Mrs. Kalyani Rajan vs Indraprastha Apollo Hospital

2023 INSC 921 REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 10347 OF 2010

MRS. KALYANI RAJAN …. APPELLANT

VERSUS

INDRAPRASTHA APOLLO HOSPITAL & ORS. ...RESPONDENTS

JUDGMENT

PRASHANT KUMAR MISHRA, J.

The present appeal is directed against the order passed by

the National Consumer Disputes Redressal Commission1 dated

03.08.2010 whereby the complaint filed by the appellant and

proforma respondent No. 3 under Section 2 (c)(iii) of the

Consumer Protection Act, 19862 was rejected. Signature Not Verified Digitally signed by Deepak Singh Date: 2023.10.18 10:34:26 IST Reason: 1 (for short, ‘the Commission’) 2 (for short, ‘the Act’) 2

2. The complainant-appellant is the wife of the deceased

patient namely, Sankar Rajan3, who was 37 years old and died

on 06.11.1998 in the hospital-respondent no. 1 herein while

undergoing follow up care and treatment after a major

neurosurgery in the care of respondent nos. 1 and 2. The

deceased was under the employment of proforma respondent

no. 3 and was earning handsome annual package at the time of

his demise.

3. The deceased was suffering from Chiari Malformations

(Type II) with Hydrocephalous. The deceased consulted Dr. Ravi

Bhatia – respondent no. 2, Senior Consultant, Department of

Neurosurgery of respondent no. 1-hospital on 21.10.1998, who

advised him to get admitted to respondent no. 1-hospital where

the surgery would be performed by him. As per the advice of

respondent no. 2, the deceased got himself admitted to

respondent no. 1 on 29.10.1998. After performing pre-

operative medical examinations, respondent no. 2 conducted

the operation of the deceased. The deceased was thereafter

shifted to private room at about 04.15 p.m and at about 04.30

p.m, the doctors visiting the deceased were informed about 3 (for short, ‘the deceased’) 3

pain in the neck region, which seemed to have transferred

downward lower than the region where pain used to occur prior

to operation. At about 06.30 p.m. the deceased was given pain

reliever intravenously, but the pain increased along with severe

sweat spells. At about 09.15 p.m, the deceased started

suffering from severe unbearable pain. The complainant-

appellant called respondent no. 2 at his residential phone but

he was not available. At about 09.30 p.m. another pain killer

was intravenously given. At about 11.00 p.m. complainant-

appellant talked to respondent no. 2 at his residence. The

deceased had suffered heart attack around 11.00 p.m. The

deceased was declared brain dead on 31.10.1998. He was kept

on life support till his death on 06.11.1998.

4. The grievance of complainant-appellant is that the

deceased was not attended to by any doctor from neurosurgery

team who had operated the deceased after he was shifted into

the private room till 11.00 P.M. After such major surgery,

instead of shifting to a private room, the deceased should have

been shifted to the Intensive Care Unit4.

4 (for short, ‘ICU’) 4

Findings of Commission (Impugned Order)

5. The allegation in the complaint is mainly apropos lack of

medical care from the time he was shifted to the Private room

till he suffered a cardiac arrest at around 11:00 PM. However,

the appellant herein has not been able to establish by any

cogent evidence or material on record that the heart attack

suffered by the deceased had any connection with the

operation in question or on account of lack of post-operative

care.

6. The said finding has been supported by an affidavit of

Prof. Gulshan Kumar Ahuja who was professor of neurosurgery

in AIIMS & Senior Consultant at R-1/hospital at that time and

he has opined that complications suffered by the deceased

were totally unrelated to the surgery conducted by R-2. He has

further stated that pain in the neck accompanied by symptoms

of profuse sweating and nausea cannot be a symptom of

cardiac respiratory arrest.

7. The deceased did not have any history of diabetes or

hypertension as has been stated by R-2 herein in his evidence

neither did he have any heart problem. The said pain in the 5

neck was on account of cervical operation. No material on

record to show that the deceased was in pain in any other

region of his body. The appellant’s contention apropos the

deceased sweating is not met out with in the medical records

except for once at 9PM.

