1. THE complainant in Original Petition No. 316 of 1995 of the Idukki District Forum is the appellant. THE appeal is from the order dated 23.10.1996 of the Forum dismissing the complaint.
2. THE complainant took his minor son aged 8 years on 8.3.1995 tb the first opposite party hospital following fever and cold. THE second opposite party. Dr. Lucy Jacob examined the child and prescribed Paracetamol injection to be administered on the buttocks. THE third opposite party-Staff Nurse Mini Devassia gave the injection as per the direction of the second opposite party. Immediately the boy developed foot drop on his left leg. THE leg was paralysed. He was admitted in the hospital for treatment. Injections were given and physiotherapy was tried for two days. Finding no improvement, at the request of the complainant the boy was referred to the Medical College Hospital, Kottayam, on 10.3.1995. THE refer letter was addressed to Dr. Madhusudanan, Neurologist, Medical College Hospital. THE boy was admitted on 11.3.1995 in the Medical College Hospital and treated there till 30.3.1995. Dr. K. Surendran of the Medical College Hospital diagnosed the symptoms as Sciatic Nerve Palsy. THE boy could not walk properly even after for more than two month''s treatment. He was advised to walk using short leg calipers. Inspite of further treatment in the Medical College Hospital and thereafter under the Ayurvedic system no marked improvement was seen. THE left leg remains still disabled. THE cause of Palsy according to the complainant is because the injection needle entered into the Sciatic nerve, as a result of the negligence of the third opposite party in administering the injection. He spent about Rs. 25,000/- towards medical expense alone and further amounts are required for continuous treatment, even though the chances of complete recovery are almost completely ruled out. THE complainant demanded Rs. 4 lakhs as compensation by notice dated 16.5.1995. THE notice was replied separately by each of the opposite parties. All of them denied liability. Hence the above complaint was filed claiming compensation against the opposite parties.
The opposite parties appeared and filed separate versions denying liability. All the opposite parties contended that the Forum has no jurisdiction and the complaint is not maintainable. Further elaborate evidence and examination of medical experts and reference to medical books and journals will be necessary and hence the appropriate Forum is the regular Civil Court. In the joint version filed by the first and second opposite parties it is stated that the child was brought to the hospital at 6.30 p.m. on 8.3.1995 with high temperature. Dr Lucy Jacob examined the patient and found that the child was suffering from Follicular Tonsillitis (Acute) enlarged and conjested due to acute viral or bacterial infection. To bring down the temperature Paracetamol injection was prescribed and the third opposite party administered the injection at the upper outer quadrant of the left buttock. Soon after the injection the child found it difficult to stand on his leg. The second opposite party was informed and further treatment till 10.3.1995 was given to him and thereafter for better treatment he was referred to the famous neurologist Dr. Madhusudhanan of the Medical College Hospital, Kottayam. But the complainant took the child to another Dr. Surendran who diagnosed the symptom as Sciatic Nerve Palsy. Extreme care was taken by the opposite parties in the treatment. There is no negligence or deficiency in service on their part. The diagnosis of Dr. Surendran cannot be accepted. Sciatic Nerve Palsy can occur due to different reasons. In this case the child was brought some time before consequent on the fall from a cycle. Sciatic Nerve Palsy can be caused by hitting the buttock on any hard substance. It can also be caused by viral infection. But in any event the injection did not cause palsy as it was done by a qualified and experienced nurse and as the needle did not touch the sciatic nerve. The claim for compensation is false and baseless and the complaint should be dismissed.
The third opposite party in her version while reiterating and adopting the above contentions of the other opposite parties further submitted that no consideration was paid to her and she is an unnecessary party and there is no cause of action against her.
3. THE District Forum examined the witnesses including the complainant and marked Exts. Al to A4. THE Director of the opposite party hospital Father Jose Paliyam and the third opposite party were examined for the opposite parties and Exts. B1 to B3 marked. After perusing the evidence and hearing the arguments the District Forum dismissed the complaint on the ground that injury to sciatic nerve is possible for several reasons and in the present case the injury cannot be pinned down to the injection and the appearance of the external symptoms may not appear immediately and the complainant had failed to prove that the disability was caused due to injection.
