Sudhir Kumar Jain, Member

Cetty Vijaya (hereinafter referred to as "the patient") was wife of the complainant/the appellant/Cetty Koteswara Rao (hereinafter referred to as "the appellant"). The patient was taking treatment of Kidney related disease i.e. CKD fifth stage from Seven Hills Hospital Visakhapatnam and was discharged with a direction to undergo hemodialysis thrice in a week. The patient had followed said instructions/advice of the doctors as a result of which her creatinine level was got controlled within two days. The patient was also taking herbal medicines for the last 1 1/2 years as her Serum Creatinine level was high. The patient on advice of the doctor friends was referred to M/s Apollo Hospitals /the opposite party/the respondent (hereinafter referred to as 'the respondent') for second opinion. The serum creatinine was got controlled within two days. The patient was suggested to have hemodialysis thrice in a week. The hemodialysis process which was undertaken in the respondent resulted in high blood pressure, body vibrations and unconsciousness. The earlier system of dialysis undertaken in Seven Hills hospital was vanished and the patient was got admitted in 19.07.2012 in the respondent with critical condition. The patient after admission shared AC hall which was accommodating other complicated patients and due to this, health of the patient was affected instead of recovery. The patient was discharge from the respondent on 20.08.2012 against medical advice but discharge summary was not provided. The patient later on was taken to Old Age Home situated in MVP Colony and thereafter to Aditya Critical Care Centre available opposite KG Hospital gate. The patient was declared as brain dead. The appellant despite several RTI applications was not given case-sheet pertaining to the patient. The appellant was provided the discharge summary through RDO, Visakhapatnam in November, 2012. The respondent informed the complainant through PIO/RDO that case sheet and connected reports were not provided due to non-payment of bills and discharge was against advice of the doctors. The appellant being aggrieved has filed the present consumer complaint bearing C.C. No. 255 of 2014 titled as Cetty Kotwswara Rao V M/s. Apollo Hospitals before A.P. State Consumer Disputes Redressal Commission at Vijayawada (hereinafter referred to as 'the State Commission') alleging deficiency of service on the part of the respondent and sought the reliefs as mentioned in the prayer clause of his complaint

2. The respondent has filed counter stating therein that the complainant along with the patient aged 53 years came to the respondent as a chronic kidney disease, fifth stage and also with complaints of Dyspnoea even at rest, orthopnea chest discomfort, fever with chills and rigor and pedal edema since two years with history of irregularity in counting MHD, past medical history of hypertension, operated long ago and hypothyroidism. The patient was diagnosed as acute kidney disease with Hypervolemia and sepsis and was shifted to MICU for further evaluation of treatment. Dr. J.A.L Ranganath had examined the patient and observed HB was 5.8%/Gr., TLC of 13,200 cells and ESR of 65 mm/hr and urea of 195 mg/dl, S. Creatinine of 106 mg/dl. The conditions of the patient indicated ongoing sepsis and severe Azotemia. The pulmonary edema was also noticed and parenteral antibiotic injection was started and ordered for Hemodialysis and packed cell transfusion. The patient was kept in Nebulization, Anti HTN drugs and 02 through mask. The patient was got discharged on 21.08.2012 even the condition of the patient was stable against the medical advice of the doctor and the patient subsequently died. There was no medical negligence on the part of the respondent in the treatment of the patient. The appellant did not collect discharge summary which was ready at the time of discharge. The appellant gave cheque of Rs. 1,00,000/- against the medical bills which was got dishonored and more than Rs. 3 lakhs were due against the appellant towards the hospital/medical bills which was not paid by the appellant till date. The respondent denied other allegations as levelled in the complaint. It was prayed that the complainant be dismissed since there was no medical evidence and expert opinion to substantiate the medical negligence against the respondent.

3. The appellant tendered his own affidavit in evidence along with documents Ex. A-1 to A-15. The respondent tendered affidavit Ex. B-1 of Mr. T. Raviraju in evidence.

4. The State Commission vide order dated 30.08.2022 (hereinafter referred to as "the impugned order") observed that the patient was having Chronic Kidney Disease fifth Stage at the time of admission in the respondent and was taking herbal treatment. The appellant has made vague allegations and stated irrelevant facts. The State Commission further observed that the patient was got discharged from the respondent against medical advice and the appellant in affidavit tendered in evidence could not point out any incident of negligence. The State Commission ultimately observed that no negligence could be made out against the respondent. The relevant portion of the impugned Order is reproduced below:

                   7. This is a case where by the time the patient was taken to the opposite party hospital, she was already having Chronic Kidney Disease 5th Stage and it is the case of the complainant that she was on herbal treatment prior to taking her to the opposite party hospital. The allegations in the complaint are very vague and there are irrelevant facts stated therein. The patient was taken away from the opposite party hospital against medical advice. The complainant could not pay the bills and he wrote letters to the hospital under Exs.A-15 and 16 that he is unable to pay the entire bill amount. The complaint or the affidavit of the complainant does not particularly point out any incident of negligence. It is mentioned in the complaint that by the time the patient was admitted in the hospital, dialysis was stopped for 1 1/2 years. It is not as though the opposite party did not give any treatment to the wife of the complainant. Ex.B-1 is the case sheet showing the various tests done and also the condition of the patient periodically and treatment given. There is no allegation that there was wrong diagnosis or wrong treatment.

