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Visakha Medical Centre Kakarlapudi Sanyasi Subhadra, W/o Late Sanyasi Raju, Hindu, aged about 55 years, Housewife, Alamanda Village, Vizianagaram District
… Complainant
1. Dr. Dayakar Reddy, The Managing Director, Visakha Medical Centre, Near Collector’s Office, Visakhapatnam.
2. The Nationa Insurance Company Limited, Policy No.550700/46/05/8700000169, Regd. Office – 3, Kolkata, Insurer Code : Unit 550700, C/o Rao and Sons Complex, Beside ICICI Bank, Dwarakanagar, Visakahapatnam – 530 016, Andhra Pradesh.
3. The Technician of MRI Scan, Visakha Medical Centre, Near Collector’s Office, Visakhapatnam.
4. Dr. Mehar Kumar, Anaethetist, Visakha Medical Centre, Near Collector’s Office, Visakhapatnam.
5. The New India Assurance Company Limited, Policy No.620102/46/06/35/0000000716, issuing office: 620102(office code), 30-15-35, Ist Floor, Dabagardens, Visakhapatnam.
6. Dr. T.V. Ramana Murthy, Orthopedic Surgeon, Near Collector’s Office, Visakhapatnam – 2. .
... Opposite Parties
This case coming on for final hearing on 19-06-2009 in the presence of Sri. K.Madhu Sudhana Rao, Advocate for the complainant and of Sri B.G. Chandrasekhar, Advocate for the opposite parties 1, 3 & 4, Smt. T.V.Rajyalakshmi, Advocate for the 2nd opposite party, Sri.D.Siva Prasad, Advocate for the 5th opposite party and Sri.M.R.K.Gandhi, Advocate for the 6th Opposite party and having stood over till this date, the Forum delivered the following:
: O R D E R :
1. The complainant averments in brief are :- the complainant’s husband K. Sanyasi Raju had leg pain and on 28-08-2006, he approached the Orthopedic Surgeon, Dr. T.V. Ramana Murthy (OP-6), advised her husband to undergo MRI scan in Visakha Medical Centre of Dr. Dayakar Reddy (OP-1). The total fee for MRI Scan was paid. The technician of the Visakha Medical Centre (OP-3) and Dr. Mehar Kumar (OP-4) engaged by (OP-1) conducted the MRI Scan, under Anesthesia, administered by Dr. Mehar Kumar. It is complained that the Anesthesia was administered without conducting any pathological tests or observing preliminary precautions and 4th opposite party administered heavy dosage of Anesthesia for three times due to which Mr. Sanyasi Raju became unconscious. Inspite of it the opposite parties 1, 3 and 4 did not take steps to give proper treatment to save the life of Mr.Sanyasi Raju. Infact the 1st opposite party medial center did not have proper equipment for temporary ventilation. It is due to the gross negligence of the opposite parties 1, 3 & 4, Mr. Sanyasi Raju died and this amounted to deficiency in service. 1st opposite party is vicariously liable for the acts done by opposite parties 3 and 4. Late Sanyasi Raju was earning more than Rs.20,000/- per month as an agriculturist and also doing joint family business like mango export. Due to his sudden death the complainant and her family put grief and loss of love and affection. The mental loss sustained by the family estimated at Rs.20,00,000/-. The 2nd opposite party is Insurance Company providing insurance cover to Visakha Medical Centre, represented by Dr. Dayakar Reddy, being Managing Director. The 5th opposite party is Insurance Company of 4th opposite party, Anesthetist. The 6th opposite party is Orthopedic Doctor of Complainant’s husband. Hence this complaint.
2. The 1st opposite party filed counter denying the complaint allegations, but admitted that the deceased Sanyasi Raju, approached the opposite party medical center for taking MRI Scan as per referral by Dr. Ramana Murthy. It is pleaded that it was observed the patient has got history of uncontrolled diabetes. But the same was intimated to 6th opposite party as well as the patient and his accompanying family members. It is on instructions of 6th opposite party the Anesthetist, 4th opposite party conducted MRI scan with minor dosage of sedation. After completion of the scan, it was observed that the patient developed weekness and slowly developing respiratory problem. Immediately 6th opposite party was intimated about this condition, 4th opposite party, anesthetist provided ventilator with Boyels Apparatus through endotricare tube with utmost medical care and took all precautions and the patient even regained normally conscious then the patient was shifted to Care Hospital with ventilators of Boyels Apparatus with utmost care and assistance of 4th opposite party and 3rd opposite party as per the advise of the 6th opposite party. There is absolutely no negligence on the part of this 3rd opposite party and all of them rendered their respective best and sincere service as a reasonable medical men and there is no medical negligence or deficiency of service. This opposite party is indemnified by 2nd opposite party for cases covered under professional indemnity policy under policy No.550700-46-05-8700000169 effective from 08-10-2005 to 07-10-2006 for Rs.20,00,000/-. The complaint is frivolous and as such liable to be dismissed.
