1. Appellants i.e. (OP-1 & 2 in the Complaint preferred before the Ld. State Commission), challenge Order dated 16.02.2018 passed by the Ld. Delhi State Consumer Disputes Redressal Commission (hereinafter referred to as the State Commission), whereby OP-1 & 2 were held guilty of negligence and directed to pay compensation as under:-

"In view of the discussion above, I am of the considered opinion that both the OP-1 i.e. Vimhans Hospital and OP-2 Dr. S M Tuli are guilty of negligence. OP-1 Vimhans Hospital is directed to deposit/pay an amount of Rs. 20,00,000/- in Consumer Welfare Fund of the State maintained by this Commission. Out of this amount, an amount of Rs. 5,00,000/- shall be paid to the complainants. OP-2 Dr. S M Tuli is directed to pay an amount of Rs. 2,00,000/- to the complainants for medical negligence on his part. The abovesaid payment shall be made by the OPs to the complainants within a period of sixty days from today failing which the amount shall carry interest @ 18% p.a. after the expiry of the said period. Complaint is accordingly disposed of."

Appellants and Respondents are hereinafter referred to as OPs and Complainants respectively, for sake of convenience, as appearing in the Complaint preferred before the Ld. State Commission.

2. In brief, complainants attributed death of Late Mahesh Jaswani on 23.06.2006 owing to negligence in treatment at Vidya Sagar Institute of Mental Health & Neurology (OP-1), wherein he was admitted and diagnosed to be suffering from "Tuberculosis L2-L3 with Left Psoas Abscess Diabetes Mellitus" by Dr.S.M. Tuli (OP-2).

As per the case of Complainants, Late Sh. Mahesh Jaswani aged about 54 years was enjoying good health and running business of chemist. On perceiving pain he was advised to undergo MRI of LS Spine with contrast by Dr. A. Sengupta. Consequently, Mahesh Jaswani undertook MRI at Batra Hospital and Medical Research Centre on 09.09.2005 and subsequently consulted OP-2 (Dr. S.M. Tuli) at OP-1 Hospital (i.e. Vidya Sagar Institute of Mental Health & Neurology). OP-2 diagnosed Mahesh Jaswani to be suffering from "Tuberculosis L2-L3 with Left Psoas Abscess, Diabetes Mellitus" and advised him to be admitted in OP-1 Hospital. Mahesh Jaswani accordingly got admitted on 11.09.2005, and as noticed in the Discharge Summary dated 16.09.2005, "debridement was done and material obtained for tissue diagnosis" on 12.09.2005. Discharge Summary further recorded that wound was healthy on dressing, and hospital stay was uneventful. Further, Mahesh Jaswani was prescribed medication and advised for review with OP-2 after 3 weeks from date of operation.

3. It is further the case of Complainants that condition of Mahesh Jaswani started deteriorating after surgery and the back pain became intolerable. The condition further worsened and eventually the patient became bed-ridden. However, Dr. S.M. Tuli (OP-2) on consultation assured that there was no reason for concern as it was normal in case of tuberculosis. On 27.09.2005 Dr. S.M. Tuli (OP-2) removed the sutures and continued with the treatment of tuberculosis. Also certain tests were advised by him on 19.10.2005 and the treatment for tuberculosis continued.

Thereafter, Mahesh Jaswani again visited OP-1 Hospital on 01.12.2005 and 10.12.2005, since his condition deteriorated. Thereafter, on 27.12.2005 on visiting Hospital, Mahesh Jaswani was examined by one Dr. Varun Kapoor, since Dr. S.M. Tuli was unavailable. Dr. Varun Kapoor called for the histopathology report dated 16.09.2005 of the extracted tissue, whereupon it was revealed that Mahesh Jawani was suffering from „cancer undifferentiated tumor-Malignant Fibrous Histiocytoma, Liposarcoma, Lymphoma."

4. It is further the case of the complainants that they got the report of Mahesh Jaswani examined from the doctors at Spinal Injury Centre, Vasant Kunj, Delhi wherein he was diagnosed as case of cancer and opined that the condition of patient had deteriorated due to surgery. Thereafter, when Mahesh Jaswani was examined at AIIMS on 03.01.2006 for treatment of cancer and providing radiotherapy/chemotherapy, the doctor observed that had the tumor not been touched, there would have been possibility of recovery by radiotherapy/chemotherapy.

