1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal No. 6619 Of 2016
MAHARAJA AGRASEN
HOSPITAL & ORS. …APPELLANTS
Versus
MASTER RISHABH SHARMA & ORS. …RESPONDENTS
WITH
Civil Appeal No. 9461 Of 2019
(Arising out of Diary No. 15393 of 2019)
POOJA SHARMA & ORS. …APPELLANTS
Versus
MAHARAJA AGRASEN
HOSPITAL & ORS. …RESPONDENTS
J U D G M E N T
INDU MALHOTRA, J.
1. The present Civil Appeals arise out of a complaint of medical
negligence made by Respondent Nos. 1 to 3 – the
Complainants against the Appellant No.1 – Hospital and
Appellant Nos. 2 to 4 – the Paediatricians and
Ophthalmologist Doctors working with the Appellant No.1-
Hospital, and Respondent No.4- the Gynaecologist, before
2
the National Consumer Disputes Redressal Commission
(hereinafter referred to as the “National Commission”).
2. The National Commission vide Judgment and Order dated
10.05.2016 (“impugned Judgment”) allowed the consumer
complaint, and held the Appellant No.1 – Hospital, and
Appellant Nos. 2 to 4 – Doctors guilty of medical negligence,
since they failed to carry out the mandatory check up of
Retinopathy of Prematurity (“ROP”) on Respondent No.1-
Master Rishabh, who was a pre-term baby, which led to his
total blindness. In so far as Respondent No.4- Dr. Rama
Sharma, the Gynaecologist is concerned, who had delivered
the baby, she was exonerated by the National Commission,
and has not been pressed before this Court.
3. Aggrieved by the impugned Judgment passed by the
National Commission, the Appellant No.1- Maharaja
Agrasen Hospital, a super speciality hospital, Appellant No.2
-Dr. G.S. Kochhar and Appellant No.3- Dr. Naveen Jain, the
Consultant Paediatricians working for the Appellant No.1 –
Hospital, and Appellant No.4-Dr. S.N. Jha, the Senior
Consultant Ophthalmologist working for the Appellant No.1-
Hospital have filed Civil Appeal No. 6619 of 2016.
3
4. Respondent No.1-Master Rishab Sharma, is the childpatient, who was Complainant No.1 before the National
Commission, and was represented by his widowed mother
Pooja Sharma – Respondent No.2/the Complainant No.2.
Respondent No.3 is the elder brother of Respondent No.1.
The Complainants have filed Civil Appeal No. 9461 of
2019 (Diary No. 15393 of 2019) before this Court for further
enhancement of the compensation awarded by the National
Commission.
5. The background facts in which the present Civil Appeals
have been filed are as under:-
5.1 Respondent No.2-Pooja Sharma – the Complainant
No.2 was under the ante-natal care of Respondent
No.4-Dr. Rama Sharma at Sharma Medical Centre
since September 2005.
5.2 On 02.04.2005, at about 5.30 p.m., the Respondent
No.2 had to undergo a caesarean section in view of the
condition of Placenta Previa. The baby-Respondent
No.1 was born pre-term at 32 weeks’ gestation, with a
weight of 1.49 kg at the time of birth.
4
5.3 On the same day, at about 8:30 p.m., Respondent
No.4- Dr. Rama Sharma, the Gynaecologist referred
the case for intensive care to Maharaja Agrasen
Hospital- Appellant No.1.
At the time of admission, the general condition of
the baby was poor, and was diagnosed as “32 weeks
pre-term AGA with HMD”. The baby was treated in the
Neo-natal ICU of the Paediatrics Unit and was put on
ventilatory support, and Surfactant injections were
administered gradually.
5.4 The Respondent No.1-baby stayed in the Appellant
No.1-Hospital for almost 4 weeks, and was discharged
on 29.04.2005, which was 27 days after birth.
The Discharge Slip issued by the Appellant No.1-
Hospital to the Complainants reads as follows:
“ Maharaja Agrasen Hospital
Punjabi Bagh, New Delhi-110026, Ph. 25106645 to 54
DISCHARGE SLIP
Hospital No. 505404. Ward: NICU Deptt./Unit: Paed-III.
Name: B/O. Pooja Sharma Age/Sex NB/M.
Date of Admission: 02.04.2005 at 8.30 p.m.
Date of Discharge: 29.04.2005
Diagnosis: PT (32) with HMD with Neonatal Hyperbil with B/L
Pneumothorax Fungal Septicemia.
Condition at time of discharge: Satisfactory.
Consultants: Dr. G.S.Kochar /Dr. N. Jain
5
DOB: 02.04.2005.
Sex: Male.
Birth weight: 1.49 kg.
Weight at discharge: 1.56 kg.
Mode: Emergency LSCS for placenta previa.
FOLLOW UP ADVICE:
• Syp. Taxim O 1 ml BD x 5 d.
• Syp. Osteocalcium TDS.
• Drops Visyneral Z 0.3 ml OD.
• Drop Vitcofol 5 drops OD.
• Drop Evion 5 drops OD
• To review in Pead. OPD on Wed / Sat 4 p.m.
• Refer back to Rama Nursing Home (Sharma Medical
Centre)
_______________ ______-sd-____________
Consultant Medical Officer ”
5.5 There is no advice to the Complainants to have the
ROP test carried out on the baby, who was born
prematurely, in the Discharge Slip. Post discharge, the
Respondent No.2-Complainant brought the baby for a
follow up check-up on 04.05.2005 to the Paediatrics
Unit of the General OPD of the Appellant No.1-
Hospital, when the baby was 4 weeks and 4 days old.
The baby was examined by the Consultant
Paediatricians - Dr. G.S. Kochhar and Dr. Naveen
Jain/ Appellants No. 2 and 3.
As per the medical records, the Respondent No.1-
baby was found to be stable, and Respondent No.2-
6
Complainant was advised to continue breast feeding
along with supplements.
It is pertinent to note that there was no advice or
recommendation for ROP check-up on this date in the
Medical Records produced by the Appellant No.1 –
Hospital.
5.6 On 13.07.2005, the Respondent No.2-Complainant
brought the baby for a 2nd follow-up visit when he was
over 3 months old to the Paediatrics Unit of the
General OPD of the Appellant No.1-Hospital. The
Respondent No.1-baby was examined by Dr. Manoj on
behalf of Dr. G.S. Kochhar. Dr. Manoj advised the
Complainants for the BERA scan/test to be conducted.
It is pertinent to note that there was no advice for
ROP check-up given even on this visit.
5.7 Respondent No.2-Complainant submits that sometime
in November 2005, she noticed abnormal visual
responses in the Respondent No.1 – baby. The
Complainant asked for the medical records of the baby
to have his follow up treatment done.
7
The medical records were, however, not made
available by Appellant No.1-Hospital.
5.8 On 23.11.2005, Respondent No.2 – Complainant took
the baby to Nayantara Eye Clinic, Delhi where an
ultrasound (B. Scan) was conducted. It was advised
that eye-ointment and eye-drops be administered to
the baby.
5.9 On 03.12.2005, the baby was taken by Respondent
No.2- Complainant to Shroff Charity Eye Hospital,
Delhi for further examination where the ultrasound (B.
Scan) was conducted. The Shroff Charity Eye Hospital
diagnosed that the baby had ROP Stage 5 in both eyes,
which is a case of total retinal detachment.
5.10 Respondent No.2-Complainant approached
Respondent No.4- Dr Rama Sharma, the Gynaecologist
of Sharma Medical Centre to explain how the medical
condition of Respondent No.1-baby had remained undiagnosed. Dr. Rama Sharma shifted the blame to the
Appellants.
5.11 On 07.12.2005, Respondent No.2-Complainant took
the baby to the Appellant No.1-Hospital in the Private
8
OPD Consultation. Dr. Sanjay Bhavan,
Ophthalmologist examined Respondent No.1-baby. The
case was referred to Dr. Lingam Gopal of Shankara
Netralaya at Chennai for an urgent appointment.
5.12 On 07.01.2006, the Respondent No.1-baby was taken
by his mother- Respondent No.2-Complainant to Dr.
Rajendra Prasad Centre for Ophthalmic Sciences at
AIIMS, New Delhi for OPD Consultation. After
examination, it was confirmed that it was a case of
ROP Stage 5.
5.13 On 24.02.2007, the Respondent No.2-Complainant
was constrained to issue a legal notice to the Appellant
No.1-Hospital to provide the entire in-patient medical
records of the baby in compliance with Regulation
1.3.2 of the Indian Medical Council (Professional
Conduct, Etiquettes and Ethics) Regulations, 2002
(“IMC Regulations”).
5.14 The Appellant Nos. 1 to 3 failed to provide the inpatient medical records to the Complainant despite the
issuance of legal notice.
9
5.15 The Respondent No.2-Complainant then filed a
complaint with the Delhi Medical Council for a
direction to the Appellant No.1-Hospital to provide the
complete in-patient medical records pertaining to the
baby.
5.16 Eventually, the Appellant No.1-Hospital provided a
copy of the medical records of the baby alongwith the
Case Summary on 14.06.2007 after more than 2 years
of discharge from the Appellant No.1-Hospital.
5.17 The Respondent No.2-Complainant contends that
when she received these records, she was shocked to
find that the medical records mentioned an alleged
ROP check-up was conducted on 26.04.2005 by
Appellant No.4-Dr. S.N. Jha. The Respondent No.2-
Complainant contends that no ROP examination was
conducted by Appellant No.4-Dr. S.N. Jha.
5.18 On 04.08.2007, the Respondent No.2-Complainant
addressed a letter to the Medical Superintendent of
Appellant No.1- Hospital. The relevant extract of the
said letter is reproduced hereinbelow for ready
reference:
10
“Under the above enclosure we have received photocopies of some
Medical Record (uncertified) along with a case summary dated 13-
06-2007.
The said summary states that on 26-04-2007 ROP examination on
our baby was conducted in the Ophthalmological unit of your
hospital and review examination after two weeks was also advised.
We are rather intrigued by this observation as it does not find
mention anywhere in the Discharge Summary nor is there any follow
up advise.
Since both of us do not recollect any such examination conducted in
our presence or review advise and the said medical record is also
totally silent about it, kindly provide us with the entire record of the
Ophthalmological unit, name of the Paediatric Ophthalmologist who
had conducted the ROP examination and his written report dated
26-04-2006.”
[emphasis supplied]
5.19 Appellant No.1- Hospital replied to the letter on
24.08.2007, wherein it was stated that:
“As per standard neonatal protocol, ophthalmological check-up was
requested on 25-04-2005 to rule out ROP.
The ophthalmological examination was done in the Nursery on 26-
04-2005 morning by Dr. S. N. Jha, Senior Consultant
Ophthalmologist. The written report of the Ophthalmological unit is
stated on page no.102 of the case record.”
[emphasis supplied]
5.20 On 19.11.2007, Respondent Nos. 1 to 3 filed a
Consumer Complaint under Section 21 (a)(i) of the
Consumer Protection Act, 1986 before the National
Commission [Consumer Case No. 119 Of 2007]
claiming compensation of Rs. 1,30,25,000/- alleging
medical negligence and deficiency in service on the
11
part of Appellant Nos. 1 to 4, and Respondent No.4-
the Gynaecologist, for compensation for the permanent
physical disability, mental agony, and social stigma,
deprivation of normal human life, companionship,
torture and harassment etc.
5.21 The Delhi Medical Council vide order dated 14.12.2007
issued a warning to the Appellant No.1-Hospital for the
delay in supplying the medical records of the
Respondent No.1-baby to the Complainant.
5.22 The National Commission vide Order dated 29.02.2012
directed the Medical Board, AIIMS to give an expert
opinion in the matter.
5.23 The Medical Board of AIIMS submitted its Report dated
11.05.2012 to the National Commission. The Report
states that as per standard guidelines (National
Neonatology Forum), new born babies who are born at
32 weeks’ gestation or less, should have their eyes
examined at 3-4 weeks of age and more frequent
check-ups to be done thereafter. Appellant No.4- Dr.
S.N. Jha examined the baby at 24 days of age in
accordance with established protocol. If ROP screening
12
does not reveal any ROP, then repeat examination
should be performed after 2 weeks. The Report goes on
to say that after discharge, the baby was brought twice
to the General OPD of the Appellant No.1- Hospital.
There is no record to show that the baby was brought
after 2 weeks of discharge to the Paediatrics OPD clinic
when subsequent progression could been assessed and
treated on time.
6. The National Commission vide its Judgment and Order
dated 10.05.2016 (bench comprising of Presiding
Member J.M. Malik J. and Dr. S.M. Kantikar, a
qualified doctor) held as under:
6.1 The National Commission was not convinced that
the ROP screening was done by O.P. No.5/Appellant
No.4 on Respondent No.1-baby. The progress sheet
was devoid of any details about the ROP
examination, the method and instruments used,
drugs (midrates/tropicamide)/ anaesthesia used
during ROP testing. The Ophthalmologist has not
mentioned any details of the dilation of the pupils,
and the findings by indirect ophthalmoscope, and
13
the intra-ocular or extra retinal findings. The
standard ROP screening protocol was not followed.
The Nurses’ Daily Records from 25.04.2005 to
27.04.2005 does not show that any ROP
examination was done by O.P. No. 5/Appellant No.
4.
6.2 The AIIMS Report did not comment about the details
of the ROP screening and the follow-up findings.
6.3 The National Commission held that the sequence of
events leading to ROP usually takes about 4 to 5
weeks, except in a small sub-set of premature
infants who develop rush disease in 2 to 3 weeks.
The routine screenings should begin at no later than
4 weeks after birth, and possibly even earlier for
infants at higher risk (2 to 3 weeks). It is strongly
recommended that one session of retinal screening
be carried before Day 30 of the life of any premature
baby. The examination should be done with the
dilation of the pupil with Tropicamide 0.5% to 1%
with Phenylapinephrine 2.5%.
14
6.4 The National Commission came to the conclusion
that O.P. No.5/Appellant No.4 did not conduct the
ROP screening on the baby. ROP screening is a
team-work of the Paediatrician, Opthalmologist and
the NICU nurse. There is no medical documentation
of the ROP screening procedural details. The O.P.
No. 5 should have performed the retinal
examination with binocular indirect opthalmoscope
on dilation of the pupil with scleral depression to
ascertain avascular zone at the periphery of the
retina. The National Commission found that nothing
was forthcoming from Page 102 of the medical
records. It appears to be a bare visual examination
done by O.P. No. 5 in haste to cover up the case.
The National Commission was of the
considered view that neither the ROP screening was
performed, nor was any advice for follow up of ROP
given to the Respondent No.2-Complainant/mother.
6.5 The National Commission held that the Respondent
No.1-Master Rishabh had been rendered blind for
life, which could never really be compensated in
15
monetary terms. The baby had lost his father during
the pendency of proceedings in 2013. The
Respondent No.2-Complainant had been pursuing
the consumer complaint single-handedly for almost
a decade.
6.6 The National Commission awarded an amount of Rs.
53,00,000/- to the Respondent No.1-baby by
applying the average inflationary principle at a
conservative rate of 1% p.a., keeping in mind the
fluctuations over the next 59 years. The National
Commission awarded an amount of Rs. 10,00,000/-
to the Respondent No.2-Complainant/mother who
would have to take care of the blind child
throughout her life. A further amount of Rs.
1,00,000/- was awarded towards costs of litigation.
The National Commission held O.P. Nos. 2 to 5/
Appellant Nos. 1 to 4 to be jointly and severally
liable to pay the total amount of Rs. 64,00,000/-
within 2 months of the Order. The entire amount
would carry interest at the rate of 9% p.a.
16
Out of the total compensation awarded, Rs.
50,00,000/- would be kept in a Fixed Deposit with a
nationalised bank till Respondent No.1 attained the
age of majority. The periodic interest on the deposit
would be paid to the Respondent No.2-
Complainant/ mother till the child attained the age
of majority. The remaining amount of Rs.
14,00,000/- would be released to the Respondent
No.2-Complainant.
7. Aggrieved by the impugned Judgment passed by the
National Commission, C.A. No. 6619 of 2016 was filed by
the Hospital and the Doctors before this Court. The
Complainants have filed Civil Appeal No. 9461 of 2019
(Diary No. 15393 of 2019) before this Court for
enhancement of compensation.
This Court vide interim Order dated 29.07.2016
ordered stay of the operation of the impugned Judgment,
subject to the Appellant No.1-Hospital depositing 50% of the
amount awarded by the National Commission in this Court
within 6 weeks.
17
On 07.09.2016, the Appellant No.1-Hospital deposited
an amount of Rs. 32,00,000/- in this Court. This Court vide
Order dated 7.11.2016, directed the amount to be kept in a
Fixed Deposit with UCO Bank, which was renewed from
time to time. The fixed deposit is due to mature on
17.02.2020.
8. We have heard the learned Counsel for all the parties and
perused the original Medical Records, pleadings and written
submissions filed by the parties.
9. The learned counsel for the Appellants viz. the Hospital and
Doctors inter alia submitted that:
9.1 Respondent No.1-baby was pre-term (32 weeks) with
signs of HMD, and was admitted in Appellant No.1-
Hospital on 02.04.2005 in a critical condition with
little chance of survival. The baby was admitted in the
neo-natal ICU, and had to be immediately placed on
ventilatory support for 10 days. As per standard
protocol, regular investigations and Arterial Blood Gas
(ABG) analysis were performed. Blood component
therapy was given. The critical condition of the baby
and possible neuro-development, visual and hearing
18
sequel was informed to the parents. The baby was
given utmost care and attention by the Doctors of the
Appellant No.1-Hospital.
9.2 As per protocol, ophthalmological examination was
advised on 25.04.2005 to rule out ROP, as recorded at
Page 100 of the medical records. Appellant No.4-Dr.
S.N. Jha, the Senior Ophthalmologist conducted the
ROP test on 26.04.2005, who found no ROP in
Respondent No.1-baby, as recorded by Appellant No.4
in his handwriting at page 102 of the medical records.
It was submitted that the Appellant No.4 had advised a
further review/check-up after 2 weeks in the speciality
OPD on Wednesay/Saturday between 4 p.m. to 6 p.m.
The parents of Respondent No.1-baby were explained
all the problems which may develop in a premature
baby.
9.3 As per the Discharge Summary at Page 109 of the
medical records, the Complainants were advised to
bring the Respondent No.1-baby for a ROP and BERA
check-up to the speciality OPD on
Wednesday/Saturday at 4 pm.
19
9.4 The Respondent No.2-Complainant brought the baby
to the General OPD of Appellant No.1- Hospital on
04.05.2005 after 8 days of the first ROP check-up, and
not after 2 weeks as advised. Thereafter, the baby was
brought on 13.07.2005, which was after 2 months
again to the General OPD.
9.5 The Appellants relied on the Report of the Medical
Board constituted by AIIMS, which had vide their
Report dated 11.05.2012 held that the baby was not
brought to the Paediatrics OPD Clinic on Wednesdays
or Saturdays at 4 P.M. after two weeks of discharge,
when subsequent progression of ROP could have been
assessed and treated on time.
9.6 The Appellant No.4/O.P. No.5 - Dr. S.N. Jha, a Senior
Ophthalmologist was engaged with the Appellant No.1-
Hospital from 1997 to 2010. It was submitted on his
behalf that on 25.04.2005, the Paediatrics Dept. of the
Appellant No.1-Hospital had requisitioned him to
perform the ROP examination. The Appellant No.4
submits that the ROP was duly conducted by him on
26.04.2005. His finding is recorded at Page 102 of the
20
medical records, wherein he has recorded that he did
not find any evidence of ROP at that stage. It was
further submitted that it was not required to record
the method of dilation of the pupil and use of indirect
ophthalmoscope. The standard medical literature
establishes that ROP manifests itself after 4 weeks of
post-natal age. In view thereof, the finding of Appellant
No.4, who examined the baby only on 26.04.2005 i.e.
when the baby was 24 days old, there was no evidence
of ROP, cannot be faulted.
9.7 It was further submitted that the only requirement for
conducting an ROP examination is a chemical solution
of Tropicamide and Phenylephrine to dilate the eyes,
which was available in the nursery, and an indirect
ophthalmoscope, which is available with all
ophthalmologists. who have specialised in the care of
retina, and are competent to carry ROP examination. It
was submitted that the Appellant No.4 was not
required to record the procedure for conducting the
ROP examination, which is merely the retinal
21
examination of the baby by use of an indirect
ophthalmoscope after dilation of the pupils.
