ORDER
Rajyalakshmi Rao, Member
1. These two First Appeal Nos. 312 and 337 of 2002 have arisen against the order dated 21.6.2002 in Complaint No. 3 of 1999 of the State Commission, Punjab, Chandigarh whereby the complaint was allowed in a complaint of medical negligence by the complainant–Hamam Singh and Another v. Tagore Hospital and Another. The State Commission directed the opposite party, Tagore Hospital to pay Rs. one lakh as compensation to the complainant and refund Rs. 4,600 towards medical expenses incurred by the complainants along with Rs. 5,000 as costs. Aggrieved by the said order opposite parties have filed the First Appeal No. 312 of 2002 in this Commission and prayed for dismissal of the complaint. The complainants have filed First Appeal No. 337 of 2002 for enhancement of the compensation.
2. Brief facts of the case are:
Son of the complainants, Hamam Singh and Kamlesh Rani, was Inderjit, aged 25 years, was admitted in Tagore Hospital on 13.9.1998 as he was suffering from fever for 20 days. After some treatment for few days the patient was discharged on 17.9.1998 around 9.00 p.m. and the complainants were advised to take him to Dayanand Medical College at Ludhiana. The patient was taken to Pruti Hospital and then to DMCH, Ludhiana where the patient died on 17.9.1998. But the patient died near Gauraya on the way to Ludhiana. The State Commission held the opposite parties deficient in service on the following reasons:
(a) That the O.Ps had started antituberculosis treatment to the patient and did not give any other treatment;
(b) That the relevant tests had not been done to establish the cause of “Pyrexia of unknown origin”;
(c) That from 13th to 17th September, 1998 except x-ray they had not done any relevant tests on the patient;
(d) That although there was mechanical ventilator available in their premises but they did not make it available.
Complainants’ Submission:
3. It is contended that due to haphazard management for four days by the opposite parties their son’s condition became critical when he was discharged on 17.9.1998 around 9.00 p.m. At the critical condition of the patient he was referred mischievously to DMCH, Ludhiana though the hospital is itself a heart specialty hospital. At 7.25 p.m. although the condition of the patient was deteriorating and he was advised to be put on artificial ventilator by their own Doctors but it was not done. On the contrary he was discharged in a critical condition and referred to DMCH. It is contended that opposite parties were negligent on the following grounds:
(a) Opposite parties have not done cultures of blood, urine, sputum and CSF to find out the cause of pyrexia. Further they have not done x-ray of the chest which was also an important investigation.
(b) Montous test which was advised on 15.9.1998, was done after starting the antituberculosis treatment. This should have been done at the very first instance.
(c) On 16.9.1998 at 6.00 p.m. itself the respiration rate per minute was 24 which is higher than normal but according to 10.30 p.m. entry, respiration was not checked.
(d) On 17.9.1998 the patient was already tachypnoic and hypoxic but still no chest x-ray was ordered.
(e) On 15.9.1998 the patient was advised anti-tuberculosis treatment but still routine antibiotics were being continued without any justification for the same and the patient was subjected to heavy dosage as both the medicines were given simultaneously.
(f) At 7.00 p.m. on 17.9.1998 the patient was grossly hypoxic and he should have been put on ventilator immediately as the saturation point had arrived at 4.00 p.m. and yet no ventilator was provided which was readily available with the opposite parties. At 7.25 p.m. the patient was advised Arterial Blood Gases (ABG) analysis since he had developed Acute Respiratory Distress Syndrome (ARDS). It is submitted that Arterial Blood Gases should have been done much earlier and that this delay proved to be much fatal.
(g) Lastly, in a critical condition the patient was discharged by the opposite parties when the patient needed maximum medical care and they did not own up to give correct treatment by providing ventilator. It is as good as throwing the patient out and not owning up to do the necessary treatment.
4. A young person, aged 25 years, lost his life who was suffering from fever and the opposite parties have wrongly treated the patient and delayed proper investigation but continued over-dosage of medicines and antibiotics, and did not even provide mechanical ventilator which was in their premises attached to the hospital. It is averred that meagre compensation of Rs. one lakh awarded by the State Commission should be enhanced upto Rs. 20 lakh. It is submitted that the patient was employed and supporting his parents and hence the appeal for enhancement of compensation was filed by the complainant.
Opposite parties’ submission:
5. As against this, opposite parties have made following submissions:
(a) It is submitted that since there is no history of urinary trouble and the patient was not having any cough and was not bringing out any sputum and the central nervous system was not involved in this case so there is no question of taking CSF. It is submitted that the patient himself brought his blood culture report and hence no further culture test was carried out. All the relevant investigations have already been carried out and there is no deficiency on the part of the hospital authorities.
