Delhi

West Delhi

CC/07/892

MOHAN PRASAD - Complainant(s)

Versus

ESIC - Opp.Party(s)

13 Dec 2021

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-III: WEST

GOVT. OF NCT OF DELHI

C-BLOCK, COMMUNITY CENTRE, PANKHA ROAD, JANAK PURI

NEW DELHI

 

Complaint Case No.  892/07

 

In the matter of:

 

1.   2.   3.	Shri Mohan Prasad (Since Deceased through LRs) Shri Yogesh S/o Late Mohan Prasad Sunita D/o Late Mohan Prasad Anita D/o Late Mohan Prasad All residents of: D-97, Loni, Ghaziabad Pin Code-201102	Complainants
	Versus
1.         2.	Employee State Insurance Corporation ESI Head Quarter Panchdeep Bhawan, C.I.G. Marg New Delhi-110002   Employees State Insurance Hospital Basai Darapur, New Delhi	Opposite Parties

 

DATE OF INSTITUTION:         JUDGMENT RESERVED ON:               DATE OF DECISION      :

23.10.2007 03.12.2021 13.12.2021

 

 

Ms. Sonica Mehrotra, President

Ms. Richa Jindal, Member (Female)

Mr. Anil Kumar Koushal, Member (General)

Order passed by Ms. Sonica Mehrotra, President

 

 