9.8 Appellant No.4 - Dr. S.N. Jha was not consulted on the
two subsequent visits by the Respondent No.2-
Complainant with the baby on 04.05.2005 and
13.07.2005 in the Ophthalmology department, even
though he would have been available in the speciality
OPD on Wednesdays/Saturdays at 4 P.M.
10. The learned counsel for the Complainants –
Respondent Nos. 1 to 3 (Appellant Nos. 1 to 3 in Civil Appeal
No. 9461 of 2019/Diary No. 15393 of 2019), inter alia
submitted that the Respondent No.1-baby has become
permanently blind on account of the gross medical
negligence by the Hospital, and the three specialist doctors
i.e two consultant Paediatricians, and the Ophthalmologist,
for the following reasons:
10.1 The Appellant Nos.1 to 4 did not at any stage conduct
the ROP examination of the baby, who was a
premature baby, nor was the family ever informed
about the high risk of ROP in a premature baby, and
the necessity for regular check-ups.
22
10.2 The Appellant No.1-Hospital had deliberately withheld
the medical records for over two years after discharge.
At the time of discharge on 29.04.2005, the
Complainants were provided with a Discharge Slip,
which did not disclose any instructions advising that
the infant be brought for ROP examination (the
Discharge Slip in Para 5.4 above).
In this Discharge Slip, there is no advice of ROP
having been conducted, or follow-up of ROP, nor was
the risk of ROP explained by the Appellant Nos. 2 and
3 to the Respondent No.2-Complainant.
10.3 The Complainants have strongly contended that parts
of the medical records, which were provided after 2
years in 2007, had been fabricated and interpolated as
an afterthought to escape liability.
It was submitted that a bare perusal of the noting
dated 26.04.2005 made in the medical record by
Appellant No.4- the Ophthalmologist, shows that is
merely a scribble, and is illegible. The Complainants
have strongly refuted the case of the Appellants that
23
the ROP was conducted by Appellant No.4 on
26.04.2005.
The Complainants have supported their
submission on the basis of :(i) the progress sheets,
which contain no details of the ROP examination; (ii)
there is no mention of the ROP examination in the
Nurses’ Daily Record; (iii) ROP exam is conducted with
the help of dilation by using Cyclopentolate (0.5%) and
Phenylephrine (2.5%) drops to be applied 2 to 3 times,
about 10-15 minutes apart. There is no record with
respect to the administration of the these medicines to
the baby; (iv) there is no mention of the ROP test in the
Discharge Slip of 29.04.2005;
10.4 The Complainants contended that if the standard
protocol had been carried out by the Doctors, the ROP
would have been detected at an early stage, and could
have been cured, since it is medically known to be
reversible at the early stages.
On account of the negligence of the Appellant
Nos. 1 to 4, the ROP was discovered only at Stage 5, by
the Shroff Charity Eye Hospital, when the baby was 8
24
months old. By this time, the ROP became irreversible,
and resulted in total blindness of the Respondent No.1-
baby.
10.5 It was further urged that the quantum of compensation
awarded by the National Commission was grossly
inadequate and insufficient. The National Commission
failed to take into account variables such as the
additional educational expenses in special schools,
transportation costs, costs of purchasing, maintaining
and upgrading Visual Aid/Assistive Devices, costs of
permanent nursing/attendant care and miscellaneous
medical expenses. It was further contended that the
average rate of inflation taken by the National
Commission i.e. a conservative rate of 1 % per annum
for the next 59 years, was grossly undervalued. The
Complainants sought enhancement of the
compensation to the extent of Rs. 9,87,84,000/-.
11. Discussion and Analysis
11.1 Inordinate Delay in Supply of Medical Records
We find that there was an inordinate delay of over 2
years in making the Medical Records of Respondent No.1-
25
Master Rishabh available to the Respondent No.2-
Complainant. Regulation 1.3.2 of the IMC Regulations
casts a statutory obligation upon every doctor/hospital to
provide medical records within 72 hours of the request
being made by the patient.
11.1.1 The Medical Council of India has framed the IMC
Regulations with the previous approval of the Central
Government, in exercise of the powers conferred by
Section 20A read with Section 33(m) of the Indian
Medical Council Act, 1956. The IMC Regulations came
into force on their publication in the Gazette of India on
06.04.2002, and have statutory force.
11.1.2 Regulation 1.3.2 of the Indian Medical Council
(Professional Conduct, Etiquettes and Ethics)
Regulations, 2002 provides as under:
“1.3 Maintenance of medical records:
1.3.1 Every physician shall maintain the medical records
pertaining to his /her indoor patients for a period of 3 years
from the date of commencement of the treatment in a
standard proforma laid down by the Medical Council of
India and attached as Appendix 3.
1.3.2. If any request is made for medical records either by
the patients / authorised attendant or legal authorities
involved, the same may be duly acknowledged and
documents shall be issued within the period of 72 hours.
26
1.3.3 A Registered medical practitioner shall maintain a
Register of Medical Certificates giving full details of
certificates issued. When issuing a medical certificate he /
she shall always enter the identification marks of the
patient and keep a copy of the certificate. He / She shall not
omit to record the signature and/or thumb mark, address
and at least one identification mark of the patient on the
medical certificates or report. The medical certificate shall
be prepared as in Appendix 2.
1.3.4 Efforts shall be made to computerize medical records
for quick retrieval.
[emphasis supplied]
As per Regulation 7, if the doctor refuses or fails to
provide the medical records within 72 hours when the
patient or his/her authorised representative makes a
request as per the Regulation 1.3.2, the said act of
commission or omission would constitute professional
misconduct rendering him/her liable for disciplinary action
and punishment under Regulation 8.
Regulations 7 and 8 provide as follows:
“7. MISCONDUCT
The following acts of commission or omission on the part of a
physician shall constitute professional misconduct rendering
him/her liable for disciplinary action
7.1 Violation of the Regulations: If he/she commits any
violation of these Regulations.
7.2 If he/she does not maintain the medical records of
his/her indoor patients for a period of three years as per
regulation 1.3 and refuses to provide the same within 72
hours when the patient or his/her authorised representative
makes a request for it as per the regulation 1.3.2.
27
8. PUNISHMENT AND DISCIPLINARY ACTION
8.1 It must be clearly understood that the instances of
offences and of Professional misconduct which are given
above do not constitute and are not intended to constitute a
complete list of the infamous acts which calls for disciplinary
action, and that by issuing this notice the Medical Council of
India and or State Medical Councils are in no way precluded
from considering and dealing with any other form of
professional misconduct on the part of a registered
practitioner. Circumstances may and do arise from time to
time in relation to which there may occur questions of
professional misconduct which do not come within any of
these categories. Every care should be taken that the code is
not violated in letter or spirit. In such instances as in all
others, the Medical Council of India and/or State Medical
Councils have to consider and decide upon the facts brought
before the Medical Council of India and/or State Medical
Councils.
8.2 It is made clear that any complaint with regard to
professional misconduct can be brought before the
appropriate Medical Council for Disciplinary action. Upon
receipt of any complaint of professional misconduct, the
appropriate Medical Council would hold an enquiry and give
opportunity to the registered medical practitioner to be heard
in person or by pleader. If the medical practitioner is found to
be guilty of committing professional misconduct, the
appropriate Medical Council may award such punishment as
deemed necessary or may direct the removal altogether or for
a specified period, from the register of the name of the
delinquent registered practitioner. Deletion from the Register
shall be widely publicized in local press as well as in the
publications of different Medical Associations/
Societies/Bodies.
8.3 In case the punishment of removal from the register is for
a limited period, the appropriate Council may also direct that
the name so removed shall be restored in the register after
the expiry of the period for which the name was ordered to be
removed.
8.4 Decision on complaint against delinquent physician shall
be taken within a time limit of 6 months.
8.5 During the pendency of the complaint the appropriate
Council may restrain the physician from performing the
procedure or practice which is under scrutiny.
28
8.6 Professional incompetence shall be judged by peer group
as per guidelines prescribed by Medical Council of India.”
11.1.3 The IMC Regulations framed by the Medical Council of
India are binding on all medical professionals, who are
under a statutory obligation to provide medical records to
the patients or their attendants. All hospitals, whether
Government or private are liable to maintain
the medical records, and provide the same to patient or
their attendants within 72 hours of the request.
11.1.4 The Delhi Medical Council vide Circular No.
DMC/DHS/F.5/2/2009 dated 15.05.2009 casts a
statutory obligation on all registered medical practitioners
and hospitals/nursing homes to strictly adhere to
Regulation 1.3.2 of the IMC Regulations. The failure to
comply with the same would constitute professional
misconduct and entail disciplinary action.
11.1.5 This Court in Federation of Obstetrics & Gynaecological
Societies of India v. Union of India1 held that “considering
the nature of services rendered by medical professionals,
proper maintenance of records is an integral part of the
medical services.”
1 (2019) 6 SCC 283
29
11.1.6 The Respondent No.2-Complainant submitted that she
had made several requests for being provided the inpatient records for further evaluation/examination of the
baby, which was not made available to her for over 2
years after his discharge in April 2005 from the Appellant
No.1- Hospital. Respondent No.2-Complainant had to run
from one hospital to another so as to ascertain why her
son had abnormal visual responses. Despite repeated
requests, the Medical Records were withheld by the
Hospital. The Respondent No.2-Complainant had a legal
notice issued on 24.02.2007 to the Appellant No.1-
Hospital requesting for the entire in-patient medical
record of her child, and made a complaint to the Delhi
Medical Council. The Appellant No.1 -Hospital eventually
provided the medical record on 14.06.2007.
11.1.7 The Delhi Medical Council vide Order dated
14.12.2007 issued a warning to the Appellant No.1-
Hospital for the delay in supplying the medical records of
Respondent No.1 to the Complainant.
We find that withholding the medical records of
Respondent No.1, who was a premature baby, for a
30
period of over 2 years, would constitute grave
professional misconduct under Regulation 7, apart from
being a gross deficiency in service on the part of the
Appellant No.1-Hospital and its management.
11.2 Failure to diagnose Retinopathy of Prematurity (ROP)
Retinopathy of Prematurity (ROP) is one of the
major emerging causes of childhood blindness. A
premature baby is not born with ROP. At the time of
birth, particularly in the case of premature babies, the
retina is immature, which is natural at this stage. It is
the post-natal developments in the retinal vessels which
could lead to ROP.
11.2.1 As per medical literature, all infants with a birth
weight of less than 1500 grams, or gestational age of
less than 32 weeks, are required to be mandatorily
screened for ROP, which usually takes about 4 to 5
weeks to be diagnosed. The routine screening should
begin no later than 4 weeks after birth, and possibly
even earlier for infants at higher risk (2 to 3 weeks).
31
The standard of care is to be judged in the light of
the protocols and standard procedures prevailing on
the date of birth, and not on the date of trial. 2
11.2.2 In Programme Planning and Screening Strategy in
Retinopathy of Prematurity3, published in March 2003
co-authored by Drs. Subhadra Jalali, MS; Raj Anand,
MS; Harsh Kumar, MD; Mangat R Dogra, MS;
Rajvardhan Azad, MD,FRCS (Ed); Lingam Gopal, MS
have opined that:
“There are several compelling reasons to have a
screening programme for ROP. Firstly, the premature child
is not born with ROP and retinal disease is not present at
birth. Each prematurely born child has a potential for
normal vision, even if the retina is immature at birth.
Screening for ROP aims to identify those infants who have
reached or have the potential to reach threshold ROP,
which if untreated, may cause blindness or visual
impairment. This has medico-legal implications. There are
indefensible legal repercussions should an infant develop
ROP and retinal detachment, but had not received eye
examination. Secondly, the grief and the personal tragedy
for the family is tremendous, besides the economic burden
of such childhood blindness. The aim of screening
premature babies for ROP is to detect all treatable
2 Nizam's Institute of Medical Sciences v. Prasanth S. Dhananka, (2009) 6 SCC 1; Jacob
Mathew v. State of Punjab (2005) 6 SCC 1 : 2005 SCC (Cri) 1369
3 Subhadra Jalali, MS; Raj Anand, MS; Harsh Kumar, MD; Mangat R Dogra, MS;
Rajvardhan Azad, MD,FRCS (Ed); Lingam Gopal, MS, Programme Planning and Screening
Strategy in Retinopathy of Prematurity, Indian J Ophthalmol 2003 (March 2003), Vol. 51,
Pages 89-99
32
neonates, with minimal expense of time and resources.
This also aims at not screening those babies who are
unlikely to get a severe form of ROP. Early recognition of
ROP by screening provides an opportunity for effective
treatment…. The criteria for screening babies are based on
two critical factors – the birth weight and the gestational
age.”
[emphasis supplied]
A well organised screening strategy and timely
intervention can to a large extent prevent blindness
due to ROP. Extensive clinical trials and publications4
have established that among other factors, gestation
period and low birth weight are critical in the
pathophysiology of ROP. If detected early and treated
with peripheral retinal cryopexy or laser, ROP
blindness can be prevented to some extent.5 Once the
4 Palmer EA, Flynn JT, Hardy RJ, Phleps DL, Phillips CL, Schaffer DB, Incidence and early
course of retinopathy of prematurity. Ophthalmology 1991;98:1628-40; Fielder AR, Shaw
DF, Robinson J, Ng YK, Natural history of retinopathy of prematurity: A prospective study.
Eye 1992;6:233-42; STOP-ROP Multicentre Study Group. Supplemental therapeutic
oxygen for prethreshold retinopathy of prematurity (STOP-ROP), a randomised controlled
trial: Primary outcomes. Paediatrics 2000;150:295-10. Cryotherapy for Retinopathy of
Prematurity Cooperative Group. Multicentre trial of cryotherapy for retinopathy of
prematurity-Three-month outcome. Arch Ophthalmol 1990;108:195-40.
5 Cryotherapy for Retinopathy of Prematurity Cooperative Group. Multicentre trial of
cryotherapy for retinopathy of prematurity-Three-month outcome, Arch Ophthalmol
1990;108:195-40 ; Cryotherapy for Retinopathy of Prematurity Cooperative Group.
Multicentre trial of cryotherapy for retinopathy of prematurity-3¹⁄₂ years outcome for both
structure and function, Arch Ophthalmol 1993;111:339-44. Tsisis T, Tasman W, Mcnamara
JA, Brown G, Vander J. Diode laser photocoagulation for retinopathy of prematurity, Trans
Am Ophthal Soc 1997;95:231-36.; Despande DA, Chaturvedi M, Gopal L, Ramachandram S,
Shanmugasundaram R. Treatment of threshold retinopathy of prematurity, Indian J
Ophthalmol 1998;46:15 19.
33
case crosses Stage 3, in very few cases can the sight be
saved even by extensive vitreoretinal surgery.6
11.2.3 This Court considered this issue in a similar case in V.
Krishnakumar v. State of Tamil Nadu7. In that case, a
premature female baby was born in the 29th week of
pregnancy. The infant weighed only 1.25 kgs at birth.
The doctors failed to examine the baby for ROP, or
advise the parents that the baby was required to be
seen by a paediatric ophthalmologist since there was a
possibility of occurrence of ROP, so as to avert
permanent blindness. The discharge summary neither
disclosed a warning to the infant's parents of the
possibility that the infant might develop ROP for which
certain precautions must be taken, nor any signs that
the doctors were themselves cautious of the dangers of
development of ROP. The doctors attempted to cover
up their gross negligence of not having examined the
infant for the onset of ROP, which is a standard
precaution for a well-known condition in such a case.
6 Cherry TA, Lambert SR, Capone-A Jr. Electroretinographic findings in stage V retinopathy
of prematurity after retinal reattachment, Retina 1995;15:21-24; Noorily SW, Small K, Juan
E de, Machemar R. Scleral bucking surgery for stage 4B retinopathy of prematurity,
Ophthalmology 1992;99:263-68.
7 (2015) 9 SCC 388 : (2015) 4 SCC (Civ) 546
34
This Court after reviewing and analysing the
medical literature on ROP, observed that the problem
occurs in infants who are prematurely born, and who
have been administered oxygen and blood transfusion
upon birth. If detected during early stages, it can be
prevented. In para 4 of the judgment, this Court held
that:
“4. ….It is said that prematurity is one of the most
common causes of blindness and is caused by an initial
constriction and then rapid growth of blood vessels in the
retina. When the blood vessels leak, they cause scarring.
These scars can later shrink and pull on the retina,
sometimes detaching it. The disease advances in severity
through five stages — 1, 2, 3, 4 and 5 (5 being the terminal
stage). Medical literature suggests that Stage 3 can be
treated by Laser or Cryotherapy treatment in order to
eliminate the abnormal vessels. Even in Stage 4, in some
cases, the central retina or macula remains intact thereby
keeping intact the central vision. When the disease is
allowed to progress to Stage 5, there is a total detachment
and the retina becomes funnel shaped leading to
blindness. There is ample medical literature on the subject.
It is, however, not necessary to refer all of it. Some
material relevant to the need for check-up for ROP for an
infant is:
“All infants with a birth weight less than 1500 gm or
gestational age less than 32 weeks are required to be
screened for ROP.” [ AIIMS Report dated 21-8-2007]
35
5. It is undisputed that the relationship of birth weight and
gestational age to ROP as reproduced in NCDRC's order is
as follows:
“Most ROP is seen in very low birth weight infants, and the
incidence is inversely related to birth weight and
gestational age. About 70-80% of infants with birth weight
less than 1000 gm show acute changes, whereas above
1500 gm birth weight the frequency falls to less than
10%.”
6. …. It is further observed that ROP is a visually
devastative disease that often can be treated successfully
if it is diagnosed in time.”
[emphasis supplied]
This Court relied upon a Report dated 21.08.2007
of the All India Institute of Medical Sciences, New Delhi
comprising of five members, of which, four were
ophthalmological specialists. The Board opined as under:
“A premature infant is not born with Retinopathy of
Prematurity (ROP), the retina though immature is normal
for this age. The ROP usually starts developing 2-4 weeks
after birth when it is mandatory to do the first screening of
the child. The current guidelines are to examine and screen
the babies with birth weight<1500 gm and <32 weeks
gestational age, starting at 31 weeks post-conceptional
age (PCA) or 4 weeks after birth, whichever is later.
Around a decade ago, the guidelines in general were the
same and the premature babies were first examined at 31-
33 weeks post-conceptional age or 2-6 weeks after birth.
There is a general agreement on these above guidelines on
a national and international level. The attached annexure
explains some authoritative resources and guidelines
36
published in national and international literature
especially over the last decade.
However, in spite of ongoing interest world over in
screening and management of ROP and advancing
knowledge, it may not be possible to exactly predict which
premature baby will develop ROP and to what extent and
why.”
[emphasis supplied]
On a review of the literature on ROP, the Supreme Court in
V. Krishnakumar (supra) set out the screening guidelines as
follows:
Year Source First screening Who to screen
2006 American Academy
of Paediatrics et al.
31 weeks PCA or 4
weeks after birth,
whichever is later.
<1500 gm birth
weight or <32 weeks
GA or higher.
2003 Jalali S et al. Indian J
Ophthalmology
31 weeks PCA or 3-4
weeks after birth,
whichever is earlier.
<1500 gm birth
weight or <32 weeks
GA or higher.
2003 Azad et al. JIMA 32 weeks PCA or 4-5
weeks after birth,
whichever is earlier.
<1500 gm birth
weight or <32 weeks
GA or higher.
2002 Aggarwal R et al.
Indian J. Paediatrics
32 weeks PCA or 4-6
weeks after birth,
whichever is earlier.
<1500 gm birth
weight or <32 weeks
GA.
1997 American Academy
of Paediatrics et al.
31-33 weeks PCA or
4-6 weeks after birth.
<1500 gm birth
weight or <28 weeks
GA or higher.
1996 Maheshwari R et al.
National Med. J.
India
32 weeks PCA or 2
weeks after birth,
whichever is earlier.
<1500 gm birth
weight or <35 weeks
GA or 02>24 hrs.
1988 Cryotherapy ROP
Group
4-6 weeks after birth. <1250 gm birth
weight.
This Court observed that ROP starts developing 2 to 4
weeks after birth when it is mandatory to do the first
screening of the child. As per the report of AIIMS “it may not
37
be possible to exactly predict which premature baby will
develop ROP and to what extent and why”. This would
necessitate the need for a check-up in all such cases.
