Central Delhi


GIRISH MATHUR - Complainant(s)



05 Sep 2023


Complaint Case No. CC/297/2015
( Date of Filing : 23 Oct 2015 )
Dated : 05 Sep 2023
Final Order / Judgement

Before  the District Consumer Dispute Redressal Commission [Central], 5th Floor                                                   ISBT Building, Kashmere Gate, Delhi

                                      Complaint Case No. 297/23.10.2015


Sh. Girish Mathur s/o Late Dr. B.P. Mathur

E-7E, MIG, DDA Flats, Mayapuri,

New Delhi-110064.                                                             …Complainant


OP-1. Dr. B.L. Kapur Memorial Hospital/

Medical Superintendent

Pusa Road, New Delhi-110005.


OP-2. Dr. Rajan Madan, Sr. Consultant Surgeon,

Dr. B.L. Kapur Memorial Hospital

Pusa Road, New Delhi-110005.                                                           ...Opposite Party

                                                                                    Date of filing              23.10.2015

                                                                                    Date of Order:            05 09.2023

Coram: Shri Inder Jeet Singh, President

                Ms. Shahina, Member -Female

                 Shri Vyas Muni Rai,    Member



Inder Jeet Singh , President


1.1. (Introduction to the consumer dispute of parties) – The complainant filed this complaint against treating hospital/OP1 and treating doctor/OP2 on twin allegations of medical negligence as well as putting him to uncalled second surgery, for which extra amount of Rs.3,29,636/- was charged from the complainant. Whereas there was package of treatment, which included surgery, implant, room charges, doctors visit and other miscellaneous expenses for contracted amount of Rs. 1,33,750/-. There was also deficiency of services and the complainant claims return of the extra charged amount from OP1 along with interest at the rate of 18% pa besides compensation of Rs. 10,00,000/- and costs of Rs. 70,000/- & other relief against both OPs.

1.2. The complaint is opposed OPs that neither there was any medical negligence or other negligence or deficiency of services, since first surgery was uneventful, the things developed later on were also taken care of to meet the eventuality with the consent of complainant and his family members for other re-exploration. Nothing was charged extra but as per norms. The complainant is not entitled for any claim or relief.

2.1. (Case of complainant) – The complainant was very senior Executive working in a reputed company and he attained superannuation recently. The OP1 is a reputed hospital, it projects super-specialty hospital specializing in medical fields inclusive of intricate surgical procedures. OP2 is a renowned surgeon, attached with OP1.

2.2. On 28.11.2014, the complainant felt uneasiness and swelling in abdomen, he consulted OP2 (who is associated with OP1), he advised Hematology tests, ultra sound and x-ray chest (PA view). The prescribed tests were got conducted from Department of Laboratory Medicine, Apollo Clinic on 07.12.2014, wherein it was observed Hb (Hemoglobin) at 13.5 gm/dL and Umbilical Hernia. Since OP1 being super-specialty hospital, the complainant was attracted by its projection that complainant would be in safe hands as regard nursing and post-operative care and OP2 is a surgeon, attached with OP1.

2.3. On 12.12.2014, the complainant got admitted in the hospital of OP1. During pre-operative consultation, the complainant was made to believe that surgical procedure will be performed by OP2 and it will be a minor surgery under GA, he will be discharged within two days. The OP1 also gave estimate of Rs. 1,33,750/- as total  package, which includes charges for surgery, implant, room charges, doctors' visits and other miscellaneous expenses. The complainant never consented for laparoscopy procedure. All paper works were completed on 12.12.2014. Thence, procedure for Laparoscopic Ventra hernia repair with dual mesh was performed by OP2 under GA on 13.12.2014.

2.4. Soon after the aforementioned surgery, the complainant developed abdominal distension with acute pain which was reported to nursing staff of OP1 and to OP2, but they failed to diagnose the cause for next two days and complainant continued to suffer immense pain and discomfort. The complainant started sinking after two days, then only his blood test was conducted, which revealed that his Hb has fallen to 5.7 gm/dL.,  which realized OPs that complainant was having severe internal bleeding. As advised by OPs,  the complainant was operated under emergency condition, his abdomen was opened under GA on 15.12.2014. It was a major operation, which lasted for several hours. However, even in this surgery, no bleeding source could be deducted by the operating team, the abdomen was washed and closed after drain.

