Case: MAHARAJA AGRASEN HOSPITAL  Vs. MASTER RISHABH SHARMA

5.1 Respondent No.2-Pooja Sharma – the Complainant No.2 was under the ante-natal care of Respondent No.4-Dr. Rama Sharma at Sharma Medical Centre since September 20055.2 On 02.04.2005, at about 5.30 p.m., the Respondent No.2 had to undergo a caesarean section in view of the condition of Placenta Previa. The baby-Respondent No.1 was born pre-term at 32 weeks gestation, with a weight of 1.49 kg at the time of birth5.3 On the same day, at about 8:30 p.m., Respondent No.4- Dr. Rama Sharma, the Gynaecologist referred the case for intensive care to Maharaja Agrasen Hospital- Appellant No.1At the time of admission, the general condition of the baby was poor, and was diagnosed as 32 weeks pre-term AGA with HMD. The baby was treated in the Neo-natal ICU of the Paediatrics Unit and was put on ventilatory support, and Surfactant injections were administered gradually5.4 The Respondent No.1-baby stayed in the Appellant No.1-Hospital for almost 4 weeks, and was dischargedon 29.04.2005, which was 27 days after birthThe Discharge Slip issued by the Appellant No.1- Hospital to the Complainants reads as follows:i Bagh, New Delhi-110026, Ph. 25106645 to 54: B/O. Pooja Sharma Age/Sexe of Admission: 02.04.2005 at 8.30: PT (32) with HMD with Neonatal Hyperbil withn at time of discharge:: Dr. G.S.Kochar /Dr. N. Jain: Emergency LSCS for placenta; Syp. Taxim O 1 ml BD x 5; Drops Visyneral Z 0.3 ml; Drop Vitcofol 5 drops; Drop Evion 5 drops; To review in Pead. OPD on Wed / Sat 4; Refer back to Rama Nursing Home (Sharma Medical Centre)_______________ ______-sd-____________ Consultant Medical Officer5.5 There is no advice to the Complainants to have the ROP test carried out on the baby, who was born prematurely, in the Discharge Slip. Post discharge, the Respondent No.2-Complainant brought the baby for a follow up check-up on 04.05.2005 to the Paediatrics Unit of the General OPD of the Appellant No.1- Hospital, when the baby was 4 weeks and 4 days old. The baby was examined by the Consultant Paediatricians - Dr. G.S. Kochhar and Dr. Naveen Jain/ Appellants No. 2 and 3As per the medical records, the Respondent No.1- baby was found to be stable, and Respondent No.2- Complainant was advised to continue breast feeding along with supplementsIt is pertinent to note that there was no advice or recommendation for ROP check-up on this date in the Medical Records produced by the Appellant No.1 – Hospital5.6 On 13.07.2005, the Respondent No.2-Complainant brought the baby for a 2 nd follow-up visit when he was over 3 months old to the Paediatrics Unit of the General OPD of the Appellant No.1-Hospital. The Respondent No.1-baby was examined by Dr. Manoj on behalf of Dr. G.S. Kochhar. Dr. Manoj advised the Complainants for the BERA scan/test to be conductedIt is pertinent to note that there was no advice for ROP check-up given even on this visit5.7 Respondent No.2-Complainant submits that sometime in November 2005, she noticed abnormal visual responses in the Respondent No.1 – baby. The Complainant asked for the medical records of the baby to have his follow up treatment done.The medical records were, however, not made available by Appellant No.1-Hospital5.8 On 23.11.2005, Respondent No.2 – Complainant took the baby to Nayantara Eye Clinic, Delhi where an ultrasound (B. Scan) was conducted. It was advised that eye-ointment and eye-drops be administered to the baby5.9 On 03.12.2005, the baby was taken by Respondent No.2- Complainant to Shroff Charity Eye Hospital, Delhi for further examination where the ultrasound (B. Scan) was conducted. The Shroff Charity Eye Hospital diagnosed that the baby had ROP Stage 5 in both eyes, which is a case of total retinal detachment5.10 Respondent No.2-Complainant approached Respondent No.4- Dr Rama Sharma, the Gynaecologist of Sharma Medical Centre to explain how the medical condition of Respondent No.1-baby had remained un- diagnosed. Dr. Rama Sharma shifted the blame to the Appellants5.11 On 07.12.2005, Respondent No.2-Complainant took the baby to the Appellant No.1-Hospital in the Private OPD Consultation. Dr. Sanjay Bhavan, Ophthalmologist examined Respondent No.1-baby. The case was referred to Dr. Lingam Gopal of Shankara Netralaya at Chennai for an urgent appointment5.12 On 07.01.2006, the Respondent No.1-baby was taken by his mother- Respondent No.2-Complainant to Dr. Rajendra Prasad Centre for Ophthalmic Sciences at AIIMS, New Delhi for OPD Consultation. After examination, it was