A.P. Sahi, President

1. This is a complaint alleging medical negligence against the OPs regarding the treatment of late Purunananda Mukhopadhyay, a 57 years old person, who according to the complainant died because of medical mismanagement of the OP - Belle Vue Clinic and negligence of Dr. Manoj Agarwal, one of the OPs herein. The allegation is that the patient had been from inception suffering from a prominent respiratory problem that was ultimately found to be a cancer of the lungs and this was neither diagnosed nor treated in spite of all available symptoms. The appropriate tests to confirm the same were not carried out CC No. 354 of 2014 Page 1 promptly in spite of the fact that the patient remained in the OP-1 Hospital for about 42 days. The patient had to be thereafter shifted to another hospital namely R.N. Tagore International Institute of Cardiac Sciences (RNTIICS) where in spite of all efforts and the deteriorating condition of the patient due to carcinoma of the lungs, he could not be saved. He ultimately died on 14.09.2012 after a surgical process stated to have been carried out by Dr. Amitava Chakraborty on 08.09.2012.

2. Allegations have been made against all the doctors including OP-4 Dr. S.K. Biswas, OP-5 Dr. Manoj Agarwal, OP-6 Dr. Samiran Banik, OP-7 Dr. Anirban Neogi and OP-8 Dr. Amitava Chakraborty. The allegations in the complaint have been made specifically that the patient was admitted at the OP-1 Hospital on 25.07.2012 under Dr. Manoj Agarwal, the OP-5 who is a Gastroenterologist at Belle Vue Clinic for the treatment of liver abscess. The complainant alleged that the patient had blood sugar and blood pressure that was under control with the medicines that he was taking prior to the admission, but this was altered after his admission and both these parameters went out of control. No steps were taken to attend to the aforesaid problem and the patient had low grade fever, infection and pain. It was followed by the swelling of the abdomen and the patient developed breathing trouble on 28.07.2012 itself.

3. Even though, Dr. Manoj Agarwal did make a visit thereafter, but in spite of having noted the breathing trouble, appropriate steps were not taken in spite of the fact that on a physical examination of the chest of the CC No. 354 of 2014 Page 2 patient, it was evident that the patient was suffering from acute breathing trouble. The patient was transferred to ICCU on 29.07.2012 and on an X-ray, it was revealed that there was fluid accumulating in the chest. Accordingly, about 2½ litres of water was extracted and support of oxygen was required. The patient had high blood pressure and had a rapid pulse rate. Yet, no proper treatment was given and the patient continued to suffer.

4. However, at that stage, Dr. Neogi, the OP-7 was called upon who was a Chest Specialist. Dr. Biswas, a Cardiologist also attended on the patient and one Dr. Moitra from the Critical Care Department also joined the team to attend on the patient, but no steps to attend to the lung problem of the complainant was taken. It has been pointed out from the record that breathlessness and respiratory problems did continue and fluid accumulated in the lungs that was being aspirated. The respiratory distress was noted and recorded on 30.07.2012 as well, but no proper tests were carried out in spite of the fact that severe respiratory discomfort continued and the patient was put on nebulization on 31.07.2012. The X-ray conducted on 31.07.2012 indicated right sided huge pleural effusion. An X-ray of the anterior and posterior view was once again suggested and on 31.07.2012, it was recorded that about 1400 ml of pleural aspiration was done and the fluid drained. On 01.08.2012, pleural fluid about 350 CC was aspirated CC No. 354 of 2014 Page 3 and the contents thereof were haemorrhagic. According to the complainant this clearly meant that it had some blood content.