11.2.4 It is clear from the above medical literature that ROP is a
visually progressive disease, which can be treated
successfully if it is diagnosed on time. ROP advances
through 5 stages. Medical literature suggests that Stage 3
can be treated by Laser or Cryotherapy treatment in order to
eliminate the abnormal vessels. Even at Stage 4, in some
cases, the central retina or macula remains intact thereby
keeping intact the central vision. When the disease
progresses to Stage 5, there is a total detachment, and the
retina becomes funnel shaped, leading to blindness.
11.2.5 We have carefully perused the original Medical Records of
the Appellant No.1-Hospital, which were provided in a
sealed cover to the Court.
We find that there is an entry at Page 100 of the
medical records dated 25.04.2005 recorded at 9:00 a.m.
which reads as under:
“ 25/4/05
9 AM Stable
Wt: 1.56 kg
Accepting cup feeds
S/E – NAD
38
D19 of Inj Amphocan
Plan for Discharge tomorrow
Adv:
- Breast feeds
- Cont. rest
- ROP Checkup (Dr Jha) ”
[emphasis supplied]
At the bottom of page 102 of the medical records, there
is another entry dated 26.04.2005, which reads as under:
“ 26/4 by Dr. SNJ
No ROP
Review, 2 weeks. ”
The said noting is signed by Dr. S.N. Jha – Appellant
No.4. There is, however, no time mentioned against this
noting.
A visual examination of the original medical
records/Treatment Sheet shows that this entry is not
recorded in the same sequence as all previous and
subsequent notings. The entries recorded at Page 100 and
Page 102 have been made at the bottom of the page. The
date “26/4” is mentioned in a different column, unlike the
other entries made before and after this entry. There is no
time of the ophthalmological examination by Appellant
No.4-Dr. S.N. Jha on 26.04.2005 mentioned in the record,
39
unlike all other notings by other doctors, who have
examined the patient, where the time is clearly recorded.
On the next page i.e. page 103 of the medical record, it
is mentioned as “Day 28” i.e. 26.04.2005 on the top of the
page. The first entry on that date is recorded at 10.30 am.
This would indicate that the baby was not examined prior
to 10.30 a.m. by any doctor.
There is no contemporaneous record to corroborate
that ROP screening was done by Appellant No.4 on
26.04.2005. The Nurses’ Daily Record or Treatment Sheet
do not mention that the dilation of the pupils of the baby
were carried out by administration of Cyclopentolate (0.5%)
and Phenylephrine (2.5%) drops to conduct test of ROP.
We had orally enquired from the learned counsel
appearing on behalf of Appellant No.4- Dr. S.N. Jha about
the approximate time at which the ROP check-up was done
by him on 26.04.2005. The counsel was unable to specify
the time at which the baby was examined by him.
11.2.6 The Respondent No.1-baby was discharged on 29.04.2005.
The Complainants were provided with a Discharge Slip. The
Discharge Slip does not contain any advice for a mandatory
40
follow-up for ROP. Rather, the Discharge Slip only advised
the Complainant to bring the Respondent No.1 for a review
to the Paediatrics OPD on Wednesday or Saturday at 4 P.M.
11.2.7 The Counsel for the Hospital and the Doctors contended that
post-discharge, the Respondent No.2-Complainant did not
bring the baby to the speciality Paediatric OPD for a checkup as advised in the Discharge Summary.
11.2.8 We have seen the original medical records produced by the
Appellant No.1-Hospital, and find that on both occasions,
i.e. 04.05.2005 and 13.07.2005, the Complainants went
correctly to the Paediatrics Unit of the General OPD. Hence,
the contention of the Appellants is liable to rejected as being
completely baseless.
11.2.9 The Complainant took the baby for a follow up check-up
post-discharge to the Paediatrics-III Department on two
occasions i.e. 04.05.2005 and 13.07.2005.
The baby was examined by Appellants No. 2 and 3 on
04.05.2005. In the Treatment Sheet, there is no
recommendation to have ROP test done, nor was the patient
advised to come back after two weeks. The noting on
04.05.2005 is extracted hereinbelow for ready reference:
41
“ MAHARAJA AGRASEN HOSPITAL
Punjabi Bagh, New Delhi – 26
Ph. 252266465 to 54 (10 lines)
General OPD Prescription
MAH No.: 0505404 Date : 04-05-05
Deptt./Unit …..PAEDIATRICS-III WED, SAT…09:00 To
11:00
Consultants : Dr. G.S. Kochhar / Dr.Naveen Jain
B/O POOJA SHARMA Age /Sex 1 Mths
Male.
Wt 1.65 kg
FUC 32 weeks preterm AGA with HMD
with bilateral pneumothorax
with fungal septicemia.
Baby stable.
Adv.
- Breast feeds.
- Continue supplements.
------------------
Signature Dr. Naveen Jain. ”
The Complainant took the baby for a further follow-up
on 13.07.2005 to the Paediatrics-III Department. The baby
was examined by Dr. Manoj on behalf of Appellant No.2. The
medical record even on this date does not mention any
advice for an ROP test. The attending doctor only advised
that a BERA test be done. The noting on 13.07.2005 is
reproduced hereinbelow for ready reference:
42
“ MAHARAJA AGRASEN HOSPITAL
Punjabi Bagh, New Delhi – 26
Ph. 252266465 to 54 (10 lines)
General OPD Prescription
MAH No 05052879 Date 13-07-05
Deptt.: PAEDIATRICS-III WED, SAT…09:00 To
11:00
Consultants : Dr. G.S. Kochhar / Dr.Naveen Jain
RISHABH SHARMA Age /Sex 4 Mths Male.
B/O Pooja Sharma
Wt 4 kg
Dr. Manoj Advice – BERA test
Calcirol sachet (3)
Visyneral-Z drops 8 drops daily.
RB tone drop 5 drops.
Syp. Lactocal 1/2 tsf.
------------------
Dr. G.S. Kochhar (Signature) ”
It is thus abundantly clear that the baby was rightly
taken to the Paediatrics Unit of the General OPD Clinic at
the chronological age of 4 to 5 weeks, when the onset of
ROP could have been detected. However, there was no
advice given by the treating doctors i.e. Appellants Nos. 2
and 3 – the Consultant Paediatricians, nor the Appellant
No.4 – Ophthalmologist to conduct the ROP test.
11.2.10 We find that the ROP was neither advised, nor carried out at
all by the Appellant No.1-Hospital, or Appellant No.4-Dr.
S.N. Jha, the Senior Ophthalmologist, throughout the
43
period of hospitalisation of the baby, or even after discharge.
The baby was born in the 32nd gestational week, and was
1.49 kgs at birth. As per standard protocol, the ROP
screening ought to have been done between 3-4 weeks from
birth. The baby remained admitted for 27 days in the
Hospital from 02.04.2005 to 29.04.2005. There is no
justification whatsoever why the mandatory screening of
ROP was not done for the baby, while he was under the
direct care and supervision of the Appellants.
We affirm the findings of the National Commission of
gross negligence by the Appellant Nos. 2 to 4-Doctors, and
deficiency of service by the Appellant No.1- Hospital.
11.3 Report of the Medical Board constituted by AIIMS
11.3.1 A perusal of the AIIMS Report 11.05.2012 shows that it was
premised on the alleged entry recorded by Appellant No.4 -
Dr. S.N. Jha on 26.04.2005, which records that ROP test
was conducted, and no ROP was detected.
We have already recorded a finding that the entry
made in the Treatment Sheet (at pages 100 and 102 of the
original Medical Records) seems to be an interpolation done
subsequently to cover up the failure of the Hospital and the
44
Doctors to advise or conduct the mandatory ROP check-up
and follow-up protocol.
The second point contained in the AIIMS Report that
the baby was not taken to the Paediatrics OPD is wholly
fallacious. We have seen the medical records, and find that
the baby was, in fact, taken to the Paediatrics Unit of the
General OPD. Hence, the basis of the Report is
misconceived, and cannot be relied upon.
11.3.2 It is well-settled that a court is not bound by the evidence of
an expert, which is advisory in nature. The court must
derive its own conclusions after carefully sifting through the
medical records, and whether the standard protocol was
followed in the treatment of the patient. The duty of an
expert witness is to furnish the Court with the necessary
scientific criteria for testing the accuracy of the conclusions,
so as to enable the Court to form an independent opinion by
the application of this criteria to the facts proved by the
evidence of the case.8 Whether such evidence could be
8 Ramesh Chandra Aggarwal vs. Regence Hospital Ltd. & Ors. (2009) 9 SCC 709; State of
H.P. v. Jai Lal (1999) 7 SCC 280 : 1999 SCC (Cri) 1184
45
accepted or how much weight should be attached to it is for
the court to decide.
9
11.3.3 We accept the view taken by the National Commission in
disregarding the opinion of the Medical Board constituted by
AIIMS.
11.3.4 The Complainants have discharged the initial burden of
proof10 by making out a case of clear negligence on the part
of the Appellant No.1-Hospital and the Paediatric doctors
under whose care the baby was admitted, as also Appellant
No.4 – Dr. S.N. Jha, the senior Ophthalmologist attached to
the Appellant No.1-Hospital.
The Appellant No.1 - Hospital and the Appellants Nos.
2-4 - Doctors have failed to satisfy the Court that ROP tests
were conducted at any point of time, or that the
Complainants were even advised to get the ROP test done.
11.4 Medical Negligence and Duty of Care
11.4.1 Medical negligence comprises of the following
constituents: (1) A legal duty to exercise due care on the part
of the medical professional; (2) failure to inform the patient of
9 Malay Kumar Ganguly v. Dr. Sukumar Mukherjee, (2009) 9 SCC 221 : (2010) 2 SCC (Cri)
299 : (2009) 3 SCC (Civ) 663; V. Kishan Rao v. Nikhil Super Speciality Hospital, (2010) 5
SCC 513 : (2010) 2 SCC (Civ) 460
10 Nizam's Institute of Medical Sciences v. Prasanth S. Dhananka, (2009) 6 SCC 1 : (2009) 2
SCC (Civ) 688; Savita Garg v. National Heart Institute (2004) 8 SCC 56
46
the risks involved; (3) the patient suffers damage as a
consequence of the undisclosed risk by the medical
professional; (4) if the risk had been disclosed, the patient
would have avoided the injury; (5) breach of the said duty
would give rise to an actionable claim of negligence.
The cause of action for negligence arises only when
damage occurs, since damage is a necessary ingredient of
this tort. In a complaint of medical negligence, the burden is
on the complainant to prove breach of duty, injury and
causation. The injury must be sufficiently proximate to the
medical practitioner's breach of duty. In the absence of
evidence to the contrary adduced by the opposite party, an
inference of causation may be drawn even though positive or
scientific proof is lacking.
11
11.4.2 Medical negligence is the breach of a duty of care by
an act of omission or commission by a medical professional
of ordinary prudence. Actionable medical negligence is the
neglect in exercising a reasonable degree of skill and
knowledge to the patient, to whom he owes a duty of care,
which has resulted in injury to such person. The standard to
11 Postgraduate Institute of Medical Education & Research v. Jaspal Singh, (2009) 7 SCC 330
: (2009) 3 SCC (Cri) 399 : (2009) 3 SCC (Civ) 114
47
be applied for adjudging whether the medical professional
charged has been negligent or not, in the performance of his
duty, would be that of an ordinary competent person
exercising ordinary skill in the profession. The law requires
neither the very highest nor a very low degree of care and
competence to adjudge whether the medical professional has
been negligent in the treatment of the patient.
12
11.4.3 The degree of skill and care required by
a medical practitioner stated in Halsbury's Laws of England13
is as follows:-
“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.
35. Degree of skill and care required.—…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
12 Refer to Laxman Balkrishna Joshi (Dr.) v. Dr. Trimbak Bapu Godbole, (1969) 1 SCR 206 :
AIR 1969 SC 128; Kusum Sharma v. Batra Hospital (2010) 3 SCC 480 : (2010) 2 SCC (Cri)
1127 : (2010) 1 SCC (Civ) 747
13 4th Edn., Vol. 26 pp. 17-18; 4th Edition, Vol.30, Para 35
48
ordinary skill would have taken had he been acting with
ordinary care.”
[emphasis supplied]
11.4.4 Lord Denning, in Hucks v. Cole14, held that a medical
practitioner would be liable only where his conduct falls
below the standards of a reasonably competent practitioner
in his field.
11.4.5 In earlier judgments, this Court referred to the Bolam
test laid down in Bolam v. Friern Hospital Management
Committee15. In this case, the doctor treating the patient
suffering from mental illness was held not to be guilty of
medical negligence by the Queen’s Bench Division for failure
to administer muscle-relaxant drugs and using physical
restraint in the course of electro-convulsive therapy. McNair,
J., in his opinion, explained the law in the following words16:
“… where you get a situation which involves the use of
some special skill or competence, then the test as to whether
there has been negligence or not is not the test of the man on
the top of a Clapham omnibus, because he has not got this
special skill. The test is the standard of the ordinary skilled
man exercising and professing to have that special skill. A
man need not possess the highest expert skill; it is well14 (1968) 118 New LJ 469; followed in Postgraduate Institute of Medical Education &
Research v. Jaspal Singh, (2009) 7 SCC 330 : (2009) 3 SCC (Cri) 399 : (2009) 3 SCC (Civ)
114
15 Bolam v. Friern Hospital Management Committee, (1957) 1 WLR 582: : (1957) 2 All ER 118
16 (WLR p. 586)
49
established law that it is sufficient if he exercises the
ordinary skill of an ordinary competent man exercising that
particular art.”
[emphasis supplied]
The ratio of the Bolam case is that it is enough for the
doctor to show that the standard of care and the skill
exercised by him was that of an ordinary competent medical
practitioner exercising an ordinary degree of professional
skill. McNair, J., held that17:
“… he [a Doctor] is not guilty of negligence if he
has acted in accordance with a practice accepted as proper by
a responsible body of medical men skilled in that particular
art.”
11.4.6 In the subsequent judgment rendered in
Eckersley v. Binnie18, Bingham, L.J. explained
the Bolam test in the following words: (Con LR p. 79)
“From these general statements it follows that a professional
man should command the corpus of knowledge which forms
part of the professional equipment of the ordinary member of
his profession. He should not lag behind other ordinary
assiduous and intelligent members of his profession in the
knowledge of new advances, discoveries and developments in
his field. He should have such an awareness as an ordinarily
competent practitioner would have of the deficiencies in his
17 (WLR. P 587)
18 (1988) 18 Con LR 1; followed in Jacob Mathew v. State of Punjab, (2005) 6 SCC 1 : 2005
SCC (Cri) 1369; S.K. Jhunjhunwala v. Dhanwanti Kaur, (2019) 2 SCC 28
50
knowledge and the limitations on his skill. He should be alert to
the hazards and risks in any professional task he undertakes
to the extent that other ordinarily competent members of the
profession would be alert. He must bring to any professional
task he undertakes no less expertise, skill and care than other
ordinarily competent members of his profession would bring,
but need bring no more. The standard is that of the reasonable
average. The law does not require of a professional man that he
be a paragon combining the qualities of polymath and prophet.
(Charlesworth & Percy, ibid., para 8.04)”
[emphasis supplied]
A medical professional should be alert to the hazards
and risks in any professional task he undertakes to the
extent that other ordinarily competent members of the
profession would be alert. He must bring to any professional
task he undertakes reasonable skill that other ordinarily
competent members of his profession would bring.
11.4.7 This Court followed the Bolam test in Jacob Mathew v.
State of Punjab19 wherein it was held that the Bolam test has
been widely accepted as decisive of the standard of care
required by medical practitioners, and it is invariably cited
with approval before the courts in India, and applied as a
touchstone to test the pleas of medical negligence. The court
51
summed up the law on medical negligence in the following
words:
“48. (1) Negligence is the breach of a duty caused by omission
to do something which a reasonable man guided by those
considerations which ordinarily regulate the conduct of human
affairs would do, or doing something which a prudent and
reasonable man would not do. The definition of negligence as
given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice
G.P. Singh), referred to hereinabove, holds good. Negligence
becomes actionable on account of injury resulting from the act
or omission amounting to negligence attributable to the person
sued. The essential components of negligence are three: ‘duty’,
‘breach’ and ‘resulting damage’.
(2) Negligence in the context of the medical profession
necessarily calls for a treatment with a difference. To infer
rashness or negligence on the part of a professional, in
particular a doctor, additional considerations apply. A case of
occupational negligence is different from one of professional
negligence. A simple lack of care, an error of judgment or an
accident, is not proof of negligence on the part of a medical
professional. So long as a doctor follows a practice acceptable
to the medical profession of that day, he cannot be held liable
for negligence merely because a better alternative course or
method of treatment was also available or simply because a
more skilled doctor would not have chosen to follow or resort to
that practice or procedure which the accused followed. When it
comes to the failure of taking precautions, what has to be seen
is whether those precautions were taken which the ordinary
experience of men has found to be sufficient; a failure to use
special or extraordinary precautions which might have
prevented the particular happening cannot be the standard for
judging the alleged negligence. So also, the standard of care,
52
while assessing the practice as adopted, is judged in the light
of knowledge available at the time of the incident, and not at
the date of trial. Similarly, when the charge of negligence arises
out of failure to use some particular equipment, the charge
would fail if the equipment was not generally available at that
particular time (that is, the time of the incident) at which it is
suggested it should have been used.
(3)A professional may be held liable for negligence on one of the
two findings: either he was not 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 possible for every professional to possess
the highest level of expertise or skills in that branch which he
practices. A highly skilled professional may be possessed of
better qualities, but that cannot be made the basis or the
yardstick for judging the performance of the professional
proceeded against on indictment of negligence.
(4)The test for determining medical negligence as laid down in
Bolam case [(1957) 1 WLR 582 : (1957) 2 All ER 118] holds
good in its applicability in India.”
[emphasis supplied]
11.4.8 In recent years, the Bolam test has been discarded by
the courts in England. In Bolitho v. City and Hackney Health
Authority20, a five judge bench of the House of Lords ruled
that21 :
20 (1998) 1 AC 232 : (1997) 3 WLR 1151 : (1997) 4 All ER 771 (HL)
21 (AC pp. 241 G-H and 242 A-B)
53
“… the court is not bound to hold that a defendant doctor
escapes liability for negligent treatment or diagnosis just
because he leads evidence from a number of medical experts
who are genuinely of opinion that the defendant's treatment or
diagnosis accorded with sound medical practice. In the Bolam22
case itself, McNair J. stated that the defendant had to have
acted in accordance with the practice accepted as proper by a “
responsible body of medical men.” Later, .. he referred to “a
standard of practice recognised as proper by a competent
reasonable body of opinion.” Again, in the passage which I
have cited from Maynard's23 case, Lord Scarman refers to a
“respectable” body of professional opinion. The use of these
adjectives—responsible, reasonable and respectable—all show
that the court has to be satisfied that the exponents of the body
of opinion relied upon can demonstrate that such opinion has a
logical basis. In particular in cases involving, as they so often
do, the weighing of risks against benefits, the judge before
accepting a body of opinion as being responsible, reasonable or
respectable, will need to be satisfied that, in forming their
views, the experts have directed their minds to the question of
comparative risks and benefits and have reached a defensible
conclusion on the matter.”
[emphasis supplied]
Lord Browne-Wilkinson, speaking for the bench, in his
opinion stated that despite a body of professional opinion
approving the doctor’s conduct, a doctor can be held liable
for negligence, if it is demonstrated that the professional
opinion is not capable of withstanding logical analysis24:
22 [1957] 1 W.L.R. 583, 587
23 [1984] 1 W.L.R. 634, 639
24 (AC p.243 A-E)
54
“These decisions demonstrate that in cases of diagnosis and
treatment there are cases where, despite a body of professional
opinion sanctioning the defendant's conduct, the defendant can
properly be held liable for negligence (I am not here considering
questions of disclosure of risk). In my judgment that is because,
in some cases, it cannot be demonstrated to the judge's
satisfaction that the body of opinion relied upon is reasonable
or responsible. In the vast majority of cases the fact that
distinguished experts in the field are of a particular opinion will
demonstrate the reasonableness of that opinion. In particular,
where there are questions of assessment of the relative risks
and benefits of adopting a particular medical practice, a
reasonable view necessarily presupposes that the relative risks
and benefits have been weighed by the experts in forming their
opinions. But if, in a rare case, it can be demonstrated that the
professional opinion is not capable of withstanding logical
analysis, the judge is entitled to hold that the body of opinion is
not reasonable or responsible.
