Holding

The hospital and the doctor were not negligent as the patient was in a critical condition with impending gangrene before admission, the alleged delays and equipment failure did not amount to negligence, and res ipsa loquitur could not be invoked without expert evidence.

Summary

The legal heirs of a deceased patient filed a complaint before the National Consumer Disputes Redressal Commission (NCDRC) alleging medical negligence by Bombay Hospital & Medical Research Centre and its vascular surgeon, Dr. C. Anand Somaya, for the death of the patient who was admitted with an abdominal aortic aneurysm and impending gangrene. The NCDRC awarded compensation, holding the hospital and doctor negligent primarily on the basis of res ipsa loquitur. On appeal, the Supreme Court examined the medical records, expert affidavits and the circumstances of surgery, re‑exploration, a malfunctioning DSA machine and the unavailability of an emergency operation theatre. It found that the patient was already in a critical, gangrenous state before admission, that the doctors provided reasonable care, that the equipment failure and theatre occupancy were not negligent, and that the doctrine of res ipsa loquitur was inapplicable without expert evidence. Consequently, the Court set aside the NCDRC order and dismissed the complaint, treating a previously paid amount as ex‑gratia.

Issues considered

The existence of medical negligence by the hospital and the doctor in the treatment and death of the patient.
The applicability of the doctrine of res ipsa loquitur in a medical negligence claim.
Whether the malfunction of the DSA machine and delay in obtaining an emergency operation theatre constitute negligence.
The allocation of the burden of proof in consumer‑forum medical negligence cases.
The adequacy of the standard of care provided by the hospital and the doctor under the Bolam test.

Legislation cited

Consumer Protection Act, 1986

Subjects

medical negligenceres ipsa loquiturconsumer protectionNCDRCstandard of careBolam testhospital liabilityDSA machine malfunctionemergency operation theatreburden of proof

Judgment

1118 [2021]
SUPREME COURT 10 S.C.R. 1118
REPORTS [2021] 10 S.C.R.

A BOMBAY HOSPITAL & MEDICAL RESEARCH CENTRE
v.
ASHA JAISWAL & ORS.
(Civil Appeal No. 1658 of 2010)
B NOVEMBER 30, 2021
[HEMANT GUPTA AND V. RAMASUBRAMANIAN, JJ.]
Consumer Protection – Medical negligence – When not –
Complaint filed against appellants-hospital and doctor, alleging
medical negligence in treating the patient-deceased – Compensation
C
awarded by NCDRC – On appeal, held: Patient was in serious
condition impending gangrene even before admission to the hospital
– Thus, even after surgery and re-exploration, if the patient does
not survive, the fault cannot be fastened on the doctors as a case of
medical negligence – A doctor is expected to provide reasonable
D care which is not proved to be lacking in the present case –
Complainant led no evidence of experts to prove the alleged medical
negligence except their own affidavits – Medical record produced
does not show any omission in the manner of treatment – Experts of
different specialities and super-specialities of medicine were
available to treat the patient – Sole basis of finding the appellants
E
negligent was res ipsa loquitor which would not be applicable keeping
in view the treatment record produced by the hospital and the doctor
– There was never a stage when the patient was left unattended –
Digital Sub-Traction Angiography (DSA test) was conducted by the
hospital however, since it became dysfunctional, considering the
F critical condition of the patient, an alternative angiography test
was advised and conducted and the re-exploration was thus planned
– If the operation theatres were occupied at the time when the
operation of the patient was contemplated, it cannot be said that
there is a negligence on the part of the hospital – Order passed by
NCDRC set aside – Complaint dismissed.
G
Tort – res ipsa loquitor – Applicability of – Discussed.
Allowing the appeals, the Court
HELD: 1.1 The Commission while analyzing the evidence
observed that the complainant had filed evidence affidavits but
H
1118
BOMBAY HOSPITAL & MEDICAL RESEARCH CENTRE v. 1119
ASHA JAISWAL & ORS.

the Hospital and the Doctor, though have filed their written A
versions, but have not filed evidence by way of affidavits except
an affidavit of Dr. ‘K’. Such primary observation is itself
erroneous. The Hospital and the Doctor had filed their written
version by way of affidavit dated 7.1.2000 i.e., the same date on
which Dr. ‘K’ had filed an affidavit. The Commission has
B
overlooked the fact that written version is by way of an affidavit.
Later, the Hospital had also filed evidence affidavit on 13.07.2009
whereas the Doctor had filed a short affidavit on 30.8.2009
reiterating and confirming the statements, averments and the
contentions raised in the written version filed on 7.1.2000. Thus,
there is factual error in the order of the Commission. The basis C
of finding the Doctor negligent in providing medical care is not
sustainable as there are both legal and factual errors in the
findings recorded by the Commission. Gangrene was not found
to be impending after few days of admission to the Hospital but
even before the patient was admitted. The patient was in
D
critical condition when the Doctor was consulted on 21.4.1998
and surgery was thereafter performed within two days.
[Paras 13, 17 and 18][1131-B-D; 1132-G-H; 1133-B]
1.2 The non-working of the DSA machine and consequent
delay in performing the test cannot be said to be negligence on
the part of the Doctor or the Hospital. The DSA machine is a E
large, expensive and complicated machine which unfortunately
developed certain technical problem at the time when patient
had to be tested. Any machine can become non-functional because
of innumerable factors beyond the human control as the machines
involve various mechanical, electrical and electronic components. F
The DSA test was conducted in the Hospital on 22.4.1998 and
hence DSA machine cannot be said to be dysfunctional for a long
time. The alternative process to determine the blood flow was
carried out by angiography and the decision for re-exploration
was taken at 12.30 p.m. No fault can be attached to the Hospital
if the operation theatres were occupied when the patient was G
taken for surgery. Operation theatres cannot be presumed to be
available at all times. Therefore, non-availability of an emergency
operation theatre during the period when surgeries were being
performed on other patients is not a valid ground to hold the
H
1120 SUPREME COURT REPORTS [2021] 10 S.C.R.

