Ashok Vs. Lakshmi Hospital & Ors  Insc 505 (25 September 2001)
Babu & K.G. Balakrishnan Rajendra Babu, J. :
J U D
G M E N T
This is an unfortunate case of a woman losing her uterus vital organ of
regeneration consequent upon an ectopic pregnancy in the cervical canal, which
reason is seriously challenged, but denied equally seriously by the other side.
before us filed a complaint before the National Consumer Disputes Redressal
Commission, New Delhi [hereinafter referred to the
Commission] for compensation on the ground of negligence on the part of
respondents in the matter of removal of her uterus. The Commission held that
the appellant has not proved negligence on the part of the respondents and
dismissed the claim. Hence, this first appeal under Section 21 of the Consumer
Protection Act, 1986. The appellant claimed compensation in a sum of Rs. 15 lakhs
for loss of uterus with no chance of future pregnancy and mental disturbance or
depression leading to disharmony and tension in the family.
Facts leading to the said complaint are as follows:
appellant gave birth to a son on 6.6.1989 after caesarean operation. On or
about 3.2.1990 having suspected that she was pregnant again, she and her
husband went to Lakshmi Hospital for consultation.
appellant was examined by Dr. Santha Warriar, respondent No. 2.
examination, respondent No. 2 informed the appellant that she was pregnant and
it was decided to terminate the pregnancy for which 10.2.1990 was fixed. On
9.2.1990 lamineria tent was inserted when the appellant went to the Hospital.
On 10.2.1990 the appellant, her husband and her sister-in-law went to the
Hospital at about 8.30
Warriar, respondent No. 2, took the appellant to the labour room. At about 10 Oclock
Dr. Somalatha, respondent No. 3, informed the appellants husband that the
appellant was bleeding profusely and therefore, they have decided to conduct an
operation. She also informed the appellants husband that the appellant was in a
very serious condition and it was better to inform her near relatives. At about
4 Oclock the operation was over and the appellants relatives were informed that
she was better but under sedation. Dr. Santha Warriar informed the appellants
husband that it was a case of Cervical Pregnancy and her uterus had been
removed. The appellant was discharged from the Hospital on 22.2.1990.
The appellant complained that respondents had not acted with due care and
caution required of medical professionals in diagnosing the problem, in taking
care to prevent the problem, in the performance of their duties and lack of
necessary facilities and infrastructure at the Hospital. The appellant pleaded
that the Dilatation & Currettage (D & C) procedure was unnecessarily
done on her which led to other problems resulting in loss of uterus at a very
This complaint is resisted by the respondents by contending that they have not
been negligent to any extent either in diagnosing the appellants condition or in
administering the required treatment; that the appellant herself approached the
respondents for termination of pregnancy because she has a small son aged eight
months who was born after a caesarean section; that the appellant was having a
Cervical Pregnancy extending to the lower segment of her uterus which is very
complicated and rare type of pregnancy which cannot be diagnosed by clinical or
vaginal examination particularly in the early weeks of pregnancy; that
Hysterectomy is a recommended and established procedure for tackling excessive
bleeding in the case of Cervical Pregnancy and in the case of the appellant,
Hysterectomy had to be resorted to save her life when excessive bleeding
started; that such bleeding was not on account of any negligence in the
diagnosis or on account of any faulty procedure adopted in the course of
The Commission analysed the pleadings and evidence placed before it with
reference to various decisions on the matter that were cited in the course of
the arguments. The Commission found that the allegation of the appellant that
she had gone to the Lakshmi Hospital, respondent No. 1, only to consult about
the suspected pregnancy is false because there were some notings in which it
had been found that the appellant had got her pregnancy test done in some other
private clinic which showed it was a positive one. The Commission concluded
that the appellant must have consulted the second respondent about termination
of the pregnancy as her son by the previous pregnancy was only about 8 months
old; that she was breast feeding him; and that she had been advised to meet the
doctor on 10.2.1990. It was not clear as to why the appellant went to the
Hospital on 9.2.1990 but the notings in the documents produced before the
Commission indicated that 9.2.1990 was fixed for Tent Insertion. In the notings
dated 3.2.1990 facts have been noted that the earlier delivery was by a
caesarean section and Medical Termination of Pregnancy (hereinafter abbreviated
as MTP] was fixed for 10.2.1990 and there were notings about clinical and per
vagina examination made. Therefore, the Commission concluded that the
allegation that the second respondent without proper examination presumed that
it was a case of termination of pregnancy is incorrect. The appellant had
produced certain documents before the Commission which should have been
normally in the custody of the respondents and such notings made in the records
are not handed over to patients. Therefore, the appellant or her advisors must
have managed to remove some of the papers from her case file. The Commission
also noticed that respondent Nos. 2 to 4 appeared in the witness box and they
were subjected to lengthy severe cross-examination. Neither the appellant nor
her husband appeared in the witness box to give any testimony in support of
their version put forth in the complaint. The Commission did not attach any
importance to the non-examination of Dr. Mohan, respondent No. 5, who was an
Anesthesiologist in the case, who had also made notings in the records of the
hospital on which reliance was placed by the appellant in support of her case
that she had a normal pregnancy.
