Martin F. D' Souza Vs.
Mohd. Ishfaq  INSC 347 (17 February 2009)
JURISDICTION CIVIL APPEAL NO. 3541 OF 2002 Martin F. D'Souza .. Appellant
-versus- Mohd. Ishfaq .. Respondent
MARKANDEY KATJU, J.
appeal against the judgment of the National Consumer Disputes Redressal
Commission, New Delhi dated 22.3.2002 has been filed under Section 23 of the Consumer
Protection Act, 1986.
learned counsel for the parties and perused the record.
brief facts of the case are narrated below :
March 1991, the respondent who was suffering from chronic renal failure was
referred by the Director, Health Services to the Nanavati Hospital, Mumbai for
the purpose of a kidney transplant.
or about 24.4.1991, the respondent reached Nanavati Hospital, Bombay and was
under the treatment of the appellant Doctor. At that stage, the respondent was
undergoing haemodialysis twice a week on account of chronic renal failure.
Investigations were underway to find a suitable donor. The respondent wanted to
be operated by Dr. Sonawala alone who was out of India from 1.6.1991 to
20.5.1991, the respondent approached the appellant Doctor. At the time, the
respondent, who was suffering from high fever, did not want to be admitted to
the Hospital despite the advice of the appellant. Hence, a broad spectrum
antibiotic was prescribed to him.
20.5.1991 to 29.5.1991, the respondent attended the Haemodialysis Unit at
Nanavati Hospital on three occasions. At that time, his fever remained between
1010-1040F. The appellant constantly requested the complainant to get admitted
to hospital but the respondent refused.
29.5.1991 the respondent who had high fever of 1040F finally agreed to get
admitted to hospital due to his serious condition.
30.5.1991 the respondent was investigated for renal package. The medical report
showed high creatinine 13 mg., blood urea 180 mg. The Haemoglobin of the
respondent was 4.3%. The following chart indicates the results of the study in
comparison to the normal range :- Normal Range S. Creatinine 13.0 mgs. % 0.7 -
1.5 mgs. % Blood Urea 180 mgs. % 10-50 mgs. % Haemoglobin 4.3 gms. % 11.5-13.5
30.5.1991, the respondent was investigated for typhoid fever, which was
negative. He was also investigated for ESR, which was expectedly high in view
of renal failure and anemia infection. Urine analysis was also carried out
which showed the presence of bacteria.
3.6.1991, the reports of the urine culture and sensitivity were received. The
report showed severe urinary tract infection due to Klebsiella species (1
lac/ml.). The report also showed that the infection could be treated by
Amikacin and Methenamine Mandelate and that the infection was resistant to
other antibiotics. Methnamine Mandelate cannot be used in patients suffering
from renal failure.
4.6.1991, the blood culture report of the respondent was received, which showed
a serious infection of the blood stream (staphylococcus species).
5.6.1991, Amikacin injection was administered to the respondent for three days
(from 5th to 7th June, 1991), since the urinary infection of the respondent was
sensitive to Amikacin. Cap. Augmentin (375 mg.) was administered three times a
day for the blood infection and the respondent was transfused one unit of blood
during dialysis. Consequent upon the treatment, the temperature of the
respondent rapidly subsided.
5.6.1991 to 8.6.1991, the respondent insisted on immediate kidney transplant
even though the respondent had advised him that in view of his blood and urine
infection no transplant could take place for six weeks.
8.6.1991, the respondent, despite the appellant's advice, got himself
discharged from Nanavati Hospital. Since the respondent was suffering from
blood and urinary infection and had refused to come for haemodialysis on
alternate days, the appellant suggested Injection Amikacin (500 mg.) twice a
day. Certain other drugs were also specified to be taken under the supervision
of the appellant when he visited the Dialysis Unit.
11.6.1991, the respondent attended the Haemodialysis Unit and complained to the
appellant that he had slight tinnitus (ringing in the ear). The appellant has
alleged that he immediately told the respondent to stop taking the Amikacin and
Augmentin and scored out the treatment on the discharge card.
express instructions from the appellant, the respondent continued to take
Amikacin till 17.6.1991. Thereafter, the appellant was not under the treatment
of the appellant.
14.6.1991, 18.6.1991 and 20.6.1991 the respondent received haemodialysis at
Nanavati Hospital and allegedly did not complain of deafness during this
25.6.1991, the respondent, on his own accord, was admitted to Prince Aly Khan
Hospital, where he was also treated with antibiotics. The complainant allegedly
did not complain of deafness during this period and conversed with doctors
normally, as is evident from their evidence.
30.7.1991, the respondent was operated upon for transplant after he had ceased
to be under the treatment of the appellant. On 13.8.1991, the respondent was
discharged from Prince Aly Khan Hospital after his transplant.
returned to Delhi on 14.8.1991, after discharge.
7.7.1992, the respondent filed a complaint before the National Consumer
Disputes Redressal Commission, New Delhi (being Original Petition No.178 of
1992) claiming compensation of an amount of Rs.12,00,000/- as his hearing had
been affected. The appellant filed his reply stating, inter alia, that there
was no material brought on record by the respondent to show any co-
relationship between the drugs prescribed and the state of his health.
Rejoinder was filed by the respondent.
National Consumer Disputes Redressal Commission (hereinafter referred to as
`the Commission') passed an order on 6.10.1993 directing the nomination of an
expert from the All India Institute of Medical Sciences, New Delhi (AIIMS) to
examine the complaint and give an opinion. This was done in order to get an
unbiased and neutral opinion.
nominated Dr. P. Ghosh, and the report of Dr. P. Ghosh of the All India
Institute of Medical Sciences was submitted before the Commission, after
examining the respondent. Dr. Ghosh was of the opinion that the drug Amikacin
was administered by the appellant as a life saving measure and was rightly
used. It is submitted by the appellant that the said report further makes it
clear that there has been no negligence on the part of the appellant.
was thereupon led before the Commission. Two affidavits by way of evidence were
filed on behalf of the respondent, being that of his wife and himself. The
witnesses for the respondent were :- i) The respondent Mohd. Ishfaq ii) The
wife of the respondent iii) Dr. Ashok Sareen iv) Dr. Vindu Amitabh
behalf of the appellant, six affidavits by way of evidence were filed.
These were of the
appellant himself, Dr. Danbar (a doctor attached to the Haemodialysis
Department of Nanavati Hospital), Dr. Abhijit Joshi (a Resident Senior Houseman
of Nanavati Hospital), Mrs. Mukta Kalekar (a Senior sister at Nanavati
Hospital), Dr. Sonawala (the Urologist who referred the respondent to the
appellant) and Dr. Ashique Ali Rawal (a Urologist attached to Prince Aly Khan
Hospital). The witnesses for the appellant were:- i) The appellant-Dr. M.F.