8. The appellant herein drew the attention to the observation

made in Martin F. D’Souza v. Mohd. Ishfaq5 that no prescription

should ordinarily be given without actual examination and the

tendency to prescription over the phone except in acute

emergency should be avoided. These observations would not be

applicable to the said present case since the deceased had

complained about pain on the neck for which he had been

operated and medicine given by Dr. Tyagi over the phone was

only apropos pain on the neck.

9. In the facts and circumstances, no case of medical

negligence has been proved nor can it be said that the

aftercare treatment of the deceased till he suffered a cardiac

arrest was inadequate so as to hold the respondents herein

5 (2009) 3 SCC 1 6

liable for medical negligence. Principle of Res Ipsa Locutor does

not apply to the facts and circumstances of the said case.

Submissions advanced on behalf of the Appellant apropos Medical Negligence by the Respondents:

10. Shri Nikhil Nayyar, learned senior counsel appearing for

the appellant submits that the deceased died due to cardiac

arrest, albeit, admittedly, the deceased had no cardiac

problems. He would further submit that at the time of

admission the deceased was informed that after the surgery he

would be shifted to the ICU. However, he was shifted from the

recovery room directly to a private room and not to the ICU.

11. In respect of lack of care, he submits that, Dr. Brahm

Prakash & Dr. S. Tyagi, visited the room at around 4.30 p.m.

and the deceased mentioned about pain in the neck region. The

said complaint by the deceased was dismissed as post

operative symptom. The said visit was the only visit by R-2 and

other specialists post the surgery in the private room till the

deceased lost consciousness. Since the pain was not reducing,

the Duty Doctor spoke to Dr. Tyagi around 7.15 p.m. on

telephone on the basis which Nimulid was prescribed by Dr. 7

Tyagi. Thereafter, Dr. Tyagi had a telephonic conversation with

the deceased wherein he was informed that Nimulid did give

some temporary relief, basis which he concluded that the

symptoms of pain felt by the patient were clearly normal post

operative reaction.

12. It is submitted that the patient had an episode of

Ventricular Tachycardia (‘VT’) and R-2 in his admission has

stated that VT is not his area of expertise and in such cases,

patient should have been referred to the appropriate doctor.

However, this was not done and no consultant/specialist with

the relevant expertise was available to attend to the medical

needs of the deceased.

13. Apropos the findings of the impugned order, the appellant

herein refutes the same and submits that they are contrary to

the facts on record which establishes negligence of the

respondents in the post operative care of the deceased.

14. Learned senior counsel further states that the

Commission has not appreciated that the present case reflects

clear example of negligence due to absence of care. In support

of this, he states that there was: i) complete absence of senior 8

doctor, surgeon/specialist to respond to patient’s distress call

from the time the patient was shifted to the room/ward till the

time he became unconscious and; ii) absence of investigation

of pain to diagnose the cause.

Submissions on behalf of Respondent No.1/Hospital

15. Dr. Lalit Bhasin, learned counsel appearing for respondent

no. 1 would submit that respondent no. 1 is one of the best

hospitals equipped with latest medical equipments and the

patient was looked after by Dr. Ravi Bhatia of international

repute, who was formerly Professor and Head of the Neuro-

Surgery and he was assisted by Dr. Brahm Prakash, senior

Neurosurgeon. It was also submitted that patient had made

excellent recovery after neurosurgery and there were no post

operative complications, therefore, he was shifted to recovery

room and thereafter to private room.

16. Learned counsel has drawn our attention to the records of

the hospital containing pre and post operative history of the

patient. Thus, according to learned counsel, there is no

negligence on the part of the hospital or the treating doctors. 9

17. Learned counsel for respondent no. 1 refutes the

contentions of the appellant and submits that in view of the

findings of the Commission and the dicta of this Court in

Bombay Hospital & Medical Research Centre v. Asha

Jaiswal and Others6,the present appeal is liable to be

dismissed.

