HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RFA No.: 13 of 2002 Reserved on: 18.12.2008 Decided on: 31.12.2008 Budhi Singh and another ………Appellants. Versus State of H.P. and others ………Respondents. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the appellants: Mr.Vinay Thakur, Advocate. For respondent No.1: Ms.Shubh Mahajan, Deputy Advocate General. For respondent No.2: Mr.Shrawan Dogra, Advocate. For respondent No.3: Ms.Sumeet Kaur, Advocate. For respondent No.4: Mr.Rakesh Jaswal, Advocate. V.K. Ahuja, J: This is a an appeal filed by the appellants under Section 96 of the Code of Civil Procedure read with Section 20 of the H.P. Courts Act, against the judgment and decree dated 13.11.2001, passed by the learned District Judge, Shimla, vide which the suit of the appellant/plaintiffs for recovery of Rs.5.00 lacs as damages as against the respondent/defendants was dismissed. ___________ 1.Whether reporters of Local papers may be allowed to see the judgment? Yes. - 2 - Briefly stated the facts of the case, as alleged by the plaintiffs, are that plaintiff No.1 was married to deceased Rekha on 26.5.1986 and from this wedlock, plaintiff No.2 was born. The suit for the recovery of the amount as damages has been filed by the husband of Smr.Rekha since the deceased and plaintiff No.2, minor daughter of plaintiff No.1 and the deceased Rekha. The allegations made by the plaintiffs were that Smt.Rekha Thakur was pregnant and the delivery was due on 2.8.1995. She was brought to Deen Dayal Hospital, Shimla on 31.7.1995 and was examined by Dr. Mrs.Kumar and she was admitted in the Hospital. She was given some drips. At about 9.00 p.m., the attending doctor Mrs.Sudha Parkash observed that there may be some complication and that it was a case for caesarian operation and accordingly doctor Mrs.Bajaj was also consulted by Dr.Sudha Parkash and thereafter Rekha Thakur was taken to Kamla Nehru Hospital at about 10.00 p.m. Smt.Veena Kaundal, defendant No.2, who was posted as Staff Nurse at Kamla Nehru Hospital, was apprised of the whole situation and the said Staff Nurse showed callousness and apathy at the time of the admission of the patient which was refused, though the patient was in precarious condition. Defendant No.2 Veena Kaundal irritatingly said that it was the practice of the Deen Dayal Hospital to send the patients there and enjoy sleep throughout night. It was further alleged that with great efforts and as a result of repeated requests of plaintiff No.1 and other persons accompanying the patient, the patient Rekha Thakur was admitted in the Hospital. Thereafter, Dr.Anita Pal, defendant No.3, came and examined the patient. The patient was taken to the labour room and plaintiff No.1 and other persons accompanying him demanded - 3 - immediate operation. The attendants accompanying the patient were told at about 2.00 a.m. on 1.8.1995 that delivery has taken place and some blood was needed. The plaintiff called his friends and relatives to Deena Dayal Hospital for donating the blood and four units of blood were donated there. Thereafter, plaintiff No.1 was in Deen Dayal Hospital where he was told that Rekha has died. The male child born was sent to Indira Gandhi Medical College & Hospital, who was having some injuries on his head and the said child also died on the following day. It was further alleged that after the death of Rekha, the then Chief Parliamentary Secretary, Shri S.P. Thakur came to Kamla Nehru Hospital and plaintiff and others were protesting against the apathetic and negligent conduct of the staff, who took part in the delivery process. Thus, the plaintiff alleged that the patient needed immediate caesarian operation and the patient remained unattended and the conduct of the respondent-employees fell short of normal medical skill and care expected. The Chief Parliamentary Secretary ordered inquiry into the matter, but the record was fabricated. It was alleged that defendants No.2 to 4 committed acts of omission and commission during employment under defendant No.1 and as such all the defendants are liable to pay damages for the negligence since plaintiff No.1 has been deprived of the company of his wife, while plaintiff No.2 has been deprived of affection and care of her mother and accordingly, the plaintiffs claimed a sum of Rs.5.00 lacs as damages from the defendants. Defendant No.1 i.e. State of H.P. took up the plea that the allegations made are wrong and baseless. It was pleaded that Rekha Thakur had been brought to the Hospital in extremely precarious condition and was given proper - 4 - medical treatment throughout her admission in both the