A Hospital negligent in any manner. There is no proof that there
was any negligence in performing the surgery on 23.4.1998 or in
the process of re-exploration on 24.4.1998. The allegation is of
failure of the Doctor to take the follow-up action after surgery on
23.4.1998, a delayed decision to amputate the leg subsequent to
re-exploration on 24.4.1998, and the alleged undue foreign visit
B
of the Doctor. In respect to such contention of the Doctor being
on a foreign visit, it is well known a medical professional has to
upgrade himself with the latest development in his field which
may require him to attend conferences held both in and outside
the country. Mere fact that the Doctor had gone abroad cannot
C lead to an inference of medical negligence as the patient was
admitted in a hospital having specialists in multi-faculties. It is a
case where the patient was in serious condition impending
gangrene even before admission to the Hospital but even after
surgery and re-exploration, if the patient does not survive, the
fault cannot be fastened on the doctors as a case of medical
D
negligence. It is too much to expect from a doctor to remain on
the bed side of the patient throughout his stay in the hospital
which was being expected by the complainant here. A doctor is
expected to provide reasonable care which is not proved to be
lacking in any manner in the present case. [Paras 19, 23, 24 and
E 26][1133-C-F; 1134-G-H; 1135-A-B, G-H; 1136-A-B]
1.3 The sole basis of finding of negligence against the
Hospital is of res ipsa loquitor. Res ipsa loquitor is a rule of evidence.
The complainant had led no evidence of experts to prove the
alleged medical negligence except their own affidavits. The
F experts could have proved if any of the doctors in the Hospital
providing treatment to the patient were deficient or negligent in
service. A perusal of the medical record produced does not show
any omission in the manner of treatment. The experts of different
specialities and super-specialities of medicine were available to
treat and guide the course of treatment of the patient. The doctors
G are expected to take reasonable care but none of the professionals
can assure that the patient would overcome the surgical
procedures. Dr. ‘K’ has been attributed to have informed the
complainant that the patient’s legs were not working but Dr. ‘K’
denied all the averments by filing of an affidavit. The sole basis of
H finding the appellants negligent was res ipsa loquitor which would
BOMBAY HOSPITAL & MEDICAL RESEARCH CENTRE v. 1121
ASHA JAISWAL & ORS.

not be applicable herein keeping in view the treatment record A
produced by the Hospital and/or the Doctor. There was never a
stage when the patient was left unattended. The patient was in a
critical condition and if he could not survive even after surgery,
the blame cannot be passed on to the Hospital and the Doctor
who provided all possible treatment within their means and
B
capacity. The DSA test was conducted by the Hospital itself on
22.4.1998. However, since it became dysfunctional on 24.4.1998
and considering the critical condition of the patient, an alternative
angiography test was advised and conducted and the re-
exploration was thus planned. It is only a matter of chance that
all the four operation theatres of the Hospital were occupied when C
the patient was to undergo surgery. The expectation of the patient
to have an emergency operation theatre is not reasonable as the
hospital can provide only as many operation theatres as the patient
load warrants. If the operation theatres were occupied at the time
when the operation of the patient was contemplated, it cannot be
D
said that there is a negligence on the part of the Hospital. The
findings recorded by the Commission holding the Hospital and
the Doctor guilty of medical negligence are not sustainable in
law. The order passed by the Commission is set aside and the
complaint is dismissed. [Paras 27, 35-37][1136-B; 1144-A-H;
1145-A] E
Syad Akbar v. State of Karnataka (1980) 1 SCC 30 :
[1980] 1 SCR 95; Iffco Tokio General Insurance
Company Limited v. Pearl Beverages Limited (2021) 7
SCC 704 : 2021 (4 ) JT 345; Martin F. D’Souza v.
Mohd. Ishfaq (2009) 3 SCC 1 : [2009] 3 SCR 273;
Jacob Mathew v. State of Punjab and Anr (2005) 6 SCC F
1 : [2005] 2 Suppl. SCR 307; Arun Kumar Manglik v.
Chirayu Health and Medicare Private Limited and Anr.
(2019) 7 SCC 401 : [2019] 3 SCR 281; C.P. Sreekumar
(Dr.), MS (Ortho) v. S. Ramanujam (2009) 7 SCC 130
: [2009] 7 SCR 272; Kusum Sharma and Others v. Batra
Hospital and Medical Research Centre and Others G
(2010) 3 SCC 480 : [2010] 2 SCR 685; Dr. Harish
Kumar Khurana v. Joginder Singh & Others (2021) SCC
Online SC 673 – relied on.
Whitehouse v. Jordan and Anr [1981] 1 Weekly Law
Reports 246 – referred to. H
1122 SUPREME COURT REPORTS [2021] 10 S.C.R.

A Case Law Reference
[1980] 1 SCR 95 relied on Para 27
[2009] 3 SCR 273 relied on Para 29
[2005] 2 Suppl. SCR 307 relied on Para 30
[2019] 3 SCR 281 relied on Para 31
B
[2009] 7 SCR 272 relied on Para 32
[2010] 2 SCR 685 relied on Para 33
CIVIL APPELLATE JURISDICTION : Civil Appeal No.1658
of 2010.
C From the Judgment and Order dated 06.01.2010 of the National
Consumer Disputes Redressal Commission, New Delhi in Original
Petition No.251 of 1999.
With
Civil Appeal No.2322 of 2010.
D Siddharth Bhatnagar, Sr. Adv., Ms. Sonia Nigam, Ms. Neha
Khanelwal, Ms. Nadeem Afroz, Aditya Sidhra, Ms. Pracheta Kar, M/s
Karanjawala & Co., Ms. Bina Madhavan, S. Udaya Kumar Sagar, Ms.
Vishwaya Rao, M/s Lawyer S Knit & Co., Vishal Bhatnagar, Ashwani
Kumar, Ms. Iti Sharma, Anshul Dhatwalia, Ms. Ishu Manaksia, Anil
Kumar, Kamal Mohan Gupta, Advs. for the appearing parties.
E
The Judgment of the Court was delivered by
HEMANT GUPTA, J.
1. The present appeals are directed against an order passed by
the National Consumer Disputes Redressal Commission1 on 06.01.2010
against the appellants i.e., Bombay Hospital & Medical Research Centre2
F
and Dr. C. Anand Somaya3, directing to pay a sum of Rs. 14,18,491/-
along with interest @ 9% p.a. from the date of filing of the complaint till
the date of payment.
2. The complaint was filed before the Commission by the legal
heirs4 of the deceased - patient Dinesh Jaiswal5, alleging medical
G negligence on the part of the Hospital and the Doctor in treating the