Submissions on behalf of Respondent-No.2/Dr. Bhatia

18. Ms. Meenakshi Arora, learned senior counsel for

respondent no. 2 adopts the submissions advanced on behalf of

respondent no. 1 apropos findings of the Commission in the

impugned order as well as the dicta of this Court in Bombay

Hospital (supra).

19. Additionally, respondent no. 2 submits that it was

explained to the appellant and the deceased that the patient

would be examined in the recovery room first and thereafter as

per standard practice followed by the hospital, all patients who

6 2021 SCC online SC 1149 10

do not show signs of complications in the Recovery Room and

have no pre-operative medical problems are shifted to their

ward/room. In case the patient develops some post-operative

complications that requires round the clock care and

observation, he/she would be transferred to the Neurology

Intensive Care Unit. Respondent no. 2 also submits that the

deceased had regained full consciousness at the time when he

had been moved from the Operation Theatre to the Recovery

Room. Also, less than half the numbers of neurosurgical

patients operated upon are moved from the OT to Recovery

Room and then to Neurosurgery ICU. In support of the same,

he has submitted data of respondent no.1/hospital apropos the

neurosurgeries conducted and number of patients transferred

to Neuro ICU thereafter.

20. Learned senior counsel further submits that Dr. Brahm

Prakash of the Neuro-Sciences Department at the R-1/hospital

met the deceased, and no complaint was made by the patient

at that time. Similarly, at about 5 p.m. he along with Dr. Tyagi

met with the deceased and examined him. The deceased at

that time complained of only a mild neck pain, which is normal 11

after an operation on the cervical (neck) region. Thereafter, he

left the hospital for his premises and submits that since the

time he left i.e., around 5,30 p.m. till the time he received a

phone call from the appellant at about 11.15 p.m. about the

condition of the deceased, he had not received any calls on his

mobile phone or his landline, nor was any message left for him

at his residence.

21. Learned senior counsel categorically refutes the

contentions of the appellant and submits that the impugned

order suffers from no infirmity warranting interference by this

Court and is liable to be accordingly dismissed.

Analysis and Findings:

22. The crucial issue to be decided is whether the respondents

have committed negligence in not providing proper post-

operative medical care to the patient and, accordingly, whether

the Commission has committed any illegality while dismissing

the complaint filed by the appellant herein.

23. Concededly, the complainant has never questioned the

diagnosis and recommended surgical treatment given to him by 12

respondent no. 2-Dr. Bhatia. It is not the case of the

complainant that Dr. Bhatia was negligent in performing the

Neurosurgery. Thus, the entire case of the complainant was

about lack of proper post-operative medical care. On this

score, the allegation is that the patient should have been

shifted to ICU instead of shifting him to a private room. The

material available on the record demonstrates that as per the

standard practice, all patients who show no signs of

complications in the recovery room and have no post or pre-

operative complications are sent to their rooms. According to

the figures submitted by the respondents, during the months of

September to November 1998, out of 166 neurosurgeries, only

68 patients were sent to the ICU from the recovery room in the

hospital of respondent no. 1. The rest were sent back to their

wards in accordance with standard procedure. It is the stand

of respondent no. 2 that there exists no link or interconnection

between post-operative treatment/care and the cardiac arrest

suffered by the deceased. The symptoms, which emerged after

the deceased was discharged from the Operation Theatre, were

not the symptoms, which typically precede a cardiac arrest.

Since, the deceased did not have any known or identifiable 13

heart ailments, it was impossible for the respondents to have

prior knowledge that the patient may develop cardiac problem

after few hours of the successful surgery. The symptoms,

including dizziness, sweating, and pain in the neck area,

experienced by the deceased post-surgery, could not be treated

as post-surgery reactions. The patient would have been shifted

to the ICU immediately, if serious complications would have

arisen after the surgery, therefore, in the absence of

complications in the surgery or soon thereafter, the patient was

not required to be shifted to ICU and there is no negligence on

this count by either of the respondents.

24. On the issue as to when a medical officer may be held

liable for negligence, this Court in Jacob Mathew v. State of

Punjab and Another7 has observed thus:

“A professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in

7 (2005) 6 SCC 1 14

that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.”

