Sudhir Kumar Jain, Member

Briefly stated the relevant facts are that Shameena (hereinafter referred to as 'the deceased') was the wife of the complainant and was already having three children. The deceased was admitted at Goyal Medical Centre/the opposite party no.1 on 26.09.2015 for delivery of the. The deceased was given injection for causing labour pain which was started at about 8.00 pm. The deceased delivered a baby girl at around 9.10 pm. The complainant paid medical expenditure amounting to Rs. 25,000/- besides other incidental expenses. The complainant at about 9:30 P.M. was instructed to arrange blood from the opposite party no. 3 and for that purpose was also given blood sample of the deceased. The opposite party no. 3 again asked the complainant to bring fresh blood sample as the previous earlier sample was stated to have been mixed with another blood sample and the opposite party deliberately wrote wrong name and age of the deceased on requisition form which proved fatal for the deceased. The complainant came back to the opposite party no. 1 at about 11.30 pm for collection of blood sample and came to know that the opposite party no 1 already referred the deceased to another hospital due to reason that that the opposite party could not control case of the complainant. The deceased was referred and transferred to the opposite party no. 2. The deceased could not survive despite being taken to emergency ward/ICU. The deceased was stated to be died due to damage to organs, anemia and negligence and wrong treatment on the part of the opposite party no 1. The opposite parties did not take reasonable care of the deceased and the deceased had died due to gross negligence on the part of the opposite parties. The complainant also sent a legal notice dated 06.01.2016/16.01.2016 to the opposite parties which was only replied by the opposite parties no.2 and 3. The complainant also filed a complaint dated 19.01.2016 to the Medical Council of India with intimation to Delhi Medical Council on 25.04.2016. The complainant being aggrieved filed present consumer complaint bearing C.C. no 896 of the 2017 titled as Akhtar Khan V Goyal's Medical Centre and others under Section 21 and 22 of the Consumer Protection Act, 1986 (hereinafter referred to as 'the Act') before this Commission. The complainant has prayed as under:-

                   It is, therefore, prayed that the opposite parties be directed to pay compensation amounting to Rs. 1 Crore as compensation for the welfare and future of the New Born Baby Girl immediately and the cost of Rs. 2,50,000/- (Rupees Two Lakhs Fifty Thousand Only) approx, towards Medical expenses incurred towards Complainant's wife Treatment alongwith interest. The break-up is given below:

                   Compensation from Goyal's Medical Centre = Rs. 65,00,000/-(Rupees Sixty Five Lacs Only) and cost of Rs. 2,50,000/- (rupees Two Lakhs Fifty thousand Only) approx.

                   Compensation from Fortis fit. Ltd. Rajan Dhall Hospital = Rs. 20,00,000/- (Rupees Twenty Lacs Only)

                   Compensation from Rotary Blood Bank = Rs. 15,00,000/-(Rupees Fifteen Lacs Only)

                   Strict Action be taken against the opposite Parties

                   The Cost of Litigation also be awarded in favour of the Complainant, in the interest of justice.

                   Any other relief to which this Hon'ble Forum deem fit in the facts and circumstances of the present case may also be awarded.

                   1.1 The complainant was permitted to file additional affidavits vide order dated 19.04.2017 and 21.09.2017 passed by this Commission. The complainant in additional affidavit filed on 03.05.2017 stated that the opposite party no 1 deliberately and with mala fide intention wrote wrong name and age of the deceased on requisite slip which consequently proved fatal for the deceased as the complainant could not collect blood from the opposite party no 3. The negligent and lack of duty to take care on the part of the opposite party no 1 was apparent as other blood banks were situated near to the opposite party no 1. The staff of the opposite party no 2 was also lacking care and was negligent in the handling and treatment of the deceased. The opposite party no 2 did not take immediate action to save life of the deceased. The complainant also alleged negligence on the part of the opposite no 3 in arranging blood for the deceased.

                   1.2 The complainant in additional affidavit filed on 21.09.2017 deposed that Dr. A. K. Goyal, Dr. Meenu Goyal and Dr. Shashi Goyal of the opposite party no 1 were responsible for medical negligence as they did not provide medical record pertaining to the deceased to the opposite party no 2. The opposite party no 2 also did not take immediate action to retrieve the blood from the blood bank. The opposite party no 1 did not take requisite steps to control anemic condition prior to administration of injection for causing labour pain. The deceased was not suffering from any deceased before being admitted to the opposite party no 1. The condition of the deceased got deteriorated due to wrong treatment given by the opposite party no 1 and the deceased was bleeding profusely when she was transferred to the opposite party no.2. The opposite parties were deficient in service and deceased had died due to negligence of the opposite parties.

