Dr. Anirban Chatterjee, and Nightingale Diagnostic & Medicare Centre Private Limited liable for medical negligence, directing them to jointly pay Rs. 75 lakhs in compensation to a young patient who lost her right leg due to a surgical error.
The complaint, lodged in 2017 by the patient and her father, originally sought over Rs. 20 crores in damages. The case stemmed from a surgery performed in 2015 to remove a lump from the 17-year-old patient’s right gluteal region. During the procedure, vascular embolization was carried out, but a critical error occurred when N-Butyl Cyanoacrylate Glue accidentally entered the main artery of the patient’s right leg. This resulted in a severe blockage of blood flow, leading to gangrene and ultimately, amputation. Despite being shifted to Ganga Ram Hospital in New Delhi, doctors could not salvage the limb. The patient was later declared 90% permanently disabled.
After reviewing the matter, the Commission found that the doctor and hospital had not obtained informed consent specific to the risks involved in treating Arterio-Venous Malformation (AVM). The NCDRC observed that a generic consent form was insufficient for such a complex and high-risk procedure. It stressed that the doctor had a duty to provide detailed information about potential complications and to ensure the patient’s understanding before proceeding.
In its decision, the NCDRC relied on recent Supreme Court judgments, including Neeraj Sud & Anr. v. Jaswinder Singh (Minor) & Anr. (2024 INSC 825) and M.A Biviji v. Sunita & Ors. (2023 INSC 938), to affirm that the negligence was “manifest.” The Commission also took into account the significant impact on the patient’s physical and emotional well-being, including loss of self-esteem, reduced employability, and diminished quality of life. Additionally, it acknowledged expenses incurred—Rs. 2,00,000 for surgery and Rs. 7,25,000 for a prosthetic limb, which would need periodic replacement.
Ultimately, the NCDRC held the surgeon and hospital jointly and severally liable and ordered Rs. 75 lakhs in compensation to be paid to the patient.

CIVIL APPEAL NO(S). OF 2024
(Arising out of SLP(Civil) No(s). 683-685 of 2023)
P.C. JAIN ….APPELLANT(S)
VERSUS
DR. R.P. SINGH ….RESPONDENT(S)
WITH
CIVIL APPEAL NO(S). OF 2024
(Arising out of SLP(Civil) No(s). 13511-13512 of 2023)
J U D G M E N T
Mehta, J.
1. Leave granted.
2. Brief facts relevant and essential for disposal of these appeals
which arise out of proceedings under the Consumer Protection Act,
1986 are noted hereinbelow:-
The appellant-complainant P.C. Jain, claims to have lost
vision in his left eye due to the medical negligence committed by
the respondent Dr. R.P. Singh in a surgical procedure whereupon
he instituted a Consumer Complaint No. 115 of 2005 before the
District Consumer Disputes Redressal Commission,
2
Faridabad(hereinafter being referred to as “DCDRC”). Vide order
dated 4th April, 2008, the DCDRC, Faridabad allowed the
complaint of the appellant-complainant P.C. Jain and granted him
compensation to the tune of Rs. 2 Lakhs with interest @ 12% p.a.
from the date of filing of complaint till the date of realization,
holding the respondent Dr. R.P. Singh guilty of medical negligence
in treatment of the appellant-complainant P.C. Jain.
3. The respondent Dr. R.P. Singh, challenged the order dated 4th
April, 2008 of the DCDRC, Faridabad by way of filing First Appeal
No. 1493 of 2008 before the State Consumer Disputes Redressal
Commission, Haryana(hereinafter being referred to as “SCDRC”)
which was allowed vide order dated 23rd May, 2011 observing that
since the appellant-complainant P.C. Jain was operated at New
Delhi, the DCDRC, Faridabad had no territorial jurisdiction to
entertain and decide the complaint and direct that the amount of
Rs. 2 Lakhs be refunded to the respondent Dr. R.P. Singh.
4. The appellant-complainant P.C. Jain challenged the order
dated 23rd May, 2011 passed by the SCDRC by filing a revision
before National Consumer Disputes Redressal
Commission(hereinafter being referred to as the “NCDRC”), which
3
came to be allowed by order dated 29th July, 2016 and the matter
was remanded back to SCDRC for fresh decision on merits.
5. The SCDRC, vide order dated 6th July, 2017 again allowed the
appeal filed by respondent Dr. R.P. Singh and dismissed the
Complaint No. 115 of 2005.
6. The appellant-complainant P.C. Jain challenged the order
dated 6th July, 2017 passed by the SCDRC by filing fresh Revision
Petition No. 3446 of 2017 before the NCDRC which accepted the
same vide order dated 18th May, 2022. The judgment of SCDRC
was reversed and it was held that the compensation awarded by
the DCDRC to appellant-complainant P.C. Jain to the tune of Rs.2
Lakhs was just and proper. However, the interest @ 12% was held
to be excessive and accordingly, the same was reduced to 6%. The
order passed by SCDRC was set aside.
7. The respondent Dr. R.P. Singh filed a review petition seeking
clarification of the order dated 18th May, 2022. The said review
application was taken on board and allowed ex-parte vide order
dated 22nd July, 2022 accepting the unilateral version of
respondent Dr. R.P. Singh that he had deposited an amount of
