Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.1385 OF 2001
Kusum Sharma & Others .. Appellants
Versus
Batra Hospital & Medical Research Centre
& Others .. Respondents
J U D G M E N T
Dalveer Bhandari, J.
1. This appeal is directed against the judgment and order
th
dated 30 August, 2000 passed by the National Consumer
Disputes Redressal Commission, New Delhi (for short,
‘National Commission’) in Original Petition No.116 of 1991.
2. The appellants filed a complaint under section 21 of the
Consumer Protection Act, 1986 claiming compensation of
Rs.45 lakhs attributing deficiency in services and medical
negligence in the treatment of the deceased Shri R.K. Sharma
(who was the husband of appellant no.1, Kusum Sharma and
the father of appellant nos. 2 and 3).
3. Brief facts which are necessary to dispose of this appeal
are as under:-
4. Late Shri R.K. Sharma was a Senior Operations Manager
in the Indian Oil Corporation (Marketing Division). In June
1989, he developed blood pressure. He was very obese. He
complained of swelling and breathlessness while climbing
stairs. He visited Mool Chand Hospital on 10.12.1989 but no
diagnosis could be made. The Indian Oil Corporation referred
him to Batra Hospital on 14.3.1990 where he was examined
by Dr. R.K. Mani, respondent no.2 and Dr. S. Arora who
advised him to get admitted for Anarsarca (Swelling).
5. On 18.3.1990, Shri Sharma was admitted in Batra
Hospital. On 20.3.1990, an ultrasound of abdomen was done
and the next day, i.e., on 21.3.1990, a C.T. scan of abdomen
was done and it was found that there was a smooth surface
mass in the left adrenal measuring 4.5 x 5 cm and that the
right adrenal was normal. Surgery became imperative for
removing the left adrenal. The deceased, Shri Sharma and
appellant no.1 were informed by Dr. Mani, respondent no.2
that it was well encapsulated benign tumor of the left adrenal
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of less than 5 cm in size which could be taken out by an
operation. It was decided to carry out the surgical operation
for the removal of abdominal tumor. On 2.4.1990, the doctor
obtained consent from the appellants for the operation of
removal of abdominal tumor. On test, the tumor was found to
be malignant. The treatment for malignancy by way of
administering Mitotane could not be given as it was known to
have side effects.
6. The surgery was carried out on 2.4.1990 by Dr. Kapil
Kumar, respondent no.3. During the surgery, the body of the
pancreas was damaged which was treated and a drain was
fixed to drain out the fluids. According to the appellants,
considerable pain, inconvenience and anxiety were caused to
the deceased and the appellants as the flow of fluids did not
stop. After another expert consultation with Dr. T.K. Bose,
respondent no.4 a second surgery was carried out on
23.5.1990 in Batra Hospital by Dr. Bose assisted by Dr. Kapil
Kumar.
7. Shri Sharma was fitted with two bags to drain out the
fluids and in due course, wounds were supposed to heal inside
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and the fluid was to stop. The deceased was discharged on
23.6.1990 carrying two bags on his body, with an advice to
follow up and for change of the dressing. The deceased next
visited Batra Hospital only on 31.8.1990 and that too to obtain
a Medical Certificate from Dr. Mani, respondent no.2.
8. On 9.10.1990, Shri Sharma vomited at home and
arrangements for shifting him to the Batra Hospital were made
and the Hospital’s ambulance sent by Dr. Mani. Shri Sharma
died in the hospital on 11.10.1990 on account of ‘pyogenic
meningitis’.
9. It is pertinent to mention that after the discharge from
Batra Hospital on 23.6.1990, the deceased wrote a letter on
26.6.1990 to his employer narrating the agony and the pain he
underwent at the hands of the doctors in Batra Hospital.
10. The deceased, on the suggestion of Dr. Bose, respondent
no.4 visited Modi Hospital on 10.7.1990 where Dr. Bose was a
Consulting Surgeon for change of dressing after 17 days.
Respondent nos. 2 and 3, namely, Dr. Mani and Dr. Kapil
Kumar visited the residence of the deceased on 14.7.1990 and
found him in a bad condition and asked him to go to AIIMS
4
where he was admitted on 22.7.1990 and treatment was given
for pancreatic fistula and chronic fistula. He was discharged
on 26.7.1990 with an advice to follow up in the O.P.D. The
deceased again went to Mool Chand Hospital on 17.8.1990
with pancreatic and feacal fistula which was dressed. The
deceased was discharged from Mool Chand Hospital on
31.8.1990. The deceased went to Jodhpur on 29.9.1990 and
on 30.9.1990 he had to be admitted in the Mahatma Gandhi
Hospital at Jodhpur where he was diagnosed with having post-
operative complications of Adrenoloctomy and Glutteal
abscess. The deceased was discharged from there on
3.10.1990 with an advice to get further treatment at AIIMS
and when the deceased again went to AIIMS on 8.10.1990, Dr.
Kuchupillai, a senior doctor at AIIMS wrote on a slip ‘to be
discussed in the Endo-Surgical Conference on 8.10.1990’.
11. The appellants after the death of Shri Sharma filed a
complaint under section 21 of the Consumer Protection Act,
1986 before the National Commission claiming compensation
attributing deficiency in services and medical negligence in the
treatment of the deceased Shri Sharma.
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12. The appellants attributed death of Shri Sharma because
of negligence of the doctors and the hospital. The appellants
alleged that the informed consent was completely lacking in
this case. The appellants also alleged that the only tests done
before operation to establish the nature of tumor were
ultrasound and C.T. scan which clearly showed a well
capsulated tumor of the size 4.5 x 5 cm. in the left adrenal
and the right adrenal was normal.
13. The appellants alleged that the deceased Shri Sharma
had no access whatsoever to any of the hospitals records
before filing the complaint.
14. The appellants also alleged that there was nothing on
record to conclusively establish malignancy of the tumor
before the operation was undertaken. The appellants also
had the grievance that they were not told about the possible
complications of the operation. They were told that it was a
small and specific surgery, whereas, the operation lasted for
six hours. The appellants alleged that pancreatic abscess was
evident as a result of pancreatic injury during surgery. The
appellants further alleged that there was nothing on record to
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show that Dr. Kapil Kumar, respondent no. 3 possessed any
kind of experience and skill required to undertake such a
complicated operation.
15. The appellants also had the grievance that they were not
informed in time of the damage caused to the body of pancreas
and the removal of the spleen.
