MAHARAJA AGRASEN HOSPITAL & ORS. versus MASTER RISHABH SHARMA & ORS. on 16 December 2019

[2019] 16 S.C.R. 1185

MAHARAJA AGRASEN HOSPITAL & ORS.

v.

MASTER RISHABH SHARMA & ORS.

(Civil Appeal No. 6619 of 2016)

DECEMBER 16, 2019

[UDAY UMESH LALIT AND INDU MALHOTRA, JJ.]

Medical Negligence – Respondents Nos. 1 to 3-complainantsfiled a complaint of medical negligence against appellant No. 1-hospital and appellant Nos. 2 to 4-the Paediatricians andophthalmologist doctors working with the hospital and respondentNo. 4-the Gynaecologist before the National Consumer DisputesRedressal Commission – NCDRC held the appellant no. 1-hospitalguilty of medical negligence, since they failed to carry out themandatory check up of Retinopathy of Prematurity (ROP) onrespondent No. 1, who was a pre-term baby, which led to his totalblindness and appellants Nos. 1 to 4 were jointly held liable topay the total amount of Rs. 64,00,000/- – On appeal, held: Theappellants owed a legal duty of care to the complainants/respondents Nos. 1 & 2 – The failure to inform the respondentNo.2- mother of the respondent No. 1 of the necessity to have theROP test conducted in the case of a pre-term baby and the highrisk involved which could lead total blindness, was a breach ofduty – Furthermore, the failure to carry out the ROP test, which ismandated by standard protocol, while the baby was under theirdirect care and supervision from birth till he was 3 and 1/2 monthsold, amounted to gross negligence by the doctors and deficiencyof service by the hospital – Besides, there was inordinate delay ofover 2 years by appellant Nos. 1 in making the medical records ofrespondent no.1 available to respondent no.2 and same wouldconstitute a grave professional misconduct u/regn. 7 of the IMCregulations, apart from being a gross deficiency in service – Thefindings of the NCDRC affirmed and compensation of Rs.76,00,000/- awarded to respondent no. 1 – Consumer Protection– Deficiency in service – Indian Medical Council (ProfessionalConduct, Etiquettes and Ethics) Regulations, 2002 – Regulation1.3.2.

A

B

C

D

E

F

G

H

A

AMedical negligence – Constituents of – Held: Medicalnegligence comprises of the following constituents: (1) A legal dutyto exercise due care on the part of the medical professional; (2)failure to inform the patient of the risks involved; (3) the patientsuffers damage as a consequence of the undisclosed risk by theBmedical professional; (4) if the risk had been disclosed, the patientwould have avoided the injury; (5) breach of the said duty wouldgive rise to an actionable claim of negligence.

Medical negligence – Cause of action for – Held: The causeof action for negligence arises only when damage occurs, sinceCdamage is a necessary ingredient of this tort – In a complaint ofmedical negligence, the burden is on the complainant to provebreach of duty, injury and causation – The injury must besufficiently proximate to the medical practitioner’s breach of duty– In the absence of evidence to the contrary adduced by the Dopposite party, an inference of causation may be drawn eventhough positive or scientific proof is lacking.Doctrines/Principles – Vicarious Liability – discussed.Medical Negligence – Bolam Test – discussed.

Disposing of the appeals, the CourtE

Inordinate Delay in Supply of Medical Records HELD: 1.1 There was an inordinate delay of over 2 yearsin making the Medical Records of Respondent No.1 availableto the Respondent No.2-Complainant. Regulation 1.3.2 of theFIndian Medical Council (Professional Conduct, Etiquettes andEthics) Regulations, 2002 casts a statutory obligation upon everydoctor/hospital to provide medical records within 72 hours of therequest being made by the patient. [Para 11.1] [1203-C-D]

Conclusion

1.2 As per Regulation 7, if the doctor refuses or fails toGprovide the medical records within 72 hours when the patientor his/her authorised representative makes a request as per theRegulation 1.3.2, the said act of commission or omission wouldconstitute professional misconduct rendering him/her liable fordisciplinary action and punishment under Regulation 8. [ParaH11.1.2] [1204-D]

1.3 The withholding the medical records of RespondentNo.1, who was a premature baby, for a period of over 2 years,would constitute grave professional misconduct underRegulation 7, apart from being a gross deficiency in service onthe part of the Appellant No.1-Hospital and its management.[Para 11.1.7] [1206-G; 1207-A]

Failure to diagnose Retinopathy of Prematurity (ROP)

2.1 The ROP was neither advised, nor carried out at allby the Appellant No.1- Hospital, or Appellant No.4-the SeniorOphthalmologist, throughout the period of hospitalisation of thebaby, or even after discharge. The baby was born in the 32[nd]gestational week, and was 1.49 kgs at birth. As per standardprotocol, the ROP screening ought to have been done between3-4 weeks from birth. The baby remained admitted for 27 daysin the Hospital from 02.04.2005 to 29.04.2005. There is nojustification whatsoever why the mandatory screening of ROPwas not done for the baby, while he was under the direct careand supervision of the Appellants. [Para 11.2.10] [1215-G-H;1216-A]

Medical Negligence and Duty of Care

3.1 Medical negligence comprises of the followingconstituents: (1) A legal duty to exercise due care on the partof the medical professional; (2) failure to inform the patient ofthe risks involved; (3) the patient suffers damage as aconsequence of the undisclosed risk by the medical professional;(4) if the risk had been disclosed, the patient would have avoidedthe injury; (5) breach of the said duty would give rise to anactionable claim of negligence. [Para 11.4.1] [1217-D]

3.2 The cause of action for negligence arises only whendamage occurs, since damage is a necessary ingredient of thistort. In a complaint of medical negligence, the burden is on thecomplainant to prove breach of duty, injury and causation. Theinjury must be sufficiently proximate to the medicalpractitioner’s breach of duty. In the absence of evidence to thecontrary adduced by the opposite party, an inference of causationmay be drawn even though positive or scientific proof is lacking.[Para 11.4.1] [1217-E-F]

A

B

C

D

E

F

G

H

A3.3 Medical negligence is the breach of a duty of care byan act of omission or commission by a medical professional ofordinary prudence. Actionable medical negligence is the neglectin exercising a reasonable degree of skill and knowledge to thepatient, to whom he owes a duty of care, which has resulted ininjury to such person. The standard to be applied for adjudgingBwhether the medical professional charged has been negligent ornot, in the performance of his duty, would be that of an ordinarycompetent person exercising ordinary skill in the profession.The law requires neither the very highest nor a very low degreeof care and competence to adjudge whether the medicalCprofessional has been negligent in the treatment of the patient.[Para 11.4.2] [1217-F-G; 1218-A]

3.4 In the present case, Appellant Nos. 2 and 3-theConsultant Paediatricians, undoubtedly possessed the skill andqualifications of a Paediatrician, and the baby was placed underDtheir direct care and treatment from birth till he was 3 ½ monthsold. They owed a duty of care to the baby and his parents.Appellant No.4-the Senior Consultant Ophthalmologist, who wasengaged by the Appellant No.1-Hospital, and was the specialistin the Ophthalmology Department, ought to have followed thestandard protocol for screening the Respondent No.1-baby forEROP, which is prescribed at the chronological age of 3 to 4weeks after birth. [Para 11.4.13] [1227-D-E]

3.5 Appellant Nos.1 to 3 are liable for medical negligencesince at no stage were the parents of Complainant No.1 eitheradvised or guided about the possibility of occurrence of ROP inFa premature baby, nor was the baby examined by Appellant No.4,the Ophthalmologist as per standard protocol. The doctors oughtto have been fully aware of the high chances of occurrence ofROP in a pre-term baby. The lack of care constitutes a grossdeficiency in service. After discharge on 29.04.2005, the babywas brought on 04.05.2005 at the chronological age of 5 weeks.GEven on this date, no ROP test was either advised or conducted.The baby was brought for a further follow up check-up on13.07.2005, by which time the baby was 3 ½ months old. Evenon this visit, the Appellants did not advise or guide theRespondent No.2-Complainant to have the ROP test conducted.H[Para 11.4.14] [1227-F-G]

3.6 This Court affirms the findings of the NationalCommission to hold that the Appellant No.1-Hospital, AppellantNos. 2 and 3- the Paediatricians, and Appellant No.4- the SeniorOphthalmologist, owed a legal duty of care to the Complainants/Respondents No.1 and 2. The failure to inform the RespondentNo.2-mother of the necessity to have the ROP test conductedin the case of a pre-term baby, and the high risk involved whichcould lead to total blindness, was a breach of duty. Furthermore,the failure to carry out the ROP test, which is mandated bystandard protocol, while the baby was under their direct care andsupervision from birth till he was 3 ½ months old, amounted togross negligence by the Doctors, and deficiency of service bythe Hospital. The consequential damage caused to the baby bynot having conducted the mandatory ROP test, which led to thetotal blindess of the baby, has given rise to an actionable claimof negligence. [Para 11.4.16] [1228-E-F]

V. Krishnakumar v. State of Tamil Nadu (2015) 9 SCC388 : [2015] 8 SCR 100 ; Jacob Mathew v. State ofPunjab (2005) 6 SCC 1 : [2005] 2 Suppl. SCR 307 ;V. Kishan Rao v. Nikhil Super Speciality Hospital(2010) 5 SCC 513 : [2010] 5 SCR 1 – relied on Federation of Obstetrics & Gynaecological Societiesof India v. Union of India (2019) 6 SCC 283 ; RameshChandra Aggarwal v. Regence Hospital Ltd. & Ors.(2009) 9 SCC 709 : [2009] 14 SCR 424 ; MalayKumar Ganguly v. Dr. Sukumar Mukherjee, (2009) 9SCC 221 : [2009] 13 SCR 1 ; V. Kishan Rao v. NikhilSuper Speciality Hospital, (2010) 5 SCC 513 : [2010]5 SCR 1 ; Nizam’s Institute of Medical Sciences v.Prasanth S. Dhananka, (2009) 6 SCC 1 : [2009] 9SCR 313 ; Savita Garg v. National Heart Institute(2004) 8 SCC 56 : [2004] 5 Suppl. SCR 359 ;Postgraduate Institute of Medical Education &Research v. Jaspal Singh, (2009) 7 SCC 330 : [2009]9 SCR 889 ; Laxman Balkrishna Joshi (Dr.) v. Dr.Trimbak Bapu Godbole, [1969] 1 SCR 206 ; KusumSharma v. Batra Hospital (2010) 3 SCC 480 : [2010]

A

B

C

D

E

F

G

H

A2 SCR 685 ; S.K. Jhunjhunwala v. Dhanwanti Kaur,(2019) 2 SCC 28 ; Arun Kumar Manglik v. ChirayuHealth and Medicare (P) Ltd. (2019) 7 SCC 401 :[2019] 3 SCR 281 ; Balram Prasad (2014) 1 SCC 384: [2013] 12 SCR 30 ; Livingstone v. Rawyards CoalBCo., (1880) LR 5 AC 25 (HL) ; Achutrao HaribhauKhodwa v. State of Maharashtra (1996) 2 SCC 634 :[1996] 2 SCR 881 ; State of H.P. v. Jai Lal (1999) 7SCC 280 : [1999] 2 Suppl. SCR 318 – referred to.