After examining the evidence and text books with reference to the details of
the operation set out in the additional counter affidavit dated 3.2.1992
submitted by respondent No. 2, the Commission further held that in the
circumstances arising at the time of laporotomy, hysterectomy had to be
performed upon the appellant and not on account of any negligence in the
diagnosis and treatment and in case of emergency the operating doctor has wider
discretion about the treatment. On that basis, the Commission came to the
conclusion that the respondent acted with due care, circumspection and
professional skill and competence and there was no negligence of any kind on
their part in any manner.
Before us, the learned counsel for the appellant addressed two lines of
argument firstly, that the appellant had a normal pregnancy and MTP was
unnecessary and secondly, without proper diagnosis by ultrasonogram, the
respondents conducted MTP, which in fact was done negligently leading to
excessive bleeding necessitating hysterectomy but if proper care had been taken
this extreme step of removal of uterus could have been avoided. His further
complaint is that the products of conception not sent for histopathological
examination to confirm the diagnosis and for future follow up.
3.2.1990, the appellant had approached respondent No. 2 with a positive report
about her pregnancy and to consult about termination of the same. After having
conducted clinical and per vaginal examination respondent No. 2 found that the
pregnancy of the appellant was 6 to 8 weeks old. In this context, reference was
also made to article by M.Y.Rawal on Role of USG in MTP and another article
about Ultrasonogram in Obstetrics, which indicates that the role of Ultrasonogram
is useful in confirming or excluding an intrauterine pregnancy but it was
noticed that Ultrasound is associated with significant false positive and false
negative data in diagnosing ectopic pregnancy. RW 1, Dr. Rajan had also stated
that test of Ultrasonogram is not usually carried out for termination of
pregnancy as this test unnecessarily burdens the patient with heavy costs. He
also stated that Ultrasound sometimes has harmful effects on the child also.
The appellant did not have any symptom to suspect that she was having an ectopic
pregnancy and that too in cervix. He deposed that cervical pregnancy in early
stages is not easy to be diagnosed.
learned counsel for the respondents submitted that what had been done in the
case of the appellant by the respondents was the existing practice and,
therefore, they cannot be held to be liable being negligent for not doing
Ultrasound test; that there was no general practice anywhere in Kerala to do
Ultrasound in MTP case; that normal procedure was adopted according to the
guidelines issued by the Central Government. He, therefore, submitted that
there is absolutely no negligence on the part of the respondents at all and the
finding recorded by the Commission is justified and that all the findings
recorded by the Commission are completely against the appellant.
The stand of the respondents is that it is impossible by any kind of test to
detect the Cervical Pregnancy caused by the fertilised ovum getting attached to
some point in the cervical canal and start growing from there and ectopic
pregnancy is at a site that is not designed either to receive the concepts or
to permit it to develop.
Principles and Practice of Ultrasonography in Obstetrics and Gynecology at page
412, it is noticed that the rarest types of ectopic pregnancy are cervical and
ovarian and because of their rarity these types of ectopic pregnancy are
usually not prospectively diagnosed. In Gynecology by David N. Danforth dealing
with this topic, it is stated therein that in about 5 to 10% the diagnosis can
be made readily if the uterine cavity is empty and in other cases a cystic or
complex mass is noted in one of the adenexal areas or in the culdesac. None of
these indications were present in the appellants case. It is stated that in
majority of women clinically suspect of having an ectopic pregnancy, however,
the only ultrasonic finding is an empty uterine cavity and in such cases, if
clinical exigencies permit, additional evaluation is necessary as indicated
therein. The recommended use of Ultrasound as an essential adjunct is in
certain cases as indicated therein, but it does not include the detection of ectopic
pregnancies. In Clinical Obstetrics by Mudaliar and Menon, the authors state
that perhaps in certain instances to diagnose ectopic pregnancy and incomplete
abortion and Ultrasound is normally applied above the abdomen and it may now be
designated as Transabdominal sonography. A different type called Trans Vaginal Sonography
is only a recent development, which gives better results in Gynaecology. It is
stated by the respondents that this facility was not available anywhere in Kerala
not even in medical colleges and this is spoken to by the expert witnesses.