[emphasis supplied]
11.4.9 A five judge bench of the Australian High Court in
Rogers v. Whitaker25 identified the basic flaw involved in
approaching the standard of duty of care of a doctor as laid
down in Bolam (supra), and held that:
“5. ….The law imposes on a medical practitioner a duty to
exercise reasonable care and skill in the provision of
professional advice and treatment. That duty is a "single
comprehensive duty covering all the ways in which a doctor is
25 (1992) 109 Aus LR 625: [1992]HCA 58
55
called upon to exercise his skill and judgment" 26; it extends to
the examination, diagnosis and treatment of the patient and the
provision of information.”
“12. In Australia, it has been accepted that the standard of care
to be observed by a person with some special skill or
competence is that of the ordinary skilled person exercising and
professing to have that special skill.27 But, that standard is not
determined solely or even primarily by reference to the practice
followed or supported by a responsible body of opinion in the
relevant profession or trade.28 Even in the sphere of diagnosis
and treatment, the heartland of the skilled medical practitioner,
the Bolam principle has not always been applied.
29 Further,
and more importantly, particularly in the field of non-disclosure
of risk and the provision of advice and information, the Bolam
principle has been discarded and, instead, the courts have
adopted the principle that, while evidence of acceptable medical
practice is a useful guide for the courts, it is for the courts to
adjudicate on what is the appropriate standard of care after
giving weight to "the paramount consideration that a person is
entitled to make his own decisions about his life".
[emphasis supplied]
11.4.10 A seven-judge bench of the U.K. Supreme Court in a
more recent judgment delivered in Montgomery v Lanarkshire
Health Board30 traced the changes in the jurisprudence of
medical negligence in England, and held that “patients are
26 Sidaway v. Governors of Bethlem Royal Hospital [1985] UKHL 1; (1985) AC 871
27 Cook v. Cook [1986] HCA 73; (1986) 162 CLR 376, at pp 383-384; Papatonakis v.
Australian Telecommunications Commission [1985] HCA 3; (1985) 156 CLR 7, at p 36; Weber
v. Land Agents Board (1986) 40 SASR 312, at p 316; Lewis v. Tressider Andrews Associates
Pty. Ltd. (1987) 2 Qd R 533.
28 Florida Hotels Pty. Ltd. v. Mayo [1965] HCA 26; (1965) 113 CLR 588)
29 Albrighton v. Royal Prince Alfred Hospital (1980) 2 NSWLR 542; E v. Australian Red Cross
[1991] FCA 20; (1991) 99 ALR 601)
30 [2015] UKSC 11
56
now widely regarded as persons holding rights, rather than as
the passive recipients of the care of the medical profession”.
The Supreme Court noted that the courts have tacitly ceased
to apply the Bolam test in relation to the advice given by the
doctor to their patients. The Court summed up the law on
medical negligence in the following words:
“82. In the law of negligence, this approach entails a duty on
the part of doctors to take reasonable care to ensure that a
patient is aware of material risks of injury that are inherent in
treatment. This can be understood, within the traditional
framework of negligence, as a duty of care to avoid exposing a
person to a risk of injury which she would otherwise have
avoided, but it is also the counterpart of the patient’s
entitlement to decide whether or not to incur that risk. The
existence of that entitlement, and the fact that its exercise does
not depend exclusively on medical considerations, are
important. They point to a fundamental distinction between, on
the one hand, the doctor’s role when considering possible
investigatory or treatment options and, on the other, her role in
discussing with the patient any recommended treatment and
possible alternatives, and the risks of injury which may be
involved.
87. The correct position, in relation to the risks of injury
involved in treatment, can now be seen to be substantially that
adopted in Sidaway by Lord Scarman, and by Lord Woolf MR in
Pearce, subject to the refinement made by the High Court of
Australia in Rogers v Whitaker, which we have discussed at
paras 77-73. An adult person of sound mind is entitled to
decide which, if any, of the available forms of treatment to
57
undergo, and her consent must be obtained before treatment
interfering with her bodily integrity is undertaken. The doctor is
therefore under a duty to take reasonable care to ensure that
the patient is aware of any material risks involved in any
recommended treatment, and of any reasonable alternative or
variant treatments. The test of materiality is whether, in the
circumstances of the particular case, a reasonable person in the
patient’s position would be likely to attach significance to the
risk, or the doctor is or should reasonably be aware that the
particular patient would be likely to attach significance to it.”
[emphasis supplied]
11.4.11 This Court in V. Kishan Rao v. Nikhil Super Speciality
Hospital31 has opined that the Bolam test requires reconsideration. A.K. Ganguly, J. speaking for this Court,
observed that:
“23. Even though Bolam test was accepted by this Court as
providing the standard norms in cases of medical negligence, in
the country of its origin, it is questioned on various grounds. It
has been found that the inherent danger in Bolam test is that if
the courts defer too readily to expert evidence medical
standards would obviously decline. Michael Jones in his
treatise on Medical Negligence (Sweet and Maxwell), 4th Edn.,
2008 criticised the Bolam test as it opts for the lowest common
denominator. The learned author noted that opinion was
gaining ground in England that Bolam test should be restricted
to those cases where an adverse result follows a course of
treatment which has been intentional and has been shown to
benefit other patients previously. This should not be extended
to certain types of medical accidents merely on the basis of how
31 (2010) 5 SCC 513 : (2010) 2 SCC (Civ) 460
58
common they are. It is felt “to do this would set us on the
slippery slope of excusing carelessness when it happens often
enough” (see Michael Jones on Medical Negligence, para 3-039
at p. 246).
25. Even though Bolam test “has not been uprooted” it has
come under some criticism as has been noted in Jackson &
Powell on Professional Negligence (Sweet and Maxwell), 5th
Edn., 2002. The learned authors have noted (see para 7-047 at
p. 200 in Professional Negligence) that there is an argument to
the effect that Bolam test is inconsistent with the right to life
unless the domestic courts construe that the requirement to take
reasonable care is equivalent with the requirement of making
adequate provision for medical care. In the context of such
jurisprudential thinking in England, time has come for this
Court also to reconsider the parameters set down in Bolam test
as a guide to decide cases on medical negligence and specially
in view of Article 21 of our Constitution which encompasses
within its guarantee, a right to medical treatment and medical
care.
26. In England, Bolam test is now considered merely a “rule of
practice or of evidence. It is not a rule of law” (see para 1.60
in Clinical Negligence by Michael Powers QC, Nigel Harris and
Anthony Barton, 4th Edn., Tottel Publishing). However, as in
the larger Bench of this Court in Jacob Mathew v. State of
Punjab, Lahoti, C.J. has accepted Bolam test as correctly
laying down the standards for judging cases of medical
negligence, we follow the same and refuse to depart from it.”
[emphasis supplied]
59
11.4.12 More recently, this Court in Arun Kumar Manglik v.
Chirayu Health and Medicare (P) Ltd.32 has held that the
standard of care as enunciated in Bolam (supra) must evolve
in consonance with its subsequent interpretation adopted by
English and Indian courts.
11.4.13 Applying the aforesaid principles to the facts of the
present case, Appellant Nos. 2 and 3 viz. Dr. G.S. Kochhar
and Dr. Naveen Jain, the Consultant Paediatricians,
undoubtedly possessed the skill and qualifications of a
Paediatrician, and the baby was placed under their direct
care and treatment from birth till he was 3 ½ months old.
They owed a duty of care to the baby and his parents.
Appellant No.4- Dr. S.N. Jha, the Senior Consultant
Ophthalmologist, who was engaged by the Appellant No.1-
Hospital, and was the specialist in the Ophthalmology
Department, ought to have followed the standard protocol for
screening the Respondent No.1-baby for ROP, which is
prescribed at the chronological age of 3 to 4 weeks after
birth.
32 (2019) 7 SCC 401
60
11.4.14 Appellant Nos.1 to 3 are liable for medical negligence
since at no stage were the parents of Complainant No.1
either advised or guided about the possibility of occurrence of
ROP in a premature baby, nor was the baby examined by
Appellant No.4, the Ophthalmologist as per standard
protocol. The doctors ought to have been fully aware of the
high chances of occurrence of ROP in a pre-term baby. The
lack of care constitutes a gross deficiency in service.
After discharge on 29.04.2005, the baby was brought
on 04.05.2005 at the chronological age of 5 weeks. Even on
this date, no ROP test was either advised or conducted.
The baby was brought for a further follow up check-up
on 13.07.2005, by which time the baby was 3 ½ months
old. Even on this visit, the Appellants did not advise or
guide the Respondent No.2-Complainant to have the ROP
test conducted.
11.4.15 After reviewing the medical literature setting out the
contemporaneous standards and established protocols on
ROP, the reasonable standard of care for a premature baby,
mandates screening and checking up for ROP. It is a
medically accepted position that ROP is a reversible disease,
61
if diagnosed up to Stage 3. Had the ROP test been conducted
by the Appellants, there would have been timely detection of
the onset of ROP, which at that stage would have been
reversible.
On account of the negligence of the Appellants 2 to 4,
the disease remained undiagnosed. It came to be diagnosed
on 03.12.2005, when the baby was 8 months old, by Shroff
Charity Eye Hospital. By this time, the ROP had reached
Stage 5, when it becomes irreversible leading to total
blindness of the Respondent No.1- baby.
11.4.16 We affirm the findings of the National Commission to
hold that the Appellant No.1-Hospital, Appellant Nos. 2 and
3- the Paediatricians, and Appellant No.4 – Dr. S.N. Jha, the
Senior Ophthalmologist, owed a legal duty of care to the
Complainants/Respondents No.1 and 2. The failure to inform
the Respondent No.2-mother of the necessity to have the ROP
test conducted in the case of a pre-term baby, and the high
risk involved which could lead to total blindness, was a
breach of duty. Furthermore, the failure to carry out the ROP
test, which is mandated by standard protocol, while the baby
was under their direct care and supervision from birth till he
62
was 3 ½ months old, amounted to gross negligence by the
Doctors, and deficiency of service by the Hospital. The
consequential damage caused to the baby by not having
conducted the mandatory ROP test, which led to the total
blindess of the baby, has given rise to an actionable claim of
negligence.
11.4.17 It is well established that a hospital is vicariously liable
for the acts of negligence committed by the doctors engaged
or empanelled to provide medical care.
33 It is common
experience that when a patient goes to a hospital, he/she
goes there on account of the reputation of the hospital, and
with the hope that due and proper care will be taken by the
hospital authorities. 34 If the hospital fails to discharge their
duties through their doctors, being employed on job basis or
employed on contract basis, it is the hospital which has to
justify the acts of commission or omission on behalf of their
doctors.
35
33 Savita Garg v. National Heart Institute (2004) 8 SCC 56; Balram Prasad (2014) 1 SCC
384 : (2014) 1 SCC (Civ) 327; Achutrao Haribhau Khodwa v. State of Maharashtra (1996) 2
SCC 634; V. Krishnakumar v. State of Tamil Nadu, (2015) 9 SCC 388 : (2015) 4 SCC (Civ)
546
34 Savita Garg v. National Heart Institute (2004) 8 SCC 56 : (2004) 8 Scale 694
35 Savita Garg v. National Heart Institute (2004) 8 SCC 56 : (2004) 8 Scale 694
63
11.4.18 Accordingly, we hold Appellant No.1-Hospital to be
vicariously liable for the acts of omission and commission
committed by Appellant Nos. 2 to 4. We hold all the
Appellants as being jointly and severally liable to pay
compensation to the Complainants.
11.5 Compensation
11.5.1 Having affirmed the findings recorded by the National
Commission on the question of medical negligence and
deficiency in service by the Appellants, the issue whether
the compensation awarded by the National Commission was
just and reasonable is required to be determined.
The Complainants had claimed Rs. 1,30,25,000/- as
compensation before the National Commission. The National
Commission vide the Impugned Judgment awarded a total
sum of Rs. 64,00,000/- to the Complainants along with
interest.
11.5.2 This Court vide Order dated 06.11.2019 directed the
Appellants to release a sum of Rs.5,00,000/- (Rupees Five
Lakhs) in favour of the Respondent No.2-Complainant from
64
the amount lying deposited by the Appellant No.1-Hospital
in the Court.
This Court further directed the
Complainant/Respondent No.2 to file an affidavit regarding
the education received by the Respondent No.1, and the
level of proficiency he had attained.
11.5.3 Accordingly, the Respondent No.2- Complainant has stated
on affidavit that the Respondent No.1, who is now 14 years
old, was studying in a Government Senior Secondary School
for Blind Boys, Kingsway Camp from 2013 to 2017, and
barely received education for 4 years, up to 5th standard.
The Respondent No.1 was forced to leave school since the
Respondent No.2-Complainant was unable to bear his
educational, co-curricular and transportation expenses. The
father of Respondent No.1, who was working as a security
guard with the Municipal Corporation of Delhi, had expired
in 2013. The Respondent No.2-Complainant stated that she
is currently employed as a part-time receptionist since
2017, and earns Rs. 5,500/- per month as salary, and
receives Rs. 2,500/- per month under the Delhi Vidhwa
Pension Yojna. She further stated that Respondent No.1
65
received Rs. 2,500/- per month under the Delhi
Government’s Scheme for Subsistence Allowance to Persons
with Special Needs.
11.5.4 The grant of compensation to remedy the wrong of medical
negligence is within the realm of law of torts. It is based on
the principle of restitutio in integrum. The said principle
provides that a person is entitled to damages which should
as nearly as possible get that sum of money which would
put him in the same position as he would have been if he
had not sustained the wrong.36
11.5.5 In our considered view, having regard to the finding that the
medical negligence in the instant case occurred in 2005,
and the litigation has been pending before this Court for
over 3 years, coupled with the fact that the additional
monthly expenses such as the care of an attendant/nurse,
educational expenses of the patient in a special school,
assistive devices etc. have not been taken into account, it
would serve the ends of justice if the compensation awarded
36 Livingstone v. Rawyards Coal Co., (1880) LR 5 AC 25 (HL)]; followed in Malay Kumar
Ganguly v. Sukumar Mukherjee, (2009) 9 SCC 221 : (2009) 3 SCC (Civ) 663 : (2010) 2 SCC
(Cri) 299 and V. Krishnakumar v. State of T.N., (2015) 9 SCC 388 : (2015) 4 SCC (Civ) 546;
Balram Prasad v. Kunal Saha, (2014) 1 SCC 384 : (2014) 1 SCC (Civ) 327
66
by the National Commission is enhanced, by a further
lump-sum amount of Rs. 12,00,000 (Rupees Twelve Lakhs).
11.5.6 In conclusion, we pass the following directions to secure the
interest and welfare of Respondent No.1. These directions
are being passed to ensure that the compensation received
is utilized for the welfare of Respondent No.1, to enable him
to acquire suitable education and equip him to become selfreliant.
We direct that the compensation of Rs. 76,00,000/-
awarded to the Respondent No.1- Master Rishabh Sharma
s/o Mrs. Pooja Sharma (in C.A. No. 6619 of 2016), be
utilized in the following manner:
a) Rs. 60,00,000/- (Rupees Sixty Lacs Only) is allocated
exclusively for Respondent No.1- Master Rishabh Sharma
for his education, welfare, and sustenance;
b)Rs. 15,00,000/- (Rupees Fifteen Lacs Only) is allocated to
Mrs. Pooja Sharma, the mother of Master Rishabh Sharma,
as his care-giver, after deduction of an amount of
Rs.5,00,000/- already disbursed to her.;
c) Rs. 1,00,000/- (Rupees One Lac Only) is awarded towards
litigation costs, payable to Mr. Jai Dehadrai, Advocate and
67
Mr. Sidharth Arora, Advocate, who have represented the
Complainants on a pro bono basis (as stated by them) in
this Court.
11.5.7 The amount of Rs. 60,00,000/- awarded to Master Rishabh
Sharma shall be disbursed in the following manner:
A. Rs. 50,00,000/- be deposited in a Five Years’ Post
Office Time Deposit Scheme in the name of Master
Rishabh Sharma with Mrs. Pooja Sharma as his
natural guardian. Let five deposits in multiples of Rs.
10,00,000/- each be made. The deposits shall be
opened in the Post Office Savings Bank Account of
the Supreme Court Post Office, New Delhi. The
account shall be operated by Mrs. Pooja Sharma
under the supervision of the concerned Registrar of
this Court.
The aforesaid five deposits aggregating to
Rs.50,00,000/- will fetch Master Rishabh Sharma an
annual interest income of Rs.3,85,000/, which will
be credited into a Savings Account with the Post
Office. Out of the said sum, Rs.1,50,000/- shall be
invested annually in a 15 Year Public Provident Fund
68
(“PPF”) Account to be opened in the name of Master
Rishabh Sharma with UCO Bank, Supreme Court,
Tilak Marg, New Delhi. These yearly investments,
going by the provisions of the Income Tax Act, 1961,
will be tax free.
After having invested Rs.1,50,000/- every
year in a PPF account, the rest of the yearly income
amounting to Rs.2,35,000/- p.a. (from and out of
Rs.3,85,000/-) which is equivalent to about
Rs.20,000/-per month, shall be utilized by
Respondent No.2- Mrs. Pooja Sharma for the
education and upbringing of Respondent No.1.
B. Rs.4,50,000/- shall be deposited in a Five Year Post
Office Monthly Income Scheme Account (“MIS
Account”) with the Supreme Post Office in the name
of Master Rishabh Sharma so that it will give him
monthly interest of 7.6% p.a., that is to say
Rs.2,850/- per month, which shall be utilized by his
Mrs. Pooja Sharma primarily for the upbringing of
Respondent No.1.
69
C. The balance of Rs. 5,50,000/- from the amount
deposited by the Appellants, shall be invested in a
Five Year Fixed Deposit Account (“FD Account”) to
opened with UCO Bank, Supreme Court, Tilak Marg,
New Delhi in the name of Master Rishabh Sharma.
The interest accruing therefrom may be utilized by
Mrs. Pooja Sharma in such manner as is deemed
appropriate.
D. These investments will ensure an annual income of
approximately Rs. 4,50,000/-. With the investment
of Rs. 1,50,000/- in a PPF Account, which will be tax
free, as the annual income of Rs. 3,00,000/- will be
within the permissible tax exemption limit of Rs.
3,00,000/- plus Rs. 75,000/- (Disability Allowance
under Section 80U of the Income Tax Act,1961).
E. All these deposits on maturity shall be re-invested by
Respondent No.2 – Pooja Sharma with the
concurrence of the concerned Registrar of this Court
on such terms, which will fetch a high rate of
interest, and preserve the corpus for the benefit of
Respondent No.1. At no stage, will the Respondent
70
No.2 be permitted to withdraw any amount from
these deposits without the permission of the
concerned Registrar.
11.5.8 We direct the concerned Registrar of this Court to be
associated with Respondent No.2- the mother of Master
Rishabh Sharma, in giving effect to the directions issued
hereinabove.
12. Accordingly, we allow Civil Appeal No. 9461 of 2019 (Diary
No. 15393 of 2019) filed by the Complainants.
13. Civil Appeal No. 6619 of 2016 filed by the Hospital and the
Doctors is dismissed. The Appellant Nos. 1 to 4 in Civil
Appeal No. 6619 of 2016 are directed to deposit the balance
amount of. Rs. 44,00,000/- in this Court within a further
period of 12 weeks from today.
14. An affidavit of compliance with respect to the deposit of
compensation be filed by the Appellants before this Court.
15. We have been informed by the Registry of this Court that
the amount of Rs. 32,00,000/-, which was deposited by the
Appellants pursuant to Order dated 29.07.2016 of this
Court, and kept in a Fixed Deposit with UCO Bank, has
accrued an interest of about Rs. 3,80,954/-. We direct that
71
this interest amount be made over to Mrs. Pooja Sharma,
the mother and care-giver, for the welfare and education of
Master Rishabh Sharma, for the current year.
16. The original medical records be returned by the Registry to
the counsel for the Appellant No.1-Hospital.
Pending Applications, if any, are accordingly disposed of.
Ordered accordingly.
…..……...........................J.
(UDAY UMESH LALIT)
..….……..........................J.
