AVM Jonnalagadda Rajendra, AVSM, VSM (Retd), Presiding Member

This Revision Petition has been filed under Section 21(1)(b) of the Consumer Protection Act, 1986 (the "Act") against Order dated 22.10.2019, passed by the State Consumer Disputes Redressal Commission, Haryana ('State Commission') in First Appeal No. 639 of 2019. In the impugned Order, the State Commission dismissed the appeal of the Petitioner/Appellant while upholding the decision of the District Consumer Disputes Redressal Forum, Bhiwani ('District Forum') dated 18.06.2019 in CC No. 244/2015.

2. For convenience, the parties are referred to as placed in the original Complaint filed before the District Forum.

3. Brief facts of the case, as per the Complainant, are that when she was on the family way, she was taking treatment from OP-1, Dr. Anita Panwar, and used to visit her hospital for regular check-ups. The OPs gave assurance of a normal delivery to the Complainant, and she paid Rs. 10,000/- in cash as advance to the OPs. At the time of delivery, the OPs informed her that the baby was not normal, and therefore a caesarean delivery was necessary. After the surgical procedure, the baby was found to be abnormal and unconscious. When the Complainant asked the doctor what had happened to her baby, the doctor misbehaved with the Complainant and said, "I don't know what happened and all of your destiny." Thereafter, the Complainant and her husband rushed to Delhi for treatment, but all in vain. The OPs failed to maintain the due standard of care, for which the Complainant suffered damages. Hence, the Complainant filed a complaint before the District Forum.

4. The OPs filed their written version contending that the Complainant had not visited the Nursing Home for regular check-ups and that the medical advice given to her was based on the available investigation reports. It was further pleaded that a caesarean section was performed as the mother was diagnosed with cervical dystocia, and any further attempt at normal delivery would have endangered the lives of both the mother and the baby. After delivery, the baby was fully conscious but exhibited signs of respiratory distress, for which he was admitted to the Neonatal Intensive Care Unit of the hospital under the care of the in-house Neonatologist. Subsequently, the baby was discharged against medical advice and was shifted, at the insistence of the Complainant's relatives, to a hospital of their choice in New Delhi, in a properly equipped transport facility under the supervision of a Neonatologist. OPs asserted that there was no deficiency in service or negligence on their part and, thus sought complaint to be dismissed.

5. The District Forum vide Order dated 18.06.2019, partly allowed the complaint with the following finding:

                   "i) The OP No. 3 to pay lump sum Rs. 1,75,000/- being cost of treatment alongwith interest @ 9% per annum from the date of filing of complaint till its final realization.

                   ii) The OP No.3 further to pay Rs.25,000/- as compensation on account of mental agony, physical harassment and hardship due to deficiency in service and mal trade practice on the part of Ops.

                   iii) The OPs No.1 & 2 to pay Rs.1,00,000/- as punitive damages for mal trade practice.

                   iv) The OPs No.1 & 2 further to pay Rs.10,000/- as counsel fee as well as the litigation charges."

6. Being aggrieved by the District Forum Order, the OPs filed Appeal No. 639 of 2019 and the State Commission vide Order dated 22.10.2019 dismissed the Appeal with the following observations:

                   "4. After hearing learned counsel for the appellants and perusing the record, this Commission finds that the complainant was operated by the appellants and gave birth to a male child. The complainant had cervical dystocia. The baby was discharged by the appellants in a very serious condition. The appellants did not take care of the baby due to which the complainant and her relatives were forced to shift the baby to some other hospital. The appellants nowhere pleaded that the condition of the baby was stable. The appellants did not lead any evidence to prove that the baby was conscious at the time of delivery. Medical profession is meant to serve the sufferers, wounded and sick and not to do their duty negligently. Usually there is a tendency of the private hospitals to extract money from the sufferers by taking advantage of the emergency situations. The exorbitant price of Rs.30,000/- was charged for ambulance to shift the complainant's child from Bhiwani to Delhi is a testimony to this kind of attitude of private hospitals where medical care is business more than service to the people in trouble on account of health issues. Thus, it is proved that the appellants were negligent in performing their duties.

In view of the above, no case is made out for any interference the impugned order passed by the learned District Forum. The appeal is without any merit and therefore dismissed."

