Government liable to compensate for negligence of Government hospital

S. Bhanupriya Vs State of Tamilnadu (Madras High Court)

Held that Government is vicariously liable for negligence on the part of the Government hospital. Court ordered lumpsum compensation of Rs. 5 Lakhs payable to the petitioner.

Facts-

The instant Writ Petition has been filed by a petitioner seeking for compensation from the respondents for the physical pain and mental agony underwent by her for a period of nearly nine months after delivering a child in the 3rd respondent hospital (a Government hospital), due to the alleged negligence on the part of the respondents.

Conclusion-

This Court holds that there was a clear negligence on the part of the 3rd respondent hospital for not having taken proper care of the petitioner and for having failed to shift the petitioner to Coimbatore Medical College Hospital when the situation really warranted.
Held that the 3rd respondent hospital must be held liable for negligence and the petitioner is entitled for payment of compensation by the 1st respondent since the Government is vicariously liable for negligence on the part of the Government hospital.

FULL TEXT OF THE JUDGMENT/ORDER OF MADRAS HIGH COURT

The instant Writ Petition has been filed by a mother seeking for compensation from the respondents for the physical pain and mental agony underwent by her for a period of nearly nine months after delivering a child in the 3^rd respondent hospital, due to the alleged negligence on the part of the respondents.

2. The case of the petitioner is that she was admitted in the 3^rd respondent hospital on 4.11.2005 and she delivered a baby boy on the same day at about 12.30 PM. The 4th respondent doctor performed the delivery and she had to use the forceps, since there was a last minute complication and it required stitches. From 5.11.2005 onwards, puss was oozing from the surgical scars and the petitioner was experiencing difficulty in urinating and defecating. On 9.11.2005, the stitches were undone by the 4^th respondent and she redid the stitches on the same day.

3. The situation did not improve for the petitioner and on 10.11.2005, Dr. Ilanchezian examined the petitioner and he used catheter to remove the puss and it was informed that the said doctor will perform the second surgery. The further case of the petitioner is that the situation was not improving for the petitioner and the puss was oozing and dribbling down the legs and she was undergoing extreme pain and hardship. Since there was no progress till 15.11.2005, the husband of the petitioner decided to get the petitioner discharged from the 3rd respondent hospital. The 4^th respondent informed that the petitioner has to wait for the second surgery to be performed by Dr. Ilanchezian and since he was not readily available, the petitioner was asked to wait. However, the husband of the petitioner was not able to take it anymore and he insisted for the discharge of the petitioner and the petitioner was discharged on 16.11.2005.

4. The petitioner was thereafter rushed to a private hospital and at which point of time, the petitioner was informed that her rectum had been injured due to the use of forceps and since it has not been stitched and treated properly, it got infected. Immediately, steps were taken to perform a surgery. The private doctor informed the petitioner that a three stage surgery would be needed to perfectly address the problem.

5. The first surgery was performed on 20.11.2005. Thereafter, the left leg of the petitioner began to swell and hence, the petitioner was admitted in the vascular care centre for nearly 15 days. The petitioner had to wait till the swelling subsided. Ultimately, the second surgery was performed during May 2006 and the third surgery was performed during July 2006.

6. In view of the above facts, the petitioner claims to have spent nearly Rs. 1.5 Lakhs towards surgery expenses and she was also forced to spend money towards medicine, rent and travel expenses. That apart, the petitioner was not able to take care of her new born child for nearly nine months. In view of the same, the petitioner has sought for compensation against the respondents and she has also sought for taking action against the 4th respondent for her negligence in performing the operation. The second limb of the relief sought for by the petitioner becomes infructuous since the 4^th respondent died during the pendency of this Writ Petition. Hence, this Court has to consider only the issue of negligence and the consequent payment of compensation.

7. The 2^nd respondent has filed a counter affidavit. The relevant portions in the counter affidavit are extracted hereunder :

“8. It is humbly submitted that Fourth Respondent herein was leave 13.11.2005. Another Gynaecologist namely Dr. Vijayanthi found that the wound of the patient again broken down and it turned cut and then she called the surgeon immediately. The patient was examined by the surgeon on the same day. After examination of the wound of the patient, the Surgeon opined that the skin and muscle was infected and the patient put on antibiotics and the wound be re-sutured only after 15 days, after controlling the infection. This opinion communicated to the patient’s husband immediately (i.e) on 13.11.2005. On 16.11.2005 it was informed to the patient’s husband that patient may be taken to Coimbatore Medical College Hospital, Coimbatore for the further treatment where the experts are available with good intention. But, the patient and her husband ignored the advice of the Doctor and chosen to go to a private Hospital. At their request, the patient was discharged from Government Hospital, Mettupalayam on 16.11.2005. These facts distinct that no negligence on the part of the third and fourth respondent.

