BEFORE: HON'BLE DR. S. M. KANTIKAR, PRESIDING MEMBER For Indraprastha Apollo Hospitals : Ms. Meenakshi Singh, Advocate For Dr. Anant Ram : Mr. Abhishek Sethi, Advocate For Complainants (R-1 to 4) : Mr. Salil Paul, Advocate Mr. Sahil Paul, Advocate For Kakkar Maternity & Nursing Home: NEMO For Dr. Sunil Bajaj : Appeal dismissed vide Order dated 07.01.2015 Pronounced on: 23rd May, 2023 ORDER 1. This Order shall decide both the First Appeals arising from the impugned Judgment /Order dated 26.11.2012 passed by the Haryana State Consumer Disputes Redressal Commission, Panchkula (hereinafter referred to as the “State Commission”) in Consumer Complaint No. 24/2006, wherein the State Commission allowed the complaint and awarded Rs. 6 lakh compensation to be paid by all the OPs. 2. For the convenience the parties are referred to be as in the Complaint before the State Commission. 3. The Complainants are legal heirs of deceased Smt. Asha Rani Gurdhar. The Opposite Parties are OP-1–Kakkar Maternity and Nursing Home (OP-1), Dr. Rajesh Kakkar (OP-2), Dr. Abhishek Kakkar (OP-3) and Dr. Sunil Bajaj-The Medical officer of Kakkar Hospital (OP-4). Dr. Anant Ram Janta Hospital Barwala (OP-5) and Indraprastha Apollo Hospital, New Delhi (OP-6), both were impleaded as a proforma party. 4. Brief facts that, since June 2005 Smt. Asha Rani Girdhar (hereinafter referred to be as the ‘patient’) aged about 54 years was suffering from abdominal pain. On 14.12.2005 she consulted Rajesh Kakkar’s Maternity & Nursing Home (OP-1), Fatehabad. The USG revealed left Renal Calculi (stones) and on 02.03.2006 she was operated under General Anesthesia (GA) by Dr. Sunil Bajaj, Dr. Abhishek Kakkar and Dr. Rajesh Kakkar (OP No. 2-4 respectively). After surgery, within 10 minutes the patient felt breathing difficulties, missing pulse and the eyes stopped blinking. The Complainant alleged that the OP hospital has no ICU facility, no Oxygen and Ventilator. On the next day 03.03.2006 Dr. Anant Ram (OP-5) was called from Barwala who advised to shift the patient to Apollo Hospital, Delhi (OP- 6). On the next day the Patient was admitted to OP-6 but she could not recover and due to multi organ failure died on 06.04.2006. U/s 304-A IPC, an FIR was registered in Police Station, Tohana. The Complainants filed Consumer Complaint No. 24/2006 against the OP-1 to 5 for alleged medical negligence and prayed compensation to the tune of Rs. 29,00,000/- 5. The OPs -1 to 3 filed their respective written version, denied any negligence during treatment of the patient. The OP-1 further submitted the Expert Medical Board Report of Doctors of PGIMS Rohtak vide dated 31.05.2007 wherein the Board of Doctors have denied any kind of medical negligence or carelessness in treating the patient. The OPs- 4 and 6 were proceeded against ex-parte. 6. After considering the submission and evidence the State Commission partly allowed the complaint against all the OPs and awarded Compensation to the tune of Rs. 6 lakh to be paid by all the OPs. 7. Being aggrieved, the OP-6 – Indraprastha Apollo Hospital & OP-5- Dr. Anant Ram have filed First Appeal Nos. 61 and 194 of 2013 respectively. 8. Heard the arguments from the Parties. 9. The crux of this matter is whether the Appellants (OPs-5 and 6) were liable to pay compensation as awarded by the State Commission as they were only proforma parties in the complaint. 10. I have perused the record. It is pertinent to note that the Appellant /OP-5 Dr. Anant Ram has neither performed the operation nor was he in any way associated pre or post-operative period. He has only facilitated patient shifting to a better hospital at Delhi. There was no negligence attributed to Dr. Anant Ram. The Appellant /OP- 6 was impleaded as a proforma party in the complaint for the production of medical records of the patient during the period of her admission. 11. I have perused the Expert Opinion. It is evident that Mrs. Girdhar was an obese lady and had uncontrolled hypertension (high blood pressure). Even on the day of surgery her BP was high, to 210/110 mm of Hg. She had stone in her left kidney and her renal functions were disturbed the Blood urea was 41 mg% and Serum Creatinine was 1.71 mg%. She also had albuminuria (+++) but the right kidney was of normal size. The board opined that Mrs. Girdhar should not have been operated for renal stone under such condition at a non-institutional hospital, since she was a high risk patient for major surgery under GA. This fact was also very well known to the doctors who operated upon this patient. It was conveyed to the patient's attendant and even asked them to take her to tertiary level hospital for Surgery. Since patient's attendant gave informed high risk consent, they operated the patient. The patient developed sudden hypotension due to drugs and she became unconscious and required mechanical ventilation. Thereafter, she had acute renal failure which was precipitated by the hypotension. Subsequently she developed multi organ failure and death. 