PER MR. ROHIT KUMAR SINGH, MEMBER

1. These Cross Appeals have been filed against the impugned Order dated 11.04.2018 in Complaint No. CC/2017/80 passed by the State Consumer Disputes Redressal Commission, Chhattisgarh, vide which the Complaint was partly allowed.
2. These Appeals arise from the same Complaint, and therefore they are being disposed of by this common Order. However, for the sake of convenience, FA/1134/2018 is treated as the lead case, and the nomenclature for the parties are followed as under this Appeal.
3. The facts leading up to the present Appeal are that the Complainant/Respondent No. 1 Murli Ram, who is a constable posted in the CISF at Raipur Airport, and his wife, Complainant/Respondent No. 2 Pooja Kumari, who is a housewife, faced severe hardship after their son, Sahil Prasad, born prematurely, lost his vision due to alleged medical negligence by the Appellants. Following their marriage on January 29, 2015, Pooja Kumari became pregnant in June 2015. Initially, she underwent prenatal care in Dhanbad before returning to Raipur, where further tests were conducted under the care of Dr. Jyotsna Gandhi Gupta. On December 19, 2015, when Pooja Kumari experienced premature water leakage, she was admitted to the hospital. Dr. Jyotsna Gandhi Gupta was unavailable, so Dr. Veronica Irin Yuel took over, who initially managed the condition. However, the next morning, Pooja experienced intense pain, and an emergency operation was performed, leading to the premature birth of Sahil at 32 weeks. The hospital lacked a Neonatal Intensive Care Unit (NICU), so Sahil was transferred to another hospital for further care.
4. Sahil remained in the NICU for 54 days, from December 20, 2015, to February 11, 2016, where he received treatment, including oxygen therapy, which caused damage to his nasal structure. During this period, multiple eye examinations were conducted by the doctors and hospitals, including the Appellants, who assured them that Sahil’s vision was normal. However, despite follow-up visits, the Complainants were later referred to Shankar Netralaya in Chennai, where they discovered the severity of Sahil’s condition—stage 5 Retinopathy of Prematurity (ROP) with total retinal detachment, resulting in permanent blindness.
5.  It is the case of the Complainants that due to the negligence of the Appellants, who failed to properly diagnose and treat Sahil’s condition in time, they have suffered irreparable loss. The delay in proper care led to Sahil losing his eyesight permanently. Despite repeated visits and follow-up requests, the Appellants assured them that everything was normal, preventing them from seeking earlier and potentially lifesaving intervention for their son's eyesight.
6. The Appellants’ actions, according to the Complainants, constitute gross negligence and severe clinical neglect, causing not only financial losses due to improper medical care, but also immense mental anguish and distress. Aggrieved by medical negligence on the part of the Appellants, the Complainants filed their Complaint before the Ld. State Commission, Chhattisgarh.
7. The State Commission, vide its order dated 11.04.2018 partly allowed the complaint against the Opposite Party No. 4 and Opposite Party No. 6 and directed that:

“i) The O.P. No. 4-Dr. Charudutta Kalamkar & O.P. No. 6- Shri Ganesh Vinayak Eye Hospital, will jointly and severally pay a sum of Rs. 6,00,000 to the Complainants within 45 days of date of this order.

ii) The O.P. No. 4 & O.P. No. 6, will jointly and severally pay interest @12% p.a. on the above amount from the date of filing of the Complaint i.e. 28.11.2017 till date of realization.

iii) The O.P. No. 4 & O.P. No. 6, will jointly and severally pay Rs. 10,000 towards cost of litigation to the Complainants.”

