This article is a part of our Medical Negligence Series.
The case reached to the supreme court by way of Special leave petition against the order of Nation cconsumer Disputes Redressal Commission, New Delhi.
The Hospital was the appellant while the insurance company was the appellant in the other appeal.
Facts of the Case
- A Complaint Petition was filed by minor Harjot Ahluwalia through his parents Mrs. Harpreet Ahluwalia and Mr. Kamaljit Singh Ahluwalia before the Commission alleging that the minor was being treated at a Nursing Home in Noida in December, 1993.
- As there was no improvement in his health the said minor was brought to M/s. Spring Meadows Hospital, on 24th of December, 1993. In the hospital the patient was examined by the Senior Consultant Paediatrician, dr. Promila Bhutani and on the advice of the said doctor the patient was admitted as an in-patient in the hospital.
- The doctor made the diagnosis that the patient was suffering from typhoid and intimated the parents that medicines have been prescribed for the treatment of the typhoid fever. On the 30th of December, 1993 at 9.00 a.m. Miss Bina Matthew, nurse of the hospital asked the father of the minor patient to get the injection – In Lariago – to be administered intravenously to the minor patient.
- The father of the minor child purchased the medicine which was written down by the nurse and gave it, whereupon the nurse injected the same to the minor patient. The patient, immediately on being injected collapsed while still in the lap of his mother.
- it was further alleged that before administering the injection the nurse had not made any sensitive test to find out whether there would be any adverse reaction on the patient. Seeing the minor child collapse the parents immediately called for help and the Resident Doctor Dr. Dhananjay attended the patient. Said Dr. Dhananjay told the parents that the child had suffered a cardiac arrest and then by manually pumping the chest the Doctor attempted to revive the heartbeat.
- The hospital authorities then summoned an Anaesthetist, Dr. Anil Mehta who arrived within half an hour and then started a procedure of manual respiration by applying the oxygen cylinder and manual Respirator.
- In the meantime Dr. Promila Bhutani also reached the hospital and the minor child was kept on a device called manual Respirator. Though the child was kept alive on the manual ventilator but the condition of the child did not show any improvement.
- In course of treatment as the minor’s platelets count fell, a blood transfusion was given but still no improvement could be seen. Dr. mehta, therefore, intimated the parents that the hospital does not have the necessary facilities to manage the minor child and the should be shifted to an intensive Care Unit equipped with an Auto Respirator.
- On the advice of Dr. Mehta the parents brought the child and admitted him in the Paediatric Intensive Care Unit of the All India Institute of Medical Science on the 3rd January, 1994. In the Institute the doctors examined the minor child thoroughly and informed the parents that the child is critical and even if the would survive, he would live only in a vegetative state as irreparable damage had been caused to his brain and there was no chance of revival of the damaged parts.
- The minor was then kept in the Paediatric Intensive Care Unit of the AIIMS till 24th of January, 1994 and was thereafter discharged after informing the parents that no useful purpose would be served by keeping the minor child there.
- Dr. Anil Mehta as well as Dr. Naresh Juneja, Chief Administrator of Spring Meadows Hospital, however, offered to admit the minor child at their hospital and to do whatever was possible to stabilise the condition of the child and accordingly the minor child was again admitted to the hospital.
Allegations of the Complainant
The complainant alleged that the child on account of negligence and deficiency on the part of the hospital authorities suffered irreparable damages and could survive only as a mere vegetative and accordingly claimed compensation to the tune of Rs. 28 lacs.
Objection of the appellant
On behalf of the appellants objection was filed before the commission taking the stand that
- no payment having been made it cannot be said that the services of the hospital having been availed for consideration and as such the complainant is not a consumer within the definition of ‘Consumer’ in the Consumer Protection Act, 1986.
- It was further stated that there has been no deficiency or negligence in service on the part of the doctors of the hospital and the negligence, if any, is on the part of the nurse who misread the prescription.
- It was also contended that immediate steps have been taken by Dr. Dhananjay as Well as dr. Mehta and the hospital authorities had summoned three specialists to examine the patient.
- It was further stated that the patient was taken to the All India Institute of Medical Sciences by the parents for better treatment but on being discharged from the Institute the hospital authorities on sympathetic consideration readmitted the child and are taking all possible steps and giving all possible treatment without any payment and at no point of time there has been any negligence on the part of the doctors attending the minor child in the hospital.
Objection of the Nurse
Miss Bina Matthew the nurse who injected the Lariago injection to the child, field her objections station therein that
- she is a qualified nurse and had exercised all diligence and care in discharging her duties.
- It was further stated that the patient was under the treatment of Dr. Bhutani who had the duty to decide the course treatment and as nurse she was only working under her control and direction.
