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MEDICAL NEGLIGENCE= While deciding the cases of medical negligence, it would be appropriate to keep in mind that a Doctor neither undertakes that he will positively cure the patient nor does he undertake to use the highest possible degree of skill. In the case of medical professional, negligence means failure to act in accordance with the standards of reasonably competent medical men at the relevant point of time. A medical practitioner is expected to exercise a reasonable degree of care and skill.

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

NEW DELHI

 

FIRST APPEAL NO. 182 OF 1999

(From the order dated 01.02.1999 in Complaint No. 219/1995

of Maharashtra State Consumer Disputes Redressal Commission)

     Shakil Mohd. Vakil Khan

     R/o 112, Noorani Patel,

Mansion, 3rd Floor, A.Np. 15/16,

Dimkar Road, Nagpada,

Bombay – 400 008.                                     …     Appellant

Versus

     Dr. C.K. Dave,

25, Indus Court A Road,

Church Gate,

Bombay – 400 020.                                     …      Respondent

 

FIRST APPEAL NO. 238 OF 2002

(From the order dated 01.02.1999 in Complaint No. 219/1995

of Maharashtra State Consumer Disputes Redressal Commission)

Dr. C.K. Dave,

25, Indus Court A Road,

Church Gate,

Bombay – 400 020.                                     …     Appellant

Versus

Shakil Mohd. Vakil Khan

R/o 112, Noorani Patel,

Mansion, 3rd Floor, A.Np. 15/16,

Dimkar Road, Nagpada,

Bombay – 400 008.                                     ….     Respondent

 

BEFORE

HON’BLE MR. JUSTICE V.R. KINGAONKAR,

PRESIDING MEMBER

HON’BLE MR. VINAY KUMAR, MEMBER

For Dr. Perin Irani Mr. Niraj Kumar, Advocate
For the Respondent in FA No. 182/1999 and Appellant in FA 238/2002 Mr. Rajiv Tyagi, AdvocateMr. Ajay Kumar, Advocate

Mr. Dipak Bhattacharya, Sr. Advocate with R. Chowdhary, Advocate

Mr. Rajan Khosla, Advocate

PRONOUNCED ON :   30th NOV. 2011

COMMON JUDGEMENT

 

PER JUSTICE V.R. KINGAONKAR, PRESIDING MEMBER

1.      Both the above appeals arise out of same judgement delivered by the Maharashtra State Consumer Disputes Redressal Commission in complaint case no. 219 / 1995.  By the impugned judgement, the State Commission partly allowed the complaint only against OP No. 2, Dr. C.K. Dave.  He was directed to pay amount of Rs.4,10,000/- as compensation to the complainant – Shakil Mohammed.

2.      Feeling aggrieved, original complainant Shakil Mohammed has preferred FA No. 182 / 1999 seeking enhancement of the quantum of compensation.  Dissatisfied with the findings of the State Commission, the original OP No. 2, Dr. C.K. Dave has preferred FA No. 238 / 2002.  It may be mentioned here that in his appeal, FA No. 182 / 1999, original complainant Shakil Mohammed had joined original OP No. 1 Dr. Ms. Perin Irani as well as original OP No. 3 Parsi Lying In Hospital.  However, during hearing of the matter at interim stage, complainant Shakil Mohammed sought dismissal of the appeal against them, i.e., respondent nos. 1 & 3 in his appeal. By order dated 16.10.2004, they were directed to be deleted from the array of respondents for the reason that the appeal of Shakil Mohammed stood withdrawn as against them.  So also, during course of hearing, learned counsel, Mr. Dhir appearing for appellant Dr. C.K. Dave made a statement that in his appeal too names of OP No. 1 Dr. Ms. Perin Irani and OP No. 3 Parsi Lying In Hospital may be deleted as no claim was being sought against them.  In other words, the grievance of complainant – Shakil Mohammed in the context of FA No. 182/1999 is restricted to the quantum of compensation awarded to him and is further restricted to the liability of OP No. 2 Dr. C.K. Dave.  So also, in cross appeal (FA No. 238 / 2002) grievance of Dr. C.K. Dave, is restricted to the extent of adverse finding against him and moreover in respect of the legal impact of exclusion of the other two parties during the proceedings of the appeal of complainant Shakil Mohammed.

