KEWAL KRISHAN TALWAR Vs. NITIN PRAKASH MALL

JUDGEMENT

(1.) The present compliant has been filed by the father of the deceased Sumit Talwar aged 25 years. The case of the complainant is that his son was suffering with Swine Flu. On 3rd December, 2009 and he took him to Ram Manohar Lohia Hospital in Swine Flu emergency and an emergency card No.E/182585/2009 dated 3.12.2009 at 11.14 am. was issued to him. Before he was being referred to the doctor his temperature was recorded and the test for SPO Level 2 was done it was found at the level 83% and his fever at 100 Fahrenheit. Despite that he was not treated properly for his disease i.e. N1H1 Swine Flu. He was informed that he was suffering from cough and cold and simple treatment was given to him and he was asked to go to home. The complainant gave those medicines as prescribed by opposite party No.1 Doctor to his son and also steam at night as prescribed. However, in the morning of 4th December, 2009 i.e. intervening night of 3rd December, 2009 and 4th December, 2009, his son complained of the breathlessness in his chest and his condition also was deteriorating. So he immediately took him to Balaji Action Medical Institute, FC-34, A-4, Paschim Vihar New Delhi which was the nearest hospital to his house. He reached there at about 11.00 am and his son was taken to the emergency and his SPO Level 2 was found at 67% and the oxygen mask was put on him and it was informed that SPO Level 2 was not increasing even with oxygen mask and that since no bed was available in the hospital, his son was not admitted for treatment. His request for providing an ambulance with oxygen cylinder for shifting his son to other hospital was not exceeded to. Thereafter, his son was taken to ICU and was kept at ventilator. He was also told that the patient could not be shifted in this condition to other hospital or he would die on the way. He was given treatment for Pneumonia and at 10.00 pm he was informed that treatment for Pneumonia was not working. The complainant told the doctors to treat his son for H1N1 Swine Flu. The blood test for H1N1 was done. Medicine Tamiflu was not available in the hospital and the complainant could not find it in any medical store. However, he could manage to get the medicine Eluvir and if given to his son. When the report of the blood test was received on 5th December, 2009 at about 9.00 pm, it was confirmed that his son was suffering from Swine Flu. He was advised to shift his son to Government approved Higher Centre or Isolated Ward since the hospital Balaji was not having any treatment for Swine Flu. He shifted his son to Dr. Ambedkar Hospital on 6th December, 2009 as he could not get any bed at Government approved hospital at night despite his best efforts. After reaching to Dr. B.R. Ambedkar Hospital, the Doctors examined his son for about half an hour and the doctors declared his son as dead. The complainant sent a written complaint to Health Ministry, Delhi Government and its copy to Ram Manohar Lohia Hospital. After perusing the complaint of the complainant, Delhi Medical Council vide order No.DMC/DC/F.14/2Comp. 648/2011/118398 dated 15.2.2011 concluded that there was an error on the part of opposite party No.1- Doctor. Since opposite party No.1 was working under the supervision and control of opposite parties No.2 and 3, therefore, all the opposite parties were jointly and severally liable to compensate the complainant for the carelessness and negligence on the part of opposite party No.1. It is submitted that deceased was only 24 years of age and was employed in Voltas Ltd. at a monthly salary of more than Rs.50,000/- per month. His life expectancy was till 60 years. During this period his salary also would be increased and he would have also reached to the status of Area Service Manager since he was a hard working boy. The complainant and his family have suffered a heavy shock due to his death for which opposite parties are responsible. It is submitted that despite the fact that SPO Level 2 was 83%, he was prescribed the medicine for common cough and cold and he was not admitted in the hospital despite the fact that the patient was brought in emergency meant to swine flu cases. It is submitted that had he been provided proper treatment at Ram Manohar Lohia Hospital by opposite party No.1 on the date he reported therein his son would not have died. It is submitted that the complainants be compensated for their loss. Pursuant to the directions of this Commission dated 25.8.2011 the complainant had calculated the compensation following the formula given in Sarla Verma and Ors vs Delhi Transport Corp.& Anr 2009 (6) SCC 121 case by Hon'ble Supreme Court and had calculated the compensation to the tune of Rs.1,15,12,200/-.

(2.) Opposite parties were served. Opposite party No.1 did not attend the proceedings and was proceeded ex-parte. Opposite party Nos. 2 and 3 had filed their joint written version. The plea taken in the written version is that present complaint is not maintainable since the services had been provided by the opposite parties free of cost. This plea has not been pressed during the course of final arguments. It is submitted that the argument was based on finding of Hon'ble Supreme Court in Indian Medical Association vs. V.P. Shanta and Ors. AIR 1996 SC 550 and that is no more a valid judgment as it stands modified/overruled. It is further submitted that as per Delhi Medical Council report dated 15.2.2011, it is a is evident that there was no element of negligence on the part of opposite party No.1 but it was a case of error of judgment on his part. It is further submitted that the patient died because he was taken to a hospital i.e. Balaji Hospital which did not have the facility for treatment of H1N1 Swine Flu. It is further submitted that the patient had complained of fever with chills, cough with expectoration and body ache. He had no history of breathlessness, chest pain, hemoptysis, dizziness etc. as per the declaration form filled by the deceased. After clinical examination, the deceased was categorized in Category 'A' patients for suspected H1N1 case. It is submitted that as per Ministry of Health and Family Welfare Government of India guidelines category 'A' patients do not require H1N1 testing of Oseltamivir. The deceased was advised symptomatic treatment. The deceased was asked to go to the nurse for temperature and oxygen saturation measurement and report back for further action. However, as stated by duty Dr. Nitin Prakash Mall who was on duty that time, the deceased did not return back to him after measurement of temperature and oxygen saturation by the nurse and went back to home. It is further submitted that the complainant, being father of the deceased did not fulfil his responsibilities properly as he took the deceased back to home. It is submitted that it is due to the carelessness of the deceased that such an incident had happened. It is further submitted that on the next day i.e. on 4th December, 2009 i.e. after 24 hrs., instead of bringing the patient/deceased to opposite party No.2 and 3 for review, he was taken to some other hospital which did not even have the facility of treatment of H1N1 Swine Flu and he should have been treated there for H1N1 Swine Flu instead of treatment for Pneumonia. It is submitted that when the patient was diagnosed H1N1, it was the duty of the Balaji Hospital to send the patient alongwith an equipped ambulance to the hospital having facility of H1N1 Swine Flu treatment. On these contentions, it is submitted that the complaint is devoid of merit and deserves to be dismissed.

(3.) The complainant filed the rejoinder wherein it has reiterated its contentions in the complaint and denied as incorrect all the contentions in the written version.