D'Souza ii) Dr. Danbar iii) Dr. Upadhyay iv) Mrs. Mukta Kalekar v) Dr. Ashique
respondent also filed an opinion of the Chief of Nephrology at Fairview General
Hospital, Cleveland, Ohlo, which was heavily relied upon in the impugned
judgment. The appellant has alleged that the said opinion was written without
examining the respondent and, in any case, the appellant was not afforded an
opportunity of cross-examining the person who gave the opinion.
case of the respondent, in brief, is that the appellant was negligent in prescribing
Amikacin to the respondent of 500 mg twice a day for 14 days as such dosage was
excessive and caused hearing impairment. It is also the case of the respondent
that the infection he was suffering from was not of a nature as to warrant
administration of Amikacin to him.
appellant submitted before the Commission that at the time of admission of the
respondent on 29.5.1991 to the hospital, he had fever of 1040F and, after
investigation, it was found that his serum creatinine level was 13 mg%, blood
urea 180 mg% and Haemoglobin 4.3 mg. Amikacin was prescribed to him only after
obtaining blood and urine culture reports on 3rd and 4th June, 1991, which
showed the respondent resistant to other antibiotics. Even the witness of the
respondent (Dr. Sareen) conceded that he would have prescribed Amikacin in the
facts of the case. However, the Commission allowed the complaint of the
respondent by way of the impugned order dated 9.4.2002 and awarded Rs.4 lakh
with interest @ 12% from 1.8.1992 as well as Rs.3 lakh as compensation as well
as Rs.5000/- as costs.
discussing the facts of the case, we would like to state the law regarding
Medical Negligence in India.
both civil and criminal as well as in Consumer Fora, are often filed against
medical practitioners and hospitals, complaining of medical negligence against
doctors/hospitals/nursing homes and hence the latter naturally would like to
know about their liability.
general principles on this subject have been lucidly and elaborately explained
in the three Judge Bench decision of this Court in Jacob Mathew vs. State of
Punjab and Anr. (2005) 6 SCC 1. However, difficulties arise in the application
of those general principles to specific cases.
instance, in para 41 of the aforesaid decision it was observed :
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 is what the law requires."
what is reasonable and what is unreasonable is a matter on which even experts
may disagree. Also, they may disagree on what is a high level of care and what
is a low level of care.
give another example, in paragraph 12 to 16 of Jacob Mathew's case (Supra), it
has been stated that simple negligence may result only in civil liability, but
gross negligence or recklessness may result in criminal liability as well. For
civil liability only damages can be imposed by the Court but for criminal
liability the Doctor can also be sent to jail (apart from damages which may be
imposed on him in a civil suit or by the Consumer Fora). However, what is
simple negligence and what is gross negligence may be a matter of dispute even
law, like medicine, is an inexact science. One cannot predict with certainty an
outcome of many cases. It depends on the particular facts and circumstances of
the case, and also the personal notions of the Judge concerned who is hearing
the case. However, the broad and general legal principles relating to medical
negligence need to be understood.
dealing with these principles two things have to be kept in mind :
(1) Judges are not
experts in medical science, rather they are lay men. This itself often makes it
somewhat difficult for them to decide cases relating to medical negligence.
Moreover, Judges have usually to rely on testimonies of other doctors which may
not necessarily in all cases be objective, since like in all professions and
services, doctors too sometimes have a tendency to support their own colleagues
who are charged with medical negligence. The testimony may also be difficult to
understand, particularly in complicated medical matters, for a layman in
medical matters like a Judge; and (2) A balance has to be struck in such cases.
While doctors who cause death or agony due to medical negligence should
certainly be penalized, it must also be remembered that like all professionals
doctors too can make errors of judgment but if they are punished for this no
doctor can practice his vocation with equanimity. Indiscriminate proceedings
and decisions against doctors are counter productive and serve society no good.
They inhibit the free exercise of judgment by a professional in a particular
the above two notions in mind we may discuss the broad general principles
relating to medical negligence.
Relating to Medical Negligence
already stated above, the broad general principles of medical negligence have
been laid down in the Supreme Court Judgment in Jacob Mathew vs. State of
Punjab and Anr. (supra). However, these principles can be indicated briefly
basic principle relating to medical negligence is known as the BOLAM Rule. This
was laid down in the judgment of Justice McNair in Bolam vs. Friern Hospital
Management Committee (1957) 1 WLR 582 as follows :
"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 exercises the ordinary skill
of an ordinary competent man exercising that particular art."
Bolam's test has been
approved by the Supreme Court in Jacob Mathew's case.
Halsbury's Laws of England the degree of skill and care required by a medical
practitioner is stated as follows :
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
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."
vs. Binnie (1988) 18 Con LR 1 summarized the Bolam test in the following words
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 the knowledge of new advances,
discoveries and developments in his field. He should have such an awareness as
an ordinarily competent 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 a
polymath and prophet."
medical practitioner is not liable to be held negligent simply because things
went wrong from mischance or misadventure or through an error of judgment in
choosing one reasonable course of treatment in preference to another.
He would be liable
only where his conduct fell below that of the standards of a reasonably
competent practitioner in his field. For instance, he would be liable if he
leaves a surgical gauze inside the patient after an operation vide Achutrao
Haribhau Khodwa & others vs. State of Maharashtra & others, AIR 1996 SC
2377 or operates on the wrong part of the body, and he would be also criminally
liable if he operates on someone for removing an organ for illegitimate trade.
is a tendency to confuse a reasonable person with an error free person. An
error of judgment may or may not be negligent. It depends on the nature of the
is not enough to show that there is a body of competent professional opinion
which considers that the decision of the accused professional was a wrong
decision, provided there also exists a body of professional opinion, equally
competent, which supports the decision as reasonable in the circumstances. As
Lord Clyde stated in Hunter vs. Hanley 1955 SLT 213 :
"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...."
standard of care has to be judged in the light of knowledge available at the
time of the incident and not at the date of the trial. Also, where the charge
of negligence is of failure to use some particular equipment, the charge would
fail if the equipment was not generally available at that point of time.
higher the acuteness in an emergency and the higher the complication, the more
are the chances of error of judgment. At times, the professional is confronted
with making a choice between the devil and the deep sea and has to choose the
lesser evil. The doctor 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 but a doctor
cannot be penalized if he adopts the former procedure, even if it results in a
failure. The usual practice prevalent nowadays is to obtain the consent of the
patient or of the person in-charge of the patient if the patient is not in a
position to give consent before adopting a given procedure.
may be a few cases where an exceptionally brilliant doctor performs an
operation or prescribes a treatment which has never been tried before to save
the life of a patient when no known method of treatment is available. If the
patient dies or suffers some serious harm, should the doctor be held liable? In
our opinion he should not. Science advances by experimentation, but experiments
sometime end in failure e.g. the operation on the Iranian twin sisters who were
joined at the head since birth, or the first heart transplant by Dr. Barnard in
South Africa. However, in such cases it is advisable for the doctor to explain
the situation to the patient and take his written consent.
because a patient has not favourably responded to a treatment given by a doctor
or a surgery has failed, the doctor cannot be held straightway liable for
medical negligence by applying the doctrine of res ipsa loquitur. No sensible
professional would intentionally commit an act or omission which would result
in harm or injury to the patient since the professional reputation of the
professional would be at stake. A single failure may cost him dear in his
observed by the Supreme Court in Jacob Mathew's case :
practitioner 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.