5. Accordingly, on 02.08.2012, the hospital sheet records an advice for ultrasonography guided pleural aspiration and to be sent for malignant calculation. In spite of this, only the main treatment of liver continued and on 03.08.2012 it was opined that the abscess area of liver may not yield adequate material by needle aspiration, therefore the same may be held up and an FNAC test may be attempted. The oxygen level of the complainant however was being maintained and on 03.08.2012, it was 100%. It was shown to vary from 95 to 98% later on on the same day, but the oxygen level trickled between 70 - 74% on 04.08.2012. The contention on behalf of the complainant is that with these symptoms and other pathological tests, the condition of the complainant did not improve and no attempt was made to further probe into the lung infection. On 07.08.2012, an X-ray chest was examined and it was clinically opined that acute left ventricular symptom was located and nebulisation was continued. The patient was suffering from severe respiratory distress which was recorded and the oxygen level again deteriorated to 79% on 08.08.2012. The chest drainage was again carried out by Dr. Goswami and other symptoms continued to indicate the deteriorating condition of the patient.

6. With all these allegations, the matter was heard on 15.07.2024 when Mr. Keswani, learned senior counsel for the complainant, advanced his CC No. 354 of 2014 Page 4 submissions that came to be recorded in the order which is extracted hereinunder:

Complainant's counsel has advanced his submissions contending that the husband of the Complainant was admitted in the Hospital on 25.07.2012 and the initial diagnosis made by the Hospital and the attending doctors was of liver abscess. According to the learned counsel, as the days progressed, the respiratory problem of the patient started increasing which symptoms were noted and, thereafter drainage of fluid from the lungs was carried out, which symptoms indicated lungs being infected. This, according to Complainant was also supported by the TLC blood count which was ever on the rise. That did indicate that care ought to have been taken to diagnose the aforesaid symptom relating to lungs, but unfortunately neither the attending doctors or the consulting doctors either diagnosed or attempted to diagnose the symptoms.

Learned counsel submits that by 29.07.2012, these symptoms had become more prominent and on 01.08.2012 haemorrhage was noticed when tests were carried out. The said symptoms according to the learned counsel was one of the most prominent ones that ought to have been investigated promptly and, immediately, which would have aided in arriving at a correct diagnosis of the real infection from which the complainant's husband was suffering.

Learned Counsel submits that this absence of care in carrying out the correct diagnosis of the symptoms that had started occurring and emerging after 4-5 days of the admission of the patient, was completely not traversed, for reasons best known to the OPs. It is submitted that the status of accumulation of the fluid in the lungs is evident from the fact that it was atleast on 5 occasions that the drainage was carried out and which by itself was another symptom of the failure of the lungs being caused by some severe infection. Learned Counsel submits that these underlying conditions seem to have been ignored and not pursued which resulted in further deterioration of the condition of the patient.

The fact that the patient was suffering from adeno carcinoma of the lungs got confirmed when OP themselves CC No. 354 of 2014 Page 5 as late as on 26.08.2012 suspected bronchogenic carcinoma, which is recorded in the hospital sheet. Learned Counsel further submits that these symptoms including the haemorrahage that was noted on 01.08.2012 was also sought to be investigated for suspected malignancy which is indicated in the hospital notesheet on 02.08.2012. All these symptoms noted coupled with the drainage which was carried on 4 occasions as well as the haemorrhage that was noted on 01.08.2012 to demonstrate that the OPs were suspecting and apprehending a severe infection possibly carcinoma yet they did not chose to carry out any further investigation either in the shape of MRI or Pet scan.

Learned Counsel submits that there are no reports recorded of the early stages of X-rays that were done and such absence of recording of symptoms also might have added to the lapses, which continued and persisted resulting in the patient not getting the appropriate treatment on account of absence of correct diagnosis.

Learned Counsel submits that this error was a serious error that tentamounts to medical negligence not only on the part of the doctors but it is also a vicarious liability of the hospital. Counsel for the complainant relied upon the judgments in the case of Malay Kumar Ganguly Vs. Dr. Sukumar Mukherjee and Ors. (2009) 9 SCC 221 (Para Nos. 127, 131 and 157), Maharaja Agrasen Hospital and Others Vs. Master Rishabh Sharma and Others (2020) 6 SCC 501 (Para nos. 12.4.13, 12.4.21), Savita Garg Vs. Director, National Heart Institute (2004) 8 SCC 56 (Para 10 and 16). Learned Counsel for the Complainant has completed his opening arguments. Learned Counsel for OP Mr. Vikas Nautiyal prays that he may be granted sometime to assist the Bench as the arguments would consume considerable time, as prayed.

