STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,

CHANDIGARH

Misc. Applications Nos.1543-1545 of 2018

In/and
Consumer Complaint No.982 of 2017

Date of institution: 10.11.2017

Reserved on : 28.07.2020
Date of decision : 31.07.2020

1. Raj Kumar (deceased) son of Desh Raj through his legal

heirs:-

a) Sumit Sharma s/o Shri Raj Kumar r/o H.No.540, Sector

13, Urban Estate, Kurukshetra, Pin-136 118.

b) Amit Kumar son of Shri Raj Kumar r/o H.No.540, Sector

13, Urban Estate, Kurukshetra, Pin-136 118.

c) Ritu Manocha w/o Shri Chetan Manocha, r/o H.No.301,

A.T.S., Dera Bassi, Mohali, Punjab.

2. Sumit Sharma s/o Late Shri Raj Kumar r/o H.No.540, Sector

13, Urban Estate, Kurukshetra, Pin-136 118.

3. Amit Kumar son of Late Shri Raj Kumar r/o H.No.540, Sector

13, Urban Estate, Kurukshetra, Pin-136 118.

4. Ritu Manocha w/o Shri Chetan Manocha, r/o H.No.301, A.T.S.,

Dera Bassi, Mohali, Punjab.

…….Complainants
Versus

1. Fortis Health Care Limited, Fortis Hospital, Sector 62, Phase

VIII, Mohali-160 062 through its Managing Director/Partner/

Authorised Signatory.
Consumer Complaint No.982 of 2017 2

2. Fortis Hospital, Sector 62, Phase VIII, Mohali-160 062 through

its Managing Director / Partner / Authorised Signatory.

3. Dr. Vikas Bhutani, Fortis Healthcare Limited, working at Fortis

Hospital, Sector 62, Phase VIII, Mohali-160 062.

4. Dr. Ashis Pathak, Fortis Healthcare Limited, working at Fortis

Hospital, Sector 62, Phase VIII, Mohali-160 062.

5. Dr. Rakesh Jaswal, Fortis Healthcare Limited, working at Fortis

Hospital, Sector 62, Phase VIII, Mohali-160 062.

6. Dr. R.K. Behl, Fortis Healthcare Limited, working at Fortis

Hospital, Sector 62, Phase VIII, Mohali-160 062.

7. Dr. Harsh Batra, Fortis Healthcare Limited, working at Fortis

Hospital, Sector 62, Phase VIII, Mohali-160 062.

8. Dr. Ankush Blaggan, Fortis Healthcare Limited, working at

Fortis Hospital, Sector 62, Phase VIII, Mohali-160 062.

9. Shivender Mohan Singh, Director of Fortis Healthcare Limited,

working at Fortis Hospital, Sector 62, Phase VIII, Mohali-160 062.

10. Malvinder Mohan Singh, Director of Fortis Healthcare Limited,

working at Fortis Hospital, Sector 62, Phase VIII, Mohali-160 062.

11. Harpal Singh, Director of Fortis Healthcare Limited working at

Fortis Hospital, Sector 62, Phase VIII, Mohali-160 062.

……..Opposite Parties

Consumer Complaint under Section

17(1)(a)(i) of the Consumer Protection Act,
1986.
Quorum:-

Hon’ble Mr. Justice Paramjeet Singh Dhaliwal, President

Consumer Complaint No.982 of 2017 3

1) Whether Reporters of the Newspapers may be allowed to see

the Judgment? Yes/No
2) To be referred to the Reporters or not? Yes/No
3) Whether judgment should be reported in the Digest? Yes/No

Argued by:-

For the complainants : Shri Munish Goel, Advocate.

For the opposite parties : Shri Munish Kapila, Advocate.

JUSTICE PARAMJEET SINGH DHALIWAL, PRESIDENT:

The genesis of factual matrix of the instant consumer

complaint under Section 17(1)(a)(i) of the Consumer Protection Act,

1986 (in short, “C.P. Act”) lies in specter of sad demise of Smt.Vijay

Laxmi, wife of Raj Kumar (husband) and mother of Sh. Sumit

Sharma, Sh. Amit Kumar and Ms. Ritu Manocha, sons and daughter,

respectively (hereinafter to be referred to as “the patient”). During

the pendency of the complaint Sh. Raj Kumar, died on 4.8.2018.

Complainants Nos.2 to 4 moved Miscellaneous Application No.2307

of 2018, for impleading them as legal heirs of complainant No.1.

The said application was allowed, vide order dated 9.10.2018. The

complainants have sought following directions against the opposite

parties:-

i) to refund ₹55,24,946/-; being total medical expenditure

made by the complainants for treatment of Vijay Laxmi

along with interest at the rate of 12% per annum from the

date of expenditure till payment;

ii) to pay ₹20,00,000/-, as compensation, for causing

mental tension, harassment and mental agony to the

complainants; and
Consumer Complaint No.982 of 2017 4

iii) to pay ₹1,10,000/-, as cost of litigation.

M.A. Nos.1543 to 1545 of 2018:

2. These applications have been filed by opposite parties Nos.9

to 11, respectively, for deletion of their names from the array of

opposite parties on the ground that there is no specific averment

regarding any role played by them qua treatment administered to the

patient. I have heard the learned counsel for the parties and

perused the record. Opposite parties No.9 to 11 are the Directors of

opposite party No.1. Hence they are necessary and proper parties.

Thus, the applications are dismissed.

Averments in the Complaint:

3. Brief facts, as averred in the complaint, are to the effect that

the patient was 66 years old female and was on preventive and

precautionary routine diet, exercise and regular intake of prescribed

medicines for Diabetes Mellitus(DM), Hypertension(HTN) and old

Cerebral Vascular Accident (CVA). She was enjoying a normal

health and leading a respectful social life. The patient underwent

Coronary Artery Bypass Graft (“CABG”) in 2006 but was normal

thereafter. In last week of May 2016 the patient felt physical

uneasiness and she was immediately admitted in Aggarwal Nursing

Home, Kurukshetra on 30.5.2016. There diagnosis of the patient

was Septicemia with Urinary Tract Infection (UTI) and after treatment

the patient was discharged on 3.6.2016, prescribing some

medicines. The patient did not respond to the treatment at Aggarwal

Heart Care, Kurukshetra and continued to suffer from vomiting,

Consumer Complaint No.982 of 2017 5

diarrhoea, fever and poor oral intake. Complainant No.1 along with

the patient came to Fortis Hospital, Mohali for check-up on 4.6.2016,

where the patient was examined by Dr. Vikas Bhutani-opposite party

No.3 and some investigations were also got done. A report was still

to come. Therefore, they went back to Kurukshetra. The reports

were shown to Dr. Vikas Bhutani-opposite party No.3 on 6.6.2016 at

about 6.00 P.M. and after going through the same, she advised

complainant No.1 to admit the patient in the emergency after

completing formalities. Dr. Vikas Bhutani is a specialist in Internal

Medicine and he did not consult specialist doctors of other

disciplines i.e. cardiology, neuro and other fields. The patient was

got admitted in opposite party No.2-Hospital on 7.6.2016 and all the

earlier medical record pertaining to the patient was also provided to

the doctor. At that point of time, the patient was normal and fully

conscious. Dr. Vikas Bhutani-opposite party No.3 informed

complainant No.1 that the patient had been given initial treatment

and her organs were doing fine. There was no serious problem and,

as such, he suggested that complainant No.1 could go back to

Kurukshetra and could come again. During that period the patient

was on intravenous (IV) antibiotics (injection Zeinem), optineuron,

antipyretics, hypertensive, anticoagulants and other supportive

therapies. The patient was also administered insulin at opposite

party No.2-Hospital. CT chest of the patient was conducted, which

suggested mild right and minimal left pleural effusion with fluid along

the right oblique fissure superior, patches of ground glass opacities

Consumer Complaint No.982 of 2017 6

in lingular lobe. CT of brain revealed subacute infarct (frontal),

chronic infarct changes in right side. Diffuse Cerebral atrophy, CT

whole abdomen revealed ectopic right kidney with its pelvis pointing

anteriorly, prominent left renal pelvis---? Partial puj with perinephric

fat stranding, eccentric calcified plaques in abdominal aorta and its

branches. Anterior wedge compression of D12 vertebral body, 2D

echo revealed anterior wall Apical ½ lateral wall hypokinesis. No.

AS/AR/TR, Mild TR, EF-38%, Trop 1 was 4.576.

4. It is further averred that complainant No.1 remained in opposite

party No.2-Hospital during that period but he was not given any

information about the treatment being given to the patient. The

patient was normal, healthy and was fully conscious upto 8.6.2016.

Complainant No.1 had clicked the photographs of the patient.

Complainant No.1 went to the room of the patient on 9.6.2016 at

6.00 A.M. and noticed that the patient was not responding.

Complainant No.1 sought information about the same from opposite

parties but was not provided any information about the status of

health of the patient. Complainant No.1 asked the staff to call Dr.

Vikas Bhutani-opposite party No.3, number of times for check-up but

no response was given. Complainant No.1 noticed that the health of

the patient was deteriorating every moment but no action was being

taken by the opposite parties. During the initial period the patient

required urgent medical assistance. The patient suffered at large

due to the lethargic behaviour of the opposite parties for not taking

prompt action and giving necessary medical treatment. The other

Consumer Complaint No.982 of 2017 7

family members, the daughter of complainant No.1 and the relatives

also reached in opposite party No.2-Hospital and tried to locate Dr.

Vikas Bhutani-opposite party No.3 but he was not available.

Complainant No.1 came to know that Dr. Harsh Batra-opposite party

No.7, who was one of the members of the team of Dr. Vikas Bhutani-

opposite party No.3, was available and he requested to check the

patient but he too did nothing. Thereafter complainant No.1 called

the Director of opposite party No.2-Hospital, who promised that he

will tell the said Doctor to examine the patient.

5. It is further averred that the patient was not taken for MRI or

CT scan. Complainant No.1 found the patient unconscious and not

responding on 9.6.2016. The health of the patient had deteriorated

during that period as no treatment was provided and the opposite

parties wasted the time as they remained busy in their other routine

jobs. Some other tests were done after a long gap and it was

informed that the patient would be taken for operation and her part of

skull would be removed so that pressure could be released on the

brain and after that Dr. Ashis Pathak-opposite party No.4 explained

complainant No.1 that the patient would be conscious after 4-5 days.

Cardiology and Neurology consultations were taken from Dr. Rajat

Sharma and Dr. Singhvi, respectively. The patient was suffering

from fever and vomiting on account of septicemia with UTI. It was

not explained to the complainants as to how the patient suffered

Acute Coronary Syndrome (ACS), which is a syndrome (set of signs

and symptoms) due to decreased blood flow in the coronary arteries.

Consumer Complaint No.982 of 2017 8

That part of the heart muscle was unable to function properly or had

damaged on 8.6.2016 during hospitalization. It is further averred

that complainant No.1 came to know from one of nurses attending

the patient that the patient suffered mild heart attack on 8.6.2016

and also came to know that the patient was not attended by any

doctor for 6 hours after the mild heart attack. The treating staff did

not call the Neuro Surgeon nor MRI or CT Scan was got done till

10.6.2016. The brain surgery was conducted on 12.6.2016 and

injection anticoagulant was administered to the patient to protect her

from blood clotting but it was against the medical norms, due to

which the patient suffered brain stroke and went into comma. MRI

conducted on 10.6.2016 showed large acute infarct in right MCA

territory without haemorrhagic transformation. The patient was

intubated and ventilated on 10.6.2016 at 2.15 P.M. The CT Brain

done on 11.6.2016 showed increased mass effect and imminent

surgery. Complainant No.1 was told to arrange for platelet

aphaeresis. It is further averred that the surgery was conducted on

12.6.2016 and the patient was treated in opposite party No.2-

Hospital and was discharged in hopeless condition on 16.7.2016.

The patient went into comma and before surgery she was breathing

of her own but after the operation she was put on ventilator and the

food was given through Ryle’s Tube (in short, “RT”). The

haemoglobin (Hb) was decreasing day by day. It appeared that the

patient was bleeding from inside. The opposite parties did not take

any action to find out the reasons for decrease of haemoglobin after
Consumer Complaint No.982 of 2017 9

the operation. The albumin of the patient was also found on the

lower side. The patient was turning weak and, as such, complainant

No.1 requested the treating Doctor to tell the reasons for the same.

6. It is further averred that the Doctors at Neuro ICU were not

cooperative at all. Dr. Vikas Bhutani-opposite party No.3 was rude

with complainant No.1 and the other attendants. Complainant No.1

duly complained to the superior authorities of the hospital about the

attitude, arrogance and the rude behaviour of nursing staff and

doctors. Complainant No.1 even met the Director and complained

about the deficiency in treating the patient at their hospital, but

nothing was done to improve the same. Complainant No.1 duly

sought information about the treatment given by the opposite parties

during hospitalization but no doctor gave proper reply. Complainant

No.1 felt helpless and was not in a position to take the patient back

at home as she was in comma and required 24 hours medical

attention. However, complainant No.1 was told to take discharge of

the patient and the patient was forcefully discharged on 16.7.2016.

Complainant No.1 spent ₹20, 83,226/- on the treatment of the patient

in opposite party No.2-Hospital for the period from 7.6.2016 to

16.7.2016.

7. It is further averred that the patient was taken to Fortis “INN”,

which is also a part of opposite party No.2-Hospital and is like a hotel

where the patient was kept under the care of the private nurses.