16. According to the appellants, the ‘anterior’ approach
adopted at the time of first surgery was not the correct
approach. Surgery should have been done by adopting
‘posterior’ approach for removal of left adrenal tumor. Dr.
Kapil Kumar, respondent no. 3 after the first operation on
2.4.1990 told the appellants that the operation was successful
and the tumor was completely removed which was in one
piece, well defined and no spreading was there. After the
surgery, blood was coming out in a tube which was inserted
on the left side of the abdomen. On specific query made by the
deceased and appellant no.1, respondent nos. 2 and 3 told
them that the pancreas was perfectly normal but during
operation on 2.4.1990, it was slightly damaged but repaired
instantly, hence there was no cause of any anxiety. When the
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fact of damage to pancreas came to the notice of the deceased,
he asked for the details which were not given. The appellants
alleged that the tumor taken out from the body was not
malignant.
17. The complaint of the appellants was thoroughly
examined and dealt with by the National Commission. The
National Commission had decided the entire case of the
appellants in the light of the law which has been crystallized
by a number of cases decided by this Court. Some of them
have been extensively dealt with by the Commission.
18. The allegations in the complaint were strongly rebutted
by Dr. Kapil Kumar, respondent no. 3. Dr. Kapil stated in his
affidavit that the anterior approach was preferred over the
posterior approach in the suspected case of cancer, which was
the case of Shri Sharma. The former approach enables the
surgeon to look at liver, the aortae area, the general spread
and the opposite adrenal gland. The risk involved was
explained to the patient and the appellants and they had
agreed to the surgery after due consultation with the family
doctor.
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19. With the help of medical texts in support of adopting
‘anterior’ approach, respondent no. 3 mentioned as under:
“(i) “The ‘anterior’ approach for
adrenalectomy is mandatory whenever optimum
exposure is required or when exploration of the
entire abdomen is necessary. Therefore, this
approach is used in patients with adrenal tumours
>4 cm in diameter, or in patients with possibly
malignant tumours of any size, such as
pheochromocytoma or adrenocortical carcinoma…..
Resection of the left adrenal gland requires
mobilization of the spleen and left colon. The lateral
peritoneal attachments of the left colon are freed,
initially. Then the spleen is scooped out from the
left upper guardant medially and the avascular
attachments between the spleen and diaphragm are
divided. The spleen, stomach, pancreatic tail and
left colon are retracted medially en bloc to the
superior mesenteric vessels. The left adrenal gland
is exposed splendidly in this manner”. –
Peritoneum, Retroperitoneum and Mesentery –
Section IV.
(ii) “Adrenal operations. Surgery should be
initial treatment for all patients with Cushing
syndrome secondary to adrenal adenoma or
carcinoma. Preoperative radiologic lateralization of
the tumor allows resection via a unilateral flank
incision. Adrenalectomy is curative. Postoperative
steroid replacement therapy is necessary until the
suppressed gland recovers (3-6 months).
Adrenal carcinoma should be approached via a
midline incision to allow radical resection, since
surgery is only hope for cure”. – Principles of
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Surgery, 18 Edition Page 560.
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(iii) “Adrenocortical malignancies are rare,
often at advanced stage when first discovered and
should be approached using an anterior approach
to allow adequate exposure of the tumor and
surrounding soft tissue and organs”. – Technical
Aspects of Adrenalectomy – By Clive S. Grant and
Jon A. Van Heerden – Chapter Thirty Five.”
20. The medical texts quoted above speak of both the
approaches for adrenaloctomy. Nowhere the appellant no.1
has been able to support her contention that posterior
approach was the only possible and proper approach and
respondent no. 3 was negligent in adopting the anterior
approach.
21. Apart from the medical literature, Dr. N. K. Shukla,
Additional Professor at AIIMS and a well-know surgeon stated
in unequivocal terms in response to a specific question from
the appellant no.1 that for malignant tumors, by and large, we
prefer anterior approach.
22. Dr. Nandi, Professor and Head of Department of Gastro-
Intestinal Surgery at AIIMS also supported ‘anterior’ approach
and confirmed and reconfirmed adoption of ‘anterior’ approach
in view of inherent advantages of the approach.
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23. In view of the medical literature and the evidence of
eminent doctors of AIIMS, the National Commission did not
find any merit in the allegations levelled.
24. According to the appellants, Dr. Bose, respondent no. 4,
who performed the second surgery on 23.5.1990 did not follow
the advice of Dr. Nandi, Professor and the Head of Department
of Gastro-Intestinal Surgery at AIIMS. Dr. Nandi had advised
placing of feeding tube at a designated place, but this was not
done.
25. Dr. Bose, Respondent no. 4 stated in his affidavit that
there are three well known alternative methods of food supply
of nutrition minimizing any leakage of enzymes from the
pancreas. Any of the alternative methods could be adopted
only after opening the stomach and this is precisely what
respondent no. 4 did, i.e. cleared the area of abscess, dead
and other infective tissues and inserted a second tube for
drainage of fluid in the affected area and in the pancreatic
duct. Respondent no. 4 also inserted a second tube connecting
the exterior of the abdomen with the affected part of the
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pancreas and the abdomen for drainage and clearance in
support of the first tube inserted for drainage. According to
respondent no. 4, this was the best course which could be
done keeping in view the inside status of the stomach of the
deceased and that was done.
26. The National Commission did not find any merit in this
complaint of the appellants.
27. Another complaint made by the appellants was with
regard to ‘Gluteal abscess’ which was attributed to ‘pyogenic
meningitis’ resulting in the death of Shri Sharma which was
first observed in the Medical College Hospital at Jodhpur,
where the deceased had gone in connection with performing
certain rites in connection with the death of his mother-in-law.
The Gluteal abscess was drained by a simple incision. He
was discharged from there on 3.10.1990 with an advice to go
to AIIMS, New Delhi and meet Dr. Kuchupillai, the
Endoconologist. According to the doctor, there was not even a
whisper of any incision or draining of gluteal abscess. The
Essentiality Certificate makes it clear that no incision was
made to drain out gluteal abscess.
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28. The appellants aggrieved by the judgment and order of
the National Commission filed the present appeal before this
court.
29. This court issued notice and in pursuance to the notice
issued by this court, a counter affidavit on behalf of
respondent no.1 has been filed by Dr. Ranbir Kumar Gupta. It
is mentioned in the affidavit that although the respondents
fully sympathized with the appellants’ unfortunate loss, the
respondents are constrained to submit that the appellants had
presented a malicious, fabricated and distorted account to
create a false impression that the respondents were guilty of
negligence in treating late Shri R.K. Sharma.