3.      The facts, as unfolded from the record and pleadings of the parties, may be stated in nutshell as under:-

i)      Mrs. Salma Khan was being treated by Dr. Ms. Perin Irani during course of her previous pregnancy.        She had given birth to two children out of the wedlock.  She was aged about 27 years at the relevant time.  She was approximately 96 kg. in weight, short in height and was obese.  She was unwilling to continue the pregnancy at the initial stage during course of her third pregnancy.  She expressed her intention to OP No. 1 Dr. Ms. Irani that MTP may be conducted.  It appears that at the behest of her family members she gave up the demand for MTP and continued the pregnancy.  She was admitted in the Parsi Lying In Hospital on 4thDecember 1994 at about 11:00 PM with a complaint of probable non-foetal movements.  Dr. Ms. Irani clinically examined her.  It was found that her general condition was reasonably good.  It was also found that the foetal heart beats were present.  She was given I.V. Fluids and necessary medicines.  Dr. (Ms.) Irani continued to watch the progress after each hour during the night time.  In the early morning, at about 6 AM, Dr. (Ms.) Irani gave instructions to make available Dr. Bhagat, anaesthetist who used to be regularly called by the Hospital to help during the operative procedure.  However, Dr. Bhagat, had prior commitment to attend at Breach Candy Hospital at the relevant time.  Hence he expressed his inability to attend.

ii)     At about 8 AM, Dr. (Ms.) Irani noticed rupture of membranes spontaneously and oozing of meconium stained liquor.  Obviously, there was foetal distress and hence Dr. Ms. Irani told the patient that caesarean operation was inevitable.  She also called another anaesthetist by name Dr. Gada, to attend the caesarean procedure and urged Dr. Dinoo Dalal an honorary doctor of the Hospital alongwith Dr. Mrs. Langdana to assist her during course of the caesarean operation.  Dr. Ms. Irani also sought written consent from any male member of the patient’s nearest relatives.  Nobody was there from her relatives in the proximity of the patient at the relevant time.  At about 10 AM or little later father-in-law of Mrs. Salma Khan arrived and consented for the caesarean operation.  By that time, Dr. Gada, the anaesthetist who had earlier arrived to attend the operation had left the Hospital because he was to go elsewhere for attending another operative case.  Since the time was running out, and the case was of emergency, Dr. C.K. Dave was called for.  He is an anaesthetist. He reached the hospital at about 11.15 AM.  He decided to administer spinal anaesthesia.  The caesarean procedure was conducted immediately.  The baby was taken out, cried well and placenta was expelled.  It was at the time of suturing the lower segment of the abdomen that Dr. Ms. Irani noticed change of colour of the blood and informed Dr. C.K. Dave that the blood had turned dark.  Still, however, Dr. C.K. Dave, assured that it could not be a cause of worry and appropriate measures will be taken.  The patient was put on intubation, and thereafter Dr. C.K. Dave reported that her pulse rate was satisfactory.  The patient was put on ventilator.  The operation was completed.  When the intubation tube was removed, the patient (Mrs. Salma Khan) found difficulty in breathing.  It was noticed that she was comatose and her eyes had rolled up.  Dr. Ms. Irani and other attending Doctors of Parsi Lying In Hospital, decided to shift the patient to ICU in a better equipped hospital.  They informed relatives of Mrs. Salma Khan that her condition was serious.  Arrangements were made to reserve a bed at Breach Candy Hospital.  Dr. Mrs. Langdana called for ambulance.  The patient was shifted to ICU in Breach Candy Hospital in the ambulance alongwith Dr. Ms. Irani, a nurse as well as a relative of the patient. Arrangements for IV drip during the transit was made.  Dr. C.K. Dave, also followed the ambulance in his car till the patient reached the Breach Candy Hospital.

