MANU/QI/0221/2024

BEFORE THE DELHI STATE CONSUMER DISPUTES REDRESSAL COMMISSION

NEW DELHI
Complaint Case No. 288/2009
Decided On: 02.09.2024
M. Venkateshwar Rao and Ors. Vs. Banarasi Das Chandiwala Institute of Medical
Sciences and Ors.
Hon'ble Judges/Coram:
Sangita Dhingra Sehgal, J. (President), J.P. Agrawal, Member (G) and Pinki, Member (J)
Counsels:
For Appellant/Petitioner/Plaintiff: I.S. Kohli, Advocate
For Respondents/Defendant: Rajesh Kajla, Pradeep Kumar, Moh. Azhar, Vaibhav
Agnihotri, Devansh Gupta, G.S. Sharma, Yuvraj Sharma, Proxy for Pankaj Seth and
Navneet Kumar, Advocates
Case Category:
MATTERS RELATING TO CONSUMER PROTECTION
JUDGMENT
Sangita Dhingra Sehgal, J. (President)
1 . The present complaint has been filed by the Complainants before this Commission
alleging medical negligence and deficiency in service by the Opposite parties and have
prayed the following:
"1) To order the Respondents No. 1 to 6 to pay a sum of Rs. 95 lacs as
compensation as the complainants have suffered mental agony, pi, social
harassment, loss of their child due to the deficiency in service, unethical
approach, professional misconduct and medical negligence of the Respondents.
2) Cost and expenses be also granted in favour of the Complainant.
3) Pass any other or further orders as this Hon'ble National Commission deems
fit and proper in the interest of justice."
2. Brief facts necessary for the adjudication of the present complaint are that the son of
the Complainant (hereinafter referred to as the "patient") who was a fit and active 10
year old child had developed tonsils in the month of November, 2007 and was brought
to Opposite Party No. 1-Banarasidas Chandiwala Hospital for treatment. The
Complainant was advised to meet Opposite Party No. 2-Dr. Yogesh Jain, ENT Surgeon
who suggested an operation for tonsils. On 12.01.2008, pre-anesthesia check-up was
conducted by Opposite Party No. 3-Dr. Geeta Gupta, Anesthetist and the patient was
declared fit for surgery. As per the advice and instructions from Opposite Party No. 2,
the patient was admitted in Opposite Party No. 1-Hospital on 17.01.2008 around 7.30
PM for surgery. The surgery was performed on 18.01.2008 at around 6.30 AM. At
around 9.00 AM, Opposite Party No. 2-Dr. Yogesh Jain informed the Complainants that
the patient has undergone a cardiac arrest but has again recovered and asked the
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Complainant to get some medicines, which were immediately brought and handed-over
to the treating doctor. After sometime, the Complainants inquired about the condition of
the patient but no satisfactory reply was given by Opposite Party No. 2 or by the
supporting staff. Thereafter, Opposite Party No. 2 & 3 informed the Complainants that
the Opposite Party No. 1-hospital has got no ICU & Ventilator facility and advised them
to shift the patient to some other hospital. Subsequently, Opposite Party No. 2
telephonically called for an ambulance and advised the Complainants to shift the patient
to Opposite Party no.6-Max Super Specialty Hospital, Saket, New Delhi. The
Complainants were aghast to see the condition of the patient who was lying on the table
with his eyes and mouth open. Thus, left with no other option, the Complainants shifted
the patient to the Paediatric Intensive Care Unit of Opposite Party No. 6-Max Super
Specialty Hospital, Saket at 12.30 Noon. At around 5.30 p.m., Opposite Party No. 4-Dr.
Pankaj Vohra and Opposite Party No. 5-Dr. Mritunjay Pao told the Complainants that due
to multiple organ failure, the patient was not responding to the treatment. Finally, on
19.01.2008, around 8.00. AM the patient was declared dead.
