Arvind Shah (Dr.) vs Kamlaben Ramsingh Kushwaha

THIS appeal challenges the order dated 8.7.2004 of the Gujarat State Consumer Disputes Redressal Commission (in short, the State Commission'') in Complaint Case No. 3/1998. By this order, the State Commission partly allowed the complaint and directed the opposite party to pay to the complainant, within six weeks from the date of the order, a compensation of Rs. 5 lakh with interest @ 9% per annum from the date of the complaint till payment and costs of Rs. 5,000. Hereafter, we refer to the appellant, original opposite party, as the OP'' and the complainant as such.

THE complainant''s case before the State Commission was that her son Prakash Ramsingh Kushwaha, aged about 20 years and otherwise healthy, died on 6.9.1997 because of the wrong treatment administered to him by the OP during 4 -6 September, 1997. Alleging medical negligence (deficiency in service under the Consumer Protection Act, 1986, hereafter referred to as the Act'') on the part of the OP, the complainant prayed for award of compensation of Rs. 11.05 lakh and costs of the proceedings. After considering the facts of the case, documents brought on record and evidence of the parties and witnesses, the State Commission passed the above mentioned order.

WE have heard Mr. Maninder Singh and Mr. Yoginder Handoo, learned Counsel for the OP and Mrs. Arunaben Shah, learned Counsel for the complainant and carefully considered the documents and evidence placed before us. (i) The OP has challenged the State Commission''s order mainly on the following grounds: (a) He treated Prakash on 4.9.1997 and prescribed some medicines but not thereafter.

(b) On 4.9.1997, he did not diagnose Prakash with malaria because pathological tests were necessary to establish malaria and no such test report was available on 4.9.1997. Prakash admittedly visited and underwent treatment at other hospitals, including one Sharadaben Hospital'' in the period after 4.9.1997 until his death. There was no evidence to suggest that the OP treated Prakash on 6.9.1997 and the State Commission did not come to any specific finding on this issue.

(c) The medicines prescribed by him on 4.9.1997 did not have any nexus with the actual cause of death, viz., pulmonary oedema'', as established by the post -mortem report (PMR).

(d) The OP treated Prakash only on 4.9.1997 and thereafter Prakash went to and received treatment at other hospitals, including Sharadaben Hospital. Therefore, the State Commission seriously erred in holding the OP responsible for the death of Prakash.

(ii) In addition, the appeal has referred to some alleged inconsistencies in the statements of the complainant as well as one of the witnesses produced by her before the State Commission.

I ) In the course of arguments, learned Counsel for the appellant (OP) summarised the grounds of the appeal (mentioned above) and the denials of the prescriptions and cash memos of medicines by the OP in his written statement before the State Commission. However, his emphasis was on the findings in the PMR, particularly item No. 17 of the PMR, viz., "Any external injuries on the body part" and its corresponding finding, "No external marks of injuries". In this context, he referred to the complainant''s allegations that after the OP put him on intravenous (IV) feed of saline solution and administered some injections through the IV line, Prakash developed symptoms of acute distress and breathlessness, leading ultimately to his death. Learned Counsel emphasised that the cannula of an IV feed, if actually administered, would have left a mark on the body of the deceased, which the PMR would have noticed. He also drew attention to the fact that according to the complainant herself, Prakash was well enough to work for the whole of 6.9.1997. (ii) Learned Counsel thus argued that the complainant had been unable to establish either the allegation of the OP administering any treatment to Prakash on the date of his death, i.e., 6.9.1997 or the nexus between Prakash''s death and his treatment by the OP on 4.9.1997. According to him, the complainant''s failure to produce any record of Prakash''s treatment at the Sharadaben Hospital should also be held adversely against her. Learned Counsel went on to suggest that Prakash''s treatment at that hospital might have led to his death. Accordingly, the impugned order was, both on facts and in law, unsustainable.

