# MAHARAJA AGRASEN HOSPITAL & ORS v. MASTER RISHABH SHARMA & ORS

- **Citation:** [2019] 16 S.C.R. 1185
- **Court:** Supreme Court of India
- **Decided:** 2019-12-16
- **Case number:** Civil Appeal No. 6619 of 2016
- **Bench:** Uday Umesh Lalit, Indu Malhotra
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/maharaja-agrasen-hospital-ors-v-master-rishabh-sharma-ors-33905
- **Pages:** 49

## Headnote

Medical Negligence - Respondents Nos. 1 to 3-complainants
filed a complaint of medical negligence against appellant No. 1hospital and appellant Nos. 2 to 4-the Paediatricians and
ophthalmologist doctors working with the hospital and respondent
No. 4-the Gynaecologist before the National Consumer Disputes
Redressal Commission - NCDRC held the appellant no. 1-hospital
guilty of medical negligence, since they failed to carry out the
mandatory check up of Retinopathy of Prematurity (ROP) on
respondent No. 1, who was a pre-term baby, which led to his total
blindness and appellants Nos. 1 to 4 were jointly held liable to
pay the total amount of Rs. 64,00,000/- - On appeal, held: The
appellants owed a legal duty of care to the complainants/
respondents Nos. 1 & 2 - The failure to inform the respondent
No.2- mother of the respondent No. 1 of the necessity to have the
ROP test conducted in the case of a pre-term baby and the high
risk involved which could lead total blindness, was a breach of
duty - Furthermore, the failure to carry out the ROP test, which is
mandated by standard protocol, while the baby was under their
direct care and supervision from birth till he was 3 and 1/2 months
old, amounted to gross negligence by the doctors and deficiency
of service by the hospital - Besides, there was inordinate delay of
over 2 years by appellant Nos. 1 in making the medical records of
respondent no.1 available to respondent no.2 and same would
constitute a grave professional misconduct u/regn. 7 of the IMC
regulations, apart from being a gross deficiency in service - The
findings of the NCDRC affirmed and compensation of Rs.
76,00,000/- awarded to respondent no. 1 - Consumer Protection
- Deficiency in service - Indian Medical Council (Professional
Conduct, Etiquettes and Ethics) Regulations, 2002 - Regulation
1.3.2.
 [2019] 16 S.C.R. 1185
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[2019] 16 S.C.R.
Medical negligence - Constituents of - Held: Medical
negligence comprises of the following constituents: (1) A legal duty
to exercise due care on the part of the medical professional; (2)
failure to inform the patient of the risks involved; (3) the patient
suffers damage as a consequence of the undisclosed risk by the
medical professional; (4) if the risk had been disclosed, the patient
would have avoided the injury; (5) breach of the said duty would
give rise to an actionable claim of negligence.
Medical negligence - Cause of action for - Held: The cause
of action for negligence arises only when damage occurs, since
damage is a necessary ingredient of this tort - In a complaint of
medical negligence, the burden is on the complainant to prove
breach of duty, injury and causation - The injury must be
sufficiently proximate to the medical practitioner's breach of duty
- In the absence of evidence to the contrary adduced by the
opposite party, an inference of causation may be drawn even
though positive or scientific proof is lacking.
Doctrines/Principles - Vicarious Liability - discussed.
Medical Negligence - Bolam Test - discussed.
Disposing of the appeals, the Court
Inordinate Delay in Supply of Medical Records
HELD: 1.1 There was an inordinate delay of over 2 years
in making the Medical Records of Respondent No.1 available
to the Respondent No.2-Complainant. Regulation 1.3.2 of the
Indian Medical Council (Professional Conduct, Etiquettes and
Ethics) Regulations, 2002 casts a statutory obligation upon every
doctor/hospital to provide medical records within 72 hours of the
request being made by the patient. [Para 11.1] [1203-C-D]
1.2 As per Regulation 7, if the doctor refuses or fails to
provide the medical records within 72 hours when the patient
or his/her authorised representative makes a request as per the
Regulation 1.3.2, the said act of commission or omission would
constitute professional misconduct rendering him/her liable for
disciplinary action and punishment under Regulation 8. [Para
11.1.2] [1204-D]
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1.3 The

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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-complainants
filed a complaint of medical negligence against appellant No. 1hospital and appellant Nos. 2 to 4-the Paediatricians and
ophthalmologist doctors working with the hospital and respondent
No. 4-the Gynaecologist before the National Consumer Disputes
Redressal Commission - NCDRC held the appellant no. 1-hospital
guilty of medical negligence, since they failed to carry out the
mandatory check up of Retinopathy of Prematurity (ROP) on
respondent No. 1, who was a pre-term baby, which led to his total
blindness and appellants Nos. 1 to 4 were jointly held liable to
pay the total amount of Rs. 64,00,000/- - On appeal, held: The
appellants owed a legal duty of care to the complainants/
respondents Nos. 1 & 2 - The failure to inform the respondent
No.2- mother of the respondent No. 1 of the necessity to have the
ROP test conducted in the case of a pre-term baby and the high
risk involved which could lead total blindness, was a breach of
duty - Furthermore, the failure to carry out the ROP test, which is
mandated by standard protocol, while the baby was under their
direct care and supervision from birth till he was 3 and 1/2 months
old, amounted to gross negligence by the doctors and deficiency
of service by the hospital - Besides, there was inordinate delay of
over 2 years by appellant Nos. 1 in making the medical records of
respondent no.1 available to respondent no.2 and same would
constitute a grave professional misconduct u/regn. 7 of the IMC
regulations, apart from being a gross deficiency in service - The
findings of the NCDRC affirmed and compensation of Rs.