(b) As far as the x-rays are concerned they were done on 13.9.1998 on the night of admission of the patient and thereafter on 16.9.1998. These reports did not show any abnormality. When 2D Echocardiography and later on colour Doppler Echocardiography had shown pericardial effusion and when it was found that the patient was having difficulty in breathing and developed cyanosis he was put on high concentration ventimask.
(c) On 17.9.1998 when the condition of the patient started deteriorating at around 7.00 p.m. due to severe tachypnoea (which means increase in respiratory rate and cyanosis) the Hospital did not wait for a second and the patient was immediately administered the required medicines and a highly specialized investigation, i.e. Arterial Blood Gas (ABG) analysis was advised and the same was done from the hospital. Not only this, the oxygen saturation of the patient was being continuously monitored. Dr. Bhupinder Singh, a Senior Anaesthetic and Interventionist was called on mobile phone to discuss the further line of action and on his advice the patient was given increased concentration of the oxygen through specialized ventimask which is a recommended line of treatment for such patients. The patient responded and got stabilized with this treatment. The oxygen concentration did not worsen and oxygen saturation improved from 86% at 7.15 p.m. to 91% at 7.30 p.m. It cannot be called deficiency in service for giving the appropriate treatment.
(d) When the patient developed complication suggestive of Acute Respiratory Distress Syndrome (ARDS) at 7.00 p.m. the ABG analysis of the patient was done and then the patient was suggested that further treatment should be done by a Chest Specialist in ICU with mechanical ventilation and hence the patient was asked to shift to an Institute where necessary facilities and the specialists are available along with appropriate infrastructure. Since they did not have these facilities they referred the patient to DMCH for further treatment.
(e) When the attendants of the patient was advised to shift to DMCH instead they went to Pruti Hospital and BBC Heart Care Centre, Talandhar where the patient was kept for 45 minutes for examination by Dr. V.K. Sharma when the attending Doctors at Pruti Hospital could not treat the patient he was referred to DMCH. At that time the patient sufferedfromAcute Respiratory problem and the patient died on the way to Ludhiana. The patient
remained in Pruti Hospital unnecessarily whereas the attendants should have taken the patient to the DMCH. It is contended that there is no deficiency in service on the part of the hospital authorities.
(f) The mechanical ventilator was available for use in another hospital, i.e. Tagore Heart Centre. It is submitted that the mechanical ventilator was not free even at the Tagore Heart Centre at the relevant time and ventimask was provided to the patient which was a recommended line of treatment. Further it is also submitted that at Tagore Heart Centre patients who have undergone open heart surgery are required to use these ventilators and that the same could not have been provided to the patient as they were being used by patients who have undergone by-pass surgery.
(g) As for the continued antibiotics, it is stated that the Montous test was done later, and that antibiotic started earlier could not be stopped till the full course is completed.
(h) The ABG analysis was carried out when the Doctor felt it necessary at 7.00 p.m. on 17th and it is only then that the opposite parties recommended the need to refer to the patient to DMCH for chest treatment in ICU under the care of Chest Specialist as the patient suffered Acute Respiratory Syndrome. It is submitted that the patient was constantly monitored by the pulse oximeter and various specialists had interacted and given the treatment when the patient was in their charge. Thus, they prayed that the complaint should be dismissed, as there was no deficiency in service and medical negligence by the opposite parties.
(i) Lastly, it is contended that Pruthi Hospital, Jalandhar was not impleaded as necessary party and the entire blame has been put on the opposite parties alone.
Findings:
6. We have perused the order of State Commission and have gone through the affidavit filed by Dr. Rajesh Kumar, Consultant Physician, Tagore Hospital, affidavit of Dr. V.P. Sharma, D.M. Cardiology, Senior Cardiologist and Interventionist of Tagore Hospital, Jalandhar, affidavit of Dr. Sanjay Mahindra, MBBS, working in Tagore Hospital, Jalandhar, affidavit of Dr. R. Chawla, DM. Cardiology, Senior Cardiologist and Interventionist, Jalandhar, affidavit of Dr. Rajesh Kumar, Consultant Physician, affidavit of Dr. Subhash, MBBS, affidavit of Dr. Bhupinder Singh, M.D. Senior Anaesthetist, affidavit of I.G.P. Singh, relative of the complainant, affidavit of Sunita Gupta, Receptionist of Tagore Hospital, affidavit of Satish Kumar, relative of the complainant, affidavit of Bachiter Singh, Jalandhar, resident of Jalandhar, affidavit of Dr. Vijay Mahajan, Director, Tagore Hospital and cross-examination of Dr. Mahajan, Dr. Subhash, Dr. Bhupinder Singh and Dr. Rajesh Kumar along with the medical record produced by the Hospital.
