M/S. Spring Meadows Hospital and Another vs Harjol Ahluwalia through, K.S Ahluwalia and Another

M S. Spring Meadows Hospital & Anr vs Harjol Ahluwalia Through K.S. ... on 25 March 1998 Supreme Court of India M S. Spring Meadows Hospital & Anr vs Harjol Ahluwalia Through K.S. ... on 25 March 1998 Author: G Pattanaik Bench: S. Saghir Ahmad G.B. Pattanaik PETITIONER M S. SPRING MEADOWS HOSPITAL & ANR Vs HARJOL AHLUWALIA THROUGH K.S. AHLUWALIA & ANR DATE OF JUDGMENT: 25 03 1998 S. SAGHIR AHMAD G.B. PATTANAIK WITH CIVIL APPEAL NO. 7858 OF 1997 JUDGMENT G.B. PATTANAIK J These two appeals arise out of the order dated 16th June 1997 passed by the National Consumer Disputes Redressal Commission New Delhiin Original Petition No. 2994. The Hospital is the appellant in Civil Appeal No. 77097 while the insurance company is the appellant in the other appeal. When the special leave applications out of which the two aforesaid appeals arise were listed for preliminary hearing the court had issued notice limited to the award of Rs. 5 lacs as compensation to the parents of the child even though the insurance company has raised the question of its liability to pay the compensation in question A Complaint Petition was filed by minor Harjot Ahluwalia through his parents Mrs. Harpreet Ahluwalia and Mr. Kamaljit Singh Ahluwalia before the Commission alleging that the minor was being treated at a Nursing Home in Noida in December 1993. As there was no improvement in his health the said minor was brought to M s. Spring Meadows Hospital appellant in Civil Appeal No 77097 on 24th of December 1993. In the hospital the patient was examined by the Senior Consultant Paediatrician dr. Promila Bhutani and on the advice of the said doctor the patient was admitted as an in patient in the hospital. The doctor made the diagnosis that the patient was suffering from typhoid and intimated the parents that medicines have been prescribed for the Indian Kanoon M S. Spring Meadows Hospital & Anr vs Harjol Ahluwalia Through K.S. ... on 25 March 1998 treatment of the typhoid fever. On the 30th of December 1993 at 9.00 a.m. Miss Bina Matthew nurse of the hospital asked the father of the minor patient to get the injection In Lariago to be administered intravenously to the minor patient. The father of the minor child purchased the medicine which was written down by the nurse and gave it whereupon the nurse injected the same to the minor patient. The patient immediately on being injected collapsed while still in the lap of his mother. it was further alleged that before administering the injection the nurse had not made any sensitive test to find out whether there would be any adverse reaction on the patient. Seeing the minor child collapse the parents immediately called for help and the Resident Doctor Dr. Dhananjay attended the patient. Said Dr. Dhananjay told the parents that the child had suffered a cardiac arrest and then by manually pumping the chest the Doctor attempted to revive the heartbeat. The hospital authorities then summoned an Anaesthetist Dr. Anil Mehta who arrived within half an hour and then started a procedure of manual respiration by applying the oxygen cylinder and manual Respirator. In the meantime Dr. Promila Bhutani also reached the hospital and the minor child was kept on a device called manual Respirator. Though the child was kept alive on the manual ventilator but the condition of the child did not show any improvement. In course of treatment as the minor s platelets count fell a blood transfusion was given but still no improvement could be seen. Dr mehta therefore intimated the parents that the hospital does not have the necessary facilities to manage the minor child and the should be shifted to an intensive Care Unit equipped with an Auto Respirator. On the advice of Dr. Mehta the parents brought the child and admitted him in the Paediatric Intensive Care Unit of the All India Institute of Medical Science on the 3rd January 1994 In the Institute the doctors examined the minor child thoroughly and informed the parents that the child is critical and even if the would survive he would live only in a vegetative state as irreparable damage had been caused to his brain and there was no chance of revival of the damaged p[arts. The minor was then kept in the Paediatric Intensive Care Unit of the AIIMS till 24th of January 1994 and was thereafter discharged after informing the parents that no useful purpose would be served by keeping the minor child there. Dr. Anil Mehta as well as Dr. Naresh Juneja Chief Administrator of Spring Meadows Hospital however offered to admit the minor child at their hospital and to do whatever was possible to stabilise the condition of the child and accordingly the minor child was again admitted to the hospital. The complainant alleged that the child on account of negligence and deficiency on the part of the hospital authorities suffered irreparable damages and could survive only as a mere vegetative and accordingly claimed compensation to the tune of Rs. 28 lacs On behalf of the appellants objection was filed before the commission taking the stand that no payment having been made it cannot be said that the