A.P. Sahi, President
This is a Complaint of medical negligence primarily against the Opposite Party No.l-Dr. Alok Mathur and then against the Ganga Ram Hospital alleging medical negligence on their part while treating Mrs. Pushpa Jain who was aged about 53 years when the incident happened in the year 2003. The allegation in the Complaint is that the Opposite Party No.l failed to diagnose and treat the patient and he also prepared a prescription which did not indicate any analysis or diagnoses. It was alleged that the Opposite Party No.l was consulted and also visited the patient whose breathlessness continued and when the Complainants consulted Dr. K. P. Jain after 3-4 days, they were advised that the patient was critical and she was admitted to Sir Ganga Ram Hospital on 25.08.2003 where she expired on 28.08.2003.
2. The Complainants alleged that they consulted medical experts and there being prima-facie medical negligence evidence available a legal notice was dispatched to the Ganga Ram Hospital for supply of documents followed by a reminder and then the present Complaint was filed on 18.05.2006. Notices were issued and the parties have responded through their written statements. Whereafter the matter was heard by a Bench of two Learned Members of this Commission and since there was a difference of opinion two separate Orders were passed on the issue of obtaining an expert medical opinion. The Order was passed by one of the Learned Member on 20.07.2021 (Mr. S. M. Kantikar) is extracted herein under who dismissed the complaint holding that there is no medical negligence:
"PRONOUNCED ON: 2&h JUL Y2021
ORDER
PER DR. S. M. KANTIKAR, PRESIDING MEMBER
FACTS:
The Complainant No. 1, Mr. S. M. Jain's wife - Mrs. Pushpa Jain, 53 years of age (since deceased hereinafter referred to as the 'patient') was suffering from fever, cough and loss of appetite. On 21.08.2003, she consulted Dr. Alok Mathur (hereinafter referred to as the 'Opposite Party No. 1). It was alleged that Dr. Alok Mathur without examining her gave a prescription for five days for tablet JOX (antibiotic) and other medicines. He told that it was a minor ailment and need not worry. She took the medicines for three days but no improvement. On 24.08.2003, her condition became worse and she became breathless. The Opposite Party No. 1 was called for home visit wherein he casually examined the patient, not examined her chest or recorded blood pressure but prescribed same medicines with changed name of antibiotic from Jox to Oflox. He assured nothing serious and no need of any special investigations or specialists consultation or hospitalisation. On 25.08.2003, patient's breathlessness further deteriorated and therefore, the complainant took her to another physician Dr. K. P. Jain, who after examination advised urgent hospitalisation at Sir Ganga Ram Hospital (hereinafter referred to as the SGRH- the 'Opposite Party No. 5). She got admitted in SGRH on 25.08.2003 and was examined by Dr. Pankaj Aggarwal, who diagnosed it as "right sided pneumonia with hypotension and state of shock". It was alleged that the Opposite Parties (No. 2 to 5) ignored the high diabetic status of patient. The treatment was not adequate but the condition of the patient kept on deteriorating. On 28.08.2003, within three days of the admission, the patient expired. The Complainant requested the hospital to issue entire medical record but it was refused. After 2 to 3 months the hospital gave only one undated death summary of one page. The Complainant paid total bill of hospitalisation of Rs. 6,34,205/-. The Complainant, being aggrieved by the demise of his wife due to negligence during the treatment, filed this Consumer Complaint against all the Opposite Parties.
2. DEFENCE:
The Opposite Parties Nos. 1, 2 & 5 filed their written versions and denied the allegations of medical negligence. As the Opposite Party No. 3 expired, his name was deleted. The Opposite Party No. 4 has not filed its reply. The Insurance Co. - the Opposite Party No. 6 adopted the written statement filed by the Opposite Party No. 2 and stated that the liability of the Insurance Co. is subject to the terms of the Insurance policy.
2.1 Opposite Party No. 1 - Dr. Alok Mathur '
Dr. Alok Mathur denied all the allegations levelled against him. The preliminary objection was that the Complaint was time barred, filed after 2 years from the cause of action. The Opposite Party No. 1 examined the patient at last time on 24.08.2003 and the present Complaint was filed on 17.05.2006. He further submitted that he is MBBS and doing a private practice for the last 20 years as a Physician. As a family physician he knows the family of the Complainant for many years and Complainant's family was fully satisfied with his medical services. On 21.08.2003, the patient visited his clinic with the complaint of pricking sensation in her throat. There was no fever and all vital signs were normal. In August usually viral fever in Delhi is common as an Endemic therefore, viral infection was suspected. Accordingly he prescribed symptomatic medicines and called the patient on the next day if the symptoms persist. However, the patient did not come for next three days. On 24.08.2003, as requested by the Complainant, the Opposite Party No. 1 visited the home of Complainant and examined the patient. She was complaining little more pain in throat and mild whizzing in the chest. On examination, the patient was oriented and no signs of discomfort. He prescribed the antibiotic which the patient earlier took. The medicines for whizzing and throat pain were prescribed. On the next day, the patient's condition deteriorated rapidly and she was examined by Dr. K. P. Jain and diagnosed it as viral fever and advised urgent admission. The patient was admitted in Sir Ganga Ram Hospital on 25.08.2003 and during treatment she expired on 28.08.2003. As the Opposite Party No. 1 was not aware of the events happened after 24.08.2003, therefore he shall not be held responsible for the treatment taken by the patient after24.08.2003. The treatment advised by the Opposite Party No. 1 was as per the regular standard clinical practice. Very occasionally in few patients' severe complications might develop and in the instant case, the common cold might have developed symptoms of acute respiratory distress and if immediately untreated might progress to fatal fulminant pneumonia.
2.2 The Opposite Parties Nos. 2 &5
2.2.1 Dr. Pankaj Aggarwal & Sir Ganga Ram Hospital Dr. Pankaj Aggarwal (the Opposite Party No. 2) submitted that the patient was examined by the senior Consultant Dr. K. P. Jain in his own clinic on 25.08.2003 and she was referred to SGRH in serious condition. The patient was admitted to medicine Unit - 3 under his care in ICU. The patient was treated as per the standard medical protocol by the highly qualified consultants at SGRH namely Dr. K. P. Jain, Dr. Niraj Jain and Dr. Bobby Bhaiotra the Chest Medicine Consultants, and Dr. Sumit Ray the ICU consultant. Because of rapidly progressive disease, at the admission her condition was critical and clinically she was hypoxic, low blood pressure and right sided pneumonia. She was given oxygen and put on ventilator. Thereafter IV Dopamine and antibiotics were given. The patient developed and acquired chest infection from the community before coming the hospital. The entire medical record was given to the Complainant to claim medical reimbursement from the Insurance Co because without original medical record and bills the claim will not be processed. Thus the allegation of the Complainant for not providing full medical record by SGRH is self contradictory.
2.3 Affidavits of evidence in support of SGRH The Opposite Parties filed their affidavits of evidence. In addition, in support of SGRH other treating doctors namely Dr. K.P. Jain, Dr. Neeraj Jain, Dr. Sumit Ray and Dr. Naiin Kaul filed their affidavits of evidence as below:
2.3.1 By Dr. Neeraj Jain:
Dr. Neeraj Jain submitted that he was senior consultant in chest medicine at SGRH. On 25.08.2003, he examined the patient. The patient had fever for seven days. The air entry in the right tower lobe of lung was decreased with crepitation. It was diagnosed as severe pneumonia of right king (tower lobe) with hypotension. He started treatment with antibiotics Inj. Zosym, Inj. Targocid and Inj. Amikacin. The haematological investigations, the culture and sensitivity test for blood and sputum were advised. On 28.08.2003, the patient's condition worsened, she became Anuric (no urine) and hypotensive. The patient suffered subcutaneous emphysema with respiratory failure, shock and renal insufficiency. As per medical literature the common complications of pneumonia are respiratory failure, congestive heart failure, myocardial infarction and renal insufficiency etc.
2.3.2 By Dr. Sumit Ray:
Dr. Sumit Ray submitted that he was working as a junior consultant in Critical Care Medicine & ICU. On 25.08.2003 at 2 p.m., the patient was shifted from casualty to ICU with the diagnosis of severe pneumonia, sepsis and respiratory failure. The patient's blood sugar was high 281mg % and it was corrected with Insulin. The blood sugar was regularly monitored. At the time of admission the serial Arterial Blood Gas (ABG) levels confirmed that there was respiratory acidosis because of pneumonia and respiratory failure and also metabolic acidosis due to sepsis. On 26.08.2003, the patient was. intubated and put on ventilator support. However metabolic acidosis and sepsis continued. She developed subcutaneous emphysema and pneumothorax which was managed by insertion of Inter Costal Drain (ICD) tubes by the Thoracic unit consultants. The patient suffered cardiac arrest at 3.45 p.m. on 28.08.2003 and she was shifted to AMBU bag. The external cardiac massage and CPR was initiated but no cardiac activity was visible; DC shock (200joules) was given but the patient expired at 4.13 p.m.
2.3.3 . By Dr. Nalin Kaul:
Dr. Nalin Kaul is a Medical Director at SGRH and submitted that at SGRH the ICU is well equipped with experienced doctors and paramedical staff. He adopted the submissions made by the other doctors. The patient was treated by the team of doctors consists of consultant from Respiratory Medicine, Cardiology, Thoracic Surgery and Nephrology unit.
3. The pleadings were complete. Both the sides have field their respective brief synopsis of written arguments along with medical literatures and legal citations.
3.1 The Complainant filed medical text from a book "Elements of Health Statistics by N.S.N. Rao, Tara Book Agency Varanasi, 1989".
3.2 The Opposite Parties filed the extracts from the standard medical textbooks as listed below:
1. Pulmonary Diseases and Disorders, Second Edition, Editor Alfred P. Fishman, M.D.
2. Pneumonia, Thomas J. Marrie, G. Gougias Campbell, David H. Walker, Donald E. Low
3. Piperacillin/tazobactam (Zosyn, Tazocin), Chapter 11, Antimicrobial Drug Summaries
4. The chapter 'pneumonia', chapter 'severe sepsis and shock'
5. Community-acquired pneumonia.
4. ARGUMENTS:
4.1 On behalf of the Complainant:
4.1.1 Learned counsel for the Complainant vehemently argued that all the Opposite Parties have negligently treated the patient. The Opposite Party No. 1 did not exhibit standard of care and failed in duty to examine the patient systematically to arrive at correct diagnosis. His approach was casual and he did not realise serious condition of the patient. The learned counsel brought our attention to the expert opinion of Dr. M. C. Gupta. The opinion was given on the basis of clinical notes, prescriptions of the Opposite Parties No. 1 and 5. According to the expert, the Opposite Party No. 1, Dr. Mathur did not examine the patient properly to find out the blood pressure, respiration and the condition of lungs. He did not advise blood count and X-ray chest though there was chest infection and breathlessness. The sputum was not examined. The medicines were prescribed without proper assessment. He should have referred the serious patient to the Specialist, who died within three days.
4.1.2 As per Dr. M. C. Gupta's expert opinion, the total WBC count was very low 900/cmm, it was suggestive of bone marrow depression. The Opposite Party No. 2 failed to investigate the patient properly and did not take opinion of haematologist for low blood count. The simple investigations like Reti-count, Platelet, Bleeding time (BT), Clotting time or Bone Marrow study were not done, which could have helped in better management of the patient. The ultrasound of liver showed prominent liver, but Liver Function Test (LFT) was not done. The death of the patient was due to septicaemia, but the doctors failed to do bacteriological tests from the blood, sputum or pleural fluid or the Broncho-alveolar lavage. The doctors could have considered the possibility of opportunistic infection. Even tuberculosis should have been considered because it was very common in India. It was the act of omission or failure of duty of care of the Opposite Parties Nos. 2 to 5. The learned counsel further submitted that the Delhi Medical Council (DMC) was perturbed by approach adopted by Dr. Alok Mathur (the Opposite Party No. 1) in the initial treatment provided to the patient.