12. Since doctors at the Kakkar Nursing Home explained the risk of surgery to patients' relatives and they had given high risk consent, they cannot be held responsible for negligence. The patient was shifted to Dr. Anant Ram’s Janta hospital for purpose of Artificial Breathing which was provided to her. Therefore no negligence caused in that hospital as well. Subsequently patient was shifted to Apollo hospital in a critical condition. 13. However, the condition of the patient did not improve even on the next day i.e. 3.3.2006 and the complainants insisted that the records of the patient be given to them along with referral slip so that the patient could be taken to Medical College Rohtak or Delhi. However, the OPs No.2 and 4 did not agree to the same to refer higher centre. Instead of that Dr, Anant Ram (OP No.5), was called from Barwala and the three doctors i.e. OPs 2 to 4 assured the complainants that in the Janta hospital of OP No.5, there is ventilator facilities. Therefore, the complainants reluctantly agreed and the patient was shifted on 03.03.2006 to the Janta Hospital Barwala, where she remained admitted for one day. Her condition did not improve. The complainants were exasperated and they did not know what to do. They requested the OP No.5 to issue discharge slip and refer the patient to Apollo Hospital, Delhi. The OP-5 issued discharge certificate, but no records of the OP-1 Hospital were given. Therefore, the Complainant No. 3 rushed to Tohana wherein the OP-2 refused to give any hospital indoor treatment records, but only one discharge slip showing referral to Janta Hospital Barwala was issued. The patient remained admitted in the Indraprastha Apollo Hospital from 04.03.2006 to 06.04.2006 and could not recover. She died at 9.40 pm on 06.04.2006. 14. On perusal of the above sequence of events, it is evident that on 02.03.2006, the operation of removal of stone was performed by OPs-2 to 4 at OP-1 Hospital. Within 10 minutes of the operation, the patient felt breathing problem, her pulse was missing, and eyes stopped blinking. There was no ICU oxygen and Ventilator facilities despite assurance given by OP-1. The condition did not improve on next day (03.03.2006). Despite request from the Complainant, the OPs did not refer the patient to PGI, but OP-5 was called from Barwala and thereafter, the patient was shifted to OP-5 under the pretext that all facilities were available there. The Patient took one day treatment as there was no improvement ultimately the patient was shifted to Apollo Hospital on 04.03.2006 without issuing the treatment details and discharge summary. 15. In my opinion, the OPs- 1 to 4 were negligent in attending to the patient. The role of OP-5 Dr. Anant Ram was limited to the extent of ventilator facility for the patient’s deteriorated condition. However, as there was no improvement, the OP-5 referred the patient to OP-6 Hospital. In the Instant case, the OP-5 Dr. Anant Ram neither preformed any operation nor associated with pre or post-operative stage. Even he was not present during surgery. The patient was operated by OP-4 Dr. Bajaj. Therefore, role of OP-5 was limited to the extent that, he shifted the patient to the Apollo Hospital New Delhi. On the basis of entirety of the facts and chronology, in my view, there was neither medical negligence, nor any deficiency of services from the OP-5 & 6. The OP-5 accepted the patient for her breathing difficulty. 16. Even, the State Commission held that the operation of the patient at OP-1 was of high risk but the patient was operated without having proper facilities. The State Commission has relied upon record of special Medical Board, in the following manner:- “4. In the opinion of the board Mrs. Girdhar should not have been operated for renal stone in this situation at a non-institutional hospital, since she was a high risk patient for major surgery under General Asnaesthesia due to obesity and uncontrolled hypertension. This fact was also very well known to the doctors who operated upon this patient….” 17. The State Commission has not given any finding or observation on issue of medical negligence attributable to OPs-5 & 6, but surprisingly passed an Order holding “all the OPs” including OPs-5 & 6 liable for negligence. In my view, no negligence is attributable to OPs-5 & 6, but the entire liability shall be of OPs - 1 to 4 only. It is transpired that vide Order dated 07.01.2015, the Appeal against OP-4 was dismissed. Therefore, the liability remains qua OPs-1 to 3. 18. Based on the forgoing discussion, I find that the State Commission erred by holding OPs-5 & 6 negligent. The Order of the State Commission qua OP-5 & 6 (the appellants herein) is set aside. Consequently, the OP-1 to 3 shall pay the award as ordered by the State Commission within six weeks from today, failing which the entire amount shall carry interest at 8% per annum till its realisation. Both the First Appeals are partly allowed. | 
