Punjab

Ludhiana

CC/19/513

Chatanya - Complainant(s)

Versus

Dr.Neeru Aggarwal - Opp.Party(s)

Charanjeet Singh Adv.

23 Nov 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                                                Complaint No:513 dated 01.11.2019.                                                         Date of decision: 23.11.2023.

 

Chatanya minor daughter of Vinod Bhatia, through her maternal uncle Sh. Jatinder Sharma S/o. Ashok Kumar Sharma, R/o.95/489, Ward #5, Gali No.2, Ambedkar Nagar Khanna, District Ludhiana, as natural guardian & next friend having no interests adverse to her rather her interests are safest in his hands.                                                                                           ..…Complainant

                                                Versus

1. Dr. Neeru Aggarwal (Syal), Medical Officer, Civil Hospital, Khanna.
2. Dr. Maninder Bhasin, the then Acting Senior Medical Officer, Civil Hospital, Khanna.
3. The Chief Medical Officer, Ludhiana.
4. State of Punjab, through Secretary/Director, Ministry of Health Affairs, Chandigarh.
5. Civil Hospital, Khanna through S.M. Official/Incharge, Khanna.                                                                                    …..Opposite parties 

Complaint Under section 12 of the Consumer Protection Act, 1986.

QUORUM:

SH. SANJEEV BATRA, PRESIDENT

SH. JASWINDER SINGH, MEMBER

MS. MONIKA BHAGAT, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant             :         Sh. Charanjit Singh, Advocate.

For OP1 and OP2          :         Sh. Rajat Malhotra, Advocate.

For OP3 to OP5             :         Exparte.

 

 

 

ORDER

PER SANJEEV BATRA, PRESIDENT

1.                Shorn of unnecessary details, the facts of the case are that deceased Smt. Geeta Rani availed the services of the OPs against consideration for the birth of the minor Chatanya and this compliant has been filed by minor Chatanya through her maternal uncle, a next friend namely Sh. Jatinder Sharma as natural father of the complainant has abandoned the minor complainant since her birth. The complainant was born on 03.11.2017. Her mother Smt. Geeta Rani was pregnant and was admitted in Civil Hospital, Khana for delivery. She was attended by OP1 along with other staff who conducted caesarian operation on 03.11.2017 with negligence and carelessness due to which Geeta Rani died in the hospital on 03.11.2017. Even her post mortem was wrongly conducted by preparing a vague report. The matter was reported to P.S. City, Khanna and a GDR No.17 dated 04.11.2017 as lodged by Sh. Jatinder Sharma. However, with the help of police, OP1 managed to get registered an FIR after 25 days against unknown persons on false allegations. It is further stated that as the police did not take any action, Sh. Jatinder Sharma moved a CRM-M-49644 of 2017 before the Hon’ble Punjab and Haryana High Court, Chandigarh which was decided vide order dated 22.12.2017 with direction to Senior Superintendent of Police, Police District Khanna to look into the representation moved by the petitioner within a period of 4 weeks in accordance with law. Despite order passed in CRM, the police did not taken any action rather started raiding residence of Jatinder Sharma in order to arrest him in blind FIR so he obtained anticipatory bail from Sessions Courts, Ludhiana. The complainant further stated that the OPs have rejected her genuine claim lodged through Jatinder Sharma due to which the complainant has suffered mental tension, harassment etc. for which she is entitled to compensation.  In the end, it has been prayed that the OPs be directed to compensate her to the tune of Rs.20,00,000/- along with litigation expenses.

2.                Notice was issued to OP3 to OP5 through registered post dated 29.04.2021 but none turned up for OP3 to OP5 despite and as such, Op3 to OP5 were proceeded against exparte vide order dated 28.07.2021.

