the Supreme Court of India has given a landmark judgment this month which will go a long way towards curbing the widespread apathy in the medical care in India today. The patients in India are taken for a ride by the doctors who have made their noble profession into an ignoble profession.
“The principle of awarding compensation can be safely relied on restitutio in integrum. This principle has been recognized and relied on in Malay Kumar Ganguly vs. Sukumar Mukherjee, (2009) 9 SCC 221 and in Balram Prasad’s case (supra)”
In a case of gross medical negligence, the bench of justices J S Khehar and S A Bobde in V. Krishnakumar vs State Of Tamil Nadu &Ors, has ordered the Tamil Nadu government and a state-owned hospital at Egmore in Chennai to pay ` 1.80 crore to the parents of a child who had lost her eyesight within a year of birth 18 years ago due to the negligence of the hospital doctors.
On 30.8.1996, the appellant, V. Krishankumar’s wife Laxmi, was admitted in a government hospital at Egmore in Chennai where she delivered a premature female baby in the 29th week of her pregnancy. The baby weighed only 1250 grams at birth. The infant was placed in an incubator in intensive care unit for about 25 days. The baby was administered 90- 100% oxygen at the time of birth and underwent blood exchange transfusion a week after birth. The baby had apneic spells during the first 10 days of her life. The mother and the baby were discharged on 23.9.1996. The follow up treatments were administered by the respondents in this case in the hospital and at the home of the appellant as well by one of the hospital doctors (respondents).
However, none of the respondents screened the baby for Retinopathy of Prematurity (ROP), which a child born prematurely is prone to getting if she has been administered supplemental oxygen and given blood transfusion after her birth. This disease renders a child blind if remained undetected. And, if detected early enough, the disease can be prevented and the child’s eyes can be saved. Interestingly, the ROP was discovered when the appellant went to Mumbai for a personal matter and took his daughter to a paediatrician for giving DPT shots when she was four and a half months old. The doctor suspected ROP on an examination with naked eye even without knowing the baby’s history. But, by then the damage had been done as the child was on the verge of losing her eyesight as the disease had set in at its final stage. After visiting many leading hospital in India, the parents of the child were advised by the experts in ophthalmology to visit the US for surgery. In October 1997, the child underwent four eye surgeries within a span of two months, but the light in her eyes could not be restored.
National Consumer Disputes Redressal Commission, where the matter first went, awarded a compensation of ` five lakh to the appellant. The consumer forum found that at no stage did the respondents warn the appellant about the possibility of occurrence of ROP even though it was their duty to do so. Nor did they explain anywhere in their affidavit that they warned of the possibility of the occurrence of ROP knowing fully well that the chances of such occurrence existed, nor did they refer to a paediatric ophthalmologist for screening. Even a medical team from All India Institute of Medical Sciences confirmed negligence on part of the hospital and the doctors.
The SC agreed with the findings of the NCDRC that the respondents were negligent in their duty and were deficient in their services in not screening the child between 2 to 4 weeks after birth when it was mandatory to do so and especially since the child was under their care. The SC dismissed main defence of the respondents as the desperate attempt to cover up the gross negligence in not examining the child for the onset of ROP, which is a standard precaution for a well known condition in such a case. “The baby in question was admitted for a period of 25 days and there was no reason why the mandatory screening, which is an accepted practice, was not done,” said the bench
Deciding the compensation, the Court, while saying that the darkness in the life of the child who has rendered blind can never be really compensated for in money terms, maintained that there should be adequate compensation for the expenses already incurred, the pain and suffering, lost wages and the future care of the blinded child who is now in his teens and dependent on her parents for her every need.
While fixing the quantum of compensation in this case, the Court, rejected the multiplier method and relied on the principle of restitutio in integrum, according to which a person entitled to damages should, as nearly as possible, getthat sum of money which would put him in the same position as he would have been if he had not sustained the wrong. “This principle has been recognized and relied on in Malay Kumar Ganguly vs. Sukumar Mukherjee, (2009) 9 SCC 221 and in Balram Prasad’s case,” the bench said.
The Apex Court also accounted for inflation in the computation of awards in medical negligence cases and said that it was sufficient to note that the principle of apportioning for inflationary fluctuations in the final lump sum award for damages had been upheld and applied in numerous cases pertaining to medical negligence.
The Court also held the hospital as vicariously liable for the acts of negligence of its doctors. The Court said, “It is settled law that the hospital is vicariously liable for the acts of its doctors vide Savita Garg vs. National Heart Institute, (2004) 8 SCC 56, also followed in Balram Prasad’s case (supra). Similarly in Achutrao Haribhau Khodwa v. State of Maharashtra, (1996) 2 SCC 634 this court unequivocally held that the state would be vicariously liable for the damages which may become payable on account of negligence of its doctors or other employees. By the same measure, it is not possible to absolve the State of Tamil Nadu, which establishes and administers such hospitals through its Department of Health, from its liability.”
So, the Apex Court, agreeing with the findings of the NCDRC, as well as accounting for inflation in the computation of awards in medical negligence dismissed the civil petition filed by the Tamil Nadu government against the NCDRC judgment, enhanced the compensation awarded by the NCDRC and ordered the state and other respondents to pay the appellant ` 1.38 crore as compensation and ` 42 lakh as reimbursement of medical expenses, taking the total award to ` 1.80 crore.
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