Avm Jonnalagadda Rajendra, Avsm, Vsm (Retd) Presiding Member

The present Consumer Complaint has been filed under Section 21 of the Consumer Protection Act, 1986 (for short "the Act") against the Opposite Parties with the following prayer:

                   A. Allow the original complaint for medical negligence against the respondent parties, and;

                   B. The OPs be directed to make payment of the amount to the tune of Rs. 1,12,00,000 to the complainant along with the interest @ 18 % p.a. from the date of death of complainant's daughter till the realization of compensation, and;

                   C. The OPs be directed to pay cost of litigation, and;

                   D. Pass such other or further order/orders or direction/ directions as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case."

2. Brief facts, as per the Complainant, are that the deceased who was 21 years of age was diagnosed with a benign left breast lump (fibroadenoma) for which she was admitted on 01.02.2017, for surgical excision under general anaesthesia. Fibroadenoma is a non-cancerous condition, and surgery is ordinarily a minor procedure. Dr. Divyesh Chaudhary, OP-3 performed excision using a syringe to aspirate fluid, with an endotracheal tube inserted to maintain oxygen supply. During the surgical procedure, frothy secretions appeared in the tube due to lung collapse (pneumothorax), a complication that was neither anticipated as necessary nor promptly managed. It is the case of the complainant that in situations like pneumothorax, standard medical protocol mandates immediate intervention, such as chest tube insertion. However, in the present case, delay and omission in implementing lifesaving measures led to tension pneumothorax and pulmonary edema, ultimately resulting in cardio-respiratory arrest. Autopsy reports confirmed that death of the girl had occurred due to pulmonary embolism/pulmonary edema, directly linking it to failure in following standard medical protocol. OPs failed to adhere to established protocols and provide timely remedial measures constituted negligence and deficiency in service by the OPs. Hence, the present complaint.

3. On notice, OPs resisted the complaint by filing the written version contending that the deceased was diagnosed with fibroadenoma of the left breast and was admitted on 01.02.2017 for surgical excision and biopsy under general anaesthesia and they strictly followed all medical protocols. Fibroadenoma was a benign tumour commonly seen in adolescent girls, and she had been under follow-up for five months prior to the surgery. The procedure was superficial and penetration of chest wall was not possible. Spontaneous pneumothorax could occur in this age group. During surgery, an endotracheal tube was inserted for general anaesthesia. When frothy secretions were noticed and oxygen saturation fell, the anaesthesiologist immediately initiated suction and resuscitation. The physician was consulted, and she was shifted to ICU. A chest X-ray revealed left-sided pneumothorax, and an intercostal drainage (ICD) tube was promptly inserted and she was kept on ventilator support. Despite all life-saving measures, she succumbed on 03.02.2017. The post-mortem was also conducted as per procedure. OPs contended that the risks of the procedure were explained to the relatives in vernacular language, and informed consent was obtained for surgery, anaesthesia and ICD insertion. OP-3 is qualified physician and competent to perform the surgery with reasonable skill, and all necessary interventions like, physician consultation, ICU care, and ventilator support were promptly provided. The death had not occurred due to medical negligence. All safeguards and institutional protocols were followed, and required remedial measures were immediately taken. In any case, she is not a consumer since no consideration was paid by the Complainant. They sought the complaint to be dismissed.

4. The Complainant had filed rejoinder to the Written Statement filed by the Opposite Parties and reiterated the facts of the complaint.

5. The Complainant filed his evidence on Affidavit and relied on medical jurisprudence related to "Fibroadenoma" (Exhibit CW/1), "Endotracheal tube" (Exhibit CW/2), "Inter-coastal drainage or chest tube" (Exhibit CW/3), "Pneumothorax" (Exhibit CW/4) and "Pulmonary Edema" (Exhibit CW-CW/5) and education certificates of the deceased Sanjana Ramchandra Yadav (Exhibit -CW/6), chest X-ray report of the deceased dated 26.12.2016 (Exhibit CW/7), letter dated 06.02.2017 along with the entire medical record (Exhibit-CW/8), application dated 05.07.2017 (Exhibit-CW/9), RTI dated 08.09.2017 (Exhibit CW/10), reply dated 06.10.2017 (Exhibit CW/11), reply to RTI Application dated 12.10.2017 (Exhibit CW/12), and order of District Forum, Silvassa dated 05.06.2018 (Exhibit- CW/13).