Complainant No.1 again brought the patient after three days on

19.7.2016 to opposite party No.2-Hospital as the health of the patient

Consumer Complaint No.982 of 2017 10

had worsened. Dr. Vikas Bhutani-opposite party No.3 refused to

entertain and examine the patient. Thereafter Dr. Ravi Kant Behal-

opposite party No.6 permitted the admission of the patient in MICU.

Her condition remained critical throughout. The patient was having

episodes of fever, bronchospasm with worsening of tachypnea and

desaturation. The tracheotomy was getting infected all time and the

patient was to be kept on ventilator and, as such, the opposite

parties kept the patient in isolation room. The patient was not being

attended properly. The patient was shifted to isolated room, thus,

there was difficulty to give treatment to the patient in-spite of her

serious condition. Her blood pressure level was never maintained.

The albumin was very low. The patient’s creatinine level was okay

and had no problem but during hospitalization the creatinine level

also varied from time to time. The health of the patient deteriorated

day by day while under the treatment of Dr. Ravi Kant Behal-

opposite party No.6. The patient was again discharged forcefully in

hopeless condition on 9.10.2016. The complainants spent huge

amount of ₹20,09,400/- during that hospitalization of the patient.

Complainant No.1 left with no option but had to take a house on rent

in Phase 3B2, Mohali so that they could stay close to opposite party

No.2-Hospital and could move the patient to opposite party No.2-

Hospital immediately in case of emergency. The patient was taking

food from Ryle’s Tube. Complainant No.1 also arranged oxygen and

other equipments to provide oxygen to the patient. Complainant

No.1 again brought the patient to opposite party No.2-Hospital on

Consumer Complaint No.982 of 2017 11

30.11.2016 when her condition had worsened on account of difficulty

in breathing and fever. The patient was got admitted under Dr.

Rakesh Jaswal-opposite party No.5 and Dr. Harsh Batra-opposite

party No.7. However, the patient was not recovering. Her blood

level and creatinine level was increasing but Dr. Rakesh Jaswal-

opposite party No.5 and Dr. Harsh Batra-opposite party No.7 did not

take care of the patient at all. The Hb level of the patient was

decreasing and the opposite parties failed to find out the reasons for

the same. Opposite parties Nos.5 and 7 were only forcing

complainant No.1 to take the patient out of opposite party No.2-

Hospital but complainant No.1 himself was 67 years old at that time

and it was very hard for him to take the patient anywhere else as her

health had deteriorated after the first admission with opposite

parties. However, the patient was again forcefully discharged on

15.12.2016. Complainant No.1 again spent huge amount of

₹3,41,000/- on the hospitalization of the patient for the period from

30.11.2016 to 15.12.2016. Complainant No.1 thereafter shifted the

patient to Flat No.2163, Sector 63, Chandigarh Housing Board

Society, Chandigarh. However the condition of the patient further

deteriorated within one day and she was not in a position to be kept

at home. Accordingly complainant No.1 again took the patient to the

Emergency of opposite party No.2-Hospital on 17.12.2016. The

patient was lying helpless in emergency room and after waiting for 8-

10 hours the opposite parties took her to CCU. Complainant No.1

consulted the Doctors regarding deteriorating health of the patient

Consumer Complaint No.982 of 2017 12

and met Dr. Rakesh Jaswal-opposite party No.5 in his OPD but he

refused to entertain the patient and told to take the patient home.

The patient was shifted to the isolation room but there was no

emergency button to call the doctor. Dr. Ankush Blaggan-opposite

party No.8, who was the treating Doctor, was too careless and he

also did not handle the situation properly. The TLCs were rising and

the creatinine level of the patient was also high but nothing was done

by the opposite parties. The patient had suffered infection in

tracheotomy but the same was not properly treated. The patient was

put on ventilator but her health did not improve. Complainant No.1

requested Dr. Ankush Blaggan-opposite party No.8 number of times

to look into the health of the patient but nothing was done by the

opposite parties. They left the patient in critical condition to die.

Complainant No.1 further found that the patient was getting weak.

She was having loose motions. She was taking too less intake

through “RT”. Even her platelet counts were very low. Complainant

No.1 sought information for low platelets counts but Dr. Ankush

Blaggan-opposite party No.8 and Dr. Harsh Batra-opposite party

No.7 told him that it happens during the critical situation of the

patient. Dr. Ankush Blaggan-opposite party No.8 told complainant

No.1 that they were arranging the plasma to be administered to the

patient and she would be fine after the treatment. Complainant No.1

further found that the patient was bleeding through her mouth but the

opposite parties did nothing during that period. The situation

remained same for the last 2-3 days before her death. Complainant
Consumer Complaint No.982 of 2017 13

No.1 once found that the eyes of the patient were dangerously

opened and he duly informed about the same to the opposite parties

but Dr. Ankush Blaggan-opposite party No.8 and other staff did not

care at all. The grandson of complainant No.1 was also there and

accordingly, Dr. Ankush Blaggan-opposite party No.8 told

complainant No.1 that he could go home as his grandson was

available at opposite party No.2-Hospital, if required. Complainant

No.1 went home and after he returned back to opposite party No.2-

Hospital he was informed that his wife was no more. The condition

of the patient remained critical throughout and unfortunately she

expired on 25.1.2017. Complainant No.1 asked the reasons for her

death but nothing was informed by the opposite parties.

Complainant No.1 spent an amount of ₹10,82,532/- on the

hospitalization of the patient during that period. The cause of death

as mentioned in the Death Summary of the patient is as under:-

“SEPTIC SHOCK WITH MODS

DIAGNOSIS
SEPTIC SHOCK WITH MODS
ACUTE RESPIRATORY FAILURE
CAD-OLD CABG (2007)
OLD CVA
DIABETES MELLITUS TYPE 2
SYSTEMIC HYPERTENSION
CKD
TRANCHEOSTOMIZED”

The patient continuously remained under the treatment of opposite

parties since 7.6.2016 to till her death upto 25.1.2017. Had the

opposite parties taken action and given treatment as per norms

prescribed and mentioned in medical books, the patient would have

Consumer Complaint No.982 of 2017 14

been saved from such early death. The opposite parties charged

excessive price for medicines. Opposite parties Nos.9 to 11 are the

active Directors of opposite party No.1 and 2, who are managing the

affairs of the Company. Alleging deficiency in service, adoption of

unfair trade practice and medical negligence on the part of the

opposite parties, the consumer complaint has been filed for issuance

of above mentioned directions to them.

Defence of opposite parties Nos.1 to 8:

8. Upon notice opposite parties appeared and filed their written

statements. Opposite parties Nos.1 to 8 filed a joint reply taking

preliminary objections to the effect that the complaint is a flagrant

abuse of the process of law and has been filed in order to harass,

malign and blackmail the opposite parties. The complainants have

failed to plead as to how the opposite parties have been negligent

and deficient in service in any manner whatsoever. The

complainants failed to produce an iota of evidence or any material on

record to show that there has been any negligence whatsoever on

the part of opposite party No.1 or opposite party No.2-Fortis

Hospital, Mohali or opposite parties Nos.3 to 8-Doctors, who had

attended the patient from time to time. The complainants have not

produced any documentary evidence or expert evidence to show

that the treatment given to the patient was not appropriate or was

negligently conducted. No act of negligence has been attributed to

the opposite parties in the entire complaint. The entire complaint is

based on some misconceptions and misguided notions in the mind

Consumer Complaint No.982 of 2017 15

of the complainants which are totally misplaced and ill founded. The

complainants have not approached the Commission with clean

hands and in fact have concealed material facts. Brief factual matrix

of the case has been given as under:-

i) The patient was a known case of Coronary Artery

Disease and had undergone Coronary Artery Bypass

Surgery in 2007. She had Left Ventricular Dysfunction

and was suffering from hypertension, uncontrolled

diabetes and had a history of old stroke in 2011. At that

time the patient was admitted in Fortis Hospital, Mohali

under Dr. J.P. Singhvi, Neurologist, for stroke

management in November 2011.

ii) The patient came to the Fortis Hospital on 4.6.2016

after getting initial treatment from Aggarwal Nursing

Home, Kurukshetra (where she remained admitted from

30.5.2016) with diagnosis of Urinary Tract Infection-

Sepsis. The total Leucocytes Counts (TLC), which is a

determinant of infection (marker for infection) was 15400

at the time of admission in Aggarwal Nursing Home and

14600 on the date of discharge (normal value being less

than 10000) which shows that the patient had severe

ongoing infection in her body. With that medical history,

the patient got herself discharged and reported to the

OPD of Fortis Hospital, Mohali on 4.6.2016 with

presenting complaints of ongoing infection and was given

Consumer Complaint No.982 of 2017 16

an appointment with Dr. Vikas Bhutani, MBBS, MD

(Internal Medicine), who has been arrayed as opposite

party No.3.

iii) Dr. Vikas Bhutani-opposite party No.3 after taking

the history of the patient, chief complaints of the patient

and after clinically examining her and after going through

discharge summary of Aggarwal Nursing Home,

Kurukshetra (from where she was discharged on

3.6.2016) as well as going through the results of

investigations conducted there, advised relevant

investigations, vide OPD prescription slip dated 4.6.2016

Annexure OP-1/1.

iv) As per record, the patient came back to OPD of

Fortis Hospital, Mohali, after 2 days on 6.6.2016 with

reports of investigations advised to her on 4.6.2016.

Thereafter the patient again met Dr. Vikas Bhutani-

opposite party No.3 in his OPD at Fortis Hospital, Mohali

at around 6.00 P.M, just before the OPD closing time. In

view of the deranged reports, the patient was advised

treatment and admission. It is apposite to mention that

patient’s sugars were poorly controlled as is evident from

markedly elevated Glycosylated Haemoglobin level of

HbA1c-10.5 against the normal value of less than/equal to

6.5. She had elevated TLC of 13400/cu. mm and

elevated ESR of 110 mm in first hour and elevated CRP

Consumer Complaint No.982 of 2017 17

of 96 with evidence of nephropathy as patient had serum

creatinine value of 1.39 mg/dl. Copies of reports are

Annexure OP-2/1 (colly) and a copy of ACE guidelines

on Comprehensive Type 2 Diabetes is Annexure OP-

2A/1.

v) The patient reported to emergency at 11:15 P.M.

on 6.6.2016 and after initial assessment and counselling

of the patient’s husband, Raj Kumar, as per hospital

protocol, patient was admitted at 12:10 A.M. on 7.6.2016

and the patient was shifted to Medical ICU from the

emergency. Thus, there was no delay in treatment of the

patient from the time she reported to the emergency of

the Hospital as is being projected by the complainants.

The Triage Sheet dated 6.6.2016, which was prepared

after assessment of the patient and the Admission Sheet

are Annexure OP-3/1 and Annexure OP-4/1.

vi) In Medical ICU based on the clinical history of the

patient and available investigations, Dr. Vikas Bhutani-

opposite party No.3 advised her treatment like

intravenous broad spectrum antibiotics, insulin, diuretics,

anti-platelets, beta blockers, Low Molecular Weight

heparin and statins. The patient was admitted to Medical

ICU due to her ongoing multiple problems. Complainant

No.1 has deliberately misstated the condition of the

patient to be normal in paragraph no.5 of the complaint.

Consumer Complaint No.982 of 2017 18

In one word she could not be described as ‘Normal’ else

the definition of normalcy would have to change.

Complainant No.1 has baselessly alleged in the complaint

that there was no serious problem with her.

vii) On 7.6.2016 during the morning rounds, Dr. Vikas

Bhutani-opposite party No.3 advised CT scans of

Head/Chest/Abdomen in view of the clinical condition of

the patient and as the patient presented with irrelevant

talks. Since patient’s attendant’s consent was required

for CT scans as per protocol, however, complainant No.1

at 1:20 P.M. on 7.6.2016 denied the consent for CT

Scans for the reasons best known to him. The

recommendation for CT scan by Dr.VikasBhutani-

opposite party No.3 and denial of consent for CT have

been documented in the progress notes Annexure OP-

5/1 and Annexure OP-6/1.

viii) On 7.6.2016, at 3:30 P.M, the patient became non-

cooperative, abusive and was refusing for any treatment,

which is documented in progress notes Annexure OP-

6A/1. The attendant was re-counselled by ICU Doctors

and only when the attendant agreed, CT scan head was

performed at 5:34 P.M. on 7.6.2016, which showed

evidence of gliosis (old infarcts) and repeat CT scan of

head done on 9.6.2016 showed similar changes. Since

there were no fresh changes and the patient was already

Consumer Complaint No.982 of 2017 19

on dual anti-platelets, anti-coagulation (heparin) and

statins, which is the standard line of management for

stroke and acute coronary syndrome, in view of her past

history of stroke and cardiac bypass, so she was

continued on same treatment. However, MRI head done

on 10.6.2016 showed acute massive infarct involving right

fronto-temporo-parieto-occipital (i.e. whole right side of

brain with no evidence of bleeding in it). But she was

already on anti-platelets, anti-coagulation (heparin) and

statins, which were continued. CT scan chest done on

7.6.2016 showed mild right and minimal left pleural

effusion and also ground glass opacities in lingular lobe

suggesting infection and fluid in both the lungs. CT

abdomen showed prominent left renal pelvis with

perinephric fat stranding suggesting infection involving left

kidney. Also there was ectopic right kidney as shown on

CT reports.

ix) On 8.6.2016 at 2.00 A.M., the patient had laboured

breathing with bilateral crepitations on examination; SpO2

was 90% with 2L/min of oxygen through nasal prongs.