confirmed that it was a case of ROP Stage 55.13 On 24.02.2007, the Respondent No.2-Complainant was constrained to issue a legal notice to the Appellant No.1-Hospital to provide the entire in-patient medical records of the baby in compliance with Regulation 1.3.2 of the Indian Medical Council (Professional Conduct, Etiquettes and Ethics) Regulations, 2002 ( IMC Regulations)5.14 The Appellant Nos. 1 to 3 failed to provide the in- patient medical records to the Complainant despite the issuance of legal notice.5.15 The Respondent No.2-Complainant then filed a complaint with the Delhi Medical Council for a direction to the Appellant No.1-Hospital to provide the complete in-patient medical records pertaining to the baby5.16 Eventually, the Appellant No.1-Hospital provided a copy of the medical records of the baby alongwith the Case Summary on 14.06.2007 after more than 2 years of discharge from the Appellant No.1-Hospital5.17 The Respondent No.2-Complainant contends that when she received these records, she was shocked to find that the medical records mentioned an alleged ROP check-up was conducted on 26.04.2005 by Appellant No.4-Dr. S.N. Jha. The Respondent No.2- Complainant contends that no ROP examination was conducted by Appellant No.4-Dr. S.N. Jha5.18 On 04.08.2007, the Respondent No.2-Complainant addressed a letter to the Medical Superintendent of Appellant No.1- Hospital. The relevant extract of the said letter is reproduced hereinbelow for ready reference:Under the above enclosure we have received photocopies of some Medical Record (uncertified) along with a case summary dated 13- 06-2007The said summary states that on 26-04-2007 ROP examination on our baby was conducted in the Ophthalmological unit of your hospital and review examination after two weeks was also advisedWe are rather intrigued by this observation as it does not find mention anywhere in the Discharge Summary nor is there any follow up adviseSince both of us do not recollect any such examination conducted in our presence or review advise and the said medical record is also totally silent about it, kindly provide us with the entire record of the Ophthalmological unit, name of the Paediatric Ophthalmologist who had conducted the ROP examination and his written report dated 26-04-20065.19 Appellant No.1- Hospital replied to the letter on 24.08.2007, wherein it was stated that:As per standard neonatal protocol, ophthalmological check-up was requested on 25-04-2005 to rule out ROPThe ophthalmological examination was done in the Nursery on 26- 04-2005 morning by Dr. S. N. Jha, Senior Consultant Ophthalmologist. The written report of the Ophthalmological unit is stated on page no.102 of the case record5.20 On 19.11.2007, Respondent Nos. 1 to 3 filed a Consumer Complaint under Section 21 (a)(i) of the Consumer Protection Act, 1986 before the National Commission [Consumer Case No. 119 Of 2007] claiming compensation of Rs. 1,30,25,000/- alleging medical negligence and deficiency in service on the part of Appellant Nos. 1 to 4, and Respondent No.4- the Gynaecologist, for compensation for the permanent physical disability, mental agony, and social stigma, deprivation of normal human life, companionship, torture and harassment etc5.21 The Delhi Medical Council vide order dated 14.12.2007 issued a warning to the Appellant No.1-Hospital for the delay in supplying the medical records of the Respondent No.1-baby to the Complainant5.22 The National Commission vide Order dated 29.02.2012 directed the Medical Board, AIIMS to give an expert opinion in the matter5.23 The Medical Board of AIIMS submitted its Report dated 11.05.2012 to the National Commission. The Report states that as per standard guidelines (National Neonatology Forum), new born babies who are born at 32 weeks gestation or less, should have their eyes examined at 3-4 weeks of age and more frequent check-ups to be done thereafter. Appellant No.4- Dr. S.N. Jha examined the baby at 24 days of age in accordance with established protocol. If ROP screening does not reveal any ROP, then repeat examination should be performed after 2 weeks. The Report goes on to say that after discharge, the baby was brought twice to the General OPD of the Appellant No.1- Hospital. There is no record to show that the baby was brought after 2 weeks of discharge to the Paediatrics OPD clinic when subsequent progression could been assessed and treated on time6. The National Commission vide its Judgment and Order dated 10.05.2016 (bench comprising of Presiding