ORDER

1. Facts of the complaint as culled out by the complainant are that he was posted as Chowkidar with OP1 and by virtue of his employment with OP1, he was the beneficiary of medical services rendered by OP2 under the scheme of OP1 for which he was paying contribution towards membership fees of OPs for availing such services. Therefore, he was a “consumer’’ within the meaning of section 2(1)(d) of CPA 1986, Consumer Protection Act (The Act). The events unfolded in as much as the complainant’s minor son name Monu aged about 13 years was having stomach ache on 22.06.2007 and was taken to surgical OPD of OP2 on the said date where he was given a week’s medication and was sent back On 23.06.2007, The complainant’s son fell down in the bathroom in his house and was taken to emergency orthopedic ward of OP2 by the complainant where the doctors of OP2 prescribed one  injection and a tablet and few x-rays were taken between 23.06.2007 and 25.06.2007, when he was admitted with OP2 and on 26.06.2007 one rod was fixed in his leg and was discharged without being given any treatment for the severe stomach ache that the complainant’s son was suffering from all through this period. The very next day, the complainant’s son again was rushed to emergency ward of OP2 by the complainant for severe stomach ache, but the complainant was made to run from one wing of OP2 to the other by its doctors and at last his son was admitted in ward no 10 of OP2 but was simply administered glucose and was sent home with threat given to the complainant by doctors of OP2 not to bring his son again and again. However, on 28.06.2007 at about 2:30 pm, the complainant’s son was again taken in the surgery department of emergency ward of OP2 but was admitted only at 5:30 pm that is after 3 hrs and thereafter 4 hrs later at 9:30 pm, he was taken to the OT and at about 3:30 am, of 29.06.2007, he was declared dead which information was given to the complainant by police. The complainant has therefore alleged grossest kind of negligence on the part of doctors of OP2 and incorrect diagnosis and procedure followed by them which caused his son’s death and has attributed the same to deficiency in treatment and administration as well as medication given by doctors of OP2 to his son. The complainant has alleged that Dr. J.P. Singh was the team leader, but he and his teammates failed to perform their duties and were negligent during and after his son’s operation. The complainant has further stated that given the disrepute of the OP2, he had made a written complaint to the Director of OP2 and on his complaint a departmental enquiry was initiated against the erring doctors. The complainant has further submitted, that he had also filed a criminal complaint against OP2’s doctors for having killed his younger son due to which the complainant‘s wife has lost her sanity and such loss of a child cannot be compensated and would cause lifelong mental agony, loss of love and affection and a bright future of an intelligent boy was put an end to by OPs doctors. The complainant has alleged involvement of doctors of OP2 in tampering with post-mortem report (PMR) and case history of his deceased son and that he was never given the PMR of his son which he apprehends has already been tampered with. Therefore, by way of the present complaint, the complainant has prayed for compensation of Rs. 9,00,000/- (nine lakh) along with interest @ 18% p.a., against OPs for causing death of his minor son due to gross negligence on the part of treating doctors of OP2.
2. The complainant has attached copies of medical history of his son while he was under treatment at OP2 and copy of complaint made by the complainant against doctors of OP2 to the Director of OP 1. 
3.  Notice was issued to OPs vide order dated 23-10-2007. OPs entered appearance and filed joint written statement vide which they made preliminary submission to the effect that OP1 is a body corporate formed under Section 3 (2) of Employees State Insurance Act, 1948 which provides sickness, maternity , disablement and dependents benefit to its employees covered under the scheme and since complainant was an employee of OPs and not an ESI beneficiary within the meaning of ESI act  and had availed of free of charge services from OPs who did not charge any sum from him, he was not a consumer within the meaning of section 2(1)(d) of CPA 1986 to seek any relief against OPs as services rendered by OPs did not fall within the ambit of section 2(1)(o) of the Act. OPs took the defence that there was no negligence or deficiency of service on the part of its doctors in treating the son of the complainant as all doctors of OP2 are highly qualified, dedicated, skilled, competent and were duly involved in the treatment of complainant’s son with due diligence, care and attention exercising skill and knowledge to deal with his medical condition. The OPs urged that the complainant has not brought any expert evidence on record to show or prove negligence or incompetence of the doctors as alleged by him and therefore cannot hold them accountable for the same. Facts as laid down by OPs in their defence are that the deceased son of the complainant was brought to the surgical OPD of Unit-1 of OP2 on               22.06.2007 with complaint of swelling of glands medically diagnosed as inguinal lymphadenopathy and no complaint of stomach ache was made, therefore, no medication for it was advised. Symptomatic medication for reported problem was given to him. On the next date, that is, 23.06.2007, the complainant’s son was brought to casualty ward of OP2 at around 3:40 pm, with history of fall in bathroom and complained of pain in his right hip for which he was admitted in orthopedic emergency ward of OP2 at 5:30 pm, where he was thoroughly examined by expert team of doctors and after proper investigation by qualified orthopaedic doctors, he was diagnosed with soft tissue injury in his right hip, and was advised complete bed rest and appropriate medication was given during his period of admission from 23.06.2007 to 26.06.2007 with OP2. During this entire period of admission, the complainant’s son never complained of any stomach pain. Repeated x-rays were done by doctors of OP2 to rule out any bone injury in complainant’s son’s body. He was discharged on 26.06.2007, after applying Thomas Splint in his injured leg and his condition at the time of discharge was satisfactory. The following day that is on 27.06.2007, the complainant’s son was again brought in to the casualty ward of OP2 with complaint of vomiting and fever and was kept under observation in medical emergency ward where he was administered injections, tablets and syrup for the reported problem, as well as for dehydration and since he did not require admission, he was not admitted on 27.06.2007 and OPs emphasized that there was no complaint of any stomach ache made by complainant’s son on this date too. However, when the complainant’s son was brought to the casualty ward of OP2 on 27.06.2007 at 2:35 pm, he was sick, febrile and toxic with pulse rate of 120/mn and Blood pressure of 100/70 and was complaining of abdominal pain and distention, fever with repeated history of road traffic accident 10 days ago and diagnosis of acute intestinal obstruction was made by the CMO of OP2 on duty. The general condition of complainant’s son was poor with diffused tenderness all over abdomen and he was administered glucose, antibiotics and pain killers and was referred to surgical casualty for further management at around 4:15 pm, on the said date. The complainant’s son was put on IV fluids, antibiotics and pain-killers and blood test & other investigations including x-ray and ultrasound were carried out after which a provisional diagnosis of acute abdominal pyoperitoneum with gastritis? and septicemia was made and decision to undertake urgent surgery in the form of exploratory laparotomy of the abdomen was planned by the qualified team of doctors of OP2. Considering the poor general condition of complainant’s son and high risk involved in the surgical treatment, the same was discussed and explained to the parents of the deceased boy and complications involved in the surgery after which a written consent was given by complainant and his wife for undertaking surgery of their son being in knowledge that their son could die during the operation. Only after taking appropriate higher risk consent of the complainant and his wife and having explained the consequences of surgery & anaesthesia, the complainant’s son was taken to OT where he was operated for acute abdomen by the surgeon of OP2 under the supervision of head of surgical unit. During surgery, 100 ml serosanguinous toxic fluid was found in the peritoneal cavity of complainant’s son but no perforation was detected. The bowel loops were however distended and after thorough cleaning of the peritoneal cavity, the abdomen was closed. But while the operation was in progress, the complainant’s son developed severe tachycardia, (high heart-rate) for which immediately appropriate injection were given to improve the heart rate and blood pressure of complainant’s son. However, given the pre-operative and intra operative critical condition of complainant’s son, he was put on life support system (Elective ventilation) in ICU at which time his pulse rate and blood pressure were not normal. The poor progress of complainant’s son was duly explained by the attending doctors to the complainant and his wife and in spite of supervision of anesthetist, complainant’s son suffered cardiac arrest at around 3 am. CPR was started and injections were given but the complainant’s son could not be revived due to toxicity and preoperative serious condition and therefore, despite best efforts by the expert team of doctors of OP2, he could not survive and was declared dead at around 3:30 am on 29.06.2007. In para-wise, rebuttal to averments made by the complainant in his complaint against OPs, OPs while admitting complainant being employed as chowkidar with OPs submitted that by virtue of his employment complainant did not pay any contribution towards membership fee of OPs to avail of medical benefits since ESI corporation does not charge any money from its employees for medical facilities and does so only on compassionate and humanitarian grounds. OPs vehemently denied any complaint of stomach ache made by complainant’s son on 22.06.2007, and submitted that he was diagnosed with left inguinal lymphadenopathy for which he was given proper and prescribed treatment/medication for the next five days. OP submitted that complainant had brought his son again on 23.06.2007 to casualty ward of OPs at 3:40 pm, with history of fall in the bathroom and pain in his right hip for which he was admitted at ortho emergency ward at 5:30 pm and after investigation, it was diagnosed to be a soft tissue injury and was prescribed complete bed rest with medication. There was no complaint of stomach ache this time as well as is evident from the case sheets available with OPs. OP submitted further that complainant’s son developed fever in the evening of 24.06.2007 for which standard paracetamol medicine was given and temperature was brought down to normal and complainant’s son was alright when he was examined by ortho specialist of OP2 and a repeat x-ray ruled out any bone injury. The next day that is on 26.06.2007 the complainant’s son was thoroughly examined and x-rays reviewed with prompt treatment given to him by expert team of 10 doctors of OPs and nurses round the clock in ortho emergency., but during this entire period, the complainant’s son never complained of any stomach ache which explains why no medication for the same is reflected in any of the prescriptions placed on record for this period nor are there any records for the said allegation/complaint between 22.06.2007 to  26.06.2007 placed on record by the complainant. OPs urged that the complainant’s son was discharged in satisfactory condition after applying Thomas Splint in the affected/injured leg for relieving pain. OPs while admitting having administered glucose to complainant’s son on 27.06.2007 when he reported unwell and thereafter send back, denied any complaint of stomach ache made by either complainant’s son or the complainant on the said date. OP submitted that on 27.06.2007, complainant’s son was brought to casualty ward of OPs with complaint of fever and vomiting but not stomach ache and was administered Injection perinorm, Pan-40 and saline for dehydration and vomiting and was advised complete bed rest, but did not require admission in hospital. The OPs, while admitting having taken complainant’s son to casualty on 28.06.2007 at 2:30 pm and from there to casualty surgery department and finally to OT at 9:30 pm on 29.06.2007 denied the allegation of the complainant that the death of his son was informed at 3:30 pm by police. OP stated that at the time of admission, complainant’s son was sick, febrile and toxic with pulse rate of 120/mn and low blood pressure and at 2:30 pm on the given date, he complained of abdominal pain and distention, fever following RTA ten days ago. He was diagnosed as a case of acute intestinal obstruction by the CMO of OPs and his general condition was poor but the complainant and his son were hiding true facts from the attending doctors claiming injury on right hip due to fall in bathroom on 23.06.2007 and later on 28.06.2007 complaining of abdominal pain due to RTA ten days ago. OPs denied allegation of negligence or deficiency in service or administration on their part with respect to complainant’s son’s treatment and urged that despite best efforts, expertise and all reasonable steps the complainant’s son could not be saved who lost his life to cardiac arrest post surgery due to poor preoperative condition of health and there was no correlation between surgery and cardiac arrest suffered by complainant’s son post and despite proper surgical procedure performed. OPs urged that to prosecute a medical professional for negligence under law it must be shown that medical professional failed to do something in ordinary prudence, facts and circumstances. OPs rebutted allegation leveled by complainant against doctors of OP hospital and urged that all doctors involved in medical treatment of complainant’s son are highly competent and prescribed treatment to him after obtaining a proper written consent from the attendant of complainant’s son and in view of unfortunate death of complainant’s son OPs have already paid an  ex-gratia sum of Rs. 1,00,000/- (one lakh) to the complainant on humanitarian and compassionate ground which should not be construed to have been paid for any negligence but is only out of sympathy. OPs denied any inadequacy in quality, nature and manner of performance which was required to be maintained under law or that there was any negligence on the part of treating doctors which caused death of complainant’s son which actually happened due to toxic and poor pre-operative condition of complainant’s son which the complainant was well aware of, as well as complication/consequences of the operation which he was duly apprised of on basis of which he has given his written consent. OPs denied any tampering with Post-mortem report or case history reports of complainant’s son and averred that they are government hospital and do not indulge in such acts. Lastly, OPs denied claim of Rs. 9,00,000/- (nine lakh) made by the complainant for compensation as non-maintainable and stated that ex-gratia sum of Rs. 1,00,000/- (one lakh) has already been paid to complainant by OPs as token of sympathy and not on account of negligence by OPs. By admitting that the deceased son of complainant was a high risk case and even otherwise every surgery involves risk, OPs urged that complainant therefore cannot throw the blame on OPs in absence of cogent and reliable expert evidence. For the defence so taken, OPs prayed for dismissal of complaint. OPs have attached copy of OPD slip, case sheets, casualty register slip, medical report, laboratory requisition slip, consent letter and death report all pertaining to complainant’s son treatment progress report bed head ticket remarks etc., during his admission with OP hospital in support of version adopted.