30. The respondents also submitted that the appellants have
ignored the fact that the medicine is not an exact science
involving precision and every surgical operation involves
uncalculated risks and merely because a complication had
ensued, it does not mean that the hospital or the doctor was
guilty of negligence. A medical practitioner is not expected to
achieve success in every case that he treats. The duty of the
Doctor like that of other professional men is to exercise
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reasonable skill and care. The test is the standard of the
ordinary skilled man. It is further submitted in the counter
affidavit that the hospital and the doctors attended late Shri
Sharma with utmost care, caution and skill and he was
treated with total devotion and dedication. Shri Sharma’s
death was attributable to the serious disease with which he
was suffering from. It is also mentioned that the conduct of
the deceased himself was negligent when he was discharged
on 23.6.1990. The doctors specifically advised him “Regular
Medical Follow Up” which the deceased failed to attend. In
fact, subsequently, it was respondent no.4 who called upon
the deceased and persuaded him to visit the Modi Hospital for
a change of dressing. The Fitness Certificate issued to the
deceased also bore the endorsement “he would need prolonged
and regular follow up”. However, the deceased did not make
any effort and was totally negligent.
31. According to the affidavit, the deceased was admitted on
18.3.1990 in Batra Hospital. Dr. R.K. Mani recommended
certain investigations such as abdominal Utrasound, Echo-
cardiogram Blood Tests etc. On 20.3.1990, Dr. Mani ordered a
C.T. Scan of the abdomen for a suspected lump in the
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abdomen. The C.T. abdomen revealed a large left adrenal
mass. Accordingly, the following note was recorded by Dr.
R.K. Mani in the case sheet on 21.3.1990:-
“CT abdomen reveals a large left adrenal mass.
Evidently there is a secreting adrenal tumour.
Patient needs full work up re hormonal status and
CT Head Scan.” The same day Dr. R.K. Mani
referred the case to Dr. C.M. Batra, Endocrinologist
and sought Dr. Batra’s opinion on the diagnosis
made by him that Anasrarca was attributable to the
Adrenal tumour. Dr. Mani also referred Shri R.K.
Sharma to a Dermatologist. That after reviewing the
case Dr. C.M. Batra agreed with Dr. Mani that
Anarsarca was due to the Adrenal Tumour. Dr.
Batra was also of the opinion that the Adrenal
Tumour could be due to either Adrenal or Adrenal
Carcinoma (i.e. cancer). Dr. Batra recommended a
C.T. Thorax Bone and Skeletol survey.
The Dermatologist Dr. Kandhari reported that Shri
R.K. Sharma had a fungal infection. After the
reports of all the tests and the report of the
hormonal assays had been received, respondent
no.2 came to a confirmed diagnosis that Shri R.K.
Sharma had a secreting adrenal tumour. The
patient was informed that surgery for removal of an
adrenal tumour was planned. Appellant no.1 was
also informed that the tumour was suspected to be
malignant. Mrs. Kusum Sharma told respondent
no.2 that one of her relations was a doctor working
in Jodhpur Medical College and that she would like
to consult him. The said relation of Smt. Kusum
Sharma came down to Delhi, examined Shri R.K.
Sharma and went through all the reports.
Thereafter, Smt. Kusum Sharma gave consent for
the surgery. Dr. Kapil Kumar, who specializes in
surgical oncology, i.e., cancer surgery was asked to
operate upon Shri R.K. Sharma. The risk involved
in the operation was explained to the petitioner, her
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husband (now deceased) and their relative and they
agreed after due consultation with their family
doctor.”
32. Shri Sharma was operated on 2.4.1990 by Dr. Kapil
Kumar, respondent no.3 and the adrenal tumour was
removed. During surgery it became necessary to remove the
spleen of Shri R.K. Sharma. The operation was successful.
However, the tail of the pancreas was traumatized during
retraction as Shri R.K. Sharma was extremely obese. On
examination, the injury to the pancreas was found to be
superficial and non-ductal. The damage to the pancreas was
repaired immediately with interrupted non-absorbable sutures
and drains were placed. The injury to the pancreas was
known during surgery and the same was repaired
immediately. It was clearly recorded in the operation transcript
that the body of the pancreas was damaged on its posterior
surface. The said fact was recorded in the discharge
summary.
33. It is submitted that after the surgery Shri R.K. Sharma
was subjected to ultrasound imaging and sonogram. On
26.4.1990 respondent no.2 ordered a CT Scan as he suspected
the existence of a pancreatic abscess. The CT Scan report was
16
suggestive of paripancreatic inflammation and pancreatic
abscess. Thus the CT Scan merely confirmed the suspicion of
appellant no.1, the wife of Shri R.K. Sharma who was well
aware of the injury to the pancreas and the possibility of there
being a pancreatic abscess and she had long discussion with
respondent nos.2 and 3 regarding the prognosis. It is denied
that the patient and the appellants were assured that fluid
discharge would stop within 2 or 3 days time or that it was
normal complication after any surgery.
34. It is submitted that the tumour mass was sent for biopsy
the same day i.e. 2.4.1990. The histopathology report was
received the next day and it recorded a positive finding of the
tumour being malignant. Since cases of adrenal cancer have a
very poor prognosis, six slides were sent to Sir Ganga Ram
Hospital for confirmation. The histopathology report from Sir
Ganga Ram Hospital also indicated cancer of the adrenal
gland.
35. It is admitted that due to the insistence of the patient
and the appellants to seek expert advice of the All India
Institute of Medical Science the patient was referred to Sir
17
Ganga Ram Hospital for E.R.C.P. Test. After the CT Scan
report dated 26.4.1990 confirmed the existence of pancreatic
abscess, on 28.4.1990, respondent nos.2 and 3 sought the
advice of Dr. T.K. Bose, respondent no.4. An E.R.C.P. test and
Sonogram were recommended by respondent no.4 and it was
again respondent no.4 who suggested that the opinion of Prof.
Nandi of All India Institute of Medical Sciences be sought.
E.R.C.P. and Sonogram are sophisticated tests and the patient
can hardly be expected to be aware of such procedures. It is
submitted that the E.R.C.P. test confirmed the initial diagnosis
made by respondent nos. 2 and 3 that there being a leakage
from the pancreatic duct and showed the exact site of leakage.
Determination of exact site of leakage is one of the principal
functions of the E.R.C.P. test.