Let the matter be listed on 13.12.2024 for final hearing.

7. It was pointed out by him that on 26.08.2012 bronchogenic carcinoma was suspected. It was advised to carry out 3D CT Thorax / 3D Bronchoscopy, Fiberoptic Bronchoscopy, BAL, Brushing and Biopsy. The CC No. 354 of 2014 Page 6 other advice given was for removal of the fluid, CT guided ultrasonography, medical thoracoscopy, open thoracotomy and decortification with an advice to transfer the patient to ICCU in case the patient deteriorates. The contention of Mr. Keswani is that from 25.07.2012, a period of almost one month expired when for the first time this diagnosis was made on 26.08.2012 with advice of the tests referred to. In spite of this, no such tests as advised were carried out. The matter was heard again and on 25.08.2025, the following order was passed:

The arguments on behalf of the complainant had been noted earlier and the learned counsel has advanced his submissions once again. However, Mr. Nayak has appeared on behalf of the opposite parties No.1 & 5 and Mr. Nautiyal has invited the attention of the Bench to the order passed by this Commission on 05.05.2016 to urge that the complaint is sought to be pressed only against opposite parties No. 1 & 5 and not against any of the other opposite parties.

The contention of Mr. Nayak is that once this claim has been given up against the other opposite parties then there cannot be any deficiency as against the opposite parties No.1 & 5 for any fault or alleged neglect on behalf of those other opposite parties. Mr. Nayak submits that for this purpose he would attempt to assist the Bench alongwith the respective documents particularly the treatment sheets to establish that there is no indication of any negligence and that the patient had been attended to appropriately with all the possessed skill as available according to the qualifications of opposite party No.5 who cannot be blamed for any alleged negligence. He submits that as a matter of fact this is not a case of any wrong diagnosis or neglect of diagnosis on the part of the opposite party No.5, he being Gastroenterologist who had performed his part and later on a discovery was made with regard to the other medical complications CC No. 354 of 2014 Page 7 for which he cannot be held responsible. He however submits that he may be permitted to advance his submissions alongwith the other documents which have been filed on some other date.

Let the matter be listed on 17.11.2025.

8. The matter could not be heard thereafter due to some adjournments sought when it was again heard on 13.04.2026, when the following order was passed:

Heard Mr. Nayak, learned Counsel for the Opposite Party No.1 and 5. Mr. Nayak today has advanced his submissions with the help of the Written Version filed by Dr. Manoj Kumar Agarwal, Opposite Party No.-5.

He has commenced his arguments by inviting the attention of the Bench to the Order passed by this Commission on 05.05.2016 whereby the Complainants Counsel made a statement that the Complaint is being pressed only against the Opposite Party No.1 and

5. The Complaint was accordingly admitted only in respect of the said two Opposite Parties. Mr. Nayak submits that coming to the allegations made against the other Opposite Parties, it is evident that the Complainant has chosen to level allegations against all of them and pointing out to the negligence stated to have been committed by them. He submits that since it was a collective management of the patient by all the doctors, the choice of the Complaint to proceed only against the Opposite Party No.1 and 5 is not justified. He has urged that the nature of the allegations against the other doctors is equally serious but the Complainant for reasons best known has chosen not to proceed against the. He therefore submits that from that point of view the Opposite Party No.-5 also cannot be held liable inasmuch as he had to the best of his abilities treated the patient and has given his explanation in detail from Paragraph No.-9-14 of the Reply/Written Version which is on record. He has then read out the conclusion in Paragraph No.-20 to urge that given the entire history and chronology of the attendants by the Opposite Party No.-5 who has performed to the best of his CC No. 354 of 2014 Page 8 ability and capacity. There is no scope for holding Opposite Party No.- 5 to be liable for any alleged negligence much less a medical negligence. He submits that the arguments with regard to the contentions raised against the Opposite Party No.-1 are also to be concluded for which he seeks some other day to be appointed for continuing the hearing of the matter.