I ) On the other hand, Mrs. Shah, learned Counsel for the complainant, emphasised that in his written version before the State Commission, the OP began with flatly denying that he had at all treated Prakash on 4.9.1997 or any time thereafter. However, in the memorandum of appeal, the OP changed his stand and now admitted that he did indeed treat Prakash on 4.9.1997. This shift in the OP''s stand was, according to Mrs. Shah, enough to show his questionable motive and conduct. (ii) Secondly, she referred to the OP''s statement in paragraphs 2, 4 and of his cross -examination dated 12.11.2003 before the State Commission. These (English translation produced by Mrs. Shah on record before us, not disputed by the OP) are as under: "2. My hospital has been running for 33 years. That the complainant lived close to it is a true statement. Whenever someone in the house fell ill, he would generally come to my hospital. The complainant has had no quarrels with me."

"4. It is true that when the son of complainant became ill, first of all he came to me and, subsequently, he went to Sharadaben Hospital and, thereafter, he came to me, which is the true fact and I can say this by perusing my papers. "5. I am being shown the cash memo of Rakesh Medical and General Stores which is at Sr. No. 5 of list Exh 15. The date is correct in it, but the month 9 is written and year 1997 is written. In it, the name of the doctor is written which is my name. At that time, the patient Prakash would have been prescribed the medicines Ampicillin and Geramycin. The witness voluntarily deposed that there was no side effect of the said medicines and they were completely safe."

(iii) From these statements, Mrs. Shah pointed out that during his cross -examination, the OP admitted for the first time that the family of the complainant lived close to his polyclinic and that whenever someone in the family fell ill, he would generally go the OP for treatment. The OP also effectively admitted that at the relevant time Prakash first went to the OP and thereafter Sharadaben Hospital and afterwards again to him. However, he would be able to confirm this (sequence of Prakash''s treatment at the relevant time) after looking at his papers. This corresponded exactly with the complainant''s averment that on 4.9.1997, Prakash went to and received treatment from the OP twice, first in the morning and later in the evening. Referring to the cash memo of Rakesh Medical and General Stores, which showed his name as the prescribing doctor, the OP then voluntarily deposed that Ampicillin and Geramycin had no side effects and were completely safe - why would he do so if he had not prescribed these injections for Prakash and actually administered them to him. These statements of the OP taken together clearly reinforced the complainant''s further averment that the OP treated Prakash on 4.9.1997 as well as on 6.9.1997. There was no prescription or bill for purchase of medicines on 4.9.1997 because the OP administered the medicines and injection to Prakash at his polyclinic. The cash memo of Rakesh Medical and General Stores was thus in respect of the treatment/prescription of Prakash by the OP on 6.9.1997.

(iv) On the PMR not making any observation regarding physical injury on Prakash''s body, Mrs. Shah suggested that the doctor who conducted the PM examination did not consider the cannula mark a physical injury''. This was because the examination was conducted at 10 a.m. the following day, i.e., well after 12 hours of Prakash''s death and there was no allegation in the forwarding Police report which could alert the said doctor to look out for an IV injection mark as an injury.

I ) We notice that two prescriptions are on record -the complainant first enclosed photocopies of these prescriptions with her complaint at Sr. Nos. 4 and 6 of the list of documents and later submitted the originals during the complaint proceedings. Each prescription looks like an oblong seal and has, at the bottom right hand corner, a stamp in Gujarati alphabet with the word "Polyclinic" and the name "Dr. Arvind C. Shah" just below "Polyclinic". The prescription of "6.9.1997" bears the name "Prakash" in Gujarati alphabet whereas the entries of the injections are in English. The other one, however, does not have either the name of the patient or a date. The signatures below the injections prescribed appear to be different to the extent that the signature on the prescription dated 6.9.1997 looks like a full signature while that on the other like scrawled initials, as if done in hurry. (ii) The prescription dated 6.9.1997, clearly mentioning the name "Prakash" in Gujarati, has the following entries in English: "1. Inj. Ampiclox 500 1 2. Inj. Gentamycin 240 1 3. Inj. Rantac 1 4. Inj. RL 1000 ml 1 5. Inj. DNS 1"

