V. Krishnakumar Vs. State of Tamil Nadu & Ors.
[Civil Appeal No. 8065 of 2009]
[Civil Appeal No. 5402 of 2010]
S. A. BOBDE, J.
1. 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 opini