(INDU MALHOTRA)
New Delhi
December 16, 2019.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal No. 6619 Of 2016
MAHARAJA AGRASEN
HOSPITAL & ORS. …APPELLANTS
Versus
MASTER RISHABH SHARMA & ORS. …RESPONDENTS
WITH
Civil Appeal No. 9461 Of 2019
(Arising out of Diary No. 15393 of 2019)
POOJA SHARMA & ORS. …APPELLANTS
Versus
MAHARAJA AGRASEN
HOSPITAL & ORS. …RESPONDENTS
J U D G M E N T
INDU MALHOTRA, J.
1. The present Civil Appeals arise out of a complaint of medical
negligence made by Respondent Nos. 1 to 3 – the
Complainants against the Appellant No.1 – Hospital and
Appellant Nos. 2 to 4 – the Paediatricians and
Ophthalmologist Doctors working with the Appellant No.1-
Hospital, and Respondent No.4- the Gynaecologist, before
2
the National Consumer Disputes Redressal Commission
(hereinafter referred to as the “National Commission”).
2. The National Commission vide Judgment and Order dated
10.05.2016 (“impugned Judgment”) allowed the consumer
complaint, and held the Appellant No.1 – Hospital, and
Appellant Nos. 2 to 4 – Doctors guilty of medical negligence,
since they failed to carry out the mandatory check up of
Retinopathy of Prematurity (“ROP”) on Respondent No.1-
Master Rishabh, who was a pre-term baby, which led to his
total blindness. In so far as Respondent No.4- Dr. Rama
Sharma, the Gynaecologist is concerned, who had delivered
the baby, she was exonerated by the National Commission,
and has not been pressed before this Court.
3. Aggrieved by the impugned Judgment passed by the
National Commission, the Appellant No.1- Maharaja
Agrasen Hospital, a super speciality hospital, Appellant No.2
-Dr. G.S. Kochhar and Appellant No.3- Dr. Naveen Jain, the
Consultant Paediatricians working for the Appellant No.1 –
Hospital, and Appellant No.4-Dr. S.N. Jha, the Senior
Consultant Ophthalmologist working for the Appellant No.1-
Hospital have filed Civil Appeal No. 6619 of 2016.
3
4. Respondent No.1-Master Rishab Sharma, is the childpatient, who was Complainant No.1 before the National
Commission, and was represented by his widowed mother
Pooja Sharma – Respondent No.2/the Complainant No.2.
Respondent No.3 is the elder brother of Respondent No.1.
The Complainants have filed Civil Appeal No. 9461 of
2019 (Diary No. 15393 of 2019) before this Court for further
enhancement of the compensation awarded by the National
Commission.
5. The background facts in which the present Civil Appeals
have been filed are as under:-
5.1 Respondent No.2-Pooja Sharma – the Complainant
No.2 was under the ante-natal care of Respondent
No.4-Dr. Rama Sharma at Sharma Medical Centre
since September 2005.
5.2 On 02.04.2005, at about 5.30 p.m., the Respondent
No.2 had to undergo a caesarean section in view of the
condition of Placenta Previa. The baby-Respondent
No.1 was born pre-term at 32 weeks’ gestation, with a
weight of 1.49 kg at the time of birth.
4
5.3 On the same day, at about 8:30 p.m., Respondent
No.4- Dr. Rama Sharma, the Gynaecologist referred
the case for intensive care to Maharaja Agrasen
Hospital- Appellant No.1.
At the time of admission, the general condition of
the baby was poor, and was diagnosed as “32 weeks
pre-term AGA with HMD”. The baby was treated in the
Neo-natal ICU of the Paediatrics Unit and was put on
ventilatory support, and Surfactant injections were
administered gradually.
5.4 The Respondent No.1-baby stayed in the Appellant
No.1-Hospital for almost 4 weeks, and was discharged
on 29.04.2005, which was 27 days after birth.
The Discharge Slip issued by the Appellant No.1-
Hospital to the Complainants reads as follows:
“ Maharaja Agrasen Hospital
Punjabi Bagh, New Delhi-110026, Ph. 25106645 to 54
DISCHARGE SLIP
Hospital No. 505404. Ward: NICU Deptt./Unit: Paed-III.
Name: B/O. Pooja Sharma Age/Sex NB/M.
Date of Admission: 02.04.2005 at 8.30 p.m.
Date of Discharge: 29.04.2005
Diagnosis: PT (32) with HMD with Neonatal Hyperbil with B/L
Pneumothorax Fungal Septicemia.
Condition at time of discharge: Satisfactory.
Consultants: Dr. G.S.Kochar /Dr. N. Jain
5
DOB: 02.04.2005.
Sex: Male.
Birth weight: 1.49 kg.
Weight at discharge: 1.56 kg.
Mode: Emergency LSCS for placenta previa.
FOLLOW UP ADVICE:
• Syp. Taxim O 1 ml BD x 5 d.
• Syp. Osteocalcium TDS.
• Drops Visyneral Z 0.3 ml OD.
• Drop Vitcofol 5 drops OD.
• Drop Evion 5 drops OD
• To review in Pead. OPD on Wed / Sat 4 p.m.
• Refer back to Rama Nursing Home (Sharma Medical
Centre)
_______________ ______-sd-____________
Consultant Medical Officer ”
5.5 There is no advice to the Complainants to have the
ROP test carried out on the baby, who was born
prematurely, in the Discharge Slip. Post discharge, the
Respondent No.2-Complainant brought the baby for a
follow up check-up on 04.05.2005 to the Paediatrics
Unit of the General OPD of the Appellant No.1-
Hospital, when the baby was 4 weeks and 4 days old.
The baby was examined by the Consultant
Paediatricians - Dr. G.S. Kochhar and Dr. Naveen
Jain/ Appellants No. 2 and 3.
As per the medical records, the Respondent No.1-
baby was found to be stable, and Respondent No.2-
6
Complainant was advised to continue breast feeding
along with supplements.
It is pertinent to note that there was no advice or
recommendation for ROP check-up on this date in the
Medical Records produced by the Appellant No.1 –
Hospital.
5.6 On 13.07.2005, the Respondent No.2-Complainant
brought the baby for a 2nd follow-up visit when he was
over 3 months old to the Paediatrics Unit of the
General OPD of the Appellant No.1-Hospital. The
Respondent No.1-baby was examined by Dr. Manoj on
behalf of Dr. G.S. Kochhar. Dr. Manoj advised the
Complainants for the BERA scan/test to be conducted.
It is pertinent to note that there was no advice for
ROP check-up given even on this visit.
5.7 Respondent No.2-Complainant submits that sometime
in November 2005, she noticed abnormal visual
responses in the Respondent No.1 – baby. The
Complainant asked for the medical records of the baby
to have his follow up treatment done.
7
The medical records were, however, not made
available by Appellant No.1-Hospital.
5.8 On 23.11.2005, Respondent No.2 – Complainant took
the baby to Nayantara Eye Clinic, Delhi where an
ultrasound (B. Scan) was conducted. It was advised
that eye-ointment and eye-drops be administered to
the baby.
5.9 On 03.12.2005, the baby was taken by Respondent
No.2- Complainant to Shroff Charity Eye Hospital,
Delhi for further examination where the ultrasound (B.
Scan) was conducted. The Shroff Charity Eye Hospital
diagnosed that the baby had ROP Stage 5 in both eyes,
which is a case of total retinal detachment.
5.10 Respondent No.2-Complainant approached
Respondent No.4- Dr Rama Sharma, the Gynaecologist
of Sharma Medical Centre to explain how the medical
condition of Respondent No.1-baby had remained undiagnosed. Dr. Rama Sharma shifted the blame to the
Appellants.
5.11 On 07.12.2005, Respondent No.2-Complainant took
the baby to the Appellant No.1-Hospital in the Private
8
OPD Consultation. Dr. Sanjay Bhavan,
Ophthalmologist examined Respondent No.1-baby. The
case was referred to Dr. Lingam Gopal of Shankara
Netralaya at Chennai for an urgent appointment.
5.12 On 07.01.2006, the Respondent No.1-baby was taken
by his mother- Respondent No.2-Complainant to Dr.
Rajendra Prasad Centre for Ophthalmic Sciences at
AIIMS, New Delhi for OPD Consultation. After
examination, it was confirmed that it was a case of
ROP Stage 5.
5.13 On 24.02.2007, the Respondent No.2-Complainant
was constrained to issue a legal notice to the Appellant
No.1-Hospital to provide the entire in-patient medical
records of the baby in compliance with Regulation
1.3.2 of the Indian Medical Council (Professional
Conduct, Etiquettes and Ethics) Regulations, 2002
(“IMC Regulations”).
5.14 The Appellant Nos. 1 to 3 failed to provide the inpatient medical records to the Complainant despite the
issuance of legal notice.
9
5.15 The Respondent No.2-Complainant then filed a
complaint with the Delhi Medical Council for a
direction to the Appellant No.1-Hospital to provide the
complete in-patient medical records pertaining to the
baby.
5.16 Eventually, the Appellant No.1-Hospital provided a
copy of the medical records of the baby alongwith the
Case Summary on 14.06.2007 after more than 2 years
of discharge from the Appellant No.1-Hospital.
5.17 The Respondent No.2-Complainant contends that
when she received these records, she was shocked to
find that the medical records mentioned an alleged
ROP check-up was conducted on 26.04.2005 by
Appellant No.4-Dr. S.N. Jha. The Respondent No.2-
Complainant contends that no ROP examination was
conducted by Appellant No.4-Dr. S.N. Jha.
5.18 On 04.08.2007, the Respondent No.2-Complainant
addressed a letter to the Medical Superintendent of
Appellant No.1- Hospital. The relevant extract of the
said letter is reproduced hereinbelow for ready
reference:
10
“Under the above enclosure we have received photocopies of some
Medical Record (uncertified) along with a case summary dated 13-
06-2007.
The said summary states that on 26-04-2007 ROP examination on
our baby was conducted in the Ophthalmological unit of your
hospital and review examination after two weeks was also advised.
We are rather intrigued by this observation as it does not find
mention anywhere in the Discharge Summary nor is there any follow
up advise.
Since both of us do not recollect any such examination conducted in
our presence or review advise and the said medical record is also
totally silent about it, kindly provide us with the entire record of the
Ophthalmological unit, name of the Paediatric Ophthalmologist who
had conducted the ROP examination and his written report dated
26-04-2006.”
[emphasis supplied]
5.19 Appellant No.1- Hospital replied to the letter on
24.08.2007, wherein it was stated that:
“As per standard neonatal protocol, ophthalmological check-up was
requested on 25-04-2005 to rule out ROP.
The ophthalmological examination was done in the Nursery on 26-
04-2005 morning by Dr. S. N. Jha, Senior Consultant
Ophthalmologist. The written report of the Ophthalmological unit is
stated on page no.102 of the case record.”
[emphasis supplied]
5.20 On 19.11.2007, Respondent Nos. 1 to 3 filed a
Consumer Complaint under Section 21 (a)(i) of the
Consumer Protection Act, 1986 before the National
Commission [Consumer Case No. 119 Of 2007]
claiming compensation of Rs. 1,30,25,000/- alleging
medical negligence and deficiency in service on the
11
part of Appellant Nos. 1 to 4, and Respondent No.4-
the Gynaecologist, for compensation for the permanent
physical disability, mental agony, and social stigma,
deprivation of normal human life, companionship,
torture and harassment etc.
5.21 The Delhi Medical Council vide order dated 14.12.2007
issued a warning to the Appellant No.1-Hospital for the
delay in supplying the medical records of the
Respondent No.1-baby to the Complainant.
5.22 The National Commission vide Order dated 29.02.2012
directed the Medical Board, AIIMS to give an expert
opinion in the matter.
5.23 The Medical Board of AIIMS submitted its Report dated
11.05.2012 to the National Commission. The Report
states that as per standard guidelines (National
Neonatology Forum), new born babies who are born at
32 weeks’ gestation or less, should have their eyes
examined at 3-4 weeks of age and more frequent
check-ups to be done thereafter. Appellant No.4- Dr.
S.N. Jha examined the baby at 24 days of age in
accordance with established protocol. If ROP screening
12
does not reveal any ROP, then repeat examination
should be performed after 2 weeks. The Report goes on
to say that after discharge, the baby was brought twice
to the General OPD of the Appellant No.1- Hospital.
There is no record to show that the baby was brought
after 2 weeks of discharge to the Paediatrics OPD clinic
when subsequent progression could been assessed and
treated on time.
6. The National Commission vide its Judgment and Order
dated 10.05.2016 (bench comprising of Presiding
Member J.M. Malik J. and Dr. S.M. Kantikar, a
qualified doctor) held as under:
6.1 The National Commission was not convinced that
the ROP screening was done by O.P. No.5/Appellant
No.4 on Respondent No.1-baby. The progress sheet
was devoid of any details about the ROP
examination, the method and instruments used,
drugs (midrates/tropicamide)/ anaesthesia used
during ROP testing. The Ophthalmologist has not
mentioned any details of the dilation of the pupils,
and the findings by indirect ophthalmoscope, and
13
the intra-ocular or extra retinal findings. The
standard ROP screening protocol was not followed.
The Nurses’ Daily Records from 25.04.2005 to
27.04.2005 does not show that any ROP
examination was done by O.P. No. 5/Appellant No.
4.
6.2 The AIIMS Report did not comment about the details
of the ROP screening and the follow-up findings.
6.3 The National Commission held that the sequence of
events leading to ROP usually takes about 4 to 5
weeks, except in a small sub-set of premature
infants who develop rush disease in 2 to 3 weeks.
The routine screenings should begin at no later than
4 weeks after birth, and possibly even earlier for
infants at higher risk (2 to 3 weeks). It is strongly
recommended that one session of retinal screening
be carried before Day 30 of the life of any premature
baby. The examination should be done with the
dilation of the pupil with Tropicamide 0.5% to 1%
with Phenylapinephrine 2.5%.
14
6.4 The National Commission came to the conclusion
that O.P. No.5/Appellant No.4 did not conduct the
ROP screening on the baby. ROP screening is a
team-work of the Paediatrician, Opthalmologist and
the NICU nurse. There is no medical documentation
of the ROP screening procedural details. The O.P.
No. 5 should have performed the retinal
examination with binocular indirect opthalmoscope
on dilation of the pupil with scleral depression to
ascertain avascular zone at the periphery of the
retina. The National Commission found that nothing
was forthcoming from Page 102 of the medical
records. It appears to be a bare visual examination
done by O.P. No. 5 in haste to cover up the case.
The National Commission was of the
considered view that neither the ROP screening was
performed, nor was any advice for follow up of ROP
given to the Respondent No.2-Complainant/mother.
6.5 The National Commission held that the Respondent
No.1-Master Rishabh had been rendered blind for
life, which could never really be compensated in
15
monetary terms. The baby had lost his father during
the pendency of proceedings in 2013. The
Respondent No.2-Complainant had been pursuing
the consumer complaint single-handedly for almost
a decade.
6.6 The National Commission awarded an amount of Rs.
53,00,000/- to the Respondent No.1-baby by
applying the average inflationary principle at a
conservative rate of 1% p.a., keeping in mind the
fluctuations over the next 59 years. The National
Commission awarded an amount of Rs. 10,00,000/-
to the Respondent No.2-Complainant/mother who
would have to take care of the blind child
throughout her life. A further amount of Rs.
1,00,000/- was awarded towards costs of litigation.
The National Commission held O.P. Nos. 2 to 5/
Appellant Nos. 1 to 4 to be jointly and severally
liable to pay the total amount of Rs. 64,00,000/-
within 2 months of the Order. The entire amount
would carry interest at the rate of 9% p.a.
16
Out of the total compensation awarded, Rs.
50,00,000/- would be kept in a Fixed Deposit with a
nationalised bank till Respondent No.1 attained the
age of majority. The periodic interest on the deposit
would be paid to the Respondent No.2-
Complainant/ mother till the child attained the age
of majority. The remaining amount of Rs.
14,00,000/- would be released to the Respondent
No.2-Complainant.
7. Aggrieved by the impugned Judgment passed by the
National Commission, C.A. No. 6619 of 2016 was filed by
the Hospital and the Doctors before this Court. The
Complainants have filed Civil Appeal No. 9461 of 2019
(Diary No. 15393 of 2019) before this Court for
enhancement of compensation.
This Court vide interim Order dated 29.07.2016
ordered stay of the operation of the impugned Judgment,
subject to the Appellant No.1-Hospital depositing 50% of the
amount awarded by the National Commission in this Court
within 6 weeks.
17
On 07.09.2016, the Appellant No.1-Hospital deposited
an amount of Rs. 32,00,000/- in this Court. This Court vide
Order dated 7.11.2016, directed the amount to be kept in a
Fixed Deposit with UCO Bank, which was renewed from
time to time. The fixed deposit is due to mature on
17.02.2020.
8. We have heard the learned Counsel for all the parties and
perused the original Medical Records, pleadings and written
submissions filed by the parties.
9. The learned counsel for the Appellants viz. the Hospital and
Doctors inter alia submitted that:
9.1 Respondent No.1-baby was pre-term (32 weeks) with
signs of HMD, and was admitted in Appellant No.1-
Hospital on 02.04.2005 in a critical condition with
little chance of survival. The baby was admitted in the
neo-natal ICU, and had to be immediately placed on
ventilatory support for 10 days. As per standard
protocol, regular investigations and Arterial Blood Gas
(ABG) analysis were performed. Blood component
therapy was given. The critical condition of the baby
and possible neuro-development, visual and hearing
18
sequel was informed to the parents. The baby was
given utmost care and attention by the Doctors of the
Appellant No.1-Hospital.
9.2 As per protocol, ophthalmological examination was
advised on 25.04.2005 to rule out ROP, as recorded at
Page 100 of the medical records. Appellant No.4-Dr.
S.N. Jha, the Senior Ophthalmologist conducted the
ROP test on 26.04.2005, who found no ROP in
Respondent No.1-baby, as recorded by Appellant No.4
in his handwriting at page 102 of the medical records.
It was submitted that the Appellant No.4 had advised a
further review/check-up after 2 weeks in the speciality
OPD on Wednesay/Saturday between 4 p.m. to 6 p.m.
The parents of Respondent No.1-baby were explained
all the problems which may develop in a premature
baby.
9.3 As per the Discharge Summary at Page 109 of the
medical records, the Complainants were advised to
bring the Respondent No.1-baby for a ROP and BERA
check-up to the speciality OPD on
Wednesday/Saturday at 4 pm.
19
9.4 The Respondent No.2-Complainant brought the baby
to the General OPD of Appellant No.1- Hospital on
04.05.2005 after 8 days of the first ROP check-up, and
not after 2 weeks as advised. Thereafter, the baby was
brought on 13.07.2005, which was after 2 months
again to the General OPD.
9.5 The Appellants relied on the Report of the Medical
Board constituted by AIIMS, which had vide their
Report dated 11.05.2012 held that the baby was not
brought to the Paediatrics OPD Clinic on Wednesdays
or Saturdays at 4 P.M. after two weeks of discharge,
when subsequent progression of ROP could have been
assessed and treated on time.
9.6 The Appellant No.4/O.P. No.5 - Dr. S.N. Jha, a Senior
Ophthalmologist was engaged with the Appellant No.1-
Hospital from 1997 to 2010. It was submitted on his
behalf that on 25.04.2005, the Paediatrics Dept. of the
Appellant No.1-Hospital had requisitioned him to
perform the ROP examination. The Appellant No.4
submits that the ROP was duly conducted by him on
26.04.2005. His finding is recorded at Page 102 of the
20
medical records, wherein he has recorded that he did
not find any evidence of ROP at that stage. It was
further submitted that it was not required to record
the method of dilation of the pupil and use of indirect
ophthalmoscope. The standard medical literature
establishes that ROP manifests itself after 4 weeks of
post-natal age. In view thereof, the finding of Appellant
No.4, who examined the baby only on 26.04.2005 i.e.
when the baby was 24 days old, there was no evidence
of ROP, cannot be faulted.
9.7 It was further submitted that the only requirement for
conducting an ROP examination is a chemical solution
of Tropicamide and Phenylephrine to dilate the eyes,
which was available in the nursery, and an indirect
ophthalmoscope, which is available with all
ophthalmologists. who have specialised in the care of
retina, and are competent to carry ROP examination. It
was submitted that the Appellant No.4 was not
required to record the procedure for conducting the
ROP examination, which is merely the retinal
21
examination of the baby by use of an indirect
ophthalmoscope after dilation of the pupils.