3. 4th opposite party, Anesthetist filed a separate counter reiterating the pleas taken by the 1st opposite party. He denied any negligence on his part. He also pleaded that he is indemnified by 5th opposite party for the cases covered under professional indemnity policy under policy No.620102-46-06-35-00000007 with effect from 06-04-2006 to 05-04-2007.
4. 6th opposite party, Orthopedic Surgeon, who referred the patient to 1st opposite party for MRI Scan, filed counter that he prescribed the test to facilitate proper diagnosis of his ailment. It is further pleaded that Dr. Mehar Kumar, 4th opposite party administered anesthesia without any knowledge or intimation to this opposite party. Further this opposite party could gather information that the said Doctor had administered heavy dosage of Anesthesia, as a result of which the patient developed respiratory problems and was unable to breath. Immediately on receipt of the phone call from the medical center that the patient was unable to breath, this opposite party suggested that immediately the patient should be shifted to Care Hospital. This opposite party also reached the Care Hospital but by then the patient had already died and as such the Doctors of Care Hospital did not extend any treatment. This opposite party could gather information that no technician or doctor accompanied patient from 1st opposite party, though he is critically ill. Thereafter this opposite party personally went to Visakha Medical Centre and met the Anesthetist and he was informed that the patient did not recover from the Anesthesia and he could not be monitored properly. 4th opposite party also could not able to explain as to whey he could not accompany a seriously ill person and left him to Ambulance driver. There is no breach of duty on the part of this opposite party to impart ingredient for determination of negligence. The test recommended is an outlook for proper diagnosis. Hence the compliant is liable to be dismissed by awarding exemplary costs.
5. 2nd opposite party the insurer of 1st opposite party pleaded that the policy was obtained by him in his personal capacity and therefore it is applicable to those acts, commissions or omissions, errors or negligence etc in the professional service rendered by him and it does not cover for acts of anyone else in Visakha Medical Centre. The statement of 4th opposite party would disclose that 4 dosages have been administered by his own decision without even discussing with any Anesthetist more particularly with 1st opposite party as such cause of alleged death due to high dosage given by 4th opposite party, who is solely responsible for the consequences of the same. 1st opposite party did not inform or submit any claim for indemnification for the death of the deceased. 4th opposite party being a specialist called for administering Anesthesia, could have taken necessary precaution by conducting tests, considering the age of the deceased before administering Anesthesia. It is 4th opposite party along is liable and consequently, 5th opposite party is being insurer also is liable. There is no deficiency of service on the part of this opposite party and hence complaint against this opposite party is to be dismissed.
6. 5th opposite party the insurer of 4th opposite party took up a plea that there is no contract of insurance between the 5th opposite party with the complainant and hence the same is liable to be dismissed. The policy issued by this opposite party is subject to terms and conditions laid down therein. 4th opposite party did not inform in order to submit any claim form about the death of the deceased due to alleged negligent act or deficiency of service. The complainant also did not issue any legal notice unless the complainant establishes deficiency of service on the part of the 4th opposite party, the 5th opposite party is not at all liable. Moreover as per Exclusion Clause 7(2) (ii) and 10 of the terms and conditions of the policy the claim arisen out of deliberate, willful or non compliance of the statutory provision by the policy holder this opposite party is not liable. Moreover as per the letters given by the 4th opposite party dated 14-09-2006 and 20-10-2006, clearly attract the above clause and therefore this opposite party is not liable and the complaint has to be dismissed.
7. 3rd opposite party did not file a separate counter and adopted the counter of the 1st opposite party.
8. At the time of enquiry evidence affidavits of the complainant and opposite parties except 3rd opposite party are filed and Ex.A.1 to Ex.A.10 are marked. Ex.B.1 and Ex.B.2 the Insurance Policy by 2nd opposite party and 5th opposite party respective are marked.
9. The counsels for the complainant, as well as the opposite parties are heard who reiterated their contentions. 5th opposite party even cited certain authorities in support of his contention, which would be considered at the appropriate stage.
10. In view of the respective contentions of the parties the point that would arise for determination is:
Whether there is any deficiency of service on the part of the opposite parties in rendering their service and themselves liable for the claim made and if so to what extent.?
