Sunday, 28 February 2021

Whether State is liable to Compensate if there is any Unforeseen Death Or Injury In Govt Hospital Even If There Is No Medical Negligence?

 When a patient is admitted in a government

hospital for treatment and he/she suffers any injury or

death which is not anticipated to occur in the normal

course of events, even in the absence of medical

negligence, the government is obliged to disburse exgratia

to the affected party. In the case on hand,

liability has to be fastened on the government. Since

the institution happens to be the Government institution,

the Government of Tamil Nadu will have to necessarily

take consequence. My attention is drawn to G.O(Ms)No.395

dated 04.09.2018 whereby a corpus fund has been created

by the Tamil Nadu Government. It appears that every

Government doctor contributes certain sum of money

towards this corpus fund and whenever compensation is

directed to be paid by the courts, amount will be drawn

from this fund and paid. Considering the overall

circumstances, I am of the view that the petitioner

deserves to be paid a sum of Rs.5.00 lakhs as

compensation. The said amount shall be paid by the

department/Government from the said fund. Such payment

will be made to the petitioner within a period of eight

weeks from the date of receipt of copy of this order.

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 01.02.2021

CORAM

 MR.JUSTICE G.R.SWAMINATHAN

WP(MD)No.2721 of 2017

Tamil Selvi   Vs. The State of Tamil Nadu,

Dated:01.02.2021

Heard the learned counsel for the petitioner, the

learned Additional Government Pleader for the official

respondents and the learned counsel for the private

respondents.

2.The petitioner's daughter Sangeetha aged about

eight years was suffering from tonsils. She was admitted

in Government Hospital, Aruppukottai on 07.04.2016 for

treatment. The child was examined and it was suggested

that she must undergo surgery. She was an inpatient on

13.04.2016 for this purpose. For preparing the child for

surgery, anesthesia was administered by the 9th respondent

Anesthetist. Unfortunately, the child developed some

complications and she was shifted to Rajaji Government

Hospital, Madurai for further treatment. The child went

into coma and eventually passed away on 05.07.2016.

Alleging that the death of the child was purely due to

medical negligence on the part of the private

respondents, the petitioner has filed this writ petition

demanding payment of compensation.


3.The prayer made in the writ petition is opposed

both by the official respondents as well as the private

respondents. They have also filed their counter

affidavits.

4.I carefully considered the rival contentions and

went through the materials on record. There is no dispute

that the petitioner's child was admitted only for the

purpose of tonsil surgery and nothing else. It is also

not in dispute that even before the surgery could be

performed on the child, the child developed complications

following the administration of anesthesia. The learned

counsel for the petitioner would strongly allege that but

for the negligence on the part of the anesthetist and

other doctors, the child would not have died.

5.The issue of medical negligence requires a

factual determination. It is seen that following the

complaint lodged by the petitioner, an enquiry was in

fact conducted. The report was submitted by four member

enquiry committee on 17.06.2016. It clearly states that

there was no medical negligence on the part of the

doctors. Then, the question arises as to how the death

had occurred. It appears that the child was administered

a drug known as Propofol.

6.The learned counsel for the private respondents

has made available the literature on the subject. It is

seen therefrom that the propofol is not an intrinsically

dangerous drug and it is very much administered to

children above 3 years of age. It states however that

there may be implications for children with mitochondrial

diseases. There is nothing on record to indicate that

the deceased child had the said decease and that it was

omitted to be noticed by the doctors in question.

7.There are always instances when a drug does not

accord with the body of the patient and that leads to

unfortunate complications. The case on hand appears to

be one such. Therefore, I do not find any ground to hold

that the respondent anesthetists have committed any act

of medical negligence.

8.Even though I may reject the allegation of the

petitioner as regards medical negligence, still, there is

no answer to the question regarding compensation. The

petitioner belongs to Hindu Pallar community. It is a

notified scheduled caste community. Her child was

admitted in a Government Hospital for tonsil surgery.

The learned counsel for the respondents would state that

such surgeries are regularly performed in Government

Hospital, Aruppukottai. The petitioner's child should

have been discharged after successfully conducting

surgery. But what the petitioner got was only the dead

body of her child. Neither the petitioner nor her child

was at fault. When a patient is admitted in a government

hospital for treatment and he/she suffers any injury or

death which is not anticipated to occur in the normal

course of events, even in the absence of medical

negligence, the government is obliged to disburse exgratia

to the affected party. In the case on hand,

liability has to be fastened on the government. Since

the institution happens to be the Government institution,

the Government of Tamil Nadu will have to necessarily

take consequence. My attention is drawn to G.O(Ms)No.395

dated 04.09.2018 whereby a corpus fund has been created

by the Tamil Nadu Government. It appears that every

Government doctor contributes certain sum of money

towards this corpus fund and whenever compensation is

directed to be paid by the courts, amount will be drawn

from this fund and paid. Considering the overall

circumstances, I am of the view that the petitioner

deserves to be paid a sum of Rs.5.00 lakhs as

compensation. The said amount shall be paid by the

department/Government from the said fund. Such payment

will be made to the petitioner within a period of eight

weeks from the date of receipt of copy of this order.

Since the enquiry conducted by the department itself had

exonerated the private respondents from any charge of

negligence, the question of recovering the said amount

from their salary will not arise.

9.The writ petition is allowed on these terms. No

costs.

01.02.2021


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