Screening bedside echo revealed poor LV dysfunction

(38% EF), hypokinesia and mild MR. In view of possibility

of Acute Coronary Syndrome, Trop I was sent which

came out to be 4.57. Diuretics were stepped up and the

patient was continued on anti-platelets, anticoagulation

Consumer Complaint No.982 of 2017 20

(LMW heparin), statins and beta blockers. The patient

was also started on Non Invasive Ventilation (NIV)

support in view of falling saturation and respiratory

distress. Cardiology consultation was taken on 8.6.2016

and with the working diagnosis of ACS with Left

ventricular failure, with underlying old CAD, post CABG,

same ongoing treatment was advised to be continued and

no active management changes were suggested.

Urology consult was also done on 8.6.2016 under Dr. A.

Bawa and team.

x) On 8.6.2016 complainant No.1 was updated about

the current clinical status of the patient by Dr.Arun of

MICU team, Annexure OP-7/1.

xi) With the working diagnosis of ACS with LV failure

the patient was shifted to CCU (Cardiac Care Unit) on

9.6.2016 informing complainant No.1.

xii) On the evening of 9.6.2016 at around 10:40 P.M.

the patient became drowsy and was not following verbal

commands. Repeat CT scan of head was advised

immediately by Dr. Rajat Sharma, which showed same

findings as on 7.6.2016 (wrongly written as 7.6.2018) and

case was discussed with Dr. J.P. Singhvi, Neurologist and

no management change was suggested.

xiii) On 10.6.2016 at 7:30 P.M., Dr. J.P. Singhvi saw

the patient and advised MRI of head for further evaluation

Consumer Complaint No.982 of 2017 21

of poor neurological status and advised to continue same

line of treatment. At 9.00 A.M. findings on MRI were

discussed with Dr. J.P. Singhvi.

xiv) The MRI revealed increasing area of brain

infarction with swelling of brain and raised pressure due

to midline shift. At that point of time the patient was noted

to be drowsy but moving her limbs to pain. Her pupils

were normal. A neurosurgical consultation was sought

from Dr. Ashis Pathak, MBBS, M.S., M. Ch., MNAMS,

FICS, Director, Neurosurgery, Fortis Hospital, Mohali and

former Professor of Neurosurgery at PGIMER (opposite

party No.4) for urgent decompression of the compressed

brain in order to save the patient from imminent

deterioration due to progressive rise of pressure due to

swollen brain. Complainant No.1 and his daughter

complainant No.4 and the family were counselled about

need for urgent surgery on 10.6.2016 at 10:45 A.M. and

also explained the benefits, risks of surgery and

prognosis of the patient.

xv) The patient was put on ventilator machine awaiting

decision of family so that oxygenation of body and brain

was maintained in the background of drowsy state. As

preparedness for surgery the blood thinning medications

(anti-platelet drugs) were stopped otherwise their effect

would not allow bleeding control during surgery. As a

Consumer Complaint No.982 of 2017 22

requirement for surgery to prevent excessive bleeding

attendants were requested to arrange for 3 donors of

normal platelets of same blood group to be transferred to

the patient so as to counter the effect of anti-platelet

drugs. On 11.6.2016 at 10:00 A.M. (vide notes) the need

for urgent de-compressive surgery was once again

reiterated to complainant No.1 with a repeat request to

arrange 3 platelet donors. However, the family was still

undecided. The patient started deteriorating further and

complainant No.1 was counselled once again about the

need of urgent surgery on 11.6.2016 later in the day.

xvi) Complainant No.1 ultimately gave his consent for

surgery on 11.6.2016 at 12:30 p.m., vide consent form

after being made aware about the procedure, risks and

complications. Necessary arrangements were made to

make the best possible surgical effort to save and

improve the patient. Very soon after signing the consent

form, complainant No.1 expressed his doubts about

allowing the surgery and wanted to re-think again about

the option for surgery, vide noting dated 11.6.2016 at 1:30

P.M.

xvii) Ultimately after long period of dilly dallying on

11.6.2016 at 3.00 P.M. the family, however, expressed

their willingness to go ahead with the surgery after repeat

discussion and understanding the risks and prognosis.

Consumer Complaint No.982 of 2017 23

xviii) Accordingly the operation theatre was made ready

and the patient was to be shifted at 4.00 P.M. on

11.6.2016. To the utter frustration and dismay of the

operating team, they were informed that complainant

No.1 had unexpectedly decided against going ahead with

the surgery. Complainant No.1 explained about the

consequences of denial of surgery but he was adamant.

The reason for his refusal was best known to him.

xix) The crest fallen by the denial for much needed

lifesaving surgery for the patient the Neurologist Dr.

Singhvi and clinical incharge Dr. Bhutani had to decide

continuity of treatment in medical lines and they were left

with no other option but to restart anti-platelet drugs

(blood thinning medications).

xx) The worst fear turned out to be true at 7.00 P.M. on

11.6.2016 as the rt. pupil of patient started dilating

meaning thereby that the patient was coning and the

brain damaged due to compression had reached a critical

stage and the patient headed for death. Complainant

No.1 refused surgery even at that stage, vide writing

dated 11.6.2016 at 7:20 P.M.

xxi) As expected the condition of the patient continued

to deteriorate due to compression effect on brain.

However, on 12.6.2016 at 10:45 P.M. Complainant No.1

changed his mind and consented for the long awaited

Consumer Complaint No.982 of 2017 24

surgery, vide consent form dated 12.6.2016 at 2:30 P.M.

He accepted to stop the anti-platelet medication again

and took full responsibility of the consequences of his late

decision.

xxii) Obviously at that stage the patient had deteriorated

to M3 response from M5 state and her right pupil was

already dilated and non-reacting. The effect of anti-

platelet drugs (blood thinners) had to be reversed by

platelet transfusion. As surgery was the only option to

save her life, complainant No.1, was explained about the

extreme seriousness of the situation, particularly for the

unreasonable delay on the part of family to give their

timely consent for surgery. Complainant No.1 accepted

the responsibility of consequences of delay and poor

prognosis.

xxiii) As expected the patient was re-prepared for

surgery and had to undergo review pre-anaesthetic

check-up, reversal of anti-platelet therapy and was taken

up for surgery at the earliest on the same day i.e.

12.6.2016. By that time both the pupils had started

dilating despite all measures.

xxiv) The surgery was done in a text book fashion with

no untoward incidence. The de-compressive craniotomy

was performed, whereby a big window was created in the

skull to allow the swollen, infracted brain to get relieved of

Consumer Complaint No.982 of 2017 25

pressure and get space so that the remaining normal

functioning brain was saved from damage and revival of

its function.

xxv) After the de-compressive surgery the beneficial

affect was evident whereby the papillary size of the

patient decreased but the reaction of pupils did not revive

due to permanent change in affected area of deeper brain

due to unfortunate delay in surgery, which was

attributable to the complainants.

xxvi) Post-surgery the patient continued on ventilation

and medical management for her multiple medical

problems. Her neurological status did not worsen further

and remained at GCS of 5. She underwent tracheotomy

for better chest care and had undergone various antibiotic

treatment to contain infection. Attempts were made to

wean off from ventilation and maintain her nutritional

status.

xxvii) The relevant documentation of complainant No.1

having been advised urgent decompressive surgery and

regular counselling for the same and his denial as well as

him having given his consent and subsequently having

withdrawn it are Annexure OP-8/1.

xxviii) Complainant No.1 and family members were

counseled in Neurosurgery ICU and Dr. Vikas Bhutani-

opposite party No.3 regarding the need of domiciliary

Consumer Complaint No.982 of 2017 26

nursing care and on 7.7.2016 as the patient was on T-

piece.

xxix) It took a huge effort by the ICU team to ultimately

wean off the patient from ventilator machine and for the

first time they were able to disconnect the patient from

ventilator in a stable state on 8.7.2016 after lots of initial

trials.

xxx) On 11.7.2016 the patient’s attendants were

explained that the patient was breathing on room air and

the patient needed nursing supportive care and no active

medical management was required and also if the

hospitalization was prolonged, the chances of infection

were to increase.

xxxi) The patient gradually became more stable in her

respiratory, cardiac, metabolic and vital parameters by

effort of team of multiple specialists. As she needed good

nursing care even though she was not conscious the

same was advised and she was discharged on 16.7.2016.

At the time of discharge she was hemodynamically stable

on room air with tracheotomy tube in-situ with no fever,

accepting and tolerating RT feeds with adequate urine

output. Complainant No.1 and the private nursing staff

brought by him for domiciliary care were counselled

regarding the care for feeding tube, urinary catheter and

bedsore etc.
Consumer Complaint No.982 of 2017 27

xxxii) The patient was seen on regular basis by a team of

doctors from internal medicine (Dr. Vikas Bhutani-

opposite party No.3 and team), MICU Team, Cardiology &

CCU Teams, Neurology (Dr. J.P. Singhvi), Neurosurgery

(Dr. Pathak and Team) and thus, the allegations levelled

by the complainants in para no.5 of the complaint that Dr.

Vikas Bhutani-opposite party No.3 did not consult any

other specialist is baseless and wrong. All relevant

specialist consultations were done duly in time and

repeatedly as per need of the patient and according to her

clinical status.

xxxiii) The patient was taken up for CT scans and MRI’s

as and when required. Despite the fact that patient was

taken up for CT scan on 7.6.2016, 9.6.2016, 10.6.2016

and MRI was done on 10.6.2016 complainants in para

no.9 of the complaint have baselessly alleged that the

treating staff did not call the Nuero Surgeon or did MRI or

CT scan till 10.6.2016. Copies of relevant CT scan

reports are Annexure OP-9/1 (colly) and copies of

reports of MRIs are Annexure OP-10/1 (colly).

xxxiv) Thus complainant No.1 and other attendants of the

patient were fully counselled by the Doctors.

Complainant No.1 was informed at each and every step

by ICU teams and treating consultants starting from

getting the CT scans done (dated 7.6.2016, 9.6.2016,

Consumer Complaint No.982 of 2017 28

10.6.2016, 11.6.2016), MRI done on 10.6.2016,

development of ACS with LVF on 8.6.2016 shifting the

patient to CCU, deteriorating sensorium, development of

acute massive stroke on 10.6.2016, getting neurologist

and neurosurgeons consultations and management

options. Complainant No.1 with an ulterior motive is

projecting that he was not informed about the patient’s

status.

xxxv) The patient was again presented to ER/triage with

complaints of difficulty in breathing and raised body

temperature for 1 day at 9.00 P.M. on 19.7.2016.

Immediate initial management to stabilize the patient was

started by the team of competent doctors, which was

headed by a Senior Resident, who is Post Graduate. The

tracheotomy tube of the patient was blocked with thick

secretions, which were suctioned out, after which the

patient’s respiratory rate settled and was also given

antipyretics, intravenous fluids and nebulisation. At no

point there was any delay in management or any refusal

to take care of the patient, as there was no direct

communication of complainant No.1 with any of the

Consultants. Once stabilized she was admitted to MICU.

xxxvi) Throughout her stay in ER/Triage area, the case

was thoroughly discussed by the emergency team with

Dr. Vikas Bhutani, M.D., Medicine, Dr. Jagmohan Verma,

Consumer Complaint No.982 of 2017 29

Cardiologist, Dr. R.K. Behl, M.D., Medicine and Dr. GBS

Kang, Medical Director along with Mr. Abhijit Singh,

Facility Director. In view of concurrence it was decided to

admit the patient and the patient was admitted under Dr.

R.K. Behl, MD (Internal Medicine), doctor on call on that

day, as per instruction from the administration. She was

shifted to MICU at 12.00 A.M. on 20.7.2016 i.e. within 3

hours after proper stabilization and resuscitation and

investigation including x-ray of the chest. Hence,

allegation levelled by complainant No.1 to the effect that

opposite party No.2-Hospital refused to admit the patient

is totally baseless.

xxxvii) The patient’s history at that time of presentation

was that she was an old case of DCMP, CAD, Post

CABG (2007), old CVA (8 years back), Type 2 Diabetes

Mellitus, Hypertension, ectopic Right Kidney, h/o Acute

Coronary Syndrome (8.6.2016), Right MCA infarct

(10.6.2016), Post Decompressive Craniotomy (12.6.2016)

and Post tracheotomy (26.6.2016). She was also under

admission w.e.f. 7.6.2016 to16.7.2016 at Fortis Hospital.

In view of the critical condition of the patient she was

admitted to the Medical ICU on 19.7.2016 under Dr. R.K.

Behl keeping in view the various co-morbidities of the

patient. Cardiology consult under Dr .Jagmohan Verma,

Neurology Consult under Dr. Singhvi and Neurosurgery

Consumer Complaint No.982 of 2017 30

Consult under Dr. Ashis Pathak were sought for on

20.7.2016.

xxxviii) The patient’s attendants were counselled

daily by staff of MICU and Dr. R.K. Behl regularly, which

is also documented in the file and counselling on various

occasions i.e. 20.7.2016, 23.7.2016, daily from 25.7.2016

to 1.8.2016 and on other occasions (which is well

documented in the patient file and consent forms). On

3.8.2017 family members were apprised of difficult

weaning and guarded prognosis. They were already

apprised of unpredictable neurological improvement on

23.7.2016. They were again repeatedly counselled in the

following month at regular intervals, which are also well

documented in the patient’s file for that admission.

xxxix) On 7.8.2016 the patient was shifted to Isolation

Room in lieu of multiple Drug Assistant bacterial infection

Acinetobacter Baumani in her secretions, which could be

a source of spread of infection to the other patients

admitted in the area. Patient in Isolation Room was

looked after by the Staff Nurse round the clock and

Doctor from time to time. Hence there is no scope of

negligence.

xl) Though the patient was admitted on 19.7.2016 with

the problems of fever and breathing difficult but in

presence of multiple co-morbid conditions (Tracheomised,

Consumer Complaint No.982 of 2017 31

CAD with post CABG, with recent ACS, with poor LV

function with Dilated Cardiomyopathy with Hypertension

with old CVA, Diabetes etc.) she was discharged in a

Haemodynamically and biochemically, vitally stable

condition on 9.10.2016. Even during that admission the

patient had difficulty weaning from ventilator as similar to

the last admission. At the time of admission her TLC was

17.4, creatinine level was 1.5, Hb was 10.5, BUN was 53.