Following medical authorities were also cited on behalf of the respondents to
show the characteristics of a cervical pregnancy:
Operative Gynaecology, 6th Edition by Richard F Mattingly, it was observed that
the treatment of cervical pregnancy is surgical and the condition usually
requires an abdominal hysterectomy.
Cervical Pregnancy by Macro Antonio Peloci, Vol. IV, it was noticed that most Obstertricians
would never see a cervical pregnancy and that those who did would wish that
they had not. This statement is nearly as true now as it was then.
longer a cervical pregnancy continues, the greater the depth of penetration and
the degree of erosion and perforation. The pregnancy itself eventually
terminates in one of two ways. Often there is erosion of a large vessel with
consequent bleeding, separation and expulsion of the conceptus through the
the products of conception will repture into the vagine, the parameterium or
the peritonial cavity through the thinning cervical wall.
clinical signs of a cervical gestation generally become evident in the first
weeks of pregnancy and resemble those of a threatened uterine abortion.
However, cervical pregnancy seldom is diagnosed correctly prior to surgery.
This is due in part to the rarity of the condition and to the rather soft
clinical features associated with it especially prior to hemorrhage.
bleeding may be the most reliable way of differentiating a cervical pregnancy
from a threatened uterine abortion. This symptom should also sound a warning
signal to patients who request voluntary termination of what is thought to be a
cervical pregnancies are some times discovered during voluntary termination of
a supposed normal pregnancy. More often spontaneous bloody discharge is what
prompts most of these patients to seek medical attention. In about 50% of the
cases reviewed by Resnick, blood tinged vaginal discharge or irregular bleeding
was present 2 to 4 weeks after the patient missed her first period. Such
bleeding often becomes progressively more severe and can result in more or less
brisk hemorrhage once the ovum begins to separate from the cervical wall or
ruptures through it. Unless the gestation is very early, spontaneous or induced
abortion tends to bring on violent hemorrhage. Attempts at removing the
placenta, which is usually accreta only augments the hemorrhage potential.
blood loss is put at 6.4 units. Cervical pregnancies may also involve signs of
intra peritonial bleeding if the gestation has ruptured through the cervical
wall. However, since the diagnosis is not generally suspected, the origin of
the hemorrhage may not be clear until laportomy.
it was emphasised that the clinical course of patients with cervical pregnancy
can vary from a simple, uncomplicated abortion with minimal bleeding to the
so-called classic presentation of sudden massive hemorrhage, especially during
the extent and significance of bleeding remains somewhat controversial
particularly with respect to diagnosis. Paalman and Mc Elin suggested that
instances of torrential bleeding are probably associated with the cervicoisthmic
variety of placentation, which entails greater involvement.
by Vadid N. Danforth and Orthers therein it is noticed as follows :
pregnancy is a pregnancy implanted outside the uterine cavity, ie., at a site
that is not designed either to receive the conceptus or to permit it to
develop. The most common site is the fallopean tube. Most cases culminate in
disaster of one kind or another, the conceptus is almost invariably lost and
the condition may also be fatal to the mother." The importance of early
surgery has been stressed and it is said that if an operation is to be done it
must be done without delay.
extremely rare form of ectopic pregnancy, cervical pregnancy produces profuse
vaginal bleeding, without associated cramping pain.
attempts can be made to stop the hamerrhage by local removal of the products of
conception, if hemostasis is obtained, this is adequate treatment. Because of
the depth of the trophoblastic invasion, however, major blood vessels are often
involved, and hysterectomy may be necessary.
in his article Endovaginal Sonography in Infertility, Gynecology and
Obstetrics, though acknowledges the usefulness of Trans-Vaginal Sonography
until the introduction of this method the diagnosis precision was questionable.