Rs.2 Lakhs on 5th September, 2008 before the SCDRC and
thereafter, vide order dated 23rd May, 2011, the deposited amount
4
was released in favour of the appellant-complainant. A
clarificatory order dated 22nd July, 2022 was accordingly issued
observing that the respondent Dr. R.P. Singh was liable to pay
interest from the date of filing of the complaint upto 5th September,
2008 only.
8. Being aggrieved by the aforesaid order, the appellantcomplainant preferred a review application No. 207 of 2022, before
the NCDRC, objecting to the ex-parte order dated 22nd July, 2022.
However, the said review application was rejected by NCDRC vide
order dated 26th September, 2022. The appellant-complainant
P.C. Jain has assailed these three orders dated 18th May, 2022,
22nd July, 2022 and 26th September, 2022 in Civil Appeals @
SLP(Civil) Nos. 683-685 of 2023 whereas the respondent Dr. R.P.
Singh has preferred Civil Appeals @ SLP(Civil) Nos.13511-13512 of
2023 challenging the orders dated 18th May, 2022 and 22nd July,
2022 passed by NCDRC.
9. We have heard learned counsel for the parties and gone
through the material available on record.
10. It is relevant to note here that the Ethics Committee of
Medical Council of India(hereinafter being referred to as ‘MCI’)
conducted an enquiry and passed an order dated 20th December,
5
2012 holding Dr. R.P. Singh to be in violation of Professional
Misconduct, Etiquette and Ethics Regulation, 2002.
11. The competent authority, i.e., the MCI vide order dated 20th
April, 2015 held the respondent Dr. R.P. Singh guilty of medical
negligence in the treatment of the appellant-complainant P.C. Jain
and affirmed the recommendation of the Ethics Committee
removing his name from the Indian Medical Register for a period
of six months.
12. On going through the pleadings of civil appeals preferred by
the respondent Dr. R.P. Singh, it becomes clear that the said order
issued by MCI was not challenged by the respondent Dr. R.P.
Singh and thus, has attained finality.
13. In the background of the aforesaid facts, the issue regarding
the respondent Dr. R.P. Singh having committed medical
negligence in treating the appellant-complainant P.C. Jain is no
longer res integra. Consequently, the order dated 18th May, 2022
whereby the revision preferred by the appellant-complainant P.C.
Jain was accepted, the order of SCDRC was reversed and the order
of the DCDRC was affirmed, does not warrant any interference in
the appeals preferred by Dr. R.P. Singh.
6
14. Now, we propose to consider the prayers made in Civil
Appeals @ SLP(Civil) No(s). 683-685 of 2023 filed by appellantcomplainant P.C. Jain.
15. The appellant-complainant P.C. Jain who is 84 years of age
as on date claims to have suffered loss of vision in the left eye owing
to the gross medical negligence committed by respondent-Dr. R.P.
Singh in a surgical procedure which was undertaken way back in
the year 2002-2003. He has been contesting this long drawn out
litigation for a rightful claim of compensation for more than 20
years. The NCDRC, while accepting the revision of the appellantcomplainant P.C. Jain, reduced the interest awarded by the
DCDRC from 12% to 6%, with a bald unreasoned observation that
the rate of interest so applied was on the higher side and, therefore,
the same was reduced to 6%.
16. The respondent Dr. R.P. Singh misrepresented to the NCDRC
that he had deposited an amount of Rs. 2 Lakhs only, which had
been paid to the appellant-complainant P.C. Jain in the year 2011.
As a matter of fact, it is the specific plea of the appellant P.C. Jain
that he has not received a single penny towards compensation for
the loss of vision suffered by him owing to the medical negligence
committed by the respondent Dr. R.P. Singh. The review petition
7
filed by Dr. R.P. Singh was allowed ex-parte by the NCDRC in a
totally cavalier fashion without putting the complainant to notice.
17. In wake of the discussion made hereinabove, we modify the
orders passed by the NCDRC and direct that the appellant P.C.
Jain shall be entitled to receive compensation of Rs. 2 Lakhs only
with interest @ 12% per annum from the respondent Dr. R.P. Singh
with effect from the date of filing of the complaint till actual
payment is made.
18. The respondent Dr. R.P. Singh shall pay the compensation as
directed above to the appellant-complainant within two months
from today failing which the interest shall stand enhanced to 15%
per annum.
19. As the respondent Dr. R.P. Singh procured the order under
review dated 22nd July, 2022 by making a false representation that
the amount of compensation had been paid to the appellantcomplainant P.C. Jain, we impose a cost of Rs. 50,000/- upon the
respondent Dr. R.P. Singh which upon realisation, shall be paid to
the appellant-complainant P.C. Jain.
20. As a consequence of the above discussion, the Civil Appeals
@ SLP(Civil) Nos. 683-685 of 2023 filed by the appellant-
8
complainant P.C. Jain stand allowed and the Civil Appeals @
SLP(Civil) Nos. 13511-13512 of 2023 filed by the respondent Dr.
R.P. Singh stand rejected.
21. Pending application(s), if any, shall stand disposed of.
.………………………………J.
(B.R. GAVAI)
……………………………….J.
(SANDEEP MEHTA)
New Delhi;
January 29, 2024.