3.                Upon notice, OP1 and OP2 filed joint written statement and assailed the complaint by taking preliminary objections on the ground of maintainability and concealment of facts etc. OP1 and OP2 averred that OP1 was on day duty (9am to 3pm) at Civil Hospital, Khanna as gynecologist on 03.11.2017 and after 3pm, she was on emergency-on-call duty. After seeing around 50 patients in OPD on 03.1.2017 OP1 went to operation theatre and did four caesarean sections. All the four mothers and babies were shifted to female ward in satisfactory condition. The patient named Geeta 28y/Female, W/O Vinod Bhatia came with complaints of leaking per vaginum since morning on 03.11.2017 in her OPD and was admitted at 12.35 pm. On examination, she was found to have premature rupture of membranes with early labor pains and CPD. Patient was very uncooperative in examination. Patient and her attendant (only mother was present) were explained about the condition of the patient in their own language and were advised emergency caesarean delivery. Patient and her attendant opted for emergency caesarean with informed consent. After admission, Anesthetist Dr. Binay was informed and he examined the patient and declared the patient fit for surgery. After preoperative workup and arranging blood, patient was shifted to operation theatre. OP1 was already present in OT and she did three caesarean sections before this case. Before taking up for surgery, only mother of the patient was present, no male attendant was present. Patient Geeta underwent emergency caesarean section and female baby was delivered on 03.11.2017 at 02.59 pm. Per-operatively it was an uneventful surgery. Both mother and baby were stable and there was no PPH. Baby and mother were observed in operation theatre for around half an hour and then shifted to female ward in stable condition. OP1 and OP2 further stated that Post operatively, the patient was checked by OP1 in ward around 4 pm and her vitals were stable, uterus was well contracted, there was no active bleeding per vaginum and urine output in urobag was adequate. After finishing her work, OP1 went home and after that she was available on call for emergency. Moreover, in Civil Hospital, Khanna there is Emergency Medical officer available round the clock (24 hrs) to attend postoperative patients/ ward patients/ emergency cases. If any need arises for postoperative patient, on duty staff nurse informs Emergency Medical Officer and they inform the concerned specialist needed. Dr. Manu Vij (presently Senior Medical Officer, Civil Hospital, Samrala), was on night duty (8pm to 8am) as Emergency medical Officer on 03.11.2017 at Civil Hospital, Khanna . Even around midnight patient Geeta developed restlessness for which, on- duty staff nurse called Emergency Medical Officer, Dr. Manu Vij who after reaching, immediately, examined the patient, checked her vitals, there was no sign of PPH and did RBS and emergency ECG. Patient was found to have hypoglycaemia (RBS 34 mg / d  l ) . They started 25% dextrose infusion. Oxygen inhalation was also started. In the meanwhile they informed OP1 about patient Geeta's condition over phone. OP1 rushed to hospital immediately and reached the ward approximately around 12:20 am on 04.11.2017.  At that time the BP of patient Geeta was 90/60 mmHg, PR was 110/min, P / A was soft with no distension, uterus was well contracted, and there was no active bleeding per vaginum. Oxygen inhalation was continued, Inj Effcorlin was given and IV fluids continued. When her BP still remained 90/60 mmHg, dobutamine drip was started and call for blood cross matching was sent. At around 12:35 am patient started gasping, BP became unrecordable, CPR was started and other resuscitative measures were continued. We continued our best efforts in treating and reviving the patient. But patient could not be revived despite our vigorous efforts. Patient was declared dead on 04.11.2017  at 12/45 am. As such, OP1 was not negligent in providing best possible treatment to Mrs. Geeta.

                   OP1 and OP2 further stated that attendants of patient gathered there and misbehaved with them by threatening and hitting the doctors and staff upon which an FIR No.305 dated 29.11.2017, U/s. 3,4,6 of Punjab Protection of Medicare Service Persons and Medicare Service Institutions Bill was registered against the wrong doers including Jatinder Sharma at Police Station City Khanna.  Proceedings U/s174 Cr.P.C., post mortem of Geeta Rani was conducted and viscra was sent to Pathology Department of Government Medical College, Patiala and the board of Dr. Ravinder Kaur, Dr. Gurwinder Singh Kakkar and Dr. Ravish Chhabra gave the opinion which is reproduced as under:-

“SMO Civil Hospital, Khanna.  Subject: Opinion Regarding Cause of Death in Respect of Deceased Geeta Bhatia 28 / F W / O Vinod Bhatia R/O Amritsar. After going through the Postmortem Report and Histopathology Report No. MLC no. 111/18 dt 03.02.18 . The cause of death in this case in our opinion is as a result of diseased condition as per Histopathology report which is antemortematemin nature and sufficient to cause death in ordinary cause of nature."               