1
For short, the ‘Commission’
2
For short, the ‘Hospital’
3
For short, the ‘Doctor’
4
For short, the ‘Complainant’
5
H For short, the ‘patient’
BOMBAY HOSPITAL & MEDICAL RESEARCH CENTRE v. 1123
ASHA JAISWAL & ORS. [HEMANT GUPTA, J.]

patient.The patient was admitted tothe Hospital on 22.04.1998 and A
breathed his last on 12.06.1998. The Hospital charged a sum of Rs.
4,08,800/- for the treatment of the patient during the period of his admission
in the Hospital. The said amount is included in and is part of the amount
of compensation awarded against the appellants herein.
3. The patient was taking treatment since 1990 for having B
difficulties in walking due to the pain and discomfort in legs. For his
complaint of inability to walk, a Colour Doppler Test was conducted on
13.04.1998 at Khemuka X-Ray & Ultrasound Clinic, Nagpur which
detected the following:
“Aneurismal dilatation of the lower abdominal aorta just above C
bifurcation is seen. The aneurism measures 5.4 x 2.6 in its
maximum dimensions.
Irregular thrombus is seen within the aneurism on colour flow
studies.
Prostate is normal in echo – pattern and measures 4 x 3 x 3cms. D
Prostatic capsule is intact. Urinary bladder is normal in capacity
and contour. Post void residual urine is not significant.
Impression: Mild hepatomegaly with aneurism of lower abdominal
aorta just above the bifurcation.”
E
4. Dr. K.G. Deshpande Memorial Center, Nagpur was consulted
by the patient on 15.04.1998 and Dr. Deshpande diagnosed the following:
“A case of Abd Aortic Aneurysum
Involvement on left side
with Left PVB (Embolism) F
H/O Trauma 1983,
Pain Left LL 1990 S/O Embolism
Vascular Duplex Seen S/O Large Abd. A. Aneurysum
G
6*3*5.1cm
Adv- Urgent Surgical repair of the aneurysum”
5. After diagnosis, Dr. Deshpande referred the patient to the
appellant-Doctor who is a Vascular Surgeon. The patient consulted the
appellant-Doctor on 21.4.1998. The Doctor ordered the admission of H
1124 SUPREME COURT REPORTS [2021] 10 S.C.R.

A the patient as an urgent case of aorta aneurysum. On 22.4.1998, the
Doctor advised urgent DSA/CAT Scan [Digital Sub-Traction Angiography
and Computerized Axial Tomography] and surgery after noticing the
following physical conditions:
“A 42 years old male with aorta pain left lower limb and right leg
B below knee.Gradual Claudication
BP – 100/80
Ischaemic changes both lower limbs. Seen with impending
Gangrene

C Both legs left muscles are tested.
………………………………….”
6. The Doctor after examining the patient recorded that there
were ischemic changes in both lower limbs and also noted an impending
gangrene. Subsequent to the pre-operative preparations, surgery was
D conducted on 23.04.1998 by a team of surgeonsincluding Dr.Partha and
Dr. Bindra, led by the appellant-Doctor. The operation notes read as
thus:
“On inspection there was a huge aneurysum on the latral aspect
on left side arising infra renal.
E It was densely adherent to the surrounding structure. The
aneurysum was directed out. The tape was passed around the
left Renal artery/vein for retraction. A tape was passed around
the aorta just below the renal artery and above the aneurysum.
Both the common iliac arteries were exposed. Tapes were passed
F around both the iliac arteries.
After achieving proper exposure/slinging around all the vessels.
The aorta was iron clamped just infra-renally. The aneurysum
opened out. The aorta transected and both illiacs transected. (A
PTFE ‘Y’ Limb Graft) was sutured in place. The short main limb
G to the aorta using continuous prolure and both the limbs of the
graft were sutured to the common iliacs end to end anastomosis
on right side. After checking the flow in the graft after suture the
upper end the lower anastomosis were done.
On the left side, the side of the graft was sutured the end of the
H common iliac. The limb of the graft further brought down through
BOMBAY HOSPITAL & MEDICAL RESEARCH CENTRE v. 1125
ASHA JAISWAL & ORS. [HEMANT GUPTA, J.]

a tunnel to the femoral artery and the end of the graft sutured to A
the side of the femoral artery.
After achieving proper haemostasis and checking the pulsation.
Intra-operatively, the abdomen closed using drainage tubes.
The patient was later shifted to recovery room on ventilator with B
stable vital signs.”
7. It is the case of the complainant that on 24.4.1998 at about 4
am, that is the night after surgery, the nurse who was attending the
patient observed that the pulsation of the patient had become feeble and
body temperature was low and the lower limbs had gone cold. The relatives C
were informed at about 7 a.m. that the patient was unconscious, legs
were cold with no pulsation. The complainant further alleged that the
nurse had informed the Doctor at 4 am but he came only at 9.30 a.m.
The patient upon assessment by the Doctor was directed to get second
DSA test but DSA machine was out of order. Hence, the Doctor advised
angiography but the patient was made to wait for both DSA test as well D
as for angiography. One Dr. B.K. Goyal examined the patient and
reported that the patient had probably developed block of abdominal
aorta.
8. The angiography conducted at 12.30 pm on 24.4.1998 showed
a block (clot) at the graft due to which the blood supply to the lower E
limbs had totally stopped. The complainant contended that the earlier
surgery was not performed correctly and there was negligence in
conducting the same. A decision was taken to re-explore the earlier
surgery done at about 3:30 pm but since all the four operation theatres
were occupied, he could only be taken to the operation theatre for re- F
grafting at 5.30 p.m. As there was no pulsation in the graft and there
was clot in the graft extending into both limbs of the graft, a fresh graft
was sutured and the patient was shifted to recovery room and put on
ventilator.
9. It was contended by the Hospital that the patient was in the
G
care of qualified doctors such as Dr. Nemish Shah, Dr. J. A.Pachore,
Dr. A.L. Kripalani, Dr. Partha, Dr. H.S. Bindra and many others
throughout his course of admission and no stone was left unturned to
ascertain the complications and treat the same. Various specialist doctors
were treating the patient and medicines/treatment was timely regulated
and changed as and when required on a daily basis. Regular daily dialysis, H
1126 SUPREME COURT REPORTS [2021] 10 S.C.R.