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. 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.
If the hands be
trembling with the dangling fear of facing a criminal prosecution in the event
of failure for whatever reason - whether attributable to himself or not,
neither can a surgeon successfully wield his life-saving scalpel to perform an
essential surgery, nor can a physician successfully administer the life-saving
dose of medicine. Discretion being the better part of valour, a medical
professional would feel better advised to leave a terminal patient to his own
fate in the case of emergency where the chance of success may be 10% (or so),
rather than taking the risk of making a last ditch effort towards saving the
subject and facing a criminal prosecution if his effort fails. Such timidity
forced upon a doctor would be a disservice to society."
a patient dies or suffers some mishap, there is a tendency to blame the doctor
for this. Things have gone wrong and, therefore, somebody must be punished for
it. However, it is well known that even the best professionals, what to say of
the average professional, sometimes have failures. A lawyer cannot win every
case in his professional career but surely he cannot be penalized for losing a
case provided he appeared in it and made his submissions.
fasten liability in criminal proceedings e.g. under Section 304A IPC the degree
of negligence has to be higher than the negligence which is enough to fasten
liability in civil proceedings. Thus for civil liability it may be enough for
the complainant to prove that the doctor did not exercise reasonable care in
accordance with the principles mentioned above, but for convicting a doctor in
a criminal case, it must also be proved that this negligence was gross
amounting to recklessness.
difference between simple negligence and gross negligence has broadly been
explained in paragraphs 12 to 16 of Jacob Mathew's case, though difficulties
may arise in the application of the principle in particular cases. For
instance, if a mop is left behind in the stomach of a patient while doing an
operation, would it be simple negligence or gross negligence? If a scissors or
sharp edged medical instrument is left in the patient's body while doing the
operation would that make a difference from merely leaving a mop?
professional is one who professes to have some special skill. A professional
impliedly assures the person dealing with him (i) that he has the skill which
he professes to possess, (ii) that skill shall be exercised with reasonable
care and caution.
by this standard, the professional may be held liable for negligence on the
ground that he was not possessed of the requisite skill which he professes to
have. Thus a doctor who has a qualification in Ayurvedic or Homeopathic
medicine will be liable if he prescribes Allopathic treatment which causes some
harm vide Poonam Verma vs. Ashwin Patel & Ors. (1996) 4 SCC 332.
In Dr. Shiv Kumar
Gautam vs. Alima, Revision Petition No.586 of 1999 decided on 10.10.2006, the
National Consumer Commission held a homeopath liable for negligence for
prescribing allopathic medicines and administering glucose drip and giving
Protection to Doctors
in Criminal Cases
para 52 of Jacob Mathew's case the Supreme Court realizing that doctors have to
be protected from frivolous complaints of medical negligence, has laid down
certain rules in this connection :
(i) A private
complaint should not be entertained unless the complainant has produced prima
facie evidence before the court in the form of a credible opinion given by
another competent doctor to support the charge of rashness or negligence on the
part of the accused doctor.
investigating officer should, before proceeding against the doctor accused of
rash or negligent act or omission, obtain an independent and competent medical
opinion, preferably from a doctor in government service, qualified in that
branch of medical practice who can normally be expected to give an impartial
opinion applying the Bolam test.
(iii) A doctor
accused of negligence should not be arrested in a routine manner simply because
a charge has been leveled against him.
Unless his arrest is
necessary for furthering the investigation or for collecting evidence or unless
the investigating officer feels satisfied that the doctor proceeded against
would not make himself available to face the prosecution unless arrested, the
arrest should be withheld.
Doctor/Hospitals/Nursing Homes should take :
practices, infrastructure, paramedical and other staff, hygiene and sterility
should be observed strictly. Thus, in Sarwat Ali Khan vs. Prof. R. Gogi and
others Original Petition No.181 of 1997, decided on 18.7.2007 by the National
Consumer Commission, the facts were that out of 52 cataract operations
performed between 26th and 28th September, 1995 in an eye hospital 14 persons
lost their vision in the operated eye. An enquiry revealed that in the
Operation Theatre two autoclaves were not working properly. This equipment is
absolutely necessary to carry out sterilization of instruments, cotton, pads,
linen, etc., and the damage occurred because of its absence in working
condition. The doctors were held liable.
(b) No prescription
should ordinarily be given without actual examination. The tendency to give
prescription over the telephone, except in an acute emergency, should be
(c) A doctor should
not merely go by the version of the patient regarding his symptoms, but should
also make his own analysis including tests and investigations where necessary.
(d) A doctor should
not experiment unless necessary and even then he should ordinarily get a
written consent from the patient.
(e) An expert should
be consulted in case of any doubt. Thus, in Smt. Indrani Bhattacharjee,
Original Petition No.233 of 1996 decided by the National Consumer Commission on
9.8.2007, the patient was diagnosed as having `Mild Lateral Wall Eschemia'. The
doctor prescribed medicine for gastro-entiritis, but he expired. It was held
that the doctor was negligent as he should have advised consulting a
Cardiologist in writing.
(f) Full record of
the diagnosis, treatment, etc. should be maintained.
Application of the
above mentioned general principles to particular cases :
Decisions of the
Pt. Parmanand Katara vs. Union of India & Others AIR 1989 SC 2039, the
petitioner referred to a report published in the newspaper "The Hindustan
Times" in which it was mentioned that a scooterist was knocked down by a
speeding car. Seeing the profusely bleeding scooterist, a person who was on the
road, picked up the injured and took him to the nearest hospital. The doctors
refused to attend and told the man that he should take the patient to another hospital
located 20 kilometers away authorized to handle medico-legal cases. The injured
was then taken to that hospital but by the time he could reach, the victim
succumbed to his injuries.
Supreme Court referred to the Code of Medical Ethics drawn up with the approval
of the Central Government under Section 33 of the Indian Council Medical Act
and observed "Every doctor whether at a Government Hospital or otherwise
has the professional obligation to extend his services for protecting life. The
obligation being total, absolute and paramount, laws of procedure whether in
statutes or otherwise cannot be sustained and, therefore, must give way."
Supreme Court held that it is the duty of the doctor in an emergency to begin
treatment of the patient and he should not await the arrival of the police or
to complete the legal formalities. The life of a person is far more important
than legal formalities. This view is in accordance with the Hippocratic oath of
this decision has laid down that it is the duty of a doctor to attend to a
patient who is brought to him in an emergency, it does not state what penalty
will be imposed on a doctor who refuses to attend the said patient.
Consequently it will
depend on the fact and circumstances of the case. However, this case is
important because nowadays health care has often become a business, as is
mentioned in George Bernard Shaw's play "The Doctor's Dilemma". The
medical profession is a noble profession and it should not be brought down to
the level of a simple business or commerce. The truth of the matter, sadly, is
that today in India many doctors (though not all) have become totally
money-minded, and have forgotten their Hippocratic oath. Since most people in
India are poor the consequence is that for them proper medical treatment is
next to impossible, and hence they have to rely on quacks. This is a disgrace
to a noble profession.
