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2. The brief factual matrix leading to the above case is as here below. The patient Smt. Jasbeer Kaur, wife of the first claimant and mother of claimants 2 and 3 before the NCDRC visited the appellant hospital on 08.10.1996 and was diagnosed with kidney stone in her right kidney. She was advised to undergo surgery by the treating surgeon Dr. R.K. Majumdar. The patient who was examined as an outpatient had come back to the hospital only on 03.12.1996. On being examined again at that point, it was noticed that the right kidney had been severely damaged and the left kidney was also diagnosed with a stone. In medical terms, the diagnosis was referred as Hydronephrosis, Grade IV with renal stone in the right kidney and Hydronephrosis of Grade II in the left kidney. As advised earlier, the patient was again advised surgery.

3. Accordingly, the patient admitted herself on 06.12.1996 and she was declared fit for surgery. On 07.12.1996, Dr. H.K. Khurana informed the patient as also her husband that both the kidneys could not be operated at the same time due to the severe damage. They were advised that as per the medical practice, the less affected kidney that is the left kidney would be operated in the beginning since complete removal of the right kidney cannot be ruled out. In such eventuality, the left kidney if rectified would be able to function. The appellants contend that on 09.12.1996 an informed consent of high­risk surgery was obtained from the patient as well as her husband. The respondent No.1 and Dr. R.K. Majumdar were involved in performing the surgery of the left kidney, which was a successful operation. As per the say on behalf of the hospital and the doctors, the condition of the patient improved by 12.12.1996 due to which the possibility of the second surgery to the right kidney was considered. The necessary tests conducted by the anaesthetist, the physician and the surgeon resulted in clearing the patient for the second surgery.

6. The allegation against the appellant doctor and the hospital is that they did not exercise the care which was required in treating the patient. Though, the operation on the left kidney conducted on 09.12.1996 was successful, it is contended that the surgeon who had conducted the operation namely, Dr. Majumdar had recorded in the case sheet that the patient has poor tolerance to anaesthesia. It was the further grievance of the claimants before the NCDRC that the second operation within the short duration was forced upon the patient which led to the consequences. Despite the observation of the surgeon relating to the poor tolerance to anaesthesia, appropriate care was not taken and the required medical equipments more particularly the ventilator was not kept available. Further, the consent of the patient had not been obtained for the second operation. It was contended that even after the patient suffered a cardiac arrest proper care was not taken in having the presence of the cardiologist or a neurologist. The physician who attended the patient had also taken some time to change and attend to the patient. It was therefore contended that the said negligence on the part of the doctors as well as the hospital had resulted in the death of the patient.

“We are surprised to note that the treating doctor after recording that the patient had poor tolerance to anaesthesia has tried to defend his action by stating that poor tolerance to anaesthesia means nothing.” “However, we cannot be oblivious of the fact that Dr. Khurana was the Anaesthesiologist during the first surgery also and he was fully aware of the conditions of the patient. In reply to the interrogatories, he has clearly admitted that he has gone through the notings of Dr. Mazumdar wherein he has said the patient has poor tolerance to anaesthesia. We are stunned to note that he has stated in the reply to interrogatories that in medical parlance poor tolerance to anaesthesia means nothing'.” “It is common knowledge that a person can survive with one kidney, just as a person can survive with one lung. There are cases where a patient suffers from failure of both the kidneys and nephrectomy is performed to replace one of the damaged kidneys by a kidney of a donor after proper test and verification. Therefore, there was no hurry to perform the second surgery.” The extracted portion would indicate that the opinion as expressed by the NCDRC is not on analysis or based on medical opinion but their perception of the situation to arrive at a conclusion. Having expressed their personal opinion, they have in that context referred to the principles declared regarding Bolam test and have arrived at the conclusion that the second surgery should not have been taken up in such a hurry and in that context that the appellants have failed to clear the Bolam test and therefore they are negligent in performing of their duties. The conclusion reached to that effect is purely on applying the legal principles, without having any contra medical evidence on record despite the NCDRC itself observing that the surgeon was a qualified and experienced doctor and also that the anaesthetist had administered anaesthesia to 25,000 patients and are not ordinary but experienced doctors.