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Saturday, July 4, 2015

medical negligence against the State of Tamil Nadu, its Government Hospital and two Government Doctors= The appellant - V. Krishnakumar, Sharanya’s father is the sole earning member of a middle class family. His wife is said to be a qualified accountant, who had to sacrifice her career to attend to the constant needs of Sharanya. Sharanya’s treatment and the litigation that ensued for almost two decades has been very burdensome on account of the prolonged physical, mental and financial hardships, which her parents had to undergo. It appears that the total expenditure incurred by the appellant from the date of the final verdict of the NCDRC (27.5.2009) until December, 2013 is Rs.8,13,240/-. The aforesaid amount is taken from the uncontroverted statement of expenditure submitted by the appellant. The appellant has stated that he had incurred the following expenditure for Sharanya’s treatment, for which there is no effective counter, till December, 2013: | Medical Expenses |Amount |Supporting Document | |a)Till December |28,63,771/- |Exhibit P1-P4 | |2003 | | | |b)January 2004- |2,57,600/- |Annexure A-8 | |October 2007 | | | |c)27.5.2009 to |8,13,240/- |I.A. No.2 of 2014 in | |December 2013 | |Civil Appeal No. 8065 of| | | |2009 | |d)January 2014 – |2,03,310/- |Based on I.A. No.2 of | |March 2015 | |2014 in Civil Appeal No.| | | |8065 of 2009 | |Total |41,37,921/- | | |(a)+(b)+(c)+(d) | | | We accordingly direct that the above amount i.e. Rs.42,87,921/- shall be paid by the Respondent Nos.1 to 4. In addition, interest at the rate of 6% p.a. shall be paid to the appellant from the date of filing of the petition before the NCDRC till the date of payment. Future Medical Expenses= Going by the uncontroverted statement of expenditure for the period from the final verdict of the NCDRC to December, 2013, the monthly expenditure is stated to be Rs. 13,554/-, resulting in an annual expenditure of Rs. 1,62,648/-. Having perused the various heads of expenditure very carefully, we observe that the medical costs for Sharanya’s treatment will not remain static, but are likely to rise substantially in the future years. Sharanya’s present age is about 18 ½ years. If her life expectancy is taken to be about 70 years, for the next 51 years, the amount of expenditure, at the same rate will work out to Rs. 82,95,048/-. It is therefore imperative that we account for inflation to ensure that the present value of compensation awarded for future medical costs is not unduly diluted, for no fault of the victim of negligence Apportioning For Inflation 23. Inflation over time certainly erodes the value of money. The rate of inflation (Wholesale Price Index-Annual Variation) in India presently is 2 percent[4] as per the Reserve Bank of India. The average inflationary rate between 1990-91 and 2014-15 is 6.76 percent as per data from the RBI. In the present case we are of the view that this inflationary principle must be adopted at a conservative rate of 1 percent per annum to keep in mind fluctuations over the next 51 years. The formula to compute the required future amount is calculated using the standard future value formula:- FV = PV x (1+r)n PV = Present Value r = rate of return n = time period Accordingly, the amount arrived at with an annual inflation rate of 1 percent over 51 years is Rs.1,37,78,722.90 rounded to Rs.1,38,00,000/-. Comparative law = 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 Respondent No. 1, the State of Tamil Nadu, which establishes and administers such hospitals through its Department of Health, from its liability.Apportionment of Liability 28. In the circumstances, we consider it appropriate to apportion the liability of Rs. 1,38,00,000/- among the respondents, as follows: Rs. 1,30,00,000/- shall be paid by Respondent Nos. 1 and 2 jointly and severally i.e. The State of Tamil Nadu and the Director, Government Hospital for Women & Children, Egmore, Chennai; and Rs. 8,00,000/- shall be paid by Respondent Nos. 3 and 4 equally i.e. Rs. 4,00,000/- by Dr. S. Gopaul, Neo- pediatrician, Government Hospital for Women & Children, Egmore, Chennai and Rs. 4,00,000/- by respondent no. 4 i.e. Dr. Duraisamy, Neo Natology Unit, Government Hospital for Women & Children, Egmore, Chennai. The above mentioned amount of Rs. 1,38,00,000/- shall be paid by Respondent Nos. 1 to 4 within three months from the date of this Judgment otherwise the said sum would attract a penal interest at the rate of 18% p.a. 29. Further, we direct that the amount of Rs. 42,87,921/- in lieu of past medical expenses, shall be apportioned in the following manner: a) Respondent Nos. 1 and 2 are directed to pay Rs. 40,00,000/- jointly, alongwith interest @ 6% p.a. from the date of filing before the NCDRC; and b) Respondent Nos. 3 and 4 are directed to pay Rs. 2,87,921/- in equal proportion, alongwith interest @ 6% p.a. from the date of filing before the NCDRC. 30. In the event the Respondent Nos. 1 and 3 have made any payment in accordance with the award of the NCDRC, the same may be adjusted. 31. Accordingly, Civil Appeal No. 8065 of 2009 is allowed in the above terms and Civil Appeal No. 5402 of 2010 is dismissed. No costs.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION



