Shoda Devi vs Ddu/Ripon Hospital Shimla

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2557 OF 2019 (Arising out of Special Leave Petition (Civil) No. 26789 of 2018)

SHODA DEVI ….. Appellant(s)

VS.

DDU/RIPON HOSPITAL SHIMLA AND ORS. ….. Respondent(s)

Dinesh Maheshwari, J.

Leave granted.

2. This appeal by special leave is directed against the judgment and order

dated 23.02.2018, as passed in First Appeal No. 348 of 2009, whereby the

National Consumer Disputes Redressal Commission ('National Commission')

has modified the order dated 03.08.2009, as passed by the Himachal Pradesh

State Consumer Disputes Redressal Commission ('State Commission') in

Complaint Case No. 11 of 2006; and while holding that the State Commission Signature Not Verified Digitally signed by

had wrongly exonerated the respondents for medical negligence and ASHOK RAJ SINGH Date: 2019.03.07 17:29:10 IST Reason:

deficiency in service, has awarded compensation to the complainant-appellant

1 in the sum of Rs. 2,00,000/- in addition to the ex gratia amount of Rs.

2,93,526/- allowed by the State Commission. In the present appeal, the

complainant-appellant seeks enhancement of the amount of compensation

with reference to the disablement and loss suffered by her due to the

negligence of the respondents, which led to the amputation of her right arm

above the elbow.

3. We may observe at the outset that the impugned judgment and order

dated 23.02.2018, as passed by the National Commission in First Appeal No.

348 of 2009, holding the respondents liable for compensation on account of

medical negligence, was sought to be questioned by the Medical Officer

concerned (respondent No. 2 herein) by way of a Petition for Special Leave to

Appeal (C) No. 15888 of 2018 that was considered and dismissed by this

Court on 11.07.2018.

4. Having regard to the subject matter of this appeal, the background

aspects, so far relevant for the present purpose, could be noticed, in brief, as

follows:

4.1 The appellant, who had been suffering with abdomen pain and

menstrual problems, approached the respondent No.1 Deen Dayal Upadhyay

Hospital - a government hospital at Shimla ('DDU Hospital') where she was

examined by the respondent No. 2 on 10.07.2006 and was diagnosed with

having fibroid and endometrial hyperplasia. On 18.07.2006, after finding that

2 she had no relief from medicines, the appellant was advised to undergo a

minor operation viz., Fractional Curettage (D & C).

4.2. On 19.07.2006, for the purpose of the operation aforesaid, the

respondent No. 3, a para-medico, administered intravenous injection of

Phenergan and Fortwin directly by a syringe in the right arm of the appellant.

The case of the appellant has been that she continuously suffered

excruciating pain during the entire surgical procedure and despite bringing the

fact to the knowledge of respondent Nos. 2 and 3 during and after the

procedure, no measures were taken to redress and reduce the discomfort

suffered by her.

4.3. Due to the complications that had arisen in regard to the arm of the

appellant, which could not be handled by the team of doctors at DDU Hospital,

she was shifted to Indira Gandhi Medical College and Hospital, Shimla

('IGMCH') in a taxi arranged by her husband. In IGMCH, she was

administered Brachial Plexus Block treatment immediately and, on being

examined by CW-2, she was diagnosed with “acute arterial occlusion with

ischemia of limb, caused by intra-arterial injection”, which ultimately resulted in

CW-1 amputating her right arm above the elbow on 22.07.2006.

5. Having thus suffered the loss of limb, the appellant, apart from filing FIR

under Section 338 IPC on 27.07.2006 at Police Station, Sadar, Shimla,

preferred the consumer complaint on 28.09.2006, seeking compensation with

the submissions, inter alia, that after several hours of complaints, the

3 respondent No. 2 attended on her with a team of doctors consisting of general

physician and gynaecologist in a rather casual manner; that no proper service

was provided to her; that she was shifted to IGMCH only in a taxi arranged by

her husband; and that she suffered amputation only due to the medical

negligence of the medicos and para-medicos of the respondent No. 1.