Hospitals. She was given the treatment as per the advice given by the doctors as per the need of the hour. It was denied that the staff was apathetic and negligent in the treatment of the deceased and it was pleaded there was no negligence in the treatment of the said patient. The defendants are not liable to pay any damages due to the death of the lady which was due to Atomic Post Partum Hemorrhage and was beyond the control of the defendants. Defendant No.2 denied the allegations in full and it was denied that Smt.Rekha had been advised caesarian operation or that she was in precarious condition. It was submitted that the decision to admit or not to admit a patient is taken by the doctor concerned and it was not taken by defendant No.2 i.e. Staff Nurse. She pleaded that she admitted the patient as and when directed by the doctor concerned and denied the allegations made as against her. Defendant No.3 pleaded that she was not on duty on 31.7.1995 since she was on summer vacation from 25.7.1995 to 31.7.1995 and she pleaded that she examined the patient alongwith other doctors named by her and the patient was properly attended and the required medical treatment was given to her as advised by the doctors concerned. Defendant No.4 pleaded that she joined her duties at 9.30 a.m. on 1.8.1995 and the patient was already admitted in the labour room on the previous night of 31st July, 1995. It was submitted that the line of treatment had already been decided by Dr.Keerti Iyengar and other doctors who were on duty and defendant No.4 followed the line of treatment already decided by his - 5 - seniors. The allegations made in regard to the negligence were denied by defendant No.4. On the pleadings of the parties, the following issues were settled by the learned trial Court: 1. Whether the death of Rekha Thakur and her newly born child took place due to some act of negligence on the part of defendants No.2 to 4? OPP 2. If issue No.1 is proved, whether the plaintiffs are entitled to compensation, if so how much and from whom? OPP 3. Whether the suit is not maintainable? OPD-2 4. Whether the plaint does not disclose any legal and enforceable cause of action? OPD-2 5. Whether the suit is bad for misjoinder of defendant No.2? OPD-2 6. Whether the suit lacks material particulars? OPD-2 7. Whether the suit is bad on account of non-service of notice under Section 80 C.P.C.? OPDs. 8. Relief. In support of these issues, the plaintiffs examined three witnesses and the defendants examined 10 witnesses. The learned trial Court decided Issues No.1 to 3 as against the plaintiffs and in favour of the defendants and consequently dismissed the suit of the plaintiffs in full. I have heard the learned counsel for the parties and have gone through the record of the case. The submissions made by the learned counsel for the appellant/plaintiffs were that the trial court had erred in holding under issue No.1 that the plaintiffs had failed to prove that the death of the patient and her child took place due to - 6 - some act of negligence on the part of defendants No.2 to 4. It was submitted that the defendants had failed to give timely medical advice to the patient or the treatment as was required. It was also submitted that the patient was sent to Kamla Nehru Hospital for caesarian operation which was not done immediately as was required and since the officials of defendant No.1 had failed to perform their duties as required by the medical profession or law and as such the findings to the contrary under issue No.1 are liable to be reversed and accordingly the plaintiffs are entitled to reasonable damages from the defendants. To substantiate his plea, the learned counsel for the appellants had taken this Court through the evidence led by the plaintiffs to substantiate issue No.1 and other issues. I may make a brief reference to the evidence led by the plaintiffs in this regard. PW-1 Budhi Singh, plaintiff No.1, has stated about the facts that his wife was pregnant and she was taken to Ripon Hospital on 31.7.1995 for check up since she was having some pain. Dr.Mrs.Kumar did the medical check up and she advised that the patient be admitted as she could deliver the child any time. She was taken to the labour room and admitted and was given glucose drips. She further stated that around 9.00 p.m., he was told by Dr.Sudha Parkash of Ripon Hospital that his wife’s condition was critical, she had developed some medical complications and surgery was required for the delivery of the child. He further stated that she told him that there was no arrangement in the Ripon Hospital for the operation and his wife be taken