6. The OPs filed evidence on Affidavit and relied on the authorization letters issued by Respondent No.1 & 2 (Exhibit R/W- 1/1), translated copy of the surgery consent and anaesthesia consent Form (Exhibit R/W-1/2) and true typed copy of the Consent Form (Exhibit R/W-1/3).

7. The learned counsel for the Complainant reiterated the facts of the case and argued that the untimely death of the deceased was due to gross medical negligence and deficiency in service by the OPs. He asserted that the medical records established the negligent conduct of OP-3, Dr. Divyesh Chaudhary, who performed a minor surgery for excision of a non-cancerous Fibroadenoma, a condition which could at the best pose a very minimal risk to life. The learned counsel asserted that the death could have been avoided had the OPs exercised due care and followed established medical protocols. The complication of Pneumothorax during surgery was neither anticipated nor managed. The appearance of frothy secretions in the Endotracheal Tube at 2.05 PM indicated a lung collapse requiring immediate Chest Tube Insertion. Yet the procedure was negligently delayed until 4.30 PM, which was rendered fatal. The absence of requisite emergency setup for to manage Pneumothorax reflected disregard of medical standards. He asserted that the post-mortem confirmed that both lungs had collapsed, and the cause of death was "Respiratory Arrest" due to "Pseudo Pulmonary Oedema," which is consistent with the negligent delay in treatment. All elements of negligence stood proved, as the OPs failed to act promptly and provide the required standard of care. He further argued that the OPs breached their fundamental duty of care by failing to ensure that all requisite emergency arrangements, life-support systems and equipment were available prior to commencing the surgical procedure. The conduct of OPs squarely fell within the ambit of "deficiency in service" as they failed to exercise the reasonable care, skill and diligence expected of medical professionals. It was their duty to ensure that all emergency and life-support systems were available and functional prior to commencement of the surgery, yet the record revealed that no such preparation existed. The complainant was a consumer since there was gross medical negligence on the part of OP hospital where she was admitted and treated for mere removal of a superficial cyst and it resulted in her death on the same day. He asserted that the unacceptable failures of OPs in ensuring requisite lifesaving arrangements are manifest. The untimely death of the complainant's daughter caused irreparable loss to the family, and her potential lifetime earnings of Rs. 1,68,00,000 justified compensation of Rs.1,12,00,000. He asserted that the OPs be held jointly and severally liable for gross medical negligence. He relied on the order of Hon'ble Supreme Court in CA No.7175 of 2021 dated 26.09.2023 in Ashish Kumar Chauhan Vs Commanding Officer & Ors.

8. On the other hand, the learned Counsel for the OPs reiterated the facts mentioned in their written statement and argued that the preoperative evaluation of the patient was duly conducted by the attending physician and the patient was taken to the Operation Theatre on 02.02.2017, with all requisite consents including general admission, surgery and anaesthesia were obtained from the relatives of the patient. He asserted that the general anaesthesia was administered at 12:45 PM and the excision biopsy was performed. The patient unfortunately went into cardiac arrest at 1:45 PM, after which emergency measures were promptly undertaken. The patient was resuscitated and shifted to ICU at 3:15 PM, where a chest X-ray revealed left-sided pneumothorax, necessitating immediate intervention with intercostal drainage, which was performed after obtaining informed consent from the relatives. Despite continued ventilator support, the patient could not be revived and was declared deceased at 1:45 AM on 03.02.2017. Thereafter, an autopsy was conducted. They contended that the deceased was under the continuous care of qualified doctors, with timely interventions, consultations from various specialist and super-specialist doctors, and proper regulation of medicines and treatment. He asserted that OP-2 is a Government Hospital, operated on principles of welfare and did not provide services to the patient for remuneration. He asserted that no payment was made by the Complainant or her relatives to the hospital. Therefore, the deceased could not be regarded as a consumer under Section 2(1)(d) of the Act. He argued that, even assuming a scenario of any nominal payment, such payment could not be linked to the services provided and did not create a consumer relationship. The Complainant failed to adduce any expert evidence to establish medical negligence against OP-3 or any other medical staff. Relying solely on affidavits, which were insufficient to discharge the onus of proving negligence. Mere adverse outcomes or failure of treatment could not automatically imply negligence, and that the standards of care exercised by the doctors and hospital staff met the expectations of medical profession. He argued that a medical professional could not be held liable merely because alternative treatment might have been more successful or because the patient succumbed despite appropriate care. The doctrine of res ipsa loquitur had limited applicability and could not be invoked solely based on the patient's demise. In any case, OP-2, is a Govt Hospital, and did not charge the complainant any remuneration for the services rendered. She is not a consumer since no consideration was paid by the Complainant. The compensation was also exaggerated. He relied on Bombay Hospital & Medical Research Centre v. Asha Jaiswal & Ors., Civil Appeal No. 1658 of 2010; Indian Medical Association v. VP Shantha & Ors (1995)6 SCC 65; Nivedita Singh v Dr Asha Bharti & Ors; Jacob Mathew v. State of Punjab, (2005) 6 SCC 1; Dr. Harish Kumar Khurana v. Joginder Singh & Ors (2021 SCC Online SC 673); Martin FD 'Souza v. Mohd Ishfaq, (2009) 3 SCC 1; Dr. Laxman Balkrishna Joshi v. Dr. Trimbak Bapu Godbole, 1969 AIR 128; Achutrao Haribhau Khodwa v State of Maharashtra 1996 SCC(2)634; Vinod Jain v Santokba Durlabhji Memorial Hospital, AIR 2019 SC 1143; and Arun Kumar Manglik v. Chirayu Health&Medicare Pvt Ltd & Anr (2019)7 SCC 401

