Order by:

Sh.Amrinder Singh Sidhu,  President.

1.       The  complainant  has filed the instant complaint under section 12 of  the Consumer Protection Act, 1986 (as amended upto date) on the allegations that Opposite Party No.2 Dr.Rajeeva Gupta, M.S.M.Ch (Ortho)  and Opposite Party No.3  Dr.          Mrs.Vinesh Gupta M.B. B.S. M.D. (Obs & Gynae),  are running the Opposite Party No.1 known as Waris Test Tube baby & Infertility Centre, a unit of Rajeev Hospital at Moga. Further alleges that after marriage, one female child was born out of the wedlock of the complainant and at present she is studying in 8^th class and the complainant and her husband want another child, but the complainant could not conceive other child, so in the year 2015, the complainant and her husband approached the Opposite Parties for routine check up and medical examination that why the complainant could not conceive child. After check up and her medical examination, the Opposite Parties started treatment of the complainant and assured the complainant that after treatment, she will be  able to conceive the child. The Opposite Parties charged Rs.2 lakhs approximately i.e. expenses spent on various tests, medicines etc. Ultimately, till the month of January, 2017 the complainant could not conceive and they again approached the Opposite Parties hospital and asked about the said purpose. The Opposite Parties assured the complainant and her husband that child can only be conceived through Test tube baby and infertility and also demandeed the amount of Rs.3 lakhs for proper treatment, tests and medicines etc.  The complainant and her husband after consultation, believed upon the Opposite Parties and get started her medical treatment as per prescription and advice of Opposite Parties through EMBRYO TRANSFER. Out of the above  said amount of Rs.3 lakhs, the husband of the complainant paid Rs.1 lakh which was got deposited at the time of admission and then on 20.02.2017 the complainant was admitted  in the hospital of Opposite Parties and the Opposite Parties started treatment of the complainant. Various tests regarding infertility from the outside laboratories were got conducted by the Opposite Parties for which the complainant spent more than Rs.80,000/- on those tests. After obtaining the test reports, the Opposite Parties again assured that  the pregnancy will be developed and the complainant will be in a position to give birth to a child and lateron from time to time, the remaining amount of Rs.2 lakhs was got deposited from the complainant in cash and some amount was paid through cheques for medicines, injections and consultation fee etc.  On 22.02.2017, the EMBRYO was transferred by the Opposite Parties and the treatment remained continued. After waiting for period of 1 ½ months, it was found that the EMBRYO TRANSFER was not successful. The Opposite Parties again on 14.04.2017 assured the complainant that EMBRYO TRANSFER is to be conducted second time and received Rs.2 lakhs from the complainant. For this purpose, on 12.04.2017 the complainant was again  admitted in the hospital. On 14.04.2017 the Opposite Parties again transferred EMBRYO, all the tests were again gone conducted and the complainant had to pay Rs.80,000/- on tests reports and other expenses and again the EMBRYO TRANSFER of second time was also not successful and for this purpose, the complainant remained under treatment of the Opposite Parties for a long period of about 1 ½ years and the Opposite Parties always assured her that after some time, she will be able to give  birth to a child, but the complainant could not develop pregnancy or give birth to the child, again the Opposite Party told them that the treatment will be started again, but third time, the complainant and her husband did not belie upon the Opposite Parties; that as per the advice of the Opposite Parties, the complainant was called every day in the hospital for check up , but inspite of the long treatment, no pregnancy had ever been developed, rather due to wrong treatament, now the complainant is not in a position  to give birth  to a child  throughout her life which has caused great mental tension and agony to her.   As such, there is deficiency in service on the part of the Opposite Parties. Vide instant complaint, the complainant has sought the following reliefs.

a)       To direct the Opposite Parties to pay the damages to the tune of Rs.17,60,000/- which includes the amount received  by the Opposite Parties for EMBRYO TRANSFER (Developing of pregnancy and delivery of children, i.e. test tube baby and infertility) from the complainant and her husband for medical treatment, number of tests, scanning, E.C.Gs, medicines and Injections etc and Rs.10 lakhs as life time loss caused by the Opposite Parties or any  ther relief to  which this District Consumer Commission, may deem fit and proper.   Hence, the present complaint.