Therefore, on that basis, no conclusion can be drawn that if the Ultrasound had
not been used in the case of the appellant it can be held that there was
negligence on the part of the respondents. Whatever had been done by the
respondents was part of general practice available in the State of Kerala. Therefore, the contention advanced
on behalf of the appellant to the contrary must be rejected.
In the present case, the appellant did not have any history from which presence
of cervical pregnancy could have been suspected. The appellant had not
complained of any significant bleeding or painless bleeding or bleeding with
pain at any time. In the circumstances, the doctors could not have found that
the appellant had cervical pregnancy and they cannot be held guilty of any
negligence either in respect of diagnosis or in the matter of treatment
administered. Hysterectomy was the only solution on account of profuse bleeding
or severe vaginal or peritoneal bleeding. There was examination and
cross-examination on the question whether it was a case of cervical pregnancy
or a normal pregnancy where peritoneal bleeding was caused by instrumental
perforation. The evidence of Dr. Rajan is that there is clear evidence in the
case that the bleeding by an instrumental perforation can be stopped by a laporotomy
and by suturing the site of the bleeding and that would not be the case in a
cervical pregnancy. Dr. Balachandran, who is acknowledged to be a very high
authority in Kerala and was examined as RW 4, stated that whether perforation
was by an instrument or not can be clearly seen after laportomy and if an
instrument perforates the uterus, it can be stopped by suturing and it may even
stop automatically when the instrument is withdrawn.
main dispute between the parties is that it was a normal pregnancy and not a
Cervical Pregnancy. The contemporaneous record at the time of operation
indicated as follows:- Laporotomy (G.A), i.e., General Anesthesia While doing
the MTP patient started bleeding profusely and signs of internal bleeding was
present. So an exploratory laporotomy was done. There was plenty of blood in
the peritoneal cavity. The bleeding was from the lateral end of the lower
lower segment was opened and the uterine cavity evacuated.
products were actually in the cervical canal perforating the lower segment.
Since the bleeding was not controlled even after evacuation and suturing the
lower segment, total hysterectomy was done. Both tubes and ovaries retained. A
small rent in the bladder was repaired by Dr. C.B.C. Abdomen closed in layers
after perfect haemostasis. 3 units of blood transfused at the time of surgery.
Urine drained by folleys Catheter continously. Urine is clear. Output
learned counsel submitted that the appellant is admittedly a high risk patient
and she had a normal pregnancy at the previous caesarean scar, as noticed by
Dr. Mohan, respondent No. 5, and Dr. Mohan not having been examined due weight
should have been attached to the notings made by him, particularly when he was
one of the persons present in the operation theatre.
argument was based upon the notings made by Dr. Mohan.
notes about diagnosis he had remarked pregnancy at the previous scar and it was
noticed that the PPH means Post Partem Hemorrhage which means following a
delivery. Dr. Somalatha P. Shenoy, respondent No. 3 stated that when the uterus
was open she saw the amniotic sac with a small foetus and Dr. Santha Warriar,
respondent No. 2, evacuated this product the site of implantation was noticed
at the upper cervical canal and at the isthmic area. RW 4, Dr. C. Balachandran,
stated that when the uterus was opened, his attention was drawn by Dr. Santha Warriar
showing him the foetus in a sac with cervionic tissue presenting at the opening
and when the tissue was removed it was noticed to be attached over the anterior
wall of the uterus below the scar extending to the cervix. He also averred that
site of implantation of tissue extended from the scar in the uterus to the
upper part of the cervix and the scar means the scar opened by Dr. Santha Warriar
at the site of the previous scar caused by earlier caesarean section,
therefore, notings made by Dr.
cannot be stated to be inconsistent with the evidence placed before the court.
His examination would not have improved the matters.
assuming that the noting of Dr. Mohan is not entirely in accord with other
evidence, his noting cannot be given undue weight as against overwhelming
evidence of other doctors with contemporaneous record that the pregnancy of the
appellant was ectopic. Hence, the finding of the Commission on this aspect
cannot be assailed at all.
If the appellant had ectopic pregnancy in the cervical canal as stated above,
the only remedy is Hysterectomy in which event, performance of the test of
Ultra sonogram would not have improved the matter at all. At best, Ultra
sonogram would have disclosed that uterus was empty and that fact does not
establish as to where the pregnancy is located. In this background, we consider,
it is futile to indulge in the exercise of study of evidence of doctors and
medical literature on the question or the need to conduct Ultra sonogram test
or the benefits therefrom.
