Judgment:
Bhanwar Singh, President:
1. All these three appeals have arisen out of one and the same judgment dated 26.5.2005 of the District Consumer Forum, Gorakhpur whereby a compensation of Rs. 2,00,000 was awarded with the direction to Dr. Virendra Srivastava and the National Insurance Company Limited to pay the aforesaid amount of compensation within one month.
2. All the three parties felt aggrieved of the said judgment.
The complainants Sri Surendra Lal Srivastava and others have preferred Appeal No. 1360/2005 highlighting their grievance and prayed for an award of higher compensation as demanded by them in their complaint. According to them the awarded amount is inadequate. As a matter of fact, as pleaded by them, it should be atleast Rs. 4,50,000 along with interest.
3. Dr. Virendra Srivastava has by filing his Appeal No. 1117/2005 prayed for setting aside of the impugned judgment on the ground that there was no negligence on his part and whatever the treatment of Sri Surendra Lal Srivastavas son late Sri Anup Kumar Srivastava, he rendered was all with bona fide care and according to the best of his capabilities.
4. The third appeal was filed by the National Insurance Company Limited, the insurer of Dr. Virendra Srivastavas profession on the ground that Dr. Virendra Srivastava was not guilty of any medical negligence as he did his best to save the life of Sri Anup Kumar Srivastava.
5. It may, in brief, be stated that late Sri Anup Kumar Srivastava riding his scooter met with an accident at 7.00 p.m. on 15.8.1998 when his scooter collided with another scooter. As a consequence, he suffered injuries on his right shoulder. The injured Sri Anup Kumar Srivastava was brought to the clinic of Dr. Virendra Srivastava who got his X-ray conducted. Dr. Virendra Srivastava was in a perplexed state of mind when he noticed that Sri Anup Kumar Srivastava was experiencing lack of oxygen and pressure on his heart. Immediately, he administered intravenous injection of Doxapram which proved to be fatal. In a little short while after the Doxapram injection being administered, Sri Anup Kumar Srivastava expired. The appellants (Appeal No. 1360/2005) Sri Surendra Lal Srivastava and Smt. Padamini Srivastava are the parents of the deceased while Sri Amit Srivastava and Sri Archit Srivastava are his brothers. These complainants, attributing medical negligence to Dr. Virendra Srivastava of injecting the deceased with Doxapram injection without realizing that this injection was not permissible on account of the patient having suffered a head injury, claimed a compensation of Rs. 4,50,000 with interest @ 18% per annum and litigation charges.
6. Dr. Virendra Srivastava denied the allegations of the complainants, justified the line of treatment he had prescribed including Doxapram injection and submitted that on examination of the patient with the help of X-ray report, he found that a shoulder bone had displaced and broken. He had adjusted and packed the injured shoulder with leucoplast and when the process of cutting his heir on the chest was in progress, the patient vomited and felt short breathing. Visualizing danger to his life he prescribed Doxapram injection but at that time he had no knowledge of the patient having suffered some head injury. Had he known the fact of there being an injury in his head he would have not prescribed the said injection, rather he would have arranged his examination by neurosurgeon. Dr. Virendra Srivastava added further that the patient had not complained of any kind of pain in his head and thus he concentrated over the broken bone of the shoulder and started treating the same. The local anesthesia was administered. When the patient felt lack of oxygen Dr. K.P. Mishra was summoned who had inserted an oxygen tube in his throat and thus every efforts to save the life of the deceased was made. However, when the patient did not show an indication of improvement Dr. Sunil Arya and Dr. K.M. Singh from Medical College and Dr. Rajni Kant from Star Nursing Home were summoned and they also helped in reviving the breathing of the patient and saving his life. It was unfortunate that Sri Anup Kumar Srivastava died despite all sincere efforts to save his life were made by several doctors.
7. The National Insurance Company conceded having provided an indemnity insurance cover to Dr. Virendra Srivastava but pleaded in tune of the doctor that there was no negligence on his part.
Having scrutinized the pleadings and the evidence of the parties, the District Consumer Forum, Gorakhpur recorded a finding of medical negligence on the part of Dr. Virendra Srivastava and as said above holding him and the Insurance Company jointly and severally liable awarded a compensation of Rs. 2,00,000.