3 . The Complainants have submitted that Opposite Party No. 2-Dr. Yogesh Jain and
Opposite Party No. 3-Dr. Geeta Gupta concealed the vital information of the patient's
condition and were well aware that the hospital was not equipped with requisite
facilities to handle critical cases, yet chose to proceed with the surgery in are thus liable
for negligent conduct. Secondly, it is submitted that Opposite Party No. 4 & 5 also acted
in the most unethical and unprofessional manner just to loot the Complainants and
make money. It is further submitted that despite having full knowledge regarding the
condition of the patient, Opposite Parties No. 4 & 5 admitted the patient and kept him
for a day and declared him dead on 19.01.2008. Lastly, the Complainants have
submitted that all the Opposite Party doctors and hospitals are responsible for the death
of the patient and are guilty of gross medical negligence. Aggrieved by the aforesaid
conduct of the Opposite Parties, the Complainant has preferred the present Complaint.
4. The Opposite Party No. 1 has filed its written statement and has stated therein that
after surgery, no complications arose and the patient was handed-over to the
Anesthetist for reversal of Anaesthesia. Unfortunately, the patient suffered cardiac arrest
during the process of reversal of Anaesthesia from which he was resuscitated and the
Complainants were informed about the same. Secondly, it is submitted that the
Complainant No. 1 requested the Opposite Party No. 2 to consult his known
Anaesthetist-Dr. Govil in Max Hospital which was conceded to and Dr. Govil in
consultation with the Complainants insisted that the patient be shifted to Opposite Party
No. 6-Hospital. Thirdly, it is submitted that the Opposite Party No. 1&2 provided all
assistance in transferring the patient to Opposite Party No. 6-Max Super Specialty
Hospital. Lastly, it is submitted that the patient was treated with due care and
responsibility as per standard medical practice with best medical treatment no
negligence can be attributed to the Opposite Party No. 1 whatsoever.
5 . Opposite Party No. 2 has filed its written statement and has stated therein that the
complaint is misconceived, groundless, frivolous and vexatious & the Complainant has
suppressed the material facts of the case. It is submitted that the surgery was
performed very well and after finishing the surgery, it is the role of the Anaesthetist to
reverse the patient from Anaesthesia. Secondly, it is submitted that it was the
Complainant's decision to shift the patient to another hospital and at no point it was
represented that adequate life support system and Ventilator is not available. Lastly it is
submitted that there is no deficiency of service or medical negligence on the part of
Opposite Party No. 2.

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6 . Opposite Party No. 3 has filed her reply and has stated therein that Expert Report
does not suggest that any wrong line of drug or dosage was administered to the patient.
Secondly, it is submitted that Anaesthetic Drugs can have various effects on patient-to-
patient basis including synergistic and idiosyncratic effects and are known reactions,
however are rare in nature. Thirdly, it is submitted that the when the patient was shifted
to Max Hospital, Saket, the symptoms of pulmonary congestion were not found so the
question of cardiac arrest due to pulmonary congestion does not arise. Lastly, it is
submitted that the medical records and report of the Expert Committee does not divulge
any negligence on the part of Opposite Party No. 3 while treating the patient.
7 . Opposite Party No. 4 to 6 have filed their joint Written Statement and have stated
that all possible measures were taken to save the patient, however despite best efforts
that any reasonable medical practitioner would make, the patient was succumbed to
death due to multiple organ failure and cardiac arrest. It is further submitted that the
Cardiac Arrest that was the death knell of the patient occurred during the Tonsillectomy
procedure that was carried out in the premises and under the supervision of Opposite
Parties No. 1-3 and Opposite Parties No. 4 -6 cannot be burdened with the actions or
omissions of Opposite Parties No. 1-3. Hence, the Complainant be dismissed qua OP-4
to 6.
8 . Opposite Party No. 7-New India Assurance Company has filed its written statement
and has stated therein that there is no Privity of Contract between the Complainant and
the Insurance Company, and, therefore, the Opposite Party No. 7 cannot be fastened
with the liability to compensate the Complainant. It is further submitted that the
Complaint does not disclose or establish any deficiency or negligence. Lastly, it is
submitted that the Complaint is devoid of any documentary evidence and is filed with
malafide intention to extract heavy amount from the Opposite Parties as compensation.