It may also be pointed out that IA No. 3131 of 2020 had been moved on behalf of the Complainant for seeking a direction for issuing notices to the Opposite Parties No. 6 - 8 once again. This Application was taken up and was dismissed vide order dated 03.03.2020.

Accordingly let the matter be now listed on 13.07.2026

9. The case was finally heard on 13.07.2026 when Mr. Keswani, learned counsel for the complainant pointed out that when the patient was shifted to the other hospital on 06.09.2012, the Admission Sheet indicates the presence of an ulcer which he submits was a bedsore that had developed at the Belle Vue Clinic itself and had remained uncared for. According to him it was not treated and this was a clear negligence on the part of the OP-1.

10. Mr. Nayak and Mr. Nautiyal have appeared for the OPs - 1 and 5 namely the hospital and Dr. Manoj Agarwal.

11. They submit that the main plank of the argument of the learned counsel for the complainant has been that the respiratory distress of the patient that was present right from the beginning of his admission at the OP-1 clinic on 25.07.2012 continued till 41 days till he was discharged on 05.09.2012. The submission is that no care was taken in respect of this problem of the patient and no due care was taken, apart from the CC No. 354 of 2014 Page 9 allegation that the hospital staff did not take care of the bedsore that was detected when the patient was transferred to the other hospital.

12. Learned counsel for the OPs - 1 and 5 therefore urged that these allegations do not hold water, inasmuch as no symptom of any bedsore was anywhere recorded throughout the stay of the patient in the OP-1 hospital nor any complaint was made in this regard. Nonetheless, the recording in the Admission Sheet of the R.N. Tagore International Institute of Cardiac Sciences does not clarify an exact description of a bedsore, as neither the location of the ulcer or its characteristic has been explained to presume that the said ulcer was a bedsore that was attributable to the stay of the patient at the OP-1 hospital.

13. Coming to the issue of no diagnosis or treatment regarding the respiratory problem of the patient is concerned, they have urged that the hospital i.e. the OP-1 had clearly arranged for taking care of the problem by introducing OP-7 Dr. Neogi as a Chest Specialist. Dr. Manoj Agarwal was a Gastroenterologist who was looking after the liver abscess and therefore appropriate steps were taken to engage the services of a Chest Specialist, who continuously attended on the patient as recorded in the hospital sheets. Not only this, it was Dr. Neogi who took care of the respiratory problems of the patient.

14. They also pointed out that in spite of all these allegations made against the doctors namely the OPs- 4 to 8 in particular, what transpired in the complaint is that deserves to be noted. For this, learned counsel invited CC No. 354 of 2014 Page 10 the attention of the Bench to the order passed by this Commission on 05.05.2016 which is extracted hereinunder:

I have heard the learned counsel for the complainant. After some hearing, he presses the complaint only against OP No.5 Dr. Manoj Agarwal and OP No.1 Belle Vue Clinic. The complaint is admitted subject to just exceptions against the above-referred two opposite parties.

Notice of the admission of the complaint be issued to opposite party Nos. 1 & 5 for 12.7.2016.

15. Learned counsel submits that the complaint was pressed only against the OP-1 Hospital and the Gastroenterologist who was treating the liver abscess namely OP-5 Dr. Manoj Agarwal. The complaint was admitted only against these two OPs and notices were issued accordingly. The submission therefore is that none of the other OPs including Dr. Neogi, who was the Chest Specialist taking care of the respiratory problems of the patient, were proceeded against at the instance of the complainant and her counsel. Thus, it was only OP-1 hospital and OP-5 Dr. Manoj Agarwal, who defended themselves by filing their responses and affidavit of evidence. The matter thereafter remained pending for exchange of affidavits and written synopsis.