services of the hospital having been availed for consideration and as such the complainant is not a consumer within the definition of Consumer in the Consumer Protection Act 1986. It was further stated that there has been no deficiency or negligence in service on the part of the doctors of the hospital and the negligence if any is on the part of the nurse who misread the prescription. It was also contended that immediate steps have been taken by Dr. Dhananjay as Well as dr. Mehta and the hospital authorities had summoned three specialists to examine the patient. It was further stated that the patient was taken to the All India Institute of Medical Sciences by the parents for better treatment but on being discharged from the Institute the hospital authorities on sympathetic consideration readmitted the child and are taking all possible steps and giving all possible treatment without any payment and at no point of time there has been any negligence on the part of the doctors attending the minor child in the hospital. It Indian Kanoon M S. Spring Meadows Hospital & Anr vs Harjol Ahluwalia Through K.S. ... on 25 March 1998 was also urged that in any event the liability to pay compensation would be that of the insurer Miss Bina Matthew the nurse who injected the Lariago injection to the child who was opposite party No.2 before the Commission field her objections station therein that she is a qualified nurse and had exercised all diligence and care in discharging her duties. It was further stated that the patient was under the treatment of Dr. Bhutani who had the duty to decide the course treatment and as nurse she was only working under her control and direction. She also stated that as the patent was already taking lariago syrup and when the doctor advised that injection should be given she thought that the same lariago injection to be given and it was the duty of the duty of the doctor to give the injection and take all care The insurer opposite no. 3 which is appellant in Civil Appeal No. 78597 contested the claim and took the defence that there has been no deficiency in service on the part of the reinsurance company and the provisions of the Consumer Protection Act could not be invoked against the insurer. According to the insurer the insurance company issued medical establishment professional negligence errors and omissions insurance policy and the terms and conditions of the policy would indicate that the liability of the insurer if any is to the extent of 12 50 000 and not beyond the same and further the insurer cannot be made liable when the liability in question has arisen on account of negligence or deliberate non compliance of any statutory provisions or intentional disregard o the insured s administrative management of the need to take all reasonable steps to prevent the claim. According to the insurer the nurse Miss Bina Matthew was not a qualified nurse at all and she was not authorised to take up the employment as a nurse not having been registered with any Nursing Council of any State. It was also stated t hat the present state of affairs of the minor child is on account of negligence of an unqualified nurse and therefore the insurer cannot be made liable to pay for any loss or damage sustained. In course of the proceedings before the Commission to assess the minor s condition and rehabilitation requirement the Commission referred the matter to the medical Superintendent Safdarjung Hospital by order dated 28th January 1997 and in pursuance to such order the said minor was examined and a report was received by the Commission from the Medical Superintendent Safdarjung Hospital New Delhi. The Commission also examined witnesses including Dr. J.S. Nanra and Dr. A.S. Ahluwalia who testified that on account of a medicine having been injected the minor suffered from cardiac arrest on account of which the brain has been damaged. on the basis of the oral and documentary evidence on record the Commission came to the conclusion that the child had suffered from cardiac arrest and cause of such cardiac arrest was intravenous injection of lariago of high dose. The Commission also came to the conclusion that there has been considerable delay in reviving the heart of the minor child and on account of such delay the brain of the minor child got damaged. On the question of the negligence of services the Commission came to the conclusion that there was a clear dereliction of duty on the part of the nurse who was not even a qualified nurse and the hospital is negligent having employed such unqualified people as nurse and having entrusted a minor child to her care. The Commission also came to the conclusion that Dr. Dhananjay was negligent in the performances of his duties inasmuch as while Dr. Bhutani had advised that the injection should be given by the doctor but he permitted the nurse to give the injection. The Commission ultimately came to the finding that the minor patient had suffered on account of negligence error and omission on the part of nurse as well as Dr. Dhananjay in rendering their professional services and both of them were Indian Kanoon M S. Spring Meadows Hospital & Anr vs Harjol Ahluwalia Through