6. The respondents filed their separate counter affidavits in opposition to the

complaint so made by the appellant. The sum and substance of such counter

affidavits had been that the respondents had provided services with utmost

caution and care; that the appellant was to undergo a minor surgery viz.,

Fractional Curettage wherefore, the staff nurse administered an intravenous

injection prior to the surgery; that the entire procedure lasted for about 5

minutes and the appellant cooperated during the procedure, which was

conclusive of the fact that the intravenous injection was administered properly;

that after being shifted to the ward, when the appellant complained about

severe pain in the right forearm, she was attended at immediately but when

onset of limb ischemia was confirmed, she was referred to IGMCH for further

treatment as DDU Hospital was not equipped with CTVS Department; that on

reaching IGMCH, immediate treatment was administered to the appellant but,

despite all possible treatment, her right arm had to be amputated as gangrene

had started to set in. Thus, the respondents asserted that the appellant was

provided immediate and necessary treatment; and that there was no

negligence and/or deficiency in their service.

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7. The appellant examined Dr. Rajneesh Pathania, Professor & Head,

CTVS, IGMCH, Shimla as CW-1 who produced the case history of the

appellant and pointed out that she had arrived at the hospital in emergency

with a history of severe pain in the right forearm and she was diagnosed with

acute limb ischemia and treatment was given on these lines; but with the

onset of gangrene, the right arm was amputated under his supervision to save

the life of appellant. CW-1 further stated that the reaction to an injection

administered could take place irrespective of the route of administration; that

severity of limb ischemia is more if the whole drug is given intra arterially and

occurs one in a million; and that preventive efforts should have been taken

when the complaint of pain was made at the first instance. He further stated

that the treatment administered at DDU hospital was the one accepted as an

initial line of treatment for management of pain in similar situations. Dr. R.G.

Negi CW-2, who was the first doctor to examine the appellant in IGMCH, also

made the statement in concurrence with that of CW-1. The appellant got

herself examined where she denied all the suggestions put to her by the

respondent but admitted that she did not complain about any pain when she

was shifted from the operation theatre. It was pointed out that the medical

board had assessed her permanent disablement at 80%.

8. During the course of hearing of the matter, the State Commission made

an order on 16.09.2008, expecting the Deputy Commissioner, Shimla and the

Secretary Health Department to explore the possibility of extending a

reasonable ex gratia payment to the appellant, looking to the nature of

5 disablement suffered by her and her poor and rural background. In response

thereto, the Senior Medical Superintendent of DDU Hospital stated by way of

affidavit that a sum of Rs. 2,93,526/- was assessed in this regard; and if

accepted by the appellant, the same may be conveyed to the Director Health

Services. Thereafter, the State Commission examined the matter on merits;

and, with reference to the evidence of the doctors as also that of the appellant,

held that no case of medical negligence was proved. Hence, the State

Commission rejected the complaint. But, in view of the order previously

passed on 16.09.2008 and response thereto by the Government, the State

Commission directed the respondent No. 1 to make ex gratia payment to the

tune of Rs. 2,93,526/- to the appellant, if she was willing to accept the same.

9. In appeal against the order of the State Commission, the appellant

relied on the principle of res ipsa loquitor and also contended that the State

Commission overlooked the material facts, the evidence of experts, the delay

caused at each and every stage, and the continuous suffering that she had to

undergo from the time of minor operation, to the amputation of her right arm

and thereafter as well.

10. The National Commission meticulously examined the evidence on

record and particularly, the evidence of CW-1 Dr. Rajneesh Pathania and CW-

2 Dr. R.J. Negi as regards the cause of onset of gangrene on the appellant’s

right arm as also the preventive measures which could have been, but were

not, taken by the respondents. While holding it to be a clear case of medical

6 negligence, the National Commission allowed the appeal but enhanced the

compensation only to the tune of Rs. 2,00,000/-.