The prescription also notes a serial no. 6 but there appears to be no clear writing thereagainst. (iii) The second, undated, prescription has the following entries in English: "1. Inj. R.L. 1000 ml 1 2. Inj. Kemycitin 1 gm 1 3. Inj. Betnesol 1" (iv) It is clear to the naked eye that in both the prescriptions, the entries in English of the injections, etc., are in the same, very legible, handwriting. Secondly, out of the five entries in the prescription of 6.9.1997, only the first two injections are tick marked. (v) In this context, the OP deposed before the State Commission as under: "6. I am being shown the paper of Sr. No. 6 of the said list. The writing and the signature of the said paper are not mine, but it seems that the stamp of my hospital is affixed. The medicines prescribed on it are generally for vomiting and diarrhoea. The third medicine prescribed therein is life saving medicine Betnesol which is available by way of injection."

(vi) It is obvious that the OP''s denial in his cross -examination refers to the prescription without the name of the patient and the date, a photocopy of which was the document listed at Sr. No. 6 in the list of documents that the complainant filed with her complaint. This is also borne out by the fact that this prescription alone has the entry of "Inj. Betnesol", not the other bearing the name "Prakash" and the date "6.9.1997" and that the statement of the OP specifically mentioned this injection. Secondly, in his cross -examination the OP did not specifically deny the prescription dated "6.9.1997" though he made several voluntary statements, including that the two injections, Amplicox and Gentamycin, were safe and had no side effects.

(vii) In our view, the OP''s denial of these two prescriptions has no meaning. Both clearly bear the stamp of the OP''s Polyclinic with his name. In his written version before the State Commission, the OP went to the extent of claiming that the seal of his polyclinic on the prescription dated "6.9.1997" was fraudulent. If that were so, it would mean that the complainant and/or her deceased son Prakash fabricated the blank form of this prescription and convincingly forged the rubber stamp in the course of just two days (4 -5.9.1997). It would also imply a prior conspiracy on the part of the complainant - a barely literate woman, and Prakash -a fruit vendor (and perhaps some others) to implicate the OP in a fraudulent case of medical negligence. It would further mean that the complainant and Prakash had some inkling that Prakash might suffer grievous consequences (and even die) because of the OP''s treatment that they knew a priori was likely to be wrong. Still they went ahead with the conspiracy, forgery and associated risks to Prakash''s life only to make out what they thought would be a strong case for a large compensation for such medical negligence! If, on the other hand, the conspiracy was hatched after Prakash''s death, it would mean that the complainant did so within a couple of months of the death of her only breadwinning son (for the complaint was filed on 16.12.1997). She and/or her accomplice had enough resources to forge documents like two prescriptions with the OP''s rubber stamps. They also suborned the owners of two separate medical stores and persuaded another doctor to collaborate and advise them on the specific injections to write on the two forged prescriptions (of all the injections, etc., that could have been prescribed)! If the OP really believed that this was so, nothing prevented him from lodging a Police complaint of fraud, forgery and criminal conspiracy against the complainant soon after he received notice of the complaint. Thus, nothing can be more absurd than such scenarios as the OP seeks to imply.

(viii) Therefore, taking into account the totality of the facts and circumstances, we are of the view that the prescription dated "6.9.1997" on record is a valid and genuine proof of the OP actually treating Prakash on 6.9.1997. We are also of the view that the undated prescription could have been of only 6.9.1997 and that too of a point of time after that of the prescription dated 6.9.1997. For, as per the OP''s own admission, "Inj. Betnesol", mentioned in this undated prescription, is a "life saving drug". Undisputedly, Prakash was brought dead to Sharadaben Hospital at about 9.55 p.m. on 6.9.1997. Therefore, the need to administer a "life saving" injection like Betnesol to Prakash could have arisen only when he developed fatal complications during late evening of 6.9.1997, i.e., shortly before his expiry prior to 9.55 p.m. of that date.