K.S. ... on 25 March 1998 negligent in performing their duties in consequence of which the minor child suffered and since the doctor and the nurse were employees of the hospital the hospital is responsible for the negligence of the employees and the hospital is liable for the consequences. The Commission then determined the quantum of compensation and awarded 12.5 lacs as compensation to the minor patient. In addition to the aforesaid sum of Rs. 12.5 lacs the Commission also awarded Rs. 5 lacs as compensation to be paid to the parents of the minor child for the acute mental agony that has been caused to the parents by reason of their only son having been reduced to a vegetative state requiring life long care and attention. On the question of the liability of the reinsurance company the Commission came to hold that the said insurance company is liable to indemnify the amount of Rs. 12 37 500 in terms of the policy on account of the liability of the hospital as the case is fully covered under the indemnity clause. The Commission then considered the question as to how the amount of compensation should be disbursed for being spent for the welfare of the child and then issued certain directions with which we are not concerned in this appeal The learned counsel for the appellant appearing for the hospital contended that the complaint having been filed by the minor child who was the in patient in the hospital through his parents the said minor child can only be the consumer and the parents cannot claim any compensation under the Consumer Protection Act for the mental agony they have suffered and as such the award of compensation to the tune of Rs. 5 lacs in favour of the parents is beyond the competence of the Commission. The learned counsel then urged that under the Consumer Protection Act the consumer to whom services has been provided can make a complaint and in the case in hand the services having been provided to the minor patient he becomes the consumer and consequently no compensation can be awarded in favour of the parents of the consumer and according to the learned counsel it is apparent from the provisions of Section 12(1)(a) of the Consumer Protection Act. The learned counsel lastly contended that under Section 14(1)of the Act the Commission would be entitled to pay such amount as compensation to the consumer for any loss or damage suffered by such consumer and in the case in hand the minor child being the consumer the Commission was not competent to award compensation to the parents for the mental agony they have suffered. The learned counsel for the insurer appellant in the other appeal vehemently contended that insurer cannot be held liable to indemnify the hospital who is the insured as the said hospital had employed unqualified people to treat the patients and the direction of the Commission that the insurer would indemnify the insured is unsustainable in law. But we are not in a position to examine this contention advanced on behalf of the learned counsel appearing for the insurer in view of the limited notice issued by this Court. It would not be open for us to entertain this question for consideration as the notice issued by this Court indicates that only the award of compensation to the parents of the minor child and the legality of the same can only the considered. We are therefore unable to examine the contention raised by the learned counsel appearing for the insurer In view of the submissions made by the learned counsel appearing for the hospital the following questions arise for our consideration 1. The minor child being the patient who was admitted into the hospital for treatment can the parents of the child be held to be consumers so as to claim compensation under the provisions of the Consumer Protection Act Indian Kanoon M S. Spring Meadows Hospital & Anr vs Harjol Ahluwalia Through K.S. ... on 25 March 1998 2. Is the commission under the Act entitled to award compensation to the parents for mental agony in view of the powers of the commission under Section 14 of the Act 3. Even if the child as well as the parents of the child would come under definition of the consumer under Section 2(1)of the Act whether compensation can be awarded in favour of both the consumers or compensation can be awarded only to the beneficiary of the services rendered who in the present case would be child who was admitted into the hospital Before we examine the aforesaid questions it would be appropriate to notice the scenario in which the parliament enacted the Consumer Protection Act1 ALL ER 267 an obstetrician had pulled too hard in a trial of forceps delivery and had thereby caused the plaintiff s head to become wedged with consequent asphyxia and brain damage. The trial judge had held the action of the defendant to be negligent but this judgment had been reversed by Lord Denning in the Court of Appeal emphasising that an error of judgment would not tantamount to negligence. When the said matter came before the House of Lords the views of Lord Denning on the error of judgment was rejected and it was held that an error of judgment could be negligence if it is an error which would not have been made by a