Member J.M. Malik J. and Dr. S.M. Kantikar, a qualified doctor) held as under:6.1 The National Commission was not convinced that the ROP screening was done by O.P. No.5/Appellant No.4 on Respondent No.1-baby. The progress sheet was devoid of any details about the ROP examination, the method and instruments used, drugs (midrates/tropicamide)/ anaesthesia used during ROP testing. The Ophthalmologist has not mentioned any details of the dilation of the pupils, and the findings by indirect ophthalmoscope, and the intra-ocular or extra retinal findings. The standard ROP screening protocol was not followed. The Nurses Daily Records from 25.04.2005 to 27.04.2005 does not show that any ROP examination was done by O.P. No. 5/Appellant No. 46.2 The AIIMS Report did not comment about the details of the ROP screening and the follow-up findings6.3 The National Commission held that the sequence of events leading to ROP usually takes about 4 to 5 weeks, except in a small sub-set of premature infants who develop rush disease in 2 to 3 weeks. The routine screenings should begin at no later than 4 weeks after birth, and possibly even earlier for infants at higher risk (2 to 3 weeks). It is strongly recommended that one session of retinal screening be carried before Day 30 of the life of any premature baby. The examination should be done with the dilation of the pupil with Tropicamide 0.5% to 1% with Phenylapinephrine 2.5%.6.4 The National Commission came to the conclusion that O.P. No.5/Appellant No.4 did not conduct the ROP screening on the baby. ROP screening is a team-work of the Paediatrician, Opthalmologist and the NICU nurse. There is no medical documentation of the ROP screening procedural details. The O.P. No. 5 should have performed the retinal examination with binocular indirect opthalmoscope on dilation of the pupil with scleral depression to ascertain avascular zone at the periphery of the retina. The National Commission found that nothing was forthcoming from Page 102 of the medical records. It appears to be a bare visual examination done by O.P. No. 5 in haste to cover up the caseThe National Commission was of the considered view that neither the ROP screening was performed, nor was any advice for follow up of ROP given to the Respondent No.2-Complainant/mother6.5 The National Commission held that the Respondent No.1-Master Rishabh had been rendered blind for life, which could never really be compensated in monetary terms. The baby had lost his father during the pendency of proceedings in 2013. The Respondent No.2-Complainant had been pursuing the consumer complaint single-handedly for almost a decade6.6 The National Commission awarded an amount of Rs. 53,00,000/- to the Respondent No.1-baby by applying the average inflationary principle at a conservative rate of 1% p.a., keeping in mind the fluctuations over the next 59 years. The National Commission awarded an amount of Rs. 10,00,000/- to the Respondent No.2-Complainant/mother who would have to take care of the blind child throughout her life. A further amount of Rs. 1,00,000/- was awarded towards costs of litigation. The National Commission held O.P. Nos. 2 to 5/ Appellant Nos. 1 to 4 to be jointly and severally liable to pay the total amount of Rs. 64,00,000/- within 2 months of the Order. The entire amount would carry interest at the rate of 9% p.a.Out of the total compensation awarded, Rs. 50,00,000/- would be kept in a Fixed Deposit with a nationalised bank till Respondent No.1 attained the age of majority. The periodic interest on the deposit would be paid to the Respondent No.2- Complainant/ mother till the child attained the age of majority. The remaining amount of Rs. 14,00,000/- would be released to the Respondent No.2-Complainant7. Aggrieved by the impugned Judgment passed by the National Commission, C.A. No. 6619 of 2016 was filed by the Hospital and the Doctors before this Court. The Complainants have filed Civil Appeal No. 9461 of 2019 (Diary No. 15393 of 2019) before this Court for enhancement of compensationThis Court vide interim Order dated 29.07.2016 ordered stay of the operation of the impugned Judgment, subject to the Appellant No.1-Hospital depositing 50% of the amount awarded by the National Commission in this Court within 6 weeks.On 07.09.2016, the Appellant No.1-Hospital deposited an amount of Rs. 32,00,000/- in this Court. This Court vide Order dated 7.11.2016, directed the amount to be kept in a Fixed Deposit with UCO Bank, which was renewed from time to time. The fixed deposit is due to mature on 17.02.2020: B/O. Pooja Sharma Age/Sexe of Admission: 02.04.2005 at 8.30: PT (32) with HMD with Neonatal Hyperbil withn at time of discharge:: Dr. G.S.Kochar /Dr. N. Jain: Emergency LSCS for placenta; Syp. Taxim O 1 ml BD x 5; Drops Visyneral Z 0.3 ml; Drop Vitcofol 5 drops; Drop Evion 5 drops; To review in Pead. OPD on Wed / Sat 4; Refer back to Rama Nursing Home (Sharma Medical Centre)