I ) In his written version, the OP questioned the reliability of the cash memo -cum -bills of both Rakesh Medical and General Store and Jalaram Medical Stores. According to him, the name of Prakash seemed to have been written on the cash memo afterwards and the latter cash memo did not have his name as the prescribing doctor. He demanded that the original bill book of the medical stores be looked at. (ii) During the complaint proceedings, the complainant produced the original cash memos of the two medical stores in question. The cash memo -cum -bill of Rakesh Medical and General Store mentions the purchase of only the first two injections (Amplicox and Gentamycin) written in the prescription of "6.9.1997" - these two injections are also tick marked in the said prescription, as a Chemist''s store would normally do in case of part purchase/supply out of a group of medicines prescribed. From the entries in the original cash memo we find no reason to suspect that the name of Prakash as "Prakashbhai" was added after the other entries had been made in this cash memo.

(iii) The son of the proprietor of Jalaram Medical Store (one Shailesh J. Thakkar) filed an affidavit before the State Commission in respect of the cash memo -cum -bill of that medical store, produced on record (both photocopy and original) by the complainant. Shailesh underwent cross -examination at some length on this affidavit. In his affidavit, he averred that his medical store was located close to the polyclinic of Dr. Shah and the latter''s patients came to his store to buy the medicines prescribed by him. During cross -examination, he explained the later date on this cash memo -cum -bill stating that the injections were sold to someone on behalf of the deceased Prakash on "6.9.1997" but the date on the cash memo -cum -bill was put as "9.9.1997". This was so because the payment was received on the later date. He added that the injections were dispensed without payment on 6.9.1997 because they knew the family of the complainant for over 10 years. Given these unshaken statements of Shailesh Thakkar, it is difficult to accept that he, the son of the proprietor of a medical store, would go the extent of cooking up a false story in respect of sale of certain injections to someone on behalf a mere fruit vendor. This was particularly unlikely against a doctor of over 30 years of medical practice like the OP who had his polyclinic in the same locality as the medical store and from whom the said medical store obviously received considerable business by way of sale of medicines prescribed by the OP.

I ) The OP possesses the degree of MBBS and claims to have been practising modern (allopathic) medicine for over 33 years, without any blemish. He also claims to enjoy "tremendous reputation". (ii) Though he belatedly (only at the stage of this appeal) admitted to having treated Prakash on 4.9.1997, there is no prescription on record. Secondly, the OP did not write in either available prescription any of Prakash''s complaints/symptoms, his clinical observations after examining Prakash or his diagnosis of the ailment. Even ordinary vital parameters like temperature, blood pressure, pulse rate, etc., were not noted in either prescription on record.

(iii) It is not clear if the OP had himself registered with the Medical Council of India or the State (Gujarat) Medical Council. We assume he had at least registered with the latter; otherwise, he would not be at all authorised to practise modern medicine. In either case, the code of ethics/guidelines/regulations of the relevant Council would require him to make, even for an out -patient, some minimal record. Such a record would ordinarily include a summary the history of illness and current complaints/symptoms of the patient and clinical observations of the doctor. However, if the doctor considered none of the foregoing essential, he would need to record at least a provisional diagnosis of the patient''s ailment before advising further diagnostic test(s) or treatment (medicines/injections) in the document called prescription. This, in our view, would be one of the primary duties of disclosure owed by a physician of ordinary skills to his patient.

(iv) In the case of Samira Kohli v. Dr. Prabha Manchanda, I (2008) CPJ 56 (SC)=II (2008) SLT 25=(2008) 2 SCC 1, the Apex Court dealt at length with the question of "valid consent" and, in that context, a doctor''s "duty of disclosure" to his patient, against ttie backdrop of the rulings in the English case of Bolam v. Friern Hospital Management Committee, (1957) 1 All.ER 118, the US case of Canterbury v. Spence, 150 (1972) US App DC 263, as well as a host of cases decided by the Apex Court itself. In doing so, the Court also took conscious cognisance of the ground realities of medical care standards, availability of necessary infrastructure and the people''s ability to afford the associated costs in India and the developed countries of the world. The Court observed, inter alia -