2.5. Although the second operation was because of serious lapse and despite it, on 17.12.2014 a doctor came at the bed of complainant, the said doctor was carrying ultrasound in his hand and file being carried was of other cancer patient of bed no. 11, the complainant was treated by him as a cancer patient and asked [the complainant and his wife present] about earlier CT scan reports of cancer treatment. The complainant was just recovering from second surgical shock and the negligence of that visiting doctor further put trauma to the complainant, which had adverse affect on his recovery. The complainant was discharged on 14.12.2014, he visited and followed the advices of OPs post surgery.

2.6. Thus, there is deficiency of service and negligence by OPs as they failed to timely diagnose cause of discomfort and abdominal distension, which appeared immediately after the surgical procedure for full two days. Moreover, the OPs started initiation only when the complainant was on the verge of collapse.

2.7. The OP1 raised bill of Rs. 4,66,633.46p in place of contracted package of Rs. 1,33,750/-. The complainant requested for concession, since it was exaggerated bill but OP2 refused it with certain remarks. Complainant’s wife also approached Medical Superintendent for appropriate concession in the bill, it was also refused. However, the bill raised was illegal and arbitrary, the complainant had no option but to pay the extra bill amount to seek his discharge from the hospital.

2.8. The complainant compiles these circumstances in compact form in para no. 25 of his complaint that there was negligence on the part of OPs as well as the complainant had to suffer not only risks, pain, trauma physically and mentally but also he had to spend more days in the hospital coupled with payment of extra bill/charges of Rs. 3,29,636/- besides loss of income that too at fag end of his career. The complainant got served legal notice dated 22.01.2015 to OP1 for refund of excess amount charged along-with interest, followed by a reminder dated 15.03.2015 but OP1 gave reply dated 12.05.2015, while reverting the allegations. That is why, the present complaint.

            The complaint is accompanied with record of prescriptions, laboratory test, ultrasound, cashless form, estimated cost of hospitalization of Rs. 1,37,750/- (being for three days); discharge summary (DOA-12.12.2014 & DOD-24.12.2014); other bills with summary, legal notice dated 22.01.2015, final legal notice dated 15.03.2015 and its reply dated 12.05.2015 by OP1.

3.1 (Case of OP1 and OP2)- The OP1 and OP2 filed their joint written statement, OP1 authored the reply under the signature of Dr. Sanjay Mehta, AR of OP1 and the reply is also authored by OP2 himself. Reply is supported by their respective affidavit. The reply does not dispute about the admission of complainant as indoor patient for his surgery and treatment but all allegations of negligence, deficiency of services and of extra charges are denied by them.

3.2. The complainant had visited OP2’s clinic on 28.11.2014 with complaints of swelling around umbilicus for 3-4 months, for which he was provisionally diagnosed being a case of para-umbilical hernia. The complainant was advised laparoscopic repair of the hernia and to do it, he was also advised certain investigations to ascertaining/declare him fit for surgery. He got relevant investigation done from another lab and on the basis of evaluation of those reports, he was found and declared fit for surgery. In the ultra sound report, it shows umbilical hernia of such size that the intestinal loops could be seen when the patient was coughing. The complainant was admitted in the hospital and also operated upon, however, at no point of time it was told to the patient that procedure to be performed was of a minor surgery case, which is also evident from the ultra-sound report got done from another Lab. for surgery. Moreover, complainant has also been consulting his brother, a general surgeon, in Jaipur that it was not a case of minor surgery, especially when the complainant was a diabetic patient. It is well known that a patient undergoing laparoscopic surgery usually does not need more than one and two days stay in the hospital, however, the complainant was aware that there was chances of having complications due to co-morbidity of diabetes mellitus and hyper tension were relatively higher. Moreover, the complainant also made clear to OP2 that he would stay for a longer period than two days in the hospital because of co-morbidity. Because of that reason, the financial counseling and financial estimate for three days were given to the complainant.

3.3. The estimate means provisional cost of treatment and surgical procedure over a period of three days for various services during the treatment for laproscopic surgery, which was consented by the complainant and his wife and accordingly estimate of Rs. 1,33,750/- were provided. It is matter of policy that no patient is taken to OT without the written consent/ consent form of patient or its relative. The laproscopic surgery performed is not disputed.

