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REPORTABLE  

IN THE SUPREME COURT OF INDIA  

CIVIL APPELLATE JURISDICTION  

Civil Appeal No. 6619 Of 2016  

 MAHARAJA AGRASEN   HOSPITAL & ORS.               …APPELLANTS    

Versus  

MASTER RISHABH SHARMA & ORS.  …RESPONDENTS   

WITH  

Civil Appeal No.  9461      Of  2019  

(Arising out of Diary No. 15393 of 2019)  

POOJA SHARMA & ORS.        …APPELLANTS  

Versus  

MAHARAJA AGRASEN   

HOSPITAL & ORS.      …RESPONDENTS  

J U D G M E N T   

INDU MALHOTRA, J.   

1.  The present Civil Appeals arise out of a complaint of medical  

negligence made by Respondent Nos. 1 to 3 – the  

Complainants against the Appellant No.1 – Hospital and  

Appellant Nos. 2 to 4 – the Paediatricians and  

Ophthalmologist Doctors working with the Appellant No.1-

Hospital, and Respondent No.4- the Gynaecologist, before

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the National Consumer Disputes Redressal Commission  

(hereinafter referred to as the “National Commission”).   

2.   The National Commission vide Judgment and Order dated  

10.05.2016 (“impugned Judgment”) allowed the consumer  

complaint, and held the Appellant No.1 – Hospital, and  

Appellant Nos. 2 to 4 – Doctors guilty of medical negligence,  

since they failed to carry out the mandatory check up of  

Retinopathy of Prematurity (“ROP”) on Respondent No.1-

Master Rishabh, who was a pre-term baby, which led to his  

total blindness. In so far as Respondent No.4- Dr. Rama  

Sharma, the Gynaecologist is concerned, who had delivered  

the baby, she was exonerated by the National Commission,  

and has not been pressed before this Court.   

3.  Aggrieved by the impugned Judgment passed by the  

National Commission, the Appellant No.1- Maharaja  

Agrasen Hospital, a super speciality hospital, Appellant No.2  

-Dr. G.S. Kochhar and Appellant No.3- Dr. Naveen Jain, the  

Consultant Paediatricians working for the Appellant No.1 –  

Hospital, and Appellant No.4-Dr. S.N. Jha, the Senior  

Consultant Ophthalmologist working for the Appellant No.1-

Hospital have filed Civil Appeal No. 6619 of 2016.

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4.  Respondent No.1-Master Rishab Sharma, is the child-

patient, who was Complainant No.1 before the National  

Commission, and was represented by his widowed mother  

Pooja Sharma – Respondent No.2/the Complainant No.2.  

Respondent No.3 is the elder brother of Respondent No.1.   

The Complainants have filed Civil Appeal No. 9461 of  

2019 (Diary No. 15393 of 2019) before this Court for further  

enhancement of the compensation awarded by the National  

Commission.   

5. The background facts in which the present Civil Appeals  

have been filed are as under:-  

5.1 Respondent No.2-Pooja Sharma – the Complainant  

No.2 was under the ante-natal care of Respondent  

No.4-Dr. Rama Sharma at Sharma Medical Centre  

since September 2005.   

5.2 On 02.04.2005, at about 5.30 p.m., the Respondent  

No.2 had to undergo a caesarean section in view of the  

condition of Placenta Previa. The baby-Respondent  

No.1 was born pre-term at 32 weeks’ gestation, with a  

weight of 1.49 kg at the time of birth.  

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5.3 On the same day, at about 8:30 p.m., Respondent  

No.4- Dr. Rama Sharma, the Gynaecologist referred  

the case for intensive care to Maharaja Agrasen  

Hospital- Appellant No.1.   

At the time of admission, the general condition of  

the baby was poor, and was diagnosed as “32 weeks  

pre-term AGA with HMD”. The baby was treated in the  

Neo-natal ICU of the Paediatrics Unit and was put on  

ventilatory support, and Surfactant injections were  

administered gradually.   

5.4 The Respondent No.1-baby stayed in the Appellant  

No.1-Hospital for almost 4 weeks, and was discharged  

on 29.04.2005, which was 27 days after birth.   

The Discharge Slip issued by the Appellant No.1-

Hospital to the Complainants reads as follows:  

“  Maharaja Agrasen Hospital  Punjabi Bagh, New Delhi-110026, Ph. 25106645 to 54   

DISCHARGE SLIP    

Hospital No. 505404.  Ward: NICU  Deptt./Unit: Paed-III.  Name: B/O. Pooja Sharma  Age/Sex NB/M.  

Date of Admission: 02.04.2005 at 8.30 p.m.     Date of Discharge: 29.04.2005  

Diagnosis: PT (32) with HMD with Neonatal Hyperbil with B/L  Pneumothorax Fungal Septicemia.  Condition at time of discharge: Satisfactory.  

Consultants: Dr. G.S.Kochar /Dr. N. Jain

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DOB: 02.04.2005.  Sex: Male.  

Birth weight: 1.49 kg.  Weight at discharge: 1.56 kg.  

Mode: Emergency LSCS for placenta previa.      

FOLLOW UP ADVICE:    

• Syp. Taxim O 1 ml BD x 5 d.  

• Syp. Osteocalcium TDS.  

• Drops Visyneral Z 0.3 ml OD.  

• Drop Vitcofol 5 drops OD.  

• Drop Evion 5 drops OD  

• To review in Pead. OPD on Wed / Sat 4 p.m.  

• Refer back to Rama Nursing Home (Sharma Medical  

Centre)  

_______________    ______-sd-____________  

Consultant     Medical Officer                ”       

5.5 There is no advice to the Complainants to have the  

ROP test carried out on the baby, who was born  

prematurely, in the Discharge Slip. Post discharge, the  

Respondent No.2-Complainant brought the baby for a  

follow up check-up on 04.05.2005 to the Paediatrics  

Unit of the General OPD of the Appellant No.1-

Hospital, when the baby was 4 weeks and 4 days old.  

The baby was examined by the Consultant  

Paediatricians - Dr. G.S. Kochhar and Dr. Naveen  

Jain/ Appellants No. 2 and 3.   

As per the medical records, the Respondent No.1-

baby was found to be stable, and Respondent No.2-

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Complainant was advised to continue breast feeding  

along with supplements.   

It is pertinent to note that there was no advice or  

recommendation for ROP check-up on this date in the  

Medical Records produced by the Appellant No.1 –

Hospital.  

5.6 On 13.07.2005, the Respondent No.2-Complainant  

brought the baby for a 2nd follow-up visit when he was  

over 3 months old to the Paediatrics Unit of the  

General OPD of the Appellant No.1-Hospital. The  

Respondent No.1-baby was examined by Dr. Manoj on  

behalf of Dr. G.S. Kochhar. Dr. Manoj advised the  

Complainants for the BERA scan/test to be conducted.   

It is pertinent to note that there was no advice for  

ROP check-up given even on this visit.  

5.7 Respondent No.2-Complainant submits that sometime  

in November 2005, she noticed abnormal visual  

responses in the Respondent No.1 – baby. The  

Complainant asked for the medical records of the baby  

to have his follow up treatment done.  

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The medical records were, however, not made  

available by Appellant No.1-Hospital.  

5.8 On 23.11.2005, Respondent No.2 – Complainant  took  

the baby to Nayantara Eye Clinic, Delhi where an  

ultrasound (B. Scan) was conducted. It was advised  

that eye-ointment and eye-drops be administered to  

the baby.  

5.9 On 03.12.2005, the baby was taken by Respondent  

No.2- Complainant to Shroff Charity Eye Hospital,  

Delhi for further examination where the ultrasound (B.  

Scan) was conducted. The Shroff Charity Eye Hospital  

diagnosed that the baby had ROP Stage 5 in both eyes,  

which is a case of total retinal detachment.   

5.10 Respondent No.2-Complainant approached  

Respondent No.4- Dr Rama Sharma, the Gynaecologist  

of Sharma Medical Centre to explain how the medical  

condition of Respondent No.1-baby had remained un-

diagnosed. Dr. Rama Sharma shifted the blame to the  

Appellants.   

5.11 On 07.12.2005, Respondent No.2-Complainant took  

the baby to the Appellant No.1-Hospital in the Private

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OPD Consultation. Dr. Sanjay Bhavan,  

Ophthalmologist examined Respondent No.1-baby. The  

case was referred to Dr. Lingam Gopal of Shankara  

Netralaya at Chennai for an urgent appointment.   

5.12 On 07.01.2006, the Respondent No.1-baby was taken  

by his mother- Respondent No.2-Complainant to Dr.  

Rajendra Prasad Centre for Ophthalmic Sciences at  

AIIMS, New Delhi for OPD Consultation. After  

examination, it was confirmed that it was a case of  

ROP Stage 5.    

5.13 On 24.02.2007, the Respondent No.2-Complainant  

was constrained to issue a legal notice to the Appellant  

No.1-Hospital to provide the entire in-patient medical  

records of the baby in compliance with Regulation  

1.3.2 of the Indian Medical Council (Professional  

Conduct, Etiquettes and Ethics) Regulations, 2002  

(“IMC Regulations”).  

5.14 The Appellant Nos. 1 to 3 failed to provide the in-

patient medical records to the Complainant despite the  

issuance of legal notice.

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5.15 The Respondent No.2-Complainant then filed a  

complaint with the Delhi Medical Council for a  

direction to the Appellant No.1-Hospital to provide the  

complete in-patient medical records pertaining to the  

baby.  

5.16 Eventually, the Appellant No.1-Hospital provided a  

copy of the medical records of the baby alongwith the  

Case Summary on 14.06.2007 after more than 2 years  

of discharge from the Appellant No.1-Hospital.  

5.17 The Respondent No.2-Complainant contends that  

when she received these records, she was shocked to  

find that the medical records mentioned an alleged  

ROP check-up was conducted on 26.04.2005 by  

Appellant No.4-Dr. S.N. Jha. The Respondent No.2-

Complainant contends that no ROP examination was  

conducted by Appellant No.4-Dr. S.N. Jha.  

5.18 On 04.08.2007, the Respondent No.2-Complainant  

addressed a letter to the Medical Superintendent of  

Appellant No.1- Hospital. The relevant extract of the  

said letter is reproduced hereinbelow for ready  

reference:

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“Under the above enclosure we have received photocopies of some  

Medical Record (uncertified) along with a case summary dated 13-

06-2007.  

The said summary states that on 26-04-2007 ROP examination on  

our baby was conducted in the Ophthalmological unit of your  

hospital and review examination after two weeks was also advised.  