                   8. Unless there is assertion in the complaint and the documentary evidence in support of the same, no medical negligence can be attributed against the hospital. Considering the facts of the case and the documents in which the complainant's wife was admitted to the opposite party hospital after taking herbal treatment after 1 1/2 years and the absence of any evidence to establish medical negligence during the period of treatment on its control, no negligence can be made out against the opposite party.

                   9. In the result, the complaint is dismissed. No costs.

5. The appellant also filed review application bearing no 06/2022 before the State Commission which was dismissed vide order dated 24.11.2022 by observing that State Commission passed the impugned order after thoroughly going through the documents filed by both the parties and arrived at a conclusion that there were no merit in the complaint and dismissed the complaint. The State Commission also observed that the State Commission did not have power to review under the Act of 1986.

6. The appellant being aggrieved filed present First Appeal bearing F.A. No. 534 of 2023 titled as Cetty Koteswara Rao V. M/S. Apollo Hospitals. The appellant challenged the impugned order primarily on grounds that the impugned order was wrong, erroneous, contrary to law and deserves to be set-aside. The State Commission erred in holding that the appellant is not entitled for compensation for medical negligence on the part of the respondent. The patient blood pressure got raised due to treatment in the respondent with body vibrations and unconsciousness. The condition of the patient got critical on 28.07.2012 due to negligence of the respondent. The patient has died on 26.08.2012 with brain death/heart attack after being admitted at Aditya Critical Care Hospital due to continuous negligent treatment of the respondent. The appellant was also not provided with case sheet. The appellant in memorandum of appeal narrated factual position and other related issues in detail. The respondent did not file reply despite service and accordingly right to file reply was ordered to be closed.

7. The order dated 11.12.2023 reflected that a letter was received from the appellant wherein mentioned his inability to move due to partial facial brain stroke. It was ordered that appropriate order be passed on the basis of record. The present appeal was listed on 19.08.2025 but none appeared on behalf of the appellant and respondent on that day. It was ordered that the appellant has filed written synopsis and appeal shall be decided on merits based on material on record. Again none appeared on 03.10.2025 then it was decided to take up the appeal on merits based on available record including written synopsis filed by the appellant. We have accordingly perused the available record and written submissions submitted by the appellant.

8. The appellant in written arguments dated 18.06.2025 and received in this Commission on 23.06.2025 stated that the State Commission passed the impugned order without going through the record and the State Commission passed the orders without participation of the appellant. The appellant also made certain allegations in respect of functioning of the State Commission. The appellant in written arguments dated 09.09.2023 also stated that the appellant affected with many miscarriage of facts without providing discharge case-sheet at the time of settling the bills etc. The respondent treated the patient with negligence and kept the patient on ventilation with effect from 28.07.2012 to 20.08.2012 without all medical support and dialysis during the period under which the patient remained admitted in the respondent. The respondent discharged the patient in the ambulance without support of oxygen and in emergency condition shifted the patient to Aditya Multi Care Hospital. The respondent could not treat the patient and no case-sheet of medical treatment was provided by the respondent. The appellant stated that the impugned order passed by the State Commission be set aside and the complaint filed by the appellant be allowed.

9. The negligence can be normally explained as a breach of duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. The actionable negligence consists in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill, by which neglect the plaintiff has suffered injury to his person or property. The definition involves three constituents of negligence which are i) a legal duty to exercise due care, ii) breach of the duty and iii) consequential damages. The medical negligence may be explained as a want of reasonable degree of care or skill or willful negligence on the part of the medical practitioner in the treatment of a patient with whom a relationship of professional attendant is established, so as to lead to bodily injury or to loss of life. The absence or lack of care that a reasonable person should have taken in the circumstance of the case is held to be negligent. The three ingredients of negligence are i) the defendant owes a duty of care to the plaintiff, ii) the defendant has breached a duty of care and iii) the plaintiff has suffered an injury due to breach. The basic principle relating to negligence by professionals is called as the Bolam Rule which was laid down in Bolam V Friern Hospital Management Committee, (1957) 1 WLR 582 as under:-