5. During the course of treatment for cancer, Mahesh Jaswani unfortunately expired on 23.06.2006. The family members of the deceased thereafter preferred complaint with Delhi Medical Council and police. Also Complaint was filed before the Ld. State Commission seeking compensation to the tune of Rs.50,00,000/- including sum of Rs.2,75,000/- incurred for treatment at OP-1 Hospital.

6. The Complaint was opposed on behalf of OPs and as per stand taken on behalf of OP-1 Hospital, the attendants of Mahesh Jaswani had themselves taken the tissue obtained on debridement for getting the biopsy report from an outsourced diagnostic centre. Further since the patient was discharged on 16.09.2005 the responsibility lay with the Complainants to obtain the report from the diagnostic centre and to produce the same to the consultant doctors. According to OP-1 the Complainants failed to produce the report to the treating doctor Dr. S.M. Tuli (OP-2) for perusal for reasons best known to them and the same was only belatedly produced for the purpose of consultation. OP-1 further submitted that Mahesh Jaswani was referred to medical oncologist after the report was produced on 27.12.2005 and pointed out that undifferentiated malignancy was poor and the patient had already advanced malignancy at the time he reported at the Hospital.

7. Dr. S.M. Tuli, (OP-2) took similar stand and submitted that attendants of Mahesh Jaswani belatedly produced the biopsy report on 27.12.2005. He further clarified that the necessary operative procedure for debridement had been taken on the basis of MRI. Further the tissue had been taken as per protocol by the attendants of Mahesh Jaswani for biopsy for the purpose of obtaining report from an outsourced diagnostic centre. He stated that in absence of biopsy report being produced, the treatment for tuberculosis was continued as per case history, clinical presentation, initial investigations and provisional diagnosis. OP-2 further admitted that on 27.12.2005 Mahesh Jaswani was attended by Dr. Varun Kapoor who had enquired for the histopathology report and on production of same referred the patient to medical oncologist. Reliance was also placed upon the findings of Delhi Medical Council which were passed on complaint preferred on behalf of Complainants on 28.09.2007.

Findings of the Ld. State Commission

8. Ld. State Commission primarily relied upon the pleadings to draw an inference that the report was produced from the lab of OP-1 Hospital on asking of Dr. Varun Kapoor on 27.12.2005 which has been disputed on behalf of OPs/Appellants. Ld. State Commission further observed that the lab from which the biopsy report was obtained was an outsourced agency of the Hospital and as such the principle of vicarious liability is applicable, where the person who does the thing through another does it himself. Consequently, Vimhans Hospital as well as Dr. S.M. Tuli were held to be careless in linking the biopsy report with the medical papers of Mahesh Jaswani as it could be co-related only on 27.12.2005. Reliance was also placed by Ld. State Commission on observations of Delhi Medical Council as well as the displeasure issued by Medical Council of India against Dr. S.M. Tuli.

9. Ld. State Commission further held that in the follow-up after the surgery, Dr. S.M. Tuli (OP-2) did not bother to have a look at the biopsy report on 27.09.2005, 19.10.2005, 01.12.2005 and 10.12.2005 but only on 27.12.2005 while Dr. S.M. Tuli was on leave, Dr.Varun Kapoor demanded the biopsy report on examining the patient. The report is claimed to have been collected and shown to Dr. Varun Kapoor who found the same to be positive for „cancer‟. Ld. State Commission did not find any merit in the plea raised by OPs that the lab of the Hospital was an outsourced agency or that the relatives of the patient failed to show the report. Both the hospital as well as the treating doctor OP-2 were accordingly observed to be careless in linking the biopsy report with the medical papers of the patient till examination of patient by Dr. Varun Kapoor on 27.12.2005.

Reliance was further placed by Ld. State Commission on observations referred in the report of Delhi Medical Council, wherein it was revealed that there was a total lack of coordination in the hospital set-up.

10. Ld. State Commission further addressed the question of progression of cancer during the treatment of tuberculosis and held that though Delhi Medical Council observed that ATT (Anti-TB treatment) did not adversely contribute to the natural progression of the tumor, but in its view in absence of treatment of cancer during the relevant period, the disease contributed growing by leaps and bounds. Ld. State Commission was of the opinion that though there is no scientific reason for drawing inference of co-relation between absence of treatment of cancer during the relevant period and the death of patient but it cannot be denied that the treatment of cancer would at least have prolonged the life of the patient.