9.8 Appellant No.4 - Dr. S.N. Jha was not consulted on the
two subsequent visits by the Respondent No.2-
Complainant with the baby on 04.05.2005 and
13.07.2005 in the Ophthalmology department, even
though he would have been available in the speciality
OPD on Wednesdays/Saturdays at 4 P.M.
10. The learned counsel for the Complainants –
Respondent Nos. 1 to 3 (Appellant Nos. 1 to 3 in Civil Appeal
No. 9461 of 2019/Diary No. 15393 of 2019), inter alia
submitted that the Respondent No.1-baby has become
permanently blind on account of the gross medical
negligence by the Hospital, and the three specialist doctors
i.e two consultant Paediatricians, and the Ophthalmologist,
for the following reasons:
10.1 The Appellant Nos.1 to 4 did not at any stage conduct
the ROP examination of the baby, who was a
premature baby, nor was the family ever informed
about the high risk of ROP in a premature baby, and
the necessity for regular check-ups.
22
10.2 The Appellant No.1-Hospital had deliberately withheld
the medical records for over two years after discharge.
At the time of discharge on 29.04.2005, the
Complainants were provided with a Discharge Slip,
which did not disclose any instructions advising that
the infant be brought for ROP examination (the
Discharge Slip in Para 5.4 above).
In this Discharge Slip, there is no advice of ROP
having been conducted, or follow-up of ROP, nor was
the risk of ROP explained by the Appellant Nos. 2 and
3 to the Respondent No.2-Complainant.
10.3 The Complainants have strongly contended that parts
of the medical records, which were provided after 2
years in 2007, had been fabricated and interpolated as
an afterthought to escape liability.
It was submitted that a bare perusal of the noting
dated 26.04.2005 made in the medical record by
Appellant No.4- the Ophthalmologist, shows that is
merely a scribble, and is illegible. The Complainants
have strongly refuted the case of the Appellants that
23
the ROP was conducted by Appellant No.4 on
26.04.2005.
The Complainants have supported their
submission on the basis of :(i) the progress sheets,
which contain no details of the ROP examination; (ii)
there is no mention of the ROP examination in the
Nurses’ Daily Record; (iii) ROP exam is conducted with
the help of dilation by using Cyclopentolate (0.5%) and
Phenylephrine (2.5%) drops to be applied 2 to 3 times,
about 10-15 minutes apart. There is no record with
respect to the administration of the these medicines to
the baby; (iv) there is no mention of the ROP test in the
Discharge Slip of 29.04.2005;
10.4 The Complainants contended that if the standard
protocol had been carried out by the Doctors, the ROP
would have been detected at an early stage, and could
have been cured, since it is medically known to be
reversible at the early stages.
On account of the negligence of the Appellant
Nos. 1 to 4, the ROP was discovered only at Stage 5, by
the Shroff Charity Eye Hospital, when the baby was 8
24
months old. By this time, the ROP became irreversible,
and resulted in total blindness of the Respondent No.1-
baby.
10.5 It was further urged that the quantum of compensation
awarded by the National Commission was grossly
inadequate and insufficient. The National Commission
failed to take into account variables such as the
additional educational expenses in special schools,
transportation costs, costs of purchasing, maintaining
and upgrading Visual Aid/Assistive Devices, costs of
permanent nursing/attendant care and miscellaneous
medical expenses. It was further contended that the
average rate of inflation taken by the National
Commission i.e. a conservative rate of 1 % per annum
for the next 59 years, was grossly undervalued. The
Complainants sought enhancement of the
compensation to the extent of Rs. 9,87,84,000/-.
11. Discussion and Analysis
11.1 Inordinate Delay in Supply of Medical Records
We find that there was an inordinate delay of over 2
years in making the Medical Records of Respondent No.1-
25
Master Rishabh available to the Respondent No.2-
Complainant. Regulation 1.3.2 of the IMC Regulations
casts a statutory obligation upon every doctor/hospital to
provide medical records within 72 hours of the request
being made by the patient.
11.1.1 The Medical Council of India has framed the IMC
Regulations with the previous approval of the Central
Government, in exercise of the powers conferred by
Section 20A read with Section 33(m) of the Indian
Medical Council Act, 1956. The IMC Regulations came
into force on their publication in the Gazette of India on
06.04.2002, and have statutory force.
11.1.2 Regulation 1.3.2 of the Indian Medical Council
(Professional Conduct, Etiquettes and Ethics)
Regulations, 2002 provides as under:
“1.3 Maintenance of medical records:
1.3.1 Every physician shall maintain the medical records
pertaining to his /her indoor patients for a period of 3 years
from the date of commencement of the treatment in a
standard proforma laid down by the Medical Council of
India and attached as Appendix 3.
1.3.2. If any request is made for medical records either by
the patients / authorised attendant or legal authorities
involved, the same may be duly acknowledged and
documents shall be issued within the period of 72 hours.
26
1.3.3 A Registered medical practitioner shall maintain a
Register of Medical Certificates giving full details of
certificates issued. When issuing a medical certificate he /
she shall always enter the identification marks of the
patient and keep a copy of the certificate. He / She shall not
omit to record the signature and/or thumb mark, address
and at least one identification mark of the patient on the
medical certificates or report. The medical certificate shall
be prepared as in Appendix 2.
1.3.4 Efforts shall be made to computerize medical records
for quick retrieval.
[emphasis supplied]
As per Regulation 7, if the doctor refuses or fails to
provide the medical records within 72 hours when the
patient or his/her authorised representative makes a
request as per the Regulation 1.3.2, the said act of
commission or omission would constitute professional
misconduct rendering him/her liable for disciplinary action
and punishment under Regulation 8.
Regulations 7 and 8 provide as follows:
“7. MISCONDUCT
The following acts of commission or omission on the part of a
physician shall constitute professional misconduct rendering
him/her liable for disciplinary action
7.1 Violation of the Regulations: If he/she commits any
violation of these Regulations.
7.2 If he/she does not maintain the medical records of
his/her indoor patients for a period of three years as per
regulation 1.3 and refuses to provide the same within 72
hours when the patient or his/her authorised representative
makes a request for it as per the regulation 1.3.2.
27
8. PUNISHMENT AND DISCIPLINARY ACTION
8.1 It must be clearly understood that the instances of
offences and of Professional misconduct which are given
above do not constitute and are not intended to constitute a
complete list of the infamous acts which calls for disciplinary
action, and that by issuing this notice the Medical Council of
India and or State Medical Councils are in no way precluded
from considering and dealing with any other form of
professional misconduct on the part of a registered
practitioner. Circumstances may and do arise from time to
time in relation to which there may occur questions of
professional misconduct which do not come within any of
these categories. Every care should be taken that the code is
not violated in letter or spirit. In such instances as in all
others, the Medical Council of India and/or State Medical
Councils have to consider and decide upon the facts brought
before the Medical Council of India and/or State Medical
Councils.
8.2 It is made clear that any complaint with regard to
professional misconduct can be brought before the
appropriate Medical Council for Disciplinary action. Upon
receipt of any complaint of professional misconduct, the
appropriate Medical Council would hold an enquiry and give
opportunity to the registered medical practitioner to be heard
in person or by pleader. If the medical practitioner is found to
be guilty of committing professional misconduct, the
appropriate Medical Council may award such punishment as
deemed necessary or may direct the removal altogether or for
a specified period, from the register of the name of the
delinquent registered practitioner. Deletion from the Register
shall be widely publicized in local press as well as in the
publications of different Medical Associations/
Societies/Bodies.
8.3 In case the punishment of removal from the register is for
a limited period, the appropriate Council may also direct that
the name so removed shall be restored in the register after
the expiry of the period for which the name was ordered to be
removed.
8.4 Decision on complaint against delinquent physician shall
be taken within a time limit of 6 months.
8.5 During the pendency of the complaint the appropriate
Council may restrain the physician from performing the
procedure or practice which is under scrutiny.
28
8.6 Professional incompetence shall be judged by peer group
as per guidelines prescribed by Medical Council of India.”
11.1.3 The IMC Regulations framed by the Medical Council of
India are binding on all medical professionals, who are
under a statutory obligation to provide medical records to
the patients or their attendants. All hospitals, whether
Government or private are liable to maintain
the medical records, and provide the same to patient or
their attendants within 72 hours of the request.
11.1.4 The Delhi Medical Council vide Circular No.
DMC/DHS/F.5/2/2009 dated 15.05.2009 casts a
statutory obligation on all registered medical practitioners
and hospitals/nursing homes to strictly adhere to
Regulation 1.3.2 of the IMC Regulations. The failure to
comply with the same would constitute professional
misconduct and entail disciplinary action.
11.1.5 This Court in Federation of Obstetrics & Gynaecological
Societies of India v. Union of India1 held that “considering
the nature of services rendered by medical professionals,
proper maintenance of records is an integral part of the
medical services.”
1 (2019) 6 SCC 283
29
11.1.6 The Respondent No.2-Complainant submitted that she
had made several requests for being provided the inpatient records for further evaluation/examination of the
baby, which was not made available to her for over 2
years after his discharge in April 2005 from the Appellant
No.1- Hospital. Respondent No.2-Complainant had to run
from one hospital to another so as to ascertain why her
son had abnormal visual responses. Despite repeated
requests, the Medical Records were withheld by the
Hospital. The Respondent No.2-Complainant had a legal
notice issued on 24.02.2007 to the Appellant No.1-
Hospital requesting for the entire in-patient medical
record of her child, and made a complaint to the Delhi
Medical Council. The Appellant No.1 -Hospital eventually
provided the medical record on 14.06.2007.
11.1.7 The Delhi Medical Council vide Order dated
14.12.2007 issued a warning to the Appellant No.1-
Hospital for the delay in supplying the medical records of
Respondent No.1 to the Complainant.
We find that withholding the medical records of
Respondent No.1, who was a premature baby, for a
30
period of over 2 years, would constitute grave
professional misconduct under Regulation 7, apart from
being a gross deficiency in service on the part of the
Appellant No.1-Hospital and its management.
11.2 Failure to diagnose Retinopathy of Prematurity (ROP)
Retinopathy of Prematurity (ROP) is one of the
major emerging causes of childhood blindness. A
premature baby is not born with ROP. At the time of
birth, particularly in the case of premature babies, the
retina is immature, which is natural at this stage. It is
the post-natal developments in the retinal vessels which
could lead to ROP.
11.2.1 As per medical literature, all infants with a birth
weight of less than 1500 grams, or gestational age of
less than 32 weeks, are required to be mandatorily
screened for ROP, which usually takes about 4 to 5
weeks to be diagnosed. The routine screening should
begin no later than 4 weeks after birth, and possibly
even earlier for infants at higher risk (2 to 3 weeks).
31
The standard of care is to be judged in the light of
the protocols and standard procedures prevailing on
the date of birth, and not on the date of trial. 2
11.2.2 In Programme Planning and Screening Strategy in
Retinopathy of Prematurity3, published in March 2003
co-authored by Drs. Subhadra Jalali, MS; Raj Anand,
MS; Harsh Kumar, MD; Mangat R Dogra, MS;
Rajvardhan Azad, MD,FRCS (Ed); Lingam Gopal, MS
have opined that:
“There are several compelling reasons to have a
screening programme for ROP. Firstly, the premature child
is not born with ROP and retinal disease is not present at
birth. Each prematurely born child has a potential for
normal vision, even if the retina is immature at birth.
Screening for ROP aims to identify those infants who have
reached or have the potential to reach threshold ROP,
which if untreated, may cause blindness or visual
impairment. This has medico-legal implications. There are
indefensible legal repercussions should an infant develop
ROP and retinal detachment, but had not received eye
examination. Secondly, the grief and the personal tragedy
for the family is tremendous, besides the economic burden
of such childhood blindness. The aim of screening
premature babies for ROP is to detect all treatable
2 Nizam's Institute of Medical Sciences v. Prasanth S. Dhananka, (2009) 6 SCC 1; Jacob
Mathew v. State of Punjab (2005) 6 SCC 1 : 2005 SCC (Cri) 1369
3 Subhadra Jalali, MS; Raj Anand, MS; Harsh Kumar, MD; Mangat R Dogra, MS;
Rajvardhan Azad, MD,FRCS (Ed); Lingam Gopal, MS, Programme Planning and Screening
Strategy in Retinopathy of Prematurity, Indian J Ophthalmol 2003 (March 2003), Vol. 51,
Pages 89-99
32
neonates, with minimal expense of time and resources.
This also aims at not screening those babies who are
unlikely to get a severe form of ROP. Early recognition of
ROP by screening provides an opportunity for effective
treatment…. The criteria for screening babies are based on
two critical factors – the birth weight and the gestational
age.”
[emphasis supplied]
A well organised screening strategy and timely
intervention can to a large extent prevent blindness
due to ROP. Extensive clinical trials and publications4
have established that among other factors, gestation
period and low birth weight are critical in the
pathophysiology of ROP. If detected early and treated
with peripheral retinal cryopexy or laser, ROP
blindness can be prevented to some extent.5 Once the
4 Palmer EA, Flynn JT, Hardy RJ, Phleps DL, Phillips CL, Schaffer DB, Incidence and early
course of retinopathy of prematurity. Ophthalmology 1991;98:1628-40; Fielder AR, Shaw
DF, Robinson J, Ng YK, Natural history of retinopathy of prematurity: A prospective study.
Eye 1992;6:233-42; STOP-ROP Multicentre Study Group. Supplemental therapeutic
oxygen for prethreshold retinopathy of prematurity (STOP-ROP), a randomised controlled
trial: Primary outcomes. Paediatrics 2000;150:295-10. Cryotherapy for Retinopathy of
Prematurity Cooperative Group. Multicentre trial of cryotherapy for retinopathy of
prematurity-Three-month outcome. Arch Ophthalmol 1990;108:195-40.
5 Cryotherapy for Retinopathy of Prematurity Cooperative Group. Multicentre trial of
cryotherapy for retinopathy of prematurity-Three-month outcome, Arch Ophthalmol
1990;108:195-40 ; Cryotherapy for Retinopathy of Prematurity Cooperative Group.
Multicentre trial of cryotherapy for retinopathy of prematurity-3¹⁄₂ years outcome for both
structure and function, Arch Ophthalmol 1993;111:339-44. Tsisis T, Tasman W, Mcnamara
JA, Brown G, Vander J. Diode laser photocoagulation for retinopathy of prematurity, Trans
Am Ophthal Soc 1997;95:231-36.; Despande DA, Chaturvedi M, Gopal L, Ramachandram S,
Shanmugasundaram R. Treatment of threshold retinopathy of prematurity, Indian J
Ophthalmol 1998;46:15 19.
33
case crosses Stage 3, in very few cases can the sight be
saved even by extensive vitreoretinal surgery.6
11.2.3 This Court considered this issue in a similar case in V.
Krishnakumar v. State of Tamil Nadu7. In that case, a
premature female baby was born in the 29th week of
pregnancy. The infant weighed only 1.25 kgs at birth.
The doctors failed to examine the baby for ROP, or
advise the parents that the baby was required to be
seen by a paediatric ophthalmologist since there was a
possibility of occurrence of ROP, so as to avert
permanent blindness. The discharge summary neither
disclosed a warning to the infant's parents of the
possibility that the infant might develop ROP for which
certain precautions must be taken, nor any signs that
the doctors were themselves cautious of the dangers of
development of ROP. The doctors attempted to cover
up their gross negligence of not having examined the
infant for the onset of ROP, which is a standard
precaution for a well-known condition in such a case.
6 Cherry TA, Lambert SR, Capone-A Jr. Electroretinographic findings in stage V retinopathy
of prematurity after retinal reattachment, Retina 1995;15:21-24; Noorily SW, Small K, Juan
E de, Machemar R. Scleral bucking surgery for stage 4B retinopathy of prematurity,
Ophthalmology 1992;99:263-68.
7 (2015) 9 SCC 388 : (2015) 4 SCC (Civ) 546
34
This Court after reviewing and analysing the
medical literature on ROP, observed that the problem
occurs in infants who are prematurely born, and who
have been administered oxygen and blood transfusion
upon birth. If detected during early stages, it can be
prevented. In para 4 of the judgment, this Court held
that:
“4. ….It is said that prematurity is one of the most
common causes of blindness and is caused by an initial
constriction and then rapid growth of blood vessels in the
retina. When the blood vessels leak, they cause scarring.
These scars can later shrink and pull on the retina,
sometimes detaching it. The disease advances in severity
through five stages — 1, 2, 3, 4 and 5 (5 being the terminal
stage). Medical literature suggests that Stage 3 can be
treated by Laser or Cryotherapy treatment in order to
eliminate the abnormal vessels. Even in Stage 4, in some
cases, the central retina or macula remains intact thereby
keeping intact the central vision. When the disease is
allowed to progress to Stage 5, there is a total detachment
and the retina becomes funnel shaped leading to
blindness. There is ample medical literature on the subject.
It is, however, not necessary to refer all of it. Some
material relevant to the need for check-up for ROP for an
infant is:
“All infants with a birth weight less than 1500 gm or
gestational age less than 32 weeks are required to be
screened for ROP.” [ AIIMS Report dated 21-8-2007]
35
5. It is undisputed that the relationship of birth weight and
gestational age to ROP as reproduced in NCDRC's order is
as follows:
“Most ROP is seen in very low birth weight infants, and the
incidence is inversely related to birth weight and
gestational age. About 70-80% of infants with birth weight
less than 1000 gm show acute changes, whereas above
1500 gm birth weight the frequency falls to less than
10%.”
6. …. It is further observed that ROP is a visually
devastative disease that often can be treated successfully
if it is diagnosed in time.”
[emphasis supplied]
This Court relied upon a Report dated 21.08.2007
of the All India Institute of Medical Sciences, New Delhi
comprising of five members, of which, four were
ophthalmological specialists. The Board opined as under:
“A premature infant is not born with Retinopathy of
Prematurity (ROP), the retina though immature is normal
for this age. The ROP usually starts developing 2-4 weeks
after birth when it is mandatory to do the first screening of
the child. The current guidelines are to examine and screen
the babies with birth weight<1500 gm and <32 weeks
gestational age, starting at 31 weeks post-conceptional
age (PCA) or 4 weeks after birth, whichever is later.
Around a decade ago, the guidelines in general were the
same and the premature babies were first examined at 31-
33 weeks post-conceptional age or 2-6 weeks after birth.
There is a general agreement on these above guidelines on
a national and international level. The attached annexure
explains some authoritative resources and guidelines
36
published in national and international literature
especially over the last decade.
However, in spite of ongoing interest world over in
screening and management of ROP and advancing
knowledge, it may not be possible to exactly predict which
premature baby will develop ROP and to what extent and
why.”
[emphasis supplied]
On a review of the literature on ROP, the Supreme Court in
V. Krishnakumar (supra) set out the screening guidelines as
follows:
Year Source First screening Who to screen
2006 American Academy
of Paediatrics et al.
31 weeks PCA or 4
weeks after birth,
whichever is later.
<1500 gm birth
weight or <32 weeks
GA or higher.
2003 Jalali S et al. Indian J
Ophthalmology
31 weeks PCA or 3-4
weeks after birth,
whichever is earlier.
<1500 gm birth
weight or <32 weeks
GA or higher.
2003 Azad et al. JIMA 32 weeks PCA or 4-5
weeks after birth,
whichever is earlier.
<1500 gm birth
weight or <32 weeks
GA or higher.
2002 Aggarwal R et al.
Indian J. Paediatrics
32 weeks PCA or 4-6
weeks after birth,
whichever is earlier.
<1500 gm birth
weight or <32 weeks
GA.
1997 American Academy
of Paediatrics et al.
31-33 weeks PCA or
4-6 weeks after birth.
<1500 gm birth
weight or <28 weeks
GA or higher.
1996 Maheshwari R et al.
National Med. J.
India
32 weeks PCA or 2
weeks after birth,
whichever is earlier.
<1500 gm birth
weight or <35 weeks
GA or 02>24 hrs.
1988 Cryotherapy ROP
Group
4-6 weeks after birth. <1250 gm birth
weight.
This Court observed that ROP starts developing 2 to 4
weeks after birth when it is mandatory to do the first
screening of the child. As per the report of AIIMS “it may not
37
be possible to exactly predict which premature baby will
develop ROP and to what extent and why”. This would
necessitate the need for a check-up in all such cases.