9. I respectfully further submit that patient and her husband ware independently chosen to go for treatment at private Hospital. For their own decision, put allegations on the Government Hospital and the Doctor who gave treatment to her is unfair and unethical.

10. I further submit that negligence committed by the patient and her husband. In order to hide their mistakes preferred this writ petition and seeking compensation and action on the doctor who gave treatment to her with good intention. Therefore, the contention of the petitioner against the Government Hospital and the Doctor is unfair and unethical.

11. I submit that the documents submitted by the petitioner in the type set along with this writ petition are the concrete documentary evidence that there no negligence on the part of the Government Hospital and the Doctor who gave treatment to the petitioner.

12. I humbly submit that the Joint Director or Health Services, Coimbatore @ Tiruppur has submitted inquiry report to the District Collector, Coimbatore Vide their Letter Ref.No.2239/E8/2005 Dated: 21.09.2006. In this inquiry report, the Joint Director of Health Services, Coimbatore @ Tiruppur has been mentioned as follows:

“In my opinion there is a possibility of occurrence of complete perineal tear in the patient Mrs.Banupriya which can be treated and managed at Coimbatore Medical College Hospital, Coimbatore where there were enough facilities available.

Under the above enough circumstances and on the basis of the opinion statement submitted the by the expert doctors I am to conclude that

No negligence is noticed on the part of Doctors who gave treatment to the patient and hence the question of rendering financial remedy to the petitioner does not arise.”

8.The 3^rd and 4^th respondents have also filed counter affidavits. Since they have taken a similar defence, it will suffice to take note of the counter affidavit filed by the 3rd respondent and the relevant portions are extracted hereunder:

“5. It is respectfully submitted that after delivery of the baby, the episiotomy was sutured well and the patient’s pulse rate and B.P. was good and the patient was then treated with antibiotics. The petitioner started passing urine freely for four days and also passed motion and her wound was clean until then. While so when on the fifth day that is on 09.11.2005 when the doctor concerned examined the patient’s wound so as to discharge her, it was found there was a breakdown of muscle and skin layer which is a common complication for any surgical procedure depending upon the health and hence the fourth respondent put the patient on higher antibiotics and re-sutured the wound. Such repaired wound sometimes breaks down more than once, inspite of efficient and meticulous efforts requiring repeated repairs because of poor resistance power of the patient and proximity of the wound to anus which leads to all infections with known and unknown bacteria, some of which are resistant to all available antibiotics.

6.It is respectfully submitted that after re-suturing, the petitioner passed urine and motion freely through proper passages. While so she came to know, that when the doctor concerned was on leave on 13.11 2005, another gynaecologist Dr. Vijayanthi found that the wound of the petitioner was again broken down and it turned out to be complete perineal tear. The said doctor, it seems immediately called surgeon Dr. Ilanchezhian a surgeon who was in the same hospital.

7. It is respectfully submitted that the said doctor after examination of the wound of the patient gave his opinion that as the skin and muscle was infected, the patient be put on antibiotics and the wound be re-sutured only after 15 days after controlling the infection. The said surgeon also advised the duty Doctor to refer the patient to Coimbatore Medical College Hospital, the higher centre of treatment to get expert and adequate treatment. The opinion of the said surgeon was also communicated to the petitioner’s husband.

8.It is respectfully submitted that on 16.11.2005, when the doctor concerned was insisted the petitioner’s husband that the patient may be taken to Coimbatore Medical College Hospital, Coimbatore for further treatment where experts are available, the petitioner’s husband refused to heed to the advice of the doctor concerned and insisted for discharging the patient and hence having no other go, the doctor concerned discharged the patient on the said day.”

9.Heard Ms.Poongkhulali, learned counsel for the petitioner, Mr.T.K.Saravanan learned Government Advocate for R1 and R2 and Mr.N..Damodaran, learned counsel for R3

10.The learned counsel for the petitioner submitted that there was negligence on the part of the 4^th respondent since she did not take due care while performing episiotomy and as a result of the same, there was damage/rupture of the anus resulting in unbearable suffering for the petitioner. The learned counsel further submitted that the 3^rd respondent hospital was not taking immediate steps to treat the infected portion and from 5.11.2005 onwards, the petitioner was made to face unbearable pain and hardship till 16.11.2005 and the husband of the petitioner was forced to discharge her and give her treatment in a private hospital. As a result of the negligence of the 3^rd respondent hospital, the petitioner had to undergo three operations thereafter and also undergo treatment in a vascular care centre. In view of the same, the petitioner was forced to bear huge expenses and the petitioner was not even in a position to take care of her child for nearly nine months. The learned counsel therefore for their negligence.

