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 |
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 |
