DR. SADHNA SHANKER, MEMBER

1.       This appeal has been filed under section 19 of the Consumer Protection Act, 1986 (hereinafter referred to as the ‘Act’) in challenge to the Order dated 02.05.2013 of the State Commission in complaint no. 149 of 2007, whereby the complaint was allowed.

2.       Heard the learned counsel for the appellants – K. C. Sharma Poly Clinic and Dr. Anand Sharma (hereinafter referred to as the ‘clinic’ and ‘doctor’ respectively) and the respondent – complainant in person (hereinafter referred to as the ‘complainant’) and perused the record including the State Commission’s impugned Order dated 02.05.2013 and the memorandum of appeal.

3.      The facts of the case are that on 16.04.2007 the wife of the complainant (hereinafter referred to as the ‘patient’), who was in the family way, visited the clinic whereupon Dr. Anshula Mittal and Dr. Ankur Mittal (herein after referred to as the ‘treating doctors’), insisted the complainant to get the patient admitted with the clinic, however, the complainant wanted the patient to be admitted in a well equipped hospital like Agrasin Hospital or ESI Hospital, Punjabi Bagh. The treating doctors informed the complainant that the case of the patient was normal and there was no complication at all. On their insistence, the complainant admitted the patient to the clinic. The treating doctors and the doctor started giving treatment and gave some pain doses. The patient was taken for delivery. It is alleged that at about 10.00 p.m. on 17.04.2007 when the complainant heard no noise from the delivery room, the complainant and other relatives saw a different scene from the glass fitted with the operation theatre that all the doctors were giving pumping to the patient whereas such treatment is not required for the purpose of delivery.  At about 11.15 p.m., the treating doctors informed that the condition of the patient was very serious and operation is required for which the consent was given by the complainant. At about 12.15 a.m. the complainant was informed that the condition of the patient and the new born baby were serious and they are required to be admitted in some big hospital for which they called ambulance. It is alleged that the clinic was not well equipped for the facility of operation and other emergency requirements but the complainant trusted on all the doctors. The patient and the new born baby was taken to Maharaja Agresain Hospital, Punjabi Bagh where the doctors recorded that the wife and the new born baby were brought dead.

4.    Alleging medical negligence on the part of the clinic, the doctor and the treating doctors, the complainant filed a complaint before the State Commission and prayed for compensation of Rs. 40 lakh along with interest at the rate of 18% per annum from the date of complaint.

5.    The clinic and the doctor contested the complaint by filing written version and stated that the doctor had not insisted the complainant to get the patient admitted in the clinic and the patient was admitted under the reference of Dr. Anshula Mittal, a qualified gynecologist, and the clinic is well equipped for the purpose of delivery. The patient was under the treatment of Dr. Anshula Mittal, a qualified gynecologist and as Dr. Anand Sharma was an Orthopedician, there is no question of treating or advising the patient. It is admitted that the patient and the new born baby were declared brought dead by the doctors of Maharajas Agrasen Hospital but it has also been denied that the patient and the new born baby were dead in the clinic.

6.       The State Commission vide impugned Order dated 02.05.2013 allowed the complaint and directed the clinic, the doctor and the treating doctors to jointly and severally pay a compensation of Rs. 20,00,000/- within 30 days, failing which, the said amount shall carry interest at the rate of 10% per annum till realization.

7.      Learned counsel for the clinic and the doctor has argued that the doctor has not treated the patient and hence, there was no question of negligence on his part and it is clear from the report of the Delhi Medical Council that Dr. Anand Sharma was an Orthpaedic Surgeon and Dr. Anshula Mittal, the treating doctor could not substantiate by a negative consent that she advised LSCS on many occasions but the same was refused by the patient’s relatives and that Dr. Anshula Mittal being Gynaecologist should have foreseen the perils of delaying the LSCS procedure in this case and should have recorded a negative consent if the patient’s relatives were reluctant for LSCS and that Dr. Anshula Mittal failed to exercise reasonable degree of skill, knowledge and care which was expected of an ordinary prudent gynecologist in the treatment administered to the patient. It has been vehemently argued by learned counsel for the clinic and the doctor that the clinic through its doctor and Dr. Anand Sharma are not liable on any count as the patient was under treatment of Dr. Anshula Mittal and Dr. Ankur Mittal. He further submits that Delhi Medical Council did not find any medical negligence on the part of doctor. He further submitted that the fault lies with the clinic is that it was not registered. He further submitted that the State Commission had failed to appreciate that Delhi Medical Council did not find any medical negligence on the part of the in-charge doctor, the Orthopaedic doctor and had erred to make them jointly and severally liable.  Therefore, the complaint is not maintainable.