11.2.4 It is clear from the above medical literature that ROP is a
visually progressive disease, which can be treated
successfully if it is diagnosed on time. ROP advances
through 5 stages. Medical literature suggests that Stage 3
can be treated by Laser or Cryotherapy treatment in order to
eliminate the abnormal vessels. Even at Stage 4, in some
cases, the central retina or macula remains intact thereby
keeping intact the central vision. When the disease
progresses to Stage 5, there is a total detachment, and the
retina becomes funnel shaped, leading to blindness.
11.2.5 We have carefully perused the original Medical Records of
the Appellant No.1-Hospital, which were provided in a
sealed cover to the Court.
We find that there is an entry at Page 100 of the
medical records dated 25.04.2005 recorded at 9:00 a.m.
which reads as under:
“ 25/4/05
9 AM Stable
Wt: 1.56 kg
Accepting cup feeds
S/E – NAD
38
D19 of Inj Amphocan
Plan for Discharge tomorrow
Adv:
- Breast feeds
- Cont. rest
- ROP Checkup (Dr Jha) ”
[emphasis supplied]
At the bottom of page 102 of the medical records, there
is another entry dated 26.04.2005, which reads as under:
“ 26/4 by Dr. SNJ
No ROP
Review, 2 weeks. ”
The said noting is signed by Dr. S.N. Jha – Appellant
No.4. There is, however, no time mentioned against this
noting.
A visual examination of the original medical
records/Treatment Sheet shows that this entry is not
recorded in the same sequence as all previous and
subsequent notings. The entries recorded at Page 100 and
Page 102 have been made at the bottom of the page. The
date “26/4” is mentioned in a different column, unlike the
other entries made before and after this entry. There is no
time of the ophthalmological examination by Appellant
No.4-Dr. S.N. Jha on 26.04.2005 mentioned in the record,
39
unlike all other notings by other doctors, who have
examined the patient, where the time is clearly recorded.
On the next page i.e. page 103 of the medical record, it
is mentioned as “Day 28” i.e. 26.04.2005 on the top of the
page. The first entry on that date is recorded at 10.30 am.
This would indicate that the baby was not examined prior
to 10.30 a.m. by any doctor.
There is no contemporaneous record to corroborate
that ROP screening was done by Appellant No.4 on
26.04.2005. The Nurses’ Daily Record or Treatment Sheet
do not mention that the dilation of the pupils of the baby
were carried out by administration of Cyclopentolate (0.5%)
and Phenylephrine (2.5%) drops to conduct test of ROP.
We had orally enquired from the learned counsel
appearing on behalf of Appellant No.4- Dr. S.N. Jha about
the approximate time at which the ROP check-up was done
by him on 26.04.2005. The counsel was unable to specify
the time at which the baby was examined by him.
11.2.6 The Respondent No.1-baby was discharged on 29.04.2005.
The Complainants were provided with a Discharge Slip. The
Discharge Slip does not contain any advice for a mandatory
40
follow-up for ROP. Rather, the Discharge Slip only advised
the Complainant to bring the Respondent No.1 for a review
to the Paediatrics OPD on Wednesday or Saturday at 4 P.M.
11.2.7 The Counsel for the Hospital and the Doctors contended that
post-discharge, the Respondent No.2-Complainant did not
bring the baby to the speciality Paediatric OPD for a checkup as advised in the Discharge Summary.
11.2.8 We have seen the original medical records produced by the
Appellant No.1-Hospital, and find that on both occasions,
i.e. 04.05.2005 and 13.07.2005, the Complainants went
correctly to the Paediatrics Unit of the General OPD. Hence,
the contention of the Appellants is liable to rejected as being
completely baseless.
11.2.9 The Complainant took the baby for a follow up check-up
post-discharge to the Paediatrics-III Department on two
occasions i.e. 04.05.2005 and 13.07.2005.
The baby was examined by Appellants No. 2 and 3 on
04.05.2005. In the Treatment Sheet, there is no
recommendation to have ROP test done, nor was the patient
advised to come back after two weeks. The noting on
04.05.2005 is extracted hereinbelow for ready reference:
41
“ MAHARAJA AGRASEN HOSPITAL
Punjabi Bagh, New Delhi – 26
Ph. 252266465 to 54 (10 lines)
General OPD Prescription
MAH No.: 0505404 Date : 04-05-05
Deptt./Unit …..PAEDIATRICS-III WED, SAT…09:00 To
11:00
Consultants : Dr. G.S. Kochhar / Dr.Naveen Jain
B/O POOJA SHARMA Age /Sex 1 Mths
Male.
Wt 1.65 kg
FUC 32 weeks preterm AGA with HMD
with bilateral pneumothorax
with fungal septicemia.
Baby stable.
Adv.
- Breast feeds.
- Continue supplements.
------------------
Signature Dr. Naveen Jain. ”
The Complainant took the baby for a further follow-up
on 13.07.2005 to the Paediatrics-III Department. The baby
was examined by Dr. Manoj on behalf of Appellant No.2. The
medical record even on this date does not mention any
advice for an ROP test. The attending doctor only advised
that a BERA test be done. The noting on 13.07.2005 is
reproduced hereinbelow for ready reference:
42
“ MAHARAJA AGRASEN HOSPITAL
Punjabi Bagh, New Delhi – 26
Ph. 252266465 to 54 (10 lines)
General OPD Prescription
MAH No 05052879 Date 13-07-05
Deptt.: PAEDIATRICS-III WED, SAT…09:00 To
11:00
Consultants : Dr. G.S. Kochhar / Dr.Naveen Jain
RISHABH SHARMA Age /Sex 4 Mths Male.
B/O Pooja Sharma
Wt 4 kg
Dr. Manoj Advice – BERA test
Calcirol sachet (3)
Visyneral-Z drops 8 drops daily.
RB tone drop 5 drops.
Syp. Lactocal 1/2 tsf.
------------------
Dr. G.S. Kochhar (Signature) ”
It is thus abundantly clear that the baby was rightly
taken to the Paediatrics Unit of the General OPD Clinic at
the chronological age of 4 to 5 weeks, when the onset of
ROP could have been detected. However, there was no
advice given by the treating doctors i.e. Appellants Nos. 2
and 3 – the Consultant Paediatricians, nor the Appellant
No.4 – Ophthalmologist to conduct the ROP test.
11.2.10 We find that the ROP was neither advised, nor carried out at
all by the Appellant No.1-Hospital, or Appellant No.4-Dr.
S.N. Jha, the Senior Ophthalmologist, throughout the
43
period of hospitalisation of the baby, or even after discharge.
The baby was born in the 32nd gestational week, and was
1.49 kgs at birth. As per standard protocol, the ROP
screening ought to have been done between 3-4 weeks from
birth. The baby remained admitted for 27 days in the
Hospital from 02.04.2005 to 29.04.2005. There is no
justification whatsoever why the mandatory screening of
ROP was not done for the baby, while he was under the
direct care and supervision of the Appellants.
We affirm the findings of the National Commission of
gross negligence by the Appellant Nos. 2 to 4-Doctors, and
deficiency of service by the Appellant No.1- Hospital.
11.3 Report of the Medical Board constituted by AIIMS
11.3.1 A perusal of the AIIMS Report 11.05.2012 shows that it was
premised on the alleged entry recorded by Appellant No.4 -
Dr. S.N. Jha on 26.04.2005, which records that ROP test
was conducted, and no ROP was detected.
We have already recorded a finding that the entry
made in the Treatment Sheet (at pages 100 and 102 of the
original Medical Records) seems to be an interpolation done
subsequently to cover up the failure of the Hospital and the
44
Doctors to advise or conduct the mandatory ROP check-up
and follow-up protocol.
The second point contained in the AIIMS Report that
the baby was not taken to the Paediatrics OPD is wholly
fallacious. We have seen the medical records, and find that
the baby was, in fact, taken to the Paediatrics Unit of the
General OPD. Hence, the basis of the Report is
misconceived, and cannot be relied upon.
11.3.2 It is well-settled that a court is not bound by the evidence of
an expert, which is advisory in nature. The court must
derive its own conclusions after carefully sifting through the
medical records, and whether the standard protocol was
followed in the treatment of the patient. The duty of an
expert witness is to furnish the Court with the necessary
scientific criteria for testing the accuracy of the conclusions,
so as to enable the Court to form an independent opinion by
the application of this criteria to the facts proved by the
evidence of the case.8 Whether such evidence could be
8 Ramesh Chandra Aggarwal vs. Regence Hospital Ltd. & Ors. (2009) 9 SCC 709; State of
H.P. v. Jai Lal (1999) 7 SCC 280 : 1999 SCC (Cri) 1184
45
accepted or how much weight should be attached to it is for
the court to decide.
9
11.3.3 We accept the view taken by the National Commission in
disregarding the opinion of the Medical Board constituted by
AIIMS.
11.3.4 The Complainants have discharged the initial burden of
proof10 by making out a case of clear negligence on the part
of the Appellant No.1-Hospital and the Paediatric doctors
under whose care the baby was admitted, as also Appellant
No.4 – Dr. S.N. Jha, the senior Ophthalmologist attached to
the Appellant No.1-Hospital.
The Appellant No.1 - Hospital and the Appellants Nos.
2-4 - Doctors have failed to satisfy the Court that ROP tests
were conducted at any point of time, or that the
Complainants were even advised to get the ROP test done.
11.4 Medical Negligence and Duty of Care
11.4.1 Medical negligence comprises of the following
constituents: (1) A legal duty to exercise due care on the part
of the medical professional; (2) failure to inform the patient of
9 Malay Kumar Ganguly v. Dr. Sukumar Mukherjee, (2009) 9 SCC 221 : (2010) 2 SCC (Cri)
299 : (2009) 3 SCC (Civ) 663; V. Kishan Rao v. Nikhil Super Speciality Hospital, (2010) 5
SCC 513 : (2010) 2 SCC (Civ) 460
10 Nizam's Institute of Medical Sciences v. Prasanth S. Dhananka, (2009) 6 SCC 1 : (2009) 2
SCC (Civ) 688; Savita Garg v. National Heart Institute (2004) 8 SCC 56
46
the risks involved; (3) the patient suffers damage as a
consequence of the undisclosed risk by the medical
professional; (4) if the risk had been disclosed, the patient
would have avoided the injury; (5) breach of the said duty
would give rise to an actionable claim of negligence.
The cause of action for negligence arises only when
damage occurs, since damage is a necessary ingredient of
this tort. In a complaint of medical negligence, the burden is
on the complainant to prove breach of duty, injury and
causation. The injury must be sufficiently proximate to the
medical practitioner's breach of duty. In the absence of
evidence to the contrary adduced by the opposite party, an
inference of causation may be drawn even though positive or
scientific proof is lacking.
11
11.4.2 Medical negligence is the breach of a duty of care by
an act of omission or commission by a medical professional
of ordinary prudence. Actionable medical negligence is the
neglect in exercising a reasonable degree of skill and
knowledge to the patient, to whom he owes a duty of care,
which has resulted in injury to such person. The standard to
11 Postgraduate Institute of Medical Education & Research v. Jaspal Singh, (2009) 7 SCC 330
: (2009) 3 SCC (Cri) 399 : (2009) 3 SCC (Civ) 114
47
be applied for adjudging whether the medical professional
charged has been negligent or not, in the performance of his
duty, would be that of an ordinary competent person
exercising ordinary skill in the profession. The law requires
neither the very highest nor a very low degree of care and
competence to adjudge whether the medical professional has
been negligent in the treatment of the patient.
12
11.4.3 The degree of skill and care required by
a medical practitioner stated in Halsbury's Laws of England13
is as follows:-
“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.
35. Degree of skill and care required.—…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
12 Refer to Laxman Balkrishna Joshi (Dr.) v. Dr. Trimbak Bapu Godbole, (1969) 1 SCR 206 :
AIR 1969 SC 128; Kusum Sharma v. Batra Hospital (2010) 3 SCC 480 : (2010) 2 SCC (Cri)
1127 : (2010) 1 SCC (Civ) 747
13 4th Edn., Vol. 26 pp. 17-18; 4th Edition, Vol.30, Para 35
48
ordinary skill would have taken had he been acting with
ordinary care.”
[emphasis supplied]
11.4.4 Lord Denning, in Hucks v. Cole14, held that a medical
practitioner would be liable only where his conduct falls
below the standards of a reasonably competent practitioner
in his field.
11.4.5 In earlier judgments, this Court referred to the Bolam
test laid down in Bolam v. Friern Hospital Management
Committee15. In this case, the doctor treating the patient
suffering from mental illness was held not to be guilty of
medical negligence by the Queen’s Bench Division for failure
to administer muscle-relaxant drugs and using physical
restraint in the course of electro-convulsive therapy. McNair,
J., in his opinion, explained the law in the following words16:
“… where you get a situation which involves the use of
some special skill or competence, then the test as to whether
there has been negligence or not is not the test of the man on
the top of a Clapham omnibus, because he has not got this
special skill. The test is the standard of the ordinary skilled
man exercising and professing to have that special skill. A
man need not possess the highest expert skill; it is well14 (1968) 118 New LJ 469; followed in Postgraduate Institute of Medical Education &
Research v. Jaspal Singh, (2009) 7 SCC 330 : (2009) 3 SCC (Cri) 399 : (2009) 3 SCC (Civ)
114
15 Bolam v. Friern Hospital Management Committee, (1957) 1 WLR 582: : (1957) 2 All ER 118
16 (WLR p. 586)
49
established law that it is sufficient if he exercises the
ordinary skill of an ordinary competent man exercising that
particular art.”
[emphasis supplied]
The ratio of the Bolam case is that it is enough for the
doctor to show that the standard of care and the skill
exercised by him was that of an ordinary competent medical
practitioner exercising an ordinary degree of professional
skill. McNair, J., held that17:
“… he [a Doctor] is not guilty of negligence if he
has acted in accordance with a practice accepted as proper by
a responsible body of medical men skilled in that particular
art.”
11.4.6 In the subsequent judgment rendered in
Eckersley v. Binnie18, Bingham, L.J. explained
the Bolam test in the following words: (Con LR p. 79)
“From these general statements it follows that a professional
man should command the corpus of knowledge which forms
part of the professional equipment of the ordinary member of
his profession. He should not lag behind other ordinary
assiduous and intelligent members of his profession in the
knowledge of new advances, discoveries and developments in
his field. He should have such an awareness as an ordinarily
competent practitioner would have of the deficiencies in his
17 (WLR. P 587)
18 (1988) 18 Con LR 1; followed in Jacob Mathew v. State of Punjab, (2005) 6 SCC 1 : 2005
SCC (Cri) 1369; S.K. Jhunjhunwala v. Dhanwanti Kaur, (2019) 2 SCC 28
50
knowledge and the limitations on his skill. He should be alert to
the hazards and risks in any professional task he undertakes
to the extent that other ordinarily competent members of the
profession would be alert. He must bring to any professional
task he undertakes no less expertise, skill and care than other
ordinarily competent members of his profession would bring,
but need bring no more. The standard is that of the reasonable
average. The law does not require of a professional man that he
be a paragon combining the qualities of polymath and prophet.
(Charlesworth & Percy, ibid., para 8.04)”
[emphasis supplied]
A medical professional should be alert to the hazards
and risks in any professional task he undertakes to the
extent that other ordinarily competent members of the
profession would be alert. He must bring to any professional
task he undertakes reasonable skill that other ordinarily
competent members of his profession would bring.
11.4.7 This Court followed the Bolam test in Jacob Mathew v.
State of Punjab19 wherein it was held that the Bolam test has
been widely accepted as decisive of the standard of care
required by medical practitioners, and it is invariably cited
with approval before the courts in India, and applied as a
touchstone to test the pleas of medical negligence. The court
51
summed up the law on medical negligence in the following
words:
“48. (1) Negligence is the breach of a duty caused by omission
to do something which a reasonable man guided by those
considerations which ordinarily regulate the conduct of human
affairs would do, or doing something which a prudent and
reasonable man would not do. The definition of negligence as
given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice
G.P. Singh), referred to hereinabove, holds good. Negligence
becomes actionable on account of injury resulting from the act
or omission amounting to negligence attributable to the person
sued. The essential components of negligence are three: ‘duty’,
‘breach’ and ‘resulting damage’.
(2) Negligence in the context of the medical profession
necessarily calls for a treatment with a difference. To infer
rashness or negligence on the part of a professional, in
particular a doctor, additional considerations apply. A case of
occupational negligence is different from one of professional
negligence. A simple lack of care, an error of judgment or an
accident, is not proof of negligence on the part of a medical
professional. So long as a doctor follows a practice acceptable
to the medical profession of that day, he cannot be held liable
for negligence merely because a better alternative course or
method of treatment was also available or simply because a
more skilled doctor would not have chosen to follow or resort to
that practice or procedure which the accused followed. When it
comes to the failure of taking precautions, what has to be seen
is whether those precautions were taken which the ordinary
experience of men has found to be sufficient; a failure to use
special or extraordinary precautions which might have
prevented the particular happening cannot be the standard for
judging the alleged negligence. So also, the standard of care,
52
while assessing the practice as adopted, is judged in the light
of knowledge available at the time of the incident, and not at
the date of trial. Similarly, when the charge of negligence arises
out of failure to use some particular equipment, the charge
would fail if the equipment was not generally available at that
particular time (that is, the time of the incident) at which it is
suggested it should have been used.
(3)A professional may be held liable for negligence on one of the
two findings: either he was not 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 possible for every professional to possess
the highest level of expertise or skills in that branch which he
practices. A highly skilled professional may be possessed of
better qualities, but that cannot be made the basis or the
yardstick for judging the performance of the professional
proceeded against on indictment of negligence.
(4)The test for determining medical negligence as laid down in
Bolam case [(1957) 1 WLR 582 : (1957) 2 All ER 118] holds
good in its applicability in India.”
[emphasis supplied]
11.4.8 In recent years, the Bolam test has been discarded by
the courts in England. In Bolitho v. City and Hackney Health
Authority20, a five judge bench of the House of Lords ruled
that21 :
20 (1998) 1 AC 232 : (1997) 3 WLR 1151 : (1997) 4 All ER 771 (HL)
21 (AC pp. 241 G-H and 242 A-B)
53
“… the court is not bound to hold that a defendant doctor
escapes liability for negligent treatment or diagnosis just
because he leads evidence from a number of medical experts
who are genuinely of opinion that the defendant's treatment or
diagnosis accorded with sound medical practice. In the Bolam22
case itself, McNair J. stated that the defendant had to have
acted in accordance with the practice accepted as proper by a “
responsible body of medical men.” Later, .. he referred to “a
standard of practice recognised as proper by a competent
reasonable body of opinion.” Again, in the passage which I
have cited from Maynard's23 case, Lord Scarman refers to a
“respectable” body of professional opinion. The use of these
adjectives—responsible, reasonable and respectable—all show
that the court has to be satisfied that the exponents of the body
of opinion relied upon can demonstrate that such opinion has a
logical basis. In particular in cases involving, as they so often
do, the weighing of risks against benefits, the judge before
accepting a body of opinion as being responsible, reasonable or
respectable, will need to be satisfied that, in forming their
views, the experts have directed their minds to the question of
comparative risks and benefits and have reached a defensible
conclusion on the matter.”
[emphasis supplied]
Lord Browne-Wilkinson, speaking for the bench, in his
opinion stated that despite a body of professional opinion
approving the doctor’s conduct, a doctor can be held liable
for negligence, if it is demonstrated that the professional
opinion is not capable of withstanding logical analysis24:
22 [1957] 1 W.L.R. 583, 587
23 [1984] 1 W.L.R. 634, 639
24 (AC p.243 A-E)
54
“These decisions demonstrate that in cases of diagnosis and
treatment there are cases where, despite a body of professional
opinion sanctioning the defendant's conduct, the defendant can
properly be held liable for negligence (I am not here considering
questions of disclosure of risk). In my judgment that is because,
in some cases, it cannot be demonstrated to the judge's
satisfaction that the body of opinion relied upon is reasonable
or responsible. In the vast majority of cases the fact that
distinguished experts in the field are of a particular opinion will
demonstrate the reasonableness of that opinion. In particular,
where there are questions of assessment of the relative risks
and benefits of adopting a particular medical practice, a
reasonable view necessarily presupposes that the relative risks
and benefits have been weighed by the experts in forming their
opinions. But if, in a rare case, it can be demonstrated that the
professional opinion is not capable of withstanding logical
analysis, the judge is entitled to hold that the body of opinion is
not reasonable or responsible.