Court's reasoning:
11.1 Inordinate Delay in Supply of Medical RecordsWe find that there was an inordinate delay of over 2 years in making the Medical Records of Respondent No.1- 25 Master Rishabh available to the Respondent No.2- Complainant. Regulation 1.3.2 of the IMC Regulations casts a statutory obligation upon every doctor/hospital to provide medical records within 72 hours of the request being made by the patient11.1.1 The Medical Council of India has framed the IMC Regulations with the previous approval of the Central Government, in exercise of the powers conferred by Section 20A read with Section 33(m) of the Indian Medical Council Act, 1956. The IMC Regulations came into force on their publication in the Gazette of India on 06.04.2002, and have statutory force11.1.3 The IMC Regulations framed by the Medical Council of India are binding on all medical professionals, who are under a statutory obligation to provide medical records to the patients or their attendants. All hospitals, whether Government or private are liable to maintain the medical records, and provide the same to patient or their attendants within 72 hours of the request11.1.4 The Delhi Medical Council vide Circular No. DMC/DHS/F.5/2/2009 dated 15.05.2009 casts a statutory obligation on all registered medical practitioners and hospitals/nursing homes to strictly adhere to Regulation 1.3.2 of the IMC Regulations. The failure to comply with the same would constitute professional misconduct and entail disciplinary action11.1.6 The Respondent No.2-Complainant submitted that she had made several requests for being provided the in- patient records for further evaluation/examination of the baby, which was not made available to her for over 2 years after his discharge in April 2005 from the Appellant No.1- Hospital. Respondent No.2-Complainant had to run from one hospital to another so as to ascertain why her son had abnormal visual responses. Despite repeated requests, the Medical Records were withheld by the Hospital. The Respondent No.2-Complainant had a legal notice issued on 24.02.2007 to the Appellant No.1- Hospital requesting for the entire in-patient medical record of her child, and made a complaint to the Delhi Medical Council. The Appellant No.1 -Hospital eventually provided the medical record on 14.06.200711.1.7 The Delhi Medical Council vide Order dated 14.12.2007 issued a warning to the Appellant No.1- Hospital for the delay in supplying the medical records of Respondent No.1 to the ComplainantWe find that withholding the medical records of Respondent No.1, who was a premature baby, for a period of over 2 years, would constitute grave professional misconduct under Regulation 7, apart from being a gross deficiency in service on the part of the Appellant No.1-Hospital and its management11.2 Failure to diagnose Retinopathy of Prematurity (ROP)Retinopathy of Prematurity (ROP) is one of the major emerging causes of childhood blindness. A premature baby is not born with ROP. At the time of birth, particularly in the case of premature babies, the retina is immature, which is natural at this stage. It is the post-natal developments in the retinal vessels which could lead to ROP11.2.1 As per medical literature, all infants with a birth weight of less than 1500 grams, or gestational age of less than 32 weeks, are required to be mandatorily screened for ROP, which usually takes about 4 to 5 weeks to be diagnosed. The routine screening should begin no later than 4 weeks after birth, and possibly even earlier for infants at higher risk (2 to 3 weeks)The standard of care is to be judged in the light of the protocols and standard procedures prevailing on the date of birth, and not on the date of trial. Nizams Institute of Medical Sciences v. Prasanth S. Dhananka, (2009) 6 SCC 1  ; Jacob Mathew v. State of Punjab (2005) 6 SCC 1   : 2005 SCC (Cri) 1369A well organised screening strategy and timely intervention can to a large extent prevent blindness due to ROP. Extensive clinical trials and publications have established that among other factors, gestation