Paschim Banga Khet Mazdoor Samity and others vs. State of West Bengal and
Another AIR 1996 SC 2426, the Supreme Court held that the denial of emergency
aid to the petitioner due to the non availability of bed in the Government
Hospital amounts to the violation of the right to life under Article 21 of the
Constitution. The Court went on to say that the Constitutional obligation
imposed on the State by Article 21 cannot be abdicated on the ground of
Md. Suleman Ansari (D.M.S.) vs. Shankar Bhandari (2005) 12 SCC 430 the
respondent suffered a fracture of his hand. He went to the appellant who held
himself out to be a qualified medical practitioner. The appellant bandaged the
respondent's hand and prescribed certain medicines. He was ultimately taken to
another doctor but by this time the damage to his hand was permanent. It was
found that the appellant was not a qualified doctor to give treatment to the
respondent. The Supreme Court had directed him to pay Rs.80,000 as compensation
to the respondent.
Surendra Chauhan vs. State of M.P. (2000) 4 SCC 110, the appellant was having a
degree of Bachelor of Medicine in Electrohomoeopathy from the Board of
Electrohomoeopathy Systems of Medicines, Jabalpur (M.P.). He did not possess
any recognized medical qualification as defined in the Indian Medical Council
Act, 1956. Yet he performed an operation to terminate the three month pregnancy
in a woman, who died in the clinic due to shock due to non application of
anesthesia. The Supreme Court confirmed his sentence but reduced it to one and
a half years rigorous imprisonment under Section 314/34 IPC and a fine of
Rs.25000 payable to the mother of the deceased.
State of Haryana and others vs. Raj Rani (2005) 7 SCC 22 it was held that if a
child is born to a woman even after she had undergone a sterilization operation
by a surgeon, the doctor was not liable because there cannot be a 100%
certainty that no child will be born after a sterilization operation. The Court
followed the earlier view of another three Judge Bench in State of Punjab vs.
Shiv Ram & others (2005) 7 SCC 1. These decisions will be deemed to have
overruled the two Judge Bench decision in State of Haryana and Others vs. Smt.
Santra AIR 2000 SC 1888 in which it was held that if a child is born after the
sterilization operation the surgeon will be liable for negligence.
P.N. Rao vs. G. Jayaprakasu AIR 1990 AP 207, the plaintiff was a brilliant
young boy who had passed the pre-University course securing 100% marks in
Mathematics and 93.5% in physical sciences. He was also getting a monthly
scholarship. He was offered a seat in B.E. Degree course in four Engineering
Colleges. He had a minor ailment - chronic nasal discharge - for which his
mother took him to a doctor for consultation who diagnosed the disease as Nasal
Allergy and suggested operation for removal of tonsils. He was admitted in the
Government General Hospital, Guntur and the operation was performed. He did not
regain consciousness even after three days and thereafter for another 15 days
he was not able to speak coherently. When he was discharged from hospital, he
could only utter a few words and could not read or write and lost all his
knowledge and learning. His father took him to Vellore where he was examined by
a Professor of Neuro Surgery and it was found that his brain had suffered due
to cerebral anoxia, which was a result of improper induction of anaesthetics
and failure to take immediate steps to reduce anaesthesia. The court after
examining the witnesses including the Professor of Anaesthesiology held that
defendants were clearly negligent in discharging their duties and the State
Government was vicariously liable.
Dr. Laxman Balkrishna Joshi vs. Dr. Trimbak Bapu Godbole and Another AIR 1969
SC 128, a patient had suffered from fracture of the femur. The accused doctor
while putting the leg in plaster used manual traction and used excessive force
for this purpose, with the help of three men, although such traction is never
done under morphia alone but done under proper general anaesthesia. This gave a
tremendous shock causing the death of the boy. On these facts the Supreme Court
held that the doctor was liable to pay damages to the parents of the boy.
Dr. Suresh Gupta vs. Government of N.C.T. of Delhi and another AIR 2004 SC
4091, the appellant was a doctor accused under Section 304A IPC for causing
death of his patient. The operation performed by him was for removing his nasal
deformity. The Magistrate who charged the appellant stated in his judgment that
the appellant while conducting the operation for removal of the nasal deformity
gave incision in a wrong part and due to that blood seeped into the respiratory
passage and because of that the patient collapsed and died. The High Court
upheld the order of the Magistrate observing that adequate care was not taken
to prevent seepage of blood resulting in asphyxia. The Supreme Court held that
from the medical opinions adduced by the prosecution the cause of death was
stated to be `not introducing a cuffed endotracheal tube of proper size as to
prevent aspiration of blood from the wound in the respiratory passage.' The
Supreme Court held that this act attributed to the doctor, even if accepted to
be true, can be described as a negligent act as there was a lack of care and
precaution. For this act of negligence he was held liable in a civil case but
it cannot be described to be so reckless or grossly negligent as to make him
liable in a criminal case. For conviction in a criminal case the negligence and
rashness should be of such a high degree which can be described as totally apathetic
towards the patient.
Dr. Sr. Louie and Anr. vs. Smt. Kannolil Pathumma & Anr. the National
Consumer Commission held that Dr. Louie showed herself as an M.D. although she
was only M.D. Freiburg, a German Degree which is equivalent to an M.B.B.S.
degree in India. She was guilty of negligence in treating a woman and her baby
which died. There was vacuum slip, and the baby was delivered in an asphyxiated
Nihal Kaur vs. Director, P.G.I.M.S.R. (1996) CPJ 112 a patient died a day after
surgery and the relatives found a pair of scissors utilized by the surgeon
while collecting the last remains. The doctor was held liable and a
compensation of Rs.1.20 lakhs was awarded by the State Consumer Forum,
Spring Medows Hospital & Another vs. Harjol Ahluwalia thr' K.S. Ahluwalia
& Another (1998) CPJ 1, a minor child was admitted by his parents to a
nursing home as he was suffering fever. The patient was admitted and the doctor
diagnosed typhoid and gave medicines for typhoid fever. A nurse asked the
father of the patient to get an injection Lariago which was administered by the
nurse to the patient who immediately collapsed. The doctor was examined and
testified that the child suffered a cardiac arrest on account of the medicine
having being injected which led to brain damage. The National Commission held
that the cause of cardiac arrest was intravenous injection of Lariago of such a
high dose. The doctor was negligent in performing his duty because instead of
administering the injection himself he permitted the nurse to give the
injection. There was clear dereliction of duty on the part of the nurse who was
not even a qualified nurse and was not registered with any nursing council of
any State. Both the doctor and nurse and the hospital were found liable and
Rs.12.5 lakhs was awarded as compensation to the parents.
Consumer Protection Council and Others vs. Dr. M. Sundaram and Another (1998)
CPJ 3, the facts were that one Mrs. Rajalaxmi was admitted to a nursing home
which diagnosed the ailment as Hodgkin's Lymphoma. She was administered Endoxan
injection five doses in five days. She was referred to another doctor who was
an ENT specialist, who after examination opined that no lymph glands were seen.