76,00,000/- awarded to respondent no. 1 - Consumer Protection
- Deficiency in service - Indian Medical Council (Professional
Conduct, Etiquettes and Ethics) Regulations, 2002 - Regulation
1.3.2.
 [2019] 16 S.C.R. 1185
1185
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SUPREME COURT REPORTS
[2019] 16 S.C.R.
Medical negligence - Constituents of - Held: Medical
negligence comprises of the following constituents: (1) A legal duty
to exercise due care on the part of the medical professional; (2)
failure to inform the patient of the risks involved; (3) the patient
suffers damage as a consequence of the undisclosed risk by the
medical professional; (4) if the risk had been disclosed, the patient
would have avoided the injury; (5) breach of the said duty would
give rise to an actionable claim of negligence.
Medical negligence - Cause of action for - Held: The cause
of action for negligence arises only when damage occurs, since
damage is a necessary ingredient of this tort - In a complaint of
medical negligence, the burden is on the complainant to prove
breach of duty, injury and causation - The injury must be
sufficiently proximate to the medical practitioner's breach of duty
- In the absence of evidence to the contrary adduced by the
opposite party, an inference of causation may be drawn even
though positive or scientific proof is lacking.
Doctrines/Principles - Vicarious Liability - discussed.
Medical Negligence - Bolam Test - discussed.
Disposing of the appeals, the Court
Inordinate Delay in Supply of Medical Records
HELD: 1.1 There was an inordinate delay of over 2 years
in making the Medical Records of Respondent No.1 available
to the Respondent No.2-Complainant. Regulation 1.3.2 of the
Indian Medical Council (Professional Conduct, Etiquettes and
Ethics) Regulations, 2002 casts a statutory obligation upon every
doctor/hospital to provide medical records within 72 hours of the
request being made by the patient. [Para 11.1] [1203-C-D]
1.2 As per Regulation 7, if the doctor refuses or fails to
provide the medical records within 72 hours when the patient
or his/her authorised representative makes a request as per the
Regulation 1.3.2, the said act of commission or omission would
constitute professional misconduct rendering him/her liable for
disciplinary action and punishment under Regulation 8. [Para
11.1.2] [1204-D]
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1.3 The withholding the medical records of Respondent
No.1, who was a premature baby, for a period of over 2 years,
would constitute grave professional misconduct under
Regulation 7, apart from being a gross deficiency in service on
the part of the Appellant No.1-Hospital and its management.
[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 all
by the Appellant No.1- Hospital, or Appellant No.4-the Senior
Ophthalmologist, throughout the period of hospitalisation of the
baby, or even after discharge. The baby was born in the 32nd
gestational week, and was 1.49 kgs at birth. As per standard
protocol, the ROP screening ought to have been done between
3-4 weeks from birth. The baby remained admitted for 27 days
in the Hospital from 02.04.2005 to 29.04.2005. There is no
justification whatsoever why the mandatory screening of ROP
was not done for the baby, while he was under the direct care
and supervision of the Appellants. [Para 11.2.10] [1215-G-H;
1216-A]
Medical Negligence and Duty of Care
3.1 Medical negligence comprises of the following
constituents: (1) A legal duty to exercise due care on the part
of the medical professional; (2) failure to inform the patient of
the risks involved; (3) the patient suffers damage as a
consequence of the undisclosed risk by the medical professional;
(4) if the risk had been disclosed, the patient would have avoided
the injury; (5) breach of the said duty would give rise to an
actionable claim of negligence. [Para 11.4.1] [1217-D]
3.2 The cause of action for negligence arises only when
damage occurs, since damage is a necessary ingredient of this
tort. In a complaint of medical negligence, the burden is on the
complainant to prove breach of duty, injury and causation. The
injury must be sufficiently proximate to the medical
practitioner's breach of duty. In the absence of evidence to the
contrary adduced by the opposite party, an inference of causation
may be drawn even though positive or scientific proof is lacking.
[Para 11.4.1] [1217-E-F]
MAHARAJA AGRASEN HOSPITAL & ORS. v. MASTER
RISHABH SHARMA & ORS.
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3.3 Medical negligence is the breach of a duty of care by
an act of omission or commission by a medical professional of
ordinary prudence. Actionable medical negligence is the neglect
in exercising a reasonable degree of skill and knowledge to the
patient, to whom he owes a duty of care, which has resulted in
injury to such person. The standard to be applied for adjudging
whether the medical professional charged has been negligent or
not, in the performance of his duty, would be that of an ordinary
competent person exercising ordinary skill in the profession.
The law requires neither the very highest nor a very low degree
of care and competence to adjudge whether the medical
professional has been negligent in the treatment of the patient.
[Para 11.4.2] [1217-F-G; 1218-A]
3.4 In the present case, Appellant Nos. 2 and 3-the
Consultant Paediatricians, undoubtedly possessed the skill and
qualifications of a Paediatrician, and the baby was placed under
their direct care and treatment from birth till he was 3 1⁄2 months
old. They owed a duty of care to the baby and his parents.