4.      Briefly stated, the case of complainant Shakil Mohammed was that during course of the caesarean procedure, the operation was conducted without availability of Oxygen cylinder.  The patient was kept suffering for prolonged period.  OP No.2 Dr. C.K. Dave ought to have refused to administer anaesthesia and participate in the surgery when there was no availability of oxygen and he had no time to go through the relevant medical papers so as to evaluate the condition of Mrs. Salma Khan.  He did not accompany her during the transit to the Breach Candy Hospital.  It was due to sheer negligence of Dr. C.K. Dave and other attending Doctors in the Parsi Lying In Hospital that Mrs. Salma Khan went into prolonged hypertension and was bed ridden for several months.  She eventually died in or about 4 / 5 months, while she was under treatment in Prince Alikhan Hospital, Mumbai.

5.      Complainant – Shakil Mohammed further alleges that he incurred heavy expenditure for the medical treatment of Mrs. Salma Khan.  He further lost consortium for a prolonged period at least 50 – 75 years.  He suffered loss of business during the relevant period.  Hence he filed complaint for compensation of Rs.70 lakhs alongwith medical expenditure of Rs.10 lakhs as well as for the mental agony undergone by him. 

6.      Shorn of unessentials, the case of Dr. C.K. Dave was that he was summoned at the eleventh hour and went to the Hospital with good intention to help the critical patient.  When he reached the Hospital, Mrs. Salma Khan was already in the operation theatre.  He asserted that he gave appropriate anaesthesia needed at the moment.  He submitted that after delivery of the child, the patient had severe hiccups and some fluid had emanated from her stomach.  He, therefore, suspected that there was regurgitation and aspiration in the air passage.  He immediately administered injections and put her on endotracheal tube with the help of the laryngoscope.  It was his contention that at end of the operation, the patient was fully conscious but was trying to pull out the endotracheal tube.  There was apprehension that the endotracheal tube could be bitten by the patient and, therefore, chocking of the wind pipe could be resulted.  Therefore, he decided to extubate her.  She was immediately transferred in the Ambulance which was made available without any delay.  According to him, her condition had stabilised before she was reached to the Breach Candy Hospital.  He did not accompany her in the Ambulance because a relative, a nurse and Dr. Ms. Irani were already in the Ambulance and were surrounding the patient and, therefore, he followed them in his car vehicle till the patient was reached to Breach Candy Hospital.  He, therefore, submitted that he had done all that was necessary and required as per the prevailing medical practice.  He flatly denied any medical negligence on his part.  Hence he sought dismissal of the complaint filed against him. 

7.      As stated earlier, the State Commission dismissed the complaint against OP No. 1 Dr. Ms. Irani and OP No. 3 Parsi Lying In Hospital and, therefore, it is not necessary to consider pleadings put forth by them.  Both of them have been further deleted in these two appeals.  Hence what they have stated before the State Commission is no more significant and relevant for the purpose of deciding the present appeals.

8.      We have heard learned counsel for the parties.  We have carefully perused the record and proceedings of the State Commission.  We have gone through the medical literature as well as the medical papers alongwith medical opinion of the two member team of Dr. Soonawala, Gynaecologist and Dr. Bhojraj, Anaesthetist.  The experts were requested by the State Commission to give their opinion as per letter dated 18.12.1997 after examining all the medical papers, on question of medical negligence of the Parsi Lying-in-Hospital or Dr. C.K. Dave, as the case may be.

9.      The points which arise for determination are as follows:-

i)        Whether the State Commission was right in rejecting the expert’s opinion of Dr. Bhojraj while coming to the conclusion of gross-medical negligence committed by Dr. C.K. Dave, Anaesthetist during the relevant caesarean procedure done on Mrs. Salma Khan in the morning of 5.04.1998 by any act of omission or commission?;

ii)       Whether it is duly proved that Mrs. Salma Khan died as a result of the sole medical negligence committed by the Anaesthetist, i.e., Dr. C.K. Dave or that it could be a case of contributory negligence committed by her relatives, other Doctors and any other agency?;

iii)      Whether complainant Shakil Mohammed, proves that quantum of compensation awarded by the State Commission is on lower side and, therefore, enhancement of compensation is needed?