[emphasis supplied]
11.4.9 A five judge bench of the Australian High Court in
Rogers v. Whitaker25 identified the basic flaw involved in
approaching the standard of duty of care of a doctor as laid
down in Bolam (supra), and held that:
“5. ….The law imposes on a medical practitioner a duty to
exercise reasonable care and skill in the provision of
professional advice and treatment. That duty is a "single
comprehensive duty covering all the ways in which a doctor is
25 (1992) 109 Aus LR 625: [1992]HCA 58
55
called upon to exercise his skill and judgment" 26; it extends to
the examination, diagnosis and treatment of the patient and the
provision of information.”
“12. In Australia, it has been accepted that the standard of care
to be observed by a person with some special skill or
competence is that of the ordinary skilled person exercising and
professing to have that special skill.27 But, that standard is not
determined solely or even primarily by reference to the practice
followed or supported by a responsible body of opinion in the
relevant profession or trade.28 Even in the sphere of diagnosis
and treatment, the heartland of the skilled medical practitioner,
the Bolam principle has not always been applied.
29 Further,
and more importantly, particularly in the field of non-disclosure
of risk and the provision of advice and information, the Bolam
principle has been discarded and, instead, the courts have
adopted the principle that, while evidence of acceptable medical
practice is a useful guide for the courts, it is for the courts to
adjudicate on what is the appropriate standard of care after
giving weight to "the paramount consideration that a person is
entitled to make his own decisions about his life".
[emphasis supplied]
11.4.10 A seven-judge bench of the U.K. Supreme Court in a
more recent judgment delivered in Montgomery v Lanarkshire
Health Board30 traced the changes in the jurisprudence of
medical negligence in England, and held that “patients are
26 Sidaway v. Governors of Bethlem Royal Hospital [1985] UKHL 1; (1985) AC 871
27 Cook v. Cook [1986] HCA 73; (1986) 162 CLR 376, at pp 383-384; Papatonakis v.
Australian Telecommunications Commission [1985] HCA 3; (1985) 156 CLR 7, at p 36; Weber
v. Land Agents Board (1986) 40 SASR 312, at p 316; Lewis v. Tressider Andrews Associates
Pty. Ltd. (1987) 2 Qd R 533.
28 Florida Hotels Pty. Ltd. v. Mayo [1965] HCA 26; (1965) 113 CLR 588)
29 Albrighton v. Royal Prince Alfred Hospital (1980) 2 NSWLR 542; E v. Australian Red Cross
[1991] FCA 20; (1991) 99 ALR 601)
30 [2015] UKSC 11
56
now widely regarded as persons holding rights, rather than as
the passive recipients of the care of the medical profession”.
The Supreme Court noted that the courts have tacitly ceased
to apply the Bolam test in relation to the advice given by the
doctor to their patients. The Court summed up the law on
medical negligence in the following words:
“82. In the law of negligence, this approach entails a duty on
the part of doctors to take reasonable care to ensure that a
patient is aware of material risks of injury that are inherent in
treatment. This can be understood, within the traditional
framework of negligence, as a duty of care to avoid exposing a
person to a risk of injury which she would otherwise have
avoided, but it is also the counterpart of the patient’s
entitlement to decide whether or not to incur that risk. The
existence of that entitlement, and the fact that its exercise does
not depend exclusively on medical considerations, are
important. They point to a fundamental distinction between, on
the one hand, the doctor’s role when considering possible
investigatory or treatment options and, on the other, her role in
discussing with the patient any recommended treatment and
possible alternatives, and the risks of injury which may be
involved.
87. The correct position, in relation to the risks of injury
involved in treatment, can now be seen to be substantially that
adopted in Sidaway by Lord Scarman, and by Lord Woolf MR in
Pearce, subject to the refinement made by the High Court of
Australia in Rogers v Whitaker, which we have discussed at
paras 77-73. An adult person of sound mind is entitled to
decide which, if any, of the available forms of treatment to
57
undergo, and her consent must be obtained before treatment
interfering with her bodily integrity is undertaken. The doctor is
therefore under a duty to take reasonable care to ensure that
the patient is aware of any material risks involved in any
recommended treatment, and of any reasonable alternative or
variant treatments. The test of materiality is whether, in the
circumstances of the particular case, a reasonable person in the
patient’s position would be likely to attach significance to the
risk, or the doctor is or should reasonably be aware that the
particular patient would be likely to attach significance to it.”
[emphasis supplied]
11.4.11 This Court in V. Kishan Rao v. Nikhil Super Speciality
Hospital31 has opined that the Bolam test requires reconsideration. A.K. Ganguly, J. speaking for this Court,
observed that:
“23. Even though Bolam test was accepted by this Court as
providing the standard norms in cases of medical negligence, in
the country of its origin, it is questioned on various grounds. It
has been found that the inherent danger in Bolam test is that if
the courts defer too readily to expert evidence medical
standards would obviously decline. Michael Jones in his
treatise on Medical Negligence (Sweet and Maxwell), 4th Edn.,
2008 criticised the Bolam test as it opts for the lowest common
denominator. The learned author noted that opinion was
gaining ground in England that Bolam test should be restricted
to those cases where an adverse result follows a course of
treatment which has been intentional and has been shown to
benefit other patients previously. This should not be extended
to certain types of medical accidents merely on the basis of how
31 (2010) 5 SCC 513 : (2010) 2 SCC (Civ) 460
58
common they are. It is felt “to do this would set us on the
slippery slope of excusing carelessness when it happens often
enough” (see Michael Jones on Medical Negligence, para 3-039
at p. 246).
25. Even though Bolam test “has not been uprooted” it has
come under some criticism as has been noted in Jackson &
Powell on Professional Negligence (Sweet and Maxwell), 5th
Edn., 2002. The learned authors have noted (see para 7-047 at
p. 200 in Professional Negligence) that there is an argument to
the effect that Bolam test is inconsistent with the right to life
unless the domestic courts construe that the requirement to take
reasonable care is equivalent with the requirement of making
adequate provision for medical care. In the context of such
jurisprudential thinking in England, time has come for this
Court also to reconsider the parameters set down in Bolam test
as a guide to decide cases on medical negligence and specially
in view of Article 21 of our Constitution which encompasses
within its guarantee, a right to medical treatment and medical
care.
26. In England, Bolam test is now considered merely a “rule of
practice or of evidence. It is not a rule of law” (see para 1.60
in Clinical Negligence by Michael Powers QC, Nigel Harris and
Anthony Barton, 4th Edn., Tottel Publishing). However, as in
the larger Bench of this Court in Jacob Mathew v. State of
Punjab, Lahoti, C.J. has accepted Bolam test as correctly
laying down the standards for judging cases of medical
negligence, we follow the same and refuse to depart from it.”
[emphasis supplied]
59
11.4.12 More recently, this Court in Arun Kumar Manglik v.
Chirayu Health and Medicare (P) Ltd.32 has held that the
standard of care as enunciated in Bolam (supra) must evolve
in consonance with its subsequent interpretation adopted by
English and Indian courts.
11.4.13 Applying the aforesaid principles to the facts of the
present case, Appellant Nos. 2 and 3 viz. Dr. G.S. Kochhar
and Dr. Naveen Jain, the Consultant Paediatricians,
undoubtedly possessed the skill and qualifications of a
Paediatrician, and the baby was placed under their direct
care and treatment from birth till he was 3 ½ months old.
They owed a duty of care to the baby and his parents.
Appellant No.4- Dr. S.N. Jha, the Senior Consultant
Ophthalmologist, who was engaged by the Appellant No.1-
Hospital, and was the specialist in the Ophthalmology
Department, ought to have followed the standard protocol for
screening the Respondent No.1-baby for ROP, which is
prescribed at the chronological age of 3 to 4 weeks after
birth.
32 (2019) 7 SCC 401
60
11.4.14 Appellant Nos.1 to 3 are liable for medical negligence
since at no stage were the parents of Complainant No.1
either advised or guided about the possibility of occurrence of
ROP in a premature baby, nor was the baby examined by
Appellant No.4, the Ophthalmologist as per standard
protocol. The doctors ought to have been fully aware of the
high chances of occurrence of ROP in a pre-term baby. The
lack of care constitutes a gross deficiency in service.
After discharge on 29.04.2005, the baby was brought
on 04.05.2005 at the chronological age of 5 weeks. Even on
this date, no ROP test was either advised or conducted.
The baby was brought for a further follow up check-up
on 13.07.2005, by which time the baby was 3 ½ months
old. Even on this visit, the Appellants did not advise or
guide the Respondent No.2-Complainant to have the ROP
test conducted.
11.4.15 After reviewing the medical literature setting out the
contemporaneous standards and established protocols on
ROP, the reasonable standard of care for a premature baby,
mandates screening and checking up for ROP. It is a
medically accepted position that ROP is a reversible disease,
61
if diagnosed up to Stage 3. Had the ROP test been conducted
by the Appellants, there would have been timely detection of
the onset of ROP, which at that stage would have been
reversible.
On account of the negligence of the Appellants 2 to 4,
the disease remained undiagnosed. It came to be diagnosed
on 03.12.2005, when the baby was 8 months old, by Shroff
Charity Eye Hospital. By this time, the ROP had reached
Stage 5, when it becomes irreversible leading to total
blindness of the Respondent No.1- baby.
11.4.16 We affirm the findings of the National Commission to
hold that the Appellant No.1-Hospital, Appellant Nos. 2 and
3- the Paediatricians, and Appellant No.4 – Dr. S.N. Jha, the
Senior Ophthalmologist, owed a legal duty of care to the
Complainants/Respondents No.1 and 2. The failure to inform
the Respondent No.2-mother of the necessity to have the ROP
test conducted in the case of a pre-term baby, and the high
risk involved which could lead to total blindness, was a
breach of duty. Furthermore, the failure to carry out the ROP
test, which is mandated by standard protocol, while the baby
was under their direct care and supervision from birth till he
62
was 3 ½ months old, amounted to gross negligence by the
Doctors, and deficiency of service by the Hospital. The
consequential damage caused to the baby by not having
conducted the mandatory ROP test, which led to the total
blindess of the baby, has given rise to an actionable claim of
negligence.
11.4.17 It is well established that a hospital is vicariously liable
for the acts of negligence committed by the doctors engaged
or empanelled to provide medical care.
33 It is common
experience that when a patient goes to a hospital, he/she
goes there on account of the reputation of the hospital, and
with the hope that due and proper care will be taken by the
hospital authorities. 34 If the hospital fails to discharge their
duties through their doctors, being employed on job basis or
employed on contract basis, it is the hospital which has to
justify the acts of commission or omission on behalf of their
doctors.
35
33 Savita Garg v. National Heart Institute (2004) 8 SCC 56; Balram Prasad (2014) 1 SCC
384 : (2014) 1 SCC (Civ) 327; Achutrao Haribhau Khodwa v. State of Maharashtra (1996) 2
SCC 634; V. Krishnakumar v. State of Tamil Nadu, (2015) 9 SCC 388 : (2015) 4 SCC (Civ)
546
34 Savita Garg v. National Heart Institute (2004) 8 SCC 56 : (2004) 8 Scale 694
35 Savita Garg v. National Heart Institute (2004) 8 SCC 56 : (2004) 8 Scale 694
63
11.4.18 Accordingly, we hold Appellant No.1-Hospital to be
vicariously liable for the acts of omission and commission
committed by Appellant Nos. 2 to 4. We hold all the
Appellants as being jointly and severally liable to pay
compensation to the Complainants.
11.5 Compensation
11.5.1 Having affirmed the findings recorded by the National
Commission on the question of medical negligence and
deficiency in service by the Appellants, the issue whether
the compensation awarded by the National Commission was
just and reasonable is required to be determined.
The Complainants had claimed Rs. 1,30,25,000/- as
compensation before the National Commission. The National
Commission vide the Impugned Judgment awarded a total
sum of Rs. 64,00,000/- to the Complainants along with
interest.
11.5.2 This Court vide Order dated 06.11.2019 directed the
Appellants to release a sum of Rs.5,00,000/- (Rupees Five
Lakhs) in favour of the Respondent No.2-Complainant from
64
the amount lying deposited by the Appellant No.1-Hospital
in the Court.
This Court further directed the
Complainant/Respondent No.2 to file an affidavit regarding
the education received by the Respondent No.1, and the
level of proficiency he had attained.
11.5.3 Accordingly, the Respondent No.2- Complainant has stated
on affidavit that the Respondent No.1, who is now 14 years
old, was studying in a Government Senior Secondary School
for Blind Boys, Kingsway Camp from 2013 to 2017, and
barely received education for 4 years, up to 5th standard.
The Respondent No.1 was forced to leave school since the
Respondent No.2-Complainant was unable to bear his
educational, co-curricular and transportation expenses. The
father of Respondent No.1, who was working as a security
guard with the Municipal Corporation of Delhi, had expired
in 2013. The Respondent No.2-Complainant stated that she
is currently employed as a part-time receptionist since
2017, and earns Rs. 5,500/- per month as salary, and
receives Rs. 2,500/- per month under the Delhi Vidhwa
Pension Yojna. She further stated that Respondent No.1
65
received Rs. 2,500/- per month under the Delhi
Government’s Scheme for Subsistence Allowance to Persons
with Special Needs.
11.5.4 The grant of compensation to remedy the wrong of medical
negligence is within the realm of law of torts. It is based on
the principle of restitutio in integrum. The said principle
provides that a person is entitled to damages which should
as nearly as possible get that sum of money which would
put him in the same position as he would have been if he
had not sustained the wrong.36
11.5.5 In our considered view, having regard to the finding that the
medical negligence in the instant case occurred in 2005,
and the litigation has been pending before this Court for
over 3 years, coupled with the fact that the additional
monthly expenses such as the care of an attendant/nurse,
educational expenses of the patient in a special school,
assistive devices etc. have not been taken into account, it
would serve the ends of justice if the compensation awarded
36 Livingstone v. Rawyards Coal Co., (1880) LR 5 AC 25 (HL)]; followed in Malay Kumar
Ganguly v. Sukumar Mukherjee, (2009) 9 SCC 221 : (2009) 3 SCC (Civ) 663 : (2010) 2 SCC
(Cri) 299 and V. Krishnakumar v. State of T.N., (2015) 9 SCC 388 : (2015) 4 SCC (Civ) 546;
Balram Prasad v. Kunal Saha, (2014) 1 SCC 384 : (2014) 1 SCC (Civ) 327
66
by the National Commission is enhanced, by a further
lump-sum amount of Rs. 12,00,000 (Rupees Twelve Lakhs).
11.5.6 In conclusion, we pass the following directions to secure the
interest and welfare of Respondent No.1. These directions
are being passed to ensure that the compensation received
is utilized for the welfare of Respondent No.1, to enable him
to acquire suitable education and equip him to become selfreliant.
We direct that the compensation of Rs. 76,00,000/-
awarded to the Respondent No.1- Master Rishabh Sharma
s/o Mrs. Pooja Sharma (in C.A. No. 6619 of 2016), be
utilized in the following manner:
a) Rs. 60,00,000/- (Rupees Sixty Lacs Only) is allocated
exclusively for Respondent No.1- Master Rishabh Sharma
for his education, welfare, and sustenance;
b)Rs. 15,00,000/- (Rupees Fifteen Lacs Only) is allocated to
Mrs. Pooja Sharma, the mother of Master Rishabh Sharma,
as his care-giver, after deduction of an amount of
Rs.5,00,000/- already disbursed to her.;
c) Rs. 1,00,000/- (Rupees One Lac Only) is awarded towards
litigation costs, payable to Mr. Jai Dehadrai, Advocate and
67
Mr. Sidharth Arora, Advocate, who have represented the
Complainants on a pro bono basis (as stated by them) in
this Court.
11.5.7 The amount of Rs. 60,00,000/- awarded to Master Rishabh
Sharma shall be disbursed in the following manner:
A. Rs. 50,00,000/- be deposited in a Five Years’ Post
Office Time Deposit Scheme in the name of Master
Rishabh Sharma with Mrs. Pooja Sharma as his
natural guardian. Let five deposits in multiples of Rs.
10,00,000/- each be made. The deposits shall be
opened in the Post Office Savings Bank Account of
the Supreme Court Post Office, New Delhi. The
account shall be operated by Mrs. Pooja Sharma
under the supervision of the concerned Registrar of
this Court.
The aforesaid five deposits aggregating to
Rs.50,00,000/- will fetch Master Rishabh Sharma an
annual interest income of Rs.3,85,000/, which will
be credited into a Savings Account with the Post
Office. Out of the said sum, Rs.1,50,000/- shall be
invested annually in a 15 Year Public Provident Fund
68
(“PPF”) Account to be opened in the name of Master
Rishabh Sharma with UCO Bank, Supreme Court,
Tilak Marg, New Delhi. These yearly investments,
going by the provisions of the Income Tax Act, 1961,
will be tax free.
After having invested Rs.1,50,000/- every
year in a PPF account, the rest of the yearly income
amounting to Rs.2,35,000/- p.a. (from and out of
Rs.3,85,000/-) which is equivalent to about
Rs.20,000/-per month, shall be utilized by
Respondent No.2- Mrs. Pooja Sharma for the
education and upbringing of Respondent No.1.
B. Rs.4,50,000/- shall be deposited in a Five Year Post
Office Monthly Income Scheme Account (“MIS
Account”) with the Supreme Post Office in the name
of Master Rishabh Sharma so that it will give him
monthly interest of 7.6% p.a., that is to say
Rs.2,850/- per month, which shall be utilized by his
Mrs. Pooja Sharma primarily for the upbringing of
Respondent No.1.
69
C. The balance of Rs. 5,50,000/- from the amount
deposited by the Appellants, shall be invested in a
Five Year Fixed Deposit Account (“FD Account”) to
opened with UCO Bank, Supreme Court, Tilak Marg,
New Delhi in the name of Master Rishabh Sharma.
The interest accruing therefrom may be utilized by
Mrs. Pooja Sharma in such manner as is deemed
appropriate.
D. These investments will ensure an annual income of
approximately Rs. 4,50,000/-. With the investment
of Rs. 1,50,000/- in a PPF Account, which will be tax
free, as the annual income of Rs. 3,00,000/- will be
within the permissible tax exemption limit of Rs.
3,00,000/- plus Rs. 75,000/- (Disability Allowance
under Section 80U of the Income Tax Act,1961).
E. All these deposits on maturity shall be re-invested by
Respondent No.2 – Pooja Sharma with the
concurrence of the concerned Registrar of this Court
on such terms, which will fetch a high rate of
interest, and preserve the corpus for the benefit of
Respondent No.1. At no stage, will the Respondent
70
No.2 be permitted to withdraw any amount from
these deposits without the permission of the
concerned Registrar.
11.5.8 We direct the concerned Registrar of this Court to be
associated with Respondent No.2- the mother of Master
Rishabh Sharma, in giving effect to the directions issued
hereinabove.
12. Accordingly, we allow Civil Appeal No. 9461 of 2019 (Diary
No. 15393 of 2019) filed by the Complainants.
13. Civil Appeal No. 6619 of 2016 filed by the Hospital and the
Doctors is dismissed. The Appellant Nos. 1 to 4 in Civil
Appeal No. 6619 of 2016 are directed to deposit the balance
amount of. Rs. 44,00,000/- in this Court within a further
period of 12 weeks from today.
14. An affidavit of compliance with respect to the deposit of
compensation be filed by the Appellants before this Court.
15. We have been informed by the Registry of this Court that
the amount of Rs. 32,00,000/-, which was deposited by the
Appellants pursuant to Order dated 29.07.2016 of this
Court, and kept in a Fixed Deposit with UCO Bank, has
accrued an interest of about Rs. 3,80,954/-. We direct that
71
this interest amount be made over to Mrs. Pooja Sharma,
the mother and care-giver, for the welfare and education of
Master Rishabh Sharma, for the current year.
16. The original medical records be returned by the Registry to
the counsel for the Appellant No.1-Hospital.
Pending Applications, if any, are accordingly disposed of.
Ordered accordingly.
…..……...........................J.
(UDAY UMESH LALIT)
..….……..........................J.
(INDU MALHOTRA)
New Delhi
December 16, 2019.