CIVIL APPEAL NO. 10347 OF 2010
MRS. KALYANI RAJAN …. APPELLANT
VERSUS
INDRAPRASTHA APOLLO HOSPITAL
& ORS. …RESPONDENTS
J U D G M E N T
PRASHANT KUMAR MISHRA, J.
The present appeal is directed against the order passed by
the National Consumer Disputes Redressal Commission1 dated
03.08.2010 whereby the complaint filed by the appellant and
proforma respondent No. 3 under Section 2 (c)(iii) of the
Consumer Protection Act, 19862 was rejected.
1
(for short, ‘the Commission’)
2
(for short, ‘the Act’)
2
2. The complainant-appellant is the wife of the deceased
patient namely, Sankar Rajan
3
, who was 37 years old and died
on 06.11.1998 in the hospital-respondent no. 1 herein while
undergoing follow up care and treatment after a major
neurosurgery in the care of respondent nos. 1 and 2. The
deceased was under the employment of proforma respondent
no. 3 and was earning handsome annual package at the time of
his demise.
3. The deceased was suffering from Chiari Malformations
(Type II) with Hydrocephalous. The deceased consulted Dr. Ravi
Bhatia – respondent no. 2, Senior Consultant, Department of
Neurosurgery of respondent no. 1-hospital on 21.10.1998, who
advised him to get admitted to respondent no. 1-hospital where
the surgery would be performed by him. As per the advice of
respondent no. 2, the deceased got himself admitted to
respondent no. 1 on 29.10.1998. After performing preoperative medical examinations, respondent no. 2 conducted
the operation of the deceased. The deceased was thereafter
shifted to private room at about 04.15 p.m and at about 04.30
p.m, the doctors visiting the deceased were informed about
3
(for short, ‘the deceased’)
3
pain in the neck region, which seemed to have transferred
downward lower than the region where pain used to occur prior
to operation. At about 06.30 p.m. the deceased was given pain
reliever intravenously, but the pain increased along with severe
sweat spells. At about 09.15 p.m, the deceased started
suffering from severe unbearable pain. The complainantappellant called respondent no. 2 at his residential phone but
he was not available. At about 09.30 p.m. another pain killer
was intravenously given. At about 11.00 p.m. complainantappellant talked to respondent no. 2 at his residence. The
deceased had suffered heart attack around 11.00 p.m. The
deceased was declared brain dead on 31.10.1998. He was kept
on life support till his death on 06.11.1998.
4. The grievance of complainant-appellant is that the
deceased was not attended to by any doctor from neurosurgery
team who had operated the deceased after he was shifted into
the private room till 11.00 P.M. After such major surgery,
instead of shifting to a private room, the deceased should have
been shifted to the Intensive Care Unit4
.
4
(for short, ‘ICU’)
4
Findings of Commission (Impugned Order)
5. The allegation in the complaint is mainly apropos lack of
medical care from the time he was shifted to the Private room
till he suffered a cardiac arrest at around 11:00 PM. However,
the appellant herein has not been able to establish by any
cogent evidence or material on record that the heart attack
suffered by the deceased had any connection with the
operation in question or on account of lack of post-operative
care.
6. The said finding has been supported by an affidavit of
Prof. Gulshan Kumar Ahuja who was professor of neurosurgery
in AIIMS & Senior Consultant at R-1/hospital at that time and
he has opined that complications suffered by the deceased
were totally unrelated to the surgery conducted by R-2. He has
further stated that pain in the neck accompanied by symptoms
of profuse sweating and nausea cannot be a symptom of
cardiac respiratory arrest.
7. The deceased did not have any history of diabetes or
hypertension as has been stated by R-2 herein in his evidence
neither did he have any heart problem. The said pain in the
5
neck was on account of cervical operation. No material on
record to show that the deceased was in pain in any other
region of his body. The appellant’s contention apropos the
deceased sweating is not met out with in the medical records
except for once at 9PM.
8. The appellant herein drew the attention to the observation
made in Martin F. D’Souza v. Mohd. Ishfaq5
that no prescription
should ordinarily be given without actual examination and the
tendency to prescription over the phone except in acute
emergency should be avoided. These observations would not be
applicable to the said present case since the deceased had
complained about pain on the neck for which he had been
operated and medicine given by Dr. Tyagi over the phone was
only apropos pain on the neck.
9. In the facts and circumstances, no case of medical
negligence has been proved nor can it be said that the
aftercare treatment of the deceased till he suffered a cardiac
arrest was inadequate so as to hold the respondents herein
5 (2009) 3 SCC 1
6
liable for medical negligence. Principle of Res Ipsa Locutor does
not apply to the facts and circumstances of the said case.
Submissions advanced on behalf of the Appellant
apropos Medical Negligence by the Respondents:
10. Shri Nikhil Nayyar, learned senior counsel appearing for
the appellant submits that the deceased died due to cardiac
arrest, albeit, admittedly, the deceased had no cardiac
problems. He would further submit that at the time of
admission the deceased was informed that after the surgery he
would be shifted to the ICU. However, he was shifted from the
recovery room directly to a private room and not to the ICU.
11. In respect of lack of care, he submits that, Dr. Brahm
Prakash & Dr. S. Tyagi, visited the room at around 4.30 p.m.
and the deceased mentioned about pain in the neck region. The
said complaint by the deceased was dismissed as post
operative symptom. The said visit was the only visit by R-2 and
other specialists post the surgery in the private room till the
deceased lost consciousness. Since the pain was not reducing,
the Duty Doctor spoke to Dr. Tyagi around 7.15 p.m. on
telephone on the basis which Nimulid was prescribed by Dr.
7
Tyagi. Thereafter, Dr. Tyagi had a telephonic conversation with
the deceased wherein he was informed that Nimulid did give
some temporary relief, basis which he concluded that the
symptoms of pain felt by the patient were clearly normal post
operative reaction.
12. It is submitted that the patient had an episode of
Ventricular Tachycardia (‘VT’) and R-2 in his admission has
stated that VT is not his area of expertise and in such cases,
patient should have been referred to the appropriate doctor.
However, this was not done and no consultant/specialist with
the relevant expertise was available to attend to the medical
needs of the deceased.
13. Apropos the findings of the impugned order, the appellant
herein refutes the same and submits that they are contrary to
the facts on record which establishes negligence of the
respondents in the post operative care of the deceased.
14. Learned senior counsel further states that the
Commission has not appreciated that the present case reflects
clear example of negligence due to absence of care. In support
of this, he states that there was: i) complete absence of senior
8
doctor, surgeon/specialist to respond to patient’s distress call
from the time the patient was shifted to the room/ward till the
time he became unconscious and; ii) absence of investigation
of pain to diagnose the cause.
Submissions on behalf of Respondent No.1/Hospital
15. Dr. Lalit Bhasin, learned counsel appearing for respondent
no. 1 would submit that respondent no. 1 is one of the best
hospitals equipped with latest medical equipments and the
patient was looked after by Dr. Ravi Bhatia of international
repute, who was formerly Professor and Head of the NeuroSurgery and he was assisted by Dr. Brahm Prakash, senior
Neurosurgeon. It was also submitted that patient had made
excellent recovery after neurosurgery and there were no post
operative complications, therefore, he was shifted to recovery
room and thereafter to private room.
16. Learned counsel has drawn our attention to the records of
the hospital containing pre and post operative history of the
patient. Thus, according to learned counsel, there is no
negligence on the part of the hospital or the treating doctors.
9
17. Learned counsel for respondent no. 1 refutes the
contentions of the appellant and submits that in view of the
findings of the Commission and the dicta of this Court in
Bombay Hospital & Medical Research Centre v. Asha
Jaiswal and Others6
,the present appeal is liable to be
dismissed.
Submissions on behalf of Respondent-No.2/Dr. Bhatia
18. Ms. Meenakshi Arora, learned senior counsel for
respondent no. 2 adopts the submissions advanced on behalf of
respondent no. 1 apropos findings of the Commission in the
impugned order as well as the dicta of this Court in Bombay
Hospital (supra).
19. Additionally, respondent no. 2 submits that it was
explained to the appellant and the deceased that the patient
would be examined in the recovery room first and thereafter as
per standard practice followed by the hospital, all patients who
6 2021 SCC online SC 1149
10
do not show signs of complications in the Recovery Room and
have no pre-operative medical problems are shifted to their
ward/room. In case the patient develops some post-operative
complications that requires round the clock care and
observation, he/she would be transferred to the Neurology
Intensive Care Unit. Respondent no. 2 also submits that the
deceased had regained full consciousness at the time when he
had been moved from the Operation Theatre to the Recovery
Room. Also, less than half the numbers of neurosurgical
patients operated upon are moved from the OT to Recovery
Room and then to Neurosurgery ICU. In support of the same,