At the time of discharge her Hb was 11.8 and creatinine

level was 1.1. The patient was not forcefully discharged.

xli) The patient remained at her house till 29.11.2016.

On 30.11.2016 the patient was again admitted under Dr.

R.K. Jaswal with chief complaints of shortness of breath

with episode of tachypnea and desaturation along with

fever of one day. The patient was semi-conscious and

responding to only painful stimuli on admission and was

on tracheotomy.

xlii) 2D Echo revealed Hypokinesia of LAD territory with

LVEF-30-35% and chest x-ray revealed pulmonary

edema and hence in view of pulmonary edema she was

shifted to CCU from ER for further management. In view

of anaemia patient was given one unit of PRC. The

patient was managed with IV antibiotics and IV diuretics

and other supportive measures. Subsequently the patient

improved and was discharged on medical management

Consumer Complaint No.982 of 2017 32

with advice of domiciliary nursing and physiotherapy on

15.12.2016. On discharge she was Haemodynamically

stable with HB-11.5 gm, TLC-12.06/MM3 (Neutrophil-

63%) & Platelet count-283000. On discharge the patient

was responding to oral commands and was conscious.

The only reason for counselling such attendants to take

their patients back home is because such patients are

prone to infections in case they remain for long period in

Hospital setting because of their poor immunological

status.

xliii) The patient got again re-admitted on 17.12.2016

with complaints of breathlessness under Dr. R.K. Jaswal.

The patient was transferred from Emergency to CCU for

further management. The patient was in heart failure but

she did not have a heart attack as complained by

complainant No.1. In view of her critical condition and

other co-morbidities the patient managed conservatively.

On admission the patient was having BP-90/60 MM Hg,

RR-32/min, HR-102B/MIN. As she was desaturating,

hence the patient was given ventilator support. Her TLC

was 1810000 (Neutrophil-76%), platelet counts were

297000 and was in sepsis and hence her cultures were

sent. Urine culture was positive for pseudomonas

aeruginosa and hence treatment was modified. She was

treated on the line of sepsis and pulmonary oedema. The

Consumer Complaint No.982 of 2017 33

patient improved subsequently and repeated culture did

not show any bacterial growth. She was

haemodynamically stable and hence was advised

discharge on 2.1.2017 but her relatives refused to take

her home. The relatives of the patient were counselled for

possible hospital acquired infection but they were not

ready to take the patient home and that had been

documented in the file and signed by complainant No.1

on 2.1.2017 at 12:10 p.m. as well. Her urine culture

showed yeast cells on 16.1.2017 for which the patient

received antifungals.Tracheal secretion showed growth of

Pseudomonas aeruginosa on 18.1.2017, which was MDR

and for which she was started on appropriate antibiotics.

Her TLC count on 22.1.2017 was 23.26 thousand with

neutrophils-80% and platelets 195000 and rise in serum

creatinine levels to 5.47.

xliv) With her deteriorating condition nephrologist and

physician consults were taken and treatment was

optimized. On 23.1.2017 platelet count was 137000 and

on 24.1.2017 it was 101000 and on 25.1.2017 it was

80000. So, there was gradual fall of platelet count and

not sudden and was due to sepsis induced coagulopathy

and it was informed to patient’s relatives. In view of

multidrug resistance pseudomonas being isolated from

tracheal secretions the patient was shifted to isolation

Consumer Complaint No.982 of 2017 34

room of cardiac ICU. The patient’s INR was 6.76 on

24.1.2017 for which she was given 4 units of fresh frozen

plasma and inj. Vit.ka amp IV stat. The Patient’s INR on

25.1.2017 was 2.98.

xlv) The patient was in isolation room which had

dedicated single nurse looking after her. On 25.1.2017 at

8.45 A.M. the patient had sudden bradycardia followed by

asystole. The patient was given CPR according to ACLS

protocol, but she could not be revived and was declared

dead at 9:50 A.M. on 25.1.2017.Complainant No.1 was

informed immediately after the arrest on phone to which

he said that he was in Kurukshetra and could come after

two hours. Dr. R.K. Jaswal was present during the arrest

at the bedside and he himself called his son on phone,

who was in U.S.A. and told him that the patient’s

condition was critical and she had an cardiac arrest. Dr.

R.K.Jaswal had been regularly updating the condition of

the patient to her son on phone.

xlvi) Starting from first day of admission on 7.6.2016 till

the date the patient expired on 25.1.2017 she managed to

survive for more than 6 months with the proper

management and care of doctors at Fortis Hospital,

Mohali, which in itself was creditable and did not amount

to any medical negligence. The mortality rate in such like

cases is reportedly very high and the patient had

Consumer Complaint No.982 of 2017 35

predictors of high morbidity and mortality such as

advanced age, poorly controlled sugars, recurrent cardiac

events (by-pass surgery for heart was done in 2007),

heart failure, recurrent stroke (first stroke in 2011),

recurrent infections and compromised immunological

status.

xlvii) The complainants had repeatedly mentioned that

the treating doctors were rude. This allegation has been

levelled to berate the doctors and tarnish the image of the

Hospital. Rather the doctors were very polite to

complainant No.1 and other attendants during the entire

stay of the patient at the Hospital; otherwise, there was no

reason for the complainants to come again and again to

the same Hospital when other options and facilities as

approved by Government of Haryana were available

elsewhere also. Complainant No.1 was regularly

misbehaving with most of the doctors and staff and was

also abusive with them.”

9. It is further averred that there has been no deviation by the

Doctors at Fortis Hospital, Mohali from the acceptable and

recognized practice or line of treatment while attending to the patient

at any stage. Thus, the complainants have failed to show as to how

the opposite parties have been negligent in any manner whatsoever.

It is not the case of the complainants that the doctors of opposite

party No.2-Hospital, did not possess the skill nor it is a case where
Consumer Complaint No.982 of 2017 36

the opposite parties have not exercised the skill possessed by them.

Reference was made to “C.V.S.R. Prasad v. Sri Vasuda Nursing

Home & Others” reported in 2007(3) CPR 283 (NC) in which it has

been held that onus to prove medical negligence is on the

complainant and this can be discharged by leading evidence and a

mere averment in the complaint is not sufficient. The opposite

parties also relied upon “Kusum Sharma v. Batra Hospital and

Medical Research Centre and Ors.” reported in 2010(3) SCC 480

in which basic principles in dealing with medical negligence cases

were laid down by the Hon’ble Supreme Court. They further relied

upon judgment of Hon’ble National Commission in “Babu Rao

SatappaIrrannanvar v. KLE Society’s Hospital & Research

Centre and Anr.” reported in IV(2006) CPJ 71 (NC) in which it has

been held that in order to prove negligence of any doctor the

complainant has to lead adequate evidence with supporting medical

text. It has also been laid down that in case of un-rebutted expert

evidence it cannot be held that the doctor was negligent unless it is

proved by the complainant by leading adequate evidence with

supporting medical text that there was any negligence on the part of

the doctor. The instant complaint filed by the complainants is a

gross abuse of process of law. There are twofold reasons for the

same; firstly, complainant No.1 is a retired Haryana Government

employee and is getting regular pension from the Haryana

Government and; secondly, being a retired Haryana Government

employee complainant No.1, who is husband of the patient had also

Consumer Complaint No.982 of 2017 37

sought reimbursement of medical expenses incurred on the

treatment of the patient. In case complainant No.1 has already

received medical reimbursement on the applicable rates from the

Haryana Government, he cannot claim refund of the same amount

from the opposite parties. The very fact that he is claiming the entire

treatment expenditure from the opposite parties shows that

complainant No.1 is unjustly trying to enrich himself. In case

complainant No.1 had so many grievances with the hospital, as

alleged in the present complaint, then after institution of the

complaint he would not have himself admitted to the same Institute.

It is stated that complainant No.1 had himself got admitted from

11.4.2018 till 12.4.2018 at Fortis Hospital, Mohali. Thus, this shows

that the present complaint is not a bona fide complaint. On merits,

the admission of the patient, the treatment given to her at different

intervals of time and the payment of amounts as alleged in the

complaint have been admitted. All the averments made in the

preliminary objections have been reiterated. It has been submitted

that the patient was given the best of treatment at Fortis Hospital,

Mohali, during all her admissions. It is denied that the opposite

parties charged excessive price for the medicines, which were

available in the market for cheaper rate. There was no carelessness,

negligence or deficiency in service or unfair trade practice on the

part of the opposite parties while rendering treatment to her.

Denying all other averments made in the complaint a prayer for

dismissal of the complaint was made.

Consumer Complaint No.982 of 2017 38

Defence of opposite party No.9, 10 and 11:

10. Opposite party No.9, 10 and 11 in their separate written

statements took preliminary objections to the effect that a bare

perusal of the complaint reveals that there is no averment against

opposite party No.9 to 11 in the entire complaint except that opposite

parties Nos.9 to 11 are the active Directors of opposite party No.1

and were managing the affairs of the Company. Opposite party No.9

is no longer the Director of Fortis Healthcare Ltd. In the entire

complaint there is no allegation against opposite parties No.9 to 11.

Opposite parties No.9 to 11 were never involved in the medical

treatment or carried on any procedure on the patient. Thus, the

complaint qua opposite parties No.9 to 11 is misdirected, vexatious,

frivolous and bad in law. It is not maintainable against opposite

parties No.9, 10 and 11. It is bad for mis-joinder of necessary

parties and hence is liable to be dismissed and the names of

opposite parties No.9 to 11 are liable to be deleted from the array of

parties. Opposite parties No.9 to 11 have no personal liability for

any alleged negligent act of any doctor working in the Fortis Hospital,

Mohali. The claim of compensation for negligence can be maintained

only against the treating doctor(s)/Hospital but not against opposite

party No.9,10 and 11 in their individual capacity when opposite

parties No.9 to 11 never examined and treated the patient. No

privity of contract exists between the complainants and opposite

parties No.9 to 11. No de-jure or de-facto of ‘Consumer-Service

Provider’ exists between the complainants and opposite parties No.9

Consumer Complaint No.982 of 2017 39

to 11 impleaded as a party by name. The complainants have never

hired or availed any service of opposite parties No.9 to 11. Further

the complainants have not paid or promised to pay any consideration

to opposite parties No.9 to 11. Therefore, the complainants are not

‘consumers’ as defined under Section 2(1)(d) of the C.P. Act qua

opposite parties No.9 to 11. In the entire complaint there is not even

a single averment regarding any role specifically played by opposite

parties No.9 to 11 personally in regard to the act (s) complained of.

On merits also similar averments have been made as have been

made in the preliminary objections. It is submitted that no specific

role has been attributed to opposite parties No.9 to 11 in the entire

complaint. Denying any deficiency in service, adoption of unfair

trade practice or medical negligence on their part a prayer for

dismissal of the complaint being frivolous and vexatious under

Section 26 of the C.P. Act, was made.

Evidence of the Parties:

11. In support of their case the complainants tendered in evidence

affidavit of Raj Kumar, complainant No.1, dated 18.7.2018 as Ex.C-A

and affidavit of Ms. Ritu Manocha, complainant No.4, dated

18.7.2018 as Ex.C-B along with documents i.e. copy of prescription

slip dated 5.6.2016 as Ex.C-1, copy of bill dated 4.6.2016 as Ex.C-2,

copy of bill dated 4.6.2016 as Ex.C-3, photographs as Ex.C-4 to

Ex.C-7, copy of discharge summary dated 16.7.2016 as Ex.C-8,

copy of bill dated 16.7.2016 as Ex.C-9, copy of discharge summary

dated 9.10.2016 as Ex.C-10, copy of bill dated 9.10.2016 as

Consumer Complaint No.982 of 2017 40

Ex.C-11, copy of discharge summary dated 15.12.2016 as Ex.C-12,

copy of bill dated 13.1.2017 as Ex.C-13, copy of death summary

dated 25.1.2017 as Ex.C-14, copy of bill dated 25.1.2017 as Ex.C15,

copy of death certificate dated 25.1.2017 as Ex.C-16 and copy of

company master data as Ex.C-17.