A sample of her bone marrow was sent to an Oncologist who opined that the
picture does not fit with Hodgkin's disease but the patient had megaloblastic
anemia in the bone marrow. Subsequently she was discharged from the nursing
home and was advised to visit CMC Vellore for treatment. The patient consulted
another doctor who diagnosed the same as renal failure. The complainant alleged
that the first doctor failed and neglected to refer the matter to a Cancer
Specialist but wrongly diagnosed the ailment of the patient as Hodgkin's
Lymphoma and had unnecessarily administered injection of Endoxan and because of
the toxicity of that drug the kidney cells of the patient got destroyed
resulting in renal failure for which she had to undergo kidney transplantation
which led to her death. The National Commission, upholding the State Commission
decision, held that there was no negligence on the part of the doctor who had
consulted a pathologist, and in the light of discussion with him and on
inspection of some more slides of bone marrow specimens which also revealed the
same finding, namely, existence of deposits of Hodgkin's Lymphoma, proceeded to
administer the patient injections of Endoxan. It was held on the basis of
medical opinion that any prudent consultant physician would not delay the
commencement of chemotherapy where repeated examination of the bone marrow
slides had yielded the report that the Hodgkin's deposits were present. Endoxan
is a drug of choice in the treatment of Hodgkin's Lymphoma and there was no
negligence on the part of the doctor.
Sethuraman Subramaniam Iyer vs. Triveni Nursing Home and Another (1998) CPJ
110, the complainant's wife suffered from Sinusitis and was advised surgery by
the doctor. She had suffered a massive heart attack while in the operation
theatre. The State Commission found that necessary precautions and effective
measures were taken to save the deceased and dismissed the complaint.
The State Commission
relied on the affidavits of four doctors who opined that there was no
negligence. The complainant had not given any expert evidence to support his
allegation and in these circumstances it was held that no case was made out
against the doctor.
A. S. Mittal & Anr. vs. State of U.P. & Ors. JT 1989 (2) SC 419, 1989
(3) SCC 223 a free eye camp was organized for ophthalmic surgical treatment to
patients. However, the eyes of several patients after operation were
irreversibly damaged, owing to post-operative infection of the intra ocular
cavities of the eyes, caused by normal saline used at the time of surgery. The
Supreme Court directed the State Government to pay Rs.12,500/- as compensation
to each victim as there was a clear negligence.
Indian Medical Association vs. V.P. Shantha 1995(6) SCC 651 (vide para 37) it
has been held that the following acts are clearly due to negligence :
(i) Removal of the
(ii) Performance of
an operation on the wrong patient;
injection of a drug to which the patient is allergic without looking into the
out-patient card containing the warning;
(iv) Use of wrong gas
during the course of an anaesthetic, etc.
the aforementioned principles and decisions relating to medical negligence,
with which we agree, it is evident that doctors and nursing homes/hospitals
need not be unduly worried about the performance of their functions. The law is
a watchdog, and not a bloodhound, and as long as doctors do their duty with
reasonable care they will not be held liable even if their treatment was
every doctor should, for his own interest, carefully read the Code of Medical
Ethics which is part of the Indian Medical Council (Professional Conduct,
Etiquette and Ethics) Regulations, 2002 issued by the Medical Council of India
under Section 20A read with Section 3(m) of the Indian Medical Council Act. 1956.
mentioned the principles and some decisions relating to medical negligence
(with which we respectfully agree), we may now consider whether the impugned
judgment of the Commission is sustainable. In our opinion the judgment of the
Commission cannot be sustained and deserves to be set aside.
basic principle relating to the law of medical negligence is the Bolam Rule
which has been quoted above. The test in fixing negligence is the standard of
the ordinary skilled doctor exercising and professing to have that special
skill, but a doctor need not possess the highest expert skill. Considering the
facts of the case we cannot hold that the appellant was guilty of medical
facts of the case reveal that the respondent was suffering from chronic renal
failure and was undergoing haemodialysis twice a week on that account. He was
suffering from high fever which remained between 1010-1040F.
He refused to get
admitted to hospital despite the advice of the appellant. The appellant
prescribed antibiotics for him. The respondent was also suffering from severe
urinary tract infection which could only be treated by Amikacin or Methenamine
Mandelate. Since Methenamine Mandelate cannot be used in patients suffering
from renal failure, Amikacin injection was administered to him.
perusal of the complaint filed by the respondent before the National Commission
shows that his main allegation is that he suffered hearing impairment due to
the negligence of the appellant herein who allegedly prescribed overdose of
Amikacin injections without caring about the critical condition of the
respondent which did not warrant that much dose. The complainant (respondent
herein) has alleged that due to this medical negligence the complainant has
suffered mental torture and frustration and other signs of helplessness and is
feeling totally handicapped, and his efficiency in office has got adversely
affected. It may be mentioned that the respondent is working as Export
Promotion Officer in the Ministry of Commerce, Udyog Bhawan, New Delhi.
case of the appellant, however, is that the complainant was referred to the
appellant by Dr. F. P. Soonawalla, the renowned Urologist of Bombay. The
complainant had consulted Dr. F. P. Soonawalla who had referred the complainant
to the appellant for routine Haemodialysis and pre-transplant treatment. In our
opinion, the very fact that Dr. Soonawalla referred the complainant to the
appellant is an indication that the appellant has a good reputation in his
field, because Dr. Soonawalla is an eminent doctor of India of international
repute, and he would not have ordinarily referred a patient to an incompetent
doctor. This is one factor which goes in favour of the appellant, though of
course it is not conclusive.
appears that after the complainant was referred to the appellant by Dr. Soonawalla
he met the appellant for the first time on 24.4.1991 as an outdoor patient in
the Haemodialysis Unit attached to Bulabhai Nanavati Hospital, Bombay.
After examining the
complainant, the appellant found that the complainant was a patient of Chronic
Renal Failure due to Bilateral Poly Cystic Kidneys. Hence the appellant
suggested to the complainant to have Haemodialysis twice a week as an outdoor
patient. The complainant was also investigated to find a suitable kidney donor.
appellant has alleged in his written statement filed before the National
Commission that the complainant was in a hurry to have a quick kidney
transplant by Dr. Soonawalla and he was very obstinate, stubborn and short- tempered.
Dr. Soonawalla was out of India from 1.6.1991 to 1.7.1991. On 20.5.1991, the
complainant approached the appellant with high fever of 101-103OF, and the
appellant suggested immediate admission of the complainant in the hospital for
detailed investigation and treatment but the complainant refused to get himself
admitted and refused to comply with the advice. Hence the appellant was obliged
to put the complainant on a Broad Spectrum Antibiotic Ampoxim 500 mg four times
a day and Tab. Crocin - SOS fever.
21.5.1991, the complainant attended the Haemodialysis unit of the hospital on
three occasions and informed the appellant that the fever had not yet remitted.
The appellant again advised the complainant to get admitted in hospital, but he
refused the advice on account of his obstinacy.
29.5.1991, the complainant was in a serious condition having high fever of
104OF. After much persuasion he finally agreed to be admitted for final
investigation and got admitted in the hospital on 29.5.1991.
complainant was investigated on 30.5.1991 and his report showed High Creatinine
- 13 mg., Blood Urea - 180 mg and Haemoglobin 4.3% which was 5 days prior to
the commencement of the injection Amikacin and not after the said injection.
our opinion it is clear that the respondent already had high Blood Creatinine,
Blood Urea and low Haemoglobin before the injection of Amikacin. He had also
high fever which was on account of serious blood and urinary tract infection.
