*HON’BLE SRI JUSTICE L.NARASIMHA REDDY +WRIT PETITION NO.5309 OF 2001 % 18th December 2008 # V.Chalamaiah, S/o Sri Lingaiah, R/o .H.No. 8-1-645, RTC Colony, Nalgonda, Nalgonda District. ..... PETITIONER AND $1 The State of Andhra Pradesh, Rep. by its Secretary to Government, medical & Health DEpt., Secretariat, Saifabad, Hyderabad & 8 others. .....RESPONDENTS ! Counsel for the petitioner: MR.ABHINAND KUMAR SHAVILI ^Counsel for the Respondent No.: GP FOR MEDICAL HEALTH & FAMI.WELFARE < Gist: > Head Note: ? Cases referred: IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE EIGHTEENTH DAY OF DECEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE L.NARASIMHA REDDY WRIT PETITION NO : 5309 of 2001 Between: V.Chalamaiah, S/o Sri Lingaiah, R/o .H.No. 8-1-645, RTC Colony, Nalgonda, Nalgonda District. ..... PETITIONER AND 1The State of andhra Pradesh, Rep. by its Secretary to Government, medical & Health DEpt., Secretariat, Saifabad, Hyderabad. 2The Director of Health & Family Welfare, Government of Andhra Pradesh, Sultan Bazar, Kothi, Hyderabad 3The Andhra Pradesh Vaidya Vidhana Parishad, Rep. by its Director, Kothi, Hyderabad. 4The District Collector and Magistrate, Nalgonda, Nalgonda District. 5The District Medical and Health Officer, Nalgonda, Nalgonda District. 6The Superintendent, Governmet District Heda Quarters Hospital, Nalgonda, 7Dr.Vinod Kumar, ENT Surgeon, Government District Head Quqrters Hospital, Nalgonda, 8Dr.Lalitha, Anesthetist, Area Hospital, Medak District. 9Dr.Uday Singh, Anesthetist, Governmet District Heda Quarters Hospital, Nalgonda, Nalgonda District. .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to to issue a writ order or direction more particularly one in the nature of Writ of Mandamus, a) declare that the 1st respondent is vicariously held responsible for the acts committed by its employees i.e., 7 to 9 herein for an act of tort and on the above basis, b) direct the state Govt and its employees i.e.. respondents 7 to 9 herein to pay a sum of Rs. 10,00,000/- towards damages for having committed an act of tort which resulted the death of the Petitioner's son due to sheer medical negligence and also causing enormous suffering, mental agony and grief to the petitioner with interest thereon @ 18 % p.a and pass Counsel for the Petitioner:MR.ABHINAND KUMAR SHAVILI Counsel for the Respondent No.: GP FOR MEDICAL HEALTH & FAMI.WELFARE The Court made the following : THE HON'BLE MR JUSTICE L.NARASIMHA REDDY WRIT PETITION NO : 5309 of 2001 ORDER: The petitioner is a resident of Nalgonda. He had a son by name Hari Krishna. On 24.02.1999, while Hari Krishna was travelling from Devarakonda to Nalgonda, on a scooter, an accident occurred and he suffered injuries. He was admitted to the District Head Quarters Hospital, Nalgonda, for treatment immediately and a Medical Legal Case was registered. It is stated that the patient recovered from all the injuries suffered by him in the accident and at the final stage, a deformity in the nose was noticed. On 04.03.1999, the ENT specialist of the Hospital opined that some surgical operation is necessary for that purpose. Accordingly, a surgery was performed on 05.03.1999 for correction of the deformity in the nose. When certain complications were noticed, during the course of operation, in the general health condition of the patient, corrective measures were taken and thereafter, the patient was shifted to Osmania General Hospital. It is stated that the case was referred to Nizam’s Institute of Medical Sciences (NIMS) and ultimately on 07.03.1999, the patient died, while under treatment. In the post mortem conducted on the dead body, the reason for the death was indicated as “hypoxic encepholopathy”. The petitioner contends that the death of his son occurred on account of the negligence on the part of the team of doctors, who conducted the operation on 05.03.1999, in ensuring proper supply of oxygen and that by the time, the patient was shifted to Hyderabad, it was too late. The petitioner claims a sum of Rs.10,00,000/- as compensation from the State. The 6th respondent, Superintendent of the Hospital filed a counter affidavit. He narrated the nature of treatment accorded and type of operation conducted upon the son of the petitioner. The circumstances, under which the patient had to be shifted to Hyderabad, are also mentioned. He flatly denied any negligence in the matter of performance of duties by the team of Doctors, who conducted the operation. He however contends that the treatment itself was started from 24.02.1999 and at no point of time, any laxity was exhibited. He pleads that the patient died on account of certain irrecoverable complications, and the State cannot