reasonably competent professional man acting with ordinary care. Lord Fraser pointed out thus The true position is that an error of judgment may or may not be negligent it depends on the nature of the error. If it is one that would not have been made by a reasonably competent professional man profession to have the standard and type of skill that the defendant holds himself out as having and acting with ordinary care then it is negligence. If on the other hand it is an error that such a man acting with ordinary care might have made then it is not negligence Gross medical mistake will always result in a finding of negligence. Use of wrong drug or wrong gas during the course of anaesthetic will frequently lead to the imposition of liability and in some situations even the principle of Res ipsa loquitur can be applied. Even delegation of responsibility to another may amount to negligence in certain circumstances. A consultant could be negligent where he delegates the responsibility to his junior with the knowledge that the junior was incapable of performing of his duties properly. We are indicating these principles since in the case in hand certain arguments had been advanced in this regard which will be dealt with while answering the question posed by us Question Nos. 1 and 3 are inter linked and therefore they are discussed together. The answer to both these questions would depend upon an interpretation of the expression consumer in Section 2(1)(d) of the Act. Section 2(1)(d) is extracted hereinbelow in extenso 2(1)(d) : " Consumer" means any person who Indian Kanoon M S. Spring Meadows Hospital & Anr vs Harjol Ahluwalia Through K.S. ... on 25 March 1998 i) buys any goods for a consideration which has been paid or promised or partly paid an partly promised or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised or under any system of deferred payment when such use is made with the approval of such person but does not include a person who obtains such goods for resale or for any commercial purpose or ii) hires or avails of any services of ra consideration which has been paid or promised or partly paid and paid or promised or partly paid and partly promised or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised or partly paid and partly promised or under any system of deferred payment when such services are availed or with the approval of the first mentioned Explanation For the purpose of sub clause"commercial purpose " does not include use by a consumer of goods bought and used by him exclusively for the purpose of earning his livelihood by means of self employment In the present case we are concerned with clauseof Section 2(1)(d). In the said clause a consumer would mean a person who hires or avails of the services and includes any beneficiary of such services other than the person who hires or avails of the services. When a young child is taken to a hospital by his parents and the child is treated by the doctor the parents would come within the definition of consumer having hired the services and the young child would also become a consumer under the inclusive definition being a beneficiary of such services. The definition clause being wide enough to include not only the person who hires the services but also the beneficiary of such services which beneficiary is other than the person who hires the services the conclusion is irresistible that both the parents of the child as well as the child would be consumer within the meaning of Section 2(1)(d)(ii) of the Act and as such can claim compensation under the Act So far as the second question is concerned the contention of the learned counsel for the appellant is that Section 14 being the provision authorising the Commission to pass appropriate orders under one or more of the clausestoand clausealone being the provision for award of compensation the Commission is entitled to award compensation the Commission is entitled to award compensation for any loss or injury suffered by the consumer due to the negligence of the person whose services had been hired and that being the position it would be open for the Commission to award compensation to the minor child who has suffered injury and not the parents In other words the learned counsel urged that clauseof Section 14 may not be interpreted enabling the Commission to award compensation both to the minor child and his parents. We see absolutely no force in the aforesaid contention inasmuch as the Commission would be entitled to award compensation under clauseto a consumer for any loss or injury suffered by such consumer due to the negligence of the opposite party. If the parents of the child having hired the services of the hospital are consumer within the meaning of Section 2(1)(d)(ii) and the child also is consumer being a beneficiary of such services hired by his parents in the inclusive definition in Indian Kanoon M S. Spring Meadows Hospital & Anr vs Harjol Ahluwalia Through K.S. ... on 25 March 1998 Section 2(1)(d) of the Act the Commission will be fully justified in awarding compensation to both of them for the injury each one of them has sustained. In the case in hand the Commission has awarded compensation