Aggrieved by the above order dated 23.10.1996, the complainant has come in appeal. 7 We issued notice to the opposite parties. Opposite parties 1 and 2 appeared through Counsel. An elaborate argument note was also filed. Notice issued to the third opposite party was returned unserved with the endorsement that the addressee left Karuna Hospital and the present address is not known. 8. Apart from other contentions it was stressed before us that the third opposite party is an unqualified nurse who is not competent to administer the deep intra muscular injection. It was contended that the District Forum failed to consider material evidence, namely the certificate issued by the Registrar, Kerala Nurses and Midwifes Council, Thiruvananthapuram stating that the institution which granted certificate to the third opposite party is not a recognised institution by the Council. The relevant decision cited was also not considered by the District Forum. The foot drop of the child occurred immediately on the administration of the injection and the natural presumption that sciatic nerve palsy is there result of the injection has been missed by the Forum. 9. We anxiously went through the documents produced on both sides and the oral evidence of all the witnesses and the argument notes submitted by the parties before the Forum and before us. 10. It is admitted by both parties that the child was brought to the first opposite party hospital at 6.30 p.m. by the complainant, his father, with fever and symptoms of Tonsillitis, that the second opposite party examined the child and prescribed Paracetamol injection and the third opposite party administered the injection at the left buttock and immediately thereafter the child had foot drop of the left foot. The child could not walk and he was admitted as an in patient and treated in the hospital for two more days by administering injections and medicines and also physiotherapy. It is also admitted that the child was referred to Dr. Madhusudhanan of the Medical College, Kottayam. According to the complainant as per the direction of Dr. Madhusudhanan, the child was treated by Dr. Surendran in two spells. Thereafter the child was taken for Ayurvedic treatment and even now the child has not fully recovered and he has to use calipers. As against this the contention of the opposite parties seems to be that the foot drop might be after effect of a fall from a cycle some months earlier or due to the viral fever affecting the sciatic nerve. They also contended that instead of the child being taken to Dr. Madhusudhanan, he was taken to Dr. Surendran, disregarding their instructions. 11. Ext. A10 is the copy of the legal notice dated 16.5.1995 issued by the complainant to the appellants. In the reply Ext. A12, the second opposite party Dr. Lucy Jacob admits that immediately on administering the injection the boy had a foot drop on the left side. She denies having given the injection under her direct supervision. It is admitted that the injection was given by the third opposite party. Second opposite party says that it was not possible for any body to see the needle piercing the sciatic nerve. Accidental trauma to the sciatic nerve during the deep intra muscular injection, though there is a possibility for the weakness of the left leg of the boy after the injection, the sequel of the disease process cannot be ruled out. According to her, usually injections like this cause rarely accidental trauma to the sciatic nerve as the procedure of intra muscular injection itself is a blind procedure. As this is an accepted complication it is not fair on the part of the complainant to attribute carelessness and negligence on her part as she prescribed the injection in good faith. In the reply notice of the first opposite party, namely, Ext. A11, it is evident that the staff nurse of sufficient experience gave the injection but unfortunately the boy experienced some difficulty to walk after the injection. If the injection has caused any damage to the sciatic nerve it is quite accidental and not due to any negligence or carelessness on the part of the staff nurse who administered the injection or the paediatrician who prescribed it. 12. The third opposite party did not send any reply as according to her she had left the employment and had joined a Hospital in Andhra Pradesh. Though all the opposite parties would deny that she was asked to leave because of this incident one circumstance is telling. It is soon after the lawyer''s notice that she left the employment in the first opposite party hospital i.e., on 6.6.1995. 13. The complainant examined Dr. K.S. Sasidharan and Dr. N.K. Surendran, two independent witnesses. Dr. Sasidharan is PW 1. He swears that he has seen the reference letter issued from 1st opposite party hospital in which it is noted "immediately after receiving injection Paracetamol 1 cc. Intra muscular, Ieft buttock, on 8.3.1995, the child developed left foot drop". He was asked - "Regional Matter Ommitted." He answers, "injection x x x x". The witness also says that he saw the discharge card from the Medical College Hospital in which it is noted Sciatic Nerve Palsy. He also speaks about the present condition of the child as having sciatic nerve palsy of the left side and the possibility of cure is very remote. In cross-examination he confirms- "Regional Matter Ommitted." His evidence was attacked by the opposite parties on the ground that he was a classmate of the complainant. 