                   OP1 and OP2 further stated that, the complainant preferred a writ before the Hon'ble Punjab & Haryana High Court vide CRM-M-49644 of 2017 which was disposed off vide order dated 22.12.2017 and for deciding the representation of the complainant, SSP Khanna recommended a board to be constituted and for that a five member board was constituted by Civil Surgeon, Ludhiana which again considered circumstances, all the post mortem facts, report, histopathology report, who gave the following opinion:-

"After going through the whole record (file and postmortem record), complaint, statements of doctor and staff nurses, we are of the opinion that the patient Geeta was admitted and managed as per standard observed protocol and was found fit for surgery pre-opertively. Her surgery was uneventful and she was stable for 8.5 hours post surgery when she had sudden onset of restlessness and was managed competently by the doctors on duty.

The cause of death appears to be? DIC (Disseminated Intravascular Coaggulation)??Pulmonary Embolism which are known serious complications associated with pregnancy in post operative period. There is no negligence on the part of the treating doctors and staff nurses.”

Even the representation moved by the complainant before SDM, Khanna to enquire into the matter but Jatinder Sharma could not produce any evidence regarding his innocence in FIR No.305 of 2017 and the challan was presented before the Learned Trial Court.

                   On merits, OP1 and OP2 reiterated the crux of averments made in the preliminary objections and facts of the case. OP1 and OP2 have denied that there is any deficiency of service and have also prayed for dismissal of the complaint.

4.                In support of the claim of the complainant, the  guardian of the complainant tendered his affidavit Ex. CA in which he reiterated the allegations and the claim of compensation as stated in the complaint. The complainant also tendered documents Ex. C1 is the copy of GDR No.17 dated 04.11.2017, Ex. C2 is the cop of post mortem report, Ex. C3 is the copy of opinion of the medical board, Ex. C4 is the copy of order dated 22.12.2017 of the Hon’ble High Court, Ex. C5 is the copy of FIR No.305 of 2017, Ex. C6 is the copy of birth certificate of the complainant, Ex. C7 and Ex. C8 are the copies of representations dated  04.01.2018 moved to SSP, Khanna as well as Director, Health and Family Affairs, Punjab, Chandigarh and closed the evidence.

5.                On the other hand, counsel for OP1 and OP2 tendered affidavit Ex. RA of Dr. Neeru Aggarwal, affidavit Ex. RB of Dr. Maninder Singh Bhasin along with documents Ex.  R1 to Ex. R61 and closed the evidence.

6.                We have heard the arguments of the counsel for the parties and also gone through the complaint, affidavit and annexed documents and written reply along with documents produced on record by both the parties.

7.                           During the course of arguments, it has been vehemently argued by counsel for the complainant that it is a clear cut case of acute negligence on the part of the OP1 and other staff of the hospital in conducting the caesarian operation of Smt. Geeta Rani and on account of this negligent act of the OP1. The counsel for the complainant has further contended that as a result of this,

Smt. Geeta Rani died in the hospital on 03.11.2017. According to the counsel for the complainant, this shows that the OP1 was negligent and reckless while performing the surgery/caesarian of mother of the complainant Smt. Geeta Rani. On the other hand, counsel for the OP1 and OP2 has argued that no case of negligence on the part of the OP1 is made out nor the complainant has led any cogent or convincing evidence to prove the factum of negligence on the part of the OP1. According to the counsel for OP1 and OP2, the OP1 treated the patient Smt. Geeta Rani to the best of her ability.

8.                In the present case, the minor complainant Chatanya being daughter of deceased Smt. Geeta Rani, through her next friend and guardian Sh. Jatinder Sharma has invoked the jurisdiction of this Commission by raising consumer dispute with regard to the medical negligence of the opposite parties by claiming hersellf to be the consumer of the OPs. Section 2(7) of the Consumer Protection Act, 2019 provides:-

       “Consumer” means any person who:-

(i) of the Consumer Protection Act, 2019 the consumer means a person who buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or

(ii)hires or avails of any service for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and include any beneficiary of such service other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person, but does not include a person who avails of such service for any commercial purpose.”