7. To arrive at a decision whether there is deficiency in service on the part of the hospital, the following issues need to be examined:
(a) Whether the hospital has maintained correct medical record?
(b) Whether the necessary pathological tests were carried out?
(c) Whether there is negligence in ascertaining the cause of ‘Pyrexia’?
(d) Whether there is a clear negligence in not putting the critical patient on ‘mechanical ventilator’ and asking him to shift to another hospital?
8. Firstly, it is clear to us that no reliance can be placed on the hospital record and they appear to be fabricated later on. The patient was admitted in the Tagore Hospital on 13.9.1998 with fever for past 20 days. The readings noted at 1.00 a.m. on 14.9.1998 show fever of 103 degree F but the pulse and B.P. were shown as normal. All other parameters were shown as normal and the general condition is shown as good. Medical literature shows that normal temperature and pulse rate are 98.4°F and 72 beats per minute. With every 1 degree F increase in temperature the pulse goes up by about 10 beats. Thus if the patient had a temperature of 103 degree F, the pulse should be around 100 beats per minute. Further how could general condition and all the parameters be normal when the patient was having 103 degree F fever and was suffering from fever for past 20 days.
9. Nothings made at 5.30 show temperature as 103 degree F but again B.P. and pulse were shown as normal; but there is an overwriting and the pulse was changed to 90 or 96 and the temperature remains constant, there cannot be such variation in pulse after few hours. Even if it is assumed that the pulse was 96 that itself is 24 higher than normal. An x-ray of chest was taken on 13.9.1998 but the record is completely silent about who interpreted the x-ray as there is no signature of any Doctor.
10. On 14.9.1998 at 5.15 a.m. an echocardiogram was advised with a strict watch on temperature. The echo taken showed mild heart problem (pericardial effusion). Therefore, a repeat x-ray was ordered. Accordingly another x-ray was done on 14.9.1998. On 15.9.1998 a note was recorded on it to the effect that “lung fields clear”. No effort was made to co-relate it with the reports of Echo which showed ‘Pericardial effusion’. Once again there is complete silence as to who interpreted the x-ray as there is no signature of any doctor.
11. On 15.9.1998 the history sheet shows that the case was discussed with the experts, i.e. Dr. V.P. Sharma and Dr. R. Chawla but actually their entries and signatures were not taken contrary to the usual procedure.
12. On 16.9.1998 at 6.00 p.m. the patient’s respiration has been shown 24 per minute and also mentioned general condition fairly good. This observation cannot be correct.
13. On 17.9.1998 from 4.00 p.m. onwards the patient’s condition deteriorated. The record just mentioned “slight difficulty in breathing” and also the respiration 28 per minute which is much higher than normal. The patient was grossly hypoxic and was finding difficult)’ in breathing, his oxygen saturation was 82% but despite this critical condition no chest x-ray was ordered and no arterial blood gases analysis was done which is a must in such a critical condition. It is only at 7.25 p.m. the patient was advised arterial blood gases analysis since he had developed Acute Respiratory Distress Syndrome. Still he was not put on artificial ventilation which was rightly advised by the opposite parties themselves. Had they done this earlier, the eventual fatal ending could have been completely avoided. The patient was discharged forcibly although and sent way knowing fully well that he was in a critical condition and also having facilities available in their premises in Tagore Heart Institute which has mechanical ventilator and opposite, parties did not consider giving the necessary treatment which was a required emergency treatment.
14. As regards the failure in putting the critical patient on mechanical ventilator which was available on the premises, the evidence of Dr. Vijay Mahajan and after Dr. Bhupinder Singh, Consultant of the Tagore Heart Centre at the relevant time are important; Dr. Mahajan contradicts himself in his affidavit. An effort is made to argue that the Tagore Hospital and the Tagore Heart Centre are two different entities though under a common management and also located in the same premises.
15. It is argued that the patient in question is entitled only to the treatment in the Tagore Hospital and not in the Heart Centre. Obviously this is not correct because at one point of time Dr. Bhupinder Singh of the Heart Centre examined the patient and suggested that the patient requires mechanical ventilator in next three to four hours….
16. Dr. Mahajan also mentioned that all the mechanical ventilators were in use in the Heart Centre and nothing was available for treating the patient in question. This is a bald statement and no record has been provided to show that the mechanical ventilator from the Heart Centre cannot be spared.