The core issue which arises for our determination is as to whether the injection of Doxapram with Efcorlin had been administered wrongly due to medical negligence of Dr. Virendra Srivastava?
8. It is noteworthy that the deceased had met with an accident at about 7.00 p.m. and he was brought to the clinic of Dr. Virendra Srivastava at 8.15 p.m. He complained of pain in shoulder and chest. He was laid on the X-ray table and before X-ray of his injuries could be conducted he had vomited and fainted. Immediately Dr. Virendra Srivastava prescribed Doxapram 5 ml. injection with Efcorlin. A little while after he was injected, Sri Anup Kumar Srivastava died. He was brought to the hospital at 8.15 p.m. and admittedly he died at 8.30 p.m. on August 15, 1998. Dr. Virendra Srivastava had written his prescription, a perusal of which indicates that the deceased before his death complained of pain in his right shoulder. There was dislocation of the shoulder at the joint of right arm and upper right arm also suffered a fracture. The doctor has mentioned both these features and also observed in his notes that the scooter had skidded on account of patient being in inebriated state of mind. In continuation of the left hand side observations, recorded on the prescription Dr. Virendra Srivastava has mentioned that general condition of the patient was very poor and pulse rate was 30 per minute. Respiratory distress was also observed and then head injury was also noted. However, there is a question mark on the left hand side of the head injury and both parties before us have interpreted the endorsement of head injury with a question mark in their own manner. Dr. Virendra Srivastava who was himself present before us argued in detail that he was not in know of there being any head injury suffered by the patient and it was on account of that ignorance that he had put a question mark preceding the head injury. Dr. Virendra Srivastava and his Counsel both argued that had he known about there being head injuries suffered by the patient at the relevant juncture of Doxapram being administered, he would not have prescribed the said injection. On the other hand, learned Counsel for the complainants submitted that the doctor knew it well about the patients head injury but despite this he prescribed the said injection which proved fatal to his life.
9. Vishal Chaudhary, learned Counsel for the complainants has also argued that if Dr. Virendra Srivastava prescribed the said injection without searching and exploring for there being or being not a head injury, it was all the more a grievous negligence on the part of the doctor as vomiting was an indication of there being some trauma in the head.
The contention of Mr. Vishal Chaudhary seems to carry weight. As an orthopaedic surgeon, Dr. Virendra Srivastava was expected to know the consequence of Doxapram injection and during his arguments before us he conceded that had he known about the head injury and trauma he would not have prescribed the said injection. Also he submitted while justifying his decision for the said injection being prescribed by him that the patient being on the x-ray table felt respiratory problem and, therefore, he was immediately put on oxygen and after he had vomited the injection was prescribed as Doxapram injection is known for its good results and instant relief in a situation of respiratory distress.
10. Dr. O.N. Gupta of the District Hospital who was member of a team which had conducted post-mortem of the deceased stated in his affidavit that Sri Anup Kumar Srivastava had a traumatic swelling in his occipitals area of his head which during autopsy was found to be fractured. Dr. O.N. Gupta also stated in his affidavit filed before the Forum below that in his parietal region also there was a traumatic swelling. On the face of this evidence of Dr. O.N. Gupta, Dr. Virendra Srivastava would be deemed to have been negligent if he did not search for the head injuries by probing and examination of the head. According to Dr. Virendra Srivastava when the patient vomited he noted on the left hand side of the prescription that head injuries had to be probed into but before it could be done Doxapram injection was prescribed and administered so as to relieve the patient from respiratory distress. In our considered opinion Dr. Virendra Srivastava should not have prescribed Doxapram injection when he was not sure about the existence of head injuries.