2. The opposite parties contested the complaint and filed the written statement/reply affidavits. The opposite party nol in reply affidavit stated that the complainant earlies filed consumer complaint bearing no 1211/2016 which was ordered to be dismissed as withdrawn. The deceased was brought to the opposite party no 1 at about 5.30 pm on 26.09.2015 by the brother of the complainant as an un-booked case with alleged history of full term gestation, multi gravida, weak, emaciated, anemic and handled by dais (untrained health worker) in advance stage of labour. The relatives of the deceased were asked to take the deceased to specialized center for handling critically sick patient. The relatives of the deceased were asked to arrange blood to resuscitate the deceased due to her severe anemia. The relatives refused to arrange the blood and insisted for delivery despite risk involved. The deceased was given intensive resuscitative fluids, intravenous, antibiotics and oxygen inhalation. The opposite party no 1 continued to resuscitate the deceased due to strong uterine contractions. The deceased developed strong uterine contractions and delivered vaginally spontaneously at about 9.10 pm. The deceased post- delivery shifted to room and was comfortable and vitals were stable. The deceased developed severe breathlessness and restlessness at about 9.30 pm. The relatives of the deceased were again asked to arrange blood from the opposite party no 3 but there was confusion regarding spelling of the deceased in the form which was subsequently rectified and corrected by the opposite party nol telephonically and thereafter blood was issued by the opposite party no 3. However relative of the deceased came back without blood. The opposite party no 1 due to increased breathlessness and further deterioration of the condition of the deceased started intravenous haemaccel and shifted the deceased to the opposite party no 2 with oxygen cylinder and nursing attendant. The opposite party no 1 also furnished necessary details to the opposite party no 2 and kept constant track about the progress of the deceased to ensure best care to her. However the deceased died due to multi organs failure and DIC (disseminated intravascular coagulation). The deceased had died due to carelessness of the complainant. There was no medical negligence on the part of the opposite party no 1. The opposite party no 1 denied other allegations of the complainant.

                   2.1 The opposite party no 2 in written statement denied allegations as mentioned in the complaint being vague, baseless, frivolous and devoid of merits. The opposite party no 2 is a multi-specialty hospital and has been impleaded on basis of bald allegations. The opposite party no 2 is well equipped with requisite facilities to handle critical patient like the deceased. The deceased aged about 28 years P3L3 (the deceased has become mother thrice and three surviving children) was brought by the complainant at the opposite party no 2 in emergency at 1.25 am on 27.09.2015. The complainant informed the doctor on duty that the deceased had vaginal delivery at the opposite party no 1 on 26.09.2015 at about 9.00 pm. The antenatal or referral notes pertaining to the medical history of the deceased were not available or brought by the complainant. The opposite party no 1 referred the deceased to the opposite party no 2 because of severity of condition of the deceased due to severe anemia. The doctor from the opposite party no 1 informed the Gynecologist Senior Resident telephonically that intra-partum period was uneventful and there were no intra-partum complications or PPH (Postpartum hemorrhage). The deceased was given immediate assistance and attended by a senior doctor. The deceased was unresponsive to verbal commands and disoriented. The deceased was physically examined and abdomen was soft, scaphoid, uterus was well contracted and there was no active vaginal bleeding. The doctors at the opposite party no 2 urgently called four units of blood for transfusion. Due to critically condition of the deceased ICU team was called and active resuscitation was started. The deceased was shifted to ICU, catherized and IV fluids were started. The deceased was intubated and IV fluids and blood transfusion continued. CVP line and arterial line were placed. The complainant was explained with poor prognosis. The complainant was given necessary medicines. The complainant was bleeding CVP line site and peripheral arterial lines and clinically was in Disseminated Intravascular Coagulation (DIC) which is a known complication. The opposite party no 2 continued PRBC, FFP and RDPC transfusion but despite this condition of the deceased continued to deteriorate. The deceased at about 5.30 am developed abdominal distention and ultrasound showed hemoperitoneum due to DIC. The case of the deceased due to decrease Hb with increasing abdominal girth was evaluated and discussed with surgeon, gynecologist and anesthetist and decision was taken to continue medical management in view of DIC. The deceased had severe bradycardia on 27.09.2015 at 5.30 am and immediately CPR was given. The deceased despite best efforts of the doctors to save and resuscitate her could not be survived and declared dead at 9.18 am on 27.09.2015. The deceased was attended by a team comprising 8 doctors who followed necessary and standard procedure of medical treatment to stabilize condition of the deceased. The deceased died due to severe anemia with shock with DIC and multi organs failure. There was no negligence on the part of the opposite party no 2. The opposite party no 2 also denied other allegations of the complainant. The opposite party no 2 also filed reply to the additional affidavit filed by the complainant.