Hucks v. Cole (1968) 118 New LJ 469 ; Bolam v.CFriern Hospital Management Committee, (1957) 1WLR 582 ; Eckersley v. Binnie (1988) 18 Con LR 1 ;Bolitho v. City and Hackney Health Authority (1998)1 AC 232 [1957] 1 W.L.R. 583, 587 ; Rogers v.Whitaker (1992) 109 Aus LR 625 ; Montgomery v.DLanarkshire Health Board [2015] UKSC 11– referredto.

Halsbury’s Laws of England 4th Edn., Vol. 26 pp. 17-18

CaseLawReference

E

MAHARAJA AGRASEN HOSPITAL & ORS. v. MASTERRISHABH SHARMA & ORS.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6619of 2016.

From the Judgment and Order dated 10.05.2016 of the NationalConsumer Disputes Redressal Commission at New Delhi in ConsumerComplaint No. 119 of 2007

With

Civil Appeal No. 9461 of 2019.

Gaurav Goel, Sidharth Arora, Harshit Goel, Sameer Shrivastava(With Ms. Pooja Sharma and Master Rishabh Sharma), GautamNarayan, Neeraj K. Gupta, A.K. Sharma, Anjani Kumar, Ranjeet KumarSingh, Anil Kumar, Ms. Manisha Ambwani, Advs. for the appearingparties.

The Judgment of the Court was delivered by INDU MALHOTRA, J.

1. The present Civil Appeals arise out of a complaint of medicalnegligence made by Respondent Nos. 1 to 3 – the Complainants againstthe Appellant No.1 – Hospital and Appellant Nos. 2 to 4 – thePaediatricians and Ophthalmologist Doctors working with the AppellantNo.1-Hospital, and Respondent No.4- the Gynaecologist, before theNational Consumer Disputes Redressal Commission (hereinafterreferred to as the “National Commission”).

A

B

C

D

E

F

G

H

A2. The National Commission vide Judgment and Order dated10.05.2016 (“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 themandatory check up of Retinopathy of Prematurity (“ROP”) onRespondent No.1-Master Rishabh, who was a pre-term baby, whichBled to his total blindness. In so far as Respondent No.4- Dr. RamaSharma, the Gynaecologist is concerned, who had delivered the baby,she was exonerated by the National Commission, and has not beenpressed before this Court.

A

3. Aggrieved by the impugned Judgment passed by the NationalCCommission, the Appellant No.1- Maharaja Agrasen Hospital, a superspeciality hospital, Appellant No.2 -Dr. G.S. Kochhar and AppellantNo.3- Dr. Naveen Jain, the Consultant Paediatricians working for theAppellant No.1 – Hospital, and Appellant No.4-Dr. S.N. Jha, the SeniorConsultant Ophthalmologist working for the Appellant No.1-HospitalDhave filed Civil Appeal No. 6619 of 2016.

4. Respondent No.1-Master Rishab Sharma, is the child-patient,who was Complainant No.1 before the National Commission, and wasrepresented by his widowed mother Pooja Sharma – Respondent No.2/the Complainant No.2. Respondent No.3 is the elder brother ofRespondent No.1.E

The Complainants have filed Civil Appeal No. 9461 of 2019(Diary No. 15393 of 2019) before this Court for further enhancementof the compensation awarded by the National Commission.

5. The background facts in which the present Civil Appeals haveFbeen filed are as under:- 5.1 Respondent No.2-Pooja Sharma – the Complainant No.2 wasunder the ante-natal care of Respondent No.4-Dr. Rama Sharma atSharma Medical Centre since September 2005.

5.2 On 02.04.2005, at about 5.30 p.m., the Respondent No.2 hadGto undergo a caesarean section in view of the condition of PlacentaPrevia. 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.

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 careHto Maharaja Agrasen Hospital- Appellant No.1.

At the time of admission, the general condition of the baby waspoor, and was diagnosed as “32 weeks pre-term AGA with HMD”.The baby was treated in the Neo-natal ICU of the Paediatrics Unitand was put on ventilatory support, and Surfactant injections wereadministered 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, whichwas 27 days after birth.

The Discharge Slip issued by the Appellant No.1-Hospital to theComplainants 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: 29.04.2005Diagnosis: PT (32) with HMD with Neonatal Hyperbil with B/LPneumothorax Fungal Septicemia.

Condition at time of discharge: Satisfactory.

Consultants: Dr. G.S.Kochar /Dr. N. Jain 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.

A

B

C

D

E

F

G

H

A 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 MedicalCentre)

B

_____________

______-sd-____________

Consultant

Medical Officer ”

5.5 There is no advice to the Complainants to have the ROP testcarried out on the baby, who was born prematurely, in the DischargeCSlip. Post discharge, the Respondent No.2-Complainant brought the babyfor a follow up check-up on 04.05.2005 to the Paediatrics Unit of theGeneral OPD of the Appellant No.1-Hospital, when the baby was 4weeks and 4 days old. The baby was examined by the ConsultantPaediatricians - Dr. G.S. Kochhar and Dr. Naveen Jain/ Appellants No.D2 and 3.

As per the medical records, the Respondent No.1-baby wasfound to be stable, and Respondent No.2-Complainant was advised tocontinue breast feeding along with supplements.

It is pertinent to note that there was no advice or recommendationEfor ROP check-up on this date in the Medical Records produced bythe Appellant No.1 –Hospital.

5.6 On 13.07.2005, the Respondent No.2-Complainant broughtthe baby for a 2[nd] follow-up visit when he was over 3 months old tothe Paediatrics Unit of the General OPD of the Appellant No.1-Hospital.FThe Respondent No.1-baby was examined by Dr. Manoj on behalf ofDr. G.S. Kochhar. Dr. Manoj advised the Complainants for the BERAscan/test to be conducted.

It is pertinent to note that there was no advice for ROP check-up given even on this visit.

G

5.7 Respondent No.2-Complainant submits that sometime inNovember 2005, she noticed abnormal visual responses in theRespondent No.1 – baby. The Complainant asked for the medicalrecords of the baby to have his follow up treatment done.

The medical records were, however, not made available byHAppellant No.1-Hospital.

5.8 On 23.11.2005, Respondent No.2 – Complainant took thebaby to Nayantara Eye Clinic, Delhi where an ultrasound (B. Scan)was conducted. It was advised that eye-ointment and eye-drops beadministered 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 furtherexamination where the ultrasound (B. Scan) was conducted. The ShroffCharity Eye Hospital diagnosed that the baby had ROP Stage 5 in botheyes, which is a case of total retinal detachment.

5.10 Respondent No.2-Complainant approached RespondentNo.4- Dr Rama Sharma, the Gynaecologist of Sharma Medical Centreto explain how the medical condition of Respondent No.1-baby hadremained un-diagnosed. Dr. Rama Sharma shifted the blame to theAppellants.

5.11 On 07.12.2005, Respondent No.2-Complainant took the babyto the Appellant No.1-Hospital in the Private OPD Consultation. Dr.Sanjay Bhavan, Ophthalmologist examined Respondent No.1-baby. Thecase was referred to Dr. Lingam Gopal of Shankara Netralaya atChennai for an urgent appointment.

5.12 On 07.01.2006, the Respondent No.1-baby was taken byhis mother- Respondent No.2-Complainant to Dr. Rajendra PrasadCentre for Ophthalmic Sciences at AIIMS, New Delhi for OPDConsultation. After examination, it was confirmed that it was a caseof ROP Stage 5.

5.13 On 24.02.2007, the Respondent No.2-Complainant wasconstrained to issue a legal notice to the Appellant No.1-Hospital toprovide the entire in-patient medical records of the baby in compliancewith Regulation 1.3.2 of the Indian Medical Council (ProfessionalConduct, Etiquettes and Ethics) Regulations, 2002 (“IMCRegulations”).

5.14 The Appellant Nos. 1 to 3 failed to provide the in-patientmedical records to the Complainant despite the issuance of legal notice.

5.15 The Respondent No.2-Complainant then filed a complaintwith the Delhi Medical Council for a direction to the Appellant No.1-Hospital to provide the complete in-patient medical records pertainingto the baby.

A

B

C

D

E

F

G

H

A5.16 Eventually, the Appellant No.1-Hospital provided a copy ofthe medical records of the baby alongwith the Case Summary on14.06.2007 after more than 2 years of discharge from the AppellantNo.1-Hospital.

5.17 The Respondent No.2-Complainant contends that when sheBreceived these records, she was shocked to find that the medicalrecords mentioned an alleged ROP check-up was conducted on26.04.2005 by Appellant No.4-Dr. S.N. Jha. The Respondent No.2-Complainant contends that no ROP examination was conducted byAppellant No.4-Dr. S.N. Jha.

C5.18 On 04.08.2007, the Respondent No.2-Complainant addresseda letter to the Medical Superintendent of Appellant No.1- Hospital. Therelevant extract of the said letter is reproduced hereinbelow for readyreference:

“Under the above enclosure we have received photocopiesDof some Medical Record (uncertified) along with a casesummary dated 13-06-2007.

The said summary states that on 26-04-2007 ROPexamination on our baby was conducted in theOphthalmological unit of your hospital and reviewEexamination after two weeks was also advised.

We are rather intrigued by this observation as it does notfind mention anywhere in the Discharge Summary nor is thereany follow up advise.

Since both of us do not recollect any such examinationFconducted in our presence or review advise and the saidmedical record is also totally silent about it, kindly provideus with the entire record of the Ophthalmological unit, nameof the Paediatric Ophthalmologist who had conducted the”ROP examination and his written report dated 26-04-2006.

G

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-Hup was requested on 25-04-2005 to rule out ROP.