                       CIVIL  APPEAL No. 8065  OF 2009





V. KRISHNAKUMAR                              .. APPELLANT



                             VERSUS

STATE OF TAMIL NADU & ORS.                    ..RESPONDENTS

                                    With

                       CIVIL  APPEAL No.  5402 OF 2010



                                 1 JUDGMENT



S. A. BOBDE, J.

These two Civil Appeals are  preferred  against  the  judgment  of  National
Consumer Disputes Redressal  Commission  (hereinafter  referred  to  as  the
‘NCDRC’) rendering a finding of medical  negligence  against  the  State  of
Tamil Nadu, its Government Hospital and two Government Doctors and  awarding
a sum of Rs.5,00,000/- to V. Krishnakumar.  Civil Appeal No.  8065  of  2009
is  preferred  by  V.  Krishnakumar  for  enhancement  of  the   amount   of
compensation.  Civil Appeal No. 5402 of 2010 is preferred by  the  State  of
Tamil Nadu and another against the judgment of the NCDRC.  As facts of  both
the appeals are same, we are disposing the appeals by this common judgment.
2.          On 30.8.1996, the appellant V.  Krishankumar's  wife  Laxmi  was
admitted in Government Hospital for  Women  and  Children,  Egmore,  Chennai
(hereinafter referred to as the “Hospital”). Against  the  normal  gestation
period of 38 to 40 weeks, she delivered a premature female baby in the  29th
week of 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
mother and the baby were discharged on 23.9.1996.  A fact which is  relevant
to the issue is, that 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. She  was  under
the care of Respondent No.3 - Dr. S.Gopaul, Neo-paediatrician and  Chief  of
Neo Natology Unit of the Hospital and Respondent No.4 -  Dr.  Duraiswamy  of
the Neo Natology Unit of the Hospital.  The Respondent No.2 is the  Director
of the Hospital, which is established and  run  by  the  Respondent  No.1  –
State of Tamil Nadu under the Department of Health.
3.          The baby and the mother visited the hospital  on  30.10.1996  at
the chronological age of 9 weeks. Follow up treatment  was  administered  at
the home of the appellant by Respondent No.4,  the  Government  Doctor,  Dr.
Duraiswamy during home visits.  The baby was under his care from 4 weeks  to
13 weeks  of  chronological  age.  Apparently,  the  only  advice  given  by
Respondent No.4 was to keep the baby  isolated  and  confined  to  the  four
walls of the sterile room so that she could  be  protected  from  infection.
What was completely overlooked was a well known medical  phenomenon  that  a
premature baby who has been administered supplemental oxygen  and  has  been
given blood transfusion is prone to a higher risk of a disease known as  the
Retinopathy of Prematurity (hereinafter referred to  as  ‘ROP’),  which,  in
the usual course of advancement makes a child blind.  The  Respondent  No.3,
who was also a Government Doctor, checked up the baby at his private  clinic
at Purassaiwakkam, Chennai when the baby was 14-15  weeks  of  chronological
age also did not suggest a check up for ROP.
4.          One  thing  is  clear  about  the  disease,  and  this  was  not
contested by the learned counsel  for  the  respondents,  that  the  disease
occurs in infants who are prematurely born and who  have  been  administered
oxygen and blood transfusion upon birth and further, that if detected  early
enough, it can be prevented.  It is said that  prematurity  is  one  of  the
most common causes of blindness and is caused  by  an  initial  constriction
and then rapid growth of  blood  vessels  in  the  retina.  When  the  blood
vessels leak, they cause scarring. These scars can later shrink and pull  on
the retina,  sometimes  detaching  it.  The  disease  advances  in  severity
through five stages - 1, 2, 3, 4 and 5 (5 being  terminal  stage).   Medical
literature suggests that stage 3 can be  treated  by  Laser  or  Cryotherapy
treatment in order to eliminate the abnormal vessels. Even in  stage  4,  in
some cases, the central retina or  macula  remains  intact  thereby  keeping
intact the central vision. When the disease is allowed to progress to  stage
5, there is a total detachment and the retina becomes funnel shaped  leading
to blindness. There is ample medical  literature  on  the  subject.  It  is,
however, not necessary to refer all of it. Some  material  relevant  to  the
need for check up for ROP for an infant is:
“All infants with a birth weight less than 1500 gms or gestational age  less
than 32 weeks are required to be screened for ROP.”[1]