                   2.2 The opposite party no. 3 filed reply affidavit. The opposite party no 3 stated that the opposite party no 3 is a licensed blood bank. The complainant came to the opposite party no3 for blood and was carrying blood sample of the deceased with a label containing information regarding name, age and blood group and blood requisition form. The duly qualified representative of opposite party no 3 matched information on requisition form and details mentioned on the label of blood sample which were not matching. The complainant was accordingly informed and the complainant was asked to bring new blood sample to avoid any chance of fatal consequences of transfusing wrong blood to the complainant. The opposite party acted in accordance with the statutory guidelines and standard procedure applicable to blood banks. There was no negligence on the part of the opposite party no 3. The opposite parties prayed that the complaint be dismissed.

3. The Complainant filed replications to the written statement/reply affidavits filed by the opposite parties to rebut the averments made by opposite parties in respective written statement/reply affidavits. The complainant in the replications reasserted and reiterated contents of the complaint.

4. The complainant tendered affidavit in evidence and relied on documents Ex. CW1/1 to Ex. CW1/6. The opposite party no. 1 did not tender affidavit in evidence despite sufficient opportunity and the right of the opposite party no.1 to file the affidavit in evidence was closed vide order dated 18.07.2024. The opposite party no 2 tendered affidavit of Yashpal Singh Rawat, Authorized Signatory in evidence and relied on documents which are Ex. OP2W1/1 to Ex. OP2W1/6. The opposite party no 3 tendered affidavit of Dr.Anju Verma, Chief Medical Officer in evidence and relied on document which is Ex. OP3/1.

5. The complainant made a complaint to Medical Council of India alleging medical negligence on the part of Dr. A. K. Goyal, Dr. Meenu Goyal, Dr. Shashi Goyal and the opposite party no 1; the opposite party no.2 and opposite party no. 3 pertaining to the treatment administered to the deceased resulting her death which was forwarded to the Delhi Medical Council. Delhi Medical Council constituted Disciplinary Committee examined the complaint and the written statements filed on behalf of the opposite parties along with medical record. Disciplinary Committed heard the complainant, Dr. Shashi Goal, Dr. Meenu Goyal, Dr. A.K. Goyal from the opposite party no.1, Dr. Ramandeep Kaur, Dr. Saumya Ajuja from the opposite party no. 2 and Dr. Anju Verma from the opposite party no.3 on the allegations of the complaint in detail. Delhi Medical Council vide order dated 18.05.2020 opined that no medical negligence can be attributed to the opposite parties and the doctors of the opposite party no.1. The relevant portion of the order dated 18.05.2020 is reproduced as under:-

                   1. It is noted that the patient Smt Shameena unbooked G3P2L2 multipara with full term gestation in labour with severe anemia was admitted in Goyal's Medical Centre at 5.30 am on 26.9.2015. The patient's attendants were asked to arrange for 2 units of packed cell and apparently advised to shift to higher centre. It seems the patient was not immediately shifted tertiary Care Centre and her labour management was initiated at Goyal's Medical Centre. The patient delivered a girl child at 9.10 pm birth weight 2.5kg, as per the referral note of Goyal's Medical Centre (there are no delivery notes). She was administered I/V hemacceal and also oxygen inhalation. It is not clear as to whether 2 units of packed cells were given to the patient. The patient was finally referred to Fortis Hospital Vasant Kunj at 10.10pm after telephonically informing the doctor on duty at Fortis with a nursing attendant and oxygen cylinder with IV drip on flow. The patient at time of referral was in shock, HB-4gm, BG-bene, BP-80/60mmhg. The patient was brought to the emergency of Fortis Hospital (at what time is not clear), however the 1.25am notes (26.9.2015) mentions the patient to be disoriented, pallor +++, pulse 150/min BP 80 systolic, P/A-Uterus well contracted, no active Bleeding, no vaginal or cotear present. Patient was admitted in ICU, fluids started patient catheterized, intubated, Central line put, arterial line was put and inotrops started, Inj. Sadobicarbonate was given. ABG Showed HB 29%. Biochemistry reports-fibrinogen 79.9, INR 3.0, APTT 70.4. 9units of PRBC, 4 units of RD, 8units of FFP and lOunits of cryoprecipitate given. Hematoma was observed at CVP line site, bleeding from peripheral arterial line, noticed abdominal distension, urgent USG abdomen revealed haemoperitoneum due to DIC. Patient developed bradycardia and hypotension. Despite rigorous CPR, patient could not be revived and declared dead at 9.18 am on 27.9.2015.