10.    At the threshold, let it be noted that the spontaneous rupture of membranes was found at 8:00 AM on 05.12.1994 and hence the attending Doctors came to the conclusion that Mrs. Salma Khan needed caesarean operation.  It was found to be unavoidable in view of the physical condition of Mrs. Salma Khan.  Not only that she was obese but the meconium stained liquor had emanated per vagina.  Obviously, there was foetal distress.  She was already under mental stress because previously, she wanted termination of the pregnancy but was unwillingly required to continue the same at the behest of her relatives.  Though, immediate caesarean operation was required yet her relatives could not be made available up till about 
10:00 AM.  By that time, during the intervening period regular visiting anaesthetist, by name Dr. Gada had come to the hospital to help Dr. Ms. Irani, had to go back for want of timely consent of the patient’s relatives.  Another regular anaesthetist of the hospital was Dr. Bhagat.  He was informed to attend the patient in the early morning itself.  He too had expressed inability to attend because of prior commitment at Breach Candy Hospital.  Thus, two other anaesthetists had excused themselves.  In fact, if father-in-law of Mrs. Salma Khan or her husband would have been present at the Hospital in the relevant proximity of 8:00 AM, the caesarean procedure could have been done expeditiously.  The delay in giving consent for the caesarean operation also is a contributory factor which speaks of negligence on the part of the complainant.   

11.    Nobody will deny that as an anaesthetist, though OP No. 2 Dr. C.K. Dave, was called at the last moment, during course of the operation, it was necessary for him to take due care while performing his duties.  The medical record shows that he reached there when the patient was already on the operation table.  It is but natural that he had no reasonable time to examine the history of the patient.  He gave the spinal anaesthesia after clinical examination of the patient. There is absolutely no material on record to show that the procedure adopted for giving of anaesthesia was improper, reckless or not in accordance with the regular medical practice expected from any reasonable anaesthetist.  The State Commission found him guilty of medical negligence mainly on account of following reasons:-

i)        He did not monitor the operation when it was reported that her blood was changing the colour and was turning dark as was reported by OP No. 1 Dr. Ms. Irani.

ii)       That, he did not make arrangement to provide oxygen to the patient enroute to Breach Candy Hospital during the transit journey when it was decided that she shall be shifted to the ICU and was practically unconscious.

iii)      He negligently extubated endotracheal tube and thereby caused negligence because the Oxygen supply to the brain had thereby diminished.

12.    From the impugned judgement, it may be gathered that the State Commission came to the conclusion that there was no medical negligence committed by OP No. 1 Dr. Ms. Irani and OP No. 3 Parsi Lying In Hospital.  The State Commission observed:-

“Dr. Rustom P. Soonawala, an eminent obstetrician gave his expert opinion at request of the Commission where he noted “ In my opinion, the surgery was not complicated or prolonged.  The blood loss was within accepted limits.  Regards the obstetrical management, there was no negligence.

 

37.     After keeping in mind the above expert opinion and perusal of hospital records and considering the say of all the concerned doctors and the hospital, we are inclined to believe that the said complication did not arise out of negligence of Dr. Irani – OP 1.

 

38.     OP.3, the Parsi-Lying In Hospital, cannot be held responsible since they have provided well equipped operation theatre for the said operation.  At the material time, the hospital had a stock of requisite oxygen cylinders and proper infrastructure and non-utilization of these facilities and negligence arising out of such action, becomes purely a burden on the doctor to bear for not availing it.  Though the question of vicarious liability was discussed, the hospital being an extremely poor Charitable Trust which cannot pay their resident doctors well, they have been allowing doctors to do private practice paying a meagre amount of Rs.450/- a month which OP 1 was recounting.  We do not see any negligence and deficiency of service rendered by OP 3, the hospital and their records and their active participation helped us to see the case in the correct light.”