4.1.3 As per the expert, the diagnosis made at admission and final diagnosis were almost the same, proving thereby that the doctors ignored the various other serious findings during the course of admission. The final diagnosis recorded at the time of death was just the same, namely "Pneumonia with severe sepsis with septicaemia". Thus the doctors ignored various crucial findings like bone marrow depression, immuno-suppression, subcutaneous emphysema and presence of bullae in the lungs.
4.2 Argument On behalf of Opposite Parties:
The learned Counsel for the Opposite Party No. 1 reiterated the affidavit of evidence. He submitted that as a family physician, he performed his duty with reasonable care.
4.3 The learned counsel for the Opposite Parties Nos. 2 and 5 submitted that there was no negligence of the treating doctors at SGRH. Even DMC held that the treatment provided to the patient at SGRH was in accordance with accepted medical practice.
The DMC passed the following Order on 29.05.2007as below:
"that the treatment provided to the patient Mrs. Pushpa Jain at Sir Ganga Ram Hospital was in accordance with the accepted professional practices for such clinical situations. The patient died of the natural history of the disease. It was unfortunate that she developed severe pneumonia from a simple viral URTI (Upper Respiratory Tract Infection), which had fulminant downhill outcome" and "no medical negligence could be attributed in the treatment of the patient".
In the instant case, the patient was clinically diagnosed by multiple consultants as pneumonia and opined that there was unfavourable outcome. The patient died of the natural course of the disease because of severe pneumonia. Therefore, no medical negligence could be attributed during the treatment.
4.4 It is pertinent to note that the Complainant first approached SGRH on 07.10.2003 asking for prescription of Dr. Alok Mathur and the medical record of the Hospital. The medical record and reports of SGRH were given to the insurance agent designated by the Complainant himself to settle the final bill of the patient by the Insurance Co.
4.5 The Complainant filed a Complaint before the DMC against the Opposite Parties Nos. 2 to 5 through Advocate Dr. M.C. Gupta. However, it was contradictory and his opinion was biased that same Dr. M. C Gupta gave an expert opinion before this Commission in support of the Complainant in the instant case.
5. REASONING AND CONCLUSION:
5.1 The Opposite Party No. 1 - Dr Alok Mathur is MBBS and practicing for more than three decades as a family physician. On 21.8.2003 the patient reported to him with complaints of fever, nasal block, slight cough and loss of appetite. Based on the symptoms spot evaluation was done and accordingly the treatment was advised. On 24.08.2003 he visited the patient's home and on examination found the patient's vitals were normal, congestion of throat and few crepts in the chest. It was diagnosed as LR7I with URTI and prescribed antibiotic Oflox, expectorant and analgesic. It was an accepted Une of treatment which is not any dereliction of duty. We agree with the opinion of Ethics Committee of MCI that no medical negligence could be attributed in the treatment of the patient from Dr. Alok Mathur. However the warning issued by MCI to adopt accepted protocol whilst examining patients in future does not point out negligence in treatment.
5.2 The Delhi Medical Council (DMC) as well as the Medical Council of India (MCI) and the experts designated by Medical Council of India did not find any medical negligence against the treating doctors of Sir Ganga Ram Hospital(the Opposite Party No. 5). The DMC held that the treatment provided to the patient was in accordance to the accepted professional practices for such clinical situations. The patient died of natural history of the disease. In the appeal filed by the complainant MCI affirmed that no medical negligence could be attributed the treatment of the patient.
5.3 The Hon'ble Apex Court in the case of Achutrao Haribhau Khodwa vs. State of Maharashtra & Ors. (1996) 2 SCC 634, held as under:
"14. 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 Courts 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."
It is pertinent to note that even the highest degree of care and medical treatment had its own limitations and 100% cure for every ailment could not be assured. In the instant case the patient was given best possible treatment at SGRH but she succumbed to her illness.
6. Based on the foregoing discussion it is difficult to conclusively establish medical negligence / deficiency in service during treatment of the patient from the doctor Opposite Parties Nos. 1, 2 and 5.
The Complaint fails, and is dismissed."
3. The other Learned Member (Mr. Dinesh Singh) delivered his separate Order stating that in keeping in view nature of the allegations and the evidence brought on record it cannot be said that no medical negligence could be attributed, it was appropriate to obtain an expert medical opinion and therefore a direction was issued to dispatch the papers to the Director, Maulana Azad Medical College, New Delhi for an opinion. The Order passed by Mr. Dinesh Singh, Learned Member is extracted herein under:
"PRONOUNCED ON: 20th July2021
ORDER
PER MR. DINESH SINGH, MEMBER
I have had the benefit of reading the draft Order of 01.06.2021 by my learned and esteemed brother Dr. S. M. Kantikar.
I would like to write the following.
1. This Complaint has been filed under Section 21(a)(i) of The Consumer Protection Act, 1986.
2. The Complainant has alleged deficiency / negligence against the Opposite Parties No. 1 to No. 4 doctors and the Opposite Party No. 5 hospital, which resulted in the death of the patient, his wife, Mrs. Pushpa Jain, aged about 53 years, and has inter alia sought compensation of rupees 09 crore 50 lakh with interest at the rate of 12% per annum from the date of filing of the Complaint i.e. 18.05.2006 till the date of realisation.
3. The pleadings are complete and the evidence has been filed. Final arguments were heard on 06.12.2019.
4. The Complainant has inter alia filed copies of the following as part of his evidence:
[a] Delhi Medical Council's Order dated29.05.2007; and
[b] Minutes of the Meeting of the Executive Committee of the Medical Council of India held on 13.10.2009.
5. It may first be noted here that The Consumer Protection Act, 1986 (the 'Act 1986') is "to provide for better protection of the interests of consumers and for that purpose to make provision for the establishment of consumer councils and other authorities for the settlement of consumers' disputes and for matters connected therewith".
The Medical Council of India Act, 1956 (the 'Act 1956') is "to provide for the reconstitution of the Medical Council of India, and the maintenance of a Medical Register for India."
Both, the medical councils, and the consumer protection fora, work in their respective domains, as per their respective statutes.
A consumer protection forum adjudicates complaints of deficiency / negligence and unfair trade practice against doctors / hospitals under the Act 1986.
Cases of professional incompetence and misconduct are judged by medical councils under the Act 1956.,
Decisions of a medical council are not binding on a consumer protection forum. Nor can a medical council sit in any form of judgment on the decision of a consumer protection forum.
Decisions of a consumer protection forum are, similarly, not binding on a medical council. Nor can a consumer protection forum sit in any form of judgment on the decision of a medical council.
Decisions of a medical council, though not binding, have, but, to be given the due consideration, as relevant and material to the particular case before a consumer protection forum, in adjudicating deficiency / negligence and unfair trade practice against doctors and hospitals.
6. With the above caveat, it is to observe that:
[a] The following adverse comments have been made in the Delhi Medical Council's Order of29.05.2007against the Opposite Party No. 5hospital:
"----There is enough scope for the hospital to improve public relation further so that complaints against the hospital for not making medical records available to the relatives/patients are avoided.
And the following adverse comments have been made against the Opposite Party No. 1 doctor:
"The Delhi Medical Council, however, is perturbed by approach adopted by Dr. Alok Mathur in the initial treatment provided to the patient, as the same left much to be desired. It is expected of a medical practitioner to properly examine the patient to determine or to at least follow the scientific assessment protocol which may enable him to arrive at a probable diagnosis. In his written statement, Dr. Alok Mathur stated that on 21.8.2003 the patient reported to him with complaints of fever, blocked nose, slight cough and toss of appetite and on examination, he found the patient to be febrile. Throat was slightly congested, chest was dear and all vitals normal. Dr. Alok Mathur further states that on 24.8.2003, on examination, he found the patient's vitais to be stable, throat congested, chest showed a few crepts and further diagnosed her as having LRTI with URTL Dr. Alok Mathur prescribed Ofloxacin, cough expectorant, analgesics and gargles. It is observed from the prescription notes of Dr. Alok B. Mathur dated 24.8.2003 that the same contains the treatment prescribed but makes no mention of the diagnosis as averred by him in his written statement.
"In view of the above, a warning is issued to Dr. Alok B. Mathur with a direction to adopt accepted protocol whilst examining patients in future. - "
The Delhi Medical Council, however, concludes its order as below:
"----No medical negligence could be attributed in the treatment of the patient."
[b] The Minutes of the Meeting of the Executive Committee of the Medical Council of India held on 13.10.2009 inter alia record the following:
"-----The Ethics Committee deliberated in the matter and noting the above decided to uphold the order/decision dt. 29.05.2007 of the Delhi Medical Council, the operative of part of which is as under:-
"....No medical negligence could be attributed in the treatment of the patient and further that a warning is issued to Dr. Alok B. Mathur with a direction to adopt accepted protocol whilst examining patients in future."
"After due and detailed deliberations and perusal of the above stated submissions, the Executive Committee of the Council decided to approve the recommendations of the Ethics Committee that "no medical negligence could be attributed in the treatment of the patient."
7. In respect of the observation of the Delhi Medical Council that- -There is enough scope for the hospital to improve public relation further so that complaints against the hospital for not making medical records available to the relatives/patients are avoided. -it is to note that not providing the complete medical records, dutifully and promptly, is not a simple matter of "public relation", but ex facie qualifies as 'deficiency' within the meaning of Section 2(i)(g) and 'unfair trade practice' within the meaning of Section 2(i)(r) of the Act 1986, on the part of the Opposite Party No. 5 hospital.
8. The adverse observations made apropos the Opposite Party No. 1 doctor and the warning issued to him with a direction to adopt accepted protocol whilst examining patients in future prima facie indicates deficiency / negligence.
The conclusion that no medical negligence could be attributed in the treatment of the patient is therefore incongruent and suffers from inner-inconsistency.
9. The Executive Committee of the Medical Council of India is silent on the issue of not dutifully and promptly providing the complete medical records to the husband (Complainant) of the deceased patient.
It records the recommendation of its Ethics Committee ('------The Ethics Committee deliberated in the matter and noting the above decided to uphold the order/decision dt. 29.05.2007 of the Delhi Medical Council, the operative of part of which is as under:-------"....No medical negligence could be attributed in the treatment of the patient and further that a warning is issued to Dr. Alok B. Mathur with a direction to adopt accepted protocol whilst examining patients in future.'), but, then, in the operative portion of its Minutes, validates that no medical negligence could be attributed to the treatment of the patient (" After due and detailed deliberations and perusal of the above stated submissions, the Executive Committee of the Council decided to approve the recommendations of the Ethics Committee that "no medical negligence could be attributed in the treatment of the patient.").
The Executive Committee ignores the adverse observations and the warning with a direction to the Opposite Party No. 1 doctor by the Delhi Medical Council, ignores the recommendation of its Ethics Committee that a warning be issued to the Opposite Party No. 1 doctor with a direction to adopt accepted protocol whilst examining patients in future, overlooks the incongruity and inner-inconsistency in the order of the Delhi Medical Council, and makes a decision that no medical negligence could be attributed.
10. It is difficult to overlook the deceptive and unfair act on the part of the Opposite Party No. 5 hospital in not providing, dutifully and promptly, the complete medical records of the deceased patient to her husband (the Complainant), it is difficult to overlook the adverse observations and warning with a direction to the Opposite Party No. 1 doctor, it is difficult to overlook the incongruity and inner-inconsistency in the order of the Delhi Medical Council and in the decision of the Executive Committee of the Medical Council of India.