4. Rejoinder in rebuttal to defence taken by OPs in written statement was filed by the complainant wherein complainant inter alia submitted that even if he was not paying any fees to OP for services, he was serving them and it is to be assumed therefore that OPs would not charge any money for welfare and the very reason why OPs paid compensation to complainant on compassionate ground is because the complainant was physically serving them. The complainant relied upon charge-sheets issued against the doctors of OP2 by Director General (Vigilance) in due course of departmental enquiry in which charges were framed against Dr. Mukesh Chugh, (orthopedic specialist), Dr. A.K. Dawar, (orthopedic specialist),                  Dr. J.P. Singh, specialist (surgery) and Dr. B.P. Singh, specialist (anesthesia). The said doctors were found/held guilty of failure to attend to patient and exhibit of negligence and lack of devotion to duty by ESIC HQs office committee comprising specialist (Surgery), specialist (Ortho) both of ESI hospital and Director (Inspection) ESIC who gave finding to the effect that there was delay in diagnosis and consequential delay in giving treatment to complainant’s son, poor documentation, and no visits made by senior specialist to examine or treat this seriously ill patient, absence of experienced/senior doctors and render their specialized skill and allowing inexperienced resident doctors to manage such a case. Further, the committee observed that progress notes of ortho procedure were not written on daily basis nor were daily records available, no reports of x-rays taken or ward rounds made have been placed on record by specialist of OP hospital and no senior surgeon /anesthetists were present in ICU to see the patient despite his critical condition. Despite being high risk procedure of exploratory laparotomy, it was given by senior specialist to inexperienced resident doctors. Therefore, all co-doctors were held to have acted in-violation of clause (ii) of sub rule (i) of rule 3 of CCS (Conduct) Rules 1964 applicable to ESIC employee under Regulation 23 of ESIC (Staff and conditions of service) Regulation, 1959. The complainant has filed copy of memorandums dated 26-07-2007 issued against all four doctors in question of OP2 by the OP 1 Head quarters’ office along with article of charge framed against each one of them and statement of imputation of misconduct in support of charges framed as well as observation/finding of the Committee constituted for conducting detailed enquiry on all four doctors.
5. Evidence by way of affidavit was filed by both parties exhibiting the respective documents relied upon by each one of them. The complainant emphasized that in view of the charge-sheets issued by OP1 against its own doctors of OP2, the negligence of OPs stand proved beyond doubt. Per contra OP in their evidence apart from reiterating the defence taken and exhibit of documents relied upon questioned as to how details of a domestic enquiry initiated by OP1 could come into possession of the complainant as the same could not have been obtained by him officially.
6. Written arguments filed by the complainant by way of which the complainant inter alia emphasized that the liability of OP’s has been proved beyond doubt as OP1 has itself issued memos , charge-sheets and given adverse findings against the erring doctors of OP2 and held them guilty under ESIC Regulations 1959. Written arguments were filed by OP reasserting the defence taken in the written statement as well as evidence.
7. Both parties also submitted case laws in support of their respective grievance/defence and rulings passed to that effect.
8. After completion of pleadings, the previous bench of this Commission (then forum) vide order dated 11.08.2010 directed that the case file be referred to a medical board for expert opinion and accordingly the case file was sent to Deen Dayal Upadhyay Hospital (DDUH) for seeking medical opinion vide order dated 28.09.2011. The concerned hospital sent its medical opinion dated 31.08.2012 given by committee of four doctors comprising chairman, orthopedic surgeon, physician & anesthetists of the said hospital concluding that the complainant’s son (referred to as patient) was treated according to his presentation of illness and there does not appear to be negligence on the part of treating doctors of OP2 . The said opinion was placed on record of this Commission on 07.09.2012. Thereafter, the matter was posted for oral arguments which were heard by the then bench on 26.07.2017 after which the matter was adjourned on various dated between August 2017 till January 2020 after which there was vacant position in the bench and Covid pandemic hit India in March 2020 onwards due to which work came to a staggering halt due to lockdown and order could not be passed. On the present bench, taking charge and post quorum completion on 01.11.2021, the matter was fixed for final arguments on direction issued by Hon’ble Delhi High Court in writ petition civil no. 12490 of 2021 to hear the matter on 12.11.2021 on which date the complainant filed LRs substitution application for bringing on record the LRs of the complainant who had died on 12.05.2020 and death of his wife as well on 12.10.2021. The said application since unopposed by OP and procedural was allowed by this Commission and the LRs were taken on record. To the specific query put by the Bench of the Commission to the OP pertaining to objections if any, to the memorandum, charge-sheet and findings of the disciplinary committee of OP1 against the doctors of OP2, counsel for OP stated that the memos dated 26.07.2007 issued by OP1 against the doctors in question were in the nature of initial enquiry where charges were framed but it was not the final conclusion/culmination of the enquiry and findings and further stated that out of the four doctors some were exonerated from the charges framed and sought one week’s time to place on record the final report of the disciplinary /enquiry committee. The matter was accordingly posted for hearing on 29.11.2021 on which date counsel for OP filed list of documents inter alia copies of orders dated 06.11.2009, 30.11.2010 and 02.12.2014 passed by Director General Head Quarters ESIC (OP1) & Chairman of Standing Committee of OP1 respectively against doctor B.P Singh in dismissing his appeal against the initial order , OPs also filed copy of order dated 06.11.2009 and 01.12.2014 passed by the Director General OP1 and Chairman of standing committee OP1 respectively by way of which initial order dated 06.11.2009 passed against Dr. J.P. Singh for imposition of penalty was set aside by order dated 01.12.2014. OPs further placed on record copy of order dated 20.08.2015 passed by Director General OP1 exonerating Dr Mukesh Chugh, and Dr A.K. Dawar charges levelled against him vide memo dated 26.07.2007. To the objection raised by OP of complainant not being an ESI beneficiary within the meaning of ESI Act but an employee of the corporation and therefore not a consumer within the meaning of section 2 (1)(d) of the CPA 1986 as he and his family by virtue of his employment with OP1 was availing free medical care and services, the complainant was directed by this Bench to submit proof of his employment with OP1 while order was complied with on the hearing held on 03.12.2021 on which date the counsel for the complainant submitted the copy of ID card as proof of employment with ESIC i.e. OPs. Even if it is assumed for a moment for the sake of argument that the OPs did not charge any amount from the complainant, it being a government hospital, it has been repeatedly held in catena of judgment after the landmark judgment of Indian Medical Association Vs V. P. Shantha (1995) 6 SCC 651 passed by Hon'ble Supreme Court that government hospitals are covered under CPA. The ratios has been consistently followed by Hon'ble National Commission in Royal Prepality Great Hospital, II (2016) CPJ 639 (NC), Shajahan vs Sugonthi David & Ors., I (2019) CPJ 12 cases (CN) Kerala, Sarvodya Hospital vs N.K. Srivastava, IV (2016) CPJ 691, Shoda Devi vs DDU Hospital, II (2019) CPJ 12 (SC) and Alka Srivastava vs Base Hospital, IV (2015) CPJ 592 (NC). More specifically the Shantha decision was later applied in a subsequent decision in Kishore Lal Vs Chairman ESIC I (2008) CPJ 13 (SC) in CA no. 4965 of 2000 decided on 08.05.2007 in respect of treatment at an ESI hospital after which judgment there is no escape from the conclusion that the complainant was the consumer of OPs, he being employee of ESIC i.e. OP1 and OP2, the hospital in question been funded by OP1. The Hon'ble Supreme Court in subsequent case of Senior State Medical Commissioner vs Jasveer Chand in FA no. 1054/2014 decided on 01.04.2015 also held that by virtue of section 75(3) of ESI act, the jurisdiction of Consumer Fora is not barred.
9. We have heard the arguments / rival contention forwarded by both parties and have thoroughly perused the case file and applied a judicial mind to the facts and documents placed on record. On perusal of the entire record of the case, the pleading of the concerned parties, their respective affidavit and evidence and written as well as oral arguments forwarded by them, the case now falls for adjudication / verdict and we therefore proceed to record our observation and finding overall merit of the case as would appear in the forgoing and following paras of this order.
10. The factum of death of complainant’s minor son at OP2 hospital on                  29.06.2007 post surgery is not in dispute. The dispute arose as complainant alleged medical negligence, lack of duty of care expertise and reasonable skill of attending doctors all of which contributed/led to his son’s untimely demise. The medical records viz OPD ticket, prescriptions progress report records filed by both parties reveal that when complainant’s son reported at OP2 hospital on 22.06.2007, he was diagnosed with right inguinal adenopathy and was prescribed medication accordingly and subsequently, when he approached OP2 on 23.06.2007, he had had a fall injury trauma in his right hip and was referred to orthopaedic department of OP2 after prescribing pain-killers and remained admitted from 23.06.2007 to 26.06.2007 during which period temperature, pulse and urine were monitored and were found to be in normal levels except on the night of 24.06.2007 around 7 pm when he developed temperature 102 degree Fahrenheit and protocol medication of paracetamol was given. Otherwise, standard protocol medication by way of pain killers and energy tablets were given to him and was discharged                        on 26.06.2007 with Thomas splint affixed on his right leg. There was no record of any complaint of stomach ache or any meditation/treatment accorded for the same to him between 22.06.2007 to 26.06.2007. However, when the complainant had brought his son to OP again on 26.06.2007 with case of vomiting and fever and gastritis?, he was diagnosed by doctors of OP2 to be suffering from acute intestinal obstruction and was urgently referred to surgery after medication and his admission records dated 28.06.2007 reveals diagnosis of pyoperitoneum which is puss in the peritoneal cavity and purulent inflammation of peritoneum and a note of old blunt trauma injury was made on the said record. Further, progress record notes dated 28.06.2007 reveal that the complainant’s son was suffering / complaining of moderate to severe stomach pain since last three days which means that he was having stomach pain since 25.06.2007 or so while he was under admission with OP2. Further, complainant’s son was also diagnosed with acute distended abdomen and was treated surgically by way of exploratory laparotomy under GA with due consent and during surgery , 100 ml serosanguineous fluid (blood and serum thin watery fluid pink in color with RBCs present) was found in his peritoneal cavity                          on 28.06.2007 and he was deteriorating fast and poor prognosis was revealed to his relatives who had given consent for the surgery and lastly he was put on ventilator support but could not be revived and died at 3:30 am on 29.06.2007 after suffering cardio respiratory arrest. The cause of death as per the death report form dated 29.06.2007 was given as septicaemia. The post mortem report is not on record, despite order passed to this effect by this commission directing the OPs to place the same on record. The complainant had registered a written complaint with ESIC for conducting due enquiry into the cause of his son’s death in respect to which the complainant has filed and relied upon detailed departmental enquiry by day which the doctors in question were issued memorandums in the nature of so-called notice dated 26.07.2007 and were charge-sheeted by the disciplinary committee headed by the Director General ESIC. As per these records, memos were issued by director General of OP1 to all four doctors by way of show cause notice dated 26.07.2007 for conducting enquiry under regulation 14 and Para 3 of third schedule of ESIC (staff and conditions of service) regulation 1959 for misconduct / misbehavior and charges of negligence , lack of devotion to duty in violation of code of conduct were framed against them and a committee of four doctors was constituted to conduct enquiry against them comprising orthopedic, surgeon, Director (inspection ESIC’s statements were recorded and report submitted , observations made by the committee in the nature of findings are indicative of glaring lapses on the part of treating doctors. The report had dealt exhaustedly in depth and analyzed the treatment record of complainant’s son filed/relied upon by OPs in their defence. The committee observed that no proper records were maintained for him from 25.06.2007 to 26.06.2007 and it was questioned why Thomas Splint was not put in his right lower limb prior to discharge during his admission from 23.06.2007 to 26.06.2007. No extra reports are mentioned in the clinical notes or ward round notes, no attendance or supervision done by senior doctors/surgeons/anesthetists recorded despite serious condition of the patient. Overwriting of date on OPD ticket where 27.06.2007 was overwritten as 26.06.2007 and denial by each and every doctor on duty for this given date & document. The committee has given its findings against the treating doctors as delay in diagnosis and consequential delay in giving treatment, poor documentation and no visits made by senior specialist despite such a serious case. It further noted that senior anesthetists was absent too in surgery department on 28.06.2007. Here it is imperative and pertinent to deal with individual case of all four doctors namely Dr. B.P. Singh, Dr. J.P. Singh  Mukesh Chugh, Dr. A.K. Dawar with respect to the initial report/charge-sheet given by the enquiry committee under the supervision of Director General and subsequent orders issued by the Director General of OP1. In so far as report against Dr. B.P. Singh, Specialist Gr. II (Anesthesia) is concerned, the initial investigation and finding by the enquiry committee in its report dated 06.07.2007 were to be effect that the doctor concerned was found absent from surgery department on 28.06.2007 when complainant’s son was brought at around 2:50 pm in the surgery department for abdominal pain and distention since last seven days. Despite, seriousness of case, Dr. Singh did not himself come to the hospital to render his specialized skill in the management of such a critical case but instead allowed his junior inexperienced resident doctor telephonically to manage such a case and therefore, the case was poorly managed in as much as, the patient who was operated upon between 11:30 pm on 28.06.2007 and 1:30 am on 29.06.2007 died two hours thereafter at 3:30 am and therefore he was charged with negligence and lack of devotion to duty under Clause (II) of sub rule (I) of rule 3 of CCS (conduct) Rules 1964. The said order, was challenged by Dr. B.P. Singh before the Vigilance Department of OP1, but it was observed vide order dated 06.11.2009 passed by Director General (Vigilance) that the said doctor failed to attend the patient in hospital despite being on call duty as admitted by Dr. B.P. Singh himself and despite receipt of information from his senior resident Dr. Gourav Katyal  who informed him about the gravity of the case even then he preferred to give instruction telephonically to manage such a case telephonically and has failed to clarify why he avoided to reach the hospital even in such an emergency when he was on call duty and was duty bound to come to the hospital and to attend to such a patient on information from doctor who had examined the patient. The said order further observed that his failure in not reporting to duty despite information about severity of the case and despite his being on call duty is not justifiable in any manner, when he was under obligation and duty bound to attend a case personally and had he been present to manage the complication like tachycardia in better way, post operation scenario may have been different. It was therefore, ordered by the said committee that a penalty of stoppage of increment for three years without cumulative effect be imposed on Dr. B.P. Singh. The documents on record placed by OP further reveal that the said doctor preferred an appeal against the said penalty order dated 06.11.2009 before Secretary, Labour and employment, Government of India and Chairman Standing Committee ESIC. However, the appeal was dismissed by the concerned authority observing that the actual position of the case was that the statements of Dr. Gourav Katyal and of Dr. B.P. Singh himself recorded on 03.07.2007 before the committee constituted for preliminary investigation in the case of death of complainant’s son are explicitly clear in regard to specialist being on call duty on 28.06.2007 but Dr. B.P. Singh was absent and instead instructed