Applying either parameter, whether weight  or  gestational  age,  the  child
ought to have been screened.  As stated earlier, the child was 1250  gms  at
birth and born after 29 weeks of pregnancy, thus  making  her  a  high  risk
candidate for ROP.
5.          It is undisputed that  the  relationship  of  birth  weight  and
gestational age to ROP as reproduced in NCDRC’s order is as follows:
“Most ROP is seen in very low-birth weight infants,  and  the  incidence  is
inversely related to birth weight  and  gestational  age.  About  70-80%  of
infants with birth weight less than 1000 gms  show  acute  changes,  whereas
above 1500 gms birth weight the frequency falls to less than 10%.”

6.          Again, it seems that the child in question was  clearly  not  in
the category where the frequency was less than 10% since the baby was  below
1500 gms. In fact, it is observed  by  the  NCDRC  in  its  order  that  the
discipline of medicine reveals that all infants who had undergone less  than
29 weeks of gestation or  weigh  less  than  1300  gms  should  be  examined
regardless of whether they have been  administered  oxygen  or  not.  It  is
further observed that ROP is a visually devastative disease that  often  can
be treated successfully if it is diagnosed in time.
7.          The need for a medical check up for the infant in  question  was
not seriously disputed by the respondents.
8.          The  main  defence  of  the  respondents  to  the  complaint  of
negligence against the appellant’s claim for compensation was  that  at  the
time of delivery and management, no  deformities  were  manifested  and  the
complainant was given proper advice, which was not followed. It  was  argued
on behalf of the respondent that  they  had  taken  sufficient  precautions,
even against ROP by mentioning in the discharge summary as follows:
“Mother confident;  Informed  about  alarm  signs;  1)  to  continue  breast
feeding 2) To attend post natal O.P. on Tuesday."

9.          It must, however, be noted  that  the  discharge  summary  shows
that the above writing was in the nature of a scrawl in the  corner  of  the
discharge summary and we are in agreement with  the  finding  of  the  NCDRC
that the said remarks  are  only  a  hastily  written  general  warning  and
nothing more.  After a stay of 25 days in  the  hospital,  it  was  for  the
hospital to give a clear indication as to what was to be done regarding  all
possible dangers which a baby in these circumstances faces.  It  is  obvious
that it did not occur to the respondents to advise the  appellant  that  the
baby is required to be seen by a paediatric ophthalmologist since there  was
a possibility of occurrence  of  ROP  to  avert  permanent  blindness.  This
discharge summary neither discloses a warning to the infant’s  parents  that
the infant might develop ROP  against  which  certain  precautions  must  be
taken, nor any signs that  the  Doctors  were  themselves  cautious  of  the
dangers of development of ROP.  We are not prepared to infer from  ‘Informed
about alarms signs’ that the parents were cautioned about ROP in this  case.
 We find it unfortunate that the respondents at one stage took a stand  that
the appellant did not follow up properly by not attending on a  Tuesday  but
claiming that the mother attended on a Wednesday  and  even  contesting  the
fact that she attended on a Wednesday.  It appears like a 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.  In fact, it is not disputed that the Respondent No.3 attended to  and
examined the baby at his private clinic when the baby was  14-15  weeks  and
even then did not take any step to investigate into the onset of  ROP.   The
Respondent No.4 also visited the appellant to check up the baby at the  home
of the appellant and there are prescriptions issued by the  said  Respondent
No.4, which suggests that the baby was indeed under his care  from  4  weeks
to 13 weeks.
10.   The NCDRC has relied on the report dated 21.8.2007 of  the  All  India
Institute of  Medical  Sciences,  New  Delhi  (hereinafter  referred  to  as
‘AIIMS’).  In pursuance of the order of  the  NCDRC,  a  medical  board  was
constituted by  AIIMS  consisting  of  five  members,  of  which,  four  are
ophthalmological specialists. The board has given the following opinion:-
"A premature infant is not born with Retinopathy of Prematurity  (ROP),  the
retina though immature is normal  for  this  age.  The  ROP  usually  starts
developing 2-4 weeks after birth when  it  is  mandatory  to  do  the  first
screening of the child. The current guidelines are  to  examine  and  screen
the babies with birth weight<1500g and <32 weeks gestational  age,  starting
at 31 weeks post-conceptional age (PAC) or 4 weeks after birth whichever  is
later. Around a decade ago, the guidelines in general were the same and  the
premature babies were first examined at 31-33  weeks  post-conceptional  age
or 2-6 weeks after birth.
There is a general agreement on these above guidelines  on  a  national  and
international level.  The  attached  annexure  explains  some  authoritative
resources and guidelines published in national and international  literature
especially over the last decade.
However,  in  spite  of  ongoing  interest  world  over  in  screening   and
management of ROP and  advancing  knowledge,  it  may  not  be  possible  to
exactly predict which premature baby will develop ROP  and  to  what  extent
and why."


