Kamla Devi vs Union Of India & Ors.
2015 Latest Caselaw 972 Del

          *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                    Date of decision: 3rd February, 2015

+                              LPA 55/2015

       KAMLA DEVI                                          .... Appellant
                         Through:     Mr. Mukesh M. Goel, Adv.

                               Versus
       UNION OF INDIA & ORS.                          ..... Respondents
                     Through:         Ms. Purnima Maheshwari, Adv. for
                                      R-2 to 4.
CORAM:-
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J.

1. This intra court appeal impugns the order dated 20 th November, 2014

of this Court of dismissal of W.P.(C) No.5605/2012 filed by the appellant

(inter alia claiming compensation for the death of her son) on the ground of

the same entailing disputed questions of fact and, giving liberty to the

appellant to take appropriate proceedings in accordance with law.

2. We have perused the appeal paper book and have heard the counsel

for the appellant.

3. The counsel for the appellant has argued that merely because some

facts were disputed, was no ground for the learned Single Judge to dismiss

the writ petition and the learned Single Judge ought to have at least directed

a Medical Board to be constituted to unearth the reason for the death of the

16 years old son of the appellant.

4. The cause pleaded by the appellant for claiming compensation was, (i)

that her said son, since the year 2003, from time to time suffered from severe

headache and was under treatment of the respondent No.6 All India Institute

of Medical Sciences (AIIMS); (ii) however the angiography needed to be

done was done after a long delay of four years, only on 19th April, 2008; (iii)

that he was thereafter advised to undergo interventional procedure at a cost

of Rs.1,10,000/- towards consumables; (iv) that though the appellant applied

for financial assistance but the same was sanctioned after a delay of nearly

one year; (v) however thereafter also the interventional procedure was not

done owing to lack of bed; (vi) that in the evening of 3 rd February, 2012 the

said son of the appellant again complained of severe headache, the appellant

took him to respondent no.4 Lal Bahadur Shastri Hospital which, owing to

lack of facilities therein, advised the appellant to go to a private hospital;

(vii) that after much persuasion, the appellant was provided an ambulance to

take her son to AIIMS; (viii) that AIIMS however refused to admit on the

ground of non-availability of bed; (ix) that the appellant thus took her son to

respondent no.5 Safdarjung Hospital where he was admitted but died early

next morning.

5. The writ petition was entertained.

6. Safdarjung Hospital in its counter affidavit pleaded that the son of the

appellant was in a serious condition at the time when the said Hospital was

approached; that he was suffering from Intracranial Bleed; that in fact he had

come to the Safdarjung Hospital on Ambu bag assisted ventilation; that he

was given adequate treatment and the prognosis was also explained to the

relatives.

7. AIIMS in its counter affidavit pleaded, (a) that MRI of the son of the

appellant was done at Maulana Azad Medical College where he was under

treatment on 19th August, 2003 and whereafter he was referred to Lok Nayak

Jai Prakash Hospital and thereafter to AIIMS; (b) that owing to lack of beds,

further investigation could not immediately be carried out on 25 th August,

2003; (c) that the appellant or his son did not approach AIIMS till 19 th April,

2008 when the treatment of the child was started and on 28th April, 2008

angiography was done; (d) that an interventional procedure was advised and

the cost of consumables wherein was Rs.1,10,000/-; a sum of Rs.1 lakh was

got arranged by AIIMS out of the rotating / periodic National Illness

Assistance Fund; (e) however the appellant or her son thereafter again for

about one year did not approach; (f) that in the meanwhile, the sum of Rs.1

lakh was transferred to the account of the son of the appellant in AIIMS on

12th August, 2009; (g) that the appellant or her son thereafter approached

AIIMS only in January, 2010 when treatment was provided; (h) that

thereafter the child was brought on 3rd February, 2012 only in the emergency

ward where he could not be admitted due to non-availability of bed; (i) that

the present is not a case of medical negligence.

8. In the aforesaid state of pleadings, we do not find any error in the

reasoning of the learned Single Judge that the matter indeed involved

disputed questions of fact which could not have been adjudicated in writ

jurisdiction and are best left to be adjudicated in appropriate jurisdiction

where proper enquiry with respect thereto can be made. Whether, as a

matter of fact, there was negligence on the part of the respondents or not

cannot be determined in writ proceedings under Article 226 of the

Constitution. These are matters of evidence which, in fact, can be resolved

only on the basis of material which is produced in the course of the trial of a

suit. Where a claim intrinsically depends upon proof of an act of medical

negligence, such a claim cannot be determined in exercise of a writ

jurisdiction. Negligence when alleged against any person is a question of

fact which can be decided by oral and documentary evidence and the Court

under writ jurisdiction cannot decide such questions of fact. Lord Denning in

Hucks Vs. Cole (1968) 118 N.L.J. 469 observed that a charge of

professional negligence against a medical man is serious and has far more

serious consequences affecting his professional status and reputation and

thus stands on a different footing to a charge of negligence against the driver

of a motorcar.