2.       On notice,  Opposite Parties No.1 to 3 appeared through counsel and contested the complaint  by filing the written version taking preliminary objections therein inter alia that the present complaint is baseless, frivolous and has been formulated on wrong and misleading facts and wrongful representation of the medical practices and application and is devoid of any merits whatsoever. Hence, the answering Opposite Parties denies each and every allegation made in the complaint under reply against the Opposite Parties unless admitted or commented therein. It appears that the present complaint has been filed to gain undue publicity and bring disrepute to a well known figure as a Doctor and hence, is liable to be dismissed qua Opposite Parties on   this ground alone that  present consumer complaint is not maintainable as medical opinion was NOT taken by this Hon’ble Forum by the competent doctor or committee of doctors specialized in the field before issuing the notice to the answering Opposite Party or for that matter Opposite Parties. It is submitted that Hon’ble Supreme Court of India  in the judgment titled Martin D’ Souza vs. Mohd. Ishaq  (Reported inter alia AIR 2009 SC 249) dated 17.02.2009 held that “Whenever a complaint is received against a doctor or hospital by the Consumer Fora, then it should first refer the matter to a competent doctor or committee of doctors, specialized in the field and only on their report a prima facie case of medical negligence can be made out and a notice can be issued to the concerned doctor/hospital.” 

It is submitted that present complaint is filed in 2018 i.e. after the supra judgment was delivered; therefore, the present complaint is liable to be thrown out on the said legal preposition; that the complaint under reply is liable to be dismissed qua Opposite Parties as Complainant has utterly failed to prove any negligence on the part of the Opposite Party. It is further submitted that there is no evidence documentary or otherwise which points out the medical error on the part of the Opposite Party is not provided the services to the said patient of the Complainant as per medical procedures. It is further submitted that mere on the basis of the bald averments in the body of the complaint no case is made out against the Opposite Party for any misdemeanor by the Opposite Party, and Complainant cannot seek any relief from this Hon’ble Forum under the scheme of the of Consumer Protection Act, 1986 against the answering Opposite Party; that the complaint under reply is liable to be dismissed as there is no commission of deficiency in service by the answering Opposite Parties since there is no fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which was required to be maintained by or under any law for the time being in force or had been undertaken to be performed by answering Opposite Parties in pursuance of a contract or otherwise in relation to any service. It is submitted that no case of medical negligence is made out against the Opposite Party  which warrants the allowing of the present complaint in the favour of the Complainant and against the Opposite Party. It is submitted that in re Bhajan Lal Gupta vs. Mool Chand Kharati Ram Hospital, 2001 (1) CPJ 31, wherein Hon’ble National Consumer Disputes Redressal Commission held that one of the tests of medical negligence is that some thing which is required under medical practice to be done was not done or what was done was contra indicated. That is, in the case of medical negligence, a Doctor can be held responsible if something has not been done which he was duty bound to do or some thing has been done which he was duty bound to omit. It is submitted that in the present case the Opposite Parties has adopted the line of treatment which was required to be adopted, therefore the question of any wrong treatment as alleged by the Complainant against the Opposite Party does not arise at all; that the complaint under reply is not maintainable either on facts or in the eyes of law and is liable to be dismissed qua Opposite Parties in as much as the Complainant has not come before this Hon'ble Forum with clean hands and has concealed vital and material facts from this Hon'ble Forum. The complainant has presented an incorrect and wrong version of the facts and medical parlance, practices and procedure before this Hon'ble Forum, thereby attempted to misguide & mislead this Hon'ble Forum. That in the matter of Sagli Ram vs. General Manager, United India Insurance Co. Ltd., reported at I (1994) CPJ 444 the Hon’ble Punjab State Consumer Disputes Redressal Commission has held that :-

“7.          The rule of our jurisprudence has long been that those seeking relief in equitable or extra-ordinary jurisdiction( other than ordinary and the formal one at law) must do so with the utmost candour and without any covert or overt suppression of facts or making of any misleading averments.  In the light of the above on principle and precedent, it has necessary to be held that a consumer knocking at the door of the Redressal agencies under the Act for relief in a consumer dispute must do so with clean hands.