The appellant was of the view that the respondent's infection could only be
treated by injection of Amikacin, as Methenamine Mandelate could not be used
due to his chronic renal failure. The respondent's report also established his
resistance to all other antibiotics. Gastroscopy was done on 4.6.1991 and
Amikacin was administered after test dosage only from 5.6.1991. Amikacin was
administered on 5th, 6th and 7th June, 1991 and at this stage he did not
complain of any side effects and his temperature subsided rapidly. On 5.6.1991,
he was administered Cap.
Augmentin 375 mg
three times a day for his serious Blood Infection and he was also transferred
one Unit of Blood during dialysis and his temperature subsided rapidly and he
felt much better.
appellant advised the respondent in view of his blood infection that he should
not get transplanted for six weeks, but the complainant/respondent insisted on
getting the transplant although he was not medically in fit condition.
Hence the appellant
advised the respondent to further stay in the hospital for some time, but the
respondent did not agree and he started shouting at the top of his voice and
insisted to be discharged from the hospital on his own on 8.6.1991 at 9 a.m..
view of his insistence the respondent was discharged from the hospital on his
own on 8.6.1991 at 9 a.m.. The appellant suggested alternate day Haemodialysis
but the respondent refused saying that he was staying too far away and could
not come three times a week for Haemodialysis. In this situation, the appellant
was left with no choice but to suggest Injection Amikacin (500 mg) twice a day
in view of the respondent's infection and delicate condition and his refusal to
visit the Haemodialysis facility on alternate dates. The appellant also
suggested the following drugs under the supervision of the doctor when he would
visit the dialysis unit:
Amikacin 500 mg twice a day x 10 days for urinary tract infection.
2. Cap. Augmentine
375 mg 3 times a day for 6 weeks for blood infection
3. Cap. Becosule tab
4. Tab. Folvite 1
5. Syrup Alludux
6. Injection Engrex
once a month for 2 months 7. Cap. Bantes 100 mg twice a day"
appears that the respondent attended the Haemodyalsis unit where he met the
appellant on 11th, 14th, 18th and 20th June, 1991. Thereafter the respondent
did not come to the hospital.
11.6.1991 the respondent complained to the appellant of slight tinnitus or
ringing in the ear. The appellant immediately reviewed the treatment on the
discharge card in possession of the respondent and asked the said respondent
and also asked his attendant i.e. his wife to stop Injection Amikacin and Cap.
and also marked `X' on the discharge card in his own hand writing on 11.6.1991
i.e. 3 days after discharge. Hence, as per direction of the appellant the
respondent should have stopped receiving Injection Amikacin after 10.6.1991,
but on his own he kept on taking Amikacin Injections. The Discharge Card as per
the respondent's complaint clearly shows that the said injection had been `X'
crossed, and he was directed not to take the said injection from 11.6.1991 i.e.
on his very first complaint when he made mention of ringing in the ears or
perusal of the Xerox copies of the papers of the Cash Memo supplied by the
respondent as per annexure `4' it is in our opinion evident that the respondent
continued to take the medicine against the advice of the appellant, and had
unilaterally been getting injected as late as 17.6.1991, i.e. 7 days after he
had been instructed verbally and in writing in the presence of his attendant
i.e. his wife and staff members of the said hospital to stop Injection
Amikacin/Cap. Augmantine because of tinnitus as early as on 11.6.1991.
19.6.1991 a relative of the respondent who identified himself on the phone as
one Mr. Khan from Byculla rang up and stated that the said respondent was once
again running high fever. The appellant once again immediately advised him
urgent admission to the said hospital which the respondent refused to comply
and said that he would go elsewhere.
the above facts it is evident that the appellant was not to blame in any way
and it was the non-cooperative attitude of the respondent, and his continuing
with the Amikacin injection even after 11.6.1991 which was the cause of his
ailment, i.e. the impairment of his hearing. A patient who does not listen to
his doctor's advice often has to face the adverse consequences.
is evident from the fact that the respondent was already seriously ill before
he met the appellant. There is nothing to show from the evidence that the
appellant was in any way negligent, rather it appears that the appellant did
his best to give good treatment to the respondent to save his life but the
respondent himself did not cooperate.
doctors have been examined by the National Commission and we have read their
evidence which is on record. Apart from that, there is also the opinion of
Prof. P. Ghosh of All India Institute of Medical Sciences who had been
nominated by AIIMS as requested by the Commission, which is also on record. It
has been stated by Dr. Ghosh that many factors in the case of renal diseases
may cause hearing loss. Prof. Ghosh has stated that it is impossible to
foretell about the sensitivity of a patient to a drug, thereby making it
difficult to assess the contributions towards toxicity by the other factors
involved. Hearing loss in renal patients is a complex problem which is a result
of many adverse and unrelated factors. Generally, the state of hearing of a
renal patient at any time is more likely to be the result of a multifactorial
effect than the response to a single agent.
Ghosh has no doubt mentioned that concomitant use of Aminoglycoside antibiotics
(e.g. Amikacin) and loop diuretic may lead to summation and potentiation of
ototoxic effect, and the patient has a higher risk factor of hearing impairment
if there is a higher dose of Amikacin. However, he has stated that such gross
impairment of the balancing function has perhaps been wrought by a combination
Ghosh has also opined that the Amikacin dose of 500 mg twice a day for 14 days
prescribed by the doctor was a life saving measure and the appellant did not
have any option but to take this step. Life is more important than saving the
function of the ear. Prof Ghosh was of the view that antibiotics was rightly
given on the report of the sensitivity test which showed that the organisms
were sensitive to Amikacin. Hence the antibiotic, was not blindly used on a
speculation or as a clinical experiment.
Ghosh mentioned that in the literature on Amikacin it has been mentioned that
in a life threatening infection adult dosage may be increased to 500 mg every
eight hours but should not be administered for longer than 10 days.
view of the opinion of Prof Ghosh, who is an expert of the All India Institute
of Medical Sciences, we are clearly of the view that the appellant was not
guilty of medical negligence and rather wanted to save the life of the
The appellant was
faced with a situation where not only was there kidney failure of the patient,
but also urinary tract infection and blood infection. In this grave situation
threatening the life of the patient the appellant had to take drastic steps.
Even if he prescribed
Amikacin for a longer period than is normally done, he obviously did it to save
the life of the respondent.
have also seen the evidence of other doctors as well as the affidavits filed
before the National Commission. No doubt some of the doctors who have deposed
in this case have given different opinions, but in cases relating to
allegations of medical negligence this Court has to exercise great caution.