9. Opposite Parties No. 8 i.e. The United India Insurance Company has filed its written
statement and has submitted therein that the present Complaint is misconceived,
groundless and vexatious and filed without any justified cause. It is further submitted
that the Complainant has no cause of action against the United India Insurance
Company Ltd. Secondly, it is submitted that the Complaint is not maintainable as there
is absolutely no consumer dispute pending in between the United India Insurance Co.
Ltd. and the Complainant and hence the present complaint deserves to be dismissed.
10. Opposite Party No. 9 i.e. ICICI Lombard General Insurance Company Ltd. has filed
its written statement and has submitted that it has been wrongly added as a party in the
present proceedings and liable to be deleted from the array of parties. Lastly, it is
submitted that no cause of action ever arose against the Opposite Party No. 9 and in
favour of the complainant. Hence, the present complaint is liable to be dismissed qua
the Opposite Party No. 9 on this sole ground itself.
11. The Complainant has filed the Rejoinder rebutting the written statement filed by
Opposite Parties No. 1 to 6 and reiterated the averments as made out in the Complaint.
1 2 . Parties have filed their Evidence by way of Affidavit in order to prove their
averments on record.
13. We have perused the material available on record and heard the Counsels for the
parties at length.
1 4 . The facts of the case reflect that the patient was suffering from problems of
Recurrent Tonsillitis and snoring at sleep. The patient was consequently admitted to the
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Respondent No. 1-Hospital for undergoing Adenotonsillectomy (removal of the tonsils
and adenoids) at the hands of Opposite Party No. 2-Dr Yogesh Jain & Opposite Party
No. 3- Dr. Geeta Gupta. Subsequently, the patient went into eternal slumber and
eventually succumbed to his ailments post surgery.
15. Therefore, the first question that falls for our consideration is whether the conduct
of the Opposite Parties No. 1-3 was the proximate cause of death of the patient and
whether such conduct amounts to medical negligence.
16. At the outset, when any medical negligence is alleged, whether it pertains to pre or
post-operative medical care or to the follow-up care at any point in time at the hands of
the treating doctors, it is always apposite to take note of the constituents of negligence
and the exposition of law as laid down by the Hon'ble Apex Court in Jacob Mathew v.
State of Punjab and Anr MANU/SC/0457/2005 : 2005:INSC:334 : (2005) 6 SCC 1 as:
"The test for determining medical negligence as laid down in Bolam case
[MANU/QB/0487/1957 : (1957) 2 All ER 118 (QBD), WLR at p. 586] holds good
in its applicability in India.
xxx xxx xxx
2 4 . The term "negligence" has been defined in Halsbury Laws of England
(Fourth Edition) para 34 and as settled in Kusum Sharma and Others v. Batra
Hospital and Medical Research Centre and Others as under:
"45. According to Halsbury's Laws of England, 4th Edn., Vol. 26 pp. 17-
18, the definition of negligence is as under:
"22. Negligence.-Duties owed to patient. A person who holds
himself out as ready to give medical advice or treatment
impliedly undertakes that he is possessed of skill and
knowledge for the purpose. Such a person, whether he is a
registered medical practitioner or not, who is consulted by a
patient, owes him certain duties, namely, a duty of care in
deciding whether to undertake the case; a duty of care in
deciding what treatment to give; and a duty of care in his
administration of that treatment. A breach of any of these
duties will support an action for negligence by the patient."
17. What is to be gleaned from the aforesaid decision is that to establish a claim for
medical negligence, it is imperative to meet the following criterion i.e. firstly, the
patient was owed a duty of care. Secondly, that duty was breached by a deviation from
accepted standards of care. Thirdly, the patient suffered damages and fourthly, the
damages suffered were a direct result of the medical provider's breach of duty.