his senior resident doctors telephonically to attend the patient and it was observed that had he been in the OT on the said date, he could have used his specialized skill to save the child. The records further reveal that   against the said order, Dr. B.P. Singh sought to take legal recourse by filing O.A. no. 3916/2011 before Hon’ble CAT, Principal Bench New Delhi in which case , the Hon’ble CAT vide order dated 09.01.2014 issue direction to the competent authority to decide the appeal expeditiously as possible . In compliance of the said order of CAT, the Chairman, Standing Committee OP1 vide order dated 02.12.2014 after dealing with the enquiry reports on fact finding pertaining to death of Complainant’s son observed that the charge-sheet against Dr. B.P. Singh was issued only after a detailed fact finding regarding death of complainant’s son who was under treatment in OP2 from 23.06.2007 to 29.06.2007. Further, the enquiry reports filed by the committees are based on depositions, documentary and oral evidences on the basis of which charge-sheets were issued and it is clear from the records as well as call duty roster for the month of June, 2007 and the committee member deposition that Dr. B.P. Singh was on call duty on 28.06.2007. Vide the said order dated 02.12.2014, after examination of all issues and records, the competent authority rejected the appeal of Dr. B.P. Singh for waiver of penalty as being without merits. With respect to the conduct of Dr. J.P. Singh, posted as specialist (surgery), as per sequence of events and examination of case papers and recording of statement of concerned persons, the initial investigation committee vide report dated 26.07.2007 made adverse observations against the concerned doctors in as much as no daily case records/progress presorts of ortho notes made , no written report or record on condition of complainant’s son between 25.06.2007 and 26.06.2007 or entry of injections given and x-rays taken during the period of admission. Further, there were no notes about the ward round made by specialist and it was established that no senior surgeon has seen the patient before surgery on 28.06.2007 or even in ICU when he was serious, nor was any senior aneasthesist present during the operation or post-surgery in ICU and that there were contradictions in statement regarding presence of Dr. J.P. Singh in operation theater due to the reasons above the committee had observed that there was delay in diagnosis and treatment, poor documentation  no visit made by senior specialist and the committee further observed that the records reveal that doctor concerned did not attend to complainant’s son despite information from his senior resident at about 10 pm about his condition whereas he was duty bound to examine the patient and assess his medical condition before deciding or recommending surgery, but he telephonically ordered for a surgery to be performed on complainant’s son and could not prove that he was present during the conduct of surgery from beginning till the end. Further the result of surgery also showed that it was conducted on presumption only in the absence of any findings to substantiate requirement for such a surgery, therefore the committee held Dr. J.P. Singh guilty of negligence and lack of devotion to duty. Against the said report /charge-sheet, Dr. J.P. Singh preferred an appeal before the Director General (Vigilance). The Competent Authority observed that the charge against Dr. J.P. Singh of failure to examine the patient properly to assess his medical condition before advising the senior resident to conduct surgery stood proved on the basis of oral and documentary evidence adduced during the enquiry from the statements of eye-witnesses who were in the OT on 28.06.2007 and their cross-examination. Further, the Committee & the Competent Authority observed that as per the post-mortem report of complainant’s son, the cause of his death was pulmonary infarction consequent to thrombo-embolism which is a known-complication occurring after a prolonged period of immobilization and when Dr. J.P. Singh had himself mentioned this being the cause of death and was in the know of this complication, there should have been suitable arrangements to manage it which were not in place and therefore a penalty of stoppage of increment for three years without cumulative effect was imposed on                       Dr J.P. Singh. The said order was challenged by Dr. J.P. Singh before the Chairman Standing Committee ESIC which in the light of confirmation by number of witnesses prove that Dr. J.P. Singh did examine the patient in the OT before the surgical procedure was commenced and was witness to the surgery as well as that he had visited the patient in ICU, vide order dated 01.12.2014 set aside the vigilance order dated 06.11.2009 passed by the disciplinary authority. With respect to Dr. Mukesh Chugh, specialist       (orthopaedic ), as per the sequence of events, examination of ortho notes etc. , the initial enquiry committee observed that ortho notes reveals that neither progress reports nor daily notes were written on daily basis during admission of complainant’s son between 23.06.2007 to 26.06.2007 barring initial notes written on 23-06.2007 and only one entry of voveran injection is made on 24.06.2007 and no written records of patient condition for 25.06.2007 or 26.06.2007 is available . Further, it was questioned as to why Thomas Splint was put at the time of discharge instead of during the admission to immobilize the patient’s right lower limb. Further, none of the x-ray reports has been placed on record. The HOD (ortho) stated that the hospital does not have any specific routine of ward rounds to be made during the day by specialist which properly explains why no senior surgeon had seen the patient (complainant’s son) either on 22.06.2007 in OPD nor in surgery on 28.06.2007 in OT or in ICU when he became critical. In fact, contrary to Dr. Chugh’s statement that he had seen complainant’s son in OPD (surgery) and had advised him for repeat x-ray right hip he was actually attended by Dr. Prakash and diagnosed with left inguinal adenitis and after prescription of medication was sent home. Therefore, despite 22.06.2007 being Friday when OPD was functional and specialist were duty bound to see patients, none saw complainant’s son. Next day, on 23.06.2007 when he was brought to casualty again, he was referred to ortho (casualty) where he was put on medication and complete bed rest remained in ortho casualty ward till 26.06.2007. The committee further observed that there was no entry of any medication prescribed on 23.06.2007 and 26.06.2007 nor any document pertaining to specialist visit in casualty ward. Further, there was no order recorded for giving Thomas Splint to immobilize the lower limb of the patient and more so it was questionable why it was being put in a case of diagnosed a soft tissue injury by ortho doctor. Further, there is no evidence of Dr. Mukesh Chugh having taken rounds of the ward and examining the patients. The committee thus found                        Dr. Mukesh Chugh guilty of negligence and lack of devotion to duty vide the charge memo dated 26.07.2007. On denial of such charges by Dr. Mukesh Chugh, an appeal was preferred by him dated 24.12.2009 and 25.06.2010 before the chairman standing committee which was rejected vide order dated 09.12.2010 for which                         Dr. Mukesh Chugh had approached the Hon’ble CAT. The Hon’ble CAT vide order dated 13.12.2011 has set aside that appellate order dated 09.12.2010 and therefore appeal of Dr. Mukesh Chugh was reconsidered by the then Chairman Standing Committee ESIC and the said Enquiry Authority submitted its report dated 11.03.2013 holding articles of charge as not proven and accordingly the Director General ESIC vide order dated 20.08.2015 give his findings that the charged officer i.e. Dr. Mukesh Chugh had examined the complainant’s son apart from other patients in ortho casualty                    on 25.06.2007 and 26.06.2007 and the same was also confirmed by the complainant during enquiry and also that hip x-ray was advised by the said Doctor. Therefore, the Director General upheld the order of the enquiry committee dated 11.03.2013 and exonerated              Dr. Mukesh Chugh from charges leveled against him. Regarding the role of Dr. A.K. Dawar HOD Specialist (Orthopaedics), after detailed enquiry by the  committee constituted for this purpose , the said committee vide report dated 06.07.2007 made similar observations about his act of omission with respect to complainant’s son in the happenings between 23.06.2007 to  26.06.2007 against                     Dr. A.K. Dawar. On denial of such charges by Dr. A.K. Dawar , a regular departmental enquiry was ordered to be conducted by Additional Commissioner (NTA) who submitted his report dated 12.06.2009 holding all charges as proved against Dr. Dawar except putting of Thomas Splint in the right lower limb of complainant’s son only on 26.06.2007 and not earlier and therefore the disciplinary committee vide order dated 06.11.2009 imposed penalty of stoppage of increment without cumulative effect which order was appealed by him on 24.12.2009 and 25.06.2010 before the Chairman Standing Committee which was rejected vide order dated 30.11.2010. Dr. Dawar then approached CAT which vide order dated 13.12.2011 set aside appellate order dated 30.11.2010 and a                  de-novo enquiry into the charges framed against Dr. Dawar were reconsidered by Chairman Standing Committee ESIC as the enquiry authority vide order dated 28.02.2012 and the said committee vide report dated 11.03.2013 held that articles of charge were not proven against Dr. Dawar. The Director General ESIC in its order dated 20.08.2015 after appreciating the aforementioned documents and statement recorded of complainant during enquiry came to the conclusion that Dr. Dawar had examined complainant’s son on 26.06.2007 after having seen his x-ray reports and advised medication on discharge slip mentioning that it was a soft tissue injury and this fact was also confirmed by the complainant. Further, case sheet of other patients during the said period reveal that               Dr. Dawar had taken rounds and examined the patients in ortho ward on 26.06.2007 thereby exonerating Dr. Dawar from the charges levelled against him vide order dated 26.07.2007.
11.  The aforementioned findings of the enquiry committee with respect to the conduct of Dr. B.P. Singh and Dr. J.P. Singh have not been in their favour and inference can be drawn that the said doctors failed to diagnose or detect gravity of worsening condition of complainant’s son and there are contradictions in the records of OP2 to the fact that, on one hand, its doctors have denied any complaint of stomach ache having been reported by complainant’s son and on the other hand, progress notes dated 28.06.2007 which reveal that the complainant’s son was complaining of moderate to severe abdominal pain  since last three days but still we observe that none of the OPD records for the period 22.06.2007 to 27.06.2007 are indicative of any such complaint which seem to have been willfully omitted otherwise, it is hard to accept that acute intestinal obstruction or pyoperitoneum which is pus formation in peritoneal cavity could have suddenly developed in a day and aggravated to the extent of requiring urgent surgical intervention by way of exploratory laparotomy. This condition/complication must have been building up for quite some time in complainant’s son’s body but went undetected/undiagnosed and untreated by OPs and subsequently worsened/ complicated.
12.   The question as to how and by which principle, the court should decide the issue of negligence of a professional doctor and hold him liable for his medical acts /advice given by him/her to his patient which caused him/her some monetary loss, mental and physical harassment, injury and suffering on account of doctor’s medical advice/treatment (oral or operation) is no longer res integra and settled long back by the series of English decisions as well as decisions of Hon'ble Supreme Court. Negligence per se is defined in Black’s Law Dictionary as: conduct, whether of action or omission, which may be declared and treated as negligence without any arguments or proof as to the particular surrounding circumstances, either because of violation of statute / ordinance or because of being palpably opposed to common prudence that no careful person would have been guilty of. The classic exposition of law on this subject is first laid down in a decision of Queens Bench in the leading case of Bolam Vs. Friern Hospital Management Committee [1957] 1 WLR 582 (often referred to as the Bolam Test) in which Mc. Nair J. explained the law as:  “where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill. It is well established law that it is sufficient if the exercise the ordinary skill of an ordinary competent man exercising that particular art.” The said law laid down in Bolam’s case is consistently followed by courts worldwide as being correct principle of law known as Bolam Test.  A careful reading of Bolam case shows that the standard of ‘reasonableness’ is implicit in the test. There may be one or more perfectly proper standards; and if he conforms with one of those proper standards, then he is not negligent”. The aforesaid principle has been reiterated and explained by Bingham L.J. in his speech in Eckersley Vs. Binnie (1998) 18 Con LR 1 “Professional Man should have such an awareness as an ordinarily competent practitioner would have of the deficiencies in his knowledge and the limitation on his skill. He must bring to any professional task he undertakes no less expertise, skill and care then other ordinarily competent members of his profession would bring, but need bring no more. The law does not require of a professional man that he be a paragon combining the qualities of polymath and prophet”. The practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires. Deviation from normal practices is not necessarily evidence of negligence. To establish liability on that basis it must be shown, (1) that there is a usual and normal practice; (2) that the defendant has not adopted it; and (3) that the course in fact adopted is one no professional man of ordinary skill would have taken had he been acting with ordinary care. A doctor has a legal duty to take care of his patient. Whenever a patient visits a doctor for treatment there is a contract by implication that the doctor will take reasonable care to treat him. If there is a breach of that duty and if it results in injury or damage, the doctor will be held liable. The doctor must exercise a reasonable degree of care and skill in his treatment; but at the same time he does not and cannot guarantee cure. (cf. Halsbury’s Laws of England 4^th Edn. Vol.26 Pg.17-18).” Lord Atkin’s speech in Andrews Vs Director of Public Prosecution (1937) A.C. 576 about lack of care distinguished from very high degree of negligence to create civil liability has been followed by Hon'ble Supreme Court in Bhalchandra @ Bapu Vs State of Maharashtra AIR 1968 SC 1319 and Syad Akbar Vs State of Karnatka (1980) 1 SCC 30 holding that the negligence to be establish must be culpable or gross and not negligence merely based upon an error of judgment  The Hon'ble Supreme Court in its Three Judge Bench judgment in the case of Jacob Mathew Vs. State of Punjab III (2005) CPJ 9 SC examined the law laid down in Bolam test and held that a surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial. The only assurance which such a professional can give or impliedly be given is that he is possessed of requisite skill in that branch of profession practiced by him while undertaking the performance of task entrusted to exercise his skill with reasonable competence and this is what the person approaching him can expect. The Hon'ble Supreme Court further observed in the Jacob Mathew judgment that different doctors have different approaches, some have more radical while some have more conservative approaches. All doctors cannot be fitted in to a strait-jacketed formula, and cannot be penalized for departing from that formula. Hon'ble Lordships further observed that simply because a patient has not favorably responded to a treatment given by a doctor or a surgery has failed, the doctor cannot be held straight away liable for medical negligence by applying the doctrine of Res Ipsa Loquitur. Hon'ble Supreme Court in Martin F. D’Souza Vs Mohd Ishfaq  (2009) CPJ 32 (SC) held on lines of Lord Denning’s important observation made in Hucks Vs Cole (1968) 118 New L J 469 by Sachs LJ that “a medical practitioner was 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 of other. A medical practitioner would be held liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field”. In Derr V. Bonnev, 231 p 2d 637, Wash. 1951, the Court’s definition of negligent treatment is an excellent statement of the general definition of a physician’s legal responsibility in treatment:

1. Before a physician or surgeon can be liable for malpractice, he must have done something in the treatment of his patient which the recognized standard of medical practice in his community forbids in such cases or he must have neglected to do something required by these standards.
2. In order to obtain a judgment against a physician or surgeon, the standard of medical practice in the community must be shown and further, that the doctor failed to follow the method prescribed by that standard.
3. It is not required that physicians and surgeons guarantee results, nor that the result be what is desired.
4. The testimony of other physicians that they would have followed a different course of treatment than that followed by the defendant or a disagreement of doctors of equal skill and learning as to what the treatment should have been, does not establish negligence.

In Roe and Woolley Vs Minister of Health (1954) 2 QB 66, Lord Justice Denning said “it is so easy to be wise after the event and to condemn as negligence that which was only a misadventure. We ought to be on our guard against it, especially in cases against hospitals and doctors. Medical science has conferred great benefits on mankind but these benefits are attended by unavoidable risks. Every surgical operation is attended by risks. We cannot take the benefit without taking the risks. Every advance in technique is also attended by risks. Doctors, like the rest of us, have to learn by experience; and experience often teaches in a hard way. We should be doing a dis-service to the community at large if we were to impose liability on Hospitals and Doctors for everything that happens to go wrong.” What amounts to medical negligence on the part of medical professional has been considered by Hon'ble Supreme Court in Dr. Laxman Balkrishna Joshi Vs Dr. Trimbak Bapu Godbole AIR 1969 SC 128, Achyutrao Haribhau Khodwa Vs State of Maharashtra (1996) 2 SCC 634, Spring Meadows Hospital Vs Harjot Ahluwaliya (1998) 4 SCC 39, Indian Medical Association Vs V. P. Shantha (1995) 6 SCC 651, Poonam Verma Vs Ashwin Patel (1996) 4 SCC 332, State of Haryana Vs Smt. Santra (2000) 5 SCC 182, Savita Garg Vs Director, National Heart Institute (2004) 8 SCC 56, ratios of which are not being referred to unburden our opinion but certainly legal position settled therein would be our guiding force.

In the landmark judgment of Kusum Sharma and Ors. Vs Batra Hospital and Medical Research Centre and Ors. I (2010) CPJ 29 (SC), the Hon'ble Supreme Court, while deciding whether the medical professional is guilty of medical negligence held that following well known principles must be kept in view interalia:

1. Negligence is the breach of the duty exercised 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
2. negligence in an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not negligence merely based upon error of judgment
3. the medical profession is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable dergree of care neither highest nor very low and competence to be judged in light of particular  circumstances of each case
4. a medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
5. in the realm of diagnosis and treatment there is a scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor
6. the medical professional is often called upon to adopt a procedure which involves higher elements of risk but which he honestly believed as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his / her suffering which did not yield desire results may not amount to negligence
7. negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.
8. It would not be conducive to the efficiency of the medical profession if no doctor could administer medicine without a halter round his neck
9. It is our bounden duty and obligation of civil society to ensure no unnecessary harassment or humiliation of medical professionals so that they can perform their professional duty without fear and apprehension
10. The medical practitioner at times also have to be saved from such a class of complainant’s who used criminal procedure as a tool for pressurizing medical profession / hospital for extracting uncalled for compensation which malicious proceedings deserve to be discarded
11. Medical professionals are entitle to get protection so long as they perform their duties with reasonable skill and competence in the interest and welfare of the patient   which should be paramount

The Hon'ble National Commission has been consistently following the settled law as aforementioned in landmark judgments passed by it on the topic of “medical negligence” viz  Pratap Singh Vs Sahib Nursing Home and Surgical Centre in F.A. no. 1038/2000, Dinesh Kaushal & Ors. Vs Dr. K.K. Khurana III (2002) CPJ 297 (NC), Mam Chand Vs. Dr. G.S. Mangat of Mangat Hospital I (2004) CPJ 79 (NC) and Deepak Kumar Satsangi (Dr.) Vs Sanjeevan Medical Research Centre Pvt Ltd. III (2016) CPJ 96 (NC) and Dr. Sanjay Gadekar Vs Sangamitra @ Sandhya Khobragade in F.A. No. 484/2015 passed on 20.05.2016.