period and low birth weight are critical in the pathophysiology of ROP. If detected early and treated with peripheral retinal cryopexy or laser, ROP blindness can be prevented to some extent. Once thecase crosses Stage 3, in very few cases can the sight be saved even by extensive vitreoretinal surgery11.2.4 It is clear from the above medical literature that ROP is a visually progressive disease, which can be treated successfully if it is diagnosed on time. ROP advances through 5 stages. Medical literature suggests that Stage 3 can be treated by Laser or Cryotherapy treatment in order to eliminate the abnormal vessels. Even at Stage 4, in some cases, the central retina or macula remains intact thereby keeping intact the central vision. When the disease progresses to Stage 5, there is a total detachment, and the retina becomes funnel shaped, leading to blindness11.2.5 We have carefully perused the original Medical Records of the Appellant No.1-Hospital, which were provided in a sealed cover to the CourtThere is no contemporaneous record to corroborate that ROP screening was done by Appellant No.4 on 26.04.2005. The Nurses Daily Record or Treatment Sheet do not mention that the dilation of the pupils of the baby were carried out by administration of Cyclopentolate (0.5%) and Phenylephrine (2.5%) drops to conduct test of ROPWe had orally enquired from the learned counsel appearing on behalf of Appellant No.4- Dr. S.N. Jha about the approximate time at which the ROP check-up was done by him on 26.04.2005. The counsel was unable to specify the time at which the baby was examined by him11.2.6 The Respondent No.1-baby was discharged on 29.04.2005. The Complainants were provided with a Discharge Slip. The Discharge Slip does not contain any advice for a mandatory follow-up for ROP. Rather, the Discharge Slip only advised the Complainant to bring the Respondent No.1 for a review to the Paediatrics OPD on Wednesday or Saturday at 4 P.M11.2.7 The Counsel for the Hospital and the Doctors contended that post-discharge, the Respondent No.2-Complainant did not bring the baby to the speciality Paediatric OPD for a check- up as advised in the Discharge Summary11.2.8 We have seen the original medical records produced by the Appellant No.1-Hospital, and find that on both occasions, i.e. 04.05.2005 and 13.07.2005, the Complainants went correctly to the Paediatrics Unit of the General OPD. Hence, the contention of the Appellants is liable to rejected as being completely baselessIt is thus abundantly clear that the baby was rightly taken to the Paediatrics Unit of the General OPD Clinic at the chronological age of 4 to 5 weeks, when the onset of ROP could have been detected. However, there was no advice given by the treating doctors i.e. Appellants Nos. 2 and 3 – the Consultant Paediatricians, nor the Appellant No.4 – Ophthalmologist to conduct the ROP test11.2.10 We find that the ROP was neither advised, nor carried out at all by the Appellant No.1-Hospital, or Appellant No.4-Dr. S.N. Jha, the Senior Ophthalmologist, throughout the period of hospitalisation of the baby, or even after discharge. The baby was born in the 32 nd gestational week, and was 1.49 kgs at birth. As per standard protocol, the ROP screening ought to have been done between 3-4 weeks from birth. The baby remained admitted for 27 days in the Hospital from 02.04.2005 to 29.04.2005. There is no justification whatsoever why the mandatory screening of ROP was not done for the baby, while he was under the direct care and supervision of the AppellantsWe affirm the findings of the National Commission of gross negligence by the Appellant Nos. 2 to 4-Doctors, and deficiency of service by the Appellant No.1- Hospital11.3 Report of the Medical Board constituted by AIIMSWe have already recorded a finding that the entry made in the Treatment Sheet (at pages 100 and 102 of the original Medical Records) seems to be an interpolation done subsequently to cover up the failure of the Hospital and the Doctors to advise or conduct the mandatory ROP check-up and follow-up protocolThe second point contained in the AIIMS Report that the baby was not taken to the Paediatrics OPD is wholly fallacious. We have seen the medical records, and find that the baby was, in fact, taken to the Paediatrics Unit of the General OPD. Hence, the basis of the Report is misconceived, and cannot be relied upon11.3.2 It is well-settled that a court is not bound by the evidence of an expert, which is advisory in nature. The court must derive