36. In the counter-affidavit it is specifically denied that the
deceased was dissatisfied with the treatment. In the affidavit,
it is mentioned that Dr. T.K. Bose and Dr. Kapil Kumar
adopted the procedure, which in their opinion was in the best
interest of the patient, Shri Sharma.
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37. During the second operation on 23.5.1990 it was found
that there was matting together of proximal jejunal loops
(intestinal loops) in the left infra-colic compartment subjacent
to root of transverse mescolon and it was technically
hazardous to do feeding jejunostomy. That is why a deviation
was made. Dr. T.K. Bose and Dr. Kapil Kumar were not
obliged to follow every detail of Dr. Nandi’s recommendation as
appropriate decisions were to be made in accordance with the
findings at surgery. It would be pertinent to point out that Dr.
Nandi’s note was at best a theoretical analysis whereas Dr.
Bose was the man on the spot. Matting of jejunal loops was
not known to Dr. Nandi and came to be known only on the
operation table.
38. It is submitted that the bleeding (hematemsia) was due to
stress ulceration and not due to damage to the stomach by a
Nasodudoenal tube. Such bleeding is quite common after
major surgery. It is denied that fundus of the stomach was
damaged during surgery or during placement of the
Nasodudoenal tube as alleged by the appellants. In fact, the
site of surgery was nowhere near the fundus of the stomach.
It is denied that any procedure adopted by Dr. Bose and Dr.
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Kapil Kumar in surgery endangered the life of the patient.
Shri R.K. Sharma was discharged as his surgical wounds had
healed and his overall condition was satisfactory.
39. It is submitted that after his discharge from Batra
Hospital on 23.6.1990, Shri R.K. Sharma did not maintain any
contact with the answering respondents till 9.10.1990 barring
one visit to respondent no.2 on 31.8.1990 for the purpose of
obtaining fitness certificate. The answering respondent cannot
be held responsible for any mishap, which might have taken
place when the deceased Shri R.K. Sharma was being treated
elsewhere.
40. It is further submitted that no request was received by
respondent no.1 from AIIMS for supply of the case sheets or
the tumour mass. Had such a request been received the case
sheets would have been sent to AIIMS forthwith. The tumour
mass would also have been sent subject to availability, as
generally the mass is not preserved beyond a period of 4
weeks. As a standard practice, case sheets are never given to
patients as they contain sensitive information which can affect
their psyche.
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41. It is submitted that no malafides can be attributed to the
answering respondents for declining the request of Shri R.K.
Sharma for handing over the entire mass of tumour. Had the
mass been available, it would have definitely been given. As
per standard practice, specimens are discarded after one
month and, therefore, the tumour mass was not available and
as such could not be given to Shri R.K. Sharma. All over the
world the standard practice is to preserve slides and to use
them for review.
42. The Histopathology report from Mool Chand Hospital
recorded the presence of Mitosis, which are indicative of
malignancy. The Histopathology reports from Batra Hospital
and Sir Ganga Ram Hospital clearly indicated the presence of
malignancy, whereas the report from Mool Chand Hospital did
not specifically indicate whether the tumour was malignant or
benign. Rather it was stated in the report that a follow up was
required.
43. It is submitted that pyrogenic meningitis was most
probably the consequence of gluteal abscess for which the
patient had not received any proper treatment in the
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proceeding weeks. It was only when the patient was in a
critical condition that he was brought to Batra Hospital.
However, at that stage the disease of the patient was too far
advanced.
44. It is denied that pyrogenic Meningitis “is swelling in the
brain due to the spoiled surgery and the unhealed wounds
inside caused by the repeated insertions of tubes introducing
infections.” It is denied that surgery was spoiled at Batra
Hospital. Further when the deceased Shri R.K. Sharma was
discharged, all his wounds had healed. Pyrogenic Meningitis is
not swelling of the brain but inflammation of the covering of
the brain. It could not have been the consequence of the
surgery or the pancreatic abscess.
45. In the discharge summary prepared initially it was
recorded specifically that the adrenal mass was malignant and
that the patient should be started on Mitotane at the earliest
after the period of recovery from the operation. However, the
appellants had requested respondent no.2 to delete all
references about cancer from the discharge slip as her
husband was likely to read the same. She apprehended that
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in such an event her husband would become mentally
disturbed. Having regard to the apprehension expressed by
the appellant no.1, Smt. Kusum Sharma, respondent no.2
prepared a fresh discharge summary which did not contain
any reference to cancer. The diagnosis of cancer was not an
afterthought. The diagnosis of cancer was a considered one
after two histopathological reports were received. It is however
denied that the patient was told that he was suffering from
cancer.
46. It is also denied that Dr. Kapil Kumar lacks experience.
On the contrary, Dr. Kapil Kumar has impressive credentials
and he had undertaken training in the well known Tata
Cancer Hospital at Mumbai and he had adequate experience
in handling such operations.
47. The learned counsel appearing for the appellants placed
reliance on Spring Meadows Hospital & Another v. Harjot
Ahluwalia through K.S. Ahluwalia & Another (1998) 4
SCC 39 and Dr. Laxman Balkrishna Joshi v. Dr. Trimbak
Bapu Godbole & Anr. AIR 1969 SC 128. According to
respondent no.1, these cases have no application to the
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present case. The facts in these cases are entirely different
and the law of negligence has to be applied according to the
facts of the case.
48. According to Halsbury’s Laws of England Ed.4 Vol.26
pages 17-18, the definition of Negligence is as under:-
“22. Negligence : Duties owed to patient. A person
who holds himself out as ready to give medical (a)
advice or treatment impliedly undertakes that he is
possessed of skill and knowledge for the purpose.
Such a person, whether he is a registered medical
practitioner or not, who is consulted by a patient,
owes him certain duties, namely, a duty of care in
deciding whether to undertake the case: a duty of
care in deciding what treatment to give; and a duty
of care in his administration of that treatment (b) A
breach of any of these duties will support an action
for negligence by the patient (c).”
49. In a celebrated and oftenly cited judgment in Bolam v.
Friern Hospital Management Committee (1957) I WLR 582 :
(1957) 2 All ER 118 (Queen’s Bench Division – Lord Justice
McNair observed.
“(i) a doctor is not negligent, if he is acting in
accordance with a practice accepted as proper by a
reasonable body of medical men skilled in that
particular art, merely because there is a body of
such opinion that takes a contrary view.
The direction that, where there are two different
schools of medical practice, both having recognition
among practitioners, it is not negligent for a
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practitioner to follow one in preference to the other
accords also with American law; See 70 Corpus
Juris Secundum (1951) 952, 953, para 44.