12. On the other hand, opposite parties Nos.1 to 8 have tendered

in evidence affidavit of Abhijit Singh, Zonal Director, Fortis Hospital,

Mohali dated 9.10.2018 as Ex.OP1/A along with documents i.e. copy

of power of attorney as Ex.OP1/1, copies of discharge summaries as

Ex.OP1/2 to Ex.OP1/4, affidavit of Jatinder Katoch, Supervisor,

Medical Records, Fortis Hospital dated 8.10.2018 as Ex.OP2/A,

copy of relevant medical record of patient from 7.6.2016 to

16.7.2016, 19.7.2016 to 9.10.2016, 30.11.2016 to 15.12.2016 and

from 17.12.2016 to 25.1.2017 as Ex.OP2/1 to Ex.OP2/4, affidavit of

Dr.Vikas Bhutani dated 9.10.2018 as Ex.OP3/A, copies of degree as

Ex.OP3/1 & Ex.OP-3/2, copy of prescription as Ex.OP3/3, copy of

reports as Ex.OP3/4 (colly), copy of AACE Guidelines Type 2

Diabetes as Ex.OP3/5, copy of Triage History Sheet as Ex.OP3/6,

copy of admission sheet as Ex.OP3/7, copy of progress notes as

Ex.OP3/8, copy of daily doctors progress notes as Ex.OP3/9, copy of

daily doctors progress notes as Ex.OP3/10 (colly), copy of evaluation

and care plan as Ex.OP3/11, copy of evaluation and care plan as

Ex.OP3/11A, copy of evaluation and care plan as Ex.OP3/11B,

copies of CT Scan reports as Ex.OP3/12 (colly), copy of MRI reports

as Ex.OP3/13 (colly), copy of AHA/ASA Guidelines on Prevention of

Consumer Complaint No.982 of 2017 41

Recurrent Stroke as Ex.OP/14 (colly), copy of Guidelines for

management of early stroke as Ex.OP3/15, copy of investigation

floor chart as Ex.OP3/16, affidavit of Dr. Ashis Pathak, Director,

Neurosurgery, Fortis Hospital, Mohali, dated 9.10.2018 as

Ex.OP4/A, copies of degrees and affidavit along with certificates as

Ex.OP4/1 to Ex.OP4/4 (colly), affidavit of Dr. R.K. Jaswal dated

9.10.018 as Ex.OP5/A, affidavit of Dr. Ravi Kant Behl as Ex.OP6/A,

copies of MBBS and MD Degree as Ex.OP6/1 and Ex.OP6/2, copy

of relevant record/documentation as Ex.OP6/3, affidavit of Dr. Harsh

Batra dated 8.10.2018 as Ex.OP7/A, affidavit of Dr. Ankush Blaggan

dated 8.10.2018 as Ex.OP8/A.

13. Opposite party No.9 tendered in evidence his own affidavit

dated 6.10.2018 as Ex.OP9/A.

14. Opposite party No.10 tendered in evidence his own affidavit

dated 6.10.2018 as Ex.OP10/A.

15. Opposite party No.11 tendered in evidence his own affidavit

dated 25.10.2018 as Ex.OP11/A.

16. The complainants filed M.A. No.1710 of 2018 for cross-

examining the Doctors, who had treated the patient; namely, Dr.

Vikas Bhutani, Dr. Ashis Pathak, Dr. Rakesh Jaswal, Dr. R.K. Behal,

Dr. Harsh Batra and Dr. Ankush Blaggan i.e. opposite parties Nos.3

to 8, which was disposed of, vide order dated 30.10.2018 and the

complainants were directed to file interrogatories with this

Commission with an advance copy to the counsel for the opposite

parties. Accordingly the complainants filed separate questionnaires

Consumer Complaint No.982 of 2017 42

to be replied by opposite parties Nos.3 to 8 on 16.11.2018. Opposite

parties Nos.3 to 8 have filed their respective replies to those

questionnaires on 10.1.2019.

17. I have carefully gone through the averments of the parties and

the evidence produced by them in support of their respective

averments. I have also heard the learned counsel for the parties and

perused their written arguments. Succinctly, their contentions are as

follow.

Contentions of the Complainants:

18. The learned counsel for the complainants vehemently argued

on the same lines as averred in the complaint. Even the written

arguments are on the same pattern, rather it is the reproduction of

the complaint. Sum and substance of the arguments of the learned

counsel for the complainants is that no proper treatment was given

to the patient from the very beginning. The complainants were not

given any information about the treatment being given to the patient

though complainant no.1 throughout remained in the hospital.

Complainant No.1 had taken the photographs of the patient’s

condition when she was hospitalised. The complainants Sumit

Sharma and Amit Kumar continued to call from USA but they were

not made aware of the status of the health of the patient by Dr.

Bhutani. The health of the patient was deteriorating day-by-day but

OPs did not take any action. Dr. Bhutani was not traceable as and

when he was to be shown the patient. Complainant no. 1 even made

complaint to one of the Directors of OP no.1. Some further tests

Consumer Complaint No.982 of 2017 43

were done after a long gap. The complainants got information that

the patient had suffered mild heart attack during hospitalisation from

the nursing staff. The patient developed Acute Coronary

Syndrome(ACS) in the hospital. It is due to the negligence of the OP

doctors. Dr. Ashis Pathak had explained that a part of the skull of the

patient was to be removed for releasing the pressure on the brain. It

was assured that the patient will regain conscious after 4-5 days.

The opposite parties did not consult the Neurosurgeon and

Cardiologist. The treatment given by the opposite parties-Doctors is

against the medical norms and prescriptions which led to the brain

stroke. The complainants had spent huge amount on the treatment

of the patient. The opposite parties charged excessive prices of the

medicines. It was further argued that the principle of res ipsa

loquitur (the thing speaks for itself) is applicable in the present case

and hence, there was clear-cut deficiency in service, adoption of

unfair trade practice and gross medical negligence on the part of the

opposite parties. A prayer for acceptance of the complaint as prayed

for was made. Reference was made to the following judgments:-

i) “Malay Kumar Ganguly Vs Dr. Sukumar Mukherjee &

Ors.”, III (2009) CPJ 17(SC);

ii) “Achutrao Haribhau Khodwa v. State of Maharashtra

& Others” IV(2006) CPJ 8 (SC); and

iii) “K. Ravindra Nath (Dr.) & Anr. V. Vitta Veera Surya

Prakasam & Ors.” IV (2006) CPJ 105 (NC).

Consumer Complaint No.982 of 2017 44

Contentions of the opposite parties:

19. The learned counsel for the opposite parties assisted by the

concerned Doctors vehemently argued on the lines of their reply to

the complaint. Learned counsel contended that from 7.6.2016 to

25.1.2017,the patient was admitted on four different periods. First

admission was for the period from 7.6.2016 to 16.7.2016, second

admission was for the period from 19.7.2016 to 9.10.2016, third

admission was for the period from 30.11.2016 to 15.12.2016 and

fourth admission was for the period from 17.12.2016 to 25.1.2017.

Patient-Vijay Laxmi was suffering from Diabetes Mellitus Type 2 and

Hypertension (High Blood Pressure). She had a history of Coronary

Artery Disease (Heart Disease) and Left Ventricular Dysfunction.

She underwent coronary artery by-pass graft surgery (CABG i.e.

bypass for the Heart) in year 2006. She had suffered a brain stroke

in the November, 2011 and for that she was admitted to Fortis

Hospital, Mohali under Dr. J.P. Singhvi (Neurologist). The patient

remained admitted in Aggarwal Nursing Home, Kurukshetra from

30.5.2016 to 3.6.2016 where she was diagnosed to be a case of

Sepsis (Blood infection) with UTI. Her TLC count on the date of her

admission in Aggarwal Nursing Home was 15400. On the date of

her discharge from Aggarwal Nursing Home her TLC count on

3.6.2016 was reported at 14600 against a normal range of 6000 to

10000.

20. The patient along with her husband (complainant No.1)

reported to the OPD at Fortis Hospital, Mohali on 4.6.2016. Dr. Vikas

Consumer Complaint No.982 of 2017 45

Bhutani after taking a note of her history, after examining her and

going through reports of Aggarwal Nursing Home advised certain

investigations. The patient and her attendants were told to show him

the reports before leaving the hospital. However, patient after getting

her tests done did not care to show her reports to Dr. Vikas Bhutani-

opposite party No.3 and went back to Kurukshetra. They came on

6.6.2016 at 6.000 P.M. which is OPD closing time. The patient along

with her husband showed her test results to Dr. Vikas Bhutani. Dr.

Bhutani on seeing the deranged reports immediately advised

admission of the patient. However, despite having been advised

admission at around 6.00 PM, patient reported to the emergency of

Fortis Hospital Mohali at 11:15 P.M. She was treated and

investigated in the emergency and simultaneously the admission

process was going on. Finally after necessary formalities patient was

admitted to Fortis Hospital, Mohali at 12:10 AM on 7.6.2016 and

after required treatment was discharged from the Hospital on

16.7.2016. During this period she was also examined by Dr. Pathak

Neurosurgeon and other doctors. Dr. Vikas Bhutani, Doctor of

Internal Medicine and he did take cross consultations from other

specialists.

21. On 19.7.2016 the patient was under the care of the private

nursing staff engaged by the attendants of the patient, she was

brought to the emergency of Fortis Hospital Mohali with thick

secretions blocking the Tracheostomy tube (opening of the wind

pipe). Immediately on her arriving at the emergency of the Hospital

Consumer Complaint No.982 of 2017 46

the patient was attended to and thick secretions blocking the

Tracheostomy tube were suctioned out and patient was provided

nebulization. She was also administered antipyretics. The case of

the patient was discussed among different specialties under the

aegis of the Medical Director-Dr. G.B.S. Kang and the patient was

admitted under Dr. Ravi Kant Behl (MD Medicine). Thereafter Dr.

R.K.Behl continued with patient’s treatment in MICU (Medical

Intensive Care Unit). The patient remained admitted in Fortis

Hospital, Mohali from 19.7.2016 to 9.10.2016 referred to as second

admission. The patient, during the course of her admission, was put

on ventilator and shifted to an isolation room and she was given

treatment as per standard medical protocol.

22. After approximately 50 days of her discharge on 9.10.2016, the

patient was brought to the emergency of Fortis Hospital, Mohali on

30.11.2016 with chief complaints of shortness of breath with

episode of tachypnea (rapid breathing) and desaturation (low

oxygen levels in the blood) alongwith fever for one day. Patient at

that stage was semi-conscious and was responding to only painful

stimuli on admission and was on tracheostomy tube. In view of her

presenting complaints she was admitted under Dr. R.K.Jaswal

(Cardiologist). She was shifted to Cardiac Care Unit (CCU) of the

Hospital for further management. Patient remained admitted to

Fortis Hospital, Mohali till 15.12.2016, referred to as third admission.

During this admission Dr. R.K.Jaswal and his team along with the

doctors in CCU had sought cross consultations from doctors of

Consumer Complaint No.982 of 2017 47

other specialties. The treatment given to the patient was as per the

standard medical protocol and it is duly documented in the hospital

record and placed before this Commission.

23. On 17.12.2016 patient again presented to the Emergency of

the Hospital with complaints of breathlessness and heart failure and

was admitted to the Hospital under Dr. R.K.Jaswal. She was put on

ventilator support and started treatment as per medical protocol,

which well documented and also bears the signatures of complainant

No1 at many places.

24. All the opposite parties-Doctors under whom the patient had

taken treatment are well qualified and experienced. The paramedical

and nursing staff of the hospital is well qualified and experienced.

The hospital is equipped with latest technology and instruments. The

intention of the complainants is to get back the expenses incurred on

the treatment of the patient. A prayer for dismissal of the complaint

was made being meritless.

Consideration of the contentions of the Parties:

25. I have given my anxious thoughtful consideration to the

arguments of the learned counsel for the parties and with their help

gone through the voluminous record of the complaint case.

26. In view of the pleadings and contentions of the parties

following issues arise for consideration in the present consumer

case, which are as under:

a) Whether the complainants have been able to discharge

the onus of medical negligence?

Consumer Complaint No.982 of 2017 48

b) Whether the maxim ‘res ipsa loquitur’ (the thing speaks

for itself) is applicable in the present case?

In Re: a) Whether the complainants have been able to discharge

the onus of medical negligence?

27. The general rule is that he/she, who asserts, must prove. In

the present case initially it was the duty of the complainants to prove

that the damage to the patient was caused due to the negligence of

opposite party-Hospital and failure on the part of its doctors and

other supporting staff to adhere to the ordinary level of skill and

diligence possessed and exercised at the same time by them. It is

true that medical professionals are not expected to be of highest

possible degree of professional skills, but they are bound to employ

reasonable skill and care. Now the question remains, whether the

opposite parties and its staff exercised reasonable skill and care, in

other words whether or not the medical staff of opposite party-

Hospital fell below the standard of a reasonably competent

professional in their field?

28. I deem it appropriate to deal it as per admissions of the patient

on different dates and will be dealt under heads: First admission,

Second admission, Third admission and Fourth admission.

First Admission:

29. The patient remained admitted from 7.6.2016 to 16.7.2016.

The patient was a known case of multiple diseases (Co-morbidities).

The patient had medical history of suffering from Diabetes Mellitus

(DM) and hypertension (High Blood Pressure). She had a history of

Consumer Complaint No.982 of 2017 49

Coronary Artery Bypass Graft Surgery (CABG) in 2006 wherein

diseased vessels of the heart were bypassed. She had a history of

CVA (Cerebro Vascular Accident) which is a medical term for Brain

Stroke in 2011 for which she was admitted to Fortis Hospital, Mohali

under Dr. J.P. Singhvi (Neurologist). Complainants have tried to

project in paragraph No. 5 of their complaint as well as their written

arguments that the patient was a normal person with normal health.

The patient had multiple problems. Diabetes and hypertension are

known to produce progressive damage to blood vessels in the body

and such patient become prone to heart diseases, kidney disease

and brain stroke and involvement of other organs. Diabetic patient

has low immunity and can easily catch any infection. To say such a

patient normal and healthy is beyond imagination. Before

approaching the Fortis Hospital, Mohali on 4.6.2016 she had

remained admitted to Aggarwal Nursing Home, Kurukshetra from

30.5.2016 to 3.6.2016 where she was diagnosed as a case of Sepsis

(blood infection) with UTI (urinary infection) and was discharged from

the said facility with ongoing infection. Even samples given by her on

4.6.2016 at Fortis Hospital, Mohali reported that she was having

severe infection (her TLC was 13400/cu.mm, she had elevated CRP

of 96 with elevated ESR of 110 mm). Her Serum Creatinine was high

at 1.39, which suggests evidence of deranged kidney function

(nephropathy). She had poorly controlled sugars as her Hb1AC was

10.5, reports are Ex. OP-3/4 (at page No. 3385 to 3392). Obviously

her immune mechanism to fight back was seriously disturbed.