A dressing of wounds etc. were also done. However, unfortunately, despite
the best efforts of the qualified doctors, the patient did not respond to the
treatment and passed away on 12.06.1998.
10. The complainant in the complaint enumerated the facts
suggesting negligence and deficiency of service on the part of the
B appellants. The averments made by the complainant and the
corresponding reply by the Doctor is extracted hereinunder:

C

D

E

F

G

H
BOMBAY HOSPITAL & MEDICAL RESEARCH CENTRE v. 1127
ASHA JAISWAL & ORS. [HEMANT GUPTA, J.]

A

B

C

D

E

F

G

H
1128 SUPREME COURT REPORTS [2021] 10 S.C.R.

A

B

C

D

E

F

G

H
BOMBAY HOSPITAL & MEDICAL RESEARCH CENTRE v. 1129
ASHA JAISWAL & ORS. [HEMANT GUPTA, J.]

A

B

C

D

E

F

G

H
1130 SUPREME COURT REPORTS [2021] 10 S.C.R.

A

B

C

D

E

11. The affidavit of the complainant is on the same lines as the
averments made in the complaint before the Commission.
12. The grievance of the complainant against the appellants can
F be summarized under the following heads:
(a) The Doctor had not examined the patient after surgery;
(b) The patient was made to stand in queue for DSA test despite
his critical condition whereafter the machine was found to
be dysfunctional;
G
(c) Angiography was performed after 8 hours of discovering
that blood supply has stopped;
(d) The Hospital delayed treatment by 12 hours as no operation
theatre was available;
H
BOMBAY HOSPITAL & MEDICAL RESEARCH CENTRE v. 1131
ASHA JAISWAL & ORS. [HEMANT GUPTA, J.]

(e) The Doctor did not attend the patient and left him in the A
care of inexperienced doctors;
(f) Doctor failed to amputate legs on time on account of
gangrene and did not try to treat the gangrene; and
(g) The reliance on the principle of res ipsa loquitor to support
the finding that it is a case of medical negligence. B

13. Learned Commission while analyzing the evidence observed
that the complainant had filed evidence affidavits but the Hospital and
the Doctor, though have filed their written versions, but have not filed
evidence by way of affidavits except an affidavit of Dr. Kripalani. We
however find at the outset that such primary observation is itself C
erroneous. The Hospital and the Doctor had filed their written version
by way of affidavit dated 7.1.2000 i.e., the same date on which Dr.
Kripalani had filed an affidavit. The Commission has overlooked the
fact that written version is by way of an affidavit. Later, the Hospital
had also filed evidence affidavit on 13.07.2009 whereas the Doctor had D
filed a short affidavit on 30.8.2009 reiterating and confirming the
statements, averments and the contentions raised in the written version
filed on 7.1.2000. Thus, there is factual error in the order of the
Commission.
14. The Commission had commented adversely against the Doctor E
that he had not seen or attended the patient for several days before his
departure for his tour to U.S.A and U.K for about a month and had not
even indicated the name of any super specialist in his field who should
look after the patient in his absence. The Commission mentioned that
the Doctor observed at the first instance within a couple of days of
admission at the Hospital that there was impending gangrene and that F
Dr. Partha and Dr. Bindra did not take timely decision for amputation of
legs and by the time Dr. Pachore was consulted, it was too late. Moreover,
it was also noted that Dr. Pachore had scolded Dr. Partha for the delay
in consulting him as even if the amputation was done at such belated
occasion, nothing could be said about the survival of the patient. G
15. The Commission opined that considering the conditions in India,
it is very difficult to secure the presence of an expert doctor to file an
affidavit against another expert doctor and thus it would be a case of res
ipsa loquitor. It was mentioned that though the Doctor was present at
Mumbai from 29.4.1998 to 9.5.1998, he did not give advice for amputation
H
1132 SUPREME COURT REPORTS [2021] 10 S.C.R.

A of the legs and thereafter from 9.5.1998 to 7.6.1998, he went to U.S.A
and U.K to attend medical conferences. He had visited the patient only
on 8.6.1998 after several days of amputation. The Commission relied
upon judgment in Whitehouse v. Jordanand Anr.6 to apply the principle
of res ipsa loquitor. A reference was also made to an article “Repair of
Infraneral Abdominal Aortic Aneurysms (AAAs): Introduction” to say
B
that the mortality associated with repair of AAAs has been greatly reduced
by improvements in preoperative evaluation and perioperative care.
Another text book by Robert B. Rutherford was referred to notethat
paraplegia was a rare complication in the case of Aneurysms whereas
in the present matter, paraplegia occurred instantaneously.
C 16. Learned counsel for the appellants herein argued that the
Hospital is a renowned hospital having four operation theatres and advance
machines including DSA. Three other hospitals in Mumbai such as Jaslok
Hospital, Hinduja Hospital and Breach Candy Hospital alone had DSA
machines at the relevant time.The Hospital in its affidavit had inter alia
D mentioned that the DSA test is not a bed side test. The patient has to be
carefully shifted to the cardiac cauterization department where the DSA
machine was installed. The patient hence had to be stabilized before he
was shifted to DSA department. Since the patient was put on ventilator
and on several support medications, it was not possible to immediately
undergo the DSA test. But when the patient was taken for DSA test, the
E machine developed certaintechnical problem. Since the DSA machine
was not working, angiography was thought to be the best possible test
and was thus conducted. The Hospital had specialized staffin all branches
of medicine and the medical assistance as was required from time to
time including nephrology, orthopedics etc. was provided to the patient.
F It was argued that the professional competence of Doctor has not been
doubted even by the Commission but two factors have been taken against
the Doctor for holding him negligent; first, that he did not visit the patient
soon after the surgery till 9/9.30 a.m. on the next day to verify the blood
flow after the surgery, and second, he did not visit the patient from
29.4.1998 to 9.5.1998 when he was in Mumbai and from 9.5.1998 to
G 7.6.1998 when he went abroad for attending medical conferences.
17. We do not find that the basis of finding the Doctor negligent in
providing medical care is sustainable as there are both legal and factual
errors in the findings recorded by the Commission.
6
[1981] 1 Weekly Law Reports 246
H
BOMBAY HOSPITAL & MEDICAL RESEARCH CENTRE v. 1133
ASHA JAISWAL & ORS. [HEMANT GUPTA, J.]