7. Dissatisfied by the Order of the State Commission, OPs filed the present Revision Petition praying as follows:

                   "It is, therefore, prayed that the present Revision Petition be allowed with costs and the impugned order dated 22.10.2019 passed by Ld. State Consumer Dispute Redressal Commission Haryana in first appeal no.639 of 2019, and the order dated 18.06.2019 passed by Ld. District Consumer Dispute Redressal Forum, Bhiwani, be set aside in the present circumstances and in the interest of justice."

8. The Ld. counsel for OP-1 and 2 reiterated the submissions made in the written statement and contended that the State Commission failed to appreciate that there was no evidence to establish any medical negligence on the part of OPs. It was argued that the Expert Medical Board Report dated 27.10.2020 from AIIMS categorically recorded that the pregnancy management was as per accepted medical practice. It was contended that the child was diagnosed with Edward's Syndrome (Trisomy 18), a chromosomal disorder resulting from an extra chromosome in the 18th pair, which is a congenital defect unrelated to medical management. The mother was 24 years of age, with no prior history of congenital abnormality, and thus there was no reason to suspect any such malformation. It was contended that a Triple Screen Test conducted on 07.10.2014, specific for detecting chromosomal abnormalities such as the one found in this case, had shown a negative result. As per standard medical literature, the test had a detection rate of about 65%, and considering the negative result along with the mother's young age of 24 years, there had been no medical basis to suspect any foetal abnormality. The Ld. counsel further argued that, as per the clinic's protocol, all patients were advised to undergo a Foetal Anomaly Scan (Level-II Ultrasound) between 20 to 22 weeks of pregnancy, and the same had been duly advised to the Complainant on 13.11.2014 at five months of gestation. However, she failed to comply with this medical advice. It was urged that the Complainant was repeatedly advised, both verbally and in writing, to undergo the anomaly scan during her subsequent visits. Despite this, she did not comply, and only two routine ultrasounds were conducted on 20.10.2014 and 11.02.2015, for foetal wellbeing and growth monitoring, both clearly noting that routine scans could not rule out congenital malformations. The Ld. counsel further pointed out that Level-II ultrasounds were expensive, costing between Rs. 5,000/- and Rs. 7,000/-, and at the relevant time, no such facility was available in Bhiwani, requiring patients to travel to Rohtak. Even otherwise, many patients declined the test due to financial constraints. Hence, the OPs could not be held responsible for the Complainant's failure to undergo the advised scan. It was argued that the child was discharged from the OP's clinic against medical advice at the insistence of the relatives, and hence, negligence could not be attributed to the OPs. The lower fora erred in overlooking this material fact and in accepting the Complainant's version without examining the documentary evidence or medical board findings. The Ld. counsel further contended that the State Commission had wrongly concluded that the OPs arranged and overcharged for the ambulance, whereas it was arranged for and paid for directly by the Complainant's relatives, with no involvement of the OPs. The OPs' clinic was duly insured and therefore, no individual liability could have been fastened on the OPs. The Ld. Counsel for OP- 1 and 2 prayed that the Revision Petition be allowed and the impugned orders be set aside.

9. The Ld. counsel for the Complainant argued that she was under continuous observation and treatment of the OPs during her first pregnancy. It was due to OPs negligent conduct, she suffered irreparable mental agony and emotional trauma. It was submitted that the OPs attempted to set up an entirely new case by raising the plea of non-compliance with medical advice regarding Level-II Ultrasound, an issue never raised or adjudicated before the Ld. District Forum or the Ld. State Commission and such a fresh factual plea, not forming part of the earlier record, could not be entertained at revision stage. It was contended that no question of law arose, the present Revision Petition is liable to be dismissed. It was further contended that all three ingredients of medical negligence stood proved. The OPs, owed a higher duty of care but failed to exercise the requisite degree of skill and diligence as required under the Bolam Test. Though three sonographies were conducted, including the crucial 18th week ultrasound, the OPs failed to detect congenital anomalies which could and should have been identified with reasonable competence, resulting in irreparable emotional loss to the Complainant. It was further argued that the allegation of non-compliance was wholly misconceived. The advice for Level-II Ultrasound was never properly explained, and the OPs failed to reiterate or emphasize its significance to her, thereby breaching duty of care. Reliance was placed on the Medical Board Report dated 21.10.2020, which stated that the advice for a Level-II ultrasound to detect anomalies was not reiterated, and this omission could have averted the mishap. This clearly showed that the OPs failed to emphasize the importance of this crucial diagnostic step. Further, it was contended that FA No. 639 of 2019 filed by OPs against the order dated 18.06.2019, was dismissed on 22.10.2019 without notice to the Complainant, thereby affirming the findings of negligence. It was prayed that the Revision Petition be dismissed.