Moreover, it seems that by American law a failure to
warn the patient of dangers of treatment is not, of
itself, negligence ibid. 971, para 48).
Lord Justice McNair also observed : Before I turn
that, I must explain what in law we mean by
“negligence”. In the ordinary case which does not
involve any special skill, negligence in law means
this : some failure to do some act which a
reasonable man in the circumstances would do, or
doing some act which a reasonable man in the
circumstances would not do; and if that failure or
doing of that act results in injury, then there is a
cause of action. How do you test whether this act
or failure is negligent? In an ordinary case, it is
generally said, that you judge that by the action of
the man in the street. He is the ordinary man. In
one case it has been said that you judge it by the
conduct of the man on the top of a Clapham
omnibus. He is the ordinary man. But where you
get a situation which involves the use of some
special skill or competence, then the test whether
there has been negligence or not is not the test of
the man on the top of a Claphm omnibus,
becausehe has not got this man exercising and
professing to have that special skill. A man need
not possess the highest expert skill at the risk of
being found negligent. It is well-established law
that it is sufficient if her exercises the ordinary skill
of an ordinary competent man exercising that
particular art.”
50. Medical science has conferred great benefits on mankind,
but these benefits are attended by considerable risks. Every
surgical operation is attended by risks. We cannot take the
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benefits without taking risks. Every advancement in technique
is also attended by risks.
51. In Roe and Woolley v. Minister of Health (1954) 2 QB
66, Lord Justice Denning said : ‘It is so easy to be wise after
the event and to condemn as negligence that which was only a
misadventure. We ought to be on our guard against it,
especially in cases against hospitals and doctors. Medical
science has conferred great benefits on mankind but these
benefits are attended by unavoidable risks. Every surgical
operation is attended by risks. We cannot take the benefits
without taking the risks. Every advance in technique is also
attended by risks. Doctors, like the rest of us, have to learn
by experience; and experience often teaches in a hard way.”
52. It was also observed in the same case that “We must not
look at the 1947 accident with 1954 spectacles:”. “But we
should be doing a disservice to the community at large if we
were to impose liability on hospitals and doctors for everything
that happens to go wrong. Doctors would be led to think more
of their own safety than of the good of their patients. Initiative
would be stifled and confidence shaken. A proper sense of
26
proportion requires us to have regard to the conditions in
which hospitals and doctors have to work. We must insist on
due care for the patient at every point, but we must not
condemn as negligence that which is only a misadventure.
53. In Whitehouse v. Jordon & Another (1981) 1 All ER
267 House of Lords per Lord Edmund-Davies, Lord Fraser and
Lord Russell:
“The test whether a surgeon has been negligent is
whether he has failed to measure up in any respect,
whether in clinical judgment or otherwise, to the
standard of the ordinary skilled surgeon exercising
and professing to have the special skill of a surgeon
(dictum of McNair Jo. In Bolam v. Friern Hospital
Management Committee (1957) 2 All ER 118 at
121).
54. In Chin Keow v. Government of Malaysia & Anr.
(1967) WLR 813: the Privy Council applied these words of
McNair J in Bolam v. Friern Hospital Management Committee :
“……….where you get a situation which involves the
use of some special skill or competence, then the
test as to whether there has been negligence or not
is not the test of the man on the top of a Clapham
omnibus because he has not got this special skill.
The test is the standard of the ordinary skilled man
exercising and professing to have that special skill.”
27
55. This court in the case of State of Haryana v. Smt.
Santra (2000) 5 SCC 182 in the matter of negligence relied
upon the case of Bolam v. Friern Hospital Management
Committee (supra) and on Whitehouse v. Jordan & Another
(supra) .
56. In Poonam Verma v. Ashwin Patel & Ors . (1996) 4 SCC
332 where the question of medical negligence was considered
in the context of treatment of a patient, it was observed as
under:-
“40. Negligence has many manifestations – it may
be active negligence, collateral negligence,
comparative negligence, concurrent negligence,
continued negligence, criminal negligence, gross
negligence, hazardous negligence, active and
passive negligence, wilful or reckless negligence or
Negligence per se.”
57. In the instant case, Dr. Kapil Kumar, respondent no.3
who performed the operation had reasonable degree of skill
and knowledge. According to the findings of the National
Commission, he cannot be held guilty of negligence by any
stretch of imagination.
58. Negligence per-se is defined in Black’s Law Dictionary as
under:-
28
Negligence per-se : - Conduct, whether of action or
omission, which may be declared and treated as
negligence without any argument or proof as to the
particular surrounding circumstances, either
because it is in violation of a statute or valid
municipal ordinance, or because it is so palpably
opposed to the dictates of common prudence that it
can be said without hesitation or doubt that no
careful person would have been guilty of it. As a
general rule, the violation of a public duty, enjoined
by law for the protection of person or property, so
constitutes.”
59. In Bolam v. Friern Hospital Management Committee
(supra) , Lord McNair said : “……….I myself would prefer to put
it this way : 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 in that particular art”. In the
instant case, expert opinion is in favour of the procedure
adopted by Opposite Party No.3 at the time of Surgery on
2.4.90.
60. The test is the standard of ordinary skilled man
exercising and professing to have that special skill.
61. In Roe and Woolley (supra) Lord Denning said:
“We should be doing a dis-service to the community
at large if we were to impose liability on Hospitals
and Doctors for everything that happens to go
wrong”.
29
62. Other rulings and judgments also hold and support this
view. It is on these judgments that the Supreme Court has
relied to determine negligence or otherwise.
63. Judgment in the case of State of Haryana (supra) in the
context of ‘Negligence per se’ , is not applicable in the instant
case, as herein, there was no violation of public duty enjoined
by law. The term 'negligence' is used for the purpose of
fastening the defendant with liability under the Civil Law and,
at times, under the Criminal Law. It is contended on behalf of
the respondents that in both the jurisdictions, negligence is
negligence, and jurisprudentially no distinction can be drawn
between negligence under civil law and negligence under
criminal law.
64. In R. v. Lawrence , [1981] 1 All ER 974 (HL), Lord
Diplock spoke for a Bench of five judges and the other Law
Lords agreed with him. He reiterated his opinion in R. v.