11.Per contra, the learned Government Advocate appearing on behalf of the respondents submitted that the 4^th respondent was forced to adopt episiotomy as a surgical procedure in order to create space for the delivery of the baby. After the delivery, it was sutured well and the petitioner was treated by giving her antibiotics. Thereafter, there was a complication which is common in any surgical procedure and hence, the wound was re-sutured. The petitioner was also given higher antibiotics. Unfortunately, the suture once again gave way and it was diagnosed that there was complete perineal tear. Since there was an infection, the petitioner was put on antibiotics and the 3^rd respondent waited for the infection to get controlled and thereafter, to perform the operation. The husband of the petitioner was also advised that the surgery can be done at the Coimbatore Medical College Hospital. However, since the husband of the petitioner insisted for discharge and refused to heed to the advice, the 3^rd respondent had to discharge the petitioner. The learned Government Advocate therefore submitted that there was absolutely no negligence on the part of the respondents and the present Writ Petition is liable to be dismissed. The learned Government Advocate in order to substantiate his submissions, relied upon the following judgments:

1. Dr. (Mrs.) Chanda Rani Akhouri and others reported in 2022 SCC OnLine SC 481.

2. S. K. Jhunjhunwala Vs. Dhanwanti Kaur and Another reported in (2019) 2 SCC 282.

3. Kusum Sharma and Others reported in (2010) 3 SCC 480.

4. Martin F.D’souza Vs. Mohd. Ishfaq reported in (2009) 3 SCC 1.

5. Jacob Mathew Vs. State of Punjab and Another reported in (2005) 6 SCC 1.

12. This Court has carefully considered the submissions made on either side and the materials available on record.

13. This Court must bear in mind that while considering the grant of compensation in exercise of jurisdiction under Article 226 of the Constitution of India, this Court must be careful enough not to get into serious factual disputes which would require examination of witnesses and such cases can only be agitated before a Competent Civil Court. This Court must venture to decide on the questions of negligence and payment of compensation only in cases where it can be determined on the basis of the materials available before the Court and the same will not involve any appreciation of evidence.

14. This Court must also bear in mind the parameters fixed by the Apex Court while deciding the issue of negligence. In the present case, the issue of negligence has to be looked at, at two stages. The first stage was when the episiotomy procedure was performed by the 4^th respondent. The second stage is when the wound started getting infected and whether the 3^rd respondent hospital was negligent in taking care of the petitioner till 16.11.2005, when the petitioner was discharged against advice. The judgments that were relied upon by the learned Government Advocate pertains to the parameters to be applied by the Court while determining the negligence of a doctor, who performs a procedure or a surgery. The Apex Court has repeatedly held that a medical practitioner cannot be held to be negligent just because something went wrong while performing the procedure or surgery, inspite of the best efforts put in by the doctor and the doctor had exercised a reasonable degree of care, skill and knowledge as is expected under normal medical standards.

15. In the present case, the 4^th respondent had to perform episiotomy, which is a regular procedure adopted in normal vaginal deliveries. In this procedure, an incision is made on the vagina of the patient to make space at the outlet bigger for the baby to come out comfortably and to make the birth easier and in order to avert a possible brain damage for the baby. On carefully going through the medical literature, it is seen that “it is common for the perineum to tear to some extent during childbirth. Tears can also occur inside the vagina or other parts of the vulva, including the labia. Up to 9 in every 10 first time mothers who have a vaginal birth will experience some sort of tear, graze or episiotomy. It is slightly less common for mothers who have had a vaginal birth before. For most women, these tears are minor and heal quickly.”

16. It is clear from the above that the 4^th respondent was forced to adopt this procedure since the baby’s head was at the outlet and was not able to come out and the petitioner was not able to strain any further. That apart, the fetal heart rate was decreasing and in order to save the baby, the 4^th respondent applied outlet forceps after giving episiotomy, whereby, the perineum was cut down to create space for the delivery of baby. This procedure adopted by the 4^th respondent cannot be held to be negligent and she had taken the decision in the interest of the petitioner and her baby.

17. The next issue that has to be gone into is as to whether a complete perineal tear that resulted after the performance of the procedure, can be held to be negligence on the part of the 4^th respondent. On going through the medical literature, it is seen that a perineal tear is not uncommon after an episiotomy procedure. In fact, there is a possibility of

4 degrees of perineal tear.