Patient did not receive para-medical help which she needed in her condition - Even though no evidence suggesting that death of wife of the complainant was direct or proximate cause of medical negligence - Deficiency in Medical Service established

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

Before :- R.K. Batta, Presiding Member and S.K. Naik, Member.
Revision Petition No. 3247 of 2008. D/d. 2.2.2009.

Commandant, Base Hospital (Army) Delhi Cantt. and Ors. - Petitioners
Versus
WG. CDR. K.K. Chaudhary (RETD.) - Respondent

For the Petitioners :- Mohan Kumar, Advocate.
For the Respondent :- V.S. Tomar, Advocate.

ORDER

R.K. Batta, Presiding Member. - The petitioners opposite parties (hereinafter referred as opposite parties) have come in revision against concurrent findings of two Fora below wherein it was held that there was deficiency in giving paramedical services to the wife of the complainant.
2. The wife of the complainant was admitted in Base Hospital (Army) at Delhi Cantt. on 30.11.2003 as she was suffering from lever cirrhosis
. According to the complainant, his wife was completely bedridden and required help of nursing staff 'female ayah'. However, according to the complainant he had to assist his wife with bed pan during visiting hours. Serious allegations were made by the complainant against Dr. Lt. Col, Pankaj Puri, Gastroenterologist. The complainant has further alleged that Lt. Col. Puri forced him to get Cat-scan of his wife immediately from outside agency, i.e., Saral Diagnostic, Pitampura.
3. Initially, the complaint was dismissed on account of objection taken by the opposite parties that wife of the complainant was not a consumer within the meaning of Section 2(l)(d) of the Consumer Protection Act, 1986. This objection was upheld by the District Consumer Forum vide order dated 3.1.2005 and the complaint was dismissed. The complainant filed appeal before the State Commission and the State Commission vide order dated 24.8.2006 held that wife of the complainant was a consumer qua opposite parties. The appeal was allowed and the matter was remanded back to the District Forum for decision on merits. The District Consumer Forum found that wife of the complainant was suffering from terminal cancer and there was no chance of full recovery. The District Forum also found that there was no evidence to prove that death of wife of the complainant was on account of medical negligence, However, the complainant was able to establish that his wife was not provided with needed help of nursing staff 'female ayah'.
The District Forum also found that it was the duty of the opposite party hospital to ensure 24 hours nursing help to the patients and the opposite party have not specifically disputed that there was paucity of nursing staff and at times not even a single nurse was available to attend of serious patients like complainant's wife. Therefore, the District Forum came to the conclusion that the opposite party-hospital and treating doctors should have allowed the daughter of the complainant to stay during night but she was not allowed.
It is pertinent to note that the wife of the complainant expired on 8.12.2003 and admittedly no nurse or 'ayah' was present when she breathed her last. Thus, it was held that the wife of the complainant did not receive paramedical help which she needed in her condition. Accordingly, the opposite parties were directed to pay a sum of Rs. 50,000 as compensation to the complainant for mental anguish, trauma and harassment on account of omissions and commission on the part of the Dr. Lt. Col. Pankaj Puri. The said amount of compensation was said to take care of the cost of Cat-scan also, besides a sum of Rs. 5,000 was ordered to be paid as costs.
4. The order-of the District Consumer Forum was challenged by the opposite parties before State Commission. The State Commission concurred with the findings of the District Forum and dismissed the appeal.
5. The revision has been filed with delay of 29 days. We have heard the learned Counsel appearing on both sides. For the reasons mentioned in the application for condonation of delay, delay in filing the revision is condoned.
6. Learned Counsel for the petitioner placed reliance on the Constitutional Bench Judgment of the Apex Court in Confederation of Ex-Servicemen Association v. Union of India and others, (2006) 8 SCC 399, and drew our attention to page 423 of the said judgment. It was argued that wife of the complainant was suffering from malignant disease and the disease being incurable was not entitled to be admitted as a matter of right but on account of humanitarian grounds and medical ethics, wife of the complainant was admitted in the Base Hospital (Army). It was further urged that all necessary medical services as well as para-medical aid was provided to the wife of the complainant. It was also pointed out by the learned Counsel for the petitioner that though the wife of the complainant was admitted initially on 30.11.2003 yet she was discharged on 5.12.2003 but she had to be admitted again on 5.12.2003 evening in ICU Ward due to G.I. Upper Bleeding. She was shifted to Family Ward on 6.12.2003 and again on 7.12.2003 evening she was shifted to ICU Ward wherein she expired in the early morning of 8.12.2003. It was also contended by the learned Counsel for the petitioner that no affidavit, by any witness including daughter of the complainant was filed. He, therefore, contends that the orders of Fora below are required to be set aside since there was no deficiency in service on the part of the opposite parties.