11. In the above backdrop, on a careful perusal of the entire record, without, at this stage, entering further into the merit of the case, or critiquing the other evidence filed by the rival sides, it is feit appropriate and necessary to obtain expert medical opinion on the basis of the entire material on record as on the date of the arguments (i.e. as on 06.12.2019), to enable lawful, just and conscionable adjudication of the case.
12. In respect of 'expert opinions', it may be briefly stated that they are broadly of two types. One are expert opinions filed by the Complainant and / or the Opposite Party hospital / doctor, the other are expert opinions sought by a consumer protection forum. The former is adduced as part of their respective evidence by either or both sides. The latter is sought by the forum, in its considered wisdom, and should generally be sought on the basis of the entire material on record i.e. the Complaint, the Written Version, the Rejoinder thereto, the Evidence (including expert opinion(s) filed by either or both sides), briefs of written arguments (including medical literature filed by either or both sides), and, most importantly, the complete medical record available on the case-file. As such, the two, an expert opinion filed by either side, and an expert opinion sought by a Consumer Protection Forum, are distinctively and differently placed.
The board should ordinarily base its opinion on an objective appraisal of the medical record and material before it. It should give coherent speaking findings, and, preferably, to the extent feasible, individually in respect of the each of the doctors, inter alia considering the instant the one got associated with the treatment of the patient, his faculty, the cause that occasioned his association / summoning and the position of the patient when he got associated.
13. This matter is accordingly referred to the Dean / Director, Mauiana Azad Medical College, New Delhi, with the request to constitute a medical board of experts in the concerned faculties, and to kindly send the board's opinion in sealed cover to this Commission within eight weeks of receipt of the entire material of this case.
14. Learned Counsel for the Complainant is requested to kindly prepare 11 sets of compilations of the entire material available on record as on the date of the arguments, with pagination and index, within two weeks. Learned Counsel for the Opposite Parties are requested to kindly satisfy themselves of the completeness and correctness of the compilation within one week thence. The Registry is requested to provide the necessary facilitation to the learned Counsel for this purpose. The Registry is further requested to send 02 sets of the compilation containing the entire material available on record to the Dean / Director, Mauiana Azad Medical College, New Delhi by special messenger within one week thence, along with a copy of this Order. The Registry is furthermore requested that 01 copy each of the compilation sent to the Dean / Director, Mauiana Azad Medical College, New Delhi is attached with the case-files and 01 copy each is provided to the learned Counsel for the parties.
15. The Registrar is requested to list this matter again after twelve weeks, with timely intimation to the Complainant and the Opposite Parties and to their learned Counsel."
4. The Learned Members after having been delivered their separate Orders recorded "Whether the Complaint be dismissed or whether the matter be referred for the opinion of a medical board of experts" was required to be resolved and the matter was placed before the President to be placed before a third Member.
5. The case came to be listed thereafter on several occasions and that it seems inspite of having been reserved on 14.09.2021 no order was passed by the then Hon'ble President and as such the case was directed to come up for hearing and was accordingly nominated to this Bench.
6. The case was heard on 09.11.2023 when learned counsel for the Opposite Party Mr. Malhotra, the learned Sr. appeared and the following Order was recorded.
"Dated : 0911.2023
ORDER
Heard learned Senior Counsel for the Opposite Party Mr. Malhotra who has given a brief review of the contentious issues in the present complaint regarding the allegations of alleged negligence on the part of Opposite Party No. 1 while treating the deceased. It is urged that the treatment undertaken by the deceased from the answering Opposite Party is limited to the extent of that mentioned in the prescription annexed at C-l where the Opposite Party had examined the complainant's wife on 21.08.2003 and then subsequently at her residence on 24.08.2003. The defense taken in the written version has been read to urge that so far as the protocol of prescribing medicines on having examined the patient, it was as per medical norms and as a matter of fact the dose of medicines prescribed on 21.08.2003 were not adhered to by the patient presumably on account of the non-availability of the branded antibiotic namely Jox. It is submitted that it is for this reason that the said antibiotic was substituted by tablet Aflox on 24.08.2003.Learned Counsel conveys that non-administration of the prescribed medicine for three days is evident from the facts on record and he therefore submits that this should be examined from the prism of res ipso ioquitur. Consequently, the suggestion of any negligence even remotely neither emanates nor does it navigate through the entire treatment administered under the advice of the Opposite Party No.l during 21.08.2003 to 24.08.2003.
He also submits that the background of the nature of the practice of the answering Opposite Party and his association as a physician with the complainant's family for almost 26 years also was a factor which evidences the faith expressed by the Complainants' family and the treatment undertaken which of course unfortunately ended with the Complainants' wife being advised hospitalisation on certain complications which developed later on. He therefore submits that even if that is taken into consideration the admission of the Complainants' wife namely the deceased Mrs. Pushpa Jain in Sir Ganga Ram Hospital, New Delhi on 25.08.2003 also indicates that there was no significant history reported nor there was any adverse ailment indicated at the time of the admission except that the proposed line of treatment would be that of management of pneumonia. Learned Counsel submits that the progression of the ailment of the deceased if taken into consideration on the basis of the analysis and on the strength of the documents which are on record, does not indicate an immediate deterioration at least during the period when the Complainant's wife was being treated by the answering Opposite Party. Learned Counsel submits that keeping in view the competence of the answering Opposite Party or his skills and his experience there was nothing to foresee a serious disadvantage or an adverse circumstance developing so as to predict a complication in future.
The prima facie submissions have been raised in the light of the fact that when the matter appears to have been heard on the previous occasion there seems to be a difference of opinion expressed on the issue of inviting an expert opinion so as to construe negligence. Simultaneous orders that were pronounced by the Hon'ble Members are on record dated 20.07.2021 where after the matter was placed before the President of the Commission who after having perused the two orders directed that the same should be listed before the President on 16.08.2021 while sitting singly.
It seems that the case was thereafter heard on 14.09.2021 and orders were reserved but were not delivered and as such after my predecessor demitted office, the matter was listed for hearing again under an office note dated 21.09.2023 on which directions were issued on 22.09.2023 to list it today. This is how the matter has proceeded, the concern being that this is a Complaint of the year 2006 which deserves to be disposed of at the earliest.
Learned Counsel for the Complainant has urged that the arguing Counsel is not available today but she has noticed the opening submissions made by Mr. Malhotra in this regard as recorded herein above. Let the learned Counsel for the Complainant make himself available to proceed with this matter on the next date.
As agreed, let the case be listed on 13.12.2023 at 02:00p.m."
7. The case was again heard on 13.12.2023 when the following Order was passed:
Dated : 13.12.2023
ORDER
Heard learned Counsel for the Complainant.
The submission advanced by the learned Counsel for the Complainant is that the indication with regard to the deficiencies as alleged against Opposite Party No. 1 can be gathered from the ICU notes of Sir Ganga Ram Hospital that demonstrate that the deceased was admitted with a reported ailment of fever from the past 7 days and which was also sought to be substantiated with the prescription of Dr. K.P. Jain, which is annexure C2 dated 25.08.2003, who had examined the deceased before her admission to Sir Ganga Ram Hospital. The same also according to the learned Counsel for the Complainant clearly indicates the existence of viral fever for the past 5 days, chest pain and difficulty in speaking as well as other symptoms and after having attended the patient he was advised urgent hospitalisation with extensive crept on the right side.
Learned Counsel then submits that the arguments which were advanced on the previous occasion with regard to the status of the patient are incorrect and the attention of the Bench has been invited to the form of authorisation sent from Sir Ganga Ram Hospital to M/s. Genins India Limited with whom the patient was insured. The said authorisation request records that the patient was brought in a shock state with sided pneumonia and hypertension and that the patient was proposed the line of treatment of pneumonia and septicaemia. He then submits that the Opposite Party No. 1 has been taking an inconsistent stand for which the averments made in paragraph 3 (3) and 3 (4) of the reply of the Opposite Party No. 1 are significant as they do not match with the averments which were made by him before the Delhi Medical Council where the statements indicate a diametrically opposed status of the patient, for example, in the reply there is a denial in the above paragraphs and no mention about any fever or any serious state of the patient whereas before the Medical Council, the statement made and recorded at internal page 3 of the said order indicates that the patient had fever and block nose with loss of appetite. The patient was also found to be febrile. Learned Counsel submits that these statements therefore are at variance with the statement made in the reply. It has been further pointed out that he has stated that the chest showed a few crepts and that he had diagnosed her having LRTI and URTI.
It is then pointed out that the Opposite Party No. 1 has nowhere recorded any symptom on the prescription itself or attempted any clinical diagnosis or suggested any pathological test in order to further investigate the said serious symptoms of fever and the other comments made by him before the Delhi Medical Council. It is therefore submitted that so far as the negligence of the Opposite Party No. 1 is concerned, the same is apparently evident from the aforesaid facts.
With regard to the Hospital, it is urged that complete documents that were demanded were not provided for and has been also noted in the orders of one of the Members of the Commission white passing the order on 20.07.2021. The contention is that the non-supply of documents has prejudiced the cause of the Complainant and apart from this the report of the Delhi Medical Council which has been affirmed by the Medical Council of India does not inspire confidence as, in spite of having found the Opposite Party No. 1 to have not followed the medical protocol as arrived at, an incorrect conclusion of the absence of medical negligence has been recorded. Learned Counsel submits it is for this reason that one of the Members in a different opinion has indicated that the matter should be referred to an independent expert body for assessment of the documents of the Opposite Party No. 5, Hospital as well and the opinion on the status of the alleged negligence.
Mr. Meet Malhotra, learned Senior Counsel through his proxy Counsel for the Opposite Party No. -1 has prayed for an adjournment.
Learned Counsel for the Complainant is therefore at liberty to file an affidavit indicating the shortcomings or otherwise non-availability of the documents from Sir Ganga Ram Hospital in order to pin point what are those documents which are necessary for the adjudication of the controversy. Let a copy of the said affidavit be served in advance on the learned Counsel for the Opposite Party No. 5 to enable him to ascertain the status or otherwise of any such documents which may be available and may file a response thereto within four weeks. Let the affidavit be filed by the Complainant within two weeks'. The case be listed for arguments on behalf of the Opposite Party No. 1 as well as the Opposite Party No. 2 and 5 on 07.02.2024 at 2.00p.m."
8. The arguments once again commenced on 07.02.2024 and after having heard the learned counsel for the parties the Order was reserved. The Order dated 07.02.2024 is extracted herein under:
"Dated : 0702.2024
ORDER
The arguments of the learned Counsel for the Opposite Party No. 1 and the Opposite Party No. 2 and 5 have been heard. Learned Counsel for the Opposite Party No. 1 has cited the order of this Commission in "CC/874/2015 Ranjit Sarkar Vs. ILS Hospitals and Ors. dated 09.03.2021".
Learned Counsel for the Complainant has advanced his submissions and concluded the arguments by referring to the orders passed by the two Hon'ble Members on whose difference of opinion the reference has been placed before this Bench for being answered. Learned Counsel for the Opposite Party No. 6 is also present.
Having heard learned Counsel for the parties at length,
Order Reserved."
9. The Order was pronounced on 26.02.2024 which is extracted herein under:
'Pronounced on 26.02.2024.
ORDER
1. The present reference reminds of a classic poetic liner by Alexander Pope:
"Who shall decide, when Doctors disagree,
And soundest Casuists doubt, like you and me?"