              Review of literature of ROP screening guidelines


One thing this report reveals clearly and that is that in the  present  case
the onset of ROP was reasonably foreseeable.  We  say  this  because  it  is
well known that if a  particular  danger  could  not  reasonably  have  been
anticipated it cannot be said that a person has acted  negligently,  because
a  reasonable  man  does  not   take   precautions   against   unforeseeable
circumstances.  Though it was fairly suggested to the contrary on behalf  of
the respondents, there is nothing to indicate that the disease  of  ROP  and
its occurrence was not known to the medical profession  in  the  year  1996.
This is important because whether the consequences were foreseeable  or  not
must be measured with reference to knowledge at  the  date  of  the  alleged
negligence, not with hindsight.  We are  thus  satisfied  that  we  are  not
looking at the 1996 accident with 2007 spectacles.[2]
11.   It is obvious from the report that ROP starts developing 2 to 4  weeks
after birth when it is mandatory to do the first  screening  of  the  child.
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.  The report of the AIIMS (supra) states that ‘it may not  be  possible
to exactly predict which premature baby will develop ROP and to what  extent
and why’.  This in our view underscores the need for a check up in all  such
cases.  In fact,  the  screening  was  never  done.  There  is  no  evidence
whatsoever to suggest to the contrary.  It appears from  the  evidence  that
the ROP was discovered when the appellant went  to  Mumbai  for  a  personal
matter and took his daughter to  a  paediatrician,  Dr.  Rajiv  Khamdar  for
giving DPT shots when she was 4½ months.  That Doctor, suspected ROP  on  an
examination with naked eye even without knowing  the  baby’s  history.  But,
obviously Respondent Nos.3 and 4 the Doctors entrusted with the care of  the
child did not detect any such thing at  any  time.   The  helpless  parents,
after detection got the baby’s eyes checked by having the baby  examined  by
several doctors at several places.  Traumatised and shocked, they rushed  to
Puttaparthy for the blessings of Shri  Satya  Sai  Baba  and  the  baby  was
anesthetically examined by Dr.  Deepak  Khosla,  Consultant,  Department  of
Ophthalmology at Baba Super Specialty Hospital at  Puttaparthy.  Dr.  Khosla
did not take up the case since the ROP had reached stage  5.   After  coming
back from Puttaparthy, the baby was examined by Dr. Tarun  Sharma  alongwith
the retinal team of Shankar Netralaya, who were also of  the  same  opinion.
The parents apparently took the baby  to  Dr.  Namperumal  Swamy  of  Arvind
Hospital, Madurai, who advised against  surgery,  stating  that  the  baby’s
condition was unfavourable for surgery. The appellant  then  learnt  of  Dr.
Michael Tresse, a renowned expert in Retinopathy  treatment  for  babies  in
the United States. He obtained a reference  from  Dr.  Badrinath,  chief  of
Shankar Netralaya and took his only child to the United  States  hoping  for
some ray of light.  The appellant incurred enormous expenses for surgery  in
the United States but to no avail.
12.   Having given our anxious consideration to the matter, we find that  no
fault can be found with the  findings  of  the  NCDRC  which  has  given  an
unequivocal finding that at no stage,  the  appellant  was  warned  or  told
about the possibility of occurrence of ROP by the  respondents  even  though
it was their duty to do so. Neither  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  and  that
this constituted a gross deficiency in service, nor  did  they  refer  to  a
paediatric ophthalmologist.  Further it may be noted that Respondent Nos.  3
& 4 have not appealed to this Court against the judgment of  the  NCDRC  and
have thus accepted the finding of medical negligence against them.
Deficiency in Service
13.   In the circumstances, we agree 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 is mandatory to do so and especially since  the  child  was  under  their
care. Thus, the negligence began under the supervision of the Hospital  i.e.
Respondent No.2. The Respondent Nos. 3 and 4, who checked the  baby  at  his
private  clinic  and  at  the  appellant’s  home,  respectively,  were  also
negligent in not advising screening for ROP. It is pertinent  to  note  that
Respondent Nos. 3 and 4 carried on their own private  practice  while  being
in the employment of Respondent No. 2, which was a violation of their  terms
of service.
Compensation
14.   The next question that falls for  consideration  is  the  compensation
which the respondents are liable to pay for their negligence and  deficiency
in service.  The child called Sharanya has been  rendered  blind  for  life.
The darkness in her life can  never  be  really  compensated  for  in  money
terms. Blindness can have terrible consequences. Though, Sharanya  may  have
parents now, there is no doubt that she will not have  that  protection  and
care forever.  The family belongs to the middle class and  it  is  necessary
for the father to attend to his work.  Undoubtedly, the mother would not  be
able to take Sharanya out everywhere and is bound to leave the  child  alone
for reasonable spells of time. During this time,  it  is  obvious  that  she
would require help and maybe later on in life  she  would  have  to  totally
rely on such help. It is therefore difficult to imagine unhindered  marriage
prospects or even a regular career which  she  may  have  otherwise  pursued
with ease.  She may also face great difficulties in getting  education.  The
parents  have  already  incurred  heavy  expenditure  on  the  treatment  of
Sharanya to no avail.  It is, thus, obvious that there  should  be  adequate
compensation for the expenses already  incurred,  the  pain  and  suffering,
lost wages and the future care that would be necessary while accounting  for
inflationary trends.
15.   There is no doubt that in the future Sharanya  would  require  further
medical attention and would have to incur costs on  medicines  and  possible
surgery.  It can be reasonably said that the blindness has put  Sharanya  at
a great disadvantage in her pursuit for making a good  living  to  care  for
herself.
16.   At the outset, it may be noted that in  such  cases,  this  court  has
ruled out the  computation  of  compensation  according  to  the  multiplier
method. (See Balram Prasad vs. Kunal Saha, (2014)  1  SCC  384  and  Nizam’s
Institute of Medical Sciences vs. Prashant S. Dhananka and Others, (2009)  6
SCC 1.
The court rightly warned against the straightjacket approach  of  using  the
multiplier method for calculating damages in medical negligence cases.
Quantification of Compensation
17.   The principle of awarding compensation that can be  safely  relied  on
is 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 the following passage from the latter:
“170. Indisputably, grant of compensation involving an  accident  is  within
the realm of law of torts. It is based on the  principle  of  restitutio  in
integrum. The said principle provides that  a  person  entitled  to  damages
should, as nearly as possible, get that sum of money which would put him  in
the same position as he would have been if he had not sustained  the  wrong.
(See Livingstone v. Rawyards Coal Co.).”