13.    So far as the above observations are concerned, there cannot be two opinion about the fact that the State Commission placed heavy reliance on opinion of Dr. Rustom P. Soonawala and accepted his opinion when it exonerated OP No. 1 Dr. Ms. Irani.  The State Commission observed that OP No. 3 Parsi Lying In Hospital provided has well-equipped operation theatre for the said operation.  It is also observed that there was stock of requisite oxygen cylinder and proper infrastructure was available.  Still, however, in para 40 of the impugned judgement, the State Commission made certain contradictory observations:-

“OP 1 who rose to emergency and took the decision to shift immediately to ICU in a better equipped hospital.  This did not come from OP 2 who was in charge totally for the anaesthetic oriented who should have monitored himself to see the changes taking place in the patient.  Removal of the tube because patient was biting the tube, reason given by OP 2 is not in their notes or noted by anybody in the team who were involved at the time and the fact at the Breach Candy Hospital through their notes. The first thing done was intubating the patient.  OP 1 stated “when the intubation tube was removed, breathing became very difficult, the patient was comatose, with eyes rolled up and not responding.  But Dr. Dave insisted that the patient is fine and there is nothing to worry.”

14.    Perusal of the above observation goes to show that decision of shifting the patient to the ICU in a better equipped hospital was taken by OP No. 1 Dr. Ms. Irani. That surely was not the decision of OP No. 2, Dr. C.K. Dave.  Indeed, the State Commission noticed that OP No. 3 Parsi Lying In Hospital was having proper infrastructure, well-equipped operation theatre and adequate stock of oxygen cylinders.  The decision to shift the patient to Breach Candy Hospital ICU was result of the emergency which had arisen after the caesarean operation and not because of lack of facilities available in Parsi Lying In Hospital.  It was not expected of Dr. C.K. Dave for taking any decision for shifting of the patient because he was not at all attached to the Parsi Lying In Hospital.  He was just on call duty.  In fact, he responded to the call of the duty as an anaesthetist notwithstanding the fact that his help was sought at the eleventh hour.  It is true that removal of the tube from the endotrachea was done by OP No.2 C.K. Dave when he noticed that the patient was making attempt to remove the tube on her own.  That was not part of the clinical or operative treatment of the patient.  Obviously, absence of such notes in the record of OP No. 3 Parsi Lying In Hospital, by itself is of no much importance.  Those notes were not taken by OP No. 2 Dr. C.K. Dave.  He had no access to the record of the Parsi Lying In Hospital.

15.    Now, it is true that OP No. 2 Dr. C.K. Dave should have accompanied the patient in the ambulance while shifting her from Parsi Lying In Hospital to Breach Candy Hospital.  There is sufficient explanation on record about his non-performance of such duty.  He had entered the ambulance alongwith the patient.  It has come on record that he got down immediately only when OP No. 1 Dr. Ms. Irani entered the ambulance and since there was no space available to accommodate more persons around the patient.  The patient could have suffered suffocation.  The patient was accompanied by her father-in-law, a staff nurse with IV fluid as well as OP No. 1 Dr. Ms. Irani.  There is nothing wrong if OP No. 2 Dr. C.K. Dave decided to immediately follow them in his car vehicle as he did.  As a matter of fact, the transfer of the patient from Parsi Lying In Hospital to Breach Candy Hospital was the responsibility of the concerned Hospital.  The ambulance was summoned by Dr. Mrs. Langadana.  She should have ensured that the ambulance was well-equipped with arrangements for supply of oxygen during the transit.  Moreover, it has come on record that the distance between Breach Candy Hospital and Parsi Lying In Hospital is short and there was no substantial reason to believe that much time would be consumed in the process of shifting the patient to that Hospital.