Contentions raised on behalf of Appellants/OPs

11. Ld. counsel for the Appellants/OPs reiterated the contentions raised before the Ld. State Commission and submits that the treatment for tuberculosis was diagnosed keeping in view the MRI findings which recorded that "Koch's remains the prime consideration". He emphasizes that very act of obtaining tissue for biopsy establishes that malignancy remained under active consideration. He further points out that histopathology report dated 16.09.2005 was never produced before the Consultant (OP-2) during OPD reviews by the patient and had only come to notice of Dr. Varun Kapoor on 27.12.2005 when patient was examined by him.

12. Ld. counsel for the appellants vehemently argues that in OPD settings, a treating Consultant acts upon investigation and reports produced before him by the patient and no evidence has been led on record by the complainants to prove that histopathology report was ever produced before OP-2. The diagnosis and treatment provided by OP-2 is stated to be in accordance with accepted medical practice. He also points out that anti-tubercular therapy did not adversely contribute to the active progression of the malignant tumor which was finally diagnosed on 27.12.2005 as observed by Delhi Medical Council and delay, if any, could not have altered the eventual outcome. It is pointed out that no expert evidence has been led on record to contradict the observations of DMC in this regard. He further urges that medical negligence cannot be inferred merely because the patient did not recover or because a different diagnosis had subsequently emerged. Written submissions were further filed on record. Reliance is further placed upon Des Raj Singala v. Dayanand Medical College and Hospital, (2022) CPJ 16 (NC); Kusum Sharma v. Batra Hospital and Medical Research Centre, (2010) CPJ 29 (SC); State of Rajasthan v. Rajendra Tanwar, S.B, Civil Writ Petition No.4105/2018; Harish Kumar Khurana v. Joginder Singh and Ors., Civil Appeals No.7380/8118/6933 of 2019; S.K. Jhunjhunwala v. Dhanwati Kaur and Anr., (2019) 2 SCC 282; Jacob Mathew v. State of Punjab, 2005 CTJ 1085 (SC) (CP); Martin F. D'souza v. Mohd. Ishfaq, 2009 CTJ 352 (SC); Post Graduate Medical Education Chandigarh v. Jaspal Singh and Ors., 2009 CTJ 701 (SC) and Bombay Hospital & Medical Research Centre v. Asha Jaiswal & Ors., Civil Appeal No.1658 of 2010.

13. Respondents/complainants were proceeded ex-parte vide Order dated 21.1.2024.

Findings/Analysis

14. Admittedly, Mahesh Jaswani was admitted at OP-1 hospital on 11.09.2002 and "debridement was done and tissue obtained for biopsy", on 12.09.2005. The discharge summary dated 16.09.2005 reflects that patient was diagnosed to be suffering from tuberculosis-L2-L3 with Psoas Abscess, Diabetes Mellitus and the course in the hospital was uneventful. The wound was healthy on change of dressing and further the patient was advised medications with an advise for follow-up/review with Dr. S.M. Tuli / Dr. Varun Kapoor after three weeks from the date of operation.

                          The detailed diagnosis, history and examination as recorded in the Discharge Summary dated 19.09.2005 may be noticed for reference:-

                          "Discharge Summary DOA: 11.09.2005 DOO: 12.09.2005 DOD: 16.09.2005 Consultant: Prof. S.M. Tuli / Dr. Varun Kapoor Diagnosis: Tuberculosis L2 - L3 with Left Psoas Abscess.

                          Diabetes Mellitus History: Pain mid back region On antibiotic treatment Examination:

                          Pallor/ Cyanoses/ Clubbing/ Edema/ Lymphadenopathy - Absent Systemic CVS/ CNS/ Abd./ Resp. - Normal Local Examination: Tenderness over spinous forcess of L2 - L3 No neurological deficit.

                          Investigation: Handed over to the relatives Operation: Debridement done and material obtained for tissue diagnosis.

                          Course in hospital: Wound healthy on change of dressing. Otherwise hospital stay was uneventful.

                          Advice on discharge:

                          Caviter FD 2 tab once daily before breakfast X 3 months Becosule once daily X 3 months Prorab D twice daily X 2 weeks Glyciphase 500 mgm once daily X 1 month Enzoflam twice daily X 5 days and then SOS for pain Review with Prof. S.M. Tuli/ Dr. Varun Kapoor after 3 weeks from the date of operation in Casualty on Tues./ Thru./ Sat. at 08:00 AM for suture removal. Please confirm your appointment before coming."