In support of his contentions, he placed reliance on the judgment as under

1. Dr. (Mrs.) Chandas Rani Akhouri & Ors. Vs. Dr. M.A. Methusethpathi & Ors., civil appeal no. 6507 of 2009, decided on 22.04.2022;

2. Bombay Hospital & Medical Research Centre vs. Asha Jaiswal & Ors. Reported as I (2022) CPJ 3 (SC)

3. Arun Kumar Manglik vs. Chirayu Health and Medicare Pvt. Ltd. & Anr. Reported in III (2019) CPJ 1 (SC)

4. Maharaja Agrasen Hospital & Ors. Vs. Master Rishab Sharma & Ors. Reported in I (2020) CPJ 3 (SC).

       Further, he submitted that the treating doctors who treated the patient had entered into a compromise with the complainant and the complainant had received an amount of Rs. 10 lakh from the treating doctors, hence, the joint and several liability stands extinguished and came to an end. It has further been stated that except the recording of negative consent with regard to recommending LSCS owing to fully grown size of the baby and delay in conducting LSCS, the Delhi Medical Council did not find any fault with the treatment given to the patient. He further submitted that for non-registration of the clinic, the court of ACMM imposed a penalty of Rs. 500/- as per provisions of the Nursing Home Act, which fine was paid on 03.09.2011 and further making the clinic jointly and severally liable is wholly unjustified and arbitrary and hence, the impugned Order of the State Commission is liable to be set aside.

8.      The complainant in person submitted that the clinic was not well equipped for the purpose of LSCS as well as for emergency and even the clinic was not registered. He further submits that when the clinic was not well-equipped with the facilities for LSCS and even not registered, the doctor should not admit the patient in the clinic for delivery. He further argued that Dr. Anand Sharma was the incharge / caretaker of the clinic and he was involved in all the discussions on the day of the admission of the patient in the clinic and also accompanied the patient and newly born child in his personal car to Maharaja Agrasen Hospital. He further argued that there was clear deficiency in service on the part of the clinic and the doctor for not having adequate facilities in the clinic for operation and emergency.

9.    The treating doctors have entered into a compromise with the complainant and the treating doctors have paid an amount of Rs. 10 lakh towards settlement.

10.     The main question for consideration is whether there was any medical negligence on the part of the clinic and the doctor.

11.     Firstly, we would like to quote the report of the Delhi Medical Council on the matter dated 16.07.2010 which reads as under:

“We further recommend that warning be issued to Dr. Ankur Mittal (DMC Registration No. DMC/R/00322) and Dr. Anand Prakash Sharma (DMC Registration No. 1652) for working at an unregistered centre and action should also be initiated against Shri S. C. Sharma by the Directorate of Health Services for running an unregistered Centre.”

12.     In the case of Maharaja Agrasen Hospital and Ors. Vs. Master Rishabh Sharma and Ors. I (2020) CPJ 3 (SC), relied on by the clinic and the doctor, the Hon’ble Supreme Court has categorically held as under:

       “11.4.17 It is well established that a hospital is vicariously liable for the acts of negligence committed by the doctors engaged or empanelled to provide medical care (Savita Garg v. National Heart Institute (supra); Balram Prasad, (2014) 1 SCC 384 : (2014) 1 SCC (Civ) 327; Achutrao Haribhau Khodwa vs. State of Maharashtra, 1996 (SLT Soft) 1000=(1996) 2 SCC 634; V. Krishnakumar v. State of Tamil Nasdu (supra). It is common experience that when a patient goes to a hospital, he/she goes there on account of the reputation of the hospital, and with the hope that due and proper care will be taken by the hospital authorities [Savita Garg v. National Heart Institute (supra). If the hospital fails to discharge their duties through their doctors, being employed on job basis or employed on contract basis, it is the hospital which has to justify the acts of commission or omission on behalf of their doctors (Savita Garg v. National Heart Institute. (supra)].

11.4.18 Accordingly, we hold Appellant No.1-Hospital to be vicariously liable for the acts of omission and commission committed by Appellant Nos. 2 to 4. We hold all the Appellants as being jointly and severally liable to pay compensation to the Complainants.”

13.     It is an admitted fact that the patient had taken the treatment at the said clinic. It is also admitted that the patient was admitted on the reference of Dr. Anshula Mittal, the treating doctor. The clinic or the doctor have failed to produce any documentary evidence to prove that the clinic was registered and admit that it was fined for non-registration. It is also seen that even the Delhi Medical Council has issued a warning against Dr. Anand Sharma for working at an unregistered centre. The averment of the complainant that he was caretaker of the clinic is not being denied by the clinic and the doctor in any of their submissions. Apart from this, the clinic had failed to produce any evidence to show that the clinic was well-equipped with the facilities required for LSCS. Had the clinic been equipped with the facilities necessary for the surgery or to deal with the emergency situation, the need to take the patient and new born baby to Maharaja Agrasen Hospital would not have arisen. Therefore, it is apparent that the clinic was not equipped with the facilities required for the treatment.

14.     In view of the judgment of Hon’ble Supreme Court in the case of Maharaja Agrasen Hospital & Anr. (supra), we are of the view that the clinic and the doctor are vicariously liable for the acts of negligence committed by the treating doctors as well as for not providing well-equipped facilities required for LSCS. As regards, quantum of compensation is concerned, considering that the patient was of the age of 25 years and the new born baby could not see the light of the day, the compensation granted by the State Commission is just and reasonable. Since it is admitted fact that Rs. 10 lakh has been paid by Dr. Anshula Mittal and Dr. Anand Mittal, the balance of Rs. 10 lakh shall be paid by the clinic and the doctor within 30 days from the date of this Order, failing which, interest at the rate of 10% per annum shall be paid from the date of this Order till realization.

15.     The appeal fails and the same is dismissed. Pending I.A., if any, stands disposed of with this Order.