its own conclusions after carefully sifting through the medical records, and whether the standard protocol was followed in the treatment of the patient. The duty of an expert witness is to furnish the Court with the necessary scientific criteria for testing the accuracy of the conclusions, so as to enable the Court to form an independent opinion by the application of this criteria to the facts proved by the evidence of the case. Ramesh Chandra Aggarwal vs. Regence Hospital Ltd. & Ors. (2009) 9 SCC 709  ; State of H.P. v. Jai Lal (1999) 7 SCC 280   : 1999 SCC (Cri) 1184 Whether such evidence could be accepted or how much weight should be attached to it is for the court to decide. Malay Kumar Ganguly v. Dr. Sukumar Mukherjee, (2009) 9 SCC 221   : (2010) 2 SCC (Cri) 299   : (2009) 3 SCC (Civ) 663; V. Kishan Rao v. Nikhil Super Speciality Hospital, (2010) 5 SCC 513   : (2010) 2 SCC (Civ) 46011.3.3 We accept the view taken by the National Commission in disregarding the opinion of the Medical Board constituted by AIIMS11.3.4 The Complainants have discharged the initial burden of proof ( Nizams Institute of Medical Sciences v. Prasanth S. Dhananka, (2009) 6 SCC 1   : (2009) 2 SCC (Civ) 688; Savita Garg v. National Heart Institute (2004) 8 SCC 56  ) by making out a case of clear negligence on the part of the Appellant No.1-Hospital and the Paediatric doctors under whose care the baby was admitted, as also Appellant No.4 – Dr. S.N. Jha, the senior Ophthalmologist attached to the Appellant No.1-HospitalThe Appellant No.1 - Hospital and the Appellants Nos. 2-4 - Doctors have failed to satisfy the Court that ROP tests were conducted at any point of time, or that the Complainants were even advised to get the ROP test done11.4 Medical Negligence and Duty of Care11.4.1 Medical negligence comprises of the following constituents: (1) A legal duty to exercise due care on the part of the medical professional; (2) failure to inform the patient ofthe risks involved; (3) the patient suffers damage as a consequence of the undisclosed risk by the medical professional; (4) if the risk had been disclosed, the patient would have avoided the injury; (5) breach of the said duty would give rise to an actionable claim of negligence11.4.13 Applying the aforesaid principles to the facts of the present case, Appellant Nos. 2 and 3 viz. Dr. G.S. Kochhar and Dr. Naveen Jain, the Consultant Paediatricians, undoubtedly possessed the skill and qualifications of a Paediatrician, and the baby was placed under their direct care and treatment from birth till he was 3 ½ months old. They owed a duty of care to the baby and his parents. Appellant No.4- Dr. S.N. Jha, the Senior Consultant Ophthalmologist, who was engaged by the Appellant No.1- Hospital, and was the specialist in the Ophthalmology Department, ought to have followed the standard protocol for screening the Respondent No.1-baby for ROP, which is prescribed at the chronological age of 3 to 4 weeks after birth.11.4.14 Appellant Nos.1 to 3 are liable for medical negligence since at no stage were the parents of Complainant No.1 either advised or guided about the possibility of occurrence of ROP in a premature baby, nor was the baby examined by Appellant No.4, the Ophthalmologist as per standard protocol. The doctors ought to have been fully aware of the high chances of occurrence of ROP in a pre-term baby. The lack of care constitutes a gross deficiency in serviceAfter discharge on 29.04.2005, the baby was brought on 04.05.2005 at the chronological age of 5 weeks. Even on this date, no ROP test was either advised or conductedThe baby was brought for a further follow up check-up on 13.07.2005, by which time the baby was 3 ½ months old. Even on this visit, the Appellants did not advise or guide the Respondent No.2-Complainant to have the ROP test conducted11.4.15 After reviewing the medical literature setting out the contemporaneous standards and established protocols on ROP, the reasonable standard of care for a premature baby, mandates screening and checking up for ROP. It is a medically accepted position that ROP is a reversible disease, if diagnosed up to Stage 3. Had the ROP test been conducted by the Appellants, there would have been timely detection of the onset of ROP, which at that stage would have been reversibleOn account of the negligence of the Appellants 2 to 4, the disease remained undiagnosed. It came to be diagnosed on 03.12.2005, when the baby was 8 months old, by Shroff Charity Eye Hospital. By this time, the