17. Further argument that the mechanical ventilator could not be used on the patient because of the possibility of it being infected is also not sound as enough material is produced to show how the mechanical ventilator after use with any patient can be properly disinfected and sterilized before next usage. In any case there does not seem to be any logic in asking the patient who has reached a critical stage in his life to go to another hospital in different city which is at least few hours away. Dr. Bhupinder Singh in his cross-examination has clearly stated that it is necessary to put the patient on mechanical ventilator in the coming three to four hours. Obviously the Hospital authorities failed to implement these recommendations and only to give lame excuses as to why mechanical ventilator in their own hospital could not be spared. This amounts to sheer negligence as they allowed the patient to sink from critical condition to fatal condition by not giving the necessary and timely treatment as they clearly shirked their own responsibility.
18. In the light of the findings above, we hold that there is gross negligence and deficiency of service on the part of the appellants, Tagore Hospitals and Another in First Appeal No. 312 of 2002. Hence, the First Appeal No. 312 of 2002 fails and is dismissed.
19. As far as quantum of compensation is concerned the issue raised by the appellants in First Appeal No. 337 of 2002, we find that there is a case for enhancing the compensation. The deceased, son of the complainant, was 25 years of age at the time of his death caused due to negligence. He had a job with Inder Rubber Industries and was drawing a salary of Rs. 4,500 p.m.
20. In regard to the choice of the multiplicand the Halsbury’s Laws of England in Vol. 34, para 98 states the principle thus:
98. Assessment of damages under the Fatal Accident Act, 1976–The Courts have evolved a method for calculating the amount of pecuniary benefit that dependents could reasonably expect to have received from the deceased in the future. First the annual value to the dependents of those benefits (the multiplicand) is assessed. In the ordinary case of the death of a wage-earner that figure is arrived at by deducting from the wages the estimated amount of his own personal and living expenses.
21. Further as to the multiplier, Halsbury states:
However, the multiplier is a figure considerably less than the number of years taken as the duration of the expectancy. Since the dependents can invest their damages, the lump sum award in respect of future loss must be discounted to reflect their receipt of interest on invested funds, the intention being that the dependents will each year draw interest and some capital (the interest element decreasing and the capital drawings increasing with the passage of years), so that they are compensated each year for their annual loss, and the fund will be exhausted at the age which the Court assesses to be correct age, having regard to all contingencies.
22. The Hon’ble Supreme Court in the case of General Manager, Kerala State Road Transport Corporation, Trivandrum v. Susamma Thomas (Mrs) and Ors. laid down clear principles on which compensation needs to be decided: “The proper method of computation is the multiplier method. Any departure, except in exceptional and extraordinary cases, would introduce inconsistency, of principle, lack of uniformity and an element of unpredictability for the assessment of compensation”.
23. Again it held that multiplier method involves ascertainment of the laws of dependency of multiplicand having with regard to the circumstances of the case and capitalizing multiplicand by appropriate multiplier. The choice of the multiplier is determined by the age of the deceased or that of the dependents/claimants and by the calculation as to what capital sum, if invested at a rate of interest appropriate to a stable economy, would yield the multiplicand by way of annual interest. In ascertaining this, regard should also be had to the fact that ultimately the capital sum should also be consumed up over the period for which the dependency is expected to last.
24. Apex Court while observing that much of the calculation necessarily remains in the realm of hypothesis “in every case it is the overall picture that matters” the Court must try to assess as best as it can the loss suffered, specifically observed that “the chances that deceased might have got better employment or might have lost his employment or income altogether”, needs to be taken into account.
25. Based on these principles and the facts of the case before us we adopt multiplier of 15 years. The salary of the deceased was Rs. 4,500 at the time of death. Taking into consideration his future prospects of increase in income in a course of 5 to 7 years and following the ratio of the said Apex Court judgment, we double this income which comes to Rs. 9,000 p.m. out of which 1/3rd is to be deducted towards his personal expenses which comes to Rs. 3,000. The average dependency would be Rs. 6,000 p.m. and per year comes to Rs. 72,000. Since there is dependency of parents we adopt the multiplier of 15 (15 x Rs. 72,000 = Rs. 10,80,000). We direct the respondents to pay compensation of Rs. 10,80,000 instead of Rs. 1,00,000 as awarded by the State Commission along with Rs. 4,600 towards medical expenses and Rs. 5,000 as costs. In the result, F.A. No. 337 of 2002 is allowed and we direct the respondents to pay the above mentioned amount within four weeks from today.