An application of this principle is that the  aggrieved  person  should  get
that sum of money, which would put him in the same position if  he  had  not
sustained  the  wrong.  It  must  necessarily  result  in  compensating  the
aggrieved person for the financial loss suffered due to the event, the  pain
and suffering undergone and the liability that he/she would  have  to  incur
due to the disability caused by the event.

Past Medical Expenses
18.   It is, therefore, necessary to consider the loss  which  Sharanya  and
her parents had to  suffer  and  also  to  make  a  suitable  provision  for
Sharanya’s future.
19.   The appellant  -  V.  Krishnakumar,  Sharanya’s  father  is  the  sole
earning member of a  middle  class  family.   His  wife  is  said  to  be  a
qualified accountant, who had to sacrifice  her  career  to  attend  to  the
constant needs of Sharanya.  Sharanya’s treatment and  the  litigation  that
ensued for almost two decades has been very burdensome  on  account  of  the
prolonged physical, mental and financial hardships, which  her  parents  had
to  undergo.   It  appears  that  the  total  expenditure  incurred  by  the
appellant from the date of the final verdict of the NCDRC (27.5.2009)  until
December, 2013 is Rs.8,13,240/-.  The aforesaid amount  is  taken  from  the
uncontroverted statement of expenditure  submitted  by  the  appellant.  The
appellant has stated that he had  incurred  the  following  expenditure  for
Sharanya’s  treatment,  for  which  there  is  no  effective  counter,  till
December, 2013:
| Medical Expenses  |Amount        |Supporting Document     |
|a)Till December    |28,63,771/-   |Exhibit P1-P4           |
|2003               |              |                        |
|b)January 2004-    |2,57,600/-    |Annexure A-8            |
|October   2007     |              |                        |
|c)27.5.2009 to     |8,13,240/-    |I.A. No.2 of 2014 in    |
|December 2013      |              |Civil Appeal No. 8065 of|
|                   |              |2009                    |
|d)January 2014 –   |2,03,310/-    |Based on I.A. No.2 of   |
|March 2015         |              |2014 in Civil Appeal No.|
|                   |              |8065 of 2009            |
|Total              |41,37,921/-   |                        |
|(a)+(b)+(c)+(d)    |              |                        |