Explanation. -For the purposes of this clause, -

(a) the expression "commercial purpose " does not include use by a person of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self-employment;

 (b) the expressions "buys any goods " and "hires or avails any services " includes offline or online transactions through electronic means or by teleshopping or direct selling or multi-level marketing;

                   Although statutory definition of “consumer” is wide and is having efficacious coverage but each case has to be determined on the basis of peculiar facts and circumstances.

9.                In this regard, reference can be made to 1996 AIR 550 in Indian Medical Association Vs V.P. Shantha & others whereby the Hon’ble Supreme Court has held that a medical officer who is employed in a hospital renders service on behalf of the hospital administration and if the service as rendered by the hospital does not fall within the ambit of 2(1) (o) of the Act being free of charge, same service cannot be treated as service under Section 2(1) (o) for the reasons that it has been rendered by medical officer in the hospital who receives salary for the employment in the hospital. Further the services rendered by employee-medical officer to such a person would therefore continue to be service rendered free of charge and would be outside the purview of Section 2(1) (o) of the Act. The Hon’ble Supreme Court further held that the services rendered to a patient by a medical practitioner or a hospital by way of diagnosis and treatment, both medicinal and surgical, would not come within the definition of 'service' in Section 2(1) (o) and a patient who undergoes treatment under a medical practitioner or a hospital by way of diagnosis and treatment, both medicinal and surgical, cannot be considered to be a 'consumer' within the meaning of Section 2(1) (d) of the Act cannot be sustained. The Hon’ble Supreme Court in this case has concluded as under:-

(1) Service rendered to a patient by a medical practitioner (except where the doctor renders service free of charge to every patient or under a contract of personal service), by way of consultation, diagnosis and treatment, both medicinal and surgical, would fall within the ambit of 'service' as defined in Section 2(1) (o) of the Act.

2) The fact that medical practitioners belong to the medical profession and are subject to the disciplinary control of the Medical Council of India and/or State Medical Councils constituted under the provisions of the Indian Medical Council Act would not exclude the services rendered by them from the ambit of the Act.

3) A 'contract of personal service' has to be distinguished from a 'contract for personal services'. In the absence of a relationship of master and servant between the patient and medical practitioner, the service rendered by a medical practitioner to the patient cannot be regarded as service rendered under a 'contract of personal service'. Such service is service rendered under a `contract for personal services' and is not covered by exclusionary clause of the definition of 'service' contained in Section 2(1) (o) of the Act.

(4) The expression 'contract of personal service' in Section 2(1) (o) of the Act cannot be confined to contracts for employment of domestic servants only and the said expression would include the employment of a medical officer for the purpose of rendering medical service to the employer. The service rendered by a medical officer to his employer under the contract of employment would be outside the purview of 'service' as defined in Section 2(1) (o) of the Act.

5) Service rendered free of charge by a medical practitioner attached to a hospital/Nursing home or a medical officer employed in a hospital/Nursing home where such services are rendered free of charge to everybody, would not be "service" as defined in Section 2(1) (o) of the Act. The payment of a token amount for registration purpose only at the hospital/nursing home would not alter the position.

6) Service rendered at a non-Government hospital/Nursing home where no charge whatsoever is made from any person availing the service and all patients (rich and poor) are given free service - is outside the purview of the expression 'service' as defined in Section 2(1) (o) of the Act. The payment of a token amount for registration purpose only at the hospital/Nursing home would not alter the position.

7) Service rendered at a non-Government hospital/Nursing home where charges are required to be paid by the persons availing such services falls within the purview of the expression 'service' as defined in Section 2(1) (o) of the Act.

8) Service rendered at a non-Government hospital/Nursing home where charges are required to be paid by persons who are in a position to pay and persons who cannot afford to pay are rendered service free of charge would fall within the ambit of the expression 'service' as defined in Section 2(1) (o) of the Act irrespective of the fact that the service is rendered free of charge to persons who are not in a position to pay for such services. Free service, would also be "service" and the recipient a "consumer" under the Act.