We are rather intrigued by this observation as it does not find  

mention anywhere in the Discharge Summary nor is there any follow  

up advise.  

Since both of us do not recollect any such examination conducted in  

our presence or review advise and the said medical record is also  

totally silent about it, kindly provide us with the entire record of the  

Ophthalmological unit, name of the Paediatric Ophthalmologist who  

had conducted the ROP examination and his written report dated  

26-04-2006.”  

      [emphasis supplied]  

5.19 Appellant No.1- Hospital replied to the letter on  

24.08.2007, wherein it was stated that:  

“As per standard neonatal protocol, ophthalmological check-up was  

requested on 25-04-2005 to rule out ROP.  

The ophthalmological examination was done in the Nursery on 26-

04-2005 morning by Dr. S. N. Jha, Senior Consultant  

Ophthalmologist. The written report of the Ophthalmological unit is  

stated on page no.102 of the case record.”   

      [emphasis supplied]  

5.20 On 19.11.2007, Respondent Nos. 1 to 3 filed a  

Consumer Complaint under Section 21 (a)(i) of the  

Consumer Protection Act, 1986 before the National  

Commission [Consumer Case No. 119 Of 2007]  

claiming compensation of Rs. 1,30,25,000/- alleging  

medical negligence and deficiency in service on the

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part of Appellant Nos. 1 to 4, and Respondent No.4-  

the Gynaecologist, for compensation for the permanent  

physical disability, mental agony, and social stigma,  

deprivation of normal human life, companionship,  

torture and harassment etc.   

5.21 The Delhi Medical Council vide order dated 14.12.2007  

issued a warning to the Appellant No.1-Hospital for the  

delay in supplying the medical records of the  

Respondent No.1-baby to the Complainant.  

5.22 The National Commission vide Order dated 29.02.2012  

directed the Medical Board, AIIMS to give an expert  

opinion in the matter.    

5.23 The Medical Board of AIIMS submitted its Report dated  

11.05.2012 to the National Commission. The Report  

states that as per standard guidelines (National  

Neonatology Forum), new born babies who are born at  

32 weeks’ gestation or less, should have their eyes  

examined at 3-4 weeks of age and more frequent  

check-ups to be done thereafter. Appellant No.4- Dr.  

S.N. Jha examined the baby at 24 days of age in  

accordance with established protocol. If ROP screening

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does not reveal any ROP, then repeat examination  

should be performed after 2 weeks. The Report goes on  

to say that after discharge, the baby was brought twice  

to the General OPD of the Appellant No.1- Hospital.  

There is no record to show that the baby was brought  

after 2 weeks of discharge to the Paediatrics OPD clinic  

when subsequent progression could been assessed and  

treated on time.   

6. The National Commission vide its Judgment and Order  

dated 10.05.2016 (bench comprising of Presiding  

Member J.M. Malik J. and Dr. S.M. Kantikar, a  

qualified doctor) held as under:  

6.1 The National Commission was not convinced that  

the ROP screening was done by O.P. No.5/Appellant  

No.4 on Respondent No.1-baby. The progress sheet  

was devoid of any details about the ROP  

examination, the method and instruments used,  

drugs (midrates/tropicamide)/ anaesthesia used  

during ROP testing. The Ophthalmologist has not  

mentioned any details of the dilation of the pupils,  

and the findings by indirect ophthalmoscope, and

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the intra-ocular or extra retinal findings. The  

standard ROP screening protocol was not followed.  

The Nurses’ Daily Records from 25.04.2005 to  

27.04.2005 does not show that any ROP  

examination was done by O.P. No. 5/Appellant No.  

4.  

6.2 The AIIMS Report did not comment about the details  

of the ROP screening and the follow-up findings.   

6.3 The National Commission held that the sequence of  

events leading to ROP usually takes about 4 to 5  

weeks, except in a small sub-set of premature  

infants who develop rush disease in 2 to 3 weeks.  

The routine screenings should begin at no later than  

4 weeks after birth, and possibly even earlier for  

infants at higher risk (2 to 3 weeks). It is strongly  

recommended that one session of retinal screening  

be carried before Day 30 of the life of any premature  

baby. The examination should be done with the  

dilation of the pupil with Tropicamide 0.5% to 1%  

with Phenylapinephrine 2.5%.

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6.4 The National Commission came to the conclusion  

that O.P. No.5/Appellant No.4 did not conduct the  

ROP screening on the baby. ROP screening is a  

team-work of the Paediatrician, Opthalmologist and  

the NICU nurse. There is no medical documentation  

of the ROP screening procedural details. The O.P.  

No. 5 should have performed the retinal  

examination with binocular indirect opthalmoscope  

on dilation of the pupil with scleral depression to  

ascertain avascular zone at the periphery of the  

retina. The National Commission found that nothing  

was forthcoming from Page 102 of the medical  

records. It appears to be a bare visual examination  

done by O.P. No. 5 in haste to cover up the case.   

 The National Commission was of the  

considered view that neither the ROP screening was  

performed, nor was any advice for follow up of ROP  

given to the Respondent No.2-Complainant/mother.  

6.5 The National Commission held that the Respondent  

No.1-Master Rishabh had been rendered blind for  

life, which could never really be compensated in

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monetary terms. The baby had lost his father during  

the pendency of proceedings in 2013. The  

Respondent No.2-Complainant had been pursuing  

the consumer complaint single-handedly for almost  

a decade.   

6.6 The National Commission awarded an amount of Rs.  

53,00,000/- to the Respondent No.1-baby by  

applying the average inflationary principle at a  

conservative rate of 1% p.a., keeping in mind the  

fluctuations over the next 59 years.  The National  

Commission awarded an amount of Rs. 10,00,000/-  

to the Respondent No.2-Complainant/mother who  

would have to take care of the blind child  

throughout her life.  A further amount of Rs.  

1,00,000/- was awarded towards costs of litigation.  

The National Commission held O.P. Nos. 2 to 5/  

Appellant Nos. 1 to 4 to be jointly and severally  

liable to pay the total amount of Rs. 64,00,000/-  

within 2 months of the Order. The entire amount  

would carry interest at the rate of 9% p.a.

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  Out of the total compensation awarded, Rs.  

50,00,000/- would be kept in a Fixed Deposit with a  

nationalised bank till Respondent No.1 attained the  

age of majority. The periodic interest on the deposit  

would be paid to the Respondent No.2-

Complainant/ mother till the child attained the age  

of majority. The remaining amount of Rs.  

14,00,000/- would be released to the Respondent  

No.2-Complainant.   

7.   Aggrieved by the impugned Judgment passed by the  

National Commission, C.A. No. 6619 of 2016 was filed by  

the Hospital and the Doctors before this Court. The  

Complainants have filed Civil Appeal No. 9461 of 2019  

(Diary No. 15393 of 2019) before this Court for  

enhancement of compensation.   

 This Court vide interim Order dated 29.07.2016  

ordered stay of the operation of the impugned Judgment,  

subject to the Appellant No.1-Hospital depositing 50% of the  

amount awarded by the National Commission in this Court  

within 6 weeks.  

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On 07.09.2016, the Appellant No.1-Hospital deposited  

an amount of Rs. 32,00,000/- in this Court. This Court vide  

Order dated 7.11.2016, directed the amount to be kept in a  

Fixed Deposit with UCO Bank, which was renewed from  

time to time. The fixed deposit is due to mature on  

17.02.2020.  

8.   We have heard the learned Counsel for all the parties and  

perused the original Medical Records, pleadings and written  

submissions filed by the parties.  

9. The learned counsel for the Appellants viz. the Hospital and  

Doctors inter alia submitted that:  

9.1 Respondent No.1-baby was pre-term (32 weeks) with  

signs of HMD, and was admitted in Appellant No.1-

Hospital on 02.04.2005 in a critical condition with  

little chance of survival. The baby was admitted in the  

neo-natal ICU, and had to be immediately placed on  

ventilatory support for 10 days. As per standard  

protocol, regular investigations and Arterial Blood Gas  

(ABG) analysis were performed. Blood component  

therapy was given. The critical condition of the baby  

and possible neuro-development, visual and hearing

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sequel was informed to the parents. The baby was  

given utmost care and attention by the Doctors of the  

Appellant No.1-Hospital.  

9.2 As per protocol, ophthalmological examination was  

advised on 25.04.2005 to rule out ROP, as recorded at  

Page 100 of the medical records. Appellant No.4-Dr.  

S.N. Jha, the Senior Ophthalmologist conducted the  

ROP test on 26.04.2005, who found no ROP in  

Respondent No.1-baby, as recorded by Appellant No.4  

in his handwriting at page 102 of the medical records.  

It was submitted that the Appellant No.4 had advised a  

further review/check-up after 2 weeks in the speciality  

OPD on Wednesay/Saturday between 4 p.m. to 6 p.m.  

The parents of Respondent No.1-baby were explained  

all the problems which may develop in a premature  

baby.  

9.3 As per the Discharge Summary at Page 109 of the  

medical records, the Complainants were advised to  

bring the Respondent No.1-baby for a ROP and BERA  

check-up to the speciality OPD on  

Wednesday/Saturday at 4 pm.  

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9.4 The Respondent No.2-Complainant brought the baby  

to the General OPD  of Appellant No.1- Hospital on  

04.05.2005 after 8 days of the first ROP check-up, and  

not after 2 weeks as advised. Thereafter, the baby was  

brought on 13.07.2005, which was after 2 months  

again to the General OPD.  

9.5 The Appellants relied on the Report of the Medical  

Board constituted by AIIMS, which had vide their  

Report dated 11.05.2012 held that the baby was not  

brought to the Paediatrics OPD Clinic on Wednesdays  

or Saturdays at 4 P.M. after two weeks of discharge,  

when subsequent progression of ROP could have been  

assessed and treated on time.   

9.6 The Appellant No.4/O.P. No.5 - Dr. S.N. Jha, a Senior  

Ophthalmologist was engaged with the Appellant No.1-  

Hospital from 1997 to 2010. It was submitted on his  

behalf that on 25.04.2005, the Paediatrics Dept. of the  

Appellant No.1-Hospital had requisitioned him to  

perform the ROP examination. The Appellant No.4  

submits that the ROP was duly conducted by him on  

26.04.2005. His finding is recorded at Page 102 of the

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medical records, wherein he has recorded that he did  

not find any evidence of ROP at that stage. It was  

further submitted that it was not required to record  

the method of dilation of the pupil and use of indirect  

ophthalmoscope. The standard medical literature  

establishes that ROP manifests itself after 4 weeks of  

post-natal age. In view thereof, the finding of Appellant  

No.4, who examined the baby only on 26.04.2005 i.e.  

when the baby was 24 days old, there was no evidence  

of ROP, cannot be faulted.   