The ophthalmological examination was done in the Nurseryon 26-04-2005 morning by Dr. S. N. Jha, Senior ConsultantOphthalmologist. The written report of the Ophthalmologicalunit is stated on page no.102 of the case record.”

5.20 On 19.11.2007, Respondent Nos. 1 to 3 filed a ConsumerComplaint under Section 21 (a)(i) of the Consumer Protection Act, 1986before the National Commission [Consumer Case No. 119 Of 2007]claiming compensation of Rs. 1,30,25,000/- alleging medical negligenceand deficiency in service on the part of Appellant Nos. 1 to 4, andRespondent No.4- the Gynaecologist, for compensation for thepermanent physical disability, mental agony, and social stigma, deprivationof normal human life, companionship, torture and harassment etc.

5.21 The Delhi Medical Council vide order dated 14.12.2007issued a warning to the Appellant No.1-Hospital for the delay insupplying the medical records of the Respondent No.1-baby to theComplainant.

5.22 The National Commission vide Order dated 29.02.2012directed the Medical Board, AIIMS to give an expert opinion in thematter.

5.23 The Medical Board of AIIMS submitted its Report dated11.05.2012 to the National Commission. The Report states that as perstandard guidelines (National Neonatology Forum), new born babies whoare born at 32 weeks’ gestation or less, should have their eyes examinedat 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 inaccordance with established protocol. If ROP screening does not revealany ROP, then repeat examination should be performed after 2 weeks.The Report goes on to say that after discharge, the baby was broughttwice to the General OPD of the Appellant No.1- Hospital. There isno record to show that the baby was brought after 2 weeks ofdischarge to the Paediatrics OPD clinic when subsequent progressioncould been assessed and treated on time.

6. The National Commission vide its Judgment and Order dated10.05.2016 (bench comprising of Presiding Member J.M. Malik J. andDr. S.M. Kantikar, a qualified doctor) held as under:

A

B

C

D

E

F

G

H

A

A6.1 The National Commission was not convinced that the ROPscreening 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 ROPexamination, the method and instruments used, drugs (midrates/tropicamide)/ anaesthesia used during ROP testing. The Ophthalmologisthas not mentioned any details of the dilation of the pupils, and theBfindings by indirect ophthalmoscope, and the intra-ocular or extra retinalfindings. The standard ROP screening protocol was not followed. TheNurses’ Daily Records from 25.04.2005 to 27.04.2005 does not showthat 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 theCROP screening and the follow-up findings.

6.3 The National Commission held that the sequence of eventsleading to ROP usually takes about 4 to 5 weeks, except in a smallsub-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,Dand possibly even earlier for infants at higher risk (2 to 3 weeks). It isstrongly recommended that one session of retinal screening be carriedbefore Day 30 of the life of any premature baby. The examinationshould be done with the dilation of the pupil with Tropicamide 0.5% to1% with Phenylapinephrine 2.5%.

E

E

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 andthe NICU nurse. There is no medical documentation of the ROPscreening procedural details. The O.P. No. 5 should have performedFthe retinal examination with binocular indirect opthalmoscope on dilationof the pupil with scleral depression to ascertain avascular zone at theperiphery of the retina. The National Commission found that nothingwas forthcoming from Page 102 of the medical records. It appears tobe a bare visual examination done by O.P. No. 5 in haste to cover upthe case.G

The National Commission was of the considered view that neitherthe ROP screening was performed, nor was any advice for follow upof ROP given to the Respondent No.2-Complainant/mother.

6.5 The National Commission held that the Respondent No.1-HMaster Rishabh had been rendered blind for life, which could never really be compensated in monetary terms. The baby had lost his fatherduring the pendency of proceedings in 2013. The Respondent No.2-Complainant had been pursuing the consumer complaint single-handedlyfor 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 averageinflationary principle at a conservative rate of 1% p.a., keeping in mindthe fluctuations over the next 59 years. The National Commissionawarded an amount of Rs. 10,00,000/- to the Respondent No.2-Complainant/mother who would have to take care of the blind childthroughout her life. A further amount of Rs. 1,00,000/- was awardedtowards costs of litigation. The National Commission held O.P. Nos. 2to 5/ Appellant Nos. 1 to 4 to be jointly and severally liable to pay thetotal amount of Rs. 64,00,000/- within 2 months of the Order. The entireamount would carry interest at the rate of 9% p.a.

Out of the total compensation awarded, Rs. 50,00,000/- wouldbe kept in a Fixed Deposit with a nationalised bank till Respondent No.1attained the age of majority. The periodic interest on the deposit wouldbe paid to the Respondent No.2-Complainant/ mother till the childattained 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 NationalCommission, C.A. No. 6619 of 2016 was filed by the Hospital and theDoctors before this Court. The Complainants have filed Civil AppealNo. 9461 of 2019 (Diary No. 15393 of 2019) before this Court forenhancement of compensation.

This Court vide interim Order dated 29.07.2016 ordered stayof the operation of the impugned Judgment, subject to the AppellantNo.1-Hospital depositing 50% of the amount awarded by the NationalCommission in this Court within 6 weeks.

On 07.09.2016, the Appellant No.1-Hospital deposited an amountof 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 tomature on 17.02.2020.

8. We have heard the learned Counsel for all the parties andperused the original Medical Records, pleadings and written submissionsfiled by the parties.

A

B

C

D

E

F

G

H

A9. The learned counsel for the Appellants viz. the Hospital andDoctors inter alia submitted that:

9.1 Respondent No.1-baby was pre-term (32 weeks) with signsof HMD, and was admitted in Appellant No.1-Hospital on 02.04.2005in a critical condition with little chance of survival. The baby wasBadmitted in the neo-natal ICU, and had to be immediately placed onventilatory support for 10 days. As per standard protocol, regularinvestigations and Arterial Blood Gas (ABG) analysis were performed.Blood component therapy was given. The critical condition of the babyand possible neuro-development, visual and hearing sequel was informedto the parents. The baby was given utmost care and attention by theCDoctors of the Appellant No.1-Hospital.

9.2 As per protocol, ophthalmological examination was advisedon 25.04.2005 to rule out ROP, as recorded at Page 100 of the medicalrecords. Appellant No.4-Dr. S.N. Jha, the Senior Ophthalmologistconducted the ROP test on 26.04.2005, who found no ROP inDRespondent No.1-baby, as recorded by Appellant No.4 in his handwritingat page 102 of the medical records. It was submitted that the AppellantNo.4 had advised a further review/check-up after 2 weeks in thespeciality OPD on Wednesay/Saturday between 4 p.m. to 6 p.m. Theparents of Respondent No.1-baby were explained all the problems whichEmay develop in a premature baby.

9.3 As per the Discharge Summary at Page 109 of the medicalrecords, the Complainants were advised to bring the Respondent No.1-baby for a ROP and BERA check-up to the speciality OPD onWednesday/Saturday at 4 pm.F

9.4 The Respondent No.2-Complainant brought the baby to theGeneral OPD of Appellant No.1- Hospital on 04.05.2005 after 8 daysof the first ROP check-up, and not after 2 weeks as advised.Thereafter, the baby was brought on 13.07.2005, which was after 2months again to the General OPD.

G

9.5 The Appellants relied on the Report of the Medical Boardconstituted by AIIMS, which had vide their Report dated 11.05.2012held that the baby was not brought to the Paediatrics OPD Clinic onWednesdays or Saturdays at 4 P.M. after two weeks of discharge, whensubsequent progression of ROP could have been assessed and treatedHon time.

9.6 The Appellant No.4/O.P. No.5 - Dr. S.N. Jha, a SeniorOphthalmologist was engaged with the Appellant No.1- Hospital from1997 to 2010. It was submitted on his behalf that on 25.04.2005, thePaediatrics Dept. of the Appellant No.1-Hospital had requisitioned himto perform the ROP examination. The Appellant No.4 submits that theROP was duly conducted by him on 26.04.2005. His finding is recordedat Page 102 of the medical records, wherein he has recorded that hedid not find any evidence of ROP at that stage. It was further submittedthat it was not required to record the method of dilation of the pupiland use of indirect ophthalmoscope. The standard medical literatureestablishes that ROP manifests itself after 4 weeks of post-natal age.In view thereof, the finding of Appellant No.4, who examined the babyonly on 26.04.2005 i.e. when the baby was 24 days old, there was noevidence of ROP, cannot be faulted.

9.7 It was further submitted that the only requirement forconducting an ROP examination is a chemical solution of Tropicamideand Phenylephrine to dilate the eyes, which was available in the nursery,and an indirect ophthalmoscope, which is available with allophthalmologists. who have specialised in the care of retina, and arecompetent to carry ROP examination. It was submitted that theAppellant No.4 was not required to record the procedure for conductingthe ROP examination, which is merely the retinal examination of thebaby 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 twosubsequent visits by the Respondent No.2-Complainant with the babyon 04.05.2005 and 13.07.2005 in the Ophthalmology department, eventhough he would have been available in the speciality OPD onWednesdays/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/DiaryNo. 15393 of 2019), inter alia submitted that the Respondent No.1-baby has become permanently blind on account of the gross medicalnegligence by the Hospital, and the three specialist doctors i.e twoconsultant Paediatricians, and the Ophthalmologist, for the followingreasons:

10.1 The Appellant Nos.1 to 4 did not at any stage conduct theROP examination of the baby, who was a premature baby, nor wasthe family ever informed about the high risk of ROP in a prematurebaby, and the necessity for regular check-ups.

AB

C

D

E

F

G

H

A10.2 The Appellant No.1-Hospital had deliberately withheld themedical records for over two years after discharge. At the time ofdischarge on 29.04.2005, the Complainants were provided with aDischarge Slip, which did not disclose any instructions advising that theinfant be brought for ROP examination (the Discharge Slip in Para 5.4above).B

In this Discharge Slip, there is no advice of ROP having beenconducted, or follow-up of ROP, nor was the risk of ROP explainedby the Appellant Nos. 2 and 3 to the Respondent No.2-Complainant.

10.3 The Complainants have strongly contended that parts of theCmedical records, which were provided after 2 years in 2007, had beenfabricated and interpolated as an afterthought to escape liability.

It was submitted that a bare perusal of the noting dated26.04.2005 made in the medical record by Appellant No.4- theOphthalmologist, shows that is merely a scribble, and is illegible. TheComplainants have strongly refuted the case of the Appellants that theDROP was conducted by Appellant No.4 on 26.04.2005.