3.4. The OPs denied other allegations that doctors could not diagnose post operative problems for two days. Whereas the facts are that soon after the surgery, the patient did not have any abdomen dissention. He was taken up as the first operation of that day by the surgical team and post-operatively, he was observed in the recovery room for two hours and when treating team in the post-anesthesia room were satisfied about the stability of vitals (pulse, BP, oxygen concentration in the body and overall comfort level of the patient), he was shifted to his room. The duty doctors and nurses were continuously monitoring his vitals.

            The treating Consultant visited Mr. Girish Mathur at about 11 am on the 14.12.2014 (Sunday) and found him sitting in the chair with satisfactory urine output and vitals and having his meal. On the evening of 14.12.2014, another Consultant from the treating team and physician visited the patient and found him haemodynamically stable. Since he was diabetic, his blood sugar monitoring revealed satisfactory levels. In the morning of 15.12.2014, when patient was examined, there were no remarkable clinical findings suggestive of internal bleeding. Patient was haemodynamically stable. However, in view of complainant suggestive complaint of giddiness and mild fever, routine investigations were requested as per established principle of medical care, the patient was stable throughout a day. Then, doctor on duty noticed that the patient has developed pain abdomen and pallor with fever, immediately ultrasonography was advised and process of possible re-exploration was initiated. The OPs do not deny para-16 of the complaint to the extent of record; it is quite possible that as per established practice of medicine, bleeding had stopped spontaneously. As a matter of abundant precaution, the operating surgeon had spent adequate time to ascertain for active bleeder, if any. Moreover, the operating surgeon has also sought expertise of another senior surgeon for the interest of patient. The patient recovered fully after re-exploration. Had the surgeon missed any active bleeder, the patient would not have recovered after re-exploration. The bleeding could have occurred as a reactionary hemorrhage, which is well known entity in hypertensive patient. The patient and attendants are explained of such complications during the process of obtaining consent.

3.5. The complainant also visited the treating consultant two times post discharge from the hospital. The patient was well till 15.12.2014, when he complained of giddiness, however, all necessary precautions were taken keeping in view various probabilities. The complaint is without cause of action, it is liable to be dismissed.   

5.1. (Evidence)- In order to establish the complaint, complainant Shri Girish Mathur led evidence by filing his detailed affidavit on the lines of complaint with the support of documents filed with  the complaint.

5.2. The OPs led evidence by filing of affidavit of Dr. Rajan Madan, who is OP2 [one of authors of reply], it is also on the lines of reply of OPs.

5.3 On 15.09.2016 the OPs had filed an application for expert opinion by expert medical committee and application was allowed by order dated 13.10.2016 by Ld. Predecessors. The opinion of Medical Board was received on 12.05.2017 vide report dated 10.03.2017 (opining no medical negligence).

6.1 (Final hearing)- The complainant and the OPs filed their respective written final arguments and it was followed by oral submissions by Sh. Nahim Aman, Advocate for complainant and on the other-side by Shri Rahul Sharma, Advocate for OPs.

6.2. The complainant has filed written arguments heading-wise, otherwise the same are replica of complaint and evidence. It is further supplemented that expert opinion was sought but it cannot be considered, as expert opinion is non-speaking since it does not give any reasons for forming the opinion. It cannot be relied upon on the face of it. OP2, being a doctor attached with the OP1, is contractually bound to perform its obligations. Lastly, the estimate were inflated by more than three times, it is not acceptable at all and generally the estimates may vary + 10%.

6.3.   The OPs also took their stand alike in their reply and evidence that neither there is any medical negligence or other negligence or an extra amount was charged, however, the admissible charges were taken from the complainant for performing surgeries.

The OPs  relies upon  Kusum Sharma and Ors. Vs. Batra Hospital & Medical Research Centre, (2010) 3 SCC 480 while discussing the features, and laying norms, of medical negligence cases, criminal negligence, medical services, standard of care and so on. Further complainant also relied upon Mohit Jain Vs. Max Super Specialty Hospital & Ors. (CC. No. 785/2017-dod 23.03.2023 by NCDRC), wherein, the law on medical negligence and care was discussed apart from that skill of medical practitioner differs from doctor to doctor, since the very nature of the profession is such that there may be more than one course of treatment, which may be advisable for treating a patient. When the patient was attended with care, skill, and the patient still does not survive or suffers a permanent ailment, it would be difficult to hold the doctor to be guilty of negligence. The onus to prove medical negligence lies largely on the claimant and this onus can be discharged by leading cogent evidence.     