8. Ld. Counsel for Appellants has argued that Sahil was born prematurely at 32 weeks with a low birth weight of 1140 grams and required specialized medical care, including screening for Retinopathy of Prematurity (ROP), a condition common in preterm babies. After his birth, Sahil was admitted to Respondent No.7 Hospital from 20.12.2015 to 11.02.2016, where his health was monitored. During this period, he was examined by the appellants as part of his follow-up care.
9. The initial eye examination was conducted by Appellant No.1, three weeks after birth, with subsequent check-ups indicating the need for laser treatment, which was administered on 15.02.2016. Post-treatment, Sahil's condition appeared to be improving, and the Appellants instructed Respondent No. 1 and 2 to return for regular follow-ups to monitor the progress. Despite these instructions, the Respondent No. 1 and 2 did not return for further follow-ups until September 2016, a gap of seven months. By then, Sahil's condition had worsened, with significant retinal damage, prompting an urgent referral to higher medical centers like AIIMS, Delhi, or Sankara Nethralaya, Chennai. This delay in follow-up directly contributed to the deterioration of Sahil’s condition. The Appellants acted according to standard medical protocols, including timely diagnosis, laser treatment, and clear follow-up instructions. The State Commission, however, found them liable, suggesting that an earlier referral to a higher centre was necessary, which was unwarranted at the initial stages of treatment.
10. Ld. Counsel for Appellants has further argued that the State Commission did not adequately consider the treatment records, which lacked any documentation of follow-up visits between February and September 2016. The Respondent No. 1 and 2 submitted OPD bills dated 10.03.2016 and 26.03.2016 under the name “Pooja Kumari” with no charges, suggesting that Sahil was not examined during those visits. This lack of proper follow-up was critical, as timely monitoring is essential for managing ROP effectively.
11. It was argued by the Ld. Counsel for Appellants that there is also no evidence of any visits or examinations on 28.02.2016, contrary to the Respondent No. 1 and 2’s claims. The records, including follow-up sheets and ROP screening forms, do not support the claim of such visits, indicating a failure on the part of the parents to adhere to the follow-up schedule. This failure contributed significantly to the worsening of Sahil's condition.
12.  In addition, Ld. Counsel for Appellants has further argued that the State Commission ignored the medical literature and evidence submitted, which demonstrated that their approach to Sahil’s treatment adhered to standard protocols. There was no evidence of incompetence or negligence in their management of the case, and the State Commission’s findings were based on assumptions rather than documented facts. This Commission in “Baby Palak Khan v. Dr. Amit Upadhyay & Ors., CC/1074/2016” and “Dr. Trupti Sharma v. Bhavik Mahajan, FA/253/2021”, has held that where delays in parental follow-up are recognized as key factors in the progression of ROP, the doctors are not to be held liable. The State Commission should have recognized this case as one of parental neglect rather than medical negligence.
13. Ld. Counsel for Respondent No. 1 and 2/Complainants has argued that the State Commission erred by awarding a meagre compensation of Rs. 6,00,000/-, which does not adequately account for the expenses incurred during the treatment. The Complainants had presented evidence of significant financial costs, and the awarded amount fails to reflect the actual burden faced, warranting a reconsideration and modification of the order. The State Commission overlooked critical evidence, such as the report from Shankar Netralaya. This report indicated that the child Sahil suffered severe vision loss due to the negligent treatment provided by the Appellants, ultimately leading to blindness. This report should have led to a higher compensation amount, especially considering the lifelong impact on the child’s quality of life.
14. Ld. Counsel for Respondent No. 1 and 2 further argued that the report from Shankar Netralaya highlighted the child’s serious condition upon admission, with total retinal detachment and a poor visual prognosis, even with potential surgical intervention. This clearly points to the failure of the initial treatment by the Appellants. Moreover, additional findings in a document from Shankar Netralaya, which detailed the child’s deteriorating condition, including closed funnel retinal detachment and the need for further specialized opinion should not have been overlooked by the State Commission. This documentation clearly demonstrated the severity of the harm suffered by the child due to the negligent treatment, and the compensation awarded by the Commission fails to reflect the gravity of the situation.