11. Seeking enhancement over the amount so awarded, learned counsel

for the appellant has relied on the decision in Nizam's Institute of Medical

Sciences v. Prashanth S. Dhananka and Ors. : 2009 (6) SCC 1 where, on

the facts and in the circumstances of the case, this Court had enhanced the

compensation on the ground of medical negligence. Learned counsel has

strenuously argued that despite coming to the conclusion that the present

one is a case of medical negligence, the National Commission has awarded

a meagre sum of Rs. 2,00,000/- towards compensation without considering

the immense loss suffered by the appellant, a person coming from poor and

rural background, who was 45 years of age at the time of such amputation.

According to the learned counsel, the award of compensation deserves to be

re-evaluated and enhanced to minimum Rs. 16,20,000/- together with interest

@ 6% p.a. from the date of filing of complaint.

12. Per contra, learned counsel for respondent No.1 has attempted to

submit that the National Commission has awarded Rs. 2,00,000/- to the

appellant over and above the ex gratia amount allowed by the State

Commission and in the given circumstances, the appellant is not entitled to

make a claim for any further enhancement of compensation. Learned counsel

has refuted the contentions pertaining to medical negligence and submitted

that there had not been any fault or negligence on part of the hospital staff

7 i.e., doctors and nurses; and that the happenings due to unforeseeable and

unpredictable rarest of rare complications cannot be considered to be of

medical negligence. The learned counsel would submit that the respondents

have adhered to their medical duties in treating and attending to the

appellant's needs to the best that could be provided.

13. Having heard learned counsel for the parties and having examined the

record, we are clearly of the view of that while the findings on medical

negligence on the part of the respondents do not call for any interference, a

clear case for enhancement of the amount of compensation is made out.

14. On perusing the order of the State Commission, it is but apparent that

the State Commission though recorded that with the onset of gangrene,

amputation of the right arm of the appellant was carried out with a view to

save her life but dismissed the complaint on rather untenable grounds like

that the surgery would not have been successful if sedation was not complete

and proper; and that the appellant was referred to another hospital for more

effective treatment after all the efforts at the respondent hospital were

exhausted. In appeal, the National Commission minutely examined the

evidence on record and concluded on the medical negligence of respondents

for several counts such as: not providing or making arrangements for an

ambulance for proper shifting of the appellant; not attending on the appellant

at the first instance on her complaint about unbearable pain and the delay

having aggravated the ischemic process; and though cannula was not used

8 as it was a one-time prick for the procedure, yet it should have been used to

prevent mishaps. We find no infirmity in the findings of the National

Commission, in so far the issue of medical negligence is concerned.

However, after having recorded clear findings on medical negligence and

after taking note of the aforementioned directions of the State Commission

regarding ex gratia payment, the National Commission considered it proper

to award to the appellant an additional compensation to the tune of Rs.

2,00,000/-. The question is: as to whether the amount so awarded to the

appellant is that of just and reasonable compensation?

15. As regards the quantum of compensation in such cases, it is noticed

that in the case of Alfred Benddict v. Manipal Hospital: (2015) 11 SCC

423, where, for the reason of medical negligence, a 2-year-old girl developed

gangrene in right arm which resulted in its amputation, this Court, considering

the age of the child and her life-long suffering, be it her education or marriage

prospects, awarded a lump sum of Rs. 20,00,000/- as compensation. Likewise, in the case of Nizam's Institute of Medical Sciences (supra), where

the complainant had suffered paraplegia as an outcome of the surgery and

was thereafter confined to a wheelchair, this Court pointed out some of the

factors that weigh in while quantifying compensation in such cases. This

Court, inter alia, observed as under:-

“90. At the same time we often find that a person injured in an accident leaves his family in greater distress, vis-à-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 9 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 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.