9) Service rendered at a Government hospital/health centre/dispensary where no charge whatsoever is made from any person availing the services and all patients (rich and poor) are given free service - is outside the purview of the expression 'service' as defined in Section 2(1) (o) of the Act. The payment of a token amount for registration purpose only at the hospital/nursing home would not alter the position.

10) Service rendered at a Government hospital/health centre/dispensary where services are rendered on payment of charges and also rendered free of charge to other persons availing such services would fall within the ambit of the expression 'service' as defined in Section 2(1) (o) of the Act irrespective of the fact that the service is rendered free of charge to persons who do not pay for such service. Free service would also be "service" and the recipient a "consumer" under the Act.

11) Service rendered by a medical practitioner or hospital/nursing home cannot be regarded as service rendered free of charge, if the person availing the service has taken an insurance policy for medical care whereunder the charges for consultation, diagnosis and medical treatment are borne by the insurance company and such service would fall within the ambit of 'service' as defined in Section 2(1) (o) of the Act.

12) Similarly, where, as a part of the conditions of service, the employer bears the expenses of medical treatment of an employee and his family members dependent on him, the service rendered to such an employee and his family members by a medical practitioner or a hospital/nursing home would not be free of charge and would constitute 'service' under Section 2(1) (o) of the Act.

10.              Further reference can be made to Civil Appeal No.103 of 2012 in Nivedita Singh Vs Dr. Asha Bharti and others whereby the Hon’ble Supreme Court of India has dismissed the said appea with the following observations:-

“45. In respect of the hospitals/nursing homes (government and non-government) falling in category (i), i.e., where services are rendered free of charge to everybody availing of the services, it has been urged by Shri Dhavan that even though the service rendered at the hospital, being free of charge, does not fall within the ambit of Section 2(1)(o) of the Act insofar as the hospital is concerned, the said service would fall within the ambit of Section 2(1)(o) since it is rendered by a medical officer employed in the hospital who is not rendering the service free of charge because the said medical officer receives emoluments by way of salary for employment in the hospital. There is no merit in this contention. the medical officer who is employed in the hospital renders the service on behalf of the hospital administration and if the service, as rendered by the hospital, does not fall within the ambit of Section 2(1) WWW.LIVELAW.IN LL 2021 SC 721 3 (o), being free of charge, the same service cannot be treated as service under Section 2(1)(o) for the reason that it has been rendered by a medical officer in the hospital who receives salary for employment in the hospital. There is no direct nexus between the payment of the salary to the medical officer by the hospital administration and the person to whom service is rendered. The salary that is paid by the hospital administration to the employee medical officer cannot be regarded as payment made on behalf of the person availing of the service or for his benefit so as to make the person availing the service a "consumer" under Section 2(1)(d) in respect of the service rendered to him. The service rendered by the employee-medical officer to such a person would, therefore, continue to be service rendered free of charge and would be outside the purview of Section 2(1)(o).”

11.              Caesarean operation of the deceased Smt. Geeta Rani was conducted on 03.11.2017 by OP1 and she expired on 03.11.2017 in OP5 hospital. At that time, OP1 and OP2 were employed as doctors at a Government hospital, being supervised by OP4 and OP5. OP5 hospital is a State Government hospital where free services are being provided for the welfare of the public without paying any charges to the treating doctors. As such, the complainant is not a consumer of the OPs as no consideration was paid to OPs for the delivery and operation of Smt. Geeta Rani.

12.              The other point of consideration is whether the opposite parties were negligent in treating the patient Smt. Geeta Rani on 03.11.2017 which ultimately led to her death on 03.11.2017.

13.              Legally speaking, Medical negligence is a breach of a duty of care by an act of omission or commission by a medical professional of ordinary prudence. Actionable medical negligence is the neglect in exercising a reasonable degree of skin resulting an injury to such person. The standard to be applied for adjudging whether the medical professional charged has been negligent or not, in the performance of his duty, would be that of an ordinary competent person exercising ordinary skill in the profession. The law requires neither the very highest nor a very low degree of care and competence to adjudge whether the medical professional has been negligent in the treatment of the patient.