10. The Ld. counsel for OP-3 submitted that OP 3, being merely the insurer of "Panwar Maternity and Children's Hospital" under "Doctor's Indemnity Policy," and had no independent role in the alleged negligence. It was contended that both the Fora below failed to appreciate that the treating doctor had duly advised her "Level-II Ultrasound" at 22 weeks of pregnancy, which she failed to undergo, and that the said test could have detected the congenital deformities in time. Pursuant to this Commission's direction, AIIMS constituted a Medical Board which, in its report dated 27.10.2020, observed that compliance with the Level-II ultrasound was not reiterated, but overall management of pregnancy was as per accepted medical practice. Hence, there was no negligence or deficiency in service attributable to the OPs, and the impugned orders of the District Forum and the State Commission were liable to be set aside.

11. It is an admitted position that the Complainant was under the care of OP-1, Dr. Anita Panwar, during her pregnancy and had visited the OPs' clinic for antenatal check-ups. It is also undisputed that a caesarean section was performed by the OPs due to cervical dystocia, and that the baby was found to be suffering from congenital abnormalities diagnosed later as Edward's Syndrome (Trisomy 18). The record further shows that the Complainant and her husband subsequently shifted the child to a Delhi hospital for further management. The Complainant alleged that the OPs failed to exercise due care during the pregnancy and delivery, resulting in the birth of an abnormal child and consequent mental agony. She contended that the OPs failed to reiterate the need for a Level-II Anomaly Ultrasound, which, if done, could have detected foetal abnormalities in time and they could have hap opportunity to take decision in time. Conversely, the OPs contended that the Complainant was irregular in her checkups and had failed to comply with the advised anomaly scan, despite repeated verbal and written advice. They maintained that all treatment was given as per standard medical practice, and that the congenital disorder was a chromosomal defect not attributable to medical negligence. The child had been discharged against medical advice at the insistence of the Complainant's relatives.

12. In light of the pleadings and submissions advanced by the parties, the main issue for consideration is whether the OPs failed to exercise the requisite standard of medical care in the management of the Complainant's pregnancy and delivery, thereby amounting to medical negligence warranting interference with the concurrent findings of the Fora below?

13. The term "negligence" has been defined in Halsbury Laws of England (Fourth Edition) para 34 and as settled in Kusum Sharma and Others v. Batra Hospital and Medical Research Centre and Others, (2010) 3 SCC 480 as under:

                   "45. According to Halsbury's Laws of England, 4th Edn., Vol. 26 pp. 17-18, the definition of negligence is as under:

                   "22. Negligence.

                   -Duties owed to patient. A person who holds himself out as ready to give medical advice or treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person, whether he is a registered medical practitioner or not, who is consulted by a patient, owes him certain duties, namely, a duty of care in deciding whether to undertake the case; a duty of care in deciding what treatment to give; and a duty of care in his administration of that treatment. A breach of any of these duties will support an action for negligence by the patient."

14. In Jacob Mathew vs. State of Punjab, (2005) 6 SCC 1, decided on 05.08.2005, Hon'ble Supreme Court while laying down the elements of medical negligence observed that:

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

15. It is well settled that a doctor cannot be held negligent merely because a patient suffered an unfortunate outcome. What has to be established is that the doctor acted in a manner no prudent medical professional would have, given the circumstances. Further, it is well settled that in medical negligence cases, expert evidence plays a crucial role in determining whether the standard of care expected from a reasonably competent medical professional has been breached as was held by the Hon'ble Supreme Court in SK Jhunjhunwala v. Dhanwanti Kau & Anr., (2019) 2 SCC 282, decided on 01.10.2018. Similarly, the Hon'ble Apex Court in Martin F. D' Souza vs. Mohd. Ishfaq, IR 2009 SUPREME COURT 2049, observed as follows:

                   "123. The courts and Consumer Fora are not experts in medical science, and must not substitute their own views over that of specialists. It is true that the medical profession has to an extent become commercialized and there are many doctors who depart from their Hippocratic oath for their selfish ends of making money. However, the entire medical fraternity cannot be blamed or branded as lacking in integrity or competence just because of some bad apples."