Consumer Complaint No.982 of 2017 50

Succinctly, the patient had past cardiac ailments, brain stroke and

raging diabetes with complication of urine infection, blood infection

and deranged kidney functions. The above ailments had

progressively worsened her health, physique and immunity. A

patient with comorbidities cannot be called normal and healthy.

30. Dr. Bhutani, on 4.6.2016 advised some investigations and had

asked the patient to come back with the available results on the

same evening so that further course of treatment could be decided

on priority but she or her husband never turned up till 6.6.2016 at

about 6.00 PM. Now in the complaint a lame excuse has been put

forward by the complainants to cover up their own fault by vaguely

stating that all reports were normal and one report was awaited so

they decided to go back to Kurukshetra; although the perusal of the

reports at page No. 289 -296 clearly shows derangement of most of

her test results. This clearly shows that complainant No.1 did not

care for doctors’ advice and urgency of health of his patient wife.

31. Now coming to the treatment given to the patient, it needs to

be noticed here that on 7.6.2016, keeping in view patient’s medical

condition and ongoing multiple problems, Dr. Bhutani gave broad-

spectrum of antibiotics for infection control through intravenous(IV)

mode, insulin for high blood sugar control, anti-platelets (blood

thinning drugs) to maintain circulation to heart and brain, beta-

blockers for care of heart and blood pressure, low molecular weight

heparin to have good flow of blood to organs of the body. During

morning round on 7.6.2016, Dr. Bhutani-opposite party No.3 also

Consumer Complaint No.982 of 2017 51

noticed that the patient was doing irrelevant talks, which is

documented on page 718. He advised CT scans of head, chest and

abdomen. However, complainant No.1 refused to give consent for

the same. This fact is also recorded on page 724, duly signed by

complainant No. 1. At 3:30 PM on the same day patient became

non-cooperative, abusive and was not willing for any treatment.

Patient’s family was counselled and finally consent was given for CT

scans. The CT scans were conducted at 5:34 PM. CT scan head

showed evidence of Gliosis (old stroke). CT Chest suggested

infection and fluid in both lungs and evidence of mild right and

minimal left pleural effusion and ground glass opacities in lingular

lobe. CT Abdomen suggested infection, prominently in left Renal

Pelvis with Perinephric Fat Stranding suggesting infection in left

kidney and right ectopic kidney.

32. At 2.00 AM on 8.6.2016 patient had laboured breathing with

bilateral crepitations in lungs, on examination her oxygen saturation

dropped SP02 was 90% with 2 Liters of oxygen per minute through

Nasal prongs (tubes). Her heart functions were noted to be weak

with LVEF of 38%, Hypokinesia, Mild MR (Mitral regurgitation). In

view of acute heart problem (Acute Coronary Syndrome) TROP-I

test was sent which reported 4.57 (against a normal value of 0-0.02

ng/ml). Accordingly, drugs to reduce fluid load (Diuretics) were

stepped up and patient was continued on blood thinning medications

(anti-platelets) anti-coagulation Low molecular Weight Heparin,

statins, beta blockers. Patient was started on Non-Invasive

Consumer Complaint No.982 of 2017 52

Ventilation (NIV) in view of falling oxygen saturation and respiratory

distress. Cardiology consultation was taken and no active change in

management was suggested (Page No. 734). Urology consult was

also taken from Dr. A.S. Bawa and team and no change in

intervention at this point was suggested (Page No. 732). In view of

heart problems (Acute Coronary Syndrome) patient was shifted to

Cardiac Care Unit (CCU) and this fact was informed to complainant

No. 1 and documented on Page No.736. Patient’s attendants were

updated about the clinical situation of the patient and the same is

also documented on Page No.732. On 9.6.2016, at 10.40 pm, the

patient became drowsy and was not following verbal commands.

Repeat CT was advised by Cardiologist Dr. Rajat Sharma (Page

No.743), which showed same findings as on 7.6.2016. Findings were

discussed with Dr.J.P. Singhvi (Neurologist) and no management

change was suggested (Page No. 748).

33. On 10.6.2016 at 7:30 AM. Dr. J.P. Singhvi, Neurologist,

examined the patient and in view of poor neurological status advised

MRI scan of the brain. MRI showed blockage of blood supply to right

middle cerebral artery (which is a blood channel of brain) because of

which there was acute swelling of the brain which was producing

increased pressure and shift in the brain to opposite side and

threatening the overall brain function and life of the patient. In

medical terms the report mentions this as "acute infarct involving

right territory”. At this point of time patient was noted to be drowsy,

Consumer Complaint No.982 of 2017 53

not obeying commands and was moving limbs to pain only. Dr. J.P.

Singhvi sought neurosurgery consultation from Dr. Ashis Pathak.

34. Dr. Ashis Pathak is M.B.B.S., M.S., M.Ch, MNAMS, FICS,

Director Neurosurgery, Fortis Hospital, Mohali has 32 years of

experience in the field of neurosurgery in India & abroad, advised

urgent decompression of the compressed brain in order to save the

patient from imminent deterioration due to progressive rise of

pressure due to swollen brain. Decompression means creating a

large opening in the skull so that the swollen compressed brain does

not get strangled in the confines of hard bony skull. Patients’ family

was counselled by the concerned Doctors. Family counselling Form

(Page No.1454-1455) is signed by Raj Kumar (complainant No.1)

and the family was duly prognosticated about the condition of the

patient. They were informed that the patient may require intubation

and ventilation & long stay in ICU. Intubation means putting a tube in

the respiratory passage for smooth breathing. Ventilation helps to

maintain normal oxygen and carbon dioxide levels through

ventilation machine. Patient was put on ventilator in order to

maintain oxygenation to body and the brain in the background of

drowsy state. Blood thinning medicines were stopped and attendants

were told to arrange three donors in order to counter the effect of

blood thinning medication (anti-platelets), as the said medicine would

not allow any surgery because bleeding will not stop. However,

despite explaining all this patient’s attendants did not give consent

for surgery.
Consumer Complaint No.982 of 2017 54

35. On 11.6.2016, at 10.00 A.M. patient’s attendants were

explained the need for urgent de-compressive surgery once again

but no consent was given to perform the much needed urgent

surgery (Page No. 760). At 11.00 A.M. patient’s attendants were

again counselled but they still needed more time to decide (Page

No.762). At 12:30 P.M. husband of the patient-Raj Kumar gave

consent and preparation for surgery was done. It was once again

explained to the patients’ attendants that the patient was critical and

the prognosis was explained (Page No. 764). At 1:30 P.M. patient’s

family members were again not sure for surgery and took time to

think (Page No.765). At 3.00 P.M. after multiple counselling and

refusals the family members ultimately agreed for surgery and the

risks and prognosis were again explained to them (Page No.766). At

4.00 P.M. when OT was ready and the patient was to be wheeled in

for surgery and the Neurosurgeon, Dr. Ashis Pathak, was eagerly

waiting to perform life-saving surgery upon her, to the utter

frustration of the surgical team, complainant No.1 withdrew consent

for surgery at the very last moment (Page No. 767). At 4:15 P.M. as

a consequence of denial for surgery patient was restarted on blood

thinning medicine, Ecospirin (Page No. 767- 768) to try and save the

remaining brain and maintain blood supply. At 7.00 P.M. the worst

fear of the doctors turned out to be true. The pressure in the brain

critically worsened which was evident when patient's right pupil

started dilating. Patient was coning due to brain damage. It had

reached critical phase and now the patient would head for death.
Consumer Complaint No.982 of 2017 55

(Page No. 769). Yet at 7:20 PM Patient‘s husband refused surgery

and agreed on starting Ecospirin and Clexane. The said note is duly

signed by complainant No.1- Raj Kumar (Page No.770).

36. On 12.6.2016, at 9.00 A.M. the patient’s family once again was

still not willing for surgery (Page No.772). At 10:45 A.M. all of a

sudden patient’s husband-Raj Kumar gave consent for surgery and

agreed for stopping blood thinners till operation and also undertook

responsibility for patient’s condition due to delay (Page 774).

Patient’s attendants were explained about the need for surgery and

sub-optimal outcome of the surgery owing to delay and

indecisiveness on their part and that the surgery was being done at

their own risk. Patient’s husband-Raj Kumar also signed the same

(Page 777). At this stage there was a desperate need to save the

life of the patient and surgery was the only possible hope. The

Neurosurgeon decided to undertake the same despite inordinate

delay on the part of the patient’s family members. However before

taking the patient for surgery patient had to once again undergo Pre-

Anesthesia check and the effect of blood thinning medications (anti-

platelets) had to be reversed by transfusion of its antidotes. But

before the patient was shifted to OT, both the pupils of the patient

dilated (Page 780) and were not reacting and the patient had M3

response, means that the patient was having progressive increased

pressure and brain damage. High Risk Informed Consent for

Decompressive Craniotomy was signed by patients’ husband-Raj

Kumar (complainant No.1) and was witnessed by his daughter-Ritu

Consumer Complaint No.982 of 2017 56

Minocha (complainant No. 4). It was clearly explained to the

patient’s attendants that besides other risks specified on the form,

patient had risk to life and would require prolonged stay and

ventilator support (The High Risk informed Consent Form is at page

1273-1274). It was explained once again that it was a desperate

attempt to save the life of patient who was in a critical state.

Decompressive Craniotomy procedure was performed as per

standard medical protocol with no untoward incidence. A large

window was created in the skull to allow the swollen brain to get

relieved of pressure and get space so that normal part of the brain

may be saved from damage and may revive its functions. The

Operation Notes are at Page No. 1245-1246.

37. After undergoing Decompressive Craniotomy surgery the

beneficial effect of the surgery was evident as pupillary size of

patient decreased but pupillary reaction did not revive due to

permanent change in affected area of deeper brain caused by

unfortunate delay in surgery which was attributable to the

complainants. Patient continued on ventilator support and medical

management. Tracheostomy was performed which gives better

access to her respiratory passage. She received anti-biotics to

control infection and was finally successfully weaned off (removed

from) the ventilator. The patient was breathing on room air on her

own as documented on Page No.982 & 983 without any need for

oxygen. The surgery not only saved the patient from death but made

her able enough to survive without ventilator machine.

Consumer Complaint No.982 of 2017 57

38. On 7.7.2016, after 24 days of surgical treatment and care the

patient’s daughter was counselled regarding shifting the patient to

home: as patient at that time required nursing domiciliary care. It is

documented on page No. 960. On 8.7.2016 patient’s family was

counselled about need for domiciliary care (Page No.967). On

11.7.2016, patients’ attendants were again explained the need for

domiciliary care for the patient. They were explained about the risk of

patient catching another infection in the Hospital and that at that time

patient was free from any infection, maintaining normal vital

parameters (blood pressure, pulse rate) and having good diabetic

control. However Patient’s attendants were still undecided.

39. On 16.7.2016, the patient was discharged in a

haemodynamically stable condition, on room air with tracheostomy

tube in situ (proper place), with no fever, accepting and tolerating

Ryle’s Tube feeds with adequate urinary output. Patient’s husband-

Raj Kumar had hired private nursing staff from private home care

agency and this fact is admitted by complainants in paragraph No.

15 of the complaint. After understanding domiciliary management

plan patient was discharged from NSICU. Patient was taken to Fortis

INN under the care of Care Givers hired by the complainant No.1-

Raj Kumar.

Second admission:

40. The patient remained admitted from 19.7.2016 to 9.10.2016 as

she was brought to the Emergency/triage of Fortis Hospital, Mohali.

Immediately treatment was started. Patient was admitted under Dr.

Consumer Complaint No.982 of 2017 58

Ravi Kant Behl, MD (Internal Medicine). The tracheostomy tube was

blocked with thick secretions which were cleared/suctioned out.

Antipyretics (for fever), Intravenous fluids for hydration and

nebulization for chest care was given. After stabilizing the patient,

she was shifted to Medical Intensive Care Unit (MICU). On

20.07.2016, consultation was sought from Dr. Jagmohan Verma,

Cardiologist and he did not advise any active cardiac intervention

(Page No.2309). Thereafter, on 20.7.2016 and 28.7.2016, neurology

consultation was taken from Dr. J.P. Singhvi, documented at pages

2302 and 2357. Neurological consultation was also taken on

22.7.2016 from Dr. Ashis Pathak, who ruled out any role of neuro

surgical intervention which is also documented at page 2324.

Patient’s family specifically her husband, daughter and son-in-law

were regularly updated about the current critical status of the patient,

line of treatment, unpredictability of neurological recovery and

guarded prognosis which is clear from Ex.OP6/3.

41. On 7.8.2016 the patient was shifted to isolation room as

tracheal secretions showed growth of bacteria called Acinetobacter

Baumani is an opportunistic pathogen in humans affecting people

with compromised immune systems and known as pseudomonas

aeruginosa, so, isolation of patient was necessary to prevent

infection from spreading to other patients. On basis of culture

sensitivity report patient was started on antibiotics namely, Colistin

and Tigecycline (Page No.2405/2410). In the Isolation room there

was a dedicated nurse who continuously looked after the patient. On

Consumer Complaint No.982 of 2017 59

23.8.2016, attendants of the patients were told to procure albumin,

as it was not available in the hospital, from outside for administration

to improve the protein levels of the patient which is documented at

page 2488.