ROP had reached Stage 5, when it becomes irreversible leading to total blindness of the Respondent No.1- baby11.4.16 We affirm the findings of the National Commission to hold that the Appellant No.1-Hospital, Appellant Nos. 2 and 3- the Paediatricians, and Appellant No.4 – Dr. S.N. Jha, the Senior Ophthalmologist, owed a legal duty of care to the Complainants/Respondents No.1 and 2. The failure to inform the Respondent No.2-mother of the necessity to have the ROP test conducted in the case of a pre-term baby, and the high risk involved which could lead to total blindness, was a breach of duty. Furthermore, the failure to carry out the ROP test, which is mandated by standard protocol, while the baby was under their direct care and supervision from birth till he was 3 ½ months old, amounted to gross negligence by the Doctors, and deficiency of service by the Hospital. The consequential damage caused to the baby by not having conducted the mandatory ROP test, which led to the total blindess of the baby, has given rise to an actionable claim of negligence11.4.17 It is well established that a hospital is vicariously liable for the acts of negligence committed by the doctors engaged or empanelled to provide medical care. Savita Garg v. National Heart Institute (2004) 8 SCC 56  ; Balram Prasad (2014) 1 SCC 384   : (2014) 1 SCC (Civ) 327; Achutrao Haribhau Khodwa v. State of Maharashtra (1996) 2 SCC 634  ; V. Krishnakumar v. State of Tamil Nadu, (2015) 9 SCC 388   : (2015) 4 SCC (Civ) 546It is common experience that when a patient goes to a hospital, he/she goes there on account of the reputation of the hospital, and with the hope that due and proper care will be taken by the hospital authorities. Savita Garg v. National Heart Institute (2004) 8 SCC 56   : (2004) 8 Scale 694   If the hospital fails to discharge their duties through their doctors, being employed on job basis or employed on contract basis, it is the hospital which has to justify the acts of commission or omission on behalf of their doctorsSavita Garg v. National Heart Institute (2004) 8 SCC 56   : (2004) 8 Scale 694  11.4.18 Accordingly, we hold Appellant No.1-Hospital to be vicariously liable for the acts of omission and commission committed by Appellant Nos. 2 to 4. We hold all the Appellants as being jointly and severally liable to pay compensation to the ComplainantsThe Complainants had claimed Rs. 1,30,25,000/- as compensation before the National Commission. The National Commission vide the Impugned Judgment awarded a total sum of Rs. 64,00,000/- to the Complainants along with interest11.5.2 This Court vide Order dated 06.11.2019 directed the Appellants to release a sum of Rs.5,00,000/- (Rupees Five Lakhs) in favour of the Respondent No.2-Complainant from the amount lying deposited by the Appellant No.1-Hospital in the CourtThis Court further directed the Complainant/Respondent No.2 to file an affidavit regarding the education received by the Respondent No.1, and the level of proficiency he had attained11.5.3 Accordingly, the Respondent No.2- Complainant has stated on affidavit that the Respondent No.1, who is now 14 years old, was studying in a Government Senior Secondary School for Blind Boys, Kingsway Camp from 2013 to 2017, and barely received education for 4 years, up to 5 th standard. The Respondent No.1 was forced to leave school since the Respondent No.2-Complainant was unable to bear his educational, co-curricular and transportation expenses. The father of Respondent No.1, who was working as a security guard with the Municipal Corporation of Delhi, had expired in 2013. The Respondent No.2-Complainant stated that she is currently employed as a part-time receptionist since 2017, and earns Rs. 5,500/- per month as salary, and receives Rs. 2,500/- per month under the Delhi Vidhwa Pension Yojna. She further stated that Respondent No.1 received Rs. 2,500/- per month under the Delhi Governments Scheme for Subsistence Allowance to Persons with Special Needs11.5.4 The grant of compensation to remedy the wrong of medical negligence is within the realm of law of torts. It is based on the principle of restitutio in integrum. The said principle provides that a person is entitled to damages which should as nearly as possible get that sum of money which would put him in the same position as he would have been if he had not sustained the wrong. (Livingstone v. Rawyards Coal Co., (1880) LR 5 AC 25 (HL)]; followed in Malay Kumar Ganguly v. Sukumar Mukherjee, (2009) 9 SCC 221   : (2009) 