To succinctly bring the rival contention in to focus after having exhaustively dealt with the law on medical negligence, it may be stated in brief that the complainant is alleging medical negligence on the part of OPs in treating his minor son for reported problems and negligence in pre operative care as well as failure to discharge duty of care all of which led to his son’s untimely death. In Bolitho Vs City and Hackney Health Authority (1996) 4 ALL ER 771, House of Lords held that the course adopted by medical practitioner must stand a test to reason “the court is not bound to hold that a defendant doctor escapes liability for negligence just because he leads evidence from a number of medical experts who are genuinely of opinion that the defendant’s treatment or diagnosis accorded with sound medical practice. The court has to be satisfied that the exponents of the body of opinion relied upon can demonstrate that such opinion has a logical basis. Hon'ble Justice S. B. Sinha in Malay Kumar Ganguly Vs Dr. Sukumar Mukherjee III (2009) CPJ 17 (SC) has preferred Bolitho test to Bolam test and redefined medical negligence saying that the quality of care to be expected of a medical establishment should be in tune with and directly proportional to its reputation. Hon’ble Apex Court held that the charge of professional negligence on a medical person is a serious one which 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 of for any mischance / misadventure / error of judgment in making a choice between two options the mistake in diagnostic is not necessarily a negligent diagnosis. The decisions also says that the court should take into account patient’s legitimate expectation from the hospital or the concerned specialist doctor of due care from point of admission to his discharge and review of his condition thereafter. In P.B. Desai Vs State of Maharashtra (2013) 15 SCC 481, the ‘Duty of Care’ which a doctor owes towards his patient has been clearly explained by Hon'ble Supreme Court as follows: “once It is found that there is ‘duty to treat’ there would be a corresponding ‘duty to take care’ upon the doctor qua his patient of ethical / legal character arising in a contractual relationship. Ethical ‘duty to treat’ on the part of doctor is clearly covered by Code of Medical Ethics 1972, Clause 10 of which captions “Patient must not be neglected.” Therefore the Hon'ble Supreme Court implied by the said judgment that duty of care of treating doctor did not end with surgery but post-operative care as well. The Hon'ble National Commission echoed the said view in P.D. Hinduja National Hospital and Medical Research Vs Mrs Veera Rohinton Kotwal II (2018) CPJ 342 (NC) in which it held that “Duty of Care” does not end with surgery. The Hon'ble Supreme Court in Arun Kumar Manglik Vs Chirayu Health and Medicare Pvt. Ltd. III (2019) CPJ 1 (SC) laid emphasis on “Patient Centric Approach” and observed that “Standard of Care” as enunciated in the Bolam case must evolve in consonance with its subsequent interpretation by English and Indian Courts.

In Maynard Vs West Midlands Regional Health Authority [1985] 1 All ER 635, the words of Lord President (Clyde) in Hunter Vs Hanley 1955 SLT 213 were referred and quoted by Lord Scarman who held: “A case which is based on an allegation that a fully considered decision of two consultants in the field of their special skill was negligent clearly presents certain difficulties of proof. It is not enough to show that there is a body of competent professional opinion which considers that there was a wrong decision, if there also exist a body of professional opinion, equally competent, which supports the decision as reasonable in the circumstances.”  

A medical practitioner would be held liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field”. The Hon'ble Supreme Court in Dr. S.K. Jhunjhunwala Vs Dhanwanti Kumar II (2019) CPJ 41 SC held that negligence has to be decided on the touch stone whether the treating doctor adheres to normal practice of medical parlance and opined that suffering of ailment by the patient after surgery is one thing. It may be due to myriad reasons known in medical jurisprudence. Whereas suffering from any such ailment as a result of improper performance of surgery and that to with the degree of negligence on the part of doctor is another thing. To prove the case of a negligence of a doctor, the medical evidence of experts in field to prove the latter is required. Simply proving the former is not sufficient. Lord Clyde in Hunter Vs Hanley stated that “in the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and one man clearly is not negligent merely because his conclusion differs from that of other professional men. The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proven to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care”.

At this juncture, it is imperative to analyze the medical opinion given by the Board of doctors of DDU hospital. The medical opinion is a mere narration of sequence of events as unfolded from 22.06.2007 to 29.06.2007 and is indicative of non-maintenance of proper progress reports of complainant’s son while he was being treated at OP2 hospital during the said period. The autopsy report of complainant’s deceased son revealed cause of death as not pyoperitoneum or septicemia but bilateral pulmonary infarction which is a serious and potentially fatal medical condition and occurs due to a broken bone injury and the risk of getting it is higher in days following such injury or surgery which is actually the complainant’s son case. The medical opinion in my considered view for exonerating the doctors in question especially Dr. J.P. Singh and Dr. A.P. Singh cannot be relied upon or form basis of any judgment in the present case due to the following reasons. Firstly, it highlights absence of progress record sheets which ought to have been maintained with respect to complainant’s son during period of admission with OP2, secondly, no measures  taken to stabilize him in pre operative condition                  on 28.06.2007 find any mention in records and no time of commencement of operation is mentioned, thirdly no details of time of operation, monitoring of vitals example, blood-pressure, pulse rate, oxygen saturation, time of giving medication etc. have been recorded in operation notes by anaesthetists present in OT whereas such records are to be mandatorily maintained by anaesthetists. Fourthly, mere mention of serosanguinous fluid present in peritoneal cavity of complainant’s son as reflected in the OT notes  do not correspond to serious nature of illness presented by complainant’s son and lastly, despite deterioration of condition of complainant’s son during operation, only a brief mentioning of condition is recorded without any details. Therefore, despite noting such glaring lapses and casual stands of the attending doctors and absence of vital progress notes, the said board had proceeded to conclude that “there does not appear to be negligence on the part of doctors namely Dr. J.P. Singh, Dr. A.K. Dawar, Dr Mukesh Chugh and Dr. B.P. Singh. Curiously enough, the OPs failed to submit the post-mortem report of complainant’s son before this Commission on ground of unavailability as order sheet reveal but submitted the same to the said medical board which has also raised a considerable doubt on the conduct of OPs.

In the light of the pleadings and rivals stands of the parties dealt with exhaustedly in the forgoing paras, the question arising for consideration is whether there was any deficiency or negligence on the part of treating doctors in (i) diagnosis and treatment given to complainant’s son (ii) cause of septicemia and cardio respiratory arrest leading to death of complainant’s son and reason in autopsy report given as bilateral pulmonary infarction. For adjudication, on this point, we are guided by the judgment of The Hon’ble National Commission in Hardwari Lal v/s Dr. A K Aggarwal and Dr. Anil Kumar Aggarwal v/s Hardwari Lal (iv) (2017) CPJ 218 (NC) in which medical negligence for wrong diagnosis was alleged against the treating doctor and it was alleged that no tests were prescribed to the patient to diagnose the disease she was suffering from. The Hon’ble National Commission observed that it is trite that an error of clinical judgment does not per se amount to negligence and the true test for establishing negligence in diagnosis or treatment on the part of doctor is whether he has been proved to be guilty of such failure, as no doctor of ordinary skill would be guilty of, if acting with ordinary care. A doctor’s professional function may be divided into three phases; (i) diagnosis (ii) advice (iii) treatment. The importance of proper diagnosis cannot be undermined as the patient has so much to lose when there is a wrong or half-baked diagnosis. A diagnostic error results in the patient being denied timely effective therapy, or being administered potentially toxic, incorrect medications sometimes, leading to devastating consequences. An equally important key issue in a “right diagnosis” is the “timeliness” and “accuracy”. In certain acute situations delay of a few minutes in diagnosis and treatment may be fatal. The courts in United Kingdom in Gibbons v/s Harris (1924) (i) DLR 923 and Everett v/s Griffiths [1920] 3KB observed that the primary duty of a medical practitioner is to “diagnose the patient’s condition” by making enquiries and exercising remarkable professional skill in forming a conclusion from such enquiry and held that failure to exercise due skill in diagnosis as a result of which wrong treatment was given amounts to negligence. Therefore, it needs little emphasis that proper and timely diagnosis being the key deciding paradigm for the line of treatment of a patient anything going a miss at that stage is a critical circumstance to determine the question whether or not an error of judgment in treatment of patient tantamounts to negligence. The Hon’ble National Commission in the said judgment after appreciating and examining the prescription slips held that there was no ‘diagnostic dialogue’, held treating doctor negligent in treating the patient.  With this brief prologue on the importance of diagnosis, we advert to the facts at hand. It is manifest from the bare glance at the prescription slips, OPD tickets, admission and summary records, progress record sheets etc., that there is no noting of stomach ache problem which the complainant’s son was suffering from since 22.06.2007 and there were only pain killer medicine and injection administered to him for right hip injury from 23.06.2007 to 26.06.2007. However, suddenly on 26.06.2007 when he reported with vomiting and fever at OP2 hospital, he was diagnosed with acute intestinal obstruction and gastritics? and was urgently referred to surgery ward with diagnosis of pyoperitonium (old blunt trauma abdominal injury) and by the night of 28.06.2007, he was referred to OT for exploratory laparotomy under high risk consent and was also noted in the progress record that complainant’s son suffering from moderate to severe abdominal pain since last three days which makes its apparent that he was suffering from stomach pain during his admission with OP2 from 23.06.2007 to 26.06.2007. Therefore, from the medical records, there is neither any indication of the serious nature of ailment that the patient was suffering from when he was first brought in to OP2 nor the suspected disease and above all not even advice for conducting the basic preliminary USG or CT scan was given by OPs specially when it was a reported case of road traffic accident as per OP’s own version. It is preposterous to even assume that complainant’s son reach such a critical condition over night of pyoperitonium (pus in peritonial cavity / purulent inflammation of peritoneum) requiring urgent surgical intervention and became a high risk patient.  The Hon’ble National Commission in Pushpa Vyas v/s Dr. Sajjan Daga was dealing with complaint regarding alleged negligence in treatment of abdominal injuries due to road accident wherein lack of diagnostic test and delay in referral were alleged to have caused death of patient. The Hon’ble National Commission observed that since the hospital and the treating doctor failed to follow the basic protocol required to be followed in a road accident involving blunt injury in abdomen and chest by way of USG or a CT-scan for thorough understanding of such a case of trauma, the surgery by way of exploratory laparotomy should have been undertaking only pursuant to the said diagnostic tests and therefore, held doctor liable for act of negligence. In this regard, the Hon’ble National Commission relied upon medical literature which also specifies that physical examination findings that call for timely surgical evaluation reproduced as follows:

• History of blunt abdominal trauma, shock or abnormal vital signs
• Evidence of shock without obvious external blood loss
• Evidence of peritonitis (example: mark tenderness etc.)
• Patient who require other prolonged operative intervention (eg: orthopedic procedure)

Thus appropriate care of the Trauma Patient entails a multi-disciplinary effort with speed and efficacy with proper co-ordination of the initial core team to make quick rational decisions with thorough understanding of the case of trauma.

The Hon’ble Supreme Court in P.B. Desai v/s State of Maharashtra & Anr. Viii (2013) SLT 51=IV (2013) DLT (Crl.) 464 (SC)=IV (2013) ACC 68 (SC)=IV (2013) CCR 37 (SC)=(2013) 15 SCC 481, while discussing the doctor patient relationship and the responsibilities that emerged therefrom observed as follows:

“Such doctor-patient contract is almost always an implied contract, except when written informed consent is obtained. While a doctor cannot be forced to treat any person, he/she has certain responsibilities for those whom he/she accepts as patients. Some of these responsibilities may be recapitulated, in brief:

1. To continue to treat, except under certain circumstances when doctor can abandon his patient;
2. To take reasonable care of his patient;
3. To exhibit reasonable skill: The degree of skill a doctor undertakes is the average degree of skill possessed by his professional brethren of the same standing as himself. The best form of treatment may differ when different choices are available.”
4. Not to undertake any procedure beyond his control: This depends on his qualification, special training and experience. The doctor must always ensure that he is reasonably skilled before undertaking any special procedure/treating a complicated case.
5. Professional secrets: A doctor is under a moral and legal obligation not to divulge the information/knowledge which he comes to learn in confidence from his patient and such a communication is privileged communication.

Conclusion: The formation of a doctor-patient relationship is integral to the formation of a legal relationship and consequent rights and duties, forming the basis of liability of a medical practitioner. Due to the very nature of the medical profession, the degree of responsibility on the practitioner is higher than that of any other service provider. The concept of a doctor-patient relationship forms the foundation of legal obligations between the doctor and the patient.

41. When reasonable care, expected of the medical professional, is not rendered and the action on the part of the medical practitioner comes within the mischief of negligence, it can be safely concluded that the said doctor did not perform his duty properly which was expected of him under the law and breached his duty to take care of the patient. Such a duty which a doctor owes to the patient and if not rendered appropriately and when it would amount to negligence is lucidly narrated by this Court in Kusum Sharma and Others v/s Batra Hospital and Medical Research Centre and Others; (2010) 3 SCC 480. The relevant discussions there from are reproduced hereinbelow:

“45. According to Halsbury’s Laws of England, 4^th Edn., Vol. 26 pp. 17-18, the definition of negligence is as under:

22. Negligence- Duties owed to patient. A person who holds himself out as ready to give medical advice or treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person, whether he is a registered medical practitioner or not, who is consulted by a patient, owes him certain duties, namely, a duty of care in deciding whether to undertake the case; a duty of care in deciding what treatment to give; and a duty of care in his administration of that treatment. A breach of any of these duties will support an action for negligence by the patient.”

In the aforenoted judgment of the Hon’ble Supreme Court the first responsibility of a doctor towards the patient was not to undertake any procedure beyond his control. The Hospital could have referred the patient immediately to a higher management centre, If their basic equipment like the Ultrasound Machine was not functioning.

The Hon'ble National Commission in Srikanth Srikande Vs Sunshine Hospital II (2019) CPJ 482 NC held in a case where surgery was done without taking pre-operative safety measure and pre investigative test and death of a young patient age 36 years due to cardiac arrest that the hospital and treating doctor were jointly and severally liable for not having adhered to standards of normal medical parlance and the onus for explaining reasons for sudden development bradycardia with hypotension was not explained or supported or any documentary evidence. The Hon’ble National Commission relied upon the judgment of Hon'ble Supreme Court in Vinitha Ashok (Supra) in which the Hon’ble Apex Court observed the skill of medical practitioners, referred to the following case laws:

This court in Achyut Haribhau Khodwa vs State of Maharashtra & Ors., 1996 (SLT Soft) 1000=1996 (2) SCC 634, had occasion to examine the test for determining negligence of reasonable skill, knowledge and care in the matter of performing his duties by a medical practitioner. After referring to the decision in Bolam v. Friern Hospital Management Committee (supra), and Rogers v. Whitaker, (1992) 109 ALR 625 (though reported in 1993 Australian Law Journal Reports Vol. 67 part (2) 47), wherein the High Court of Australia has held that the question is not whether the doctors conduct accords with the practice of a medical profession or some part of it, but whether it conforms to the standard of reasonable care demanded by the law and that is the question for the Court to decide and the duty of deciding it cannot be delegated to any profession or group in the community. Thus there has been divergence of view between Bolam’s case (supra), and Rogers’s case (supra). In Sidaway vs Board of Governors of Bethlem Royal Hospital, (1985) 1 AII ER 643, the House of Lords examined the principle of Bolam’s case and had accepted it as applicable to diagnosis and treatment in England. This Court in Laxman Balakrishnan Joshi (Dr.) v. Dr. Trimbak Bapu Godbole, 1969 (1) SCR 206, has held as under:

“A person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person when consulted by a patient owes him certain duties, namely, a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give or a duty of care in the administration of that treatment.”

The aforesaid principle has been reiterated by this Court in A.S. Mittal v. State of U.P., 1989 (3) SCC 223.

In Indian Medical Assn. v. V.P. Shantha, 1995 SCC (6) 651, Hon’ble Apex Court approved the following passage from Jackson and Powell on Professional Negligence:

“The approach of the Courts is to require that professional men should possess a certain minimum degree of competence and that they should exercise reasonable care in the discharge of their duties. In general, a professional man owes to his client a duty in tort as well as in contract to exercise reasonable care in giving advice or performing services.’’ In the instant case, Srikande case facts and verdict  can be applied in as much as in the case before us, no reasons were given in progress note/record for patient developing pyoperitorium in pre-operative stage and tachycardia with hypotension post operatively and no mentioning of measures taken to stabilize the patient are mentioned. The onus of explaining the reasons for sudden development of tachycardia and septicemia and eventual cardiorestric arrest subsequent to surgery is not explain or supported by any documentary evidence. To reiterate, proper pre-operative evaluation was neither done by Dr. B.P. Singh as specialist Gr. II (anesthesia) nor by Dr. J.P. Singh specialist (surgery) and moreover proceeding with such a high risk surgery by delegating the same to inexperienced resident doctors does not amount to ‘duty of reasonable care’ ought to have been exercised in such a serious circumstance. In this regard, we deem fit to place reliance on the judgment of Savita Garg Vs National Heart Institute IV (2004) CPJ 40 (SC) in which Hon’ble Supreme Court has laid down the principle that the onus on the hospital to explain as to why a situation occurs. In the present case a patient who was taken for surgery at 11:30 pm and 1:30 am on 28.06.2007 and 29.06.2007 died barely two hours thereafter at 3:30 am on account of septicemia after having suffered cardio respiratory arrest. The onus, therefore, shift on OP2 and the treating doctors thereof to explain the reason for patient’s death. It is well settled that in a situation where medical negligence is alleged, the importance of medical record cannot be undermined. However, we have observed that medical records pertaining to complainant’s son have been poorly maintained as is evident from the documentary evidence placed before us viz medical records and orders passed against the doctors in question by director General ESIC, Chairman of standing committee ESIC and vigilance report and the casual approach of the doctors in question for not having adhered to standards of normal medical parlance is writ large for their failure to attend the patient in person despite his critical condition and despite being on call duty on 28.06.2007 and giving such a serious and complicated case despite knowledge for management to senior resident doctors as a result of which the required specialize skill that a senior specialist anesthetic and specialist surgery could not be exercised in such a case which badly required it. Therefore, it is explicable by both Dr. J.P.Singh and Dr. B.P. Singh were penalized in terms of stoppage of increment for three years with cumulative effect by Director General ESIC. The Hon’ble National Commission in Parag Girishchandra Desai Vs Dr. Ashokbhai C. Shah III (2019) CPJ 158 (NC) observed in a case of alleged medical negligence where a young patient aged 28 years complaining of fever and abdominal pain died of septicemia three days subsequent to the treatment rendered by treating doctor that it was a case of wrong diagnosis wherein the treating doctor failed to explain as to how sepsis had set in and that the duty of care which ought to have been taken was not taken. In this case the Hon'ble National Commission further observed that it is settled law in catena of judgments passed by Hon'ble Supreme Court, especially recent judgment of Maharaja Agrasen Hospital vs Master Rishabh Sharma and Pooja Sharma Vs Maharaja Agrasen Hospital I (2020) CPJ 3 (SC) wherein the Hon'ble Supreme Court held that a court is not bound by the evidence of expert, which is advisory in nature and that expert opinion is not always mandatory or binding and that the consumer for a can base on facts and circumstances of each case and the evidence placed on record, adjudicate the matter on such basis. The Hon'ble Supreme Court in Ramesh Chandra Aggarwal vs Regence Hospital Ltd. IV (2009) CPJ 27 (SC) and State of HP vs Jai Lal held that the court must derive its own conclusion after carefully sifting through the medical record, and whether the standard protocol was followed in the treatment of the patient. The duty of expert witness is to furnish the Court with the necessary scientific criteria to the facts proved by the evidence of the case. Whether such evidence could be accepted or how much weight should be attached with it is for the Court to decide as held by the Hon’ble Apex court in Malay Kumar Ganguly Vs Dr. Sukumar Mukherjee III (2009)  CPJ 17 (SC). In the Parag (supra) case, Hon'ble National Commission observed that despite the patient having continuous fever and abdominal pain and his repeated visits to the treating doctor for such problem, no proper diagnosis given by the treating doctor and such an act on the part of the treating doctor was per se negligence and the view taken by the Hon'ble National Commission to disregard the report of the medical board constituted by AIIMS was accepted by the Hon'ble Supreme Court in Rishabh (supra) case. In the case before us too, the medical records and pleadings reveal that the complainant’s son was only treated initially for pain in right hip from 22.06.2007 to 26.06.2007 and suddenly between 27.06.2007 to 28.6.2007 before his death, he became a patient of acute intestinal obstruction, gastritis, pyoperitonium all of which were diagnosed as blunt trauma abdominal injury which condition could not have developed all of a sudden but facts remain that it went undiagnosed and untreated otherwise why did the patient develop septicemia and tachycardia and sudden cardio respiratory arrest post surgery (exploratory laparatomy) and died due to bilateral pulmonary infarction which was revealed by the autopsy report and is a known complication occurring after a prolonged period of immobilization was never really notice or diagnosed or treated or attended to by the doctors in question. Despite such adverse observations made against the treatment procedure the record maintained by OP doctor, the medical board constituted by DDU hospital opined that there appeared to be no negligence on the part of treating doctor and therefore, we too relying the settled law dealt with hereinabove disregard the said medical opinion on grounds of inconsistent view taken by the said board despite having observing several lapses on the part of treating doctors / hospital and are further guided in this regard by a five Judge Bench of the House of Lords ruling in Bolitho (supra) case of words of Lord Browne-Wilkilson who opined that despite a body of profession opinion approving the doctor’s conduct, a doctor can be held liable for negligence if it is demonstrated that the professional is not capable of withstanding logical analysis. The Hon’ble Delhi SCDRC in the case of Krishna khatri Vs Balaji Hospital Pvt. Ltd. I (2020) CPJ 19 (Del.) was dealing with a similar case a death of 11 year old child for allege wrong treatment given by treating doctor and error of pre-operative and post-operative management by surgeon and anesthetist in which the Hon’ble SCDRC observe that there were contradictory findings recorded on treatment paper and continuous monitoring of patient required to check his condition was not done as a result of which the boy suffered stoppage of respiratory system (asphyxia) which lead to his death and held the treating doctors and hospital guilty of medical negligence.

 In the light of detailed discussion and judicial discourse on the issues arising in the present complaint, we may now advert to the merits of the case, if any in the light of the exhaustive medical jurisprudence analysis keeping in view the factual matrix of the case. The complainant (now deceased) lost his 13 year old son and had been relentlessly fighting for justice since last 14 years and even lost his wife during this process and the case is now being pursued by his children (siblings of his deceased son Monu). A Seven judge bench of the UK Supreme Court in Montgomery Vs Lanarkshire Health Board [2015] UKSC 11 held that “patients are now widely regarded as persons holding rights, rather than as passive recipients of the care of the medical profession” and the Hon’ble Apex Court in Arun Manglik (supra) case held that standard of care must evolve in consonance with its subsequent interpretation adopted by English and Indian Courts. The Hon'ble Supreme Court in Agrasen Hospital (supra) case observe that the cause of action for negligence arises only when damage occurs and such injury/damage must be sufficiently proximate to the medical practitioner breach of duty by an act of omission or commission by a medical professional of ordinary prudence and the standard to be applied for adjudging negligence would be that of an ordinary competent person exercising ordinary skill in the profession which is neither very high nor very law degree of care and competence. Negligence becomes actionable on the 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’. In the present case in hand, we find all these three components of negligence present viz dereliction of duty on the part of the senior anesthetist and senior surgeon despite being on call duty and aware of the gravity of situation of health of complainant’s son but still handing over such a critical case to inexperience resident doctors for surgery soon after which the complainant’s son died. It is well established that a hospital is vicariously liable for the acts of negligence committed by doctor engaged or empanelled to provide medical care. If the hospital failed to discharge to their duty through doctor, being employed on job basis or on contact basis, it is the hospital which has to justify the act of commission or omission on behalf of their doctors.

For all the above noted reasons, we are therefore of the considered opinion and have no hesitation in arriving at the conclusion that the OPS were seriously amiss in treating the complainant’s deceased son for the entire period that he was he had reported unwell from 22.06.2007 to 29.06.2007 when he finally lost his life. Apart from the fact that the prescription slips do not indicate any serious stomach ailment till 26.06.2007 and suddenly show a grave intestinal obstruction on 27.06.2007 when the boy was immediately put on medication and was admitted for urgent surgery. Admittedly, the treating doctor did not prescribe any test to him to diagnose the stomach infection which eventually worsened to the stage of pyoperitoneum and septicemia. Had the said been done viz either a CT scan or USG, the medication and treatment rendered to the complainant’s son could have been reviewed/modified at the right earnest and such a critical medical condition that the boy presented himself with on 27.06.2007 could have been avoided and even if such a condition arisen, had the senior surgeon and anesthetist present in the OT to undertake such a high risk surgery for exploratory laparotomy instead of handing it to inexperience resident doctor, the situation may have been different or may have survived or tolerate the surgical intervention. We rely on the judgment by The House of Lords per Lord Edmund-Davies, Lord Fraser and Lord Russell in Whitehouse vs Jordon and Anr (1981)1 All ER 267 in which it held that the test whether a surgeon has been negligence is whether he has failed to measure up in any respect, whether in clinical judgment or otherwise, to the standard of ordinary skilled surgeon exercising the professing to have the special skill of a surgeon. Therefore, for lack of diligence, duty of care and incorrect diagnosis, medical negligence stands prove against the OPs for having failed to adhere to call of duty and reasonable pre operative care. The question now surviving for consideration is as to what adequate compensation the complainant is entitled to for loss of his minor son who was only 13 years of age. The grant of compensation to remedy the wrong of medical negligence is no longer res integra isbased on the principle of restitutio in integrum which provide that a person entitled to damages which should as merely as possible get that sum of money which would put him in the sme position as he would have been if he had sustained the wrong [Livingstone vs Rawyards Coal Company (1880) LR 5 AC 25 (HL)] followed by our Hon’ble Apex Court in Balram Prasad Vs Kunal Shah IV (2013) CPJ 1 (SC) and Krishna Kumar vs State of Tamil Nadu 2015 (9) SCC 388 in which the Hon’ble Apex Court held that the sum of money must necessarily result in compensating the aggrieved person for the financial loss suffered due to the event, the pain and sufferingundergone and the liability that he / she would have to incur due to the loss caused by the event. In our consider view, having regard to the finding the medical negligence in the instant case occurred in 2007 and the litigation has been pending before this Commission over 14 years it would serve end of the justice to appropriately, compensate the complaint commensurate with the agony, pain and suffering that the complainant have faced due to untimely death master Monu and battling for justice for all these years. The law is watch dog and not a blood hound and since the complainant has fully established his case of medical negligence against OPs in terms of providing facta probanda and facta probantia, we direct the OPs to pay an amount of Rs. 5,00,000/- (five lakhs) alongwith interest @ 6% p.a. from the date of filing of the complaint till realization to the complainant. Let the order be complied with by OPs within 30 days from the date of receipt of copy of this order.

13. Let a copy of this order be sent to each party free of cost as per Regulation 21 of the Consumer Protection Regulations, 2005.
14.   File be consigned to record room.
15.   Announced on 13.12.2021. 

(Richa Jindal)       Member

(Anil Kumar Koushal) Member

(Sonica Mehrotra)  President