15. Apparently, OP-2 was required to exercise professional judgment on the basis of information available at the relevant point of time on admission on 11.09.2005 and could not have foreseen if the tissue would test positive for malignancy on biopsy. On the basis of MRI report available at the time of admission in September, 2005, the approach for debridement and biopsy appears to be reasonable, prudent and consistent within accepted medical norms. The diagnosis of tuberculosis does not appear to be based on assumptions or arbitrary opinion but followed from the radiological examination i.e. the MRI Report got conducted by Mahesh Jaswani at Dr. Batra‟s Hospital. A specific finding stood recorded in the MRI to the effect that "Koch's remains the prime consideration", which refers to tuberculosis and particularly tubercular involvement of the spine, when seen in the context of the patient. The very act of sending the tissue for biopsy establishes that malignancy, if any, also remained under consideration and had not been ruled out by OP-2.

16. Based upon the medical literature and articles, it is well established that tuberculosis and malignancy may co-exist and may also mimic each other clinically as well as radiologically. In such an eventuality, it is recorded that such co-existence frequently creates diagnostic difficulty and may delay definitive diagnosis despite appropriate medical care. Reference in this regard may be made to Review Article on Cancer and Tuberculosis published in Journal of Indian Academy of Clinical Medicine {JIACM 2012; 13(2): 142-4}.

17. Evidently, no expert opinion or cogent evidence has been led on record on behalf of the complainants to prove if the procedure for debridement and obtaining of tissue culture for biopsy had been incorrectly followed by OP-2.

It may also be noticed that as per report of Delhi Medical Council dated 28.09.2007 referred to by the Ld. State Commission, the diagnosis of tuberculosis L2-L3 with Left Psoas Abscess Diabetes Mellitus made by OP-2/Dr. S.M. Tuli at the time of admission based upon the clinical condition of the patient and medical reports submitted by him and subsequent biopsy conducted for tissue diagnosis is in accordance with professional accepted practices in such cases. In view of above, it cannot be inferred that OP-2 ignored the possibility of malignancy or blindly proceeded on the assumptions of tuberculosis.

18. It is well settled that a Consultant is expected to exercise only a reasonable degree of skill and care and the law does not demand infallibility or require the doctor to guarantee a successful outcome. Hon‟ble Apex Court in Jacob Mathew v. State of Punjab and Another, (2005) 6 SCC 1 observed that a professional may be held liable where the conduct falls below standard of a reasonably competent practitioner. A simple lack of care, an error of judgment is not a proof of negligence on the part of a medical professional. Conclusions drawn by the Hon‟ble Apex Court in Jacob Mathew v. State of Punjab and Another (supra) in para 48 of the judgment may be beneficially reproduced for reference:-

                          "48. We sum up our conclusions as under:

                          (IX) Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. The definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P. Singh), referred to hereinabove, holds good. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three:

                          "duty", "breach" and "resulting damage".

                          (2) Negligence in the context of the medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. When it comes to the failure of taking precautions, what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. So also, the standard of care, while assessing the practice as adopted, is judged in the light of knowledge available at the time of the incident, and not at the date of trial. Similarly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that particular time (that is, the time of the incident) at which it is suggested it should have been used.

                          (3) A professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence. (4) The test for determining medical negligence as laid down in Bolam case [(1957) 1 WLR 582 : (1957) 2 All ER 118 (QBD)] , WLR at p. 586 [ [Ed.: Also at All ER p. 121 D-F and set out in para 19, p. 19 herein.]] holds good in its applicability in India. (5) The jurisprudential concept of negligence differs in civil and criminal law. What may be negligence in civil law may not necessarily be negligence in criminal law. For negligence to amount to an offence, the element of mens rea must be shown to exist. For an act to amount to criminal negligence, the degree of negligence should be much higher i.e. gross or of a very high degree. Negligence which is neither gross nor of a higher degree may provide a ground for action in civil law but cannot form the basis for prosecution. (6) The word "gross" has not been used in Section 304-A IPC, yet it is settled that in criminal law negligence or recklessness, to be so held, must be of such a high degree as to be "gross". The expression "rash or negligent act" as occurring in Section 304-A IPC has to be read as qualified by the word "grossly".

                          (7) To prosecute a medical professional for negligence under criminal law it must be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do. The hazard taken by the accused doctor should be of such a nature that the injury which resulted was most likely imminent. (8) Res ipsa loquitur is only a rule of evidence and operates in the domain of civil law, specially in cases of torts and helps in determining the onus of proof in actions relating to negligence. It cannot be pressed in service for determining per se the liability for negligence within the domain of criminal law. Res ipsa loquitur has, if at all, a limited application in trial on a charge of criminal negligence."