he has submitted data of respondent no.1/hospital apropos the
neurosurgeries conducted and number of patients transferred
to Neuro ICU thereafter.
20. Learned senior counsel further submits that Dr. Brahm
Prakash of the Neuro-Sciences Department at the R-1/hospital
met the deceased, and no complaint was made by the patient
at that time. Similarly, at about 5 p.m. he along with Dr. Tyagi
met with the deceased and examined him. The deceased at
that time complained of only a mild neck pain, which is normal
11
after an operation on the cervical (neck) region. Thereafter, he
left the hospital for his premises and submits that since the
time he left i.e., around 5,30 p.m. till the time he received a
phone call from the appellant at about 11.15 p.m. about the
condition of the deceased, he had not received any calls on his
mobile phone or his landline, nor was any message left for him
at his residence.
21. Learned senior counsel categorically refutes the
contentions of the appellant and submits that the impugned
order suffers from no infirmity warranting interference by this
Court and is liable to be accordingly dismissed.
Analysis and Findings:
22. The crucial issue to be decided is whether the respondents
have committed negligence in not providing proper postoperative medical care to the patient and, accordingly, whether
the Commission has committed any illegality while dismissing
the complaint filed by the appellant herein.
23. Concededly, the complainant has never questioned the
diagnosis and recommended surgical treatment given to him by
12
respondent no. 2-Dr. Bhatia. It is not the case of the
complainant that Dr. Bhatia was negligent in performing the
Neurosurgery. Thus, the entire case of the complainant was
about lack of proper post-operative medical care. On this
score, the allegation is that the patient should have been
shifted to ICU instead of shifting him to a private room. The
material available on the record demonstrates that as per the
standard practice, all patients who show no signs of
complications in the recovery room and have no post or preoperative complications are sent to their rooms. According to
the figures submitted by the respondents, during the months of
September to November 1998, out of 166 neurosurgeries, only
68 patients were sent to the ICU from the recovery room in the
hospital of respondent no. 1. The rest were sent back to their
wards in accordance with standard procedure. It is the stand
of respondent no. 2 that there exists no link or interconnection
between post-operative treatment/care and the cardiac arrest
suffered by the deceased. The symptoms, which emerged after
the deceased was discharged from the Operation Theatre, were
not the symptoms, which typically precede a cardiac arrest.
Since, the deceased did not have any known or identifiable
13
heart ailments, it was impossible for the respondents to have
prior knowledge that the patient may develop cardiac problem
after few hours of the successful surgery. The symptoms,
including dizziness, sweating, and pain in the neck area,
experienced by the deceased post-surgery, could not be treated
as post-surgery reactions. The patient would have been shifted
to the ICU immediately, if serious complications would have
arisen after the surgery, therefore, in the absence of
complications in the surgery or soon thereafter, the patient was
not required to be shifted to ICU and there is no negligence on
this count by either of the respondents.
24. On the issue as to when a medical officer may be held
liable for negligence, this Court in Jacob Mathew v. State of
Punjab and Another7 has observed thus:
“A professional may be held liable for
negligence on one of the two findings: either
he was not possessed of the requisite skill
which he professed to have possessed, or, he
did not exercise, with reasonable competence
in the given case, the skill which he did
possess. The standard to be applied for
judging, whether the person charged has been
negligent or not, would be that of an ordinary
competent person exercising ordinary skill in
7 (2005) 6 SCC 1
14
that profession. It is not possible for every
professional to possess the highest level of
expertise or skills in that branch which he
practices. A highly skilled professional may be
possessed of better qualities, but that cannot
be made the basis or the yardstick for judging
the performance of the professional proceeded
against on indictment of negligence.”
25. The next limb of allegation apropos negligence is that the
deceased was not attended to by any doctor from neurosurgery
team after he was shifted into the private room till 11.00 p.m.
when he suffered cardiac arrest. Material placed before this
Court including the record maintained by the hospital would
reveal that the patient was examined by Dr. Brahm Prakash, Dr.
Ravi Bhatia and Dr. Tyagi after the patient was shifted to the
private room. He had complained of pain in the neck region to
Dr. Ravi Bhatia and the patient was told that it was on account
of the operation. Pain in the neck region started increasing at
06:00 p.m. for which injection was given. When the doctor on
duty contacted Dr. Tyagi, he was instructed to give tablet
Nimulid. Except for the pain in neck region, the patient did not
complain of pain in any other part of his body. The attending
nurse called Dr. Tyagi at around 08:15 p.m. to inform him that
the patient is complaining about the problem of sweating, pain
15
and dizziness which, according to Dr. Tyagi, were normal post
operative reactions. Dr. Tyagi spoke to the complainant and the
patient on which the patient informed him that he was better.
At 09:30 p.m. pain killer was given and around 11:00 p.m., the
patient lost consciousness due to severe cardiac arrest. Dr.
Ravi Bhatia was informed, and he immediately came to the
hospital. Thereafter, all required steps were taken as revealed
from the hospital record. There is no evidence put forth by the
complainant to establish that heart attack suffered by the
patient had any connection with the operation in question or
that it was on account of negligent post operative care.
26. The respondents have filed affidavit of Prof. Gulshan
Kumar Ahuja, professor of neurosurgery in AIIMS and Senior
Consultant in Neurology at Respondent No.1-Hospital. After
going through the record and CT Scan dated 04.11.1998, Dr.
Ahuja opined that the record did not show any abnormality at
the operated site and the complications suffered by the patient
were totally unrelated to the surgery conducted by Respondent
No. 2. While answering the interrogatories, Dr. Ahuja stated
16
that pain in the neck along with sweating and nausea are not
the symptoms of cardiac respiratory arrest.
27. It is significant to notice that the patient did not have any
history of diabetes or hypertension or any cardiac problem.
Therefore, it was difficult for treating doctors including the duty
doctor or the hospital to assume that the patient may suffer
cardiac arrest and moreover, the patient had also not
complained of pain in any other part of the body except neck
region. As per the medical record, the patient complained of
sweating only around 09:00 p.m. on which Dr. Tyagi spoke to
the patient.
28. In the matter of Bombay Hospital (supra) this Court has
elaborately considered previous judgments on the subject to
hold thus:
“16.………..It was argued that the professional
competence of Doctor has not been doubted even by
the Commission but two factors have been taken
against the Doctor for holding him negligent; first, that
he did not visit the patient soon after the surgery till
9/9.30 a.m. on the next day to verify the blood flow
after the surgery, and second, he did not visit the
patient from 29.4.1998 to 9.5.1998 when he was in
Mumbai and from 9.5.1998 to 7.6.1998 when he went
abroad for attending medical conferences.
17
XXX
23 ……… There is no proof that there was any
negligence in performing the surgery on 23.4.1998 or
in the process of re-exploration on 24.4.1998. The
allegation is of failure of the Doctor to take the followup action after surgery on 23.4.1998, a delayed
decision to amputate the leg subsequent to reexploration on 24.4.1998, and the alleged undue
foreign visit of the Doctor.
29. In Martin F. D’Souza v. Mohd. Ishfaq(2009) 3 SCC
1, this court observed that the doctor cannot be held
liable for medical negligence by applying the doctrine
of res ipsa loquitur for the reason that a patient has
not favourably responded to a treatment given by a
doctor or a surgery has failed. There is a tendency to
blame the doctor when a patient dies or suffers some
mishap. This is an intolerant conduct of the family
members to not accept the death in such cases. The
increased cases of manhandling of medical
professionals who worked day and night without their
comfort has been very well seen in this pandemic. This
Court held as under:
“40. Simply because a patient has not
favourably responded to a treatment given by
a doctor or a surgery has failed, the doctor
cannot be held straightaway liable for medical
negligence by applying the doctrine of res ipsa
loquitur. No sensible professional would
intentionally commit an act or omission which
would result in harm or injury to the patient
since the professional reputation of the
professional would be at stake. A single failure
may cost him dear in his lapse.
18
xxx xxx xxx
42. When a patient dies or suffers some
mishap, there is a tendency to blame the
doctor for this. Things have gone wrong and,
therefore, somebody must be punished for it.
However, it is well known that even the best
professionals, what to say of the average
professional, sometimes have failures. A
lawyer cannot win every case in his
professional career but surely he cannot be
penalised for losing a case provided he
appeared in it and made his submissions.”