3 SCC (Civ) 663 : (2010) 2 SCC (Cri) 299     and V. Krishnakumar v. State of T.N., (2015) 9 SCC 388   : (2015) 4 SCC (Civ) 546; Balram Prasad v. Kunal Saha, (2014) 1 SCC 384   : (2014) 1 SCC (Civ) 327)11.5.5 In our considered view, having regard to the finding that the medical negligence in the instant case occurred in 2005, and the litigation has been pending before this Court for over 3 years, coupled with the fact that the additional monthly expenses such as the care of an attendant/nurse, educational expenses of the patient in a special school, assistive devices etc. have not been taken into account, it would serve the ends of justice if the compensation awardedby the National Commission is enhanced, by a further lump-sum amount of Rs. 12,00,000 (Rupees Twelve Lakhs)11.5.6 In conclusion, we pass the following directions to secure the interest and welfare of Respondent No.1. These directions are being passed to ensure that the compensation received is utilized for the welfare of Respondent No.1, to enable him to acquire suitable education and equip him to become self- reliantA medical professional should be alert to the hazards and risks in any professional task he undertakes to the extent that other ordinarily competent members of the profession would be alert. He must bring to any professional task he undertakes reasonable skill that other ordinarily competent members of his profession would bring11.4.17 It is well established that a hospital is vicariously liable for the acts of negligence committed by the doctors engaged or empanelled to provide medical care. Savita Garg v. National Heart Institute (2004) 8 SCC 56  ; Balram Prasad (2014) 1 SCC 384   : (2014) 1 SCC (Civ) 327; Achutrao Haribhau Khodwa v. State of Maharashtra (1996) 2 SCC 634  ; V. Krishnakumar v. State of Tamil Nadu, (2015) 9 SCC 388   : (2015) 4 SCC (Civ) 546It is common experience that when a patient goes to a hospital, he/she goes there on account of the reputation of the hospital, and with the hope that due and proper care will be taken by the hospital authorities.Savita Garg v. National Heart Institute (2004) 8 SCC 56   : (2004) 8 Scale 694  If the hospital fails to discharge their duties through their doctors, being employed on job basis or employed on contract basis, it is the hospital which has to justify the acts of commission or omission on behalf of their doctorsSavita Garg v. National Heart Institute (2004) 8 SCC 56   : (2004) 8 Scale 694  11.4.1 Medical negligence comprises of the following constituents: (1) A legal duty to exercise due care on the part of the medical professional; (2) failure to inform the patient ofthe risks involved; (3) the patient suffers damage as a consequence of the undisclosed risk by the medical professional; (4) if the risk had been disclosed, the patient would have avoided the injury; (5) breach of the said duty would give rise to an actionable claim of negligenceThe cause of action for negligence arises only when damage occurs, since damage is a necessary ingredient of this tort. In a complaint of medical negligence, the burden is on the complainant to prove breach of duty, injury and causation. The injury must be sufficiently proximate to the medical practitioners breach of duty. In the absence of evidence to the contrary adduced by the opposite party, an inference of causation may be drawn even though positive or scientific proof is lacking. Postgraduate Institute of Medical Education & Research v. Jaspal Singh, (2009) 7 SCC 330   : (2009) 3 SCC (Cri) 399   : (2009) 3 SCC (Civ) 11411.4.2 Medical negligence is the breach of a duty of care by an act of omission or commission by a medical professional of ordinary prudence. Actionable medical negligence is the neglect in exercising a reasonable degree of skill and knowledge to the patient, to whom he owes a duty of care, which has resulted in injury to such person. The standard to be applied for adjudging whether the medical professional charged has been negligent or not, in the performance of his duty, would be that of an ordinary competent person exercising ordinary skill in the profession. The law requires neither the very highest nor a very low degree of care and competence to adjudge whether the medical professional has been negligent in the treatment of the patient. Refer to Laxman Balkrishna Joshi (Dr.) v. Dr. Trimbak Bapu Godbole, (1969) 1 SCR 206   : AIR 1969 SC 128  ; Kusum Sharma v. Batra Hospital (2010) 3 SCC 480   : (2010) 2 SCC (Cri) 1127 : (2010) 1 SCC (Civ) 747