19. Reference may be made to Kusum Sharma and Others v. Batra Hospital and Medical Research Centre and Others, (2010) 3 SCC 480 as referred in para 33 in Bombay Hospital & Research Centre v. Asha Jaiswal & Ors., Civil Appeal No. 1658 of 2010 decided on November 10, 2021 by the Hon‟ble Apex Court wherein it was noticed that every surgical operation and medical advancement is attended by risks. Further, it is enough for a defendant to show that he acted in accordance with approved and accepted practice at the said point of time. Observations in para 33 may be beneficially reproduced for reference:-

                          "33. In another judgment in Kusum Sharma v. Batra Hospital [Kusum Sharma v. Batra Hospital, (2010) 3 SCC 480 : (2010) 1 SCC (Civ) 747 : (2010) 2 SCC (Cri) 1127] , 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.

                          ***

                          72. The ratio of Bolam case [Bolam v. Friern Hospital Management Committee, (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 the equipment was not generally available at that point of time on which it is suggested as should have been used.

                          ***

                          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."

20. Seen in the light of settled principles, the debridement and obtaining of tissue for biopsy conducted by OP-2 cannot be faulted with in any manner.

21. The issue for further consideration is, whether the OPs can be held liable for negligence for non-consideration of biopsy report dated 16.09.2005 during subsequent consultations by the deceased patient. Admittedly, the histopathology report of the tissue came into consideration on 27.12.2005 when the patient was examined by by Dr. Varun Kapoor, since Dr. S.M. Tuli (OP-2) was unavailable. The inference of medical negligence has been proceeded with by the Ld. State Commission on an assumption that the duty lay on the treating Consultant to have necessarily considered the biopsy report before further treating the patient in review OPDs.

22. In the aforesaid context, we may notice that initially the complainants took a stand that wrongful treatment was administered by OP-2 despite a categorical finding of malignancy in the biopsy report. However, after a stand was taken by the OPs in the written version that the biopsy report had been collected from an outsourced agency by the attendants of the patient and had intentionally not revealed the date of collecting the report, a denial was made by the complainants in the rejoinder regarding collection of report by the attendants of the patient. Complainants further stated in para 3 to 5 of the rejoinder that OP-2 in spite of calling for biopsy report, negligently and lightly took the deteriorating condition of the deceased and continued the treatment for TB. A stand was further taken on behalf of the complainants that only on 27.12.2005 on asking of Dr. Varun Kapoor, the report was produced from the laboratory of OP-1 Hospital which was lying since 16.09.2005. The outsourced diagnostic centre was further stated to be a part of the OP-1 hospital.

23. Admittedly, evidence has not been led on record by either of the parties to prove the date on which the biopsy report was finally collected from the diagnostic centre. It further remains un-established on record, if the biopsy report was collected by the complainants on behalf of the patient at any point of time or the same was produced at the asking of Dr. Varun Kapoor on 27.12.2005 from the Hospital record. In the facts and circumstances, it cannot be conclusively inferred if the report was lying in the hospital records and had not been earlier collected on behalf of the patient.

24. Further, it cannot be ignored that during the review visits in the OPD, OP-2 never had any access to the biopsy report except for the documents produced by the attendants of Mahesh Jaswani for consultation and review. There is nothing on record to establish, if the complainants had brought to the notice of OP-2 that the biopsy report had not been received or collected by the patient. Only on 27.12.2005, it was revealed that the patient had not produced the biopsy report for consultation, on examination by Dr. Varun Kapoor, whereupon the patient was referred to an Oncologist. In the facts and circumstances, it may be preposterous to assume negligence on the part of the treating Physician (OP-2), as it was never brought to his notice that the biopsy report had not been obtained by the patient from the outsourced lab. Generally, after discharge from the hospital, the patients are advised to collect the pending investigation reports and in case the investigation report is outsourced through a diagnostic lab, the same is collected by the patient. Admittedly, during OPD review, OP-2 prescribed the medicines based upon the available documents and there does not appear to be any protocol for production of hospital records during OPD visits. The lapse in production of the biopsy report for consultation, as such, squarely also lies with the attendants of the patient, for which the consultant doctor cannot be exclusively held liable.