The Complainants have supported their submission on the basisof :(i) the progress sheets, which contain no details of the ROPexamination; (ii) there is no mention of the ROP examination in theNurses’ Daily Record; (iii) ROP exam is conducted with the help ofEdilation by using Cyclopentolate (0.5%) and Phenylephrine (2.5%) dropsto be applied 2 to 3 times, about 10-15 minutes apart. There is no recordwith respect to the administration of the these medicines to the baby;(iv) there is no mention of the ROP test in the Discharge Slip of29.04.2005;F

10.4 The Complainants contended that if the standard protocolhad been carried out by the Doctors, the ROP would have been detectedat an early stage, and could have been cured, since it is medically knownto be reversible at the early stages.

On account of the negligence of the Appellant Nos. 1 to 4, theGROP was discovered only at Stage 5, by the Shroff Charity EyeHospital, when the baby was 8 months old. By this time, the ROPbecame irreversible, and resulted in total blindness of the RespondentNo.1-baby.

10.5 It was further urged that the quantum of compensationHawarded by the National Commission was grossly inadequate and insufficient. The National Commission failed to take into accountvariables such as the additional educational expenses in special schools,transportation costs, costs of purchasing, maintaining and upgradingVisual Aid/Assistive Devices, costs of permanent nursing/attendant careand miscellaneous medical expenses. It was further contended that theaverage rate of inflation taken by the National Commission i.e. aconservative rate of 1 % per annum for the next 59 years, was grosslyundervalued. The Complainants sought enhancement of thecompensation 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 inmaking the Medical Records of Respondent No.1-Master Rishabhavailable to the Respondent No.2-Complainant. Regulation 1.3.2 of theIMC Regulations casts a statutory obligation upon every doctor/hospitalto provide medical records within 72 hours of the request being madeby the patient.

11.1.1 The Medical Council of India has framed the IMCRegulations with the previous approval of the Central Government, inexercise of the powers conferred by Section 20A read with Section33(m) of the Indian Medical Council Act, 1956. The IMC Regulationscame 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 providesas under:

“1.3 Maintenance of medical records:

1.3.1 Every physician shall maintain the medical recordspertaining to his /her indoor patients for a period of 3 yearsfrom the date of commencement of the treatment in a standardproforma laid down by the Medical Council of India andattached as Appendix 3.

1.3.2. If any request is made for medical records either bythe patients / authorised attendant or legal authoritiesinvolved, the same may be duly acknowledged anddocuments shall be issued within the period of 72 hours.

A

B

CD

E

F

G

H

A

1.3.3 A Registered medical practitioner shall maintain aRegister of Medical Certificates giving full details ofcertificates issued. When issuing a medical certificate he /she shall always enter the identification marks of the patientand keep a copy of the certificate. He / She shall not omitto record the signature and/or thumb mark, address and atleast one identification mark of the patient on the medicalcertificates or report. The medical certificate shall beprepared as in Appendix 2.

B

1.3.4 Efforts shall be made to computerize medical recordsfor quick retrieval.

C

As per Regulation 7, if the doctor refuses or fails to provide themedical records within 72 hours when the patient or his/her authorisedrepresentative makes a request as per the Regulation 1.3.2, the saidDact of commission or omission would constitute professional misconductrendering him/her liable for disciplinary action and punishment underRegulation 8.

Regulations 7 and 8 provide as follows:

“7. MISCONDUCT

E

The following acts of commission or omission on the part ofa physician shall constitute professional misconductrendering him/her liable for disciplinary action 7.1 Violation of the Regulations: If he/she commits anyviolation of these Regulations.

F

7.2 If he/she does not maintain the medical records of his/her indoor patients for a period of three years as perregulation 1.3 and refuses to provide the same within 72hours when the patient or his/her authorised representativemakes a request for it as per the regulation 1.3.2.

G

8. PUNISHMENT AND DISCIPLINARY ACTION

8.1 It must be clearly understood that the instances ofoffences and of Professional misconduct which are givenabove do not constitute and are not intended to constitute acomplete list of the infamous acts which calls for disciplinary H

action, and that by issuing this notice the Medical Councilof India and or State Medical Councils are in no wayprecluded from considering and dealing with any other formof professional misconduct on the part of a registeredpractitioner. Circumstances may and do arise from time totime in relation to which there may occur questions ofprofessional misconduct which do not come within any ofthese categories. Every care should be taken that the codeis not violated in letter or spirit. In such instances as in allothers, the Medical Council of India and/or State MedicalCouncils have to consider and decide upon the facts broughtbefore the Medical Council of India and/or State MedicalCouncils.

8.2 It is made clear that any complaint with regard toprofessional misconduct can be brought before theappropriate Medical Council for Disciplinary action. Uponreceipt of any complaint of professional misconduct, theappropriate Medical Council would hold an enquiry and giveopportunity to the registered medical practitioner to be heardin person or by pleader. If the medical practitioner is foundto be guilty of committing professional misconduct, theappropriate Medical Council may award such punishment asdeemed necessary or may direct the removal altogether orfor a specified period, from the register of the name of thedelinquent registered practitioner. Deletion from the Registershall be widely publicized in local press as well as in thepublications of different Medical Associations/ Societies/Bodies.

8.3 In case the punishment of removal from the register isfor a limited period, the appropriate Council may also directthat the name so removed shall be restored in the registerafter the expiry of the period for which the name was orderedto be removed.

8.4 Decision on complaint against delinquent physician shallbe taken within a time limit of 6 months.

8.5 During the pendency of the complaint the appropriateCouncil may restrain the physician from performing theprocedure or practice which is under scrutiny.

ABC

D

E

F

G

H

A8.6 Professional incompetence shall be judged by peer groupas per guidelines prescribed by Medical Council of India.”

11.1.3 The IMC Regulations framed by the Medical Council ofIndia are binding on all medical professionals, who are under a statutoryobligation to provide medical records to the patients or their attendants.BAll hospitals, whether Government or private are liable to maintainthe medical records, and provide the same to patient or their attendantswithin 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 registeredCmedical practitioners and hospitals/nursing homes to strictly adhere toRegulation 1.3.2 of the IMC Regulations. The failure to comply withthe same would constitute professional misconduct and entail disciplinaryaction.

11.1.5 This Court in Federation of Obstetrics & GynaecologicalDSocieties of India v. Union of India[1] held that “considering the natureof services rendered by medical professionals, proper maintenance ofrecords is an integral part of the medical services.”

11.1.6 The Respondent No.2-Complainant submitted that she hadmade several requests for being provided the in-patient records forEfurther evaluation/examination of the baby, which was not madeavailable to her for over 2 years after his discharge in April 2005 fromthe Appellant No.1- Hospital. Respondent No.2-Complainant had to runfrom one hospital to another so as to ascertain why her son hadabnormal visual responses. Despite repeated requests, the MedicalRecords were withheld by the Hospital. The Respondent No.2-FComplainant had a legal notice issued on 24.02.2007 to the AppellantNo.1-Hospital requesting for the entire in-patient medical record of herchild, and made a complaint to the Delhi Medical Council. The AppellantNo.1 -Hospital eventually provided the medical record on 14.06.2007.

11.1.7 The Delhi Medical Council vide Order dated 14.12.2007Gissued a warning to the Appellant No.1-Hospital for the delay insupplying the medical records of Respondent No.1 to the Complainant.We find that withholding the medical records of RespondentNo.1, who was a premature baby, for a period of over 2 years, would H1 (2019) 6 SCC 283

constitute grave professional misconduct under Regulation 7, apart frombeing 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 emergingcauses of childhood blindness. A premature baby is not born with ROP.At the time of birth, particularly in the case of premature babies, theretina is immature, which is natural at this stage. It is the post-nataldevelopments in the retinal vessels which could lead to ROP.

11.2.1 As per medical literature, all infants with a birth weightof less than 1500 grams, or gestational age of less than 32 weeks, arerequired to be mandatorily screened for ROP, which usually takes about4 to 5 weeks to be diagnosed. The routine screening should begin nolater than 4 weeks after birth, and possibly even earlier for infants athigher risk (2 to 3 weeks).

The standard of care is to be judged in the light of the protocolsand standard procedures prevailing on the date of birth, and not on thedate of trial.[ 2]

11.2.2 In Programme Planning and Screening Strategy inRetinopathy of Prematurity[3], published in March 2003 co-authored byDrs. Subhadra Jalali, MS; Raj Anand, MS; Harsh Kumar, MD; MangatR Dogra, MS; Rajvardhan Azad, MD,FRCS (Ed); Lingam Gopal, MShave opined that:

“There are several compelling reasons to have a screeningprogramme for ROP. Firstly, the premature child is not bornwith ROP and retinal disease is not present at birth.Eachprematurely born child has a potential for normal vision,even if the retina is immature at birth.Screening for ROPaims to identify those infants who have reached or have the 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 andScreening Strategy in Retinopathy of Prematurity, Indian J Ophthalmol 2003 (March2003), Vol. 51, Pages 89-99

A

B

C

D

E

F

G

H

A

B

C

D

E

potential to reach threshold ROP, which if untreated, may-cause blindness or visual impairment. This has medicolegalimplications. There are indefensible legal repercussionsshould an infant develop ROP and retinal detachment, buthad not received eye examination. Secondly, the grief andthe personal tragedy for the family is tremendous, besidesthe economic burden of such childhood blindness. The aimof screening premature babies for ROP is to detect alltreatable neonates, with minimal expense of time andresources. This also aims at not screening those babies whoare unlikely to get a severe form of ROP. Early recognitionof ROP by screening provides an opportunity for effectivetreatment…. The criteria for screening babies are based on–two critical factors the birth weight and the gestationalage.”

A well organised screening strategy and timely intervention canto a large extent prevent blindness due to ROP. Extensive clinical trialsand publications[4] have established that among other factors, gestationperiod and low birth weight are critical in the pathophysiology of ROP.If detected early and treated with peripheral retinal cryopexy or laser, 4 Palmer EA, Flynn JT, Hardy RJ, Phleps DL, Phillips CL, Schaffer DB, Incidenceand early course of retinopathy of prematurity. Ophthalmology 1991;98:1628-40;Fielder AR, Shaw DF, Robinson J, Ng YK, Natural history of retinopathy ofprematurity: A prospective study. Eye 1992;6:233-42; STOP-ROP Multicentre StudyGroup. Supplemental therapeutic oxygen for prethreshold retinopathy of prematurity(STOP-ROP), a randomised controlled trial: Primary outcomes. Paediatrics2000;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.