XXX
32. In C.P. Sreekumar (Dr.), MS (Ortho) v. S.
Ramanujam[(2009) 7 SCC 130], this Court held that
the Commission ought not to presume that the
allegations in the complaint are inviolable truth even
though they remained unsupported by any evidence.
This Court held as under:
“37. We find from a reading of the order of
the Commission that it proceeded on the
basis that whatever had been alleged in the
complaint by the respondent was in fact the
inviolable truth even though it remained
unsupported by any evidence. As already
observed in Jacob Mathew case [(2005) 6
SCC 1] the onus to prove medical negligence
lies largely on the claimant and that this onus
can be discharged by leading cogent
evidence. A mere averment in a complaint
which is denied by the other side can, by no
stretch of imagination, be said to be evidence
by which the case of the complainant can be
said to be proved. It is the obligation of the
19
complainant to provide the facta probanda as
well as the facta probantia.”
33. In another judgment reported as Kusum
Sharma v. Batra Hospital and Medical Research
Centre[(2010) 3 SCC 480], a complaint was filed
attributing medical negligence to a doctor who
performed the surgery but while performing surgery,
the tumour was found to be malignant. The patient
died later on after prolonged treatment in different
hospitals. This Court held as under:
“47. Medical science has conferred great
benefits on mankind, but these benefits are
attended by considerable risks. Every surgical
operation is attended by risks. We cannot
take the benefits without taking risks. Every
advancement in technique is also attended by
risks.
xxx xxx xxx
72. The ratio of Bolam case [[1957] 1 WLR
582 : (1957) 2 All ER 118] is that it is enough
for the defendant to show that the standard
of care and the skill attained was that of the
ordinary competent medical practitioner
exercising an ordinary degree of professional
skill. The fact that the respondent charged
with negligence acted in accordance with the
general and approved practice is enough to
clear him of the charge. Two things are
pertinent to be noted. Firstly, the standard of
care, when assessing the practice as adopted,
is judged in the light of knowledge available
at the time (of the incident), and not at the
date of trial. Secondly, when the charge of
negligence arises out of failure to use some
particular equipment, the charge would fail if
20
the equipment was not generally available at
that point of time on which it is suggested as
should have been used.
xxx xxx xxx
78. It is a matter of common knowledge that
after happening of some unfortunate event,
there is a marked tendency to look for a
human factor to blame for an untoward
event, a tendency which is closely linked with
the desire to punish. Things have gone wrong
and, therefore, somebody must be found to
answer for it. A professional deserves total
protection. The Penal Code, 1860 has taken
care to ensure that people who act in good
faith should not be punished. Sections 88, 92
and 370 of the Penal Code give adequate
protection to the professionals and
particularly medical professionals.”
34. Recently, this Court in a judgment reported as Dr.
Harish Kumar Khurana v. Joginder Singh[2021 SCC
OnLine SC 673] held that hospital and the doctors are
required to exercise sufficient care in treating the
patient in all circumstances. However, in an unfortunate
case, death may occur. It is necessary that sufficient
material or medical evidence should be available before
the adjudicating authority to arrive at the conclusion
that death is due to medical negligence. Every death of
a patient cannot on the face of it be considered to be
medical negligence. The Court held as under:
“11. …….. Ordinarily an accident means an
unintended and unforeseen injurious
occurrence, something that does not occur
in the usual course of events or that could
not be reasonably anticipated. The learned
21
counsel has also referred to the decision
in Martin F.D’Souza v. Mohd. Ishfaq, (2009)
3 SCC 1 wherein it is stated that simply
because the patient has not favourably
responded to a treatment given by doctor or
a surgery has failed, the doctor cannot be
held straight away liable for medical
negligence by applying the doctrine of Res
Ipsa Loquitor. It is further observed therein
that sometimes despite best efforts the
treatment of a doctor fails and the same
does not mean that the doctor or the
surgeon must be held guilty of medical
negligence unless there is some strong
evidence to suggest that the doctor is
negligent.
xxx xxx xxx
14.Having noted the decisions relied upon by
the learned counsel for the parties, it is clear
that in every case where the treatment is
not successful or the patient dies during
surgery, it cannot be automatically assumed
that the medical professional was negligent.
To indicate negligence there should be
material available on record or else
appropriate medical evidence should be
tendered. The negligence alleged should be
so glaring, in which event the principle of res
ipsa loquitur could be made applicable and
not based on perception. In the instant case,
apart from the allegations made by the
claimants before the NCDRC both in the
complaint and in the affidavit filed in the
proceedings, there is no other medical
evidence tendered by the complainant to
indicate negligence on the part of the
22
doctors who, on their own behalf had
explained their position relating to the
medical process in their affidavit to explain
there was no negligence. ………………”
36. As discussed above, the sole basis of finding the
appellants negligent was res ipsa loquitor which would
not be applicable herein keeping in view the treatment
record produced by the Hospital and/or the Doctor.
There was never a stage when the patient was left
unattended. The patient was in a critical condition and
if he could not survive even after surgery, the blame
cannot be passed on to the Hospital and the Doctor
who provided all possible treatment within their means
and capacity. The DSA test was conducted by the
Hospital itself on 22.4.1998. However, since it became
dysfunctional on 24.4.1998 and considering the critical
condition of the patient, an alternative angiography test
was advised and conducted and the re-exploration was
thus planned. It is only a matter of chance that all the
four operation theatres of the Hospital were occupied
when the patient was to undergo surgery. We do not
find that the expectation of the patient to have an
emergency operation theatre is reasonable as the
hospital can provide only as many operation theatres as
the patient load warrants. If the operation theatres
were occupied at the time when the operation of the
patient was contemplated, it cannot be said that there
is a negligence on the part of the Hospital. A team of
specialist doctors was available and also have attended
to the patient but unfortunately nature had the last
word and the patient breathed his last. The family may
not have coped with the loss of their loved one, but the
Hospital and the Doctor cannot be blamed as they
provided the requisite care at all given times. No doctor
can assure life to his patient but can only attempt to
treat his patient to the best of his ability which was
being done in the present case as well.”
23
29. In so far as the applicability of principles of Res Ipsa
Locutor, in the fact and circumstances of the case, it is to bear
in mind that the principles get attracted where circumstances
strongly suggest partaking in negligent behaviour by the
person against whom an accusation of negligence is made. For
applying the principles of Res Ipsa Locutor, it is necessary that
a ‘Res’ is present to establish the allegation of negligence.
Strong incriminating circumstantial or documentary evidence is
required for application of the doctrine.
30. In Malay Kumar Ganguly v. Dr. Sukumar Mukherjee
and Ors.
8
this Court has observed in paragraph 34 as follows:
“34. Charge of professional negligence on a
medical person is a serious one as it affects his
professional status and reputation and as such
the burden of proof would be more onerous. A
doctor cannot be held negligent only because
something has gone wrong. He also cannot be
held liable for mischance or misadventure or for
an error of judgment in making a choice when
two options are available. The mistake in
diagnosis is not necessarily a negligent
diagnosis.”
8 (2009) 9 SCC 221
24
31. The case in hand stands on a better footing, in as much as
there was no mistake in diagnosis or a negligent diagnosis by
Respondent no. 2. In the absence of the patient having any
history of diabetes, hypertension, or cardiac problem, it is
difficult to foresee a possible cardiac problem only because the
patient had suffered pain in the neck region.
32. For the foregoing, this Court is of the considered view that
the appellant has failed to establish negligence on the part of
Respondents in taking post operative care and the findings in
this regard recorded by the Commission does not suffer from
any illegality or perversity.
33. The appeal sans substance and is, accordingly, dismissed.
34. Pending application(s), if any, shall stand disposed of.