16. The complainant, however long thereafter moved a fresh application I.A. No. 3131/2020 praying that in view of the allegations and the response of the OPs, notices deserve to be issued to the OP-6, Dr. Samiran Banik, the Resident Medical Officer of the Clinic, OP-7, Dr. Anirban Neogi, the Chest Specialist and the OP-8, Dr. Amitava CC No. 354 of 2014 Page 11 Chakraborty, the Thoriac Surgeon, who conducted the surgical procedure on 08.09.2012 at R.N. Tagore International Institute of Cardiac Sciences. The application enlisted and reiterated the allegations against these three persons urging that they along with Dr. Manoj formed a team. It was alleged that in spite of the diagnosis of the respiratory problem extending to carcinoma, no biopsy was done, no FNAC test was performed and no 3D CT Scan was carried out. Apart from this, the same allegations were framed against Dr. Amitava Chakraborty that he also did not advice any of these tests or even a PET Scan. This application was taken up on 03.03.2020 when this Commission recorded that the learned counsel for the complainant presses the application for issuance of notice against Dr. Neogi and Dr. Amitava Chakraborty, the OPs-7 and 8 only. After considering the submissions, the application was rejected and the complaint was heard.

The order dated 03.03.2020 is extracted hereinunder:

This Application has been filed by the Complainant seeking a direction to issuance of notice to the Opposite Party No. 6-8.

At the time of making submission on the said Application, Mr. Prasenjit Keswani, Learned Counsel for the Complainant, restricted the issuance of notice to the Opposite Party No.-7 and 8 only. Even though from the perusal of the Complaint, we find from the Page No. 22 and 23 of the Paper Book that some averments have been made against Opposite Party No. 7 and 8 but in the prayer no relief has been claimed against the Opposite Party No. 7 and 8, relief only has been claimed as against the Opposite Party No.-1.

CC No. 354 of 2014 Page 12 We therefore find no good ground to issue notice to the Opposite Party No. 7 and 8 and accordingly the said Application is rejected.

Arguments heard in part.

List the matter on 27.04.2020

17. Learned counsel therefore urged that no scope of any argument is left as against the Chest Specialist Dr. Neogi, who was looking after the respiratory problem of the patient and Dr. Amitava Chakraborty who performed the surgical procedure in the other hospital on 08.09.2012. They therefore submit that this claim of any negligence against the OPs

- 4, 6, 7 and 8 stood voluntarily waived and abandoned by the complainant against these OPs. They therefore submit that any allegations regarding the respiratory problem cannot be tried or tested in the absence of these parties who had been earlier impleaded, but against whom the complaint was not pressed after it was filed as recorded in the order dated 05.05.2016 extracted hereinabove, and a further attempt to revive the complaint against them through I.A. No. 3131/2020 also failed with the rejection of the said application.

18. It is therefore submitted by the learned counsel for the OPs that in the absence of any negligence in respect of the treatment of the liver abscess as alleged against the OP-5 or any material to support the same, the main argument advanced with regard to the respiratory CC No. 354 of 2014 Page 13 distress does not survive and therefore the complaint deserves to be consigned.

19. Mr. Keswani in rejoinder vehemently opposed the contentions and pointed out that so far as the presence of bedsore is concerned, the same is substantiated by the noting of an ulcer in the Admission Sheet dated 06.09.2012 of the R.N. Tagore International Institute of Cardiac Sciences which establishes that it was present prior to the said date as a bedsore will not erupt overnight, and was therefore recorded as an existing skin ulcer. On the issue of the allegations in respect of respiratory distress, he submits that OPs - 7 and 8 were a team along with OP - 5 and the complaint has been continued against OP-5 as well, and over and above that, the hospital is being sued in its comprehensive capacity which includes the engagement of all doctors by it and the hospital is directly and vicariously responsible and also liable for any negligence on the part of the doctors who were engaged to take care of the patient including OPs - 7 and 8. He submits that the negligence on their part by not getting the CT Scan test or biopsy carried out in spite of a delayed diagnosis of carcinoma of the lungs clearly adds to the negligence of the doctors attending on the patient who were engaged by the hospital. He therefore submits that neither the OP-5 under whom the patient had been admitted, nor the OP-1 Clinic can absolve itself of the liability of negligence which stands established on the basis of record.

