Consumer Protection Act, 1986 – Medical Negligence – Vicarious liability of the Hospital vis-a-vis the Operating Surgeon – Appellant’s son-patient complained of abdominal pain, fever and haemorrhage in both eyes – Referred by the physician to the Hospital-original Opposite Party No.1 – He was taken to the said Hospital where he was operated upon when the platelets count was 35000 per cubic millimeter (cu.mm) – Since the patient was bleeding, the relatives of the patient took discharge from the Hospital and on the same date admitted him to another Hospital where he died– SCDRC held that the operating surgeon (respondent no.1) was medically negligent in operating the patient when the platelets count was so low and inter alia awarded Rs.4 lakhs as compensation to be paid by the Hospital and Rs.2 lakhs by respondent no.1 – NCDRC set aside the compensation awarded against respondent no.1 holding that Rs.4 lakhs awarded against the hospital is just compensation – On appeal, held: At the time of admission, the recorded history of the patient was complaint of pain in abdomen, fever and haemorrhage in both eyes for the past five days – However, there is no evidence of critical condition of the patient to be operated upon even with low platelet count – Surgery is not proved to be of immediate necessity or the only life saving option to save life of a patient who had critical platelet count – Action to operate upon the patient cannot be said to be prudent decision – It is a case of unreasonable decision of the Operating Surgeon to operate and not a case of “bit negligent” so as to absolve the surgeon from the allegation of medical negligence – Finding of NCDRC set aside to that extent – When the SCDRC awarded Rs. 6 lakhs as compensation, the NCDRC should not have interfered with the amount of compensation but could apportion the amount payable by the Operating Surgeon to the Hospital as the liability of Hospital to pay the amount of compensation was vicarious as the death occurred during the course of employment of Operating Surgeon with the said Hospital – Entire amount of Rs.6 lakhs is payable by the Hospital which would be just compensation in the facts and circumstances of the present case – Enhanced compensation of Rs.2 lakhs be paid by the Hospital along with interest at the rate of 6% per annum from the date of the order passed by SCDRC.
Partly allowing the appeal, the Court
HELD : 1.1 At the time of admission, the recorded history of the patient was complaint of pain in abdomen, fever and haemorrhage in both eyes for the past five days. However, there was no evidence of critical condition of the patient to be operated upon even with low platelet count. The surgery to remove round worms was not proved to be of immediate necessity to save life of a patient who had critical platelet count. In the absence of any evidence that the surgery was the only life saving option available at that time, the action to operate upon the patient cannot be said to be prudent decision. In the absence of any evidence that the surgery was the only option even with low blood platelets, the finding of negligence of the operating surgeon cannot be ignored. Thus, it is a case of unreasonable decision of the Operating Surgeon to operate and not a case of “bit negligent” so as to absolve the surgeon from the allegation of medical negligence. Consequently, the finding of NCDRC to that extent is set aside. In respect of amount of compensation, the NCDRC held that sum of Rs.4,00,000/- awarded by the SCDRC against the Hospital is just compensation. [Paras 12-15] [1081-G-H; 1082-A; E-G]
1.2 The compensation has to be calculated on the basis of twin criteria of age and income. But in the absence of income of the father or family, there is no legally acceptable norm available on record for the enhancement of compensation. The SCDRC awarded a sum Rs.4,00,000/- as compensation payable by the Hospital and Rs.2,00,000/- by the Operating Surgeon. The NCDRC found a sum of Rs. 4,00,000/- as just compensation and absolved the Operating Surgeon from any liability. When the SCDRC has awarded a sum of Rs. 6,00,000/- as compensation, the NCDRC should not have interfered with the amount of compensation but could apportion the amount of compensation payable by the Operating Surgeon to the Hospital as the liability of Hospital to pay the amount of compensation is vicarious as the death has occurred during the course of employment of Operating Surgeon with the said Hospital. Therefore, the entire amount of Rs.6,00,000/- is payable by the Hospital which would be just compensation in the facts and circumstances of the present case. The enhanced amount of compensation of Rs.2,00,000/- shall be paid by the Hospital along with interest at the rate of 6% per annum from the date of the order passed by SCDRC on 12.11.2014. [Paras 17-20] [1084-G-H; 1085-A-C] Arun Kumar Manglik v. Chirayu Medical Health and Medicare Private Ltd. 2019 (3) SCALE 333 ; National Insurance Company Limited v. Pranay Sethi and Others (2017) 16 SCC 680 – relied on.
Kusum Sharma and Others v. Batra Hospital
and Medical Research Centre and Others (2010) 3 SCC
480 : [2010] 2 SCR 685 ; V. Krishnakumar v. State of Tamil Nadu and Others (2015) 9 SCC 388:[2015] 8 SCR 100 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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