18. It is worthwhile to mention here that 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 intended purpose. Adverting to the facts of the present case, it is
crystal clear from the face of the record that the patient was handed over post surgery
to the Opposite Party No. 3-Anaesthesiologist for reversal of anaesthesia but suffered a
cardiac arrest on account of failure in anesthesia reversal, slipped into coma and
consequently died. In order to ascertain whether any negligence can be attributed to the
conduct of the Opposite Parties, we deem it essential to refer to the findings of the
Expert Medical Board constituted at Maulana Azad Medical College contained in the
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order dated 29.12.2010, the relevant extract reproduced hereunder as:
"1. The patient master Aditya 10 years old male was operated upon for
Adenotonsillectomy under general Anaesthsia on 18.1.2008 from 7.30 am to
9.00 am
2 . From the record it is evident that drugs administered for premedication viz
Inj. Fentanyl 25 mg iv +Inj. Fortwin 15mg iv + Inj Phenergan-12.5 mg iv
would have had synergistic effect, which could have resulted in the child not
recovering from Anaesthesia.
3 . In the present case the cardiac arrest might have occurred on account of
hypoxia, which could have precipitated due to the patient being left on
spontaneous respiration as is mentioned in the "Anasthesia notes" on page 12.
4. The management of Cardiac arrest was poor and obsolete viz Inj.adrenaline
is not given Intracardiac; instead it should have been given Intravenously. Also
Inj.Sodabicarbonate is not recommended, except in prolonged cardiac arrest.
5 . The chest X-ray done in MSSH immediately upon admission is reported as
"Perihilar Consolidation". This is suggestive of pulmonary congestion which
could be a sequelae of Cardiac arrest.
6. No record of subsequent course of events in M.S.S.H. has been provided."
19. A perusal of the aforesaid medical opinion does not leave a scintilla of doubt that
the patient was administered drugs for premedication viz Inj. Fentanyl 25 mg iv +Inj.
Fortwin 15mg iv + Inj Phenergan-12.5 mg iv which would have had synergistic effect
resulting in the patient not recovering from Anesthesia. A further perusal of the
aforesaid expert opinion suggests that the patient was left on spontaneous respiration
leading to hypoxia, which in turn led to a cardiac arrest.
2 0 . Here, it is pertinent to remark that every doctor who enters into the medical
profession has a duty to act with a reasonable degree of care and skill. This is what is
known as 'implied undertaking' by a member of the medical profession that he would
use a fair, reasonable and competent degree of skill. It is to be noted further that the
aforesaid medical opinion contains a specific and clear cut finding to the effect that the
line of treatment was prima facie erroneous, management of the cardiac arrest was poor
and obsolete wherein it is suggested "The management of Cardiac arrest was poor and
obsolete viz Inj.adrenaline is not given Intracardiac; instead it should have been given
Intravenously. Also Inj.Sodabicarbonate is not recommended, except in prolonged
cardiac arrest"
21. Here, it is pertinent to remark that the aforesaid discrepancies found in the line of
treatment, highly reek of an unprofessional and heedless attitude of the Opposite Parties
No. 1-3 towards the patient, thus rendering the present case absolutely fit to fall in the
domain of the doctrine of res ipsa loquitur. Here, the principle of res ipsa loquitur very
well comes into play, as prima facie, the conduct of the Opposite Parties tantamounts to
negligent conduct. A negative inference can be drawn against the Opposite Parties
solely on the basis of the doctrine of res ipsa loquitur which shall be applicable herein
keeping in view the clear cut findings of the Expert Medical Board and the treatment
record produced by the Complainants. For the application of the maxim res ipsa loquitur
no less important a requirement is that the res must not only bespeak negligence, but
pin it on the Opposite Party. The aforesaid findings independently make way for raising
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an adverse presumption against the Opposite Parties that prima facie an obsolete and
wrong line of treatment was offered to the patient at the first instance and management
of post-operative cardiac arrest was poor. It is to be noted further that record reflects
that the Opposite Parties could not manage the patient and the patient was consequently
transferred to Opposite Party No. 6-Max Super Specialty Hospital for better
management.
22. Therefore, it follows from the aforesaid discussion that the Opposite Parties failed
to provide a treatment specific to the condition of the patient and subsequently also
failed to provide a reasonable standard of post operative care to the patient. The
Opposite Parties also failed to take prompt action to transfer the patient and the patient
already slipped into coma by the time he was transferred to the Opposite Party no.6-
Hospital.