to Kamla Nehru Hospital. She made a formal reference to Kamla Nehru Hospital and he went there and gave a - 7 - telephonic call to his nephew to come to the Hospital alongwith his some friends for donating blood in case of need. PW-1 Budhi Singh further stated that he reached Kamla Nehru Hospital with his wife around 10.00 p.m. and defendant No.2 Staff Nurse was on duty who was shown the reference slip and she got infuriated and stated that Ripon Hospital doctors shirk work and they were in the habit of making such references to their Hospital. He requested her that since the condition of his wife was critical, he was not to be blamed for the reference to their Hospital. Finally, she admitted his wife in the Hospital and he asked the Staff Nurse to call the Doctor, but she did not call the Doctor. He was further told that Dr.Anita Pal would be attending his wife as and when she would come to the Hospital. In the meanwhile, his nephew, alongwith others, reached there and his sister-in-law and her husband were already there with him when they went to Ripon Hospital. He admitted that there were 2-3 young men who had covered their mouth and noses with green coloured clothes which doctors usually wear while conducting operation and those young men called Dr.Anita Pal who came around 11.00 p.m. and enquired from the Staff Nurse about his wife and stated that she was alright. He further stated that his sister-in-law’s husband was outside the Hospital with him. On the next day, at 2.00 p.m. he was told that his wife had delivered a male child but the child had got injuries since his head was pressed. They were told to take the child to Snowdon Hospital for management and treatment of the injuries which were on the head of the child. He deputed his sister-in-law Usha Thakur to IGMC Hospital with the new born child and he himself remained at the Kamla Nehru Hospital to make arrangements for the blood which was not - 8 - available in Kamla Nehru Hospital. His nephew’s friends had come to Ripon Hospital, donated blood which was taken to Kamla Nehru Hospital and he was asked to fetch more blood when he got a telephonic message that his wife had died. He also stated about the visit of the then Chief Parliamentary Secretary Shri S.P. Thakur and the complaint made to him about the behavior of the Staff of the Kamla Nehru Hospital, particularly, of defendant No.2. He then served a legal notice on the defendants and has proved the postal receipts also. PW-2 Smt.Usha Thakur, sister-in-law of the plaintiff, had stated about the fact that her sister was in the labour room at 1.00 or 1.30 p.m. and around 8.30 Dr.Sudha Parkash came and saw her sister and had consultation with Dr.Bajaj. Her sister remained on drips for 8-9 hours and they were advised to take her to Kamla Nehru Hospital for caesarian operation. They took the patient to Kamla Nehra Hospital and showed the reference chit given to them by Dr.Sudha Parkash where the Staff started rebuking her. She again went to defendant No.2 and made a request to her to admit her sister and call the doctor for providing immediate treatment. Her sister was then taken to labour room and they were told that Dr.Pal would come on round and would see the patient, who came at about 11.00 p.m. and defendant No.2 showed the reference slip. She came up with the plea that no doctor or nurse attended upon her sister for the whole night, which was never stated by the husband of the patient, namely, plaintiff No.1 Budhi Singh, when he appeared in the witness box as PW-1. PW-3 Atma Ram, Clerk of the office of G.M. Telecom, Shimla, had proved the last pay certificate of deceased Rekha Thakur, which is Ext.P-2. - 9 - Before I refer to the evidence led by the defendants, I may make a reference to the case law cited by the learned counsel for the plaintiffs, to substantiate his plea that there was negligence on the part of the medical officers and they had not acted immediately when the patient was admitted to the hospital. Reliance was placed upon the decision in Achutrao Haribhau Khodwa and others versus State of Maharashtra and others, (1996) 2 Supreme Court Cases 634. A perusal of the same shows that a reference was made to the test for determining negligence, reasonable skill, knowledge and care required and in that case, the negligence was that a mop (towel) was left inside abdomen while conducting sterilization operation by doctor in Hospital, which resulted in causing pus formation and peritonitis . The facts of the case are different and there is no such proof of negligence on record in the present case. The decision in Savita Garg (Smt.) versus