                   2. It is observed that Smt Shameena was an un-booked patient with F.T.D. (Full Term Delivery) in advance stage of labour who was acutely anaemic and inspite of being advised to go to a higher centre, refused to heed to the advice nor able to arrange for packed blood cells in a timely manner, had a Had a guarded prognosis, inspite of being treated adequately, under the circumstances, in a Nursing Home set-up which was not equipped to handle such a critical patient Similarly, the medical condition in which the patient reported to Fortis Hospital, being in shock, had a poor prognosis, despite being treated as per accepted professional practices in such case.

                   3. It is observed that the delay in arranging for the blood due to some communication gap between Goyal Medical Centre, Rotary Blood Bank and the patient's attendants is something which is unfortunate and could have been avoided.

In light of the observations made herein-above, it is the decision of the Disciplinary Committee that no medical negligence can be attributed on the part of Dr. A.K. Goyal, Dr. Meenu Goyal, Dr. Shashi Goyal, Goyal's Medical Centre & Forts Fit. Rajan Dhall Hospital, New Delhi and Rotary Blood Bank, New Delhi, in the treatment administered to the complainant's wife Smt. Shameena.

6. We have heard Mr. T.P.S. Kang, Advocate for the complainant, Mr. Sunil Kumar Jha, and Mr. Sarjan Kumar Sinha, Advocates for the opposite party no.1, Mr. Yuvraj Singh, Advocate (VC) for the opposite party no.2 and Mr. Amrendra Kumar Choubey, Advocate (VC) for the opposite party no.3. We have also perused the record and medical documents submitted by the contesting parties.

7. The counsel for the complainant argued that the opposite parties were completely negligent in providing medical services to the deceased despite charging price for the services and negligence in the treatment of deceased caused her death. It was empathetically argued that the opposite party no 1 deliberately mentioned wrong name and age of the deceased on the slip which proved to be fatal for the complainant. The deceased died due to damage to her organs, severe anemia which was resulted due to negligence and wrong treatment given by the opposite parties. The opposite parties breached the duties as provider of medical services. The opposite parties being doctors and hospitals were duty bound to act responsibly and professionally. The opposite parties were lacking care in the treatment of the deceased which can be expected from a reasonable person in the circumstances of the case. The physical condition of the deceased gets deteriorated due to negligence of the opposite parties. The counsel for the complainant justified the compensation as claimed.

                   7.1 The respective counsels for the opposite parties after referring the factual backgrounds of the case argued that there is no medical negligence on their part as the complainant has completely failed to establish medical negligence on the part of the opposite parties by adducing cogent evidence. The deceased was treated as per the medical standards and protocol. The counsels argued that the complaint be dismissed.

8. We shall refer the judicial pronouncements given by the Superior Courts. The basic principle relating to negligence by professionals was comprehensively addressed in Bolam V Friern Hospital Management Committee, (1957) 1 WLR 582 wherein it was held as under:-

                   (W)here you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and profession to have that special skill. A man need not possess the highest expert skill. It is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art.

                   8.1 The Supreme Court in Dr. C. P. Sreekumar V S. Ramanujam, II (2009) CPJ 48 (SC) held that onus to prove medical negligence lies on the claimant and this onus can be discharged by leading cogent evidence. This Commission in Nalini V Manipur Hospital & others, IV (2011) CPJ 280 (NC) observed that appellant's case of alleged medical negligence cannot be accepted only on basis of affidavit without support of any expert opinion. The Supreme Court in Achutrao Haribhau Khodwa V State of Maharashtra and others, (1996) 2 SCC 634 held as under:-

                   The skill of medical practitioners differs from doctor to doctor. The very nature of the profession is such that there may be more than one course of treatment which may be advisable for treating a patient Courts would indeed be slow in attributing negligence on the part of a doctor if he has performed his duties to the best of his ability and with due care and caution. Medical opinion may differ with regard to the course of action to be taken by a doctor treating a patient, but as long as a doctor acts in a manner which is acceptable to the medical profession, and the Court finds that he has attended on the patient with due care skill and diligence and if the patient still does not survive or suffers a permanent ailment, it would be difficult to hold the doctor to be guilty of negligence.