25. The next limb of allegation apropos negligence is that the

deceased was not attended to by any doctor from neurosurgery

team after he was shifted into the private room till 11.00 p.m.

when he suffered cardiac arrest. Material placed before this

Court including the record maintained by the hospital would

reveal that the patient was examined by Dr. Brahm Prakash, Dr.

Ravi Bhatia and Dr. Tyagi after the patient was shifted to the

private room. He had complained of pain in the neck region to

Dr. Ravi Bhatia and the patient was told that it was on account

of the operation. Pain in the neck region started increasing at

06:00 p.m. for which injection was given. When the doctor on

duty contacted Dr. Tyagi, he was instructed to give tablet

Nimulid. Except for the pain in neck region, the patient did not

complain of pain in any other part of his body. The attending

nurse called Dr. Tyagi at around 08:15 p.m. to inform him that

the patient is complaining about the problem of sweating, pain 15

and dizziness which, according to Dr. Tyagi, were normal post

operative reactions. Dr. Tyagi spoke to the complainant and the

patient on which the patient informed him that he was better.

At 09:30 p.m. pain killer was given and around 11:00 p.m., the

patient lost consciousness due to severe cardiac arrest. Dr.

Ravi Bhatia was informed, and he immediately came to the

hospital. Thereafter, all required steps were taken as revealed

from the hospital record. There is no evidence put forth by the

complainant to establish that heart attack suffered by the

patient had any connection with the operation in question or

that it was on account of negligent post operative care.

26. The respondents have filed affidavit of Prof. Gulshan

Kumar Ahuja, professor of neurosurgery in AIIMS and Senior

Consultant in Neurology at Respondent No.1-Hospital. After

going through the record and CT Scan dated 04.11.1998, Dr.

Ahuja opined that the record did not show any abnormality at

the operated site and the complications suffered by the patient

were totally unrelated to the surgery conducted by Respondent

No. 2. While answering the interrogatories, Dr. Ahuja stated 16

that pain in the neck along with sweating and nausea are not

the symptoms of cardiac respiratory arrest.

27. It is significant to notice that the patient did not have any

history of diabetes or hypertension or any cardiac problem.

Therefore, it was difficult for treating doctors including the duty

doctor or the hospital to assume that the patient may suffer

cardiac arrest and moreover, the patient had also not

complained of pain in any other part of the body except neck

region. As per the medical record, the patient complained of

sweating only around 09:00 p.m. on which Dr. Tyagi spoke to

the patient.

28. In the matter of Bombay Hospital (supra) this Court has

elaborately considered previous judgments on the subject to

hold thus:

“16.………..It was argued that the professional competence of Doctor has not been doubted even by the Commission but two factors have been taken against the Doctor for holding him negligent; first, that he did not visit the patient soon after the surgery till 9/9.30 a.m. on the next day to verify the blood flow after the surgery, and second, he did not visit the patient from 29.4.1998 to 9.5.1998 when he was in Mumbai and from 9.5.1998 to 7.6.1998 when he went abroad for attending medical conferences.

17 XXX

23 ……… There is no proof that there was any negligence in performing the surgery on 23.4.1998 or in the process of re-exploration on 24.4.1998. The allegation is of failure of the Doctor to take the follow-

up action after surgery on 23.4.1998, a delayed decision to amputate the leg subsequent to re- exploration on 24.4.1998, and the alleged undue foreign visit of the Doctor.

29. In Martin F. D'Souza v. Mohd. Ishfaq(2009) 3 SCC 1, this court observed that the doctor cannot be held liable for medical negligence by applying the doctrine of res ipsa loquitur for the reason that a patient has not favourably responded to a treatment given by a doctor or a surgery has failed. There is a tendency to blame the doctor when a patient dies or suffers some mishap. This is an intolerant conduct of the family members to not accept the death in such cases. The increased cases of manhandling of medical professionals who worked day and night without their comfort has been very well seen in this pandemic. This Court held as under:

“40. Simply because a patient has not favourably responded to a treatment given by a doctor or a surgery has failed, the doctor cannot be held straightaway liable for medical negligence by applying the doctrine of res ipsa loquitur. No sensible professional would intentionally commit an act or omission which would result in harm or injury to the patient since the professional reputation of the professional would be at stake. A single failure may cost him dear in his lapse.