25. Pertinently, it may be noticed that Delhi Medical Council, which is an independent Statutory Body entrusted with examining allegations of professional misconduct and medical negligence independently observed that the tumor suffered by Mahesh Jaswani was highly malignant in nature and the outcome in the patient might have been almost the same and the initiation of anti-tubercular therapy did not contribute adversely to the natural progression of the tumor. In the aforesaid background, the assumption drawn by the Ld. State Commission that had the patient been referred to an Oncologist earlier, the eventual outcome may have been different is not supported by any expert opinion. There is nothing on record to presume that unfortunate demise of Mahesh Jaswani was attributable to the delay in providing treatment for cancer. A case of medical negligence cannot be inferred because Mahesh Jaswani was subsequently diagnosed to be suffering from cancerous tumor on production of biopsy report on 27.12.2005 during consultation. Orthopaedic Knowledge Update by Kenneth J Koval, MD (Editor) issued by American Academy of Orthopaedic Surgeons in its Article on Tumors of the Spine observes that "Spinal osteosarcoma arises from the vertebral body in 95% of cases. Median survival of patients with osteosarcoma of the spine ranges from 6 to 18 months following diagnosis regardless of the surgical approach. When local control can be obtained with surgical margin, then patient survival is comparable to that of an extremity lesion. Unfortunately, complete excision is possible in less than half of all spinal osteosarcomas."

26. In the facts and circumstances, we are of the considered opinion that in the absence of biopsy report being placed during subsequent review consultations, the continued treatment for tuberculosis in accordance with clinical history and symptoms cannot be faulted.

For aforesaid reasons, the Ld. State Commission fell in error in attributing negligence on part of OP-2, since the treatment had been administered in accordance with accepted medical practice and on the basis of documents/investigations and reports produced by the patient before the Consultant during review OPDs.

27. The duty cast on the hospital to provide the requisite investigation reports further needs to be assessed in respect of patients who are admitted as indoor patients and those who visit subsequently for review in OPDs. If during the admission of a patient in the hospital, there is a delay or non-provision of the relevant test reports to the patient or is overlooked by the consulting doctor, at the relevant time, despite the same being on record, there may be an element of negligence attributable to the Consultant as well as the hospital. However, wherein the patient is discharged from the hospital and comes for a follow-up consultation with the Consultant, there appears to be a negligible connectivity of the hospital with the patient to ascertain if he had collected any pending reports. Generally, the test reports and prescriptions which have been provided to the patient on discharge are expected to be produced for purpose of any subsequent consultations. It is not the case of the complainants that the hospital had refused to handover any of the investigation reports in its possession at the time of discharge of the patient on 16.09.2005. The duty to collect pending investigation report was also squarely on the patient, as earlier observed.

28. However, apparently, there were gaps at the relevant time whereby the collection of the biopsy report by the patient remained unnoticed by the hospital till 27.12.2005. Suitable protocols in this regard by the hospital could have definitely avoided a situation whereby the patient was deprived of the correct diagnosis from 16.09.2005 to 27.12.2005. The delay in correct prognosis could have been avoided if some suitable steps had been taken by the hospital for better coordination between the patient, diagnostic lab and the hospital, which would have ensured that the patient had been apprised of the biopsy report which was crucial for his diagnosis and further treatment. The absence of any such protocol has also been observed to be disconcerting by Delhi Medical Council in its report placed on record.

In the facts and circumstances, though we hold that the findings recorded by the Ld. State Commission holding the OP-1 hospital guilty of medical negligence are not sustainable but it shall be fair and equitable in case an amount of Rs.5 lacs which was directed to be deposited on behalf of appellant no.1 with Ld. State Commission vide Order dated 25.04.2018 is released to the complainants with interest as an ex-gratia, which would cover the treatment costs of the patient. Reliance in this regard may be placed upon judgment passed by the Hon‟ble Apex Court in Bombay Hospital & Medical Research Centre v. Asha Jaiswal & Ors. (supra) wherein though the hospital and doctors were absolved of medical negligence but an amount of Rs.5 lacs disbursed to the complainants was ordered to be treated as "ex-gratia" payment to the complainants which was not to be recovered back either by the hospital or the doctor.

Amount of Rs.2 lacs awarded against OP-2 by the Ld. State Commission, if deposited, may be released to OP-2 after period of 30 days from the date of this Order.

Appeal is accordingly disposed of. Pending applications, if any, also stand disposed of. No order as to costs.

A copy of this Order be provided to the concerned parties, by the Registry.