………………………………………J.
(A.S. BOPANNA)
…….……………………………….J.
(PRASHANT KUMAR MISHRA)
NEW DELHI;
OCTOBER 17, 2023.

In a case involving a Nasotracheal Intubation, where it was alleged that it resulted in a number of serious medical issues, a Supreme Court bench composed of Justices Hrishikesh Roy and Manoj Misra dismissed a claim of medical negligence and set aside the compensation given.

In this regard, the Court stated, “This is a classic case of human fallibility where the doctors endeavoured to do the best for the patient based on their experience and evolving situations. The intended outcomes, though, were not realised. It is not possible to say for sure that there was medical negligence involved in the current situation after looking at the course of treatment.

In this instance, civil appeals under Section 23 of the Consumer Protection Act of 1986 were filed in order to contest an NCDRC (National Consumer Disputes Redressal Commission) ruling. The NCDRC has ordered Mrs. Sunita Parvate to receive Rs. 6,11,638 in damages from Suretech Hospital, Drs. Nirmal Jaiswal, Madhusudan Shendre, and M.A. Biviji for medical malpractice. The case involved Mrs. Sunita undergoing a forceful Nasotracheal Intubation (NI) surgery, which led to a number of serious medical issues, including tracheal injury, infection, and voice loss. The NCDRC found inadequate support for Mrs. Sunita’s assertions that her septicemia and thrombocytopenia were caused by the carelessness, despite her claims. It did come to the conclusion that the Tracheostomy Tube (TT) replacement forced NI surgery was unnecessary. In light of the NCDRC’s conclusion that this act of negligence caused direct tracheal damage, compensation for medical expenses spent at Suretech Hospital was granted. Mrs. Sunita then filed an appeal for more money and a higher interest rate, but Dr. M.A. Biviji, Suretech Hospital, and the other doctors refuted the allegations of negligence, claiming that the forced NI procedure could not be solely blamed for the complications that followed.

The Apex Court observed that since the patient was treated and underwent different procedures at multiple hospitals, there was a possibility that the medical complications could have arose at any of the hospitals or places of treatment. Further, it was held that there was no substance to establish the causal link between the ‘NI’ procedure that was undertaken at Suretech Hospital and the subsequent medical complications that arose. In that context, it was said that, “It must be pointed out that the only medical report available in this case i.e., the RML Hospital Committee Report did not attribute any negligence to Suretech Hospital, Dr. Biviji, Dr. Jaiswal or Dr. Shendre with respect to any of the charges levelled against them. If the ‘NI’ procedure had been conducted in a negligent manner or was a poor medical decision, it is likely that the RML Hospital Committee Report would have mentioned the same. However, no such observation was made either. Further, none of the doctors that treated the patient commented adversely with respect to the chosen course of treatment.”

It was further observed that there was nothing to say that the procedure conducted was outdated or poor medical practice. In that vein, it was observed that, “the medical team at Suretech Hospital has been able to show that the ‘NI’ procedure was carried out on 13.05.2004 only after due consideration. The existing ‘TT’ was removed after the bronchoscopy showed normalcy in the airways & trachea of the patient. It was expected that the patient would be able to breathe normally without any support after ‘TT’ decannulation. However, a stridor was observed in the airways of the patient, after the said decannulation took place. In light of the same, an alternative course of treatment in the form of an ‘NI’ procedure was opted for as a temporary measure.”

Resultantly, the appeal was dismissed, and the parties were left to bear their own costs. The impugned judgment awarding compensation on account of medical negligence was set aside.

Case Title: M.A Biviji vs Sunita & Ors.

CIVIL APPEAL NO. 6224 OF 2013

VERSUS

ORDER

Heard learned counsel for the appellant as also learned counsel for the respondents and perused the appeal papers.
The appellant is before this Court assailing the judgment dated 06.02.2013 passed by the National Consumer Disputes Redressal Commission, New Delhi (For short `NCDRC’) in O.P.No.170 of 1999. The NCDRC while taking note of the rival contentions has held the appellant and also the Doctors who were working under the appellant-Hospital, namely, the respondent Nos. 2,3 & 4 before the NCDRC as negligent in causing the death. It is in that light, the NCDRC has ordered payment of compensation in the manner in which it has done as per the specific directions against the respondents before it.

C.A.NO.6224 OF 2013

Though learned counsel for the appellant seeks to contend that the NCDRC was not justified in holding that the Doctors working under the appellant Hospital were negligent, we have perused the judgment in detail. In fact, the NCDRC after having referred to the evidence which was available before it and on analyzing the same and taking into consideration the report received from the AIIMS Hospital has arrived at its conclusion. We see no other contrary material available on record to arrive at a different conclusion. Insofar as the conclusion reached by the NCDRC with regard to the negligence, it is un-exceptionable and as such does not call for interference.

Having arrived at the above conclusion, one aspect of the matter which requires clarification herein is with regard to the liability of the insurer, namely, the respondent No.6- New India Assurance Co. Ltd. It is not in dispute that the said Insurance Company have issued the policy in favour of the Doctors working under appellant i.e. in favour of Dr.Raman Garodia and Dr. H.P. Shanyar. The said Doctors have been held to be negligent by the NCDRC. In such circumstance, it is the Insurance Company which would have to reimburse the compensation to the extent of the liability under the Policy as against the said respondents.

C.A.NO.6224 OF 2013

Learned counsel for the respondent-Insurance Company no doubt has placed reliance on the judgment in the case of Sheth M.L. Vaduwala Eye Hospital Vs. Oriental Insurance Co. Ltd. reported in (2021) SCC online 3449 to contend that when the Policy issued is in the name of the Doctors and the benefit is sought to be claimed by the Hospital, the same is not payable by the Insurance Company. Having perused the same, we note in the said case the Hospital itself was seeking to take advantage of the policy. In the instant facts, as noted, in addition to the appellant-Hospital, the Doctors in whose name the Policy had been issued were also arrayed as respondents in the NCDRC and the NCDRC having adverted to all the contentions had arrived at its conclusion that the said Doctors were negligent and such conclusion has attained finality in view of our above conclusion.

It is in that circumstance, in the instant case the Insurance Company is liable to reimburse to the extent they had agreed under the Policy. Hence to that extent, we modify the order holding the Insurance Company(Respondent No.6) to be liable to the said extent and in all other respects, the appellant shall reimburse the compensation jointly and severally.

The amount in deposit before this Court shall now be released to the respondent No.1 with the accrued interest. The balance of the amount payable as per the judgment in terms

C.A.NO.6224 OF 2013

of their respective liability shall be calculated and be paid by the appellant as also the Insurance Company to the extent of their liability and the other respondents who are held jointly and severally liable, within a period of four weeks.

With the above observations and directions the appeal is disposed of.