Appellant No.4-the Senior Consultant Ophthalmologist, who was
engaged by the Appellant No.1-Hospital, and was the specialist
in the Ophthalmology Department, ought to have followed the
standard protocol for screening the Respondent No.1-baby for
ROP, which is prescribed at the chronological age of 3 to 4
weeks after birth. [Para 11.4.13] [1227-D-E]
3.5 Appellant Nos.1 to 3 are liable for medical negligence
since at no stage were the parents of Complainant No.1 either
advised or guided about the possibility of occurrence of ROP in
a premature baby, nor was the baby examined by Appellant No.4,
the Ophthalmologist as per standard protocol. The doctors ought
to have been fully aware of the high chances of occurrence of
ROP in a pre-term baby. The lack of care constitutes a gross
deficiency in service. After discharge on 29.04.2005, the baby
was brought on 04.05.2005 at the chronological age of 5 weeks.
Even on this date, no ROP test was either advised or conducted.
The baby was brought for a further follow up check-up on
13.07.2005, by which time the baby was 3 1⁄2 months old. Even
on this visit, the Appellants did not advise or guide the
Respondent No.2-Complainant to have the ROP test conducted.
[Para 11.4.14] [1227-F-G]
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3.6 This Court affirms the findings of the National
Commission to hold that the Appellant No.1-Hospital, Appellant
Nos. 2 and 3- the Paediatricians, and Appellant No.4- the Senior
Ophthalmologist, owed a legal duty of care to the Complainants/
Respondents No.1 and 2. The failure to inform the Respondent
No.2-mother of the necessity to have the ROP test conducted
in the case of a pre-term baby, and the high risk involved which
could lead to total blindness, was a breach of duty. Furthermore,
the failure to carry out the ROP test, which is mandated by
standard protocol, while the baby was under their direct care and
supervision from birth till he was 3 1⁄2 months old, amounted to
gross negligence by the Doctors, and deficiency of service by
the Hospital. The consequential damage caused to the baby by
not having conducted the mandatory ROP test, which led to the
total blindess of the baby, has given rise to an actionable claim
of negligence. [Para 11.4.16] [1228-E-F]
V. Krishnakumar v. State of Tamil Nadu (2015) 9 SCC
388 : [2015] 8 SCR 100 ; Jacob Mathew v. State of
Punjab (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 Societies
of India v. Union of India (2019) 6 SCC 283 ; Ramesh
Chandra Aggarwal v. Regence Hospital Ltd. & Ors.
(2009) 9 SCC 709 : [2009] 14 SCR 424 ; Malay
Kumar Ganguly v. Dr. Sukumar Mukherjee, (2009) 9
SCC 221 : [2009] 13 SCR 1 ; V. Kishan Rao v. Nikhil
Super 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] 9
SCR 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 ; Kusum
Sharma v. Batra Hospital (2010) 3 SCC 480 : [2010]
MAHARAJA AGRASEN HOSPITAL & ORS. v. MASTER
RISHABH SHARMA & ORS.
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2 SCR 685 ; S.K. Jhunjhunwala v. Dhanwanti Kaur,
(2019) 2 SCC 28 ; Arun Kumar Manglik v. Chirayu
Health 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 Coal
Co., (1880) LR 5 AC 25 (HL) ; Achutrao Haribhau
Khodwa v. State of Maharashtra (1996) 2 SCC 634 :
[1996] 2 SCR 881 ; State of H.P. v. Jai Lal (1999) 7
SCC 280 : [1999] 2 Suppl. SCR 318 - referred to.
Hucks v. Cole (1968) 118 New LJ 469 ; Bolam v.
Friern Hospital Management Committee, (1957) 1
WLR 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.
Lanarkshire Health Board [2015] UKSC 11- referred
to.
Halsbury's Laws of England 4th Edn., Vol. 26 pp. 1718
Case Law Reference
(2019) 6 SCC 283
referred to
Para 11.1.5
[2009] 9 SCR 313
referred to
Para 11.2.1
[2005] 2 Suppl. SCR 307
relied on
Para 11.2.1
[2015] 8 SCR 100
relied on
Para 11.2.
[2009] 14 SCR 424
referred to
Para 11.3.2
[1999] 2 Suppl. SCR 318
referred to
Para 11.3.2
[2009] 13 SCR 1
referred to
Para 11.3.2
[2010] 5 SCR 1
relied on
Para 11.3.2
[2004] 5 Suppl. SCR 359
referred to
Para 11.3.2
[2009] 9 SCR 889
referred to
Para 11.4.2
[1969] 1 SCR 206
referred to
Para 11.4.3
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[2010] 2 SCR 685
referred to
Para 11.4.3
(2019) 2 SCC 28
referred to
Para 11.4.6
[2010] 5 SCR 1
referred to
Para 11.4.11
[2019] 3 SCR 281
referred to
Para 11.4.12
[2004] 5 Suppl. SCR 359
referred to
Para 11.4.17
[2013] 12 SCR 30
referred to
Para 11.4.17
[1996] 2 SCR 881
referred to
Para 11.4.17
(2015) 9 SCC 388
referred to
Para 11.4.17
(2009) 9 SCC 221
referred to
Para 11.5.4
[2015] 8 SCR 100
referred to
Para 11.5.4
[2013] 12 SCR 30
referred to
Para 11.5.4
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6619
of 2016.