The next allegation regarding negligence on the part of the doctors is that lamineria
tent for dilating cervix was used instead of dilapan and again on this aspect
certain text-books were referred to. In the evidence of Dr. Rajan, RW 1, it was
stated that he was using lamineria tent for dilatation of cervical canal. The
use of lamineria test in dilatation of cervix is one of the accepted standard
procedures and it cannot be stated that the use of that procedure by respondent
No. 2 in respect of appellant constituted a negligent act.
Lengthy arguments have also been advanced before the Commission that after lamineria
tent is inserted on 9.2.1990 the patient was allowed to go away and tent should
not be allowed to remain inside the cervix for more than four hours as by that
time it causes sufficient dilatation. The allegation made is that respondent
No. 2 used Lamineria Tent for dilating cervix instead of dilapan. The evidence
tendered before the Commission by Dr. Rajan and respondent No. 2 was that in Kerala
the commonly used method is dilatation and evacuation or currettage.
the Commission concluded that no complaint could be made to characterise the
act on the part of respondents to be negligent.
reliance on the article of Dr. G.I.Dhall on the subject of Suction Evacuation
and Dilatation & Currettage in First Trimester MTP it was contended that
suction evacuation is a method of choice in dealing with termination of first
trimester pregnancy and this method has replaced Dilatation & Currettage
method. Another article was referred to written by the same author, which
indicated that the most commonly used method of first trimester abortion is
Dilatation & Currettage or more appropriately dilatation, evacuation and currettage.
This is the traditional method of procuring first trimester abortion and has
been largely replaced by suction evacuation. The author does not say that
dilatation and curettage method for purposes of terminating the first trimester
pregnancy is a prohibited one. The evidence tendered by Dr. Rajan, RW 1, and
respondent No. 2 has weighed with the Commission to come to the conclusion that
there is no negligence in the procedure adopted by the respondents. Therefore,
even if there is difference of opinion amongst the experts on the procedure
adopted by a doctor, but a procedure which is commonly in practice in an area
if adopted by a doctor, it cannot be said that there is negligence on his part.
The learned counsel submitted that the services of Dr. Somalatha P. Shenoy,
Assistant Gynecologist, respondent No. 3, was sought for only after
complications started and it was only thereafter when the whole procedure was
over and bleeding could not be stopped and matters reached at point of no
return, as a last resort to save the appellant, Dr. C. Balachandran, Surgeon,
respondent No. 4, was called to save her life.
circumstances are thus sufficient to hold that respondent Nos. 3 and 4 were
The appellant is a high-risk patient is not in dispute. Respondent No. 2
claimed in her counter affidavit as well as in her statement that she had
explained all possible risks and dangers involved to the appellant and her
husband when they came to her on 3.2.1990 and 10.2.1990 was fixed for MTP so as
to give them sufficient time to reflect over the matter about the dangers of
going through for MTP. It is possible for the doctors to have done the MTP or
within a short period after 3.2.1990 and the fact that there was sufficient gap
between the medical examination of the appellant and MTP which is not less than
a week is a circumstance which probalises the respondents version that time was
given to the appellant to reflect over the matter.
Now, we shall turn to the next question raised by the appellant that there has
been negligence in failure to take precautions to prevent accidental injury.
The argument on this aspect is based on the dictum of the direction given to
the jury by McNair J. In Bolam vs. Friem Hospital Management Committee (supra)
which is as under :
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 skilled in that particular art. Putting it the
other way round, a doctor is not negligent, if he is acting in accordance with
such a practice, merely because there is a body of opinion that takes a
contrary view." This is the legal position of the standard of care
required by a doctor. A doctor will not be guilty of negligence if he has acted
in accordance with the practice accepted as proper by a responsible body of
medical men skilled in that particular art and if he has acted in accordance
with such practice merely because there is a body of opinion that takes a
contrary view will not make him liable for negligence.
In the present case, though large amount of medical literature had been placed
and expert evidence had been put forth before the Commission to indicate that
Ultra sonography would not have established ectopic pregnancy, some text books
indicate that it was possible to identify such problem. But when two views even
if possible, the general practice in the area in which the respondents practised
such procedure was not followed and, therefore, no negligence can be attributed
to the respondents on that ground.
argument advanced on behalf of the appellant is that in pregnancy with vaginal
bleeding one must find out a cause of the bleeding before doing any procedure
especially D&C, which may carry a risk of uterine injury of perforation.