42. It also needs to be noticed that on 13.8.2016, 27.8.2016,

30.8.2016, 2.9.2016 and 3.9.2016, due to the patient’s deranged

kidney function and other multiple problems nephrology consultation

was also sought. On 23.9.2016, dedicated family counselling was

done and the patient’s attendants were explained by the higher

administration staff and attendants were also explained that an

optimal status has been achieved in her case, however she

continued to at life threatening risk due to infection because of her

immunity. Patient’s attendants were explained about long term

management of such cases and again advised that such patients

need to be shifted out of tertiary care hospital (Page No.2937).

43. On 3.10.2016, discharge of the patient was planned but on the

request of her family it was deferred. On 9.10.2016, with the consent

of the patient’s family patient was discharged. At the time of her

discharge she was haemodynamically and in biochemically stable

condition. At the time of her admission her TLC was 17.4 and

creatinine level (kidney function) was 1.5, Hemoglobin was 10.5,

Blood Urea Nitrogen (BUN) 53 (Page No. 2947). At the time of her

discharge her Hemoglobin was 11.8 and creatinine level (kidney

function) improved to 1.1 (Page No. 2985).

Consumer Complaint No.982 of 2017 60

Third Admission:

44. The patient 3rd time remained admitted in the hospital from

30.11.2016 to 15.12.2016. On 30.11.2016, the patient was brought

to the Emergency of Fortis Hospital, Mohali with chief complaints of

shortness of breath with episode of tachypnea (increased respiratory

rate) and low oxygen level in the blood (desaturation) along with

fever for one day. Patient was semi-conscious and responding to

only painful stimuli on admission and was on tracheostomy. Heart

test by 2D ECHO revealed Hypokinesia of LAD territory with LVEF

30-35% (Page No. 1540). Chest X-ray revealed pulmonary edema

lung problem) and hence in view of pulmonary edema she was

shifted to CCU from the emergency. In view of patient having low

hemoglobin (anemia) she was given one unit of PRC. The patient

was managed with intravenous antibiotics and intravenous diuretics

and other supportive measures.

45. On 15.12.2016, as patient's condition improved the patient was

discharged on medical management with advice for domiciliary

nursing and physiotherapy. On discharge patient was

haemodynamically stable, with Hb of 11.5 gm, TLC of 12.06/MM3

(Neutrophil -63%) and platelet count of 283 thousand. On discharge

patient was responding to oral commands and was conscious. The

only reason for counselling the attendants of the patients to take

their patient back home is because such patients are prone to

infections in case they remain in Hospital for a longer period (Page

No.1578).
Consumer Complaint No.982 of 2017 61

Fourth Admission:

46. The patient was admitted fourth time from 17.12.2016 to

25.1.2017. Patient was brought to Emergency of Fortis Hospital,

Mohali with complaint of breathlessness and was in a state of heart

failure. On admission patient had a BP of 90/60mm of hg (Page No.

1810), RR- 32/min Page No. 1810), HR-102/min (Page No.1816).

She was taken to CCU and as the patient was desaturating, she was

put on ventilator support. Her TLC was -18.10 thousand (Neutrophil-

76%) suggestive of infection, Platelet-297 thousand (Page No.2041).

The patient was in sepsis and hence cultures were sent. Urine

culture showed bacterial infection of Pseudomonas aeruginosa and

hence treatment was modified (Page No. 1832). Patient was treated

on the lines of sepsis and pulmonary edema. Patient improved

subsequently and repeated culture did not show any bacterial

growth. The patient was haemodynamically stable and hence was

advised discharge on 2.1.2017 but relatives refused to take the

patient home. Patient’s relatives were counselled for possible

hospital acquired infection but they were not ready to take the patient

home and this has been documented on record and signed by her

husband Raj Kumar on 2.1.2017 at 12:10 pm as well.

47. On 7.1.2017, family members of the patient were explained

that patient’s haemodynamic condition was stable and she could be

discharged from cardiac side but relatives were not willing to take

her home (Page No. 1855). On 16.1.2017, her urine culture showed

yeast cells for which patient was given anti-fungals (Page No.1869).
Consumer Complaint No.982 of 2017 62

Tracheal secretions showed growth of pseudomonas aeruginosa on

18.1.2017 which was multi drug resistant (MDR) for which she was

put upon appropriate antibiotics documented at page 1873. Her TLC

count on 22.1.2017 was 23.26 thousand, blood neutrophils was 80%

and platelets count was 195 thousands and a rise in serum

creatinine level to 5.47 documented at page 2055. Keeping in view

hard deteriorating condition Nephrologists and Physicians were

consulted and treatment was optimised.

48. On 23.1.2017 platelets count of the patient was 137 thousand

and on 24.1.2017 it was 101 thousand and on 25.1.2017 it was 80

thousand (Page No.2055). So, there was gradual fall of platelets

count and it was due to sepsis induced coagulopathy. It was

informed to patient‘s relatives. In view of multidrug resistance

pseudomonas being isolated from tracheal secretions, the patient

was shifted to isolation room of cardiac ICU. Patient clotting rate

(INR) was raised to 6.76 on 24.1.2017 for which she was given 4

units of fresh frozen plasma and Inj. Vitamin K 1 amp IV stat

(instantaneously). Patient’s clotting test INR on 25.1.2017 was 2.98.

In isolation room, emergency bell and a dedicated single nurse was

looking after her. It is not clear as to what complainants want to

prove by making this allegation that the bell in the isolation room was

not working; because patient was 'un-conscious' and an unconscious

patient cannot be expected to use the bell in the isolation room.

49. On 25.1.2017 at 8:45 A.M. the patient had sudden bradycardia

(urgent fall of pulse rate) followed by asystole (stoppage of heart).

Consumer Complaint No.982 of 2017 63

Patient was given CPR according to ACLS protocol, but she could

not be revived and was declared dead at 9:50 am on 25.1.2017. The

patient’s husband, Mr. Raj Kumar was informed immediately on

phone to which he said that he was in Kurukshetra and could come

after two hours. Cardiologist Dr. RK Jaswal was present during the

cardiac arrest at the bedside and he himself called the patient’s son

on phone (who was in U.S.A.) and told him that the patient’s

condition was critical and she had a cardiac arrest. Dr. R.K. Jaswal

had been regularly updating the condition of the patient to the

patient’s son on phone (Page No.1892 to 1893).

50. Complainant No.1-Raj Kumar after death of his wife himself

chose to be admitted at Fortis Hospital, Mohali for his own ailments

and treatment on multiple occasions. It proves that complainants

were satisfied with the treatment provided at Fortis Hospital, Mohali

otherwise he would not have chosen to undergo treatment at Fortis

Hospital, Mohali for himself. Discharge records are Ex.OP1/2 to

Ex.OP1/4 at page No.690 to 695.

Legal Position:

51. In “Bhalchandra @ Bapu & Another v. State of

Maharashtra” AIR 1968 SC 1319, Hon’ble Supreme Court opined

that while negligence is an omission to do something which a

reasonable man, guided upon those considerations which ordinarily

regulate the conduct of human affairs, would do, or doing something

which a prudent and reasonable man would not do; criminal

negligence is the gross and culpable neglect or failure to exercise

Consumer Complaint No.982 of 2017 64

that reasonable and proper care and precaution to guard against

injury either to the public generally or to an individual in particular,

which having regard to all the circumstances out of which the charge

has arisen, it was the imperative duty of the accused person to have

adopted.

52. Hon’ble Supreme Court of India in “Vinod Jain v. Santokba

Durlabhji Memorial Hospital”, CPJ 2019 (2) 99 (SC), while

dismissing the case of the complainant has passed following order:

“5. The appellant, after the initial period of mourning, is

stated to have consulted various doctors, including his
son, who is stated to be a doctor practising in USA. It is
his belief, on the basis of such discussion, that the
respondents were guilty of medical negligence in the
manner in which medical treatment was administered to
his wife and her subsequent discharge from Respondent
No.1-Hospital. The appellant filed a complaint with the
Medical Council of Rajasthan, a statutory body
constituted under the Rajasthan Medical Act, 1952, but
that endeavour proved to be unsuccessful as no case of
medical negligence was found in the given facts of the
case, in terms of the order passed on 13-7-2012. The
process of coming to this conclusion included the
response of Respondent No.2-Doctor to a panel of
eleven doctors, which scrutinised the complaint and the
material placed before the panel, by the appellant. The
further appeal of the appellant, before the Medical
Council of India was rejected as time barred on 8.3.2013.
The next legal journey of the appellant began by
approaching the State Commission, by filing a consumer
complaint. The appellant sought to make out a case of:
(a) inappropriate and ineffective medication;
(b) failure to restart the cannula for IV medication;
(c) premature discharge of the deceased despite her
condition warranting treatment in the ICU;
(d) oral administration of Polypod antibiotic, despite her
critical condition, which actually required intravenous
administration of the medicine.
6. On the other hand, the stand of the respondents was
that when the patient was discharged, she was afebrile,
her vitals were normal and she was well hydrated, with
no infection in her chest or urinary tract. She was stated
Consumer Complaint No.982 of 2017 65

to be clinically stable from 15-10-2011 to 17-10-2011 and

that is why she was so discharged on 18-10-2011, with
proper medical prescriptions for the next 5 days.
However, the State Commission found in favour of the
appellant and directed a compensation of Rs.15 lakh and
costs of Rs.51,000/- to be paid to the appellant.
Aggrieved by the said order of the State Commission, the
respondents preferred an appeal before NCDRC, which
exonerated the respondents of any medical negligence
vide the impugned order dated 1-8-2017. It was opined
that at the highest, it could be termed as a case of wrong
diagnosis and certainly not one of medical negligence.
7. In order to appreciate the opinion of NCDRC, it would
be appropriate to lay down the legal principles which
would apply in cases of medical negligence.
8. “Negligence” has been defined in Halsbury’s Laws of
England, 4th Edn., Vol. 26, pp 17-18 and extracted in
“Kusum Sharma v. Batra Hospital & Medical
Research Centre” (2010) 3 SCC, 480 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.’”
9. A fundamental aspect, which has to be kept in mind is
that a doctor cannot be said to be negligent if he is acting
in accordance with a practice accepted as proper by a
reasonable body of medical men skilled in that particular
art, merely because there is a body of such opinion that
takes a contrary view (Bolam v. Friern Hospital
Management Committee). In the same opinion, it was
emphasised that the test of negligence cannot be the test
of the man on the top of a Clapham omnibus. In cases of
medical negligence, where a special skill or competence
is attributed to a doctor, a doctor need not possess the
highest expert skill, at the risk of being found negligent,
and it would suffice if he exercises the ordinary skill of an
ordinary competent man exercising that particular art. A
situation, thus, cannot be countenanced, which would be
a disservice to the community at large, by making doctors
think more of their own safety than of the good of their
patients.
Consumer Complaint No.982 of 2017 66

10. This Court in another judgment in Jacob Mathew v.

State of Punjab dealt with the law of negligence in
respect of professionals professing some special skills.
Thus, any individual approaching such a skilled person
would have a reasonable expectation of a degree of care
and caution, but there could be no assurance of the
result. A physician, thus, would not assure a full recovery
in every case, and the only assurance given, by
implication, is that he possesses the requisite skills in the
branch of the profession, and while undertaking the
performance of his task, he would exercise his skills with
reasonable competence. Thus, a liability would only
come, if: (a) either the person (doctor) did not possess
the requisite skills, which he professed to have
possessed; or (b) he did not exercise, with reasonable
competence in a given case, the skill which he did
possess. It was held not to be necessary for every
professional to possess the highest level of expertise in
that branch in which he practices. In the said opinion, a
reference was, once again, made to Halsbury’s Laws of
England, as under:
“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.”
11. In “Hucks v. Cole” 4(1968) 118 now LJ 469 Lord
Denning speaking for the Court observed as under:
“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
another. A medical practitioner would be liable only
where his conduct fell below that of the standards of a
reasonably competent practitioner in his field.”
12. In para 89 of the judgment in Kusum Sharma
(supra) the test had been laid down as under:
“89. On scrutiny of the leading cases of medical
negligence both in our country and other countries
specially the United Kingdom, some basic principles
emerge in dealing with the cases of medical negligence.
While deciding whether the medical professional is guilty
of medical negligence following well-known principles
must be kept in view:
I. Negligence is the breach of a 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
Consumer Complaint No.982 of 2017 67

something which a prudent and reasonable man would

not do.
II. Negligence is an essential ingredient of the offence.
The negligence to be established by the prosecution
must be culpable or gross and not the negligence merely
based upon an error of judgment.
III. The medical professional is expected to bring 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.
IV. A medical practitioner would be liable only where his
conduct fell below that of the standards of a reasonably
competent practitioner in his field.
V. In the realm of diagnosis and treatment there is 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.
VI. The medical professional is often called upon to adopt
a procedure which involves higher element of risk, but
which he honestly believes 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 the desired
result may not amount to negligence.
VII. 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.
VIII. It would not be conducive to the efficiency of the
medical profession if no doctor could administer medicine
without a halter round his neck.
IX. It is our bounden duty and obligation of the civil
society to ensure that the medical professionals are not
unnecessarily harassed or humiliated so that they can
perform their professional duties without fear and
apprehension.
X. The medical practitioners at times also have to be
saved from such a class of complainants who use
criminal process as a tool for pressurising the medical
professionals/hospitals, particularly private hospitals or
clinics for extracting uncalled for compensation. Such
malicious proceedings deserve to be discarded against
the medical practitioners.
Consumer Complaint No.982 of 2017 68