F

5 Cryotherapy for Retinopathy of Prematurity Cooperative Group. Multicentre trialof cryotherapy for retinopathy of prematurity-Three-month outcome, ArchOphthalmol 1990;108:195-40 ; Cryotherapy for Retinopathy of PrematurityGCooperative Group. Multicentre trial of cryotherapy for retinopathy of prematurity-3½ years outcome for both structure and function, Arch Ophthalmol 1993;111:339-44. Tsisis T, Tasman W, Mcnamara JA, Brown G, Vander J. Diode laserphotocoagulation for retinopathy of prematurity, Trans Am Ophthal Soc 1997;95:231-36.; Despande DA, Chaturvedi M, Gopal L, Ramachandram S, ShanmugasundaramR. Treatment of threshold retinopathy of prematurity, Indian J OphthalmolH1998;46:15- 19.

ROP blindness can be prevented to some extent.[5] Once the case crossesStage 3, in very few cases can the sight be saved even by extensivevitreoretinal surgery.[6]

11.2.3 This Court considered this issue in a similar case in V.Krishnakumar v. State of Tamil Nadu[7]. In that case, a prematurefemale baby was born in the 29[th] week of pregnancy. The infantweighed only 1.25 kgs at birth. The doctors failed to examine the babyfor ROP, or advise the parents that the baby was required to be seenby a paediatric ophthalmologist since there was a possibility ofoccurrence of ROP, so as to avert permanent blindness. The dischargesummary neither disclosed a warning to the infant’s parents of thepossibility that the infant might develop ROP for which certainprecautions must be taken, nor any signs that the doctors werethemselves cautious of the dangers of development of ROP. Thedoctors attempted to cover up their gross negligence of not havingexamined the infant for the onset of ROP, which is a standardprecaution for a well-known condition in such a case.

This Court after reviewing and analysing the medical literatureon ROP, observed that the problem occurs in infants who areprematurely born, and who have been administered oxygen and bloodtransfusion upon birth. If detected during early stages, it can beprevented. In para 4 of the judgment, this Court held that:

“4. ….It is said that prematurity is one of the most commoncauses of blindness and is caused by an initial constrictionand then rapid growth of blood vessels in the retina. Whenthe blood vessels leak, they cause scarring. These scars canlater 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 literaturesuggests that Stage 3 can be treated by Laser or Cryotherapytreatment in order to eliminate the abnormal vessels. Evenin Stage 4, in some cases, the central retina or macula remains 6 Cherry TA, Lambert SR, Capone-A Jr. Electroretinographic findings in stage Vretinopathy of prematurity after retinal reattachment, Retina 1995;15:21-24; NoorilySW, Small K, Juan E de, Machemar R. Scleral bucking surgery for stage 4Bretinopathy of prematurity, Ophthalmology 1992;99:263-68.7 (2015) 9 SCC 388 : (2015) 4 SCC (Civ) 546

A

B

C

D

E

F

G

H

A

intact thereby keeping intact the central vision. When thedisease is allowed to progress to Stage 5, there is a totaldetachment and the retina becomes funnel shaped leadingto 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 checkup for ROP for an infant is:

B

“All infants with a birth weight less than 1500 gm orgestational age less than 32 weeks are required to be”screened for ROP. [ AIIMS Report dated 21-8-2007]

5. It is undisputed that the relationship of birth weight andgestational age to ROP as reproduced in NCDRC’s order isas follows:

C

“Most ROP is seen in very low birth weight infants, and theincidence is inversely related to birth weight and gestational-age. About 7080% of infants with birth weight less thanD1000 gm show acute changes, whereas above 1500 gm birthweight the frequency falls to less than 10%.”

6. …. It is further observed that ROP is a visually devastativedisease that often can be treated successfully if it isdiagnosed in time.”

E

This Court relied upon a Report dated 21.08.2007 of the All IndiaInstitute of Medical Sciences, New Delhi comprising of five members,of which, four were ophthalmological specialists. The Board opined asunder:F

“A premature infant is not born with Retinopathy ofPrematurity (ROP), the retina though immature is normal for-this age. The ROP usually starts developing 24 weeks afterbirth when it is mandatory to do the first screening of thechild. The current guidelines are to examine and screen thebabies with birth weight<1500 gm and <32 weeks-gestational age, starting at 31 weeks postconceptional age(PCA) or 4 weeks after birth, whichever is later. Around adecade ago, the guidelines in general were the same and the--premature babies were first examined at 3133 weeks post-conceptional age or 26 weeks after birth.

G

H

There is a general agreement on these above guidelines ona national and international level. The attached annexureexplains some authoritative resources and guidelinespublished in national and international literature especiallyover the last decade.

However, in spite of ongoing interest world over in screeningand management of ROP and advancing knowledge, it maynot be possible to exactly predict which premature baby willdevelop ROP and to what extent and why.”

A

B

C

On a review of the literature on ROP, the Supreme Court in V.Krishnakumar (supra) set out the screening guidelines as follows:

YearSourceFirst screeningWho to screen2006 American Academy of 31 weeks PCA or <1500 gm birth DPaediatrics et al. 4 weeks after weight or <32 weeks birth, whichever GA or higher. is later.2003 Jalali S et al. Indian J 31 weeks PCA or <1500 gm birth Ophthalmology 3-4 weeks after weight or <32 weeks birth, whichever GA or higher. is earlier. E2003 Azad et al. JIMA 32 weeks PCA or <1500 gm birth 4-5 weeks after weight or <32 weeks birth, whichever GA or higher. isearlier.2002 Aggarwal R et al. 32 weeks PCA or <1500 gm birth Indian J. Paediatrics 4-6 weeks after weight or <32 weeks Fbirth, whichever GA. is earlier. 1997 American Academy of 31-33 weeks PCA <1500 gm birth Paediatrics et al. or 4-6 weeks after weight or <28 weeks birth. GA or higher. 1996 Maheshwari R et al. 32 weeks PCA or <1500 gm birth GNational Med. J. India 2 weeks after weight or <35 weeks birth, whichever GA or 02>24 hrs. is earlier. 1988 Cryotherapy ROP 4-6 weeks after <1250 gm birth Group birth. weight.

H

AThis Court observed that ROP starts developing 2 to 4 weeksafter birth when it is mandatory to do the first screening of the child.As per the report of AIIMS “it may not be possible to exactly predictwhich premature baby will develop ROP and to what extent andwhy”. This would necessitate the need for a check-up in all such cases.

B11.2.4 It is clear from the above medical literature that ROP isa visually progressive disease, which can be treated successfully if itis diagnosed on time. ROP advances through 5 stages. Medicalliterature suggests that Stage 3 can be treated by Laser or Cryotherapytreatment in order to eliminate the abnormal vessels. Even at Stage 4,in some cases, the central retina or macula remains intact therebyCkeeping intact the central vision. When the disease progresses to Stage5, there is a total detachment, and the retina becomes funnel shaped,leading to blindness.

11.2.3 We have carefully perused the original Medical Recordsof the Appellant No.1-Hospital, which were provided in a sealed coverDto the Court.

We find that there is an entry at Page 100 of the medical recordsdated 25.04.2005 recorded at 9:00 a.m. which reads as under:

“ 25/4/05

E 9 AMStable

Wt: 1.56 kgAccepting cup feedsS/E – NADD19 of Inj Amphocan F

Plan for Discharge tomorrow

Adv:

-Breast feeds

-Cont. rest

G

-”ROP Checkup (Dr Jha)

At the bottom of page 102 of the medical records, there is anotherentry dated 26.04.2005, which reads as under:

“

26/4 by Dr. SNJ

H

No ROP

” Review, 2 weeks.

The said noting is signed by Dr. S.N. Jha – Appellant No.4. Thereis, however, no time mentioned against this noting.

A visual examination of the original medical records/TreatmentSheet shows that this entry is not recorded in the same sequence asall previous and subsequent notings. The entries recorded at Page 100and 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 madebefore and after this entry. There is no time of the ophthalmologicalexamination by Appellant No.4-Dr. S.N. Jha on 26.04.2005 mentionedin the record, unlike all other notings by other doctors, who haveexamined the patient, where the time is clearly recorded.

On the next page i.e. page 103 of the medical record, it ismentioned as “Day 28” i.e. 26.04.2005 on the top of the page. Thefirst entry on that date is recorded at 10.30 am. This would indicatethat the baby was not examined prior to 10.30 a.m. by any doctor.

There is no contemporaneous record to corroborate that ROPscreening was done by Appellant No.4 on 26.04.2005. The Nurses’ DailyRecord or Treatment Sheet do not mention that the dilation of the pupilsof 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 onbehalf of Appellant No.4- Dr. S.N. Jha about the approximate time atwhich the ROP check-up was done by him on 26.04.2005. The counselwas unable to specify the time at which the baby was examined byhim.

11.2.6 The Respondent No.1-baby was discharged on 29.04.2005.The Complainants were provided with a Discharge Slip. The DischargeSlip does not contain any advice for a mandatory follow-up for ROP.Rather, the Discharge Slip only advised the Complainant to bring theRespondent No.1 for a review to the Paediatrics OPD on Wednesdayor Saturday at 4 P.M.

11.2.7 The Counsel for the Hospital and the Doctors contendedthat post-discharge, the Respondent No.2-Complainant did not bring thebaby to the speciality Paediatric OPD for a check-up as advised in theDischarge Summary.

A

BC

D

E

F

G

H

A11.2.8 We have seen the original medical records produced bythe Appellant No.1-Hospital, and find that on both occasions, i.e.04.05.2005 and 13.07.2005, the Complainants went correctly to thePaediatrics Unit of the General OPD. Hence, the contention of theAppellants is liable to rejected as being completely baseless.

B11.2.9 The Complainant took the baby for a follow up check-uppost-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 on04.05.2005. In the Treatment Sheet, there is no recommendation to haveCROP test done, nor was the patient advised to come back after twoweeks. The noting on 04.05.2005 is extracted hereinbelow for readyreference:

“MAHARAJA AGRASEN HOSPITAL

Punjabi Bagh, New Delhi – 26

D

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

EConsultants : Dr. G.S. Kochhar / Dr.Naveen Jain B/O POOJA SHARMA

Male. Age /Sex 1 Mths

Wt 1.65 kg

FFUC 32 weeks preterm AGA with HMD

with bilateral pneumothorax

with fungal septicemia.

Baby stable.