2 3 . A perusal of the record further divulges that no cardiologist was called for to
manage the condition of cardiac arrest suffered by the patient post surgery. It is
pertinent to remark here that had the Opposite Parties consulted a cardiologist and
acted promptly, a young life could have been saved. Furthermore, in our view, the
Opposite Parties ought to have referred the patient to some other doctor/hospital if they
were not able to manage the patient. Therefore, either way, the Opposite Parties cannot
shrug off their liability in so much so that the Opposite Parties were prima facie
negligent in their conduct in the course of treatment, causing the death of the patient.
24. The Opposite Parties No. 1 & 2 have further contended that the Opposite Party No.
1-hospital was equipped with life saving equipments for managing critically ill patients.
However, the Complainant requested Opposite Party No. 2 to consult his known
anesthesist Dr. Govil and upon insistence of Dr. Govil and the Complainant, the patient
was shifted to Opposite Party No.-6 Max Hospital for better management.
25. Here, it is implausible as to why the patient was shifted to the Opposite Party No.
6-hospital for further management if the Opposite Party No. 1-Hospital had all the
necessary equipment's for life support. In our view, a doctor owes a primary duty of
care towards the patient in deciding to choose the appropriate course of treatment and
ought not to be swayed by the opinion of the attendants of the patient. Even otherwise,
the Opposite Parties have not placed on record any document in the nature of
"Discharge on Request" (DOR/LAMA). As per the own admission of the Opposite Parties
in their written statement, the patient was transferred to the Opposite Party No. 6-Super
Specialty Hospital for better management of the condition of the patient. It is further
clear from the record that the patient was admitted to the Pediatric Intensive Care Unit
at Opposite Party No. 6-hospital. However, to the contrary, the medical record produced
by the Opposite Party No. 1 does not reflect whether the patient was being managed in
a specialized Paediatric ICU in the Opposite Party No. 1-Hospital with adequate life
support systems. Furthermore, a perusal of the record makes it clear that no
Cardiologist was called for to manage the patient in the event of cardiac arrest and the
patient was left on spontaneous breathing and had already slipped into Glasgow Coma
Score 3.
26. Another plea has been raised by the Opposite Party No. 3 that the Expert Medical
Board has misconstrued the medical record and that the conclusion of occurrence of
cardiac arrest on account of hypoxia and over doze of drugs combination used for
Anesthesia is erroneous.
27. Here, it is to be noted that a perusal of the Anesthesia record (annexed as Annexure

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C alongwith the written statement of Opposite Party No. 3) makes a clear mention that
the patient was administered "25 micro mg iv +Inj. Fortwin 15mg iv + Inj Phenergan-
12.5 mg iv", reproduced hereinbelow for ready reference:

2 8 . It is to be noted that on an extensive perusal of units in metric system of

measurement for drug calculations as specified by the US Food & Drug Administration
(accessible athttps://www.fda.gov/industry/structured-product-labeling
resources/units-measure,) & Mayo Clinic Laboratories (accessible
athttps://www.mayocliniclabs.com/testcatalog/appendix/measure met), it has come to
our knowledge that there exists no unit or symbol as micro mg. Furthermore, even if it
is assumed that the dosage administered was in micrograms i.e. mcg and the quantity is
read as mcg in place of mg, the same shall be insufficient dose as indicated in the
dosage chart given by Food & Drug Authority, USA (accessible at
https://www.accessdata.fda.gov/drugsatfda_docs/label/2013/0166 19s034lbl.pdf)
reproduced herein below for ready reference:

2 9 . Therefore, it can be concluded beyond doubt that the "Inj. Fentanyl 25mg iv"
administered as 25 mcg would be a very small dose for anesthetic purpose to carry out
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the operation as the moderate dose as per the aforesaid chart as recommended by FDA
for anesthesia for a child weighing around 30Kg shall be 30 x 0.02mg = 0.6mg or
600mcg. i.e. @0.02mg/Kg.
30. Thus, we do not find any merit in the contention of the Opposite Party no.3 that the
dosage has been misread by the Expert Committee. Alternatively, we do not find any
infirmity in the report of Expert Committee from Department of Anesthesiology &
Intensive Care, Maulana Azad Medical College (MAMC).