14.              Further to prove the factum of medical negligence on the part of OP1 and OP2, the complainant has only tendered in evidence affidavit Ex. CA of Sh. Jatinder Sharma along with documents Ex. C1 to Ex. C8. However, no medical expert or a doctor has been examined by the complainant to prove the allegations made in the complaint. Admittedly, the cesarean operation of Smt. Geeta Rani was performed by OP1 on 03.11.2017 and she died on 03.11.2017 in the hospital. It is pertinent to mention that with regard to the alleged negligence on the part of the OP1 and OP2 report was sought from the Civil Surgeon, Ludhiana which is Ex. R14 on the file. In the report by board of doctors comprising of as many as five qualified doctors, it has been mentioned that "After going through the whole record (file and postmortem record), complaint, statements of doctor and staff nurses, we are of the opinion that the patient Geeta was admitted and managed as per standard observed protocol and was surgery pre-opertively. Her found fit for surgery was uneventful and she was stable for 8.5 hours post surgery when she had sudden onset of restlessness and was managed competently by the doctors on duty.

                   It is further mentioned in the report Ex. R14 that The cause of death appears to be? DIC (Disseminated Intravascular Coaggulation)??Pulmonary Embolism which are known serious complications associated with pregnancy in post operative period. There is no negligence on the part of the treating doctors and staff nurses.”

There is no categorical finding in the report of board of doctors to the effect that any medical negligence has been adopted by the treating doctors while treating performing operation of the patient. It shows that the treating doctors made all possible efforts and utilized available resources in order to improve the condition of the patient.

15.              A reference can be made to case titled as Jacob Mathew Vs State Of Punjab & Anr. 2005(2) Apex Court Judgments 136 (SC) whereby the Hon’ble Supreme Court of India summed up the law on medical negligence in the following words:-

“48. (1) Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. The definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P. Singh), referred to hereinabove, holds good. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: 'duty', 'breach' and 'resulting damage'.

(2) Negligence in the context of medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. When it comes to the failure of taking precautions what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. So also, the standard of care, while 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. Similarly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that particular time (that is, the time of the incident) at which it is suggested it should have been used.

(3) 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 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.

(4) The test for determining medical negligence as laid down in Bolam's case [1957] 1 W.L.R. 582, 586 holds good in its applicability in India.

 

16.              Further reference can be made to case title Bombay Hospital & Medical Research Centre Vs Asha Jaiswal & others I (2022) CPJ 3 (SC) whereby the Hon’ble Supreme Court of India has held in paragraphs 32 and 34 of judgment, which is reproduced as under:-

32. In C.P. Sreekumar (Dr.), MS (Ortho) v. S. Ramanujam12, 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 in- violable truth even though it remained unsupported by any evidence. As already observed in Jacob Mathew case [(2005) 6 SCC 1 : 2005 SCC (Cri) 1369] 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 complainant to provide the facta robanda as well as the facta probantia.”

34. Recently, this Court in a judgment reported as Dr. Harish Kumar Khurana v. Joginder Singh & Others (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.”

17.              Further, reference can also be made to the case title Dr. (Mrs.) Chandarani Akhouri and others Vs Dr. M.A. Methusethupathi & others in II (2022) CPJ 51 (SC) whereby it has been held by the Hon’ble Supreme Court of India in para No.27 of its judgment which is reproduced as under:-

“27. It clearly emerges from the exposition of law that a medical practitioner is not to be held liable simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another. In the practice of medicine, there could be varying approaches of treatment. There could be a genuine difference of opinion. However, while adopting a course of treatment, the duty cast upon the medical practitioner is that he must ensure that the medical protocol being followed by him is to the best of his skill and with competence at his command. At the given time, medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.”

 

By applying the ratio of above citations, the complainants have failed to prove medical negligence against the opposite parties conclusively.

18.              As a result of above discussion, the complaint is hereby dismissed being devoid of any merits. However, there shall be no order as to costs. Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.            

19.              Due to huge pendency of cases, the complaint could not be decided within statutory period.

 

(Monika Bhagat)          (Jaswinder Singh)             (Sanjeev Batra)

Member                         Member                              President        

 

Announced in Open Commission.

Dated:23.11.2023.

Gobind Ram.