Caldwell 1981(1) All ER 961 (HL) and dealt with the concept
of recklessness as constituting mens rea in criminal law. His
Lordship warded against adopting the simplistic approach of
30
treating all problems of criminal liability as soluble by
classifying the test of liability as being "subjective" or
"objective", and said "Recklessness on the part of the doer of
an act does presuppose that there is something in the
circumstances that would have drawn the attention of an
ordinary prudent individual to the possibility that his act was
capable of causing the kind of serious harmful consequences
that the section which creates the offence was intended to
prevent, and that the risk of those harmful consequences
occurring was not so slight that an ordinary prudent
individual would feel justified in treating them as negligible. It
is only when this is so that the doer of the act is acting
'recklessly' if, before doing the act, he either fails to give any
thought to the possibility of there being any such risk or,
having recognized that there was such risk, he nevertheless
goes on to do it."
65. We are here concerned with the criminal negligence. We
have to find out that the rashness was of such a degree as to
amount to taking a hazard knowing that the hazard was of
such a degree that injury was most likely imminent. The
element of criminality is introduced by the accused having run
31
the risk of doing such an act with recklessness and
indifference to the consequences.
66. Lord Atkin in his speech in Andrews v. Director of
Public Prosecutions , [1937] A.C. 576, stated, "Simple lack of
care -- such as will constitute civil liability is not enough; for
purposes of the criminal law there are degrees of negligence;
and a very high degree of negligence is required to be proved
before the felony is established." Thus, a clear distinction
exists between "simple lack of care" incurring civil liability and
"very high degree of negligence" which is required in criminal
cases. Lord Porter said in his speech in the same case -- "A
higher degree of negligence has always been demanded in
order to establish a criminal offence than is sufficient to create
th
civil liability. (Charlesworth & Percy on Negligence (10 Edn.,
2001) Para 1.13).
67. The aforementioned statement of law in Andrews’s case
(supra) has been noted for approval by this court in Syad
Akbar v. State of Karnataka (1980) 1 SCC 30. This court
has dealt with and pointed out with reasons the distinction
between negligence in civil law and in criminal law. The court
32
opined that there is a marked difference as to the effect of
evidence, viz. the proof, in civil and criminal proceedings. In
civil proceedings, a mere preponderance of probability is
sufficient, and the defendant is not necessarily entitled to the
benefit of every reasonable doubt; but in criminal proceedings,
the persuasion of guilt must amount to such a moral certainty
as convinces the mind of the Court, as a reasonable man,
beyond all reasonable doubt. Where 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.
68. A three-Judge Bench of this court in Bhalchandra alias
Bapu & Another v. State of Maharashtra AIR 1968 SC
1319 has held that while negligence is an omission to do
something which a reasonable man, guided upon those
considerations which ordinarily regulate the conduct of
human affairs, would do, or doing something which a prudent
and reasonable man would not do; criminal negligence is the
gross and culpable neglect or failure to exercise that
reasonable and proper care and precaution to guard against
injury either to the public generally or to an individual in
33
particular, which having regard to all the circumstances out of
which the charge has arisen, it was the imperative duty of the
accused person to have adopted.
69. This court in a landmark judgment in Jacob Mathew v.
State of Punjab & Another (2005) 6 SCC 1 while dealing
with the case of negligence by professionals also gave
illustration of legal profession. The court observed as under:-
“18. In the law of negligence, professionals such as
lawyers, doctors, architects and others are included
in the category of persons professing some special
skill or skilled persons generally. Any task which is
required to be performed with a special skill would
generally be admitted or undertaken to be
performed only if the person possesses the requisite
skill for performing that task. Any reasonable man
entering into a profession which requires a
particular level of learning to be called a
professional of that branch, impliedly assures the
person dealing with him that the skill which he
professes to possess shall be exercised and
exercised with reasonable degree of care and
caution. He does not assure his client of the result.
A lawyer does not tell his client that the client shall
win the case in all circumstances. A physician
would not assure the patient of full recovery in
every case. A surgeon cannot and does not
guarantee that the result of surgery would
invariably be beneficial, much less to the extent of
100% for the person operated on. The only
assurance which such a professional can give or
can be understood to have given by implication is
that he is possessed of the requisite skill in that
branch of profession which he is practising and
34
while undertaking the performance of the task
entrusted to him he would be exercising his skill
with reasonable competence. This is all what the
person approaching the professional can expect.
Judged by this standard, a professional may be held
liable for negligence on one of two findings: either he
was not possessed of the requisite skill which he
professed to have possessed, or, he did not exercise,
with reasonable competence in the given case, the
skill which he did possess. The standard to be
applied for judging, whether the person charged has
been negligent or not, would be that of an ordinary
competent person exercising ordinary skill in that
profession. It is not necessary for every professional
to possess the highest level of expertise in that
branch which he practices. In Michael Hyde and
Associates v. J.D. Williams & Co. Ltd. , [2001]
P.N.L.R. 233, CA, Sedley L.J. said that where a
profession embraces a range of views as to what is
an acceptable standard of conduct, the competence
of the defendant is to be judged by the lowest
standard that would be regarded as acceptable.
(Charles worth & Percy, ibid, Para 8.03)”
70. In Jacob Mathew’s case , this court heavily relied on the
case of Bolam (supra). The court referred to the opinion of
McNair, J. defining negligence as under:-
"19.Where you get a situation which involves the
use of some special skill or competence, then the
test as to whether there has been negligence or not
is not the test of the man on the top of a Clapham
omnibus, because he has not got this special skill.
The test is the standard of the ordinary skilled man
exercising and professing to have that special skill .
. . A man need not possess the highest expert skill;
it is well established law that it is sufficient if he
35
exercises the ordinary skill of an ordinary
competent man exercising that particular art."
71. In Eckersley v. Binnie , Bingham, L.J. summarized the
Bolam test in the following words :-
"From these general statements it follows that a
professional man should command the corpus of
knowledge which forms part of the professional
equipment of the ordinary member of his profession.
He should not lag behind other ordinary assiduous
and intelligent members of his profession in
knowledge of new advances, discoveries and
developments in his field. He should have such an
awareness as an ordinarily competent practitioner
would have of the deficiencies in his knowledge and
the limitations on his skill. He 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 no less expertise, skill and care than
other ordinarily competent members of his
profession would bring, but need bring no more.
The standard is that of the reasonable average. The
law does not require of a professional man that he
be a paragon combining the qualities of polymath
and prophet." (Charles worth & Percy, ibid, Para
8.04)
72. The degree of skill and care required by a medical
practitioner is so stated in Halsbury's Laws of England (Fourth
Edition, Vol.30, Para 35):-
36
"The practitioner must bring to his task 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, and a person is not liable in negligence
because someone else of greater skill and knowledge
would have prescribed different treatment or
operated in a different way; nor is he 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, even
though a body of adverse opinion also existed
among medical men.