18 xxx xxx xxx

42. When a patient dies or suffers some mishap, there is a tendency to blame the doctor for this. Things have gone wrong and, therefore, somebody must be punished for it. However, it is well known that even the best professionals, what to say of the average professional, sometimes have failures. A lawyer cannot win every case in his professional career but surely he cannot be penalised for losing a case provided he appeared in it and made his submissions.”

XXX

32. In C.P. Sreekumar (Dr.), MS (Ortho) v. S. Ramanujam[(2009) 7 SCC 130], this Court held that the Commission ought not to presume that the allegations in the complaint are inviolable truth even though they remained unsupported by any evidence.

This Court held as under:

“37. We find from a reading of the order of the Commission that it proceeded on the basis that whatever had been alleged in the complaint by the respondent was in fact the inviolable truth even though it remained unsupported by any evidence. As already observed in Jacob Mathew case [(2005) 6 SCC 1] the onus to prove medical negligence lies largely on the claimant and that this onus can be discharged by leading cogent evidence. A mere averment in a complaint which is denied by the other side can, by no stretch of imagination, be said to be evidence by which the case of the complainant can be said to be proved. It is the obligation of the 19

complainant to provide the facta probanda as well as the facta probantia.”

33. In another judgment reported as Kusum Sharma v. Batra Hospital and Medical Research Centre[(2010) 3 SCC 480], a complaint was filed attributing medical negligence to a doctor who performed the surgery but while performing surgery, the tumour was found to be malignant. The patient died later on after prolonged treatment in different hospitals. This Court held as under:

“47. Medical science has conferred great benefits on mankind, but these benefits are attended by considerable risks. Every surgical operation is attended by risks. We cannot take the benefits without taking risks. Every advancement in technique is also attended by risks.

xxx xxx xxx

72. The ratio of Bolam case [[1957] 1 WLR 582 : (1957) 2 All ER 118] is that it is enough for the defendant to show that the standard of care and the skill attained was that of the ordinary competent medical practitioner exercising an ordinary degree of professional skill. The fact that the respondent charged with negligence acted in accordance with the general and approved practice is enough to clear him of the charge. Two things are pertinent to be noted. Firstly, the standard of care, when assessing the practice as adopted, is judged in the light of knowledge available at the time (of the incident), and not at the date of trial. Secondly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if 20

the equipment was not generally available at that point of time on which it is suggested as should have been used.

xxx xxx xxx

78. It is a matter of common knowledge that after happening of some unfortunate event, there is a marked tendency to look for a human factor to blame for an untoward event, a tendency which is closely linked with the desire to punish. Things have gone wrong and, therefore, somebody must be found to answer for it. A professional deserves total protection. The Penal Code, 1860 has taken care to ensure that people who act in good faith should not be punished. Sections 88, 92 and 370 of the Penal Code give adequate protection to the professionals and particularly medical professionals.”

34. Recently, this Court in a judgment reported as Dr. Harish Kumar Khurana v. Joginder Singh[2021 SCC OnLine SC 673] held that hospital and the doctors are required to exercise sufficient care in treating the patient in all circumstances. However, in an unfortunate case, death may occur. It is necessary that sufficient material or medical evidence should be available before the adjudicating authority to arrive at the conclusion that death is due to medical negligence. Every death of a patient cannot on the face of it be considered to be medical negligence. The Court held as under:

“11. …….. Ordinarily an accident means an unintended and unforeseen injurious occurrence, something that does not occur in the usual course of events or that could not be reasonably anticipated. The learned 21

counsel has also referred to the decision in Martin F.D'Souza v. Mohd. Ishfaq, (2009) 3 SCC 1 wherein it is stated that simply because the patient has not favourably responded to a treatment given by doctor or a surgery has failed, the doctor cannot be held straight away liable for medical negligence by applying the doctrine of Res Ipsa Loquitor. It is further observed therein that sometimes despite best efforts the treatment of a doctor fails and the same does not mean that the doctor or the surgeon must be held guilty of medical negligence unless there is some strong evidence to suggest that the doctor is negligent.

xxx xxx xxx

14.Having noted the decisions relied upon by the learned counsel for the parties, it is clear that in every case where the treatment is not successful or the patient dies during surgery, it cannot be automatically assumed that the medical professional was negligent.