9. We have examined the pleadings and associated documents placed on record and rendered thoughtful consideration to the arguments advanced by the learned counsels for both the parties. The primary issue to be determined before considering the case on merits is the maintainability of the present complaint i.e. whether the deceased can be regarded as a 'consumer' under Section 2(1)(d) of the Consumer Protection Act, 1986, particularly in view of OP-2 being a Government Hospital, and no remuneration was paid for the services?

10. It is an admitted position between the parties that the deceased, aged 21 years, was diagnosed with fibroadenoma of the left breast and admitted to the hospital operated by the OPs on 01.02.2017 for surgical excision under general anaesthesia. The deceased had undergone the pre-operative evaluations, found fit and all requisite consents for admission, surgery, and anaesthesia were obtained from her relatives. It is also an admitted position that the deceased was under continuous medical care during the hospitalization and that the unfortunate demise occurred despite medical interventions, following post-operative complications. OP-2, being a Government Hospital, did not charge the complainant any remuneration for the services rendered.

11. The primary contention of the Complainant with respect to the maintainability is that the deceased received medical services from the OPs and, therefore, she should be regarded as a Consumer' under Section 2(1)(d) of the Act, 1986, entitling the complainant to seek compensation for alleged deficiency in service. On the other hand, the OPs contended that no consideration whatsoever was paid by the deceased for the services provided, and OP-2 being a Government Hospital rendered its services under a welfare scheme. Consequently, no consumer relationship was established. It was further contended by the OPs that even if a nominal fee were assumed, such payment could not be directly linked to the medical services provided so as to invoke the jurisdiction of this Commission under the Act.

12. It is a settled position of law that where no payment is made for medical services, ordinarily, a consumer relationship under Section 2(1)(d) of the Act, 1986 does not arise, and a complaint under the Consumer Protection Law would not be maintainable. However, while even charitable or welfare hospitals can be held liable under the Act, if they receive remuneration from some sections of patients. This point was reiterated by the Hon'ble Apex Court in Union of India vs. NK Srivasta, CA No 2823 of 2020, decided on 23.07.2020, wherein the Apex Court relied on its landmark judgment in Indian Medical Association vs V.P. Shantha & Ors, 1995 SCC (6) 651 and observed:

                   "9 While evaluating the submission which has been urged by Mr R S Suri, it is necessary, at the outset, to have regard to the principles which have been laid down in the judgment of this Court in Indian Medical Association. In the judgment of this Court, the provisions of Section 2(1) (o) of the Act fell for interpretation. Section 2(1)(o) provides as follows:

                   ""service" means service of any description which is made available to the potential users and includes the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, [housing construction], entertainment, amusement or the purveying of news or other information, but does not include rendering of any service free of charge or under a contract of personal service;"

                   10 Interpreting the above provision, a three judge Bench of this Court held that it is only where a hospital provides medical services free of charge across the board to all patients that it would stand outside the purview of the Act. The Court held that a hospital which renders free services to a certain category of patients, while providing for services which are charged to the bulk of others would not lie outside the purview of the jurisdiction of the consumer fora. This principle is evident from the following extract from the decision of this Court:

                   "43...The third category of doctors and hospitals do provide free service to some of the patients belonging to the poor class but the bulk of the service is rendered to the patients on payment basis. The expenses incurred for providing free service are met out of the income from the service rendered to the paying patients. The service rendered by such doctor and hospitals to paying patients undoubtedly fall within the ambit of Section 2(1) (o) of the Act."