16.    So far as extubation of the patient is concerned, no opinion of any expert was placed on record by the complainant.  The State Commission on its own had called for opinion of experts.  The State Commission accepted the opinion of Dr. Rustom P. Soonawala, in so far as the case against OP No. 1 Dr. Ms. Irani is concerned.  Still, however, the State Commission appears to have rejected the expert’s opinion of Dr. Y.G. Bhojraj.  He is an expert in the field of Anaesthiaology.  His opinion shows that the anaesthetist was required to secure a clear airway by passing a tube in the endotrachea so as to allow passage of oxygen.  He opined that this procedure was duly performed successfully and the patient was fully conscious which fact indicated competence of OP No. 2 Dr. C.K. Dave.  He further opined that intubation is a difficult procedure, particularly in case of a conscious and obese patient.  Still, however, such difficult procedure was successfully conducted by OP No. 2 Dr. C.K. Dave.  That showed exercise of standard practice and skill required of an anaesthetist.  The expert’s opinion further shows that the parameters recorded by the Breach Candy Hospital, upon admission of the patient, do not show that the procedure consequent to acidic aspiration was improper or inadequate.  He opined that by successful intubation, OP No. 2 Dr. C.K. Dave avoided death of the patient on the operation table.  He further opined that after sucking out the gastric secretion from the lungs he gave 100% oxygen through the Boyles machines.  All these observations of the expert witness go to show that OP No. 2 Dr. C.K. Dave took necessary care expected of any reasonable and prudent Anaesthetist.  There was no substantial reason available to dislodge the version of independent expert, i.e., Dr. Y.G. Bojraj, particularly when opinion of expert Gynaelogist Dr. Rustom P. Soonawala was duly accepted by the State Commission.  We have gone through the cross-examination of Dr. Bhojraj.  The cross-examination of Dr. Y.R. Bhojraj does not show that he gave any contradictory version which could vitiate his opinion.  In any case, the procedure adopted by OP No. 2, Dr. C.K. Dave could not be branded as abnormal and illogical.  There was no reason for him to remove the endotracheal tube except and save for the reason that the patient herself was likely to endanger her life by biting the tube during the post-operative period.

17.    We need not reproduce any medical literature as regards care to be taken by an Anaesthetist.  The medical record and version of Dr. Ms. Irani shows that the patient was kept on fasting as required prior to the caesarean operation.  The recommendations of the “Practice Guidelines for Obstetrical Anaesthesia”, may however be reproduced as below:-

“Recommendations:

 

The oral intake of modest amounts of clear liquids may be allowed for uncomplicated labouring patients.  Examples of clear liquids include, but are not limited to, water, fruit juices without pulp, carbonated beverages, clear tea, and black coffee.  The volume of liquid ingested is less important than the type of liquid ingested.  However, patients with additional risk factors of aspiration (e.g., morbid obesity, diabetes, difficult airway), or patients at increased risk for operative delivery (e.g., nonreassuring fetal heart rate pattern) may have further restrictions of oral intake, determined on a case-by-case basis.

(Emphasis supplied by us)

18.    The patient with morbid obesity and diabetes are at a risk for operative delivery.  The patient in the present case was given local anaesthesia through spinal injection.  Obviously, OP No. 2 Dr. C.K. Dave took care while administering the anaesthesia.  The reason to give the local anaesthesia could be to ensure the positive responses and watch the caesarean procedure as per reactions of the patient.  No doubt, OP No. 2 Dr. Ms. Irani informed Dr. C.K. Dave that there was dark blood oozing out while closing the lower intestinal part during the operative procedure yet there was nothing wrong if Dr. C.K. Dave thought it proper to manage the problem after the caesarean procedure was done. For, the Oxygen cylinders were available and the patient was already intubated.

19.    While deciding the cases of medical negligence, it would be appropriate to keep in mind that a Doctor neither undertakes that he will positively cure the patient nor does he undertake to use the highest possible degree of skill.  In the case of medical professional, negligence means failure to act in accordance with the standards of reasonably competent medical men at the relevant point of time.  A medical practitioner is expected to exercise a reasonable degree of care and skill.