Director, National Heart Institute, (2004) 8 Supreme Court Cases 56, was also replied upon. The facts of that case were that a patient was admitted to the Heart Institute for medical treatment and it was claimed that because of the negligence of the doctors of the Institute, he could not get proper medical treatment and ultimately died. The claim was filed under the Consumer Protection Act and this decision will only be attracted in case it is proved on record, in the present case, that there was negligence on the part of the doctors in any manner. The decision in Dr.Suresh Gupta versus Govt. of N.C.T. of Delhi and another, 2004(3) RCR (Criminal) 925, shows that the death of the patient was caused due to negligence. It was held that the doctor was liable to - 10 - pay compensation but the degree of negligence has to be so gross and his act was so reckless as to endanger the life of the patient, then he was also criminally liable for offence under Section 304-A IPC, apart from the damages under the civil law. The decision in Dr.Parveen Garg versus State of Haryana and another, 2008(4) RCR (Criminal) 224, was relied upon wherein the case was under Section 304-A IPC and the doctor who had to perform the operation of gall bladder stone did not come when asked and he came late and the patient died meanwhile. It was held that no case was made out to quash the FIR under Section 304-A IPC. The decision in Jacob Mathew versus State of Punjab and another, 2005(3) RCR (Criminal) 836, was relied upon in which while performing an operation, the hospital failed to make available gas cylinder and the patient died. It was held that the doctor was not liable under Section 304-A IPC, for which criminal proceedings were quashed though the Hospital may be liable under civil law. It was observed that an error of judgment on the part of a professional is not negligence. A private complaint against the doctor may not be entertained unless the complaint is supported by another competent doctor. On the other hand, the submissions made by the learned counsel for the defendants were that there is nothing on record to show that any caesarian operation was advised by the doctors of Deen Dayal Hospital or that it was not performed at Kamla Nehru Hospital. It was also submitted that there is nothing on record to show that there was any delay in providing the blood to the patient or in attending her since she was immediately admitted to the Hospital when she - 11 - was referred to Kamla Nehra Hospital and was attended to by the doctors. There is no evidence to show that there was any delay and as such it was submitted that the doctors were not required to examine the patient on the demand of the attendants of the patient, but they had to go by the requirements as per the condition of the patient. It was also submitted that there is nothing to show that there was any negligence by the Medical Officer, which resulted in the injuries on the head of the new born child, as alleged. It was also submitted that the learned trial Court had rightly concluded that there is no medical evidence to prove that there was any negligence on the part of defendant No.1 or its doctors attending on the patient. To substantiate their case, the defendants had also examined some witnesses. DW-1 Puran Chand, Clerk, IGMC, Shimla, had only brought the record. DW-2 Dr.Anjali Soni has stated that she was a Post Graduate Student in Gynecology and was undergoing training as a student in Kamla Nehru Hospital. She had attended the patient at 9.30 a.m. on 1.8.1995 in discharge of her duties and has proved the history sheet of the patient Ext.DW-1/A and stated that the notes were in her hand. She stated that the patient was attended upon by Dr.Rajiv Sood and had been admitted at 10.30 p.m. on 31.7.1995. The initial treatment was given by Dr.Rita Mittal, who attended the patient till 6.00 a.m. on 1.8.1995 and thereafter she was attended by Dr.Kirti Ayangar and these facts have been mentioned by her in the history sheet of the patient. In cross examination, she stated that the treatment is to be given by the Medical Officer and not by the Staff Nurse. She stated that she attended the patient in the labour room. - 12 - DW-3 Dr.Kalpna, another Post Graduate Student, has stated that a newly born child was brought from Kamla Nehru Hospital to IGMC, Shimla, who had suffered severe asphyxia. She attended the child and Dr.Neelam Grower also attended the child apart from two other doctors and she has proved the history sheet Ext.DW-2/A in this regard. She denied that there were any injuries on the head of the child which appeared on account of any