3 1 . The Opposite Party No. 3 has also placed on record an opinion of the "Indian
College of Anesthesiologists" (ICA) to contradict the findings of the Expert Medical
Board at Maulana Azad Medical College, issued by a body of anesthesiologists of which
the Opposite Party no.3 is a member.
32. Here, it is to be noted that a perusal of the aforesaid report by ICA nowhere makes
a mention of the symptoms of overdose of the drug Fentanyl which was administered to
the patient. It is pertinent to mention here that the aforesaid opinion by ICA is not in
consonance with treatment record of the patient as placed on record. It is clear from the
record that the patient was neither administered any antagonist nor any cardiologist was
called for to manage the condition of cardiac arrest of the patient. It is further evident
from the face of record that the patient suffered the following symptoms i.e. cardiac
arrest, pupils were fixed and dilated (mydriasis), no dolls eye movement etc. From the
extensive reading of the medical literature on the subject, it has come to our knowledge
that following are the symptoms of Fentanyl overdose (accessible at
https://www.accessdata.fda.gov/drugsatfda_docs/label/2019/01911 5s033lbl.pdf) :
"As with other opioid agonists, the most common serious adverse reactions
reported to occur with fentanyl are respiratory depression, apnea, rigidity, and
bradycardia; if these remain untreated, respiratory arrest, circulatory
depression or cardiac arrest could occur.
......Fentanyl causes miosis, even in total darkness. Pinpoint pupils are a sign of
opioid overdose but are not pathognomonic (e.g., pontine lesions of
hemorrhagic or ischemic origins may produce similar findings). Marked
mydriasis rather than miosis may be seen due to hypoxia in overdose
situations.
33. A perusal of the aforesaid overdose indications and the symptoms suffered by the
patient reveal a stark similarity as regards to the indications of overdose. Therefore, in
light of the aforesaid discussion, we opine that the medical opinion as submitted by the
ICA is a merely a brazen attempt to shield a fellow member of the medical fraternity in
so much so the aforesaid medical opinion is contrary to the medical record produced
and in total disregard of the treatment administered to the patient.
34. Again, we deem it pertinent to make note of the submissions of the Opposite Party
No. 3 in para 16 of the written statement, reproduced hereinbelow as :
" That it is submitted that the patient had a successful cardiovascular
resuscitation (recover from cardiac arrest) but it was found that respiratory
effort though recovered was inadequate so manual ventilation was continued. It
is submitted that as normal response of drugs used for resuscitation, the pupils
of the patient were found to be dilated and non reacting. However, all the
parameters on the monitor were constantly found to be normal."

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35. Here, it is to be noted that though the Opposite Party no.3 has contended in para
16 of the written statement that the patient had a successful cardio-vascular
resuscitation (recovery from cardiac arrest), it is implausible as to why the patient was
administered Sodium Bicarbonate through intra venous infusion when the same is not
recommended as per standard medical protocol. Even otherwise, the line of treatment
offered by the Opposite Parties No. 1-3 doctors was wrong and obsolete and the post
operative care was especially poor. This view is further fortified by the specific
observation as recorded by the Expert Committee, the relevant extract reproduced
hereinbelow as:
"...The chest X-ray done in MSSH immediately upon admission is reported as
"Perihilar Consolidation". This is suggestive of pulmonary congestion which
could be a sequelae of Cardiac arrest."
36. It is apparent from the face of the record that the patient had frothy pink secretion
in the ET tube and had Perihilar Condition which is suggestive of chest congestion.
However, the Opposite Parties have failed to produce any material on record to show
that appropriate measures were taken to decongest the chest of the patient. Therefore,
in the light of the aforesaid discussion, we opine that the Opposite Party No. 3 was
negligent in its conduct.
37. The final issue that falls for our consideration is whether any negligence can be
attributed to the conduct of the Opposite Parties no.4-6.