CC No. 354 of 2014 Page 14

20. Having heard the learned counsel for the parties and having considered the submissions raised, we find that proper and necessary parties had been arrayed in the complaint. The complaint regarding negligence is clearly referable to the doctors against whom the allegations have been made in the complaint and even otherwise the question of negligence is clearly related to the skill, excellence and expected performance level of the doctors. Unless any negligence is established regarding the diagnosis, treatment and post-treatment care by the doctors, the hospital cannot be held directly responsible for any such act or omission of the doctors. The hospital can be held vicariously liable and to that extent Mr. Keswani is correct in his submission that all the decisions of the Apex Court including the decision in the case of Maharaja Agrasen Hospital vs. Rishabh Sharma, (2020) 6 SCC 501, it has been held that the hospital can be sued for its vicarious liability as it is the hospital which engages the doctors for the treatment of the patients admitted in it. There cannot be any dispute about this legal proposition but unless a finding of negligence is recorded against the doctors, a consequential vicarious liability of the hospital cannot be sued independently.

21. The hospital can be held independently liable for any negligence alleged against it, which may include incidents of nosocomial infections, inadequate hospital arrangements for the management of the patient, lack of essential facilities in a Super Speciality like a blood bank or any CC No. 354 of 2014 Page 15 such facilities that are to be provided by the hospital, but so far as the negligence of the doctors is concerned, the vicarious liability of the hospital would arise only after any negligence is proved against the doctors. In such circumstances, the presence of the doctors as a party is necessary to answer the allegations of negligence. The hospital records and the treatment papers have to be produced by the hospital and if there is any deficiency in the maintenance of such records by the hospital then too, it can be held liable, but medical negligence in respect of treatment of a patient by a doctor can translate into vicarious liability of the hospital only if the doctor is held liable.

22. In the instant case, we unfortunately find that the initial complaint itself proceeded only against the hospital and the Gastroenterologist Dr. Manoj Agarwal, OP-5. We have not been able to gather any negligence in the performance of Dr. Manoj Agarwal who had been throughout treating the liver abscess of the patient. He was not a chest specialist. It is for this reason that Dr. Neogi, OP-7 was brought in for that treatment. The allegations made against Dr. Manoj Agarwal are enumerated in paragraph 31(I) of the complaint, which is as follows:

(I) Negligence of Dr. Monoj Agarwal Dr. Manoj Agarwal, (the Opposite Party No. 3) under whom the patient was admitted did not take any step to drain the liver abscess at the first instance. All renowned gastroenterologists opined that the liver abscess is to be drained. If the abscess had been drained immediately after admission of the patient and if, even after draining the infection continued (which was most likely to continue since CC No. 354 of 2014 Page 16 abscess was not the actual source of infection as detected later), the doctors would have got an indication that there was some other source of infection/ailment and could have acted accordingly and made other investigations. The draining of abscess was done ultimately on 31st August, 2012, that is more than one month after the admission of the patient and the same was of no help. More than one month was wasted on account of negligent attitude of Dr. Agarwal as well as Dr. Neogi who is a chest specialist who failed to detect the actual disease of the patient though he attended the patient each and every day. Every day the condition of the patient was deteriorating. It was pointed out to him repeatedly by the patient party but he paid no heed to their requests. Moreover, strong antibiotics were administered to the patient while water intake was restricted to 1½ litter per day. As a result the kidney of the patient was seriously damaged.

The patient used to take some medicine before admission to hospital and his blood pressure and sugar was under control. However, after admission to Bellevue all the medicines were changed and the sugar level and blood pressure shot up and went out of control. Dr. Agarwal referred the patient to one doctor after another from different streams. But not for once did he refer the patient to an oncologist although the condition of the patient was deteriorating day by day, he was losing weight and strength and his blood count was going down. Nor did Dr. Agarwal advise 3D CT Scan as suggested by Dr. Neogi. He also did not advise Pet CT Scan which was useful in investigation of cancer, although as per his advise the patient had to undergo numerous blood tests and scans against very high charges which were ultimately of no help. If Pet Scan and/or 3D CT Scan had been done or if an oncologist had been consulted adenocarcinoma could be detected earlier, proper treatment could have been given to the patient much earlier and in that case probably he would not have died so early.