9.7 It was further submitted that the only requirement for  

conducting an ROP examination is a chemical solution  

of Tropicamide and Phenylephrine to dilate the eyes,  

which was available in the nursery, and an indirect  

ophthalmoscope, which is available with all  

ophthalmologists. who have specialised in the care of  

retina, and are competent to carry ROP examination. It  

was submitted that the Appellant No.4 was not  

required to record the procedure for conducting the  

ROP examination, which is merely the retinal

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examination of the baby by use of an indirect  

ophthalmoscope after dilation of the pupils.   

9.8 Appellant No.4 - Dr. S.N. Jha was not consulted on the  

two subsequent visits by the Respondent No.2-

Complainant with the baby on 04.05.2005 and  

13.07.2005 in the Ophthalmology department, even  

though he would have been available in the speciality  

OPD on Wednesdays/Saturdays at 4 P.M.   

10. The learned counsel for the Complainants –

Respondent Nos. 1 to 3 (Appellant Nos. 1 to 3 in Civil Appeal  

No. 9461 of 2019/Diary No. 15393 of 2019), inter alia  

submitted that the Respondent No.1-baby has become  

permanently blind on account of the gross medical  

negligence by the Hospital, and the three specialist doctors  

i.e two consultant Paediatricians, and the Ophthalmologist,  

for the following reasons:  

10.1 The Appellant Nos.1 to 4 did not at any stage conduct  

the ROP examination of the baby, who was a  

premature baby, nor was the family ever informed  

about the high risk of ROP in a premature baby, and  

the necessity for regular check-ups.

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10.2 The Appellant No.1-Hospital had deliberately withheld  

the medical records for over two years after discharge.  

At the time of discharge on 29.04.2005, the  

Complainants were provided with a Discharge Slip,  

which did not disclose any instructions advising that  

the infant be brought for ROP examination (the  

Discharge Slip in Para 5.4 above).  

In this Discharge Slip, there is no advice of ROP  

having been conducted, or follow-up of ROP, nor was  

the risk of ROP explained by the Appellant Nos. 2 and  

3 to the Respondent No.2-Complainant.   

10.3 The Complainants have strongly contended that parts  

of the medical records, which were provided after 2  

years in 2007, had been fabricated and interpolated as  

an afterthought to escape liability.    

It was submitted that a bare perusal of the noting  

dated 26.04.2005 made in the medical record by  

Appellant No.4- the Ophthalmologist, shows that is  

merely a scribble, and is illegible. The Complainants  

have strongly refuted the case of the Appellants that

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the ROP was conducted by Appellant No.4 on  

26.04.2005.  

The Complainants have supported their  

submission on the basis of :(i) the progress sheets,  

which contain no details of the ROP examination; (ii)  

there is no mention of the ROP examination in the  

Nurses’ Daily Record; (iii) ROP exam is conducted with  

the help of dilation by using Cyclopentolate (0.5%) and  

Phenylephrine (2.5%) drops to be applied 2 to 3 times,  

about 10-15 minutes apart. There is no record with  

respect to the administration of the these medicines to  

the baby; (iv) there is no mention of the ROP test in the  

Discharge Slip of 29.04.2005;   

10.4 The Complainants contended that if the standard  

protocol had been carried out by the Doctors, the ROP  

would have been detected at an early stage, and could  

have been cured, since it is medically known to be  

reversible at the early stages.   

 On account of the negligence of the Appellant  

Nos. 1 to 4, the ROP was discovered only at Stage 5, by  

the Shroff Charity Eye Hospital, when the baby was 8

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months old. By this time, the ROP became irreversible,  

and resulted in total blindness of the Respondent No.1-

baby.  

10.5 It was further urged that the quantum of compensation  

awarded by the National Commission was grossly  

inadequate and insufficient. The National Commission  

failed to take into account variables such as the  

additional educational expenses in special schools,  

transportation costs, costs of purchasing, maintaining  

and upgrading Visual Aid/Assistive Devices, costs of  

permanent nursing/attendant care and miscellaneous  

medical expenses. It was further contended that the  

average rate of inflation taken by the National  

Commission i.e. a conservative rate of 1 % per annum  

for the next 59 years, was grossly undervalued. The  

Complainants sought enhancement of the  

compensation to the extent of Rs. 9,87,84,000/-.   

11.  Discussion and Analysis   

11.1     Inordinate Delay in Supply of Medical Records  

We find that there was an inordinate delay of over 2  

years in making the Medical Records of Respondent No.1-

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Master Rishabh available to the Respondent No.2-

Complainant. Regulation 1.3.2 of the IMC Regulations  

casts a statutory obligation upon every doctor/hospital to  

provide medical records within 72 hours of the request  

being made by the patient.   

11.1.1 The Medical Council of India has framed the IMC  

Regulations with the previous approval of the Central  

Government, in exercise of the powers conferred by  

Section 20A read with Section 33(m) of the Indian  

Medical Council Act, 1956. The IMC Regulations came  

into force on their publication in the Gazette of India on  

06.04.2002, and have statutory force.  

11.1.2 Regulation 1.3.2 of the Indian Medical Council  

(Professional Conduct, Etiquettes and Ethics)  

Regulations, 2002 provides as under:   

“1.3 Maintenance of medical records:     1.3.1 Every physician shall maintain the medical records  pertaining to his /her indoor patients for a period of 3 years  from the date of commencement of the treatment in a  standard proforma laid down by the Medical Council of  India and attached as Appendix 3.     1.3.2. If any request is made for medical records either by  the patients / authorised attendant or legal authorities  involved, the same may be duly acknowledged and  documents shall be issued within the period of 72 hours.    

26  

1.3.3 A Registered medical practitioner shall maintain a  Register of Medical Certificates giving full details of  certificates issued. When issuing a medical certificate he /  she shall always enter the identification marks of the  patient and keep a copy of the certificate. He / She shall not  omit to record the signature and/or thumb mark, address  and at least one identification mark of the patient on the  medical certificates or report. The medical certificate shall  be prepared as in Appendix 2.     1.3.4 Efforts shall be made to computerize medical records  for quick retrieval.  

       [emphasis supplied]  

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.   

 Regulations 7 and 8 provide as follows:  

“7. MISCONDUCT      The following acts of commission or omission on the part of a  physician shall constitute professional misconduct rendering  him/her liable for disciplinary action     7.1 Violation of the Regulations: If he/she commits any  violation of these Regulations.     7.2 If he/she does not maintain the medical records of  his/her indoor patients for a period of three years as per  regulation 1.3 and refuses to provide the same within 72  hours when the patient or his/her authorised representative  makes a request for it as per the regulation 1.3.2.   

27  

8. PUNISHMENT AND DISCIPLINARY ACTION     8.1 It must be clearly understood that the instances of  offences and of Professional misconduct which are given  above do not constitute and are not intended to constitute a  complete list of the infamous acts which calls for disciplinary  action, and that by issuing this notice the Medical Council of  India and or State Medical Councils are in no way precluded  from considering and dealing with any other form of  professional misconduct on the part of a registered  practitioner. Circumstances may and do arise from time to  time in relation to which there may occur questions of  professional misconduct which do not come within any of  these categories. Every care should be taken that the code is  not violated in letter or spirit. In such instances as in all  others, the Medical Council of India and/or State Medical  Councils have to consider and decide upon the facts brought  before the Medical Council of India and/or State Medical  Councils.    8.2 It is made clear that any complaint with regard to  professional misconduct can be brought before the  appropriate Medical Council for Disciplinary action. Upon  receipt of any complaint of professional misconduct, the  appropriate Medical Council would hold an enquiry and give  opportunity to the registered medical practitioner to be heard  in person or by pleader. If the medical practitioner is found to  be guilty of committing professional misconduct, the  appropriate Medical Council may award such punishment as  deemed necessary or may direct the removal altogether or for  a specified period, from the register of the name of the  delinquent registered practitioner. Deletion from the Register  shall be widely publicized in local press as well as in the  publications of different Medical Associations/  Societies/Bodies.     8.3 In case the punishment of removal from the register is for  a limited period, the appropriate Council may also direct that  the name so removed shall be restored in the register after  the expiry of the period for which the name was ordered to be  removed.     8.4 Decision on complaint against delinquent physician shall  be taken within a time limit of 6 months.     8.5 During the pendency of the complaint the appropriate  Council may restrain the physician from performing the  procedure or practice which is under scrutiny.    

28  

8.6 Professional incompetence shall be judged by peer group  as per guidelines prescribed by Medical Council of India.”  

11.1.3 The IMC Regulations framed by the Medical Council of  

India are binding on all medical professionals, who are  

under a statutory obligation to provide medical records to  

the patients or their attendants. All hospitals, whether  

Government or private are liable to maintain  

the medical records, and provide the same to patient or  

their attendants within 72 hours of the request.  

11.1.4 The Delhi Medical Council vide Circular No.  

DMC/DHS/F.5/2/2009 dated 15.05.2009 casts a  

statutory obligation on all registered medical practitioners  

and hospitals/nursing homes to strictly adhere to  

Regulation 1.3.2 of the IMC Regulations. The failure to  

comply with the same would constitute professional  

misconduct and entail disciplinary action.   

11.1.5 This Court in Federation of Obstetrics & Gynaecological  

Societies of India v. Union of India1 held that “considering  

the nature of services rendered by medical professionals,  

proper maintenance of records is an integral part of the  

medical services.”   

 1 (2019) 6 SCC 283

29  

11.1.6 The Respondent No.2-Complainant submitted that she  

had made several requests for being provided the in-

patient records for further evaluation/examination of the  

baby, which was not made available to her for over 2  

years after his discharge in April 2005 from the Appellant  

No.1- Hospital. Respondent No.2-Complainant had to run  

from one hospital to another so as to ascertain why her  

son had abnormal visual responses. Despite repeated  

requests, the Medical Records were withheld by the  

Hospital. The Respondent No.2-Complainant had a legal  

notice issued on 24.02.2007 to the Appellant No.1-

Hospital requesting for the entire in-patient medical  

record of her child, and made a complaint to the Delhi  

Medical Council. The Appellant No.1 -Hospital eventually  

provided the medical record on 14.06.2007.   

11.1.7 The Delhi Medical Council vide Order dated  

14.12.2007 issued a warning to the Appellant No.1-

Hospital for the delay in supplying the medical records of  

Respondent No.1 to the Complainant.   