Adv.

G

- Breast feeds.

- Continue supplements.

—————————

Signature Dr. Naveen Jain. ”

H

The Complainant took the baby for a further follow-up on13.07.2005 to the Paediatrics-III Department. The baby was examinedby Dr. Manoj on behalf of Appellant No.2. The medical record evenon this date does not mention any advice for an ROP test. Theattending doctor only advised that a BERA test be done. The notingon 13.07.2005 is reproduced hereinbelow for ready reference:

“MAHARAJA AGRASEN HOSPITAL

Punjabi Bagh, New Delhi – 26Ph. 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 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 thePaediatrics Unit of the General OPD Clinic at the chronological ageof 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 theAppellant No.4 – Ophthalmologist to conduct the ROP test.

11.2.10 We find that the ROP was neither advised, nor carriedout at all by the Appellant No.1-Hospital, or Appellant No.4-Dr. S.N.Jha, the Senior Ophthalmologist, throughout the period of hospitalisationof the baby, or even after discharge. The baby was born in the 32[nd]gestational week, and was 1.49 kgs at birth. As per standard protocol, A

B

C

D

E

F

G

H

Athe ROP screening ought to have been done between 3-4 weeks frombirth. The baby remained admitted for 27 days in the Hospital from02.04.2005 to 29.04.2005. There is no justification whatsoever why themandatory screening of ROP was not done for the baby, while he wasunder the direct care and supervision of the Appellants.

BWe affirm the findings of the National Commission of grossnegligence by the Appellant Nos. 2 to 4-Doctors, and deficiency ofservice 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 itCwas 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 theTreatment Sheet (at pages 100 and 102 of the original Medical Records)Dseems to be an interpolation done subsequently to cover up the failureof the Hospital and the Doctors to advise or conduct the mandatoryROP check-up and follow-up protocol.

The second point contained in the AIIMS Report that the babywas not taken to the Paediatrics OPD is wholly fallacious. We haveEseen the medical records, and find that the baby was, in fact, taken tothe Paediatrics Unit of the General OPD. Hence, the basis of theReport is misconceived, and cannot be relied upon.

11.3.2 It is well-settled that a court is not bound by the evidenceof an expert, which is advisory in nature. The court must derive its ownconclusions after carefully sifting through the medical records, andFwhether the standard protocol was followed in the treatment of thepatient. The duty of an expert witness is to furnish the Court with thenecessary scientific criteria for testing the accuracy of the conclusions,so as to enable the Court to form an independent opinion by theapplication of this criteria to the facts proved by the evidence of theGcase.[8] Whether such evidence could be accepted or how much weightshould be attached to it is for the court to decide.[9]

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

9 Malay Kumar Ganguly v. Dr. Sukumar Mukherjee, (2009) 9 SCC 221 : (2010) 2SCC (Cri) 299 : (2009) 3 SCC (Civ) 663; V. Kishan Rao v. Nikhil Super SpecialityHHospital, (2010) 5 SCC 513 : (2010) 2 SCC (Civ) 460

11.3.3 We accept the view taken by the National Commission indisregarding the opinion of the Medical Board constituted by AIIMS.

11.3.4 The Complainants have discharged the initial burden ofproof[10] by making out a case of clear negligence on the part of theAppellant No.1-Hospital and the Paediatric doctors under whose carethe baby was admitted, as also Appellant No.4 – Dr. S.N. Jha, the seniorOphthalmologist 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 conductedat any point of time, or that the Complainants were even advised toget 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 medicalprofessional; (2) failure to inform the patient of the risks involved; (3)the patient suffers damage as a consequence of the undisclosed riskby the medical professional; (4) if the risk had been disclosed, the patientwould have avoided the injury; (5) breach of the said duty would giverise to an actionable claim of negligence.

The cause of action for negligence arises only when damageoccurs, since damage is a necessary ingredient of this tort. In a complaintof medical negligence, the burden is on the complainant to prove breachof duty, injury and causation. The injury must be sufficiently proximateto the medical practitioner’s breach of duty. In the absence of evidenceto the contrary adduced by the opposite party, an inference of causationmay 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 anact of omission or commission by a medical professional of ordinaryprudence. Actionable medical negligence is the neglect in exercising areasonable degree of skill and knowledge to the patient, to whom heowes a duty of care, which has resulted in injury to such person. Thestandard to be applied for adjudging whether the medical professionalcharged has been negligent or not, in the performance of his duty, would 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 5611 Postgraduate Institute of Medical Education & Research v. Jaspal Singh, (2009) 7SCC 330 : (2009) 3 SCC (Cri) 399 : (2009) 3 SCC (Civ) 114

A

B

C

D

EF

G

H

Abe that of an ordinary competent person exercising ordinary skill in theprofession. The law requires neither the very highest nor a very lowdegree of care and competence to adjudge whether the medicalprofessional has been negligent in the treatment of the patient.[12]

11.4.3 The degree of skill and care required byBa medical practitioner stated in Halsbury’s Laws of England[13] is asfollows:- “22. Negligence.—Duties owed to patient. A person whoholds himself out as ready to give medical advice ortreatment impliedly undertakes that he is possessed of skillCand knowledge for the purpose. Such a person, whether heis a registered medical practitioner or not, who is consultedby a patient, owes him certain duties, namely, a duty of carein deciding whether to undertake the case; a duty of carein deciding what treatment to give; and a duty of care in hisadministration of that treatment. A breach of any of theseDduties will support an action for negligence by the patient.

35. Degree of skill and care required.—…To establish liabilityon that basis it must be shown (1) that there is a usual andnormal practice; (2) that the defendant has not adopted it;and (3) that the course in fact adopted is one no professionalEman of ordinary skill would have taken had he been acting”with ordinary care.

11.4.4 Lord Denning, in Hucks v. Cole[14], held that a medicalpractitioner would be liable only where his conduct falls below theFstandards of a reasonably competent practitioner in his field.

11.4.5 In earlier judgments, this Court referred to the Bolam testlaid down in Bolam v. Friern Hospital Management Committee[15]. In 12 Refer to Laxman Balkrishna Joshi (Dr.) v. Dr. Trimbak Bapu Godbole, (1969) 1GSCR 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

14 (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) 3SCC (Civ) 114

15 Bolam v. Friern Hospital Management Committee, (1957) 1 WLR 582: : (1957) 2HAll ER 118

this case, the doctor treating the patient suffering from mental illnesswas held not to be guilty of medical negligence by the Queen’s BenchDivision for failure to administer muscle-relaxant drugs and usingphysical restraint in the course of electro-convulsive therapy. McNair,J., in his opinion, explained the law in the following words[16]:

“… where you get a situation which involves the use of somespecial skill or competence, then the test as to whether therehas been negligence or not is not the test of the man on thetop of a Clapham omnibus, because he has not got this specialskill. The test is the standard of the ordinary skilled manexercising and professing to have that special skill. A manneed not possess the highest expert skill; it is well-establishedlaw that it is sufficient if he exercises the ordinary skill of”an ordinary competent man exercising that particular art.

The ratio of the Bolam case is that it is enough for the doctor toshow that the standard of care and the skill exercised by him was thatof an ordinary competent medical practitioner exercising an ordinarydegree of professional skill. McNair, J., held that[17]:

“… he [a Doctor] is not guilty of negligence if he has actedin accordance with a practice accepted as proper by aresponsible body of medical men skilled in that particularart.”

11.4.6 In the subsequent judgment rendered inEckersley v. Binnie[18], Bingham, L.J. explained the Bolam test in thefollowing words: (Con LR p. 79)

“From these general statements it follows that a professionalman should command the corpus of knowledge which formspart of the professional equipment of the ordinary memberof his profession. He should not lag behind other ordinaryassiduous and intelligent members of his profession in theknowledge of new advances, discoveries and developments 16 (WLR p. 586)

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

A

B

C

D

E

F

G

H

1220SUPREME COURT REPORTS

Ain his field. He should have such an awareness as anordinarily competent practitioner would have of thedeficiencies in his knowledge and the limitations on his skill.He should be alert to the hazards and risks in anyprofessional task he undertakes to the extent that otherordinarily competent members of the profession would beBalert. He must bring to any professional task he undertakesno less expertise, skill and care than other ordinarilycompetent members of his profession would bring, but needbring no more. The standard is that of the reasonableaverage.The law does not require of a professional man thatChe be a paragon combining the qualities of polymath andprophet. (Charlesworth & Percy, ibid., para 8.04)”

A medical professional should be alert to the hazards and risksin any professional task he undertakes to the extent that other ordinarilyDcompetent members of the profession would be alert. He must bringto any professional task he undertakes reasonable skill that otherordinarily competent members of his profession would bring.

11.4.7 This Court followed the Bolam test in Jacob Mathew v.State of Punjab[19] wherein it was held that the Bolam test has beenEwidely accepted as decisive of the standard of care required by medicalpractitioners, and it is invariably cited with approval before the courtsin India, and applied as a touchstone to test the pleas of medicalnegligence. The court summed up the law on medical negligence in thefollowing words:F

“48. (1) Negligence is the breach of a duty caused byomission to do something which a reasonable man guidedby those considerations which ordinarily regulate the conductof human affairs would do, or doing something which aprudent and reasonable man would not do. The definitionGof negligence as given in Law of Torts, Ratanlal & Dhirajlal(edited by Justice G.P. Singh), referred to hereinabove, holdsgood. Negligence becomes actionable on account of injuryresulting from the act or omission amounting to negligence attributable to the person sued. The essential components ofnegligence are three: ‘duty’, ‘breach’ and ‘resulting damage’.

(2) Negligence in the context of the medical professionnecessarily calls for a treatment with a difference. To inferrashness or negligence on the part of a professional, inparticular a doctor, additional considerations apply. A caseof occupational negligence is different from one ofprofessional negligence. A simple lack of care, an error ofjudgment or an accident, is not proof of negligence on thepart of a medical professional. So long as a doctor followsa practice acceptable to the medical profession of that day,he cannot be held liable for negligence merely because abetter alternative course or method of treatment was alsoavailable or simply because a more skilled doctor would nothave chosen to follow or resort to that practice or procedurewhich the accused followed. When it comes to the failure oftaking precautions, what has to be seen is whether thoseprecautions were taken which the ordinary experience ofmen has found to be sufficient; a failure to use special orextraordinary precautions which might have prevented theparticular happening cannot be the standard for judging thealleged negligence. So also, the standard of care, whileassessing the practice as adopted, is judged in the light ofknowledge available at the time of the incident, and not atthe date of trial.Similarly, when the charge of negligencearises out of failure to use some particular equipment, thecharge would fail if the equipment was not generallyavailable at that particular time (that is, the time of theincident) at which it is suggested it should have been used.