XI. The medical professionals are entitled to get

protection so long as they perform their duties with
reasonable skill and competence and in the interest of
the patients. The interest and welfare of the patients have
to be paramount for the medical professionals.”
13. Now turning to the application of the aforesaid
principles to the facts at hand. It is material to note that
Respondent No.1-Hospital promptly attended to the wife
of the appellant. Respondent No.2, physician, once
again, attended to her promptly, and started her on
antibiotic treatment. The nasal feed tube was reinserted
promptly. However, in the early hours on the next day, on
16-10-2011, the cannula stopped functioning and instead
of recannulating the patient, oral administration of the
antibiotic Polypod was found justified. It is this aspect,
which according to the appellant, amounts to medical
negligence. The explanation offered by Respondent
No.2-Doctor was that when he attended the patient at
11.00 a.m. on 16-10-2011, he found that the drip had
been disconnected, on account of all peripheral veins
being blocked due to past chemotherapies, and that the
drip had been stopped, the night before itself, at the
instance of the appellant. Taking into consideration the
fact that the patient was normal, afebrile, well hydrated
and displayed normal vitals, the oral administration of the
tablet was prescribed. This, according to NCDRC was
the professional and medical assessment by Respondent
No.2-Doctor, arrived at on the basis of a medical
condition of the patient, and could not constitute medical
negligence.
14. We see no reason to differ from the view
expressed by NCDRC, keeping in mind the test
enunciated aforesaid. Respondent No.2-Doctor, who was
expected to bring a reasonable degree of skill,
knowledge and care, based on his assessment of the
patient, prescribed oral administration of the antibiotic in
that scenario, especially on account of the past medical
treatments of the wife of the appellant, because of which
the veins for administration of IV could not be located.
Her physical condition was found to be one where the
oral administration of the drug was possible.
15. The appellant has also sought to make out a case
that the blood culture report required his wife to be kept
in the hospital. This was again a judgment best arrived at
by Respondent No.2-Doctor, based on her other stable
conditions, with only the WBC count being higher, which,
as per the views of Respondent No.2-Doctor, could be
treated by administration of the antibiotic drug orally,
which was prescribed for 5 days, and as per the
Consumer Complaint No.982 of 2017 69

appellant, was so administered. In the perception of the

doctor, the increase in lymphocytes in the blood count
was the result of the patient displaying an improved
immune response to the infection. It is in this context that
NCDRC opined that at best, it could be categorised as a
possible case of wrong diagnosis.
16. In our opinion, the approach adopted by NCDRC
cannot be said to be faulty, while dealing with the role of
the State Commission, which granted damages on a
premise that Respondent No.2-Doctor could have
pursued an alternative mode of treatment. Such a course
of action, as a super-appellate medical authority, could
not have been performed by the State Commission.
There was no evidence to show any unexplained
deviation from standard protocol. It is also relevant to
note that the deceased was medically compromised by
the reason of her past illnesses. The deceased was
admitted to two other hospitals, post her discharge from
Respondent No.1-Hospital. The moot point was whether
her admittance and discharge from Respondent 1
Hospital was the sole, or even the most likely cause of
her death. The death had been caused by a multiplicity of
factors. In the end, we may also note that the medical
certificate issued for the cause of death by Fortis Escorts
Hospital cited septic shock due to multiple organ failure
as the immediate cause of death, with her diabetic
condition being an antecedent cause, as also the multiple
malignancies, post chemotherapy and radiotherapy all
contributing to her passing away.
17. We appreciate the pain of the appellant, but then,
that by itself cannot be a cause for awarding damages for
the passing away of his wife. We have sympathy for the
appellant, but sympathy cannot translate into a legal
remedy. We cannot fault the reasoning of NCDRC. Thus,
the result is that the appeal is dismissed, leaving the
parties to bear their own costs.”

53. In “Poonam Verma v. Ashwin Patel & Ors.” II(1996) CPJ 1

(SC) Hon’ble Supreme Court delved into the issue of what is medical

negligence. In the context, it has been held as under:

“Negligence has many manifestations —it may be active

negligence, collateral negligence, comparative
negligence, concurrent negligence, continued
negligence, criminal negligence, gross negligence,
hazardous negligence, active and passive negligence,
willful or reckless negligence or Negligence per se.”
Consumer Complaint No.982 of 2017 70

54. Negligence per se is defined in Black’s Law Dictionary as

under:

“Negligence per se—Conduct, whether of action or omission,

which may be declared and treated as negligence without any
argument or proof as to the particular surrounding
circumstances, either because it is in violation of a statute or
valid municipal ordinance, or because it is so palpably opposed
to the dictates of common prudence that it can be said without
hesitation or doubt that no careful person would have been
guilty of it. As a general rule, the violation of a public duty,
enjoined by law for the protection of person or property, so
constitutes.”

55. In “Jacob Mathew (Dr.) v. State of Punjab & Another” III

(2005) CPJ 9 (SC) Hon’ble Supreme Court while dealing with the

case of negligence by professionals also gave illustration of medical

and legal profession and observed in para 19 as under:

“19. In the law of negligence, professionals such as lawyers,

doctors, architects and others are included in the category of
persons professing some special skill or skilled persons
generally. Any task which is required to be performed with a
special skill would generally be admitted or undertaken to be
performed only if the person possesses the requisite skill for
performing that task. Any reasonable man entering into a
profession which requires a particular level of learning to be
called a professional of that branch, impliedly assures the
person dealing with him that the skill which he professes to
possess shall be exercised and exercised with reasonable
degree of care and caution. He does not assure his client of
the result. A lawyer does not tell his client that the client shall
win the case in all circumstances. A physician would not
assure the patient of full recovery in every case. A surgeon
cannot and does not guarantee that the result of surgery would
invariably be beneficial, much less to the extent of 100% for
the person operated on. The only assurance which such a
professional can give or can be understood to have given by
implication is that he is possessed of the requisite skill in that
branch of profession which he is practising and while
undertaking the performance of the task entrusted to him he
would be exercising his skill with reasonable competence. This
is all what the person approaching the professional can expect.
Judged by this standard, a professional may be held liable for
negligence on one of two findings: either he was not
Consumer Complaint No.982 of 2017 71

possessed of the requisite skill which he professed to have

possessed, or, he did not exercise, with reasonable
competence in the given case, the skill which he did possess.
The standard to be applied for judging, whether the person
charged has been negligent or not, would be that of an
ordinary competent person exercising ordinary skill in that
profession. It is not necessary for every professional to
possess the highest level of expertise in that branch which he
practices.”

56. In Achutrao Haribhau Khodwa’s case (supra), Hon’ble

Supreme Court noticed that in the very nature of medical profession,

skill differs from doctor to doctor and more than one alternative

course of treatment are available, all admissible. Negligence cannot

be attributed to a doctor so long as he is performing his duties to the

best of his ability and with due care and caution. 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.

57. In “Dr. M. Kochar vs Ispita Seal”, FA No.368 of 2011

decided on 12.12.2017, Hon’ble National Consumer Dispute

Redressal Commission (NCDRC) was confronted with the issue of

failure in IVF procedure. The complainant in the case complained of

failure in IVF procedure and demanded compensation from the

Doctor on account of medical negligence. The National Commission

in the said case held that “No cure/ no success is not a

negligence”, thus fastening the liability upon the treating doctor is

unjustified.
Consumer Complaint No.982 of 2017 72

Conclusion:

58. In view of the above discussion and settled legal position, I

have come to the conclusion that medical negligence cases do

sometimes involve questions of factual complexity and difficulty and

may require the evaluation of technical and conflicting evidence. In

the present case complainants have not been able to discharge the

onus of proving on the balance of probabilities, the negligence

averred against the opposite parties. The opposite parties have

brought on record sufficient cogent evidence to the effect that patient

when admitted for the 1st time was having septicemia and UTI.

Beside this, the patient was comorbidly challenged and

physiologically frail due to Diabetes Mellitus Type 2 (DM),

Hypertension (HTN) and old Cerebral Vascular Accident (CVA) Brain

stroke. The patient had also undergone Coronary Artery Bypass

Graft (“CABG.”) in 2006. Sepsis is a life-threatening disease results

into organ dysfunction caused by dysregulated host response to

infections. Even after clinical recovery from sepsis the patient has

persistent alternation in innate and adaptive immune response result

into chronic inflammation, immune suppression and bacterial

persistence. Diabetes causes a functional immune deficiency

resultantly reduces immune cell function. Sepsis is associated with

profound circulation, cellular and metabolic abnormalities. Long-term

sepsis coupled with, comorbidity increases mortality rate in the range

of 60 to 80%. The medical literature reveals that survival rate of

diabetic patient start to deteriorate 3 years after CAGB. In the

Consumer Complaint No.982 of 2017 73

present case keeping in view complexities of the patient

multidisciplinary meetings and consensus opinion of doctors of

various disciplines; namely, experts in medicine, neurosurgeon,

cardiologists and physicians were held and appropriate treatment

was given after deliberations and consultations. All this is duly

documented in the medical record and placed on record of this

consumer case. The patient was suffering from multiple co-existing

diseases which were more than 4 chronic conditions as have been

referred in foregoing paragraphs. The complainants also caused

delay in giving consents when the various procedures were to be

performed. The dilly dallying attitude of the complainants in giving

consent is also documented in the medical record brought before

this Commission by the opposite parties. In this process valuable

span of time across which co-occurrence of existed was lost. The

sequence in which comorbidities appeared in such a frail patient

resulted into implications for genesis, prognosis and treatment. This

resulted into worse health outcomes, more complex clinical

management and increased healthcare costs exponentially. It is not

the case of the complainants that doctors who diagnosed and

treated the patient were not qualified and not possessing the

expertise in their respective field of practice. Their qualifications too

have been mentioned in the foregoing paragraphs. The

complainants have failed to prove through credible and persuasive

evidence that doctors and supporting paramedical staff of the

hospital failed to adhere to the required standard medical protocol.

Consumer Complaint No.982 of 2017 74

The treatment and diagnosis in issue was accorded with sound

medical practice and doctors have considered comparative risks and

benefits and reached defensible conclusions. The complainants

have failed to prove any deficiency in service on the part of opposite

parties while providing treatment to the patient. Accordingly, the

issue in question is decided against the complainants.

In Re: b) Whether the maxim ‘res ipsa loquitur’ (the thing

speaks for itself) is applicable in the present case?

59. The application of the maxim ‘res ipsa loquitur” in medical

negligence cases can be used with a caveat. It can only be applied if

the alleged negligence is derived from something absolute and the

occurrence could not reasonably have taken place without

negligence. The maxim ‘res ipsa loquitur’ is used to describe the

proof of facts which are sufficient to support an inference that the

opposite parties were negligent and thereby to establish a prima

facie case against it. It is not a presumption of law, but a permissible

inference, which Commission/Court may draw, if upon all the facts, it

appears to be justified. It is invoked in the circumstances, when the

known facts relating to negligence consists of the occurrence itself or

where occurrence may be of such a nature as to warrant an

inference of negligence. The maxim alters neither the incidence of

onus nor the rules of pleading.

60. In Malay Kumar Ganguly’s case (supra) Hon’ble Supreme

Court dealt with the criminal negligence and civil negligence, opinion

of expert witness and in Para no.133, observed as follows:-

Consumer Complaint No.982 of 2017 75

“133. In Nizam Institute of Medical Sciences Vs. Prasanth

S. Dhananka & Others, II(2004) CPJ 61 (SC)=2009(7)
SCALE 407, this Court held as under:-

“32. We are also cognizant of the fact that in a case involving

medical negligence, once the initial burden has been
discharged by the complainant by making out a case of
negligence on the part of the hospital or the doctor concerned,
the onus then shifts on to the hospital or to the attending
doctors and it is for the hospital to satisfy the Court that there
was no lack of care or diligence...”

61. Hon’ble Supreme Court in Achutrao Haribhau Khodwa’s case

(supra) held the respondents guilty of medical negligence, as they

left mop in the body of patient during operation, which led to death of

the patient.

62. Hon’ble National Commission in K. Ravindra Nath (Dr.) &

another’s case (supra), where surgical mop was left in the abdominal

cavity of the complainant, which resulted in complication and

necessitated second surgery, held the appellants of guilty of medical

negligence and directed them to pay compensation of ₹3.5 Lakh.

63. The ratio of law laid down in the above cited authorities is not

applicable in the present case as in those cases facts clearly

revealed that while performing operation something had been left in

the abdomen. Rather, in present case the patient was suffering from,

multiple co-existing diseases (four more chronic conditions) and had

past history of various treatments such as CABG, CVA, DM and

HTN and also sepsis and UTI and was frail not healthy and normal

patient. Nothing has been produced on record by the complainants

that the patient was not suffering from pre-existing chronic diseases.

Rather the ratio of the judgments cited by the learned counsel for the
Consumer Complaint No.982 of 2017 76

opposite parties is fully applicable to the facts of the case. On the

basis of the above discussion and legal position I conclude that the

principle of res ipsa loquitur is not applicable in the present case.

Accordingly, the issue is decided against the complainants.

64. In view of the above discussion and settled position of law the

consumer complaint is meritless and is accordingly dismissed,

leaving the parties to bear their own costs.

65. A copy of this judgment be provided to the parties free of cost

as per the statutory requirements and thereafter the file be

consigned to Record Room.

66. The complaint could not be decided within the statutory period

due to heavy pendency of court cases and deficiency of staff.

(JUSTICE PARAMJEET SINGH DHALIWAL)

PRESIDENT
July 31, 2020
Bansal