14. PW 2 is Dr. Surendran who treated the child at the Medical College Hospital. He is the Associate Professor in Physical Medicine. He says that the child was referred to him by Dr. Madhusudhanan. His diagnosis is that the child was suffering from sciatic nerve injury. His evidence shows that the child was treated as an inpatient from 11.5.1995 to 30.3.1995. His detailed check up show features of sciatic nerve palsy of left side. He says that physiotherapy was given to the patient again from 20.4.1995 to 9.5.1995. 15. PW 3 is the complainant who speaks in terms of the complaint. He says that the second opposite party, namely Dr. Lucy Jacob said at the time of the incident that third opposite party is not a qualified nurse- "Regional Matter Ommitted." The witness further says- "Regional Matter Ommitted." He also says about the treatment given to the child later and the condition of the child. He also says that Rs. 200 /- was spent in the first opposite party hospital for the injection and medicines. 16. DW 1 is Father Jose Paliyam, the Director of the first opposite party hospital. It is in evidence that he became the Director of the Hospital only very recently and he was not in the hospital during the time of the occurrence. He has no medical qualification. He says that third opposite party had undergone one year Diploma Course in nursing. 17. DW 2 is the third opposite party, the nurse, who administered injection on the child. She also confirms that soon after the injection the left leg of the child developed pains and weakness and the child could not walk. She admits that the injection was given in the absence of the doctor. She says that the child was usually taken to the hospital for treatment of fever and on an earlier occasion he was brought consequent on a fall from cycle. The attempt is to prove that the sciatic nerve palsy may be the result of that fall. In cross examination she had to admit that there is no record to show that the boy was brought into the hospital for treatment after a fall from the cycle. She further admits that she is not a nurse registered under the Nursing Council. To a direct question namely- "Nurses and Midwives Council (x x x) register- "Regional Matter Ommitted." Her answer is "x x x x." In this connection it is pertinent to note that the letter dated 16.10.1996, issued by the Registrar, Kerala Nurses and Midwives Council, Red Cross Road, Thiruvananthapuram, affirms that the Diploma in Nursing issued by the Holy Family School of Technology Ettumannoor, is not recognised by the Kerala Nurses and Midwives Council. Hence it is evident that the third opposite party had not the required qualification to administer the injection. We have to conclude that her conduct amounted to an actionable negligence for which the first opposite party hospital is vicariously liable. 18. In a recent decision reported in II (1997) CPJ 98 (NC) Harjot Ahluwalia (Minor) through his parents v. M/s. Spring Meadows Hospital and Others the National Commission held that the hospital is responsible by the acts of its employees and so negligence can be attributed to the functionaries and Authorities of the hospital and the hospital is liable for the consequences. The facts are almost similar to the present case and the principle laid down there is squarely applicable to the present case also. In the reported case an unqualified nurse gave intravenous injection in the absence of a Resident Doctor. The child immediately collapsed and went into cardiac arrest. Further it was found that the nurse mistakenly noted the name of the medicine and asked the minor''s father to purchase it. He brought the medicine and gave it to the Nurse who injected the medicine intravenously and consequently the mishap occurred. The National Commission observed that there was a clear lapse on her part, she was otherwise duty bound to give the intravenous injection under the direct control and supervision of the Resident Doctor. 19. The above discussion will lead us to the conclusion that the minor had suffered on account of negligence of the third opposite party who was an employee of the hospital. Hence we hold that the first opposite party hospital is liable to pay damages. 20. The next question is regarding the amount of compensation to which the complainant is entitled. In the lawyer''s notice Rs. 4 lakhs is claimed as damages. In his evidence the complainant says that he had spent Rs. 50,000/- fort the treatment of the child and further treatment is required and inspite of it the chance of full recovery is meagre. Considering all the circumstances we feel that an amount of Rs. One Lakh will be reasonable compensation and we award the same. The first opposite party is directed to deposit the amount of Rs. One Lakh in the name of the child in a Scheduled Bank as a fixed deposit. The father who is the natural guardian of the boy is permitted to draw interest on the deposit and utilise the same for the education and future treatment of the child. The child will be eligible to withdraw the amount on his attaining majority. In addition to this the complainant will be entitled to a further sum of Rs. 5,000/- towards treatment expenses and compensation for mental agony. Time for deposit one month, from date of this order. The appellant is also entitled to costs of the proceedings before us. We fix the same as Rs. 1,000/-. The appeal is allowed as above. Appeal allowed.