                   8.2 The Supreme Court in Jacob Mathew V State of Punjab extensively discussed negligence by professionals including doctors. The Supreme Court observed as under-

                   In the law of negligence, professionals such as lawyers, doctors, architects and others are included in the category of persons professing some special skill or skilled persons generally. Any task which is required to be performed with a special skill would generally be admitted or undertaken to be performed only if the person possesses the requisite skill for performing that task. Any reasonable man entering into a profession which requires a particular level of learning to be called a professional of that branch, impliedly assures the person dealing with him that the skill which he professes to possess shall be exercised and exercised with reasonable degree of care and caution. He does not assure his client of the result. A lawyer does not tell his client that the client shall win the case in all circumstances. A physician would not assure the patient of full recovery in every case. A surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial, much less to the extent of 100% for the person operated on. The only assurance which such a professional can give or can be understood to have given by implication is that he is possessed of the requisite skill in that branch of profession which he is practising and while undertaking the performance of the task entrusted to him he would be exercising his skill with reasonable competence. This is all what the person approaching the professional can expect. Judged by this standard, a professional may be held liable for negligence on one of 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 necessary for every professional to possess the highest level of expertise in that branch which he practices.

                   8.2.1 The Supreme Court also referred Bolam case and stated that it is cited and dealt with in several judicial pronouncements. It was observed that the classical statement of law in Bolam's case has been widely accepted as decisive of the standard of care required both of professional men generally and medical practitioners in particular. It has been applied to as touchstone to test the pleas of medical negligence. 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 a defendant charged with negligence acted in accord with the general and approved practice is enough to clear him of the charge. The Supreme Court further observed that a mere deviation from normal professional practice is not necessarily evidence of negligence. An error of judgment on the part of a professional is not negligence per se. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. It was also observed that no sensible professional would intentionally commit an act or omission which would result in loss or injury to the patient as the professional reputation of the person is at stake. A single failure may cost him dear in his career.

                   8.2.2 The Supreme Court also discussed rule of res ipsa loquitur and stated that it is not of universal application and has to be applied with extreme care and caution to the cases of professional negligence and in particular that of the doctors otherwise it would be counter-productive. The doctor cannot be held liable by applying doctrine of res ipsa loquitur because a patient has not favourably responded to a treatment given by a physician or a surgery has failed. The Supreme Court has summed up the conclusions as under:-

                   (1) 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 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 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's case [1957] 1 W.L.R. 582, 586 holds good in its applicability in India.

                   8.3 The Supreme Court in Neeraj Sud & another V Jaswinder Singh (minor) & another, Civil Appeal No 272 of 2012 decided on 25.01.2024 after referring Bolam case and Jacob Mathews V State of Punjab in context to medical negligence held as under:-

                   11. Deterioration of the condition of the patient post-surgery is not necessarily indicative or suggestive of the fact that the surgery performed or the treatment given to the patient was not proper or inappropriate or that there was some negligence in administering the same. In case of surgery or such treatment it is not necessary that in every case the condition of the patient would improve and the surgery is successful to the satisfaction of the patient. It is very much possible that in some rare cases complications of such nature arise but that by itself does not establish any actionable negligence on part of the medical expert.

                   14. It is well recognized that actionable negligence in context of medical profession involves three constituents (i) duty to exercise due care; (ii) breach of duty and (iii) consequential damage. However, a simple lack of care, an error of judgment or an accident is not sufficient proof of negligence on part of the medical professional so long as the doctor follows the acceptable practice of the medical profession in discharge of his duties. He cannot be held liable for negligence merely because a better alternative treatment or course of treatment was available or that more skilled doctors were there who could have administered better treatment.

                   15. A medical professional may be held liable for negligence only when he is not possessed with the requisite qualification or skill or when he fails to exercise reasonable skill which he possesses in giving the treatment. None of the above two essential conditions for establishing negligence stand satisfied in the case at hand as no evidence was brought on record to prove that Dr. Neeraj Sud had not exercised due diligence, care or skill which he possessed in operating the patient and giving treatment to him.