11. This complaint is by the wife of the deceased Sanyasi Raju who for his pain in leg was advised MRI Scan by Orthopedic Surgeion, Dr. Ramana Murthy, 6th opposite party, who underwent the same on 28-08-2006 in Visakha Medical Center, Visakhapatnam belonging to 1st opposite party. The same was conducted there by 3rd opposite party the technician therein. The patient was administered Anesthesia, by 4th opposite party for the alleged Claustrophobia he had. In order to facilitate scanning, but unfortunately Sanyasi Raju did not recover from that effect and he was said to have developed respiratory problem and even shifted to Care Hospital. On the advise of the Dr. Ramana Murthy, 6th opposite party there is a complaint that 4th opposite party gave high dosage of Anesthesia, which resulted in ultimate death of Sanyasi Raju.
There is further complaint that the 4th opposite party did not take proper care and conducted tests without confining the fitness of the patient and failed to obtain consent before administering anesthesia and he did not take proper steps to save the life of the deceased when complications aroused on administering Anesthesia. This complaint was made by the wife of the deceased against the diagnostic center, the technician, the Anesthetist basically and also impleaded the Insurance Companies, the companies which gave insurance cover to both 1st & 4th opposite parties. The Orthopedic Surgeon, who prescribed the test is also impleaded. The claim is for Rs.20,00,000/- as compensation.
12. It being a case of medical negligence against the Doctors of Diagnostic Center, initial burden is cast upon the complainant to prove that there was negligence on the part of them, who conducted MRI Scan by administering Anesthesia. In Savita Garg Vs. Director, National Heart Institute 4 (2004) CPJ page 40 SC, the Apex Court categorically observed that “when once a claim petition is filed and the claimant has successfully discharged the initial burden that the hospital was negligent, as a result of such negligence the patient died, then the burden lies on the hospital and the concerned Doctor, who treated the patient, that there was no negligence in treating the patient.” In Martin F D’Souza Vs. MD Ishfaq 2009 CPJ 32, (SC) relied upon by the counsel for the complainant himself, the apex court summing up its earlier decisions on this subject, which include its land mark judgements in Spring Medows Hospital & another Vs. Harjol Ahluwalia and others 1(1998) CPJ page 1: Indian Medical Association Vs. V.P. Shantha. III (1995) CPJ 1 (SC) and Bolam Rule laid down in Bolam Vs. Friern Hospital Management Committee (1957) 1 WLR 582, observed that the basic principle relating to law of medical negligence is the Bolam Rule, which has been quoted. “The test is standard of the ordinarily skilled may exercising and professing to have that special skill.
The man need not possess highest expert skill. It is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art.” Keeping in view of the principle laid down in the above decisions of the Apex Court itself it is to be seen how far the complainant is able to establish negligence on the part of the opposite parties and in conducting the tests under Anesthesia and taking necessary steps to save the life of the deceased after complications aroused.
13. Since undisputedly the complications aroused consequent to administering Anesthesia by 4th opposite party, which ultimately resulted in death of the deceased himself, the complainant can be said to have discharged initial burden of proof of negligence against the 4th opposite party. It is for the 4th opposite party to explain under what circumstances the Anesthesia was administered and what led to this complication. It is also his duty to explain that he followed the standard procedure and also obtained necessary consent from the patient. The party was categorical that by the time he reached Care Hospital within 10 minutes on receipt of intimation from 4th opposite party he could not find the 4th opposite party, the technician nor the ambulance, in which the patient was brought to the Care Hospital. He asserted that he gathered information that no Doctor or Medical Practitioner accompanied the seriously ill patient. Ex.A.8 further reads that he went personally to Visakha Medical Center and met 4th opposite party, who informed him that the patient did not recover from Anesthesia and could be monitored properly and he could not even properly explain as to why he did not accompany a seriously ill patient and left him to an ambulance driver.
This is the stand taken by 6th opposite party in his reply notice, in his counter as well as the evidence affidavit filed by him. Inspite of it there is no contradiction of 4th opposite party of this statements made by 6th opposite party. The failure to file the record as to the condition of the patient prior to the administration and thereafter consequential development and the unchallenged assertion by a co-doctor namely 6th opposite party that heavy doses of Anesthesia was given and the 4th opposite party did not even care to come to the hospital accompanying the patient to Care Hospital would clearly establish that he has not taken proper care in administering the Anesthesia and proper steps to manage the case when complications aroused and did not even have the humanitarian approach towards the patient in reviewing him to the Care Hospital would clearly establish gross negligence on the part of the 4th opposite party. Without having such infrastructure allowing the test to be conducted under General Anesthesia, itself in our view amounts to negligence on the part of the 1st opposite party.
14. Similarly the 1st opposite party did not even take care in sending the seriously ill patient to another hospital by its failure to make Anesthetist or medical men to accompany the patient who was seriously ill. This also would amount to gross negligence on the part of the 1st opposite party. Moreover as undisputedly the service of the 4th opposite party was engaged by 1st opposite party, he would be liable vicariously for the misdeed of negligence on the part of the 4th opposite party.