That the complaint under reply is not maintainable as There can not  be  any  medical  negligence,  if  doctors Perform their duties and exercise ordinary degree of, professional skill and competence. and Mere deviation from normal professional practice is not necessarily evidence of negligence.[Kusum  Sharma and others  v.  Batra Hospital  and  Medical  Research  Centre and  others, I(2010)  CPJ  29  (SC)]. The treating doctor of Opposite Party i.e. Dr. Vinesh Gupta is a well known medical practitioner (Obs & Gynae) and is a renowned  Infertility Specialist  and has done various successful such procedures in her long span of career. It is further submitted that said Doctor is a respectable and a law-abiding citizen and has always treated her patients with utmost due care and followed all the medical ethics in true spirit and has rendered the true service to humanity. Patient Rajni Bala w/o Naval Kishore resident of village Kot Ise Khan came to Opposite Party Hospital on 19/01/2017 for treatment of secondary infertility of 8-9 years for IVF-ET treatment. She also took treatment (only with medicines) 2 years back but failed to conceive. That after informing the couple about the procedure and results of IVF-ET treatment which is 30-40% worldwide and with full consent of both the partners, treatment for test tube baby was started. That after preparing her fully for the procedure, Embryo transfer was done on 22.02.2017. 11 cases were done in this batch & 9 of them conceived, & out of these 9, 8 patients delivered healthy babies. Data of batch is attached herewith. So, the result was 80% which was much more than what was explained to the complainant but she unluckily failed to conceive. It is further submitted that repeat IVF cycle was done in April 2017 and Embryo transfer was done on 14/04/17. 12 cases were done in this batch of April 2017, out of which 8 patients conceived. So the result was 66.66%, which is again more than what was explained to  patient before starting the procedure and charges taken were also explained to patient before starting the procedure which were Rs.80,000 for 1^st cycle & Rs.60,000/- for repeat cycle & these charges included everything in the package i.e. [Medicines for ovarian stimulation, all the blood tests & Semen tests including Ultrasound                 [6-7 times/cycle] file charges, down regulation of patient, Embryology charges, Egg pick up and Embryo transfer, Donor eggs and stay in            the Hospital for the above procedure. That it is further submitted that every procedure is potentially a risk and every patient is well informed in advance the consequences and the success of the said procedure. No procedure is 100% result. This fact is known to every educated person. Anatomy of body is not fixed there could be abnormal vessels malformed organs and failure of drugs and other things.  However, Patient is prime concern for us and hundreds of patients are witness to this. That in recent order / judgment Hon’ble state Consumer Disputes Redressal Commission Punjab at Chandigarh (FA/917 OF 2012) finds that  “When in these type of cases, the success rate is just 25 to 40 % then it is not possible that IVF system will be 100% correct. What was best available with the Opposite Parties that was done and in case of failure the Ops cannot be held responsible.”   

• That as per the recent research, Study and Medical literature says :-
• Age and IVF: In Vitro Fertilization Stats

SART's most recent data reports the live birth rate at:

• 40 43% for women under 35
• 33-36% for women 35-37
• 13-18% for women 40-44
• Unlikely for women over 44

CDC IVF Success Rates by Age

All numbers below are results from using fresh embryos from non donor eggs during the cycle.

CDC's most recent data answering the question, "What is the chance of having a term, normal birth weight and singleton live birth per IVF cycle?"

• 3% for women under 35
• 17% for women 35-37

CDC’s most recent data answering the question,”What is the chance of getting pregnant per ART cycle?”

• 3% for women under 35
• 32% for women 35-37
• 1% for women 38-40
• 4% for women over 40

CDC’s most recent data answering the question,” What is the chance of having a live birth per embryo transfer?”