20.   Since there is no reason to assume that there has been any  change  in
the expenditure, we have calculated the expenditure  from  January  2014  to
March 2015 at the same rate as the preceding period.  In addition,  we  also
deem it fit to award a sum of  Rs.  1,50,000/-  in  lieu  of  the  financial
hardship  undergone  particularly  by  Sharanya’s  mother,  who  became  her
primary caregiver and was thus prevented from pursuing her  own  career.  In
Spring Meadows Hospital and Another v. Harjol  Ahluwalia  [1998  4  SCC  39]
this court acknowledged the  importance  of  granting  compensation  to  the
parents of a victim of medical negligence in  lieu  of  their  acute  mental
agony and the lifelong care and attention they would have  to  give  to  the
child. This being so, the financial hardship faced by the parents, in  terms
of lost wages and time must also be recognized. Thus, the above  expenditure
must be allowed.
21.   We accordingly direct that the above amount i.e. Rs.42,87,921/-  shall
be paid by the Respondent Nos.1 to 4.  In addition, interest at the rate  of
6% p.a. shall be paid to the appellant  from  the  date  of  filing  of  the
petition before the NCDRC till the date of payment.
Future Medical Expenses

22.   Going by the uncontroverted statement of expenditure  for  the  period
from the  final  verdict  of  the  NCDRC  to  December,  2013,  the  monthly
expenditure  is  stated  to  be  Rs.  13,554/-,  resulting  in   an   annual
expenditure  of  Rs.  1,62,648/-.  Having  perused  the  various  heads   of
expenditure  very  carefully,  we  observe  that  the  medical   costs   for
Sharanya’s treatment  will  not  remain  static,  but  are  likely  to  rise
substantially in the future years. Sharanya’s present  age  is  about  18  ½
years.  If her life expectancy is taken to be about 70 years, for  the  next
51 years, the amount of expenditure, at the same rate will work out  to  Rs.
82,95,048/-. It is therefore imperative that we  account  for  inflation  to
ensure that the present value of compensation  awarded  for  future  medical
costs is not unduly diluted, for no fault of the victim of  negligence.  The
impact of inflation affects us all. The value of  today’s  rupee  should  be
determined in the future. For instance, a sum of  Rs. 100 today, in  fifteen
years, given a modest 3% inflation rate, would be worth  only  Rs.64.13.  In
Wells v. Wells[3] the House of Lords observed that the purpose  of  awarding
a lump sum for damages for the costs of  future  care  and  loss  of  future
earnings was to put the plaintiff in the same financial position as  if  the
injury had not occurred, and consequently the courts had the difficult  task
of ensuring that the award maintained its value in real terms,  despite  the
effect of inflation.
Apportioning For Inflation
23.   Inflation over time certainly erodes the value of money. The  rate  of
inflation (Wholesale Price Index-Annual Variation) in India presently  is  2
percent[4] as per the Reserve Bank of India. The average  inflationary  rate
between 1990-91 and 2014-15 is 6.76 percent as per data  from  the  RBI.  In
the present case we are of the view that this  inflationary  principle  must
be adopted at a conservative rate of 1 percent per annum  to  keep  in  mind
fluctuations over the next 51 years.
The formula to compute the required future amount is  calculated  using  the
standard future value formula:-
      FV = PV x (1+r)n
PV = Present Value
r = rate of return
n = time period