negligent pulling of the child. DW-4 Dr.Nalneesh Sharma, Registrar, Kamla Nehru Hospital, who was also undergoing Post Graduate Training and was on duty on 1.8.1995, has stated that he assisted Dr.Anita Pal in post delivery arrangements and there were other medical officers also who were attending upon the patient. DW-5, Kuldip, a Clerk from Kamla Nehru Hospital, had proved the photocopy of the office sheet record in regard to baby. DW-6 Dr.Rita Mittal has stated that she was on duty on 31.7.1995. She stated that the patient was admitted at 10.30 p.m. in Kamla Nehru Hospital. She attended the patient at 10.45 p.m. and had proved the admission slip Ext.DW-1/C and has also proved the treatment chart Ext.DW-1/C-A and prescribed the treatment which was required. She denied her knowledge in case the patient had been brought on a reference of the doctors of Ripon Hospital. She stated that whenever they feel that operation/caesarian operation is required, they inform the attendants of the patients to arrange for the blood. She was not present at the time of delivery of the child. DW-7 Dr.Rajeev Sood, defendant No.4, has stated that he went to the Kamla Nehru Hospital on 1.8.1995 at 9.30 a.m. and the treatment was already - 13 - given to the patient as prescribed by Dr.Rita Mittal and Dr.Kirti Ayangar, who were on duty upto 9.30 a.m. Dr.Anjali Soni also reached the hospital on 1.8.1995 at 9.30 a.m. and remained on duty in the labour room upto 12.30 p.m. Thereafter, he and Dr.Gaurav Kuthiala attended the patient and consulted Dr.Anjali also who was performing caesarian operation. Other medical officers named by him also came and they extracted the child and the patient started bleeding profusely. He also stated about the complications developed by the patient. Dr.Anita Pal, defendant No.3, who has been examined as DW-8, has stated that she resumed her duty on 1.8.1995 around 11.00 a.m. only. DW-9 Nikka Ram, Junior Assistant, Kamla Nehru Hospital, had brought the joining report of Dr.Anita Pal and has proved the same. DW-10 Veena Kaundal, Staff Nurse and defendant No.2, has denied that she did not admit the patient immediately and stated that within 10 minutes she admitted the patient after getting the approval from Dr.Rita Mittalk, who was on duty and who prescribed the treatment also. She stated that there were 138 indoor patients admitted in the Kamla Nehru Hospital on the night intervening 31.7.1995 and 1.8.1995 and has stated about two caesarian operations performed during the night and two normal deliveries that took place and three other major operations performed as per the general report book maintained by the Hospital. She denied that she misbehaved with any of the attendants. Learned counsel for defendant No.4 had submitted that the patient was admitted immediately in the hospital and was attended to by the Medical Officers and no negligence has been proved as against defendant No.4 or other doctors - 14 - and as such the defendants are not liable. The submissions made on behalf of the State of H.P. are that since no negligence has been proved of any of its employees including the medical officers, the State is not liable to pay any damages. To substantiate his submissions, the learned counsel for defendant No.4 had relied upon the decision in Jacob Mathew versus State of Punjab and another, (2005) 6 SCC 1, a perusal of which shows that the Apex Court had considered the provisions of Section 304-A, death due to criminal medical negligence and had observed as to when the liability of doctors is attracted and the test to be applied in considering these questions. The law laid down was mainly in regard to the negligence of medical officer and as to his liability and prosecution under Section 304-A IPC and when these provisions will be attracted, which is not a case here. The decision in State of Punjab vs. Shiv Ram and others, (2005) 7 Supreme Court Cases 1, shows that their Lordships had considered the law in regard to cardinal underpinning of medical ethics. The questions of torts, negligence and medical negligence, particularly, in cases of sterilization operations and the proof of negligence required in such cases were considered. The decision in Kishore Lal versus Chairman, Employees’ State Insurance Corporation, (2007) Supreme Court Cases 579, shows that the provisions of Consumer Protection Act and the powers of the Consumer Forum were considered. The nature of relationship between a medical practitioner and a patient was also considered and the question of negligence of the Medical Officers was also considered by their Lordships in this case. - 15 - From the