There is no material placed before the Court or foundation laid in evidence to
show that there was vaginal bleeding in the present case before the proceedings
commenced so as to attract the observation made in Atlas on Obstetric
Complications by F.H. Falls & C.S. Holt.
The Hospital, respondent No. 1, is alleged to have committed breach of its
primary duties, as noticed earlier, for
supervision of physician;
to provide ancillary services to the appellant.
4 of the Medical Termination of Pregnancy Act, 1971 provides that it is
incumbent on the part of respondent No. 2 to obtain duly filled consent forms
and respondent No. 1 is responsible to keep them in a cover which is mostly
secret. So far as this aspect is concerned, we have adverted to the comments
made by the Commission that the records had been taken away by the appellant
and her advisers on her behalf and zerox copies of the same were available with
them, which were produced as exhibits along with the complaint made to the
Commission. In those circumstances, the inference has been rightly drawn that
the appellant or someone else on her behalf must have caused disappearance of
the consent forms and, therefore, the appellant cannot make any grievance in
It is alleged that there is no Pathology Department in the Hospital and despite
this the removal of the uterus and the products of conception were not sent to
outside Pathological Department to confirm the diagnosis and for future follow
up actions and that cervix in the uterus, being a seat of cancer it was all the
more necessary particularly when the alleged diagnosis is cervical pregnancy
which is rarest type of case. The stand of the respondent on this aspect is
that in the case of the appellant what was seen was a normal sac with a growing
foetus and, therefore, there was no need for any further histopathological
examination. Even assuming for a moment that the uterus had not been sent for histopatholigical
examination after surgery, it would not have helped the case of the appellant
in any manner because that would not have established in any manner negligence
on the part of the respondents in the course of the surgical procedure adopted
in case of the appellant. If there was a suspicion of cancer, there would have
been some manifestation of the same and, in such a circumstance histopathological
examination would have been done to rule out the possibility of cancer.
However, there was no complaint of any kind of cancer nor was there any such
visible proof of the same. The stand of the respondents is that the case of the
appellant was one of a normal trophoblast getting implanted in the upper most
part of cervix and, in such cases, the question of her having carcinoma could
not arise. In these circumstances, we cannot say that the failure to send the
uterus and the products of conception after surgery for histopathological
examination has resulted in any negligence on the part of the respondents.
Therefore, on this aspect also the appellant has failed.
The other contention under this head addressed by the appellant is that the
stand of the doctors that profuse bleeding was on account of tropoblastic
invasion or penetration of cells of cervical pregnancy but on this aspect there
was no note made. The appellant contended that the defence raised by the
respondents was that the profuse bleeding was on account of tropoblastic
invasion/penetration but it could be so only if the condition had arisen at
cervix of the uterus which is a neopbasic condition and an abnormal form of
pregnancy which comes under the head of Molar Pregnancy and Choriocarcinoma
which are malignancy pregnancies and to rule out that possibility histopathological
examination was required. But, as a fact, there is no such material arising in
the present case. Even if such a complication had arisen it would not have
helped the appellant in any manner. In any event, cervical pregnancy had to be
attended to and appropriate procedure had to be adopted for terminating the same,
even if by doing total Hysterectomy. In the light of this fact, all arguments
advanced on behalf of the appellant on this aspect pale into insignificance.
This Court in Achutrao Haribhau Khodwa vs. State of Maharashtra & Ors.,
1996 (2) SCC 634, had occasion to examine the test for determining negligence
of reasonable skill, knowledge and care in the matter of performing his duties
by a medical practitioner. After referring to the decision in Bolam vs. Friern
Hospital Management Committee [supra] and Rogers vs. Whitaker, (1992) 109 ALR
625 [though reported in 1993 Australian Law Journal Reports Vol. 67 Part (2)
47], wherein the High Court of Australia has held that the question is not
whether the doctors conduct accords with the practice of a medical profession
or some part of it, but whether it conforms to the standard of reasonable care
demanded by the law and that is the question for the court to decide and the
duty of deciding it cannot be delegated to any profession or group in the
community. Thus there has been divergence of view between Bolams case (supra)
and Rogerss case (supra). In Sidaway vs. Board of Governors of Bethlem Royal
Hospital, (1985) 1 All ER 643, the House of Lords examined the principle of Bolams
case and had accepted it as applicable to diagnosis and treatment in England.