9. Supreme Court in Tamil Nadu Electricity Board Vs. Sumathi (2000)

4 SCC 543 held that in matter of tortuous liability, the negligence of

instrumentality or servant of State involving disputed questions fact coupled

with unequivocal denial of liability, the remedy under Article 226 may not

be proper unless there is negligence on the face of it. In the present case,

though the son of the appellant was refused admission to AIIMS on the

ground of non availability of bed but was admitted to Safdarjung Hospital

across the road from AIIMS, from where he was admitted and treated though

unfortunately unsuccessfully. Thus it cannot be said that there was

negligence on the face in refusing treatment. Certainly more than one

Government Hospital situated in close vicinity can plan and manage the

admission amongst themselves and merely because one refuses admission

for lack of bed, would not be negligence on the face when the other admits

the patient. The question whether admission if provided in AIIMS could

have saved the son of the appellant is a question of fact which will have to

be proved. This Court cannot make a roving inquiry in the absence of any

definite material regarding negligence.

10. It is for such reasons only that the Supreme Court in Martin F.

D'souza Vs. Mohd. Ishfaq (2009) 3 SCC 1 held that in a case of medical

negligence, ordinarily the consumer forum or the criminal court should first

refer the matter to a competent doctor or a committee of doctors and only

when there is prima facie case of medical negligence, notice to the doctor or

the hospital concerned should be issued. Mention in this context may also be

made of Neelu Sarin Vs. UOI (1991) Supp. 1 SCC 300 where the Supreme

Court turned down a petition under Article 32 of the Constitution claiming

compensation on the ground of doctor's alleged negligence for the reason

that the basic facts constituting negligence were disputed and it necessitated

an investigation into the disputed questions of fact and the said exercise

could not be undertaken in a writ petition.

11. It cannot be lost sight of that this Court has to do justice to both the

parties. Entertaining writ petitions against the State and its instrumentalities

in matters of compensation for negligence even where the same entail

disputed questions of fact would create a mistaken impression of doctors and

hospitals as easy targets for the dissatisfied patients and against which the

Supreme Court sounded caution in Indian Medical Association Vs. V.P.

Shantha (1995) 6 SCC 651.

12. In the aforesaid facts, we are also unable to appreciate the contention

of the appellant regarding constitution of a Medical Board.

13. Though the counsel for the appellant also argued that at least

compensation for refusal of admission by AIIMS, under whose treatment the

son of the appellant was, ought to have been granted but in the light of the

defence of AIIMS that it was the appellant herself who had delayed the

treatment of her son inspite of having been rendered advise with respect

thereto long ago, we are of the opinion that the said aspect also needs to be

adjudicated in an appropriate fact finding fora. We cannot also lose sight of

the fact that treatments, for which a bed is required, cannot be meted out, if

all the beds in the hospital are occupied. We are a country with vast

population and scarce medical resources. The Courts would not be right in,

as a matter of routine, commencing investigations into the conduct of

Doctors, particularly of public hospitals, most of whom, despite various

constraints, are rendering yeoman service to sea of humanity approaching

such hospitals. Our Courts (see Jacob Mathew Vs. State of Punjab (2005) 6

SCC 1) have adopted the test of standard of care required of professional

men generally and medical practitioners in particular, as laid down in Bolam

Vs. Friern Hospital Management Committee (1957) 2 All ER 118 and held

that the standard of care is judged in the light of knowledge available at the

time of the incident and not at the date of trial and that when charge of

negligence arises out of failure to use some particular equipment, the charge

would fail if the equipment was not generally available at that point of time

on which it is suggested as should have been used. It was further held that

many incidents involve a contribution from more than one person and the

tendency is to blame the last identifiable element in the chain of causation,

the person holding the "smoking gun". From the pleadings, we do not find

any case to commence any such investigation into the conduct of any

Doctor, at least in this jurisdiction. In Dr. C.P. Sreekumar Vs. S.

Ramanujan (2009) 7 SCC 130 it was held that too much suspicion about the

negligence of attending Doctors and frequent interference by Courts would

be a very dangerous proposition as it would prevent Doctors from taking

decisions which could result in complications and in this situation the patient

would be the ultimate sufferer. A doctor has to take snap decisions and if the

medical profession is hemmed by threat of civil and criminal action, the

consequence will be loss to the patients. The Supreme Court thus cautioned

Courts that setting in motion law against medical profession should be done

cautiously and on the basis of reasonably sure grounds.

14. We therefore concur with the view of the learned Single Judge.

However we find that the limitation available to the appellant for

approaching alternate fora may have already expired and / or may be soon

expiring. The liberty given by the learned Single Judge to the appellant to

approach the appropriate fora would thus be meaningless. Since the

appellant had filed the writ petition, from which this appeal arises, soon after

the cause of action had accrued and since the writ petition was entertained

and remained pending, we are of the view that a case for allowing such

appropriate proceedings, if instituted by the appellant, to be adjudicated on

merits and being not defeated by the law of limitation, is made out.

Accordingly, while dismissing the appeal, it is clarified that if appropriate

proceedings, liberty wherefor has been given by the learned Single Judge to

the appellant, are instituted within three months from today, the same shall

be entertained and decided on merits and be not knocked out as barred by

time.

No costs.

RAJIV SAHAI ENDLAW, J.

CHIEF JUSTICE FEBRUARY 03, 2015 bs