"38. In India, majority of citizens requiring medical care and treatment fall below the poverty line. Most of them are illiterate or semi -literate. They cannot comprehend medical terms, concepts, and treatment procedures. They cannot understand the functions of various organs or the effect of removal of such organs. They do not have access to effective but costly diagnostic procedures. Poor patients lying in the corridors of hospitals after admission for want of beds or patients waiting for days on the roadside for an admission or a mere examination, is a common sight. For them, any treatment with reference to rough and ready diagnosis based on their outward symptoms and doctor''s experience or intuition is acceptable and welcome so long as it is free or cheap; and whatever the doctor decides as being in their interest, is usually unquestioningly accepted. They are a passive, ignorant and uninvolved in treatment procedures."

"39. The poor and needy face a hostile medical environment -inadequacy in the number of hospitals and beds, non -availability of adequate treatment facilities, utter lack of qualitative treatment, corruption, callousness and apathy. Many poor patients with serious ailments (e.g. heart patients and cancer patients) have to wait for months for their turn even for diagnosis, and due to limited treatment facilities, many die even before their turn comes for treatment. What choice do these poor patients have? Any treatment of whatever degree is a boon or a favour for them. The stark reality is that for a vast majority in the country, the concepts of informed consent or any form of consent, and choice in treatment, have no meaning or relevance."

"46. What we are considering in this case is not the duties or obligations of doctors in government charitable hospitals where treatment is free or on actual cost basis. We are concerned with doctors in private practice and hospitals and nursing homes run commercially, where the relationship of doctors and patients are contractual in origin, the service is in consideration of a fee paid by the patient, where the contract implies that the professional men possessing a minimum degree of competence would exercise reasonable care in the discharge of their duties while giving advice or treatment."

"47. There is a need to keep the cost of treatment within affordable limits. Bringing in the American concepts and standards of treatment procedures and disclosure of risks, consequences and choices will inevitably bring in higher cost structure of American medical care. Patients in India cannot afford them. People in India still have great regard and respect for doctors. The members of medical profession have also, by and large, shown care and concern for the patients. There is an atmosphere of trust and implicit faith in the advice given by the doctor. The Indian psyche rarely questions or challenges the medical advice."

"48. Having regard to the conditions obtaining in India, as also the settled and recognised practices of medical fraternity in India, we are of the view that to nurture the doctor -patient relationship on the basis of trust, the extent and nature of information required to be given by doctors should continue to be governed by the Bolam test rather than the reasonably prudential patient'' test evolved in Canterbury. It is for the doctor to decide, with reference to the condition of the patient, nature of illness, and the prevailing established practices, how much information regarding risks and consequences should be given to the patients, and how they should be couched, having the best interests of the patient. A doctor cannot be held negligent either in regard to diagnosis or treatment or in disclosing the risks involved in a particular surgical procedure or treatment, if the doctor has acted with normal care, in accordance with a recognised practice accepted as proper by a responsible body of medical men skilled in that particular field, even though there may be a body of opinion that takes a contrary view. Where there are more than one recognised school of established medical practice, it is not negligence for a doctor to follow any one of those practices, in preference to the others."

"49. We may now summarise principles relating to consent as follows: (i) A doctor has to seek and secure the consent of the patient before commencing a treatment'' (the term treatment'' includes surgery also). The consent so obtained should be real and valid, which means that: the patient should have the capacity and competence to consent; his consent should be voluntary; and his consent should be on the basis of adequate information concerning the nature of the treatment procedure, so that he knows what he is consenting to.

