Hospital accountable for failure of duties by doctors, staff: Consumer Forum Directs Rs 20 lakh compensation

Commission members Mr Anup K Thakur (Presiding Member) and Dr S. M. Kantikar, in their judgment dated 04.03.2021 mentioned, "The hospitals are institutions, people expect better and efficient service if the hospital fails to discharge their duties through their doctors being employed on job basis or employed on contract basis, it is the hospital which has to justify."

The case goes back to 22.12.2005, the same day when the complainant wife went into labour and after consulting the treating doctor gynecologist, was admitted to the treating hospital for delivery. After the successful delivery a healthy female baby was born and the baby was kept in the labour room.

Also Read: Patient suffers amputation of both legs leading to permanent disability: Consumer forum directs Rs 10 lakh compensation

The complainants alleged before the Commission that at midnight, first, the treating doctor then a paediatrician rushed to the labour room and the duty doctor informed them that the baby was suffering from fever. When the doctors came out of the labour room with the baby wrapped in their arms, they allegedly informed that the baby was suffering from cold, got infected and needed ICU care.

However, after insistence, they showed the baby to the complainant-husband who found a bandage put on the lower portions of both the legs of the baby. It was after inquiry, the complainant came to know that while the doctors and staff were conducting another delivery, they put the newborn near a rod heater for warmth which resulted in the burn injuries of the child.

The mother and the child were kept under treatment at the hospital for two months and the baby's skin grafting of both legs was done using the mother's skin. They were discharged from the hospital on 20.02.2006.

However, the complainants alleged before the Commission that during the follow-up treatment, they came to know about thermal burn injuries to the baby which lost three toes in the left and two toes in the right side because of dry gangrene. The Complainants further submitted that the baby was under regular treatment for several years at Apollo Hospital, New Delhi and underwent several corrective operations & plastic surgery.

Blaming the doctors and the treating hospital for their careless treatment and deficiency in service, the complainants filed the Consumer Complaint under Section 21 of the Consumer Protection Act, 1986 and prayed compensation to the sum of Rs.1,02,33,000/- along with interest @ 24% p.a for the irreparable loss and injury suffered by them.

Both the treating doctor and the paediatrician denied all these allegations. The treating doctor submitted that she took care of the successful delivery of the complainant wife and after the baby was born left the hospital after preparing a bed head ticket and giving the instructions to the in-charge staff to keep the child under the care of the Pediatrician. As it was winter, the treating doctor further advised the staff nurse to keep the baby properly wrapped. Thus, there was neither negligence nor deficiency in service on her part. She further submitted that kept on visiting mother and baby during a prolonged hospital stay, did not charge professional fees for delivery or visits.

On the other hand, the paediatrician questioned the maintainability of the complaint itself as she was not in the picture and only reached there after the alleged incident. She further submitted that at the time of the alleged incident the child was being looked after by one of the attendants of the complainants i.e. the grandmother of the child.

The hospital denying all the allegations, submitted before the Commission that the treatment is given to the mother and the newborn was without any delay and the attending doctors were alert and diligent throughout. It was also submitted on the behalf of the hospital that at the request of the child's grandmother, a warm air blower was kept in the labour room to keep the room warm. According to the staff on duty, the blower was not facing the child and proper care was given to keep the child warm at a distance, thus no negligence could be attributed.

The counsel for the doctors and hospital also submitted before the Commission that when the staff nurse came back from another delivery around midnight she noticed that the grandmother was not in the room and the blower were turned facing towards the baby. The staff nurse further noticed the baby developed blisters on the lower part of her body (below the waist) and she immediately informed the doctors.

Supporting their contentions, the counsel for the hospital submitted an affidavit of the managing director of the hospital explaining the plan of the labor room, affidavit of the staff nurse, and one e CD containing an audio-video recording of the child in question while she was attending her school in 2016.

The counsel for the hospital also relied upon several judgments including Bolam vs. Friern Hospital Management Committee, Director General, Jacob Mathew vs. State of Punjab & Anr. Among others.

After listening to all the arguments and noting all the pieces of evidence, the Commission noted that the blanket was intact, not burnt, but the newborn baby suffered burn below waist and to both legs. Thus, the Commission opined that it was thermal burn due to dry heat from the hot air blower.

Taking note of the affidavit filed by the staff nurse, the Commission opined that the hospital staff as well as the patient's attendant-grandmother both were responsible for the unfortunate mishap.

Further, from the discharge summary, disability certificate, the Commission noted that the child suffered 60% physical impairment and physical disability of 28% (i.e. child lost her 2 & 3 toes on right nd rd foot and 1 , 2 & 3 toes on left foot; 10+5+4+5+4= 28%). "Thus, the child suffered the impairments and disabilities which have been assumed to be contributing factors to a decline in health and function and to the loss of independence," observed the Commission.

Although the Commission acknowledged the importance of granting compensation to the parents of the victim of medical negligence due to their acute mental agony and the lifelong care and attention necessary for the child, the Commission further failed to find any negligence on the part of the treating doctor and the pediatrician.

However, the Commission didn't give relief to the hospital for its liability and it mentioned in the judgment,

"It is known that living with a disabled child can have profound effects on the entire family–parents, siblings, and other family members. Far-reaching effects associated with raising a disabled child are the time and financial costs, physical and emotional demands, healthcare expense and logistical complexities (transport to and from school). Such child faces various psychological challenges including experience of feeling inferior, frustrated, sad and angry because of rejection by other children, neighbours and/or by other community members. For parents, having a disabled child may increase stress, take a toll on mental and physical health, make it difficult to find appropriate and affordable child care. It may be associated with guilt, blame, or reduced self-esteem."

Thus, the Commission opined that the hospital must not only compensate the child "for the physical pain caused by burn which will continue to cause, but also any emotional pain and disfigured burn victim has suffered and will suffer in the future. In addition the child being embarrassed, depressed, or experiencing any of the other emotional reactions likely caused by a disfigurement."

However, the Commission also noted that the child was in the custody of the grandmother, who failed in her duty of care. Opining that it was the grandmother who put the blower facing the baby, the Commission accused her of contributory negligence in the case.

"In the instant case, we do not find it was a bonafide mistake which deserves pardon. It was not error of judgment also, but it was the failure of duty of care from the hospital staff as well as the patient's attendant (grandmother)," observed the Commission.

Although the Commission decided on a lump sum compensation of Rs 40 lakh, mentioning the contributory negligence it held the hospital accountable for only 50% of it, i.e. Rs 20 lakh. The Commission directed the hospital to pay the amount within six weeks, failing which the amount would carry interest at the rate of 9% p.a. till its realization. It also directed the parents to keep the amount in fixed deposit in any nationalized bank till the child attains majority, till then they may draw periodic interest for the welfare of the child. Further, the hospital has been directed to pay Rs 1 lakh towards cost of litigation.