Ashok Sareen who is MD in medicine and trained in Nephrology has in his
evidence stated that for Kidney failure patients one has to be very careful
with the drug Amikacin. He stated that he uses the drug only when other
antibiotics have failed or cannot be used. It should be used with wide intervals
and only when absolutely necessary and when no other drug is available. When
asked whether Amikacin should be given to a patient with 10 days stretch, as
was prescribed by the appellant in this case, Dr. Sareen replied that it was
difficult to give an answer to that question because it depends entirely on the
treating physician. Dr. Sareen has admitted that giving Amikacin injection
twice a day for 14 days can cause nerve deafness which means losing one's
hearing. No doubt, Dr. Sareen in his cross- examination stated that he would
have prescribed the dose given to the respondent differently but he has not
stated what would be the dose he would have prescribed.
have also perused the evidence of Dr. Vindu Amitabh, who is a MD in medicine in
Safdarjung hospital and looking after Nephrology also. He has stated that
normally Amikacin is given for 5 to 7 days twice daily. However, he has also
stated that in severe circumstances it can be given for a longer period but if
the patient is developing complications then the doses should be stopped
If there is no
substitute for it then Amikacin should be given in a very guarded dose.
He has admitted that
Amikacin can lead to deafness.
the affidavit of Dr. Raval of the Bombay Indian Inhabitant, who has been
practicing in Urology for several years it is stated that the respondent had
undergone a kidney transplant operation under Dr. Raval's supervision on 30th
July 1991 at the Prince Alikhan Hospital, Bombay and he was discharged on 13th
August, 1991. Dr. Raval has stated in his affidavit that during the time the
respondent was under his care he had a free conversation in English and Urdu
without the aid of interpreter and he did not complain of suffering any hearing
problem until he was discharged in the middle of August 1991. An affidavit to
the same effect has been given by Dr. Kirti L. Upadhyaya, of Bombay Indian
Inhabitant, who is also a Nephrologist. He stated that the respondent did not
complain of any hearing problem to him also.
affidavit has also been filed by Dr. Sharad M. Sheth, of Bombay Indian
Inhabitant who is also MD qualified in Nephrology. He also stated in paragraph
3 of his affidavit as follows:- "I state that in the circumstances of the
case when Klebsiella Organism was found resistant to all powerful drugs
inclusive of Augmentin with the exception of Amikacin any nephrologist of a
reasonable standard of proficiency would have prescribed "Amikacin"
drug in measured doses as a life saving drug despite the well established fact
that this drug might cause `tinnitus' or partial hearing impairment which is
reversible, to almost complete extent in most of the cases after discontinuation
of the drug as soon as any of the above symptoms makes its appearance. I state
that in this situation, `Amikacin' could not have been avoided if the danger to
the life of the patient had to be thwarted. The diagnosis of Dr. M.F. D'Souza
and the line of treatment adopted and administered to the said Shri Mohd.
Ishaq, who was suffering from a renal failure in addition to the above specific
infections appears to be correct."
appellant has also filed his own affidavit before the National Consumer
Commission which we have perused. We have also seen the affidavit of Dr. Ashok
L. Kirpalani of Lady Ratan Tata Medical Centre, Bombay, who is MD in
Nephrology. He stated that the medicine prescribed by the appellant was
absolutely right in the circumstances in view of the fact, that the patient was
suffering serious life threatening infection.
may also refer to the affidavit of Mrs. Mukta Kolekar of Bombay Indian
Inhabitant, who is a Senior Sister attached to the hospital. She has stated in
her affidavit as follows :- "I know Dr. Martin F.D'Souza who is a
Nephrologist and who is attached to the said hospital since 1984. I say that I
know Mr. Mohd. Ishaq. I distinctly remember him, as very few patients are as
ill-tempered arrogant and obstinate like him. The said Mohd. Ishaq came to the
said hospital as an outdoor as well as indoor patient for Haemodialysis on a
number of occasions commencing from the month of April, 14th 1991 till 20th
June, 1991 till 8th June, 1991 until suo moto he left the hospital. I say that
on 11th June, 1991 the said Mohd. Ishaq came to the hospital for the purpose of
Haemodialysis. He had come of his own and he had no problem either in walking
or in hearing. Nothing abnormal was found in him. However, during Haemodialysis,
he complained to the Doctor of ringing in the ears and thereupon Dr. Martin
F.D'Souza called for the Discharge Card of the said Mohd. Ishaq and verified
the medicine and injections which were prescribed and on verification, Dr.
Martin F.D'Souza immediately deleted injection Amikacine and Cap. Augmentin and
put a cross against the prescription of the said injection, and immediately
gave instructions to me as well as to the other staff members not to give that
injection at all, and also told the said Mohd. Ishaq and his wife who had
accompanied him, not to take or get administered the said injection.
I say that after 11th
June, 1991, the said Mohd. Ishaq came to the hospital as an outdoor patient on
14th June, 17th June and 20th June, 1991 and did not make any complaint of any
nature whatsoever with regard to his hearing faculties. On the contrary, he
used to have conversation and used to respond to the same as an ordinary man.
The said Mohd. Ishaq used to come to hospital on his own without the assistance
or help of anybody and after the dialysis also he used to go on his own. Thus,
until 20th June, 1991, the said Mohd. Ishaq had no problems either in hearing
or in movement of the limbs or parts of his body or in lifting parts of his
body or in walking."
these deposition and affidavits it cannot be said that the appellant was
negligent. In fact most of the doctors who have deposed or given their
affidavits before the Commission have stated that the appellant was not
his written statement filed before the National Commission the appellant has
stated in paragraph 9 (q-r) as follows :
"(q) On the 11th
June,1991 the Complainant complained to Opposite Party of slight tinnitus or
ringing in the ear. Opposite Party immediately reviewed the treatment on the
discharge card in possession of the Complainant and asked the said Complainant
and also made his attendant i.e. his wife to understand and asked her also to
stop Injection Amikacin and Cap. Augmentin verbally as well as marked `X' on the
discharge card in his own hand writing i.e. on 11th June, 1991 i.e. 3 days
after discharge. Therefore, as per direction Opposite Party Complainant could
have taken or received Injection Amikacin only upto 10th June, 1991 when he
showed the very first and Preliminary side effect of Injection Amikacin.
Discharge Card as per
the Complainant's Complaint Annexure `3'speaks clearly that the said Injection
has been `X' crossed and he was directed not to take the said Injection from
11th June, 1991 i.e. on his very first complaint he made of ringing in the
ears, or tinnitus.
(r) On perusal of the
Xerox copies of the papers of the Cash Memo supplied by the Complainant as per
Annexure `4' it is evident that the Complainant against the advice of the
Opposite Party and in breach of assurances, high handedly and unilaterally had
been getting injected as late as 17th June, 1991 i.e. 7 days after he had been
instructed verbally and in writing in the presence of his attendant i.e. his
wife and staff members of the said hospital to stop Injection Amikacin/Cap.
Augmentin because of tinnitus as early as 11th June, 1991"
see no reason to disbelieve the above allegations of the appellant that on
11.6.1991 he had asked the respondent to stop taking Amikacin injections, and
in fact this version is corroborated by the testimony of the Senior Sister
Mukta Kolekar in her affidavit, relevant part of which has been quoted above.