…………………………………………………J.[A.S. BOPANNA]

……….……………………………………….J.[DIPANKAR DATTA]

NEW DELHI;
APRIL 20, 2023

SUPREME COURT OF INDIA

RECORD OF PROCEEDINGS

Civil Appeal No. 6224/2013

VERSUS

(IA No. 117058/2022 – EARLY HEARING APPLICATION)

Date : 20-04-2023 These matters were called on for hearing today
CORAM :

HON’BLE MR. JUSTICE A.S. BOPANNA
HON’BLE MR. JUSTICE DIPANKAR DATTA

For parties

Ms. Ruchira Gupta, Adv.
Mr. Shishir Deshpande, AOR
Ms. Pooja Tripathi, Adv.
Ms. Harshita Sharma, Adv.
Mr. Deep Narayan Sarkar, Adv.
Ms. Astha Tyagi, Adv.
Mr. Manish Kumar, Adv.
Mr. Amit Kumar, Adv.
Mr. Piyush Kaushik, Adv.
Ms. Aparajita Jha, Adv.
Mr. Brian Henry Moses, Adv.
Mr. Madan Lal Sagar, Adv.
Ms. Divya Roy, AOR
Dr. Sushil Kumar, Adv.
Ms. Sunita Gupta, Adv.
Ms. Mridula Ray Bharadwaj, AO
Ms. Surbhi Mehta, AOR

UPON hearing the counsel the Court made the following.
ORDER
The appeal is disposed of in terms of signed order. Pending application(s) shall stand disposed of.

(Signed order is placed on the file)

The National Consumer Dispute Redressal Commission (NCDRC) bench comprising presiding member Dr. S.M. Kantikar focused on the duty of the civil society to ensure that medical professionals are not unnecessarily harassed or humiliated. The complaint filed by the patient was dismissed on the ground that firstly, the doctors possessed necessary skills and secondly, reasonable care was taken by them while performing the operation of the twin babies. The unfortunate death of one of the twins was attributed to the patient herself who could not take precautions and failed to follow the instructions.

Dr. Ishita Tikka (“patient”) was under antenatal care of one of the doctors in Apollo Cradle Hospital, Amritsar. It was a twin pregnancy and one of the twins was diagnosed with ‘esophageal atresia’ before birth only. Therefore, Doctor concerned performed a pre-term delivery using cesarean section. It was alleged by the patient that without examining, Doctor performed cesarean section and forced for pre-term twin delivery by putting high risk to the new born twins. The patient’s husband, being a doctor himself, alleged that he noticed through the glass window that proper care was not taken. There was just one nurse who was busy on her phone. Further, the area was kept very unhygienic because of which the babies developed pneumonia and septicaemia. Under critical conditions, the babies were shifted to another hospital wherein one of the twins died because of infection which was allegedly caused at Apollo Cradle. Thus, the patient filed this complaint under Section 21(A)(i) of the Consumer Protection Act, 1986 (“the Act”) against Apollo Cradle, Amritsar and its 3 doctors for alleged medical negligence causing her pre-term twin delivery death of one of the twins.

The Opposite Parties contended that the patient, herself being a doctor, did not follow the pre-requisite scans and instructions, which ipso facto itself was negligence. Several steps of medication could have been taken but the patient’s husband refused to consent. The husband of the patient also interfered with the treatment at several stages.

The NCDRC perused the medical record and observed that when the cardiac defects and anatomical malformations in one of the twins was informed to the  husband of the patient, instead of giving consent to the medication and treatment, the husband and his relatives started finding faults in the Opposing party. The Commission further relied upon the reputed book named ‘William’s Obstetrics (21st edition) and Pediatric Surgery’ by Benson and held that the act of the opposite party was not intentional and right steps were taken to control the infection. Further, the bench relied upon the AIIMS Protocol of Neonatology which revealed that the early onset neonatal sepsis occurs due to infection of maternal origin and thus, it was observed that it was not an acquired hospital infection. In fact, gross medical negligence was established on the part of the patient’s husband who interfered in the treatment and even administered certain injections himself.

Reliance was placed on the recent Supreme Court decision in Chanda Rani Akhouri vs M.S. Methusethupathi Mithupathi (2021) 10 SCC 291 wherein the court held that no doctor can ensure a full recovery in every case. Liability would only come if:

• Either a person (doctor) did not possess the requisite skills in the branch of the profession;
• Or, he did not exercise with reasonable competence in the given case the skill which he did possess.

It was held that simple lack of care, an error in judgment or an accident, is not proof of negligence on the part of the medical professional. With the aforementioned findings, the NCDRC held that the complainant was trying to levy false and misconceived allegation against the hospital. The treating doctors and the Hospital were absolved of any liabilities.

Case: Dr. Ishita Tikkha vs Managing Director, Apollo Cradle and others Case No.:

Consumer Case No. 1405 of 2019

 

The Supreme Court (SC) has once again called for a ban on the two-finger test in rape cases nearly a decade after it first did so. It has said those who conduct it would be held guilty of misconduct. A Bench made up of Justice DY Chandrachud and Justice Hima Kohli made the observations in an SC order overturning the acquittal of a rape accused in the Telangana High Court October 31, 2022. Chandrachud, who will soon take over as the Chief Justice of India November 9, called the practice ‘patriarchal’ and ‘sexist’ . He also ordered the two-finger test to be removed from the syllabus of medical education.

Chandrachud observed the test not only re-traumatised and re-victimised women, but was actually “based on an incorrect assumption that a sexually active woman cannot be raped. Nothing can be further from the truth.”

“Evidence of a victim’s sexual history (is) not material to case. It is regrettable that it continues to be conducted even today,” Chandrachud said.
The bench directed the Union Health Ministry to ensure the two finger test was not conducted on rape survivors. It also asked central and state governments to relay the information to all government and private hospitals.

This came on the heels of the December 2012 Nirbhaya gangrape case, after which the Union health ministry updated the proforma for medical examination of rape victims to remove the  two-finger test.

The continued abuse of this examination has the potential to impact legal outcomes. The BMJ article argues that “defence lawyers use an ‘affirmative’ two-finger test to question a woman’s character and to refute allegations that sex was non- consensual. Such patriarchal assumptions have contributed to victims losing cases.” The practice was termed unconstitutional even then. But not much has changed. There has been a complete disconnect with the observations made by the court and the reality. Medical curriculum has to keep pace with changes in the society and law. The text books also need to be amended suitably. Many textbook of forensic medicine still continue to carry old, outdated information and the two-finger test is a glaring example.

SHAHEELA IMAM V DR. NAHID FATIMA
The National Consumer Disputes Redressal Commission (NCDRC) has acquitted a surgeon from charges of medical negligence in performing vacuum delivery and medio-lateral episiotomy noting that so long as the doctors follows a practice acceptable to the profession on that day he can’t be held liable for negligence merely because a better alternative course of treatment was available or a more skilled doctor would not have chosen to follow or resort to that practice which the accused followed. The case concerns a pregnant woman who delivered a male baby of 3.75 kg under the guidance of the practicing obstetrics in her maternity nursing home at Okhla, Delhi in 2014.

However, it was alleged that the surgeon instead of performing Cesarean section delivery, performed vacuum delivery with third degree perennial tear (episiotomy) without disclosing or taking consent of the patient or her husband for need of episiotomy and delivery by vacuum application which caused injury to rectal sphincter.