- She also stated that as the patient was already taking lariago syrup and when the doctor advised that injection should be given she thought that the same lariago injection to be given and it was the duty of the duty of the doctor to give the injection and take all care.
The conclusion of the commission
The Nation cconsumer Disputes Redressal Commission, heard above mentioned facts, arguments, and evidence and came on the conclusion that,
- the child had suffered from cardiac arrest and cause of such cardiac arrest was intravenous injection of lariago of high dose.
- there has been considerable delay in reviving the heart of the minor child and on account of such delay the brain of the minor child got damaged.
- On the question of the negligence of services the Commission came to the conclusion that there was a clear dereliction of duty on the part of the nurse who was not even a qualified nurse and the hospital is negligent having employed such unqualified people as nurse and having entrusted a minor child to her care.
- The Commission also came to the conclusion that Dr. Dhananjay was negligent in the performances of his duties inasmuch as while Dr. Bhutani had advised that the injection should be given by the doctor but he permitted the nurse to give the injection.
- The Commission, ultimately came to the finding that the minor patient had suffered on account of negligence, error and omission on the part of nurse as well as Dr. Dhananjay in rendering their professional services and both of them were negligent in performing their duties in consequence of which the minor child suffered and since the doctor and the nurse were employees of the hospital the hospital is responsible for the negligence of the employees and the hospital is liable for the consequences.
- The Commission then determined the quantum of compensation and awarded 12.5 lacs as compensation to the minor patient. In addition to the aforesaid sum of Rs. 12.5 lacs, the Commission also awarded Rs. 5 lacs as compensation to be paid to the parents of the minor child for the acute mental agony that has been caused to the parents by reason of their only son having been reduced to a vegetative state requiring lifelong care and attention.
- On the question of the liability of the reinsurance company the Commission came to hold that the said insurance company is liable to indemnify the amount of Rs. 12,37,500/- in terms of the policy on account of the liability of the hospital as the case is fully covered under the indemnity clause.
Appeal to the Supreme court
Against the said order of the national commission, insurance company and hospital filed appeal to the supreme court.
Questions before the Court
Following questions arose in the case-
First question– The minor child being the patient who was admitted into the hospital for treatment can the parents of the child be held to be consumers so as to claim compensation under the provisions of the Consumer Protection Act?
Second Question– Is the commission under the Act entitled to award compensation to the parents for mental agony in view of the powers of the commission under Section 14 of the Act?
Third Question- Even if the child as well as the parents of the child would come under definition of the ‘consumer’ under Section 2(1) (d) of the Act whether compensation can be awarded in favour of both the consumers or compensation can be awarded only to the beneficiary of the services rendered, who in the present case would be child who was admitted into the hospital?
Answers of the Court
- According to clause (ii) of Section 2(1)(d) of consumer protection act, 1986, a consumer would mean a person who hires or avails of the services and includes any beneficiary of such services other than the person who hires or avails of the services. When a young child is taken to a hospital by his parents and the child is treated by the doctor, the parents would come within the definition of consumer having hired the services and the young child would also become a consumer under the inclusive definition being a beneficiary of such services.
the conclusion is irresistible that both the parents of the child as well as the child would be consumer within the meaning of Section 2(1)(d)(ii) of the Act and as such can claim compensation under the Act.
- Commission would be entitled to award compensation under clause (d) to a consumer for any loss or injury suffered by such consumer due to the negligence of the opposite party. If the parents of the child having hired the services of the hospital are consumer within the meaning of Section 2(1)(d)(ii) and the child also is consumer being a beneficiary of such services hired by his parents in the inclusive definition in Section 2(1)(d) of the Act, the Commission will be fully justified in awarding compensation to both of them for the injury each one of them has sustained.
In the case in hand the Commission has awarded compensation in favour of the minor child taking into account the cost of equipments and the recurring expenses that would be necessary for the said minor child who is merely having a vegetative life. The compensation awarded in favour of the parents of the minor child is for their acute mental agony and the lifelong care and attention which the parents would have to bestow on the minor child.
Accordingly, the Commission rightly awarded compensation in favour of the parents in addition to the compensation in favour of the parents in addition to the compensation in favour of the minor child.
- Seeing the only child living a vegetative state on account of negligence of the hospital authorities on a hospital bed. The agony of the parents would remain so long as they remain alive and the so-called humanitarian approach of the hospital authorities in no way can be considered to be a factor in denying the compensation for mental agony suffered by the parents.
Reference
M/S. Spring Meadows Hospital & Anr vs Harjol Ahluwalia; 1998(2) SCALE 456 (SC)