 We find that withholding the medical records of  

Respondent No.1, who was a premature baby, for a

30  

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.  

11.2 Failure to diagnose Retinopathy of Prematurity (ROP)  

 Retinopathy of Prematurity (ROP) is one of the  

major emerging causes of childhood blindness. A  

premature baby is not born with ROP. At the time of  

birth, particularly in the case of premature babies, the  

retina is immature, which is natural at this stage. It is  

the post-natal developments in the retinal vessels which  

could lead to ROP.   

11.2.1 As per medical literature, all infants with a birth  

weight of less than 1500 grams, or gestational age of  

less than 32 weeks, are required to be mandatorily  

screened for ROP, which usually takes about 4 to 5  

weeks to be diagnosed. The routine screening should  

begin no later than 4 weeks after birth, and possibly  

even earlier for infants at higher risk (2 to 3 weeks).  

31  

 The standard of care is to be judged in the light of  

the protocols and standard procedures prevailing on  

the date of birth, and not on the date of trial. 2   

11.2.2  In Programme Planning and Screening Strategy in  

Retinopathy of Prematurity3, published in March 2003  

co-authored by Drs. Subhadra Jalali, MS; Raj Anand,  

MS; Harsh Kumar, MD; Mangat R Dogra, MS;  

Rajvardhan Azad, MD,FRCS (Ed); Lingam Gopal, MS  

have opined that:  

“There are several compelling reasons to have a  

screening programme for ROP. Firstly, the premature child  

is not born with ROP and retinal disease is not present at  

birth. Each prematurely born child has a potential for  

normal vision, even if the retina is immature at birth.  

Screening for ROP aims to identify those infants who have  

reached or have the potential to reach threshold ROP,  

which if untreated, may cause blindness or visual  

impairment. This has medico-legal implications. There are  

indefensible legal repercussions should an infant develop  

ROP and retinal detachment, but had not received eye  

examination. Secondly, the grief and the personal tragedy  

for the family is tremendous, besides the economic burden  

of such childhood blindness. The aim of screening  

premature babies for ROP is to detect all treatable  

 2 Nizam's Institute of Medical Sciences v. Prasanth S. Dhananka, (2009) 6 SCC 1; Jacob  Mathew v. State of Punjab (2005) 6 SCC 1 : 2005 SCC (Cri) 1369  3 Subhadra Jalali, MS; Raj Anand, MS; Harsh Kumar, MD; Mangat R Dogra, MS;  

Rajvardhan Azad, MD,FRCS (Ed); Lingam Gopal, MS, Programme Planning and Screening  

Strategy in Retinopathy of Prematurity, Indian J Ophthalmol 2003 (March 2003), Vol. 51,  

Pages 89-99  

32  

neonates, with minimal expense of time and resources.  

This also aims at not screening those babies who are  

unlikely to get a severe form of ROP. Early recognition of  

ROP by screening provides an opportunity for effective  

treatment…. The criteria for screening babies are based on  

two critical factors – the birth weight and the gestational  

age.”   

      [emphasis supplied]  

A well organised screening strategy and timely  

intervention can to a large extent prevent blindness  

due to ROP. Extensive clinical trials and publications4  

have established that among other factors, gestation  

period and low birth weight are critical in the  

pathophysiology of ROP. If detected early and treated  

with peripheral retinal cryopexy or laser, ROP  

blindness can be prevented to some extent.5 Once the  

 4 Palmer EA, Flynn JT, Hardy RJ, Phleps DL, Phillips CL, Schaffer DB, Incidence and early  course of retinopathy of prematurity. Ophthalmology 1991;98:1628-40;  Fielder AR, Shaw  DF, Robinson J, Ng YK, Natural history of retinopathy of prematurity: A prospective study.  

Eye 1992;6:233-42;  STOP-ROP Multicentre Study Group. Supplemental therapeutic  

oxygen for prethreshold retinopathy of prematurity (STOP-ROP), a randomised controlled  

trial: Primary outcomes. Paediatrics 2000;150:295-10.  Cryotherapy for Retinopathy of  

Prematurity Cooperative Group. Multicentre trial of cryotherapy for retinopathy of  

prematurity-Three-month outcome. Arch Ophthalmol 1990;108:195-40.   5 Cryotherapy for Retinopathy of Prematurity Cooperative Group. Multicentre trial of  

cryotherapy for retinopathy of prematurity-Three-month outcome, Arch Ophthalmol  

1990;108:195-40 ; Cryotherapy for Retinopathy of Prematurity Cooperative Group.  

Multicentre trial of cryotherapy for retinopathy of prematurity-3¹⁄₂ years outcome for both  structure and function, Arch Ophthalmol 1993;111:339-44. Tsisis T, Tasman W, Mcnamara  JA, Brown G, Vander J. Diode laser photocoagulation for retinopathy of prematurity, Trans  Am Ophthal Soc 1997;95:231-36.; Despande DA, Chaturvedi M, Gopal L, Ramachandram S,  Shanmugasundaram R. Treatment of threshold retinopathy of prematurity, Indian J  Ophthalmol 1998;46:15 19.  

33  

case crosses Stage 3, in very few cases can the sight be  

saved even by extensive vitreoretinal surgery.6   

11.2.3  This Court considered this issue in a similar case in V.  

Krishnakumar v. State of Tamil Nadu7. In that case, a  

premature female baby was born in the 29th week of  

pregnancy. The infant weighed only 1.25 kgs at birth.  

The doctors failed to examine the baby for ROP, or  

advise the parents that the baby was required to be  

seen by a paediatric ophthalmologist since there was a  

possibility of occurrence of ROP, so as to avert  

permanent blindness. The discharge summary neither  

disclosed a warning to the infant's parents of the  

possibility that the infant might develop ROP for which  

certain precautions must be taken, nor any signs that  

the doctors were themselves cautious of the dangers of  

development of ROP. The doctors attempted to cover  

up their gross negligence of not having examined the  

infant for the onset of ROP, which is a standard  

precaution for a well-known condition in such a case.   

 6 Cherry TA, Lambert SR, Capone-A Jr. Electroretinographic findings in stage V retinopathy  of prematurity after retinal reattachment, Retina 1995;15:21-24;  Noorily SW, Small K, Juan  E de, Machemar R. Scleral bucking surgery for stage 4B retinopathy of prematurity,  Ophthalmology 1992;99:263-68.   7 (2015) 9 SCC 388 : (2015) 4 SCC (Civ) 546

34  

 This Court after reviewing and analysing the  

medical literature on ROP, observed that the problem  

occurs in infants who are prematurely born, and who  

have been administered oxygen and blood transfusion  

upon birth. If detected during early stages, it can be  

prevented. In para 4 of the judgment, this Court held  

that:  

“4. ….It is said that prematurity is one of the most  

common causes of blindness and is caused by an initial  

constriction and then rapid growth of blood vessels in the  

retina. When the blood vessels leak, they cause scarring.  

These scars can later shrink and pull on the retina,  

sometimes detaching it. The disease advances in severity  

through five stages — 1, 2, 3, 4 and 5 (5 being the terminal  

stage). Medical literature suggests that Stage 3 can be  

treated by Laser or Cryotherapy treatment in order to  

eliminate the abnormal vessels. Even in Stage 4, in some  

cases, the central retina or macula remains intact thereby  

keeping intact the central vision. When the disease is  

allowed to progress to Stage 5, there is a total detachment  

and the retina becomes funnel shaped leading to  

blindness. There is ample medical literature on the subject.  

It is, however, not necessary to refer all of it. Some  

material relevant to the need for check-up for ROP for an  

infant is:  

“All infants with a birth weight less than 1500 gm or  

gestational age less than 32 weeks are required to be  

screened for ROP.” [ AIIMS Report dated 21-8-2007]

35  

5. It is undisputed that the relationship of birth weight and  

gestational age to ROP as reproduced in NCDRC's order is  

as follows:  

“Most ROP is seen in very low birth weight infants, and the  

incidence is inversely related to birth weight and  

gestational age. About 70-80% of infants with birth weight  

less than 1000 gm show acute changes, whereas above  

1500 gm birth weight the frequency falls to less than  

10%.”  

6. …. It is further observed that ROP is a visually  

devastative disease that often can be treated successfully  

if it is diagnosed in time.”  

      [emphasis supplied]  

  This Court relied upon a Report dated 21.08.2007  

of the All India Institute of Medical Sciences, New Delhi  

comprising of five members, of which, four were  

ophthalmological specialists. The Board opined as under:  

“A premature infant is not born with Retinopathy of  

Prematurity (ROP), the retina though immature is normal  

for this age. The ROP usually starts developing 2-4 weeks  

after birth when it is mandatory to do the first screening of  

the child. The current guidelines are to examine and screen  

the babies with birth weight<1500 gm and <32 weeks  

gestational age, starting at 31 weeks post-conceptional  

age (PCA) or 4 weeks after birth, whichever is later.  

Around a decade ago, the guidelines in general were the  

same and the premature babies were first examined at 31-

33 weeks post-conceptional age or 2-6 weeks after birth.  

There is a general agreement on these above guidelines on  

a national and international level. The attached annexure  

explains some authoritative resources and guidelines

36  

published in national and international literature  

especially over the last decade.  

However, in spite of ongoing interest world over in  

screening and management of ROP and advancing  

knowledge, it may not be possible to exactly predict which  

premature baby will develop ROP and to what extent and  

why.”  

      [emphasis supplied]  

On a review of the literature on ROP, the Supreme Court in  

V. Krishnakumar (supra) set out the screening guidelines as  

follows:  

    Year Source First screening Who to screen  

2006 American Academy  

of Paediatrics et al.  

31 weeks PCA or 4  

weeks after birth,  

whichever is later.  

<1500 gm birth  

weight or <32 weeks  

GA or higher.  

2003 Jalali S et al. Indian J  

Ophthalmology  

31 weeks PCA or 3-4  

weeks after birth,  

whichever is earlier.  

<1500 gm birth  

weight or <32 weeks  

GA or higher.  

2003 Azad et al. JIMA 32 weeks PCA or 4-5  

weeks after birth,  

whichever is earlier.  

<1500 gm birth  

weight or <32 weeks  

GA or higher.  

2002 Aggarwal R et al.  

Indian J. Paediatrics  

32 weeks PCA or 4-6  

weeks after birth,  

whichever is earlier.  

<1500 gm birth  

weight or <32 weeks  

GA.  

1997 American Academy  

of Paediatrics et al.  

31-33 weeks PCA or  

4-6 weeks after birth.  