18. Dr. K.G. Deshpande had referred the patient to the Doctor on A
15.4.1998 with advice of urgent surgical repair of Aneurysum. The patient
had taken another six days to consult Doctor at Mumbai and it was only
on 21.4.1998 that the patient was examined by the Doctor and was
advised immediate Aneurysmectomy in view of the impending gangrene.
Therefore, gangrene was not found to be impending after few days of
B
admission to the Hospital but even before the patient was admitted. The
patient was in critical condition when the Doctor was consulted on
21.4.1998 and surgery was thereafter performed within two days.
19. Further, the non-working of the DSA machine and consequent
delay in performing the test cannot be said to be negligence on the part
of the Doctor or the Hospital. The DSA machine is a large, expensive C
and complicated machine which unfortunately developed certain technical
problem at the time when patient had to be tested. Any machine can
become non-functional because of innumerable factors beyond the human
control as the machines involve various mechanical, electrical and
electronic components. The DSA test was conducted in the Hospital on D
22.4.1998 and hence DSA machine cannot be said to be dysfunctional
for a long time. The alternative process to determine the blood flow was
carried out by angiography and the decision for re-exploration was taken
at 12.30 p.m. No fault can be attached to the Hospital if the operation
theatres were occupied when the patient was taken for surgery. Operation
theatres cannot be presumed to be available at all times. Therefore, E
non-availability of an emergency operation theatre during the period when
surgeries were being performed on other patients is not a valid ground to
hold the Hospital negligent in any manner.
20. The re-exploration of operative notes dated 24.4.1998 shows
that a fresh graft was sutured in place after establishing the flow. The F
patient was then put on ventilator and shifted to recovery room. On
25.4.1998, a note by Dr. Bindra indicated that the patient was seen by
Dr. Shruti. It was noted that there wasno movement in both the legs but
had pin prick sensation and below mid-thigh, sensation was present on
the lower limbs. Further, legs were warm till the ankles and the feet G
were cold. On 27.4.1998, Dr. H.S. Bindra had sought consultation from
Dr. Khadilkar giving case history that limbs were warm and that the
patient had pain in the lumber region and was also feeling tightness in
both the lower limbs. Dr. Khadilkar noted his impressions that it was
very likely lower spinal cord/conus syndrome and thereafter advised
MRI of the lower cervical spine and till then to continue with the medicine H
1134 SUPREME COURT REPORTS [2021] 10 S.C.R.

A pentosiflin and lomodex and for muscle ischemia – high CK and
Myoglobulin. Dr. Khadilkar suggested the same treatment to continue
on 28.4.98. On 29.4.1998, Dr. Khadilkar had reported the sensory level
dropped to upper 1/3rd of the thigh and that there was no power in limbs.
No changes were however seen in the MRI report. It was also reported
that probably myonecrosis was playing more significant role in the
B
weakness.The patient was put on dialysis thereafter.
21. The patient was examined by Dr. Kripalani or his unit from
1.5.1998 and thereafter formany days till 23.5.1998. The dialysis was
being conducted in the meantime as well. The patient was being
monitored by Dr. Bindra throughout. Subsequently, the patient was
C referred to Dr. Amarapurkaron 12.5.1998when it was noted that Ischemic
Injury to liver needed no treatment on 13.5.1998.The patient was then
referred to Dr. Amin for enternal nuirisim on 16.5.1998.
22. It was further noted on 18.05.1998 from Colour Flow Imaging
of limb arteries that both common femoral, superficial femoral and
D popliteal arteries werepatent. The flow in both posterior tibial arteries
was of low velocity and of venous type, suggesting refilled flow. Dr.
Pachore also examined the patient on 27.5.1998 and observed that the
patient had wet gangrene below knee and was thus advised amputation.
On 29.5.1998, the patient was operated for amputation below the knee
E at the level of tibial tuberosity for treatment of wet gangrene and the
Bilateral Guillatine Amputation was carried out. On 30.05.1998, it was
noted that the acute renal failure was improving. Further septicemia
was diagnosed on 30.05.1998. Later, on 12.06.1998, the patient was put
on ventilator and he subsequently passed away at 9.30 pm due to
septicemic shock.
F
23. It is to be noted that it is not the case of the complainant that
Doctor was not possessed of requisite skill in carrying out the operation.
In fact, the patient was referred to him by Dr. Deshpande keeping in
view the expertise of the Doctor in vascular surgery. There is no proof
that there was any negligence in performing the surgery on 23.4.1998 or
G in the process of re-exploration on 24.4.1998. The allegation is of failure
of the Doctor to take the follow-up action after surgery on 23.4.1998, a
delayed decision to amputate the leg subsequent to re-exploration on
24.4.1998,and the alleged undue foreign visit of the Doctor.
24. In respect to such contention of the Doctor being on a foreign
H visit, it is well known a medical professional has to upgrade himself with
BOMBAY HOSPITAL & MEDICAL RESEARCH CENTRE v. 1135
ASHA JAISWAL & ORS. [HEMANT GUPTA, J.]