From the Judgment and Order dated 10.05.2016 of the National
Consumer Disputes Redressal Commission at New Delhi in Consumer
Complaint 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), Gautam
Narayan, Neeraj K. Gupta, A.K. Sharma, Anjani Kumar, Ranjeet Kumar
Singh, Anil Kumar, Ms. Manisha Ambwani, Advs. for the appearing
parties.
The Judgment of the Court was delivered by
INDU MALHOTRA, J.
1. The present Civil Appeals arise out of a complaint of medical
negligence made by Respondent Nos. 1 to 3 - the Complainants against
the Appellant No.1 - Hospital and Appellant Nos. 2 to 4 - the
Paediatricians and Ophthalmologist Doctors working with the Appellant
No.1-Hospital, and Respondent No.4- the Gynaecologist, before the
National Consumer Disputes Redressal Commission (hereinafter
referred to as the "National Commission").
MAHARAJA AGRASEN HOSPITAL & ORS. v. MASTER
RISHABH SHARMA & ORS.
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2. The National Commission vide Judgment and Order dated
10.05.2016 ("impugned Judgment") allowed the consumer complaint,
and held the Appellant No.1 - Hospital, and Appellant Nos. 2 to 4 -
Doctors guilty of medical negligence, since they failed to carry out the
mandatory check up of Retinopathy of Prematurity ("ROP") on
Respondent No.1-Master Rishabh, who was a pre-term baby, which
led to his total blindness. In so far as Respondent No.4- Dr. Rama
Sharma, the Gynaecologist is concerned, who had delivered the baby,
she was exonerated by the National Commission, and has not been
pressed before this Court.
3. Aggrieved by the impugned Judgment passed by the National
Commission, the Appellant No.1- Maharaja Agrasen Hospital, a super
speciality hospital, Appellant No.2 -Dr. G.S. Kochhar and Appellant
No.3- Dr. Naveen Jain, the Consultant Paediatricians working for the
Appellant No.1 - Hospital, and Appellant No.4-Dr. S.N. Jha, the Senior
Consultant Ophthalmologist working for the Appellant No.1-Hospital
have filed Civil Appeal No. 6619 of 2016.
4. Respondent No.1-Master Rishab Sharma, is the child-patient,
who was Complainant No.1 before the National Commission, and was
represented by his widowed mother Pooja Sharma - Respondent No.2/
the Complainant No.2. Respondent No.3 is the elder brother of
Respondent No.1.
The Complainants have filed Civil Appeal No. 9461 of 2019
(Diary No. 15393 of 2019) before this Court for further enhancement
of the compensation awarded by the National Commission.
5. The background facts in which the present Civil Appeals have
been filed are as under:-
5.1 Respondent No.2-Pooja Sharma - the Complainant No.2 was
under the ante-natal care of Respondent No.4-Dr. Rama Sharma at
Sharma Medical Centre since September 2005.
5.2 On 02.04.2005, at about 5.30 p.m., the Respondent No.2 had
to undergo a caesarean section in view of the condition of Placenta
Previa. The baby-Respondent No.1 was born pre-term at 32 weeks'
gestation, with a weight of 1.49 kg at the time of birth.
5.3 On the same day, at about 8:30 p.m., Respondent No.4- Dr.
Rama Sharma, the Gynaecologist referred the case for intensive care
to Maharaja Agrasen Hospital- Appellant No.1.
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At the time of admission, the general condition of the baby was
poor, and was diagnosed as "32 weeks pre-term AGA with HMD".
The baby was treated in the Neo-natal ICU of the Paediatrics Unit
and was put on ventilatory support, and Surfactant injections were
administered gradually.
5.4 The Respondent No.1-baby stayed in the Appellant No.1Hospital for almost 4 weeks, and was discharged on 29.04.2005, which
was 27 days after birth.
The Discharge Slip issued by the Appellant No.1-Hospital to the
Complainants reads as follows:
" Maharaja Agrasen Hospital
Punjabi Bagh, New Delhi-110026, Ph. 25106645 to 54
DISCHARGE SLIP
Hospital No. 505404. Ward: NICU Deptt./Unit: Paed-III.
Name: B/O. Pooja Sharma Age/Sex NB/M.
Date of Admission: 02.04.2005 at 8.30 p.m.
Date of Discharge:
 29.04.2005
Diagnosis: PT (32) with HMD with Neonatal Hyperbil with B/L
Pneumothorax Fungal Septicemia.
Condition at time of discharge: Satisfactory.
Consultants: Dr. G.S.Kochar /Dr. N. Jain
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.
MAHARAJA AGRASEN HOSPITAL & ORS. v. MASTER
RISHABH SHARMA & ORS. [INDU MALHOTRA, J. ]
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 Drop Vitcofol 5 drops OD.
 Drop Evion 5 drops OD
 To review in Pead. OPD on Wed / Sat 4 p.m.
