MRS. KALYANI RAJAN (APPELLANT) Vs. INDRAPRASTHA APOLLO HOSPITAL & ORS.  (RESPONDENTS)

(CIVIL APPEAL NO. 10347 OF 2010)
(2JB, A.S. BOPANNA and PRASHANT KUMAR MISHRA JJ., delivered by PRASHANT KUMAR MISHRA J.)

Facts: The present appeal is directed against the order passed by the National Consumer Disputes Redressal Commission1 dated 03.08.2010 whereby the complaint filed by the appellant and proforma respondent No. 3 under Section 2 (c)(iii) of the Consumer Protection Act, 19862 was rejected.

Issue: Whether the respondents have committed negligence in not providing proper postoperative medical care to the patient and, accordingly, whether the Commission has committed any illegality while dismissing the complaint filed by the appellant herein?

Arguments on behalf of counsel for appellants: Shri Nikhil Nayyar

Learned senior counsel appearing for the appellant submits that the deceased died due to cardiac arrest, albeit, admittedly, the deceased had no cardiac problems. He would further submit that at the time of admission the deceased was informed that after the surgery he would be shifted to the ICU. However, he was shifted from the recovery room directly to a private room and not to the ICU. It is submitted that the patient had an episode of Ventricular Tachycardia (‘VT’) and R-2 in his admission has stated that VT is not his area of expertise and in such cases, patient should have been referred to the appropriate doctor. However, this was not done and no consultant/specialist with the relevant expertise was available to attend to the medical needs of the deceased. Apropos the findings of the impugned order, the appellant herein refutes the same and submits that they are contrary to the facts on record which establishes negligence of the respondents in the post operative care of the deceased. Learned senior counsel further states that the Commission has not appreciated that the present case reflects clear example of negligence due to absence of care. In support of this, he states that there was: i) complete absence of senior doctor, surgeon/specialist to respond to patient’s distress call from the time the patient was shifted to the room/ward till the time he became unconscious and; ii) absence of investigation of pain to diagnose the cause.

Arguments on behalf of counsel for respondents: Dr. Lalit Bhasin

Learned counsel appearing for respondent no. 1 would submit that respondent no. 1 is one of the best hospitals equipped with latest medical equipments and the patient was looked after by Dr. Ravi Bhatia of international repute, who was formerly Professor and Head of the NeuroSurgery and he was assisted by Dr. Brahm Prakash, senior Neurosurgeon. It was also submitted that patient had made excellent recovery after neurosurgery and there were no post operative complications, therefore, he was shifted to recovery room and thereafter to private room. Learned counsel has drawn our attention to the records of the hospital containing pre and post operative history of the patient. Thus, according to learned counsel, there is no negligence on the part of the hospital or the treating doctors. Learned counsel for respondent no. 1 refutes the contentions of the appellant and submits that in view of the findings of the Commission and the dicta of this Court in Bombay Hospital & Medical Research Centre Asha Jaiswal and Others,the present appeal is liable to be dismissed.Ms. Meenakshi Arora, learned senior counsel for respondent no. 2 adopts the submissions advanced on behalf of respondent no. 1 apropos findings of the Commission in the impugned order as well as the dicta of this Court in Bombay Hospital. Additionally, respondent no. 2 submits that it was explained to the appellant and the deceased that the patient would be examined in the recovery room first and thereafter as per standard practice followed by the hospital, all patients who do not show signs of complications in the Recovery Room and have no pre-operative medical problems are shifted to their ward/room.

Held: The court dismissed the present appeal and held that, “this Court is of the considered view that the appellant has failed to establish negligence on the part of Respondents in taking post operative care and the findings in this regard recorded by the Commission does not suffer from any illegality or perversity.”

The court observed that, “In so far as the applicability of principles of Res Ipsa Locutor, in the fact and circumstances of the case, it is to bear in mind that the principles get attracted where circumstances strongly suggest partaking in negligent behaviour by the person against whom an accusation of negligence is made. For applying the principles of Res Ipsa Locutor, it is necessary that a ‘Res’ is present to establish the allegation of negligence. Strong incriminating circumstantial or documentary evidence is required for application of the doctrine.”