<1500 gm birth  

weight or <28 weeks  

GA or higher.  

1996 Maheshwari R et al.  

National Med. J.  

India  

32 weeks PCA or 2  

weeks after birth,  

whichever is earlier.  

<1500 gm birth  

weight or <35 weeks  

GA or 02>24 hrs.  

1988 Cryotherapy ROP  

Group  

4-6 weeks after birth. <1250 gm birth  

weight.  

 This Court observed that ROP starts developing 2 to 4  

weeks after birth when it is mandatory to do the first  

screening of the child. As per the report of AIIMS “it may not

37  

be possible to exactly predict which premature baby will  

develop ROP and to what extent and why”. This would  

necessitate the need for a check-up in all such cases.   

11.2.4   It is clear from the above medical literature that ROP is a  

visually progressive disease, which can be treated  

successfully if it is diagnosed on time. ROP advances  

through 5 stages. Medical literature suggests that Stage 3  

can be treated by Laser or Cryotherapy treatment in order to  

eliminate the abnormal vessels. Even at Stage 4, in some  

cases, the central retina or macula remains intact thereby  

keeping intact the central vision. When the disease  

progresses to Stage 5, there is a total detachment, and the  

retina becomes funnel shaped, leading to blindness.  

11.2.5   We have carefully perused the original Medical Records of  

the Appellant No.1-Hospital, which were provided in a  

sealed cover to the Court.   

 We find that there is an entry at Page 100 of the  

medical records dated 25.04.2005 recorded at 9:00 a.m.  

which reads as under:  

“   25/4/05      9 AM  Stable       Wt: 1.56 kg  

    Accepting cup feeds       S/E – NAD

38  

    D19 of Inj Amphocan          

   Plan for Discharge tomorrow           Adv:  

- Breast feeds  - Cont. rest  - ROP Checkup (Dr Jha)  ”    

                 [emphasis supplied]      At the bottom of page 102 of the medical records, there  

is another entry dated 26.04.2005, which reads as under:  

 “    26/4   by Dr. SNJ  

    No ROP  

     Review, 2 weeks.                  ”  

The said noting is signed by Dr. S.N. Jha – Appellant  

No.4. There is, however, no time mentioned against this  

noting.    

A visual examination of the original medical  

records/Treatment Sheet shows that this entry is not  

recorded in the same sequence as all previous and  

subsequent notings.  The entries recorded at Page 100 and  

Page 102 have been made at the bottom of the page. The  

date “26/4” is mentioned in a different column, unlike the  

other entries made before and after this entry. There is no  

time of the ophthalmological examination by Appellant  

No.4-Dr. S.N. Jha on 26.04.2005 mentioned in the record,

39  

unlike all other notings by other doctors, who have  

examined the patient, where the time is clearly recorded.  

On the next page i.e. page 103 of the medical record, it  

is mentioned as “Day 28” i.e. 26.04.2005 on the top of the  

page. The first entry on that date is recorded at 10.30 am.  

This would indicate that the baby was not examined prior  

to 10.30 a.m. by any doctor.   

There is no contemporaneous record to corroborate  

that ROP screening was done by Appellant No.4 on  

26.04.2005. The Nurses’ Daily Record or Treatment Sheet  

do not mention that the dilation of the pupils of the baby  

were carried out by administration of Cyclopentolate (0.5%)  

and Phenylephrine (2.5%) drops to conduct test of ROP.  

We had orally enquired from the learned counsel  

appearing on behalf of Appellant No.4- Dr. S.N. Jha about  

the approximate time at which the ROP check-up was done  

by him on 26.04.2005. The counsel was unable to specify  

the time at which the baby was examined by him.     

11.2.6   The Respondent No.1-baby was discharged on 29.04.2005.  

The Complainants were provided with a Discharge Slip. The  

Discharge Slip does not contain any advice for a mandatory

40  

follow-up for ROP. Rather, the Discharge Slip only advised  

the Complainant to bring the Respondent No.1 for a review  

to the Paediatrics OPD on Wednesday or Saturday at 4 P.M.   

11.2.7 The Counsel for the Hospital and the Doctors contended that  

post-discharge, the Respondent No.2-Complainant did not  

bring the baby to the speciality Paediatric OPD for a check-

up as advised in the Discharge Summary.   

11.2.8  We have seen the original medical records produced by the  

Appellant No.1-Hospital, and find that on both occasions,  

i.e. 04.05.2005 and 13.07.2005, the Complainants went  

correctly to the Paediatrics Unit of the General OPD. Hence,  

the contention of the Appellants is liable to rejected as being  

completely baseless.   

11.2.9 The Complainant took the baby for a follow up check-up  

post-discharge to the Paediatrics-III Department on two  

occasions i.e. 04.05.2005 and 13.07.2005.   

 The baby was examined by Appellants No. 2 and 3 on  

04.05.2005. In the Treatment Sheet, there is no  

recommendation to have ROP test done, nor was the patient  

advised to come back after two weeks.  The noting on  

04.05.2005 is extracted hereinbelow for ready reference:

41  

“   MAHARAJA AGRASEN HOSPITAL  

Punjabi Bagh, New Delhi – 26  Ph. 252266465 to 54 (10 lines)  

General OPD Prescription  

 MAH No.: 0505404    Date : 04-05-05  Deptt./Unit …..PAEDIATRICS-III  WED, SAT…09:00 To  11:00  Consultants : Dr. G.S. Kochhar / Dr.Naveen Jain    

  B/O POOJA SHARMA  Age /Sex 1 Mths  Male.  

Wt 1.65 kg    

FUC   32 weeks preterm AGA with HMD              with bilateral pneumothorax   

  with fungal septicemia.    

Baby stable.  Adv.  

- Breast feeds.  

- Continue supplements.  

------------------        Signature Dr. Naveen Jain.     ”  

 The Complainant took the baby for a further follow-up  

on 13.07.2005 to the Paediatrics-III Department. The baby  

was examined by Dr. Manoj on behalf of Appellant No.2. The  

medical record even on this date does not mention any  

advice for an ROP test. The attending doctor only advised  

that a BERA test be done. The noting on 13.07.2005 is  

reproduced hereinbelow for ready reference:  

42  

“   MAHARAJA AGRASEN HOSPITAL  

Punjabi Bagh, New Delhi – 26  Ph. 252266465 to 54 (10 lines)  

General OPD Prescription  

 MAH No 05052879    Date 13-07-05  Deptt.:  PAEDIATRICS-III  WED, SAT…09:00 To  11:00  Consultants : Dr. G.S. Kochhar / Dr.Naveen Jain    

  RISHABH SHARMA Age /Sex 4 Mths Male.  B/O Pooja Sharma  

 Wt 4 kg  Dr. Manoj     Advice – BERA test    

Calcirol sachet (3)  Visyneral-Z drops 8 drops daily.  RB tone drop 5 drops.  Syp. Lactocal 1/2 tsf.  

 ------------------  

Dr. G.S. Kochhar (Signature)   ”  

 It is thus abundantly clear that the baby was rightly  

taken to the Paediatrics Unit of the General OPD Clinic at  

the chronological age of 4 to 5 weeks, when the onset of  

ROP could have been detected. However, there was no  

advice given by the treating doctors i.e. Appellants Nos. 2  

and 3 – the Consultant Paediatricians, nor the Appellant  

No.4 – Ophthalmologist to conduct the ROP test.  

11.2.10 We find that the ROP was neither advised, nor carried out at  

all by the Appellant No.1-Hospital, or Appellant No.4-Dr.  

S.N. Jha, the Senior Ophthalmologist, throughout the

43  

period of hospitalisation of the baby, or even after discharge.  

The baby was born in the 32nd gestational week, and was  

1.49 kgs at birth. As per standard protocol, the ROP  

screening ought to have been done between 3-4 weeks from  

birth. The baby remained admitted for 27 days in the  

Hospital from 02.04.2005 to 29.04.2005. There is no  

justification whatsoever why the mandatory screening of  

ROP was not done for the baby, while he was under the  

direct care and supervision of the Appellants.   

We affirm the findings of the National Commission of  

gross negligence by the Appellant Nos. 2 to 4-Doctors, and  

deficiency of service by the Appellant No.1- Hospital.  

11.3 Report of the Medical Board constituted by AIIMS  

11.3.1 A perusal of the AIIMS Report 11.05.2012 shows that  it was  

premised on the alleged entry recorded  by Appellant No.4 -

Dr. S.N. Jha on 26.04.2005, which records that ROP test  

was conducted, and no ROP was detected.   

 We have already recorded a finding that the entry  

made in the Treatment Sheet (at pages 100 and 102 of the  

original Medical Records) seems to be an interpolation done  

subsequently to cover up the failure of the Hospital and the

44  

Doctors to advise or conduct the mandatory ROP check-up  

and follow-up protocol.   

 The second point contained in the AIIMS Report that  

the baby was not taken to the Paediatrics OPD is wholly  

fallacious. We have seen the medical records, and find that  

the baby was, in fact, taken to the Paediatrics Unit of the  

General OPD. Hence, the basis of the Report is  

misconceived, and cannot be relied upon.  

11.3.2   It is well-settled that a court is not bound by the evidence of  

an expert, which is advisory in nature. The court must  

derive its own conclusions after carefully sifting through the  

medical records, and whether the standard protocol was  

followed in the treatment of the patient. The duty of an  

expert witness is to furnish the Court with the necessary  

scientific criteria for testing the accuracy of the conclusions,  

so as to enable the Court to form an independent opinion by  

the application of this criteria to the facts proved by the  

evidence of the case.8 Whether such evidence could be  

 8 Ramesh Chandra Aggarwal vs. Regence Hospital Ltd. & Ors. (2009) 9 SCC 709; State of  H.P. v. Jai Lal (1999) 7 SCC 280 : 1999 SCC (Cri) 1184

45  

accepted or how much weight should be attached to it is for  

the court to decide.9  

11.3.3  We accept the view taken by the National Commission in  

disregarding the opinion of the Medical Board constituted by  

AIIMS.   

11.3.4 The Complainants have discharged the initial burden of  

proof10 by making out a case of clear negligence on the part  

of the Appellant No.1-Hospital and the Paediatric doctors  

under whose care the baby was admitted, as also Appellant  

No.4 – Dr. S.N. Jha, the senior Ophthalmologist attached to  

the Appellant No.1-Hospital.   

 The Appellant No.1 - Hospital and the Appellants Nos.  

2-4 - Doctors have failed to satisfy the Court that ROP tests  

were conducted at any point of time, or that the  

Complainants were even advised to get the ROP test done.  