On 29th July, 2012 Dr. Agarwal examined the patient at 9.30 am with the help of stethoscope and stated that the chest of the patient was clear. However, at 2.30 pm. the patient suffered acute trouble breathing and hydrocortisone injection was administered and the CC No. 354 of 2014 Page 17 patient had to be transferred to ICCU. X-Ray was done and it reveled that there was water accumulation in the chest. Water was tapped and 2½ liters of water came out.

Dr. Agarwal examined the patient at 9.30 a.m. and said that the chest of the patient was clear, while at 2.30 p.m. it was found that 2½ litres of water had accumulated in the chest of the patient. It is not possible to accumulate two and a half liter water suddenly within five hours. Last night breathing trouble was there, abdomen of the patient was swelled, everything was reported to the attending doctor. But the Doctor was not serious at all to treat the patient. It is surprising that the Doctor did not get any abnormal sound by putting the stethoscope when two and a half liter water was aspirated. The patient was under the care of Dr. Agarwal for 45 days. But during this long period he failed to make any diagnosis nor did the patient receive proper treatment. He treated the patient most casually and in a half hearted fashion which ultimately pushed the patient to death.

23. The aforesaid allegations have been controverted by Dr. Manoj Agarwal clearly stating that the drainage of the liver abscess was not actual source of infection. Even otherwise, it was made after one month of the admission of the patient and was of no help. The allegation then takes a turn by combining negligence against Dr. Manoj Agarwal along with Dr. Neogi, the Chest Specialist alleging failure to detect the actual infection. Since the patient according to the complainant was suffering from cancer, an Oncologist ought to have been consulted which was not done and Dr. Manoj Agarwal did not follow the advice of getting the scan conducted as suggested by Dr. Neogi nor did he advise a PET scan. Accordingly, had such tests been carried out, the situation would have been different. The method of examination by Dr. Agarwal and CC No. 354 of 2014 Page 18 indicating that the chest of the patient was clear was, according to the complainant an incorrect diagnosis, inasmuch as the fluid had accumulated in the chest of the patient. The patient remained under his care throughout, but he failed to make any diagnosis.

24. The aforesaid allegations against Dr. Agarwal have been denied in the W.S. filed by Dr. Agarwal on 01.07.2016. Dr. Agarwal has disclosed his qualifications in Gastroenterology and M.D. in General Medicine together with other qualifications in the subject in paragraph 3 of his reply as well as his reply of about 21 years having worked at hospitals of repute including Christian Medical College, Vellore and St. James's University Hospital, Leeds, U.K. The reply then narrates the diagnosis and the treatment undertaken by Dr. Agarwal from paragraph 6 onwards and then the day to day treatment conducted by him which stands narrated in paragraph 7 with effect from 26.07.2012 upto 06.09.2012 when the patient was discharged as per the request of the family of the patient. We have perused the same and we find an extensive and detailed answer giving explanation to the treatment conducted stepwise and the status of the patient. The consultation with Dr. Neogi and the continuous review by him in respect of his lung problem has been explained in detail and the patient was being treated as advised by him including the medicines that were required for the same treatment. This detail narration clearly indicates that so far as the liver abscess is concerned, the same was treated thoroughly and there CC No. 354 of 2014 Page 19 is no material to contradict the explanation given by Dr. Manoj Agarwal in respect of the treatment carried out by him regarding the abscess of liver and also the consultation regarding the respiratory distress that was being continuously taken care of Dr. Neogi.

25. The OP-1 Hospital has also filed a written version indicating the continuous management of the patient and symptoms of clinical improvement indicating that the patient was responding particularly with regard to the liver abscess. The management of blood sugar levels and blood pressure was monitored by Dr. Biswas and the written statement of the OP-1 Hospital clearly records the same. The OP-1 has affirmed the treatment of the respiratory problem of the patient by Dr. Neogi and timely interventions to indicate that there was a continuous monitoring of the problem with efficacy. Thus, the liver abscess had been adequately treated by Dr. Agarwal and the lung problem was taken care of promptly by Dr. Neogi.