the latest development in his field which may require him to attend A
conferences held both in and outside the country. Mere fact that the
Doctor had gone abroad cannot lead to an inference of medical negligence
as the patient was admitted in a hospital having specialists in multi-
faculties. Two doctors from the unit of the Doctor namely Dr. Bindra
and Dr. Partha, both post graduates, were present to attend to the patient.
B
Moreover, as per the stand of the Hospital and the Doctor, the patient
was kept in Cardio Vascular Intensive Care Unit after the surgery and
was continuously being monitored by qualified post-graduate doctors
including Dr. Nemish Shah, Head of Cardio Vascular Surgery. The patient
was even attended by other specialist doctors as well which is evident
from the brief summary of treatment given to the patient. The experts in C
the other fields have been consulted from time to time and the treatment
was modulated accordingly. In spite of the treatment, if the patient had
not survived, the doctors cannot be blamed as even the doctors with the
best of their abilities cannot prevent the inevitable.
25. The blood was flowing properly soon after the surgery but D
later the formation of clot was confirmed after the angiography test was
conducted at 12.30 p.m. An immediate decision was taken for re-
exploration at 3.30 p.m. The allegation of delay in treatment after the
surgery seems to be baseless as the patient was being administered
antibiotics like Metrogyl 400 and Piperacillin Injection which are used
for treatment in gangrene. Dr. Kripalani in his affidavit denied the E
allegation leveled by the complainant. Dr. Kripalani had treated patient
continuously including carrying out the dialysis. In respect of the allegation
that doctors failed to amputate legs on time, efforts were being made to
save the limbs as amputation is considered as the last resort. The
amputation was done as per the advice of Dr. Pachore. In the present F
era of super-specialization, one doctor is not a solution for all problems
of a patient. Each problem is dealt with by an expert in the concerned
field and that is what is apparent from the medical record. The stand of
the complainant is that since surgery was performed by a doctor, he
alone would be responsible for different aspects of the treatment required
and given to the patient. However, it is an incorrect assumption to be G
made.
26. It is a case where the patient was in serious condition impending
gangrene even before admission to the Hospital but even after surgery
and re-exploration, if the patient does not survive, the fault cannot be
H
1136 SUPREME COURT REPORTS [2021] 10 S.C.R.

A fastened on the doctors as a case of medical negligence. It is too much
to expect from a doctor to remain on the bed side of the patient throughout
his stay in the hospital which was being expected by the complainant
here. A doctor is expected to provide reasonable care which is not proved
to be lacking in any manner in the present case.
B 27. The sole basis of finding of negligence against the Hospital is
of res ipsa loquitor. It is to be noted that res ipsa loquitor is a rule of
evidence. This Court in a judgment reported as Syad Akbar v. State of
Karnataka7 explained the principle in a criminal trial as under:
“19. As a rule, mere proof that an event has happened or an
C accident has occurred, the cause of which is unknown, is not
evidence of negligence. But the peculiar circumstances constituting
the event or accident, in a particular case, may themselves proclaim
in concordant, clear and unambiguous voices the negligence of
somebody as the cause of the event or accident. It is to such
cases that the maxim res ipsa loquitur may apply, if the cause of
D the accident is unknown and no reasonable explanation as to the
cause is coming forth from the defendant. To emphasise the point,
it may be reiterated that in such cases, the event or accident must
be of a kind which does not happen in the ordinary course of
things if those who have the management and control use due
E care. But, according to some decisions, satisfaction of this condition
alone is not sufficient for res ipsa to come into play and it has to
be further satisfied that the event which caused the accident was
within the defendant’s control. The reason for this second
requirement is that where the defendant has control of the thing
which caused the injury, he is in a better position than the plaintiff
F to explain how the accident occurred. Instances of such special
kind of accidents which “tell their own story” of being offsprings
of negligence, are furnished by cases, such as where a motor
vehicle mounts or projects over a pavement and hurts somebody
there or travelling in the vehicle; one car ramming another from
G behind, or even a head-on collision on the wrong side of the road.
(See per Lord Normand in Barkway v. South Wales Transport
Co. [(1950) 1 All ER 392, 399] ; Cream v. Smith [(1961) 8 AER
349] ;Richley v. Faull [(1965) 1 WLR 1454 : (1965) 3 All ER 109])
7
(1980) 1 SCC 30
H
BOMBAY HOSPITAL & MEDICAL RESEARCH CENTRE v. 1137
ASHA JAISWAL & ORS. [HEMANT GUPTA, J.]

20. Thus, for the application of the maxim res ipsa loquitur “no A
less important a requirement is that the res must not only bespeak
negligence, but pin it on the defendant”.
xxx xxx xxx
26. From the above conspectus, two lines of approach in regard
to the application and effect of the maxim res ipsa loquitur are discernible. B
According to the first, where the maxim applies, it operates as an exception
to the general rule that the burden of proof of the alleged negligence is,
in the first instance, on the plaintiff. In this view, if the nature of an
accident is such that the mere happening of it is evidence of negligence,
such as, where a motor vehicle without apparent cause leaves the C
highway, or overturns or in fair visibility runs into an obstacle; or brushes
the branches of an overhanging tree, resulting in injury, or where there is
a duty on the defendant to exercise care, and the circumstances in which
the injury complained of happened are such that with the exercise of the
requisite care no risk would in the ordinary course ensue, the burden
shifts or is in the first instance on the defendant to disprove his liability. D
Such shifting or casting of the burden on the defendant is on account of
a presumption of law and fact arising against the defendant from the
constituent circumstances of the accident itself, which bespeak negligence
of the defendant. This is the view taken in several decisions of English
courts. [For instance, see Burke v. Manchester, Sheffield & Lincolnshire E
Rail Co. [(1870) 22 LJ 442] ; Moore v.R. Fox & Sons [(1956) 1 QB 596
: (1956) 1 All ER 182] . Also see paras 70, 79 and 80 of Halsbury’s
Laws of England, Third Edn., Vol. 28, and the rulings mentioned in the
footnotes thereunder.]
27. According to the other line of approach, res ipsa loquitur is F
not a special rule of substantive law; that functionally, it is only an aid in
the evaluation of evidence, “an application of the general method of
inferring one or more facts in issue from circumstances proved in
evidence”. In this view, the maxim res ipsa loquitur does not require
the raising of any presumption of law which must shift the onus
on the defendant. It only, when applied appropriately, allows the G
drawing of a permissive inference of fact, as distinguished from
a mandatory presumption properly so-called, having regard to the totality
of the circumstances and probabilities of the case. Res ipsa is only a
means of estimating logical probability from the circumstances of the
accident. Looked at from this angle, the phrase (as Lord Justice Kennedy H
1138 SUPREME COURT REPORTS [2021] 10 S.C.R.