              It is apparent from the facts and features of the case as well as their rival contention, therefore, it does not require to re-write their respective detail contentions. It will also be dealt appropriately.

7.1 (Findings)- The contentions of both the sides are considered, keeping in view the  material on record, which also comprises documentary record  besides statutory provisions of law  & case law presented. The plea of complainant is of medical negligence against OP1 and  its treating doctor OP2. Whereas, OPs'  case is  of no medical negligence at any stage of treatment nor of charging extra amount on its counter parts or its doctors; the development taken place after first surgery was also taken care of immediately, which suggest that OPs have performed their duties,  instead of to say case of negligence.  

7.2. Thus, to determine so, it is appropriate at this stage to first refer precedents on the point of medical negligence, test, guidelines and scale to be applied to determine it, ethics involved and so on. The complainant has referred the case of Kusum Batra and Ors Vs. Batra Hospital & Medical Research Centre (supra) and it was also referred in another precedent, which is-

Vinod Jain Vs Santokba Durlabhji Memorial Hospital AIR 2019 SC 1143 [paras, 8 9 and 12], the previous precedent Kusum Sharma & others Vs Batra Hospital & Medical Research Centre & ors AIR 2010 SC 1050 has been referred and relied upon, its relevant paragraphs are Para 22 & 89 -

[Para 8]  "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 à 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"

[para 9]. A fundamental aspect, which has to be kept in mind is that a doctor cannot be said to be negligent if he is acting in accordance with a practice accepted as proper by a reasonable body of medical men skilled in that particular art, merely because there is a body of such opinion that takes a contrary view (Bolam v. Friem Hospital Management Committee -1957 1WLR 582). In the same opinion, it was emphasised that the test of negligence cannot be the test of the man on the top of a Clapham omnibus. In cases of medical negligence, where a special skill or competence is attributed to a doctor, a doctor need not possess the highest expert skill, at the risk of being found negligent, and it would suffice if he exercises the ordinary skill of an ordinary competent man exercising that particular art.

A situation, thus, cannot be countenanced, which would be a disservice to the community at large, by making doctors think more of their own safety than of the good of their patients.

[12]. In para 89 of the judgment in Kusum Sharma & Ors. the test had been laid down as under:

"89. On scrutiny of the leading cases of medical negligence both in our country and other countries specially the United Kingdom, some basic principles emerge in dealing with the cases of medical negligence. While deciding whether the medical professional is guilty of medical negligence following well known principles must be kept in view:

I. Negligence is the breach of a duty exercised 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.

II. Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.

III. The medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires.

IV. A medical practitioner would be liable only where his conduct fell below that of the standard so far reasonably competent practitioner in his field.

V. In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.

VI. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence.

VII. Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one avail-able, he would not be liable if the course of action chosen by him was acceptable to the medical profession.

VIII. It would not be conducive to the efficiency of the medical profession if no doctor could administer medicine without a halter round his neck.

IX. It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessarily harassed or humiliated so that they can perform their professional duties without fear and apprehension.

X. The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals/ hospitals particularly private hospitals or clinics for extracting uncalled for compensation. The malicious proceedings deserve to be discarded against the medical practitioners.

XI. The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professional.


7.3. Since, the complainant was indoor patient in the Hospital of OP1, where OP2 was the treating doctor/surgeon in respect of first surgery and there was also team of surgeon when second surgery was performed. In medical record of discharge summary as well as in the reply, many medical terms are mentioned, their meanings in simple language are referred to appreciate the contentions of parties -

(a) abdomen distention- a disorder abdomen is measurably swollen beyond its normal size. [causes for stomach distension may be because of  (i) Air swallowing (being nervous habit), (ii) build up fluid in abdomen (this can be sign, a serious medical problem) (iii) Gas in the intestine from eating food that are high in fiber (SGG fruit & Veg) and (iv) Irritable bowel syndrome].

(b) umbilicus - Navel (or belly button)

(c) para-umbilical hernia- para umbilical hernia is a weakness in the abdominal wall  at or near the navel through which the contents of abdomen protrude to form a bulge.

(d) Intestinal loops- Blend loop syndrome occurs when food does not move normally through section (loop), of intestines during digestion. Stagnant food can lead to bacterial overgrowth in the gut.