13. Now, in order to bring the OP Hospital within the ambit of the Consumer Protection Act, 1986, the onus is initially squarely upon the Complainant to demonstrate that the OP hospital, though a Government Hospital, was charging remuneration from other sections of patients for similar services. Had such evidence been produced, the hospital could have been treated as rendering "service" within the meaning of the Act, as held by the Hon'ble Supreme Court in Indian Medical Association v. V.P. Shantha & Ors., (1995) 6 SCC 651. However, the Complainant has not placed any material or evidence on record to show that the OP hospital was charging any fees from others, thereby failing to establish that it was rendering service on a remunerative basis.

14. In the present case, the primary burden is upon the Complainant to establish the existence of a consumer-service provider relationship of the Complainants with the OPs. As is evident from the material placed on record, there is no receipt, bill, or any documentary evidence whatsoever has been filed to show that any fees was charged by the OP hospital for the treatment of the deceased. The Complainant has also not been able to produce even a registration slip reflecting payment of nominal fee. It is not even the contention of the Complainant that the Hospital in question is such which charges fees from other patients. Thus, clearly, the Complainant failed to prove to be a "consumer" of the OPs in the ordinary course of circumstances. The contention of OPs that the OP Hospital was a Government hospital providing treatment all patients who approach it free of any charges, therefore, has merit.

15. We would also like to discuss the judgment of Ashish Kumar Chauhan v. Commanding Officer & Ors., Civil Appeal No. 7175 of 2023, decided on 26.09.2023 which was also relied upon by the Complainant. In the said case, the issue of maintainability arose when the OPs contended that the Complainant could not be treated as a consumer since the Indian Air Force and Army Hospitals did not fall within the ambit of the Consumer Protection Act, 1986, as all Armed Forces personnel, by virtue of their service obligations, were required to undergo periodic and mandatory medical examinations to ensure fitness. Therefore, it was argued that such hospitals and medical facilities functioning under Army or IAF Rules and Regulations could not be considered as rendering "services" under the Consumer Protection Act. The Hon'ble Supreme Court, however, rejected this contention and held the OPs to be liable, observing that the facilities provided under the scheme could not be excluded from the definition of "service," nor could it be claimed that the benefits under the scheme were being provided free of charge to the complainant. The Court further held that the definition of "consumer" under the Act included not only those who hired or availed services for consideration but also the beneficiaries for whose benefit such services were hired. It was also observed that even if Administrative charges were paid by the Central Government and not directly by the employee, the services of the Provident Fund Commissioner in running the scheme would still be deemed to have been availed of for consideration by the Government for the benefit of employees, who would be treated as beneficiaries and thus fall within the meaning of "consumer" under the Act. However, for the present factual matrix it is not applicable. In the above case, the services rendered by the Complainant were treated as consideration for the benefits extended under the scheme, thereby bringing the OP within the ambit of the Consumer Protection Act. In this case, as discussed above, no consideration whatsoever has been paid by her and there is no association/relationship of any sort between the parties even otherwise. Therefore, the said case does not apply to the Complainant's case.

16. Upon careful examination of the pleadings, evidence, and arguments advanced by both parties, it is evident that the Complainant failed to discharge the burden of proving the existence of a consumer and service provider relationship between the deceased and the OPs. There is no evidence of any payment or consideration that has been made by the deceased or her relatives for the services rendered by OP-2. In the absence of any proof of payment or other material establishing existence of a consumer - service provider relationship between the parties, we find no valid consumer association that existed between the said parties.

17. While the incident is no doubt very unfortunate, where a young girl of 21 years lost her life during the course of a routine surgery, which is not known to entail major complexities, this Commission is bound by the statutory framework governing its jurisdiction. Therefore, in the absence of payment of any consideration whatsoever, the instant complaint is not maintainable under the provisions of the Consumer Protection Act, 1986, and is accordingly dismissed.

18. It is, however, clarified that the Complainant is at liberty to seek redressal of his grievances and relief before the appropriate forum. And, towards the same, he shall also be at liberty to seek waiver under Section 14 of the Limitation Act, 1963 of the period spent in progressing this complaint. We also make it clear that we expressed no opinion on merits of the case.

19. C.C. No. 1942 of 2018 is disposed of with above directions.

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