Later, on the patient’s parents took her to Aligarh and consulted at Jawaharlal Nehru Medical College and Hospital (JNMCH). It was further alleged that the doctors therein told about wrong procedure adopted by the surgeon during delivery and the episiotomy caused rectal sphincter injury and episiotomy wound was not properly stitched.

Alleging that the patient became disabled, unable to perform day to day activities, lost job opportunities and her matrimonial life was spoiled by the wrong treatment of the doctor, the patient filed the complaint against the doctor and the insurance company, seeking a total compensation amount of Rs. 2,27,85,000/- under different heads. The Complainant also filed one complaint before Delhi Medical Council (DMC) in April 2015. The Counsel for the complainant submitted that the doctor did not follow the standard procedure as prescribed by the Royal College of Obstetricians & Gynaecologists. He further submitted that; “In the instant case the findings of the DMC regarding the professional conduct of the doctor have great relevance to hold medical negligence leading to defiency of service”.

Meanwhile, the doctor filed her written version. She denied the allegations as false, vexatious and filed this complaint was filed in order to extract money by suppressing the material facts. She submitted “The weight of baby was 3.75 kg and it was big size baby (25% more than normal Indian standard), therefore for the safety of the baby and mother medio-lateral episiotomy was performed. As episiotomy decision to be taken on the situation and it is a part and parcel of vaginal delivery, therefore consent was not taken. The episiotomy wound was stitched as per standard procedure. The patient was discharged in good condition and advised to take antibiotics and other medicines. She was called for follow-up after a week. Therefore there was neither deficiency nor negligence while performing delivery and the post-delivery advice. Moreover the patient travelled to Aligarh which was not advised. The counsel for the defendant submitted that the delivery was conducted with ventose application and it was not a wrong decision to perform to perform episiotomy when the baby was large to avoid perineal injuries to the mother and to shorten the process of labour, also to avoid hypoxia to the new-born. The right medio lateral incision is safe and as an accepted standard which prevent perineal tear and rectal injuries. An emergency episiotomy was needed for the safety of big baby and the mother”. In the instant case the patient had no complaints after the discharge from the nursing home but after 23 days on (15.09.2014) developed the fistula. It was not due to episiotomy as it was alleged. It might be due to infection at episiotomy stich or an abscess which opens in to the rectum causing recto-vaginal fistula.”  he further argued adding that that, after discharge the patient visited the doctor twice, but on both the days she had no complaints and on examination there were no signs of fistula. Thereafter, the patient never turned up to the doctor for follow-up, but she travelled to Aligarh which increased the risk of fistula.

He filed medical literature and texts from book -William’s Obstetrics and placed reliance upon Supreme Court’s orders. Considering the arguments from both the parties. the Commission noted that at JLN Hospital no doctor has made any adverse observations or remarks with regard to the treatment or the delivery procedure adopted by the surgeon. Perusing the DMC order wherein the disciplinary committee of DMC took decision that the doctor did not exercise degree of skill, care and knowledge which was expected of reasonably prudent doctor, the top consumer court observed that the DMC did not comment on whether the doctor performed ventouse delivery wrongly and the episiotomy was not performed as per standard of practice. DMC has not given any opinion whether it was negligence of the doctor as a cause of recto-vaginal fistula. It noted: “DMC order is not in consonance with the facts & medical literature. Also, the DMC failed to consider that when patient came to surgical centre it was not possible to refer her to any other hospital because of risk involved and moreover delivery could have taken place at any time.

The DMC did not consider the four ingredients 4 ‘D’s of medical negligence viz Duty, Dereliction (breach), Direct cause (causa causens) and Damage(s). Each of these four elements must be proved by the Complainant to succeed in his claim.

The National Consumer Disputes Redressal Commission (NCDRC) exonerated a Cardiologist and Manipur based hospital from charges of medical negligence while implanting pacemaker on a patient suffering from Chronic Kidney Disease.

Although the District and State Commission had held them guilty and directed them to pay Rs 5, 90,000 to the Complainants, the top consumer court noted that both the fora had failed to consider the medical grounds and erred to hold the Petitioners liable for medical negligence.

“The patient died due to her severe was already suffering from several fatal comorbidities. The patient was treated in the ICU with reasonable duty of care by the team of doctors including cardiologist and nephrologist. It was held that they did not find any deficiency or medical negligence from the hospital and treating doctor,” noted the Commission in its order.
The matter concerns alleged medical negligence in the implantation of pacemaker. Back in 2012 the patient, who had been suffering from renal disease approached Shija Hospital after she developed breathing difficulties. Immediately, the patient had been shifted to ICU and she had been examined by, the Professor and Head of Cardiovascular and thoracic Department of RIMS Hospital. Doctor implanted temporary pacemaker and on the same day the doctor performed haemodialysis on the patient. Since the patient’s condition improved, the temporary pacemaker had been removed with the consent of the patient. However, after its removal, the patient became serious again and therefore, Doctor advised for re-implantation of permanent pacemaker after one or two days.

Accordingly, the permanent pacemaker was fixed on 25.03.2012 and it was assured by the doctor that the pacemaker would last for 10 years and the patient would be able to survive at least two or three years. However, the condition of the patient did not improve and she developed a number of complications such as difficulties in breathing, fluid in chest and non-healing of stitches etc.

The complainants alleged that Doctor had not satisfactorily clarified about such complications and ultimately the patient died 9 days after the implantation of the permanent pacemaker. When the complainants approached the District Forum, their appeal was allowed and the consumer court had directed Dr Singh and Shija Hospital to pay jointly and severely Rs.5,90,000 to the Complainants. Aggrieved by this order, the doctor and hospital had approached the State Commission, which dismissed their appeal and confirmed the order of the District Commission. Therefore, they approached the NCDRC bench. After considering the arguments made by the counsel for both the parties, the top consumer court also perused the entire medical record and order of the District and State Consumer Court.

The Commission noted that the patient was elderly, around 75 years of age and had been admitted to the Hospital for the treatment of Chronic Kidney Disease (CKD-V), complete heart block, type-II diabetes. For CKD-V, she was regularly undergoing dialysis. Due to cardiac problem, Dr. Singh, the cardiologist implanted temporary pacemaker which showed improvement and therefore, it was replaced by permanent pacemaker on 25.03.2012.

Referring to the medical record, the Commission noted, “It should be borne in mind that after the treatment, no doctor shall assure or guarantee about the life expectancy of patient. Even the Complainant failed to produce evidence to prove that the pacemaker was defective. As per medical literature, pacemakers are supportive in the therapy for the conductivity of the heart.

“At this outset, the top consumer court referred to the Supreme Court order in the case of Jacob Mathew, where the top court had observed that “To hold in favour of existence of negligence, associated with the action or inaction of a medical professional, requires an in-depth understanding of the working of a professional as also the nature of the job and of errors committed by chance, which do not necessarily involve the element of culpability.” Referring to this, the NCDRC bench observed that in this case, “The patient died due to her severe was already suffering from several fatal comorbidities. The patient was treated in the ICU with reasonable duty of care by the team of doctors including cardiologist and nephrologist. We do not find any deficiency or medical negligence from the hospital and treating doctor.”