Accordingly, the amount arrived at  with  an  annual  inflation  rate  of  1
percent over 51 years is Rs.1,37,78,722.90 rounded to Rs.1,38,00,000/-.
Comparative law
24.   This Court has referred to case law  from  a  number  of  other  major
common law jurisdictions on the question of accounting for inflation in  the
computation of awards in medical negligence  cases.  It  is  unnecessary  to
discuss it in detail. It  is  sufficient  to  note  that  the  principle  of
apportioning for inflationary fluctuations in the final lump sum  award  for
damages has been upheld and applied in numerous cases pertaining to  medical
negligence. In the United States of America, most states, as in Ireland  and
the United Kingdom, require awards for future medical costs  to  be  reduced
to their present value so that the damages can be awarded in the form  of  a
one-time  lump  sum.  The  leading  case  in  the   United   States,   which
acknowledges the impact of inflation while calculating damages  for  medical
negligence was Jones & Laughlin Steel  Corporation  v.  Pfeifer[5],  wherein
that court recognized the propriety of taking into account  the  factors  of
present value and  inflation  in  damage  awards.  Similarly,  in  O'Shea  v
Riverway Towing Co.[6], Posner J.,  acknowledged  the  problem  of  personal
injury victims being severely undercompensated as a result  of  persistently
high inflation.

In  Taylor  v.  O’  Connor[7],  Lord  Reid  accepted   the   importance   of
apportioning for inflation:
“It will be observed that I have more than once taken note  of  present  day
conditions - in particular  rising  prices,  rising  remuneration  and  high
rates of interest. I am well aware that there is a school of  thought  which
holds that the law should refuse to have any regard to  inflation  but  that
calculations should be based on stable prices, steady or  slowly  increasing
rates of remuneration and low rates of interest.  That  must,  I  think,  be
based either on an expectation of an early return to a period  of  stability
or on a nostalgic reluctance to recognise change.  It  appears  to  me  that
some people fear that inflation will get worse, some think that it  will  go
on much as  at  present,  some  hope  that  it  will  be  slowed  down,  but
comparatively few believe that a return to the old  financial  stability  is
likely in the foreseeable future. To take any account  of  future  inflation
will no doubt cause complications and make estimates  even  more  uncertain.
No doubt we should not assume the worst but it  would,  I  think,  be  quite
unrealistic to refuse to take it into account at all.”

In the same case Lord Morris of Borth-y-Gest also upheld  the  principle  of
taking into account future uncertainties. He observed:

“It is to be remembered that the sum which is awarded will  be  a  once-for-
all or final amount which the widow  must  deploy  so  that  to  the  extent
reasonably possible she gets the equivalent of what she has lost. A  learned
judge cannot be expected to prophesy as to future monetary trends  or  rates
of interest but he need  not  be  unmindful  of  matters  which  are  common
knowledge, such as the uncertainties as to  future  rates  of  interest  and
future levels of taxation. Taking a reasonable  and  realistic  and  common-
sense view of all aspects of the matter he must try to fix  a  figure  which
is neither unfair to the recipient nor to the one who has to pay. A  learned
judge might well take the view that a recipient would be ill-advised  if  he
entirely ignored all inflationary trends and if he applied  the  entire  sum
awarded to him in the purchase of an annuity which over a  period  of  years
would give him a fixed and predetermined sum  without  any  provision  which
protected him against inflationary trends if they developed.”

More recently the Judicial Committee of the UK Privy  Council  in  Simon  v.
Helmot[8] has unequivocally acknowledged the principle, that  the  lump  sum
awarded in medical negligence cases should be adjusted so as to reflect  the
predicted rate of inflation.
25.   Accordingly, we direct that  the  said  amount  i.e.  Rs.1,38,00,000/-
shall be paid, in the form of a Fixed Deposit, in the name of  Sharanya.  We
are informed  that  the  said  amount  would  yield  an  approximate  annual
interest of Rs. 12,00,000/-.
26.   We find from the impugned order of the  NCDRC  that  the  compensation
awarded by that Forum is directed to be paid only by Respondent Nos.  1  and
3 i.e. the  State  of  Tamil  Nadu  and  Dr.  S.  Gopaul,  Neo-pediatrician,
Government Hospital for Women & Children, Egmore, Chennai.   No  reason  has
been assigned by the Forum  for  relieving  Respondent  Nos.2  and  4.   Dr.
Duraiswami, Neo Natology Unit, Government Hospital  for  Women  &  Children,
Egmore, Chennai, who also treated Sharanya during the course of  his  visits
to the house of the appellant.
27.    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
Respondent  No.  1,  the  State  of  Tamil  Nadu,  which   establishes   and
administers such hospitals  through  its  Department  of  Health,  from  its
liability.