A put it [Russel v. London & South Western Railway Co, (1908) 24 TLR
548] ) only means, “that there is, in the circumstances of the particular
case, some evidence which, viewed not as a matter of conjecture, but of
reasonable argument, makes it more probable that there was some
negligence, upon the facts as shown and undisputed, than that the
occurrence took place without negligence .... It means that the
B
circumstances are, so to speak, eloquent of the negligence of somebody
who brought about the state of things which is complained of.”
28. Recently, a three Judge Bench in a judgment reported as Iffco
Tokio General Insurance Company Limited v. Pearl Beverages
Limited8 approved the aforesaid judgment in a case of medical negligence
C being examined by the consumer fora. It was held as under:
“86. Thus, it is used in cases of tort and where the facts without
anything more clearly and unerringly point to negligence. The
principle of res ipsa loquitur, as such, appears to be inapposite,
when, what is in question, is whether driver was under the influence
D of alcohol. It may be another matter that though the principle as
such is inapplicable, the manner in which the accident occurred
may along with other circumstances point to the driver being under
the influence of alcohol.”
29. In Martin F. D’Souza v. Mohd. Ishfaq9, this court observed
E thatthe doctor cannot be held liable for medical negligence by applying
the doctrine of res ipsa loquitur for the reason that a patient has not
favourably responded to a treatment given by a doctor or a surgery has
failed. There is a tendency to blame the doctor when a patient dies or
suffers some mishap. This is an intolerant conduct of the family members
F to not accept the death in such cases. The increased cases of manhandling
of medical professionals who worked day and night without their comfort
has been very well seen in this pandemic. This Court held as under:-
“40. Simply because a patient has not favourably responded to a
treatment given by a doctor or a surgery has failed, the doctor
G cannot be held straightaway 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
8
(2021) 7 SCC 704
9
H (2009) 3 SCC 1
BOMBAY HOSPITAL & MEDICAL RESEARCH CENTRE v. 1139
ASHA JAISWAL & ORS. [HEMANT GUPTA, J.]

the professional would be at stake. A single failure may cost him A
dear in his lapse.
xxx xxx xxx
42. When a patient dies or suffers some mishap, there is a tendency
to blame the doctor for this. Things have gone wrong and,
therefore, somebody must be punished for it. However, it is well B
known that even the best professionals, what to say of the average
professional, sometimes have failures. A lawyer cannot win every
case in his professional career but surely he cannot be penalised
for losing a case provided he appeared in it and made his
submissions.” C
30. In case of medical negligence, this Court in a celebrated
judgment reported as Jacob Mathew v. State of Punjab and Anr.10
held that simple lack of care, an error of judgment or an accident, is not
a proof of negligence on the part of a medical professional. The Court
held as under: D
“48. We sum up our 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 E
not do. The definition of negligence as given in Law of Torts,
Ratanlal & Dhirajlal (edited by Justice G.P. Singh), referred to
hereinabove, holds good. Negligence becomes actionable on
account of injury resulting from the act or omission amounting to
negligence attributable to the person sued. The essential F
components of negligence are three: “duty”, “breach” and
“resulting damage”.
(2) Negligence in the context of the 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,
G
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
10
(2005) 6 SCC 1 H
1140 SUPREME COURT REPORTS [2021] 10 S.C.R.

A 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
B
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
C 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
D
have been used.
xxx xxx xxx
(4) The test for determining medical negligence as laid down
in Bolam case [(1957) 1 WLR 582 : (1957) 2 All ER 118 (QBD)]
E , WLR at p. 586 [ [Ed.: Also at All ER p. 121 D-F and set out in
para 19, p. 19 herein.]] holds good in its applicability in India.
xxx xxx xxx
(8) Res ipsa loquitur is only a rule of evidence and operates in
the domain of civil law, specially in cases of torts and helps in
F determining the onus of proof in actions relating to negligence. It
cannot be pressed in service for determining per se the liability
for negligence within the domain of criminal law. Res ipsa
loquitur has, if at all, a limited application in trial on a charge of
criminal negligence.”
G 31. In another judgment reported as Arun Kumar Manglik v.
Chirayu Health and Medicare Private Limited and Anr.11, this Court
held that the standard of care as enunciated in Bolam case must evolve
in consonance with its subsequent interpretation by English and Indian
Courts. The threshold to prove unreasonableness is set with due regard
11
H (2019) 7 SCC 401
BOMBAY HOSPITAL & MEDICAL RESEARCH CENTRE v. 1141
ASHA JAISWAL & ORS. [HEMANT GUPTA, J.]

to the risks associated with medical treatment and the conditions under A
which medical professionals’ function. The Court held as under:
“45. In the practice of medicine, there could be varying approaches
to treatment. There can be a genuine difference of opinion.
However, while adopting a course of treatment, the medical
professional must ensure that it is not unreasonable. The threshold B
to prove unreasonableness is set with due regard to the risks
associated with medical treatment and the conditions under which
medical professionals function. This is to avoid a situation where
doctors resort to “defensive medicine” to avoid claims of
negligence, often to the detriment of the patient. Hence, in a
specific case where unreasonableness in professional conduct has C
been proven with regard to the circumstances of that case, a
professional cannot escape liability for medical evidence merely
by relying on a body of professional opinion.”
32. In C.P. Sreekumar (Dr.), MS (Ortho) v. S. Ramanujam12,
this Court held that the Commission ought not to presume that the D
allegations in the complaint are inviolable truth even though they remained
unsupported by any evidence. This Court heldas under:
“37. We find from a reading of the order of the Commission that
it proceeded on the basis that whatever had been alleged in the
complaint by the respondent was in fact the inviolable truth even E
though it remained unsupported by any evidence. As already
observed in Jacob Mathew case [(2005) 6 SCC 1 : 2005 SCC
(Cri) 1369] the onus to prove medical negligence lies largely on
the claimant and that this onus can be discharged by leading cogent
evidence. A mere averment in a complaint which is denied by the F
other side can, by no stretch of imagination, be said to be evidence
by which the case of the complainant can be said to be proved. It
is the obligation of the complainant to provide the facta
probanda as well as the facta probantia.”
33. In another judgment reported as Kusum Sharma and Others G
v. Batra Hospital and Medical Research Centre and Others13, a
complaint was filed attributing medical negligence to a doctor who
performed the surgery but while performing surgery, the tumour was
12
(2009) 7 SCC 130
13
(2010) 3 SCC 480 H
1142 SUPREME COURT REPORTS [2021] 10 S.C.R.