(3) A professional may be held liable for negligence on oneof the two findings: either he was not possessed of therequisite skill which he professed to have possessed, or, hedid not exercise, with reasonable competence in the givencase, the skill which he did possess. The standard to beapplied for judging, whether the person charged has beennegligent or not, would be that of an ordinary competentperson exercising ordinary skill in that profession. It is notpossible for every professional to possess the highest level A

B

C

D

E

F

G

H

Aof expertise or skills in that branch which he practices. Ahighly skilled professional may be possessed of betterqualities, but that cannot be made the basis or the yardstickfor judging the performance of the professional proceededagainst on indictment of negligence.

B(4)The test for determining medical negligence as laid downin Bolam case [(1957) 1 WLR 582 : (1957) 2 All ER 118]holds good in its applicability in India.”

11.4.8 In recent years, the Bolam test has been discarded by theCcourts in England. In Bolitho v. City and Hackney Health Authority[20],a five judge bench of the House of Lords ruled that[21] :

“… the court is not bound to hold that a defendant doctorescapes liability for negligent treatment or diagnosis justbecause he leads evidence from a number of medical expertsDwho are genuinely of opinion that the defendant’s treatmentor diagnosis accorded with sound medical practice.In theBolam[22] case itself, McNair J. stated that the defendant hadto have acted in accordance with the practice accepted asproper by a “ responsible body of medical men.” Later, ..Ehe referred to “a standard of practice recognised as properby a competent reasonable body of opinion.” Again, in thepassage which I have cited from Maynard’s[23] case, LordScarman refers to a “respectable” body of professionalopinion. The use of these adjectives—responsible,Freasonable and respectable—all show that the court has tobe satisfied that the exponents of the body of opinion reliedupon can demonstrate that such opinion has a logical basis.In particular in cases involving, as they so often do, theweighing of risks against benefits, the judge beforeaccepting a body of opinion as being responsible,Greasonable or respectable, will need to be satisfied that, informing their views, the experts have directed their minds to

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)

22 [1957] 1 W.L.R. 583, 587H23 [1984] 1 W.L.R. 634, 639

the question of comparative risks and benefits and havereached a defensible conclusion on the matter.”

Lord Browne-Wilkinson, speaking for the bench, in his opinionstated that despite a body of professional opinion approving the doctor’sconduct, a doctor can be held liable for negligence, if it is demonstratedthat the professional opinion is not capable of withstanding logicalanalysis[24]:

“These decisions demonstrate that in cases of diagnosis andtreatment there are cases where, despite a body ofprofessional opinion sanctioning the defendant’s conduct,the defendant can properly be held liable for negligence (Iam not here considering questions of disclosure of risk).Inmy judgment that is because, in some cases, it cannot bedemonstrated to the judge’s satisfaction that the body ofopinion relied upon is reasonable or responsible. In the vastmajority of cases the fact that distinguished experts in thefield are of a particular opinion will demonstrate thereasonableness of that opinion. In particular, where there arequestions of assessment of the relative risks and benefits ofadopting a particular medical practice, a reasonable viewnecessarily presupposes that the relative risks and benefitshave been weighed by the experts in forming their opinions.But if, in a rare case, it can be demonstrated that theprofessional opinion is not capable of withstanding logicalanalysis, the judge is entitled to hold that the body of opinionis not reasonable or responsible.

11.4.9 A five judge bench of the Australian High Court in Rogersv. Whitaker[25]identified the basic flaw involved in approaching thestandard 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 toexercise reasonable care and skill in the provision ofprofessional advice and treatment. That duty is a “single 24 (AC p.243 A-E)

25 (1992) 109 Aus LR 625: [1992]HCA 58

A

B

C

D

E

F

G

A

comprehensive duty covering all the ways in which a doctoris called upon to exercise his skill and judgment”26;itextends to the examination, diagnosis and treatment of the”patient and the provision of information.

“12. In Australia, it has been accepted that the standard ofBcare to be observed by a person with some special skill orcompetence is that of the ordinary skilled person exercisingand professing to have that special skill.[27] But, that standardis not determined solely or even primarily by reference to thepractice followed or supported by a responsible body ofopinion in the relevant profession or trade.[28]Even in theCsphere of diagnosis and treatment, the heartland of the skilledmedical practitioner, the Bolam principle has not always beenapplied. 29Further, and more importantly, particularly in the-field of nondisclosure of risk and the provision of adviceand information, the Bolam principle has been discardedDand, instead, the courts have adopted the principle that,while evidence of acceptable medical practice is a usefulguide for the courts, it is for the courts to adjudicate on whatis the appropriate standard of care after giving weight to “theparamount consideration that a person is entitled to makehis own decisions about his life”.

E

11.4.10 A seven-judge bench of the U.K. Supreme Court in amore recent judgment delivered in Montgomery v Lanarkshire HealthBoard[30]traced the changes in the jurisprudence of medical negligenceFin England, and held that “patients are now widely regarded aspersons holding rights, rather than as the passive recipients of thecare of the medical profession”. The Supreme Court noted that the

26 Sidaway v. Governors of Bethlem Royal Hospital [1985] UKHL 1; (1985) AC 87127 Cook v. Cook [1986] HCA 73; (1986) 162 CLR 376, at pp 383-384; PapatonakisGv. Australian Telecommunications Commission [1985] HCA 3; (1985) 156 CLR 7, atp 36; Weber v. Land Agents Board (1986) 40 SASR 312, at p 316; Lewis v. TressiderAndrews 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. AustralianRed Cross [1991] FCA 20; (1991) 99 ALR 601)H30 [2015] UKSC 11

courts have tacitly ceased to apply the Bolam test in relation to theadvice given by the doctor to their patients. The Court summed up thelaw on medical negligence in the following words:

“82. In the law of negligence, this approach entails a dutyon the part of doctors to take reasonable care to ensure thata patient is aware of material risks of injury that are inherentin treatment. This can be understood, within the traditionalframework of negligence, as a duty of care to avoidexposing a person to a risk of injury which she wouldotherwise have avoided, but it is also the counterpart of thepatient’s entitlement to decide whether or not to incur thatrisk.The existence of that entitlement, and the fact that itsexercise does not depend exclusively on medicalconsiderations, are important. They point to a fundamentaldistinction between, on the one hand, the doctor’s role whenconsidering possible investigatory or treatment options and,on the other, her role in discussing with the patient anyrecommended treatment and possible alternatives, and therisks of injury which may be involved.

87. The correct position, in relation to the risks of injuryinvolved in treatment, can now be seen to be substantiallythat adopted in Sidaway by Lord Scarman, and by LordWoolf MR in Pearce, subject to the refinement made by theHigh Court of Australia in Rogers v Whitaker, which we havediscussed at paras 77-73. An adult person of sound mind isentitled to decide which, if any, of the available forms oftreatment to undergo, and her consent must be obtainedbefore treatment interfering with her bodily integrity isundertaken. The doctor is therefore under a duty to takereasonable care to ensure that the patient is aware of anymaterial risks involved in any recommended treatment, andof any reasonable alternative or variant treatments. The testof materiality is whether, in the circumstances of theparticular case, a reasonable person in the patient’s positionwould be likely to attach significance to the risk, or the doctoris or should reasonably be aware that the particular patientwould be likely to attach significance to it.”

A

B

C

D

E

F

G

H

A

11.4.11 This Court in V. Kishan Rao v. Nikhil Super SpecialityHospital[31] has opined that the Bolam test requires re-consideration.A.K. Ganguly, J. speaking for this Court, observed that:

“23.Even though Bolam test was accepted by this Court asproviding the standard norms in cases of medical negligence,in the country of its origin, it is questioned on variousgrounds. It has been found that the inherent dangerin Bolam test is that if the courts defer too readily to expertevidence medical standards would obviously decline.Michael Jones in his treatise on Medical Negligence (Sweetand Maxwell), 4th Edn., 2008 criticised the Bolam test as itopts for the lowest common denominator. The learned authornoted that opinion was gaining ground in Englandthat Bolam test should be restricted to those cases where anadverse result follows a course of treatment which has beenintentional and has been shown to benefit other patientspreviously. This should not be extended to certain types ofmedical accidents merely on the basis of how common theyare. It is felt “to do this would set us on the slippery slopeof excusing carelessness when it happens often enough” (seeMichael Jones on Medical Negligence, para 3-039 at p.246).

B

C

D

E

25. Even though Bolam test “has not been uprooted” it hascome under some criticism as has been noted in Jackson &Powell on Professional Negligence (Sweet and Maxwell), 5thEdn., 2002. The learned authors have noted (see para 7-047at p. 200 in Professional Negligence) that there is anFargument to the effect that Bolam test is inconsistent with theright to life unless the domestic courts construe that therequirement to take reasonable care is equivalent with therequirement of making adequate provision for medical care.In the context of such jurisprudential thinking in England,Gtime has come for this Court also to reconsider theparameters set down in Bolam test as a guide to decide caseson medical negligence and specially in view of Article 21 ofour Constitution which encompasses within its guarantee, aright to medical treatment and medical care.

26. In England, Bolam test is now considered merely a “ruleof practice or of evidence. It is not a rule of law” (see para1.60 in Clinical Negligence by Michael Powers QC, NigelHarris and Anthony Barton, 4th Edn., Tottel Publishing).However, as in the larger Bench of this Court in JacobMathew v. State of Punjab, Lahoti, C.J. hasaccepted Bolam test as correctly laying down the standardsfor judging cases of medical negligence, we follow the sameand refuse to depart from it.”

11.4.12 More recently, this Court in Arun Kumar Manglik v.Chirayu Health and Medicare (P) Ltd.[32]has held that the standardof care as enunciated in Bolam (supra) must evolve in consonance withits subsequent interpretation adopted by English and Indian courts.

11.4.13 Applying the aforesaid principles to the facts of thepresent case, Appellant Nos. 2 and 3 viz. Dr. G.S. Kochhar and Dr.Naveen Jain, the Consultant Paediatricians, undoubtedly possessed theskill and qualifications of a Paediatrician, and the baby was placed undertheir 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 engagedby the Appellant No.1-Hospital, and was the specialist in theOphthalmology Department, ought to have followed the standardprotocol for screening the Respondent No.1-baby for ROP, which isprescribed at the chronological age of 3 to 4 weeks after birth.