2. Two Hon'ble Members white hearing this complaint regarding medical negligence delivered two separate opinions on 20.07.2021. The Presiding Member (Dr. S.M. Kantikar) opined that the complaint deserves to be dismissed and the reasoning and conclusion drawn by him is contained in paragraph 5 and 6 of the order, which is extracted herein under:
"5. REASONING AND CONCLUSION:
5.1 The Opposite Party No. 1 - Dr Alok Mathur is MBBS and practicing for more than three decades as a family physician. On 21.8.2003 the patient reported to him with complaints of fever, nasal block, slight cough and toss of appetite. Based on the symptoms spot evaluation was done and accordingly the treatment was advised. On 24.08.2003 he visited the patient's home and on examination found the patient's vita is were normal, congestion of throat and few crepts in the chest. It was diagnosed as LRTI with URTI and prescribed antibiotic Oflox, expectorant and analgesic. It was an accepted line of treatment which is not any dereliction of duty. We agree with the opinion of Ethics Committee of MCI that no medical negligence could be attributed in the treatment of the patient from Dr. Alok Mathur . However the warning issued by MCI to adopt accepted protocol whilst examining patients in future does not point out negligence in treatment.
5.2 The Delhi Medical Council (DMC) as well as the Medical Council of India (MCI) and the experts designated by Medical Council of India did not find any medical negligence against the treating doctors of Sir Ganga Ram Hospital(the Opposite Party No. 5). The DMC held that the treatment provided to the patient was in accordance to the accepted professional practices for such clinical situations. The patient died of natural history of the disease. In the appeal filed by the complainant MCI affirmed that no medical negligence could be attributed the treatment of the patient.
5.3 The Hon'ble Apex Court in the case of Achutrao Haribhau Khodwa vs. State of Maharashtra & Ors. (1996) 2 SCC 634, held as under:
"14. Courts would indeed be stow 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 Courts 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."
It is pertinent to note that even the highest degree of care and medical treatment had its own limitations and 100% cure for every ailment could not be assured. In the instant case the patient was given best possible treatment at SGRH but she succumbed to her illness.
6. Based on the foregoing discussion it is difficult to conclusively establish medical negligence / deficiency in service during treatment of the patient from the doctor Opposite Parties Nos. 1, 2 and 5.
The Complaint fails, and is dismissed."
3. The other Hon'ble Member (Mr. Dinesh Singh) came to the conclusion that resting one's opinion only on the observations of the Ethics Committee of the Medical Council of India approving the opinion of the Delhi Medical Council would not be appropriate, as according to the learned Member there was no congruity in the conclusion drawn by the Council, which even though commented upon the opposite party no. 1, yet incorrectly came to the conclusion of absolving of him of medical negligence. The observations made in paragraph 5 to 13 therein are extracted herein under:
"5 . It may first be noted here that The Consumer Protection Act, 1986 (the 'Act 1986) is "to provide for better protection of the interests of consumers and for that purpose to make provision for the establishment of consumer councils and other authorities for the settlement of consumers' disputes and for matters connected therewith".
The Medical Council of India Act, 1956 (the 'Act 1956) is "to provide for the reconstitution of the Medical Council of India, and the maintenance of a Medical Register for India."
Both, the medical councils, and the consumer protection fora, work in their respective domains, as per their respective statutes.
A consumer protection forum adjudicates complaints of deficiency / negligence and unfair trade practice against doctors /hospitals under the Act 1986.
Cases of professional incompetence and misconduct are judged by medical councils under the Act 1956.
Decisions of a medical council are not binding on a consumer protection forum. Nor can a medical council sit in any form of judgment on the decision of a consumer protection forum.
Decisions of a consumer protection forum are, similarly, not binding on a medical council. Nor can a consumer protection forum sit in any form of judgment on the decision of a medical council.
Decisions of a medical council, though not binding, have, but, to be given the due consideration, as relevant and material to the particular case before a consumer protection forum, in adjudicating deficiency / negligence and unfair trade practice against doctors and hospitals.
6. With the above caveat, it is to observe that:
[a] The following adverse comments have been made in the Delhi Medical Council's Order of29.05.2007against the Opposite Party No. 5 hospital:
"----There is enough scope for the hospital to improve public relation further so that complaints against the hospital for not making medical records available to the relatives/patients are avoided.
And the following adverse comments have been made against the Opposite Party No. 1 doctor:
" The Delhi Medical Council, however, is perturbed by approach adopted bv Dr. Alok Mathur in the initial treatment provided to the patient, as the same left much to be desired. It is expected of a medical practitioner to property examine the patient to determine or to at least follow the scientific assessment protocol which may enable him to arrive at a probable diagnosis. In his written statement, Dr. Alok Mathur stated that on 21.8.2003 the patient reported to him with complaints of fever, blocked nose, slight cough and loss of appetite and on examination, he found the patient to be febrile, throat was slightly congested, chest was dear and all vitals normal. Dr. Alok Mathur further states that on 24.8.2003, on examination, he found the patient's vitals to be stable, throat congested, chest showed a few crepts and further diagnosed her as having LRTI with URTI. Dr. Alok Mathur prescribed Ofloxacin, cough expectorant, analgesics and gargles. It is observed from the prescription notes of Dr. Alok B. Mathur dated 24.8.2003 that the same contains the treatment prescribed but makes no mention of the diagnosis as averred by him in his written statement.
"In view of the above, a warning is issued to Dr. Alok B. Mathur with a direction to adopt accepted protocol whilst examining patients in future. - -
The Delhi Medical Council, however, concludes its order as below:
"- No medical negligence could be attributed in the treatment of the patient."
[b] The Minutes of the Meeting of the Executive Committee of the Medical Council of India held on 13.10.2009 inter alia record the following:
"---The Ethics Committee deliberated in the matter and noting the above decided to uphold the order/decision dt. 29.05.2007 of the Delhi Medical Council, the operative of part of which is as under:-
. .No medical negligence could be attributed in the treatment of the patient and further that a warning is issued to Dr. Alok B. Mathur with a direction to adopt accepted protocol whilst examining patients in future."
" After due and detailed deliberations and perusal of the above stated submissions, the Executive Committee of the Council decided to approve the recommendations of the Ethics Committee that "no medical negligence could be attributed in the treatment of the patient."
7. In respect of the observation of the Delhi Medical Council that "-----There is enough scope for the hospital to improve public relation further so that complaints against the hospital for not making medical records available to the re/atives/patients are avoided.- - it is to note that not providing the complete medical records, dutifully and promptly, is not a simple matter of "public relation", but ex facie qualifies as 'deficiency' within the meaning of Section 2(i)(g) and 'unfair trade practice' within the meaning of Section 2(i)(r) of the Act 1986, on the part of the Opposite Party No. 5 hospital.
8. The adverse observations made apropos the Opposite Party No. 1 doctor and the warning issued to him with a direction to adopt accepted protocol whilst examining patients in future prima facie indicates deficiency / negligence.
The conclusion that no medical negligence could be attributed in the treatment of the patient is therefore incongruent and suffers from inner-inconsistency.
9. The Executive Committee of the Medical Council of India is silent on the issue of not dutifully and promptly providing the complete medical records to the husband (Complainant) of the deceased patient.
It records the recommendation of its Ethics Committee ("----- The Ethics Committee deliberated in the matter and noting the above decided to uphold the order/decision dt. 29.05.2007 of the Delhi Medical Council, the operative of part of which is as under:-----"....No medical negligence could be attributed in the treatment of the patient and further that a warning is issued to Dr. Alok B. Mathur with a direction to adopt accepted protocol whilst examining patients in future.'), but, then, in the operative portion of its Minutes, validates that no medical negligence could be attributed to the treatment of the patient (" After due and detailed deliberations and perusal of the above stated submissions, the Executive Committee of the Council decided to approve the recommendations of the Ethics Committee that "no medical negligence could be attributed in the treatment of the patient.").
The Executive Committee ignores the adverse observations and the warning with a direction to the Opposite Party No. 1 doctor by the Delhi Medical Council, ignores the recommendation of its Ethics Committee that a warning be issued to the Opposite Party No. 1 doctor with a direction to adopt accepted protocol whilst examining patients in future, overlooks the incongruity and inner-inconsistency in the order of the Delhi Medical Council, and makes a decision that no medical negligence could be attributed.
10. It is difficult to overlook the deceptive and unfair act on the part of the Opposite Party No. 5 hospital in not providing, dutifully and promptly, the complete medical records of the deceased patient to her husband (the Complainant), it is difficult to overlook the adverse observations and warning with a direction to the Opposite Party No. 1 doctor, it is difficult to overlook the incongruity and inner-inconsistency in the order of the Delhi Medical Council and in the decision of the Executive Committee of the Medical Council of India.
11. In the above backdrop, on a careful perusal of the entire record, without, at this stage, entering further into the merit of the case, or critiquing the other evidence filed by the rival sides, it is felt appropriate and necessary to obtain expert medical opinion on the basis of the entire material on record as on the date of the arguments (i.e. as on 06.12.2019), to enable lawful, just and conscionable adjudication of the case.
12. In respect of 'expert opinions', it may be briefly stated that they are broadly of two types. One are expert opinions filed by the Complainant and/or the Opposite Party hospital/doctor, the other are expert opinions sought by a consumer protection forum. The former is adduced as part of their respective evidence by either or both sides. The tatter is sought by the forum, in its considered wisdom, and should generally be sought on the basis of the entire material on record i.e. the Complaint, the Written Version, the Rejoinder thereto, the Evidence (including expert opinion(s) filed by either or both sides), briefs of written arguments (including medical literature filed by either or both sides), and, most importantly, the complete medical record available on the case-file. As such, the two, an expert opinion filed by either side, and an expert opinion sought by a Consumer Protection Forum, are distinctively and differently placed.
The board should ordinarily base its opinion on an objective appraisal of the medical record and material before it. It should give coherent speaking findings, and, preferably, to the extent feasible, individually in respect of the each of the doctors, inter alia considering the instant the one got associated with the treatment of the patient, his faculty, the cause that occasioned his association / summoning and the position of the patient when he got associated.
13. This matter is accordingly referred to the Dean / Director, Maulana Azad Medical College, New Delhi, with the request to constitute a medical board of experts in the concerned faculties, and to kindly send the board's opinion in sealed cover to this Commission within eight weeks of receipt of the entire material of this case."
Thus the opinion expressed was of referring the matter to a body of experts for an independent opinion.
4. This background and the cleavage of the opinion was placed before the then President of the NCDRC, who on 27.07.2021 directed the case to be placed before his lordship on 16.08.2021, nominating himself as the third Member to deliver his opinion. The matter does seem to have been heard on 14.09.2021, but no orders were delivered, whereafter, the case was placed before me and it was directed to be listed accordingly.
5. The case was taken up on 09.11.2023, when the arguments were advanced by the learned counsel for the opposite parties as the complainant's counsel was not in a position to proceed with the matter. On 13.11.2023, learned counsel for the complainant advanced his submissions and the matter was heard recording the submissions of the learned counsel for the complainant. The arguments could not conclude on that day and the learned counsel for the opposite parties rejoined in the arguments that were concluded on 07.02.2024, whereupon orders were reserved.
6. Even though the facts have been noticed to an extent in the two separate opinions of the Hon'ble Members, yet to recapitulate it is on record that the wife of the complainant Mrs. Pushpa Jain, aged about 53 years, developed some cough and cold and other symptoms, whereupon, she visited the opposite party no. 1, Dr. Alok Mathur, for check-up and treatment, who also is described as a family doctor of the complainants and was known to them for more than two decades. The opposite party no. 1 wrote down a prescription directing administration of four medicines and to undertake an inhalation. This prescription is extracted herein under:
Ms. Pushpa Jain
R
O O O - Tab Feixon 1 TDS
""" - Piritexy! 2 tsp TDS.
