pay roll of the OP No. 3, i.e ., Parsi Lying in Hospital. He responded to call of profession. He reached the Hospital when Mrs. Salma Khan was already under preparation for caesarean operation. The provisions of the C.P. Code are applicable to a limited extent in the proceedings before the Consumer Commission. In Savita Garg v. Director, National Heart Institute , (2004) 8 SCC 56, the Supreme Court observed:
"The patients once they are admitted to such hospitals, it is the responsibility of the said hospital or the medical institutions to satisfy that all possible care was taken and no negligence was involved in attending the patient. The burden cannot be placed on the patient to implead all those treating doctors or the attending staff of the hospital as a party so as to substantiate his claim. Once a patient is admitted in a hospital it is the responsibility of the hospital to provide the best service and if it is not, then hospital cannot take shelter under the technical ground that the concerned surgeon or the nursing staff, as the case may be, was not impleaded, therefore, the claim should be rejected on the basis of non-joinder of necessary parties. In fact, once a claim petition is filed and the claimant has successfully discharged the initial burden that the hospital was negligent, as a result of such negligence the patient died, then in that case the burden lies on the hospital and the concerned doctor who treated that patient that there was no negligence involved in the treatment. Since the burden is on the hospital, they can discharge the same by producing that doctor who treated the patient in defense to substantiate their allegation that there was no negligence. In fact it is the hospital who engages the treating doctor thereafter it is their responsibility. "
Primarily it is the responsibility of the Hospital to take care of the patient. The patient goes to the Hospital and not to a particular Doctor in the Hospital. The Hospital is, therefore, a necessary party to the proceedings before the Consumer Commission. The liability of the Hospital and the Doctor is joint and several. Their liability cannot be segregated at the instance of the complainant. It follows, therefore, that when OP No. 1 Dr. Ms. Irani and OP No. 3, Parsi Lying In Hospital have been given clean chit by the State Commission and, therefore, have not been joined as parties in both the appeals or after joining them they have been deleted at the instance of the parties, mere grievance against OP No. 2, Dr. C.K. Dave is unsustainable in the eye of law. He cannot be singled out when the Hospital is rendered blameless. FA No. 238 / 2002 preferred by Dr. C.K. Dave deserves to be allowed. Complainant Shakil Mohammed is not entitled to any enhancement of compensation and, therefore, FA No. 182 / 1999 deserves to be dismissed.