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

                   9.1 The Supreme Court in an action for negligence in tort against a surgeon in Laxman Balakrishna Joshi V Trimbak Bapu Godbole & another, 1969 (1) SCR 206 held that the duties which a doctor owes to his patient are clear and a person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. It was further held that such a person when consulted by a patient owes him certain duties which are a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give or a duty of care in the administration of that treatment and a breach of any of those duties gives a right of action for negligence to the patient. It was also held that the practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. The relationship between a medical practitioner and a patient carries within it certain degree of mutual confidence and trust. The Supreme Court also observed that section 14 of the Act indicates that the reliefs that can be granted on a complaint filed under the Act in respect of deficiency in service and the compensation can be awarded for loss or injury suffered by the consumer due to the negligence of the opposite party including medical negligence. The Supreme Court in Dr. C.P.Sreekumar V S. Ramanujam, II (2009) CPJ 48 (SC) held that onus to prove medical negligence lies on the claimant and this onus can be discharged by leading cogent evidence. This Commission in Nalini V Manipur Hospital & others, IV (2011) CPJ 280 (NC) observed that appellant's case of alleged medical negligence cannot be accepted only on basis of affidavit without support of any expert opinion.

                   9.2 The Supreme Court in Achutrao Haribhau Khodwa V State of Maharashtra and others, (1996) 2 SCC 634 held as under:-

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

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

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

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

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

                   (1) Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: 'duty', 'breach' and 'resulting damage'.

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

                   (3) A professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.

                   (4) The test for determining medical negligence as laid down in Bolam's case [1957] 1 W.L.R. 582, 586 holds good in its applicability in India.

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

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

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

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

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

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

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

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

10. The issue which needs consideration is that whether the respondent has committed any medical negligence during the treatment of the patient. The appellant admitted that the patient was suffering from kidney related disease i.e. CKD at fifth stage and had already undergone the treatment from Seven Hills Hospital, Visakhapatnam before approaching the respondent for obtaining second opinion. The respondent was admitted in the hospital in a critical condition. The patient before being admitted in the respondent was taking taken herbal treatment for last 1 1/2 years as her serum creatinine levels were high and remained without dialysis. The patient was undergoing the process of haemodialysis thrice in a week. The appellant primarily alleged that the respondent had not provided the discharge summary to him at the time of discharge of the patient but the respondent categorically stated that the appellant himself did not collect the discharge summary case-sheet of the patient which was made ready available at the time of discharge.

11. We are in agreement with the findings given by the State Commission in impugned Order that the patient was having Chronic Kidney Disease at fifth Stage when the patient got admitted in the respondent. The appellant has made only vague allegations in the complaint and the patient was got discharged from the respondent against medical advice. The State Commission rightly observed that the appellant could not point out any incident of negligence and no negligence could be attributed against the respondent. There is no convincing and cogent evidence which can establish any incident of negligence on the part of the doctors of the respondent in treatment of the patient which should not be expected from a medical professional doctor. The burden to prove negligence was on the appellant but the appellant could not discharge said burden by placing appropriate material on record. We are not convinced by the arguments of the appellant as detailed herein above. The mere bald allegations of medical negligence on the part of the respondent are not tenable as each and every allegation must be substantiated through medical documents and expert opinion which the appellant could not do. The appellant filed an application bearing CCIA No. 30 of 2020 in the present complaint before the State Commission for seeking permission to obtain an expert opinion regarding the treatment given to his wife in the opposite party hospital but the State Commission vide its Order dated 28.06.2022 dismissed the said application.

12. The appellant pleaded negligence in treatment of the patient and deficiency in service but the appellant except mentioning that the respondent was negligent in treatment of the patient did not state that how the respondent was negligent in treatment of the patient. The patient was given appropriate treatment to the patient. The respondent has acted like a reasonable man on considerations which ordinarily regulate the conduct of human affairs. There was no apparent or noticeable omission on the part of the respondent in the treatment of the patient. The respondent has taken appropriate care in the treatment of the patient. There is no evidence against the respondent that the respondent ever breached an ethical protocol in the treatment of the patient. The respondent as per Bolam Rule had exercised the ordinary skill of an ordinary competent man in the treatment of the patient. There is no evidence to prove that the respondent has failed to exercise due diligence, care or skill while treating the respondent. The respondent cannot be held liable for medical negligence due to mere fact that the patient has not responded favourably to the treatment and unfortunately died. The respondent cannot be levelled with negligence in performance of its duty with reasonable skill and competence. There is no much force in the written arguments submitted by the appellant that the patient was died due to medical negligence on the part of the respondent as the patient was having a severe history of chronic kidney disease at fifth stage and undergoing dialysis thrice in a week besides other complications before approaching the respondent for second opinion.

13. We in view of above discussion are of the opinion that the appellant has failed to discharge the burden of establishing negligence or deficiency in service on the part of the respondent. Accordingly, the present appeal is dismissed being devoid of merit and the impugned order passed by the State Commission is upheld as there is no error apparent in it which warrant for interference of this Commission. The pending applications, if any, also stand disposed of accordingly.