11. Learned Counsel for the complainants has placed before us the tenth edition of Clinical Pharmacology written by Peter N. Bennett and Morris J. Brown. The extract from this book deals with respiratory stimulants attack and as mentioned, Doxapram is stated to increase the rate and depth of respiration by stimulating the medullary respiratory centres both directly and reflexly through the carotid body. However, a Doxapram injection is contra indicative in patient with evidence of head injury, cerebral vascular accident or cerebral edema, etc. The explanation of Dr. Yirendra Srivastava that he prescribed the injection with bona fide intention so that the patient could get rid of his respiratory distress may look to be simple but not full of care much less of the standard as was required of him. He was alive of the implications of a Doxapram injection if given to a patient of head injury but in haste and without realizing the implications of the drug he prescribed and administered the injection which proved fatal resulting in patients death. There could be other stimulants to relieve the patient of his respiratory problem. It is not necessary for us to describe such stimulants but it is certain that Doxapram was not the only drug for respiratory problems. With every such injection, potential risk factors must have been kept in mind by Dr. Virendra Srivastava and other drugs as Bambuterol, Formoterol and Salmeterol and many more as argued by the learned Counsel for the complainants could have been prescribed. The presence of traumatic swelling at two places i.e. occipital and parietal regions could very well be detected by Dr. Virendra Srivastava, had he been little careful to examine the head and probe for the injuries. Vomiting was another indication that there was something wrong with the patients brain as vomiting is one of several other factors which could suggest a head injury or haemorrhage. In both the situations the negligence on the part of Dr. Virendra Srivastava is apparent and we are, therefore, of the opinion that Dr. Virendra Srivastave committed medical negligence while prescribing and administering Doxapram injection to the deceased who died soon after the injection being administered.
12. Mr. Rajesh Chadha and Mr. Rajesh Nath, learned Counsel for the doctor and the Insurance Company respectively referred to the evidence of Dr. K.P. Mishra and presence of two other doctors namely Dr. K.M. Singh and Dr. Sunil Arya but since these doctors had not prepared any notes or prescription, their presence or evidence is of no help to the defendants. Likewise the contention that no fee was charged and as such there was no relationship of a âconsumer and âservice provider is meaningless as Dr. Virendra Srivastava does not run a charitable hospital so as to provide free medical care and treatment to all concerned. He is a professional doctor and runs his clinic for providing service to the patients for consideration. We are, therefore, not impressed with the aforesaid argument.
In view of the discussions held above, we find that Dr. Virendra Srivastava and his indemnity insurer i.e. National Insurance Company Limited are liable to pay the compensation to the complainants.
13. The complainants have described the award of Rs. 2,00,000 as compensation to be too inadequate. Not much has been said by the complainants/appellants in their memorandum of appeal or in their complaint filed before the Forum below. They had prayed for an award of Rs. 4,50,000 in their complaint besides interest and the same prayer has been reiterated in their memorandum of appeal. They filed their complaint on 31.12.1998 i.e. about four and half months after the death of Sri Anup Kumar Srivastava. Obviously the litigation is pending for about 13 years. Indeed, the award of Rs. 2,00,000 as compensation appears to be on lower side. The deceased at the time of his death was about 37 years of age. He would have lived upto 70-75 years age had he not prematurely died on account of the accident and fatal injection administered to him. If we calculate in this way he would have earned and supported his family for atleast 30-35 years. Even a Class-IV employee gets these days, a sum of about Rs. 10,000 per month and this in terms of value in the year 1998 would have been Rs. 4,000 or Rs. 5,000 per month. Taking an average income of the deceased to be as Rs. 60,000 per annum he would have earned for 30 years about Rs. 18,00,000. Keeping these bare calculations of his earnings and his own expenditures we can observe that a compensation of Rs. 4,50,000 seems to be sustainable and justifiable.
14. We, therefore, modify the operative part of the impugned judgment and award a sum of Rs. 4,50,000 as compensation for the untimely death of Sri Anup Kumar Srivastava. Dr. Virendra Srivastava and National Insurance Company Limited both shall be jointly as well as severally liable to make the payment good. The prayer for pending and future interest also seems to be just and reasonable and accordingly we award interest on the aforesaid sum @ 10% per annum from the date of accident until the payment is made. Due credit would be given to the deposits made by the doctor or the Insurance Company in compliance to this Commissions order. The liability of interest would proportionately be reduced in case of the deposit having been made.
Whereas in the light of discussions made above, we hold that the two appeals of Dr. Virendra Srivastava and the National Insurance Company are liable to be dismissed with costs which we quantify to be at Rs. 10,000 and dismissed accordingly, the appeal preferred by the complainants is allowed in terms of modification as laid above.
This judgment shall be placed on the record of Appeal No. 1117/2005 with its copy to be laid on the record of Appeal Nos. 1360/2005 and 1415/2005.
Appeal allowed.