IMPORTANT POINTSIn every case where the treatment is not successful or the patient dies during surgery, it cannot be automatically assumed that the medical professional was negligent.

JUDGMENT :

A.S. Bopanna,J.

1. The appellants in all the above three appeals are assailing the order dated 13.08.2009 passed by the National Consumer Disputes Redressal Commission, New Delhi (“NCDRC” for short) in Original Petition No.289/1997. Through the said order, the NCDRC has held the appellants herein guilty of medical negligence and has directed payment of Rs.17,00,000/- (Rupees Seventeen Lakhs only) with interest at the rate of 9 % per annum from the date of filing the complaint till the date of payment. The appellant in Civil Appeal No.7380/2009 is the doctor who administered anaesthesia to the patient. The appellant in C.A. No.6933/2009 is the hospital wherein the operation was performed. The appeal bearing C.A. No.8118/2009 is filed by the New India Assurance Company Limited from whom the anaesthetist and the hospital had taken separate policy to the extent limited under the policy.

2. The brief factual matrix leading to the above case is as here below. The patient Smt. Jasbeer Kaur, wife of the first claimant and mother of claimants 2 and 3 before the NCDRC visited the appellant hospital on 08.10.1996 and was diagnosed with kidney stone in her right kidney. She was advised to undergo surgery by the treating surgeon Dr. R.K. Majumdar. The patient who was examined as an outpatient had come back to the hospital only on 03.12.1996. On being examined again at that point, it was noticed that the right kidney had been severely damaged and the left kidney was also diagnosed with a stone. In medical terms, the diagnosis was referred as Hydronephrosis, Grade IV with renal stone in the right kidney and Hydronephrosis of Grade II in the left kidney. As advised earlier, the patient was again advised surgery.

3. Accordingly, the patient admitted herself on 06.12.1996 and she was declared fit for surgery. On 07.12.1996, Dr. H.K. Khurana informed the patient as also her husband that both the kidneys could not be operated at the same time due to the severe damage. They were advised that as per the medical practice, the less affected kidney that is the left kidney would be operated in the beginning since complete removal of the right kidney cannot be ruled out. In such eventuality, the left kidney if rectified would be able to function. The appellants contend that on 09.12.1996 an informed consent of highrisk surgery was obtained from the patient as well as her husband. The respondent No.1 and Dr. R.K. Majumdar were involved in performing the surgery of the left kidney, which was a successful operation. As per the say on behalf of the hospital and the doctors, the condition of the patient improved by 12.12.1996 due to which the possibility of the second surgery to the right kidney was considered. The necessary tests conducted by the anaesthetist, the physician and the surgeon resulted in clearing the patient for the second surgery.

4. The second surgery was prepared to be conducted on 16.12.1996 and the patient was taken to the operation theatre around 9:45 a.m. The appellant in C.A. No.7380/2009, namely Dr. H.K. Khurana administered the injections of Pentothal Sodium and Scolin as per the medical practice. Subsequent thereto, an endotracheal tube of 7.5 mm diameter was inserted in the trachea to give nitrous oxide and oxygen. The appellants contend that the said standard procedure was also followed during the first surgery but on the present occasion the condition of the patient deteriorated, the blood pressure fell and pulse became feeble. The cardiac respiratory arrest was noticed. The efforts said to have been made by the doctors including the physician did not yield result, though the patient had been put on Boyle’s machine and necessary oxygen was supplied using the same. In the evening, the patient is stated to have been put on an automatic ventilator and was shifted to critical care unit. Despite the best efforts, the patient expired on 23.12.1996.

5. The appellants contend that an issue arose with regard to the payment of the bal