 Refer back to Rama Nursing Home (Sharma Medical
Centre)
_____________
______-sd-____________
Consultant
Medical Officer "
5.5 There is no advice to the Complainants to have the ROP test
carried out on the baby, who was born prematurely, in the Discharge
Slip. Post discharge, the Respondent No.2-Complainant brought the baby
for a follow up check-up on 04.05.2005 to the Paediatrics Unit of the
General OPD of the Appellant No.1-Hospital, when the baby was 4
weeks and 4 days old. The baby was examined by the Consultant
Paediatricians - Dr. G.S. Kochhar and Dr. Naveen Jain/ Appellants No.
2 and 3.
As per the medical records, the Respondent No.1-baby was
found to be stable, and Respondent No.2-Complainant was advised to
continue breast feeding along with supplements.
It is pertinent to note that there was no advice or recommendation
for ROP check-up on this date in the Medical Records produced by
the Appellant No.1 -Hospital.
5.6 On 13.07.2005, the Respondent No.2-Complainant brought
the baby for a 2nd follow-up visit when he was over 3 months old to
the Paediatrics Unit of the General OPD of the Appellant No.1-Hospital.
The Respondent No.1-baby was examined by Dr. Manoj on behalf of
Dr. G.S. Kochhar. Dr. Manoj advised the Complainants for the BERA
scan/test to be conducted.
It is pertinent to note that there was no advice for ROP checkup given even on this visit.
5.7 Respondent No.2-Complainant submits that sometime in
November 2005, she noticed abnormal visual responses in the
Respondent No.1 - baby. The Complainant asked for the medical
records of the baby to have his follow up treatment done.
The medical records were, however, not made available by
Appellant No.1-Hospital.
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5.8 On 23.11.2005, Respondent No.2 - Complainant took the
baby to Nayantara Eye Clinic, Delhi where an ultrasound (B. Scan)
was conducted. It was advised that eye-ointment and eye-drops be
administered to the baby.
5.9 On 03.12.2005, the baby was taken by Respondent No.2Complainant to Shroff Charity Eye Hospital, Delhi for further
examination where the ultrasound (B. Scan) was conducted. The Shroff
Charity Eye Hospital diagnosed that the baby had ROP Stage 5 in both
eyes, which is a case of total retinal detachment.
5.10 Respondent No.2-Complainant approached Respondent
No.4- Dr Rama Sharma, the Gynaecologist of Sharma Medical Centre
to explain how the medical condition of Respondent No.1-baby had
remained un-diagnosed. Dr. Rama Sharma shifted the blame to the
Appellants.
5.11 On 07.12.2005, Respondent No.2-Complainant took the baby
to the Appellant No.1-Hospital in the Private OPD Consultation. Dr.
Sanjay Bhavan, Ophthalmologist examined Respondent No.1-baby. The
case was referred to Dr. Lingam Gopal of Shankara Netralaya at
Chennai for an urgent appointment.
5.12 On 07.01.2006, the Respondent No.1-baby was taken by
his mother- Respondent No.2-Complainant to Dr. Rajendra Prasad
Centre for Ophthalmic Sciences at AIIMS, New Delhi for OPD
Consultation. After examination, it was confirmed that it was a case
of ROP Stage 5.
5.13 On 24.02.2007, the Respondent No.2-Complainant was
constrained to issue a legal notice to the Appellant No.1-Hospital to
provide the entire in-patient medical records of the baby in compliance
with Regulation 1.3.2 of the Indian Medical Council (Professional
Conduct, Etiquettes and Ethics) Regulations, 2002 ("IMC
Regulations").
5.14 The Appellant Nos. 1 to 3 failed to provide the in-patient
medical records to the Complainant despite the issuance of legal notice.
5.15 The Respondent No.2-Complainant then filed a complaint
with the Delhi Medical Council for a direction to the Appellant No.1Hospital to provide the complete in-patient medical records pertaining
to the baby.
MAHARAJA AGRASEN HOSPITAL & ORS. v. MASTER
RISHABH SHARMA & ORS. [INDU MALHOTRA, J. ]
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5.16 Eventually, the Appellant No.1-Hospital provided a copy of
the medical records of the baby alongwith the Case Summary on
14.06.2007 after more than 2 years of discharge from the Appellant
No.1-Hospital.
5.17 The Respondent No.2-Complainant contends that when she
received these records, she was shocked to find that the medical
records mentioned an alleged ROP check-up was conducted on
26.04.2005 by Appellant No.4-Dr. S.N. Jha. The Respondent No.2Complainant contends that no ROP examination was conducted by
Appellant No.4-Dr. S.N. Jha.
5.18 On 04.08.2007, the Respondent No.2-Complainant addressed
a letter to the Medical Superintendent of Appellant No.1- Hospital. The
relevant extract of the said letter is reproduced hereinbelow for ready
reference:
"Under the above enclosure we have received photocopies
of some Medical Record (uncertified) along with a case
summary dated 13-06-2007.
The said summary states that on 26-04-2007 ROP
examination on our baby was conducted in the
Ophthalmological unit of your hospital and review
examination after two weeks was also advised.
We are rather intrigued by this observation as it does not
find mention anywhere in the Discharge Summary nor is there
any follow up advise.
Since both of us do not recollect any such examination
conducted in our presence or review advise and the said
medical record is also totally silent about it, kindly provide
us with the entire record of the Ophthalmological unit, name
of the Paediatric Ophthalmologist who had conducted the
ROP examination and his written report dated 26-04-2006."