Deviation from normal practice is not necessarily
evidence of negligence. To establish liability on that
basis it must be shown (1) that there is a usual and
normal practice; (2) that the defendant has not
adopted it; and (3) that the course in fact adopted is
one no professional man of ordinary skill would
have taken had he been acting with ordinary care."
73. In Hucks v. Cole & Anr. (1968) 118 New LJ 469, Lord
Denning speaking for the court observed as under:-
“a medical practitioner was not to be held liable
simply because things went wrong from mischance
or misadventure or through an error of judgment in
choosing one reasonable course of treatment in
preference of another. A medical practitioner would
be liable only where his conduct fell below that of
the standards of a reasonably competent
practitioner in his field.”
37
74. In another leading case Maynard v. West Midlands
Regional Health Authority the words of Lord President
(Clyde) in Hunter v. Hanley 1955 SLT 213 were referred to
and quoted as under:-
“In the realm of diagnosis and treatment there is
ample scope for genuine difference of opinion and
one man clearly is not negligent merely because his
conclusion differs from that of other professional
men...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...".
The court per Lord Scarman added as under:-
"A doctor who professes to exercise a special skill
must exercise the ordinary skill of his specialty.
Differences of opinion and practice exist, and will
always exist, in the medical as in other professions.
There is seldom any one answer exclusive of all
others to problems of professional judgment. A
court may prefer one body of opinion to the other,
but that is no basis for a conclusion of negligence."
75. The ratio of Bolam’s case is that it is enough for the
defendant to show that the standard of care and the skill
attained was that of the ordinary competent medical
practitioner exercising an ordinary degree of professional skill.
The fact that the respondent charged with negligence acted in
accordance with the general and approved practice is enough
38
to clear him of the charge. Two things are pertinent to be
noted. Firstly, the standard of care, when assessing the
practice as adopted, is judged in the light of knowledge
available at the time (of the incident), and not at the date of
trial. Secondly, when the charge of negligence arises out of
failure to use some particular equipment, the charge would fail
if the equipment was not generally available at that point of
time on which it is suggested as should have been used.
76. A mere deviation from normal professional practice is not
necessarily evidence of negligence.
77. In Jacob Mathew’s case (supra) this court observed that
higher the acuteness in emergency and higher the
complication, more are the chances of error of judgment. The
court further observed as under:-
“25……At times, the professional is confronted with
making a choice between the devil and the deep sea
and he has to choose the lesser evil. 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. Which course is more appropriate to
follow, would depend on the facts and
circumstances of a given case. The usual practice
39
prevalent nowadays is to obtain the consent of the
patient or of the person in-charge of the patient if
the patient is not be in a position to give consent
before adopting a given procedure. So long as it can
be found that the procedure which was in fact
adopted was one which was acceptable to medical
science as on that date, the medical practitioner
cannot be held negligent merely because he chose to
follow one procedure and not another and the result
was a failure.”
78. A doctor faced with an emergency ordinarily tries his best
to redeem the patient out of his suffering. He does not gain
anything by acting with negligence or by omitting to do an act.
Obviously, therefore, it will be for the complainant to clearly
make out a case of negligence before a medical practitioner is
charged with or proceeded against criminally. This court in
Jacob Mathew’s case very aptly observed that a surgeon with
shaky hands under fear of legal action cannot perform a
successful operation and a quivering physician cannot
administer the end-dose of medicine to his patient.
79. Doctors in complicated cases have to take chance even if
the rate of survival is low.
80. The professional should be held liable for his act or
omission, if negligent, is to make life safer and to eliminate the
40
possibility of recurrence of negligence in future. But, at the
same time courts have to be extremely careful to ensure that
unnecessarily professionals are not harassed and they will not
be able to carry out their professional duties without fear.
81. It is a matter of common knowledge that after happening
of some unfortunate event, there is a marked tendency to look
for a human factor to blame for an untoward event, a tendency
which is closely linked with the desire to punish. Things have
gone wrong and, therefore, somebody must be found to answer
for it. A professional deserves total protection. The Indian
Penal Code has taken care to ensure that people who act in
good faith should not be punished. Sections 88, 92 and 370
of the Indian Penal Code give adequate protection to the
professional and particularly medical professionals.
82. The Privy Council in John Oni Akerele v. The King AIR
1943 PC 72 dealt with a case where a doctor was accused of
manslaughter, reckless and negligent act and he was
convicted. His conviction was set aside by the House of Lords
and it was held thus:-
41
(i) That a doctor is not criminally responsible for a
patient's death unless his negligence or
incompetence went beyond a mere matter of
compensation between subjects and showed such
disregard for life and safety of others as to amount
to a crime against the State.;
(ii) That the degree of negligence required is that it
should be gross, and that neither a jury nor a court
can transform negligence of a lesser degree into
gross negligence merely by giving it that
appellation.... There is a difference in kind between
the negligence which gives a right to compensation
and the negligence which is a crime.
(iii) It is impossible to define culpable or criminal
negligence, and it is not possible to make the
distinction between actionable negligence and
criminal negligence intelligible, except by means of
illustrations drawn from actual judicial
opinion....The most favourable view of the conduct
of an accused medical man has to be taken, for it
would be most fatal to the efficiency of the medical
profession if no one could administer medicine
without a halter round his neck."
(emphasis supplied)
83. In the said case, their Lordships refused to accept the
view that criminal negligence was proved merely because a
number of persons were made gravely ill after receiving an
injection of Sobita from the appellant coupled with a finding
that a high degree of care was not exercised. Their Lordships
42
also refused to agree with the thought that merely because too
strong a mixture was dispensed once and a number of persons
were made gravely ill, a criminal degree of negligence was
proved.
84. This court in Kurban Hussein Mohammedali
Rangawalla v. State of Maharashtra (1965) 2 SCR 622,
while dealing with Section 304A of IPC, the following statement
of law by Sir Lawrence Jenkins in Emperor v. Omkar
Rampratap (1902) 4 Bom LR 679, was cited with approval:-
"To impose criminal liability under Section 304A ,
Indian Penal Code, it is necessary that the death
should have been the direct result of a rash and
negligent act of the accused, and that act must be
the proximate and efficient cause without the
intervention of another's negligence. It must be the
causa causans; it is not enough that it may have
been the causa sine qua non ."