                   16. When reasonable care, expected of the medical professional, is extended or rendered to the patient unless contrary is proved, it would not be a case for actionable negligence. In a celebrated and very often cited decision in Bolam v. Friern Hospital Management Committee (Queen's Bench Division), it was observed that a doctor is not negligent if he is acting in accordance with the acceptable norms of practice unless there is evidence of a medical body of skilled persons in the field opining that the accepted principles/procedure were not followed. The test so laid down popularly came to be known as Bolam's test and stands approved by the Supreme Court in Jacob Mathews v. State of Punjab and Another.

                   17. In Jacob Mathews (supra) this Court held that a professional may be held liable for negligence if he is not possessed of the requisite skill which he supposes to have or has failed to exercise the same with reasonable competence.

                   18. In other words, simply for the reason that the patient has not responded favourably to the surgery or the treatment administered by a doctor or that the surgery has failed, the doctor cannot be held liable for medical negligence straightway by applying the doctrine of Res Ipsa Loquitor unless it is established by evidence that the doctor failed to exercise the due skill possessed by him in discharging of his duties.

                   8.4 The Supreme Court in Kusum Sharma V Batra Hospital, (2010) CPJ 29 (SC) observed that medical science has conferred great benefits on mankind but these benefits are attended by considerable risks. Every surgical operation is attended by risks. It was further observed that the professional should be held liable for his act or omission, if negligent, is to make life safer and to eliminate the possibility of recurrence of negligence in future but at the same time courts have to be extremely careful to ensure that unnecessarily professionals are not harassed and they will not be able to carry out their professional duties without fear. The Supreme Court in Martin F D'Souza V Mohd Ishfaq, (2009) 3 SCC 1 referred by the counsel for the petitioner observed that simply because a patient has not favourably responded to a treatment given by a doctor or a surgery has failed, the doctor cannot be held straightway liable for medical negligence by applying the doctrine of res ipsa loquitur. No sensible professional would intentionally commit an act or omission which would result in harm or injury to the patient since the professional reputation of the professional would be at stake. A single failure may cost him dear in his lapse. It was also observed in this case that a medical practitioner is not liable to be held negligent simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another. He would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.

                   8.5 The Supreme Court in Deep Nursing Home and another V Manmeet Singh Mattewal and others, 2025 SCC OnLine SC 1934 which is also referred by the counsel for the complainant, after referring Jacob Mathew V State of Punjab and Martin F. D'Souza V Mohd. Ishfaq observed as under-

                   23. As pointed out in Jacob Mathew vs. State of Punjab and another, simply because a patient did not favourably respond to the treatment given by a physician or if a surgery failed, the doctor cannot be held liable per se by applying the doctrine of res ipsa loquitur. This edict was reiterated in Martin F. D'Souza vs. Mohd. Ishfaq wherein, it was pointed out that no sensible professional would intentionally commit an act or omission which would result in harm or injury to a patient as the reputation of that professional would be at stake and a single failure may cost him or her dear in that lapse. It was also pointed out that sometimes, despite best efforts, the treatment by a doctor may fail but that does not mean that the doctor or surgeon must be held guilty of medical negligence, unless there is some strong evidence to suggest that he or she is. It was also pointed out that Courts and Consumer Fora are not experts in medical science and must not substitute their own views over that of specialists. While acknowledging that the medical profession had been commercialised to some extent and there were doctors who depart from their Hippocratic Oath for their selfish ends of making money, this Court held that the entire medical fraternity cannot be blamed or branded as lacking in integrity or competence just because of some bad apples.

                   24. On the same lines, in Devarakonda Surya Sesha Mani and others vs. Care Hospital, Institute of Medical Sciences and others , 2022 SCC OnLine SC 1608 it was held that unless a complainant is able to establish a specific course of conduct, suggesting a lack of due medical attention and care, it would not be possible for the Court to second-guess the medical judgment of the doctor on the line of treatment which was administered and, in the absence of such material disclosing medical negligence, the Court cannot form a view at variance, as every death in the institutionalised environment of a hospital does not necessarily amount to medical negligence on a hypothetical assumption of lack of due medical care.

                   8.6 The Supreme Court in Jyoti Devi V Suket Hospital, (2024) 8 SCC 655 observed as under:-

                   The Law on Medical Negligence

                   13. Three factors required to prove medical negligence, as recently observed by this Court in M.A Biviji v. Sunita, (2024) 2 SCC 242 following the landmark pronouncement in Jacob Matthew v. State of Punjab are:

                   37. As can be culled out from above, the three essential ingredients in determining an act of medical negligence are:

                   (1) a duty of care extended to the complainant,

                   (2) breach of that duty of care, and

                   (3) resulting damage, injury or harm caused to the complainant attributable to the said breach of duty.