[emphasis supplied]
5.19 Appellant No.1- Hospital replied to the letter on 24.08.2007,
wherein it was stated that:
"As per standard neonatal protocol, ophthalmological checkup was requested on 25-04-2005 to rule out ROP.
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The ophthalmological examination was done in the Nursery
on 26-04-2005 morning by Dr. S. N. Jha, Senior Consultant
Ophthalmologist. The written report of the Ophthalmological
unit is stated on page no.102 of the case record."
[emphasis supplied]
5.20 On 19.11.2007, Respondent Nos. 1 to 3 filed a Consumer
Complaint under Section 21 (a)(i) of the Consumer Protection Act, 1986
before the National Commission [Consumer Case No. 119 Of 2007]
claiming compensation of Rs. 1,30,25,000/- alleging medical negligence
and deficiency in service on the part of Appellant Nos. 1 to 4, and
Respondent No.4- the Gynaecologist, for compensation for the
permanent physical disability, mental agony, and social stigma, deprivation
of normal human life, companionship, torture and harassment etc.
5.21 The Delhi Medical Council vide order dated 14.12.2007
issued a warning to the Appellant No.1-Hospital for the delay in
supplying the medical records of the Respondent No.1-baby to the
Complainant.
5.22 The National Commission vide Order dated 29.02.2012
directed the Medical Board, AIIMS to give an expert opinion in the
matter.
5.23 The Medical Board of AIIMS submitted its Report dated
11.05.2012 to the National Commission. The Report states that as per
standard guidelines (National Neonatology Forum), new born babies who
are born at 32 weeks' gestation or less, should have their eyes examined
at 3-4 weeks of age and more frequent check-ups to be done thereafter.
Appellant No.4- Dr. S.N. Jha examined the baby at 24 days of age in
accordance with established protocol. If ROP screening does not reveal
any ROP, then repeat examination should be performed after 2 weeks.
The Report goes on to say that after discharge, the baby was brought
twice to the General OPD of the Appellant No.1- Hospital. There is
no record to show that the baby was brought after 2 weeks of
discharge to the Paediatrics OPD clinic when subsequent progression
could been assessed and treated on time.
6. The National Commission vide its Judgment and Order dated
10.05.2016 (bench comprising of Presiding Member J.M. Malik J. and
Dr. S.M. Kantikar, a qualified doctor) held as under:
MAHARAJA AGRASEN HOSPITAL & ORS. v. MASTER
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6.1 The National Commission was not convinced that the ROP
screening was done by O.P. No.5/Appellant No.4 on Respondent No.1baby. The progress sheet was devoid of any details about the ROP
examination, the method and instruments used, drugs (midrates/
tropicamide)/ anaesthesia used during ROP testing. The Ophthalmologist
has not mentioned any details of the dilation of the pupils, and the
findings by indirect ophthalmoscope, and the intra-ocular or extra retinal
findings. The standard ROP screening protocol was not followed. The
Nurses' Daily Records from 25.04.2005 to 27.04.2005 does not show
that any ROP examination was done by O.P. No. 5/Appellant No. 4.
6.2 The AIIMS Report did not comment about the details of the
ROP screening and the follow-up findings.
6.3 The National Commission held that the sequence of events
leading to ROP usually takes about 4 to 5 weeks, except in a small
sub-set of premature infants who develop rush disease in 2 to 3 weeks.
The routine screenings should begin at no later than 4 weeks after birth,
and possibly even earlier for infants at higher risk (2 to 3 weeks). It is
strongly recommended that one session of retinal screening be carried
before Day 30 of the life of any premature baby. The examination
should be done with the dilation of the pupil with Tropicamide 0.5% to
1% with Phenylapinephrine 2.5%.
6.4 The National Commission came to the conclusion that O.P.
No.5/Appellant No.4 did not conduct the ROP screening on the baby.
ROP screening is a team-work of the Paediatrician, Opthalmologist and
the NICU nurse. There is no medical documentation of the ROP
screening procedural details. The O.P. No. 5 should have performed
the retinal examination with binocular indirect opthalmoscope on dilation
of the pupil with scleral depression to ascertain avascular zone at the
periphery of the retina. The National Commission found that nothing
was forthcoming from Page 102 of the medical records. It appears to
be a bare visual examination done by O.P. No. 5 in haste to cover up
the case.
The National Commission was of the considered view that neither
the ROP screening was performed, nor was any advice for follow up
of ROP given to the Respondent No.2-Complainant/mother.
6.5 The National Commission held that the Respondent No.1Master Rishabh had been rendered blind for life, which could never
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really be compensated in monetary terms. The baby had lost his father
during the pendency of proceedings in 2013. The Respondent No.2Complainant had been pursuing the consumer complaint single-handedly
for almost a decade.
6.6 The National Commission awarded an amount of Rs.
53,00,000/- to the Respondent No.1-baby by applying the average
inflationary principle at a conservative rate of 1% p.a., keeping in mind
the fluctuations over the next 59 years. The National Commission
awarded an amount of Rs. 10,00,000/- to the Respondent No.2Complainant/mother who would have to take care of the blind child
throughout her life. A further amount of Rs. 1,00,000/- was awarded
towards costs of litigation. The National Commission held O.P. Nos. 2
to 5/ Appellant Nos. 1 to 4 to be jointly and severally liable to pay the
total amount of Rs. 64,00,000/- within 2 months of the Order. The entire
amount would carry interest at the rate of 9% p.a.