be held liable to pay the compensation. Sri Abhinand Shavili, learned counsel for the petitioner submits that the treatment of the patient went on properly upto 04.03.1999 and negligence was exhibited in the course of operation conducted on 05.03.1999 for correction of deformity in the nose. He submits that team of doctors did not verify even the basic things, such as proper supply of oxygen, and the finding in the post mortem clearly discloses that the patient died on account of improper supply of oxygen during the course of operation. Learned Government Pleader for Medical and Health on the other hand submits that the son of the petitioner was admitted to the hospital with multiple injuries and even according to the petitioner, proper and suitable treatment was accorded for the injuries. He stated that operation for correction of deformity in the nose was also conducted perfectly and the development of fits by the patient was not on account of any lapses during the course of operation. Soon after the occurrence of accident on 24.02.1999, resulting in injuries to the son of the petitioner, he was admitted to the District Head Quarters Hospital at Nalgonda. A Medical Legal case was registered and treatment was started. By 04.03.1999, all the injuries are said to have healed, responding to the treatment given at the hospital. The patient was examined by a team of Doctors, when a nasal deformity was noticed. After taking the preparatory steps, the operation was performed on 05.03.1999. After substantial progress in the operation, the patient developed certain complications. Every possible step, at their level, was taken by the team of doctors comprising of respondents 7 to 9. The amount of interest and anxiety exhibited by them is evident from the fact that an ambulance was immediately arranged and a surgeon, with required medicines, accompanied the patient to Osmania General Hospital on the same day at 7:00 pm. The patient was handled by the Osmania General Hospital as well as the Nizam’s Institute of Medical Sciences on 5th, 6th, and 7th March 1995. The patient died on 07.03.1995. The writ petition is filed in the year 2001. It is no doubt true that notices were exchanged before that. The fact however remains that the petitioner did not enclose any supporting material to substantiate his contention as to the exact cause of death. Unless it is squarely established that the death was on account of any specified reason and that respondents 7 to 9 have directly or indirectly contributed for such a situation, this Court cannot hold them personally, or the Government in general, as liable for the death of the son of the petitioner. It is not out of place to mention that the individual was admitted in the hospital with multiple injuries, and the complications that arise out of such injuries, some latent and some patent, have their own way of manifesting themselves. It is difficult to say with an amount of precession that the external or internal injuries have subsided completely and once for all. This Court can hold the Hospital or the team of doctors guilty of negligence, if only there are undisputed facts or irrebuttable material. No such thing exists in the instant case. Therefore, it cannot be said that there was any negligence or failure to take proper care on the part of the Hospital headed by respondent No.6, or individual Doctors, impleaded as respondents 7 to 9. With the finding recorded above, the writ petition must end up in dismissal. This Court is of the view that the petitioner had suffered not only mental shock on account of the accident but also agony on account of the death of his son, during the course of treatment. Though not as an agency that had extended the medical treatment to the deceased, but as a protector of its citizens, the State can be required to compensate the petitioner to certain level. It is not out of place to mention that the Government had evolved various schemes to protect the helpless, needy as well as the dependants of those, who die in accidents. This Court is of the view that ends of justice would be met if a sum of Rs.50,000/- is awarded as solatium and not as compensation to the petitioner. Hence, the writ petition is disposed of, directing respondent No.4 to pay a sum of Rs.50,000/- (Rupees Fifty Thousand Only) to the petitioner, within a period of three (3) months from the date of receipt of a copy of this order. There shall be no order as to costs. _________ 18.12.2008 JSU Note: LR copy to be marked. B/o Jsu ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1.2CCs to 2.2CD copies Form-NIC-OGS/WP{KKG} THE HON'BLE MR JUSTICE L.NARASIMHA REDDY WRIT PETITION NO : 5309 of 2001 Date: 18.12.2008 JSU