11.4   Medical Negligence and Duty of Care  

11.4.1     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  

 9 Malay Kumar Ganguly v. Dr. Sukumar Mukherjee, (2009) 9 SCC 221 : (2010) 2 SCC (Cri)  299 : (2009) 3 SCC (Civ) 663; V. Kishan Rao v. Nikhil Super Speciality Hospital, (2010) 5  SCC 513 : (2010) 2 SCC (Civ) 460    

10 Nizam's Institute of Medical Sciences v. Prasanth S. Dhananka, (2009) 6 SCC 1 : (2009) 2  SCC (Civ) 688; Savita Garg v. National Heart Institute (2004) 8 SCC 56

46  

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.   

  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.11  

11.4.2 Medical negligence is the breach of a duty of care by  

an act of omission or commission by a medical professional  

of ordinary prudence. Actionable medical negligence is the  

neglect in exercising a reasonable degree of skill and  

knowledge to the patient, to whom he owes a duty of care,  

which has resulted in injury to such person. The standard to  

 11 Postgraduate Institute of Medical Education & Research v. Jaspal Singh, (2009) 7 SCC 330  : (2009) 3 SCC (Cri) 399 : (2009) 3 SCC (Civ) 114

47  

be applied for adjudging whether the medical professional  

charged has been negligent or not, in the performance of his  

duty, would be that of an ordinary competent person  

exercising ordinary skill in the profession. The law requires  

neither the very highest nor a very low degree of care and  

competence to adjudge whether the medical professional has  

been negligent in the treatment of the patient.12    

11.4.3 The degree of skill and care required by  

a medical practitioner stated in Halsbury's Laws of England13  

is as follows:-  

 “22. Negligence.—Duties owed to patient. A person who  

holds himself out as ready to give medical advice or treatment  

impliedly undertakes that he is possessed of skill and  

knowledge for the purpose. Such a person, whether he is a  

registered medical practitioner or not, who is consulted by a  

patient, owes him certain duties, namely, a duty of care in  

deciding whether to undertake the case; a duty of care in  

deciding what treatment to give; and a duty of care in his  

administration of that treatment. A breach of any of these  

duties will support an action for negligence by the patient.  

35. Degree of skill and care required.—…To establish liability  

on that basis it must be shown (1) that there is a usual and  

normal practice; (2) that the defendant has not adopted it; and  

(3) that the course in fact adopted is one no professional man of  

 12 Refer to Laxman Balkrishna Joshi (Dr.) v. Dr. Trimbak Bapu Godbole, (1969) 1 SCR 206 :  AIR 1969 SC 128; Kusum Sharma v. Batra Hospital (2010) 3 SCC 480 : (2010) 2 SCC (Cri)  1127 : (2010) 1 SCC (Civ) 747  13 4th Edn., Vol. 26 pp. 17-18; 4th Edition, Vol.30, Para 35

48  

ordinary skill would have taken had he been acting with  

ordinary care.”  

      [emphasis supplied]  

11.4.4 Lord Denning, in Hucks v. Cole14,  held that a medical  

practitioner would be liable only where his conduct falls  

below the standards of a reasonably competent practitioner  

in his field.    

11.4.5 In earlier judgments, this Court referred to the Bolam  

test laid down in Bolam v. Friern Hospital Management  

Committee15. In this case, the doctor treating the patient  

suffering from mental illness was held not to be guilty of  

medical negligence by the Queen’s Bench Division for failure  

to administer muscle-relaxant drugs and using physical  

restraint in the course of electro-convulsive therapy. McNair,  

J., in his opinion, explained the law in the following words16:   

“… where you get a situation which involves the use of  

some special skill or competence, then the test as to whether  

there has been negligence or not is not the test of the man on  

the top of a Clapham omnibus, because he has not got this  

special skill. The test is the standard of the ordinary skilled  

man exercising and professing to have that special skill. A  

man need not possess the highest expert skill; it is well-

 14 (1968) 118 New LJ 469; followed in Postgraduate Institute of Medical Education &  Research v. Jaspal Singh, (2009) 7 SCC 330 : (2009) 3 SCC (Cri) 399 : (2009) 3 SCC (Civ)  114  15 Bolam v. Friern Hospital Management Committee, (1957) 1 WLR 582: : (1957) 2 All ER 118  16 (WLR p. 586)

49  

established law that it is sufficient if he exercises the  

ordinary skill of an ordinary competent man exercising that  

particular art.”  

      [emphasis supplied]  

  The ratio of the Bolam case is that it is enough for the  

doctor to show that the standard of care and the skill  

exercised by him was that of an ordinary competent medical  

practitioner exercising an ordinary degree of professional  

skill. McNair, J., held that17:   

  “… he [a Doctor] is not guilty of negligence if he    

has acted in accordance with a practice accepted as proper by  

a responsible body of medical men skilled in that particular  

art.”  

11.4.6 In the subsequent judgment rendered in  

Eckersley v. Binnie18,  Bingham, L.J. explained  

the Bolam test in the following words: (Con LR p. 79)  

“From these general statements it follows that a professional  

man should command the corpus of knowledge which forms  

part of the professional equipment of the ordinary member of  

his profession. He should not lag behind other ordinary  

assiduous and intelligent members of his profession in the  

knowledge of new advances, discoveries and developments in  

his field. He should have such an awareness as an ordinarily  

competent practitioner would have of the deficiencies in his  

 17 (WLR. P 587)  18 (1988) 18 Con LR 1; followed in Jacob Mathew v. State of Punjab, (2005) 6 SCC 1 : 2005  SCC (Cri) 1369;  S.K. Jhunjhunwala v. Dhanwanti Kaur, (2019) 2 SCC 28

50  

knowledge and the limitations on his skill. He should be alert to  

the hazards and risks in any professional task he undertakes  

to the extent that other ordinarily competent members of the  

profession would be alert. He must bring to any professional  

task he undertakes no less expertise, skill and care than other  

ordinarily competent members of his profession would bring,  

but need bring no more. The standard is that of the reasonable  

average. The law does not require of a professional man that he  

be a paragon combining the qualities of polymath and prophet.  

(Charlesworth & Percy, ibid., para 8.04)”  

       [emphasis supplied]  

A medical professional should be alert to the hazards  

and risks in any professional task he undertakes to the  

extent that other ordinarily competent members of the  

profession would be alert. He must bring to any professional  

task he undertakes reasonable skill that other ordinarily  

competent members of his profession would bring.  

11.4.7 This Court followed the Bolam test in Jacob Mathew v.  

State of Punjab19  wherein it was held that the Bolam test has  

been widely accepted as decisive of the standard of care  

required by medical practitioners, and it is invariably cited  

with approval before the courts in India, and applied as a  

touchstone to test the pleas of medical negligence. The court  

51  

summed up the law on medical negligence in the following  

words:  

“48. (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 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 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, 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 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 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,

52  

while 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 have been used.  

(3) A professional may be held liable for negligence on one of the  

two findings: either he was not possessed of the requisite skill  

which he professed to have possessed, or, he did not exercise,  

with reasonable competence in the given case, the skill which  

he did possess. The standard to be applied for judging, whether  

the person charged has been negligent or not, would be that of  

an ordinary competent person exercising ordinary skill in that  

profession. It is not possible for every professional to possess  

the highest level of expertise or skills in that branch which he  

practices. A highly skilled professional may be possessed of  

better qualities, but that cannot be made the basis or the  

yardstick for judging the performance of the professional  

proceeded against on indictment of negligence.  

(4) The test for determining medical negligence as laid down in  

Bolam case [(1957) 1 WLR 582 : (1957) 2 All ER 118] holds  

good in its applicability in India.”  

[emphasis supplied]  

11.4.8 In recent years, the Bolam test has been discarded by  

the courts in England. In Bolitho v. City and Hackney Health  

Authority20, a five judge bench of the House of Lords ruled  

that21 :   

 20 (1998) 1 AC 232 : (1997) 3 WLR 1151 : (1997) 4 All ER 771 (HL)   21 (AC pp. 241 G-H and 242 A-B)

53  

“… the court is not bound to hold that a defendant doctor  

escapes liability for negligent treatment or diagnosis just  

because he leads evidence from a number of medical experts  

who are genuinely of opinion that the defendant's treatment or  

diagnosis accorded with sound medical practice. In the Bolam22  

case itself, McNair J. stated that the defendant had to have  

acted in accordance with the practice accepted as proper by a “  

responsible body of medical men.” Later, .. he referred to “a  

standard of practice recognised as proper by a competent  

reasonable body of opinion.” Again, in the passage which I  

have cited from Maynard's23 case, Lord Scarman refers to a  

“respectable” body of professional opinion.  The use of these  

adjectives—responsible, reasonable and respectable—all show  

that the court has to be satisfied that the exponents of the body  

of opinion relied upon can demonstrate that such opinion has a  

logical basis. In particular in cases involving, as they so often  

do, the weighing of risks against benefits, the judge before  

accepting a body of opinion as being responsible, reasonable or  

respectable, will need to be satisfied that, in forming their  

views, the experts have directed their minds to the question of  

comparative risks and benefits and have reached a defensible  

conclusion on the matter.”  

      [emphasis supplied]  

Lord Browne-Wilkinson, speaking for the bench, in his  

opinion stated that despite a body of professional opinion  

approving the doctor’s conduct, a doctor can be held liable  

for negligence, if it is demonstrated that the professional  

opinion is not capable of withstanding logical analysis24:   

 22 [1957] 1 W.L.R. 583, 587  23 [1984] 1 W.L.R. 634, 639  24 (AC p.243 A-E)

54  

“These decisions demonstrate that in cases of diagnosis and  

treatment there are cases where, despite a body of professional  

opinion sanctioning the defendant's conduct, the defendant can  

properly be held liable for negligence (I am not here considering  

questions of disclosure of risk). In my judgment that is because,  

in some cases, it cannot be demonstrated to the judge's  

satisfaction that the body of opinion relied upon is reasonable  

or responsible. In the vast majority of cases the fact that  

distinguished experts in the field are of a particular opinion will  

demonstrate the reasonableness of that opinion. In particular,  

where there are questions of assessment of the relative risks  

and benefits of adopting a particular medical practice, a  

reasonable view necessarily presupposes that the relative risks  

and benefits have been weighed by the experts in forming their  

opinions. But if, in a rare case, it can be demonstrated that the  

professional opinion is not capable of withstanding logical  

analysis, the judge is entitled to hold that the body of opinion is  

not reasonable or responsible.  