85. In Dr. Laxman Balkrishna Joshi (supra), the court
observed that the practitioner must bring to his task 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
43
requires. The doctor no doubt has a discretion in choosing
treatment which he proposes to give to the patient and such
discretion is relatively ampler in cases of emergency. In this
case, the death of patient was caused due to shock resulting
from reduction of the fracture attempted by doctor without
taking the elementary caution of giving anaesthetic to the
patient. The doctor was held guilty of negligence and liability
for damages in civil law. We hasten to add that criminal
negligence or liability under criminal law was not an issue
before the Court - as it did not arise and hence was not
considered.
86. In a significant judgment in Indian Medical
Association v. V.P. Shantha & Others (1995) 6 SCC 651, a
three-Judge Bench of this Court held that service rendered to
a patient by a medical practitioner (except where the doctor
renders service free of charge to every patient or under a
contract of personal service), by way of consultation, diagnosis
and treatment, both medicinal and surgical, would fall within
the ambit of ‘service’ as defined in Section 2(1)(o) of the
Consumer Protection Act, 1986. Deficiency in service has to
44
be judged by applying the test of reasonable skill and care
which is applicable in action for damages for negligence.
87. In the said case, the court also observed as under:-
"22. In the matter of professional liability
professions differ from occupations for the reason
that professions operate in spheres where success
cannot be achieved in every case and very often
success or failure depends upon factors beyond the
professional man's control. In devising a rational
approach to professional liability which must
provide proper protection to the consumer while
allowing for the factors mentioned above, the
approach of the Courts is to require that
professional men should possess a certain
minimum degree of competence and that they
should exercise reasonable care in the discharge of
their duties. In general, a professional man owes to
his client a duty in tort as well as in contract to
exercise reasonable care in giving advice or
performing services. (see: Jackson and Powell on
rd
Professional Negligence, 3 Edn. paras 1-04,1-05
and 1-56).
88. In Achutrao Haribhau Khodwa & Others v. State of
Maharashtra & Others (1996) 2 SCC 634, this Court noticed
that in the very nature of medical profession, skills differs
from doctor to doctor and more than one alternative course of
treatment are available, all admissible. Negligence cannot be
attributed to a doctor so long as he is performing his duties to
the best of his ability and with due care and caution. Merely
45
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.
89. In Spring Meadows Hospital & Another (supra), the
court observed that an error of judgment is not necessarily
negligence. In Whitehouse (supra) the court observed as
under:-
"The true position is that an error of judgment may,
or may not, be negligent, it depends on the nature
of the error. If it is one that would not have been
made by a reasonably competent professional man
professing to have the standard and type of skill
that the defendant holds himself out as having, and
acting with ordinary care, then it is negligence. If,
on the other hand, it is an error that such a man,
acting with ordinary care, might have made, then it
is not negligence."
90. In Jacob Mathew’s case (supra) , conclusions summed
up by the court were very apt and some portions of which are
reproduced hereunder:-
(1) Negligence is the breach of a duty caused by
omission to do something which a reasonable
man guided by those considerations which
46
ordinarily regulate the conduct of human
affairs would do, or doing something which a
prudent and reasonable man would not do.
The definition of negligence as given in Law of
Torts, Ratanlal & Dhirajlal (edited by Justice
G.P. Singh), referred to hereinabove, holds
good. Negligence becomes actionable on
account of injury resulting from the act or
omission amounting to negligence attributable
to the person sued. The essential components
of negligence are three: 'duty', 'breach' and
'resulting damage'.
(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
47
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.
(3) The standard to be applied for judging,
whether the person charged has been negligent
or not, would be that of an ordinary competent
person exercising ordinary skill in that
profession. It is not possible for every
professional to possess the highest level of
expertise or skills in that branch which he
practices. A highly skilled professional may be
possessed of better qualities, but that cannot
be made the basis or the yardstick for judging
the performance of the professional proceeded
against on indictment of negligence.
48
91. To prosecute a medical professional for negligence under
criminal law it must be shown that the accused did something
or failed to do something which in the given facts and
circumstances no medical professional in his ordinary senses
and prudence would have done or failed to do. The hazard
taken by the accused doctor should be of such a nature that
the injury which resulted was most likely imminent.
92. In a relatively recent case in C.P. Sreekumar (Dr.), MS
(Ortho) v. S. Ramanujam (2009) 7 SCC 130 this court had an
occasion to deal with the case of medical negligence in a case
in which the respondent was hit by a motor-cycle while going
on his by-cycle sustained a hairline fracture of the neck of the
right femur.
93. Pre-operative evaluation was made and the appellant Dr.
Sreekumar, on considering the various options available,
decided to perform a hemiarthroplasty instead of going in for
the internal fixation procedure. The respondent consented for
the choice of surgery after the various options have been
explained to him. The surgery was performed the next day.
The respondent filed a complaint against the appellant for
49
medical negligence for not opting internal fixation procedure.
This court held that the appellant’s decision for choosing
hemiarthroplasty with respect to a patient of 42 years of age
was not so palpably erroneous or unacceptable as to dub it as
a case of professional negligence.
94. On scrutiny of the leading cases of medical negligence
both in our country and other countries specially United
Kingdom, some basic principles emerge in dealing with the
cases of medical negligence. While deciding whether the
medical professional is guilty of medical negligence following
well known principles must be kept in view:-
I. Negligence is the breach of a duty exercised by
omission to do something which a reasonable
man, guided by those considerations which
ordinarily regulate the conduct of human
affairs, would do, or doing something which a
prudent and reasonable man would not do.
II. Negligence is an essential ingredient of the
offence. The negligence to be established by
the prosecution must be culpable or gross and
50
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.
51
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
52
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
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patients have to be paramount for the medical
professionals.
95. In our considered view, the aforementioned principles
must be kept in view while deciding the cases of medical
negligence. We should not be understood to have held that
doctors can never be prosecuted for medical negligence. As
long as the doctors have performed their duties and exercised
an ordinary degree of professional skill and competence, they
cannot be held guilty of medical negligence. It is imperative
that the doctors must be able to perform their professional
duties with free mind.
96. When we apply well settled principles enumerated in the
preceding paragraphs in dealing with cases of medical
negligence, the conclusion becomes irresistible that the
appellants have failed to make out any case of medical
negligence against the respondents.
97. The National Commission was justified in dismissing the
complaint of the appellants. No interference is called for. The
appeal being devoid of any merit is dismissed. In view of the
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peculiar facts and circumstances of this case the parties are
directed to bear their own costs.
…….……………………..
J.
(Dalveer Bhandari)
…….…………………….. J.
(Harjit Singh Bedi)
New Delhi;
February 10, 2010
55