• 5% for women under 35
• 4% for women 35-37
• 4% for women 38-40
• 5% for women over 40

• Pregnancy Rates by Age
• 7% for women 35-37
• 36% for women 38-40
• 8% for women over 40

The pregnancy rate is traditionally higher than the live birth rate since a percentage of pregnancies end in miscarriage or stillbirth.

success rates for IVF depend on a number of factors, including the reason for infertility, where you're having the procedure done, and your age. The CDC compiles national statistics for all assisted reproductive technology (ART) procedures performed in the U.S., including IVF, GIFT, and ZIFT, although IVF is by far the most common; it accounts for 99% of the procedures. The most recent report from 2009 found:

• Pregnancy was achieved in an average of 29.4% of all cycles (higher or lower depending on the age of the woman).
• The percentage of cycles that resulted in live births was 22.4% on average (higher or lower depending on the age of the woman).

Are There Other Issues With IVF to Consider?

A woman's age is a major factor in the success of IVF for any couple. For instance, a woman who is under age 35 and undergoes IVF has a 39.6% chance of having a

baby, while a woman over age 40 has an 11.5% chance.

On merits, Opposite Parties No.1 to 3 took up almost the same and similar pleas as taken up by them in the preliminary objections and it is,  therefore, prayed that the present complaint is not maintainable and the same deserves dismissal.  

3.       Opposite Party No.4 appeared separately through counsel and contested the complaint  by filing the written version taking preliminary objections therein inter alia that the complaint is not maintainable; that  the complainant has got no locus standi to file the present complaint; that no deficiency in service has been attributed to the Opposite Party No.4 and from the allegations in the complaint no deficiency in service is made out.  Moreover, as per the terms and conditions of the policy, the Opposite Parties No.1 and 2 have should have informed the Opposite Party No.4. Moreover, the Opposite Party No.4 is liable to indemnify the Opposite Parties No.1 and 2  if they have acted  with utmost care and  devotion to the medical profession and has treated the patient as per rules of the medical practice, so the complainant against answering Opposite Party is not maintainable and the same deserves dismissal. On merits, Opposite Party No.4 took up almost the same and similar plea as taken up by them in the preliminary objections   and hence, the complainant is liable to be dismissed.               

4.       In order to prove her case, the complainant has tendered into evidence her affidavit Ex.C1/A alongwith copies of documents Ex.C1 to Ex.C19 and closed his evidence.

5.       On the other hand, to rebut the evidence of the complainant, Opposite Parties No.1 to 3 also tendered  into evidence affidavit of  Dr.Vinesh Gupta Ex.OP 1,2,3/1 and copies of documents Ex.OP1,2,3/2 to Ex.OP1,2,3/37. Similarly, Opposite Party No.4 tendered into evidence the affidavit of  Sh.jaswant Singh Dhaap Ex.OP4/3 alongwith copies of documents Ex.OP4/1  and Ex.OP4/2 and thereafter closed their respective evidence. 

6.       We have heard the ld.counsel for the parties, perused the written submissions of the complainant  and also gone through the documents placed on record.