A found to be malignant. The patient died later on after prolonged treatment
in different hospitals. This Court held as under:
“47. Medical science has conferred great benefits on mankind,
but these benefits are attended by considerable risks. Every
surgical operation is attended by risks. We cannot take the benefits
B without taking risks. Every advancement in technique is also
attended by risks.
xxx xxx xxx
72. The ratio of Bolam case [(1957) 1 WLR 582 : (1957) 2 All
ER 118] is that it is enough for the defendant to show that the
C 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 the respondent charged with
negligence acted in accordance with the general and approved
practice is enough to clear him of the charge. Two things are
D pertinent to be noted. Firstly, the standard of care, when 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. Secondly,
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 point of time on which it is suggested
E as should have been used.
xxx xxx xxx
78. It is a matter of common knowledge that after happening of
some unfortunate event, there is a marked tendency to look for a
F human factor to blame for an untoward event, a tendency which
is closely linked with the desire to punish. Things have gone wrong
and, therefore, somebody must be found to answer for it. A
professional deserves total protection. The Penal Code, 1860 has
taken care to ensure that people who act in good faith should not
be punished. Sections 88, 92 and 370 of the Penal Code give
G adequate protection to the professionals and particularly medical
professionals.”
34. Recently, this Court in a judgment reported as Dr. Harish
Kumar Khurana v. Joginder Singh & Others14 held that hospital and
14
(2021) SCC On line SC 673
H
BOMBAY HOSPITAL & MEDICAL RESEARCH CENTRE v. 1143
ASHA JAISWAL & ORS. [HEMANT GUPTA, J.]

the doctors are required to exercise sufficient care in treating the patient A
in all circumstances. However, in an unfortunate case, death may occur.
It is necessary that sufficient material or medical evidence should be
available before the adjudicating authority to arrive at the conclusion
that death is due to medical negligence. Every death of a patient cannot
on the face of it be considered to be medical negligence. The Court held
B
as under:
“11. …….. Ordinarily an accident means an unintended and
unforeseen injurious occurrence, something that does not occur
in the usual course of events or that could not be reasonably
anticipated. The learned counsel has also referred to the decision
in Martin F.D’Souza v. Mohd. Ishfaq, (2009) 3 SCC 1 wherein it C
is stated that simply because the patient has not favourably
responded to a treatment given by doctor or a surgery has failed,
the doctor cannot be held straight away liable for medical
negligence by applying the doctrine of Res Ipsa Loquitor. It is
further observed therein that sometimes despite best efforts the D
treatment of a doctor fails and the same does not mean that the
doctor or the surgeon must be held guilty of medical negligence
unless there is some strong evidence to suggest that the doctor is
negligent.
E
xxx xxx xxx
14. Having noted the decisions relied upon by the learned counsel
for the parties, it is clear that in 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. F
To indicate negligence there should be material available on record
or else appropriate medical evidence should be tendered. The
negligence alleged should be so glaring, in which event the principle
of res ipsa loquitur could be made applicable and not based on
perception. In the instant case, apart from the allegations made G
by the claimants before the NCDRC both in the complaint and in
the affidavit filed in the proceedings, there is no other medical
evidence tendered by the complainant to indicate negligence on
the part of the doctors who, on their own behalf had explained
their position relating to the medical process in their affidavit to
explain there was no negligence. ………………” H
1144 SUPREME COURT REPORTS [2021] 10 S.C.R.

A 35. It may be mentioned here that the complainant had led no
evidence of experts to prove the alleged medical negligence except their
own affidavits.The experts could have proved if any of the doctors in
the Hospital providing treatment to the patient were deficient or negligent
in service. A perusal of the medical record produced does not show any
omission in the manner of treatment. The experts of different specialities
B
and super-specialities of medicine were available to treat and guidethe
course of treatment of the patient. The doctors are expected to take
reasonable care but none of the professionals can assure that the patient
would overcome the surgical procedures. Dr. Kripalani has been attributed
to have informed the complainant that the patient’s legs were not working
C but Dr. Kripalani denied all the averments by filing of an affidavit.
36. As discussed above, the sole basis of finding the appellants
negligent was res ipsa loquitor which would not be applicable herein
keeping in view the treatment record produced by the Hospital and/or
the Doctor. There was never a stage when the patient was left
D unattended. The patient was in a critical condition and if he could not
survive even after surgery, the blame cannot be passed on to the Hospital
and the Doctor who provided all possible treatment within their means
and capacity. The DSA test was conducted by the Hospital itself on
22.4.1998. However, since it became dysfunctional on 24.4.1998 and
considering the critical condition of the patient, an alternative angiography
E test was advised and conducted and the re-exploration was thus planned.
It is only a matter of chance that all the four operation theatres of the
Hospital were occupied when the patient was to undergo surgery. We
do not find that the expectation of the patient to have an emergency
operation theatre is reasonable as the hospital can provide only as many
F operation theatres as the patient load warrants. If the operation theatres
were occupied at the time when the operation of the patient was
contemplated, it cannot be said that there is a negligence on the part of
the Hospital. A team of specialist doctors was available and also have
attended to the patient but unfortunately nature had the last word and
the patient breathed his last. The family may not have coped with the
G loss of their loved one, but the Hospital and the Doctor cannot be blamed
as they provided the requisite care at all given times. No doctor can
assure life to his patient but can only attempt to treat his patient to the
best of his ability which was being done in the present case as well.
37. Therefore, we find that the findings recorded by the
H Commission holding the Hospital and the Doctor guilty of medical
BOMBAY HOSPITAL & MEDICAL RESEARCH CENTRE v. 1145
ASHA JAISWAL & ORS. [HEMANT GUPTA, J.]

negligence are not sustainable in law. Consequently, the present appeals A
are allowed. The order passed by the Commission is set aside and the
complaint is dismissed.
38. By virtue of an interim order passed by this Court on 8.3.2010,
a sum of Rs. 5 lakhs was disbursed to the complainant. The said amount
is ordered to be treated as ex gratia payment to the complainant and not B
to be recovered back by either the Hospital or the Doctor.

Divya Pandey Appeals allowed.

C

D

E

F

G

H