20.    In “Vinitha Ashok Vs. Laxmi Hospital & Ors.” (2001) 8 SCC 731, the Supreme Court held that the professional opinion should be able to withstand logical analyses in order to be described as reasonable and responsible.

21.    Considering the foregoing discussion it will have to be said that the State Commission committed patent error while holding that the OP No. 2 Dr. C.K. Dave is guilty of ‘medical negligence’.  In our opinion, such finding is unacceptable, improper and unsustainable.

22.    We may now switchover to yet another significant aspect of the matter.  The State Commission held that OP No. 1 Dr. Ms. Irani and OP No. 3 Parsi Lying In Hospital were not responsible to indemnify the complainant.  It has been held that there was no medical negligence on the part of both the said opposite parties. We cannot be oblivious of the fact that OP No. 2 Dr. C.K. Dave was not under legal obligation to constantly attend the patient because he was not on pay roll of the OP No. 3, i.e., Parsi Lying In Hospital.  He responded to call of profession.  He reached the Hospital when Mrs. Salma Khan was already under preparation for caesarean operation.  The provisions of the C.P. Code are applicable to a limited extent in the proceedings before the Consumer Commission.  In “Savita Garg Vs. Director, National Heart Institute” [(2004) 8 SCC 56], the Supreme Court observed:-

“The patients once they are admitted to such hospitals, it is the responsibility of the said hospital or the medical institutions to satisfy that all possible care was taken and no negligence was involved in attending the patient. The burden cannot be placed on the patient to implead all those treating doctors or the attending staff of the hospital as a party so as to substantiate his claim. Once a patient is admitted in a hospital it is the responsibility of the Hospital to provide the best service and if it is not, then hospital cannot take shelter under the technical ground that the concerned surgeon or the nursing staff, as the case may be, was not impleaded, therefore, the claim should be rejected on the basis of non-joinder of necessary parties. In fact, once a claim petition is filed and the claimant has successfully discharged the initial burden that the hospital was negligent, as a result of such negligence the patient died, then in that case the burden lies on the hospital and the concerned doctor who treated that patient that there was no negligence involved in the treatment.  Since the burden is on the hospital, they can discharge the same by producing that doctor who treated the patient in defense to substantiate their allegation that there was no negligence. In fact it is the hospital who engages the treating doctor thereafter it is their responsibility.

(Emphasis supplied by us)

23.    We may gather form the above observations that primarily it is the responsibility of the Hospital to take care of the patient.  The patient goes to the Hospital and not to a particular Doctor in the Hospital.  The Hospital is, therefore, a necessary party to the proceedings before the Consumer Commission.  The liability of the Hospital and the Doctor is joint and several.  Their liability cannot be segregated at the instance of the complainant.  It follows, therefore, that when OP No. 1 Dr. Ms. Irani and OP No. 3, Parsi Lying In Hospital have been given clean chit by the State Commission and, therefore, have not been joined as parties in both the appeals or after joining them they have been deleted at the instance of the parties, mere grievance against OP No. 2, Dr. C.K. Dave is unsustainable in the eye of law.  He cannot be singled out when the Hospital is rendered blameless.

24.    For the reasons afore-stated, we are of the opinion that FA No. 238 / 2002 preferred by Dr. C.K. Dave deserves to be allowed.  It follows that complainant Shakil Mohammed is not entitled to any enhancement of compensation and, therefore, FA No. 182 / 1999 deserves to be dismissed.  Hence FA No. 238 / 2002 is allowed. The impugned order is set aside. FA No. 182 / 1999 is dismissed.  The parties shall bear their own costs. Refund of the statutory amounts as deposited by the concerned parties, alongwith accruals if any, be made to the respective parties.

..……………………………

(V.R. KINGAONKAR J.)

PRESIDING MEMBER

.……………………………

(VINAY KUMAR)

MEMBER

RS/

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