15. Ex.A.3 is the MRI scan report dated 29-08-2006. It is quite intriguing factor that when the scan was conducted on 28-08-2006, undisputedly the report reads that as if it was conducted on 29-08-2006 and in these circumstances the authenticity of this Ex.A.3 itself is doubtful.
16. Though 6th opposite party, orthopedic surgeon is impleaded as rightly contended by his counsel mere prescribing the test to be undergone in a diagnostic center for proper diagnosis of the ailment cannot be found fault. If something went wrong there at the diagnostic center over which he does not have any control nor does not belong to him and evidently he was not informed of administering anesthesia and only informed of the seriousness thereafter, in our view under no stretch of imagination 6th opposite party held to be negligent.
17. With regard to the liability of 2nd opposite party the insurer of 1st opposite party, it is the contention of its counsel that the policy was issued in his individual capacity only and it does not cover the acts of his employees as no separate premium was paid. It is true that the policy Ex.B.1 would show that it is issued in the name of Dr.Dayakar Reddy. It is consequent to note that his profession / business is show Allopathy medicine and specialist as shown as pathologist and anesthesia. Undisputedly he is the Managing Director of the Diagnostic Center where the test was conducted, simply because he did not personally conducted the test and got it conducted by his technician with the assistance of Anesthetist, it cannot be said that this case does not come under the policy. Moreover the non-payment of separate premium relates to unqualified staff. But 4th opposite party cannot be considered as unqualified staff and he is a qualified anesthetist. For carrying out his profession / business and rendering the diagnostic center, he engaged the services of 4th opposite party. Though a plea was taken that no notice was given by the complainant to them and so not liable, in our view the complainant cannot have knowledge as to whether the Doctor was indemnified or not. It is for the 1st opposite party to intimate the claim to his insurer soon after receipt of the legal notice from the complainant. Hence 2nd opposite party cannot claim exoneration from liability. Hence we do not find any force in the contention of the counsel that it is not liable to indemnify the 1st opposite party.
18. With regard to the liability of 5th opposite party, the insurer of 4th opposite party, the counsel relied upon a decision of Apex Court in Oriental Insurance Company Vs. Samai Nellore Primary Agricultural Corporation Bank. Where it was held that the Insurance Policy is to be construed having reference to the stipulations contained in it and no artificial or far fetched meaning can be given to the words appearing in it. The same was legal position relied in later decision in United Insurance Vs. Harchand Rai Chandanlal 2004 NCJ 828(SC). The learned counsel relied upon clause 7(2) (ii) & 10 & 8(1) in denying its liability. Sub clause 2(2) deliberate willful or non compliance of any statutory provision and in our view this clause wont apply in our case. Clause 2(10) relates to liability due to deliberate conscious or intentional disregard of the insured technical or administrative management of their need to take all reasonable steps to prevent claims. Though to some extent the conduct of 4th opposite party is covered in this clause in our view as far as the complainant’s claim is concerned it has to meet the liability for the negligent act of 4th opposite party and can recover the same from 4th opposite party if so advised. With regard to clause 8(1) it only provides for intimation to the insured as to the claim immediately after the incident. As already observed the complainant is not the insured herein and intimation if any is to be given by 4th opposite party and for his failure to do so the Company cannot disown its liability.
19. There cannot any doubt that the liability of both 2nd opposite party and 5th opposite party would be limited to the extent they provided insurance coverage. Thus we hold that Opposite parties 1 to 5 would be jointly and severally liable to pay the compensation due to complainant because of the negligent act by of opposite parties 1 and 4.
20. With regard to the quantum of compensation the claim is for Rs.20,00,000/-. It is to be noted that there is absolutely no material that could be placed by the complainant as to the income of the deceased by the time of his death though it is claimed to be Rs.20,00,000/- per month. He appears to be aged above 60 years as there is no positive evidence as to the age. The complainant age is shown to be 55 years. Taking into consideration of these circumstances, in our view awarding compensation of Rs.5,00,000/- would be just and proper. Accordingly we hold that the opposite parties 1st to 5 liable to pay compensation of Rs.5,00,000/- to the complainant within one month with interest @ 9% p.a. from the date of petition i.e., 29-03-2007 till realization. The opposite parties 1 to 5 are further directed to pay Rs.10,000/- towards costs.
21. In the result, complaint is allowed, directing the opposite parties 1st to 5 to pay compensation of Rs.5,00,000/- (Rupees five lakhs only) to the complainant within one month with interest @ 9% p.a. from the date of petition i.e., 29-03-2007 till realization. The opposite parties 1 to 5 are further directed to pay Rs.10,000/- (Rupees ten thousand only) towards costs. Advocate fee Rs.5,000/-. (Rupees five thousand only). Claim against the 6th opposite party is dismissed but with out costs.
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