7. Learned Counsel for the respondent submitted before us that it was only on 14.12.2003 that it was detected that wife of the complainant was suffering from liver cancer; that she was discharged on 5.12.2003 morning but was again admitted on 5.12.2003. In the evening on 6.12.2003 daughter of the complainant was allowed to stay and the wife of the complainant was put on dangerously ill condition. On 7.12.2003 no one was allowed to stay and no ayahs were available and the wife of the complainant died in the early morning of 8.12.2003 when no nursing staff was available and the complainant was not even informed of her death and he learned only after he came to the Hospital. Reliance was placed on the judgment of the Apex Court in Laxman Thamapa Kotgiri v. G.M. Central Railway and others, (2005) 1 Scale 600, It was also pointed out by the learned Counsel for the respondent that the petitioner had paid contribution of Rs. 18,000 for obtaining medical benefits.
8. The wife of the complainant was initially admitted to Officers' Family Ward of Base Hospital, Delhi Cantt, on 30.11.2003. Tests were carried out including Cat-scan etc. Admittedly, wife of the complainant was suffering from lever cirrhosis and was admitted on 30.11.2003. On that day X-ray chest was taken which had shown suspicion of metastatic lesions and she was advised CECT abdomen and chest to rule out malignancy, CECT confirmed disseminated hepato cellular carcinoma (Lever Cancer). These facts are mentioned in para 3A of the revision. She was discharged on 5.12.2003 but was again admitted on the night of 5.12.2003 due to Upper G.I. Bleeding. However, malignancy of the disease was detected after the admission of the wife of the complainant on 30.11.2003.
It was not proper on the part of the opposite parties to take up the plea that the wife of the complainant was not entitled to treatment at Military Hospital and especially after opposite parties had admitted her again on 5.12.2003. According to the learned Counsel for the petitioner, she was admitted on humanitarian ground and medical ethics. Be that as it may, once the wife of the complainant was admitted, the opposite parties cannot turn around and say that she was not entitled to treatment. Once she was admitted, it was the duty of the opposite party to provide proper treatment and paramedical aid.
9. The case of the complainant is that his wife was not provided adequate paramedical aid during the time she was admitted from 5,12.2003 till her death on 8.12.2003. The complainant has also stated that he had taken permission from Duty Medical Officer to allow his daughter to stay with his wife on 7.12.2003 but Dr. Lt. Col. Pankaj Puri did not permit his daughter to stay with his wife, even though nursing staff was not available.
10. On the basis of material on record two Fora below have come to the conclusion that the para-medical aid was not available and the daughter of the complainant was not permitted to stay for providing such aid even though his wife was completely bedridden. Admittedly, the wife of the complainant was put at dangerously ill list on 7,12 2003. This fact is mentioned in paragraph 3 (c) of the revision. It appears that no affidavit evidence of Dr. Lt. Col. Pankaj Puri was filed against whom serious allegations of neglect in providing para-medical help were made and who did not permit the daughter of complainant to stay on the fateful night of death of wife of the complainant even though permission had been taken from DMO. In spite of this, proper and adequate nursing aid was not provided to the wife of the complainant. The District Forum has held :
    "The complainant has, however, been able to establish that his wife was not provided with needed help of nursing staff female ayahs. It is not disputed that wife of the Complainant was terminally ill, immobile and completely bedridden. She could not undertake even simple chores such as taking medicines, going to bath-room, taking water etc. without help of an attendant. In these circumstances, it was the duty of the OP hospital to ensure 24 hours nursing help to the patient. OPs have not specifically disputed that there was paucity of nursing staff and at times not even a single nurse ayah was available to attend to serious patient like complainant's wife. In such circumstances, the OP hospital and the treating doctors should have allowed the daughter of the complainant who offered to attend to her mother during night but she was not allowed. Wife of the complainant expired on 8.12.2003 and admittedly no nurse or ayah was present when she breathed her last.
The complainant was not even informed about her death and when he came to visit her in the morning, he learned that his wife had expired during the night. We find some substance in the -argument that had some nurse or ayah been present on the night of 8.12.2003, she would have called the doctor to provide some relief to the patient and in the absence of nursing staff ayah, complainant's wife died without receiving required help, As we have noted above, there may be no evidence suggesting that death of wife of the complainant was direct or proximate cause of medical negligence but it has been shown that she did not receive para-medical help which she needed in her condition.
11. The findings of Fora below are based on material on record and we have no reason to take a different view of the matter against the findings of two Fora below.
12. The opposite parties had first challenged that the wife of the complainant was not a consumer and this submission was even advanced before us. In the light of the Apex Court in Laxman Thamappa Kotgiri v. G.M. Central Railways and others, (supra) and the judgment of the Apex Court in Indian Medical Association v. V.P. Santha, (1995) 6 SCC 651, there is no merit in the objection taken by the petitioners opposite parties since it is crystal clear of that where medical service was rendered as part of terms and condition of service, it would not amount to free service and would constitute service for the purpose of the Act.
13. In view of the above, we do not find any merit in this revision except that we find that in the facts and circumstances of the case, compensation awarded is rather excessive and on the higher side. In our opinion, compensation of Rs. 25,000 would be just, fair and adequate. The revision is accordingly partly allowed with no order as to costs.
Revision petition partly allowed.
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