16. The Hon'ble Supreme Court further reiterated these principles in Neeraj Sood & Anr. v. Jaswinder Singh (Minor) & Anr., 2024 LiveLaw (SC) 863, decided on 25.10.2024, held that:

                   "13. The said finding is based on no evidence insofar as the complainants have not adduced any evidence to prove any negligence on part of the doctor rather have relied upon the medical records produced by the PGI. The said records merely demonstrate that post-surgery the condition of the patient had not improved but has deteriorated which as stated earlier may not be indicative of the negligence in the treatment of the patient.

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

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

                   16. When reasonable care, expected of the medical professional, is extended or rendered to the patient unless contrary is proved, it would not be a case for actionable negligence. In a celebrated and very often cited decision in Bolam v. Friern Hospital Management Committee (Queen's Bench Division), it was observed that a doctor is not negligent if he is acting in accordance with the acceptable norms of practice unless there is evidence of a medical body of skilled persons in the field opining that the accepted principles/procedure were not followed. The test so laid down popularly came to be known as Bolam's test and stands approved by the Supreme Court in Jacob Mathews v. State of Punjab and Another. If we apply the same in the present case, we would find that Dr. Neeraj Sood was a competent and a skilled doctor possessing requisite qualification to perform PTOSIS surgery and to administer the requisite treatment and that he had followed the accepted mode of practice in performing the surgery and that there was no material to establish any overt act or omission to prove negligence on his part. As stated earlier, no evidence was adduced to prove that he had not exercised sufficient care or has failed to exercise due skill in performing the surgery. "

17. Evidently, the lower Fora have not relied on any expert opinion while making their decision. Applying the above principles in handling such cases, this Commission vide its order dated 12.03.2020, had directed the Registry to send the medical records of the complainant to the Director, AIIMS, and sought an expert medical opinion on whether or not there was any medical negligence or carelessness on the part of the OPs. Consequently, the Medical Board constituted at AIIMS, in its report dated 27.10.2020, observed as under:

                   "Overall management of the pregnancy seems to be according to the accepted practice. However, as per the available documents, it seems that the compliance to the advice of level-2 ultrasound for anomalies was not reiterated, which could have averted this mishap."

18. The above report makes it clear that, except for non-reiteration of the anomaly scan advice, the overall medical management adhered to accepted medical norms. The Board did not find any act of omission or commission amounting to negligence in the treatment or delivery. The record further demonstrates that the Complainant was advised routine sonographies. The documentation on record shows that two routine ultrasounds were performed on 20.10.2014 and 11.02.2015, both clearly stating that congenital anomalies could not be ruled out through basic scans implying that a Foetal Anomaly Scan (Level-II Ultrasound) was necessary for anomaly detection, which was advised to the Complainant on 13.11.2014 at five months of gestation, however, she had failed to comply with this medical advice. A patient who fails to follow the medical advice or prescribed diagnostic procedures cannot subsequently allege negligence against the treating doctor for consequences arising therefrom. Once the treating doctor has discharged their duty by advising an appropriate test or procedure, the responsibility to act upon such advice rests with the patient. In the present case, the Complainant admittedly did not undergo the Level-II ultrasound despite being advised to do so, and therefore, she cannot shift the burden of that omission onto the OPs.

19. After due consideration of the entire facts and circumstances of the case, including the evidence and expert findings, we are of the view that the OPs had complied with the requisite standards of care expected of a competent medical practitioner. There is no material to show that the OPs deviated from standard medical procedure or failed in their duty of care. The unfortunate outcome in the present case cannot by itself be a ground to impute negligence. The Expert Medical Board also reveals that OPs were not negligent in the management of the Complainant's pregnancy or delivery. The standard of care was duly maintained in accordance with accepted medical practices. Therefore, the impugned orders of the learned District Forum dated 18.06.2019 and the learned State Commission dated 22.10.2019 are set aside, the Revision Petition No. 22 of 2020 is allowed and the complaint stands dismissed.

20. All pending Applications, if any, are also disposed of accordingly.

21. There shall be no order as to costs.