in favour of the minor child taking into account the cost of equipments and the recurring expenses that would be necessary for the said minor child who is merely having a vegetative life. Te compensation awarded in favour of the parents of the minor child is for their acute mental agony and the life long care and attention which the parents would have to bestow on the minor child. The award of compensation in respect of respective consumers are on different head. We see no infirmity with the order of the Commission awarding different amount of compensation on different head both being consumers under the Act. Accordingly the Commission in our considered opinion rightly awarded compensation in favour of t he parents in addition to the compensation in favour of the parents in addition to the compensation in favour of the minor child The learned counsel for the appellants in course of his argument has contended that not only the hospital authorities had immediately on their own taken the assistance of several specialists to treat the child but also even after the child was discharged from the All India Institute of Medical Sciences humanitarian approach has been taken by the hospital authorities and child has been taken care of by the hospital even without charging any money for the services rendered and consequently in such a situation the award of damages for mental agony to the parents is wholly unjustified. We however fail to appreciate this argument advanced on behalf of the learned counsel for the appellants inasmuch as the mental agony of the parent will not be dismissed in any manner merely seeing the only child living a vegetative state on account of negligence of the hospital authorities on a hospital bed. The agony of the parents would remain so long as they remain alive and the so called humanitarian approach of the hospital authorities in no way can be considered to be a factor in denying the compensation for mental agony suffered by the parents In the premises as aforesaid the contentions raised by the learned counsel appearing for the appellants having failed the appal fails and is dismissed Accordingly both the appeals are dismissed with costs of Rs. 5 000 Indian Kanoon 

Summary: Background: The Consumer Protection Act of 1986: The Act enables the consumers for speedy settlement of disputes and provides better protection to the rights and interests of consumers. The Act succinctly defines who falls within the ambit of ‘consumer’. It also confers jurisdiction on the Commission on matters comprising of unfair trade practices, defects in goods, and deficiencies in services.  Introduction: The court in this case has helped define the scope of section 2(1)(d) of the Consumer Protection Act and whether such compensation can be granted to a person who hires to avail the services as well. It also enumerated the grounds of medical negligence required to claim compensation by the consumer. Statutory and Constitutional Provisions Discussed: The Consumer Protection Act of 1986 (hereafter referred to as ‘the Act). Sections 2(1)(d) and 14 of the Act. Facts: The complaint petition was filed before the National Consumer Disputes Redressal Commission by Harjot Ahluwalia (who is a minor), through his parents Mrs. Harpreet Ahluwalia and Mr. Kamaljit Singh Ahluwalia. The petition alleged that the minor was brought to M/s. Spring Meadows Hospital on 24th December 1993 as there was no improvement in the condition of his health where he was admitted earlier. The senior consultant upon examining the patient diagnosed him with typhoid and prescribed medicines for the treatment. On one such incident on 30th December 1993, Miss Bina Matthew, a nurse of the hospital instructed the father of the patient to get the injection ‘In Lariago’, which was intended to be administered to the patient intravenously. Upon the purchase of the injection, the same was injected to the patient by the nurse. The patient upon receiving the injection immediately collapsed, following which a resident doctor, Dr. Dhananjay, was called for help. The doctor assessed the patient and stated that he had suffered a cardiac arrest and tried to revive the patient by manually pumping his chest. The patient thereafter was kept under a manual respirator. Despite being placed under the manual ventilator and the necessary blood transfusion having taken place, the minor patient showed no signs of improvement. Subsequently, the hospital authorities informed the parents to shift the patient to a hospital with an ICU and an auto-respirator. Thereafter, the patient was brought to AIIMS on 3rd January 1994 and the doctors after examination stated that the patient was critical and would only survive in a vegetative state as irreparable damage had been caused to his brain and there were no chances of a possible revival of the damaged parts. Accordingly, he was discharged from AIIMS on 24th January 1994 as no significant improvement could be made to the patient’s condition. The M/S Meadows Hospital offered to re-admit the patient to do whatever was possible to stabilize the condition of the patient and he was thus, admitted again. The complainant alleged that it