7.       Ld.counsel for the Complainant has mainly reiterated the facts as narrated in the complaint and contended that the Opposite Party No.2 Dr.Rajeeva Gupta, M.S.M.Ch (Ortho)  and Opposite Party No.3  Dr.     Mrs.Vinesh Gupta M.B. B.S. M.D. (Obs & Gynae),  are running the Opposite Party No.1 known as Waris Test Tube baby & Infertility Centre, a unit of Rajeev Hospital at Moga. Further alleges that after marriage, one female child was born out of the wedlock of the complainant and at present she is studying in 8^th class and the complainant and her husband want another child, but the complainant could not conceive other child, so in the year 2015, the complainant and her husband approached the Opposite Parties for routine check up and medical examination that why the complainant could not conceive child. After check up and her medical examination, the Opposite Parties started treatment of the complainant and assured the complainant that after treatment, she will be  able to conceive the child. The Opposite Parties charged Rs.2 lakhs approximately i.e. expenses spent on various tests, medicines etc. Ultimately, till the month of January, 2017 the complainant could not conceive and they again approached the Opposite Parties hospital and asked about the said purpose. The Opposite Parties assured the complainant and her husband that child can only be conceived through Test tube baby and infertility and also demanded the amount of Rs.3 lakhs for proper treatment, tests and medicines etc.  The complainant and her husband after consultation, believed upon the Opposite Parties and get started her medical treatment as per prescription and advice of Opposite Parties through EMBRYO TRANSFER. Out of the above  said amount of Rs.3 lakhs, the husband of the complainant paid Rs.1 lakh which was got deposited at the time of admission and then on 20.02.2017 the complainant was admitted  in the hospital of Opposite Parties and the Opposite Parties started treatment of the complainant. Various tests regarding infertility from the outside laboratories were got conducted by the Opposite Parties for which the complainant spent more than Rs.80,000/- on those tests. After obtaining the test reports, the Opposite Parties again assured that  the pregnancy will be developed and the complainant will be in a position to give birth to a child and lateron from time to time, the remaining amount of Rs.2 lakhs was got deposited from the complainant in cash and some amount was paid through cheques for medicines, injections and consultation fee etc.  On 22.02.2017, the EMBRYO was transferred by the Opposite Parties and the treatment remained continued. After waiting for period of 1 ½ months, it was found that the EMBRYO TRANSFER was not successful. The Opposite Parties again on 14.04.2017 assured the complainant that EMBRYO TRANSFER is to be conducted second time and received Rs.2 lakhs from the complainant. For this purpose, on 12.04.2017 the complainant was again  admitted in the hospital. On 14.04.2017 the Opposite Parties again transferred EMBRYO, all the tests were again gone conducted and the complainant had to pay Rs.80,000/- on tests reports and other expenses and again the EMBRYO TRANSFER of second time was also not successful and for this purpose, the complainant remained under treatment of the Opposite Parties for a long period of about 1 ½ years and the Opposite Parties always assured her that after some time, she will be able to give  birth to a child, but the complainant could not develop pregnancy or give birth to the child, again the Opposite Party told them that the treatment will be started again, but third time, the complainant and her husband did not belie upon the Opposite Parties; that as per the advice of the Opposite Parties, the complainant was called every day in the hospital for check up , but inspite of the long treatment, no pregnancy had ever been developed, rather due to wrong treatment, now the complainant is not in a position  to give birth  to a child  throughout her life which has caused great mental tension and agony to her and  there is deficiency in service on the part of the Opposite Parties.

8.       On the other hand, ld.counsel for Opposite Parties No.1 to 3 has repelled the aforesaid contention of the ld.counsel for the complainant and submitted that the written reply filed by Opposite Parties No.1 to 3 be treated as part and parcel of  written submissions of the answering Opposite Parties and prays that there is no deficiency in service on the part of  the Opposite Parties.

9.       It is not disputed that the complainant remained under the treatment of Opposite Parties No.1 to 3 so that she could conceive the child allegedly on the assurance of the Opposite Parties No.1 to 3 that after some treatment, the complainant could conceive and for this, Opposite Parties No.1 to 3 tried its best, but the complainant could not conceive and due to this, the complainant contended that due to the negligence and deficiency in service and due to wrong treatment, now the complainant is not in a position  to give birth  to a child  throughout her life which has caused great mental tension and agony to her. On the other hand, Opposite Parties No.1 to 3 has specifically denied the aforesaid averments of the complainant on the ground that the tried their best so that the complainant could conceive, but  to no avail. In this regard, the Opposite Parties No.1 to 3 has relied upon the judgement of  Hon’ble National Commission, in    FIRST APPEAL NO. 368 OF 2011 titled as Senior Consultant Obs. Gynae, Sir Ganga Ram Hospital, Rajinder Nagar, New Delhi Vs. Ispita Seal, decided on 12.12.2017 in which it has been categorically held in para No. 10  to 12 to the following effect:-

“0.   According to literature, the success rate of IVF internationally is 13.4% in women less than 35 years and 3.6% in women above 35 years. A woman’s age is the most important factor that influences the success rate of IVF procedures. The IVF success rate is highest for women between 24 and 34 as this is the period when they are at their peak fertility levels.  Table showing success rates according to age.

 Thus, the medical board observed that  the OP has duly followed ICMR guidelines while treating the patient  and the failure of IVF ET is known as per international standards.  The IVF procedure is highly technical and the success rate is low in the cases of females above 35 years.