(e) Peritoneal cavity-, the peritoneum is a membrane that lies inside the abdomen and pelvis (parietal layer). It also covers many of organs inside (visceral layer). The space in between these layer is called Peritoneal cavity.

(f) Haemodynamic stability- haemodynamic stability means stable blood flow or blood pressure and heart rate of that person are stable.

(g) Pallor-Pale colouring of face.

(h) Reactionary hemorrhage- Reactionary hemorrhage that occurs within the first 24 hours after surgery.


7.4. It is relevant to mention since certain tests, guidelines and rule has been laid down in precedents Vinod Jain Vs Santokba Durlabhji Memorial Hospital AIR 2019 SC 1143 [paras, 8 9 and 12] & Kusum Sharma & others Vs Batra Hospital & Medical Research Centre & ors AIR 2010 SC 1050, therefore, from that point of view, certain duties are prescribed in the medical profession, they are (i) a duty of care in deciding whether to undertake the case; (ii) a duty of care in deciding what treatment  is to be given and (iii) a duty of care in administration of that treatment.  On failure to observe them, it will be case of medical negligence. Now, the feature of this are taken one by one from that point of view.

8.1. The complainant had consulted OP2 and he was examined by OP2 then further consultation continued in the hospital of OP1, since the complainant was complained of swelling around umbilicus. He was diagnosed a case of para-umbilicus hernia, the complainant was advised to be a case of hernia surgery and decision was taken for laparoscopic repair of hernia surgery. He was advised requisite investigations, which were also performed, vitals were found in range and it was found 'fit for surgery'. He was admitted and then surgery of hysterectomy was performed.  The discharge summary gives complete details.   

On 15.12.2014 the complainant was having mild fever and he complained of giddiness and doctors on duty noticed that complainant had developed pain abdomen and pallor with fever. He was immediately advised urgent ultra -sonography, the process of possible re-exploration was initiated and complainant recovered.

            This clearly proves that OPs had undertaken the duty to entertain the case of complainant for umbilicus hernia and when further things were developed which were attended by re-exploration. There is nothing on record by the complainant that hospital or its doctor were not having qualification or competence to take the case of complainant for his treatment diagnosed, or disease diagnosed by OPs was not correct.  Thus, there is no negligence in respect of  “duty of care in deciding to undertake the initial case of umbilicus hernia and later on re-exploration to wash and drain internal bleeding”.

8.2 Now second point being taken is  'of duty of care in deciding what treatment is to be given'? By taking into account the minute detail given in undisputed discharge summary issued by OPs, that when the complainant came for swelling around umbilicus for 3-4 months, he was provisionally diagnosed a case of para-umbilicus hernia, for which it was advised laparoscopic repair of hernia and it was also performed on 13.12.2014. The complainant has reservations that he was advised repair of hernia under GA but there is no concrete evidence to suggest that the complainant was advised surgery under GA. After the surgery on 13.12.2014, he remained in the hospital of OP1 as indoor patient and as per estimate it was for three days stay.  Till evening of 14.12.2014, the vitals of complainant were found stable, however, it was 15.12.2014 when the doctors of visiting team noticed pallor with fever besides complaint of giddiness, then it was considered case of internal bleeding. It was re-explored, the internal bleeding was washed &  drained, however, source of internal bleeding  could not be ascertained and the internal bleeding had stopped simultaneously. To say, the advises given at first instance to be laparoscopic repair of hernia and then it was performed. On the second instance, the opinion was formed to carry certain tests like ultrasound being case of internal bleeding then it was re-explored. The decision taken by the OPs to carry this treatment was appropriate and there is no allegation by the complainant that the surgeries performed were not the appropriate decision or something else was to be done in place of what OPs have done. Therefore, it is held that there is no negligency on the part of OPs in respect of deciding the treatment to be given. Accordingly, this issue is also decided.


8.3 The third component is of 'duty of care in administration of that treatment', which in fact is continuation of the second aspect, thus this aspect is also being taken in continuous of earlier. After surgery, the complainant remained in hospital of OP1, however, the complainant was not discharged after 3 days, since on 15.12.2014 he developed pain in abdomen pallor with fever and giddiness, which was discovered to be case of internal bleeding and it was re-explored, washed & drained, there was no discovery of source of bleeding.