-Tab Jox200BD
X 5 days
Karisol Inhalers
Tab Rablet 20mg OD
X 3 days
Sd/-
21.08.2003.
7. According to the complainant, the patient did not get any comfort and therefore the opposite party no. 1 was requested to examine her once again, which he did at her residence on 24.08.2003. The prescription was slightly altered and instead of tablet Jox 200, the same was replaced by tablet Oflox 200. The cough expectorant was also altered and a tablet Sumo was also advised. Coupled with this a 5 day Tantum gargle was also recorded on the same prescription of 24.08.2003, which is extracted herein under:
Ms. Pushpa Jain
0 0 0- Tab Oflox200 BD
""" - Capex Expect 2 tsp TDS.
00 - Tab Sumo 1 BD
Tantum gargles X 5days
. Sd/-
24.08.2003.
8. According to the opposite party no. 1, the patient appears to have not been administered the antibiotic tablet Jox that was prescribed on 21.08.2003 may be on account of non-availability of the said medicine and therefore the patient on 24.08.2003 was advised tablet Oflox instead.
9. A perusal of the said prescription does not appear to indicate any advice regarding blood test, x-ray of the chest, or any other radiological or pathological test. The said prescription also does not record any specific symptoms or any provisional diagnosis even though an explanation describing the symptom was tendered before the Delhi Medical Council. However, the antibiotics were advised, in all probability, keeping in view the complaint by the patient that she had fever, cough and loss of appetite. This appears to be the entire role of the opposite party no. 1 against whom basic negligence for deficient treatment has been alleged.
10. On 25.08.2003, the complainant took the patient to Dr. K. P. Jain, who noted the viral fever symptoms persisting for five days and then noted the temperature, respiratory rate, blood pressure that was 80/60 and extensive crepts on the right side of the chest. It was also noticed by him that there was difficulty in swallowing, difficulty in speaking and the patient was accordingly advised urgent hospitalization. The prescription of Dr. K. P. Jain is extracted herein under:
Mrs. Push pa Jain
53 yrs
Viral fever 5 days.
Burning throat, difficulty swallowing, pain throat
Pain chest. Difficulty speaking.
97o F80/60 Resp rate 60/mt
Extensive crepts Rt side.
Advise urgent Hospitalization
S.G.R. Hospital
Sd/-"
11. The patient appears to have been insured and consequently for meeting hospital treatment expenses, the attending doctor at Sir Ganga Ram Hospital Dr. Agarwal, noted down the symptoms and an authorization request was tendered to the under writers of the Insurance Company giving them an estimate of the status of the patient as also the expenses that were likely to be incurred in the treatment proposed for the patient. This authorization request dated 25.08.2003 records that there was no other significant problem but the patient was diagnosed to have pneumonia with hyper tension in a shock state with sepsis. Accordingly, the treatment for management of pneumonia commenced. The patient was treated at Sir Ganga Ram Hospital for three days, where she ultimately expired on 28.08.2003.
12. The complainant alleges that the relevant documents were not given by the Hospital as a result whereof the complaint could not be filed immediately. Learned counsel for the Hospital has however, countered this submission by pointing out towards the written statement to the effect that the original documents were all handed over to the complainant as they were required for being produced in order to set up the claim before the Insurance Company. The said documents therefore according to the Hospital were handed over to the agent of the Insurance Company as designated by the complainant. Nonetheless, the fact remains that the present complaint was instituted on 18.05.2006. The necessity to mention these dates has arisen as the learned counsel for the opposite parties have taken an objection with regard to the delay in filing of the complaint without any explanation beyond the period of two years of the date of cause of action. It is their contention that the period of two years had expired way back in August, 2005 itself and in the absence of any plausible explanation the complaint ought to be dismissed on the ground of limitation.
13. The complaint has also been filed along with an affidavit of Dr. Mahesh Chandra Gupta, who according to the complainant is an expert and who has clearly opined that the opposite party no. 1 did not get any pathological test conducted nor did he examine and diagnose the status of the patient, and had he done so, he would have correctly advised the patient to observe the protocols of treatment including choice of medicines as a first line of treatment. The said affidavit of Dr. M. C. Gupta virtually focuses on the negligence of the opposite party no. 1 and then also comments upon Ganga Ram Hospital by not appropriately treating the patient who ultimately died due to pneumonia with severe sepsis and septicemia.
14. Thus, the treatment commenced with the prescription of Dr. Alok Mathur dated 21.08.2003 and 24.08.2003 that was followed by the advice by Dr. K.P. Jain, who recommended urgent hospitalization and then the admission of the patient to Sir Ganga Ram Hospital under Dr. Pankaj Aggarwal. The allegation against the opposite party no. 1 is directly to the effect that he failed to follow the ordinary skills that were expected from him by offering the appropriate treatment to the patient that too even without any diagnosis or narration of symptoms on the prescription. In effect the allegation is that the approach was casual and below the standards of the expected skill of the opposite party no. 1.
15. It is also evident that when these facts were argued before the Bench on 20.07.2021, the documents pertaining to the Delhi Medical Council and the Medical Council of India were on record. The report of the Delhi Medical Council dated20.05.2007is extracted herein under:
"The Delhi Medical Council examined a complaint of Shri S.M. Jain alleging medical negligence and professional misconduct on the part of respondents 1 to 4, in the treatment administered to complainant's wife, Smt. Pushpa Jain, resulting in her death on 28th August 2003. The Delhi Medical Council perused the complaint, written statement of Dr. Alok Mathur, Dr. Pankaj Aggarwal and Dr. Nalini Kaul, Director Medical, Sir Ganga Ram Hospital, medical records of Sir Ganga Ram Hosptiai and other documents on record. The following were heard in person:-
1. Shri S.M. Jain Complainant
2. Dr. Alok Mathur Sir Ganga Ram Hospital
3. Dr. Pankaj Aggarwal Sir Ganga Ram Hospital
4. Dr. Neeraj Jain Chest Physician, Sir Ganga Ram Hospital
5. Dr. Sumit Ray ICU Consultant, Sir Ganga Ram Hospital
6. Dr. K.P. Jain Sir Ganga Ram Hospital
7. Dr. Nalini Kaul Medical Director, Sir Ganga Ram Hospital
Dr. Saket Gupta, Respondent No. 3 did not participate in proceedings in spite of notice. The patient was first seen by Dr. Alok Mathur in his clinic on 21.8.2003. He diagnosed her to be suffering from URTI and started necessary treatment. As the patient did not get relief, Dr. Mathur was called to her residence on 24.8.20023 to see her again and after examining further necessary treatment was started by Dr. Alok Mathur. However, the patient did not get any relief and as her condition deteriorated further, she was then seen by Dr. K.P. Jain who advised her immediate hospitalization in Sir Ganga Ram Hospital on 25.8.2003. She was diagnosed to be suffering from Pneumonia L with viral fever and necessary treatment was started. In spite of all treatment provided to her, she could not come out of her illnesses and succumbed to the same on 28.8.2003. No postmortem examination was done. She was clinically suffering from a Fulminating type of Pneumonia which has high mortality even with best of treatment.
Primarily the complainant raised the following basic issue - Dr. Alok Mathur did not clinically examine the patient adequately; therefore he missed the diagnosis on both the occasions when he confronted with the patient. Dr. Alok Mathur on the other hand stated that he examined the patient including chest examination. It will not be possible to verify this contention of the complainant as the patient has already died. Further fulminating type of Pneumonia may not be possible to be diagnosed very early and unfortunately it progresses very rapidly. However, treatment prescribed by Dr. Alok Mathur was covering entire spectrum of the prevailing clinical situation. Daily progress of the patient was not made available to Dr. Alok Mathur. Only when the patient became breathless. Dr. K.P. Jain was informed and then hospitalized in Sir Ganga Ram Hospital.
In spite of asking for the records repeatedly, the hospital authorities did not provide the case papers to the complainant. This is definitely contradictory to maintenance of healthy sympathetic relationship with patients and their relatives.
Considering all above, the Council is of the opinion that the treatment provided to the patient at Sir Ganga Ram Hospital was in accordance with the accepted professional practices for such clinical situations. The patient died of the natural history of the disease. It was unfortunate that she developed severe Pneumonia from a simple viral URTI which had fulminating down hill outcome. There is enough scope for the hospital to improve public relation further so that complaints against the hospital for not making medical records available to the relatives/patients are avoided.
The Delhi Medical Council, however, is perturbed by approach adopted by Dr. Alok Mathur in the initial treatment provided to the patient, as the same left much to be desired. It is expected of a medical practitioner to properly examine the patient to determine or to at least follow the scientific assessment protocol which may enable him to arrive at a probable diagnosis. In his written statement, Dr. Alok Mathur stated that on 21.8.2003 the patient reported to him with complaints of fever, blocked nose, slight cough and loss of appetite and on examination, he found the patient to be febrile, throat was slightly congested, chest was dear and all vitals normal. Dr. Alok Mathur further states that on 24.8.2003, on examination, he found the patient's vitais to be stable, throat congested, chest showed a few creots and further diagnosed her as having LRTI with URTI. Dr. Alok Mathur prescribed Ofloxacin, cough expectorant, analgesics and gargles. It is observed from the prescription notes of Dr. Alok B. Mathur dated 24.8.2003 that the same contains the treatment prescribed but makes no mention of the diagnosis as averred by him in his written statement.
In view of the above, a warning is issued to Dr. Alok B. Mathur with a direction to adopt accepted protocol whilst examining patients in future.
No medical negligence could be attributed in the treatment of the patient. ]
Complaint stands disposed.
By the Order & in the name of Delhi Medical Council
(Dr. R.N. Baishya)
Secretary"
16. The Delhi Medical Council as quoted above, did record its disturbance on the Une of initial treatment provided to the patient by observing that the same left much to be desired. It is also observed that it is expected of a medical practitioner to property examine the patient to determine or to at least follow the scientific assessment to arrive at a probable diagnosis. The statement of Dr. Alok Mathur made before the Delhi Medical Council was taken into consideration to observe that from the prescription notes, the treatment prescribed makes no mention of the diagnosis. Accordingly, the Delhi Medical Council issued a warning to Dr. Alok Mathur with a direction to adopt accepted protocol while examining the patients in future. Having said so the Delhi Medical Council categorically opined that no medical negligence could be attributed in the treatment of the patient.
17. It is against this order that an appeal seems to have been filed by the complainant before the Medical Council of India. The Medical Council of India appears to have constituted a committee to examine it and thereafter on 13.10.2019 recorded its opinion approving the recommendation of the ethics committee that no medical negligence could be attributed in the treatment of the patient. The said opinion of the Medical Council of India that was recorded as item no. 25 in the meeting dated 13.10.2009 is extracted herein under:
"25. Appeal by Mr. S.M. Jain against the Order dated 29.05.2007of Delhi Medical Council.
Read: The matter with regard to Appeal by Mr. S.M. Jain against the Order dated 29.05.2007 of Delhi Medical Council along with the recommendations of the Ethics Committee.