38. At this juncture, it is to be noted that no specific allegation has been raised against
the Opposite Parties No. 4-6 as regards to negligence in the line of treatment. It is
pertinent to remark here that sufficient material should be placed before an adjudicating
body in order to arrive at the conclusion that death of the patient was due to medical
negligence.
39. However, the Complainants have submitted that deliberate delays were made on
part of the Opposite Parties No. 4-6 in providing treatment to the patient.
40. In this regard, we deem it appropriate to refer to the document titled 'Face Sheet'
(annexed at pg 289 of the medical record) and the Discharge Slip (annexed at pg 291 of
the medical record), reproduced hereinbelow for ready reference:

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41. We further deem it appropriate to refer to the written statement of the Opposite
Party No. 5 & 6, relevant extract reproduced hereinbelow for ready reference:
"3.....The Complainants were informed of this prognosis and based on the same
the patient was transferred from the Opposite Party no.1 and admitted to the
Paediatric Care Unit at 1:50 p.m."
4 2 . A perusal of the aforesaid documents and written statement reveals that the
Opposite Parties have assumed a mutually contradictory stance in so much so that the
record reflects the time of admission as 3:17 pm whereas the Opposite Parties have
stated that the patient was admitted at 1:50 pm in the Opposite Party No. 6-hospital.
The Opposite Parties have further failed to produce any cogent material indicating the
treatment, if any, given to the patient during the intervening period between 1:20 p.m-
3:30 p.m. i.e. around 1 hour 30 mins. We further deem it appropriate to refer to the
order dated 16.12.2015 passed by this Commission, relevant extract reproduced
hereunder as:
".....OP-6 does not have its possession any further documents to be filed by
him. In the circumstances, no further documents are called for in the matter
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 and the right of the OP-6 to file further documents is closed. "
4 3 . It is to be noted further that vide order dated 16.12.2015 passed by this
Commission, it was duly observed that the Opposite Party No. 6 failed to produce the
treatment record pertaining to the said period of around 1 hour 30 mins and accordingly
the right of the Opposite Party to file further documents stood closed vide order dated
16.12.2015. Therefore, it can be concluded that the Opposite Parties No. 4-6 failed to
maintain proper records which gives rise to adverse presumption as to whether any
treatment was even provided to the patient by the Opposite Parties No. 4-6 during the
said period of 1 hour 30 minutes. Here, it is to be noted that the patient was already in
a critical condition and time was the essence in the present case, where even a minute
lost could have had a lethal ramification to the patient's life. In our view, it is
implausible as to why critical time was wasted in attending the patient and what
treatment was given to the patient during the said period of approximately one and half
hours. Therefore, in the absence of any cogent proof to the contrary as to whether the
patient was attended promptly and no critical time was lost, we hold the Opposite
Parties No. 4-6 liable for professional misconduct for not adhering to standard practice
of record keeping.
44. In view of the aforesaid discussion, we hold that the Opposite Parties No. 1-3 being
a healthcare unit and doctors working conjointly, were negligent and deficient in
providing their services pertaining to post-operative care of the patient. We further hold
the Opposite Parties No. 4-6 as deficient in record keeping and in providing their
services timely to the patient, and therefore, the Consumer Complaint No. 288/2009
stands allowed. Consequently, we direct;
a) the Opposite Parties No. 1, 2 & 3 to pay a sum of Rs. 20,00,000/- to the
Complainant as compensation towards death of the patient
b) the Opposite Parties No. 1-6 to pay a sum of Rs. 50,000/- each to the
Complainant as mental agony and physical agony caused to the Complainants
c) the Opposite Parties No. 1-6 to jointly pay a sum of Rs. 1,00,000/- to the
Complainant as litigation charges.
45. The Opposite Parties are directed to comply with the directions as contained in para
44, within two months from the date of the present judgment i.e. on or before
02.11.2024, failing which the Opposite Parties shall be liable to pay the entire sum
along with simple interest at the rate 9% p.a. till the actual realization of the amount.
46. Applications pending, if any, stands disposed of in terms of the aforesaid judgment.
4 7 . The judgment be uploaded forthwith on the website of the commission for the
perusal of the parties.
48. File be consigned to record room along with a copy of this Judgment.
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