                   However, a medical practitioner will be held liable for negligence only in circumstances when their conduct falls below the standards of a reasonably competent practitioner."

                   14. To hold a doctor liable, this Court in Dr. Mrs. Chanda Rani Akhouri v. Dr. M.A. Methusethupathi observed:

                   "31.... a medical practitioner is not to be held liable simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another. In the practice of medicine, there could be varying approaches of treatment. There could be a genuine difference of opinion. However, while adopting a course of treatment, the duty cast upon the medical practitioner is that he must ensure that the medical protocol being followed by him is to the best of his skill and with competence at his command. At the given time, medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field." (Emphasis supplied)

                   15. Observations in Harish Kumar Khurana v. Joginder Singh, (2011)10 SCC 291 are also instructive. Bopanna J., writing for the Court held:

                   11. "...It is necessary that the hospital and the doctors are required to exercise sufficient care in treating the patient in all circumstances. However, in unfortunate cases, though death may occur and if it is alleged to be due to medical negligence and a claim in that regard is made, it is necessary that sufficient material or medical evidence should be available before the adjudicating authority to arrive at a conclusion." (Emphasis supplied)

9. It is apparent that the deceased was brought to the opposite party no.1 on 26.09.2015 as an un-booked case with history of full term gestation, multi gravida, very weak, anemic and handled by the dais (untrained health worker) with an advance stage of labour. The deceased due to strong uterine contraction due to injection delivered a vaginal baby girl at 9.10 pm and there was no postpartum hemorrhage. The complainant at about 9.30 pm was instructed to arrange two units of blood from the opposite party no. 3. The complainant went to the opposite no 3 for obtaining blood but blood was not given to the complainant due to non-matching of particulars on blood sample and blood requisition form. The deceased at about 9.30 pm developed breathlessness and restlessness and the condition of the deceased continued to deteriorate being weak and highly anemic. The opposite party no.1 was not having adequate facilities for treatment of the deceased and accordingly the deceased was shifted to the opposite party no.2 at about 1.20 am on 27.09.2015. The opposite party no. 2 was not supplied with antenatal or referral notes pertaining to the medical history of the deceased but informed telephonically by the opposite party no 1. The deceased at the respondent no 3 was attended by senior consultants and at that time the deceased was very sick, disoriented and was not responsive to the verbal commands. The deceased was given blood transfusion besides calling ICU team and active resuscitation was also started. The deceased was intubated with continuance of blood transfusion and intravenous fluids. The deceased was in Disseminated Intravascular Coagulation (DIC). The deceased at about 5.30 am developed abdominal distention and ultrasound showed hemoperitoneum due to DIC. The physical condition of the deceased was evaluated after discussion with surgeon, gynecologist and anesthetist and medical management was decided to be continued in view of DIC. The deceased before death had severe bradycardia and CPR was given immediately but the deceased unfortunately died at about 09.18 am on 27.09.2015.

10. We also perused medical record pertaining to the deceased. The Admission slip prepared at the opposite party no 1 reflects that the deceased delivered a baby girl at about 9.10 pm as un-booked G3P2L2 and was referred to the opposite party no 2 for further management. The hemoglobin of the deceased at that time was 4gm and conscious but in shock. The Death-Summary dated 27.09.2015 prepared at the opposite party no 2 reflects that the deceased was diagnosed as P3L3 with severe anemia with shock with DIC with multi organs failure with cardiac arrest. The deceased delivered a child as un-booked patient but no intrapartum complications were observed. The Death Summary further reflects that the deceased was admitted in ICU besides administering appropriate medical treatment. The Death Summary ultimately revealed that urgent USG abdomen revealed haemoperitoneum due to DIC but no surgical intervention was advised. The deceased also developed bradycardia and hypotension but the deceased could not be revived despite rigorous CPR (Cardiopulmonary resuscitation). The deceased died at 27.9.2015 at about 09.18 am.

