MAHARAJA AGRASEN HOSPITAL & ORS. versus MASTER RISHABH SHARMA & ORS.

Citation: [2019] 16 S.C.R. 1185 · Decided: 16-12-2019 · Supreme Court of India · Bench: UDAY UMESH LALIT, INDU MALHOTRA · Disposal: Disposed off

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Judgment (excerpt)

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MAHARAJA AGRASEN HOSPITAL & ORS.
v.
MASTER RISHABH SHARMA & ORS.
(Civil Appeal No. 6619 of 2016)
DECEMBER 16, 2019
[UDAY UMESH LALIT AND INDU MALHOTRA, JJ.]
Medical Negligence – Respondents Nos. 1 to 3-complainants
filed a complaint of medical negligence against appellant No. 1-
hospital and appellant Nos. 2 to 4-the Paediatricians and
ophthalmologist doctors working with the hospital and respondent
No. 4-the Gynaecologist before the National Consumer Disputes
Redressal Commission – NCDRC held the appellant no. 1-hospital
guilty of medical negligence, since they failed to carry out the
mandatory check up of Retinopathy of Prematurity (ROP) on
respondent No. 1, who was a pre-term baby, which led to his total
blindness and appellants Nos. 1 to 4 were jointly held liable to
pay the total amount of Rs. 64,00,000/- – On appeal, held: The
appellants owed a legal duty of care to the complainants/
respondents Nos. 1 & 2 – The failure to inform the respondent
No.2- mother of the respondent No. 1 of the necessity to have the
ROP test conducted in the case of a pre-term baby and the high
risk involved which could lead total blindness, was a breach of
duty – Furthermore, the failure to carry out the ROP test, which is
mandated by standard protocol, while the baby was under their
direct care and supervision from birth till he was 3 and 1/2 months
old, amounted to gross negligence by the doctors and deficiency
of service by the hospital – Besides, there was inordinate delay of
over 2 years by appellant Nos. 1 in making the medical records of
respondent no.1 available to respondent no.2 and same would
constitute a grave professional misconduct u/regn. 7 of the IMC
regulations, apart from being a gross deficiency in service – The
findings of the NCDRC affirmed and compensation of Rs.
76,00,000/- awarded to respondent no. 1 – Consumer Protection
– Deficiency in service – Indian Medical Council (Professional
Conduct, Etiquettes and Ethics) Regulations, 2002 – Regulation
1.3.2.
   [2019] 16 S.C.R. 1185
1185
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SUPREME COURT REPORTS
[2019] 16 S.C.R.
Medical negligence – Constituents of – Held: Medical
negligence comprises of the following constituents: (1) A legal duty
to exercise due care on the part of the medical professional; (2)
failure to inform the patient of the risks involved; (3) the patient
suffers damage as a consequence of the undisclosed risk by the
medical professional; (4) if the risk had been disclosed, the patient
would have avoided the injury; (5) breach of the said duty would
give rise to an actionable claim of negligence.
Medical negligence – Cause of action for – Held: The cause
of action for negligence arises only when damage occurs, since
damage is a necessary ingredient of this tort – In a complaint of
medical negligence, the burden is on the complainant to prove
breach of duty, injury and causation – The injury must be
sufficiently proximate to the medical practitioner’s breach of duty
– In the absence of evidence to the contrary adduced by the
opposite party, an inference of causation may be drawn even
though positive or scientific proof is lacking.
Doctrines/Principles – Vicarious Liability – discussed.
Medical Negligence – Bolam Test – discussed.
Disposing of the appeals, the Court
Inordinate Delay in Supply of Medical Records
HELD: 1.1 There was an inordinate delay of over 2 years
in making the Medical Records of Respondent No.1 available
to the Respondent No.2-Complainant. Regulation 1.3.2 of the
Indian Medical Council (Professional Conduct, Etiquettes and
Ethics) Regulations, 2002 casts a statutory obligation upon every
doctor/hospital to provide medical records within 72 hours of the
request being made by the patient. [Para 11.1] [1203-C-D]
1.2 As per Regulation 7, if the doctor refuses or fails to
provide the medical records within 72 hours when the patient
or his/her authorised representative makes a request as per the
Regulation 1.3.2, the said act of commission or omission would
constitute professional misconduct rendering him/her liable for
disciplinary action and punishment under Regulation 8. [Para
11.1.2] [1204-D]
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1.3 The withholding the medical records of Respondent
No.1, who was a premature baby, for a period of over 2 years,
would constitute grave professional misconduct under
Regulation 7, apart from being a gross deficiency in service on
the part of the Appellant No.1-Hospital and its management.
[Para 11.1.7] [1206-G; 1207-A]
Failu

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