Court in Laxman Balakrishnan Joshi (Dr.) vs. Dr. Trimbak Bapu Godbole, 1969 (1)
SCR 206, has held as under :
person who holds himself out ready to give medical advice and treatment
impliedly undertakes that he is possessed of skill and knowledge for the
purpose. Such a person when 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 or a duty of care in the administration
of that treatment.
aforesaid principle has been reiterated by this Court in A.S. Mittal vs. State
of U.P., 1989 (3) SCC 223, wherein it was
stated that :
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.
considering the effect of all these decisions, this Court in Achutrao Haribhau Khodwas
case held as follows :- The skill of medical practitioners differs from doctor
very nature of the profession is such that there may be more than one course of
treatment which may be advisable for treating a patient. Courts would indeed be
slow in attributing negligence on the part of a doctor if he has performed his
duties to the best of his ability and with due care and caution. Medical
opinion may differ with regard to the course of action to be taken by a doctor
treating a patient, but as long as a doctor acts in a manner which is
acceptable to the medical profession and the court finds that he has attended
on the patient with due care, skill and diligence and if the patient still does
not survive or suffers a permanent ailment, it would be difficult to hold the
doctor to be guilty of negligence.
645, 646]  Now, let us test whether the material on record leads us to an
inference of negligence on the part of the respondents.
have elaborately discussed the question of diagnosis in the decision whether
MTP should be done or not; whether non-performance of Ultra sonography has
resulted in any negligence; whether there has been any negligence on the part
of the concerned doctors in inserting the lamineria tent and allowing it to
stand over for more than four hours or whether there has been any damage done
to any of the organs of the appellant by the instruments used at the time of Laporotomy
and D & C.
have drawn conclusions upon the evidence produced on record and after detailed
consideration of medical and oral evidence and the evidence recorded by the
Commission with respect to contentions urged on behalf of the respondents, that
is, there has been no negligence on their part.
On any one of the aspects upon which the learned counsel for the appellant has
addressed us, he has not been able to establish that there has been negligence
on the part of the respondents. The case of the appellant was of such a kind
that it was difficult even for a doctor to diagnose on the evidence on record
as to whether she had ectopic pregnancy or not.
However, the learned counsel has referred to the decision of the House of Lords
in Bolitho (administratrix of the estate of Bolitho (deceased) vs. City and
Hackney Health Authority, (1997) 4 AER 771, to contend that the expert evidence
tendered though can be accepted as proper there may be circumstances in which
expert evidence cannot be relied upon as establishing proper level of skill and
competence. If the record discloses expert evidence both for and against a
particular procedure, whether the evidence adduced is reasonable and
responsible and whether such evidence is capable of withstanding the logical
analysis is for the court to decide.
Thus in large majority of cases, it has been demonstrated that a doctor will be
liable for negligence in respect of diagnosis and treatment in spite of a body
of professional opinion approving his conduct where it has not been established
to the courts satisfaction that such opinion relied on is reasonable or
responsible. If it can be demonstrated that the professional opinion is not
capable of withstanding the logical analysis, the court would be entitled to
hold that the body of opinion is not reasonable or responsible. But the present
case does not warrant such a conclusion since it is implicit in the courts view
that the course adopted by Dr. Santha Warriar, respondent No. 2, as reasonable
and although the risk involved might have called for further investigation, we
cannot dismiss the doctors view to the contrary as being illogical. On that
basis, we find that this decision is not of much help to the appellant.
Clark vs. Maclennan & Anr.,  1
All ER 416, was a case where a procedure had been adopted which was a departure
from the orthodox course of treatment. However, there has neither been such an
allegation nor proved as a fact in the present case. Therefore, that decision
has no application in the instant case.
learned counsel for the appellant adverted to the decision in Cassidy vs.
Ministry of Health, (1951) 2 KB 343, to contend that a hospital authority is
responsible for the negligence of its medical staff.
as we have found, in the present case, no negligence has been established on
the part of the medical staff of respondent No. 1.
we find this decision also to be of no relevance.
there was reference to certain other decisions by the learned counsel for the
appellant, we consider it unnecessary to advert to them since they do not lay
down any different or new principles apart from what we have stated in the
course of this judgment.
In the light of the discussion made above, we find that the appellant has not
been able to establish the case of negligence on the part of the respondents
and, therefore, this appeal stands dismissed.
in the circumstances of the case, the parties shall have to bear their
RAJENDRA BABU ] .J.
BALAKRISHNAN ] SEPTEMBER