            By reading the entire record consolidated, there is no iota of evidence by either side that because of laproscopic surgery of hernia, there was bleeding which had accumulated or the internal bleeding was consequent to that surgery. Further it was also not revealed the actual source of bleeding (when re-exploration was done, and then wash & drain the internal bleeding). To say, it has not surfaced in evidence that the internal bleeding was result of laproscopic surgery of hernia or related with the treatment being given to the complainant vis-à-vis was it developed in the natural course of body & bleedings stopped simultaneously. Under these circumstances, when the care of complainant was taken throughout from the inception and the circumstances are not manifesting reason of internal bleeding, it cannot be assumed medical negligence. Simultaneously, complainant’s  case is that after laproscopic surgery and when he was recovering in the ward, he had giddiness and pain the abdomen, it was found case of internal bleeding but the complainant could not establish that the internal bleeding taken place is associated with the laproscopic surgery.  It cannot be construed medical negligence. Therefore, the third aspect also stand answered.


8.4   Thus, it stand established that OPs were not negligent in performing its duty of care in deciding what treatment is to be given and duty of care in administration of that treatment'.  It is also relevant to mention that opinion of Medical Expert Board, which was constituted by the office of Lok Nayak Hospital pursuant to reports sought by the Consumer Forum, and as per report dated 10.03.2017, the medical Board found that treating doctor was qualified surgeon, however, no obvious negligence on the part of treating doctor or hospital was discovered. The complainant has reservation that reasons for such opinion were not given by the medical Board, however, it would not help the complainant since the Forum has sought the expert opinion exclusively without asking the reasons. Otherwise, the opinion by the expert is an opinion, the Consumer Forum/Commission may assess the record available and aid of opinion may be considered. This contention of the parties is also stand disposed off.


8.5.  Since the complainant was undergoing recovery after his laparoscopic surgery of hernia, which was already under package of Rs. 1,33,750/-, then another development took place, it was re-explored by second surgery for which OP1 had raised bill of Rs. 3,29,636/- and complainant had pay this bill amount. Now, question arises 'whether the OP1 is liable to refund this paid amount of Rs. 3,29,636/-, which was charged in respect of second surgery'?.

            The circumstances have already been discussed in detail and there was no case of medical negligence but as appearing the second episode happened because in its own course of events taking place in the body of complainant, however, it was attended by the OPs since complainant was already under the care and treatment of OPs. The second surgery was performed as a another course of treatment, the charges of Rs. 3,29,636/- were pertaining to that re-exploration and treatment, which were borne by the complainant. Neither it was part of package nor it was known that this development could happen, when the complainant was admitted for repair of hernia.  Thus, OP1 is not liable to refund such charges of Rs.3,29,636/- paid by complainant for the treatment.

8.6. By detailed discussion and analysis on the facts and features of the case, the law/precedent on medical negligence and the opinion rendered by the expert committee of medical Board, they do not determine that OPs have acted contrary to its duty of care in deciding to undertake the case, since the complainant was not only admitted in the hospital but it was uneventful laparoscopic repair of hernia followed by further timely intervention to the developments happened and its other follow up. There is also no evidence to conclude that OPs failed in its duty of care in deciding what treatment is to be given, since the exigencies required for pre-surgery/PAC, followed by subsequent post surgery procedures, tests and other follow up was done timely. There is also no evidence that there was lack of duty of care in administration of that treatment during that span of time inclusive of to meet the emergent situations.

            What appearing is that the complainant had developed those medical issues after his surgery but there was no lapse or negligence to be construed a consequence of  laproscopic repairs of hernia nor the complainant could establish that those other medical issues emerged were directly or consequent to any lapse in the first surgery performed. Even the source of bleeding could not be discovered despite it was attended, washed and drained. The complainant also could not suggest the source of bleeding or bleeder.  The medical negligence or circumstances of medical negligence could not have been proved by the complainant.

8.7. For want of establishing the case of negligence or medical negligence against OP1 and/or against OP2 or of extra charges of Rs. 3,29,636/- against OP1, the complaint fails. It is dismissed. No order as to costs.

9.  Announced on this 5th September, 2023 [भाद्र 14, साका 1945].

10. Copy of this Order be sent/provided forthwith to the parties free of cost as per rules for compliances.


[Vyas Muni Rai]                                 [Shahina]                                 [Inder Jeet Singh]

              Member                                Member (Female)                              President


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