15.  In addition, the Ld. Counsel for Respondent No. 1 and 2 has also argued that the State Commission’s reliance on medical literature provided by the Appellant No. 1 was not justified. The State Commission did not clarify how the literature supported the Appellants’ position, whereas the same literature actually supports the notion of deficiencies in the treatment provided by the Appellants. The failure to address this point, led to an unfair outcome, and therefore the impugned Order warrants modification to ensure that fair compensation is provided for the lifelong challenges the Complainants will face.
16. This Commission has heard the Ld. Counsel for the Appellants and Respondents, and perused the material available on record.
17. In the case of “Jacob Mathews v. State of Punjab & Anr. (2005) 6 SCC 1” the Hon’ble Supreme Court has held that “Negligence in the context of 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, 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.” In this case it was also held that “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.”
18. In the instant case, the first eye examination of the newborn child was done at Shri Ganesh Vinayak Eye Hospital by Dr. Charudutta Kalamkar on 14.01.2016 which is the standard international protocol for ROP. The subsequent follow up was done on 28.01.2016, at 2 weeks interval, which is the international protocol for ROP. Complications of ROP (plus disease) were diagnosed and urgent laser treatment was advised on 12.02.2016. First sitting of laser treatment was conducted on 15.02.2016, the consent form for which was signed by parents of the child. Next follow up was advised to the patient after 5 days on 20.02.0216. After 20.02.2016, parents of the child were advised to come after 7 days but they came on 12.09.2016 that is, after 7 months, which is a substantial delay and may have resulted in retinal detachment in both eyes and this can occur even after laser treatment. The child was immediately referred to a higher centre. The point of contention is whether a reasonable standard of care was followed by Dr. Charudutt Kalamkar. In the case of “Girishchandra V Bhatt & Ors. v. Sterling Hospital First Appeal No. 2491 OF 2017”, it was held that “It is settled law that the onus to prove medical negligence lies largely on the complainant and that this onus can be discharged by leading cogent evidence. A mere averment in a complaint by no stretch of imagination, be said to be evidence by which the case of the complainant can be said to be proved.” In the instant case, medical negligence of the doctor could not be proved as standard procedure was followed by him. However, there is prima facie negligence on the part of the parents of the child who did not follow up for 7 months despite explicit instructions from the doctor.
19. The parents of the child approached Sanakara Netralaya on 18.10.2016. However, they were advised to approach the higher centre on 12.09.2016. The question for consideration is whether non-referral of patient to specialist or higher centre amounts to deficiency in service or medical negligence of the treating doctor/hospital? In the case of “Malhe Ram v. Jeevan Jyoti Hospital Revision Petition No. 102 of 2018”, it was held that by this Commission that since “the patient was critical and unless his condition gets stabilized, shifting the patient to higher center was not advisable.”
20. In the case of “M.A. Biviji v. Sunita & Ors. Civil Appeal No. 3975 of 2018” it was held that “To hold a medical practitioner liable for negligence, a higher threshold limit must be met. This is to ensure that these doctors are focused on deciding the best course of treatment as per their assessment rather than being concerned about possible persecution or harassment that they may be subjected to in high-risk medical situations. Therefore, to safeguard these medical practitioners and to ensure that they are able to freely discharge their medical duty, a higher proof of burden must be fulfilled by the complainant. The complainant should be able to prove a breach of duty and the subsequent injury being attributable to the aforesaid breach as well, in order to hold a doctor liable for medical negligence. On the other hand, doctors need to establish that they had followed reasonable standards of medical practice.” In the instant case, no breach of duty was proved by the child’s parents as the doctor had followed the standard medical practice.
21. In view of the discussion above, we find that there was no negligence on the part of Dr. Charudutta Kalamkar or Shri Ganesh Vinayak Eye Hospital. Consequently, the order passed by the State Commission is reversed and the complaint is dismissed. Both these Appeals stand disposed off accordingly.
22. Parties to bear their own costs of litigation.
23. All pending applications, if any, stand disposed off accordingly.