First Appeal No.210 of 2015

28th October, 2015.

Petitioner Counsel: Ms. R. SHASE

Cases Cited:
Indian Medical Association Vs. V.P. Shantha & Ors., 1996(1) ALL MR 146 (S.C.)=1(1996) CLT 81 (SC) [Para 4]
Smt. Savita Garg Vs. Director, National Heart Institute, 2005(5) ALL MR 42 (S.C.)=IV (2004) CPJ 40(SC) [Para 4]
V. Krishnakumar Vs. State of Tamil Nadu & Ors., 2015(5) ALL MR 474 (S.C.)=C.A. No.8065/2009, Dt.1/07/2015 (SC) [Para 4]
Nizam Institute of Medical Sciences Vs. Prasanth S. Dhanaka & Ors., 2009 ALL SCR 1907=2009 INDLAW SC 1047 [Para 7]

JUDGMENT

DR. S. M. KANTIKAR, Hon'ble Member :- The complainant's son, aged about eight years, suffered fracture of his left wrist on 16-01-2006. He was taken to nearby hospital at Guindy. After first aid treatment, he was advised for further treatment from other hospital. As complainant was poor, he took his son to Royapettah Government Hospital, Chennai (OP). The on duty doctors of Ortho Department applied plaster of Paris (POP) to his injured hand. On 18-01-2006, the patient had more pain, was taken to OP-hospital, the doctors removed the POP little bit and gave injection. On 20-01-2006 again, the patient went to the OP-hospital, after X-ray, doctors applied the plaster again and gave some medicines, but the doctors ignored the complainant's say that the child was crying through the night due to severe pain. On the next day i.e. on 21-01-2006 the complainant noticed some smell coming from the bandage. Her son started crying loudly with severe pain. The pus was coming out, patient was taken to the nearest Sarathy Nursing Home. The doctors there advised to take him to OP-hospital where he took treatment initially. Hence, the complainant took her son to the OP-hospital in the night about 8.00 P.M.. The doctors did not care despite several requests of the complainant and her relatives. Finally in the midnight at about 1:00 A.M., the doctors removed the bandage and advised the complainant to take her son to Government General Hospital, Chennai. Accordingly, the patient was immediately taken to Government General Hospital, Chennai. The doctors there examined the patient and opined that Royapettah General Hospital doctors had applied POP which blocked the circulation of blood; therefore, the left hand was decomposed. To save the life of the child, doctors at Chennai hospital amputated the left hand of the patient. Therefore, alleging negligence and deficiency in service on the part of the doctors at OP-hospital, the complainant filed a complaint before the Tamil Nadu State Commission at Chennai.

2. The State Commission allowed the complaint and directed the OP to pay Rs.10, 00,000/- to the complainant as total compensation along with cost of Rs.10,000/-. Aggrieved by the order of the State Commission, the OP filed this First Appeal.

3. At the stage of admission we have heard Ms. R.Shase, the learned counsel for the appellant-OP. We have also requisitioned the entire file from the State Commission. The counsel for the OP submitted that the doctors are working in a government hospital; therefore, their services are not covered under the Consumer Protection Act. The services are free; hence the patient is not a consumer. Secondly, the counsel submitted that, the doctors at OP treated the patient properly as per standard norms. The Orthopedic surgeon at OP diagnosed the case as Grade-I Compound Segmental Fracture of ulna and fracture of radius on left forearm. Since there was a punctured wound thorough wash was given with use of antibiotics. The patient was treated by closed reduction, padding, dressing and POP as per the protocol. The patient was given proper analgesics and antibiotics. The patient was under observation continuously. The patient's limb was regularly examined for any tightness of the bandage during follow up. On 18-01-2006 and 20-01-2006, there was no evidence of vascular or neurological complications. On 20-01-2006, noted the infection, fluid was oozing out and there was pain. The fingers are suspected to be septic. If the tightness of the POP was there right from the day one, the vascular complication would have appeared immediately. Therefore, he was referred to higher centre for vascular intervention. Also, in view of the nature of the fracture at such a tender age there is chance of infection in spite of best efforts. The counsel further submitted that, complainant did not produce any cogent evidence or an expert evidence.

4. We have perused the evidence on record and the observations made by the State Commission. We disagree with the argument that, the patient was not a consumer as the OP is a government hospital. It was held by Hon'ble Supreme court in VP Shanta's Case 1(1996) CLT 81 (SC) : [1996(1) ALL MR 146 (S.C.)] and Savita Garg's Case IV (2004) CPJ 40(SC) that government hospitals are also liable for medical negligence. Recently, Hon'ble Supreme Court in the case of V. Krishnakumar Vs. State of Tamil Nadu & Ors., Civil Appeal No. 8065 of 2009 : [2015(5) ALL MR 474 (S.C.)], decided on July 1, 2015 held the Govt. of Tamil Nadu is responsible for medical negligence caused in the government hospital.

5. We are of considered view that, it was the case of Res Ipsa Loquitur. In the instant case, the OP doctors put a POP without proper care of hole injury to the hand. The boy suffered excruciating pain after application of POP cast, which clearly indicates the vascular compromise leading to gangrene. It is also pertinent to note that, the patient approached the OP hospital at 8 PM in emergency, but the doctors never bothered to examine him immediately, but they attended the patient at 1.00 am. It is an irresponsible attitude and failure in the duty of care from the doctors.

6. The complainant approached the OP hospital and enquired about the names of doctors of Ortho Department who treated the boy, but nobody furnished the information. It is the deliberate suppression by the OP hospital, thus it was a deficiency in service.

7. We are of considered view that, the complainant discharged the initial burden of proving medical negligence; but there was rebuttal by the doctors adducing proper evidence. We rely upon the decision of Hon'ble Supreme Court in the case Nizam Institute of Medical Sciences Vs. Prasanth S. Dhanaka & Ors., 2009 INDLAW SC 1047 : [2009 ALL SCR 1907] in which it is held as follows:

"In a case involving medical negligence once the initial burden has been discharged by the complainant by making out a case of negligence on the part of the hospital or the doctor concerned, the onus then shifts on to the hospital or to the attending doctors and it is for the hospital to satisfy the Court that there was no lack of care or diligence."

8. On the basis of discussion above, there is no merit and we do not find any need to interfere in the well-reasoned order of the State Commission. The compensation awarded to the complainant is just and proper. Hence, the first appeal is hereby dismissed at admission stage.

Appeal dismissed.