To indicate negligence there should be material available on record or else appropriate medical evidence should be tendered. The negligence alleged should be so glaring, in which event the principle of res ipsa loquitur could be made applicable and not based on perception. In the instant case, apart from the allegations made by the claimants before the NCDRC both in the complaint and in the affidavit filed in the proceedings, there is no other medical evidence tendered by the complainant to indicate negligence on the part of the 22

doctors who, on their own behalf had explained their position relating to the medical process in their affidavit to explain there was no negligence. ………………”

36. As discussed above, the sole basis of finding the appellants negligent was res ipsa loquitor which would not be applicable herein keeping in view the treatment record produced by the Hospital and/or the Doctor. There was never a stage when the patient was left unattended. The patient was in a critical condition and if he could not survive even after surgery, the blame cannot be passed on to the Hospital and the Doctor who provided all possible treatment within their means and capacity. The DSA test was conducted by the Hospital itself on 22.4.1998. However, since it became dysfunctional on 24.4.1998 and considering the critical condition of the patient, an alternative angiography test was advised and conducted and the re-exploration was thus planned. It is only a matter of chance that all the four operation theatres of the Hospital were occupied when the patient was to undergo surgery. We do not find that the expectation of the patient to have an emergency operation theatre is reasonable as the hospital can provide only as many operation theatres as the patient load warrants. If the operation theatres were occupied at the time when the operation of the patient was contemplated, it cannot be said that there is a negligence on the part of the Hospital. A team of specialist doctors was available and also have attended to the patient but unfortunately nature had the last word and the patient breathed his last. The family may not have coped with the loss of their loved one, but the Hospital and the Doctor cannot be blamed as they provided the requisite care at all given times. No doctor can assure life to his patient but can only attempt to treat his patient to the best of his ability which was being done in the present case as well.” 23

29. In so far as the applicability of principles of Res Ipsa

Locutor, in the fact and circumstances of the case, it is to bear

in mind that the principles get attracted where circumstances

strongly suggest partaking in negligent behaviour by the

person against whom an accusation of negligence is made. For

applying the principles of Res Ipsa Locutor, it is necessary that

a ‘Res’ is present to establish the allegation of negligence.

Strong incriminating circumstantial or documentary evidence is

required for application of the doctrine.

30. In Malay Kumar Ganguly v. Dr. Sukumar Mukherjee

and Ors.8 this Court has observed in paragraph 34 as follows:

“34. Charge of professional negligence on a medical person is a serious one as it affects his professional status and reputation and as such the burden of proof would be more onerous. A doctor cannot be held negligent only because something has gone wrong. He also cannot be held liable for mischance or misadventure or for an error of judgment in making a choice when two options are available. The mistake in diagnosis is not necessarily a negligent diagnosis.”

8 (2009) 9 SCC 221 24

31. The case in hand stands on a better footing, in as much as

there was no mistake in diagnosis or a negligent diagnosis by

Respondent no. 2. In the absence of the patient having any

history of diabetes, hypertension, or cardiac problem, it is

difficult to foresee a possible cardiac problem only because the

patient had suffered pain in the neck region.

32. For the foregoing, this Court is of the considered view that

the appellant has failed to establish negligence on the part of

Respondents in taking post operative care and the findings in

this regard recorded by the Commission does not suffer from

any illegality or perversity.

33. The appeal sans substance and is, accordingly, dismissed.

34. Pending application(s), if any, shall stand disposed of.

………………………………………J. (A.S. BOPANNA)

.......……………………………….J. (PRASHANT KUMAR MISHRA) NEW DELHI;

OCTOBER 17, 2023.