 Out of the total compensation awarded, Rs. 50,00,000/- would
be kept in a Fixed Deposit with a nationalised bank till Respondent No.1
attained the age of majority. The periodic interest on the deposit would
be paid to the Respondent No.2-Complainant/ mother till the child
attained the age of majority. The remaining amount of Rs. 14,00,000/-
would be released to the Respondent No.2-Complainant.
7. Aggrieved by the impugned Judgment passed by the National
Commission, C.A. No. 6619 of 2016 was filed by the Hospital and the
Doctors before this Court. The Complainants have filed Civil Appeal
No. 9461 of 2019 (Diary No. 15393 of 2019) before this Court for
enhancement of compensation.
 This Court vide interim Order dated 29.07.2016 ordered stay
of the operation of the impugned Judgment, subject to the Appellant
No.1-Hospital depositing 50% of the amount awarded by the National
Commission in this Court within 6 weeks.
On 07.09.2016, the Appellant No.1-Hospital deposited an amount
of Rs. 32,00,000/- in this Court. This Court vide Order dated 7.11.2016,
directed the amount to be kept in a Fixed Deposit with UCO Bank,
which was renewed from time to time. The fixed deposit is due to
mature on 17.02.2020.
8. We have heard the learned Counsel for all the parties and
perused the original Medical Records, pleadings and written submissions
filed by the parties.
MAHARAJA AGRASEN HOSPITAL & ORS. v. MASTER
RISHABH SHARMA & ORS. [INDU MALHOTRA, J. ]
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9. The learned counsel for the Appellants viz. the Hospital and
Doctors inter alia submitted that:
9.1 Respondent No.1-baby was pre-term (32 weeks) with signs
of HMD, and was admitted in Appellant No.1-Hospital on 02.04.2005
in a critical condition with little chance of survival. The baby was
admitted in the neo-natal ICU, and had to be immediately placed on
ventilatory support for 10 days. As per standard protocol, regular
investigations and Arterial Blood Gas (ABG) analysis were performed.
Blood component therapy was given. The critical condition of the baby
and possible neuro-development, visual and hearing sequel was informed
to the parents. The baby was given utmost care and attention by the
Doctors of the Appellant No.1-Hospital.
9.2 As per protocol, ophthalmological examination was advised
on 25.04.2005 to rule out ROP, as recorded at Page 100 of the medical
records. Appellant No.4-Dr. S.N. Jha, the Senior Ophthalmologist
conducted the ROP test on 26.04.2005, who found no ROP in
Respondent No.1-baby, as recorded by Appellant No.4 in his handwriting
at page 102 of the medical records. It was submitted that the Appellant
No.4 had advised a further review/check-up after 2 weeks in the
speciality OPD on Wednesay/Saturday between 4 p.m. to 6 p.m. The
parents of Respondent No.1-baby were explained all the problems which
may develop in a premature baby.
9.3 As per the Discharge Summary at Page 109 of the medical
records, the Complainants were advised to bring the Respondent No.1baby for a ROP and BERA check-up to the speciality OPD on
Wednesday/Saturday at 4 pm.
9.4 The Respondent No.2-Complainant brought the baby to the
General OPD of Appellant No.1- Hospital on 04.05.2005 after 8 days
of the first ROP check-up, and not after 2 weeks as advised.
Thereafter, the baby was brought on 13.07.2005, which was after 2
months again to the General OPD.
9.5 The Appellants relied on the Report of the Medical Board
constituted by AIIMS, which had vide their Report dated 11.05.2012
held that the baby was not brought to the Paediatrics OPD Clinic on
Wednesdays or Saturdays at 4 P.M. after two weeks of discharge, when
subsequent progression of ROP could have been assessed and treated
on time.
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9.6 The Appellant No.4/O.P. No.5 - Dr. S.N. Jha, a Senior
Ophthalmologist was engaged with the Appellant No.1- Hospital from
1997 to 2010. It was submitted on his behalf that on 25.04.2005, the
Paediatrics Dept. of the Appellant No.1-Hospital had requisitioned him
to perform the ROP examination. The Appellant No.4 submits that the
ROP was duly conducted by him on 26.04.2005. His finding is recorded
at Page 102 of the medical records, wherein he has recorded that he
did not find any evidence of ROP at that stage. It was further submitted
that it was not required to record the method of dilation of the pupil
and use of indirect ophthalmoscope. The standard medical literature
establishes that ROP manifests itself after 4 weeks of post-natal age.
In view thereof, the finding of Appellant No.4, who examined the baby
only on 26.04.2005 i.e. when the baby was 24 days old, there was no
evidence of ROP, cannot be faulted.
9.7 It was further submitted that the only requirement for
conducting an ROP examination is a chemical solution of Tropicamide
and Phenylephrine to dilate the eyes, which was available in the nursery,
and an indirect ophthalmoscope, which is available with all
ophthalmologists. who have specialised in the care of retina, and are
competent to carry ROP examination. It was submitted that the
Appellant No.4 was not required to record the procedure for conducting
the ROP examination, which is merely the retinal examination of the
baby by use of an indirect ophthalmoscope after dilation of the pupils.