91. We can also visualize the anxiety of the complainant and his parents for the future after the latter, as must all of us, inevitably fade away. We, have, therefore computed the compensation keeping in mind that his brilliant career has been cut short and there is, as of now, no possibility of improvement in his condition, the compensation will ensure a steady and reasonable income to him for a time when he is unable to earn for himself.

92. Mr. Tandale, the learned counsel for the respondent has, further submitted that the proper method for determining compensation would be the multiplier method. We find absolutely no merit in this plea. The kind of damage that the complainant has suffered, the expenditure that he has incurred and is likely to incur in the future and the possibility that his rise in his chosen field would now be restricted, are matters which cannot be taken care of under the multiplier method.”

16. In the ultimate analysis, the requirement in such cases of disablement

due to medical negligence is of awarding just and reasonable compensation

to the victim, while keeping in view the pecuniary damages as also the non-

pecuniary damages like pain and suffering and loss of amenities of life.

16.1 On the facts that have come on record, it appears that the appellant

was 45 years of age when she suffered the medical negligence and

consequences thereof, leading to amputation of her right arm. It is also

apparent that the appellant comes from a very poor and rural background

and is covered under Integrated Rural Development Programme. The

10 National Commission, even after finding this one to be a case of medical

negligence leading to amputation of right arm, quantified the amount of

compensation only at Rs. 2,00,000/-. Even if the ex gratia proposed before

the State Commission and the amount awarded by the National Commission

are taken together, the total compensation to the appellant comes to Rs.

4,93,526/- only.

16.2 We are constrained to observe that the National Commission, even

after appreciating the troubles and trauma as also disablement and

disadvantage suffered by the appellant, had been too restrictive in award of

compensation. Ordinarily, the general damages towards pain and suffering

as also loss of amenities of life deserve to be considered uniformly for the

human beings and the award of compensation cannot go restrictive when the

victim is coming from a poor and rural background; rather, in a given case like

that of the appellant, such a background of the victim may guide the

adjudicatory process towards reasonably higher amount of compensation (of

course, after having regard to all the attending circumstances).

16.3 Such granting of reasonability higher amount of compensation in the

present case appears necessary to serve dual purposes: one, to provide

some succour and support to the appellant against the hardship and

disadvantage due to amputation of right arm; and second, to send the

message to the professionals that their responsiveness and diligence has to

be equi-balanced for all their consumers and all the human beings deserve to

11 be treated with equal respect and sensitivity. We are impelled to make these

observations in the context of an uncomfortable fact indicated on record that

when the appellant was writhing in pain, she was not immediately attended at

and was snubbed with the retort that ‘the people from hilly areas make

unnecessary noise’. Such remarks, obviously, added insult to the injury and

were least expected of the professionals on public duties.

16.4. Apart from the above, when the appellant is shown to be a poor lady

from rural background, her contribution in ensuring the family meeting both

ends also deserves due consideration. With her disablement and reduced

contribution, the amount of compensation ought to be of such level as to

provide relief in reasonable monetary terms to the appellant and to her family.

17. For what has been discussed and observed hereinabove and in the

given set of facts and circumstances, we are of the view that the appellant

deserves to be allowed further an amount of Rs. 10,00,000/- towards

compensation, over and above the amount awarded by the State

Commission and the National Commission. Having regard to the quantum of

enhancement being allowed herein, it is also considered proper to grant 3

months’ time to the respondents to make the requisite payment and else, to

bear the burden of interest.

18. Accordingly, this appeal is allowed. The appellant is awarded further an

amount of Rs. 10,00,000/- (Rupees ten lakhs) towards compensation, over

and above the amount awarded by the State Commission and the National

12 Commission. The respondents shall make the requisite payment within 3

months from today failing which, the enhanced amount of compensation shall

carry interest @ 6% p.a. from the date of filing of the complaint before the

State Commission.

.......…..........…………………J. (ABHAY MANOHAR SAPRE)

........….……………………J. (DINESH MAHESHWARI)

New Delhi, Dated: 7th March, 2019.

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