(ii) The adequate information'' to be furnished by the doctor (or a member of his team) who treats the patient, should enable the patient to make a balanced judgment as to whether he should submit himself to the particular treatment or not. This means that the doctor should disclose (a) nature and procedure of the treatment and its purpose, benefits and effect; (b) alternatives if any available; (c) an outline of the substantial risks: and (d) adverse consequences of refusing treatment. But there is no need to explain remote or theoretical risks involved, which may frighten or confuse a patient and result in refusal of consent for the necessary treatment. Similarly, there is no need to explain the remote or theoretical risks of refusal to take treatment, which may persuade a patient to undergo a fanciful or unnecessary treatment. A balance should be achieved between the need for disclosing necessary and adequate information and at the same time avoid the possibility of the patient being deterred from agreeing to a necessary treatment or offering to undergo an unnecessary treatment."

[Emphasis supplied] (v) In this case, availability of the patient''s consent per se or the scope thereof in respect of the line of treatment is not strictly at issue. However, the fact is that the OP did not even write a prescription for the treatment that he administered to the deceased on 4.9.1997 and the two available prescriptions of treatment on 6.9.1997 do not disclose even the provisional diagnosis of the patient''s ailment for which the OP treated the former. Thus, the first aspect of negligence that emerges in the case is, what, if at all, did the OP tell/disclose to the deceased about his ailment before he treated him on 4.9.1997 or 6.9.1997. Moreover, if he did not disclose anything (as would be evident from the absence of even a mere mention of the diagnosis), could it be said that the OP treated the deceased with due care expected of a medical practitioner of ordinary competence. Mark this against what the Apex Court directs {supra), A doctor has to seek and secure the consent of the patient before commencing a treatment'' (the term treatment'' includes surgery also). ... The consent so obtained should be real and valid, which means that: the patient should have the capacity and competence to consent; his consent should be voluntary; and his consent should be on the basis of adequate information concerning the nature of the treatment procedure, so that he knows what he is consenting to. ... This means that the doctor should disclose (a) nature and procedure of the treatment and its purpose, benefits and effect; (b) alternatives if any available; (c) an outline of the substantial risks; and (d) adverse consequences of refusing treatment. In our view, the process of a doctor seeking and securing a patient''s real consent for a line of treatment must begin with a diagnosis of the latter''s ailment -explicitly recorded in the prescription or treatment chart. In the absence altogether of a prescription (as in this case of the deceased''s treatment on 4.9.1997) or a diagnosis of the ailment in the recorded prescription (as in the case of his treatment on 6.9.1997), it has to be held as a case of lack of due care, on the part of the treating doctor, according to the accepted standards enunciated in the Bolam case.

(vi) There is another important dimension to our conclusion mentioned above, which is in line with the Apex Court''s view that given the socio -economic conditions in India, it is necessary to nurture the doctor -patient relationship on the basis of trust, perhaps more so on the part of the rather hapless patient. If such a trusting patient found that the doctor''s treatment did not help ease his felt problem and wanted to consult another, there would be no basis for his further consultation if the first doctor did not write a proper prescription or did not write in the prescription(s) his clinical observations and diagnosis? If, on the other hand, a fully trustworthy doctor were to claim that he treated his patient with due care but the patient (perhaps falsely/fraudulently) insisted otherwise, how would such a doctor substantiate his stand? And in either case, even if the matter were referred to, for independent assessment, a body of reasonably competent medical professionals (and not adjudication by lay persons like the members of a Consumer Forum), what would that professional body begin to proceed with in its inquiry if there were no prescription or prescription without even a word of diagnosis? In our view, the answer is obvious: to strengthen the traditional relationship of trust between a patient and his doctor and to also guard against the unscrupulous element in this relationship, it is in the interest of both parties, partricualrly a reasonably competent doctor -in fact, rather incumbent on the latter in his own and his patient''s interest - to record a prescription mentioning the patient''s history of complaints, current symptoms, his vital parameters and other clinical observations and a provisional diagnosis (and/or, recommendations for further diagnostic tests).

(vii) In this case, the OP is thus clearly guilty of serious deficiency in service (medical negligence) in not issuing a prescription for his treatment of the deceased Prakash on 4.9.1997 and then not recording his diagnosing Prakash''s ailment in the prescription(s) of 6.9.1997.