9.8 Appellant No.4 - Dr. S.N. Jha was not consulted on the two
subsequent visits by the Respondent No.2-Complainant with the baby
on 04.05.2005 and 13.07.2005 in the Ophthalmology department, even
though he would have been available in the speciality OPD on
Wednesdays/Saturdays at 4 P.M.
10. The learned counsel for the Complainants -Respondent Nos.
1 to 3 (Appellant Nos. 1 to 3 in Civil Appeal No. 9461 of 2019/Diary
No. 15393 of 2019), inter alia submitted that the Respondent No.1baby has become permanently blind on account of the gross medical
negligence by the Hospital, and the three specialist doctors i.e two
consultant Paediatricians, and the Ophthalmologist, for the following
reasons:
10.1 The Appellant Nos.1 to 4 did not at any stage conduct the
ROP examination of the baby, who was a premature baby, nor was
the family ever informed about the high risk of ROP in a premature
baby, and the necessity for regular check-ups.
MAHARAJA AGRASEN HOSPITAL & ORS. v. MASTER
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10.2 The Appellant No.1-Hospital had deliberately withheld the
medical records for over two years after discharge. At the time of
discharge on 29.04.2005, the Complainants were provided with a
Discharge Slip, which did not disclose any instructions advising that the
infant be brought for ROP examination (the Discharge Slip in Para 5.4
above).
In this Discharge Slip, there is no advice of ROP having been
conducted, or follow-up of ROP, nor was the risk of ROP explained
by the Appellant Nos. 2 and 3 to the Respondent No.2-Complainant.
10.3 The Complainants have strongly contended that parts of the
medical records, which were provided after 2 years in 2007, had been
fabricated and interpolated as an afterthought to escape liability.
It was submitted that a bare perusal of the noting dated
26.04.2005 made in the medical record by Appellant No.4- the
Ophthalmologist, shows that is merely a scribble, and is illegible. The
Complainants have strongly refuted the case of the Appellants that the
ROP was conducted by Appellant No.4 on 26.04.2005.
The Complainants have supported their submission on the basis
of :(i) the progress sheets, which contain no details of the ROP
examination; (ii) there is no mention of the ROP examination in the
Nurses' Daily Record; (iii) ROP exam is conducted with the help of
dilation by using Cyclopentolate (0.5%) and Phenylephrine (2.5%) drops
to be applied 2 to 3 times, about 10-15 minutes apart. There is no record
with respect to the administration of the these medicines to the baby;
(iv) there is no mention of the ROP test in the Discharge Slip of
29.04.2005;
10.4 The Complainants contended that if the standard protocol
had been carried out by the Doctors, the ROP would have been detected
at an early stage, and could have been cured, since it is medically known
to be reversible at the early stages.
On account of the negligence of the Appellant Nos. 1 to 4, the
ROP was discovered only at Stage 5, by the Shroff Charity Eye
Hospital, when the baby was 8 months old. By this time, the ROP
became irreversible, and resulted in total blindness of the Respondent
No.1-baby.
10.5 It was further urged that the quantum of compensation
awarded by the National Commission was grossly inadequate and
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insufficient. The National Commission failed to take into account
variables such as the additional educational expenses in special schools,
transportation costs, costs of purchasing, maintaining and upgrading
Visual Aid/Assistive Devices, costs of permanent nursing/attendant care
and miscellaneous medical expenses. It was further contended that the
average rate of inflation taken by the National Commission i.e. a
conservative rate of 1 % per annum for the next 59 years, was grossly
undervalued. The Complainants sought enhancement of the
compensation to the extent of Rs. 9,87,84,000/-.
11. Discussion and Analysis
11.1 Inordinate Delay in Supply of Medical Records
We find that there was an inordinate delay of over 2 years in
making the Medical Records of Respondent No.1-Master Rishabh
available to the Respondent No.2-Complainant. Regulation 1.3.2 of the
IMC Regulations casts a statutory obligation upon every doctor/hospital
to provide medical records within 72 hours of the request being made
by the patient.
11.1.1 The Medical Council of India has framed the IMC
Regulations with the previous approval of the Central Government, in
exercise of the powers conferred by Section 20A read with Section
33(m) of the Indian Medical Council Act, 1956. The IMC Regulations
came into force on their publication in the Gazette of India on 06.04.2002,
and have statutory force.
11.1.2 Regulation 1.3.2 of the Indian Medical Council
(Professional Conduct, Etiquettes and Ethics) Regulations, 2002 provides
as under:
"1.3 Maintenance of medical records:
1.3.1 Every physician shall maintain the medical records
pertaining to his /her indoor patients for a period of 3 years
from the date of commencement of the treatment in a standard
proforma laid down by the Medical Council of India and
attached as Appendix 3.
1.3.2. If any request is made for medical records either by
the patients / authorised attendant or legal authorities
involved, the same may be duly acknowledged and
documents shall be issued within the period of 72 hours.
MAHARAJA AGRASEN HOSPITAL & ORS. v. MASTER
RISHABH SHARMA & ORS. [INDU MALHOTRA, J. ]
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1.3.3 A Registered medical practitioner shall maintain a
Register of Medical Certificates giving full details of
certificates issued. When issuing a medical certificate he /
she shall always enter the identification marks of the patient
and keep a copy of the certificate.