        [emphasis supplied]  

11.4.9 A five judge bench of the Australian High Court in  

Rogers v. Whitaker25 identified the basic flaw involved in  

approaching the standard of duty of care of a doctor as laid  

down in Bolam (supra), and held that:  

“5. ….The law imposes on a medical practitioner a duty to  

exercise reasonable care and skill in the provision of  

professional advice and treatment. That duty is a "single  

comprehensive duty covering all the ways in which a doctor is  

 25 (1992) 109 Aus LR 625: [1992]HCA 58

55  

called upon to exercise his skill and judgment" 26; it extends to  

the examination, diagnosis and treatment of the patient and the  

provision of information.”  

“12. In Australia, it has been accepted that the standard of care  

to be observed by a person with some special skill or  

competence is that of the ordinary skilled person exercising and  

professing to have that special skill.27 But, that standard is not  

determined solely or even primarily by reference to the practice  

followed or supported by a responsible body of opinion in the  

relevant profession or trade.28 Even in the sphere of diagnosis  

and treatment, the heartland of the skilled medical practitioner,  

the Bolam principle has not always been applied. 29 Further,  

and more importantly, particularly in the field of non-disclosure  

of risk and the provision of advice and information, the Bolam  

principle has been discarded and, instead, the courts have  

adopted the principle that, while evidence of acceptable medical  

practice is a useful guide for the courts, it is for the courts to  

adjudicate on what is the appropriate standard of care after  

giving weight to "the paramount consideration that a person is  

entitled to make his own decisions about his life".   

      [emphasis supplied]   

11.4.10 A seven-judge bench of the U.K. Supreme Court in a  

more recent judgment delivered in Montgomery v Lanarkshire  

Health Board30 traced the changes in the jurisprudence of  

medical negligence in England, and held that “patients are  

 26 Sidaway v. Governors of Bethlem Royal Hospital [1985] UKHL 1; (1985) AC 871  27 Cook v. Cook [1986] HCA 73; (1986) 162 CLR 376, at pp 383-384; Papatonakis v.  Australian Telecommunications Commission [1985] HCA 3; (1985) 156 CLR 7, at p 36; Weber  v. Land Agents Board (1986) 40 SASR 312, at p 316; Lewis v. Tressider Andrews Associates  Pty. Ltd. (1987) 2 Qd R 533.  28 Florida Hotels Pty. Ltd. v. Mayo [1965] HCA 26; (1965) 113 CLR 588)  29 Albrighton v. Royal Prince Alfred Hospital (1980) 2 NSWLR 542; E v. Australian Red Cross  [1991] FCA 20; (1991) 99 ALR 601)  30 [2015] UKSC 11

56  

now widely regarded as persons holding rights, rather than as  

the passive recipients of the care of the medical profession”.  

The Supreme Court noted that the courts have tacitly ceased  

to apply the Bolam test in relation to the advice given by the  

doctor to their patients. The Court summed up the law on  

medical negligence in the following words:  

“82. In the law of negligence, this approach entails a duty on  

the part of doctors to take reasonable care to ensure that a  

patient is aware of material risks of injury that are inherent in  

treatment. This can be understood, within the traditional  

framework of negligence, as a duty of care to avoid exposing a  

person to a risk of injury which she would otherwise have  

avoided, but it is also the counterpart of the patient’s  

entitlement to decide whether or not to incur that risk. The  

existence of that entitlement, and the fact that its exercise does  

not depend exclusively on medical considerations, are  

important. They point to a fundamental distinction between, on  

the one hand, the doctor’s role when considering possible  

investigatory or treatment options and, on the other, her role in  

discussing with the patient any recommended treatment and  

possible alternatives, and the risks of injury which may be  

involved.  

87. The correct position, in relation to the risks of injury  

involved in treatment, can now be seen to be substantially that  

adopted in Sidaway by Lord Scarman, and by Lord Woolf MR in  

Pearce, subject to the refinement made by the High Court of  

Australia in Rogers v Whitaker, which we have discussed at  

paras 77-73. An adult person of sound mind is entitled to  

decide which, if any, of the available forms of treatment to

57  

undergo, and her consent must be obtained before treatment  

interfering with her bodily integrity is undertaken. The doctor is  

therefore under a duty to take reasonable care to ensure that  

the patient is aware of any material risks involved in any  

recommended treatment, and of any reasonable alternative or  

variant treatments. The test of materiality is whether, in the  

circumstances of the particular case, a reasonable person in the  

patient’s position would be likely to attach significance to the  

risk, or the doctor is or should reasonably be aware that the  

particular patient would be likely to attach significance to it.”  

       [emphasis supplied]  

11.4.11 This Court in V. Kishan Rao v. Nikhil Super Speciality  

Hospital31  has opined that the Bolam test requires re-

consideration. A.K. Ganguly, J. speaking for this Court,  

observed that:  

“23. Even though Bolam test was accepted by this Court as  

providing the standard norms in cases of medical negligence, in  

the country of its origin, it is questioned on various grounds. It  

has been found that the inherent danger in Bolam test is that if  

the courts defer too readily to expert evidence medical  

standards would obviously decline. Michael Jones in his  

treatise on Medical Negligence (Sweet and Maxwell), 4th Edn.,  

2008 criticised the Bolam  test as it opts for the lowest common  

denominator. The learned author noted that opinion was  

gaining ground in England that Bolam test should be restricted  

to those cases where an adverse result follows a course of  

treatment which has been intentional and has been shown to  

benefit other patients previously. This should not be extended  

to certain types of medical accidents merely on the basis of how  

 31 (2010) 5 SCC 513 : (2010) 2 SCC (Civ) 460

58  

common they are. It is felt “to do this would set us on the  

slippery slope of excusing carelessness when it happens often  

enough” (see Michael Jones on Medical Negligence, para 3-039  

at p. 246).  

25. Even though Bolam test “has not been uprooted” it has  

come under some criticism as has been noted in Jackson &  

Powell on Professional Negligence (Sweet and Maxwell), 5th  

Edn., 2002. The learned authors have noted (see para 7-047 at  

p. 200 in Professional Negligence) that there is an argument to  

the effect that Bolam  test is inconsistent with the right to life  

unless the domestic courts construe that the requirement to take  

reasonable care is equivalent with the requirement of making  

adequate provision for medical care. In the context of such  

jurisprudential thinking in England, time has come for this  

Court also to reconsider the parameters set down in Bolam test  

as a guide to decide cases on medical negligence and specially  

in view of Article 21 of our Constitution which encompasses  

within its guarantee, a right to medical treatment and medical  

care.  

26. In England, Bolam test is now considered merely a “rule of  

practice or of evidence. It is not a rule of law” (see para 1.60  

in Clinical Negligence by Michael Powers QC, Nigel Harris and  

Anthony Barton, 4th Edn., Tottel Publishing). However, as in  

the larger Bench of this Court in  Jacob Mathew v. State of  

Punjab,  Lahoti, C.J. has accepted Bolam test as correctly  

laying down the standards for judging cases of medical  

negligence, we follow the same and refuse to depart from it.”

      [emphasis supplied]  

59  

11.4.12 More recently, this Court in Arun Kumar Manglik v.  

Chirayu Health and Medicare (P) Ltd.32 has held that the  

standard of care as enunciated in Bolam (supra) must evolve  

in consonance with its subsequent interpretation adopted by  

English and Indian courts.   

11.4.13 Applying the aforesaid principles to the facts of the  

present case, Appellant Nos. 2 and 3 viz. Dr. G.S. Kochhar  

and Dr. Naveen Jain, the Consultant Paediatricians,  

undoubtedly possessed the skill and qualifications of a  

Paediatrician, and the baby was placed under their direct  

care and treatment from birth till he was 3 ½ months old.  

They owed a duty of care to the baby and his parents.  

Appellant No.4- Dr. S.N. Jha, the Senior Consultant  

Ophthalmologist, who was engaged by the Appellant No.1-

Hospital, and was the specialist in the Ophthalmology  

Department, ought to have followed the standard protocol for  

screening the Respondent No.1-baby for ROP, which is  

prescribed at the chronological age of 3 to 4 weeks after  

birth.   

 32 (2019) 7 SCC 401

60  

11.4.14 Appellant Nos.1 to 3 are liable for medical negligence  

since at no stage were the parents of Complainant No.1  

either advised or guided about the possibility of occurrence of  

ROP in a premature baby, nor was the baby examined by  

Appellant No.4, the Ophthalmologist as per standard  

protocol. The doctors ought to have been fully aware of the  

high chances of occurrence of ROP in a pre-term baby. The  

lack of care constitutes a gross deficiency in service.   

  After discharge on 29.04.2005, the baby was brought  

on 04.05.2005 at the chronological age of 5 weeks. Even on  

this date, no ROP test was either advised or conducted.   

  The baby was brought for a further follow up check-up  

on 13.07.2005, by which time the baby was 3 ½ months  

old. Even on this visit, the Appellants did not advise or  

guide the Respondent No.2-Complainant to have the ROP  

test conducted.   

11.4.15 After reviewing the medical literature setting out the  

contemporaneous standards and established protocols on  

ROP, the reasonable standard of care for a premature baby,  

mandates screening and checking up for ROP. It is a  

medically accepted position that ROP is a reversible disease,

61  

if diagnosed up to Stage 3. Had the ROP test been conducted  

by the Appellants, there would have been timely detection of  

the onset of ROP, which at that stage would have been  

reversible.   

  On account of the negligence of the Appellants 2 to 4,  

the disease remained undiagnosed. It came to be diagnosed  

on 03.12.2005, when the baby was 8 months old, by Shroff  

Charity Eye Hospital. By this time, the ROP had reached  

Stage 5, when it becomes irreversible leading to total  

blindness of the Respondent No.1- baby.  

11.4.16 We affirm the findings of the National Commission to  

hold that the Appellant No.1-Hospital, Appellant Nos. 2 and  

3- the Paediatricians, and Appellant No.4 – Dr. S.N. Jha, the  

Senior Ophthalmologist, owed a legal duty of care to the  

Complainants/Respondents No.1 and 2. The failure to inform  

the Respondent No.2-mother 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 to 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

62  

was 3 ½ months old, amounted to gross negligence by the  

Doctors, and deficiency of service by the Hospital. The  

consequential damage caused to the baby by not having  

conducted the mandatory ROP test, which led to the total  

blindess of the baby, has given rise to an actionable claim of  

negligence.   