(viii) Notably, the complainant''s allegation is not that the OP failed to obtain valid consent before treating Prakash on the relevant dates. On this, as observed by the Apex Court (supra), "What choice do these poor patients have? Any treatment of whatever degree is a boon or a favour for them. The stark reality is that for a vast majority in the country, the concepts of informed consent or any form of consent, and choice in treatment, have no meaning or relevance." Therefore, it is not surprising that the complainant, a semi -literate woman barely able to scrawl her signature in her mother tongue Gujarati and to whom her Counsel had to explain the complaint written in English in Gujarati, did not question the OP''s conduct on this score of due disclosure prior to treatment. However, the complainant did challenge the OP''s treatment, alleging that he administered unduly strong medicines/injections to her son Prakash, because of which he died within a few hours of the treatment (on 6.9.1997). The allegation is natural for the complainant, the mother of the deceased, because she found her son dying within a few hours of receiving treatment from the OP on 6.9.1997. The allegation acquires validity under the Act and in view of the rulings of the Apex Court discussed at length above, for in the prescription(s) there is no record of the OP''s diagnosis of Prakash''s ailment requiring the OP to prescribe for and administer to Prakash, in his capacity as a doctor of ordinary skills, the injections that he actually did.

(ix) In addition, the OP''s overall conduct in this case must be noted with strong disapproval. As pointed out by Mrs. Shah, the OP''s stand before the State Commission was complete denial that he at all treated Prakash during the relevant period. However, in the appeal memorandum, he changed his position and admitted to having treated Prakash only on 4.9.1997. As we have seen from the foregoing discussion, there is preponderance of evidence that the OP also treated Prakash on 6.9.1997, at least shortly before his death, as the complainant alleged.

HOWEVER , in the light of the findings in the PMR, it is difficult to see how the State Commission concluded that Prakash''s death occurred as alleged in the complaint, viz., directly because of reaction to some injection/medicine that the OP allegedly administered to Prakash intravenously. Moreover, despite opportunity to do so even at the appellate stage, Mrs. Shah did not produce any medical literature in support of her contention that a PMR might not notice the cannula mark of an IV injection after 12 hours of the death as "physical injury", particularly if the Police reference seeking PM did not mention a suspicion on this score. The doctor, who conducted the PMR, was also not examined on this crucial issue. The State Commission could and should have suo motu considered such examination of the doctor conducting the PMR in exercise of its powers under Section 13(4) of the Act. Be that as it may.

THE OP is no doubt guilty of medical negligence. However, his negligence (and deficiency in service under the Act) lies in his failure to record even a provisional diagnosis of Prakash''s ailment before prescribing treatment. As we have seen, this failure has serious consequences. Secondly, the contradiction between his denial (at the stage of the complaint) of having at all treated Prakash during the relevant period and subsequent volte face in the appeal accepting that he did treat Prakash on 4.9.1997 do not reflect professional conduct worthy of a registered medical practitioner of such long standing as the OP claims to have. Such conduct can be due only to one cause: full awareness of his negligence in treating Prakash and then trying to wriggle out of the consequences. On the other hand, as observed, it is not possible to conclude that the OP''s negligence in treating Prakash directly caused his death, though it could have contributed to the death.

THOUGH , in the totality of the facts and circumstances of the case, the negligence on the part of the appellant -OP in treating the deceased son of the complainant, Prakash is established, it is to the extent discussed above and the death cannot be said to be attributable directly and wholly to the negligence / deficiency in service on the part of the appellant -OP. Accordingly, the order of the State Commission on the amount of compensation awarded (Rs. 5 lakh with interest) would be too high and unsustainable. Therefore, in the interest of justice, we allow the appeal partly and direct the appellant -OP to pay to the complainant a compensation of Rs. 2.5 (two and a half) lakh along with interest @ 9% per annum from the date of the complaint until the date of payment. If the payment is not made within four weeks from the date of this order, the amount shall carry interest @ 12% per annum for the period of default. Appeal partly allowed.