26. The negligence alleged against the clinic have been stated in paragraph 31(vi) where an allegation about a bedsore has been made. This has been specifically denied in paragraph 9(b) of the written statement filed by the hospital stating that the patient never developed any pressure ulcer during the patient's stay at the Belle Vue Clinic. There is therefore no evidence to correlate the existence of any ulcer diagnosed as a bedsore to connect it with the stay of the patient at Belle Vue Clinic.

CC No. 354 of 2014 Page 20

27. It is only after the death of the patient that the present complaint has been taken up with a major plea of the failure of diagnosis and treatment in respect of respiratory distress of the patient. The allegations have been made, but once they have not been pressed against the concerned doctors including OP- 7 and 8, right from the inception, then the said doctors obviously would stand prejudiced, if any findings are recorded in their absence, and consequently the hospital OP-1 cannot be held liable for the same.

28. Apart from this, the second attempt made to reintroduce the allegations against the OPs-7 and 8 failed with the passing of the order dated 03.03.2020. It was candidly informed by Mr. Keswani that the order dated 03.03.2020 was nowhere questioned or challenged before any higher forum. We may point out that orders passed by the Commission attain finality keeping in view of the provisions of Section 24 of the 1986 Act i.e. pari materia to Section 69 of the 2019 Act. Section 24 is extracted hereinunder:

24. Finality of orders.--Every order of a District Forum, the State Commission or the National Commission shall, if no appeal has been preferred against such order under the provisions of this Act, be final.

29. In the absence of any challenge raised to the order dated 03.03.2020, whereby the reopening of the complaint against the OPs-7 and 8 had been specifically rejected, we find ourselves incapacitated to proceed to hear any allegations regarding respiratory distress of the patient against CC No. 354 of 2014 Page 21 OPs-7 and 8 who were the treating doctors. The passing of the order dated 03.03.2020 clearly resulted in the termination of proceedings against the OPs-7 and 8 who remained unrepresented and cannot be proceeded against as it would violate the principles of natural justice and would be clearly prejudicial to the said OPs. Since we would be lacking in jurisdiction to record any findings against the OPs-7 and 8, we are not in a position to legally sustain the arguments of the complainant against the OP-1 on the basis of the allegations against the OPs-7 and 8. Neither any direct nor any vicarious liability can be fixed against the OP-1 hospital for the reasons above.

30. We may observe that the principles as to who would be a necessary or a proper party in a contested litigation has been reflected upon by the Apex Court in the context of administrative authorities and broadly the principles have been enunciated in the case of Udit Narain Singh Malpaharia vs. Additional Member, Board of Revenue, Bihar & Anr., AIR 1963 SC 786 that has been followed in a large number of later decisions. Even though powers can be exercised in appropriate cases to implead a proper and a necessary party, but it cannot be done against the wishes of the complainant as happened in this case when orders were recorded at the instance of the complainant on 05.05.2016 as already discussed above. However, the peculiarity in the present case is that subsequently I.A. No. 3131/2020 was moved for rejuvenating the complaint against OPs-7 and 8 but the same was CC No. 354 of 2014 Page 22 rejected vide an order dated 03.03.2020. Consequently as already held hereinabove, in the absence of any challenge to the said order, the contest on negligence as alleged cannot proceed against the said OPs and consequently, the same cannot be examined for any vicarious liability against the OP-1 Hospital.

31. We have already noted hereinabove that there is no evidence to substantiate the existence of a bedsore in the OP-1 hospital and the noting of ulcer on the skin at the R.N. Tagore International Institute of Cardiac Sciences is only referable to a tick mark on the Admission Sheet without any description of the ulcer or the bedsore or its location to substantiate the same.

32. Thus, none of the contentions as raised on behalf of the complainant are sustainable either in fact or in law. We therefore find no good ground or reason supported by any evidence to grant any relief in the present complaint which is accordingly dismissed.