was due to medical negligence that the patient suffered irreparable damage and could only survive in a vegetative state. Thus, a compensation of Rs. 28 Lakhs was claimed. The Commission came to the conclusion that the child had suffered from cardiac arrest due to the intravenous injection of lariago of high dose and there was medical negligence on part of the hospital authorities. Accordingly, the Commission awarded the compensation of Rs. 12.5 Lakhs to the minor patient. It also awarded Rs. 5 Lakhs as compensation to the parents of the minor child for the mental agony endured due to their only son surviving in a vegetative state requiring lifelong attention and care. The Commission also made the insurance company liable to indemnify the amount of Rs.12,37,500 in terms of the policy on account of the liability of the hospital as the case was fully covered under the indemnity clause. Thus, the following appeals to the Supreme Court arose due to the order passed by the National Consumer Disputes Redressal Commission, New Delhi on 16th June 1997. The appellants in the two appeals are the Hospital and the insurance company. Issues: Arguments: Arguments put forth by the petitioner: Judgment: Pertaining to the contention of the insurer, the court stated that it was not open to entertaining the consideration as the notice issued by this court deals only with the legality of the award of compensation granted to the parents of the minor child. The court in the case acknowledged the difficulty posed while raising action of medical negligence and stated that there are practical difficulties in linking the injury to the medical treatment accompanied by the difficulty in establishing the standard of care in medical negligence of which a complaint can be made. The court further stated that “In a claim for compensation arising out of medical negligence, a plea of bonafide mistake under certain circumstances may be excusable but a mistake which would tantamount to negligence cannot be pardoned”.  This means that the court can accept the former case owing to human fallibility in order to exempt the defendant from liability. However, in the latter case, the conduct of the defendant if gone beyond the bounds of what is expected of the reasonable skill of a competent doctor will not be pardoned. Further, it was held that gross medical mistake will always result in a finding of negligence and that usage of the wrong drug or wrong gas during the course of anesthetic would be sufficient to impose liability and in certain cases, the principle of ‘Res Ipsa loquitur’ (a principle that the mere occurrence of some types of accidents is sufficient to imply negligence) can also be applied. A delegation of responsibilities to another could also amount to negligence in certain cases.  The court in order to answer the question of whether the parents of the minor child fall within the definition of ‘consumer under Section 2 (1)(d) of the Act, analyzed clause (ii) of the section and stated that the clause being broad enough, a ‘consumer’ “would include not only the person who hires the services but also the beneficiary of such services which beneficiary is other than the person who hires the services.” Thus, the parents of the minor child and the child would be ‘consumers’ within the meaning of Section 2(1)(d) of the Act and can claim compensation in the present case. The court while answering the question of whether the Commission can grant compensation to the parents of the minor child rejected the contention of the petitioner and stated that the parents of the child having hired the services of the hospital and the child is the beneficiary of such services fall within the meaning of Section 2(1)(d) of the Act. Thus, the Commission would be fully justified in awarding compensation under Section 14 clause (d), to both the parents and the child for the injury sustained by them. It further stated that such compensation was awarded to the parents of the minor child for their acute mental agony and the life-long care and attention they would have to bestow on the child. Thus, the court saw no infirmity in the order of the Commission and upheld its decision to award compensation to the parents, in addition to the compensation in favor of the minor child.  The court rejected the contention of the appellant and stated that the mental agony endured by the parent by seeing their only child in a vegetative state on account of medical negligence cannot be palliated by the ‘humanitarian approach’ of the Hospital and such approach can’t be considered to be a factor in denying the compensation for mental agony suffered by the parents. The contentions raised by the counsel appearing for the appellants having failed, the appeal failed and was hence, dismissed. Thus, both the appeals were dismissed with costs of Rs. 5000. Conclusion: Thus, the court through this case defined the scope of Section 2(1)(d) of the Act and further ascertained that the Commission would be entitled to award compensation under Section 14 clause (d) of the Act, to a consumer, for any loss or injury suffered by them, due to the negligence of the opposite party.   Edited by: Purnima Ojha