Friday, 3 July 2015

SUPREME COURT TAUGHT A LESSON TO THE NCDRC TO CALCULATE COMPENSATION

The Supreme Court of India (SC) taught the National Consumer Dispute Redressal Commission (NCDRC) how to calculate Compensation in its Landmark Judgement of 1st July, 2015. Thereby SC enhanced the compensation of Rs. 5,00,000/- awarded by NCDRC to 1,38,00,000/- plus past medical expenses of Rs Rs.42,87,921/- (totalling to Rs.1,80,87,921/-). SC also spelt out in the judgement about the primary liability, vicarious liability, quantification of compensation, past medical expenses, future medical expenses, apportioning for inflation and apportionment of liability. SC was deciding two appeals one filed by the Appellant and another by the 1st Respondent (State) both against the decision of the NCDRC.

It is a case of medical negligence. Facts of the case are as follows:

On 30.8.1996, the appellant V. Krishankumar's wife was admitted in Government Hospital for Women and Children, Egmore, Chennai. She delivered a premature female baby weighed only 1250 grams in the 29th week of pregnancy ahead of the normal gestation period of about 38 to 40 weeks. The infant was in th incubator in intensive care unit for about 25 days. The mother and the baby were discharged on 23.9.1996. The crucial fact of 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 - Neo-paediatrician and Chief of Neo Natology Unit of the Hospital and Respondent No.4 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.
Both baby and the mother visited the hospital on 30.10.1996. Follow up treatment was administered at the home of the appellant by Respondent No.4, the Government Doctor during home visits. The baby was under his care from 4 weeks to 13 weeks of chronological age. The only advice given by Respondent No.4 was to keep the baby isolated and confined to the sterile room so that she could be protected from infection, but completely overlooked 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 (ROP) which could in the normal course makes a child blind. The Respondent No.3, who was also a Government Doctor, checked up the baby at his private clinic, Chennai when the baby was 14-15 weeks of chronological age also did not suggest a check-up for ROP. It was also observed that ROP is a visually devastative disease that often can be treated successfully if it is diagnosed in time. The ROP was discovered when the appellant went to Mumbai for a personal matter and took his daughter to a paediatrician for giving DPT shots when she was 4½ months.

In the circumstances, SC agreed 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 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 was also noted 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.

Quantification of Compensation

First of all the SC quantified Rs.42,87,921/- actual cost incurred by the Appellant and his family. Accordingly it directed that the above amount shall be paid by the Respondent Nos.1 to 4.
The next question that was considered by the SC is the compensation which the respondents are liable to pay for their negligence and deficiency in service by which the child has been rendered blind for life.

For awarding compensation the principle relied by the SC is 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. In other words, the aggrieved person should get that sum of money, which would put him in the same position if he had not sustained the wrong, i.e., compensating the aggrieved person for the financial loss suffered. For the purpose of calculating compensation, the SC considered various ingredients namely, Past Medical Expenses, Future Medical Expenses, Apportioning For Inflation in addition to the normal calculation. As a result, against the Rs. 5,00,000/- compensation awarded by the NCDRC, what is quantified by the SC is Rs.1,38,00,000/- and directed to be paid, in the form of a Fixed Deposit, in the name of the child.

The next issue considered by the SC is the Apportionment of Liability. It was also noted by the SC that the compensation awarded by the NCDRC was directed to be paid only by Respondent Nos. 1 and 3 i.e. the State of Tamil Nadu and Neo-pediatrician, Government Hospital for Women & Children, Chennai. However, no reason was assigned by the Forum for relieving Respondent Nos.2 and 4. who also treated the child during the course of his visits to the house of the appellant. SC also considered the settled law that the hospital is vicariously liable for the acts of its doctors. By the same measure, it is also 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.
After considering all these issues, SC apportioned the liability of Rs. 1,38,00,000/- and Rs.42,87,921/-among all the 4 respondents, in various terms and conditions with permission to adjust any payment already paid.


As a result, Civil Appeal No. 8065 of 2009 was allowed and and Civil Appeal No. 5402 of 2010 was dismissed.

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