The Executive Committee of the Council observed the following decision Committee taken at its meeting held on 29th and 30th July, 2009 as under- of the Ethics
"The Ethics Committee considered the ongoing matter with regards to appeal dated 27.07.2007 by Mr. SM. Jain against the Order dated 29.05.2007 of Delhi Medical Council and observed that Dr. Saket Gupta had been requested to appear before the Ethics Committee at its today meeting i.e. 29 July, 2009 but he has again failed to appear, and therefore the Committee decided to proceed further with the consideration of the matter and noted-
I. The following decision of the Ethics Committee taken at its meeting held on 10 & 11 August2007:
"The Ethics Committee considered the matter with regard to appeal against the Order dated 29.05.2007 of Delhi Medical Council complaint made by Mr. S.M. Jain as well as Sir Ganga Ram Hospital, Delhi and the Ethics Committee decided that this case may be taken up as an appeal case and doctors involved viz. Dr. Alok Mathur, Dr. Pankaj Aggarwal, Dr. R.K. Gupta, Dr. Saket Gupta may be asked to send their parawise comments on this matter to the Ethics Committee within 21 days of receipt of this communication
II. The following decision of the Ethics Committee taken at its meeting held on 6 & 7 December, 2007:
"The Ethics Committee considered the appeal against the order dated 29.05.07passed by Delhi Medical Council on the complaint made by Mr. S.M. Jam and noted that Dr. Alok Mathur, Dr. Pankaj Aggarwal, Dr. R.K. Gupta & Dr. Saket Gupta were requested to submit their para-wise comments on the complaint made by Mr. S.M. Jain as well as particulars of qualification and registration The Ethics Committee further noted that Dr. Pankaj Aggarwal and Dr. Alok Mathur have sent their comments and particulars. The reply of Dr. R.K. Gupta and Dr. Saket Gupta are still awaited. The ethics Committee decided that a reminder may be sent to them to submit their reply within 15 days"
III . The following decision of the Ethics Committee taken at is meeting held on 07 & 05 July, 2008
"The Ethics Committee considered the matter with regard to appeal by Mr. S.M. Jam against the order dated 29.05.2007 of Delhi Medical Council and decided to call the complainant and the treating doctors whose comments have been received. The HOD of Medicine, Maulana Azad Medical College, New Delhi may be requested to assist the Ethics Committee by giving his opinion/comments. AH the relevant documents perianang to this case may be sent to the HOD of Medicine at MAMC, Delhi
IV . The following decision of the Ethics Committee taken at its meeting held on 21 & 22" May. 2009:
"The Ethics Committee considered the matter with regards to appeal dated27.07.2007by Mr.S.M. Jain against the order dated 29.3.2007 of Delhi Medical Council and noted that the complainant Mr.S.M. Jain and the treating doctors Dr. Saket Gupta, Dr. Alok Mathur & Dr. Pankaj Agarwal had been requested to appear before the Ethics Committee today Le 22.05.2009 but only Dr. Pankaj Agarwal and Dr Alok Mathur have appeared today and their statements are as onder
Statement of DR. Pankaj Kumar Agarwal
1. Dr. Pankaj Kumar Agarwal passed MBBS from Calcutta Medical College, Calcutta in the year 19811 did MD (Medicine) from KG Medical College, Lucknow in the year 1985 and I have been working in Sir Ganga Ram Hospital since 1989.
At the time when the patient was admitted I was Associate Consultant is the unit of Dr. K.P Jain ie. Medical Unittil and have been part of the treating unit. The patient came to Sir Ganga Ram Hospital on 25th August, 2003 with right lower lobe severe pneumonia at about 10 am with shock. She was admitted in the Intensive Care Unit of the hospital and was treated by the Consultants of Medicine Unit HI. Chest Unit of Dr. Neeraj Jain and ICU unit aiongwith other specialists. Her condition kept of worsening insoite of all the treatment given including mechanical ventilation and she could not be saved. She expired on 28 August, 2003 due to severity of the disease process.
The complainant himself has mentioned on page & para 9 of the complaint that serious condition of the patient was told to him by De KP Jain, admitting Consultant before admission while examining her in his private clinic. During her stay at Sir Ganga Ram Hospital, various doctors have prognosticated the attendants unte times, as mentioned in the case sheet with date and time, list of which has already submitted. Medical records are in the custody of the hospital administration and Medical Records Department of the hospital and I have no control o authority to give it. The complainant's previous questions and queries have been answered. The patient was being managed by a team of Consultants in the Intensive Care Unit of the herepitai rather than by any one doctor but she did not respond to any treatment and expired due to the severity of the illness
Sd
Dr Pankaj Kumar Agarwal)
22 May 2009
Statement of Dr Alok Mathur
1. Dr. Alok Mathur passed my MBBS from MAM ME, New Delhi in the year 1978 and after that 1 started practicing in Vasant Vihar in my own clinic.
On 21.8.2003, Mrs. Jain came to my clinic and complaint of irritation in the throat with slight body ache for which I prescribed for decongestant syrup and antipyretic for the body ache On clinical examination all vitals were normal but slight congested throat. On 24 of August, 2003 1 was called at the residence of the patient as she was complaining of severe pain the throat and slight fever. The patient was sitting comfortably all vitals were stable. There was slight congestion in the throat and few scattered crepts in the chest, Considering this as lower respiratory infection I started her on antibiotic and cough expectorant and antipyretic because of pain in throat she was also given tantum gargles After this there was no response from the patient's end
Sd
(Dr.Alok Mathur)
The Ethics Committee considered the matter and decided that-i) the complainant Mr.SM. Jain and the treating Dr Saket Gupta be given a final chance to appear before the Ethics Committee Dr.Richa Diwan, Prof & HOD, Medicine, MAMC, New Delhi should be sent a reminder to solicit her expert opinion as earlier decided
The following decision of the Ethics Committee taken at its meeting held on 08 & 09 July, 2009
"The Ethics Committee considered the ongoing matter of appeal dated 27.07.2007 by Mr. SM Jain against the Order dated 29.03.2007 of Delhi Medical Council and noted that De Saket Gupta and Mr.SM. Jain had been requested to appear before the Ethics Committee on 09.07.09 Dr. M. C. Gupta has appeared before the Ethics Committee on behalf of the complainant Mr. S M. Jain and discussed the matter verbally and gave the statement on behalf of Mr Jain, the same is as under:
Statement of Dr. M. C. Gupta
(Appeared on behalf of the complainant r.e SM. Jain)
1. Dr. M. C. Gupta stated that Dr. Alok Mathur did not examine the patient properly, did not make a proper diagnosis because he missed vita! findings which were not examined and he gave medicines which were not warranted and which were possibly responsible for causing serious side effects especially Rena! failure leading to death. He prescribed the same medicines under two different brand names either knowingly or unknowingly. About hospital doctors, the & Medical Superintendent of the Ganga Ram Hospital did not provide treatment record inspite of persona! requests and two legal notices over a period of three years. When the National Commission ordered for supply of records within three days, they were supplied after 13 days. This raises suspicion of tampering with records specially in view of the fact that Dr. R. K. Gupta treated the patient (as shown by the visits made by him and the visiting charges in the bill and also by the fact that the death certificate was supposed to be sent by him) but the hospital said in their reply that Dr. R. K. Gupta did not treat the patient at all. There is also an affidavit from the complaint's daughter that he used to treat him.
This is my submission
Thanking you,
Sd
(Dr. M. C. Gupta)
The Committee noted that Dr Saket Gupta had been requested to appear before the Committee but he has failed to do so and therefore the Committee decided that a final chance be given to Dr.Saket Gupta before deciding the matter ex-parte."
The Ethics Committee deliberated in the matter and noting the above decided to uphold the order/decision dt. 29.05.2007 of the Delhi Medical Council, the operative of part of which is as under:-
"No medical negligence could be attributed in the treatment of the patient and further that a warning is issued to Dr. Alok B. Matiur with a direction to adopt accepted protocol whilst examining patient's in future."
After due and detailed deliberations and perusal of the above stated submissions, the Executive Committee of the Council decided to approve the recommendations of the Ethics Committee that "no medical negligence could be attributed in the treatment of the patient"."
18. It is thus evident that the conclusion drawn that there is no medical negligence was accepted by the Hon'ble Presiding member and the complaint was dismissed but the other Hon'ble Member on a perusal of the aforesaid reports came to the conclusion that there is incongruity and inconsistency in the reports in as much as, once the conduct of the opposite party no. 1 was found to be perturbing as not being in accordance with medical protocols, there was no occasion for the Delhi Medical Council to have absolved him of his negligence. It is urged that the manner in which the prescription was noted by the opposite party no. 1 leaves no room for doubt that he did not taken the matter seriously and dealt with the patient very casually treating her to be an ordinary patient of cough and cold. It is urged that had pathological tests, blood tests, x-ray and other related examinations been carried out, the patient could have been suitably treated or even hospitalized, which was done by Dr. K.P. Jain on 25.08.2003. Thus according to the complainant negligence is writ large against the opposite party no. 1, against whom the allegations made are almost established. Absence of any such examination, the conduct of sputum test and the lack of advice regarding blood counts is gross negligence on the part of the opposite party no. 1 for ascertaining the symptoms of the deceased with which the patient was suffering.
19. It is further the contention of the learned counsel for the complainant that Dr. Alok Mathur had improved upon his statement before the Delhi Medical Council, where he clearly stated that the patient was febrile, had developed crepts and had respiratory tract infections. It is urged that these symptoms, were admitted by Dr. Alok Mathur before the Delhi Medical Council, hence the ultimate conclusion that there was no negligence on the part of the opposite party no. 1 is without any substance as he had failed to record these symptoms on the prescription either on the 21st or 24h of August, 2003.
20. Learned counsel for the opposite party no. 1, however, defended the line of treatment contending that there is no allegation in the complaint or any other material to demonstrate that the medicines prescribed to the patient by the opposite party no. 1 were not the accepted line of treatment. The antibiotics keeping in view the complaint made by the patient about cough and cold were clearly related to respiratory infections. The antibiotics therefore advised were in respect of the line of treatment as expected to be initially administered on such symptoms. It is urged that the status of the patient might have deteriorated on account of non administration of the medicines as prescribed on 21.08.2003. This cannot be a negligence attributed to the opposite party no. 1. To the contrary the opposite party no. 1 immediately prescribed the available antibiotic on 24.08.2003 to which the patient does not appear to have responded very promptly but this cannot be treated to be negligence on the part of the opposite party no. 1.
21. It is here that this Commission has to consider as when would the act or omission be described as a negligence act on the part of the treating doctor and as to whether the material on record is sufficient to arrive at one conclusion or the other or to resort to a reference to a body of experts in the background of the difference expressed by the two Hon'ble Members.
22. Having heard learned Counsel for the parties and having considered and perused the documents on record, it is correct that in the prescription dated 21.08.2003 and again on 24.08.2003 transcribed by Dr. Alok Mathur, there is no endorsement of the symptoms or the diagnosis but at the same time while giving his statement before the Delhi Medical Council, he has stated that the patient complained of fever, blocked nose, slight cough and loss of appetite and on examination he found the patient to be febrile. Her throat was slightly congested, chest was dear and all vitals normal. This statement does not appear to have been contradicted by any evidence to the contrary. The statement also indicates that chest was dear which in all probability would have been on a stethoscopic examination. It is also dear that Dr. Mathur stated that all vitals were normal. The word "Vitals" in ordinary parlance of medical examination means blood pressure, temperature, pulse rate, etc.. While describing the patient in his statement before the Delhi Medical Council, Dr. Mathur admitted having seen the patient in his clinic on 21.08.2003 and diagnosed her to be suffering from Upper Respiratory Tract Infection and started the necessary treatment. The medicine prescribed is Jox which is a broad spectrum antibiotic. He, however, further in respect of the condition of the patient on 24.08.2003 stated before the Delhi Medical Council that the chest indicated a few crepts and accordingly diagnosed her as having Lower Respiratory Tract Infection with Upper Respiratory Tract Infection. The medicine prescribed on 24.08.2003 is Oflox. The Delhi Medical Council observed that Pneumonia may not be possible to be diagnosed very early and it unfortunately progresses very rapidly. However, the prescription by Dr. Mathur for treating the infections covered the entire spectrum of the prevailing clinical situation. It is also observed that the daily progress of the patient was not made available to Dr. Mathur. At this juncture, the expert opinion retied on by the Complainant of Dr. Gupta needs to be mentioned where he has observed that this line of treatment was not appropriate and instead of the medicines prescribed Dr. Mathur ought to have prescribed Augmentin.