Apportionment of Liability
28.   In the circumstances, we consider  it  appropriate  to  apportion  the
liability of Rs. 1,38,00,000/- among the respondents, as follows:
   Rs.  1,30,00,000/- shall be paid by Respondent Nos. 1 and 2  jointly  and
severally i.e.  The  State  of  Tamil  Nadu  and  the  Director,  Government
Hospital for Women & Children, Egmore, Chennai; and
   Rs. 8,00,000/- shall be paid by Respondent Nos. 3 and 4 equally i.e.  Rs.
4,00,000/- by Dr. S. Gopaul,  Neo-  pediatrician,  Government  Hospital  for
Women & Children, Egmore, Chennai and Rs. 4,00,000/-  by  respondent  no.  4
i.e. Dr. Duraisamy, Neo Natology Unit,   Government  Hospital  for  Women  &
Children, Egmore, Chennai.
The above mentioned amount of Rs. 1,38,00,000/- shall be paid by  Respondent
Nos. 1 to 4 within three months from the date  of  this  Judgment  otherwise
the said sum would attract a penal interest at the rate of  18% p.a.
29.   Further, we direct that the amount of Rs. 42,87,921/- in lieu of  past
medical expenses, shall be apportioned in the following manner:
a)          Respondent Nos. 1 and 2  are  directed  to  pay              Rs.
40,00,000/- jointly, alongwith interest @ 6% p.a. from the  date  of  filing
before the NCDRC; and
b)          Respondent Nos. 3 and 4 are  directed  to  pay               Rs.
2,87,921/- in equal proportion, alongwith interest @ 6% p.a. from  the  date
of filing before the NCDRC.
30.   In the event the Respondent Nos. 1 and 3  have  made  any  payment  in
accordance with the award of the NCDRC, the same may be adjusted.
31.   Accordingly, Civil Appeal No. 8065 of 2009 is  allowed  in  the  above
terms and Civil Appeal No. 5402 of 2010 is dismissed. No costs.

                                               ..………………………….…..........…..J.
                                                      [JAGDISH SINGH KHEHAR]




                                   …...................................………J.
                                                     [S.A. BOBDE]
NEW DELHI,
JULY 1, 2015
-----------------------
[1]    AIIMS Report dated 21.8.2007
[2]     See Roe v. Minister of Health [1954] 2 QB 66 and the  discussion  in
‘Medical Negligence’, Michael Jones, 4th Edition, Sweet  &  Maxwell,  London
2008 at page 270.
[3]    [1999] 1 A.C. 345.
[4]    Handbook of Statistics, Reserve Bank of India
[5]    (1983) 462 US 523
[6]    (1982) 677 F.2d 1194, at 1199 (7th Cir)
[7]    [1971] A.C. 115
[8]    [2012] UKPC 5


-----------------------
|Year  |Source         |First Screening|Who to screen   |
|2006  |American       |31 wks PCA or 4|<1500gms birth  |
|      |Academy of     |wks after birth|weight or <32   |
|      |Pediatrics et  |whichever later|wks GA or higher|
|      |al.            |               |                |
|2003  |Jalali S et al.|31 wks PCA or  |<1500g birth    |
|      |Indian J       |3-4 wks after  |weight or <32   |
|      |Ophthalmology  |birth whichever|wks GA or higher|
|      |               |earlier        |                |
|2003  |Azad et al.    |32 wks PCA or  |<1500g birth    |
|      |JIMA           |4-5 wks after  |weight or <32   |
|      |               |birth-         |wks GA or higher|
|      |               |whichever      |                |
|      |               |earlier        |                |
|2002  |Aggarwal R et. |32 wks PCA or  |<1500 gm birth  |
|      |Al Indian J.   |4-6 wks after  |weight or <32   |
|      |Pediatrics     |birth whichever|wks GA          |
|      |               |earlier        |                |
|1997  |American       |31-33 wks PCA  |<1500 gm birth  |
|      |Academy of     |or 4-6 wks     |weight or <28   |
|      |Paediatrics et |after birth    |wks GA or higher|
|      |al.            |               |                |
|1996  |Maheshwari R et|32 wks PCA or 2|<1500 gm birth  |
|      |al. National   |wks after birth|weight or <35   |
|      |Med. J. India  |whichever is   |wks GA or 02>24 |
|      |               |earlier        |hrs             |
|1988  |Cryotherapy ROP|4-6 wks after  |<1250 gms birth |
|      |Group          |birth          |weight          |








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