Hence, it was the respondent himself who is to blame for having continued
Amikacin after 11.6.1991against the advice of the appellant.
in the statement of Dr. Ghosh before the National Consumer Dispute Redressal
Commission it has been stated that it is by no means established that Amikacin
alone can cause deafness. Dr. Ghosh stated that there are 8 factors that can
cause loss of hearing. Moreover, there are conflicting versions about the
deafness of the respondent. While the respondent stated that he became deaf in
June 1991, most of the Doctors who filed affidavits before the Commission have
stated that they freely conversed with him in several meetings much after 21st
June and in fact up to the middle of August 1991.
National Commission had sought the assistance of AIIMS to give a report about
the allegations of medical negligence against the appellant. AIIMS had
appointed Dr. Ghosh to investigate the case and submit a report and Dr. Ghosh
submitted a report in favour of appellant. Surprisingly, the Commission has not
placed much reliance on the report of Dr. Ghosh, although he is an outstanding
ENT specialist of international repute.
have carefully perused the judgment of the National Commission and we regret
that we are unable to concur with the views expressed therein. The Commission,
which consists of laymen in the field of medicine, has sought to substitute its
own views over that of medical experts, and has practically acted as
super-specialists in medicine. Moreover, it has practically brushed aside the
evidence of Dr. Ghosh, whose opinion was sought on its own direction, as well
as the affidavits of several other doctors (referred to above) who have stated
that the appellant acted correctly in the situation he was faced.
Commission should have realized that different doctors have different
approaches, for instance, some have more radical while some have more
conservative approaches. All doctors cannot be fitted into a straight-jacketed
formula, and cannot be penalized for departing from that formula.
this Court has no sympathy for doctors who are negligent, it must also be said
that frivolous complaints against doctors have increased by leaps and bounds in
our country particularly after the medical profession was placed within the
purview of the Consumer Protection Act. To give an example, earlier when a
patient who had a symptom of having a heart attack would come to a doctor, the
doctor would immediately inject him with Morphia or Pethidine injection before
sending him to the Cardiac Care Unit (CCU) because in cases of heart attack
time is the essence of the matter. However, in some cases the patient died
before he reached the hospital. After the medical profession was brought under
the Consumer Protection Act vide Indian Medical Association vs. V.P. Shantha
1995 (6) SCC 651 doctors who administer the Morphia or Pethidine injection are
often blamed and cases of medical negligence are filed against them. The result
is that many doctors have stopped giving (even as family physicians) Morphia or
Pethidine injection even in emergencies despite the fact that from the symptoms
the doctor honestly thought that the patient was having a heart attack. This
was out of fear that if the patient died the doctor would have to face legal
in cases of head injuries (which are very common in road side accidents in
Delhi and other cities) earlier the doctor who was first approached would
started giving first aid and apply stitches to stop the bleeding. However, now
what is often seen is that doctors out of fear of facing legal proceedings do
not give first aid to the patient, and instead tell him to proceed to the
hospital by which time the patient may develop other complications.
Courts/Consumer Fora should keep the above factors in mind when deciding cases
related to medical negligence, and not take a view which would be in fact a
disservice to the public. The decision of this Court in Indian Medical
Association vs. V.P. Shantha (Supra) should not be understood to mean that
doctors should be harassed merely because their treatment was unsuccessful or
caused some mishap which was not necessarily due to negligence. In fact in the
aforesaid decision it has been observed (vide para 22) :- "In the matter
of professional liability professions differ from other 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."...............
may be mentioned that the All India Institute of Sciences has been doing
outstanding research in Stem Cell Therapy for the last eight years or so for
treating patients suffering from paralysis, terminal cardiac condition,
parkinsonism, etc, though not yet with very notable success. This does not mean
that the work of Stem Cell Therapy should stop, otherwise science cannot
therefore, direct that whenever a complaint is received against a doctor or
hospital by the Consumer Fora (whether District, State or National) or by the
Criminal Court then before issuing notice to the doctor or hospital against
whom the complaint was made the Consumer Forum or Criminal Court should first
refer the matter to a competent doctor or committee of doctors, specialized in
the field relating to which the medical negligence is attributed, and only
after that doctor or committee reports that there is a prima facie case of medical
negligence should notice be then issued to the concerned doctor/hospital. This
is necessary to avoid harassment to doctors who may not be ultimately found to
be negligent. We further warn the police officials not to arrest or harass
doctors unless the facts clearly come within the parameters laid down in Jacob
Mathew's case (supra), otherwise the policemen will themselves have to face
the present case the appellant was faced with an extremely serious situation.
Had the appellant been only suffering from renal failure it is possible that a
view could be taken that the dose prescribed for the appellant was excessive.
respondent was not only suffering from renal failure but he was also suffering
from urinary tract infection and also blood infection i.e Septicaemia which is
blood poisoning caused by bacteria or a toxin. He had also extremely high urea.
In this extremely
serious situation, the appellant had naturally to take a drastic measure to
attempt to save the life of the respondent. The situation was aggravated by the
non-cooperation of the respondent who seems to be of an assertive nature as
deposed by the witnesses. Extraordinary situations require extraordinary
remedies. Even assuming that such a high dose of Amikacin would ordinarily lead
to hearing impairment, the appellant was faced with a situation between the
devil and the deep sea. If he chose to save the life of the patient rather than
his hearing surely he cannot faulted.
the present case the blood urea of the respondent was found to be mgs.% whereas
normally it should not exceed 10-50 mgs.%. This shows that very serious
infection in the kidney of the respondent was taking place which required
allegation against the appellant is that he gave overdose of the antibiotic. In
this connection it may be mentioned that antibiotics are usually given for a
minimum of five days, but there is no upper limit to the number of days for
which they should continue, and it all depends on the condition of the patient.
Giving lesser dose of
antibiotic may create other complications because it can cause resistance in
the bacteria to the drug, and then it will be more difficult to treat.
regards the impairment of hearing of the respondent it may be mentioned that
there is no known antibiotic drug which has no side effect. Hence merely
because there was impairment in the hearing of the respondent that does not
mean that the appellant was negligent. The appellant was desperately trying to
save the life of the respondent, which he succeeded in doing. Life is surely
more important than side effects.
example many Anti Tubercular drugs (e.g. Streptomycin) can cause impairment of
hearing. Does this mean that TB patients should be allowed to die and not be
given the Anti Tubercular drug because it impairs the hearing? Surely the
answer will be in the negative.
courts and Consumer Fora are not experts in medical science, and must not
substitute their own views over that of specialists. It is true that the
medical profession has to an extent become commercialized and there are many
doctors who depart from their Hippocratic oath for their selfish ends of making
money. However, the entire medical fraternity cannot be blamed or branded as
lacking in integrity or competence just because of some bad apples.
must be remembered that sometimes despite their best efforts the treatment of a
doctor fails. For instance, sometimes despite the best effort of a surgeon, the
patient dies. That does not mean that the doctor or the surgeon must be held to
be guilty of medical negligence, unless there is some strong evidence to
suggest that he is.
the facts of this particular case, we are of the opinion that the appellant was
not guilty of medical negligence. Resultantly, the appeal is allowed; the
impugned judgment and order of the National Commission is set aside. No costs.