11.4.14 Appellant Nos.1 to 3 are liable for medical negligencesince at no stage were the parents of Complainant No.1 either advisedor guided about the possibility of occurrence of ROP in a prematurebaby, nor was the baby examined by Appellant No.4, theOphthalmologist as per standard protocol. The doctors ought to havebeen 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 on04.05.2005 at the chronological age of 5 weeks. Even on this date, noROP test was either advised or conducted.

A

B

C

D

E

F

G

H

AThe baby was brought for a further follow up check-up on13.07.2005, by which time the baby was 3 ½ months old. Even on thisvisit, 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 theBcontemporaneous standards and established protocols on ROP, thereasonable standard of care for a premature baby, mandates screeningand checking up for ROP. It is a medically accepted position that ROPis a reversible disease, if diagnosed up to Stage 3. Had the ROP testbeen conducted by the Appellants, there would have been timelydetection of the onset of ROP, which at that stage would have beenCreversible.

On account of the negligence of the Appellants 2 to 4, the diseaseremained undiagnosed. It came to be diagnosed on 03.12.2005, whenthe baby was 8 months old, by Shroff Charity Eye Hospital. By thistime, the ROP had reached Stage 5, when it becomes irreversibleDleading to total blindness of the Respondent No.1- baby.

11.4.16 We affirm the findings of the National Commission tohold that the Appellant No.1-Hospital, Appellant Nos. 2 and 3- thePaediatricians, and Appellant No.4 – Dr. S.N. Jha, the SeniorOphthalmologist, owed a legal duty of care to the Complainants/Respondents No.1 and 2. The failure to inform the Respondent No.2-Emother of the necessity to have the ROP test conducted in the case ofa pre-term baby, and the high risk involved which could lead to totalblindness, was a breach of duty. Furthermore, the failure to carry outthe ROP test, which is mandated by standard protocol, while the babywas under their direct care and supervision from birth till he was 3 ½Fmonths old, amounted to gross negligence by the Doctors, and deficiencyof service by the Hospital. The consequential damage caused to thebaby by not having conducted the mandatory ROP test, which led tothe total blindess of the baby, has given rise to an actionable claim ofnegligence.

11.4.17 It is well established that a hospital is vicariously liableGfor the acts of negligence committed by the doctors engaged orempanelled to provide medical care.[33] It is common experience that 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 ofMaharashtra (1996) 2 SCC 634; V. Krishnakumar v. State of Tamil Nadu, (2015) 9HSCC 388 : (2015) 4 SCC (Civ) 546

when a patient goes to a hospital, he/she goes there on account of thereputation of the hospital, and with the hope that due and proper carewill be taken by the hospital authorities.[ 34] If the hospital fails todischarge their duties through their doctors, being employed on job basisor employed on contract basis, it is the hospital which has to justify theacts of commission or omission on behalf of their doctors.[ 35]

11.4.18 Accordingly, we hold Appellant No.1-Hospital to bevicariously liable for the acts of omission and commission committedby Appellant Nos. 2 to 4. We hold all the Appellants as being jointlyand severally liable to pay compensation to the Complainants.

11.5 Compensation

11.5.1 Having affirmed the findings recorded by the NationalCommission on the question of medical negligence and deficiency inservice by the Appellants, the issue whether the compensation awardedby the National Commission was just and reasonable is required to bedetermined.

The Complainants had claimed Rs. 1,30,25,000/- as compensationbefore the National Commission. The National Commission vide theImpugned Judgment awarded a total sum of Rs. 64,00,000/- to theComplainants along with interest.

11.5.2 This Court vide Order dated 06.11.2019 directed theAppellants to release a sum of Rs.5,00,000/- (Rupees Five Lakhs) infavour of the Respondent No.2-Complainant from the amount lyingdeposited by the Appellant No.1-Hospital in the Court.

This Court further directed the Complainant/Respondent No.2 tofile an affidavit regarding the education received by the RespondentNo.1, and the level of proficiency he had attained.

11.5.3 Accordingly, the Respondent No.2- Complainant has statedon affidavit that the Respondent No.1, who is now 14 years old, wasstudying in a Government Senior Secondary School for Blind Boys,Kingsway Camp from 2013 to 2017, and barely received education for4 years, up to 5[th] standard. The Respondent No.1 was forced to leaveschool since the Respondent No.2-Complainant was unable to bear hiseducational, co-curricular and transportation expenses. The father of 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

A

B

C

D

E

F

G

H

ARespondent No.1, who was working as a security guard with theMunicipal Corporation of Delhi, had expired in 2013. The RespondentNo.2-Complainant stated that she is currently employed as a part-timereceptionist since 2017, and earns Rs. 5,500/- per month as salary, andreceives Rs. 2,500/- per month under the Delhi Vidhwa Pension Yojna.She further stated that Respondent No.1 received Rs. 2,500/- per monthBunder the Delhi Government’s Scheme for Subsistence Allowance toPersons with Special Needs.

11.5.4 The grant of compensation to remedy the wrong ofmedical negligence is within the realm of law of torts. It is based onthe principle of restitutio in integrum. The said principle provides thatCa person is entitled to damages which should as nearly as possible getthat sum of money which would put him in the same position as hewould have been if he had not sustained the wrong.[36]

11.5.5 In our considered view, having regard to the finding thatDthe medical negligence in the instant case occurred in 2005, and thelitigation has been pending before this Court for over 3 years, coupledwith the fact that the additional monthly expenses such as the care ofan attendant/nurse, educational expenses of the patient in a specialschool, assistive devices etc. have not been taken into account, it wouldserve the ends of justice if the compensation awarded by the NationalECommission 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 securethe interest and welfare of Respondent No.1. These directions are beingpassed to ensure that the compensation received is utilized for theFwelfare of Respondent No.1, to enable him to acquire suitable educationand equip him to become self-reliant.

We direct that the compensation of Rs. 76,00,000/- awarded tothe Respondent No.1- Master Rishabh Sharma s/o Mrs. Pooja SharmaG(in C.A. No. 6619 of 2016), be utilized in the following manner:

36 Livingstone v. Rawyards Coal Co., (1880) LR 5 AC 25 (HL)]; followed in MalayKumar 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)H1 SCC (Civ) 327

a) Rs. 60,00,000/- (Rupees Sixty Lacs Only) is allocatedexclusively for Respondent No.1- Master RishabhSharma for his education, welfare, and sustenance;

b) Rs. 15,00,000/- (Rupees Fifteen Lacs Only) is allocatedto Mrs. Pooja Sharma, the mother of Master RishabhSharma, as his care-giver, after deduction of an amountof Rs.5,00,000/- already disbursed to her.;

c) Rs. 1,00,000/- (Rupees One Lac Only) is awardedtowards litigation costs, payable to Mr. Jai Dehadrai,Advocate and Mr. Sidharth Arora, Advocate, who haverepresented the Complainants on a pro bono basis (asstated by them) in this Court.

11.5.7 The amount of Rs. 60,00,000/- awarded to Master RishabhSharma shall be disbursed in the following manner:

A. Rs. 50,00,000/- be deposited in a Five Years’ Post Office TimeDeposit Scheme in the name of Master Rishabh Sharma with Mrs.Pooja Sharma as his natural guardian. Let five deposits in multiples ofRs. 10,00,000/- each be made. The deposits shall be opened in the PostOffice Savings Bank Account of the Supreme Court Post Office, NewDelhi. The account shall be operated by Mrs. Pooja Sharma under thesupervision 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 ofRs.3,85,000/-, which will be credited into a Savings Account with thePost Office. Out of the said sum, Rs.1,50,000/- shall be invested annuallyin a 15 Year Public Provident Fund (“PPF”) Account to be opened inthe name of Master Rishabh Sharma with UCO Bank, Supreme Court,Tilak Marg, New Delhi. These yearly investments, going by theprovisions 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 andout 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 theeducation and upbringing of Respondent No.1.

B. Rs.4,50,000/- shall be deposited in a Five Year Post OfficeMonthly Income Scheme Account (“MIS Account”) with the Supreme A

B

C

D

E

F

G

H

APost Office in the name of Master Rishabh Sharma so that it will givehim 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 theupbringing of Respondent No.1.

C. The balance of Rs. 5,50,000/- from the amount deposited byBthe Appellants, shall be invested in a Five Year Fixed Deposit Account(“FD Account”) to opened with UCO Bank, Supreme Court, TilakMarg, New Delhi in the name of Master Rishabh Sharma. The interestaccruing therefrom may be utilized by Mrs. Pooja Sharma in suchmanner as is deemed appropriate.

CD. These investments will ensure an annual income ofapproximately Rs. 4,50,000/-. With the investment of Rs. 1,50,000/- ina 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 80Uof the Income Tax Act,1961).D

E. All these deposits on maturity shall be re-invested byRespondent No.2 – Pooja Sharma with the concurrence of theconcerned Registrar of this Court on such terms, which will fetch ahigh rate of interest, and preserve the corpus for the benefit ofRespondent No.1. At no stage, will the Respondent No.2 be permittedEto withdraw any amount from these deposits without the permission ofthe concerned Registrar.

11.5.8 We direct the concerned Registrar of this Court to beassociated with Respondent No.2- the mother of Master RishabhSharma, in giving effect to the directions issued hereinabove.

F

12. Accordingly, we allow Civil Appeal No. 9461 of 2019 (DiaryNo. 15393 of 2019) filed by the Complainants.

13. Civil Appeal No. 6619 of 2016 filed by the Hospital and theDoctors is dismissed. The Appellant Nos. 1 to 4 in Civil Appeal No.6619 of 2016 are directed to deposit the balance amount of. Rs.G44,00,000/- in this Court within a further period of 12 weeks from today.

14. An affidavit of compliance with respect to the deposit ofcompensation be filed by the Appellants before this Court.

15. We have been informed by the Registry of this Court thatHthe 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 aFixed Deposit with UCO Bank, has accrued an interest of aboutRs. 3,80,954/-. We direct that this interest amount be made over toMrs. Pooja Sharma, the mother and care-giver, for the welfare andeducation of Master Rishabh Sharma, for the current year.

16. The original medical records be returned by the Registry tothe counsel for the Appellant No.1-Hospital.

Pending Applications, if any, are accordingly disposed of. Orderedaccordingly.

Ankit Gyan

Appeals disposed of.

A

B

C

D

E

F

G

H