11. The complainant’s allegation that OP was negligent in duty of care.  The concept of duty of care has been discussed by the  Hon’ble Supreme Court in the Laxman Balkrishna Joshi’s case [1969 SCR  (1) 206]. Court observed that,

A person who holds himself out ready to give medical  advice and treatment impliedly holds forth that he is possessed  of skill  and  knowledge for the Purpose. Such a   person when consulted by a patient, owes 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 the administration of that treatment.  A breach of any of these duties gives a right of action of negligence  against him.  The medical practitioner has a discretion in choosing the  treatment which he proposes to give to the patient and such discretion is wider in cases of emergency, but, he must bring to his task a reasonable degree of skill and knowledge and  must exercise a reasonable degree of care according  to -the circumstances of each case.

In the instant case the treating doctor adopted the standard method of IVF. The patient was properly investigated and given proper medicines for retrieval of eggs(ova) prior to IVF. Also SST was performed for her husband.   In any given cycle, the chance of IVF success varies, depending on your age and your personal health circumstances. We do not find any deficiency or lapses in the duty of care on the part of OP.

12.     It is known that “No cure/ no success is not  a negligence” , thus fastening the liability upon the treating doctor is unjustified. The State Commission has erred in holding  the OP liable without any cogent evidence or medical ground. Therefore, on the basis of foregoing discussion,  the order of State Commission is set aside and the instant appeal is allowed. Consequently, the complaint is dismissed.”

10.     Now the question arises as to whether Opposite Parties No.1 to 3 have been negligent in the instant case or not?. In this regard, we shall have to see what is meant by negligence or medical negligence. Reference in this context can be made to the observations made in Jacob Matahew Vs. State of Punjab & Anr (2005) 6 SCC 1, decided on 05.08.2005 by Hon’ble Supreme Court of India as follows:-  

(2) 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.

11.     The question  of medical negligence also came up for hearing before  the Hon’ble Apex Court in Kusam Sjharma & Others. Vs. Batra Hospital & Medical Research Centre 2010 AIR (SC) 1050 wherein following principles were laid down as under:-

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 standards      of   a  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 available, 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 unnecessary 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. Such 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 professionals.

In V.Krishan Rao appellant (s) Vs. Nikhil Super Specialty Hospital &  Another Respondents(s), Civil Appeal No. 2641 of 2010 decided on 08.03.2010 by Hon’ble Apex Court it has been laid down to the following effect:-

"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"...(See page 122 placitum `B' of the report)

18. It is also held that in the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and a doctor is not negligent merely because his conclusion differs from that of other professional men. It was also made clear that the true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with  ordinary care (See page 122, placitum `A' of the report).”

12.     Applying the principles of the judgements ‘supra’ to the facts of the present case, it becomes amply clear that the doctors have treated the couple in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art and as such Opposite Parties No.1 to 3 can not be guilty of the negligence. Not only that, no ingredient of negligence have either been pleaded nor any evidence was brought to prove any negligence allegedly made by Opposite Parties No.1 to 3 during the course of treatment. The complainant wants this District Consumer Commission to jump to the conclusion that Opposite Parties No.1 to 3 were guilty of the negligence simply because of the fact that desired result could not be achieved despite getting medical treatment as prescribed by Opposite Parties No.1 to 3. We have every reason to differ with the contention of the complainant in view of the latest law laid down in V.Krishna Rao authority ‘supra’ and other relevant laws laid down in remaining authorities referred above. We are of the considered with that the complainant has miserably failed to prove any negligence on the part of the Opposite Parties No.1 to 3 nor there is any evidence regarding deficiency in service on the part of Opposite Parties No.1 to 3. There is absolutely no force in the complaint and the same requires to be dismissed.

13.     Hence, keeping in view the facts and circumstances of the case as well as supra judgements of  Hon’ble Supreme Court of India, we finds no merit in the complaint and the same stands dismissed. Keeping in view the peculiar circumstances of the case, the parties are left to bear their own costs. Copies of the order be furnished to the parties free of cost. File be consigned to record room after compliance.

14.     Reason for delay in deciding the complaint.

This complaint could not be decided within the prescribed period because the government has not  appointed any of the Whole Time Members in this Commission for about 3 years i.e. w.e.f. 15.09.2018 till 27.08.2021 as well as due to pandemic of COVID-19.

Announced in Open Commission.

Dated: 29.11.2021.