23. As indicated above, even though the symptom and the diagnosis were not transcribed on the prescription by Dr. Mathur yet the statement made by him before the Delhi Medical Council of having examined the patient on 21.08.2003 and then 24.08.2003 suggest that probably he had physically examined the patient of her vitais, her chest and had also observed a few crepts. On this basis, he stated that he had diagnosed her for LRTI with URTI.
24. The question is as to whether Dr. Mathur was negligent and did not exercise his ordinary skills expected of him while proceeding to record his diagnosis and treat the patient.
25. To resolve this issue, in the background of the comment made by the Delhi Medical Council about being perturbed by the approach of Dr. Mathur in the initial treatment, the issue of administering the correct medicines on such symptoms as narrated by him before the Delhi Medical Council did require an assessment more expressly. The Delhi Medical Council even though indicated that the treatment prescribed covered the entire spectrum of the prevailing clinical situation, yet the issue of the correct Une of treatment was doubted by mentioning the word "Perturbed" as referred to above. This was supplemented with a further observation about the level of expectation from a medical practitioner to properly examine the patient to determine or to at least follow a scientific assessment protocol that may enable the doctor to arrive at a probable diagnosis.
26. The Delhi Medical Council has not disbelieved the statement made before it by Dr. Alok Mathur but it did create a doubt by the observations made and then also by issuing a warning to him to adopt accepted protocols while examining patients in future. This observation of the Delhi Medical Council has been construed by one of the Hon'ble Members ( Hon'ble Mr. Dinesh Singh) to be incongruous with the ultimate conclusion about no medical negligence being attributed to Dr. Mathur while treating the patient. This therefore appears to be the cause for dissent by the Hon'ble Member who did not agree with the dismissal of the complaint by Presiding Member and further opined that expert medical opinion be obtained before proceeding to finally decide the matter.
27. One of the possible conclusions that could be drawn on the basis of the material on record is that the Delhi Medical Council was possibly correct in its conclusion after having recorded the statement of Dr. Mathur to be convinced about the line of treatment given to the patient to be a correct accepted approach. The Presiding Member therefore accepted the opinion of the Delhi Medical Council as affirmed by the Medical Council of India.
28. The question is as to whether the line of treatment extended was as per protocol or not even though not reflected in the prescription and as to whether Dr. Mathur could have been absolved of medical negligence even if it is presumed that the prescribed medicines were the correct medicines on the symptoms as observed by him.
29. The medicines prescribed at the initial stage on 21.08.2003 and that on 24.08.2003 are broad spectrum antibiotics. When the matter was taken up in appeal before the Medical Council of India, then the observations made while recording the proceedings of the Ethics Committee in July 2008, refers to a resolve made to request the Head of Department of Medicine, Maulana Azad Medical College New Delhi to assist the Ethics Committee by giving his opinion and comments, and for this all the relevant documents were directed to be sent to the Head of the Department of Medicine at Maulana Azad Medical College, New Delhi.
30. During the course of arguments, Dr. Pankaj Aggarwal who was present in Court pointed out the aforesaid fact and suggested that the Medical Council of India took a decision also keeping in view the said consultative process. However, on further enquiry neither of the learned Counsel nor Dr. PK Aggarwal could point out the opinion from the Maulana Azad Medical College either having been received or considered in the final resolution of the Medical Council of India. It is therefore evident that it was resolved to solicit the expert opinion from Dr. Richa Diwan Professor and Head of Department of Medicine Maulana Azad Medical College, New Delhi and a reminder was sent on that count. There is no mention of any such expert opinion having arrived at when the Ethics Committee finally deliberated and upheld the order of the Delhi Medical Council. Even though there is a presumption of the presence of the entire material being available before the Ethics Committee, yet the aforesaid expert opinion sought from the Head of Department of Maulana Azad Medical College does not seem to be expressly reflected in the resolution of the Medical Council of India.
31. This fact has not been gone into by either of the two Members, one of whom who has dismissed the complaint and the other who has sought for an expert opinion. In my considered view, there was already an expert opinion solicited by the Medical Council of India possibly in order to understand the correct protocol of treatment prescribed by Dr. Mathur as explained in his statement before the Delhi Medical Council. Had the aforesaid expert opinion been considered on record, the same would have brought about clarity in respect of the line of treatment extended by Dr. Mathur.
32. It is quite possible that the report might have been before the Ethics Committee or possibly may not have arrived as it does not find expressly mentioned in the resolution of the Medical Council of India.
33. Thus, in the proceedings of the Medical Council which has been accepted by presiding Member (Hon'ble Dr. S. M. Kantikar), it appears that the Medical council also felt the need of obtaining an expert opinion from the Head of Department of the Maulana Azad Medical College which does not seem to have been noticed by the Hon'bie presiding Member while dismissing the complaint.
34. While expressing doubt about the incongruity, the other Hon'ble dissenting Member (Hon'ble Dinesh Singh), also does not seem to have noticed this fact and has instead asked for an independent medical expert opinion.
35. Learned Senior Counsel for the opposite party no. 1 has relied on the decision of Ranjit Sarkar Vs ILS Hospital (Supra) to urge that it is not necessary for this Commission to call for a report from an expert or medical board and on the facts of this case, it is not necessary to exercise this discretion. He contends that the entire material is available and a mere alleged shortfall in not recording the symptoms or diagnosis in the prescription is not medical negligence. There is no medical negligence established regarding the line of treatment and that is why the Delhi Medical Council and the Medical Council of India observed that there is no negligence that can be attributed to Dr. Mathur. He submits that a warning issued for not observing the protocol of transcribing a prescription does not in any way amount to an indictment for medical negligence.
36. To that extent, the said submission requires consideration but on facts herein, what can be observed as noted above that the Medical Council of India also felt the need of an expert opinion from the Head of Department of Medicine Maulana Azad Medical College that was solicited and a reminder was also sent. Thus the said requirement appears to have been desirable and to that extent an opinion seems to be justified. When the Council itself found it necessary to call for an opinion before rendering its decision, then in that event the same needs to be taken into account before proceeding further.
37. Accordingly in the above background, the aforesaid expert opinion from the Head of Department Maulana Azad Medical College New Delhi as desired by the Medical Council of India would be a crucial document in order to give a quietus to this controversy, instead of calling for any medical report from another expert body or constitute a medical board for the same.
38. In order to finally resolve the doubt expressed or the correctness of either of the views, I find it appropriate to request the Director of Maulana Azad Medical College New Delhi to make available the report if tendered by the then Professor and Head of Department of Medicine Dr. Richa Diwan or any other such report which may be available, that quite possibly may have been sent to the Ethics Committee of the Medical Council of India, in a sealed cover and dispatch the same to this Commission preferably within a month.
39. It is also evident that a resolution was passed by the Medical Council of India to send all the relevant documents for the opinion of the Head of the Department of Medicine at the Maulana Azad Medical College New Delhi. The said records may also be examined and in the event such records have been received at the Maulana Azad Medical College New Delhi, the Director is requested to kindly inform this Commission about the same if available. If from an examination of the records the Director finds that the opinion had been sent to the Medical Council of India then the same may be provided as observed above and in the event no such opinion was tendered, then keeping in view the resolution of the Medical Council of India let the said opinion be tendered once again if not already given earlier.
40. A copy of this order may be dispatched to the Director Mauiana Azad Medical College for his perusal and appropriate action and a copy of this order may also be sent to the present authorities substituted in place of the Medical Council of India, namely the concerned authority of the Medical Commission for appropriate steps in this regard.
41. L ist for directions/orders on 28.03.2024."
10. This Commission also made an enquiry of the availability of the documents from the National Medical Commission and they dispatched a letter on 21.05.2024 stating that that no such record was available and that it is only the Mauiana Azad Medical College, New Delhi which could throw light on the same. The letter dated 21.05.2024 is extracted herein under:
'Date: 21.05.2024
To,
The Assistant Registrar
(Sh. Rajesh Nath)
National Consumer Dispates Redressal Commission,
Upbohkta Nyay Bhawan, "F-Block,
General Pool Office Complex, INA, New Delhi-110023
Subject: National Consumer Dispates Redressal Commission New Delhi letter dated 06.03.2024 in the Original Petition No. 47 of 2006 in the matter of Sh. S. M. Jain Vs. Dr. Alok Mathur & Ors-reg.
Sir,
I am directed to refer to National Consumer Disputes Redressai Commission New Delhi's letter dated 06.03.2024 in the Original Petition No 47 of 2006 in the matter of Sh. S. M Jain Vs. Dr. Alok Mathur & Ors Forwarding a copy of Commission's order dated 26.02.2024 (copy enclosed for ready reference).
2. In this regard, it is informed that the records available in the Ethics section. National Medical Commission (NMC) have been searched It appears that no report from Head of Department of Medicine Dr. Richa Diwan of Mauiana Azad Medical College, New Delhi had been received by the erstwhile Medical Council of India at that time
3. It is therefore, requested that Director of Mauiana Azad Medical College. New Delhi may be approached for the requisite report.
This issues with the approval of the competent authority.
Yours faithfully,
Sd/-
21-5-24
Enclosure: As above.
(Purnima Tudu)
Deputy Secretary
Ethics & Medical Registration Board
Copy to: Mauiana Azad Medical College. 2. Bahadur Shah Zafar Marg. Near Delhi Gate Baimiki Bash. New Delhi 110002- With a request to furnish the requisite report to National Consumer Disputes Redressai Commission New Delhi in response to their letter dated 06.03.2024 (copy enclosed).
11. The enquiry made by this Commission form Mauiana Azad Medical College was awaited but ultimately vide a letter dated 12.06.2024 the Mauiana Azad Medical College intimated about the non-availability of the documents that was desired by this Commission. The letter from Mauiana Azad Medical College is extracted herein under:
Dated: 12.06.2024
To,
The Assistant Registrar
National Consumer Disputes Redressai Commission,
Under the Consumer Protection Act, 2019
Upbohkta Nyay Bhawan, "F-Block
General Pool Office Complex,
INA, New Delhi-110023
Subject: Medical report/Opinion in original Petition No. 47 of 2006 (in the matter of Sh. S. M. Jain Kf. Alok Mathur & Ors.).
Sir,
With reference to your office letter dated 25.04.2024 in the matter of Sh. S. M.Jain (complainant) Vs. Dr. Alok Mathur & Ors (petition No 47 of 2006), to inform you that the matter was discussed with Dr. Richa Diwan, the then Head of Medicine Department, She has informed that all the reports in such cases forwarded by her to Dean, MAMC for onward transmission to the concerned authorities. Since these matters were confidential in nature, she never kept any copies of these reports with herself. '
Further, it is humbly submitted that no such medical opinion/report the department of Medicine is available in the records of this office, since record/matter is quite old i.e. almost 18 years old.
This issues with the prior approval of Dean, MAMC.
End. as above.
Sd/-(Kamal Gautam)
Admn. Officer (co-ord.), MAMC
F.No.l/23/47/2006/MAMC/2024-25/
Dated:
Copy for information and necessary action to The Secretary, National Medical Commission, Pocket-14, Sector-8, Dwarka Phase-1, New Delhi-110077.