11.4.17 It is well established that a hospital is vicariously liable  

for the acts of negligence committed by the doctors engaged  

or empanelled to provide medical care.33  It is common  

experience that when a patient goes to a hospital, he/she  

goes there on account of the reputation of the hospital, and  

with the hope that due and proper care will be taken by the  

hospital authorities. 34 If the hospital fails to discharge their  

duties through their doctors, being employed on job basis or  

employed on contract basis, it is the hospital which has to  

justify the acts of commission or omission on behalf of their  

doctors. 35    

 33 Savita Garg v. National Heart Institute (2004) 8 SCC 56; Balram Prasad (2014) 1 SCC  384 : (2014) 1 SCC (Civ) 327; Achutrao Haribhau Khodwa v. State of Maharashtra (1996) 2  SCC 634; V. Krishnakumar v. State of Tamil Nadu, (2015) 9 SCC 388 : (2015) 4 SCC (Civ)  546   34 Savita Garg v. National Heart Institute (2004) 8 SCC 56 : (2004) 8 Scale 694  35 Savita Garg v. National Heart Institute (2004) 8 SCC 56 : (2004) 8 Scale 694

63  

11.4.18 Accordingly, we hold Appellant No.1-Hospital to be  

vicariously liable for the acts of omission and commission  

committed by Appellant Nos. 2 to 4.  We hold all the  

Appellants as being jointly and severally liable to pay  

compensation to the Complainants.  

11.5   Compensation  

11.5.1   Having affirmed the findings recorded by the National  

Commission on the question of medical negligence and  

deficiency in service by the Appellants, the issue whether  

the compensation awarded by the National Commission was  

just and reasonable is required to be determined.   

  The Complainants had claimed Rs. 1,30,25,000/- as  

compensation before the National Commission. The National  

Commission vide the Impugned Judgment awarded a total  

sum of Rs. 64,00,000/- to the Complainants along with  

interest.   

11.5.2 This Court vide Order dated 06.11.2019 directed the  

Appellants to release a sum of Rs.5,00,000/- (Rupees Five  

Lakhs) in favour of the Respondent No.2-Complainant from

64  

the amount lying deposited by the Appellant No.1-Hospital  

in the Court.    

 This Court further directed the  

Complainant/Respondent No.2 to file an affidavit regarding  

the education received by the Respondent No.1, and the  

level of proficiency he had attained.   

11.5.3  Accordingly, the Respondent No.2- Complainant has stated  

on affidavit that the Respondent No.1, who is now 14 years  

old, was studying in a Government Senior Secondary School  

for Blind Boys, Kingsway Camp from 2013 to 2017, and  

barely received education for 4 years, up to 5th standard.   

The Respondent No.1 was forced to leave school since the  

Respondent No.2-Complainant was unable to bear his  

educational, co-curricular and transportation expenses. The  

father of Respondent No.1, who was working as a security  

guard with the Municipal Corporation of Delhi, had expired  

in 2013. The Respondent No.2-Complainant stated that she  

is currently employed as a part-time receptionist since  

2017, and earns Rs. 5,500/- per month as salary, and  

receives Rs. 2,500/- per month under the Delhi Vidhwa  

Pension Yojna. She further stated that Respondent No.1

65  

received Rs. 2,500/- per month under the Delhi  

Government’s Scheme for Subsistence Allowance to Persons  

with Special Needs.   

11.5.4  The grant of compensation to remedy the wrong of medical  

negligence is within the realm of law of torts. It is based on  

the principle of restitutio in integrum. The said principle  

provides that a person is entitled to damages which should  

as nearly as possible get that sum of money which would  

put him in the same position as he would have been if he  

had not sustained the wrong.36   

11.5.5 In our considered view, having regard to the finding that the  

medical negligence in the instant case occurred in 2005,  

and the litigation has been pending before this Court for  

over 3 years, coupled with the fact that the additional  

monthly expenses such as the care of an attendant/nurse,  

educational expenses of the patient in a special school,  

assistive devices etc. have not been taken into account, it  

would serve the ends of justice if the compensation awarded  

 36 Livingstone v. Rawyards Coal Co., (1880) LR 5 AC 25 (HL)]; followed in Malay Kumar  Ganguly v. Sukumar Mukherjee, (2009) 9 SCC 221 : (2009) 3 SCC (Civ) 663 : (2010) 2 SCC  (Cri) 299 and V. Krishnakumar v. State of T.N., (2015) 9 SCC 388 : (2015) 4 SCC (Civ) 546;  Balram Prasad v. Kunal Saha, (2014) 1 SCC 384 : (2014) 1 SCC (Civ) 327

66  

by the National Commission is enhanced, by a further  

lump-sum amount of Rs. 12,00,000 (Rupees Twelve Lakhs).   

11.5.6 In conclusion, we pass the following directions to secure the  

interest and welfare of Respondent No.1. These directions  

are being passed to ensure that the compensation received  

is utilized for the welfare of Respondent No.1, to enable him  

to acquire suitable education and equip him to become self-

reliant.   

 We direct that the compensation of Rs. 76,00,000/-  

awarded to the Respondent No.1- Master Rishabh Sharma  

s/o Mrs. Pooja Sharma (in C.A. No. 6619 of 2016), be  

utilized in the following manner:  

a) Rs. 60,00,000/- (Rupees Sixty Lacs Only) is allocated  

exclusively for Respondent No.1- Master Rishabh Sharma  

for his education, welfare, and sustenance;   

b) Rs. 15,00,000/- (Rupees Fifteen Lacs Only) is allocated to  

Mrs. Pooja Sharma, the mother of Master Rishabh Sharma,  

as his care-giver, after deduction of an amount of  

Rs.5,00,000/- already disbursed to her.;  

c) Rs. 1,00,000/- (Rupees One Lac Only) is awarded towards  

litigation costs, payable to Mr. Jai Dehadrai, Advocate and

67  

Mr. Sidharth Arora, Advocate, who have represented the  

Complainants on a pro bono basis (as stated by them) in  

this Court.  

11.5.7  The amount of Rs. 60,00,000/- awarded to Master Rishabh  

Sharma shall be disbursed in the following manner:  

A. Rs. 50,00,000/- be deposited in a Five Years’ Post  

Office Time Deposit Scheme in the name of Master  

Rishabh Sharma with Mrs. Pooja Sharma as his  

natural guardian. Let five deposits in multiples of Rs.  

10,00,000/- each be made. The deposits shall be  

opened in the Post Office Savings Bank Account of  

the Supreme Court Post Office, New Delhi. The  

account shall be operated by Mrs. Pooja Sharma  

under the supervision of the concerned Registrar of  

this Court.   

 The aforesaid five deposits aggregating to  

Rs.50,00,000/- will fetch Master Rishabh Sharma an  

annual interest income of Rs.3,85,000/, which will  

be credited into a Savings Account with the Post  

Office. Out of the said sum, Rs.1,50,000/- shall be  

invested annually in a 15 Year Public Provident Fund

68  

(“PPF”) Account to be opened in the name of Master  

Rishabh Sharma with UCO Bank, Supreme Court,  

Tilak Marg, New Delhi. These yearly investments,  

going by the provisions of the Income Tax Act, 1961,  

will be tax free.  

 After having invested Rs.1,50,000/- every  

year in a PPF account, the rest of the yearly income  

amounting to Rs.2,35,000/- p.a. (from and out of  

Rs.3,85,000/-)  which is equivalent to about  

Rs.20,000/-per month, shall be utilized by  

Respondent No.2- Mrs. Pooja Sharma for the  

education and upbringing of Respondent No.1.  

B. Rs.4,50,000/- shall be deposited in a Five Year Post  

Office Monthly Income Scheme Account (“MIS  

Account”) with the Supreme Post Office in the name  

of Master Rishabh Sharma so that it will give him  

monthly interest of 7.6% p.a., that is to say  

Rs.2,850/- per month, which shall be utilized by his  

Mrs. Pooja Sharma primarily for the upbringing of  

Respondent No.1.  

69  

C. The balance of Rs. 5,50,000/- from the amount  

deposited by the Appellants, shall be invested in a  

Five Year Fixed Deposit Account (“FD Account”) to  

opened with UCO Bank, Supreme Court, Tilak Marg,  

New Delhi in the name of Master Rishabh Sharma.  

The interest accruing therefrom may be utilized by  

Mrs. Pooja Sharma in such manner as is deemed  

appropriate.   

D. These investments will ensure an annual income of  

approximately Rs. 4,50,000/-. With the investment  

of Rs. 1,50,000/- in a PPF Account, which will be tax  

free, as the annual income of Rs. 3,00,000/- will be  

within the permissible tax exemption limit of Rs.  

3,00,000/- plus Rs. 75,000/- (Disability Allowance  

under Section 80U of the Income Tax Act,1961).   

E. All these deposits on maturity shall be re-invested by  

Respondent No.2 – Pooja Sharma with the  

concurrence of the concerned Registrar of this Court  

on such terms, which will fetch a high rate of  

interest, and preserve the corpus for the benefit of  

Respondent No.1. At no stage, will the Respondent

70  

No.2 be permitted to withdraw any amount from  

these deposits without the permission of the  

concerned Registrar.  

11.5.8 We direct the concerned Registrar of this Court to be  

associated with Respondent No.2- the mother of Master  

Rishabh Sharma, in giving effect to the directions issued  

hereinabove.   

12. Accordingly, we allow Civil Appeal No. 9461 of 2019 (Diary  

No. 15393 of 2019) filed by the Complainants.   

13. Civil Appeal No. 6619 of 2016 filed by the Hospital and the  

Doctors is dismissed. The Appellant Nos. 1 to 4 in Civil  

Appeal No. 6619 of 2016 are directed to deposit the balance  

amount of. Rs. 44,00,000/- in this Court within a further  

period of 12 weeks from today.   

14.  An affidavit of compliance with respect to the deposit of  

compensation be filed by the Appellants before this Court.   

15.  We have been informed by the Registry of this Court that  

the amount of Rs. 32,00,000/-, which was deposited by the  

Appellants pursuant to Order dated 29.07.2016 of this  

Court, and kept in a Fixed Deposit with UCO Bank, has  

accrued an interest of about Rs. 3,80,954/-. We direct that

71  

this interest amount be made over to Mrs. Pooja Sharma,  

the mother and care-giver, for the welfare and education of  

Master Rishabh Sharma, for the current year.  

16. The original medical records be returned by the Registry to  

the counsel for the Appellant No.1-Hospital.    

Pending Applications, if any, are accordingly disposed of.  

Ordered accordingly.   

…..……...........................J.  (UDAY UMESH LALIT)  

..….……..........................J.  (INDU MALHOTRA)  

 New Delhi  December 16, 2019.