                   10.1 The medical record pertaining to the deceased reflects that she was brought to the opposite party no 1 at advance stage of pregnancy and was in critical condition being highly anemic. The deceased before delivery and after delivery was given appropriate treatment at the opposite party no 1 which was having limited resources. There is no evidence that the deceased was not handled appropriately by the doctors at opposite party no 1. The deceased was transferred to the opposite party no 2 for further medical management. The complainant/relative was asked by the opposite party no 1 to arrange blood for transfusion from the opposite party no 3 but the blood could not be arranged due to non-matching of particulars pertaining to the deceased on blood sample and blood requisition form. The main contention of the complainant and also argued emphatically by the counsel of the complainant that opposite party no 1 deliberately mentioned wrong particulars of the deceased on the blood sample of the deceased and due to this reason blood could not be arranged from the opposite party no 3 which ultimately proved fatal for the deceased. It is correct that the deceased was highly anemic and was required urgent blood transfusion but blood could not be arranged from the opposite party no 3 due to reason as mentioned above. However as per Death Summary, the deceased died due to multiple organs failure with cardiac arrest and further the deceased was with severe anemic with shock with DIC. It is not reflecting and established on record that the deceased had died due to the reason that the blood could not be arranged from the opposite party no 3 due to alleged deliberate fault on the part of the opposite party no 1. The arguments advanced by the counsel for the complainant does not appeal to reason and cannot be accepted.

11. The complainant submitted a complaint to Medical Council of India which was forwarded to Delhi Medical Council alleging medical negligence by the opposite parties which was decided vide order dated 18.05.2020 on basis of order of the Disciplinary Committee dated 24.02.2020. The Disciplinary Committed after evaluating the medical record and the treatment given to the complainant has exonerated the opposite parties. The relevant portion of the order dated 24.02.2020 passed by the Disciplinary Committee is already reproduced herein above. The Disciplinary Committee also observed that delay in arranging the blood was due to communication gap between the opposite parties no 1 & 3 and the attendant of the deceased. It is already discussed and observed that main cause of death of the deceased was multi organs failure and cardiac arrest and not delay in arranging blood and thereafter blood transfusion.

12. It is apparent that the opposite parties and more particularly the opposite parties no 1 & 2 acted in good faith after making suitable assessment of the condition of the deceased as per their medical expertise and acumen. There is absolutely no evidence that the opposite parties no 1 & 2 were negligent in the treatment of the deceased pre-delivery and post-delivery. The complainant did not lead cogent evidence to prove negligence of the opposite parties in the treatment of the deceased as observed by the Supreme Court in Dr. C. P. Sreekumar V S. Ramanujam. The deceased unfortunately died and the sympathy is with the complainant who was husband of the deceased but the sympathy cannot replace burden to prove medical negligence on the part of opposite parties. It was for the complainant to establish medical negligence on the part of the opposite parties by leading cogent and convincing evidence and mere assertions in complaint or deposition in affidavit tendered in evidence are not sufficient to establish medical negligence as observed by this Commission in Nalini V Manipur Hospital & others. The complainants pleaded negligence in treatment of the deceased and deficiency in service but could not prove that the opposite parties were negligent in treatment of the deceased. The opposite parties 1 & 2 treated the deceased as per established procedure and protocol. The opposite parties have acted like a reasonable man on considerations which ordinarily regulate the conduct of human affairs. There was no apparent or noticeable omission on the part of the opposite parties no 1 & 2 in the treatment of the deceased. The doctors who treated the deceased at the opposite parties 1 & 2 as per Bolam Rule had exercised the ordinary skill of an ordinary competent man in the treatment of the deceased and were possessing appropriate skill and knowledge for the purpose of treatment of the deceased. There is no evidence to prove that the doctors at the opposite parties no 1 & 2 failed to exercise due diligence, care or skill in the treatment of the deceased. The opposite parties cannot be held liable for medical negligence due to mere fact that the deceased had died at the opposite party no 2. The opposite parties cannot be levelled with negligence as their doctors performed his duties with reasonable skill and competence. There was no deficiency of service on the part of the opposite parties in treatment of the deceased.

13. We have considered the arguments and rival contentions of the contesting parties. A doctor is under an obligation to provide high quality, ethical medical care to the patients which involves diagnosis of illness and its appropriate treatment. A doctor is supposed to perform recognized medical procedures with skill and care with follow up actions. The doctors must treat patients attentively and consciously. Simultaneously medical negligence should not be infer in casual manner rather it must be established with cogent, rational and convincing evidence by the person who is claiming negligence qua medical professional. It is established on record that the opposite parties treated the deceased with due diligence and in accordance with the prevailing medical standards. We in view of above discussion of the opinion that the complainant has failed to discharge the burden of establishing negligence or deficiency in service on the part of the opposite parties. Accordingly, the present complaint is dismissed as being devoid of merit. The pending applications, if any, also stand disposed of accordingly.