(Sd/-) (Kamal Gautam)
Admn. Officer (co-ord.), MAMC
12. After having perused the said letters the matter was once again taken up on 04.07.2,024 and the following Order was passed:
"Dated: 04 July2024
ORDER
Heard learned counsel for the parties and perused the tetter of the Ethics & Medical Registration Board and the National Medical Commission dated 21.05.2024. The said letter indicates that all records have been searched in the ethics section and no such report of Dr. Richa Diwan is available on the records of the erstwhile Medical Council of India. It has been further indicated that the request be made to the Director of Mauiana Azad Medical College for obtaining the said report. Accordingly, the Mauiana Azad Medical College was requisitioned for the said report and they have dispatched a letter on 12.06.2024, stating that Dr. Richa Diwan had been contacted and she informed that reports in such cases were forwarded by her to the Dean, Mauiana Azad Medical College for onward transmission to the concerned authorities. Since these were confidential matters in nature she did not retain any copy of the reports with herself. The Maulana Azad Medical College further reports that no such medical opinion or report from the department of medicine is available on the records of the office and it is not possible to retrieve it, as it is a 18 year old matter.
The sum and substance of the said reports therefore is that the recital contained in the order of the Medical Council of India about any expert opinion from Dr. Richa Diwan is not available.
The said exercise had been undertaken after passing the order on 26.02.2024, as the issue raised with regard to obtaining a fresh report was referred to a third Member on a difference of opinion between two Members, who had heard the matter earlier. The question as to whether a fresh report should be called for or not and whether the matter should be disposed off finally, learned counsel for all the parties submit that the case be now fixed for final hearing.
Since this is a referred matter on a difference of opinion and was nominated to the President as a third Member to hear the complaint, let it be listed at 2 p.m. on 22.11.2024 before me sitting singly."
13. The matter was finally heard on 03.07.2025 and the Order was reserved.
14. As indicated above, the matter has been referred to the Third Member in view of the difference of opinion regarding obtaining of an expert opinion as against the dismissal of the Complaint by one of the Learned Member. The matter was heard with the learned counsel Mr. Kohli advancing his submissions for the Complainants and responded to Mr. Malhotra, learned senior counsel for the Opposite Party who alleged that there is no case of any medical negligence without against the opposite party no.l. Mr. Subhash Kumar, Advocate has advanced his arguments on behalf of the Opposite Party No. 2 and 5 i.e. Sir Ganga Ram Hospital. He has cited the decision of Supreme Court in the case of 'Kandimala Raghavaiah & Co. Vs. National Insurance Co. Ltd. & Anr.', (2009) 7 Supreme Court Cases 768' and another decision of this Commission in the case of 'Bankim Mandal Vs. The Chief Administrator, HUDA, 2012 SCC OnLine NCDRC 84 and we have heard Mr. Paul, learned counsel for the Insurance Co. The Opposite Party No.3 stood deleted as he expired and the name of Opposite Party No.4-Dr. Saket Gupta was also deleted vide Order dated 04.07.2006. Thus, all the contesting parties were duly represented and heard.
15. As noted above this matter was listed before a third Member on account of the difference of opinion between the two Members who had earlier heard the matter, where one of the Hon'bie Members had dismissed the complaint and the other Hon'bie Member had opined that the case calls for an expert opinion.
16. The report of the Delhi Medical Council dated 20.05.2007 did not in any way indict Dr. Alok Mathur regarding the line of treatment. To the contrary the observation is that the treatment prescribed by him was covering the entire spectrum of the prevailing clinical situation. It was thereafter that the patient complained of breathlessness that Dr. K. P. Jain advised for hospitalization. In the wake of these observations, the Delhi Medical Council commented upon by saying that it was perturbed by the initial treatment provided to the patient as the same left much to be desired. It is not understood as to what the Delhi Medical Council expected more of the Doctor to have done and as to the shortfall in the medical assessment protocol. On the other hand the Delhi Medical Council observed that the prescription contains the treatment prescribed, but does not make mention of the diagnosis and therefore no medical negligence could be attributed. What can be gathered from the said opinion is that Dr. Alok Mathur could have treated the patient in a better way, but the question is can such an assessment lead to an inference of medical negligence.
17. We find that the entire matter was again examined on an appeal filed by the complainant before the Medical Council of India and the Ethics Committee of the Council found it necessary to receive the assistance of the Head of the Department of Medicine, Maulana Azad Medical College, New Delhi with his comments. Accordingly all the documents were sent to the Maulana Azad Medical College for an assessment.
18. It is at this stage we may point out that getting an expert opinion in respect of the allegations made was complied with by the Ethics Committee of the Medical Concil of India. The proceedings of the Ethics Committee categorically records the documents having been sent and a reminder to Dr. Richa Diwan, Professor and Head of Department Medicine, Maulana Azad Medical College, New Delhi for soliciting an expert opinion. Thereafter, the Ethics Committee took a decision confirming the final opinion of the Delhi Medical Council that no medical negligence could be attributed in the treatment of the patient with a direction to Dr. Alok Mathur to adopt the protocol of recording diagnosis while examining patients in future. Nonetheless, the finding of an absence of medical negligence in favour of Dr. Mathur was confirmed.
19. It is the incongruity noticed in the order of the Delhi Medical Council that gave rise to this reference and the matter was examined accordingly. As noted above the statement of Dr. Mathur before the Medical Council was not disbelieved and the line of treatment given by Dr. Mathur has been approved. The medicines which were prescribed were broad spectrum antibiotics that have been found to be in order. An attempt was made by this Commission to retrieve the original opinion received from Mauiana Azad Medical College by the Medical Council of India, but the letter dated 12.06.2024 received from the Mauiana Azad Medical College addressed to the Registrar of this Commission is to the effect that all reports in such cases were forwarded by Dr. Richa Diwan to the Dean and since such matters were confidential she did not keep any copies of the report with herself. It has been further observed that as of now no medical opinion is available in the record of the office as it is 18 year old matter. An attempt was also made to retrieve the report if available with the National Medical Commission (the successor of the Medical Council of India) from where also it was intimated that they were not in receipt of any such report.
20. What can be gathered from the two letters of the Medical Commission dated 21.05.2024 and the letter from Mauiana Azad Medical College dated 12.06.2024 is that the deliberations did take place but the copies of the said report were unavailable at the moment due to lapse of time. In the given circumstances even though we may not have had the benefit of viewing the said report, but the decision of the Medical Council of India, gives a reflection of the this consultative process with the Department of Medicine, Mauiana Azad Medical College, whereafter the Medical Council of India had confirmed that there was no medical negligence on the part of Dr. Alok Mathur.
21. In such circumstances when the expertise on the subject has been resorted to and the Delhi Medical Council as well as the Medical Council of India have both deliberated upon the same after taking into consideration the respective submissions of the Complainant and the explanation of the Doctor, what can be inferred is that Dr. Alok Mathur even though had prescribed the broad spectrum of medicine needed by the patient given the conditions reported by her, he had not recorded his diagnosis on the prescription. Mr. Malhotra, learned senior counsel for Dr. Alok Mathur submits that the prescription may not record the exact diagnosis, but given all the symptoms, the patient had been treated correctly with appropriate medication. We find force in the submission of Mr. Malhotra, learned senior counsel for the opposite party no. 1, who has raised this convincing argument and which appeals to us, namely that even if the diagnosis had not been recorded expressly, yet the symptoms had been noted and the prescribed treatment had been extended on the symptoms available with the correct medicines.
22. The precautions which doctors should take have been indicated in the case of Martin F. D'Souza v. Mohd. Ishfaq, (2009) 3 SCC 1, paragraphs 47 (b) and (c), extracted herein under:
"47. ....
(b) No prescription should ordinarily be given without actual examination. The tendency to give prescription over the telephone, except in an acute emergency, should be avoided.
(c) A doctor should not merely go by the version of the patient regarding his symptoms, but should also make his own analysis including tests and investigations where necessary."
23. It was pointed out during the course of submissions that Dr. Alok Mathur was the family physician of the complainants and was attending to the family of the complainants since long. It therefore cannot be presumed that Dr. Mathur had acted negligently by prescribing the medicines without examining the patient. Thus, the absence of recording of the diagnosis perse cannot said to be an act of gross negligence, when the medicines prescribed were found to be appropriate. The transcribing of the prescription with the appropriate medicine was not a robotic or mechanical and it would be reasonable to presume that the medicines had been prescribed looking to the symptoms of the patient. The Doctor therefore appears to have acted reasonably which the complainants allege was not error free. It is also not the case that the Dr. Mathur was not qualified to prescribe these medicines.
24. What appears is that the patient's condition deteriorated thereafter and instead of consulting Dr. Alok Mathur, Dr. Jain had been consulted who advised, immediate hospitalization. The same was immediately resorted to and the patient was hospitalized in Sir Ganga Ram Hospital. .
25. In such circumstances it is difficult to deduce medical negligence against the opposite party no. 1. The reason is not far to see and that is the administration of the correct medicines at that moment which could not be disputed by the learned counsel for the complainants.
26. Coming to the treatment given to the patient at Sir Ganga Ram Hospital. The Hospital sheets, and the treatment extended stepwise, has been recorded and the statement of Dr. Pankaj Aggarwal and the affidavit of evidence of Dr. Neeraj Jain as well as the statements of Dr. Sumit Ray and Dr. Nalini Kaul have been recorded. It is stated that the reference by Dr. K.P. Jain to the Hospital was made, whereupon the patient was admitted under Dr. Pankaj Aggarwal as well as Dr. K. P. Jain at Sir Ganga Ram Hospital, the Disease had progressed rapidly at that time and her condition was critical. In accordance with the medical protocol, intravenous dopamine and antibiotics were administered. Infection had already occurred prior to the admission in the Hospital. It was a severe case of the pneumonia of the right lung and all possible antibiotics including injection Zosym, Targocid and Amikacin were administered. The haematological investigations, the culture and the sensitivity tests of the blood and sputum were carried out, but the patient suffered shock and renal insufficiency which are the common complications of pneumonia and respiratory failure, as a result whereof she could not survive. All possible management was carried out, but she suffered a cardiac arrest on 28.08.2023 and expired. The aforesaid material available on record is also supplemented by the arguments advanced on behalf of the learned counsel for Sir Ganga Ram Hospital, who has also cited standard medical text books along with his written arguments.
27. The contention of the complainant was that simple investigation including platelet count, clotting times and bone marrow study had not been carried out. It is urged that the Hospital did not supply the complete documents.
28. Having examined the facts I am of the opinion, that Dr. Alok Mathur had prescribed appropriate medicines even if he had not recorded his diagnosis. The fever of the patient did persist and she developed breathlessness, whereupon she was admitted at the Sir Ganga Ram Hospital, where once again all possible treatment in respect of symptoms diagnosed were undertaken. I do not find any infirmity or negligence and also find that the Medical Council has deliberated upon the issue and arrived at a correct conclusion.
29. It is true that the report of the Medical Council of India is not a final opinion, but at the same time the Apex Court in the case of Harnek Singh v. Gurmit Singh, (2022) 7SCC 685, has held that the opinion of the medical council has to be given due weight. Reference be had to paragraph 37, which is extracted herein under:
"34. So far as present proceedings are concerned, as they arise out of a claim for compensation on the basis of medical negligence, the opinion and findings of MCI regarding the professional conduct of Respondent 1 have great relevance. The findings of the Medical Council, which is a statutory regulator have been extracted hereinabove, may be formulated as under:"
30. Thus cumulatively there being no error in the prescription of medicines by the opposite party no. 1, Dr. Alok Mathur and there being no error of treatment established, much less negligence on the part of the Sir Ganga Ram Hospital, the opposite party nos. 2 and 5.1 do not find this to be a case of medical negligence.
31. For all the reasons given hereinabove, I would agree with the opinion of the learned Member (Hon'ble Dr. S. M. Kantikar) and would dismiss the complaint as no case of medical negligence is made out. The complaint is accordingly dismissed.
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